Palamara v Bradford and Anor (Ruling)
[2015] VCC 816
•12 June 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
MEDICAL LIST
Case No. CI-12-04821
| BELINDA PALAMARA | Plaintiff |
| v | |
| MICHAEL BRADFORD | First Defendant |
| and | |
| CENTRAL GIPPSLAND HEALTH SERVICE | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 May 2015 | |
DATE OF RULING: | 12 June 2015 | |
CASE MAY BE CITED AS: | Palamara v Bradford & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 816 | |
RULING
---
Subject: EVIDENCE
Legislation Cited: Evidence Act 2008 (Vic)
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Foy | Maurice Blackburn Pty Ltd |
| For the First Defendant | No appearance | Self-represented |
| For the Second Defendant | Mr S Cash | K & L Gates |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks damages against the first and second defendants in respect of the cause of action particularised in the plaintiff’s Amended Statement of Claim dated 12 March 2015.
2 In the proceeding, the plaintiff alleges that the first defendant, a qualified social worker and member of the Australian Association of Social Workers (“the Association”), who was at all material times:
· employed by the second defendant; and
· engaged by the second defendant to provide counselling services to the plaintiff;
engaged in an inappropriate personal relationship with the plaintiff, by reason of which the plaintiff has suffered injury, loss and damage in respect of which she is entitled to compensation.
3 There is no issue between the parties:
(i) that the plaintiff and the first defendant engaged in a number of personal conversations by means of text messages which were exchanged between them which were recorded on the plaintiff’s mobile telephone (the text messages);
(ii) that the plaintiff seeks to rely on the content of those messages, in the claim she makes against both the first and second defendants in this instance;
(iii) that the alleged conduct by the first defendant which is the subject of this claim, was referred to the Association for investigation, in the course of which process a Confidentiality Agreement was executed between the plaintiff and the Association on 28 October 2009 (the Confidentially Agreement).
(iv) that the plaintiff, prior to executing the Confidentiality Agreement, downloaded the text messages from her telephone and, in doing so, generated a hard paper copy of those messages. (Whilst an issue arises as to whether the copy generated by the plaintiff was a full and accurate copy of all the messages passing between the plaintiff and the first defendant, I will refer to the relevance of this issue in due course);
(v) that having executed the Confidentiality Agreement, the plaintiff provided the Association with her mobile telephone, and the Association downloaded from the plaintiff’s mobile telephone, a hard copy printed format of the messages passing between the plaintiff and the first defendant (the Association Transcript).
4 In this proceeding, the plaintiff seeks an order —
(i) allowing her to rely on the hard copy created by her of the text messages, which hard copy was generated prior to the signing by her of the Confidentiality Agreement;
(ii) allowing her to rely on the hard copy of the text messages which were downloaded by the Association after the date upon which she entered the Confidentiality Agreement;
(iii) allowing her to rely on the hard copy of the text messages which has been produced by the first defendant.
The Plaintiff is entitled to give viva voce evidence that she received text messages from the first defendant and as to the content of those text messages
5 By reason of the fact that the first defendant is self-represented in this instance, and for the purpose of removing any doubt as to this issue, for the reasons I will set out in the course of this ruling, it is appropriate that I make it clear that there is no basis upon which it could be contended that the plaintiff should not be allowed to give viva voce evidence as to the fact that she received text messages from the first defendant and as to the content of those text messages.
The relevant terms of the Confidentiality Agreement
6 It is the first defendant’s position that the terms of the Confidentiality Agreement are such that they prevent the plaintiff from relying upon the hard copy of the text messages which were downloaded by the Association.
7 The Confidentiality Agreement signed by the plaintiff included the following statement:
“I understand and agree to abide by this Confidentiality Agreement as set forth above and will treat all associated materials and processes confidentially.”
8 The Confidentiality Agreement contained the following sub-paragraphs under the heading “Statement of Understanding”:
·“I understand, and accept and will respect the confidential nature of all my dealings in relation to the Ethics Complaints Management Process (‘ECMP’).
·I will keep the Confidential Information secret and confidential at all times.
·I will not use the Confidential Information except to carry out the responsibilities of my role as a participant in this matter.
·I will not disclose any Confidential Information to anyone except those members/consultants of the AASW who need to receive that information for the Ethics Complaints Management Process, and then only to the extent needed for each such person.
·I will not copy or distribute to any person or organisation any documents, materials, media or other things recording, containing, setting out or referring to any Confidential Information.
·My obligations set out in this agreement continue beyond my role in the AASW ECMP.”
9 The Confidentiality Agreement defines “confidential information” (the definition) as meaning:
“All information in any form or medium relating to a complainant or a respondent, their family, support persons, witnesses, or workplace and pertains to all materials and proceedings, including the respondent’s written response, the hearing, the Hearing Panel Report, appeals, discussions, associated correspondence and outcomes.”
Is the First Defendant entitled to enforce the plaintiff’s Confidentiality Agreement?
10 The Confidentiality Agreement into which the plaintiff entered on 28 October 2009 was an agreement to which both the plaintiff and the Association were parties.
11 The first defendant was not a party to the Confidentiality Agreement executed between the plaintiff and the Association.
12 In those circumstances, the first defendant has no entitlement to enforce the provisions of the Confidentiality Agreement, given that he was not a party to the Agreement.
13 Whilst this finding effectively determines the issues which arise in this case:
· given that the first defendant appears as a self-represented litigant; and
· for the purpose of removing any doubt as to this issue;
I am satisfied that I should go on to consider whether the provisions of the Confidentiality Agreement would preclude the plaintiff from relying upon the Association Transcript were the first defendant entitled to enforce that agreement.
14 For the reasons set out below, I am satisfied that, even were the first defendant entitled to enforce the Confidentiality Agreement, the plaintiff would be entitled to rely on any copy of the text messages from her mobile telephone regardless of whether that copy was made by the plaintiff, the Association, or anyone else, subject to the plaintiff satisfying the appropriate proofs as to:
· the authenticity of the relevant copy; and
· the relevance of the evidence in question.
If the First Defendant was entitled to rely on the Confidentiality Agreement, would the agreement operate so as to preclude the Plaintiff from relying upon the Association Transcript in this proceeding?
15 The definition of “confidential information” within the Confidentiality Agreement describes the material to which the definition refers as involving:
“all information in any form or medium relating to a Complainant or a Respondent. … .”
16 The question which arises in this instance is whether this phrase refers to:
(i) Information relevant to an activity which is the subject of the Ethics Complaints Management Process (the Complaint Process);
· which came into existence prior to the initiation of the complaint; and
· the detail of which was known to the party executing the Confidentiality Agreement before the agreement was entered into; and or
(ii) Information which came into existence by reason of the Complaint Process or came to the knowledge of the signatory to the Confidentiality Agreement by reason of the operation of the Complaint Process .
17 I am satisfied that the meaning of the word “information” as it is employed in the definition is capable of being construed to include either categories of information to which I have referred in the previous paragraph or both. For that reason, the use in the Agreement of the word “information” gives rise to an ambiguity as to the meaning of that word.
18 It is trite that where such an ambiguity arises in a contract, the issue is to be resolved by considering the totality of the agreement for the purpose of giving effect to the intention of the parties when executing the agreement.
19 There can be little doubt that the Complaint Process involves a process in which the Association undertakes an activity which is designed to serve both its members and the community in investigating complaints for the purpose of protecting the community from inappropriate conduct by its members.
20 In my opinion, it is beyond contention that the Association would be concerned to ensure that, in order to facilitate its investigative process, any “information” which came into existence by reason of that process should remain confidential.
21 The justification for that position lies in the fact that statements or admissions made by a complainant, a respondent or witnesses in the course of the Ethics Complaint Process might not be made where the party making such statement or admission lacks confidence that the material the subject of the statement or admission could not be used in another forum.
22 To suggest however that the aims and obligations of the Association would be advanced by requiring persons wishing to initiate or take part in the Complaint Process, surrendering their right to rely on information:
· which was within their possession prior to the initiation of such a process; and
· came to be within their possession independently of the complaint process
were they to commence a claim seeking compensation by reason of inappropriate behaviour of a social worker within the civil jurisdiction of this Court, makes no sense.
23 A confidentiality agreement of such breadth would have the effect of discouraging complainants to come forward and make reports to the Association, as doing so would result in the complainants being prejudiced or shut out in pursuing common law rights.
24 For these reasons, I am satisfied that the term “information” as employed in the Confidentiality Agreement should be defined as referring to information obtained by a complainant or a respondent by reason of their involvement in the Complaint Process and not information which was within their knowledge prior to becoming involved in that process.
Is the Association Transcript “information” within the meaning of that term as employed by the Confidentiality Agreement?
25 The appropriate analysis of the text messages in this instance, as they were created and sent by the first defendant to the plaintiff and vice versa, is that they simply involve written statements and written responses to those statements.
26 I am satisfied that the definition of a “document” within the Evidence Act[1] extends to the plaintiff’s mobile telephone upon which the original messages between the plaintiff and the first defendant was recorded in this instance and that the relevant document was generated by the date upon which the relevant exchange of text messages ceased.
[1]See the definition of “document” within the Dictionary of the Act which defines document as including anything from which writings can be produced
27 Given the timing of the creation of this document, it is clear that both:
· the content of the messages making up the document; and
· the existence of the document
were known to the plaintiff at the time at which each of the statements contained in the document were generated by the plaintiff or received by her. Accordingly, the Confidentiality Agreement does not in any way restrict the plaintiff’s use of the original text messages in this proceeding
28 In my opinion, there is no basis upon which it could be argued in the present circumstances that a relevant written statement made by the first defendant which:
· was made prior to the date upon which the plaintiff entered the Confidentiality Agreement with the Association;
· was in the possession of the plaintiff prior to the date upon which the plaintiff entered the Confidentiality Agreement with the Association;
· is found to be admissible by reason of the rules of evidence;
could be rendered inadmissible merely by reason of the plaintiff subsequently entering into the Confidentiality Agreement.
29 I accept the position put on behalf of the plaintiff that s47(2) of the Evidence Act has the effect of allowing a copy of the original text messages as they were contained on the plaintiff’s telephone to be admitted as evidence subject to appropriate proofs being established.
30 In my opinion the issue as to whether such a copy of the document comprising the text messages was generated:
· by the plaintiff creating the copy; or
· by some person or body other that the plaintiff creating the copy,
should have no relevance upon the admissibility of the copy if the requisite proofs are established in the course of the trial as to the relevance and authenticity of the copy.
31 The Association Transcript is nothing more than a copy of the plaintiff’s original “document”, which document was in existence before any complaint was made to the Association and before the plaintiff entered the Confidentiality Agreement.
32 Any copy of the original text messages which were recorded on the plaintiff’s mobile telephone has no status other than for the fact that it is a copy of the original messages and is admissible by reason of the operation of the provisions of the Evidence Act because it represents the original. Given that the copy derives its admissibility from the original, the time at which any copy is created is irrelevant to its admissibility.
33 For the reasons set out above, I am satisfied that the Association Transcript is not appropriately characterised as “information” as that term is employed within the Confidentiality Agreement and, accordingly, that the Confidentiality Agreement does not prevent the plaintiff from making use of the Association Transcript, subject to the plaintiff establishing the requisite proofs in the course of the trial with respect to the admission of that evidence.
34 As to whether the requisite proofs are established by the plaintiff in this instance, an issue clearly arises as to whether each of the transcripts of the text messages which are currently in existence represent a copy of the original text messages as that term is employed by s47(2) of Evidence Act; namely that it represents a document which, whilst not being “an exact copy of the document in question but”… “is identical to the document in question in all relevant respects”.
35 Given the point taken by the first defendant as to this issue, this is clearly a matter to be dealt with at the trial of this proceeding and I will leave to the trial Judge the final determination as to whether to admit or exclude the relevant evidence.
36 I am satisfied however, that should the plaintiff establish any document to be a copy of the text messages which were contained upon the plaintiff’s mobile telephone in accordance with the provisions of s47(2) of the Evidence Act, the plaintiff is entitled to rely upon any such copy whether or not it was generated:
· before or after the execution by the plaintiff of the Confidentiality Agreement; and
· by the plaintiff or by any other person, including the Association.
- - -
0
0
0