JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2021 (further written submissions on 17 and 18 March 2021)
DATE OF RULING:	24 March 2021
CASE MAY BE CITED AS:	Percival & Ors v Bare (Privilege Ruling)
MEDIUM NEUTRAL CITATION:	[2021] VSC 135

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PRACTICE AND PROCEDURE – Client legal privilege – Conversation with expert recorded in file note – Waiver alleged on basis of disclosure of content of file note in plaintiffs’ solicitor’s affidavit – Whether conduct inconsistent with maintenance of privilege – Scope of waiver – Privilege found to be waived – File note of conversation produced in part – Evidence Act 2008 ss 122(2), 122(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms A De Souza	Carroll & O’Dea Lawyers
For the Defendant	Ms Jones, solicitor	HWL Ebsworth Lawyers

TABLE OF CONTENTS

Introduction and summary.............................................................................................................. 1

Preliminary matter............................................................................................................................. 2

Applicable principles........................................................................................................................ 4

Plaintiffs’ submissions..................................................................................................................... 7

Defendant’s submissions................................................................................................................. 8

Analysis.............................................................................................................................................. 10

Conclusion......................................................................................................................................... 14

HER HONOUR:

Introduction and summary

The substantive dispute in this proceeding concerns a claim for damages in negligence. The plaintiffs are the wife, son and daughter of Mr Craig Percival, who died on 4 December 2016 from a pulmonary embolus and global cerebral hypoxia, six days after knee surgery performed by the defendant. Relevantly, the plaintiffs allege the defendant was negligent in failing to recommend or order that Mr Percival receive anticoagulation treatment following the operation.

This ruling addresses a more limited, peripheral question of whether legal professional (or client legal) privilege has been waived over a particular document. The question arose as follows. The plaintiffs filed a writ on 13 November 2019, and a statement of claim on 16 January 2020. By summons filed on 17 February 2021, the plaintiffs sought leave to amend their statement of claim to include allegations in relation to the defendant’s alleged negligence in failing to note and consider Mr Percival’s varicose veins. The plaintiffs’ solicitor, Mr Madden, swore an affidavit in support of the application to amend (‘Madden affidavit’).[1] At paragraph 7 of the Madden affidavit, Mr Madden referred to a telephone conversation he had in relation to his clients’ case, in the following terms:

On 22 December 2020 I had a telephone conversation with an orthopaedic surgeon other than Dr Sekel.[2] In the course of that discussion the surgeon asked me some questions about the post-operative pain suffered by Mr Percival and also mentioned varicose veins as a factor which may have been relevant to the need for postoperative anticoagulation.

[1]Sworn and filed on 17 February 2021.

[2]Dr Sekel is an orthopaedic surgeon who has provided reports, both before and after the Madden affidavit, in support of the plaintiffs’ allegations of breach of duty.

Mr Madden prepared a file note of that conversation (‘file note’).

In response to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Percival v Bare (Privilege Ruling)

Details

AGLC: Percival v Bare (Privilege Ruling) [2021] VSC 135
Case: [2021] VSC 135
Decision Date: 24 March 2021

CaseChat Overview and Summary

Percival and Bare were involved in a legal dispute which was heard by the court. The core issue in the case was whether client legal privilege had been waived by the disclosure of the content of a file note in the plaintiffs’ solicitor’s affidavit. The file note in question was a record of a conversation with an expert, and it was argued that its disclosure constituted a waiver of privilege. The court was required to determine whether the conduct of the plaintiffs’ solicitor was inconsistent with maintaining the privilege and, if so, to what extent the privilege had been waived.

In examining the matter, the court considered the provisions of the Evidence Act 2008, specifically sections 122(2) and 122(3), which pertain to the circumstances under which privilege may be lost. The court found that the disclosure of the content of the file note in the affidavit did indeed amount to a waiver of privilege. The plaintiffs’ solicitor had effectively communicated the substance of the privileged communication to third parties, which was inconsistent with the maintenance of the privilege. Consequently, the court concluded that the privilege had been waived to the extent that the content of the file note had been disclosed.

The court ordered that part of the file note containing the conversation with the expert be produced. This decision underscored the importance of maintaining confidentiality in legal communications, highlighting the potential consequences when privilege is breached through inadvertent disclosure. The ruling served as a reminder to legal practitioners of the need to carefully manage privileged information to avoid unintentional waivers of privilege.

Orders