Percival v Bare (Privilege Ruling)
[2021] VSC 135
•24 March 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI 2019 05118
| LINDELL PERCIVAL & ORS (according to the attached Schedule) | Plaintiffs |
| v | |
| DR JONATHAN BARE | Defendant |
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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 Madden affidavit, the defendant’s solicitor, Ms Jones, affirmed an affidavit (‘Jones affidavit’)[3] which, inter alia, alleged that the plaintiffs had not discovered or produced a copy of the file note, and, to the extent that the plaintiffs asserted the file note was privileged, that privilege had been waived by reason of its summation in the Madden affidavit.
[3]Affirmed and filed 19 February 2021.
On 26 February 2021, I heard the plaintiffs’ application to amend their statement of claim. At that hearing, oral submissions were made by each of the parties in relation to the alleged waiver of privilege. I made orders following the hearing that the plaintiffs have leave to amend their statement of claim. I also reserved my ruling in respect of whether privilege over the file note had been waived, and ordered that the file note be produced to the Court for confidential inspection.
It is common ground that the conversation was privileged. The issue in dispute is whether or not client legal privilege was waived over the file note.
For the reasons which follow, I have concluded that client legal privilege over part of the file note was waived by the plaintiffs’ solicitor. The file note ought be produced in part to the defendant.
Preliminary matter
In the course of preparing this ruling, I considered the issue of whether, despite the parties’ submissions as to privilege being predicated on the Evidence Act 2008 (Vic) (‘the Act’) applying, common law principles in fact applied to the determination of this dispute. This is because the provisions of the Act apply in determining privilege issues in the pre-trial stage only where s 131A of the Act is satisfied.
Section 131A provides:
Application of Part to preliminary proceedings of courts
(1) If-
(a)a person is required by a disclosure requirement to give information, or to produce a document which would result in the disclosure of a communication, a document or its contents or other information of the kind referred to in Division 1, 1C or 3; and
(b)the person objects to giving that information or providing that document –
the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.
(2)In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following –
(a)a summons or subpoena to produce documents or give evidence;
(b)pre-trial discovery;
(c)non-party discovery;
(d) interrogatories;
(e)a notice to produce;
(f)a request to produce a document under Division 1 of Part 4.6;
(g)a search warrant.
I invited the parties to make further, brief submissions on the applicability of s 131A.
The parties were agreed that s 131A was engaged and the provisions of the Act applied to the determination of this dispute.[4] The defendant submitted that the plaintiffs were under a relevant ‘disclosure requirement’, being pre-trial discovery as set out in s 131A(2)(b), and by reason of r 29.15 of the Supreme Court (General Civil Procedure Rules) 2015 (‘the Rules’), were under a continuing obligation to make discovery. The plaintiffs accepted the waiver dispute was in relation to pre-trial discovery as contemplated by s 131A(2)(b). Further, it was agreed that as it was the plaintiffs who were under the relevant disclosure requirement and the plaintiffs who were objecting to the production, s 131A was engaged.
[4]Defendant’s Further Submissions filed on 17 March 2021; Plaintiffs’ Further Submissions filed on 18 March 2021.
The defendant alternatively submitted that even on the application of common law principles, the plaintiffs had waived privilege over the file note. The plaintiffs, similarly, alternatively submitted that on the application of common law principles, there had been no waiver.
I am satisfied that s 131A is engaged and the provisions of the Act apply in the circumstances. On 19 March 2020, Clayton JR made an order that all parties were to make discovery (including full inspection) in accordance with the Rules and file and serve and affidavit of documents by 1 May 2020. It is s 131A that applies where orders are made by the Court for the disclosure of information or a document in pre-trial discovery.[5]
[5]EFM Logistics v Weerden [2019] VSC 100, [3], [6].
Applicable principles
The relevant provisions of the Act are as follows:
119 Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of –
(a)a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b)the contents of a confidential document (whether delivered or not) that was prepared –
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
…
122 Loss of client legal privilege - consent and related matters
(1)This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.
(2)Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
(3)Without limiting subsection (2), a client or party is taken to have so acted if –
(a)the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
(b)the substance of the evidence has been disclosed with the express or implied consent of the client or party.
(4)The reference in subsection (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.
(5)A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because –
(a) the substance of the evidence has been disclosed –
(i)in the course of making a confidential communication or preparing a confidential document; or
(ii)as a result of duress or deception; or
(iii)under compulsion of law; or
(iv)if the client or party is a body established by, or a person holding an office under, an Australian law - to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held; or
(b)of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or
(c)of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.
…
Recently in Viterra Malt Pty Ltd v Cargill Australia Ltd,[6] the Court of Appeal made the following authoritative statements on s 122 of the Act and associated case law:
[6](2018) 58 VR 333 (Whelan, Kyrou and McLeish JJ) (‘Viterra v Cargill’).
The issue in the present application is to be determined by the application of s 122(2) of the Evidence Act …
Although s 122(2) is directed at the adducing of evidence, it applies also to the giving of information or the production of a document in other circumstances, including pre-trial discovery: s 131A. Sections 118-120 prevent the adducing of evidence of communications protected by client legal privilege. The exception in s 122(5) is not relevant to the present case.
Section 122(2) was adopted in the above form in order to reflect the common law test for implied waiver articulated by the High Court in Mann v Carnell.[7] Gleeson CJ, Gaudron, Gummow and Callinan JJ there stated:
[7](1999) 201 CLR 1 (‘Mann’).
What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.[8]
[8]Ibid 13 [29].
In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd, French CJ, Kiefel, Bell, Gageler and Keane JJ stated that the court:
will impute an intention [to waive privilege] where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.[9]
The Court went on to say that the law looks chiefly to the conduct and position of the person who is said to have waived privilege, in order to see whether that person has ‘approbated’ so as to prevent him or her from ‘reprobating’. The Court stated that its observations applied both to waiver at common law and to s 122(2).[10]
The parties took us to a number of cases in which courts have dealt with questions of implied waiver of client legal privilege or common law legal professional privilege. They did so, both in order to propound a test suitable for application to the present case, and to provide illustrations of circumstances for comparison to this matter. Two notes of caution must be sounded in this respect.
The first is that, notwithstanding that the High Court has made it clear that the common law and s 122(2) are closely related, the question to be asked is the statutory test posed by s 122(2), namely whether the [party has] ‘acted in a way that is inconsistent with … objecting’ to the production of the privileged documents sought.
Secondly, as the cases themselves make clear, there is no settled list of kinds of action which, by their very nature, give rise to implied waiver: each case must depend upon its own facts and circumstances and drawing generalisations from other cases may be dangerous.[11]
…
The above review of the cases makes it plain that there is a single test to be applied, being that in s 122(2) of the Evidence Act. Assistance in understanding and applying that test may be derived from Mann v Carnell and other authorities applying either the common law or the statutory provision. However, each case will depend upon its own facts and circumstances and the drawing of general principles beyond the statement of inconsistency test may risk departing from the terms of the statute.[12]
[9](2013) 250 CLR 303, 315 [30], citing Mann (1999) 201 CLR 1, 13 [29].
[10]Ibid 315-16 [31]-[32].
[11]See, eg, Archer Capital 4A Pty Ltd v Sage Group plc (2013) 306 ALR 414, 422 [26]; Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341, 358-9 [60].
[12]Viterra v Cargill (2018) 58 VR 333, [37]-[44], [72].
Thus, as stated by the Court of Appeal, the relevant test is that contained in s 122(2) of the Act. In QUBE Logistics (Vic) Pty Ltd v Wimmera Container Line Pty Ltd,[13] Digby J held:
The QUBE submissions correctly recognise that s 122(2) is the key provision of the Act in this regard, requiring the establishment of conduct inconsistent with the maintenance of the relevant privilege. This is not to ignore the provisions of s 122(3) which I recognise are in effect deeming provisions and form a subset of defined conduct which, if satisfied, will establish relevant inconsistency.[14]
[13][2013] VSC 695 (‘QUBE Logistics’).
[14]Ibid [133].
Once either sub-section (a) or (b) of s 122(3) of the Act is satisfied it is unnecessary to consider additionally whether the party has acted inconsistently with maintaining the privilege under s 122(2).[15] Section 122(3) is a deeming provision, providing that if a client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or the substance of the evidence has been disclosed with the express or implied consent of the client or party, then it is unnecessary to inquire whether the party’s actions were inconsistent with continuing to maintain privilege, because that is taken to be so.[16]
[15]Lactalis Jindi Pty Ltd v Jindi Cheese Pty Ltd [2013] VSC 475, [58], [60] (‘Lactalis’).
[16]See, eg, Perton v Walters (2018) 56 VR 306, [49]; Lactalis [2013] VSC 475, [29]-[30]. See also QUBE Logistics [2013] VSC 695, [73], [92], [102].
Plaintiffs’ submissions
The plaintiffs rely on the Madden affidavit, written submissions filed on 24 February and 18 March 2021, and oral submissions made by counsel at the hearing on 26 February 2021.
The determination of whether the substance of the particular communication has been disclosed requires that a quantitative assessment of the degree of the disclosure must be made.[17]
[17]Citing Adelaide Steamship Co Limited v Spalvins (1998) 81 FCR 360, 371 (‘Spalvins’); Lactalis [2013] VSC 475, [39]-[40].
The Madden affidavit does not sufficiently disclose the substance of the file note for the purposes of s 122(3)(a) of the Act. Mr Madden has not disclosed the gist or conclusion of the conversation,[18] merely referring to a small portion of the conversation. The reference to the conversation is not inconsistent with the maintenance of privilege in that the plaintiffs rely on the conversation only to explain how Mr Madden became aware that Mr Percival’s varicose veins may be a relevant consideration. The plaintiffs do not intend to rely on the file note at trial.
[18]Citing Mann (1999) 201 CLR 1.
The onus is on the defendant to establish that privilege has been waived. The defendant is unable to do so.
Alternatively, if the Court finds privilege was waived, inspection of the file note should only be allowed to the extent of the waiver. Only the material relevant to paragraph 7 of the Madden affidavit should be provided to the defendant for inspection, namely the portion of the file note referencing varicose veins. The rest of the file note ought be redacted.[19]
[19]Citing Lactalis [2013] VSC 475, [67].
Defendant’s submissions
The defendant relies on the Jones affidavit, written submissions filed on 24 February and 17 March 2021 and oral submissions made at the hearing on 26 February 2021.
The plaintiffs have acted inconsistently with a claim for privilege, referring to both s 122(2) and the decision in Mann v Carnell.[20] Alternatively, both sub-sections (a) and (b) of s 122(3) are satisfied.
[20](1999) 201 CLR 1.
The file note was made over two months ago. The plaintiffs have not made supplementary discovery of the file note or made a claim for privilege in respect of it. The onus is only on the defendant to establish that privilege has been waived where that privilege is first claimed. The defendant understands now from the plaintiffs’ written submissions that they claim privilege in respect of the file note.
The plaintiffs have acted inconsistently with maintaining a claim for privilege over the file note by summarising its contents in the Madden affidavit. It was summarised to establish that the plaintiffs’ application for an amendment to their pleadings has a proper basis. The plaintiffs relied on the advice provided by a new expert and summarised in the file note in bringing the amendment application. While the plaintiffs submit that they will not rely on the file note at the trial, they rely on the file note for the amendment application. Their reliance necessarily amounts to a waiver of privilege in that their actions are inconsistent with privilege being maintained.
Otherwise, there is sufficient evidence for the Court to conclude that either s 122(3)(a) or (b) of the Act is satisfied as the plaintiffs knowingly and voluntarily disclosed the substance of the confidential communication by summarising its contents in the Madden affidavit. The disclosure was voluntary in that it was not made under the compulsion of law,[21] and the disclosure was made by the plaintiffs’ solicitor on behalf of the plaintiffs.[22]
[21]Behan v Melbourne Health [2021] VCC 44, [14] citing Spalvins (1998) 81 FCR 360, 371.
[22]Behan v Melbourne Health [2021] VCC 44, [14] citing Sovereign Motor Inns Pty Ltd v Bevillesta [2000] NSWSC 521, [24].
In assessing whether the substance of the evidence has been disclosed, relevant common law authorities indicate that ‘the disclosure of the conclusion reached in or course of action recommended by, an advice can amount to waiver of privilege… notwithstanding that [the] reasoning is not disclosed’.[23] The conclusion of the orthopaedic surgeon is summarised in the Madden affidavit when it is deposed that the surgeon ‘mentioned varicose veins as a factor which may have been relevant to the need for postoperative anticoagulation’. This must be regarded as the conclusion as it was the very point which prompted the plaintiffs to undertake further investigations, seek further expert evidence and seek to amend their pleadings.
[23]Lactalis [2013] VSC 475, [44] quoting Bennett v Chief Executive Officer, Australian Customs Service (2004) 140 FCR 101, 105.
Authorities applying the Act in determining whether the substance of a confidential communication has been disclosed deal mainly with the disclosure of legal advice. A recent County Court decision, Behan v Melbourne Health,[24] found the disclosure of clients’ instructions in letters of instructions to experts amounted to a substantive disclosure of a confidential communication where there was an extensive use of the clients’ instructions, and accordingly legal professional privilege was held to be waived. The decision in Behan v Melbourne Health is similar to the facts of this case, and although it is not binding, it is applicable.
[24][2021] VCC 44.
While each case turns on its specific facts, and the question of waiver will be one of ‘fact and degree’, the authorities allow the Court to find that a sufficient summation of advice upon which the plaintiffs rely, and which was voluntarily disclosed, is sufficient for the Court to find that privilege was waived over the file note.
The Court should inspect the file note to assess the plaintiffs’ submission that the reference in paragraph 7 of the Madden affidavit ‘merely referred to a small portion of the conversation’.
Analysis
The file note is an undated, handwritten note numbering four pages. It was produced to the Court and has been inspected.
As noted above, s 122(2) is the relevant, key provision of the Act, with s 122(3) setting out a subset of defined conduct which will establish the relevant inconsistency. In understanding and applying the test in s 122(2), the Court may look to other authorities applying either the common law or the statutory provision, but caution must be exercised not to depart from the terms of the section.
Recently, in Bradford v Devlot 17 Pty Ltd (‘Bradford’),[25] a decision involving the application of common law principles, Kennedy J considered the situation where privileged communications were disclosed in a witness statement which the plaintiffs subsequently indicated they did not intend to rely on. Notwithstanding this position, Kennedy J considered it significant that the subject matter of the disclosures remained relevant to the issues in dispute. Her Honour considered the relevant context in which the witness statement was disclosed, including that it led to the filing of further evidence, was relevant to an issue in the pleadings, was calculated to support an earlier statement and could be expected to affect settlement negotiations. In concluding that privilege had been waived, her Honour referred to the ‘deploying’ of the privileged communications by the plaintiffs, which was inconsistent with maintaining privilege.[26]
[25][2020] VSC 792 (‘Bradford’).
[26]Ibid [53]-[57].
I have firmly in mind the cautions evident from authorities that each case must be decided on its own facts, and only limited guidance can be found from other cases unless they arise from similar facts. However, the observations made by Kennedy J in Bradford are apposite to the use made of the confidential communication in this case.
The plaintiffs submit that the disclosure does not relate to any of the pleaded issues, as the plaintiffs are not relying on any part of the confidential conversation in the proceeding. I am not persuaded by this submission. The disclosure is relevant to the issues in dispute in the proceeding – in fact, the purpose of the disclosure was to extend the issues in dispute, which the Court has now allowed by giving leave to file and serve an amended statement of claim. That the plaintiffs do not intend to rely on the file note itself at trial is immaterial; they relied on the file note at the application to amend the statement of claim. They consciously deployed the content of the confidential communication to support their application for amendment. Further, the privileged communication led to the filing of further evidence from Dr Sekel, on which the plaintiffs do intend to rely at the trial. The plaintiffs accept that this occurred, but argue that, in contrast to the circumstances in Bradford, the disclosure itself of the privileged communication did not lead to the filing of further evidence. In circumstances where the defendant has foreshadowed the need to obtain a further expert report on the new allegations included in the amended statement of claim – which amendment resulted from the disclosure – I am similarly unconvinced by this submission. I am satisfied that the plaintiffs have acted in a way that is inconsistent with maintaining privilege over the file note, as contemplated by s 122(2) of the Act.[27]
[27]See also Merck Sharp & Dohme Corporation v Wyeth LLC (No 2) [2019] FCA 1615 where Burley J considered it was inconsistent for a party to maintain a claim for legal professional privilege over advice referred to in an affidavit which supported an amendment application and which put forward reasons for the timing and content of the amendment of its case.
It remains, however, to consider the scope of the waiver. In Lactalis Jindi Pty Ltd v Jindi Cheese Pty Ltd,[28] Almond J, having concluded that both sub-sections (a) and (b) of s 122(3) were established in respect of the disclosure of a legal opinion, declined to order that the whole of the opinion be made available for inspection. His Honour considered, without inspecting the opinion, that it may contain advice on other matters unrelated to the prospects of success of the pleaded claims which had been disclosed. Waiver had only been established in respect of those particular claims. By ordering that the contents relating to other matters be redacted, effect was given ‘to the policy that the courts will endeavour to protect a client’s legal professional privilege and will allow inspection only to the extent of any waiver that is established’.[29]
[28][2013] VSC 475.
[29]Ibid [67] citing Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 137 ALR 28, 35.
In Bradford, Kennedy J addressed various judicial statements in respect of considering the scope of waiver, including ‘that the holder of the privilege should not be able to abuse it by using it to create an “inaccurate perception” of the protected communication’,[30] and ‘whether the material that the party has chosen to release represents the whole of the material relevant to “the same issue or subject matter”’.[31] Her Honour emphasised, however, that these various statements should not detract from the primary task of determining inconsistency with respect to the specific facts of the matter before the Court.[32]
[30]Bradford [2020] VSC 792, [73] citing Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475, 484.
[31]Bradford [2020] VSC 792, [73] citing AWB Ltd v Cole (No 5) (2006) 155 FCR 30, 76 [164].
[32]Bradford [2020] VSC 792, [73] citing Viterra v Cargill (2018) 58 VR 333, 344 [44].
Paragraph 7 of the Madden affidavit discloses some of the content of confidential communications between Mr Madden and an unidentified orthopaedic surgeon. It is the only paragraph which is said to contain a relevant disclosure, and consequential waiver. The ‘subject matter’ or ‘issue’ which is the subject of the paragraph is post-operative pain suffered by Mr Percival and the contention that varicose veins could be a relevant factor to the need for post-operative anticoagulation. Having inspected the file note, I agree with the plaintiffs’ submission that Mr Madden has not disclosed the gist or conclusion of the whole conversation recorded in the file note, merely referring to a portion of the total conversation that took place between Mr Madden and the surgeon. It suffices to say that the file note contains a record of communications unrelated to the subject matter of paragraph 7 of the Madden affidavit as stated. To put it differently, there are other communications recorded in the file note the maintenance of privilege over which would not give rise to the relevant inconsistency, or ‘approbation and reprobation’, with which the authorities are concerned. Having inspected the file note, I do not consider that releasing only a portion of it is relevantly unfair, or risks giving a partial or misleading perception of the communication to the defendant.
Having determined that privilege has been waived by reason of inconsistency within the meaning of s 122(2), it is not strictly necessary for me to consider s 122(3). However, I will do so briefly. There can be no real dispute that disclosure in this case was knowing and voluntary, or alternatively, with the express or implied consent of the plaintiffs. The disclosure was made by the plaintiffs’ solicitor to establish that the plaintiffs’ application for an amendment to their pleadings had a proper basis - without any indication to the contrary, the plaintiffs must be taken to have known the disclosure was made. The disclosure was made deliberately, and was not the result of a mistake or compulsion of law. In the absence of any allegation to the contrary, it can be inferred that the plaintiffs instructed their solicitor to file the documents necessary to support their application for an amendment, and so the disclosure was made with their express or implied consent.[33]
[33]See, eg, Lactalis [2013] VSC 475, [31]-[36].
The real question arising under s 122(3) is whether the plaintiffs have disclosed the ‘substance of the evidence’. It is accepted that the relevant test ‘is a quantitative one, which asks whether there has been sufficient disclosure to warrant loss of the privilege’.[34] The defendant relied on the decision of the County Court in Behan v Melbourne Health,[35] where Pillay J concluded the substance of the evidence had been disclosed where there had been extensive recounting of specific client instructions to an expert.
[34]Spalvins (1998) 81 FCR 360, 371, adopted in Lactalis [2013] VSC 475, [40].
[35][2021] VCC 44.
Having inspected the file note, I accept the plaintiffs’ submission that Mr Madden has not disclosed the gist or conclusion of the whole of the conversation which is recorded in the file note. On balance, this would lead me to conclude, were it necessary for me to do so, that there has not been sufficient disclosure of the file note in the Madden affidavit to constitute disclosure of its entire substance.
Conclusion
In my view, privilege has been waived in respect of that part of the file note referring to post-operative pain and to varicose veins as a factor relevant to the need for post-operative anticoagulation. The other content should be redacted so as to reflect these reasons.
I propose to make the following order: A copy of the file note, to be unredacted from word ‘Symptoms’ on page 3, be produced by the plaintiffs for inspection by the defendant.
SCHEDULE OF PARTIES
| S ECI 2019 05118 | |
| BETWEEN: | |
| LINDELL PERCIVAL | First Plaintiff |
| SAM PERCIVAL | Second Plaintiff |
| SIENNA PERCIVAL | Third Plaintiff |
| - v - | |
| DR JONATHAN BARE | Defendant |
0
18
0