Price v Calvary Healthcare Adelaide Incorporated
[2013] SADC 46
•12 April 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PRICE v CALVARY HEALTHCARE ADELAIDE INCORPORATED AND ANOR
[2013] SADC 46
Ruling of His Honour Judge Slattery
12 April 2013
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION
EVIDENCE - AFFIDAVITS AND STATUTORY DECLARATIONS - AFFIDAVITS - USE OF AFFIDAVITS - CROSS-EXAMINATION OF DEPONENT
Interlocutory application by the plaintiff against the first defendant for production of documents in respect of which a claim for privilege has been made. The plaintiff alleges a breach of duty against the first defendant and others for alleged deficiencies in the antenatal care provided to him and the care provided to him at the time of his birth and for damages for the physical injuries alleged to have been suffered by him consequent upon those breaches of duty.
Three categories of documents were sought to be produced for inspection: contemporaneous notes made by two midwives following the birth (the midwives’ documents); records created by and for the first defendant’s Director of Clinical Nursing following notification to her of the circumstances of the birth (the Imgraben documents); a draft of a statement prepared by a solicitor as a summary of the solicitor’s notes of telephone conversations between the first defendant solicitors and an expert in the period between 2007-2009 but not seen, authorised or signed by the expert (the Taylor document). The first defendant disclosed and produced these solicitors notes under Rule 160(5)(c). The expert produced a report in July 2012.
Assessment of the dominant purpose of the production on the midwives’ documents and the Imgraben documents.
Whether the draft statement prepared by the solicitor was a report for the District Court Rule 4 and Rule 160(1) or whether the draft statement was required to be produced under Rule 160(5)(c) District Court Rules.
The plaintiff applied for permission to cross-examine the deponents of the affidavits filed on behalf of the first defendant in the application.
Whether a reference in an affidavit to mandatory reporting criteria (in a policy of insurance) entitles the plaintiff to require production of the document alleged to be referred to by the use of that expression under Rule 61.
Held: the first defendant is required to produce the midwives’ documents for inspection. The first defendant was not required to produce the Imgraben documents for inspection. The first defendant was not required to produce the Taylor documents for inspection. The first defendant is not required to produce to the plaintiff any documents under Rule 61. The application by the plaintiff for cross-examination of the deponents of affidavits filed on behalf of the first defendant is refused: no real or practical utility in allowing such cross-examination.
Corporations Act 2001 (Cth) s1335; District Court Civil Rules 2006 Rule 4; Rule 61; Rule 160; Rule 165, referred to.
Australian Competition and Consumer Commission v Prysmian Cavie E Systemi Energia S.R.L (No.2) [2012] FCA 44 ; Grant v Downs (1976) 135 CLR 674 ; Lilypond Constructions Pty Ltd v Barrie Kenneth Homann and Ors. [2005] QSC 266; Kentish Council v Bellenjuc Pty Ltd [2011] TASSC 58 ; ML Ubase Holdings Co Ltd v Trigem Computer Inc [2007] NSWSC 859 ; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; Mundraby v Commonwealth; Lewis v Commonwealth [2001] FCA 884, applied.
Harris Scarfe Limited (receivers and managers appointed) (in liq.) & Ors. v Ernst and Young & Ors. (No.6) [2006] SASC 148 ; Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2005] 1 Qd R 37 ; Interchase Corporation Limited (in liq.) v Grosvenor Hill (Qld) Pty Ltd (No.1) [1999] 1 Qd R 141 , discussed.
HM Talacko, A Bennett, M Talacko, R Talacko and MH Talacko v JM Talacko [2009] VSC 444 ; Kenneally v Pouras (2003) 87 SASR 346 , considered.
PRICE v CALVARY HEALTHCARE ADELAIDE INCORPORATED AND ANOR
[2013] SADC 46The application before the court
This is an application by the plaintiff for the first defendant to produce a number of documents to the plaintiff for inspection. The first defendant contends that the documents are privileged and that it is not required (and should not be required) to produce those documents.
The plaintiff sought the following formal orders in its application:-
“1. That the First Defendant provide documents for inspection and provide copies of the documents to the Plaintiff’s solicitors namely:
a) Documents numbered 8 and 12 in the schedule provided by the First Defendants solicitors in a letter dated 26 September 2012.
b) Documents numbered 1, 2 to 7 and document numbered 11 in the schedule provided by the First Defendants solicitors in a letter dated 26 September 2012.
c) Document numbered 22 in the schedule provided by the First Defendants solicitors in a letter dated 26 September 2012.
2. That the First defendant provide production of the draft statement of Professor Terry Inder prepared in or about December 2009, by Minter Ellison.
3. That the costs of this application be the Plaintiffs costs.
4. Such further or other orders as this Honourable Court deems fit.
5. That this application be heard before His Honour Mr Justice Slattery on 8 March 2012 at 10:00am.”
The plaintiff no longer pursues discovery and production of documents 3, 4, 5, 6, 11 and 22 in the list of documents sought in the Orders.
The plaintiff makes a second application to cross examine the following deponents who have sworn affidavits that have been filed in this matter: Susan Jean Imgraben, Carolyn Alana Hughes and Jane Elizabeth Warland.
The relevant factual background
Max Saul Price was born by vaginal delivery at Calvary Hospital, Strangways Terrace North Adelaide at 4:55am on the 15th of July 2004. The period of gestation appears to have exceeded 41 weeks because the estimated date of confinement was 5 July 2004. His mother Betty Jean Price was at the time 36 years of age and this was her first and only pregnancy, achieved through IVF treatment involving a frozen embryo.
Dr Julie Grant was the specialist obstetrician and gynaecologist who had treated Mrs Price until 3 July 2004 when her primary care was transferred to another specialist, Dr Karen Chandler. Arrangements were made for Dr Chandler to take over the specialist care of Mrs Price in respect of the birth of Max Price.
The statement of claim in this action sets out in detail the antenatal events leading to Mrs Price presenting at Calvary Hospital at a little after midnight on 15 July 2004 at which time difficulties were encountered by her in obtaining admission. At the time of admission, Mrs Price was in spontaneous labour. There had been earlier contact with the hospital about the fact that Mrs Price was having regular contractions. She was encouraged to attend the hospital at around midnight based on the information exchanged in that telephone contact with the hospital.
At the time of his birth, Max Price was in a very poor condition. The result of his Apgar test at one minute was less than 1; he was very critically ill, required resuscitation and was soon transferred to the intensive care until at the Women’s and Children’s Hospital where he received further treatment.
This claim concerns allegations of breach of duty against the hospital as the first defendant and Dr Chandler as the second defendant concerning alleged deficiencies in the antenatal care afforded to Mrs Price, failures alleged to have occurred during the birthing process and for damages in consequence of the physical injury alleged to have been suffered by the plaintiff consequent upon those breaches of duty as alleged. The first defendant has joined issue with the whole of the plaintiff’s claim and causation is specifically put in issue in its defence.
Dr Chandler denies any breach of duty and asserts that the antenatal care and the care at delivery were carried out in accordance with accepted and reasonable standards of practicing medical specialists in her field. Causation is specifically put in issue by Dr Chandler in her defence.
This application concerns a request for discovery of several categories of documents and the identification of these documents may be distinguished by the author of them and the time periods in which they came into existence.
The first category of documents consists of 2 documents both created by midwives who attended at the birth of Max Saul Price (Max) on the 15th of July 2004. I will call these the “midwives documents” and will identify them according to the midwife who created them.
The second category of documents relates to materials prepared by and for the then Director of Clinical Services at the defendant hospital, Susan Jean Imgraben. I will call these documents the “Imgraben documents”. There is one addition to this second category of documents namely a request for what is alleged to be a document referred to in paragraph 7 of the affidavit of Ms Imgraben’s sworn 13 February 2013 (FDN22). That application is made under Rule 61 of the District Court Rules. The content of that rule is as follows:-
“61—Copies of documents to be provided
(1) If—
(a)a party files in the Court a document that refers to some other document; and
(b)the party is in possession of the original or a copy of the document referred to,
the party must, at the request of another party, provide the other party with a copy of the document.
(2) A party who files a secondary originating process introducing a new party to the action must, at the request of the new party, provide the new party with a copy of all documents filed in the action before that party was served with the originating process.
(3) A party who files a document in the Court must, at the request of another party and payment of the appropriate fee, provide the other party with a number of photocopies of the document (not exceeding 10) requested by the other party.”
I will deal with that matter separately later.
The third category of documents is a form of a statement drawn by Ms Megan Anne Taylor, a solicitor then but no longer in the employ of Minter Ellison, the solicitors for the first defendant. The document is described by Ms Taylor in her affidavit sworn 13 February 2013 (FDN20) as follows:-
“3. During the period from 2006 to 2009 I had a number of telephone conferences with a paediatric expert Professor Terrie Inder. I took comprehensive and detailed handwritten notes during each of these telephone conferences and have subsequently provided typed transcripts of my notes to Minter Ellison. The last of these conferences was on 12 November 2009.
4. At some time after the last teleconference on 12 November 2009 I prepared a draft statement in the name of Professor Inder. As far as I recall, this was my attempt to convert what Professor Inder had said into the form of a statement and which I thought depicted her evidence but which for the reasons set out below was never put to her nor verified by her. My purpose in preparing this document was to set out a statement of Professor Inder’s evidence as I inferred it to be. It was my attempt to aggregate, assemble and interpret the comments of Professor Inder as set out my file notes of my conversations with her. In some parts of the draft statement I raised matters which were left for further discussion with Professor Inder.
5. I did not have any further telephone conversations or correspondence with Dr Inder specifically to discuss the substance of the draft statement apart from an email on 17 December 2009 to request a copy of her CV to include in the draft statement.
6. there are no other relevant conversations which I had had with Professor Inder nor any direct statements by Dr Inder that have been omitted from the file notes referred to in paragraph 2 above. In the conversations that I had with Professor Inder, I noted all of these matters discussed in the most comprehensive manner that I could.
7. Subsequent to preparing the draft statement I did not, at any time, forward the said draft statement to Professor Inder for her consideration.”
I refer to the expression “comprehensive and detailed handwritten notes” in paragraph 3 of Ms Taylor’s affidavit. Although I will deal with this matter later in some detail, objectively it could only be said that the person who created the notes would view them as comprehensive and detailed. A detached objective viewing of those records discloses pithy entries that are not really comprehensible absent some assistance from Ms Taylor. These comments cannot be understood to be a criticism of Ms Taylor rather, they reflect the usual reality of a solicitor’s note taking practices.
Ms Taylor has informed the Court that she prepared the second document from her notes with a purpose of setting out a draft statement of Professor Inder, an expert to be called by the defendant. This document was produced in late 2009 and Professor Inder’s report was delivered in July 2012.
The affidavit material
The parties have each read a number of affidavits in support of their respective cases. The plaintiff reads the affidavits of Esther Huxtable sworn 30th of January 2013 (FDN16) and the second affidavit of Esther Huxtable sworn 7th of March 2013 (FDN26).
The defendants read the following affidavits: the affidavit of Jane Elizabeth Warland sworn 14 February 2013 (FDN25); affidavit of Carolyn Alana Hughes sworn 14 February 2013 (FDN24); affidavit of Megan Anne Taylor sworn 13 February 2013 (FDN20); affidavit of Susan Jean Imgraben sworn 13 February 2013 (FDN22) and two affidavits of Christopher John Sweet, solicitor sworn 13 February and 14 February 2013 respectively (FDN21 and FDN23).
The issues for resolution in this matter derive largely from what is disclosed in the responses of the defendant to the requests of the plaintiff that are reflected in the affidavits of the deponents filed on behalf of the defendants. Happily, the exchange between solicitors have better clarified and narrowed the issues in dispute in this matter.
In order for me to properly explain the decision that I have reached in this matter, it is first necessary to briefly recite the effect of the affidavit material filed on behalf of the defendant although I will not repeat the content of the Taylor affidavit. This is important in a number of respects including in respect of the plaintiff’s application to cross examine the deponents of the affidavits filed for the defendants.
The midwives documents
The defendant filed affidavits of Carolyn Alana Hughes, a midwife employed by the hospital and who was a midwife involved in the birth of Max. In her affidavit sworn 14 February 2013 (FDN24) Ms Hughes informs the Court that she recalls, having been a midwife involved in the birth of Max and that following the delivery she thought that she should handwrite an account of her involvement so that it was clear in her mind in the event of some later litigation. She prepared typed-written notes later that day. From those notes she prepared a typed statement and she has retained both. She also informed the Court that her training as a midwife dictated that if there was an “unexpected” outcome from the birth (the Court was not informed what, in the birthing process, an “unexpected outcome” may constitute) and if she thought that the events might result in a claim then she should write a statement of what had occurred.
Jane Elizabeth Warland is also a midwife employed by the hospital and, according to her affidavit, she was involved in the birthing process of Max. However her precise involvement is not apparent because Ms Warland informs the Court that she cannot recall the exact details apart from the fact that Max was born in a poor condition and that his parents were questioning why.
Ms Warland informs the Court that apart from recalling that Max was born in a poor condition, she was aware that his parents were unhappy with the condition in which he was born and were questioning why. I have already described the condition of Max at birth in some detail. Parents’ reactions of unhappiness (and distress and other extreme emotions) are to be expected.
Ms Warland informs the Court that at the time of the birth she thought that Max’s parents might bring litigation arising from the mother’s labour and Max’s birth and by dint of her midwifery training, she thought it prudent to write an aide memoire of the events in order that she could recall them at a later time in the event of litigation.
It is significant that because of their position in the Hospital, neither Ms Warland nor Ms Hughes were then in a position to actually anticipate litigation. Their position was that as a matter of prudence, they should record what had occurred in the event that this record would be later required to be used to refresh their memories of the events. There was no certainty or particular level of possibility that the records would be required but rather as a matter of prudence they should be produced.
The Imgraben documents
Ms Imgraben was at the relevant time the Director of Clinical Services at the hospital. Ms Imgraben has sworn an affidavit of 13 February 2013 (FDN22) and that affidavit has been read in evidence in this application.
In 2004, part of Ms Imgraben’s responsibilities included responsibility for identifying, analysing and reporting risks and reporting all potential claims to the hospital’s insurers and instructing and liaising with the hospital’s legal advisers.
In her affidavit, Ms Imgraben informs the Court that she has no recollection of the birth but on the day of the birth she was contacted by the Clinical Manager, Maternity (Ms Kleinig) about the birth. Upon being notified by the Clinical Manager, Maternity, Ms Imgraben prepared a first notification form to be forwarded to the insurers and insurance broker because she thought that Max’s birth could give rise to legal claims against the hospital. She says that it was her experience as Clinical Director that an outcome such as that experienced by Max at birth had a high likelihood of becoming litigious and therefore posed a high risk of financial exposure to the hospital and to the insurers. She also says (paragraph 7) that the circumstances of Max’s birth also met mandatory reporting criteria under our insurance policy. It is this assertion which is the subject of the further claim under Rule 61 made by the plaintiff.
Consistent with that version of facts, very soon after the date of the birth and soon after the notification to the insurers, contact occurred between the hospital (Ms Imgraben) and the insurers appointed solicitors who would act on behalf of the hospital. Ms Imgraben thinks that this occurred sometime prior to 1 September 2004 and contact was made with the solicitors with the purpose of obtaining legal advice about the circumstances of Max’s birth and potential litigation. On balance, I am of the view that Ms Imgraben is correct that contact with solicitors occurred prior to 1 September 2004. As will become evident, the solicitors were in a position to advise the Hospital prior to a conversation between Ms Imgraben and Max’s parents that occurred on 2 September 2004.
Ms Imgraben also requested and received a summary from Ms Kleinig, the Clinical Manager, Maternity of information about the birth. The summary and production of it is sought by the plaintiff and is document 7. This request for and production of that document occurred in the context of the notification to insurers and the giving of instructions to solicitors concerning the potential for a claim that had been identified and notified by Ms Imgraben on behalf of the hospital.
A second issue arises in relation to the content of Ms Imgraben’s affidavit because she deposes that during late August she had contact from Max’s parents under the terms of the hospital’s policy. The parents were seeking information and two meetings occurred. Arrangements to meet were made in the conversations of 2 September 2004 and there had been some lead up contact prior to the conversation. The meeting with Mr and Mrs Price occurred on 15 September and Ms Imgraben later made a very detailed record of the conversations at that meeting.
Following the request for a meeting from Mr and Mrs Price, Ms Imgraben sought advice from solicitors prior to having any meeting. Mr Mitchell from the firm Minter Ellison Lawyers provided the advice sought by Ms Imgraben concerning that meeting.
The effect of Ms Imgraben’s evidence is that she was seeking legal advice about the matters to be discussed at the meeting with Mr and Mrs Price.
Following that meeting with Mr and Mrs Price, Ms Imgraben prepared a typed note dated 17 September 2004 so that she could have a record of matters discussed to be put to solicitors for their advice to the hospital and to the insurer. Those documents were emailed to the solicitor on 22 September 2004 and is now identified as document 8. Following that email, there is then considerable communication between Ms Imgraben and the Hospital’s solicitors between 22 September and 14 October 2004. At that time, the solicitors commenced interviewing midwives and other staff involved in the birth.
Another meeting between Ms Imgraben and Mr and Mrs Price was arranged to occur on 14 October 2004 and, consistent with her earlier approach, Ms Imgraben sought advice from solicitors about how she should conduct the meeting. Ms Imgraben expected to report to solicitors upon the content of the meeting.
The meeting occurred on 14 October 2004; following the meeting very detailed notes were again prepared by Ms Imgraben and were then sent by her to the solicitors for the purpose of those solicitors providing advice to the hospital and its insurers on the matters that were discussed in the meeting between Ms Imgraben and Mr and Mrs Price. The notes delivered to the solicitor are document 12.
Ms Imgraben informed the Court that the documents that she did prepare were quite detailed and formal documents. They are to be differentiated from general notes which she otherwise may have prepared because, in the circumstances, the documents were for the purposes of recording information for communication to solicitors and for the purposes of obtaining legal advice. They were detailed and so were much less perfunctory than the notes that she would usually make.
Associated with that activity, the solicitors for the hospital continued to interview staff and provided advice to the hospital following the meeting of 14 October 2004.
In my view, the documents under consideration in respect of Ms Imgraben, fall into a different category to those documents which I have referred to as the Midwives Documents.
In preparing her notes of the day, Ms Hughes was largely following her training following what is called an “unexpected outcome” from a birth. From my reading of Ms Hughes’ affidavit, she can put her position no higher than a mere possibility; i.e. “…that the events might result in a claim…”
Similarly and notwithstanding differences of emphasis and context, Ms Warland also responded to her training to write something down about the events so that if, at a later time, some form of litigation occurred, she would be able to recall events. She said that it was apparent from the time of the birth that Max’s parents were unhappy with his condition and were asking why. As I have said, it is impossible to imagine the distress felt by parents of a child born with no responses, giving an Apgars test result of 1 or less at one minute and requiring resuscitation because of the infant’s failure to breathe and to respond normally post delivery. It could be expected that any parent in that situation would be overwhelmed by a panoply of emotions, fears and questions about their child. Mr and Mrs Price were in that position.
The importance of the context of Ms Warland’s affidavit is that the question of proceedings was a matter for others and on a fair reading of her affidavit, such proceedings were no more than a mere possibility.
In contradistinction, Ms Imgraben was in a different position. The facts and circumstances concerning the birth of Max was reported to Ms Imgraben by the hospital’s Clinical Manager, Maternity Ms Kleinig. From that time Ms Imgraben followed the usual process in respect of a potential claim upon the Hospital. This included the notification to insurers, liaison with solicitors and commencement of the process to ensure that the Hospital was properly placed to react to any request for information or instructions from solicitors and had insurance coverage in respect of the circumstances of that birth.
Although Mr Frayne SC is correct to say that the proceedings herein were not raised by a letter of demand until 2 years later, that does not mean that the party that perceives it is under threat would not set about to do everything to protect its position once it (accurately here as it turns out) anticipates that legal issues arise and that legal advice is required. The two things are not mutually exclusive: the Hospital’s perception of the risk of its position and its need for advice was not entirely or at all beholden to the initiation of legal claims (by a letter in 2006) by the plaintiff.
Ms Imgraben set about to gather all of the information that she could about the birth because, as she reasonably perceived the matter, there was a high likelihood of litigation and thus the possibility of a high risk of financial exposure to the hospital and to its insurers. That was her role and responsibility: she was employed to make those types of decisions and judgments. And thus the issue for consideration here is the question of solicitor and own client privilege in respect of the dominant purpose of obtaining legal advice.
The disclosure of the fact that the hospital is insured against the nature of such a claim or that it has notified its insurers of that possibility is not an epiphany. The important issue is that Ms Imgraben was, by the convergence of the relevant facts and circumstances at that time, in a position where she notified the hospital’s insurers of a potential claim connected with the birth of Max. In the context of their instructing solicitors she requested the formal report from Ms Kleinig called the Risk Management Report that was sent to Minter Ellison, being document 7.
Also associated with that report, was the usual retainer of the insured/insurer’s solicitors (in this case Minter Ellison Lawyers). In all probability from a date prior to but certainly no later than 1 September 2004, Minter Ellison were retained to act in the matter, provided advice to the hospital from time to time as required and continued to act for the hospital in this matter.
Ms Imgraben was also involved in a series of meetings with Max’s parents. Disclosed during argument was a copy of the hospital’s policy concerning patient rights (it is exhibit EH5 to the first Huxtable affidavit of 30 January 2013). I refer particularly to pages 10 and 11 in the exhibit book.
The charter of rights and responsibilities relevantly read as follows:-
“You have the right to comment about your health care.
If you have a comment or complaint about our service:
· Talk to the person in charge or any health worker at the time of the problem
· You can write, phone or see the person in charge at any time during your care or afterwards
· If you are not satisfied with the results of your complaint you can contact the Chief Executive Officer
· If you have not been able to resolve the problem you can contact the appropriate State, Territory or Federal agencies such as Health Care Complaints Unit, Ombudsman, State Health Department
Be assured that:
· (The hospital) wants to resolve your concerns to your satisfaction
· You can expect any complaint to be dealt with quickly and fairly
· Your complaint will not adversely affect the service you receive
· Your complaint will be handled with complete confidentiality.
The second page of that document sets out a list of rights with an explanation in relation to those rights. The relevant passages read as follows:-
“Access:
I have a right to health care; safety: I have a right to receive safe and high quality care; respect: I have a right to be shown respect, dignity and consideration; communication: I have a right to be informed about services, treatment, options and costs in a clear and open way; participation: I have a right to be included in decisions and choices about my care; privacy: I have a right to privacy and confidentiality of my personal information; comment: I have a right to comment on my care and to have my concerns addressed.”
Mr and Mrs Price sought a meeting to discuss the matter of Max’s birth under that policy and charter. This was in the period of two months that followed Max’s birth. The two meetings that I have already described then followed.
In my view, and for the same reasons, there is no mutuality of exclusion or inconsistency between the fact that the Prices may seek information from the hospital under the policy and charter on the one hand and the reasonable subjective expectation of the hospital of the potential for a claim in respect of the birth of Max on the other. The two things can coexist and it is not objectively likely that the Hospital would in such circumstances seek from any patient in the position of Mr and Mrs Price some definitive statement about whether they have an intention to sue the Hospital in respect of the birth. The process was different but it would not change the Hospital’s own perceptions of the exposure of its position: these are day to day matters for such an institution.
There is also nothing to be gained from attempting to enquire into the labile emotions that Mr and Mrs Price may have experienced at that time. Objectively viewed, nothing that then could have been said or done by or on behalf of the hospital could actually or theoretically have changed Max’s position and, so, the position of his parents in relation to their unhappiness about his health at birth.
That was the position that confronted Ms Imgraben and she was required to make her own subjective judgment about that situation. Her judgment and decision was, having already notified insurers and after solicitors had been retained and had given some advice, to then involve those same solicitors in the process of the enquiries of Mr and Mrs Price after obtaining legal advice over several weeks.
In light of the circumstances as they are known, that is both unremarkable and on the materials available, to be expected. There is only one exceptional matter that does not necessarily arise in that context. At paragraph 10 of her affidavit, Mr Imgraben informs the Court as follow:-
“10. As it was my intention to seek legal advice from the hospital solicitors in relation to the circumstances of Max’s birth and the request by Mr and Mrs Price for information, I requested a summary from the Clinical Manager, Maternity (CMM) to provide the hospital’s solicitors with information about the birth. The document I received from the Clinical Manager, Maternity (CMM) in response to that request is identified as document number 7 in the list exhibited to the affidavit of Esther Huxtable sworn 30 January 2013…”
Bearing in mind the need for consistency of approach, a question for determination arises about whether this summary may fall into the same category of documents as the midwives documents.
In my view, on the information available to me in the papers, that document appears to have been produced for the purposes of information gathering by Ms Imgraben after notification to insurers, instructing solicitors and then preparatory to her meeting with Mr and Mrs Price.
An issue is whether the document falls into the same category or documents as the midwives documents or whether it stands apart from them.
In my view, the document stands in a different category because of the subjective considerations of Ms Imgraben having regard to what she knew at the relevant time and that, judged objectively, the dominant purpose of gathering the document was to assist Ms Imgraben to properly instruct solicitors to give their advice about what was then occurring.
Following the gathering of that information, there was communication with solicitors who, in a solicitor-client relationship, were advising a hospital about the approaches of Mr and Mrs Price. I have dealt with this issue earlier in these reasons.
In my view, arguably from no later than late August 2004 but certainly from 1 September 2004, a solicitor and client relationship existed between the hospital and Minter Ellison Lawyers concerning the events of the birth of Max because, as a result of choice and prudence, the hospital sought and took advice from solicitors on those issues at that time.
Associated with that process was the accumulation of further information, including from the Clinical Manager, Maternity as I have already described in these reasons. To my mind, the gathering of such information was all part and parcel of the process of properly instructing solicitors and for those solicitors, as well, to then be in a position (properly instructed) to provide appropriate professional advice to their client.
From the time in September 2004, the hospital took the view that, consistent with its contractual obligations under its insurance policy and as a matter of ordinary prudence, it would involve the solicitors for advice in dealing with the approaches of Mr and Mrs Price. That is the actual situation and to my mind is a quite reasonable stance to take in light of the events as they were playing out.
In the course of argument, Mr Frayne SC tendered Exhibit P1. It consists of documents 3, 4, 5, 6 and 11 for a number of purposes including in respect of the application to cross examine the deponents of the affidavits. These documents had been discovered and provided to the plaintiff in circumstances where previously a claim for privilege had been maintained in relation to them.
I have closely read each of these documents having regard to the submissions made by Mr Frayne SC for the plaintiff. Having taken all of those submissions into account, my view in relation to the matter concerning the status of the Imgraben documents has not changed. It is correct, as Mr Frayne SC submitted, that a number of issues arise on the face of the documents but in my view, those matters, as identified, do not contradict the position of the defendant hospital in relation to the fact of the retainer of the solicitors, the purposes of that retainer, its continuity and, in the mind of the hospital, its necessity having regard to the matters communicated to the hospital by Mr and Mrs Price.
The Taylor documents
Megan Anne Taylor was employed as a solicitor of Minter Ellison Lawyers from 1 November 2004 to 13 April 2007 and between 28 July 2008 and 28 January 2010. She was a solicitor who had the conduct of the matter for the first defendant under the supervision of senior practitioners at the firm of solicitors. Ms Taylor informs the Court in her affidavit of 13 February 2013 (FDN20) that she was involved with the briefing of an expert to be called on behalf of the defendant, Professor Terrie Inder. Professor Inder is a resident of the United States and has specialist qualifications. She has produced an expert’s report which has been delivered to the plaintiff.
The issue for consideration here is a draft statement of Professor Inder prepared by Ms Taylor from the notes taken by Ms Taylor during her telephone conversations with Professor Inder, typed transcripts of which have been provided in discovery. Although a draft statement was then prepared by Ms Taylor following a series of conversations with Professor Inder, it was not ever authorised, seen by or signed by Professor Inder. Ms Taylor deposes to the facts of the situation in paragraphs 3 to 7 of her affidavit which I have already set out earlier in these reasons. This draft statement was prepapred by Ms Taylor in late 2009, some 8-10 weeks before she left her employment with Minter Ellison Lawyers.
Ms Taylor has described her notes as “…comprehensive and detailed handwritten notes…” Note taking is not an “exact science”. In many cases to properly understand notes, it is necessary for the reader to be able to understand the importance of a word in context and in association with other words and phrases. In some contexts a single word may have more meaning and significance to the note taken than a phrase of many words. Sometimes the opposite is the case.
In the notes taken in their conversation between Professor Inder and the solicitors including Ms Taylor of, for example 4 November 2008 there is a series of words or combination of words some or all of which may be connected and if they are connected, they may be connected in ways that are obvious only to the person who took the notes. I take as the following combination as merely one example of the point that I make. At the end of the notes the following entries occur:-
“Heart is not the brain
Seven days
Small baby 25 centile weight
75th centile length
Wallerian degeneration on scan
40 min MT”
At another place within the notes, the following entries are to be identified:-
“Lip sm midday
Less than 12 midnight tachy
Early insult ongoing
Hammersmith article
Haem
C. prolapsed
Same pattern of disability”
I accept that the notes taken by Ms Taylor at the time would have been understood by her to have been comprehensive and detailed handwritten notes as she has described in her affidavit. What is not apparent to me (even though from personal experience, I can make an educated guess at the meaning of some of the entries), is the full meaning of the entries when viewed separately and when viewed together with the other entries in the particular record. That is when the “detail” of the conversation would become apparent.
Therefore, the use by Ms Taylor of the description of “comprehensive and detailed handwritten notes” must be understood in the context of the person making the notes and that, consistent with the inexact science of note-taking, these notes will be used as a means by which the maker of the note will understand both their context, meaning and the information that, overall, is to be communicated by a reading of them.
To the ordinary casual observer, it is perhaps of no surprise that Ms Taylor prepared some form of statement for Professor Inder based upon her notes. In light of the fact that Ms Taylor very shortly left the employ of Minter Ellison Lawyers, Ms Taylor may well have prepared the statement with a view to informing anyone who succeeded her in the firm of solicitors and who would need to obtain some understanding of the notes which is not necessarily apparent from an ordinary reading of them. That is speculation and I have no evidence before me on that matter.
A preliminary issue: cross examination of deponents
On 1 March 2013 the solicitors for the plaintiff wrote to the defendants’ solicitor requesting Susan Jean Imgraben, Carolyn Alana Hughes and Jane Elizabeth Warland be present for cross-examination at the hearing on 8 March 2013. Minter Ellison responded on behalf of the defendants requesting the plaintiff to identify the grounds upon which the application for cross-examination was to be made and to outline the likely topics of cross-examination.
The basis for the application was under Rule 165 of the District Court Rules and the topics of the cross-examination identified was the alleged basis of the claim for alleged privilege.
Rule 165 reads as follows:-
“165—Power to require witness to appear for oral examination
(1) Subject to these rules, the Court may, on its own initiative or on application by a party, order a witness who has made an affidavit to attend for cross-examination on the affidavit.
(2) If a witness fails to comply with an order under subrule (1), the Court may (instead of, or as well as, exercising its other powers to deal with the failure) exclude the affidavit from evidence.
(3) If the witness is cross-examined, a re-examination may be conducted in the usual way.”
In HM Talacko, A Bennett, M Talacko, R Talacko and MH Talacko v JM Talacko [2009] VSC 444 Habersberger J in the Supreme Court of Victoria considered an application for cross-examination of a defendant in a significant interlocutory process in an action. The relevant proceeding involved a protracted and apparently bitter family dispute. The plaintiffs sought Orders from the Court preventing the defendant from leaving Victoria.
The defendant owned significant estates in Germany, Slovakia and the Czech Republic and the plaintiffs were attempting to preserve those estates to answer their claims against the plaintiff in long running proceedings in Victoria (the action number was 7393 of 1998).
The judgment of his Honour discloses that on several occasions, the defendant had failed to observe Court Orders associated with the proceedings and he had been found to be in contumelious breach of other separate but connected Orders made by other Judges of the Victorian Supreme Court.
Habersberger J allowed cross-examination of the defendant on his affidavit. In light of the history of the conduct of the defendant and his apparently insolent attitude towards the Court and its Orders, it is perhaps not surprising that cross-examination of the affidavits of the defendant was allowed.
In considering the application, Habersberger J, in paragraphs [13] and [16] of his decision relevantly held as follows:-
“[13] …Mr Williams of counsel, who appeared for the defendant, submitted that cross-examination was not normally allowed on interlocutory applications and that no reason had been given why it would serve any useful purpose. He referred me to what was said by Nicholson J in Scanlon v American Cigarette Company (Overseas) Pty Ltd (No. 1):
There is clearly a discretion in the Court to permit cross-examination on affidavits or otherwise: see LaTrinidad v Browne [1887] WN 208; R v Stokesley Justices; Ex parte Bartrain [1956] 1 All ER 563. In interlocutory matters which, as I have said, this one is, such a discretion is normally exercised somewhat sparingly.[1]
[1] (1987) VR 261, 272.
This statement has been cited with approval by Branson J in Friends of Hinchinbrook Society Inc v Minister for Environment (No. 1)[2] and by Kenny J in Wu v Avin Operators Pty Ltd (No. 3).[3] Mr Williams further submitted that the plaintiffs were seeking to gain an unfair advantage in the imminent trial of this proceeding by having a practice run at cross-examining the defendant.
[2] (1996) 69 FCR 1, 17.
[3] [2006] FCA 1321, [18].
[14]
[15] I indicated at the end of the argument that I would allow cross-examination on all but two topics and that I would give fuller reasons for this decision in this judgment. The critical factor, in my opinion, for allowing cross-examination was that this was an unusual application and therefore that it was difficult to know at that early stage what issues would eventually be seen as relevant to the decision. It was important, therefore, to allow the parties a reasonable amount of latitude.
[16] Even accepting that the discretion to permit cross-examination in interlocutory applications is “normally exercised somewhat sparingly”, it seemed to me that this was an appropriate case to exercise my discretion in favour of allowing cross-examination given the nature of the application. Further, the pressure of other matters waiting to be heard, which was often present with interlocutory applications, was not a factor with this specially fixed hearing.”
This decision is an example of the exercise of an unfettered judicial discretion in a case where it may well have been axiomatic that an Order for cross examination would be made. I have used this case as an example because it neatly summarises the traditional approach of the Court in such situations. The usual position is that a Court is reluctant to allow cross examination for many separate or interrelated reasons that vary according to the case. That variation usually is reflected in the generality of language used by the Court when expressing a decision whether or not to allow cross examination.
To my mind, two matters arise for consideration. The first is that the Court does not and will not ever act to confine the breadth of its discretion because, in the end, so to do would fetter and so be an anathema to the existence of the discretion. There are no rules upon the exercise of this discretion and this is reflected in the general agreement in the decisions of a number of other Justices of the Federal Court with what was decided by Nicholson J in Scanlon.
The second is that Courts will often identify that despite the unfettered discretions that are available to it, there may be matters or considerations that may assist a Court in coming to its decision about how a particular discretion may be exercised. None of these considerations may be viewed as “rules”: they are considerations and according to the particular case, they may or may not be of any assistance.
A case in point is the exercise of the discretion under s1335 of the Corporations Act 2001 (Cth) and the question of whether or not to grant an Order for security for costs against a corporate plaintiff that is insolvent. The proof of the insolvency of the corporate plaintiff only enlivens the unfettered discretion.
In that context only, on the question of what may be relevant considerations, merely to state that the discretion is normally exercised “somewhat sparingly” is of negligible assistance. Cross-examination will often lead to trials within trials; it will often open up other areas or avenues of enquiry that may consume time and effort better spent by focusing on the issues at hand; often it will be difficult to control the cross-examination because, once commenced, it may range across unlimited topics, for different purposes and for other reasons including credit generally.
These are only a few of the relevant issues that come readily to mind. In that context and background, I think that there are a number of considerations that a Judge or Master of the Court may address, depending on the case, when assessing whether to allow cross-examination of affidavits in an interlocutory matter.
To my mind, the considerations that a Judge or Master may address include whether there is disclosed a real utility or there is a practical utility in the cross-examination that is being sought.
A real utility may include, for example, that there is a substantial identifiable contradiction disclosed on the face of the affidavit material on a matter that is at the very heart of the questions for decision in the application and that cannot be resolved on the papers. Absent a resolution of that matter, it may be very difficult for a Court to decide where the preponderance of weight lay because of the affidavit material does not sufficiently elucidate the issues that are ordinarily addressed in the usual judicial method.[4]
[4] An example where this consideration would not assist is where the affidavit material is properly and carefully drafted so that all relevant information is before the Court and the Court can, by the application of the judicial method including plain common sense be sufficiently satisfied of the correct iteration of events, circumstances or issues (emphasis). In such a case, cross-examination would not assist.
A consideration of a practical utility in allowing cross-examination may include where the affidavit material (deliberately or otherwise) is so incompletely or incompetently drawn that matters upon which a Court must be satisfied (from all parties’ point of view) have not been put before the Court and therefore any argument upon them would become sterile.
A case in point is provided in the Talacko decision. The Court was considering an unusual application because of its breadth, complexity and the importance of the consequences of an Order of the Court that the defendant not leave the State of Victoria, not attend any point of international departure and not apply for any other passport. In that case, Habersberger J held that it was difficult to know at an early stage of the application what: “...issues would eventually be seen as relevant to the decision…” The defendant was (deliberately or otherwise) not completely forthcoming in the information placed before the Court. The defendant had done little to inspire the confidence of the Court. In those circumstances, a Court will allow latitude by allowing cross examination but the extent of that latitude is a matter for consideration by the trial Judge.
I emphasise that what I have described are merely two of many relevant considerations that may have more or less importance depending on the facts of the matter. Nothing that I say here does or could be assumed to fetter the Courts unfettered jurisdiction. It is also apparent that according to the circumstances of the case, a consideration of what might be a real or practical utility will be indistinguishable and would not lend itself to separate assessment. The two considerations may well coalesce but that result is entirely consistent with those matters only being considerations.
After hearing argument from counsel, I ruled that I would not allow cross-examination of the deponents of the affidavits. I formed the view that keeping clearly in mind that the favourable exercise of the permission to cross-examination discretion would be used sparingly, I could see no real or practical utility in cross-examination on the affidavits before me. That affidavit material filed by both parties was carefully and informatively drawn with a focus clearly upon the relevant well settled principles. I therefore could identify no real or practical utility in allowing cross-examination, especially bearing in mind the strict time pressures upon me on the day of argument and also due to the imminent trial of this matter before Judge Lovell.
On my review of the material filed in Court, I was satisfied that I would not be assisted by cross-examination of the deponents to the affidavits filed on behalf of the defendants.
The relevant applicable principles
I turn then to consider the relevant applicable principles and authorities in relation to this matter. In my view these principles are so well settled that they only need to be stated and long standing authorities do not need to be cited in support.
It is not in contest that, speaking generally, privileged documents fall into two categories: those that relate to communications made in documents prepared for the dominant purpose of a lawyer providing legal advice or legal services (assessment as at the date of the creation of the documents) or alternatively for the dominant purposes of the provision of legal services that include representation in proceedings in a Court that at the time of its production is in reasonable prospect (assessment as at the date of creation of the document).
In respect of the documents that fall under the later category there must be circumstances existing which objectively assessed indicate that litigation is a real prospect although a party’s subjective expectations are matters that are to be considered.
The party claiming the privilege must satisfy the Court of the existence of the privilege attaching to the document, usually as a matter of fact. Once sufficient doubt has been cast upon a claim for privilege, then the party claiming the privilege bears the onus to satisfy the Court that the claim for privilege should be maintained. The status of the document is to be tested according to the factual circumstances surrounding its production; the question is then to decide the dominant purpose of its production.
In respect of the claim for privilege over the documents connected with the litigation, an issue in this case is the question of the reasonable anticipation or contemplation of litigation, objectively assessed. The position now appears to be well settled and summarised in the judgment of Lander J in his Honour’s decision in Australian Competition and Consumer Commission v Prysmian Cavie E Systemi Energia S.R.L (No.2) [2012] FCA 44 (Prysmian). The test to be applied is: is there a real prospect of litigation as distinct from a mere possibility although such mere possibility does not have to satisfy the burden of being more likely than not.
I will deal first with the draft statement of Professor Inder and with a number of arguments associated with this document in light of the other material that I have received.
The defendant contends, correctly, that absent any particular rules that abrogate the common law position, communications between a solicitor and an expert retained by that solicitor as the authorised agent of the client, are privileged.
District Court Rule 160, to the extent of its particular terms, abrogates the common law. That Rule reads as follow:-
“160—Pre-trial disclosure of expert reports
(1) A party must, before the relevant time limit—
(a)obtain all expert reports that the party intends to obtain for the purposes of the trial of the action; and
(b)serve on every other party to the action a copy of each expert report in the party's possession relevant to the subject matter of an action (whether the party intends to rely on it at the trial or not).
Exception—
This rule does not apply to reports obtained, or to be obtained from a shadow expert (see rule 161(1)).
(2) The relevant time limit is the end of a period of 60 days after the time limited for making an initial disclosure of documents.
(3) An expert report should—
(a) set out the expert's qualifications to make the report; and
(b) set out the facts and factual assumptions on which the report is based; and
(c) identify any documentary materials on which the report is based; and
(d)distinguish between objectively verifiable facts and matters of opinion that cannot be (or have not been) objectively verified; and
(e) comply with any requirements imposed by practice direction.
(4) However, if an expert has provided a previous expert report to a party, a report complies with subrule (3) if it refers to material contained in the previous report without repeating it.
(5) A party who has disclosed an expert report, and proposes to rely on evidence from the expert at the trial, must, at the request of another party, provide the party making the request with—
(a)a copy of documentary material (including material in the form of computer data) on which an expert has relied for making a report; and
(b)details of any fee or benefit the expert has received, or is or will become entitled to receive, for preparation of the report or giving evidence on behalf of the party; and
(c) details of any communications relevant to the preparation of the report—
(i) between the party, or any representative of the party, and the expert; and
(ii) between the expert and another expert.
(6) The Court may, on application by a party, relieve the party from an obligation to disclose an expert report or information relating to it under this rule.
(7) An application under subrule (6)—
(a)must be made before or within 7 days after the time for disclosure of the expert report; and
(b)must be accompanied by a copy of the relevant report enclosed in a sealed envelope (which is only to be opened at the direction of the Court); and
(c) may be made without notice to other parties to the action.”
That rule is to be read with Rule 4 that defines an expert report as:-
“A report in written or electronic form by a medical or other expert” (my emphasis)
The plaintiff’s first argument is that the statement document prepared by Ms Taylor is produced by the solicitor from the notes she made of her conversations with the expert and that such statement is an expert’s report or alternatively is a matter that comes within Rule 160(5)(c).
I will deal with the second argument first, but before doing so it behoves me to recall that Ms Taylor has informed the Court that in this document she “…attempted to aggregate, assemble and interpret the comments of Professor Inder and… (she) raised matters which we left for further discussion…”
The defendant’s argument on this topic is that the solicitor prepared notes following a number of detailed telephone conversations with Professor Inder who later prepared formal reports which have been served upon the plaintiffs. The defendant concedes that the notes were required to be discovered and produced under Rule 160(5)(c) in conformance with an obligation upon a party to divulge “details” of communications relevant to the preparation of the reports. The defendant confined its initial submissions to the question of whether the draft document prepared by the solicitors could constitute an expert’s report under Rule 4 of the Rules or alternatively whether the document fell within the scope of Rule 160(5)(c).
The primary submission of the first defendant was that the file note of the solicitor’s conversation with the expert does not constitute an expert report as defined because it is not made by the expert at all. At its highest, it is a transcription of what was said by the expert but it is not a report in written or electronic form for the purpose of Rule 4 because it is not a report by the expert (emphasis).
The secondary argument of the defendant is that the content of Rule 160(5)(c) has not been satisfied because that Rule does not require production of the relevant communication with the expert but rather details of any communications. Alternatively the defendant suggests that the Rule does not require production of a privileged file note and so does not in that peculiar situation abrogate the privilege attaching to the conversations reflected in the document.
There is some internal inconsistency in this submission because the file notes have been produced pursuant to Rule 160(5)(c). That Rule required production of details of communications between the representative of the party and the expert. That is, the defendant appears to have already accepted a broad meaning of the expression “details” in the Rule. The narrow definition of that word (on this argument) would encompass only the obligation to identify the fact of the communication having taken place. That is, the detail would be that the communication took place on particular dates and telephone conversations between particular people, one of whom would be the expert. The defendant has not put that (narrow) argument and relies upon its primary and secondary submission (in the alternative).
The defendant also submitted that this document could not be a report in any event because it is the solicitor’s attempt to interpret communication and is properly to be seen as a record of the solicitor’s views which would not fall within the purview of communications with the experts. The defendant has disclosed and delivered the expert’s reports of Professor Inder and I am told that the defendant intends to rely upon those reports to support their defences, the substance of which I have earlier described in these reasons.
The issue for my consideration is whether, in my view, the questions to be decided here arise on the twofold basis as was submitted to me in argument. I refer to and reiterate my earlier comments about the content and comprehensibility of the notes of Ms Taylor that have already been discovered.
The issue arising between the parties concerns whether the obligation to make discovery of these notes could only have arisen (as an exception to the common law rule) under the terms of Rule 160(1) - (4) because it is a report of an expert (cf definition of expert’s report: Rule 4) or under Rule 160(5)(c) because the notes provide details of communications between a representative of a party and the expert i.e. between Ms Taylor and Professor Inder (my emphasis).
No point was made by the defendant in argument to contradict the proposition that the provision of the typed notes of Ms Taylor occurred as part of the obligation to give details of conversations under District Court Rule 160(5)(c).
The philosophy of the Rules was explained by Gray J in Kenneally v Pouras (2003) 87 SASR 346, referred to with approval by Bleby J in Harris Scarfe Limited (receivers and managers appointed) (in liq.) & Ors. v Ernst and Young & Ors. (No.6) [2006] SASC 148. I refer to in particular to paragraph [19] – [21] et seq. of the judgment of Bleby J as follows:-
“The intent and purpose of the Rules
[19] The history of r 38.01 and judicial comments on the purpose of that Rule were referred to by Gray J in Kenneally v Pouras.[5] I will not repeat what is there set out. It is evident from that history, the content of r 38.01, the Practice Direction which accompanied it, the subsequent enactment of r 38.01A and Practice Direction 46A and their content that the Rule and Practice Directions have a number of purposes. One is to ensure full and effective disclosure of an expert’s opinion and of the material on which it is based well before trial. Another is to emphasise that experts are not engaged for the purpose of moulding their opinion to suit the needs of the client, but that they are there to assist the Court and to provide an independent opinion based solely on the proper exercise of their professional or other expertise. Another is to ensure that where an expert has changed or qualified his or her opinion, that change or qualification is made known to all interested parties. Yet another is to ensure transparency between experts and those instructing them so that where a client or their solicitors may have made some suggestion or questioned the opinion, resulting in some change or qualification, that change or qualification and the reason for it is revealed. Another purpose of the Rule was to effect a change of culture among some groups of experts and those instructing them who perceived the function of the expert to be to act solely in the interests of and for the benefit of the client in forming and moulding their opinion.
[20] It was for those reasons that, not only were experts then required to state the factual basis and assumptions on which their opinions were based, thereby reflecting their instructions, but that they and their instructors were thenceforth required to list and supply copies of all documents referred to or prepared by or at the direction of the expert in the course of preparing the report and to list conversations in which the expert had taken part with any party, with the legal representative of the party or with any other expert consulted. They were also required to disclose the topics discussed and to provide copies of notes of any such conversations. Among other things, the Rule was designed to expose the type of change to or formulation of an expert’s opinion exposed in the course of cross‑examination in Universal Music Australia Pty Ltd v Sharman License Holdings Ltd.[6]
[21] True it is that the expert is required to list in his or her report the factual findings and assumptions on which the opinion is based and to attach to their report or to summarise the instructions given, the relevant facts and assumptions, documents and other materials that the expert has considered. However, the Rule also requires that these and any other notes and documents reflected in them must be produced. The Rule and the Practice Direction and the transparency required by them do not rely solely on the integrity of the expert in stating or referring to those matters in the report or in an attachment.”[7]
[5] (2003) 87 SASR 346; [2003] SASC 394.
[6] (2005) 220 ALR 1 at 57.
[7] Although these comments are made in the context of the old Rules, they are apposite in this case.
In my view the decision of Bleby J in Harris Scarfe canvasses another issue that may be apposite in this case and in my view requires close scrutiny.
The focus of the Court’s decision in Harris Scarfe was whether material exchanged between experts, provided by an expert to a party or by a party to an expert was properly the subject of disclosure. The Court held that such exchanges, in the particular circumstances of that case, were required to be disclosed to the defendant by the plaintiff.
After discussing the intent and purpose of the Rules and their amendments, Bleby J discussed and adopted the method of reasoning of Douglas J in Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2005] 1 Qd R 373 in which his Honour distinguished the decision of the Court of Appeal of Queensland in Interchase Corporation Limited (in liq.) v Grosvenor Hill (Qld) Pty Ltd (No.1) [1999] 1 Qd R 141. The issue before Douglas J was a dispute over disclosure of draft reports of two experts whose final reports had been disclosed in accordance with the Queensland Rules. The issue for decision was whether the earlier draft reports should be disclosed. His Honour ordered disclosure of the reports. Douglas J held as follows:-
“In my view the answer to the question may be sought by asking whether a draft statement or report by an expert is nonetheless his statement or report even though it might not be his final view. If an expert has prepared a draft report it is still his report or statement, no doubt normally reflecting his state of mind at the time he wrote it. The fact that, after consultation with lawyers in an action, he may prepare a further report or amend the draft does not prevent the draft from meeting the description in the rules. Such a document seems to me to be different from the working papers and valuations of other properties referred to by Thomas J in Interchase. That was the approach adopted by Derrington J in Natwest Markets Australia Pty Ltd v Colliers Jardines (Qld) Pty Ltd (No 3141 of 1996; 22 April 1998, unreported).”
The situation that confronts the Court in this case is not to do with a report prepared by an expert but a document produced by a solicitor which records the topics of discussion had with the expert, the responses of the expert and some other matters. The final report of the expert Professor Inder was delivered in July 2012.
The mere fact that after these conversations Professor Inder prepared her final report does not mean that the document prepared by Taylor expresses her view because that ultimately is a matter for Professor Inder in her final report. On another view, it may be said that the document prepared by Taylor records some of the views of Professor Inder and in that sense it may be described as a draft of her report. According to Taylor’s affidavit, Professor Inder has informed the solicitors of her response to questions asked of her and the solicitor has apparently faithfully recorded what has been said by Professor Inder.
One question arises: why would that document, as a draft report be any less a report discoverable under the Rules. One answer is that the report is not prepared by Professor Inder but it is a collation prepared by the solicitor based upon the conversations between Professor Inder and the solicitors over a period of three years ending in November 2009. This was some three years of so before Professor Inder delivered her final expert opinion.
It may have been intended to be a working document for the expert going forward but that intention was never fulfilled. The position reached appears to be that there was to be a continuing connection between what was contained within the document prepared by the solicitor and the final report to be prepared by the expert because as the solicitor says in her affidavit, she had identified a number of questions that would need to be discussed with the expert in relation to the expert’s final report.
The position appears to be that the telephone record of the responses of Professor Inder to the question of solicitors are not generally or at all recognized as falling within details of communication that are generally recognized as being relevant to the preparation of the expert’s report. This raises the anterior question of the basis upon which the typed solicitors’ notes have been disclosed: see ML Ubase Holdings Co Ltd v Trigem Computer Inc [2007] NSWSC 859 at [23] et seq (especially at [29]); Kentish Council v Bellenjuc Pty Ltd [2011] TASSC 58 at [27] et seq (especially at [36]). In this case there is no evidence that the privileged information has been used as a basis or foundation of the opinion or that what is said in the solicitors notes has been incorporated by the expert so as to make it part of the issue.
Decision: The Taylor document
In my view, the document produced by Ms Taylor is not a “…report in written... form by a medical or other expert”. I am mindful of the submissions made by Mr Frayne SC of the extended meaning of the preposition “by”. Mr Frayne referred to me a definition from the Macquarie Dictionary at page 274 which include the following meanings:-
“8 Through evidence of authority of: by his own account;
12 Through the agency or ethicacy of: founded by Napoleon, done by force.”
These extended meanings do not, in this circumstance, assist with the determination that the document produced by Ms Taylor is a report by the expert. This is because the expert has not seen and authorised the document as her report.
Professor Inder has prepared a formal expert’s report. It could not be sensibly said that the document prepared by Ms Taylor was produced through the authority of Professor Inder or that it was produced by Professor Inder through the agency or efficacy of the solicitors. It is not a report as defined in Rule 4 of the District Court Rules.
In my opinion the expression “details” when used within the chapeau of Rule 160(5)(c) should be given its ordinary meaning and it should not be read down as proposed by the defendant in its alternative argument. Consistent with the philosophy (Kenneally; Harris Scarfe at [19] et seq.) and the context of the Rules (c.f. District Court Rule 3), the expression “details” when used in the context of the subrule is to be understood as referring to those communications between the solicitor and the expert that are relevant to the preparation of the report including any record prepared by those solicitors in respect of such communications.
Mr Roberts in argument, submitted that Rule 160(5) does not give rise to a right to documents. He concedes that if the defendant has not provided proper details of the communications between the solicitors and the expert, then the report of the expert may be excluded from evidence. However, he reiterates that Rule 160(5) does not give rise to a right to obtain documents. He also submitted that it was not strictly necessary for the typed telephone notes to be provided under the terms of the Rules. The provision of those notes was to be seen as the provision of details of communications.
The essential submission put by Mr Roberts for the defendant was that Rule 160(5)(c) does not include within the purview of its operation, what may be described as every secondary reference in another document to the communication between the solicitors and the expert. Consistent with that argument, Mr Roberts also argued that the content of the Rule does not entitle the other party to the litigation to ever access documents. That has to be viewed in the context of the operation of the Rule, including according to its terms, as an abrogation of the right to maintain the claim for privilege. Mr Roberts also argued that even if his first argument failed and the word “details” extends to abrogation of privilege over a record of communications, then the document produced by Ms Taylor was not details of communications relevant to the preparation of the report because it was necessarily a mixture of the work of Ms Taylor and the answers given by Professor Inder to the solicitor’s questions and in that sense it was a hybrid. In order to address that submission, it was necessary to address the proper scope of the abrogation of the privilege under Rule 160 and whether that abrogation would include within its purview, the document prepared by Ms Taylor.
The affidavit prepared by Ms Taylor does not elucidate what Ms Taylor means by the expression “interpret” in paragraph 4 of her affidavit where she says: “it was my attempt to aggregate, assemble and interpret the comments of Professor Inder as set out in my file notes of my conversations with her”. Mr Roberts’ argument was that this comment must be seen in the context of what, under the Rule, is the proper scope of the abrogation of privilege and does it “…fasten over a document having this character…” (T65.1). In his submissions, Mr Frayne SC specifically eschewed the proposition that the document prepared by Ms Taylor is properly characterised as a more fulsome and thus more easily comprehended version of the notes taken by Ms Taylor during her telephone conferences with Professor Inder (T54.18). The essential thrust of Mr Frayne’s submission was that by a proper reading of the meaning of “report” in Rule 4 and Rule 160(1) the document prepared by Ms Taylor was properly to be viewed as a report for the purposes of the Rules, that privilege was abrogated and that it should be produced.
Having decided that the document prepared by Ms Taylor does not constitute a report for Rule 4 and Rule 160(1) of the Rules, the question becomes whether that document must be provided by the first defendant to the plaintiff because it constitutes details of any communication relevant to the preparation of the report between the solicitors and the expert. The answer to that question must be derived first from a proper understanding of the background details. The notes prepared by Ms Taylor derive from conversations that occurred over a three year period between 2006 and 2009 between the solicitors and the expert. Some three years later, the expert provided her final report in relation to the matter. The question is whether those notes are “details” of any communication relevant to the preparation of the report. To that extent, the privilege that may attach to those communications is abrogated by operation of the Rules.
The position in relation to the abrogation of privilege is well known. A party cannot rely upon a failure by another party to elaborate upon privilege matters because if to do so, would disclose the privilege document and so to waive the privilege. Those principles are so well settled as not to require the citation of authorities.
In coming to my decision, I must be satisfied that the document prepared by Ms Taylor constitutes details of the communications which are relevant to the preparation of the reports.
In the end, it is necessary for me to confine my considerations of the position in this matter to the words of and thus the operations of the Rule. I must be satisfied that the document prepared by Ms Taylor from the notes that she had made on her conversations with Professor Inder fell within the description of “details” of any communications relevant to the preparation of the report of Professor Inder. Reluctantly, I am unable to find that the document prepared by Ms Taylor falls within a proper reading of the content of that Rule.
In my view, the document prepared is an anterior note prepared by the solicitor summarising what they have heard from the expert in the conversations had with the expert. What has occurred is that after a period of time and several years after these events, the expert has produced her final report. It could not then be said that the material produced by Ms Taylor, in that context and in that history, was a communication relevant to the preparation of the report, details of which must be provided by the first defendant.
The unsatisfactory feature of this matter is that the solicitors have already provided typed versions of the notes that they made of the telephone discussions that they had with Professor Inder between 2006 and November 2009. The argument of Mr Roberts was that if any complaint could be made, it would be that the notes which have been discovered may not be comprehensible and a better version of the notes should be given. Mr Roberts’ argument was that the obligation under Rule 160(5) to give detail of communications does not mean that the other party has a right to every underlying document recording evidence in a communication because the rule-makers have distinctly drawn the boundaries of the abrogation of the privilege as being one to give details. Further, the document prepared by Ms Taylor is not a document that has been authored by Professor Inder and so that position is different from the relevant authorities such as confronted Bleby J in the Harris Scarfe decision or Douglas J in the Mitchell Contractors Pty Ltd decision in Queensland.
Ultimately, I am required to decide whether this document constitutes details of any communication relevant to the preparation of the report of Professor Inder. On the papers, I am unable to make a finding that this record fits within that description and I would not have been assisted by cross-examination on the topic. That is because it would have been necessary to have cross-examined Professor Inder as well as to have cross-examined the solicitor in order to have identified whether Professor Inder agreed that what was recorded was a communication that was relevant to the preparation of the report.
Professor Inder would not recognise this document as a draft report. She did not author the report which was prepared by Ms Taylor. She does not know of its existence. She does not know, and may well now not remember, whether the details within the document are accurate or that there is any subtle difference between what may have been discussed between 2006 and 2009 and the contents of this document.
Whilst there is no doubt that, within the principles enunciated by Bleby J in Harris Scarfe, that the plaintiff is entitled to see the draft reports of Professor Inder, that is a different matter to the question arising in this action. Ultimately therefore, my decision is that because, in the circumstances of this case the Court is asked to deal with questions of abrogation of privilege, I am not satisfied that the document prepared by Ms Taylor constitutes details of any communication relevant to the preparation of the report and I would not order production of it on that basis.
Decision: the midwives documents
In my judgment, the midwives’ documents are required to be produced because I am not satisfied that the dominant purpose of their production occurred in circumstances where objectively assessed there was a real prospect of litigation or for the obtaining of legal advice. In my opinion, at that time, the dominant purpose of the production of the documents was so that the midwives could have a record of what had transpired at the birth of Max. At that time, from their point of view and assessed objectively, the prospects of proceedings were only a mere possibility. In my view the circumstances of the production of these documents is not materially different from the circumstance that pertained in Grant v Downs (1976) 135 CLR 674. Although it is now clear that the judgment of Barwick CJ (in dissent on the issue but not in the result) now constitutes the law of Australia (the dominant purpose test) all of the Justices of the High Court had no difficulty in deciding that documents of this nature were discoverable.
And it is to be recalled that these employees were in a quite different position than Ms Imgraben where her responsibilities were much more senior than the midwives and she was the responsible person who was required to deal with the sequelae of the birth.
Decision: the Imgraben documents
In my opinion, the Imgraben documents including the report from the Manager Maternity (Ms Kleinig) are to be assessed differently from the midwives’ documents. The dominant purpose for the production of those documents was the obtaining of legal advice within the relationship of solicitor and client as existed between Minter Ellison Lawyers and the hospital.
I am satisfied that the dominant purpose for the production of those documents was that of obtaining legal advice. I am satisfied on the papers that Ms Imgraben reasonably anticipated proceedings on a basis higher than a mere possibility however, it is not necessary for me to decide that matter to dispose of this issue. Rather, my view is that having identified the need to notify insurers, and obtain advice from solicitors, the production of that material was for the dominant purpose of obtaining legal advice. This is the case irrespective of what Mr and Mrs Price may have had in their minds.
In relation to the Klening document, because that document was produced in the same context as the Imgraben documents, it falls within the same category of documents because Ms Imgraben requested the provision of that document from Ms Kleinig. It could not be said that merely because Ms Kleinig was complying with the request of Ms Imgraben that the document would carry a different character or its nature would be distinguishable from the Imgraben documents. Rather, in my view, a sensible assessment of the matter would be that the Klening document would be assessed in the same fashion as the Imgraben documents and not otherwise.
The position is that the “…test is anchored to the purpose for which the document was brought into existence; the use to which a document is put after it is brought into existence is immaterial…” (Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 per Brennan CJ at 508; see also Mundraby v Commonwealth; Lewis v Commonwealth [2001] FCA 884). I am satisfied on the material before me was that the dominant purpose of the Imgraben documents was for the purpose of obtaining legal advice and in these factual circumstances that includes the Kleinig document.
The Rule 61 application
I refer to the Rule 61 application. I accept the submissions made by the defendant that the plaintiff has failed to identify a document referred to in the affidavits. In my opinion, the notion of “criteria” does not necessarily or at all constitute a document and a request for a document in the circumstances of this case is not supported by authority. I refer in particular to the decision of Justice McKenzie in Lilypond Constructions Pty Ltd v Barrie Kenneth Homann and Ors. [2005] QSC 266 at [14] where his Honour held in relation to the equivalent Queensland rule (Rule 222):-
“It is undoubtedly probable that some documentary evidence of instructions was created at some time. However, it seems to me that Rule 222 is directed towards a particular situation, that is to say where a document is specifically referred to in the affidavit. Where it is impossible to identify a specific document referred to in the affidavit and the affidavit is ambiguous as to whether any document was in existence at the time relating to the particular reference to “instructions” I am not persuaded that Rule 222 has any operation. In my view, Rule 222 requires a clear and unambiguous reference to a document before it can operate.”
That case concerned an affidavit filed by defendant solicitors referring to instructions received from the defendant concerning a notice to produce. The Court held that the concept of “instructions” does not constitute a reference to a document. So also in this case, a reference to “criteria” is not a reference to a document although, differently from the Lilypond decision, this was a reference to criteria in an insurance policy. However, in my view, the same position pertains because the reference is to mandatory reporting criteria within the policy. In any event, even if I were to accede to the application of the plaintiff, it would only be to the extent of a set of criteria within a term of an insurance policy which, would not illuminate either the defendant’s position or the plaintiff’s position and would have no utility at all. In those circumstances, I also reject the Rule 61 application.
In these circumstances the formal Orders are as follows:
1.That within 14 days of the date of these Orders, the first defendant produce for inspection of the plaintiff by his solicitors documents numbered 1 and 2 in the schedule marked EH6 to the affidavit of Esther Huxtable sworn on 30 January 2013;
2.Subparagraphs 1(a) and 1(b) as amended and insofar as subparagraph 1(b) refers to document numbered 7 of the plaintiff’s application and paragraph 2 of the plaintiff’s application is dismissed;
3.There be no Order as to costs.
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