Re Sophie

[2008] NSWSC 1268

CITATION:	Director-General, Department of Community Services; Re Sophie [2008] NSWSC 1268
HEARING DATE(S):	3 November 2008
JURISDICTION:	Equity Division Duty List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	3 November 2008
DECISION:	Report excluded pursuant to (NSW) Children and Young Persons (Care and Protection) Act 1998, s29
CATCHWORDS:	EVIDENCE – CHILDREN – admissibility of report on third defendant child prepared by medical professional – whether report prepared pursuant to (NSW) Children and Young Persons (Care and Protection) Act 1998, s 27 – whether report excluded by (VIC) Evidence Act 1958, s 28 or (NSW) Children and Young Persons (Care and Protection) Act 1998, s29
LEGISLATION CITED:	(NSW) Children and Young Persons (Care and Protection) Act 1998, ss 27, 29 (NSW) Evidence Act 1995, ss 121(2), 119 (VIC) Evidence Act 1958, s 28
CATEGORY:	Procedural and other rulings
CASES CITED:	Hare v Riley & Australian Mutual Provident Society [1974] VR 577 Johnston v Commonwealth of Australia [1974] VR 638 National Mutual Life Association of Australasia Ltd v Godrich (1909) 10 CLR 1 R v Bell; Ex parte Lees (1980) 146 CLR 141
PARTIES:	Director-General, Department of Community Services (plaintiff) Names of defendants suppressed
FILE NUMBER(S):	SC 5419/08
COUNSEL:	Mr M J Niel RFD QC w Mr A J Allen (plaintiff) Mr P J Castley (first defendant) Ms K M Reynolds (second defendant) Ms M Castle (third defendant)
SOLICITORS:	Crown Solicitor (plaintiff) Bottrill van Kempen Solicitors Attorneys (first defendant) Belinda Eyers & Associates (second defendant) Paul Darnell & Associates (third defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Monday 3 November 2008

5419/08 Director-General Department of Community Services; “Re Sophie”

JUDGMENT (ex tempore – on admissibility of report)

1 HIS HONOUR: Originally, on the material then before me, without recourse to inspecting the report the subject of the argument, I reached the provisional view that a copy of a report by Professor E to Professor M, which happened to find its way into the hands of the Department of Community Services (“DOCS”), was not prima facie a protected “report” for the purposes of (NSW) Children and Young Persons (Care and Protection) Act 1998, s 29.

2 I also provisionally concluded that, though on the material then before me the contents of that report were likely to be entitled to litigation privilege under (NSW) Evidence Act 1995, s 119, that privilege yielded to the exception contained in (NSW) Evidence Act, s 121(2), which provides that the relevant Division of the Act does not prevent the adducing of evidence if, were the evidence not adduced, the court would be prevented – or it could reasonably be expected that the court would be prevented – from enforcing an order of an Australian Court. This provision is the statutory successor to R v Bell; Ex parte Lees (1980) 146 CLR 141, although narrower than the broader public interest exception suggested in that case. In this case, I think it could at least reasonably be expected that the Court would be prevented from enforcing the order of the Children's Court (now reinstated by the decision of the Court of Appeal), were the evidence not adduced: the evidence was said to disclose a plan by the father to abduct or otherwise remove the child from, and avoid her return to, the jurisdiction.

3 I further provisionally concluded that the argument that this Court should give effect to (VIC) Evidence Act 1958, s 28, should be rejected: first, because it seemed that Professor E had not been consulted for the purposes of treatment at all, but for medico-legal purposes, and accordingly the information obtained by him was not obtained to enable him to prescribe or act for the patient so as to attract the operation of the section; and secondly, because the argument that it should be applied in this State appears inconsistent with what O'Connor J said in National Mutual Life Association of Australasia Ltd v Godrich (1909) 10 CLR 1 at 26:

It is, in my opinion, immaterial whether the doctor whose evidence it is sought to exclude attended the patient in or out of Victoria. The section deals only with procedure in Victorian Courts. It is within the competency of the Victorian legislature to bind in matters of procedure all persons who come before Victorian Courts, even though the result may be, as in this case, to shut out evidence of a transaction which took place outside their territorial jurisdiction. Privilege from disclosure in Court is certainly a matter of procedure only. That being so, there is no reason why the general words used by the legislature, which on the face of them include attendance on a patient in any part of the world, should be restricted in their operation to attendance in Victoria.

4 It seems plain that that proposition has as a corollary that courts of other places and other States are not bound in matters of procedure by such provisions of the (VIC) Evidence Act.

5 Having provisionally concluded that the report was not privileged and was admissible, I therefore determined to inspect it.

6 So far as s 28 of the Victorian Act is concerned, the consequence of that inspection was in one respect to alter, but in another respect to confirm, my provisional conclusion. It altered it in so far as it appeared on the face of the report that Professor E was consulted, at least in part, for the purposes of obtaining professional advice and treatment, and referred the father to Professor M "for further evaluation and further management". The father’s goals in consulting Professor E were described in the report as including "help in managing his stress". Accordingly, it now seems to me that there was a relevant doctor/patient relationship, and there was a contemplation of relevant treatment, such that the operation of (VIC) Evidence Act, s 28, could have been attracted, if it applied in this State. On the other hand, many of the matters disclosed or conveyed by the father to Professor E – including matters of potential relevance to the current application – could not be said to have been "information that was necessary to enable the physician or surgeon to prescribe or act for the patient”, and it is only such information that is privileged [cf Hare v Riley & Australian Mutual Provident Society [1974] VR 577; Johnston v Commonwealth of Australia [1974] VR 638].

7 However, as none of that affects the view that (VIC) Evidence Act, s 28, does not have extra-territorial application, I remain of the view that it provides no basis for rejecting the report.

8 Inspection of the report and further argument has, however, also affected my view on the application of (NSW) Children and Young Persons (Care and Protection) Act 1998, s 29. Upon inspection, it becomes apparent that the tender comprises a copy of a 17 page facsimile transmission from DOCS, Ballina, to the Crown Solicitor, the first page of which is the cover sheet, and the second to seventeenth pages are Professor E's report and attachments. Professor E's report is stamped "Draft in confidence", and is unsigned. It appears to be, therefore, not a copy of what he sent to Professor M, but a draft of what he was contemplating he might send to Professor M. There is no evidence that Professor E in fact sent the original report to Professor M or, if it was, that it was in the same form as this draft.

9 In those circumstances, and given the purpose for which Professor E was retained and the contents of the penultimate paragraph of his report (which refers, inter alia, to the involvement of DOCS), I think the proper inference is that he sent to relevant authorities, at least including the Department of Community Services of this State, a draft of his proposed report to Professor M. And in those circumstances, it follows that he provided the draft to DOCS as a report under Children and Young Persons (Care and Protection) Act, s 27; that is really the only plausible basis on which a professional psychiatrist otherwise bound by obligations of confidentiality would have forwarded such material to DOCS.

10 Section 29(1)(d) makes such a report and its contents inadmissible in any proceedings, other than care proceedings in the Children's Court or any appeal arising from those care proceedings. While it may be a legislative oversight, proceedings of the present nature in this Court do not fall within that exception.

11 I must therefore reject the report of Professor E.

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