Remocker v Manolopoulos (Ruling No 1)

[2011] VCC 1485

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

GENERAL DIVISION

Case No. CI-10-05060

ANDREW REMOCKER	Plaintiff
v
FRANK MANOLOPOULOS	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2011
DATE OF RULING:	25 July 2011
CASE MAY BE CITED AS:	Remocker v Manolopoulos (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2011] VCC 1485

RULING

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Catchwords: PRACTICE AND PROCEDURE – Discovery – legal professional privilege – whether the issue raised in the proceeding amounted to a waiver or an implied or imputed waiver.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr E Makowski	Arnold Thomas & Becker Pty Ltd
For the Defendant	Mr D Masel	Solicitor to the Transport Accident Commission
HIS HONOUR:

Introduction

1          The plaintiff was born on 28 September 1977. He was injured in a transport accident which occurred on 13 August 1996 when he was eighteen years of age.

2          The plaintiff commenced a proceeding by Writ filed 8 November 2010 against the defendant seeking to recover damages for the injuries he sustained in the transport accident.

3 The plaintiff filed a Summons dated 21 April 2011 seeking an order that the time within which the proceeding can be brought be extended to 8 November 2010 pursuant to section 23A of the Limitations of Actions Act 1958.

4          In support of the Summons, the plaintiff swore an affidavit on 8 April 2011 deposing to matters which go to the question whether time should be extended or not.

5          The issue which arose for my consideration was whether certain identified documents in the file of the plaintiff's present solicitors are discoverable, or whether those documents are protected by legal professional privilege.

6          Mr E Makowski of Counsel appeared for the plaintiff and Mr D Masel of Counsel appeared for the defendant.

The Plaintiff's Affidavit

7          Mr Masel submitted that the substance of matters deposed to by the plaintiff in his affidavit raised the issue of the plaintiff’s state of mind of his legal rights.

8          The relevant parts of the plaintiff's affidavit are as follows:

“15	I do not remember making a claim on TAC immediately following the collision, but I assume that such a claim was put in because I am aware that I have received benefits. I had no knowledge of the legal system involved at that time, and I had a general understanding that there was a choice: I could either seek a lump sum, or I could have TAC pay my medical bills and so on. I was 18 at the time of the collision and had every belief that I would be able to get better and accordingly I ‘chose’ to accept the medical expenses and ancillary benefits, believing that there was no need to take the other option of a lump sum. I did not at that time seek legal advice.
16	Over time, my condition did not improve as I expected. At one stage I saw a firm which was run by a family friend, Ray Rockman of Rockman & Rockman. My recollection is that I actually saw his son, Anthony. Nothing much came of that. I do not recall receiving any particular advice about rights and I now understand that that consultation occurred, in any event, after the relevant time limits had expired.
17	My wife has a better understanding than I do about the possible remedies. As she is aware that I have significant ongoing disabilities, she suggested that I get advice. In July 2009 I consulted the firm of Arnold Thomas & Becker. I was advised that I was out of time to make a common law claim. It was suggested that we should at least pursue a claim for an impairment benefit, and I have done so. Accordingly, the Transport Accident Commission has been aware of this claim for some time and has now made an impairment assessment which is under review. However, the Transport Accident Commission has not made available to me any information which it may have regarding the circumstances of the collision, the identity of any witnesses, or other relevant matters.
18	I am aware that a considerable time has passed since the subject collision, but I have suffered significant disabilities which have persisted and which seem likely to persist throughout my adult life. I therefore seek an order pursuant to s.23A of the Limitation of Actions Act, extending the time in which these proceedings may be commenced to 8 November 2010, the date upon which the writ herein was filed.”

9          Mr Masel referred me to a ruling of Bongiorno J in Walker-Shipley v State of Victoria,[1] submitting that it was authority for the proposition that the plaintiff had put the question of her state of mind of her legal rights into issue, and therefore, she had waived legal professional privilege.

[1] [2003] VSC 178

10        In brief, the application before Bongiorno J concerned a cause of action which pleaded a liability on the part of the defendants which occurred between about 1955 and 1964. His Honour referred to the relevant provision as follows:

“An application for the extension of a relevant limitation period made pursuant to s23A of the Limitation of Actions Act 1958, as that section applies to causes of action arising between about 1955 and 1964, as the plaintiff alleges requires proof by her of a number of facts as conditions precedent to the exercise of the discretion conferred by the section in her favour. Among those facts are:-

(a)	that at least one material fact relating to her cause of action was not known to her until after 16 September 2001; and
(b)	that that fact would not have been known to her even if she had taken all reasonable steps to ascertain it.

A non-exclusive list of what constitutes material facts for the purposes of the section is set out in s23A (3).”[2]

[2]             paragraph 4

11        Bongiorno J then made the following observation:

“By merely bringing her application the plaintiff has put in issue in the proceeding the state of her knowledge as to the material facts relevant to the cause of action she claims she has. Further, she relies upon affidavits to establish the required conditions precedent which, arguably at least, raise questions of advice given to her and facts told to her by her legal advisers. By doing so she has waived legal professional privilege at least to the extent of the matters she has disclosed.”[3]

[3]             paragraph 5

12        Following which, Bongiorno J quoted extensively from the judgment of Callinan J in Mann v Carnell:[4]

“‘Waiver of privilege at common law

28       At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that 'waiver' is a vague term, used in many senses, and that it often requires further definition according to the context. … Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. … Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication …, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received ….

29       Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is 'imputed by operation of law' … This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank ((1993) 35 NSWLR 110), the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality, not some overriding principle of fairness operating at large.’”[5]

[4] (1999) 201 CLR 1

[5]             at 28-29

13        Bongiorno J then concluded by observing:

“There is a basic inconsistency between maintaining legal professional privilege in respect of communications between a lawyer and a client and the client's obtaining much of the information which informs her state of mind from that lawyer when that state of mind is central to the litigation being pursued. A client in that position cannot, as a matter of fairness, selectively report such communications for the purpose of demonstrating ignorance of certain facts at a particular time whilst maintaining the confidentiality of the rest of her communication with her lawyer.”[6]

[6]             paragraph 10

14 Mr Masel submitted that the issue of the state of mind of the plaintiff was not only put into issue by the matters deposed to by him in his affidavit, but also by the relevant provisions of section 23A applying to the plaintiff's application:

“(3)

In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following-

(a)	the length of and reasons for the delay on the part of the plaintiff;
(b)	the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)	the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)	the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e)	the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f)	the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

15        In particular, Mr Masel referred to paragraph (f), which raises the issue of not only the legal advice obtained by the plaintiff, but the nature of that legal advice as being relevant matters which the plaintiff must prove in order to obtain the leave which she seeks.

16        Mr Makowski informed me that an arrangement had been arrived at between him and Mr Masel which permitted the defendant to take discovery and inspection of a portion of the present solicitor’s file, but not a body of documents which were handed to me.

The Plaintiff's Affidavit

17        The plaintiff's affidavit does not disclose what advice he was given by Rockman & Rockman save in a very oblique fashion that some advice was sought, but apparently nothing came of the conference which the plaintiff had with Anthony Rockman.

18        Similarly, the affidavit does not disclose what advice the plaintiff was given by his present solicitors, save that I infer that if a discussion occurred that he was out of time to make a common law claim, that it follows that he must have been given some advice regarding a common law claim. He has not disclosed what advice he was given. I assume that on the hearing of the summons he will adduce some evidence in that regard.

19        The delay between the accrual of the cause of action on 13 August 1996 and the filing of the proceeding is some fourteen years and about three months or so, and the delay between the plaintiff consulting his present solicitors in July 2009 and the filing of the proceeding is about four months or so. The two periods of delay will need to be explained.

20        It occurs to me that, although the plaintiff's affidavit is drafted in a very general fashion, he has nonetheless raised the issue of his state of mind, and in any event, I accept the submission made by Mr Masel that the bringing of a summons seeking leave to have time extended of itself raises the issue.

21        The foregoing is supported by what was said by Callinan J in Mann v Carnell[7] and is applied by Bongiorno J in Walker-Shipley v State of Victoria,[8] that in these circumstances, there is an inconsistency in circumstances where the plaintiff obtained information from her present solicitors which informed her state of mind where that state of mind is central to a matter which will require investigation on the hearing of the summons.

[7]             supra

[8]             supra

22        I will now apply these principles to the documents handed to me by Mr Makowski.

The Documents

23        The first document is an e-mail exchange between the plaintiff and his present solicitors dated 29 September 2010. I think it discloses a conclusion reached by the plaintiff regarding whether he had been informed that he had a common law claim through advice given by his present solicitors.

24        The second document is a file memorandum from a solicitor with the plaintiff's present solicitors to another, dated 22 October 2010, regarding the preparation required to prosecute the proceeding.

25        Neither of these documents disclose anything which I consider seriously offends the entitlement of the plaintiff to maintain legal professional privilege weighed against the implied waiver inherent in what the plaintiff has deposed to in his affidavit and the nature of the leave he seeks by summons. The documents must be disclosed to the defendant.

26        The third document is a letter of advice to the plaintiff dated 22 October 2010. For the same reasons relevant to the first and second documents, it must be disclosed to the defendant. The paragraph following the paragraph on page one which reads, “We also discuss cost with you” must be redacted. It is irrelevant to any issue referred to in the affidavit or the summons.

27        The fourth document is a file memorandum from a solicitor of the plaintiff's present solicitors to another, dated 26 October 2010, regarding action which the plaintiff had been advised he should take. For the same reasons relevant to the first and second documents, it must be disclosed.

28        The fifth document is a Memorandum to Counsel dated 4 November 2010. For the same reasons relevant to the first and second documents, it must be disclosed.

29        The sixth document is a handwritten file memorandum dated 6 July 2009 regarding preparation required in the prosecution of the proceeding. For the same reasons relevant to the first and second documents, it must be disclosed.[9]

[9]             This document is out of chronological order. However, I have dealt with it in its position in the bundle of documents when handed to me by Mr Makowski. The same applies to the eighth document.

30        The seventh document is a handwritten statement taken from the plaintiff (undated) regarding the injuries he suffered as a result of the transport accident, the advice he was given by Rockman & Rockman, and why he sought further advice from his present solicitors. For the same reasons relevant to the first and second documents, it must be disclosed.

31        The eighth document is a handwritten diary note dated 4 August 2010 which raises some of the same issues referred to in the third document. For the same reasons relevant to the first and second documents, it must be disclosed.

Conclusion

32        To ensure that the conclusions I have reached in this matter are made abundantly clear, it seems to me that the matters deposed to by the plaintiff in his affidavit, together with the issues raised by the summons, raise the issue of the plaintiff’s state of mind.

33        The documents which I consider must be disclosed by the plaintiff go to the question of the plaintiff’s state of mind, and more particularly, two occasions when he consulted or communicated with his present solicitors and obtained information which created a state of mind in the plaintiff that he had a viable common law claim against the defendant.

34        Again it is trite to say that all applications of this kind depend upon the Court being satisfied of a number of matters, including an explanation for delay. Not only the delay between the accrual of the cause of action, but any further delay between the time when the state of mind of the plaintiff became an informed state of mind that his claim was a viable claim, the steps which the plaintiff took in obtaining medical and legal advice, and the elapse of time between having an informed state of mind and the filing of the proceeding on 8 November 2010.

35        I think all of the documents which I consider must be disclosed go to all of the foregoing matters, and are fairly and squarely raised by the matters deposed to by the plaintiff in his affidavit and by reason of the issues raised by the leave sought by the summons.

36        I can well understand why the plaintiff and his present solicitors consider that the documents withheld are covered by legal professional privilege. In any other circumstances they would be. I consider that their resistance to discovery was reasonable; however, I have found that resistance not to be meritorious.

37        Given that the plaintiff has provided discovery of most of the file of his present solicitors, I think that it would be fair, in the circumstances, to order that the costs of this application be costs in the cause.

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