Rinaudo v Cleary

[2012] ACTSC 5

DOMENICO RINAUDO v NICHOLAS MORRIS CLEARY
                [2012] ACTSC 5 (31 January 2012)

PRACTICE AND PROCEDURE – personal injury action – provision of medical reports by defendant to plaintiff – Civil Law (Wrongs) Act 2002, ch 5- whether of continuing application after commencement of court proceedings
STATUTES – Civil law (Wrongs) Act 2002 – disclosure of medical reports under ch 5 – whether obligation continues after commencement of court proceedings

Civil Law (Wrongs) Act2002, Pt 5.3, ss 49, 50, s 63, 68, 72, 74, 75, 78
Evidence Act 1995 (Cth), s 119
Court Procedures Rules 2006, Pt 2.8, 2.12, rr 601, 1201, 1241, 1242
Legislation Act2001, ss 126, 142
Civil Law Wrongs Amendment Bill 2006
Personal Injuries Proceedings Act 2002 (QLD)

Australian Capital Territory Electricity Authority v Reid (1991) 29 FCR 500
Pappas v Noble (2006) 199 FLR 116: [2006] ACTSC 39
Zejnic v Marcantonio & ors [2008] ACTSC 45
Angus v Conelius & anor [2007] QCA 190
Sevic v Roarty (1998) 44 NSWLR 287
Dean v More Than a Morsel Pty Ltd [2002] ACTSC 101; (2002) 170 FLR 432
Watkins v State of Queensland [2008] 1 Qd R 564
Hamilton v Merck and Co Inc (2006) 66 NSWLR 48

No. SC 246 of 2010

Master Harper
Supreme Court of the ACT

Date: 31 January 2012           

IN THE SUPREME COURT OF THE     )
  )          No. SC 246 of 2010
AUSTRALIAN CAPITAL TERRITORY           )          

BETWEEN         DOMENICO RINAUDO

Plaintiff         

v

AND             NICHOLAS MORRIS CLEARY

Defendant

ORDER

Judge:  Master Harper
Date:  31 January 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. the defendant give to the plaintiff within seven days a copy of the report provided by Dr WJ Coyle to the defendant’s solicitors following his assessment of the plaintiff on 2 December 2010.

1. the defendant pay the plaintiff’s costs of the application.

1. Before the court is an interlocutory application by the defendant in an action for damages for personal injury arising out of a motor vehicle collision.  The plaintiff seeks a copy of a report by Dr WJ Coyle, an orthopaedic surgeon who examined him in December 2010 at the request of the solicitors for the defendant for the purposes of the action.  The determination of the application will turn on the construction of certain provisions of the Civil Law (Wrongs) Act2002 and their interaction with certain of the Court Procedures Rules 2006.

Factual background

1. The plaintiff was injured in an intersection collision between his car and the defendant’s car at Hume in the Australian Capital Territory on 22 July 2007.  The plaintiff claims that he suffered injuries, principally to the neck and low back.  The defendant’s vehicle was relevantly insured with NRMA Insurance. 

1. The plaintiff instructed solicitors, who wrote to NRMA Insurance in September 2008 enclosing a claim notification form and other background material.  NRMA wrote back early in November 2008.  They said that they accepted the notice as complying with the provisions of the Civil Law (Wrongs) Act.  They sought further particulars of the claim. 

1. On 13 December 2008 NRMA Insurance wrote again to the plaintiff’s solicitors admitting that their insured had committed a breach of duty of care.  In January 2009 the insurer made an appointment for Dr Coyle to examine the plaintiff which he attended.  In early March 2009 the insurer, with a brief covering letter, forwarded a copy of Dr Coyle’s report to the plaintiff’s solicitors. 

1. On 7 May 2010 the plaintiff’s solicitors commenced the present action against the defendant.  The insurer instructed the defendant’s solicitors to act on his behalf.  In November 2010 those solicitors arranged an appointment with Dr Coyle for 2 December 2010.

1. The plaintiff’s solicitors asked the defendant’s solicitors for a copy of Dr Coyle’s report which followed the December examination.  The defendant’s solicitors refused to provide a copy, claiming legal professional privilege.  They adhered to their position notwithstanding further correspondence between the solicitors, and in April 2011 the present application was made.  The orders sought by the plaintiff in the application are that the defendant provide a copy of the report to the plaintiff, or alternatively (in the event that the court decides that the plaintiff is not entitled to a copy) that the defendant’s solicitors advise the plaintiff’s solicitors that Dr Coyle’s reports will not be relied on at trial.

The legislation

1. The provisions of the Civil Law (Wrongs) Act relied on by the plaintiff are contained in chapter 5, which is headed “Personal injuries claims – pre-court procedures”.

1. The provisions of the chapter which may bear on the dispute between the parties are set out below:

49.      Definitions – ch 5

In this chapter:

claim means a claim (however described) for damages based on a liability for personal injury, whether the liability is based in tort or contract or on another form of action (including breach of statutory duty), and, for a fatal injury, includes a claim for the dead person’s dependants or estate.

claimant means a person by whom, or on whose behalf, a claim is made.

court, in relation to a claim, means –

(a)   if a proceeding based on a claim has been begun – the court hearing the proceeding; or

(b)   if no proceeding based on the claim has been begun – a court with jurisdiction to hear the claim.

68.      Respondent to give documents etc to claimant

(1) A respondent must give a claimant –

(a)copies of the following in the respondent’s possession that are directly relevant to a matter in issue in the claim:

(i)reports and other documents about the accident claimed to have given rise to the personal injury to which the claim relates;

(ii)reports about the claimant’s medical condition or prospects of rehabilitation;

..   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .

(5) If a respondent fails, without proper reason, to comply fully with this section, the respondent is liable for costs to the claimant resulting from the failure.

72.      Nondisclosure of documents etc – client legal privilege

(1)A party is not obliged to disclose a document or information under this chapter if the document or information is protected by client legal privilege.

(2)However, an investigative report, medical report or report relevant to the claimant’s rehabilitation must be disclosed even though otherwise protected by client legal privilege.

..   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .

(4)If a report mentioned in subsection (2) is required to be disclosed, it may be disclosed with the omission of passages containing only statements of opinion.

74.      Offence not to disclose particular material

A respondent must not withhold information or documents from disclosure under this chapter if the withholding is not –

(a)   permitted under this chapter; or

(b)   approved by the court.

Maximum penalty: 100 penalty units.

75.      Consequences of failure to give document

(1)This section applies if a party fails to comply with a provision of this chapter requiring the party to disclose a document to another party.

(2)The document cannot be used by the party in a later court proceeding based on the claim, or the deciding of the claim, unless the court orders otherwise.

(3)If the document comes to the other party’s knowledge, the document may be used by the other party.

78.      Court’s power to enforce compliance with pt 5.2 and pt 5.3

(1)If a party (the first party) fails to comply with a duty imposed under part 5.2 or part 5.3, the court may, on the application of a party to whom the duty is owed, order the first party to take stated action to remedy the noncompliance within a time stated by the court.

(2)The court may make consequential or ancillary orders, including orders about costs.

1. Counsel for the defendant submitted that s 119 of the Evidence Act 1995 (Cth) also had a part to play. That section is in the following terms:

119      Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a)   a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or

(b)   the contents of a confidential document (whether delivered or not) that was prepared;

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

1. Finally, senior counsel for the plaintiff submitted that some provisions contained in Part 2.12 of the Court Procedures Rules might affect the position.  It is unnecessary for me to set these provisions out in detail.  Rule 1201 defines the terms “expert witness” and “expert report”.  Rule 1241 provides for service of expert reports on other parties to a proceeding, and rules which follow provide for the admissibility of expert reports subject to cross-examination where required by another party.  Rule 1242 provides that where an expert witness changes in a material way an opinion in an expert report that has been served, the witness must provide a supplementary report and the party may not use the earlier report without serving the supplementary report.  Rule 1242 was evidently framed to express as part of the rules a course which was regarded as having being required of parties in such circumstances by dicta of the Federal Court of Australia, on appeal from this court, in Australian Capital Territory Electricity Authority v Reid (1991) 29 FCR 500.

1. A provision in the Civil Law (Wrongs) Act, being an ACT enactment, would be inoperative to the extent of any inconsistency with a provision in the Evidence Act: see for example Pappas v Noble (2006) 199 FLR 116; [2006] ACTSC 39.  Equally, any provision contained in the Court Procedures Rules which was inconsistent with a provision of the Civil Law (Wrongs) Act would also be inoperative to the extent of the inconsistency.

The competing submissions

1. The major issue between the parties is whether chapter 5 of the Civil Law (Wrongs) Act continues to have effect after the commencement of a court proceeding.  This is an issue to which I adverted, but found unnecessary to decide, in Zejnic v Marcantonio & Ors [2008] ACTSC 45. Senior counsel for the plaintiff submits that the obligations imposed on the parties by chapter 5 remain imposed upon them until the claim is resolved, whether by agreement between the parties or a decision of a court. Section 50 of the Act, which goes into some detail about the application of chapter 5, is silent on this question.

1. Counsel for the defendant argues that the provisions of chapter 5 have no application once an originating process is filed in a court.

1. The plaintiff relies on a decision of the Court of Appeal of the Supreme Court of Queensland, Angus v Conelius [2007] QCA 190.  The court (Williams and Jerrard JJA and Atkinson J) held that similar though not identical statutory provisions in Queensland had continuing application notwithstanding the commencement of court proceedings.  Counsel for the defendant sought to distinguish this decision, principally by reason of differences between the Queensland and ACT Acts and the existence of a rule of court in Queensland which has no equivalent in the Court Procedures Rules.

1. Counsel for the defendant submits that significance should be attached to the title of chapter 5 (Personal injuries claims – pre-court procedures). Counsel noted that the Queensland legislation considered by the Court of Appeal in Angus v Conelius  did not include any reference to pre-court procedures in the heading of the applicable part. Counsel pointed out that a heading to a chapter of an Act is part of the Act, by virtue of s 126 of the Legislation Act2001. Section 142 of the Legislation Act2001 permits a court to refer to an explanatory statement in working out the meaning of an act. 

1. Counsel for both parties sought to draw some comfort from the explanatory statement for the Civil Law Wrongs Amendment Bill 2006 which led to the provisions presently under consideration.  Counsel for the defendant noted that the then Attorney-General had stated that the proposed reforms contained pre-trial procedures to assist settlement of cases before they get to court.  The Attorney, referring to open disclosure, said that the legislation would allow appropriate cases to be managed outside the court system so that compensation would be made available much earlier and at a lower cost, and so that in cases where there was no evidence of negligence, a decision to refuse a claim could be made with greater certainty.  Counsel for the defendant submitted that it was clear from these extracts from the explanatory statement that the intention of the legislature was to introduce procedures to apply to claims for personal injury before they got to court, or in other words, outside the court system.

1. Chapter 5 of the Civil Law (Wrongs) Act includes part 5.3 (Obligations of parties to give documents and information). That part included s 68, set out earlier in these reasons. Senior counsel for the plaintiff draws attention to the opening section of part 5.3, s 63, which states that the purpose of the part is to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim. He submits that effect can be given to that purpose only if its provisions apply whether or not court proceedings have been instituted. Otherwise the purpose would be frustrated by the commencement of proceedings. He further submits that on a proper reading of the whole of the explanatory statement, it is clear that the purpose of the legislation is to encourage settlement of claims at as earlier a stage as practicable, but nonetheless to encourage settlement rather than trial and determination by a court. The statutory process of disclosure is clearly intended to be a continuing one, consistently with that objective.

1. A further issue between the parties relates to whether Dr Coyle’s first report to the insurer was protected by legal professional privilege, and whether the insurer’s provision of the report to the plaintiff’s solicitors waived that privilege. He submits that the provision of the report was by compulsion of law, because of the operation of s 68 of the Civil Law (Wrongs) Act.  It is common ground that a document disclosed to one party by another under compulsion of law does not lose privilege purely because of the disclosure: see Sevic v Roarty (1998) 44 NSWLR 287; Dean v More Than A Morsel Pty Ltd [2002] ACTSC 101; (2002) 170 FLR 432.

1. Senior counsel for the plaintiff submits that the disclosure of the first report was not under compulsion. He supports the submission with the fact that the letter from the insurer enclosing the report made no reference to s 68 of the Civil Law (Wrongs) Act, and that there was no evidence from the author of the letter (the insurance claims officer) as to what was in his mind when he provided the copy of the report. 

1. Counsel for the defendant submitted that whatever might have been in the mind of the claims officer, the insurer was under a statutory obligation to provide the plaintiff’s solicitors with a copy of the report.  In those circumstances, any privilege in the first report had not been waived. 

1. Senior counsel for the plaintiff further submitted that the defendant was under an obligation either to disclose Dr Coyle’s second report, or to commit himself not to rely at trial on the first report, or on Dr Coyle at all.  This followed from Australian Capital Territory Electricity Authority v Reid, cited above.  A full bench of the Federal Court (Gallop, Davies and Spender JJ) said in that case that the effect of the then Supreme Court Rules was that service of a medical report gave notice to the other side not only of the content of the report but also of the fact that the serving party intended to rely on the report at trial.  It followed that any supplementary report from the same medical practitioner must also be served, or alternatively notice must be given that the serving party no longer intended to rely on the earlier report.  Unless such a practice was adopted, the party on whom a medical report was served would be misled as to the course proposed to be taken at trial.

1. As I mentioned previously, rule 1242 now covers such a factual situation, at least to some extent. 

1. Counsel for the defendant submitted that Australian Capital Territory Electricity Authority v Reid had no application, being relevant only to a situation where a party had served a medical report pursuant to the Court Procedures Rules2006 in the lead-up to a hearing. 

1. Counsel for the defendant raised another issue about privilege. He referred to rule 601 of the Court Procedures Rules2006, which relevantly provides that for part 2.8 of the rules (disclosure), a document is privileged from production if it is a document of which evidence could not be adduced over objection because of part 3.10 of the Evidence Act. Section 119 of that Act provides that evidence cannot be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of a confidential communication between the client and another person, or between a lawyer acting for the client and another person, or the contents of a confidential document, that was made or prepared for the dominant purpose of the client being provided with professional legal services relating to an anticipated or pending proceeding in which the client might be a party. Dr Coyle’s second report met this test and was hence protected by privilege.

Consideration of the issues

1. I should initially dispose of the argument that privilege attaches to the second report by statute. Section 119 of the Evidence Act continues to apply in this Territory until the proclamation of Territory legislation in virtually identical terms, expected within a matter of months. However, s 119 applies to a document sought to be adduced in evidence at trial and does not alter the common law as to legal professional privilege over documents brought into existence for the dominant purpose of pending litigation so far as disclosure between parties is concerned. The effect of s 601 is to apply the test under s 119 for that purpose, but only in relation to the application of Part 2.8 of the Civil Procedure Rules. Neither party argues that that part is of any relevance to the present application. Rule 601 and the Evidence Act can hence be put to one side.

1. I next deal with Dr Coyle’s first report. It does not seem to me that that report was privileged at any time. The insurer commissioned the report at a time when neither side had court proceedings in contemplation. The insurer had not sought or obtained legal advice. I can, I think, take judicial notice of the fact that a significant number of straightforward claims for damages for personal injury arising out of motor vehicle collisions are settled by insurers without court proceedings ever being commenced or even threatened. To that extent a significant object of chapter 5 of the Civil Law (Wrongs) Act has been achieved.  It does not seem to me that Dr Coyle’s first report satisfies the criteria under the general law for legal professional privilege.

1. If I were mistaken about that, I would not be satisfied that the provision of the report by the insurer to the plaintiff’s solicitors waived privilege. I am satisfied that the provision of the report was required by s 68 of the Act. Failure to provide a copy of the report might have exposed the present defendant to sanctions under s 74 and 75 of the Act. The report was accordingly provided under compulsion of law, not by choice, and no waiver of privilege would have flowed from its provision. It follows that the provision of Dr Coyle’s first report did not waive, for the future, privilege in any subsequent reports by Dr Coyle.

1. This brings me to an analysis of chapter 5 of the Civil Law (Wrongs) Act. It is clear that the court has power under s 78 to order a party to take action to remedy non-compliance with a duty imposed by part 5.2 or part 5.3 of the Act. In relation to a medical report, legal professional privilege, or client legal privilege as it is called in the Act, does not protect it from disclosure. Section 72 generally protects documents from disclosure if privileged, but this specifically does not extend to medical reports. Having said that, subsection 72 (4) permits a disclosing party to omit from a medical report passages containing only statements of opinion. The process of determination of a dispute between parties as to whether omitted portions of a medical report contain only statements of opinion will be for another occasion.

1. The significant question for determination is whether chapter 5 continues to have application once legal proceedings are instituted. I have come to the conclusion that it does. One reason for the conclusion is that such an interpretation is consistent with the clear purpose of the chapter, being the settlement of personal injury claims at as early a stage as practicable, with the secondary objective of reducing costs in litigation. It would be inconsistent with that objective for the disclosure obligations on the parties to cease at the moment of institution of court proceedings.

1. A second reason for my conclusion is that court is defined in s 49, for the purposes of chapter 5, to include, in relation to a proceeding based on a claim which has been begun, the court hearing the proceeding. If the construction urged by counsel for the defendant were correct, that portion of the definition of court would be otiose.

1. A further reason for the construction which I prefer is that it is consistent with the decision of the Queensland Court of Appeal in Angus v Conelius. True it is that the legislation there under consideration was not verbatim with chapter 5 of the Civil Law (Wrongs) Act, but on a consideration of the reasons for decision of the Court of Appeal, I am not persuaded that there is any difference between the Queensland Act and the ACT Act which would justify distinguishing the decision.

1. Counsel for the defendant referred me to other interstate Court of Appeal decisions which he submitted supported the construction he was urging.  These were Watkins v State of Queensland (2008) 1 Qd R 564 and Hamilton v Merck and Co Inc (2006) 66 NSWLR 48. In each case counsel referred to statements in the judgments, in the first by Mackenzie J and in the second by Spigelman CJ, as to the objective of the Personal Injuries Proceedings Act 2002 (Qld) being to encourage settlement of disputes prior to the institution of legal proceedings. Suffice it to say that neither case seems to me authority for the proposition that the disclosure requirements under that Act cease on court proceedings being instituted.

1. I am accordingly satisfied that the defendant is obliged by s 68 of the Civil Law (Wrongs) Act to provide to the plaintiff a copy of Dr Coyle’s second report.  The copy of the report may be edited by removing passages which contain only statements of opinion. 

1. I have found it unnecessary in reaching this conclusion to rely upon Australian Capital Territory Electricity Authority v Reid. That decision would not, it seems to me, have been adequate of itself to impose any obligation at this stage on the defendant. The decision, so far as it remains relevant, applies in relation to reports served pursuant to part 2.12 of the Court Procedures Rules.  Dr Coyle’s first report was not served pursuant to those provisions, and the second report, when provided pursuant to the order I propose to make on the present application, will also not have been served under those provisions.  The decision is accordingly not of any assistance in resolving the issue before me. 

Conclusion

1. For these reasons I propose to exercise the power given to the court by s 78 of the Civil Law (Wrongs) Act to order the defendant to give to the plaintiff within seven days a copy of the report provided by Dr WJ Coyle to the defendant’s solicitors following his assessment of the plaintiff on 2 December 2010.

1. The defendant must pay the plaintiff’s costs of the application.

   I certify that the preceding thirty six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Harper.

   Associate:

   Date: 31 January 2012

Counsel for the plaintiff:  Mr G A Stretton SC
Solicitor for the plaintiff:  Stacks Compensation Solicitors
Counsel for the defendant:  Mr M A McDonogh
Solicitor for the defendant:  Sparke Helmore
Date of hearing:  5 May 2011
Date of judgment:  31 January 2012