Schaler v Riverace Pty Ltd

[2019] WADC 173

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   SCHALER -v- RIVERACE PTY LTD [2019] WADC 173

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   20 SEPTEMBER 2019

DELIVERED          :   12 DECEMBER 2019

FILE NO/S:   CIV 4449 of 2018

BETWEEN:   VICTOR WILHAM SCHALER

Plaintiff

AND

RIVERACE PTY LTD

Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court 1971 (WA) - Application for inspection of a document a subject of the claim of privilege

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 146H(1)

Result:

Application unsuccessful

Representation:

Counsel:

Plaintiff	:	Mr J N Trigg
Defendant	:	Mr G W Nutt

Solicitors:

Plaintiff	:	Stephen Browne Lawyers
Defendant	:	Sparke Helmore Lawyers

Case(s) referred to in decision(s):

Nil

DEPUTY REGISTRAR HARMAN:

1. The plaintiff claims damages for personal injuries sustained whilst acting in the course of his employment by the defendant. 

2. In his list of documents dated 12 March 2019, the plaintiff claimed representation privilege for the following items:

Item number	Description of document	Date
4.4	Form AMS5 – Report on evaluation of the Degree of Permanent Impairment – Dr Andrew Fairhurst	05.06.2018
4.5	Form AMS6 – Certificate of Degree of Permanent Impairment – Dr Andrew Fairhurst	05.06.18

1. By its application of 26 July 2019, the defendant seeks an order that the plaintiff produces those documents.  It submitted that because it had challenged the plaintiff's claim that the documents were the subject of privilege, the onus falls to the plaintiff to found his claim. 

2. In my opinion, the application is no different to any other interlocutory application voluntarily brought by a party to an action.  It is the applicant that carries the onus of persuasion.  The onus on the respondent is to found any submission that it cares to make. 

3. The case put by the defendant depends upon application of s 146H(1) of the Workers' Compensation and Injury Management Act 1981 (WA). It provides as follows:

   (1)An approved medical specialist making an assessment for the purposes of Part III Division 2A, Part IV Division 2 Sub division 3, Part IXA or clause 18A is required to give to each of the worker and the employer, in writing in accordance with the regulations –

   (a)a report of the worker's degree of impairment, including details of the assessment and reasons justifying the assessment; and

   (b)a certificate specifying the worker's degree of impairment. 

4. The defendant relies on evidence of Bonnie Eugenie Whyte in her affidavit of 26 July 2019.  She deposes as follows:

   8.An issue for determination by the Judge at trial is the level of WPI and whether damages can be avoided and, if so, whether a cap applies under s. 93K of the Act …

   12.Sparke Helmore by letter dated 17 April 2019 to Stephen Browne dated 17 April 2019 sought confirmation that Dr Fairhurst is an approved medical specialist, that an AMS Form 1 was submitted by Stephen Browne to Dr Fairhurst under the Act and the AMS Forms 5 and 6 was in response to such AMS Form 1 …

   13.Stephen Browne by letter dated 30 April 2019 confirmed that the elements of S. 146 of the Act were satisfied, except for the query as to whether Dr Fairhurst is an approved medical specialist pursuant to s. 146F of the Act …

   14.I have undertaken a search of the online record held by WorkCover WA of its register of approved medical specialists and Dr Fairhurst is recorded an approved medical specialist pursuant to s. 146F of the Act …

   15.On 21 June 2019 Spike Helmore sought the AMS 5 and 6 from Dr Fairhurst as required by s. 146(H)(1) of the Act …

   16.By telephone on 9 June 2019, Dr Fairhurst's rooms advised that Stephen Browne had not permitted them to provide the AMS 5 and 6. 

   17.Such disinclination by Stephen Browne was confirmed by way of email correspondence on 26 June 2019 …

5. Throughout the hearing and by their written submissions the parties each referred to AMS forms. There was nothing to suggest that the parties had other than a common understanding of the meaning of the term. I take it that AMS forms are prescribed for use for the purposes expressed in s 146H(1).

6. It is my understanding of the defendant's case in the application that because the plaintiff had described the documents as he did in his discovery and that they had been generated by Dr Fairhurst in response to an AMS form 1 provided to him by plaintiff's solicitors, s 146H applied and accordingly the documents had not been brought into existence for the sole purpose contended for by the plaintiff in his list of documents. 

7. As for the proposition put by the deponent at par 13 that in their letter the plaintiff's solicitors had confirmed that the elements of s 146 were satisfied, s 146 provides only defined meanings of the terms 'degree of impairment' and 'secondary condition'.  It provides no support for the defendant. 

8. The letter to which the deponent refers at par 13 is annexed to the affidavit.  According to its terms the letter establishes no greater concession than that the AMS 5 and 6 were provided by Dr Fairhurst in response to an AMS 1.  That concession would only establish the applicability of s 146H in the event that the court is satisfied that the purpose for which the AMS 5 and 6 were generated had been as specified in that provision.

9. The plaintiff's claim to privilege expresses that the documents came into existence for the sole purpose of advising him in relation to his personal injury claim.  I take it that the plaintiff would have the reader infer that the advice contemplated would be provided by a legal practitioner and that it would relate to the claim the subject of the action.

10. In her further affidavit sworn 18 September 2019 Whyte deposes that the plaintiff has not discovered the relevant AMS form 1.  She attaches an uncompleted AMS form 1.  It is open to consider that if completed such a form would reveal a selection from three options as having been the purpose for which the assessment sought was required.

11. The crisp point is that I am not in a position to judge whether the form 1 submitted to Dr Fairhurst had either been so completed or had not somehow been qualified.  I am not assisted by the content of the plaintiff's solicitor's letter of 30 April 2019, the plaintiff's list of documents or any other evidence. 

12. It would not be difficult to imagine that the plaintiff's solicitor had crafted a request for an assessment solely for the purpose of the provision of advice to the plaintiff.  Indeed it is open to speculate that engaging in such a process would precede making a request of Dr Fairhurst for a purpose specified in s 146H.

13. The privilege to which the plaintiff has had recourse is a significant common law entitlement.  I am satisfied that the plaintiff has put his case for a claim to privilege unambiguously.  He has maintained that claim despite both the request and the application.

14. According to the evidence of the defendant I am satisfied that the defendant has not only contested the plaintiff's assertion of privilege but that it has not been provided with the documents by Dr Fairhurst.  In asking Dr Fairhurst for a copy of the documents it has had the opportunity to present to Dr Fairhurst essentially the same case as that presented by the application: that as the forms were completed by him in accordance with the statutory provision. 

15. Dr Fairhurst is an approved medical specialist.  In generating the documents Dr Fairhurst had the opportunity to consider the question of applicability of the statutory provision.  In considering the request of the defendant he had the opportunity to reconsider his view of the applicability of the statutory provision.  I take it that he has maintained his refusal to comply with the request of the defendant.

16. The fact that Dr Fairhurst had communicated with the plaintiff's solicitor adds nothing more than that he was checking his view of what had previously transpired against the view of the party that had issued the request that the documents be created. 

17. I am satisfied that it is appropriate to draw the inference that the person who created the document did not consider that the generation of the forms would require him to provide copies to the defendant.

18. The defendant has not discharged the burden of establishing that there is ground to justify an order for production of the documents.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

TS
Court Officer

11 DECEMBER 2019