State of Queensland v Watkins

[2008] HCATrans 250

[2008] HCATrans 250

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B70 of 2007

B e t w e e n -

STATE OF QUEENSLAND

Applicant

and

STEPHEN WATKINS AS LITIGATION GUARDIAN FOR HARRISON GRINDLEY WATKINS

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 18 JUNE 2008, AT 10.46 AM

Copyright in the High Court of Australia

MR W. SOFRONOFF, QC, Solicitor‑General for the State of Queensland:   May it please the Court, I appear for the applicant with my learned friend, MR D.B. O’SULLIVAN.  (instructed by Minter Ellison)

MR S.S.W. COUPER, QC:   May it please the court, I appear with my learned friend, MR J.M. HARPER, for the respondent.  (instructed by Slater & Gordon)

KIRBY J:   Yes, Mr Solicitor.

MR SOFRONOFF:   Your Honours, before going to the passages in the reasons of the Court of Appeal, which we respectfully submit are in error, may I ‑ ‑ ‑

KIRBY J:   You are going to try and soften us up with something on costs, are you?

MR SOFRONOFF:   No, your Honour, we have already undertaken to meet the costs on an indemnity basis, whatever the result.

KIRBY J:   But I wondered if that extended to not disturbing the cost orders of the court below?

MR SOFRONOFF:   Absolutely, your Honour.

KIRBY J:   So that is clear?

MR SOFRONOFF:   Yes.

KIRBY J:   Yes, very well.

MR SOFRONOFF:   What I was going to say, your Honours, is I wanted to take your Honours on a brief tour of the relevant provisions in order to be able, I hope, to demonstrate what we contend is the arguable error.

KIRBY J:   This is a tour of the relevant provisions of this special Queensland statute?

MR SOFRONOFF:   Well, your Honour, could I say this.  Firstly, there is an ACT statute which is in materially identical terms.  Secondly, if indeed the reasons of the Court of Appeal are wrong, then there has been a very very serious effect for the conduct of personal injuries litigation under the terms of the statute in Queensland for both applicants for damages, claimants for damages and for respondents both.

KIRBY J:   Yes, but substantially this is a Queensland statute that ought to be sorted out in this State by the highest courts of this State and that is what has happened.

MR SOFRONOFF:   Your Honour, the High Court is the highest court in this State.

KIRBY J:   That is true, but we cannot deal with every matter that arises under the construction of State and Territory legislation.

MR SOFRONOFF:   Of course, your Honour.

KIRBY J:   We have our role to play, they have their role to play.  But, anyway, we will get to the substance of the matter and you might be able to persuade us.

MR SOFRONOFF:   Well, could I foreshadow this.  If indeed your Honours are satisfied at the end of the hearing of this application that there is a serious argument that their Honours were wrong in their construction of the Act, then that would be a good reason to grant leave, notwithstanding that it is a local statute – leaving aside the ACT – because it is such a fundamental statute to litigation in this State.

KIRBY J:   You say it applies in many many cases?

MR SOFRONOFF:   That is right, your Honour, and it will apply to applicants and respondents and it will govern how solicitors conduct their business.

KIRBY J:   But what is so wrong with the decision that has now been arrived at by the Court of Appeal?

MR SOFRONOFF:   Could I come to that in about five minutes, your Honour?

KIRBY J:   Yes.  It does seem to be, if nothing else, in the spirit of the statute.

MR SOFRONOFF:   May I come to that, your Honour?

KIRBY J:   Yes.

HEYDON J:   Just one thing, Mr Solicitor.  Are you going to allow time for ground 10 of your draft notice of appeal, the question of procedural unfairness?

MR SOFRONOFF:   Sorry, your Honour, ground?

HEYDON J:   Page 58, ground 10, which is linked to paragraph 36 of your summary of argument.

KIRBY J:   It is the procedural fairness question.

MR SOFRONOFF:   Yes, I intend to deal with it, your Honour.  Your Honours, could I ask you to look at section 9A of the Act?  As your Honours know, the Act applies to personal injuries proceedings other than, relevantly, workers compensation cases and motor accident cases.  In particular, this will apply to medical negligence cases and the Act makes provision for notice of a claim to be delivered and then a response to that claim to be delivered.

In medical negligence cases there is an additional requirement contained in 9A and your Honours will see that that requires an initial notice, yet another notice, to be delivered first.  The reason I take your Honours to that is that that is the first notice that is given to the person believed by the claimant to be the responsible and potential defendant and the timing of that notice is provided for in subsection (4).  Your Honours will notice that the timing is based upon either “9 months after the day medical incident” or “1 month after the day the claimant first instructs a law practice to act on the person’s behalf in seeking damages”.

The reason I point that out is, the fact that the Act makes provision for notices of claim and the rest of it does not exclude the possibility that a claimant and a potential defendant regard this as a case where litigation cannot be anticipated until a later date, that is to say, litigation can be anticipated before a claim is made, while a claim is in the process of being considered or afterwards and subsection (4) shows that the legislature recognised that to be so.

If your Honours would then go to section 9 which provides for the notice of claim proper which applies to all cases. It too in 9(3)(b) makes similar provision in relation to the timing. Section 20C(1)(b) is in similar terms. A notice was given in this case by a solicitor’s practice, by a solicitor. If a notice as given is a notice complying with the Act, the respondent must say that the notice complies with the Act. Then section 20 provides that the respondent must “take reasonable steps to inform himself, herself or itself about the incident”. Your Honours will notice that section 20 nowhere obliges a person to commission or produce a report. The only obligation is “to inform himself, herself or itself”. It might be by means of the ‑ ‑ ‑

HEYDON J:   What about section 20(3), “An offer, or counteroffer, of settlement must be accompanied by . . . documents . . . in the offerer’s possession that may help the person to whom the offer is made make a proper assessment of the offer”?

MR SOFRONOFF:   I will come to that right now, your Honours.  While there is no obligation ‑ ‑ ‑

KIRBY J:   These documents were referred to in the professor’s report, were they not?

MR SOFRONOFF:   No, your Honour, the letter of instruction or letters of instruction were; the file note was not.

KIRBY J:   But there was a reference to a lengthy telephone conversation?

MR SOFRONOFF:   He submitted his tax invoice and that was inadvertently included with the bundle of material sent to the other side and when the solicitors on the other side saw the tax invoice, it referred to a fee for the telephone conversation and they said, “Is there a file note?” and of course there was and hence it arose it out of that.  He did not refer to it in the report.

KIRBY J:   Yes.

MR SOFRONOFF:   Could I deal with 23, your Honour?

KIRBY J:   But presumably one would infer the report is prepared on the basis of the lengthy telephone conversation?

MR SOFRONOFF:   No, your Honour.

KIRBY J:   Really, Solicitor, I mean, what, do you just put that out of your mind?

MR SOFRONOFF:   Your Honour would be wrong in assuming that.  Can I put that another way.  Your Honour has no justification for assuming that.

KIRBY J:   I just find that completely unrealistic.  If there is a lengthy telephone conversation where the qualified expert has been qualified to give an expert opinion that that is completely immaterial.  Was it about negotiations about the fee?  Very unlikely.  It was about the case.

MR SOFRONOFF:   Your Honour, I will accept that.  For the purposes of argument, it makes no difference.  Could I deal with subsection (3).  Could your Honours notice in subsection (3) that there are three categories of material that must be handed over; medical reports, assessments of certain types “and all other material, including documents relevant to assessing economic loss, in the offerer’s possession that may help the person”, that is to say, reports, assessments and all other material, including documents, provided they satisfy two criteria; they are in the offerer’s possession and they may help the person to make a proper assessment.  Reports, assessments and other material may come into existence before the claim is made, after the claim is made, before litigation is anticipated, after litigation is anticipated.  In any event, subsection (3) requires all ‑ ‑ ‑

CRENNAN J:   Was there not a letter which indicated that this report was provided for the purposes of section 20(3)?

MR SOFRONOFF:   No, your Honour.  The affidavit of Ms Eden, the solicitor, was that the letters were brought into existence for the dominant purpose of anticipated litigation and that the file notes were created by her for the dominant purpose of anticipated litigation.

KIRBY J:   And it is the two classes that you are seeking to keep under the cloak of professional privilege; the letters and the file note memoranda.

MR SOFRONOFF:   Yes, the letters and the file note.  Your Honours will notice that they fall into the category of other material, including documents relevant, and you can assume that they are relevant.

KIRBY J:   Yes.  You will lift your eyes, in the end, from the text and look at the purpose of this legislation.

MR SOFRONOFF:   I will, your Honour.  Your Honours will notice that (3) would, on its face, abrogate legal professional privilege.  If your Honours now go to 27 ‑ ‑ ‑

HEYDON J:   It would do a lot more than that.  It would make every single piece of paper, in the example of this case, that assisted the plaintiff’s case liable to be handed over.

MR SOFRONOFF:   Yes, that is right, and because of the inclusion of the words “other material, including documents”.  Reports, of course, we can argue about the borders ‑ ‑ ‑

CRENNAN J:   So letters of instruction and so on.

MR SOFRONOFF:   That is right, your Honour.  That is in Division 1 of the Act.  If we go then to 27.  This is the general duty.  It is contained in Division 2.  It is the general duty, 27.  You have to give, again, “reports” – and assessments, we can take it, are reports – “and other documentary material about the incident” – about the incident, not about sequelae but about the incident.  Over the page, “reports about the claimant’s medical condition”, “reports about the claimant’s cognitive”, et cetera.  Finally, if asked, information about the circumstances, which is wider.

So it covers reports and it covers information about the circumstances, which might not even be documentary.  That too would override legal professional privilege if it stood alone.  Some such documents might be privileged, some such documents might not be privileged.

If one then goes to 30, it saves legal professional privilege in subsection (1) and that would be the end of the matter but for subsection (2) which excludes reports, but not other material, including documents.  That, in our respectful submission, is a calculated omission because the rubric reports and other material appears in numerous places in the Act but it does not appear in 30(2).

HEYDON J:   Justice Keane gets around that by saying that, for example, the note was never privileged at all, because it was associated with something that could never have been ‑ ‑ ‑

MR SOFRONOFF:   Could I deal with that now?  Could I go to the reasons?

HEYDON J:   Please.

MR SOFRONOFF:   Could I go to the reasons, your Honours, at paragraph [72].  His Honour said:

Section 30(2) requires that “investigative reports, [and] medical reports” must be disclosed “even though otherwise protected by legal professional privilege . . . It is readily apparent that s 30(2) of the PIPA is not intended to operate to preserve privilege in any of the documents described in s 20(3) –

Your Honours, we ask, rhetorically, with respect, how could that be so when section 30(1) provides that:

A party is not obliged to disclose information or documentary material under division 1 or this division if the information or documentary material is protected –

That is to say, section 30 is directed only at the statutory obligations to disclose under the provisions that I have taken your Honours through.  Section 30 has no purpose other than to limit the scope of disclosure under those provisions in Division 1 and 2, expressly so.  It cannot be said, we respectfully submit, that section 30 operates outside the strictures in Division 1 and 2 requiring compulsory disclosure of reports and documentary material.

Now, as your Honour Justice Heydon pointed out, the scope of those sections in Division 1 and 2 are very wide in including within the net of discloseable material, material and information, documentary or otherwise, and it would therefore include any privileged information but for the effect of section 30(1) and 30(2).  Now, his Honour saw a difficulty in that and we would respectfully wish to contend on an appeal that that is incorrect.  If your Honours go then to paragraph [69] on the same page, page 40, his Honour said:

I have already noted that there is no suggestion in this case that Prof MacLennan’s report was obtained for any purpose other than compliance with s 20 of the PIPA.

Your Honours, there certainly was, because if your Honours go to page 29, paragraph [40], his Honour in the second half of that paragraph cites Ms Eden’s affidavit.

Ms Eden, the solicitor acting for the State in respect of Mr Watkins’ claim, swore an affidavit that the letters of instruction and file note “were brought into existence for the dominant purpose of anticipated litigation”.  Ms Eden was not cross-examined . . . 

It is noteworthy that Ms Eden did not assert that the report of Prof MacLennan itself was commissioned for the dominant purpose –

But that is precisely, we respectfully submit, what she swore, that is to say, that the commissioning letter, the letter of instruction, was written for that purpose and the report was therefore commissioned for that dominant purpose. What his Honour concluded, though, was that because there is an obligation under section 20 of the Act for the State to inform itself, it followed that no privilege could arise in relation to a report which had as one of its reasons the obligation to inform itself under section 20, whereas, while that might be so, Ms Eden has sworn, and she was not challenged, that the dominant purpose was anticipated litigation.

That is hardly farfetched in a case where a firm noted in Brisbane for pursuing personal injuries claims acts for an infant claim in suffering serious injury in a matter in which it is said that the hospital was negligent in the conduct of the claim and in which the State then retains solicitors to deal with it in circumstances where the Act itself, as your Honours have seen, anticipates that it is dealing with potential claims for damages that hopefully will not crystallise into litigation but which often do, otherwise there would be no litigation.

KIRBY J:   Without revealing the privilege which you are seeking to protect, could you give some hypothetical instances of the problem that is presented by the Court of Appeal’s interpretation, because on one level, at least looking at the matter for the first time and intuitively, the Court of Appeal’s interpretation does seem to me to be carrying forward the scheme of the Act, which is an unusual one, to give plaintiffs advantages which they ordinarily never would have had in litigation in order to promote early settlement and spending money on the plaintiffs, not on lawyers.

MR SOFRONOFF:   Your Honours are familiar with the analysis in Baker v Campbell as to the justification for the retention of legal professional privilege.

KIRBY J:   Well, we know all that and we know it is just an aspect of the law of evidence, it is a fundamental right of citizens, of individuals.

MR SOFRONOFF:   Quite.  What this statute does, we can see from section 30, is not to seek to abrogate legal professional privilege entirely in aid of a statutory policy of open information with a view to resolving claims, but to abrogate it partially.  What we contend is that if privilege otherwise exists, then solicitors are free to conduct their practices in the orthodox way, to obtain information in anticipation of litigation in the orthodox way and until the point comes when a report is prepared upon which reliance is sought to be placed, then one is not obliged to disclose one’s hand.  Of course, that may be contrary to one’s own interests in due course, but the reasons the High Court gave in Baker v Campbell for the importance of the retention of the privilege applies equally here, and the statute has not abrogated that.

In answer to your Honour’s question, the difficulties that will be faced by solicitors, who know, as soon as a notice of claim has been given, indeed, as soon as they become aware that a claim might be given under this Act will mean that if they do not wish to prejudice their client’s case in due course if litigation ensues, they will have to conduct themselves as though no privilege existed.  Now, the legislature might have intended that, and Justice Keane and the others are the judges who agreed with him, concluded that it did intend that.  We wish to make what we respectfully submit is a serious and weighty submission, that is incorrect, that section 30 shows that that is incorrect.  Those are our submissions, your Honours.

HEYDON J:   Natural justice, you were going to talk ‑ ‑ ‑

MR SOFRONOFF:   I am sorry, your Honour.  As to that, your Honours, in the case ‑ ‑ ‑

HEYDON J:   One of your points is this.  The solicitor, Ms Eden, swore in affidavit, it was not cross‑examined, somehow or other the Court of Appeal sidestep that and say, “But why?  On a factual basis or some legal basis?”  If it is a factual basis – I know you were not in the Court of Appeal and perhaps your junior was not either, but was a process made about what was going on?  Was an attempt made to call further evidence from Ms Eden?

MR SOFRONOFF:   No, your Honour.  No attempt was made to call further evidence.

KIRBY J:   The matter was clearly raised in the Court of Appeal.  It is not as if you first heard of this when you got the reasons of the Court of Appeal.  You are not suggesting that.

MR SOFRONOFF:   No, your Honour.

HEYDON J:   What about paragraph 36 of your written submissions?  You said questions were “not agitated in the Court of Appeal or before the primary Judge”.  Now, if they were not agitated, is that saying that Justice Keane’s points were not argued?

MR SOFRONOFF: I think the way the matter arose, your Honour, was that, notwithstanding Ms Eden’s affidavit, the view that his Honour took of section 20 meant that his Honour was not prepared to accept that evidence.

KIRBY J:   No, but we want to get it on the line.  Are you suggesting that Justice Keane did not raise for argument the view that he has taken and that the matter proceeded in the Court of Appeal on the issue of waiver as distinct from his Honour’s view of the structure and purpose of the statute, because if you are making that, that is a serious contention and one of our functions in this Court is to ensure that parties get procedural fairness in the intermediate courts.

MR SOFRONOFF:   Your Honour, Mr Jackson, who appeared below, is here and I will just take some instructions from him.  It was raised in argument, your Honour.  The view that Justice Keane reflected in his reasons was raised in argument.  I do not contend that we first read about it in the reasons.  Your Honours will see at page 30, at the top of the page:

nothing was made of this curiosity which came into focus during argument in this Court.

I think that is a reference to, on the one hand, what Ms Eden had sworn and, on the other hand, Justice Keane’s view which he adopted in his reasons, that Professor MacLennan’s report was not commissioned for the dominant purpose of anticipated litigation because, as he later found, it was commissioned for the purpose of informing the State about the circumstances of the incident.

HEYDON J:   In a sense, the decisive step which Justice Keane took is that which appears in paragraph [81].  He says it would be “anomalous” if Professor MacLennan’s report were not privileged but the commissioning of the report were.  Now, was that point raised with your predecessor in the Court of Appeal?  Page 46, paragraph [81].

MR SOFRONOFF:   I am instructed not, your Honour. Of course, what, we respectfully submit, infects that reasoning is the proposition which by then his Honour had accepted or had concluded that a report sought inter alia for the purposes of section 20, to inform oneself under section 20, could not be the subject of legal professional privilege.

HEYDON J:   That is one possible flaw.  Another possible flaw is that even if it could not, it does not follow that the solicitor’s conversation getting it was not.

MR SOFRONOFF:   That is right.

HEYDON J:   Forgive me for all the nots.

MR SOFRONOFF:   Yes, your Honour.

KIRBY J:   Well, I must say that normally when it suggested that a Court of Appeal has acted in an unfair way, that matter is dealt with by an affidavit instead of us scurrying in this Court today trying to find out what happened.  I mean, it is a serious thing to contend that an intermediate court has acted unfairly in the way in which it is disposed of the matter and there are at least some indications in Justice Keane’s reasons that he raised the matter and that nothing substantive was made of it.  Then you come up here and you say that he did not really give you the chance to deal with this matter and that you should have had the opportunity putting evidence.  But if the matter was raised in the Court of Appeal, then you have got to be vigilant and alert and say, “Well, we want to put on some evidence in the Court of Appeal on this matter”.

MR SOFRONOFF:   But, your Honour, the problem was that the evidence was before the court below, before the Court of Appeal, was not challenged and yet his Honour concluded contrary to that evidence by means of an argument as to the effect of section 20.

KIRBY J:   That is a legal question and on that I assume further evidence could not have resolved the matter one way or the other.  That depends on one’s view of the operation of the PIPA Act.  That is correct, is it not?

MR SOFRONOFF:   Yes, your Honour.

CRENNAN J:   His Honour does not raise for a moment any lack of genuineness in the opinion that the solicitor held in relation to the purposes for which the material was being prepared.

MR SOFRONOFF:   No, he does not say that, but what one draws from his conclusion is that she must be mistaken.

CRENNAN J: That turns on his construction of section 20.

MR SOFRONOFF:   Yes, it must be, therefore, that she is mistaken and yet that was never suggested to her.

CRENNAN J:   That is because there is a question of law involved which, on that reading, she has misapprehended or misunderstood, as it were.  I mean, on that view the evidence would not be relevant.

MR SOFRONOFF:   But, your Honour, that would still have to be put because what one is looking at is her actual intention.  If her actual intention was to speak to Professor MacLennan on the telephone ‑ ‑ ‑

KIRBY J:   I do not know if you feel the discomfort I have, but in the old days you could not swear an affidavit saying it was prepared for the dominant purpose, the litigation.  That is a conclusory affidavit.  The affidavit should reveal the sequence of events and whether Professor MacLennan who was brought in to try and help the State deal with the predicament that had arisen in the hospital in order to ensure that this sort of thing did not happen again in hospitals, or was he, as it were, going to be in the fighting camp of the State for the purpose of resisting the plaintiff’s claim, or was it both?  But to say it is the dominant purpose is really a conclusion rather than a statement of fact.

MR SOFRONOFF:   That is true, your Honour, but the affidavit was not objected to.  The case below was conducted on the footing of that affidavit, the content of which was not challenged.  So if it was not an ideal affidavit, it certainly does not lie in the mouth of the respondent now to contend that it is inadmissible or means something other than what it means or that it has the effect which we contend for.

KIRBY J:   Yes.  We have been far too indulgent with you, Solicitor.  Your time is up.

MR SOFRONOFF:   I see the red light.  Thank you, your Honour.

KIRBY J:   Yes, Mr Couper.

MR COUPER:   Your Honours, the approach his Honour Justice Keane took below first involved a fact‑finding exercise. The starting point was a finding of fact that Professor MacLennan’s report was created for the purpose of complying with section 20(3), that is, producing a document which would assist the claimant in assessing the response to the claimant’s offer. That finding of fact appears, in our respectful submission, at paragraph [69] of his Honour’s reasons at page 40 of the application book.

HEYDON J:   One problem with the first couple of sentences in that paragraph is this.  As I understand it, what took place before Justice Atkinson was a different battleground from that which appeared in the Court of Appeal.  Before her it was a question of waiver.  The Court of Appeal disagreed with her on waiver and have developed a second ground for dismissing the appeal from her.

To say there is no suggestion that the report was obtained for any purpose other than compliance with section 20 is really something you would have to thrash out at a trial, is it not, or at a time when people are cross‑examined? The deponent was not cross‑examined. It is difficult to set her, admissible or not, standard practice or not – I am not so sure that it is not standard practice, but you have to raise the matter with the witness, do you not?

MR COUPER:   Your Honour, I would say three things about that. The first is that his Honour Justice Keane recognised that the affidavit of Ms Eden did not address the purpose of creation of the report at all. It spoke of the purpose of creation of the letters and of the file note. The second point is that his Honour identifies in paragraph [69] one of the two sources of objective evidence to support the conclusion that the report was prepared for the purpose of use under section 20(3) where his Honour says:

It was expressly stated in the letter from the State’s solicitors dated 23 January 2007 that the report was provided, pursuant to s 20 of the PIPA, as the basis of the offer made by the State in that letter.

CRENNAN J:   I think that is the letter I was thinking about earlier.

MR COUPER:   Yes, with respect, we think it is, your Honour.  The other source of evidence is a matter referred to in our summary of argument at paragraph 3(b) at page 71.  It was a letter dated 22 September 2006 which formed part of the record below in which the solicitors for the applicant wrote to the respondent solicitors indicating the expert’s report which was to be obtained “provide a meaningful liability response in accordance with our statutory obligations under PIPA”.

We have caused there to be provided to the Court Registry yesterday, belatedly, and we apologise, that letter if the Court wishes to see its content. The substance of it is identification and the purpose of Professor MacLennan’s report was to enable the response to the section 20 to be given. So there are two pieces of objective evidence in correspondence from the applicant’s solicitors saying that this is why we have commissioned this report.

HEYDON J:   Well, the evidence points in different directions.  It is usual to thrash it out with any live witness who happens to have been so ill‑advised as to swear an affidavit about it.

MR COUPER:   Your Honour, in our submission, that would have been an ordinary course but it is not fatal to the course which the Court of Appeal took. The court was entitled to say, in our submission, dealing with the report itself, it was plainly commissioned for the purpose of being used under section 20(3). Then his Honour Justice Keane moves the legal question, if that was its purpose, could its creation attract legal professional privilege? In our respectful submission, he correctly answered that question, no, identifying the purpose of section 20 is to avoid litigation. One cannot have, on the one hand, a report prepared for that purpose which also retains the dominant purpose of being used in litigation.

So having identified the purpose for use in section 20 and the consequence that the report necessarily would not attract privilege in those circumstances, the conclusion which one arrives at, in our submission, without needing to cross‑examine the witnesses, that if she held the view that the instructions were for a different purpose, she was mistaken. As your Honour Justice Crennan put it, in our respectful submission correctly, that mistake flowed from a misunderstanding of the effect of section 20 and the preparation of a report for its purpose.

KIRBY J:   Can I ask you, is the issue of waiver still in play or can we put that entirely to one side or would you filing a notice of contention if special leave were granted?

MR COUPER:   If leave were granted, we will file a notice of contention.  We do not intend to address waiver today, if your Honour pleases.

KIRBY J:   Can you tell me about the sequence of events of how Professor MacLennan came into the matter?  Is that revealed in the facts?

MR COUPER:   It is.

KIRBY J:   In short, was he an expert for the State’s camp in fighting off your claim or was he a person who was brought in to try and sort out what actually happened in the particular case in the hospital?

MR COUPER: Your Honour, we do not have the letters of instruction, we do not have the content of the file note, the evidence is therefore not extensive on that point. All we have is the letters which were just referred indicating that the purpose of this particular report of Professor MacLennan was for it to be given to the respondent under section 20(3).

KIRBY J:   Can you help me with the textual point that Mr Solicitor makes on section 30(2) that whereas elsewhere in the PIPA Act there is a reference to medical reports and other material?  In section 30(2) it just says

investigative reports, medical reports and reports relevant to the claimant’s rehabilitation –

Now, is there a significance in the juxtaposition of the other provisions of the statute which refer to other material and that section which does not?

MR COUPER:   We accept that subsection (2), by referring to the courts only, does not comprehend a partial waiver of privilege for documents other than reports but, in our submission, that is to ask the wrong question.  The first question is to ask whether the documents attract a legal professional privilege in the first place.  In our submission, the approach that his Honour Justice Keane took was the correct one.  Having determined that the report which was commissioned was not privileged, he then posed the question, can the letters which commissioned it and the ancillary conversation involved in its commission create privilege?  In our respectful submission, he arrived correctly at the answer no.

HEYDON J:   But why was that answer correct?

MR COUPER:   Your Honour, for the reasons that his Honour gives at paragraph [80] at page 46.

HEYDON J:   That is really paragraph [81] is it not?  He says there is an anomaly, “distinctly anomalous”, he says.

MR COUPER:   In our submission, the starting point is paragraph [80], the “privilege attaches to communications”.  The communications we are speaking of are the letters of instructions or the verbal communications from solicitor to Professor MacLennan.  In our submission, it is right to say, as his Honour says, that if those communications are for the purpose of obtaining a non‑privileged report, there is a document which has a purpose divorced from use in litigation, it has a purpose of being given to the other side, then the communications we have said about that process are not themselves privileged because they are not directed towards obtaining privileged material.

KIRBY J:   If Professor MacLennan is the qualified expert for the present applicant and if the only way he can be qualified is by the solicitor for the State giving him a backgrounder and information on the basis which he can express his opinion on their liability or non‑liability and if that is all connected with the fighting off of your case in the courts, why is not that for the dominant purpose of getting a report for use in the litigation?

MR COUPER:   The point at which the proposition breaks down, with respect, is the point at which it said that is all for the purpose of fighting off our case in the courts.  This judgment does not advance the broad proposition, in our submission, that whenever a notice of claim is given, any report obtained form an expert is not privileged, it starts with the necessary factual starting point.  This particular report was obtained for the purpose of it being given in toto expressly to the other side.  From that starting point his Honour Justice Keane reaches the conclusion that that is its purpose that the communications that led to its existence are not themselves privileged.

One can see, with respect, that his Honour is not casting it as widely as our learned friend the solicitor suggests in the passage at paragraph [83] at the foot of page 46 over to page 47 where his Honour is discussing why it is that this decision might not be as broad reaching as some might think.  His Honour says:

Secondly, and more importantly perhaps, reports which are obtained for the dominant purpose of enabling a respondent to a claim to take legal advice on the claim will be privileged: such reports are outside the scope of s 20(3) –

and so forth.  His Honour is drawing the distinction between reports which are privileged because the purpose of their creation was a privileged one and reports are not based upon the question of purpose.

HEYDON J:   If Professor MacLennan had been asked to give an opinion and provided an opinion before any claim was actually made on behalf of the plaintiff, you would agree, would you, that they were privileged at that point, both the file note, as it were, and the letters and the report?

MR COUPER:   Yes, your Honour.

HEYDON J:   On that approach, presumably when the report is handed over for section 20 (3) purposes, it loses it privilege if only because it is waived but the letters would remain privileged, would they not?

MR COUPER:   If one is postulating a report which was privileged and then privilege is waived in the circumstances your Honour speaks of, yes, the letters would remain privileged and his Honour’s reasons do not suggest differently.

HEYDON J:   Do we not get another anomaly, or at least a different type of anomaly?  It seems to turn on the timing question.

MR COUPER:   Well, in our submission, it turns rather on the purpose questions.  The purpose in your Honour’s hypothesis, with respect, is a purpose which attracts privilege, presumably advice.

HEYDON J:   But why can you not have both purposes?  Why cannot the State view Professor MacLennan as someone who might useful in defending the actual case, if one comes along, as well as someone who might be useful to try and produce a settlement before the case goes on?

KIRBY J:   Well, obviously you can have both purposes but the law requires, if you are claiming legal professional privilege, for the claimant to establish that the dominant purpose is the purpose of getting legal advice with a view to litigation.

MR COUPER: We respectfully adopt what your Honour says and we submit that to characterise this judgment as casting aside legal professional privilege, and if a notice of claim is given, is to misunderstand the judgment. It turns upon the finding of fact that the purpose of commissioning this report was to be given to the respondent, the section 20(3), and everything else flows from that and the passage at page 46 and 47 to which referred indicates his Honour was not seeking to cast the net as widely as the applicant would have it. With respect to the question of unfairness or natural justice, the question is, in our submission ‑ ‑ ‑

HEYDON J:   Can Mr Harper cast any light on whether this anomaly that Justice Keane refers to in paragraph [81] was raised in argument?

MR COUPER:   We can only take it this way is that Mr Harper cannot recall it specifically being raised in argument.  We do not state positively in those terms it was raised in argument.  In our submission, that is not ‑ ‑ ‑

KIRBY J:   There would be an injustice to the State if a solicitor for the State says “I swear that it was prepared for the dominant purpose”.  You do not object to that as being conclusory or a statement of law as distinct from fact, you do not cross‑examine that deponent on the point to suggest that it was not the dominant purpose but it was prepared for advising the State on what actually happened and you do not put on any evidence to rebut it.  If the Court then in the face of that says this was not the dominant purpose or we do not accept that it was the dominant purpose on the facts, then that would be an injustice.  But, as I understand it, what actually happened was Justice Keane did not deal with it that way on the facts.  He said forget the facts, I accept that that was the genuine view of the solicitor but the law requires that it is subsumed into the purpose of the report which it, as it were, is underpinning and sustaining that, therefore, as a matter of law, whatever the opinion of the solicitor, it was not for the dominant purpose.

MR COUPER:   In our respectful submission, in essence, what your Honour says is correct.  Having found, based upon the evidence we have spoken of, that the report was commissioned for the purpose of the section, then it was a proposition of law which led to the view that whatever the solicitor thought was the purpose of the ‑ ‑ ‑

KIRBY J:   That is either right or wrong in law and that depends on a construction of the Act and a construction of the Act to achieve its purpose having regard to its text, its context, its purpose, its objects.

MR COUPER:   Yes, your Honour, and we add ‑ ‑ ‑

KIRBY J:   We are told that the ACT has the same legislation.  It does not seem to have spread far and wide.

MR COUPER:   No, your Honour, as one can see, the legislation may well remain a unique creature, but, in our submission, it has been correctly construed in this case on the facts as they appeared.  The one other thing that we would wish to say as matter of completeness is it is not said even now what evidence might have been given by Ms Eden which could have made a difference to the notion that the report ‑ ‑ ‑

KIRBY J:   It is a tremendous revolution to what used to be the case which was essentially that you had the chance in your camp to speak with absolute candour to your experts and you are not going to lose that candour by operation of an Act like this.  Now, the real question is, was this a bridge too far?  Did it go a little further than the statute with its juxtaposition contemplate or not?

MR COUPER:   In our submission, looking at the statute in terms of its policies, the aim of the statute is cards on the table.  Old school litigators might regard that as being an unsatisfactory approach, but the aim is, as section 21 tells us, that parties be informed so that they ‑ ‑ ‑

KIRBY J:   Presumably the boot is on both feet here.  If you deal with your experts, is your material producible to the other side?

MR COUPER:   Yes, your Honour, and the boot is very much expressly on the foot of the claimant in any event.  Section 22(2) of the Act, for example, expressly requires:

If the claim is a health care claim, the claimant must, if reasonably requested by a respondent, give the respondent a single report from a doctor with appropriate qualifications and experience in the relevant field that includes an opinion regarding--

(a)the nature and extent of the personal injury alleged to have been suffered; and

(b)the causal relationship between the incident and the personal injury alleged to have arisen from the incident.

So, upon request, the claimant must provide a report dealing with the extent of the injury and causation.  That sort of thing has fallen to the previously named regimes.  It is an example, in our submission, how the cards are requited on the table on both sides, the aim being to reach a resolution without litigation.

CRENNAN J:   One simple of way of putting it, I suppose, is if a report is prepared for statutory purposes under this Act, under the types of provisions we have been considering it, the dominant purpose is one of disclosure.

MR COUPER:   Yes, your Honour.  In our submission, that is ‑ ‑ ‑

CRENNAN J:   As distinct from very different considerations in the different setting of, say, common law in relation to the privilege.

MR COUPER:   In our submission, that is precisely so, with respect.  Those are our submissions, if the Court ‑ ‑ ‑

KIRBY J:   Just before you sit down, what if the purpose of this accident, catastrophe, having occurred, the State wants to quickly get the top gynaecologist in the State to tell it what actually happened and to advise it so that it would not have repetition of these sorts of incidents?  Now, on your theory, is that then forever sucked into the purposes of this legislation

and not available to have candid discussion between the lawyer and the professor that is available only to the State for the purposes that are distinct from the litigation?

MR COUPER:   We do not intend to be evasive, your Honour, but it is a question of fact in each case.  If this incident happens and the State is rightly concerned about it and commissions an expert to say how did this come about before there is a claim and the purpose is not to proceed under the PIPA Act at the time, if the purpose of commissioning the report is to generally advise the State how to go about improving healthcare, then it will not ever be privileged.  If the purpose of is to anticipate litigation – in a different context, if there were an accident which caused a number of injuries and a report is obtained with respect to the cause of the accident in relation to one injury at a time when it is privileged, a claim by a different person is then commenced and that report is relevant to it, it is clothed with legal professional privilege and section 30 has work to do, but that is because the purpose of commissioning that report is different to the purpose which was the purpose here, in our submission.

KIRBY J:   Yes, thank you for your assistance, Mr Couper.  Yes, Solicitor?

MR SOFRONOFF:   Your Honours, just briefly.  Sections 31 and 32 assume that some medical reports might be prepared for the dominant purpose of litigation and they must be disclosed in any event.  Consequently, it cannot be the case that any medical report which is prepared, to use a broad term, in connection with a claim cannot be the subject of legal professional privilege, yet that appears to be what the Court of Appeal concluded.  As to this report, your Honours know that Ms Eden swore in terms that she did.  May I, if the Court permits it, read into the record one sentence of Professor MacLennan’s report which was in evidence below and two sentences of Ms Eden’s letter to which your Honour Justice Crennan made reference?

KIRBY J:   What, you are going to waive the privilege and read part of what ‑ ‑ ‑

MR SOFRONOFF:   Not at all, your Honour, these are documents that were below.

KIRBY J:   These have gone in?

MR SOFRONOFF:   This has gone in.  The report which was provided to the other side said in its second sentence:

I have read the uniform civil procedure rules regarding expert witness code of conduct for the Supreme Court of Queensland.

Now, for what is it worth, what weight one gives it, that is consistent with Ms Eden’s affidavit that ‑ ‑ ‑

KIRBY J:   But it is also consistent with what Justice Crennan was saying, that this is consistent with this report being prepared for the purposes of this litigation upon which descends this rather unusual and new regime in this State.

MR SOFRONOFF: That raises an important question, your Honour, if indeed a report is prepared with litigation in mind such that the expert has in mind the rules that only apply to litigation, our Supreme Court Rules, whether privilege is abrogated by force of section 20.

KIRBY J:   You said you were going to read something from the letter?

MR SOFRONOFF: The other matter is that when the report was delivered to the other side, your Honours will recall that section 20, among other things, requires a respondent to inform itself and, secondly, to respond as to whether liability is admitted or denied. Ms Eden wrote:

In accordance with section 20 of the Act, our client gives notice that liability to the claimant in respect to the facts and circumstances particularised in the form 2 notice of claim is denied.

That is the reference to section 20 of the Act. Then she said:

The basis for the denial of liability to your claimant is detailed in the enclosed report of Professor Alistair MacLennan, obstetrician and gynaecologist, dated 2 January 2007.

So, none of that is inconsistent with her oath that the report – so, in those circumstances, in our respectful submission, to say, as Justice Keane did, at paragraph [67]:

In such a context, it would be difficult, to say no more, to suggest that a report, obtained by a recipient of a claim for use in a procedure intended by the legislature to determine whether the person on whom the claim is made should accept or reject the claim as justified, was commissioned for the dominant purpose of litigation.

One can accept that that is so, but it does not add anything to one’s knowledge because, of course, if it is prepared for that dominant purpose, of course it is not privileged.  The question in issue here is, it having been sworn that the report was prepared for a privileged purpose, did the statute have the effect that not withstanding that it was prepared for that purpose,

there was no privilege and no privilege in the associated documents, which is what we are fighting about?  We admit the report, statutes express about the report, we are fighting about the file note, which is a solicitor’s file note, it is not in the possession of the client, it is in the possession of the solicitor, it belongs to the solicitor, and is not countenanced by the exception in section 30(2) because the words “other material” is ‑ ‑ ‑

KIRBY J:   Are the letters still in play?

MR SOFRONOFF:   They are in dispute too, your Honour.  Those are our submissions, your Honours.

KIRBY J:   Yes, thank you, Solicitor.  The Court will adjourn briefly to consider the course it will take.

MR SOFRONOFF:   Mr O’Sullivan reminds me that Ms Eden also swore that the letters of instruction were prepared for the dominant purpose of anticipating litigation.

KIRBY J:   Yes.  We will adjourn briefly.

AT 11.39 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.47 AM:

KIRBY J:   What I am now going to say is said on behalf of Justice Crennan and myself.

In the Supreme Court of Queensland Justice Atkinson ordered the State of Queensland (the applicant) to provide Mr Stephen Watkins as guardian of his infant son, Harrison Watkins (the respondent), documents which the applicant claims are immune from disclosure on the ground of legal professional privilege.  The claim for such privilege is contested and falls to be decided in the context of statutory provisions operating in Queensland by virtue of the Personal Injuries Proceedings Act 2002 (Qld) in the respondent’s claim for damages from the applicant for medical negligence.

By section 20 of the Personal Injuries Proceedings Act obligations are imposed on the applicant to provide copies of medical reports to the respondent.  One such report of Professor MacLennan referred to three letters received from the applicant’s solicitors.  Other evidence revealed a lengthy telephone conversation between the report writer and the applicant’s solicitor.

Questions have arisen before the primary judge and the Court of Appeal of Queensland about whether the letters and the memoranda of the telephone conversation were within the statutory obligation of disclosure imposed by the Act; whether legal professional privilege subsists in respect of them; and whether any such privilege has been waived in the circumstances, for example, by the provision of the medical report or other material referring to them.

The applicant also raises questions about procedural fairness having regard to the course which the proceedings took.  Whilst the points raised by the applicant are arguable, and whilst we do not necessarily endorse all of the reasoning of the Court of Appeal, we are not convinced that there are reasonable prospects of success were special leave granted.

Interpretation of the Personal Injuries Proceedings Act is primarily a question for the Queensland courts as the Act is distinctive with the legislation of other jurisdictions of Australia, except possibly that of the Australian Capital Territory, being relevantly different.  No important new legal principle or doctrine is raised by the application.  Nor are we convinced by the evidence on the record that an injustice has occurred.

Accordingly, special leave should be refused with costs.

HEYDON J:   I dissent.  I would favour the grant of special leave.

KIRBY J:   The order of the Court, by a majority, is that the application is dismissed.  The applicant must pay the respondent’s costs.

AT 11.50 AM THE MATTER WAS CONCLUDED