Stekovic v Australian Capital Territory - [2015] ACTSC 385

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Stekovic v Australian Capital Territory
Citation:	[2015] ACTSC 385
Hearing Date:	20 November 2015
DecisionDate:	11 December 2015
Before:	Mossop AsJ
Decision:	See [54]
Catchwords:	PRACTICE AND PROCEDURE – Privilege – Waiver of privilege – issue waiver – disclosure waiver – parties relying on affidavits in making or opposing an application for leave to amend statement of claim – consideration of inconsistency between maintenance of claim of privilege over documents and conduct of party claiming privilege in putting contents of those documents in issue in particular circumstances – orders for specific disclosure made
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) Evidence Act 2011 (ACT) ss 119, 122, 131A
Cases Cited:	Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Australian Securities and Investments Commission v Park Trent Properties Group Pty Ltd [2015] NSWSC 342 Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 Fenwick v Wambo Coal Pty Ltd (No 2) [2011] NSWSC 353 Mann v Carnell (1999) 201 CLR 1 Paragon Finance Plc v Freshfields [1999] 1 WLR 1183
Parties:	Nikola Stekovic (Plaintiff) Australian Capital Territory (Defendant)
Representation:	Counsel Mr S Beckett (Plaintiff) Mr D Higgs SC and Ms V Thomas (Defendant)
Solicitors Maurice Blackburn Lawyers (Plaintiff) ACT Government Solicitor (Defendant)
File Number:	SC 203 of 2013

Application

The plaintiff has made an application for leave to amend his pleadings. For the purposes of that application and in advance of the hearing of that application I am asked by both the plaintiff and the defendant to compel production by the other of certain documents which are, prima facie, privileged. The issue that I need to determine is whether or not that privilege has been waived.

Section 131A of the Evidence Act 2011 (ACT) (Evidence Act) requires that the issue be determined in accordance with the provisions of that Act. Therefore it is necessary to apply ss 119 and 122 of the Evidence Act in order to determine whether or not privilege exists and has been waived. The relevant parts of ss 119 and 122 are as follows:

119 Litigation
Evidence must not be presented if, on objection by a client, the court finds that presenting the evidence would result in disclosure of—
(a)a confidential communication between the client and someone else, or
between a lawyer acting for the client and someone else, 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.

122 Loss of client legal privilege—consent and related matters
...

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] ACTSC 385
Decision Date: 11 December 2015

CaseChat Overview and Summary

In the case of Stekovic v Australian Capital Territory, the plaintiff, a child born with permanent brain injuries, sought to amend their medical negligence claim against the defendant, the Australian Capital Territory, which operates the hospital where the plaintiff was born. The plaintiff sought leave to amend their statement of claim to include additional allegations and expert evidence regarding the timing and effects of the brain injury. The defendant opposed the amendment, and a dispute arose over whether certain documents, which the plaintiff claimed were privileged, should be disclosed due to their relevance to the amendment application. This case required the court to determine whether the privilege claimed over these documents had been waived and whether disclosure should be ordered.

The central legal issue in this case was whether the plaintiff had waived the privilege over certain documents by putting the contents of those documents in issue in their affidavits filed in support of or in opposition to the amendment application. The court needed to consider whether the maintenance of the claim of privilege over these documents was inconsistent with the plaintiff's conduct in opposing the defendant's application for specific disclosure of these documents. The court also had to decide whether the public interest in the fair administration of justice required the disclosure of these documents despite the claim of privilege.

The court found that the plaintiff had waived the privilege over the documents in question by putting the contents of those documents in issue. The court noted that the plaintiff had deposed to the contents of these documents in their affidavits, which was inconsistent with maintaining the privilege over them. The court concluded that the public interest in the fair administration of justice outweighed any claim of privilege, and ordered specific disclosure of the identified categories of documents. The court found that the documents were relevant to the amendment application and necessary for a fair determination of the issues in the case.

The court ordered that the plaintiff disclose to the defendant certain categories of documents, including those that the plaintiff had deposed to in their affidavits, to ensure a fair and just resolution of the amendment application and the underlying proceedings. The court also made orders to facilitate the timely exchange of these documents and to ensure that the amendment application could proceed without further delay. The orders reflected the court's determination that the privilege over the documents had been waived and that the public interest required their disclosure.

Orders

Orders of the court

See [54]

Background

Background to the litigation

Background to the application: The proceedings are a medical negligence case relating to the birth of the plaintiff. The proceedings were commenced by originating claim filed 3 June 2013. By application in proceeding filed 14 September 2015 the plaintiff has sought leave to file and serve an amended statement of claim. That application is opposed by the defendant. The application was due to be heard by me on 20 November 2015 but when the matter came before me some days earlier it became apparent that the application could not proceed on that date. The parties each sought production from the other of documents which, although otherwise privileged, were said to no longer be privileged because of matters deposed to in affidavits filed for the purposes of the amendment application. It was apparent that this issue needed to be resolved before the amendment application could be heard. While the parties had applied for leave to issue subpoenas, it appeared to me to be equally effective to make an order requiring the disclosure of identified categories of documents without the need for subpoenas. I therefore made directions so as to permit an argument, as to whether or not such orders should be made, to occur on the day that had otherwise been set aside for the hearing of the amendment application. For the purposes of that argument the plaintiff read the affidavits of Elizabeth Brookes dated 11 September 2015 and 13 November 2015. The defendant read the affidavit of Russell Bayliss dated 4 November 2015. The proceedings: The plaintiff was born on 25 March 2009 at the Canberra Hospital. The plaintiff alleges that negligent acts and omissions of the defendant caused the plaintiff permanent brain injuries. He is currently six years old. Ms Brookes deposed in her affidavit dated 11 September 2015 that the damage arose from a haemorrhage in the posterior fossa of the brain around the time of the plaintiff’s birth. She identified that there are difficult questions raised by expert evidence concerning the timing of the haemorrhage, the after-effects of the haemorrhage, the onset and effect of hydrocephalus from the haemorrhage and the role of multiple operations and infections that the plaintiff has experienced in relation to his overall brain damage, as well as whether any or all of these things could have been avoided by the exercise of reasonable care and skill by staff at the Canberra Hospital. On 22 December 2009 a Personal Injury Claim Notification (PICN) was served on the Canberra Hospital for the purposes of the Civil Law (Wrongs) Act 2002 (ACT). On 3 June 2013 proceedings were commenced by originating claim. The originating claim and the statement of claim were served on the Australian Capital Territory on 29 July 2013. The statement of claim focused on the conduct of the staff of the defendant immediately following the plaintiff’s birth. The claim pleads: The allegations of negligence relate to what happened after birth. They are usefully summarised in the affidavit dated 11 September 2015 of Ms Brookes as follows (at [14]):

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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