Taranto v Victorian WorkCover Authority (Ruling)
[2024] VCC 1062
•19 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-04734
| RICARDO PETER TARANTO | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | JUDICIAL REGISTRAR J B GURRY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 June 2024 | |
DATE OF RULING: | 19 July 2024 | |
CASE MAY BE CITED AS: | Taranto v Victorian WorkCover Authority (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1062 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Discovery – objection to inspection of material adduced on grounds that material contained reference to privileged communication between plaintiff and his legal practitioners
Legislation Cited: County Court Civil Procedure Rules 2018, o42A; Evidence Act 2008, s122
Cases Cited:Mann v Carnell (1999) 201 CLR 1; Nielsen v Schiavello Manufacturing of Australia Pty Ltd (Ruling) [2016] VCC 1096; Royal Women’s Hospital v Medical Practitioners Board of Victoria [2005] VSC 225; Hunter v Mann [1974] QB 767; A v Hayden (1984) 156 CLR 532; Octagon Inc v Hewitt and Anor (No 2) [2011] VSC 373
Ruling: Order that identified entries be redacted by plaintiff solicitors and balance of material produced under subpoena be made available for defendant to inspect and copy. Parties to provide minutes of proposed consent orders on costs within 14 days.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L B R Allan | Ryan Carlisle Thomas |
| For the Defendant | Mr L Howe | Russell Kennedy |
HIS HONOUR:
1On 8 November 2022, the plaintiff issued an Originating Motion seeking an order pursuant to s328(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 for leave to commence proceedings for damages in respect of injuries sustained in the course of his employment with Chobani Australia Pty Ltd.
2The Court made Orders on 12 March 2024 listing the proceeding for hearing on 5 August 2024, together with a related proceeding, proceeding number CI‑23‑06649.
3The parties were granted leave to issue a subpoena under Order 42A of the County Court Civil Procedure Rules 2018 (“the Rules”) by 6 May 2024.
4On 29 April 2024, the defendant issued an Order 42A subpoena addressed to Durrant Medical Clinic. The Schedule requested the medical file relating to the plaintiff.
5On 14 May 2024, the plaintiff lodged an objection to the inspection of any material adduced pursuant to the subpoena by the defendant. The grounds of the objection were that the material contained reference to privileged communication between the plaintiff and his legal practitioners.
6An attempt was made between the parties to resolve the issue, with any privileged material being redacted; however, those attempts were unsuccessful, and the objection hearing came on before me on 24 June 2024.
7The objection is therefore confined to the defendant having leave to inspect and copy the material which may be covered by legal privilege.
8The plaintiff solicitors have inspected the file produced. It was agreed between the parties that I should inspect the material identified as privileged material, which I have now inspected.
9Section 122 of the Evidence Act 2008 deals with loss of client legal privilege. The relevant sections of that Act are:
(a) Section 122(2), which says:
“Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.”
(b) Section 122(3), which says:
“Without limiting subsection (2), a client or party is taken to have so acted if—
(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.”
(c) Section 122(5), which says:
“A client … is not taken to have acted in a manner inconsistent with the client … objecting to the adducing of the evidence merely because—
(a) the substance of the evidence has been disclosed—
(i) in the course of making a confidential communication or preparing a confidential document; or
(ii) as a result of duress or deception; or
(iii) under compulsion of law;
… .”
10I was informed the plaintiff, when attending the Durrant Medical Clinic, has made, on a number of occasions, statements to his treating doctor about his case including reference to legal advice from his solicitors. The plaintiff’s submissions are that the reporting of these matters which formed the basis of clinical entries were not done in a manner whereby the plaintiff was acting inconsistently with waiving privilege. Rather, the information was provided in a confidential communication by the plaintiff to his general practitioner.
11The defendant’s position is that the reporting of the legal advice is inconsistent with the maintenance of legal privilege. Further, the fact the plaintiff had, on repeated occasions, reported matters to his general practitioner, warrants an inference of implied waiver.
12Section 122(2) reflects the common law test for implied waiver which had been articulated by the High Court in Mann v Carnell.[1] It was stated by Gleeson CJ, Gaudron, Gummow and Callinan JJ that:
“… What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.”[2]
[1](1999) 201 CLR 1
[2]Ibid at 13, paragraph [29]
13The conduct and position of the person who is said to have waived privilege should be looked at by the Court to see whether that person had “approbated” so as to prevent him or her from “reprobating”.
14The plaintiff relies upon a decision by his Honour Judge Smith of this Court in Nielsen v Schiavello Manufacturing of Australia Pty Ltd (Ruling).[3] In that matter, a letter of advice was provided by the plaintiff’s wife to the plaintiff’s general practitioner, Dr Baro. Dr Baro referred to the advice and attached it to a supplementary medical report. The issue arose as to whether the report and references to it should be removed before service of the supplementary report.
[3][2016] VCC 1096 (“Nielsen”)
15Judge Smith noted, at paragraph 26, that there was nothing before him to indicate whether the plaintiff understood the concept of a privileged letter and the waiver of such privilege. He said:
“… In the absence of any evidence to the contrary, I consider it unlikely that the possible waiver of privilege by handing it to Dr Baro had ever crossed the plaintiff’s mind.”[4]
[4]Ibid) at paragraph [26]
16His Honour noted, at paragraph 20, that if the letter of advice or substance of it was knowingly and voluntarily provided by the plaintiff to Dr Baro, then, unless s122(5) applied, the plaintiff would be deemed to have acted in a way that was inconsistent with him objecting to the adducing of the evidence and the letter of advice.
17His Honour found that the disclosure of the letter of advice was in the course of a confidential communication between the plaintiff and his general practitioner. He noted that a communication between the plaintiff and treating doctor has often been referred to as confidential. At paragraph 22, he referred to what was said by Gillard J in Royal Women’s Hospital v Medical Practitioners Board of Victoria,[5] when he said:
“’There are a number of well established principles of law concerning the doctor-patient relationship. …
• …
•The relationship of doctor-patient is a confidential one and equity precludes a party to the relationship from disclosing any information without the consent of the other party. This is the general rule and courts may grant an injunction to restrain the disclosure of the information.
• The law has recognised a need to break a confidence in a doctor-patient relationship in the interests of the public and accordingly the general rule applies ‘save in very exceptional circumstances’.’”[6]
[5][2005] VSC 225
[6]Nielsen (supra) at paragraph [22]
18Gillard J, there, was referring to what was said in Hunter v Mann[7] and A v Hayden.[8]
[7][1974] QB 767 at 772
[8](1984) 156 CLR 532
19It is clear from the identified references the plaintiff has, on a number of occasions, openly discussed with his general practitioner, matters pertaining to his case and what had been said by his lawyers. That reinforces to me that the plaintiff would have had little understanding or comprehension of legal privilege. It further reinforces to me by the openness in which he communicated that he was doing so in a confidential manner.
20“Confidential communication” is defined in s117:
“confidential communication means a communication made in such circumstances that, when it was made—
(a) the person who made it; or
(b) the person to whom it was made—
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.”
21The plaintiff’s solicitors have identified eight references in the material adduced. Having considered these, I am satisfied that the following entries should be redacted. Entries dated:
(a) 7 February 2022;
(b) 28 April 2022;
(c) 9 June 2022 (save for the references to the plaintiff’s cousin’s funeral);
(d) 12 July 2022;
(e) 4 April 2023;
(f) 25 March 2024;
(g) 10 April 2024; and
(h) 29 April 2024.
22In deciding this, I have considered what Judge Smith said at paragraphs 26-30 in his Ruling in Nielsen and adopt his reasoning. The entries have clearly been made by the plaintiff on a confidential basis to the general practitioner. It not the general practitioner’s privilege to waive. The general practitioner was not under a duty to disclose this information without express instructions from the plaintiff, which were not given.
23The general practitioner, however, has recorded the entries based on what the plaintiff has said and then, upon request under subpoena, produced the material. It is well established that if a party or addressee objects to material which is sought to be redacted and the parties cannot agree, it is for the court to decide. Here, I refer to what was said by Dixon J in Octagon Inc v Hewitt and Anor (No 2)[9] at paragraph 32:
“The principles applicable to the redaction of documents produced for inspection were recently surveyed by Kaye J in Gunns Ltd and Ors v Alexander Marr and Ors. These principles were not in issue before me. In summary, the discovering party is prima facie required to produce for inspection the whole of the document being discovered by it, even where parts of the document are irrelevant. The practice of sealing up or masking irrelevant parts of the document is long established, particularly where the discovering party has a legitimate claim to confidentiality in the irrelevant part of the document. Ultimately, the onus to establish an appropriate basis for redaction rests with the party resisting production of the whole of the document. Where redactions are in dispute it is for the court to determine, on the material before it, whether that party has a right to do so. In making that determination, the court will focus on ensuring the attainment of justice between the parties. That the rules of court are designed to serve and enhance the ends of justice, and to facilitate the resolution and determination of disputes between parties, has recently been emphasised by the provisions of the Civil Procedure Act 2010 (Vic).”
[9] [2011] VSC 373
24I am satisfied the actions of the plaintiff in telling the general practitioner what was contained in the entries was not acting in a way that was inconsistent with him objecting to the adducing of the evidence of it.
25I will therefore order that identified entries be redacted by the plaintiff solicitors and the balance of the material produced under subpoena be made available for the defendant to inspect and copy.
26I did not receive submissions on costs and wish to minimise costs to the parties so therefore I call upon the parties, within 14 days of delivery of this Ruling, to provide minutes of proposed consent orders if agreement is reached. If not, provide any written submissions on the appropriate order.
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