Thompson v Rosen

[2020] NSWSC 481

Supreme Court

New South Wales

Medium Neutral Citation:	Thompson v Rosen [2020] NSWSC 481
Hearing dates:	On the papers
Date of orders:	04 May 2020
Decision date:	04 May 2020
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1)    Grant the second defendant access to the documents referred to or described in paragraphs 10(c), (e) and (h) and 12(b) of the affidavit of Rebecca Jancauskas affirmed 14 October 2019.  (2)    Order that the costs of and incidental to the second defendant’s notice of motion filed on 4 July 2019 be the costs in the cause.
Catchwords:	CIVIL PROCEDURE – subpoenas – whether lawyer/client privilege applies to documents – whether second defendant entitled to costs of his motion for access and inspection – limited access granted
Legislation Cited:	Limitation Act 1969 (NSW) Uniform Civil Procedure Rules
Cases Cited:	AWB Ltd v Cole (2006) 152 FCR 382 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; [1997] HCA 3 Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 Grant v Downs (1976) 135 CLR 674; (1976) 11 ALR 577 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 Thompson v Rosen [2019] NSWSC 1258
Category:	Procedural and other rulings
Parties:	Gai Thompson (Plaintiff) Dr David Rosen (First Defendant) Associate Professor Alan Lam (Second Defendant)
Representation:	Counsel: E Romaniuk SC with S Roulstone (Plaintiff) R Sergi (First and Second Defendants) B Hancock (Shine Lawyers amicus)   Solicitors: Martin Street Lawyers (Plaintiff) Avant Law Pty Ltd (First and Second Defendants)
File Number(s):	2018/335578
Publication restriction:	Nil

Judgment

1. HIS HONOUR: I delivered reasons for judgment on 23 September 2019 concerning a claim for privilege asserted by Ms Thompson over documents produced to the Court by Shine Lawyers Pty Ltd: see Thompson v Rosen [2019] NSWSC 1258. In accordance with my request, I have now been provided with detailed submissions from the parties dealing with that issue.

2. It will be recalled that the defendants in these proceedings served a subpoena on Shine Lawyers requiring production of that firm’s entire file held in relation to Ms Thompson. The documents produced to the Court over which the claim for privilege is asserted are contained in Packet S-9. By his motion filed on 4 July 2019, the second defendant seeks a determination of whether or not the privilege claim is good.

Ms Thompson’s submissions

3. Ms Thompson’s submissions were provided by Mr Hancock of counsel for Shine Lawyers. They were to the following effect.

4. Production and inspection of a document may be resisted if the inspection of the document “would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings”: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 at [9]. The relevant question is whether the dominant purpose of the communication evidenced by the document is privileged. The document will also be privileged if the dominant purpose of creating it was the preparation or conduct of existing or contemplated legal proceedings: Grant v Downs (1976) 135 CLR 674; (1976) 11 ALR 577 at 677.

5. The dominant purpose of a communication is a prevailing or paramount purpose, predominant over other purposes: AWB Ltd v Cole (2006) 152 FCR 382 at [105]. The purpose for which the communication is made is a question of fact to be determined objectively from the nature and context of the communication: Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266 at [30].

6. The privilege will cover both privileged communications as well as documents from which the nature and content of a legally privileged communication might be inferred: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; [1997] HCA 3 at 569, Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 at [20].

7. The Court retains a discretion to inspect the documents for the purposes of determining any claim for privilege: see UCPR 1.8(a); Grant v Downs at 689.

8. None of these propositions is controversial.

9. Two employees of Shine Lawyers affirmed affidavits in support of the claim for privilege. The affidavit of Annette Maree O’Hara affirmed on 13 May 2019 is relevantly extracted in my earlier reasons for judgment. The relevant material in the affidavit of Rebecca Lee Jancauskas affirmed 14 October 2019 is as follows:

“Medical Negligence Claim documents

9.   Packet S-9 includes fifty-eight (58) Medical Negligence Claim documents. Some of these documents include attachments. A list of these documents is annexed hereto and marked ‘RJ1’.

10.   The documents in Packet S-9 fall into the following categories:

(a)   Letters from Shine Lawyers to Ms Thompson confirming instructions regarding her potential claim, providing updates on the progress of her potential claim and detailing record requests sent for the purpose of her potential claim;

(b)   Letters from Shine Lawyers to Ms Thompson providing advice on the prospects of success of her potential claim;

(c)   Two cover pages for folders containing reports and records obtained by Shine Lawyers for the purpose of providing advice to Ms Thompson and for use in any proceeding;

(d)   File opening and information sheets completed by Shine Lawyers’ employees recording instructions provided by Ms Thompson to Shine Lawyers and other relevant information or workings for the purpose of providing advice to Ms Thompson about her potential claim;

(e)   Internal file notes detailing actions taken on Ms Thompson’s file by Shine Lawyers employees Susan Newman, Denita Weber, Melanie Quilty and Caitlin Arnold for the purpose of recording the progress of the investigation of Ms Thompson’s potential claim and recording correspondence sent and received by Shine Lawyers;

(f)   Internal emails between Shine Lawyers’ employees regarding Ms Thompson’s potential claim and the potential for the mesh class action;

(g)   Internal emails between Shine Lawyers’ employees regarding Ms Thompson’s potential claim for the purpose of providing, including emails attaching analyses of her potential claim by Shine Lawyers Ms Thompson legal advice;

(h)   Internal emails between Shine Lawyers’ employees regarding file closure; and

(i)   Internal emails and attached documents prepared by Shine Lawyers’ Accounts Department recording Work In Progress, time entries and disbursements regarding Ms Thompson’s potential claim and assessments of other Shine Lawyers’ clients.

Mesh Class Action Documents

11.   Packet S-9 also includes twenty-three (23) Mesh Class Action documents. Some of these documents include attachments. A list of the Mesh Class Action documents marked privileged is annexed hereto and marked ‘RJ2’.

12.   The documents fall into the following categories:

(a)   Emails between Ms Thompson and Shine Lawyers regarding the litigation, providing information to be used in the Mesh Class Action and Ms Thompson’s potential claim as a group member;

(b)   Letters from Shine Lawyers to Ms Thompson providing forms for obtaining information relevant for her potential claim as a group member;

(c)   Records of communications between Ms Thompson and the Respondents in the Mesh Class Action (Johnson and Johnson Medical) relevant to Ms Thompson’s potential class action claim, which had been annotated by Ms Thompson and provided to Shine Lawyers by Ms Thompson;

(d)   Internal file review, file summary and chronology including analysis of Ms Thompson’s claim as a group member of the Mesh Class Action for use in the proceedings;

(e)   Ms Thompson’s signed Mesh Class Action registration letter;

(f)   Ms Thompson’s completed Mesh Class Action questionnaires provided for the purpose of assessing Ms Thompson’s potential claim; and

(g)   Email correspondence to Ms Thompson providing advice on a specific stage of the Mesh Class Action, its importance and group member advice.”

10. Mr Hancock made the following submissions with respect to the documents in each file.

Medical negligence file

11. At paragraph [10] of her affidavit, Ms Jancauskas describes the documents in Packet S-9 that were part of the file related to Ms Thompson’s potential claim for medical negligence.

12. It is evident from the description of a number of these categories of documents that they were prepared for the dominant purpose of Shine Lawyers providing Ms Thompson with legal advice. Letters confirming instructions, providing updates and detailing requests for records are unlikely to have been prepared for any purpose other than the provision of legal advice to Ms Thompson. Similarly, letters to Ms Thompson providing advice on prospects were self-evidently prepared for the purpose of providing legal advice to her.

13. Packet S-9 includes two cover pages to folders containing medical reports and records obtained by Shine Lawyers for the purposes of providing advice to Ms Thompson and for use in any proceedings commenced in relation to her potential medical negligence claim. While it is apparent that these documents were likely created for the dominant purpose of providing legal advice or legal services to Ms Thompson, it is also unlikely that they contain or would disclose the nature and content of that advice: cf Pratt Holdings at [20]. For this reason, the documents are unlikely to be privileged.

14. Within Packet S-9 are what is described as “file opening and information sheets”. These documents were completed by employees of Shine Lawyers recording instructions provided by Ms Thompson for the purpose of providing advice to Ms Thompson about her potential medical negligence claim. The instructions were received for the dominant purpose of providing that advice. The information and file opening sheets record those instructions and were similarly created for that dominant purpose. Accordingly, these documents are privileged.

15. Packet S-9 contains internal file notes prepared by Shine Lawyers employees recording “actions taken on Ms Thompson’s file” and correspondence sent and received. These documents were created for “the purpose of recording the progress of the investigation of Ms Thompson’s potential claim”. That is, they were prepared for the purpose of enabling Shine Lawyers to provide advice to Ms Thompson, a privileged purpose. Having said this, the description of the documents does not support a finding that the documents reveal the nature of any advice given to Ms Thompson and, therefore, may not be privileged.

16. There is an email chain which manifests in multiple documents in Packet S-9 that contains emails between Shine Lawyers employees about Ms Thompson’s potential medical negligence claim and the potential for a class action, which was subsequently commenced. These documents are privileged because they record communications between Ms Thompson’s legal advisers concerning her options, including the potential medical negligence claim and the potential (at that time) class action proceedings. The dominant purpose of these emails is the provision of advice, and the contents of the emails may tend to reveal the nature of that advice.

17. There are a number of other internal emails between Shine Lawyers employees in Packet S-9 regarding Ms Thompson’s potential medical negligence claim. Shine Lawyers was retained to provide advice in relation to Ms Thompson’s potential claim. These internal emails were sent for that purpose and are privileged.

18. Packet S-9 contains internal Shine Lawyers emails concerning the closure of Ms Thompson’s file. Unless those emails contain material that would reveal the nature of legal advice given to Ms Thompson, they are unlikely to be privileged. There is no evidence to suggest that they do.

19. Packet S-9 also contains documents prepared by Shine Lawyers Accounts Department recording various matters, including time entries, for various clients including Ms Thompson. Time entries and similar documents that disclose the nature of advice are privileged: Pratt Holdings at [20]. The attachment to FS007650552 is such a document.

Class action file

20. Packet S-9 contains a number of documents relevant to the class action litigation. Given the nature of these documents, described in Ms Jancauskas’ affidavit, it may be inferred that they were created for the dominant purpose of the provision of legal services in aid of the conduct of current or anticipated proceedings. For this reason, the documents are privileged.

21. To the extent any of those documents were not created for the purposes of the conduct of the class action proceedings, it may reasonably be inferred that these communications were for the dominant purpose of Shine Lawyers providing legal advice to Ms Thompson in relation to her participation in the class action proceedings. Such documents would also be privileged.

Second defendant’s position

22. Prior to the service of Ms Jancauskas’ affidavit, the second defendant had not been aware of the existence of the separate medical negligence claim and the class action files nor of the details concerning them that have now been provided. Since receiving that affidavit, and subject to one matter referred to at [16] below, the second defendant has now revisited the terms of the orders that he seeks.

Medical negligence claim

23. Based upon the matters deposed to by Ms Jancauskas, the second defendant does not press his application in relation to the categories of documents described by her in paragraphs 10(a), (b), (d), (f), (g) or (i). However, the second defendant maintains his application to inspect the documents described in paragraphs 10(c), (e) and (h). Shine Lawyers’ submissions appear in any event to concede that the documents referred to in these categories are unlikely to be privileged.

Mesh class action

24. Based upon the matters deposed to by Ms Jancauskas, the second defendant also does not press his application in relation to the categories of documents described by her in paragraphs 12(a), (c), (d), (e), (f) or (g). The second defendant maintains his application to inspect the documents described in paragraph 12(b).

25. The second defendant maintains that the mesh class action documents identified by Shine Lawyers do not particularise the date of the documents. The second defendant submits that this should also be done.

Consideration

26. I have examined the documents referred to in paragraphs 10(c), (e) and (h) and 12(b) of Mr Jancauskas’ affidavit. In my opinion, the concessions made by Shine Lawyers are appropriate. The second defendant should have access to those documents for the purposes of inspection. Further particularisation of the documents by date is uncalled for in the circumstances.

Costs

27. The second defendant seeks costs of and incidental to his application to inspect the documents. He intends to plead that Ms Thompson’s claim is barred by the operation of the provisions of the Limitation Act 1969. He contends that the subpoena was issued for a legitimate forensic purpose. He was originally given unfettered access to the documents by order of the Registrar made in chambers on 17 July 2019 but did not exploit the order following Ms Thompson’s request that he not do so pending determination of the privilege claim.

28. The second defendant submitted that, having made a claim of privilege, Shine Lawyers failed to provide details of any basis to support it. By letters dated 27 May 2019 and 14 June 2019, the second defendant made reasonable enquiries concerning the type of privilege that was claimed and a list of documents over which it was claimed. Shine Lawyers did not provide a response to these requests until 20 June 2019, at which time the affidavit of Ms O’Hara was served. The second defendant submitted that that affidavit did not reasonably permit him to make any proper consideration of the Shine Lawyers’ privilege claim. Moreover, the second defendant proposed an alternative approach by which suitable a compromise might have been achieved, to which neither Shine Lawyers nor Ms Thompson responded.

29. Shine Lawyers’ response emphasised that the second defendant has effectively abandoned his application in relation to the majority of the documents over which privilege was asserted. That is said in this context to have been entirely unsurprising. Any deficiencies in Ms O’Hara’s affidavit should not be determinative of the question of costs. The fact that the defendants may wish to rely upon a Limitation Act defence is not germane to a contest concerning who should bear the costs of the second defendant’s motion.

30. Doing the best I can, it seems to me that the merits are equally balanced. The preferable course is to order that the costs of the motion should abide the outcome in the proceedings. Accordingly, I consider that the costs of the privilege argument should become the costs in the cause.

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Decision last updated: 05 May 2020