Thompson v Rosen

[2019] NSWSC 1258

Supreme Court

New South Wales

Medium Neutral Citation:	Thompson v Rosen [2019] NSWSC 1258
Hearing dates:	5 September 2019
Date of orders:	23 September 2019
Decision date:	23 September 2019
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	See [15] below
Catchwords:	CIVIL PROCEDURE – subpoenas – whether legal professional privilege applies to documents – whether it is appropriate to determine the claim in the absence of the party asserting the privilege
Legislation Cited:	UCPR, r 1.8
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)   Solicitors: Martin Street Lawyers (Plaintiff) Avant Law Pty Ltd (First and Second Defendants)
File Number(s):	2019/54162
Publication restriction:	Nil

Judgment

1. HIS HONOUR: By notice of motion filed on 4 July 2019, the second defendant moves the Court for various orders including an order pursuant to UCPR 1.8 for the determination of whether privilege, including legal professional privilege, applies to certain documents produced by Shine Lawyers Pty Limited.

2. UCPR 1.8 provides as follows:

“1.8 Determination of questions arising under these rules

The court may determine any question arising under these rules (including any question of privilege) and, for that purpose:

(a) may inspect any document in relation to which such a question arises, and

(b) if the document is not before the court, may order that the document be produced to the court for inspection.”

3. The plaintiff commenced these proceedings by statement of claim filed on 1 November 2018. She alleges that the first defendant was negligent in performing a hysterectomy, pelvic floor repair, paravaginal repair and cystoscopy on 28 August 2007. She alleges that the second defendant was negligent in managing her vaginal prolapse by inserting an anterior Prolift mesh and posterior Sugisis mesh on 25 February 2008. The defendants have so far not filed defences to these claims.

4. On 26 March 2019, the defendants issued a subpoena for production of documents addressed to Shine Lawyers Pty Ltd. Documents were produced to the Court in response to that subpoena and are contained in packet S-9. Shine Lawyers has claimed privilege over the documents in that packet.

5. It seems apparent that the defendants will plead the provisions of the Limitation Act 1969 to assert that the proceedings are time-barred. Although the details of the defendants’ contentions in this respect have not been provided, it seems likely that issues involving s 50D of the Act and discoverability of the plaintiff’s causes of action will be significant. So much is apparent from the evidence that has been filed for the purposes of this application.

6. For example, in support of the motion, the defendants relied upon two affidavits by their solicitor Michael Andre Swan, sworn respectively on 18 June 2019 and 3 July 2019.

7. Mr Swan’s first affidavit contains the following paragraphs:

“11. By letters to Shine Lawyers dated 27 May 2019 and 14 June 2019 I have asked whether Shine Lawyers object to the parties having access to packet S-9. I also indicated the documents may be relevant to my client’s [sic] intent to make an application to dismiss these proceedings on the basis the limitation period has expired and/or because of the concurrent proceedings in the Federal Court of Australia…

12. I anticipate receiving instructions to pursue an application pursuant to UCPR 1.8(a) seeking to question the claim of privilege and that a judicial officer inspect the documents in packet S-9. Once that application is determined I anticipate I will need a further 2 weeks in order to file defences on behalf of the first and second defendants.”

8. Mr Swan’s second affidavit contains material that includes the following:

“4. On 21 February 2019 I caused a subpoena for production directed to Watkins Tapsell Solicitors to be issued. I believe Watkins Tapsell has previously acted for Ms Thompson in relation to an unlitigated claim for damages against the first defendant in 2009…Documents were produced in response to the subpoena in packet S-5.

5. On 26 March 2019 I caused a subpoena for production directed to Shine Lawyers, Brisbane to be issued. I believe Shine Lawyers wrote to the second defendant in July 2010 making a claim for damages against him on behalf of Ms Thompson.

6. I also believe Shine Lawyers has been acting for Ms Thompson as a member of class action proceedings filed in the Federal Court of Australia on 15 October 2012 against Johnson & Johnson, the manufacturers of the vaginal mesh inserted by the second defendant.

7. I believe the class action proceedings are known as NSW 1590/2012 Kathryn Gill & Others v Ethicon Sari & others...

8. By letter dated 4 March 2019 Shine Lawyers responded to the subpoena by stating there were no documents to produce in relation to Gai Thompson with their reference PIMNP\TZD:ALM. This letter was produced in packet S-6...

9. On 26 March 2019 I caused a further subpoena for production directed to Shine Lawyers to be issued. On 14 May 2019 packet S-8 was produced. Two thousand five hundred and fifty (2,550) pages were produced in response to the subpoena. On 17 May 2019 a further packet of documents (S-9) was produced to the Court. The producing party (Shine Lawyers) has claimed privilege over the documents in packet S-9...

10. By letters to Shine Lawyers dated 27 May 2019 and 14 June 2019 I have asked whether Shine Lawyers object to the parties having access to packet S-9. I also indicted the document may be relevant to my client’s intent to make an application to dismiss these proceedings on the basis the limitation period has expired and/or because they may be an abuse of process due to the concurrent proceedings in the Federal Court of Australia...

11. By letter dated 19 June 2019 to Shine Lawyers I indicated my client’s intention to proceed with an application pursuant to Rule 1.8(a) Uniform Civil Procedure Rules for the court to inspect packet S-9 and determine any claim for privilege, provide access orders and seek costs of the application...

12. On 20 June 2019 I received a letter from Shine Lawyers enclosing an affidavit, claiming privilege over the documents in packet S-9 and objecting to access being granted...

13. Packet S-8 was produced by Shine Lawyers...

14. The documents produced on subpoena to date, the published media articles in relation to the plaintiff being a member of the class action proceedings and appearing at a Senate inquiry, and that she has had firms of solicitors acting for her in the past in relation to the facts of these proceedings raise issues as to whether a claim of privilege can be made and or maintained in relation to the documents produced in packet S-9.”

9. The terms of a third affidavit sworn by Mr Swan on 30 July 2019, in support of a notice of motion filed on that day seeking orders pursuant to UCPR 13.4 and/or 14.28, was in similar terms:

“4. I believe that the plaintiff, Ms Thompson wrote a letter of demand to the first defendant dated 19 May 2008 in relation to the treatment provided to her by the first defendant. Annexed hereto and marked with the letter ‘A’ is a true copy of the letter from the plaintiff to the first defendant dated 19 May 2008.

5. I believe the plaintiff instructed a firm of solicitors called Watkins Tapsell solicitors in 2008. Annexed hereto and marked with the letter ‘B’ is a true copy of a letter from Watkins Tapsell solicitors to Avant Mutual Group dated 31 July 2008.

6. I believe the plaintiff, Ms Thompson complained to the NSW Medical Council about the first defendant in 2010. Annexed hereto and marked with the letter ‘C’ is a true copy of a letter of complaint from the plaintiff to the NSW Medical Council concerning the first defendant, received by the Council on 5 March 2010.

7. I believe that the plaintiff wrote a letter of demand to the first defendant on 17 May 2011. Annexed hereto and marked with the letter ‘D’ is a true copy of a letter from the plaintiff to the first defendant dated 17 May 2011 and letter from Avant Law to the plaintiff on behalf of the first defendant dated 15 July 2011.

8. I believe the plaintiff, Ms Thompson complained to the Health Care Complaints Commission (HCCC) concerning the second defendant on 3 November 2011. Annexed hereto and marked with the letter ‘E’ is a true copy of a letter of complaint from the plaintiff to the HCCC concerning the second defendant.

9. On 21 February 2019 I caused a subpoena for production directed to Watkins Tapsell Solicitors to be issued. I believe Watkins Tapsell has previously acted for Ms Thompson in relation to an unlitigated claim for damages against the first defendant in 2008. Annexed hereto as a bundle marked ‘F’ is a true copy of a documents produced under subpoena by Watkins Tapsell Solicitors in packet S-5.

10. On 26 March 2019 I caused a subpoena for production directed to Shine Lawyers, Brisbane to be issued. I believe Shine Lawyers wrote to the second defendant in July 2010 making a claim for damages against him on behalf of the plaintiff. Annexed hereto and marked with the letter ‘G’ is a true copy of a letter from Shine Lawyers to the second defendant dated 22 July 2010.

11. I also believe Shine Lawyers has been acting for the plaintiff, Ms Thompson as a member of class action proceedings filed in the Federal Court of Australia on 15 October 2012 against Johnson & Johnson, the manufacturers of the vaginal mesh inserted by the second defendant, amongst others.

12. I believe the class action proceedings are known as NSD 1590/2012 Kathryn Gill & Others v Ethicon Sari & others. From searching the Commonwealth Law Portal accessible through the Federal Court of Australia website I have ascertained that the current proceedings are a Fifth Further Amended Statement of Claim and that there have been three Interlocutory decisions of the Federal Court in the class action proceedings.”

10. The claim for privilege maintained by Shine Lawyers on behalf of the plaintiff is supported by an affidavit affirmed by Annette Maree O’Hara on 13 May 2019 as follows:

“1. I am a legal practitioner and company secretary of Shine Lawyers Pty Ltd t/a Shine Lawyers.

2. This affidavit is made in response to the Subpoena to Produce filed on 26 March 2019 (the subpoena). I make this affidavit to claim legal professional privilege in relation to the documents requested of Shine Lawyers marked as ‘Privileged’ and as such restrict access to these documents on this ground.

3. The subpoena requested the entire file relating to the plaintiff in these proceedings, Gai Thompson in relation to her medical negligence file specifically and file held generally.

4. From review of our files, I believe Ms Thompson has two separate files held with Shine Lawyers. These files include:

(a) documents that relate to a discontinued medical negligence claim against the second defendant in these proceedings (Med Neg Claim documents); and

(b) documents that relate to Ms Thompson’s registration with Shine Lawyers as a potential group member of the class action of Kathryn Gill, Diane Dawson and Ann Sanders v Ethicon Sarl, Ethicon, Inc. and Johnson & Johnston Medical Pty Limited (Mesh Class Action) documents.

Med Neg Claim documents

5. I believe that the material marked as ‘Privileged’ contained in the file for the medical negligence claim includes confidential communications made between Ms Thompson as a client of Shine Lawyers and Shine Lawyers and documents prepared by Shine Lawyers for the purpose of providing legal advice in relation to her potential medical negligence claim.

6. I am of this belief as Ms Thompson engaged the services of Shine Lawyers in relation to her medical negligence claim and documents were produced by Shine for the purpose of providing these legal services.

7. The documents over which we claim privilege in relation to the medical negligence claim include:

(a) File opening summaries containing information provided by Ms Thompson created for the purpose of providing legal advice in relation to the claim;

(b) Documents containing a record of legal work carried out by Shine Lawyers for the benefit of Ms Thompson in relation to the claim;

(c) Billing information for the matter;

(d) Correspondence internally of Shine Lawyers in relation to the claim;

(e) Correspondence to Ms Thompson providing updates in relation to the status of her claim and confirming her instructions in relation to the claim; and

(f) Correspondence to Ms Thompson providing legal advice in relation to her potential medical negligence claim.

Mesh Class Action documents

8. The documents marked ‘Privileged’ contained in the file for the Mesh Class Action includes confidential communications made between Gai Thompson as an individual registering her potential claim in the mesh class action and Shine Lawyers and documents prepared by Shine Lawyers for the purpose of confirming her implant type for the purpose of the provision of legal services by Shine Lawyers to Ms Thompson as a registered potential group member.

9. I am of this belief as Ms Thompson registered her potential claim in relation to the mesh class action with Shine Lawyers and Shine Lawyers produced documents for the purpose of providing legal services to Ms Thompson as a registered potential group member of the class action. The Mesh Class Action litigation remains ongoing.

10. The documents over which we claim privilege in relation to the mesh class action include:

(a) Internal reviews of the records of Ms Thompson by Shine Lawyers in relation to her potential mesh class action claim;

(b) Questionnaires completed by Ms Thompson providing information in relation to her potential mesh class action claim;

(c) Correspondence providing the basis on which Shine Lawyers will act in relation to Ms Thompson’s potential mesh class action claim;

(d) Correspondence to and from Ms Thompson in relation to the status of the mesh class action and evidence presented during the trial;

(e) Correspondence from Ms Thompson providing information in relation to her potential mesh class action claim.

Privilege not waived

11. Shine Lawyers has been instructed by Ms Thompson that she does not want to waive privilege in relation to any of the documents over which it could be claimed.

Document where privilege is not claimed

12. In relation to both the medical negligence and class action file, Shine Lawyers has produced in response to the subpoena documents that relate to Ms Thompson’s medical records and schedules of those records, as well as correspondence with other parties to obtain these records. We do not resist access to these documents.”

11. It will be apparent that that affidavit is not an entirely satisfactory foundation upon which I could be expected to adjudicate the current application.

12. When this matter came before me, there was no appearance on behalf of Shine Lawyers. Counsel representing the plaintiff in the present proceedings made it plain that he did not represent that firm and did not assert the privilege claimed by them. He indicated, however, that in his capacity as the legal representative of the plaintiff in the present proceedings, he wished to support the claim inasmuch and insofar as he was able to do so in the interests of the plaintiff in that capacity. As will already be apparent, the issue of whether the present proceedings can be successfully defended upon the basis that they have been commenced out of time is obviously going to loom large.

13. In my view, it is both unduly cumbersome and inappropriate for me to embark upon a determination of the claim for privilege without the assistance of a representative from Shine Lawyers in the interests of the plaintiff in these proceedings to argue it in suitable detail. I appreciate that there may be significant costs considerations involved in taking that course, and that the plaintiff may be perfectly content not to expend further resources in order to assert and protect her claim in the circumstances. However, be that as it may, I am not prepared to examine the manifold documents in packet S-9 without some detailed guidance from some appropriately instructed representative of the producing party.

14. It is particularly important that the matter should be approached in this way having regard to the position taken by the defendants, who perceive that the documents or some of them may be determinative of the limitation defence that they have foreshadowed.

15. Subject to what follows, I will at this stage do no more than list this application before me at some date suitable to the parties in order that they might in the meantime consider their respective positions and indicate in due course what should then happen.

16. In the course of the brief hearing before me, Mr Romaniuk of senior counsel for the plaintiff made the following observation:

“ROMANIUK: ... It wouldn't surprise your Honour that the redacted materials relate to the Federal Court proceedings. It is, in the old language, a bit messy and I don't think Mr Sergi or myself or Mr Roulstone have come across something quite like this, where the agitator is somewhere else in the sense that Shine should be here protecting the Federal Court proceedings.

If it assists the Court, I have examined the contents of S-9 and so has Mr Roulstone and so has our solicitor, Ms Prats. The only materials in those that were produced that bore upon the Supreme Court proceedings against the defendant, are those annexed to exhibit 1. I understand that my friend does not have to accept that, because there is a chance that we may have made inadvertent error. But I don't think we have.”

17. The unredacted portion of a letter dated 24 March 2011 from Shine Lawyers to the plaintiff, which is attached to Exhibit 1 in the present application, is in these terms:

“Dear Mrs Thompson

RE: YOUR MEDICAL NEGLIGENCE CLAIM

We refer to the above and to your telephone conversation with Susan Newman on Wednesday 23 March 2011.

We confirm that the expert opinion we have obtained does not support the claim of negligence according to Dr Lam.”

18. In the hope that it is or may be helpful, I should indicate to the parties that, having examined the documents in packet S-9 over which privilege is asserted, it appears reasonably clear to me that Mr Romaniuk’s preliminary assessment (extracted above) of the likely usefulness of the documents has considerable force.

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Decision last updated: 23 September 2019