Topine v Canterbury Bankstown Bulldogs Rugby League Club Limited (No 2)

[2024] NSWSC 1607

Supreme Court

New South Wales

Medium Neutral Citation:	Topine v Canterbury Bankstown Bulldogs Rugby League Club Limited (No 2) [2024] NSWSC 1607
Hearing dates:	10 December 2024
Date of orders:	18 December 2024
Decision date:	18 December 2024
Jurisdiction:	Common Law
Before:	Davies J
Decision:	(1) Access is granted to the documents produced by Dr Michael Atherton, Mr John Carmody and Ms Jan Earl as provided in para [11] of this judgment
Catchwords:	CIVIL PROCEDURE – subpoenas – where plaintiff objects to access being granted to documents produced by health professionals – where claim based on protected confidence under s 126B Evidence Act - where plaintiff treated by health professionals – where reports served by plaintiff disclosed certain imparted information – whether material had probative value – confidential addendum to judgment explaining reasons for outcome
Legislation Cited:	Evidence Act 1995 (NSW) s 126A, 126B, 126C, 131A
Cases Cited:	Topine v Canterbury Bankstown Bulldogs Rugby League Club Limited [2024] NSWSC 1462
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Jackson Topine (Plaintiff) Canterbury Bankstown Bulldogs Rugby League Club Limited (First Defendant) Travis Touma (Second Defendant)
Representation:	Counsel: P Lange (Plaintiff) V Bulut (Defendants) Solicitors: Kings Law Group (Plaintiff) King & Wood Mallesons (Defendants)
File Number(s):	2024/151943
Publication restriction:	Nil

Judgment

1. I gave judgment in respect of a number of subpoenas which concerned (inter alia) communications between the plaintiff and three health care professionals: Topine v Canterbury Bankstown Bulldogs Rugby League Club Limited [2024] NSWSC 1462. Part of the claim made by the plaintiff seeking to restrict access to the defendants was based on Div 1A of Ch 3 Pt 3.10 of the Evidence Act 1995 (NSW) which deals with professional confidential relation privilege. I set out the terms of ss 126A, 126B and 126C in my earlier judgment.

2. I said at the conclusion of that judgment:

[61]   It will be necessary for there to be a further hearing to enable me to inspect the documents prepared by the health care professionals over which any form of privilege is claimed in the light of this judgment. Any decision made must have regard to the consent given for the disclosure of confidential information as is recorded in Dr Atherton's report.

[62] As a result of what I have said in this judgment, the plaintiff will need to give consideration to what documents a claim for client legal privilege or a claim under s 126B is maintained. The matter can be relisted for further argument, including, if necessary, for inspection of disputed documents by the Court. …

3. The plaintiff subsequently provided to me at my direction copies of the documents over which privilege was claimed under s 126B. A further hearing was held on 10 December 2024 in accordance with the procedure I identified at [59] of my judgment. In practical terms the hearing was conducted in such a way that counsel for the defendants was able only to make general submissions without being aware of the specific information that was sought to be withheld by the plaintiff.

4. In determining whether a direction should be made under s 126B that evidence not be produced or accessed (by virtue of s 131A operating on s 126B), I am required to take into account the matters in s 126B(4) that are relevant to the application. The parties emphasised paragraphs (a) dealing with the probative value of the evidence and paragraph (h) dealing with whether the substance of the protected confidence had already been disclosed by the protected confider, that is, the plaintiff.

5. The determination that I have made has taken into account the information that has already been disclosed in the reports of Dr Atherton and also on the probative value of the material when taking into account the claim that the plaintiff is making, and what is generally relevant background information that would be required to inform expert witnesses and the ultimate decision maker in the proceedings.

6. During the course of the hearing the plaintiff sought leave to file and read a confidential affidavit which was said to address the question of “harm” as it is defined in s 126A. The defendants opposed leave being given to the plaintiff in that regard. The defendants submitted that evidence concerning what harm the plaintiff might suffer by disclosure of the documents was a different issue from what was contained in the documents. In that way confidential evidence should not be received about that issue.

7. I indicated that I would need to see the affidavit to rule on the objection. Having read the affidavit I struck out various portions of it on the basis that the material did not relate to harm to the plaintiff which is what s 126B(3) is concerned with. Portions of the affidavit that related to harm to the plaintiff were allowed and I directed that the affidavit be kept confidential.

8. The defendants were not entirely in the dark about the harm the plaintiff was claiming he would suffer. I set out in my earlier judgment (at [46]) what Dr Atherton reported about the harm the plaintiff claimed he would suffer if the material was disclosed.

9. As in many public interest immunity cases, the identification of the precise harm that would or might be suffered is inextricably linked to the material which was the subject of the claim. Disclosure of the affidavit would defeat the application being made by the plaintiff. However, what can be said, and I said as much to counsel for the defendants during the hearing, the affidavit goes a little beyond what is contained in the report of Dr Atherton at [46] of my earlier judgment. The plaintiff says in the affidavit that he would suffer harm in his relationships with the family members sought to be protected by the present application.

10. I have marked the seven pages which contained information over which privilege was claimed as confidential exhibit “A” on the application. The exhibit contains boxes around the portions of the documents over which privilege is claimed.

11. In my opinion, access should be granted to the defendants to the following portions of exhibit A:

Page 1:   The whole of page 1 except for the information in the second and third boxes;

Page 2:   The whole page except the information in the box;

Page 3:   The whole page except the information in the two boxes;

Page 4:   The whole page;

Page 5:   The whole page excluding the five words following “enjoys life” in the box;

Page 6:   The whole page except for the last two paragraphs within the box; and

Page 7:   The whole page except for the last five words.

12. In case this matter goes further, I have prepared a short addendum to this judgment which will be provided to those acting for the plaintiff and be otherwise sealed and marked “Confidential” along with the information and documents in respect of which access is to be refused. It explains my reasons for the outcome indicated above. The plaintiff will need to prepare redacted forms of the pages.

13. I make this order:

1. Access is granted to the documents produced by Dr Michael Atherton, Mr John Carmody and Ms Jan Earl as provided in para [11] of this judgment.

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Decision last updated: 18 December 2024