Weddle v CPB Contractors Pty Ltd - [2019] WADC 8

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   WEDDLE -v- CPB CONTRACTORS PTY LTD [2019] WADC 8
CORAM:   DEPUTY REGISTRAR HARMAN
HEARD:   14 NOVEMBER 2018
DELIVERED          :   23 JANUARY 2019
FILE NO/S:   CIV 2666 of 2017
BETWEEN:   GEORGE PETER WEDDLE
Plaintiff
AND
CPB CONTRACTORS PTY LTD
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court 1971 - Application for inspection of a document the subject of a claim of privilege and for provision of the document

Legislation:

Workers' Compensation and Injury Management Act 1981, s 146H(1)

Result:

Defendant's applications unsuccessful

Representation:

Counsel:

Plaintiff	:	Mr G Stubbs
Defendant	:	Mr D Clyne

Solicitors:

Plaintiff	:	JDK Legal Services
Defendant	:	Mills Oakley

Case(s) referred to in decision(s):

Nil

DEPUTY REGISTRAR HARMAN:

The plaintiff's claim is for damages for personal injuries sustained whilst acting in the course of his employment by the defendant. He pleads that as a consequence of the negligence of the defendant he injured his left knee and left shoulder and that later he injured his lower back, left hip and left ankle.
On 22 June 2018 the defendant issued a subpoena to Mr J Spencer, the plaintiff’s treating orthopaedic surgeon requiring him to produce all medical records held by his practice in relation to the plaintiff. I take it that in response the witness has produced documents.
In his supplementary list of documents dated 2 July 2018 the plaintiff claimed representation privilege for a letter from his solicitors to Mr J Spencer and for a report of Mr J Spencer to his solicitors, each dated 29 January 2018.
By letter dated 31 July 2018 the plaintiff's solicitors wrote to the court proposing that an order be made in the following terms:
1.With reference to the Subpoena to Produce addressed to Mr Johnathon Spencer issued by the Defendant on 22 June 2018 and pursuant to O 46B rule 8 and 9 RSC, the;
a.report of Mr Johnathon Spencer dated 29 January 2018,
b.letter of instruction to Mr Johnathon Spencer dated 30 November 2017,
c.file notes and materials of Mr Johnathon Spencer relating to the consultation and assessment of the plaintiff on 29 January 2018; and
d.tax invoices, receipts and cost estimates relating to the provision of the report dated 29 January 2018.
not be inspected, copied or produced to any party.
Upon receipt of the letter the action was listed for directions. As a consequence, the issues raised by the letter were referred to a special appointment.
By their oral submissions each party addressed only the claim of privilege for the report of Mr Spencer dated 29 January 2018. At the conclusion of the hearing the scope of what had then become the defendant’s application to displace that claim had been limited in its scope to what in the course of the hearing had been referred to as the AMS forms. At the conclusion of the hearing I was asked to defer making a determination pending production of the transcript of a hearing before a registrar that in the same or similar circumstances had resulted in displacement of such a claim of privilege. That transcript has now been provided and the parties have had the opportunity to file further submissions. I have read the transcript of that hearing and of the hearing.
The case put by the defendant depends upon the application of s 146H(1) of the Workers’ Compensation and Injury Management Act 1981. It is as follows:
(1)An approved medical specialist making an assessment for the purposes of Part III Division 2A, Part IV Division 2 Subdivision 3, Part IXA or clause 18A is required to give to each of the worker and the employer, in writing in accordance with the regulations —
(a)a report of the worker's degree of impairment, including details of the assessment and reasons justifying the assessment; and
(b)a certificate specifying the worker's degree of impairment.
Although in the written submissions and during the hearing, no reference was made to its application clearly, the provision is not of general application. Reliance depends upon the grounds for its application being established.
The only useful evidence is that of Ms Glasser. She deposes as follows:
…
11.The plaintiff's Supplementary List, in the privileged section, contains 'reports' prepared by Mr Jonathon Spencer and consultant occupational physician and Approved Medical Specialist ('AMS') Dr Alan Home …
…
13.On 30 July 2018, after taking further instructions from our insurer client, Mills Oakley wrote to JDK … enquiring whether the reports of Mr Spencer … comprise AMS forms.
14.… A copy of JDK's letter of response to us dated 31 July 2018. The third paragraph does not answer the question of whether an AMS, who has made an assessment of WPI for the purpose of Part IX Division 2 of the Act has satisfied his/her statutory obligation on (sic) to provide copies of AMS Forms 5 (report) and 6 (certificate) 'to each of the worker and the employer, in writing'.
…
16. … On the morning of 16 August 2018 I received a telephone call from JDK's Ms Harrison enquiring …. Additionally, Ms Harrison advised that the plaintiff had filed some sort of application …
…
21.On 22 August 2018 I attended a directions hearing in respect of the application.
22. Before the parties appeared … I discussed the matter informally, outside the hearing room, with Ms Harrison and plaintiff's counsel Mr Guys Stubbs.
23.After speaking privately with Ms Harrison, Mr Stubbs informed me that the subject report prepared by Mr Johnathon Spencer does contain AMS forms. Further, Mr Stubbs advised me that the report by Dr Alan Home dated 4 April 2018 does not comprise AMS forms.
…
There having been no contest to the content of par 23, I am satisfied that parts of the report of Mr Spencer are constituted by AMS forms.
Throughout the hearing and by the submissions filed both prior and subsequent to the hearing the parties each referred to AMS forms. There was nothing to suggest that the parties had other than a common understanding of the meaning of the term. I take it to be the case that AMS forms are prescribed for use by an approved medical specialist in both reporting and certifying under s 146H(1).
The evidence of Glasser would provide grounds to consider that Mr Spencer had utilised the forms and that he provided them to the plaintiff. It does not establish the grounds for application of s 146H(1). Accordingly the defendant relies upon the court drawing inferences.
In determining an application the court will carefully consider whether there is any reason to so assist a party, particularly an applicant who would be taken to be aware that it would carry the onus. Although no explanation was given for the emergence of the application from the context I have described, clearly the defendant cast itself in that role.
The defendant would first require the court to infer that at the relevant time Mr Spencer had been an approved medical specialist.
There is nothing to suggest that it would not have been open to the defendant to bring evidence of Mr Spencer's qualification. On the basis of the content of par 11 of Glasser's evidence it is difficult to avoid the conclusion that the failure to provide either evidence or evidence of some difficulty in so doing was due to oversight. If the need for the inference is more deserving, there was no indication of how that might be apprehended.
The defendant would also require the court to establish that utilisation of the forms had been for a purpose specified in the provision.
In considering whether to draw any inference at all it is appropriate to reflect on the attraction of contrary inferences. In this instance that Mr Spencer had not then been an approved medical specialist and that his assessment had not engaged one of the purposes specified in s 146(H)(1). The reason those inferences would have been equal, perhaps some greater attraction is that a person so qualified would be aware of the statutory provision and the context in which it would operate.
I am not persuaded that I should assist the defendant as it would require that I do. It follows that s 146(H)(1) has no application.
None of what I have canvassed above was the subject of submission at the hearing however, in reflecting upon whether the defendant could succeed, the availability of s 146(H)(1) cannot be avoided.
At the hearing there was some debate around the significance of the word 'purpose' in the reference to pt IV div 2 sub-div 3. It was common ground that the relevant provision within pt IV div 2 sub-div 3 is s 93K (4)(d). It is as follows:
93K. Constraints on awards
…
(4)Damages in respect of an injury can only be awarded if —
…
(d)the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.
The defendant contended that the fact that the forms had been used established that their purpose would be as specified at s 93K(4)(d). The premise of that contention being that until a court determines the degree of impairment of a plaintiff, a purpose served by utilisation of the forms must extend to establishing grounds for a finding in accordance with s 93K (4)(d).
The difficulty with that premise is that the determination required under s 93K(4)(d) is not of a degree of impairment but a particular degree of impairment. In my opinion an assessment of a lesser degree of impairment would be of no utility for the purpose of s 93K (4) (d). It follows that such an assessment could not be for the purpose of s 93K(4)(d). There being no evidence of the assessment the defendant must rely on the court drawing an inference that it had been equal to or had exceeded the prescribed degree of impairment. The availability of a contrary inference is obvious. There could be no reason to prefer that upon which the defendant would rely.
The defendant’s submission would also depend upon an interpretation of the words 'for the purposes of s 93K(4)(d)' that would correspond with 'utilisation for the purpose of obtaining a determination under s 93K(4)(d) absent legislative prescription that a particular finding would be made upon specified evidence'. According to s 93K(4)(d) it is open to the court to make a determination on evidence irrespective of the manner in which it was presented.
I accept that a process of statutory interpretation would be informed by the need to accord to the words some meaning. Otherwise it may be open to consider that it would only be upon utilisation of the form before a court that the purpose of its provision would be established.
In light of my determination that s 146H(1) does not apply, the meaning to be attributed to the words can await another day.
Had it been open to the defendant to draw upon s 146H(1), there being no reference in that provision to anyone other than an approved medical specialist, to establish the proposition that representation privilege was not available to the plaintiff, would depend upon recourse to common law to establish a relationship between Mr Spencer and the plaintiff sufficient to compromise such recourse by the plaintiff. No such case was put by the defendant.
Without going to the lengths of a dissertation on the subject of representation privilege, I am confident that performance of the statutory obligation by an approved medical specialist would rest comfortably alongside a claim to privilege by a litigant: so that even if the plaintiff had been aware that the defendant had received the forms from Mr Spencer, common law would permit him to claim privilege for the same forms.
Other than by reference to the case to which I earlier referred, the defendant did not develop the proposition that the statutory provision extinguished the entitlement to claim privilege of the AMS forms.
Because s 146H (1) does not expressly deal with the subject of representation privilege, for the defendant to succeed in the application to displace the claim to privilege, it would depend upon the court considering that by the terms of s 146H (1) implicitly the legislature had intended to extinguish privilege for documents within its scope. What I may characterise as the practical difficulty with such an undertaking is that it would cast upon a court exercising common law jurisdiction an active role in extinguishing common law.
It is not necessary to expound upon the subject of representation privilege in order to record that it is a necessary part of the framework that delivers the desirable consequence that litigation be had between represented parties. The beneficiaries of litigation so informed are both of the parties in any particular case and the broader community. It is difficult to conceive that by its deliberative processes a legislature would not be so informed. Be that as it may, I am satisfied that when called upon to interpret a statutory provision that may be taken to impinge upon the common law, the proper course for the court to take would presume that the legislature had been aware of the existence of the common law.
Once that datum is established it is relatively easy to consider that a legislature intending to modify or extinguish common law would do so by explicit reference. An illustration of the legislature following such a course is revealed by s 182ZA of the same Act: at which point it expressly identifies and then extinguishes the same facet of the common law.
It follows that unless such a provision expressly identifies a common law right or entitlement there is no reason to consider that the legislature had intended to interfere in that right.
Having read the transcript of the hearing and reflected upon the proposition that the defendant is entitled to the forms, I consider that I should deal with what may have some appeal as an application for the plaintiff to provide the forms to the defendant.
Again the defendant must rely upon the application of s146H(1) and it is not available. In any event the statutory obligation is on the approved medical specialist. Patently a plaintiff would not be subject to the obligation.
At earlier points in these reasons I have referred to the defendant's reliance upon a decision of a registrar. The transcript of a hearing on 20 November 2015 in action 382 of 2015 between Gutierrez Patricio and Kitcraft Kitchens Pty Ltd reveal that by its application the defendant had sought inspection of documents discovered by the plaintiff over which he had claimed legal professional privilege. The question for determination posed by the Registrar was whether particular AMS forms attract professional privilege. In that case the registrar was persuaded that s 146H(1) of the Workers' Compensation and Injury Management Act abrogated the claim of legal professional privilege. Because the analysis undertaken by the registrar does not disclose the course of interpretation to that conclusion, I was not persuaded that the content of the transcript assisted in determining the applications.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
Court Officer
22 JANUARY 2019