Williams v Conybeare Morrison International Pty Ltd - [2023] NSWPIC 388

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Williams v Conybeare Morrison International Pty Ltd [2023] NSWPIC 388
APPLICANT:	Matthew Williams
FIRST RESPONDENT:	Conybeare Morrison International Pty Ltd
SECOND RESPONDENT:	Reid Campbell (NSW) Pty Ltd
THIRD RESPONDENT:	Marchese Partners Engineering Pty Ltd
FOURTH RESPONDENT:	Figgis & Jefferson Tepa Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	3 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Determination of objection to respondent accessing expert medical report produced under a Direction for Production; rule 51 of the Personal Injury Commission Rules 2021; whether document subject to legal professional privilege; whether confidentiality maintained in circumstances where report provided to treating doctor and where earlier report from same expert previously disclosed to insurer; Held – report is subject to legal professional privilege; confidentiality maintained; objection upheld.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant’s objection to the respondents accessing the report of Dr Andrew Porteous, dated 9 January 2020, is withdrawn. 2. The applicant’s objection to the respondents accessing the correspondence from Mr Matthews to the applicant, dated 7 July 2022, is upheld. 3. The applicant’s objection to the respondents accessing the report of Dr Andrew Porteous, dated 22 June 2022, is upheld.

STATEMENT OF REASONS

BACKGROUND

On 7 July 2023, leave was granted to the respondents to lodge with the Registry a number of Directions of Production, including one directed to North Sydney Plaza Medical Centre for the production of Matthew Williams’ (the applicant) clinical records. The Direction for Production was issued and documents produced to the Personal Injury Commission (Commission), to which the applicant was granted first access.
On 26 July 2023, the applicant notified the Commission in writing of an objection in accordance with Rule 51(2) of the Personal Injury Commission Rules 2021 to the respondents being granted access to two reports of Dr Andrew Porteous, dated 22 June 2022 and 9 January 2020. The objection was made on the ground that the reports were subject to legal professional privilege.
A notice of opposition was lodged by the respondents in accordance with Rule 51(4) of the Personal Injury Commission Rules 2021 on 27 July 2023. The objection was opposed on the ground that privilege in relation to both reports had been waived.
In support of this submission, the respondents forwarded correspondence from the applicant's former solicitors, Schofield King, addressed to the insurer, dated 25 March 2020 serving a copy of Dr Porteous' first report dated 9 January 2020 in connection with an application for internal review.
It was submitted that, having waived privilege over Dr Porteous' first report, the applicant's solicitor was obliged to provide copies of all reports prepared by Dr Porteous, including his later report, along with all letters of referral to Dr Porteous, plus copies of the attachments to those referral letters.
A preliminary conference was convened on 3 August 2023 to hear oral submissions from the parties in relation to the objection. The applicant was represented by Mr John Matthews, legal practitioner. The respondent was represented by Mr Kiran Ramrakha, legal practitioner.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWPIC 388
Decision Date: 3 August 2023

CaseChat Overview and Summary

The matter before the Court involved a dispute between the worker, Mr Williams, and Conybeare Morrison International Pty Ltd regarding the worker's access to an expert medical report produced under a Direction for Production. Mr Williams objected to the respondent accessing the report, arguing that it was subject to legal professional privilege and that the confidentiality of the report had been compromised. The case was heard and determined by the Personal Injury Commission of New South Wales.

The primary legal issue the Court had to decide was whether the expert medical report was subject to legal professional privilege and whether the confidentiality of the report had been maintained. Specifically, the Court had to consider whether the privilege was lost when the report was provided to the worker's treating doctor and whether the confidentiality was compromised when an earlier report from the same expert had already been disclosed to the insurer.

In its decision, the Court found that the expert medical report was subject to legal professional privilege. The Court held that the privilege was not lost when the report was provided to the worker's treating doctor, as this was a necessary step in the treatment process and did not constitute a waiver of the privilege. The Court also found that the confidentiality of the report had been maintained, despite the earlier disclosure of a report from the same expert to the insurer, as the content of the earlier report was different and the circumstances of its disclosure were distinct. As a result, the Court upheld the objection to the respondent accessing the expert medical report.

The Court ordered that the objection to the respondent accessing the expert medical report was upheld. The report remained subject to legal professional privilege and the confidentiality of the report was maintained. The respondent was not permitted to access the report.

Orders