Williams v Conybeare Morrison International Pty Ltd
[2023] NSWPIC 388
•3 August 2023
| 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 The applicant’s objection to the respondents accessing the report of Dr Andrew Porteous, dated 9 January 2020, is withdrawn. 2.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.
At the conference, the applicant withdrew its objection to the respondents being given access to Dr Porteous’ first report, dated 9 January 2020.
The applicant made a further objection to the respondents being given access to a third document, namely correspondence from Mr Matthews to the applicant dated 7 July 2022 located at pp 250 to 251 of the file produced by North Sydney Plaza Medical Centre. That objection was not opposed by the respondents and is therefore upheld.
Submissions
Oral submissions were heard in respect of the objection to access being given to the report of Dr Porteous dated 22 June 2022. Those submissions have been considered in making the determination below.
In summary, the respondents submitted that although the rules of evidence do not apply in Commission proceedings, guidance may be obtained from ss 118 and 122 of the Evidence Act 1995. The respondents submitted that the confidential nature of Dr Porteous’ report had been lost and therefore any privilege over it waived due to:
(a) the disclosure of Dr Porteous’ first report to the insurer, and
(b) the applicant’s voluntary disclosure of the second report to his doctor.
In relation to the first matter, the respondents referred to the decision in Copper v Hobbs,[1] and submitted that the applicant sought to deploy the substance of Dr Porteous’ opinions for a forensic purpose to advance his claim for compensation. This was said to be inconsistent with the maintenance of the confidentiality over those opinions.
[1] [2013] NSWCA 70.
With regard to the second matter, the respondents referred to s 122(3) of the Evidence Act 1995 and submitted that the applicant had knowingly and voluntarily disclosed the report to another person (his general practitioner) and pursuant to s 122(2) had acted in a way that was inconsistent with the maintenance of confidentiality over the report.
The applicant submitted that the respondents’ view of the law was incorrect. The applicant noted that the first report was obtained by the applicant’s former solicitors in respect of a different claim against only one of the respondents to the current proceedings. The second report was procured in connection with a different claim made against four respondents. The applicant did not seek to rely on the first report in these proceedings and so the disclosure of the first report had no bearing on the confidentiality of the second report.
With regard to the applicant’s disclosure of the report to his doctor, the applicant submitted that the report was disclosed to the doctor in confidence and in a manner that preserved the confidential nature of the report. Alternatively, the disclosure was an inadvertent disclosure which he now sought to remedy.
FINDINGS AND REASONS
In Liverpool City Council v Trovato[2] it was held that legal professional privilege applies in Commission proceedings:
“It can be seen from the above discussion that, while the rules of evidence, and the Evidence Act 1995 do not apply to the Commission, a party in Commission proceedings will have the benefit of the ‘common law right’ or ‘immunity’ of legal professional privilege, unless it has been expressly and unequivocally excluded by statute. There is no such express exclusion in the Workers Compensation Acts.”
[2] [2004] NSWWCCPD 15.
Legal professional privilege depends upon:
·the existence of a client and lawyer relationship,
·the confidential nature of the communication or document, and
·the communication or document being brought into existence by the client, lawyer or another person for the dominant purpose of either:
oenabling the client to obtain, or the lawyer to give legal advice or provide legal services, or
ofor use in existing or anticipated litigation.
I am satisfied on the material before me that a client and lawyer relationship between the applicant and his solicitors was in existence at the time the report in question was prepared. I also accept that the report was brought into existence for the dominant purpose of enabling the applicant’s solicitors to give legal advice or provide legal services to the applicant in respect of his potential entitlement to workers compensation.
The final element for consideration, and that which is in dispute, is whether the report is confidential.
There is no evidence before me that the report dated 22 June 2022 has previously been provided to the respondents or their insurer.
The report has apparently been provided by the applicant to his general practitioner. Whilst I do not accept that this disclosure was “inadvertent”, I do accept that the relationship between a patient and doctor is such that the applicant would have had a reasonable expectation that the report would be kept in confidence by his doctor. I accept that consistently with s 122(3) and s 122(5)(i) of the Evidence Act 1995 the disclosure of the report by the applicant to his doctor was itself a confidential communication therefore not inconsistent with the maintenance of confidentiality.
There is nothing before me to suggest that the report has been disclosed to any other person or in a manner which was inconsistent with the confidential nature of the report being maintained.
With regard to the effect of the disclosure of Dr Porteous’ first report, I accept that the report now in question was prepared at a later point in time, at the request of different solicitors and in connection with a different claim for compensation. I am not satisfied that the substance of the opinions expressed in the first report is necessarily the same as the opinions expressed in the second report. As a result, I do not accept that the applicant’s use of the first report in applying for internal review in relation to the earlier claim is properly characterised as an attempt to deploy the substance the report now in issue for a forensic purpose.
I also do not accept that the disclosure of the second report is reasonably necessary to enable a proper understanding of the first report for the purposes of s 126 of the Evidence Act 1995, although it is possible that the reverse would be true.
For these reasons, I am satisfied that the confidentiality of the 22 June 2022 report has been maintained and that it remains subject to legal professional privilege.
The applicant’s objection to the respondents having access to the report of Dr Porteous dated 22 June 2022 is upheld.
In view of the findings above, the respondents are not to be given access to the report of Dr Porteous dated 22 June 2022.
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