Wolters v Hardcastle
[2001] WADC 37
•14 FEBRUARY 2001
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: WOLTERS -v- HARDCASTLE [2001] WADC 37
CORAM: MARTINO DCJ
HEARD: 20 DECEMBER 2000, 7 & 14 FEBRUARY 2001
DELIVERED : Delivered Extemporaneously on 14 FEBRUARY 2001 typed from tape and edited by Trial Judge
FILE NO/S: CIV 1920 of 1996
BETWEEN: KATHLEEN YVONNE WOLTERS
Plaintiff
AND
PHILIP HOBSON HARDCASTLE
Defendant
Catchwords:
Evidence - Claim of privilege on grounds of public interest immunity
Procedure - Discovery - Claim of privilege on grounds of public interest immunity
Legislation:
Nil
Result:
Appeal dismissed, claim for privilege not allowed
Representation:
Counsel:
Plaintiff: Mr M N Zusman
Defendant: Mr J F Raftos
Solicitors:
Plaintiff: Bradford & Co
Defendant: Edwards Wallace
Case(s) referred to in judgment(s):
CTC Resources NL v Australian Stock Exchange Ltd (2000) 22 WAR 48
Case(s) also cited:
Australian National Airlines Commission v Commonwealth of Australia & Anor (1975) 132 CLR 582
Medical Board of South Australia v Fisher (2000) 76 SASR 242
ZZZ v JX, unreported; SCt of Vic; BC9300986; 25 November 1993
MARTINO DCJ: This is an appeal by the defendant against a decision of Deputy Registrar Hewitt wherein the learned Deputy Registrar ordered that the plaintiff's application for further and better discovery of documents be allowed. The nature of the action is a claim for damages for breach of professional duty by the defendant, an orthopaedic surgeon who carried out surgery on the plaintiff. Liability is denied by the defendant.
The document in question is a report or a letter prepared by the defendant and sent to the Medical Board of Western Australia. It is dated 19 December 1994. The defendant contends that discovery of the document should not be ordered on the grounds of public interest privilege. The basis of the public interest privilege is that the letter or report was sent in response to an enquiry or a request by the Board following a complaint to the Board by the plaintiff. The argument is that if discovery were ordered and the claim to public interest privilege not allowed then it would thereby undermine the frankness of communications by medical practitioners to the Medical Board.
This appeal is, of course, a hearing de novo. When the matter first came before me a few weeks ago I referred counsel to the decision of the Full Court of the Supreme Court of Western Australia in CTC Resources NL v Australian Stock Exchange Ltd (2000) 22 WAR 48 and particularly the following passage at 55:
"It is also clear that the court has the power to prevent disclosure of a document the production of which would be contrary to the public interest even if no claim is made by a Minister or other high official that its production be withheld: see Sankey v Whitlam (1978) 142 CLR 1 (at 144), per Gibbs ACJ; Conway v Rimmer [1968] AC 910 at 950, per Lord Reid. However, while the court has the power to intervene if it appears that the public interest requires disclosure it would only be in exceptional circumstances that it would do so when it was clear the relevant official had considered the question and decided that no objection should be taken: see Sankey (at 46), per Gibbs ACJ."
Neither counsel had yet noticed that recent case and so I adjourned the hearing to see whether anybody wished to adduce evidence from the Medical Board, particularly the defendant. The defendant has not adduced any evidence from the Medical Board and I infer from that that the Board is not making any claim that the document should be subject to public interest privilege.
While other authorities have been referred to me, it does seem to me that as a Judge of this Court CTC Resources NL squarely binds me, and if the Medical Board is not concerned about the frankness of communications to it being undermined, it is difficult to see that there are any exceptional circumstances which warrant the upholding of public interest privilege and I therefore dismiss the appeal with costs.
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