WorkCover Queensland v Jones - [2009] QDC 274

[2009] QDC 274

DISTRICT COURT

CIVIL JURISDICTION

JUDGE RACKEMANN

No 1856 of 2009

WORKCOVER QUEENSLAND	Applicant
and
BRETT SHANE JONES	Respondent

BRISBANE

DATE 24/07/2009

JUDGMENT

HIS HONOUR: The applicant seeks an order that the respondent give it a copy of a "relevant document" pursuant to section 279 of the Workers' Compensation and Rehabilitation Act 2003. The respondent resists that order on the basis of a claim of legal professional privilege.

Section 279 of the Act provides, in part, as follows:

"279 - Parties to co-operate
(1) The parties must co-operate in relation to a claim, in particular by -

(a) giving each other copies of relevant documents
about -
(i) the circumstances of the event resulting in the injury; or
(ii) the worker's injury; or
(iii) the worker's prospects of rehabilitation; and
...

(6) In this section -
'Relevant documents' means reports and other documentary material, including written statements made by the claimant, the worker's employer, a contributor or by witnesses."

Section 284 provides, in part, as follows:

"284 - Non-disclosure of certain material
(1) A party is not obliged to disclose information or a document if the information or document is protected by legal professional privilege.
(2) However, the following must be disclosed even though otherwise protected by legal professional privilege -
           (a) investigative reports;
           (b) medical reports;
           (c) reports relevant to the worker's rehabilitation;

(d) relevant documents mentioned in section 279 other than correspondence between a party and the party's lawyer."

It will be seen that, by reason of section 284(2)(d), relevant documents mentioned in section 279, other than correspondence between a party and the party's lawyer, must be disclosed even though they are otherwise protected by legal professional privilege.

It is common ground that the document in question is one to which legal professional privilege would ordinarily attach, but is also a "relevant document" mentioned in section 279, being a written statement made by the claimant about one or more of the things referred to in section 279(1)(a). The only issue or controversy between the parties is whether it is also "correspondence between a party and the party's lawyer", so as to fall within the limited exception to the duty to disclose relevant documents.

Counsel for the respondent relied upon dictionary definitions to submit that the document in question falls within the literal meaning of the expression "correspondence" and in particular, that it is a letter from the claimant to his solicitor.
The document was provided to the Court for the purposes of determining this issue. It does not, on its face, have the character of a letter or correspondence otherwise. It is headed, "Statement of Brett Shane Jones". The name of the matter follows and then a subheading, "Taken by Stephen Kelly on 15 August 2008". The affidavit of Mr Splatt establishes that, on the 15th of August, he directed Mr Stephen Kelly, an agent of his firm, to take a draft liability statement/instructions sheet from the respondent.

The document which is, I was informed, in…

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.

Continue reading WorkCover Queensland v Jones

Details

AGLC: WorkCover Queensland v Jones [2009] QDC 274
Case: [2009] QDC 274
Decision Date: 27 July 2009

CaseChat Overview and Summary

WorkCover Queensland applied for an order that Brett Shane Jones provide a copy of a document pursuant to section 279 of the Workers' Compensation and Rehabilitation Act 2003. Jones resisted the order, claiming the document was protected by legal professional privilege. Section 279 of the Act requires parties to cooperate in relation to a claim, including by providing each other with relevant documents. Section 284 provides that parties are not obliged to disclose information protected by legal professional privilege, except for certain types of reports and documents. The document in question was a written statement by Jones about the circumstances of the event resulting in his injury, and therefore a relevant document under section 279. However, it was also correspondence between Jones and his lawyer, so the question was whether it was exempt from disclosure under section 284(2)(d). The court found that the document was a statement, not correspondence, and therefore not exempt from disclosure. The court also found that even if it were correspondence, it should not be interpreted so liberally as to convert a disclosable statement into non-disclosable correspondence simply by the means of delivery. The court ordered disclosure of the statement.

The court refused to order costs for the proceedings, as it was not satisfied that the application had been brought because of unreasonable delay by Jones. The court found that the application was brought because of a dispute over whether the document was disclosable, which was arguable. The court had discretion to order costs, but would have declined to exercise it in any event.

Orders