Zreik v Willsher
[2020] WADC 77
•11 JUNE 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: ZREIK -v- WILLSHER [2020] WADC 77
CORAM: DEPUTY REGISTRAR HEWITT
HEARD: 28 MAY 2020
DELIVERED : 11 JUNE 2020
FILE NO/S: CIVO 59 of 2020
BETWEEN: MOUNA ZREIK
Applicant
AND
PETER WILLSHER
Respondent
Catchwords:
Practice and procedure - Application for extension of time under Limitation Act - Production of documents - Legal professional privilege
Legislation:
Limitation Act 2005 (WA)
Result:
Certain document to be produced
Representation:
Counsel:
| Applicant | : | Mr M A Tedeschi |
| Respondent | : | Ms M Naylor |
Solicitors:
| Applicant | : | Vertannes Georgiou Lawyers (Perth) |
| Respondent | : | Tottle Partners |
Case(s) referred to in decision(s):
Nil
DEPUTY REGISTRAR HEWITT:
In late 2014 the plaintiff underwent a mammogram of her right breast which indicated a potential cancer. On 12 December 2014 the lump was removed surgically and tested for malignancies. Those tests indicated the plaintiff had cancer. The plaintiff was then referred to a Dr Peter Willsher who undertook further surgery including a double mastectomy. The plaintiff was then referred to Mr Ian Timms to perform reconstructive surgery. Those procedures were undertaken in 2015. The plaintiff suffered a number of complications and problems as a consequence of which the plaintiff engaged Messrs Slater and Gordon in November 2016 and that firm undertook to obtain the plaintiff's medical records and when that task was undertaken the firm wrote to a plastic surgeon for a report. Further information was required by the plastic surgeon and as a result of the advice received from the plastic surgeon the plaintiff instructed Messrs Slater and Gordon to commence proceedings against Mr Timms. That action was commenced on 14 May 2018. Subsequent to the commencement of the action the plaintiff instructed Messrs Slater and Gordon to obtain a further report on this occasion from Professor H Carmalt of Sydney. That report was received on 7 January 2019. Within it was information suggesting that Dr Willsher had also been negligent in the treatment of the plaintiff.
The limitation period in relation to a claim for damages for personal injuries is three years and as a consequence if the plaintiff wishes to commence an action against Mr Willsher it would be necessary for her to obtain an extension of time under the provisions of s 39 of the Limitation Act 2005 (WA). Relevantly, that section provides as follows:
39.Court may extend time to commence actions for personal injury or under Fatal Accidents Act 1959
(1) A plaintiff may apply to a court for leave to commence an action for damages relating to a personal injury to a person even though the limitation period provided for under this Act has expired.
(2) A plaintiff may apply to a court for leave to commence an action under the Fatal Accidents Act 1959 for damages relating to the death of a person even though the limitation period provided for under this Act has expired.
(3) On an application a court may extend the time in which the action can be commenced if the court is satisfied that, when the limitation period expired, a person to whom the cause of action accrues -
(a) was not aware of the physical cause of the death or injury;
(b) was aware of the physical cause of the death or injury but was not aware that the death or injury was attributable to the conduct of a person; or
(c) was aware of the physical cause of the death or injury and that the death or injury was attributable to the conduct of a person but after reasonable enquiry, had been unable to establish that person's identity.
(4) On an application a court may extent the time in which the action can be commenced up to 3 years from when a person to whom the cause of action accrues became aware, or ought reasonably to have become aware -
(a) of the physical cause of the death or injury;
(b) that the death or injury was attributable to the conduct of a person (whether a defendant or not); and
(c)of the identity of the person mentioned in paragraph (b).
…
That application has been set down for a hearing before a judge later this year. The matter with which I am required to deal arises from the respondent's chamber summons for production of documentation dated 1 May. The summons is in the following terms:
1. Pursuant to Order 58 Rule 27(1) of the Rules of the Supreme Court 1971, the applicant must produce the following documents to the respondent by 27 May 2020:
(a) documents recording any communications between Slater and Gordon and Ms Zreik, relating or referring to proposed or possible commencement by Ms Zreik of legal proceedings relating to the surgical and radiological treatment of her breast cancer, and breast reconstruction procedures;
(b)documents recording any communications between Slater and Gordon and any barrister, and relating or referring to proposed or possible commencement by the Ms Zreik of legal proceedings relating to the surgical and radiological treatment of her breast cancer and breast reconstructions procedures;
(c)documents recording any communications between Slater and Gordon and any expert, and relating or referring to proposed or possible commencement by the Ms Zreik of legal proceedings relating to the surgical and radiological treatment of her breast cancer and breast reconstructions procedures;
(d)letter of instruction to the expert, Mr John Giles, and documents recording any communication between Mr Giles and Slater and Gordon in relation to the opinion sought on behalf of Ms Zreik, including but not limited to notes of the teleconference between Mr Giles, Cassandra Hubert of Slater and Gordon, and Ms Zreik on 6 February 2018;
(e)any report of Mr Giles, and/or any documents recording any of Mr Giles' views in relation to the opinion sought by Slater an Gordon on behalf of Ms Zreik;
(f)letter of instruction to the expert, Professor Carmalt, including a list of material provided to Professor Carmalt for review;
(g)documents recording any communication between Professor Carmalt and Slater and Gordon and/or Ms Zreik, in relation to his opinion;
(h)Mr Reuven Gurfinkle's clinical records for Ms Zreik, including but not limited to attendance notes, pathology reports, and correspondence between Mr Gurfinkle and Ms Zreik, and Mr Reuven Gurfinkle and any other party.
Rule 27 of O 58 is couched in the following terms:
27. Directions as to hearings, evidence etc.
(1) if an originating summons is not disposed of altogether on the first hearing thereof, the Court shall give such directions as to the further conduct of the proceedings as it thinks best adapted to securing the just, expeditious, and economical disposal thereof.
(2) The Court shall, as early in the proceedings as appears to it to be practicable, consider whether there is or may be a dispute as to fact, and whether it is expedient to hear the summons on oral evidence or mainly on oral evidence, and if it thinks fit may order that no further affidavits shall be filed and that the summons shall be heard on oral evidence, or partly on oral evidence and partly on evidence by the affidavit with or without cross-examination of any deponent, as it may direct.
It is not an issue that the court has the power to make orders for the production of documents but what is in issue is whether that power should be exercised. The matters in issue concern the plaintiff's assertion contained in par 68 of the affidavit in support in which the applicant says 'I, for the first time became aware that Mr Willsher may have been negligent in the surgery that he performed, and my subsequent treatment, when I received Carmalt's report'. The entire thrust of the respondent's chamber summons is to test the validity of that proposition. That issue, in my opinion, will be resolved by the production of the letter of instruction, which was sent to Professor Carmalt which is among a number of documents which the applicant has agreed should be produced in response to the summons. As to most of the balance the plaintiff maintains a claim of legal professional privilege. That such a claim is sustainable clear from the fact that the plaintiff engaged Messrs Slater and Gordon to advise her as to the prospects of litigation in regard to the surgical procedures.
The respondent has put in issue the proposition that the plaintiff's stated she first became aware that Mr Willsher may have been negligent on receiving the Carmalt report impliedly waives legal professional privilege in respect of any prior communication between herself and her solicitors or her solicitors and any other expert. As I have previously indicated in my view the letter of instruction to Professor Carmalt should be sufficient to answer that question and it is therefore not necessary for the plaintiff to abandon a claim for legal professional privilege of the great majority of the documents which are sought by the present application many of which, in fact most of which must be irrelevant to the plaintiff's application and some of which such as Mr Gurfinkle's (a doctor who treated the plaintiff subsequently) clinical records including but not limited to attendance notes, pathology reports and correspondence between Mr Gurfinkle and Ms Zreik and Mr Gurfinkle and any other parties are clearly an overreach and could not reasonably be said to be in the possession of the plaintiff or if they are to be relevant to the matters in issue in this application.
In short the matter comes down in my opinion to an application of common sense. Communications between client and solicitor and solicitor and client are entitled to the umbrella of protection of legal professional privilege. The concept of fairness requires that a respondent to an application such as this should have sufficient information to be able to properly prepare its defence and to the extent that information is necessary by bringing the application as she has that the applicant has in my opinion waived any proper claim to a legal professional privilege to certain of the documents. The applicant has agreed to provide the documents outlined in pars (b), (f) and (g) of the application. That concession seems to me to be quite adequate to satisfy the respondent's legitimate claim for the production of documents to enable it to properly prepare and answer the applicant's case.
A number of cases have been quoted by the respondent supporting its application but they seem to be largely concerned with the interplay between the notion of fishing and the issue of subpoenas in order to obtain information. I find those cases of little assistance in the present circumstances. In my view this application is simply a contest between the applicant's claim for legal professional privilege and the respondent's claim that the applicant must be considered to have abandoned that claim in respect of documents which in fairness it should have available to it to properly prepare its case. Accordingly, my order shall be that the plaintiff produce to the respondent the documents described in pars (b), (f) and (g) of its application. The cost of this interlocutory proceeding shall be reserved to the judge hearing the originating summons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DH
Court Officer8 JUNE 2020
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