Reported Decision : (2001) 21 NSWCCR 677 Compensation Court of New South Wales CITATION : Morrow v Brambles Australia Limited [2001] NSWCC 77 PARTIES : Dianne Morrow Brambles Australia Limited t/as Brambles Linen MATTER NUMBER(S) : 41029 of 2000 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 6/4/01, 11/5/01 EX TEMPORE JUDGMENT DATE : 05/11/2001 FOR APPLICANT: Mr T Edwards instructed by Armstrongs Solicitors LEGAL REPRESENTATIVES: FOR RESPONDENT:Mr M Newton instructed by Sparke Helmore Solicitors JUDGMENT: 1. This is a Notice of Motion seeking review of the decision of Registrar Davidson made on 6 April 2001 granting legal privilege to the respondent over two reports of Dr James Bodel dated 10 June 1997. The Motion seeks that the applicant be given access to those reports. The same relief was sought in the motion before the Registrar and was refused for reasons which appear in a very thorough and comprehensive report by Registrar Davidson dated 27 April 2001 which is attached to the file. Briefly, Registrar Davidson held that s 119 of the Evidence Act 1995 had application to what he described as these "ancillary" proceedings, referring to the fact that they were a Motion seeking access to a medical report which was ancillary to an Application for Determination before the Court as a consequence of Pt 24, r 13 and Pt 1 r 5 of the Compensation Court Rules. This view, if I may say so, is undoubtedly correct. 2. Registrar Davidson went on to say that s 119 of the Evidence Act had application to Dr Bodel's reports. In expressing that view in the last paragraph of his report Registrar Davidson said this: Having regard to the chronology of the earlier proceedings as disclosed in the respondent's affidavit in support (which indicated the reports were created, inter alia, after the relevant Application for Determination was filed) and to the statement in that affidavit that the reports were created for the dominant purpose of litigation, I was satisfied that the reports in question (which I examined and considered to be of a predominantly medico-legal nature) were confidential documents created for the dominant purpose of the respondent being provided with professional legal services in connection with litigation. 3. The application for review is resisted by Mr Newton, who appears for the respondent today, substantially for the same reasons as those expressed by the Registrar in his report from which I have just quoted. 4. It is important in evaluating the correctness of the Registrar's decision to note the chronology. Briefly, the application to which the Registrar would appear to be referring was that brought in Matter No 5940 of 1997 - not the present matter - and the Application for Determination which was first filed in that matter, according to the filing sticker attached to it by the Court, was filed on 10 April 1997. It seeks payment of a s 66 lump sum in respect of 20 per cent permanent impairment of the back and of a s 67 lump sum for pain and suffering in consequence of the alleged s 66 loss and s 60 expenses, as well as interest. No claim for weekly payments is mounted in that application. 5. Passing to the affidavit of Steven Churches, solicitor, sworn 18 April 2001 in support of the present application for review, Annexure A to that affidavit is a letter from the respondent itself, Brambles Australasia Limited (I note that the respondent would appear to be incorrectly named as "Brambles Australia Limited" in the Application for Determination) to the applicant dated 7 March 1997, requesting that the applicant attend appointments, all on 7 April 1997, with Drs Marsden, Bodel and Bye at various addresses in Sydney. It is important to note that this request for the applicant to attend the medical examinations was made before the filing of the first Application for Determination in Matter No 5940 of 1997 which, as I have said, was filed on 10 April 1997. 6. On 1 April 1997 Mr Churches as the applicant's solicitor wrote to the Workers Compensation Claims Manager of "Brambles Insurance Services" (presumably a division of the respondent) a letter which is Annexure B to his affidavit in support of the present application. Relevantly, he said: To ensure these appointments do not breach Pt 20 r 2 of the Rules, kindly advise the following: 1. The field of expertise of each of the doctors. 2. Why it is necessary for our client to consult with two separate medical practitioners with respect to this claim. 7. Passing to Pt 20 r 2 of the Compensation Court Rules, it reads relevantly: (1) Subject to this Rule, any party or insurer of the party may serve on a worker notice for the medical examination of the worker (2) A notice for medical examination shall be a reasonable request by the party giving the notice that the worker submit to examination by a specified medical expert at a specified place and time. (3) Except by leave of the Court, which may be given on terms, or consent of the worker, a notice shall not be given under subr(1) requesting that a worker submit to examination - (a) By a medical expert specialising in a particular field of practice if the worker has already been examined, at the request of the party giving the notice, by another medical expert specialising in that field. 8. Prima facie it would appear to me that if the examinations requested by the respondent at that time were reliant on Pt 20 r 2, they breached subr(3), leave not having been sought in accordance with the Rule because Drs Bodel and Bye, as I think I may know, are and were at the relevant time both orthopaedic surgeons, although Dr Marsden was and is a general surgeon. Faced with this conundrum, Mr Fulton, the Workers Compensation Manager of Brambles Industrial Services, wrote a letter to the applicant's solicitors dated 4 April 1997 which is Annexure C to Mr Churches' affidavit. Relevantly, he said: In reply to your questions - 1. We advise that all doctors are orthopaedic surgeons, and were chosen to present a variety of views, and on the same date to minimise the amount of inconvenience to your client. 2. The appointments were made under s 129(2) of the Workers Compensation Act 1987 and designed to look at treatment options with attention to vocational direction. 9. Apart from the fact that Dr Marsden was not in fact an orthopaedic surgeon, Mr Fulton in that letter would appear to be telling Mr Churches that he is entitled to rely on s 129(2) of the Workers Compensation Act 1987 in order to have examinations by, as he and Mr Churches thought, three orthopaedic surgeons (in fact two) and that in that manner he was entitled to circumvent the operation of Pt 20 r 2. 10. S 129 (2) of the Workers Compensation Act 1987, now repealed and re-enacted as s 119(2) of the Workplace Injury Management and Workers Compensation Act 1998 in substantially identical terms, reads: A worker receiving weekly payments of compensation under this Act shall, if so required by the employer, from time to time submit himself or herself for examination by a medical practitioner, provided and paid by the employer. 11. That confers a right on an employer to have a worker medically examined which is quite independent of the right conferred by Pt 20 r 2 from which I have quoted above and which only applies after proceedings have been commenced. That is clear because of Pt 20 r1(1) which reads: This division applies to a medical examination (other than examination by a medical referee or medical panel as provided in the 1998 Act) required, ordered or conducted for the purposes of proceedings in the Court. 12. It is to be remembered, as I have said, that proceedings in the Court were not commenced in Matter No 5940 of 1997 until the filing of the Application for Determination on 10 April 1997, which of course postdates both the original letter to the applicant of 7 March 1997, Annexure A to Mr Churches' affidavit, and the subsequent letter of 4 April 1997, which is Annexure C to Mr Churches' affidavit. Thus both the chronology of the matter, which is that proceedings in the Court had not yet commenced and thus Pt 20 r 2 could have no application anyway, and the assertion actually made in so many words in the letter of 4 April 1997 by Mr Fulton that s 129 (2) of the Workers Compensation Act 1987 was relied on, not par 20 r 2, make it clear that the only basis upon which the respondent was at that time entitled to have the applicant examined was that upon which it relied in its letter, 4 April 1997, namely s 129(2). It is important to note also that in support of its reliance on that section the respondent said in that letter that the medical appointments were "designed to look at treatment options with attention to vocational direction". 13. Mr Newton relies on the fact that on 16 May 1997 the respondent's insurer, MMI, wrote to the applicant a letter which is Exhibit 11 denying liability to make further weekly payments of compensation on the basis that the work injury she alleged having received had not caused her any incapacity for work. The opinion was said to be based on medical evidence. It would appear abundantly clear that the medical evidence referred to is the reports of Drs Bodel, Bye and Marsden which were in all probability then available, the examinations by those doctors having been taken place on 7 April 1997, a bit over five weeks before the date of MMI's letter to the applicant of 16 May 1997. The amended Application for Determination was then filed. 14. Mr Newton draws from that letter two contentions. The first is that if s 119 of the Evidence Act is relied upon, his client must have been anticipating litigation when it required the applicant to be medically examined by the three doctors concerned, as indicated by the fact that it then proceeded to deny liability, which of course could be expected to provoke litigation. The second contention he makes is that s 118 of the Evidence Act applies anyway, even if s 119 does not, because the dominant purpose of his client obtaining these medical examinations was to obtain legal advice from its present solicitors who instruct Mr Newton. 15. On careful reflection, I do not think that either of these arguments can be supported. The fact that liability was not denied until after the medical examinations took place would suggest that their purpose was to allow the respondent and/or its insurer to advise itself on whether liability should be accepted or denied, not to prepare itself for litigation, which of course would not take place unless and until liability was denied. 16. An argument is available, of course, that litigation could be anticipated, claiming s 66 and s 67 lump sums, because as Mr Churches' affidavit establishes in par 5, on or about 12 December 1996 the applicant duly made a claim for lump sum benefits pursuant to s 66 of the Act in respect of a 20 per cent permanent impairment of the back. However, the affidavit does not disclose any denial of liability by the respondent in respect of that claim before the commencement of proceedings by the filing of the Application for Determination in Matter No 5940 of 1997. Mr Churches' affidavit asserts that this Application was filed on or about 8 April 1997 but, as I have said, the filing sticker says that it was filed on 10 April 1997. One way or the other, it postdates the respondent's request for medical examination which was on 7 March 1997, and indeed Brambles' letter to the applicant's solicitors of 4 April 1997, both of which are quoted from above. 17. Mr Churches' affidavit simply says in par 6 that as the s 66 claim which had been duly made was not met, proceedings were commenced by way of an Application for Determination on or about 8 April 1997 (as I said, probably in fact on 10 April 1997). The irresistible inference is that the respondent, by having the applicant medically examined by the three doctors concerned, was advising itself as to whether the s 66 claim it had received should be met, as well as whether weekly payments ought be continued. If that were so, the respondent did not know at the time it requested the medical examinations whether the s 66 claims were to be met or not. How then can it be said that it was either anticipating litigation (s 119 of the Evidence Act ) or seeking medical examination for the dominant purpose of obtaining legal advice (s 118)? The dominant purpose of the medical examinations would appear to me to have been for the respondent to advise itself about whether the applicant's s 66 and possibly his s 67 claims should be met and whether weekly payments ought be continued. 18. Be that as it may, Mr Fulton in writing the letter of 4 April 1997 to the applicant's solicitors for the respondent was at pains to point out that s 129(2) of the Workers Compensation Act 1997 entitled his client to have the applicant medically examined - whatever Pt 20 r 2 says - because the purpose of the examinations was to "look at treatment options with attention to vocational direction", to quote his letter. Thus, on his own assertion, Mr Fulton on behalf of the respondent was not relying on Pt 20 r 2, and specifically asserted a purpose other than litigation, or anticipated litigation, as underlying his entitlement to the medical examinations, as of course he was entitled to do because of the words of s 129(2) as it then stood. 19. In those circumstances, s 118 and s 119 of the Evidence Act do not have any application to the reports of Dr Bodel to which access is sought. Thus I regretfully conclude that the Registrar's decision was incorrect and I discharge it, and I grant the applicant access to the reports of Dr Bodel referred to in the motion. 20. I have heard Mr Newton as to the question of costs, which he points out are discretionary, but there seems to me in this case no reason to depart from the ordinary practice, which is to order that the respondent pay the applicant's costs of this motion as agreed or assessed, and I so order. I certify to counsel's fees on a motion basis. Mr T Edwards instructed by Armstrongs Solicitors appeared for the applicant Mr M Newton instructed by Sparke Helmore Solicitors appeared for the respondent DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.