Sendy v Commonwealth of Australia [2002] NSWSC 1109

New South Wales Supreme Court

CITATION : Sendy v Commonwealth of Australia [2002] NSWSC 1109 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 21148/96 HEARING DATE(S) : 20 November 2002 JUDGMENT DATE : 20 November 2002

PARTIES : John Patrick Sendy (Plaintiff) Commonwealth of Australia (Defendant) JUDGMENT OF : Dunford J

COUNSEL : PE Blacket SC / C Thomson / W Walsh (Plaintiff) CC Branson QC / DJ Brogan / IS McLachlan (Defendant) SOLICITORS : James Taylor & Co (Plaintiff) Australian Government Solicitor (Defendant) CATCHWORDS : EVIDENCE - client legal privilege - doctor interviews plaintiff to furnish report to defendant - whether plaintiff's conversation with doctor privileged - PRACTICE & PROCEDURE - doctor interviews plaintiff to furnish report to defendant - report privileged - right of plaintiff to call doctor in his case Evidence Act 1995, ss 117, 118 & 119 LEGISLATION CITED : SCR Pt 36, r 13A & Schedule K Practice Note 70 Dimkovski v Ken's Painting & Decorating Services Pty Limited & ors [2002] NSWSC 50 Chadwick v Bowman (1886) 16 QBD 561 CASES CITED : Watson v Cammell Laird & Co (Shipbuilders & Engineers) Ltd [1959] 1 WLR 702 R v P [2001] NSWCA 473, 53 NSWLR 664 Re L [1997] AC 16 DECISION : See paras 13, 14 & 21.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DUNFORD J

Wednesday, 20 NOVEMBER 2002

21148/96 John Patrick Sendy v Commonwealth of Australia

JUDGMENT 1 His Honour: The plaintiff seeks to call as a witness Dr Jonathan Phillips, a psychiatrist, who saw the plaintiff on behalf of the defendant in 1999 and furnished two medico-legal reports to the defendant's solicitor. Those reports have not been served on the plaintiff by the defendant, and when a call for their production was made on 2 July during the taking of evidence on commission objection was taken on the ground of legal professional privilege, more correctly now called "client legal privilege". 2 The consequence is that the plaintiff wishes to call Dr Phillips without knowing what is in the reports. The defendant objects to Dr Phillips being called in these circumstances on three grounds: firstly, to allow Dr Phillips to be called would be contrary to the ruling I gave on 12 September 2002 limiting the number of experts pursuant to Practice Note 70; secondly, on ground of client legal privilege; and, thirdly, because of non-compliance with Pt 36, r 13A of the Supreme Court Rules. 3 The object of Practice Note 70, as appears from its terms, is to prevent the qualification of an unnecessary number of experts and the calling of an unnecessary number of expert witnesses. As the Practice Note says: "The practice of having a large number of experts qualifying, both medical and otherwise, whose opinions are commonly overlapping and whose reports either are not used or are of little assistance to the court when tendered, is costly, time consuming and productive of delay." 4 Consequently, the Court is given a discretion to reject the tender of experts' reports or to refuse to allow the expert to be called. It was having regard to the terms of that Practice Note that I did on 12 September limit the number of experts, including the number of psychiatrists, that could be qualified and called by the plaintiff, and it is submitted that to allow Dr Phillips to give evidence will be contrary to my earlier ruling and a reversal of such ruling. 5 I do not see it that way in that to permit the plaintiff to call Dr Phillips to give evidence will not add to the number of experts qualified as he has already been qualified, albeit on behalf of the defendant. It will add to the number of witnesses called, but the defendant has been insistent on maintaining its claim for privilege, as it is entitled to, but the fact that it has been so insistent raises the possibility that the doctor formed an opinion contrary to the case of the party engaging him. If that is so, it may be, and I emphasise "may be", that his evidence will be helpful in arriving at a fair and just decision in the case. 6 In particular, the calling of Dr Phillips would not, as I see it, result in the calling of another witness whose evidence overlaps other witnesses already called or to be called. 7 The Practice Note is discretionary, and in the circumstances I feel that, notwithstanding my earlier ruling on 12 September, if the plaintiff wishes to call Dr Phillips under the circumstances in which it is able to do so, I should permit that course to be taken. I therefore reject the argument based on Practice Note 70. 8 Next, it is submitted that to allow the doctor to give evidence will result in a breach of the defendant's client legal privilege, because it is submitted that not only the contents of his reports to the defendant are privileged, but that all the intellectual property which resulted in the making of such reports is also subject to the privilege, including the history given by the plaintiff to Dr Phillips, any notes Dr Phillips made of that consultation and any opinion he formed as to the plaintiff's condition. These matters are said to be subject to the privilege because they were presumably included in the reports. 9 It has been further submitted that, if Dr Phillips expresses an opinion different to the opinion contained in his reports, it would be contrary to my earlier ruling on Practice Note 70 and a breach of Pt 36, r 13A of the Rules. 10 I turn to consider the provisions of the Evidence Act 1995. Section 117 contains definitions, including definitions of "confidential communication" and "confidential document". Sections 118 and 119 are as follows: "118 Legal Advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client or a lawyer, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.