Dr Angus Mackinnon v BHP Steel (AIS) Pty Limited & Anor [2004] NSWSC 1027

New South Wales Supreme Court

CITATION : Dr Angus Mackinnon v BHP Steel (AIS) Pty Limited & Anor [2004] NSWSC 1027 HEARING DATE(S) : 28/10/04 JUDGMENT DATE : 28 October 2004 JURISDICTION: Common Law Division JUDGMENT OF : Brownie AJ DECISION : Appeal dismissed with costs.

CATCHWORDS : Evidence - privilege - waiver - whether service of a medical report, as required by the rules and/or directions of a court waives privilege in respect of a document referred to in the report - voluntary disclosure, or disclosure under compulsion of law LEGISLATION CITED : Evidence Act 1995 Supreme Court Rules 1970 (NSW) Akins & Ors v Abigroup Limited (1998) 43 NSWLR 539 CASES CITED : Australian Securities and Investments Commission v Southcorp Limited [2003] FCA 804 Dubbo City Council v Barrett [2003] NSWCA 267 Sevic v Roarty (1998) 44 NSWLR 287 Dr Angus Mackinnon (Plaintiff) PARTIES : BHP Steel (AIS) Pty Limited (First Defendant) Dalmau & Associates Pty Limited (Second Defendant) FILE NUMBER(S) : SC 020429/99 COUNSEL : Mr D E Baran (Plaintiff) Ms V Heath (First Defendant) SOLICITORS : Keddies (Plaintiff) Sparke Helmore (First Defendant)

- IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Brownie AJ

Thursday 28 October 2004 ex tempore Revised 3 November 2004

020429/99 Dr Angus Mackinnon v BHP Steel (AIS) Pty Ltd & Anor

JUDGMENT 1 This is an appeal from a decision of Master Harrison who had heard an appeal from a decision of Assistant Registrar Howe. The appellant is the plaintiff in an action for damages for a psychiatric or psychological injury said to have been suffered in the course of his employment with the respondent, the first defendant. 2 The respondent served two medical reports upon the appellant, one by Dr Milton dated 20 September 1998 and the other by Professor Tennant dated 22 June 2001. Each of these reports contained references to other documents. 3 The appellant caused subpoenas to be served upon Dr Milton and Professor Tennant requiring the production of the documents mentioned in the reports, and these documents were produced to the Court. The appellant sought access to the documents; the respondent opposed that and Assistant Registrar Howe dismissed the appellant's application. Master Harrison dismissed the appeal that she heard. 4 The first question is whether client legal privilege, which the respondent formerly enjoyed in the documents mentioned, has been waived. There is no issue but that the reports and the documents mentioned in the reports were all formerly the subject of privilege. 5 On the appellant's case, the privilege was waived when the respondent served copies of the two reports and the waiver was not only of the reports themselves but also of the documents referred to in the reports. This argument turns upon the provisions of s 122 of the Evidence Act 1995. Subsection 2 of that section provides relevantly that the division in question: