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: "does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made .... under compulsion of law ... ". 6 The respondent submits that the disclosure in question was made under compulsion of law. 7 An affidavit of a solicitor acting for the respondent records that he caused the reports in question "to be served in compliance with orders or directions of the Court dated 23 April 2003 and SCR Part 36, Rule 13A". 8 The Court records show that on 23 April 2003 Deputy Registrar Younes, on the occasion of a differential case management status conference, gave directions for the taking of a number of procedural steps, including: "8. The plaintiff shall serve all experts' reports to be relied upon at the trial on or before 4 July 2003; 9. The first and second defendants shall file land serve all affidavits in reply to be relied upon at the trial on or before 1 August 2003." 9 The appellant submits that the directions were given by consent. Assuming that much, they were still the directions of the Court, so that the submission that the reports were not served under compulsion of law is unpersuasive. A direction given by consent or an order made by consent is binding in much the same way as a judgment given by consent is binding. It does not seem to me to be significant in this context, that the respondent at that stage had the right to elect whether or not to serve particular reports being held or that might at any stage before trial, and perhaps up until the moment during the trial when he closed his case elect to rely or not rely upon the reports or either of them. The substance of the direction given was that the relevant parties had to serve any reports that they might rely upon at the trial. 10 Nor does it seem to me to be significant that the respondent might be able to apply successfully to vary the directions that were given unless and until they are varied by the directions of the Court. It can hardly be right to think that litigants, in cases like this, who comply with the directions of the Court, do so voluntarily, rather than under compulsion of law. 11 In addition, I consider that Part 36 Rule 13A compelled the respondent to serve the reports in question if it proposed to use them at trial, and it is not to the point that there is power in the Court to make an order "otherwise". 12 At common law there was no such requirement, but over a period of decades courts have made rules having the practical effect of requiring the disclosure before trial of matters such as I have mentioned, and the present rule exists to compel this kind of disclosure. 13 Again, I do not think it is accurate to say that compliance with the rule means that disclosure made under it is voluntary, and not disclosure under compulsion of law. Further still, there is an obligation effectively imposed upon any party who wishes to tender a report of an expert witness, to comply with the provisions of the expert witness code of conduct, which requires the witness to disclose such matters as are now under consideration. 14 The decisions of the Court of Appeal in Akins v Abigroup Ltd (1998) 43 NSWLR 539, Sevic v Roarty (1998) 44 NSWLR 287 and Dubbo City Council v Barrett [2003] NSWCA 267 all seem to me to point in this direction. 15 For the appellant, Mr Baras submits that these decisions turn upon their facts, which were distinguishable from the facts of the present case. I accept that one can distinguish between the facts in these three cases and in the present case, but I do not accept that there is a relevant distinguishing feature so far as concerned the law to be applied (see Akins at 551. This was applied by concession in Sevic as noted there at 203, and adopted in Dubbo City Council at 15 to 17). 16 What evidence there was, was all the one way. The reports were served because of the directions of the Court and the provisions of the rules, and there appears to have been no debate about that matter before the Master. It is true enough, as the appellant submitted, that the directions given, and the rule mentioned do not provide sanctions for non-compliance, at least in the same sense as in a statute, which might impose a sanction for identified offences. But I do not accept that this means that compliance with the directions given or compliance with the rules means that what is done by way of compliance is not done under compulsion of law. 17 The appellant then submitted that considerations of fairness mean that the respondent had waived the privilege that attached to the reports, and to the documents referred to in the reports, referring to the substantive rights concerning legal professional privilege conferred by the common law, rather than client legal privilege mentioned in the Evidence Act. 18 I have to decide an appeal brought under Part 60 Rule 10 from the decision of the Master. I do not consider that it has been shown that the Master made any error in this regard. The appellant's submissions tended to argue the question of fairness as if it was a matter for me to decide, and to focus upon what was said to be the novelty and the difficulty of the plaintiff's claim. I do not see this was put to the Master, but, in any event, the Master's view that no question of fairness would arise until Dr Milton or Professor Tennant gives evidence and refers to the documents has not been shown to be erroneous. 19 This view appears to be consistent with the fourth principle mentioned by Justice Lindgren in ASIC v Southcorp Limited [2003] FCA 804 at 21. The Master quoted that decision. The authorities that his Honour referred to appear to support what his Honour there accepted. The possible future use of the two reports in question might lead to the view being taken later that considerations of fairness would result in the conclusion that privilege has then been waived, but this stage has not yet been reached. 20 The two reports mentioned refer to other documents. These mere references do not establish that there will be unfairness to the appellant arising from the use of the reports without disclosure of the contents of the documents. That position might or might not arise, or appear to arise, later on. 21 I dismiss the appeal with costs. I certify that paragraphs 1 - 21 are a true copy of the reasons for judgment herein of the Hon. Acting Justice Brownie given on 28 October 2004 ex tempore and revised 3 November 2004 ___________________ Susan Piggott Associate 3 November 2004 Last Modified: 11/17/2004 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.