District Court New South Wales Medium Neutral Citation: Cole v Corinthian Industries (Australia) Pty Ltd [2014] NSWDC 138 Hearing dates: 28/07/2014 Decision date: 28 July 2014 Before: Neilson DCJ Decision: Claim for legal professional privilege upheld Catchwords: LITIGATION - PRIVILEGE - Plaintiff sought access to report of doctor qualified by the defendant - Report not tendered - Defendant claimed legal professional privilege Legislation Cited: Uniform Civil Procedure Rules 2005 Workers Compensation Act 1987 Workers Compensation Amendment (Further Transition) Regulation 2012 Workers Compensation Regulation 2010 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804 Category: Interlocutory applications Parties: Leigh Cole (Applicant) Corinthian Industries (Australia) Pty Ltd (Respondent) Representation: Solicitors Curwoods Lawyers (Applicant) Firths Lawyers (Respondent) Counsel Mr R Cavangh SC (Applicant) Mr J Callaway (Applicant) Mr J Ryan (Respondent) File Number(s): 2013/334831 Publication restriction: No Judgment 1HIS HONOUR: The current proceedings were commenced by a statement of claim filed on 6 November 2013. In the statement of claim the plaintiff claims damages for, essentially, an injury to his lower back occurring on 2 September 2009. The plaintiff's damages are governed by the workers' compensation legislation of this State as the defendant in these proceedings was the plaintiff's employer. There is no dispute that the plaintiff's injury arose out of and in the course of his employment with the defendant. I am told that liability is admitted. The only question currently before Gibb J is an assessment of the plaintiff's claim for damages. 2Under the workers' compensation legislation the plaintiff's damages are limited to the recovery of his past and future economic loss. The defendant, through Messrs Curwoods, filed a defence on 4 December 2013. Since that time Messrs Curwoods have acted for the defendant. On 13 September 2013 Messrs Curwoods wrote a letter to Dr V Casikar. Documentary evidence before me suggests that Dr Casikar is a neurologist. I have also been told that he is a neurosurgeon. In the medical hierarchy a neurosurgeon is greater than a neurologist. In the qualifying letter Messrs Curwoods told the doctor that they acted "for the respondent" when in fact they were acting for the proposed defendant. In the former Compensation Court of New South Wales the parties were called an applicant and a respondent, and I understand that terminology to be continued in the Workers Compensation Commission. However the document goes onto refer to the plaintiff as "the plaintiff" which clearly indicates that they, the solicitors, were acting in the anticipated common law proceedings. 3Amongst other things the letter points out that the plaintiff was making "a claim for a mattress pursuant to s 60 of the Workers Compensation Act 1987 as a result of his alleged work injury". The letter then goes on to request the doctor to provide a report containing the sort of things that one would expect a medical practitioner to include in a report: a history, the findings on examination, a diagnosis, any recommendations as to future treatment, the relationship between the alleged injury and the medical condition diagnosed by the doctor and a prognosis. However the letter in a paragraph number 9 speaks about the claim for a mattress under s 60 of the Workers Compensation Act. 4The letter ends with an enclosure of the expert witness code of conduct as required under the Uniform Civil Procedure Rules but then asks that the doctor send his bill for the report to the insurer of the defendant whose details and reference are then given. I had initially determined to make that document part of MFI 1 but it should be separately exhibited because it is clear that privilege cannot be claimed over that letter because the report made by the medical practitioner was served upon the plaintiff's solicitor on 10 October 2013. The copy letters from Messrs Curwoods to Dr Casikar of 13 September 2013 and the letter to Messrs Firths of 10 October 2013 will be marked for identification 2. As ought be apparent from what I have immediately said, the report of Dr Casikar following upon his examination of the plaintiff on 3 October 2013 was served upon the plaintiff's solicitors in connection with these proceedings. It also appears to have been separately served upon the plaintiff by the insurer of the defendant in its role as the administrator of the plaintiff's workers compensation claim. 5There were placed before Gibb DCJ two letters from QBE to the plaintiff, one of which is marked voir dire exhibit 4 and the second of which was marked voir dire exhibit 1. The first letter comments upon the plaintiff's workers claim for weekly payments, of the making of an assessment of the plaintiff's future benefits pursuant to cl 22 of the Workers Compensation Amendment (Further Transition) Regulation 2012 and stating that the plaintiff's benefits would be reduced to $758.80 per week with effect from 29 February 2014. The letter indicates that QBE was "currently seeking additional information from Dr Casikar pertaining to your capacity for employment in relation to your work related injury" but there is no indication by QBE that they had determined to qualify Dr Casikar themselves directly. It may well be that only a communication in writing or orally was made to the doctor asking him to comment on some aspect of the plaintiff's ability to work. 6The second communication to the plaintiff from QBE bears date 10 December 2013 and purports to be a decision declining further liability for the plaintiff's claim for treatment expenses pursuant to s 60 of the Workers Compensation Act 1987. The plaintiff was advised of his ability to request a review directly from the insurer or to take any dispute to the Workers Compensation Commission. It is completely understandable that the QBE would have been provided by Curwoods with Dr Casikar's report of 3 October 2013 shortly after it was generated, perhaps with a letter of advice. It is also possible, of course, that Dr Casikar directly sent a copy of his report to the insurer, who was asked to pay for it. 7It is clear that the insurer, in the administration of the plaintiff's workers compensation claim, used Dr Casikar's report in order to make some determination about the plaintiff's claim for weekly payments of compensation. It is also clear from voir dire exhibit 1, that the insurer also made reliance on Dr Casikar's report in electing to decline further liability for payment of the plaintiff's expenses under s 60 of the Workers Compensation Act 1987. 8However, on 7 April 2014 Messrs Curwoods again wrote to Dr Casikar asking him to reexamine the plaintiff on Thursday, 22 May 2014. The letter, which is MFI 1 and the subject of legal professional privilege by the defendant, is the very sort of letter that one would expect any solicitor acting for a defendant in a personal injury action to send to a doctor whom he was qualifying. 9The plaintiff takes the point that, because I disclosed some matter to the plaintiff in argument, the letter asks for comment on such things as the plaintiff's need for treatment and the like but for which the plaintiff is unable to recover damages from his employer but it would still be a reasonable question to ask in any standard letter addressed to a doctor in connection with personal injury litigation. It is only claims by injured workers against their employers that do not carry the ability to recover outstanding or future outofpocket expenses. 10Dr Casikar's report, following upon his examination of 22 May 2014, is clearly capable of being the subject of legal professional privilege. That claim is made by the defendant's solicitors. They also claim legal professional privilege in respect of the letter qualifying the doctor bearing date 22 May 2014, which, as I have already, said is MFI 1. 11There is no suggestion that the defendant has waived the privilege in any way by, for example, sending a copy of the report to the plaintiff's solicitors or sending a copy directly to the plaintiff or making it available to the insurer, which has used it in some fashion to affect the plaintiff's workers compensation claim. 12I have been referred by learned senior counsel for the plaintiff to the decision of Lindgren J in Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804, in which his Honour sets out at [21] six principles relating to claims for legal professional privilege concerning reports and documents sent to those who make reports. None of those principles is here directly relevant. 13The defendant, as I have earlier said, served Dr Casikar's first report upon the plaintiff. The defendant does not wish to serve upon the plaintiff Dr Casikar's second report. If the plaintiff wished to call Dr Casikar to give viva voce evidence or intended to tender his report the Court would not permit that to occur, bearing in mind that the defendant has not served the doctor's second report. Indeed the defendant acknowledges that by telling the Court that the defendant will not be seeking to rely upon Dr Casikar's first report. It will not be tendering it, nor will Dr Casikar be called to give oral evidence. 14The plaintiff however relies upon the provisions of the workers' compensation legislation to maintain that the claim for legal professional privilege is somehow waived or defeated. The plaintiff relies upon s 73 Workplace Injury Management and Workers Compensation Act 1998. 15Section 73(1) is in the following terms: "The regulations may make provision for or with respect to requiring an insurer to provide a worker, a worker's legal representative or any other person with a copy of a specified report, or a report of a specified kind, obtained by the insurer in relation to a claim by the worker." Subsection (2) provides that the kinds of reports to which the regulations may make provision "include investigator's reports, rehabilitation providers' reports and reports of assessments made of incapacitated worker's ability to earn." Section 73(3) provides for a mechanism where an "insurer fails to provide a copy of a report as required by the regulations". Everything hinges, therefore, on the Regulation. 16The relevant regulation is Workers Compensation Regulation 2010, cl 46. Clause 46(1) makes the clause apply to a number of types of reports. They include medical reports. Dr Casikar's second report is a medical report. Subclause (2) is in the following terms: "This clause applies to the following decisions of an employer or insurer relating to an injured worker: (a) a decision to dispute liability in respect of a claim, or any aspect of a claim (in circumstances requiring the insurer to give the worker a notice and reasons under s 74 of the 1998 Act), (b) a decision to discontinue payment, or to reduce the amount of weekly benefits (in circumstances requiring the insurer to give the worker a notice of intention under s 54 of the 1987 Act), (c) a decision on the review under s 287A of the 1998 Act of a decision described in paragraph (a) or (b) that confirms the original decision." The substantive provision is in subcl (3). It provides that where an "insurer makes a decision to which this clause applies, the insurer must provide a copy of any relevant report to which this clause applies to the worker, as an attachment to a notice under s 74 of the 1998 Act, s 54 of the 1987 Act or s 287A of the 1998 Act, as the case may be", with certain exceptions not currently relevant. 17I am completely unaware of any use of Dr Casikar's second report by the current defendant, by the current defendant's solicitor or by the current defendant's insurer in connection with the plaintiff's claim for workers' compensation in any relevant decision falling within cl 46(2) which requires the current defendant to serve the doctor's second report upon the plaintiff in accordance with cl 46(3). 18In those circumstances, I cannot see how the defendant's claim for legal professional privilege in respect of the doctor's second report is overcome by operation of law. Furthermore, the submissions put to me on behalf of the plaintiff largely conflate procedures under a worker's compensation claim, with proceedings in an action for damages in this Court, as if they are one and the same thing. They might be, to an extent, but procedurally they are very different. Again, there is nothing in cl 46 of the Workers Compensation Regulation 2010 that requires the service of Dr Casikar's second report under s 73 of the 1998 Act. 19I therefore uphold the defendant's claim for legal professional privilege in respect of Dr Casikar's report following upon his examination of the plaintiff on 22 May 2014. It is with much gladness that I return the matter to Gibb DCJ. ********** 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. Decision last updated: 27 August 2014