District Court New South Wales Medium Neutral Citation: SW by her tutor TW v MK [2018] NSWDC 504 Hearing dates: 18 October 2018 Date of orders: 18 October 2018 Decision date: 18 October 2018 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Plaintiff's Amended Notice of Motion filed on 18 October 2018 is stood over to the trial with costs served to the trial judge. (2) The plaintiff be allowed to rely upon the report of Dr Rutvowski dated 4 October 2018, served on 10 October 2018. (3) Confirm hearing date of 19 November 2018. (4) Exhibits remain with the file. Catchwords: PRACTICE AND PROCEDURE – Application for a ruling pursuant to s 192A of the Evidence Act 1995 (NSW) on the admissibility of a hospital record setting out details of a conversation between the plaintiff and her solicitor – whether the discretion to make an advance evidentiary ruling should be exercised – whether sufficient information before the court to make such a ruling – trial of proceedings imminent – application stood over to the trial judge Legislation Cited: Evidence Act 1995 (NSW), s 192A Federal Court of Australia Act 1976 (Cth), s 37M Cases Cited: Bailey v Director‑General, Department of Natural Resources [2013] NSWSC 515 Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd [2017] FCA 324 Category: Procedural and other rulings Parties: Plaintiff: SW by her tutor TW Defendant: MK Representation: Counsel: Plaintiff: Mr R S McIlwaine SC / Ms N Compton Defendant: Mr J M Morris SC / Mr A J Parker Solicitors: Plaintiff: Stacks Goudkamp Defendant: McInnes Wilson File Number(s): 2017/170506 Publication restriction: None ​Judgment 1. HER HONOUR: These proceedings are fixed for hearing on 19 November 2018 for seven days. The application before me is for an advance ruling in relation to the admissibility of a particular document, namely exhibit A to the affidavit of the plaintiff's tutor, TW, which is a progress note taken by a Ms Sidharta, on or about 22 December 2015 at 17:10 in the course of her duties at Sydney Children's Hospital where the plaintiff was in hospital. I set out in the notice of motion filed on 18 October 2018 and are as follows: 1. The matter be listed for hearing seeking an advance ruling pursuant to s 192A of the Evidence Act 1995 (NSW) on the admissibility of a document. 2. The preliminary question listed or hearing with a one hour estimate. 3. That the document identified in the affidavit of TW sworn on 10 October 2018 as annexure A dated 22 December 2015 not be adduced in evidence in these proceedings pursuant to s 118 of the Evidence Act 1995 (NSW). 4. Costs of this motion to be costs in the course. 5. Such other order as the Court sees fit. 1. This is a claim for personal injury damages arising from a motor vehicle accident where the plaintiff, who is aged 15, suffered serious injuries, including quadriplegia for which she was treated at the Sydney Children's Hospital at Randwick where she was admitted after the accident. The circumstances of the accident should briefly be noted. The plaintiff was a passenger in the defendant's taxi along with three other persons. 2. In the statement of claim, the plaintiff alleges the defendant drove with insufficient care while she was alighting from the vehicle and that she appears to have been dragged from the vehicle. The defendant says that he was threatened with a knife by the plaintiff, and that he threw the money at her, panicked and accelerated as the plaintiff was getting out of the car, according to the outline of submissions helpfully provided to me by Mr Morris SC. I note also that there is a defence of joint illegal enterprise, which I gather is the common law defence and not the statutory defence. 3. Several preliminary issues arise. The first of these is whether the hearing before me is of an interlocutory nature as suggested in Mr Morris SC's submissions, or of a final nature. This being relevant to two issues. One being the relevant provisions of the Evidence Act 1995 (NSW) which would apply. The second being the principles of legal professional privilege to apply. The second, which is also referred to in Mr Morris SC's submissions at paragraph 3, and was the subject of submissions after I had invited the parties to contend to this issue, was whether the Court should exercise its discretion to give a ruling or make a finding under s 192A. 4. Section 192A Evidence Act 1995 (NSW) provides: "192A Advance rulings and findings Where a question arises in any proceedings, being a question about: (a) the admissibility or use of evidence proposed to be adduced, or (b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or (c) the giving of leave, permission or direction under section 192, the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings." 1. This section may be used to obtain an advance ruling is helpfully summarised by Garling J in Bailey v Director‑General, Department of Natural Resources [2013] NSWSC 515. A statement of the relevant principles which was adopted and referred to in Australian Securities and Investments Commission, in the matter of Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd [2017] FCA 324 at [21]ff. 2. The language of both is the same because Gleeson J adopted the same words used by Garling J, but for the sake of convenience, I will refer to Garling J's statement of the law at [55] of his Honour's judgment, which is more or less identical to [21]. Essentially that is that while s 192A Evidence Act 1995 (NSW) permits, it does not compel advance rulings to be given on admissibility of evidence. As Garling J goes on to note, "[t]here may be sound discretionary considerations that lead a Court to make or decline an advance ruling under s 192A." 3. As Gleeson J adds in his discussion of these principles (at [21]-[24]), those sound reasons include a consideration of case management issues under the relevant legislation (in those proceedings, s 37M of the Federal Court of Australia Act 1976 (Cth)), but in the proceedings before me ss 56 - 62 of the Civil Procedure Act 2005; namely, the need to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. His Honour explained: "[21] Section 192A permits, but does not compel, advance rulings to be given on the admissibility of evidence: Bailey v Director General, Department of Natural Resources [2013] NSWSC 515 at [55]. Whether the Court should make an advance ruling is "a discretionary case management decision": NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000 (No 4) [2012] NSWLEC 120 at [40]; Beslic v MLC Ltd [2015] NSWSC 908 ("Beslic") at [33]. In this Court, that directs attention to the overarching purpose identified in s 37M of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act"), namely to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. [22] The authorities indicate that "some good reason should be advanced in order that the Court exercise jurisdiction under s 192A": Beslic at [33], quoting Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953 at [13]. It may, for example, be appropriate to give an advance ruling "if all matters relevant to the issue have been or can then be ascertained and if it is clear that a ruling will inevitably be required": TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [42] (Gaudron J). Further, the giving of a ruling, or the making of a finding, under s 192A may be appropriate where "a considerable amount of time, effort and money might be saved if the documents were ruled to be admissible now": ACCC v Allphones Retail Pty Ltd (No 3) [2009] FCA 1075; (2009) 259 ALR 541 at [12]. [23] In some cases, trial preparation may be assisted by an evidentiary ruling in advance of the trial, so as to justify departure from the procedure in the ordinary case of dealing with objections at or shortly before the hearing: Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185; (2012) 127 ALD 288 at [25]. [24] A sound reason to refuse to give a ruling under s 192A may exist where the proceeding is in its infancy, the issues have not yet been joined because the pleadings have not closed, and it is uncertain whether the evidence sought to be the subject of the advance ruling will be relied upon at final hearing: cf. Trusted Cloud Pty Ltd v Core Desktop Pty Ltd [2015] FCA 33 at [56] to [57]." 1. In the present case, I particularly note the relevance of [56] of Garling J's judgment, which is as follows: "One of discretionary considerations to be taken into account, where relevant, is whether there is a risk of assumptions which are made about evidence to be given in a case prove ultimately not to be correct in light of the way in which a case is, in fact, presented. These decisions are usually made in the course of the case." 1. That is my concern here. Whereas a number of the decisions on this issue deal with preliminary findings which are necessary for the purpose of the future conduct of the case, this is a these are proceedings which are listed for hearing little more than a few weeks away, in circumstances where I am asked to make assumptions about the evidence which would otherwise have been given at trial. 2. Some part of this evidence is before me in the form of affidavits of the tutor and of Mr Goudkamp (exhibits A, B and C), where each candidly states ‑ and I note that each of them is candidly stated in cross‑examination that they have no recollection of whether or not the note, the subject of this application, was made by the person in question while that person was in the room. However, I have not had the benefit of hearing from, for example, the maker of the note, who may or may not be called at the trial, to say what happened. 3. What I do have is a frank and very proper acknowledgment from Mr Goudkamp that he does not know if this file note was generated in the course of the interview or in some subsequent discussion, and I note this is the case with his client as well. 4. While I am invited to draw conclusions from the construct of the note and from the time, which I note was a time in the afternoon of that day, which is suggested that that is the case, I see a real risk in determining this issue now as opposed to doing so in the course of the trial. There are, however, other factors which I need to take into account. It was put to me that the reason for this application being brought before me was that there were already too many issues in the trial, and that this was an issue which was appropriate for me to deal with separately. 5. It is clear to me from the submissions before me that this is the central issue in the trial, and I am cognisant of Mr Morris SC's submissions that significant prejudice flows to the defendant when dealing with this application in an advance ruling at the trial. I note in particular that there is a great deal of evidence before me in relation to waiver. This is set out in a lengthy affidavit from Mr Renshaw, the solicitor on record for the defendant, and it was really in the perusal of these documents that I came to the view that there were disputed issues of fact going to waiver which could well loom large at a trial where evidence was given. 6. There are approximately a dozen documents to which I was taken by Mr Morris SC in the course of his submissions. While I particularly note that some of these documents predate the issuing of the subpoena, which resulted in production of the document in question and can be disregarded, the fact remains that the document that is now the subject of the claim for privilege was produced in answer to a subpoena issued on 24 August 2017 with the first return date of 11 September 2017; that on 14 September 2017, Assistant Registrar O'Connell granted the plaintiff first access; that there was correspondence at that time, albeit about other documents about any claim for privilege; that there is no evidence before me from the plaintiff to explain the delay or why privilege was not claimed at the time; that this was clearly an issue at the forefront of the minds of the parties when one looks at the letter dated 4 December 2017 sent by Mr Goudkamp, which is set out at p 30 of Mr Renshaw's affidavit; that it seems relatively clear to me, although this may not be the case at trial, that this document was sent to the jointly retained expert Mr Defina on or about 18 May 2018; that Mr Defina referred, in fact, to part of this document when he referred to cannabis ingestion prior to the incident (see p 52 of the affidavit of Mr Renshaw), and that what appears to have triggered this application was the notice to admit facts being served on 21 November seeking admissions in accordance with the sorry, as is set out on p 61 of the annexures to Mr Renshaw's affidavit. 7. The questions of privilege and waiver, it seems to me, are disputed issues of fact which are best left to the trial judge. There are many reasons for this, only one of which is the submission by Mr Morris SC at paragraph 45 of his written submissions. The tender in question has not get taken place, and perhaps unconsciously quoting Garling J in Bailey v Director‑General, Department of Natural Resources, Mr Morris SC notes that "events may occur during the trial that may affect the issue of the existence of privilege or issues of waiver." It was for that reason that he submitted this application was "misconceived" (paragraph 45). 8. Whether or not this document was prepared in the course of the social worker taking notes during the interview and, if so, whether or not privilege was lost for any reason, or alternatively waived, are matters which in my view are best left to the trial judge. The alternate submission put by Mr Morris SC in his final paragraph of submissions; namely, that the application should be stood over to the trial with costs reserved, seems to me an eminently sensible one in those circumstances. 9. I have done my best in the time available to determine whether I can arrive at a final conclusion as to whether or not this document was made on an occasion protected by privilege, and if so, whether that privilege was waived. It seems to me that the risk of my making precisely the kind of error identified by Garling J is such that I should accede to the alternate proposal put forward by Mr Morris SC. 10. Before I making those final orders, I will hear from the parties as to whether there is any further that they wish to say, and, in particular, as to whether Mr Morris SC has changed his mind about the costs being reserved at the trial. HER HONOUR: Do you have anything to say, Mr Morris, about that? [Discussion as to orders] Orders 1. The orders I will make are: 1. Plaintiff's Amended Notice of Motion filed on 18 October 2018 is stood over to the trial with costs served to the trial judge. 2. The plaintiff be allowed to rely upon the report of Dr Rutvowski dated 4 October 2018, served on 10 October 2018. 3. Confirm hearing date of 19 November 2018. 4. Exhibits remain with the file. ********** 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: 12 June 2019