Una Cumberland v Geoffrey Stubbs [1992] ACTSC 99 (2 October 1992)

SUPREME COURT OF THE ACT

UNA CUMBERLAND v. GEOFFREY STUBBS
No. SC 415 of 1989
Number of pages - 8
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master Hogan(1)

CATCHWORDS

Practice and Procedure - subpoena to produce - inspection of documents produced - defendant's insurer - legal professional privilege - relevance - discretion.

Bulk Materials (Coal Handling) Services Pty Ltd v. Coal and Allied Operations Pty Ltd (1988) 13 NSWLR 689

Packer v. Deputy Commissioner of Taxation (Qld) (1984) 55 ALR 242

HEARING

CANBERRA
2:10:1992

ORDER

The Court orders that:
1. None of the documents contained in the file produced to the Court by the Manager of the Medical Defence Union, other than those to which no objection is raised, be produced for inspection.

DECISION

This is an application to have determined whether certain documents produced to the Court under subpoena are privileged from inspection by solicitors for the plaintiff.

2. In the action the plaintiff has sued the defendant, a medical practitioner, claiming damages for personal injury which she alleges she sustained as a result of the defendant's negligence.

3. The subpoena was addressed to the Manager of the Medical Defence Union (MDU). Solicitors for the defendant supplied a list setting out the documents contained in the file that was produced to the Court by MDU in answer to the subpoena. Privilege was not claimed in respect of a number of documents in that list, but was maintained in respect of the others.

4. There is no evidence of the exact relationship between the defendant and MDU, but it seems to be common ground that it is sufficiently analogous for present purposes to that between a party and an insurer under an indemnity policy, and that the defendant's solicitors are instructed by MDU and seek to uphold any privilege or ground for refusing inspection that attaches to them as being the documents of MDU as well as any claim on behalf of the defendant personally.

5. Also, in the absence of any evidence, I understand that I am invited to draw any inferences that might be needed from the form and contents of the documents themselves.

6. The writ and statement of claim were issued on 10 July 1989. They were served on 14 July 1989.

7. The defendant first consulted his own solicitors, Barrads, about the litigation. They entered an appearance on his behalf on 21 July 1989 and began correspondence with the plaintiff's solicitors.

8. On 3 August 1989 the defendant informed Barrads that he had insurance cover arranged through MDU. MDU informed them that Macphillamy Cummins and Gibson (MCG) were to have the carriage of the action.

9. By letter dated 8 August 1989 Barrads wrote to MCG informing them of what had happened and enclosing copies of relevant documents. That letter is item 10 on the list. It is clearly a communication by the solicitors for the defendant to the solicitors who were to act for him in litigation that had already been commenced, and was made solely for the purpose of that litigation, so that the client could obtain advice and assistance about it from MCG. It is therefore privileged from inspection.

10. Meanwhile, Barrads had advised the defendant to send details of the matter directly to MDU.

11. Document 4 is a long and detailed letter dated 10 August 1989 by the defendant to MDU setting out the course of treatment of the plaintiff and enclosing copies of the writ and statement of claim, and of his clinical records and such copies as he had of the hospital records. The claim for privilege relates only to the letter.

12. This was no mere formal report of an accident to an insurer. It details facts and considerations relevant to the defence of the action which had already commenced. Its sole purpose was obviously to enable MDU to place it before the solicitors who were to be instructed to act, in his name, and on its behalf as subrogated insurer, to enable those solicitors to give advice and make decisions about the conduct of the defence. Document 4 is clearly privileged.

13. Documents 1, 2 and 3 are file notes kept by MDU for administrative purposes, such as estimates of potential liability or reinsurance details. They disclose no information relevant to the proceedings, but are created for purely private purposes of MDU. They are not, in strict analysis, the subject of legal professional privilege. But in the exercise of my discretion, I do not order that they be produced for inspection.

14. Having received the letter dated 8 August 1989 from Barrads, MCG filed a notice of change of solicitors on 14 August 1989, and on the same day filed a defence to the action. From this day on, no matter what might have been the previous situation, either MDU was the client of MCG, or it had such an interest in common with the defendant doctor that it was entitled to common interest privilege where applicable: see Bulk Materials (Coal Handling) Services Pty Ltd v. Coal and Allied Operations Pty Ltd (1988) 13 NSWLR. 689.

15. On 17 August 1989 MCG wrote to MDU the letter numbered 8 in the list. It was written solely for the purposes of the litigation and with a view to obtaining evidence to be used in the action. It is privileged from inspection.

16. Document 11 is a letter dated 22 August 1989 from MDU to MCG giving instructions for the further conduct of the litigation. It is privileged.

17. Document 12 is a letter dated 22 August 1989 from MDU to the defendant. It was a communication made solely for the purpose of the litigation in that it informed the defendant of the action taken by MDU in referring the matter to MCG and commented on the contents of document 4. It was not made for the purpose of being put before the solicitors for advice or assistance in the litigation, but because of what it reveals about document 4, which is privileged, it is itself the subject of legal professional privilege.

18. Document 13 is a letter dated 17 April 1991 from MCG to MDU, reporting on the stage that investigations had reached, and discussing further investigations to be made. It is privileged.

19. Document 16 is a letter dated 24 April 1991 from MDU to MCG giving instructions about the obtaining of evidence and further conduct of the litigation. It is privileged.

20. Document 17 is a MDU Legal Payments Requisition dated 24 April 1991, together with a statement of account for fees dated 27 February 1991 that had been received from MCG.

21. There is nothing in them that reveals the nature of advice given or any other communications with the solicitors. Following Packer v. Deputy Commissioner of Taxation (Qld) (1984) 55 ALR 242. I hold that they are not the subject of legal professional privilege. However, it is obvious that they are not material to the issues in the litigation, and in the exercise of discretion I do not order that they be produced for inspection.

22. Document 18 is a letter dated 8 May 1991 from MCG to MDU. It discusses the evidence to be obtained and is clearly privileged.

23. Document 19 is a letter from MCG to MDU dated 5 July 1991. It enclosed a report by a doctor who had examined the plaintiff on the defendant's behalf and forwarded two accounts for the costs of obtaining the report.

24. Documents 20 and 21 are the MDU Legal Payments Requisitions for the fees of the two experts referred to in document 19, and each attaches a copy of document 19 and the account from the expert.

25. None of those three documents disclose the content of the report. They are not the subject of legal professional privilege. But they are not relevant to any issue, and in the exercise of discretion, I do not order documents 19, 20 or 21 to be produced for inspection.

26. Document 22 is a letter dated 27 June 1991 from MCG to MDU enclosing and discussing the expert's report referred to in document 19. It is a communication of legal advice from solicitor to client. It is clearly privileged.

27. Document 24 is a letter dated 12 September 1991 from MCG to MDU discussing further evidence to be obtained, and enclosing a further memorandum of costs. It is clearly privileged.

28. Document 25 is an MDU Legal Payments Requisition dated 13 September 1991, attaching the account for costs and disbursements forwarded with document 24. It is not privileged, but I do not order it to be produced for inspection.

29. Document 26 is a copy letter from MDU to MCG giving instructions about the further conduct of the case. It is privileged.

30. Document 27 is a letter dated 16 June 1992 from MCG to MDU discussing the state of preparation of the case, giving advice and seeking instructions. It is privileged.

31. Document 29 is an MDU Legal Payments Requisition with memorandum of costs due to MCG attached. It is not privileged, but I do not order it to be produced for inspection.

32. Document 30 is a letter from MDU to MCG giving instructions about evidence. It is privileged.

33. Document 31 is a letter from MCG to MDU advising about the date for hearing and forwarding copies of reports served. It is not privileged, but is not relevant, and I do not order its production.

34. Document 34 is a letter about evidence from MDU to MCG. It is privileged.

35. Document 35 is a letter from MCG to MDU about evidence and enclosing a copy of the plaintiff's statement of particulars. It is privileged.

36. Document 36 is a case summary prepared by MDU headed "Confidential". There is no material from which an inference may be drawn about the person to whom it was to be submitted. It refers to enclosures, which would not be privileged documents in themselves. It sets out a short chronology of the litigation, and quotes from the two medical reports which are documents 23 and 28, in respect of which privilege is not claimed. It does not disclose any line of reasoning that is not already apparent from those reports. I do not think that the document is the subject of legal professional privilege. However, it is clearly prepared for the private administrative purposes of MDU, and has no probative value so far as the issues in the litigation are concerned. As a matter of discretion, I do not order it to be produced for inspection.

37. During argument counsel for the plaintiff claimed a particular forensic reason for wanting to inspect the MDU Legal Payments Requisitions, namely to check whether medical opinions had been sought which had not been served. I do not have to decide whether that would be sufficient reason for being allowed to inspect documents which are not the subject of legal professional privilege. The documents do not go beyond the description that I have given them above.

38. In the result, there is no objection to the production for inspection of documents 5, 6, 7, 9 14, 15, 23, 28, 32 and 33.

39. Documents 4, 8, 10, 11, 12, 13, 16, 18, 22, 24, 26, 27, 30, 34 and 35 are the subject of legal professional privilege, and are not to be produced for inspection.

40. Documents 1, 2, 3, 17, 19, 20, 21, 25, 29, 31 and 36 are not the subject of legal professional privilege, but I decline to order that they be produced for inspection.

41. I will hear counsel on the question of costs.