Zejnic v Marcantonio & Ors [2008] ACTSC 45 (16 May 2008)

Last Updated: 28 July 2008

SAFET ZEJNIC v PETER MARCANTONIO & DEAN ROACH & MARIE LOPERA & CAROLYN BRYSON

[2008] ACTSC 45 (16 May 2008)

PRACTICE AND PROCEDURE - client legal privilege - waiver - expert medical report - earlier report served - when subsequent report required to be served - whether privilege in materials provided to medical expert waived

LEGAL PROFESSIONAL PRIVILEGE - whether service of expert report waives privilege in material provided to expert for purpose of report

Court Procedures Rules 2006, r 1201, 1241, 1242, 1243, 1244

Civil Law (Wrongs) Act 2002 ss 62, 63, 68

Australian Capital Territory Electricity Authority v Reid [1991] FCA 248; (1991) 29 FCR 500

Sevic v Roarty [1998] NSWSC 462; (1998) 44 NSWLR 287

Dean v More Than a Morsel Pty Limited (2002) 170 FLR 432

Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83

No. SC 344 of 2004

Judge: Master Harper

Supreme Court of the ACT

Date: 16 May 2008

IN THE SUPREME COURT OF THE )

) No. SC 344 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SAFET ZEJNIC

Plaintiff

AND: PETER MARCANTONIO

First Defendant

AND: DEAN ROACH

Second Defendant

AND: MARIE LOPERA

Third Defendant

AND: CAROLYN BRYSON

Fourth Defendant

ORDER

Judge: Master Harper

Date: 16 May 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The report of Dr William Glaser of 29 February 2008 be deemed to have been served by the defendants on the plaintiff this day.

2. The plaintiff's application of 27 March 2008 be otherwise dismissed.

1. The plaintiff, by application dated 27 March 2008, seeks an order that the defendant serve all briefing materials provided to Dr William Glaser, psychiatrist, for the purposes of the preparation of his report of 29 February 2008.

2. The action is brought by the plaintiff for damages for personal injuries which he asserts that he suffered in four unrelated motor vehicle collisions. Each of the vehicles driven by the four defendants was insured by the same third party insurer. Two of the defendants deny negligence. The other two admit negligence but allege contributory negligence.

3. During the preliminary stages of the action, it was listed on numerous occasions for directions before the Deputy Registrar over a period of some eighteen months. I note that on 15 February 2007 the Deputy Registrar made a direction that the plaintiff serve medical reports within seven days. No such direction appears to have been made at any time that the defendants serve medical reports.

4. A Certificate of Readiness signed by the solicitors for the parties was filed on 15 March 2007. It seems that the parties were not in fact ready for trial at that time. The matter came before the Deputy Registrar at a listing hearing on a further four occasions before, on 27 September 2007, a hearing date was fixed. The action came before me for hearing on 3 March 2008. After four days of hearing, I adjourned the trial and granted leave to the parties to apply to the list clerk to fix a date to complete the hearing. I directed that two sitting weeks should be set aside for the purpose. I granted liberty to apply for further directions on two days' notice.

5. On 12 March 2008 the solicitors for the plaintiff filed an application seeking an order that "the defendant [sic] serve a supplementary report by Dr William Glaser". A previous report by Dr Glaser dated 28 September 2007 had been served. The plaintiff's solicitor, Mr Crabb, his belief that the defendants were in possession of a supplementary report by Dr Glaser. He annexed to his affidavit a copy of a letter from the defendants' solicitors of 6 March 2008 which read as follows:

We refer to our telephone conversation on 6 March 2008 and advise that we do not hold instructions to serve any further reports of Dr William Glaser on the plaintiff.

We rely on the argument already advanced to you by our counsel, namely that the initial report of Dr Glaser dated 28 September 2007 has not yet been tendered into evidence and until such time as that is done, the report and any subsequent reports remain privileged.

The defendants reserve the right to rely on this privilege until such time as Dr Glaser's initial report is tendered.

We are instructed to oppose any application through which the plaintiff may seek access to any subsequent reports of Dr Glaser.

6. I was informed during the course of argument that negotiations had taken place without prejudice between the parties, in the course of which the solicitors for the defendants had provided the solicitors for the plaintiff with a copy of a second report by Dr Glaser dated 29 February 2008. The copy report was provided for the purposes of the negotiations only, and subject to the condition that it not be shown to the plaintiff, and that privilege in it was not to be taken to be waived by the disclosure.

7. I was informed that the solicitors for the defendants were in possession of video film of the plaintiff taken in the course of surveillance, which had been seen by Dr Glaser. I gathered that Dr Glaser had also been provided with a report by the investigators who had conducted the surveillance.

8. The plaintiff completed his evidence in chief on the third day of the hearing. He was cross-examined for the next two days. When I adjourned the hearing part-heard, the plaintiff was still in cross-examination, and I gave him the conventional warning not to discuss the case, or his evidence, with anyone during the period of the adjournment.

9. I anticipate that counsel for the defendants will wish to show the video film to the plaintiff when the cross-examination resumes. As one would expect, counsel for the defendants does not want the plaintiff to have advance notice of when and where the surveillance was conducted. He does not want the plaintiff to have the opportunity to tailor his evidence to deal with the surveillance material. It might be said in response that if the conditions attaching to the provision of Dr Glaser's second report were removed, and the surveillance film and report were disclosed to the plaintiff's solicitors, it would nevertheless be improper for them to communicate with the plaintiff whilst he is subject to the constraints of cross-examination. Counsel for the defendants concedes this, but expresses concern that the material might come to the plaintiff's attention without any impropriety on the part of his solicitors or counsel, for example if the material is made available to the plaintiff's treating doctors.

10. Part 2.12 of the Court Procedures Rules 2006 includes provisions governing expert reports in actions for damages for personal injury. Expert report is defined in Rule 1201 as a written statement by an expert which sets out the expert's opinion and the facts on which the opinion is formed, and includes the substance of the expert's evidence that the party serving the statement intends to adduce in evidence in chief at the trial of the proceeding. If an expert provides two or more written statements for a party, each of the statements is an expert report if the statements, taken together, come within the definition. Dr Glaser is clearly an expert for the purpose of the rules.

11. Rule 1241 requires a defendant to serve "a copy of each expert report obtained by the defendant" not later than fourteen days after being served with the plaintiff's report. An expert report may not be tendered, and is not admissible, unless served in accordance with the rule, other than by agreement of the parties or by leave of the Court. The Court must not give leave in the absence of exceptional circumstances. A later report received by a party which is merely responsive to another report, or merely updates another report, must be served within three days of receipt.

12. Rule 1242 provides that if an expert witness changes in a material way an opinion in an expert report that has been served, the expert must provide a supplementary report stating the change and the reason for it. The party who engaged the expert must not use the earlier report without serving a copy of the supplementary report.

13. Rule 1243 provides that except with leave or by agreement, the oral evidence in chief of an expert is not admissible unless an expert report has been served containing the substance of the matters sought to be adduced in evidence. By virtue of Rule 1244, an expert report which has been served is admissible as evidence of the opinion of the expert, and as evidence of any fact on which the opinion was formed and of which the expert's oral evidence would be admissible.

14. I have not seen Dr Glaser's supplementary report, but I am satisfied that it is a supplementary report in which he has changed in a material way an opinion expressed in his first report. The defendants, not having formally served the supplementary report, are prima facie in breach of Rule 1242.

15. In Australian Capital Territory Electricity Authority v Reid [1991] FCA 248; (1991) 29 FCR 500, a Full Court of the Federal Court of Australia on appeal from a single judge of this Court held that where a defendant had served a report and obtained a subsequent report, the defendant was obliged either to serve the subsequent report or to notify the plaintiff that it was no longer intended to rely on the first report. The circumstances of that case were a little different to the present matter: the first report assisted the defendant's case whereas the second report weakened it. The solicitors for the defendant decided not to serve the second report. The Supreme Court Rules in force at that time had no specific provisions equivalent to the present Rules 1241 and 1242. The Federal Court held that service of an expert's report gave notice not only of the content of the report but also of the fact that it was intended to rely on it at the hearing. A second report was required to be served unless notice was given that the defendant no longer intended to rely on the expert at all. The Court said that unless this practice was adopted the party on whom the report was served would be misled as to the course proposed to be taken at trial. They said that the trial judge should have ordered that the second report be produced to counsel for the plaintiff and that counsel for the plaintiff should have been allowed to tender it as if it had been served.

16. Much of the argument on the present application was directed to the issues of legal professional privilege and waiver of privilege. Counsel for the defendant submits that even the first report of Dr Glaser retains its privilege, and will do so until it is tendered in evidence, notwithstanding that a copy has been served on the solicitors for the plaintiff. Counsel relies on the Court of Appeal decision of Sevic v Roarty [1998] NSWSC 462; (1998) 44 NSWLR 287. That decision arose out of interlocutory proceedings in an action against an orthopaedic surgeon for professional negligence. The court had made a direction under a practice note that the defendant file all expert reports by a specified date. Reports were filed which included one from a medical practitioner who mentioned in his report that he had received from the defendant's solicitors a folder of documents provided as background. The plaintiff's solicitors applied for access to the folder of documents as part of the process of discovery, on the basis that privilege in them had been waived. The court held that the report had been delivered pursuant to a court order and was hence a disclosure made under compulsion of law.

17. A similar issue arose before Miles CJ on appeal from the then Master in Dean v More Than a Morsel Pty Limited (2002) 170 FLR 432. In that matter the solicitors for the plaintiff had served on the solicitors for the defendant a notice which Miles CJ characterised as a notice for non-party production. The solicitors for the defendant had served a report of a medical specialist who had been furnished by the solicitors with statements of witnesses and expert reports. The solicitors for the defendant relied on Sevic v Roarty and submitted that the doctor's report had been served under compulsion of the Rules, so that privilege in the documents furnished to the doctor had not been waived. In Dean, as in Sevic, it was not submitted on behalf of the defendant that the served medical report itself retained privilege. In both cases the argument was limited to the background documents which had been provided to the expert.

18. Miles CJ, whilst noting the decision in Sevic, held at paragraph 18 that the weight of authority and the extent to which principle could be derived from it favoured fairness as the overriding consideration. The presence or absence of compulsion was simply one of the factors necessary to take into account when considering whether fairness required the privilege to be regarded as waived. This seemed to his Honour to be the principle which emerged from the majority judgement in Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83.

19. In any event, the learned Chief Justice (at para 25) held that a decision to serve an expert report in compliance with the rule then applicable (O 39 r 46) was not a decision made under compulsion. It was made consequent upon a technical forensic decision to call the expert at trial or to tender the report at trial. Service of the report gave the serving party a distinct forensic advantage, being the entitlement to have the report admitted as evidence of the expert's opinion and also as evidence of any fact upon which the opinion had been formed so long as the oral evidence of the author of that fact would be admissible (at para 24). Accordingly his Honour held (at paras 26-28) that fairness required disclosure of documents containing information upon which the opinion expressed in a served expert report was based.

20. To the extent that there is any inconsistency between the decision of Miles CJ in Dean and the decision of the NSW Court of Appeal in Sevic, I am obliged to follow the former.

21. It follows that the solicitors for the defendant, when they served Dr Glaser's first report, must be taken to have made a forensic choice to do so, and hence to have waived privilege in it. Having done so, they were obliged, when they received the second report, to serve it pursuant to Rule 1242, or alternatively to inform the plaintiff's solicitors that they no longer intended to rely on the first report or on Dr Glaser's evidence.

22. Rule 1242 does not provide any sanction for non-compliance. The situation here is a little different to that which confronted the Federal Court in ACT Electricity Authority v Reid. In this case the plaintiff's lawyers know about the second report, and indeed have a copy of it subject to the conditions I have mentioned. The Federal Court spelt out a procedure which was not laid down in specific terms by the Rules, which I think should be applied in the present circumstances. It is artificial and invidious that the plaintiff's solicitors should have a copy of the second report subject to the present conditions. The defendant's solicitors must be taken to have provided it because they saw a potential benefit in doing so during the course of settlement discussions. Having done that, it seems to me that it is unfair to the plaintiff for the conditions which were imposed at that time to remain in place. The report should be treated as having been served. The report should be deemed to have been served pursuant to Rule 1242 at the date of these reasons.

23. The same considerations do not apply to the surveillance report and film. None of this material has yet been seen by the plaintiff or his lawyers or doctors. I am prepared to assume that the surveillance material will show the plaintiff engaging in everyday activities in public view. This being so, there should be no surprise to the plaintiff personally in seeing the film during the course of his cross-examination. After all, he knows what he has been doing even if his lawyers and doctors do not.

24. It seems to me that the surveillance material and the film are privileged, and that the mere disclosure to the plaintiff's lawyers of their existence in the course of the settlement discussions should not be seen as inconsistent with the intention of the defendants to maintain that privilege. Equally, I am not persuaded that there are any considerations of fairness to the plaintiff which militate against the maintenance of the privilege, provided that the material is made available once the plaintiff and the lay witnesses have completed their oral evidence.

25. I suggested to counsel during argument that I was attracted to a course whereby the plaintiff's medical expert witnesses would be provided with an opportunity to see the film before giving their evidence, and that if necessary I would adjourn the further hearing at the conclusion of the lay evidence in the plaintiff's case to facilitate that course. I accept that this is likely to add in some measure to the length of the hearing and to expense, but I am of the view that the desirability of the course outweighs those shortcomings. At the conclusion of the action, submissions can be made about appropriate costs orders which would take account of the unusual course of the hearing.

26. I should make mention of another argument raised by counsel for the plaintiff. Chapter 5 of the Civil Law (Wrongs) Act 2002, which relates to pre-court procedures in personal injury claims, applies to causes of action arising on and after 9 March 2004, or in relation to which the claimant had consulted a lawyer prior to that date. I am informed that the chapter applies to two of the four defendants. Counsel for the plaintiff draws my attention to section 68 of the Act, which obliges a respondent to give a claimant copies of certain documents, including reports about the claimant's medical condition or prospects of rehabilitation, and reports about the claimant's cognitive, functional or vocational capacity. For the purposes of the argument I accept that Dr Glaser's reports would be caught by the section if they had been in the possession of the insurer of the relevant defendants at the time the section imposed the obligation. Counsel for the plaintiff argues that notwithstanding the title of Chapter 5 (Personal injury claims - pre-court procedures), section 68 imposes a continuing obligation on a respondent as defined to give the claimant copies of the documents as they come into the respondent's possession.

27. Section 68 is contained in Part 5.3 of the Act (Obligations of parties to give documents and information). The purpose of the part is stated in section 63 to be "to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim". The only sanction for non-compliance with section 68 by a respondent is found in subsection 68(5):

If a respondent fails, without proper reason, to comply fully with this section, the respondent is liable for costs to the claimant resulting from the failure.

28 Perhaps significantly, section 68 does not provide a mechanism for enforcing compliance either before action or once action has commenced.

29. This is in contrast with Part 5.2, dealing with claims procedures, which provides: 62(2) If a respondent does not comply with the requirements of this Part, a court in which the respondent defends a proceeding based on the claim may, on a claimant's application in the proceeding, award in the claimant's favour costs (including legal and investigation costs) reasonably incurred by the claimant because of the respondent's non-compliance.

30. I must take it that the legislature intended this distinction between Part 5.2 and Part 5.3, as to what is to flow from non-compliance by a respondent.

31. It is sufficient for me to say, for present purposes, that I am not satisfied that the effect of section 68 is to remove privilege from a document which has not been served. It is unnecessary for the disposition of the present application for me to decide whether section 68, or more generally Chapter 5, continues to have any application once action is commenced.

32. For the above reasons, the order I make is that the report of Dr William Glaser of 29 February 2008 be deemed to have been served by the defendants on the plaintiff pursuant to Rule 1242. I refuse the application by the plaintiff seeking production of the materials provided to Dr Glaser for the purposes of that report. I have already ordered on 6 March 2008 that the parties have leave to approach the list clerk for a date for the resumed hearing of the action.

33. My provisional view as to costs is that both the plaintiff and the defendants have had some measure of success, but that neither side has achieved entirely what may have been hoped for. Additionally, the exercise has been a useful one for the case management of the action. In those circumstances, my provisional view is that the costs of the application should be costs in the cause, but I shall provide counsel with an opportunity to make further submissions about costs if they wish to do so.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 16 May 2008

Counsel for the plaintiff: Mr ID Bradfield

Solicitors for the plaintiff: Capital Lawyers

Counsel for the defendants: Mr WM Fitzsimmons

Solicitors for the defendants: Sparke Helmore

Date of hearing: 28 April 2008

Date of decision: 16 May 2008