White v Newcom Collieries Pty Ltd [1995] NSWCC 3; (1995) 11 NSWCCR 48 (15 February 1995)

[1995] NSWCC 3; (1995) 11 NSWCCR 48 (Matter No 32471/94)

WHITE v. NEWCOM COLLIERIES PTY LTD

Compensation Court of New South Wales: Neilson J

15 February 1995

Practice and Procedure - Subpoenas - Subpoena to produce documents - Power of court to defer or refuse access to documents not subject to privilege - Basis for exercise of discretion to defer or refuse access - Manner of exercising discretion

A.T. Brown, for the applicant

B.A. Odling, for the respondent

Ex tempore

NEILSON J: This is an application for review of a decision of the registrar made on 3 February 1995. The review is pursuant to section 36 of the Compensation Court Act 1984.

Prior to 3 February 1995 the applicant's solicitors had issued a subpoena for production addressed to Coal Mines Insurance Pty Ltd, the insurer of the respondent.

When the matter came before the registrar, the registrar by consent upheld a claim for privilege in respect of a report, which has not been put before me, dated 30 November 1994. However, the registrar refused a claim for legal professional privilege in respect of investigator's reports dated 1 April 1994 and 1 July 1994 and of a report of Dr Rowe of 2 May 1994.

Before me today have been placed two reports of Dr Rowe of that date, but it transpires that access has not yet been given to either report of Dr Rowe of that date. Therefore I infer that the registrar refused the claim for privilege in respect of both of Dr Rowe's reports of 2 May 1994.

The Registrar then granted general access to those documents after a period of 14 days unless a motion for review had been filed. That motion for review has been filed and the matter now comes before me today.

It appears that more evidence or concessions are before me today than was or were before the registrar and that I have had the benefit of more argument and reference to more authorities than was given to the Registrar.

The first order that I propose is to uphold the Registrar's orders that no claim for legal professional privilege attaches to the following documents produced on subpoena by the insurer, namely, firstly, the two reports of Dr Roger Rowe of 2 May 1994 and, secondly, the investigator's report of 1 April 1994.

I discharge the order of the Registrar rejecting the claim for legal professional privilege in respect of the investigator's report of 1 July 1994. I do so for these reasons:

1. The applicant was examined by Dr Roger Rowe at the request of the insurer on 21 March 1994. A report following upon that examination is dated 2 May 1994 and makes a certain statement as to the applicant's fitness for work.

2. The second report of Dr Roger Rowe also of the same date, refers to Dr Rowe's inspection of certain evidence on 21 April 1994, approximately a month after his examination of the applicant. It appears to me that both reports of Dr Rowe of 2 May 1994 were probably placed into the hands of the insurer, either on that day or the following day or the day thereafter, as they were both sent to the insurer via the Document Exchange.

3. The application for determination points out that liability for the payment of compensation was declined by the insurer on 4 May 1994.

4. On 31 May 1994, the solicitors for the applicant wrote to the manager of the Myuna Colliery, which I take to be a division of the respondent, and also to the insurer, letters requesting information which would enable the presentation of a claim to the Court.

5. On 3 June 1994, the insurer forwarded its file to the respondent's solicitors in which they point out that proceedings had not yet been instituted but were certainly anticipated.

6. The investigator's report of 1 July 1994 was commissioned by the insurer on 10 June 1994. I infer, therefore, that it was commissioned, firstly, after the insurer had declined liability for payment of compensation, secondly, after the insurer had received a communication from the applicant's solicitor which clearly indicated that litigation was contemplated and, thirdly, after the insurer had sent its file to appropriate solicitors for the defence of proceedings.

The only reason, in my view, for the commissioning of the investigator's report of 1 July 1994 was for the purposes of the anticipated and threatened litigation, the insurer having before it the two reports of Dr Rowe of 2 May 1994 and also the earlier investigator's report of 1 April 1994. It would appear to me that the insurer had declined liability for managing an ordinary workers compensation claim and the only reason to commission the further investigator's report was in anticipation of the threatened litigation.

I therefore uphold the claim for legal professional privilege in respect of the investigator's report of 1 July 1994 and I direct that that investigator's report be placed in an envelope and marked "Privileged".

The respondent also requested the Registrar to refuse production in the exercise of discretion to the other documents in respect of which it had unsuccessfully claimed legal professional privilege. In respect of one document, I confirm the registrar's order that production should be granted.

I grant access to the applicant to the report of Dr Roger Rowe of 2 May 1994, referring to his examination of the applicant on 21 March 1994. I cannot see that the production of that report would be inimical to the interests of justice.

The questions which remain are whether I ought grant access to the second report of Dr Rowe of 2 May 1994, referring to his inspection of certain evidence on 21 April 1994 and as to whether I should grant access to the investigator's report of 1 April 1994.

Firstly, the following must be pointed out. The matter referred to in the investigator's report of 1 April 1994 is a matter which is wholly within the knowledge of the applicant himself. As to Dr Rowe's report of 2 May 1994, referring to his inspection of certain evidence on 21 April 1994, the opinion reached by Dr Rowe in that report is no different to the opinion reached in the other report of 2 May 1994, to which access has been granted.

In Waind v. Hill [1978] 1 NSWLR 372, the then President, Moffitt P, said at 383, when speaking of the granting of access to documents produced on subpoena, the following:

"However, the documents are under the control of the judge and, even if the witness has not objected, there may be good reason in the elucidation of the truth why the judge may e.g. defer inspection by one party or the other."

At the foot of page 385 and on to page 386 of the same report, his Honour said:

"The exercise of the discretion [the judicial discretion to permit inspection] does not involve the determination of an issue between the parties as to the relevance or admissibility of the document. It may well be, however, that the judge may hear, or indeed invite, comment from any opposing party, if the documents are such that elucidation of the truth may best be served by delaying inspection, or because the documents reveal matter private to such party or his associates and is irrelevant to the proceedings."

The respondent, being the claimant on the notice of motion, has also referred me to the decision of Clarke J (as he then was) in Markus v. Provincial Insurance Co Ltd, Supreme Court of NSW (Common Law Division), No. 17241/82, 11 May 1983, unreported. In that case certain investigators' reports were before the Court and an application was made that access not be granted to the plaintiffs, as it would be inimical to the due administration of justice. In that case, his Honour said the following:

"The defendant has submitted the interests of justice would not be served by producing the document because it contains material which does not advance the plaintiff's case but which on the other hand would, if the plaintiffs are not genuine, put the plaintiffs on notice of some allegedly suspicious circumstances and enable them to tailor or endeavour to tailor their evidence to meet the circumstances.

...

Subject to one matter I am of the view that the interests of justice are against the requirement that there be production. The one matter which has been urged by counsel for the plaintiffs is that in facilitation of settlement. It is said that if the plaintiffs could assess those matters which are advanced as reasons in part, at least, why the claim is rejected, then the prospect of settlement might be stronger. Bearing in mind the view I have that the ultimate question is going to be as to the genuineness or otherwise of the plaintiffs, and again in the interests of justice that they may be put on notice at an earlier date of the allegedly suspicious circumstances, I think this factor, to the extent to which it is entitled to consideration, is outweighed by the greater interest of ensuring that the Court gives justice between the parties."

In my view the matter before me is almost in the same category as Markus' case.

Dr Rowe, in the report of 2 May 1994, commenting upon the examination of the applicant on 21 March 1994, says, inter alia:

"At the time of this assessment he has symptoms with certain activities but no specific physical signs and thus one is reliant upon his statements in regard to his current level of discomfort and disability."

In other words Dr Rowe believes that the case is essentially one of whether one ought believe the applicant or not. In such cases the credit of the applicant and, indeed, of other witnesses is often in issue. Many are the cases of this nature in this Court. The material in respect of which the respondent asks me to exercise my discretion goes to that issue. It is one and perhaps the best way of elucidating the truth in litigation in this Court.

If the applicant be honest, then he has nothing to lose by not inspecting the documents. If he be dishonest, then the course of justice might well be defeated by granting access because, as Clarke J pointed out in Markus' case, it would enable the applicant to tailor his evidence to meet the circumstances referred to in the documents in question. In other words, it would enable the applicant to confess and avoid, if he were aware of what the documentation showed.

I believe that the interests of justice in this case are best served by refusing to grant access to the investigator's report of 1 April 1994 and Dr Roger Rowe's report of 2 May 1994, commenting on his inspection of certain evidence on 21 April 1994 until after the applicant has been cross-examined.

I therefore discharge the Registrar's order that access be granted to the two documents to which I have just referred and in lieu thereof I order that access be deferred to the two documents just mentioned until after the applicant has been cross-examined in the substantive proceedings.

The two documents in question are to be placed in a second envelope and marked "Access to applicant only after cross-examination".

The report of Dr Roger Rowe of 2 May 1994 following upon his examination of the applicant on 21 March 1994 I hand down to the parties and grant access to both parties.

Mr Brown now draws to my attention the fact that the motion before me only seeks that I withhold access to certain documents until the applicant had given his evidence-in-chief. Notwithstanding that that is the only relief sought, I believe in the exercise of my discretion that I should maintain the order which I have earlier announced.

As was pointed out by Moffitt P in Waind's case, the Court may refuse access, notwithstanding the fact that the person whose document it is does not seek to deny access to the parties, and that is

the passage at 383 to which I have referred earlier in my reasons for judgment. Even if the applicant's evidence-in-chief had appeared to be completed and access was then granted, it is possible that an application could then be made for the applicant to give further evidence-in-chief and it is possible, owing to how litigation is run from time to time and the inevitability of adjournments and inter-positions, that the applicant's attention could be drawn to the documents in question before his cross-examination commenced.

I therefore confirm the order which I have earlier made.

The respondent has asked me for an order that the applicant pay the respondent's costs of this motion. Costs cannot be ordered against an applicant unless the claim is frivolous, vexatious, without proper justification or fraudulent. This is only an interlocutory application and there is no evidence upon which I can draw any inference of any of those matters. All the documents raise is a possibility of certain things.

Section 18(6) of the Compensation Court Act 1984 is not relevant to this application as that only relates to a review of a decision of a commissioner and here I deal with a review of a decision of a registrar.

On the other hand, it appears to me that the respondent caused this motion to be brought on because of its lack of success before the registrar and that the registrar's decision was flawed because of a failure by the respondent to put before the registrar the evidence and material now before me, and the concessions to which I have referred earlier in my reasons for judgment and also because of a failure of the parties and in particular, of the respondent, to draw the registrar's attention to the state of the authorities.

In applications of this nature, the worker is at a distinct disadvantage as he does not really know to what he is speaking or the contents of the documents in respect of which the claim for privilege is sought or the application to defer access is granted. In other words the applicant is really a "blind" but involuntary party to the applications made by the respondent.

In those circumstances and bearing in mind what I believe to be a deficiency in the evidence and argument before the registrar at first instance, I order the respondent to pay the applicant's costs of this motion.

I certify a fee for counsel for the motion.

Orders accordingly

Solicitors for the applicant: Moroney Rutter & Mantach

Solicitors for the respondent: Sparke Helmore