Privilege preserved under PIPA - carternewell.com · Privilege preserved under PIPA Introduction...
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© Carter Newell 2011 www.carternewell. com November November November November 2011 2011 2011 2011 By Rebecca Stevens, Partner and Milton Latta, Solicitor Privilege preserved under PIPA Introduction Earlier this year, Carter Newell released a bulletin about the decision in Felgate v Tucker 1 which, at that stage, was the latest in a line of cases dealing with disclosure of documents pursuant to the Personal Injuries Proceedings Act 1992 (“PIPA”). In that bulletin, the authors, Stephen White and Allison Bailey, made reference to the decision in Allen v State of Queensland 2 which was under appeal at the time. On 4 November 2011, the Queensland Court of Appeal handed down its decision in State of Queensland v Allen 3 . The Court of Appeal upheld the claimant’s request for disclosure of a doctor’s witness statement but dismissed its request for file notes made by the respondent’s solicitors, the file notes recording discussions with two other doctors. Facts On 23 December 2003, the claimant underwent a surgical procedure at the Prince Charles Hospital. He was 16 months old at the time. During that procedure, he developed a heart block causing severe brain damage. In 2010, the claimant’s father, as his litigation guardian, commenced a claim for damages against the State of Queensland. Shortly after the procedure, the hospital, which considered that there was a risk of legal action against it, sought advice from its solicitors. The hospital’s solicitors recommended that it obtain statements from the doctors involved. They proposed that this be done by providing the doctors with a list of questions (prepared by the solicitors) and asking them to prepare “a written report” addressing these queries and marking the report ‘privileged and confidential’. The hospital's solicitors also interviewed a number of the doctors. The claimant sought disclosure of various documents, including the written statements provided by the doctors and the solicitors’ file notes of conferences with a number of those doctors. The Claimant’s Case The claimant argued that: 1. The respondent was obliged to disclose the documents pursuant to s 9A(8)(b) of the PIPA – which required the disclosure of ‘copies of 1 [2011] QCA 194. 2 [2010] QSC 442. 3 [2011] QCA 311. all documents … about the medical services’ – and also pursuant to ss 20 and 27 of the PIPA; 2. In accordance with the principles in Watkins v State of Queensland 4 , these documents were not protected by legal professional privilege as they were obtained for the purpose of complying with the pre-litigation procedures under the PIPA; and 3. Alternatively, if the documents were protected by legal professional privilege, that privilege was abrogated by s 30(2) of the PIPA as they fell within the meaning of “investigative reports”. The Respondent’s Case The respondent argued that it was not obliged to disclose the statements or file notes as they were protected by legal professional privilege and that the expression “investigative reports” should be read down so as to maintain that privilege. The Primary Judge’s Decision The primary judge found that the statements and file notes came into existence for the dominant purpose of anticipated litigation and were therefore protected by legal professional privilege under the general law. He distinguished Watkins on the basis that these documents came into existence before the respondent had received the notice of claim and, therefore, before any obligation under section 20 of the PIPA had arisen. However, after considering the legislative intent of the Act, the primary judge considered that the expression “investigative reports” should not be given a narrow interpretation and concluded that the witness statements and file notes in question were “investigative reports”. Accordingly, legal professional privilege in those documents was abrogated by s 30(2) of the PIPA. The primary judge made an order requiring the respondent to disclose investigative reports, including witness statements, file notes and other documents that reported on the provision of medical services to the claimant in connection with the incident. 4 [2008] 1 Qd R 564.
Transcript of Privilege preserved under PIPA - carternewell.com · Privilege preserved under PIPA Introduction...
© Carter Newell 2011 www.carternewell.com
NovemberNovemberNovemberNovember 2011201120112011
By Rebecca Stevens, Partner and
Milton Latta, Solicitor
Privilege preserved under PIPA
Introduction
Earlier this year, Carter Newell released a bulletin about the decision in Felgate v Tucker
1 which, at
that stage, was the latest in a line of cases dealing with disclosure of documents pursuant to the Personal Injuries Proceedings Act 1992 (“PIPA”). In that bulletin, the authors, Stephen White and Allison Bailey, made reference to the decision in Allen v State of Queensland
2 which
was under appeal at the time.
On 4 November 2011, the Queensland Court of Appeal handed down its decision in State of Queensland v Allen
3. The Court of Appeal upheld
the claimant’s request for disclosure of a doctor’s witness statement but dismissed its request for file notes made by the respondent’s solicitors, the file notes recording discussions with two other doctors.
Facts
On 23 December 2003, the claimant underwent a surgical procedure at the Prince Charles Hospital. He was 16 months old at the time. During that procedure, he developed a heart block causing severe brain damage. In 2010, the claimant’s father, as his litigation guardian, commenced a claim for damages against the State of Queensland.
Shortly after the procedure, the hospital, which considered that there was a risk of legal action against it, sought advice from its solicitors. The hospital’s solicitors recommended that it obtain statements from the doctors involved. They proposed that this be done by providing the doctors with a list of questions (prepared by the solicitors) and asking them to prepare “a written report” addressing these queries and marking the report ‘privileged and confidential’. The hospital's solicitors also interviewed a number of the doctors.
The claimant sought disclosure of various documents, including the written statements provided by the doctors and the solicitors’ file notes of conferences with a number of those doctors.
The Claimant’s Case
The claimant argued that:
1. The respondent was obliged to disclose the documents pursuant to s 9A(8)(b) of the PIPA – which required the disclosure of ‘copies of
1 [2011] QCA 194.
2 [2010] QSC 442.
3 [2011] QCA 311.
all documents … about the medical services’ – and also pursuant to ss 20 and 27 of the PIPA;
2. In accordance with the principles in Watkins v State of Queensland
4, these documents were
not protected by legal professional privilege as they were obtained for the purpose of complying with the pre-litigation procedures under the PIPA; and
3. Alternatively, if the documents were protected by legal professional privilege, that privilege was abrogated by s 30(2) of the PIPA as they fell within the meaning of “investigative reports”.
The Respondent’s Case
The respondent argued that it was not obliged to disclose the statements or file notes as they were protected by legal professional privilege and that the expression “investigative reports” should be read down so as to maintain that privilege.
The Primary Judge’s Decision
The primary judge found that the statements and file notes came into existence for the dominant purpose of anticipated litigation and were therefore protected by legal professional privilege under the general law. He distinguished Watkins on the basis that these documents came into existence before the respondent had received the notice of claim and, therefore, before any obligation under section 20 of the PIPA had arisen.
However, after considering the legislative intent of the Act, the primary judge considered that the expression “investigative reports” should not be given a narrow interpretation and concluded that the witness statements and file notes in question were “investigative reports”. Accordingly, legal professional privilege in those documents was abrogated by s 30(2) of the PIPA.
The primary judge made an order requiring the respondent to disclose investigative reports, including witness statements, file notes and other documents that reported on the provision of medical services to the claimant in connection with the incident.
4 [2008] 1 Qd R 564.
The Court of Appeal
By the time of the appeal, there were three documents in contention: a statement prepared by one of the doctors, and two file notes made by the respondent’s solicitors recording discussions with two other doctors.
The primary judge’s conclusion that these documents came into existence for the dominant purpose of anticipated litigation was not challenged on appeal. The issues in the appeal were therefore whether the primary judge erred in finding that the documents were “investigative reports” and, if so, whether the documents were “medical reports” – an alternative argument raised by the claimant – within the meaning of those terms in s 30(2) of the PIPA.
In considering the meaning of “investigative reports”, the Court of Appeal gained little assistance from a consideration of the purposes of the PIPA as expressed in s 4 of the Act. It therefore turned to the ordinary meaning of the words as defined by the Oxford Dictionary. The Court of Appeal concluded that an investigative report was a document produced as the result of an overall process of investigation and it did not encompass statements or file notes.
Fraser JA commented that, “In construing the terms used in s 30(2), there is no basis for attributing greater weight to the interests of a claimant in pursuing a claim than to the interests of a respondent in maintaining privilege”.
However, in relation to the statement, the Court of Appeal, by majority, considered that it was a “medical report”. The respondent’s claim for privilege in relation to that document was therefore abrogated by s 30(2) of the PIPA. In coming to his decision, Fryberg J observed that, “In content and form [the statement] resemble[d] the thousands of medical reports prepared for courts each year”.
In relation to the file notes prepared by the respondent’s solicitors, the Court of Appeal considered that these could not be described as reports. Accordingly, legal professional privilege over these documents was preserved by s 30(1) of the PIPA.
Conclusion
This decision is a welcomed relief for PIPA respondents and seeks to preserve a party’s fundamental right to claim privilege over documents such as witness statements from third parties and files notes of discussions with third parties.
If a party can successfully assert legal professional privilege in a file note of a discussion with a third party, or in a statement of a third party that is not medical in nature, that privilege will generally be preserved by section 30(1) of the PIPA.
However, it should be remembered that, based on the decision in Watkins, if third party statements or file notes are prepared during the course of investigations carried out for the purpose of providing a response pursuant to s 20 of the PIPA, then these documents may not be protected by legal professional privilege.
Disclosure therefore remains one of the more complex aspects of the PIPA, however, recent decisions have provided much needed guidance and clarification for parties to work towards in order to achieve the main object of the PIPA being the speedy resolution of claims pre-litigation, whilst at the same time preserving critical privilege entitlements.
Authors
Rebecca Stevens Partner
T (07) 3000 8347 E [email protected]
Milton Latta Solicitor
T (07) 3000 8356 E [email protected]
