Desjardins v Smith

1. [1]

   By Notice of Motion filed on 15 March 2024 the plaintiff seeks orders setting aside a Notice to Produce issued to her by the defendant’s solicitors on 14 March 2024, on the basis that the Notice is an abuse of process because it lacks a legitimate forensic purpose, it is oppressive and a fishing expedition, and on the basis of client legal privilege.

2. [2]

   I note the following background.

3. [3]

   The plaintiff commenced proceedings against the defendant in this Court on 2 November 2021. The plaintiff claims that as a result of chiropractic treatment by the defendant, which occurred on 3 August 2017, she suffered injuries, as a result of which she has ongoing disabilities.

4. [4]

   The defence filed on 23 June 2022 raised in part that the proceedings are not maintainable by reason of the expiry of the limitation period in s 50C of the Limitation Act 1969 (NSW).

5. [5]

   On 14 August 2018 the plaintiff, who was then not legally represented, sent a claim and attached documents to Nick Eordogh of Guild, the defendant's insurer.

6. [6]

   On 26 February 2019 the plaintiff instructed Maurice Blackburn, solicitors in respect of her claim against the defendant. On 31 March 2021 Maurice Blackburn ceased acting for the plaintiff.

7. [7]

   On 16 March 2021, the plaintiff engaged her current solicitors to act on her behalf.

8. [8]

   On 2 November 2022 the defendant’s solicitors sent a letter to the plaintiff's solicitors requesting particulars as to discoverability in the following terms:

9. [9]

   By letter dated 22 December 2022 the plaintiff's solicitors replied to the defendant’s solicitors. The letter stated in part:

10. [10]

    For clarity I set out the relevant parts of ss 50C and 50D of the Limitation Act 1969.

11. [11]

    In Baker-Morrison v State of New South Wales [2009] NSWCA 35, the Court of Appeal stated that when a defendant seeks to rely on a limitation defence the defendant bears the burden of proving the relevant facts: at [14].

12. [12]

    On 23 November 2023 the defendant’s solicitors caused a subpoena to be issued to Maurice Blackburn to produce their complete file in relation to the plaintiff's potential claim against the defendant. Privilege has been claimed in respect of that file and that issue is still to be resolved.

13. [13]

    On 14 March 2024 the defendant’s solicitors served on the plaintiff's solicitors a Notice to Produce certain documents, addressed to the plaintiff. The Notice required production of the following documents:

14. [14]

    The plaintiff seeks that the Notice to Produce be set aside on the following grounds:

Plaintiff’s submissions

1. [15]

   The plaintiff submitted that the Notice to Produce has no legitimate forensic purpose and is therefore an abuse of process. It was submitted that the plaintiff understands that by item 1 of the Notice to Produce the defendant seeks copies of documents between the plaintiff and Maurice Blackburn because they may shed light on the limitation issue raised by the defendant, and when the plaintiff's cause of action was discoverable within the meaning of s 50D of the Limitation Act 1969. The plaintiff submitted that item 1 of the Notice to Produce seeks the same material as was sought from Maurice Blackburn by the defendant’s subpoena, which is being dealt with by the parties in respect of the privilege claim, and therefore the duplicate Notice to Produce lacks a legitimate forensic purpose. The plaintiff submitted that the documents sought in item 1 of the Notice to Produce raise the same issue of privilege already raised in respect of the Maurice Blackburn file sought by the defendant’s subpoena.

2. [16]

   The plaintiff sought to rely on the decision of Yes Family Pty Ltd v Sphere Healthcare Pty Ltd [2016] NSWSC 393 wherein Slattery J disapproved of a party seeking the same documents from one party by two different processes, of preliminary discovery followed by a subpoena. That is not the situation here.

3. [17]

   The plaintiff relied on the decision of Ward CJ in Eq in Xinfeng v GR Capital Group [2020] NSWSC 620 as to the requirements of a Notice to Produce. Her Honour said:

4. [18]

   The plaintiff submitted that it is unclear how repeated production of duplicate and privileged documents could materially assist any further on an identified issue.

5. [19]

   The plaintiff submitted that item 1 requiring production of "All documents and correspondence" with Maurice Blackburn does not identify specific documents but rather seeks production of a class of documents.

6. [20]

   The plaintiff submitted that the Notice to Produce is oppressive in the documents sought by item 2, because it requires the plaintiff to access previously produced medical records and travel from Canada to Australia to check her stored documents. The plaintiff said through affidavits from her solicitor that the only medical records she had were obtained to provide to the defendant's insurer in 2018 and were so provided, and therefore have already been produced. The plaintiff submitted that by seeking records going back to 2010, item 2 was oppressive.

7. [21]

   The plaintiff submitted that without her returning to Australia and checking her stored records she cannot say whether she has anything further to produce in response to item 2, but it is unlikely she has anything further.

8. [22]

   In respect of the documents sought in item 1 the plaintiff submitted it is also oppressive given the repetition and the plaintiff being remote from the documents.

9. [23]

   In respect of the documents sought in item 3, the plaintiff submitted that all the documents in the plaintiff's possession were provided to Mr Eordogh in August 2018 and she does not believe she has anything further to produce in response to item 3.

10. [24]

    The plaintiff submitted that all the documents sought in item 1 of the Notice to Produce are prima facie privileged and the issue is whether the privilege should be "somehow overcome".

11. [25]

    Both parties agreed that the common law principles in respect of the privilege claimed apply.

12. [26]

    The plaintiff submitted in respect of the documents sought in item 1 that there is no legitimate forensic purpose in the defendant knowing what advice was given by any expert to the solicitors or what the solicitors thought about such advice or discussed among themselves. That is because, the plaintiff submitted, the knowledge to be considered for the purposes of s 50D(1)(a)-(c) is the knowledge of the plaintiff, with the advice of her solicitors, not the knowledge of her previous solicitors or their employees: Baker-Morrison; State of New South Wales v Gillett [2012] NSWCA 83; Pomare v Whyte [2019] NSWCA 317; Rickhuss v The Cosmetic Institute Pty Ltd (No 4) [2023] NSWSC 666.

13. [27]

    The plaintiff submitted that there has been no waiver of privilege in respect of the privileged material in the Maurice Blackburn file. The plaintiff produced two letters from Maurice Blackburn to the plaintiff, relevant to the anticipated limitation defence, but submitted that in producing those two letters she was not waiving privilege in respect of other documents in the file or to be taken to be acting inconsistently with her maintaining the privilege, relying on Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 and DSE Holdings Pty Ltd v Intertan Inc [2003] FCA 384.

14. [28]

    The plaintiff submitted that the defendant cannot force waiver of the plaintiff's privilege by pleading or asserting or seeking to put in issue the plaintiff's state of mind: Mann v Carnell; DSE Holdings; Commonwealth v Temwood Holdings Pty Ltd [2002] WASC 107 at [10]. The plaintiff submitted that she has not acted inconsistently with the privilege or made any assertion which put in issue the advice received or her state of mind.

15. [29]

    The two letters which were produced on behalf of the plaintiff during the hearing were letters from Maurice Blackburn Lawyers to the plaintiff dated 16 December 2020 and 31 March 2021.

16. [30]

    In summary, the letter of 16 December 2020 referred to advice which had been provided to the plaintiff in a telephone conversation on 9 December 2020, about the opinion of a neurosurgeon that the injury to her postural longitudinal ligament, which she attributed to the defendant, would have resolved within six months to a year, and that he could not find a cause for her continuing issues. The letter advised the plaintiff that her options were to instruct Maurice Blackburn to cease investigation and close her file; to continue with her claim on her own and deal with the defendant's insurer's lawyers; to instruct other lawyers to act on her behalf and continue investigating her matter; or to instruct Maurice Blackburn to obtain a further verbal opinion from another neurosurgeon.

17. [31]

    The letter of 31 March 2021 from Maurice Blackburn to the plaintiff referred to the previous letter and a conversation with the plaintiff on 8 March 2021 and confirmed that they would cease investigation of her medical negligence enquiry against Matthew Smith and advised that they had ceased acting for her. The letter stated "We are sorry that we have been unable to secure the requisite expert causation opinion in your claim against Matthew Smith". The letter referred to previous advice about the limitation period for commencing a claim, and repeated the advice that the plaintiff had three years from when the action was "discoverable" to commence legal proceedings.

18. [32]

    The plaintiff submitted that the disclosure of those two letters did not thereby permit the defendant to examine the solicitor’s file to explore their attempts to obtain evidence or to examine the plaintiff's instructions to Maurice Blackburn.

Defendant’s submissions

1. [33]

   The defendant submitted that the legitimate forensic purpose of the Notice to Produce is for the defendant to seek evidence relevant to his limitation defence.

2. [34]

   The defendant submitted that it is not an abuse of process to seek documents which are in the possession of the plaintiff, which may or may not correspond with those held by Maurice Blackburn, that it is orthodox to seek documents from both parties to correspondence.

3. [35]

   The defendant submitted that the documents sought by the Notice to Produce are sufficiently described and identified in confined categories. He submitted the categories are not broad or oppressive in the requirement of their retrieval. He accepted that because the plaintiff is presently overseas and any documents are in Australia, that a reasonable time for production should be allowed to deal with those circumstances.

4. [36]

   During oral submissions, Senior Counsel for the defendant acknowledged as a secondary position that some of the documents specified in Item 1 may not be in the plaintiff's possession as documents which would have passed from the solicitors to her, and so removed some items from that Item, being draft advices, internal memorandums, appointments and time recordings.

5. [37]

   The defendant did not concede that the Notice did not comply with the Rules. He submitted that if the Notice is not set aside the defendant should be granted leave for the documents sought to be produced before the trial, as more efficient and productive than having them produced at trial. He submitted if any documents are produced the defendant seeks leave to inspect them.

6. [38]

   In category 2 the defendant seeks records of all chiropractic treatments received by the plaintiff from the defendant before 3 August 2017 and from any other chiropractor from 2010. The defendant submitted that both the plaintiff’s and defendant’s evidentiary statements refer to the defendant having provided treatment to the plaintiff before 3 August 2017.

7. [39]

   Also, as the defendant denies causing any injury to the plaintiff and does not know the cause of the injury claimed, records are sought of prior treatment of the plaintiff in respect of any cause of the injury the plaintiff asserts she suffered and a history of treatment needed. The defendant submitted that although 2010 seems to go back for a long time, the documents are circumscribed by their description or category, and therefore to search for them in the plaintiff's stored documents is not oppressive. The defendant again accepts that the plaintiff is not in a position while in Canada to search for documents, but submits that she should search on her return to Australia in order to make a proper reply to the Notice that she does or does not have any documents to produce in category 2.

8. [40]

   The defendant submitted that the documents sought in category 3 refer to the claim the plaintiff sent to the defendant's insurer in August 2018 before she was legally represented. The claim sent to the insurer annexed documents. The defendant seeks any further documents created or used by the plaintiff in preparing her claim. This is said to potentially assist on the issue of the plaintiff's knowledge of the facts in s 50D of the Limitation Act 1969 in August 2018, more than three years before she filed her Statement of Claim.

9. [41]

   The defendant accepts that some of the documents in category 1 do likely attract legal professional privilege. The defendant accepts the common law principles apply.

10. [42]

    The defendant contends that the plaintiff has waived privilege by joining issue on the issue of her knowledge for the purposes of s 50D, relying on DSE Holdings Intertan; Boorman v Glaxo Wellcome Australia Pty Ltd [2017] NSWSC 576 at [36]-[43] and Shaw v Oakdale Junior Motorcycle Club Inc [2017] NSWSC 822.

11. [43]

    The defendant accepts that the relevant knowledge for the purpose of s 50D is the plaintiff's, not her legal advisors’.

12. [44]

    The defendant relies on the decision of Fagan J in Boorman v Glaxo on the subject of issue waiver of privilege and conduct inconsistent with maintenance of client legal privilege.

13. [45]

    The plaintiff contended that Boorman v Glaxo was wrongly decided. The defendant disputed that. I was unable to find any indication that that decision has been overruled, overturned or declared plainly wrong.

14. [46]

    I note that in Boorman v Glaxo Fagan J was dealing with claims by plaintiffs for extensions of time which involved:

15. [47]

    His Honour stated "I consider this a clear case of issue waiver": at [41].

16. [48]

    That is a factually different situation from the situation under consideration here. The defendant acknowledges that in Boorman the plaintiffs were seeking an extension of time whereas now the discoverability provisions place the onus on the defendant to establish that the plaintiff had knowledge at a particular time.

17. [49]

    Fagan J said at [42]:

18. [50]

    In [43] his Honour said:

19. [51]

    The defendant relied on the authorities referred to by Fagan J in Boorman. He referred to statements of Allsop J (as his Honour then was) in DSE Holdings. I note that in that decision his Honour held that the mere denial, by a holder of privilege, of an assertion or allegation by the other party, of the privilege holder’s state of mind, was not an act that expressly or impliedly made an assertion about the contents of any privileged communication to lead to a waiver of privilege that opened such communication to scrutiny.

20. [52]

    The defendant relied on what Allsop J said at [58] of his judgment:

21. [53]

    The defendant also relied on [48] where Allsop J said:

22. [54]

    Allsop J also relied on Mann v Carnell where the High Court said at [28]-[29]:

23. [55]

    The defendant also relied on Shaw v Oakdale Junior Motorcycle Club Inc. He referred to paragraph [32] of Schmidt J’s judgment in which her Honour referred to Australian Institute of Fitness Pty Ltd v Australian Institute of Fitness (Vic/Tas) Pty Ltd (No 2) [2015] NSWSC 994 in which Sackar J said at [30] that:

24. [56]

    The defendant accepted that he cannot force the plaintiff's state of mind to be an issue that then creates a waiver of privilege.

25. [57]

    The defendant relied on Schmidt J’s reference to Sackar J in Australian Institute of Fitness referring to Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 at [53]. Schmidt J said at [32]:

26. [58]

    I note that in Australian Institute of Fitness Sackar J referred in [32] to Rio Tinto, wherein the Full Court of the Federal Court said the cases which are said to illustrate waiver are ones in which, in the substantive proceedings, the privilege holder has put in issue the advice received.

27. [59]

    In [33]-[34] of Shaw, Schmidt J said that because in that case the plaintiff and his father/tutor had referred in their evidentiary statements to not being aware of an entitlement to claim compensation before discussions with his solicitors:

28. [60]

    And at [34]:

29. [61]

    The defendant submitted that although the defendant has raised the issue of limitation, rather than a positive assertion by the plaintiff, it is an issue that is in play, and at trial, the plaintiff will be making factual assertions about her state of knowledge and she will be cross-examined about her interactions with her former lawyers.

30. [62]

    The defendant relied on the plaintiff’s having told the defendant's insurer she had a claim before she consulted any lawyers. The defendant submitted that the claim, of more than 100 pages, the plaintiff sent to the defendant's insurer reflected her knowledge.

31. [63]

    The defendant submitted that in the two years the plaintiff was represented by Maurice Blackburn she must have been receiving advice, and her knowledge was informed by her lawyers.

32. [64]

    The defendant submitted that the plaintiff's knowledge, as informed by her communications with her lawyers and as reflected in her own communications, will be an issue in the trial and will be the subject of evidence in the trial.

33. [65]

    The defendant relied on an email from Nikki Whiting of Maurice Blackburn dated 28 August 2019 to the defendant’s solicitors, which stated in part "Our client would like the matter to be expedited and to that end, please advise if your client intends to resolve this matter on an unlitigated basis and if not, we are instructed to institute legal proceedings", as suggesting the advice the plaintiff had been given before then and what she had said to her lawyers before then. The defendant submitted that that gave rise to a waiver on an issue waiver basis.

34. [66]

    The plaintiff disputed that the defendant could so rely on that email, submitting that there was no evidence that the plaintiff so instructed Maurice Blackburn and that the contents of the email are in conflict with Maurice Blackburn's final letters of advice to the plaintiff that they did not have sufficient evidence to commence proceedings.

35. [67]

    The defendant submitted that the plaintiff has made positive assertions about her knowledge of the discoverability of her cause of action, in the letter of 22 December 2022 from her solicitors to the defendant’s solicitors answering their request for particulars as to discoverability.

36. [68]

    The plaintiff disputed that the defendant can rely on the solicitor’s letter to infer the plaintiff's knowledge as to causation.

37. [69]

    The defendant submitted that the plaintiff, by making the assertions in that letter, through her solicitor, that she did not have knowledge of the elements in s 50D(1)(b) and (c) until she was represented by her current solicitors, has plainly joined issue, thus giving rise to an issue waiver.

38. [70]

    The defendant submitted that the documents from Maurice Blackburn which the plaintiff was willing to disclose are not sufficient, and it seeks all advice that Maurice Blackburn gave the plaintiff and the communications from her to her lawyers. The defendant submitted that as a chiropractor, the plaintiff may have expressed views to her lawyers about the fault of the defendant and why her injury was so serious that it justified bringing legal proceedings. The defendant submitted that the fact that the plaintiff, having been advised by Maurice Blackburn that they did not think she had a good case, went to new lawyers and commenced proceedings strongly suggests she already had knowledge of fault and that the injury was serious enough to bring proceedings.

39. [71]

    The plaintiff submitted that a stubbornly held wrong opinion of the plaintiff was irrelevant to the issue of her knowledge for the purposes of s 50D.

Determination

1. [72]

   I am satisfied there is a legitimate forensic purpose in the Notice to Produce in that the documents sought are likely to materially assist on the issue of the plaintiff's knowledge of the discoverability of her cause of action, relevant to the limitation defence.

2. [73]

   The documents are identified with sufficient particularity. The Notice does not constitute a fishing expedition. The Notice is not oppressive in its scope or content in any of the items sought. Although category 2 seeks documents about the plaintiff's treatment from 2010, the documents sought are in a limited, identified category. Although the plaintiff is presently physically located in Canada and her documents are in Australia, the defendant accepts the situation that on her return to Australia to prepare for the trial of her proceedings, the plaintiff can then search her stored documents to ascertain if she has any documents to produce in response to the Notice.

3. [74]

   As to the issue of privilege, the issue is has the plaintiff made assertions, express or implied, about her state of knowledge of the facts relevant to the discoverability of her cause of action which are inconsistent with her maintaining the confidentiality of her communications with Maurice Blackburn.

4. [75]

   I do not consider that the email from Nikki Whiting of Maurice Blackburn of 28 August 2019 had that character or effect.

5. [76]

   However, I am of the view that the plaintiff has made positive assertions about when she did and did not acquire knowledge of the facts relevant to the discoverability of her cause of action which are inconsistent with her objection to producing the documents specified in item 1 of the Notice to Produce as privileged, in:

6. [77]

   The plaintiff having thereby asserted that she did not acquire knowledge of the discoverability of her cause of action during the period she was represented by Maurice Blackburn Lawyers, her objection to producing the documents sought as privileged would create an unfairness: Mann v Carnell at [29]. It is not an abuse of process for the defendant to seek from the plaintiff any documents in her possession recording communications between her and Maurice Blackburn.

7. [78]

   Therefore, the plaintiff's application to set aside the Notice to Produce should be dismissed.

8. [79]

   As to the issue of leave pursuant to r 34.1 UCPR, I would have granted leave to the defendant to require the documents sought, to be produced before the hearing, in the interests of efficiency, except that the plaintiff is in Canada and her date of returning to Australia to prepare for the hearing is not known to the Court. In those circumstances, I will direct that any documents the plaintiff has to produce in response to the Notice to Produce should be produced to the Court on the first day of the hearing of her proceedings.

Orders

1. [80]

   Therefore I make the following orders:

   1. (1)

      The plaintiff's Notice of Motion dated 15 March 2024 to set aside the Notice to the plaintiff to produce documents dated 14 March 2024 is dismissed.

   2. (2)

      The plaintiff is to produce to the Court on the first day of the hearing of the proceedings any documents in answer to the Notice to Produce, as to item 1, as narrowed by Senior Counsel for the defendant during the hearing of the motion and as to item 3, as amended during the hearing of the motion.

   3. (3)

      The plaintiff is to pay the defendant's costs of and incidental to the hearing of the Notice of Motion.