Topine v Canterbury Bankstown Bulldogs Rugby League Club Limited

1. [1]

   The plaintiff is a professional Rugby League player who entered into a contract of employment with the first defendant (“the Club”) on or about 23 August 2022. By that contract, the first defendant agreed to employ the plaintiff as a professional Rugby League player from 1 November 2022 to 31 October 2024.

2. [2]

   On 18 July 2023 the plaintiff arrived late to training as a result of a misunderstanding of the time of the training schedule. As a result, the plaintiff alleges that the second defendant, who was a trainer at the Club, gave a direction that the plaintiff was to engage in individual wrestling matches with between 30 to 35 players on the Bulldogs NRL player roster. He alleges that this was, in effect, an improper punishment direction which did not comply with his employment agreement and amounted to unlawful corporal punishment of the plaintiff.

3. [3]

   In proceedings commenced by the plaintiff against the Club and the trainer on 23 April 2024, the plaintiff pleads a breach of his employment contract, and seeks in addition damages for assault, false imprisonment, and negligence in respect of the actions of the second defendant. The plaintiff claims to have suffered mental harm as a result of those actions.

4. [4]

   The plaintiff ceased work as a footballer at the Club on 24 July 2023. His contract was terminated by the Club on 31 October 2023. He retained his present solicitors to act for him in August 2023.

5. [5]

   On 11 July 2024 the defendants issued a subpoena addressed to the plaintiff’s solicitor, Mr Abdullah Reslan. The subpoena was subsequently served on him. The schedule required production of the following documents:

6. [6]

   In subsequent correspondence, the solicitors for the defendants agreed to vary the words in italics so that the subpoena would read “communications which refer to Jackson Topine”.

7. [7]

   Marcus Topine is the plaintiff’s father. Ahmad Merhi and Tyran Smith are agents or employees of Sportsplayer Management, the organisation which manages the plaintiff and other football players. Dr Michael Atherton, Jan Earl and John Carmody are health care professionals who have treated the plaintiff for his mental health condition since August 2023.

8. [8]

   On the same day the defendants issued subpoenas to, Dr Atherton, Jan Earl and John Carmody.

9. [9]

   The schedule to Dr Atherton’s subpoena required production of the following documents:

10. [10]

    The schedules to the subpoenas addressed to Ms Earl and Mr Carmody were in identical terms except paragraphs 2(i) and (j) referred to the two health care professionals other than the person to whom the subpoena was addressed.

11. [11]

    The date of 1 July 2023 in the subpoena was said to be a somewhat arbitrary date shortly before the incident complained of but was only relevant in relation to documents relating to the health professionals. That was because of references in reports of the health care professionals to events in the plaintiff’s life that preceded the incident later in July 2023. The matter will be dealt with when I deal with the subpoenas as they concern the health care professionals.

12. [12]

    By an amended notice of motion dated 5 September 2024, the plaintiff relevantly seeks the following orders:

13. [13]

    On 4 September 2024, the defendants filed a notice of motion seeking, relevantly, the following orders:

14. [14]

    This judgment concerns those two notices of motion.

15. [15]

    In his affidavit of 26 August 2024, Mr Reslan says this:

16. [16]

    The plaintiff’s written submissions put forward three grounds on which the subpoena to Mr Reslan ought to be set aside. The first one was that the documents are the subject of client legal privilege. Secondly, there was no legitimate forensic purpose for the documents, and thirdly the subpoena was oppressive. The plaintiff accepted that the change of the terms of the subpoena from “in any way connected” to “refer” meant that the oppression argument fell away because of the ease of doing a search the plaintiff’s name in documents. The plaintiff submitted also that, as drafted, the subpoena amounted to a fishing expedition, by the fact that it had sought “all documents between 1 July 2023 and the date of this subpoena”.

17. [17]

    The issues involved in the two subpoenas overlap to the extent that the subpoena to Mr Reslan seeks communications between him and the health professionals that refer to the plaintiff. Similarly, the subpoenas addressed to the health professionals, in respect of which production is now sought by the defendants, refer to communications that refer to the plaintiff.

18. [18]

    Mr Reslan’s subpoena is also concerned with communications between him and the plaintiff’s father and agents. I consider the two groups separately.

The plaintiff’s father and agents

1. [19]

   Mr Reslan’s affidavit makes clear that he was retained by the plaintiff to represent him in his dispute with the defendants in August 2023. The dispute related to the incident on 18 July 2023. Before Mr Reslan was retained he did not know the plaintiff nor any member of his family, nor did he have anything to do with the plaintiff or any member of his family.

2. [20]

   Mr Reslan also said that, since he represents a number of Rugby League players who are managed by Sportsplayer Management, he has communicated with people from that organisation on a range of matters that have nothing to do with the plaintiff or the present dispute.

3. [21]

   The defendants accepted that there may well be documents that are privileged amongst the communications between Mr Reslan and any of these persons but submitted that all of the communications may not necessarily or obviously be privileged. When I asked counsel for the defendants if she could give me an example of how a document might be relevant but would not be caught by client legal privilege, counsel suggested that if these persons had been in communication with her client and had then relayed that communication to Mr Reslan, then the communication between them and Mr Reslan would not be privileged.

4. [22]

   Accepting Mr Reslan’s evidence about the timing of his retainer, and the fact that he did not know the plaintiff or any member of his family prior to his retainer, and his evidence that any communication with Sportsplayer Management individuals about the plaintiff was only for the purpose of advising and providing legal services to the plaintiff, it is difficult to see what documents could fall within paragraphs 2(a)-(d) of the subpoena to Mr Reslan which would not be privileged.

5. [23]

   In Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620, Ward CJ in Eq (as her Honour then was) said:

6. [24]

   In Woolner v South Western Sydney Local Health District [2023] NSWSC 748, the plaintiff in a medical negligence case served a subpoena on the defendant’s solicitors seeking production of:

7. [25]

   The solicitors for the defendant sought an order setting aside the subpoena on the basis that the documents were subject to client legal privilege. An issue in the case was whether, in order to establish the privilege, there would need to be evidence from the defendant’s solicitors demonstrating that each of the documents concerned was so privileged. Reliance was placed on what had been said by Brereton J in Hancock v Rinehart (Privilege) [2016] NSWSC 12 at [7]-[10] where his Honour explained the evidentiary burden falling on a person who claimed legal professional privilege.

8. [26]

   In setting aside the subpoena, Schmidt AJ said:

9. [27]

   Although the terms of the subpoena to Mr Reslan are not as explicit as the terms of the subpoena in Woolner, any communications between Mr Reslan and the plaintiff’s father and agents would, in the light of Mr Reslan’s evidence, necessarily comprise documents that were confidential communications between Mr Reslan and other people for the dominant purpose of the plaintiff being provided with professional legal services relating to an Australian proceeding.

10. [28]

    In the circumstances, there is no necessity for the documents to be produced with a claim for privilege being made. As Black J said in In the matter of Wetherill Park Holdings Pty Ltd [2020] NSWSC 982 at [12]:

11. [29]

    The example given by counsel for the defendants about communications between the agents and the defendants that were passed on to Mr Reslan would not be an exception to the claim for client legal privilege. In all the circumstances, the communications could only have been passed on to Mr Reslan for the purpose of his giving advice to the plaintiff in respect of the proceedings. It is not without some significance that the persons referred to in paragraphs 2(b), (c) and (d) are agents of the plaintiff, and, as far as the evidence goes, Mr Marcus Topine was also acting as an agent for the plaintiff in his dealings with the defendants and Mr Reslan.

12. [30]

    The documents are all the subject of client legal privilege and the subpoena should be set aside in respect of paragraph 2(a)-(d).

The health care professionals

1. [31]

   The plaintiff first consulted the psychologist John Carmody on 4 August 2023, the counsellor Jan Earl on 7 August 2023, and the psychiatrist Dr Atherton on 15 August 2023.

2. [32]

   Ms Earl’s report of 8 August 2023, Dr Atherton’s reports of 15 August 2023 and 4 April 2024, and Mr Carmody’s report of 21 August 2023 have been served in support of his claim. Each of the reports deals with the plaintiff's complaints concerning the incident on 18 July 2023. The reports also include information about the plaintiff's background including matters that predate the incident. It is not necessary to detail the matters that preceded the incident. It is sufficient to note that they are obviously relevant matters where damages are claimed for personal injury including for mental harm.

3. [33]

   It was because of the information about the plaintiff’s background that the date of 1 July 2023 was chosen by the defendants. By selecting that date, the defendants wished to obtain any documents preceding the incident containing such information.

4. [34]

   Notwithstanding service of those reports, the plaintiff seeks to claim client legal privilege and to resist production of documents sought in the Reslan subpoena under s 126B of the Evidence Act 1995 (NSW), and to prevent disclosure of the documents produced in answer to the health care professionals’ subpoenas.

5. [35]

   Section 126B relevantly provides:

6. [36]

   Section 126A relevantly defines the following terms:

7. [37]

   Of some significance, in the report of Dr Atherton of 15 August 2023, Dr Atherton recorded this under the heading “Confidentiality and consent”:

8. [38]

   There are two aspects to the issues concerning the subpoenas as they relate to the medical health professionals. The first is the issue of client legal privilege and whether that has been waived by the service of the reports. The second issue arises from s 126B of the Evidence Act.

9. [39]

   The plaintiff seeks to set aside the Reslan subpoena as it touches the medical health professionals on the basis that correspondence and documents passing between Mr Reslan and those persons are subject to client legal privilege. Whilst that may have been correct if the medical health professionals had been consulted privately and if their reports had not been served, the service and use of those reports raises squarely whether the privilege has been waived.

10. [40]

    Section 122 of the Evidence Act relevantly provides:

11. [41]

    Section 122 is said to replicate the common law test for waiver set out in Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66. The plurality said at [29]:

12. [42]

    The statement of claim pleads:

13. [43]

    In my opinion, privilege has been waived over communications between Mr Reslan’s firm and the health care professionals that are related to the reports relied upon by the plaintiff in the proceedings. Section 126 of the Evidence Act must be borne in mind because that section provides that ss 121-125 of the Act do not prevent the adducing of evidence of a communication or the contents of a document if it is reasonably necessary to enable a proper understanding of the communication or document, including the reports. In that regard, Brereton J (as his Honour then was) said in ML Ubase Holdings Co Ltd v Trigem Computer Inc (2007) 69 NSWLR 577; [2007] NSWSC 859 at [45]:

14. [44]

    In his second report of 4 April 2024, Dr Atherton refers to a number of documents he accessed for the purpose of the report. That included a letter of instructions from Mr Reslan, a statement of facts from the plaintiff to Ms Earl, and Dr Atherton’s clinical notes. Privilege has been waived in respect of those documents.

15. [45]

    Further, privilege has been waived as to the reports and as to correspondence related to those reports subsequent to their preparation. To the extent that doubt remains whether privilege has thereby been waived in respect of individual documents, I will return to that issue presently.

16. [46]

    The issue under s 126B arises in this way. After the subpoenas were issued, Mr Reslan sought an opinion from Dr Atherton about the effect disclosure of the material sought in the subpoenas would have on the plaintiff. Dr Atherton provided a report containing the questions asked by Mr Reslan and Dr Atherton’s answers as follows:

17. [47]

    What Dr Atherton says in this report sits uneasily with what he included in his report of 15 August 2023 that is set out at para [37] above. It would also be surprising if Mr Reslan had not also explained to the plaintiff that by claiming damages for mental harm and by serving reports which referred to issues the plaintiff had preceding the incident, confidentiality was waived. A plaintiff who wishes to claim damages for mental harm would ordinarily be informed that it would be necessary to disclose all matters in the plaintiff’s background that might to relate to the claim for mental harm that is being made. That would necessarily, in some or most cases, involve the disclosure of personal matters. Such personal matters have already appeared in the reports served.

18. [48]

    Section 126C provides:

19. [49]

    The consent given by the plaintiff to Dr Atherton means that the information contained in Dr Atherton’s reports of 15 August 2023 and 4 April 2024 can be adduced. In any event, a consideration in sub-s 126B(4)(h) is whether the substance of the protected confidence has already been disclosed. That is a significant matter when the power under s 126B(1) is being considered.

20. [50]

    The plaintiff has prepared a schedule of the documents produced by the health care professionals over which privilege is claimed in whole or in part. The schedule identifies the author of each document, its subject or title, its recipient(s) and the privilege claimed in respect of it. Except in relation to the medical reports of Dr Atherton, the privilege claimed only relates to s 126B. It appears to be the case that where in relation to each author it is said no privilege is claimed in respect of certain pages, that those pages are what have already been disclosed by the service of the reports.

21. [51]

    The plaintiff submitted that determination of the privilege should be conducted in the same manner in which public interest immunity matters are dealt with, that is, by the judge inspecting the documents and forming a view without the other party being given access to them. The defendants submitted that the appropriate course was what was said in National Roads and Motorists' Association v Whitlam [2007] NSWCA 81; (2007) 25 ACLC 688:

22. [52]

    The defendants submitted that such a course was appropriate in a matter like the present, and relied on what was said in Herrick v Knowles [2014] NSWSC 1223 to justify that course. Herrick v Knowles was a case brought by a plaintiff who claimed that she was sexually groomed and abused by a priest. The report sought in a subpoena by the plaintiff had been prepared at the behest of a superior of the priest from a social worker who was informed of the allegation and was asked to interview the priest concerned and write a report.

23. [53]

    Associate Justice Harrison noted that the parties referred to National Roads and Motorists' Association v Whitlam and other cases and her Honour said at [11]:

24. [54]

    In the result, her Honour read the report herself (see at [38]) but declined to make it available to the plaintiff (see at [45]).

25. [55]

    Given the approach adopted by Harrison AsJ in Herrick v Knowles, I do not read her Honour’s decision as an adoption of what is contained in [121] of NRMA v Whitlam for a case like the present or Herrick itself. NRMA v Whitlam was a case concerned with a deed entered into between parties to settle proceedings. The deed was relevant to other proceedings, but the deed contained a confidentiality clause preventing its disclosure (inter alia) as was required by law. An issue arose as to how the deed should be used in evidence. Paragraph [117] of the judgment encapsulates the issue:

26. [56]

    The Court then said:

27. [57]

    That is a wholly different kind of situation from documents in respect of which an application under s 126B is made in a case like the present. The procedure set out in NRMA v Whitlam at [121] is designed to ensure that the confidential information does not come into the hands of persons who may obtain some commercial advantage or knowledge by having access to the document. In such circumstances it is not inappropriate to permit those persons’ lawyers to see the document on the condition that the information is not conveyed to their clients.

28. [58]

    On the other hand, in a case involving a claim for mental harm, the use that would be made of the information would be a use made by the lawyers on the other side when cross-examining the plaintiff or in negotiations to settle the proceedings. The whole purpose of keeping the documents confidential under s 126B would be undermined if the other party’s lawyers had access to them: Balzan Group Pty Ltd v IPM Group Pty Ltd [2014] NSWSC 1480 at [46]-[48].

29. [59]

    In my opinion, the plaintiff’s submission of how the disputed documents are to be dealt with should be accepted. The position is akin to where a claim for public interest immunity is made. The judge concerned (probably not the trial judge) should inspect the documents and make a decision without disclosing those documents to the other party or their lawyers.

30. [60]

    Because most of the health care professionals' reports were prepared before proceedings were commenced, only Dr Atherton has acknowledged the Witness Code of Conduct in respect of his second report of 4 April 2024. However, if the reports are to be relied on, the experts will need to acknowledge that they have been prepared in accordance with that Code. What flows from that is that the expert is required to say, by reason of what they might subsequently come to know, whether a report already prepared needs to be qualified in some way. Counsel for the plaintiff had submitted that correspondence between Mr Reslan and the health care professionals subsequent to the preparation of the reports would be subject to client legal privilege and/or might amount to a protected confidence under s 126B. Whether that would be so might depend on a proper application of the Witness Code.

31. [61]

    It will be necessary for there to be a further hearing to enable me to inspect the documents prepared by the health care professionals over which any form of privilege is claimed in the light of this judgment. Any decision made must have regard to the consent given for the disclosure of confidential information as is recorded in Dr Atherton's report.

32. [62]

    As a result of what I have said in this judgment, the plaintiff will need to give consideration to what documents a claim for client legal privilege or a claim under s 126B is maintained. The matter can be relisted for further argument, including, if necessary, for inspection of disputed documents by the Court. The parties should then bring in short minutes to reflect this judgment. Such short minutes will at least include the following order:

    1. (1)

       The subpoena addressed to Abdullah Reslan dated 11 July 2024 is set aside so far as it concerns paragraph 2(a)-(d).