Topine v Canterbury Bankstown Bulldogs Rugby League Club Limited (No 2)

I gave judgment in respect of a number of subpoenas which concerned (inter alia) communications between the plaintiff and three health care professionals: Topine v Canterbury Bankstown Bulldogs Rugby League Club Limited [2024] NSWSC 1462. Part of the claim made by the plaintiff seeking to restrict access to the defendants was based on Div 1A of Ch 3 Pt 3.10 of the Evidence Act 1995 (NSW) which deals with professional confidential relation privilege. I set out the terms of ss 126A, 126B and 126C in my earlier judgment.

I said at the conclusion of that judgment:

The plaintiff subsequently provided to me at my direction copies of the documents over which privilege was claimed under s 126B. A further hearing was held on 10 December 2024 in accordance with the procedure I identified at [59] of my judgment. In practical terms the hearing was conducted in such a way that counsel for the defendants was able only to make general submissions without being aware of the specific information that was sought to be withheld by the plaintiff.

In determining whether a direction should be made under s 126B that evidence not be produced or accessed (by virtue of s 131A operating on s 126B), I am required to take into account the matters in s 126B(4) that are relevant to the application. The parties emphasised paragraphs (a) dealing with the probative value of the evidence and paragraph (h) dealing with whether the substance of the protected confidence had already been disclosed by the protected confider, that is, the plaintiff.

The determination that I have made has taken into account the information that has already been disclosed in the reports of Dr Atherton and also on the probative value of the material when taking into account the claim that the plaintiff is making, and what is generally relevant background information that would be required to inform expert witnesses and the ultimate decision maker in the proceedings.

During the course of the hearing the plaintiff sought leave to file and read a confidential affidavit which was said to address the question of “harm” as it is defined in s 126A. The defendants opposed leave being given to the plaintiff in that regard. The defendants submitted that evidence concerning what harm the plaintiff might suffer by disclosure of the documents was a different issue from what was contained in the documents. In that way confidential evidence should not be received about that issue.

I indicated that I would need to see the affidavit to rule on the objection. Having read the affidavit I struck out various portions of it on the basis that the material did not relate to harm to the plaintiff which is what s 126B(3) is concerned with. Portions of the affidavit that related to harm to the plaintiff were allowed and I directed that the affidavit be kept confidential.

The defendants were not entirely in the dark about the harm the plaintiff was claiming he would suffer. I set out in my earlier judgment (at [46]) what Dr Atherton reported about the harm the plaintiff claimed he would suffer if the material was disclosed.

As in many public interest immunity cases, the identification of the precise harm that would or might be suffered is inextricably linked to the material which was the subject of the claim. Disclosure of the affidavit would defeat the application being made by the plaintiff. However, what can be said, and I said as much to counsel for the defendants during the hearing, the affidavit goes a little beyond what is contained in the report of Dr Atherton at [46] of my earlier judgment. The plaintiff says in the affidavit that he would suffer harm in his relationships with the family members sought to be protected by the present application.

I have marked the seven pages which contained information over which privilege was claimed as confidential exhibit “A” on the application. The exhibit contains boxes around the portions of the documents over which privilege is claimed.

In my opinion, access should be granted to the defendants to the following portions of exhibit A:

In case this matter goes further, I have prepared a short addendum to this judgment which will be provided to those acting for the plaintiff and be otherwise sealed and marked “Confidential” along with the information and documents in respect of which access is to be refused. It explains my reasons for the outcome indicated above. The plaintiff will need to prepare redacted forms of the pages.

I make this order: