Lila Foxall (by her tutor Robert Foxall) v Kristy Carter (No. 2)

1. [1]

   The issue is whether the defendant’s claim for legal professional privilege can be maintained over documents sought on a subpoena directed to Dr McLean.

2. [2]

   The first plaintiff is Lila Foxall (by her Tutor Robert Foxall), the second plaintiff is the plaintiff’s mother, Suzanne Foxall, and the defendant is Kristy Carter.

3. [3]

   For convenience I shall refer to the first plaintiff as the plaintiff in this judgment, except where the second plaintiff is specifically referred to. D. Hooke SC and D. L. Del Monte appeared for the first and second plaintiffs. N. Polin SC and N. Simone appeared for the defendant. The parties relied upon submissions. The parties did not rely upon any affidavit evidence.

4. [4]

   By amended notice of motion dated 13 April 2023, the plaintiffs sought the following orders:

   1. (1)

      Order, pursuant to rr. 1.8 and 1.9 of the Uniform Civil Procedure Rules 2005 (NSW), the defendant’s claim for privilege over documents produced in packet 33 and 34 be overruled.

   2. (2)

      Order, pursuant to r. 1.9(4A) of the Uniform Civil Procedure Rules 2005 (NSW), that the plaintiffs be granted access to packet 33 and 34.

5. [5]

   At the conclusion of the hearing on 21 July 2023, I made orders that the defendant’s claim for privilege cannot be maintained and granted access to the documents in packets 33 and 34 to the plaintiff. The defendant is to pay the plaintiff’s costs. The parties are to email my chambers within 14 days (4 August 2023) in relation to the progression of the matter towards a hearing. These are my short reasons for my decision.

Background

1. [6]

   In Foxall (by her tutor Foxall) v Carter [2023] NSWSC 747 (‘the earlier decision’), I set out the background in these proceedings. For convenience, I will reproduce it here.

2. [7]

   The defendant provided horse-riding lessons at a property located at Robinson Road in Mudgee, New South Wales.

3. [8]

   The plaintiff, then aged nine years and eight months, participated in four horse-riding lessons with the defendant.

4. [9]

   On 26 September 2017, during the fourth lesson, the plaintiff rode a horse named Smokey. She fell off the horse, suffering catastrophic injuries. The horse bolted when it was carrying the plaintiff along a stock route. It is the plaintiffs’ case that she was inexperienced for the trail ride; the horse the defendant gave the plaintiff to ride was inappropriate for the plaintiff’s level of riding experience and the defendant ought to be liable to the plaintiffs for negligence, breach of contract and breaches of Australian Consumer Law.

5. [10]

   The plaintiff has served a report of Ms Karen Owens. Ms Owens has practical horse-riding experience, but is not an equine expert. The defendant served the report by Equine Consultant Steven Jeffrey in reply to Ms Owen’s report.

6. [11]

   The defendant has also served a report by an equine expert, Dr McLean dated 25 October 2022. Dr McLean’s report is controversial. Dr McLean has prepared seven reports between 19 May 2018 and 25 October 2022. The defendant has claimed legal professional privilege over the first 6 reports to which the applicant is directed.

The law

1. [12]

   Rule 1.9 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) governs the process by which an objection may be made. Questions about whether documents are privileged, and if so, whether privileged has been waived are determined by reference to the Evidence Act 1995 (NSW) and r 21.3 of the UCPR.

2. [13]

   Rule 21.3 and 31.34 of the UCPR reads:

Onus of Proof

1. [14]

   It is common ground the defendant bears the onus of establishing the privilege claim over the earlier 6 reports, dated 18 June 2018, 23 April 2019, 21 September 2022, and 25 October 2022 (x 3), including the report described as his first report.

2. [15]

   The parties referred to Hancock v Rinehart [2016] NSWSC 12 (‘Hancock (Privilege)’) and New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWCA 257 (‘New Cap’). In New Cap, White J referred to:

3. [16]

   At [18], his honour stated:

4. [17]

   His honour continued at [29]-[30]:

5. [18]

   In Hancock (Privilege), Brereton J stated at [5]-[7]:

6. [19]

   There was no evidence from the defendants and solicitor to prove the facts that establish that the claim for legal professional privilege is properly made.

7. [20]

   If Dr McLean's first report in time is in fact a final report, r. 31.34 of the UCPR compels the service of all reports, or the abandonment of those reports.

8. [21]

   Sections 56-60 of the Civil Procedure Act 2005 (NSW) compels the defendant to make this election now, and not at trial, because any delayed election will deprive the plaintiffs of the opportunity to meet this evidence at trial.

9. [22]

   A delayed election will frustrate the conclave process and may promote an application for an adjournment to meet this new, or previously undisclosed expert opinion evidence.

10. [23]

    Senior counsel for the plaintiff submitted that the defendant cannot and does not discharge this burden. Further, this issue raises whether the 6 documents are in fact draft reports. If they are not draft reports, the defendant's claim must fail.

11. [24]

    At paragraph 13 of her submissions, the defendant characterises the 6 reports as "draft", because that is how the documents are referred to in a letter attaching to packet S-33.

12. [25]

    Presumably it is the defendant's position that if these are draft reports, they must be privileged? The defendant also appears to assume that referring to the reports as draft is proof of the fact - it is not: Hancock (Privilege) at [7].

13. [26]

    The defendant cannot establish the reports are draft reports as the defendant proposes, or at all. The defendant's privilege claim must fail.

14. [27]

    On 16 December 2022, the plaintiffs filed a subpoena to produce addressed to Dr McLean: Hunt 1 [29]. The subpoena sought a category of documents as follows: “…2. All draft and final copies of reports prepared for and on behalf of the defendant to the proceedings…”.

15. [28]

    Dr McLean has produced documents pursuant to the subpoena on a non-privileged basis. Dr McLean has also produced documents pursuant to the subpoena in relation to which the defendant claims privilege (‘Packet S-33-34’).

16. [29]

    Dr McLean produced Packet S-33 under cover of a letter which identifies the documents produced and the basis for the claim of privilege with respect to each: Hunt 1, ann. R, p 77-78. The letter indicates that Packet S-33 contains 6 draft reports (‘Draft Reports’) and 2 tax invoices.

17. [30]

    The defendant’s solicitors wrote that they were instructed to make a claim for legal professional privilege over the following documents produced by Dr McLean:

Waiver

1. [31]

   Further, the plaintiffs assert waiver with respect to the 6 draft reports (Plaintiffs’ submissions [9]). The assertion is unqualified, not made in the alternative or based on any contingency. The assertion is necessarily accompanied by an implied admission that privilege attached to Packet S-33, at least prior to service of the Dr McLean’s Final Report.

2. [32]

   Sections 122 and 126 of the Evidence Act concerns the question of waiver.

3. [33]

   There are three threads to the waiver argument.

   1. (1)

      First, the defendant has waived privilege over the documents by producing the documents to the court and inviting the court to inspect them: Hancock (Privilege) at [26].

   2. (2)

      Second, if it is found Dr McLean's first report in time was a final report, the defendant has waived privilege over the following 6 reports.

   3. (3)

      Third, if the first 6 reports are found to be drafts, although the defendant invites the Court to review the documents and to make its own assumptions about the extent to which the reports have influenced the last report in time (paragraph 19 of the defendant's submissions), White J identified limits to this approach: New Cap at [51]. Brereton J went further to find the process to be impermissible: Hancock (Privilege) at [34]. I prefer Brereton J’s approach in Hancock (Privilege).

4. [34]

   The plaintiffs assert that service of the Final Report was sufficient to waive privilege over the Draft Reports by reason of the operation of s 122 of the Evidence Act 1995: Plaintiffs submissions [9]. This is incorrect.

5. [35]

   Service of an expert report in the course of litigation under the compulsion of law, that is, pursuant to Court orders for the filing or service of evidence, does not waive privilege. That is conduct not inconsistent with the maintenance of privilege, such that no waiver arises. Such is the effect of s 122(5)(a)(iii) of the Evidence Act 1995. It is not until a party tenders a report or reads an affidavit into evidence that privilege is waived. See: Akins v Abigroup Ltd (1998) 43 NSWLR 539, 551 (Mason P, Priestley JA and Rolfe AJA agreeing); Sevic v Roarty (1998) 44 NSWLR 287; The Bell Group Ltd v Westpac Banking Corporation (1998) 86 FCR 215, 224 (Foster, Lee and Nicholson JJ); Ingot Capital v Macquarie Equity [2008] NSWSC 25 [32] (Campbell JA); Australian Institute of Fitness Pty Limited v Australian Institute of Fitness (Vic/Tas) Pty Limited (No 2) [2015] NSWSC 994 [36]-[39], [43] (Sackar J).

6. [36]

   The application of s 122 of the Evidence Act is clear, however even if the common law were to apply, the position would be the same: Akins v Abigroup Ltd (1998) 43 NSWLR 539; Sevic v Roarty (1998) 44 NSWLR 287; Waugh Asset Management Pty Ltd v Lynch [2010] NSWSC 197 [17] (McDougall J).

Resolution

1. [37]

   The plaintiff’s claim on waiver fails because the defendant has not yet tendered Dr McLean’s Final Report into evidence. The defendant has not waived privilege over it or the draft reports. The argument in respect of waiver is not applicable until Dr McLean’s report is put into evidence at trial.

2. [38]

   However, the defendant has not relied upon any evidence to prove the facts that the defendant’s claim is properly made. Hence, the defendant’s claim for legal professional privilege over the draft reports of Dr McLean cannot be maintained. The defendant’s notice of motion filed 13 April 2021 is dismissed.

3. [39]

   The plaintiff is entitled to access to the draft reports and the material relied upon and referred to in the draft reports. Once the plaintiff has had access to these documents, she will make a decision as to whether she needs to obtain a report from an expert in the same field as Dr McLean.

4. [40]

   Costs are discretionary. Costs normally follow the event. The defendant is to pay the plaintiff’s costs.

   1. (1)

      The defendant’s notice of motion filed 13 April 2023 is dismissed.

   2. (2)

      The plaintiff is entitled to have access to the subpoenaed packets (33-34) immediately.

   3. (3)

      The defendant is to pay the plaintiff’s costs.