Thompson v Rosen

HIS HONOUR: By notice of motion filed on 4 July 2019, the second defendant moves the Court for various orders including an order pursuant to UCPR 1.8 for the determination of whether privilege, including legal professional privilege, applies to certain documents produced by Shine Lawyers Pty Limited.

UCPR 1.8 provides as follows:

The plaintiff commenced these proceedings by statement of claim filed on 1 November 2018. She alleges that the first defendant was negligent in performing a hysterectomy, pelvic floor repair, paravaginal repair and cystoscopy on 28 August 2007. She alleges that the second defendant was negligent in managing her vaginal prolapse by inserting an anterior Prolift mesh and posterior Sugisis mesh on 25 February 2008. The defendants have so far not filed defences to these claims.

On 26 March 2019, the defendants issued a subpoena for production of documents addressed to Shine Lawyers Pty Ltd. Documents were produced to the Court in response to that subpoena and are contained in packet S-9. Shine Lawyers has claimed privilege over the documents in that packet.

It seems apparent that the defendants will plead the provisions of the Limitation Act 1969 to assert that the proceedings are time-barred. Although the details of the defendants’ contentions in this respect have not been provided, it seems likely that issues involving s 50D of the Act and discoverability of the plaintiff’s causes of action will be significant. So much is apparent from the evidence that has been filed for the purposes of this application.

For example, in support of the motion, the defendants relied upon two affidavits by their solicitor Michael Andre Swan, sworn respectively on 18 June 2019 and 3 July 2019.

Mr Swan’s first affidavit contains the following paragraphs:

Mr Swan’s second affidavit contains material that includes the following:

The terms of a third affidavit sworn by Mr Swan on 30 July 2019, in support of a notice of motion filed on that day seeking orders pursuant to UCPR 13.4 and/or 14.28, was in similar terms:

The claim for privilege maintained by Shine Lawyers on behalf of the plaintiff is supported by an affidavit affirmed by Annette Maree O’Hara on 13 May 2019 as follows:

It will be apparent that that affidavit is not an entirely satisfactory foundation upon which I could be expected to adjudicate the current application.

When this matter came before me, there was no appearance on behalf of Shine Lawyers. Counsel representing the plaintiff in the present proceedings made it plain that he did not represent that firm and did not assert the privilege claimed by them. He indicated, however, that in his capacity as the legal representative of the plaintiff in the present proceedings, he wished to support the claim inasmuch and insofar as he was able to do so in the interests of the plaintiff in that capacity. As will already be apparent, the issue of whether the present proceedings can be successfully defended upon the basis that they have been commenced out of time is obviously going to loom large.

In my view, it is both unduly cumbersome and inappropriate for me to embark upon a determination of the claim for privilege without the assistance of a representative from Shine Lawyers in the interests of the plaintiff in these proceedings to argue it in suitable detail. I appreciate that there may be significant costs considerations involved in taking that course, and that the plaintiff may be perfectly content not to expend further resources in order to assert and protect her claim in the circumstances. However, be that as it may, I am not prepared to examine the manifold documents in packet S-9 without some detailed guidance from some appropriately instructed representative of the producing party.

It is particularly important that the matter should be approached in this way having regard to the position taken by the defendants, who perceive that the documents or some of them may be determinative of the limitation defence that they have foreshadowed.

Subject to what follows, I will at this stage do no more than list this application before me at some date suitable to the parties in order that they might in the meantime consider their respective positions and indicate in due course what should then happen.

In the course of the brief hearing before me, Mr Romaniuk of senior counsel for the plaintiff made the following observation:

The unredacted portion of a letter dated 24 March 2011 from Shine Lawyers to the plaintiff, which is attached to Exhibit 1 in the present application, is in these terms:

In the hope that it is or may be helpful, I should indicate to the parties that, having examined the documents in packet S-9 over which privilege is asserted, it appears reasonably clear to me that Mr Romaniuk’s preliminary assessment (extracted above) of the likely usefulness of the documents has considerable force.