COLES MYER LIMITED (formerly known as GJ COLES & COY LIMITED)
v.	BAILEY	,,.

Supreme Court of the Northern Territory of Australia. Mildren J.
11 and 18 July 1991 at Darwin

APPEAL  Appeal  against  Master's  decision  whether solicitor's letters requesting medical reports are themselves part of those reports - whether inspection should be ordered - whether letters privileged whether  privileged  impliedly waived - no prejudice to Appellant - Supreme Court Rules  33.03, 33.07(1)(a), 33.08.

Cases applied:

Attornev-General for the Northern Territory v. Maurice	&	Ors 161 CLR 475; 69 ALR 31
Causton v. Mann Egerton (Johnsons) Ltd [1974] 1 All ER 453
Curlex Manufacturing Pty Ltd v. Carlingford Australia General Insurance Limited (1987) 2 Qd.R. 335
Grant v. Downs (1976) 135 CLR 674
Worrall v. Reich [1955] 1 Q.B. 296; 1 All ER 363

Cases discussed:
Anderson v. Smith (unreported, 19.4.90)

General Accident Fire and Life Assurance Comp Ltd v. Tanter (1984) 1 WLR 100; (1984) 1 All ER 35
Prus-Grzybowski v. Everingham (1986) 44 NTR 7

Counsel for the Appellant Defendant: Solicitor for the Appellant Defendant:

A. Wyvill Ward Keller

Counsel for the Respondent Plaintiff:	W.Ryan Solicitor for the Respondent Plaintiff: Cridlands

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT DARWIN

/

No.	41 of 1988
(8801798)
BETWEEN:

COLES MYER LIMITED formerly known  as	G J COLES & COY LIMITED
Appellant

AND:

EILEEN THERESE BAILEY
Respondent

CORAM:	MILDREN J

REASONS FOR DECISION
(Delivered 18 July 1991)

This	is	an  appeal	from ·the. Master	pursuant	to	Rule	77. 05 of

the Supreme Court  Rules. Pursuant  to  Rule  77.05(7)  the  appeal is ,a rehearing de novo. By Summons filed 21 June 1991 the
Appellant (the Second Defendant in  the  action)  sought  an  order that the Respondent (the Plaintiff) "forthwith deliver to the solicitors for the Second Defendant copies of letters from solicitors for the Plaintiff" addressed  to  a  Brisbane orthopaedic surgeon and dated 27 September 1989 and 2 January 1991.

The letters  were  both  written  by the  Respondent's  solicitors to the surgeon who was asked to provide  a  medical  report  to the Respondent's solicitors concerning the Respondent. It is apparent that each letter asks a number of specific questions

concerning the Respondent's medical condition; indeed, the Respondent's solicitors have, by . letter to the Appellant•s solicitors before this application was brought, provided the text of the questions asked of the surgeon.

The reports were originally provided by the Respondent's solicitors pursuant to Rule 33.07(1)(a) of the Supreme Court Rules. That Rule provides:

II  ( 1)	For
(a)

the purposes of Rule 33.08-
a plaintiff shall serve a copy of a medical report in his possession, custody or power which he intends to tender or the substance of which he intends to adduce in evidence at the trial;"

Rule 33.08 provides -
"(1) Unless the Court otherwise orders-
where a party gives notice of trial under Order 48, he shall serve with the notice a copy of all medical reports copies of which he is required to serve in accordance with rule 33.07 and shall, on the same day, serve a copy of the report on each other party who has an address for service in the proceeding;"

In this case, notice of trial was given by the Respondent's solicitors on 24 November 1989. It is apparent that the reports in question were not provided to the Appellant until
14 May 1991. However, that is not the subject of any complaint before me. The issue which the Appellant raises is whether the Respondent can be forced to serve (or permit inspection of) the letters in question. The Appellant submits that the Respondent can be so forced either because the letters are themselves part of the medical reports, or because any legal

professional	privilege	attaching	to	the	letters	has	been
-:··
impliedly waived.

The first argument depends upon the definition of "medical report" contained in Rule 33.03. That rule provides:

"In this Order, unless the contrary appears­ "medical report"-
means a statement in writing by a medical expert concerning the plaintiff; and
includes a document which the medical expert intends should be read with the statement whether the document was in existence at the time the statement was made or was a document which he obtained or caused to be brought into existence subsequently."

Neither party has asked me to examine the letters, the Appellant being content to rely upon the inferences to be drawn from the text of the surgeon's reports and from the text of the questions asked. The first of the surgeon's reports begins with· the words "Thank you for your letter of 27th September, 1989 regarding Mrs. Bailey." There then follows three short paragraphs describing the treatment administered to the Respondent, the history taken from her, the results of the surgeon's examination, the diagnosis made of her condition, and her progress following treatment. The report then goes on to say: "With respect to your specific questions
11      and then provides answers to these questions, the first
of which refers to a fall which the Respondent had in January 1985. That question was this: "Is it likely that the fall occasioned by our client in January 1985 is the sole cause of her continuing problems?" There is no reference in the history

3

recorded by the surgeon to any fall, and it is likely that the
/'
solicitors' letter gave a desc iption of this particular incident.

The second of the surgeon's	reports begins as follows:­ "Thank you for your letter of 2nd January 1991.
I refer to your two particular questions."

The report then proceeds to answer the questions. The first question asked was this: "If our client had not fallen in that manner, would she have been likely to have had a symptom-free period before the early degenerative change would have reached a point where surgery was necessary?" (emphasis mine). The inference is that a description of the manner of the fall was likely to have been given in the Respondent's solicitors' second letter.

The question is whether I can infer from the surgeon's reports and from the questions asked that there is another document or documents which the surgeon intended should be read with his reports. In my opinion it is clear from reading the reports that the surgeon did intend the reader of his reports to be familiar with the contents of both letters. How else can one understand those parts of his reports which provided  answers to specific questions? Further, now that the questions themselves have been provided, I draw the inference that in each of the letters to the surgeon, additional information was provided which the surgeon was being asked to assume for the

purposes	of his reports.	I therefore find that the letters
/.''
from the Respondent's solicitors were intended by the surgeon to be read with his reports, and that, consequently those letters fall within the definition of "medical reports" within the meaning of Rule 33.03. In the result, the Respondent was required, pursuant to Rules 33.07(a) and 33.08, to serve copies of those letters upon the Appellant. As the language of each of those rules is in mandatory terms, it follows that the Respondent has failed to comply with both of those rules.

The next question is how is the rion-observance of the rules to be enforced? The Appellant submits that the consequence of non-compliance is an implied waiver of any privilege attaching to the letters, and that accordingly the Respondent is bound to permit inspection of them in full. The Respondent submits that there has been no implied waiver. The Master also took the view, so I am informed by counsel, that there had been no implied waiver on the basis that there can be no implied waiver until the documents are 'deployed' in evidence at the trial. In support of this conclusion the Master relied upon his own previous decision in Anderson v. Smith (unreported, 19.4.90) in which he applied the decision of Hobhouse J. in General Accident Fire and Life Assurance Comp. Ltd. v. Tanter (1984)  1  W.L.R.  100; (1984) 1  All E.R.  35.  Both parties
submitted that the Court has no other remedy available to it to enforce compliance with Rules 33.07(1) and 33.08. It is first necessary to examine that submission to see if it is correct. In order to do this, it is appropriate to examine the

history of these rules.

/'

Prior to the introduction of the Supreme Court Rules on 1 November 1987, there were similar rules in the former Rules which the present Rules repealed, but they were of comparatively recent origin. Until quite recent times, the position was governed entirely by the common law. The foundation stone of the common law was that the Court had no power to force a party against its will to disclose a document which was the subject of legal professional privilege. This attitude of the Courts was designed to protect the ordinary citizen from tyranny and oppression. As Deane J. put it, in Attorney-General   for   the   Northern    Territory    v.    Maurice    and Others (161 C.L.R. 475 at pps 490-91; 69 A.L.R. 31 at pps 40-
41):
"It is a substantive general principle of the common law and not a mere rule of evidence that, subject to defined qualifications and exceptions, a person is entitled to preserve the confidentiality of confidential statements and other materials which have been made or brought into existence for the sole purpose of his or her seeking or being furnished with legal advice by a practising lawyer or for the sole purpose of preparing for existing or contemplated judicial or quasi-judicial proceedings: see  generally  Baker    v.     Campbell    (1983)  153 C.L.R.
52. That general principle is of great importance to the protection and preservation of the rights, dignity and freedom of the ordinary citizen under the law and to the administration of justice and law in that it advances and safeguards the availability of full and unreserved communication between the citizen and his or her lawyer and in that it. is a precondition of the informed and competent representation of the interests of the ordinary person before the courts and tribunals of the land.Its efficacy as a bulwark against tyranny and oppression depends upon the confidence of the community that it will in fact be enforced. That being so, it is not to be sacrificed even to promote the search for justice or truth in the individual

case or matter and extends to protect the citizen from compulsory disclosure of protected communications or materials to any court or to any tribunal or person with authority to require the giving of information or the production of documents or other materials: see Pearse v. Pearse (1846) 1 De G&Sm 12 at pps 28-29 [63 E.R. 950 at 957]; Baker v.
Campbell (1983) 153 C.L.R. at pps 115-116. The rights of confidentiality which the principle enshrines has recently, and correctly, been described by the European Court of Justice as a "practical guarantee" and "a necessary corollary" of "fundamental, constitutional or human rights": see A.M.& S. Europe Ltd v. Commission of the European Communities [1983] 1 Q.B. 878 at pp 941, 947; Baker
v. Campbell {1983) 153 C.L.R. at 85. Indeed, the plain basis of the decision of the majority of this court in Baker v. Campbell was the acceptance of the principle as a fundamental principle of our judicial system: see Murphy J. {1983) 153 C.L.R. at 88; Wilson J. (1983) 153 C.L.R. at pps 95-96; Deane J. (1983) 153 C.L.R. at pps 116-17; Dawson J. at pps 131-32. Like other traditional common law rights, it is not to be abolished or cut down otherwise than by clear statutory provision. Nor should it be narrowly construed or artificially confined."

Clearly, medical reports made on behalf of a party to litigation on the advice of that party's legal advisers made for the sole purpose of preparing the case for trial are privileged documents: Worrall v. Reich [1955] 1 Q.B. 296; [1955] 1 All E.R. 363; Causton v. Mann Egerton (Johnsons) Ltd [1974] 1 All E.R. 453 at 458, 459-60; Grant v. Downs (1976)
135 C.L.R. 674. The same must apply to a letter to a medical adviser written to that adviser by a party's solicitor for the sole purpose of obtaining such a report.

The strict application of the rules concerning the protection of legal professional privilege placed difficulties in the way of conducting litigation especially in the field of personal injury actions. If the defendant could not obtain the

plaintiff's	medical	reports,	the	defendant	was	at	a
,,,.
disadvantage at the trial. The def ndant was not possessed of all the information needed to make a payment into court, might well be caught by surprise at the trial, and was not encouraged to settle. In order to ensure fairness in settlement negotiations and to avoid surprise at trial, the courts developed a series of processes to avoid these consequences. As Lord Denning M.R. explained in Causton v. Mann Egerton (Johnsons) Ltd [1974] 1 All E.R. at 456:
"The law about medical reports has advanced greatly in the last few years. At one time it was thought that the plaintiff was not bound to submit himself for medical examination by the defendants' doctors. But it has now been decided that, if the defendants reasonably so require, he must do so. The court will order the plaintiff to submit to such an examination and will stay his action until it is had: see Edmeades v. Thames Board Mills Ltd [1969] 2 Q.B. 67; [1969] 2 All E.R. 127; S. v. S, W. v. Official Solicitor [1970] 3 All E.R. 107 at 114; [1972] A.C.
24 at 46 per Lord MacDermott; Lane v. Willis [1972] 1 All E.R. 430; [1972] 1 W.L.R. 326. Those cases dealt only with the medical examination itself. They did not deal with the medical reports consequent thereon. It has since been decided that, it is only fair that they should submit to the plaintiff a copy of the medical report they obtain; and that the plaintiff can properly refuse to submit to a medical examination unless the defendants do agree to supply a copy: see Clarke v. Martlew [1972] 3 All E.R. 764; [1973] Q.B. 58. The law was carried a stage further
in a recent  case, McGinl ey	v.	Burke	[1973 J	2 Al1
E.R. 1010; [1973] 1 W.L.R. 990. Bean J. held that, when the defendants ask for the plaintiff to be medically examined on their behalf, and get it on terms that they show their reports to the plaintiff, then the plaintiffs must show the reports on which he intends to rely. The plaintiff must offer reciprocity. He must be prepared to offer his own medical reports in exchange. Bean J. said [1973] 2 All E.R. at 1012; [1973] 1 W.L.R. at 993:
there must be fairness between the parties. The plaintiff can insist on seeing a medical report sought by the defendant only by offering his own report in exchange.'"

In  Causton,	an attempt was made to take the matter a stage further. The defendant had arranged for the plaintiff to be medically examined. The defendant had not agreed to supply a copy of the report as a condition  for the examination.	The· plaintiff attended the examination and later supplied to the defendant copies of his own medical reports; but the defendant refused		to		supply		to		the		plaintiff		the		reports	it	had obtained.			Lord		Denning			M.R.		held	that	the	defendant	had impliedly		waived the privilege attaching to its reports	but the other members of the Court of Appeal, stamp LJ and Roskill LJ, disagreed.	To have decided	otherwise,	said	Roskill	LJ, would be to "drive the proverbial coach and horses through the well-established common law doctrine of privilege" ([1974] 1 All E.R. at 460). This history of the cases shows that the principle of legal professional privilege remained intact; the remedy which the courts used to ensure fairness was not to force	inspection,	but	to	stay		the	proceedings. The same principles are to be found in Order 33. Rule 33.04 provides:

II ( 1) The defendant plaintiff to examination by time and place.

may,	in		writing,		request	the submit		to	an	appropriate a medical expert at a specified

(2) Where a plaintiff refuses or neglects without reasonable cause to comply with a request under subrule (1), the Court may, if the request was on reasonable terms, stay the proceedings."

In the case of non-compliance with the requirements of Order
33 relating to the service of reports, Rule 33.08(5) provides that, "except with the leave of the court or by consent of the parties,  a  party  shall  not  in  cross-examination adduce

evidence from a medical expert on medical matters unless the
/'
evidence is disclosed by a copy of a medical report' served in

accordance with this Order." In addition, in a proper case, it seems to me that the court could exercise its inherent jurisdiction to stay the proceedings to prevent an njustice being done; or the Registrar could refuse to give the action a date for trial. Be that as it may, it is abundantly clear that Order 33 does not impinge at all upon the fundamental principle that the court will not order a privileged document to be disclosed.

The final question is whether, in the circumstances of this case, there has been an implied waiver of the privilege such that the court can order inspection of that document, either in whole or in part.

The facts certainly disclose no intention on the par£ of the Respondent's solicitors to expressly waive the Respondent's privilege. The Appellant did not contend otherwise, but submitted that there was an implied waiver, and that Anderson
v. Smith and Tanter were inconsistent with the majority of the opinions of the majority of the Justices of the High Court in Maurice.

In Maurice, only Gibbs CJ. expressly referred to Tanter:
"If Hobhouse J. was correct in saying that there is no waiver of associated material until that material is adduced in evidence it follows in the present case that privilege in the source material has not been waived. In my opinion, however, the rule is not so inflexible; the question is whether the

disclosure or use of the material that has been made renders it unfair to uphold the privilege in the associated material, and qlthough the question whether the material has been disclosed has  been used in evidence is relevant, it is not decisive." (161 C.L.R. at 483; 69 A.L.R. at 35).

On a careful consideration of the other judgments of the  Court, it seems to me to be arguable that none of the judges were prepared to hold that there can be no implied  waiver prior to the hearing, and that therefore Smith v. Anderson, Tanter, and Prus-Grzybowski v. Everingham  (1986) 44 N.T.R. 7, a decision of this court per Kearney J., were all wrongly decided.

However, it is not necessary for me to decide that question, because, even if the relevant principle is that stated by  Gibbs CJ. in Maurice, in my opinion the disclosure made by the Respondent of the medical reports which refer to the letters and of the questions contained in the letters to the Respondent's orthopaedic surgeon does not render it unfair to uphold the privilege  in relation to the rest of the material in the letters, especially having regard to the fact that none of the material has yet been sought to be adduced in evidence. If, as I have found, the surgeon has been provided with additional material in the letters which he intended should be read with his reports, the consequence of not serving upon the Appellant copies of those letters is that the evidence of that surgeon is inadmissible without the leave of the trial judge. Further, the Appellant could apply for a stay of proceedings for non-compliance with Rules 33.07, 33.08(2) and (possibly)

33.10 if any injustice to it is being done. In those circumstances I do not consider it to be unfair to the Appellant to uphold the privilege in relation to those parts of the letters to which the Respondent maintains its claim for privilege at this stage, particularly as in my opinion the Appellant is at this stage not prejudiced by any partial disclosure. Indeed, if, as I have found, the additional information provided to the surgeon merely relates to the circumstances of the fall, this information, if is has not already been provided to the Appellant, can be obtained by the
Appellant either by requesting particulars of the fall, or by

administering interrogatories or both. In these circumstances it is difficult to see what prejudice the Appellant has sustained at this stage of the proceedings by the partial disclosure.

Accordingly,.pursuant to Rule 29.11 the'Appellant is entitled to an order for inspection within 21 days of so much of the original letters to the surgeon the contents of which have already been disclosed by the Respondent. The Respondent may comply with this order by isolating those parts of the letters for which it maintains its privilege in accordance with the practice referred to by McPherson J. in Curlex Manufacturing Pty Ltd  v.  Carlingford  Australia  General Insurance Limited
(1987) 2 Qd.R. 335 at 338-9. The appeal is otherwise dismissed with costs.