IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Case No. CI-15-00678

JACQUELINE BEHAN	Plaintiff	
		
v		
		
MELBOURNE HEALTH 	Defendant	

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JUDGE:	HIS HONOUR JUDGE PILLAY	
WHERE HELD:	Melbourne	
DATE OF HEARING:	16 December 2020	
DATE OF RULING:	5 February 2021	
CASE MAY BE CITED AS:	Behan v Melbourne Health	
MEDIUM NEUTRAL CITATION:	[2021] VCC 44 		

REASONS FOR RULING
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Subject:	Practice and Procedure 
Catchwords: 	Waiver of privilege – Substance of the evidence
Legislation Cited:	Evidence Act 2008
Cases Cited:	Mann v Carnell (1999) 201 CLR 1; Baker v Campbell (1983) 153 CLR 52; Lactalis Jindi Pty Ltd v Jindi Cheese Pty Ltd [2013] VSC 475; Adelaide Steamship v Spalvins (1998) 81 FCR 360; Ampolex Ltd v Perpetual Trustee Co Ltd (1996) 40 NSWLR 12; Sovereign Motor Inns Pty Ltd v Bevillesta [2000] NSWSC 521; QUBE Logistics (Vic) Pty Ltd v Wimmera Container Line Pty Ltd [2013] VSC 695; French v Triple M Melbourne Pty Ltd (Ruling No 1) [2008] VSC 547; Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd [1997] FCA

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	P Lamb	Slater and Gordon Lawyers	
			
For the Defendant	S Farone, Solicitor	Minter Ellison	

HIS HONOUR:

1	These reasons concern the plaintiff’s application for orders that the defendant produce statements, conference notes or records of interview of Ms Langford and Mr Offerman that form the basis of their instructions which were relayed to the expert witness, Mr Wayne Dite, in a letter of instruction dated 31 August 2016 from Minter Ellison Lawyers.
2	It was accepted by the parties that the statements of both Ms Langford and Mr Offerman (including conference notes or records of interview) (“the privileged material”) attracted legal professional privilege.  However, the plaintiff argued that such privilege had been waived upon service of Mr Dite’s report which had relied on the instructions derived from the two witnesses and set out in the letter of instruction.  The plaintiff specifically relied on s122(3) of the Evidence Act.  
BACKGROUND
3	The claimant, Ms Behan, suffered an above the knee amputation of her left leg in 1996.  In mid-2011 she underwent osseointegration surgery and was then referred to the defendant at its Royal Melbourne Hospital Parkville Campus for rehabilitation.  She began this rehabilitation in September 2011.  Part of that rehabilitation involved the use of a stationary exercise bike.  The first of these sessions occurred on 24 November 2011.  Her rehabilitation sessions were initially under the care of Ms Langford, a physiotherapist.  On about 8 December 2011, Ms Langford referred Ms Behan to Mr Offerman, an exercise physiologist, to assist with her rehabilitation program.  Further rehabilitation sessions then occurred.  On 14 February 2012, Ms Behan had a consultation and review with Ms Langford.  She then went directly to her rehabilitation session with Mr Offerman.  During the course of this session with Mr Offerman, Ms Behan “… fell heavily as she attempted to get onto and/or to operate an exercise bike”.
4	Ms Behan claims that this fall occurred by reason of the negligence of the defendant in failing to properly care for and assist her during her rehabilitation and particularly on 14 February 2012.  
5	During the conduct of the litigation, the defendant’s lawyers, Minter Ellison, commissioned an expert report from Mr Wayne Dite, an exercise physiologist.  The letter commissioning that report and written by Minter Ellison is dated 31 August 2016.  The letter first sets out in chronological form Ms Behan’s background and past medical history.  It then comes to the surgery performed in 2011 at paragraph [3].  At paragraphs [4] to [12], it summarises Ms Behan’s interactions with Ms Langford and Mr Offerman based, apparently, on the treatment notes.
6	Then, at paragraph [13] the letter of instruction states “Mr Offerman’s instructions are that: … “.  It goes on to record specifically from sub-paragraphs (a) – (h) Mr Offerman’s experience, his interactions with the plaintiff and then in detail what occurred prior to and at the time of the fall.  Finally, at sub-paragraphs (g) and (h), it records his opinion as to the cause of the incident.  
7	The letter goes on at paragraph [14] where it states, “Ms Langford’s instructions are that …” and records at sub-paragraphs (a) – (f) Ms Langford’s instructions and opinion regarding her interaction with Ms Behan in similar form as set out above with Mr Offerman.
THE DISPUTE
8	The plaintiff argues that the defendant has lost the privilege associated with the privileged material.  The plaintiff makes her argument on the basis that the defendant has fallen foul of s122(2) of the Evidence Act and particularly sub-s(3)(a) in that it has “knowingly and voluntarily disclosed the substance of the …” privileged material.  The relevant sections of s122 are set out below:
“(2)	Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. 
 (3)	Without limiting subsection (2), a client or party is taken to have so acted if— 
(a)	the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or 
(b)	the substance of the evidence has been disclosed with the express or implied consent of the client or party.” 
9	The legislation seeks to encapsulate the common law position espoused in Mann v Carnell. That case considered whether privilege was waived where the conduct of the disclosing party was inconsistent with the maintenance of the privilege.  The Evidence Act here, however, goes one step further at section 122(3) in specifying that a party has acted in such a manner if the party has knowingly and voluntarily disclosed the substance of the evidence to another person.  The question to answer then is whether the recounting of instructions of Ms Langford and Mr Offerman in the form that the defendant has set out in its letter of instruction to Mr Dite constituted a knowing and voluntary disclosure of the substance of their evidence.
LEGAL PRINCIPLES
10	The starting point is that legal professional privilege is a fundamental common law right or immunity. It should not be dispensed with lightly.
11	However, in circumstances where the terms of s122(3) are satisfied, that privilege will be lost.  In Lactalis Jindi Pty Ltd v Jindi Cheese Pty Ltd, Almond J stated at paragraph [60]:
“As stated previously, once either subs (a) or (b) is satisfied in s 122(3), a party is taken to have acted in a way that is inconsistent with the party objecting to the adducing of the evidence. It is not necessary additionally to consider whether the party has acted inconsistently under s 122(2), nor is there an “overriding principle of fairness operating at large”.  (citations omitted)
12	In determining whether the substance of evidence has been disclosed, his Honour Almond J, in Lactalis, went on to point out an assessment of the degree of the disclosure must be made.
13	In Adelaide Steamship v Spalvins, which was quoted with approval by Almond J, the Court there held that this required a quantitative assessment of whether there has been sufficient disclosure to warrant loss of the privilege.
14	Voluntary has been interpreted to mean something other than under the compulsion of law. In Sovereign Motor Inns Pty Ltd v Bevillesta, the Court affirmed what was said by Goldberg J in Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd; that it can be within the ostensible authority of a solicitor to disclose  a privileged document on the client’s behalf. Thus, a voluntary disclosure made by a solicitor is on behalf of the client.
15	While the disclosure must be knowing and voluntary, this does not mean that the relevant person needs to understand or intend that disclosure will waive privilege.
APPLICATION OF PRINICIPLES
16	Dealing first with whether there has been knowing and voluntary disclosure.  Here it was the defendant’s solicitor who first interviewed both Ms Langford and Mr Offerman. On the basis of the information provided to her, she then commissioned Mr Dite.  In the letter commissioning Mr Dite, deliberate words were used being in the form that “Ms Langford/Mr Offerman’s instructions are that…”.  This appears to be a very deliberate choice of words designed to convey to Mr Dite that both witnesses had firm recollections and such information could be relied on.  This is to be contrasted with letters of instruction which are often written to experts couched in the language of asking them to make a number of assumptions.  This is a deliberate choice of words I find.  Further, the extent of the instructions disclosed to Mr Dite signify an intent to give him a comprehensive outline of what each witness will say and the basis upon which they say it.  In this regard it is relevant that the author of the letter included reference to the experience of each of the witnesses in their chosen profession.  Furthermore, for example, Mr Dite was informed that Mr Offerman had never previously had a patient fall from an exercise bike.  How this could be used by Mr Dite in the formulation of his expert report is unclear.  However, the relaying of these instructions once again appears to be for the deliberate purposes of informing him not only of the experience of the witness but also perhaps to reinforce the defendant’s position that this was a rare event.  Further, for example, Mr Dite is informed at sub-paragraph [13] (g) of the letter of instruction that Mr Offerman’s view was that even in retrospect nothing could have been done to prevent this accident.  What use Mr Dite might make of this comment when he was being tasked with providing an expert opinion regarding a prospective view of the occurrence of the incident is unclear.  I raise these matters to make the point that there was a considerable amount of material provided to Mr Dite in the relaying of the instructions from Ms Langford and Mr Offerman that went beyond simply providing him with the factual circumstances surrounding the accident in order for him to provide an opinion.
17	Having commissioned a report on the basis of this very broad material from Mr Offerman and Ms Langford, the defendant was able to advise its client of the strength or weakness of its position in the current litigation.  It was under no compulsion to serve the expert report in the course of the proceedings.  However, it did so.  I consider this to be a voluntary act done to further the interests of the defendant.  
18	The report of Mr Dite refers to the fact that he had reviewed the documents provided.  This necessarily included the letter of instruction.  It appears that the expert report and the letter of instruction then were exchanged with the plaintiff. To this point, I find that the defendant’s exchange of the report of Mr Dite was knowing and voluntary.   
19	Having exchanged the letter of instruction, it now falls to be determined whether the references at paragraphs [13] and [14] to Ms Langford’s and Mr Offerman’s instructions amount to a disclosure of the substance of their evidence.
20	As noted above, each case turns on its own specific facts and circumstances.  It calls for judgment of degree.  This case has its own very specific peculiarities.  These lead me to the conclusion that there has been a substantial disclosure of the evidence of Ms Langford and Mr Offerman.  I come to that conclusion for the following reasons.  First, the letter is couched in language which is very specific as to the fact that the information being recounted to Mr Dite was from the instructions of both witnesses. To the contrary J Forrest J in French v Triple M Melbourne Pty Ltd, when dealing with the common law principles did not consider the use of such language particularly important. He considered such forms of communication between parties as being day to day part of practice. What, in my view, makes this case different to French is that this terminology was deployed in instructing an expert and not between lawyers for the parties. This meant that through its extensive use of the privileged material the defendant brought into its case an independent expert witness with a supportive opinion. Second, the information recounted was extensive.  It begins with the qualifications of each witness and their experience.  It continues to describe their initial interactions with the plaintiff, proceeds to their interactions with her on the day of the accident and from Mr Offerman at the time of the accident.  It goes even further in Mr Offerman’s case to describe his retrospective opinion as to how the accident might have been avoided, if at all.
21	Case law on other factual circumstances is of limited benefit.  However, I do note that the courts have found that simple references in correspondence to the overall opinion of Counsel on a particular point as waiving privilege in the entirety of the advice itself.  
22	For these reasons I find in the plaintiff’s favour and I would order that the statements, records of interview and notes of conference in respect of Ms Langford and Mr Offerman be produced by the defendant to the plaintiff.  Given the overall outcome of this matter, which was also in respect of adequacy of interrogatories and discovery where the parties each enjoyed an element of success, I will reserve costs.
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