Attard v Hore & QBE Insurance Ltd [2002] QSC 437

State Reporting Bureau Transcript of Proceedings 1 4 th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. [2002] QSC 437 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DUTNEY J Mackay Registry No S30 of 2002 LORETTA KAY ATTARD Plaintiff and BENJAMIN PETER HORE and QBE INSURANCE LIMITED First Defendant Second Defendant ROCKHAMPTON ..DATE 30/08/2002 ORDER REVISED COPIES ISSUED State Reporting Bureau Date: 3 September, 2002 -- 1 of 6 -- 30082002 T8-9/RAP09 M/T ROK2/2002 (Dutney J) ORDER 2 1 10 20 30 40 50 60 HIS HONOUR: This is an application by the defendants in a personal injuries action arising out of a motor vehicle accident for disclosure of the plaintiff's Centrelink file. The statements of loss and damage, which have been filed on behalf of the plaintiff, disclose that there is a claim for economic loss not discounted as the result of any residual earning capacity. The material filed on behalf of the defendants in support of their application discloses that in order to obtain either parenting or New Start allowances from Centrelink, information that is relevant to working capacity has to be disclosed. It is thus said that the material contained on the file would be directly relevant to an issue in the trial. The plaintiff resists the application on the basis, firstly, that the Centrelink file is not in the possession or under the control of the plaintiff. I have been referred to a decision of Robertson DCJ in Erskine v McDowell (2001) QDC 192, in which his Honour, in paragraph 11 of the judgment, reaches the conclusion that the Centrelink file was not in the power or control of the plaintiff. The case is somewhat different from the present one because there was no argument in that case as to the relevance of the material in the file. It was a case of a de facto property dispute in which the existence of a de facto relationship was conceded but there was a debate about the extent of the relationship and its duration. Because of the information -- 2 of 6 -- 30082002 T8-9/RAP09 M/T ROK2/2002 (Dutney J) ORDER 3 1 10 20 30 40 50 60 supplied to Centrelink, the file would have, in that case, contained information which identified, at least generally, the period during which the parties claim to have been in the de facto relationship. Notwithstanding that the file was not in the possession or control of the parties, Robertson DCJ ordered the defendant to obtain copies of the file under the Freedom of Information Act. Apparently if a request is made by the Centrelink customer, a copy of the file will be provided under that legislation without any fee being payable. His Honour exercised power under rule 223.4(b) or, alternatively, rule 367 to make the orders which he did. The second basis of the objection by the plaintiff in this case is that the file is not directly relevant. It is said that the provisions of the relevant legislation require disclosure of all information concerning work history and medical conditions as a condition of being able to institute the proceedings, and that is certainly right. It was submitted on behalf of the plaintiff that to require this further step, that is the disclosure of Centrelink file, would be an unwarranted intrusion into the civil liberties of the plaintiff. I am not persuaded that the civil liberties argument can be sustained in a case where a party comes to the Court seeking an order from the Court that she be paid a substantial sum of -- 3 of 6 -- 30082002 T8-9/RAP09 M/T ROK2/2002 (Dutney J) ORDER 4 1 10 20 30 40 50 60 money as a result of injuries which she says she has suffered. It seems to me that the price of seeking such an order from the Court is disclosure of a great deal of material which in other circumstances would be considered confidential. Unfortunately for plaintiffs, that is the price they pay if they want to receive a substantial damages award. The question of whether the file is directly relevant concerns me a little. The contents of the file are unknown. It is not known whether the forms lodged are consistent or inconsistent with the claims being made by the plaintiff in the action. Nonetheless, on balance, I am persuaded that they probably have sufficient relevance to meet the test identified by Demack J in Robson v REB Engineering Pty Ltd (1997) 2 Queensland Reports 102 at 105, where his Honour held that directly relevant meant "something which tends to prove or disprove the allegation in issue". Although the evidentiary value of a statement as to her working capacity made by the plaintiff in applying for a benefit from Centrelink may not have a great deal of weight, it does seem to me to be relevant to the question of whether or not she has any residual working capacity. In view of Judge Robertson's decision in Erskine, a decision which seems to me to be correct in so far as it refers to power and control, I do not think that the ordinary disclosure rules of the Court are sufficient to cover a file which is in -- 4 of 6 -- 30082002 T8-9/RAP09 M/T ROK2/2002 (Dutney J) ORDER 5 1 10 20 30 40 50 60 the possession of a Commonwealth department. The issue then is whether I am persuaded that I should make orders under the other powers which the rules provide to direct parties to act in particular ways. I am told, and it seems to be correct, that the department is not amenable to the usual third party processes of the Court. Neither is the department prepared to act on the statutory consent which the plaintiff has given to access records held by Government departments. The file will not be released by Centrelink to the solicitors for the defendant unless a particular authority is provided by the plaintiff in that respect. In all the circumstances it seems to me to be a slight intrusion on the rights of a plaintiff to require the plaintiff to give a further authority specifically directed to Centrelink to release the file to the solicitors for the defendant for the purposes of the litigation. In view of the relief which the plaintiff seeks, it seems to me that the slight intrusion to which I have referred, when weighed against the benefit which the plaintiff seeks to obtain from litigation is such that the intrusion is warranted. Accordingly, I propose to order that the plaintiff execute an authority provided to her by the solicitors for the defendants -- 5 of 6 -- 30082002 T8-9/RAP09 M/T ROK2/2002 (Dutney J) ORDER 6 1 10 20 30 40 50 60 directed to Centrelink requesting the release to those solicitors of the Centrelink file. Now is that all you require, Mr Hollyoak? MR HOLLYOAK: I was just checking with my solicitor, your Honour. I believe so. That’s - I understand that’s all we need is that specific authority which I think is already exhibited to the material. HIS HONOUR: All right. Well, I make an order in those terms then if you are satisfied that that is all you require? MR HOLLYOAK: Yes. Would your Honour mind giving me liberty to apply in the event that there is some consequential paperwork that’s necessary? HIS HONOUR: All right. Well I give the parties liberty to apply. And what about costs? … HIS HONOUR: What I propose to do, Mr Hollyoak, is order that the plaintiff pay the defendants' costs of the application in any event, and I make that order. ----- -- 6 of 6 --