Bayliss v Cassidy [1994] QSC 332 [1995] 2 Qd R 464

IN THE SUPREME COURT OF QUEENSLAND No. 4786 of 1988 Before Moynihan J [Bayliss v. Cassidy & Ors] BETWEEN: PETER JOHN BAYLISS Plaintiff AND: ROBERT BERNARD CASSIDY First Defendant AND: NEVILLE JOHN HARPER Second Defendant AND: DESMOND GORDON STURGESS Third Defendant AND: THE STATE OF QUEENSLAND Fourth Defendant REASONS FOR JUDGMENT - MOYNIHAN J. Judgment delivered : 16 December, 1994 CATCHWORDS: Claim of Legal Professional Privilege - original document not subject to privilege - Copy for the purpose of obtaining advice not privileged from inspection. Claim of Privilege on ground of Public Policy - not made out in the circumstances. -- 1 of 12 -- 2 Counsel: Applicant: R.G. Atkinson Respondent: R.V. Hanson QC & G. Brandis Solicitors: Applicant - K.M. O'Shea, Crown Solicitor Respondent - Bayliss Rodgers Solicitors Hearing Date(s): 21 November, 1994. -- 2 of 12 -- IN THE SUPREME COURT OF QUEENSLAND No. 4786 of 1988 Before Moynihan J [Bayliss v. Cassidy & Ors] BETWEEN: PETER JOHN BAYLISS Plaintiff AND: ROBERT BERNARD CASSIDY First Defendant AND: NEVILLE JOHN HARPER Second Defendant AND: DESMOND GORDON STURGESS Third Defendant AND: THE STATE OF QUEENSLAND Fourth Defendant REASONS FOR JUDGMENT - MOYNIHAN J. Judgment delivered : 16 December, 1994 This matter was argued on the basis that two issues remained to be determined arising out of the Defendants' summons of 6 July 1994. The first was whether the Plaintiff should be required to file and serve a further affidavit of documents describing the documents contained in Part 2 of the first Schedule to his affidavit of documents filed on 24 July 1990. I indicated at the hearing that I was not prepared to make an order to that effect and I shall shortly recapitulate -- 3 of 12 -- 2 the reasons I orally expressed. By a further affidavit of documents filed on 27 October 1994, the Plaintiff acknowledged that he had in his possession or photocopies of patient records relating to 14 patients. The patients were identified by a letter of the alphabet and by a date on the patient record card. The affidavit went on to particularise objections to producing for inspection any of the documents so discovered on the grounds of legal professional privilege or on a ground shortly described as that to do so would be contrary to the public interest. It will be necessary to give consideration to the grounds for objection to production later. In the meantime the affidavit of 12 October 1994 may be accepted as having rectified two difficulties if not defects in respect of the plaintiff's earlier affidavits of documents sworn on 30 October 1989, 24 July 1990 and 17 May 1994. The earlier affidavits, particularly that of 17 May 1994 had been defective in a lack of sufficient identification of documents which were claimed to be privileged from production for inspection. It seems to me clear enough that the identification of documents in the affidavit of 12 October referred to documents more generally described in the earlier affidavits, particularly that of 17 May. Counsel for the Plaintiff confirmed that that was so. In other words, the affidavits are talking about the same documents. The affidavit of 27 October is not introducing further documents. Secondly, the affidavit of 27 October was more explicit than the previous affidavits had been as to the basis of the claim of privilege. In those circumstances, as was acknowledged by his counsel, the Plaintiff continued to be bound by paragraph 8 of his further affidavit of documents of 18 May where he swore in the usual form that there were no documents in his possession or power or in the possession or power of -- 4 of 12 -- 3 any other person on his behalf other than those which had been disclosed. In this context and since the affidavit of 12 October did not discover fresh documents, but rather more particularly identified documents earlier disclosed, I did not think it necessary to require the Plaintiff to swear again that there were no further discoverable documents in his possession, custody or power. It remains to consider the Plaintiff's claims of privilege precluding production and inspection of the patient records. The Plaintiff argued as a threshold question that the documents are not sufficiently related to issues in the proceedings. Before considering those matters it is necessary to say something about the action in the context of which they arise. The first Defendant was, at the times material to the action, an officer of the Queensland Police Force. On 20 May 1994, he arrested the Plaintiff, a medical practitioner, on the charge that he "conspired unlawfully to use force with intent to procure the miscarriage of women". That is an offence constituted by s.224 of the Criminal Code. The statement of claim alleges that the arrest was caused or effected maliciously and without reasonable and probable cause. It further alleges that the prosecution of the charge was continued maliciously and without reasonable cause and that the first Defendant did not believe on reasonable grounds that the offence charged had been committed. The statement of claim goes on to allege various other unlawful acts associated with the arrest or charge and various allegations are made implicating the second and third Defendants in those activities. The fourth Defendant is alleged to be liable for damages in respect of any tort committed by the first Defendant in the performance of his duties as a member of the Queensland Police Force. -- 5 of 12 -- 4 The statement of claim seeks damages for false imprisonment, malicious process, malicious prosecution and trespass to goods and it claims exemplary damages. The trespass to goods claim is a reference to patient records seized under a warrant subsequently held to be invalid. The defence puts in issue the allegations to which I have averted. It also alleges that before the arrest the first Defendant, with reasonable cause, suspected that the offence charged had been committed by the Plaintiff and that the arrest and other conduct complained of was justified. There are, moreover, answers to interrogatories which indicate the first Defendant had regard to certain of the contents of the originals of the documents copies of which are now the subject of the claim of privilege before he arrested and charged the plaintiff. The considerations being those to which I have averted, I do not think the point to the effect that the documents are not sufficiently related to issues in the proceedings is well taken. It is therefore necessary to consider the claims of privilege and public interest founding refusal to produce the patient records for inspection. I will do so in that order. The documents in question are copies of patient records which were seized prior to the plaintiff's arrest and charge in reliance on the warrant subsequently held to be invalid. The original documents were returned to the Plaintiff after the warrant was declared invalid. It was accepted by the Plaintiff's counsel that the original documents were not made for the purpose of obtaining legal advice and could not be the subject of a successful claim on that ground. The claim of legal professional privilege is founded on the photocopy -- 6 of 12 -- 5 documents being created for the sole purpose of being provided to the Plaintiff's legal advisers for the purpose of advice and defending the charges laid against him and in respect of an application regarding his bail conditions. In recent times a number of cases have reviewed the authorities dealing with the question of copies being privileged from production for inspection on the basis of legal professional privilege. The most notable of these cases seem to be J N Taylor Holdings Ltd (in Liquidation) & Anor -v- Bond & Ors (1991) 57 S.A.S.R. 21 at 25, a decision upheld on appeal, Id. 38, Nickmar Pty Ltd & Anor -v- Preservatrice Skandia Insurance Ltd (1985) 3 N.S.W.L.R. 44, Vardas -v- South British Insurance Co Ltd (1984) 2 N.S.W.L.R. 652 and Ventouris -v- Mountain, the Italia Express [1991] 1 W.L.R. 607. Each of these cases seems to me to support the conclusion that, save what might be termed exceptional circumstances, a copy of a document is not privileged where the original would not satisfy the test laid down by Grant -v- Downs (1976) 135 C.L.R. 674. I do not intend completely re-traversing the ground covered by those cases. I will advert to some of the more salient aspects. I should perhaps mention that whether a sole purpose or a dominant purpose test is applied as the criteria for establishing privilege is irrelevant to the issues presently under consideration. The learned author of Bray Law of Discovery (1885) concluded that a copy or extract made for what he described as "privileged purposes" was prima facie in no better position than the original if the latter was not privileged; see at 391, 395. He considered that Lyle -v- Kennedy (No. 3) (1884) 27 Ch. D 1 and The Palermo (1883) 9 P.D.6 which held that privilege attached to copies were exceptions to the prima facie rule. This was because in those cases the copies either "betrayed the advice given" or -- 7 of 12 -- 6 reflected in their selection "deliberate informed judgment" by a solicitor. That those cases did reflect such exceptions was accepted in J.N. Taylor Holdings Ltd, Nickmar Pty Ltd and Vardas. I should say that in the present case it was not argued that the documents came within any such exception - I do not suggest that it could have been. Perhaps the simplest exposition in the more recent cases of the view that copies of unprivileged originals are privileged is to be found in McCaskill -v- Mirror Newspapers Ltd [1984] 1 N.S.W.L.R. 66. Doubt was cast on McCaskill in the subsequent cases of Vardas and Nickomar. McCaskill upheld the privilege of the copy because the making of the copy satisfied the sole purpose test. It is suggested in Taylor Holdings (ante) that McCaskill was mistaken in selecting the time at which the copies was made as the time for determining whether the sole purpose was satisfied. As Olson J (a member of the Full Court in Taylor Holdings) in my view demonstrated at 43, the cases relied on for that conclusion were not concerned with the destruction of an original after its subsequent copying. In Lambert -v- Holm 1914 3 K.B.86 the Court of Appeal dealt with a claim of privilege for the manuscript of shorthand notes taken in anticipation of the action in which the claim arose. The argument that the material came into existence for the purpose of attracting legal professional privilege was rejected on the basis that all that had been done was to reproduce in physical form what was said by the witness and that was not privileged. As was pointed out by Denning MR in Buttes Gas & Oil Co -v- Hammer (No. 3) 1981 Q.B. 223 at 224 the production of an unprivileged original could be procured by a subpoena duces tecum and the original put into evidence; see also Ventouris (post) at 611. By the same token it was pointed out that, strictly applied the argument could -- 8 of 12 -- 7 mean that a copy for the sole purpose of including it in counsel's brief would be privileged although the original was not. In Kaye -v- Hulthen 1981 Qd. R. 28 copies of documents made on third party inspection were held to be privileged. The case was referred to in McMahon -v- Cooper 1989 2 Qd. R. 418. Kelly SPJ accepted it as indicating that the situation "could arise" in which legal professional privilege would not attach to original document but could attach to copy. Kneipp J at 425 thought the result reached in the case and the decision to which it applied were anomalous. It was unnecessary for the court in McMahon to reach a concluded view about the matter. Some of the considerations of anomaly are perhaps as indicated above, e.g. the production of the original would be compellable. For others see the decision of Clarke J in Vardas (supra). In Ventouris -v- Mountain (the Italia Express) 1991 1 W.L.R. 607 underwriters had successfully maintained a claim for legal professional privilege in respect of documents they have obtained from a relative of the plaintiff. The Court of Appeal allowed an appeal against the determination that the documents were privileged. The House of Lords refused leave to appeal from that decision. In the course of his judgment Bingham L.J. in the Court of Appeal undertook a comprehensive review of the earlier decisions. The Court of Appeal concluded that a document which existed before litigation was contemplated and then obtained for the purpose of litigation was not privileged for production or inspection. In the present case neither the original documents nor the information they recorded can be the subject of a successful claim of legal professional privilege. I can find no compelling reason for attributing privilege to a copy of the information when the purpose of making the copy was to use it to obtain legal advice. The balance of the -- 9 of 12 -- 8 more recent authorities supports the conclusion reached by Bray in 1885. Taylor, Nickman, Vardas and Ventouris in particular seem to me to effectively account for earlier cases which might be said to be to the contrary. There is no basis to depart from the prima facie rule stated by Bray in respect of the documents here. They are not privileged from production for inspection on the ground of legal professional privilege. The claim of public interest privilege is on the basis that the documents recorded information: "... of confidential nature concerning the health and medical treatment of patients under my care: and, in particular, information relating to the therapeutic termination of pregnancy in relation to some of those patients, the sterilisation of others and other consultations. The disclosure of the contents of any of the said documents would result in the disclosure of the identity of any patient and information provided to me by that patient in the course of the doctor/patient relationship". The Defendants indicated before me that they have no interest in the identity of the patients and are prepared to accept inspection on the basis that the names and other identifying factors are concealed. The Defendants also accepted that they should not use information which was discovered to pursue the identity of any of the patients to whom the records related from other sources. To my mind the better view is that the copy documents are not privileged from production and inspection on the ground of legal professional privilege. It is therefore necessary to consider the claim of privilege what I might compendiously describe as based on public interest. The plaintiff seeks to advance under this head a consideration of the balancing of two competing interests, the public interest and the interest of justice in the -- 10 of 12 -- 9 particular case; see Sankey -v- Whitlam (1978) 142 C.L.R. 1 at 43, 63, 64, 95; Burmah Oil Co. Ltd -v- The Bank of England (1980) A.C. 1090 at 1134, 1144; Alfred Compton Amusement Machines Ltd -v- Customs & Excise Committee (No. 2) [1974] A.C. 405 at 425) the confidentiality under which the information was received being a matter for consideration as distinct from a separate ground of the claim; Science Research Council -v- Nasse (1980) A.C. 1028 at 1065, R -v- Toohey ex parte Northern Lane Council (1981) 151 C.L.R. 170 at 222. In the present circumstances the considerations of justice in the particular case turn on the issues raised by the defence which I identified earlier. In this context one of the issues, broadly speaking, is whether terminations were therapeutic (lawful) or unlawful. The case may be distinguished from Morrow & Ors -v- Director of Public Prosecutions & Ors (1994) Crim. L.R. 58. That case involved a prosecution for a public order offence against professors who believed illegal abortions were taking place in premises. There was an issue as to whether the conduct was reasonable as directed towards the prevention of crime. It was common ground that the demonstrators honestly believed that offences, in the form of illegal abortions, were being carried out on the premises. That was sufficient to found the defence and the documents which were sought were neither relevant nor material to the defences. I am prepared for present purposes to accept that there are indications of legislative policy supporting a conclusion that confidentiality attaches to patient records as a matter of public interest; see for example Health Rights Commission Act 1991 (Qld). ss. 39(3) and 58, Medical Act 1939 (Qld) S. 67 and the Health Insurance Act 1973 (Commonwealth) ss. 71A and 130. I am also prepared to accept for present purposes that public interest immunity may be claimed by a private litigant when the -- 11 of 12 -- 10 information the protection which is sought belongs to a claimant to which public interest immunity applies; D -v- N.S.P.C.C. 1978 A.C. 171; Moray -v- Director of Public Prosecutions (ante), Aboriginal Sacred Sites Protection Authority -v- Morris; re the Warumunga Land Claim (1986) 10 F.C.R. 104. In X -v- Y & Ors (1988(2)) All E.R. 648 it was held that the public interest in preserving the confidentiality of hospital records identifying potential AIDS sufferers outweighed the public interest in the freedom of the press to publish the information. This was because AIDS sufferers ought not to be deterred by fear of discovery from seeking treatment, and because free and informed public debate against AIDS could take place without publication of the confidential information sought. Accepting for the moment that those broad considerations are directly applicable to the present case, there are to my mind two circumstances which distinguish it from X -v- Y & Ors. The first is that, as I have indicated, the Defendants have no interest in the disclosure of the identity of the patients. The second is the direct relevance of the material to establishing the defences by which the Defendants seek to resist the claims against them. In the circumstances, therefore, the Defendants in my view are entitled to inspection of the patient records with the identifying features removed. There is no suggestion that this could not be achieved by the records being made available on the basis of the names of the patients being obliterated with identification by letters of the alphabet as has been done in the affidavit of documents. I therefore order that the Plaintiff produce for the Defendants inspection the documents specified in paragraph 2 of his affidavit sworn on 12 October 1994 and filed on 27 October without the name or other information identifying the particular patient. -- 12 of 12 --