Wilson v State of New South Wales [2003] NSWSC 805

New South Wales Supreme Court

CITATION : Wilson v State of New South Wales [2003] NSWSC 805 revised - 3/09/2003 HEARING DATE(S) : 29/8/03 JUDGMENT DATE : 1 September 2003

JUDGMENT OF : Bell J at 1 DECISION : The plaintiffs' legal representatives may inspect the psychology file of former Detective Michael O'Donnnell produced by the Commissioner of Police upon undertaking not to copy any part of it and not to disclose its contents to any person, including the plaintiffs, unless by further order of the Court

CATCHWORDS : Professional confidential relationship privilege - relationship between Part 36 r 13 Supreme Court Rules and Part 3.10 of the Evidence Act LEGISLATION CITED : Evidence Act 1995 Supreme Court Rules 1970 Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; 201 CLR 49 CASES CITED : Mok v NSW Crime Commission [2002] NSWCA 53 Urquhart v Lanham [2003] NSWSC 109 Wran v Australian Broadcasting Commission [1984] 3 NSWLR 241 Anthony Wilson (1st Plaintiff) PARTIES : Lynette Wilson (2nd Plaintiff) Joyce Starkey (3rd Plaintiff) FILE NUMBER(S) : SC 20218/99 AJ Bartley SC / A Kostopoulos / L Whalan (1st Plaintiff) COUNSEL : AJ Bartley SC / D Campbell SC / A Kostopoulos / L Whalan (2nd Plaintiff) D Campbell SC / A Kostopoulos / L Whalan (3rd Plaintiff) B Donovan QC / C Hodgson (Defendant) Greg Walsh (1st and 2nd Plaintiff) SOLICITORS : Verekers, Solicitors (3rd Plaintiff) I V Knight (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

Monday 1 September 2003

20218/99 Wilson v State of New South Wales

JUDGMENT 1 BELL J: The plaintiffs served a subpoena on the Commissioner of Police (the Commissioner) seeking the production of documents identified in the schedule thereto. The Commissioner moved on notice seeking orders that a number of the paragraphs in the schedule be set aside as an abuse of process.

2 The Commissioners' motion came on for hearing before Grove J on 6 August 2003. A number of the paragraphs of the schedule were not pressed. His Honour made rulings as to the remaining paragraphs in contention, save for one issue that related to paragraph 1.4. This paragraph sought production of the NSW Police Service' "psychology file" relating to former Detective Michael O'Donnell (the psychology file). Grove J held that the plaintiffs had a legitimate forensic purpose for seeking the production of the psychology file and he declined to set aside paragraph 1.4. A further objection pursuant to Part 36 Rule 13 of the Supreme Court Rules 1970 (the SCR) was taken by the Commissioner to production of the psychology file. His Honour stood over the balance of the motion that concerned this issue for determination by the trial judge. 3 On 18 August 2003, when the proceedings came on for hearing, Mr McIlwaine appeared on behalf of the Commissioner. He read the affidavits of Jennifer Margaret Lette, sworn on 5 August 2003, and Carmela Tassone, sworn on 15 August 2003. Annexed to the latter affidavit were copies of medical reports relating to Mr O'Donnell prepared by Dr Cassimatis, and Dr Duke, both of whom are psychiatrists. 4 Mr McIlwaine submitted that the psychology file contained documents recording protected confidences within the meaning of s 126A of the Evidence Act 1995 (the Act) and that I should decline to make an order compelling production of them pursuant to Pt 36 r 13(2)(b) of the SCR.

5 Inspector Lette is the Chief Psychologist of the NSW Police, Psychology Section (the Psychology Section). She is responsible for the day-to-day management of the Psychology section including the management and retention of its records. The Psychology Section provides professional and confidential psychological services to NSW police, including support, debriefing, counselling and assessment. Personal and work-related issues arise during the provision of the psychological services. 6 Inspector Lette said that all of the entries in the psychology file had been made by psychologists employed in the Psychology Section. These psychologists are required to comply with obligations of confidentiality imposed under the Code of Conduct issued by the Psychologists' Registration Board. 7 In her affidavit Inspector Lette stated that, "Historically, NSW Police employees have been suspicious about the level of confidentiality that an in-house psychology service could provide and the reputation of the NSW Police Psychology Section has been built by closely guarding our records". Counselling notes maintained by the Psychology Section are not released for purposes such as the assessment of claims by the Workers' Compensation Section of the Police Service.

8 By consent the balance of the motion and the subpoena were stood over for further argument to a convenient time following the opening of the plaintiffs' case.

9 I heard further submissions on Friday 29 August 2003. The psychology file was produced to the Court for inspection during the course of the proceedings on that day. At the conclusion of the argument I ruled that I would permit the plaintiffs' legal representatives to inspect copies of the notes dated 19 April 1994 together with the remaining attendance notes up to and including those dated 20 August 1996. Inspection was conditioned upon the plaintiffs' legal representatives undertaking not to copy the notes nor disclose the contents of them to any person. I reserved the question of whether I would permit inspection of the balance of the psychology file. I have determined to permit inspection of the whole of the psychology file upon the same conditions. These are my reasons for making that determination.

10 Part 3.10 Division 1A of the Evidence Act 1995 (the Act) is headed "Professional confidential relationship privilege". Section 126A defines a number of terms for the purposes of Pt 3.10 Div 1A. Relevantly it provides: " harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear). protected confidence means a communication made by a person in confidence to another person (in this Division called the confidant ): (a) in the course of a relationship in which the confidant was acting in a professional capacity, and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant. protected confider means a person who made a protected confidence. "

Section 126B of the Act is in these terms: "(1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose: (a) a protected confidence, or (b) the contents of a document recording a protected confidence, or (c) protected identity information. (2) The court may give such a direction: (a) on its own initiative, or (b) on the application of the protected confider or confidant concerned (whether or not either is a party). (3) The court must give such a direction if it is satisfied that: (a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and (b) the nature and extent of the harm outweighs the desirability of the evidence being given. (4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters: (a) the probative value of the evidence in the proceeding, (b) the importance of the evidence in the proceeding, (c) the nature and gravity of the relevant offence, cause of action or defence and nature of the subject matter of the proceeding, (d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates, (e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider, (f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed, (g) if the proceeding is a criminal proceeding – whether the parties seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor, (h) whether the substance of the protected confidence or the protected identify information has already been disclosed by the protected confider or any other person. (5) The court must state its reasons for giving or refusing to give a direction under this section." 11 The Act applies to the adducing of evidence in a proceeding, it does not apply to the production of documents on subpoena or to a request to inspect the same; Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; 201 CLR 49 per Gleeson CJ, Gaudron and Gummow JJ at [16] and [17]. 12 Part 36 r 13 of the SCR provides, relevantly, as follows: "13(1) This rule applies where: (a) the Court by subpoena or otherwise, orders any person to produce any document to; (b) a party is required by a notice served under rule 16(1) to produce any document to; or (c) a question is put to a person in the course of examination before, the Court or a Judge or any officer of the Court, or any examiner, referee, arbitrator or other person authorised to receive evidence and neither Part 3.10 of the Evidence Act nor Part 3.10 of the Evidence Act 1995 of the Commonwealth is applicable. (2) The Court shall not compel, and rule 16 shall not require, production of a document or an answer to a question, unless and until the Court directs that the production or answer shall not be prevented by this subrule: (a) over the objection of a person if evidence of the document, or of an answer to the question, could not be adduced in the proceedings over the objection of the person, by virtue of the operation of Part 3.10 Division 1 of the Evidence Act ; (b) if the contents or production of the document, or an answer to the question, would disclose: (i) a protected confidence or the contents of a document recording a protected confidence or protected identity information, within the meaning of section 126B of the Evidence Act , where: (A) consent by the protected confider within the meaning of section 126C of the Evidence Act has not been given to disclosure of the confidence, contents or information; and (B) section 126D of the Evidence Act would not operate to stop Part 3.10 Division 1A of the Evidence Act from preventing the adducing of evidence in respect of the confidence, contents or information; … (3) Where a party to any proceedings claims privilege from production of any document, the Court may, if it thinks fit: (a) permit evidence in relation to the claim to be given by any other party by affidavit or otherwise; and (b) permit cross-examination on any affidavit used in support of the claim."

13 I am satisfied that the entries contained in the psychology file record protected confidences within the meaning of s 126A of the Act.

14 Part 36 r 13 came into operation on 1 October 1999. In written submissions the plaintiffs' noted that no document in the psychology file was said to have been created later than 1997. They contended that r 13 has no application to disclosures made prior to the date when the rule commenced. I was not persuaded by this submission. The rule is concerned with the production of documents under subpoena or notice to produce (and with answers to questions put to a person in proceedings to which the Act does not apply). Subrule (2) provides that the court shall not compel production of a document unless and until it directs that the production shall not be prevented by the subrule. I see no warrant for reading into the rule a requirement that the document the subject of the subpoena or notice to produce be one created after the date the rule came into operation. 15 It was the plaintiffs' submission that the common law governs the production and inspection of documents on subpoena. Confidentiality, of itself, is not a recognised ground of privilege from disclosure; Wran v Australian Broadcasting Commission [1984] 3 NSWLR 241 per Hunt J at 255. The plaintiffs' contended that the finding that they were possessed of a legitimate forensic purpose for seeking the production of the psychology file was determinative in that no privilege was identified to defeat production and the right of inspection. In their written submissions they contended: "Part 35 rule 13 cannot be utilised, it is submitted, in a way which intrudes upon privilege (s) as evolved by the common law. To the extent that the rule says this can be done it is ultra vires. To put the matter another way – the rule ought to be read down such that it does not purport to override the parameters of privilege as evolved over time, since it is only for Parliament to make such inroads, and then only by expressing itself in the clearest terms." 16 In the plaintiffs' submission, read according to its terms, r 13(2)(b) purports to prevent production in any case in which a document, the subject of a subpoena or notice to produce, records a protected confidence. Production of medical records (and other records of protected confidences) would be denied without consideration of the range of matters that the Court is to take into account pursuant to s 126B of the Act in deciding to direct that evidence of a protected confidence not be adduced.

17 In Mok v NSW Crime Commission [2002] NSWCA 53 the primary judge refused access to medical records on the ground of public interest immunity. The matter was argued before him without reference to the operation of Pt 36 r 13. In the Court of Appeal Mason P (with whom the other members of the Court agreed) said: "[21] Young ([1999] NSWCCA 166; 46 NSWLR 681) concerned the common law of public interest immunity, because the substantive proceedings before the court were criminal, and because Division 1B of the Evidence Act 1995 (which had been invoked in support of the claim for public interest immunity) did not apply directly or derivatively to the production of documents on subpoena. By contrast, the substantive proceedings in the present case are civil (see Criminal Assets Recovery Act 1990, s 5) and Pt 36 r 13 of the Supreme Court Rules incorporates by reference those parts of the Evidence Act which address issues of public interest immunity. … [23] Pt 3.10, Division 1A of the Evidence Act (s126A-s126F) is particularly relevant. It deals with professional confidential relationship privilege. S126B empowers a court to direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose a "protected confidence". The term is defined in s126A in language broad enough to include a communication made during the provision of medical treatment. …

[25] It is unnecessary to explore the detailed scope of Division 1A which commenced operation on 1 January 1998. Nor, in light of the way this appeal was argued, is this appeal a suitable vehicle for exploring the relationship between the statutory privilege enacted therein, and the common law of public interest immunity." 18 The suggested tension between the r 13(2)(b) and the Act to which the plaintiffs directed attention arises because Div 1A of the Act does not create a privilege. Rather it confers a discretion on the court to direct that evidence not be adduced if it would involve the disclosure of a protected confidence (or a document recording a protected confidence or protected identity information) and if having regard to the matters set out in subsection (4) and any other relevant matter the court considers it appropriate to so direct. Whereas rule 13(2)(b) provides, inter alia, that the court shall not compel production of a document, unless and until the court directs that the production shall not be prevented by the subrule, if the production would disclose a protected confidence. The rule is silent on the discretionary considerations set out in s 126B(4) of the Act. 19 In the way the matter was developed, the Commissioner's objection was not to production of the psychology file but to inspection of it by the plaintiffs' legal representatives. I was invited to inspect the file to determine this question.

20 I was not persuaded that in deciding whether to allow inspection I should apply the common law and regard the question as determined by the finding of a legitimate forensic purpose. It seemed to me that in determining that the production of documents containing protected disclosures is not prevented by the subrule for the purposes of r 13(2)(b) the Court may take into account matters including those to which s 126B(4) of the Act directs attention.

21 This approach seemed to me to be conformable with the observations of the Court in Mok and with the approach adopted by Campbell J in Urquhart v Lanham [2003] NSWSC 109 at [15]. I note that the relationship of Pt 36 r 13 to the Act was not agitated in that case.

22 There was no evidence before me as to the nature or extent of any harm that would or might be caused to the protected confider were the psychology file to be inspected by the plaintiffs' legal representatives. Mr McIlwaine acknowledged that the content of certain entries was of potential relevance to the issues in the proceedings and that this material was not to be found in the reports of Dr Cassimatis or Dr Duke.

23 After I inspected the documents Mr Campbell informed me of a matter that had just come to his attention. A copy of the psychology file formed part of the defendant's brief. Mr O'Donnell is not a party to the proceedings. In Mr Campbell's submission any suggested "confidential relationship privilege" had been waived by the disclosure of the psychology file to the defendant.

24 Mr McIlwaine submitted that important to the considerations that bear on the exclusion of evidence of protected confidences (and of the right to inspect documents recording protected confidences) was consideration of the wishes of the protected confider. In his submission the circumstance that Mr O'Donnell had consented to the disclosure of his psychology file to the defendant did not constitute any form of waiver of his interest in the maintenance of the confidentiality of his communications with psychologists vis a vis the plaintiffs and their legal representatives.

25 Section 126B(4)(h) of the Act invites consideration of whether the substance of the protected confidence has already been disclosed either by the protected confider or by any other person. It does not address the wishes of the protected confider. Disclosure to another is only one of the matters that the court is to take into account in determining whether to direct that evidence is not to be adduced under s 126B. There was no evidence to support Mr McIlwaine's submission as to the risk of some unidentified harm of a psychological nature being occasioned to Mr O'Donnell by reason of the disclosure of the contents of the psychology file to those representing the plaintiffs. The broader policy concerns raised by Inspector Lette's evidence (summarised at [7] above) seemed to me to be of somewhat less force in circumstances in which the file had been made available to the defendant. 26 Taking into account the matters in s 126B(4) of the Act to the extent that I am able (given that I am not dealing with the admissibility of evidence but with the inspection of documents produced on subpoena) I have decided that production and inspection of the entire file is not prevented by Pt 36 r 13(2)(b). I propose to permit inspection of the entire file upon the same terms as that granted with respect to the copies of the entries the subject of my order made on Friday 29 August 2003. ORDER

1. The plaintiffs' legal representatives may inspect the psychology file of former Detective Michael O'Donnnell produced by the Commissioner of Police upon undertaking not to copy any part of it and not to disclose its contents to any person, including the plaintiffs, unless by further order of the Court.

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