FEDERAL COURT OF AUSTRALIA

Hazledine v Arthur J. Gallagher & Co (Aus) Limited (No 2) [2017] FCA 1153

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s interlocutory application filed 19 September 2017 is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KERR J:

1    On 19 September 2017 the respondent filed and served an interlocutory application for orders pursuant to rule 20.35 of the Federal Court Rules 2011 (Cth) that the applicant produce to the Court unredacted copies of two reports of Dr Jonathan Phillips dated 18 July 2017 and 22 August 2017 together with copies of all letters of instruction from the applicant’s lawyers to Dr Phillips in relation to those reports.

2    On 21 September 2017 after hearing from the parties I declined to make the orders the respondent sought. I undertook to provide reasons for refusing the respondent’s interlocutory application. I then gave leave for the applicant to file and serve an amended statement of claim and determined a timetable to prepare the matter for hearing on the dates earlier established by White J. The orders I made for that timetable were consistent with those proposed by the respondent save that they did not contain a provision that would make the obligations of the parties to comply subject to any application that the respondent might bring after having had the opportunity to inspect in unredacted form the two reports of Dr Phillips and his letters of instruction.

3    These are my reasons.

Background

4    The applicant commenced proceedings in the Federal Court on 16 December 2016. Her originating application advanced claims under the Australian Human Rights Commission Act 1986 (Cth) for unlawful discrimination in employment in contravention of s 3. The applicant also claims direct and indirect discrimination in contravention of s 15 of the Disability Discrimination Act 1992 (Cth) and unlawful discrimination in employment in contravention of s 14 of the Sex Discrimination Act 1984 (Cth).

5    For the purposes of these reasons I proceed on the basis that it is uncontentious that the applicant was employed by the respondent from October 2012 until January 2016 as, inter-alia, an insurance broker. It is similarly uncontentious that an aspect of the applicant’s claim is that she suffered mental injury in consequence of the alleged contraventions.

6    The proceedings were originally on the docket of White J. On 9 February 2017 His Honour made timetabling orders. He listed the matter for trial at 10 am Monday 4 December 2017 with an estimated hearing length of 10 days.

7    The applicant filed her statement of claim in compliance with that timetable on 16 March 2017.

8    The respondent took issue with aspects of that statement of claim. On 19 April 2017 orders were made by consent that the respondent’s interlocutory application to strike out particular paragraphs be heard on Wednesday 17 May 2017. In the lead up to the strike out application hearing before White J, the applicant’s solicitors filed an affidavit of James Ly Banh, a solicitor in their employment. That affidavit deposed that the applicant was suffering from a psychological injury. She had conveyed to her solicitors that she was experiencing paranoia.

9    Paragraph 14 of that affidavit revealed that her solicitors had requested that the applicant attend an appointment with a psychiatrist for the purpose of assessing her capacity and her ability to provide instructions. Notwithstanding those concerns her solicitors indicated that they were prepared to appear on her behalf in respect of the strike out application.

10    On 17 May 2017, proceeding on that basis without resolving any issue regarding the applicant’s capacity, White J made orders striking out paragraphs 101 to 117 inclusive and 118 to 138 inclusive of the applicant’s statement of claim. His Honour ordered that any application for leave to amend the statement of claim was to be filed and served by 28 June 2017, returnable on Tuesday 18 July 2017. His Honour vacated orders 3 to 8 of the timetabling orders he had earlier made, noting that the court would revisit those orders at the next directions hearing. The trial dates were not vacated.

11    Leave to amend the statement of claim was not sought by 28 June 2017. The applicant’s delay in that respect was the subject of correspondence between the parties in which the applicant’s solicitors advised that the applicant had been hospitalised at Glenside Hospital in Adelaide between 16 May and 8 June 2017.

12    Before further steps were taken in the proceedings the matter was transferred to my docket.

13    The applicant’s solicitors filed a further affidavit of Mr Banh dated 28 July 2017 explaining the position as they understood it at that time (explicitly reserving any waiver of legal professional privilege at paragraph 4). The affidavit revealed that the applicant’s lawyers had sought a psychiatrist’s advice regarding their client’s capacity to instruct them and had sought, and were continuing to seek, access to the applicant’s medical records from the Glenside Hospital to assist that psychiatrist, but had been advised that there was a huge backlog of requests for access to medical records. Mr Banh deposed (in paragraphs 17-18) that those medical records had not yet been provided to the psychiatrist, that the psychiatrist had advised that he would benefit from a second consultation with the applicant prior to finalising his opinion regarding her capacity to instruct, and that she was scheduled for a second consultation with him on 18 August 2017.

14    On 1 August 2017 I made orders by consent that the proceedings be relisted for further directions on a date after 18 August 2017. That directions hearing was then scheduled for 30 August 2017.

15    When the matter came before me on that date I commenced by making certain preliminary observations regarding the position as I understood it. I noted that the respondent was pressing for the matter to proceed to mediation and the applicant was seeking leave to file an amended statement of claim which was opposed by the respondent. I observed that there was material before the Court to suggest that the applicant’s solicitors had expressed significant concern regarding her capacity to provide instructions. I drew attention to there being nothing on the court file to indicate that those doubts had been removed.

16    Mr Harmer for the applicant however advised the Court from the bar table that they had received written confirmation of the applicant’s capacity to instruct, to understand legal issues, to participate in the settlement process, and to participate in the litigation process. The relevant report from Dr Phillips had been received the previous day. Having been satisfied of her competence by reason of that report her solicitors had instructions (transcript P-4 lines 12-23) that the applicant was willing to participate in a mediation process but also wanted to press on with the litigation process, ‘noting that delay itself can be quite damaging to the applicant’s health.’

17    For the respondent Mr Moore submitted that mediation be ordered but that other steps in the proceedings be adjourned.

18    However, I expressed concern that, whatever course was to be adopted, I wanted to be satisfied that any orders I made would be capable of implementation. I indicated I was minded to adjourn the respective applications until 22 September. The following exchange took place (transcript P-7 lines 19-34).

His Honour:    Mr Harmer, if I might ask, is there any reason why the medical report could not be made available to the court? Does it contain any matters that you would not wish to disclose?

Mr Harmer:    Your Honour, the report, because it does go to the issue of capacity to give instructions and is set against the background of some difficulties in that regard, does contain considerable privileged material. We would not object to the court viewing the report, your Honour. We may have to consider some minor issues of redaction.

His Honour:    Yes.

Mr Harmer:    There would, however, be a difficulty of – if the respondent sees it in its current format. Again, I would have thought with redaction we could certainly reveal the current diagnosis and the confirmation of capacity to the respondents.

19    There were then submissions from counsel regarding the desirability of the applicant having proper capacity to participate in mediation or other processes.

20    The court observed (transcript P 10 lines 22-35):

His Honour:     Well, look, it seems to me that … Mr Harmer is prepared to make the report available in an unredacted form to the court and in a redacted form to your instructors, and that seems to be a reasonable premise if it addresses any matters which might be the subject of legal professional privilege. They obviously should not be required to be disclosed, and it may be that it canvasses certain matters that touch on the merits or otherwise of the litigation. And I do not imagine you would press for those matters to be made available to your instructors.

Mr Moore:     Well, your Honour, we would reserve our position in that regard. Certainly we – it needs not to be overlooked that we’re in a situation where the applicant is in breach of an order of the court that this application for leave to amend be filed by 28 June.

21    There was then discussion regarding matters that would be required to be attended to prior to the further directions hearing. Those matters having been addressed, the following exchange took place (transcript P-20 line 45 – P-21 line 11):

Mr Moore:    And I take it your Honour isn’t proposing to make an order for the provision of the medical report by Dr Phillips, I think it’s said to be – that that’s left with Mr Harmer to provide to the court and…

His Honour:    Well, the court will note that Mr Harmer has undertaken to provide a copy of that report on a redacted basis to exclude matters that would relate to any matters of legal professional privilege. That will be done both to the court and to yourselves.

Mr Moore:    Yes, your Honour.

His Honour:     And that leaves it open for you to say, “Well, look that didn’t do the trick. We’re still not satisfied,” and to make submissions in that regard, and it would be open to Mr Harmer to put on additional evidence, should he wish, in relation to explanations for the prior delay.

22    I interpose that as at 30 August 2017 it had remained in dispute as to whether the applicant had reasonable grounds for her delay in re-pleading (P-11 lines 29-48). The applicant subsequently provided the respondent with evidence of the applicant’s admission as an involuntary patient to the Glenside Hospital. That is referred to and the relevant documentation exhibited in the affidavit of Brendan James Charles sworn on 19 September 2017 (Annexure BJC 32). The respondent accordingly had advised the applicant on 11 September 2017 that it was satisfied with the explanation of why the applicant’s solicitors had not been able to obtain instructions from the applicant herself between 16 May and 18 August (Annexure BJC 33).

23    I did not accede to the respondent’s submission that the trial dates be vacated – that could be considered when the matter was relisted. At the conclusion of the directions hearing I made orders adjourning the applicant’s interlocutory application to amend her statement of claim to 22 September 2017. I formally noted that the applicant had undertaken to file and serve a copy of Dr Phillips’ medical report redacted as necessary to exclude any matters of legal professional privilege.

24    Prior to 22 September 2017, in compliance with the undertaking, the applicant filed two reports of Dr Phillips so redacted.

25    The first of those reports (titled ‘Work in Progress’) is dated 18 July 2017. At paragraph 58 of his first report Dr Phillips reported that the applicant ‘undoubtedly suffers from an unstable mood disorder.’ In that regard he drew attention to the period before her most recent admission to Glenside Hospital, ‘when the claimant’s thinking and behaviour had become bizarre.’

26    At paragraph 69 Dr Phillips turned to the question of whether the applicant was capable of giving instructions to her solicitors. He set out his reasoning at paragraph 70. At paragraph 71 Dr Phillips expressed a conclusion that as at the date of his consultation the applicant had capacity to instruct her solicitors.

27    It is true that at paragraphs 75-76, Dr Phillips also addressed additional matters (redacted) that had been raised by the applicant’s solicitors. Having regard to those matters, balancing them against her presentation at the time of consultation, he expressed growing concerns. At paragraph 79 Dr Phillips stated he would become more certain about the situation if he had a second opportunity to interview the applicant and an opportunity to review her hospital records.

28    Dr Phillips’ second report, provided after having had those opportunities, is dated 22 August 2017. In his report he advises that he had reassessed the applicant with a view to providing advice as to her capacity. At paragraph 11 Dr Phillips states that the applicant had been considerably more relaxed than she had been on the first occasion. She had understood the purpose of the consultation and was entirely cooperative. He then detailed what he had assessed of her symptoms and described her affect.

29    At paragraph 12 he reports that the applicant had shown a considerable initiative at her interview and had asked sensible and balance questions in relation to mental health issues and the legal process. He states that he had noted a positive change in the applicant’s thinking and attitude since the time of his first consultation. His current diagnosis is ‘more probably an adjustment disorder with depressed mood DSM – 5 309.0’ (paragraph 16). He notes that the applicant had had a normal mental state examination apart from the relatively minor variation in her mood state (paragraph 17).

30    Those observations were followed by Dr Phillips’ detailed conclusions concerning the applicant’s capacity to instruct her solicitors and engage in settlement negotiations. Those are set out below:

18.    This brings me to the general matter of capacity. I addressed the issue in the earlier draft document. I believe that there are several documents to be considered in making any decision regarding capacity.

19.    First, has Ms Hazledine adequate intelligence (cognitive skills) required for the task? The answer is yes.

20.    Second, has the claimant a basic understanding of the legal system and the processes of the law (as they apply to her)? The answer is yes.

21.    Third, has Ms Hazledine a current understanding of how she wishes to proceed (by way of instructing yourselves)? The answer is yes.

22.    Fourth, has the claimant a reasonably controlled mental state? In response, the claimant suffers currently from an adjustment disorder with depressed mood, due to the actions of the particular stressors in her life. This is not a severe or high-intensity psychiatric disorder. The disorder is not interfering with her thoughts/feelings in any meaningful manner. The answer is yes, she is not affected by a significant mental disorder currently.

23.    Fifth, is Ms Hazledine free of undue influence by other parties? The answer is yes.

24.    It can be said, therefore, with a high degree of certainty that Ms Hazledine has current mental capacity. She is in a position where she can make rational decisions and properly instruct yourselves.

31    Both of Dr Phillips’ reports, redacted to exclude matters of legal professional privilege, were provided to the respondent on 8 September 2017 in accordance with the undertaking given to the Court (Affidavit of Brendan James Charles annexure BJC-34 at the foot of page 1).

32    Notwithstanding (a) the apparent pellucid clarity of Dr Phillips’ conclusions regarding the applicant’s capacity as recounted in his second report in the passages cited above and (b) the context in which those reports were provided at the request of the court subject to an express reservation regarding legal professional privilege, some 11 days later (the delay being unexplained) the respondent’s solicitors sent a letter by email to the applicant’s legal representatives on 19 September 2017, requiring them to provide unredacted copies of Dr Phillips’ reports and the letters of instruction that had been sent to him by the applicant’s solicitors (Affidavit of Brendan James Charles annexure BJC-34). It was asserted in that letter that:

There is no basis on which parts of the Redacted Reports can be relied upon, and parts can be said to be protected by privilege. It is no answer that you undertook to provide the reports subject to redaction of legally privileged material, because it is clear that you have selectively and deliberately decided to waive privilege over parts of the letters of instructions and part of what your client told Dr Phillips.

The Redacted Reports have not been provided on a confidential basis, but rather in the context of a dispute about the Applicant’s capacity and where her alleged psychiatric condition and the causes of it are a central aspect of the litigation (see Weston v Publishing & Broadcasting Ltd [2010] NSWSC 1288). Any privilege has been waived.

33    The respondent maintained in that correspondence, inter-alia, that it was concerned that the applicant’s capacity might continue to wax and wane. If the unredacted reports did not resolve those concerns the respondent would make an application for the appointment of the Public Trustee South Australia as the applicant’s litigation representative. The applicant was given until 5 pm to reply.

34    Unsurprisingly, having been given only a few hours’ notice, the applicant’s legal representatives appear not to have had time to obtain instructions to respond by 5 pm. In any event the respondent’s counsel did not dispute the applicant’s contention that the respondent then filed its application for interlocutory orders before 5 pm the same day – supported by a 65 page affidavit (transcript P-15 lines 1-4).

the interlocutory application

35    The orders sought by the respondent were:

1.    Pursuant to rule 20.35 of the Federal Court Rules 2011 (cth), an order that the Applicant produce to the Court the following documents:

a.    an unredacted copy of the Work in Progress Report of Dr Jonathan Phillips dated 18 July 2017 (the Work in Progress Report);

b.    an unredacted copy of the report of Dr Jonathan Phillips dated 22 August 2017 (the Phillips Report);

c.    copies of all letters of instruction from Harmers Workplace lawyers to Dr Jonathan Phillips in relation to the Work in Progress Report and the Phillips Report, including but not limited to, the “multiple letters of instruction” and the letter of instruction dated 24 March 2017 referred to in the Work in Progress Report.

2.    The Applicant pay the Respondent’s costs of an [sic] incidental to the application.

3.    Such further or other orders that the Court considers appropriate.

36    Only in the teeth of the directions hearing scheduled for 3.15 pm on 21 September, were the respondent’s written submissions provided ‘probably only in the last hour and a half’ (P-3 line 8). Those submissions summarised the respondent’s case as follows:

1.    In further revised terms, the respondent seeks in paragraph 2 of its proposed minute of orders that the Court make the following order:

The applicant produce to the respondent the following documents not later than 4:00 pm on Friday 22 September 2017:

(a)    An unredacted copy of the Work in Progress Report of Dr Jonathan Phillips dated 18 July 2017 (the Work in Progress Report);

(b)    An unredated copy of the report of Dr Jonathan Phillips dated 22 August 2017 (the Phillips Report);

(c)    Copies of all letters of instruction from Harmers Workplace Lawyers to Dr Jonathan Phillips in relation to the Work in Progress Report and the Phillips Report, including but not limited to, the “multiple letters of instruction” and the letter of instruction dated 24 March 2017 referred to in the Work in Progress Report.

2.    The Court has power to make an order in these terms under rule 1.32 of the Federal Court Rules 2011 which provides that the Court “may make any order that the Court considers appropriate in the interests of justice.”

3.    There are two central reasons why it is in the interests of justice for the Court to make an order in the above terms:

(a)    The applicant has by her conduct waived legal professional privilege in relation to the totality of the Work in Progress Report and the Phillips Report (collectively the “Redacted Reports”) – to reveal only limited parts of those reports risks substantial injustice that the weight and meaning of those reports will be misunderstood.

(b)    The Redacted Reports do not allow the respondent to be satisfied as to the applicant’s legal capacity and to determine whether it ought make an application for appointment of a legal representative which it is entitled to do under rule 9.63.

37    When the respondent’s interlocutory application came on for hearing the Court drew attention to the fact that the orders originally sought had been sought pursuant to rule 20.35 but that no longer appeared to be the basis upon which the application was being pressed.

38    The Court was then advised by Mr Moore that the respondent no longer relied on rule 20.35 – submitting on the respondent’s behalf that that was because rule 20.35 provided for the making of orders for production of documents to the Court whereas the respondent’s ‘preferred course’ (transcript P-3 lines 24-47) was for the production of the redacted documents and any letters of instruction given by the applicant’s lawyers to Dr Phillips to the respondent.

39    The respondent therefore relied upon the terms of rule 1.32 for the power of the Court to make the orders the respondent sought.

40    Rule 1.32 provides that the Court ‘may make any order that the Court considers appropriate in the interests of justice’.

41    I drew Mr Moore’s attention to the circumstance that rule 20.35 was limited by another factor. The power it conferred was engaged only if production of documents ‘relat[ed] to an issue in the proceeding’. Having regard to that rule I indicated I would be troubled, irrespective of the source of power, unless there was an issue in the proceeding to which either the general power under rule 1.32 or rule 20.35 might attach (transcript P-4 lines 1-5).

42    The respondent submitted that not only was the applicant’s capacity an issue but also, separate to that, the reports of Dr Phillips went to the applicant’s mental health condition which was plainly an issue in the proceedings (transcript P-5 lines 1-4).

43    I then asked counsel why it would be appropriate in the interests of justice to require disclosure of material that I had requested the applicant to file on the basis that to do so would not require disclosure of matters to which legal professional privilege attended. Mr Moore submitted that (a) there had been plain waiver of that privilege by the applicant by reason of partial disclosure and (b) the respondent was not in a position to properly form a view about the applicant’s capacity to run this matter to trial in circumstances when her capacity had been doubted by her own psychiatrist in the middle of July – and for those reasons it was in the interests of justice to make the orders sought (transcript P-9 lines 7-14).

Consideration

44    In my opinion, when the production of a document is sought under the generic power conferred by rule 1.32 its production generally ought not to be ordered unless it can be shown to be relevant to an issue in the proceeding. While the power is not to be circumscribed, unless special circumstances exist, there seems to me to be no reason why the operative principle should depart from that which would apply when an order is sought pursuant to rule 20.35.

45    On the assumption that that analysis is correct, I discern no issue (properly understood) in these proceedings to which the production of the requested documents are relevant.

46    First, the legal capacity or otherwise of the applicant to give instructions and to participate in mediation is not an issue in the principal proceedings.

47    It may be accepted that the applicant’s proposed Amended Statement of Claim asserts that she suffered mental injury by reason of the respondent’s prohibited conduct. However, mental illness is not to be equated with incapacity. On that basis I reject the respondent’s submission that the reports of Dr Phillips go to the applicant’s mental health condition ‘which was plainly an issue in the proceedings’.

48    The relevant reports of Dr Phillips were created for the narrow and specific purpose of satisfying the applicant’s solicitors that the applicant had legal capacity to instruct them in respect of the trial and any mediation. I am satisfied that those reports were expressly for that purpose and no other. They were therefore not relevant to the matters pleaded in the applicant’s proposed Amended Statement of Claim. Moreover I am satisfied that the steps her lawyers took to seek Dr Phillips’ opinion in that regard were entirely consistent with their professional and ethical obligations as set out in the Law Society of South Australia’s ‘Statement of Principles with Guidelines 2012’ (the applicant having been employed in Adelaide and having filed her application in the South Australian Registry of the Court) regarding the duty of a lawyer who may have unproven doubts about a client’s capacity to give instructions. I am also satisfied that upon receipt of Dr Phillips’ clear and unqualified report of 22 August her lawyers were, subject to any new circumstance arising, entitled to act on the basis of their client’s instructions.

49    The common law presumes capacity. All adults are presumed to have capacity and those who assert the contrary bear the onus of proof (Dalle-Molle (by his next friend Public Trustee) v Manos and Another [2004] SASC 102; (2004) 88 SASR 193 at [17]). For that reason capacity is not a matter required to be pleaded. Moreover a person may have capacity at a particular time and not at another. Whilst a person has legal capacity he or she is not precluded by reason of the fact that they previously may have lacked capacity or might in the future no longer have capacity from pursuing their legal rights – moreover they will be bound by their conduct whilst possessed of legal capacity (Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 3 All ER 162).

50    Second, there is no application before the Court for the appointment of a litigation representative pursuant to rule 9.63. The disclosure sought is thus not relevant to such an application. Nor, on the materials currently before the Court, would there appear to be any plausible basis for such an application to be made by either party or initiated by the Court on its own motion.

51    That is not to dismiss the import of the respondent’s very practical concern that the applicant’s capacity may ‘wax and wane’. That such a practical concern may not be unwarranted appears to accord with the facts known to the Court. Indeed the Court itself has made observations in the course of discussions regarding pre-trial preparations that, because it appeared not to be in dispute that the applicant is a vulnerable litigant whose mental capacity had earlier been doubtful, that would be a factor relevant to whether these proceedings should be brought on without delay.

52    However, in my opinion, there can be no basis to appoint a litigation representative for a person not presently subject to a legal incapacity. The Court does not make prophylactic orders. To the extent the interlocutory application is differently premised I reject that as a relevant issue. The materials before the Court are such as to satisfy the Court as to the applicant’s present legal capacity. Should there be materials to show that the applicant’s capacity subsequently has been lost it will be open to either party to bring an application.

53    Third, the disclosures sought have no relevance to any live issue in respect of the respondent’s application to re-plead her Statement of Claim. As noted above at [22], after the applicant’s solicitors provided the respondent with evidence of the applicant’s admission as an involuntary patient to the Glenside Hospital the respondent advised that it was satisfied with the explanation for the delay in obtaining instructions.

54    Thus, I apprehend there is no issue, properly understood, in these proceedings to which the production of the requested documents is relevant.

55    The respondent disclaims that the application is ‘fishing’ but in advancing submissions (which I have rejected) that the information sought is relevant to the applicant’s mental health which is in issue in the substantive proceedings, it is clear that it seeks information which it might use in the trial. It does not appear to me to be proper use of rule 1.32 or in the interests of justice that that course be facilitated if there is no issue before the Court to which that production is directed. For that reason I would distinguish cases such as Weston v Publishing & Broadcasting Ltd [2010] NSWSC 1288 relied upon by the respondent.

56    However there is an even more fundamental reason why the respondent’s application is to be rejected. Rule 1.32 permits the Court to make any order it ‘considers appropriate in the interests of justice’.

57    The respondent’s case is that the applicant, because of her partial disclosure of otherwise legally privileged materials, should be ordered to disclose the balance. In many instances that submission would be sound but in the specific context of this proceeding it is entirely implausible. What the applicant’s solicitors did in this case was not of their election – the filing of the Dr Phillips’ redacted reports was done in accord with what the Court had requested them to do. The Court asked the applicant’s solicitors whether Dr Phillips’ reports contained any matters they would not wish to disclose. In response, the applicant’s counsel explicitly advanced a claim of legal professional privilege and the Court formally noted that that production would be subject to that claim.

58    Nothing in the unredacted parts of either report has induced me to find that it would be unfair to the respondents if the redacted parts were not to be ordered to be disclosed. To the extent it may not be addressed by that observation, I specifically reject the respondent’s submission that to leave the position as it stands would be unfair because Dr Phillips did not disclose any reasons for his having had concerns regarding the applicant’s capacity in July but was satisfied that she had capacity by 22 August, the date of his final report (see paragraphs 11-13 inclusive of Dr Phillips’ second report).

59    The respondent makes no case that the applicant’s claims for legal professional privilege are otherwise unsound – it submits only that there has been waiver. Having regard to the context in which the redacted reports were produced to the Court, I do not accept that submission. I therefore do not consider an order requiring production of the redacted parts of Dr Phillips’ reports and the documents going to his instructions as sought by the respondent’s interlocutory application to be appropriate in the interests of justice.

60    Indeed in the very specific circumstances of this case I consider the making of such an order would be directly inconsistent with the interests of justice. The course followed by the applicant was at the request of the Court and in accordance with an undertaking given by her legal representative which had been shaped after discussion with the Court so as to specify that those documents could be filed in a redacted form without disclosing matters over which legal professional privilege was open to be claimed. In the absence of compelling reasons, none of which appear to me to exist, it would be grossly unfair for the Court to have asked the applicant to proceed on that basis yet later accede to an application which would require the otherwise privileged material to be disclosed.

61    Finally, had I not reached a concluded view on the merits of the respondent’s interlocutory application I would have been inclined to have dismissed it on procedural grounds.

62    The respondent was provided by the applicant with the redacted reports of Dr Phillips on 8 September 2017. It raised no concern with the applicant until its letter of 19 September giving the applicant only hours to respond. Mr Moore proffered no reason for that delay or for the respondent’s short service of the interlocutory application also on 19 September.

63    Moreover the respondent’s short-served interlocutory application was then facially misleading. It was expressed to rely upon rule 20.35. That rule applies to the production of documents to the Court.

64    Both the applicant and the Court were given to understand that the application would be pressed on an entirely different basis only in the course of the scheduled directions hearing. No reason was proffered for leaving that until then.

65    Such forensic choices were not only unnecessary (given the respondent had had the redacted reports since 8 September) but also inappropriate having regard to the duty of parties to act consistently with the overarching obligations expressed in s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth). It is true that the Court has power to waive compliance with any of the rules contained in the Federal Court Rules 2011 including the normal time limits for the service of an interlocutory application but the basis for doing so must be made good.

66    It is hardly surprising that counsel representing the applicant objected to having to respond to the interlocutory application on those premises. The applicant had been, for reasons never explained, placed in a position of considerable disadvantage in having to respond to an application served on short notice and in circumstances in which the underlying basis of the application was not made clear until hearing.

67    Had I not dismissed the respondent’s interlocutory application on substantive grounds the applicant’s procedural objections would have been compelling.

Associate:

Dated:    27 September 2017