Procedure - Discovery and interrogation - Production and inspection - Grounds for resisting production - Legal professional privilege - Waiver of privilege.

Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 and Attorney-General for the Northern Territory v Maurice [1986] HCA 80; (1986) 161 CLR 475 referred to.

Judgment Number: [2011] TASSC 12

1 Typically in motor vehicle accident cases, and this is such a case, the defendant or prospective defendant, through an insurer or solicitors, engages an assessor to collect evidence including witness statements and submit a report for the dominant purpose of the provision of legal advice or services. Sometimes the material is then referred to an expert for opinion. Common law legal professional privilege protects the confidentiality of such material. See Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49. Privilege is implicitly waived if the conduct of the client is inconsistent with the maintenance of the confidentiality of the material. The assessment of whether conduct is inconsistent, where necessary, is informed by considerations of fairness. See Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1. Hence, if a party delivers an expert witness statement which contains an expression of opinion based on privileged material without picking out and recording the factual assumptions upon which the opinion is based, the conduct is inconsistent with the maintenance of the confidentiality of the material and the privilege is lost. See Clark v Boden [2004] TASSC 119; (2004) 13 Tas R 198.

2 Here an expert witness statement from an engineer has been delivered. It makes no reference to witness statements or an assessor's report but, in compliance with r516, it contains the assumptions of fact upon which the opinion is based. The defendant wants production for inspection of the material from which those assumptions are drawn. The application is as follows:

"That within 7 days the plaintiff produce for the inspection of the legal practitioner of the defendant all documents relied upon by Alan Thompson as forming the basis for any of the assumptions of fact expressed in his expert report dated 2 February 2010, including, but without limiting the generality of, the following documents;

(a) any letter of instruction to Alan Thompson for the preparation of his expert report;

(d) any other report or information provided to him for the purposes of the preparation of his report."

3 Counsel for the defendant says that if documents have been provided to the expert witness and those documents have been used to extract the assumptions of fact upon which the opinion is based the documents provided must be produced because it is unfair and hence inconsistent to allow the witness to pick out the parts upon which reliance is based without affording to the opposing party the opportunity to consider the whole of the material.

4 In Clark v Boden Underwood J (as he then was) remarked at par19:

"Preparation for trial is governed by the Supreme Court Rules 2000. Rule 516 requires a party to serve on every other party a reasonable time before trial, 'the substance of the evidence that it is proposed to adduce from the witness as an expert'. There would have been compliance with that rule if the substance of the contents of the statements had been asserted in the proof as assumptions of fact. In that event, it is unlikely that there would be a claim of inconsistent conduct."

5 This remark is consistent with the policy underlying the privilege and with authority.

6 As to the policy behind the privilege I refer to Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 where Deane J said at 114:

"... a person should be entitled to seek and obtain legal advice in the conduct of his affairs and legal assistance in and for the purposes of the conduct of actual or anticipated litigation without the apprehension of being thereby prejudiced ...".

7 Rules 515 and 516 relevantly provide that, subject to any order to the contrary, opinion evidence is not receivable unless the party intending to adduce it serves a statement of the evidence on the other party a reasonable time before the commencement of the trial. The privilege would be illusory if a solicitor could not refer privileged material to an expert witness, whose statement of evidence must be delivered in advance of the trial, without risking an order for production of the material.

8 There is authority directly in point. In Attorney-General for the Northern Territory v Maurice [1986] HCA 80; (1986) 161 CLR 475 Dawson J said at 499:

"The fact that the claim book may have drawn upon information contained in communications which were themselves privileged, being made solely in contemplation of litigation, involves no violation of the confidence in which those communications were made. That is obvious. There would be little point in communications made in contemplation of litigation if they could not be used for the purpose of the litigation. What is important is that the 1982 Claim Book, while its source may be information imparted upon a privileged occasion, does not disclose the content of any privileged communication and so does not abandon the element of confidentiality which the privilege protects. There was, therefore, no waiver of privilege".

9 Counsel for the defendant submitted that delivery of the report and the maintenance of the privilege is inconsistent when informed by considerations of fairness. He said:

"... but the question in this case, that is, inconsistency, considerations of fairness, is what did he rely upon; how has he reached his opinion; and for the purpose of preparing for trial do we put on an expert report contrary to his; do we seek to cross-examine him; how do we know if his reasoning process is soundly based; how do we know if he has made an erroneous assumption of fact; how do we know if he has assumed too much into the facts? None of that can be tested and that is inherently unfair."

10 No unfairness, such as to result in an implicit waiver of privilege, will occur where the expert witness statement includes the assumptions of fact and complies with the other requirements for the content of the statement. There was no assertion that the expert witness statement, under consideration here, lacked the required content.

"(2) If a party intends at trial to adduce the oral evidence of an expert witness, the party is to serve on every other party a statement signed by the witness containing -

(a) the name and address of the witness; and

(b) the qualifications of the witness to give evidence as an expert; and

(c) the substance of the evidence that the party proposes to adduce from the witness as an expert; and

(d) the facts, matters and assumptions on which each opinion expressed in the statement is based (a letter of instruction may be attached); and

(e) the reasons for each opinion expressed in the statement; and

(f) references to any literature or other materials specifically relied on in support of each opinion expressed in the statement; and

(g) any examinations, tests or other investigations relied on in support of each opinion expressed in the statement; and

(h) any qualification of an opinion expressed in the statement without which the statement is or may be incomplete or inaccurate; and

(i) if, because of insufficient research, insufficient data or any other reason, an opinion expressed in the statement is not a concluded opinion, a statement to that effect."

12 In Cole v Dyer (1999) 74 SASR 216 Doyle CJ considered South Australian Supreme Court rule 38 which compelled the pre-trial delivery of expert witness statements and contained a requirement that the statement include particulars identifying the material upon which the expert bases the opinion. The particulars were given, but the source material was withheld. On the question of whether the withholding of the source material produced a relevant unfairness His Honour found that the rule provided an adequate protection. He said at 226 and 227:

"The plaintiff's solicitors should be able to prepare adequately for trial with the material that they have. They know the facts drawn from Mrs Dyer's statements that apparently have been relied upon by the experts. I can find no unfairness in connection with the preparation for trial. It is possible, as is contemplated in some of the decisions referred to, that at trial the position will change. It might emerge that material not particularised has been relied upon. For some other reason it may become necessary to consider the whole of Mrs Dyer's statement. But that is a matter to be dealt with by the trial judge. So fairness in the sense of preparation for trial does not require that a waiver of privilege be imputed.

...

I respectfully disagree with the contrary conclusion of Judge Lunn in Kavanagh v Philpot and Flinders Medical Centre (1998) 197 LSJS 411. The fact that material provided to an expert might (and I emphasise might) become the subject of cross-examination at trial is not a reason to impute a waiver of privilege from its supply to the expert to consider in providing a report. In Kavanagh, the party to whom the report was disclosed had the protection conferred by r38.01. That being so, fairness did not require a waiver of privilege over material submitted to the expert, unless for some reason the rights conferred by r38.01 were, in the circumstances, an inadequate protection."

13 I find no basis for regarding r516 any differently.

14 In short, if an expert witness statement is based upon privileged material and the expert witness has not picked out and recorded the assumptions of fact upon which the opinion is based the privilege will be lost with the delivery of the report but where the assumptions of fact are set out the confidentiality which the privilege protects is not abandoned.

15 Here the statement contains no reference to the source materials and sets out the assumptions upon which the opinion is based. Accordingly, the delivery of the report is not inconsistent with the maintenance of the privilege.