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 applied.

Judgment Number: [2002] TASSC 81

1 The second defendant has delivered to the plaintiff and first defendant a report containing the opinion evidence of a prospective witness. The report records that for the purpose of enabling the author to express an opinion the author was furnished with a number of documents including eight witness statements, but does not purport to recite any parts of those statements or the substance of them. The report contains an opinion to the effect that there is nothing in the documents indicative of negligence. The plaintiff and first defendant have applied for an order for delivery to them of copies of the witness statements. For the purpose of the application it was common ground that the witness statements, but for the reference to them in the expert's report would be protected from production by the doctrine of legal professional privilege. The issue is whether the delivery of the expert witness report has resulted in the loss of the privilege which otherwise would have continued to attach to the witness statements.

2 In Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, Gleeson CJ, Gaudron, Gummow and Callanan JJ said at pars 28 - 29:

"At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context (Ross T Smyth & Co Ltd v T D Bailey, Son & Co [1940] 3 All ER 60 at 70; Larratt v Bankers and Traders Insurance Co Ltd (1941) 41 SR (NSW) 215 at 226; The Commonwealth v Verwayen (1990) 170 CLR 394 at 406, 422, 467, 472). Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege (Cross on Evidence, 5th Aust ed (1996), par 25005; Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 497-498). Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication (Benecke v National Australia Bank (1993) 35 NSWLR 110)., or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received (Lillicrap v Nalder & Son (a firm) [1993] 1 WLR 94; [1993] 1 All ER 724).

Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law" eg Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 95). This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank (1993) 35 NSWLR 110), the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large."

3 The mere fact that privileged witness statements have been referred to an expert for opinion does not waive the privilege. As Dawson J said in Attorney-General for the Northern Territory v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 499:

"There would be little point in communications made in contemplation of litigation if they could not be used for the purposes 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."

4 In support of their claim for production the plaintiff and the first defendant rely upon two Tasmanian cases. The first case is Jessup v Gorjup Tas U/R 139/1997. There, however, the Judge did not formulate the relevant test, but instead applied a test which counsel for the parties had agreed was appropriate in the circumstances of that case. At p3 Crawford J said:

"It was common ground at the hearing of the application that if I determine that the contents of a particular document influenced the contents of Mr Enkelman's proof of evidence then there has been a waiver with regard to privilege in respect of the document, because it would be unfair that the contents be kept from the plaintiffs."

The second case is Atkinson v T&P Fabrications & Ors [2001] TASSC 38 where Evans J said at par4:

"The requisite inconsistency may be manifested when a party indicates an intention to rely upon evidence of a witness which is based upon privileged material provided to that witness. This, not infrequently, occurs when a party delivers an affidavit or proof of expert evidence of a witness. In that situation, the inconsistency between the party's conduct and the maintenance of a claim for privilege in relation to the material relied upon by the witness is compounded by the unfairness of allowing the party's witness to refer to that material whilst also allowing that party to shield the material from scrutinisation and testing by a claim of privilege. Jessup and Anor v Gorjup 139/1997 is a case where a claim for privilege was lost in these circumstances."

5 Counsel for the second defendant, in opposing an order for the production of the witness statements submitted that there was nothing in Jessup or Atkinson to the effect that there is a rule that reference to and possible influence arising from a privileged witness statement in an expert's delivered report is without more sufficient for the privilege to be lost. I accept that submission and proceed on the basis that I am not bound by the Tasmanian cases to make the order sought and that I must consider for myself whether there is an inconsistency in the delivery of the report and the maintenance of the claim for confidentiality.

6 I am of the view that in determining the application I should simply apply the law as to imputed waiver and not be influenced by rules of court which regulate the pre-trial disclosure of opinion evidence proposed to be called. Under the rules, unless there is an order to the contrary "the oral evidence of an expert ... involving expert opinion is not receivable" unless there has first been delivered a statement setting out the name, address and qualifications of the witness and "the substance of the evidence that it is proposed to adduce". Where there is an intention to adduce opinion evidence the statement must be served within a reasonable time prior to the commencement of the trial and if the witness is not called, the opponent, if he wishes, may put the statement in evidence.

7 The rules concerning expert evidence are not concerned with privilege, but with pre-trial disclosure. If there is a failure to comply with the rules the consequence is not loss of privilege. The consequence is as provided in the Rules, namely, that without special order the evidence cannot be adduced. The rules regulating pre-trial disclosure of expert evidence intended to be adduced and the law relating to privilege and its waiver operate within different fields. The law regarding imputed waiver of privilege is based on conduct inconsistent with the maintenance of confidentiality and not some overriding principle of fairness to be discerned from rules of practice.

8 Expert opinions are typically based on facts which for the purpose of giving an opinion the expert supposes to be correct (for example, a history of events given to him by others). In Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85, Mason ACJ, Wilson, Brennan, Deane and Dawson JJ said at 87 - 88:

"It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels JA in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed., vol II, 680, p800; 2 Wigmore, Evidence 680 (Chadbourn rev. 1979), p.942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense."

9 Once it is recognised that it is the expert's suppositions of fact that are relevant rather than the source of those suppositions it can be seen that there is no need for the expert to identify privileged documents asserting facts or to refer to the substance of those documents or extracts from them. If he identifies the document and recites the substance of it in whole or in part and his report is delivered, the confidentiality of those documents, or at least the parts referred to, will no longer exist and the privilege will have been lost. If he simply recites his assumptions of fact it makes no difference whether he has assumed the facts because he was given a list of facts to be assumed by a solicitor or instead a bundle of privileged documents containing the facts which he is asked to assume. If he does not disclose the facts he supposes to exist there may be non-compliance with the rules (ie, a failure to include in the report "the substance of the evidence") and, accordingly, the proposed evidence might not be received. But in any event the opinion will simply be without value to either the opponent or the tribunal of fact.

10 The expert in his report expresses an opinion to the effect that he can find nothing in the documents supplied to him indicative of negligence. The opinion, of course is completely valueless for those who do not have access to all the documents. There is no inconsistency in the expression of an opinion which, unless the documents are produced, the tribunal of fact will find to be valueless and the maintenance of the confidentiality of the witness statements. There are no quotes from or recitals of the substance of the witness statements or parts of them and so again, there is no inconsistency in the delivery of the report and the maintenance of the confidentiality of the witness statements. There will be no order for delivery of copies of the documents. The application is dismissed.