HRNG ADELAIDE, 31 August 1993 #DATE 8:9:1993 Counsel for plaintiff: Mr P Webb QC with

Mr T Bourne Solicitors for plaintiff: Stanley and Partners Counsel for defendants: Mr D Trim Solicitors for defendants: Proud and Company

JUDGE1 OLSSON J In this action the plaintiff sues the defendants for damages in relation to personal injuries sustained by him as a consequence of an accident which occurred whilst he was competing as a rider in a motor cycle race conducted at the Adelaide International Raceway on 5 July 1987. He alleges that the defendants, or some or one of them, were negligent in various respects as to the condition of the Raceway on the occasion in question. 2. One of the issues arising in the proceedings is as to precisely what caused the admittedly serious injuries sustained by the plaintiff, when he came off his bicycle whilst rounding a bend in the circuit and eventually came into contact with a concrete safety wall. 3. It is the plaintiff's case that his major injuries were caused by the ultimate impact of his body with an uncushioned concrete wall and were - it is said - thus the product of the negligence of one or more of the defendants. 4. On the other hand the defendants are seeking to establish that the initial impact of the plaintiff's body with the circuit surface, when he lost control of his bicycle, was probably the cause of the injuries in question - and thus, it is argued, not the responsibility of any of the defendants. 5. In getting up their case for trial the defendants sought a medical report from Mr H R Schaeffer, a specialist neurosurgeon, as to the likely cause of the relevant injuries. A copy of that report ("the Schaeffer report") has been supplied by the defendants to the plaintiffs in conformity with the mandatory requirement of SCR 38.01. 6. A perusal of the Schaeffer report indicates that the opinions expressed in it are based upon factual scenarios emerging from a series of what I take to be eye witness proofs obtained by the solicitors for the defendants for the purposes of the present litigation. It is assumed, for present purposes, that these would, in the normal course, have been the subject of legal professional privilege, although that question may need to be explored, at some future time, in more definitive fashion. 7. The defendants rejected a request that copies of the witness proofs referred to be produced for inspection, claiming that they remain subject to legal professional privilege, despite the reference to them in the medical report. This prompted an application, by notice for further directions filed by the plaintiff, for an order that the proofs be produced for inspection. Having heard submissions in relation to that application I declined to make the order sought and intimated that I would publish reasons for my decision at a later date. I now proceed to do so. In essence the contention of Mr Webb QC, of senior counsel for the plaintiff, was that the situation above outlined, falls within the common law principle discussed by the High Court in Attorney-General for the Northern Territory v Maurice and Ors [1986] HCA 80; (1986) 161 CLR 475. 8. That case focused on the common law principles applicable to situations in which reference is made in a non-privileged document to other source material from which that document was compiled; and which would normally attract legal professional privilege. The High Court held that, in a situation in which there is no intentional waiver of privilege, the question whether waiver should be inferred or imputed depends on whether it would be either unfair or misleading to allow a party to refer to or use material, but, nevertheless, assert that the material, or material associated with it, is privileged from production. 9. In the instant case Mr Webb QC argued that the specific references in the Schaeffer report rendered it clear that, without recourse to the source proofs adverted to, it was not possible to appreciate and understand the factual premises upon the basis of which the opinions expressed were arrived at and, in turn, this would both render cross examination more difficult and protracted and also inhibit procurement of independent assessments as to the validity of those opinions. So it was, he submitted, that, within the principles espoused in the Maurice Case, considerations of fairness demanded production of the relevant source material. 10. Leaving aside any question of the provisions of SCR 38.01, that argument does, with respect, have considerable force. 11. However, the reasoning in the Maurice Case stems from the premise that, when a voluntary waiver occurs in relation to a principal document then, in the circumstances postulated, what has been termed an imputed or inferred waiver also necessarily flows through to relevant source material. In such a situation the critical touchstone in the whole process of reasoning is the original voluntary waiver. The very notion of waiver connotes a voluntary act or concession coming from the party said to be giving the waiver. 12. Such a scenario is totally absent in relation to a SCR 38.01 production of an expert's report. As King CJ pointed out in Wilson v Porter and Anor (1988) 46 SASR 547, that rule impinges on the common law rule of privilege by requiring mandatory production to an opponent of reports prepared for the purposes of litigation and which would, therefore, but for SCR 38.01, be protected from inspection by operation of the principle of legal professional privilege. No question of voluntary waiver is involved. For reasons of sound procedural policy and to aid the smooth preparation for and conduct of the trial without interruption, parties are compelled to make early disclosure of material which, at common law, would be the subject of absolute privilege and would not normally be produced (if at all) until the relevant expert witness was called during the trial. 13. Mr Webb QC sought to argue that the decision in Wilson v Porter and Anor was restricted to a consideration of the proper meaning of the word "report", as employed in SCR 38.01 and did not extend to a review of the status of source materials giving rise and referred to in any report. It did not, he contended, erect a general proposition that such materials remained subject to legal professional material in a manner which ousted operation of the principles canvassed in the Maurice Case. 14. In my view that submission cannot withstand substantial scrutiny. It seems to me that the fundamental reasoning underpinning the decision arrived at necessarily implies a concomitant conclusion that source materials giving rise or adverted to in an expert report, which came into being in circumstances which would normally attract legal professional privilege, do not lose that protection simply because the procedures of the court demand production of a report based on them which, itself, would otherwise have been privileged. 15. As I read his judgment Legoe J expressly made that point. 16. The judgment of the Chief Justice (which was concurred in by Prior J), by necessary implication, accepts such a situation as a given, in arriving at the decision actually come to. 17. With respect, it is difficult to see how any logically contrary view can fairly be arrived at. In producing the report here in question no waiver of privilege ever occurred at the hands of the defendants. They produced the report solely because that was demanded of them by SCR 38.01. They would properly have been the subject of appropriate procedural discipline had they failed to do so. 18. It follows that the essential pre-condition for any consequential imputed or inferred waiver of source material in question was never satisfied. Indeed any contrary conclusion would fly directly in the face of what was obviously in the contemplation of the Full Court in Wilson v Porter and Anor. It would be a strange situation if, having been denied direct access to the relevant source material by reason of that decision, a party could then gain production of it by resort to a common law side wind, the force of which derived from a concept inherently inconsistent with the reasoning of the Full Court. 19. It was for those reasons that I declined to accede to the application for an order that the subject proofs be produced for inspection.