Cupo & Anor v Chief Executive, Department of Transport and Main Roads [2013] QLC 36

(2) the advices received by Mr Bloom from Mr Allan of counsel referred to in paragraph 2.1 of Mr Bloom's report, Exhibit ADB1;

(3) the Anderssen Lawyers files referred to in paragraph 3.1 of Mr Bloom's report;

(4) the retainer letter dated 3 September 2010 referred to in paragraph 4.1 of Mr Bloom's report;

(5) the detailed chronology referred to in paragraph 4.2.4 of Mr Bloom's report; and

(6) Counsel's detailed and complex advice referred to in paragraph 4.2.12 of Mr Bloom's report.

[2] I have been informed by Mr Allan that item number 2 has in fact been the subject of complete disclosure at this time. The ruling will now have some utility, whether or not the respondent has a witness of a like nature to Mr Bloom, as it may determine or will determine the reception or rejection or weight to be given to Mr Bloom's affidavit. The provisions of section 7 of the Land Court Act 2000 in my view don't have any determinative features for the ruling that I have to make. The question essentially is has legal professional privilege been waived explicitly or impliedly. It is clear that it has not been waived explicitly.

[3] The question remaining is has it been waived impliedly over the material referred to in Exhibit 22, such that the affidavit to be admissible would have to be accompanied by disclosure of that material upon which it was based. Now, I note the provisions of section 428, sub (2) paragraph (b) of the Uniform Civil Procedure Rules of 1999 that an expert's report must be addressed to the Court and signed by the expert. The report must include the following information: the expert's qualifications, and, in subparagraph (b), all material facts, whether written or oral, on which the report is based. I take into account what was said in the decision of Makita (Australia) Pty Ltd v Sprowles,[1] particularly at page 731, where the following passage appears at paragraph numbered 64 and continues on to page 732.

[4] There His Honour Justice Heydon said this:

"that the basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are sufficiently like the matters established, to render the opinion of an expert of any value, even if they may not correspond with complete precision, the opinion will be admissible and material."

And His Honour refers to Paric v John Holland Constructions Pty Ltd.[2]

[5] I am also cognisant of what was said at page 743 and 744 in the judgment of Justice of Appeal Heydon, as he then was, at paragraph 85. And His Honour said:

"In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of specialised knowledge; there must be an identified aspect of that field to which the witness demonstrates that by reason of specified training, study, or experience, the witness has become an expert; the opinion proffered must be wholly or substantially based on the witness' expert knowledge; so far as the opinion is based on facts observed by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on assumed or accepted facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of specialised knowledge in which the witness is expert by reason of training, study, or experience, and on which the opinion is wholly or substantially based, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the Court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight."

[6] I also take into account what was said in the case of Dasreef Pty Ltd v Hawchar,[3] and particularly the passage at 629, where His Honour Justice Heydon said, at paragraph 103, about halfway down the paragraph:

"The Full Federal Court recently asserted roundly and rightly the proposition that an expert's opinion based upon certain assumptions which are ultimately proved in evidence is irrelevant is a fundamental principle of law."

[7] I note from the judgement of the High Court of Australia in Attorney-General (NT) v Maurice & Ors,[4] the relevant passage appears at page 481 in the judgment of Chief Justice Gibbs. His Honour there said:

"There was, of course, no express waiver in the present case, and there was nothing to suggest that the claimants had any actual intention to waive privilege in the source documents. The principle applicable in these circumstances seems to me to be well-stated in Wigmore, op.cit., paragraph 2327: 'In deciding it, regard must be had to the double elements that are predicated in every waiver, that is, not only the element of implied intention, but also the element of fairness and consistency. A privileged person would seldom be found to waive if his intention not to abandon could alone control the situation. There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease, whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point, his election must remain final.'"

"The decisions in which this question has been considered seem to me to be particular applications of the rule that in a case where there is no intentional waiver, the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material, and yet assert that that material or material associated with it is privileged from production."

[9] And I note that His Honour used the expression which I emphasise, to refer to "or use material". A further passage to which I will have regard appears at page 487 in the joint judgment of Justices Mason and Brennan in the last paragraph on that page. Their Honours said that:

"A litigant can of course waive his privilege directly through intentionally disclosing protected material. He can also lose that protection through a waiver by implication. An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege."

[10] And over at the top of page 488, Their Honours said:

"The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. Professor Wigmore explains: 'When his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease, whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.'"

And the quote is from Wigmore, Evidence in Trials at Common Law (1961) volume 8, 2327, page 636. I further have regard to the decision of Justice Jones in the Supreme Court in Cairns on 1 March 2001 in Weidner v Cockrell, Kacavelis, and Czygan.

[11] The relevant part of His Honour Justice Jones' judgment is found at paragraph number 13, where His Honour said that:

"The circumstances attending the claim for legal professional privilege in this case are that the disclosure of the privileged material was being made to an expert for an opinion which is required by the Rules to be disclosed. The disclosure to a third party is not for a limited or for an actual purpose, but was integrally connected to the litigation. Disclosure in such circumstances in my view constitutes a waiver of legal professional privilege, and the documents therefore should be disclosed."

I have further regard to a decision of the High Court in Mann v Carnell,[5] and the passage to which I have particular regard occurs at page 13, at the bottom of the page.

[12] Where, in the judgment of Chief Justice Gleeson and Justices Gaudron, Gummow, and Callinan, Their Honours said:

"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 confidentially, not some overriding principle of fairness operating at large."

I also take into account a decision of the Queensland Court of Appeal in Interchase Corporation Limited (in liq.) v Grosvenor Hill (Queensland) Pty Ltd (No. 1) 1999 1 Qd.R. 141. And I have reference particular to the part appearing at pages 159 to 161 in the judgment of Thomas J.

[13] Towards the bottom of page 159, second last line His Honour said:

"It has been said that waiver is to be implied when by reading of some conduct on the privilege holders' part it becomes unfair to maintain the privilege," and His Honour referred to the Attorney-General for Northern Territory v Maurice & Ors per Mason and Brennan JJ. Thomas J said, "One example where this would seem to be so would be when a party calls an expert to present his opinion which has been formulated in a report. Proper examination and cross-examination of the expert would be seriously compromised unless assumptions and facts on which the expert proceeded and the process by which he or she arrived at the opinion could be explored."

Further on that same page 160 at about line 137 to 140 His Honour said:

"It is desirable that the rules be such that the Courts or the adversary be able to explore fairly fully the circumstances of the formation of the opinion."

[14] In the last two lines on page 160 into the top of 161 Thomas J said:

"Whatever the limits and protection of the communication both between the solicitor and the third party may be, it is difficult to see any justification in principle or policy for protection of documents which the expert generates and the information which he or she collects in order to form an opinion."

On page 161 at lines 22 and following Thomas J said that:

"the approach taken in the English decisions is illustrated by the following passage from the judgment of Scott J in W v Edgell [1990] Ch. 359 396. If a document is submitted to an expert witness for examination and if the opinion of the expert is relevant to an issue in the case, the expert is, in my judgment, in civil cases at least, a competent and compellable witness to give evidence of what has been put before him and of his opinion on it. Legal professional privilege attaches to documents brought into existence for the purpose of legal proceedings but if such a document is placed before an expert witness for his opinion, it becomes in my judgment part of the facts on which the opinion is based. The expert cannot be barred when giving evidence of his opinion, from referring to the facts on which the opinion is based, including if it be the case documents which in the hands of solicitors would be covered by legal professional privilege."

[15] And at about line 48 of that same page, 161, Justice Thomas said:

"it would seriously jeopardise the proper testing of such witnesses if privilege were extended to documents of the kind which are described in categories which his Honour set out".

I have additionally had regard to the decision of the Court of Appeal Queensland in Tarong Energy Corporation Limited v South Burnett Regional Council. It is reported in 2010, 1 Qd R. at 575 and the particular passage that I have regard to is at page 590 and 591 of the report. At that place Justice of Appeal Fraser said from about line 30 on page 590,

"In these circumstances, even if the denial to Tarong of access to the barrister's opinion, would impinge upon the public interest in parties to litigation having full access to all facts relevant to the issues in litigation, that would not itself justify the abrogation of privilege".

[16] In Esso Resouces Ltd and the Commissioner of Taxation of the Commonwealth of Australia, Chief Justice Gleeson, Justices Gaudron and Gummow referred approvingly to Mason and - Justice Mason and Wilson's explanation of Waterford and the Commonwealth,

"that legal professional privilege is itself the product of a balancing exercise between competing public interests and that given the application of the privilege, no further balancing exercise is required".

His Honour went on to refer to circumstances relevant to the argument presented in the Tarong case and at the last line of page 590 to the top of 591 he said,

"In those decisions a party to litigation to reveal part of a privileged communication to an opponent or otherwise, deployed the privileged communication in litigation"

and I emphasise the words, deployed the privileged communication in litigation.

[17] My ruling is that for the affidavit of Mr Adam David Bloom to be admissible, the matters that have been referred to in items 1 to 6 of Exhibit 22 are instances of the deployment of privileged communication in this litigation. My ruling is that privilege has been impliedly waived in relation to that material on the basis of the authority to which I have referred. The objection is allowed. The document tendered which is Mr Bloom's affidavit, will not be admitted until all six items of disclosure listed in Exhibit 22 are made to the respondent and the Court hereby orders that such disclosure be made forthwith and I reserve the right to tidy up my reasons if necessary to put them into written form for publication. Those are my reasons.

1. Privilege has been implicitly waived in relation to the material.

1. Mr Bloom's affidavit will not be admitted until all six items of disclosure listed in Exhibit 22 are made to the respondent.

[1] [2001] NSWCA 305; (2001) 52 NSWLR 705.

[3] [2011] HCA 21; (2011) 243 CLR 588.

[4] [1986] HCA 80; (1986) 161 CLR 475.

[5] [1999] HCA 66; (1999) 201 CLR 1.