Waiver
54 The first applicants have voluntarily provided copies of certain statements referred to in the report of Mr Robinson to the first respondents and a copy of the typed field notes of John Laurence. I accept this voluntary disclosure does not result in any waiver of privilege on other documents such as the remainder of the field notes.
55 Waiver of privilege is to be implied and imputed by a court when by reason of some conduct on the privilege holders part it becomes unfair or misleading to maintain the privilege: See Attorney-General for the Northern Territory v Maurice (supra) at 487. As previously stated, the first applicants accept that when they call on the expert Mr Robinson to present his opinion, assumptions and facts on which the expert proceeded must be open to be explored.
56 It is said prior to that time no unfairness can exist by maintenance of the privilege. The first respondents dispute that on the basis that if disclosure only occurs then, they will have lost the opportunity to cross-examine any of the applicants on information which those applicants provided to the expert and on which he relied. The first respondents also rely on Hoad v Nationwide News (1998) 19 WAR 468 where Steytler J did not accept that no implied waiver could occur unless and until documents in question had been used in Court. He stated that principle with reference to "circumstances of this kind." The circumstances of this kind to which he referred were those involving partial disclosure of legal advice. His reasoning derives significantly when what was said in Maurice at 482 - 3, 498, 488, and 493. Nevertheless, the circumstances before him involving that partial disclosure are not the circumstances presently before me.
57 The relative unfairness is one which must be addressed in the context of the trial, if there is such unfairness to be found. The trial commenced in September and on the best estimate of the first applicant and first respondent will continue until April or August, 2000 with some intervals of non-hearing time. Delay in waiver only has these results, namely to possibly extend the time of the trial if witnesses are to be recalled for cross-examination and to impose a burden of preparation on the first respondents and other respondents in the heat of cross-examination. There is therefore to be weighed by me, what I perceive to be a forensic advantage sought by the first applicants in maintaining the privilege until a point in time when the first applicant's witnesses, who are authors of the relevant communications, are no longer available for cross-examination.
58 However, in weighing whether that is an unfairness I must consider, and I consider it is important, that none of the first applicants have been discharged so that further cross-examination of any of them concerning communications to the expert is still arguably a possibility. No unfairness, in my view, can therefore be inferred at this point in time because, if such cross-examination is allowed, it would address any arguable unfairness to the respondents, albeit at the cost of delay possibly to the progress of the trial.
In any event, I consider there is a further barrier to waiver being implied. For waiver to be implied, there must have been some disclosure or use of the material, Maurice at 482 - 3 per Gibb CJ. There has to be some conduct touching the point of disclosure: Maurice at 488 per Mason and Brennan JJ citing Wigmore on Evidence. The privileged material has to be used: Maurice at 493 per Deane J and the effect of the use is such that there has to be an assertion of the effect of the privileged material or the disclosure of part of its contents.
59 It is well established that reference to a document in pleadings will not amount to a waiver if it is not re-produced in full: Maurice at 481. In Maurice it was held that the preparation, publication, tender and limited reference to the 1982 Claim Book did not impute to the Aboriginal claimants a waiver of their right to rely on client legal privilege in relation to documents which neither formed part of nor were expressly referred to in the Book. In my opinion the use of the expert's report to date in the proceeding is not such that there has been a relevant assertion of the effect of the privileged material and, in any event, the ratio of Maurice should be followed.