This rule is to be followed within a specified time frame. This rule was not complied with in the instant case in that Elders only served the plaintiff and not, as it was obliged to do under the rule, the Council.
14 As to this, Elders says that it could have filed a notice of motion, and had it done so, the court would have made an order that the rule not be complied with because there was no cross claim between the two defendants and it would have been unfair to require Elders to disclose its reports without a contribution to their cost. It says that instead of doing this, it made it clear to the Council's solicitors that unless they filed a notice of motion seeking that the rule be complied with, they would not supply the reports and if a motion was filed, they would counterclaim that they should not be ordered to give the reports.
15 In Akins v Abigroup Ltd (1998) 43 NSWLR 539, this Court consisting of Mason P, Priestley JA and Rolfe AJA, determined in connection with a practice note in the then Commercial Division requiring experts' reports to be served on other parties, that such reports were disclosed under compulsion of law so that any privilege which attached to them was not lost, this result coming about because of s 122(2)(c) of the Evidence Act. The decision was followed by the Full Federal Court in The Bell Group Ltd v Westpac Banking Corporation (1998) 86 FCR 215.
16 Although Mr Sheldon sought to distinguish the case on the basis of different terms of the then practice note and the current rule, particularly drawing attention to the fact that the practice note contained "(e) nothing in this order shall deprive any party of its right to treat any communication as privileged or make admissible evidence otherwise inadmissible", I myself cannot see anything which distinguishes the present case from Akins. See also Sevic v Roarty (1998) 44 NSWLR 287, particularly at 293 where Akins was applied and the members of the Court of Appeal discuss the differences between the practice under the Evidence Act and that at common law.
17 It might be argued that because there was no proper compliance with Part 36 r 13A(3) in that there was only service on the plaintiff and not on the Council, the disclosure was not by compulsion of law. I cannot see, in the light of the correspondence, how this inference could be taken. Of course, if it is not taken, then it must follow from Akins' case that the privilege has not been waived.
18 Even if the inference could be drawn, then the claimant would still be faced with the problem that there is not necessarily a waiver of legal professional privilege by making documents available to a particular person: Mann v Carnell (supra).
19 I cannot see why any forensic advantage would be given by disclosing the documents to the plaintiff but not to the Council. Mr Cranitch SC for the plaintiff tried to convince me that there could be some forensic advantage, but despite his best efforts I could not see it. However, the motive is unimportant. It was open to Elders to act the way it did and in my view the learned judge was correct in finding that privilege had not been waived.
20 I very much regret this decision which I am obliged to reach in view of the terms of s 122(2)(c) of the Evidence Act because it runs contrary to what I have understood to be good practice. Furthermore, it is rather bizarre that a person claimed that there is privilege to certain documents, yet that person is prepared to sell that privilege for 50% of the cost of acquiring the information without that much worry as to the nature of the material.
21 It was pointed out to counsel during the argument that it was common practice for parties to re-serve medical reports on other parties if they themselves felt they might wish to tender those reports. Mr Morris acknowledged that this practice was common but said it had never been held that the person who re-served the report could ever use it as it may well have been subject to privilege. This is an accurate statement but there are complications because it may be that the report is deployed in proceedings where the person owning the privilege has no part to play. However, the doctrine expounded in Home Office v Harman (1983) 1 AC 280 may be a complete answer to that thought.
22 It must also be remembered too that there is no property in a witness. The Bar Rules for many years have emphasised this. A witness is available to be interviewed by any lawyer to whom the witness will speak. Likewise, once an affidavit has been filed, usually any party can read it in evidence (subject to making the deponent available for cross examination if required: In re Margetson and Jones (1897) 2 Ch 314; Barristers' Board of Western Australia v Tranter Corp Pty Ltd (1976) WAR 65, 67. See also Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958, a decision of Barrett J.
23 However, the state of authorities is such that the appeal must be dismissed with costs.
24 DAVIES AJA: I agree with the reasons for judgment of Young CJ in Eq and with the orders which his Honour proposes. I wish to comment on one aspect of the matter only.
25 Part 36 r 13A(3) of the Supreme Court Rules, 1970 provides that, unless the Court otherwise orders, a party shall serve experts' reports and hospital reports on each other party who has an address for service in the proceedings. There is a similar provision in the District Court Rules. These rules mean what they say and they are not to be flouted. As Mason P said in Akins v Abigroup Ltd (1998) 43 NSWLR 539 at 551, the rules will be enforced "with all appropriate sanctions". The course with which the solicitor for Elders took was inexcusable and, had an appropriate process been instituted by it, I would have expected the solicitor to have been sternly reminded of the force and effect of the rules.
26 However, no such process was instituted. I agree with Young CJ in Eq that, having regard to the process that was before the Court below, the decision of the trial Judge was correct.
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