FRANCES CLARE DYBALL (BY HER TUTOR CHARLES DYBALL) v THE HARDEN SHIRE COUNCIL; WESTPAC BANKING CORPORATION v THE HARDEN SHIRE COUNCIL

Supreme Court of NSW|2004-05-26|Before: Levine J

CITATION : FRANCES CLARE DYBALL (BY HER TUTOR CHARLES DYBALL) v THE HARDEN SHIRE COUNCIL; WESTPAC BANKING CORPORATION v THE HARDEN SHIRE COUNCIL [2004] NSWSC 486 HEARING DATE(S) : 26 May 2004 JUDGMENT DATE : 26 May 2004

JUDGMENT OF : Levine J DECISION : Limited access granted

CATCHWORDS : Evidence - application by defendant for access to documents in possession of plaintiff's investigator - claim for client advice and litigation privilege - asserted imputed waiver LEGISLATION CITED : Evidence Act 1995 s 118, s 119, s 122, s 126 Supreme Court Rules Pt 36 r 13A(1), Pt 36 r 13C, Pt 39 r 2, Schedule K CASES CITED : Roache & Ors v Page & Ors (No 17) [2003] NSWSC 973 Telstra Corporation v BT Australasia Pty Limited (1998) 85 FCR 152 FRANCES CLARE DYBALL (BY HER TUTOR CHARLES DYBALL) (Plaintiff)

THE HARDEN SHIRE COUNCIL (Defendant) PARTIES :

WESTPAC BANKING CORPORATION (Plaintiff)

THE HARDEN SHIRE COUNCIL (Defendant) FILE NUMBER(S) : SC 20241 OF 2002; 20098 OF 2004 B Toomey QC / C Heazlewood (Plaintiffs) COUNSEL : L Morris QC / J Morris (Defendants) Walsh & Blair (Plaintiff - Dyball)

SOLICITORS : Corrs Chambers Westgarth (Plaintiff - Westpac)

[2004] NSWSC 486 DLJ:1 Ex tempore: revised IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

FRANCES CLARE DYBALL (BY HER TUTOR CHARLES DYBALL) (Plaintiff)

JUDGMENT - Evidence - application by defendant for access to documents in possession of plaintiff's investigator - claim for client advice and litigation privilege - asserted imputed waiver 1 The present application by the defendant has crystallized today. It was adverted to yesterday afternoon in the context of Mr Adam giving evidence and the preference of senior counsel for the defendant not to cross-examine him until there had been resolved the claim for privilege asserted by Blue Ribbon Investigations. The claim for privilege arises in the context of there having been served on Blue Ribbon Investigations a subpoena for production issued by the solicitors for the defendant. That subpoena required the production of the following: "1(a) a plan, specification, investigation, diagram, proposal, review, recommendation, report, statement, file note, note book, statements, agreement, record, facsimile, letter, minutes, schedule, correspondence, memorandum or email communication; (b) any other thing on which there is writing; or (c) any other thing on which there are marks, figures, symbols or perforations having a [meaning] for persons qualified to interpret them. 2 All documents recording the plaintiff's accident that took place at or near the roads with motor vehicle registration number (NSW) CD-099. 3 This subpoena".

2 The subpoena was answered and a claim for privilege made with respect to some of the material in the envelope. I say that on the basis that statements referred to in exhibit A in the action, in the reports of Mr Hespe and Grant Johnston as having been provided to each, have been delivered by the plaintiff to the defendant. 3 In support of the claim for privilege affidavits have been sworn and read. The first, by Domenico Antonio Mileto sworn 25 May, a licensed private inquiry agent, constitutes evidence of his compliance with the subpoena by production to the Court of all documents in his possession or control. The deponent further states in paragraph 3 that he has "no tape recordings, notes, memoranda or correspondence relating to my investigations on behalf of the plaintiff", other than what is referred to in the preceding paragraph of the affidavit. The deponent then states that source documents, once the statements have been engrossed, were destroyed by him on his understanding of the requirements of Privacy legislation. 4 Pausing there, on that unchallenged evidence, the matter of the existence of tape recordings and notes made by the investigator when he interviewed Mrs Barnes can be put to rest. I infer that it can be put to rest in relation to any other person he interviewed. 5 The second affidavit is that of Timothy James Abbott, solicitor for the plaintiff, sworn today 26 May. The deponent states in paragraph 2 that he requested Mr Mileto to investigate the accident involving the plaintiff and that he obtain statements from any potential witnesses. The claim for privilege advanced for the party by Mr Abbott is made in the following terms in paragraph 4: "4 I say that the documents which consist of statements and correspondence between Walsh & Blair and Mr Mileto are confidential communication between Walsh & Blair and Mr Mileto which came into existence and were to be used for the dominant purpose of providing professional legal services and advice to the plaintiff in these proceedings". 6 That paragraph seems to indicate that the privilege being asserted was a privilege both under ss118 and 119 of the Evidence Act 1995. 7 Also on this application is an exchange of correspondence between the solicitors for the parties (exhibit A), which relevantly confirms, certainly in relation to Mr Hespe, that plaintiff's solicitor has provided all the statements referred to in Mr Hespe's report to the solicitors for the defendant. 8 Exhibit B on the application is, first, a subpoena addressed to a third party or a stranger to the proceedings, namely the State Emergency Service; secondly, documents which I take to have been delivered to the Court by that entity in compliance with the subpoena; and thirdly, what is said to be the relevant document, namely a statement of Suzanne Maree Beal. In relation to that statement it is to be observed first, if not implicitly or expressly, then certainly by inference, that it purports to be a statement having been compiled by Mr Mileto of Blue Ribbon Investigations in respect of the subpoena to which this application is concerned. It is further to be observed that this statement is undated and unsigned. It is further to be observed that for the purposes of this application I have no evidence that the plaintiff has a copy of this statement in its possession. That is a very strict view and I will come back to the status of that document in due course. 9 Another matter is that by reference to page 74 of the transcript and MFI 2, it is known that the plaintiff has in her possession a statement dated 21 July 2002 made by Senior Constable Smith to an investigator whom one must inevitably infer to be Mr Mileto. The statement, curiously enough in the present context and in hindsight, was objected to by the defendant when deployed by senior counsel for the plaintiff. 10 Junior counsel for the defendant provided useful submissions in writing which he amplified orally before me. They are to the following effect. Conformably with an observation which I have in fact made, the privilege being asserted is both advice and litigation privilege. It is submitted that the plaintiff must establish whether the information has been collected for the predominant purpose of obtaining advice or for use in anticipated litigation. To the extent it is said that the information is collected in the pre-litigation stage, the assumption fairly can be made, I suppose, in the absence of there being any litigation, or any basis for rationally concluding in accordance with the terms of s119 that litigation was "anticipated" or "pending", that the material was obtained only for the provision of legal advice. My view in the context of this litigation is that the assumption readily and rationally can be made that the information, that is I assume to be information to be collected by the investigator, was not only for obtaining advice but in anticipation at least of litigation. 11 It is then submitted that in the event that it is obtained for the provision of legal advice, any documents obtained or prepared by the investigator do not fall within any relationship set forth under the Evidence Act. I was not provided with any authority that supports so sweeping a submission, but it would seem to me that a relationship that would encompass a private investigator is that between a lawyer acting for a client and another person in s119(a). 12 There must be positive evidence, as is submitted, that the material or information was obtained for the purpose of litigation. I am satisfied on the evidence I have that this was so. 13 Voluntary disclosure of the documents will result in a waiver of any privilege: s122. Pausing there, it would seem to me first that the deployment of MFI 2 would constitute a waiver. Further, it would seem to me in the context of this application that if it be the case that MFI 2 was in the packet, any privilege in relation to it has been waived and the document would have to be disclosed to the defendant. 14 The next and substantive part of the defendant's application was concerned in general terms with Schedule K to the Supreme Court Rules, the Code of Conduct for expert witnesses. It is important to bear in mind that Code of Conduct, as Schedule K is founded in Pt 36 r 13A(1), which is in the general evidence rules of the Court, and Pt 39 r 2 which is part of the rule dealing with Court appointed experts. It can fairly be taken that there is nothing in Pt 39 r 2, Pt 36 r 13C or the schedule itself which expressly imposes upon the party engaging the expert any rules as to that party's conduct, save as to what the rules expressly state what the party must do in relation to the service of the report, supplementary reports and admissibility of reports. I say that because it was fundamental to the defendant's submission that there exists in lawyers retaining experts, to put it neutrally, a duty of impartiality correlative with that which the code requires the expert to show in the preparation of the expert's report. That proposition was said to be especially applicable in circumstances where the lawyers retaining the expert provide the expert with statements and other materials rather than a "series of assumptions". 15 It is submitted that the provision of only limited statements to an expert is a step in proceedings which as a matter of procedural fairness constitutes a waiver of privilege over statements with which the expert was not provided.

16 Leaving to one side the "list of assumptions", it is submitted that if it is the case that the plaintiff did not provide the expert with all statements in the plaintiff's possession, the plaintiff was holding out to the expert, that that expert had been provided with a "complete evidentiary brief". Upon such a brief so held out, it is argued, the expert prepares a report in relation to which he makes his declaration in accordance with Schedule K. 17 It is argued that the expert is precluded from complying with the requirement as to impartiality that underpins Schedule K when not briefed with all statements "which may qualify or contradict those provided to the expert". It is not, of course, submitted that there is any such express statement in Schedule K, but as I understand the submission, in the end, rests in paras 6 and 7. "6 If an expert witness who prepares a report believes that it may be incomplete or inaccurate without some qualification, that qualification must be stated in the report. 7 If an expert witness considers that his or her opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed". 18 The submissions, both in writing and orally, go on to deal with a situation in fact, expressly founded, so it is said, in what has happened here: namely, that the expert has been required to sift through factual material to determine the favourable outcome for the party retaining him. If such a proposition is available, it is premature to advance it on the claim for privilege with which I am presently dealing. I do not see any need for me in the resolution of the claim for privilege made by a private investigator retained by the plaintiff to embark upon an analysis of the effect, if it be an effect at all, of the plaintiff having not provided to the expert all of the statements in the plaintiff's possession, if that be the fact. 19 The general area of the plaintiff not providing the expert with all the material and thus compromising the expert's capacity to be an impartial witness for the Court, it is said, amounts to an imputed waiver of privilege by conduct, if not an abuse of process of the Court, because, as has been remarked, the expert opinion cannot be capable of fair and reasoned assessment without recourse to information which might qualify or modify that opinion. That information is said to be the statements not provided to the expert. 20 In support of that proposition, reliance is placed upon a decision of the full Federal Court in Telstra Corporation v BT Australasia Pty Limited (1998) 85 FCR 152. The Bench was comprised of Beaumont, Branson and Lehane JJ. That case is not quite in point. It is a case concerned with discovery in an action under the Trade Practices Act which was one of those actions junior counsel referred to as - and I may be putting words in his mouth, "state of mind actions", further exemplified by Contracts Review Act cases, actions for professional negligence against lawyers where the state of mind of the plaintiff would be a critical component. That fact might more easily lead to the conclusion of the waiver of privilege in relation to what I will call advice documents; the sense in that is self-evident. 21 This is not a state of mind case and this is not a state of mind application. It is merely an application in relation to a privilege claimed by an investigator. 22 Alternatively, it is contended that by the tender of the expert reports (exhibit A in the action), subject to objections yet to be resolved, there has been a waiver of privilege under s126 of the Evidence Act in relation to documents as is referred to in that section which might qualify the material upon which the expert gave his opinion. In the context of the application made by the defendants vis-à-vis the investigator, that proposition is, to say the least, premature. 23 In the course of his submissions, senior counsel for the plaintiff characterised the essential components of the defendant's submissions as ones which if correct, would completely defeat client legal privilege. This submission has some force. The issues with which I am concerned in this application or cognate issues, were dealt with by Sperling J in Roache & Ors v Page & Ors (No 17) [2003] NSWSC 973 (28 October 2003). 24 In that case, apparently counsel for the plaintiff had challenged a claim for legal professional privilege made by the defendants in respect of certain documents produced in court under subpoena. The documents were described by the defendant's legal representatives in a way that indicated that they were communications or notes of communications between the defendant's solicitors and a doctor, an expert witness to be called in the defendant's case. His Honour ruled the claim for privilege was not negated by the description of the documents. His Honour referred to SCR Pt 36 r 13 which relates to privilege, s119 of the Evidence Act, Pt 36 r 13C and Schedule K. 25 It is some general observations his Honour made that have some relevant force. 26 His Honour characterised the plaintiff's argument in para [7] of his reasons thus: "[7] The gist of the plaintiff's argument was that, in the context of Pt 36 r 13C and Schedule K, the dominant purpose of communications with an expert witness is to assist the court and not the provision to the client of professional legal services."

His Honour went on: "[8] Assistance to the Court must be the witness's dominant purpose in providing an opinion for the use in the proceedings. But the purpose of communications between the party's legal representatives and the witness is nonetheless predominantly to assist the party. That is because the predominant purpose of such communications is to bring forward expert evidence in aid of the party. But for that purpose, the communications would not be entered into at all. The fact that the witness is constrained to assist the Court and to be impartial does not displace that purpose. [9] The plaintiffs' argument fails to recognise the adversarial nature of the proceeding. No party is under an obligation to adduce expert evidence to assist the court. No expert is obliged to provide evidence to assist the court. (Experts are not amenable to the coercive power of the court to compel their attendance at court.) The court receives the benefit of assistance from an expert only if it suits a party to adduce such evidence. (That is, unless the court itself appoints an expert witness: rarely done, and not relevant for the present case). The witness's evidence must be impartial, but communications with a view to securing and facilitating the provision of such evidence are entered into for the purpose of assisting the party, not for the purposes of assisting the Court. To suggest otherwise fails to recognise this reality. [10] The position at common law is clear and entrenched. Communications with a potential witness are protected by legal professional privilege. One would need a clear expression of legislative intent before the common law was to be taken to be abrogated in relation to expert witnesses. No such expression of intent is to be found in the rules or in s 119. [11] The broader implication of the plaintiffs' argument also work to defeat it. At common law, legal professional privilege attaches to communications with any prospective witness. A lay witness is bound to tell the truth. Honest lay evidence is of no less assistance to the court than honest expert evidence. The plaintiff's argument would, therefore, apply equally to communications with a prospective lay witness. The argument accordingly runs against the common law principal in relation to witnesses generally, expert and lay alike, it is all or nothing. No intent to abolish the principle altogether can be found in the rules or in the Evidence Act."

27 His Honour then said it was for those reasons that the description of the document did not negate the claim for legal professional privilege. It seems to me that, reversing the situation to that which applies here, his Honour's observations are very pertinent. First, to the acutely relevant matter, namely, this is an application in relation to a claim for privilege by the investigator, and secondly, potentially, in relation to the position of the expert. 28 I have not inspected the package, in which I infer there is contained the remnants of what was produced by the Blue Ribbon Investigators. I do not see any need to do so. 29 The claim for privilege however, in relation to two documents cannot be upheld in my view. The first is the statement of Mrs Beal in the form in exhibit B, as that statement has come into the hands of a stranger, namely, the Southern Emergency Service. 30 If it be the case that the packet contains that statement in that form, then clearly privilege cannot relate to it. That ruling of course, does not affect the status of the document in the sense of how it can be used as evidence of anything subject to further argument or further evidence given that it is unsigned, undated and not witnessed. 31 I have earlier made the observation as to the only other document, if it has come from the packet, the subject of the subpoena, namely MFI 2. 32 I rule accordingly.

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