The plaintiff filed a notice of motion on 27 July 2023 seeking access to documents that had been produced under subpoena by a Dr Vijay Roach. The defendant opposes access to a particular document (albeit comprising two pages) because it says legal professional privilege attaches to the document. No privilege claim was made in respect of the other documents produced by Dr Roach.
The plaintiff relies on the affidavit of Mr Yevgen (Yeugeni) Shkuratov dated 27 July 2023.
The defendant relies on the following affidavits:
1. Ms Jacinta Smith dated 17 August 2023.
2. Ms Jacinta Smith dated 20 October 2023.
3. Ms Jacinta Smith dated 27 October 2023.
4. Dr Vijay Roach dated 18 August 2023.
Mr Yevgen Shkuratov is a solicitor acting for the plaintiff. Ms Jacinta Smith is a solicitor acting for the defendant. Ms Smith was cross-examined in particular on her most recent affidavit. Dr Roach is a medico-legal expert.
The parties agreed that the question of privilege should be decided at common law, and not pursuant to ss 118 and 119 of the Evidence Act 1995 (NSW). The defendant accepts that it carries the onus to establish the claim of legal professional privilege.
The plaintiff says that the document is not privileged, but if it is, that privilege has been waived.
The background is as follows. The defendant is, effectively, a hospital. The plaintiff gave birth to a child on 16 September 2018 in the hospital. The baby was delivered by vaginal birth. An episiotomy was necessary as was the use of forceps placed on the baby's head to assist the delivery.
The plaintiff alleges that the method of her giving birth caused her personal injury. The injuries are to her pelvic floor and the adjacent structures. The plaintiff alleges that her injuries would have been avoided had the birth been effected by caesarean section. She says that the hospital, which had managed the plaintiff's pregnancy, was negligent in failing to advise her to give birth by caesarean section and in not performing this operation when the plaintiff came to give birth. In addition, the hospital, by its staff, had specifically declined a request from the plaintiff for the caesarean section surgery to be performed.
On 20 December 2022 the plaintiff issued the subpoena to produce to Dr Roach. He produced documents on 8 May 2023. After a previous hearing, in which consent orders were ultimately made on 6 July 2023, the schedule to the subpoena was amended and first access was granted to the defendant. Following inspection of the document by the defendant the claim for privilege was made.
The relevant chronology in respect of the document began with a letter dated 19 September 2022 in which the defendant's solicitors provided Dr Roach with hospital records, the statement of claim, and the report of the expert retained by the plaintiff (Dr Dietz).
The letter of 19 September 2022 asked Dr Roach to review the enclosed documents and then to "discuss your verbal opinion in relation to the Hospital's liability in this matter". The letter ended: "Thank you for agreeing to provide your verbal opinion. We confirm that a written report is not required at this stage."
Dr Roach then reviewed the documents and, on 3 October 2022, told the defendants solicitors that he was able to provide his verbal opinion. He suggested various times for a telephone conference.
The telephone conference occurred on 4 October 2022 between Ms Smith and Dr Roach. The document at issue was created by Dr Roach sometime after he received the above material and before the telephone conference. The document was used by Dr Roach in his conversation with Ms Smith.
In his affidavit Dr Roach states:
"On 4 October 2022, I conferred with Ms Jacinta Smith of MinterEllison by telephone in relation to the plaintiff's claim. In the course of this discussion I referred to the 2 pages of handwritten notes I had prepared. I used them as the basis for expressing my verbal opinion to Ms Smith."
Armed with the information she had gleaned from the telephone conference Ms Smith gave written legal advice to her client (an insurer).
On 14 October 2022 Ms Smith, by letter, instructed Dr Roach to prepare a written report. Ms Smith sent the doctor the same material that she had previously sent to him. The requested report was to be constituted by the answer to six questions. Dr Roach, as stated, produced his report on 26 November 2022. It was served on the plaintiff's solicitors on 14 December 2022.
Normally when one party serves an expert report the documents behind that report, in particular those used in its preparation, could not be the subject of a privilege claim. In this case the defendant has introduced a subtlety to distinguish this document from the rest of Dr Roach's documents.
The subtlety arises from Dr Roach stating: "I used them as the basis for expressing my verbal opinion to Ms Smith."
The reason the just quoted words assume an importance is because the defendant asserts that they have converted the document into a communication.
There is little doubt that, at common law, a document that is not a communication cannot be the subject of a claim for privilege. In Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; [1997] HCA 3 at 525 Toohey J stated:
"Reference to copy documents tends to obscure the fact that privilege does not attach to a piece of paper. It attaches to a communication, written or oral, and it is the communication that is at issue. While it is natural to speak of legal professional privilege in terms of documents, it is the nature of the communication within the document that determines whether or not the privilege attaches."
The plaintiff submits that the document here is no more than a "piece of paper." The defendant submits that the use of it "for expressing my verbal opinion to Ms Smith" rendered it a communication.
In Australian Securities & Investments Commission v Southcorp Ltd [2003] FCA 804 ("Southcorp") Lindgren J stated, at [21.3]:
"Documents generated unilaterally by the expert witness, such as working notes, fieldnotes, and the witness's own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications."
A little later, at [26], Lindgren J stated:
"Client legal privilege is not established in relation to the draft report itself. I am not dissuaded from this view by the evidence that the draft was produced as the result of a conference between Mr Villante, Ms Vucic and counsel. It is consistent with the evidence that the draft was, nonetheless, relevantly, the expression of Mr Villante's own thinking. I do not infer from the evidence that the draft constitutes or reveals a communication between Mr Villante and ASIC's lawyers."
In Interchase Corporation Limited (in liq.) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141; [1997] QCA 450 Thomas J provided the following summary of the general law relating to legal professional privilege:
"The rationale of the protection of legal professional privilege is a perceived need to protect the confidences between clients and their legal advisers ... However more complex factors arise when the solicitor finds it expedient to enlist the assistance of other persons. In this context an expert is a third person from whom the client, represented by a solicitor, hopes to obtain an advantage. The extent of protection applying to communications between the solicitor and the expert concerning alleged facts or hypotheses which the expert is asked to assume is, I think, a grey area ...
Whatever the limits of protection of the communications (both ways) 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. The important principle that there is no property in a witness means that an adverse party may subpoena an expert retained by the original party and require that expert to give all relevant information in his possession, including an expression of his opinion, to the Court. …
There is simply no authority supporting the view that privilege extends generally to documents on which an opinion is based. In the field of expert evidence it is difficult to sever an opinion from the information and process upon which it is based. …
I would hold that in general, when an expert is engaged by a solicitor for the purpose of giving evidence in a case, documents generated by the expert and information recorded in one form or another by the expert in the course of forming an opinion are not a proper subject for a claim of legal professional privilege. Privilege may however be claimed in relation to communications between the expert and the solicitor (both ways) when such communication is made for the purpose of confidential use in the litigation."
In Ryder v Frohlich [2005] NSWSC 1342 ("Ryder") Barrett J said at [12]:
"The point made here is that privilege can only attach to documents which embody communication between the expert and the litigant by whom the expert is retained (or the litigant's lawyer). A draft report prepared by the expert is not, of its nature, such a communication. It may be that the draft report is, in fact, given or sent by the expert to the litigant or the litigant's lawyer, but that does not change its character as something prepared by the expert which is not intended to be a means of communication with the litigant or lawyer."
The defendant did not dispute the accuracy of any of the statements of principle set out above. However, the defendant emphasised that this case did not fall within the scope of "in general" and needed to be examined on its own facts.
Thus submitted the defendant, when Dr Roach spoke to Ms Smith on 4 October 2022 and used the document as a basis for his part of the conversation, he was communicating the document to Ms Smith, in turn attracting legal professional privilege.
Ultimately then the defendant's argument turns on whether or not the document had been communicated to Ms Smith.
I repeat what Dr Roach said:
"I used them as the basis for expressing my verbal opinion to Ms Smith."
This is what Dr Roach did not say:
I communicated my notes to Ms Smith; or
I read out my notes to Ms Smith; or
my notes stated (or described or summarised) my verbal opinion; or
I told Ms Smith what was in my notes.
The above possibilities are no more than speculation of what Dr Roach could have said. However, they are examples of what I consider a step further than what Dr Roach actually said in his affidavit.
Remembering that the onus is on the defendant to establish the privilege and noting that Dr Roach specifically prepared an affidavit on the issue, I do not think that the document is a communication. I do not see it going any further than a working note on which Dr Roach's discussion or opinion may have been based.
Emphasising what Barrett J said in Ryder there is no evidence to suggest that the document was "intended to be a means of communication with the litigant or lawyer."
I note that I was not requested to view the document and did not do so. However, I was informed that despite being in a doctor's handwriting, it was legible.
It is not necessary to consider the question of waiver, but in case I am wrong on my above conclusion, I would have concluded that privilege was waived. Returning to Lindgren J's judgment in Southcorp, his Honour stated at [21.4]:
"Ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents."
Again, it is important to note what Dr Roach did not say in his affidavit. He did not say that the document had played no part in the formation of his opinion. The defendant stressed that the report he ultimately produced was an answer to six specific questions, to be contrasted with the general discussion that had occurred in the telephone call on 4 October 2022.
However, there is nothing to say that the six questions did not cover material that was contained in the document. The material sent to Dr Roach prior to the telephone call was precisely the same material sent to him when he was instructed to prepare a report. There is an almost inevitable inference that the six questions encompassed, even if to a small degree, the contents of the document.
Accordingly, I make the following orders:
1. The plaintiff is granted access to and is permitted to inspect documents produced by Dr Vijay Roach in response to the plaintiff's subpoena to produce over which the defendant has claimed privilege.
2. The defendant is to pay the plaintiff's costs of this notice of motion.
3. By consent, orders 1 and 2 are stayed for 21 days from today.
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 November 2023