6 Ms Conoulty is the expert retained by the Fifth Respondent. The Expert Report of Ms Conoulty has been filed and served upon the parties, including the Applicants.
7 The description of the documents for which privilege has been claimed has been brief. But there was no cross-examination of Ms Chylek on her Affidavit, as there could have been: National Crime Authority v S (1991) 29 FCR 203 at 211 per Lockhart J.
8 In ASIC v Southcorp Ltd [2003] FCA 804 at [21], 46 ACSR 438 at 441-2 Lindgren J helpfully formulated the principles to be applied in a case such as the present. In particular, His Honour there formulated two of those principles as being:
(3) Documents generated unilaterally by the expert witness, such as working notes, field notes, 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: cf Interchase [Corp Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1) [1999] 1 Qd R 141] at 161-2 per Thomas J.
(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…
9 For the purposes of resolving the present claims for privilege, an inference may be drawn that the "handwritten annotations" of Ms Chylek most probably contain observations in respect to the email or the draft expert report then before her. The onus upon the Fifth Respondent of establishing privilege, albeit on minimal material, has been made out. Those handwritten annotations it is thus considered are privileged, as is Document 2, the email from Ms Chylek to the expert.
10 The documents, it may generally be accepted, were confidential.
11 And it may be accepted that Documents 3 and 5 caused Ms Chylek to give legal advice. Such is the evidence given in her Affidavit sworn on 25 July 2008. But there is no evidence that the disclosure of those two documents would themselves disclose any legal advice given.
12 Documents 9 and 11 are draft expert reports. The draft expert reports, however, are not considered to be privileged and the onus imposed upon the Fifth Respondent to establish the claim has not been discharged. A draft report from an expert, together with a communication from an expert to a solicitor, "do not attract privilege because they are not in the nature of, and would not expose, communications" per Lindgren J. Nor, if it be relevant, is there any evidence that the draft reports were given for the purpose of obtaining the input of the solicitors: New Cap Reinsurance Corp Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258. That was a case arising under s 119 of the Evidence Act 1995 (Cth) and not the common law. All that is known of the draft reports in the present proceeding is simply that, namely they are "draft reports". Nothing is known as to the reasons why such drafts were prepared and nothing is known as to whether the disclosure of a draft report prepared by the independent expert would disclose anything other than the contents of a draft of a report which was subsequently filed and served. Indeed, Senior Counsel for the Fifth Respondent accepted that privilege would not attach to a document if all that was known was that it was a "Draft Report" which was forwarded in confidence.
13 The inadequacy in the description of the documents is exposed by the description of Document 12, being correspondence to and from the expert and Ms Chylek. To the extent that the correspondence is from Ms Chylek, the claim for privilege is upheld; to the extent that the communication is from the expert to Ms Chylek, the claim is rejected.
14 It should be noted that the potential inadequacy in the description of the documents for which privilege was to be claimed had previously been raised with Counsel appearing for the Fifth Respondent. No further affidavit was filed. To the extent that the Affidavit of Ms Chylek falls short in its description of the documents over which privilege is claimed, that presumably was a forensic choice deliberately made by those advising the Fifth Respondent.
15 The Fifth Respondent urged a course upon the Court that it should inspect the documents itself for the purpose of resolving the claim. That course has not been considered necessary and no such inspection has thus taken place.
16 The claim for privilege is thus upheld with respect to:
· Document 2, being the email from Ms Chylek to the expert;
· Document 5, but only to the extent of the handwritten annotations of Ms Chylek;
· Document 9, but only to the extent of the handwritten annotations of Ms Chylek;
· Document 10, being the email from Ms Chylek to Ms Conoulty;
· Document 11, to the extent of the handwritten annotations by Mr Simpson and Ms Chylek; and
· Document 12, to the extent of the email correspondence from Ms Chylek.
17 The claim for privilege in respect to the balance of those documents is rejected.
18 All parties seek a quick resolution of the issues to be decided and more considered and comprehensive reasons are not sought.
19 It should be noted that one revision to the ex tempore reasons as delivered has been to extend the claim for privilege to Document 10. It is not understood that the parties dispute the ability to make that revision.