Lila Foxall (by her tutor Robert Foxall) v Kristy Carter

Background

1. In Foxall (by her tutor Foxall) v Carter [2023] NSWSC 747 ('the earlier decision'), I set out the background in these proceedings. For convenience, I will reproduce it here.
2. The defendant provided horse-riding lessons at a property located at Robinson Road in Mudgee, New South Wales.
3. The plaintiff, then aged nine years and eight months, participated in four horse-riding lessons with the defendant.
4. On 26 September 2017, during the fourth lesson, the plaintiff rode a horse named Smokey. She fell off the horse, suffering catastrophic injuries. The horse bolted when it was carrying the plaintiff along a stock route. It is the plaintiffs' case that she was inexperienced for the trail ride; the horse the defendant gave the plaintiff to ride was inappropriate for the plaintiff's level of riding experience and the defendant ought to be liable to the plaintiffs for negligence, breach of contract and breaches of Australian Consumer Law.
5. The plaintiff has served a report of Ms Karen Owens. Ms Owens has practical horse-riding experience, but is not an equine expert. The defendant served the report by Equine Consultant Steven Jeffrey in reply to Ms Owen's report.
6. The defendant has also served a report by an equine expert, Dr McLean dated 25 October 2022. Dr McLean's report is controversial. Dr McLean has prepared seven reports between 19 May 2018 and 25 October 2022. The defendant has claimed legal professional privilege over the first 6 reports to which the applicant is directed.

The law

1. Rule 1.9 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') governs the process by which an objection may be made. Questions about whether documents are privileged, and if so, whether privileged has been waived are determined by reference to the Evidence Act 1995 (NSW) and r 21.3 of the UCPR.
2. Rule 21.3 and 31.34 of the UCPR reads: 21.3 List of documents to be prepared (cf SCR Part 23, rule 3(5) and (6); DCR Part 22, rule 3(5) and (6)) (1) Party B must comply with an order for discovery by serving on party A a list of documents that deals with all of the documents (other than excluded documents) referred to in the order. (2) The list of documents - (a) must be divided into two parts - (i) Part 1 relating to documents in the possession of party B, and (ii) Part 2 relating to documents that are not, but that within the last 6 months prior to the commencement of the proceedings have been, in the possession of party B, and (b) must include a brief description (by reference to nature and date or period) of each document or group of documents and, in the case of a group, the number of documents in that group, and (c) must specify, against the description of each document or group in Part 2 of the list of documents, the person (if any) who party B believes to be in possession of the document or group of documents, and (d) must identify any document that is claimed to be a privileged document, and specify the circumstances under which the privilege is claimed to arise. (3) Party B must comply with the requirements of subrule (1) - (a) within 28 days after an order for discovery is made, or (b) within such other period (whether more or less than 28 days) as the order may specify. … 31.34 Supplementary reports by expert witness (cf SCR Part 36, rule 13C; DCR Part 28, rule 9C; LCR Part 23, rule 1D) (1) If an expert witness provides a supplementary report to the party by whom he or she has been engaged, neither the engaging party nor any other party having the same interest as the engaging party may use - (a) the supplementary report, or (b) any earlier report affected by the supplementary report, unless all of those reports have been served on all parties affected. (2) For the purposes of this rule, supplementary report, in relation to an earlier report provided by an expert witness, includes any report by the expert witness that indicates that he or she has changed his or her opinion on a material matter expressed in the earlier report.

Onus of Proof

1. It is common ground the defendant bears the onus of establishing the privilege claim over the earlier 6 reports, dated 18 June 2018, 23 April 2019, 21 September 2022, and 25 October 2022 (x 3), including the report described as his first report.
2. The parties referred to Hancock v Rinehart [2016] NSWSC 12 ('Hancock (Privilege)') and New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWCA 257 ('New Cap'). In New Cap, White J referred to: "[16] The relevant section in Div 1 of Pt 3.10 of the Evidence Act is s 119. It provides: 119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party." [17] The expressions "confidential communication" and "confidential document" are defined in s 117 as follows: "confidential communication means a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. confidential document means a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law."
3. At [18], his honour stated: "[18] Paragraph 119(b) is important. It has been held that common law legal professional privilege does not attach to an expert's own documents, prepared by him for the purpose of expressing an expert opinion in litigation but which were not communicated to the client or the lawyer of the client, and do not reveal communications between the expert and the client, or between the expert and the lawyer for the client (Interchase Corporations Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No. 1) [1999] 1 Qd R 141 at 150-151, 153, 162; Australian Securities and Investments Commission v Southcorp Limited (2003) 46 ACSR 438 at [21]). [19] This view is based upon the fact that: "Legal professional privilege is concerned with communications, either oral, written or recorded, and not with documents per se." (Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 529, 543, 552, 568, 580-581, 585)."
4. His honour continued at [29]-[30]: "[29] However, draft reports, and notes used in preparing a report, may stand at a different position, particularly where the expert has been retained by the party's solicitors and it is expected that the party's lawyers will advise on the contents of, and settle the form of, the report. There is nothing improper in such a course. It is not inconsistent with the expert's paramount duty being the duty to the Court and not to the client retaining him or her. [30] It will be a question of fact, to which the expert may be required to put his or her oath, as to whether any draft reports prepared and kept by him, and working notes prepared by him or his staff, were brought into existence for the dominant purpose of the plaintiffs being provided with professional legal services. If they were prepared for the dominant purpose of a draft report being submitted for advice or comment by the plaintiffs' lawyers, then they would be privileged under s 119. However, if they were brought into existence for the dominant purpose of the expert forming his or her opinions to be expressed in the final report, then it could be arguable that they were not made for the dominant purpose of the plaintiffs being provided with professional legal services relating to the proceedings."
5. In Hancock (Privilege), Brereton J stated at [5]-[7]: "[5] It was not in issue that Mrs Rinehart, as the person making the claim, bears the onus of proving the facts on which the claim for privilege is said to be founded, and that that involves establishing that the disputed documents comprised or contained confidential communications made for the dominant purpose of obtaining legal advice and/or conducting anticipated or pending litigation. [6] Moreover, Mrs Rinehart is not entitled to maintain against Bianca - as a beneficiary, and a fortiori as replacement trustee - a claim of privilege in respect of trust documents: Bianca as new trustee is as much entitled to them as her predecessor, Mrs Rinehart. Legal advice obtained by a trustee for guidance in the administration of the trust or the proper exercise of trust powers belongs to the trust, not to the trustee personally. On the other hand, advice obtained for the trustee's personal assistance, such as in resisting litigation brought against the trustee by a beneficiary, belongs to the trustee alone. Thus to make good her claim, Mrs Rinehart must establish not only that the disputed documents were privileged, but that the privilege was hers personally, and not that of the trustee of the trust. The issue for determination is whether Mrs Rinehart has done so. [7] To sustain a claim of privilege, the claimant must not merely assert it; but must prove the facts that establish that it is properly made. Thus a mere sworn assertion that the documents are privileged does not suffice, because it is an inadmissible assertion of law; the claimant must set out the facts from which the court can see that the assertion is rightly made, or in other words "expose… facts from which the [court] would have been able to make an informed decision as to whether the claim was supportable". The evidence must reveal the relevant characteristics of each document in respect of which privilege is claimed, and must do so by admissible direct evidence, not hearsay" [my emphasis].
6. There was no evidence from the defendants and solicitor to prove the facts that establish that the claim for legal professional privilege is properly made.

Plaintiff's submissions

1. If Dr McLean's first report in time is in fact a final report, r. 31.34 of the UCPR compels the service of all reports, or the abandonment of those reports.
2. Sections 56-60 of the Civil Procedure Act 2005 (NSW) compels the defendant to make this election now, and not at trial, because any delayed election will deprive the plaintiffs of the opportunity to meet this evidence at trial.
3. A delayed election will frustrate the conclave process and may promote an application for an adjournment to meet this new, or previously undisclosed expert opinion evidence.
4. Senior counsel for the plaintiff submitted that the defendant cannot and does not discharge this burden. Further, this issue raises whether the 6 documents are in fact draft reports. If they are not draft reports, the defendant's claim must fail.
5. At paragraph 13 of her submissions, the defendant characterises the 6 reports as "draft", because that is how the documents are referred to in a letter attaching to packet S-33.
6. Presumably it is the defendant's position that if these are draft reports, they must be privileged? The defendant also appears to assume that referring to the reports as draft is proof of the fact - it is not: Hancock (Privilege) at [7].
7. The defendant cannot establish the reports are draft reports as the defendant proposes, or at all. The defendant's privilege claim must fail.

Defendant's submissions

1. On 16 December 2022, the plaintiffs filed a subpoena to produce addressed to Dr McLean: Hunt 1 [29]. The subpoena sought a category of documents as follows: "…2. All draft and final copies of reports prepared for and on behalf of the defendant to the proceedings…".
2. Dr McLean has produced documents pursuant to the subpoena on a non-privileged basis. Dr McLean has also produced documents pursuant to the subpoena in relation to which the defendant claims privilege ('Packet S-33-34').
3. Dr McLean produced Packet S-33 under cover of a letter which identifies the documents produced and the basis for the claim of privilege with respect to each: Hunt 1, ann. R, p 77-78. The letter indicates that Packet S-33 contains 6 draft reports ('Draft Reports') and 2 tax invoices.
4. The defendant's solicitors wrote that they were instructed to make a claim for legal professional privilege over the following documents produced by Dr McLean: Category 2 Date Document type Description A. 18 June 2018 Document Draft Report B. 23 April 2019 Document Draft Report C. 21 September 2022 Document Draft Report D. 25 October 2022 Document Draft Report E. 25 October 2022 Document Draft Report F. 25 October 2022 Document Draft Report

Category 4 Date Document type Description G. 28 September 2022 Document Tax Invoice H. 28 October 2022 Document Tax Invoice

Waiver

1. Further, the plaintiffs assert waiver with respect to the 6 draft reports (Plaintiffs' submissions [9]). The assertion is unqualified, not made in the alternative or based on any contingency. The assertion is necessarily accompanied by an implied admission that privilege attached to Packet S-33, at least prior to service of the Dr McLean's Final Report.
2. Sections 122 and 126 of the Evidence Act concerns the question of waiver.
3. There are three threads to the waiver argument. 1. First, the defendant has waived privilege over the documents by producing the documents to the court and inviting the court to inspect them: Hancock (Privilege) at [26]. 2. Second, if it is found Dr McLean's first report in time was a final report, the defendant has waived privilege over the following 6 reports. 3. Third, if the first 6 reports are found to be drafts, although the defendant invites the Court to review the documents and to make its own assumptions about the extent to which the reports have influenced the last report in time (paragraph 19 of the defendant's submissions), White J identified limits to this approach: New Cap at [51]. Brereton J went further to find the process to be impermissible: Hancock (Privilege) at [34]. I prefer Brereton J's approach in Hancock (Privilege).
4. The plaintiffs assert that service of the Final Report was sufficient to waive privilege over the Draft Reports by reason of the operation of s 122 of the Evidence Act 1995: Plaintiffs submissions [9]. This is incorrect.
5. Service of an expert report in the course of litigation under the compulsion of law, that is, pursuant to Court orders for the filing or service of evidence, does not waive privilege. That is conduct not inconsistent with the maintenance of privilege, such that no waiver arises. Such is the effect of s 122(5)(a)(iii) of the Evidence Act 1995. It is not until a party tenders a report or reads an affidavit into evidence that privilege is waived. See: Akins v Abigroup Ltd (1998) 43 NSWLR 539, 551 (Mason P, Priestley JA and Rolfe AJA agreeing); Sevic v Roarty (1998) 44 NSWLR 287; The Bell Group Ltd v Westpac Banking Corporation (1998) 86 FCR 215, 224 (Foster, Lee and Nicholson JJ); Ingot Capital v Macquarie Equity [2008] NSWSC 25 [32] (Campbell JA); Australian Institute of Fitness Pty Limited v Australian Institute of Fitness (Vic/Tas) Pty Limited (No 2) [2015] NSWSC 994 [36]-[39], [43] (Sackar J).
6. The application of s 122 of the Evidence Act is clear, however even if the common law were to apply, the position would be the same: Akins v Abigroup Ltd (1998) 43 NSWLR 539; Sevic v Roarty (1998) 44 NSWLR 287; Waugh Asset Management Pty Ltd v Lynch [2010] NSWSC 197 [17] (McDougall J).

Resolution

1. The plaintiff's claim on waiver fails because the defendant has not yet tendered Dr McLean's Final Report into evidence. The defendant has not waived privilege over it or the draft reports. The argument in respect of waiver is not applicable until Dr McLean's report is put into evidence at trial.
2. However, the defendant has not relied upon any evidence to prove the facts that the defendant's claim is properly made. Hence, the defendant's claim for legal professional privilege over the draft reports of Dr McLean cannot be maintained. The defendant's notice of motion filed 13 April 2021 is dismissed.
3. The plaintiff is entitled to access to the draft reports and the material relied upon and referred to in the draft reports. Once the plaintiff has had access to these documents, she will make a decision as to whether she needs to obtain a report from an expert in the same field as Dr McLean.

Costs

1. Costs are discretionary. Costs normally follow the event. The defendant is to pay the plaintiff's costs.

THE COURT ORDERS THAT: 1. The defendant's notice of motion filed 13 April 2023 is dismissed. 2. The plaintiff is entitled to have access to the subpoenaed packets (33-34) immediately. 3. The defendant is to pay the plaintiff's costs. 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: 25 July 2023