Matthews v SPI Electricity Pty Ltd & Ors

Supreme Court of Victoria|2013-11-19|Before: Derham AsJ

PRACTICE AND PROCEDURE - Subpoenas to independent experts - Inspection of documents - Client legal privilege - Express waiver of privilege in expert reports by delivery- Documentary communications between solicitor and independent experts - Draft expert reports submitted to first defendant's solicitors for the provision of professional legal services relating to the current group proceeding - Whether waiver of privilege in consequence of delivery of expert's final reports - Inconsistency - Whether documents influence or underpin expert reports - ss 119, 122 and 126 of Evidence Act 2008 (Vic).

(a) summons dated 8 November 2013 relating to documents produced by GC Engineering Pty Ltd (GC Engineering) in response to a subpoena dated 24 October 2013. GC Engineering is the company through which SPI engaged the services of Professor Graham Clark, an independent expert (Clark Documents);

(b) summons dated 8 November 2013 relating to documents produced by aadiDefence Pty Ltd (aadiDefence) in response to a subpoena dated 8 October 2013. aadiDefence employs Dr Barter who has delivered 6 expert reports on which SPI relies (Barter Documents);

(c) summons issued on 8 November 2013 relating to documents produced by BMT WBM Pty Ltd (BMT) in response to a subpoena dated 8 October 2013 BMT employs Mr Vazey who has delivered 5 expert reports on which SPI relies (Vazey Documents).

3 These summonses are issued in, and during the trial of, group proceedings commenced under Part 4A of the Supreme Court Act 1986. The trial commenced on 4 March 2013 and is anticipated to continue until about May 2014. In the group proceedings, Mrs Matthews, as representative plaintiff, brings claims against SPI (and others) for damages for personal injuries, property damage and economic loss suffered as a result of the Kilmore East/Kinglake bushfire on Black Saturday, 7 February 2009 (the Kilmore bushfire). The plaintiff alleges, among other things, that the bushfire was caused by breaches of duty by SPI in the management, inspection and engineering of the Valley Span (as described below). SPI has brought a counterclaim by which it contends that others are responsible for the plaintiff's losses. The bushfire destroyed a number of towns, including Kinglake, destroying 1,242 properties and killing 119 people.

4 For the purposes of introducing expert evidence in answer to claims made in the proceeding,[1] SPI had a field test designed, installed and conducted on the 'Valley Span'. The Valley Span is a Single Wire Earth Return ("SWER") line between poles 38 and 39 of the SWER line (a part of the system known as the Pentadeen Spur SWER system) which was constructed in or about 1966. It was this conductor, or powerline, strung between poles 38 and 39, that is alleged to have failed and to have started the Kilmore bushfire.

5 The field test involved SPI stringing three test conductors between poles 38 and 39 of the Valley Span, about three metres below the original conductor, and measuring stresses generated on the test conductors near the conductor fitting where the failure occurred on the original conductor. Thus, the test was intended to replicate and measure the conditions that existed on the original conductor.

6 On 22 August 2012, SPI served an expert report of Mr Vazey. In that report, Mr Vazey described a field test he had designed and conducted on the three test conductors. He has since delivered 4 further supplementary reports. SPI's experts rely heavily on the results of the tests to suggest that the conductor failure could not have occurred by the mechanism alleged by the plaintiff (Aeolian vibration).

7 In Matthews v SPI Electricity Pty Ltd,[2] I set out at [31]-[55] the relevant principles in relation to ss 118, 119, 122(2) and 126 of the Evidence Act. Central to the issues in that decision was whether the communications or documents in question - over which there were claims for Privilege - were taken into account, or otherwise underpinned or influenced, the content of expert reports SPI chose to deploy to advance its own interests.

8 In the later decision of Matthews v SPI Electricity Pty Ltd & ors (No 7),[3] I adopted the same principles in determining a dispute as to claims for Privilege in respect of documents subpoenaed by SPI from an expert retained by the plaintiff.

9 In addition to the principles explained in those two earlier decisions, which the parties agreed were correct statements of the law so far as they went, I was referred to additional aspects of the cases that were particularly relevant to documents, and the surrounding facts, the subject of the subpoenas in this present application.

10 I was particularly referred to the decision in New Cap Reinsurance Corporation Ltd (In Liq) & 1 Or v Renaissance Reinsurance Ltd (New Cap),[4] where White J noted the following matters:

(a) Section 119 of the Evidence Act expressly applies both to confidential communications between the client and a third party, or between a lawyer acting for the client and a third party, for the dominant purpose of the client being provided with professional legal services relating to legal proceedings, and to the contents of a confidential document prepared with that dominant purpose, whether the document is delivered or not;[5] (Emphasis added) (at [20])

(b) Thus s 119(b) of the Evidence Act extends the privilege to confidential documents, whether communicated or not, provided they were brought into existence with the requisite dominant purpose. The question however is what that purpose is. If an expert prepares a draft report, or notes for the report, with the dominant purpose of a draft report (whether the precise draft then prepared by the expert or an intended later draft) being furnished for comment or advice by the lawyer, then it is privileged. If not, it is not; (at [34])

(c) Section 119 directs attention to the dominant purpose for which each confidential communication or confidential document comes into existence. The dominant purpose for which a final expert's report or final witness statement is brought into existence would presumably be for the purpose of being laid before the Court as the witness' evidence. Prima facie, it would not be privileged (Attorney-General (NT) v Maurice at 480). 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; (at [29])

(d) 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; (at [30])

(e) The issue may not be an easy one to determine. In all probability, an expert witness retained by a lawyer for a party will prepare a draft report with the intention (and purpose) that it will set out the evidence which he or she expects to give, but also with the intention and purpose of its being considered and commented on by the party's lawyers. If the latter purpose is dominant, the document so produced is privileged. If not, it is not privileged; (at [35]).

11 I was also taken to the decision in Roads Corporation v Love,[6] to which I referred in Matthews v SPI Electricity Pty Ltd & Ors,[7] where Vickery J held that privilege was waived over notes of a meeting involving several experts, the respondent and his legal representatives and a number of other documents, including, a communication recording statements or feedback made by the respondent directly to one of the experts. His Honour stated that:

However, I am compelled to the conclusion that this is a clear case where the respondent, by calling the relevant experts as witnesses in support of his cause, has acted in a way that is inconsistent with him objecting to the adducing of the evidence which he seeks to protect. Further it would be both unfair to the applicant, and contrary to the interests of justice, to insulate the relevant witnesses from a full examination of all of the information which they took into account and the various influences to which they were exposed in the preparation of their evidence.[8] (emphasis added)

12 It is relevant to note that the part of the quotation from Roads Corporation v Love that I have emphasised points to the importance of identifying a basis for the relevant communication or document containing information being taken into account by, or influencing, the expert.

13 Applied to this case, and in particular to the draft reports, and components of draft reports in the case of the Barter documents, these principles mean that that there must be an indication that the documents were used in the preparation of the final report in a way that could be said to influence the content of that document. Naturally, all draft reports may be said to influence the final report. They may show the process leading to the final report. But a mere draft would only be of relevance to SPI if it could be shown that it differed from the final report because the author was motivated by a desire simply to improve the plaintiffs' case, rather than having had a genuine change of opinion or further material affecting a change to some aspect of it.

14 The change of an opinion to suit the plaintiff's case as a result of influence from the plaintiff or her advisors would, of course, be entirely improper; but an expert is permitted, indeed to be encouraged, to change his or her mind, if a change of mind is warranted. Experts should not be inhibited by fear of exposure of a draft from changing their minds when such change is warranted by the material then before the expert.[9]

The question is not merely whether it could be said that the privileged materials were used in such a way that they could be said to influence the content of the report, but whether it could be said that they influenced the content of the report in such a way that the use or service of the report would be inconsistent with maintaining the privilege in those materials, such as, where it would be unfair for the party to rely on the report without disclosure of those materials. Where an expert's report is submitted to a party's legal advisers so as to be put into a form which will ensure that it is admissible, it can be said that the privileged communications between the expert and the lawyers have influenced the content of the report, in the sense of its form, although not in the sense of the formulation of the substantive opinions expressed by the expert. Likewise, privileged communications between an expert and the party's lawyers whereby material information is provided to the expert in the form of assumptions or documents may well influence the content of the report. However, an expert's report is required to state what material and assumptions are relied on. Use of a final report, which refers to such materials and assumptions, is not inconsistent with maintaining confidentiality in the communications which produced the final product.

16 I adopt that reasoning for the purposes of this decision.

17 The parties agreed that for the purpose of resolving the dispute I should inspect the documents in contention, as I did in both earlier cases concerning claims for Privilege.

18 Mr Armstrong of counsel, who appeared for the plaintiff, submitted that having regard particularly to the observations of White J in New Cap, referred to above, I should be guided by the following precepts -

(a) SPI bears the onus of satisfying the Court that the documents are subject to privilege;

(b) If upon an inspection of the draft reports and working papers it appears that the purpose of their preparation by the expert reflects the evolution of the expert's own work with a view to ultimately shaping the opinion that the expert provides in the final report tendered in the trial of the action, then it's not privileged;

(c) Where the expert sends a draft of a report to SPI's solicitors for the purpose of having the solicitors make sure that it is in a properly admissible form and if that is the only role that the solicitors have played, then the privilege is not lost; and

(d) Where the solicitors or anybody else has provided comment as to the contents of the report, then it may become a communication of substantive kind that influences the final opinion of the expert, then privilege will be waived and fairness requires that it be available for inspection in anticipation of any examination of the expert at the trial.

19 On 24 October 2013 the Court, at the request of the plaintiff, issued a subpoena to GC Engineering. GC Engineering is the company through which SPI engaged the services of Professor Graham Clark, an independent expert. He was engaged by SPI to provide confidential independent expert services to assist in the conduct of the present proceeding. SPI has not filed or served any expert reports of Professor Clark in the proceeding and does not intend to call him to give evidence.

20 On about 6 November 2013, GC Engineering produced six hard copy documents to the Prothonotary in response to the subpoena. On 24 October 2013, Justice J. Forrest ordered that SPI have liberty to inspect and copy those documents and to file and serve any application, together with any affidavit in support, objecting to or restricting any other party's inspection of any of those documents.

21 By affidavit sworn on 7 November 2013, Shane Michael Murphy made an affidavit in support of SPI's application to restrict all parties to the proceeding from having access to three particular documents included in those produced by GC Engineering, as follows:

(a) an email from Ruth Overington, Senior Associate of Herbert Smith Freehills (HSF), the solicitors acting for SPI, to Professor Clark dated 22 December 2011 with the subject "Re: Kilmore" and earlier emails in a chain, or thread, comprising two pages;

(b) an email from Ruth Overington to Professor Clark dated 11 January 2012 with the subject: "Re: Tomorrow" and a later email in the chain or thread of one page; and

(c) a copy of a draft 'Scope - Monitoring of Steel Conductor Spans' with Professor Clark's handwritten annotations, comprising 11 pages.

22 Objection is made to the inspection of the three specific documents on the grounds that they are the subject of Privilege.

23 Mr Murphy has reviewed each of the three documents individually and on the basis of his review has concluded that:

(a) the emails are confidential communications that were made for the dominant purpose of SPI being provided with professional legal services relating to the present proceedings; and

(b) the draft 'Scope - Monitoring of Steel Conductor Spans' is a copy of three documents, each of which has previously been disclosed to the parties in the proceeding,[11] but without the annotations that appear on the document in question made by Professor Clark. That document (with its annotations) was made for the dominant purpose of SPI being provided with professional legal services relating to the present proceedings.

24 The three other documents produced by GC Engineering have been given to the solicitors for the plaintiff without objection, and were provided to me as providing a partial basis for there to have been a waiver of privilege in respect of the documents the subject of the claim.

25 The Subpoena to GC Engineering sought the production of documents identified by reference points, as follows:

(a) the project proposal which you describe in the 'earlier version I was shown' in your letter to Ruth Overington dated 21 December 2011;

(b) all communications and documents relating to the conversations and meetings between various representatives of SPI, HSF and Mr Vazey of BMT, another expert engaged by SPI, between 10 and 13 January 2012 concerning the field test conducted by SPI and by Mr Vazey on the Pentadeen Spur in Kilmore East, Victoria (Project); and

(c) all other communications and documents concerning the Project or its development.

26 Mr Armstrong, counsel for the plaintiff, referred to evidence given by:

(d) Mr Vazey at the trial on 6 November 2013; and

(e) Ms Overington at the trial on 11 November 2013.

27 It appears from this evidence that there was a teleconference in which Mr Vazey, Mr Clark and Mr Barter participated on 11 January 2012. Then, on 12 January 2012, there was a site visit at pole 39 of the Valley Span followed by a meeting at HSF's offices in Melbourne. Mr Clark was present at the site visit but not the HSF meeting.

28 Mr Vazey in an email to a colleague on 13 January 2012 summarised the exchanges in which he was involved on 12 January as reflecting an "overwhelming consensus [that] aeolian vibrations are not the problem at all and that fatigue is driven by wind gusts", and that "Consequently I am being hassled to find measurements of wind speed better than 1Hz. I found this most frustrating as a 1km cable in a field is likely to provide a very 'Averaged' response to gusty winds."

29 The plaintiff also referred to the evidence Mr Vazey gave on 6 November 2013 in which he clarified that the consensus he referred to in that email was derived from discussions during the site visit - namely the visit which Mr Clark attended.[12] Mr Vazey said he did not have a clear recollection of the course of discussions on 12 January 2012 at the site.[13]

(a) communications to and from Mr Clark touching upon his role during the January 2012 meetings are likely to shed light on the discussions which, it was contended, plainly influenced the development of Mr Vazey's field test set-up;

(b) in light of Mr Vazey's evidence that his own recollection was not reliable, fairness required that Mr Clark's role and records be exposed;

(c) accordingly, any privilege in respect of those records was waived when Mr Vazey was called by SPI to give evidence and, subsequently, when his expert reports were tendered; and

(d) accordingly, the Clark documents should be produced.

31 Mr Quinn, who appeared with Dr Parkinson, for SPI, submitted that:

(a) no conduct of Mr Vazey could, or did, waive the privilege in the documents produced by Professor Clark;

(b) there was no basis to suppose that Professor Clark's documents influenced or underpinned Mr Vazey's field tests or resultant reports;

(c) when I would come to look at the documents there will be no reason to infer that the documents have informed in any way Mr Vazey's reports, nor do they evidence in any way what occurred at any site visit, teleconference or subsequent or preceding discussion between solicitors and experts in the nature of that what was referred to in the evidence by Ms Overington or Mr Vazey in the transcript that has been provided. That is, there is no link between the evidence given and the substance of the documents.

32 I have inspected the three documents in contention. Only one is potentially capable of providing an influence on the setup of the infrastructure for carrying out the Valley Span tests on the three test conductors. It is the copy of a draft 'Scope - Monitoring of Steel Conductor Spans' with Professor Clark's handwritten annotations, comprising 11 pages (the Scope document). I noted in my first judgement in Matthews v SPI Electricity Pty Ltd & Ors[14] the limitations on an inspection by a non-expert of expert technical materials. I am again conscious of the difficulty facing a non-expert in considering technical material and whether it underpinned or influenced the testing regime disclosed in Mr Vazey's reports, in particular. As White J observed in New Cap:

There are limits to which this is a useful exercise. It would be impossible, as a matter of practice, and inappropriate, as a matter of principle, for a judge to approach that question [whether the documents influenced the content of the Report] in the same way as a party might wish to do so if preparing a cross-examination of the expert. [15]

33 The Scope document is, as I have said, a copy, with annotations, of a discovered document which, according to the evidence, has previously been disclosed to the parties in the proceeding in three versions said to be relevant to the issues in the proceeding.[16]. The annotations made by Professor Clark are very difficult to read, in some cases impossible. That which can be read tends to indicate comments that relate to the setup of the test conductors, in particular in the section headed "5.Site Erection" and "Appendix 2 - Detail of Strain Gauge link".

34 The Scope document was sent to Ms Overington of HSF under cover of an email dated 22 December 2011, which is included in the email chain referred to in paragraph 21 (a) above. That fact, together with the evidence in the affidavit of Mr Murphy, establishes to my satisfaction that it is prima facie subject to Privilege.

35 The question then is whether the meeting at Pole 39 on 12 January 2012, or the comments themselves on the Scope document taken with the delivery of Mr Vazey's reports for use in the proceedings, gives rise to inconsistency between the maintenance of the confidentiality or Privilege and that conduct (the meeting or the reliance on Mr Vazey's reports)?

36 The evidence is that the test conductors were strung, rigged and assembled by SPI.[17] Precisely when this was done is not clear. But the transcript of the cross-examination of Mr Vazey on 6 November 2013 indicates that at the time he inspected the site of Pole 39 on 12 January 2012 the test conductors had not been installed.[18] Thus, the comments sent by Professor Clark to Ms Overington in December 2011 preceded the setting up of the test conductors. Hypothetically, Professor Clark's comments could have influenced the set up of the test conductors. If that were so then that is an influence on the infrastructure on which the field test has been undertaken.

37 My examination of the document, however, does not reveal whether that is possible or not. So much of the comments as I can read do not appear to be of a nature likely to have influenced the set up. Indeed, the comments are so limited that without oral supplement they do not seem to be useful by themselves.

38 Equally important to the question of waiver under s 122 is whether there is any linkage between the Scope document and the meeting on 12 January 2012 at Pole 39 the subject of the evidence given by Mr Vazey and Ms Overington? Apart from the chronology, there is nothing in the Scope document, or in the other documents subpoenaed and not the subject of a Privilege claim, to make that link. There is no evidence that the Scope document was ever seen by Mr Vazey or discussed with him. There is therefore no basis to infer, let alone conclude, that it had, directly or indirectly, any influence or in any way underpinned his work or reports.

39 There is, however, one exception. There is a linkage between the meeting on 12 January 2012 at Pole 39 and the email dated 11 January 2012 from Ms Overington to Professor Clark entitled "Re: Tomorrow". The link is obvious from the chronology and the title of the email. My inspection of it confirms that the evidence given by Mr Vazey and Ms Overington on 6 and 11 November 2013, respectively, is inconsistent with the maintenance of privilege over that email. For what it is worth, and that is very little, it should be available for inspection by the plaintiff.

40 It is otherwise my view that there has been no waiver of Privilege in the Scope document nor in the other email referred to.

41 At the request of the plaintiff the Court issued a subpoena dated 8 October 2013 to aadiDefence through which company SPI had engaged Dr Simon Barter, an independent expert who is the author of a number of reports intended to be introduced into evidence and that have been delivered by SPI pursuant to orders of the Court.

42 On or about 25 October 2013, aadiDefence produced approximately 13,000 documents to the Prothonotary in response to the subpoena. In anticipation, His Honour Justice J Forrest ordered on 9 October 2013 that SPI have liberty to inspect and copy the subpoena materials prior to the other parties having any inspection, and file and serve any application, together with any affidavit in support, objecting to or restricting any other party's inspection of any of the documents produced, identifying the grounds of objection.

43 The summons issued by SPI seeks to restrict the plaintiff from inspecting about 1,239 of the documents on several discrete grounds, as follows:

(a) Category 1 - confidential documents which are, or may, reveal the contents of draft versions of joint reports prepared by the experts in conclaves 1, 3 and 4;

(b) Category 2 - that they are confidential documents the subject of client legal privilege comprising communications relating only to administrative or logistical matters and which are also not relevant to any fact in issue in the proceeding;

(c) Category 3 - that the documents are confidential and the subject of client legal privilege because they comprise informal briefings, queries, responses, legal advice and other communications passing between HSF and aadiDefence and, further, which do not relate to the content of any expert report prepared by Dr Barter and filed in the proceeding; and

(d) Category 4 - documents and communications that are the subject of client legal privilege comprising draft versions or working documents relating to draft versions of the experts' reports prepared by Dr Barter and filed in the proceeding.

44 The plaintiff does not press for inspection of Categories 1, 2 and 3 at this stage. In relation to Category 2, I was told that a separate issue has recently arisen in the trial regarding information exchanges between experts. The plaintiff is considering evidence recently given in this regard but, without prejudice to her rights in that respect, does not press for Category 2 documents at this time. Similarly, the plaintiff does not press for Category 3 documents at this time, again without prejudice to any future application in relation to documents falling within this description. Thus it is only Category 4 documents that are in dispute.

45 In support of the application, Amelia Anne Edwards swore an affidavit dated 7 November 2013 deposing that, with the exception of the Category 1 documents, she has inspected each of the documents the subject of objection to inspection individually.

46 Ms Edwards in her schedule identifies documents falling within Category 4 by the comment "Draft Report" or "Working Document". Documents in this category include copies of draft reports, working documents relating to draft reports and correspondence attaching or referring to the content of draft reports. They include:

(a) draft versions of the expert reports of Dr Barter filed in the proceeding;

(b) working documents created by Dr Barter in preparing draft versions of the expert reports of Dr Barter filed in the proceeding;

(c) email correspondence between Dr Barter and HSF relating to draft versions or the content of draft versions of expert reports of Dr Barter filed in the proceeding; and

(d) internal email correspondence between parties at aadiDefence relating to draft versions or the content of draft versions of the expert reports of Dr Barter filed in the proceedings.

47 Ms Edwards deposes that where it was unclear from an inspection of the particular document falling within Category 4 that it was a draft or a final version of a report prepared by Dr Barter, and the final version of that report had been filed and served as an expert report in the proceeding, she erred on the side of caution and categorised the document as a draft report.[19]

48 Ms Edwards also deposed that the Category 4 documents are confidential communications that were made, or confidential documents that were prepared, for the dominant purpose of SPI being provided with professional legal services relating to the present proceedings and do not fall within the scope of the waiver referred to in my earlier decisions.

49 The plaintiff submitted that in respect of Category 4 the claim for privilege is misconceived as the documents in this category record the influences on and evolution of the report(s) ultimately tendered in the trial. They are precisely the kind of material which the authorities show will lose privilege at least upon tender of the relevant expert's report: see for instance Roads Corporation v Love [2010] VSC 253 at [23]-[25], citing Temwell Pty Ltd v DKGR Holdings Pty Ltd.[20] The reason for the imputed waiver of Privilege is that:

[I]t would be unfair to the [plaintiff], and contrary to the interests of justice, to insulate the relevant witness from a full examination of all of the information which they took into account and the various influences to which they were exposed in the preparation of their evidence.

(a) in relation to the documents described as working documents related to draft versions of the expert reports of Mr Barter, when these are inspected it will be seen that that they are not independent working documents which reflect the mindset or the internal thought processes of Mr Barter. They are pieces of draft reports, in effect an odd diagram or a part of the report that becomes part of a draft and that is why they should be treated as in the same category as drafts;

(b) put another way, the point about the working documents is that they are components of a draft report that are generated internally by Dr Barter and then compiled in the report and provided to HSF for the purposes of it advising SPI, and are thus also are the subject of the privilege. Although the document is a working document in general parlance, the reality is, it's part of a draft; and

(c) SPI couldn't possibly lose privilege because the expert has elected to work in this way, a perfectly logical way. Although they may be described as "working documents", they are properly characterised as parts of drafts, regardless of whether or not they are communicated to the solicitors ultimately in that form.

51 The evidence of Ms Edwards of the privileged purpose for the production of the draft reports and working documents, is very general evidence apparently based on an inspection of the documents. It would have been preferable that Dr Barter swore to the status of the documents, as White J referred in New Cap at [30] (see paragraph 10 (d) above). It was, however, common ground that the experts were in conclave during the week and are to commence giving evidence concurrently on Monday 18 November 2013.

52 It seems to me that given that the parties have agreed that I should inspect the draft reports and satisfy myself -

(a) as to the relationship between them and the final reports; and

(b) that there were no aspects of the draft reports or the working documents that showed outside influence on the final report; and

(c) that the contention that the working documents were merely earlier components of the final reports is correct,

has meant that the general nature of the evidence that the documents were produced for a privileged purpose is in my view sufficient in the present circumstances.

53 I was given folders of documents that included all of the Barter documents in dispute. The documents in dispute are, for the present, limited to the documents in the following table:

1 (42); 2 (177); 3 (178); 4 (202); 5 (203); 6 (204); 7 (205); 8 (206); 9 (207); 12 (915); 13 (916); 14 (918); 15 (963); 16 (964); 20 (976); 21 (977); 22 (978); and continuing into next volume (3 of 3) ...

Draft reports (including comments on same) that don't underpin any final report.

Continued from previous volume (2 of 3)... 26 (982); 27 (983); 28 (984); 30 (986); 31 (987); 32 (988); 33 (989); 34 (990); 36 (993); 37 (994); 38 (995); 39 (996).

Draft reports (including comments on same) that don't underpin any final report.

Privileged and confidential comments on Hawes report.

17 (970); 18 (971); 19 (972); 23 (979); 24 (980); 25 (981); 29 (985); 35 (991); 40 (997); 41 (999).

Working documents that don't underpin the final report.

54 These documents are set out with descriptions in the table in Schedule 1 to these reasons. I have examined each document as well as a late submission received that provides a linkage between the working documents and the draft reports.

55 In reaching a decision in respect of each of the Barter documents in Schedule 1, I have applied the reasoning outlined under the heading 'applicable law' above. In doing so I note that the observations made by Ryan J in Temwell Pty Ltd v DKGR Holdings Pty Ltd,[21] which were relied on by Vickery J in Roads Corporation v Love, were made without there having been any reliance on s119(b) and the reasoning, which I accept, of White J in New Cap to which I have referred. In particular, that the draft reports and working documents were prepared 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 plaintiff's lawyers, then they would be privileged under s 119 (b), whether they were delivered or not. There has been no challenge to the evidence of Ms Edwards as to the dominant purpose for which the drafts and documents were produced.

56 I am satisfied that there were no aspects of the draft reports or the working documents that are components of the final reports, that showed outside or improper influence on the final report. I have adopted this course because it seems to me that the correct approach in the circumstances of this case is not to determine merely whether the draft reports could be said to influence the content of the final report, because by the mere fact that they are drafts they must have that effect. But whether it could be said that the drafts influenced the content of the final report in such a way that the use of that final report would be inconsistent with maintaining the privilege in the drafts, so that it would be unfair for the party to rely on the report without disclosure of the drafts.

57 So far as the draft reports that were submitted to HSF are concerned, it is readily apparent that this was done so as to put the report into a form which will ensure that it is presentable and admissible. The privileged communications between Dr Bartter and HSF have influenced the content of the report only in the sense of its form and not in the sense of the formulation of the substantive opinions expressed.

58 I note in relation to each document in Schedule 1 my decision whether the privilege applies.

59 In relation to the draft reports, I note that they include tracked versions containing corrections to the form of the reports, comprising correcting typographical errors, punctuation, corrections to the forms of words used, and capitalising defined terms. Some of these corrections are evidently made by HSF. Others appear to be internal to aadiDefence. In no case was there evidence of a change by HSF that went to the substance of the report so as to show that there was any improper influence on the opinions being expressed

60 The working documents are mostly documents that, by reference to the table supplied by HSF (set out in Schedule 2 to these reasons), were able to be followed through to a final report so as to show that the document was a component of the report and produced for the purpose of that report being submitted to HSF for the dominant purpose of SPI being provided with professional legal services relating to the present proceedings and do not fall within the scope of the waiver referred to in my earlier decisions (as Ms Edwards evidence establishes). Even though the table supplied by HSF referred to these working documents as containing material that was either tracked through to a particular report, or was "understood" to have been put together for the purpose of a draft report, I have verified by reference to the content of the working document in comparison with the final report referred to in the Table that, in all but a few minor cases, the working document is no more than a component of a final report.

61 The "minor cases" are 3 working documents that are "understood" to have been prepared for the purpose of inclusion in reports that ultimately were not. I am unable to confirm from an analysis of the Reports as finally delivered whether these 3 documents were anything other than the experts' working documents, as I have been able to do with all of the other documents. These I have marked and highlighted in Schedule 1 as "Privilege waived". It may be that these documents were produced in privileged circumstances. But on the face of them, they are merely working documents of Dr Barter that lose their privileged status on the filing of the final report.

62 The third summons relates to approximately 209 documents produced by BMT. On or about 8 October 2013 the Court issued a subpoena at the request of the plaintiff to BMT, which was the company through which SPI engaged Mr John Vazey as an independent expert.

63 On about 18 October 2013, BMT produced to the Prothonotary two 4-terrabyte hard drives of documents in response.

64 As with the other summonses, his Honour Justice J Forrest ordered that SPI had liberty to inspect and copy these documents before the other parties had the opportunity to inspect them and was required to file and serve any application, together with supporting affidavit in support, objecting to or restricting any other party's inspection of any of the documents, identifying the grounds of objection.

65 This SPI duly has done and in support of the application another affidavit of Shane Michael Murphy has been sworn. The bases of the objections to inspection by any other party to the proceeding of the documents produced by BMT are -

(a) that they may reveal the content of a draft conclave report; or

(b) they are confidential and the subject of client legal privilege and do not fall within the scope of the waiver to which I referred in my earlier decisions.

66 Mr Murphy deposes that he has reviewed all of the documents the subject of objection individually except -

(a) some of the documents and correspondence which are (or may reveal the content of) draft conclave reports. He did not review the individual documents in this category in cases where he was able to form a view about the likely contents of the document from its file path and title; and

(b) privileged correspondence passing between BMT and its solicitors.

67 As with the Barter Documents, there were a number of categories of documents identified by Mr Murphy. For the time being there is no dispute about any of the categories other than drafts of Mr Vazey's expert reports and other communications of a like nature

Draft reports and other communications of a like nature

68 This category of documents comprise confidential drafts of Mr Vazey's reports and communications with Mr Vazey of a like nature made for the dominant purpose of SPI being provided with professional legal services relating to the proceedings. Mr Murphy has reviewed these documents and deposes that:

(a) the documents do not appear to disclose matters which may have influenced or underpinned Mr Vazey's reports (beyond matters contained in Mr Vazey's reports that have been filed and served in the proceedings); and

(b) disclosure of these documents would not appear to be reasonably necessary to afford a proper understanding of Mr Vazey's reports that have been filed and served in the proceeding.

69 Each of the documents in this category is identified in the schedule to his affidavit by the comment "Draft Reports and other Communications of a like nature", or a variant thereof. I was given folders of documents that included all of the BMT documents in dispute. The documents in dispute are, for the present, limited to the documents in the following table:

1 (2); 2 (13); 3 (14); 4 (15); 5 (16); 6 (43); 7 (83); 8 (84); 9 (85); 10 (91); 11 (97); 12 (98); 13 (99).

Draft reports (including comments on same) that don't underpin any final report.

70 These documents are set out with descriptions in the table in Schedule 1 to these reasons. I note in relation to each document in the Schedule my decision whether the Privilege applies.

71 SPI submitted, in substance, that the draft reports, having been prepared for the dominant purpose of SPI being provided with professional legal services relating to the proceedings (as deposed to by Mr Murphy),[22] were privileged under s 119(b) of the Evidence Act. As noted by White J in New Cap, s 119(b) extends the privilege to confidential documents, whether communicated or not, provided they were brought into existence with the requisite dominant purpose. If an expert prepares a draft report, or notes for the report, with the dominant purpose of a draft report (whether the precise draft then prepared by the expert or an intended later draft) being furnished for comment or advice by the lawyer, then it is privileged. If not, it is not.

72 In reaching a decision in respect of each of the Vazey documents in Schedule 1, I have applied the same reasoning as I adopted in relation to the Barter documents.

73 The documents in dispute are drafts of reports delivered and email exchanges between Mr Vazey and HSF. In the light of the evidence of Mr Murphy, and the absence of any challenge to that evidence, and after myself reviewing the documents, I have concluded that privilege continues to subsist in all of them. I have marked each document listed in Schedule 1 accordingly.

Objection documents produced by aadiDefence Pty Ltd (Dr Simon Barter)