110 The primary judge stated at [70] to [73]:
70 There are many difficulties with the expert report of Ms Chen, which individually and cumulatively lead me to the conclusion that I should reject it in its entirety. I am left in a state of uncertainty as to who was responsible for the drafting of which portions of her report. It would appear that most of the report was, at least initially, the product of drafting by the lawyers for the applicant, albeit in reliance upon some material of a non-specific nature that Ms Chen provided to the lawyers. The fact that Ms Chen adopted the drafting of others as her opinion does not address the more fundamental issue that her engagement obliged her to act as an independent expert witness conformably with the requirements of the Expert Evidence Practice Note and the Harmonised Expert Witness Code of Conduct. Clause 3.2 of the Practice Note advises that:
A party or legal representative should be cautious not to have inappropriate communications when retaining or instructing an independent expert, or assisting an independent expert in the preparation of his or her evidence.
71 That statement of good practice was not complied with in this case. It may be perfectly appropriate, such as in cases where an expert is unfamiliar with the form and content requirements for an expert opinion report, for that document to be settled in an admissible form by someone else, but then in my opinion, only if that fact is disclosed in the report. In this case, that fact was not only withheld but was only ascertained during the course of cross-examination of Ms Chen, which in my opinion, was grossly unsatisfactory.
72 The Code of Conduct at clause 2 states the obvious proposition that an expert witness "is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the Court impartially on matters relevant to the area of expertise of the witness." In this case, that requirement of impartiality was substantially undermined by the failure to disclose the methodology of preparation of the expert report.
73 In the last paragraph of the signed witness statement, Ms Chen declared that she had "made all the enquiries which I believe are desirable and appropriate and no matters of significance which I regard as relevant here, to my knowledge, have been withheld from the Court." I cannot accept that Ms Chen failed to appreciate that the fact that her report was drafted, not by her but by the lawyers for the applicant, was not a matter of significance. It plainly was.
111 Two observations should be made about the reasoning at [70]. First, the primary judge concluded at [70] that "most of the report was, at least initially, the product of drafting by the lawyers for the applicant, albeit in reliance upon some material of a non-specific nature that Ms Chen provided to the lawyers". The material which Ms Chen provided to Corrs on 22 February 2022 included Ms Chen's Bio and the Script which set out ChinaDirect's three stage process for its core business of "product sourcing". The majority of the expert report was factual in nature, not comprising expert opinion evidence. The majority of the expert report described Ms Chen's experience and described ChinaDirect's business and the "three stage process" used in that business. The material provided by Ms Chen to Corrs was not "non-specific". The primary judge's reasons suggest that the primary judge was unaware of the similarities between what Ms Chen had provided to Corrs, in particular the Script, and the expert report. Paragraphs 1 to 55 of the expert report were plainly drafted by reference to the documents which Ms Chen had provided to Corrs. The evidence given by Ms Chen in cross-examination indicated that Corrs' drafts of the expert report were discussed in video conferences.
112 Secondly, whilst it is true that Ms Chen was retained as an independent expert, it is also true that the majority of her report was factual in nature, describing ChinaDirect's business and processes. The primary judge's reasoning for rejecting the entirety of Ms Chen's evidence focussed on the last five paragraphs of the report, in particular paragraph 58, which might be regarded as providing expert opinion evidence. There was no separate explanation given for why the factual material (in paragraphs 1 to 55) was rejected. The drafting of written evidence of a factual nature by a solicitor from a statement or other material provided by a witness is far from unusual.
113 At [74], the primary judge stated:
Regrettably, I also find that the conduct engaged in preparing and delivering the report of Ms Chen was misleading. The letter of instruction of 7 March 2022 conveys the representation that Ms Chen was engaged to prospectively consider each of the two questions the subject of her instruction. Contrary to that representation, a draft of her expert report had been prepared by Corrs no later than 25 February 2022. It was wrong in my opinion to state in the letter of 7 March 2022 that Ms Chen was instructed to prepare a report in response to the two questions posed in that letter, when the author was plainly aware not only of what the answers would be, but also, as to the form of the opinion and the fact that its expression was the product of drafting by Corrs. The letter of 7 March 2022 conveys the false representation that Ms Chen, as the independent expert, would upon receipt of the instruction set about the task of preparing her report. The failure to disclose those facts to the solicitor for the respondents and ultimately to the Court is most concerning, as it strikes at the very heart of the paramount and overriding duty that an independent expert has to assist the court impartially on matters relevant to the area of expertise of the witness, as stated at clause 2 of the Code of Conduct.
114 The letter of instruction of 7 March 2022 did not convey the representation that Ms Chen had been "engaged to prospectively consider each of the two questions the subject of her instruction". The reason for the primary judge's contrary conclusion in this respect is not stated. The letter of 7 March 2022 is unlikely to have been understood as conveying such a false representation, particularly in circumstances where the letter was read (as it was intended to be) as an annexure to Ms Chen's witness statement, to which would also be annexed the letter of 21 February 2022 and the expert report. Less still did the letter of 7 March 2022 contain "the false representation that Ms Chen, as the independent expert, would upon receipt of the instruction set about the task of preparing her report". For the reasons we have given, no such representation was conveyed.
115 At [75] the primary judge stated:
The solicitor for the respondents made two requests for the provision of "all documents regarding any communications between your firm and Ms Chen". Each request was denied, with the express representation that all documents evidencing or disclosing instructions given by Corrs to Ms Chen "have already been produced" as attachments to her witness statement of 8 March 2022. That was false in that the email correspondence that was exchanged between Corrs and Ms Chen commencing on 22 February 2022 was concerned with instructions as to who would draft the report and what it would be based upon.
116 This paragraph must be read with J[56] to [59]:
56 On 11 April 2022, the solicitor for the respondents emailed correspondence to [lawyer's name] at Corrs, referenced the expert report of Ms Chen and stated:
Please provide, by no later than 4 pm on Wednesday, 13 April 2022, copies of the following documents:
(a) All documents recording any communications between your firm and Ms Chen;
(b) All documents recording any communications between your client, including their employees and Ms Chen; and
All drafts of the expert report.
57 [Corrs partner's name] responded to that request by email on 12 April 2022. Inter alia he said:
There is no legitimate basis for such a request. Insofar as your clients seek production of correspondence with Ms Chen, our client maintains its privilege over that correspondence, except to the extent that it discloses the instructions given to Ms Chen (and those documents have already been produced at Annexure FC-1 of Ms Chen's witness statement dated 8 March 2022). The filing of Ms Chen's witness statement does not itself lead to a waiver …
58 The solicitor for the respondents did not accept that. A detailed and reasoned request for the production of the documents was sent by email on 13 April 2022, although the attached letter is wrongly dated 11 April 2022. The requested documents were not produced. On 16 April 2022, [the Corrs partner] sent correspondence by email to the solicitor for the respondents. Amongst other things he said:
As we previously communicated, all of the instructions given to Ms Chen have already been provided (as Annexure FC-1 to Ms Chen's witness statement). For completeness, we also advise that there are no communications between New Aim and Ms Chen. To the extent that your client presses for drafts of Ms Chen's report and any other communications between Corrs and Ms Chen record instructions given to Ms Chen, our client maintains that this is neither necessary nor appropriate. In particular, as discussed further below, these communications and documents are privileged, and there has been no waiver of that privilege.
59 The respondent's solicitor did not respond to that email.
117 Contrary to what the primary judge stated at [75], the email correspondence sent by Corrs to the solicitors for the respondents below was not "false". Corrs maintained the position that its communications with Ms Chen were privileged except to the extent that the communications disclosed instructions. The communications which were ultimately produced pursuant to the call which had been made, being the email correspondence that was exchanged between Corrs and Ms Chen from 21 February 2022, did not disclose instructions. The material was arguably, if not probably, privileged from production at the time of the correspondence between the solicitors (in April 2022), but any such privilege was waived by production of the material.
118 At [76], the primary judge stated:
What occurred in this case went far beyond the permissible scope of involvement of lawyers who retain an independent expert in order to give evidence in a proceeding. I reject the submission of counsel for the applicant that I should accept Ms Chen as an independent expert witness and that "the process by which her evidence was prepared is unremarkable." For the reasons I have given, it most certainly was not. Even if in some circumstances it is proper for lawyers to draft an independent expert witness statement for consideration by the putative expert, that fact must be disclosed in the expert report conformably with the obligations that the expert assumes in accordance with the Expert Evidence Practice Note of this Court and the Harmonised Expert Witness Code of Conduct. And then, all correspondence relating to the manner of preparation of the report should be disclosed and, to the extent that oral advice is conveyed to the expert, the substance should be documented and disclosed. What occurred in this case should not be repeated.
119 The Court's expectations concerning independent expert witnesses is set out in the Practice Note and the Code. Ms Chen was retained as an independent expert, although the majority of her evidence was factual in nature. There are various ethical requirements on legal practitioners involved in the process of gathering or putting evidence into an appropriate form for hearing. At the core of these is a requirement not to influence a witness's evidence. This applies both to witnesses of fact and expert witnesses providing opinion evidence. Legal practitioners commonly take proofs of evidence from, or draft affidavits of, witnesses of fact. These are commonly drafted from oral communications which occur in conference or written material provided by the witness or which are otherwise available. It is less common for this to occur in the preparation of expert evidence, but there are reasons why it might occur. Where a legal practitioner takes responsibility for the drafting of evidence, the perception may arise that the drafter may have influenced the content of the evidence, even subconsciously.
120 There is not one rule or practice which covers all experts or all situations. For example, in the typical case where medical opinion evidence is required, the medical expert would ordinarily draft his or her own report. The same is generally true of an expert valuer preparing a valuation or an accountant preparing a report about economic loss. There may be discussion in relation to drafts of the report, but one would ordinarily expect the report to be drafted by the expert rather than the legal practitioner. Nevertheless, a number of situations might arise where legal practitioners are involved in the process of recording an expert's evidence, including by preparing or drafting the report. For example, there may be physical, language or resource difficulties. Where these situations arise, care must be taken to ensure that the legal practitioner does not suggest what the expert's evidence should be and that the report is drafted from what the expert has communicated to the legal practitioner as fact or what the expert has assumed or what the expert's opinion is. Leaving aside formal matters or instructions or assumptions the expert is required to make, it is difficult to conceive of a situation in which a legal practitioner, acting appropriately and ethically, could draft an expert's report otherwise than on the basis of what the expert had communicated to the legal practitioner to be his or her evidence.
121 The primary judge observed at [76] that, if legal practitioners are involved in the drafting of an expert report that fact must be disclosed in the expert report. This may well be desirable, forensically or otherwise, but there is no legal obligation as such to do so. Whether there is an ethical obligation to do so depends on the particular circumstances.
122 The primary judge also observed at [76] that all correspondence relating to the preparation of the report must be disclosed. Again, this might be desirable, but there is no legal obligation as such to do so. Again, whether there is an ethical obligation to do so depends on the particular circumstances.
123 As to the primary judge's observation that any oral advice conveyed by a legal practitioner to the expert should be documented and disclosed in the expert's report, the legal or ethical necessity of this depends on all of the circumstances, including the nature of the advice conveyed to the expert and the relevance of it, if any, to the report or opinions expressed.
124 The primary judge's reasons for rejecting Ms Chen's report focussed attention on Ms Chen's opinion evidence from paragraphs 56 to 60. The primary judge stated at [77]:
In the result, I cannot be satisfied that the opinions expressed in the report by Ms Chen truly represent her honest and independent opinions and that no matters of significance have been withheld. I reject all opinions and other factual material as set out in her report of 8 March 2022.
125 It is not clear why the primary judge rejected paragraphs 1 to 55 of the Ms Chen's report, apart from the fact that the primary judge was not satisfied that the opinions in paragraphs 56 to 60 reflected Ms Chen's honest and independent opinions. There was substantial material before the primary judge which indicated that paragraphs 1 to 55 of Ms Chen's expert report were drafted by reference to Ms Chen's Bio and Script and on the basis of discussions with Ms Chen during one or more video conferences in relation to a draft or drafts prepared by Corrs. The reasons contained no reference to the similarities between paragraphs 1 to 55 of Ms Chen's expert report and her Script. No clear reasons were given as to why this factual evidence was rejected.
126 There was also substantial material to suggest that paragraphs 56 to 60 were drafted on the basis of Ms Chen's written and oral communications. The reasoning adopted for the rejection of the opinion evidence at paragraphs 56 to 60 contains a number of factual errors and errors of approach, discussed above, which, if they had not occurred, might well have resulted in the evidence not being rejected.
127 At the hearing of the appeal, counsel for the respondents submitted that ground 12 was not material to the outcome of the appeal. In summary, he contended that, having regard to other evidence before the primary judge (in particular, the evidence of Mr Huang), the evidence of Ms Chen, had it not been rejected, would have made no difference to the outcome of the case.
128 We do not accept that submission. The report of Ms Chen (both in its factual content and in the opinions it expresses) was potentially relevant to a number of the factors or criteria considered by his Honour in evaluating whether the alleged confidential information (in particular, the WeChat contact details of the representatives of the 17 Suppliers) was confidential. In particular, Ms Chen's evidence was potentially relevant to (at least) the following sections of the primary judge's reasons:
(a) What is the value of the information to the applicant and its competitors?
(b) What were the usages and practices of the industry?
129 That Ms Chen's report was potentially relevant to these sections is apparent from the primary judge's reasons at [203] and [215], which make specific reference to New Aim not being able to rely on the evidence of Ms Chen.
130 While it is true that the evidence of Mr Huang was in some respects substantially the same or similar to that of Ms Chen, he was not independent of New Aim, whereas Ms Chen was an independent witness. Therefore, we do not accept the proposition that the evidence of Ms Chen added nothing or very little, or that it would necessarily have been treated in the same way.
131 It is also true that the opinion section of the report of Ms Chen is expressed very briefly. Nevertheless, it is to some extent underpinned by the factual section of the report. In any event, it is not for this Court to determine what weight would have been given to Ms Chen's report had it not been rejected.
132 For the above reasons, ground 12 should be upheld.