Plaintiff v Defendants

2 The first defendant (SPI) was granted leave by J Forrest J to serve a subpoena on an expert engaged by the plaintiff, Mr Henry Hawes. Ten thousand five hundred and twelve documents were produced. The plaintiff was granted leave to inspect the documents to see if any were privileged. In consequence, the plaintiff objected to the inspection by SPI of 89 of the documents on the ground of privilege.

3 The claim of privilege is advanced in the affidavit of Irina Lubomirska sworn 24 May 2013. The approach adopted by Ms Lubomirska to determine whether any documents is subject to a claim of privilege was to treat the document as having lost privilege if it contained or related to any matter that could be said to have influenced or underpinned Mr Hawes' reports or that contained information necessary for the proper understanding of the reports. Otherwise, the affidavit proceeds on the basis that the documents in question were brought into existence for the dominant purpose of giving legal advice to the plaintiff, or for the purposes of this litigation.

4 The question of whether the privilege was established or, if established, was waived by the delivery of reports by Mr Hawes was referred by J Forrest J for determination by me by order made on 23 April 2013. The matter has been dealt with by the parties making written submissions and the provision of the disputed documents to me for inspection under s 133 of the Evidence Act 2008 (Vic) (Evidence Act).

5 SPI presses for the inspection of 21 of the 89 documents.

6 Mr Hawes is a civil engineer with extensive experience in overhead line design and the impact of wind and weather on overhead line structures. He executed a retainer with the plaintiff's solicitor to act as an independent expert witness on 10 November 2011. He has provided reports for the purposes of this proceeding dated 22 August 2012, 5 April 2013 and 6 May 2013. Copies of these reports were included in the materials put before me. Mr Hawes has participated in a conclave of experts, being conclave No. 4 entitled "Qualitative Analysis of Impact of Loads or Stresses". The experts' joint report in conclave No. 4, dated 2 October 2012, was also included in the materials for my consideration.

7 Ms Lubomirska has identified in the documents the subject of the subpoena various documents that relate to the production of the joint report of that conclave, but has not reviewed them because they are confidential to the experts and because, under the regime established by J Forrest J and Zammit AsJ for the conduct of the conclaves, the lawyers for the parties were excluded.

8 In addition to providing independent expert reports, which have been disclosed to SPI, Mr Hawes has provided confidential advice to the plaintiff's solicitors on issues relating to the proceeding, when requested to do so. That advice does not necessarily relate to the matters the subject of Mr Hawes' reports that have been disclosed.

(a) The first is one contractual communication between Mr Hawes and the plaintiff's solicitors (document 12); and

(b) The second comprises 20 communications between Mr Hawes and the plaintiff's solicitors requesting or providing advice in connection with the proceeding (the advice documents).

10 The advice documents fall into further sub-categories, as follows:

(a) 10 documents requesting or providing advice concerning an objection to the expertise of Mr Hawes which was made by SPI in September 2012. These are documents 18, 19, 38, 39, 40, 41, 45, 46, 50 and 51;

(b) two documents seeking advice in relation to proposed expert conclave compositions. These are documents 47 and 52; and

(c) eight documents seeking or providing confidential advice regarding miscellaneous matters unrelated to Mr Hawes' reports or to the opinions he expresses in them. These are documents 17, 24, 25, 29, 30, 42, 43 and 48.

11 SPI did not ultimately press for inspection of documents 47 and 52.

12 I was provided with copies of the disputed documents to enable inspection pursuant to s 133 of the Evidence Act.

13 In Matthews v SPI Electricity Pty Ltd [2013] VSC 33, I set out at [31]-[55] the relevant principles in relation to ss 122(2) and 126 of the Evidence Act. For convenience, I repeat those observations in the Schedule to these reasons.

14 In addition to those observations, SPI point to a further matter adverted to in New Cap Reinsurance Corporation Ltd v Renaissance Reinsurance Ltd,[1] where White J stated, at [53]:

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.[2]

15 It is also material to note in relation to associated documents waiver (under s 126 of the Evidence Act) that there is a line of authority which establishes that draft documents and other communications of a like nature with an expert witness proposed to be called in litigation are privileged under s 119(b), whatever may have been the position at common law: Natuna Pty Limited v Cook;[3] New Cap Reinsurance Corporation Ltd (In Liq) & 1 Or v Renaissance Reinsurance Ltd;[4] and ML Ubase Holdings Co Ltd v Trigem Computer Inc;[5] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 7).[6]

16 In the last of those cases, Heerey J quoted with approval the observations of Brereton J in ML Ubase at [45]-[46]:

In my opinion, service and tender of an expert witness' report in proceedings does not constitute a waiver of the privilege which attaches to communications between the expert and the solicitors who instructed him or her, save to the extent that those communications are associated documents reasonably necessary to an understanding of the report. "Proper understanding" of a document or communication will sometimes, but not always require that documents to which it responds or refers be available. It may very likely be so when the primary document contains a summary or excerpt from an earlier communication, or responds to questions which are not themselves restated in it. But I do not accept that "a proper understanding of the communication or document" involves an appreciation of the manner in which the opinions contained in the document have been formed over time, or the iterations and evolutions through which they have passed. The test is concerned with the comprehensibility of the primary communication or document: if it can be completely or thoroughly understood without more, then access to the related communications or documents is not reasonably necessary.

Accordingly, for the purposes of s 126, one starts by looking at the substantive document (made admissible under s 122 or another of the applicable sections) and asking whether, in order to understand it thoroughly, it is necessary to know what is in the associated material.

17 The title of Document 12 is "Expert Witness - Kilmore East Kinglake Bushfire.msg" and is dated 24 October 2011. It is said to be an email sent by Mr Hawes to the plaintiff's solicitors before the entry into the retainer agreement and that, in so far as it relates to Mr Hawes' experience, the plaintiff notes that Mr Hawes' full CV was annexed to his report of 22 August 2012 (his first report) and that an expanded CV and a statement of experience was subsequently provided to the parties after objection was taken to the admissibility of Mr Hawes' first report and to his participation in conclaves, on the basis of an alleged lack of expertise. The provision of the expanded CV and statement of experience resulted in the objection to Mr Hawes being withdrawn. The plaintiff also maintains that document 12 is not relevant to the content of Mr Hawes reports or to any issue in the proceeding.[7]

(a) it may be inferred from the foregoing that document 12 relates, at least in part, to the scope of Mr Hawes' experience and expertise and whether that experience and expertise would qualify Mr Hawes to opine upon any, and if so which, issues in the proceeding; and

(b) The question is therefore whether, by filing and serving Mr Hawes' reports, the Plaintiff has waived privilege over this communication by operation of s 122(2) of the Evidence Act 2008 (Vic).

19 SPI submitted that privilege has been waived because:

(a) Mr Hawes' first expert report (dated 22 August 2012) contains statements of his relevant experience and qualifications at Appendix 1 (as is required to establish his expertise). The material in Mr Hawes' email (document 12) about his expertise are likely to underpin the content of Appendix 1;

(b) This communication about Mr Hawes' expertise adverts to facts and matters relevant to Mr Hawes' ability to express expert opinions in this proceeding. As the Plaintiff now relies upon Mr Hawes' expert opinion in this proceeding, the Plaintiff's maintenance of privilege over this communication would be unfair to SPI; and

(c) By document 12, Mr Hawes provided information to the Plaintiff about his expertise. It may be inferred, from the timing of the correspondence prior to entry into the retainer, that Mr Hawes' response was relevant to the decision to retain him and, by implication, relevant to identifying his precise area of expertise and his capacity to provide expert opinion on matters in issue in the proceeding. In those circumstances, the privileged material, being Mr Hawes' email, influenced the questions the plaintiff asked him, and thereby influenced the content of his reports both by inclusion and by omission.

20 It is apparent from my inspection of document 12 that it was sent to the plaintiff's solicitors for the purpose of informing them of Mr Hawes' qualifications and experience following an inquiry made of him in that regard. The reasonable inference from the content of the email is that it was sent for the purpose of the plaintiff's solicitors giving advice to the plaintiff whether it was appropriate to retain him.

21 The first question is whether the inclusion of material of the same kind in Mr Hawes' first report (his Curriculum Vitae) gives rise to inconsistency between the maintenance of the confidentiality in the email in question and the waiver of privilege in the reports. In my view it does not. There is neither an evident influence of the email correspondence (or the attachment to the email) on the first report, nor any indication that one underpins the other, except in the sense that the attachment and the Curriculum Vitae annexed to the first report are of the same kind.

22 The second question is whether the inspection by SPI of document 12 is reasonably necessary to enable a proper understanding of the Curriculum Vitae of Mr Hawes in his first report. That is, does associated materials waiver apply (s 126)? In my view it does not.

23 It is inappropriate to say anything further to justify the conclusions I have reached as this will reveal more than is necessary of the content of the communication.

24 In September 2012 SPI made a number of objections to the report of Mr Hawes and to his participation in conclaves on the basis of alleged lack of expertise. For the purpose of dealing with the objection taken by SPI to the admissibility of Mr Hawes' first report, the plaintiff's solicitors sought from Mr Hawes an expanded CV and statement of work experience. The documents in this category comprised correspondence seeking and obtaining the expanded CV and statement of work. The expanded CV and statement of work were subsequently provided to the parties, including SPI. The objection to expertise was later withdrawn.

25 The emails in this group of documents include, as part of an email thread or chain, an earlier unrelated email which asks Mr Hawes to provide to the plaintiff's solicitors a number of documents referred to in his report. That email has been separately produced to SPI for inspection.

26 SPI submits that this objection raises the same issue as that identified in relation to document 12. SPI submits that privilege is waived because;

(a) These communications about Mr Hawes' expertise advert to facts and matters relevant to Mr Hawes' ability to express expert opinions in this proceeding. As the plaintiff now relies upon Mr Hawes' expert opinion in this proceeding, the plaintiff's maintenance of privilege over these communications would be unfair to SPI; and

(b) The plaintiff sought and obtained the further information about Mr Hawes' expertise prior to seeking his Supplementary Report dated 5 April 2013 and Second Supplementary Report dated 6 May 2013. It may be inferred, from the timing of the correspondence prior to these reports, that Mr Hawes' response was relevant to the decision to retain him to undertake further work and, by implication, relevant to identifying questions within his precise area of expertise. In those circumstances, the privileged material, being Mr Hawes' emails, influenced the questions that the plaintiff asked him, and thereby influenced the content of his reports both by inclusion and by omission.

27 It is apparent from my inspection of documents 18, 19, 38, 39, 40, 41, 45, 46, 50 and 51 that they comprise emails requesting from Mr Hawes, and Mr Hawes providing by way of response, a statement of work experience and an expanded CV, for the purpose of the plaintiff's solicitors advising the plaintiff about, and dealing with, SPI's objection to the admissibility of Mr Hawes' first report.

28 I have not seen the versions of the expanded CV or the statement of work provided to SPI and the other parties. But as a general rule, drafts of these documents provided for the purposes of advice to the plaintiff remain privileged, just as drafts of the substantive reports submitted to the parties' legal advisors, so as to be put in a form which will ensure that they are admissible, remain privileged.[8]

29 Further there is no apparent connection, on the face of the emails and documents, between them and any decision to retain Mr Hawes to prepare his later reports dated 5 April 2013 and 6 May 2013. The purpose of those reports is evident from their stated purpose and content. Moreover, the fact that these supplementary reports followed the further material as to his expertise and experience does not lead to an inference that that Mr Hawes' response was relevant to the decision to retain him to undertake further work and, by implication, relevant to identifying questions within his precise area of expertise. This is no more than the application of the fallacy of assuming causality from temporal sequence and thus confusing sequence with consequence: Post hoc, ergo procter hoc.

30 In August and September 2012 there were disputes between the parties concerning the appropriate structure and composition of expert conclaves.

31 In the course of that dispute, the plaintiff's solicitors sought advice from a number of experts retained by the plaintiff as to their views regarding conclave composition and what disciplines ought to participate in what conclaves.

32 Documents 47 and 52 comprise the correspondence with Mr Hawes regarding this issue.

33 SPI did not ultimately press for inspection of these documents.

34 On several occasions throughout the proceeding the plaintiff, on a confidential basis, sought Mr Hawes' advice regarding various matters that Mr Hawes would either address himself or recommend a person who may be able to assist in advising the plaintiff.

(a) documents 17, 29, 42, 43 and 48 constitute confidential advice to the plaintiff and have no relevance at all to the reports of Mr Hawes;

(b) Document 24 provides confidential advice that was requested by the plaintiff's solicitor at a meeting with Mr Hawes. The advice was requested and provided for the purposes of providing advice to the plaintiff, well prior to Mr Hawes being instructed to produce a report;

(c) Document 25 constitutes Mr Hawes' response to a question posed by the plaintiff's solicitor in order to verify the results of a calculation based on hypothetical inputs and for purposes extraneous to Mr Hawes' report. Mr Hawes was provided with inputs and asked to perform the calculation, without being informed of the purposes of the calculation; and

(d) Document 30 constitutes advice provided by Mr Hawes in relation to a matter which relates to a different issue in the proceeding and cannot be said to have influenced or underpinned any of Mr Hawes' reports.

(a) The plaintiff's submissions do not meaningfully assist in identifying the precise content of these documents;

(b) It is clearly possible that reasonable minds might differ as to whether the advice provided by Mr Hawes trespassed into topics associated with the content of his reports or the conclave in which he participated;

(c) Without the benefit of inspection, SPI is, however, unable to determine whether that is so. SPI therefore requests the Court to inspect these documents, and notes the following in relation to the matters advanced in the plaintiff's submissions:

(i) It is not clear what difference is sought to be drawn between Documents 17, 29, 42, 43 and 48, which are said to "constitute confidential advice to the plaintiff and have no relevance at all to the reports of Mr Hawes", and Document 30, which is said to constitute "advice provided by Mr Hawes in relation to a matter which relates to a different issue in the proceeding and cannot be said to have influenced or underpinned any of Mr Hawes' reports";

(ii) Document 24 is said to concern confidential advice provided "well prior to Mr Hawes being instructed to produce a report". That fact alone cannot support the conclusion that that advice does not influence or underpin Mr Hawes' reports. If the advice addresses matters with which Mr Hawes deals in his reports or which may be the subject of the conclave, it may have influenced or underpinned his reasoning, methodology or views, regardless when he was formally instructed to produce a report. Indeed, he may well have been asked to produce a report on the basis of his prior expression of views in conference or in writing that would assist the plaintiff;

(iii) Document 25 is said to be a response to a question posed by the plaintiff's solicitor to verify a calculation and that Mr Hawes was not told the purpose of that calculation. The fact that Mr Hawes was not told the purpose of the calculation is irrelevant to whether that calculation, or the assumptions in that calculated, influenced or underpinned Mr Hawes' reports.

37 The submissions of the parties in relation to these advice documents give me no sound basis for the determination of whether there may have been a waiver of privilege in respect of them by the delivery of Mr Hawes' several reports. There is nothing in the affidavit in support of the plaintiff's claim, nor in the submissions made on behalf of SPI, that leads me to doubt that the privilege continues to subsist.

38 In these circumstances I have inspected the documents and conclude that each of the descriptions given by the plaintiff in the written submissions is an accurate reflection of the apparent purpose for which the document was brought into existence and, moreover, none of those documents can be seen to have influenced Mr Hawes' reports or in anyway provided a basis or underpinning for them.

39 In relation to all of the documents the subject of dispute, for the reasons above I conclude that there has been no waiver of privilege by the delivery of Mr Hawes' reports.

40 I will hear the parties as to the appropriate orders.

Matthews v SPI Electricity Pty Ltd & Ors and SPI Electricity Pty Ltd v ACN 060 674 580 & Ors (formerly Utilities Services Corporation Ltd) [2013] VSC 33

1 It is common ground that the issues raised by the plaintiff's application are governed by the provisions of the Evidence Act 2008 (Vic) ("Evidence Act"), in particular Part 3.10, Division 1, which applies to interlocutory proceedings.[9]

2 The application is made on the assumption that the documents identified in the Summons are properly the subject of privilege.

3 The plaintiff claims that SPI has lost the privilege in the Summons documents by the operation of s 122, or by a combination of that section and s 126, of the Evidence Act. For present purposes, only sub-section 122(2) need be considered. It provides:

Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in sections 118, 119 or 120.

4 The origin of this sub-section is the provision in the same terms introduced into the Commonwealth and New South Wales Uniform Evidence Acts following the Australian Law Reform Commission Report 102, prepared with the New South Wales and Victorian Law Reform Commissions.[10] Because the Victorian Act post-dated those amendments, the sub-section appeared in the Victorian legislation from enactment.

5 The object of the sub-section was to adopt the approach of the High Court in Mann v Carnell, in which case Gleeson CJ, Gaudron, Gummow and Callinan JJ stated:[11]

What brings about the waiver is inconsistency, which the courts, where necessary informed by the consideration of fairness, perceive, between the conduct of the client and the maintenance of the confidentiality; not some overriding principle of fairness operating at large.

6 Although sub-section 122(2) is formulated a little differently from the formulation of the common law principle by the High Court in Mann v Carnell, in that it works on inconsistency between the conduct of the party and a claim of legal entitlement to confidentiality, whilst the High Court formulation works on inconsistency between the conduct of the party and the maintenance of confidentiality,[12] for present purposes nothing turns on this difference. The relevance, however, of the origin of the formulation is that the common law cases on the question of waiver of privilege continue to be relevant to the question arising under s 122 of the Evidence Act.[13]

7 So, under the test propounded in Mann v Carnell it is inconsistency between the conduct of the client and the maintenance of the confidentiality that the privilege is intended to protect which effects a waiver of the privilege. The test for imputed waiver had previously been expressed in terms of fairness: see Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 ('Maurice') at 481 per Gibbs CJ, 487-8 per Mason and Brennan JJ, 492-3 per Deane J, and 497-8 per Dawson J. Fairness has become a subsidiary consideration; it may be relevant to the court's assessment of inconsistency in some contexts but not in others.[14]

8 In any application of Mann v Carnell, the starting point must be an analysis of the disclosures or other acts or omissions of the party claiming privilege that are said to be inconsistent with the maintenance of confidentiality in the privileged material.[15]

9 It is well established that a voluntary disclosure of privileged documents can result in a waiver of privilege over those documents and associated material. The test applied to determine the scope of any waiver of 'associated material' is whether the material that the party has chosen to release from privilege represents the whole of the material relevant to the same issue or subject matter: Maurice at 482 and 484 per Gibbs CJ, 488 per Mason and Brennan JJ, and 498-9 per Dawson J.

10 Associated material waiver brings into play s 126 of the Evidence Act, the related communications and documents provision. That section provides:

If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document.

11 Sections 4(1)(b) and 131A of the Evidence Act have the effect of applying s 126 to the interlocutory questions raised by the plaintiff's Summons.

12 In Towney v Minister for Land & Water Conservation (NSW),[16] Sackville J made a number of pertinent observations about this section. First, that the test set out is an objective test; secondly, that its operation must be assessed according to its terms and not on the basis that it in some way reflects the pre-existing common law; and thirdly that it was clear in his view that a mere reference in a subject document to another communication or document, of itself, does not necessarily result in a loss of privilege attaching to the subject document. The application of s 126 ultimately depends on the degree and manner in which the subject document assists in a proper understanding of the other communication or document. In relation to the meaning of 'proper understanding', Sackville J said:

The dictionary definition of 'proper' includes 'complete or thorough'; the definition of 'understand' includes 'to apprehend clearly the character or nature of' and 'to grasp the significance, implications or importance of': Macquarie Dictionary.

13 Sackville J's views were essentially accepted as correct by the NSW Court of Appeal in Sugden v Sugden.[17]

14 A common application of associated material waiver is where an expert report has been prepared in reliance on other documents.[18] In Australian Securities and Investments Commission v Southcorp Ltd,[19] Lindgren J helpfully summarised the following principles derived from his analysis of the case law, in relation to the waiver of privilege in connection with expert evidence, in the following terms:

1. Ordinarily the confidential briefing or instructing by a prospective litigant's lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege: cf Wheeler v Le Marchant (1881) 17 Ch D 675; Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 at 246; Interchase Corp Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1) [1999] 1 Qd R 141 (Interchase) at 151 per Pincus JA, at 160 per Thomas J.
2. Copies of documents, whether the originals are privileged or not, where the copies were made for the purpose of forming part of confidential communications between the client's lawyers and the expert witness, ordinarily attract the privilege: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 ; 141 ALR 545 ; 91 A Crim R 451 (Propend); Interchase, per Pincus JA; Spassked Pty Ltd v Cmr of Taxation (No 4) [2002] FCA 491; (2002) 50 ATR 70 at [17].
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 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; cf Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 481 ; [1986] HCA 80; 69 ALR 31 at 34 per Gibbs CJ, CLR 487-8; ALR 38-9 per Mason and Brennan JJ, CLR 492-3; ALR 42-3 per Deane J, CLR 497-8; ALR 46-7 per Dawson J; Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 98 ; [1995] HCA 39; 132 ALR 57 at 66 per Deane, Dawson and Gaudron JJ, CLR 109; ALR 75 per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd [1995] FCA 870; BC9506842; Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89; BC200300344 (ACCC v Lux) at [46].
5. Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents; Interchase at 148-50 per Pincus JA, at 161 per Thomas J.
6. It may be difficult to establish at an early stage whether documents which were before an expert witness influenced the content of his or her report, in the absence of any reference to them in the report: cf Dingwall v Commonwealth [1992] FCA 627; (1992) 39 FCR 521; Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No 2) (1998) 83 FCR 397 at 400; 156 ALR 364 at 366; ACCC v Lux at [46].

15 Notwithstanding the reference to client legal privilege, Lindgren J was speaking of common law principles of legal professional privilege.[20]

16 Similar principles apply to imputed waiver of material relied on in legal advice disclosed in litigation, so that if an advice of a lawyer is revealed for a particular purpose in a case, then all the material relied on by the lawyer in giving that advice must also be revealed, if called for: Thomas v New South Wales [2006] NSWSC 380, McClellan CJ at Common Law; Newcrest Mining (WA) Limited v Commonwealth (1993) 40 FCR 507, French J.

17 The decision of McClellan CJ in Thomas v New South Wales is relevant for another reason as well, namely the timing of any waiver. In that case an advice of counsel (to the plaintiff) had been attached to an affidavit in support of an application by the plaintiff to remove the proceedings from the District Court to the Supreme Court, but the advice had not been read in any proceedings and was not relied upon when the application was litigated. The plaintiff argued that it would be unfair if the defendant was given access at that time to documents relied on for the purposes of the advice. Although it was accepted that the plaintiff advanced the advice with the intention of relying upon it, it was submitted that because no advantage has ultimately been obtained, the Court should decline to require the plaintiff to produce the documents underlying it. McClellan CJ rejected that argument. He held that by including the advice in the affidavit, an act of express waiver was undertaken; and at that point the implied waiver also took place in relation to the documents underpinning the advice. It was plain that the plaintiff sought to have the advantage of the advice and use it in the proceedings. That step was taken consciously. His Honour said (at [20]):

In the present case the plaintiff disclosed the advice in these proceedings for the purpose of obtaining whatever assistance he could from that advice in pursuit of his claim. To my mind, that disclosure waived his privilege both in the advice itself and the documents which were used by counsel and which influenced the content of the advice. Waiver having occurred, the fact that the advice was not ultimately tendered is, to my mind, not relevant. Having sought an advantage, the plaintiff was bound by the course he had taken and accordingly is amenable to producing the relevant documents in response to an appropriate notice to produce.

18 In England, the principle has been applied to documents which underpin or support expert evidence: see Dunlop Slazenger International Ltd v Joe Bloggs Sports Limited [2003] EDWCA Civ 901; Mayne Pharma Pty Ltd v Debiopharm SA [2006] EWHC 164 (Pat); and L'Oreal SA v Bellure NV [2006] EWHC 1503 (Ch).[21]

19 In Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation (No 2)[22] ('Nea Karteria'), a lawyer gave evidence that he had conducted an interview on the basis of a list of questions prepared by the plaintiffs' lawyers. While privilege was waived with respect to the witnesses' answers, the plaintiffs sought to maintain privilege with respect to the list of questions: at 139-140. Mustill J (as his Lordship then was) held (at 140) that privilege over the list of questions had been waived by implication.[23]

20 In New Cap Reinsurance Corp Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258, White J said, at [45]-[47]:

[45] Service of a witness statement, whether it be a statement of an expert or a witness to fact, waives privilege in that statement. As stated in the Marubeni Corp case mere reference to a document does not waive privilege in that document: there must at least be reference to the contents and reliance. In the present case there was no reference and no reliance therefore no waiver.

[46] In Dingwall v Commonwealth of Australia [1992] FCA 627; (1992) 39 FCR 521, Foster J, referring to Attorney-General (NT) v Maurice, said (at 524):

I have come to the view, upon a close consideration of the judgments in Maurice's case that it cannot be regarded as authority for a wide principle that, whenever documents are sent to a potential witness as part of material being placed before him in order that he may provide a report of an expert kind to be used as evidence in a case, that those documents, ipso facto, although they had the protection of legal professional privilege, necessarily would lose it because of the doctrine of waiver. Maurice's case does not go as far as that. It requires, certainly, that there be an indication that the documents were used in the preparation of the evidentiary document in a way that could be said to influence the content of that document.

[47] The same principle was applied by Mansfield J in Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No. 2) (1998) 83 FCR 397 at 400; 156 ALR 364 at 367, and by Nicholson J in Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89 at [46].

21 Both parties relied (albeit for different purposes) on the observations of Warren J (as her Honour then was) in Cobram Laundry Services Pty Ltd v Murray Goulburn Cooperative Co Ltd:[24]

As a fundamental principle, when a witness is called in order to provide expert opinion evidence all of the facts and instructions upon which that witness bases the expert opinion are admissible and subject to production: see R v Meninga (1992) 66 ACLR 199; also, Cross on Evidence, Aust ed, para 2535. Furthermore, under the doctrine of fairness that applies to the claim for legal professional privilege with respect to a document, where it is fair so that the relevant evidence may be tested, a claim for legal professional privilege ceases to apply; it is taken to have been waived: Attorney-General (Northern Territory) v Maurice [1986] HCA 80; (1986) 161 CLR 475; Burnell v British Transport Commission (1956) 1 QB 187 (CA). Ultimately, the effect of upholding a claim for privilege necessarily involves withholding important information from the court that may in turn be at the expense of the administration of justice to one of the parties to the proceeding. Hence there must be good cause for the existence of any privilege: see Cross on Evidence, Australian ed, para 25045; also, 8 Wigmore, para 2190.

22 It is pertinent, however, to observe the context in which these remarks were made. In that case it became apparent in the course of the cross-examination of an expert accountant called by the defendant that a draft of his report had been produced that was more favourable to the plaintiff than the report relied upon. Changes had been made to the report in a conference with counsel. This prompted a call for the draft, over which privilege was claimed.

23 In Roads Corporation v Love[25] 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.[26]

The expert report presented in evidence should also be transparent in providing the facts or assumptions upon which the expert opinion is based and the information relied upon. This is essential to enable the opinions to be adequately tested.[27]

[I]t would be unfair for the respondent to maintain the privilege in respect of the communications. To do so would inhibit the capacity of the applicant to cross examine the respondent's expert witnesses as it should to properly test the evidence presented against it. Waiver of privilege is, therefore, imputed. In this case the interests in disclosure prevail over legal professional privilege.[28]

24 In Prince Removal & Storage Pty Ltd v Roads Corporation[29] Emerton J assumed a similar formulation of the relevant test, namely that documents in fact contained instructions or facts that have influenced or found their way into the expert reports,[30] for the purpose of determining whether a waiver had occurred when the expert reports were filed, or only later when the expert is called to give evidence. However, as there was no argument that the documents in fact contained instructions or facts that influenced or found their way into the expert reports, she did not have to decide the issue. In relation to the timing of the waiver, Her Honour did hold, however, that:

I consider that in this case, however, privilege was waived when the expert reports were filed. Interlocutory orders are routinely made by the court, particularly in the Valuation, Compensation and Planning List, requiring expert reports to be filed and served well in advance of the trial date as part of the active case management of compensation proceedings by the court. Case management of this kind is directed to securing the orderly and efficient conduct of proceedings and to reducing the cost to the parties. It will often include a requirement for the parties to attend mediation and for expert witnesses to confer and report jointly to the court with a view to refining or narrowing the issues in dispute. This is consistent with the overarching purpose in s 7 the Civil Procedure Act 2010 (Vic) to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute. Viewed in the light of these routine interlocutory processes, the filing of the expert reports in the proceeding involves reliance on them at an early stage for the purposes of the proceeding.[31]

25 In AWB Ltd v Cole (No 5),[32] after a detailed examination of authority, Young J held that privilege will be waived over 'documents and information which were taken into account, or which otherwise underpinned or influenced' the content of a document that the party chose to deploy to advance its own interests.[33] His Honour found that privilege had been waived in documents that had a connection with the subject matter of the legal advice that AWB chose to disclose. These included other connected legal advices that were obtained.

[1] [2007] NSWSC 258

[2] Cited with approval in Watkins v Queensland [2007] QCA 430; [2008] 1 Qd R 564, [14]-[15] (Jerrard JA); Traderight (NSW) Pty Ltd v Bank of Queensland Ltd [2013] NSWSC 211, [17] (Ball J).

[3] [2006] NSWSC 1367.

[4] [2007] NSWSC 258.

[5] [2007] NSWSC 859; (2007) 69 NSWLR 577.

[6] (2008) FCA 323.

[7] Affidavit of Irina Lubomirska sworn 24 May 2013 art [16].

[8] New Cap Reinsurance Corporation Ltd v Renaissance Reinsurance Ltd [2007] NSWSC 258 at [53].

[9] Evidence Act 2008 (Vic) ss 4(1)(b) and 131A.

[10] The Report was tabled in the Victorian and NSW Parliaments in February 2006, before the enactment of the Victorian Evidence Act.

[11] (1999) 201 CLR 1; [1999] HCA 66. See Stephen Odgers, Uniform Evidence Law (Thomson Reuters Australia, 10th Ed, 2012), 1.3.11070, 667.

[12] See the comments in Odgers, above n 11, 667.

[13] Subject to, however, a difference arising from the inclusion in s 119(b) of the contents of confidential documents, whether delivered or not, prepared for the dominant purpose of, in effect, use in litigation, a matter not within the common law privilege: see the observations of White J in New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258, [18]-[20].

[14] AWB Limited v Cole (No 5) (2006) ALR 651; [2006] FCA 1234 at [130] per Young J**;** Perhaps an 'unfair inconsistency': See also Byrne J in Liquorland (Australia) Pty Ltd v Anghie [2003] VSC 73; (2003) 7 VR 27, [41]

[15] AWB Limited v Cole (No 5) [2006] FCA 1234, [134] per Young J.

[16] (1997) 147 ALR 402 at 414.

[17] (2007) NSWCA 312.

[18] As Young J described it in AWB v Cole (No 5) (2006) 234 ALR 651; [2006] FCA 1234, [168].

[19] (2003) 46 ACSR 438; [2003] FCA 804, [21].

[20] New Cap Reinsurance Corp Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258, [41].

[21] Young J in AWB v Cole (No 5) (2006) 234 ALR 651; (2006) FCA 1234, [171].

[22] [1981] Com LR 138.

[23] See also R v Secretary of State for Transport; Ex parte Factortame (1997) 9 Admin LR 591 at 599, Auld LJ; and Fulham Leisure Holdings Ltd v Nicholson Graham & Jones [2006] EWHC 158; [2006] 2 All ER 599 ('Fulham') at 604 [11].

[24] [2000] VSC 353, [58].

[25] [2010] VSC 253

[29] [2012] VSC 245.

[32] [2006] FCA 1234; (2006) 234 ALR 651