Plaintiffs v Defendant

1 On 5 June 2012, the Court made a series of orders with the consent of the parties in relation to discovery by both the plaintiffs and the defendant. The defendant, the acquiring Authority, seeks a further order in relation to documents in two categories in the plaintiffs' 'List of Documents relating to Reeds Consulting Pty Ltd' dated 23 May 2012 in respect of which the plaintiffs claim privilege. The plaintiffs claim that the documents are privileged on the grounds that they are confidential communications or documents passing between the plaintiffs or their consultants and the plaintiffs' legal advisers for the purpose of legal advice and are communications or documents prepared solely for the preparation of the plaintiffs' case in this proceeding.

2 The documents in question are in Categories 3 and 7 in the List.

Documents constituting, evidencing, recording or relating to communications and instructions received from the plaintiffs, the plaintiffs' solicitors or counsel, or Sam Mondous (including any employees, agents and contractors of the plaintiff companies) to Reeds Consulting Pty Ltd or Richard Brewster in relation to the reports and/or draft reports referred to in paragraph (a) and (b) above.

4 Although there are no paragraphs (a) or (b) in the relevant list of discovery, I take the description to refer to the expert report of Mr Richard Brewster dated 19 August 2010 (and drafts thereof).[1] Mr Brewster is a civil engineer and a director of Reeds Consulting Pty Ltd, who has been retained in the matter on behalf of the plaintiffs.

Documents in the period 1 January 2003 to date constituting, evidencing, recording or relating to communications between Reeds Consulting Pty Ltd or Richard Brewster and Marshall Day Acoustics in connection with the actual or hypothetical development of the Blue Horizons Estate by the plaintiffs or any other person or company including relating to options and costs and alternatives to deal with noise issues and/or the construction of a noise or sound wall on or near the land.

6 The plaintiffs claim privilege in relation to only five documents in Category 7. Those documents are described as communications between Mr Huybregts, an associate with Marshall Day Acoustics, who has also filed an expert report in the proceeding,[2] and other persons involved in the proceeding, including Mr Brewster and the plaintiffs' solicitors. Four of the documents were addressed to, or emanated from, the plaintiffs' solicitors, and the remaining document was copied to the plaintiffs' solicitors.

7 The Authority submits that the plaintiffs' have waived privilege in respect of the documents on the grounds that they contain the facts and instructions on which Messrs Brewster and Huybregts have based their expert opinion in the reports that have been filed in the Court.

8 As Warren J (as her Honour then was) said in Cobram Laundry Services Pty Ltd v Murray Goulburn Cooperative Co Ltd:[3]

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. 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.[4]

9 In Australian Securities & Investments Commission v Southcorp Ltd,[5] Lindgren J relevantly identified the following principles (which I shall paraphrase) in relation to the implied waiver of privilege for instructions and facts upon which an expert opinion is based:

(a) 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.

(b) 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, communication of any kind.

(c) 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 (a) or copies of documents made for the purpose, 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.

(d) 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.[6]

10 His Honour also commented that 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.[7]

11 The Court has not been asked to determine whether any of the documents in dispute are privileged, but to assume that they are. Moreover, there was no argument at all about whether the documents in dispute in fact contained instructions or facts that have influenced or found their way into the expert reports. The question that was agitated before the Court was whether an implied waiver of privilege had occurred upon the filing of the expert reports or whether it would only occur later when the witnesses came to give their evidence in court. The plaintiffs' objection to production was that there could be no implied waiver of privilege until the witnesses were called to give their evidence. At this stage, the expert reports have only been filed, and the plaintiffs might decide not to rely upon them at trial. As a result, so it is contended, there has been no disclosure of the expert reports for the purpose of relying on them in litigation.

12 In this context, I note that Warren J, in Cobram Laundry Services, referred to the requirement to provide all of the facts and instructions upon which an expert opinion is based 'when a witness is called in order to provide expert opinion evidence'.[8]

13 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.

14 Moreover, as it does not appear to be disputed that the privilege attaching to the communication of instructions and facts to Messrs Brewster and Huybregts will be waived once they are called upon to give their evidence in court, it is in the interests of the efficient, timely and cost effective conduct of the trial itself that those instructions and facts are revealed to the other party to the litigation before the witnesses enter the witness box. This will enable proper instructions to be obtained and reduce the likelihood of an adjournment.

15 I would propose, therefore, to order that the plaintiffs make available for inspection the documents in Categories 3 and 7 for which privilege has been claimed.

16 However, before so ordering, I make the following observation. The Court was not asked to look at the documents for which privilege is claimed and to which the implied waiver is said to apply. The Authority submitted that the description of the categories of documents was sufficient for the Court to be satisfied that they were documents of a kind that would attract the principles of implied waiver that have been referred to. The plaintiffs appeared to accede to this proposition.

17 It seems to be tolerably clear from the description of the Category 3 documents that they constitute, evidence or relate to instructions given to Mr Brewster for the purposes of preparing his expert report. This will include his own responses to instructions or material provided to him, including any requests for further instructions or information. It is reasonable to infer that the documents in Category 3 contain instructions and information upon which Mr Brewster based his expert opinion.

18 Category 7 contains a broader range of documents. The only documents in Category 7 in respect of which privilege is claimed are those involving the plaintiffs' solicitors, either as the source of the communication (Document 7.003) or as a recipient of the communication (Documents 7.0002, 7.003, 7.0020 and 7.0026). Given the claim for privilege and the timing of the communications in question,[9] it is likely that those communications constituted, evidenced or (more generally) related to instructions or facts upon which Mr Brewster or Mr Huybregts based their expert opinions. The reference in the description of Category 7 to the 'hypothetical development of the Blue Horizons Estate' supports the inference that the communications in question related to the preparation of the expert witness statements.

19 Nonetheless, if the plaintiffs now wished me to do so, I would be prepared to view the documents in Category 7 before making any order in relation to them in order to satisfy myself fully that the documents contain material giving rise to the implied waiver.

[1] Affidavit of Richard Brewster sworn 28 August 2010, Exhibit RB3.

[2] Affidavit of Neil Huybregts sworn 2 July 2012, Exhibit NH3 (Export Report dated 19 February 2010).

[3] [2000] VSC 353 ('Cobram Laundry Services').

[5] [2003] FCA 804.

[8] Cobram Laundry Services Pty Ltd v Murray Goulburn Cooperative Co Ltd [2000] VSC 353, [58].

[9] 12 October 2009, 13 October 2009, 14 October 2009, 11 January 2010 and 15 February 2010.