Let me explain why this is so. The context in which this question arises in the present case, as in all the recent cases, is experts' reports. Courts need as much information and assistance as possible. If an expert's report is obtained, the judge wishes to know what the report says. But this does not reveal a problem whose solution requires abrogating or overriding legal professional privilege, in whole or in part. There is no need for this radical departure from established principle. Parties are not able to suppress the evidence of an available expert. The views of the expert, if desired, can always be made available within the existing legal framework. In the time honoured aphorism, there is no property in a witness. The fact that an expert or other potential witness has already been approached by one party, and given a statement to that party, does not excuse him from giving evidence at the hearing at the behest of another party. If necessary his attendance can be compelled by service of a subpoena. He cannot be required to disclose the contents of communications between himself and the first party's legal adviser. But his evidence on the issue before the court, which is all that is material, can be compelled.
58 There is no reference to the problem that the expert opinion being discussed is itself based in part on privileged communications; but plainly it is assumed that this is not an absolute bar to the expert giving evidence of the opinion.
59 While the above is my tentative view, I acknowledge that there is force in the contrary arguments advanced by Ipp AJA in his judgment. However, I am inclined to the opinion that there is a substantial difference between an expert opinion based on actual observations, where the expert is precluded from giving the details of those observations, and an expert opinion based on assumed facts which are not proved in evidence. In any event, I agree with Ipp AJA that this case does not require a final determination of this matter.
60 It may well be that the admissible evidence would not have been sufficient to convince the primary judge to make the orders sought. However, it would have been sufficient, in my opinion, at least to justify an order that the appellant be medically examined under Pt.25 of the Supreme Court rules; and, had the objections been taken, it seems highly probable that the respondent would have sought such an order. Having regard to the consistency of the material that was in fact admitted below, it seems likely that the result would have been a similar opinion that would plainly have been admissible.
61 Because of the different course that the proceedings would probably have taken below, the probability of a similar result in the end, and the further distress likely to be caused by providing for a re-hearing of the whole interlocutory application, I do not think the objections to evidence which were not taken below should be permitted to be raised now on appeal.
62 Turning to the second ground of appeal, in my opinion it is clear that the appellant is on no stronger ground in relation to claims based on the protected report provisions of the Evidence Act (ss.126A and 126B) than in relation to claims based on the client legal privilege provisions; and I do not think it is necessary to consider that matter in any detail. In particular, I do no think that the primary judge should, on his own initiative, have considered whether he was dissatisfied as to the matters set out in s.126B(3)(a) and (b).
63 Coming to the third ground of appeal, and the matter of confidentiality and conflict of interest questions generally, the case of McD v. McD does assert that, in situations like this, applications under the Protected Estates Act should not be brought by solicitors against their own clients, at least if there is any reasonable alternative. Leave was granted in relation to this question only on the question of principle, and not on the question whether possible alternatives had been sufficiently explored in this case. Evidence was submitted on behalf of the appellant and also the respondent concerning the issue whether the respondent had in this case taken adequate steps to find some alternative person to bring the proceedings, but having regard to the basis on which leave was granted, the Court did not permit that evidence to be read.
64 McD did not purport to impose any absolute rule against solicitors bringing such an action, and I do not think this Court should suggest that there is an absolute rule against such actions being brought. The bringing of such actions is extremely undesirable because it involves the solicitor in a conflict between the duty to do what the solicitor considers best for the client and the duty to act in accordance with the client's instructions; and also because of a possible conflict between the solicitor's duty to the client and the solicitor's interest in continuing to act in the proceedings in question and to receive fees for this. Of course, where as in this case the order sought is for the appointment of the Protective Commissioner to be receiver and manager of the client's estate and to have control of the Court proceedings, the Protective Commissioner may, if this is considered to be in the client's interest, then dismiss the solicitor and either give effect to the client's wishes in the matter or engage other solicitors.
65 However, there being no absolute rule precluding solicitors bringing such an action, I do not think a ground is shown for interfering with the result at first instance on this basis.
66 There remains the question whether the respondent has misused confidential information in bringing the proceedings, upon the basis of general law principles about the obligations of persons having confidential information, quite apart from restrictions on disclosing or giving in evidence of matters the subject of legal professional privilege. In relation to these principles, in my opinion there is room for the adoption of the approach taken in cases such as Church v. Price, to the effect that the solicitor's concern for the interest of the client, so long as it is reasonably based and so long as it results in no greater disclosure of confidential information than absolutely necessary, can justify the bringing of proceedings and such disclosure of confidential information as is absolutely necessary for the purpose of such proceedings.
67 In the result, the only error I have found was the admission of Dr. Dyball's report. In my opinion, it is unlikely that the admission of that report made a difference in the result: the issue before the Court was whether there was a serious question to be tried and what should be done on the balance of convenience; and the appellant's failure to tender Dr. Dyball's report would have supported a Jones v. Dunkel inference. Part 51 r.23 of the Supreme Court rules provides that this Could should not order a new trial on the ground of improper admission of evidence unless it considers some substantial wrong or miscarriage has been occasioned thereby; and the same must apply in relation to an order for a new hearing of an interlocutory application. For those reasons, I do not think the error involved in admitting Dr. Dyball's report is sufficient to require this Court to re-visit the matter and exercise a discretion on its own part, or to send the matter back for a further exercise of discretion.
68 This decision does not itself absolutely preclude an application being made in the Equity Division to vacate or vary the interlocutory order, on the ground that the order was partly based on evidence wrongly admitted and/or that circumstances have changed; although I would not wish to encourage such an application, much less to suggest that it has any chance of success. However, this case concerns important issues for the appellant, and the service of the reports of Dr. Bell and Dr. Lewin could, notwithstanding Sevic v. Roarty, lead to irrecoverable loss of privilege. The District Court case will now not be heard until June 2002. I would be prepared to order that the reports not be served prior to 15th March 2002, so as to give the appellant a chance either to apply in the Equity Division to vacate or vary the order or else to seek special leave to appeal to the High Court.
69 So the orders I propose are:
1. Appeal dismissed with costs.
2. Order that the reports of Dr. Bell and Dr. Lewin not be served prior to 15th March 2002.
70 IPP AJA: I agree with the reasons to be delivered by Hodgson JA save that I have come to a different conclusion as to the admissibility of the opinions of Dr Bell and Dr Lewin.
71 Section 119 of the Evidence Act 1995 provides:
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b) the contents of a confidential document (whether delivered or not) that was prepared;
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
72 The opinions of Dr Bell and Dr Lewin were formed, at least to a substantial extent, on the basis of confidential communications falling within the categories described in s 119. Those communications were made by the appellant for the dominant purpose of being provided with professional legal services relating to "an Australian … proceeding" in which the appellant was a party. Accordingly, those communications, upon objection, could not be adduced in evidence.
73 However, the opinions of Dr Bell and Dr Lewin (divorced from the communications on which they were based) were not themselves confidential communications covered by s 119.
74 The Evidence Act does not contain any provisions concerning the admissibility of expert opinions, which are not confidential communications covered by s 119, but which are based on, or substantially based on, confidential communications that do fall within that section.
75 Section 9 (1) of the Act provides:
This Act does not affect the operation of a principle or rule of common law … in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.
76 Accordingly, in my opinion, the answer as to whether the opinions formed by Dr Bell and Dr Lewin are admissible in evidence must be sought from the common law.
77 At common law, expert opinion based on inadmissible hearsay evidence is itself inadmissible: Ramsay v Watson (1961) 108 CLR 642, Steffen v Ruban (1966) 84 WN (Pt 1) NSW 264, Pownall v Conlan Management Pty Limited (1995) 12 WAR 370.
78 In Ramsay v Watson (at 649) the High Court said:
Hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician. And, if the man who the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician's opinion may have little or no value, for part of the basis of it has gone.
79 In my reasons in Pownall v Conlan Management Pty Limited (with which Malcolm CJ agreed) I held that expert opinion based entirely on inadmissible evidence was itself inadmissible and there was no discretion to admit it. I explained this conclusion as follows (at 377):
I form this view as to admit such an opinion would be to admit, indirectly, the inadmissible evidence itself. If an opinion, based solely on evidence that the court by law is required to exclude, is itself admitted, the inadmissible evidence would have some influence over the court's decision. Such a result would defeat the purpose of the law that excludes the inadmissible evidence. If the primary facts on which the evidence is based are not admissible, the opinion is valueless and irrelevant and, in my opinion, should be excluded. It is for this reason that the Court of Appeal in R v Turner [ (1975) QB 834] observed (at 840) that an expert in examination-in-chief should be asked to state the facts on which his opinion is based, and that it was wrong to leave it to the other side to elicit the facts by cross-examination. It is only when the primary facts upon which the opinion has been based are established that the opinion should be admitted into evidence.
80 I went on to hold (at 377-78) that where the expert opinion is based only partly on inadmissible testimony and that inadmissible testimony can readily be ascertained and discarded, the opinion should be admitted subject to weight. Where the expert opinion is based on a combination of admissible and inadmissible material, and it is impossible to determine what conclusions are based on the expert's own observations and what conclusions are based on what he has been told, or to what degree the expert has been influenced by the hearsay material, the evidence should be excluded: see Steffen v Ruban.
81 In the same case, Anderson J (at 388) said that the preponderance of authority was to the effect that opinion evidence based on hearsay should be excluded.
82 I have mentioned that the opinions of Dr Bell and Dr Lewin, at least to a substantial extent, were based on privileged communications. It is not possible to determine with any reliability whether either of them relied on any admissible material, and, if so, to what extent such admissible material influenced their opinions.
83 On the authorities to which I have referred, it is plain that, had the communications on which Dr Bell and Dr Lewin relied been inadmissible on the grounds of hearsay (and not by reason of privilege in terms of s 119), their opinions, themselves, would be inadmissible.
84 I see no difference between the validity of expert opinion based on inadmissible hearsay evidence and that of expert opinion based on evidence that is inadmissible by reason of privilege (whether under s 119 of the Evidence Act or at common law). The rationale for excluding the opinion evidence remains the same.
85 In the circumstances, in my view, if objection had been taken to them, the primary judge should have excluded the reports of Drs Bell and Lewin entirely.
86 Nevertheless, for the reasons set out by Hodgson JA in paragraph 57 of his reasons, the views I have expressed above do not lead me to conclude that orders should be made different to those proposed by his Honour. Accordingly, I agree with the orders proposed by him.