Radovanovic Bhnf Anton Radovanovic v Cutter & ACT Health Authority [2001] ACTSC 16

1. This is a motion for particular discovery arising from the first defendant making available to the plaintiff a number of documents. Two of those documents were previously discovered in the only discovery which took place in this matter. By affidavit of discovery dated 26 February 1986, the first defendant discovered correspondence since 23 December 1985 with expert witnesses. At that time, the only documents of the ones now made available were a letter of 23 December 1985 from the first defendant's solicitors to Professor Bennett (MFI 11A(1)) and his reply dated 26 February 1986 (MFI 10A). MFI 10A is in two parts: MFI 10A(1) is an edited version of that letter, MFI 10A(2) is unedited, legal professional privilege ("privilege") is claimed in respect of the matters deleted from MFI 10A(1).

2. The first defendant also now discovers a letter of 10 April 1991 from the first defendant's solicitors to Professor Bennett containing qualifying correspondence (MFI 12A(1)). That qualifying correspondence in respect of a letter by the first defendant to his solicitors of 15 March 1990 (MFI 12(2)) is edited to take account of the claim for privilege now made but waived in respect of parts of the letter. The unedited letter has been marked MFI 12A(3). A further letter from the first defendant to his solicitors of 16 April 1990 is marked MFI 12A(4) but privilege is claimed in respect of the whole of that document.

3. A file note of meetings that occurred on 25 March 1991 between the first defendant, his legal advisers and others (including Professor Bennett for some of the time) has been edited to take account of the privilege not waived and is marked MFI 12A(5). The unedited version is marked MFI 12A(6). The letter from Professor Bennett of 23 April 1991 in response to the letter of 10 April 1991 (MFI 12A) is marked MFI 13A(1) but is edited to remove the Professor's comments and opinions of those paragraphs of the statement of claim which have now been deleted.

4. The full text of that letter was served pursuant to Supreme Court Rules O39 r46 and for the purpose of this application, is before me as MFI 13A(2). A further letter dated 18 May 1999 from Professor Bennett to the first defendant's solicitors is now discovered (MFI 14A) but I understand that Mr Higgs SC for the first defendant will not seek to tender it and does not consider it to be a report to be served under O39 r46.

5. The letter MFI 10A is in response to the letter to Professor Bennett from the first defendant's solicitors dated 23 September 1985. Any claim for privilege has been waived in respect of that letter. I have no difficulty in accepting that initially Professor Bennett's letter attracted a claim for privilege.

6. Legal professional privilege embraces communications passing between a party, the party's legal representatives and third persons made with reference to pending litigation for the purpose of preparing the party's case (see Ritz Hotel v Charles of the Ritz (1988) 14 NSWLR 132 per McClelland J). The letter to Professor Bennett asks for "a report in the usual terms on the allegations against our client". Professor Bennett's response of 16 January 1986 (MFI 10A) is couched in terms responding to the various paragraphs of the statement of claim in respect of the litigation between the parties in this case.

7. Since that time, the statement of claim has been amended on six further occasions. A written amended statement of claim was dated 15 August 1990 and a further amended statement of claim filed on 25 May 1999. However, it was not until a further second amended statement of claim was filed in court on 17 October 2000 that any of the paragraphs of the particulars of negligence were deleted.

8. The Supreme Court Rules, by O39 r46(1) provided for the service of expert's reports in the two months before the date fixed for determining the trial date. Leave to apply to the List Clerk for a hearing date was given on 17 December 1999 and on 12 May 2000 the trial date was set. The first defendant served three reports made by Professor Bennett. They were in the form of letters to the first defendant's solicitors of 23 April 1991, 21 May 1999 and 5 September 2000. The letter of 23 April 1991 is now before me as MFI 13A(2). It deals with the various paragraphs of the particulars of negligence in the statement of claim in the same form as the letter of 16 January 1986 (MFI 10A) does. There is no reference in the letter of 23 April 1991 to that earlier letter. Mr Higgs SC now seeks to excise from the letter of 23 April 1991 those parts referrable to the particulars of negligence that have now been deleted from the statement of claim. He does so on the grounds that they are no longer relevant. That may be true, but they were relevant when the report was made and when it was served. Mr Higgs SC submits that the purpose of the excision is to maintain the claim for privilege in respect of those parts of the qualifying material that relate to those particulars upon which now no reliance is placed. I shall return to that aspect later.

9. The issue in respect of the letter of 16 January 1986 is whether it is an "expert's report" for the purpose of O39. Order 39 r1A defines expert's report as meaning:

"a statement in writing by an expert and, where the expert has made more than one statement, each such statement which sets out the expert's opinion and the facts upon which the opinion is formed and which contains the substance of the expert's evidence which the party serving the statement or statements and intends to adduce in chief at the trial".

Mr Higgs SC argues that the 1986 letter does not contain the substance of the expert's evidence which the party serving the statement or statements intends to adduce in chief at the trial. He disavows any intended reliance on the statements made in that letter by Professor Bennett.

10. The difficulty that I see is that the 1986 letter comprises the same particulars of negligence that the report of 23 April 1991 does. The substance of the expert's evidence for the purposes of the definition is the opinion and comment of each of the particulars of negligence. The fact that Professor Bennett may be led in examination in chief only in terms of the report of 23 April 1991 does not mean that the comment and opinion expressed in the earlier letter on the same matters is not part of the substance of his evidence. I add to that the fact that the requesting letter specifically sought "a report in the usual terms". That seems to me to be relevant in characterising the letter of 16 January 1986 as something more than consultation and advice.

11. I note too that O39 r49(1)(b) permits a party served with an expert's report to tender the report. That seems to envisage the potential for a report being unfavourable to the party who serves it. I do not think that O39 permits a party to be selective about which one of more than one of a particular expert's reports it may serve.

12. Mr Donohoe QC, for the second defendant, drew my attention to the comments of Dawson J in Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 496:

"Before it emerges in its final form, successive drafts of a claim book may be privileged but this is not because of any privilege attaching to the final product. Draft pleadings in an action may be privileged, but I have never heard it suggested that a statement of claim or a defence or a reply is privileged so that the privilege is waived when it is filed or delivered to the other side. The reason why the draft may be privileged before the document is completed was early explained in Walsham v Stainton [1863] EngR 1075; (1863) 2 H & M 1 at 4 [71 ER 257 at 358], upon the basis that, although after a pleading has been filed it becomes publici juris, the drafts "might disclose the precise character of confidential communications with the solicitor, by showing the alterations made from time to time". In the same way a letter to the other side in litigation which is drafted in a solicitor's office may be privileged before it is sent because it may reveal confidential communications between the solicitor and his client. Once it is sent, however, it ceases to be confidential and there is no privilege in it, not because privilege in the document is waived, but because no privilege attaches to it."

13. I do not regard the 1986 letter as a draft or a draft pleading. Once it was compiled as a "report in the usual form", it became an expert's report for the purposes of O39 to be served should it be intended that the expert be relied upon at the trial.

14. That being so, I consider that the 1986 letter should have been served with the other three reports. On such service, privilege would be waived. Cf Cross on Evidence, Australian Edition [25225] at 25,102. It follows that I do not consider that the first defendant's claim for privilege in respect of that document can be maintained.

15. Nor, as I foreshadowed, do I consider that because it refers to paragraphs of the statement of claim which have now been deleted, that the document should be edited to delete those matters. The report of 23 April 1991 (MFI 13A) addresses the amended statement of claim in respect of all paragraphs subsequently deleted and if the 1986 letter had been served when it should have been, it too would have had to address those paragraphs.

16. The position as to the claim of privilege in respect of the letters of the first defendant to his solicitors and the conference file note is somewhat different. They constitute part of the qualifying material for the report of 23 April 1991 (MFI 13A(2)). But as that report addresses paragraphs of the statement of claim now deleted, it cannot necessarily be said, insofar as the qualifying material was directed to those deleted paragraphs, it was relied upon in respect of the others.

17. In this case, the privilege attaching to "source" material is not subject to express waiver but rather waiver by implication. The debate is whether the waiver only arises when the material is "deployed in court" and what that expression might mean (see the discussion by Sheller JA in Sevic v Roarty [1998] NSWSC 462; (1998) 44 NSWLR 287 at 297 and 298). In the circumstances of this particular case, where material deals with particulars of negligence that are now deleted, I am not prepared to too readily infer that waiver has taken place. I refer to the remarks made by Toohey J in Attorney-General for the Northern Territory v Maurice: Re The Warumungu Land Claim (1986) 10 FCR 134 at 146,

"Waiver occurs, at any rate in the case of legal professional privilege, by the offer of testimony as to specific facts or specific communications and the question then arises as to what facts and communications thereby become admissible though otherwise the subject of privilege. While the giving of testimony is the usual way in which waiver occurs, circumstances giving rise to waiver are not quite so confined. Thus, in Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corp_, Mustill J at 139 used expressions such as "whether the plaintiffs have made use of the boatswain's statement before the face of the court" and "... where a party chooses to deploy evidence which would otherwise be privileged the court and the opposition must, in relation to the issue in question, be given the opportunity to satisfy themselves that they have the whole of the material and not merely a fragment". Thus waiver may occur through cross-examination or by the tendering of a document."_

And see generally the discussion of General Accident Assurance Fire & Life Assurance Corporation Ltd v Tanter (The Zephyr) [1984] 1 WLR 100, [1984] 1 All ER 35 in Cross on Evidence, Australian Edition [25015] at 25,019

18. Here, I think, it very much depends upon what was relied upon for the opinions that may be led from Professor Bennett as to whether it was fair or otherwise to maintain the privilege in respect of those matters not now in issue.

19. At this stage I do not regard privilege as being waived as to those parts of the source material that relates to the deleted paragraphs of the statement of claim.

20. The final matter is the status of the letter from Professor Bennett to the first defendant's solicitors of 18 May 1999 (MFI 14A). Mr Webb QC for the plaintiff, argues that it is an expert's report in the terms of Supreme Court Rules, O39. I do not regard it as such. I have found that the 1986 letter constitutes such a report but I do not think that every consultation with or the obtaining of evidence from a person to be called as an expert will necessarily be such. I note that Mr Higgs SC is not proposing to seek to tender the report and that it deals solely with comment upon a report provided by Dr Beavis.

21. In my view, advice from an expert of the nature sought can properly be the subject of a claim for legal professional privilege. Privilege has, in fact, been waived in respect of this document and the plaintiff now has the advantage of the knowledge of its contents.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Counsel for the plaintiff: Mr Webb QC with Mr D Graham

Solicitor for the first defendant: Tress Cocks & Maddox

Counsel for the second defendant: Mr P Donohoe QC with Ms P Burton

Solicitor for the second defendant: ACT Government Solicitor