Renehan v Leeuwin Ocean Adventure Foundation Ltd & Anor [2005] NTSC 18

IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

Renehan v Leeuwin Ocean Adventure Foundation Ltd & Anor [2005] NTSC 18

No. 33 of 1998 (9803191)

BETWEEN:

TRACEY ANNE RENEHAN BY HER LITIGATION GUARDIAN GERALDINE RENEHAN

LEEUWIN OCEAN ADVENTURE FOUNDATION LTD (ACN 009 105 677)

Second Defendant

CORAM: MILDREN J

REASONS FOR RULING

(Delivered 4 April 2005)

[1] This is an application by the first defendant that the plaintiff provide for inspection four medico-legal reports from a psychiatrist, Dr David Kutlaca, dated respectively 22 March 1999, 30 March 1999, 20 April 1999 and 8 October 1999.

[2] The first defendant relies upon the affidavits of Dr Kutlaca, sworn 21 March 2005, and of Mr Grove, the solicitor for the first defendant, sworn 18 March 2005.

[3] The plaintiff maintains that the reports are subject to legal professional privilege as the reports were made on behalf of the plaintiff at the request of the plaintiff's legal advisors for the purpose of preparing the case for trial. On 24 March 2005, I ruled that the reports were privileged and that the privilege had not been waived. I said I would later publish my reasons. These are those reasons.

[4] It is not in dispute that at the time when those medical reports were prepared and delivered to the plaintiff's solicitors the reports were subject to legal professional privilege. Clearly medical reports made on behalf of a party to litigation on the advice of that party's legal advisors and made for the dominant purpose of preparing a party's case for trial are privileged: see Coles Meyer v Bailey (1991) 1 NTLR 86 at 89. Privilege does not depend upon the status of the documents as being medical reports; any expert report prepared at the request of a party to litigation for the dominant purpose of preparing a party's case for trial is privileged, regardless of the kind of expertise of the relevant expert: see for example Walsham v Stainton [1863] EngR 1075; (1863) 2 H&M 1; 71 ER 357 at 358; Interchase Corp Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No. 1) (1999) 1 Qd.R 141; Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804; (2003) 46 ACSR 438 at 441-442.

[5] After receiving these reports the plaintiff's solicitors prepared a draft statement which the plaintiff's solicitors requested Dr Kutlaca to sign. According to the affidavit of Mr Lindsay, the solicitor for the plaintiff, there were several long attendances on Dr Kutlaca in 1999 and in 2000 with a view to finalising a witness statement for him and two or three successive drafts statements were provided to him for his consideration. One such draft was sent to him by letter of 10 February 2000. It is apparent from that letter that that particular draft was not final as the letter enclosing the draft refers to a possible meeting for a final time to complete the statement.

[6] It is not clear on the evidence whether a further meeting ever took place, but a version of Dr Kutlaca's statement dated 24 February 2000 was prepared and, according to Dr Kutlaca, was never sent to him. It is clear however that he declined to sign the earlier statements as those statements did not completely reflect the opinions that he held. It is also clear that he did have a conference with Ms Alison Lowrie, one of the plaintiff's solicitors on 3 February 2000.

[7] In any event the unsigned statement dated 24 February 2000 which, I infer, contains some alterations as a result of the meeting on 3 February was subsequently discovered to the defendant by letter dated 16 March 2000. No claim for privilege was made. It is not suggested that the lack of a claim for privilege was accidental.

[8] At a latter time the plaintiff prepared a document entitled "Plaintiff's Expert Reports for Exchange" which was forwarded to the solicitors for the defendants by letter of 26 February 2004.

[9] It is plain that that document does not include a copy of any of the reports of Dr Kutlaca; nor does it refer to the unsigned statement of Dr Kutlaca dated 24 February 2000.

[10] In the statement of 24 February 2000 there is no reference to any of the earlier reports. Mr Macnish, junior counsel for the first defendant submits nevertheless that it is a fair inference that much of the material contained in that statement was distilled therefrom. He submitted that the disclosure of the statement of 24 February amounted to an unqualified waiver of the reports which were the origin of the statement of 24 February. It was his submission that the discovery of the statement carried with it an express waiver of the privilege attached to the earlier reports.

[11] I do not consider that there has been any express waiver of the privilege attached to the earlier reports. The question which is to be asked is whether there has been an implied waiver of the privilege.

[12] In this respect it must be remembered that the plaintiff has not attempted to use the statement of Dr Kutlaca in evidence and does not intend to call Dr Kutlaca. Whilst this is a relevant consideration, there is no inflexible rule that there is no waiver of associated material until that material is adduced in evidence: see Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 483.

[13] Whether there has been waiver of legal professional privilege by imputation or implication of law is, as was held in Attorney-General (NT) v Maurice, based upon notions of fairness. As Gibbs CJ said in Attorney-General (NT) v Maurice at 481:

The decisions in which this question has been considered seem to me to be particular applications of the rule that in a case where there is no intentional waiver the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production.

[14] In the same case Mason and Brennan JJ said at 487:

A litigant can of course waive his privilege directly through intentionally disclosing protected material. He can also lose that protection through a waiver by implication. An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege.

Waiver of legal professional privilege by imputation or implication of law is based on notions of fairness. It occurs in circumstances where a person has used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage. Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege.

[16] In Goldberg v Ng & Ors [1995] HCA 39; (1995) 185 CLR 83, Toohey J said at 109-110:

Implied or imputed waiver will ordinarily arise when partial disclosure of privileged documents is made in the proceedings in which the privilege is asserted. That was the situation in Maurice in the context of the hearing of a claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and, in my view, the judgments in that case must be read accordingly. It was also the situation in Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529; [1981] 2 All ER 485 where part of a document was read to the court by counsel. Where that sort of thing occurs, it is appropriate for the court or tribunal to consider whether it is fair that the party making the partial disclosure should otherwise maintain the privilege or whether fairness, in particular fairness to the other party, demands that the privilege be foregone. That question will usually be answered by seeing whether the party making the disclosure gained some advantage in the proceedings or, obversely, whether the other party suffered a disadvantage thereby.

[17] In my opinion there was no advantage gained by the plaintiff in disclosing the draft statement. It was plain on its face that the statement was unsigned. It was made plain at a time well before the commencement of trial that the plaintiff did not intend to rely upon the draft and was not intending to call Dr Kutlaca. There is nothing in the draft that refers to the earlier reports. It is difficult to see how the plaintiff obtained an advantage or the defendant a disadvantage as a result of the disclosure.

[18] I note for instance that mere reference to a privileged document in a pleading does not give rise to any implied waiver. As Gibbs CJ said in Attorney-General (NT) v Maurice at 481:

Thus it has been held that the privilege in respect of a document is not waived by the mere reference to that document in pleadings Roberts v. Oppenheim (1884) 26 Ch.D. 724; Buttes Oil Co v. Hammer [No. 3] [1981] Q.B. 223 at pp. 252, 268) or in an affidavit (Lyell v. Kennedy (1884) 27 Ch.D. 1, at p. 24; Infields, Ltd. v. P. Rosen & Son [1938] 3 All E.R. 591, at p. 597; Tate & Lyle "International Co. Ltd. v. Government Trading Corporation", The Times, 24 October 1984), although the position will be different if the document is reproduced in full in the pleading or affidavit: Buttes Oil Co. v. Hammer [No. 3] [1981] Q.B., at p. 252. These cases may be explained by saying that it is not unfair or misleading to refer to a document in a pleading or affidavit which is not put into evidence but that if the document is set out in full the privilege is waived. A fortiori, of course, privilege in respect of materials used in drawing a pleading or an affidavit and not referred to therein, would not lose their privilege because they had been used in that way.

[19] Similarly a statement taken from a witness does not lose its privilege merely because the witness is called to give evidence.

[20] The same may be said of draft statements or documents. As Dawson J said in Attorney-General (NT) v Maurice 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 p. 4 [1863] EngR 1075; [71 E.R. 357, at p. 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".

[21] Similarly, it seems to me that in circumstances where a solicitor prepares a number of drafts of a witness statement with the intention that the final product is to be disclosed to the other side does not have the result that there is an implied waiver of the drafts merely by disclosure of the final product. Analogously, that seems to me to be the same in principle to the case at Bar. The original reports were privileged and have obviously been treated as drafts upon which the final statement was to be produced. That fact that the final statement was released therefore does not give to rise to implied waiver of the drafts. Applying the fairness test in Attorney-General (NT) v Maurice, I am unable to see how there is any unfairness in the circumstances of this case in the plaintiff maintaining the privilege. On the contrary, disclosure would disclose "the precise character of confidential communications with the solicitor by showing alterations made" from the original reports as appears from the statement dated 24 February 2000.

[22] During the course of argument reference was made to a passage in Australian Securities and Investments Commission v Southcorp Ltd at 442 when Lindgren J said:

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.

[23] I think that case must be looked at in context because the drafts that were being there considered never formed the basis of a communication between the expert and the solicitors concerned. That is not the case here.

[24] Accordingly, I rule that legal professional privilege in the original reports of Dr Kutlaca has not been waived either expressly or impliedly.

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