Roads Corporation v Love [2010] VSC 253

LEGAL PRACTITIONERS - Legal Professional Privilege - Evidence Act 2008 s.119 - Communications with prospective witness - Proper practice for legal practitioners to take proofs of evidence from witnesses separately and to encourage witnesses not to discuss their evidence with others, and particularly with other potential witnesses - Meeting of expert witnesses convened in part to discuss evidence in preparation for filing reports improper - Conduct amounted to inconsistency with maintenance of privilege pursuant to Evidence Act 2008 s.122(2).

1 This ruling concerns legal professional privilege. The principal issues are whether the privilege can be maintained in respect of documents relating to a witness who is subsequently called to give evidence at the trial of a proceeding and in respect of pre-trial communications occurring at meetings of expert witnesses engaged by a party.

2 It has been long held that the public interest in promoting frankness in communications between lawyers and clients, in the usual case, overrides the public interest in courts and other decision makers having before them all relevant information to enable them to make the correct decision. The legal professional privilege is thus a very powerful privilege. It enables lawyers and their clients to make frank assessments about their legal position and their prospects in legal proceedings, safely in the knowledge that their communications will be protected. The privilege is also unique. There are no equivalent privileges for other major professions such as accountants, even if the accountant gives similar advice, for example in relation to the operation of a piece of taxation legislation.[1]

3 However, just as the the rationale for the existence of legal professional privilege has been explained in terms of promoting the public interest in free and frank discussions between a client and his or her legal adviser, so there can arise circumstances where the public interest is advanced by full disclosure of such communications, which interest outweighs the maintenance of the privilege. Some examples of competing public interest considerations which militate against the operation of the privilege are to be found in the Evidence Act 2008, where a range of circumstances in which the privilege will be lost receive statutory recognition.[2]

4 In a frequently cited passage in the judgment of Stephen, Mason and Murphy JJ in Grant v Downs,[3] the High Court put the public interest in the existence of the privilege matter in this way:

The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision. None the less there are powerful considerations which suggest that the privilege should be confined within strict limits.

5 The tension between competing public interests arising in the application of legal professional privilege was addressed by Deane J in Baker v Campbell[4] where it was said:

A person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication. The obvious tension between this policy and the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case lies at the heart of the problem of the scope of the privilege. Where the privilege applies, it inhibits or prevents access to potentially relevant information. The party denied access might be an opposing litigant, a prosecutor, an accused in a criminal trial, or an investigating authority. For the law, in the interests of the administration of justice, to deny access to relevant information, involves a balancing of competing considerations.

6 As is well known, in broad terms, legal professional privilege at common law protects communications, whether oral, written or electronic, passing between a lawyer and a client in two situations. The first embraces communications which are directed to the provision of legal advice to a client (the "advice privilege"). The second relates to communications which are undertaken for the purpose of existing or anticipated legal proceedings (the "litigation privilege"). Both forms of the privilege are now to be found in the Evidence Act 2008. Section 118 provides for the advice privilege, and s.119 provides for the litigation privilege. These sections are set out below:

118. Legal advice

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 made between the client and a lawyer; or

(b) a confidential communication made between 2 or more lawyers acting for the client; or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person-

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

119. Litigation

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.

7 On the twelfth day of the trial, 8 June 2010, a geologist called by the respondent, Mr Basil Natoli, was cross-examined. A document was put to him by junior counsel for the applicant, Mr Batt. The document was a redacted version of an agenda for a meeting conducted on 14 March 2006. The agenda was produced in this version following objection taken by the respondent, who claimed a legal professional privilege in respect of the document, and following a determination of that claim by Daly AsJ.

8 In its redacted version, the agenda document described the following items for discussion:

Basil Natoli - briefly describe the detail of Work Plan for WA658, in particular emphasising

1. The buffers which had been allowed on all sides;
2. The quality of the stone;

1. Going over his responses to the issues raised by Mike Cameron & McClellan

General discussion [with] to flush out any problems with an aim to get everyone in accord with the position that there was a quarry which should be valued as such and the land to the west of the Bypass has been severed from future urban development for a long time with its strategic direction being Recycling etc.

9 The agenda document was printed out for Mr Natoli.

10 The meeting was held on 14 March 2006. The respondent Mr Love said that he initiated and convened the meeting. Mr Natoli agreed that he met on that occasion with the respondent, Mr Love, a number of the experts engaged by the respondent, and the respondent's lawyers for a briefing relating to the present proceeding. In addition to Mr Natoli, he following experts who had been engaged by Mr Love for the purposes of this proceeding, attended the meeting: Mr Leonard (hydrology); Mr Borelli (town planning); Mr Hocking (valuer); and Mr Haye (valuer). Mr Love was not certain whether one of his quarry operations expert witnesses, Mr Martin, was also present. However, he did say in his submissions that a number of the experts which he had engaged did not attend the meeting.

11 One of the things that Mr Natoli was to do at the meeting, as evidenced by the agenda which had been prepared, and did in fact do, was to emphasise the quality of the stone resource on the subject land. This is one of the critical issues in the proceeding.

12 As to the discussion at the meeting, Mr Natoli said:

I think for a number of the experts, from what I can recall of the meeting, um, many had very little understanding of what the quarry proposal was and the idea from what I can recall was just to familiarise them with what was proposed so that they could understand in preparing their reports what the issues were.

13 A handwritten note of the meeting was referred to by Mr Love in his submissions. The origin of the note is uncertain. Mr Love submitted that the note evidenced that the purpose of the meeting was purely "factual" to bring the parties up to date of relevant information. A memorandum prepared by Mr Love's solicitor at the time dated 8 March 2006 appears to bear out this contention, which was referred to by Mr Love in his submissions.

14 However, Mr Natoli's evidence, which he gave in the course of his cross-examination to which I have already referred, must also be considered. Mr Love said that Mr Natoli was present at the meeting, that he led some of the discussion, and at one stage he "held the floor".

15 Although I accept that, at least in part, the purpose of the meeting was as Mr Love described it, I do not accept that this was the only object which was achieved.

16 I also accept at the meeting there was a general discussion amongst the experts present in order to "flush out any problems with an aim to get everyone in accord with the position that there was a quarry which should be valued as such". This was referred to in the agenda prepared for or by Mr Natoli.

17 The respondent has objected to further cross-examination on the meeting on the ground that the communications exchanged at the meeting are the subject of a legal professional privilege which he claims.

18 On the thirteenth day of the trial, 9 June 2010, the applicant sought to tender three documents relating to or arising from an earlier meeting conducted on 14 December 2004. The documents were derived from the file of a planning consultant engaged by the respondent, Mr Phillip Borelli. Mr Borelli gave evidence on behalf of the respondent on day 11 of the trial, 7 June 2010. The three documents were:

1. A handwritten file note which on its face appears to have been written by Mr Borelli. The file note records an attendance at a meeting with another planning expert engaged by the respondent, Mr Jacob Kraan. Mr Kraan was called by the respondent to give evidence at the trial commencing on 9 June 2010. He has not yet completed his evidence. Also recorded as being present at the meeting was a valuer, Mr Hocking, senior and junior counsel, and solicitors, who were then engaged by the respondent. Although Mr Love is noted by his initials "TL" in the note, he has no recollection or record of being present. For the purposes of these reasons, I am not satisfied that he was in fact present. One of Mr Love's solicitors recorded as being present was Mr Stephen Leonard;
2. A letter from the respondent's former solicitors to Mr Borelli dated 16 December 2004. The letter referred to a conference conducted on "15 December 2004" which, it was submitted, was incorrectly dated, as it should have referred to the 14 December 2004 meeting; and
3. A record of two emails. The first was sent by Mr Kraan (a town planning expert) to Mr Leonard (Mr Love's solicitor) dated 21 February 2005 which stated, amongst other things: "Please find attached my draft statement and the Appendix describing how the quarry could operate. They still need a good edit and polish and the appendices documents provided but they are sufficient to review given the time circumstances". The second was sent by Mr Leonard to Mr Borelli (another town planning expert), also dated 21 February 2005. It stated: "I have attached a draft version of the report prepared by Jack Kraan for your perusal".

19 The applicant also sought to tender a further document on 9 June 2010 comprising a chain of emails between Mr Kraan, Mr Leonard and Mr Borelli. The first email was dated 18 September 2006 and was sent by Mr Kraan to Mr Leonard and to the junior counsel then engaged by Mr Love. It included as an attachment Mr Kraan's draft report relating to "pre-acquisition steps". On 19 September 2006 Mr Leonard sent an email to Mr Borelli which stated: "Please find attached Jack Kraan's report in its almost final draft for your perusal. How far off is a further draft of your report?" On 26 September 2006 Mr Borelli sent a long one page email to Mr Leonard. In the email, Mr Borelli refers to communications with Mr Love and his "comments on my earlier (August) draft". Some eight points are made by the respondent which are each addressed by Mr Borelli, who appears to have accepted some of the input from Mr Love but not accepted other suggestions. The email concludes: "Please let me know what you think so I can finalise my revised report".

20 The respondent has also objected to admitting into evidence the documents sought to be tendered by the applicant on 9 June 2010 on the ground that the communications contained in the documents are the subject of a legal professional privilege.

21 In his submissions, Mr DJ Batt, Junior Counsel for the applicant accepted that the communications at meetings of 14 December 2004 and 14 March 2006 and the communications recorded in the further documents sought to be tendered on 9 June 2010 were privileged as they fall within the litigation privilege described in s.119(a) Evidence Act 2008. I accept this to be the position.

22 However, the applicant claims that the respondent has lost the legal privilege by the operation of s.122(2) Evidence Act. Section 122 provides:

1. Loss of client legal privilege-consent and related matters

(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.

(2) 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 section 118, 119 or 120.

(3) Without limiting subsection (2), a client or party is taken to have so acted if-

(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or

(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.

(4) The reference in subsection (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.

(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because-

(a) the substance of the evidence has been disclosed-

(i) in the course of making a confidential communication or preparing a confidential document; or

(ii) as a result of duress or deception; or

(iii) under compulsion of law; or

(iv) if the client or party is a body established by, or a person holding an office under, an Australian law-to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held; or

(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or

(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).

23 The first item of conduct relied upon by the applicant as constituting a waiver was the calling of the relevant witnesses to give evidence at the trial, namely Mr Natoli, who was called to give expert geological evidence, and Mr Borelli and Mr Kraan, who were both called to give expert planning evidence. As Warren J (as her Honour then was) observed in Cobram Laundry Services Pty Ltd v Murray Goulburn Co-Operative Co Ltd:[5]

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.

24 In Temwell Pty Ltd v DKGR Holdings Pty Ltd[6] Ryan J also relied upon the principles enunciated by the High Court in Attorney-General (NT) v Maurice[7] in concluding that:

it would be unfair for the claim of privilege to be sustained in respect of documents which record instructions, suggestions or information given or made to an expert witness or successive draft reports from which the development of his or her expert opinion can otherwise be inferred.

25 Further, in Australian Securities and Investments Commission v Southcorp Ltd,[8] Lindgren J helpfully summarised the following principles derived from his analysis of the case law 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 of Australia [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].

26 I have listened carefully to the submissions of Mr Love in this matter. 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. Indeed, as I take his submissions on the issue, Mr Love did not contend otherwise. The exception in s.122(2) of the Evidence Act therefore applies and the applicant is entitled to adduce evidence about the communications exchanged at the meeting of 14 March 2006 and the earlier meeting conducted on 14 December 2004 through cross-examination, and is also entitled to tender in evidence the four documents in issue.

27 The second category of conduct which constitutes a waiver arises from the convening of the meetings of experts which were conducted first on 14 December 2004 and then on 14 March 2006, which have already been described.

28 This conduct may gave rise to an imputed waiver of the litigation privilege which otherwise attached to communications exchanged at those meetings, such waiver, if it arose, occurred at the time when the meetings were convened. The conduct, which was engaged in by the respondent was arguably inconsistent with him objecting to the adducing of the evidence which he now seeks to exclude.

29 The problem of lack of objectivity in expert evidence is not new. The following lament was expressed by a judge over a hundred years ago:

Undoubtedly there is a natural bias to do something serviceable for those who employ you and adequately remunerate you. It is very natural, and it is so effectual that we constantly see persons, instead of considering themselves witnesses, rather consider themselves as the paid agents of the person who employs them[9].

30 The obligations and duties of an expert witness were prescribed in common law by Creswell J in National Justice Cia Naviera SA v Prudential Assurance Co Ltd ('The Ikarian Reefer').[10] The first three principles stated by his Honour are pertinent:

1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (see Whitehouse v Jordan [1980] UKHL 12; [1981] 1 WLR 246).
2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise (see Polivitte Ltd. v Commercial Union Assurance Co Plc [1987] 1 Lloyds Rep 379).
3. An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.

31 In 1994 Lord Woolf was commissioned to report on the state of the civil justice system in England and Wales. His final report ("Access to Justice") was published in 1996. The report, amongst other things, endorsed the Ikarian Reefer principles, and supported the introduction of changes to court rules to provide procedure for expert witness declarations, transparency of instructions to experts, and other reforms.

32 In Australia, the Australian Law Reform Commission conducted its review of the federal civil justice system between 1996 and 2000. Its final report in 2000 ("Managing Justice") recommended witness conferences, procedures for written questions from parties to experts, guidelines for witnesses, a code of practice to be developed by the Australian Council of Professions, single experts, and a panel format for giving evidence.

33 Alongside with this process of evaluation and review, new court rules governing the role of experts were introduced in Australian jurisdictions. The new rules emphasised a "paramount duty" of expert witnesses to the court and provided for published information to be given to prospective witnesses defining their functions and role.

34 New rules were introduced in Victoria which provided comprehensive ethical principles for the guidance of the expert witness and content of the report which the expert is to prepare. Pursuant to r.44.03(1)(a) of the Supreme Court (General Civil Procedure) Rules 2005 (the "Rules"), as soon as practicable after the engagement of the expert and before the expert makes a report under this Rule, the expert is to be provided with a copy of the Expert Witness Code of Conduct. The first two and central principles of the Code emphasize the independence with which an expert is to approach his or her task:

1. A person engaged as an expert witness has an overriding duty to assist the Court impartially on matters relevant to the area of expertise of the witness.
2. An expert witness is not an advocate for a party.

35 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.

36 Meetings between experts to be called by a party for the purpose of ensuring a "common line" in the case has a number of vices. The exercise is ultimately self-defeating. In the first place the essential independence of the witness is compromised - the witness is no longer giving exclusively his or her own opinion - the evidence is in danger of becoming a "team presentation". As a consequence, the overriding duty to assist the Court on the expert subject matter is compromised and the witness approaches the role of the advocate for the person retaining him or her. Secondly, adequate testing of the evidence and the information relied upon becomes problematic. The content of discussions at such meetings is rarely likely to be recorded, and the influences which are brought to bear are not likely to be assessed with any degree of confidence. The credibility of the participating witnesses will suffer accordingly.

37 In Day v Perisher Blue Pty Ltd[11] the New South Wales Court of Appeal held that the convening of a pre-trial conference by a legal practitioner, in which multiple witnesses attended using teleconference facilities and discussed the evidence which they intended to give at the trial, seriously undermined the trial process and was improper. As to this, the Court said:

It has long been regarded as proper practice for legal practitioners to take proofs of evidence from lay witnesses separately and to encourage such witnesses not to discuss their evidence with others and particularly not with other potential witnesses. For various reasons, witnesses do not always abide by those instructions and their credibility suffers accordingly. In the present case, it is hard to see that the intention of the teleconference with witnesses discussing amongst themselves the evidence that they would give was for any reason other than to ensure, so far as possible, that in giving evidence the defendant's witnesses would all speak with one voice about the events that occurred. Thus, the evidence of one about a particular matter which was in fact true might be overborne by what that witness heard several others say which, as it happened, was not true. This seriously undermines the process by which evidence is taken. What was done was improper. The process adopted was more concerned with ensuring that all the witnesses gave evidence which would best serve their employer's case. This realisation makes particularly sinister the precept in the Witness Protocols for Court Cases and Arbitration Hearings, "Not about facts about credibility".

38 In my view, the meeting conducted in this case on 14 March 2006 fell into the species of the conduct described in Perisher Blue insofar at it went beyond the mere provision of factual information, as Mr Natoli frankly conceded was in fact the case. Even if the meeting was confined to the provision of purely factual information for the assistance of the experts, a meeting of this kind was an inappropriate vehicle to have used to impart such information. It would run the significant risk of bringing into question the independence and credibility of the experts who may attend such a meeting and would otherwise risk compromising their duties to the Court. In the circumstances of this case, the meeting of 14 March 2006 was improper.

39 However, I am not satisfied that the earlier meeting of 14 December 2004 fell into this class. The evidence, such that it was on the issue, is sparse. The handwritten note produced by Mr Love about the meeting is inconclusive. I therefore do not find that the meeting of 14 December 2004 was improper.

40 However, not all pre-trial meetings of witnesses will be improper in this sense. At least three classes of case may be excepted:

1. It has been common in Australia across many fields of practice for expert witnesses to prepare draft reports and for those drafts to be exchanged between experts where the opinion of one expert depends upon information to be provided by others. If this occurs, such drafts may be called for when the expert is giving evidence. Successive drafts may also be called for and examined upon.[12]
2. Meetings may be convened for the purposes of lawyers being provided with information which in turn is provided to a party with legal advice. Communications occurring at such a meeting may retain legal professional privilege.[13]
3. Where expert evidence is adduced, the Court may direct, pursuant to r.44.06 of the Rules that the experts for both or all sides confer before trial with a view to identifying areas of agreement and subjects which remain in controversy.

41 However, the exceptions do not apply in this case to the meeting of 14 March 2006.

42 In Goldberg v Ng Hango Holdings Pty Ltd[14] the High Court considered the situations in which a privilege may be lost by operation of law through imputed waiver. Deane, Dawson and Gaudron JJ observed:[15]

The circumstances in which a waiver of legal professional privilege will be imputed by operation of law cannot be precisely defined in advance. The most that can be done is to identify a number of general propositions. Necessarily, the basis of such an imputed waiver will be some act or omission of the persons entitled to the benefit of the privilege. Ordinarily, that act or omission will involve or relate to a limited actual or purported disclosure of the contents of the privileged material. When some such act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver, the governing consideration is whether "fairness requires that his privilege shall cease whether he intended that result or not". That does not mean, however, that an imputed waiver must completely destroy the privilege. Like an express waiver, it can be limited so that it applies only in relation to particular persons, materials or purposes. [References omitted]

In Attorney-General (NT) v Maurice,[16] it was accepted in all judgments that the question whether a limited disclosure gives rise to an implied or imputed waiver of legal professional privilege ultimately falls to be resolved by reference to the requirements of fairness in all the circumstances of the particular case.

...

Hence, the implied waiver inquiry is at bottom focused on the fairness of imputing such a waiver.

43 Imputed waiver was considered further by the High Court in Mann v Carnell[17] Gleeson CJ, Gaudron, Gummow and Callinan JJ observed:[18]

Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large. [References omitted]

44 The question becomes, was there a relevant inconsistency between the conduct in convening the meeting of experts of 14 March 2006 and the maintenance of the privilege in the communications exchanged on that occasion? I think there was.

45 Having found that the meeting conducted in this case on 14 March 2006 was improper in the respect I have described, the respondent by convening such meeting, compromised the overriding duty of the expert witnesses to provide independent assistance to the Court on matters relevant to their area of expertise.

46 The present case is not dissimilar to the South Australian case R v Bunting & Ors.[19] The accused charged with murder. He sought access to notes of various communications between the Director of Public Prosecutions (the "DPP") and practitioners and police, witnesses and legal representatives of a co-accused. The production of some documents was opposed by the DPP on basis of legal professional privilege. It was held that legal professional privilege was capable of applying to communications involving the DPP and practitioners. The question considered was whether the DPP's duty of disclosure "prevailed" over his right to maintain legal professional privilege.

47 In the course of determining that the DPP was the subject of an imputed waiver in relation to the documents in question, Martin J reasoned:[20]

When the Director institutes or maintains a prosecution, the Director does so in the knowledge that the prosecution carries with it an essential feature, namely, the duty of disclosure. The Director is aware that the duty is inconsistent with the maintenance of confidentiality in respect of relevant information. In those circumstances, consistent with principle, it can be said with considerable force that the conduct of the Director as the privilege holder in instituting or maintaining a prosecution is inconsistent with the maintenance of confidentiality in respect of relevant information which would otherwise be disclosed. The relevant conduct is the institution or maintenance of a prosecution. In such circumstances, it can be said that it is unfair for the Director to both institute or maintain a prosecution and to maintain the privilege in breach of the duty of disclosure that accompanies the prosecution. In the words of the joint judgment in Mann v Carnell, "the law recognises the inconsistency and determines its consequences". [Reference omitted]

48 The presence of a counterveiling duty can therefore give rise to an inconsistency with the maintenance of a legal professional privilege.

49 In the present case, consistently with the principles of imputed waiver identified in Goldberg v Ng and Mann v Carnell, the conduct of the respondent was inconsistent with the maintenance of the privilege in the communications which were the subject of the meeting of the respondent's experts held on 14 March 2006, in that, to give effect to the privilege would inevitably and further compromise the trial of some of the issues which are presented for determination in this proceeding. The respondent is a participating party in the present proceeding. As such he has a duty not to conduct his case in a manner that puts at risk a fair trial of relevant issues.

50 Given that the rationale of legal professional privilege is to promote the public interest by assisting and enhancing the administration of justice, it ought not to be used to further an opposite effect.

51 Moreover, it 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.

52 The inconsistency which has been found is such as to enliven the exception in s.122(2) of the Evidence Act. The applicant is therefore on this ground too, entitled to adduce evidence about the communications exchanged at the meeting of 14 March 2006 through cross-examination, and is also entitled to the tender in evidence the documents which bear upon the meeting.

53 Reference was made in submissions by Senior Counsel for the applicant, Mr Delany SC, to s.126 of the Evidence Act. This section provides:

1. Loss of client legal privilege-related communications and documents

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.

Example

A lawyer advises his client to understate her income for the previous year to evade taxation because of her potential tax liability "as set out in my previous letter to you dated 11 August 1994". In proceedings against the taxpayer for tax evasion, evidence of the contents of the letter dated 11 August 1994 may be admissible (even if that letter would otherwise be privileged) to enable a proper understanding of the second letter.

55 I accept that s.126 expands the class of communications which may adduced in evidence which are reasonably necessary to enable a proper understanding of another communication or document which is admitted into evidence.

56 As was made clear by Sackville J in Towney v Minister for Land & Water Conservation (NSW),[21] 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.

57 At present there are no specific documents to which s.126 applies. I will consider any application under the section on its merits.

[1] See: "Attracting and Preserving Legal Professional Privilege by In-House Counsel" Emilios Kyrou (as he then was) 1 March 2008.

[2] Evidence Act 2008 ss.121; 122; 123; 124; and 125.

[3] [1976] HCA 63; (1976) 135 CLR 674 at 685; see too Gleeson CJ, Gaudron and Gummow JJ in a joint judgment in Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 [35].

[4] [1983] HCA 39; (1983) 153 CLR 52 at 114.

[5] [2000] VSC 353 at [58].

[6] [2003] FCA 985 at [6].

[7] [1986] HCA 80; (1986) 161 CLR 475.

[8] [2003] FCA 804 at [21].

[9] Lord Arbinger v Ashton (1873) LR 17 Eq 358 at 374 per Sir Jessel MR.

[10] (1993) 2 Lloyd's Reports 68 at 81 per Creswell J.

[11] [2005] NSWCA 110 at [30].

[12] Experts in Civil Cases - Management Principles, Glenn McGowan SC, Victorian Bar CLE program, 1 August 2005 paragraphs [28-29].

[13] See: Australian Rugby Union Ltd v Hospitality Group Pty Ltd [1999] FCA 1061 at [44 - 45] per Sackville J.

[14] [1995] HCA 39; (1995) 185 CLR 83.

[16] [1986] HCA 80; (1986) 161 CLR 475.

[17] [1999] HCA 66; [1999] 201 CLR 1.

[19] [2002] SASC 412.

[21] (1997) 76 FCR 401 at 413-414.