Sendy v Commonwealth of Australia

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

21148/96 John Patrick Sendy v Commonwealth of Australia

JUDGMENT 1 His Honour: The plaintiff seeks to call as a witness Dr Jonathan Phillips, a psychiatrist, who saw the plaintiff on behalf of the defendant in 1999 and furnished two medico-legal reports to the defendant's solicitor. Those reports have not been served on the plaintiff by the defendant, and when a call for their production was made on 2 July during the taking of evidence on commission objection was taken on the ground of legal professional privilege, more correctly now called "client legal privilege". 2 The consequence is that the plaintiff wishes to call Dr Phillips without knowing what is in the reports. The defendant objects to Dr Phillips being called in these circumstances on three grounds: firstly, to allow Dr Phillips to be called would be contrary to the ruling I gave on 12 September 2002 limiting the number of experts pursuant to Practice Note 70; secondly, on ground of client legal privilege; and, thirdly, because of non-compliance with Pt 36, r 13A of the Supreme Court Rules. 3 The object of Practice Note 70, as appears from its terms, is to prevent the qualification of an unnecessary number of experts and the calling of an unnecessary number of expert witnesses. As the Practice Note says: "The practice of having a large number of experts qualifying, both medical and otherwise, whose opinions are commonly overlapping and whose reports either are not used or are of little assistance to the court when tendered, is costly, time consuming and productive of delay." 4 Consequently, the Court is given a discretion to reject the tender of experts' reports or to refuse to allow the expert to be called. It was having regard to the terms of that Practice Note that I did on 12 September limit the number of experts, including the number of psychiatrists, that could be qualified and called by the plaintiff, and it is submitted that to allow Dr Phillips to give evidence will be contrary to my earlier ruling and a reversal of such ruling. 5 I do not see it that way in that to permit the plaintiff to call Dr Phillips to give evidence will not add to the number of experts qualified as he has already been qualified, albeit on behalf of the defendant. It will add to the number of witnesses called, but the defendant has been insistent on maintaining its claim for privilege, as it is entitled to, but the fact that it has been so insistent raises the possibility that the doctor formed an opinion contrary to the case of the party engaging him. If that is so, it may be, and I emphasise "may be", that his evidence will be helpful in arriving at a fair and just decision in the case. 6 In particular, the calling of Dr Phillips would not, as I see it, result in the calling of another witness whose evidence overlaps other witnesses already called or to be called. 7 The Practice Note is discretionary, and in the circumstances I feel that, notwithstanding my earlier ruling on 12 September, if the plaintiff wishes to call Dr Phillips under the circumstances in which it is able to do so, I should permit that course to be taken. I therefore reject the argument based on Practice Note 70. 8 Next, it is submitted that to allow the doctor to give evidence will result in a breach of the defendant's client legal privilege, because it is submitted that not only the contents of his reports to the defendant are privileged, but that all the intellectual property which resulted in the making of such reports is also subject to the privilege, including the history given by the plaintiff to Dr Phillips, any notes Dr Phillips made of that consultation and any opinion he formed as to the plaintiff's condition. These matters are said to be subject to the privilege because they were presumably included in the reports. 9 It has been further submitted that, if Dr Phillips expresses an opinion different to the opinion contained in his reports, it would be contrary to my earlier ruling on Practice Note 70 and a breach of Pt 36, r 13A of the Rules. 10 I turn to consider the provisions of the Evidence Act 1995. Section 117 contains definitions, including definitions of "confidential communication" and "confidential document". Sections 118 and 119 are as follows: "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 or a lawyer, 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." 11 What the sections make clear from their very terms is that the privilege is attached to and limited to "confidential communications" and "confidential documents", and then only if such communications and/or documents are between certain persons, such as between a client and his, her or its lawyer, which means between the client and that client's lawyer: Dimkovski v Ken's Painting & Decorating Services Pty Limited & ors [2002] NSWSC 50. 12 Any reports furnished by Dr Phillips to the defendant are privileged communications by virtue of s 119(a) or (b), or probably both. However, what the plaintiff told Dr Phillips does not come within s 118 or 119. It is not a confidential communication between the defendant and its lawyer, it is not a confidential communication between two lawyers acting for the defendant and it is not the contents of a confidential document prepared by the defendant or by its lawyer, so it does not come within s 118. 13 As to s 119, it is a communication between the plaintiff and Dr Phillips, not between the defendant and another person, nor between a lawyer acting for the defendant and another person, nor is it the contents of a confidential document; but, as I say, it is simply a communication between the plaintiff and Dr Phillips. Accordingly, it does not come within the terms of s 119. 14 Similar considerations apply to Dr Phillips's notes recorded at the time to assist his memory. They are not a communication of any kind nor a confidential document. Nor was Dr Phillips's opinion a confidential communication or a confidential document; it was merely an opinion he formed in his own mind. 15 These matters were, it is true, subsequently communicated to the defendant's lawyers for the purposes of the litigation; but the primary material was not privileged, and it did not become privileged by later being included in a privileged communication, just as a non-privileged document does not become privileged because a copy of it is included in a privileged communication: Chadwick v Bowman (1886) 16 QBD 561, Watson v Cammell Laird & Co (Shipbuilders & Engineers) Ltd [1959] 1 WLR 702 at 704. The copy may be privileged, but the original remains non-privileged. 16 In this general context, I refer to the recent decision of the Court of Appeal in R v P [2001] NSWCA 473, 53 NSWLR 664, where, as appears at [56], the opinions of Dr Bell and Dr Lewin concerning the appellant were held to be admissible but not the reports which they had furnished and which were the subject of privilege, see also [73]. 17 In my view, the relevant principle as to the right of the plaintiff to call Dr Phillips, notwithstanding the defendant's claim for privilege of his reports, is set out at [57] of the judgment in that case by Hodgson JA, where he quotes with approval from the dissenting judgment of Lord Nicholls of Birkenhead in Re L [1997] AC 16 at 34, where his Lordship said: "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. … 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 [my underlining]." 18 These principles expounded by Lord Nicholls of Birkenhead above are consistent with Schedule K to the Supreme Court Rules, particularly paras 2, 3 and 4, to the effect that an expert witness is not an advocate for a party, that his or her paramount duty is to the court and not to the person retaining the expert, and that he or she has an overriding duty to assist the court impartially on matters relevant to the expert's area of expertise. 19 Reference was made to the passage in R v P at [56] referring to the situation where it would be unfair to admit the opinions of an expert if those opinions could not be explored or tested without going into privileged communications. I see no grounds in the present case for excluding Dr Phillips's evidence on this basis as it has not been shown that he was furnished with any other privileged information which would prevent any opinion he expresses, in this case being explored or tested without going into the contents of such privileged communications. 20 It was further submitted that it was one thing if the plaintiff obtained from Dr Phillips in the witness box an opinion which was the same as that he had previously expressed to the defendant's solicitors, but that the plaintiff should not be allowed to extract a different opinion from him. There is no reason to believe that he will express a different opinion, although it may always be possible. If he does, and that different opinion is favourable to the plaintiff, the defendant can cross-examine him and, if it wishes to, it can waive the privilege on his earlier reports. If the different opinion is favourable to the defendant, I have no doubt that the defendant will be happy to accept it. 21 I therefore rule that the plaintiff can call Dr Phillips, can ask him what he was told by the plaintiff, and the doctor can refer to any notes which he made at the time to refresh his recollection. The doctor may be asked if he was furnished with any further material by the defendant and, if so, what. If such material includes any privileged communications in respect of which the privilege has not so far been waived, the doctor may be asked to exclude that material from the formation of his opinion. He can then be asked his opinion based on all the non-privileged material obtained from the plaintiff or otherwise provided to him. 22 The final objection to Dr Phillips giving evidence was that the plaintiff had not served Dr Phillips's reports as required by SCR Pt 36, r 13A. The fact that he has not done so is no fault of the plaintiff; he did not have the report and did not have access to it. Part 36, rule 13A(5) provides that the expert evidence is not admissible unless it is covered by the expert's report served in accordance with the Rules, but it is "except with the leave of the court". Where the plaintiff has not been able to serve the reports, I consider it an appropriate case to grant leave to adduce the evidence, bearing in mind that the defendant cannot be prejudiced by this failure because it knows, and has known since late 1999, the contents of such reports. 23 The only other matter that I should refer to is the letter from the defendant's solicitor to Dr Phillips dated 14 November last, annexure A to the affidavit of Donna Ann Robinson sworn today, the third paragraph of which purports to place him on notice that the contents of his report are legally professionally privileged, "as are the notes of consultation taken when you reviewed Mr Sendy for the Commonwealth". The latter of these assertions is, in accordance with my judgment, erroneous, and the doctor should be advised accordingly. That may be done by either or both solicitors. **********

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