The Owners - Strata Plan No 16857 v Hyman

Background

1. The background to the appeal is succinctly set out in the reasons at first instance. The reasons are not long, and bear repeating nearly in full. It appears that the correct name of the company providing the report, at least from the cover of the report itself, is not capitalised in respect of the words "koikas" or "acoustics." The 'Ms Pham' referred to is a solicitor in the employ of the firm representing the appellant. The reasons, relevantly, record: 1. At the hearing of these proceedings on 23 September 2022 an issue arose about a draft report, version 3 prepared by koikas acoustics Pty Ltd. Counsel for Mr and Mrs Hyman who I will refer to as the 'lot owners' called for a copy of the report. The solicitor for The Owners - Strata Plan No. 16857 who I will refer to as the 'Owners Corporation' resisted the call. He said that the draft report was privileged. [The member then refers to the process of preparing this issue for determination on the papers] 4. The koikas accoustics Pty Ltd Pre-Impact Sound Insulation Testing of Proposed Flooring System at Unit 26, No 93 Elizabeth Bay Road which the Owners Corporation has or will tender in the proceedings, states on page 2 under the general heading 'Document Control' the versions of the report. All versions state, among other things, 'Report Version (I, 2 and 3) available for issue' 5. The Owners Corporation's position is that Version 3 of the report (the 'Version 3 report') which is stated to be dated 30 August 2022 was brought into existence solely for the purpose of litigation, was not finalized and subject to further amendments requested by the Owners Corporation's solicitor. The solicitor for the Owners Corporation has referred me to Malone v La Playa Nominees Pty Ltd [2021] VSC 271 a decision of Matthews A sJ in which a number of the relevant authorities are referred to and discussed. 6. The submissions of the lot owner state that the relevant provisions of the Evidence Act 1995 applies to this determination. To support that submission s 67 of the Civil and Administrative Tribunal Act 2013 is relied upon. That section states: '(1) Nothing in this Act requires the disclosure of a document if the Tribunal or President is satisfied that evidence of the document could not be adduced in proceedings before a NSW court by reason of the operation of any of the following provisions of the Evidence Act 1995 - (a) section 9 (Application of common law and equity), but only to the extent that it preserves any privilege against the adducing of evidence, (b) section 10 (Parliamentary privilege preserved), (c) Part 3.10 (Privileges) of Chapter 3.' 7. The Owners [C]orporation's submissions in reply state that the Version 3 report is privileged under s 119 of the Evidence Act. 8. I find that the Version 3 report cannot be produced in the Tribunal if it were to be exempt from disclosure according to the provisions of Part 3.10 of the Evidence Act. 9. I also find that the relevant section of the Evidence Act which must be considered is s119 which relates to litigation. Section 119 states so far as is relevant: '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) […] (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.' 10. The Owners Corporation's case is that the Version 3 report was being prepared for the dominant purpose of it being provided with professional legal services relating to these proceedings, being the applications instituted by both parties. 11. I accept Ms Pham's evidence that the Version 3 report was prepared as a result of the fact that she requested the author of the report to carry out testing and to prepare a supplementary report. 12. The lot owners submit, among other things, that the Version 3 report was not a confidential document. Section 119 applies to confidential documents. The fact is that the Version 3 report was not described as confidential in the solicitor's or expert's communications which related to it. However I find that a failure to mark all relevant communications as 'confidential' does not automatically mean that the document is not confidential and therefore not privileged. 13. The hallmark of confidentiality in connection with s 119 is the definition of that word in s117 which states: 'confidential document means a document prepared in such circumstances that, when it was prepared - (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.' 14. The content of the solicitor's email of 29 August indicated that the report was required as a matter of urgency in two days' time for evidence. The evidence of Ms Pham [7] was that the report was required for filing in the Tribunal on or before 31 August 2022. There was no statement that the report was subject to a final review or conference. The report, a copy of which has been provided to me, is signed and in final form. In my view the report is not a draft which was in the course of preparation and subject to ongoing discourse between the Owners Corporation's solicitors and the expert. I find that as at the time the Version 3 report was sent by the expert to the Owners Corporation's solicitor on 30 August, the dominant purpose of the report was for filing in the Tribunal, not for the Owner's Corporation being provided with professional legal services relating to the Tribunal Proceedings. Refer [19] Buzzle Operations v Apple Computer Australia [2009] NSWSC 225. In that context, the Version 3 report was not subject to s119 of the Evidence Act. 15. Insofar as the Owner's Corporation's submissions state that the Version 3 report was not a finalized report and subject to further amendments requested by the Owners Corporation's solicitor refer [19] of the 30 September 2022 submissions, the evidence of Ms Pham does not go so far as to provide a basis for that submission. I do not accept the submission. As I have found, at the time the Version 3 report was sent by the expert to the Owners Corporation's solicitor on 30 August, the dominant purpose of the report was for filing in the Tribunal, not for the Owner's Corporation being provided with professional legal services relating to the Tribunal Proceedings or for further discussions with the Owner's Corporation's solicitors.

Scope and nature of internal appeals from interlocutory decisions in the Consumer and Commercial Division

1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
2. Two noteworthy issues arise from the fact that the decision at first instance was an interlocutory decision made in the Consumer and Commercial Division. The first is that leave is required to bring the appeal even on a question of law: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(a). The second is that cl 12 of Sch 4 of the NCAT Act has no application because it applies, on its own terms, only to decisions made under s 80(2)(b) of the NCAT Act, i.e. decisions other than interlocutory decisions.
3. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to the Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court said at [28] (citations omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.

Grounds of appeal

1. The Notice of Appeal, prepared by the lawyers for the appellant, raised three grounds, as follows: 1. The Tribunal failed to take into account relevant considerations; 2. The Tribunal took into account irrelevant considerations; and 3. There has been a failure to provide proper reasons.
2. Separately, the appellant sought leave to appeal, seemingly overlooking that leave was required even if a question of law is identified.

The appellant's submissions in support of its grounds of appeal and a grant of leave

1. The appellant does not suggest that the Tribunal misidentified the legal principles to be applied. Indeed, the principles applied appear to be agreed as correct between the parties and to me. Rather, the appellant's principal concerns are directed to how the Tribunal went about applying the relevant tests to the primary facts as found (which are not really controversial) to reach its ultimate conclusion as to the secondary fact that the Report was prepared for the dominant purpose of filing in the Tribunal, not for the dominant purpose of the Owners Corporation being provided with professional legal services relating to the Tribunal Proceedings or for further discussions with the Owners Corporation's solicitors.
2. The respondent submits, and I accept, that the appellant did not really address the basis upon which leave to appeal should be granted. Given what I have just recorded, there is no apparent issue of principle or general public importance to be considered. However, the appellant alleges that the decision works a clear injustice on it. On the basis that the decision at first instance was determined on the papers, the Senior Member was not in an advantageous position over me to make determinations of fact: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. On that basis, I will reconsider the decision and the alleged errors to determine whether I can be satisfied that there is an error leading to injustice rising above the merely arguable, and if so to determine the challenges to the decision on their merits.
3. As was said by the plurality in Lee v Lee (2019) 266 CLR 129; [2019] HCA 28, at [55] (footnotes omitted): "A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'."
4. The relevant facts which are not in issue, or to the extent they may be I find on the uncontroverted documentation before me in the appeal, are: 1. The appellant's solicitors engaged koikas acoustics Pty. Ltd. (KA) to prepare an expert report for the proceedings; 2. The first relevant instruction given by the appellant's solicitors to KA was contained in an extensive letter of instruction dated 15 June 2022 (the letter of instruction) which, at page 3 of 11, beside the heading "draft report to be provided", indicated - "To ensure compliance with the requirements of the report as referred to in this letter, you must submit an electronic version (or in an appropriate format) of the report for review prior to the report being finalised." The letter of instruction also required the expert to ensure that "a copy of this brief should be attached to your report": page 4 of 11. 3. A draft, version "V1" was prepared as a result, dated 22 June 2022. There is no dispute that this was truly a draft to which privilege attached. 4. There was then a second "V2" version supplied, dated 23 June 2022, which attached the letter of instruction. It was undisputedly a final report, and it was lodged in the Tribunal and served on the respondent. 5. Ms Pham, for the appellant, then sent an email to KA dated 15 August 2022. The email is brief. The relevant parts of the email should be reproduced in full: I note that the report prepared by you (copy attached) does not provide for a non-carpet flooring solution. Could you please advise whether a non-carpet flooring solution is available which would comply with the LnTw specified in by-law 21? I note that when you attended lot 26, test 4 involved 8mm Regupol underlay, which achieved an LnTw which was not too far away from the standard specified in by-law 21. Please advise whether the usage of 15mm Regupol underlay would achieve compliance with the by-law's requirements. Is so, please arrange for a supplemental report confirming this to be provided. If you have any queries or require further assistance, please contact me. 1. On 29 August 2022, Ms Pham sent another email to KA asking for an "ETA" on the report and advising that the appellant needed "… to provide a copy of the acoustic report together with our further evidence by 31 August 2022." 2. The "V3" Report, which is the subject of this appeal, was then provided by KA to the appellant's solicitors. 3. Subsequently, a further "V4" report has been prepared by KA and lodged in the proceedings at first instance. It is dated 31 August 2022 and attaches the letter of instruction. I infer from the way the appeal was conducted that it was this V4 report, and not the Report that was before the Tribunal.

Failure to take into account relevant considerations

1. So long as it is understood that 'relevant considerations' in this context is a mandatory consideration, this allegation of error may raise a question of law. In any event, I will also consider any alleged errors of law or fact for the reasons set out earlier.
2. The relevant consideration said to have been overlooked by the Tribunal was that the letter of instruction required KA to provide a draft report for further comment and amendment. It is argued that the issue of whether the Report, and the fact the V4 report, attached the letter of instruction, rather than Ms Pham's emails of 15 and 29 August 2022 is relevant to determination of the ultimate issue. In oral argument, the appellant also relied on the Tribunal failing to take into account Ms Pham's belief that she had requested a draft report on the terms of the letter of instruction when sending her correspondence to KA in August 2022. It is not apparent that these issues could be said to be mandatory considerations on a claim for privilege, but in fairness to the appellant's willingness to deal with the appeaI on an expedited basis I will treat it as an allegation the Tribunal failed to engage with its case, unless there is any material prejudice to the respondent in my doing so without hearing from them on the issue.

The Tribunal took into account irrelevant considerations

1. The appellant's allegation or error in this regard appears to have been drafted to bring it within a recognised area in which a question of law may be identified (taking into account an irrelevant i.e. prohibited consideration), without any real attempt to bring the actual error asserted within those confines. The actual error alleged, and repeated in oral submissions, is that the Tribunal erred in finding that the report was not a draft, simply because it was subsequently amended.

The Tribunal failed to give adequate reasons

1. This ground relates to the Tribunal's reasons not mentioning the letter of instruction, and its relevance.
2. In oral submissions, the appellant's solicitor confirmed the two issues demonstrating the Tribunal's error are that the letter of instruction required that a draft report be produced and that the undisputed fact the Report was subsequently amended placed its status as a draft beyond doubt.

The respondents' position

1. The respondents submit that the Report was not brought into existence by the letter of instruction, which was spent when the "V2" report was lodged and served. They say what truly caused the preparation of the Report was Ms Pham's emails of 15 and 29 August 2022, noting that neither of those pieces of correspondence refer back to the earlier letter of instruction or mention the requirement for a draft, and that the 15 August 2022 email makes it clear that the report is to be 'supplementary' to the V2 report. The urgency with which the report was sought is said to support the Tribunal's ultimate conclusion. The respondents note that it is the intent of the deponent or author of a document that is relevant, not that of the solicitor who requested the document, citing Buzzle Operations (the relevant authority identified by both parties as containing the applicable principles and cited by the Tribunal at [14] of its reasons). The respondents submit that the reasons of the Tribunal need not be elaborate, and that its failure to refer to the letter of instruction is explained by the fact that it did not form part of the instructions leading to the Report's preparation on the evidence before the Tribunal.

The relevant law as to privilege

1. In New Cap Reinsurance Corporation Ltd (In Liq) & 1 Or v Renaissance Reinsurance Ltd [2007] NSWSC 258, White J noted in respect of the status of expert reports, at [30]: It will be a question of fact, to which the expert may be required to put his or her oath, as to whether any draft reports prepared and kept by him, and working notes prepared by him or his staff, were brought into existence for the dominant purpose of the plaintiffs being provided with professional legal services. If they were prepared for the dominant purpose of a draft report being submitted for advice or comment by the plaintiffs' lawyers, then they would be privileged under s 119. However, if they were brought into existence for the dominant purpose of the expert forming his or her opinions to be expressed in the final report, then it could be arguable that they were not made for the dominant purpose of the plaintiffs being provided with professional legal services relating to the proceedings.
2. In Buzzle Operations, White J recorded the following from earlier authority, and made the following relevant observations and determinations after reciting ss 117 and 119 of the Evidence Act 1995 (NSW), the relevant parts of which are quoted in the Tribunal's decision and reproduced above: 21. No evidence was adduced as to the purpose of the deponents of affidavits or the makers of the witness statements in providing their affidavits and statements. The evidence of the plaintiffs' solicitor quoted in para [9] above is that it was her purpose that the affidavits should be prepared to consider whether they should be deployed and used in the Federal Court proceedings, and if so, for them to be served pursuant to the Federal Court orders. She could not give evidence of the deponent's purpose, nor of the purpose of the first plaintiff's liquidator. Moreover, whilst her purpose is relevant, the question of what is the dominant purpose for the preparation of the affidavits and witness statements is to be determined objectively (Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia per Callinan J at 107 [172]; Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [6]). 22. I do not consider that the plaintiffs' solicitor's own description of her purposes as being "dominant" carries any weight, particularly as she did not address any other purpose that she or her client had in the preparation of the documents. At least a purpose of the final affidavits and witness statements must have been to tell the Court and the respondents of the facts which the applicant in those proceedings sought to establish. It is hard to conceive how that could not have been the dominant purpose of the final affidavits and witness statements. The onus of establishing that the dominant purpose of preparation of the documents was for the first plaintiff to be provided with professional legal services fell on the plaintiffs. In my view that onus has not been discharged. I reach that conclusion notwithstanding that the plaintiffs' solicitor was not required for cross-examination. In my view, the formulaic nature of her evidence, her failure to address with particularity each of the affidavits and statements for which privilege is claimed, and her failure to address other purposes the documents were intended to serve means that her assertion as to her dominant purpose carries no weight. In any event, the solicitor's purpose is not the only relevant subjective purpose to be considered. 23. Mr Gyles SC for the plaintiffs submitted that the documents were privileged because the prior communications between the deponents and the plaintiffs' solicitors would clearly be confidential and made for the dominant purpose of the plaintiffs being provided with professional legal services, namely, the preparation of the affidavits, and those communications would be reproduced in the affidavits. Hence, he submitted that the affidavits were privileged, and in this respect referred to the judgment of King CJ in State Bank of South Australia v Smoothdale No. 2 Ltd at 226. There his Honour said: " The argument sought to be advanced by the appellant is that the statements of which production is sought, as distinct from the original statements taken from the witnesses, were prepared and signed for the purpose of compliance with the order, and were not documents brought into existence for submission to legal representatives for the sole purpose of use in legal proceedings; Grant v Downs (1976) 135 CLR 674, Baker v Campbell (1983) 153 CLR 52 per Brennan J at 108. I think that the argument is fallacious. The documents in question are in substance merely a reproduction of statements already obtained from witnesses for the sole purpose of use in the proceedings, in a form suitable for compliance with the order. They do not lose their character as statements of witnesses because they are prepared with a view to compliance with the order." 24. There are two difficulties with this submission. The first is that the evidence does not address the extent to which the signed affidavits and witness statements reflect prior communications of the deponents with the plaintiffs' solicitors. 25. The second is that demonstrated by the Full Court of the Federal Court in ACCC v Cadbury Schweppes Pty Ltd at [73]. Their Honours said: " ...we do not consider it correct to conclude that the final witness statements were being prepared and signed for the purpose of compliance with a court order or that the documents were merely reproductions of statements already obtained by witnesses for the sole (now dominant) purpose of use in the proceedings so that they were privileged. This fails to appreciate a number of matters. Drafts and final proofs are by nature and in fact different documents. A draft may well include information which is not included in a final version of a witness statement given to an opposing party. A draft may well be a 'discussion' document, intended only to be seen and considered by the party's legal advisor. It should not be assumed that the final version is just a reproduction of anything that comes before it. Even if it be so, once the decision has been made to call a particular witness to give evidence and that the evidence will comprise that which is in the witness statement, that final witness statement assumes a different character. The final version of a proof of evidence is the document prepared for disclosure to the court and to the opponent. The 'essential character' of a final proof of evidence is to make disclosure to the opponent and the court of the evidence which is proposed to be led at trial. Such finalised witness statements may be prepared in the finalised form because of the court order for disclosure of evidence before the hearing. However, the fact remains that the purpose of the party preparing and delivering a final version of a witness statement is to give advance notice of what evidence that party proposes to put before the court. It does not matter whether the finalised version was or was not intended to be tendered in court - the purpose of bringing into existence the finalised proof of evidence was to give it to the opposing party at the time of service and to disclose the information contained in the proof. "

Determination

1. I will deal first, and briefly, with the Tribunal's reasons for decision. The relevant principles as to the adequacy of reasons are not in issue. They were recently, and authoritatively set out in respect of the Tribunal's obligation to give reasons in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231. Relevantly, the Tribunal "might not be required to 'submit the material before [it] to the most meticulous analysis and carry into [the reasons for its decisions] a detailed exposition of every aspect of the evidence and the arguments ...' or '... incorporate an extended intellectual dissertation upon the chain of reasoning ...', at least 'a basic explanation of the fundamental reasons which led the [Tribunal] to [its] conclusion ...' is necessary": Samuels JA in the unreported decision of this Court in Strbak v Newton (Court of Appeal (NSW), Samuels JA, 18 July 1989, unrep), cited in Xuereb v Viola (1988) 18 NSWLR 453 at 469. The content and detail of reasons "will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision.": Wainohu v New South Wales (2011) 243 CLR 181 at 215; [2011] HCA 24 at [56].
2. The only aspect of the reasons challenged here is the failure to refer to the letter of instruction. Unless that was central or at least important to the determination of the matter, which is one of the other grounds, it was not necessary that the Tribunal refer to it, an issue I will come to. In any event, given I am reviewing the decision for error and may decide to substitute my own decision for that of the Tribunal, the Tribunal's reasons assume a lesser significance.
3. It is simplest that I deal next with the allegation that the fact the Report was subsequently amended is proof that it was a draft. That argument demonstrates the classic logical fallacy of begging the question, that is, using the argument's premise to assume the truth of the conclusion. The Report may have been prepared and given to the appellant's solicitors for the dominant purpose of lodgment in the Tribunal or alternatively as a draft for the dominant purpose of legal advice and assistance. It may have been changed because it was merely a draft for discussion, or alternatively because the appellant's lawyers asked for that to be so. The fact that it was subsequently changed is an irrelevant, or at best barely relevant, objective factor in determining the dominant purpose of the Report.
4. Leaving to one side for the moment the letter of instruction, the only evidence before Tribunal at first instance, and before me about the relevant issues is contained in an affidavit of Ms Pham dated 26 September 2022. Relevantly, at para 8, Ms Pham deposes that she "…received a copy of the draft report…" on 30 August 2022. At para 9, she deposes that "[o]n 30 August 2022, I wrote to [the author of the Report from KA] requesting some amendments to the Version 3 Report."
5. There is no evidence that Ms Pham requested a draft report, no other reference to Ms Pham's belief that the report was to be prepared in draft; no suggestion that she referred KA back to the letter of instruction when requesting that a supplemental report be prepared; no evidence that the requested changes to the Report arose from a deficiency in form in the Report or discussions arising from the report having been provided in draft for discussion; and no evidence dealing with the author of the Report's subjectively intended purpose in preparing the Report.
6. It is also self-evident that the Report, insofar as it contained new material, was not actually responsive to what was sought in the letter of instruction, but, rather, was entirely responsive to Ms Pham's subsequent correspondence. This is because there was a final report completed and filed in response to the letter of instruction, the V2 report dated 23 June 2022.
7. In Barnes v Commissioner of Taxation (Cth) [2007] FCAFC 88, the Full Court of the Federal Court referred to Buzzle Operations with approval, and went on to comment in respect of issues unrelated to whether the common law test was to be applied in respect of privilege or the specific terms of the evidence act under consideration: 18 The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 at 189, Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (1991) 29 FCR 203 at 211 (per Lockhart J); Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689 (per Stephen, Mason and Murphy JJ). Where possible the Court should be assisted by evidence of the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document. The fact that generalised evidence is not challenged in cross-examination does not mean that such evidence must be accepted, particularly when it is as manifestly inadequate as it is in this case. As in Kennedy v Wallace, mere general assertions of the purpose of creation of the documents are insufficient to discharge this onus.
8. Those comments are apposite to Ms Pham's evidence

The relevance of the letter of instruction

1. In respect of the letter of instruction, the appellant argues that the Tribunal should have drawn an inference from it being attached to the V4 report that the author was intending to reflect that it was the letter of instruction, and not Ms Pham's subsequent correspondence that the author was working from, including the requirement that a draft be provided.
2. I note that, as here, the parties may agree to produce the document in question, and that this may allow the Report to be examined to see if other inferences are available. What I have gleaned from doing so, which was not known to the Tribunal at first instance, is that that the Report also attached the letter of instruction, and makes no reference to Ms Pham's subsequent correspondence. Nor does it make any reference to being a draft, a fact consistent with the email sending it to Ms Pham: at p 173 of the appellant's material. It is in all respects apparently complete, and electronically signed by the author as "approved".
3. It is also important to consider the submissions actually made to the Senior Member. Having reviewed the appellant's principal submissions and those made in reply, the relevant references to the letter of instruction are: 1. From the principal submissions: 15. For the reasons set out above, the owners corporation submits that the Draft Koikas Report is privileged on the following bases: a. Koikas was briefed via email on 15 August 2022 to prepare a litigation compliant report regarding the viable hard flooring solutions which could be installed on top of the existing flooring in lot 26 in accordance with Order 4 of the Tribunal's orders made on 11 August 2022, which required the owners corporation to file all documents it intended to rely upon on or before 31 August 2022; … 16. The Final Koikas Report was a supplementary report to the June Koikas Report. The original instructions for the June Koikas Report were by way of written brief to Koikas on 15 June 2022. In the brief, the owners corporation provided the following instructions: [Here follows the request for a draft in the letter of instruction] 17. The above notation in the brief clearly shows that the documents produced are to be forwarded to the solicitor for review prior to the report being finalised. This is what occurred with the Draft Koikas Report. 1. From the submissions in reply: 13. Further, the August Koikas Report was a supplementary report to the June Koikas Report. The original instructions for the June Koikas Report were by way of written brief to Koikas on 15 June 2022. In the brief, the owners corporation provided the following instructions: [Here follows the request for a draft in the letter of instruction] 18. Further, it is not possible to infer that nothing that the expert could not provide further evidence [(sic)]as to the purpose of the Draft Koikas Report. The Tribunal must consider the following conduct by the expert: … b. The August Koikas Report is a supplementary report to the June Koikas Report and the terms of the brief from Bannermans dated 15 June 2022 apply.
4. There can be no doubt that the Tribunal is required to engage in a meaningful way with substantial, clearly articulated arguments on established facts. A failure to do so is a failure to accord natural justice and may be considered to be a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; (2003) 77 ALJR 1088; [2003] HCA 26. The resolution of such matters should be considered in the reasons, subject to what was said in Xuereb.
5. I accept that it would have been preferable that the reasons mention the letter of instruction, at least so as to make it clear that it had been considered. However, for the reasons set out in [26] to [30] above, on balance I think that it can properly be considered as peripheral to the real issues the Tribunal was asked to grapple with, such as to not to render the reasons inadequate or the allegation that the Tribunal failed to consider the issue more than merely arguable. The central importance of the letter of instruction to the appellant's case was only obliquely put in its submissions. Further, where the Tribunal clearly found that it was the August correspondence by Ms Pham that brought the Report into being, and there was no reference to the letter of instruction in that correspondence, the importance of the letter of instruction was not a substantial issue which was clearly articulated.
6. In so finding, I am mindful of the fact that the reasons were in respect of an interlocutory decision in the Tribunal's Consumer and Commercial Division, given within three days from the close of submissions.
7. For those reasons, I will refuse leave to appeal as I do not consider the appeal to identify an injustice beyond the merely arguable.
8. If I am wrong in that and leave is warranted, I would still have dismissed the appeal. There remains no evidence from the author of the Report, and no explanation as to why that is so when it might otherwise be expected to be available in the circumstances.
9. In Cook's Construction Pty Ltd v Brown & Anor [2004] NSWCA 105 at [33] Meagher J recorded the following, which was cited with approval in ASIC v Hellicar [2012] HCA 17. …If on the other hand the person bears the onus and has a witness which he or she does not call then the Court takes that into account when assessing the evidence as a whole. As good an illustration as any of that point is the judgment of Hodgson JA in Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 at 576-7. It is that second aspect of the rule that is really relevant in the present case and it is with respect inaccurate to tag it as a Jones v Dunkel point. However, the tag "Jones v Dunkel" does not detract from the point her Honour was making that she can take into account when a witness is not called by a person who bears the onus when she is evaluating whether the onus of proof has been established.
10. On the appellant's argument at first instance, applying the relevant principles above to the factual findings I have made, it was in my view entirely unexceptional that the Tribunal was not satisfied that the claim for privilege was made out.
11. As argued before me, I am satisfied that the attachment of the letter of instruction to the Report leads to a proper primary inference that KA viewed the terms of the letter of instruction as part of its retainer to prepare the Report. However, that does not significantly advance the appellant's case unless I can properly draw secondary inferences that the author of the Report: remained conscious of the requirement in the letter of instruction for a draft to be provided; considered that it still applied to this supplemental report, which was produced with some apparent urgency to meet the filing deadline and, ultimately, that the author's subjective intention when preparing the Report was that it be provided in draft for the dominant purpose of advice or consultation, rather than lodgment and disclosure.
12. Taking the evidence as a whole, I am not satisfied I should draw those secondary inferences. The absence of any direct evidence from the author of the Report contributes to that situation as there is a distinct lack of other probative evidence to support the appellant's position.
13. I note, though, that the proceedings at first instance are not scheduled for hearing until next year. I am satisfied I should give the appellant an opportunity to consider whether it wishes to challenge my decision before being compelled to provide the respondents with a copy of the Report.

Costs of the appeal

1. The respondents indicated, in the event that they were successful in the appeal, that they sought costs.
2. I will make directions for the filing of submissions on that issue.

Orders

1. My Orders are as follows: 1. Leave to appeal is refused. 2. The non-disclosure order in respect of the Report and stay made 28 October 2022 shall continue for a period of 14 days from the publication of this decision to the parties. 3. The respondents are to lodge submissions and evidence in support of their costs application with the Appeal Registry and give them to the appellant within 14 days of the publication of these orders. 4. Any submissions and evidence in response to the costs application are to be lodged with the Appeal Registry and given to the respondents within 14 days thereafter. 5. Submissions on the application for costs are not to exceed five pages in length. 6. The Appeal Panel may dispense with a hearing and determine any application for costs on the basis of the written submissions and evidence provided. If the parties oppose this course they should make submissions on this issue when complying with the directions as to their submissions on the substantive costs application. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2022