Supreme Court of Queensland|2009-07-21|Before: Chesterman J, Pincus JA, Jersey J, Lyons J

Sandvik Mining and Construction Australia Pty Ltd v. Dempsey Australia [2009] QSC 233 (21 July 2009)

HIS HONOUR: In the principal action in the counter-claim against the plaintiff in relation to the suitability of drilling rigs supplied by the plaintiff, Dr Duncan Gilmore has been commissioned on behalf of the defendants to give expert evidence. He prepared a draft report dated the 12th of December 2008 and a revised draft report dated the 22nd of January 2009. These draft reports were disclosed by the defendants to the plaintiff.

In the revised draft report, Dr Gilmore makes extensive reference to a statement of the second defendant. Indeed, one of the questions he is asked to deal with is formulated by reference to the second defendant's draft statement. The plaintiff now seeks disclosure of the draft statement of the second defendant.

There are, however, some further background facts which should be noted. The draft report of Dr Gilmore was disclosed because rule 212 of the Uniform Civil Procedure Rules (Qld) requires the disclosure of expert reports, depriving them of the benefit of privilege in relation to such disclosure. It is common ground that the operation of rule 212 extends to a draft report: see Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2004] QSC 329; [2005] 1 Qd R 373 at paragraph 13.

At the time when the draft report and revised draft report were prepared there was a general direction for the exchange of expert reports. Since that time, that direction has been replaced by a direction identifying specific topics to be addressed by the experts and requiring the exchange of expert reports. The time for compliance with that direction has not yet expired. The reports are, I am told, to be exchanged this Friday, the 24th of July.

It follows that the report which will be exchanged, will be a report which is not simply the finalisation of either the draft report or the revised draft report. Rather, it will deal with the specific matters identified in the more recent direction. I am told that some of the matters dealt with in the revised draft report are the subject of the direction and that the direction identifies some other matters to be dealt with by the expert reports.

Mr Atkinson, of counsel, who appears for the plaintiff/applicant, relies on Henderson v Low & Ors [2000] QSC 417, a case in which a defendant in a medical negligence claim had provided a document describing his conduct of an operation to his solicitors, who, in turn, provided it to a medical expert who was to provide an expert opinion for the trial. The medical expert's report set out parts of the defendant's document but omitted other parts of it. Chesterman J ordered disclosure of the balance of the defendant's document. He did so critically on the basis that the defendant could not reveal part of their document to support their defence to the plaintiff's claim, yet concealed the remainder by asserting that all that was relevant had been disclosed: see paragraph 16.

In coming to that conclusion, his Honour relied upon a passage from Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation [No 2] [1981] Com.L.R 138 at 139 where it was said, "Where a party is deploying in Court material which would otherwise be privileged, the opposite party in the Court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question" (emphasis added).

It will be apparent that the facts, which led to his Honour's ruling, differ from the facts in the present case. Neither the draft report nor the revised draft report are documents which the defendants have deployed in Court or which they have chosen to release from privilege; nor are those documents reports which the defendants rely upon to support their case.

In any event, there may be doubt about the correctness in principle of his Honour's approach. In Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141, Pincus JA, with whom de Jersey J, as his Honour then was, agreed, held that documents passing between solicitors and an expert for the purpose of the preparation of an expert report do not lose their privilege simply because documents have been provided to the expert and indeed, do not lose their privileged character unless to retain them would be unfair.

In Mann v Carnell [1999] HCA 66; (1999) 74 ALJR 378 at 384, four members of the High Court in a joint judgment said, "A person who would otherwise be entitled to the benefit of legal professional privilege, may waive the privilege...It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege...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". It may be that that more accurately states the test than a general statement about unfairness.

The notion of unfairness was elaborated on by Lindgren J in Australian Securities and Investments Commission v Southcorp Limited [2003] FCA 804; (2003) 46 ACSR 438 at 441-442 in the following passage: "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 earlier by his Honour), 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" (emphasis added).

In other words, it is the fact that a party relies, or intends to rely on, a particular report which has been influenced by the content of documents supplied to its author that makes the maintenance of the privilege unfair.

The issue has been recently considered by the Court of Appeal in Watkins v State of Queensland [2007] QCA 430; [2008] 1 Qd R 564. In that case, Keane JA (with whom Mackenzie J agreed on this point: see para 102) rejected a broadly-stated test of unfairness as the basis for imputing waiver to a party: see paragraphs 54 and following. His Honour attributed imputed waiver of privilege to the abuse of the right to claim it by conduct apt to confuse or deceive the opponent.

In the present case where there will be a final report which will deal at least to some extent with matters other than the matters dealt with in the draft report or revised draft report, and may well deal with them on a different basis from that identified in the draft report and revised draft report, I cannot see any abuse of the right of the defendants to maintain the claim for privilege over the draft statement of Mr Dempsey arising from the fact that they have disclosed those documents.

Much of this area of the law is derived from a consideration of statements of principle in Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475. A number of the passages extracted from the judgments in that case by Keane JA in Watkins at paragraph 57 identified that it is not simply the fact that a report or a similar document has come to the knowledge of another party that makes material referred to in it, or on which it is based, the subject of an implied waiver of privilege. Rather, it is the conduct of the privilege holder which gives rise to the waiver: see, for example, Mason and Brennan JJ at 487-488 and Deane J at 492-493.

This is not a case where the draft report and revised draft report have come into the plaintiff's possession by reason of an election by the defendants to use those documents for their own advantage (adopting the language of Brennan J) or by a choice made by the defendants to disclose as much as they please, but withhold the remainder (adopting the language of Mason and Brennan JJ). Rather, the draft report and revised draft report have come to the plaintiff's knowledge as a result of the compulsory procedures of the Court, and no more.

It therefore seems to me that the conduct of the defendants does not constitute implied waiver. I dismiss the application.

HIS HONOUR: I propose to fix the costs at seven and a half thousand dollars.

At a glance

Court

Decision date

Before

Source

Judgment (20 paragraphs)

Sandvik Mining and Construction Australia Pty Ltd v. Dempsey Australia [2009] QSC 233 (21 July 2009)

Parties

Cases Cited (2)