FEDERAL COURT OF AUSTRALIA

Sampi v State of Western Australia [2000] FCA 1862

PRACTICE AND PROCEDURE – expert report – application for issue of subpoena for production of experts’ field notes

Daniel v State of Western Australia (1999) 94 FCR 537

Interchase Corporation Limited (in liq.) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 QdR 141

Attorney-General (NT) v Maurice (1986) 161 CLR 475

Clarrie Smith v Western Australia [2000] FCA 526

Northern Territory v GPAO (1999) 196 CLR 553

National Justice Compania Naviera SA v Prudential Assurance Co Ltd (“The Ikarian Reefer”) [1993] 2 Lloyds Rep 68

Trade Practices Commission v Sterling [1979] 36 FLR 244

PAUL SAMPI AND OTHERS V STATE OF WESTERN AUSTRALIA AND OTHERS

WG 49 OF 1998

JUDGE:          BEAUMONT J

DATE:            4 DECEMBER 2000

PLACE:          PERTH

THE COURT ORDERS:

1.         That the solicitors for the applicants specifically draw to the attention of Ms Glaskin and Mr Bagshaw, in writing, the following provisions of the Federal Court guidelines for expert witnesses.

“There should be attached to the report, or summarised in it, the following:  (i) all instructions, (original and supplementary and whether in writing or oral) given to the expert which define the scope of the report;  (ii) the facts, matters and assumption upon which the report proceeds; (iii) the documents and other materials which the expert has been instructed to consider.”

2.         That the solicitors for the applicants request Ms Glaskin and Mr Bagshaw to confirm in writing as soon as practicable whether their reports complied with those guidelines; and if not, the extent to which they did not do so, and the steps, if any, proposed to be taken to achieve compliance; subject however to any lawful claim for privilege in relation to (a) a communication between the expert and the solicitors (both ways) when such communication is made for the purpose of confidential use in the litigation; or (b) a communication between the applicants or their agent and third parties if made so as to obtain information to be submitted to the applicants’ legal professional advisers for the purpose of obtaining advice upon pending or contemplated litigation.

3.         That the solicitors for the applicants file and serve a copy of the correspondence referred to pars 1 and 2 as soon as practicable.

4.         Reserve liberty to the respondents to apply in connection with any question arising in respect of these orders.

5.         Standover the generally the first respondents’ application for leave to issue subpoenas, with liberty to restore the application upon such notice as a Judge of the Court may allow.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

 (ON APPLICATION TO ISSUE SUBPOENAS FOR PRODUCTION)

BEAUMONT J:

1                     Before the Court is an application to issue two subpoenas for the production of documents.  The application is made on behalf of the State of Western Australia, and the other first respondents in the proceeding (“the State”).  The subpoenas are in the same form.  Each is addressed to an anthropologist who has, on behalf of the applicants, prepared an anthropological report.  The report is a joint report prepared by Geoffrey Bagshaw and Katie Glaskin.  In each instance the subpoena seeks the production of the following:

“All:

1.                  handwritten or electronically recorded notes used in gathering information for preparation of the report[s] and/or genealogies authored or co-authored by you in these proceedings (WAG 49 of 1998) whether or not that information was ultimately included in the report[s] and/or genealogies;

2.                  sound recordings used in gathering information for preparation of the report[s] and/or genealogies authored or co-authored by you in these proceedings (WAG 49 of 1998) whether or not that information was ultimately included in the report[s] and/or genealogies;

3.                  video recordings used in gathering information for preparation of the report[s] and/or genealogies authored or co-authored by you in these proceedings (WAG 49 of 1998) whether or not that information was ultimately included in the report[s] and/or genealogies;

4.                  any other recordings of like nature used in gathering information for preparation of the report[s] and/or genealogies authored or co-authored by you in these proceedings (WAG 49 of 1998) whether or not that information was ultimately included in the report[s] and/or genealogies;

5.                  notes of observations or transcript made during interviews with the applicants and other persons who provided information for the purpose of and incidental to the compilation of the report[s] and/or genealogies authored or co-authored by you in these proceedings (WAG 49 of 1998) whether or not that information was ultimately included in the report[s] and/or genealogies;

in your possession, custody or control.

All records made of all information and data gathered for the purpose of compiling the applicants’ anthropology report, including any handwritten or electronically recorded notes, sound recordings, video recordings or any like record made of any observations made by the applicants’ researchers and/or interviews or other communications made with any persons, including the applicants, who provided information for the purpose of and incidental to the compilation of the anthropologist’s report, whether or not that information was ultimately included in the report.”

2                     The application for the issue of the subpoenas is supported by several other respondent parties to the proceedings.  However, the application is opposed by the applicants on several grounds.  They claim legal professional privilege in respect of all of the material of which production is sought and, anticipating a contention that privilege may have been waived, the applicants seek support in the approach taken by RD Nicholson J in Daniel v State of Western Australia (1999) 94 FCR 537.  The applicants’ submission is that the appropriate time to seek production of the source documents for an expert’s report is at the conclusion of the applicants’ primary evidence and prior to the commencement of the expert anthropologist’s evidence, after the Court is informed that the expert anthropologist’s report will be tendered and that the expert anthropologist will be available for cross-examination.  It should be noted at this point that the trial of the principal proceedings is fixed to commence in May of next year.

3                     For its part, the State submits that, in accordance with the decision of the Queensland Court of Appeal in Interchase Corporation Limited (in liq.) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 QdR 141, no privilege is attached to documents brought into existence or obtained by an expert to assist in preparation of an expert report, other than certain confidential communications between the expert and the solicitors of the party retaining the expert.

4                     On behalf of the State, it is submitted that the decision of RD Nicholson J in Daniel should either be distinguished or not followed.  It is further submitted on behalf of the State that the decision of the High Court of Australia in Attorney-General (NT) v Maurice (1986) 161 CLR 475 which dealt with a claim of privilege in respect of a “Claim Book” is distinguishable in the light of the characterisation by the High Court in Maurice of the “Claim Book” as in the nature of a pleading, which the State says has no analogy in the present case.  The State further seeks support in the decision of Madgwick J in Clarrie Smith v Western Australia [2000] FCA 526, where his Honour held that it would be unfair to allow an expert’s report to stand without disclosing the documents upon which it was based.

5                     The present application has been fully argued before me and clearly has its own adjectival complexities.  However, some matters may, I think, be put to one side.  In the first place, it is not submitted by either party that the documents sought to be obtained on the subpoena ought to have been discovered.  I would only note in passing that I am prepared for present purposes to accept the parties’ joint position on this matter; but I should not be taken to have accepted that, as a matter of principle or of proper practice, material of the kind now under consideration should not have been discovered.

6                     The second matter that may be put to one side for present purposes is the provisions of the Evidence Act 1995 (Cth).  It is now settled that the Evidence Act is concerned only with the adducing of evidence, the admissibility of evidence and certain ancillary matters and does not deal with the obligations of the party to whom an order in the nature of a subpoena is addressed to produce documents to the Court in question.  Nor does the Evidence Act deal with the grant of leave by the Court to inspect or otherwise make use of documents which have been produced in answer to a subpoena;  see Northern Territory v GPAO (1999) 196 CLR 553 per Gleeson CJ and Gummow J at 571.

7                     The third matter that should be mentioned, if only for the purpose of putting it to one side, is that on 17 December 1999 Lee J gave by consent directions in this matter, by way of case management, including a direction that (par 3) –

“Upon a request by a party, any other party shall within fourteen days of such request, allow the requesting party to inspect and if requested, will provide at the requesting party’s expense, copies of all documents referred to in the party’s expert reports which are unpublished or otherwise not reasonably accessible by the requesting party's experts.”

8                     Such a direction is, of course, proper and appropriate in the present class of litigation, but I am informed by the parties that this direction would have norelevant application in the present context.

9                     Before coming to the application itself, it is necessary to bear in mind thecontext in which the present question arises.  In my opinion, that context is the duties and responsibilities of expert witnesses.  In National Justice Compania Naviera SA v Prudential Assurance Co Ltd (“The Ikarian Reefer”) [1993] 2 Lloyds Rep 68, Creswell J (at 81) analysedthe duties and responsibilities of an expert witness in a civil case.  His Lordshipsaid they included the following (and I paraphrase):

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 orcontent by the exigencies of litigation.

2.         An expert witness should provide independent assistance to the courtby way of objective unbiased opinion in relation to matters within his or her expertise.  An expert witness in the court should never assumethe role of an advocate.

3.         An expert witness should state the facts or assumptions upon whichhis or her opinion is based.  He or she should not omit to consider material facts which could detract from his or her concluded opinion.   (Emphasis added)

4.         An expert witness should make it clear when a particular question orissue falls outside his or her expertise.

5.         If an expert’s opinion is not properly researched because he or sheconsiders that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one.  In cases where an expert witness who has prepared a report could notassert that the report contained the truth, the whole truth and nothingbut the truth without some qualification, that qualification should bestated in the report.

6.         If, after exchange of reports, an expert witness changes his or her viewon a material matter, having read the other side’s expert’s report, or forany other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court.

7.         When expert evidence refers to photographs, plans, calculations,analyses, measurements, survey reports or other similar documents,these must be provided to the opposite party at the same time as the exchange of reports.

10                  This analysis is reflected, both in form and in substance, in the Guidelines toExpert Witnesses adopted by this  Court.  In particular, those guidelines providethe following:

“There should be attached to the report, or summarised in it, the following: (i) all instructions, (original and supplementary and whether in writing or oral) given to the expert which define the scope of the report; (ii) the facts, matters and assumption upon which the report proceeds; (iii) the documents and other materials which the expert has been instructed to consider.”

11                  In my opinion, the issues sought to be agitated in the present application are more appropriately dealt with, in the first instance at least, within the framework of the duties and responsibilities of expert witnesses at common law as enunciated by Creswell J in The Ikarian Reefer and as reflected in the Federal Court guidelines, specifically that provision of the guidelines which I have cited above.

12                  For that reason alone, in my opinion, as a matter of case management, it is appropriate that at this stage a direction be given so as to ensure that the Court and the parties are informed whether the expert witnesses have complied with that provision of the guideline which, as has been seen, is reflected in par 3 of Creswell J’s statement of principle.

13                  In expressing this view as a matter of the proper case management of the matter, I do not intend, nor would it be in any sense appropriate, to attempt to exclude any proper claim for legal professional privilege.  As has been mentioned, this question was adverted to by Thomas J in Interchase (at 162) where his Honour said:

“I would hold that, in general, when an expert is engaged by a solicitor for the purpose of giving evidence in the case, documents generated by the expert and information recorded in one form or other by the expert in the course of forming an opinion are not a proper subjects for a claim of legal professional privilege.  Privilege may however by claimed in relation to communications between the expert and the solicitor (both ways) when such communication is made for the purpose of confidential use in the litigation.  Beyond this, there is no sufficient reason why any material relevant to the formation of the expert’s opinion should be subject to a claim of legal professional privilege.  It is well to add that an expert or solicitor may not artificially manufacture privilege by, for example, the expert sending in his or her file to the solicitor.  Documents of this kind simply are not confidential.”

14                  Nor do I intend, and nor would it be appropriate in the course of the proper case management of this litigation, to override the other kind of professional privilege described by Lockhart J in Trade Practices Commission v Sterling [1979] 36 FLR 244 – 245 par (f) cited by R D Nicholson J in Daniel at 541, that is to say, that kind of privilege which is capable of applying to a communication between the client or his or her agent and third parties if made so as to obtain information to be submitted to the client’s legal professional advisers for the purpose of obtaining advice upon pending or contemplated litigation.

15                  Subject to those matters, however, I propose to give the following directions in this matter:

1.         That the solicitors for the applicants specifically draw to the attention of Ms Glaskin and Mr Bagshaw, in writing, the following provisions of the Federal Court guidelines for expert witnesses.

“There should be attached to the report, or summarised in it, the following: (i) all instructions, (original and supplementary and whether in writing or oral) given to the expert which define the scope of the report; (ii) the facts, matters and assumption upon which the report proceed; (iii) the documents and other materials which the expert has been instructed to consider.”

2.         That the solicitors for the applicants request Ms Glaskin and Mr Bagshaw to confirm in writing as soon as practicable whether their reports complied with those guidelines and if not, the extent to which they did not do so, and the steps, if any, proposed to be taken to achieve compliance; subject however to any lawful claim for privilege in relation to (a) a communication between the expert and the solicitors (both ways) when such communication is made for the purpose of confidential use in the litigation; or (b) a communication between the applicants or their agent and third parties if made so as to obtain information to be submitted to the applicants’ legal professional advisers for the purpose of obtaining advice upon pending or contemplated litigation.

3.         That the solicitors for the applicants file and serve a copy of the correspondence referred to pars 1 and 2 as soon as practicable.

4.         Reserve liberty to the respondents to apply in connection with any question arising in respect of these orders.

5.         Standover the generally the first respondents’ application for leave to issue subpoenas, with liberty to restore the application upon such notice as a Judge of the Court may allow.

16                  Direction 5 involves standing over the application for leave to issue the subpoenas.  I have done that for the reasons indicated above, that is, in my view, the appropriate step to be taken in the proper case management of the proceeding at this stage is to focus upon the duties and responsibilities of expert witnesses.  However, this is not to say that at a later stage, depending on the circumstances as they fall out, that it may not be appropriate that a subpoena of the kind now applied for should issue.  I will consider that application in the light of the circumstances that then exist, specifically of course the response given by the experts mentioned in par 2 of the directions.

Associate:

Dated:                     December 2000