FEDERAL COURT OF AUSTRALIA

Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 6)

[2009] FCA 1363

PRACTICE AND PROCEDURE - Application for leave to inspect documents produced under subpoena directed to expert witnesses - Claim for legal professional privilege - Whether claim engaged with a known category of legal professional privilege - Whether privilege should be regarded as waived in terms of current Court practice and procedure - Held no claim for legal professional privilege - Held leave to inspect documents granted

Evidence Act 1995 (Cth) ss 118, 119

Interchase Corporation Limited (In Liquidation) v Grosvenor Hill Queensland Proprietary Limited (No 1) (1999) 1 QR 141 cited

Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 2) [2008] FCA 1451 considered

WIDE BAY CONSERVATION COUNCIL INC v BURNETT WATER PTY LTD ACN 097 206 614

QUD 319 of 2008

LOGAN J

16 NOVEMBER 2009

BRISBANE

THE COURT ORDERS THAT:

1.                  Leave is granted to Burnett Water Pty Ltd to inspect documents which comprise Part 2 of Schedule 1 of the list which is now exhibit 80.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     Application has been made on behalf of Burnett Water Pty Ltd ACN 097 206 614 (Burnett Water) for leave to inspect documents produced under subpoena by Mr Tait.  A subpoena was directed to him at the behest of Burnett Water.  It is proposed on behalf of the Wide Bay Conservation Council Inc (Conservation Council) that Mr Tait give expert evidence in the proceedings.  Last Monday, for reasons which I then gave, I declined the tender of a report which he had furnished:  see Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 5) [2009] FCA 1320.

2                     Mr Tait produced particular documents pursuant to the subpoena.  In respect of some of the documents produced, privilege was claimed.  The documents in respect of which privilege is claimed are in summary described in this fashion in the document titled “Documents for Subpoena”:

Mr Tait claims legal professional privilege over correspondence in Part 2, being correspondence between Jim Tait (including Jim Tait and any person on behalf of Econcern Environmental Consultants) and the applicant (including lawyers on behalf of the applicant) in connection with the expert report prepared by Jim Tait for use in these proceedings. 

3                     When one goes to Pt 2 of that document, one finds the following further description under the heading “Documents for Which Privilege is Claimed”:

Correspondence between Jim Tait and the applicant’s solicitors in connection with Jim Tait’s report.

4                     It was on the basis of the description found in the Documents for Subpoena document that privilege was said to repose. 

5                     On behalf of Burnett Water, it was submitted that the descriptions there given did not engage with a known category of legal professional privilege.  It was further submitted that it was in accordance with the practice of the Court that documents and other materials that the expert has been instructed to consider would be produced and insofar as any privilege might otherwise attend to attach to such documents, would be regarded as waived:  see in terms of current Court practice, Practice Note CM7, Expert Witnesses in Proceedings in the Federal Court of Australia of 25 September 2009.  I note that a like requirement attended earlier versions of this practice note in relation to claims for privilege.

6                     It was submitted on behalf of the Conservation Council that the manner in which the return of the subpoena had been ordered in the Documents for Subpoena document, insofar as categorisation and tabulation was concerned, engaged with particular observations which I made, by reference to, in turn, to observations made particularly by Pincus J in Interchase Corporation Limited (in Liquidation) v Grosvenor Hill Queensland Proprietary Limited (No 1) (1999) 1 QR 141 (Interchase), in my judgment in Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 2) [2008] FCA 1451 (Granitgard), at particularly para 28.

7                     It is true that the tabulation endeavours to give precision in a way in which neither the claim in Granitgard, or for that matter, Interchase did, to the documents which are the subject of privilege.  The difficulty about it is, though, that that precision is not matched by precision in respect of known categories of legal professional privilege.  In this Court, those categories are clearly set out in s 118 and s 119 of the Evidence Act 1995 (Cth).  The descriptions concerned gel with neither of these sections, or insofar as they might conceptually perhaps gel with s 119, do not gel with the waiver which necessarily attaches to particular categories of document relied upon by an expert who is to give evidence in this Court.

8                     Out of an abundance of caution, I have, over a short adjournment, perused the documents which comprise those which are set out in Pt 2 of Sch 1.  Suffice to say, the documents concerned, on my perusal, fall within the category set out in para 2.7 of the Court’s guidelines for expert witnesses.  In other words, they are exchanges of correspondence as between solicitors and the expert, either in relation to the preparation of the report, or in briefing the expert with particular materials for use in the preparation of the report, or comprise drafts in respect of which an exchange of correspondence has occurred as between the solicitors for the Conservation Council and Mr Tait. 

9                     Having regard to the discussion of a claim for privilege in my judgment in Granitgard and the terms of s 118 and s 119 and to this Court’s practice note in respect of expert witnesses, my conclusion is that a claim is not made out.  I therefore grant leave to Burnett Water to inspect the documents which comprise Pt 2 of Sch 1 of the list which is now exhibit 80.

Associate:

Dated:         20 November 2009