FEDERAL COURT OF AUSTRALIA

Shea v TruEnergy Services Pty Ltd (No 5) [2013] FCA 937

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

introduction

1    The applicant, Kate Shea, was dismissed by her employer, the respondent, EnergyAustralia Services Pty Ltd, on 6 February 2012 on the ground that her position had become redundant. In this proceeding, the applicant alleges that, to the contrary, she was dismissed because she exercised a workplace right by having made five successive complaints (or for reasons including such reason or reasons), that her dismissal was adverse action within the meaning of s 342(1) item 1(a) of the Fair Work Act 2009 (Cth) (“the Fair Work Act”) and that the respondent contravened s 340(1) of the Fair Work Act.

2    The respondent denied the applicant’s allegations, but alternatively challenged her claim to compensation on the ground of failure to mitigate her loss. In support of that submission, the respondent relied upon two expert reports of Guy Farrow, an executive search consultant and managing partner of Heidrick & Struggles, an executive search and leadership consultancy service provider.

3    On 2 September 2013, which was the sixth day of trial, during the cross-examination of Mr Farrow, the applicant sought the production and admission into evidence of:

(a)    a number of draft expert reports prepared by Mr Farrow; and

(b)    correspondence concerning the draft reports passing between Mr Farrow and Minter Ellison, the respondent’s solicitors.

4    The respondent resisted the call for production. It primarily contended that the application was made too late and should not now be entertained. Alternatively, it submitted that the application should be rejected because the relevant documents and/or communications were the subject of legal client privilege which had not been waived.

background

The expert reports

5    Mr Farrow prepared two expert witness reports for the respondent dated 3 April 2013 (“the April report”) and 14 August 2013 (“the August report”) respectively.

6    In each report, Mr Farrow stated that he had read, understood and complied with the Federal Court Practice Note CM7 for Expert Witnesses in Proceedings in the Federal Court of Australia.

7    In each report, Mr Farrow stated that he was engaged by Minter Ellison lawyers to prepare an expert witness report pertaining to a legal proceeding between Ms Shea and EnergyAustralia Service [sic] Pty Ltd.

8    The April report stated that it addressed issues set out in the terms of reference contained in the letter of engagement. The April report then discussed a number of topics under headings apparently derived from the letter of engagement. The letter of engagement was not, however, attached or identified by reference to a date.

9    The August report stated that it addressed issues set out in cl 2.1 of a request for supplementary information dated 17 July 2013.

10    The August report annexed seven documents, including a letter of instructions and related documents dated 18 March 2013 and a second letter of engagement to Heidrick and Struggles dated 17 July 2013.

Cross-examination of Mr Farrow

11    On 2 September 2013, in cross-examination, senior counsel for the applicant asked Mr Farrow how many drafts he had made of the April report. Mr Farrow replied that he believed that he prepared one draft prior to the final draft, which he sent to Minter Ellison and received comments back. Senior counsel for the applicant asked if Mr Farrow had made changes to the April report in consequence. That question was met with the respondent’s objection that such matters were covered by legal professional privilege.

12    In relation to the August report, senior counsel asked Mr Farrow how many drafts he had prepared, whether there was correspondence with Minter Ellison in relation to the drafts and whether changes were made in consequence. Those questions were met with the respondent’s objections based on legal professional privilege. Under cover of the objections, Mr Farrow stated that there were three drafts, one of which merely entailed a change of date.

13    Mr Farrow further stated that there were suggested changes, which he recalled were “more around editing than substantial or significant changes of content”.

the parties’ submissions

14    The applicant submitted that legal professional privilege did not attach to any such drafts of the expert reports and related correspondence because it was well established that such privilege was implicitly waived upon the entry of the witness in the witness box. Subsequently, the applicant submitted that client legal privilege under the Evidence Act 1995 (Cth) (“the Evidence Act”) was waived pursuant to s 122, as relevant inconsistency was established.

15    The respondent contended that, to the contrary, legal professional privilege attached to the documents by their nature and had not been waived by reliance on a final report. The argument was deferred so that the trial could proceed and the parties filed brief written submissions on 4 September 2013.

the relevant Authorities

Common law legal professional privilege

16    A number of Federal Court authorities consider the question of waiver of legal professional privilege in expert witness statements, drafts thereof, instructions from and communications with solicitors and copies of documents used by the expert.

17    In Australian Securities and Investments Commission v Southcorp Ltd (2003) 16 ACSR 438; [2003] FCA 804 (“ASIC v Southcorp”), Lindgren J set out the applicable common law principles as follows (at [21]):

(1)    Ordinarily the confidential briefing or instructing by a prospective litigant’s lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege: cf Wheeler v Le Marchant (1881) 17 Ch D 675; Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246; Interchase Corp Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1) [1999] 1 Qd R 141 (Interchase) at 151 per Pincus JA, at 160 per Thomas J.

(2)    Copies of documents, whether the originals are privileged or not, where the copies were made for the purpose of forming part of confidential communications between the client’s lawyers and the expert witness, ordinarily attract the privilege: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; 141 ALR 545; 91 A Crim R 451 (Propend); Interchase, per Pincus JA; Spassked Pty Ltd v Cmr of Taxation (No 4) (2002) 50 ATR 70 at [17].

(3)    Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness’s own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications: cf Interchase at 161–2 per Thomas J.

(4)    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 in (1) and (2) above, 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; cf Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 481; 69 ALR 31 at 34 per Gibbs CJ, CLR 487–8; ALR 38–9 per Mason and Brennan JJ, CLR 492–3; ALR 42–3 per Deane J, CLR 497–8; ALR 46–7 per Dawson J; Goldberg v Ng (1995) 185 CLR 83 at 98; 132 ALR 57 at 66 per Deane, Dawson and Gaudron JJ, CLR 109; ALR 75 per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd [1995] FCA 870; BC9506842; Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89; BC200300344 (ACCC v Lux) at [46].

(5)    Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents; Interchase at 148–50 per Pincus JA, at 161 per Thomas J.

(6)    It may be difficult to establish at an early stage whether documents which were before an expert witness influenced the content of his or her report, in the absence of any reference to them in the report: cf Dingwall v Commonwealth of Australia (1992) 39 FCR 521; Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No 2) (1998) 83 FCR 397 at 400; 156 ALR 364 at 366; ACCC v Lux at [46].

18    His Honour recognised (as stated at paragraph [21], sub-paragraph (4) of his reasons) that implied waiver of legal professional privilege in the confidential briefs and instructions to the expert and copy documents made for the purpose of the expert’s confidential communications with the client’s lawyers could occur (at least) where it could be inferred that the documents were used in a way that could be said to influence the content of the report, because in such circumstances it would be unfair to permit the client to rely on the report without disclosing the brief, instructions or other documents.

19    Lindgren J acknowledged that if the final report did not mention such documents, it might be difficult, at an early stage, to determine whether they had influenced the content of the report.

20    His Honour found that privilege did not subsist in the various draft reports at issue in the case before him because, although they resulted from conferences with counsel, they were the expert’s own thinking and did not constitute or reveal a communication between the expert, solicitor and counsel (at [26]). In contrast, Lindgren J found that annotations on the draft were the subject of the privilege, as they recorded the expert’s understanding of the communications between himself and a solicitor and counsel, and included or exposed expressions of legal opinion (at [27]).

21    Lindgren J’s statement of the common law principles of legal professional privilege have been endorsed in a number of authorities, including, recently in Matthews v SPI Electricity Pty Ltd [2013] VSC 33 at [44] and Clifford v Vegas Enterprises Pty Ltd (No 3) [2010] FCA 287 at [8]. In Traderight (NSW) Pty Ltd v Bank of Queensland Ltd (No 14) [2013] NSWSC 211 Ball J observed (at [14]-[16]) that Lindgren J’s statement of common law principles has been frequently approved and provides context for subsequent decisions. Nevertheless, for the reasons discussed below, the principles set out in ASIC v Southcorp must be modified in cases governed by the Evidence Act and in the light of the analysis in Mann v Carnell (1999) 201 CLR 1 (“Mann v Carnell”)

Client legal privilege under the Evidence Act

22    The present case is not governed by common law principles of legal professional privilege but rather is governed by the Evidence Act (see s 4(1) of that Act).

23    The Evidence Act in Pt 3.10 Div 1 ss 117-126 deals with client legal privilege. It relevantly provides:

…

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, lawyer or another person;

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.

…

122    Loss of client legal privilege: consent and related matters

(1)    This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.

(2)    Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

(3)    Without limiting subsection (2), a client or party is taken to have so acted if:

(a)    the client or party knowingly and voluntarily disclosed     the substance of the evidence to another person; or

(b)    the substance of the evidence has been disclosed with the     express or implied consent of the client or party.

(4)    The reference in paragraph (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.

(5)    A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because:

(a) the substance of the evidence has been disclosed:

(i)    in the course of making a confidential communication or preparing a confidential document; or

(ii)    as a result of duress or deception; or

(iii)    under compulsion of law; or

(iv)    if the client or party is a body established by, or a person holding an office under, an Australian law—to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held; or

(b)    of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or

(c)    of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

(6)    This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness’s memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).

24    Section 133 provides:

If a question arises under this Part in relation to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question.

25    In New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 (“New Cap”), White J in the Supreme Court of New South Wales (sitting in the Corporations List) considered the relevant provisions of the Evidence Act in a defendant’s application to inspect documents for which the plaintiffs claimed privilege in their list of discovered documents. The documents comprised draft expert reports, requests for instructions from solicitors, records of instructions from solicitors in relation to the preparation of the report and notes and working papers in relation to the report.

26    The plaintiffs contended that the documents in question were not uncommunicated drafts of the report (to which client legal professional privilege did not attach) but rather, privileged communications which had passed between the expert and the plaintiffs’ solicitors, for the purpose of providing the plaintiff with professional legal services in connection with the proceeding. Some items were communications between the expert (or members of his firm) and the solicitors, attaching drafts and inviting review.

27    The defendant in New Cap contended that the draft reports were not privileged, or alternatively that privilege had been waived by the plaintiffs’ disclosure of the final report for the express purpose of using it as evidence for them in the litigation.

28    White J observed that the application of common law legal professional privilege was limited, as it did not attach to an expert’s own documents not communicated to the client (or the client’s lawyer) and which do not reveal communications between the expert and client or the client’s lawyer (at [18]). The limitation sprang from common law legal professional privilege’s concern with communications, rather than documents per se.

29    White J recognised that client legal privilege under the Evidence Act was not subject to the same limitation. Rather, s 119 of the Evidence Act extended to both confidential communications between a client’s lawyer and the contents of confidential documents (whether delivered or not) that were prepared for the dominant stated purpose (that is, of the client being provided with professional legal services relating to a proceeding, whether before the Court or anticipated, to which the client is, may, was or might have been a party) (at [20]).

30    White J held that the draft expert reports in the case before him were the subject of client legal privilege, as it could be inferred that they were confidential and produced for the dominant purpose of being communicated to the client’s lawyer for the purposes of the litigation (at [22]).

31    His Honour considered that any draft reports prepared and kept by the expert, and any working notes prepared by the expert or his staff, would be privileged under s 119 if they were prepared for the dominant purpose of submitting a draft report for advice or comment by the plaintiff’s lawyers (at [29]-[30]). If, however, they were brought into existence for the dominant purpose of the expert forming his own opinions to be expressed in the final report, it was arguable that they were not privileged or made for the dominant purpose of providing the plaintiffs with professional legal services relating to the proceedings (at [30]).

32    White J discussed (at [31]) the meaning of “professional legal services” and appeared to accept the view in Odgers, Uniform Evidence Law, 7th ed, (2006) Sydney, Lawbook Co at paragraph 1.3.10720 that:

Since providing a client with professional legal services includes representing the client in legal proceedings, it is likely that a document prepared for use in such legal proceedings by the client’s lawyer will be privileged.

33    White J noted that cases such as ASIC v Southcorp were decided on the principles of common law, which were limited to communications rather than documents per se, whereas s 119(b) of the Evidence Act extended privileged to confidential documents, whether communicated or not (at [33]-[34]).

34    His Honour said that the relevant question under s 119(b) was identifying the dominant purpose for which the documents were brought into existence.

35    While White J acknowledged that the issue may not be easy to determine, he considered it probable that where an expert retained by lawyers prepares a draft report, one purpose will be to set out the evidence which the expert intends to give and another purpose will be to enable the draft to be considered and commented on by the lawyers (at [35]). Only if the latter purpose were the dominant purpose would the draft would be privileged (at [35]).

36    In the case before him, White J concluded that the draft reports were privileged because they were copies of the draft report brought into existence for the [dominant] purpose of comment (at [37]). The earlier instructions were privileged as they were brought into existence for the dominant purpose of the client being provided with professional legal services in connection with the proceeding [at [37]]. Whether the same documents retained by the expert were produced for the same dominant purpose would be a different question, which might depend on the expert’s oath.

37    White J rejected the defendant’s contention (which was based on Lindgren J’s observations in ASIC v Southcorp) that the plaintiff had impliedly waived privilege in all the communications between solicitors and the expert, earlier letters of instruction and drafts (at [43]). His Honour noted that ASIC v Southcorp concerned common law legal professional privilege (at [41]).

38    White J discussed loss of privilege under s 122 of the Evidence Act 1995 (NSW) (which was not as yet amended to include sub-sections (2) and (3) in their current form). Section 122(1) provided:

This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.

39    White J stated that consent in that context included imputed consent, as where at common law a party may be taken to have waived privilege, even if there was no subjective intention to do so (at [44]).

40    His Honour referred to the High Court’s discussion in Mann v Carnell of inconsistency between, on the one hand, the conduct of the client and, on the other hand, the maintenance of confidentiality, which affected an express or implied waiver (at [44]).

41    Applying the reasoning in Mann v Carnell (which, as it did not recognise an overriding principle of fairness operating at large, to some extent qualified Lindgren J’s statements in ASIC v Southcorp), White J concluded that privilege in materials provided to an expert would not be lost merely because an expert is called or his or her report is served (at [54]). Waiver would require, at least, reference to the contents of a document and reliance on it (at [53]).

42    His Honour referred (at [46]) to Dingwall v Commonwealth of Australia (1992) 39 FCR 521 where Foster J (at 524) stated that Attorney-General (NT) v Maurice (1980) 161 CLR 475 (“Maurice”) did not go so far as to support waiver of privilege in materials merely because they were sent to a potential witness so that they could provide an expert report. Rather, Maurice required, for waiver, “an indication that documents were used in the preparation of the evidentiary document in a way that could be said to influence the content of that document”.

43    White J did not recognise any universal entitlement in the opposite party to test whether the relevant privileged documents influenced the content of the expert’s report (at [48]).

44    In New Cap, the expert specified material on which he relied, which did not include draft reports or earlier letters of instruction. White J inspected the documents in dispute in an attempt to discern whether they may have relevantly influenced the content of the report. His Honour acknowledged that the usefulness of such an exercise was limited (at [51]). The expert could, for example, have genuinely changed his or her opinion, so that the mere fact of a difference between the final report and the draft would not establish that the latter influenced the former in the relevant sense (at [52], see Linter Group Ltd v PriceWaterhouse [1999] VSC 245 at [16] per Harper J).

45    Further, White J recognised that there are many different senses in which the legal advisers might be said to influence the content of the report (eg, advice in relation to admissible form) which would not be inconsistent with maintaining the privilege because it would be unfair to rely on the final report without disclosing the earlier materials (at [53]).

46    In Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 7) [2008] FCA 323, Heerey J of the Federal Court, in reliance on New Cap, Natuna Pty Ltd v Cook [2006] NSWSC 1367 and ML Ubase Holdings Co Ltd v Trigem Computer Inc [2007] NSWSC 859, concluded (at [3]):

There is a clear line of authority which establishes that draft documents and other communications of a like nature with an expert witness proposed to be called in litigation are privileged under s 119(b) whatever may have been the position at common law …

47    More recently, in Traderight v Bank of Queensland Ltd (No 14) [2013] NSWSC 211, (“Traderight”) Ball J refused an application by the respondent bank for access to documents relating to the preparation of an expert’s report prepared on instructions from the solicitors for the plaintiffs, over which the plaintiffs claimed privilege. Broadly, the documents sought by the respondent bank included draft reports prepared by the expert containing comments, requests or advice by the legal advisers; draft reports created for the dominant purpose of providing them to the legal advisers for consideration or comment; and documents recording the communications between the expert and the legal advisers in relation to the draft reports or their preparation, for the dominant purpose of the legal advisers considering or providing comment or advice (at [3]).

48    It was not disputed that the above documents were, on their face, subject to client legal professional privilege under s 119 of the Evidence Act 1995 (NSW) (which was relevantly in the same terms as the Evidence Act 1995 (Cth)).

49    The bank relied on the exceptions to legal professional privilege under s 122(2) of the Evidence Act 1995 (NSW).

50    Ball J noted (at [10]) that the amendment to s 122(2) (in force from 1 January 2009) was made pursuant to the recommendation of a joint report of the Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission (Uniform Evidence Law, ALRC Report 102, NSWLR Report 112 and VLRC Final Report (February 2006) (“Joint Report”). The Joint Report followed the High Court’s decision Mann v Carnell (1999) 201 CLR 1, where Gleeson CJ and Gaudron, Gummow and Callinan JJ (at [29]) stated that the waiver of legal professional privilege depended on the inconsistency which the courts (where necessary informed by considerations of fairness) perceive, between the conduct of the client and maintenance of the confidentiality – not some overriding principle of fairness operating at large. The Joint Report recommended that s 122 be amended to align it more closely with the common law as set out in Mann v Carnell. Ball J stated at [12]:

It is clear from these paragraphs that s 122(2) in its current form is intended largely to adopt the test for waiver at common law as explained by the High Court in Mann v Carnell and that s 122(3) is intended to give some examples of the application of that test.

51    His Honour recognised that ASIC v Southcorp provided context for cases such as New Cap. He further stated at [21]:

It is clear, however, that the approach taken by White J to s 122(1) is now applicable to s 122(2). White J proceeded on the basis that s 122(1) incorporated principles of common law waiver. As I have explained, those principles are now encapsulated in s 122(2). The narrow approach taken by Brereton J to s 122 no longer applies to the section as amended. Although Mr Cotman SC, who appeared for the OMB Parties, took me to a number of other cases, there was no real dispute between the parties that the principles as stated by White J were the principles to be applied in this case.

52    Ball J concluded that in the case before him, privilege in the communications between the expert and the legal advisers was not lost as there was nothing to indicate that the expert’s conclusions were not her own or were based on material which the report did not disclose (at [23]).

Consideration

53    In this case, the questions whether relevant documents are the subject of client legal privilege and whether, if so, the privilege has been waived, are to be determined under the Evidence Act. The cognate principles of common law legal professional privilege are, to the extent of any inconsistency with the Evidence Act, inapplicable.

54    The concept of implied waiver discussed by the High Court in Mann v Carnell, although enunciated in relation to common law legal professional privilege, is applicable to the loss of client legal privilege under s 122(2) of the Evidence Act.

55    In the light of the above, statements of principles in decisions of this court which were made in relation to common law legal professional privilege, rather than client legal privilege under the Evidence Act, or which depart from, or do not take account of the reasoning in Mann v Carnell, must be qualified accordingly.

56    The provisions of the Evidence Act do not support the absolute and diametrically conflicting propositions initially advocated by each party. Drafts of expert reports, and commentary and communications passing between an expert and the client’s lawyers, are not ipso facto the subject of client legal privilege. Nor, in my opinion, is such privilege in draft expert reports and communications passing between an expert and the client’s lawyers automatically waived by reliance on the final report, whether by its service, the expert witness’ entry into the witness box or otherwise.

57    Rather, draft expert reports and communications passing between an expert and the client’s lawyers will attract client legal privilege if, inter alia, they satisfy the conditions of s 119 of the Evidence Act, in that they are confidential and were prepared or made “for the dominant purpose of the client being provided with professional legal services in relation to an Australian 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” (“the specified purpose”). In my opinion, as White J accepted in New Cap, “professional legal services” encompasses representing the client in legal proceedings.

58    The means of establishing that documents and communication were prepared or made for the specified purpose may vary according to the context.

59    Client legal privilege subsisting under s 119 may be waived under s 122(2) if the client or party acted inconsistently with objecting to adducing evidence because it would result in a disclosure of the relevant documents or communications. An example of such inconsistency relevant to the present case is contained in s 122(3) (that is, where the substance of the evidence has been disclosed with the express or implied consent of the client or party), which invokes the doctrine of imputed consent applicable to common law legal professional privilege.

60    Recent persuasive authority, such as New Cap, makes clear that relevant inconsistency may subsist where the draft reports or communications may have influenced the content of the final report in a substantial sense, as in such a case, there would be inconsistency informed by notions of fairness between, on the one hand, withholding the documents or communications while, on the other hand, relying on the final report. If, however, the relevant documents or communications have not influenced the content of the final report, or may have influenced it but in relation only to form or peripheral matters, the inconsistency would be unlikely to be established.

61    The party asserting wavier of privilege has no automatic entitlement to test whether the privileged documents influenced the contents of the expert’s report in the relevant sense. Rather, it will be a balancing exercise in the circumstances of each particular case.

62    In the present case, as the applicant submitted, the existence of the draft expert reports and the related correspondence between the expert witness and the respondent’s solicitors was revealed only in the course of the cross-examination of Mr Farrow on the sixth day of trial.

63    As the respondent submitted, however:

[3]    No call for production had been made previously. Discovery was by categories. The categories notified by the Applicant did not cover the documents now pressed. The documents now pressed were created long after categories were notified.

[4]    The parties agreed to exchange copies of instructions provided to their respective expert witnesses seeking the reports that were to be tendered at trial. Despite having the opportunity, the Applicant did not call for production of the documents identified in 2(a) [any draft reports prepared by Mr Farrow] and (b) [all communications between Mr Farrow and Minter Ellison in relation to the two reports tendered in evidence and drafts of those reports].

64    On any view, the possible existence of draft reports or communications between the expert and the respondent’s lawyers was clearly apparent prior to trial. The applicant advanced no sufficient explanation for the failure to use the opportunity to call for production of (and challenge any client legal privilege asserted for) any extant document of the kind now in dispute at an earlier and more appropriate stage of the proceeding.

65    The making of the application on the sixth day (in relation to which brief written submissions were filed at the conclusion of the eighth day) of a trial initially fixed for ten days and subsequently extended to 13 days (to which significant time constraints applied) rendered reference to affidavits and the court’s inspection of the relevant documents (if otherwise appropriate) impracticable. Moreover, as White J observed in New Cap, such inspection may frequently prove inclusive or of little assistance in determining whether the drafts or correspondence have influenced the final report in the sense necessary to establish waiver.

66    The application also constituted a significant distraction, the further pursuit of which would have been, in my view, prejudicial to the efficient conduct and timely completion of the trial.

67    In such circumstances, I considered that the application for the production of the documents was made at too late a stage and should not be further entertained.

68    Such relevant evidence as was given fortified the view that the above conclusion worked no appreciable injustice. The evidence supported the inference that client legal privilege subsisted in the relevant documents and correspondence and had not been waived.

69    On the basis of the testimony of Mr Farrow, which was given subject to the respondent’s objections and the matters referred to in paragraphs 3 and 4 of the respondent’s written submissions (see paragraph 63 above) it is probable that the draft reports and the correspondence passing between the expert and the respondent’s lawyers are confidential and were prepared or made for the specified purpose.

70    Further, Mr Farrow, although he gave no evidence about the nature of any changes made to the April report, expressly testified that the changes to the August report were in the nature of editing rather than matters of substance.

Conclusion

71    It was inappropriate to order production of the draft expert reports of Mr Farrow and correspondence between Mr Farrow and Minter Ellison concerning said drafts.

Associate:

Dated:    19 September 2013