What can you subpoena from an expert witness? Do common law principles or the provisions of the Evidence Act 1995 (NSW) apply?

In a recent ruling by Elkaim AJ of the Supreme Court of New South Wales, Longton Legal achieved a favorable outcome in the case of Ghorbanzadeh v Western Sydney Local Health District [2023] NSWSC 1330. The court decision revolved around the issue of privilege concerning the notes created by the defendant's liability expert. These notes were prepared for a call with the defendant's solicitor, specifically to discuss the likelihood of successfully defending the plaintiff's claim.

Abstract

Elkaim AJ found that the document in question was not a communication and did not go beyond being a working note. He emphasised that there was no evidence to suggest that the document was intended to be a means of communication. If he was wrong on the issue of privilege, Elkaim AJ held that privilege would have been waived based on Lindgren J's judgment in Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804. The defendant’s liability expert did not state that the document played no part in the formation of his opinion, and there was an inference that the content of the document was encompassed in the six questions answered in his ultimate report.

Background

The plaintiff issued a subpoena to produce documents to Dr Vijay Roach, Obstetrician and Gynaecologist, who provided the defendant’s solicitors, Minter Ellison, with an expert report in these proceedings for the defendant.

Dr Roach complied with the subpoena and produced documents to the Court.

Following a contested interlocutory hearing regarding the subpoena and various other issues, the parties agreed to various orders for the production of documents. The defendant then made a claim of client legal privilege over 2 pages containing handwriting of Dr Roach (“the Document”), which are contained within the bundle of material that he produced.

The defendant initially resisted the granting of access to the Document based on reliance on ss 118 and 119 of the Evidence Act 1995 (NSW). This position, later, proved to be erroneous.

The contents of the notes in the Document were unknown. Dr Roach’s purpose at the time he wrote the notes is stated to be to “briefly summarise the facts of the claim and to use them [presumably meaning the summarised facts] as the basis for communications with Minter Ellison in providing my verbal opinion.”

The plaintiff sought access to the Document by way of notice of motion.

The plaintiff submitted that applying the relevant principles the Document cannot be privileged because common law legal professional privilege only applies to communications. There was no evidence that contents of the Document were ever communicated to the defendant nor to its’ lawyers, Minter Ellison.

Legal principles – privilege

The defendant bears the onus of establishing the privilege claim.

If the Court wishes to inspect the Document it has the power to do so pursuant to r 1.8 of Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

Brereton J observed in Hancock v Rinehart [2016] NSWSC 12 at [7]:

    “To sustain a claim of privilege, the claimant must not merely assert it; but must prove the facts that establish that it is properly made.”

Privilege is to be claimed by the client, not the client’s lawyer. This privilege applies where the objection is taken by the client, not the lawyer: Commissioner of Australian Federal Police v Propend Finance (1997) 188 CLR 501 at 570.

Rule 1.9 of the UCPR governs the process by which an objection may be made. Rule 1.9(1) of UCPR provides that the rule applies if the court orders a person, by subpoena or otherwise, to produce a document to the court or to an authorised officer, as is the case here where Dr Roach has been ordered by subpoena to produce a document. Rule 1.9(3) of UCPR provides that a person may object to producing a document on the ground that the document is a privileged document.

In Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 Brereton J held that where the objection to production is not made by the person producing the document, rule 1.9 of UCPR did not apply. The question of inspection is governed by the common law; at [10]-[11].

McDougall J came to the same conclusion in Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002 and held that rule 1.9(3) of UCPR operated in such a way as to make client legal privilege under the Evidence Act 1995 (NSW) relevant only where the person producing the document claimed privilege and not where a party claimed privilege over a document which a third party produced.

In Tavcol both parties were seeking access to documents produced by third parties on subpoena. Both parties claimed privilege over such documents. The third parties did not object to production, as contemplated by r 1.9 of UCPR. Nor did they object to inspection of the documents. Instead, it was left to the lawyers for each party to make the privilege claim and object to inspection.

McDougall J found that for the purposes of rule 1.9(3) of UCPR, the “person [who] may object to producing a document on the ground that the document is a privileged document” must be the person, referred to in subrule 1(a), who is ordered by subpoena to produce the document to the Court. His Honour referred to and applied authorities that provide where objection is not taken by the person who had been subpoenaed, questions of privilege are to be resolved by applying the common law.

After Tavcol was decided rules 1.9(4), (4A), (4B), (4C) of UCPR were introduced however they have no bearing on the issue. Those subrules were introduced in Uniform Civil Procedure (Amendment No 91) Rules 2019 where it was stated that the amendment was intended to make it clear, following the decision in Hancock v Rinehart [2016] NSWSC 12, (a) that when an objection is made to the production of a document on the ground of privilege, access to the document must not be granted unless and until the objection is overruled, and (b) that the production of a document to the court under a claim for privilege does not constitute a waiver of privilege.

The decision in Tavcol has been followed in Balzola v Federal Capital Press of Australia Pty Ltd (No 3) [2016] NSWDC 258 at [16]; Mobis Parts Australia Pty Ltd v XL Insurance Company SE [2016] NSWSC 1599 at [3] and Baron v Gilmore [2018] NSWSC 439 at [5].

The application of common law principles is of significance. Legal professional privilege at common law is concerned only with

communications and not with documents per se.

In Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804, Lindgren J set out the common law principles regarding legal privilege in relation to experts reports at [21]:

    "[21] I will apply the following principles which I did not understand to be in dispute:

    (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...

    (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...

    (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...”

Legal principles – waiver

In the present case, waiver was to be determined according to common law principles and not the provisions of the Evidence Act 1995 (NSW); see Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526; [2011] NSWSC 1083 at [28] and Rickhuss v the Cosmetic Institute (No 4) [[2023] NSWSC 666 at [222] to [229].

At common law, the test to determine whether there has been a waiver of legal professional privilege by the privilege holder’s conduct is one of consistency between that conduct and the retention of the privilege; see Mann v Carnell [1999] HCA 66 201 CLR 1; Osland v Secretary, Dept of Justice (2008) 234 CLR 275; [2008] HCA 37; GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266 at [52] –[54].

If the defendant has acted in a manner that is inconsistent with the maintenance of privilege., it is unfair for the defendant to maintain the privilege. In the words of the joint judgment in Mann v Carnell, “the law recognises the inconsistency and determines its consequences”.

Findings of the Supreme Court of New South Wales

On the issue of common law privilege, Elkaim AJ found at [28] to [33] of Ghorbanzadeh:

    [28] Ultimately then the defendant’s argument turns on whether or not the document had been communicated to Ms Smith.

    [29] I repeat what Dr Roach said:

        “I used them as the basis for expressing my verbal opinion to Ms Smith.”

    [30] This is what Dr Roach did not say:

• I communicated my notes to Ms Smith; or

• I read out my notes to Ms Smith; or

• my notes stated (or described or summarised) my verbal opinion; or

• I told Ms Smith what was in my notes.

    [31] The above possibilities are no more than speculation of what Dr Roach could have said. However, they are examples of what I consider a step further than what Dr Roach actually said in his affidavit.

    [32] Remembering that the onus is on the defendant to establish the privilege and noting that Dr Roach specifically prepared an affidavit on the issue, I do not think that the document is a communication. I do not see it going any further than a working note on which Dr Roach’s discussion or opinion may have been based.

    [33] Emphasising what Barrett J said in Ryder there is no evidence to suggest that the document was “intended to be a means of communication with the litigant or lawyer.”

Elkaim AJ did not consider it necessary to consider the question of waiver, however, in case he was wrong on his, above, conclusion with respect to the issue of privilege, held that he would have concluded:

    [35] … that privilege was waived. Returning to Lindgren J’s judgment in Southcorp, his Honour stated at [21.4]:

“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.”

    [36] Again, it is important to note what Dr Roach did not say in his affidavit. He did not say that the document had played no part in the formation of his opinion. The defendant stressed that the report he ultimately produced was an answer to six specific questions, to be contrasted with the general discussion that had occurred in the telephone call on 4 October 2022.

    [37] However, there is nothing to say that the six questions did not cover material that was contained in the document. The material sent to Dr Roach prior to the telephone call was precisely the same material sent to him when he was instructed to prepare a report. There is an almost inevitable inference that the six questions encompassed, even if to a small degree, the contents of the document.

Implications

1. Where the objection to production is not made by the person producing the document, rule 1.9 of  UCPR and the provisions of the Evidence Act 1995 (NSW) do not apply. The question of inspection is governed by the common law.

2. To be protected by privilege under common law the document in question must be a communication.

3. Clear and cogent evidence is necessary to suggest that the document was intended as a means    of communication or its contents was communicated.

4. Unless the expert states that the document played no part in the formation of his opinion, privilege would be waived based on Lindgren J's judgment in Southcorp as 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.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*