BOS v Minister for Health - [2013] WADC 30

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BOS -v- MINISTER FOR HEALTH [2013] WADC 30

CORAM: DAVIS DCJ

HEARD: 18 FEBRUARY 2013

DELIVERED : 1 MARCH 2013

FILE NO/S: CIV 1736 of 2009

BETWEEN: JACQUES BOS
Plaintiff
AND
MINISTER FOR HEALTH
Defendant

Catchwords:

Civil procedure - Legal professional privilege - Communications between defendant's lawyers and medical experts who had reviewed the plaintiff - Draft substance of expert evidence in relation to liability - Whether communications and draft substances privileged from production - Turns on own facts

Legislation:

Nil

Result:

Defendant's claim to privilege upheld
Plaintiff's application for production of documents dismissed

Representation:

Counsel:

Plaintiff: Mr G Droppert
Defendant: Mr T J Hammond

Solicitors:

Plaintiff: CLP Legal
Defendant: Panetta McGrath

Case(s) referred to in judgment(s):

Atlas Copco Australia Pty Ltd v Oxair Gases Pty Ltd [2013] WASCA 43
Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475
Australian Leisure and Hospitality Group Pty Ltd v Dr Judith Stubbs [2012] NSWSC 215
Australian Securities and Investments Commission v Southcorp Ltd [2003] 46 ACSR 438
Brookfield v Yevad Products Pty Ltd [2006] FCA 1180
Duchess of Kingston's case (1776) 20 State Tr 355
Filipowski v Island Maritime Ltd [2002] NSWLEC 177
Goldberg v Ng (1995) 185 CLR 83; Mann v Carnell (1999) 201 CLR 1
Grant v Downs (1976) 135 CLR 674
Grego v Great Western Insurance Brokers Pty Ltd [2006] WASC 284
Harmony Shipping Co SA v Davis [1979] 3 All ER 177
Harrington-Smith on behalf of the Wongatha People v Western Australia (No 7) (2003) 130 FCR 424; [2003] FCA 893
Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141
Linter Group Ltd v Price Waterhouse (a firm) [1999] VSC 245
New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258
Protec Pacific Pty Ltd v Cherry [2008] VSC 76
Public Transport Authority of WA v Leighton Contractors Pty Ltd [2007] WASCA 151; (2007) 34 WAR 279; (2007) 242 ALR 181
R v King [1983] 1 All ER 929
R v Ward (1981) 3 A Crim R 171
Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [2005] WASC 255
Re L [1997] AC 16
Re Southland Coal Pty Ltd (recs and mgrs apptd) (in liq) (2006) 59 ACSR 87
Richards v Kadian [2005] 64 NSWLR 328
Ryder v Frohlich [2005] NSWSC 1342
Sendy v Commonwealth of Australia [2002] NSWSC 1109
Southern Equities Corporation Ltd & Ors v West Australian Government Holdings Ltd & Ors (1993) 10 WAR 1
Southern Equities Corporation Ltd v Arthur Andersen & Co (No 5) [2001] SASC 335
Spassked Pty Ltd v Commissioner of Taxation (No 4) (2002) 50 ATR 70; [2002] FCA 491
Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 985
Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission [2007] FCAFC 147
W v Egdell [1990] Ch 359
Wheeler v Le Marchant (1881) 17 Ch D 675
Yokogawa Australia Pty Ltd v Alstom Power Ltd [2009] SASC 377; (2009) 262 ALR 738

DAVIS DCJ: The plaintiff claims damages from the defendant for injuries, loss and damage suffered by him arising out of surgery performed on the plaintiff on 3 April 2007 by a surgeon at Royal Perth Hospital, for whom the defendant is vicariously liable. The surgery was required after the plaintiff had fractured his left femur on 1 April 2007.
The main dispute between the parties is whether the surgery performed on the plaintiff was performed with the appropriate level of skill and care. The plaintiff alleges that the surgery was undertaken negligently because he was left with an internal rotation deformity of his left leg, resulting in ongoing disability and the need for further corrective surgery.
The parties have agreed on the quantum of the claim and the matter is listed for trial on the issue of liability alone between 3 – 11 April 2013.
The plaintiff seeks an order for production for inspection of documents which the defendant discovered in a List of Documents filed on 8 February 2013, pursuant to orders I made on 31 January 2013. The defendant objects to production of some of the documents on the grounds, inter alia, of legal professional privilege. The plaintiff disputes the claim for privilege.

Background facts to this interlocutory matter

Following his surgery at Royal Perth Hospital, the plaintiff was reviewed by two orthopaedic surgeons. Because of the particular issues raised in this interlocutory application, I will not name the two surgeons but shall call them Surgeon A and Surgeon B, and collectively the two surgeons. Surgeon A is a reference to the surgeon who first reviewed the plaintiff. Surgeon B actually reviewed the plaintiff at the request of Surgeon A.
The recent dispute over discovery and inspection of documents arises from the fact that in 2012 the defendant proposed to call each of these surgeons as expert witnesses on the issue of liability.
Some time after the defendant's solicitors had produced and provided to the plaintiff's solicitors a substance of expert evidence from each of those surgeons, the plaintiff claimed that each of the surgeons had breached doctor/patient confidentiality. This led to a formal complaint being made by the plaintiff against each of them to the Australian Health Practitioner Regulation Agency (AHPRA). Understandably, following that complaint or alternatively after learning of the plaintiff's intention to bring that complaint, each of the surgeons advised the defendant that they no longer wished to be involved as experts in this action. As a result it became necessary for the defendant to brief another expert to provide expert evidence in the case.
Although the defendant advised both the plaintiff's solicitors and the court that these two surgeons would no longer be called as experts in the case, the plaintiff nonetheless pursued an application for specific discovery. The particular discovery sought was all communications between the defendant's solicitors and the two surgeons arising out of the substance of expert evidence which had been produced for each surgeon and other associated documents, including the accounts rendered by each surgeon to the defendant's solicitors.
It was argued on behalf of the plaintiff that although the evidence of the two surgeons, if they were called as witnesses in this case, would now be limited to factual issues, there were some factual discrepancies between what was in the substances as exchanged and the surgeons' reports and notes which had earlier been discovered by the plaintiff. I accepted the submissions made by the plaintiff that the discrepancies raised a possible question over what findings on examination of the plaintiff were made by each of the surgeons which would be relevant to the issues in the case, in particular, the factual dispute as to the extent of the internal rotation deformity suffered by the plaintiff.
Accordingly, on 31 January 2013 I made an order for the defendant to file and serve a list of documents verified by affidavit of the documents described as follows, or any documents within that class as described, which are or have been in the defendant's possession, custody or power:
1.Correspondence, letters, faxes and emails between the defendant and the surgeons relating to an opinion on the question of liability;
2.All accounts rendered by the surgeons in relation to the items mentioned in paragraph 1; and
3.All drafts, whether hard copy or electronic, Microsoft Word document versions or equivalent software as the case may be, of the substance of expert evidence by each of the surgeons created for the purpose of this action.
I specifically declined to make any order for production of those documents because there was an issue as to privilege in some or all of the documents. That issue of privilege would be determined, if it could not be resolved, at the adjourned date of the plaintiff's chamber summons, 18 February 2013.
In accordance with the orders I made, on 8 February 2013 the defendant filed and served a list of documents verified by affidavit. The list set out 22 documents. Privilege has been waived over some of the documents, in particular the letters of instruction written by the defendant's solicitors to each surgeon and, of course, the substance of the evidence of each of them as already exchanged. Privilege is maintained over the following documents:
(a)documents numbered 4, 7, 8, 10, 11, 16, 18 ‑ 22 which are communications with the two surgeons and drafts of the substance of the expert evidence of each surgeon. The documents numbered 18 ‑ 22 relate to correspondence and a further draft substance which was prepared for Surgeon A in order to provide reasons or an explanation for conclusions in his substance as exchanged, following a hearing before Goetze DCJ on 10 August 2012. The further draft substance of Surgeon A was not exchanged. The defence submits that the communications are not required to be disclosed because they attract legal professional privilege which has not been waived, either expressly or impliedly;
(b)two documents in which the defendant objects to the production on the grounds that they are not relevant to the issues in this case. These are documents numbered 6 and 17 and are the accounts rendered by each of the surgeons.
On 18 February 2013 this matter came before me again. Prior to the hearing I received written submissions from the parties as to their respective positions concerning whether the documents should be produced for inspection. It is this matter upon which I reserved my decision.

Legal principles relating to privileged documents

The general rule is that an expert report and confidential communications between legal advisers and an expert witness are documents which have come into existence for the dominant purpose of submitting to the party's legal advisors for advice or for confidential use in the litigation, and are thus the subject of legal professional privilege.
In this state, a recognised separate category of legal professional privilege is 'litigation privilege'. Litigation privilege has a different rationale to that of advice privilege. It is enough that a document passes between lawyers for a party and a witness, which document was prepared when litigation was commenced and was created solely for the purpose of advancing the litigation by obtaining evidence to be used therein. The communication must be confidential in the hands of the lawyer (or client): Southern Equities Corporation Ltd & Ors v West Australian Government Holdings Ltd & Ors (1993) 10 WAR 1, 22; Public Transport Authority of WA v Leighton Contractors Pty Ltd [2007] WASCA 151; (2007) 34 WAR 279; (2007) 242 ALR 181 [13] ‑ [20] (McLure JA; Steytler P and Miller JA agreeing). To satisfy the requirement of confidentiality it is sufficient if the lawyer, to the knowledge of the witness, intended the communications to be and remain private. Whether or not the witness may owe duties of confidentiality that are sourced not in the privilege but in a separate legal basis such as contract or equity, is of no relevance: Public Transport Authority of WA v Leighton Contractors Pty Ltd [35], [34].
In relation to communications with an expert, Lindgren J set out the principles which apply when determining whether communications with an expert are privileged in Australian Securities and Investments Commission v Southcorp Ltd [2003] 46 ACSR 438 (Southcorp) [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 ChD 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 (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, 487 – 8; ALR 38‑9 per Mason and Brennan JJ, CLR 492–3 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].
Where legal professional privilege, or litigation privilege, over a communication has not been expressly waived, there may still be an implied waiver of the privilege. The general principle concerning implied waiver of privilege is that if it would be unfair for the person to maintain privilege after a disclosure, then there may be a waiver of privilege by operation of law: Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475; Goldberg v Ng (1995) 185 CLR 83; Mann v Carnell (1999) 201 CLR 1.
While the basis on which a waiver of legal privilege may be imputed to a party by operation of law has been explained in terms of 'fairness', the requirement for 'fairness' ordinarily involves or relates to an actual or purported disclosure of the contents of the privileged material. It is only when some act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver that the governing consideration of fairness arises: see Goldberg, 96 (Deane, Dawson and Gaudron JJ).
My review of the authorities which have dealt with legal professional privilege in relation to communications between lawyers and a witness show that a claim for legal professional privilege in respect of communications with expert witnesses (and indeed witnesses in general) will generally be upheld, given the confidential nature of the communication.
In relation to legal professional privilege claimed over draft expert reports, the authorities vary.
In the case of Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141, there was an objection by a defendant to a valuer, from whom the defendant had obtained an expert report, making third party discovery to the plaintiff of letters from the defendant's solicitors to the valuer, drafts of the valuer's report, and working papers used by the valuer in making the valuation. Separate judgments were given by the members of Queensland Court of Appeal, but it was considered that there was no property in a witness, or in documents which were the witness' documents, and that a court had a right to hear evidence, following Harmony Shipping Co SA v Davis [1979] 3 All ER 177; R v King [1983] 1 All ER 929 and W v Egdell [1990] Ch 359. It was held that legal professional privilege attached to confidential communications between the solicitor and expert. The claim of privilege was upheld in respect of that correspondence because the court was not satisfied there was any unfairness in maintaining that claim. There was no waiver by necessary implication of the correspondence between the solicitors and the valuer, simply from the disclosure of the expert valuation report in accordance with the requirements of O 35 r 5(2) of the then applicable Queensland rules of court. The claims of privilege over drafts of the expert report, the working papers, and other documents were dismissed.
In Interchase the drafts of the expert report had not been communicated to or prepared for the purpose of communication to a legal adviser. Thomas J stated (162):
I would hold that in general, when an expert is engaged by a solicitor for the purpose of giving evidence in a case, documents generated by the expert and information recorded in one form or another by the expert in the course of forming an opinion are not a proper subject for a claim of legal professional privilege. Privilege may however be 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 as 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.
Lindgren J in a decision of Spassked Pty Ltd v Commissioner of Taxation (No 4) (2002) 50 ATR 70; [2002] FCA 491 [20], considered that draft expert reports were not privileged if they were not part of communications between the expert and the client or the client's solicitors.
In Southcorp Lindgren J considered a claim of privilege for three draft reports. He concluded that there was no privilege in two draft reports as these were the expression of the expert's own independent thinking and did not reveal communications between the expert and the party's solicitors. However, annotations which recorded and revealed the expert's communications with the solicitors and included expressions of legal opinion were privileged. The third draft report which had been 'marked up' or tracked by the solicitors to indicate to counsel the difference between that and earlier reports, was held to be privileged because the marking up was for a confidential communication between the solicitor and counsel.
In Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 985 [3], Ryan J, applying the principles in Southcorp stated that:
Where a draft report has been annotated in a way which seems to record instructions or further information supplied to the expert witness or records some development of the expert's own thinking, I have rejected the claim of privilege in respect of the draft as so annotated. On the other hand, if the annotations have appeared to record an understanding by Counsel or one of the applicant's solicitors of the effect of a passage in the draft or to record suggestions made for the preparation or conduct of the applicant's case which were not directed to the provision of a fresh or revised report by the expert, I have sustained the claim of privilege.

In Ryder v Frohlich [2005] NSWSC 1342, Barret J, after quoting from Interchase, said [12]:
The point made here is that privilege can only attach to documents which embody communication between the expert and the litigant by whom the expert is retained (or the litigant's lawyer). A draft report prepared by the expert is not, of its nature, such a communication. It may be that the draft report is, in fact, given or sent by the expert to the litigant or the litigant's lawyer, but that does not change its character as something prepared by the expert, which is not intended to be a means of communication with the litigant or lawyer.
Brookfield v Yevad Products Pty Ltd [2006] FCA 1180 is a Federal Court decision where a claim for privilege over a draft expert report was upheld. Applying the principles in Southcorp and finding that the draft was communicated to the then solicitors for the respondent for the purpose of the conduct of the litigation, Mansfield J found that the report was privileged from production. Mansfield J also observed [15] ‑ [17]:
I do not think that Lindgren J's principle (3) in Southcorp should be read as suggesting that a draft report provided by an expert to solicitors for the purpose of litigation is not itself privileged. It operates precisely as a communication for the purposes for which privilege exists. That says nothing about the status of the expert's copy of such a document. However, if a draft of a report (as distinct from working notes and field notes and other documents used by an expert to form an opinion) encompassed within principle (3) is not in fact communicated to solicitors, the draft of that report may nevertheless have been prepared for the purpose of recording the views of the proposed expert and intended by the expert as a means of communication to a party's legal adviser. Provided that document was brought into existence for such a purpose, that is to record information to be submitted to a solicitor for the purpose of litigation, it may be privileged even in the hands of the expert. That is an issue as to characterisation, a point recognised both by Lindgren J in Southcorp and by Barrett J in Ryder upon a careful reading of their Honour's respective remarks. Some drafts may not have that character, so in some cases evidence may be necessary as to the characterisation of the particular document held by the expert. In Interchase Corporation Limited (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1) [1999] q Qd R 141 at 162, Thomas J pointed out the reason why neither principle nor policy should protect from inspection documents which an expert generates from the information which the expert collects in order to form an opinion. His Honour did not indicate that the formation of the opinion itself would not itself be privileged, as he did not need to. Pincus JA in that case at 148 - 149 suggested that the formation of the opinion of the expert itself is not privileged, but a report on that information communicated to the party's legal adviser is privileged.
Those remarks are unexceptionable observations of principle. The opinion of any expert is not privileged. If subpoenaed to give evidence which is otherwise admissible, the expert must give that evidence. The report or a draft of the report by an expert containing that opinion, if brought into existence for the purpose of a privileged communication, and if communicated on a privileged occasion, it is clearly privileged. If the intention of the creation of the draft report was that it be communicated but, for some reason it was not in fact communicated, I do not think that its non-communication necessarily leads to the loss of the privilege which would otherwise attach to that document. Obviously, sometimes, there will be different questions to decide as to the status of a particular document or document held by a third party expert.
For the sake of completeness, I note that the decision of Bleby J in Harris Scarfe Ltd (Receivers & Managers Appointed) (in liq) v Ernst & Young (No 6) [2006] SASC 148 concerning draft expert reports reflects the application of the different rules obtained under the Supreme Court Rules (SA) and so is not directly in point.
In a Victorian case Linter Group Ltd v Price Waterhouse (a firm) [1999] VSC 245, Harper J refused an order to make an order to produce a draft expert report. He said [16]:
:... an expert is surely permitted, indeed to be encouraged, to change his or her mind, if a change of mind is warranted. Just as a judge ought never to allow publication of a draft of judgment, in part because it is necessary to preserve the freedom to change his or her mind on further reflection about the case, so experts should not be inhibited by fear of exposure of a draft from changing their minds when such change is warranted by the material then before the expert.
The reasoning of Harper J in the Linter Group decision was applied by Lloyd J in Filipowski v Island Maritime Ltd [2002] NSWLEC 177, where, in criminal proceedings, it was held that a draft expert report was privileged from production. Lloyd J said at [22]:
The comparison by Harper J of a draft expert's report with a draft judgment is, in my opinion, valid. In my experience, it is not unusual for a judge to walk off the bench at the end of a case and prepare a draft judgment leading to a particular conclusion. However, as one's reading and thinking about the case develops over the ensuing weeks, it is not unusual for successive drafts to be completely re-written, leading to the opposite conclusion. I agree with Harper J that this is to be encouraged. So too, with experts. They may be discouraged from reformulating their opinions and conclusions, or changing their minds after further reading or examination if their drafts were not the subject to privilege.
White J in New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258, also took into account the observations of Harper J in the Linter Group in upholding a claim for privilege over draft expert reports. White J noted at [30] that draft reports or working notes that were prepared by an expert witness for the dominant purpose of a party to proceedings being provided with legal advice would be privileged even if they were retained by the expert. White J also stated [53]:
The question is not merely whether it could be said that the privileged materials were used in such a way that they could be said to influence the content of the report, but whether it could be said that they influenced the content of the report in such a way that the use or service of the report would be inconsistent with maintaining the privilege in those materials, such as, where it would be unfair for the party to rely on the report without disclosure of those materials. Where an expert’s report is submitted to a party’s legal advisers so as to be put into a form which will ensure that it is admissible, it can be said that the privileged communications between the expert and the lawyers have influenced the content of the report, in the sense of its form, although not in the sense of the formulation of the substantive opinions expressed by the expert. Likewise, privileged communications between an expert and the party’s lawyers whereby material information is provided to the expert in the form of assumptions or documents may well influence the content of the report. However, an expert’s report is required to state what material and assumptions are relied on. Use of a final report, which refers to such materials and assumptions, is not inconsistent with maintaining confidentiality in the communications which produced the final product.
From my review of the authorities, whether a draft expert report is privileged (ie, there is no implied waiver of the privilege) may depend upon two things:
1.The purpose for which the draft came into existence. The majority of the cases which I have reviewed indicate that if the draft expert report is brought into existence for the purpose of communication to a party to the litigation or that party's lawyer, then it is privileged.
2.The jurisdiction in which the matter is raised, including court guidelines, legislation, or rules which apply.
There are also cases which have dealt with a claim for legal professional privilege by a party whose lawyers have had communications with a witness retained by the other party in the litigation.
This is what occurred in Interchase and also Public Transport Authority of WA v Leighton Contractors Pty Ltd. In the latter case, the Public Transport Authority (PTA) and Leighton Contractors were engaged in litigation in the Supreme Court over the construction of the Perth‑Mandurah railway. The contract between them contained a rise and fall provision which was to be governed by a table published by the Australian Bureau of Statistics (ABS). Witness statements were obtained by the solicitors for the PTA from three ABS employees. Leighton Contractors then applied for and obtained orders for non‑party discovery against ABS. The PTA applied to seek prevention of the inspection of documents discovered by ABS, which were draft statements of witnesses and communications between the solicitors for PTA and ABS' solicitors and employees, on the ground of legal professional privilege. There was no express assertion of confidentiality in the documents in question. Le Miere J dismissed the application, holding that the communications were protected by privilege only if ABS owed a duty of confidentiality to PTA. It was held on appeal that there was sufficient confidentiality in the case to sustain PTA's claim for litigation privilege in relation to the documents in the hands of the witnesses.
McLure JA (with whom Steytler and Miller JA agreed) [27] ‑ [28] specifically followed the decision of Interchase, observing that:
… Pincus JA considered whether experts are to be treated differently from non-expert witnesses. He said (at 145):
[W]e were referred to authority for the proposition, which can hardly be doubted, that an expert opinion is not supposed to be simply an argument for one side or the other, but an impartial opinion; that may be thought to throw doubt on the view that the side which happens to have engaged the expert can prevent disclosure of, for example, the expert's working papers. But in my opinion the notion that the expert status of the witness makes a difference is fallacious; there is no property in any witness expert or inexpert, nor may a party intending to call a witness (whether or not a statement has been taken from that witness) prevent communication between the witness and any other party.
I respectfully agree with Pincus JA. Any conflicting contractual or equitable duties owed by the expert to the client cannot prevail over compulsory court process. The Court upheld the claim for privilege in relation to documents that fell within the litigation privilege category. There was no suggestion that the privilege was only available if the valuer owed a duty of confidentiality sufficient to entitle the client to restrain the witness from disclosing the content of the communications.
Other cases which have considered a situation where one party either speaks to or wishes to call an expert witness retained by the other party include R v Ward (1981) 3 A Crim R 171, Sendy v Commonwealth of Australia [2002] NSWSC 1109 (applying Re L [1997] AC 16, 34) and Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [2005] WASC 255. All of the authorities have confirmed the principle that there is no property in a witness. The fact that an expert or other potential witness has already been approached by one party and provided reports or a statement to that party, does not preclude the other party from calling that witness, although the witness cannot be compelled to disclose the contents of communications between himself and the first party's legal adviser, as these are privileged: R v Ward (178 ‑ 179); Sendy v Commonwealth of Australia [17] and Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [142] – [149].
In Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd the defendant brought an application for an injunction to restrain the plaintiff dealing with an engineer who had been previously engaged by the defendant. That injunction was not granted, although Johnson J was prepared to make orders to preserve the defendant's confidentiality. Johnson J analysed the cases relating to the situation of pre-trial communication with such a witness and observed [150], [151]:
… the authorities make it clear that the expert witness is not entitled to divulge confidential or privileged information. When considered together with the authorities on the protection of confidential information it is clear that any report or other documentation which meets the test of confidentiality set out in Coco v AN Clark, as extended in Corrs Pavey Whiting & Byrne v Collector of Customs, at 443, will be protected by injunction where appropriate. Consequently, where a professional person is engaged to provide an expert report, the report itself is a confidential document and that confidentiality will be breached if the report is provided to any other party unless the information in the report is already in the public arena or confidentiality has otherwise been waived. Further, documents brought into existence for use in legal proceedings including witness statements (which would include reports from expert witnesses) are privileged documents protected from production. Although in this case RMD do not rely on privilege as the basis of the application for an injunction, as confidentiality is an integral component of the claim for privilege from production, the proposition supports the argument that reports of expert witnesses taken by one party when legal proceedings are pending, intended or reasonably apprehended, cannot be divulged to another party without a breach of confidentiality occurring: Australian Competition & Consumer Commission v Australian Safeway Stores (1998) 81 FCR 526 per Goldberg J at 563.
It can be seen from this analysis that a court will not intervene to prevent an expert witness from giving evidence on behalf of another party but will take appropriate action to prevent the witness from disclosing confidential or privileged information. (bold my emphasis.)
There have been cases where the court has been prepared to grant an injunction to restrain a witness from exposing confidential information: for example see Protec Pacific Pty Ltd v Cherry [2008] VSC 76; Australian Leisure and Hospitality Group Pty Ltd v Dr Judith Stubbs [2012] NSWSC 215.
Finally I must mention two of the cases relied upon by the plaintiff in this action.
The first is Richards v Kadian [2005] 64 NSWLR 328, which confirms the existence of doctor/patient confidentiality. In that case proceedings were commenced by an infant and his parents, alleging negligence against a doctor. The defendant doctor sought to interview two specialists who were treating the infant plaintiff. The request was refused with reliance placed on the infant's rights of doctor/patient confidentiality. The defendant then made application to the Supreme Court seeking a declaration that in commencing the proceedings the infant plaintiff had waived his right to confidentiality, and an order that the proceedings be stayed until authority was provided by the plaintiffs to enable the defendant to speak to the two specialists. Both at first instance and on appeal it was found that the commencement of proceedings itself did not waive the right of confidentiality and that the defendant doctor was not entitled to a stay.
The issues in Richards v Kadian case were novel; as Beazley JA (with whom Hodgson JA and Stein AJA agreed) observed [135] 'there is no authority binding on this court that governs the question whether the opponents waived their right to confidentiality by the commencement of proceedings'. There was necessarily a balancing exercise involved in determining whether an obligation of confidence can be insisted upon in circumstances where there is an interference with the administration of justice, and in that balancing exercise the principle that there is no property in a witness 'does not assist': [85]. The balancing exercise will depend on the nature of the confidential information, the public interest said to be affected and whether there is any other public interest consideration: [86] ‑ [87].
The question of waiver in the particular situation in Richards v Kadian was determined by the consideration that there were other means of obtaining information available to the defendant doctor to defend the allegations: [134] ‑ [135]. The New South Wales Court of Appeal's decision not to use its power to stay the proceedings rested on the failure of the defendant to show that the specialists had information, not otherwise available, that was required to ensure a fair trial: [140] ‑ [142].
The second case relied upon by the plaintiff is Grego v Great Western Insurance Brokers Pty Ltd [2006] WASC 284 (Grego). In this case the defendant's solicitors met with the plaintiff's accountant to discuss the plaintiff's financial affairs. The defendant's solicitors subsequently prepared a draft affidavit for the accountant to swear. The accountant then provided the affidavit to the plaintiff's solicitors. The defendant's solicitors, when they became aware of this, claimed legal professional privilege over the affidavit and sought orders restraining the plaintiff's solicitors from continuing to act on behalf of the plaintiff. The application to so restrain the plaintiff's solicitors was refused by Blaxell J.
In discussing the accountant's and defendant's solicitor's roles in the Grego case, Blaxell J noted [28] that the relationship between an accountant and client is, like a solicitor/client and doctor/patient relationship, a confidential one. Blaxell J then observed (where reference to Mr A is the accountant, Mr Clay is the defendant's solicitor and Mr Singh is the plaintiff's solicitor) [31] ‑ [35]:
In the present instance Mr A clearly breached his duty of confidence by disclosing information as to his client's private affairs which went beyond that previously revealed in the course of discovery in the proceedings. Although the surrounding circumstances suggest that Mr Clay may not have appreciated that he was inducing such a breach, he was certainly aware of the objective facts from which that conclusion must necessarily be reached.
Given that the contents of Mr A's draft affidavit were already privileged by reason of the duty of confidence that he owed to Mr Grego, the obvious question arises of how that same information could become subject to legal professional privilege in the hands of the defendants. I asked this question of counsel during the course of submissions but they were unable to provide any assistance.
I am not aware of any authorities on the point. However, in my view, if a solicitor obtains a witness statement or draft affidavit from a witness in circumstances where there is an obvious breach of a duty of confidence owed by that witness to the opposing party, then there can be no claim to privilege over the document against that other party. The reason for this is that the solicitor must be taken to know that the statement was made by the witness without the consent of the opposing party. Obviously, there can be no waiver of the pre-existing privilege without that consent.
Alternatively, and if I am wrong in that view, then I consider that Mr Clay necessarily waived any privilege that the defendants had in the draft affidavit by leaving it with Mr A. That conduct was inconsistent with any privilege being maintained given that Mr A's continuing duty of confidence obliged him to consult with Mr Grego as to the contents of the affidavit before swearing it.
It follows that Mr Singh did not breach any legal professional privilege in the draft affidavit when he received it from Mr A.

The plaintiff's submissions

The main issue raised by the plaintiff in its submissions on the defendant's claim for privilege is the alleged breach by the two surgeons of their duty of doctor/patient confidentiality.
The plaintiff's written submissions dated 30 January 2013, filed before the application for specific discovery which I first heard on 31 January 2013 contained detailed summaries of two authorities in particular, Richards v Kadian and Grego. The plaintiff submitted that privilege could not be maintained in light of what was stated by Blaxell J [32] ‑ [33] in the case of Grego.
In the plaintiff's further submissions dated 14 February 2013, the plaintiff again focused on the issue of the alleged breach of doctor/patient confidentiality. There is also reliance on the fact that the defendant was not authorised to approach the two surgeons without the prior consent of the plaintiff, to seek further information or an opinion.
The argument advanced, as I understand it, is that there can be no claim of privilege asserted by the defendant in this case because the defendant's legal advisers obtained evidence from the two surgeons in circumstances where there is an 'obvious breach of the duty of confidence' owed by the surgeons to the plaintiff.
The plaintiff's arguments are based on public policy. It is submitted that it is clear that a duty of confidence is owed by a doctor to his or her patient and that duty is not completely or absolutely waived by the plaintiff disclosing his complete medical records, but rather there is a limited waiver confined to what is in those medical records. A defendant should not be allowed to approach the 'keepers of the confidence', without authority from the plaintiff, to elicit further information and have them give expert evidence against the plaintiff at trial. It is submitted that if this was the case, it would 'greatly diminish public confidence in patients being open and frank in their discussions with their treating medical practitioners for fear of those same medical practitioners being called to give expert evidence against them'.
In the plaintiff's further submissions, in addition to identifying the areas in which the initial substance of evidence of both surgeons were, according to the plaintiff, 'beyond the scope' of the discovered medical records, it has been submitted by counsel for the plaintiff as follows (par 11):
(b)I would add that in the subsequent formal letters of instruction to [Surgeon A] (see attachment JEW14 on page 69 of the Affidavit of Julia Wilcock filed on 24 January 2013) and to [Surgeon B] (see attachment JEW15 on page 74 of the affidavit of Julia Wilcock filed on 24 January 2013) 'the Defendant asks both doctors for an opinion on whether the plaintiff had a pre-existing rotational deformity sustained in an accident in 1979 in the Netherlands, records of which neither party has been able to obtain.
(c)The plaintiff talked about his previous accident to both [Surgeon A] and [Surgeon B] as disclosed in the medical records, but neither doctors expressed an opinion on whether there was any pre‑existing rotational deformity due to the accident.
(d)Any opinion expressed in the substances of evidence that the defendant claims privilege over that touches on that subject would have stemmed from confidential information that was not disclosed in the medical records.
Finally each party has compared the substance of evidence as exchanged for each of the two surgeons and compared statements made in those substances with the discovered medical records. There is a dispute between the parties about the extent to which there is a difference or at least any material difference between the two. However, in the plaintiff's comparison dated and filed 20 February 2013 it is submitted that:
(a)… 'that there is anything at all that is at variance with the discovered notes and reports, almost inevitably points to the conclusion that [Surgeon A] and/or [Surgeon B] must have discussed the content of their examinations and/or discussion with the plaintiff at a time when he was their patient' (par 3);
(b)… 'it is reasonable to conclude that one explanation is that there must be other material arising from examination of the plaintiff which has been disclosed by [Surgeon B] to the defendant's lawyers (from which they prepared the substance of evidence) which is not otherwise recorded in his notes or reports' (par 20). 'When and by whom they were introduced into the substance of evidence of [Surgeon B] is relevant and can only be ascertained by the plaintiff if the claim for privilege is disallowed' (par 21);
(c)in relation to Surgeon A, 'when and how the explanation (or perhaps the absence of explanation) for settling on the lower figure was reached' requires disclosure (par 23);
(d)also in relation to Surgeon A it is suggested that there is a variance in the position between the 'enthusiasm which he now expresses in support of his colleague' and what Surgeon A told the plaintiff. It is submitted that this 'remains unresolved by the claim for privilege over the draft substance'.
None of the submissions filed on behalf of the plaintiff address the usual tests as set out in Southcorp or the other authorities dealing with privilege which I have set out earlier in these reasons.

The defendant's submissions

In relation to the plaintiff's submissions concerning the alleged breach of doctor/patient confidentiality, it is submitted that there is no meaningful basis upon which the principles in either Richards v Kadian or Grego can be applied to the facts of the present case.
The defendant submits that the communications with the two surgeons only took place after:
(a)the plaintiff voluntarily provided the defendant with the medical files of each of the surgeons; and
(b)the defendant made the plaintiff's solicitors aware that the two surgeons would be called to give evidence in this case given that they would not be called by the plaintiff.
The defendant makes the point that this is not an application for a stay (as was the case in Richards v Kadian), neither is it an application seeking to restrain the solicitors for the defendant from acting in this matter (Grego). It is an application for production of documents on the basis that they are discoverable and no privilege attaches to them.
The defendant has also referred to the line of authority to the effect that there 'is not privilege in existence at common law which would protect communications between doctor and patient', referring to McNicol, The Law of Privilege (1992) Law Book Company at 339, Duchess of Kingston's case (1776) 20 State Tr 355 and Wheeler v Le Marchant (1881) 17 Ch D 675.
The defendant submits that the communications with the two surgeons were brought into existence for the purpose of collecting evidence to be used in the proceedings, that at the time the communications were obtained litigation had commenced, and the communications were prepared for the dominant purpose of the litigation.
As to the plaintiff's public policy submissions, the defendant refutes any allegation of improper or inappropriate conduct and repeats that the cases of Richards v Kadian and Grego turn on their own facts and do not apply to the present case. The defendant relies upon the principles in relation to discovery as enunciated by Lindgren J in the Southcorp case. Reliance is also placed on the Linter Group decision [16], Brookfield v Yevad Products Pty Ltd [15]; Re Southland Coal Pty Ltd (recs and mgrs apptd) (in liq) (2006) 59 ACSR 87 [16] – [20] and Filipowski v Island Maritime Ltd.
It is submitted there are no compelling public policy arguments in this case which would otherwise justify an order that the communications between the defendant's solicitors and the experts were not subject to legal professional privilege and no evidence to suggest that privilege had been waived.

Inspection of the documents over which privilege is claimed

The defendant has provided for my inspection copies of the relevant documents as discovered. I have a discretion to inspect these and if I exercise that discretion it does not waive the privilege: Rules of the Supreme Court 1971 O 26 r 12(2): see also Grant v Downs (1976) 135 CLR 674, 689; Yokogawa Australia Pty Ltd v Alstom Power Ltd [2009] SASC 377; (2009) 262 ALR 738 [112] ‑ [118].
In the plaintiff's application for specific discovery, in the initial orders sought for production (par 4(b)), it was suggested that if the defendant did not produce the documents then they should be provided to the court for determination as to whether all or any of them are to be provided for inspection to the plaintiff. In my view inspecting the documents is the most expedient way of determining the matter.
I have inspected the documents numbered 4, 7, 8, 10, 11, 16, 18 ‑ 22 on the list of documents. The defendant has also provided privileged submissions in relation to the draft substances of evidence of the two surgeons, which I have also read.

Findings on the claim for privilege for the communications and draft substances

While Richards v Kadian confirmed that a duty of confidentiality exists between doctor and patient, Beazley JA [9] also observed that there is a difference between confidential information and privileged information:
Underpinning these issues is the notion that confidential information is not formally protected by the law in the same way as privileged information is protected. In the case of material that is privileged, it is protected to the extent that is inadmissible in evidence. Confidential information is not inadmissible in court proceedings. However, there are circumstances in which the law will protect confidential information from being disclosed to a third party. The extent to which the law will do so when litigation has been commenced is at the heart of this matter.
Beazley JA also confirmed [94] that:
There is no doubt that if there has been a waiver of privilege or confidentiality, then the waiver operates so that whatever rights were hitherto protected no longer have the relevant protection …'
In Richards v Kardian the issue was, of course, whether there had been a waiver of the right to confidentiality by the commencement of proceedings.
Counsel for the plaintiff in the hearing before me on 31 January 2013 conceded, properly in my view, at ts 50, that confidentiality in the reports and the notes from the surgeons in this case was 'clearly waived'. From the evidence in the affidavits of Julia Elizabeth Wilcock, a solicitor employed by the solicitors for the defendant, sworn 7 August 2012 and 24 January 2013 to which reference was made in the hearings before me, on 4 February 2010 the plaintiff's solicitors wrote to the defendant's solicitors enclosing the medical notes of Surgeon B. The medical notes of Surgeon A were provided under cover of a letter from the plaintiff's solicitors dated 9 February 2010. Each of their reports has been discovered and annexed to the affidavits of Ms Wilcock.
In my view both Richards v Kardian and Grego can be distinguished from this case, both on their facts and in relation to the issues dealt with. As can be seen from the passage from Richards v Kadian [9], the issues in that case as I have set out above in [39] – [41], and the other authorities I have discussed, confidentiality (or a breach of a duty of confidentiality) and legal professional privilege, while they may overlap, are different issues. The plaintiff here is not applying for a stay of the proceedings, as in Richards v Kardian, nor an injunction to restrain solicitors from continuing to act, as in Grego.
I consider I should determine this matter on the basis of the authorities dealing with the issue of whether a document, either discovered or subpoenaed, is privileged from production on the ground of legal professional privilege or litigation privilege and in particular the authorities of Southcorp, Interchase and the Court of Appeal decision in Public Transport Authority of WA v Leighton Contractors Pty Ltd.
If I am wrong in that view, applying Grego [33] as the plaintiff has urged me to do, I am not satisfied from any of the material before me that there was an obvious breach of a duty of confidence owed by the two surgeons to the plaintiff.
I have considered the two comparisons prepared by the parties. To the extent that there are or may be factual discrepancies as identified by the plaintiff between the substance of each surgeon and the medical records, or there are matters of opinion expressed by each surgeon in the substance which had not been previously expressed in their reports, I am not satisfied that this arises from any breach of doctor/patient confidentiality. An expression of opinion on the outcome of the plaintiff's surgery, not previously set out in an earlier report, does not necessarily lead to a conclusion that the surgeon used or disclosed confidential material which had not previously been disclosed.
I am unable to accept the submissions made on behalf of the plaintiff (set out above [50]) to the effect that anything at all in the substance which varies in any way from the discovered notes and reports points to the surgeon having discussed undisclosed confidential material with the defendant's lawyers. In my view, that is not the only inference which can be drawn. Some of the variances may be explained, as counsel for the plaintiff himself suggested (ts 56), by poor drafting of or clumsy expression in the substance. Having inspected the documents I do not consider that it could be said that undisclosed confidential information was discussed or communicated between the defendant's lawyers and each surgeon. I am not able to conclude as the plaintiff has conjectured, and urged, that either surgeon disclosed information which went beyond that previously disclosed in the litigation.
I should also observe that whether or not (if the documents were to be produced for inspection) the plaintiff could establish the matters in the plaintiff's submissions, as I have set out in [69] and [70], is not in issue in the trial. These matters pursued by the plaintiff are and could only ever be collateral issues. The issue at trial will be whether the surgery performed on 3 April 2007 was negligently performed and, as I understand it, that will involve an inquiry as to what degree of internal rotation deformity the plaintiff suffered as a result of the surgery.
I do not consider that there are any public policy matters to justify an order for production on the ground that the communications between the defendant's solicitors and the two surgeons are not subject to legal professional privilege, or litigation privilege.
It is clear from that all the communications and the draft substances of expert evidence that these were produced specifically for the purpose of discussions with the defendant's legal advisors and for the purpose of the conduct of the litigation. I am satisfied that the communications were confidential. Accordingly legal professional privilege or 'litigation privilege' applies to those documents.
In my view there is nothing unusual in lawyers being involved in the process of settling an expert report to ensure it is in admissible form and that it addresses all relevant issues. Lawyers must not, of course, rewrite the opinion of the expert, or influence the expert to change his or her opinion or amend the way in which it is expressed, particularly if this results in the written report not actually corresponding with the expert's opinion: see Harrington‑Smith on behalf of the Wongatha People v Western Australia (No 7) (2003) 130 FCR 424; [2003] FCA 893 [19], [28] and [31].
It must also be remembered that in this jurisdiction, O 36A of the Rules of the Supreme Court 1971 (WA) allows for the exchange of the substance of the evidence of an expert. Such a substance is almost invariably prepared by the solicitors for the party who seeks to call the expert. The process of production of a substance of expert evidence should be protected by legal professional privilege.
From my inspection of the privileged documents, I consider it could not be said that the defendant's lawyers influenced the content of the substance of the expert evidence of the two surgeons. In my view there has been nothing done by the defendant or the defendant's lawyers to waive the privilege over the communications which the defendant's lawyers have had with each of the two surgeons, or the drafts of the substance of the expert evidence of each of them, and there has been no act which in my view gives rise to an implied waiver. There is no unfairness in maintaining the claim for privilege.
For these reasons, I decline to order production of the documents numbered 4, 7, 8, 10, 11, 16, 18 ‑ 22 from the defendant's list of documents.

Findings on the claim of irrelevance in relation to the accounts

Before I made the orders for discovery on 31 January 2013, the main focus of both parties was on the issue raised by the plaintiff of the alleged breach of doctor/patient confidentiality by the two surgeons and the issue of legal professional privilege.
In written submissions prepared on behalf of the defendant for the hearing on 31 January 2013, par 29, it was submitted that the accounts rendered by the two surgeons were not relevant, however, no authority in support of that proposition was provided. In light of the further submissions now made by the defendant objecting to production of the two surgeons' accounts on the grounds of relevance, I have now reviewed the matter.
There is authority that, in civil proceedings, documents going solely to the credit of a witness, unless that witness' credit is an issue raised on the pleadings, would not be discoverable because they do not relate to a matter in question: Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission [2007] FCAFC 147 [102] ‑ [112]; Southern Equities Corporation Ltd v Arthur Andersen & Co (No 5) [2001] SASC 335 [10].
The basis upon which counsel for the plaintiff argued that the accounts of the two surgeons should be discovered related solely to the issue of credit; as put by counsel for the plaintiff (ts 65) 'because the question of payment in circumstances where [Surgeon B]'s credibility may very well be in issue in respect of these proceedings is relevant'. The ground upon which I made the order in relation to the discovery of the accounts was that these were relevant to the credibility of the two surgeons (ts 96). To the extent, therefore, that I made the orders on 31 January 2013 for discovery of the accounts of the two surgeons, I erred.
Atlas Copco Australia Pty Ltd v Oxair Gases Pty Ltd [2013] WASCA 43 is a recent Court of Appeal decision where one issue was whether the whole of a redacted document should be produced for inspection. At the hearing before the master, the respondent submitted that the redacted material, which related to the respondent's financial situation, was irrelevant. The master did not accept the submission and made an order requiring the respondent to produce the letter for inspection in its unredacted form. The Court of Appeal stated [21] – [22]:
The material in the redacted portion of the letter is not relevant to any pleaded issue, and it will not advance the case of the respondent or damage the case of the appellant. The appellant might be interested in the material, but mere interest in a document is no basis for ordering inspection. The master said that the material 'goes to the matrix of facts relating to the [respondent's] dealings with Carpentaria' [17]. That was an erroneous basis for determining whether the redacted material was relevant to any issue thrown up by the pleadings.
The master erred in making the order dated 5 June 2012 requiring the respondent to make the redacted material available to the appellant for inspection.

I consider I would be compounding my error if I were to require the defendant to make the accounts available for inspection by the plaintiff. The plaintiff will obviously be interested in knowing what is in the account in each case, however, the accounts are not relevant to any issue on the pleadings in this case.
Accordingly in order to rectify the situation caused by my error and to avoid injustice, I decline to order production of the two surgeons' accounts, documents numbered 6 and 17 on the list.

Conclusion and orders

I uphold the defendant's objections to production of the specified documents in the list and accordingly that part of the plaintiff's application for specific discovery relating to the production and inspection of the documents must be dismissed.
I will hear from the parties as to what orders should be made, including as to costs.