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
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- Case
- [2013] WADC 30
- Decision Date
CaseChat Overview and Summary
The primary legal issues revolved around the application and scope of 'litigation privilege' in the context of communications between lawyers and expert witnesses. The court was required to determine whether the communications in question fell within the ambit of litigation privilege and, if so, whether there had been any waiver of this privilege through the disclosure of expert reports. The court had to consider the principles established in previous cases, including the necessity for confidentiality in the hands of the lawyer or client, and whether the expert's report had been influenced by the privileged communications.
The court examined the communications between the defendant's lawyers and the medical experts, noting that such communications generally attract litigation privilege if they are made for the purpose of obtaining evidence to be used in the litigation. The court held that the communications and draft substances in question were indeed privileged, as they were created solely for the purpose of advancing the litigation. However, the court also noted that privilege could be lost if the expert's report relied on these communications, as this would constitute an implied waiver of privilege. In this case, the court found that there was no clear indication that the expert's report had been influenced by the privileged communications, and thus, no waiver had occurred.
The court ultimately ruled in favour of the defendant, finding that the communications and draft substances were privileged and that there had been no waiver of this privilege. The court ordered that these documents should not be produced in the litigation. This decision reinforces the importance of maintaining confidentiality in communications between lawyers and experts, while also recognising the potential for privilege to be lost if expert reports are influenced by privileged communications.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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].