Cupo v Chief Executive, Department of Transport and Main Roads

In the case of Cupo v Chief Executive, Department of Transport and Main Roads, the applicants, Paolo and Rosa Cupo, sought to determine compensation under the Acquisition of Land Act 1967. The Chief Executive, Department of Transport and Main Roads, objected to the tendering of an affidavit by a costs consultant, Mr. Adam David Bloom. The legal issues centred on whether the privilege had been waived explicitly or impliedly, and if the expert's report could be admitted without full disclosure of the underlying material. The court had to decide whether the implied waiver of privilege was applicable in this situation, considering the obligations of expert reports under the Uniform Civil Procedure Rules of 1999.

The court determined that while explicit waiver of privilege was not present, the implied waiver was applicable. The court emphasised that an expert’s opinion must be based on facts that are either proved or explicitly assumed. The court referred to several precedents, including Makita (Australia) Pty Ltd v Sprowles, where it was stated that an expert’s opinion must be based on facts that are either proved or explicitly assumed. The court also referred to Attorney-General (NT) v Maurice, which highlighted that a waiver should be implied if maintaining the privilege becomes unfair. The decision in Weidner v Cockrell further supported the view that disclosure to an expert for an opinion constitutes a waiver of privilege. The court concluded that the material underlying Mr Bloom's affidavit was subject to an implied waiver of privilege because it had been integrally connected to the litigation.

The court ruled that Mr Bloom’s affidavit would not be admitted unless all the specified items of disclosure were made to the respondent. The court ordered that the disclosure be made forthwith and reserved the right to refine its reasons for publication. This decision underscores the importance of full disclosure when expert opinions are tendered in litigation, particularly when those opinions are based on privileged material.