Eccles v Koolan Iron Ore Pty Ltd [No 2]

[2012] WASC 173

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   ECCLES -v- KOOLAN IRON ORE PTY LTD [No 2] [2012] WASC 173

CORAM:   MASTER SANDERSON

HEARD:   10 MAY 2012

DELIVERED          :   30 MAY 2012

FILE NO/S:   CIV 2868 of 2009

BETWEEN:   REBECCA AMY ECCLES

LEE MARCUS STERGIOU
Plaintiffs

AND

KOOLAN IRON ORE PTY LTD
First Defendant

MT GIBSON IRON LTD
Second Defendant

Catchwords:

Privilege - Claim documents provided to expert for opinion privileged - Turns on own facts

Legislation:

Nil

Result:

Inspection ordered

Category:    B

Representation:

Counsel:

Plaintiffs:     Mr M J McPhee

First Defendant             :     Mr P D C Robinson

Second Defendant         :     Mr P D C Robinson

Solicitors:

Plaintiffs:     M J McPhee

First Defendant             :     Williams & Hughes

Second Defendant         :     Williams & Hughes

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

Australian Securities and Investments Commission v Southcorp Ltd (2003) 46 ACSR 438

Temwell Pty Ltd v DKGR Holdings Pty Ltd (in liq) [2003] FCA 948

1. MASTER SANDERSON:  By this application the defendants seek production of certain documents over which the plaintiffs claim legal professional privilege.  The documents are set out and described in the first schedule part B of the affidavit of discovery of Rebecca Eccles sworn 7 October 2011.  The documents are described as follows:

   1)...

   2)Confidential communication between the Plaintiffs and WK O'Brien, dated 30 June 2011, referring to the work and advice of the Plaintiffs' solicitors given for the purposes of the Action and chain of emails following between 20 June 2011 and 2 July 2011.

   3)Email WK O'Brien to Plaintiffs and Plaintiffs' solicitor dated 28 July 2011;

   4)Email with draft report and comments, WK O'Brien to Plaintiffs' solicitor and Plaintiffs dated 1 July 2011;

   5)Working sheet showing calculations prepared for legal advice by Plaintiffs.

2. Mr O'Brien is an expert engaged by the plaintiffs for the purposes of this litigation.  He has prepared a report upon which the plaintiffs intend to rely at trial.  The defendants say, for reasons which are not presently relevant, the report is inadmissible.  That issue will have to be determined either prior to trial or by the trial judge.  But for the purposes of this application, it is important to note the fact that at present there is a dispute as to the admissibility of Mr O'Brien's report.

3. In written submissions, counsel for the defendants submitted the law regarding legal professional privilege in the context of experts' reports is summarised in Australian Securities and Investments Commission v Southcorp Ltd (2003) 46 ACSR 438. From that case, counsel drew four principles. I will repeat these as they appeared in counsel's written submissions:

   1.Ordinarily, the confidential briefing or instructions by a prospective litigant's lawyer of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts legal professional privilege;

   2.Copies of documents, regardless of whether the originals are privileged or not, prepared for the purpose of confidential communications between the client's lawyer and the expert witness, ordinarily attract privilege;

   3.Documents generated unilaterally by the expert witness, such as working notes, field notes and the witness' own draft of his earlier report do not attract privilege; and

   4.Ordinarily the disclosure of the expert report for the purpose of reliance on it in the litigation results in the implied waiver of privilege in respect of the documents in (1) and (2) above (points 4.1 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, instructins [sic] or documents.

4. Counsel further relied on the decision of Ryan J in Temwell Pty Ltd v DKGR Holdings Pty Ltd (in liq) [2003] FCA 948. His Honour said:

   It is not only information which has been affirmatively taken into account, but information which has been disregarded or discounted by the expert witness which may be useful in evaluating his or her opinion [12].

5. In his written and oral submissions, counsel for the plaintiffs disputed that either of the two cases relied upon by the defendants stood for the propositions advanced.  However, counsel did not develop that submission.  In fact, a reading of the Southcorp case makes it plain counsel has, quite appropriately, quoted almost word for word from the decision.  He has omitted reference to a number of cases to which Lindgren J referred.  Those cases support the conclusions his Honour reached.  In fact, his Honour introduces his statement of the principles by saying they were not in dispute.  Nor could they be.  The case is quoted with approval in Cross on Evidence (8thed) [25235]. So far as I am aware, there is no authority at odds with these principles.

6. Once that point is reached, it is apparent production of these documents must be ordered.  There has been an implied waiver of privilege.  As the formulation of the principles by Lindgren J makes clear, there may be exceptional circumstances which would prevent the disclosure of an expert's report upon which a party intends to rely.  Here, nothing was advanced by the plaintiffs to suggest this case is out of the ordinary.  In fact, it is hard to imagine a more straightforward situation.  Nothing in the submissions by counsel for the plaintiffs suggests anything to the contrary.

7. I am satisfied there ought be orders as sought by the defendants.  I will hear the parties as to the precise form of orders and as to costs.