Fairhead v West Australian Newspapers Ltd [No 2]
[2015] WASC 368
•2 OCTOBER 2015
FAIRHEAD -v- WEST AUSTRALIAN NEWSPAPERS LTD [No 2] [2015] WASC 368
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 368 | |
| Case No: | CIV:2654/2002 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 2/10/15 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application refused, with leave to renew at trial | ||
| B | |||
| PDF Version |
| Parties: | ALAN FAIRHEAD DAVID REGAN & CO PTY LTD T/AS DONNYBROOK REAL ESTATE FRANCIS BARRON STEPHENSON HAYGARTH WEST AUSTRALIAN NEWSPAPERS LTD SOUTH WEST PRINTING AND PUBLISHING COMPANY LTD |
Catchwords: | Evidence Expert report Lawyers' instructions to expert to prepare report Request to inspect instructions Refusal on basis of legal professional privilege Aspects of instructions as to assumptions, questions and materials supplied quoted in report Claim to produce full letter of instructions pressed Asserted waiver of privilege Waiver denied |
Legislation: | Evidence Act 1906 (WA), s 32A |
Case References: | Australian Securities & Investments Commission v Southcorp Ltd [2003] FCA 804; (2003) 46 ACSR 438 Cobram Laundry Services Pty Ltd v Murray Goulburn Co-operative Co Ltd [2000] VSC 353 Collins Debden Pty Ltd v Cumberland Stationery Co Pty Ltd [2005] FCA 1194 Dingwall v Commonwealth of Australia [1992] FCA 1043; (1992) 39 FCR 521 Hughes v St Barbara Mines Ltd [2006] WASC 145 Kentish Council v Bellenjuc Pty Ltd [2011] TASSC 58; (2011) 21 Tas R 189 Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 Watkins v State of Queensland [2007] QCA 430; [2008] 1 Qd R 564 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
DAVID REGAN & CO PTY LTD T/AS DONNYBROOK REAL ESTATE
Second Plaintiff
FRANCIS BARRON STEPHENSON HAYGARTH
Third Plaintiff
AND
WEST AUSTRALIAN NEWSPAPERS LTD
First Defendant
SOUTH WEST PRINTING AND PUBLISHING COMPANY LTD
Second Defendant
Catchwords:
Evidence - Expert report - Lawyers' instructions to expert to prepare report - Request to inspect instructions - Refusal on basis of legal professional privilege - Aspects of instructions as to assumptions, questions and materials supplied quoted in report - Claim to produce full letter of instructions pressed - Asserted waiver of privilege - Waiver denied
Legislation:
Evidence Act 1906 (WA), s 32A
Result:
Application refused, with leave to renew at trial
Category: B
Representation:
Counsel:
First Plaintiff : No appearance (on the papers)
Second Plaintiff : No appearance (on the papers)
Third Plaintiff : No appearance (on the papers)
First Defendant : No appearance (on the papers)
Second Defendant : No appearance (on the papers)
Solicitors:
First Plaintiff : Slee Anderson & Pidgeon
Second Plaintiff : Slee Anderson & Pidgeon
Third Plaintiff : Slee Anderson & Pidgeon
First Defendant : Lavan Legal
Second Defendant : Lavan Legal
Case(s) referred to in judgment(s):
Australian Securities & Investments Commission v Southcorp Ltd [2003] FCA 804; (2003) 46 ACSR 438
Cobram Laundry Services Pty Ltd v Murray Goulburn Co-operative Co Ltd [2000] VSC 353
Collins Debden Pty Ltd v Cumberland Stationery Co Pty Ltd [2005] FCA 1194
Dingwall v Commonwealth of Australia [1992] FCA 1043; (1992) 39 FCR 521
Hughes v St Barbara Mines Ltd [2006] WASC 145
Kentish Council v Bellenjuc Pty Ltd [2011] TASSC 58; (2011) 21 Tas R 189
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258
Watkins v State of Queensland [2007] QCA 430; [2008] 1 Qd R 564
1 KENNETH MARTIN J: I am dealing with the application of the plaintiffs, seeking to compel, on the basis that there has been a waiver of legal professional privilege, the defendants' solicitors to disclose the written instructions they provided to a valuer, a Mr Ross Hughes, who has provided an independent expert report of 25 June 2014 for the purposes of his providing expert opinion evidence at a looming trial.
2 The application arises in urgent circumstances where the plaintiffs at a recent directions hearing effectively made, by counsel, a plenary demand for the production of the lawyers' instructions provided to Mr Hughes so as to commission his report. No supporting materials or submissions were provided to support that demand, in circumstances where, on the law, the entitlement to the instructions to an expert to commission a report that is exchanged is not a straightforward issue. The underlying facts in each case are pivotal, as we shall see.
3 An application to produce the instructions given to Mr Hughes by Lavan Legal (parts of which he refers to in his exchanged report) is resisted by the defendants.
4 Subsequently, the parties agreed to exchange written submissions in order for me to determine the issue on the papers.
5 As is seen above, this action was commenced in 2002. It finally looms for a determination at a trial fixed to start before me, on 30 November 2015.
6 The submissions of the plaintiff approach the contested issue on the basis of an asserted waiver of privilege, drawing my attention to the inconsistency principle, as articulated in Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 [29].
7 The plaintiffs' written submissions do not draw my attention to a particular case authority on the precise point in the area of waiver of privilege that is directly relevant to the position concerning a lawyer's instructions to an expert to prepare a report - which report is then produced and openly exchanged before trial, on the basis that it is proposed to be used to adduce expert opinion evidence at the forthcoming trial.
8 The only authority marginally helpful in this quarter referred to by the plaintiffs is some broad dicta in Cobram Laundry Services Pty Ltd v Murray Goulburn Co-operative Co Ltd [2000] VSC 353 [58] (Warren J), who observed:
As a fundamental principle, when a witness is called in order to provide expert opinion evidence all of the facts and instructions upon which that witness bases the expert opinion are admissible and subject to production …
9 The balance of those observations proceed to discuss to the 'doctrine of fairness' as being a relevant consideration to be tested in circumstances for where a claim for legal professional privilege ceases to subsist upon the basis of waiver. That position needs to be evaluated in the light of Mann v Carnell, highlighting the principle of inconsistency as the significant waiver consideration of principle - albeit a determination as to inconsistency that is still informed by considerations of fairness.
10 More helpfully to resolving the present dispute is the local decision Hughes v St Barbara Mines Ltd[2006] WASC 145, delivered by Master Newnes, as his Honour then was. At [11] of the reasons in that decision there are recounted six principles which his Honour took from the decision of Lindgren J in Australian Securities & Investments Commission v Southcorp Ltd [2003] FCA 804; (2003) 46 ACSR 438, 441 - 442. As articulated, principles four and six are of present assistance to resolving the current application. Principles four and six are in terms:
(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. (authorities omitted)
…
(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: (authorities omitted)
11 In Hughes v St Barbara MinesLtd Master Newnes under [12] and [13] referred to further case authorities relevant to the disclosure of lawyers' instructions to experts and correlative waiver of privilege issues, including Dingwall v Commonwealth of Australia [1992] FCA 1043; (1992) 39 FCR 521, 524, and then to a subsequent decision of Lindgren J in Collins Debden Pty Ltd v Cumberland Stationery Co Pty Ltd[2005] FCA 1194 [9].
12 A more recent decision of Porter J, in Kentish Council v Bellenjuc Pty Ltd [2011] TASSC 58; (2011) 21 Tas R 189 displays a comprehensive analysis of the leading case authorities concerning instructions to experts in the context of waiver of privilege contentions. Of particular note are his Honour's observations concerning principle four from Lindgren J's summary in ASIC v Southcorp Ltd. Porter J, by reference to the decision of White J in New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 [53], said at [31]:
The question is not merely whether the materials were used in 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 … in such a way that the use or service of the report would be inconsistent with maintaining privilege in those materials, such as, where it would be unfair for the party to rely on the report without disclosure …'
13 Porter J at [31] also made reference to the supporting decision in Watkins v State of Queensland [2007] QCA 430; [2008] 1 Qd R 564 and observations therein by Jerrard JA at [14].
14 Porter J concluded his reasons in Kentish Council, observing relevantly to the present application by the plaintiffs, at [52]:
If a letter of instruction is attached, then obviously the privilege in respect of that letter is waived. However, I agree with the Associate Judge's statements in par [14] of his reasons … That is, if an expert witness statement is based upon privileged material and the expert has not noted the assumptions of fact upon which the opinion is based the privilege will be lost with the delivery of the report, but where the assumptions of fact are set out the privilege is not waived. On that basis, the Council would fail in this case, although that is not the complete end of the matter. The question of fairness needs to be considered in the assessment of inconsistency. (my emphasis)
15 On my assessment, that reasoning seen above applies here.
16 By my assessment, principle four from ASIC v Southcorp, read in light of the approach to waiver of privilege, that is now grounded upon a governing principle of inconsistency (informed by considerations of fairness) as has emerged from Mann v Carnell, explained by Porter J in Kentish Council [31] - [32], is not made out by the plaintiffs, at this point, as regards Mr Hughes' report. That current assessment, of course, is not to close off a potential under principle six from ASIC v Southcorp,for the waiver issue to be re-evaluated again later, probably in the context of a trial.
17 I should say, for the purposes of conducting this urgent evaluation, that I have had access to, and given consideration to, Mr Hughes' report of 25 June 2014, particularly his references made therein at places to his instructions under par 1.2, and information which he identifies as relied upon, as identified comprehensively under par 1.3.1 (also the print media advertising information referred to under par 1.3.2). I have noted Mr Hughes' concluding observations under his par 9.0(a), (b) and (c). I have also considered his observations at par 10.0(b) as regards responding to specific questions posed to him to address in his report by Lavan Legal.
18 On my current evaluation, no observable issue of forensic prejudice or unfairness to the plaintiffs arises from the content of Mr Hughes' report. The report makes comprehensive reference to the questions posed for Mr Hughes to address and lists the materials given to him for that purpose. There is ample transparency in these identifications. The plaintiffs cannot legitimately claim to be hampered in their trial preparation in this aspect of the litigation, given what has been openly stated in the report itself.
19 Of necessity, this is a summary and provisional determination which may need to be revisited later, at the trial.
20 In the current circumstances, however, the plaintiffs' application presently made for the production and inspection of Mr Hughes' written letter of instructions from Lavan Legal, and thereby to see beyond what is explicitly mentioned within the terms of his report, must be refused. I am not currently satisfied of any relevant inconsistency in that respect in order to engage against the principle of waiver as regards the letter of instructions to Mr Hughes. Ultimately, I am not satisfied that Mr Hughes' report has been relevantly influenced as to its content by some presently unseen aspect of his instructing brief to prepare his report.
21 These evaluations are rendered in the context of the underlying statutory provisions requiring the disclosure of proposed expert evidence before trial as found within s 32A of the Evidence Act 1906 (WA) as amended and under O 36A of the Rules of the Supreme Court 1971 (WA), as regards the pre-trial requirements for the disclosure and exchange of reports of expert evidence, or a summary thereof, prior to commencement of a trial in order for there to be leave to adduce such opinion evidence at a trial.
22 The plaintiffs' application is refused upon the publication of these reasons.
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