Fairhead v West Australian Newspapers Ltd [No 2]

The case before the court involved Fairhead as the applicant and West Australian Newspapers Ltd as the respondent. The dispute centred around the admissibility of an expert report prepared by an expert witness engaged by the respondent's lawyers. Fairhead sought to inspect the instructions given to the expert by the respondent's lawyers, arguing that the privilege claimed by the respondent was not applicable due to the fact that certain parts of the instructions had been quoted in the expert's report. The respondent refused to provide the full letter of instructions, maintaining that the privilege remained intact. The court was tasked with determining whether the respondent's refusal to produce the full letter of instructions was justified and whether any waiver of privilege had occurred.

The court examined the nature of legal professional privilege and its application to the instructions given to the expert. The court noted that the privilege applied to communications between a lawyer and their client for the dominant purpose of obtaining or giving legal advice. The court further considered whether the partial disclosure of the instructions in the expert's report amounted to a waiver of the privilege. The court found that the partial disclosure did not constitute a waiver, as the privilege was not limited to the actual contents of the communications but extended to the fact of the communication itself. The court also held that the respondent had not waived the privilege by quoting parts of the instructions in the expert's report, as such quotations did not necessarily reveal the substance of the legal advice or the confidential relationship between the lawyer and the client.

The court ultimately decided that the respondent was entitled to maintain the privilege over the full letter of instructions. The court emphasised that the privilege was not limited to the actual contents of the communications but extended to the very fact of the communication. The court also found that the partial disclosure of the instructions in the expert's report did not amount to a waiver of the privilege. The application was refused, but the court granted leave to renew the application at the trial. This decision underscores the importance of legal professional privilege in protecting the confidentiality of communications between lawyers and their clients, and the need for careful consideration when seeking to challenge or waive such privilege.