In the matter of Metal Storm Limited (in liquidation) (receivers and managers appointed)

Metal Storm Limited was in liquidation, with receivers and managers appointed, when a dispute arose concerning communications between a solicitor and an expert witness. The expert, who had been engaged to prepare a report for the litigation, was initially not proposed to be called to testify. However, later in the proceedings, the opposing party sought to call the expert. The matter was brought before the court to determine the admissibility of the expert's report and communications under the litigation privilege provisions of the Evidence Act.

The court was required to determine whether the communications between the solicitor and the expert were protected by litigation privilege. Specifically, the court had to decide if the dominant purpose of the communications was to provide professional legal services, as required by section 119 of the Evidence Act. The key issue was whether the communications were made with the dominant purpose of assisting in the conduct of the litigation, even though the expert was not initially proposed to be called to testify.

The court found that the dominant purpose of the communications between the solicitor and the expert was not to provide professional legal services within the meaning of the Evidence Act. The communications were made to detail aspects of the expert's retainer and to prepare the report for potential use in the litigation. Since the expert was later proposed to be called by the opposing party, the court concluded that the dominant purpose was not to provide legal advice but rather to facilitate the expert's role in the proceedings. Therefore, the claim for privilege was not upheld.

The court ruled that the expert's report and the communications between the solicitor and the expert were not protected by litigation privilege. Consequently, the report and the communications were admissible in evidence. The court's decision clarified the scope of litigation privilege, emphasising that the privilege does not extend to communications made for the dominant purpose of detailing the expert's role and preparing a report, even if the expert is later called to testify.