Matthews v SPI Electricity Pty Ltd (No 10)
[2014] VSC 44
•21 February 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2009 4788
| CAROL ANN MATTHEWS | Plaintiff |
| v | |
| SPI ELECTRICITY PTY LTD (ACN 064 651 118) & ORS (according to the schedule of parties) | Defendants |
AND BETWEEN:
| SPI ELECTRICITY PTY LTD (ACN 064 651 118) | Plaintiff by Counterclaim |
| v | |
| ACN 060 674 580 & ORS (according to the schedule of parties) | Defendants by Counterclaim |
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JUDGE: | DERHAM AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 February 2014 | |
DATE OF JUDGMENT: | 21 February 2014 | |
CASE MAY BE CITED AS: | Matthews v SPI Electricity Pty Ltd & Ors (No 10) | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 44 | |
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PRACTICE AND PROCEDURE — Subpoenas to independent experts — Inspection of documents — Client legal privilege — Express waiver of privilege in expert reports by delivery — Documentary communications between solicitor and independent experts — Draft expert reports submitted to plaintiff’s solicitors for the provision of professional legal services relating to the current group proceeding — Whether waiver of privilege in consequence of delivery of expert’s final reports — Inconsistency — Whether documents influence or underpin expert reports — ss 119, 122 and 131A of the Evidence Act 2008 (Vic) — Whether resultant waiver of privilege — No waiver — Maintenance of the privilege not inconsistent with deployment of the final report in the proceeding.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Armstrong (by written submissions) | Maurice Blackburn Lawyers |
| For the First Defendant | Mr D Farrands (by written submissions) | Herbert Smith Freehills |
HIS HONOUR:
Introduction
By summons filed 10 February 2014, the plaintiff seeks to restrain all other parties to the proceeding from inspecting 12 of 258 documents produced by Associate Professor Trevor Blackburn (Professor Blackburn) in response to a subpoena dated 14 January 2014 issued at the request of the first defendant (SPI).
The subpoena required the production of:
(a) All communications to or from Professor Blackburn, or any person assisting him, relating to the content or proposed content of the Report.
(b) All documents containing calculations by Professor Blackburn, or any person assisting him, for the purpose of the Report.
The word ‘communication’ is widely defined, and includes memoranda, file notes, minutes of meetings and other like documents. The word ‘document’ is also widely defined to mean any record of information.
On 31 January 2014, Justice J Forrest gave the plaintiff liberty to inspect, copy and uplift the subpoenaed documents, before any other party inspected them, so as to enable the plaintiff to identify whether any of the documents were the subject of client legal privilege (privilege) or were irrelevant to the issues in the proceeding. J Forrest J also required that the plaintiff file and serve any application, with supporting affidavits, in support of any claim for privilege.
Professor Blackburn produced various documents in answer to the subpoena. All the documents produced are listed in a schedule to the affidavit of Min Woei Guo sworn 7 February 2014. The application is supported by three affidavits of Mr Guo, a solicitor employed by the plaintiff’s solicitors, Maurice Blackburn Lawyers.[1]
[1]Affidavits affirmed 7 and 12 February 2014.
The plaintiff has objected to the inspection of 12 of the documents (“objection documents”), on grounds of privilege or relevance. These documents are identified in a schedule to the summons. SPI challenges the objections in respect of 6 of the 12 documents, being objection documents 1, 74, 75, 88, 89 and 90. Document 74 is the covering email by which document 75 was sent to Professor Blackburn. Thus, in effect, there are 5 documents in dispute.
The client legal privilege claimed is litigation privilege. Mr Guo deposes that the documents to which objection is taken on the basis of privilege are confidential communications that were made, or confidential documents that were prepared, for the sole purpose of the plaintiff being provided with professional legal services relating to the proceeding and that they do not fall within the scope of the waiver referred to in the rulings previously made in Matthews v SPI Electricity Pty Ltd & Others (February Ruling),[2] Matthews v SPI Electricity Pty Ltd & Others (No. 7)(October Ruling)[3] and Matthews v SPI Electricity Pty Ltd & Others (No. 8)(November Ruling).[4]
[2][2013] VSC 33.
[3][2013] VSC 553.
[4][2013] VSC 628.
In relation to some of the documents, Mr Guo deposes that they are irrelevant having regard to the terms of the subpoena because they are neither a ‘communication … relating to the content or proposed content of the report’ nor a ‘calculation’ (or record thereof).[5]
[5]Affidavit of 7 February 2014 at [13].
Further detail regarding the substantiation of the claims to privilege, or to irrelevance, are given in relation to each category of document listed below.
On 12 February 2014, I ordered by consent that the plaintiff and SPI file written submissions, that the “objection documents” numbered 1 (the notebook) and 74, 75, 88, 89 and 90 (the Draft Reports) produced by Associate Professor Blackburn be produce to the court for inspection together with a copy of Professor Blackburn’s final report filed in the proceeding on 22 August 2012 and that the Court will thereafter determine, on the papers, the disputed objections to inspection.
Background
The summons is issued in, and during the latter part of the trial of, group proceedings commenced under Part IVA of the Supreme Court Act 1986. The trial has been underway since 4 March 2013 and is anticipated to continue until about June 2014.
In the group proceedings, Mrs Matthews, as representative plaintiff, brings claims against SPI (and others) for damages for personal injuries, property damage and economic loss suffered as a result of the Kilmore East/Kinglake bushfires that occurred on Black Saturday, 7 February 2009 (the Kilmore/Kinglake Bushfire). More detail about the claims can be seen from the earlier decisions given in relation to other claims for client legal privilege.
Professor Blackburn has been engaged by the solicitors for the plaintiff to give expert opinion evidence in respect of the allegations in the proceeding concerning the Oil Circuit Recloser (OCR) device and regarding the mechanism by which the bushfire ignited, and in particular, whether the fire was probably ignited before or after the first “trip” of the OCR which was the “protection” device for the power line, or conductor, that is known as the Valley Span.[6]
[6]The Valley Span is a single wire earth return line between poles 38 and 39 of the SWER line and a part of the system known as the Pentadeen Spur SWER System.
Professor Blackburn’s final report is dated 22 August 2012 and has been filed but not tendered into evidence. He has participated in a conclave of experts conducted for the purposes of the trial, and in accordance with orders made by J Forrest J. He is scheduled to participate in a further conclave and then to give concurrent evidence during the week commencing 24 February 2014.
Mr Guo has inspected all of the documents and has identified the 12 documents that are either privileged or irrelevant. Attached to his first affidavit of 7 February 2014 is a schedule of all the documents identifying those that are the subject of privilege and those that are irrelevant. Mr Guo deposes that in the course of reviewing the documents he made inquiries of Professor Blackburn to ensure that the objections he has noted had a proper basis.[7]
[7]Affidavit 7 February 2014 at [12].
In his second supplementary affidavit Mr Guo deposed that he has had a further telephone conversation with Professor Blackburn regarding his Draft Reports.[8] Mr Guo swears that Professor Blackburn informed him that he created each of the drafts for the purpose of discussing them with the plaintiff’s lawyers in order to obtain advice and comments confined to whether the drafts were transparent as to the reasoning disclosed and as to the admissibility of the opinions expressed. He informed him that the drafts were not created to show the development of his opinions and [the lawyers] did not influence the opinions he reached as set out in the final report filed in the proceeding.
[8]Objection documents numbered 75, 88 and 90.
There are three types of Objection Document:
(a) There is one document (item 1 comprising 51 pages from a notebook produced by Professor Balckburn) to which objection to inspection is claimed on the basis of privilege and relevance. (Notebook Redactions)[9];
(b) five draft Reports to which objection to inspection is claimed on the basis that they are confidential communication conveying draft report to lawyers for advice or comment (Draft Reports);
(c) six administrative documents to which objection to inspection is claimed on the basis of privilege and relevance, in that the documents concern administrative matters relating to the giving of evidence (Administrative Documents). At present, SPIt does not press for inspection of the Administrative Documents.
[9]Affidavit of Mr Guo, 7 February 2014 at [14].
The parties agreed that for the purpose of resolving the dispute I should inspect the documents in contention, as I did in both earlier cases concerning claims for Privilege.
Applicable law
In the February Ruling,[10] I set out at [31]–[55] the relevant principles in relation to ss 118, 119, 122(2) and 126 of the Evidence Act. Central to the issues in that decision was whether the communications or documents in question—over which there were claims for Privilege—were taken into account, or otherwise underpinned or influenced, the content of expert reports SPI chose to deploy to advance its own interests.
[10]Matthews v SPI Electricity Pty Ltd, [2013] VSC 33.
In the October Ruling,[11] I adopted the same principles in determining a dispute as to claims for Privilege in respect of documents subpoenaed by SPI from an expert retained by the plaintiff.
[11]Matthews v SPI Electricity Pty Ltd & ors (No 7 ), [2013] VSC 553.
In the November Ruling, I referred to additional aspects of the cases that had been considered in the two earlier Rulings that were particularly relevant to documents, and the surrounding facts, the subject of the subpoenas in that application. I particularly referred to the decision in New Cap Reinsurance Corporation Ltd (In Liq) & 1 Or v Renaissance Reinsurance Ltd (New Cap),[12] where White J noted the following matters:
(a)Section 119 of the Evidence Act expressly applies both to confidential communications between the client and a third party, or between a lawyer acting for the client and a third party, for the dominant purpose of the client being provided with professional legal services relating to legal proceedings, and to the contents of a confidential document prepared with that dominant purpose, whether the document is delivered or not;[13] (Emphasis added) (at [20])
(b)Thus s 119(b) of the Evidence Act extends the privilege to confidential documents, whether communicated or not, provided they were brought into existence with the requisite dominant purpose. The question however is what that purpose is. If an expert prepares a draft report, or notes for the report, with the dominant purpose of a draft report (whether the precise draft then prepared by the expert or an intended later draft) being furnished for comment or advice by the lawyer, then it is privileged. If not, it is not; (at [34])
(c)Section 119 directs attention to the dominant purpose for which each confidential communication or confidential document comes into existence. The dominant purpose for which a final expert’s report or final witness statement is brought into existence would presumably be for the purpose of being laid before the Court as the witness’ evidence. Prima facie, it would not be privileged (Attorney-General (NT) v Maurice at 480). However, draft reports, and notes used in preparing a report, may stand at a different position, particularly where the expert has been retained by the party’s solicitors and it is expected that the party’s lawyers will advise on the contents of, and settle the form of, the report. There is nothing improper in such a course. It is not inconsistent with the expert’s paramount duty being the duty to the Court and not to the client retaining him or her; (at [29])
(d)It will be a question of fact, to which the expert may be required to put his or her oath, as to whether any draft reports prepared and kept by him, and working notes prepared by him or his staff, were brought into existence for the dominant purpose of the plaintiffs being provided with professional legal services. If they were prepared for the dominant purpose of a draft report being submitted for advice or comment by the plaintiffs’ lawyers, then they would be privileged under s 119. However, if they were brought into existence for the dominant purpose of the expert forming his or her opinions to be expressed in the final report, then it could be arguable that they were not made for the dominant purpose of the plaintiffs being provided with professional legal services relating to the proceedings; (at [30])
(e)The issue may not be an easy one to determine. In all probability, an expert witness retained by a lawyer for a party will prepare a draft report with the intention (and purpose) that it will set out the evidence which he or she expects to give, but also with the intention and purpose of its being considered and commented on by the party’s lawyers. If the latter purpose is dominant, the document so produced is privileged. If not, it is not privileged; (at [35]).
[12][2007] NSWSC 258.
[13](Re Southland Coal Pty Ltd (recs and mgrs apptd) (in liq) (2006) 59 ACSR 87 at [16]-[19]; Natuna Pty Ltd v Cook [2006] NSWSC 1367 at [8], [15]).
In relation to the question whether privilege is to be found to have been waived by reliance upon the final report, I held that privilege is impliedly waived in the working papers and draft reports if there is a proper basis for concluding that they contain communications or information that was taken into account by, or influenced, the expert. I noted that that there must be an indication that the documents were used in the preparation of the final report in a way that could be said to influence the content of that document. Naturally, all draft reports may be said to influence the final report. They may show the process leading to the final report. But a mere draft would only be of relevance to SPI if it could be shown that it differed from the final report because the author was motivated by a desire simply to improve the plaintiffs' case, rather than having had a genuine change of opinion or further material affecting a change to some aspect of it.
I referred to the situation where there was a change of an opinion to suit the plaintiff’s case as a result of influence from the plaintiff or her advisors and said that this would be entirely improper. However, I observed that an expert is permitted, indeed to be encouraged, to change his or her mind, if a change of mind is warranted. Experts should not be inhibited by fear of exposure of a draft from changing their minds when such change is warranted by the material then before the expert.[14] I quoted the observations of White J observed in New Cap:[15]
The question is not merely whether it could be said that the privileged materials were used in such 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 of the report in such a way that the use or service of the report would be inconsistent with maintaining the privilege in those materials, such as, where it would be unfair for the party to rely on the report without disclosure of those materials. Where an expert’s report is submitted to a party’s legal advisers so as to be put into a form which will ensure that it is admissible, it can be said that the privileged communications between the expert and the lawyers have influenced the content of the report, in the sense of its form, although not in the sense of the formulation of the substantive opinions expressed by the expert. Likewise, privileged communications between an expert and the party’s lawyers whereby material information is provided to the expert in the form of assumptions or documents may well influence the content of the report. However, an expert’s report is required to state what material and assumptions are relied on. Use of a final report, which refers to such materials and assumptions, is not inconsistent with maintaining confidentiality in the communications which produced the final product.
[14]Per Harper J (as he then was) in Linter Group Ltd v Price Waterhouse [1999] VSC 245 at [16].
[15][2007] NSWSC 258 at [53].
Draft Reports and the Notebook
I consider below the Draft Reports and the Notebook Redactions separately. However, they are interrelated as parts of the Notebook concern meetings with the plaintiff’s lawyers to discuss Draft Reports.
Mr Guo gave evidence that he had reviewed the Objection Documents individually, together with the final report of Professor Blackburn. He gave evidence based on his review and after making enquiries of Professor Blackburn. In relation to the Notebook Redactions his evidence, in his first affidavit of 7 February 2014, is that the redactions to the Notebook made by him and marked ‘privilege’ identify that:
…the objection is made on the ground of litigation privilege, because the entry is a record of a confidential communication concerning a draft report prepared for the dominant purpose of submission to the plaintiff’s lawyers for advice or comment.(at [14]).
SPI also asserted that there are further bases for the objection to inspection of the Privileged Notes and the Draft Reports, namely, that, after review by Mr Guo:[16]
(a) none of the documents disclose matters which could reasonably be said to have influenced or underpinned the formulation of the substantive opinions expressed in the final report; and
(b) disclosure could not reasonably be said to be necessary to afford a proper understanding of the final report.
[16]FirstGuo Affidavit at [17].
As the plaintiff has pointed out, correctly in my view, these matters are relevant to whether the material has lost its privilege because of the use to which it has been put.[17]
[17]Plaintiff’s written submission in reply dated 13 February 2014.
The evidence of Mr Guo is based, as I have said, on his review of the documents, together with the final report of Professor Blackburn, and enquiries made of Professor Blackburn in the course of carrying out that review to ensure that the objections have a proper basis.[18]
[18]Mr Guo’s first affidavit of 7 February 2014 at [10]-[12].
In the November Ruling[19] I observed (at [51]) that it would be preferable to have the expert himself swear to the status of the documents rather than having a solicitor give evidence based on an inspection of documents.[20] But in that instance there was no evidence on information and belief from Dr Barter, as there is in this case from Professor Blackburn.
[19]Matthews v SPI Electricity Pty Ltd & Ors (No 8) [2013] VSC 628.
[20]See also para [10(d)] of the Judgment in which sets out observations of White J in New Cap Reinsurance Corporation Ltd (In Liq) & 1 Or v Renaissance Reinsurance Ltd (New Cap) [2007] NSWSC 258 at para [30], His Honour stating that the expert may be required to put his or her oath as to whether any draft reports prepared or kept by him and working notes prepared by him or his staff were brought into existence for the dominant purpose of the plaintiff being provided with professional legal services.
By letter dated 10 February 2014, Herbert Smith Freehills requested on behalf of SPI that Professor Blackburn should himself swear an affidavit stating whether the Draft Reports and communications reflect the evolution of his own work and ultimately shaped the relevant opinions that exist in his final report dated 22 August 2012, how the Draft Reports otherwise influenced his final opinion, and the purpose for preparing the Draft Reports. The letter did not specifically refer to the Notebook, but SPI submitted the same considerations affect the issue of privilege over the Privilege redactions to the Notebook.
Rather than Professor Blackburn making an affidavit, Mr Guo filed and served his second supplementary affidavit on 12 February 2014. That affidavit does not set out Professor Blackburn’s own expression of why he prepared the notes covered by the Notebook Redactions or the Draft Reports. SPI submitted that for this reason the statements in paragraph [5] of that affidavit of Guo can be given no weight.
In paragraph [5] of that affidavit, Mr Guo deposed that he had had a further telephone conversation with Professor Blackburn regarding his Draft Reports.[21] Mr Guo swears that Professor Blackburn informed him that he created each of the drafts for the purpose of discussing them with the plaintiff’s lawyers in order to obtain advice and comments confined to whether the drafts were transparent as to the reasoning disclosed and as to the admissibility of the opinions expressed. He informed him that the drafts were not created to show the development of his opinions and [the lawyers] did not influence the opinions he reached as set out in the final report filed in the proceeding.
[21]Objection documents numbered 75, 88, 89 and 90.
The summons in this matter has been issued returnable before me as a matter of some urgency. Professor Blackburn is to participate in a conclave of experts on Monday 24 February 2014. Evidence is anticipated from him shortly thereafter. There is no explanation given for the absence of an affidavit from Professor Blackburn, but it may be inferred that he is otherwise engaged. It seems to me that the application is interlocutory and that hearsay evidence is admissible.[22]
[22]See Rule 43.03 of the Supreme Court (General Civil Procedure) Rules 2005 and Worldwide Enterprises Pty Ltd v Silberman [2010] 26 VR 595 at [15]- [17].
SPI submitted that the relevant test for determining whether the Notebook Redactions and Draft Reports are privileged is that set out in New Cap at para [53], quoted above at paragraph 23 The question is whether it could be said that the Notebook Redactions or any of the Draft Reports influenced the content of Professor Blackburn’s final report in such a way that the use of that final report by the plaintiff in the trial would be inconsistent with maintaining the privilege in the Notebook Redactions or each of the Draft Reports, so that it would be unfair for the plaintiff to rely on the final report without disclosure of the Notebook Redactions or the Draft Reports (or some of them as the case may be).
The plaintiff relied on the same tests and submitted that the approach taken in the November Ruling should guide the present application.
SPI submitted that to determine whether the Notebook Redactions, or any of the Draft Reports, influenced the content of Professor Blackburn’s final report in such a way that the use of the final report by the plaintiff in the trial would be inconsistent with maintaining the privilege claimed, that the Court should inspect the Notebook Redactions and Draft Reports to assess:
(a) whether the Notebook Redactions or Draft Reports reflect the evolution of Professor Blackburn’s own work and ultimately shaped or influenced the relevant opinions evidenced in his final report;
(b) whether the Notebook Redactions or Draft Reports indicate a change in Professor Blackburn’s opinions over time;
(c) how the matters recorded in the Notebook Redactions otherwise influenced the opinions in his Draft Reports or the final report;
(d) the purpose for recording the matters in the Notebook Redactions and the purpose for preparing the Draft Reports;
(e) whether the Notebook Redactions or Draft Reports should be disclosed to SP AusNet to afford a proper understanding of the final report.
The redacted entries in the notebook fall in to two categories. They are either:
(a) working notes, not being calculations, and therefore not within the scope of the subpoena (and thus irrelevant for present purposes) (Irrelevant Working Notes); or
(b) records of communications to and from the plaintiff’s lawyers, in the nature of advice and comment, as to the need for referencing of source materials or as to transparency of the reasoning set out (and therefore the admissibility of the opinions reported) in his drafts (Privileged Notes).
The copy of the notebook produced by agreement for inspection by me has been marked to indicate the entries which are:
(a) Irrelevant Working Notes that are the subject of the subpoena (these are typically working notes not being calculations) – these are outlined in orange highlighter; or
(b) Privileged Notes that are within the subpoena, but are the subject of claims for Privilege - these are outlined in blue highlighter.
The Draft Reports
The Draft Reports are Objection Documents 75, 88, 89 and 90. I have examined the Draft Reports with a view to answering the questions posed by SPI, wide ranging though they be. There are very few Draft Reports produced.
The first in point of time are documents 88 and 89, each said to be produced on 1 August 2012. They are very much alike, with only minor apparent differences. They are shorter than the final Report, as they do not include the final Summary of Events and various of the sections of the final Report expand on sections included in these drafts, but in a way that presents the material with greater clarity without, so far as I can discern, any impact on the substance of the opinions expressed.
The Notebook includes notes of a meeting between Professor Blackburn and the plaintiff’s lawyers on 1 August at which a Draft Report was discussed. I have examined these notes.
The next Draft is document 90, said to be produced on 14 August 2012. It is significantly expanded in some sections compared with the earlier Draft Reports referred to above. There appears to be no substantive change of opinion between this Draft and the final Report.
The Notebook includes notes of a meeting between Professor Blackburn and the plaintiff’s lawyers on 14 August 2012 at which a Draft was discussed. I have examined these notes.
The last Draft is document 75. It is very much like the final Report.
I consider that the changes between the Drafts reflect the evolution of the form rather than the substance of Professor Blackburn’s work and, so far as a layman can tell, do not show much change in Professor Blackburn’s opinions over time, nor do they reveal any influence by the lawyers in relation to the substantive opinions expressed that might cause the use or service of the report to be inconsistent with maintaining the privilege in respect of the Drafts.
These Drafts appear to me to be instances of the Drafts being submitted to the plaintiff’s legal advisers so as to ensure that the final Report is in a form that is clear, comprehensive (in the sense of addressing the questions asked, identifying the relevant facts needed and providing reasons for the opinions expressed) and is well presented and admissible.
There is nothing in the Draft Reports to show that the privileged communications between Professor Blackburn and the plaintiff’s lawyers have influenced the content of the Report in the sense of the formulation of the substantive opinions expressed.
In these circumstances I do not consider that it is necessary that the Draft Reports should be disclosed to SPI to afford it a proper understanding of the final report. Maintenance of the Privilege is not inconsistent with the use of the final report in the proceedings.
Notebook
Whether the Notebook Redactions should be produced for inspection by SPI turns on-
(a) In the case of the Irrelevant Working Notes – whether the claim that they fall outside the terms of the subpoena is correct;
(b) In the case of the Privileged Notes – the evidence to establish that the working notes were brought into existence for the dominant purpose of the plaintiffs being provided with professional legal services. If they were prepared for the dominant purpose of a Draft Report being submitted for advice or comment by the plaintiffs’ lawyers, then they are privileged under s 119. However, if they were brought into existence for the dominant purpose of the expert forming his or her opinions to be expressed in the final report, then they were not made for the dominant purpose of the plaintiffs being provided with professional legal services relating to the proceedings.
Irrelevant Working Notes
SPI submitted that when reviewing the Notebook in its un-redacted form, I should to take into account that the un-redacted parts of the Notebook disclose a significant body of mathematical calculations and electrical matters,[23] and measurements on a map.[24] I was requested to consider whether any of the redacted pages relate to such calculations or other matters which may be identified in the final report or may have been the basis of matters in the final report or from which opinions in the final report may have been derived. I was also asked to consider whether the communications recorded in the Notebook Redactions demonstrate influence on the formulation of the substantive opinions expressed in the Report.
[23]For example in relation to timings of the operation of the OCR – see BLA.500.001.0001 at .0004; see also .0014 (as to electrical matters),.0016 (as to electrical matters), .0018 (as to electrical matters), .0022 (as to particle heat content), .0023 (as to wind speeds), .0037 (as to properties of the conductor), .0047 (as to distances along the Pentadeen Spur).
[24]As to the map, see BLA.500.001.0001 at 0049.
I have inspected the Notebook. The entries in the notebook which are said by the plaintiff to be Irrelevant Working Notes, and that do not include calculations, are of that character and are therefore not within the description of the documents in the subpoena. I say nothing about whether, if that were not so, they would nevertheless be privileged on the principles I have set out above, save that:
(a) I am unable to determine whether any of the Irrelevant Working Notes relate to the calculations in fact disclosed;
(b) some of the matters in the Irrelevant Working Notes relate to matters which are identified in the final report. They are all notes of the kind an expert makes for the purpose of informing himself as to the matters to be dealt with in the Report under consideration.
Privileged Notes
The evidence in support of the claim to privilege in respect of the Privileged Notes is limited to evidence on information and belief given by Mr Guo. That evidence establishes a basis for the privilege claimed. SPI contends that the letter sent requesting Professor Blackburn himself make an affidavit, as referred to above, is equally applicable to the Notebook. That letter, however, referred only to the Draft Reports. The response from the plaintiff was the second supplementary affidavit of Mr Guo, which addresses only the Draft Reports, unsurprisingly. It makes no mention of further instructions from Professor Blackburn regarding the Notebook.
Given the evidence that the Privileged Notes concern Draft Reports for the dominant purpose of submission to the plaintiff’s lawyers, prima facie the notes are privileged. But, as White J observed in New Cap, if they were brought into existence for the dominant purpose of the expert forming his opinions to be expressed in the final report, then it could be arguable that they were not made for the dominant purpose of the plaintiffs being provided with professional legal services relating to the proceedings. The question is one of proof of the dominant purpose.
It is a fine line between communications and documents brought into existence for the ultimate purpose of the final report and those brought into existence for submission to the lawyers for advice when the documents are working notes capable of fulfilling both purposes;
The Privileged Notes do not show influence on the formulation of the substantive opinions expressed in the Report. They reveal notes related to matters relevant to ensuring that the final Report is in a form that is clear, comprehensive (in the sense of addressing the questions asked, identifying the relevant facts needed and providing reasons for the opinions expressed) and is well presented and admissible.
The decision of White J in New Cap, to which I refer above, shows that privileged communications between an expert and the party’s lawyers whereby material information is provided to the expert in the form of assumptions or documents may well influence the content of the Report. It also establishes, however, that:
(a) An expert’s report is required to state what material and assumptions are relied on; and
(b) Use of a final report, which refers to such materials and assumptions, is not inconsistent with maintaining confidentiality in the communications which produced the final product.
These observations are applicable to the Privileged Notes.
My inspection of the Privileged Notes reveals that they seem to me to be what Mr Guo swears they are, on both information and believe, and on the basis of his own examination. In these circumstances, and because of the urgency with which the question must be determined, I consider that to require Professor Blackburn to swear to the dominant purpose of the Privileged Notes is not necessary. The failure of Professor Blackburn himself to swear an affidavit, although unexplained, is not fatal to the maintenance of the privilege in the circumstance that my own review of the Notes confirms the evidence of Mr Guo. Further, there was no application made by SPI to cross-examine Mr Guo on his affidavits.
Conclusion
I conclude that the maintenance of the privilege claimed over both the Draft Reports and the Notebook Redactions is not inconsistent with the deployment of the final report of Professor Blackburn in the proceedings. In so far as the Notebook contains what I have called the Irrelevant Working Notes, my inspection of those notes reveals that they are as described by the evidence of Mr Guo and are not within the descriptions in the Subpoena.
Accordingly, the plaintiff is entitled to the order in accordance with her summons. I will make a declaration, and orders, as follows:
(a) The parties to the proceeding (other than the plaintiff) are not entitled to inspect documents 1 (insofar as it is redacted) and documents 74, 75, 88, 89 and 90 identified in the Schedule to the plaintiff’s Summons filed 10 February 2014, being documents produced by Associate Professor TR Blackburn in response to a subpoena dated 14 January 2014 issued at the request of the first defendant;
(b) The costs of the Summons are reserved;
(c) Reserve liberty to apply.
SCHEDULE OF PARTIES
| CAROL ANN MATTHEWS | Plaintiff |
| - and - | |
| SPI ELECTRICITY PTY LTD (ACN 064 651 118) | First Defendant |
| (ACN 060 674 580) | Second Defendant |
| SECRETARY TO THE DEPARTMENT OF SUSTAINABILITY AND ENVIRONMENT | Third Defendant |
| COUNTRY FIRE AUTHORITY | Fourth Defendant |
| STATE OF VICTORIA | Fifth Defendant |
| - and - | |
| SPI ELECTRICITY PTY LTD (ACN 064 651 118) | Plaintiff by Counterclaim |
| - and - | |
| (ACN 060 674 580) | First Defendant to Counterclaim |
| SECRETARY TO THE DEPARTMENT OF SUSTAINABILITY AND ENVIRONMENT | Second Defendant to Counterclaim |
| COUNTRY FIRE AUTHORITY | Third Defendant to Counterclaim |
| STATE OF VICTORIA | Fourth Defendant to Counterclaim |
| CAROL ANN MATTHEWS | Fifth Defendant to Counterclaim |
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