Modena Engineering Australia v BRIGHTON-BEST Socket Screw

[2004] FMCA 172

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MODENA ENGINEERING AUSTRALIA v BRIGHTON-BEST SOCKET SCREW [2004] FMCA 172

TRADE PRACTICES – EVIDENCE – Legal professional privilege – draft report of an expert – not proposed to call expert as a witness.

Evidence Act 1995 (Cth)

Mann v Carnell (1999) HCA 66
Linter v Price Waterhouse (1999) VSC 245
Attorney-General (NT) v Maurice (1986) 161 CLR 475

Applicant: MODENA ENGINEERING AUSTRALIA PTY LTD (ACN 084 373 866)

Respondent: BRIGHTON BEST SOCKET SCREW MFG PTY LTD (ACN 057 343 709)

File No: MZ 1095 of 2003

Delivered on: 23 March 2004

Delivered at: Melbourne

Hearing date: 9 March 2004

Judgment of: Hartnett FM

REPRESENTATION

Counsel for the Applicant: Mr Maiden

Solicitors for the Applicant: Madgwicks

Counsel for the Respondent: Mr Castelan

Solicitors for the Respondent: Darrer Muir Fletcher

ORDER

1. The application of the respondent is dismissed and the applicant’s objection to the admission of the draft expert report is sustained.

2. The applicant’s claim to privilege be allowed.

3. Costs reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1095 of 2003

MODENA ENGINEERING AUSTRALIA PTY LTD

Applicant

And

BRIGHTON-BEST SOCKET SCREW MFG PTY LTD

Respondent

REASONS FOR JUDGMENT

1. In the applicant’s supplementary list of documents filed 25 February 2004 dated 24 February 2004 Schedule 1 Part 2 there is included

   Draft expert reports of Professor Allan Brownrigg and Dr Saman Fernando

   Such documents are said by the applicant to be privileged.  Such draft reports are said by the respondent to be discoverable.

2. In application filed 3 March 2004 the respondent sought orders for production by the applicant of a number of documents as set out in paragraph 3 of its application.  Included were the draft expert reports referred to paragraph 1 herein.  The application was supported by an affidavit sworn by Ms. Davies and filed 3 March 2004.  On the 9 March 2004 certain orders were made by consent consequent upon the bringing of the application.  The discovery issue of one of the draft expert reports remains an issue for me to determine.  The issue is whether a draft expert report of an expert who is not to be called by the applicant as a witness in the proceeding is capable of inspection by the respondent.  It is said by the applicant that the document is a draft only and was prepared for the dominant purpose of the applicant’s lawyers providing legal services to their client relating to the pending proceeding in which the applicant is a party.  Thus it is argued the document has the protection from disclosure which is accorded by the doctrine of legal professional privilege (Evidence Act 1995 (Cth) s.119). It matters not whether the document was actually used for the prescribed purpose. The respondent does not take issue with the purpose for which the document was created.

3. The privilege can be waived either expressly or impliedly.  However the Evidence Act 1995 (Cth) deals only with adducing evidence in the course of a hearing and is not expressly stated to apply to discovery and inspection of documents. Whether the privilege is lost is to be determined by reference to common law principles (Mann v Carnell (1999) HCA 66).

4. There is nothing in the evidence before me to suggest that the applicant has expressly relinquished that privilege (Linter v Price Waterhouse (1999) VSC 245 at 5). The applicant has done no more than voluntarily disclose to the respondent that the draft expert report exists. That disclosure would appear to have occurred on the 30 January 2004 in a draft court document. Upon the hearing of the matter the applicant indicated to the respondent for the first time that it did not now intend to call that expert as a witness. The applicant claims the privilege.

5. Has the applicant impliedly waived the privilege in relation to the draft expert report?  That depends upon “whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that the material or material associated with it is privileged from production” (Attorney-General (NT) v Maurice (1986) 161 CLR 475 per Gibbs J at 481).

6. The applicant has expressly disclaimed any intention to use the draft report or to adduce oral evidence in relation to the report.  Should he do so then the matter no doubt will be re-addressed by the Court.

7. I find there is no conduct on the part of the applicant wherein it has become unfair to maintain the privilege claimed.  There is no report or draft report of this particular expert which is being relied upon.  There is no reliance on the material at all at this point in the proceedings.  There is nothing more than a bare reference to the document in a supplementary list of documents.  There is no reference to the contents.

8. The document sought to be discovered is a mere draft from which a report is not to be prepared nor relied upon by the applicant.  There is as yet no conduct on the part of the applicant which results in an implied waiver of that privilege which must attach to it, given the genesis of its creation.

I, Sophie Killen, certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate:  Sophie Killen

Date:  23 March 2004