R v P

[2001] NSWCA 473

Reported Decision: 53 NSWLR 664

New South Wales

Court of Appeal

CITATION:	R v. P [2001] NSWCA 473 revised - 29/01/2002
FILE NUMBER(S):	CA 40675/01
HEARING DATE(S):	28 November 2001
JUDGMENT DATE:	13 December 2001
PARTIES :	R - Appellant P - Respondent
JUDGMENT OF:	Mason P at 1; Hodgson JA at 3; Ipp AJA at 70

LOWER COURT JURISDICTION :	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	P29/01
LOWER COURT JUDICIAL OFFICER :	Windeyer J

COUNSEL:	Mr. S.G. Campbell for appellant Mr. K. Andrews for respondent
SOLICITORS:	Connery & Partners, Sydney for appellant W.H. Parsons & Associates, Sydney for respondent
CATCHWORDS:	EVIDENCE - Privilege - Legal professional privilege or client legal privilege - Exceptions - Whether displaced in protective proceedings - Opinion evidence - Whether admissible if based on privileged communications - Protected reports - COURTS AND JUDGES - Appeal - Objection to evidence not taken below - Whether can be taken on appeal - MENTAL HEALTH - PROFESSIONS - Lawyers - Duties to client - Privilege - Duty of confidence - Conflict of interests - Lawyer believes client incapable of giving rational instructions - Whether lawyer can take protective proceedings against client - Whether lawyer can use or disclose confidential information in such proceedings. D.
LEGISLATION CITED:	Evidence Act 1995 ss.4, 9, 119-122, 126A, 126B, 132, 134, 135 Protected Estates Act 1983 s.13
CASES CITED:	Ramsay v. Watson (1961) 108 CLR 648 Paric v. John Holland (Constructions) Pty. Ltd. (1985) 59 ALJR 844 Makita (Australia) Pty. Ltd. v. Sprowles [2001] NSWCA 305 Waterford v. The Commonwealth (1986-87) 163 CLR 54 Esso Resources v. Federal Commissioner of Taxation (1999) 201 CLR 49 at 64-5 Parry-Jones v. The Law Society [1961] 1 Ch. 1 Brayley v. Wilton [1976] 2 NSWLR 495 Church v. Price [2000] NSWSC 754 In Re L (A Minor) [1977] AC 16 Baker v. Campbell (1983) 153 CLR 53 Water v. Northmore Hale Davey & Leake (1994-95) 183 CLR 121 McD v. McD [1983] 3 NSWLR 81 Sevic v. Roarty (1998) 44 NSWLR 287 Conlon v. Conlon Ltd. (1952) 2 AllER 462 Corporate Affairs Commission (NSW) v. Yuill (1991) 172 CLR 319 Trade Practices Commission v. Sterling (1979) 36 FLR 244 at 245-6 Kennedy v. Lyell (1883) 23 Ch.D. 387 Lyell v. Kennedy No.2 (1883) 9 AC 81 Steffen v. Ruben (1966) 84 WN(Pt.1)(NSW) 264 Pownall v. Conlan Management Pty. Ltd. (1995) 12 WAR 370
DECISION:	See par.69 of judgment

CA 40675/01

P 29/01

MASON P

HODGSON JA

IPP AJA

R v. P

Judgment

1 MASON P: I agree with Hodgson JA.

2 I reserve my position on the issue upon which Hodgson JA and Ipp AJA have expressed differing views (ie the admissibility of the opinions of Dr. Bell and Dr. Lewin). Even if those opinions were entirely inadmissible the orders proposed by Hodgson JA should be made for the reasons he has given.

This is an appeal brought by leave from orders made by Windeyer J on 6th August 2001, which appointed the Protective Commissioner until further order receiver and manager of the appellant’s estate, essentially for the purpose of conducting certain District Court proceedings in which the appellant is the plaintiff.

CIRCUMSTANCES

4 The appellant was involved in a motor accident in 1979. She brought District Court proceedings for injuries arising out of that accident. The hearing of those proceedings commenced in August 1990 and continued in February 1991. The question of liability was determined in her favour, and the matter then continued as an assessment of damages.

5 Prior to the assessment hearing, there had been served on behalf of the appellant reports from psychologists Mark Blows (13th February 1976, March 1984, and December 1989) and Stephanie Whitmont (mid-1986), and psychiatrist Dr. Rob McMurdo (15th June 1990 and 3rd July 1990). The defendant in those proceedings had served reports of a psychologist R. Gardner (2nd March 1990) and a psychiatrist Dr. Sydney Smith (1st May 1990).

6 During the assessment hearing, Dr. McMurdo gave evidence to the effect that a pre-existing emotional disturbance may have been exacerbated by the accident, and that the appellant’s post-accident symptoms may be causatively connected in a functional rather than organic way with the accident. The defendant in the District Court then submitted that the appellant’s pleading and particulars did not include exacerbation of pre-existing emotional disturbance, or any disability arising otherwise than from organic injury. This submission was apparently upheld, and the proceedings were adjourned.

7 Following the adjournment, a further report was obtained for the appellant, namely a report by a psychiatrist Dr. David Bell dated 21st June 1991. It appears that this report was served on the defendant in the District Court proceedings. For the defendant, reports were obtained from a psychologist Wendy Roberts (18th June 1991) and a psychiatrist Dr. Shand (10th May 1991 and 24th May 1991).

8 The respondent to this appeal accepted instructions to act as the appellant’s solicitor in the District Court proceedings in about February 2000. The respondent’s firm was the sixth firm of solicitors to have acted for the appellant in those proceedings.

9 It appears that on 25th May 2000, final Pt.9 r.27 particulars were provided in the District Court proceedings. On the appellant’s instructions, the particulars concerning psychological problems included the following:

Personality changes and aggravation of any prior injury or disability including any cognitive, functional, emotional, affective and personality injuries which the plaintiff may be found to have had but which are denied by the plaintiff.

10 In 2000 and 2001, the defendant in the District Court proceedings served further reports, which among other things responded to Dr. Bell’s report of 21st June 1991: a report of Dr. Shand of 9th September 2000, a report of another psychiatrist Dr. Sydney Smith dated 20th November 2000, and further reports from Wendy Roberts dated 2nd January 2001 and 8th January 2001.

11 The respondent arranged for further examinations of the appellant by Dr. Bell and by another psychiatrist Dr. Robert Lewin. Dr. Bell provided further reports dated 20th March 2001 and 10th April 2001, and Dr. Lewin provided reports dated 8th March 2001 and 10th April 2001.

12 The appellant instructed the respondent not to serve those reports, giving rise to the present proceedings.

COURSE OF PROCEEDINGS BELOW

13 On 26th April 2001, there was filed a summons by the respondent as plaintiff against the appellant as defendant seeking orders that the appellant’s estate be subject to management under the Protected Estates Act and that the management of her estate be committed to the Protective Commissioner; and also a Notice of Motion seeking an interlocutory order that the Protective Commissioner be appointed receiver and manager of the appellant’s estate, with authority limited to the conduct of the District Court proceedings.

14 The Summons and Notice of Motion were supported by affidavits from the respondent essentially giving the history that I have recounted, and expressing the respondent’s concern about the appellant’s ability to give instructions. They were also supported by an affidavit from Dr. Lewin, in an annexure to which the opinion is expressed that the appellant did not appear to be giving reasonable or informed instructions; and also an affidavit by Dr. Bell, in an annexure to which the opinion is expressed that the appellant could not give informed instructions and was unable to proceed with a hearing of the District Court proceedings in the absence of an appropriate tutor.

15 The matter came before the Court on 30th April 2001 and 18th June 2001, and the Notice of Motion was heard on 6th August 2001. On the latter two occasions, the appellant was represented by Counsel. On 18th June 2001, the appellant’s Counsel sought an adjournment, so as to enable the appellant to see another psychiatrist Dr. Dyball.

16 On 6th August 2001, Counsel for the respondent called for Dr. Dyball’s report. A report of Dr. Dyball dated 9th July 2001 was produced, and the appellant’s Counsel claimed legal professional privilege in relation to that report. Windeyer J noted that an inference could be drawn that the report did not favour the appellant’s case; but expressed the view that, in Protective List matters, the Court must have regard to such material, and he admitted it into evidence.

17 For the respondent, the affidavits were read without objection, including the respondent’s affidavit annexing all the reports to which I have referred, including those of Dr. Bell and Dr. Lewin which had not been served on the defendant to the District Court proceedings, and also the affidavits of Dr. Bell and Dr. Lewin.

18 In his judgment of 6th August 2001, Windeyer J said this:

5 The present solicitor acting for her is [the respondent], the plaintiff in this matter. It is fair to say that [the appellant] has endeavoured to withdraw his instructions today or perhaps some days ago but the present matter must be dealt with not taking that into account.

6 I did raise the question of whether or not it was proper for [the respondent] to be the plaintiff in this action but I have been told that there is no other person suitable to bring these proceedings and I am satisfied that they are being brought bona fide by the plaintiff in what he considers to be the best interests of [the appellant], albeit that I have some remaining doubts about whether or not the procedure is appropriate.

7 It is not, I think, necessary to go through all the medical evidence and the history of the defendant's action in the District Court. Suffice it to say, that [the appellant] does not accept some of the evidence given in the proceedings to date and a proper question has arisen as to whether or not she is properly able to conduct her case.

8 There are reports from Dr Lewin and Dr Bell both of whom state that she is not capable of giving proper instructions to her solicitor. Dr Bell says that by reason of her unsound mind she is unable to give informed instructions or offer evidence not distorted by delusional beliefs. Dr Lewin is of the same opinion.

9 Dr Dyball, whose report as I have said is challenged but which was obtained by the solicitor acting for [the appellant] on this application, is also of the same opinion.

10 [The appellant] has addressed the Court, which I allowed her to do on a limited basis, and it is perfectly clear that her real concern is about allegations which have been made about prior events and her fear of some future happenings.

11 The clear position is that if the District Court proceedings are to be properly run and determined, then that will not happen while [the appellant] remains giving instructions to the solicitors. The evidence is that she is unable to do so in a rational way.

12 It follows from this that for her own protection somebody must be appointed who will then be able to act as her tutor in those proceedings and conduct them in a proper way. Whether or not that person would continue to instruct the plaintiff, [the respondent], is another matter. It is fair to say that on the evidence he appears to have been very patient in his endeavours to deal with the plaintiff's case. Having said that I am well aware that she does not agree with that view.

13 In all the circumstances I propose to make the orders sought in the Notice of Motion.

GROUNDS OF APPEAL

19 The appellant in person lodged a Notice of Appeal from that decision, and the matter came before me on 10th September 2001 on an application for a stay of Windeyer J’s order. In a judgment given on that day, I said this:

On 3rd September 2001, the claimant filed a Notice of Appeal from that decision; and also filed a Notice of Motion seeking an order that the order I have mentioned be stayed and quashed, an order concerning costs, and leave to present further evidence and fresh evidence. By a document handed up today, the claimant has sought an order upholding the claimant’s withdrawal of instructions from the opponent, and also an order concerning certain documents. In support of the application, the claimant has filed an affidavit of 44 pages, which I have read.

In order to decide whether a stay should be granted, it is necessary to give some consideration as to whether there are grounds of appeal which could succeed.

I note first that the appeal is brought from an interlocutory decision and therefore it cannot be brought without leave.

I would note also that an interlocutory decision of this nature is a decision which generally, and certainly in this case, has to be made not on the basis of facts as finally determined but on the basis of an assessment of rival contentions, and a judgment as to what is the best regime to be set up in the interests of the relevant parties until such time as there can be a final determination of facts in issue.

That is of some significance in this case, because part of the grounds on which the opponent sought orders in the court below concerned psychiatric opinions which were themselves to some extent based on an assessment of circumstances related to the psychiatrists by the claimant. The claimant sought before Windeyer J, and apparently wishes to seek before the Court of Appeal, to prove that the true facts are such that the opinions of the psychiatrists are vitiated. However, since the decision was an interlocutory one, that is an exercise which would normally not be undertaken at this stage. That is a matter that would only be undertaken as part of a final hearing of proceedings.

The other matter arising from the circumstances that the appeal is brought from an interlocutory decision is that there are very limited grounds on which this Court would interfere with such a decision. Since decisions are very much within the discretion of the primary judges, and this Court would interfere with the exercise of such discretion only if a real error of principle is shown, or if very plain error of discretion is shown.

Looking at the grounds set out in the Notice of Appeal as filed, I note that the grounds relate essentially to complaints as to the judge being misled, not giving proper consideration to matters, and failing to grant an adjournment. In my opinion it is very unlikely that leave would be granted to appeal from an interlocutory decision on any of those grounds.

The first ground, relating to the Court being misled and apparently being mistaken about the reasons for the claimant instructing six different solicitors, is in my view a matter which really relates to the final determination of facts, rather than the making of an assessment of what is best to do on the basis of rival contentions.

The second ground, concerning the misleading of the Court in relation to relatives, it seems to me is a matter which would be unlikely to be a ground of appeal in circumstances where, although it was put at one hearing that there were no relatives, it was brought to the Court’s attention at a later hearing that there were some relatives.

The third ground relating to late service of the motion and summons, it seems to me has no chance of success in circumstances where the actual hearing of the application did not take place until two or three months later.

The other grounds, likewise, it seems to me, are matters that either relate to matters well within the discretion of the judge, or are based on a misconception that the Court in making an interlocutory decision would make a final decision as to facts.

However, the affidavit filed in support of the motion does raise one matter which causes me some concern, and which it seems to me is a matter which conceivably might be considered a ground for granting leave to appeal and a ground on which an appeal might conceivably succeed.

The application made by the opponent was to some extent based on the opponent’s own impressions of the claimant gained in conferences held for the purposes of the District Court proceedings, and to some extent based on psychiatric reports obtained for the purpose of those proceedings. The actual psychiatric reports principally relied on in the application were psychiatric opinions given by medical practitioners who had been retained for the purposes of these Court proceedings, and had seen the claimant for that purpose, and had formed their medical opinions about the claimant principally for that purpose.

It seems to me that there is a question whether it was open to a solicitor to rely on that material for the purposes of obtaining an order, whether interlocutory or final, concerning the management of the claimant’s estate, or whether to do so involved breaches of professional privilege or confidence.

The claimant was represented before Windeyer J, and it appears that this objection was not taken; and it may be that this is a matter that would prevent successful reliance on this question on appeal. However, it is not absolutely clear to me that this is so.

I think the appropriate course is to stand this matter over for a period of three or four weeks, to give the claimant an opportunity to see if she can obtain some legal help in relation to this application, and in particular to argue the point that I have identified in this judgment.

My understanding is that no steps are to be taken in the District Court proceedings within the next month or so, and if necessary I could make an order to make sure that nothing irreversible happens in the District Court proceedings in the meantime. I would also propose to give directions to require any additional material from either side to be filed before the return date.

I think it would be appropriate to dispense with further compliance with the rules concerning the making of leave applications. I think it is desirable that the question of whether leave should be granted be decided as quickly as possible, and that there be a minimum of obstacles placed to having that decided.

I am told that the claimant has been advised that she can have Legal Aid, but that the claimant is having difficulty in locating a barrister who can assist her in this application.

I would request that the Bar Association, or Law Society, give what help they can to the claimant to provide a barrister who can deal with the matter, particularly the point I have identified in the judgment I have just given.

So, the orders that I make are these:
1. I stand the matter over to 8th October 2001 to be dealt with on that day as an application for leave to appeal from the decision of Windeyer J made on 6th August 2001.
2. I dispense with further compliance by the complainant with the rules for applications for leave to appeal.
3. I direct that on or before 24th September 2001, the opponent file and serve any additional material the opponent wishes to rely on in the application, and also any written submissions on the point I have identified.
4. I direct that no positive steps be taken in the District Court proceedings prior to 8th October 2001, and in particular there be no service of additional medical reports in that time.
5. I direct that if it is possible for the claimant, with the help of legal advice, to put on written submissions, that that be done on or before 2nd October 2001.

20 A leave application was heard on 8th October 2001, at which the appellant was represented by Mr. G. Campbell of Counsel. The following order granting leave was made:

Application for leave granted which will be restricted to three issues:
(1) The client legal privilege issue.
(2) The breach of confidentiality issue, and
(3) possible conflict of interest issue.

On the third point relating to McD v McD (1983) 3 NSWLR 91 the Court sees that as raising the question of principle, whether the Court can ever entertain an application of this nature from the solicitor of a client. Because that is the basis upon which leave is granted on that point, we do not presently see any relevance in the Affidavit which has been proffered by the opponent's solicitor and we do not give leave for that Affidavit to be added to the appeal papers.

The appeal will be heard with expedition and parties are at liberty to approach the Registrar for a date hopefully in December 2001.

21 Pursuant to that leave, a further Notice of Appeal was filed, setting out the following grounds:

1. That His Honour erred in admitting into evidence the documents referred to in the Schedule hereto in categories 1 to 3 in as much as they were subject to legal professional/client lawyer privilege.

2. That his Honour erred in admitting into evidence the reports described in the Schedule hereto in categories 1 to 3 in as much as their admission offended the Appellant's right and interest in the confidentiality of the communications that are the subject of the documents.

3. That the Court erred in principle in entertaining an application under the Protected Estates Act 1983 on the application of the Respondent in that at the time the Application was made and prosecuted he was the Appellant's solicitor and subject thereby to a conflict of duty over interest in bringing the application.

SCHEDULE
Category 1
(i) Reports of Dr. Bell of 20th March 2001 and l0th April 2001 Annexures "Q" and "T" respectively to the affidavit of the Respondent of 26 April 2001 ;
(ii) Reports of Dr. Lewin of 8th March 2001 and l0th April 2001 Annexures "R" and "U" respectively to the affidavit of the Respondent sworn on 26 April 2001.

Category 2
(i) The affidavit of Dr. Bell of 26 April 2001.
(ii) The affidavit of Dr. Lewin of 26 April 2001.

Category 3
(i) The Report of Dr. Dyball of 9 July 2001.

22 It sought orders setting aside Windeyer J’s orders, and also the dismissal of the respondent’s Notice of Motion and/or Summons.

23 The respondent put on a Notice of Contention, including the following grounds:

The Respondent further contends that even if the Trial Judge did err in considering the reports of Dr. Bell and Dr. Lewin in appointing The Protective Commissioner, such order was appropriate due to the medical evidence which had been served by both the Defendant in the District Court proceedings and the Appellant in the District Court proceedings which addressed the psychological matters and which were before the Trial Judge.

The Respondent further contends that even if the reports of Doctors Bell and Lewin were privileged the duty which the Respondent had both to the Court, when exercising its protective jurisdiction, and his duty to the Appellant required that those reports be tendered in the proceedings.

The respondent further contends that as a claim for privilege was not made before the Trial Judge the privilege was waived.

The respondent further contends that the nature of the proceedings before the Trial Judge were such that privilege could not attach to the documents as public policy would require the Respondent to release that which would otherwise be privileged information and/or reports in order for the Court to have proper and appropriate evidence to consider the appointment of a Protective Commissioner.

STATUTORY PROVISIONS

24 This appeal requires consideration of provisions of the Evidence Act and the Protected Estates Act. The relevant provisions of the Evidence Act 1995 are ss.4, 9, 119-122, 126A, 126B, 132, 134 and 135. Those sections are as follows.

4(1) This Act applies in relation to all proceedings in a NSW court, including proceedings that:
(a) relate to bail, or
(b) are interlocutory proceedings or proceedings of a similar kind, or
(c) are heard in chambers, or
(d) subject to subsection (2), relate to sentencing.
(2) If such a proceeding relates to sentencing:
(a) this Act applies only if the court directs that the law of evidence applies in the proceeding, and
(b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters---the direction has effect accordingly.
(3) The court must make a direction if:
(a) a party to the proceeding applies for such a direction in relation to the proof of a fact, and
(b) in the court's opinion, the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding.
(4) The court must make a direction if the court considers it appropriate to make such a direction in the interests of justice.
9(1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.
(2) Without limiting subsection (1), this Act does not affect the operation of such a principle or rule so far as it relates to any of the following:
(a) admission or use of evidence of reasons for a decision of a member of a jury, or of the deliberations of a member of a jury in relation to such a decision, in a proceeding by way of appeal from a judgment, decree, order or sentence of a court,
(b) the operation of a legal or evidential presumption that is not inconsistent with this Act,
(c) a court's power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding.
119. Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or
(b) the contents of a confidential document (whether delivered or not) that was prepared,
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
120(1) Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication between the party and another person, or
(b) the contents of a confidential document (whether delivered or not) that was prepared, either by or at the direction or request of, the party,
for the dominant purpose of preparing for or conducting the proceeding.
(2) (Repealed)
121(1) This Division does not prevent the adducing of evidence relevant to a question concerning the intentions, or competence in law, of a client or party who has died.
(2) This Division does not prevent the adducing of evidence if, were the evidence not adduced, the court would be prevented, or it could reasonably be expected that the court would be prevented, from enforcing an order of an Australian court.
(3) This Division does not prevent the adducing of evidence of a communication or document that affects a right of a person.
122(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.
(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made:
(a) in the course of making a confidential communication or preparing a confidential document, or
(b) as a result of duress or deception, or
(c) under compulsion of law, or
(d) if the client or party is a body established by, or a person holding an office under, an Australian law---to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.
(3) Subsection (2) does not apply to a disclosure by a person who was, at the time, an employee or agent of a client or party or of a lawyer unless the employee or agent was authorised to make the disclosure.
(4) Subject to subsection (5), this Division does not prevent the adducing of evidence if the substance of the evidence has been disclosed with the express or implied consent of the client or party to another person other than:
(a) a lawyer acting for the client or party, or
(b) if the client or party is a body established by, or a person holding an office under, an Australian law---the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.
(5) Subsections (2) and (4) do not apply to:
(a) a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or
(b) a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to a proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.
(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence by police officers).
126A(1) In this Division:
"harm" includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear).
"protected confidence" means a communication made by a person in confidence to another person (in this Division called the "confidant" ):
(a) in the course of a relationship in which the confidant was acting in a professional capacity, and
(b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant.
"protected confider" means a person who made a protected confidence.
"protected identity information" means information about, or enabling a person to ascertain, the identity of the person who made a protected confidence.
(2) For the purposes of this Division, a communication may be made in confidence even if it is made in the presence of a third party if the third party's presence is necessary to facilitate communication.
126B(1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose:
(a) a protected confidence, or
(b) the contents of a document recording a protected confidence, or
(c) protected identity information.
(2) The court may give such a direction:
(a) on its own initiative, or
(b) on the application of the protected confider or confidant concerned (whether or not either is a party).
(3) The court must give such a direction if it is satisfied that:
(a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and
(b) the nature and extent of the harm outweighs the desirability of the evidence being given.
(4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters:
(a) the probative value of the evidence in the proceeding,
(b) the importance of the evidence in the proceeding,
(c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding,
(d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates,
(e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider,
(f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed,
(g) if the proceeding is a criminal proceeding---whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor,
(h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person.
(5) The court must state its reasons for giving or refusing to give a direction under this section.
132. If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision.
134. Evidence that, because of this Part, must not be adduced or given in a proceeding is not admissible in the proceeding.

25 The relevant provision of the Protected Estates Act 1983 is s.13, which is as follows:

13.(1) Where the Court is satisfied that a person is incapable of managing his or her affairs, it may make a declaration to that effect and order that the estate of the person be subject to management under this Act.
(2) On the hearing of an application for the purposes of this section, evidence of a person's capability to manage his or her affairs may be given to the Court in such form and in accordance with such procedures as the Court thinks fit and the Court may otherwise inform itself as to the person's capability to manage his or her affairs as it thinks fit.
(3) Without limiting the generality of subsection (2), the Court may:
(a) personally examine a person whose capability to manage his or her affairs is in question,
(b) direct the Protective Commissioner to personally examine the person and to report to it on the examination, or
(c) dispense with any such examination.

SUBMISSIONS

26 Mr. Campbell for the appellant submitted that this was an important case concerning the right of a citizen to choose the direction in which her personal affairs should go, notwithstanding that lawyers might consider she was acting unreasonably.

27 In relation to Ground 1 of the appeal, Mr. Campbell submitted that category 1 and 3 documents were clearly covered by s.119 of the Evidence Act; and that category 2 documents were also covered, because it was necessary to refer to category 2 documents in order to understand the opinions expressed by the medical experts. Indeed, facts basing opinions must be disclosed: see Ramsay v. Watson (1961) 108 CLR 648; Paric v. John Holland (Constructions) Pty. Limited (1985) 59 ALJR 844; Makita (Australia) Pty. Limited v. Sprowles [2001] NSWCA 305. Section 119 prohibits the adducing not merely of evidence of confidential communications themselves, but evidence which would result in the disclosure of confidential communications.

28 Mr. Campbell submitted that the law concerning client legal privilege is not a mere exclusionary rule of evidence, but embodies an important civil liberty: see Waterford v. The Commonwealth (1986-87) 163 CLR 54 at 64-5; Esso Resources v. Federal Commissioner of Taxation (1999) 201 CLR 49 at 64-5. Except in cases of well recognised exceptions, such as the crime and fraud exceptions (s.125), neither common law legal professional privilege nor the prohibition in s.119 gives way to public interest considerations such as the exercise of the parens patriae jurisdiction. In so far as the contrary may be suggested by cases such as Parry-Jones v. The Law Society [1961] 1 Ch. 1, Brayley v. Wilton [1976] 2 NSWLR 495, Church v. Price [2000] NSWSC 754 and In Re L (A Minor) [1997] AC 16, those cases are inconsistent with High Court decisions in Baker v. Campbell (1983) 153 CLR 53, Waterford, and Esso, as well as s.119 itself. Mr. Campbell referred us also to Carter v. Northmore Hale Davey & Leake (1994-95) 183 CLR 121, which showed that legal professional privilege was not overridden even in relation to documents required to prove the innocence of a person charged with a criminal offence.

29 Mr. Campbell pointed out that objection was clearly taken to Dr. Dyball’s report, engaging the prohibition in s.119. If it were held that no objection was explicitly taken to the other material, the appellant relied on the following factors: the appellant was plainly opposing loss of legal professional privilege in that material; legal professional privilege cannot be lost by the act of a lawyer or by mere inaction (ss.122 and 132 of the Evidence Act); and it was appropriate in the interests of justice to permit a point to be taken on appeal although not taken below (see Water Board v. Moustakas (1988) 180 CLR 491 at 497.

30 Mr. Campbell submitted that if the privileged material, or even some of it, indeed even just Dr. Dyball’s report, had been excluded, there was a real chance that the decision would have been different, so the appeal should be upheld.

31 Turning to Ground 2, Mr. Campbell submitted that the protected confidences provisions of the Evidence Act would apply as an alternative, in the event that legal professional privilege was somehow displaced, and also in relation to category 2 documents. These documents were plainly communications between the appellant and medical practitioners which were protected confidences within s.126A; and although no express application was made below for the exercise of the s.126B discretion, the primary judge should himself have considered whether he was dissatisfied as to the matters set out in s.126B(3)(a) and (b).

32 In relation to Ground 3, Mr. Campbell referred to McD v. McD [1983] 3 NSWLR 81. There, Powell J said it was undesirable for a solicitor to put himself or herself in an adversary position in relation to a client, particularly where the client might wish to oppose relief. There, there was in fact no contest. In this case, the client actively opposed the order, and in that situation the solicitor should never act against the client.

33 Mr. Campbell submitted that at most, the solicitor could approach a relative or, if there was no relative willing and able to act, a trustee company, disclose no more confidential material than was absolutely necessary to justify initiating the action and, where appropriate, the making of an order under Pt.25 of the Supreme Court rules for a medical examination. Beyond that, a solicitor should not go.

34 Mr. Andrews for the respondent submitted that the respondent had no alternative but to make the application in this case, because of his duty to act in the best interests of the client and his duty to the Court to promote a fair hearing of the client’s case. If he could not use or divulge confidential and privileged information, there would be no basis on which he could get someone else to apply or obtain an order for a medical examination.

35 Mr. Andrews submitted that privilege did not apply in this case in any event, because of the effect of various statutory provisions. He submitted that s.9(2)(c) of the Evidence Act removed the restriction in the case of interlocutory proceedings. He referred to s.121(3) of the Evidence Act, and submitted that this was a case where the relevant material affected the rights of a person. Finally, he referred to s.13 of the Protected Estates Act, and submitted that the Court was empowered to inform itself in whatever way it considered appropriate.

36 Mr. Andrews pointed out that no objection was taken to any material other than the report of Dr. Dyball. He submitted that the first report of Dr. Bell had been served on the defendant in the District Court proceedings, so that there was no breach of confidentiality in relation to that report. He accepted that there might be a question as to whether privilege had been waived, having regard to the decision of Sevic v. Roarty (1998) 44 NSWLR 287, since the report of Dr. Bell had been served in accordance with directions of the Court. Mr. Andrews pointed out that having served that report of Dr. Bell, there was a duty to serve updated reports of Dr. Bell.

37 Mr. Andrews submitted that, even if the primary judge had been limited to non-privileged material, there was sufficient material for the judge to have made the order which he made, namely the reports from the medical experts of the defendant in the District Court proceedings and the opinions of Drs. Bell and Lewin expressed for the purposes of the application. The question before the primary judge was whether there was a serious question to be tried and the balance of convenience, and the material certainly showed a serious question to be tried and strongly showed a balance of convenience in favour of the orders made.

DECISION

38 It is convenient first to deal with the question of legal professional privilege and the admissibility of evidence before the primary judge. I should say at once that the Evidence Act is applicable, since protective proceedings are plainly proceedings within s.4 of the Act.

39 As regards the report of Dr. Dyball, this was objected to, and s.119 of the Act applies in its terms. In my opinion, the effect of that section is not displaced by the other statutory provisions referred to by Mr. Andrews.

40 In my opinion, s.9(2)(c) of the Evidence Act does no more than permit in interlocutory proceedings the admission of evidence which the Evidence Act says is not admissible: it does not overcome provisions of the Evidence Act which actually prohibit the tendering of certain evidence, as is the case with evidence affected by client legal privilege. (This difference is reflected in s.134 of the Act). In any event, there is no principle or rule of common law or equity that gives a court power in an interlocutory proceeding to dispense with the rules protecting legal professional privilege.

41 As regards s.121(3), in my opinion it applies only in relation to communications that affect rights directly, and not merely by way of being evidentiary as to rights created or affected otherwise.

42 One example of such a communication might be that considered in Conlon v. Conlon Limited (1952) 2 AllER 462, which concerned an alleged agreement to settle proceedings made on behalf of a client by a solicitor, where an interrogatory was directed to the client asking whether the client had authorised the solicitors to enter into the settlement. The Court of Appeal in that case held that the communication in question was not confidential, so that privilege did not arise. Another approach in New South Wales could be that this was a communication affecting the rights of parties not merely in an evidentiary way, thus falling within s.121(3).

43 As regards s.13 of the Protected Estates Act, in my opinion it is not sufficient to displace either common law legal professional privilege or s.119 of the Evidence Act. Cases such as Baker v. Campbell (1983) 153 CLR 52 and Corporate Affairs Commission (NSW) v. Yuill (1991) 172 CLR 319 stress that legal professional privilege will be displaced by statute only if the statute manifests a clear intention to do so; and in my opinion, s.13 does not manifest such a clear intention. In so far as cases such as Parry-Jones, Brayley v. Wilton, Church v. Price and In re L may suggest otherwise, in my opinion they are inconsistent both with the High Court authorities to which I have referred and with the terms of s.119 of the Evidence Act.

44 Accordingly, in my opinion the report of Dr. Dyball should not have been admitted into evidence or considered by the primary judge.

45 As regards all the other communications now objected to, they were not objected to below so that s.119 of the Evidence Act does not apply in its terms, and if and so far as the protection of legal professional privilege at general law may still be availed of, it may be too late now to seek to rely on it. On the other hand, these matters are not necessary fatal to the point being taken on appeal. There are circumstances in which an appeal court allows an appellant to rely on a point not taken below: see for example Moustakas. The Evidence Act discloses an intention that client legal privilege should not be lost by an act of an agent without the client’s authority (s.122) or by mere inaction or inadvertence (s.132). Furthermore, in a general sense, the appellant’s concern to protect her legal professional privilege was made known to the primary judge.

46 However, the general rule on appeal is that, if a point was not taken below, it will not be permitted to be taken on appeal if it could have been dealt with below by different conduct of the case by the respondent, in particular by bringing further evidence.

47 It is necessary to consider what evidence would have been admissible below had all possible objections been taken on the ground of legal professional privilege or client legal privilege.

48 Plainly the medical reports served on behalf of the defendant in the District Court proceedings would have been admissible. The evidence given by Dr. McMurdo in the District Court proceedings would have been admissible. Having regard to Sevic v. Roarty, it seems that the first report of Dr. Bell, which had been served on the defendant in the District Court proceedings but not read in those proceedings, would still have been protected by privilege. The respondent could probably not have given evidence of the content of conversations with the appellant which led him to the opinion that he could not get rational instructions. I will return to the question whether he could have given evidence directly of that opinion, without giving evidence of the conversations. The fact of obtaining medical reports from Dr. Bell and Dr. Lewin could, I believe, have been given in evidence, also the instructions not to serve those reports (whether this be because such instructions are not confidential communications or are communications affecting rights within s.121(3) of the Evidence Act). As regards the actual content of the reports, in my opinion they would have been protected by privilege. Finally, there were the opinions of Dr. Bell and Dr. Lewin expressed specifically for the purposes of this application, to the effect that the appellant could not give rational instructions: the communications upon which those opinions were based would be protected by privilege, and there is a question whether the opinions themselves could be admitted.

49 In Trade Practices Commission v. Sterling (1979) 36 FLR 244 at 245-6, Lockhart J included, as one category of things protected by legal professional privilege, “knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent”; and it is arguable that knowledge, information, belief or opinion of a solicitor or a medical expert derived from privileged communications made by the client would likewise be privileged. The authorities cited by Lockhart J as supporting that category were Kennedy v. Lyell (1883) 23 Ch.D. 387 and Lyell v. Kennedy No.2 (1883) 9 AC 81.

50 Those proceedings concerned title to land, and the actual case related to interrogatories by the defendant as to the pedigree of persons from whom the defendant had acquired his title. The plaintiff in that case answered to the effect that he had no personal knowledge of any of the matters enquired after by these interrogatories, and that such information as he had received in respect of them had been derived by him from information procured by his solicitors or their agents in or for the purpose of defending his title, and submitted that he ought not be required to make any further answer.

51 The Court of Appeal and the House of Lords upheld this claim for privilege. In the Court of Appeal, Cotton LJ at 23 Ch.D. 407-8 pointed out that the information sought was not a matter of fact “patent to the senses”, but merely “probable results and inferences” from such facts, being “the result of the solicitor’s mind working upon and acting as professional adviser with reference to facts that he had seen or heard of”.

52 In the House of Lords, Lord Blackburn 9 AC at 87, referred to two passages of Cotton LJ, and said that a matter which a party knows is not privileged simply because it was first learned from his solicitor, whereas a belief formed from a solicitor’s confidential advice is privileged.

53 Lord Watson at pp.90-91, said in effect that, if a client gains personal knowledge from plain evidence, albeit in the course of confidential communications, this is not within the privilege, but mere speculative opinions, based only on the communications are within the privilege. In that case, the belief or opinion of the client could not reasonably be separated from the confidential communications on which it was based. Lord Bramwell at pp.92-94 pointed out that it would be unfair for a party to be required to state a belief, contrary to his interests, based on uncertain grounds, and have that admissible as an admission in the case, and yet not to be able to oppose a finding in terms of that belief by stating the grounds on which it was based, thereby giving up his right to withhold a privileged communication.

54 It is to be noted also that in that case it was wholly irrelevant to any issue whether or not the plaintiff had any particular beliefs: only the facts which were or might have been the subject of such beliefs could have been relevant. That point was not referred to in any of the judgments, and it is not entirely clear to me whether it would have made any difference to the decision if the interrogatories had concerned beliefs of the plaintiff that were themselves relevant. But leaving that matter aside, it seems to me that the case is authority for the proposition that knowledge, information or belief of a client, derived from privileged communications, is itself privileged if to disclose it would involve disclosing the privileged communications themselves. That seems consistent with s.119, which prohibits the adducing of evidence where doing so would result in the disclosure of a privileged communication or document.

55 Where what one is dealing with is the opinion of a medical expert, derived in part from confidential communications to the expert from the client, one runs into the difficulty that, as a general rule, the opinion of an expert can be given in evidence only if the assumed facts on the basis of which the opinion is given are also given in evidence: see Ramsay, Paric and Makita. Certainly, where the relevant facts are assumed facts, not dependent upon the expert’s own observation, the stating of such facts is necessary in order that the opinion be admissible: otherwise, the opinion would simply be irrelevant. However, where the expert has actually observed some event, and expresses an opinion based on that observation, the position is not quite so clear: it may be that the setting out of all the factual matters observed by the expert is not necessary for admissibility, provided it is clear that the expert actually observed an event and the opinion in relation to that event is relevant. Even in the case of lay opinions, s.78 of the Evidence Act permits the giving of a lay opinion based upon what a person sees, hears or otherwise perceives, without necessarily having to give the full details of the non-opinion matters which are seen, heard or otherwise perceived. Section 79 of the Evidence Act, dealing with expert opinion, does not expressly require evidence to be given of the facts on which the opinion is based. In my opinion, in the case of an expert opinion based upon what an expert has actually perceived, admissibility does not necessarily depend upon the setting out of all the non-opinion matters which are perceived and on which the opinion is partly based. This view seems consistent with Steffen v. Ruben (1966) 84 WN (Pt.1)(NSW) 264; and see also Pownall v. Conlan Management Pty. Ltd. (1995) 12 WAR 370. However, the giving or failure to give such evidence may be very relevant to weight; and in some circumstances the failure to give such evidence may involve unfairness, so that the evidence should be excluded as a matter of discretion under s.135 of the Evidence Act. This is more likely to be so at a final hearing where there is a real issue as to the correctness of the opinion, than at an interlocutory hearing where the matter is being considered only on a prima facie basis.

56 On that basis, I am inclined to think that the actual opinions of Dr. Bell and Dr. Lewin about the appellant’s ability to give rational instructions would have been admissible, without disclosure of communications on which they were based, unless a case was made out that it would be unfair to admit them because the opinions could not be explored or tested without going into privileged communications. I think the same applies to the solicitor’s opinion to the effect that the instructions he was receiving from the client would be extremely damaging to the client’s case.

57 That view has some support from the dissenting judgment of Lord Nicholls of Birkenhead in In re L [1997] AC at 34:

That is not the effect of legal professional privilege in the present situation. The privilege is not in danger of thwarting the objective of family proceedings, or the application of the paramountcy principle.

Let me explain why this is so. The context in which this question arises in the present case, as in all the recent cases, is experts' reports. Courts need as much information and assistance as possible. If an expert's report is obtained, the judge wishes to know what the report says. But this does not reveal a problem whose solution requires abrogating or overriding legal professional privilege, in whole or in part. There is no need for this radical departure from established principle. Parties are not able to suppress the evidence of an available expert. The views of the expert, if desired, can always be made available within the existing legal framework. In the time honoured aphorism, there is no property in a witness. The fact that an expert or other potential witness has already been approached by one party, and given a statement to that party, does not excuse him from giving evidence at the hearing at the behest of another party. If necessary his attendance can be compelled by service of a subpoena. He cannot be required to disclose the contents of communications between himself and the first party's legal adviser. But his evidence on the issue before the court, which is all that is material, can be compelled.

58 There is no reference to the problem that the expert opinion being discussed is itself based in part on privileged communications; but plainly it is assumed that this is not an absolute bar to the expert giving evidence of the opinion.

59 While the above is my tentative view, I acknowledge that there is force in the contrary arguments advanced by Ipp AJA in his judgment. However, I am inclined to the opinion that there is a substantial difference between an expert opinion based on actual observations, where the expert is precluded from giving the details of those observations, and an expert opinion based on assumed facts which are not proved in evidence. In any event, I agree with Ipp AJA that this case does not require a final determination of this matter.

60 It may well be that the admissible evidence would not have been sufficient to convince the primary judge to make the orders sought. However, it would have been sufficient, in my opinion, at least to justify an order that the appellant be medically examined under Pt.25 of the Supreme Court rules; and, had the objections been taken, it seems highly probable that the respondent would have sought such an order. Having regard to the consistency of the material that was in fact admitted below, it seems likely that the result would have been a similar opinion that would plainly have been admissible.

61 Because of the different course that the proceedings would probably have taken below, the probability of a similar result in the end, and the further distress likely to be caused by providing for a re-hearing of the whole interlocutory application, I do not think the objections to evidence which were not taken below should be permitted to be raised now on appeal.

62 Turning to the second ground of appeal, in my opinion it is clear that the appellant is on no stronger ground in relation to claims based on the protected report provisions of the Evidence Act (ss.126A and 126B) than in relation to claims based on the client legal privilege provisions; and I do not think it is necessary to consider that matter in any detail. In particular, I do no think that the primary judge should, on his own initiative, have considered whether he was dissatisfied as to the matters set out in s.126B(3)(a) and (b).

63 Coming to the third ground of appeal, and the matter of confidentiality and conflict of interest questions generally, the case of McD v. McD does assert that, in situations like this, applications under the Protected Estates Act should not be brought by solicitors against their own clients, at least if there is any reasonable alternative. Leave was granted in relation to this question only on the question of principle, and not on the question whether possible alternatives had been sufficiently explored in this case. Evidence was submitted on behalf of the appellant and also the respondent concerning the issue whether the respondent had in this case taken adequate steps to find some alternative person to bring the proceedings, but having regard to the basis on which leave was granted, the Court did not permit that evidence to be read.

64 McD did not purport to impose any absolute rule against solicitors bringing such an action, and I do not think this Court should suggest that there is an absolute rule against such actions being brought. The bringing of such actions is extremely undesirable because it involves the solicitor in a conflict between the duty to do what the solicitor considers best for the client and the duty to act in accordance with the client’s instructions; and also because of a possible conflict between the solicitor’s duty to the client and the solicitor’s interest in continuing to act in the proceedings in question and to receive fees for this. Of course, where as in this case the order sought is for the appointment of the Protective Commissioner to be receiver and manager of the client’s estate and to have control of the Court proceedings, the Protective Commissioner may, if this is considered to be in the client’s interest, then dismiss the solicitor and either give effect to the client’s wishes in the matter or engage other solicitors.

65 However, there being no absolute rule precluding solicitors bringing such an action, I do not think a ground is shown for interfering with the result at first instance on this basis.

66 There remains the question whether the respondent has misused confidential information in bringing the proceedings, upon the basis of general law principles about the obligations of persons having confidential information, quite apart from restrictions on disclosing or giving in evidence of matters the subject of legal professional privilege. In relation to these principles, in my opinion there is room for the adoption of the approach taken in cases such as Church v. Price, to the effect that the solicitor’s concern for the interest of the client, so long as it is reasonably based and so long as it results in no greater disclosure of confidential information than absolutely necessary, can justify the bringing of proceedings and such disclosure of confidential information as is absolutely necessary for the purpose of such proceedings.

67 In the result, the only error I have found was the admission of Dr. Dyball’s report. In my opinion, it is unlikely that the admission of that report made a difference in the result: the issue before the Court was whether there was a serious question to be tried and what should be done on the balance of convenience; and the appellant’s failure to tender Dr. Dyball’s report would have supported a Jones v. Dunkel inference. Part 51 r.23 of the Supreme Court rules provides that this Could should not order a new trial on the ground of improper admission of evidence unless it considers some substantial wrong or miscarriage has been occasioned thereby; and the same must apply in relation to an order for a new hearing of an interlocutory application. For those reasons, I do not think the error involved in admitting Dr. Dyball’s report is sufficient to require this Court to re-visit the matter and exercise a discretion on its own part, or to send the matter back for a further exercise of discretion.

68 This decision does not itself absolutely preclude an application being made in the Equity Division to vacate or vary the interlocutory order, on the ground that the order was partly based on evidence wrongly admitted and/or that circumstances have changed; although I would not wish to encourage such an application, much less to suggest that it has any chance of success. However, this case concerns important issues for the appellant, and the service of the reports of Dr. Bell and Dr. Lewin could, notwithstanding Sevic v. Roarty, lead to irrecoverable loss of privilege. The District Court case will now not be heard until June 2002. I would be prepared to order that the reports not be served prior to 15th March 2002, so as to give the appellant a chance either to apply in the Equity Division to vacate or vary the order or else to seek special leave to appeal to the High Court.

69 So the orders I propose are:

1. Appeal dismissed with costs.
2. Order that the reports of Dr. Bell and Dr. Lewin not be served prior to 15th March 2002.

70 IPP AJA: I agree with the reasons to be delivered by Hodgson JA save that I have come to a different conclusion as to the admissibility of the opinions of Dr Bell and Dr Lewin.

71 Section 119 of the Evidence Act 1995 provides:

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b) the contents of a confidential document (whether delivered or not) that was prepared;
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

72 The opinions of Dr Bell and Dr Lewin were formed, at least to a substantial extent, on the basis of confidential communications falling within the categories described in s 119. Those communications were made by the appellant for the dominant purpose of being provided with professional legal services relating to “an Australian … proceeding” in which the appellant was a party. Accordingly, those communications, upon objection, could not be adduced in evidence.

73 However, the opinions of Dr Bell and Dr Lewin (divorced from the communications on which they were based) were not themselves confidential communications covered by s 119.

74 The Evidence Act does not contain any provisions concerning the admissibility of expert opinions, which are not confidential communications covered by s 119, but which are based on, or substantially based on, confidential communications that do fall within that section.

75 Section 9 (1) of the Act provides:

This Act does not affect the operation of a principle or rule of common law … in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.

76 Accordingly, in my opinion, the answer as to whether the opinions formed by Dr Bell and Dr Lewin are admissible in evidence must be sought from the common law.

77 At common law, expert opinion based on inadmissible hearsay evidence is itself inadmissible: Ramsay v Watson (1961) 108 CLR 642, Steffen v Ruban (1966) 84 WN (Pt 1) NSW 264, Pownall v Conlan ManagementPty Limited (1995) 12 WAR 370.

78 In Ramsay v Watson (at 649) the High Court said:

Hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician. And, if the man who the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician’s opinion may have little or no value, for part of the basis of it has gone.

79 In my reasons in Pownall v Conlan ManagementPty Limited (with which Malcolm CJ agreed) I held that expert opinion based entirely on inadmissible evidence was itself inadmissible and there was no discretion to admit it. I explained this conclusion as follows (at 377):

I form this view as to admit such an opinion would be to admit, indirectly, the inadmissible evidence itself. If an opinion, based solely on evidence that the court by law is required to exclude, is itself admitted, the inadmissible evidence would have some influence over the court’s decision. Such a result would defeat the purpose of the law that excludes the inadmissible evidence. If the primary facts on which the evidence is based are not admissible, the opinion is valueless and irrelevant and, in my opinion, should be excluded. It is for this reason that the Court of Appeal in R v Turner [ (1975) QB 834] observed (at 840) that an expert in examination-in-chief should be asked to state the facts on which his opinion is based, and that it was wrong to leave it to the other side to elicit the facts by cross-examination. It is only when the primary facts upon which the opinion has been based are established that the opinion should be admitted into evidence.

80 I went on to hold (at 377-78) that where the expert opinion is based only partly on inadmissible testimony and that inadmissible testimony can readily be ascertained and discarded, the opinion should be admitted subject to weight. Where the expert opinion is based on a combination of admissible and inadmissible material, and it is impossible to determine what conclusions are based on the expert’s own observations and what conclusions are based on what he has been told, or to what degree the expert has been influenced by the hearsay material, the evidence should be excluded: see Steffen v Ruban.

81 In the same case, Anderson J (at 388) said that the preponderance of authority was to the effect that opinion evidence based on hearsay should be excluded.

82 I have mentioned that the opinions of Dr Bell and Dr Lewin, at least to a substantial extent, were based on privileged communications. It is not possible to determine with any reliability whether either of them relied on any admissible material, and, if so, to what extent such admissible material influenced their opinions.

83 On the authorities to which I have referred, it is plain that, had the communications on which Dr Bell and Dr Lewin relied been inadmissible on the grounds of hearsay (and not by reason of privilege in terms of s 119), their opinions, themselves, would be inadmissible.

84 I see no difference between the validity of expert opinion based on inadmissible hearsay evidence and that of expert opinion based on evidence that is inadmissible by reason of privilege (whether under s 119 of the Evidence Act or at common law). The rationale for excluding the opinion evidence remains the same.

85 In the circumstances, in my view, if objection had been taken to them, the primary judge should have excluded the reports of Drs Bell and Lewin entirely.

86 Nevertheless, for the reasons set out by Hodgson JA in paragraph 57 of his reasons, the views I have expressed above do not lead me to conclude that orders should be made different to those proposed by his Honour. Accordingly, I agree with the orders proposed by him.

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