Ray Fitzpatrick Pty Ltd (In Members Voluntary Liquidation) v Minister for Planning
[2007] NSWLEC 833
•20 November 2007
Land and Environment Court
of New South Wales
CITATION: Ray Fitzpatrick Pty Ltd (In Members Voluntary Liquidation) v Minister for Planning [2007] NSWLEC 833 PARTIES: APPLICANT
RESPONDENT
Ray Fitzpatrick Pty Ltd (In Members Voluntary Liquidation)
Minister for PlanningFILE NUMBER(S): 30627 of 2006 CORAM: Lloyd J KEY ISSUES: Subpoena :- Access to documents - privilege claimed over draft reports - common law rules LEGISLATION CITED: Evidence Act 1995
Queensland Supreme Court Rules, O 35 r 5(2)CASES CITED: Attorney-General (NT) v Maurice (1986) 161 CLR 475;
Esso Australia Resources Ltd v Commissioner for Taxation of the Commonwealth of Australia (1999) 201 CLR 49;
Interchase Corp Ltd (in liq.) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141;
Linter Group Ltd v Price Waterhouse (a firm) [1999] VSC 245;
ML Ubase Holdings Co Ltd v Trigem Computer Inc [2007] NSWSC 859;
Natuna Pty Ltd v Cook [2006] NSWSC 1367DATES OF HEARING: 20 November 2007 EX TEMPORE JUDGMENT DATE: 20 November 2007 LEGAL REPRESENTATIVES: APPLICANT
Mr P Holland (sol)
Minter EllisonRESPONDENT
Mr M Seymour (bar)
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Lloyd J
20 November 2007
LEC No. 30627 of 2006
EX TEMPORE JUDGMENTRAY FITZPATRICK PTY LTD (IN MEMBERS VOLUNTARY LIQUIDATION) v MINISTER FOR PLANNING [2007] NSWLEC 833
1 HIS HONOUR: This is a notice of motion by the applicant that the applicant be granted access to all documents described in a subpoena addressed to Mr Garth McKenzie of McKenzie Land Planning Services Pty Ltd. The subpoena requires the production of the following documents:
- All documents including file notes, reports, memoranda, correspondence, minutes of meeting, emails (including drafts) and records, of any communication between Mr Garth McKenzie and the solicitors and/or counsel for the Minister for Planning since 1 October 2007 regarding the preparation of the joint report of the town planners in these proceedings.
2 The respondent does not object to the applicant being granted access to certain documents which have been produced in answer to the subpoena but claims privilege in respect of a bundle of documents which contain correspondence between the expert witness (Mr McKenzie) and the solicitors for the respondent which include draft reports of another expert attached to that correspondence.
3 I have looked at the documents over which privilege is claimed. The documents are in fact correspondence passing between the expert and the solicitors for the respondent and include the draft reports that I have described.
4 These proceedings are in Class 3 of the court’s jurisdiction in which the rules of evidence do not apply. Although the Evidence Act 1995 does not apply, the position is governed by the common law rules which determine the existence of the privilege which is claimed in respect of these documents.
5 In Esso Australia Resources Ltd v Commissioner for Taxation of the Commonwealth of Australia (1999) 201 CLR 49, the High Court held that the test at common law should be applied to discovery and inspection of documents. The documents over which privilege is claimed in the present case were brought into existence for the sole purpose of the litigation.
6 In Interchase Corp Ltd (in liq.) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141, the Queensland Court of Appeal held that draft reports of a valuer were not privileged. The Court of Appeal ordered the production of a number of documents which formed the basis of the expert’s report together with all draft reports. However, the position in Queensland, at that time, was governed by the operation of O 35 r 5(2) of the Queensland Supreme Court Rules which says that a document consisting of a statement or report of an expert is not privileged from disclosure.
7 The position in Queensland may be contrasted with the approach in Victoria. In Linter Group Ltd v Price Waterhouse (a firm) [1999] VSC 245, Harper J was required to decide prior to commencement of the trial whether a draft expert’s report was required to be produced. Harper J said at [16]:
- [A]n expert is surely permitted, indeed to be encouraged, to change his or her mind, if a change of mind is warranted. Just as a judge ought never to allow publication of a draft of a judgment, in part because it is necessary to preserve the freedom to change his or her mind on further reflection about the case, so 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. For these reasons the application for an order that the plaintiff produce the opinion of Mr Spencer of March 1997 is refused.
8 In Attorney-General (NT) v Maurice (1986) 161 CLR 475, the issue before the High Court was whether there had been on the facts of that case a waiver of the legal professional privilege. Dawson J went on, however, to consider whether a draft document may be privileged and he held that it was (at 496):
- Before it emerges in its final form, successive drafts of a claim book may be privileged but this is not because of any privilege attaching to the final product. Draft pleadings in an action may be privileged, but I have never heard it suggested that a statement of claim or a defence or a reply is privileged so that the privilege is waived when it is filed or delivered to the other side. The reason why the draft may be privileged before the document is completed was early explained in Walsham v Stainton (1863) 2 H & M 1 at 4 ; 71 ER 357 at 358, upon the basis that, although after a pleading has been filed it becomes publici juris , the drafts “might disclose the precise character of confidential communications with the solicitor, by showing the alterations made from time to time”. In the same way a letter to the other side in litigation which is drafted in a solicitor's office may be privileged before it is sent because it may reveal confidential communications between the solicitor and his client. Once it is sent, however, it ceases to be confidential and there is no privilege in it, not because privilege in the document is waived, but because no privilege attaches to it.
9 In Maurice, the High Court held that waiver of privilege over a claim book did not operate to waive privilege of source materials which had been used to prepare it, but which were not expressly referred to in the claim book.
10 The comparison by Harper J of a draft expert’s report with a draft judgment is, in my opinion, valid. In my experience it is not unusual, for example, for a judge to walk off the bench at the end of the case and prepare a draft judgment leading to a particular conclusion. However, as one’s reading and thinking about a case develops over the ensuing weeks, it is not unusual for successive drafts to be completely re-written leading to the opposite conclusion. I agree with Harper J that this is to be encouraged also with experts. They may be discouraged from reformulating their opinions and conclusions or changing their minds after further reading or examination if their drafts were not subject to privilege.
11 In ML Ubase Holdings Co Ltd v Trigem Computer Inc [2007] NSWSC 859 Brereton J held that communications between the legal adviser and an expert for the purpose of obtaining that expert’s opinion on matters relating to certain of the matters in issue in the proceedings were confidential, not only under the Evidence Act 1995 but also under the common law, and such protections were protected by legal professional privilege.
12 In Natuna Pty Ltd v Cook [2006] NSWSC 1367, Biscoe AJ held that draft expert witness statements are privileged under s 119 of the Evidence Act 1995. Although his Honour was applying the Evidence Act 1995, the same principle would appear to be equally applicable to the common law.
13 In the present case the documents in respect of which privilege is claimed, are communications passing between the expert (Mr McKenzie) and the solicitor and include as attachments the draft reports of another expert. In my opinion, in applying the principles to which I have referred, the documents are privileged.
14 The formal order is that the applicant’s notice of motion filed on 13 November 2007 is dismissed. The costs of the motion shall be costs in the cause.
AssociateI hereby certify that the preceding 14 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.
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