Shea v TruEnergy Services Pty Ltd (No 5)

In Shea v TruEnergy Services Pty Ltd (No 5), the applicant sought production of draft expert reports and correspondence between the expert and the expert's solicitors during the trial. The respondent resisted the call for production, arguing that the application was made too late and that the documents were protected by client legal privilege. The case involved two expert witness reports prepared by Mr Farrow, dated 3 April 2013 and 14 August 2013, for the respondent in proceedings between Ms Shea and EnergyAustralia Services Pty Ltd. The applicant argued that legal professional privilege did not apply as it was waived upon the expert entering the witness box. Alternatively, they contended that client legal privilege was waived due to relevant inconsistency.

The court considered the principles of client legal privilege under the Evidence Act 1995 (Cth) and relevant case law. It was established that the case was governed by the Evidence Act rather than common law principles. The court noted that client legal privilege may apply to draft expert reports and communications between an expert and the client’s lawyers if they were prepared for the dominant purpose of providing professional legal services. However, such privilege could be waived if the client acted inconsistently with objecting to the adducing of evidence. The court found that the expert’s testimony did not indicate that the final conclusions were based on any material not disclosed in the reports, thus preserving the privilege. Additionally, there was no evidence to suggest that the privilege was waived.

The court concluded that it was inappropriate to order the production of the draft expert reports and related correspondence. The privilege in the communications between the expert and the legal advisers was not lost, and there was no evidence of a waiver. Therefore, the application for production was denied.