Traderight (NSW) Pty Ltd v Bank of Queensland Ltd

[2013] NSWSC 211

Supreme Court

New South Wales

Medium Neutral Citation:	Traderight (NSW) Pty Ltd (ACN 108 880 968) & Ors v Bank of Queensland Limited (ACN 009 656 740) (No 14) and 13 related matters [2013] NSWSC 211
Hearing dates:	15 March 2013
Decision date:	25 March 2013
Jurisdiction:	Equity Division
Before:	Ball J
Decision:	The OMB Parties are entitled to maintain their claim for privilege in relation to the documents contained in packets A to L produced by Professor Burton.
Catchwords:	EVIDENCE - client legal privilege - waiver of privilege - communication between experts and parties legal advisors - s 122 Evidence Act 1995 (NSW).
Legislation Cited:	Evidence Act 1995 (Cth) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Australian Securities & Investments Commission v Southcorp Ltd (2003) 46 ACSR 438 Gate Gourmet Australia Pty Ltd v Gate Gourmet Holding AG [2004] NSWSC 768 Integral Energy Australia v EDS (Australia) Pty Ltd (2006) NSWSC 971 Mann v Carnell [1999] HCA 66; (1999-2000) 201 CLR 1 ML Ubase Holdings Co Ltd v Trigem Computer Inc [2007] NSWSC 859 New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 Ryder v Frohlich [2005] NSWSC 1342 Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 948 Traderight (NSW) Pty Ltd (ACN 108 880 968) & Ors v Bank of Queensland Limited (ACN 009 656 740) (No 13) [2013] NSWSC 90 Watkins v State of Queensland [2007] QCA 430; [2008] 1 Qd R 564
Category:	Procedural and other rulings
Parties:	Traderight (NSW) Pty Ltd (ACN 108 880 968) (First Plaintiff in 06/258216 and First Defendant in 06/258225) Bronwyn Smith (Second Plaintiff in 06/258216 and Second Defendant in 08/258225) Geoffrey Versace (Third Plaintiff in 06/258216 and Third Defendant in 08/258225) Smith Partners Development Pty Ltd (Fourth Plaintiff in 06/258216; Fourth Defendant in 08/258225) Verich Holdings Pty Ltd (Fifth Plaintiff in 06/258216; Fifth Defendant in 08/258225) Bank of Queensland Limited (ACN 009 656 740) (Defendant in 06/258216; Plaintiff in 08/258225; First Defendant/Cross Claimant in 08/282126; First Defendant in 09/287816; First Defendant/Cross Claimant in 08/282304; First Defendant in 09/287824; Defendant/Cross Claimant in 10/367117; Defendant/Cross-Claimant in 08/281332; Plaintiff/First Cross Claimant in 08/279848; First Defendant in 09/287814; Defendant/Cross Claimant in 10/367086; Defendant/Cross Claimant in 10/305568; Defendant/Cross Claimant in 10/306022; Defendant/Cross Claimant in 10/304306) Rossmick No 1 Pty Limited (First Plaintiff/First Cross Defendant in 08/282126; First Plaintiff in 09/287816) Rossmick No 2 Pty Limited (Second Plaintiff/Second Cross Defendant in 08/282126; Second Plaintiff in 09/287816) Michael Bradley (Third Plaintiff/Third Cross Defendant in 08/282126; Third Plaintiff in 09/287816) Ross Chapman (Fourth Plaintiff/Fourth Cross Defendant in 08/282126; Fourth Plaintiff in 09/287816) Luke Nolan (Fifth Plaintiff/Fifth Cross Defendant in 08/282126; Fifth Plaintiff in 09/287816) Tomala No 1 Pty Ltd (ACN 110 321 698) (Sixth Plaintiff/Sixth Cross Defendant in 08/282126; Sixth Plaintiff in 09/287816) Casmick Pty Ltd (ACN 110 292 012) (Seventh Plaintiff/Seventh Cross Defendant in 08/282126; Seventh Plaintiff in 09/287816) Nolan No 1 Pty Ltd (ACN 110 019 426) (Eighth Plaintiff/Eighth Cross Defendant in 08/282126; Eighth Plaintiff in 09/287816) Nadine Nolan (Ninth Plaintiff/Ninth Cross Defendant in 08/282126; Ninth Plaintiff in 09/287816) David Liddy (Second Defendant in 08/282126; Second Defendant in 09/287816; Second Defendant in 09/287824; Second Cross Defendant in 08/279848; Second Defendant in 09/287814) Jude Financial Services Pty Ltd (ACN 115 763 481) (First Plaintiff/First Cross Defendant in 08/282304; First Plaintiff in 09/287824) Russell Jude Edward Gardner (Second Plaintiff/Second Cross Defendant in 08/282304; Second Plaintiff in 09/287824) Penelope Ann Gardner (Third Plaintiff/Third Cross Defendant in 08/282304; Third Plaintiff in 09/287824) Donna Quinn (Third Defendant in 08/282126; Third Defendant in 09/287816; Fourth Defendant in 09/287824) Garry Allsop (Fourth Defendant in 09/287816; Fourth Defendant in 08/282126; Fourth Defendant in 09/287816; Third Defendant in 09/287824; Third Cross Defendant in 08/279848) Shamarbre Pty Ltd (First Plaintiff/First Cross Defendant in 10/367117) Ronald George Johnson (Second Plaintiff/Second Cross Defendant in 10/367117) Geraghty & Palmer (NSW) Pty Ltd (First Plaintiff/First Cross Defendant in 08/281332) Shauna Margaret Geraghty (Second Plaintiff/Second Cross Defendant in 08/281332) Barry Palmer (Third Plaintiff/Third Cross Defendant in 08/281332) SME Business Assist Pty Limited (ACN 108 524 232) (First Defendant/First Cross Claimant in 08/279848; First Plaintiff in 09/287814) Scott Rolfe McCoy (Second Defendant/Second Cross Claimant in 08/279848; Second Plaintiff in 09/287814) Leokate Pty Ltd (ACN 111 162 068) (First Plaintiff/First Cross Defendant in 10/367086) Stephen Sargent (Second Plaintiff/Second Cross Defendant in 10/367086) Lauren Sargent (Third Plaintiff/Third Cross Defendant in 10/367086) Best Deal Pty Limited (ACN 119 366 433) (First Plaintiff/First Cross Defendant in 10/305568) Jeffrey Bruce Jones (Second Plaintiff/Second Cross Defendant in 10/305568) LJH Group Pty Limited (ACN 123 507 497) (First Plaintiff/First Cross Defendant in 10/306022) Leslie Xu (Second Plaintiff/Second Cross Defendant in 10/306022) Jin Yu Yang (Third Plaintiff/Third Cross Defendant in 10/306022) Southpole Financial Services Pty Ltd (First Plaintiff/First Cross Defendant in 10/304306) Harunur Rashid Chowdhury (Second Plaintiff/Second Cross Defendant in 10/304306) Iftekhar Tarek Hassan (Third Plaintiff/Third Cross Defendant in 10/304306) Ikthedar Hassan Murad (Fourth Plaintiff/Fourth Cross Defendant in 10/304306)
Representation:	NA Cotman SC with RD Glasson (OMB Parties) S Couper QC with JV Gooley, GAF Connolly and RM Higgins (Bank Parties) McCabes (OMB Parties) HWL Ebsworths (Bank Parties)
File Number(s):	06/258216
Publication restriction:	N/A

File numbers continued:  06/258225; 08/282126; 09/287816; 08/282304; 09/287824; 10/367117; 08/281332; 08/279848; 09/287814; 10/367086; 10/305568; 10/306022 and 10/304306

Judgment

1. Before me is an application by the Bank of Queensland (the Bank) for access to a number of documents produced by Professor Suzan Burton in response to a subpoena served on her by the Bank. Professor Burton has prepared an expert report on instructions from the solicitors for the OMB Parties. The report addresses a number of questions concerning the marketing investigations undertaken by the Bank as part of its consideration of whether to expand interstate and the adequacy of those investigations. Part of the report has been admitted into evidence, although significant parts of it were also rejected. Relevant background can be found in the judgment I delivered on 19 February 2013 (Traderight (NSW) Pty Ltd (ACN 108 880 968) & Ors v Bank of Queensland Limited (ACN 009 656 740) (No 13) [2013] NSWSC 90) dealing with the admissibility of Professor Burton's report. It is not necessary to repeat that background here.

1. In the report, Professor Burton records that she has read schedule 7 - Expert Witness Code of Conduct of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Expert witnesses are required by UCPR r 31.23 to comply with that code, acknowledge that they have read the code and agree to be bound by it. The code relevantly provides:

(1) ...

(2) An expert witness's paramount duty is to the court and not to any party to the proceedings (including the person retaining the expert witness).

(3) An expert witness is not an advocate for a party.

1. The subpoena calls for production of a broad range of documents relating to the preparation of Professor Burton's report. In response to that subpoena, Professor Burton has produced two boxes of documents. The OMB Parties claim client legal privilege in respect of the following categories of documents that have been produced by Professor Burton:

• Draft reports of Professor Burton containing comments, request or advice made by the OMB Parties' legal advisors and communicated to Professor Burton in connection with the proceedings;

• Draft reports of Professor Burton created for the dominant purpose of or with the expectation that those draft reports would be provided to the OMB Parties' legal advisors for the purpose of those advisors considering or providing comment or advice on those draft reports and communicating to those advisors in connection with these proceedings;

• Documents recording communications between Professor Burton and the OMB Parties' legal advisors concerning the draft reports or preparation of those draft reports for the dominant purpose of those legal advisors considering or providing comment or advice on those draft reports in connection with these proceedings.

It is to those documents that the Bank seeks access.

1. The parties accept that the question whether the documents are properly the subject of a claim for client legal privilege is to be determined by applying the provisions of the Evidence Act 1995 (NSW) (the Act): see s 131A.

1. Section 119 of the Act 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 clients is or may be, or was or might have been, a party.

1. The Bank accepts that on their face the documents to which it seeks access fall within s 119 of the Act and so are properly subject to a claim for privilege unless one of the exceptions set out in the Act applies. The Bank relies on the exception created by s 122(2). Section 122 relevantly provides:

(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 the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

(3) Without limiting subsection (2), a client or party is taken to have so acted if:

(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or

(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.

...

The exceptions created by subsection (5) are not relevant.

1. According to the Bank, it would be inconsistent for the OMB Parties to rely on Professor Burton's report and at the same time to maintain a claim for privilege.

1. Before addressing the parties' arguments on that question, and in particular the cases on which they rely, it is necessary to say something about the history of s 122 of the Act.

1. In its original form, s 122(2) provided:

Subject to section (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.

1. Subsequently, s 122(2) was amended. The amendment came into force on 1 January 2009. The amendment was introduced following recommendations made in a joint report of the Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission: see Uniform Evidence Law, ALRC Report 102, NSWLRC Report 112 and VLRC Final Report (February 2006) (the Joint Report). The recommendation made in the Joint Report, in turn, followed the decision of the High Court in Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1. That decision concerned the question whether privilege in certain legal advice that had been obtained by the Chief Minister of the Australian Capital Territory in connection with legal proceedings brought against the Government was waived when the Chief Minister provided a copy of the advice to a member of the Legislative Assembly following a complaint to the member by the person who had brought the proceedings concerning the way the proceedings had been conducted. Subsequently, the litigant sought a copy of the advice in an application for preliminary discovery. The High Court held that the Evidence Act 1995 (Cth), as it existed at the time, was confined to the adducing of evidence in the course of a hearing and that consequently the issue whether privilege in the advice had been lost was to be determined by application of the common law. The question at common law was whether the privilege had been waived. In considering that question, Gleeson CJ and Gaudron, Gummow and Callinan JJ said:

What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large (at [29]).

1. In explaining the recommended amendment to s 122, the Joint Report stated (omitting footnotes):

14.146 The Commissions continue to favour the inclusion of additional criteria for waiver of 'an act inconsistent with the maintenance of the privilege'. This view is supported by a majority of submissions. In the Commissions' view, the test of inconsistency under Mann v Carnell sits well with the underlying rationale the ALRC expressed for s 122 - that the privilege should not extend beyond what is necessary, and that voluntary publication by the client should bring the privilege to an end. The addition of that criterion for waiver gives the court greater flexibility to consider all the circumstances of the case.

14.147 The Commissions therefore recommend that the uniform Evidence Acts be amended to align s 122 (which sets out when client legal privilege under the uniform Evidence Acts is lost because of consent, or voluntary disclosure) more closely with the common law as set out in Mann v Carnell. A draft provision is set out in Appendix 1.

Recommendation 14-5 Section 122(2) of the uniform Evidence Acts should be amended to provide that evidence may be adduced where a client or party has acted in a manner inconsistent with the maintenance of the privilege. The existing provisions should remain in a form appropriate to give guidance as to what acts are or are not acts inconsistent with the maintenance of the privilege.

1. It is clear from these paragraphs that s 122(2) in its current form is intended largely to adopt the test for waiver at common law as explained by the High Court in Mann v Carnell and that s 122(3) is intended to give some examples of the application of that test.

1. I was taken to a number of decisions in which courts have considered the question whether and to what extent privilege in communications between a party's legal advisors and an expert retained by the party, and draft reports prepared by the expert, were waived by service of the expert's report. It is not necessary to refer to them all. However, it is helpful to refer to a number of them.

1. The first is the decision of Lindgren J in Australian Securities & Investments Commission v Southcorp Ltd (2003) 46 ACSR 438. In that case his Honour set out the relevant principles in these terms (at [21]):

I will apply the following principles which I did not understand to be in dispute:

(1) Ordinarily the confidential briefing or instructing by a prospective litigant's lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege: cf Wheeler v Le Marchant (1881) 17 Ch D 675; Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246; Interchase Corp Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1) [1999] 1 Qd R 141 (Interchase) at 151 per Pincus JA, at 160 per Thomas J.

(2) Copies of documents, whether the originals are privileged or not, where the copies were made for the purpose of forming part of confidential communications between the client's lawyers and the expert witness, ordinarily attract the privilege: (1997) 188 CLR 501; 141 ALR 545; 91 A Crim R 451 (Propend); Interchase, per Pincus JA; Spassked Pty Ltd v Cmr of Taxation (No 4) (2002) 50 ATR 70 at [17].

(3) Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness's own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications: cf Interchase at 161-2 per Thomas J.

(4) Ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents; cf Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 481; 69 ALR 31 at 34 per Gibbs CJ, CLR 487-8; ALR 38-9 per Mason and Brennan JJ, CLR 492-3; ALR 42-3 per Deane J, CLR 497-8; ALR 46-7 per Dawson J; Goldberg v Ng (1995) 185 CLR 83 at 98; 132 ALR 57 at 66 per Deane, Dawson and Gaudron JJ, CLR 109; ALR 75 per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd [1995] FCA 870; BC9506842; Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89; BC200300344 (ACCC v Lux) at [46].

(5) Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents; Interchase at 148-50 per Pincus JA, at 161 per Thomas J.

(6) It may be difficult to establish at an early stage whether documents which were before an expert witness influenced the content of his or her report, in the absence of any reference to them in the report: cf Dingwall v Commonwealth of Australia (1992) 39 FCR 521; Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No 2) (1998) 83 FCR 397 at 400; 156 ALR 364 at 366; ACCC v Luxat [46].

1. Lindgren J was concerned with the position at common law. Moreover, his Honour did not refer to the decision in Mann v Carnell; and for that reason his Honour stated the principle in (4) in terms of fairness rather than inconsistency informed by considerations of fairness. Nonetheless, the principles stated by Lindgren J have been referred to with approval on a number of occasions: see, for example, Integral Energy Australia v EDS (Australia) Pty Ltd (2006) NSWSC 971 at [3] (Einstein J); Ryder v Frohlich [2005] NSWSC 1342 at [10] (Barrett J); Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 948 at [7]-[8] (Ryan J) and Gate Gourmet Australia Pty Ltd v Gate Gourmet Holding AG [2004] NSWSC 768 at [28]-[29] (Einstein J); and the principles stated by Lindgren J provide the context for more recent judgments concerning the Act.

1. One of those is the decision of White J in New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258. In that case, the plaintiffs served a report from an expert accountant, Mr Smith, dealing with the question whether the plaintiff was solvent at a date relevant to the issues in the proceedings. The defendant sought access to draft reports that had been prepared by Mr Smith and submitted to the plaintiffs' lawyers. White J observed that the common law did not apply and that any question of "waiver" was to be determined in accordance with s 122 of the Act as it then was. In his Honour's view, s 122(2) had no application, since disclosure of the final report was not a knowing and voluntary disclosure of the substance of the drafts: at [43]. Nonetheless, his Honour thought that s 122(1) was applicable:

It is now firmly established that consent under s 122(1) includes a consent which will be imputed to a party on the same principle where, at common law, a party will be taken to have waived privilege, even though he or she did not subjectively intend to do so (Chen & Ors v City Convenience Leasing Pty Ltd & Anor [2005] NSWCA 297 at [29]-[33])

White J then went on to state the principle from Mann v Carnell quoted above.

1. White J also referred to the principles stated by Lindgren J in Australian Securities & Investments Commission v Southcorp Ltd and continued:

[48] It may be said that the question of whether such privileged documents influenced the content of the expert's report is a matter which the opposite party should be entitled to test. However, questions of privilege inevitably involve the striking of a balance.

[49] ...

[50] As set out earlier in these reasons, Mr Smith, as he is required to do under the Expert Witness Code of Conduct, specified the materials used in support of his opinions. These did not include draft reports, or earlier letters of instruction, or communications with the plaintiffs' solicitors.

His Honour then summarised the position in these terms (at [53]):

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 advisors 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.

Following inspection of the relevant documents, White J concluded that Mr Smith had not used the documents in issue in preparing his report and consequently concluded that privilege in them had not been waived.

1. White J's decision was cited with apparent approval by Jerrard JA in Watkins v State of Queensland [2007] QCA 430; [2008] 1 Qd R 564 at [14]-[15]; and in that case Keane JA stated the test of waiver in these terms (at [55]):

It is in the nature of things that a party who enjoys a right to keep information relevant to a forensic contest confidential will also enjoy an advantage over that party's opponent: the mere existence of that advantage cannot be a reason for the abrogation of the right. It is the abuse of the right by conduct apt to confuse or deceive the opponent which is the basis for an imputed waiver of privilege.

1. A different approach was taken by Brereton J in ML Ubase Holdings Co Ltd v Trigem Computer Inc [2007] NSWSC 859. It appears that Brereton J was not referred to White J's decision. That case concerned an expert report on Korean law. Counsel for the plaintiff sought access to communications between the defendant's lawyer and the expert relating to the preparation of the report. Again, the question was whether privilege had been lost in those documents by service of the expert report. Like White J, Brereton J pointed out that the issue was now to be resolved by application of the Evidence Act. In relation to s 122 of the Act, his Honour said:

[34] ... Section 122 applies if and only if the evidence for which privilege is claimed has itself or in substance been disclosed. Illustrations of where it may operate are afforded by cases in which one party writes to another asserting that it has legal advice to a particular effect; that discloses the substance of the legal advice, and waives the privilege in it.

[35] There is no suggestion that the substance of the documents, the subject of the present claim for privilege, has been disclosed, and although at one stage Mr Scruby referred to Evidence Act, s 122(4) in connection with the waiver argument, there is no room for the operation of s 122 in respect of the documents the subject of the claim here. However, service of an expert's report does not, without more, disclose the substance of the contents of the letter of instructions. ...

1. His Honour then considered whether privilege had been lost under s 126 of the Act which provides:

If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document.

However, his Honour concluded that it was not necessary to obtain access to the documents to which privilege was claimed in order to enable a proper understanding of the report and that consequently the privilege had not been lost.

1. It is clear, however, that the approach taken by White J to s 122(1) is now applicable to s 122(2). White J proceeded on the basis that s 122(1) incorporated principles of common law waiver. As I have explained, those principles are now encapsulated in s 122(2). The narrow approach taken by Brereton J to s 122 no longer applies to the section as amended. Although Mr Cotman SC, who appeared for the OMB Parties, took me to a number of other cases, there was no real dispute between the parties that the principles as stated by White J were the principles to be applied in this case.

1. Applying those principles, Mr Couper QC, who appeared for the Bank, submitted that it would be inconsistent for the OMB Parties to maintain their claim for privilege in communications with and draft reports of Professor Burton because it is apparent from the material before the court that Professor Burton relied on those communications and on comments on her draft report in reaching her conclusions. In support of that submission, Mr Couper relied on the description of many of the documents in respect of which a claim for privilege is made which make it clear that Professor Burton was communicating with the solicitors and counsel for the OMB Parties concerning the contents of her report. He also relied on the following paragraph from the affidavit prepared by a solicitor for the OMB Parties in support of the claim for privilege:

Of the draft reports of Professor Burton that I reviewed, each contained, variously, highlighting, edits in revision mode made by Professor Burton or the OMB Parties' legal advisors or comments and questions addressed by Professor Burton to the OMB Parties' legal advisors or to Professor Burton by the OMB Parties' legal advisors.

Mr Couper submitted that it was open to Professor Burton to have sworn an affidavit saying that, despite the comments she received, the conclusions reached in the report are her own. She has not done that. In the absence of such an affidavit the court can more readily conclude that the contents of the report have been influenced by the OMB Parties' legal advisors.

1. Applying the approach adopted by White J, I am not satisfied that the OMB Parties have lost privilege in the communications their legal advisors had with Professor Burton and in the draft reports prepared by her. There is nothing in the material to which Mr Couper points to suggest that the conclusions stated by Professor Burton are not her own or are based on material other than the material disclosed in her report. It is common for a party's legal advisors to communicate with an expert retained by the party for the purpose of giving instructions and commenting on the form of the expert's report. In some cases, those advisors may test tentative conclusions that the expert has reached and in doing so may cause the expert to reconsider his or her opinion. In some cases, the legal advisors may suggest wording to be included in the report which expresses in admissible form an opinion stated by the expert in an inadmissible form. The court depends heavily on the parties' legal advisors to assist experts to address properly the questions asked of them and to present their opinions in an admissible form and in a form which will be readily understood by the court. Equally, the court depends heavily on the parties' legal advisors to ensure that any opinion expressed by an expert is an opinion the expert holds for the reasons that the expert gives and that the expert otherwise complies with the Expert Witness Code of Conduct. That requirement is reinforced by the acknowledgment that the expert is required to give concerning the code. The fact that legal advisors have communicated with an expert and provided comments on drafts of a report in a way which is consistent with discharging the first obligation is not a reason of itself for supposing that they have failed to discharge the second; and, as I have said, there is nothing else in the material Mr Couper points to suggest that the OMB Parties' legal advisors have failed to discharge that obligation in the case of Professor Burton's report.

1. For those reasons, in my opinion, the OMB Parties are entitled to maintain their claim for privilege in relation to the documents contained in packets A to L produced by Professor Burton.

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Decision last updated: 15 April 2013