Expert evidence 104 - loss of legal professional privilege

In my previous post on the topic of expert evidence, 'Expert evidence 103 - Formal report requirements', I noted that when an expert report is relied on and served on the other side, then this usually results in the loss of legal professional privilege (LPP) in the expert report and the instructions to the expert.

Sometimes experts say things in their reports (or drafts of reports) which aren't helpful to your case. In that situation, you may not want to disclose this information. So can you avoid having to disclose certain information from an expert? In this article I discuss LPP in expert reports and when it is lost.

The common law doctrine of LPP is codified under the Evidence Act 2008 (Vic) (the Evidence Act). There are two forms of LPP: Legal advice LPP and litigation LPP. Expert reports could be covered under both forms of LPP.

In the context of expert reports, legal advice LPP entitles a client to object to the adducing of evidence which would result in the disclosure of the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person for the dominant purpose of the lawyer, or one of more of the lawyers, providing legal advice to the client (s118(c) Evidence Act). For example, where an expert is retained by a lawyer before proceedings are commenced to prepare a report for an owner of a building about who is likely to have caused the collapse of the building, then this is likely to be covered by s118.

The more common circumstance in which LPP attaches to an expert report is litigation LPP. In the context of expert reports, litigation LPP entitles a client to object to the adducing of evidence which would result in the disclosure of:

• a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
• 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 (s119 Evidence Act).

As an example, litigation LPP could arguably cover the following (assuming the following satisfies the dominant purpose test):

• letters of instruction from a lawyer or client to an expert;
• drafts of reports of an expert whether or not sent by the expert; 
• testimonial evidence of discussions between the lawyer and/or the client and the expert; and
• filenotes by the expert concerning meetings or discussions between the client and/or lawyer.

So when is LPP lost?

Under s122(2) Evidence Act, LPP is lost (and the evidence can be adduced) if the client or party concerned has acted in a way that is inconsistent with the client or party making an objection on the basis that the document is protected by LPP. s122(3) gives instances of how this could arise, including:

• The client or party knowingly and voluntarily disclosed the substance of the evidence to another person.
• The substance of the evidence has been disclosed with the express or implied consent of the client or party.

If a report is served on another party, then the report and its contents would no longer be protected by the provisions relating to LPP, as this conduct is clearly inconsistent with the client's claim of LPP in respect of the document.

So what about the letters of instruction, draft reports, filenotes and other documents which went between the lawyer or client and the expert or which were unilaterally prepared by the expert?

s126 Evidence Act provides that if LPP in a communication or contents of a document is lost under s122, then LPP is also lost in relation to 'another communication or document' which 'is reasonably necessary to enable a proper understanding of the communication of document'. The section is convoluted but thankfully it includes an example:

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. Example A lawyer advises his client to understate her income for the previous year to evade taxation because of her potential tax liability "as set out in my previous letter to you dated 11 August 1994". In proceedings against the taxpayer for tax evasion, evidence of the contents of the letter dated 11 August 1994 may be admissible (even if that letter would otherwise be privileged) to enable a proper understanding of the second letter.

This is obviously intended to include letters of instruction and other related communications between the lawyer or client and the expert. However the scope of this section is not clear, and the authorities should be drawn upon to work out what other relevant evidence falls under this provision.

The matter of Roads Corporation v Love [2010] VSC 253 (10 June 2010) (Love) is a good example of where the parties must be careful about loss of LPP. In Love the Supreme Court of Victoria reviews the law concerning LPP in relation to experts, and is therefore a good case to draw on for the principles set out in the Evidence Act concerning LPP. I won't set out the facts of Love Privilege, expert witnesses and the Evidence Act 2008 (Vic)'.

In Love, Vickery J cited Warren J in Cobram Laundry Services Pty Ltd v Murray Goulburn Co-Operative Co Ltd [2000] VSC 353 as follows at [23]: 

As Warren J (as her Honour then was) observed in Cobram Laundry Services Pty Ltd v Murray Goulburn Co-Operative Co Ltd:[5] As a fundamental principle, when a witness is called in order to provide expert opinion evidence all of the facts and instructions upon which that witness bases the expert opinion are admissible and subject to production: see R v Meninga (1992) 66 ACLR 199; also, Cross on Evidence, Aust. ed., para. 2535. Furthermore, under the doctrine of fairness that applies to the claim for legal professional privilege with respect to a document, where it is fair so that the relevant evidence may be tested, a claim for legal professional privilege ceases to apply; it is taken to have been waived: Attorney-General (Northern Territory) v Maurice [1986] HCA 80; (1986) [1986] HCA 80; 161 CLR 475; Burnell v British Transport Commission (1956) 1 QB 187 (CA). Ultimately, the effect of upholding a claim for privilege necessarily involves withholding important information from the court that may in turn be at the expense of the administration of justice to one of the parties to the proceeding. Hence there must be good cause for the existence of any privilege: see Cross on Evidence, 

Vickery J at [25] then cited the comprehensive principles (and citations) concerning LPP in expert reports as set out in Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804 by Lindgren J:

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] FCA 33; (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: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (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] HCA 80; (1986) 161 CLR 475 at 481; [1986] HCA 80; 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] HCA 39; (1995) 185 CLR 83 at 98 ; [1995] HCA 39; 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] FCA 627; (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 Lux at [46].

Interestingly, in reference to the third point of the judgment of Lindgren J above, ss 118(c) and s119(b) suggest that drafts and other unilateral documents produced by an expert could be subject to LPP.