Roach & Ors v Page & Ors (No.17)

His Honour : The plaintiffs’ counsel challenged a claim of legal professional privilege made by the defendants in relation to certain documents produced in court under subpoena. The documents were described by the defendants’ legal representatives in a manner which indicated that they were communications or notes of communications between the defendants’ legal representatives and Dr Daigle, an expert witness to be called in the defendants’ case.

I ruled that the claim for privilege was not negated by the description of the documents. I said I would provide my reasons later. These are my reasons.

Part 36 r 13 provides as follows: 13 Privilege (1) This rule applies where: (a) the Court, by subpoena or otherwise, orders any person to produce any document to (b) … (c) … the Court … and neither Part 3.10 of the Evidence Act nor Part 3.10 of the Evidence Act 1995 of the Commonwealth is applicable. (2) The Court shall not compel … production of a document … unless and until the Court directs that the production … shall not be prevented by this subrule: (a) over the objection of a person if evidence of the document … could not be adduced in the proceedings over the objection of the person, by virtue of the operation of Part 3.10 Division 1 of the Evidence Act…

Part 3.10 Division 1 of the Evidence Act 1995 includes s119 which provides as follows: 119 Litigation 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) … for the dominant purpose of the client being provided with professional legal services relating to an Australian … proceeding (including the proceeding before the court) ...

The plaintiffs’ argument turned on Pt 36 r 13C and Schedule K. The rule provides as follows, so far as is relevant: 13C(2) Unless the Court otherwise orders: (a) at or as soon as practicable after the engagement of an expert as a witness, whether to give oral evidence or to provide a report for use as evidence, the person engaging the expert shall provide the expert with a copy of the code, (b) unless an expert witness’s report contains an acknowledgment by the expert witness that he or she has read the code and agrees to be bound by it: (i) service of the report by the party who engaged the expert witness shall not be valid service for the purposes of the rules or of any order or practice note, and (ii) the report shall not be admitted into evidence, (c) oral evidence shall not be received from an expert witness unless: (i) he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code and agrees to be bound by it, and (ii) a copy of the acknowledgment has been served on all parties affected by the evidence.

Schedule K provides, so far as is relevant: Application of code 1 This code of conduct applies to any expert engaged to: (a) provide a report as to his or her opinion for use as evidence in proceedings or proposed proceedings, or (b) give opinion evidence in proceedings or proposed proceedings. General Duty to the Court 2 An expert witness has an overriding duty to assist the Court impartially on matters relevant to the expert’s area of expertise. 3 An expert witness’s paramount duty is to the Court and not to the person retaining the expert. 4 An expert witness is not an advocate for a party.

The gist of the plaintiffs’ argument was that, in the context of Pt 36 r 13C and Schedule K, the dominant purpose of communications with an expert witness is to assist the court and not the provision to the client of professional legal services.

Assistance to the court must be the witness’s dominant purpose in providing an opinion for use in the proceedings. But the purpose of communications between the party’s legal representatives and the witness is nonetheless predominantly to assist the party. That is because the predominant purpose of such communications is to bring forward expert evidence in aid of the party. But for that purpose, the communications would not be entered into at all. The fact that the witness is constrained to assist the court and to be impartial does not displace that purpose.

The plaintiffs’ argument fails to recognise the adversarial nature of the proceedings. No party is under an obligation to adduce expert evidence to assist the court. No expert is obliged to provide evidence to assist the court. (Experts are not amenable to the coercive power of the court to compel their attendance at court.) The court receives the benefit of assistance from an expert only if it suits a party to adduce such evidence. (That is, unless the court itself appoints an expert witness: rarely done, and not relevant for the present case.) The witness’s evidence must be impartial, but communications with a view to securing and facilitating the provision of such evidence are entered into for the purpose of assisting the party, not for the purpose of assisting the court. To suggest otherwise fails to recognise this reality.

The position at common law is clear and entrenched. Communications with a potential witness are protected by legal professional privilege. One would need a clear expression of legislative intent before the common law was taken to be abrogated in relation to expert witnesses. No such expression of intent is to be found in the rules or in s119.

The broader implications of the plaintiffs’ argument also work to defeat it. At common law, legal professional privilege attaches to communications with any prospective witness. A lay witness is bound to tell the truth. Honest lay evidence is of no less assistance to the court than honest expert evidence. The plaintiffs’ argument would, therefore, apply equally to communications with a prospective lay witness. The argument accordingly runs against the common law principle in relation to witnesses generally, expert and lay alike. It is all or nothing. No intent to abolish the principle altogether can be found in the rules or in the Evidence Act.

For these reasons, the fact that the documents related to communications between the defendants’ legal representatives and a prospective expert witness did not negate the claim for legal professional privilege. -oOo-