IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 9424 of 1996.
Brisbane
[Grosvenor Hill (Qld) P/L & Anor. v. Interchase Corp. Ltd & Anor..]
BETWEEN:
GROSVENOR HILL (QUEENSLAND) PTY LIMITED
(formerly known as HILLIER PARKER (QLD) PTY LTD)
ACN 009 882 142
(Third Defendant) Appellant
AND:
BRIAN MOFFAT WAGHORN
(Fourth Defendant) Appellant
AND:
INTERCHASE CORPORATION LIMITED
(In Liquidation) ACN 010 663 993
(Plaintiff) Respondent
AND:
RICHARD ELLIS (QUEENSLAND) HOLDINGS
PTY LTD, ACN 010 724 964
(Respondent to Writ of Non-Party Discovery) Respondent
Pincus J.A.
Thomas J.
de Jersey J.
Judgment delivered 19 December 1997
Separate reasons for judgment of each member of the Court, all concurring as to the orders made.
APPEAL ALLOWED WITH COSTS, SET ASIDE THOSE ORDERS MADE BELOW INTRODUCED BY THE WORDS “IT IS ORDERED THAT” AND “IT IS FURTHER ORDERED THAT” AND ORDER IN LIEU THAT:
1. THE DOCUMENTS REFERRED TO IN THE SCHEDULE TO THE AFFIDAVIT OF ANDREW PETER JAMSON FILED ON 20 MAY 1996, OTHER THAN THOSE CONTAINED IN A FOLDER MARKED WITH THE LETTER “A”, ARE REQUIRED TO BE PRODUCED BY RICHARD ELLIS (QLD) HOLDINGS PTY LTD TO THE THIRD AND FOURTH DEFENDANTS.
2. THE PLAINTIFF AND RICHARD ELLIS (QLD) HOLDINGS PTY LTD PAY TO THE THIRD AND FOURTH DEFENDANTS THEIR COSTS OF AND INCIDENTAL TO THE HEARING BEFORE HELMAN J. ON 9 OCTOBER 1996.
CATCHWORDS: CIVIL PROCEDURE - Legal Professional Privilege - Expert Witness - whether documents in the possession of the expert connected with preparation of opinion are the subject of legal professional privilege - whether O. 35 r. 5(2) removes any privilege in respect of witness' documents - whether O. 35 r. 5(2) invalid - whether validating provision effective - whether a rule not valid at the commencement date can be “in force” - whether privilege has been waived as a result of disclosure of a document.
Harmony Shipping Co. S.A. v. Davis [1979] 3 All E.R. 177
R v. King [1983] 1 All E.R. 929
W v. Egdell [1990] 1 Ch. 359
Ward (1981) 3 A.Crim.R. 171
Baker v. Campbell (1953) 153 C.L.R. 52
Grant v. Downs (1976) 135 C.L.R. 674
Attorney-General (N.T.) v. Maurice (1986) 161 C.L.R. 475
Commissioner, Australian Federal Police v. Propend Finance Pty Ltd (1997) 71 A.L.J.R. 327
Cleland v. Boynes (1978) 19 S.A.S.R. 464
Taylor v. Guttilla (1992) 59 S.A.S.R. 361
Supreme Court Rules O. 35 r. 5(2)
Supreme Court of Queensland Act 1991 ss. 100Y, 117
Counsel: Mr D B Fraser Q.C. with him Mr T W Quinn for the appellants.
Mr R Chesterman Q.C. with him Mr Kelly for the respondents.
Solicitors: Ebsworth & Ebsworth for the appellants.
Allen Allen & Hemsley for the respondents.
Hearing date: 14 November 1997.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 9424 of 1996.
Brisbane
Before Pincus J.A.
Thomas J.
de Jersey J.
[Grosvenor Hill (Qld) P/L & Anor. v. Interchase Corp. Ltd & Anor.]
BETWEEN:
GROSVENOR HILL (QUEENSLAND) PTY LIMITED
(formerly known as HILLIER PARKER (QLD) PTY LTD)
ACN 009 882 142
(Third Defendant) Appellant
AND:
BRIAN MOFFAT WAGHORN
(Fourth Defendant) Appellant
AND:
INTERCHASE CORPORATION LIMITED
(In Liquidation) ACN 010 663 993
(Plaintiff) Respondent
AND:
RICHARD ELLIS (QUEENSLAND) HOLDINGS
PTY LTD, ACN 010 724 964
(Respondent to Writ of Non-Party Discovery) Respondent
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 19 December 1997
This is an appeal by defendants in a suit from an order, made in the Supreme Court on 9 October 1996, that documents referred to in a schedule to an affidavit of A P Jamson filed on 20 May 1996, are not required to be produced by Richard Ellis (Qld) Holdings Pty Ltd ("Richard Ellis"). Mr Jamson’s affidavit was made on behalf of Richard Ellis. The affidavit said among other things that Richard Ellis had searched records relating to valuations of the Myer Centre (in the Queen Street Mall, Brisbane) and had produced certain of the documents located and not produced others. Those which were not produced were divided, in the schedule referred to in the order appealed against, into five categories. All of those categories related the documents to what the affidavit called a "Retrospective Valuation" of the Myer Centre, and that was one done for the plaintiff Interchase Corporation Limited ("Interchase") in connection with the action in which the order under appeal was made. Interchase is a respondent to the appeal.
The valuation itself has been produced to the appellants by reason of O. 35 r. 5(2), which says that a document consisting of a statement or report of an expert is not privileged from disclosure. The explanation for the non-production of the documents relating to the retrospective valuation is to be found in para. 5 of Mr Jamson’s affidavit:
"Richard Ellis was informed by the plaintiff in this action [i.e. Interchase] that the plaintiff wanted Richard Ellis to withhold from production documents that were subject to legal professional privilege".
Richard Ellis is not a party to the action and no claim for privilege is made on its behalf; it is Interchase, the plaintiff in the action, which asserts the privilege, as appears from the paragraph of Mr Jamson’s affidavit which I have quoted. That is in accord with the orthodox view that if privilege exists in relation to documents connected with an action it is the privilege of the client - in this case Interchase. Production is sought from Richard Ellis as part of a process of third-party discovery, under O. 40 rr. 38A-38F.
It will be necessary, for reasons which will appear, to refer in more detail to the documents as described in the schedule to Mr Jamson’s affidavit, all of which documents have by the order appealed against been held to be protected from production, by legal professional privilege. But the essential issue may be simply stated: if an expert witness provides a statement of his opinion to one of the parties to an action, are documents in the possession of the expert, connected with the preparation of the opinion, the subject of legal professional privilege? The privilege asserted is, as mentioned above, not that of the expert, but that of the client on whose behalf the opinion has been solicited; the present problem could not arise if the expert were retained by a court, as can happen, or by the parties to a suit acting jointly, as can also happen. The contention is that the documents in question, being the subject of a privilege "owned" (so to speak) by the client Interchase, cannot be produced by compulsory process without the consent of Interchase; it is unclear whether, consistently with the basis of the order under appeal, Richard Ellis could lawfully produce the documents in question for inspection in a voluntary way without the consent of Interchase, if it wished to do so and no contract prevented that course.
The case concerns expert opinion and that is suggested to be a point against the correctness of the order which is attacked; we were referred to authority for the proposition, which can hardly be doubted, that an expert opinion is not supposed to be simply an argument for one side or the other, but an impartial opinion; that may be thought to throw doubt on the view that the side which happens to have engaged the expert can prevent disclosure of, for example, the expert’s working papers. But in my opinion the notion that the expert status of the witness makes a difference is fallacious; there is no property in any witness expert or inexpert, nor may a party intending to call a witness (whether or not a statement has been taken from that witness) prevent communication between the witness and any other party.
If an eyewitness to a motor accident makes a statement using notes, diagrams, photographs or other documents assembled for the purpose of making the statement, the fact that the witness has first been approached by one side rather than the other should not, at first sight, give the former a superior right in respect of the documents to which I have referred. They are the witness’ documents and the witness could ordinarily, without anyone’s permission, show them to the other side, produce them in court pursuant to subpoena or indeed publish them in a newspaper. Different considerations intrude if one of the parties to the action has a proprietary or contractual right, or simply an equitable right, of such a kind as to entitle it to restrain particular uses of the documents the witness has assembled.
But in the present case, Interchase’s asserted right to prevent production of the relevant documents by Richard Ellis is said to be founded on the doctrine of legal professional privilege only, not on any contractual relationship or equitable right. It is necessary to keep this firmly in mind in determining whether this claim, to what I shall call "witness’ document privilege", is made out. It is also desirable to keep in mind that, if it is right that a party which obtains a statement from a witness is entitled to prevent discovery of documents the witness has chosen to use in preparing the statement, that right is not merely one which may be asserted in the proceedings for the purposes of which the witness has supplied the statement; it survives the end of the case, the end of the solicitor-client relationship and even the death or dissolution of the party on whose behalf the statement was obtained: see S B McNicol, "Law of Privilege", The Law Book Company Limited, 1992, p. 81; and Re Dallhold Investments Pty Limited (1994) 53 F.C.R. 339. These far-reaching consequences are a reason to doubt whether holding that witness’ document privilege exists is necessary, in order to preserve the principle which at least primarily underlies the doctrine of legal professional privilege: protecting the confidentiality of lawyer-client communications.
Authorities on witness’ document privilege
That communication between lawyer and client is at the core of legal professional privilege appears, in my view, from the treatment of the subject in the High Court and reference is made to that topic below; but the protection of such privilege extends beyond the scope of such communications. The question whether it covers witness’ documents is one resolution of which may be assisted by reference to some English authority, including the decision in Harmony Shipping Co. S.A. v. Davis [1979] 3 All E.R. 177. In that case an expert was approached by the plaintiffs to advise, and he did advise, on the authenticity of a document. Carbon copies of it were produced to him and he expressed an opinion about them to the solicitors. Subsequently, he gave an opinion on other copies of the same documents to the solicitors for the defendants. The question in the case was whether the defendants were entitled to subpoena the expert to give evidence on behalf of the defendants. The argument for the plaintiffs was based on the law of contract; however, some of what was said is presently relevant, particularly in view of its subsequent treatment. Lord Denning M.R. said:
"So far as witnesses of fact are concerned, the law is as plain as can be. There is no property in a witness. The reason is because the court has a right to every man’s evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him.
. . .
Many of the communications between the solicitor and the expert witness will be privileged. . . . [t]hat means that a great deal of the communications between the expert witness and the lawyer cannot be given in evidence to the court.
. . .
Subject to that qualification, it seems to me that an expert witness falls into the same position as a witness of fact. The court is entitled, in order to ascertain the truth, to have the actual facts which he has observed adduced before it and to have his independent opinion on those facts." (180, 181)
In R v. King [1983] 1 All E.R. 929, a criminal case, the question was of precisely the same kind as that which is presently in issue. As in the Harmony Shipping case, documents were sent to a hand-writing expert. That was done by the prosecution at the defence’s request. The expert was subpoenaed at the trial by the prosecution, but the defence objected that he could not produce any documents emanating from the defence on the ground that they were protected by legal professional privilege. Dunn L.J. treated the Harmony Shipping case as authority for -
" . . . the rule . . . that in the case of expert witnesses legal professional privilege attaches to confidential communications between the solicitor and the expert, but it does not attach to the chattels or documents on which the expert based his opinion, or to the independent opinion of the expert himself . . . " (931)
That proposition is in my opinion implicit, at most, rather than explicit, in Harmony Shipping, which as I have pointed out dealt with an objection based on the law of contract. Dunn L.J. went on -
"The reasons for that are there is no property in an expert witness any more than any other witness and the court is entitled, in order to ascertain the truth, to have the actual facts which the expert has observed adduced before it in considering his opinion.
In general then no privilege will attach to exhibit 257. It was one of the documents examined by Mr Radley, on which he based his opinion, and the court was entitled to have it adduced in evidence." (931)
The judge went on to say that the same position applied in criminal cases.
In W v. Egdell [1990] 1 Ch. 359 a question arose as to the extent of the duty of a psychiatrist to preserve confidences reposed in him by the plaintiff, a person suffering from mental illness, who was thought to be dangerous. The case has present relevance because Scott J., the judge of first instance, dealt with and rejected an argument that the report, which was obtained for certain legal proceedings, was covered by legal professional privilege. Having discussed the decisions in, and quoted from, both the Harmony Shipping case and R v. King Scott J. added (396):
"Exhibit 257 [the document in question in R v. King] was a document which was in existence before proceedings commenced. It had not been brought into existence for the purpose of the proceedings themselves . . . Suppose the genuineness of a cheque is in question. If the cheque is submitted by one side to a handwriting expert for his opinion on the signature, the other side can call the expert to give evidence of that opinion . . . If a document already in existence before proceedings were contemplated had been, for purposes of comparison, submitted to the expert together with the cheque, the other side could put in evidence the expert’s opinion not simply on the cheque but also on the other document, the ‘control’ document: see Reg. v. King. But suppose the ‘control’ document had been brought into existence after proceedings had commenced for the purpose of being submitted with the cheque to the handwriting expert. Mr Robertson submitted that the other side could not call the expert to give opinion evidence on the comparison between the cheque and that ‘control’ document . . .
I do not accept that this distinction is a sound one . . . Legal professional privilege attaches to documents brought into existence for the purpose of legal proceedings; but if such a document is placed before an expert witness for his opinion, it becomes, in my judgment, part of the facts on which the opinion is based. The expert cannot be barred when giving evidence of his opinion from referring to the facts on which the opinion is based, including, if it be the case, documents which, in the hands of solicitors, would be covered by legal professional privilege".
The judge went on to draw a distinction between instructions given to an expert witness and the expert’s opinion, the former being covered by legal professional privilege and the latter not.
The principle which emerges from these cases is that documents used by an expert to form an opinion are not the subject of legal professional privilege, whether or not they emanated from the party claiming privilege. Indeed, R v. King is authority for the view that the opinion itself is not privileged; the correctness of that is not in issue here. Nor is it presently in question whether there is a distinction between privilege in civil and privilege in criminal proceedings; but it is perhaps of interest to note that the view that there is no difference, in this respect, between civil and criminal proceedings was accepted in Carter v. The Managing Partner, Northmore Hale Davy and Leake (1995) 183 C.L.R. 121. So strong is the effect of holding a document to be the subject of legal professional privilege that even the risk that, absent the document, a person accused of a crime may be wrongly convicted, cannot override it. Rules of that kind are one of the reasons why judges from time to time urge caution on those who would look with equanimity on proposals to expand the scope of the protection of legal professional privilege: see for example Baker v. Campbell (1983) 153 C.L.R. 52 at 74-75 (Mason J), Commissioner, Australian Federal Police v. Propend Finance Pty Ltd (1997) 71 A.L.J.R. 327 at 341 (Toohey J). There is a risk that excessive enthusiasm for the achievement of one desirable end - that people may be free to deal privately with legal advisers - may inhibit achievement of others which are also desirable - such as that trials, civil and criminal, may reach fair and true results.
To return to the authorities relating to witness’ document privilege, I have noted an Australian case which was decided before R v. King and before W v. Egdell; it is Ward (1981) 3 A.Crim.R. 171. That was an appeal from a verdict given in a trial in the New South Wales Supreme Court consequent upon the decision in Ward (1980) 142 C.L.R. 308. Before the trial Ward was examined by a psychiatrist retained by the defence, but the psychiatrist was in the event called by the Crown. The evidence given:
" . . . comprised information placed before Dr Barclay by the appellant’s advisers in documentary form and by the appellant himself in interview, and the opinions formed in consequence by Dr Barclay and conveyed by him to the appellant’s advisers." (179)
The Chief Justice held that:
"the communications which passed between Dr Barclay and the appellant were protected by legal professional privilege and hence . . . it was not permissible for the Crown to elicit from him . . . the account given by the appellant to Dr Barclay of the events of the shooting". (175)
Street C.J., then, was of opinion that documents the psychiatrist was given by the appellant’s solicitors (who engaged him), what the appellant himself told him, and the opinions he formed were all privileged; his Honour cited no authority for these propositions. Lee J. did not go so far; in his Honour’s view what the appellant Ward told the doctor and the opinion he formed from that account were the subject of legal professional privilege (190); his Honour said nothing about privilege attaching to documents. The third judge, Moffitt P., after complaining of the "general and vague" way in which the matter of legal professional privilege had been argued, went on:
"It is to communications that the privilege may attach, so as to protect the communication from disclosure as by being admitted in evidence . . .
The question whether a communication is inadmissible by reason of a claim of privilege, is different to the question whether an expert opinion is admissible in evidence. The opinion of an expert itself is not the subject of legal professional privilege. A report of it may be, but evidence of the opinion itself will not." (emphasis added) (179, 180)
Moffitt P. did not find it necessary to consider to what extent the information the doctor had before him when he gave his opinion was privileged; the point on which he differed from the other members of the court was whether a doctor’s opinion could be put in evidence, although formed as a result of privileged communications. As I have mentioned, here the question whether the expert’s opinion is privileged does not arise because that opinion, in the form of a report, has been disclosed in the process of discovery.
As it appears to me, the only respect in which anything said in Ward is in conflict with the principle which I have suggested emerges from the English cases is the view of Street C.J., but neither of the other judges appears to have taken the stance that documents which the doctor had before him when he formed his opinion and which he obtained from the appellant’s solicitors were privileged. It should be noted that those documents included the transcript of evidence of a previous trial, being the trial the conviction in which was set aside by the High Court in the case I have mentioned. The basis of Street CJ’s opinion, presumably, was that any documents sent by solicitors to a potential witness become privileged, by reason of their having been sent. The decision of the English Court of Appeal in R v. King and that of Scott J. in W v. Egdell are inconsistent with that view and the question therefore becomes, for the purpose of the present case, whether the opinion expressed by Street C.J. or that adopted in the English authorities should be followed.
To return to the facts of Ward, there a document, presumably a voluminous one, which the doctor had before him was the transcript of the previous trial - a public document recording evidence given in public. It might seem absurd if privilege were held to attach to it. On the other hand, if the law is that privilege attaches to any document which a potential witness obtains from a solicitor acting for one of the parties, that privilege cannot be overridden simply by the consideration that the document is a public one. It is clear from the decision of the High Court in Commissioner, Australian Federal Police v. Propend Finance Pty Ltd that privilege may attach to a copy of a document (such as a transcript) even where the original is not privileged.
The five categories and the general principles
It is convenient, at this point, to reproduce the description in Mr Jamson’s affidavit of the five categories of documents to which I have referred:
" SCHEDULE
Date Document Description
Various Letters, facsimiles and enclosures passing between Feez Ruthning as solicitors for the plaintiff and Richard Ellis
A regarding the Retrospective Valuation, numbered 1 to 12 inclusive, contained in a folder marked with the letter "A" and entitled "Richard Ellis - Writ of Non-Party Discovery".
Undated Drafts of various parts of the Retrospective Valuation
prepared by Richard Ellis, numbered 13 - 38 inclusive,
B contained in a folder marked with the letter "B" and entitled "Richard Ellis - Writ of Non-Party Discovery".
Undated Working papers produced by Brian Cox of Richard Ellis in the course of preparing the Retrospective Valuation,
C including copies of schedules, plans and other documents on which Brian Cox has made written calculations and notes, numbered 39 to 87 inclusive, contained in a folder marked with the letter "C" and entitled "Richard Ellis - Writ of Non-Party Discovery".
Various Copies of extracts from other Richard Ellis valuations of various properties (other than the Myer Centre) selectively
D collated and copied by Brian Cox of Richard Ellis for use in the preparation of the Retrospective Valuation, numbered 88 - 137 inclusive, contained in a folder marked with the letter "D" and entitled "Richard Ellis - Writ of Non-Party Discovery".
Various Copies of various other documents selectively collated and copied by Brian Cox from Richard Ellis for use in the
E preparation of the Retrospective Valuation, numbered 138 - 149 inclusive, contained in a folder marked with the letter "E" and entitled "Richard Ellis - Writ of Non-Party Discovery".
"
I have added an identifying letter to each paragraph.
It will be noted that it is not asserted, with respect to any of categories B, C, D or E that they include documents obtained from Interchase’s solicitors. That is made even clearer by para. 6(b) of the affidavit; so that the principle adopted by Street C.J. in Ward is of no assistance to Interchase, with respect to any of those documents. It appears to me, therefore, that prima facie one would hold the category B, C, D and E documents not to be privileged, following the English cases. They are documents of various kinds used in preparing a witness’ opinion, none of them obtained from Interchase’s solicitors. Before expressing a final conclusion on that point, however, it will be necessary to consider whether authority in the High Court tends against acceptance of what appears to be the English position.
The documents in category A raise different considerations. The affidavit asserts that they are communications which passed between the Interchase solicitors and Richard Ellis after the action began "for the sole purpose of giving legal advice in relation to, or obtaining evidence to be used in, this litigation". The only question to which acceptance of the English position would give rise, as to category A, is whether it includes documents not in origin privileged, but used by the expert in forming an opinion; on the basis of the English cases, such documents would not be privileged, although supplied by the solicitor to assist in the expert’s work. There is concealed in this issue a problem about the way in which a judge should proceed in considering the validity of a claim of privilege. Even if each document is precisely identified, it may not be possible to reach, merely from their description, a definitive conclusion on the validity of the claim with respect to each document; sometimes it may be that a sampling process may usefully be engaged in by the judge, to determine the credibility of a privilege claim designed to protect a large quantity of material; I do not accept that the judge must examine either all of the documents in question, or none of them. For practical reasons, it appears to me that the judge will ordinarily deal with challenged claims of privilege in accordance with categories, rather than individual documents.
Despite the possibility that category A includes documents of the kind which would not to be subject to privilege under English practice, I would, subject to the considerations discussed under the heading “Order 35 rule 5(2)”, below, uphold the primary judge’s decision with respect to that whole category. One reason for doing so is that if, for example, it emerges at the trial that one or more of the "enclosures" referred to in category A is a copy of a public document, privilege may nevertheless have attached on the principle of the Propend case.
As foreshadowed, I will now say something about authority in the High Court, which includes a considerable amount of discussion of the rationale of legal professional privilege.
It appears to me that it is not difficult to identify parts of these judgments which appear, if read strictly, to conclude the issues in favour of, or on the other hand against, what I have called the English position. As to the former, Dawson J. said in Baker v. Campbell (1983) 153 C.L.R. 52 at 122:
"Legal professional privilege attaches only to communications made for the purpose of giving or receiving advice or for use in existing or anticipated litigation". (emphasis added)
From that view it would follow that none of categories B, C, D and E in the present case are privileged. On the other hand, McHugh J. said in Propend (356):
"The privilege attaches whenever the communication or material is made or recorded for the purpose of confidential use in litigation or the obtaining of confidential legal advice . . . " (emphasis added)
But in none of the High Court cases was the question of witness’ document privilege directly raised. It appears to me that the proper use of these decisions, in the present case, is to identify the essential principles, or justification, underlying the doctrine of legal professional privilege.
I start with the statement of the rationale of the privilege to be found in the principal judgment in Grant v. Downs (1976) 135 C.L.R. 674 at 685:
"The rationale . . . is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications . . . ".
In Attorney-General (N.T.) v. Maurice (1986) 161 C.L.R. 475 at 487 one finds:
"Succinctly stated, the privilege protects from disclosure ‘communications made confidentially between a client and his legal adviser for the purpose of obtaining or giving legal advice or assistance' . . . [t]he raison d_être of legal professional privilege is the furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client . . . [w]hen the privilege applies, it enables the client to keep the communication from disclosure and interferes with the public’s ‘right to every man’s evidence’ . . . [b]ecause of this conflict between the public interest in ensuring the availability of all relevant evidence in a particular case and the public interest in the administration of justice through effective legal representation, the privilege is confined within strict limits . . . ".
Propend is however the richest source of statements of this kind. Although it is necessary to be selective, in the interests of brevity, the emphasis appears to be upon communication as the core of the privilege - and not any communication either, but communication between solicitor and client:
"There are exceptions to the general rule that is in the interests of justice that relevant documents be produced . . . [o]ne of the exceptions exists where there is legal professional privilege and it exists in order to preserve the confidential relationship between client and legal adviser . . . " (Dawson J. at 337, 338
I interpolate that it is difficult to see why any of a potential witness’ documents, not obtained from a party’s solicitor, must be kept secret "to preserve the confidential relationship between client and legal adviser".
"Legal professional privilege is concerned with protecting the confidence of communications between lawyer and client". (Toohey J at 342)
". . . legal professional privilege does not protect documents, as such, but protects communications between lawyer and client . . . a document which is brought into existence solely for the purpose of obtaining legal advice or solely for use in litigation and which is then provided to a lawyer for that purpose is, itself, a communication with the lawyer and . . . a privileged communication". (Gaudron J. at 351)
"Legal professional privilege is the shorthand description for the doctrine that prevents the disclosure of confidential communications between a lawyer and client, confidential communications between a lawyer and third parties when they are made for the benefit of a client, and confidential material that records the work of a lawyer carried out for the benefit of a client unless the client has consented to the disclosure. To be protected by the privilege, a communication must be made solely for the purpose of contemplated or pending litigation or for obtaining or giving legal advice". (emphasis added) (McHugh J. at 355)
" . . . the statement correctly identifies the subject matter of the privilege - communications. This point, however trite it may seem, is fundamental to the determination of the present appeal . . . [l]egal professional privilege is concerned with communications, either oral, written or recorded, and not with documents per se". (McHugh J. at 356)
" . . . the subject matter of the privilege is communications made solely for a particular purpose. In Grant v. Downs, Jacobs J. identified the rule that:
'communications with one’s legal adviser are privileged from disclosure and that the privilege extends not only to communications actually made but to material prepared for the purpose of communication thereof to the legal adviser.' " (Gummow J. at 365)
"Increasingly, in recent years . . . the Australian legal system has moved away from trial by ambush. . . [a] realisation of this consideration has contributed to a tendency in Australia to define narrowly the applicability of legal professional privilege . . .
. . . it is repeatedly emphasised that what is protected is communication between lawyer and client and with a third party in connection with the giving of legal advice". (Kirby J. at 373, 375)
With respect to categories B, C, D and E, presently in issue, there is no suggestion that any of them has been communicated to, or was prepared for the purposes of communication to, a legal adviser; the statements quoted above do not support the extension of the protection of legal professional privilege to such documents. The only justification for treating any of those documents as revealing communications with a legal adviser is the chance that some of them might, by a process of inference, conceivably indicate what the solicitors told the valuer in confidence. But that will not necessarily, or indeed generally, be so and the mere possibility that it is so is not enough to characterise witness’ documents as privileged; there is nothing sworn to which supports the notion that the B, C, D or E documents have the quality I have mentioned.
I conclude that, subject to any qualification necessary on account of the terms of O. 35 r. 5(2) the documents in category A should be treated as privileged and the rest not.
Order 35 rule 5(2)
The subrule says:
"A document consisting of a statement or report of an expert is not privileged from disclosure".
In accordance with this rule the Richard Ellis report has been disclosed to the appellants and it is in the record. It appears to be extremely comprehensive.
It was contended for the appellant that the disclosure of the valuation under the rule removed any privilege in respect of the documents in question in categories A to E. To generalise the proposition, it is that if a witness’ statement in the possession of a party has to be disclosed, under the rules, then documents which came into existence only to produce the statement are not privileged. This result, it was said, flowed either because the principal document - witness’ statement - is not confidential or because its production, even compulsorily, waives privilege in respect of the other documents.
An anterior question, raised on behalf of the respondent Interchase, is the validity of O. 35 r. 5(2). We were referred in this connection to South Australian authority on the validity of rules of a similar character, which appear to be authority for the view (putting the matter very simply) that a rule of court requiring a limited amount of disclosure of the party’s evidence may be valid, but one requiring a lot of disclosure may not: Cleland v. Boynes (1978) 19 S.A.S.R. 464, Taylor v. Guttilla (1992) 59 S.A.S.R. 361. The latter decision concerned a rule which made medical reports in personal injury actions discoverable; the validity of this rule was sought to be upheld on the basis of the earlier case, concerning the then rule which excluded from its scope a report where the party in receipt of such a report “does not intend to adduce evidence from the author of such report . . . ". The removal of this restriction was, as I understand the reasoning, held to convert the rule into one which was a "direct and radical intrusion into the field of substantive law" (Taylor v. Guttilla at 366) and so not "reasonably proportionate to the pursuit of the enabling purpose" (368). With respect for the learned judges who favoured this distinction, I remain a little uncertain why the narrower rule was thought to be truly characterised as one "regulating the pleadings practice and procedure in local courts" (377) and the other not. If the expressions just quoted properly describe rules obliging one to disclose a certain category of expert reports, then I do not clearly understand why they are not equally applicable to cover rules requiring disclosure of a rather wider category of expert reports. The epithets applied to the later rule, such as "radical", convey little more than that it was wider than the earlier rule and, perhaps, wider than lawyers with a strong conviction of the merits of an unalloyed adversary system would approve.
In the present case, however, it is unnecessary to reach an opinion as to whether the two South Australian cases are in principle reconcilable or on the question whether (if they are not) the earlier or the later is correct. The rule-making power in question there was narrower than that with which we are concerned and Parliament has, after the Queensland rule was made, enacted a statute validating it. That statute does not do so with absolute clarity. Section 6 of the Courts Legislation Amendment Act 1995 inserted in the Supreme Court of Queensland Act 1991 a s. 100Y:
"(1) A rule of court made under a jurisdiction law and in force immediately before the commencement (an ‘existing rule’) -
As to subs. 6, I note that s. 100Y (which was renumbered s. 118) commenced on 29 May 1995 and so the section expired on 29 May 1996. However, s. 20A of the Acts Interpretation Act 1954, made to apply to s. 100Y by subs. 5, has the effect that if an Act which "validates a thing that may otherwise be invalid" then "the . . . validating effect of the Act does not end merely because of the repeal of the Act": see s. 20A(2). The rule of court in question was made under a "jurisdiction law", a term defined in s. 100X of the same Act, but the point is whether the relevant rule, i.e. O. 35 r. 5(2) was "in force immediately before the commencement". The rule was made on 1 May 1994, before the commencement of s. 100Y but, assuming it went beyond the power given by the rule-making statute, was it ever "in force"? The rule-making power at the relevant time - i.e. when O. 35 r. 5(2) was made - was in s. 117 of the Supreme Court of Queensland Act 1991 which permitted the making of "rules of court under this Act for a jurisdiction law". Section 117(2) of the Supreme Court of Queensland Act 1991 read as follows:
"Without limiting subsection (1), a rule may make provision about any matter that -
It is clear that the power to make rules of court is not confined to matters of practice and procedure, from the terms of s. 117(3); but let it be assumed in favour of the argument against validity that when made O. 35 r. 5(2), although formally complying with the requirements of making rules of court, was invalid as being too “radical”, or failing the test of reasonable proportionality: South Australia v. Tanner (1989) 166 C.L.R. 161 at 165. The argument in favour of the view that the validating provision achieves nothing is simply that any rule which was not at the commencement date valid was not "in force". There could be no doubt about the power of the Queensland legislature itself directly to enact such a provision - i.e. one requiring disclosure of expert reports, nor any doubt about its power to validate an otherwise invalid rule; but the question is whether the words "in force" can be read only as a reference to valid rules or are, on the other hand, capable of applying to rules which are on their face valid, as having been made in the way the statute prescribes and purporting to have been made under the relevant statute. To avoid the consequence, against which courts lean, that a statutory provision is treated as intended to have no effect whatever, one should adopt the latter conclusion.
That is, the rules being on their face valid, in the sense that there was an Order in Council of 3 February 1994 (notified in the Queensland Government Gazette Volume 305, p. 334) purporting to make them as rules of court, they must be intended to be caught by the validating provision.
Different questions might perhaps arise if what purported to be a rule of court was found to deal with a subject quite remote from the rule-making function: see Lynch v. Brisbane City Council (1961) 104 C.L.R. 353 at 365, discussed by Thomas J. in Kwiksnax Mobile Industrial & General Caterers Pty Ltd v. Logan City Council [1994] 1 Qd.R. 291 at 306 and 307. It was not suggested in the present case that the extent of disclosure required by O. 35 r. 5(2) merits the description applied by Thomas J. to certain by-laws in that case (“ridiculously wide"). I refer also, in this connection, to the decision in Ousley v. R (1997) 148 A.L.R. 510 at 518, 541, 542, 543 and 549.
It follows that, in my opinion, O. 35 r. 5(2) is valid.
It was argued on behalf of the appellant that by reason of the operation of O. 35 r. 5(2), if valid, documents other than the valuation report itself would be deprived of the protection of privilege. This was said to be so, as I understood the argument, by necessary implication.
Unless the letter of instruction, improbably, gave the valuer some confidential instruction as to the desired content of the report it is difficult to understand what in the letter of instruction could be really confidential. Commonsense may be thought to favour the appellant's suggestion that the requirement that the valuation report be disclosed necessarily opens the way to disclosure of such documents as the letter of instruction in response to which it was given. On the other hand it would have been simple enough for those who made the rule to draw O. 35 r. 5(2) more broadly so as to require disclosure of categories of documents other than those expressly mentioned - “a statement or report of an expert”. It does not appear to me that the implication put forward by the appellant can be said to be necessary and I therefore reject that argument.
There remains the submission that there has been a relevant waiver of privilege; it was argued for the appellant that such a waiver may take place as a result of disclosure, even compulsorily, of a document. The principal authority relied on was Attorney-General (N.T.) v. Maurice, and that is authority for the view that a waiver may be imputed where “disclosure or use of material that has been made renders it unfair to uphold the privilege in the associated material”, per Gibbs C.J. at 483; see also per Mason and Brennan JJ. at 487.
It may reasonably be argued to be odd and perhaps inconvenient to uphold the claim of privilege in respect of documents in category A, the valuation report to which they relate having been disclosed; but I fail to see how the respondent's insistence upon privilege for the category A documents can reasonably be described as unfair.
Summary
Orders
I would allow the appeal with costs, set aside those orders made below introduced by the words “It is ordered that” and “It is further ordered that” and order in lieu that:
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 9424 of 1996
Brisbane
Before Pincus JA
Thomas J
de Jersey J
[Grosvenor Hill (Qld) P/L & Anor. v. Interchase Corp. Ltd & Anor.]
BETWEEN:
GROSVENOR HILL (QUEENSLAND) PTY LIMITED
(formerly known as HILLIER PARKER (QLD) PTY LTD)
ACN 009 882 142
(Third Defendant) Appellant
AND:
BRIAN MOFFAT WAGHORN
(Fourth Defendant) Appellant
AND:
INTERCHASE CORPORATION LIMITED
(In Liquidation) (ACN 010 663 993)
(Plaintiff) Respondent
AND:
RICHARD ELLIS (QUEENSLAND) HOLDINGS
PTY LTD, ACN 010 724 964
(Respondent to Writ of Non-Party Discovery)
Respondent
REASONS FOR JUDGMENT - THOMAS J.
Judgment delivered 19 December 1997
In this action, which is slowly wending its way towards trial, the plaintiff (“Interchase”) is suing various defendants for damages for negligence. The alleged negligence relates to valuations prepared for Interchase by or on behalf of the four defendants prior to Interchase embarking upon a commercial development known as the Myer Centre. It is claimed that the defendants negligently overvalued the project.
Interchase’s solicitors subsequently obtained an expert report from Richard Ellis (Queensland) Holdings Pty Ltd (“Ellis”). The report has been referred to as a “retrospective” valuation of relevant property. It was disclosed and produced by Interchase to the defendants in obedience to O. 35 r. 5(2) of the Rules of Court. That sub-rule provides that a document consisting of a statement or report of an expert is not privileged from disclosure. Interchase however has maintained a claim to privilege with respect to documents relating to the production of the report, including correspondence between Ellis and Interchase’s solicitors, Ellis’s drafts and working papers, source materials and documents collated and copied by Ellis in the course of preparing the valuation. These documents may conveniently be referred to as “the ancillary documents”.
Two separate appeals have been heard together. The first appeal (No. 9424 of 1996) is brought by two defendants against an order made pursuant to an application for third party discovery against Ellis. In that instance at the request of and on behalf of Interchase, Ellis claimed privilege against production of various documents in Ellis’s possession. A chamber judge upheld Interchase’s claim to privilege in respect of the ancillary documents. The second appeal (No. 2942 of 1997) is brought by Interchase against an order of another chamber judge requiring it to make and file a further affidavit of documents. The basis of that order seems to be that Interchase should in effect provide better particulars of the documents and the circumstances of their coming into existence so that a better understanding might be had of the basis of the claim for privilege.
The reasons which have been respectively prepared by Pincus JA in the first appeal and by de Jersey J in the second considerably facilitate my task.
It is convenient that the first appeal be considered first. The first question is the validity of O. 35 r. 5(2).
Validity of O. 35 r. 5(2)
This rule forms part of a new O. 35 which came into force on 1 May 1994. The new order, consisting of 35 rules introduced a new system concerning interrogatories and discovery of documents. Recognition of a duty of disclosure underpinned the new rules, and some oppressive features and cost manufacturing tendencies of the old rules were eliminated.
It is not necessary to present a full history of the rule-making power of the Supreme Court of Queensland, but an overview is desirable. It commenced with s.27 of the Moreton Bay Supreme Court Act 1857, under which general rules or regulae generales were promulgated from time to time by the judges. Under s.67 of the Supreme Court Constitution Amendment Act 1861, if rules were not disallowed by the Governor upon the address of the Legislative Assembly, they were published in the Government Gazette and took effect as if they were part of the empowering Act. Executive power was however extended by ss. 11 and 12 of the Supreme Court Act 1921 which repealed the rule-making powers vested in the judges and transferred them to the Governor-in-Council, to be exercised by that body with the concurrence of any two or more judges. Those sections remain in force and are now to be found as s.294 of the Supreme Court Act 1995. In 1928, in the wake of a decision (Newton v Newton [1928] State Reports Qld 192) that questioned the validity of a rule of court, with awkward consequences, an act was passed (the Supreme Court Acts Amendments (Rules Ratification) Act 1928 - (“the 1928 Rules Ratification Act”). It provided in s. 2(2):
The general power to make rules under the Supreme Court Act 1921 is to make “such rules of court as may be deemed necessary or convenient for regulating the procedure and practice of the Supreme Court for the purpose of giving full effect to this part and any other Act conferring jurisdiction power or authority on the court.” The objects of “simplifying procedure and saving expense and expediting business” are express objects of the Act. In 1991 the Supreme Court of Queensland Act provided (in s.104(1)) that rules of court “in force under an Act immediately before the commencement of this section” should continue to have effect as if the 1991 Act had not been enacted. That Act also (by s.110) repealed the 1928 Rules Ratification Act. However, to the extent to which the 1928 Act was one which “validates a thing that may otherwise be invalid” s.20A(2) of the Acts Interpretation Act 1954 gives it continuing effect despite its repeal. Plainly the validating effect of that act upon all rules made up to 1991 would survive the repeal of the 1928 Act, but I have some difficulty with the notion that these provisions continued to protect future rules from judicial scrutiny.
That then was the legislative position when the new O. 35 was made by Order-in-Council on 3 February 1994, to take effect from 1 May 1994.
In the following year, s.6 of the Courts Legislation Amendment Act 1995, as it seems to me, specifically adverted to the then existing Rules of Court and again confirmed them. The position whereunder the rule-making power is vested in the Governor-in-Council with the agreement of two or more Judges has been continued, both under s.294 of the Supreme Court 1995 and under s.117 of the Supreme Court of Queensland Act as amended by the Courts Legislation Amendment Act of 1995.
I am inclined to think that the new O. 35, including r. 5(2), was a valid rule-making exercise, effecting changes that were necessary and convenient for regulating the procedure and practice of the court and for giving effect to the objects of the Act that conferred the rule-making power. It is however not necessary to express a final view on this point, as I agree, for the reasons stated by Pincus JA, that s.6 of the Courts Legislation Amendment Act, which inserted a section then described as s.100Y in the Supreme Court of Queensland Act 1991, confirmed the validity of the then existing rules. The reference to the existing rules “made . . . and in force immediately before the commencement . . .” was not in my view intended to raise questions as to the validity of individual rules, but rather was a reference to the duly promulgated and gazetted rules as they then stood. In my view Parliament was prepared to confirm their validity of those rules and declared that they were “taken to be made under this Act” (s 100Y(2)).
The submission that the rule is invalid therefore fails.
Are the ancillary documents covered by O. 35 r. 5(2)?
The sub-rule provides a limited exception in the application of the usual rules applicable to privileged documents. The exception was limited to “a statement or report of an expert”. For convenience I shall restate here the five categories of document in Ellis’s possession which comprise what have been referred to as “ancillary documents”.
A Letters, facsimiles and enclosures passing between Feez Ruthning as solicitors for the plaintiff and Richard Ellis regarding the Retrospective Valuation, numbered 1 to 12 inclusive, contained in a folder marked with the letter ‘A’ and entitled ‘Richard Ellis - Writ of Non-Party Discovery’.
B Drafts of various parts of the Retrospective Valuation prepared by Richard Ellis, numbered 13 - 38 inclusive, contained in a folder marked with the letter ‘B’ and entitled ‘Richard Ellis - Writ of Non-Party Discovery’.
C Working papers produced by Brian Cox of Richard Ellis in the course of preparing the Retrospective Valuation, including copies of schedules, plans and other documents on which Brian Cox has made written calculations and notes, numbered 39 to 87 inclusive, contained in a folder marked with the letter ‘C’ and entitled ‘Richard Ellis - Writ of Non-Party Discovery’.
D Copies of extracts from other Richard Ellis valuations of various properties (other than the Myer Centre) selectively collated and copied by Brian Cox of Richard Ellis for use in the preparation of the Retrospective Valuation, numbered 88 - 137 inclusive, contained in a folder marked with the letter ‘D’ and entitled ‘Richard Ellis - Writ of Non-Party Discovery’.
E Copies of various other documents selectively collated and copied by Brian Cox from Richard Ellis for use in the preparation of the Retrospective Valuation, numbered 138 - 149 inclusive, contained in a folder marked with the letter ‘E’ and entitled ‘Richard Ellis - Writ of Non-party Discovery’.”
Quite simply none of those documents or classes of documents appears to be a statement or a report. The documents relate to the eventual report, but go no further than this. They therefore fail to fall within the rule.
The further submission was made on behalf of the appellant that Interchase has waived any right to object to production of the ancillary documents through its production of the Ellis report. I would reject this on several bases. In the first place it does not necessarily follow that waiver of privilege with respect to one document waives privilege to all other documents associated with it. In the second place, it has been said that waiver is to be implied when “by reason of some conduct on the privilege holder’s part, it becomes unfair to maintain the privilege” (Attorney-General (NT) v Maurice (1986) 161 CLR 475, 487 per Mason and Brennan JJ). One example where this would seem to be so would be when a party calls an expert to present his opinion which has been formulated in a report. Proper examination and cross-examination of the expert would be seriously compromised unless assumptions and facts on which the expert proceeded, and the process by which he or she arrived at an opinion, could be explored. Situations such as this, and the very different situation in Attorney-General v. Maurice, may be contrasted with the present situation where Interchase produced the report only because it was bound to do so by the requirements of O. 35 which in this respect has removed the privilege it desired to assert. In other words it produced the report under compulsion. It seems to me that it would be quite unfair to hold that by responding to this compulsory process Interchase has impliedly waived any rights it may have with respect to the other documents that are not the subject of the rule. I would also reject the appellant defendants’ submissions on this point for the reasons stated by Pincus JA.
Application of the general law
The documents in categories A to E above are therefore subject to the general principles applicable to legal professional privilege. The question is whether they are properly protected from disclosure.
The rationale of the protection of legal professional privilege is a perceived need to protect the confidences between clients and their legal advisers (Grant -v- Downs (1976) 135 CLR 674 685; Australian Federal Police -v- Propend Finance (1997) 71 ALJR 327, 355-356). Although marginal cases constantly arise, the Courts have succeeded in identifying appropriate limits to the confidentiality of communications in dealings between client and Solicitor.
However more complex factors arise when the solicitor finds it expedient to enlist the assistance of other persons. In this context an expert is a third person from whom the client, represented by a solicitor, hopes to obtain an advantage. The extent of protection applying to communications between the solicitor and the expert concerning alleged facts or hypotheses which the expert is asked to assume is, I think, a grey area. The solicitor is deliberately converting the expert into a witness. The community has some interest in ultimately being able to ensure (through the Courts) that this process is not abused. It is desirable that the rules be such that the Courts, or the adversary, be able to explore fairly fully the circumstances of the formation of the opinion. It is also necessary in some cases to explore the circumstances and nature of the retainer. However, to the extent that communications of this kind (commonly called “instructions”) are made solely for the purpose of use in litigation and are intended to be confidential, such instructions are generally thought to enjoy protection.
“ There is, in my judgment, a clear and important distinction to be drawn between, on the one hand, instructions given to an expert witness and, on the other hand, the expert’s opinion given pursuant to those instructions. The instructions are covered by legal professional privilege. The opinion is not.”
(W. Egdell (1990) 1 Ch 359, 396, per Scott J.)
Whatever the limits of protection of the communications (both ways) between the solicitor and the third party may be, it is difficult to see any justification in principle or policy for protection of documents which the expert generates and the information which he or she collects in order to form an opinion. The important principle that there is no property in a witness means that an adverse party may subpoena an expert retained by the original party and require that expert to give all relevant information in his possession, including an expression of his opinion, to the Court. It is perhaps curious that statements made by a plaintiff to (say) a doctor or engineer are not privileged while similar (or dissimilar) statements made to such persons on the plaintiff’s behalf by the plaintiff’s agent (the solicitor) are. It is difficult to draw a tidy dividing line between the opinion and “the instructions” because the opinion of the expert is commonly premised upon the facts supplied by that means. However, if the opposite party calls the expert to give evidence, and is met by a claim of privilege, the expert may still give all relevant facts in his or her possession, including the opinion eventually reached. The privileged instructions may not be divulged as such, but the expert may state the hypotheses or assumptions upon which the opinion is based. In this way the Courts grapple with the dividing line. (Compare Crompton v Commissioner of Highways (1973) 32 LGRA 8, 19, per Wells J.) It is difficult however to justify extending privilege to other documents come into existence in the course of formation of an expert’s opinion. I would not do so unless constrained by authority.
The approach taken in the English decisions, is illustrated by the following passage from the judgment of Scott J in W v Egdell (1990) 1 Ch. 359, 396.
“If a document is submitted to an expert witness for examination and if the opinion of the expert is relevant to an issue in the case, the expert is, in my judgment, in civil cases at least, a competent and compellable witness to give evidence of what has been put before him and of his opinion on it. Legal professional privilege attaches to documents brought into existence for the purpose of legal proceedings; but if such a document is placed before an expert witness for his opinion, it becomes, in my judgment, part of the facts on which the opinion is based. The expert cannot be barred when giving evidence of his opinion from referring to the facts on which the opinion is based, including, if it be the case, documents which, in the hands of solicitors, would be covered by legal professional privilege.”
It is possible that such decisions may be explained on the basis that once the expert is called by the party who engaged him or her, privilege is waived both in respect of the opinion and in relation to documents upon which the opinion is based. However it is difficult to think that the position would be any different if the expert were called by the adverse party, so I do not think that the English decisions are properly explained away on that basis. There is simply no authority supporting the view that privilege extends generally to documents on which an opinion is based.
In the field of expert evidence it is difficult to sever an opinion from the information and process upon which it is based. It would seriously jeopardise the proper testing of such witnesses if privilege were extended to documents of the kind which are described in categories B, C, D and E in the present case. It is undesirable to encourage any tendency to make experts part of a team captained by one party. Opinion evidence is a special kind of evidence, and Courts have traditionally encouraged experts who are qualified to give such evidence to be objective. In my view an expert’s duty to the Court is more important than the duty to a client.
We are concerned in this case with discovery and production of documents. A necessary basis for privilege to attach to anything - document or otherwise - is that it records a communication. The material in categories B, C, D and E has remained in Richard Ellis’s possession, and has not been the subject of any communication with the solicitors, or for that matter anyone else. The basis upon which privilege was claimed for these documents is confined to the claim that they were “brought into existence by Richard Ellis solely for use in this litigation since its commencement and have been kept confidential”. (my italics). The italicised words draw attention to what is missing, and expose a deficiency in the claim. The documents consist mainly of working papers and valuations of other properties, and lack the quality of confidentiality. There is no reason to think that the documents were made for any confidential purpose. The other deficiency is that they were not communicated or intended to be communicated to anyone. In Commissioner Federal Police v. Propend Finance Pty Ltd (1997) 71 ALJR 327, 356, McHugh J. underlined the fundamental point that the subject matter of privilege is communications.
“This point, however trite it may seem, is fundamental to the determination of the present appeal. Much of the confusion present in the case law arises from a failure to apply it. Legal professional privilege is concerned with communications, either oral, written or recorded, and not with documents per se.”
In the present matter, shortly put, the documents in no way make or record communications, let alone confidential communications.
I would hold that in general, when an expert is engaged by a solicitor for the purpose of giving evidence in a case, documents generated by the expert and information recorded in one form or another by the expert in the course of forming an opinion are not a proper subject for a claim of legal professional privilege. Privilege may however be claimed in relation to communications between the expert and the solicitor (both ways) when such communication is made for the purpose of confidential use in the litigation. Beyond this there is no sufficient reason why any material relevant to the formation of the expert’s opinion should be subject to a claim of legal professional privilege. It is as well to add that an expert or solicitor may not artificially manufacture privilege by, for example, the expert sending his or her file to the solicitor. Documents of this kind simply are not confidential.
For the above reasons, and the further reasons expressed by Pincus JA, I consider that no valid claim exists for privilege in respect of categories B, C, D, and E of the documents in the possession of Richard Ellis.
I agree with the orders proposed by Pincus JA.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 9424 of 1996
Brisbane
Before Pincus JA
Thomas J
de Jersey J
[Grosvenor Hill (Qld) P/L & Anor v Interchase Corp Ltd & Anor]
BETWEEN:
GROSVENOR HILL (QUEENSLAND) PTY LIMITED
(formerly known as HILLIER PARKER (QLD) PTY LTD)
ACN 009 882 142
(Third Defendant) Appellant
AND:
BRIAN MOFFAT WAGHORN
(Fourth Defendant) Appellant
AND:
INTERCHASE CORPORATION LIMITED
(In Liquidation) ACN 010 663 993
(Plaintiff) Respondent
AND:
RICHARD ELLIS (QUEENSLAND) HOLDINGS
PTY LTD, ACN 010 724 964
(Respondent to Writ of Non-Party Discovery) Respondent
REASONS FOR JUDGMENT - de JERSEY J
Judgment delivered 19 December 1997
I have had the advantage of reading the reasons for judgment of Mr Justice Pincus. I agree with those reasons, and with the orders his Honour proposes. I also agree with the reasons of Mr Justice Thomas.
