Privilege of lawyer's expert report

Thursday, September 21, 2017

Legal Professional Privilege

  • In civil and criminal cases, confidential communications passing between a client and a legal adviser need not be given in evidence or otherwise disclosed by the client and, without the client's consent, may not be given in evidence or otherwise disclosed by the legal adviser if made either:

-  (Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 45 FCR 445, at 455, or:

-  Southern Equities Corp Ltd v West Australian Government Holdings Ltd(1993) 10 WAR 1 (FC).

 Litigation must be "reasonably apprehended": Warner v Women's Hospital[1954] VLR 410; [1954] ALR 682; or "reasonably anticipated": Grant v Downs(1976) 135 CLR 674 at  682.

-  This privilege extends to communications passing between the legal adviser and third parties providing that they fall within (2) above.

-  Where the communication is in writing, the writing must have been brought into existence for one or other of these purposes. The privilege does not protect documents which constitute or evidence  transactions, such as contracts or conveyances, which are not themselves the giving or receiving of advice or part of the actual or anticipated litigation: Baker v Campbell (1983) 153 CLR 52, 86-87.

The rule also protects documents which are not communications provided they are brought into existence for the dominant purpose of preparing for, or for use in, existing or contemplated judicial or quasi-judicial proceedings:Attorney General (NT) v Maurice (1986) 161 CLR 475, 490.

Dominant Purpose Test

-  The dominant purpose test applies both to communications for the purpose of obtaining or giving legal advice and to communications for the purpose of pending or contemplated litigation.

-  A "dominant" purpose is that which was the ruling, prevailing, or most influential purpose: Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority(2002) 4 VR 332,[10].

-  It is more than the primary or a substantial purpose. It must be clearly paramount: Grant v Downs (1976) 135 CLR 674, 678.

-  Where two purposes are of equal weight, neither is dominant.

-  If the decision to bring the document into existence would have been made irrespective of any purpose of obtaining legal advice, the latter purpose cannot be dominant.

Conclusion

-  If we seek to have an expert report remain subject to privilege, we must be able to evidence that the dominant purpose of its creation was for legal advice or in contemplation of litigation.

-  Therefore, it would be prudent to only seek the expert report once steps have been taken to evidence either of these factors.

Liability limited by a scheme approved under Professional Standards Legislation.

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