Case: Interchase Corporation Limited (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1) (1999) 1 Qd R 141
Outcome: applied
It is convenient to consider the fate of the application, given its focus, by reference to the question as to whether at common law legal professional privilege can attend communications passing between experts or documents produced to experts for the purposes of providing an expert opinion. Authoritative guidance to the resolution of such a question is provided in the judgments delivered by Pincus JA and Thomas J, with each of whose judgments de Jersey J (as the Chief Justice then was) agreed, in Interchase Corporation Limited (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1) (1999) 1 Qd R 141. Suffice it to say, that case was decided in respect of a similar controversy in respect of legal professional privilege. 16 After a very searching analysis of prior authority, the view reached by Pincus JA at page 148 was that: 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. 17 There were five categories of document which were controversial and the subject of privilege claim in the Interchase case. They are set out in a table which appears at page 150 of the reasons for judgment of Pincus JA. That table was in the following terms: Date Document Description Various 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'. Undated 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'. Undated 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'. Various 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'. Various 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' 18 Later on page 150, Pincus JA observed that it appeared to him that, prima facie, one would hold, following English authority, that documents within categories B, C, D and E were not privileged. As his Honour observed there: They are documents of various kinds used in preparing a witness's opinion, none of them obtained from Interchase's solicitors. 19 His Honour further observed that the documents in category A raised different considerations. In respect of that category his Honour stated as follows at page 151: 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. 20 That presents a difficulty in this case, if only in the sense that the privilege claim advanced on behalf of Termicide is, to put it charitably, of the most general in its description of the documents covered by the asserted claim. Later in his judgment in Interchase , Pincus JA considered whether the position which he thought obtained in light of English authority ought to be in any way altered or varied in light of authority in this country. Suffice it to say, his Honour did not consider that Australian authority compelled any different conclusion. In respect of letters of instruction to experts, his Honour observed at page 156 that: 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. 21 The view to which his Honour came, ultimately, was that documents in category A, being those passing between the plaintiff's solicitors and the valuer they engaged, relating to the valuation, are privileged, but the documents in categories B, C, D and E, being those which were brought into existence or were obtained by the valuer to assist in the preparation of the valuation report, were not privileged. His Honour's conclusion was that "witness document privilege" did not exist. In his separate reasons for judgment, Thomas J observed at page 160, in his discussion under the heading Application of the General Law as follows: 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] HCA 63 ; (1976) 135 C.L.R. 674 , 685; Australian Federal Police v. Propend Finance [1997] HCA 3 ; (1997) 188 C.L.R. 501 , 551-552). 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. 22 A little later, at pages 160 to 161, Thomas J continued: 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 adversary 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 instruction" because the opinion of the expert is commonly premised on facts supplied by that means. 23 I interpolate that his Honour's observation in respect of the subpoena process is particularly germane in this case. Later, at page 161, his Honour observed: 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. 24 Finally, at page 162, his Honour made the following statement by way of summative conclusion: 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 in his or her file to the solicitor. Documents of this kind simply are not confidential. 25 Though reported in the authorised reports in 1999, the Interchase case was decided in 1997, that is prior to the decision of the High Court in Esso Australia Resources Limited v Commissioner of Taxation . Thus, that explains the reference by their Honours to a sole purpose test. The later decided Esso Australia Resources case holds that for Australia the test at common law for legal professional privilege in relation to documents is whether a communication was made or a document was prepared for the dominant purpose of a lawyer providing legal advice or legal services. Subject to that necessary qualification, the discussion of principle in the Interchase case is compelling. 27 Though brief, it is evident from his Honour's observation that, at least in respect of the communications to Mr Robinson in that case, he was of a similar view to that which is evident in the reasons for judgment of Pincus JA and Thomas J in the Interchase case. Thus, a pervasive claim or a blanket claim for privilege in respect of the documents produced on subpoena does not seem to be warranted. Indeed, there is every likelihood that it greatly overstates the basis upon which privilege might validly be claimed. The question becomes how best to deal with the question of privilege if any attaching to documents which have been produced on subpoena? 28 In the first instance, it would be a misuse of judicial resources for me to examine each and every document produced on subpoena to the end of determining whether privilege ought to be claimed. This task was nonetheless one which I was urged to undertake by Granitgard. I do not propose to undertake that task in the first instance. Instead, it seems to me that Termicide ought to do what a counsel of perfection might suggest it should have done before asserting a privilege claim to start with. In other words, it ought to identify with precision, seriatim, each and every document in respect of the subpoenaed documents, in respect of which a claim for privilege is pressed. 29 In so doing it will now have the benefit of the Court's reasons for judgment as to categories, in respect of which privilege is and is not available. It is unfortunate that Granitgard has had to bring such an application, but it having been brought, there ought to be relief granted to enable it to access documents in respect of which there is no basis for the making of a privilege claim. Further, the party which has asserted privilege, Termicide, needs to approach the task of identifying, with precision, documents in respect of which the claim is maintained with considerable expedition, given that the case is presently fixed for trial on 20 October 2008.