On 12 June 2012 the Supreme Court of Victoria determined that an implied waiver of privilege may occur upon the filing of an expert report in a proceeding. Implied waiver is therefore not necessarily contingent on the expert giving evidence at trial, as the active management of cases during interlocutory steps means parties may seek to rely on the report before trial commences, for example in the context of a mediation or an expert conclave.
Experts should therefore maintain a clear and concise database, from receipt of the first set of instructions, of all:
- documents given to them and/or relied upon by them;
- documents produced by them including photographs, investigative reports and/or test results;
- instructions, facts and/or assumptions provided to them; and
- draft reports produced.
Whilst some of these documents may be the subject of a valid claim for privilege, there may be an implied waiver of that privilege upon the filing of the expert’s report in a proceeding.
Prince Removal & Storage Pty Ltd v Roads Corporation  VSC 245
This case concerned a claim for compensation by the plaintiff, Prince Removal and Storage, in connection with the development of a housing estate.
The plaintiff had engaged Reeds Consulting Pty Ltd, in particular its director Mr Richard Brewster, a civil engineer, to provide an expert report in relation to the matter. In addition, the plaintiff engaged Marshall Day Acoustics to prepare an expert report which was subsequently filed in the proceeding.
The defendant, Roads Corporation, sought an order for discovery of two classes of documents over which the plaintiff claimed privilege.
The first class (Category 3 documents) included documents comprising communications and instructions received from the plaintiffs or plaintiffs' legal advisers to Reeds Consulting or Brewster in relation to the reports and/or draft reports prepared in relation to the proceeding.
The second class (Category 7 documents) included documents comprising communications between Marshall Day Acoustics and other persons involved in the proceeding, including Brewster and the plaintiffs' solicitors.
The defendant submitted that the plaintiff waived privilege in respect of the documents on the grounds that they contain facts or instructions on which the respective experts based their expert opinion, as contained in the reports filed in the proceeding. The plaintiff objected to production on the ground that there can be no implied waiver of privilege until the witnesses are called to give evidence as, although the reports have been filed, it is still open to the plaintiff not to rely on the reports at trial.
The Court's decision
Justice Emerton held that the circumstances established that privilege over the Category 3 Documents was impliedly waived when the expert reports were filed on the grounds that the documents 'constitute, evidence or relate to instructions' given to the expert. Her Honour also held that she would view the Category 7 Documents before making a determination, and that privilege over those documents would be waived to the extent that they contained instructions or facts on which the experts had based their reports.
Her Honour cited Warren J (as her Honour then was) in Cobram Laundry Services Pty Ltd v Murray Goulburn Cooperative Co Ltd  VSC 353, who held that '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'.
In addition, her Honour cited Lindgren J in Australian Securities & Investments Commission v Southcorp Ltd  FCA 804 in which a number of principles governing the admissibility of the facts and instructions upon which an expert opinion is based were laid down as follows:
- Generally, the confidential briefing or instructions given to an expert by a prospective litigant's lawyers will attract client legal privilege, unless the expert's report is disclosed for the purpose of reliance on it in the proceeding;
- Documents generated unilaterally by an expert witness do not attract the privilege because they are not in the nature of, and would not expose, communications of any kind; and
- 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 obtained the documents.
Having determined that privilege over facts and instructions contributing to an expert's report would be impliedly waived upon disclosure of the report, Emerton.J then went on to find that the filing of the report in court does in fact constitute disclosure, because a litigant may rely on the report before trial.
Interlocutory orders often require expert's reports to be filed and served well in advance of the trial date as part of the active case management of the proceeding. Her Honour considered that disclosing the facts relied on in preparation of an expert's report as early as possible in the proceeding would facilitate the efficient, timely and cost effective resolution of the dispute.
The role of the Civil Procedure Act
The Civil Procedure Act 2010 (Vic) (the Act) was introduced to better regulate the conduct of parties to civil litigation in Victoria. Justice Emerton relied on s 7 of the Act, providing that the overarching purpose of the Act is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
This decision demonstrates that in pursuit of the efficient achievement of justice, judges may be more willing to order that documents be discovered earlier in a proceeding to assist parties in narrowing the issues in dispute.
Experts should be aware that privilege may be impliedly waived over instructions and facts forming the basis for an expert report upon the filing of the report in court. It is not necessary that an expert give oral evidence, for privilege to be waived.
It is therefore critical that an expert's report accurately reflect the instructions and facts provided. Expert's must be cognisant of the potential for implied waiver of privilege over documents that are ancillary to their reports, and be prepared to discover these to other litigants within a short time frame.