Common law privilege attaches to communications, not (merely) documents
Where one party serves an expert report, the documents behind that report, including those used in its preparation, normally cannot be the subject of a claim of privilege.[1] Also, at common law, the general view is that a document that is not a communication — in the sense that the document neither makes a communication nor records one[2] — cannot be privileged.[3]
What about a situation where an expert has used notes as the basis for expressing a verbal opinion to briefing solicitors — to the extent they are not necessarily used in the preparation of an expert report, can those notes be privileged at common law?
In Ghorbanzadeh v Western Sydney Local Health District,[4] the New South Wales Supreme Court considered the question. Ultimately, the issue turned on whether or not the notes had actually been communicated to the solicitors. (The parties agreed that, in this case, statutory privilege did not apply.[5])
In evidence, the expert — a doctor briefed in a medico-legal matter — said of the notes that he ‘used them as the basis for expressing [his] verbal opinion’ on the question of liability. As the Court noted, the expert did not say that he had ‘communicated’ his notes to the solicitors, nor that he had read aloud his notes to the solicitors, nor that his notes stated (or described or summarised) his verbal opinion. His evidence also did not state that he had told the solicitors what was in his notes.
That being the case, the Court held that the notes went no further than being ‘a working note on which [the expert’s] discussion or opinion may have been based’.[6]
The onus is on the party seeking to assert privilege to make good the case for it. Because the expert’s evidence fell short of demonstrating that the contents of his notes had been communicated, the notes did not qualify for a claim for privilege at common law.
(As an aside, in the Court’s ruling, Elkaim AJ observed:
I note that I was not requested to view the document and did not do so. However, I was informed that despite being in a doctor’s handwriting, it was legible.[7])
[1]: See, eg, Australian Securities & Investments Commission v Southcorp Ltd [2003] FCA 804, [21.3].
[2]: Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141, 162.
[3]: See, eg, Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 525 (Toohey J). By contrast, in Kennedy v Wallace [2004] FCAFC 337, Allsop J stated ‘I do not understand the law in Australia to deny privilege to a document made with the dominant purpose of obtaining legal advice on the basis that the document does not amount to the communication’: [229]. It is difficult to reconcile this with the earlier position of the High Court, but Allsop J arguably made that comment (and also discussed the issue in some detail at [229]–[234]) in the course of obiter, so much being revealed at [228].
[4]: [2023] NSWSC 1330.
[5]: Here, the statutory basis would have been the Evidence Act 1995 (NSW) ss 118 and 119. Materially similar provisions exist in other jurisdictions, including in Victoria.
[6]: Ghorbanzadeh v Western Sydney Local Health District [2023] NSWSC 1330, [32].
[7]: Ibid [34].