Stewart v Cockatoo Dockyard Pty Ltd and ors [2002] NSWDDT 5

Reported Decision (2002) 23 NSWCCR 413

Dust Diseases Tribunal of New South Wales

CITATION : Stewart v Cockatoo Dockyard Pty Ltd and ors [2002] NSWDDT 5 Loris Jean Stewart as Legal Personal Representative of the Estate of the late Don William Stewart PARTIES : Cockatoo Dockyard Pty Ltd Commonwealth of Australia Eraring Energy MATTER NUMBER(S) : 308 of 2000 JUDGMENT OF: Curtis J at 1 CATCHWORDS: Miscellaneous Matters :- Privilege LEGISLATION CITED: CASES CITED: DATES OF HEARING: 17 April 2000 EX TEMPORE JUDGMENT DATE : 04/17/2002

FOR PLAINTIFF:Ms A Katzmann instructed by Slater and Gordon appeared for the plaintiff LEGAL REPRESENTATIVES: FOR DEFENDANT Mr J F Burn with Ms T Moisidis instructed by Goldrick Farrell Mullan appeared for Eraring Energy

JUDGMENT: 1. Mr Burn for Eraring Energy calling in aid s 118 of the Evidence Act has indicated that he will object to evidence being led from Dr A W Musk in the plaintiff's case because of a claim for legal professional privilege. 2. Dr Musk was initially qualified by the defendant to express an opinion in this matter, and he prepared a report of 17 January 2001, which was served upon the plaintiff's solicitor. The plaintiff's solicitor, notwithstanding the written objections of Eraring Energy, provided to Dr Musk further material and asked that the doctor furnish to them a further report. This he did on 11 January 2001. 3. It is the contention of Mr Burn that that report of 11 January 2001 from Dr Musk to the plaintiff's solicitor is a privileged document and evidence may not be adduced in relation to any matter there contained. Mr Burn frankly concedes that there is no statute, rule of Court or authority directly in point to support the contentions which he now advances. 4. S 118 of the Uniform Evidence Act is in the following terms: LEGAL ADVICE Evidence is not to be adduced if, on the objection by a client, the Court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer; or (b) a confidential communication made between two or more lawyers acting for the client; or (c) the contents of a confidential document (whether delivered or not) prepared by the client or a lawyer; For the dominant purpose of a lawyer or one or more of the lawyers providing legal advice to the client. 5. Mr Burn submits that the document prepared by the doctor for the plaintiff's solicitor is a confidential document because of the circumstance that it was in confidence that Eraring Energy sought the doctor's opinion in the first place. It is his assertion that the word "confidential" is to receive its meaning from the nature of the relationship between the author of the document and the client for whose litigious purpose the expert was first retained. This may be arguable, however, it seems to me it is unnecessary to so decide because of the further qualification in the section that the document be prepared for the "purpose of the lawyer providing legal advice" to the client. The report of Dr Musk of 11 January 2001, was not prepared for the purpose of the lawyer retained by Eraring Energy providing legal advice to Eraring Energy. 6. Mr Burn concedes frankly that nothing which was put to the doctor by the solicitors for the plaintiff in the letter of qualification to him would not be put to the doctor in cross-examination. He also concedes that the solicitors for the plaintiff need not have sought the report of 11 January 2001. They may have, in compliance with the rules, merely re-served the earlier report upon Eraring Energy and called Dr Musk in chief, and thus gained a tactical forensic advantage. 7. These flaws in the argument for Eraring Energy are further illustrated by the expert witness code of conduct contained within schedule K of the Supreme Court Rules. Cl 8 of that code is in the following terms: An expert witness who, after communicating an opinion to the party engaging him or her (or that party's legal representative), changes his or her opinion on a material matter shall forthwith provide the engaging party (or that party's legal representative) with a supplementary report to that effect which shall contain such of the information referred to in [previous paragraphs]. 8. It is important in cases such as this that the Tribunal, the parties and experts be conscious of the terms of the expert code, which include the following clauses: General Duty to the Court 2. An expert witness has an overriding duty to assist the Court impartially on matters relevant to the expert's area of expertise. 3. An expert witness's paramount duty is to the Court and not to the person retaining the expert. 4. An expert witness is not an advocate for a party. 9. I regard the conduct of Dr Musk in the present case as entirely honourable. It would be a pity if in future cases Eraring Energy were to resist from qualifying an expert whose objectivity and therefore value as a persuasive witness has been emphasised by this short saga. 10. I rule that the plaintiff may in this trial lead evidence from Dr Musk consistent with the opinions expressed in his report of 17 January 2001. Ms A Katzmann SC instructed by Slater and Gordon appeared for the plaintiff. Mr T G R Parker instructed by Allens Arthur Robinson appeared for the first defendant. Mr T J Morahan instructed by the Australian Government Solicitors appeared for the second defendant. Mr J F Burn with Miss T Moisidis instructed by Goldrick Farrell Mullan appeared for the fifth defendant.