New South Wales Supreme Court CITATION : Rhiannon Rigby v Shellharbour City Council & Anor [2003] NSWSC 906 HEARING DATE(S) : 02/10/2003 JUDGMENT DATE : 2 October 2003 JUDGMENT OF : Dunford J DECISION : Expert's supplementary report not privileged - defendants granted access except for one paragraph. CATCHWORDS : EVIDENCE - documents - expert's report - supplementary report - whether liable to production - prepared for purpose of the litigation - client legal privilege - waiver - EVIDENCE - expert witness - Code of Conduct - duty to court - not to be advocate for a party - advice as to cross-examination and conduct of the case. LEGISLATION CITED : Evidence Act 1995 ss 26(b), 119, 122, 135 SCR Pt 36 rr13A(2), 13C(2),(3), Schedule K Attorney General (NT) v Maurice (1986) 161 CLR 475 CASES CITED : General Accident Fire and Life Assurance Corp Ltd v Tanter [1984] 1 WLR 100 Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Streamship Corporation (No 2) [1981] Com LR 138 Sevic v Roarty (1998) 44 NSWLR 287 Rhiannon Rigby by her tutor Carole Lynne Rigby v PARTIES : Shellharbour City Council - First Defendant Southlake BMX Club Incorporated - Second Defendnat FILE NUMBER(S) : SC 20724/01 P Webb QC & J G Stewart - Plaintiff COUNSEL : M J Joseph SC & S P W Glascott - First Defendant D L Davies SC & K M Guilfoyle - Second Defendant Lough & Wells Lawyers - Plaintiff SOLICITORS : Phillips Fox Lawyers - First Defendant Ebsworth & Ebsworth Solicitors - Second Defendant - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J THURSDAY 2 OCTOBER 2003 20724/01 RHIANNON RIGBY BY HER TUTOR CAROLE LYNNE RIGBY v SHELLHARBOUR CITY COUNCIL & ANOR JUDGMENT – On production of further report by Dr Bell (see p554) 1 HIS HONOUR: Dr Bell is a consulted psychiatrist qualified as an expert witness for the plaintiff. His original report dated was served on the defendants in accordance with the Rules and tendered in the plaintiff's case as part of Exhibit C. This morning he was called as witness and in cross-examination by Mr Joseph SC for the first defendant the following occurred: Q. Have you only ever prepared one report? A. One report – well, I have prepared another document recently. Q. Have you got that with you? A. I do. Q. Could you provide that to us please? 2 Mr Webb objected to production of that other document on the ground of client legal privilege, submitting that it was a confidential communication between Dr Bell and the plaintiff's lawyer made for the dominant purpose of the client being provided with professional legal services in relation to proceedings (Evidence Act 1995 s 119) and that there had been no waiver of the privilege within s 122. 3 In his original report, Dr Bell recommended that the plaintiff be psychometrically tested by one of three named psychologists and concluded by saying that he expected such testing to confirm the opinion he expressed. The plaintiff's solicitors then had her tested by one of those, Dr Arthur Shores, and the defendant's solicitors had her tested by Dr F Roldan. 4 I have inspected the document in question and it is a further report to the plaintiff's solicitors dated 29 September 2003 commenting on the reports of Dr Shores and Dr Roldan, and to a degree he relates the contents of those documents to the opinions he had earlier expressed. He does not in the document, express any opinion inconsistent with his earlier opinion but at times he uses the contents of those reports to confirm his earlier opinions. 5 There is one paragraph at the top of p6 under the heading "Comment" which contains advice to the plaintiff's lawyers as to the conduct of the case. 6 The defendants submit that the privilege has been waived by the tender of the doctor's earlier report and/or by the calling of the doctor to give evidence. They also rely on the provisions of Pt 36 r 13C of the Supreme Court Rules. 7 Mr Webb SC on behalf of the plaintiff, on the other hand, concedes that any privilege attaching to the first report was clearly waived by the tender of it in these proceedings, and that included the waiver of privilege in relation to any material required to produce that report; but he submits that the subsequent report of 29 September 2003 is a different document on a different topic, because it merely analyses the reports of Dr Shores and Dr Roldan relating to psychological testing, that it does not fall within the category of documents used to make up the first report and therefore has nothing to do with the first report. 8 I reject the submission that it has nothing to do with the first report. True it is that it is subsequent to the first report and cannot be said to have been used in the formulation of the first report, but it is clearly related to it as it follows up further enquiries suggested in the first report and in the first paragraph after referring to the reports of the 2 psychologists it states: "Taken together they provide complementary data which lead to the firm conclusion that the patient has a severe frontal syndrome rendering her unemployable and in need of supervision for the rest of her life. They serve to confirm the opinion I have provided you". 9 Dr Bell has been called as a witness. Once a witness he can be asked anything relating to the issues in the case. He can be asked, in particular, to comment on the psychometric testing carried out by the two psychologists and whether that testing affects his opinions and, if so, in what way. He can be asked anything relevant to the issues. He can be asked whether he has considered those reports, and whether he has expressed any other opinion. He cannot claim privilege for those opinions on the basis that they had been the subject of his report of 29 September 2003. 10 In other words, he can be asked about matters which form the content of that report and, in those circumstances, I do not see why the plaintiff cannot be required to produce the report itself. 11 In general terms, I would have thought that any privilege attaching to any material produced in any shape or form by Dr Bell in relation to the issues in the case, including any notes, he has made or anything he has written about the issues has been waived by the calling of him as a witness in the case. There is also the question of fairness. In Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation (No 2) [1981] Com LR 138 at 139, cited with approval in Sevic v Roarty (1998) 44 NSWLR 287 at 301, Mustill J said: "…where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have the opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question" 12 In General Accident Fire and Life Insurance Corp Ltd v Tanter [1984] 1 WLR 100 at 114-5, Hobhouse J summarised the principles in this regard. So far as is relevant for present purposes those principles included: "Sixth, by adducing evidence at a trial one does get involved in further waiver. The underlying principle is one of fairness in the conduct of the trial and does not go further than that… Eight…once evidence is adduced it gives rise to a right to cross-examine freely and fairly in regard to the transaction in respect of which the document is adduced or the evidence is called. The principle applies to the introduction of both documentary and oral evidence. Fairness requires that the opposite party shall be entitled to investigate by cross-examination the transaction and therefore be entitled to ask for and see documents that are relevant to that transaction". 13 The same motion of "fairness" was applied by the High Court in Attorney General (NT) v Maurice (1986) 161 CLR 475 esp at 497-8. 14 For these reasons, I am satisfied that privilege in respect of Dr Bell's further report of 29 September 2003 has been waived by the tender of his earlier report and the calling of Dr Bell as a witness. 15 I turn now to the provisions of the Rules. My attention was drawn to Pt 36 r 13A(2) where an "expert's report" is defined as a report containing the substance of the expert's evidence which the party serving the statement intends to adduce in chief at the trial, and it was submitted this document is not an "expert's report" within the Rules. But r 13C is not limited to "expert's reports". That rule defines an "expert witness" as including an expert engaged for the purpose of giving opinion evidence in proceedings or proposed proceedings. Dr Bell is clearly an "expert witness" within the meaning of that rule. 16 Rule 13C(3) provides that if an expert witness furnishes to the engaging party a supplementary report, "including" any report indicating that the witness has changed his or her opinion, then the engaging party must serve the supplementary report and the earlier report must not be used in the proceedings unless this is done. 17 Notwithstanding Mr Webb's submissions, I am satisfied that the word "including" does not limit the operation of the subrule to reports which have a negative impact on the earlier opinion; "it" is a word which does not limit the general provision in any way. 18 This report supplements the earlier report. It adds to the opinions expressed in the earlier report by relying on, and comparing, the material contained in the two psychologists' reports. Even though it does not indicate the witness has changed his opinion it does, in parts, suggest that the additional material which he has looked at has confirmed his earlier opinion. 19 I am therefore satisfied that the report does come within Pt 36 r 13C(3) and should have been served. This is a further reason why the defendants are entitled to access to the later report, and any privilege otherwise attaching to it must be regarded as waived. 20 What I have said so far does not apply to the first paragraph on page 6. That paragraph contains what could be described as advice as to how the plaintiff's lawyers might conduct the case on the relevant issues. SCR Pt 36 r 13C(2) provides that an expert's report shall not be admitted into evidence and oral evidence shall not be received from an expert witness unless such expert has acknowledged in writing, or otherwise; that he or she has read the Expert Witness Code of Conduct contained in Schedule K and agreed to be bound by it. Clauses 2, 3 and 4 of that Schedule are as follows: 2. An expert witness has an overriding duty to assist the Court impartially on matters relevant to the expert's expertise. 3. An expert witness' 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. 21 In his first report, Dr Bell certified that he had read and agreed to be bound by the Codes of Conduct required of expert witnesses by this and other Courts. The Rules and Schedule K does not simply require the expert to acknowledge the Code of Conduct but requires that the Code be observed by both the expert and by the lawyers involved in the case. Real and substantive compliance, and not mere lip service, is required. 22 Schedule K and clause 4 thereof in particular makes it clear that the expert witness' duty is to the Court and only to the Court, and that the expert witness is not to be an advocate for a party. 23 Mr Webb has submitted that it is absurd to say that parties cannot consult their expert to see how the evidence of the other side's experts may be attacked or qualified. This certainly has been the practice in this State over many years but, in my view, it is no longer to be the case. 24 It is one thing for the lawyers for a party to consult with, or receive advice from an expert witness as to any alleged inaccuracy, defect or inconsistency in the opinions or reasoning of another expert involved in the case, but in my opinion, to advise a party's lawyers how to attack or qualify the opinions of experts to be called on the other side particularly as to how the cross-examination could be conducted, is adopting in part the role of an advocate, and therefore the first paragraph on page 6 should not have been included in the report. 25 However, questions of fairness arise. I consider that, even though that paragraph should not have been included in the report, it would be highly prejudicial to the conduct of the plaintiff's case for the material contained therein to be disclosed to the defendants or their representatives. I therefore exclude from production to the defendants the first paragraph on page 6 of the report. It was submitted that I have no discretion to exclude production of part of a document in this way, and I doubt that s 135 can be relied on as that section applies to "evidence" and the contents of the subject paragraph could not be described as "evidence". However, s 26(b) gives the Court power to make such orders as it considers just in relation to the production and use of documents and things in connection with the questioning of witnesses, and I am satisfied that section confers the necessary power in the present case. 26 Accordingly, I order that Dr Bell's report of 29 September 2003, save and except the first paragraph on page 6, be produced and I grant access to the other parties in the case. A copy of the said report will be marked for identification 9. ********** Last Modified: 12/24/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.