Actone Holdings Pty Ltd v Gridtek Pty Ltd [2012] NSWSC 991

Supreme Court New South Wales

Medium Neutral Citation: Actone Holdings Pty Ltd v Gridtek Pty Ltd [2012] NSWSC 991 Hearing dates: 23 August 2102 Decision date: 30 August 2012 Jurisdiction: Common Law Before: Harrison J Decision: The defendant's notice of motion filed 10 August 2012 is dismissed with costs. Catchwords: EVIDENCE - client legal privilege - waiver of privilege - where service of expert's report refers to report of another expert whose report is not served - whether privilege waived by the plaintiff - privilege not waived Legislation Cited: Civil Procedure Act 2005 Evidence Act 1995 Cases Cited: Akins and Others v Abigroup Ltd [1998] NSWCA 8; (1998) 43 NSWLR 539 Gillies v Downer EDI Ltd [2010] NSWSC 1323 New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 Sevic v Roarty (1998) 44 NSWLR 287 Category: Procedural and other rulings Parties: Actone Holdings Pty Ltd (Plaintiff) Gridtek Pty Ltd (in liquidation) (Defendant) Representation: R O'Keefe (Plaintiff) D M Loewenstein (Defendant) Vardanega Roberts (Plaintiff) Hunt and Hunt (Defendant) File Number(s): 2007/265199

Judgment 1HARRISON J: The defendant seeks an order that the plaintiff provide it with a copy of an expert's report prepared by the late Dr K A Walshe in February 2002. The plaintiff opposes the order upon the basis that the report is a privileged document and that the privilege has not been waived.

Background 2The circumstances that give rise to the claim are uncontroversial. They are as follows. In October 2001 a fire destroyed or damaged part of a shopping complex at St Ives in Sydney. The plaintiff has sued the defendant alleging that it negligently caused the fire. The defendant disputes that claim. Experts have been marshalled by both sides proffering opinions about that issue. Directions for the service of reports were made by consent on 8 February 2008 in accordance with which the plaintiff was required to serve expert evidence by 16 July 2008. That was later extended by consent to 19 December 2008 and then to 29 May 2009. Finally, a consent order was made requiring the plaintiff to serve its expert evidence by 18 September 2009. The plaintiff would appear to have served at least some of the following reports in accordance with those directions: (a) Dr Colin Grantham dated 3 September 2009 - served 16 September 2009. (b) Dr Colin Grantham dated 25 June 2012 - served 3 July 2012. (c) Mr David Plaister dated 1 July 2009 - served 6 July 2009. (d) Mr David Plaister dated 29 November 2009 - served 9 December 2009. (e) Mr David Plaister dated 6 August 2012 - served 8 August 2012. 3Dr Grantham and Mr Plaister refer to Dr Walshe's report in some, but not all, of their reports. It is important to record the terms of these references. 4In his 3 September 2009 report, Dr Grantham says this at paragraphs 17, 18 and 25: "WALSHE AND ASSOCIATES REPORT 17 The report of the late K A Walshe dated February 2002, at page 7 states as follows: 'Given the problems in the News Agency, including a fresh occurrence of flickering lights on the morning of the fire, I am of the opinion that water ingress into a light fitting junction box in the ceiling space of the News Agency caused a low level electrical fault either to ground or to neutral, heating associated with this leakage current caused insulation material to ignite, fire flowing along the cables to the top of the cable duct from were [sic, where] burning plastic carried the fire down to the main switchboard below'. 18 Whilst I agree that water ingress most probably initiated an electrical fault I do not believe the fire started in the ceiling space of the News Agency... ***** 25 Despite the electrician's assurance it would appear that everything was not OK because the fire started shortly afterwards. As stated at lines 131-132 of the Walshe and Associates report, the electrician should have carried out an insulation resistance test on the electrical installation." 5In his 25 June 2009 report, Dr Grantham says this at paragraph 6: "ANSWERS TO QUESTIONS Dr Walshe's Report 6 I did not rely upon the contents of any of the late Dr Walshe's report in forming my opinion on the cause of the fire. I restate Conclusions (d) and (e) of my report dated 29 October 2009 as follows: (d) There was electrical arc evidence at the cable entry area at the right hand side of the enclosure and also burnt insulation on the cables above the right hand side of the enclosure to suggest that the fire started at, or towards, the right side of the switch enclosure. (e) Fire damage above the switch enclosure, although severe, was restricted to a relatively narrow band directly above the switch enclosure. This, in my opinion, is clear evidence that the fire had spread from the switch enclosure, where it started, to the area above." 6Mr Plaister referred to Dr Walshe's report in his report dated 1 July 2009 as follows: "20 I refer to the report of Dr K A Walshe February 2002 Item 5.2 Circumstance of the Fire and note the following: In the days prior to the fire, high winds and rain had caused water ingress into the ceiling space above the News Agency resulting in electrical problems. The News Agency proprietor had reported this to the site manager who had in turn arranged for an 'electrician' to attend the News Agency to fix things up... After the repairs, the News Agency proprietor noted voltage flicker on circuits in his shop." 7The evidence also reveals that Dr Grantham relied on a letter of instruction from the plaintiff's solicitor when preparing his 3 September 2009 report. The letter of instruction from the plaintiff's solicitors to Dr Grantham dated 18 May 2009 included the following: "We confirm that Dr Grantham has been provided with the following annexures: (a)... (b) Copy of report of the late Dr Walshe dated February 2002 and annexures thereto..." 8Dr Grantham recorded the following acknowledgment at paragraph 9 of his 3 September 2009 report: "DOCUMENTS PROVIDED 9 To help with the preparation of this report I have been supplied with the documents listed in the Vardanega Roberts letter of instruction dated 18 May 2009, which is included at Appendix A." 9At paragraph 37 of his 3 September 2009 report Dr Grantham acknowledged that his conclusions were based in part upon "the additional information" that had been provided to him. 10In contrast, Dr Grantham says at paragraph 6 of his 25 June 2009 report that he "did not rely upon any of the contents of the late Dr Walshe's report in forming [his] opinion on the cause of the fire". It should be observed, however, that Dr Grantham's report was not served upon the defendant until after the plaintiff had been requested to provide a copy of Dr Walshe's report. It is conceded that Dr Grantham's reference to the use he made of Dr Walshe's report was inspired by the defendant's request.