Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 7) [2008] FCA 323

  • Service of expert report alone does not waive privilege over earlier correspondence with legal representatives and drafts.
  • The relevant test is whether the expert report can completely or thoroughly understood without reference to the privileged documents.

Often in litigation opposing parties attempt to get access to correspondence between experts and their instructing lawyers and the experts' draft reports in an attempt to find material useful for cross-examination.

This judgment arose out of a subpoena served by Cadbury upon one of Darrell Lea's expert witness seeking production of documents relating to communications between the expert and Cadbury's lawyers in relation to the proceedings and the expert's evidence.

Cadbury resisted production relying on section 119(b) of the Evidence Act 1995 (Cth) which provides that evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of the contents of a confidential document (whether delivered or not) that was prepared for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

Darrell Lea did not dispute this proposition but relied on waiver and section 122(2) of the Evidence Act saying that by serving the expert's report Cadbury had waived privilege.

The court disagreed with Darrell Lea and Justice Heerey took the opportunity of clarifying the law in light of a number of conflicting past decisions.

In his opinion, service and tender of an expert witness' report in proceedings does not necessarily constitute a waiver of the privilege in associated documents except if those associated documents were reasonably necessary to an understanding of the report. This will likely be the case if the primary document contains a summary or excerpt from an earlier communication, or responds to questions which are not themselves restated in it.

Justice Heerey said: "The test is concerned with the comprehensibility of the primary communication or document: if it can be completely or thoroughly understood without more, then access to the related communications or documents is not reasonably necessary."

In the result, Darrell Lea was not been able to point to any particular part of the expert's report which required some further document to enable the report to be understood or to resolve any uncertainty or ambiguity or confusion in it.

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