Opinionated – maintaining privilege in communications between lawyers and experts discussed in Finance Guarantee Company Pty Ltd v Auswild (Expert Evidence Ruling) [2019] VSC 665

The Supreme Court of Victoria recently handed down its decision in Finance Guarantee Company Pty Ltd v Auswild (Expert Evidence Ruling) [2019] VSC 665, which considered the extent to which privilege may be maintained in communications between lawyers and experts.

Background

The plaintiff (Finance & Guarantee) objected to the admissibility of the defendant’s (Auswild) expert report of Mr Silvia (Silvia’s Report) and to the admissibility of a joint expert report that contained, and relied upon, Mr Silvia’s opinions.

Finance and Guarantee submitted that the Silvia Report was entirely inadmissible on the basis it contained “repeated and egregious contraventions of his obligations of independence” there was “misleading conduct” and a “failure to disclose the basis of his opinion”.

Finance & Guarantee’s position

Finance and Guarantee relied on the evidence of Mr Silvia that since he was retained in 2013 he:

• “had been deeply involved in the assessment of the defences relied upon” by Auswild; and 
• had numerous meetings with lawyers, counsel and potential witnesses to discuss Finance & Guarantee’s expert report even before he was retained to give an opinion.

This included a total of 348 emails between Mr Silvia and his instructing solicitors (being 221 emails sent before he was retained to prepare the Silvia Report, 30 emails sent during the period where he was preparing the Silvia Report and 97 emails sent during the period which the parties were preparing for trial).

The Court’s decision

The Court rejected Finance & Guarantee’s submissions and held that this was not a case where it would be appropriate to exclude the Silvia Report. In doing so, the Court referred to clause 2 and 3(d), (e) and (h) of the Expert Witness Code of Conduct together with Brooking J’s reasoning in Phosphate Co-operative Co of Australia v Shears (No 3) [1989] VR 665, to find that the communications between the Mr Silvia and Auswild’s lawyers were for the purposes of correcting errors of fact, the formulations of appropriate questions and the identification of necessary materials.

After underscoring the importance of “carefully managing” communications between lawyers and an expert, Riordan J went on to note:

There is no obligation to disclose matters on which the opinion expressed in a report is not based. In fact, confidential oral or written communications between the lawyer acting for a client and an expert made for the dominant purpose of the client being provided with profession legal services relation to an anticipated or pending proceeding involving the client are privileged. Communications between lawyers, clients and experts are not prohibited and the expert is not required to disclose such communications unless the communications form a basis of an opinion ultimately expressed in the expert report….

What is critical is that the expert approaches consideration of the questions impartially; and there is no attempt by the lawyer to influence the expert’s opinion.

Finally, the Court highlighted that in complicated matters (as was the case here) it would be “unusual if detailed discussions had not occurred” prior to issuing a letter of instruction.

Takeaways

The Court’s decision highlights the importance of managing communications between lawyers and experts so as to ensure that the expert is able to comply with his or her obligations pursuant to the Expert Witness Code of Conduct. In doing so, if the lawyers for a party do not attempt to influence the expert’s independence or opinion, it will not be improper to communicate with the expert. If the communications do not infringe upon the expert’s independence, and the expert report adequately sets out the entire basis for the opinion given, there will be no waiver of privilege in those proper communications.

Angelo Germano

Liability Limited by a scheme approved under Professional Standards Legislation.

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