Thursday, February 24, 2011

Privilege, expert witnesses and the Evidence Act 2008 (Vic)

In Roads Corporation v Love [2010] VSC 253 (Love) the Supreme Court of Victoria considered the circumstances in which privilege is wavied when a party communicates with expert witnesses in conference.

In Love, counsel for the applicant sought at the trial to cross examine an expert witness on a document, being an 'agenda' which was prepared for a 2006 conference between the respondent, the expert witness, other expert witnesses and the respondent's lawyers. The 'agenda' suggested that the 2006 conference was called for the purpose of getting the expert witnesses to agree on a crucial issue in the trial. The applicant sought to adduce evidence of what was discussed at this 2006 conference. The applicant also sought to tender several documents relating to a 2004 conference with another expert witness. Both experts were called to give evidence at the trial on behalf of the respondent.

The respondent claimed litigation privilege under s119(a) Evidence Act 2008 and the applicant claimed waiver of the privilege under s122 Evidence Act 2008. The Court reviewed the authorities in relation to expert witnesses noting that, as a fundamental principle, when a witness is called in order to provide expert opinion evidence all of the facts and instructions upon which that witness bases the expert opinion are admissible and subject to production.

Vickery J held that privilege in relation to the communications was waived (under s122). 

Firstly, His Honour said that there was a waiver of privilege by calling the expert witnesses at the trial, for the following reasons:

  • By calling the expert witnesses who were present in the meeting as witnesses in the trial, the respondent was acting in a way inconsistent with the privilege he was seeking to protect.
  • It would be unfair to the applicant and contrary to the interests of justice to insulate the relevant witnesses from a full examination of all of the information which they took into account and the various influences to which they were exposed in the preparation of their evidence.
Secondly, His Honour said that there was imputed waiver when the 2006 conference was held, for the following reasons:
  • The 2006 conference which was convened for the purpose of ensuring a 'common line' was improper. It was improper because the respondent compromised the overriding duty of the expert to provide independent assistance to the court on matters relevant to their area of expertise.
  • Because the meeting was improper, to give effect to the privilege would inevitably and further compromise the trial of some of the issues.
  • The interests in disclosure therefore prevailed over legal professional privilege.
The case also serves as a caution to ensure that each witness (either expert of lay) is interviewed separately and that each witness is cautioned to not discuss their evidence with other witnesses. If the impartiality of a witness is impugned then this seriously undermines the credibility of that witness.

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