The decision of the NSW Supreme Court in Ghorbanzadeh v Western Sydney Local Health District [2023] NSWSC 1330 highlights that any written material created by a medico-legal expert in the course of providing a verbal opinion may also need to be disclosed in court proceedings.
The court held that a handwritten note created by an expert obstetrician to be referred to when providing a verbal opinion was not a 'communication' to his instructing solicitor and as such, was not capable of attracting legal professional privilege. In any event, any privilege which might have attached to it was waived when the doctor’s final written report was disclosed.
This decision of the NSW Supreme Court is based on the common law position regarding the disclosure of expert reports and associated materials in NSW. When considering this decision, one must be cognisant that the law in other States may differ in relation to a party’s obligation to disclose expert evidence (for example in Queensland under the Uniform Civil Procedure Rules 1999 and the Personal Injury Proceedings Act 2002).
Key takeaways
- Written material created by an expert witness to refer to when they provide a verbal opinion to instructing solicitors may be required to be disclosed in court proceedings.
- Legal professional privilege attaches to communications (written and verbal) exchanged between a client and their lawyer or a third party (such as a medical expert) and a lawyer, where the dominant purpose for the communications is the conduct of actual or anticipated legal proceedings.
- At common law, a document that is not a communication cannot be the subject of a claim for privilege.
- A medical (or other) expert who separates a request for a verbal opinion into a different brief from a brief that requests a written report will not, without more, be sufficient to shield material created in relation to the verbal opinion from disclosure obligations.
The context
A claim for legal professional privilege may, in some circumstances, arise between a solicitor and a medico-legal expert. Generally, when a solicitor engages an expert for the purpose of giving evidence in litigation, documents generated and information recorded by the expert while forming an opinion are not subject to a claim of legal professional privilege. However, privilege may be claimed in relation to communications between the expert and the solicitor 'when such communication is made for the purpose of confidential use in the litigation.'1
The facts
Ms Lida Ghorbanzadeh (the plaintiff) brought proceedings against the Western Sydney Local Health District (the defendant) in relation to injuries allegedly caused during the delivery of her child at the Westmead Hospital.
On 19 September 2022, the defendant’s solicitors engaged Dr Vijay Roach to provide a verbal opinion regarding the defendant’s liability.2 Dr Roach prepared a 2-page handwritten document which he states was used 'as the basis for expressing my verbal opinion'3 to the defendant’s solicitors. Dr Roach provided this opinion via a telephone conversation on 4 October 2022.
On 14 October 2022, the defendant instructed Dr Roach to answer six questions in the form of a written report, which was produced by Dr Roach and served on the plaintiff’s solicitors on 14 December 2022.
The plaintiff subsequently issued a subpoena to Dr Roach requiring various documents, including the handwritten notes, to be produced. The defendant opposed access to the handwritten notes based on a claim for legal professional privilege.
The decision
It is not controversial that a document, unless it is a communication, cannot be the subject of a claim for privilege.4 The defendant submitted that, when Dr Roach provided his verbal opinion on 4 October 2022 and used the document as a basis for this, he effectively communicated the document to the defendant’s solicitors and rendered it a communication attracting legal professional privilege.5
Justice Elkaim considered whether the document ought to be considered a 'communication', and if so whether any legal professional privilege which might have attached had been waived.
Legal professional privilege
Justice Elkaim concluded that the document was not a communication. Justice Elkaim considered that there might have been scope for the document to have been converted into a communication if Dr Roach had stated, in his affidavit, that:
- I communicated my notes to Ms Smith; or
- I read out my notes to Ms Smith; or
- My notes stated (or described or summarised) my verbal opinion; or
- I told Ms Smith what was in my notes.6
However, in the absence of such a description of the use of the document, there was no evidence to suggest that the document was intended to be a means of communication with the defendant’s solicitor.7
Waiver of legal professional privilege
Justice Elkaim concluded that, even if the document could be categorised as a communication which attracted privilege, this privilege had been waived by the defendant.
Dr Roach emphasised that the report that was disclosed was an answer to six specific questions contained in a brief dated 14 October 2023, to be contrasted with the general discussion that had occurred on 4 October 2022.8 He did not say that the document had played no part in the formation of his opinion. In circumstances where the separate briefs for the verbal opinion and for the written report were identical, Justice Elkaim considered that there was 'an almost inevitable inference that the six questions encompassed, even if to a small degree, the contents of the document.'9
The outcome
The Court concluded that:
- Dr Roach’s handwritten notes which were used as the basis for his verbal opinion provided to the defendant were not a communication and could not be the subject of a claim for legal professional privilege.
- Even if Dr Roach’s handwritten notes could attract a claim for privilege, this privilege had been waived by the defendant.
Orders were made granting the plaintiff access to the handwritten document and requiring the defendant to pay the costs of the plaintiff’s motion.
The Implications
Parties and experts ought to be equally aware that any written material produced by an expert in preparation for providing a verbal opinion may be required to be disclosed in court proceedings, either on the basis that it simply cannot attract legal professional privilege, or any privilege may be waived due to its relevance to a final written report.
The decision also illustrates that separating a request for a verbal opinion into a different brief from a request for a written report will not, without more, be sufficient to shield material created in relation to the verbal opinion from disclosure obligations.
Parties ought to provide experts with clear instructions as to disclosure obligations that will attach to any material created by the expert in the course of responding to the brief.
Ghorbanzadeh v Western Sydney Local Health District [2023] NSWSC 1330
1 Ghorbanzadeh v Western Sydney Local Health District [2023] NSWSC 1330 [24] citing Interchase Corporation Limited (in liq.) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141 at 162.
2 Ghorbanzadeh v Western Sydney Local Health District [2023] NSWSC 1330 [11].
3 Ibid [14].
4 Ibid [26].
5 Ibid [27].
6 Ibid [30].
7 Ibid [33].
8 Ghorbanzadeh v Western Sydney Local Health District [2023] NSWSC 1330 [36].
9 Ibid [37].
