Australia: Expert witnesses, communications and legal professional privilege

In brief - Supreme Court decision in Sprayworx v Homag provides further guidance

The Supreme Court of NSW recently held that privilege in a communication will not be waived or lost if the communication has not influenced the content of an expert witness's final report.

Communications between expert witnesses and their instructing solicitors

In New South Wales, communications between an expert witness and their instructing solicitors are, as a general rule, not discoverable on the grounds of privilege. However there are significant exceptions to that rule.

The Supreme Court has recently given some further guidance on this difficult subject. In a recent case, Sprayworx Pty Ltd v Homag Pty Ltd [2014] NSWSC 833, the court decided that privilege in a communication will not be waived or lost if the communication has not influenced the content of the expert's final report, or may have influenced it but in relation only to form or peripheral matters.

In determining the issue, the court inspected the communications to gauge whether, and to what extent, the report was influenced. Note that very different rules apply in other jurisdictions.

Proceedings for supply of allegedly defective sanding machine

On 8 July 2006, Mr Nelson Pinto and Mr George Kanios of Sprayworx Pty Ltd entered into a contract with Homag Australia to purchase a Buetfering Optimat SCO313/QCH Diamond Wide Belt Sanding Machine ("Machine") for $223,600 plus GST.

Sprayworx commenced proceedings in the Supreme Court of NSW, alleging that Homag supplied it with a defective Machine and seeking damages. Sprayworx's case is supported by the expert reports of Professor Farhad Shafaghi, engineer, dated 15 July 2013 and Mr Chris Katehos, forensic accountant, dated 24 July 2013.

Homag denies liability and alleges that Sprayworx's employees did not operate the Machine properly.

Notice to produce expert drafts and communications with instructing solicitors

On 25 November 2013, Homag served a notice to produce ("Notice") on Sprayworx, Mr Pinto and Mr Kanios seeking documents in four broad categories. Categories 1 and 2 sought draft reports prepared by Sprayworx's experts and categories 3 and 4 sought communications between the two experts and Sprayworx or their solicitors.

List of privileged documents provided in response to Notice

In response to Homag's Notice, Sprayworx served a list of documents outlining the documents that Sprayworx did not intend to produce on the grounds of privilege.

Homag accepted that the documents it sought were the subject of client legal privilege, that is, the documents had been produced for the dominant purpose of providing legal services to Sprayworx which, pursuant to the Evidence Act 1995 (NSW), is not required to be given to the other party in the proceedings. However, Homag argued that, amongst other things, Sprayworx had waived its client legal privilege because the documents had been used in such a way that it could be said to have influenced the content of the expert reports.

The parties agreed that the Supreme Court could inspect the documents within that list to consider whether a document has influenced the contents of the report in a way that requires disclosure.

Communications did not influence the content of the report and therefore did not waive privilege

After carefully examining the solicitor's comments in the solicitor's correspondence and the corresponding paragraphs in Professor Shafaghi's draft reports and final report, Associate Justice Harrison concluded that the solicitor's comments could not be said to have influenced the content of the report in such a way that the use or service of the report would be inconsistent with maintaining the privilege in those materials.

By this her Honour means that although the solicitor's comments asked Professor Shafaghi to makes changes where he believed they were warranted, it did not affect the substance of his final report.

Her Honour arrived at essentially the same conclusion when looking at Mr Katehos' report and relevant correspondence.

Expert reports and legal professional privilege

Sprayworx v Homag provides a timely reminder of the delicacies of engaging expert witnesses. Here are a few key tips to keep in mind in relation to expert reports.

  • Expert reports should be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
  • Experts are entitled to change their mind and should not be inhibited by fear of exposure of a draft report. However, working notes, file notes and draft reports do not attract privilege because they are not communications.
  • Disclosure of the expert's report for the purpose of reliance on it in the litigation will ordinarily result in an implied waiver of the privilege in respect of the brief and the documents referred to therein.
  • Privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came about the document.

Desirable characteristics of expert reports

Expert reports should:

  • provide objective unbiased opinion in relation to matters within their expertise
  • state the facts, assumptions and materials upon which their opinion is based
  • make it clear when a particular question or issue falls outside their expertise
  • state instances where there is insufficient data to reach a conclusion properly
  • provide photographs, plans, calculations, analyses, measurements, survey reports or other similar documents to the opposite party at the same time as the exchange of reports

For more information:

Faith Laube
Commercial litigation
CBP Lawyers

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions