Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops
Pty Ltd (No 7)  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
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
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
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.
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.
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This article sets out the circumstances in which privilege for legal communications could be lost or waived.
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