Australia: Casting a wide net: reports of experts who are not deployed may be discoverable in Qld

Last Updated: 17 May 2019

In this article, Bridgette Neill-White, Manager from our Brisbane office discusses a case which highlights when a statement or report from an expert requires disclosure.

Murphy & Ors v Gladstone Ports Corporation Ltd [2019] QSC 12


Murphy & Ors v Gladstone Ports Corporation Ltd considers the circumstances in which expert reports are disclosable under Uniform Civil Procedure Rules 1999 ('UCPR 1999')i which applies to civil proceedings in the Queensland Supreme Courts, District Courts and Magistrates Courts.

This judgment shows that r 212(2), which states that a "document consisting of a statement or report of an expert is not privileged from disclosure", applies to all expert reports and statements, regardless if they are draft or final copies, and regardless of whether the expert ultimately gives evidence.


Murphy & Ors (the 'plaintiffs') alleged negligence in the design and construction of the bund wall for the Fisherman's Landing Port Expansion and Western Basin Dredging and Disposal Project in Gladstone Harbour. This negligence was argued to have led to the bund wall failing and allowing contaminants materially decreasing the quality of the water in affected waters, causing the plaintiffs to suffer economic loss.

Gladstone Ports Corporation Ltd ('Gladstone' or 'the defendant') sought further discovery of documents from the plaintiffs. Specifically, Gladstone argued that the further amended statement of claim for the proceedings related to numerous technical issues and referred to several scientific studies, and that they should be entitled to discover whether any expert reports were obtained in relation to these issues and have access to them.

Justice Crow stated:

"There is a fair inference that expert evidence exists and it is held by the plaintiffs or their advisers...It is also plain that at common law, such expert advice is the proper subject of a claim for legal professional privilege and thus not disclosable." (emphasis added)

However, Gladstone argued that pursuant to r 212, it was entitled to disclosure of any expert reports prepared for possible use in litigation and that r 212(2) abrogates litigation privilege at common law.

The plaintiffs resisted this position, arguing that r 212(2) only operated once a potential expert is "deployed", and was limited to that expert's report and information relied upon.

Summary of arguments brought by the plaintiffs

An obligation to disclose an expert report in Queensland Supreme Court proceedings arises under r 212 which provides:

  1. The duty of disclosure does not apply to the following documents—
    1. document in relation to which there is a valid claim to privilege from disclosure;
    2. a document relevant only to credit;
    3. an additional copy of a document already disclosed, if it is reasonable to suppose the additional copy contains no change, obliteration or other mark or feature likely to affect the outcome of the proceeding.
  1. A document consisting of a statement or report of an expert is not privileged from disclosure.

The six arguments raised by the plaintiffs to support their position that this did not apply to experts who were not deployed are summarised as follows:

  1. R 212 affects a partial abrogation of legal professional privilege at common law, not a total abrogation. The plaintiff accepted there is limited abrogation of privilege regarding all reports of experts deployed, regardless if the reports have influenced their final report.
  2. "There is nothing in r 425, containing the definitions of 'expert' and 'report', which compels the conclusion that the legislature intended to completely abrogate the well-established principles of legal professional privilege in "non-deployed expert reports."
  3. The defendant's construction of r 212 would "render r 429 otiose".
  4. The plaintiffs argue that the primary obligation to disclose a report arises under r 429, that is once an expert is deployed, which is typically by delivering the report.
  5. " the extent the rationale for r 212 is that expert witnesses have an overriding duty to the court, the rationale is not always applicable to every person who has expertise and gives a statement or report to a lawyer for the purpose of litigation". The plaintiffs referred to r 426, containing the duty of experts, to support their submission.
  6. R 212 is consistent with the Court of Appeal's decision in Interchase ii. The plaintiffs also relied on Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board iii.

Summary of judgment

The comments made by Justice Crow in response to the arguments raised by the plaintiffs are summarised as follows:

  • A party's primary obligation to disclose a report arises under r 212. The aim of r 429 is to meet the aim of the UCPR set out in r 5, that is, efficient and inexpensive litigation. There is therefore no conflict or redundancy between the rules: r 212 requires the disclosure of all expert reports (relied upon or not), and r 429 ensures parties finalise their evidence at an early stage.
  • It is difficult to argue that r 212 should only apply to experts with a duty to the court, because of the "long-held view that 'partisan' expert reports are of no value to the court nor the parties to litigation".
  • R 426, which has an express limitation to a witness "giving evidence in the proceeding", does not limit the disclosure requirements of r 212(2).
  • R 212(2) ought to be confined to require disclosure of all reports and statements of an expert, regardless if they are draft or final copies.
  • The title of the document is irrelevant. The appropriate test is whether a document reflects the state of mind of the expert at the time it was prepared. If so, it is disclosable under r 212(2).
  • R 429A provides for supplementary reports if an expert's opinion in a report that has been disclosed (or is disclosable) changes in a material way.

Accordingly, the plaintiffs' argument that there was (and is) no requirement to disclose a document unless it is deployed was rejected. Justice Crow held that any expert report, including drafts, relevant to the dispute ought to be disclosed.


This case confirms the reasonably settled position that, for Queensland civil proceedings, r 212 requires disclosure of any report or statement of experts giving evidence, regardless if the document is draft or final.

However, shadow experts (or "consulting experts") are often appointed to advise one party during a dispute with the view that the expert is unlikely to provide evidence to the Court. Lawyers may also seek opinions from more than one expert and only submit the expert report which supports their case strategy most. In light of this case, reports prepared by shadow experts and other experts whose reports not deployed may be disclosable in accordance with r 212. This should be considered carefully in early litigation decisions regarding the engagement of any expert.


ii Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R141
iii Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2004] QSC 329

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
Norton Rose Fulbright Australia
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
Norton Rose Fulbright Australia
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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