Roach & Ors v Page & Ors (No.17) [2003] NSWSC 973

Roach & Ors v Page & Ors (No.17) [2003] NSWSC 973

Although an expert witness must assist the Court impartially, communications between a party's legal representatives and a prospective expert witness are predominantly for the purpose of assisting the party by bringing forward expert evidence in aid of that party. The expert witness code and s119 do not clearly abrogate the common law privilege for communications with potential witnesses. The fact that the documents related to communications between the defendants' legal representatives and a prospective expert witness therefore did not negate legal professional privilege.

Jurisdiction
Australia
Judgment Date
28 October 2003
Procedural Posture
Common Law Division, Professional Negligence List; Evidence Ruling on Legal Professional Privilege / Challenge by the Plaintiffs to the Defendants' Claim of Legal Professional Privilege Over Documents Produced in Court Under Subpoena
Outcome
The plaintiffs' challenge failed; the defendants' claim for legal professional privilege was not negated by the description of the documents as communications with a prospective expert witness.
Legal Topics
['legal Professional Privilege Over Communications With a Prospective Expert Witness' 'subpoena Production of Documents' 'dominant Purpose Test' 'expert Witness Code of Conduct']
['evidence' 'civil Procedure' 'legal Professional Privilege'] ['legal Professional Privilege Over Communications With a Prospective Expert Witness' 'subpoena Production of Documents' 'dominant Purpose Test' 'expert Witness Code of Conduct']

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Procedural Posture

Common Law Division, Professional Negligence List; Evidence Ruling on Legal Professional Privilege / Challenge by the Plaintiffs to the Defendants' Claim of Legal Professional Privilege Over Documents Produced in Court Under Subpoena

Legal Issues

  1. 1 ["Whether communications or notes of communications between the defendants' legal representatives and an expert witness to be called in the defendants' case were excluded from legal professional privilege because of the expert witness duties in Pt 36 r 13C and Schedule K." 'Whether the dominant purpose of communications with an expert witness is to assist the court rather than to provide the client with professional legal services relating to proceedings.']

Ratio Decidendi

Although an expert witness must assist the Court impartially, communications between a party's legal representatives and a prospective expert witness are predominantly for the purpose of assisting the party by bringing forward expert evidence in aid of that party. The expert witness code and s119 do not clearly abrogate the common law privilege for communications with potential witnesses. The fact that the documents related to communications between the defendants' legal representatives and a prospective expert witness therefore did not negate legal professional privilege.

Court Disposition

The plaintiffs' challenge failed; the defendants' claim for legal professional privilege was not negated by the description of the documents as communications with a prospective expert witness.

Orders

  • ['The claim for privilege was not negated by the description of the documents.']