Dr Angus Mackinnon v BHP Steel (AIS) Pty Limited & Anor [2004] NSWSC 1027

Dr Angus Mackinnon v BHP Steel (AIS) Pty Limited & Anor [2004] NSWSC 1027

The respondent served the two medical reports because of court directions and the Supreme Court Rules, so the disclosure was made under compulsion of law and did not waive client legal privilege over documents referred to in the reports. Mere references in the reports did not yet create unfairness requiring disclosure, because any such issue would arise only if and when the experts gave evidence and relied on or referred to those documents.

Jurisdiction
Australia
Judgment Date
28 October 2004
Procedural Posture
Appeal Concerning Access to Subpoenaed Documents and Claims of Client Legal Privilege in an Action for Damages for Psychiatric or Psychological Injury / Appeal Under Part 60 Rule 10 From a Decision of Master Harrison Dismissing an Appeal From Assistant Registrar Howe
Outcome
Appeal dismissed with costs.
Legal Topics
['waiver of Privilege' 'disclosure Under Compulsion of Law' 'service of Expert Medical Reports' 'subpoenas' 'expert Witness Reports']
['evidence' 'civil Procedure' 'client Legal Privilege'] ['waiver of Privilege' 'disclosure Under Compulsion of Law' 'service of Expert Medical Reports' 'subpoenas' 'expert Witness Reports']

Case Brief

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Procedural Posture

Appeal Concerning Access to Subpoenaed Documents and Claims of Client Legal Privilege in an Action for Damages for Psychiatric or Psychological Injury / Appeal Under Part 60 Rule 10 From a Decision of Master Harrison Dismissing an Appeal From Assistant Registrar Howe

Legal Issues

  1. 1 ['Whether service of privileged medical reports pursuant to court directions and Supreme Court Rules waived privilege over documents referred to in those reports.' 'Whether the service of the reports was a voluntary disclosure or disclosure under compulsion of law for the purposes of s 122 of the Evidence Act 1995.' 'Whether considerations of fairness required a finding that privilege over documents referred to in the reports had been waived before the experts gave evidence.']

Ratio Decidendi

The respondent served the two medical reports because of court directions and the Supreme Court Rules, so the disclosure was made under compulsion of law and did not waive client legal privilege over documents referred to in the reports. Mere references in the reports did not yet create unfairness requiring disclosure, because any such issue would arise only if and when the experts gave evidence and relied on or referred to those documents.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']