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

Tuesday, 7 May 2019

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

Introduction

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. 

Background

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—

     a.    document in relation to which there is a valid claim to privilege from disclosure; 
     b.    a document relevant only to credit; 
     c.    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.

2.  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. “…to 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. 

Significance

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.

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

i  http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/qld/consol_reg/ucpr1999305/
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