Ghorbanzadeh [2023] NSWSC 1330

Coffee and a Case Note

“Those notes aren’t privileged! Hand them over.”
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P sued D in relation to personal injuries P alleged at around the time they were giving birth. D, to oversimplify, was the hospital’s insurer: [7], [9]
D instructed an expert who produced a report.
P filed a NoM seeking access to a document produced by the expert in response to a subpoena, but over which D asserted legal professional privilege: [1], [9]
P said the document was not privileged or, if it was, privilege was waived: [6]
D had briefed the expert and invited the expert to initially provide a verbal opinion on 6 Qs. The expert gave evidence that during that conversation “(they) referred to.. 2 pages of handwritten notes (they) had prepared. (They) used them as the basis for expressing (their) verbal opinion to (D’s lawyer)”: [10] - [14]
These 2 pages constituted the document P sought and D asserted was privileged.
Privilege attaches to a *communication* not a document. D asserted the document was a communication: [20], [21]
Documents generated unilaterally by an expert in the course of forming an opinion do not attract privilege: [22]
Despite there being a “grey area”, privilege may be claimed in communication between the expert and solicitor if made for the confidential use in the litigation: [24]
A draft report, for example, is not a communication: [25]
It is for the party asserting privilege to prove privilege attaches to a document: [32]
Despite having prepared an affidavit on the topic there was no evidence that the document was intended to be a means of communication between expert and lawyer: [34]
Having so found, the Court did not need to consider the question of waiver. However - noting that disclosure of an expert’s report is an implied waiver of the instructions underpinning that report, and that there was no suggestion the document did not cover material that eventually formed part of the final report - the Court would have concluded privilege was waived: [34] - [37]
P was granted access to, and permitted to inspect, the document: [38]

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