BuildLaw Issue 39 April 2020 | Page 4

BuildLaw in Brief
Maintaining privilege in expert communications
A recent Victorian Supreme Court decision gives some guidance as to when, in Australia, an expert’s report will be admissible in evidence, and the extent to which lawyers may communicate with experts regarding the evidence they are preparing without compromising the admissibility of that evidence. This latter question is of great interest to lawyers; New South Wales Young Lawyers has created a guide devoted entirely to the briefing of experts.
While communication between a lawyer and expert is essential to the preparation of a useful expert’s report, that communication should be carefully managed. In particular, communication between a lawyer and expert that is regarded as impermissible may come out in discovery and weigh against the credibility of the report.
In the recent case of Finance & Guarantee Company Pty Ltd v Auswild (Expert Evidence Ruling) (Finance), the plaintiffs objected to the admissibility of an expert report on the grounds of lack of independence. The judgment formed part of proceedings in relation to an alleged breach of fiduciary and equitable duties by former directors of Preston Motors Group.
Riordan J held that a loss of independence was not established, and so the evidence was admissible.
The Judge referred to the NSW Young Lawyers’ Practitioner’s ‘Guide to Briefing Experts’ to support the proposition that detailed discussions between a lawyer and expert about material that could be made available to the expert for their report and the questions that the expert might be capable of addressing were to be expected. It would also not be inappropriate for a lawyer to discuss preliminary views early in the process.
To retain independence, it is important that a) the expert approach questions impartially, and b) the lawyer does not attempt to influence the expert’s opinion.
In addressing whether a lack of independence would render a report inadmissible, the Judge referred to Rush v Nationwide News Pty Ltd (No 5), where it was stated that an actual or perceived lack of independence, impartiality or objectivity of an expert witness goes to weight, not admissibility.
Finance confirms that while a lawyer may discuss extensively with an expert as they prepare their report, they must not attempt to influence the expert’s opinion. Doing so will not necessarily render the evidence inadmissible but will certainly militate against its credibility.