An expert state of mind

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“…a draft report is disclosable if it reflects the expert’s state of mind at the time it was written”

We look at key lessons from Murphy & Ors v Gladstone Ports Corporation Ltd (2019) QSC 12

The Supreme Court of Queensland required the disclosure of expert advice relied upon by the plaintiffs in preparing their statement of claim. The disclosure was required even though the plaintiffs had not served a report from that expert.

The Court held disclosure of an expert’s advice may be required “whether [the report is] relied upon or not, whether deployed or not”.

What are the key takeaways?

The case highlights:

  • not only final reports but drafts and other statements of your experts may be discoverable
  • expert advice used to prepare pleadings may be discoverable, even if:
    • the expert’s opinion is not ‘deployed’ in the proceeding
    • the advice is not in the form of an expert’s report
  • any report prepared for “possible use in litigation” may be discoverable.

Note: readers should consider specific rules or practice directions that apply to draft experts’ reports in other jurisdictions.

Background

The plaintiffs in this case alleged negligence in the design of a bund wall, leading to water contamination and economic loss.

The statement of claim outlined various detailed technical issues. It was apparent to the defendant the plaintiffs had drafted the claim with the aid of an expert.

The defendant sought disclosure of the underlying advice, relying on Uniform Civil Procedures Rule (UCPR) 212(2). The rule states “[a] document consisting of a statement or report of an expert is not privileged from disclosure”. 

The plaintiffs argued the expert advice should not be disclosed because:

  • communications between a lawyer and a third party for the purpose of litigation are privileged
  • the implied waiver of privilege arising from reliance on an expert’s report applies at the time the expert’s report is first ‘deployed’
  • UCPR Rule 212(2) should be confined to only operate once an expert report has been deployed. 

Judgment

The Court:

  • rejected the plaintiffs’ argument, finding that under UCPR Rule 212(2) “intending to rely on a report” or “intending to deploy a report” are irrelevant when assessing whether an expert report needs to be disclosed
  • accepted the defendant’s claim that any report prepared for “possible use in litigation” may require disclosure.

In assessing whether a draft report is subject to disclosure, Crow J held:

  • disclosure is required when a statement or report “reflects the expert’s state of mind when it was written”
  • UCPR Rule 212(2) broadens the range of documents requiring disclosure by including “a document consisting of a statement or report of an expert”
  • the title of a report or document such as “draft statement/report” is irrelevant. The Court will look at whether a document reflects the state of mind of the expert as this may be indicative of the expert’s line of thinking and state of mind throughout the entire drafting process.

His Honour agreed with the judgment of Douglas J in Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board and ruled that “any expert report including drafts directly relevant to the issues in dispute on the pleadings” ought to be disclosed to the defendants.

How we can help

Our dispute advisory experts have extensive knowledge of litigation and alternative dispute resolution processes. We pride ourselves on providing reports and advice which convey complex technical issues in a manner suitable for Courts and understandable to those outside of our profession.

 

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