The NSW Supreme Court decision in Ghorbanzadeh v Western Sydney Local Health District [2023] NSWSC 1330 has confirmed that any written material created by a medico-legal expert in the course of providing a preliminary verbal opinion to instructing solicitors may also be required to be disclosed in subsequent court proceedings. This article provides a background on the case and explains the court's decision.
Background
The plaintiff commenced proceedings in the Supreme Court of NSW against the defendant in relation to injuries sustained during the birth of her child at Westmead Hospital on 16 September 2018.
The defendant's solicitors issued a letter of instruction to medico-legal expert Dr Vijay Roach – obstetrician and gynaecologist (Dr Roach) in September 2022. This letter of instruction provided various documents for his review and requested he be available to discuss his verbal opinion.
Dr Roach participated in a telephone conference to discuss his verbal opinion with the defendant's solicitors in early October 2022. Prior to the telephone conference, Dr Roach reviewed the material provided to him and prepared two pages of handwritten notes for discussion during that meeting.
Following the telephone conference, the defendant's solicitors sent a further letter of instruction to Dr Roach, enclosing the same documents and requesting his written report addressing six specific questions. Dr Roach subsequently prepared his report, dated 26 November 2022. This report was served on the plaintiff's solicitors on 14 December 2022.
Following service of the report, the plaintiff issued a subpoena to produce directed to Dr Roach seeking a copy of various documents relating to the preparation of his report. The defendant subsequently made a claim for legal professional privilege over a document produced by Dr Roach, being the handwritten two pages of notes he used to prepare for and discussed during the teleconference.
The plaintiff filed a Notice of Motion seeking access to the documents over which the defendant claimed privilege. The plaintiff submitted the subject document did not attract legal professional privilege and, if it did, it had been waived by the defendant.
Legal Professional Privilege
The central issue for determination as to whether legal professional privilege applied was whether the handwritten notes were to be considered a 'document' or 'a communication'. The plaintiff submitted it was 'no more than a piece of paper', while the defendant submitted its use 'for expressing a verbal opinion' by Dr Roach rendered it as being converted from a document to a communication.
Legal professional privilege attaches to communications exchanged between a client and their lawyer or a third party, such as a medical legal expert, and a lawyer, where the dominant purpose for the communication is the conduct of actual or anticipated legal proceedings.
Dr Roach provided an affidavit. His affidavit did not state that the document played no part in the formation of his written opinion. His Honour noted that in normal circumstances, when a party serves an expert report, the documents behind that report and in particular documents used in preparation of the expert report could not be the subject of a privilege claim.
The Court's decision
The Court concluded that Dr Roach's handwritten notes which were used as the basis for his verbal opinion provided to the defendant's solicitors were not a communication and therefore could not be the subject of a claim for legal professional privilege.
His Honour held that even if Dr Roach's handwritten notes could attract a claim for privilege, this privilege had been waived by the defendant. Orders were therefore made granting the plaintiff access to the handwritten document and requiring the defendant to pay the costs of the plaintiff's motion.
The decision points out that parties and experts should be mindful that any written material produced by an expert in preparation for providing a verbal opinion may be required to be disclosed in subsequent court proceedings, either on the basis that it simply cannot attract legal professional privilege, or any privilege may be waived due to the relevance of a final written report.
The decision further highlights that separating a request for a verbal opinion into a different letter of instruction from a subsequent request for a written report will not be sufficient to shield any material created in relation to the verbal opinion from normal disclosure obligations. You can read the full Judgment here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
