Ghorbanzadeh v Western Sydney Local Health District  NSWSC 1330
In this case, the court considered whether handwritten notes made by an expert which he subsequently referred to in a telephone conference with his instructing solicitor to discuss his verbal opinion, constituted a privileged communication.
The plaintiff gave birth to a child in September 2018. She alleged that the method by which she gave birth caused her injuries.
The plaintiff alleged that her injuries would have been avoided had the birth been by caesarean section. She claimed that the hospital was negligent in failing to advise her to give birth by caesarean section and in failing to perform this operation.
The hospital, by its staff, had specifically declined a request from the plaintiff for the caesarean section surgery to be performed.
In September 2022, the defendant’s solicitors instructed Dr R, a medico-legal expert, via letter together with hospital records, the statement of claim, and the report of the expert retained by the plaintiff. Dr R was instructed to review the brief of materials and then discuss his verbal opinion with the instructing solicitor.
After Dr R received the letter of instruction and brief of materials, he composed two pages of handwritten notes (the document). He then had a telephone conference with the defendant’s solicitor on 4 October 2022. Dr R referred to the document in this conference. The defendant’s solicitor subsequently gave written legal advice to her client, an insurer, with the information she had gleaned from the telephone conference.
On 14 October 2022, Dr R was instructed to prepare a written report. The report was written on 26 November 2022 and was served on the plaintiff’s solicitors on 14 December 2022.
On 20 December 2022, the plaintiff issued a subpoena to produce to Dr R. Following inspection of the document by the defendant, a claim for privilege was made.
The plaintiff submitted that the document was no more than a “piece of paper.”
The defendant asserted that they had converted the document into a communication, because Dr R stated that he used the document in question as the basis for expressing his verbal opinion to the defendant’s solicitor.
The court was required to determine whether or not the document had been communicated to the defendant’s solicitor.
At common law, a document that is not a communication cannot be the subject of a claim for privilege (Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501. Elkaim AJ ruled that the document was not a communication, but merely a working note on which Dr R’s discussion or opinion may have been based. 
The court emphasised what Barrett J said in Ryder v Frohlich  NSWSC 1342 at :
The point made here is that privilege can only attach to documents which embody communication between the expert and the litigant by whom the expert is retained (or the litigant’s lawyer). A draft report prepared by the expert is not, of its nature, such a communication. It may be that the draft report is, in fact, given or sent by the expert to the litigant or the litigant’s lawyer, but that does not change its character as something prepared by the expert which is not intended to be a means of communication with the litigant or lawyer.
While it was not necessary to consider the issue of waiver, Elkaim AJ would have concluded that privilege was waived, based on Australian Securities & Investments Commission v Southcorp Ltd  FCA 804 in which Lindgren J stated (at [21(3)]:
Ordinarily disclosure of the expert’s report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents.
The court noted what Dr R did not say in his affidavit – that the document played no part in the formation of his opinion. While the report Dr R ultimately produced was an answer to six specific questions, in contrast to the discussion during the telephone conference, there is nothing to say that the six questions did not cover material that was contained in the document. [36-37]
The court concluded that the material sent to Dr R before the telephone call was exactly the same material sent to him when he was instructed to prepare a report, so it is almost inevitable that the six questions encompassed the contents of the document, even if to a small degree. 
Based on these reasons, the court ordered that the plaintiff be granted access and permitted to inspect documents produced by Dr R, in response to the subpoena to produce over which the defendant has claimed privilege. 
- Normally, once served, the expert report and the materials behind it, cannot be the subject of a claim for privilege.
- Asserting that a unilateral document produced by an expert is privileged because it formed the basis of the expert expressing their verbal opinion to their instructing solicitor will not convert that document into a “communication” for the purposes of legal professional privilege.
- Experts and lawyers should be mindful that unilateral documents, including handwritten notes, created by an expert are generally not intended to be a means of communication between the expert and their instructing solicitor and will therefore not attract legal professional privilege.
Read the full decision here.