Where an engagement letter retaining an expert is held to be privileged under s 119 of the Evidence Act 1995 (NSW), the court may infer that the report prepared in response to that letter is also privileged, without requiring separate direct evidence of the dominant purpose for the report itself. Disclosure of a privileged expert report to a prospective litigation funder does not waive privilege where the funder is under an obligation of confidentiality, as the disclosure falls within s 122(5)(a)(i) as a confidential communication. Implied waiver of privilege requires reliance on the contents of the privileged document; mere reference to the existence of a document or class of documents in affidavit evidence is insufficient.
The full text is available to signed-in members, including the 37 later cases that cite this judgment.
1 of the 37 citing cases carry a classified treatment. How each court treated it is available to signed-in members.