Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32, 174 FCR 547; Buzzle Operations Pty Ltd v Apple Computer Australia Pty Ltd [2009] NSWSC 225, 74 NSWLR 469 followed.
Evidence
› Admissibility
› Exclusions: privileges
› Client legal privilege
› Loss of privilege
› Generally
› Where first defendant claimed client legal privilege over expert reports served on other parties pursuant to r 516(1) of the Supreme Court Rules
› Service of report on second defendant constituted waiver pursuant to s 122 of the Evidence Act.
Quick Take
1Finalised proofs of evidence and expert witness statements prepared for the purpose of service on opposing parties under r 516 of the Supreme Court Rules 2000 (Tas) are not 'confidential documents' within the meaning of s 117 of the Evidence Act 2000 (Tas), because their essential character is to disclose to opponents and the court the evidence a party proposes to lead, following ACCC v Cadbury Schweppes Pty Ltd [2009] FCAFC 32 and Buzzle Operations Pty Ltd v Apple Computer Australia Pty Ltd [2009] NSWSC 225.
2Service of an expert report on other parties pursuant to r 516(1) of the Supreme Court Rules 2000 (Tas) is a voluntary act — because the rule is only engaged upon a forensic choice to present expert evidence — and constitutes conduct inconsistent with maintaining client legal privilege under s 122(2) of the Evidence Act 2000 (Tas), preferring the approach in Cadbury Schweppes over the 'compulsion of law' reasoning in Akins v Abigroup Ltd (1998) 43 NSWLR 539.
3The question whether service under procedural rules is 'under compulsion of law' within s 122(5)(a)(iii) of the Evidence Act is undermined where the obligation to serve only arises from a party's own election to call the expert, distinguishing Dubbo City Council v Patrick Joseph Barrett [2003] NSWCA 267.
