Notes of conference between medical expert and solicitor: Supplementary report?

Pierides v Monash Health [2017] VSC 326 followed an interlocutory application by a defendant for an unredacted copy of a file note of a conference between a solicitor and a medical expert.

The decision includes reference to particular aspects of Victorian court rules which are not uniform across Australia. However issues of legal professional privilege and waiver of privilege are also discussed.

At [65] the court noted that it is widely accepted that disclosure of an expert report will involve an implied waiver of privilege with respect to the brief of instructions and documents provided to the expert. In relation to file notes, the court appears to have accepted that the communications that are recorded in file notes must be examined to determine whether there is anything in those communications which influenced or underpinned the expert’s report and hence warranted disclosure (at [71]). See also [106].

More novel was an argument, accepted by the court, that the notes of a conference may constitute a supplementary report in certain circumstances, requiring service in that form or as a supplementary report.

  1. However, it is clear that either on 30 September 2016 or at another unknown time, a conference was held by Jamie’s current solicitors with Dr Harbord in relation to his earlier report of 13 March 2014.  The notes of this conference are in the same handwriting as the notes of the 30 September 2016 conference, although they start on a separate page and are headed by a the initials LW/CH, and a phone number, presumably Dr Harbord’s phone number.  The pages after the first page are numbered 2 through to 6, suggesting that this is a separate conference from the conference relating to the medical examination, even if it occurred on the same date.
  1. There is no supplementary report dealing with the matters addressed during that conference and no typed up notes of conference provided to Dr Harbord for him to adopt.
  1. It is clear in my view that these six pages of notes do constitute ‘a supplementary report’ pursuant to r 44.03(3) and, given that no formal supplementary report appears to have been sought in relation to this conference and signed notes of conference have not been provided, these notes should be signed by Mr Harbord or converted into a report and served on Monash Health.