Bond and Flanagan JJA and Bradley J
Summary
The Queensland Court of Appeal examined whether solicitor’s file notes recording the oral opinion of an expert were exempted from legal professional privilege under Rule 212(2) of the Uniform Civil Procedure Rules 1999 (UCPR), and whether privilege had been waived by the appellants’ conduct.
Key Issue
Whether a solicitor’s file note recording the oral opinion of an expert was a “document consisting of a statement or report of an expert” within the meaning of r 212(2) of the UCPR, and if not, whether privilege over the file notes had been waived by the appellants’ conduct.
Background Facts
At the primary hearing, the plaintiffs (appellants) initiated nuisance and negligence claims against the defendants (respondents), alleging that work on the defendants’ land caused flooding affecting the plaintiffs’ property.
During the litigation, both sides retained hydrology experts who used different approaches and methodologies, resulting in conflicting reports. The plaintiffs later engaged a third expert, Mr Giles, to peer review and comment on the competing expert reports.
Prior to receiving formal instructions, the plaintiff’s solicitors and counsel held an online conference with Mr Giles in October 2021, at which he discussed his ‘initial feelings’ about the relative strengths of the written reports. The order requiring disclosure of the solicitor’s file notes of the conference was the subject of the appeal. Mr Giles’s instructions, however, were later changed and instead of a written peer review, Mr Giles was instructed to prepare a report for the Court. Mr Giles’ tendered report did not reference Mr Giles’ initial opinion.
The defendants sought disclosure of the plaintiff’s solicitor’s file notes recording the initial opinion expressed by Mr Giles orally at the conference. The plaintiffs resisted disclosure asserting legal professional privilege over the notes.
At first instance, Justice Williams held that the file notes fell within r 212(2), reasoning that the abrogation of privilege extended to a solicitor’s file notes recording an expert’s opinion on the basis that there was “no limitation in that rule that the actual document itself needs to emanate from the expert”[1]. In the alternative, her Honour held that if the file notes were privileged, the plaintiffs had waived that privilege, having regard to considerations of fairness, particularly that Mr Giles’ oral initial opinion likely formed the basis for his subsequent written report.[2]
Issue on Appeal
The Queensland Court of Appeal addressed three questions:
Did the primary judge err in construing r 212(2) as abrogating privilege over a solicitor’s file note recording an expert’s opinion given in conference?
If privilege applies, was it nonetheless waived by the appellants through their pre-trial conduct?
(By notice of contention) Did the appellants waive privilege by failing to object during the cross-examination of Mr Giles?
Decision
The plaintiffs appealed the order requiring them to disclose the file notes, on the basis that the file note was “brought into existence for the dominant purpose of providing confidential legal advice or for use in pending legal proceedings”, as established by Esso Australia v Federal Commissioner of Taxation[3], while the respondents submitted that r 212(2) abrogated the appellants’ right to protect the file notes from disclosure, and in any case that the appellants had waived the right to legal professional privilege.[4]
The Court of Appeal held that the primary judge erred in her construction of r 212(2). The words “consisting of” do not extend the scope of r 212(2) to abrogate privilege in respect of a document that is neither a statement nor a report of an expert. Following the approach in Cockerill v Collins[5] and Interchase[6], the Court held that r 212(2) operates as a limited exception to legal professional privilege, which does not abrogate privilege over a solicitor’s file note recording an expert’s oral opinion.[7]
At paragraph 22:
“ … A solicitor’s file note of a conference with an expert, noting or reporting an opinion expressed by the expert at the conference, is not a document consisting of a statement or report of an expert, within the meaning of r 212(2). Nor are any parts of the note that refer to the expert’s opinion.”
At paragraph 26:
“ … It is not a statement or report of an expert, within the ordinary meanings of the words.”
However, the Court of Appeal rejected the primary judge’s finding that the appellants had waived privilege through their pre-trial conduct. Although Mr Giles did not refer to his earlier oral opinion in the report tendered to the Court, that omission was not inconsistent with maintaining the confidentiality of the privileged communication. Following the approach to waiver of privilege in Watkins v State of Queensland[8], the Court held that the appellants’ conduct did not amount to a waiver of privilege.[9]
In the appeal, the respondents had filed a notice of contention that the primary judge’s decision that privilege had been waived by the appellants should be affirmed on the basis that Mr Giles had been cross-examined regarding the circumstances surrounding the initial verbal opinion and the creation of the report tendered. The Court of Appeal held that the appellants’ counsel failed to object or to otherwise assert privilege during the cross-examination of Mr Giles regarding his initial verbal opinion and the preparation of his report. By permitting Mr Giles to give this evidence without objection, the appellants impliedly waived privilege over any contemporaneous file note, and the respondents were entitled to test Mr Giles’ evidence against it.
The appeal was dismissed with costs.
Implications
- Solicitor file notes of an expert’s oral opinion are not automatically disclosable as “statements or reports” of an expert under r 212(2) of the UCPR. Privilege may apply where such notes were prepared for the dominant purpose of providing legal advice or for use in anticipated or pending litigation, as reaffirmed by the Court.
- The scope of r 212(2) is confined to documents that are themselves statements or reports of an expert, including drafts, whether prepared by the expert or by a solicitor. It does not extend to a solicitor’s own notes of an expert’s oral opinion.
- Failing to object or otherwise assert privilege when privileged content is disclosed, especially in cross-examination, can result in an implied waiving of privilege, even if unintentional.
- Where privilege has been waived by the disclosure of privileged communications in evidence, courts will require production of contemporaneous documents such as file notes so that the evidence may be tested against them.
[1]: Enkelmann & Ors v Stewart & Anor [2023] QSC 111, 9 [65]-[68].
[2]: Enkelmann & Ors v Stewart & Anor [2023] QSC 111, 10-11 [76]-[78].
[3]: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, 22 [61] (Gleeson CJ, Gaudron and Gummow JJ), 62 [173] (Callinan J).
[4]: Enkelmann & Ors v Stewart & Anor [2023] QCA 155, 4-5 [13].
[5]: Cockerill v Collins [1999] 2 Qd R 26, 30 (McPherson JA).
[6]: Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd [No 1] [1999] 1 QD R 141, 151-153 (Pincus JA), 159 (Thomas J, as his Honour then was).
[7]: Enkelmann & Ors v Stewart & Anor [2023] QCA 155, 6 [23], 8 [30].
[8]: Watkins v State of Queensland [2008] 1 Qd R 564, 590 [55] (Keane JA).
[9]: Enkelmann & Ors v Stewart & Anor [2023] QCA 155, 8-9 [30]-[33].