In our article in July 2023, we examined the case of Enkelmann & Ors v Stewart & Anor [2023] QSC 111 in which a lawyer’s file note of a conversation with an expert witness on a legal matter was not protected by legal professional privilege and had to be disclosed.
The parties who were ordered to disclose the lawyers’ file note appealed that decision on two grounds and on 1 August 2023, the Court of Appeal handed down its decision in Enkelmann & Ors v Stewart & Anor [2023] QCA 155. (Spoiler alert: they were still required to disclose the file note.)
In this appeal, the parties sought a decision regarding disclosure obligations under the Uniform Civil Procedure Rules 1999 (“UCPR”). It is not a decision made under the Workers Compensation and Rehabilitation Act 2003, Personal Injuries Proceedings Act 2002 or Motor Accident Insurance Act 1994, so there is no specific analysis of disclosure obligations under those Acts.
First Ground of Appeal – Does rule 212(2) of the UCPR have the power to abrogate legal professional privilege?
As a starting point, documents produced by a lawyer for the dominant purpose of advising a client in litigation are protected by legal professional privilege.
The Court of Appeal had to consider whether the primary judge erred in construing rule 212(2) as abrogating the privilege protecting a lawyer’s file note of an opinion or summary of facts given by an expert.
The Court of Appeal held the effect of rule 212(2) is to “abrogate legal professional privilege that might otherwise entitle a party to refuse to disclose a statement or report of an expert“, which includes a statement/report taken by a lawyer or prepared by the expert and a draft statement/report.
However, the Court held that a lawyer’s file note of a conference with an expert, noting an expert’s opinion, is not a document consisting of a statement or report of an expert within the meaning of rule 212(2) of the UCPR.
Therefore, the note of the communication which was had for the purpose of obtaining confidential legal advice about the pending litigation would be the subject of a valid claim of legal professional privilege. That decision may have been different if the expert adopted the lawyer’s file note.
Second Ground of Appeal – Did the party waive privilege in the file note by their own conduct?
As mentioned in our July article, the party’s expert, Mr Giles gave evidence during cross-examination, and that was how the defendants discovered the existence of the file note evidencing Mr Giles’ oral opinion.
The Court of Appeal found that the conduct of Mr Giles in not referring in his report to his earlier oral opinion was not inconsistent with maintaining the confidentiality of the privileged communication, and the appellants (who were refusing disclosure) did not present an unfair, partial, or misleading case to the Court, to the prejudice of the respondents.
However, the Court of Appeal referred to the High Court decision in Osland v Secretary, Department of Justice (2008) 234 CLR 275 concerning the process for deciding whether privilege had been waived in a similar circumstance where the expert had given evidence in cross-examination.
The Court of Appeal considered the fact that Mr Giles had previously told the Court that he had considered the differences between the two other experts’ reports by way of “peer review” and that he had provided a “verbal opinion” about who should be preferred. He also stated that the appellants’ lawyers knew his opinion because he had expressed it verbally.
The Court noted that when Mr Giles was being cross-examined and was asked those questions, the appellants did not raise any claim of legal professional privilege, and “permitted” Mr Giles to give evidence of what he was asked by the appellants’ lawyers and what he said in reply. That is, the appellants had not asserted their claim for privilege when they had the opportunity when Mr Giles was giving evidence.
The Court of Appeal ruled that even if the appellants did not knowingly intend to waive their privilege, by allowing Mr Giles to give evidence of the conference with the appellants’ lawyers and failing to object to the respondents’ questions to Mr Giles, they acted inconsistently with maintaining the privilege and had impliedly waived privilege.
The Takeaway – Round two
If a solicitor’s file note of an expert opinion is privileged (and again we point out this case did not deal with the laws specifically relating to personal injuries claims in Queensland) appropriate action needs to be taken to assert privilege, or privilege may be waived.
