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Felgate v Tucker

 

[2011] QCA 194

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Felgate v Tucker [2011] QCA 194

PARTIES:

WENDY FELGATE
(appellant)
v
PAUL TUCKER
(respondent)

FILE NO/S:

Appeal No 10823 of 2010

SC No 9161 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 August 2011

DELIVERED AT:

Brisbane 

HEARING DATE:

17 March 2011

JUDGES:

Margaret McMurdo P, Fraser and White JJA

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – LEGAL PROFESSIONAL PRIVILEGE – WAIVER OF PRIVILEGE – where the appellant sought damages from the respondent for personal injuries under the Personal Injuries Proceedings Act 2002 (Qld) after experiencing surgical awareness – where during a compulsory conference the respondent disclosed a document which was based on a statement provided by the respondent to his lawyers – the appellant sought disclosure of the statement – where the respondent claimed legal professional privilege – whether the Personal Injuries Proceedings Act 2002 (Qld) required disclosure – whether the respondent waived legal professional privilege when the document was produced at the compulsory conference

Personal Injuries Proceedings Act 2002 (Qld), s 4, s 9, s 9A, s 10, s 11 s 20, s 21, s 22, s 27, s 30

Allen v State of Queensland [2010] QSC 442, distinguished

Attorney-General (NT) v Maurice (1986) 161 CLR 475; [1986] HCA 80, considered

Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39, cited

Cockerill v Collins [1999] 2 Qd R 26; [1998] QCA 76, cited

Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67, applied

Goldberg v Ng (1995) 185 CLR 83; [1995] HCA 39, considered

Grant v Downs (1976) 135 CLR 674; [1976] HCA 63, cited

James v WorkCover Queensland [2001] 2 Qd R 626; [2000] QCA 507, distinguished

Watkins v State of Queensland [2008] 1 Qd R 564; [2007] QCA 430, considered

COUNSEL:

C C Heyworth-Smith, with J P Morris, for the appellant

R Morton for the respondent

SOLICITORS:

Murphy Schmidt Solicitors for the appellant

DLA Phillips Fox for the respondent

  1. MARGARET McMURDO P:  The appellant, Ms Wendy Felgate, underwent laparoscopic surgery on 14 November 2007 at the Royal Brisbane and Women's Hospital.  The respondent, Dr Paul Tucker, was her anaesthetist.  During the surgical procedure, Ms Felgate experienced a phenomenon known as "surgical awareness": she was conscious but paralysed and unable to communicate her state of consciousness to medical staff.  Five days later, Ms Felgate gave Dr Tucker an initial notice of her claim for damages for personal injuries arising from this incident under s 9A Personal Injuries Proceedings Act 2002 (Qld) ("the Act").  During a subsequent compulsory conference between the parties under the Act Dr Tucker produced a document entitled "Interpretation of anaesthetic record" which I will refer to as "the document".  Ms Felgate sought disclosure of the statement Dr Tucker gave to his lawyers on which the document was based.  Dr Tucker claimed legal professional privilege and refused to produce any statement or notes concerning his instructions to his lawyers.  Ms Felgate brought an application in the Trial Division of this Court for an order that Dr Tucker provide Ms Felgate with any relevant documents including any statements of Dr Tucker in respect of her claim for damages for personal injuries sustained on 14 November 2007.  The primary judge dismissed the application with costs.  Ms Felgate has appealed from that decision. 
  1. Dr Tucker's counsel at the hearing refined the long and diffuse grounds of appeal to five issues. The first was whether Dr Tucker's statement to his lawyers about the document was prima facie required to be disclosed under the Act. The second was, if so, whether Dr Tucker demonstrated that the statement was the subject of legal professional privilege. The third was, if so, was the statement nevertheless required to be disclosed under s 30(2) of the Act.  The fourth was, if the statement was not required to be disclosed under s 30(2), did Dr Tucker waive privilege, requiring disclosure in any case.  The fifth consideration was whether the judge erred in striking out paragraphs 17 to 19 of the affidavit of Steven Paul Herd, Dr Tucker's solicitor, who deposed to events that occurred during the compulsory conference.
  1. Before returning to discuss these issues it is helpful to set out the relevant aspects of the Act, the pertinent facts and the primary judge's approach to the issues raised in this appeal.

Relevant aspects of the Act

  1. It is common ground that the relevant version of the Act is Reprint 2E.  The main purpose of the Act is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury.[1]  That is achieved by means including providing a procedure for the speedy resolution of claims for damages for personal injury under the Act;[2] promoting settlement of claims at an early stage wherever possible;[3] ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial;[4] and minimising the costs of claims.[5]
  1. Chapter 2 of the Act deals with "Claims"; pt 1 ch 2 deals with "Pre-court procedures". Division 1 of pt 1 of ch 2 (s 9 - s 20) deals with "Claims procedures". Before starting a proceeding in a court based on a claim, the claimant must give written notice of the claim in the approved form to the person against whom the proceeding is proposed to be started under s 9 of the Act.
  1. The person to whom a notice of claim under s 9 is given must give a preliminary response to the claimant[6] but acknowledgement that a person is a proper respondent to the claim under s 10(1)(a) of the Act is not an admission of liability[7].
  1. Section 9A relevantly provides:

"9A Particular provision for notice of a claim procedure for

medical negligence cases

(1)This section applies to a claim based on a medical incident happening on or after the commencement of this section that is alleged to have given rise to personal injury.

(2)Before giving part 1 of a notice of claim under section 9, the claimant must give written notice (initial notice) of the claim to the person against whom a proceeding based on the claim is proposed to be started.

(3)The initial notice must state it is given under this section and contain the following information –

(a)the claimant's full name and address;

(b)any other name by which the claimant is known or has been known;

(c)if the initial notice is given by the claimant's parent or legal guardian, the parent’s or guardian's name;

(d)the claimant's date of birth;

(e)a description of the medial services alleged to have given rise to the personal injury;

(f)if known, the name of the doctor who provided the medical services;

(g)the date or dates when the medical services were provided;

(h)the place or places at which the medical services were provided;

(i)a description of the personal injury alleged to have been suffered.

(8)A person to whom an initial notice is given must, within 1 month after receiving the initial notice, give the claimant—

(a)a written response advising whether any documents are held in relation to the medical services mentioned in the notice; and

(b)copies of all documents held by the person about the medical services.

…".

  1. Section 20 relevantly provides:

"20Respondent must attempt to resolve claim

(1)Within the period prescribed … after a respondent receives a complying part 1 notice of claim, the respondent must—

(a)take reasonable steps to inform himself, herself or itself about the incident alleged to have given rise to the personal injury to which the claim relates; and

(b)give the claimant written notice stating—

(i)whether liability is admitted or denied; and

(ii)if contributory negligence is claimed, the degree of the contributory negligence expressed as a percentage; and

(c)if the claimant made an offer of settlement in part 2 of the notice of a claim, inform the claimant whether the respondent accepts or rejects the offer, or if the claimant did not make an offer of settlement in part 2 of the notice, invite the claimant to make a written offer of settlement; and

(d)make a fair and reasonable estimate of the damages to which the claimant would be entitled in a proceeding against the respondent; and

(e)make a written offer, or counteroffer, of settlement to the claimant setting out in detail the basis on which the offer is made, or settle the claim by accepting an offer made by the claimant.

(3)An offer, or counteroffer, of settlement must be accompanied by a copy of medical reports, assessments of cognitive, functional or vocational capacity and all other material, including documents relevant to assessing economic loss, in the offerer’s possession that may help the person to whom the offer is made make a proper assessment of the offer.

… ."

  1. Division 2 of pt 1 of ch 2 of the Act (s 21- s 34) deals with "Obligations of the parties" and relevantly provides:

"21Purpose of div 2

The purpose of this division is to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim.

22Duty of claimant to provide documents and information to respondent

(1)A claimant must give a respondent –

(a)copies of the following in the claimant's possession –

(i)reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates;

(ii)reports about the claimant's medical condition or prospects of rehabilitation;

(iii)reports about the claimant's cognitive, functional or vocational capacity; and

(b)information reasonably requested by the respondent about any of the following –

(i)the incident;

(ii)the nature of the personal injury and of any consequent disabilities;

(iii)if applicable, the medical treatment and rehabilitation services the claimant has sought or obtained;

(iv)the claimant's medical history, as far as it is relevant to the claim, and any other claims for damages for personal injury made by the claimant;

(v)the claimant's claim for past and future economic loss;

(vi)any claim known to the claimant for gratuitous services or loss of consortium or servitium consequent on the claimant's personal injury.

(2)If the claim is a health care claim, the claimant must, if reasonably requested by a respondent, give the respondent a single report from a doctor with appropriate qualifications and experience in the relevant field that includes an opinion regarding –

(a)the nature and extent of the personal injury alleged to have been suffered; and

(b)the causal relationship between the incident and the personal injury alleged to have arisen from the incident.

(3)The respondent may not request a report under subsection (2) if a similar report has already been given under subsection (1).

(4)However, the giving of a report under subsection (2) does not limit the respondents’s (sic) right to require the claimant to undergo an examination or assessment under section 25.

(5)The claimant must –

(a)provide the copies mentioned in subsection (1)(a) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after giving notice of a claim under division 1 or purportedly under division 1 and, to the extent that the reports or material come into the claimant's possession later, within 7 days after they come into the claimant's possession; and

(b)respond to a request under subsection (1)(b) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving it.

(6)If, after notice of a claim is given to a respondent under division 1 or purportedly under division 1 but before the claim is resolved, the claimant becomes aware of –

(a)a change in the claimant's medical condition or disabilities; or

(b)a change in other circumstances relevant to an assessment of the claimant's claim;

the claimant must, within the period prescribed under a regulation or, if no period is prescribed, within 1 month after becoming aware of the change, inform the respondent of the change.

(7)If a respondent requires information provided by a claimant under this section to be verified by statutory declaration, the claimant must verify the information by statutory declaration.

(8)If a claimant fails, without proper reason, to comply fully with a request by a respondent under this section, the claimant is liable for costs to the respondent resulting from the failure."

  1. Section 27 relevantly provides:

"27Duty of respondent to give documents and information to claimant

(1)A respondent must give a claimant—

(a)copies of the following in the respondent's possession that are directly relevant to a matter in issue in the claim—

(i)reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates;

(ii)reports about the claimant's medical condition or prospects of rehabilitation;

(iii)reports about the claimant's cognitive, functional or vocational capacity; and

(b)if asked by the claimant—

(i)information that is in the respondent's possession about the circumstances of, or the reasons for, the incident; or

(ii)if the respondent is an insurer of a person for the claim, information that can be found out from the insured person for the claim, about the circumstances of, or the reasons for, the incident.

(4)If a respondent fails, without proper reason, to comply fully with this section, the respondent is liable for costs to the claimant resulting from the failure."

  1. Section 30 relevantly provides:

"30Nondisclosure of particular material

(1)A party is not obliged to disclose information or documentary material under division 1 or this division if the information or documentary material is protected by legal professional privilege.

(2)However, investigative reports, medical reports and reports relevant to the claimant’s rehabilitation must be disclosed even though otherwise protected by legal professional privilege but they may be disclosed with the omission of passages consisting only of statements of opinion.

… ."

The pertinent factual background

  1. Dr Tucker wrote in Ms Felgate's medical chart the day after the surgery:

"I was unable to see her last night but I rang her and explained things as best I could.  She had a TIVA anaesthetic with blood propofol concentration of 4-6 mcg/ml using Fentanyl 500mcg and cisatricurium over a 2 hour period.

On two occasions the surgeon noted she coughed.  BIS monitoring was attempted shortly after induction but despite repositioning and replacing the electrodes no reading could be obtained.

There was no evidence of any failure of Propofol delivery so I can only assume that the doses were inadequate.

I have no doubt she experienced general intraoperative awareness and I take full responsibility.  [Ms Felgate] knows this.  I will provide her with a letter outlining what happened.  I will send a copy to her GP.  I have given [Ms Felgate] my details and I'll stay in touch."

  1. On 19 November 2007, Ms Felgate served on Dr Tucker an initial notice in compliance with s 9A[8] in which she stated:

"I underwent surgery … at the Royal Brisbane and Women's Hospital on 14 November 2007.

Dr Paul Tucker was the doctor responsible for administering and monitoring my anaesthetic during the surgery.

I was not properly anaesthetised by Dr Tucker. I was only paralysed and was therefore conscious for the whole procedure."

  1. On 7 January 2008, Ms Felgate provided a notice of claim under s 9. On 4 February 2008, Dr Tucker responded under s 10. On 26 June 2009, he provided his further response under s 20[9] denying liability in respect of the claim; making no allegation of contributory negligence at that time; noting Ms Felgate had not made a written offer of settlement and inviting her to do so; and making "a fair and reasonable estimate of the damages to which [Ms Felgate] is entitled in a proceeding against [Dr Tucker]: Nil."  He offered to settle her claim on the basis that each party walked away bearing their own costs, with Ms Felgate agreeing to release, discharge and indemnify him in respect of the incident and to sign a release and discharge in terms satisfactory to him.  He also noted that under s 20(3) he had recently disclosed the report of Dr James Bradley dated 25 March 2009 and there were no further reports to disclose.
  1. A compulsory conference under the Act was convened on 9 July 2010. At the conference, Dr Tucker produced the document which was in the following terms:

"Interpretation of anaesthetic record

Time16001645170017301745

Fentanyl mcg300200

Cisatracurium mg144222

Diprivan[10] mgs160 then 60-90 ml an hr relative to blood pressure and pulse"

  1. The compulsory conference did not result in a settlement and was adjourned to a date to be fixed.
  1. On 30 July 2010, Ms Felgate's lawyers wrote to Dr Tucker's lawyers. They noted that the document differed from, or contained further information than was in, the theatre notes from the hospital. The document was clearly based on a statement from Dr Tucker to his lawyers. Citing Watkins v State of Queensland,[11] they asserted that legal professional privilege did not attach to Dr Tucker's statement to his lawyers on which the document was based.  They requested that Dr Tucker's solicitors forward them "a copy of any statement/s you hold from your client's insured".  In the absence of compliance with their request within seven days, they foreshadowed an application to the court of the kind ultimately made.
  1. On 12 August 2010, Dr Tucker's lawyers responded in an emailed letter asserting:

"There is no such basis for the disclosure of Dr Tucker's statement.  This statement was obtained for the sole purpose of the response to this claim or the defence of future litigation.  It is not an expert report.  It is wholly privileged and protected from disclosure pursuant to section 30(1) of [the Act].

To remove any doubt, we have not at any stage contended that 'the theatre notes are not an accurate account' of the surgery.  What was contended at the conference was that the anaesthetic records are difficult to read and in an effort to provide clarification we provided a transcript of the notes that exist in the record.  This transcript was provided to support our contention that Dr Tucker appropriately reacted to your client during the surgery and met the standard to be expected of him.

Conference

Without meaning to be trite, the compulsory conference was conducted on a 'without prejudice' basis.  Any information or documents provided during the course of that conference are not able to be used in any other context.  You are not at liberty to raise the issues in your letter under reply supported by the transcript of the notes provided in the conference."

  1. On 18 August 2010, Ms Felgate's lawyers replied that they intended to proceed with their application and noted:

"In the meantime, we reject your contention that your transcript of the anaesthetic theatre notes cannot be used outside of the compulsory settlement conference.

The mere fact that you handed the transcript to us during the course of a compulsory settlement conference does not mean the transcript cannot be used in any other context.

We put you on notice that we will be annexing your transcript of the anaesthetic theatre notes to our Affidavit in support of our client's Application.

We also reject your assertion that the anaesthetic theatre notes are difficult to read.

So there is no misunderstanding, enclosed is a transcript of our interpretation of the anaesthetic theatre notes. 

In the transcript you provided to us, you have clearly stated that the dose of diprivan ('propofol') given to our client and the approximate times it was given throughout our client's surgery.

Nowhere in the anaesthetic theatre notes is there any record of the dose of propofol given to our client.  The only record that exists in relation to propofol is an "→", presumably indicating the drug was given by way of infusion."

  1. The letter was accompanied by the following document which Ms Felgate's lawyers claimed contained all information discernible from the hospital theatre records:

ANAESTHETIC RECORD – DRUG TABLE

WENDY FELGATE – PREPARED BY MURPHYSCHMIDT

Agents

 

Propofol →

 

 

 

 

 

 

 

 

Fentanyl

300mcg

 

 

200mcg

 

 

 

Cistracurium

  14mg

 

 

4mg

2mg

2mg

 

2mg

Cefoxitin 1g

Flagyl 500mg

 

 

Maxolon 20mg

Graniestron 1mg

Panadol

 

 

1g

 

 

 

 

 

Dynastat

 

 

40

 

 

 

 

 

Clexane

 

 

20

 

 

 

 

 

  Time                      1600                                             1700                                       1800

  1. On 25 August 2010, Dr Tucker's solicitors responded by an emailed letter in terms which included:

"We reiterate our previous position that Dr Tucker's statement was obtained for the sole purpose of the response to this claim or the defence of future litigation.  It is not an expert report.  It is wholly privileged and protected from disclosure pursuant to section 30(1) of [the Act].

The transcript of the anaesthetic records was prepared on instructions from Dr Tucker for the purposes of his response to this claim and is therefore privileged.  On Dr Tucker's instructions, a copy of the interpretation was provided in the 'without prejudice' compulsory conference with the genuine aim of trying to resolve issues between the parties."

They further stated that they held instructions to accept service and to respond to any application, and that they had retained counsel to represent Dr Tucker.

  1. As they foreshadowed, Ms Felgate's lawyers applied to a judge of the Trial Division in the applications jurisdiction for an order that Dr Tucker provide Ms Felgate with a copy of any relevant documents including any statements Dr Tucker made to his lawyers in respect of Ms Felgate's claim for damages for personal injuries sustained on 14 November 2007.
  1. In support of that application, Ms Felgate's solicitor, Mr Herd, deposed to the following matters:

"17.During the course of the conference it became apparent that [Dr Tucker's solicitors] held a statement/s from [Dr Tucker] in respect to [Ms Felgate's] claim. I requested but [Dr Tucker's solicitors] refused to provide [Ms Felgate] with a copy of the statement/s.

  1. It was agreed with [Dr Tucker's solicitors] that the compulsory settlement conference be adjourned to a date to be fixed.
  1. During the course of the conference [Dr Tucker's solicitors] also handed to me a document entitled "Interpretation of anaesthetic records'." (errors in original)
  1. In responding to the application Dr Tucker relied on two affidavits. Dr Tucker's former solicitor, Ms Louise Marie Nixon, deposed that, after Dr Tucker was served with the initial notice under s 9A, she met with him, took his instructions and prepared a statement. The statement "was brought into existence for the purpose of enabling [Ms Nixon] to provide Dr Tucker with legal advice in relation to any anticipated judicial proceeding."
  1. Peter Andrew John Crofts deposed that he was one of the solicitors with the carriage of the response to Ms Felgate’s claim on behalf of Dr Tucker and that:

"Prior to the settlement conference [he] took instructions from Dr Tucker about the submission [he] would make at the conference and also confirmed [his] understanding of the anaesthetic record and the steps he took during the operation in response to his monitoring of Ms Felgate.

In preparation for the conference [he] drafted a submission a part of which was a document that contained a schedule of dosage and time of dose of the three drugs that were used by Dr Tucker to induce and maintain anaesthesia ('the Schedule').  The Schedule merely transcribes into a legible and succinct form a part of the anaesthetic record in the applicant's Hospital medical records, such records are already disclosed to the applicant.

During the course of [his] submission [at the compulsory conference] which was to deny liability and to argue that Dr Tucker had met the required standard, [he] commented to the effect that the anaesthetic record was difficult to read and in an effort to have Mr Herd better understand [his] submission and the record [he] provided a copy of the Schedule.

… ."

  1. No witnesses were cross-examined at the hearing of the application.

The primary judge's reasons

  1. The application was heard on 8 September 2010. The primary judge gave the following ex tempore reasons for dismissing it.
  1. After setting out the issues, facts and relevant legislative provisions, the judge noted that the Act does not expressly provide that a compulsory conference is to be held on a without prejudice basis. That was, however, the universal understanding of the profession and the view of the legal representatives in the present case. If matters disclosed at the conference were not without prejudice, Dr Tucker would not have provided the document and Ms Felgate would not have become aware of Dr Tucker's statement to his lawyers which resulted in the document being prepared.  When parties attempt to settle disputes they frequently make statements without prejudice, as explained in Cross on Evidence:

"When this is done, the contents of the statement cannot be put in evidence without the consent of both parties, the case being one of joint privilege. … [T]he rule is not confined to admissions; it extends to all bona fide without prejudice statements which touch upon the strengths or weaknesses of the parties' cases or place a valuation on a party's rights.  … "Parties cannot speak freely at a without prejudice meeting if they must constantly monitor every sentence with lawyers or patent agents sitting at their shoulders…" Obviously it is in the public interest that disputes should be settled and litigation reduced to a minimum, so the policy of the law is in favour of enlarging the cloak under which negotiations may be conducted without prejudice. This policy is carried out by means of a rigorous insistence on the absence of any magic in the form of words used by the parties, everything being made to depend upon their intention." (footnotes omitted)

  1. The judge found that the parties conducted the compulsory conference negotiations on a without prejudice basis. It followed that a solicitor should not swear as to what took place at the conference. As a result, the judge struck out paragraphs 17, 18 and 19 of Mr Herd's affidavit.[12]
  1. The provisions of the Act do not abrogate the legal professional privilege set out in s 30(1).[13]  Watkins v State of Queensland dealt with a question of communication between a lawyer and third parties, not a communication between lawyer and client.  It was not, therefore, authority for the proposition that a statement of a party given to that party's lawyers instructed to resist the claim was disclosable to the defendant.  Watkins was distinguishable on its facts but, in any case, it did not state that a provision of the Act abrogated the privilege which attached to a communication between a lawyer and client.  The affidavits from Dr Tucker's solicitors[14] clearly stated that Dr Tucker's statements to them were for the purpose of obtaining legal advice.  Communications between a lawyer and a client for the purpose of seeking legal advice are privileged, irrespective of whether they are given for the dominant purpose of litigation.  The judge cited the following passage from Halsbury:

"Legal professional privilege is a substantive general principle of the common law under which a person is entitled subject to defined qualifications and exceptions to preserve the confidentiality of statements and other materials which have been made or brought into existence for the dominant purpose of the persons seeking or being furnished with legal advice, or legal services by a practising lawyer, for the dominant purpose of preparing for existing or anticipated judicial or quasi-judicial proceedings."

  1. The judge concluded that the sworn statement of Ms Nixon that she took a statement from Dr Tucker to enable her to provide him with legal advice, was sufficient to attract privilege to that statement. Dr Tucker's statement was privileged at common law and s 30(1) maintained that privilege.
  1. Another of Dr Tucker's lawyers, Mr Crofts, deposed that the schedule of anaesthetic dosages was put together from records already disclosed. It followed that the document was not necessarily prepared from Dr Tucker's statement.
  1. In supplying the document, Dr Tucker's solicitors were not impliedly waiving privilege.  They had done nothing to make it unfair to maintain the privilege; nor had they abused their right to the privilege by conduct apt to deceive. 
  1. For all those reasons the judge dismissed Ms Felgate's application with costs.

Were Dr Tucker's statements to his lawyers required to be disclosed under the Act?

  1. Ms Felgate's first three contentions can be dealt with together in determining whether Dr Tucker's statement or statements to his lawyers (or notes of them) which led to the production of the document were required to be disclosed under the Act.  That question has been simplified further by the concession made by Dr Tucker's counsel at the appeal hearing that, unless those statements were subject to legal professional privilege, they were required to be disclosed under the Act.
  1. Ms Felgate's contentions are as follows.  The day after the surgery, Dr Tucker informed her that he had no doubt she experienced general intra-operative awareness and that he took full responsibility.[15]  Despite that statement, at the subsequent compulsory conference he denied liability in respect of her claim for damages for personal injuries.  In support of that denial and his offer of settlement whereby each party would walk away bearing their own costs, he relied on the document.  The document was not solely prepared from the hospital theatre records disclosed to Ms Felgate.  Those records gave no information as to the times and dosages of the administration of the drug Propofol (also known as Diprivan).  That information is needed when considering questions of Ms Felgate's blood pressure and heart rate.  It was, therefore, clear that the document was prepared from a statement or statements Dr Tucker gave to his solicitors.  Those statements were required to be disclosed under s 9A(8),[16] s 20(3),[17] s 22,[18] s 27(1)[19] and s 30(2)[20] of the Act.  So much was clear from this Court's decisions in Watkins v State of Queensland; Allen v State of Queensland[21] and James v WorkCover Queensland.[22]
  1. In dealing with these contentions it is convenient to begin with a discussion of Watkins.  There, the first issue was whether the notes made by the defendant's solicitor of a telephone conference with a prospective expert witness constituted a "report" under s 30(2).[23]  If so, the notes were not privileged.  The second issue concerned a letter or letters of instruction to the prospective expert witness.  Although it was subject to legal professional privilege, the claimant contended the privilege was waived once the defendant's solicitor gave the claimant a copy of the expert’s report under s 20(3) and s 27(1).[24] 

Keane JA (with whom MacKenzie J agreed and Jerrard JA generally agreed) noted:

"… I have concluded that s.20 of the [Act], understood in its statutory context, is not to be interpreted with a presumption in favour of the preservation of privilege:  the [Act] intends that the claimant should have as full and correct an understanding of the bases of a respondent's denial of liability and offer of settlement as the respondent itself does.[25]

The purpose of the provisions of the Act:

"…is to ensure that good claims are paid and bad claims are abandoned before proceedings are commenced in court; that is to say, the 'dominant' purpose is that there should not be litigation of the claim at all if that is reasonably possible.[26]

…[The expert] report was obtained for the purposes of the pre-litigation procedures contemplated by the provisions of div. 1 to div. 4 of pt 1 of ch. 2 of the [Act], and particularly s. 20, no privilege could have attached to it.  The obtaining of a report by a party to enable that party to observe the requirements of s. 20 of the [Act] is, in my opinion, not apt to clothe the report with legal professional privilege so as to engage s. 30 of the [Act].  Indeed, I consider that s. 20 is distinctly inconsistent with such a result.  Section 20(3) and s. 30 must be given an harmonious operation: the latter cannot be intended to cancel the former.[27] 

…the obviously correct conclusion that [the expert] report was commissioned by the [defendant] for the purposes of the pre-proceeding procedures contemplated by the [Act].[28]

…the obtaining and use of the [expert] report … in compliance with s. 20 of the [Act] did not make the report a subject of privilege:  indeed, it served to ensure that the report was not the subject of confidentiality upon which the [defendant] could insist as against [the claimant].[29]

The crucial question is whether the communications were exempt from disclosure by virtue of s. 30 of [the Act]. It is to be emphasised here that s. 30(1) of [the Act] does not create legal professional privilege in any communication… . Reading s. 20, s. 27 and s. 30 together, one can see that s. 30(1) is concerned to remove from the scope of compulsory disclosure, under s. 20 or s. 27 documents whose claim to privilege arises because they were brought into existence for reasons other than compliance with s. 20 or s. 27 of [the Act]."[30]

Keane JA referred to cases concerning professional privilege attaching to communications by a lawyer for one party to a third party[31] and concluded that the communications relating to the commissioning of the expert report and the report itself were not privileged under the general law and were never the subject of privilege.[32]  His Honour added:

"It may fairly be said that the scope of the obligation of disclosure resulting from s. 20, as I understand it, is far reaching in that it may require the production of communications between parties' lawyers and third parties which, in other contexts, would be privileged; but to say that is simply to acknowledge that the broad language of s.20(3) is not to be read down by a presumption in favour of confidentiality in circumstances where a process of negotiation mandated by the statute is intended to result in agreements which will obviate the need for litigation.  In such circumstances, it is hardly surprising that the legislature would require a level of disclosure necessary to ensure that claims are compromised only on the footing that each party is equally well-informed about the issues.  And, in truth, for several reasons, this conclusion is not as far-reaching as it might first appear.  First, communications which are not apt to help the offeree assess the offer need not be provided under s. 20(3) of [the Act].  Secondly, and more importantly perhaps, reports which are obtained for the dominant purpose of enabling a respondent to a claim to take legal advice on the claim will be privileged:  such reports are outside the scope of s. 20(3) and, even if they fall within the descriptive words in s. 27(1)(a)(i), the benefit of the privilege would be maintained by s. 30(1) of [the Act].  In this case, of course, it was not suggested that [the expert's] report was obtained for the purpose of the [defendant] obtaining legal advice."[33]

Keane JA concluded that the Act indicated "a legislative intention that reports and associated communications which come into existence to meet the requirements of s 20 of [the Act] do not become subject to privilege."[34]

  1. Ms Felgate has also placed emphasis on Allen.[35]  In that case, the applicant suffered brain damage during a hospital medical procedure when he was 16 months old.  He was eight years old when he brought an application for the disclosure of documents in the defendant's possession relating to the medical services it provided to him, including reports prepared as a result of the defendant's investigation into the incident.  The questions were whether the documents were protected from disclosure by legal professional privilege and, if so, whether they were required to be disclosed, wholly or in part, under s 30(2) as "investigative reports".[36]  After setting out the relevant statutory provisions and referring to Watkins, Applegarth J noted that no notice of claim under s 9 of the Act had been given so that the respondent had no obligation under s 20(1)(a).[37]  Applegarth J was "…concerned with reports prepared years before any notice of claim may be served and which were prepared to create a contemporaneous record of events associated with the provision of medical services at about the time of a medical incident."[38]

His Honour considered that s 30, in the context of the initial notice requirements of s 9A and the disclosure obligation imposed by s 9A(8)(b), should be construed as equipping a claimant with essential facts.[39]  The term "investigative reports" in s 30(2) meant "a report that is made as a result of an investigation into a medical incident."[40]  In reaching that conclusion, Applegarth J relied on Jerrard JA’s statement in Watkins that "a note recording information about the circumstances of the claimant child's birth is a report about the incident alleged to have given rise to the personal injury to which his claim related."[41]  Applegarth J concluded[42] that:

"…a witness statement or a file note recording information about the circumstances of a medical incident involving a claimant is a report about the incident.  If the report is produced in the course of an investigation into the incident … it [is] … an investigative report."[43]

  1. Ms Felgate also referred to James.[44]  In that case, this Court considered whether a witness statement annexed to a loss adjuster's report was required to be disclosed to the applicant under the WorkCover Queensland Act 1996 (Qld) (now repealed).[45]  WorkCover contended the document was privileged.  The statute excluded investigative reports from privilege.  The report, but not the witness statement, was disclosed at a compulsory conference under the statute.  Pincus JA and Byrne J (Thomas JA dissenting) gave separate reasons for allowing the appeal and ordering that the witness statement was required to be disclosed.  Pincus JA noted that when the report was delivered to the lawyers who commissioned it, the witness statement was attached to the report, making it a single document.  The witness statement standing alone would have been privileged.  But the single document which included the attached witness statement was required to be disclosed as an investigative report under s 288(2) WorkCover Queensland Act

Byrne J considered that the report, including the witness statement, was commissioned for an investigation of the injury, adding: 

"At that stage, eventual litigation was no doubt a possibility.  But there is nothing to show that litigation then presented as a likely outcome of the processes that had to be endured before proceedings could be commenced.  There was not even material to suggest that many back injury claims surmount the pre-litigation hurdles the Act erects and become litigious these days."[46]

The report was therefore not privileged as it could not be shown that it was procured for confidential use in the giving of legal advice.[47]  Further, Byrne J considered that the witness statement was a part of the report required to be disclosed under the Act for the reasons given by Pincus JA.[48]

  1. Ms Felgate placed some weight on Dr Tucker's admission of responsibility the day after her unpleasant surgical experience[49] and the inconsistency with this approach and his subsequent tack at the compulsory conference.  But Dr Tucker's admission of responsibility was consistent with his role in the surgical procedure and his wanting to fully assist Ms Felgate in her recuperation.  It was, as indeed Ms Felgate's counsel accepts, not necessarily an unequivocal admission of liability.  It is of no assistance in resolving the questions in dispute in this appeal.
  1. Watkins, Allen and James are also of little assistance in determining the issues in this case.  They each concerned whether legal professional privilege attached to third party communications, not whether legal professional privilege attached to communications between clients and lawyers.  Any statements as to the interpretation of the Act in those cases must be construed in that context.
  1. It is self-evident that the legal professional privilege with which this case is concerned is that between lawyer and client. Where such privilege exists, it attaches to all communications passing between clients and their legal advisors in both civil and criminal cases, with the result that legal advisors need not give evidence of those communications without their clients' consent. The privilege attaches to both oral communications and to documents recording those communications so as to enable clients to obtain, and lawyers to give, legal advice and assistance with reference to litigation that is either actually taking place or is in the contemplation of the clients. The concept is an ancient one dating back to Elizabethan times. But more recently it has been said to be based on public interest and the belief that disputes leading to litigation are most justly and expeditiously handled by lawyers who can act more effectively if the parties they represent feel free to confidentially provide them with all the facts as they know them.[50]
  1. In Esso Australia Resources Ltd v Federal Commissioner of Taxation,[51] Gleeson CJ and Gaudron and Gummow JJ discussed the obvious tension, highlighted in the present case, between the policy leading to legal professional privilege and the desirability that, in the interests of justice, parties to litigation should obtain the fullest possible access to relevant facts.  Their Honours recognised the need to balance these competing considerations.[52]  They determined that the approach previously taken in Grant v Downs,[53] that privilege attached only to communications made or documents prepared for the sole purpose of the lawyer providing legal advice or legal services, should not be followed.  Instead, the test was whether the communications or documents were prepared for the dominant purpose of a lawyer providing legal advice or legal services.[54]
  1. It is well established that legal professional privilege cannot be abrogated by legislation except where the legislative intent to do so is clearly and unequivocally revealed, either expressly or by necessary implication: Baker v Campbell;[55] Cockerill v Collins;[56] and Watkins.[57] 
  1. As the primary judge recognised, there was no reason on the evidence to doubt the statements of Ms Nixon and Mr Crofts that they were acting for Dr Tucker in all relevant dealings with Ms Felgate and in responding on his behalf to her claim under the Act or in defending future litigation.  Despite Ms Felgate's contrary contentions, this was clearly so whether or not Dr Tucker's solicitors were also acting on behalf of his insurer.
  1. Ms Nixon took a statement from Dr Tucker after he was served with the s 9A initial notice to enable her to provide him with legal advice about "any anticipated judicial proceeding".[58]  Mr Crofts took instructions from Dr Tucker in preparation for the compulsory conference.[59]  It is true that, under the Act, extensive pre-court procedures had to be satisfied before Ms Felgate could start a court proceeding against Dr Tucker.  It is also true that one means of achieving the main purpose of the Act is by the speedy resolution of claims for damages for personal injury by promoting settlement of claims at an early stage wherever possible and that the purpose of div 2 of pt 1 of ch 2 is to put parties in a position where there is enough information to assess the claim.[60]  But prudent lawyers acting for a respondent in Dr Tucker's position would proceed on the basis that the claim could well result in significant litigation.  I accept that both Ms Nixon and Mr Crofts took Dr Tucker's instructions to meet the mandatory pre-litigation procedures under the Act and also in contemplation of potential future litigation should the claim not settle.  But it does not follow that therefore the dominant purpose in taking those instructions was not in contemplation of future litigation.  As the pre-court procedures mandated by the Act are an essential part of any future litigation, when Ms Nixon and Mr Crofts took Dr Tucker's instructions resulting in the production of the document, their dominant purpose was in contemplation of future litigation.  That was so even though the instructions also concerned the more immediate issue of meeting the mandatory pre-court procedures.  As a result, those statements were privileged, unless the Act clearly stated otherwise.
  1. I note the wide terms of s 9A(8);[61] s 20(3),[62] s 22;[63] and s 27(1)(a)(i).[64]  I also note the purpose of the Act and the stated means of achieving that purpose in s 4,[65] and the purpose of div 2 of pt 1 of ch 2 in s 21.[66]  But there is nothing in the Act which specifically purports to exclude legal professional privilege between lawyers and clients, whether those clients are claimants or respondents under the Act.  To construe the Act as removing the application of legal professional privilege to oral or documented communications between lawyers and clients would be extraordinary, even revolutionary.  It is not a construction which I would adopt in the absence of the clearest of words. 
  1. It follows that Dr Tucker's controversial statements to his solicitors remained privileged under s 30(1)[67] unless they were "reports" under s 30(2).[68]  The term "report" is not defined in the Act or in the Acts Interpretation Act 1954 (Qld).  It has its ordinary meaning.  Clients' instructions to lawyers and consequential notes and statements are not ordinarily considered reports.  I am far from persuaded that the legislature intended the word "reports" in s 30(2) to include notes or recordings of, or written statements given by clients (whether claimants or respondents) to their legal representatives for the purposes of progressing or answering a claim under the Act.  The main purpose of the Act[69] and the purpose of div 2 of pt 1 of ch 2[70] would not be assisted by abolishing legal professional privilege.  Claimants and respondents would be reluctant to give frank instructions to their lawyers if those instructions must be disclosed to their opponents.  On the contrary, the removal of the privilege which exists between client and lawyer would positively undermine those purposes.  A lack of candour between client and lawyer would be likely to result in delays in ascertaining the real issues and the suppression of reliable relevant information.
  1. Further, the means of achieving the main purpose of the Act[71] and the purpose of div 2 of pt 1 of ch 2 in s 21[72] can be well met by the very significant disclosure required under s 9A(3);[73] s 22;[74] s 27[75] and s 30(2),[76] especially in light of the approach required following this Court's decision in Watkins, without removing or diluting the privilege which attaches to communications between lawyer and client in contemplation of litigation.  Importantly, such a construction of the provisions of the Act sits entirely comfortably with all relevant aspects of the Act and especially with the terms of s 30(1).[77]
  1. It follows that the primary judge was right in concluding that the Act did not require disclosure of Dr Tucker’s statements to his lawyers which resulted in the production of the document. Ms Felgate's contentions as to the construction of the Act are not made out.

Waiver of privilege

  1. Ms Felgate's alternative contention is that Dr Tucker waived that privilege when his lawyer, Mr Crofts, produced the document at the compulsory conference. The document contained information which, Ms Felgate submits, was not contained in the anaesthetic record, namely, "Diprivan mgs 160 then 60-90ml an hour relative to blood pressure and pulse." This additional material must have come from Dr Tucker’s statement to Mr Crofts.  Mr Crofts' evidence that the document was compiled from records already disclosed is wrong.  The document amounts to an imputed waiver of the privilege which attached to any of Dr Tucker's statements to his solicitors on which the document was based: Attorney-General (NT) v Maurice[78] and Goldberg v Ng.[79]
  1. In Goldberg, Deane, Dawson and Gaudron JJ noted:

"The circumstances in which a waiver of legal professional privilege will be imputed by operation of law cannot be precisely defined in advance.  The most that can be done is to identify a number of general propositions.  Necessarily the basis of such an imputed waiver would be some act or omission of the persons entitled to the benefit of the privilege.  Ordinarily that act or omission will involve or relate to a limited actual or purported disclosure of the contents of the privileged material.  When some act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver, the governing consideration is whether 'fairness requires that his privilege shall cease whether he intended that result or not'.  That does not mean, however, that an imputed waiver must completely destroy the privilege.  Like an express waiver, it can be limited so that it applies only in relation to particular persons, materials or purposes. 

In Attorney-General (NT) v Maurice, it was accepted in all judgments that the question whether a limited disclosure gives rise to an implied or imputed waiver of legal professional privilege ultimately falls to be resolved by reference to the requirements of fairness in all the circumstances of the particular case."[80] (Footnotes omitted)

After further discussing Attorney-General (NT) v Maurice their Honours concluded:

"… that the critical question in the present case is whether Mr Goldberg's disclosure of the privileged documents to the Law Society gave rise to a situation where ordinary notions of fairness required that he be precluded from asserting that those documents were protected from production for inspection by the Ngs in the related equity proceedings between the Ngs and the Goldbergs."[81]

  1. Ms Felgate has not demonstrated on the evidence that the document contained information in addition to that contained in the hospital theatre records. Those records are impossible for me to interpret in the absence of explanatory evidence from those familiar with such record taking. No such evidence was given. Mr Crofts' evidence was that the document merely transcribed into a legible and succinct form a part of the anaesthetic record in the hospital records already disclosed to Ms Felgate.  His evidence was not contradicted by competing evidence.  In those circumstances, there is no unfairness to Ms Felgate in allowing Dr Tucker to maintain his right to claim privilege in respect of his instructions to his lawyers in answering Ms Felgate's claim under the Act.  This contention also fails.

Were paragraphs 17, 18 and 19 of Mr Herd's affidavit[82] rightly excluded?

  1. It is not and has never been suggested that the parties' compulsory conference under the Act was anything other than a without prejudice conference. The paragraphs from Mr Herd's affidavit which were struck out by the judge were relevant to the determination of the issues before her Honour even though they referred to without prejudice communications. The judge determined the issues in dispute in the application. Once her Honour found that the subject matter of the impugned paragraphs was subject to legal professional privilege which had not been waived, the judge did not err in striking out the paragraphs. It follows that this contention also fails.

Conclusion

  1. As none of Ms Felgate's contentions have been made out, the appeal must be dismissed with costs.
  1. FRASER JA:  I have had the advantage of reading the reasons for judgment of the President.  I agree with those reasons and with the order proposed by her Honour. 
  1. WHITE JA:  I have read the reasons of the President and agree with her Honour’s reasons and the proposed order that the appeal be dismissed.

Footnotes

[1] The Act, s 4(1).

[2] The Act, s 4(2)(a).

[3] The Act, s 4(2)(b).

[4] The Act, s 4(2)(c).

[5] The Act, s 4(2)(e).

[6] The Act, s 10.

[7] The Act, s 11.

[8] See [7] of these reasons.

[9] See [8] of these reasons.

[10] Also known as Propofol.

[11] [2008] 1 Qd R 564; [2007] QCA 430.

[12] These are relevantly set out at [23] of these reasons.

[13] Set out at [11] of these reasons.

[14] Relevantly set out at [24] and [25] of these reasons.

[15] See [12] of these reasons.

[16] Set out at [7] of these reasons.

[17] Set out at [8] of these reasons.

[18] Set out at [9] of these reasons.

[19] Set out at [10] of these reasons.

[20] Set out at [11] of these reasons.

[21] [2010] QSC 442.

[22] [2001] 2 Qd R 626; [2000] QCA 507.

[23] [2008] 1 Qd R 564 at [18], [28].

[24] Above [19], [29].

[25] Above [60].

[26] Above [67].

[27] Above [68].

[28] Above [69].

[29] Above [70].

[30] Above [71].

[31] Above [74]-[81].

[32] Above [82].

[33] Above at [83].

[34] Above at [86].

[35] Allen was the subject of an appeal to this Court heard on 17 May 2011 which has not yet been determined.

[36] Allen v State of Queensland [2010] QSC 442.

[37] Above [16].

[38] Above [19].

[39] Above [36].

[40] Above [37].

[41] Watkins, [24].

[42] Allen, [38]-[40].

[43] Above [40].

[44] [2001] 2 Qd R 626; [2000] QCA 507.

[45] Workers' Compensation and Rehabilitation Act 2003 (Qld) No 27.

[46] James v WorkCover Queensland [2001] 2 Qd R 626, [45].

[47] Above [47].

[48] Above [49].

[49] See [12] of these reasons.

[50] D Byrne and J D Heydon eds, Cross on Evidence, Australian edition, [25210].

[51] (1999) 201 CLR 49; [1999] HCA 67.

[52] Above [35] and [57].

[53] (1976) 135 CLR 674; [1976] HCA 63.

[54] Above [61].

[55] (1983) 153 CLR 52; [1983] HCA 39.

[56] [1999] 2 Qd R 26; [1998] QCA 76.

[57] [2008] 1 Qd R 564, [41].

[58] See [24] of these reasons.

[59] See [25] of these reasons.

[60] See [4] of these reasons.

[61] Set out at [7] of these reasons.

[62] Set out at [8] of these reasons.

[63] Set out at [9] of these reasons.

[64] Set out at [10] of these reasons.

[65] See [4] of these reasons.

[66] Set out at [9] of these reasons.

[67] Set out at [11] of these reasons.

[68] Above.

[69] See [4] of these reasons.

[70] See s 21 set out at [9] of these reasons.

[71] See [4] of these reasons.

[72] Set out at [9] of these reasons.

[73] Set out at [7] of these reasons.

[74] Set out at [9] of these reasons.

[75] Set out at [10] of these reasons.

[76] Set out at [11] of these reasons.

[77] Set out at [11] of these reasons.

[78] (1986) 161 CLR 475; [1986] HCA 80.

[79] (1995) 185 CLR 83; [1995] HCA 39.

[80] Above, 95-96.

[81] Above, 98.

[82] Set out at [23] of these reasons.

Close

Editorial Notes

  • Published Case Name:

    Felgate v Tucker

  • Shortened Case Name:

    Felgate v Tucker

  • MNC:

    [2011] QCA 194

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Fraser, White JJA

  • Date:

    12 Aug 2011

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment - - -
Appeal Determined (QCA) [2011] QCA 194 12 Aug 2011 -

Appeal Status

{solid} Appeal Determined (QCA)