Enkelmann v Stewart[2023] QCA 155

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  The appellants appeal from an order requiring them to disclose certain file notes taken by their solicitors.^[1]  The notes are of oral comments by a registered professional engineer, Mr Giles, made in a conference with the appellants’ solicitors and counsel.  They are about the relative strengths of written reports by two other engineers, Mr Sargent, who had been retained by the appellants, and Dr Markar, who had been retained by the respondents.  The appellants’ solicitors had asked Mr Giles to do a “peer review” of the two reports.
2. [2]
   The appellants submit that the solicitors’ file notes are protected from production by legal professional privilege, as documents brought into existence for the dominant purpose of providing confidential legal advice or for use in pending legal proceedings.^[2]
3. [3]
   The respondents submit that the appellants’ privilege has been abrogated by r 212(2) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).  If it has not, the respondents contend that the appellants have waived their privilege.

The privilege

4. [4]
   In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission,^[3] Gleeson CJ, Gaudron, Gummow and Hayne JJ held:

“It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.” ^[4]

5. [5]
   It is an important common law immunity.  It includes a right to prevent the disclosure of confidential communications between a client’s lawyer and third parties when they are made for the benefit of the client.  It also protects from disclosure confidential material that records the work the lawyer carried out for the benefit of the client.^[5]  From the time courts of common law began to order discovery and production of documents, the privilege has been applied to expert opinions obtained to guide parties and their legal advisers.^[6]
6. [6]
   Absent statutory abrogation or waiver, the privilege would protect the file notes from production because, it may be reasonably assumed, the notes were made for the dominant purpose of the solicitors communicating confidential legal advice to the appellants, or for briefing counsel to so advise, or to record the solicitors’ work done for the benefit of the appellants.
7. [7]
   If the privilege has not been abrogated or waived, the learned primary judge erred in making the order for disclosure of the notes.

The evidence before the primary judge

8. [8]
   On Friday 12 May 2023, at the trial before the primary judge, the appellants called Mr Giles as an expert witness, and tendered his three written reports.  In a report dated 27 April 2022, Mr Giles gave his opinion on the methodology and approach of Dr Markar.  Mr Giles wrote that, in preparing the report, he had reviewed three reports by Mr Sargent, two reports by Dr Markar, and a joint report by them both (collectively the Sargent & Markar reports).
9. [9]
   Mr Giles included copies of the letters of instruction from the appellants’ solicitors in this report.  The earliest of these was dated 1 November 2021.  By that letter, the solicitors had asked Mr Giles to “conduct a peer review” of the Sargent & Markar reports and provide his opinion “of the most accurate outcome to be garnered from the reports.”  The solicitors also asked Mr Giles to “express an opinion” about “the preferred approach” and “the likely effect of each such issue in light of the opinion” he had expressed.  Their letter stated that Mr Giles’s report on these things was required for a mediation to be held on 16 November 2021.
10. [10]
    After identifying himself and his three reports, Mr Giles was cross-examined by Mr Handran KC, leading counsel for the respondents.  When asked about the 1 November 2021 letter, Mr Giles told the Court he did not prepare or produce a report on, or a memorandum or written record of, a peer review of the Sargent & Markar reports.  He said he may have made notations on copies of the reports, but they either were disposed of by his former employer or remain on the former employer’s files.
11. [11]
    Mr Giles explained that the matter “very rapidly progressed” before he complied with the request in the 1 November 2021 letter.  Instead of the peer review, the appellants’ solicitors had asked Mr Giles to undertake a different task.^[7]
12. [12]
    Mr Giles told the Court he attended a conference with the appellants’ counsel and solicitors, at which he discussed his “initial feelings” about the Sargent & Markar reports.  The conference was online.  It happened before he received the letter from the appellants’ solicitors dated 1 November 2021.  From other evidence, it seems the conference was in October 2021.

The decision of the primary judge

13. [13]
    On Tuesday 16 May 2023, as the trial continued, the respondents applied to the primary judge for an order requiring the appellants to disclose the solicitors’ file notes of the conference with Mr Giles, amongst other things.^[8]  The appellants, without conceding any notes existed, claimed they would be privileged from production.  The respondents submitted, as they do in the appeal, that r 212(2) abrogated the appellants’ right to protect the notes from disclosure and that the appellants had waived any legal professional privilege.
14. [14]
    On Wednesday 17 May 2023, the primary judge gave ex tempore reasons, which were transcribed and published.^[9]  In the reasons, her Honour indicated that an order would be made requiring the appellants to disclose any file notes “recording statements of Mr Giles in respect of the peer review” and any “file notes recording statements of Mr Giles being opinions and summaries of factual matters.”
15. [15]
    On Thursday 18 May 2023, the primary judge made an order in terms of a draft settled between the parties.  That order is the subject of this appeal.

Appeal ground 1 – Did the primary judge err in construing r 212(2) as abrogating the privilege protecting a solicitor’s note of an opinion or summary of facts given by an expert in conference with legal advisers?

16. [16]
    It is common ground that the order assumes that any file note of the kind her Honour described consists of a “statement or report of an expert” and is not privileged from disclosure, by operation of r 212(2).  The appeal proceeded on this basis.
17. [17]
    The published reasons record the primary judge’s conclusion on the relevant effect of r 212(2):

“The abrogation of legal professional privilege in r 212(2) extends to a solicitor’s file note, which records the opinion of an expert on an issue which is directly relevant on the pleadings and … it does not only incorporate reports actually drafted or prepared by the expert.

… There is no limitation in that rule that the actual document itself needs to emanate from the expert.  What is inherent in subsection (2) is that the document incorporates the opinion, being the statement or report of an expert.  That is what is required to come from the expert, not the provenance of the document itself.

It may be that only part of a solicitor’s file note would be encompassed by the requirements of a document consisting of a statement or report of an expert, and that other parts of a file note may be properly the subject of a claim for privilege.”^[10]

18. [18]
    For the following reasons, we respectfully disagree with her Honour’s conclusion.
19. [19]
    Rule 212(2) is in identical terms to the former O 35 r 5(2) of the Rules of the Supreme Court (Qld).  From the commencement of the former rule, in 1994,^[11] the law has been that a “document consisting of a statement or report of an expert is not privileged from disclosure” in civil proceedings.  The rule has been described as an “exceptional” statutory provision,^[12] and a “limited exception in the application of the usual rules applicable to privileged documents.”^[13]
20. [20]
    Before O 35 r 5(2), a party to civil litigation could assert legal professional privilege and decline to produce a confidential written statement of an expert taken by the solicitor, or an expert’s written report requested by a solicitor, made for the purpose of being placed before the party’s legal adviser to obtain confidential professional legal advice or for use in anticipated or pending litigation.
21. [21]
    On its proper construction, the effect of r 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.  The rule affects a document brought into existence to be a statement or report of an expert, whether taken by a solicitor or prepared by the expert or prepared by a solicitor at the dictation of the expert.  This includes a draft of such a statement or report.
22. [22]
    Only rights in respect of a statement or report of an expert are abrogated.  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.  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.
23. [23]
    This interpretation follows the approach of this Court in Cockerill v Collins and Interchase, both noted at [19] above, regarding O 35 r 5(2) as a limited exception to the substantive right to an important common law immunity.  In Interchase, the Court held that O 35 r 5(2) did not abrogate the privilege for letters and facsimiles between the solicitors for a party and an expert for the purpose of giving legal advice in relation to, or obtaining evidence to be used in, litigation.^[14]  The Court held that such documents were not statements or reports of an expert, within the meaning of the rule.^[15]
24. [24]
    It is also consistent with the decision in State of Queensland v Allen.^[16]  Dealing with a different statutory provision, the Court held that a solicitor’s file notes of discussions about an anticipated negligence claim, held with doctors, one of whom prepared a statement, were not “reports” within the ordinary meaning of the term and not “investigative reports” within the meaning of s 30(2) of the Personal Injuries Proceedings Act 2002 (Qld).^[17]
25. [25]
    At the October 2021 conference, the purpose of asking Mr Giles for his “initial feelings” was to enable the appellants’ solicitors and counsel to provide confidential legal advice about the pending litigation.  The circumstances indicate the communication of Mr Giles’s opinion about the Sargent & Markar reports was privileged.
26. [26]
    Rule 212(2) does not abrogate the appellants’ right to resist producing such a document to the respondents.  It is not a statement or report of an expert, within the ordinary meaning of the words.  There is no evidence to found a conclusion that the note was made by the appellants’ solicitors as a statement or report of an expert.  Nor that it was made as a draft of such a document.^[18]
27. [27]
    The note of the communication would be the subject of a valid claim of legal professional privilege, arising from the essential purpose for which the document was brought into existence.

Appeal ground 2 – Did the primary judge err in concluding that the appellants are taken to have waived privilege in any file note recording Mr Giles’s opinion by their conduct before the trial?

28. [28]
    The primary judge concluded that the appellants had waived any privilege in the file notes by certain conduct between about October 2021 and April 2022.  The published judgment records the conclusion in this way:

“What is apparent here is that Mr Giles was asked to provide an oral advice in respect of his evaluation of the expert evidence of Mr Sargent and Dr Markar.  This was provided orally.  Subsequently to that, a letter of instruction was provided requesting a report including that view without reference to the fact that had been previously provided orally.  At some point in time, those instructions changed and Mr Giles did not prepare a report including that evaluation of the existing expert evidence at the time of the preparation of his initial report.  It is likely that the view he expressed orally did in effect form the basis for his approach to the hydrology modelling as reflected in his analysis of Mr Sargent’s data and methodology, as well as Dr Markar’s methodology and approach to modelling.

As there is no reference in the report to this view being provided orally to the solicitors for the [appellants] prior to the preparation of the report which include a movement away from Mr Sargent’s report and the adoption of Dr Markar’s methodology, and the subsequent amendment of that in Mr Giles’ expert view, I consider that it would be unfair if the [appellants] were able to maintain the claim of privilege over any file note which recorded that oral opinion in these particular circumstances.

So if I am incorrect about the r 212(2) applying to solicitor’s filenotes on the basis that I have previously identified, then in any event, at least to the extent of the oral opinion that has been directly identified in the evidence of Mr Giles, that document would need to be disclosed.”^[19]

29. [29]
    In Mann v Carnell,^[20] the majority explained waiver of legal professional privilege in these terms:

“Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. …

Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is ‘imputed by operation of law’. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege.  … What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.”^[21]

30. [30]
    With respect, the primary judge’s conclusion – that the absence of any reference in Mr Giles’s report to having provided an earlier oral opinion to the appellants’ solicitors made it unfair if the appellants were to maintain their claim of privilege – seems an example of a waiver said to be brought about by “some overriding principle of fairness operating at large.”
31. [31]
    We would adopt the more robust approach to waiver favoured by Keane JA in Watkins v State of Queensland:^[22]

“It must be said, however, that the broad proposition that waiver will be imputed to ensure equality of advantage would mean that, in every case where an expert report is based on instructions as to the factual basis on which expert opinion is sought and the report is relied upon by the party that commissioned it in relation to the negotiation of a legal claim, the other party would have “a right” to see those instructions.  There are reasons of principle and authority why I am unable to accept that broad proposition.  In terms of principle, it seems to be inconsistent with the High Court’s insistence upon the substantive nature of the right to confidentiality involved in legal professional privilege, that the right can be treated as so fragile as to be susceptible of abrogation in consequence of a judicial impression that the other party would be better informed than he or she might be if the confidential information were not provided.  It is in the nature of things that a party who enjoys a right to keep information relevant to a forensic contest confidential will also enjoy an advantage over that party’s opponent: the mere existence of that advantage cannot be a reason for the abrogation of the right.  It is the abuse of the right by conduct apt to confuse or deceive the opponent which is the basis for an imputed waiver of privilege.”^[23]

32. [32]
    The respondents submitted that her Honour relied on a more extensive list of conduct: Mr Giles providing an oral opinion; followed by the appellants’ solicitors requesting a written opinion; followed by them withdrawing the request; the solicitors requesting a report to be tendered in Court; and Mr Giles not referring in that report to his earlier oral opinion.  This conduct was not inconsistent with maintaining the confidentiality of the privileged communications.  It was not apt to confuse or deceive the respondents.^[24]  By these acts, individually or collectively, the appellants did not present an unfair, partial, or misleading case to the Court, to the prejudice of the respondents, of the kind described in Attorney-General (NT) v Maurice^[25] or Goldberg v Ng.^[26]
33. [33]
    It follows that the identified conduct did not amount to a waiver of privilege by the appellants.

Notice of contention – Did the appellants waive privilege over the notes by taking no objection to the cross-examination of Mr Giles on 12 May 2023?

34. [34]
    In the appeal, the respondents filed a notice contending that the primary judge’s decision should be affirmed on the ground that the appellants had waived privilege in relation to the notes recording Mr Giles’s opinions, having done so by Mr Giles giving evidence of the opinions he offered, without the appellants taking any objection.
35. [35]
    Applying Mann v Carnell, in Osland v Secretary, Department of Justice,^[27] the High Court summarised the process for deciding whether privilege had been waived in this way:

“It reflects a judgment that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Such a judgment is to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances.”^[28]

36. [36]
    The respondents’ notice of contention requires careful consideration of Mr Giles’s cross-examination.  Early in the cross-examination, Mr Giles told the Court: that he had considered the differences between Mr Sargent and Dr Markar, by way of a peer review; that he had provided a “verbal opinion” about who should be preferred; so that, by 1 November 2021, the appellants’ lawyers knew his opinion because he had expressed it verbally.^[29]
37. [37]
    The exchanges extracted below occurred later in the cross-examination.  They immediately follow Mr Handran KC referring Mr Giles to a letter from the appellants’ solicitors dated 16 December 2021, enclosing two USB devices with Dr Markar’s hydrology data and the appellants’ expert survey data:

“Mr Handran:How was it that you came to request this information, given that you’ve done your – you’ve done some sort of review which you’ve expressed opinion on before the 1^st of November? You then get given the letter on the 1^st of November to do something for the purposes of the mediation.  You say you don’t do that.  How is it that we get to, by now about three weeks after the mediation and out of the blue hydrology data, and a survey report gets sent to you?

Mr Giles:Well, if I can, if I can explain the progression of the matter.  I was initially asked with the intent of providing a peer review of the reports prepared by Mr Sargent and Dr Markar.  That progressed to a point of a verbal discussion about my initial feelings about, about those reports, and then very rapidly it progressed to a decision that I would then prepare a report which resulted in the reports which we’re discussing today.  But as part of that discussion, the questions were, ‘Well, how do we go about producing a report?’  And I’m certain my response would have been, ‘The best approach is to use Dr Markar’s model as a base.  Can we have Dr Markar’s model?’

Mr Handran:What was your opinion about Mr Sargent’s report?

Mr Giles:It was – in summary, the difficulty with Mr Sargent’s report was that he used a piece of software that is now not widely used, so you had inherent differences between the results and the methodologies that were applied by Mr Sargent and Dr Markar.  And I did find Mr Sargent’s approach and his presentation results somewhat confusing to understand.

Mr Handran:So was the effect of your opinion that you didn’t think that Mr Sargent’s opinions were sustainable?

Mr Giles:I felt that the information that he produced and the way he produced it didn’t provide a clear picture.

Mr Handran:So to go back to the question that you were asked, you didn’t think that his opinion was preferable?

Mr Giles:I considered some of his opinions believable, but I was concerned about the data he was using to support those opinions.

Mr Handran:So is the answer that no, you didn’t think his results were preferable?

Mr Giles:Yes.”^[30]

38. [38]
    The appellants submit that, in these answers, Mr Giles disclosed only what he “would have” said and not what he recalled saying at the conference.  This submission relies on Mr Giles’s answer to the first of these questions.  The next four pairs of questions and answers were certainly about the opinion Mr Giles expressed about Mr Sargent’s report at that conference.  The better view is that even in the first answer Mr Giles gave his recollection of what was said at the October 2021 conference with counsel and solicitors.  The appellants’ characterisation of this evidence is not accepted.
39. [39]
    Mr Giles has now given his recollection of what he said at the conference.  The appellants raised no claim of legal professional privilege in respect of any of these questions put to Mr Giles in cross-examination.  In this way, the appellants permitted Mr Giles to give evidence of what he was asked by the appellants’ legal advisers and what he said in reply.  Once Mr Giles had given this evidence, these communications were no longer confidential.
40. [40]
    Even if the appellants did not subjectively intend to waive their privilege, by allowing Mr Giles to give evidence of the conference the appellants acted inconsistently with maintaining the privilege.  In the context and circumstances of the case, the respondents should be able to test Mr Giles’s evidence against the contemporaneous notes of the solicitors.
41. [41]
    It follows that, on 12 May 2023, by failing to object to the respondents’ questions to Mr Giles (or to otherwise assert their privilege), the appellants impliedly waived the privilege over the communications between their legal advisers and Mr Giles at the October 2021 conference.
42. [42]
    The appellants cannot now maintain a claim of legal professional privilege for any such notes.

Final disposition

43. [43]
    The appeal should be dismissed with costs.