Enkelmann v Stewart[2023] QSC 111

SUPREME COURT OF QUEENSLAND

1. [1]
   HER HONOUR: This is an application by the defendants for disclosure of what is described as “all file notes taken by Shine Lawyers in respect of any statement of advice given by Mr Giles” and also in respect of “any document which may reflect Mr Giles’ state of mind at any point of time during his engagement as an expert for the plaintiffs, including during conferences Shine Lawyers had with Mr Giles in respect of his draft opinions”.

Circumstances giving rise to the application

1. [2]
   It is necessary to consider the circumstances which gave rise to this application. Mr Giles is the hydrology expert of the plaintiffs and was giving evidence last Friday. His three reports were tendered on behalf of the plaintiffs and the defendants are in the process of cross-examining Mr Giles. Mr Giles exhibited to his expert report letters of instruction and also some letters evidencing what was provided to him as part of the brief to the expert.

1. [3]
   During cross-examination, Mr Giles was taken to a letter of 1 November 2021 in respect of instructions he had been given. Part of the instructions set out in that letter was a request that he consider two things. This has been described as a ‘peer review’.

1. [4]
   The first request was that he express a view, being to help the Court consider the differences between a report of Mr Sargent, who was the original hydrology expert retained by the plaintiffs, and Dr Markar, who is the expert retained by the defendants.

1. [5]
   As part of those instructions, Mr Giles was asked to also identify anything wrong with the accuracy of the approach taken by either Mr Sargent or Dr Markar, including their methodology, and to give an opinion about what methodology should be preferred.

1. [6]
   The expert reports which have been filed and tendered by the plaintiffs do not address those particular requests. Further, in cross-examination Mr Giles recognised that while he was instructed by that letter of 1 November, he had previously given verbal advice in relation to that very issue. So, in effect, he provided an opinion in respect of those two requests in respect of the peer review of the then existing hydrology reports verbally to Shine Lawyers, and then was subsequently asked in the letter of instruction of 1 November to address those questions.

1. [7]
   His evidence as to why he did not include his view in the report was because the matter did not progress in that manner. He indicated that he was “called off” from producing a report dealing with that aspect at some point in time that he could not recall.

1. [8]
   In cross-examination, Mr Giles does address what his opinion was in respect of Mr Sargent’s report.

1. [9]
   As a consequence of some of the answers in cross-examination by Mr Giles, the defendants called for production of documents, including the letters of instructions and documents evidencing the opinions provided by Mr Giles.

10. [10]
    At an earlier point in time, a subpoena had been issued to Mr Giles. Some documents were produced under the subpoena, but it also became apparent during the course of cross-examination that not all documents were produced.

11. [11]
    It is not necessary for me, as part of this current application, to consider the sufficiency of the compliance with the subpoena, but that may have given rise to some of the concerns in respect of the current request for further disclosure from the plaintiffs.

Background to proceeding

12. [12]
    It is also necessary to consider the factual background of this case and the importance of the instructions given to Mr Giles and also his views.

13. [13]
    This matter has been on foot for some considerable period of time. It was commenced in 2016 and had been on the supervised case list from approximately 2019.

14. [14]
    Part of the directions on the supervised case list included the provision of expert reports on the key hydrology issue.

15. [15]
    The claim concerns causes of action in nuisance and negligence. It is alleged that works or modifications to the defendants’ property caused an impact on the plaintiffs’ land in circumstances where flooding occurred. That is only a very brief overview of the claim. However, it is apparent from the plaintiffs’ statement of claim that Mr Giles’ expert opinion is pivotable to the pleaded case. The statement of claim pleads particular results from the modelling undertaken by Mr Giles.

16. [16]
    Mr Giles came into the case after the proceedings had been on foot for a number of years. The defendants submit that it was after four years, three expert reports and the preparation of a joint report, that the plaintiffs abandoned the reliance on the expert report of Mr Sargent. Mr Giles in effect produced new modelling. That is what has been incorporated into the plaintiffs’ statement of claim.

17. [17]
    At various times, the pleading has been amended and more recently, the third further amended statement of claim was challenged by the defendants before Justice Wilson in February this year. The plaintiffs’ counsel gave assurances that the case was as it had been pleaded in the third further amended statement of claim.

Progression of hydrology expert evidence

18. [18]
    It is also relevant to consider the development of the hydrology expert evidence in this matter.

19. [19]
    As indicated previously, Mr Sargent provided reports on behalf of the plaintiffs at an earlier point in time. Dr Markar on behalf of the defendants provided reports in response, including criticisms of Mr Sargent’s methodology. The reports of Mr Giles engage with the methodology for the modelling prepared by Dr Markar.

20. [20]
    In effect, the hydrology modelling has been an iterative process. It started with the modelling done by Mr Sargent. It was criticised and developed by Dr Markar in his response reports and then when Mr Giles became involved, in effect he has adopted Dr Markar’s methodology for the modelling but with further amendments as he considers necessary in the particular circumstances, to arrive at a model which he considers is the appropriate one in the circumstances. Dr Markar has engaged with Mr Giles’ reports in response.

21. [21]
    This iterative process does mean that it is important and relevant to understand the development of the hydrology reports, including the input of data that was used for the modelling and also the instructions that were given.

22. [22]
    The defendants’ application for disclosure is wider than just the oral opinion which has been referred to by Mr Giles in respect of that peer review instruction. However, that oral advice is an example of the type of document that the defendants are seeking to be disclosed by the plaintiff.

UCPR and relevant authorities

23. [23]
    The starting point for the consideration of whether the application for disclosure of the file notes is appropriate requires consideration of the disclosure rules under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).

24. [24]
    As indicated, there has been a call for production of the documents in the category which has been identified. The plaintiffs have responded by claiming privilege over the documents. There has not been an affidavit claiming privilege prepared and I do not have the benefit of any identification of a specific document which may respond to the category of documents sought. It has been asserted in submissions that any document of that nature would be subject to a valid claim of legal professional privilege.

25. [25]
    The defendants point to r 212(2) of the UCPR which states that a document consisting of a statement or report of an expert is not privileged from disclosure.

26. [26]
    In consideration of this application, it is necessary to start at a point earlier than that in the rules. Rule 211 provides that a party to a proceeding has a duty to disclose to each other party each document in the possession or under the control of the first party, and directly relevant to an allegation in issue in the pleadings. Those two aspects are central to the obligations of disclosure. If it is in the possession or under control of a party, and it is directly relevant to an allegation or matter in issue, then it should be disclosed unless there is a valid claim of privilege.

27. [27]
    It is also important at this stage to note the wide definition of “document” as defined under the Acts Interpretation Act 1954 (Qld). This includes any paper or other material on which there is writing. It includes any paper or other material on which there are marks, figures, symbols or perforations and also includes any disk, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced. So, for example, if there is an expert statement that is recorded by way of a recording of a Zoom call, or is recorded on a dictation device, that would also constitute a document and r 211 and the definition in the Acts Interpretation Act 1954 (Qld) would require it to be disclosed.

28. [28]
    Under r 212(1) of the UCPR, the duty of disclosure is expressly stated to not apply to certain categories of documents, including a document in relation to which there is a valid claim to privilege from disclosure. Subparagraph (2) provides that a document consisting of a statement or report from an expert is not privileged from disclosure.

29. [29]
    It has been recognised in cases that there is power for the Court to make such a rule abrogating the legal professional privilege that would otherwise arise in respect of such a document. This was expressly acknowledged in Interchase Corporation Limited v Grosvenor Hill (Queensland) Pty Ltd, heard by the Court of Appeal in [1999] 1 Qd R 141.

30. [30]
    The decision in Interchase is relevant to the current considerations in that it recognised that the similar rule which was then Order 35, r 5(2) was valid. Subsequent to that decision, the Court has regularly dealt with the disclosure of expert reports without that decision being challenged.

31. [31]
    It was recognised by Justice Thomas in Parr v Bavarian Steakhouse Pty Ltd [2001] 2 Qd R 196 that, in effect, rules such as the old Order 35, r 5(2) and the current r 212(2) were an inroad into the area of legal professional privilege.

32. [32]
    Reference is made in the plaintiffs’ submissions to the fact that privilege is a fundamental right and the abrogation requires clear wording and should be not given an extensive interpretation. While that submission is correct, the validity of r 212(2) has not been challenged.

33. [33]
    To the extent that r 212(2) does abrogate the privilege, it does so in clear and express terms.

34. [34]
    Subsequent to the Interchase decision, Justice Douglas in the case of Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2005] 1 Qd R 373 expressly addressed the issue of whether r 212(2) included draft statements or reports of an expert.

35. [35]
    His Honour, in that case, held that r 212(2) applied to a draft statement or report of an expert communicated to a party’s lawyers. In that case, his Honour also expressly considered arguments that, in effect, a draft statement report did not reflect the expert’s final view. That was not determinative of the issue in his Honour’s view.

36. [36]
    At paragraph 13, his Honour identified:

“In my view the answer to the question may be sought by asking whether a draft statement or report by an expert is nonetheless his statement or report even though it might not be his final view. If an expert has prepared a draft report it is still his report or statement, no doubt normally reflecting his state of mind at the time he wrote it. The fact that, after consultation with lawyers in an action, he may prepare a further report or amend the draft does not prevent the draft from meeting the description in the rules.”

37. [37]
    There has also been subsequent consideration of the rule in decisions by single judges of this Court, including in Murphy Operator Pty Ltd v Gladstone Ports Corporation Ltd [2019] 3 Qd R 255 by Justice Crow. In that case, his Honour was dealing with an argument that the abrogation of privilege in respect of expert reports in r 212(2) only applied to reports which were to be deployed in a proceeding. His Honour considered the Interchase decision and also Justice Douglas’ comments in Mitchell Contractors.

38. [38]
    Ultimately, Justice Crow rejected that argument and concluded that there was no requirement to disclose only in circumstances where it was deployed. His Honour at paragraph 104 noted that:

“If the document prepared reflects the state of mind of the expert, it is properly disclosable under r 212(2).”

39. [39]
    In the circumstances, his Honour ordered that any expert report, including drafts directly relevant to the issues in dispute on the pleadings, be disclosed.

40. [40]
    There has also been a decision of Justice Cullinane in Mazelow Pty Ltd v Herberton Shire Council [2001] QSC 250 (unreported), which provides some assistance to the considerations currently before the Court.

41. [41]
    In that case, Justice Cullinane was considering what was meant by a report or a statement of an expert. In that case:

    1. (a)
       It was submitted that the document that was the subject of the application did not contain expressions of opinion except, perhaps, in a couple of minor instances.
    2. (b)
       It was also submitted that the document did not purport to be a statement of evidence which might be given by the engineer concerned.
    3. (c)
       It was accepted that the report or statement must be concerned with matters within the areas of expertise of the expert, and that a statement by a person who appears to be an expert in some field which deals with a subject matter unrelated to that expertise did not fall within the rule.

42. [42]
    However, in that case Justice Cullinane went on to conclude that he did not think it was necessary that the report or statement be constituted wholly or substantially be expressions of opinion. His Honour gave the example that:

“… some areas of expertise may not involve expressions of opinion but rather the presentation of data established by scientific means.”

43. [43]
    His Honour also stated that the report in the case then being considered could not be: “... divorced from its surrounding circumstances.”
44. [44]
    I consider that is very similar to the position being faced here. In the case before Justice Cullinane, it involved directions given by engineers to perform works and extended time for the completion of works. His Honour recognised that the directions involved the making of judgments by engineers within their area of expertise.

45. [45]
    An issue also arose in respect of that report that it, in effect, was a summary of the history from the engineer’s perspective. It is in that respect that his Honour commented that the report was capable of being regarded as a purported justification of the position adopted by the engineers on behalf of the defendant and, thus, of the defendants’ position.

46. [46]
    At page 5, his Honour stated:

“It is true that in large measure, (although not wholly, because there are opinions expressed in a couple of places,) the report constitutesno more than a summary of factual matters which might have been prepared by a person without any expertise who had access to the records. However as I have said the statement must be considered in the light of the surrounding circumstances and it is I think, coloured by them.”

47. [47]
    In that case, his Honour concluded that the claim for privilege was not made out, and the letter containing that summary of facts and opinions was required to be disclosed. I consider that Justice Cullinane’s comments are helpful in the current application in two respects.

48. [48]
    Firstly, Justice Cullinane recognises that what is in a statement or report of an expert may be the identification of facts which are relevant in the surrounding circumstances of the proceeding. I consider that as particularly relevant in the current case where consideration is given to the development of the hydrology model through the various iterations of various experts’ reports. That is, firstly, Mr Sargent’s report, then Dr Markar’s reports in response, the different versions of those reports, and then the involvement of Mr Giles and the subsequent reports by Dr Markar. It is this iterative process which I consider is particularly relevant as surrounding circumstances in the current case.

49. [49]
    Further, Justice Cullinane recognises it may include factual matters. I consider that this aspect is also relevant in the current considerations as it is the inputs to the hydrology model which are necessary building blocks which inform the model at each stage of that iterative process. By way of example, the view expressed orally by Mr Giles at the earlier point in time prior to the development of his own hybrid model on the basis of Dr Markar’s model with various amendments was likely to be influenced by his views in respect of Mr Sargent’s model and Dr Markar’s model and the factual inputs into those. Justice Cullinane’s reasons, to that extent, are helpful.

50. [50]
    However, more broadly, the particular application brought by the defendants is not directly dealt with in any of the decisions which the Court has been referred to.

51. [51]
    The defendants refer to and rely upon the Court of Appeal decision in Watkins v the State of Queensland [2008] 1 Qd R 564. In that case, the Court of Appeal was considering the particular statutory provisions in the Personal Injuries Proceedings Act 2002 (Qld) (PIPA). In particular, sections 20 and 30 of that Act.

52. [52]
    Ultimately, the Court dismissed the appeal, concluding that the legal professional privilege did not attach to a report obtained by a party to enable that party to observe the requirements of section 20. The Court, in that case, considered two alternative approaches:

    1. (a)
       whether the report itself was not privileged at its outset as it was prepared pursuant to section 20; and also
    2. (b)
       Concepts of unfairness which may be engaged when consideration was given to section 30 of that Act in respect of a party not being obliged to disclose information or documentary material under division 1 of this division of the UCPR when it was protected by legal professional privilege.

53. [53]
    The case of Watkins v State of Queensland is not binding on me as it does not grapple with r 212(2) and whether file notes prepared by lawyers reflecting a statement ofexpert evidence by an expert are caught by r 212(2). However, the reasoning in that decision does provide some assistance as to the approach.

54. [54]
    The defendants in their submissions in respect of the application refer to the comments of Justice Keane and Justice Jerrard, in particular, in that decision.

55. [55]
    Section 27 of PIPA provides that a respondent must give a claimant copies of certain documents directly relevant to a matter, including reports and other documented material about the incident alleged to have given rise to the personal injury to which the claim relates.

56. [56]
    As indicated previously, the Court’s reasoning was in respect of two different approaches. Ultimately, it appears that Justice Keane found that the privilege never attached to a document prepared pursuant to section 20 by nature of the requirements in that section and it was not necessary to go on to consider section 30, as section 30 had no application to the report.

57. [57]
    That may be slightly different to the position under r 212 of the UCPR. Rule 212 of the UCPR, in its terms, appears to be an abrogation of legal professional privilege in that the privilege would ordinarily arise but that specific provision, in effect, abrogates it to require that the document be produced or disclosed, and it not be protected by legal professional privilege.

58. [58]
    That approach, I consider, is consistent with the comments of Justice Keane at paragraph 84 at page 602 of Watkins v State of Queensland. After considering section 20 of the PIPA, his Honour stated:

“This case is distinguishable from Interchase Corporation Limited (in liq.) v. Grosvenor Hill (Queensland) Pty Ltd (No. 1). In that case, the applicable rule of court provided that a document “consisting of a statement or report of an expert is not privileged from disclosure”. The Court held that letters (described as the Category A documents) from the solicitors for a party regarding a report commissioned from an expert remained privileged from disclosure even though the relevant rule of court abrogated that privilege in the case of the report itself.”

59. [59]
    That final phrase, I consider is consistent with the existence of the privilege but also that r 212(2) abrogates that privilege in respect of the report itself.

60. [60]
    The argument in Interchase also was whether the abrogation of the privilege in respect of the report itself had the flow-on consequence that communications with the expert were, in effect, automatically also not privileged. The Interchase case recognised that, in effect, confidential communications between solicitors and the expert remained privileged for matters such as whether instructions needed to be provided. Other principles in respect of the concept of fairness govern whether those communications need to be disclosed or not.

61. [61]
    In the circumstances, I consider that the appropriate approach to the application today is to consider whether documents in the category sought to be disclosed fall within the reading of r 212(2) as being an abrogation of the privilege in respect of the report or statement itself. The question then is what is constituted by the statement or report of an expert.

62. [62]
    Justice Jerrard in Watkins v State of Queensland also provides some comments in respect of what constitutes a report as a matter of statutory construction, which may assist in the considerations in the current application.

63. [63]
    In that case, there was a submission that a solicitor’s file note recording information communicated orally was not caught by the term “reports or other documentary material”. Justice Jerrard recognised that the note recording information - in that case, of the circumstances of the claimant’s birth - constituted a report about the alleged incident would fall within the documents under section 27(1) of PIPA that were required to be disclosed, and in effect, the legislation made legal professional privilege irrelevant to the obligation to disclose them.

64. [64]
    Those comments tend to support that a file note of a statement or report of an expert communicated orally would be caught within the definition of “a statement or report”. The key issue in the application of r 212(2) is whether a particular document or category of documents can be properly characterised as consisting of a statement or report of an expert. Not every file note prepared by a solicitor in respect of the engagement of an expert would be caught by r 212(2).

65. [65]
    However, if there is a file note or other document considering the wide definition of “document” in the Acts Interpretation Act 1954 (Qld), which records a statement or report of an expert, then that would be caught by r 212(2) and it would not be privileged from disclosure. 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. Further, it does not only incorporate reports actually drafted or prepared by the expert.

66. [66]
    To imply such a limitation goes beyond what is in the natural reading of the words in r 212(2). Clearly, draft reports prepared by an expert would fall within the authority and the reasoning of Justice Douglas in Mitchell Contractors v Townsville- Thuringowa Water Supply.

67. [67]
    However, draft reports or draft statements of opinion or summaries of fact relied upon by an expert, picking up the reasoning of Justice Cullinane, would also fall within what is incorporated by a document consisting of a statement or report of an expert for the purposes of r 212(2). 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.

68. [68]
    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. However, it is impossible for me in the current circumstances to provide a ruling in respect of whether all or part of a document must be provided as the document has not been produced to the Court and further, there has been no affidavit claiming privilege in respect of any file notes which do exist and would fall within the definition of a document consisting of a statement or report of an expert.

69. [69]
    The defendants in their application also seek disclosure of any document which reflects the state of mind of Mr Giles. While that does pick up the comments of Justice Crow in Murphy Operator, I do not consider that it would be appropriate to order in the terms requiring disclosure of any document “reflecting a state of mind of an expert” as that does not reflect what is in r 212(2).

Alternative basis regarding file note of oral opinion of Mr Giles

70. [70]
    If I am wrong about file notes of solicitors being a document consisting of a statement or report of an expert within r 212(2), in respect of the particular circumstances of the oral advice that has been indicated by Mr Giles that was given in respect of the peer review, I consider that there would be an alternative basis to require disclosure of at least file notes in respect of that oral opinion to be disclosed.

71. [71]
    The Court of Appeal in Watkins v State of Queensland did not accept that, in the circumstances of that case, that the concepts of unfairness would require the documents to be disclosed.

72. [72]
    However, reference is made to the basis upon which there may be a waiver of legal professional privilege imputed on the basis of fairness. This includes requiring that a party should not abuse privilege so as to disadvantage the other party forensically. This included at [57] reference to the decision in Goldberg v Ng (1995) 185 CLR 83 where their Honours Deane, Dawson and Gaudron outlined the circumstances including that:

“When some such 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’.”

73. [73]
    That case also made reference to the comments of Gibbs CJ in Attorney-General (NT) v Maurice (1986) 161 CLR 475 as establishing that:

“… the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production.”

74. [74]
    Justices Mason and Brennan in Maurice also stated:

“The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication.”

75. [75]
    Their Honours went on:

“… fairness will usually require that waiver as to one part of protected communication should result in waiver as the rest of communication on that subject matter.”

76. [76]
    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 that 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 his methodology, as well as Dr Markar’s methodology and approach to the modelling.

77. [77]
    As there is no reference in the report to this view being provided orally to the solicitors for the plaintiff 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 plaintiffs were able to maintain the claim of privilege over any file note which recorded that oral opinion in these particular circumstances.

78. [78]
    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.

Form of order

79. [79]
    I will hear further from the parties as to the appropriate order. But in the circumstances, I consider that an order would be required that is in more precise terms than what is identified in paragraph 1 of the defendants’ outline of submissions.

80. [80]
    I will hear further from the parties, but I consider that an order along the following lines may be appropriate:

1. That the plaintiffs disclose any document in the possession or under the control of Shine Lawyers being a statement of Mr Giles, the plaintiffs’ hydrology expert directly relevant to an issue on the pleadings, including, but not limited to:

1. (a)
   Any file notes recording statements of Mr Giles in respect of the peer review of Mr Sargent’s and Dr Markar’s report as described in the letter of instructions dated 1 November 2021, whether provided before or after that date; and

2. (b)
   Any file notes recording statements of Mr Giles being opinions and summaries of factual matters.