Enkelmann & Ors v Stewart & Anor

This case considered whether legal professional privilege applied to file notes taken by a solicitor of a conference with an expert. The primary judge had found that privilege was abrogated by r 212(2) UCPR, and waived on the basis of considerations of fairness. The Court of Appeal unanimously concluded that privilege was not abrogated by r 212(2) UCPR, nor waived for the reasons given by the primary judge. Nonetheless, privilege had been waived by the appellant failing to object to cross-examination of the expert, in which he disclosed details about opinions expressed at the conference.

Bond, Flanagan JJA and Bradley J

1 August 2023

Background

Solicitors for the appellants took file notes of comments made by a registered professional engineer, Mr Giles, during a conference with him (“the file notes”). [1]. The comments were about the relative strengths of two written reports of other engineers, of which Mr Giles had been asked to do a “peer review”. [1].

During a trial, the respondents applied to the primary judge for an order requiring the appellants to disclose the file notes. [13]. The primary judge acceded to that application, finding that any legal professional privilege over them (as claimed by the appellants) had been abrogated by r 212(2) of the Uniform Civil Procedure Rules (“UCPR”). [17]. Further, that any privilege had been waived. [28].

This judgment concerned an appeal against the primary judge’s orders, which required disclosure of the file notes. [1]. The Court of Appeal unanimously concluded that the primary judge had erred in finding that the privilege had been abrogated by r 212(2) UCPR, or waived for the reasons her Honour had identified. [18], [33]. Nonetheless, the Court found that there had been a waiver of privilege for another reason, and so the appeal against the primary judge’s orders was dismissed. [42]–[43].

Whether r 212(2) UCPR abrogated the privilege

The Court noted that, putting aside any question of abrogation, the files notes would be the subject of a valid claim of legal professional privilege, arising from the essential purpose for which they had been brought into existence (i.e. to obtain legal advice, or for use in anticipated or pending litigation). [20], [27].

However, r 212(2) of the UCPR provides for a statutory abrogation of privilege, stating that “[a] document consisting of a statement or report of an expert is not privileged from disclosure”. The question was whether the file notes fell within this description. In this regard, their Honours considered that:

“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”. [22].

That view was said to be supported by the fact that r 212(2) only provides a “limited exception” to legal professional privilege, which is “important common law immunity”, and because such a conclusion was consistent with earlier decisions of the Court (including Interchase Corporation Ltd) v Grosvenor Hill (Queensland) Pty Ltd [No 1] [1999] 1 Qd R 141). [23]–[24].

Because the file notes were not a “statement or report of an expert, within the ordinary meaning of the words”, legal professional privilege in them had not been abrogated by r 212(2) UCPR. [26]–[27]. The primary judge had erred in concluding otherwise. [18].

Waiver of privilege – the primary judge’s reasons

The primary judge had also concluded that privilege in the file notes had been waived, including because:

“… I consider that it would be unfair if the [appellants] were able to maintain the claim of privilege over any file note which recorded [his] oral opinion in these particular circumstances”. [28].

However, the Court of Appeal noted that the relevant principle concerning waiver of legal professional privilege was described by the High Court in Mann v Carnell (1999) 201 CLR 1 as follows:

“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”. [29].

The Court of Appeal considered that, in the comments extracted above, the primary judge appeared to err in concluding that waiver had been brought about by “some overriding principle of fairness operating at large” (quoting Mann). [30].

After reviewing the relevant conduct of the appellant, their Honours considered that it had not been inconsistent with their maintaining the confidentiality of the privileged communications. [32]. Accordingly, the primary judge had been wrong to find a waiver of privilege on the grounds her Honour identified. [33].

Waiver of privilege – the Court of Appeal’s reasons

The respondents also contended that waiver of privilege in the file notes had occurred as a result of Mr Giles giving evidence of the opinions he offered under cross-examination, without the appellants taking objection. [34]. The Court of Appeal ultimately agreed there had been a waiver on this basis. 42].

Notably, under cross-examination by Mr Handran KC of Counsel, Mr Giles gave answers about the opinions he had expressed at the conference of which the file notes had been taken. [38]. The appellants raised no claim of legal professional privilege in response to any of these questions. [39]. According to their Honours:

“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”. [39].

Further, by allowing Mr Giles to give this evidence without objection, “the appellants acted inconsistently with maintaining the privilege”. [40]. It followed that there had been an implied waiver over the communications at the relevant conference, of which the file notes had been taken. [41]. Accordingly, the appellants could no longer maintain a claim of privilege over the file notes. [42].

Because the file notes were no longer privileged (albeit for reasons different to those given by the primary judge), the appropriate order was still that the file notes be disclosed. Accordingly, the appeal against the primary judge’s orders was dismissed. [43].

W Isdale of Counsel