Solicitor's file note of opinions expressed by an expert held by Queensland Court of Appeal not to amount to a "statement or report of an expert"

In brief

The case of Enkelmann & Ors v Stewart & Anor [2023] QCA 155 concerned an appeal to the Queensland Court of Appeal (Court of Appeal) against the decision of the Supreme Court of Queensland (Supreme Court) in the case of Enkelmann & Ors v Stewart & Anor [2023] QSC 111 which would require the disclosure of a solicitor's file note of a discussion between the solicitor and an expert about the expert's preliminary views in respect of a report prepared by other experts in circumstances where it was alleged that legal professional privilege applied to the file note.

The Supreme Court held that legal professional privilege did not apply to the file note on the following alternative bases:

• The file note records a "statement or report" of an expert on an issue directly relevant to the pleadings and is captured by rule 212(2) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), which states "A document consisting of a statement or report of an expert is not privileged from disclosure", and thus any legal professional privilege is abrogated (at [65]).

• Alternatively, it would be unfair to maintain a claim of privilege over the file note in circumstances where the expert expressed an oral opinion to the solicitor about a report of another expert, which opinion was recorded in the file note but not in the expert's report (at [77]).

The Court of Appeal disagreed with the Supreme Court's reasoning in respect of both alternatives bases and held that a file note that reports or notes an opinion expressed by an expert at a conference does not fall within rule 212(2) of the UCPR (see [22] and [32]).

The Court of Appeal held that, in this case, legal professional privilege was impliedly waived because the expert's recollection of the conference and the expert's opinion said to be recorded in the file note were expressed orally in evidence and the party seeking to rely on the privilege did not object to the questions asked of the expert during the course of the expert's evidence (see [39] to [42]).

Background

In 2016, the plaintiffs commenced proceedings for claims in nuisance and negligence against the defendants. The substance of the plaintiffs' claims is that work on and modifications to the respondents' land had flooding impacts on the plaintiffs' land.

The plaintiffs engaged a hydrology expert (First Expert) to give expert evidence about hydrology issues associated with their claims, and during the course of the proceedings engaged a new hydrology expert (Second Expert). After the engagement of the Second Expert, the plaintiffs changed their pleading consistent with that expert's opinions and no longer relied on the evidence of the First Expert.

The defendants made an application to the Supreme Court seeking the disclosure of file notes taken by the plaintiffs' solicitors in respect of any statement of advice given by the Second Expert and any document, including file note discussions, which may reflect the Second Expert's state of mind during his engagement as an expert for the plaintiffs. The plaintiffs argued that legal professional privilege protected documents of the type sought from being disclosed to the defendants.

Supreme Court finds legal professional privilege is abrogated

After a consideration of the disclosure rules under the UCPR and the meaning of the term "document" in schedule 1 of the Acts Interpretation Act 1954 (Qld), the Supreme Court held that a file note of a discussion between the plaintiffs' solicitors and the Second Expert which included notes of the Second Expert's opinion about reports of the First Expert and the hydrology expert engaged by the respondents was "a document consisting of a statement or report of an expert" and thus was not privileged from disclosure in accordance with rule 212(2) of the UCPR.

The Supreme Court held that if it is wrong about the application of rule 212(2) of the UCPR, then it would be unfair to permit the plaintiffs to rely on legal professional privilege because the Second Expert's evaluation of the reports of the First Expert and the hydrology expert engaged by the respondents, which was expressed orally to the plaintiffs' solicitors, formed the basis of the Second Expert's approach and movement away from the First Expert's report.

Court of Appeal overturns finding about the application of rule 212(2) of the UCPR

The Court of Appeal held that a proper construction of rule 212(2) of the UCPR is that it applies to "…a document brought into existence to be a statement or report of an expert…", including where that statement or report is taken or prepared by a solicitor and where it is in draft form (at [21]).

The Court of Appeal held that the words "consisting of" in rule 212(2) of the UCPR do not extend the application of the rule to include a solicitor's file note which notes or reports an opinion expressed by an expert, and thus is not "a document consisting of a statement or report of an expert" (at [22]).

In this case, there was no evidence to suggest that the file note was prepared by the plaintiffs' solicitors as a statement or report or that it was made to be a draft report of the Second Expert (at [26]), and the file note could therefore properly be the subject of a claim of legal professional privilege.

Court of Appeal finds that legal professional privilege was impliedly waived

The Court of Appeal disagreed with the Supreme Court's finding that it would be unfair to permit the plaintiffs to maintain a claim of legal professional privilege over the file note, because the Court of Appeal did not find the conduct of the plaintiffs or the Second Expert to be inconsistent with the maintenance of confidentiality (see [30] to [33]).

Nevertheless, the Court of Appeal held that any legal professional privilege applicable to the file note was impliedly waived by the plaintiffs during evidence given by the Second Expert about what was said at the conference with the plaintiffs' solicitors. Once the Second Expert had disclosed the discussions at the conference with the plaintiffs' solicitors, the discussions were no longer confidential and thus could not be the subject of a legitimate claim of legal professional privilege (at [39]).

The Court of Appeal importantly observed that during the cross-examination of the Second Expert the plaintiffs did not object to the questions asked in respect of the conference, which was inconsistent with the maintenance of legal professional privilege and amounted to the implied waiver (see [40] to [41]).

Conclusion

The Court of Appeal held that rule 212(2) of the UCPR does not abrogate the legal professional privilege applicable to a file note prepared by a solicitor where the file note is not brought into existence to be a statement or report of an expert, but that in this case legal professional privilege had been impliedly waived by the plaintiffs who could not now maintain a claim of privilege.