Note: this case concerns the Uniform Civil Procedure Rules in force in Queensland. The issue of whether a document consisting of a statement or a report of an expert is not privileged from disclosure may differ to the requirements of other courts in other jurisdictions.

This is an appeal from the decision in Enkelmann v Stewart [2023] QSC 111. In that decision, Williams J ordered the appellants to disclose any statements directly relevant to the issue on the pleadings of one of their experts, Mr G. (You can read our update about the decision at first instance here.)

Expert evidence

The relevant documents consisted of notes of oral comments made by Mr G in a conference in October 2021 with the appellants’ solicitors and counsel. Mr G had undertaken a “peer review” of the reports of two other engineering experts, Mr S (also retained by the appellants) and Dr M, who was retained by the respondents (the file notes).

The appellants argued that the file notes were the subject of legal professional privilege as they had been prepared for the dominant purpose of the provision of legal advice or use in pending legal proceedings.

The respondents submitted that any privilege in the file notes had been abrogated by r 212(2) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), or if it had not, privilege had been waived.

Findings on appeal

The primary judge construed r 212(2) UCPR as abrogating the privilege protecting a solicitor’s note of an opinion or summary of facts given by an expert in a conference with legal advisers on the basis that the rule extended to a solicitor’s file note recording the “opinion of an expert on an issue which is directly relevant on the pleadings”.

The Court of Appeal unanimously disagreed with the primary judge’s conclusion. Rule 212(2) UCPR only abrogates privilege in respect of a statement or report of an expert.

Specifically, a solicitor’s file note of a conference with an expert which notes or reports an opinion expressed by the expert at the conference, is not a document consisting of “a statement or report of an expert”, within the ordinary meaning of those words. The phrase “consisting of” in r 212(2) did not extend the scope of the rule to apply to a document that was neither a statement nor a report of an expert. [22]

The purpose of seeking Mr G’s “peer review” of the other expert reports was to enable the appellants’ solicitors and counsel to provide confidential legal advice about the pending litigation. This, in turn, indicated that the communication of Mr G’s opinion about the reports of Mr S and Dr M during the October 2021 conference was privileged. [25]-[27]

As to the finding of the primary judge that the appellants had waived any privilege in the file notes by certain conduct between October 2021 and April 2022, the court found that conduct was not inconsistent with maintaining the confidentiality of the privileged communications. By these acts, the appellants did not present an unfair, partial, or misleading case to the court, to the prejudice of the respondents, and did not waive privilege. [32]-[33]

However, by failing to object or to otherwise assert their privilege to the questions put to Mr G during cross-examination, the appellants impliedly waived the privilege over the file notes taken at the October 2021 conference. [41] By allowing Mr G to give evidence of what he was asked by the appellants’ legal advisers and what he said in reply in the October 2021 conference, those communications were no longer confidential ([39]) and the appellants could not maintain a claim of legal professional in respect of the file notes. [42]

The appeal was dismissed.

Key takeaways

• Lawyers and experts must not assume that all documents and communications as between them will be protected by legal professional privilege. In some jurisdictions, such as Queensland, privilege over statements or reports of experts may be abrogated by statutory instrument.
• Rule 212(2) of the UCPR (Qld) does not extend to abrogate privilege in a solicitor’s file note recording a conference with an expert as such a document does not constitute “a statement or report” of the expert.
• However, privilege will be waived in respect of the file note if no objection is taken to the questions put to the expert about the content of the file note during cross-examination.

 

Read the full decision here.