Legal Professional Privilege: Expert Opinions & Solicitors File Note

Setting the scene

In the recent case of Enkelmann & Ors v Steward & Anor [2023] QCA 155, the Plaintiffs sued the Defendants for damage to its property caused by flooding, allegedly due to work or modifications to the Defendant's property.

Both parties engaged various experts. Mr Sargent was the original hydrology expert for the Plaintiff who conducted modelling. His opinion and methodology were criticised by the Defendant's expert Dr Markar. Dr Giles was then brought in as a hydrology expert by the Plaintiff to replace Mr Sargent, who proceeded to adopt Dr Markar's methodology for the modelling but with some further amendments. It was Dr Giles' opinions and modelling upon which the Plaintiff relied.

Three reports of Mr Giles were tendered at trial. In the letters of instructions annexed to his reports was a request for the expert to consider:

• any issues with the accuracy of the approaches taken by either Mr Sargent or Dr Markar, including their methodology; and
• what methodology should be preferred.

Mr Giles' reports addressed neither. During cross-examination, Mr Giles advised that he had provided this advice verbally in a 'peer review' prior to the letter of instruction being sent to him. Still, he was then "called off" from producing a report dealing with those issues. The Defendants called for the production of documents, including the letters of instruction and documents evidencing the opinions provided by Mr Giles verbally. The Plaintiffs responded by claiming privilege over the documents.

The Application

The Defendant brought an application for the disclosure of all file notes taken by Shine Lawyers, the Plaintiffs' solicitors, in respect of:

• any statement of advice given by Mr Giles; and
• 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.

The Rules

Uniform Civil Procedure Rules 1999 (QLD)

Rule 211 provides that any document in the possession or under control of a party that is directly relevant to an allegation or matter in issue should be disclosed unless, given rule 212 (1), there is a valid claim of privilege.

Rule 212(2) says that a document consisting of a statement or report of an expert is not privileged from disclosure.

The Trial Decision

Her Honour Justice Williams held that 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 that is directly relevant on the pleadings. Her Honour went further and said it does not expressly need to be the expert's opinion that is noted either, but any fact that forms the basis for an opinion was also considered relevant. Her Honour also gave consideration to the notion of fairness and the need to prevent a party from using privilege to disadvantage the other party. Her Honour concluded it would be unfair if the Plaintiffs were able to maintain the claim of privilege over any file note which recorded that oral opinion. Accordingly, Her Honour, therefore, found that in accordance with r 212(2), the file notes needed to be disclosed.

The Court of Appeal

On Appeal, it was held that the primary judge erred in making the order for the disclosure of the notes. The Court reiterated that legal professional privilege is an important common law immunity preventing the disclosure of confidential communications between a client's lawyer and a third party when made for the benefit of the client. The Court held that legal professional privilege may be claimed to resist the disclosure of documents that would reveal communications made for the dominant purpose of giving or obtaining legal advice.

Accordingly, the Court said that if there was no statutory abrogation or waiver, the privilege would protect the file notes from production because they were assumed to be made for the dominant purpose of: communicating confidential legal advice to the appellants; for briefing Counsel to provide their advice; or recording the solicitors' work done for the benefit of the appellants.

The Court of Appeal considered the effect of r 212(2) in determining whether there was any statutory abrogation or waiver. It concluded that only rights in respect of a statement or report of an expert are abrogated - whether the statement or report was taken by a solicitor or prepared by the expert and included any draft statement or report. The Court said the words "consisting of" do not extend the scope of the rule to abrogate privilege in respect of any document that is not a statement or a report of an expert - such as a file note. The Court concluded that such file notes recording the opinion expressed by an expert at a conference is, therefore, not a document that falls within the meaning of r 212(2).

Ultimately, the appeal failed on the basis that privilege had been waived when the expert gave evidence in cross-examination about his recollection of what he said in that conference, and the appellants allowed the expert to do so without objection. The Court said that while there was indeed a valid claim of privilege, by failing to assert their privilege during cross-examination of the expert, the appellants impliedly waived privilege over the communications.