Overview

Two important points to take away from the Court of Appeal’s decision in Enkelmann v Stewart [2023] QCA 155 are:

(a)     Legal professional privilege attaching to a solicitor’s file note of a conversation with an expert retained in civil litigation, in which there is recorded an expert’s opinion or statement, is not abrogated by rule 212(2) of the UCPR because, generally, it will not be a document created to be a statement or report of that expert; and

(b)     A party might inadvertently waive that privilege, and those file notes might become disclosable, if objection is not made to questions or evidence given in cross-examination concerning that otherwise privileged conversation.

Background to the decision

In civil proceedings to which Part 2 of Chapter 7 of the UCPR applies (see rule 209), a party has (by rule 211) a duty to disclose to each other party each document in their possession or under their control which is directly relevant to an issue in the proceeding. That duty of disclosure does not apply to documents in relation to which there is a valid claim to privilege from disclosure save, relevantly by rule 212(2) of the UCPR, a “document consisting of a statement or report of an expert”.

The operation of rule 212(2), and its predecessor, has long been the subject of dispute between litigants. When determining the proper construction of that rule and comparable rules abrogating legal professional privilege, the Court has wrestled with policy issues concerning the proper scope of that privilege when attaching to communications between a lawyer and an expert. For instance, in Interchase Corporation Ltd (In Liq.) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141, in the context of considering a claim of privilege over documents created or used by an expert to form an opinion, Pincus JA noted (at 148) that “excessive enthusiasm for the achievement of one desirable end—that people may be free to deal privately with legal advisors—may inhibit achievement of others which are also desirable—such as that trials, civil and criminal, may reach fair and true results”. In Parr v Bavarian Steak House Pty Ltd [2001] 2 Qd R 196, Thomas JA observed (at 202 [25]) that upon the Court’s ordinary construction of rules 547 and 548 of the UCPR, such that they could not be read down to exclude documents subject to legal professional privilege, that there “may be both positive and negative consequences of such rules. The negative aspects include loss of trust between solicitor and client. However, on the proper construction of the rules in their present form that is the consequence”.

In Murphy Operator Pty Ltd v Gladstone Ports Corporation Ltd [2019] 3 Qd R 255, Crow J rejected a submission that rule 212(2) of the UCPR applied only to expert evidence once that evidence had been deployed by a party in the proceeding. After consideration of the scheme established by Part 5 of Chapter 11 of the UCPR for expert evidence, including the requirement by (now) rule 429I for early disclosure of a report upon which a party intended to rely in the proceeding and the duty of an expert prescribed by (now) rule 429F, Crow J noted (at [83]) the pre-existing and independent operation of rule 212 and held (at 284 [103]) that rule 212(2) “ought to be confined to require disclosure of ‘all reports and statements of an expert’ regardless of whether those reports are said to be final reports or statements or not”. Accordingly, (at 284 [104]) any report or statement, or drafts thereof, were disclosable under rule 212(2) “if the document prepared reflects the state of mind of the expert” and such a document was disclosable whether or not it had been “deployed” by a party in that litigation. In so finding, Crow J adopted the approach to the construction of rule 212(2) of the UCPR taken by Douglas J in Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2005] 1 Qd R 373, which was that the abrogation of privilege provided therein was to be confined to its ordinary meaning “namely, whether any particular document can be said to be a statement or report of an expert”. A similar approach to the construction of section 20 of the Personal Injuries Proceedings Act 2002 was adopted by Keane JA in Watkins v State of Queensland [2008] 1 Qd R 564, 594-5 [63]-[66].

On the issue of waiver, in Goldberg v Ng (1995) 185 CLR 83, Deane, Dawson and Gaudron JJ said, as to general propositions concerning the issue of imputed waiver of legal professional privilege, that “the basis of such an imputed waiver will be some act or omission of the persons entitled to the benefit of the privilege. Ordinarily, that act or omission will involve or relate to a limited actual or purported disclosure of the contents of the privileged material. 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’”.

In Attorney-General (NT) v Maurice (1986) 161 CLR 475, Dawson J noted (at 497-498) that “legal professional privilege is concerned with protecting the confidentiality of a relationship and if that confidentiality is abandoned by a particular disclosure it may be necessary in fairness, whether further disclosure was intended or not, to require disclosure extending beyond the particular communication … The cases are not entirely consistent and perhaps what is fair by way of disclosure must ultimately depend upon the relevant circumstances”. In Mann v Carnell (1999) 201 CLR 1, Gleeson CJ, Gaudron, Gummow and Callinan JJ observed (at 13 [29]) that disputes over implied waiver usually arose from the need to decide whether particular conduct was inconsistent with the maintenance of the confidentiality which the privilege is intended to protect and, making reference to Benecke v National Australia Bank (1993) 35 NSWLR 110, said that “[w]hat 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 confidentiality; not some overriding principle of fairness operating at large”.

The decision

In Enkelmann, the proceeding concerned the plaintiffs’ allegation that improvements carried out to the defendants’ land had altered the natural flow of surface water and caused flooding on, and damage to, the plaintiffs’ farmland. They claimed damages for nuisance or negligence.

Each of the plaintiffs and the defendants obtained expert evidence on the hydrology of surface water and each expert had produced a report or reports. The plaintiffs engaged a second expert hydrologist to carry out a peer review of those reports. That second expert conveyed his views orally in conference with the plaintiffs’ solicitors in October 2021. The instruction to perform a peer review was conveyed in a letter from the plaintiffs’ solicitors to that second expert dated 1 November 2021. However, before that second expert prepared any report containing any such peer review, in a further letter from the plaintiffs’ solicitors dated 23 March 2022, his earlier instructions were withdrawn and he was instructed to prepare a report for the Court on allegations in issue in the proceeding. The second expert produced that report to which he attached the said letters of instruction.

During cross-examination at trial, the second expert explained that he had not prepared a report in answer to the instructions contained in the said letter dated 1 November 2021 but had discussed his “initial feelings” about the earlier expert reports with the plaintiffs’ solicitors and counsel in conference. Later in that cross-examination, the second expert was asked about the circumstances in which hydrology and survey data had been given to him in December 2021. The following was then exchanged:

It does not appear that examining counsel made any objection—even belated objection—to the second expert’s evidence in cross-examination about his opinions, which were those expressed in conference to the plaintiffs’ solicitors and counsel.

Subsequently, the defendants applied to the learned primary judge for an order requiring the plaintiffs to disclose the plaintiffs’ solicitors’ file notes of their conference with the second expert on the grounds that any legal professional privilege in those file notes had been abrogated by rule 212(2) or, alternatively, that the plaintiffs had waived any such privilege.

The primary judge held that rule 212(2) extended to a solicitor’s file note which recorded the opinion of an expert because that rule applied to a document that “incorporates the opinion, being the statement or report of an expert” irrespective of the provenance of the document. A similar conclusion had been earlier expressed by Dalton J (as her Honour then was) in Landel Pty Ltd v Insurance Australia Ltd [2021] QSC 247, [25] fn 7. On waiver, the primary judge held that the plaintiffs had waived any privilege in the file notes in circumstances where the plaintiffs had withdrawn instructions to the second expert to produce a report addressing opinions earlier conveyed to them in conference and those opinions were not included in the report ultimately produced by that second expert. The primary judge considered 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”.

The Court of Appeal disagreed with the primary judge’s construction of rule 212(2) and held that the rule only abrogated privilege that would otherwise attach to “a document brought into existence to be a statement or report of an expert, whether taken by a solicitor or prepared by the expert or prepared by a solicitor at the dictation of the expert”, which would include drafts of those documents, and not to documents, like file notes, which recorded what an expert had said in conference. The Court of Appeal construed rule 212(2) by giving the words therein plain meaning and “as a limited exception to the substantive right to an important common law immunity” (at [23]). That construction was consistent with earlier decisions of the Court of Appeal in Interchase Corporation Ltd (In Liq.) v Grosvenor Hill (Queensland) Pty Ltd (No 1) (op cit), Cockerill v Collins [1999] 2 Qd R 26 and State of Queensland v Allen [2012] 2 Qd R 148.

In Interchase, Thomas JA(at 159), with whom de Jersey J agreed, held that Order 35, rule 2 of the Rules of the Supreme Court (the predecessor to rule 212(2) of the UCPR) did not apply to “[l]etters, facsimiles and enclosures” passing between solicitors and an expert, drafts of valuations, working papers, and other documents collated by the expert for use in forming his opinion, because “[q]uite simply none of those documents or classes of documents appears to be a statement or a report. The documents relate to the eventual report, but go no further than this. They therefore fail to fall within the rule”.

In Cockerill, Fitzgerald P, with whom McPherson JA and Ambrose J agreed, noted (at 28) that “[l]egislation which would adversely affect legal professional privilege if given its literal effect is read down so as to avoid that result unless the language used clearly reveals an intention to do so” and that a “similar approach must be adopted to the construction of subordinate legislation”. Now see Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, 553, [11] and Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 259, [15].

In Allen, the Court of Appeal considered the proper construction and scope of section 30 of the Personal Injuries Proceedings Act 2002 (Qld), which relevantly abrogated legal professional privilege in, and required disclosure of, “investigative reports, medical reports and reports relevant to the claimant’s rehabilitation”. In that case, the primary judge relevantly found that solicitor’s file notes, and other documents obtained as a result of inquiries made of doctors regarding an incident, were “investigative reports” within that section. On appeal, Fraser and White JJA and Fryberg J, in separate reasons, held that solicitor’s file notes were not “reports”, “investigative reports” or “medical reports” within section 30. Fraser JA (at 156 [27]) noted that the contrary conclusion would result in the widespread abrogation of privilege in witness statements taken by solicitors for use in existing or anticipated litigation in circumstances where there was no indication that such a result was intended. White JA (at 167 [65]-[67]) observed that the grammatical meaning of the word “report” included an “account given or opinion expressed on some particular matter … a formal statement of the results of an investigation carried out by a person” and held that there “is no basis for concluding that the two file note reports of conferences with the doctors prepared by the solicitors could be described as ‘reports’, still less investigative reports”. Fryberg J (at 171 [88]-[90]) did not exclude the prospect that a file note could be a “report” but concluded that, having looked at the file notes, “[o]n their face they are not reports in the ordinary sense of that word. Moreover there is no evidence of the precise circumstances under which they were created and no foundation for inferring that the solicitor who created them was making a report which has been recorded in the form of a file note. A solicitor would not ordinarily be making a report when preparing or filing a file note”.

On waiver, the Court of Appeal in Enkelmann adopted (at [35]) the approach favoured by Keane JA in Watkins v State of Queensland [2008] 1 Qd R 564 that the mere existence of some forensic advantage over an opponent as a result of the confidentiality involved in legal professional privilege was no reason for abrogation of that right. “It is the abuse of the right by conduct apt to confuse or deceive the opponent which is the basis for an imputed waiver of privilege”. (Watkins, 590 [55].) The Court of Appeal disagreed with the primary judge’s conclusion on waiver and held (at [32]) that the said conduct by the plaintiffs’ solicitors and the second expert was not inconsistent with maintaining the confidentiality of the privileged communications, was not apt to confuse or deceive the defendants, and “did not present an unfair, partial, or misleading case to the Court, to the prejudice of the [defendants], of the kind described in Attorney-General (NT) v Maurice or Goldberg v Ng”.

However, by a notice of contention on the appeal, the defendants submitted that the Court of Appeal should affirm the primary judge’s decision on the ground that the plaintiffs had waived privilege “in relation to the notes recording [the second expert’s] opinions, having done so by [the second expert] giving evidence of the opinions he offered, without the [plaintiffs] taking any objection” (at [34]). In accepting this submission and concluding that the plaintiffs could not maintain the claim of legal professional privilege over any file notes concerning what had been said between the second expert and the plaintiffs’ solicitors and counsel during their conference in October 2021, the Court of Appeal held (at [41]) that the plaintiffs had impliedly waived that privilege by failing to object to the said questions or to otherwise assert their privilege. The Court of Appeal held (at [39]-[40]) that those communications were no longer confidential and, in any event, by failing to object or assert privilege the plaintiffs acted inconsistently with maintaining the privilege and the defendants “should be able to test [the second expert’s] evidence against the contemporaneous notes of the solicitors”. It followed that the appeal was dismissed, with costs.

Waiver of privilege by failing to object

Whilst the Court of Appeal’s construction of rule 212(2) of the UCPR is important to a party’s duty of disclosure in the context of the proper conduct of civil litigation in Queensland, it is anticipated that the Court’s findings with respect to imputed waiver of privilege will prove more significant to members of the Bar.

Whether a limited disclosure of the existence and effect of privileged communication is inconsistent with maintaining confidentiality in that communication, such that there has been an imputed waiver of that privilege, depends on the circumstances of the case, including considerations of fairness arising from those circumstances, and will otherwise turn on matters of fact and degree. Osland v Secretary, Department of Justice (2008) 234 CLR 275, 296-7 [45] and 298-9 [49] per Gleeson CJ, Gummow, Heydon and Kiefel JJ. The issue of fairness in the context of such imputed waiver is not concerned with the forensic advantage that might be enjoyed by one party entitled to withhold documents subject to that privilege upon partial disclosure of that information but with the prospect of inaccurate perceptions caused by that partial disclosure and consequential unfairness to the opposing litigant. See Attorney-General (NT) v Maurice (1986) 161 CLR 475, 480-484 per Gibbs CJ and Watkins v State of Queensland [2008] 1 Qd R 564, Keane JA at 591 [57].

The failure by examining counsel to object to questions in cross-examination concerning or resulting in evidence from an expert disclosing the existence or effect of privileged communications might be far removed from the intentional conduct of the privilege-holder said to constitute waiver in, for example, Benecke v National Australia Bank (1999) 35 NSWLR 110, where the privilege-holder herself “lifted the veil of secrecy by giving her version of the communications” (at 111). Nevertheless, such failure may result in a waiver of privilege because it constitutes an omission, on behalf of the persons entitled to the benefit of the privilege, which results in the limited actual or purported disclosure of the contents of the privileged material. There is then the prospect that such disclosure will result in an inaccurate perception of the evidence and, in consequence, unfairness to the cross-examining party.

The question of waiver of legal professional privilege from a failure to object to questions asked in cross-examination is not new, it having been considered by Martin SJA in Johnston v Carroll [2022] QSC 115, [15]-[26] and, albeit in the context of section 122 of the Evidence Act 1995 (NSW), in Global Medical Imaging Management Ltd (In Liq.) v Australian Mezzanine Investments Pty Ltd [2003] NSWSC 430, Divall v Mifsud [2005] NSWCA 447 per Ipp JA (at [3]-[6]) and McColl JA (at [8]-[10]), and Owners Strata Plan No 68372 v Allianz Australia Insurance Ltd [2014] NSWSC 223.

The Court of Appeal’s decision in Enkelmann serves as a reminder that it is essential that examining counsel object during cross-examination to any question that opens the door to evidence, and to otherwise non-responsive or meandering evidence from a witness, that may disclose the existence, or actual or purported effect, of conversations subject to legal professional privilege. A failure to make that objection may result in a finding that the privilege has been waived and an order for disclosure of documents, including file notes, recording that conversation.