An expert's report vs a lawyer's file notes about it: what's privileged and protected from disclosure in Queensland?

Ian Bloemendal, Nick Josey and Tom Ryan
07 Sep 2023 Time to read: 3 MIN

While rule 212(2) of the UCPR (Qld) abrogates statements or reports of an expert (even drafts), it does not abrogate privilege that exists in a solicitor's file note, even if the file note is in relation to a statement or report created by an expert.

Unlike a number of other States and Territories of Australia, the Queensland Uniform Civil Procedure Rules 1999 abrogate legal professional privilege that might otherwise entitle a party to refuse to disclose a statement or report of an expert. In particular, r 212(2) of the UCPR contains an “exceptional” statutory provision with respect to privilege claims:

"A document consisting of a statement or report of an expert is not privileged from disclosure."

This rule affects a document brought into existence to be a statement or report of an expert, whether taken by a solicitor, prepared by the expert, or prepared by a solicitor at the dictation of the expert. It also includes a draft of such a statement or report.

While rule 212 makes it clear that experts reports are not privileged from disclosure in Queensland, there has for some time been a measure of uncertainty and debate over whether a file note by a lawyer recording a conversation between the expert and lawyer should be disclosed if it refers to an expression of opinion by the expert. For example, while obiter, Justice Dalton's footnoted comment in the 2021 case of Landel Pty Ltd & Anor v Insurance Australia Ltd reflected a view that a number of practitioners held when her Honour observed "If, when an expert is giving such an oral opinion, a solicitor takes notes, those notes are disclosable in my opinion".

The decision in Enkelmann v Stewart [2023] QCA 155 decision puts any uncertainty to rest.

Background: the expert reports

The Enkelmanns engaged an expert, Mr Giles. The defendants (the Stewarts) were concerned that Mr. Giles' expert reports did not address certain key instructions he received during his engagement. They sought copies of file notes taken by the Enkelmanns' lawyers regarding any advice given by Mr Giles and any documents reflecting his state of mind during his engagement as an expert. Primarily, these were file notes of Mr Giles' comments about the relative strengths of written reports created by two other engineers.

The questions for the Queensland Court of Appeal were whether:

  • r 212(2) abrogated the privilege protecting a solicitor's note of an opinion or summary of facts given by an expert in conference with legal advisers; and
  • privilege had been impliedly waived due to pre-trial conduct.

The Rule 212(2) question: when is legal professional privilege abrogated?

The Enklemanns claimed that the documents were subject to legal professional privilege, as they had been created for the purpose of providing confidential legal advice or for use in pending legal proceedings. In contrast, the Stewarts claimed that Rule 212(2) of the UCPR abrogated the Enklemanns’ right to protect their lawyers' notes from disclosure.

In the appeal judgment, the Court stated:

"Only rights in respect of a statement or report of an expert are abrogated. The words “consisting of” do not extend the scope of r 212(2) to abrogate privilege in respect of a document that is neither a statement nor a report of an expert.

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." [emphasis added]

In support of its conclusions the Court of Appeal noted that the abrogation created by Rule 212(2) and its predecessor is a limited exception to the substantive right to an important common law immunity. This view is also consistent with other appellate court decisions.

Litigation tactics and the waiver question

Additionally, the Stewarts argued that the Enklemanns had waived privilege by not objecting to Mr Giles' cross-examination.

The Court of Appeal adopted a stronger interpretation of what kind of conduct is necessary for an implied waiver of privilege under these circumstances. The Court found that the Enklemanns had not waived privilege through their conduct as it was "not inconsistent with maintaining the confidentiality of the privileged communications". Furthermore, this was not conduct that was capable of confusing or deceiving their opponents.

Nevertheless, the Court highlighted a point of contention: the Enklemanns' lawyers had not objected to the cross-examination of Mr Giles. During Mr Giles' cross-examination, he was asked to provide his recollection of what he said to their lawyers about his "initial feelings" of the two engineer reports.

By not objecting to Mr Giles' testimony and allowing him to discuss the conference (the content of which was supposedly privileged), the Enklemanns had acted inconsistently with maintaining confidentiality and privilege. They had effectively waived the privilege.

Accordingly, regardless of the inapplicability of rule 212(2), the Court ruled that the file notes should be disclosed due to a waiver of privilege.

Key takeaways for litigation in Queensland

While there are several factors at play in this decision, there are some key takeaways.

First, lawyers (both private and in-house) and clients should both be conscious of the "classification" of documents and whether documents in their possession would constitute a "statement or report of an expert".

Secondly, taking a file note is not the same as a "statement or report of an expert". That means solicitors and in-house lawyers can continue to take file notes that will be subject to privilege. If, however, the litigation is in Queensland, that privilege will be abrogated if the document can be classed as a "statement or report of an expert".

Finally, as a tactical matter, be careful to avoid an expert being allowed to answer cross-examination by which she or he gives evidence on confidential and privileged communications (eg., what was said in a conference with lawyers) without objection being taken. A failure to maintain confidentiality will be inconsistent with maintaining the privilege.

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Nick Josey

Brisbane
Senior Associate
Disclaimer
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.