The position regarding disclosure of file notes taken during discussions with experts has been the subject of debate in Queensland. The Court of Appeal has now provided some clarity.
The Court of Appeal found that, while in this instance, the solicitors’ file notes containing the opinion of an expert were protected by legal professional privilege, subsequent conduct by the Appellants in failing to object to questions put to the expert during cross examination (or to otherwise assert privilege), impliedly waived this privilege.
The Appellants appealed an order requiring them to disclose file notes taken by their solicitors containing oral comments by an engineer, Mr Giles, made during a conference with the Appellants’ legal advisers. Mr Giles’ comments were in relation to the relative strengths of written reports by two other engineers, retained separately by the Appellants and the Respondents. The Appellants’ solicitors had asked Mr Giles to provide a ‘peer review’ of the two reports.
The Appellants submitted that the solicitors’ file notes were protected by legal professional privilege, as documents brought into existence for the dominant purpose of providing confidential legal advice or for use in pending legal proceedings.
The Respondents submitted that the Appellants’ privilege had been abrogated by rule 212(2) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) which states that ‘a document consisting of a statement or report of an expert is not privileged from disclosure’. In the alternative, the Respondents contended that the Appellants had waived their privilege.
Decision of the Primary Judge
At the initial trial before Justice Williams, the Appellants called Mr Giles as an expert witness. During cross examination, Mr Giles told the Court he attended a conference with the Appellants’ legal advisers, at which he discussed his ‘initial feelings’ about the engineering reports. Mr Giles also gave evidence during cross-examination regarding his recollection of what he said at the conference.
Justice Williams concluded that the abrogation of legal professional privilege within rule 212(2) of the UCPR extends to a solicitor’s file note, which records the opinion of an expert on an issue which is directly relevant on the pleadings and does not only incorporate reports actually drafted or prepared by the expert.
Findings on Appeal
Were the file notes privileged?
The Court of Appeal noted that privilege may be availed of to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services. Privilege also protects confidential communications between a client’s lawyer and third parties when they are made for the benefit of the client and confidential material that records the work the lawyer carried out for the benefit of the client.
The Court of Appeal held that absent statutory abrogation or waiver, the file notes were privileged because, it could be reasonably assumed, that they were made for the dominant purpose of the solicitors communicating confidential legal advice to the Appellants, or for briefing counsel to so advise, or to record the solicitors’ work done for the benefit of the Appellants.
Had privilege been abrogated by rule 212(2) of the UCPR?
The Court of Appeal found that, on its proper construction, rule 212(2) of the UCPR only affects documents brought into existence to be a statement or report of an expert, within the ordinary meaning of the words. The Court of Appeal considered that:
‘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.’
The Court of Appeal found that rule 212(2) of the UCPR does not abrogate the Appellants’ right to resist producing the file notes to the Respondents as there is no evidence to establish that they were made by the Appellants’ solicitors as a statement or report of an expert, nor that they were made as a draft of such a document.
Had privilege been waived by the Appellants’ conduct?
The Court of Appeal held that the Appellants’ conduct prior to the initial trial before Justice Williams was not inconsistent with maintaining the confidentiality of the privileged communications.
However, the Court of Appeal found that by failing to object to the Respondents’ questions to Mr Giles (or to otherwise assert their privilege) during cross-examination at the initial trial, and permitting Mr Giles to give evidence of what he was asked by the Appellants’ legal advisers and what he said in reply, the Appellants impliedly waived the privilege over the communications between their legal advisers and Mr Giles at the October 2021 conference.
The Appeal was dismissed with costs.
Rule 212(2) of the UCPR does not extend to abrogate legal professional privilege of solicitors’ file notes which record discussions with an expert if the file notes do not constitute ‘a statement or report’ of the expert.
However, care should be taken not to waive privilege by allowing an expert to address the contents of such privileged communications while giving evidence.
This article was written by Audrey Lacey, Partner and Emily Treston, Solicitor.