A solicitor’s file note of a meeting with an expert does not fall under an exception to legal professional privilege, the Queensland Court of Appeal has ruled.
Peter Robert Enkelmann, Margaret Anne Enkelmann and Preema Partnership appealed an order made in May in the Supreme Court that required them to disclose file notes taken by their solicitors during a conference with an expert engineer.
The Enkelmanns had brought a claim in nuisance and negligence against Michael Allan Stewart and Andrea Isabel Stewart over alleged flood damage to the Enkelmanns’ property.
The Enkelmanns had asked hydrology expert Mr Giles to do a peer review of the relative strengths of reports by two other engineers, Mr Sargent (retained by the appellants) and Dr Markar (retained by the respondents). During cross-examination at the trial, it became evident Mr Giles had provided an opinion verbally to the Enkelmanns’ solicitors.
The appellants argued that the solicitors’ file notes were protected from production by legal professional privilege as documents created for the dominant purpose of providing confidential legal advice or for use in pending legal proceedings.
The respondents argued that the appellant’s privilege had been abrogated by r 212(2) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), which states a document consisting of a statement or report of an expert is not privileged from disclosure. They contended that even it had not, the appellants had waived their privilege.
At the trial in May, Mr Giles gave evidence he did not prepare or produce a report, but had taken part in an online conference with the appellants’ solicitors, at which he had discussed his “initial feelings” about the Sargent and Markar reports.
Justice Williams granted an order requiring the appellants to disclose any file notes “recording statements of Mr Giles in respect of the peer review” and any “file notes recording statements of Mr Giles being opinions and summaries of factual matters”.
In their decision published last week, Appeal Court Justices Bond, Flanagan and Bradley found Justice Williams had erred by concluding “the abrogation of legal professional privilege r 212(2) 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 … it does not only incorporate reports actually drafted or prepared by the expert”.
They stated the effect of the rule “is to abrogate legal professional privilege that might otherwise entitle a party to refuse to disclose a statement or report of an expert”.
“The rule affects 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. This includes a draft of such a statement or report,” they 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.”
However, the appeals court found the appellants had waived any privilege attached to the file notes by failing to object to Mr Giles’s cross-examination.
“The appellants raised no claim of legal professional privilege in respect of any of these questions put to Mr Giles in cross-examination,” the justices said.
“In this way, the appellants permitted Mr Giles to give evidence of what he was asked by the appellants’ legal advisers and what he said in reply.
“Once Mr Giles had given this evidence, these communications were no longer confidential.”
The appeal was dismissed with costs.
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