Enkelmann & Ors v Stewart & Anor [2023] QCA 155 (on AUSTLII)
With thanks to Rob Davis and Jenica Lim-Young for drawing my attention to this decision, where the appellants’ solicitors had a conference with an expert witness Mr Giles regarding his “initial feelings” about the reports of other experts. The appellants later called Mr Giles as an expert witness, and tendered his three written reports.
The respondents applied for an order requiring the appellants to disclose any file notes the appellants’ solicitors had made of the initial conference with Mr Giles. That order was granted and became the subject of this appeal.
The appellants submitted that the solicitors’ file notes were protected from production 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 submit that the appellants’ privilege has been abrogated by r 212(2) of the Uniform Civil Procedure Rules 1999 (Qld). If it had not, the respondents contended that the appellants had waived their privilege.
The appeal produced a single judgment by Bond and Flanagan JJA and Bradley J.
In relation to the rule 212 issue, the court held 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. ([22]).
In relation to the privilege issue, the court held that the initial conduct of the appellants was not inconsistent with maintaining the confidentiality of the privileged communications. It was not apt to confuse or deceive the respondents. However during cross examination of Mr Giles the appellants raised no claim of legal professional privilege in respect of questions put to Mr Giles in respect of the initial conference. 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 court held at [40]:
Even if the appellants did not subjectively intend to waive their privilege, by allowing Mr Giles to give evidence of the conference the appellants acted inconsistently with maintaining the privilege. In the context and circumstances of the case, the respondents should be able to test Mr Giles’s evidence against the contemporaneous notes of the solicitors.
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