Expert opinion in solicitors’ file notes: to disclose or not to disclose

07 July 2023

This decision, with important practical effects, considered whether a solicitor’s file note of a conversation with a hydrology expert was disclosable or privileged from disclosure.

In issue

  • In this decision, Justice Williams was required to determine whether a solicitor’s file note of any statement of advice given by a hydrology expert, and documents relevant to an expert’s ‘state of mind’, during his engagement, were disclosable or privileged from disclosure pursuant to Rule 212(2) of the Uniform Civil Procedure Rules 1999 (the UCPR).

The background

The plaintiffs brought a claim in nuisance and negligence against the defendants relating to modifications to the defendants’ property which allegedly caused flood damage to the plaintiffs’ land.

During cross-examination at trial, it became apparent the plaintiff’s hydrology expert, Mr Giles, had previously given a verbal opinion to the plaintiffs’ solicitors, Shine Lawyers, about the differences in the reports and methodologies used by two other hydrology experts, Mr Sargent (also retained by the plaintiff) and Mr Makar (retained by the defendant). In the written reports ultimately issued by Mr Giles those issues were not addressed by him but he effectively adopted and then adapted the methodology used by Mr Makar (in favour of the methodology adopted by Mr Sargent).

The defendants applied to the court for disclosure of ‘all file notes taken by Shine Lawyers in respect of any statement of advice given by Mr Giles’ and ‘any document which may reflect Mr Giles’ state of mind at any point of time during his engagement as an expert for the plaintiffs, including during conferences Shine Lawyers had with Mr Giles in respect of his draft opinions’. The plaintiff refused to disclose the documents and claimed privilege over them.

In considering the application for disclosure, Justice Williams concluded (consistently with previous superior court decisions) that rule 212(2) of the Uniform Civil Procedure Rules 1999, which states that ‘a document consisting of a statement or report of an expert is not privileged from disclosure’ is intended to abrogate legal professional privilege ordinarily attaching to certain documents.

Her Honour referred to a number of earlier decisions including Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2005] 1 Qd R 373 wherein Justice Douglas expressly addressed the disclosable nature of draft reports and statements of an expert, pursuant to rule 212 of the UCPR.

Her Honour then turned to consider whether a file note of a conversation with an expert constituted ‘a document consisting of a statement or report of an expert’ for the purposes of rule 212. In answer to that question, her Honour noted that not every file note prepared by a solicitor in respect of the engagement of an expert would be caught by rule 212. However, a file note (or other ‘document’), or any part of such document, which records a statement or report of an expert, would be caught by rule 212 and therefore would not be privileged from disclosure. In those circumstances, any such documents were disclosable and not privileged as a consequence of rule 212 of the UCPR.

In addition to concluding the file notes were disclosable as a consequence of rule 212 of the UCPR, Justice Williams found that the documents were disclosable, in any event, because there was an imputed waiver of any privilege over the documents on the basis of ‘fairness’. Specifically, in circumstances where Mr Giles was instructed to provide oral advice in relation to his evaluation of previously exchanged expert evidence and his opinion about those matters seemingly informed the ultimate conclusions expressed in his written report, it would be unfair for the plaintiffs to maintain privilege over any file notes which recorded Mr Giles’ oral opinion.

In the circumstances, her Honour concluded that files notes referencing oral advice provided by Mr Giles were disclosable either as a consequence of either the application of rule 212 of the UCPR or an imputed waiver of any privilege attaching to those documents.

In relation to the defendant’s separate request for disclosure of all documents ‘reflecting the state of mind’ of Mr Giles, Justice Williams found it would not be appropriate to require disclosure of such documents in circumstances where such a description did not reflect the wording of Rule 212(2).

Implications for you

This decision confirms the broad application of rule 212 of the UCPR and the care which must be given when briefing experts in the course of litigation.

Updated 4 August 2023: On 1 August 2023, the Qld Court of Appeal dismissed an appeal in this matter, finding that Rule 212(2) of the UCPR did not abrogate the privilege protecting a solicitor’s file note of an opinion or summary of facts given by an expert in conference with legal advisers. The Court of Appeal observed that only rights in respect of a statement or report of an expert are abrogated by the relevant Rule. 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 also disagreed with the trial judge that the privilege over the file notes had been waived by the conduct of omitting any reference in the expert’s report to having provided an earlier oral opinion to the appellants’ solicitors. The appellants did not present an unfair, partial, or misleading case to the Court, to the prejudice of the respondents and the primary judge was wrong to conclude that privilege had been waived. However, the primary judge’s decision was ultimately affirmed because the Court of Appeal found that the appellants had waived privilege in relation to the notes recording Mr Giles’s opinions, by Mr Giles giving evidence of the opinions he offered, without the appellants taking any objection. By failing to object to the respondents’ questions to Mr Giles (or to otherwise assert their privilege), the appellants impliedly waived the privilege over the communications between their legal advisers and Mr Giles at the October 2021 conference.

Enkelmann & Ors v Stewart & Anor [2023] QSC 111

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