Enkelmann v Stewart

Case [2023] QCA 155

SUPREME COURT OF QUEENSLAND

CITATION:

Enkelmann & Ors v Stewart & Anor [2023] QCA 155

PARTIES:

PETER ROBERT ENKELMANN
(first appellant)
MARGARET ANNE ENKELMANN
(second appellant)
PREEMA PARTNERSHIP
(third appellant)
v
MICHAEL ALLAN STEWART
(first respondent)
ANDREA ISABEL STEWART
(second respondent)

FILE NO/S:

Appeal No 6145 of 2023
SC No 12984 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2023] QSC 111 (Williams J)

DELIVERED ON:

1 August 2023

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2023

JUDGES:

Bond and Flanagan JJA and Bradley J

ORDER:

The appeal is dismissed with costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – PRODUCTION AND INSPECTION OF DOCUMENTS – GROUNDS FOR RESISTING PRODUCTION – PRIVILEGE – CLIENT LEGAL PRIVILEGE – OTHER PARTICULAR CASES AND MATTERS – where two experts retained separately by the appellants and respondents used different approaches and methodologies to arrive at different conclusions in reports provided to the Court – where the appellants retained a further expert, Mr Giles, to comment on the reports’ relative strengths – where the appellants’ solicitors had a conference with Mr Giles regarding his “initial feelings” about the reports – where the respondents applied for an order requiring the appellants to disclose any file notes the appellants’ solicitors had made of the conference with Mr Giles – where the order was granted on the basis that the file notes were “document[s] consisting of a statement or report of an expert” under r 212(2) Uniform Civil Procedure Rules 1999 (Qld) and therefore not privileged from disclosure – whether the primary judge erred in in construing r 212(2) as abrogating the privilege protecting a solicitor’s note of an opinion or summary of facts given by an expert in conference with legal advisers

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – PRODUCTION AND INSPECTION OF DOCUMENTS – GROUNDS FOR RESISTING PRODUCTION – PRIVILEGE – CLIENT LEGAL PRIVILEGE – WAIVER OF PRIVILEGE – where the primary judge found that, if the file notes were privileged, the appellants had waived privilege having regard to considerations of fairness – where, during cross-examination, Mr Giles was asked about the conference in relation to which the file notes the subject of the privilege claim were taken – where counsel for the appellants failed to object to Mr Giles’s answers – whether the primary judge erred in finding that privilege had been waived – whether the appellants had otherwise waived privilege by failing to object during the cross-examination of Mr Giles

Uniform Civil Procedure Rules 1999 (Qld), r 212(2)

Attorney-General (NT) v Maurice (1986) 161 CLR 475; [1986] HCA 80, cited
Cockerill v Collins [1999] 2 Qd R 26; [1998] QCA 76, applied
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; [1997]…

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Enkelmann v Stewart [2023] QCA 155
Case
[2023] QCA 155
Decision Date

CaseChat Overview and Summary

In the matter of Enkelmann v Stewart, the appellants challenged an order made by the primary judge during the trial, which required the disclosure of file notes made by their solicitors during a conference with an expert, Mr Giles. The respondents sought these notes, arguing that they were not privileged and that the privilege had been waived. The primary judge agreed with the respondents, finding that the notes were not protected by privilege and that any privilege had been waived by the appellants. The appellants appealed the primary judge's decision, asserting that the notes were privileged and that the primary judge had erred in her interpretation of the relevant rule and in finding that privilege had been waived. The court was required to determine whether the primary judge correctly interpreted the rule and whether any privilege had been waived.

The court found that the primary judge had erred in her interpretation of the rule, which did not abrogate the privilege protecting a solicitor's note of an opinion or summary of facts given by an expert in conference with legal advisers. The court held that the rule did not extend to a solicitor's file note that records the opinion of an expert on an issue directly relevant to the pleadings. The court also found that privilege had not been waived by the appellants, as they had not failed to object to the expert's answers during cross-examination. The appeal was therefore allowed, and the order for disclosure was set aside. The appeal is dismissed with costs.

Orders

Orders of the court

The appeal is dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

If the privilege has not been abrogated or waived, the learned primary judge erred in making the order for disclosure of the notes.The evidence before the primary judge On Friday 12 May 2023, at the trial before the primary judge, the appellants called Mr Giles as an expert witness, and tendered his three written reports. In a report dated 27 April 2022, Mr Giles gave his opinion on the methodology and approach of Dr Markar. Mr Giles wrote that, in preparing the report, he had reviewed three reports by Mr Sargent, two reports by Dr Markar, and a joint report by them both (collectively the Sargent & Markar reports). Mr Giles included copies of the letters of instruction from the appellants’ solicitors in this report. The earliest of these was dated 1 November 2021. By that letter, the solicitors had asked Mr Giles to “conduct a peer review” of the Sargent & Markar reports and provide his opinion “of the most accurate outcome to be garnered from the reports.” The solicitors also asked Mr Giles to “express an opinion” about “the preferred approach” and “the likely effect of each such issue in light of the opinion” he had expressed. Their letter stated that Mr Giles’s report on these things was required for a mediation to be held on 16 November 2021. After identifying himself and his three reports, Mr Giles was cross-examined by Mr Handran KC, leading counsel for the respondents. When asked about the 1 November 2021 letter, Mr Giles told the Court he did not prepare or produce a report on, or a memorandum or written record of, a peer review of the Sargent & Markar reports. He said he may have made notations on copies of the reports, but they either were disposed of by his former employer or remain on the former employer’s files. Mr Giles explained that the matter “very rapidly progressed” before he complied with the request in the 1 November 2021 letter. Instead of the peer review, the appellants’ solicitors had asked Mr Giles to undertake a different task.[7][7]At the hearing of this appeal, the parties identified that, on 23 March 2022, the appellants’ solicitors wrote to Mr Giles confirming the new instruction and the withdrawal of their earlier request for a peer review. The new instruction was to prepare a report for the Court on allegations in issue in the pleadings for use in the pending litigation. Mr Giles had also included a copy of the 23 March 2022 letter in his 27 April 2022 report. Mr Giles told the Court he attended a conference with the appellants’ counsel and solicitors, at which he discussed his “initial feelings” about the Sargent & Markar reports. The conference was online. It happened before he received the letter from the appellants’ solicitors dated 1 November 2021. From other evidence, it seems the conference was in October 2021.The decision of the primary judge On Tuesday 16 May 2023, as the trial continued, the respondents applied to the primary judge for an order requiring the appellants to disclose the solicitors’ file notes of the conference with Mr Giles, amongst other things.[8] The appellants, without conceding any notes existed, claimed they would be privileged from production. The respondents submitted, as they do in the appeal, that r 212(2) abrogated the appellants’ right to protect the notes from disclosure and that the appellants had waived any legal professional privilege.[8]The primary judge declined to order disclosure of other documents the respondents sought. The respondents did not pursue further disclosure in this appeal.

Decision

Reasons for decision

Mr Giles told the Court he attended a conference with the appellants’ counsel and solicitors, at which he discussed his “initial feelings” about the Sargent & Markar reports. The conference was online. It happened before he received the letter from the appellants’ solicitors dated 1 November 2021. From other evidence, it seems the conference was in October 2021.The decision of the primary judge On Tuesday 16 May 2023, as the trial continued, the respondents applied to the primary judge for an order requiring the appellants to disclose the solicitors’ file notes of the conference with Mr Giles, amongst other things.[8] The appellants, without conceding any notes existed, claimed they would be privileged from production. The respondents submitted, as they do in the appeal, that r 212(2) abrogated the appellants’ right to protect the notes from disclosure and that the appellants had waived any legal professional privilege.[8]The primary judge declined to order disclosure of other documents the respondents sought. The respondents did not pursue further disclosure in this appeal. On Wednesday 17 May 2023, the primary judge gave ex tempore reasons, which were transcribed and published.[9] In the reasons, her Honour indicated that an order would be made 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.”[9]Enkelmann & Ors v Stewart & Anor [2023] QSC 111. On Thursday 18 May 2023, the primary judge made an order in terms of a draft settled between the parties. That order is the subject of this appeal.Appeal ground 1 – Did the primary judge err in construing r 212(2) as abrogating the privilege protecting a solicitor’s note of an opinion or summary of facts given by an expert in conference with legal advisers? It is common ground that the order assumes that any file note of the kind her Honour described consists of a “statement or report of an expert” and is not privileged from disclosure, by operation of r 212(2). The appeal proceeded on this basis. The published reasons record the primary judge’s conclusion on the relevant effect of r 212(2):“The abrogation of legal professional privilege in 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.… There is no limitation in that rule that the actual document itself needs to emanate from the expert. What is inherent in subsection (2) is that the document incorporates the opinion, being the statement or report of an expert. That is what is required to come from the expert, not the provenance of the document itself.It may be that only part of a solicitor’s file note would be encompassed by the requirements of a document consisting of a statement or report of an expert, and that other parts of a file note may be properly the subject of a claim for privilege.”[10][10]Ibid, [65]-[68].

Ratio Decidendi

Legal Principle Established

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