Watkins v State of Queensland [2007] QCA 430
This matter concerned the Appellant, the State of Queensland (‘State’), and the Respondent, Mr Stephen Watkins (‘Mr Watkins’) as Litigation Guardian for Harrison Grindley Watkins.
Background
Harrison was born with a spastic quadriplegic form of cerebral palsy, with microcephaly, intermittent dystonic posturing, and cortical vision impairment. Mr Watkins claimed that Harrison’sinjuries were suffered as a result of medical negligence during his birth at Nambour State Hospital on 9 July 2001.
A complying Notice of Claim Part 1 was provided by the Respondent to the State on 31 January 2006 under the Personal Injuries Proceedings Act 2003 (Qld) (‘PIPA’). On 23 January 2007, the State provided a letter denying liability, and made an offer to settle in the amount of $NIL. The basis for the denial of the liability as outlined in the letter was “detailed in the enclosed report of Professor Alistair MacLennan… dated 2 January 2007.”
Mr Watkins then sought orders pursuant to Section 35 of the PIPA requesting disclosure of the documents in the State’s possession connected with Professor MacLennan’s report. In particular, he sought disclosure of the three letters of instruction provided by the State to Professor MacLennan, and any file notes, minutes or memoranda created by the State’s solicitors recording the telephone conference between Professor MacLennan and the State’s solicitors held on 23 November 2006. These letters and teleconference items will be referred to as the ‘documents’ hereinafter.
The State refused this request for disclosure on the basis that the documents were protected by legal professional privilege.
Litigation Timeline
At the originating hearing, the question to be determined was whether the legal professional privilege that ordinarily clothes documents of this nature, being instructions from a legal representative to an expert whose opinion is being sought, had been lost.
In determining this, the trial judge referred to ASIC v Southcorp, which held that
“Ordinarily disclosure of the expert’s report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents… at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or document.”
The trial judge also applied the test in Bryce v Anderson, which states that “The test [for determining whether privilege has been waived] is whether it would be unfair or misleading to allow a party to refer to or use part of the contents of documents without disclosing the whole.” As well as focussing on whether it would be ‘unfair or misleading’ not to disclose the documents, Bryce v Anderson also held that where the purpose for referring to the privileged documents in the expert reports was ‘integrally connected’ to the proceedings, then the documents should be disclosed in full.
Using the principles from both cases, the trial judge ultimately held that legal privilege over the documents had been impliedly waived on the basis that the material contained in the documents formed part of the factual basis of Professor MacLennan’s report, and therefore, it would be unfair and misleading to Mr Watkins should they not be disclosed to him.
As such, Her Honour ordered that the State provide the following to Mr Watkins:
- Letters from the State's solicitors to Professor MacLennan dated 22 September 2006, 20 December 2006 and 24 December 2006; and
- Any file notes, minutes or memoranda created by the State's solicitors recording the telephone conference between Professor MacLennan and Ms Eden of the State's solicitors held on 23 November 2006.
Appellate Hearing
The State appealed the trial judge’s decision on the basis that the trial judge had erred in concluding the privilege over the documents had been waived. The State submitted that the documents were privileged pursuant to s 30 of the PIPA as the ultimate report was produced for the dominant purpose of anticipated litigation, and that in any event, non-disclosure of the documents would not be unfair to Mr Watkins. They also maintained that the documents relating to the telephone conference were ‘information’ rather than a document or report, and therefore, were not required to be disclosed under s 30(1) and s 27(1)(a) of the PIPA.
Mr Watkins argued that the report was delivered for pre-proceeding purposes under s 20 of the PIPA as the basis for the State’s denial of liability. It was argued that on this basis, failure to disclose the documents would create an imbalance of knowledge and information between parties, ultimately preventing a fair and reasonable settlement from occurring.
Jerrard JA
In relation to the State’ssubmission that the documents relating to the telephone conference were ‘information’ rather than a document, Jerrard JA found that they were notes recording information about the circumstances of Harrison’s birth, which made them a report about the related incident, and therefore, fell within the class of documents that the State is obliged to disclose to Mr Watkins under s 27(1)(a) of the PIPA. Jerrard JA found it unnecessary to consider whether privilege had been abrogated in relation to the letters of instruction, although, agreed with Keane J’s broader analysis of the issues pertaining to the construction of s 20 and 30 of the PIPA (see below).
His Honour concluded that the Appeal should be dismissed.
Keane J
Keane J disagreed with the unfairness proposition proposed by the trial judge. He stated that the mere existence of a knowledge or information based advantage is not grounds to waive legal professional privilege, but rather, that the “abuse of the right by conduct apt to confuse or deceive the opponent” is the basis for an imputed waiver of privilege. His Honour held that there was no abuse of privilege by the State amounting to unfairness, and that legal professional privilege over the documents had not been waived on this basis.
However, His Honour then went on to say that it is the purpose for which the communication was made which clothes the item with privilege. In light of this, His Honour accepted Mr Watkins’ argument that the report was obtained for pre-proceeding purposes pursuant to s 20 of the PIPA, and that therefore, the report was never protected by professional privilege. By extension, the documents used to draft the report were never subject to privilege either. In any event, His Honour also held that the privilege provisions under s 30 of the PIPA did not operate to cover the obligations imposed by s 20 of the PIPA, as it would frustrate the purpose of s 20 in helping the person to whom the offer is made understand the offer. So, the State’s privilege argument under s 30 did not apply regardless.
In concluding that the purpose of the report was for the State to fulfill its obligations under s 20 of the PIPA, His Honour submitted that Mr Watkins should have “full and correct understanding of the bases of a respondent’s denial of liability and offer of settlement as the respondent itself does.” His Honour concluded that these documents may help Mr Watkins assess the State’s offer, and therefore, should be disclosed.
Mackenzie J agree with Keane J’s reasoning, both concluding that the Appeal should be dismissed.
Decision
The Appeal was dismissed.