Enkelmann & Ords v Stewart & Anor  QCA 155
This is an appeal from the decision in Enkelmann v Stewart  QSC 111. In that decision, Williams J ordered the appellants to disclose any statements directly relevant to the issue on the pleadings of one of their experts, Mr G (a registered professional engineer).
The relevant documents consisted of notes of oral comments made by Mr G in a conference in October 2021 with the appellants’ solicitors and counsel. Mr G had undertaken a “peer review” of the reports of two other engineering experts, Mr S (also retained by the appellants) and Dr M, who were retained by the respondents (the file notes).
The appellants argued that the file notes were the subject of legal professional privilege as they had been prepared for the dominant purpose of the provision of legal advice or use in pending legal proceedings.
The respondents submitted that any privilege in the file notes had been abrogated by r 212(2) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), or if it had not, privilege had been waived.
Findings on Appeal
The primary judge construed r 212(2) UCPR as abrogating the privilege protecting a solicitor’s note of an opinion or summary of facts given by an expert in a conference with legal advisers on the basis that the rule extended to a solicitor’s file note recording the “opinion of an expert on an issue which is directly relevant on the pleadings”.
The Court of Appeal unanimously disagreed with the primary judge’s conclusion. Rule 212(2) UCPR only abrogates privilege in respect of a statement or report of an expert.
Specifically, a solicitor’s file note of a conference with an expert which notes or reports an opinion expressed by the expert at the conference, is not a document consisting of “a statement or report of an expert”, within the ordinary meaning of those words. The phrase “consisting of” in r 212(2) did not extend the scope of the rule to apply to a document that was neither a statement nor a report of an expert.
The purpose of seeking Mr G’s “peer review” of the other expert reports was to enable the appellants’ solicitors and counsel to provide confidential legal advice about the pending litigation. This, in turn, indicated that the communication of Mr G’s opinion about the reports of Mr S and Dr M during the October 2021 conference was privileged.
As to the finding of the primary judge that the appellants had waived any privilege in the file notes by certain conduct between October 2021 and April 2022 (Mr G providing an oral opinion; followed by the appellant’s solicitors requesting a written opinion; followed by them withdrawing the request; the solicitors requesting a report be tendered in Court; and Mr G not referring int hat report to his earlier oral opinion), the court found that conduct was not inconsistent with maintaining the confidentiality of the privileged communications. By these acts, the appellants did not present an unfair, partial, or misleading case to the court, to the prejudice of the respondents, and did not waive privilege.
However, by failing to object or to otherwise assert their privilege to the questions put to Mr G during cross-examination, the appellants impliedly waived the privilege over the file notes taken at the October 2021 conference. By allowing Mr G to give evidence of what he was asked by the appellants’ legal advisers and what he said in reply in the October 2021 conference, those communications were no longer confidential and the appellants could not maintain a claim of legal professional in respect of the file notes.
The appeal was therefore dismissed.
While notes taken by a solicitor during conferences with experts are subject to legal professional privilege, subsequent conduct, particularly during cross-examination at trial, may abrogate the privilege.
Importantly, care must be taken a trial, to not abrogate legal privilege by allowing questions in cross examination which centre around previous discussion/s with experts prior to a report being produced. If those questions (during cross-examination) are not objected to, the subsequent answering of those questions by the expert may be said to have waived privileged.