Court of Appeal (Qld)|2007-11-30|Before: Jerrard and Keane JJA and Mackenzie J, Separate reasons for judgment of, each member of the Court, each concurring as to the orders made
Jerrard and Keane JJA and Mackenzie J, Separate reasons for judgment of, each member of the Court, each concurring as to the orders made
Catchwords
PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND
INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION –
GROUNDS FOR
RESISTING PRODUCTION – LEGAL PROFESSIONAL PRIVILEGE – WAIVER OF
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY ANDINSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION –GROUNDS FORRESISTING PRODUCTION – LEGAL PROFESSIONAL PRIVILEGE – WAIVER OFPRIVILEGE – where respondent gave appellantnotice of claim for damagespursuant to Div 1 of the Personal Injuries Proceedings Act 2002 (Qld)("the PIPA") – where appellant gave notice of denial of liability andcited professional report as basis for denial –where report referred toother documents – where appellant ordered to disclose documents –whether privilege in documentshad been waived – effect of compulsorydisclosure under the PIPA – whether maintaining privilege in documentswhile disclosingreport unfair – whether solicitor's file note fallswithin s 27(1)(a) of the PIPAPersonal Injuries Proceedings Act 2002(Qld), s 4, s 9, s 20, s 21, s 27, s 30, s 33,s 35, s 36, s 37
Australian Securities &
Investments Commission v Southcorp Limited [2003] FCA 804
(2003) 46 ACSR 438, considered
Attorney-General (NT) v Maurice [1986] HCA 80
(1986) 161 CLR 475,
applied
Baker v Campbell [1983] HCA 39
(1983) 153 CLR 52, applied
Goldberg v
Ng [1995] HCA 39
(1995) 185 CLR 83, applied
Interchase Corporation Limited (In Liq)
v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1997] QCA
469
[1999] 1 Qd R 141, distinguished
Mann v Carnell [1999] HCA 66
(1999) 201
CLR 1, applied
R v Secretary of State for the Home Department, Ex parte
Simms [1999] UKHL 33
[2000] 2 AC 115, applied
The Daniels Corporation International Pty Ltd & Anor v Australian
Competition and Consumer Commission [2002] HCA 49
(2002) 213 CLR 543, applied
Judgment (289 paragraphs)
[1]
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - LEGAL PROFESSIONAL PRIVILEGE - WAIVER OF PRIVILEGE - where respondent gave appellant notice of claim for damages pursuant to Div 1 of the Personal Injuries Proceedings Act 2002 (Qld) ("the PIPA") - where appellant gave notice of denial of liability and cited professional report as basis for denial - where report referred to other documents - where appellant ordered to disclose documents - whether privilege in documents had been waived - effect of compulsory disclosure under the PIPA - whether maintaining privilege in documents while disclosing report unfair - whether solicitor's file note falls within s 27(1)(a) of the PIPA
The Daniels Corporation International Pty Ltd & Anor v Australian Competition and Consumer Commission[2002] HCA 49; (2002) 213 CLR 543, applied
[11]
[1] JERRARD JA: In this appeal I have had the benefit of reading the reasons for judgment of Keane JA and the orders proposed by His Honour. The proceedings in this Court concern a claim under the Personal Injuries Proceedings Act 2002 (Qld) ("the PIPA") against the appellant State of Queensland ("the State"), in respect of a now six year old boy, born with a spastic quadriplegic form of cerebral palsy, with microcephaly and with intermittent dystonic posturing, as well as cortical vision impairment. The boy's litigation guardian, the respondent Mr Watkins, has claimed damages for (those) injuries allegedly suffered when the boy was born at the Nambour State Hospital on 9 July 2001. As Keane JA remarked, the arguments in this Court on appeal were distinctly different from those presented to the learned trial judge whose orders are appealed, and the respondent could succeed in upholding the orders below on a much narrower basis than that found by Keane JA. Unlike His Honour, I would uphold the judgment on that narrower basis, although I agree with Keane JA that the orders can be upheld on the far broader basis found by him. I consider that it is strictly unnecessary on this appeal to resolve those broader issues, although I generally agree with what Keane JA has written on them.
[12]
[2] I adopt the description of the relevant facts and legislation given by Keane JA, and add the following matters. The respondent's Notice of Claim was provided to the State on 31 January 2006 pursuant to Division 1 of Part 1 of Chapter 2 of the PIPA; it appears to be common ground it was a complying Part 1 Notice. The respondent had provided the State's solicitors with two reports as to his son's injuries, the first by a Dr Luciani, an Obstetrician and Gynaecologist, as to the cause of the boy's injuries; the second was by a Dr Adler, a Paediatric Neurologist, as to the impact of the injuries upon the boy.
[13]
[3] The report from Dr Luciani, dated 1 May 2006, was provided to the State's solicitors on 25 August 2006; those solicitors had written to Professor MacLennan on 24 August 2006, and they sent further letters on 22 September 2006 and
[14]
20 December 2006. Those are the letters ordered to be disclosed in the orders under appeal, with the dates corrected.
[15]
[4] Section 9A(9)(d) of the PIPA required the respondent, when giving the State a complying Part 1 Notice of Claim in a claim based on alleged medical negligence, to give the State a written report from a medical specialist, competent to assess a medical incident alleged to have given rise to a personal injury, and stating the specialist's opinion that there was a failure to meet an appropriate standard of care providing medical services, the reasons justifying the opinion, and that as a result of the failure the claimant suffered personal injury. It appears that Dr Luciani's report was provided in accordance with that statutory obligation. A similar obligation is placed on a party receiving a complying Notice of Claim, by s 20(3) of the PIPA. That section obliged the State to accompany a written offer of settlement to the claimant (which offer s 20(1)(e) required the State to make) with a copy of:
[16]
"medical reports, assessments of cognitive, functional or vocational capacity and all other material, including documents relevant to assessing economic loss, in the offerer's possession that may help the person to whom the offer is made make a proper assessment of the offer."
[17]
[5] The State accordingly wrote on 23 January 2007, enclosing its report from Professor MacLennan, which was dated 2 January 2007, describing itself as acting:
[18]
"In according with s 20 of the Personal Injuries Proceedings Act 2002 ("PIPA") our client gives notice that liability to the claimant in respect of the facts and circumstances particularised in the Form 2 Notice of Claim is denied."
[19]
The letter went on to explain that the basis for the denial of liability was detailed in the enclosed report of the Professor, and various aspects of it were repeated and summarised in the letter of 23 January. The State offered to settle the claim for $Nil. The report began by referring to the letters of 24 August 2006, 22 September 2006, and 20 December 2006 requesting the doctor's opinion, and then it set out the documents on which the opinion was based, which did not include those letters of instruction. An accompanying account referred to a teleconference with a
[20]
Ms Eden of the State's solicitors, dated 23 November 2006 and lasting 30 minutes; that reference was the source of the order that the State provide copies of any file notes, minutes or memoranda created by its solicitors recording that telephone conference. That order was subject to the condition that the file note revealed that Ms Eden gave Professor MacLennan further instruction, or received an oral report from him, which had been reduced to writing by her.
[21]
[6] The letter of 23 January 2007 from the State's solicitors to the respondent's solicitors said nothing about any legal professional privilege in the report then being disclosed, or waiver of that privilege by the fact of disclosure, and referred only to
[22]
s 20 of the PIPA, in accordance with which section the State gave notice denying liability. Undoubtedly, the State's attitude displayed in that letter - disclosing the report without reference to any claim of privilege - affected the approach taken below by the learned trial judge, who described the report as being voluntarily disclosed by the State, which had thereby waived any privilege that would otherwise have inhered in it. The judge went on to remark that had it not been voluntarily disclosed, the report would have been required to be disclosed pursuant to s 27(1)(a)(i) and s 30(2) of the PIPA. The judge then added that that would have made no difference - had the disclosure assertedly been in accordance with those sections - because the question was:
[23]
"Not whether the document which refers to a privileged document is itself the subject of privilege ... nor is it relevant that privilege in the original document has been abrogated by statute. Rather the question is whether the privilege that ordinarily inheres in letters of instruction has been waived in this instance."
[24]
[7] That was the approach taken by the learned judge - that while letters of instruction from a legal representative to an expert whose opinion was sought for advice or for use in litigation were usually protected from disclosure by legal professional privilege, that was not the issue. The issue was simply whether the reference in Professor MacLennan's report, at page 4, to his letters of instruction and the statement that those instructions were that the boy's mother lived about 40 minutes from the hospital, (and whether the fact that other statements of fact were relied upon by the Professor, where the source was not apparent but which did not appear to come from the documents which the Professor did list as sources) impliedly waived the legal professional privilege that existed in those letters of instruction. The judge held that it did, after referring to Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475, Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, and ASIC v Southcorp (2003) 46 ACSR 438; [2003] FCA 804. The judge held that the issue was whether an acknowledged privilege in the letters of instruction had been waived by the express reference to them, and by the implication that other information in Professor MacLennan's report also derived from those letters of instruction, or from the conversation with Ms Eden on 23 November 2006. The learned judge held, referring to Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, that an implied waiver occurred when a person claiming a privilege acted inconsistently with the maintenance of the privilege, by, for example, failing to maintain the confidentiality of the communication which the privilege was designed to protect. The judge noted that it was widely accepted that disclosure of part of a document might lead a court to require the disclosure of the whole of the document, if disclosure of part only was misleading or unfair to the other side.
[25]
[8] In Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 the High Court had occasion to consider the circumstances in which a waiver of privilege would be imputed to a party. Gibbs CJ wrote (at 481) that:
[26]
"The decisions in which this question has been considered seem to me to be particular applications of the rule that in a case where there is no intentional waiver the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production."
[27]
Mason and Brennan JJ (as Their Honours then were) wrote in a joint judgment (at 487-488) that:
[28]
"An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege. The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication ... In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject matter: see Great Atlantic Insurance Co. v Home Insurance Co[1]."
[29]
"Waiver of legal professional privilege by imputation or implication of law is based on notions of fairness. It occurs in circumstances where a person has used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage. Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege."
[30]
"... it is clear enough that an implied waiver may be required by fairness notwithstanding that it was not intended. It would not be fair to allow privilege to be waived with respect to a portion of a document or a conversation without requiring disclosure of the rest of it, at least if the document or conversation dealt with the one subject matter."
[31]
[9] In Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83, the joint judgment of Deane, Dawson and Gaudron JJ held in similar terms, at 96, that:
[32]
"Necessarily, the basis of such an imputed waiver will be some act or omission of the persons entitled to the benefit of the privilege. Ordinarily, that act or omission will involve or relate to a limited actual or purported disclosure of the contents of the privileged material. When some such act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver, the governing consideration is whether 'fairness requires that his privilege shall cease whether he intended that result or not'. That does not mean, however, that an imputed waiver must completely destroy the privilege. Like an express waiver, it can be limited so that it applies only in relation to particular persons, materials or purposes."
[33]
[10] In Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [28] - [29] the joint judgment of Gleeson CJ, Gaudron, Gummow and Callinan JJ explained the basis of waiver a little differently, in the following terms:
[34]
"Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against the lawyer, in which the lawyer's evidence as to advice given to the client will be received.
[35]
Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is 'imputed by operation of law'... What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large."
[36]
[11] In Interchase Corporation Limited (in liq.) v Grosvenor Hill (Qld) Pty Ltd (No 1) [1999] 1 Qd R 141 this Court had occasion to consider and apply the law as then declared in Attorney-General (NT) v Maurice, and to consider other aspects of the law relating to claims of legal professional privilege. That matter involved an objection by a defendant to a valuer, from whom the defendant had obtained an important report, making third party discovery to the plaintiff of, inter alia, letters from the defendant's solicitors to the valuer, drafts of the valuer's report, and working papers used by the valuer in making the valuation. Separate judgments were given by the members of this Court, but the uniform thrust of those was to hold that there was no property in a witness, or in documents which were the witness' documents, and that a court had a right to hear evidence (citing Denning MR in Harmony Shipping Co. SA v Davis [1979] 3 All ER 177, R v King [1983]
[37]
1 All ER 929, and W v Egdell [1990] Ch 359. This Court held that the core of legal professional privilege is communication between a solicitor and a client, and that the privilege attaches to confidential communications between the solicitor and an expert, but not to the documents on which the expert bases the expert's opinion, nor to the opinion itself, nor documents brought into existence for the proceedings and put before the witness for an opinion. Those then become part of the facts on which the opinion is based.
[38]
[12] This Court went on to hold that there was no automatic waiver resulting simply from compulsory disclosure of a report, in respect of documents which only came into existence for the production of the expert's written opinion. On the facts of that case, there was no waiver by necessary implication of the correspondence between the solicitors and the valuer, simply from the disclosure of the valuation in accordance with the requirements of O 35 r 5(2) of the then applicable Rules of Court. This Court dismissed the claims of privilege in respect of drafts of the report, the working papers, and other documents. The claim was upheld in respect of the correspondence because the Court was not satisfied there was any unfairness in maintaining that claim, simply because the report itself was obliged to be disclosed.
[39]
[13] In Australian Securities and Investments Commission v Southcorp Limited [2003] FCA 804; (2003) 46 ACSR 438, Lindgren J, at [21], wrote as follows:
[40]
"I will apply the following principles which I do not understand to be in dispute:
[41]
(1) Ordinarily the confidential briefing or instructing by a prospective litigant's lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege: cf Wheeler v Le Marchant(1881) 17 ChD 675; Trade Practices Commission v Sterling[1979] FCA 33; (1979) 36 FLR 244 at 246; Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1)[1999] 1 Qd R 141 ("Interchase") at 151 per Pincus JA, at 160 per Thomas J.
[42]
(2) Copies of documents, whether the originals are privileged or not, where the copies were made for the purpose of forming part of confidential communications between the client's lawyers and the expert witness, ordinarily attract the privilege: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 ("Propend"); Interchase, per Pincus JA; Spassked Pty Ltd v Commissioner of Taxation (No 4)[2002] FCA 491; (2002) 50 ATR 70 at [17].
[43]
(3) Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness's own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications: cf Interchase at 161 - 162 per Thomas J.
[44]
(4) 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 referred to in (1) and (2) above, 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 documents; cf Attorney-General (NT) v Maurice[1986] HCA 80; (1986) 161 CLR 475 at 481 per Gibbs CJ, 487 - 488 per Mason and Brennan JJ, 492-493 per Deane J, 497 - 498 per Dawson J; Goldberg v Ng[1995] HCA 39; (1995) 185 CLR 83 at 98 per Deane, Dawson and Gaudron JJ, 109 per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd[1995] FCA 870; Australian Competition and Consumer Commission v Lux Pty Ltd[2003] FCA 89 ("ACCC v Lux") at [46].
[45]
(5) Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents; Interchase at 148 - 150 per Pincus JA, at 161 per Thomas J.
[46]
(6) It may be difficult to establish at an early stage whether documents which were before an expert witness influenced the content of his or her report, in the absence of any reference to them in the report; cf Dingwall v Commonwealth of Australia[1992] FCA 627; (1992) 39 FCR 521; Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No 2)(1998) 83 FCR 397 at 400; ACCC v Lux at [46]."
[47]
[14] The cases cited by His Honour support the propositions distilled from them. The learned trial judge in this matter referred to that decision, citing from the paragraph numbered (4). The appellant's senior counsel contended on this appeal that that description by Lindgren J of the applicable principles had not been universally endorsed elsewhere. Instead, this Court was urged to follow the view expressed by the Victorian Full Court in British American Tobacco Australia Services Ltd v Cowell(2002) 7 V.R. 524 at 563-564 [121], that privilege waived in relation to one piece of advice is impliedly waived in relation to another if and only if that other is necessary to a proper understanding of the first. Mr DJS Jackson QC for the State also submitted that in New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 at [53], the judgment of White J had expressed a slightly different test. Writing of that paragraph (4), White J wrote:[2]
[48]
"The question is not merely whether it could be said that the privileged materials were used in such a way that they could be said to influence the content of the report, but whether it could be said that they influenced the content of the report in such a way that the use or service of the report would be inconsistent with maintaining the privilege in those materials, such as, where it would be unfair for the party to rely on the report without disclosure of those materials."
[49]
[15] The qualification added by Justice White is consistent with the further explanation of the basis of waiver given in the joint judgment in Mann v Carnell, but making that point does not demonstrate that the learned trial judge in this case fell into any error in citing from ASIC v Southcorp Limited. The learned judge referred to the decision in Mann v Carnell, citing from it, and concluded that it would be unfair and misleading not to disclose the full contents of whatever instructions were given, because of the reference made to their asserted content. The appellant put those letters of instruction before this Court on the appeal, just as it had done below, although counsel for the respondent was not permitted to learn the contents. The appellant did not put the file note before the court, but contended that the contents of those letters of instruction revealed that Professor MacLennan was mistaken in attributing to the State's solicitors any instructions about the claimant's mother living 40 minutes from the hospital, since that did not appear in those instructions. The matter was common ground in any event, because the claimant alleged that fact in the Notice of Claim. That is all true, but the report produced by the State referred to the contents of the State's letters of instruction, both explicitly and impliedly.
[50]
[16] The judge held that it would be unfair not to disclose the three letters and the file note of which disclosure was ordered, and misleading not to disclose the full contents of those, when the letters of instruction were referred to as part of the factual basis of the report. The judge did not hold that merely providing the report, in accordance with the obligation in s 20(3) or the obligation in s 27(1), itself constituted a waiver of legal professional privilege in the documents from the State's solicitors sent to Professor MacLennan, and conveying the instruction requesting his report. Instead, the orders under appeal were made on the entirely different basis that an admitted and uncontested privilege in those instructions had been waived by the provision of a report that referred in part to the contents of those documents containing the instructions. Considerations of fairness include the respondent being entitled to test the validity of the opinions in the report on any reasonable basis, including whether those opinions overlooked or assumed instructions, or inaccurately described them. For that reason I would uphold the orders made below on the grounds on which they were made.
[51]
[17] That conclusion was open on the authorities and on the material presented to the learned judge. The fact that the letter of instruction did not in truth refer to the distance the child's mother lived from the hospital, and that Professor MacLennan derived that information from a different source, does not alter the position that in the report the State provided Professor MacLennan made a claim about receiving instructions as to the facts he assumed or relied on, received in letters from the State's solicitors. That claim was arguably accurate in respect of at least some of the facts clearly assumed or asserted by the Professor, and inaccurate for at least one fact.
[52]
[18] The grounds argued in appeal were quite different. I agree with what Keane JA has written about those, subject to the following matters. The appellant's senior counsel submitted that the appeal concerned two questions. The first was whether the notes of a conference by telephone between a solicitor and a prospective expert witness was a report within the meaning of s 30(2) of the PIPA. That way of stating the issue assumed that such a file note would (and could) only be the subject of a waiver of privilege if it answered the description in s 30(2), of either an investigative report, a medical report, or a report relevant to a claimant's rehabilitation. The judgment under appeal does not reveal that that is how the matter was argued below, where the learned judge dealt with waiver only on the basis of necessary implication from the fact of partial disclosure of an otherwise privileged document.
[53]
[19] The second issue identified by the State was whether a letter or letters of instruction to a prospective expert witness, being a communication in which there was legal professional privilege, became the subject of an automatic waiver of privilege upon the State giving a copy of the report from the expert under either s 20(3) or s 27(1) of the PIPA, the report being one which must be disclosed under s 30(2). Again, stating that ground of appeal in that fashion differed from the manner in which it was treated below, where the learned judge proceeded on the conventional basis of waiver by necessary implication, and did not hold that there was an automatic waiver of an otherwise existing legal professional privilege in a letter seeking a report, by virtue of the report being provided to the respondent by way of obligation under s 20(3) or s 27(1)(a).
[54]
[20] The appellant State advanced extensive submissions in support of the negative conclusions which it argued on those two issues it identified, but in my respectful opinion neither of them actually arose. The second one would have, had the learned judge held that providing a report necessarily waived privilege in the instructions seeking it, but the judge did not so hold. The first would have arisen had the judge held the obligation to disclose arose because the file note answered the description of one of the relevant reports in s 30(2), but the judge held that the obligation to disclose arose by necessity, and on a different ground, namely because of other, partial, disclosure of the instructions.
[55]
[21] The appellant's arguments analysed the provisions of the PIPA in Division 2 of Chapter 2 in considerable detail, and conceded that s 20(3) and s 27(1) did require abandonment by it of what would otherwise be legal professional privilege in
[56]
Professor MacLennan's report in this matter. That concession was based on s 30(2) of the PIPA, and on the agreement that that report constituted either an investigative or a medical report. The essential contention was that legal professional privilege had been maintained by s 30(1) in such matters, but excised by s 30(2).
[57]
[22] The submissions conceded some curiosity in the drafting of both s 30(1) and
[58]
s 30(2), in that s 30(1) appears to have been drafted on the assumption that legal professional privilege attached to information, as opposed to a document; and
[59]
s 30(2) on the assumption that the privilege attached to statements of opinion. Both assumptions are contrary to the law as explained in Interchase. Those oddities aside, the provisions of s 20(3) and s 27(1) are inconsistent with the continued existence of legal professional privilege in the reports which must be provided as required in those sections. But although the respondent's senior counsel submitted otherwise, it does not necessarily follow that privilege is automatically abrogated by the PIPA in letters of instruction which seek those reports, and I consider it is not necessary to decide that question in this matter.
[60]
[23] The appellant's principal submissions were directed to overturning the order that it give the respondent any file notes, minutes or memoranda of the telephone conference between Professor MacLennan and Penelope Eden on 23 November 2006. Those submissions reflected the contents of s 22, providing a duty on a claimant to give copies of documents and to provide information, and on s 27, providing the like obligations on a respondent to a Notice of Claim. Both sections distinguish between the provision of documents and the provision of information, and the appellant argued that an oral communication was of "information", which was not within the exception carved out by s 30(2). Accordingly, privilege remained in respect of that, by reason of s 30(1). The appellant also argued that it was wrong to include a note or memorandum of information communicated orally within the description of "reports and other documentary material" in s 27(1)(a)(i) of the PIPA. It argued that to do so would therefore result in privilege being lost if a note was made, and would discourage solicitors from making such notes.
[61]
[24] The problem with that submission is that a note recording information about the circumstances of the claimant child's birth is a report about the incident alleged to have given rise to the personal injury to which his claim related. It therefore falls within the class of documents which the State is obliged to give the claimant, in accordance with s 27(1) of the PIPA, and the legislation makes legal professional privilege in such documents irrelevant to the obligation to disclose them.
[62]
[25] I would have limited the dismissal of the appeal to the more narrow basis described, but agree with Keane JA on his construction of the PIPA and the consequences for legal professional privilege, subject to the reservation in [22] herein.
[63]
[26] KEANE JA: Mr Watkins has given the State of Queensland a notice of claim for damages for negligence on behalf of his infant son as a result of injuries suffered when the child was born at the Nambour Hospital on 9 July 2001. The notice of claim, dated 18 January 2006, was given to the State pursuant to the requirements of Div 1 of the Personal Injuries Proceedings Act 2002 (Qld) ("the PIPA"). It does not appear that an action for damages has yet been commenced.
[64]
[27] On 23 January 2007, the State denied liability in respect of the claim, and offered to settle the claim "in the amount of $ nil". The basis of the State's denial of liability was said to be "detailed in the enclosed report of Professor Alistair MacLennan ... dated 2 January 2007".
[65]
[28] Mr Watkins sought orders pursuant to s 35 of the PIPA for the disclosure of documents in the State's possession connected with the report by Prof MacLennan. The State resisted that application on the ground that these documents were clothed with legal professional privilege, and so were immune from disclosure. On the footing that the State had waived privilege in these documents by its use of
[66]
Prof MacLennan's report, the learned primary judge made orders the effect of which was to require that the State give Mr Watkins copies of any of the following documents in the State's possession:
[67]
• Letters from the State's solicitors to Prof MacLennan dated 22 September 2006, 20 December 2006 and 24 December 2006;
[68]
• Any file notes, minutes or memoranda created by the State's solicitors recording the telephone conference between Prof MacLennan and Ms Eden of the State's solicitors held on 23 November 2006.
[69]
I shall refer to the documents containing this information as "the communications".
[70]
[29] The State has appealed against this order, contending that the learned primary judge erred in concluding that privilege in these communications had been waived by the State.
[71]
[30] Before discussing the arguments agitated in this Court, I shall first summarise:
[72]
(a) the position of each of the parties in relation to the incident the subject of the claim;
[73]
(c) the reasons which led the learned primary judge to conclude that privilege had been waived.
[74]
The contentions of the parties in relation to the incident
[75]
[31] The incident was described in the notice of claim as follows:
[76]
"1. The mother of the injured person was admitted to Nambour Hospital at or around 7:00 pm on the 8th July for birth induction.
[77]
She was 12 days overdue.
She was seen and examined by two nurses employed by the respondent who administered the initial stage of the induction, being the insertion of prostin gel into the vaginal cavity.
At 8:40pm she was then instructed to go home, and to return at 7am the next morning.
Once home, the pain was intense, and after ringing the hospital, she returned to the hospital between 11:00pm and 12:00am that night.
She was seen and examined by a different nurse, who was unable to hear the baby's heartbeat.
She called for another nurse to come in, with the same result.
They called for a doctor, who called for an emergency operation.
The injured person was born at 1:00am on the 9th July."
[78]
[32] The notice of claim also contained a statement of the factual basis on which it was contended that the State was liable in negligence for the injuries suffered by the child:
[79]
"1. The injured person and the injured person's mother were in the care of the respondent at all times relevant to the incident.
[80]
The respondent failed to notify the injured person's mother of the possibility of undergoing an operation to deliver the injured person by caesarean section.
The respondent failed to notify the injured person's mother of the potential risk to the injured person that was involved in undertaking a birth induction procedure.
The respondent was responsible for the examination of the injured person's mother on the 8th July and undertook that examination.
The respondent administered the first stage of a birth induction procedure at approximately 7:45pm on the 8th July.
The respondent failed to adequately comply with relevant guidelines for the administration of such a procedure.
The respondent instructed the injured person's mother to go home following the administration of the 1st stage of the procedure.
The respondent knew or ought to have known that the injured person's mother lived at least 40 minutes drive away from Nambour Hospital.
The respondent dismissed the concerns of the injured person's mother relating to her condition and the continuing progress of the birth induction procedure.
The respondent delivered the injured person at 1:00am on the 9th July 2001.
The respondent failed to monitor the injured person's mother following the administration of the 1st stage of the induction procedure.
The respondent instructed the injured person's mother to return home in circumstances where they knew or ought to have known that this posed a significant risk to the injured person.
The respondent failed to provide an adequate degree of care to the injured person's mother.
This failure resulted in the injury that was suffered by the injured person."
[81]
[33] As I have said, Prof MacLennan's report of 2 January 2007 was said to detail the basis of the State's denial of liability. The State's letter of 23 January 2007 summarised the effect of Prof MacLennan's report as follows:
[82]
"1. The antenatal care was appropriate. Whilst it is common for patients to be kept in overnight following application of prostaglandin gel, Professor MacLennan noted that the hospital policy in 2001 at Nambour Hospital permitted patients to be discharged home to await events. Professor MacLennan comments that this has the advantage of deinstitutionalising the latent period before labour becomes established.
[83]
Professor MacLennan notes that following your client's return to hospital fetal bradycardia was observed. He is unable to explain the cause of that episode of bradycardia but goes on to comment that 'contrary to traditional belief, emergency caesarean section whether performed expeditiously or delayed by another hour has not been shown to lower the rate or risk of cerebral palsy'. In his opinion, the 'mechanisms of cerebral palsy are rarely related to acute hypoxia, and rapidly [sic] delivery does little to improve or ameliorate a cerebral palsy outcome'.
The antenatal origins of cerebral palsy in this case are difficult to identify in retrospect. Professor MacLennan notes that the claimant does not fulfil the four essential criteria for establishing a causal nexus between intrapartum events and development of cerebral palsy."
[84]
[34] Section 4 of the PIPA states that the main purpose of the Act is "to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury". Section 4(2) provides that:
[85]
"[t]his purpose is to be achieved generally by [inter alia] -
[86]
(a) providing a procedure for the speedy resolution of claims for damages for personal injury to which this Act applies; and
[87]
(b) promoting settlement of claims at an early stage wherever possible; and
[88]
(c) ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial ..."
[89]
[35] Division 1 of Pt 1 of Ch 2 of the PIPA includes s 9, which requires the giving of a notice of claim in the approved form in two parts, namely Pt 1 and Pt 2, to the person against whom it is proposed to start a proceeding before the proceeding is started.
[90]
[36] A person to whom a notice of claim is given is obliged to respond to the claim with a view to resolving the claim. In this regard, s 20(1) of the PIPA obliges a respondent who has received a notice of claim to "take reasonable steps to inform ... itself about the incident alleged to have given rise to the personal injury to which the claim relates", and to give the claimant written notice stating, inter alia, "whether liability is admitted or denied". Pursuant to s 20(1)(c), the response must include an offer of settlement or a counter-offer to an offer by the claimant. It is important to note that, pursuant to s 20(3), any such offer or counter-offer "must be accompanied by a copy of medical reports ... and all other material ... in the offerer's possession that may help the person to whom the offer is made make a proper assessment of the offer."
[91]
[37] Further provisions of the PIPA of relevance in the present appeal may be mentioned together. They are contained in Div 2 and Div 3 of Pt 1 of Ch 2 of the PIPA. They are as follows:
[92]
The purpose of this division is to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim.
[93]
Duty of respondent to give documents and information to claimant
[94]
(a) copies of the following in the respondent's possession that are directly relevant to a matter in issue in the claim -
[95]
(i) reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates;
[96]
(ii) reports about the claimant's medical condition or prospects of rehabilitation;
[97]
(iii) reports about the claimant's cognitive, functional or vocational capacity; and
[98]
(i) information that is in the respondent's possession about the circumstances of, or the reasons for, the incident; or
[99]
(ii) if the respondent is an insurer of a person for the claim, information that can be found out from the insured person for the claim, about the circumstances of, or the reasons for, the incident.
[100]
(a) give the claimant the copies mentioned in subsection (1)(a) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving a complying part 1 notice of claim and, to the extent any report or documentary material comes into the respondent's possession later, within 7 days after it comes into the respondent's possession; and
[101]
(b) respond to a request under subsection (1)(b) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving it.
[102]
(3) If the claimant requires information provided by a respondent under this section to be verified by statutory declaration, the respondent must verify the information by statutory declaration.
[103]
(4) If a respondent fails, without proper reason, to comply fully with this section, the respondent is liable for costs to the claimant resulting from the failure.
[104]
(1) A party is not obliged to disclose information or documentary material under division 1 or this division if the information or documentary material is protected by legal professional privilege.
[105]
(2) However, investigative reports, medical reports and reports relevant to the claimant's rehabilitation must be disclosed even though otherwise protected by legal professional privilege but they may be disclosed with the omission of passages consisting only of statements of opinion.
[106]
(3) If a respondent has reasonable grounds to suspect a claimant of fraud, the respondent may apply, ex parte, to the court for approval to withhold from disclosure under division 1 or this division information or documentary material, including a class of documents, that -
[107]
(4) If the court gives approval on application under subsection (3), the respondent may withhold from disclosure the information or documentary material in accordance with the approval.
[108]
investigative reports does not include any document prepared in relation to an application for, an opinion on or a decision about, indemnity against the claim from the State.
[109]
The information, reports and documentary material given or disclosed under division 1 or this division are protected by the same privileges as if disclosed in a proceeding before the Supreme Court.
[110]
Court's power to enforce compliance with divs 1 and 2
[111]
(1) If a party fails to comply with a duty imposed under division 1 or 2, the court may, on the application of another party to whom the duty is owed, order the first party to take specified action to remedy the default within a time specified by the court.
[112]
(2) The court may make consequential or ancillary orders, including orders as to costs."
[113]
[38] Division 4 of Pt 1 of Ch 2 of the PIPA provides, by s 36, that "[b]efore starting a proceeding in a court based on a claim, there must be a conference of the parties (the compulsory conference)." By s 37(1) it is provided that:
[114]
"... before the compulsory conference is held, each party must give each other party -
[115]
(a) copies of all documents not yet given to the other party that are required to be given to the party under this Act; and
[116]
(b) a statement signed by the party verifying that all relevant documents, in the possession of the party or, if the party has legal representation, the practitioner acting for the party, that are required to be given under this Act have been given as required; and
[117]
(d) a certificate (certificate of readiness) signed by the party."
"state that, having regard to the documents in the party's possession -
[120]
medical or other expert reports have been obtained from all persons the party proposes to call as expert witnesses at the trial ...".
[121]
[39] It should be noted that it was not suggested by the State, either before the learned primary judge or in this Court, that the communications were not relevant to the matters in issue between the parties.[3] Nor, interestingly, was it suggested by the State that the communications were not material which "may help the person to whom the offer [required by s 20(1) of the PIPA] is made make a proper assessment of the offer" within the meaning of s 20(3) of the PIPA.
[122]
[40] The only question for the learned primary judge was whether the documents were clothed with legal professional privilege. Indeed, the issue actually tendered for decision by her Honour was whether legal professional privilege which was assumed to attach to the documents had been lost. In that regard, Ms Eden, the solicitor acting for the State in respect of Mr Watkins' claim, swore an affidavit that the letters of instruction and file note "were brought into existence for the dominant purpose of anticipated litigation". Ms Eden was not cross-examined in relation to her evidence. On that footing, the State claimed legal professional privilege in respect of these documents.
[123]
[41] It is noteworthy that Ms Eden did not assert that the report of Prof MacLennan itself was commissioned for the dominant purpose of anticipated litigation; yet, curiously, the communications between Ms Eden and Prof MacLennan relating to the provision by Prof MacLennan of his report were said to be informed by "the dominant purpose of anticipated litigation". In the proceedings before the learned primary judge, nothing was made of this curiosity which came into focus during the argument in this Court. It is fair to say that the arguments in this Court were distinctly different from those presented to her Honour. I will come to them in due course; but, for present purposes, it is sufficient to note that the learned primary judge commenced her consideration of the case presented to her by acknowledging what was uncontroversial before her, namely, that "letters of instruction from a legal representative to an expert whose opinion is sought are usually protected from disclosure by legal professional privilege". Her Honour also accepted the uncontroversial proposition that "[l]egal professional privilege is a substantive common law right which cannot be abrogated by legislation except expressly or by necessary implication."[4]
[124]
[42] In concluding that the State had waived the substantive right to withhold these communications from disclosure, her Honour said:
[125]
"The reference made to the material in the letter of instruction by Professor MacLennan is of itself sufficient to give rise to a right in the applicant to see the letters of instruction which apparently formed part of the factual basis of Professor MacLennan's opinion. The necessity for disclosure is such a situation was referred to by Lindgren J in ASIC v Southcorp ((2003) [2003] FCA 804; 46 ACSR 438 at 442 [21]) as follows:
[126]
'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 [copies of which form part of confidential communications between the client's lawyers and the expert witness] 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 documents; cf Attorney-General (NT) v Maurice[1986] HCA 80; (1986) 161 CLR 475 at 481 per Gibbs CJ, 487 - 488 per Mason and Brennan JJ, 492 - 493 per Deane J, 497 - 498 per Dawson J; Goldberg v Ng[1995] HCA 39; (1995) 185 CLR 83 at 98 per Deane, Dawson and Gaudron JJ, 109 per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd[1995] FCA 870 BC 506842; Australian Competition and Consumer Commission v Lux Pty Ltd[2003] FCA 89 at [46].'
[127]
This view is reinforced when one views, as the court was invited to do by the respondent, those letters of instruction. It appears that the reference by Professor MacLennan to the letter of instruction saying that Ms Pasalic lived about 40 minutes from the hospital is inaccurate. That fact does not appear in any letter of instruction. However it does appear that other factual material which forms part of the basis of Professor MacLennan's opinion is sourced from the letters of instruction. It would be quite unfair to the applicant to be left with an incomplete and, as it turns out, erroneous impression of the letters of instruction. They should be disclosed as the privilege which would otherwise inhere in their contents has been waived by implication. Their disclosure will reveal part of the factual basis for Professor MacLennan's report and also the nature and purpose of the telephone conversation between Ms Eden and Professor MacLennan.
[128]
It was argued that there can be no waiver by implication when the document which refers to the otherwise privileged document is itself subject to compulsory disclosure. In this case, however, the report of Professor MacLennan was voluntarily disclosed by the respondent by enclosing it as particulars of its rejection of the claim thereby waiving any legal professional privilege that would otherwise have inhered in the report.
[129]
True it is that had it not been disclosed voluntarily, it would have been required to be disclosed pursuant to s 27(1)(a)(i) and s 30(2) of PIPA, but it was, as I have said, disclosed voluntarily with any legal professional privilege thereby being expressly waived."[5]
[130]
[43] The source of the reference in Prof MacLennan's report to the distance Ms Pasalic lived from the hospital was inaccurate, in that this fact was not referred to in the letter of instruction. The fact in question was, however, asserted by Mr Watkins in his own notice of claim; and the truth of this fact was not controversial.
[131]
"For completeness I should say that it would not have made any difference to the reasoning or the result if the report of Professor MacLennan had been disclosed pursuant to the provisions of PIPA. The requirement for disclosure under s 27 and s 30 of PIPA was after all the legislative context in which the respondent used the report as particulars of its defence of the claim. The question is not whether the document which refers to a privileged document is itself the subject of privilege. It was not in Attorney-General (NT) v Maurice. Nor is it relevant that privilege in the original document has been abrogated by statute. Rather the question is whether the privilege that ordinarily inheres in letters of instruction has been waived in this instance."[6]
[132]
[45] As is apparent, the learned primary judge answered the question posed in the last sentence of the passage set out in the previous paragraph in the affirmative. Her Honour said:
[133]
"The High Court held in Mann v Carnell ([1999] HCA 66 at [28] - [29]; [1999] HCA 66; 201 CLR 1 at 13) that implied waiver occurs when the person claiming the privilege acts inconsistently with the maintenance of the privilege by, for example, failing to maintain the confidentiality of the communication which the privilege is designed to protect. It is widely accepted that disclosure of part of a document may lead a court to require the disclosure of the whole of the document if part disclosure is misleading or unfair to the other side (Bryce v Anderson[2005] QSC 216).
[134]
'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: see AG (NT) v Maurice[1986] HCA 80; (1986) 161 CLR 475.'
[135]
In Bryce v Anderson ((supra) at [10]), it was held that it would be 'unfair or misleading' if the documents were not disclosed because they were referred to 'cryptically' by the expert and without disclosing the context of the document. Wilson J also looked at the purpose for referring to the privileged documents in the expert reports - if the matter disclosed was 'integrally connected' to the proceedings, then it should be fully disclosed (See also Henderson v Low(2000) QSC 417 at [12] - [16]).
[136]
In this case, the letters of instruction were referred to by Professor MacLennan as part of the factual basis of his report. In those circumstances it would be unfair not to disclose those documents and misleading not to disclose the full contents of those documents."[7]
[137]
[46] In relation to the statement of the learned primary judge at the conclusion of the excerpt from her Honour's reasons in the preceding paragraph, the State submits that, because legal professional privilege is a substantive right which inheres in the State, and not a right inhering in Prof MacLennan, he cannot waive the State's right to confidentiality in the communications. This submission is plainly correct; but it is clear that her Honour did address what was put to her as the real question, namely, whether the deployment by the State of Prof MacLennan's report pursuant to s 20(3) for the purposes of supporting the State's denial of liability and performing the State's obligations under s 27(1)(a) of the PIPA served to effect such a waiver.
[138]
[47] The State submits that privilege in the communications was not waived by the use by the State of Prof MacLennan's report. In this regard, the State argues that it would not be unfair to the claimant if the communications associated with the obtaining of that report were not also disclosed.[8] In particular, the State argues that the provision of the report was compulsory so that no unfairness could be involved in its provision to Mr Watkins, and that, in any event, there was no unfairness in using the report while at the same time maintaining privilege in the communications associated with its production. Further, the State submits that on no view could the solicitor's file note of 23 November 2006 be regarded as a report which might be caught by s 27(1)(a) of the PIPA.
[139]
[48] Mr D J S Jackson QC, who appeared for the State, emphasised statements in the authorities to the effect that it cannot be unfair not to treat privilege as having been waived by the delivery of a document under compulsion of law.[9] Further,
[140]
Mr Jackson argued that there was no unfairness involved in relying upon
[141]
Prof MacLennan's report, while at the same time insisting on keeping the communications confidential as against Mr Watkins. In Mr Jackson's submission, the mistaken reference by Prof MacLennan to the source of a fact actually asserted by Mr Watkins did not detract from his argument.
[142]
[49] On Mr Watkins' behalf, Mr H Fraser QC, who appeared with Mr Harper of counsel, argued that it is important to keep steadily in view the precise conduct of the party which is said to give rise to the unfairness in maintaining its claim to privilege notwithstanding that conduct.[10] In Mr Fraser's submission, it was not the delivery of the report, or at least not the delivery of the report alone, which was said to be unfair, but, rather, the delivery of a report which had been commissioned in circumstances in which it was intended to be, and was, provided to Mr Watkins under s 20 of the PIPA as the basis for the State's refusal to recognise any liability to Mr Watkins' claim, and with a view to resolving Mr Watkins' claim without litigation. Thus, so it was said, the State made an entirely voluntary decision to deploy the report for the purposes of s 20(3) of the PIPA. Mr Fraser also submitted that Div 1 to Div 4 of Ch 2 of the PIPA was a milieu hostile to the existence of legal professional privilege in a report obtained for the purposes of s 20(3) or material associated with that report. The possibility that a claim might be resolved disadvantageously, or abandoned altogether, by a claimant is a mischief to which these provisions of the PIPA are squarely directed with the intention of ensuring full disclosure in order to prevent an imbalance of bargaining power. Such an imbalance may result from an imbalance of knowledge about the basis on which expert evidence has been obtained, and may lead to a disadvantageous settlement or the adoption of an uninformed position by one party which prevents a fair and reasonable settlement.
[143]
[50] Mr Fraser advanced an alternative submission to the effect that Prof MacLennan's report was commissioned and provided to Mr Watkins pursuant to s 20 of the PIPA and neither the report nor the associated communications between the State's solicitors and Prof MacLennan were the subject of an entitlement to confidentiality as against Mr Watkins.
[144]
[51] As to whether considerations of "unfairness" warrant the imputation of a waiver of privilege by the State, I respectfully agree with Mr Jackson that, while the considerations referred to by Mr Fraser may shed light on the intention of the legislature expressed in the PIPA, they do not serve to establish unfairness on the part of the State in seeking to maintain confidentiality in its solicitor's communications with Prof MacLennan while at the same time delivering his report in conformity with s 20 of the PIPA.
[145]
[52] With the greatest respect to those who may have a contrary view, I am unable to conclude that the deployment of Prof MacLennan's report, flawed as it is by an obviously incorrect reference to the source of a piece of information which
[146]
Mr Watkins himself propounds as true, was likely to be unfair to Mr Watkins unless he was also provided with the communications.
[147]
[53] On behalf of Mr Watkins, it is argued that the learned primary judge inspected the documents in question before reaching her conclusion, and that this Court must respect her Honour's assessment of the effect of the content of the communications. While that is no doubt true, it is not possible to discern from her Honour's reasons a statement of the particular basis on which her Honour concluded that the use of the report would be unfair if the otherwise privileged communications were not also disclosed other than the broad proposition that "[t]he reference made to the material in the letter of instruction by Professor MacLennan is of itself sufficient to give rise to a right in the applicant to see the letters of instruction which apparently formed part of the factual basis of Professor MacLennan's opinion."[11] Her Honour's reasons do not suggest, for example, that there is a likelihood that Prof MacLennan's report is based on a selection of facts from his instructions which is apt to give a misleading picture of the effect of those instructions or of the opinions which he truly holds. Nor was it suggested that the report can be properly understood only if reference is had to the questions asked of Prof MacLennan. At the highest for
[148]
Mr Watkins, it seems to be suggested that Mr Watkins would be better informed than he would otherwise be if he was provided with access to the communications, and that fairness requires that he should be so informed.
[149]
[54] There is support in authority, albeit derived from a different factual and statutory context, for the broad proposition enunciated and applied by the learned primary judge.[12] It is, no doubt, true to say that when one is seeking to apply a criterion as open-ended as "unfairness", much will depend upon the factual and legal context in which that assessment must be made. In seeking to apply so indeterminate a criterion, much will depend on the circumstances, factual and legal of each case. For that reason, I do not seek to suggest that the decisions to which her Honour referred were not correctly decided.
[150]
[55] It must be said, however, that the broad proposition that waiver will be imputed to ensure equality of advantage would mean that, in every case where an expert report is based on instructions as to the factual basis on which expert opinion is sought and the report is relied upon by the party that commissioned it in relation to the negotiation of a legal claim, the other party would have "a right" to see those instructions. There are reasons of principle and authority why I am unable to accept that broad proposition. In terms of principle, it seems to be inconsistent with the High Court's insistence upon the substantive nature of the right to confidentiality involved in legal professional privilege,[13] that the right can be treated as so fragile as to be susceptible of abrogation in consequence of a judicial impression that the other party would be better informed than he or she might be if the confidential information were not provided. It is in the nature of things that a party who enjoys a right to keep information relevant to a forensic contest confidential will also enjoy an advantage over that party's opponent: the mere existence of that advantage cannot be a reason for the abrogation of the right. It is the abuse of the right by conduct apt to confuse or deceive the opponent which is the basis for an imputed waiver of privilege.
[151]
[56] In point of authority, this broad proposition is, I think, distinctly inconsistent with the decision of the High Court in Attorney-General (NT) v Maurice[14] and of this Court in Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1).[15] In these cases, the "unfairness" argument, advanced by the party asserting an imputed waiver of confidentiality in the instructions for a document relied upon by a party, failed.
[152]
[57] The basis on which a waiver of legal professional privilege may be imputed to a party by operation of law has been explained in terms of a concern about "fairness" to the other party. In this context, "fairness" has not been treated as requiring that the other party should have all the information available to the party claiming privilege, but as requiring that that party should not abuse privilege so as to disadvantage the other party forensically. In Goldberg v Ng,[16] Deane, Dawson and Gaudron JJ explained imputed waiver of privilege by reference to earlier authorities in a passage which, though lengthy, deserves citation in full. Their Honours said:
[153]
"The circumstances in which a waiver of legal professional privilege will be imputed by operation of law cannot be precisely defined in advance. The most that can be done is to identify a number of general propositions. Necessarily, the basis of such an imputed waiver will be some act or omission of the persons entitled to the benefit of the privilege. Ordinarily, that act or omission will involve or relate to a limited actual or purported disclosure of the contents of the privileged material. When some such act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver, the governing consideration is whether 'fairness requires that his privilege shall cease whether he intended that result or not' (Wigmore on Evidence (McNaughton rev 1961), vol 8, par 2327, quoted with approval by Gibbs CJ and by Mason and Brennan JJ in Attorney-General (NT) v Maurice[1986] HCA 80; (1986) 161 CLR 475 at 481, 488). That does not mean, however, that an imputed waiver must completely destroy the privilege. Like an express waiver, it can be limited so that it applies only in relation to particular persons, materials or purposes.
[154]
In Attorney-General (NT) v Maurice ((1986) [1986] HCA 80; 161 CLR 475), it was accepted in all judgments that the question whether a limited disclosure gives rise to an implied or imputed waiver of legal professional privilege ultimately falls to be resolved by reference to the requirements of fairness in all the circumstances of the particular case. Thus, Gibbs CJ saw the decided cases as establishing that (Maurice[1986] HCA 80; (1986) 161 CLR 475 at 481):
[155]
'... the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production.'
[156]
Mason and Brennan JJ explained the doctrine of implied or imputed waiver as follows (Maurice[1986] HCA 80; (1986) 161 CLR 475 at 487 - 488):
[157]
'An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege. The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. Professor Wigmore explains: '[W]hen his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.' (Wigmore, Evidence in Trials at Common Law (1961), vol 8, par 2327 at 636) In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject matter: see Great Atlantic Insurance Co v Home Insurance Co ([1981]
'Waiver of legal professional privilege by imputation or implication of law is based on notions of fairness. It occurs in circumstances where a person has used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage. Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege.'
'... it is clear enough that an implied waiver may be required by fairness notwithstanding that it was not intended. It would not be fair to allow privilege to be waived with respect to a portion of a document or a conversation without requiring disclosure of the rest of it, at least if the document or conversation dealt with the one subject matter: see Burnell v British Transport Commission ([1956] 1 QB 187) and Great Atlantic Insurance Co v Home Insurance Co ([1981] 1 WLR 529 at 536; [1981] 2 All ER 485 at 490). So much may be obvious, but legal professional privilege is concerned with protecting the confidentiality of a relationship and if that confidentiality is abandoned by a particular disclosure it may be necessary in fairness, whether further disclosure was intended or not, to require disclosure extending beyond the particular communication (See Wigmore on Evidence (McNaughton rev 1961), vol 8, par 2327). The cases are not entirely consistent and perhaps what is fair by way of disclosure must ultimately depend upon the relevant circumstances.'"
[164]
[58] To complete the reference in this passage to Attorney-General (NT) v Maurice, it is important to note that, in that case, it was held that the claimants, by relying upon a claim prepared from source materials, had not waived privilege in those source materials. The contention that waiver of privilege should be imputed to the claimants was rejected because the other parties were not likely to be misled or otherwise disadvantaged by the way in which the book was deployed. While no doubt those other parties would have been better informed about the circumstances of the claim had they been allowed access to the source documents, this was clearly not regarded as a sufficient basis for concluding that the claimant's substantive right to confidentiality had been compromised. The same thinking is apparent in the decision of this Court in Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1)[17] where Pincus JA, with whom Thomas and de Jersey JJ (as their Honours then were) agreed, said of solicitors' letters related to commissioning of an expert report for use (described as "the category A documents"):
[165]
"There remains the submission that there has been a relevant waiver of privilege; it was argued for the appellant that such a waiver may take place as a result of disclosure, even compulsorily, of a document. The principal authority relied on was Attorney-General (NT) v Maurice, and that is authority for the view that a waiver may be imputed where 'disclosure or use of material that has been made renders it unfair to uphold the privilege in the associated material', per Gibbs CJ at 483; see also per Mason and Brennan JJ at 487.
[166]
It may reasonably be argued to be odd and perhaps inconvenient to uphold the claim of privilege in respect of documents in category A, the valuation report to which they relate having been disclosed; but I fail to see how the respondent's insistence upon privilege for the category A documents can reasonably be described as unfair."
[167]
[59] For these reasons, I am respectfully unable to see any inconsistency amounting to an abuse of the putative privilege, in the State disclosing Prof MacLennan's report, with its mistaken reference to the solicitors' letter as the source of information which information all sides accept is true, while maintaining a claim for privilege over the letter itself and other associated communications. I note that this conclusion accords with the decision of the New South Wales Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden.[18]
[168]
[60] The decision below can, however, be sustained, it seems to me, on the alternative basis agitated by Mr Fraser on behalf of Mr Watkins in this Court. In my respectful opinion, this submission should be accepted. In this regard, I have concluded that
[169]
s 20 of the PIPA, understood in its statutory context, is not to be interpreted with a presumption in favour of the preservation of privilege: the PIPA intends that the claimant should have as full and correct an understanding of the bases of a respondent's denial of liability and offer of settlement as the respondent itself does. No privilege ever attached to Prof MacLennan's report or to the associated communications; and Ms Eden's affidavit does not provide a sufficient basis for taking a contrary view. I shall now explain the reason for my conclusions.
[170]
[61] At this point, I should say that it must be accepted that the communications in question, including the solicitor's diary note of 2 November 2006, are "documentary material about the incident" in respect of which the claim has been brought. There is no reason to doubt that they may help Mr Watkins make a proper assessment of the State's offer to settle the claim on the basis that the claim is utterly worthless. The assumption on which the case has been argued before the learned primary judge, and in this Court, is that the communications in question are relevant to the action. This conclusion accords with that assumption. The State did not argue for a different view of the matter.
[171]
[62] The State does argue, however, that s 30 of the Act preserves the privilege which would otherwise clothe the communications on the basis that Ms Eden has sworn that the communications "were brought into existence for the dominant purpose of litigation". The State contends that the terms of s 30 of the Act are inconsistent with an intention on the part of the legislature to abrogate the privilege from disclosure which would otherwise attach to these communications.
[63] The State emphasises, rightly, that legal professional privilege is a rule of substantive law,[19] and that it is a right or immunity not lightly abrogated by statute. In The Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission,[20] Gleeson CJ, Gaudron, Gummow and Hayne JJ said:
[174]
"Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect. That rule, the expression of which in this Court can be traced to Potter v Minahan ((1908) [1908] HCA 63; 7 CLR 277 at 304, per O'Connor J), was the foundation for the decision in Baker v Campbell ((1983) [1983] HCA 39; 153 CLR 52). It is a rule which, subject to one possible exception, has been strictly applied by this Court since the decision in Re Bolton; Ex parte Beane ((1987) [1987] HCA 12; 162 CLR 514). Cases in which it has since been applied include Bropho v Western Australia ((1990) [1990] HCA 24; 171 CLR 1), Coco v The Queen ((1994) [1994] HCA 15; 179 CLR 427) and Commissioner of Australian Federal Police v Propend Finance Pty Ltd ((1997) 188 CLR 501). The possible exception to the strict application of that rule was the decision in Yuill ((1991) [1991] HCA 28;
[175]
[64] In R v Secretary of State for the Home Department; Ex parte Simms,[21] Lord Hoffmann explained that this approach to statutory construction proceeds upon a presumption in favour of the preservation of fundamental common law rights and immunities. His Lordship said:
[176]
"Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual."
[177]
[65] The provisions of the PIPA address the issue of privilege in s 30. They do so in a context in which the intention of the legislature, as expressed in s 20(3), is that any offer or counter-offer made to resolve a claim must be accompanied by the reports on which that offeror relies to make that offer and "all ... material ... in the offerer's possession that may help the person to whom the offer is made make a proper assessment of the offer." Further, s 27(1)(a)(i) requires the provision of relevant "reports and other documentary material about the incident ... to which the claim relates". The legislative intention manifested by s 4(2)(a) - (c), and s 21 is that, if possible, claims should be resolved without litigation by the PIPA's pre-litigation procedures, and that such a resolution should occur on the basis that each side is as fully informed about the strengths and weaknesses of its respective case that a fair and just resolution can be achieved without recourse to litigation.
[178]
[66] Having regard to these provisions of the PIPA, there is little reason to think that the "full implications of their unqualified meaning may have passed unnoticed [by the legislature] in the democratic process" so far as the impact on common law claims to confidentiality are concerned. Accordingly, there is no reason to read s 20 as subject to a presumption that a report obtained for its purposes is to be confidential. There is even less reason to suppose that the legislature intended that documentary material, which may aid an understanding of a report provided under s 20(3) to support an offer of settlement (and thus assist the assessment by the other party of the offer of settlement) might be withheld from a claimant as confidential between the other party and its expert.
[179]
[67] The purpose of the provisions of Div 1 to Div 4 of Pt 1 of Ch 2 of the PIPA is to ensure that sound claims are admitted and unsound claims are abandoned; in this way, unnecessary litigation of those claims is to be avoided. In such a context, it would be difficult, to say no more, to suggest that a report, obtained by a recipient of a claim for use in a procedure intended by the legislature to determine whether the person on whom the claim is made should accept or reject the claim as justified, was commissioned for the dominant purpose of litigation. The evident purpose of these provisions of the PIPA inevitably inform the actions of those who act in conformity with their requirements. That purpose is to ensure that good claims are paid and bad claims are abandoned before proceedings are commenced in court; that is to say, the "dominant" purpose is that there should not be litigation of the claim at all if that is reasonably possible.
[180]
[68] In my respectful opinion, if Prof MacLennan's report was obtained for the purposes of the pre-litigation procedures contemplated by the provisions of Div 1 to Div 4 of Pt 1 of Ch 2 of the PIPA, and particularly s 20, no privilege could have attached to it. The obtaining of a report by a party to enable that party to observe the requirements of s 20 of the PIPA is, in my opinion, not apt to clothe the report with legal professional privilege so as to engage s 30 of the PIPA. Indeed, I consider that s 20 is distinctly inconsistent with such a result. Section 20(3) and s 30 must be given an harmonious operation: the latter cannot be intended to cancel the former.
[181]
[69] I have already noted that there is no suggestion in this case that Prof MacLennan's report was obtained for any purpose other than compliance with s 20 of the PIPA. In truth, no such suggestion could be made. Prof MacLennan's report was commissioned for the purposes of complying with s 20. It was expressly stated in the letter from the State's solicitors dated 23 January 2007 that the report was provided, pursuant to s 20 of the PIPA, as the basis of the offer made by the State in that letter. In Ms Eden's affidavit, it was said that use in anticipated litigation was the dominant purpose of the communications. As I have said, the deponent was not cross-examined on this affidavit, and the accuracy of the affidavit's assertions of fact was accepted on Mr Watkins' behalf at first instance even though the deponent did not swear that she believed that the pre-proceeding processes were doomed to fail and that litigation would ensue. The important point is, however, that there is nothing in Ms Eden's affidavit to prevent a court from reaching, and acting upon, the obviously correct conclusion that Prof MacLennan's report was commissioned by the State for the purposes of the pre-proceeding procedures contemplated by the PIPA.
[182]
[70] While subjective assessments of "fairness" would not, in my respectful opinion, justify a conclusion that the State had waived privilege in these communications, the obtaining and use of the report of Prof MacLennan in compliance with s 20 of the PIPA did not make the report a subject of privilege: indeed, it served to ensure that the report was not the subject of confidentiality upon which the State could insist as against Mr Watkins.
[183]
[71] The crucial question is whether the communications were exempt from disclosure by virtue of s 30 of the PIPA. It is to be emphasised here that s 30(1) of the PIPA does not create legal professional privilege in any communication; indeed, the State does not suggest otherwise. Reading s 20, s 27 and s 30 together, one can see that
[184]
s 30(1) is concerned to remove from the scope of compulsory disclosure, under s 20 or s 27 documents whose claim to privilege arises because they were brought into existence for reasons other than compliance with s 20 or s 27 of the PIPA.
[185]
[72] Section 30(2) requires that "investigative reports, [and] medical reports" must be disclosed "even though otherwise protected by legal professional privilege, but they may be disclosed with the omission of passages consisting only of statements of opinion." It is readily apparent that s 30(2) of the PIPA is not intended to operate to preserve privilege in any of the documents described in s 20(3): it is unlikely in the extreme that the legislature intended that the "opinion section" of an expert report provided pursuant to s 20(3) would not be disclosed to the party to whom the report is provided. If the "opinion section" of such a report could be suppressed, the evident intention of s 20(1)(c) and s 20(3) would be frustrated because the report could not possibly help the person to whom the offer is made to understand the offer. Accordingly, it is, I think, clear that the legislature did not intend by s 30 that the obligations imposed by s 20 should be subject to confidentiality as against the party in whose favour those obligations were created.
[186]
[73] It may be argued that s 30(2) is concerned, not to abolish the privilege which otherwise attaches to communications, but to limit the exercise of that privilege. On this view of the operation of s 30(2), it could be argued that communications with a view to obtaining a report which would be privileged, at least initially, are also clothed with the privilege that originally attached to the report. On this basis, it might then be argued that a limitation upon the exercise of the privilege which attached to the report does not abrogate the privilege in the communications connected with bringing the report into existence. On this approach, the question would then become whether communications associated with the commissioning of a report which is intended to be, and is provided, under s 20 can be privileged bearing in mind that the report is itself not, and has never been, the subject of a valid claim of legal professional privilege. This question must, I think, be answered in favour of Mr Watkins: if the report to which the communications are connected was never itself the subject of privilege, the associated communications were also never the subject of privilege.
[187]
[74] At this point, it is necessary to refer to the basis on which communications by a lawyer for one party to a third party may attract legal professional privilege. Reference to the reasons of the members of the High Court in Baker v Campbell[22] shows that it is the association of the communications between a lawyer for a party and a third party with the production either of legal advice or material to assist in the conduct of litigation which attaches legal professional privilege to those communications. In Baker v Campbell,[23] Gibbs CJ said:
[188]
"The nature of legal professional privilege is described as follows in Halsbury's Laws of England (4th ed), vol 13, par 71:
[189]
' ... communications made to and from a legal adviser for the purpose of obtaining legal advice and assistance are protected from disclosure in the course of legal proceedings, both during discovery and at the trial ... . Any other communications as are reasonably necessary in order that the legal advice may be safely and sufficiently obtained are also protected, but in the case of communications to or from a non-professional agent or third party, such as a person who witnessed some event, the privilege only arises if litigation is threatened or contemplated.'
[190]
It is necessary for the proper conduct of litigation that the litigants should be represented by qualified and experienced lawyers rather than that they should appear for themselves, and it is equally necessary that a lawyer should be placed in full possession of the facts to enable him to give proper advice and representation to his client. The privilege is granted to ensure that the client can consult his lawyer with freedom and candour, it being thought that if the privilege did not exist 'a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case': Greenough v Gaskell ((1833) [1833] EngR 333; 1 My & K 98 at 103 [39 ER 618 at 621]). Notwithstanding the trenchant criticism of the privilege made by Bentham in his Rationale of Judicial Evidence (cited in Wigmore on Evidence, McNaughton rev (1961), vol viii, par 2291) the strong tendency of judicial opinion until recent times has been to regard the protection of communications between solicitor and client as 'fundamental to the due administration of justice', to use the words of Stephen J in Smorgon v Australia and New Zealand Banking Group Ltd ((1976) 134 CLR at 488). More recently, doubts have been expressed as to the value of the privilege (see Grant v Downs ((1976) 135 CLR at 685 - 686); and O'Reilly v State Bank of Victoria Commissioners (Ante, p 26)) and greater emphasis has been laid on the fact that it conflicts with another important principle of public policy, namely that all relevant evidence should be adduced to the court when it makes its decision: see also Waugh v British Railways Board ([1980] AC 521 at 531 - 532, 535 - 536). Nevertheless, confidentiality does tend to promote candour, and it would be a very great change in long established practice if a party were bound to reveal to the court such things as an advice on evidence given to him by counsel and statements taken from witnesses for the purpose of a pending action, and such a change could not be made without the fullest examination of its possible consequences."
[191]
"Notwithstanding strong judicial assertions of the value of the public interest said to be promoted by the privilege - for the most part assertions made a century ago - of which Greenough v Gaskell ((1833) [1833] EngR 333; 1 My & K 98 at 103 [39 ER 618 at 621]) is an example, it is by no means self-evident that the value of this public interest is greater than the public interest in facilitating the availability of all relevant materials for production in litigious disputes. If we nonetheless continue to accept that the privilege applies to communications in aid of litigation and communications made for the purpose of obtaining and giving legal advice, an evaluation of the competing considerations which lurk beneath the surface of the privilege indicates that the application of the privilege should not be extended outside the area in which it has thus far been recognized in Australian law.
[192]
It is one thing to say that the privacy or secrecy of lawyer-client communications made in aid of litigation, especially in aid of the litigation in which the privilege is claimed, shall prevail over an obligation to produce or disclose all materials relevant to the issues in the litigation. To take but one example: to compel the parties to disclose such communications made in the conduct of that litigation would be unfair to them, hamper the preparation of their cases and protract the determination of the litigation. But it is quite another thing to say that communications for advice, the purpose of which is unrelated to actual or prospective litigation, shall prevail over an obligation to produce or disclose materials relevant to the issues in litigation. Why such communications should be privileged, when communications for advice between client and accountant or marriage counsellor, which have taken place with litigation in view, are not privileged, does not admit of convincing explanation. There is also the striking contrast between the privileged lawyer-client communications made for the purpose of obtaining and giving advice and the non-privileged doctor-patient and priest-penitent communications. Each of the three relationships is highly confidential and in each the need for candour is a necessary element. The need for preservation of doctor-patient and priest-penitent confidentiality seems to be as strong as the need for preservation of lawyer-client confidentiality in the area of advice. Consequently the public interest in preserving the secrecy of the latter seems to be no stronger than the public interest in preserving the secrecy of the former."[24]
[193]
"Under common law as recently declared for Australia, client's legal privilege protects from disclosure any oral or written statement, or other material, which has been created solely for the purpose of advice, or for the purpose of use in existing or anticipated litigation (Grant v Downs ((1976) [1976] HCA 63; 135 CLR 674) at 682; see also National Employers' Mutual General Insurance Association Ltd v Waind ((1979) [1979] HCA 11; 141 CLR 648)). This defines the scope of the privilege more narrowly than elsewhere. In the United Kingdom it is enough if the dominant purpose for coming into existence of the material is legal advice or litigation (Waugh v British Railways Board ([1980] AC 521)).
[194]
The privilege does not attach to documents which constitute or evidence transactions (such as contracts, conveyances, declarations of trust, offers or receipts) even if they are delivered to a solicitor or counsel for advice or for use in litigation. It is not available if a client seeks legal advice in order to facilitate the commission of crime or fraud or civil offence (whether the adviser knows or does not know of the unlawful purpose) (see Reg v Cox and Railton ([1884]
[195]
14 QBD 153); Bullivant v Attorney-General (Vict) ([1901] AC 196); R v Smith ((1915) 11 Cr App R 229 at 238)); but is of course available where legal advice or assistance is sought in respect of past crime, fraud or civil offence. Hence the subject matter of the privilege is closely confined: in brief it extends only to oral or other material brought into existence for the sole and innocent purpose of obtaining legal advice or assistance."[25]
[196]
"It may be accepted that the basic reason why the law has come to respect professional confidences between lawyer and client is the belief that in so doing the client will be encouraged to be entirely open and candid in telling his story to the lawyer - to bare his breast to his lawyer, as Sir George Jessel MR said in Anderson v Bank of British Columbia ((1876) 2 Ch D 644 at 649). Conversely, the cloak of secrecy may encourage the lawyer to be completely frank in the expression of his advice. But confidentiality alone cannot supply the reason for the privilege. Originally it may have done so, in common with the protection which the law at that time afforded to other confidential relationships. In the sixteenth and seventeenth centuries the privilege was based in the duty of the solicitor to respect professional confidences. It was a matter of honour and consequently the privilege belonged to him rather than to the client: Wigmore on Evidence, McNaughton rev (1961) vol 8, par 2290. However, in the eighteenth century the law moved decisively away from this approach, with the Duchess of Kingston's Case ((1776) 20 State Tr 355) providing the turning point. The public interest, not merely the protection of confidentiality, became the reason for the rule. Thereafter, the only profession to have the privilege of
[197]
non-disclosure was the legal profession. The historical evolution of the privilege is described by Lord Simon of Glaisdale in D v National Society for the Prevention of Cruelty to Children ([1978] AC 171 at 237 - 239).
[198]
The public interest which led the common law to favour the relationship between solicitor and client over other confidential relationships was the recognition that the involvement of representatives skilled in the law who had been fully instructed was indispensable to the proper functioning of the legal system, the law 'being a complex and complicated discipline': Grant v Downs ((1976) [1976] HCA 63; 135 CLR 674 at 685). The breadth of that interest found expression in many of the cases in the last century. In Russell v Jackson ((1851) [1851] EngR 955; 9 Hare 387 at 391 [68 ER 558 at 559 - 560]) Turner VC said:
[199]
'It is evident that the rule which protects from disclosure confidential communications between solicitor and client does not rest simply upon the confidence reposed by the client in the solicitor ... but upon the necessity of carrying it out. Lord Brougham in Greenough v Gaskell ((1833)
The well-known statement of Lord Brougham referring to 'the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence' ((1833) 1 My & K at 103 [39 ER 621]) is then cited. The Vice-Chancellor's remarks were approved by the Court of Crown Cases Reserved in Reg v Cox and Railton ((1884)
[202]
"The explanation of legal professional privilege was initially seen, when the doctrine was recognized during the reign of Elizabeth I, as being the professional obligation of the barrister or attorney to preserve the secrecy of the client's confidences (see Wigmore on Evidence, McNaughton rev (1961), vol viii, par 2290; Radin, 'The Privilege of Confidential Communication Between Lawyer and Client', California Law Review, vol 16 (1928) at 487). From at least the eighteenth century however, it has been generally accepted that the explanation of the privilege is to be found in an underlying principle of the common law that, subject to the above-mentioned qualifications, a person should be entitled to seek and obtain legal advice in the conduct of his affairs and legal assistance in and for the purposes of the conduct of actual or anticipated litigation without the apprehension of being thereby prejudiced (see Wigmore, par 2291). The fact that the privilege is not restricted to the particular legal proceedings for the purposes of which the relevant communication may have been made or, for that matter, to proceedings in which the party entitled to the privilege is a party plainly indicates that the underlying principle is concerned with the general preservation of confidentiality. That is also made clear by the rationale of the underlying principle which was explained by Stephen, Mason and Murphy JJ in Grant v Downs ((1976) 135 CLR at 685) in words which I would respectfully adopt:
[203]
'The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision.'"[27]
[204]
"Legal professional privilege attaches only to communications made for the purpose of giving or receiving advice or for use in existing or anticipated litigation. Moreover, if the communication in question is in the form of a document submitted by a client to his solicitor for use in existing or anticipated litigation, privilege will attach to it only if it comes into existence solely for that purpose. The privilege cannot operate to put beyond the reach of the law documentary or other material which has an existence apart from the process of giving or receiving advice or the conduct of litigation. See Grant v Downs ((1976) [1976] HCA 63; 135 CLR 674). There is no privilege for physical objects other than documents and there is no privilege for documents which are the means of carrying out, or are evidence of, transactions which are not themselves the giving or receiving of advice or part of the conduct of actual or anticipated litigation. Communications which would otherwise be privileged lose their immunity from disclosure if they amount to participation in a crime or a fraud. The compass within which the doctrine of legal professional privilege operates is, therefore, narrow having regard to the principle which it protects."[28]
[205]
[80] These citations from Baker v Campbell show that legal professional privilege attaches to communications by a party's lawyers with third parties where those communications are directed to obtaining, either legal advice, or assistance in pending or anticipated litigation. The mere fact of a communication between a lawyer for a party and a third party does not attract privilege. On the other hand, it is not necessary that the lawyer's pursuit of assistance from the third party be ultimately successful: it is the purpose for which the communication occurs which clothes it with the privilege. What is important for present purposes is that it is necessary that the dominant purpose of the pursuit of assistance from the third party be either the obtaining of legal advice or use in litigation. It is the object of the communication which causes the communication to be privileged.
[206]
[81] Thus, under the general law, the operation of which is assumed by s 30(1) of the PIPA, privilege in communications between a lawyer for one party to litigation and a third party for the purpose of obtaining material to assist in the litigation arises because material is sought from the third party for the dominant purpose of giving or receiving legal advice for use in existing or anticipated litigation.[29] Since it is the pursuit of material for a privileged purpose which gives rise to privilege in the communications involved in that pursuit, if the report sought by the communications in question can never be the subject of legal professional privilege it would be distinctly anomalous if those communications could be the subject of privilege. This anomaly would not be resolved merely because the solicitor commissioning the unprivileged report genuinely believed that the associated communications were taking place for the dominant purpose of litigation.
[207]
[82] Accordingly, I have concluded that the communications relating to the commissioning of Prof MacLennan's report were not privileged under the general law. The point, for present purposes, is not that the PIPA has impliedly abrogated privilege in communications associated with the production of a report to be used in litigation; the point is that the effect of s 20 of the PIPA is that the report and the associated communications were never the subject of privilege.
[208]
[83] It may fairly be said that the scope of the obligation of disclosure resulting from
[209]
s 20, as I understand it, is far reaching in that it may require the production of communications between parties' lawyers and third parties which, in other contexts, would be privileged; but to say that is simply to acknowledge that the broad language of s 20(3) is not to be read down by a presumption in favour of confidentiality in circumstances where a process of negotiation mandated by the statute is intended to result in agreements which will obviate the need for litigation. In such circumstances, it is hardly surprising that the legislature would require a level of disclosure necessary to ensure that claims are compromised only on the footing that each party is equally well-informed about the issues. And, in truth, for several reasons, this conclusion is not as far-reaching as it might first appear. First, communications which are not apt to help the offeree assess the offer need not be provided under s 20(3) of the PIPA. Secondly, and more importantly perhaps, reports which are obtained for the dominant purpose of enabling a respondent to a claim to take legal advice on the claim will be privileged: such reports are outside the scope of s 20(3) and, even if they fall within the descriptive words in
[210]
s 27(1)(a)(i), the benefit of the privilege would be maintained by s 30(1) of the PIPA. In this case, of course, it was not suggested that Prof MacLennan's report was obtained for the purpose of the State obtaining legal advice.
[211]
[84] This case is distinguishable from Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1).[30] In that case, the applicable rule of court provided that a document "consisting of a statement or report of an expert is not privileged from disclosure". The Court held that letters (described as the Category A documents) from the solicitors for a party regarding a report commissioned from an expert remained privileged from disclosure even though the relevant rule of court abrogated that privilege in the case of the report itself. Pincus JA summarised one of the arguments which the Court rejected in the following terms:
[212]
"if a witness' statement in the possession of a party has to be disclosed, under the rules, then documents which came into existence only to produce the statement are not privileged. This result, it was said, flowed either because the principal document - witness' statement - is not confidential or because its production, even compulsorily, waives privilege in respect of the other documents."[31]
[213]
[85] Pincus JA, with whom Thomas and de Jersey JJ agreed on this point, rejected this argument. His Honour was concerned with whether privilege which had arisen in reports and associated communications ceased to attach to the associated communications because of a legislative statement that the report prepared for the purposes of litigation should not be privileged from disclosure. His Honour proceeded, with evident reluctance, on the basis that the relevant legislation had not expressed with sufficient clarity an intention to abrogate privilege which had attached to associated communications. His Honour said:
[214]
"This was said to be so, as I understood the argument, by necessary implication.
[215]
Unless the letter of instruction, improbably, gave the valuer some confidential instruction as to the desired content of the report it is difficult to understand what in the letter of instruction could be really confidential. Commonsense may be thought to favour the appellant's suggestion that the requirement that the valuation report be disclosed necessarily opens the way to disclosure of such documents as the letter of instruction in response to which it was given. On the other hand it would have been simple enough for those who made the rule to draw O 35 r 5(2) more broadly so as to require disclosure of categories of documents other than those expressly mentioned - 'a statement or report of an expert'. It does not appear to me that the implication put forward by the appellant can be said to be necessary and I therefore reject that argument."[32]
[216]
[86] In my respectful opinion, the provisions of the PIPA to which I have referred do indicate a legislative intention that reports and associated communications which come into existence to meet the requirements of s 20 of the PIPA do not become subject to privilege.
[217]
[87] In my respectful opinion, the alternative submission made on behalf of Mr Watkins should be accepted. Ms Eden's unchallenged evidence as to the purpose for which the communications in question occurred does not compel a different result. As I have noted, the State's letter of 23 January 2007 expressly says that
[218]
Prof MacLennan's report was provided pursuant to s 20 of the PIPA. It is not necessary that it should be unfair of the State to withhold other information associated with the obtaining of the report. It is sufficient that, the report having been obtained and provided pursuant to s 20, this other information may help
[219]
Mr Watkins assess the State's offer. Mr Watkins would be likely to derive assistance in that regard from this information. For that reason, I would dismiss the appeal.
[220]
[88] I would also order that the appellant pay the respondent's costs of the appeal to be assessed.
[221]
[89] MACKENZIE J: The orders to which this appeal relates arose from an application by the litigation guardian of a child alleged to have suffered injuries during the birth process at a public hospital. He was successful in obtaining orders for disclosure of certain documents. The orders related to letters from the respondent's solicitors to Professor Alastair MacLennan and file notes, minutes or memoranda created by the solicitors recording a telephone conference between Professor MacLennan and the solicitor with conduct of the matter. The grounds of appeal were that the learned primary judge had erred in:
[222]
(a) finding that the appellant had waived legal professional privilege in the documents;
[223]
(b) failing to find that the documents described as notes, minutes or memoranda were protected by legal professional privilege; and
[224]
(c) failing to find that the respondent had not established that the appellant was required to give the documents to the respondent pursuant to s 27 of the Personal Injuries Proceedings Act 2002 (Qld) ("the PIPA").
[225]
[90] The solicitor who had the carriage of the matter deposed that the respondent claimed legal professional privilege over the letters of instruction and in respect of any file notes on the basis that those documents were brought into existence for the dominant purpose of anticipated litigation. Her assertion that privilege existed was accepted as being genuinely made within the proper bounds of principle, subject to the issues of whether waiver had occurred or whether the position was affected by the PIPA.
[226]
[91] For present purposes, it is sufficient to note that Professor MacLennan's report commenced by mentioning the three letters from the solicitors requesting his opinion. The report also records (erroneously) that the letter of instruction said that the mother of the child lived about 40 minutes from the hospital. It was uncontroversial that that was in fact true, since it was asserted in the Notice of Claim, but it was also accepted that it did not appear in the letters of instruction themselves. The Notice of Claim was, the Professor said in his report, one of the documents on which his opinion was based.
[227]
[92] The essential steps in the reasoning in the judgment appealed from are firstly, that letters of instruction from a legal representative to an expert whose opinion is sought are usually protected from disclosure by legal professional privilege (Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1) [1999] 1 Qd R 141; Henderson v Low [2000] QSC 417; Australian Securities and Investments Commission v Southcorp Limited [2003] FCA 804; (2003) 46 ACSR 438; Bryce v Anderson [2005] QSC 216). Legal professional privilege is a substantive common law right which cannot be abrogated by legislation except expressly or by necessary implication.
[228]
[93] Secondly, independently of statutory abrogation of the privilege, it can be waived either expressly or by implication. Implied waiver can occur when a reference to the otherwise privileged material in a document which has been disclosed makes it unfair to maintain the privilege (Attorney-General (NT) v Maurice at 487-488).
[229]
[94] Thirdly, the reference made to the material in the letter of instruction by Professor MacLennan was of itself sufficient to give rise to a right in the applicant to see the letters of instruction which apparently formed part of the factual basis of his opinion (Australian Securities and Investments Commission v Southcorp Limited at 442).
[230]
[95] Fourthly, the report had been disclosed voluntarily, with any legal professional privilege thereby being expressly waived. However, even had it not been disclosed voluntarily, it would have been required to be disclosed pursuant to s 27(1)(a)(i) and s 30(2) of the PIPA. Further, the same result would have been reached if the documents had been disclosed under the PIPA. The question was whether the privilege that ordinarily inhered in letters of instruction had been waived on the facts of the matter.
[231]
[96] The reasons then discussed the notion that disclosure of part of a document may lead a court to require the disclosure of the whole of the document if part disclosure was misleading or unfair to the other side (Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at 13; Bryce v Anderson).
[232]
[97] Application of these principles to the documents sought in the application led to the conclusion that the letters of instruction should be disclosed. Ordinarily they would be protected from disclosure by legal professional privilege, but that privilege had been impliedly waived. The whole of the letters of instruction should be disclosed lest the disclosure of part only be misleading. Any file note by the solicitors recording the telephone conversation between Professor MacLennan and the solicitor should be disclosed if the file note revealed that the solicitor gave him further instructions or received an oral report from him which had been reduced to writing by her.
[233]
[98] The structure of the judgment appealed from reflected the argument addressed to the primary judge. In this Court, however, different, more fundamental issues emerged in defence of the orders made. The arguments are succinctly summarised by Keane JA in his reasons.
[234]
[99] To put the issue in a factual setting, it is desirable to analyse what the report contains. It is an inevitable inference from Part B of the report "Documents on which this opinion is based", that Professor MacLennan had been supplied with those documents on the appellant's behalf. Reading his Part C ("Summary of case") leaves the impression that, with very limited possible exceptions, the factual basis upon which he based his opinion is to be sourced to the medical records at his disposal. Where other matters of a factual nature are referred to, the opinion makes it plain.
[235]
[100] For example, in the two passages where the report says it was "apparently" policy and hospital protocol in 2001 to allow patients "without complications" or who were "low risk patients who had been given prostoglandin" to go home and return later are easily referable to the documents he had. He states he had the Nambour General Hospital Prostoglandin (PGE2) Induction Policy 2001. There was also an information sheet which, if not annexed to the policy document, was on file in the records of the child's mother, according to the respondent's solicitor's affidavit at the hearing below. The Professor had these records. All of those documents had been given separately to the respondent at his solicitor's request as early as 20 April 2006, some months before the opinion was sought from Professor MacLennan.
[236]
[101] There was also some speculation by him about the possibility that there may have been a delay, comparable to the delay caused in the child's mother driving back to the hospital, even if she had been in hospital and a midwife had to be summoned. However, that speculation is of no consequence since a 40 minute delay in treating her was assumed for the purposes of the opinion.
[237]
[102] I have had the opportunity to read Keane JA's analysis of the issue of unfairness. I agree with his analysis of the application of the authorities to which he refers to the facts of this case. The reference to the form of Professor MacLennan's report demonstrates why in this case there was not "unfairness" warranting an implied waiver of privilege merely because there was a reference in the report to the letters of instruction.
[238]
[103] The solicitor's letter of 23 January 2007 to the respondent addresses the requirements of s 20 of the PIPA in the following respects:
(b) there is an estimate of damages said to be fair and reasonable (s 20(1)(d));
[241]
(c) there is an offer to settle, the offer being "$nil" (s 20(1)(e)); and
[242]
(d) there is an invitation to the claimant applicant to make a written offer (s 20(1)(c)).
[243]
[104] The letter does not expressly say that the report of Professor MacLennan was being given to the claimant in discharge of the obligation under s 20(3).Section 20(3) requires an offer to be accompanied, by amongst other things, "medical reports in the offerer's possession that may help the person to whom the offer is made make a proper assessment of the offer". A copy of the Professor's report was in fact enclosed with the letter but its expressed function was to disclose the basis of denial of liability. Its contents were, in terms of the letter, repeated and relied on as the basis of the denial of liability. There is no express obligation under s 20 to do that, but if there is a medical report of the character described in s 20(3), it must accompany the offer.
[244]
[105] Having regard to the emphasis in the letter on compliance with obligations under s 20, there is no reason to think that there would have been inadvertence to s 20(3). However it may also be noted that, in the primary application, the applicant did not consider s 20 to be "relevant legislation" in the written outline or in oral submissions.
[245]
[106] In the primary application some focus was placed on s 27.Section 27(1) requires a respondent, on a continuing basis, to give a claimant copies of various classes of documents in the respondent's possession. Two of those classes are:
[246]
"(i) reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates;
[247]
(ii) reports about the claimant's medical condition or prospects of rehabilitation."
[248]
It appears to be assumed in the respondent's written submissions below that s 27 required the disclosure of the Professor's opinion. On the other hand, the applicant below denied, partly for reasons relating to the form of the application, that the documents were required to be given under s 27. As the argument was formulated, it was that the statutory obligation in s 27 was to "give copies" of particular documents, or "give information" requested "about" the subject matter of the various categories referred to in s 27. It was submitted that the obligation in s 27 was not an obligation to "disclose" the material, which was what the application sought. The reasons given by the primary judge were to the effect that, had the opinion not been disclosed voluntarily, it would have been required to have been disclosed pursuant to s 27(1)(a)(i) and s 30(2) of the PIPA.
[249]
[107] Section 30 is not without difficulty. Section 30(1) contains an assumption that the existence of legal professional privilege is not excluded by the obligation to disclose under Division 1 or Division 2. But, by s 30(2), an investigative report, a medical report and a report relating to the client's rehabilitation must be disclosed "even though otherwise protected by legal professional privilege". It is not necessary for the resolution of this case to attempt to define the scope and practical application of the rider in s 30(2) relating to omitting passages consisting only of statements of opinion from the obligation. In this case the whole report, including content in the form of opinion was supplied. And there is the issue of whether the PIPA sufficiently discloses an intent to abrogate legal professional privilege in relation to the process of assembling information to comply with s 20.
[250]
[108] It was not suggested that s 33 was of any relevance. The purpose of s 33 is to afford the same extent of protection in respect of information reports and documentary material given or disclosed under Ch 1 Pt 2 Division 1 or Division 2 as is given to such documents disclosed in a proceeding before the Supreme Court. Section 33 seems not to be concerned with legal professional privilege.
[251]
[109] The purposes of the PIPA are to be achieved, according to s 4(2), inter alia, by:
[252]
"(a) providing a procedure for the speedy resolution of claims for damages for personal injury to which this Act applies; and
[253]
(b) promoting settlement of claims at an early stage wherever possible; and
[254]
(c) ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial;
[255]
The rigidly structured procedures in the PIPA, which include processes to ensure that relevant information is exchanged in a timely way prior to the commencement of proceedings, represent a major departure from the traditional course of resolution of disputes. I have had the advantage of reading Keane JA's and Jerrard JA's reasons. I respectfully agree with Keane JA's analysis of the operation of s 20 in the factual context of the case and with his analysis of the scope of legal professional privilege under the PIPA.
[256]
[110] Before concluding, it should be noted that the argument did not extend to analysing the ultimate forensic use to which the file notes ordered to be produced might be put if proceedings were commenced. There are probably two aspects to them. One is whether they reveal that there were further instructions in addition to those relied on in the opinion. The second is the existence or otherwise of a summary of any oral report given. Such summary would, of course, only be the solicitor's understanding of what the expert said. The forensic limits of the use to which any apparent divergence between the expert's written opinion and what is, essentially, a note made by the solicitor summarising her understanding of what she had been told orally may be quite circumscribed if the purpose is to attack the expert's report's reliability or creditworthiness. Those issues would arise if the matter went to trial, but are not critical to the questions raised in this appeal.
[257]
[111] I agree with the orders proposed by Keane JA.
[19]The Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission[2002] HCA 49; (2002) 213 CLR 543 at 552 [9].