PIPA: legal professional privilege & disclosure during without prejudice conferences

Felgate v Tucker [2011] QCA 194

Margaret McMurdo P with Fraser and White JJA concurring: the Personal Injuries Proceedings Act 2002 (Qld) (“the Act”) did not displace legal professional privilege between a client and lawyer when partial disclosure is made during a without prejudice conference.

[1]

MARGARET McMURDO P: The appellant, Ms Wendy Felgate, underwent laparoscopic surgery on 14 November 2007 at the Royal Brisbane and Women’s Hospital. The respondent, Dr Paul Tucker, was her anaesthetist. During the surgical procedure, Ms Felgate experienced a phenomenon known as “surgical awareness”: she was conscious but paralysed and unable to communicate her state of consciousness to medical staff. Five days later, Ms Felgate gave Dr Tucker an initial notice of her claim for damages for personal injuries arising from this incident under s 9A Personal Injuries Proceedings Act 2002 (Qld) (“the Act”). During a subsequent compulsory conference between the parties under the Act Dr Tucker produced a document entitled “Interpretation of anaesthetic record” which I will refer to as “the document”. Ms Felgate sought disclosure of the statement Dr Tucker gave to his lawyers on which the document was based. Dr Tucker claimed legal professional privilege and refused to produce any statement or notes concerning his instructions to his lawyers. Ms Felgate brought an application in the Trial Division of this Court for an order that Dr Tucker provide Ms Felgate with any relevant documents including any statements of Dr Tucker in respect of her claim for damages for personal injuries sustained on 14 November 2007. The primary judge dismissed the application with costs. Ms Felgate has appealed from that decision.

[30]

The provisions of the Act do not abrogate the legal professional privilege set out in s 30(1).13 Watkins v State of Queensland dealt with a question of communication between a lawyer and third parties, not a communication between lawyer and client. It was not, therefore, authority for the proposition that a statement of a party given to that party’s lawyers instructed to resist the claim was disclosable to the defendant. Watkins was distinguishable on its facts but, in any case, it did not state that a provision of the Act abrogated the privilege which attached to a communication between a lawyer and client. The affidavits from Dr Tucker’s solicitors14 clearly stated that Dr Tucker’s statements to them were for the purpose of obtaining legal advice. Communications between a lawyer and a client for the purpose of seeking legal advice are privileged, irrespective of whether they are given for the dominant purpose of litigation. The judge cited the following passage from Halsbury:

“Legal professional privilege is a substantive general principle of the common law under which a person is entitled subject to defined qualifications and exceptions to preserve the confidentiality of statements and other materials which have been made or brought into existence for the dominant purpose of the persons seeking or being furnished with legal advice, or legal services by a practising lawyer, for the dominant purpose of preparing for existing or anticipated judicial or quasi-judicial proceedings.”

[37]

In dealing with these contentions it is convenient to begin with a discussion of Watkins. There, the first issue was whether the notes made by the defendant’s solicitor of a telephone conference with a prospective expert witness constituted a “report” under s 30(2).23 If so, the notes were not privileged. The second issue concerned a letter or letters of instruction to the prospective expert witness. Although it was subject to legal professional privilege, the claimant contended the privilege was waived once the defendant’s solicitor gave the claimant a copy of the expert’s report under s 20(3) and s 27(1).24

Keane JA (with whom MacKenzie J agreed and Jerrard JA generally agreed) noted:

“… I have concluded that s.20 of the [Act], understood in its statutory context, is not to be interpreted with a presumption in favour of the preservation of privilege: the [Act] 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.25

The purpose of the provisions of the Act:

“…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.26

…[The expert] 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 [Act], 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 [Act] is, in my opinion, not apt to clothe the report with legal professional privilege so as to engage s. 30 of the [Act]. 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.27

…the obviously correct conclusion that [the expert] report was commissioned by the [defendant] for the purposes of the pre-proceeding procedures contemplated by the [Act].28

…the obtaining and use of the [expert] report … in compliance with s. 20 of the [Act] 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 [defendant] could insist as against [the claimant].29

 The crucial question is whether the communications were exempt from disclosure by virtue of s. 30 of [the Act]. It is to be emphasised here that s. 30(1) of [the Act] does not create legal professional privilege in any communication… . Reading s. 20, s. 27 and s. 30 together, one can see that 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 Act].”30

Keane JA referred to cases concerning professional privilege attaching to communications by a lawyer for one party to a third party31 and concluded that the communications relating to the commissioning of the expert report and the report itself were not privileged under the general law and were never the subject of privilege.32 His Honour added:

“It may fairly be said that the scope of the obligation of disclosure resulting from 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 Act]. 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 s. 27(1)(a)(i), the benefit of the privilege would be maintained by s. 30(1) of [the Act]. In this case, of course, it was not suggested that [the expert’s] report was obtained for the purpose of the [defendant] obtaining legal advice.”33

Keane JA concluded that the Act indicated “a legislative intention that reports and associated communications which come into existence to meet the requirements of s 20 of [the Act] do not become subject to privilege.”34

[38]

 Ms Felgate has also placed emphasis on Allen.35 In that case, the applicant suffered brain damage during a hospital medical procedure when he was 16 months old. He was eight years old when he brought an application for the disclosure of documents in the defendant’s possession relating to the medical services it provided to him, including reports prepared as a result of the defendant’s investigation into the incident. The questions were whether the documents were protected from 36 Allen disclosure by legal professional privilege and, if so, whether they were required to be disclosed, wholly or in part, under s 30(2) as “investigative reports”.36 After setting out the relevant statutory provisions and referring to Watkins, Applegarth J noted that no notice of claim under s 9 of the Act had been given so that the respondent had no obligation under s 20(1)(a).37 Applegarth J was “…concerned with reports prepared years before any notice of claim may be served and which were prepared to create a contemporaneous record of events associated with the provision of medical services at about the time of a medical incident.”38

His Honour considered that s 30, in the context of the initial notice requirements of s 9A and the disclosure obligation imposed by s 9A(8)(b), should be construed as equipping a claimant with essential facts.39 The term “investigative reports” in s 30(2) meant “a report that is made as a result of an investigation into a medical incident.”40 In reaching that conclusion, Applegarth J relied on Jerrard JA’s statement in Watkins 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.”41 Applegarth J concluded42 that:

“…a witness statement or a file note recording information about the circumstances of a medical incident involving a claimant is a report about the incident. If the report is produced in the course of an investigation into the incident … it [is] … an investigative report.”43

[39] Ms Felgate also referred to James.44 In that case, this Court considered whether a witness statement annexed to a loss adjuster’s report was required to be disclosed to the applicant under the WorkCover Queensland Act 1996 (Qld) (now repealed).45 WorkCover contended the document was privileged. The statute excluded investigative reports from privilege. The report, but not the witness statement, was disclosed at a compulsory conference under the statute. Pincus JA and Byrne J (Thomas JA dissenting) gave separate reasons for allowing the appeal and ordering that the witness statement was required to be disclosed. Pincus JA noted that when the report was delivered to the lawyers who commissioned it, the witness statement was attached to the report, making it a single document. The witness statement standing alone would have been privileged. But the single document which included the attached witness statement was required to be disclosed as an investigative report under s 288(2) WorkCover Queensland Act.

Byre J considered that the report, including the witness statement, was commissioned for an investigation of the injury, adding:

“At that stage, eventual litigation was no doubt a possibility. But there is nothing to show that litigation then presented as a likely outcome of the processes that had to be endured before proceedings could be commenced. There was not even material to suggest that many back injury claims surmount the pre-litigation hurdles the Act erects and become litigious these days.”46

The report was therefore not privileged as it could not be shown that it was procured for confidential use in the giving of legal advice.47 Further, Byrne J considered that the witness statement was a part of the report required to be disclosed under the Act for the reasons given by Pincus JA.48

[40] Ms Felgate placed some weight on Dr Tucker’s admission of responsibility the day after her unpleasant surgical experience49 and the inconsistency with this approach and his subsequent tack at the compulsory conference. But Dr Tucker’s admission of responsibility was consistent with his role in the surgical procedure and his wanting to fully assist Ms Felgate in her recuperation. It was, as indeed Ms Felgate’s counsel accepts, not necessarily an unequivocal admission of liability. It is of no assistance in resolving the questions in dispute in this appeal.

[41] Watkins, Allen and James are also of little assistance in determining the issues in this case. They each concerned whether legal professional privilege attached to third party communications, not whether legal professional privilege attached to communications between clients and lawyers. Any statements as to the interpretation of the Act in those cases must be construed in that context.

[42] It is self-evident that the legal professional privilege with which this case is concerned is that between lawyer and client. Where such privilege exists, it attaches to all communications passing between clients and their legal advisors in both civil and criminal cases, with the result that legal advisors need not give evidence of those communications without their clients’ consent. The privilege attaches to both oral communications and to documents recording those communications so as to enable clients to obtain, and lawyers to give, legal advice and assistance with reference to litigation that is either actually taking place or is in the contemplation of the clients. The concept is an ancient one dating back to Elizabethan times. But more recently it has been said to be based on public interest and the belief that disputes leading to litigation are most justly and expeditiously handled by lawyers who can act more effectively if the parties they represent feel free to confidentially provide them with all the facts as they know them.50

[43] In Esso Australia Resources Ltd v Federal Commissioner of Taxation,51 Gleeson CJ and Gaudron and Gummow JJ discussed the obvious tension, highlighted in the present case, between the policy leading to legal professional privilege and the desirability that, in the interests of justice, parties to litigation should obtain the fullest possible access to relevant facts. Their Honours recognised the need to balance these competing considerations.52 They determined that the approach previously taken in Grant v Downs,53 that privilege attached only to communications made or documents prepared for the sole purpose of the lawyer providing legal advice or legal services, should not be followed. Instead, the test was whether the communications or documents were prepared for the dominant purpose of a lawyer providing legal advice or legal services.54

[44] It is well established that legal professional privilege cannot be abrogated by legislation except where the legislative intent to do so is clearly and unequivocally revealed, either expressly or by necessary implication: Baker v Campbell;55 Cockerill v Collins;56 and Watkins.57

[45] As the primary judge recognised, there was no reason on the evidence to doubt the statements of Ms Nixon and Mr Crofts that they were acting for Dr Tucker in all relevant dealings with Ms Felgate and in responding on his behalf to her claim under the Act or in defending future litigation. Despite Ms Felgate’s contrary contentions, this was clearly so whether or not Dr Tucker’s solicitors were also acting on behalf of his insurer.

[46] Ms Nixon took a statement from Dr Tucker after he was served with the s 9A initial notice to enable her to provide him with legal advice about “any anticipated judicial proceeding”.58 Mr Crofts took instructions from Dr Tucker in preparation for the compulsory conference.59 It is true that, under the Act, extensive pre-court procedures had to be satisfied before Ms Felgate could start a court proceeding against Dr Tucker. It is also true that one means of achieving the main purpose of the Act is by the speedy resolution of claims for damages for personal injury by promoting settlement of claims at an early stage wherever possible and that the purpose of div 2 of pt 1 of ch 2 is to put parties in a position where there is enough information to assess the claim.60 But prudent lawyers acting for a respondent in Dr Tucker’s position would proceed on the basis that the claim could well result in significant litigation. I accept that both Ms Nixon and Mr Crofts took Dr Tucker’s instructions to meet the mandatory pre-litigation procedures under the Act and also in contemplation of potential future litigation should the claim not settle. But it does not follow that therefore the dominant purpose in taking those instructions was not in contemplation of future litigation. As the pre-court procedures mandated by the Act are an essential part of any future litigation, when Ms Nixon and Mr Crofts took Dr Tucker’s instructions resulting in the production of the document, their dominant purpose was in contemplation of future litigation. That was so even though the instructions also concerned the more immediate issue of meeting the mandatory pre-court procedures. As a result, those statements were privileged, unless the Act clearly stated otherwise.

[47] I note the wide terms of s 9A(8);61 s 20(3),62 s 22;63 and s 27(1)(a)(i).64 I also note the purpose of the Act and the stated means of achieving that purpose in s 4,65 and the purpose of div 2 of pt 1 of ch 2 in s 21.66 But there is nothing in the Act which specifically purports to exclude legal professional privilege between lawyers and clients, whether those clients are claimants or respondents under the Act. To construe the Act as removing the application of legal professional privilege to oral or documented communications between lawyers and clients would be extraordinary, even revolutionary. It is not a construction which I would adopt in the absence of the clearest of words.

[48] It follows that Dr Tucker’s controversial statements to his solicitors remained privileged under s 30(1)67 unless they were “reports” under s 30(2).68 The term “report” is not defined in the Act or in the Acts Interpretation Act 1954 (Qld). It has its ordinary meaning. Clients’ instructions to lawyers and consequential notes and statements are not ordinarily considered reports. I am far from persuaded that the legislature intended the word “reports” in s 30(2) to include notes or recordings of, or written statements given by clients (whether claimants or respondents) to their legal representatives for the purposes of progressing or answering a claim under the Act. The main purpose of the Act69 and the purpose of div 2 of pt 1 of ch 270 would not be assisted by abolishing legal professional privilege. Claimants and respondents would be reluctant to give frank instructions to their lawyers if those instructions must be disclosed to their opponents. On the contrary, the removal of the privilege which exists between client and lawyer would positively undermine those purposes. A lack of candour between client and lawyer would be likely to result in delays in ascertaining the real issues and the suppression of reliable relevant information.

[49] Further, the means of achieving the main purpose of the Act71 and the purpose of div 2 of pt 1 of ch 2 in s 2172 can be well met by the very significant disclosure required under s 9A(3);73 s 22;74 s 2775 and s 30(2),76 especially in light of the approach required following this Court’s decision in Watkins, without removing or diluting the privilege which attaches to communications between lawyer and client in contemplation of litigation. Importantly, such a construction of the provisions of the Act sits entirely comfortably with all relevant aspects of the Act and especially with the terms of s 30(1).77

[50] It follows that the primary judge was right in concluding that the Act did not require disclosure of Dr Tucker’s statements to his lawyers which resulted in the production of the document. Ms Felgate’s contentions as to the construction of the Act are not made out.

Waiver of privilege

[51] Ms Felgate’s alternative contention is that Dr Tucker waived that privilege when his lawyer, Mr Crofts, produced the document at the compulsory conference. The document contained information which, Ms Felgate submits, was not contained in the anaesthetic record, namely, “Diprivan mgs 160 then 60-90ml an hour relative to blood pressure and pulse.” This additional material must have come from Dr Tucker’s statement to Mr Crofts. Mr Crofts’ evidence that the document was compiled from records already disclosed is wrong. The document amounts to an imputed waiver of the privilege which attached to any of Dr Tucker’s statements to his solicitors on which the document was based: Attorney-General (NT) v Maurice78 and Goldberg v Ng.79

[52] In Goldberg, Deane, Dawson and Gaudron JJ noted:

“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 would 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 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.

In Attorney-General (NT) v Maurice, 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.”80 (Footnotes omitted)

After further discussing Attorney-General (NT) v Maurice their Honours concluded:

“… that the critical question in the present case is whether Mr Goldberg’s disclosure of the privileged documents to the Law Society gave rise to a situation where ordinary notions of fairness required that he be precluded from asserting that those documents were protected from production for inspection by the Ngs in the related equity proceedings between the Ngs and the Goldbergs.”81

[53] Ms Felgate has not demonstrated on the evidence that the document contained information in addition to that contained in the hospital theatre records. Those records are impossible for me to interpret in the absence of explanatory evidence from those familiar with such record taking. No such evidence was given. Mr Crofts’ evidence was that the document merely transcribed into a legible and succinct form a part of the anaesthetic record in the hospital records already 82

disclosed to Ms Felgate. His evidence was not contradicted by competing evidence. In those circumstances, there is no unfairness to Ms Felgate in allowing Dr Tucker to maintain his right to claim privilege in respect of his instructions to his lawyers in answering Ms Felgate’s claim under the Act. This contention also fails.

Were paragraphs 17, 18 and 19 of Mr Herd’s affidavit82 rightly excluded?

[54] It is not and has never been suggested that the parties’ compulsory conference under the Act was anything other than a without prejudice conference. The paragraphs from Mr Herd’s affidavit which were struck out by the judge were relevant to the determination of the issues before her Honour even though they referred to without prejudice communications. The judge determined the issues in dispute in the application. Once her Honour found that the subject matter of the impugned paragraphs was subject to legal professional privilege which had not been waived, the judge did not err in striking out the paragraphs. It follows that this contention also fails.

Conclusion

[55] As none of Ms Felgate’s contentions have been made out, the appeal must be dismissed with costs.

 

13 Set out at [11] of these reasons.

14 Relevantly set out at [24] and [25] of these reasons.  

15 See [12] of these reasons.

16 Set out at [7] of these reasons.

17 Set out at [8] of these reasons.

18 Set out at [9] of these reasons.

19 Set out at [10] of these reasons.

20 Set out at [11] of these reasons.

21 [2010] QSC 442.

22 [2001] 2 Qd R 626; [2000] QCA 507.  

23 [2008] 1 Qd R 564 at [18], [28].

24 Above [19], [29].

25 Above [60].

26 Above [67].

27 Above [68].

28 Above [69].

29 Above [70].  

30 Above [71].

31 Above [74]-[81].

32 Above [82].

33 Above at [83].

34 Above at [86].

35 Allen was the subject of an appeal to this Court heard on 17 May 2011 which has not yet been determined.  

36 Allen v State of Queensland [2010] QSC 442.

37 Above [16].

38 Above [19].

39 Above [36].

40 Above [37].

41 Watkins, [24].

42 Allen, [38]-[40].

43 Above [40].

44 [2001] 2 Qd R 626; [2000] QCA 507.

45 Workers’ Compensation and Rehabilitation Act 2003 (Qld) No 27.  

46 James v WorkCover Queensland [2001] 2 Qd R 626, [45].

47 Above [47].

48 Above [49].

49 See [12] of these reasons.

50 D Byrne and J D Heydon eds, Cross on Evidence, Australian edition, [25210].

51 (1999) 201 CLR 49; [1999] HCA 67.

52 Above [35] and [57].

53 (1976) 135 CLR 674; [1976] HCA 63.  

54 Above [61].

55 (1983) 153 CLR 52; [1983] HCA 39.

56 [1999] 2 Qd R 26; [1998] QCA 76.

57 [2008] 1 Qd R 564, [41].

58 See [24] of these reasons.

59 See [25] of these reasons.

60 See [4] of these reasons.

61 Set out at [7] of these reasons.

62 Set out at [8] of these reasons.

63 Set out at [9] of these reasons.

64 Set out at [10] of these reasons.

65 See [4] of these reasons.

66 Set out at [9] of these reasons.  

67 Set out at [11] of these reasons.

68 Above.

69 See [4] of these reasons.

70 See s 21 set out at [9] of these reasons.

71 See [4] of these reasons.

72 Set out at [9] of these reasons.

73 Set out at [7] of these reasons.

74 Set out at [9] of these reasons.

75 Set out at [10] of these reasons.

76 Set out at [11] of these reasons.

77 Set out at [11] of these reasons.  

78 (1986) 161 CLR 475; [1986] HCA 80.

79 (1995) 185 CLR 83; [1995] HCA 39.

80 Above, 95-96.

81 Above, 98.  

Brisbane Barrister – David Cormack

 

 

 

 

 

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