Mahoney v Salt [2012] QSC 43

The issue of disclosure of statements by the respondents alleged to have arisen out of an investigative report came under scrutiny. The applicant sought disclosure under s 35(1) of the Personal Injuries Proceedings Act 2002 (“the Act”). The respondent resisted on the basis of legal professional privilege under section 30 of the Act.

Background

 The respondents’ solicitor provided instructions to the loss adjuster with legal professional privilege in mind:

 “To retain the benefit of legal professional privilege, we ask that you provide reports to us in the following way:

1.            All discussions with witnesses are to be reduced to a written statement, even if the witness has not agreed to provide one.

2.            Witness statements are to be forwarded to us separately from your investigation report, with a ‘with compliments’ slip which simply notes our reference, not with a covering letter.

3.            Do not attach (by staples, paperclips or otherwise) the witness statements to your investigation report or to your statement of opinion, and do not refer to them in the body of the report.

4.            Any disclosable document – that is, those which have not been brought into existence for the dominant purpose of litigation – may be attached to your investigation report. This may include, for instance, incident reports, leases, agreements, contracts, specifications, building designs, plans, etc. Search results may be attached to your report.

If you are in any doubt whether a particular document is disclosable, please contact us before completing your report. Otherwise, we suggest you simply attach any documents obtained from their parties to their statements.”

Boddice J found that such instructions were not a ‘ruse’, but:

 [26] Having considered all of the circumstances and, in particular, the contents of the loss adjustors’ report, I am satisfied there has been no waiver of privilege in the present case. It would not be unfair or misleading to allow the respondents to maintain privilege in respect of the draft statement and the signed statements notwithstanding reference to the female respondent’s version of events in the loss adjustors’ report.

 [27] Finally, the applicant contends the respondents ought not to be able to claim privilege in respect of the draft statement and the statements having regard to the instructions given to the loss adjustors. The applicant submits those instructions required the loss adjustors to deliberately engage in a course of action designed to prevent the applicant from having access to the witness statements, a procedure contrary to the objects of the Act.

 [28] The instructions provided by the solicitors highlighted the importance of retaining legal professional privilege. The instructions did not involve a ruse designed to shroud with privilege a document not properly the subject of legal professional privilege, which is impermissible.[18] Witness statements are a well recognised category of documents properly the subject of legal professional privilege.

[29] Further, in seeking to ensure legal professional privilege is maintained, the instructions did not adopt a procedure contrary to the objects of the Act. Whilst the main object of the Act is to encourage disclosure between the parties, the Act expressly retains legal professional privilege, except in specific circumstances.

In considering whether legal professional privilege attached, his Honour examined the basis of legal privilege and whether the statements were ‘reports’ and found they were covered and exempted:

 [13] In accordance with the usual practise, the respondents handed up, for the Court’s examination, copies of the documents in dispute. The applicant accepted this was an appropriate procedure. It is consistent with the Court’s general approach not to be hesitant to examine documents over which a claim of privilege is made.[5] A perusal of these documents confirms that they are in the nature of witness statements prepared at the request of the respondents’ solicitors.

 

 [15] Legislative provisions are not to be construed as abrogating important common law rights, such as legal professional privilege, in the absence of clear words or a necessary implication.[6] Insofar as the Act is concerned, Parliament has expressed its intention “with irresistible clearness” in s 30. Privileged communications which are “investigative reports”, “medical reports”, and “reports relevant to the claimant’s rehabilitation” must be disclosed, subject only to the omission of statements of opinion.[7]

 [16] The three statements the subject of this application were prepared by loss adjustors on the express instructions of the respondents’ solicitors, who had been retained to advise in relation to the applicant’s claim. Whilst the statements were prepared during the loss adjustors’ investigation of the incident, the individual statements are separate documents in the form of witness statements.

[17] The respondents contend the statements are privileged as they were brought into existence for the dominant purpose of providing the respondents’ insurer with legal advice.[8] Legal professional privilege will extend to a document which is produced, or brought into existence, with the dominant purpose of using it or its contents in order to obtain legal advice or to aid in the conduct of litigation.[9] To be protected by legal professional privilege, the document must represent a confidential communication brought into existence for the requisite dominant purpose.[10]

[18] The privilege extends to communications with third parties at the request of a party’s solicitor if made for the dominant purpose of enabling the solicitor to furnish legal advice.[11] Such communications can include communications prepared by third parties, where the dominant purpose of the communication is for the purposes of obtaining legal advice.[12]

[19] The maintenance of advice privilege under the Act was expressly recognised in Watkins v State of Queensland.[13]

“ [71] 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 PIPA.

[83] … 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 PIPA …”

[20] The applicant submits the statements in question are not protected by legal professional privilege as they are properly to be characterised as investigative reports. The term “investigative reports” connotes a report in respect of an investigation. Ordinarily, a client’s instructions to lawyers and consequential notes and statements are not “reports”.[14] Similarly, a statement of a witness of an incident or a solicitor’s file note which records that person’s recollection of the circumstances of the incident and the person’s opinion about the incident for use in anticipated litigation is not an “investigative report”.[15]

[21] Whilst the loss adjustors were undoubtedly undertaking an “investigation” of the incident, and a report from those loss adjustors would properly fall within the term “investigative report”, the particular statements do not have that quality. The statements are not in the nature of a systematic examination or enquiry.[16] They contain the respondents’ account of events relevant to the occasion in which the applicant fell. The statements do not constitute “reports”, and certainly do not satisfy the ordinary meaning of “investigative reports”.

[22] Alternatively, the applicant contended the documents were required to be disclosed pursuant to s 20 of the Act. In support of that contention, the applicant relies on Watkins v State of Queensland. In that case, the Court of Appeal held that s 30(2) of the Act was not intended to operate to preserve privilege in any of the documents described in s 20(3) of the Act.[17] However, the circumstances of the present case are readily distinguishable from Watkins.

[23] Watkins concerned disclosure of a medical report obtained for the purposes of the pre-litigation procedures contemplated by the Act and, in particular, s 20. Section 20(3) of the Act expressly requires delivery of copies of medical reports. The statements the subject of the present disclosure application cannot in any way be characterised as medical reports. Further, there is no evidence the statements were obtained for the purpose of complying with s 20 of the Act. The respondents’ s 20 response was provided on 2 December 2011. The signed statements were not obtained until after that date. The respondents were not required to disclose the statements by s 20 of the Act.

[24] The applicant further contended the respondents had not properly established privilege. Having considered the material, I am satisfied the respondents have properly established the existence of legal professional privilege in the draft statement and the signed statements. Each constituted a confidential communication brought into existence for the dominant purpose of obtaining legal advice.

[25] The applicant also contends the respondents have waived legal professional privilege by referring to the contents of the draft statement and statements in the loss adjustors’ reports which have been the subject of disclosure. In support of this submission, the applicant relies on Watkins v State of Queensland where Keane JA (as the Chief Justice then was) said at [57]:

“…

In Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 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 C.J. saw the decided cases as establishing that:

‘… 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.’ ”

 

Brisbane Barrister – David Cormack

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