Bell v Australian Meat Holdings Pty Ltd [2006] QSC 232

SUPREME COURT OF QUEENSLAND CITATION: Bell v Australian Meat Holdings Pty Ltd [2006] QSC 232 PARTIES: LESLEY ERNEST BELL (Plaintiff) And AUSTRALIA MEAT HOLDINGS PTY LTD ACN 124 567 890 (Defendant) FILE NO/S: S817 of 2003 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court DELIVERED ON: 23 May 2006 DELIVERED AT: Townsville HEARING DATE: 12 May 2006 JUDGE: Cullinane J ORDER: Application Dismissed CATCHWORDS: PRIVILEGE – DISCLOSURE – where the plaintiff/respondent has brought an action for personal injuries against the defendant/applicant – whether documents including correspondence between the plaintiff/respondent’s solicitors and the engineer, referred to in an affidavit of the respondent’s solicitor and in the engineer’s report are privileged. COUNSEL: Mr A. Entriken for the Defendant /Applicant Mr A.T. Moon for the Plaintiff / Respondent SOLICITORS: Abbott Tout for the Applicant Connolly Suthers for the Respondent [1] The defendant seeks an order that the plaintiff disclose certain documents. -- 1 of 7 -- 2 [2] The plaintiff has brought proceedings against the defendant claiming damages for personal injuries said to have been caused by the negligence of the defendant as the plaintiff's employer. [3] Although the application relates to a significant number of documents which appear in an affidavit of the respondent's solicitor, ultimately it became clear that the only relevant documents, for the purposes of this application, were two statements of the respondent and three e-mails passing between an engineer and the solicitors for the respondent. The evidence does not, in my view, support a finding that there are arguably any other relevant documents which are disclosable and have not been disclosed. [4] A claim for privilege has been made in relation to all of the documents in dispute. [5] A consulting engineer was engaged to prepare a report for the use of the respondent in the proceedings. [6] Two statements of the plaintiff were forwarded to the engineer for the purposes of preparing the report and in the course of preparing the report the engineer communicated by e-mail on three occasions with the solicitor for the respondent. [7] There is some confusion as to the dates of the relevant statements by the respondent but it seems to be common ground that the two statements are dated the 7th of November 2000 and the 12th of June 2003. [8] For the applicant it was contended that the documents are not privileged because they do not satisfy the dominant purpose test of Esso Australia Resources v Commissioner of Taxation (1983) 153 CLR 52. However there is, in my view, nothing in the material which would justify going behind the claim of privilege made by the solicitor for the respondent who swears that the documents were brought into existence for the purposes of litigation. [9] The primary issue which arose is whether there has been a waiver of any privilege which would otherwise attach to the documents concerned. [10] The report of the expert is required to be disclosed pursuant to Rule 212(2) of the Uniform Civil Procedure Rules. [11] The report was tendered as an exhibit before me. In the report the engineer states: "I have also received two signed statements dated November 22, 2000 and June 12, 2003 relating to Mr Bell's work history and the duties." I have already referred to what the correct dates should be. [12] The engineer went on to state that he had used, as a reference a sketch supplied by the plaintiff describing the amount and type of equipment. His report goes on to relate: "I base my report on the following which has been extracted from my conferences with Mr Bell, the statement by Mr Bell June 5, 2003 and the report issued by Dr Jenkins." The date should be 12th June 2003. -- 2 of 7 -- 3 [13] In his affidavit the solicitor for the respondent deposes in paragraphs 2 and 3 in the following terms: 2. In the course of acting for the Plaintiff I have prepared a number of documents, including:- (a) a statement by the Plaintiff dated 7 November 2000; (b) a statement by the Plaintiff dated 12 June 2003. I say both documents were prepared by me for the sole purpose of these proceedings. 3. In the course of these proceedings I engaged H L Burn & Associates, Consulting Engineers to provide a report for use in these proceedings by the Plaintiff. I did not provide a letter of instructions to H L Burn & Associates. There was a meeting between myself and Mr Harry Burn (Burn) of H L Burn & Associates in my office on 25 May 2005 at which time I provided Burn with copies of the statements of the Plaintiff referred to above. There was a further meeting with Burn and the Plaintiff in my office on 13 October 2005. The meetings were for the sole purpose of providing instructions to H L Burn & Associates to assist it providing a report for use in these proceedings by the Plaintiff. The copy statements were provided to Burn for the same reason. I received three emails from Burn on 11 June 2005, 12 June 205 and 13 June 2005 respectively. The emails sent by Burn contained requests for further information to be provided to assist in the provision of a report for use in these proceedings.” [14] The applicant placed particular reliance upon a judgment of this Court in Weidner v Cockerell and Ors (2001) QSC 046. [15] In that matter Jones J was concerned with a similar issue. An expert was engaged to prepare a report as to the conduct of an accountant who had been engaged by one of the parties and whose conduct was the subject of the claim. In preparing his report the expert used information which had been obtained from two statements made by the plaintiff. His Honour accepted that they were prepared for the purposes of litigation and prima facie were subject to a claim of legal professional privilege, the issue being whether there had been waiver. He dealt with this issue in the following way: “The relevant authorities were examined recently by Chesterman J in Henderson v Low & Ors 4 . In that case the plaintiff sought disclosure of a statement of the defendant, a medical practitioner, which statement had been given to an expert for an opinion on a defence against allegations of professional negligence. The expert report recounted extracts from the statement to support the opinion. His Honour held, in reliance upon a number of cases but particularly Attorney-General (NT) v Maurice & Ors 5 , that because the disclosure was to a third party “for -- 3 of 7 -- 4 a reason integrally connected to the subject matter of the litigation”, legal professional privilege had been waived.1 A more recent decision of the High Court Mann v Carnell 6 concerned the action of the Chief Minister of the ACT disclosing to a member of the Legislative Assembly on a confidential basis legal advice received by the government for the limited purpose of demonstrating that the settlement of litigation did not involve a waste of public funds. The High Court upheld a claim that in those limited circumstances legal professional privilege was not lost by disclosure to a third party on a confidential basis. Disclosure in these circumstances was not inconsistent with the maintenance of the confidentiality which the privilege was intended to protect. The circumstances attending the claim for legal professional privilege in this case are that the disclosure of the privileged material was being made to an expert for an opinion which is required by the rules to be disclosed. The disclosure to the third party is not for a limited or for actual purpose, but was integrally connected to the litigation. Disclosure in such circumstances in my view constitutes a waiver of legal professional privilege and the documents therefore should be disclosed.” [16] The authorities upon which his Honour relied are referred to in the above passages. In addition reference was made to a judgment of Ambrose J in Interchase Corp Ltd (in liquidation) v. Colliers Jardine (Q) Pty Ltd (1997), QSC 254, as well as to a decision of the Federal Court. [17] I was also referred by the applicant to the judgment of the Court of Appeal in James v WorkCover Queensland (2001), 2 QdR 626. [18] That case was concerned with certain provisions of the WorkCover Queensland Act 1996 which are not relevant to the present case and which imposed an obligation to disclose investigative reports, medical reports and reports relevant to the worker's rehabilitation, even though they would otherwise be protected by legal professional privilege. It was held that the obligations so imposed by the WorkCover legislation should be construed so that the words "investigative report" included a witness statement attached to and referred to in the body of the report. The case was not concerned with the principle contended for here. [19] The respondent, on the other hand, referred me to the judgment of the Court of Appeal in Grosvenor Hill and Waghorne v. Interchase Corporation Ltd and Richard Ellis (Queensland) Holdings Pty Ltd, CA No 9424 of 1996, 19 December 1997, unreported. In that case (the Interchase case) the members of the Court of Appeal took a more restrictive view of the relevant principle than that taken in the cases relied upon by the applicant. 4 (2000) QSC 417 5 (1986) 161 CLR 475. Other cases included Great Atlantic Insurance Co v Home Insurance Co (1981) 1 WLR 529; Wigmore on Evidence (1961) 8.2290. 6 (1999) 74 AJLR 378 -- 4 of 7 -- 5 [20] It was concerned with the Rules of Court prior to the UCPR but the relevant rule (Rule 35(5)(ii)) is in the same terms as rule 212(2) of the UCPR. Pincus JA rejected the argument that the provision of statements for the purposes of preparing an expert's report amounted to a waiver of any privilege which would other exist, as did Thomas J (as he then was). De Jersey J (as he then was) agreed with the reasons of both. [21] Pincus JA set out the issue at p.17: “It was contended for the appellant that the disclosure of the valuation under the rule removed any privilege in respect of the documents in question in categories A to E. To generalise the proposition, it is that 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.” [22] He disposed of it at p.21: “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 (N.T.) 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 C.J. at 483; see also per Mason and Brennan JJ at 487. 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.” [23] Thomas JA dealt with the matter at page 30 and later at page 34 in the following way: “The further submission was made on behalf of the appellant that Interchase has waived any right to object to production of the ancillary documents through its production of the Ellis report. I would reject this on several bases. In the first place it does not necessarily follow that waiver of privilege with respect to one document waives privilege to all other documents associated with it. In the second place, it has been said that waiver is to be implied when “by reason of some conduct on the privilege holder’s part, it becomes unfair to maintain the privilege” Attorney-General (NT) v Maurice (1986) 161CLR 475, 487 per Mason and Brennan JJ). One example where this would seem to be so would be when a party calls an expert to present his opinion which has been formulated in a report. Proper -- 5 of 7 -- 6 examination and cross-examination of the expert would be seriously compromised unless assumptions and facts on which the expert proceeded, and the process by which he or she arrived at an opinion, could be explored. Situations such as this, and the very different situation in Attorney-General v Maurice, may be contrasted with the present situation where Interchase produced the report only because it was bound to do so by the requirements of O.35 which in this respect has removed the privilege it desired to assert. In other words it produced the report under compulsion. It seems to me that it would be quite unfair to hold that by responding to this compulsory process Interchase has impliedly waived any rights it may have with respect to the other documents that are not the subject of the rule. I would also reject the appellant defendants’ submissions on this point for the reasons stated by Pincus JA.” “I would hold that in general, when an expert is engaged by a solicitor for the purpose of giving evidence in a case, documents generated by the expert and information recorded in one form or another by the expert in the course of forming an opinion are not a proper subject for a claim of legal professional privilege. Privilege may however be claimed in relation to communications between the expert and the solicitor (both ways) when such communication is made for the purpose of confidential use in the litigation. Beyond this there is no sufficient reasons why any material relevant to the formation of the expert’s opinion should be subject to a claim of legal professional privilege.” [24] This approach has been followed in Greenhill Nominees Pty Ltd and Beechmont Pty Ltd v Aircraft Technicians of Australia Pty Ltd and Anor (2001) QSC 007 by Wilson J and by Helman J and Marney v Noosa District Community Hospital Limited and Ors (2002) QSC 116. In the former case Wilson J said at paragraphs 19 and 20. “The defendant seeks disclosure and production for inspection of a letter from the solicitors for the first plaintiff to its aviation surveyors and adjusters and any other documents provided by the first plaintiff to its experts by way of instructions for the giving of certain reports. On the hearing of the application it was common ground that under Order 35 of the former Supreme Court Rules, instructions given by lawyers to an expert for the purpose of preparing an expert report were protected by legal professional privilege: Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 QdR 141 at 156 per Pincus JA. The position has not been changed by the Uniform Civil Procedure Rules.” [25] I note that whilst Jones J was referred to another case at first instance involving Interchase, he was not referred to the judgment of the Court of Appeal. [26] In so far as the applicant contends for a principle that the provision of the statements for the purposes of a report or communication between the -- 6 of 7 -- 7 expert engaged to prepare the report and the solicitor constitutes a waiver of any privilege which might otherwise attach, I do not think the authorities support such a broad proposition. Indeed it seems to me that the weight of authority, and in particular authority binding on me, is against it. [27] I take the principle to be as stated in Attorney-General for the Northern Territory v. Maurice (1986), 161 CLR 475, that no waiver should be attributed to a party in relation to material which would otherwise be privileged which is referred to in other material which is disclosable or not the subject of a claim for privilege "unless it would be unfair or misleading to allow a party to use material and yet assert that material associated with it is privileged from production." This is the way also in which Thomas J approached the matter, as will be apparent from the passage set out above. [28] The applicant here did not advance a claim that there were circumstances in this case which would make it unfair or misleading to allow the claim for privilege to stand in this case.. On the face of things it is difficult to see on what basis, in any case, such a claim could be made. The factual assumptions relied upon in the engineer's report appear on the face of the report. [29] Rather, as I have said, the applicant relied upon the general proposition that the provision of the statements for the purposes of the report and the fact that the e-mails were communicated in the course of the preparation of the report itself gave rise to a waiver of privilege. [30] For reasons which I have already referred to, I do not think that the weight of authority supports this broad proposition. [31] In a supplementary outline the Applicant mounted an argument that the Interchase case should not be followed given the introduction of the UCPR since that time and the underlying principles which inform those Rules. On the other hand the inclusion of Rule 212(2) in the same terms as O.35 R.2 after the Court of Appeal’s judgment in the Interchase case cannot be ignored. The judgment binds me and there is, in my view no basis to distinguish it. [32] The application will be dismissed. [33] I will give the parties leave to make written submissions within 7 days on the issues of costs. -- 7 of 7 --