Australia: Solicitor's file note not an 'investigative report'

Last Updated: 18 March 2012
Article by Scott Cowell

State of Queensland v Allen [2011] QCA 311


The Queensland Court of Appeal has recently considered the meaning of the terms 'investigative reports' and 'medical reports', as they are used in s30 of the Personal Injuries Proceedings Act 2002 ('PIPA'). The decision may have a significant bearing upon how respondents and their insurers approach PIPA disclosure.

PIPA and privilege

Section 30 of PIPA provides that:

  • A party is not obliged to disclose information or documentary material if same is protected by legal professional privilege
  • However, 'investigative reports' and 'medical reports' must be disclosed,even though otherwise protected by legal professional privilege, but these documents may be disclosed with the omission of passages onsisting of statements of opinion.


Ethan Allen was diagnosed with suffering severe brain damage following a procedure performed at the Prince Charles Hospital ('the hospital') in Brisbane, when he was sixteen months old.

The hospital, correctly anticipating litigation, sought advice from its solicitors. The solicitors recommended that statements be obtained from the doctors involved in the procedure. It was proposed that the doctors would be provided with a list of questions, and asked to prepare a written report ('the statements') addressing these questions. The doctors were asked to mark the statements 'privileged and confidential'. The hospital's solicitors also interviewed a number of doctors, and file notes ('the file notes') were taken, recording these interviews.

First instance

The claimant sought disclosure of the statements and the file notes. Applegarth J found that:

  • The statements and files notes would normally be protected by legal professional privilege. This finding was not challenged on appeal
  • Section 9A of PIPA required, peculiar to medical negligence claims:
  • The hospital to make (before a noticeof claim was issued) disclosure of
  • documents relating to the medical services provided
  • The claimant to produce medical evidence establishing a prima facie case against the hospital, at the time when the notice of claim was issued
  • When sections 9A and 30 of PIPA were read in conjunction, the necessary conclusion to be reached was that the term 'investigative reports' must be given a wide interpretation so as to provide a claimant with the essential facts necessary to allow the claimant to fulfil his statutory requirements, and to allow the claimant's specialist to produce his / her report
  • The term 'investigative reports' should mean a report that is made as a result of an investigation into a medical incident. On that basis, the statements and files notes could be considered to be 'investigative reports', and thus were required to be disclosed.

Matters in issue on appeal

On appeal, the only documents that remained in dispute were two file notes and one statement. There were two questions to be considered:

  • Should the statement and the file notes be considered to be 'investigative reports'?
  • If not, could the statement and / or the file notes be considered to be 'medical reports'?

'Investigative report'?

The Court of Appeal unanimously found that the statement and the file notes were not 'investigative reports'. In that regard, it was noted that:

  • The file notes could not be considered to be 'reports' as that term is ordinarily used
  • The term 'investigative reports' had to be given its ordinary meaning – i.e. a document produced as a result of an overall investigative process
  • Neither the file notes or the statement fitted within this definition
  • If the claimant's submissions were accepted, a wide spread abrogation of privilege could result in PIPA claims. This was not the intention of s30 of PIPA.

'Medical report'?

By a two to one majority, the Court of Appeal held that the statement was a 'medical report', and consequently was required to be disclosed, because:

  • The document was 'medical' in nature
  • The document resembled thousands of medical reports prepared for the courts each year
  • The doctor who prepared the statement was not the subject of possible litigation. If the doctor was the subject of litigation, and he gave a statement to his solicitor, privilege would not be lost.


The 'investigative reports' aspect of the Court of Appeal's decision have been met with a resounding sigh of relief by (at least the defendant) side of the Queensland legal fraternity. Any contrary finding would have resulted in a significant erosion of privilege in personal injuries claims in Queensland, which was not the intention of PIPA.

However, the decision does (again) highlight, particularly in medical negligence claims but also in personal injuries claims generally, that decisions made by respondents and their insurers, at a early stage, can have a significant bearing upon disclosure at a later date. Respondents, insurers and their legal practitioners must, upon notice of a claim, be mindful of their potential disclosure obligations. They must frame their enquiries so that information and documentation, which is rightfully privileged and not required to be disclosed, is compiled (or perhaps not compiled) in a manner that avoids inadvertent disclosure.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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