Australia: "Not enough Salt?" - Witness statements the subject of legal Professional Privilege in PIPA claims

The decision concerns an application for orders (1) under section 35(1) of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) for disclosure of witness statements by the respondents, which were obtained on behalf of the respondents' solicitors by loss adjusters and (2) setting a date for a compulsory conference. The application for disclosure was dismissed while a compulsory conference was ordered to be held by 30 April 2012.

Facts

On 28 December 2009, the applicant, Ms Mahoney, sustained personal injuries when she stepped from a patio area to an outdoor area at premises owned by the respondents, Mr and Ms Salt. According to the applicant, a height difference between the two areas of approximately 158mm caused her to fall and sustain injury.

The applicant issued a Part 1 Notice of Claim to the respondents on 13 December 2010. The respondents' insurers retained solicitors to act on the respondents' behalf. On 12 January 2011, the respondents' solicitors engaged loss adjusters to undertake factual investigations. The written instructions to loss adjusters included directives that, so as to maintain legal professional privilege, all discussions with witnesses were to be reduced to written statement and that the statements were not to be attached to loss adjusters' written report but, instead, were to be forwarded to the respondents' solicitors under a 'with compliments' slip.

Loss adjusters produced a written report dated 29 April 2011. Loss adjusters also forwarded an unsigned statement by one of the respondents to the respondents' solicitors on 5 May 2011. Loss adjusters' written report was disclosed to the applicant's solicitors on 3 August 2011. The written report included reference to the evidence of one of the respondents, specifically about a temporary ramp between the patio area and the outdoor area. The applicant requested disclosure of witness statements by the respondents, which the respondents' solicitors refused.

The respondents' PIPA section 20 notification was delivered on 2 December 2011. Loss adjusters forwarded signed statements by both respondents dated 14 December 2011 to the respondents' solicitors on 20 December 2011. The respondents' solicitors refused all requests by the applicant for disclosure of witness statements by the respondents.

The applicant applied for orders for disclosure of the respondents' witness statements, submitting that:

• PIPA restricts the scope of legal professional privilege such that, pursuant to section 27 of the Act, a respondent is required to give a claimant copies of documents in a respondent's possession directly relevant to matters in issue, including reports and other documents about the incident alleged to have given rise to the claim
• the witness statements constitute 'investigative reports' as contemplated by section 30(2) of PIPA such that, notwithstanding any claim for legal professional privilege, they must be disclosed, and
• the witness statements were required to be disclosed under section 20(3) of PIPA.

In reply, the respondents submitted to the effect that the witness statements were brought into existence for the dominant purpose of providing the respondents' insurer with legal advice such that they are validly the subject of legal professional privilege. It was further submitted that PIPA retains a party's entitlement to not disclose documents the subject of legal professional privilege of a type that include the witness statements.

Decision

The Court dismissed the application in relation to disclosure on the bases that:

• the statements were not 'investigative reports' or, more generally, 'reports', and therefore were not required to be disclosed under sections 27 or 30(2) of PIPA
• in relation to section 20(3) of PIPA: the witness statements were not, distinguishing Watkins v State of Queensland [2008] 1 Qd R 564, in any way to be categorised as medical reports (which was one of the type of documents considered in Watkins); and there was no evidence that the witness statement were obtained for the purpose of complying with section 20 of PIPA. The Court also noted in any event that the signed witness statements were obtained after delivery of the respondents' PIPA section 20 notification, and
• the reference to one of the respondents evidence in loss adjusters' report did not, in the present case, amount to waiver of privilege.

The Court noted to the effect that it was open to the respondents' solicitors to seek to maintain privilege in witness statements to be obtained by loss adjusters such that the solicitors' directives to loss adjusters as to the manner in which witness evidence was to be obtained did not constitute an attempt to circumvent the objects of PIPA.

The Court ordered that a compulsory conference be convened by 30 April 2012 so as to promptly progress the claim.

Implications

The decision affirms that legal professional privilege applies with respect to witness statements obtained for the dominant purpose of anticipated litigation. The Court's finding that the statements did not constitute 'reports' or 'investigative reports' is consistent with the decisions of State of Queensland v Allen [2011] QCA 311.

The decision, however, provides little comfort for a PIPA respondent in circumstances where it has been added as a contributor to any parallel common law claim for damages being pursued by the claimant under the Workers' Compensation and Rehabilitation Act 2003 (Qld) (WCRA). In those circumstances, pursuant to section 279(1) of the WCRA, witness statements by WCRA contributors/PIPA respondents are likely required to be disclosed.

Although obiter, the reference in the decision to the respondents' solicitors receipt of the signed statements after issuing the PIPA section 20 notification suggests that, should such statements be received prior to issuing the notification (and assuming such documents may potentially be captured by section 20(3), for instance as the 'all other material' referred to in the sub-section), it may yet be argued before the courts that such documents need to be disclosed if received prior to issuing the section 20 notification. Regardless, at present, the decision may be relied upon to refuse disclosure of lay witness statements. Respondents ought take care to at all times avoid any action that may potentially amount to waiver of legal professional privilege. Respondents ought also expect more extensive utilisation by claimants of requests for information, to be verified by statutory declaration, under section 27 of PIPA.

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