LPP protects:

1. Legal advice privilege, which is communications between a lawyer and client for the dominant purpose of legal advice; and 

2.  Litigation privilege, which is communications prepared for the dominant purpose of existing or anticipated litigation.

In Queensland, personal injury claims can be made under the Personal Injuries Proceedings Act 2002 (Qld) (PIPA). PIPA governs the procedures and processes that parties must follow during the pre-proceedings stage, including obligations to disclose certain documents before the commencement of litigation. 

Under PIPA, parties must disclose certain documents, but LPP remains protected. The key provisions under PIPA include:

1. section 27, requires respondents to disclose copies of documents in their possession that are directly relevant to the matter.  This includes documents related to the alleged incident giving rise to the personal injury, the claimant's medical condition, prospects of rehabilitation, and reports on the claimant's cognitive, functional, or vocational capacity. The respondent must also provide any information if asked by the claimant relating to the circumstances or reasons for the incident. 

2. section 30(1) states that information or documents are not required to be disclosed if that material is protected by LPP. 

3. section 30(2) requires disclosure of investigative reports, medical reports, and reports relevant to rehabilitation, even if they are protected by LPP. However, statements of opinion in these reports may be omitted.

In this article, we discuss decisions of the Court of Appeal and Supreme Court of Queensland to illustrate the interaction between PIPA and LPP, with specific regard to section 30(2) of PIPA. 

State of Queensland v Allen involved a claim arising from a medical procedure that allegedly caused severe brain damage to a child. Anticipating litigation, the hospital’s legal representatives sought statements from doctors involved in the procedure. When the claimant’s lawyers later requested disclosure, the hospital claimed privilege over the documents recording the statements.

The Queensland Court of Appeal was required to determine whether these documents constituted “investigative reports” or “medical reports” within the meaning of section 30(2) of PIPA.

The Court found that:

1. The solicitors’ file notes summarising conversations with doctors were not “reports” and therefore remained privileged.

2. A doctor’s written response to questions posed by the hospital’s solicitors was a “medical report” and had to be disclosed pursuant to section 30(2), despite being otherwise privileged.

3. This decision reinforces the principle that documents created for the dominant purpose of legal advice remain privileged unless they meet the specific definitions of an “investigative report” or “medical report” under section 30(2) of PIPA.

In Mahoney v Salt, the applicant alleged that she suffered injuries after falling on the respondents’ property. The respondents’ lawyers instructed a factual investigator to obtain witness statements and prepare a loss adjustor’s report.

When the applicant's lawyers sought disclosure of documents under PIPA, the respondents provided the main investigative report but withheld separately prepared witness statements, claiming those were privileged. The applicant challenged this position, arguing that the statements should also be disclosed.

The Supreme Court of Queensland ruled in favour of the respondents, finding that the witness statements were privileged and did not constitute “investigative reports” under section 30(2). The Court found that:

1. the witness statements were created for the dominant purpose of obtaining legal advice and were therefore protected by privilege.

2. although the statements were obtained during the factual investigation, they were separate and distinct from the main loss adjustor’s report.

3. the respondents’ lawyers had deliberately instructed the investigator to keep the witness statements separate from the main report to maintain privilege, and this approach was upheld by the court.

This decision again reinforces the Court's view on what constitutes an "investigation report". The outcome may have been different if the witness statements had been included within the main investigative report, demonstrating the need for specific instructions to experts if that material is intended to remain subject of LPP. 

While PIPA imposes broad pre-proceedings disclosure requirements, LPP remains protected and is not easily dismissed. However, decisions of Queensland courts highlight the importance of carefully structuring investigations and maintaining clear document separation to maintain privilege.

By understanding how courts apply the relevant sections under PIPA, parties can navigate PIPA’s disclosure regime while ensuring that privileged communications remain protected. Careful planning and adherence to best practices will help protect privilege, allowing parties to comply with PIPA without compromising their legal position.