Vasey v Gladstone Area Group Apprentices Limited
[2023] QIRC 165
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- Unreported Judgment
- Vasey v Gladstone Area Group Apprentices Limited[2023] QIRC 165
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Vasey v Gladstone Area Group Apprentices Limited[2023] QIRC 165
Vasey v Gladstone Area Group Apprentices Limited[2023] QIRC 165
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Vasey v Gladstone Area Group Apprentices Limited [2023] QIRC 165 | |
PARTIES: | Vasey, Glenda (Applicant) v Gladstone Area Group Apprentices Ltd (Respondent) | |
CASE NOS: | AD/2022/20 | |
PROCEEDING: | Application in existing proceedings | |
DELIVERED ON: | 5 June 2023 | |
HEARING DATE: | 17 April 2023 | |
MEMBER: | Pidgeon IC | |
HEARD AT: | Brisbane | |
ORDERS: |
| |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION OF DOCUMENTS – GROUNDS FOR RESISTING PRODUCTION – CLIENT LEGAL PRIVILEGE – application in existing proceedings seeking order for production of documents particularised in notice of non-party disclosure – consideration of the Industrial Relations (Tribunals) Rules 2011 (Qld) – where the respondent resists disclosure of documents on the grounds of legal professional privilege – where the applicant contends the documents are disclosable – whether the claim of legal professional privilege should be upheld | |
LEGISLATION: | Industrial Relations (Tribunals) Rules 2011 (Qld) rr 64E, 64G, 64H, 64I | |
CASES: | Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 153 ALR 393 Australian Mud Co Pty Ltd v Coretell Pty Ltd (No 2) [2014] FCA 723 Bartolo v Doutta Galla Aged Services [2014] FCCA 1517 Bowker v DP World Melbourne Ltd [2015] FWC 7887 Brown v BlueScope Steel Ltd [2005] AIRC 955 Carnell v Mann (1998) 159 ALR 647 Commissioner of Taxation v PricewaterhouseCoopers [2002] FCA 278 CUB Australia Holding Pty Ltd v Commissioner of Taxation [2021] FCA 43 DBCT Management Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd and Geosea Australia Pty Ltd Joint Venture [2021] FCA 512 Deputy Commissioner of Taxation v Miller [2021] WADC 29 Dixon v Watpac Ltd [2022] FedCFamC2G 778 Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 3) [2018] FCA 1540 Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266 Harper v Gold Coast Pistol Club Limited [2023] FedCFamC2G 206 Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217 Sparnon v Apand Pty Ltd (1996) 138 ALR 735 Stephen v Seahill Enterprises Pty Ltd v Fitzgibbons [2021] FWCFB 2623 Talbot v Boyd Legal (A Firm) & Ors [2020] QSC 185 | |
APPEARANCES: | Mr C. Mossman, Wotton Kearney for the Applicant Mr P. Zielinski of counsel for the Respondent | |
Reasons for Decision
Introduction
- [1]This decision concerns an application in existing proceedings filed on behalf of Ms Glenda Vasey (‘the Applicant’), on 15 March 2023. Ms Vasey, who is the Complainant in the substantive proceedings, seeks an order that Workplace Law Group comply with the Form 29 - Notice of Non-Party Disclosure (‘the Notice’) filed and served on 13 February 2023.
- [2]Ms Sarah Lock of Workplace Law Group is instructed by the Respondent, Gladstone Area Group Apprentices Ltd (‘ATQLD’), in the substantive proceedings.
Documents sought to be produced
- [3]In a schedule to the Notice, the Applicant seeks the following documents to be produced:
All documents, records, notes and correspondence (including correspondence between Workplace Law Group and Gladstone Area Apprentices Limited t/as Apprentices and Trainees Queensland and notes of any attendances or discussions between them) held in Workplace Law Group’s possession, custody and/or control:
- Relating to any matter pertaining to the performance and conduct of the Applicant;
- Relating to any matter referred to in the Respondent’s letter to the Applicant of 10 May 2021;
- Received or sent to John Hynes between the dates of 1 January 2021 and 31 July 2021;
- Relating to any matter in respect to the proposed retirement of the Applicant;
- Relating to the Applicant’s response of 21 May 2021 to the Respondent.
*Documents and records produced may be copies.
What happened at the hearing
- [4]A hearing regarding these matters took place on Monday, 17 April 2023.
- [5]In the parties’ outlines of argument and at the beginning of the hearing, there was some controversy surrounding whether the Respondent’s objection to the Notice, and the Applicant’s application for orders enforcing the Notice, had each been made out of time, or made at all.[1]
- [6]At the commencement of the hearing, I was informed that the Respondent intended to make an application for leave to extend the timeframe in which to file an objection under rule 64E(1) of the Industrial Relations (Tribunals) Rules 2011 (Qld) (‘the Rules’) and that the order be made nunc pro tunc or to apply retrospectively.
- [7]The Applicant served the Notice on Workplace Law Group on 13 February 2023. The Respondent says that Workplace Law Group’s objection to production of the documents particularised in the Notice was made clear to the Applicant on 27 February 2023. Rule 64E of the Rules provides that a non-party may object to the production of some or all of the documents in a Notice for Non-Party Production within seven days after its service. Hence, the objection was required to be served by 20 February 2023. The Applicant says that Workplace Law Group’s objection was delivered seven days beyond the prescribed time limit.
- [8]The Applicant’s application in existing proceedings to enforce the Notice was filed on 13 March 2023. The Respondent argued this was out of time, and per 64G of the Rules, the application should have been filed on 7 March 2023. In reply, the Applicant submitted that it relied on rule 64H. According to the Applicant, all that is required for a party to be granted an order under rule 64H(2), is to show that a non-party has not complied with rule 64H(1). On this reading, the application was not made out of time and the Queensland Industrial Relations Commission (‘the QIRC’) could make the orders sought.
- [9]Following a lengthy discussion at the hearing, it was agreed between the parties that regardless of which party was granted leave to have their application heard, the practical outcome was that I would be required to consider the matter of legal professional privilege and whether to order production of the documents or uphold an objection to production.[2] On the basis of an agreement between the parties that we could proceed with the arguments about legal professional privilege, I determined not to the Respondent’s application to extend time to file an objection and instead to consider the Applicant’s application for production of the documents specified in the Notice filed and served on 13 February 2023, which formed the basis of the submissions filed in preparation for the hearing. A decision regarding disclosure of the documents is required prior to the substantive matter being set down for hearing.
- [10]At the preliminary stage of the interlocutory hearing, I rejected the Applicant’s argument that I should order disclosure of the documents sought, simply on the basis that the Appellant did not file an objection in time.
Legal professional privilege
- [11]ATQLD has objected to providing the documents specified in the Notice on the basis of legal professional privilege.
- [12]The Applicant argues that the documents particularised in the Schedule to the Notice are not privileged.
- [13]The Applicant says that the party claiming that documents are subject to legal professional privilege bears the onus of establishing its claim. The Applicant refers me to DBCT Management Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd and Geosea Australia Pty Ltd Joint Venture,[3] where Abraham J stated:
81 The party claiming privilege bears the onus of proving the facts necessary to establish the relevant privilege, including that the communications or documents in question were made or created for the required dominant purpose. The existence of privilege will not “necessarily or conclusively [be] established by resort to any verbal formula or ritual”: Grant v Downs at 689. Nor will it necessarily be sufficient for a party to merely assert a claim for privilege or rely on an affidavit which asserts the purpose for which a document was brought into existence followed by a statement of the category of legal professional privilege to which the document is said to belong: NCA v S at 211; Kennedy v Wallace at [13]-[17]. The evidence should be focused and specific: Barnes v Commissioner of Taxation [2007] FCAFC 88; 242 ALR 601 at [18]. A “bare or skeletal” claim, unsupported by evidence which enables the court to consider and make an informed decision about the correctness of the claim or whether it is supportable, will not suffice: NCA v S at 212. The claimant must, by direct admissible evidence, set out the facts from which the court can consider whether the assertion or assertions concerning the purpose of the communication in respect of which privilege is claimed is properly made: Hancock v Rinehart (Privilege) [2016] NSWSC 112 at [27] (Hancock). The best evidence will be that given by the person whose purpose is in question: Hancock at [32].[4]
- [14]The Respondent accepts that ATQLD bears the legal onus of making out its privilege claim.
Dominant purpose
Applicant’s Submissions
- [15]The Applicant points to the principles set out in Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia[5] and says that legal professional privilege protects a person from being compelled to produce documents or give information which would reveal communications between a client and his or her lawyer, made for the dominant purpose of obtaining or providing legal advice, or the provision of legal services, including representation in pending or anticipated legal proceedings. The Respondent says that the determination of dominant purpose is a matter for the Commission and must be determined objectively.
- [16]The Applicant says that the documents particularised in the Schedule of the Notice are not, and could not, be subject to legal professional privilege as the dominant purpose for their creation was for the purpose of performance management of Ms Vasey and not for the purposes of ATQLD obtaining legal advice in contemplation of these legal proceedings before the Commission.
- [17]Email correspondence sent on 27 February 2023 by Workplace Law Group to Ms Vasey’s legal representative stated, ‘In any event part and parcel of the assistance that was provided to ATQLD [Gladstone] and which is referred to in paragraph 1 of the 10 May 2021 letter, is the provision of legal advice’. The Applicant says that this is not what is stated in paragraph one of the show cause letter from Workplace Law Group to Ms Vasey dated 10 May 2021 which relevantly states:
We confirm that we have been retained to assist Apprentices and Trainees Queensland (ATQLD) [Gladstone] in effectively managing the current situation pertaining to your performance and conduct issues which are outlined further in this correspondence.
- [18]The Applicant says that the paragraph quoted above contains no reference to Workplace Law Group providing ATQLD with legal advice.
- [19]The Applicant says that ‘purpose’ is that which, at the time, led to the making of the communication or the preparation of the document.[6] The Applicant says that the purpose at the relevant time is that which was stated in the show cause letter dated 10 May 2021 and that was to assist ATQLD to effectively manage Ms Vasey’s performance and conduct issues. The Applicant says that this was the dominant purpose at that time for the retainer of Workplace Law Group by ATQLD and therefore the Notice seeks production of documents created for that purpose.
- [20]The Applicant says that the objection to the production of the documents particularised in the Schedule to the Notice and its claim for privilege over those documents, relies on the assertion that Workplace Law Group was providing legal advice to ATQLD. The Respondent say that this fails to satisfy the dominant purpose test as set out in Federal Commissioner of Taxation v Spotless Services Ltd (‘Spotless’):[7]
In its ordinary meaning, dominant indicates that purpose which was the ruling, prevailing or most influential purpose.
- [21]The Applicant says that the dominant purpose test has been suggested as involving asking the questions, would the communication have been made or the document prepared, even if the suggested dominant purpose had not existed? If the answer is ‘yes’, the test is not satisfied. If the answer is ‘no’, the test will be satisfied.[8]
- [22]The Applicant says that the show cause notice makes it ‘explicitly clear’ that the dominant purpose of the creation of the documents sought to be produced was to assist ATQLD to effectively manage Ms Vasey’s performance and conduct issues.
- [23]With regard to the stated dominant purpose being performance management, the Applicant refers to the statement of the Full Bench of the Fair Work Commission in Stephen v Seahill Enterprises Pty Ltd v Fitzgibbons (‘Stephen v Seahill’):[9]
[71] … As the AIRC Full Bench said in Brown v BlueScope Steel Ltd,[10] “[t]here is a very real difference between an independent inquiry and the provision of legal advice to a client”.[11] A procedurally fair workplace investigation initiated by an employer the outcome of which is intended to be made known to relevant employees in the workplace and which is to lead, where necessary, to corrective or disciplinary action is not one which ordinarily has a purpose confidential to the employer… Bowker[12] is not to be read as standing for the proposition that a workplace investigation which does not have the provision of legal advice and/or the provision of legal services in connection with litigation as its dominant purpose may nonetheless be subject to legal professional privilege merely on the basis that the investigation is undertaken by a lawyer.
- [24]The Applicant points out that any such purported legal advice, as at the time the show cause letter was forwarded by Workplace Law Group to Ms Vasey, was not in relation to any pending litigation given that Ms Vasey’s complaint to the Queensland Human Rights Commission (QHRC) was not submitted until about 2 July 2021 and the current proceeding was not referred to the QIRC by the QHRC until about 3 March 2022.
- [25]The Applicant refers to Re King,[13] where the Fair Work Commission held that an investigation report prepared by an independent law firm was not privileged. The Fair Work Commission was satisfied the report was not privileged having regard to:
- the employees involved in the investigation knew about the complaints;
- the employees involved knew there would be an investigation;
- all the employees involved in the investigation were informed of its outcome and that there had been a breach of the Code of Conduct found by the investigators;
- the employer did not characterise the investigation report as for the purpose of legal advice; and
- at the time of the investigation report, the stop bullying application was not before the FWC so legal services were not required for a proceeding.
- [26]The Applicant also raises the issue of Ms Lock’s affidavit referring to a conversation she had with Mr John Hynes, who was the Operations Manager at the time relevant to the complaint. This conversation formed the basis of a document prepared by Ms Lock setting out Mr Hyne’s evidence and which Mr Hynes was never able to sign due to a period of medical isolation followed by his death. The Applicant says that when one listens to the audio file on the USB provided by Ms Lock containing a recording of the conversation and then compares that conversation to the statement purporting to be Mr Hyne’s evidence in this matter, there are a number of inclusions in that statement which are not discussed or referenced in the recorded conversation.
- [27]The Applicant says that the Respondent has ‘merely provided a blanket objection’ to the production of documents particularised in the Schedule to the Notice. The Applicant says that the Respondent has not identified each document it objects to producing and a reason for its objection to production. The Applicant says that blanket claims of objection are impermissible.[14]
- [28]The Applicant submits that the Respondent has not discharged its onus of establishing its claim that the documents stated in the Schedule to the Notice are subject to legal professional privilege.
Respondent’s submissions
- [29]The Respondent says that the wording contained in the show cause letter is insufficient to support the Applicant’s claim that the dominant purpose of the documents was for performance management and that this is the basis for the Respondent’s resistance to disclosing the documents. Rather, the Respondent points to Ms Lock’s reference to being ‘retained’ and says that this is a term most commonly used to describe the relationship of a solicitor-client.
- [30]The Respondent says that it is a normal part of the practice of any labour lawyer to provide their clients with advice as to the substantive and procedural issues relating to performance and misconduct processes and that Ms Lock’s show cause letter to Ms Vasey ‘stated nothing more or less’.
- [31]The Respondent points to the evidence of Ms Wilmot which it says makes clear that the dominant purpose of Ms Lock’s engagement was to provide the Respondent with legal advice. The Respondent says that Ms Lock’s advice in respect of Ms Vasey’s performance or misconduct process cannot be artificially separated or distinguished from the process itself. The Respondent says that the show cause notice was merely a product of Ms Lock’s legal advice to the Respondent.
- [32]The Respondent says that Ms Vasey’s response to the show cause letter raised allegations that she was being bullied, discriminated against and victimised and that from this time, legal proceedings were reasonably anticipated and that the fact that Ms Vasey did not file proceedings until 2 July 2021 is not to the point.
- [33]In response to the Applicant’s submissions made with reference to Stephen v Seahill, the Respondent says that the Full Bench decision of the Fair Work Commission in that matter supports rather than detracts from its legal privilege claim. The Respondent says that the factual investigations relevant in that claim were commissioned by lawyers for the purposes of them providing legal advice to the relevant employer as to those investigators’ factual findings. The Respondent says the Full Bench held that, although the lawyers subsequently described the investigations in ways that were not entirely consistent with the privilege claims, those subsequent descriptions did not change the fundamental and privileged character of the investigations. The Respondent says that in the portion of the judgment extracted at [23] above, the Full Bench was drawing a distinction between the investigations commissioned in that matter and those that were commissioned purely for the purposes of factual findings being made. The Respondent says that was not a fair description of the work that Ms Lock was undertaking for ATQLD.
- [34]The Respondent says that its privilege claim is supported by direct evidence.[15] While the Respondent says that the Commission has the discretion to inspect the documents over which privilege is claimed, that course may not be appropriate in circumstances where it says the Applicant’s application is flawed, and such an inspection may result in the Applicant successfully applying for the substantive hearing to be heard by a different Member of the Commission, leading to further delays.
- [35]With regard to the issue raised by the Applicant regarding the impermissibility of a blanket privilege claim, the Respondent says that in her original list of documents, the Applicant made the same type of blanket privilege claim.
Waiver of privilege
Applicant’s submissions
- [36]The Applicant also states that the Respondent waived its privilege, if applicable to begin with, by its conduct of exhibiting two audio recordings of discussions between Ms Lock and Mr Hynes to Mr Lock’s affidavit affirmed on 1 March 2023. The Applicant says that this conduct indicates a waiver of privilege with respect to documents sent and received between Workplace Law Group and Mr John Hynes, and that exhibiting those recordings is inconsistent with the maintenance of the confidentiality that privilege is designed to protect.
- [37]The Applicant also states the ATQLD clearly relied on the show cause process when making decisions about the Applicant’s employment. The Applicant says that in Bartolo v Doutta Galla Aged Services (‘Bartolo’),[16] the Court held any privilege was waived when the documents prepared by the firm were relied upon in making a decision to terminate the Applicant’s employment. The Applicant says that the audio recordings exhibited in Ms Lock’s affidavit of 1 March 2023 are, in substance, matters pertaining to Ms Vasey’s employment and the performance of her employment duties and that these are matters consistent with the documents particularised in the Schedule to the Notice sought to be produced by Workplace Law Group.
Respondent’s submissions
- [38]In response to the submissions regarding the audio recordings of conversations between Ms Lock and Mr Hyne, the Respondent says that the recordings were used for the purpose of drafting Mr Hynes’ statement and that Mr Hynes had confirmed the content of the written statement but passed away prior to its execution. The Respondent says that it will tender the relevant audio recordings pursuant to the Evidence Act 1977 (Qld) s 92.
- [39]The Respondent says there are a number of issues with the Applicant’s submission that reliance on the Hynes recordings is inconsistent with maintaining privilege in any other documents that passed between Ms Lock and Mr Hynes:
- The Applicant’s application seeks production of documents exchanged between 1 January 2021 and 31 July 2021, however the Applicant’s submissions seem to seek documents that fall beyond that date range.
- Ms Lock’s interview with Mr Hynes and subsequent communications with him occurred in February 2022 and there is nothing unfair or inconsistent with relying on those recordings while maintaining privilege claims in respect of communications which occurred well prior to the recordings taking place.
- The use of the recordings was made necessary by Mr Hynes’ death.
- The mere fact that the recordings and all other communications between Ms Lock and the Respondent pertain to Ms Vasey’s employment is not a sufficient basis to find there was an implied waiver and the Applicant has not identified any authority in support of its submissions.
- [40]The Respondent says that although the authorities recognise the concept of ‘associated material’ waiver, the concept does not assist the Applicant. The Respondent says that the recordings speak for themselves and any privileged documents that passed between Ms Lock and the Respondent many months prior to those recordings will not assist in obtaining a proper understanding of what Mr Hynes told Ms Lock in the interview.
- [41]The Respondent addresses the Applicant’s submissions addressing the decision in Bartolo,[17] where the Court held any privilege was waived when the documents prepared by the firm were relied upon in making a decision to terminate the Applicant’s employment. The Respondent says that in that case, Whelan J concluded, ‘Where, however, the client has put in issue its state of mind and it appears that legal advice was given at the relevant time, the privilege was lost where it was shown that there is a likelihood that the legal advice contributed to that state of mind’.[18] The Respondent says that the ‘likelihood’ principle relied upon by Whelan J has been overtaken by GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd.[19]
- [42]The Respondent says that in that case, Macfarlan JA of the New South Wales Court of Appeal (McCallam JA and Simpson AJA agreeing) counselled against focusing on whether legal advice was likely to have contributed to a state of mind that may be in issue. His Honour held that authorities to the contrary had been decided based on intermediate appellate court decisions handed down prior to Mann v Carnell.[20] The Respondent says that those earlier authorities were inconsistent with the High Court’s conclusions in Mann v Carnell, that inconsistency (which may be informed by questions of fairness) is the touchstone of determining whether there has been any implied waiver, rather than an assessment of whether particular legal advice had a bearing on a person’s state of mind.
- [43]The Respondent says that in the Applicant’s case, it does put in issue that, to the extent she suffered any less favourable treatment, the substantial reason for the treatment was her poor performance, and not her age. However, the Respondent says that there is nothing in the pleadings or the evidence that refers to, or alludes in any way, to the advice the Respondent received or which would otherwise give rise to an inconsistency in the Mann v Carnell sense.
Scope of material sought by the Applicant
- [44]The Respondent says that save in respect of the category of documents relating directly to Mr Hynes, the balance of the categories of non-party disclosure are not time limited, and the scope of their subject matter is very broad. The Respondent refers to correspondence of 3 March 2023 where it says the Applicant’s representatives stated that the categories of documents sought would extend to documents created up to Ms Vasey’s dismissal on 3 September 2021, and up to and including any created on 10 May 2021. The Respondent says this exposes the indeterminate and vague scope of the Notice.
- [45]The Respondent also says that on an ordinary reading of the categories of disclosure, they were plainly capable of extending to documents created even very recently in the context of the current in the context of the current litigation. By way of example, the Respondent says that draft affidavits prepared by its legal representatives are a ‘matter pertaining to the performance and conduct’ of Ms Vasey or a ‘matter in respect to the retirement or proposed retirement of Ms Vasey.’ The Respondent says that whatever may be said about the nature of Ms Lock’s retainer at the time the show cause letter was sent, it cannot be sensibly argued that later documents are not covered by legal professional privilege.
General delay
- [46]The Respondent submits that in circumstances where the original application was filed on 5 April 2022 and that a list of documents was exchanged in August 2022, it is unreasonable that the Applicant did not press for production of the material she seeks until 13 February 2023.
- [47]The Respondent says that delay in bringing an application for discovery is a relevant factor that may militate against an order being granted, particularly where the delay is unexplained.[21] The Respondent points to the recent decision of Harper v Gold Coast Pistol Club Limited,[22] which it says is instructive given the Applicant’s delay in seeking the disclosure has resulted in hearing dates being vacated and that this not only impacts on the Respondent but also the Commission’s broader capacity to use its limited resources.
Consideration
- [48]The material that the Applicant seeks Workplace Law Group to produce is replicated above at [3].
Category 1: Documents sought relating to any matter pertaining to the performance and conduct of the Applicant
- [49]With regard to category 1 listed in [3], I am of the view that this category is far too broad to enable a proper consideration of what may need to be produced. I agree with the Respondent that this category may include material created for the purpose of the current proceedings and I will not order its production.
Category 2: Documents sought relating to any matter referred to in the Respondent’s letter to the Applicant of 10 May 2021
- [50]With regard to category 2, material relating to any matter referred to in the letter to Ms Vasey dated 10 May 2021, it is clear that the concerns set out in the show cause notice must have arisen from documented conversations, meetings and records. It is my understanding that a range of this material has already been filed in this proceeding. Any of the documents, emails or notes pertaining to the matters or allegations put to Ms Vasey in that letter should have already been properly made available to her, either at the time, or through disclosure from ATQLD in this matter. However, it appears from the correspondence that the performance management process was ‘outsourced’ to Workplace Law Group and to that extent it is possible that some of the relevant documents may have been in the possession of Workplace Law Group and may not have been disclosed.
- [51]The parties have extensively addressed the ‘dominant purpose test’ in their written and oral submissions. In considering the documents sought in Category 2, I adopt the definition set out in Spotless where it was stated that ‘… In its ordinary meaning, dominant indicates that purpose which was the ruling, prevailing or most influential purpose’.[23] In Talbot v Boyd Legal (A Firm) & Ors,[24] Applegarth J held that ‘An appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence.’
- [52]Having heard the arguments of the parties with regard to the claim of legal professional privilege over the documents relating to the show cause letter, I am of the view that the dominant purpose of that letter was to address conduct and performance issues of an employee. Communications between Workplace Law Group and ATQLD relating to the letter of 10 May 2021 were for the dominant purpose of dealing with Ms Vasey’s purported performance and conduct issues and the show cause process related to that.
- [53]While the Applicant points out that the client cost agreement between Workplace Law Group and ATQLD was not provided until 12 May 2021, I accept the Respondent’s submission that while it may not be ideal, it is not unusual for work to commence prior to a formal written cost disclosure to be in place. However, while there were submissions made that Ms Wilmot had retained Ms Lock to provide legal advice about the process and that this is evidenced by the client cost agreement and Ms Wilmot’s affidavit, I also note that this is not a situation where there was advice provided to Ms Wilmot and then Ms Wilmot undertook actions on behalf of ATQLD on the basis of that advice. Ms Lock was preparing the document and it appears that in doing so, she had regard to material available to her forming the basis for the allegations or factual matters canvassed in the letter.
- [54]The dominant purpose of the work being done, was to manage performance issues. At the time that the show cause document had been created, there had been no decision made to implement disciplinary action or take further steps. The show cause letter clearly goes about putting performance and conduct matters to Ms Vasey. It also appears that Ms Lock was to be responsible for determining the outcome, or at least an outcome, for the consideration of ATQLD. Ms Lock was either basing the matters set out in the show cause letter on briefings or material provided to her, or she had herself identified the performance issues. Either way, having found that the dominant purpose of this part of Ms Lock’s work for ATQLD was the management of alleged performance and conduct issues pertaining to Ms Vasey, I find that legal professional privilege does not apply to this material. I order that material directly related to the production of the show cause letter or relevant to the matters addressed in the show cause letter be produced (to the extent that it has not already been produced by ATQLD).
- [55]To the extent that any of this material contains legal advice regarding unrelated matters beyond the dominant purpose of managing Ms Vasey’s purported performance and conduct issues, this material may be redacted. I note that the production of this material may, in part, address the types of documents and material sought in category 1 above, however it limits the material to be produced to the matters being put to Ms Vasey in the letter of 10 May 2021.
Category 3: Documents sought received or sent to John Hynes between the dates of 1 January 2021 and 31 July 2021
- [56]I have listened to the disclosed and filed recording of the interview Ms Lock conducted with Mr Hynes. I have considered the statement of Mr Hynes which Ms Lock prepared purportedly on the basis of that interview. It is clear to me that there must have been additional material either in the form of documents, further interviews, or file notes which formed the basis of Mr Hyne’s statement which the Respondent seeks to rely upon in these proceedings as he is now deceased. I am unwilling to order production of the broad range of material sought by the Applicant spanning 1 January 2021 to 30 July 2021, as it could pertain to all matter of issues which are unrelated to Ms Vasey and/or to which legal professional privilege may apply. However, to the extent that Ms Lock is in possession of material or correspondence relied upon in the production of Mr Hyne’s statement, I find that it would be unfair for ATQLD assert legal professional privilege over such documents and in fact, it would be counterproductive given that the documents would stand to support and elucidate Mr Hyne’s statement. I order that material that forms the basis for matters traversed in Mr Hynes’ statement prepared by Ms Lock must be produced. I also note that it appears from oral submissions made at the hearing of this matter that there has been some recognition that it might be appropriate for such documents to be provided and that to some extent this may have already occurred.[25]
Category Four: Documents sought relating to any matter in respect to the retirement or proposed retirement of the Applicant
- [57]I am unwilling to order production of the material sought at category 4 in [3]. The category of documents sought is too broad to enable me to consider any claim of legal professional privilege over such material.
Category 5: Documents sought relating to the Applicant’s response of 21 May 2021 to the Respondent
- [58]Ms Vasey provided a response to the show cause notice on 21 May 2021. I accept the Respondent’s submission that Ms Vasey’s response to the show cause notice placed the Respondent on notice that some form of legal proceeding may be anticipated. I therefore find that from the point of receipt of Ms Vasey’s show cause letter onwards, it is probable that legal professional privilege applied to any communications between Ms Lock/Workplace Law Group and ATQLD. It also appears that no disciplinary action commenced against Ms Vasey on the basis of the performance and conduct matters set out in that letter and so it follows that Workplace Law Group’s assistance to manage those matters would have also ceased to be required. I will not make the order sought with regard to Category 5.
Delay
- [59]There have been submissions made by the Respondent that I should consider the delay in the Applicant’s filing of the notice to produce. It is the case that the notice was served some months after the exchange of lists of documents and the filing of material. However, I also note the Applicant’s submission that there is currently no hearing date set down for the matter and that there is no prejudice to trial dates given the previous dates have already been adjourned.
- [60]I understand the Respondent’s submission that I should dismiss the application for an order enforcing the Notice of Non-Party Disclosure in its entirety and that the Applicant should file a new Notice including better particulars of what is sought. I also note the Applicant’s submission that I should make whatever orders I find to be fair in the circumstances to avoid further delay. I am of the view that this matter needs to be progressed to hearing without further delay and so I have determined to take a practical approach and as set out above, work through each of the categories of disclosure sought and determine which are dismissed, which are upheld, and where appropriate, which may include some element to be ordered to be disclosed.
- [61]I order that the non-party disclose the material listed below within 21 days of these reasons being released to the parties, unless an appeal against these orders is filed in the Industrial Court of Queensland before that date.
- [62]The Applicant must pay the non-party’s reasonable expenses of producing a document.[26] In accordance with r 64I of the Rules, within one month of producing a document, Workplace Law Group must give the Applicant written notice of Workplace Law Group’s reasonable expenses of producing the documents. The Applicant may apply to the Registrar within one month after receiving written notice for assessment of the expenses.
Order
- [63]I make the following order:
- With regard to the Notice of Non-Party Disclosure issued by the Applicant on 13 February 2023, Workplace Law Group is to produce to the Applicant, in accordance with the Industrial Relations (Tribunals) Rules 2011 (Qld) rule 64H(1):
- Documents in Category 2 (noting that any legal advice unrelated to the purpose of managing Ms Vasey’s alleged performance and conduct issues should be redacted); and
- Documents in Category 3, relating only to material relied upon in Mr John Hynes’ statement prepared by Ms Sarah Lock of Workplace Law Group.
- Workplace Law Group is to produce the documents referred to in Order 1 within 21 days of this decision being released, unless an appeal of these orders is filed in the Industrial Court of Queensland before that date;
- Workplace Law Group is not required to produce documents in Category 1, 4 or 5.
- Within one month after producing the documents referred to in Order 1 above, Workplace Law Group is to give the Applicant written notice of its reasonable expenses of producing those documents.
Footnotes
[1] T 1-1 – T 1-29; Applicant’s outline of argument filed 28 March 2023; Respondent’s outline of argument filed 11 April 2023; Applicant’s outline of argument in reply filed 13 April 2023.
[2] T 1-29 – T 1-30.
[3] [2021] FCA 512.
[4] Ibid [81]. Citations omitted.
[5] (1999) 201 CLR 49, [35].
[6] Carnell v Mann (1998) 159 ALR 647.
[7] (1996) 186 CLR 404, 416 (‘Spotless’).
[8] Sparnon v Apand Pty Ltd (1996) 138 ALR 735, 741 (Branson J); Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 153 ALR 393; Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217 (Finn J).
[9] [2021] FWCFB 2623, [71] (‘Stephen v Seahill’) (citations added).
[10] [2005] AIRC 955, [9].
[11] Ibid [12].
[12] Bowker v DP World Melbourne Ltd [2015] FWC 7887.
[13] [2018] FWC 6006.
[14] Commissioner of Taxation v PricewaterhouseCoopers [2002] FCA 278; CUB Australia Holding Pty Ltd v Commissioner of Taxation [2021] FCA 43.
[15] Affidavit of Ms Angie Wilmot affirmed 6 April 2023.
[16] [2014] FCCA 1517 (‘Bartolo’).
[17] Ibid.
[18] Ibid [90].
[19] [2020] NSWCA 266.
[20] (1999) 201 CLR 1; [1999] HCA 66.
[21] Dixon v Watpac Ltd [2022] FedCFamC2G 778, [149]; Deputy Commissioner of Taxation v Miller [2021] WADC 29, [107]-[110]; Australian Mud Co Pty Ltd v Coretell Pty Ltd (No 2) [2014] FCA 723, [11]; Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 3) [2018] FCA 1540, [36].
[22] [2023] FedCFamC2G 206.
[23] Spotless (n 7) 98.
[24] [2020] QSC 185, [80].
[25] T 1-63 – T 1-64.
[26] Industrial Relations (Tribunals) Rules 2011 r 64I(1).