Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2024
  4. Hitchcock v State of Queensland (Office of Industrial Relations) - [2024] QIRC 258

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Hitchcock v State of Queensland (Office of Industrial Relations)[2024] QIRC 258

Hitchcock v State of Queensland (Office of Industrial Relations)[2024] QIRC 258

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258

PARTIES:

Hitchcock, Elizabeth

(Appellant)

v

State of Queensland (Office of Industrial Relations)

(Respondent)

CASE NO:

GP/2023/31

PROCEEDING:

Interlocutory application – application for disclosure

DELIVERED ON:

7 November 2024

MEMBER:

Hartigan DP

HEARD AT:

Brisbane

HEARD ON:

8 August 2024

ORDER:

  1. The Respondent is to disclose to the Applicant an unredacted copy of briefing note PM-06 and briefing note PM-07 by 4pm on 11 November 2024. 
  1. The Applicant’s application for disclosure of the legal advice referred to in paragraph 24 of Mr Peter McKay’s affidavit is dismissed.

CATCHWORDS:

GENERAL PROTECTIONS – APPLICATION IN EXISTING PROCEEDINGS – Application in existing proceedings for disclosure – where Respondent objects to the disclosure on the basis that the documents are subject to legal professional privilege – whether legal professional privilege has been established – whether legal professional privilege has been waived – application for disclosure of legal advice dismissed – application for disclosure of redacted documents granted.

LEGISLATION:

Industrial Relations Act 2016 (Qld) Ch 8, Part 1

Industrial Relations (Tribunals) Rules (Qld) rr 41, 46

CASES:

Australia Pty Ltd v Nyran Pty Ltd [2002] FCA 1302

Ferella & Anor v Official Trustee in Bankruptcy (2010) 188 FCR 68

Macquarie Bank Limited v Arup Pty Limited [2016] FCAFC 117

Queensland Local Government Superannuation Board v Allen [2016] QCA 325

Sanrus Pty Ltd and Ors v Monto Coal Pty Ltd and Ors [2019] QSC 144 [2019] 24 QLR

APPEARANCES:

Mr G. Allan instructed by Allan Bullock Solicitors & Advocates for the Applicant.

Ms J. Marr instructed by Crown Law for the Respondent.

Reasons for Decision

Introduction

  1. [1]
    The Applicant seeks an order for the production of documents over which the Respondent claims legal professional privilege.[1]
  1. [2]
    Specifically, the documents sought for disclosure by the Applicant are a legal advice provided by the Respondent’s lawyers to the Respondent and unredacted copies of documents exhibited to the affidavit of Mr Peter McKay.
  1. [3]
    This application is made in the context of the substantive proceeding which is a general protection application filed pursuant to Chapter 8, Part 1 of the Industrial Relations Act 2016 (Qld) (‘IR Act’).

Relevant Background

  1. [4]
    By way of background, the Applicant was employed by the Respondent in the position of Chief Advisor (PO6), Engineering Services, Specialised Health and Safety Services of the Office of Industrial Relations (‘OIR’).
  2. [5]
    An investigation into four allegations against the Applicant was commissioned by OIR and conducted by Mr Gavin Gleeson, the then Acting Director of Ethical Standards, Business and Corporate Services, OIR.
  1. [6]
    On 21 March 2023, Mr Gleeson completed an investigation report entitled “Investigation into allegation against a SHSS Chief Advisor – Engineering” (‘Investigation Report’).
  1. [7]
    Mr Gleeson found all four allegations were “capable of being substantiated” against the Applicant. 
  1. [8]
    On 13 June 2023, Ms Megan Barry, then Deputy Director-General, OIR, on behalf of the Respondent, issued the Applicant a “Show Cause Notice – Decision on Disciplinary Findings and Proposed Disciplinary Action” (‘First Show Cause Notice’) directing her to show cause why disciplinary action should not be taken against her in relation to the four allegations referred to in the Investigation Report. On 7 July 2023, the Applicant provided her response to the First Show Cause Notice.
  1. [9]
    Mr McKay was, at the relevant time, employed as the Deputy Director General within OIR.
  1. [10]
    It is Mr McKay’s evidence[2] that he was a relevant decision maker in relation to:
  1. ‘Show Cause Notice  -  Disciplinary Finding and Proposed Disciplinary Action’ correspondence dated 23 August 2023 (‘Show Cause Notice’); and
  1. ‘Decision and Disciplinary Action’ correspondence dated 5 October 2023 (‘Disciplinary Decision’).
  1. [11]
    Under the heading ‘Discipline Process against Ms Hitchcock’, in his affidavit, Mr McKay deposes to steps that he was aware of that that had been taken prior to his involvement.
  1. [12]
    Mr McKay appears to have become involved in the process in or around July 2023. The following paragraphs of his affidavit provide an overview of his involvement and are relevant to the application:
  1. On 10 and 11 July 2023, I reviewed a brief of material in relation to the disciplinary process against Ms Hitchcock including: First Show Cause Notice, Investigation Report dated 21 March 2023 (including attachments) and Ms Hitchcock's responses to the First Show Cause Notice dated 7 July 2023. I was provided with a complete copy of the Investigation Report and I considered the attachments to the Investigation Report as part of my consideration of this disciplinary process.
  1. After reviewing the brief of material, in accordance with my usual practice as outlined above, I was satisfied that each of the four allegations were capable of substantiation and that Ms Hitchcock was liable to disciplinary action. I considered that taken together, the conduct the subject of the allegations demonstrated a pattern of behaviour that was not compatible with maintaining an employment relationship, especially given the nature of Ms Hitchcock's role in OIR. I considered that there was a pattern of a failure to comply with the expectations, instructions and directions given.
  1. I directed that legal advice be obtained from Crown Law in respect of the disciplinary process. I do not waive legal professional privilege in respect of that advice.
  1. A redacted copy of the signed briefing note dated 11 July 2023 and considered by me, (“Briefing Note 1”) and including my contemporaneous record of my considerations at the time, is exhibited and marked PM06 (“Exhibit PM-06”). The briefing note has been redacted on the basis of legal professional privilege.
  1. On 16 August 2023, I considered the matter again. In undertaking that review, I noted the seriousness of the allegations, and of particular concern to me was the relationship between Allegations 1 and 2. I considered that the nature of Ms Hitchcock's role was highly relevant. She was a reasonably senior public service officer. I considered that as a professional and senior public service officer, the expectations of her ethical behaviour were high. I also had regard to the fact   that in August 2022, Ms Hitchcock had previously sought and obtained approval from her manager, Aaron Holman to provide earlier versions of incomplete, unreviewed and unapproved draft Safety Case Detailed Assessments (SCDA) to Village Roadshow Theme Parks (VRTP). Given that on this occasion, Ms Hitchcock had first sought approval from Mr Holman before providing the draft material to VRTP for a specific purpose at that time, indicated to me that she knew that this was not something to be done lightly or that was within her responsibility. I also considered that on that earlier occasion-in August 2022, the release of the draft material was approved for a different purpose, and that since that time, she had been formally advised that she had been removed as the lead assessor. I considered the current confidentiality breach to be a serious issue.
  1. I also considered that Ms Hitchcock had been given a reasonable opportunity to respond to the First Show Cause Notice. At the time she was suspended on full remuneration, and not burdened by the pressures of work. She had also been granted an extension to respond.
  1. A redacted copy of the signed briefing note dated 16 August 2023 and considered by me, (“Briefing Note 2”) and including my contemporaneous record of my considerations at the time, is exhibited and marked PM-07 (“Exhibit PM-07”). The briefing note has been redacted on the basis of legal professional privilege.
  1. [13]
    Relevantly, the Applicant seeks that the Crown Law advice referred to in paragraph 24 of Mr McKay’s affidavit together with the unredacted versions of the briefing notes exhibited at PM-06 and PM-07 of Mr McKay’s affidavit be disclosed.
  1. [14]
    As noted above, paragraphs 22 to 26 of Mr McKay’s affidavit refer to this consideration of briefing note PM-06. Briefing note PM-06 was prepared by Mr Gleeson. The briefing note PM-06 states that its purpose is to seek the Deputy Director-General’s consideration of Ms Hitchcock’s response to a Show Cause Notice – Liability for Disciplinary Findings. Briefing note PM-06 comprised of five sections being, Key Issues, Background, Human Rights Considerations, Recommendations and Notes.
  1. [15]
    Briefing note PM-06 identified the key issues of the matter as follows:

Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258

Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258

  1. [16]
    Briefing note PM-06 also relevantly contains the following recommendation and notes on the decision making and considerations signed by Mr McKay:

Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258

  1. [17]
    It is apparent from the above extract that Mr McKay signed and dated briefing note PM-06 on 11 July 2023.
  1. [18]
    Further, it is apparent from Mr McKay’s handwritten consideration of briefing note PM-06 that he, inter alia, directed that Crown Law prepare a Show Cause Notice – Decision and Proposed Penalty following his consideration.
  1. [19]
    It is unclear if the direction to instruct Crown Law to prepare the show cause documents referred to in briefing note PM-06 is distinct from the instructions Mr McKay refers to in paragraph 24 of his affidavit. Relevantly, paragraph 24 of Mr McKay’s affidavit refers to him instructing Crown Law to provide advice in respect of the disciplinary process.
  1. [20]
    In any event, in the context of paragraph 24 of Mr McKay’s affidavit and Mr McKay’s handwritten notes of his consideration of briefing note PM-06, the instructions to Crown Law would have been issued at some time on or after 11 July 2023.
  1. [21]
    Briefing note PM-06 was prepared by Mr Gleeson on 10 July 2023. The basis of the redaction of PM-06 is not readily apparent from the above chronology. There is no reference to any legal advice having been received prior to or on 10 July 2024. Unfortunately, no affidavit was provided by either Mr Gleeson, Mr McKay or the Respondent’s solicitors addressing the basis for the redaction (or at all with respect to this application). I will address the absence of this evidence further below.
  1. [22]
    Briefing note PM-07 was prepared by Mr Gleeson on 11 August 2023. It was also addressed to Mr McKay with the stated purpose being “[t]o consider the commencement of a Show Cause Notice – Decision on Disciplinary Finding and Proposed Disciplinary Action towards Ms Hitchcock”.
  1. [23]
    Just like briefing note PM-06, briefing note PM-07 is comprised of five sections being, Key Issues, Background, Human Rights Considerations, Recommendations and Notes.
  1. [24]
    Briefing note PM-07 had paragraphs redacted under the heading Key Issues as follows:

Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258

Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258

  1. [25]
    Briefing note PM-07 also had parts of Mr McKay’s notes on his consideration and determination redacted as follows: 

Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258

Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258

  1. [26]
    It is apparent from the above extracts that the key issues section completed by Mr Gleeson contained redactions. Further, Mr McKay’s consideration of the matter which led him to propose the disciplinary penalty was also redacted.

Statutory Framework

  1. [27]
    The IR Rules sets out the powers of the Commission in relation to orders for further disclosure:

41 Directions orders

  1. The court, commission or registrar may make an order (a directions order) about the conduct of a proceeding on the application of a party or on the initiative of the court, commission or registrar.
  1. A directions order may, for example, relate to the following—

…

(o)requiring disclosure of documents;

…

46 Duty of disclosure

  1. If a directions order requiring disclosure of documents is made, a party must disclose any document that—
  1. is directly relevant to the proceeding or a matter in issue in the proceeding; and
  1. is in, or comes into, the possession of the party.
  1. A party must act under subrule (1) until the proceeding is concluded or the matter in issue is admitted, withdrawn, struck out or otherwise disposed of.
  1. Subrule (1) does not apply to a document in relation to which there is a valid claim to privilege from disclosure.

Relevant Legal Principles

Legal Professional Privilege

  1. [28]
    In the Queensland Local Government Superannuation Board v Allen (‘Allen’)[3] the Court of Appeal considered whether the respondent in that proceeding had implicitly waived legal professional privilege over a letter containing legal advice.
  1. [29]
    Her Honour Philippides JA set out a summary of the relevant legal principles with respect to legal professional privilege as follows:

[4] A person entitled to the benefit of legal professional privilege may lose the protection provided by  that  privilege  because  of  implied  or  imputed  waiver.    While  waiver, strictly speaking, involves an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege), in some cases waiver will be imputed even though that consequence was not intended by the party losing the privilege. Such conduct on the part of the person entitled  to  the  benefit  of  the  privilege  will  ordinarily  involve  or  relate  to  a  limited actual or purported disclosure of the contents of the privileged material.

[5] While in Attorney-General (NT) v Maurice waiver of legal professional privilege by imputation or implication of law was stated to be based on notions of fairness, those notions do not, as was  clarified  in Mann  v  Carnell and  reiterated  in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management & Marketing Pty Ltd, involve “some overriding principle of fairness operating at large”.  Rather, notions of fairness are to be considered in the context of conduct which is inconsistent with the maintenance of the confidentiality. As was stated in Osland  v  Secretary, Department of Justice, waiver of the kind presently in question “reflects a judgment that  the  conduct  of  the  party  entitled  to  the  privilege  is  inconsistent  with  the maintenance of the confidentiality which the privilege is intended to protect”.  That judgment is one “to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances”.

(citations omitted).

  1. [30]
    Further, in Allen, Burns J observed as follows:[4]

[50] Legal professional privilege is “more than an aspect of civil and criminal procedure and more than a rule of evidence”; it  is  a  rule  of  substantive  law. It  may  be “availed of by a person to resist the giving of information or the production of documents  which  would  reveal communications  between  a  client  and  his  or  her lawyer  made  for  the  dominant  purpose  of  giving  or  obtaining  legal  advice  or  the provision of legal services, including representation in legal proceedings”. There is no differentiation in legal effect between the two categories of legal professional privilege and, as such, either may be invoked to resist the disclosure of a document in the course of a proceeding where to do so would reveal a communication falling under  either  category. The principle  underlying  legal  professional  privilege  is  that “a person should be entitled to seek and obtain legal advice without the apprehension of being prejudiced by subsequent disclosure of confidential communications”. Without the privilege, the administration of justice “would be greatly impeded or even rendered impossible”. It rests not only on the confidence reposed by the client in the  legal  adviser  but  the  necessity,  in  the  interests  of  justice,  of  protecting  those communications from disclosure. Although confidential communications between the client and lawyer are protected, the privilege  exists for the benefit of the client and  not  the  lawyer. A court  may  examine  documents  where  there  is  a  disputed claim of privilege, and should not be hesitant to do so. In appropriate cases, a court may also permit cross-examination of a deponent of an affidavit claiming privilege.

Onus

  1. [31]
    The party claiming that it is entitled to a privilege claim must establish the factual foundation for the claim. Burns J considered the application of the onus in Allen as follows:

[51] As the party asserting an entitlement to claim privilege over the advice, the Board had the onus of proving the facts on which the claim for privilege was said to be founded. This therefore required the Board to establish that the advice contained confidential communications for the dominant purpose of either obtaining legal advice or furthering existing or anticipated litigation or for both such purposes. These facts were established by the affidavits filed on behalf of the Board. Indeed, it was not disputed that, at the time when the advice was provided, it attracted legal professional privilege. However, as the party alleging that privilege had been impliedly waived, Ms Allen bore the onus of proof on that issue, and that was the real question for determination on the hearing of the application in the court below.

  1. [32]
    Once the factual basis for the claim of privilege has been established, the onus of establishing the waiver of privilege rests with the party asserting that privilege has been waived. In Sanrus Pty Ltd and Ors v Monto Coal Pty Ltd and Ors[5] (‘Sanrus’) Flanagan J summarised the relevant principles as follows:

[28]  The party asserting that privilege has been waived bears the onus of establishing the waiver of privilege.

[29]  In relation to issue waiver specifically, the defendants submit that the following principles may be derived from the authorities.

“…

  1. The mere fact that a party puts its state of mind in issue on the pleadings does not give rise to an implied waiver of privilege: Federal Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 at [65]; The Queensland Local Government Superannuation Board v Allen [2016] QCA 325 at [71] (Burns J, McMurdo P (at [1]) and Philippides JA (at [7]) agreeing).
  1. There will be no waiver of privilege where a party merely joins issue with an allegation made by the opposing party that he, she or it possessed a particular state of mind: Allen at [71].
  1. There will be an issue waiver when a party has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence: Rio Tinto at [52]; Arup at [36]; Allen at [7], [71];
  1. But it is not enough to establish a waiver of privilege that the state of mind asserted relates to a legal position and it is likely that a party obtained legal advice in respect of that legal position: Ferella v Offıcial Trustee in Bankruptcy (2010) 188 FCR 68 at [65] ; Archer Capital 4A Pty Ltd v Sage Group PLC (No 3) [2013] FCA 1160; 306 ALR 414 at [48] (both cited with approval, Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117 at [28], 36], [37]); and see Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118 at [78]-[79], noting that the ‘Undisclosed Matters’ included questions of contractual performance: [19(a)]);
  1. The ultimate question is whether, as part of the privilege holder’s case, an assertion has been made that lays open the privileged communication to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege: Allen at [71]. Put another way, the question is whether it would be unfair in the sense explained by the majority of the High Court in Mann v Carnell to permit reliance on legal advice for forensic advantage while at the same time preventing the opposing party from having access to it: Allen at [73].”

Implied waiver of privilege

  1. [33]
    After analysing the relevant authorities with respect to implied waiver of legal professional privilege Burns J, in Allen,[6] summarised the relevant principles able to be distilled from those authorities as follows:

[69]  The decisions just examined inform the following summary of the principles applicable to a determination as to whether legal professional privilege has been impliedly waived:

  1. a person may waive privilege without intending that result; the test is objective and privilege may be waived regardless of the subjective intention of the privilege holder;
  1. privilege will be waived where the conduct of the privilege holder is inconsistent with the maintenance of confidentiality in the communication which the privilege would otherwise protect;
  1. the focus is on the conduct of the privilege holder, not the party attempting to destroy the privilege;
  1. whether there is relevant inconsistency is to be evaluated in accordance with the context and circumstances of the case and in the light of any considerations of fairness arising from that context and those circumstances;
  1. the privilege will not be lost merely because there has been a reference by the privilege holder to the privileged communication in a pleading or an affidavit, although it will be lost if the advice is reproduced in full in the pleading or affidavit;
  1. whether a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of the advice as a whole so as to amount to an implied waiver with respect to the whole of the advice will again depend on the context and circumstances of the case;
  1. in such cases, the context can include the nature of the matter in respect of which the advice was received, the evident purpose behind making the relevant disclosure and the legal and practical consequences of limited rather than complete disclosure;
  1. where there has been disclosure of a privileged communication contained in the document, and the document deals with a single subject-matter, it will be unfair to allow a party to use part of the document and claim privilege as to the remainder; at least so far as the document concerns the same subject-matter.

A particular kind of inconsistency

  1. [34]
    Further, it is necessary to analyse the acts or omissions of the privilege holder to determine if such conduct is inconsistent with the maintenance of privilege in the relevant communication.  The principles with respect to this approach were set out by Burns J[7] in Allen as follows:

[70] In the application of the above principles to a given case, the court must analyse the acts or omissions of the privilege holder that are said to be inconsistent with the maintenance of privilege in the relevant communication.  Because the result of any such analysis will turn on the particular context and circumstances of the case at hand, other cases in which implied waiver has been considered provide only limited assistance. Nonetheless, some broad themes have emerged from the case law in relation to particular kinds of conduct. One of those themes concerns what is sometimes referred to as “issue waiver”, that is to say, conduct in connection with the prosecution or defence of a litigated claim by reason whereof an otherwise privileged communication is put in issue. That may be because the privilege holder has advanced a claim, mounted a defence or in some other way placed reliance on the privileged communication to advance its interests in the litigation.

[71]   In cases of this kind, it has been held that where “the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication”, the privilege in the communication will be waived. It has also been held that it “is not apparently open to another party to litigation to force waiver of a party’s legal professional privilege by making assertions about, or seeking to put in issue, that party’s state of mind”. Indeed, that is just another way of saying that implied waiver can only come about through the acts or omissions of the privilege holder, and not the party seeking to destroy the privilege. Waiver cannot be contrived by such a party, whether by the contents of that party’s pleading or otherwise. Lastly, it has been held that the question is not whether the privilege holder has put their state of mind in issue in the proceeding but whether the contents of an otherwise privileged communication have either directly or indirectly been put in issue by the privilege holder.[164] That may occur where a party pleads reliance on the contents of legal advice to justify a claimed state of mind but it will not occur where the party is merely joining issue with an allegation made by the opposing party that he, she or it possessed a particular state of mind. The “mere fact that a party pleads a cause of action that includes their state of mind as a material fact, or otherwise puts their state of mind in issue in the proceedings, does not necessarily give rise to an implied waiver in respect of legal advice that may have been received by the party, even if that legal advice may be relevant to the party’s state of mind”. In the end, the question is whether, as part of the privilege holder’s case, an assertion has been made that lays open the privileged communication to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege.  As Hodgson JA held in Council of the New South Wales Bar Association v Archer:

“It is not enough to bring about a waiver of client legal privilege that the client is bringing proceedings in which the content of the privileged communications could, as a reasonable possibility, be relevant and of assistance to the other party. For the client to do this is not inconsistent with the maintenance of the privilege, and does not give rise to unfairness of the type in question. What would involve inconsistency and relevant unfairness is the making of express or implied assertions about the content of the privileged communications, while at the same time seeking to maintain the privilege.”

[72] I respectfully agree with what has been held in the cases to which I have referred in the preceding paragraph. They each conform with the principles derived from the joint judgment in Mann v Carnell and assist on the application of those principles to disputes about implied waiver arising in the context of a proceeding.

[73] Plainly, much more than a passing reference to legal advice having been taken is needed before privilege in that advice will be lost. Indeed, even where the substance or effect of a legal advice is disclosed, it does not necessarily follow that privilege has been impliedly waived. In that circumstance, the purpose of the disclosure and the extent to which the substance or effect of the advice has been, or is proposed to be, relied on by the privilege holder in the litigation will be important considerations. What is also clear is that a party to litigation cannot construct a case for waiver through its own pleadings. Even where the privilege holder’s state of mind is an issue in a proceeding, the taking of advice and the content of that advice will be facts beyond reach of the other party unless the privilege holder has attempted to boost its case by reliance on the advice in some way. On the other hand, if the privilege holder has sought to justify its position (or state of mind) by reference to the substance or effect of legal advice it has received, such conduct will be inconsistent with the maintenance of confidentiality in the advice. In any such case, the privilege holder has put the legal advice in issue in the proceeding as something supporting the claim or defence. In those circumstances it would accordingly be unfair in the sense explained by the majority in Mann v Carnell to permit reliance on the advice for forensic advantage while, at the same time, preventing the opposing party from having access to it.

  1. [35]
    In Sanrus, Fallnagan J relevantly noted that whether there is an implied waiver of legal professional privilege will vary according to the circumstances of each case, the specific state of mind that is being asserted and the nature of the legal position to which the state of mind relates. His Honour continued as follows:

[33]  This is evident from Commissioner of Taxation v Rio Tinto Ltd37 (Rio), which the defendants relied upon in support of the principle. The case concerned an appeal from an objection decision. Rio requested the Commissioner to provide the “usual particulars of all matters, things, circumstances or events” taken into consideration by the relevant decision-maker in reaching the conclusion that dividend payments made to Rio arose out of dividend stripping. In response, the Commissioner identified a schedule of documents. The Commissioner subsequently refused to disclose several of the documents in the schedule on the ground of legal professional privilege. Rio claimed that privilege had been impliedly waived by the Commissioner’s response to Rio’s request for particulars. The Full Court of the Federal Court noted that “[m]odern discussions on issue waiver usually commence with the decision of the Full Court of the Supreme Court of New South Wales in Thomason v Campbelltown Municipal Council”. That case concerned undue influence. After quoting the well-known passage of Jordan CJ (at 358-359), the Court stated:

“As Jordan CJ remarked, in undue influence cases, the plaintiff necessarily puts in issue his or her own state of mind. An allegation of undue influence on the plaintiff’s mind may be met by evidence that the plaintiff received advice from an independent third party, as for example, a legal adviser. By bringing the suit, the plaintiff brings the matter of influence before the Court (and into the public domain). If he or she received relevant legal advice, the Court would be required to assess the degree of the alleged influence on the plaintiff and the countervailing effect of the advice.”

Consideration

  1. [36]
    The Applicant submits that, in circumstances where Mr McKay’s state of mind in making his decisions is squarely in issue, the law operates to imply the waiver of the contents of the otherwise privileged communications to ensure that, as a matter of fairness, the Applicant is in possession of all documents and information that the decision maker referred to when he made the decisions.
  1. [37]
    The Applicant relies on the following relevant authorities and legal principles as summarised by RD Nicholson J in BP Australia Pty Ltd v Nyran Pty Ltd:[8]

10  In Telstra Corporation at 168 the majority concluded that:

"Where, however, a party relies on a cause of action, an element of which is the party's state of mind (including the quality of the party's assent to a transaction) the party is taken to have waived privilege in respect of legal advice which the party had, before or at the time of the relevant events, material to the formation of that state of mind."

That view was reached after a review of authority at 165 - 167. In addition to the decisions in Thomason and Ampolex the majority referred to Hong Kong Bank of Australia Ltd v Murphy [1993] VicRp 83; [1993] 2 VR 419 at 439 and Pickering v Edmunds (1994) 63 SASR 357 at 362. The former was a case where issues were raised concerning legal advice received. The latter was where the plaintiff's knowledge of the legal effect of a deed was in issue. The majority also referred to the decision of the High Court in Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 and Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83. In Ampolex Giles CJ Comm D had accepted that imputation of waiver is ultimately founded on the fairness considered in Maurice's case and not by reference to the actual intention of a party who made use of the material. With the exception of Benecke's case (where the appellant herself was found to have lifted the veil of secrecy by giving the version of the communications) the majority in Telstra considered that the other cases were ones in which, unless waiver of the privilege had been imputed to a party, the fact finding task of the court with respect to issues raised by that party would have been compromised. The majority stated (at 166):

"Where, as in this case, a party pleads that he or she undertook certain action "in reliance on" a particular representation made by another, he or she opens up as an element of his or her cause of action, the issue of his or her state of mind at the time that he or she undertook such action. The court will be required to determine what was the factor, or what were factors, which influenced the mind of the party so as to induce him or her to act in that way. That is, the party puts in issue in the proceeding a matter which can not fairly be assessed without examination of relevant legal advice, if any, received by that party. In such circumstances, the party, by putting in contest the issue of his or her reliance, is to be taken as having consented to the use of relevant privileged material, or to put it another way, to have waived reliance on the privilege which such material would otherwise attract."

…

11  The decision of the majority in Telstra came before a further Full Court in Perpetual Trustees (WA) Ltd v Equuscorp Pty Ltd (Ryan, Carr and Marshall JJ, 7 September 1999, unreported). The Full Court in Perpetual Trustees accepted that the authorities show the underlying principle for imputed waiver is that there has been some conduct on the privilege holder's part whereby it becomes unfair to maintain the privilege: par [15]. It could see no basis for distinguishing the matter before it from the situation which arose in Telstra, but rather considered that the situation before it was an even clearer case of imputed waiver because not only was there "a mere pleading of reliance" but there was an added ingredient of evidence that legal advice was sought and obtained at a relevantly material time. This evidence appeared in the schedule to an affidavit.

…

12  There is a recent decision of a single judge in Fort Dodge Australia Pty Ltd v Nature Vet Pty Ltd (Hely J, 24 April 2002, unreported)

…

The issue of waiver was raised and Hely J pointed out that what brought about the waiver was the inconsistency which the courts, where necessary informed by considerations of fairness, perceived between the conduct of the client and maintenance of the confidentiality, not some overriding principle of fairness operating at large: Mann at 13. Hely J accepted that where a party makes allegations raising the issue of its state of mind, to which legal advice is likely to have contributed, the party cannot continue to claim legal professional privilege for that advice: Ampolex. He referred to the decision of the majority in Telstra and to the decision in Perpetual Trustees.

…

17  In my opinion I remain bound by the decisions of the Full Court in both Perpetual Trustees and in Telstra on the point in issue. Absent a determination on the issue by the High Court (which would have occurred had the appeal in Telstra not been settled), I consider that the present law is as enunciated by the majority in Telstra and applied by the Full Court in Perpetual Trustees and by Hely J in Fort Dodge. That is, the pleading which puts in issue a state of mind which is an issue which cannot fairly be assessed without examination of relevant legal advice leads to imputation of waiver of privilege which such material would otherwise attract.

  1. [38]
    In summary, the Respondent relevantly submits that the documents remain privileged on the basis that:
  1. the relevant state of mind of Mr McKay in this context is whether he was reasonably satisfied that each of the four disciplinary allegations against Ms Hitchcock were capable of substantiation and that Ms Hitchcock was liable to disciplinary action (as per the Public Sector Act 2022 (Qld), s 91(1));
  1. the factual elements which comprised the allegations against Ms Hitchcock were not the subject of factual controversy. That is, it was undisputed then (and remains undisputed now) that: Ms Hitchcock obtained witness statements from the Village Roadshow employees via her personal email address; that she did not disclose the fact that she had done so to her supervisor, Mr Holman; that she sent the 9 December 2022 email to Village Roadshow attaching the draft audit reports after she had been removed as Lead Assessor; and that she failed to comply with the direction to attend the workplace investigation interview with Mr Gleeson on 17 March 2023;
  1. paragraph 24 of Mr McKay’s affidavit does not put the contents of the legal advice in issue. It is limited to a statement that he directed that advice be obtained ‘in respect of the disciplinary process’. There is nothing in that statement that either puts the contents of that advice in issue or which makes Mr McKay’s requisite state of satisfaction materially dependent on the advice;
  1. paragraph 26 of Mr McKay’s affidavit deposes to Mr McKay’s further considerations as to the matter on 16 August 2023. Again, it is pellucid from the reasoning exposed there that it was reached independently, on the basis of the facts as known, and without material reliance on Crown Law advice. There is nothing in this paragraph which waives legal professional privilege over that advice, or to put it another way, which is inconsistent with the maintenance of that privilege; and
  1. the Applicant is not unfairly precluded from understanding the reasons operating in the mind of Mr McKay as to his decision to issue the show cause letter on 24 August 2023 and his subsequent decision on 5 October 2023 to terminate Ms Hitchcock’s employment. Those reasons, and the process adopted by Mr McKay, are plainly revealed in the material included his affidavit, including the extensive show cause letter and termination letter.

Briefing Note PM-06

  1. [39]
    As noted above, the Respondent claims legal professional privilege with respect to the redacted passage of the briefing note PM-06 prepared by Mr Gleeson and subsequently considered by Mr McKay.
  1. [40]
    The onus rests on the party who asserts the entitlement to claim the privilege to establish the factual foundation for the claim. Consequently, the onus rests on the Respondent to establish the factual foundation for the claim of privilege with respect to the redacted passage of briefing note PM-06.
  1. [41]
    Unlike in Allen, the Respondent has not sought to adduce any additional affidavit material in support of its objection to the application from the solicitor who provided the legal advice over which the privilege claim was made and/or the representative of the Respondent who provided the instructions for the provision of the legal advice and whether and when and to whom such advice was given. The Court concluded in Allen that the information contained in the affidavits established that the advice contained confidential communication for the dominant purpose of either obtaining legal advice or furthering existing anticipated litigation, or for both such purposes.[9]
  1. [42]
    The explanation provided by the Respondent for the redaction of the passage in briefing note PM-06 is at paragraph 25 of Mr McKay’s affidavit where he asserts that:
  1. A redacted copy of the signed briefing note dated 11 July 2023 and considered by me, (“Briefing Note 1”) and including my contemporaneous record of my considerations at the time, is exhibited and marked PM06 (“Exhibit PM-06”). The briefing note has been redacted on the basis of legal professional privilege.
  1. [43]
    There is no explanation provided by Mr McKay as to the basis upon which it is claimed that the redacted passage is entitled to a claim of legal professional privilege.
  1. [44]
    Tellingly, there is no explanation as to the type of information that is in the redacted passage, who provided the information and when, and why such information should be the subject of legal professional privilege.
  1. [45]
    On the matters deposed to in Mr McKay’s affidavit and the matters included in his handwritten notes contained in briefing note PM-06, it can be inferred that Mr McKay sought Crown Law to provide an advice and/or to prepare the disciplinary process documents on a date following 11 July 2024. The passage containing the redaction appears to have been authored by Mr Gleeson, the investigator, on or before 10 July 2024. There is no evidence that the Respondent was in receipt of any information that could claim to have an entitlement of legal professional privilege at the relevant time.
  1. [46]
    Consequently, I am not satisfied that the Respondent has discharged the onus to establish that it is entitled to claim privilege over the redacted passage contained in briefing note PM-06.
  1. [47]
    An order will be issued requiring the Respondent to disclose an unredacted copy of briefing note PM-06 to the Applicant.

The Legal Advice

  1. [48]
    Mr McKay deposes[10] to issuing instructions to the Respondent’s legal representatives in the following terms:
  1. I directed that legal advice be obtained from Crown Law in respect of the disciplinary process. I do not waive legal professional privilege in respect of that advice.
  1. [49]
    Mr McKay’s affidavit does not state whether he subsequently received the advice he refers to in paragraph 24, and if so, when he received that advice.
  1. [50]
    I accept that an advice received following the issuing of instructions in the terms referred to by Mr McKay would generally be advice containing confidential communications for the dominant purpose of either obtaining legal advice or furthering existing or anticipated litigation or for both such purposes.
  1. [51]
    Relevantly, however, Mr McKay does not assert that he had regard to the advice in the formation of the impugned decision. Indeed, other than indicating that he issued the instructions to obtain legal advice there is no further information provided by him which indicates that he received the advice and/or that he had regard to it in making the decision.
  1. [52]
    In any event, the mere fact that legal advice is relevant to an issue in the case, including a person’s state of mind, does not amount to an implied waiver.[11]
  1. [53]
    In Macquarie Bank Limited v Arup Pty Limited[12] the Full Court of the Federal Court made the following observations:
  1. The correct approach was succinctly described by Yates J in Ferella & Anor v Official Trustee in Bankruptcy (2010) 188 FCR 68 at [65] in the following terms:

...However the question is not simply whether the holder of the privilege has put that person’s state of mind in issue but whether that person has directly or indirectly put the contents of the otherwise privileged communication in issue: see [Rio Tinto] at [65]. Indeed, even the fact that the holder of the privilege makes clear that the advice was relevant or contributed to a particular course of conduct would not be sufficient to waive the privilege unless, possibly, the contents of the legal advice (and not merely the fact of the advice) are specifically put in issue by relying on the contents of the advice to vindicate a claimed state of mind: [Rio Tinto] at [67].

  1. [54]
    In this matter, whilst Mr McKay does make reference to the fact that he issued instructions to obtain legal advice, I am not satisfied that the Applicant has established that Mr McKay has put the contents of the otherwise privileged communication in issue.
  1. [55]
    For these reasons, I am satisfied that Mr McKay’s conduct referred to in paragraph 24 of his affidavit is conduct which is consistent with the claim of legal professional privilege.
  1. [56]
    The Applicant’s application with respect to orders for disclosure of the legal advice/s referred to in paragraph 24 of Mr McKay’s affidavit is dismissed.

Briefing Note PM-07

  1. [57]
    The Respondent also claims legal professional privilege over redacted passages from briefing note PM-07.
  1. [58]
    As extracted above, redacted passages appear under the heading ‘Key Issues’ which has been drafted by Mr Gleeson. 
  1. [59]
    Further, redacted passages appear in Mr McKay’s notes of his consideration and decision making which was authored by Mr McKay.
  1. [60]
    Mr McKay’s affidavit[13] states that briefing note PM-07 has been redacted on the basis of legal professional privilege.
  1. [61]
    As discussed, when considering briefing note PM-07, the onus rests with the Respondent to establish that it is entitled to make the claim.
  1. [62]
    Other than the assertion contained in Mr McKay’s affidavit that the briefing note was redacted on the basis of legal professional privilege, no further factual matters have been relied on to assert the claim by the Respondent.
  1. [63]
    There is no evidence that indicates that the matters redacted include a reference to confidential communications for the dominant purpose of either obtaining legal advice or furthering existing or anticipated litigation or for both such purposes.
  1. [64]
    There is no evidence before me that Mr McKay or the Respondent had received the advice the subject of the request for legal advice referred to in paragraph 24 of Mr McKay’s affidavit.
  1. [65]
    A finding that the redacted passages include reference to the legal advice requested by Mr McKay could only, at best, on the evidence before me be made on an indirect inference.
  1. [66]
    I am not satisfied that the Respondent has discharged its onus to establish that the redacted passages in briefing note PM-07 are entitled to the benefit of a claim for legal professional privilege.
  1. [67]
    Further, if I am wrong with respect to this conclusion, I do not consider that Mr McKay’s conduct as outline in paragraphs 26, 27 and 28 of his affidavit are consistent with the maintenance of a claim for privilege.
  1. [68]
    In this regard, Mr McKay identifies the matters that he considered on 16 August 2024 when he determined that he wished to proceed with the finding that the allegations made against the Applicant be substantiated and that the disciplinary penalty of termination of employment be proposed.
  1. [69]
    In addition to the considerations Mr McKay lists at paragraph 26 and 27 of his affidavit that he had regard to in making the determination, Mr McKay also deposes to considering briefing note PM-07 which included his contemporaneous record of his consideration at that time.
  1. [70]
    In making this statement Mr McKay identifies that briefing note PM-07, including the redacted passages, identifies the matters that he had regard to in his consideration and determination.
  1. [71]
    However, by redacting the passages Mr McKay does not disclose all of the matters that he had regard to in his consideration. This has the affect of permitting the Respondent to ‘pick and choose’ what elements of Mr McKay’s consideration is put before the Commission and what elements of Mr McKay’s consideration is concealed from forensic scrutiny. This has the effect of placing the Applicant at a forensic disadvantage and gives rise to unfairness of the type referred to in the authorities referred to above.
  1. [72]
    Consequently, I consider that by its conduct, the Respondent has waived any claim for legal professional privilege with respect to the redacted passages of briefing note PM-07.
  1. [73]
    An order will be made that the Respondent discloses to the Applicant an unredacted copy of briefing note PM-07.

Orders

  1. [74]
    For the reasons set out above I make the following orders:
  1. The Respondent is to disclose to the Applicant an unredacted copy of briefing note PM-06 and briefing note PM-07 by 4pm on 11 November 2024. 
  1. The Applicant’s application with respect to orders for disclosure of the legal advice referred to in paragraph 24 of Mr McKay’s affidavit is dismissed.

Footnotes

[1] Transcript of proceedings dated 5 August 2024, 29, 16-22.

[2] Affidavit of Mr McKay filed on 25 June 2024, 6.

[3] [2016] QCA 325, 4-5.

[4] Ibid, 50.

[5] [2019] QSC 144 [2019] 24 QLR (‘Sanrus’).

[6] Allen (n 5) 69.

[7] Allen (n 5) 70-73.

[8] [2002] FCA 1302, 10 – 12, 17.

[9] Allen (n 5) 51.

[10] Affidavit of Mr Peter McKay filed 25 June 2024, 24.

[11] Sanrus (n 7) 36.

[12] [2016] FCAFC 117, 28.

[13] Affidavit of Mr McKay filed on 25 June 2024, 28.

Close

Editorial Notes

  • Published Case Name:

    Hitchcock v State of Queensland (Office of Industrial Relations)

  • Shortened Case Name:

    Hitchcock v State of Queensland (Office of Industrial Relations)

  • MNC:

    [2024] QIRC 258

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    07 Nov 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Archer Capital 4A Pty Ltd v Sage Group PLC (No 3) (2013) FCA 1160
1 citation
Jump To
Cite 1 - (2013) FCA 1160
Attorney-General ( N.T.) v Maurice (1986) 161 CLR 475
1 citation
Jump To
Cite 1 - (1986) 161 CLR 475
Attorney-General (NT) v Maurice [1986] HCA 80
1 citation
Jump To
Cite 1 - [1986] HCA 80
Australia Pty Ltd v Nyran Pty Ltd [2002] FCA 1302
2 citations
Jump To
Cite 1 - [2002] FCA 1302
Cite 2 - [2002] FCA 1302
Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341
1 citation
Jump To
Cite 1 - (2006) 151 FCR 341
Ferella v Official Trustee in Bankruptcy (2010) 188 FCR 68
3 citations
Jump To
Cite 1 - (2010) 188 FCR 68
Cite 2 - (2010) 188 FCR 68
Cite 3 - (2010) 188 FCR 68
Goldberg v Ng (1995) 185 CLR 83
1 citation
Jump To
Cite 1 - (1995) 185 CLR 83
Goldberg v Ng [1995] HCA 39
1 citation
Jump To
Cite 1 - [1995] HCA 39
Hongkong Bank of Australia Ltd v Murphy (1993) 2 VR 419
1 citation
Jump To
Cite 1 - (1993) 2 VR 419
Macquarie Bank Limited v Arup Pty Limited [2016] FCAFC 117
3 citations
Jump To
Cite 1 - [2016] FCAFC 117
Cite 2 - [2016] FCAFC 117
Cite 3 - [2016] FCAFC 117
Pickering v Edmunds (1994) 63 SASR 357
1 citation
Jump To
Cite 1 - (1994) 63 SASR 357
Queensland Local Government Superannuation Board v Allen [2016] QCA 325
3 citations
Jump To
Cite 1 - [2016] QCA 325
Cite 2 - [2016] QCA 325
Cite 3 - [2016] QCA 325
Sanrus Pty Ltd v Monto Coal 2 Pty Ltd [2019] QSC 144
2 citations
Jump To
Cite 1 - [2019] QSC 144
Cite 2 - [2019] QSC 144
Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118
1 citation
Jump To
Cite 1 - [2018] VSCA 118

Cases Citing

Case NameFull CitationFrequency
Hitchcock v State of Queensland (Office of Industrial Relations) (No. 2) [2024] QIRC 2592 citations
Hitchcock v State of Queensland (Office of Industrial Relations) (No. 3) [2024] QIRC 2602 citations
Hitchcock v State of Queensland (Office of Industrial Relations) (No. 5) [2024] QIRC 2762 citations
Hitchcock v State of Queensland (Office of Industrial Relations); State of Queensland (Office of Industrial Relations) v Hitchcock [2025] ICQ 32 citations
Hitchcock v State of Queensland (Office of Industrial Relations); State of Queensland (Office of Industrial Relations) v Hitchcock (No 2) [2025] ICQ 122 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.