1
Fair Work Act 2009
s.604 - Appeal of decisions
Mark Kirkman
v
DP World Melbourne Limited
(C2015/2751)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT KOVACIC
COMMISSIONER JOHNS SYDNEY, 25 JUNE 2015
Appeal against decision [[2015] FWC 2563] of Commissioner Bissett at Melbourne on 17
April 2015 in matter number U2014/16067.
Introduction
[1] Mr Mark Kirkman has filed a notice of appeal in which he seeks permission to appeal
and appeals a decision issued by Commissioner Bissett on 17 April 20151 (Decision). The
Decision was made in connection with an unfair dismissal remedy application which Mr
Kirkman has made against the respondent, DP World Melbourne Limited (DP World) under
s.394 of the Fair Work Act 2009 (FW Act). In relation to that application the Commission
issued an order that DP World produce certain documents in an unredacted form. Upon
certain documents being produced to the Commission (subject in one case to a claim of legal
professional privilege), DP World objected to Mr Kirkman being granted access to them. The
Decision concerned that issue.
[2] The order for production required three categories of documents to be produced in
unredacted form. The question of access arose in respect of categories 1 and 3 of the
documents. They were identified in the orders as follows:
“1. All ‘Complaints Documents’ including but not limited to:
a. ‘Record of Discussion with Stephen Zwartz’ 15 May 2014
b. ‘Statement of Complaint Stephen Zwartz’ 27 May 2014
c. ‘Annette Coombe Record of Concerns and Next Steps’
that were the basis for the decision to terminate Mr Kirkman.
…
1 [2015] FWC 2563
[2015] FWCFB 3995
DECISION
AUSTRALIA FairWork Commission
[2015] FWCFB 3995
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3. Any investigation report compiled by David Gunzburg of DGHR Services or
any other person that relates to the decision to terminate Mr Kirkman’s employment
and any other reasonably related documents.”
[3] The Complaints Documents were records of the complaints made about the conduct of
Mr Kirkman and some other employees of DP World by Mr Zwartz and Ms Coombe. They
had previously been provided in a heavily redacted form. The only text not redacted, apart
from formal parts, concerned information received about alleged conduct on the part of Mr
Kirkman. DP World contended that Mr Kirkman should not be given access to the
Complaints Documents in unredacted form since this would disclose to him allegations of a
confidential nature concerning the conduct of other employees which was not relevant to Mr
Kirkman’s unfair dismissal remedy application.
[4] In relation to the Complaints Documents, the Commissioner determined as follows:
“[12] I have viewed the documents produced by DP World in accordance with the
Order. I have also viewed the redacted documents already supplied by DP World to Mr
Kirkman. I am satisfied that all matters in the complaints documents related to Mr
Kirkman have been disclosed in the redacted documents. I am satisfied that, of the
documents sought to be inspected by Mr Kirkman, none relate to the termination of his
employment beyond the materials already provided to him. Further, I am satisfied that
none are relevant to the unfair dismissal application before the Commission.
[13] Whilst it is true that I could deal with the confidentiality of the contents of the
documents through an order or some other regime of confidentiality and inspection I
see no need to consider such a course of action given my decision as to relevance.
[14] The unredacted ‘complaints documents’ will therefore not be made available for
inspection.”
[5] In answer to category 3 of the order, DP World produced the investigation report
prepared by Mr Gunzburg of DGHR Services (Investigation Report), subject to its claim of
legal professional privilege. The material before the Commissioner disclosed that the
Investigation Report had been commissioned in mid-2014 to investigate the complaints made
about Mr Kirkman and others - complaints which had led to anti-bullying proceedings being
initiated by the complainants under Part 6-4B of the FW Act. By a letter dated 18 June 2014,
DP World required Mr Kirkman to attend a disciplinary interview with Mr Gunzburg for the
purpose of the investigation. Subsequent to the completion of the Investigation Report, Mr
Kirkman was required by DP World to attend a disciplinary meeting. The letter
communicating that requirement, which was dated 3 December 2014, identified the time and
date (4 December 2014) of the meeting, and went on to state (emphasis added):
“At the meeting you will be provided the opportunity to respond to the following
allegations of inappropriate behaviour which were substantiated in the investigation
conducted by DGHR Services: ...”
[6] The letter went on to identify three instances of alleged inappropriate behaviour, and
then identified that as a consequence it was alleged that Mr Kirkman had breached DP
World’s Discrimination, Harassment, Bullying and Freedom of Association Policy, its Code
[2015] FWCFB 3995
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of Conduct, Mr Kirkman’s contract of employment and the applicable enterprise agreement.
The letter then stated:
“Due to the seriousness of these allegations we advise that we will be considering
disciplinary action which may include consideration of your ongoing employment at
this meeting.”
[7] There is no dispute that the reference in the letter to the “investigation conducted by
DGHR Services” is a reference to the Investigation Report. Mr Kirkman was dismissed
shortly after the disciplinary interview, on 9 December 2014.
[8] On the question of whether Mr Kirkman should have access to the Investigation
Report, the Commissioner determined as follows:
“[22] Having heard from the parties I required DP World to produce the Gunzburg
report. Having received and considered the report I am satisfied that it is not a report
relating to the decision to terminate Mr Kirkman’s employment and no inspection of it
is warranted. It is a report of some breadth. On the submissions of DP World it gave
rise to the decision to conduct an internal investigation which ultimately led to the
decision to terminate Mr Kirkman’s employment. While it is a report that predates the
decision to terminate Mr Kirkman’s employment and mentions Mr Kirkman that does
not make it a report which relates to the decision to terminate his employment.
[23] The Gunzburg report is not the reason for or the basis upon which the decision to
terminate Mr Kirkman’s employment was made.
[24] I am satisfied that the report is not relevant to the matter to be decided by the
Commission in the application for unfair dismissal.”
[9] Having regard to her determination as to the relevance of the Investigation Report, the
Commissioner did not make a final ruling on the claim of privilege, but did state a provisional
view as follows:
“[25] As to the question of litigation privilege I am satisfied that Mr Gunzburg was
engaged by DP World’s lawyers (despite the wording of letter from DP World). I am
also satisfied that the Gunzburg report was for the purpose of the provision of legal
advice. That the report was prepared by a non-legally qualified person it seems to me
is not to the point. It is the purpose of the report that is relevant. However, given my
decision as to relevance I do not need to definitively determine the question of
privilege.”
[10] Mr Kirkman submits that the Decision was attended by appealable error in a number
of respects. In relation to the Complaints Documents, Mr Kirkman alleged appealable error
primarily on two bases:
(1) The documents had apparent relevance to the assessment of the validity and
seriousness of the allegations on which DP World acted in terminating Mr
Kirkman’s employment. Mr Kirkman was entitled to inspect the documents to
ensure that the redacted portions did not contain further material relevant to the
allegations made against him, particularly as the complaints disclosed in the
[2015] FWCFB 3995
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unredacted portions of the documents represented only a portion of the matters
which caused him to be dismissed.
(2) In circumstances where other employees the subject of the complaints had not
been dismissed, the documents had apparent relevance to an assessment of any
differential treatment of Mr Kirkman compared to the other employees.
[11] In relation to the Investigation Report, Mr Kirkman submitted that it had apparent
relevance to his application because the allegations of inappropriate behaviour which were put
to him at the commencement of the disciplinary process and then relied upon in the decision
to terminate his employment were said to be substantiated by the Investigation Report. He
also submitted that it had relevance to any assessment of differential treatment. It was further
submitted that, to the extent that the Commissioner found that the Investigation Report was
covered by legal professional privilege, the Commissioner erred.
Consideration
[12] Under s.604(1), an appeal lies to a Full Bench only with permission. In relation to such
permission, s.604(2) provides: “Without limiting when the FWC may grant permission, the
FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.”
The effect of this provision is that permission must be granted if it is in the public interest to
do so, but may otherwise be granted on discretionary grounds.
[13] Section 400(1) modifies s.604(2) in relation to a certain category of decisions. It
provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a
decision made by the FWC under this Part unless the FWC considers that it is in the
public interest to do so.
[14] “This Part” refers to Part 3-2 of the FW Act, which is concerned with unfair dismissal.
If s.400(1) applies, the public interest is the sole criterion for the grant or refusal of
permission to appeal. If the Full Bench does not consider that it is in the public interest to
grant permission to appeal, it must refuse such permission. It is not available to grant
permission on discretionary grounds.
[15] The parties were at odds as to whether the Decision was one to which s.400(1)
applied. This contest arose because the Decision was made in exercise of procedural powers
which are located in Part 5-1 of the FW Act. In respect of this issue, we propose to take the
same course as that taken by the Full Bench in Clermont Coal Pty Ltd v Brown2 (which was
also an appeal against a decision concerning an order for production of documents in relation
to an unfair dismissal remedy application). In the matter the Full Bench said:
“[12] In this case, the decisions and orders the subject of the appeal were made in
relation to applications made under Part 3-2, but involved the exercise of general
powers in s.590(2), which lies outside of Part 3-2. The parties were at odds in that
circumstance as to whether s.400(1) applied to the appeal: the appellants submitted that
it did not, but the respondents submitted that it did.
2 [2015] FWCFB 2460
[2015] FWCFB 3995
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[13] In Australian Postal Corporation v Gorman3 the Federal Court (Besanko J) gave
consideration as to whether, in an appeal from an order dismissing an unfair dismissal
application under s.587 of the FW Act, s.400(1) applied. The Court said:
‘[37] The question of whether there was or was not a binding settlement
agreement is a question of fact, although no doubt informed by legal principles.
In this case in considering whether permission to appeal should be granted and
in considering the appeal itself the Full Bench was required to apply s 400 of
the Act. I did not understand the first respondent to contend otherwise. It seems
to me that the Senior Deputy President’s decision was a decision made ‘under
this Part’ within subsection 400(1) and a decision ‘in relation to a matter
arising under this Part’ within subsection 400(2) despite the fact that s 587 is in
Part 5-1 of the Act. The Senior Deputy President’s decision was a decision to
dismiss the first respondent’s application made under s 394 for a remedy for
unfair dismissal. That is a decision under Chapter 3 Part 3-2 in the same way as
an order for re-instatement or compensation would be a decision under that
Part. Even if FWA’s general power to dismiss is contained in subsection
587(3), it is part of FWA’s powers when it makes a decision under Chapter 3
Part 3-2. The same reasoning applies if regard is had not to the order but to the
ground upon which the order was made, that is, that the continued pursuit of
the application is frivolous or vexatious.’
[14] Consistent with the Court’s conclusion, we shall approach the appeal on the basis
that s.400(1) applies. However, for more abundant caution, we will alternatively state
the conclusion we would reach if s.400(1) did not apply.”
[16] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v
Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised
the test under s.400 as “a stringent one”.4 The task of assessing whether the public interest test
is met is a discretionary one involving a broad value judgment5. In GlaxoSmithKline Australia
Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that
may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive, or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters.”6
[17] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence
3 [2011] FCA 975
4 (2011) 192 FCR 78 at [43]
5 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
6 [2010] FWAFB 5343 at [27], 197 IR 266
[2015] FWCFB 3995
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of appealable error.7 However, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.8
[18] We do not consider that Mr Kirkman has demonstrated an arguable case of appealable
error in relation to the Complaints Documents. In relation to Mr Kirkman’s first argument, in
circumstances where the Commissioner has herself inspected the Complaints Documents and
satisfied herself that the redacted portions do not relate to complaints against Mr Kirkman, we
see no reason to “second guess” this assessment and allow Mr Kirkman access to the
documents merely for the purpose of confirming that the Commissioner’s assessment was a
correct one. On the basis of the redaction of the Complaints Documents by DP World and the
Commissioner’s own assessment of the appropriateness of that redaction, we consider that Mr
Kirkman would be fully entitled to submit at the hearing of his unfair dismissal remedy
application that the only complaints against him recorded in the Complaints Documents are
those contained in the unredacted portions, and that DP World would not be entitled to
contradict him on this issue.
[19] In relation to Mr Kirkman’s second argument, it is apparent to us that he seeks access
to the Complaints Documents not for the purpose of obtaining documents to support a case of
differential treatment which he otherwise intends to advance, but rather to explore if there is
any basis upon which he could advance a case of differential treatment of which he is
currently unaware. That makes it an impermissible “fishing expedition”.
[20] Because no arguable case of appealable error has been established in respect of the
Commissioner’s determination concerning the Complaints Documents, we are not satisfied
that it is in the public interest to grant permission to appeal, and under s.400(1) we would
therefore have to refuse permission to appeal in relation to the Complaints Documents.
Alternatively, if s.400(1) does not apply, we do not in any event consider that the grant of
permission to appeal in relation to the Complaints Documents is warranted.
[21] We have reached a different conclusion in relation to the Investigation Report. We do
not consider that the Commissioner applied the correct test of relevance for the purpose of this
aspect of the Decision. As was stated by the Full Bench in Clermont Coal Pty Ltd v Brown9,
the test is whether the documents sought have an apparent relevance to the issues in the
proceedings. It was not necessary to find a direct causal link between the Investigation Report
and DP World’s decision to dismiss Mr Kirkman in order for him to be granted access to the
Investigation Report. In circumstances where the Investigation Report dealt, among other
things, with allegations made against Mr Kirkman, where Mr Kirkman was required to be
interviewed for the purpose of the preparation of the Investigation Report, and where the
conclusions of the Investigation Report were the foundation for the disciplinary meeting with
Mr Kirkman which led directly to his dismissal, the conclusion that the Investigation Report
has apparent relevance to Mr Kirkman’s unfair dismissal case is unavoidable. Even on the
narrower test posited by the Commissioner, it is reasonably apparent that there was a direct
causal connection between the Investigation Report, the initiation of a disciplinary process
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on
judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett
McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
9 [2015] FWCFB 2460 at [19]
[2015] FWCFB 3995
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against Mr Kirkman and the dismissal. Mr Kirkman was therefore entitled, subject to DP
World’s claim of legal professional privilege, to have access to the Investigation Report,
although we consider that DP World would be entitled to redact it to exclude the material
going to the investigation of complaints against employees other than Mr Kirkman.
[22] Because the Decision in relation to the Investigation Report involved the application
of an incorrect principle, we consider that the public interest is attracted such as to require the
grant of permission to appeal (noting that this is the case whether s.400(1) applies or not). We
uphold the appeal in relation to the Investigation Report.
[23] Because the Commissioner found it unnecessary to determine to finality DP World’s
claim of legal professional privilege over the Investigation Report, that claim remains to be
dealt with. We do not consider that the factual material before us is sufficient for us to
determine whether the claim of privilege can be sustained, so we will remit this issue to a
member of this Full Bench for final determination. In doing so we propose however to make
some observations about this issue which may guide its final determination. First, although
the rules of evidence do not apply to the Commission (see s.591), legal professional privilege
has been held to be not merely a rule of evidence but a substantive doctrine of the common
law applicable to administrative tribunals such as this Commission unless expressly excluded
by statute.10 There is no provision of the FW Act which excludes the operation of the doctrine
of legal professional privilege in relation to proceedings before this Commission.
[24] Second, DP World’s claim of privilege must be supported by evidence which
establishes the necessary elements of the claim.11
[25] Third, in relation to DP World’s primary claim of litigation privilege, it is a necessary
element of that limb of the privilege (as codified in s.119 of the Evidence Act 1995 (Cth)) that
the document in relation to which privilege is claimed was prepared “for the dominant
purpose of the client being provided with professional legal services relating to an Australian
or overseas proceeding (including the proceeding before the court), or an anticipated or
pending Australian or overseas proceeding, in which the client is or may be, or was or might
have been, a party”. We note that the Commissioner, in provisionally concluding that the
application of litigation privilege to the Investigation Report had been established, did not
make any finding that this element of the privilege had been established. We would also note
that the basis upon which a secondary provisional finding of the application of legal advice
privilege was not identified.
[26] Finally, we consider it to be likely, as a result of DP World’s requirement that Mr
Kirkman be interviewed for the purpose of the preparation of the Investigation Report and its
reliance upon the conclusions of the Investigation Report in initiating a disciplinary process
against him, that the issue of waiver of privilege will need to be given serious consideration.
In this connection we note the significant analogy between the facts of this case and those
considered in the Full Bench decision in Brown v BlueScope Steel Limited12 (in which
privilege was held to have been waived).
10 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; Re Postal Delivery Officers
Union (1999) 94 IR 380
11 Grant v Downs (1976) 135 CLR 674 at 689; National Crime Authority v S (1991) 29 FCR 203 at 211
12 PR964604 [2005] AIRC 955
http://www5.austlii.edu.au/au/legis/cth/consol_act/ea199580/s117.html#party
http://www5.austlii.edu.au/au/legis/cth/consol_act/ea199580/s117.html#client
http://www5.austlii.edu.au/au/legis/cth/consol_act/ea199580/s117.html#client
[2015] FWCFB 3995
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[27] We order as follows:
(1) Permission to appeal is granted insofar as the appeal concerns the Investigation
Report, but is otherwise refused.
(2) The appeal is upheld in relation to the Investigation Report.
(3) Paragraphs [16]-[25] of the Decision are quashed.
(4) DP World’s claim of legal professional privilege in relation to the Investigation
Report is remitted to Deputy President Kovacic for determination.
VICE PRESIDENT
Appearances:
F. Knowles of counsel for Mark Kirkman.
E. Hawthorne solicitor for DP World Melbourne Limited.
Hearing details:
2015.
Sydney:
17 June.
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