[2016] FWC 605

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Kirkman
v
DP World Melbourne Limited
(U2014/16067)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 29 JANUARY 2016

Application for relief from unfair dismissal – claim of legal professional privilege upheld save for one attachment to a document and two documents held to be outside the scope of the Order to produce issued by the Commission on 11 March 2015 – privilege not waived in respect of remaining documents – request for access to remaining documents denied.

[1] On 17 April 2015 Mr Mark Kirkman filed a notice of appeal against a decision issued by Commissioner Bissett 1. The Commissioner’s decision was made in connection with an unfair dismissal application which Mr Kirkman had made against DP World Melbourne Ltd (DP World - the Respondent) under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Kirkman’s appeal concerned, among other things, the Commissioner’s decision to deny Mr Kirkman access to a report prepared by Mr David Gunzburg of DGHR Services (the Report) and several associated documents (together referred to as the Documents) on the basis that the Documents were not relevant to Mr Kirkman’s unfair dismissal application. DP World objected to the release of the Documents claiming legal professional privilege (privilege).

[3] Mr Kirkman’s appeal was heard by a Full Bench on 17 June 2015. In its decision 2 handed down on 25 June 2015 the Full Bench granted Mr Kirkman permission to appeal insofar as his appeal concerned the Documents, upheld his appeal regarding the Documents, quashed the relevant aspects of the Commissioner’s decision and remitted DP World’s claim of privilege in relation to the Documents to me for determination.

[4] The privilege issue was heard on 18 September 2015. At the hearing, Ms Erin Hawthorne appeared with permission for DP World and Ms Fiona Knowles of Counsel appeared for Mr Kirkman. Witness statements were provided by Mr Kristian Bolwell 3, Senior National Legal Officer for the Maritime Union of Australia (MUA), on behalf of Mr Kirkman and Ms Hawthorne4 on behalf of DP World. Neither witness was required for cross examination.

[5] For the reasons set out below, I have determined that the Documents, other than the copy of the Federal Court of Australia’s Practice Note CM7 – Expert Witnesses in Proceedings in the Federal Court of Australia attached to the email of 5 June 2014 and the documents dated 27 and 28 February 2015 both of which I consider to fall outside the scope of the Order to produce issued by the Commission on 11 March 2015, are protected by privilege and that privilege has not been waived in respect of the remaining documents.

DP World’s case

[6] DP World objected to the production of any orders for access to the Documents on the basis that they contain communications subject to legal privilege at common law and subject to ss.118 and 119 of the Evidence Act 1995 (Cth) (the Evidence Act). DP World further asserted that the Documents do not fall within the scope of the order made by the Commission for the production of certain documents.

[7] DP World submitted that in the event the Commission considers that the Documents do fall within the scope of the order and are not subject to privilege, that no order for access should be made on the basis that the investigation which related to and resulted in the decision to terminate Mr Kirkman’s employment was DP World’s internal investigation and disciplinary process, not the investigation undertaken by Mr Gunzburg.

[8] In its submissions DP World dealt with the operation of privilege under both common law and the Evidence Act. With specific regard to the Documents, DP World asserted privilege on a number of bases including:

the Documents all came into existence at a time that anti-bullying proceedings initiated by Ms Sharon Bowker, Ms Annette Coombe and Mr Stephen Zwarts were on foot;

DP World’s legal advisers, Seyfarth Shaw Australia, engaged Mr Gunzburg to prepare a factual report into various confidential allegations of bullying conduct made by Ms Bowker, Ms Coombe and Mr Zwarts, including the allegations regarding Mr Kirkman’s conduct; and

the documents prepared by Mr Gunzburg were provided directly to Seyfarth Shaw Australia.

[9] DP World also pointed to the decisions 5 of Deputy President Gostencnik in the context of the anti-bullying proceedings concerning an application by Ms Bowker, Ms Coombe and Mr Zwarts seeking access to the Report and associated documents. In those decisions the Deputy President denied access to the Report and associated documents on the basis that they were subject to privilege and that privilege had not been waived.

[10] On the issue of scope, DP World submitted the fact that the Report included allegations against Mr Kirkman does not make it a report which relates to the decision to terminate his employment. In support of that contention, DP World highlighted, among other things, that:

Mr Gunzburg’s investigation occurred some six months prior to DP World’s internal disciplinary process which resulted in Mr Kirkman’s dismissal; and

it was apparent from the face of the Report that it was not a report which related to DP World’s decision to terminate Mr Kirkman’s employment.

[11] Finally, DP World contended that, were the Commission to determine that the Documents have apparent relevance, it should proceed to balance the reasonableness of any burden on DP World with the public interest in the due administration of justice to determine whether access is to be granted. In this regard, DP World submitted that:

the Documents were manifestly confidential documents, created for the purpose of DP World considering and seeking advice on the complaints of Ms Bowker and Ms Coombe which had been made to it on a confidential basis under its policy and in the context of litigation; and

this was not a case in which the Documents were required to be disclosed so that Mr Kirkman may understand the nature of the allegations of misconduct put against him as the substance of the allegations were provided to him in writing in the course of DP World’s internal investigation into these matters for the purpose of his response.

[12] In her witness statement, Ms Hawthorne highlighted that Ms Bowker, Ms Coombe and Mr Zwarts all filed applications with the Commission seeking orders to stop bullying between 27 and 29 May 2014. Ms Hawthorne also outlined the exchange of correspondence between the MUA, Maurice Blackburn acting for Mr Kirkman and DP World over the period 12 June to 19 June 2014. Extracts from some of the correspondence sent by DP World to the MUA attached to Ms Hawthorne’s witness statement are set out below.

[13] On 13 June 2014, Mr Mark Hulme, Chief Operating Officer for DP World Australia, wrote to Mr Bolwell stating, inter alia, that:

“As you are aware DP World Melbourne has arranged an independent investigator as we have been notified of certain conduct alleged to have occurred at work under the terms of its Discrimination, Harassment, Bullying and Freedom of Association Policy.

… The purpose of the investigation is to conduct a factual investigation to make findings about what has occurred and what (if any) alleged conduct is substantiated.

…

DP World will consider the issues identified during the investigation and review what further steps (if any) are appropriate. If, following the investigation, DP World considers that disciplinary action may be warranted in respect of any particular Employees, the specific allegations will be identified at that stage and they will have an appropriate opportunity to provide a response.” 6

[14] Mr Hulme wrote to Mr Bolwell again on 17 June 2014 stating:

“We reaffirm that an investigator has been engaged to investigate allegations that have been made, we are acting under our Policy. …

As set out in my letter of 13 June 2014 this is a factual investigation only and DP World will consider the issues identified during the investigation and review what further steps (if any) are appropriate. If, following the investigation, DP World considers that disciplinary action may be warranted in respect of any particular employees the specific allegations will be identified at that stage and they will have an opportunity to provide a response.” 7

[15] Also attached to Ms Hawthorne’s witness statement was a file note produced by the MUA regarding the 30 June 2014 meeting between Mr Gunzburg and Mr Kirkman. The file note indicated that Mr Gunzburg opened the meeting with a general introduction. Specifically, the file note stated:

“DG:

Gave a general introduction:

Explaining that DGHR Services has been engaged by Seyfarth Shaw law firm which is acting for DP World. DG said he is a person of human resources background and is not a lawyer and he is investigating complaints made by Ms Annette Coombe and Ms Sharon Bowker.

He will prepare a factual report on the basis of his investigation, the report will not contain recommendations and while he has been appointed on behalf of DP World he is not advocating a particular outcome.

…

DG acknowledged that there were other proceedings, such as in the Fair Work Commission, which are separate and his investigation is not for those other matters although there is some overlap.” 8

[16] At the hearing DP World submitted that:

the Documents themselves are the best evidence of what the purpose of their creation was, with the question being what was the purpose at the time they were created 9;

the Documents were brought into existence for the purpose of Seyfarth Shaw obtaining [sic providing] legal advice in the context of the anti-bullying litigation 10;

with regard to the letter of 18 June 2014 from DP World to Mr Kirkman (discussed below), there is some language in the letter which is perhaps a little bit loose in terms of who engaged the investigator but that the letter needs to be read in the context of the other correspondence that was being exchanged at the time 11;

the question of dominant purpose should be viewed through the correspondence that was exchanged between DP World’s lawyers and Mr Gunzburg 12; and

as to the issue of waiver, the question was whether considering all the circumstances there had been a disclosure which was inconsistent with the maintenance of privilege, adding that one needs to look at the purpose of the disclosure and the context in which it occurred and that the letter of 3 December 2014 (see below) simply commenced DP World’s internal disciplinary process 13.

[17] In its submissions, DP World referred to a number of authorities including Grant v Downs 14, Pratt Holdings Pty Ltd v Commissioner of Taxation15 and Osland v Secretary, Department of Justice16. DP World also submitted that the circumstances in BlueScope Steel Limited v W. Brown17 (Brown) were not analogous to those existing in this case, adding that unlike the scenario in Brown, having regard to the totality of the communications, there is not the same requisite unfairness in this case.

Mr Kirkman’s case

[18] Mr Kirkman submitted that the issue of scope and apparent relevance of the Documents were ventilated during the appeal proceedings, with the only issue remitted for determination being DP World’s claim of privilege over the Documents.

[19] In his submissions, Mr Kirkman outlined the principles applying regarding evidence in support of establishing the elements of a claim to privilege as follows:

it is for the party claiming privilege to show that the documents for which the claim is made are privileged;

this may be achieved by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence;

this must establish, relevantly, that the dominant purpose of preparing the documents was for the client being provided with professional legal services relating to a proceeding or anticipated proceeding or for legal advice;

the claimant must do more than merely assert a claim for privilege, the claimant must rely on facts to support the claim for privilege; and

an affidavit making a claim for privilege is often a sufficient evidentiary basis, subject to such a claim being able to be tested, for example, by deponent being questioned by the tribunal and by cross examination.

[20] Mr Kirkman submitted that no evidentiary material had been filed in support of the claim for privilege and that DP World had not discharged its onus to support an evidentiary basis for privilege. As to DP World’s claim of litigation privilege, Mr Kirkman submitted that the key issue is whether the Report was prepared for the dominant purpose of DP World being provided with legal services relating to legal proceedings, whether actual, anticipated or pending.

[21] Mr Kirkman further submitted that the dominant purpose test had been held to provide that if the decision to bring the document into existence would have been made irrespective of any intention to obtain legal advice it is doubtful whether the purpose of obtaining legal advice could be regarded as the dominant purpose for the making of the document. Based on the letter from DP World of 18 June 2014 to him, Mr Kirkman contended that the Report would have been prepared irrespective of any intention to obtain legal professional services and irrespective of the anti-bullying proceedings. Similarly, Mr Kirkman contended that the apparent purpose of the Report was not for Seyfarth Shaw to provide legal advice to DP World, but rather it was for DP World to put factual findings to Mr Kirkman.

[22] In the alternative, Mr Kirkman contended that privilege had been waived in this case as a result of DP World’s conduct in this matter. In support of that contention, Mr Kirkman referred to s.122 of the Evidence Act which provides that legal professional privilege is lost if the client knowingly and voluntarily discloses the substance of the evidence or this has been disclosed with the express implied consent of the client. More specifically, Mr Kirkman submitted that Mr Gunzburg by putting the complaint allegations to him in the meeting of 30 June 2014 and DP World disclosing the contents of the Report in its disciplinary meeting letter of 3 December 2014 which stated “allegations of inappropriate behaviour … was substantiated in the investigation conducted by DGHR Services”, were inconsistent with the maintenance of confidentiality and indicates that any privilege would be imputed to be waived.

[23] As previously noted, Mr Bolwell provided a witness statement on behalf of Mr Kirkman. Attached to his witness statement was a letter of 18 June 2014 from Ms Sheryl Pastro, DP World’s Human Resources Manager, requiring Mr Kirkman to attend an interview with Mr Gunzburg on 30 June 2014. The letter stated:

“DP World has recently received a complaint about inappropriate workplace behaviour. The Company has appointed an independent investigator – David Gunzburg of DGHR Services – to investigate the complaint fully.

…

It is important you understand that at this stage DP World is not accusing you of anything, but has asked the independent investigator to gather the facts and provide an assessment.” 18

[24] In his oral submissions, Mr Kirkman emphasised that there was nothing in any of the letters referred to above which indicated that the purpose of commissioning the investigation by Mr Gunzburg was an intention to get legal advice, adding that it was almost immaterial that the investigation was commissioned through the device of a law firm acting as an intermediary. As to the issue of waiver, Mr Kirkman contended that DP World’s letter to him of 3 December 2014, which indicated that the allegations investigated by DGHR Services had been substantiated, had disclosed the substance and content of the Report. Relying on the decision in Brown, Mr Kirkman submitted if in fact the dominant purpose of Mr Gunzburg’s investigation was the provision of legal advice to DP World that he was not informed of that. Finally, Mr Kirkman submitted that, if he was successful on the issue of privilege, he was entitled to a copy of the Report subject to any appropriate redaction.

[25] By way of background, the 3 December 2014 letter referred to above is a letter from DP World to Mr Kirkman requiring him to attend a disciplinary meeting the following day. The letter which was produced as a result of the Order to produce states among other things:

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:

On around 13 January 2014 you said to your colleague Stephen Zwarts words to the effect that Annette Coombe “had her own agenda” and that “all she wants is a permanent EC job”. You are also alleged to have said words to the effect that Annette Coombe had “dragged Sharon [Bowker] in”.

On or around 13 January 2014 you said to your colleague Stephen Zwarts words to the effect that he had done the wrong thing by dropping out of the union.

On 19 January 2014 when Annette Coombe confronted you about what you had said about her to Stephen Zwarts, you yelled at her words to the effect “even blind Freddy can see what you are doing… you want an EC job” and that you were “not going to cop that”.

These incidents demonstrate your deliberate targeting of your colleague and it can.” 19

The Documents

[26] The Documents were provided to the Commission by Seyfarth Shaw for the Commission’s perusal and comprise fourteen emails which were sent over the period 3 June 2014 to 28 February 2015, all of which were email correspondence between Seyfarth Shaw and Mr Gunzburg. DP World was only copied in on one of those emails, an email from Mr Gunzburg to Ms Hawthorne primarily enquiring as to the existence of CCTV footage relating two of the incidents he was investigating. Attached to one of those emails, an email dated 5 June 2014, was a copy of the Federal Court of Australia’s Practice Note CM7 – Expert Witnesses in Proceedings in the Federal Court of Australia, a document which is publicly available via the Court’s website. I do not consider that a claim that the Practice Note is covered by privilege can be made out. Accordingly, a copy of that document will be made available for inspection by Mr Kirkman or his representative upon application. Further, two of the emails, i.e. those dated 27 and 28 February 2015, were created after Mr Kirkman had been dismissed and are the same document. The other twelve emails cover the period 3 June to 31 July 2014. On that basis I consider that the two February 2015 documents do not come within the scope of Item 3 of the Order to produce issued by the Commission on 11 March 2015, i.e. “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.”

[27] Of particular relevance to the issue of privilege are the following.

(i) the letter of engagement sent by Seyfarth Shaw to Mr Gunzburg on 3 June 2014 as an attachment to an email of the same date clearly indicates that the purpose of his investigation and report is to assist it in the preparation of advice to its client, DP World; and

(ii) Mr Gunzburg’s final report emailed to Seyfarth Shaw on 9 July 2014 is marked privileged and confidential.

[28] For reasons of completeness, I note that the bundle of documents provided to the Commissioner comprised eight documents only. That bundle of documents was also comprised entirely of emails between Seyfarth Shaw and Mr Gunzburg, with the emails spanning the period 3 June 2014 to 27 February 2015 (the penultimate email was dated 31 July 2014). In providing the documents to the Commissioner, privilege was not claimed over the 27 February 2015 email, though it was highlighted as a document that did not exist at the time Mr Kirkman was dismissed and was therefore not a report which related to DP World’s decision to dismiss Mr Kirkman. For the reasons outlined above, I do not consider the 27 February 2015 email to come within the scope of the Order to produce.

Consideration

[29] Dealing with the issue of scope first, it is clear from the following extract from the Full Bench’s decision regarding Mr Kirkman’s appeal that the Full Bench considered the Documents to come within the scope of the order.

“[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 Brown, 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 had 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 against Mr Kirkman and the dismissal. Mr Kirkman was therefore entitled, subject to DP World’s claim of legal professional privilege, to 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.” (Citations not included, underlining added)

[30] Accordingly, other than as determined at paragraph [26] above in respect of two of the fourteen documents, I do not need to determine the issue of scope.

[31] Drawing on the decision in The Commissioner of Taxation of the Commonwealth of Australia v Pratt Holdings Pty Ltd 20 (Pratt), Deputy President Gostencnik noted in his reasons for decision21 regarding the application by Ms Bowker, Ms Coombe and Mr Zwarts seeking access to the Report and associated documents that:

“[24] The assessment of whether documents in relation to which a claim for legal professional privilege or client legal privilege is made is a question of fact to be determined on an objective basis, having regard to the evidence, the nature of the documents or communications and the parties’ submissions. The purpose will ordinarily be that of the maker of the document or communication, but this will not always be the case. The evidence of the intention of the maker of the document or the communications, or of the person who authorised or procured it, is not conclusive of purpose…

[25] The dominant purpose for making or producing the relevant communication or the preparation of the relevant document, is to be determined at the time the communication or document was made or produced.” 22 (Citations not included)

[32] In Pratt, Justice Kenny set out the relevant principles to be relied upon in determining the issue of privilege. Those principles included the following:

“(5) The dominant purpose for the creation of a document is to be determined at the time of its production: compare GSA at 153-154 [32]-[35] per Holmes J and Safeway Stores at 422-423 per Goldberg J. Referring to passages in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (“Propend”) emphasising that the privilege attached to the relevant communications rather than the documents, Goldberg J said, in Safeway Stores at 423:

I do not consider that the emphasis of four of the judges in Propend and the Full Court in Carmody v Mackellar [(1997) 148 ALR 210] detracts from the proposition that the primary relevant inquiry in determining whether a claim for privilege from production on the ground of legal professional privilege should be upheld, is to inquire as to the purpose for which the documents came into existence. However as these cases make clear, that purpose must be for the purpose of communicating information for the giving of legal advice, communicating the legal advice itself or communicating information to be used in existing or apprehended litigation.

If the purpose for the making of a document by a third party is to enable another party to make the communication necessary to obtain the legal advice, then the document is protected by the privilege: see Pratt Holdings at 367-368 [41] per Finn J.

(6) Thus, the fact that a document is provided to solicitors for advice is not determinative of the purpose for which it was created. As Brennan CJ said in Propend at 508:

The test is anchored to the purpose for which the document was brought into existence; the use to which a document is put after it is brought into existence is immaterial.

A document can become privileged from production even if it is a copy of a non-privileged document: Propend at 509 per Brennan CJ, 543-544 per Gaudron J, and 554 per McHugh J. Further, the relevant purpose is that for which the document is brought into existence and not that for which the information is obtained: see National Employers’ Mutual General Insurance Association v Waind (1979) 141 CLR 648 at 654 per Mason J.

(7) The dominant purpose is not the same as the “primary” or the “substantial” purpose: see Grant v Downs at 678 per Barwick CJ. The “dominant” purpose may be described as the ruling, prevailing, paramount or most influential purpose: see Mitsubishi Electric at 336-337 [10], citing Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416 per Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ. The “dominant purpose” brings within the scope of the privilege a document brought into existence for the purpose of a client being provided with professional legal services notwithstanding that some ancillary or subsidiary use of the document was contemplated at the time: Esso at 72 [58] per Gleeson CJ, Gaudron and Gummow JJ; Sparnon v Apand at 328 per Branson J; and see GSA at 152-3 [26]-[28] per Holmes J.

(8) Where two purposes are of equal weight, neither is dominant in the relevant sense. Hence:

(a) a document is not privileged from production where one purpose for its creation is to obtain legal advice, but there is another equally important purpose; and
(b) if the decision to bring the document into existence would have been made irrespective of any intention to obtain legal advice, the purpose of obtaining legal advice cannot be the dominant purpose for the making of the document.” 23

[33] The material before the Commission, including the Documents, shows:

Mr Gunzburg was engaged by Seyfarth Shaw for the express purpose of conducting an investigation to assist in the preparation of advice to its client, DP World;

the Report was marked privileged and confidential;

Mr Gunzburg’s communication was exclusively directed to Seyfarth Shaw, with only one email copied to DP World;

the file note prepared by the MUA regarding the meeting of 30 June 2014 between Mr Kirkman and Mr Gunzburg indicates that Mr Gunzburg stated that “DGHR Services has been engaged by Seyfarth Shaw law firm which is acting for DP World” and that his investigation was not for the purposes of other proceedings, such as those before the Commission, though he acknowledged that there was some overlap;

the correspondence between DP World and both the MUA and Mr Kirkman in June 2014 suggests that DGHR Services had been engaged by DP World, with Ms Pastro’s letter of 18 June 2014 stating “The Company has appointed an independent investigator – David Gunzburg of DGHR Services – to investigate the complaint fully”;

Mr Hulme’s letter of 17 June 2014 24 to Mr Bolwell states that DP World will not be providing any details of Mr Gunzburg’s appointment, any report produced by Mr Gunzburg, copies of any communications with Mr Gunzburg and will not disclose any documentation that Mr Gunzburg will consider;

the reasons for DP World’s decision in that regard were not set out in Mr Hulme’s letter, i.e. the letter did not explicitly refer to privilege as the basis for not providing the abovementioned material; and

the Report was provided by Mr Gunzburg to Seyfarth Shaw on 9 July 2014, with some additional material requested by Seyfarth Shaw subsequently provided by Mr Gunzburg over the period 9 to 31 July 2014, i.e. the Report was provided to Seyfarth Shaw almost five months before DP World’s letter of 3 December 2014 requiring Mr Kirkman to attend the disciplinary meeting on 4 December 2014.

[34] Based on that material and drawing on the language in Pratt, it is clear that the dominant purpose at the time the Documents were created was to assist Seyfarth Shaw in the provision of legal advice to DP World. The letter from Seyfarth Shaw to Mr Gunzburg is most compelling in this regard. Further, drawing on the reference in Pratt to the comments of Chief Justice Brennan in the decision in Propend, I note that “the use to which a document is put after it is brought into existence is immaterial.” Taken together, the above analysis supports a finding that the Documents are protected by privilege.

[35] I now turn to consider whether or not privilege has been waived by virtue of the reference to the Report in DP World’s letter of 3 December 2014. As noted by Deputy President Gostencnik at paragraph [32] of his abovementioned decision, the relevant principles relating to the waiver of legal professional privilege were recently set out in Krok v Commissioner of Taxation 25(Krok) as follows:

“In Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [29], the principle of implied waiver was put by the majority of the High Court in the following terms:

Waiver may be expressed or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect... What brings about the waiver is inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

In DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499 at [58] Allsop J (as his Honour the Chief Justice then was) said that an implied waiver will arise 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.

This statement of principle was approved by the Full Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341 (Rio Tinto) at [61]. In that case, the Full Court put the governing principle in the following terms:

These authorities show that, where issue or implied waiver is made out, the privilege holder 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. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication.

Disclosure of the conclusion, gist, substance or effect of legal advice does not necessarily give rise to a waiver of privilege in respect of the whole advice. Whether it does or not in a particular case depends on whether, in the particular context and circumstances of the case, the requisite inconsistency exists between the partial disclosure, on the one hand, and the maintenance of confidentiality in the whole advice on the other: Secretary, Department of Justice v Osland (2007) 26 VAR 425 (Secretary, Department of Justice v Osland) at [49]; approved and upheld by the High Court in Osland v Secretary, Department of Justice (2008) 234 CLR 275 (Osland v Secretary, Department of Justice) at [44]-[50]. The relevant context and circumstances in this respect may include the evident purpose of the disclosure and the legal and practical consequences of limited rather than complete disclosure: Secretary, Department of Justice v Osland at [63]; Osland v Secretary, Department of Justice at [46].

Where a party to litigation discloses or deploys a partial disclosure of legal advice in order to achieve some forensic advantage, while claiming privilege and thereby seeking to deny the other party an opportunity to see the full text of the communication, this may amount to conduct inconsistent with the maintenance of privilege: Secretary, Department of Justice v Osland at [67]; Osland v Secretary, Department of Justice at [35]: British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107; (2011) 195 FCR 123 (British American Tobacco) at [46]-[47].That is no doubt, at least in part, because the judgment as to inconsistency is to be made not only in the context and circumstances of the case, but also in light of any considerations of fairness arising from the context and circumstances: Osland v Secretary, Department of Justice at [45].

Questions of waiver are matters of fact and degree: Nine Films and Television Pty Ltd v Ninox Television Ltd [2005] FCA 356; (2005) 65 IPR 442. Each case will turn on its own facts and circumstances and other cases in which implied waiver has been considered provide limited guidance unless they arise out of similar facts: Rio Tinto at [45].”

[36] In this case both parties referred to the decision in Brown. By way of background, the Full Bench in Brown concluded that “While the true purpose for which Mallesons was engaged was to provide legal advice, by its subsequent conduct BlueScope waived the right to claim privilege in relation to Mallesons’ eventual report.” 26 The circumstances in Brown were that Mr Brown, who had been dismissed by BlueScope, subsequently attended an interview with a solicitor from Mallesons at BlueScope’s request on the understanding that his dismissal would be the subject of an independent review. However, BlueScope had instructed Mallesons to conduct an investigation into Mr Brown’s termination for the purpose of providing advice concerning Mr Brown’s unfair dismissal claim. Specifically, the Full Bench observed:

“Waiver of the privilege will be imputed we are in the courts judgement the clients conduct is inconsistent with the maintenance of confidentiality. In this case representations were made to Mr Brown that he was participating in an “independent enquiry” when in fact BlueScope had retained Mallesons to advise it concerning its prospects in the litigation initiated by Mr Brown. There is a very real difference between an independent inquiry and the provision of legal advice to a client. It is almost inconceivable that Mr Brown, properly advised, would have allowed himself to be interviewed by the legal advisors to the opposing party in his s.170CE application. At the least it is likely he would have sought to have an advisor of some kind attend the interview with him.” 27

[37] Against that background, the Full Bench concluded “that according to ordinary concepts fairness BlueScope’s representations to Mr Brown are inconsistent with the maintenance of confidentiality.” 28

[38] I consider the circumstances in Brown to be different to those existing in this case in that the purpose of Mr Gunzburg’s investigation was not to provide advice regarding legal proceedings which were yet to be initiated by Mr Kirkman against DP World but to conduct an investigation into the allegations made by Ms Bowker and Ms Coombe.

[39] As previously noted, Mr Kirkman submitted that privilege had been waived by Mr Gunzburg by putting the complaint allegations to him in their meeting of 30 June 2014. However, Mr Hulme’s letter of 17 June 2014 to Mr Bolwell stated that “Particulars of the incidents will be discussed verbally in the interviews with the employees.” 29 As mentioned above, that letter also stated that a copy of the Report would not be provided by DP World. Further, s.122(5)(a)(i) of the Evidence Act provides that “A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because the substance of the evidence has been disclosed in the course of making a confidential communication or preparing a confidential document.” In this case, Mr Gunzburg was preparing a confidential report for Seyfarth Shaw. Taken together, these considerations do not support a finding that privilege was waived as a result of the meeting of 30 June 2014 between Mr Gunzburg and Mr Kirkman.

[40] Mr Kirkman further submitted that privilege had been waived by DP World disclosing the contents of the Report in its disciplinary meeting letter of 3 December 2014 which stated “allegations of inappropriate behaviour … was substantiated in the investigation conducted by DGHR Services.”.

[41] The material before the Commission indicates that:

DP World in its correspondence of 3 December 2014 requiring Mr Kirkman to attend a disciplinary meeting did disclose those aspects of the Report relating to his behaviour that had been substantiated by Mr Gunzburg’s investigation;

the allegations of inappropriate behaviour outlined in the letter of 3 December 2014 were all canvassed in the 30 June 2014 meeting between Mr Kirkman and Mr Gunzburg;

the purpose of the disciplinary meeting of 4 December 2014 as outlined in the abovementioned letter was to provide Mr Kirkman with “the opportunity to respond to the following allegations of inappropriate behaviour which were substantiated in the investigation conducted by DGHR Services”; and

the decision to terminate Mr Kirkman’s employment was in part based on the findings of the Report. This is reflected in the termination letter sent to Mr Kirkman on 16 December 2014 by DP World which stated, inter alia, that:

“The findings of the investigation recommended that the allegations that had been made against you were substantiated”;
“Given the seriousness of the issue and to consider all matters carefully including your responses and statements and to revisit the information from the independent investigation, we adjourned the meeting until Tuesday 9 December 2014 prior to making any decision”; and
“The Company determined that it does not accept your version of the events and does not regard your explanation as sufficient to discharge the allegations. It is apparent from all the evidence and investigations (including your acknowledgement that you perpetrated some of the alleged conduct) that on the balance of probabilities the allegations have been found to be true;” 30.

[42] As stated in Krok:

“[25] Disclosure of the conclusion, gist, substance or effect of legal advice does not necessarily give rise to a waiver of privilege in respect of the whole advice. Whether it does or not in a particular case depends on whether, in the particular context and circumstances of the case … The relevant context and circumstances in this respect may include the evident purpose of the disclosure and the legal and practical consequences of limited rather than complete disclosure: Secretary, Department of Justice v Osland at [63]; Osland v Secretary, Department of Justice at [46].”

[43] In this case, based on the material before the Commission, the purpose of the partial disclosure was to provide Mr Kirkman with an opportunity to respond to those allegations made by Ms Bowker and Ms Coombe which had been substantiated by the investigation undertaken by Mr Gunzburg. In other words, the purpose of the disclosure was to focus the disciplinary discussion on those allegations that were found by Mr Gunzburg to have been sustained. The alternative would have been for DP World to simply put all of the allegations made by Ms Bowker and Ms Coombe regarding Mr Kirkman to him in the disciplinary meeting of 4 December 2014. This purpose does not suggest, again drawing on the language in Krok, that DP World’s intent in disclosing the allegations that had been substantiated by Mr Gunzburg was “to achieve some forensic advantage” but rather was to provide Mr Kirkman with an opportunity to present his version of events so as to enable DP World to come to a considered view as to whether or not the alleged behaviour had occurred. This does not support a finding that privilege has been waived in this case.

[44] I would also highlight the following observations of Senior Deputy President Lacy in Leask v Australian Federal Police, another of the authorities cited by DP World.

“[40] It is to be remembered that, where, as in this case, the reason for termination is based upon the alleged misconduct of the applicant, the Commission must determine for itself, on the evidence properly before it, whether the conduct did in fact occur and whether the termination of Mr Leask’s employment was harsh, unjust or unreasonable. The question is not whether it was reasonably open to the employer to conclude that the employee was guilty of the misconduct.” 31

[45] Those observations are equally apt in this case.

[46] In summary, the above analysis does not support a finding that privilege has been waived in this case.

[47] Finally, in view of the above findings, I do not need to deal with DP World’s submissions regarding the need for the Commission to balance the reasonableness of any burden on DP World with the public interest in the due administration of justice.

Conclusion

[48] For all the above reasons, I find that the Documents, other than the copy of the Federal Court of Australia’s Practice Note CM7 – Expert Witnesses in Proceedings in the Federal Court of Australia attached to the email of 5 June 2014 and the documents dated 27 and 28 February 2015 both of which I consider to fall outside the scope of the Order to produce issued by the Commission on 11 March 2015, are protected by privilege and that privilege has not been waived in respect of those documents. Practice Note CM7 can be inspected by Mr Kirkman or his representative upon application.

Seal of the Fair Work Commission with member's signature