[2021] FWC 3381

The attached document replaces the document previously issued with the above code on 15 July 2021.

The two Schedules referred to in paragraph [34] have been annexed at the end of the decision.

Steven Boughton
Associate to Deputy

Dated 19 July 2021.

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Peter Tainsh and Markus Willner
v
Co-Operative Bulk Handling Ltd
(U2021/1599 and U2021/1609)

Production of documents - legal professional privilege – implied or imputed waiver of privilege.

1 The issue and conclusion

[1] On 12 May 2021, I made an order for the production of certain documents directed to Co-Operative Bulk Handling Ltd (the Respondent) and a company by the name of Brennan & Associates, a firm retained by the Respondent to conduct a workplace investigation into the conduct of, amongst others, each of named applicants, Mr Tainsh and Mr Wellner.

[2] The Applicants had been dismissed from their respective positions in the Respondent’s maintenance team, having had an allegation of workplace bullying directed against them concerning their conduct toward an apprentice or apprentices. On receipt of the workplace bullying grievance, the Respondent engaged MinterEllison, a firm of lawyers, to undertake an investigation into the grievance. That law firm instructed Mr Simon Smith of Brennan & Associates to conduct the investigation.

[3] The Respondent asserts that certain categories of the documents filed with the Commission are, on record, confidential communications that are protected from production to the Commission by legal professional privilege. The categories of documents are relevantly produced at Schedule One and Two of this decision. In short, the categories of documents consist of the following:

(a) documents relating to the investigation of allegations made against five employees, including the applicants (investigation documents);

(b) documents generated in relation to the disciplinary process embarked upon in respect of each of the five employees following provision of the investigator’s report (disciplinary documents).

[4] Whilst initially objecting the Respondent’s claim of legal professional privilege over both categories of documents, having had to opportunity to consider the evidence and submissions filed, the Applicants accepted the privilege claim with respect to the disciplinary documents. The issue, however, remained concerning the investigation documents.

[5] In Damien Stephen v Seahill Enterprises Pty Ltd & Denise Fitzgibbons 1 (Stephens), the Full Bench expressed that the Commission is not empowered under s 590(2)(c) to issue orders requiring the production of the documents containing communications which are subject to legal professional privilege where the person to whom the privilege belongs objects to the production of the documents.

[6] In Stephens, the Full Bench described two limbs of legal professional privilege. The first, the legal advice limb, 2 is relevant to the application on foot. Under the legal advice limb of legal professional privilege, a communication will attract privilege if it was brought into existence for the dominant purpose of giving or obtaining legal advice.3 The Full Bench explained that this type of privilege applies to confidential written and oral communications between a lawyer and a client or between lawyers acting for a client, or the contents of a confidential communication prepared by the lawyer, the client, or another person, for the dominant purpose of the lawyer(s) providing legal advice to the client.4

[7] Given the Respondent’s reliance upon legal advice privilege, two questions arise for the Commission’s consideration concerning the investigation documents:

a) was the dominant purpose of the creation of those documents the obtaining or giving of legal advice to the Respondent, such that they are privileged?

b) if yes, has privilege been impliedly waived by actions of the Respondent inconsistent with the maintenance of the confidentiality that privilege is designed to protect?

[8] No argument was advanced that the Commission is deprived of jurisdiction to hear and determine whether the categories of documents, or rather the communications within those documents, attract legal professional privilege. As such, my answers to the abovementioned questions are yes and no, save the exception detailed at paragraphs [63] and [64]. My reasons follow.

2 Background

[9] Orders for production were made in respect of communications arising from the Respondent, Brennan and Associates and MinterEllison regarding the workplace investigation into the conduct of the Applicants. As noted, the documents were described by reference to two broad categories. The category in issue is the one which consists of those documents relating to the investigation of allegations made against five employees, including the Applicants (investigation documents).

[10] The first broad category of documents includes an Investigation Protocol dated 28 November 2020. The Investigation Protocol was prepared by MinterEllison. The Investigation Protocol refers to a Mr Sivwright making certain allegations to the Respondent’s Maintenance Superintendent in Albany, Mr Machiel Moolman, which prompted the commissioning of the investigation.

[11] After provision of the Protocol for the investigation, the Respondent explained that email communication occurred between the Respondent’s human resources and in-house legal personnel and MinterEllison in relation to the commissioning of the investigation. Text messages were said to have been exchanged between MinterEllison and Mr Smith, in order to provide him with advice during the course of the investigation. Mr Smith made records of interviews with 15 witnesses and produced other records in connection with the investigation. Finally, Mr Smith produced his report in respect of the investigation.

3 The existence of legal professional privilege

3.1 The Respondent’s submissions

[12] The Respondent sought to rely on the decision of AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) (Cole) 5 , extracting from the decision the following principles:

a) The onus is on the party claiming the existence of the privilege to establish that a document was brought into existence for the dominant purpose of giving or obtaining legal advice. That onus may be discharged by evidence as to the circumstances and context in which communications occurred or by evidence as to the purposes for which a communication occurred, or by the nature of the documents the subject of the claim.

b) The purpose for which a document is brought into existence is a question of fact that must be determined objectively. Evidence of the intended purpose of the party that procured the document is not necessarily conclusive as to its purpose.

c) The existence of the privilege is not established by the use of a verbal formula or by mere assertion.

d) In an ordinary case of a client consulting a lawyer about a legal matter in uncontroversial circumstances, proof of those facts alone will establish the existence of the privilege. 7.5. A dominant purpose is one that predominates over any other purposes; that is, it is the prevailing or paramount purpose.

e) An appropriate starting point when applying the dominant purpose test is to ask, ‘What was the intended use or uses to which the document was to be put which accounted for it being brought into existence?’

f) The concept of legal advice extends to professional advice as to what a party should “prudently or sensibly do in the relevant legal context”, 6 but it does not extend to purely commercial or ‘public relations’ advice.7

g) Legal professional privilege protects the disclosure of documents that record legal work carried out, but it does not extend to purely commercial or ‘public relations’ advice

h) Legal professional privilege protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of the client such as research memoranda, summaries of documents, chronologies and the like, irrespective of whether they are actually provided to the client.

i) The privilege extends to notes, memoranda or other documents made by officers or employees of the client that relate to the information sought by the client’s legal adviser to enable him or her to advise. The privilege also extends to drafts, notes and other material brought into existence by the client for the purpose of communication to the lawyer, whether or not they are themselves actually communicated to the lawyer.

j) Legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client.

k) Legal professional privilege protects communications rather than documents, and so can attach to copies of non-privileged documents if the purpose of bringing the copy in into existence satisfies the dominant purpose test.

[13] The Respondent submitted that having sought legal advice in relation to the bullying complaints, including advice as to investigating the complaints and taking disciplinary action in respect of the employees the subject of the complaints, the Respondent sought to ascertain what it should ‘prudently or sensibly do in the relevant legal context’. The Respondent continued that the documents generated by seeking the advice and having been provided with the same, fell within the scope of ‘legal advice’ as summarised in Cole.

[14] It was reiterated by the Respondent that the seeking of legal advice was the sole purpose of requesting, producing and facilitating the production of each of the documents falling within the investigation documents - there was no additional or ancillary purpose.

[15] Whilst the Respondent placed reliance on the principles it had extracted from Cole, it observed that the Applicant had referred to the decision of the Full Bench in Stephens. Counsel for the Respondent pressed that Stephens did not cast any doubt on Cole, and it was noted that at paragraph [63] of Stephens, there was reference to the ‘Cole proposition’ that the dominant purpose was a question of fact which was to be determined objectively with the appropriate starting point being the question of what was the intended use or uses of the document which accounted for it being brought into existence.

[16] It was the Respondent’s position that there was no real debate as to the applicability of Cole, and if there was one it would reject it. The Respondent considered that the Full Bench in Stephens, as was apparent from paragraph [71] of that decision, had accepted a finding in Bowker v DP World Melbourne Limited 8 that where an investigation had as its dominant purpose the provision of legal advice, then it would be privileged.  There was, said the Respondent, no prima facie position that it would not be privileged. 

[17] In response to the Applicants’ complaint that the Respondent had not put on any evidence to establish the purpose of the investigation, the Respondent argued that it had put a great number of documents to the Commission and was entitled to rely on those. The Respondent further contended that it had, by way of good measure, filed the affidavit of Ms Palino, a legal advisor, and that Ms Palino’s affidavit annexed a redacted copy of the Investigation Protocol that MinterEllison prepared. The Respondent explained the express purpose of the investigation, as evinced by the Investigation Protocol, was solely the provision of legal advice. The Respondent clarified that MinterEllison had essentially commissioned the investigation on behalf of the Respondent.

3.2 The Applicants’ submissions

[18] The primary position of the Applicants was that the investigation documents were not privileged at all. 

[19] The Applicants did not grapple with the Respondent’s reliance on Cole. While they had relied on the principles espoused by the Full Bench in Stephens, they acknowledged that Stephens did not cast any doubt on Cole.  Drawing upon Stephens, the Applicants set out the Full Bench’s recent synopsis of those principles: 9

a) legal professional privilege is a right belonging to the client, not the lawyer or any relevant third party;

b) legal professional privilege protects confidential communications rather than documents as such, and it is the nature of the communication within the document which determines whether or not the privilege applies;

c) a client making a claim of privilege carries the onus of establishing its claim. (The need for evidence to establish the necessary elements of such a claim was made express by the Full Bench in Kirkman v DP World Melbourne Limited; 10

d) the ‘dominant purpose’ for a communication is its ‘ruling, prevailing, paramount or most influential purpose’, and is not merely the ‘primary’ or ‘substantial’ purpose;

e) a communication in a document brought into existence for the dominant purpose of a client being provided with professional legal services will be privileged notwithstanding that some ancillary or subsidiary use of the document was contemplated at the time;

f) what is the dominant purpose is a question of fact, to be determined objectively;

g) an appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence; and

h) usually the purpose of a document will be that of the maker of the document, but in some cases it will be the purpose of the person who called the document into existence, such as a solicitor commissioning the provision of a technical report.

[20] The Applicants pressed that the critical point was that the dominant purpose of the creation of a document was to be obtained firstly on an objective basis, but secondly ascertained as at the time the document was created. The Applicants noted that it was the Respondent who carried the onus.

[21] The Applicants directed the Commission’s attention to the Investigation Protocol. It was noted by the Applicants that under the scope of work there were three dot points. The first was to obtain all particulars about the allegations.  The second, to put those allegations to any ‘respondents’ for the purposes of obtaining their response. The third, was to make factual findings, and in that same dot point, there was a reference to legal advice. Counsel for the Applicants observed that at the outset, each one of the three things mentioned was entirely consistent with a standard workplace investigation.  The only discernible difference, said the Applicants, was the insertion of the apparent desire to seek legal advice from MinterEllison.

[22] The Investigation Protocol noted that the investigation was to be confidential. In respect of this statement, Counsel for the Applicants commented that confidentiality was not the touchstone of privilege but an aspect of privilege. The critical question remained as to whether the investigation documents were both confidential and made for the purposes of seeking legal advice. 

[23] Referring to there being a statement in the Investigation Protocol that each document would be labelled privileged and confidential, and prepared at the request of Minter Ellison for the purposes of providing legal advice, the Applicants pithily responded that labelling a document ‘privileged’ was not determinative of its character. 

[24] Counsel for the Applicants thereafter referred the Commission to contemporaneous documents that were published to the Applicants at the time of the investigation.

[25] The first, the ‘Procedure – Employee Management of Discipline Procedure’ (Procedure), had, in part, a purpose to guide disciplinary action, including termination. Counsel for the Applicants stepped through the Procedure, noting that it covered investigative processes into allegations of behaviour or conduct and that the Procedure indicated that the purpose of an investigation was to determine whether the conduct occurred. Furthermore, said Counsel, there was a confidentiality requirement for persons participating in an investigation and an indication and acceptance contemplated by the Procedure, that the investigation would be conducted by an appropriate person, which could include, as happened in this case, an independent third party.

[26] Counsel for the Applicants next drew attention to the suspension letters of the Applicants dated 2 December 2020, which, said Counsel, were contemplated by the Procedure, and were in fact, a feature of it. The letters were entitled, ‘Investigation into your conduct’. Counsel submitted that the third paragraph was a specific reference to the Procedure and a requirement to attend the interview based upon that Procedure. Counsel characterised the investigation as one which was not a bespoke investigation process set up for the purpose of advice but rather, the workplace investigation contemplated by the Procedure. Counsel further identified that the Applicants were notified of the outcome of the investigation process and invited to disciplinary meetings, which was precisely what was contemplated by paragraph 2.5 of the Procedure. 

[27] Referring to Annexure E to Ms Henderson’s statement (letters to the Applicants of 20 January 2021), Counsel for the Applicants advanced that the letters were significant because they conveyed the preliminary view to the Applicants that it is appropriate to terminate their employment. Counsel added that Mr Smith’s findings were essentially incontrovertible at this point. Therefore, Annexure E indicated that the investigation process itself fed into the disciplinary proceedings in the very way which was contemplated by the Procedure. Counsel proposed that the Commission could take from this that the communications made to the Applicants taken together with the Procedure, were in stark contradiction to the asserted dominant purpose.

[28] The Applicants submitted that in contrast to the abovementioned documents were the emails and files notes of advice that might exist, where inquiries were made, for example, by employees of the Respondent and of Minter Ellison, about how the investigation should occur or issues that arise in the investigation.  The Applicants submitted that they would accept those sorts of communications, where the dominant purpose was obviously the taking of advice, as privileged.  But in their view, the sorts of matters where privilege was being claimed extended well beyond that. 

[29] The Applicants pressed that the dominant purpose was clearly the investigative procedure which preceded the disciplinary procedures contemplated.  The taking of legal advice must necessarily be ancillary to that or at some purpose lower than a dominant purpose which, said the Applicants, was required to establish that the documents were privileged in the first place.

3.3 Consideration

[30] The starting point is s 590(2)(c) of the Act. This provision specifically empowers the Commission to inform itself by requiring a person to provide copies of documents or records or other information to the Commission. It is pursuant to s 590(2)(c) that the Commission, on application or of its own motion, may issue orders for the production of documents.

[31] Yet, s 590(2)(c) specifically, and s 590 more generally, operates subject to the doctrine of legal professional privilege. 11 This is notwithstanding that s 591 provides that the Commission is not bound by the rules of evidence and procedure. Legal professional privilege is however not merely a rule of evidence, although given statutory articulation in Pt 3-10 Div 1 of the Evidence Act 1995 (Cth); it is a rule of substantive law and an important common law immunity which may not be abrogated by statute except by clear words or by necessary implication.12

[32] As noted, there are two limbs of legal professional privilege, one of which is relevant to the issues to be determined. That limb, namely the legal advice limb of privilege, goes beyond material that is literally a communication, or a record of a communication, or legal advice or instructions. It has been said that the privilege extends to any document prepared by a lawyer or client from which one might infer the nature of the advice sought or given. Therefore, it extends to internal documents or parts of documents of the client, or of the lawyer, reproducing or otherwise revealing communications which would be covered by privilege. 13

[33] In Bowker v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others (Bowker), 14 it was recognised that third party communications may attract legal professional privilege where the dominant purpose of the communication is the obtaining of legal advice not related to litigation where a client directs or authorises a third party to prepare and make the communication on the client’s behalf to the legal adviser.15 Privilege also attached to communications where the client directs or authorises a third party to prepare the communication for the dominant purpose of it being communicated by the client to the legal adviser,16 and where a third party communication is made by the third party in the capacity of an agent of the client for communication with the legal adviser.17

[34] As observed, the Respondent provided two Schedules attached to its ‘Respondent’s Submissions in Support of Claims of Privilege’. Those Schedules are annexed to this decision. In short, the Applicant submitted that the categories at three, four and seven of Schedule One were likely to be ‘investigation documents’, and therefore required particular scrutiny by the Commission; in addition to all the documents in Schedule Two, which Brennan & Associates were required to produce. 

[35] To recap, the assessment of whether documents in relation to which a claim for legal professional privilege is made is clearly 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. 18

[36] It is not uncommon that a party may reject a claim of legal professional privilege on the basis that communications (said to attach the privilege) were made for the dual purpose of both exposing the facts of what had occurred as part of a disciplinary or complaints management process and to enable an employer to obtain legal advice

[37] In Bowker, the applicants submitted that the ‘Gunzburg Communications’ were made for the dual purposes of enabling DP World to know the facts of what had occurred and to enable DP World to obtain legal advice. The argument was that the Gunzburg Communications did not have a dominant purpose of DP World obtaining legal advice. Having analysed the evidence of the parties and in turn considered their submissions, the Deputy President stated at paragraph [30]:

Turning then to the Applicants’ submission that the Gunzburg Communications and, in particular, the report would have come into existence irrespective of the purpose of obtaining legal advice and so that purpose cannot be the dominant purpose, that submission is not accepted. First, as DP World points out, the position is not factually sustainable having regard to the evidence that has been filed. DP World appears to have carried out its own investigations and made its own findings about what occurred and whether the policy had been breached. Secondly, there is no apparent reason why DP World cannot elect to conduct a workplace investigation, in particular circumstances, in a manner that ensures the product of that investigation is the subject of legal professional privilege or client legal privilege. What DP World chooses to do with that product after it is received might have the effect of waiving privilege, but it does not detract from the original purpose for which the product was obtained or give it a general purpose character so that the legal advice purpose is not the dominant purpose. (citations omitted)

[38] The Deputy President provided two reasons as to why the applicants’ submissions in Bowker could not be accepted. It is the second reason which has drawn the Full Bench’s attention in Stephens.

[39] In Stephens, the Full Bench found that the Commissioner was correct to identify the correspondence passing between O’Reilly Workplace Law (OWL) and Mr Harnett as providing the proper basis upon which to identify the dominant purpose of that investigation. Mr Hartnett was the barrister charged with conducting a workplace investigation into the bullying complaints made by Mr Stephen. The Full Bench was satisfied that the instructions from OWL upon which Mr Hartnett acted in conducting his investigation disclosed, in the Full Bench’s view, the actual basis upon which the investigation proceeded, notwithstanding what was subsequently represented to Mr Stephen (the applicant) as the purpose of the investigation.

[40] The Full Bench expressed that the instructions between OWL and Mr Hartnett disclosed in each case that the only purpose for the investigation (and the creation of documents in connection with the investigation) was to assist OWL to provide legal advice to Seahill and potentially to assist in the conduct of the anti-bullying proceedings. This made legal professional privilege squarely applicable.

[41] In Stephens, Mr Stephens had submitted that a number of representations had been made to him by both OWL and a Ms McCormack, a director of a HR company, for the purpose of Mr Hartnett’s investigation. Those statements about the investigation were said to have been inconsistent with the dominant purpose of providing legal advice. For example, it had been communicated to Mr Stephens by OWL that the investigation was being conducted in accordance with directions of the Fair Work Commission and it was also communicated that the investigation was for the purpose of investigating Mr Stephen’s bullying allegations. Further representations were made, such as the investigation was required by Seahill’s Workplace Bullying/Harassment Policy, was independent, and was a normal workplace investigation.

[42] A number of observations were made by the Full Bench about the representations directed to Mr Stephens. It is, however, acknowledged that not all representations have been recorded in the context of this decision; yet their omission does not detract from the observations made by the Full Bench. The first observation was that the representations were not consistent with the true basis upon which Mr Hartnett had been commissioned by OWL to undertake his investigation and to that extent were misleading. The second observation was captured at paragraph [71] in Stephens. I have not extracted the passage in full but save to say the Full Bench addressed the proposition of the Commissioner who had paraphrased Bowker and said that an employer was ‘entitled to elect to conduct workplace investigations in a manner that ensures the product of that investigation is the subject of legal professional privilege or client legal privilege’. Mr Stephens criticised the proposition, suggesting that an employer cannot cloak a workplace investigation in privilege where it does not have the requisite dominant purpose. The Full Bench stated:

[71] …We note that in his decision, the Commissioner paraphrased a statement made in Bowker v DP World Melbourne Limited when he stated the proposition that “Seahill is entitled to elect to conduct workplace investigations in a manner that ensures the product of that investigation is the subject of legal professional privilege or client legal privilege”. That proposition was criticised by Mr Stephen on the basis that an employer cannot “elect” to cloak a workplace investigation in privilege where it does not have the requisite dominant purpose. However, Bowker makes it clear that the type of workplace investigation being referred to in the paraphrased statement is one that has the provision of legal advice as its dominant purpose.  Bowker is not to be read as standing for the proposition that a workplace investigation which does not have the provision of legal advice and/or the provision of legal services in connection with litigation as its dominant purpose may nonetheless be subject to legal professional privilege merely on the basis that the investigation is undertaken by a lawyer.

[43] The Applicants have provided an exacting analysis of the evidence that provides context to the communications in question. Within the scope of that analysis, the Investigation Protocol has been considered in addition to a series of correspondence. The Applicant argues that even if the Commission were to form the view that a purpose of the Respondent in undertaking the investigation was to seek legal advice, the continuum of the correspondence referred to demonstrates the obvious centrality of the investigation to the disciplinary process and therefore negatives the possibility that seeking legal advice could have been the ‘dominant’ purpose. For the reasons that follow, I am unable to agree with such a contention.

[44] It was the Investigation Protocol that established the framework for the workplace investigation. That Protocol outlined that there were three purposes for the workplace investigation. Briefly stated, those purposes were to: (a) obtain more particulars about allegations; (b) discern if the allegations (if proven) would amount to breaches of relevant policies and put those allegations to the respondents to obtain their responses; and (c) make factual findings as to the allegations to allow MinterEllison to provide the Respondent with legal advice in relation to appropriate steps, including any potential disciplinary action.

[45] It seems from the Investigation Protocol that the documents in Schedules One and Two and particularly the report prepared by Mr Smith came into existence for the purpose of enabling MinterEllison to provide advice to the Respondent about the complaint that Mr Sivwright had made to Ms Sorraghan, Lead – Human Resources on 16 November 2020.

[46] The Applicants made reference to the correspondence they had received during the investigative process. This is understandable when one considers was said by the Full Bench of the Australian Industrial Relations Commission in the decision of Brown v BlueScope Steel Limited (BlueScope). 19 The Full Bench identified in BlueScope that ‘there is a very real difference between an independent inquiry and the provision of legal advice to a client’. This point, however, will be expanded upon when waiver of privilege is considered.

[47] Similarly, in Stephens, the Full Bench expressed that a procedurally fair workplace investigation initiated by an employer, the outcome of which is intended to be made known to relevant employees in the workplace and which is to lead, where necessary, to corrective or disciplinary action, is not one which ordinarily has a purpose confidential to the employer. 20

[48] Letters were sent to the Applicants on 2 December 2020. The letters were entitled ‘Suspension from work with pay and particulars of allegations’. The Applicants argued that the letters demonstrated that the investigation was not undertaken for the dominant purpose of legal advice at all, but rather for the dominant purpose of inquiring into the allegations against the Applicants, and to seek to test if they were substantiated as a matter of fact, with the intention that any findings of fact would be used to inform decisions whether disciplinary action should be undertaken and, if so, what. The Applicants extracted the following passages from the letters in question:

Co-operative Bulk Handling Limited (CBH) takes these allegations very seriously and accordingly has engaged Mr Simon Smith, an external third party, to conduct a formal investigation into the allegations.

If substantiated, these allegations may constitute a breach of CBH’s The Way We Work – Business Code of Conduct and CBH’s Workplace Harassment Discrimination Bullying and Equal Employment Opportunity procedure and could lead to disciplinary action being taken, up to and including termination of your employment.

[49] However, the letters of 2 December 2020 also provided that the Applicants were to attend an interview which was not disciplinary. That interview was with Mr Smith. While the letters of 2 December 2020 did not speak of the investigation being undertaken so as to enable MinterEllison to provide legal advice to the Respondent, the letters do not deviate from the purpose of what was expressed in the Investigation Protocol.

[50] Correspondence to the Applicants on 4 December 2020 provided that the investigation process was an investigation process in accordance with the Respondent’s Procedure. 21 It is noted that the Procedure was ‘designed to assist managers and supervisors in developing employee competence and effectively managing performance, behaviour or conduct’ (see paragraph [1.2] of the Procedure).

[51] The Applicants submitted that the Procedure made clear that ‘[W]hen the investigation is completed, the respondent employee will be advised of the findings’. The Applicants continued that nothing in the Procedure supported the notion that it applied to investigations for which the dominant purpose was the provision of legal advice to the employer, as opposed to investigations into employee performance and conduct with the intention that the result of the investigation would be used to inform subsequent decisions about corrective or disciplinary action.

[52] However, the letters of 8 December 2020 are to be understood in the context in which they were provided. The letters acknowledged that the Respondent had received correspondence from the lawyers of the Applicants. Furthermore, the interview with Mr Smith had been postponed and rescheduled. The Respondent then referred to its Procedure for the purpose of directing the Applicants to attend an interview, noting that the direction was lawful and reasonable. It drew upon the Procedure to justify that a direction to attend an interview was lawful and reasonable. This does not, in my view, detract from an argument that the dominant purpose of the investigation documents was the provision of legal advice.

[53] Further correspondence of 8 January 2021 was sent to the Applicants. That correspondence was entitled ‘Outcome of formal investigation – invitation to attend disciplinary meeting’. The Applicants observed that the correspondence to the Applicants dated 8 January 2021 undermined any suggestion that the dominant purpose of the investigation documents was the provision of legal advice. The Applicants pressed that these letters to the Applicants exposed the findings of the investigation, made clear that a decision maker within CBH had concluded – explicitly on the basis of those findings – that the conduct was serious, a breach of the Applicants’ contracts of employment, a breach of the code of conduct and amounted to bullying and harassment. It was the Applicants’ view that this evidence confirmed what was apparent from 2 December 2020 – that the investigation was being undertaken for the dominant purpose of informing a disciplinary process.

[54] At this juncture, it is relevant to observe that the ‘dominant’ purpose is the ruling, prevailing, paramount or most influential purpose. This does not mean that other purposes cannot exist. 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.

[55] The Investigation Protocol encompassed making factual findings as to the allegations to allow MinterEllison to provide legal advice in relation to the appropriate steps. The letters of 8 January 2021 and those of 20 January 2021 (titled ‘[N]otification of preliminary view’), simply evinced the Respondent taking those next ‘appropriate steps’. Those steps had been contemplated by the Investigation Protocol.

[56] According to the Applicants, the correspondence of 20 January 2021 confirmed the fact-finding purpose of the investigation for the disciplinary process as it was noted:

Much of your Response comprises additional responses, or reiterates your previous responses, to the allegations put to you in the course of the Investigation. As was outlined in the Investigation Outcomes Letter, the investigation has been finalised and findings have been made against you. CBH is satisfied you had ample opportunity to provide your responses during the Investigation and those were properly considered by the Investigator. In any event, having considered your supplementary responses to the allegations, I am satisfied they would not have changed the investigation outcomes and findings against you.

[57] It was the Applicants’ view that the letters indicated that a preliminary view had been taken that the Applicants’ employment would be terminated, explicitly on the basis of the findings of the investigation. However, the letters of 20 January 2021, set out that the Applicants had been informed of the investigation’s findings against them and that the Respondent had considered that the Applicants’ conduct impacted the maintenance team negatively, amounted to bullying and harassment, and was in breach of contractual obligations. The letters of 20 January 2021 thereafter detailed that the General Manager had considered the Applicants’ response noting a lack of contrition. The preliminary view appeared to have been premised on a culmination of factors – not merely the investigative findings.

[58] It may be argued that there were two purposes that were of equal weight, and therefore neither was dominant in the relevant sense. One purpose being the provision of legal advice and the other to conduct a workplace investigation in accordance with the Respondent’s Procedure by engaging an independent investigator. However, in this respect, it is important to correctly identify the proper basis upon which to identify the dominant purpose for the investigation. In my view, the Investigation Protocol marked ‘Privileged & Confidential’ provided the instructions upon which MinterEllison and Mr Smith of Brennan & Associates, acted in conducting the investigation. The Investigation Protocol disclosed that the only purpose for the investigation (and the creation of documents in connection with the investigation) was to assist MinterEllison to provide legal advice to the Respondent. This made legal professional privilege ‘squarely’ applicable.

[59] The Applicants submitted that having regard to the various representations made by the Respondent in contemporaneous documents, it was clear that the prevailing purpose was to ascertain whether, as a matter of fact, the allegations had occurred in order that those findings would be used to inform any subsequent disciplinary action. In this respect, the Applicants argued that the case was on all fours with that of Gaynor King (King). 22 I am not so convinced.

[60] In King, it was found that the provision of legal services had not been contemplated at the time when the investigation was commissioned. Furthermore, it was noted that the respondent had not put forward with any particularity the legal advisory purpose held by the commencement of the investigation report. 23 Parallels are simply unable to be drawn.

[61] While I have concluded that the documents in the categories set out in Schedules One and Two attract privilege, there are exclusions.

[62] In The Commissioner of Taxation of the Commonwealth of Australia v Pratt Holdings Pty Ltd, it was held that the dominant purpose for making a document is to be determined at the time of its production. 24 Hence the fact that a document is provided to solicitors for advice is not determinable of the purpose for which it was created.

[63] Under Schedule 2, Type - No.5, a document was present that appeared to be a record of interview with Mr Sivwright. It was dated 16 November 2020. I have considered that document in light of the Investigation Protocol, other evidence and submissions of the parties. I am of the view that legal professional privilege does not attach to the communication on the basis of there being insufficient evidence to ground such a finding. It was acknowledged at hearing that the complaint which had started the investigation was oral.  Once it was made, legal advice was sought.  That was the first thing that happened. However, it was not evident that in recording the oral complaint in the record of interview that such communication was undertaken for the dominant purpose of seeking legal advice. While the record of interview is labelled ‘[P]rivileged and Confidential – Prepared solely for the purposes of obtaining legal advice’ –there is limited evidence before me that persuades or otherwise suggests this as the purpose for making the document.

[64] Further documents to which privilege does not attach includes the correspondence between the parties, or rather the legal representatives of the parties under Schedule 2, Type - No.2.

4 The question of waiver of the privilege

[65] The Respondent submitted that an implied waiver of legal professional privilege will arise when the conduct of the party claiming the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. 25 Referring to the decision in DSE Holdings Pty Ltd v Intertan Inc,26 the Respondent explained that an implied waiver arose when a party entitled to the privilege makes an assertion or brings a case which is about the contents of the confidential communication, or necessarily involves scrutiny of the communication, such that would be unfair for the matter to be determined without disclosure of the communication.

[66] Attention was directed to the decision in Kirkman v DP World (Kirkman), 27 where the question of waiver was examined within the context of an employee having been directed to participate in a workplace investigation organised by his employer’s solicitors. Having been interviewed, the employee in question was advised of certain investigation findings. The Respondent observed that in Kirkman, the Deputy President referred to the decision of the Federal Court in Krok v Commissioner of Taxation,28 noting that disclosure of the conclusion or effect of legal advice does not necessarily give rise to a waiver of privilege in respect of the whole advice. It was observed that it is necessary to examine the evident purpose of the disclosure and the legal and practical consequences of limited rather than complete disclosure.

[67] The Respondent noted that it had disclosed to the Applicants an audio recording of their interview with Mr Smith and Mr Smith’s findings as they pertained to each of them. The Respondent clarified that the provision of both occurred for the limited purpose of providing the employee with an opportunity to respond to the allegations that had been found to be substantiated by the investigation – that is, said the Respondent, the disclosure had occurred for precisely the same limited purpose as that identified in Kirkman. The Respondent emphasised that the disclosure for that limited purpose did not constitute a waiver of the contents of Mr Smith’s report and the associated, privileged documents.

[68] Concerning the Respondent’s reliance on Kirkman, the Applicants submitted in any case involving the application of legal privilege, and also the issue of waiver, it was a highly fact-sensitive matter. Therefore, care needed to be taken when transplanting the outcome in one case to try to apply it to the outcome in another case.  The only thing that should be transplanted, said the Applicants, was the legal principle.

[69] The Applicants sought to distinguish Kirkman on the basis that the investigation process did not - as it did in this case - form part of a continuum of disciplinary proceedings. The Applicants continued that it was not necessary for there to be a ‘disclosure’ of privileged material in order for there to have been waiver. Conduct of the Respondent which was inconsistent with maintaining the privilege was sufficient. The conduct relied upon included:

a) disclosures about the conduct and findings of the investigation already made to the Applicants;

b) the reliance on the investigation in dismissing the Applicants; and

c) the likely reliance by the Respondent – to defend these proceedings – on factual material gathered as part of the investigation.

[70] Based on the material before the Commission, it can be seen that the purpose of disclosing in a limited form whether allegations were substantiated during the course of the investigation, was to provide the Applicants with an opportunity to respond to those substantiated allegations. The purpose of the disclosure, therefore, was to focus the disciplinary discussion on those allegations that were found by the investigation to have been substantiated – not the ones that had not. I am satisfied that disclosure for this limited purpose did not constitute a waiver of the contents of Mr Smith’s report and the associated, privileged documents.

[71] To add, the workplace investigation culminated in the making of findings as to whether certain allegations were substantiated or not. But the evidence did not support a finding that the Respondent relied only on the investigation in dismissing the Applicants.

[72] It was communicated to the Applicants from the outset that the interviews conducted by Mr Smith were not disciplinary interviews. Further, it is apparent from the letters to the of 20 January 2021, that the preliminary view of the General Manager appeared to have been premised on a culmination of factors – not merely the investigative findings.

[73] The Respondent submitted that the disciplinary process that followed its receipt of the investigator’s report culminated in a decision paper, which was provided to the Applicants’ solicitors in answer to the notice to produce. The contents of the decision paper, said the Respondent, demonstrated that the decision-making process took into account the correspondence between the Respondent and each employee that followed the advice of the investigator’s findings. There is no evidence before me to suggest that this was not the case.

[74] The Respondent added that the contents of the decision paper did not involve the Respondent relying on the contents of the investigator’s report in any manner that would achieve a forensic advantage without the disclosure of the report itself. Indeed, the focus of the decision paper was said to be on matters raised by the employees themselves during the course of the subsequent, disciplinary process, which involved exchanges of correspondence between each employee and the General Manager.

[75] In all the circumstances, I am not satisfied that there was a waiver of privilege as purported by the Applicants.

[76] However, for the sake of completeness, I note that the Applicants canvassed that the Commission should also consider whether there had been manifest unfairness which grounded a waiver of privilege. Referring to BlueScope, the Applicants identified that in that decision, there was a divergence between the purpose of the investigation and the reason for the investigation that was communicated to employees. The Applicants noted that the purpose of the investigation in BlueScope was to seek legal advice that was bound to be accepted. But employees were told something else to encourage and facilitate involvement in the investigative process – namely that it was for the purposes of an independent investigation. That, said the Applicants, was a situation where the manifest unfairness was found to constitute a waiver of privilege.

[77] In BlueScope it was said that waiver of the privilege will be imputed where, in the court’s judgment, the client’s conduct is inconsistent with the maintenance of confidentiality. Furthermore, in BlueScope, representations were made to a Mr Brown that he was participating in an ‘independent inquiry’ when in fact, BlueScope had retained a law firm to advise it concerning its prospects in the litigation initiated by Mr Brown. The Full Bench of the Australian Industrial Relations Commission concluded that it was 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. There is a very real difference between the inquiry undertaken in BlueScope and the investigation under scrutiny before me now.

[78] I do not consider that there was disconnect between what was told to the employees and what was happening between Minter Ellison, Brennan & Associates, and the Respondent, such that unfairness would justify a finding of waiver in these circumstances. An investigation carried out under Respondent’s Procedure may or may not be privileged, depending on the purpose for which that particular investigation has been commissioned. In this case, it was. However, the Procedure is silent on the point. Further, I note, it was communicated to the Applicants that the interviews with Mr Smith were not disciplinary interviews. Such communication was not discordant with the purpose of the investigation, namely, to make factual findings as to the allegations to allow MinterEllison to provide legal advice in relation to the appropriate steps.

DEPUTY PRESIDENT

Appearances:

Mr. Christopher Parkin, of Schweizer Kobras Lawyers, for the Applicant;
Ms. Fiona Henderson, of Schweizer Kobras Lawyers, for the Applicant;
Ms. Fiona Stanton, of Minter Ellison, for the Respondent;
Ms. Stephanie Paolino, of Minter Ellison, for the Respondent;
Mr. Rob Humphreys, of Minter Ellison, for the Respondent.

Hearing details:

Perth (video);
June 11;
2021.

Printed by authority of the Commonwealth Government Printer

<PR730659>

Order for production of documents issued to the respondent (CBH) dated 12 May 2021

Schedule of documents produced to Commission on 2 June 2021, in relation to which the CBH objects to inspection by the applicants

The attachments to the emails in item 1, 2 and 3 include documents that fall within items 4 and 7 of this schedule.

Order for production of documents issued to Brennan & Associates dated 12 May 2021

Schedule of documents produced to Commission on 2 June 2021, in relation to which the respondent (CBH) objects to inspection by the applicants

 1   [2021] FWCFB 2623 [60] (‘Stephens’).

 2   Ibid [62].

 3   Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49 (‘Esso’) at 64-65 [35]; Daniels Corporations International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543 (‘Daniels’) at 552 [9].

 4   Stephens [62].

 5   [2006] FCA 1234 (‘Cole’) [44].

 6   Ibid.

 7   Ibid.

 8   [2015] FWCFB 3995 [23].

 9   Stephens [63].

 10   [2015] FWCFB 3995 [24].

 11   Stephens [61].

 12   Daniels [9]-[11]; Stephens [61].

 13   Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd [1992] 2 Lloyd’s Rep 540 at 540 (Saville J).

 14   [2015] FWC 7887.

 15   Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357.

 16   Ibid.

 17   Ibid; Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority (2002) 4 VR 332.

 18   The Commissioner of Taxation of the Commonwealth of Australia v Pratt Holdings Pty Ltd [2005] FCA 1247 at [30 (3)].

 19   Brown v BlueScope Steel Limited [2005] AIRC 955, PR964604 (‘BlueScope’).

 20   Stephens [71].

 21  Statement of Fiona Henderson (Henderson Statement) Annexure C.

 22   [2018] FWC 6006 (‘King’).

 23   Ibid [16].

 24   Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 [32].

 25   Mann v Carnell [1999] HCA 66.

 26   [2016] FWC 605 (‘Kirkman’).

 27   Ibid.

 28   [2015] FCA 51.