[2015] FWC 7887
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.789FC - Applications for an order to stop bullying

Sharon Bowker, Annette Coombe and Stephen Zwarts
v

DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others

(AB2014/1260; AB2014/1261; AB2014/1266

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 16 NOVEMBER 2015

Application for a FWC order to stop bullying; order to produce documents; claim of legal professional privilege over certain documents; dominant purpose; waiver; ss.118, 119, 121-125 and 126 of the Evidence Act 1995 (Cth); claim of legal professional privilege (and client legal privilege) upheld save for two documents; request for access to other documents denied.

Introduction

[1] On 2 July 2015, I made an order directed to DP World Melbourne Limited T/A DP World (DP World) for the production of certain documents. In producing those documents DP World has identified a number of documents that are the subject of a claim of legal professional privilege.

[2] The documents consist of 16 pieces of email correspondence, some containing attachments (Gunzburg Communications), passing between Seyfarth Shaw, the solicitors for DP World in these proceedings, and Mr David Gunzburg, the Principal of DGHR Services, a consulting business providing various human resources related services. Mr Gunzburg was engaged by Seyfath Shaw to investigate and report on allegations contained in complaints made by Ms Sharon Bowker and Ms Annette Coombe, both of whom are applicants in these proceedings (Applicants).

[3] After giving consideration to the written submissions filed by the parties, the evidentiary material referred to therein and reviewing the Gunzburg Communications in respect of which legal professional privilege was said to attach, I determined to uphold the legal professional privilege claim in respect of the Gunzburg Communications except for:

[4] I made the two documents available for inspection on application. These are my reasons for that decision.

Relevant principles

[5] The relevant applicable principles for determining a claim for legal professional privilege are not in contest. To begin with, although the rules of evidence do not apply to the Fair Work Commission (Commission) 1, legal professional privilege is not merely a rule of evidence but a substantive doctrine of the common law applicable to administrative tribunals such as this Commission, unless expressly excluded by statute.2 There is no provision of the Fair Work Act 2009 (the Act) which excludes the operation of the doctrine of legal professional privilege in relation to proceedings before this Commission.

[6] At common law, three separate categories of legal professional privilege may be distilled 3. First, there is that which is described as ‘advice privilege’, which is attached to confidential written and oral communications passing between a lawyer and that person’s client, for the dominant purpose of the lawyer providing legal advice to that client. Secondly, legal professional privilege attaches to confidential written and oral communications made, or prepared, for the dominant purpose of use in existing or reasonably contemplated judicial or quasi-judicial proceedings. This is referred to as ‘litigation privilege’. The third category is an extension of ‘litigation privilege’ and involves confidential written and oral communications passing between a lawyer and third parties, or the client and third parties, if made or prepared when litigation was on foot or reasonably contemplated and the dominant purpose for the existence of the communication was related to such proceedings. It is to be observed that legal professional privilege may, in particular circumstances (discussed further below), attach to third party communications made for a non-litigation related purpose.

[7] In Trade Practices Commission v Sterling 4 Lockhart J set out the categories of documents to which the doctrine of legal professional privilege5 extends:

[8] His Honour also observed that it ‘is not open to doubt that the court has power, in a proper case, to inspect documents where a claim of privilege is made to resist an application for inspection of documents by the opposite party.’ 7 Both the Applicants and DP World agreed that I should examine the Gunzburg Communications to assist in my determination of the legal professional privilege claim. The MUA did not make any substantive submission on the legal professional privilege claim.

[9] Third party communications seem also to 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, 8 or 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.9 A third party communication will also attract legal professional privilege if it is made by the third party in the capacity of an agent of the client for communication with the legal adviser.10

[10] Relevantly, ss.118 and 119 of the Evidence Act 1995 (Cth) (Evidence Act) deal respectively with advice and litigation privilege, collectively described as ‘client legal privilege’. Section 118 relevantly provides that evidence is not to be adduced if, on objection by a client, the court finds that producing the evidence would result in the disclosure of a confidential communication between the client and a lawyer or the contents of a confidential document (whether delivered) prepared by the client, a lawyer or another person, in each case for the dominant purpose of the lawyer providing legal advice to the client. Section 119 relevantly provides that evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in the disclosure of a confidential communication between the client and another person, or between a lawyer acting for the client and another person, but was made: or the contents of a confidential document (whether delivered or not) that was prepared in each case for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding.

[11] Relevantly, s.117 of the Evidence Act carries a definition of ‘confidential document’ as a document prepared in such circumstances that, when it was prepared, the person who prepared it, or the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under the law.

[12] Both DP World and the Applicants proceeded to deal with the question whether legal professional privilege attaches to the Gunzburg Communications by addressing both common law and the statutory provisions. Neither DP World nor the Applicants made any submission to the effect that the statutory provisions did not apply in the current circumstances and so I proceed on the basis that the Evidence Act has application. 11

[13] The question whether legal professional privilege attaches to the Gunzburg Communications turns on resolving two issues. The first requires a determination about the purpose of the Gunzburg Communications and whether the purpose alleged by DP World was the dominant purpose. The second concerns the question of waiver of privilege and only requires determination if legal professional privilege first attached to the Gunzburg Communications.

Relevant factual context

[14] Ms Bowker and Ms Coombes each lodged applications for orders that bullying be stopped on 26 May 2014.

[15] On 3 June 2014, the solicitors for DP World engaged Mr Gunzburg to conduct an investigation and to prepare a written report in relation to allegations made by Ms Bowker and Ms Coombe in order to assist the solicitors for DP World to provide advice to DP World in relation to the complaints made. 12 The engagement correspondence makes clear that any correspondence is in confidence and subject to legal professional privilege, and that the report prepared by Mr Gunzburg is to be marked with an indication that the document is confidential and privileged. Mr Gunzburg is also asked in the engagement correspondence to comply with the Federal Court of Australia’s practice note for expert witnesses in preparing the report. The correspondence is accompanied with various briefing materials prepared by solicitors for DP World. Thereafter, and until 28 February 2015, solicitors for DP World and Mr Gunzburg corresponded by email and exchanged documents in or in connection with the report.

[16] Between 5 June and 21 July 2014, the solicitors for DP World and solicitors for the Applicants exchanged correspondence concerning investigations into the complaints that had been made by Ms Bowker and Ms Coombe, the engagement of Mr Gunzburg, compliance with DP World’s policy, and the participation of Ms Bowker and Ms Coombe in interviews to be conducted by Mr Gunzburg. 13

[17] Mr Gunzburg provided a report to the solicitors for DP World on or about 9 July 2015 and pursuant to various exchanges of correspondence earlier noted, Mr Gunzburg subsequently answered various queries about his report raised by the solicitors for DP World.

[18] A document setting out the findings of the investigation conducted by Mr Gunzburg (Gunzburg Summary) in relation to allegations made by Ms Bowker and Ms Coombe as at 27 February 2015 is attached to the witness statement of Mr Glenn McCluskey dated 22 May 2014 [sic] filed by DP World in the substantive proceedings. 14

Consideration

Dominant purpose

[19] The Applicants submit that the Gunzburg Communications were made for the dual purposes of enabling DP World to know the facts of what had occurred (including so as to promote satisfaction of Ms Bowker and Ms Coombe that complaints had been appropriately managed to enable safe work), and to enable DP World to obtain legal advice. The Applicants submit that therefore the Gunzburg Communications did not have a dominantpurpose of DP World obtaining legal advice. In those circumstances, neither legal professional privilege nor client legal privilege is available to prevent disclosure.

[20] The Applicants submit that legal professional privilege and client legal privilege under the Evidence Actare available where the dominant purpose of a communication is to obtain legal advice or legal services in relation to a proceeding. As to legal professional privilege founded on litigation privilege (and presumably client legal privilege founded on s.119 of the Evidence Act, the mere fact that a communication occurs at a time when proceedings are on foot is not enough to establish that legal professional privilege applies – in respect of legal professional privilege it is the purpose of the communication which is decisive. Whether or not a communication has that dominant purpose is a question of fact to be determined objectively. A dominant purpose is that which is clearly paramount. It is more than the primary or a substantial purpose. 15 The Applicants also submit that it is open to find the dominant purpose test is not satisfied where the document was always to be deployed for non-privileged purposes, which purposes were of ‘significance’ even though the privilege purpose ‘may’ have been the most important single factor.16 All of this is undoubtedly correct.

[21] In order to make good their submission, the Applicants say that it is apparent that DP World always intended that part of its defence in these proceedings and its conduct of any disciplinary outcomes, would include reliance on the Gunzburg Communications. They say there is no suggestion that DP World always intended that its consideration of the Gunzburg Communications would be limited to identifying and considering legal exposure by seeking legal advice. This seems to me to be an overly narrow view of the scope of legal advice that might be sought or given. For example, legal advice might be sought or given about the steps that should be taken to rectify identified breaches of occupational health and safety law or about the steps that might be taken to avoid a repetition of conduct identified by an investigation report as having occurred.

[22] The Applicants say that the evidence shows that an explicit purpose of the Gunzburg Communications (accepting that it was also to be provided to lawyers for the purpose of seeking legal advice) was to ‘identify what conduct is currently occurring in the workplace and seek to resolve Ms Bowker’s and Ms Coombe’s concerns about their ongoing work arrangements’. The Applicants submit that DP World, as a responsible employer with a relevant policy providing for management of unacceptable workplace conduct, as well as obligations under legislation, would unsurprisingly seek to understand the facts as to what had occurred, and by doing so to assure its employees that they were able to work safely. As a serious workplace conduct issue, it is also unsurprising that DP World was seeking legal advice, but nothing about the situation establishes legal advice as the dominantpurpose of the Gunzburg investigation. They say that if the decision to bring the document into existence would have been made irrespective of any purpose of obtaining legal advice or in connection with litigation, the latter purpose cannot be dominant. 17

[23] This last submission seems to rest on a view that DP World conducted a workplace investigation of the complaints in a manner that is the subject of legal professional privilege or legal client privilege because the fact that it undertook a workplace investigation through an external investigation, commissioned by external lawyers, would not alter the dominant purpose of the investigation and documents produced in the course of it, namely compliance with its policy and other obligations.

[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. 18 The purpose will ordinarily be that of the maker of the document or communication, but this will not always be the case.19 The evidence of the intention of the maker of the document or the communication, or of the person who authorised or procured it, is not conclusive of purpose.20 To that extent, the Applicants’ submitted to the effect that, in the case of a third party communication to a lawyer, the inquiry should be as to the state of mind of the lawyer,21 that submission must be rejected.

[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

[26] The material before me, including the material that is the subject of the claim for legal professional privilege or client legal privilege shows the following:

[27] It seems from the above that the Gunzburg Communications and particularly the report prepared by Mr Gunzburg was commissioned and came into existence for the purpose of enabling solicitors for DP World to provide advice to DP World about complaints that had been made by Ms Bowker and Ms Coombe.

[28] To the extent that the ‘dual purpose’ alleged by the Applicants is said to be made out by the correspondence exchanged between the solicitors for the parties, the course of correspondence does not support that conclusion. In my view, the correspondence from the solicitors for DP World does not contain statements or representations that suggest any dual purpose. I note the Applicants reliance on a letter from DP World’s solicitors to their solicitors of 5 June 2014, 27 however this correspondence cannot be read in isolation and must be read in the context of the whole of the correspondence that passed between the two firms of solicitors on 5 and 6 June 2014. In addition, I accept DP World’s submission that the statements relied upon by the Applicants arising from the 5 June 2014 letter, when read in context, were statements about the general objective of DP World at that point in time, and how it would prioritise its response to the various allegations. It was not a statement about the purpose of Gunzburg Communications and in particular the report.

[29] Similarly, to the extent that the correspondence exchanged between the solicitors deals with whether Ms Coombe and Ms Bowker would participate in the interviews with Mr Gunzburg, this sheds no light on the question of the purpose of the communications. The correspondence, when read in conjunction with the other correspondence passing between the solicitors, does not suggest that the purpose of Mr Gunzburg’s investigation is anything other than to enable the solicitors for DP World to provide advice. 28

[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. 29 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.

[31] In my view the Gunzburg Communications came into existence for the purpose of enabling the solicitors for DP World to provide legal advice about the complaints made by Ms Bowker and Ms Coombe. The legal advice was sought in the context of the substantive proceedings having been commenced. When the correspondence passing between the solicitors for the parties is read in context, that correspondence does not support the proposition advanced by the Applicants, rather the correspondence read in its totality is consistent with the Gunzburg Communications having come into existence for the dominant purpose of enabling the provision of legal advice.

Waiver

[32] The relevant principles relating to the waiver of legal professional privilege have been recently set out in Krok v Commissioner of Taxation 30 as follows:

[33] The Applicants submit that there has been a waiver because DP World has deployed the Gunzburg Summary, which is drawn directly from the Gunzburg Communications, apparently for the forensic purposes of making out its defence that it has dealt with the complaints of Ms Bowker and Ms Coombe in an appropriate and timely way, although that issue is contested. The Applicants contend this is especially the case in circumstances where it is apparent that the full terms of the Gunzburg Communications may not support DP World’s position, maintenance of privilege is inconsistent with the deployment by DP World of the Gunzburg Summary in Mr McCluskey’s witness statement.

[34] The Gunzburg Summary does no more than to set out the particulars of the specific complaints made by Ms Bowker and Ms Coombe and to set out the finding made, in the sense that it indicates whether the matters complained of were able to be substantiated, were not substantiated or were not able to be substantiated. The Gunzburg Summary appears to me to disclose no more than the conclusions reached by Mr Gunzburg, and not the substance of his report or the reasons for reaching any particular conclusion. Again on its face, neither the Gunzburg Summary nor its attachment to the witness statement of Mr McCluskey show that there is some inconsistency with the maintenance of confidentiality of Mr Gunzburg’s report and the Gunzburg Communications as a whole.

[35] DP World has submitted that it does not rely upon the Gunzburg Summary for any particular forensic purpose or advantage, nor does it rely on the actual findings made and recorded in it, rather it is referred to in Mr McCluskey’s witness statement as part of the process of what had occurred. 31 DP World is, of course, to be held to this purpose. In the substantive proceedings DP World proposes only to rely on the outcomes of its own inquiries and considerations as set out in the witness statement of Mr McCluskey. I accept that the inclusion of the Gunzburg Summary among the material attached to the witness statement of Mr McCluskey is not included by DP World for the purposes of obtaining any particular forensic advantage. Furthermore, it seems clear from the totality of the material that has been filed by the parties in the proceedings that neither the fact that findings were made by Mr Gunzburg nor the veracity of those findings is in dispute. Nor as is apparent from DP World’s concession that it does not rely on the Gunzburg Summary for forensic advantage, can it be submitted that DP World relies on that document to suggest that the Applicants refused or unreasonably failed to participate in its investigation of their workplace complaints (or some of them), that DP World complies with its relevant policies, that those policies are adequate or that DP World’s workplace investigations into complaints lodged by the Applicants were timely and appropriate.

[36] Turning then to the question of waiver under the Evidence Act, client legal privilege may be lost in circumstances set out in ss.122(2) and 126. The circumstances described in s.122(2) are relevantly similar to waiver of legal professional privilege under the common law in that the key consideration is conduct which is inconsistent with the maintenance of the privilege. For the reasons given above, the Applicants contention that client legal privilege has been waived for the purposes of the Evidence Act is rejected.

[37] As to the circumstances described in s.126 of the Evidence Act, the Applicants submit that it has the result that client legal privilege over the Gunzburg Communications has been lost because evidence of the wider Gunzburg Communications (including their timing) is reasonably necessary in order to obtain a proper understanding of the Gunzburg Summary, where only the summary been disclosed in Mr McCluskey’s witness statement. This submission is misconceived. Section 126 provides:

‘Loss of client legal privilege: related communications and documents

[38] The Gunzburg Summary is not a document over which client legal privilege is claimed and so it is not a document or communication about which evidence may be adduced because of ss.121 to 125, inclusive, of the Evidence Act. It is only in those circumstances (i.e. the Gunzburg Summary being the first mentioned document or communication referred to in s.126), that evidence of another communication or document (the Gunzburg Communications) may be adduced if it is reasonably necessary to enable a proper understanding of the first mentioned communication or document.

Conclusion

[39] For the reasons given, I uphold DP World’s claims of legal professional privilege and client legal privilege over the Gunzburg Communications and I refuse the application by the Applicants to access those documents save as earlier indicated.

Seal of the Fair Work Commission with Member's signature

DEPUTY PRESIDENT

Written submissions:

DP World Outline of Submissions, 21 July 2015.

MUA Outline of Submissions, 22 July 2015.

Applicants’ Outline of Submissions, 22 July 2015.

DP World Reply Submissions, 23 July 2015.

 1   Section 591 of the Fair Work Act 2009 (Cth).

 2   Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; Re Postal Delivery Officers Union (1999) 94 IR 380.

 3   It is noted that the second and third category identified are often subsumed under the rubric of ‘litigation privilege’.

 4   [1979] FCA 33; (1979) 36 FLR 244.

 5   Noting that at the time the sole purpose test prevailed but the categories of documents identified remain apposite; see for example Waterford v Cth (1987) 163 CLR 54 at 87 and Hartogen Energy Ltd (in liq) v Australian Gas Light Co (1992) 36 FCR 557 at 561.

 6   [1979] FCA 33 at [5]; (1979) 36 FLR 244 at 245-246.

 7   Ibid at [5]; at 246.

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

 9   Ibid.

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

 11   Noting that the Evidence Act applies to all proceedings in a federal court; that federal court is defined in the dictionary attaching to the Evidence Act as a including a person or body (other than a court or magistrate of a State or Territory) that, in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence and section 591 of the Act; and that the extended operation of certain provisions of the Evidence Act in s.5 does not include the client legal privilege provisions found in Division 1 of Part 3.10.

 12   This is apparent from the letter of engagement sent by solicitors for DP World to Mr Gunzburg dated 3 June 2014.

 13   See Annexures GM – 16, GM – 17 and GM-18 to the witness statement of Glenn McCluskey dated 22 May 2014 [sic].

 14   Witness statement of Glenn McCluskey dated 22 May 2014 [sic] at [31 g)], Annexure GM-19.

 15   Bartolo v Doutta Galla Aged Services Ltd [2014] FCCA 1517 at [82]ff. and the authorities cited therein.

 16   Ibid at [84].

 17   Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247 at [30(8)].

 18   The Commissioner of Taxation of the Commonwealth of Australia v Pratt Holdings Pty Ltd [2015] FCA 1247 at [30 (3)].

 19   Ibid.

 20   Ibid at [30(4)].

 21   Applicants' submissions – DP World claim of privilege at [22].

 22   The Commissioner of Taxation of the Commonwealth of Australia v Pratt Holdings Pty Ltd [2015] FCA 1247 at [30 (5)] and the authorities referred to therein; see also Carnell v Mann (1998) 89 FCR 247.

 23   Witness statement of Glenn McCluskey dated 22 May 2014 [sic], GM-17 email dated 5 June 2014 at 2:11 pm.

 24   Ibid, email date 5 June 2014 at 2:59 pm.

 25   Ibid, email date 5 June 2014 at 6:41 pm.

 26   Ibid, email dated 6 June 2014 at11:01 pm.

 27   Witness statement of Glenn McCluskey dated 22 May 2014 [sic], GM-16.

 28   cf. Brown v Bluescope Steel Limited [2005] AIRC 955.

 29   Witness statement of Glenn McCluskey dated 22 May 2014 [sic] at [32].

 30   [2015] FCA 51.

 31   Reply submissions of DP World regarding privileged documents at [20].

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