Fair Work Commission and legal professional privilege

Although the Fair Work Commission is not bound to apply the rules of evidence in its conduct of cases because the Fair Work Act stupidly says so, the experienced members of the Commission are wary of disregarding them, as appears clear in the following extract of a recent  decision involving the very dry issue of legal professional privilege.

“Consideration

[26] Although the rules of evidence do not apply to the Commission, legal professional privilege is not merely a rule of evidence but also a substantive doctrine of the common law applicable to administrative tribunals, unless expressly excluded by statute. No such exclusion applies to the Commission’s proceedings.

[27] There are three separate categories of legal professional privilege. First, there is ‘advice privilege’, which is attached to confidential written and oral communications passing between a lawyer and the 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. 13

[28] In J-Corp, 14 French J (as his Honour then was) stated:

‘The privilege attaching to statements taken from potential witnesses may not be supportable by public interest considerations of the same order as those enunciated in Grant v Downs in relation to solicitor-client communications although it arises in the context of the solicitor-client relationship. The confidentiality which attends their taking is of a limited character. There is nothing to stop a prospective witness who has given a statement to a solicitor from announcing that fact and the content of his statement to the world at large. In the ordinary course, neither the solicitor nor his client could do anything to prevent that disclosure.’

[29] Mr Vernier submitted that what he described as ‘the Initial Witness Statements’ given to Ashurst were not confidential documents and were therefore not subject to privilege. I do not agree that these documents were not confidential. They contained very sensitive information that was to be used amongst other things to make decisions that could lead to disciplinary action against employees of the respondent. They contained material that had been created for the purpose of advising the client. It would not be correct in this instance to say that the interviewees were entitled to announce the content of the ‘statements’ they gave to Ashurst to the world at large – not only because they were given to a solicitor for the purposes of providing legal advice, but also because of the very nature of that information.

[30] I have had the opportunity to examine all the documents in Categories 1 and 2, together with Ms Srdanovic’s evidence. I am satisfied that all the documents fall within the scope of ‘advice privilege’. In particular all the documents consist of confidential communications passing between Ashurst and the respondent for the dominant purpose of Ashurst providing legal advice to the respondent. As noted above, that advice was in relation to:

‘• The conduct of enquiries for the purpose of preparing a letter (or letters) of allegations;

  • The nature of the investigation process to be undertaken; and
  • Any consequential disciplinary action.’

[31] I am also satisfied that the documents were prepared in circumstances where legal proceedings were anticipated.

[32] If privilege does attach to documents, the privilege may be waived expressly or impliedly.

[33] In DSE, Allsop J 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.’ 15

[34] In Krok, Wigney J stated:

‘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.

Questions of waiver are matters of fact and degree. 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.’ 16 [references omitted]

[35] Mr Vernier submitted in this case that even if the documents are subject to legal professional privilege, that privilege has been waived. He noted that it was clear from the evidence that a number of the allegations contained in the letter of allegations given to the applicant came from information provided by witnesses to Ashurst. This, he submitted, contained ‘partial disclosure’ of some of the some of the documents that contained this information. In particular, he submitted that the respondent had:

  1. a) laid open a purported confidential communication to scrutiny as referred to in DSE;
  2. b) made a partial disclosure of a confidential document in order to achieve some forensic advantage, while claiming privilege and thereby seeking to deny the applicant an opportunity to see the full text of the communication as in Krok; and
  3. c) waived any privilege that the documents containing information gathered from the witnesses that were used to form the allegations letter may have had.

[36] The key principle underlying the concept of waiver is that the party asserting privilege has acted inconsistently with the maintenance of confidentiality over the lawyer-client communications. As stated in Krok, such inconsistency may arise where one party 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. The concept of fairness is integral. As Deane J said in Maurice:

‘Waiver of legal professional privilege by imputation or implication of law is based on notions of fairness. It occurs in circumstances where a person has used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage….Where, however, he does no more than make use of privileged material (e.g. legal advice, expert opinion or statements of potential witnesses) for the purpose of formulating the statement in such a document of the details of the case which he proposes to make, it would be an affront to the ordinary notions of fairness to hold that the effect of his compliance with that procedural requirement was that he has waived his legal professional privilege in relation to such material.’ 17

[37] It is clear from the evidence that the documents that Mr Vernier is seeking were used, at least in part, to determine what allegations would be put to the applicant – not to make findings against her. I cannot see how there is any question of unfairness to the applicant in the respondent using information obtained by their lawyers, not to make findings against her, but simply to tell her what she was alleged to have done, and to give her an opportunity to respond to those allegations.

[38] In these circumstances, I am satisfied that the use of material, obtained by Ashurst in order to provide legal advice, in the letter of allegation given to the applicant, did not involve a waiver of legal professional privilege.

[39] Finally, I deal with the specific request made by Mr Vernier for the file note recording what Mr Donaghey described as the ‘statement’ he gave to Mr Carroll on 16 June 2018. As noted previously, Mr Donaghey said during cross-examination, in answer to a question from Mr Vernier to which the respondent did not object at the time, that he was ‘pretty confident’ that the ‘statement’ he gave Mr Carroll would be ‘very, very similar to the statement I gave on 3 July’ to Ms Bryce.

[40] Mr Vernier submitted that this situation was analogous to that in Divall v Mifsud. 18 In that case, a witness was cross-examined on a privileged statement. The witness was asked to reveal the substance of the privileged statement, which he did. Counsel for the party who called the witness did not object. The Court of Appeal held that privilege had been waived:

‘Although Mr Wilson initially claimed privilege over the statement, he did not object to counsel for Mr Mifsud asking two further questions the answers to which he conceded disclosed the substance of Mr Kent’s statement. His failure to object to those questions meant that the substance of Mr Kent’s statement had been “knowingly and voluntarily disclosed to another person.”’ 19 [references omitted]

[41] I have had the opportunity to examine both the file note recording what Mr Donaghey told Ashurst on 16 June 2018, and Attachment SD-6 to Exhibit 11, which is the statement Mr Donaghey provided to Ms Bryce on 3 July 2018. I am satisfied that the contents of both documents are substantially the same. I do not think that Mr Donaghey’s reference to the first document as his ‘statement’ to Ashurst alters the fact that the substance of the file note was ‘knowingly and voluntarily disclosed’. This puts it in another category than all the other material over which privilege has been claimed.

[42] I consider that the situation is indeed analogous to that in Divall v Mifsud. Accordingly, I order that the respondent provide Mr Vernier with the file note taken by Mr Carroll during his meeting with Mr Donaghey on 16 June 2018 (document 6 in KS-1). No other documents are to be provided, as I am satisfied that they are all covered by legal professional privilege that has not been waived.”

Petrunic v Q Catering Limited T/A Q Catering (2019) FWC 1034 delivered 4 March 2019 per Hamberger SDP