Alfred v Primmer
[2008] FMCA 235
•29 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALFRED v PRIMMER & ORS | [2008] FMCA 235 |
| INDUSTRIAL LAW – PRACTICE & PROCEDURE – Discovery of documents – notice to produce – privilege – confidentiality – documents and communications brought into existence because Australian Building and Construction Commission (“ABCC”) assisted a building industry participant in proceedings attracted common interest privilege – documents were confidential notwithstanding that they might have to be provided at a later date to other Commonwealth bodies – documents copied by ABCC to the Department of Employment and Workplace Relations by reason of Attorney-General’s Legal Services Directions were subject to common interest privilege – ABCC’s right to claim privilege may be asserted by an ABCC Inspector – legal professional privilege attaches to communications brought into existence for the purpose of obtaining or giving legal advice on reasonably anticipated legal proceedings – those officers of an organisation such as the ABCC who are charged with the responsibility of gathering evidence for proceedings are the ones whose anticipation of legal proceedings will be relevant to a determination of a claim for litigation privilege – privilege attached to communications passing between the applicant and third parties for the dominant purpose of obtaining legal advice. |
| Workplace Relations Act 1996, ss.800, 807 Building and Construction Industry Improvement Act 2005, ss.10, 48, 59 Attorney-General’s Legal Services Directions 2005 (Cth), cl.10 |
| Esso Australia Resources Ltd v Commissioner of Taxation (Commonwealth) (1999) 201 CLR 49 Grant v Downs (1976) 135 CLR 674 Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266 AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571 Bulk Materials (Coal Handling) Services Pty Ltd v Coal & Allied Operations Pty Ltd (1988) 13 NSWLR 689 ACCC v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] FCA 1328 Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (ACCC) (2007) 161 FCR 122 Pratt Holdings Pty Limited v Commissioner of Taxation (2004) 136 FCR 357 | ||
| Applicant: | GREGORY CHARLES ALFRED | |
| First Respondent: | PETER PRIMMER |
| Second Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| Third Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH) |
| File Number: | SYG 1222 of 2007 |
| Judgment of: | Cameron FM |
| Hearing dates: | 11 & 31 October 2007, 28 November 2007 |
| Date of Last Submission: | 20 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 29 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr. I. Neil S.C. with Mr. C. Bolger |
| Solicitors for the Applicant: | Bartier Perry |
| Counsel for the Respondents: | Mr. J. H. Pearce |
| Solicitors for the Respondents: | Taylor & Scott |
ORDERS
The respondents’ application in a case dated 18 September 2007 be refused.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1222 of 2007
| GREGORY CHARLES ALFRED |
Applicant
And
| PETER PRIMMER |
First Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
Second Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH) |
Third Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings the applicant, an Australian Building and Construction Inspector, alleges that the first respondent, for whose conduct the second and third respondents are also alleged to be liable, advised and encouraged Camarda & Cantrill Pty Limited (“C&C”), a building and construction company, to not engage Fineline Painting (Aust) Pty Limited (“Fineline”) to work, and to prevent Fineline from continuing to work, on the second stage of the Kiama High School redevelopment project at Kiama, south of Wollongong (“Kiama High School Project”). It is alleged that this conduct breached s.800(1)(a) of the Workplace Relations Act 1996 (“Act”).
These reasons deal with an application by the respondents to inspect discovered documents over which the applicant claims privilege.
Discovery was ordered by Emmett FM on 7 June 2007 and the applicant filed his verified List of Documents on 28 August 2007. Subsequently an Amended List of Documents and a Further Amended List of Documents have been filed. On 19 September 2007 the respondents filed an Application in a Case seeking orders that they be permitted to inspect documents which were or ought to have been discovered by the applicant. The respondents also served a Notice to Produce dated 19 September 2007 requiring production to the Court of documents specified in the Application in a Case. A second Notice to Produce was subsequently served requiring production to the Court of certain other documents, largely being documents referred to by the applicant in his affidavit sworn 28 September 2007 which had been filed in response to the Application in a Case.
The documents sought by the respondents in the two Notices to Produce were:
First Notice to Produce
1. Documents discovered by the Applicant on 28 August 2007 pursuant to the orders of Federal Magistrate Emmett made on 7 June 2007 described in Schedule 1 Part 2 of the List of Documents filed by the Applicant in the proceedings herein which were brought into existence before 12 April 2007;
2. Any electronic record of interview or signed or unsigned statements of Peter Camarada [sic], Glenn Thomas, Paul Gurr, Scott Norrie, Kim Richard McDonald, Ian Kennedy and Justin Kennedy describing or related to factual matters described in the Amended Statement of Claim SYG 1222 of 2007 which were brought into existence before 12 April 2007;
3. Notebook entries of members of the Office of the Australian Building & Construction Commissioner describing or relating to factual matters described in the Amended Statement of Claim in SYG 1222 of 2007 including but not limited to notebook entries of Simon Brodie and “Jodie” which were brought into existence before 12 April 2007;
4. Documents produced to the Applicant in response to various s.59(5)(e) Notices served in relation to factual matters described in the Amended Statement of Claim SYG 1222 of 2007;
5.Documents in Categories 1 to 8 of Issues for Discovery defined by letter of 8 August 2007 from Taylor and Scott to Messrs. Bartier Perry Purcell;
6. Any brief of evidence prepared for internal lawyers at the BIIC office in relation to factual matters described in the Amended Statement of Claim SYG 1222 of 2007;
7. Any brief of evidence prepared for external lawyers by the BIIC Office in relation to factual matters described in the Amended Statement of Claim SYG 1222 of 2007.
Second Notice to Produce
(a) Original and/or copies of all documents, memoranda, reports, notes, records (including electronic records and records stored in computerised form) or any other written material describing, considering, analysing, making recommendations, or recording administrative decisions in relation to or in consequence of the Notice of Motion and decision of the Federal Court in A & L Sylvestri Pty Ltd & Ors v CFMEU [2006] FCA 1328.
(b) Original and/or copies of all documents, memoranda, reports, notes, records (including electronic records and records stored in computerised form) or any other written material relating to or evidencing:
(i) Administrative decision made to institute proceedings SYG 1222 of 2007;
(ii) Counsel’s brief referred to in paragraph 11 of the affidavit of Gregory Charles Alfred sworn on 28 September 2007 (the Alfred affidavit);
(iii)The ABCC file which contains confidential communications between the ABCC and its legal representative referred to in paragraph 11 of the Alfred affidavit;
(iv) The legal retainer between Craig Bolger of Counsel and any person acting on behalf of the office of the Australian Building & Construction Commissioner;
(v) The conversation between Gregory Alfred and Ross Dalgleish referred to in paragraph 19 of the Alfred affidavit;
(vi) The conversation between Gregory Alfred and Ross Dalgleish referred to in paragraph 21 of the Alfred affidavit;
(vii) The conversation between Gregory Alfred, Ross Dalgleish and Jodie McEwen referred to in paragraph 23 of the Alfred affidavit;
(viii) The conversation between Ross Dalgleish and Craig Bolger referred to in paragraph 23 of the Alfred affidavit;
(ix) The conversation between Gregory Alfred, Ross Dalgleish and Elizabeth Hayes referred to in paragraph 27 of the Alfred affidavit;
(x) The brief referred to in paragraph 29 of the Alfred Affidavit;
(xi) The instructions referred to in paragraph 31 of the Alfred affidavit;
(xii) The request for advice referred to in paragraph 38 of the Alfred affidavit;
(xiii)The advice referred to in paragraph 38 of the Alfred affidavit;
(xiv) The request of Counsel referred to in paragraph 39 of the Alfred affidavit;
(xv) The request of Counsel referred to in paragraph 52 of the Alfred affidavit;
(xvi) The brief referred to in paragraph 55 of the Alfred affidavit;
(xvii)The brief referred to in paragraph 57 of the Alfred affidavit.
Documents have been produced in answer to the calls made on those Notices to Produce and the applicant claims privilege over certain of them which have been identified as Bundles 2, 3, 4, 5 and 6. The respondents no longer seek inspection of Bundle 4, which is the brief held by junior counsel for the applicant.
Background facts
Dalgleish affidavit, 10 October 2007
In his affidavit sworn 10 October 2007 Ross Alan Dalgleish deposes that he is responsible for the conduct of the legal section of the Australian Building and Construction Commission (“ABCC”), reporting directly to the Australian Building and Construction Commissioner (“Commissioner”), and that he has responsibilities including overseeing and directing ABCC’s involvement and intervention in legal proceedings. He holds a practising certificate issued by the Law Society of New South Wales.
In his affidavit Mr Dalgleish refers to assistance given by the ABCC to the Building Industry Specialists Contractors Organisation of NSW (“BISCO”) concerning proceedings in mid-2006 in the New South Wales Industrial Relations Commission which involved both Fineline and the CFMEU (“Dispute Proceedings”). Mr Dalgleish deposes that on or about 26 July 2006 he retained Mr Bolger of counsel to advise him, and through him the Commissioner, in relation to the issues raised in the Dispute Proceedings and in documents provided to him by BISCO in the Dispute Proceedings, and also to provide legal assistance and advice to BISCO and Fineline in relation to those proceedings.
Dalgleish affidavit, 22 October 2007
In his affidavit sworn 22 October 2007 Mr Dalgleish says that at about 5pm on 12 October 2006 he received and listened to a telephone message from an officer of BISCO recording a complaint about the conduct of the first respondent, Mr Primmer, in respect of Fineline’s participation in the Kiama High School Project. Later that day, Mr Dalgleish discussed that complaint with the applicant, Mr Alfred, who gave him a copy of a facsimile of that date from Fineline. Mr Dalgleish deposes that by about 6pm that evening he had formed the view that there might be a good case for an injunction which, in the circumstances, would need to be commenced urgently. For that reason he gave a direction that, if possible, affidavits should be taken from potential witnesses so that they might be used in court. As it turned out, statements rather than affidavits were taken. Mr Dalgleish further formed the opinion that counsel should be briefed to provide advice in relation to the complaint including advice as to the institution and conduct of proceedings in relation to the subject matter of the complaint and advice as to evidence.
Following internal ABCC discussions on Friday 13 October 2006 on the subject of whether proceedings should be initiated, Mr Dalgleish spoke to Mr Bolger about his availability to be briefed on an urgent basis. At about lunchtime that day the two men met and discussed the matter. At that time, Mr Bolger was retained by Mr Dalgleish on behalf of the ABCC
… for the purposes of providing the Legal Advice, and … to become involved, with the assistance of ABCC inspectors, in interviewing witnesses and settling their draft statements on the following Monday, 16 October 2006.
After the obtaining of evidence and the provision of a draft advice by Mr Bolger, Mr Dalgleish decided that no proceedings for urgent injunctive relief should be commenced but he gave instructions that preparation for the commencement of what would become these proceedings should continue. Mr Dalgleish deposes that on 6 February 2007 the ABCC decided to institute these proceedings.
Mr Dalgleish deposes that, as far as he is aware, all documents that were created or received in relation to or in the course of the investigation of the complaint from the point when Mr Bolger was briefed were kept confidential except to the extent that they were disclosed, for the purposes of the proceedings, to counsel, external solicitors instructing in the matter, the Commissioner, Mr Dalgleish and other officers or employees for the ABCC
… as required for the purpose of obtaining and considering the Legal Advice and instituting and conducting legal proceedings.
Dalgleish evidence, 28 November 2007
Mr Dalgleish said that the sufficiency of evidence was usually the subject of external counsel’s advice. This advice went to the ABCC’s prosecutions committee which would consider that advice and public interest considerations concerning whether to launch a proceeding.
As far as Mr Dalgleish was concerned, by 17 October 2006 there was more of a “wait and see” attitude in terms of whether Fineline would be ejected from the Kiama Public School Project site. Even so, he said that urgency had not evaporated because he still wished to be in a position to apply immediately for an interlocutory injunction on an urgent basis. He wished to be in a position where, should anything develop, the ABCC was in a position to act upon it. There was also the prospect of penalty proceedings under the Building and Construction Industry Improvement Act 2005 (“BCIIA”).
Mr Dalgleish was also cross-examined on whether the documents which were prepared might, in some circumstances, be provided to other Commonwealth bodies for other purposes.
Alfred affidavit, 28 September 2007
In his affidavit sworn 28 September 2007 Mr Alfred deposes to having received a voicemail message from Norman Mogg of Fineline on Thursday 12 October 2006 complaining about Mr Primmer’s conduct in relation to the Kiama High School Project. Later that day, Mr Alfred had a discussion with Mr Dalgleish concerning the complaint he had received from Mr Mogg, at which time he showed Mr Dalgleish documents he had received from Mr Mogg. That same day, Mr Dalgleish told Mr Alfred that the circumstances were such that the Commission should consider taking injunctive action against Mr Primmer.
On the morning of the next day, Friday 13 October 2006, Mr Alfred met with Mr Dalgleish and Inspector McEwen of the ABCC at which time Mr Dalgleish instructed Mr Alfred and Ms McEwen to obtain affidavits from witnesses “with a view to obtaining advice on taking urgent injunctive proceedings”. Mr Alfred deposes that it was either that day or the day before, in his presence, that Mr Dalgleish contacted Mr Bolger of counsel to inquire as to his availability to accept a brief. In a meeting at about 4:30pm on 13 October 2006 Mr Dalgleish advised Mr Alfred that Mr Bolger had been briefed and would attend the Commission premises the following Monday. Mr Alfred further deposes that following one of the meetings on Friday 13 October 2006, presumably the first of the two meetings, he made arrangements for witnesses to attend the office of the ABCC, three of whom did attend on Monday 16 October 2006. Mr Bolger attended the ABCC’s premises that day as well.
On 16 October 2006 Mr Alfred interviewed two witnesses and Ms McEwen interviewed a third. Mr Alfred deposes that their draft statements were provided to counsel that day for advice in relation to the commencement of urgent proceedings for injunctive relief against Mr Primmer and the CFMEU, the second respondent in these proceedings, by reason of perceived breaches of the BCIIA and the Act.
Alfred evidence, 31 October 2007 and 28 November 2007
Mr Alfred gave evidence that the documents which he collected and prepared from 13 October 2006 onwards were collected and prepared for the purposes of obtaining advice from counsel in relation to the taking of urgent injunctive proceedings although, at the time the documents were prepared, no decision to commence such proceedings had been made. He was unable to say in respect of some of the documents of which access and inspection is sought that they were sought at the request of counsel, notwithstanding that they had been obtained as part of the process of collecting information for proceedings for injunctive relief.
Mr Alfred said that by the time he commenced taking statements (on 16 October 2006) the possibility of taking urgent injunctive proceedings was, to him, very real. Even so, by 17 October 2006 when he took a statement from Paul Gurr, any urgency had evaporated and that statement was taken for the purpose of investigating breaches of s.807 of the Act as, indeed, were all statements taken after 17 October 2006.
Notwithstanding searching cross-examination, Mr Alfred was unshaken in his evidence that the statements obtained were taken for the purposes of him obtaining legal advice about litigation on breaches of the BCIIA and the Act. As far as Mr Alfred was concerned, he had taken a view, together with Mr Dalgleish, that proceedings would be instituted very early on, although it should be noted that the ultimate decision to take proceedings was made by a committee of which Mr Alfred was not a member.
Submissions
Applicant respondents
As to the documents relating to the Dispute Proceedings it was submitted that any claim for privilege in relation to communications created in order to provide legal assistance and advice to BISCO and Fineline would only be available to BISCO and it had made no such claim. It was further submitted that, as the documents passed between BISCO and Mr Dalgleish in circumstances where the latter was free to use the information contained in the documents for any purpose, they could not be considered to be confidential communications.
It was further submitted that the evidence in support of the claim of privilege was insufficient to sustain the claim and, in any event, a number of documents were not communications between the legal adviser and the client nor was it apparent that they were communications giving instructions or information for the purposes of obtaining legal advice.
As to the complaint of October 2006, the respondents characterised Mr Alfred’s evidence as follows:
a)on 12 October 2006 he formed the view that the complaint was one in respect of which urgent injunctive relief would be needed;
b)during the investigation into the events the subject of these proceedings various documents were created, collected, prepared and received, for the purpose of obtaining legal advice in relation to urgent injunctive relief or the possibility of seeking urgent injunctive relief, although as at 12 October 2006 no decision had been taken to seek such relief;
c)on 13 October 2006 Mr Alfred commenced collecting and preparing documents for the purpose of obtaining legal advice in relation to urgent injunctive relief or the possibility of seeking urgent injunctive relief although he was not aware of any decision having been taken at that time to seek such relief;
d)on 13 October 2006 and 16 October 2006 Mr Alfred requested documents from third parties for the purpose of collecting and preparing documents to obtain legal advice in relation to injunctive relief or the possibility of taking urgent injunctive relief although at that time no decision to seek such relief had been taken;
e)by 12 December 2006 Mr Alfred’s purpose in collecting and preparing documents was to obtain legal advice about the possibility of litigating under s.807 of the Act;
f)Mr Alfred’s purpose in preparing statements and supplementary statements from various witnesses between 13 October 2006 and 11 December 2006 was to obtain legal advice about the possibility of instituting proceedings under the Act; and
g)the brief prepared on 16 October 2006 for Mr Bolger was regularly updated thereafter in order to obtain advice about the possibility of litigating under the Act.
The respondents submitted that the Court should not be satisfied that Mr Alfred received oral instructions from Mr Dalgleish on 13 October 2006 to obtain affidavits, noting that this instruction was never implemented. It was further submitted that the Court should not be satisfied that the real reason why Mr Alfred did not prepare affidavits on 16 October 2006 was the lack of a suitable precedent document, as he said in his evidence it was, the more likely reason being that the prospects of taking urgent injunctive relief under the BCIIA had “evaporated” early on the morning of 16 October 2006.
It was submitted that Mr Alfred’s evidence that he gave Mr Bolger documents for the purposes of obtaining advice contradicted his own evidence that he had no authority to obtain legal advice from any non-ABCC lawyer and there was no evidence that Mr Bolger had any retainer to provide advice in relation to breaches of the Act on 16 October 2006 or at any time in that year. It was submitted that Mr Dalgleish’s evidence as to the extent of Mr Bolger’s brief was that it was limited to proceedings under the BCIIA and it was submitted that the Court should not believe that any statements provided to Mr Bolger on 16 October 2006 were provided for advice on the Act.
It was submitted that the Court should not believe Mr Alfred’s evidence as to his purpose on 16 October 2006 in so far as it is alleged to have related to breaches of the Act or his evidence that supplementary statements were collected at the request of counsel rather than as part of his investigative duty because there were no entries in his diary corroborative of his oral evidence to this effect. It was further submitted that it might be assumed that on or about 16 October 2006 an informal decision had been taken by Mr Alfred, in consultation with Mr Bolger, that urgent injunctive relief was no longer to be anticipated, yet no decision had been taken at that point to initiate any other legal action with the consequence Mr Alfred was operating thereafter in an investigative mode until the end of 2006.
On 14 November 2006 Mr Alfred served Justin Kennedy with a notice under s.59(5)(e) of the BCIIA which it was submitted may only be issued for compliance purposes rather than for prosecution or enforcement purposes. It was submitted that this fact, together with his evidence, confirmed that Mr Alfred was performing an investigative role at that time. It was noted that Mr Alfred’s evidence was that the interview with Mr Thomas was for the purpose of investigating whether there had been a breach of s.48 of the BCIIA and that all the other interviews after 17 October 2006 were for the purpose of investigating whether there had been breaches of s.807 of the Act.
It was submitted that litigation privilege does not attach to any documents other than those created after 14 December 2006 because it was not proved that legal proceedings were reasonably anticipated at the time the documents were created or that they were created for the dominant purpose of the applicant being provided with professional legal services.
The respondents submitted that ultimately the prosecutions committee must be “the mind” of the ABCC for the purposes of assessing whether the ABCC reasonably anticipated litigation, and there was no evidence that the committee had turned its mind to the question of initiating proceedings much prior to 6 February 2007.
Respondent applicant
As to the Dispute Proceedings it was submitted that the documents which related to those proceedings had been obtained for two purposes. The first purpose was to provide legal advice to Mr Dalgleish and through him to the Commissioner in relation to the issues raised in the Dispute Proceedings including the construction of the Act. The second purpose was for Mr Bolger to provide legal advice and assistance to BISCO and Fineline, on behalf of the ABCC, in relation to matters raised by a notice of motion in the Dispute Proceedings. This second purpose was authorised by s.10 of the BCIIA.
It was submitted that the documents relating to the Dispute Proceedings fell into three categories, namely:
a)documents being or recording communications between Messrs Dalgleish and Bolger;
b)documents being or recording communications between Mr Warren of BISCO and Mr Bolger and copied or sent to Mr Dalgleish to advise him as to the issues raised by the Dispute Proceedings as well as to report to him on the support being given by the ABCC to BISCO and Fineline; and
c)documents being or recording communications between Mr Dalgleish and an officer of the Department of Employment and Workplace Relations (“DEWR”) arising out of the support being given to BISCO and Fineline and as required by cl.10 of the Attorney-General’s Legal Services Directions 2005, in respect of which the ABCC and DEWR shared a common interest.
It was submitted that at least the dominant purpose for which the documents were brought into existence was to obtain legal advice from Mr Bolger:
a)for Mr Dalgleish and through him the ABCC as to issues raised in the dispute proceedings, including construction of the Act; and
b)for Mr Dalgleish and the ABCC, as well as for BISCO and Fineline, in relation to the support being given by the ABCC to BISCO and Fineline in the Dispute Proceedings. It was submitted that the ABCC, BISCO, Mr Warren of BISCO, Fineline and DEWR each had a common interest in relation to the advice.
As to documents created as a result of the complaint made in October 2006, it was submitted that the dominant purpose for which each document came into existence after 12 October 2006 was to obtain legal advice and with a view to using it in, and to obtain legal advice about, anticipated legal proceedings. It was submitted that the ABCC and its officers and employees, including Messrs Dalgleish and Alfred, all have a relevant common interest and a shared statutory duty of confidentiality.
It was submitted that Mr Dalgleish’s state of mind was the determinative one for present purposes even though a final, formal decision as to whether legal proceedings would be instituted was made by a committee. It was submitted that the dominant purpose for which Mr Dalgleish directed the documents be produced or collected in relation to the complaint was so that they could be provided to Mr Bolger for him to provide legal advice in relation to the complaint and for use in the conduct of legal proceedings which might arise out of it.
It was submitted that the unchallenged evidence was that Mr Dalgleish and the applicant had formed the view that there was at least a reasonable or real probability that legal proceedings would be instituted with the consequence that each document was privileged.
The applicant submitted that a distinction between the purposes of an investigation on the one hand and of advice on litigation on the other hand was neither logically nor legally necessary. It was submitted that even though as of 12 October 2006 the evidence gathering process had just begun and an enquiry into the facts of the complaint was being commissioned, the results were to be given directly to a lawyer for legal advice and for use in anticipated legal proceedings.
The applicants submitted that the following was the chronology of events:
(a)On 12 October 2006, Alfred received a telephone call from Norman Mogg (“Mogg”), a building industry participant, regarding a complaint concerning conduct of the first respondent at a building site in Kiama.
(b)Later on 12 October 2006, at approximately 5pm, Dalgleish listened to a telephone message left by Warren concerning a complaint made by Mogg to Warren concerning the same conduct.
(c)Later on 12 October 2006, Dalgleish and Alfred discussed these events, including the document that had been supplied to Alfred (Annexure B to Alfred’s affidavit of 28 September 2007).
(d)By about 6pm on 12 October 2006, Dalgleish formed the opinion that there was a real and immediate prospect that proceedings for injunctive relief in relation to the first respondent’s conduct would be commenced urgently.
(e)He communicated this opinion to Alfred, whose opinion was to the same effect.
(f)At approximately 6:07pm on 12 October 2006, Dalgleish sent an email to Mr Trevor Young, the Director Northern of the ABCC, in which he stated, “This looks to me like it may be a good case for an urgent injunction under s.39 BCII on the basis of a threat of unlawful industrial action”.
(g)As a result, Dalgleish formed the view that “every step that was to be taken in relation to the complaint should be taken in such a way that it could be used in or for the purposes of any such proceedings or for the purpose of obtaining legal advice about such proceedings”.
(h)For this reason, Dalgleish directed “that, if possible, affidavits should be taken from potential witnesses at first instance, so that they might be used in court, rather than, as would more usually be the case, taking witness statements”.
(i)This direction was communicated to Alfred at a meeting at about 9:45am on 13 October 2006.
(j)During the evening of 12 October 2006 Dalgleish also formed the opinion that counsel should be briefed to provide legal advice to the Commissioner and the officers and employees in the ABCC (including Dalgleish) “in relation to the [C]omplaint, including legal advice as to the institution and conduct of legal proceedings in relation to the subject matter of the [C]omplaint, including as to evidence that would be required for the purposes of providing advice as to whether and for what relief any such legal proceeding should be instituted, and of conducting those legal proceedings”.
(k)To this end, Dalgleish raised the matter with Bolger during the morning of 13 October 2006, and, during a later conversation about lunchtime on that day, retained him to provide the advice described in (j), and instructed him that he was “to become involved, with the assistance of [inspectors such as Alfred], in interviewing witnesses and settling their draft statements”.
(l)After the meeting with Dalgleish on 12 October 2007, Alfred and those officers and employees of the ABCC who were working with him began to collect and prepare documents for the purpose of obtaining legal advice and made some arrangements for potential witnesses to attend the office of the ABCC in Sydney to be interviewed.
(m)The applicant, as a result of information he had received had concerns that the first respondent was going to “escalate the matter”.
(n)Three witnesses attended the offices of the ABCC on Monday 16 October 2006, Mogg, Mr Scott Norrie from Camarda & Cantrill Pty Ltd (“C&C”) and Mr Glenn Thomas also from C&C. Statements were taken from the witnesses by the applicant with the assistance of another ABC Inspector, Jodie McEwen. On Monday 16 October 2006, Bolger also attended the offices of the ABCC. The draft statements were provided to Bolger.
(o)On 17 October 2006 Mr Alfred with another ABC Inspector, Scott Brodie, conducted further interviews and prepared further statements at the request of Counsel.
(p)On 6 November 2006 Dalgleish was provided with a draft memorandum of advice from Bolger for the purposes of discussion at a conference between Bolger, Alfred and a lawyer attached to the ABCC, Ms Elizabeth Hayes, on Friday 10 November 2006.
(q)Later on 6 November 2006 Dalgleish decided that no proceedings should be commenced for urgent injunctive relief, and gave a direction to instead continue preparations for the commencement of what have become the current proceedings.
(r)On 10 November 2006 Dalgleish instructed Bolger to finalise his written advice and commence drafting the originating process for the current proceedings.
(s)On 6 February 2007 a formal decision was made to institute the current proceedings.
(t)Bartier Perry, solicitors, were instructed by the ABCC to be the external solicitors on the record on about 13 February 2007.
(u) The current proceedings were commenced on 16 April 2007.
(Footnotes omitted.)
Consideration
Dispute Proceedings
Once BISCO brought the Dispute Proceedings to the attention of Mr Dalgleish and the ABCC it is apparent that Mr Dalgleish sought the advice of Mr Bolger and that Mr Bolger provided advice which was shared between Mr Dalgleish on behalf of the ABCC and Mr Warren on behalf of BISCO and Fineline and with DEWR. I am satisfied that all communications subsequent to the initial communication from Mr Warren of BISCO and falling within the terms of the Notices to Produce were brought into existence for the dominant, if not sole, purpose of giving or obtaining legal advice: Esso Australia Resources Ltd v Commissioner of Taxation (Commonwealth) (1999) 201 CLR 49; Grant v Downs (1976) 135 CLR 674.
Although the affidavit and oral evidence of Mr Dalgleish on this subject is sparse, nevertheless the circumstances to which he has deposed show that the communications were created for one or more privileged purposes. In reaching this conclusion I have approached the matter as a question which must be determined objectively and which will not necessarily be determined by the evidence of the person who caused the communications to be brought into existence: Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266 per Kenny J at 278 [30]; AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571 per Young J at [110]. I have taken the opportunity to inspect the relevant documents which were produced to the Court and that inspection confirms my view that the communications in question were brought into existence in circumstances attracting legal professional privilege.
Regardless of the purposes for which the documents may have been created, the respondents submitted that the provision of these documents to Mr Dalgleish in circumstances where they might, at some later point, have been communicated to other parties, such as the ACCC or persons preparing the ABCC’s annual report, demonstrates that they were not so confidential as to meet that threshold criterion of a claim for privilege. However, the mere fact that a person may be entitled, or in some circumstances obliged, to supply privileged documents to a third party does not mean that they are not confidential. Confidentiality may be lost if documents are, in fact, provided to such third parties, but there is no evidence of that happening in this case except in relation to DEWR, which is discussed further below. Additionally, provision of documents to a third party because of an obligation to do so does not evidence a lack of confidentiality. Rather, it tends to reinforce the fact that the documents are confidential, at least until that point when they must be handed over, and possibly thereafter as well, depending on the circumstances.
As to the documents which were shared with DEWR, Mr Dalgleish says in para.15 of his affidavit of 10 October 2007 that these communications were made pursuant to cl.10 of the Attorney-General’s Legal Services Directions 2005 which obliged the ABCC to consult DEWR in respect of any request for legal advice on the interpretation of the Act. In such circumstances, where both agencies shared a common interest in the interpretation of the Act, it cannot be suggested that provision of those documents to DEWR indicates a lack of confidentiality.
The respondents’ submission that only BISCO can make a claim for privilege over the documents created for the purpose of the Dispute Proceedings themselves fails to acknowledge the common interest which Fineline, BISCO and the ABCC had in the outcome of those proceedings. Given that those parties had a common interest in the outcome of the Dispute Proceedings, then any one of them can assert the claim for privilege over the documents in question: Bulk Materials (Coal Handling) Services Pty Ltd v Coal & Allied Operations Pty Ltd (1988) 13 NSWLR 689 at 695G. The fact that none of them is a party to these proceedings does not have the asserted consequence that there can actually be no claim for privilege made in these proceedings. It is sufficiently clear that the applicant, an ABCC Inspector, makes the claim on behalf of the ABCC and I am of the view that he is entitled to do so as its representative.
A cognisable claim for privilege has been made and I am of the view that those documents which relate to the Dispute Proceedings are privileged.
2006 complaint
The essence of the respondents’ submissions is that there could have been no reasonable contemplation of litigation until after 14 December 2006 given that, amongst other things, it can be inferred that Messrs Dalgleish and Alfred’s initial intention to bring proceedings for injunctive relief had disappeared within days of that intention initially forming. The respondents submit that, in any event, the objective evidence did not support there having been such an intention in the first place given that Mr Alfred prepared witness statements rather than affidavits in the initial stages of the matter and a s.59(5)(e) notice was later served on Justin Kennedy which was said to be evidence that Mr Alfred was not, at that point, acting in the context of reasonably contemplated penalty proceedings but was instead undertaking an investigation.
Citing ACCC v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 per Goldberg J at 545, the respondents submit that the investigative role is anterior to and a pre-cursor of the reasonable anticipation of proceedings which attracts litigation privilege. It was submitted that if evidence is required for the proceedings it can be expected that, in the ordinary course, until that evidence gathering process is well advanced, the view that proceedings are reasonably anticipated would not be able to be formed.
That is not necessarily so. It may be clear from early events that proceedings may well be commenced and, thereafter, it is simply a matter of gathering the evidence to prosecute or meet such proceedings. The body of authorities arising out of insurance indemnity refusals is a good example of this reality, for instance, Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44. Further, in Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 the Victorian Court of Appeal expressed the view that Goldberg J’s proposition in Australian Safeway Stores, referred to above at [45], was too widely stated. I also note the respondents’ reference in argument to A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] FCA 1328 but am of the view that it is distinguishable from this case.
An objective consideration of the circumstances surrounding the bringing into existence of the communications relating to the 2006 complaint satisfy me that legal proceedings were reasonably contemplated almost immediately upon receipt by Mr Dalgleish of the complaint of 12 October 2006 and that, although it was subsequently decided that an injunction or injunctions would not be sought, that intention was replaced by the proposal to bring these proceedings.
The parties made submissions as to the proper meaning of the concept of the reasonable anticipation or contemplation of proceedings. I note the discussion of this test in Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (ACCC) (2007) 161 FCR 122 at 140 – 141 [68] – [70] which notes that the weight of authority favours a test that there must be a “real prospect of litigation, as distinct from a mere possibility”, rather than that litigation is more probable than not. However, even on the more stringent test, the evidence of Mr Dalgleish satisfies me that litigation was in the reasonable contemplation of the ABCC from 12 October 2006 onwards, notwithstanding that the type of litigation contemplated changed.
I do not accept the respondents’ submissions that Mr Alfred’s failure to take affidavits as he was instructed, instead, taking statements, should satisfy me that there never was an intention to seek interlocutory orders. The urgency with which witnesses were brought into the ABCC offices in order to make their statements belies that submission. Moreover, I do not infer that the form in which the relevant information was recorded necessarily reflects on the purpose for which it was obtained. But in any event, the respondents’ submissions place too much emphasis on the role of Mr Alfred. He was the person who had the day-to-day responsibility for gathering the evidence which was to be used in support of whichever proceedings were ultimately pursued. However, he was not acting on his own initiative. He was acting at the instigation of Mr Dalgleish and I accept that Mr Dalgleish requested and wanted affidavits to be prepared. Indeed, in determining whether litigation was in reasonable contemplation, Mr Dalgleish played a significantly more important role than Mr Alfred.
In fact, in the formation of a view as to whether there was a reasonable apprehension of litigation, it is clear that Mr Dalgleish’s view was of greater practical significance than even the prosecutions committee. In not dissimilar circumstances, Lander J said in the Visy Industries case at 143 – 144 [84], Moore J agreeing:
I agree with Heerey J that it was appropriate to attribute to the ACCC Mr Alexander’s opinion as at 15 December 2004. I reject the applicants’ submission that Mr Alexander’s opinion could not be attributed to the ACCC but that ACCC could only form a view as to the potential for litigation through either a decision of the Commissioners or the knowledge of a Commissioner. It is true, as the applicants have contended, that it is only the Commissioners who can resolve to commence legal proceedings but that does not mean that those who were charged with bringing together the evidence for use in legal proceedings could not reasonably anticipate that those proceedings would be commenced. As Heerey J pointed out, because the law recognises that the privilege commences when there is a reasonable anticipation of legal proceedings, as a matter of logic, that must be a point in time prior to the issue of those proceedings. Therefore, one must look to a point of time anterior to the Commissioners’ determination on 28 November 2005 and must look to the minds of others, other than the Commissioners themselves. In circumstances such as the present case, because the ACCC cannot have a mind of its own, minds which can reasonably anticipate the commencement of legal proceedings must necessarily be of those who are charged with the responsibility of gathering the evidence for those proceedings.
But even were this not so, there is no doubt that counsel was briefed at a very early stage to provide advice and although the respondents submit that the terms and scope of Mr Bolger’s instructions are unknown to them, nevertheless there is no doubt that he was briefed and was involved from the early stages of statement gathering and, subsequently, provided advice. This is not a situation where the Court need be concerned with the provenance of communications in the context of legal advice privilege because here the documents were largely generated by Mr Alfred and his colleagues and, to the extent that they were not, they were nevertheless communications passing between Mr Alfred and third parties for the dominant purpose of obtaining legal advice, with the result that privilege attaches to them: Pratt Holdings Pty Limited v Commissioner of Taxation (2004) 136 FCR 357.
For these reasons, I am satisfied that privilege attaches to the remaining documents.
Conclusion
As I find that the applicant’s claim for privilege in respect of the documents contained in Bundles 2, 3, 5 and 6 is made out, the respondents’ Application in a Case dated 18 September 2007 will be refused.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 29 February 2008
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