DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Application by Mr Benedict Hardless
(AB2018/522)

COMMISSIONER PLATT

ADELAIDE, 1 APRIL 2019

Form F52 application for production of documents – claim of privilege – claim disputed – waiver of privilege – held privilege existed and not waived – application dismissed.

[1] In order to provide context I have set out a summary of the history of this matter to date.

[2] On 3 September 2018, Mr Benedict Hardless lodged a Form F72, a section 789FC application seeking orders to stop bullying.

[3] On 3 September 2018 Ms Stephanie Dewhurst, HR Manager BAE Systems Australia, filed a Form F73 response on behalf of BAE Systems and the persons named.

[4] On 4 September 2018, Mr Benedict Hardless (the Applicant) made a Form F52 application to the Commission (dated 29 August 2019) for orders requiring the production of two documents:

• The investigation report prepared by the Consultant (the Investigation Report); and

• The Culture Plan for the Wagga Wagga site (the Culture Plan).

[5] The substantive application was first listed by the Commission for Conference on 26 September 2019. At that time Mr Hardless was not represented, and was not attending the workplace. Mr Hardless advised he had lodged a workers compensation claim which had been accepted by Employers Mutual NSW Limited (EML) on 22 August 2018. The conference was adjourned until 29 October 2018 so as to ensure that the Applicant was safely able to participate.

[6] On 29 October 2018, Mr Hardless sought that the matter be adjourned for a further period of 12 months. The application was opposed and was listed for Hearing on 2 November 2018.

[7] On 2 November 2018, I declined the adjournment application noting the potential impact on the persons named and my performance obligations under s.577 of the Act, and issued Directions for the Hearing of the matter on 26 – 28 November 2018.

[8] On 5 November 2018, Mr Hardless sought that his Form F52 application be dealt with. On 6 November 2018 Ms Dewhurst advised that BAE Systems and the persons named opposed the application for production of documents on the basis of legal professional privilege.

[9] A Directions Hearing was conducted on 7 November 2018. Ms Erin Hawthorne sought to represent BAE Systems and the persons named, Mr Hardless opposed the application. Permission (as to the production of documents application) was granted pursuant to s.596 of the Act on the basis of complexity and efficiency.

[10] Mr Hardless provided written submissions as to the production of the documents sought on 7 November 2018.

[11] On 8 November 2018, I issued Directions requiring BAE Systems to provide confidential copies of the documents sought to be produced and file submissions as to the basis of their objection by 14 November 2018. The Form F52 was listed for Hearing on 14 November 2018.

[12] On 12 November 2018, Mr Hardless and all of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Mr Benedict Hardless

Details

AGLC: Application by Mr Benedict Hardless [2019] FWC 2114
Case: [2019] FWC 2114
Decision Date: 1 APRIL 2019

CaseChat Overview and Summary

The case before the court was an application by Mr Benedict Hardless for the production of certain documents. The application arose from a dispute between Mr Hardless and another party regarding the disclosure of these documents. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether Mr Hardless had a legitimate claim of legal professional privilege over the documents in question and, if so, whether this privilege had been waived.

The court considered the nature and content of the documents, the circumstances under which they were created, and the relationship between the parties involved. It was established that the documents were prepared by Mr Hardless’s legal counsel for the purpose of providing legal advice. The court found that the documents were indeed subject to legal professional privilege, as they were created in the course of obtaining legal advice. Furthermore, the court determined that there was no evidence of any waiver of this privilege by Mr Hardless. Consequently, the application for the production of the documents was dismissed.

The reasoning of the court was grounded in established legal principles regarding legal professional privilege and the conditions under which such privilege may be waived. The court emphasised the importance of protecting confidential communications between a client and their legal advisor. The final orders of the court were that the application for the production of the documents be dismissed, with each party to bear their own costs of the application.

Orders