Application by The Australian Retailers Association
[2025] FWC 645
•4 MARCH 2025
| [2025] FWC 645 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.157 – FWC may vary etc. modern awards if necessary to achieve modern awards objective
s.158 – Application to vary or revoke a modern award
s.160 – Variation of modern award to remove ambiguity or uncertainty or correct error
Application by The Australian Retailers Association
(AM2024/9)
Variation at the Commissions own Initiative
(AM2024/33)
Application by Anthony Hicks
(AM2024/26)
Application by The Shop, Distributive and Allied Employees Association
(AM2024/40)
| VICE PRESIDENT GIBIAN | SYDNEY, 4 MARCH 2025 |
Application to vary the General Retail Industry Award 2020 – Order for production made by the Commission as contemplated by s 590(2)(c) of the Fair Work Act 2009 (Cth) – Claim for legal professional privilege – Whether preparatory documents or draft reports prepared by an expert witness subject to legal professional privilege – Whether privilege waived by service of the final report of an expert – Whether reliance on final report inconsistent with maintenance of the privilege – Review of privileged documents – Claim for legal professional privilege upheld subject to some instances in which privilege waived.
Introduction
This decision concerns a claim for legal professional privilege made with respect to documents relating to the preparation of an expert report which a party to proceedings before the Commission intends to rely upon at the hearing of the matter.
The Australian Retailers Association (the ARA) has applied to vary the General Retail Industry Award 2020 (the Retail Award) pursuant to ss 157(1)(a) and 160(1) of the Fair Work Act 2009 (Cth) (the Act). The application sought 17 variations to the Retail Award, most of which remain to be determined and are being heard by a Full Bench of the Commission together with a number of issues identified in the final report of the Modern Awards Review 2023-24.
In the proceedings, the ARA has filed and intends to rely on an expert report prepared by David Rumbens. Mr Rumbens is a partner of Deloitte Access Economics Pty Ltd. He is a qualified economist and the leader of Deloitte’s macroeconomic group in Melbourne. In early October 2024, Mr Rumbens was engaged by the then solicitors for the ARA, Corrs Chambers Westgarth, to prepare an expert report concerning, in broad terms, the workforce demographics, working arrangements, performance, competitiveness and productivity of the retail industry in Australia as well as the expected impacts of the variations sought by the ARA. An expert report prepared by Mr Rumbens was filed on 30 October 2024.
On 4 February 2025, an order for production was issued by the Commission on application by the Shop, Distributive and Allied Employee’s Association (the SDA) directed to Mr Rumbens requiring that he produce certain documents. The order for production required that Mr Rumbens produce to the Commission all documents and/or records evidencing or otherwise recording:
(a)any and all draft reports provided by Mr Rumbens to Corrs Chambers Westgarth and/or the ARA prior to the expert report being filed in the Commission.
(b)any and all communications (letters, emails, text messages) sent or received by Mr Rumbens (or any person acting on his behalf and with his knowledge, approval or authority) pertaining to Mr Rumben’s retainer and the discharge by him of any aspect of that retainer other than Mr Rumben’s letter of retainer dated 9 October 2024 (Exhibit A to the expert report) and a subsequent letter of instructions dated 25 October 2024 (Exhibit C to the expert report) and the attachments in each case thereto.
On 12 February 2025, Deloitte produced a series of documents to the Commission. Of these documents, there were 291 documents in relation to which a claim for legal professional privilege is made. The ARA, through its current solicitors King & Wood Mallesons, claimed legal professional privilege with respect to each of the documents produced. The claim for privilege has been challenged by the SDA. The ARA submits that the Commission should uphold the claim for legal professional privilege because:
(a)the documents are confidential documents which were created for the dominant purpose of the ARA being provided with professional legal services relating to the proceeding; and
(b)the ARA’s filing, on 1 November 2024, of the final expert report of Mr Rumbens dated 30 October 2024 in support did not result in any waiver of the privilege attaching to the Claimed Documents.
The ARA submits that the documents sought by the order for production were prepared for the dominant purpose of the ARA being provided with professional legal services in relation to the proceedings. It says that this applies both to internal documents prepared within Deloitte with respect to the preparation of the report and communications between Mr Rumbens and the ARA’s then solicitors, Corrs. The ARA submits that the privilege attaching to the documents has not been waived by reason of the service of Mr Rumbens’ report. In short, it submits that Mr Rumbens states in the report that he has read and complied with the Federal Court of Australia Expert Evidence Practice Note and set out in the report the assumptions and materials on which he has relied. In those circumstances, it says use of the expert report is not inconsistent with the maintenance of the privilege.
The SDA, for its part, accepts that the documents appear to be privileged but contends that it is reasonable to infer that the communications influenced the content of the report prepared by Mr Rumbens. Further, the SDA submits that a statement that an expert has complied with the Federal Court of Australia Expert Evidence Practice Note does not establish that privilege has not been waived by reliance on the report.
Legal professional privilege
Although the Commission is not bound by the rules of evidence,[1] legal professional privilege is not merely a rule of evidence but a rule of substantive law and an important common law immunity which is not taken to be abrogated by statute except by clear words or by necessary implication.[2] There is no suggestion advanced in this matter that the Act excludes the operation of the doctrine of legal professional privilege in relation to proceedings before the Commission.[3] The consequence is that the Commission is not empowered by s 590 of the Act to require the disclosure of documents attracting legal professional privilege unless the privilege has been expressly or impliedly waived.
Ms Leoncio, who appeared from the ARA, properly pointed to the importance of legal professional privilege and the care that should be taken in assessing whether privilege attaches to particular documents and whether it has been waived.[4] In Glencore International AG v Commissioner of Taxation [2019] HCA 26; (2019) 265 CLR 646, for example, all members of the High Court said:[5]
[21] Legal professional privilege has been described as a right which is fundamental to persons and to our legal system. It has also been described as ‘a practical guarantee of fundamental, constitutional or human rights’. Such descriptions point up the importance of the privilege. They serve to show that it is not merely an aspect of curial procedure or a mere rule of evidence but a substantive right founded upon a matter of public interest. The same distinction has been drawn in New Zealand and the United Kingdom.
[22] What cannot be discerned from these cases is that the ‘right’ spoken of in connection with the privilege is an actionable right. If one asks what this ‘right’ gives to a person, the answer could be stated as ‘a right to resist the compulsory disclosure of information’ or ‘the right to decline to disclose or to allow to be disclosed the confidential communication or document in question’, as the Privy Council and the House of Lords respectively have held. So understood it is a freedom from the exercise of legal power or control, which is to say an immunity, and that is what Daniels Corporation held its true character to be.
The Court explained that the justification for the privilege was not found in the enforcement of a private right but in the public interest in the enhancement of the administration of justice by facilitating the representation of clients by legal advisers.[6] That public interest was said to be paramount to the more general public interest which requires the production of evidence for the purpose of litigation.[7]
A question does arise as to the law to be applied to determining the claim to legal professional privilege made by the ARA. The common law recognises that there are at least two categories of legal professional privilege.[8] First, there is that which is described as “advice privilege” which attaches to confidential written and oral communications passing between a lawyer and the lawyer’s client for the dominant purpose of the lawyer providing legal advice to the client. The second is “litigation privilege” which attaches to a confidential communication between a client and another person or the client’s lawyer and another person for the dominant purpose of the client being provided with professional legal services relating to a current, anticipated or pending legal proceeding.
Sections 118 and 119 of the Evidence Act 1995 (Cth) (the Evidence Act) also make provision with respect to advice privilege and litigation privilege in circumstances in which that Act applies. The ARA relied on litigation privilege. It referred to s 119(b) of the Evidence Act which extends the privilege to “the contents of a confidential document (whether delivered or not) that was prepared for the purposes of the provision of professional legal services relating to legal proceedings. Ms Leoncio suggested that s 119(b) of the Evidence Act has broader operation than the common law principles relating to litigation privilege in that, in the context of an expert report, it extends to documents prepared for the purposes of litigation even if not communicated, or intended to be communicated, to the legal representatives of the client.
The question of whether the Evidence Act is to be applied to determine a claim for legal professional privilege in proceedings before the Commission is uncertain. The Evidence Act applies to all proceedings in a “federal court”.[9] A “federal court” is defined to extend to “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”.[10] Section 591 of the Act provides that this Commission is not required to apply the laws of evidence. In those circumstances, it is difficult to identify a basis upon which the Evidence Act directly applies to the Commission.
It appears to me that, if a claim for legal professional privilege is made to resist production of documents in the context of Commission proceedings, it is to be assessed by reference to the common law. The Commission is not conferred with a power to require the production of documents to which legal professional privilege attaches because it represents a rule of substantive law. If the Evidence Act does not apply to the Commission, the rule of substantive law must derive from the common law and gives rise to an implied restriction on the statutory power conferred on the Commission by s 590 of the Act. Given the conclusions that I have reached, however, nothing turns on the question. To the extent there is any distinction between the approach adopted by the common law and under the Evidence Act to the litigation privilege, it is immaterial in the present matter.
The circumstances in which legal professional privilege attaches to communications between legal representatives of a party to litigation and an expert witness, and documents produced by the expert, has been considered in the authorities. Both the ARA and the SDA referred to the summary of principles given by Lindgren J in Australian Securities & Investments Commission v Southcorp Ltd [2003] FCA 804 which is as follows:
1. Ordinarily the confidential briefing or instructing by a prospective litigant's lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege …
2. Copies of documents, whether the originals are privileged or not, where the copies were made for the purpose of forming part of confidential communications between the client's lawyers and the expert witness, ordinarily attract the privilege …
3. Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness's own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications …
4. Ordinarily disclosure of the expert’s report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents …
5. Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents …
6. It may be difficult to establish at an early stage whether documents which were before an expert witness influenced the content of his or her report, in the absence of any reference to them in the report …
Two of the principles are of particular significance in the present context. Principle 3 suggests that, at common law at least, documents generated unilaterally by an expert and the witness’s own drafts do not attract privilege because they are not, and do not form part of communications.[11] However, a draft report prepared for the purpose of being communicated to legal representatives of a party may attract privilege. The ARA also relied upon s 119(b) of the Evidence Act having broader operation and extending privilege to confidential documents created for the dominant purpose of the client being provided with professional legal services relating to legal proceedings whether communicated or not.[12]
Principle 4 suggests that disclosure of the expert’s report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege if the appropriate inference to be drawn is that documents over which privilege is claimed were used in a way that influenced the content of the report. The SDA relied upon Principle 4 to support a submission that privilege had been waived with respect to all documents sought by reason of reliance on Mr Rumbens’ report. The ARA emphasised that waiver of preparatory documents or communications between an expert witness and legal representatives for a party did not automatically occur by reason of reliance on the final report. In New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258, for example, White J said:[13]
The question is not merely whether it could be said that the privileged materials were used in such a way that they could be said to influence the content of the report, but whether it could be said that they influenced the content of the report in such a way that the use or service of the report would be inconsistent with maintaining the privilege in those materials, such as, where it would be unfair for the party to rely on the report without disclosure of those materials. Where an expert’s report is submitted to a party’s legal advisers so as to be put into a form which will ensure that it is admissible, it can be said that the privileged communications between the expert and the lawyers have influenced the content of the report, in the sense of its form, although not in the sense of the formulation of the substantive opinions expressed by the expert. Likewise, privileged communications between an expert and the party’s lawyers whereby material information is provided to the expert in the form of assumptions or documents may well influence the content of the report. However, an expert’s report is required to state what material and assumptions are relied on. Use of a final report, which refers to such materials and assumptions, is not inconsistent with maintaining confidentiality in the communications which produced the final product.
The ARA submits that the question is not merely whether privileged materials can be said to have influenced the content of the final report, but whether the manner in which the privileged documents influenced the report is inconsistent with maintenance of the privilege. The ARA emphasises that legal professional privilege is an important substantive rule of law and should not lightly be taken to have been waived. In Watkins v State of Queensland [2007] QCA 430; [2008] 1 Qd R 564, Keane JA (with whom Mackenzie J agreed) said:[14]
It must be said, however, that the broad proposition that waiver will be imputed to ensure equality of advantage would mean that, in every case where an expert report is based on instructions as to the factual basis on which expert opinion is sought and the report is relied upon by the party that commissioned it in relation to the negotiation of a legal claim, the other party would have ‘a right’ to see those instructions. There are reasons of principle and authority why I am unable to accept that broad proposition. In terms of principle, it seems to be inconsistent with the High Court's insistence upon the substantive nature of the right to confidentiality involved in legal professional privilege, [Baker v Campbell (1983) 153 CLR 52; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 552 [9]] that the right can be treated as so fragile as to be susceptible of abrogation in consequence of a judicial impression that the other party would be better informed than he or she might be if the confidential information were not provided. It is in the nature of things that a party who enjoys a right to keep information relevant to a forensic contest confidential will also enjoy an advantage over that party’s opponent: the mere existence of that advantage cannot be a reason for the abrogation of the right. It is the abuse of the right by conduct apt to confuse or deceive the opponent which is the basis for an imputed waiver of privilege.
The ARA submits that reliance on an expert’s report is not inconsistent with maintenance of the privilege if the final report clearly states the material and assumptions that were relied upon such that the report contains sufficient information to allow its examination and testing.
Consideration
The ARA submits that all the documents falling within the order for production are subject to legal professional privilege and that no express or implied waiver has occurred. In relation to waiver, its submission is twofold. The ARA submits that Mr Rumbens declares that he has read and complied with the Federal Court of Australia Expert Evidence Practice Note and that, as a result, the Commission should assume that the assumptions and material facts on which his opinion is based are expressed in the report. The ARA also submits that the content of Mr Rumbens’ report is primarily based on identified and publicly available sources of statistical information which it is open to the SDA to contest or examine. In those circumstances, reliance on the report is not inconsistent with maintenance of legal professional privilege.
The primary position of the ARA is that whether the documents attract privilege and whether privilege has, in any respect, been waived can be resolved on the face of Mr Rumbens’ report and without inspecting the documents. The parties accepted that it was open to the Commission to inspect the documents to determine the claim for privilege and no party opposed that course if I felt it was necessary to do so. In New Cap Reinsurance, White J observed:[15]
Following the course taken by Einstein J in Integral Energy Australia v EDS (Australia) Pty Ltd [2006] NSWSC 971, I thought it appropriate to inspect the documents for which privilege is claimed in order to consider whether such documents may have influenced the content of the report. There are limits to whether this is a useful exercise. It would be impossible, as a matter of practice, and inappropriate, as a matter of principle, for a judge to approach that question in the same way as a party might wish to do so if preparing a cross-examination of the expert.
Without any great enthusiasm, I concluded that there was no option but for the Commission to inspect the documents for the purposes of assessing whether the documents were privileged and whether they may have influenced the content of the report in a manner that is inconsistent with maintenance of the privilege. I do not consider that the fact that Mr Rumbens has declared that he has complied with the Federal Court of Australia Expert Evidence Practice Note precludes the possibility that drafts, or other communications have influenced the content of the final report. In INPEX Operations Australia Pty Ltd v AkzoNobel NV (No 2) [2024] FCA 815, for example, Banks-Smith J regarded such statements as relevant to, but not determinative of, whether there has been a waiver of privilege.[16]
Nor do I consider that the nature of Mr Rumbens’ report precludes the possibility that its content was affected by the documents falling within the order for production. Although much of the report refers to statistical data from identified sources, I infer that part of the expertise sought to be relied upon by the ARA is the selection of appropriate and reliable sources of information and drawing inferences from the data referred to. The report does not simply summarise data from other sources. Further, at paragraph [5.2], the final report itself identifies that:
52. In arriving at my conclusions in this matter, I have been assisted by Deloitte personnel who have carried out certain work under my direction. I have reviewed their work in order to form my conclusions. The opinions expressed in this report are my own.
There is nothing wrong with Mr Rumbens relying on information provided to him by others working at his direction in forming his opinions. However, the fact that he has done so raises the possibility that documents falling within the order for production may have influenced his opinions in a manner inconsistent with the maintenance of privilege. Ms Leoncio, who appeared for the ARA, also confirmed that no review of the documents had been conducted with a view to whether they might have influenced the content of the final report.
As a result, I have undertaken the labour of reviewing the documents produced by Deloitte over which privilege is claimed. The documents falling within the order for production fall into three categories:
(a)Draft reports prepared by Deloitte;
(b)Communications between staff of Deloitte, including Mr Rumbens, associated with the preparation of draft reports and the final report; and
(c)Communications between Corrs and staff of Deloitte.
I am satisfied that the documents falling within each category are subject to legal professional privilege in that they are confidential communications prepared for the purposes of the ARA being provided with professional legal services relating to the present proceedings. There is no question that the communications involving Corrs are privileged. I am also satisfied that the draft reports and internal communications within Deloitte were prepared for the purposes of at least potentially being communicated with Corrs. In that respect, I note that the letter of instructions sent to Mr Rumbens indicated that he had been requested to provide a draft report to Corrs in advance of completion of the final report. The internal communications between Deloitte staff are almost all comments or notes on draft versions of the report and prepared for the same purpose. The only possible exceptions are internal planning documents in relation to fees, timelines or setting up meetings which, in my opinion, even if not privileged should not be produced because they are not relevant to any issues in the proceedings.
The remaining question is whether there has been any waiver of privilege by reason of the service of Mr Rumbens’ report. That question turns on whether the documents can be said to have influenced the content of the report (in the sense of the substance of the opinion expressed in the report) in a manner that is inconsistent with maintenance of the privilege. I am conscious that it is not sufficient that the other parties may be better informed than if the confidential information were not provided or might obtain some benefit from access to the documents. It is whether reliance on Mr Rumbens report is inconsistent with maintenance of privilege because it would be unfair for the client to rely on the report without disclosure of the documents.
Having reviewed the documents, it appears to me that the overwhelming bulk of the documents produced by Deloitte either did not influence the content of the final report of Mr Rumbens or could have influenced its content only in the sense that they concerned the form or expression of the report or identified sources of the information contained in the report. Others are no more than communications in relation to the practical arrangements for the preparation of the report or arrangement discussions between those involved in its preparation. I do not consider that reliance on the final report is inconsistent with the maintenance of the privilege over those documents.
However, there are a small class of documents containing comments in relation to the report or recording instructions or requests made of Deloitte or within Deloitte which appear to me to have had the potential to have affected the content of the final report in a manner that is inconsistent with the maintenance of privilege. Those documents are likely to have influenced the content of the final report in a manner that means a failure to disclose the documents might lead to appreciation of the final report being incomplete. I do not suggest that there is anything untoward at all in the manner in which the report was prepared, but I believe reliance on the final report waives privilege with respect to that class of documents.
The Commission rejects the claim of privilege with respect to the following documents:
(a)DTT.0001.0001.0358.eml;
(b)DTT.0001.0001.0364.eml;
(c)DTT.0001.0001.0724.mhtml;
(d)DTT.0001.0001.0730.eml;
(e)DTT.0001.0001.0766.mhtml;
(f)DTT.0001.0001.0795.mhtml;
(g)DTT.0001.0001.0911.mhtml;
(h)DTT.0001.0001.1924.mhtml;
(i)DTT.0001.0001.1965.mhtml;
(j)DTT.0001.0001.2014.mhtml; and
(k)DTT.0001.0001.2024.mhtml.
These documents will now be made available for inspection to the other parties to the proceedings.
VICE PRESIDENT
Appearances:
F Leoncio, of counsel, for the Australian Retailers Association, instructed by King & Wood Mallesons.
J Tierney, of counsel, for the Shop, Distributive and Allied Employees Association, instructed by A J Macken & Co.
J Cullinan for the Retail and Fast Food Workers Union.
Hearing details:
28 February 2025.
Sydney (remotely using Microsoft Teams).
[1] Fair Work Act 2009 (Cth), s 591.
[2] Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [9]-[11] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[3] Kirkman v DP World Melbourne Ltd[2015] FWCFB 3995 at [23]; Stephen v Seahill Enterprises Pty Ltd[2021] FWCFB 2623; (2021) 306 IR 140 at [61].
[4] INPEX Operations Australia Pty Ltd v AkzoNobel NV (No 2) [2024] FCA 815 at [43] (Banks-Smith J).
[5] Glencore International AG v Commissioner of Taxation [2019] HCA 26; (2019) 265 CLR 646 at [21]-[22] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[6] Ibid at [26]-[27].
[7] Ibid at [29].
[8] Bowker v DP World Melbourne Limited T/A DP World[2015] FWC 7887 at [6]; Stephen v Seahill Enterprises Pty Ltd[2021] FWCFB 2623; (2021) 306 IR 140 at [62].
[9] Evidence Act 1995 (Cth), s 4(1).
[10] Evidence Act 1995 (Cth), Dictionary.
[11] See also Interchase Corporations Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No. 1) [1999] 1 Qd R 141 at 162 (Thomas J); New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 at [18] (White J).
[12] New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 at [20] (White J); Shea v TruEnergy Services Pty Ltd (No 5) [2013] FCA 937 at [29] (Dodds-Streeten J).
[13] New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 at [53] (White J).
[14] Watkins v State of Queensland [2007] QCA 430; [2008] 1 Qd R 564 at [55] (Keane JA).
[15] Ibid at [51].
[16] INPEX Operations Australia Pty Ltd v AkzoNobel NV (No 2) [2024] FCA 815 at [96]-[99] (Banks-Smith J).
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