Brereton, Graeme Edgar v Chubb Security Australia Pty Ltd

[1998] FCA 33

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW  - whether leave to amend statement of facts discovery - claim of legal privilege.

Industrial Relations Act 1988 (now Workplace Relations Act 1996) - ss 170EA, 170EE.
Disability Discrimination Act 1992 (Cth) s 376
Equal Opportunity Act (W.A.)
Industrial Relations Act 1979 (WA) s 29
Workplace relations and Other Legislation Amendment Act 1996 ss 418, 430(1)
Federal Court of Australia Act ss 22, 32
Industrial Relations Court Rules O 74, r 2

Ampolex Limited v Perpetual Trustee Co (Canberra) Ltd) (1995) 37 NSWLR 405

GRAEME EDGAR BRERETON -V- CHUBB SECURITY AUSTRALIA PTY LTD
WI 1073 OF 1997

JUDICIAL REGISTRAR:  R.D. FARRELL JR
DATE:  29 JANUARY 1998

PLACE:  PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WI 1073 of 1997

BETWEEN:	GRAEME EDGAR BRERETON APPLICANT
AND:	CHUBB SECURITY AUSTRALIA PTY LTD RESPONDENT
COURT:		R.D. FARRELL J.R.
DATE OF ORDER:		29 JANUARY 1998
WHERE MADE:		PERTH

THE COURT ORDERS THAT:

1. The applicant’s Amended Statement of Facts filed on 10 November 1997 stand as his statement of facts.

1. The application that the respondent make the documents described in paragraphs 31 (a), (b) and (c) of the affidavit of Glenn Murray available for inspection by the applicant be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WI 1073 of 1997

BETWEEN:	GRAEME EDGAR BRERETON APPLICANT
AND:	CHUBB SECURITY AUSTRALIA PTY LTD RESPONDENT

COURT:	R.D. FARRELL J.R.
DATE:	29 JANUARY 1998
PLACE:	PERTH

REASONS FOR DECISION

This is an application under Section 170EA of the then Industrial Relations Act 1988, now known as the Workplace Relations Act 1996 (“the Act”). The application is for reinstatement and compensation arising from the alleged unlawful termination of the employment of the applicant, Mr Graeme Brereton (“Mr Brereton”).

I have reserved my decision in relation to two matters raised by the applicant at a directions hearing. The applicant seeks to bring certain claims in the accrued jurisdiction of the Court. He also seeks an order that the respondent produce certain documents over which privilege had been claimed.

Proposed Claims in the Court’s Accrued Jurisdiction

The original application in this matter sought remedies of reinstatement and compensation, pursuant to section 170EE of the Workplace Relations Act 1996.

An amended statement of facts was filed by the applicant, which makes several amendments which were uncontroversial and which were not opposed by the respondent.

However, in a new paragraph 20 of the amended statement of facts, the applicant seeks to invoke the “associated jurisdiction” of the Court to add claims that:

• the termination was in breach of a term of the applicant’s contract of employment, and that he suffered loss as a result of the breach quantified at 32 months’ normal wages, or in excess of $100,000.00, for which he seeks damages;

• he was unlawfully discriminated against on the grounds of impairment, contrary to the Disability Discrimination Act 1992 (Cth) and the Equal Opportunity Act (W.A.), and that he suffered loss as a result of that discrimination, similarly quantified as the loss of 32 months’ normal wages, and including unquantified damages for personal distress, for which he seeks compensation under those statutes; and

• the termination was in breach of Section 29 of the Industrial Relations Act 1979 (WA), in that his dismissal was harsh, oppressive and unfair, and he seeks reinstatement or compensation of his loss and injury under that statute.

The applicant requires leave to formally amend his application to seek these additional remedies, and filed a notice of motion seeking that leave.

In a brief affidavit in support of the motion, the applicant’s solicitor deposed that the amendment was necessary “to ensure that all issues arising from the termination of the Applicant’s employment are determined, to avoid multiplicity of proceedings and to ensure the real questions between the parties are raised for determination”.

The Respondent does not dispute that there would be a common sub-stratum of facts between the primary claim under the Act and the proposed new claims set out in the proposed new paragraph 20. It made no substantive submissions as to whether leave should be granted to bring the additional claims.

I have no difficulty granting leave to amend the statement of facts to permit the applicant to bring the claim for contractual damages for loss alleged to have arisen as a result of the dismissal. This is a claim commonly brought in the Court’s associated jurisdiction in applications of this kind.

The proposed claims seeking remedies for the alleged breach by the respondent of other Commonwealth and Western Australian statutory obligations are less usual, and require further consideration.

This application was filed in the Australian Industrial Commission on 24 September 1996 and reached the Industrial Relations Court on 30 April 1997. On 25 May 1997, under item 63 of Schedule 16 of the Workplace Relations and Other Legislation Amendment Act 1996, such jurisdiction and powers as was previously vested in and exercisable by the Industrial Relations Court over this application vested in the Federal Court.

I must therefore determine the extent of the jurisdiction the Industrial Relations Court had in this matter in order to decide the extent of the jurisdiction transferred to this Court.

Section 418 of the Act indicates the approach to be adopted by the Court.

“In every matter before it, the Court is to grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.”

The section refers, however, to legal and equitable claims “properly brought forward in the matter”. It does not confer jurisdiction on the Court to hear matters which would not otherwise be properly before it. It deals with power, rather than jurisdiction.

By contrast, Section 430(1) confers associated jurisdiction upon the Court in the following terms:

“So far as the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked.”

The associated jurisdiction enables the Court to hear and determine federal claims which would otherwise be outside its jurisdiction.

There was no submission made as to whether the Constitution would permit discretionary “remedies” created by Western Australian statutes and designed to be awarded by Western Australian tribunals to be “enforced” by the Court. The proposition is less than self-evident.

Sections 418 and 430 of the Act are identical in their terms to Sections 22 and 32 of the Federal Court of Australia Act. Similarly, at the relevant time the Industrial Relations Court of Australia would, like the Federal Court, have also been able to hear matters in its “accrued jurisdiction”, where those matters are of a non-federal nature but arise out of a common sub-stratum of facts.

There may be some question, however, as to whether either or both of the Industrial Relations Act 1979 (WA) and the Equal Opportunity Act (W.A.) confer rights upon the applicant which this Court can enforce, or whether they merely empower the relevant Western Australian tribunals to arbitrate or otherwise create an entitlement to reinstatement or compensation.

The proposed federal claim under the Disability Discrimination Act 1992 (Cth), which also contemplates an initial determination by a tribunal, may be subject to a similar difficulty.

The applicant sought to rely upon the terms of section 376 of the Act.

Before 25 May 1997, I had jurisdiction as a Judicial Registrar of the Industrial Relations Court over the alleged termination of employment which is the subject matter of this claim, by virtue of Section 376 of the then Industrial Relations Act 1988 and Order 74 rule 2 of the Industrial Relations Court Rules.

Section 376 permitted the delegation to Judicial Registrars of the Court’s powers in relation to proceedings, in  so far as the proceedings relate to, inter alia:

“a claim that the termination of an employee’s employment was unlawful, ... whether because of this Act or any other law (including an unwritten law) of the Commonwealth or of a State or Territory...”.

By Order 74 rule 2, the Judges of the Court delegated those powers.

I am therefore now able to exercise the same jurisdiction over this matter as a Judicial Registrar of the Federal Court as I was previously able to exercise as a Judicial Registrar of the Industrial Relations Court.

However, Section 376 does not purport to expand the Court’s jurisdiction. Rather, it permits the delegation of some of the powers the Court already has.

Clearly, the Court can have power over some claims that the termination of an employee’s employment was unlawful because another law (including an unwritten law) of the Commonwealth or of Western Australia, under the Court’s associated or accrued jurisdiction. Claims for breach of the employment contract are one example. It does not follow that the Court has power over all such claims.

Accordingly, I am of the view that Section 376 does not assist the applicant.

I am not satisfied on the basis of the submissions to date that the Court has jurisdiction to deal with the proposed additional claims, other than that for contractual damages. However, given that:

• the respondent did not oppose the amendment;

• it is agreed that there was a common substratum of facts such that the amendment will have very little effect on the extent of the evidence to be led; and

• there was a paucity of submissions on the issue

I propose to allow the statement of facts to be amended so that the applicant can, for the time being, continue to assert that the Court has jurisdiction to here those claims.

In doing so, I do not purport to be accepting that assertion. However, it will not in the circumstances do any harm to permit the parties to make further submissions on that question in the course of the hearing.

Rather than deal with it as a preliminary matter, I will decide the question, if it be necessary to do so, in my final reasons for decision.

Claim of Legal Privilege

Affidavits dealing with discovery of documents were filed by Mr Paul Anthony Quoyle on 29 July 1997 and by Mr Glen Murray on 3 November 1997. While the named respondent at that time was “MSS Security Services Pty Ltd”, I note that both Mr Quoyle and Mr Murray attested to the fact that they were officers of Chubb Security Australia Pty Ltd, which has now been named as the respondent in this proceedings. I therefore proceed on the assumption that these affidavits will be regarded by the parties as standing as the affidavits of the present respondent.

On 13 October 1997, I ordered that the respondent provide further and better discovery of, inter alia, “particular documents relating to the (then) respondent, or entities associated with the (then) respondent, obtaining legal advice in respect of the applicant, and the provision of any such legal advice...”.

In his affidavit, Mr Murray deposed to the circumstances in which the documents falling within that description were created, in support of a claim of privilege for the documents.

The applicant challenges that claim of privilege with respect to three of the discovered documents.

Mr Murray’s evidence was as follows:

“26. ... on or about 15 September 1997 I contacted the former State       Manager of Chubb, Mr Mike McKinnon, who was in that position until   October 1996, when I took over the role.

27.On or about 15 September 1997 Mr McKinnon informed me and I   believe that he wrote a memorandum to his supervisor Mr George        Chin dated 20 August 1996, recommending that a legal position be           obtained on an “agreed best course of action, agreed positions with      Mayne Nickless, agreed position with medical company insurers and          agreed position with our partners Westrail due to possible publicity”.     ...

28.On or about 15 September 1997 Mr McKinnon informed me and I   believe that he received no written response from Mr Chin to this      memorandum.

29.On or about 15 September 1997 Mr McKinnon informed me and I   believe that he received a verbal response from Mr Chin that legal            advice on these issues should be sought.

30.Chubb subsequently sought such legal advice from its then solicitors           Minter Ellison in anticipation of legal proceedings (my emphasis).

31.The following correspondence, for which legal professional privilege          is claimed, was sent by Chubb to Minter Ellison and by Minter Ellison    to Chubb in relation to legal advice sought on this issue:

(a)       Letter from Minter Ellison to Chubb, dated 3 September    1996;

(b)       Letter from Chubb to Minter Ellison, dated 4 September    1996;

(c)       Letter from Minter Ellison to Chubb, dated 4 September    1996;...”

One of the documents annexed to Mr Murray’s affidavit was the memorandum from Mr McKinnon to Mr Chin on the subject of “Westrail Medical Examination” dated 20 August 1996, referred to at paragraph 27 of the affidavit. It included the following passage:

“Therefore, even in the best case scenario we must deal with personnel, both Chubb and Mayne Nickless responsibility, who do not meet the (Westrail) contract requirements. Initial advice from Ian Hawthorn after discussions with solicitors is as follows.

[Comments on the issues arising out of the options of “Redundancy”, “Termination on Medical Grounds”, “Relocation to Other Duties” and “Probation”.]

A legal position must be obtained before proceeding in order to establish the following:
a)        agreed best course of action
b)        agreed positions with Mayne Nickless
c)        agreed position with medical company insurers and
d)        agreed position with our partners Westrail due to possible publicity.”

The applicant challenged the respondent’s claim of privilege over the documents listed in paragraphs 31 (a), (b) and (c) on two grounds.

First, the applicant submits that the documents were not created in anticipation of legal proceedings, because they preceded the issuing of any letters of termination. He speculates that the correspondence may have been concerned with vetting the terms of the letter of termination. Further, Mr Murray appears only to claim that advice sought after about 15 September 1996 was sought in anticipation of legal proceedings.

Accepting that that is so, the circumstances deposed to by Mr Murray in paragraph 31 indicate that the documents were confidential communications between the respondent and professional legal advisers in their professional capacity with a view to obtaining and giving legal advice and assistance “on this issue”. In that respect, paragraph 31 is not contradicted by paragraph 30’s claim of anticipation of legal proceedings, which is not relevant to the documents created before 15 September 1996. There is sufficient before the Court, without more, to sustain a claim for privilege on that basis.

The applicant’s second submission is that annexure “GM5” amounts to a partial waiver. The second-hand account of legal advice contained in the memorandum is said to summarise “initial advice... after discussions with solicitors...”. Given that the memorandum is dated 20 August 1996, it cannot be summarising the content of documents created on 3 and 4 September 1996, and does not evidence an intention to waive privilege over those documents.

The applicant placed reliance on Ampolex Limited v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405, wherein it was held that where parties make allegations raising the issue of their state of mind, to which their legal advice is likely to have contributed, then they cannot withhold that advice from their opponent.

There are no pleadings in this matter, but there is nothing in the respondent’s statement of facts to indicate that its state of mind is at issue. As it presently appears, the respondent will be held to have breached its obligations under the Act, or not. Whether it intended to do so is not directly relevant.

It is sometimes the case in matters of this type, unfortunately, that the full scope of a party’s claim or defence only becomes apparent in the course of the hearing. If the respondent in fact conducts its defence in a manner which could constitute a waiver of privilege under the principles articulated in the Ampolex case, then the applicant may seek to renew his application on that basis.

On the basis of what is before me, however, I will dismiss the applicant’s application that the respondent make available for inspection the documents described in paragraphs 31 (a), (b) and (c) of Mr Murray’s affidavit.

I certify that this and the preceding six (6) pages
are a true copy of the reasons for decision of
Judicial Registrar R.D. Farrell.

Associate:

Dated:            30 January 1998

APPEARANCES

Counsel appearing for the applicant:             Mr M D Cole
Solicitors for the applicant:  Terrace Law

Counsel appearing for the respondent:          Mr A J Power
Solicitors for the respondent:  Jackson McDonald

Dates of Hearing:  13 November 1997
Final Submissions:  20 November 1997
Date of Judgment:  29 January 1998