Bruce v Victorian WorkCover Authority (No 2)
[2022] FedCFamC2G 532
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bruce v Victorian WorkCover Authority (No 2) [2022] FedCFamC2G 532
File number(s): MLG 1416 of 2020 Judgment of: JUDGE O'SULLIVAN Date of judgment: 1 July 2022 Catchwords: INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Notice to Produce-Application in a Proceeding seeking production of Report sought in Notice to Produce-test of apparent relevance in proceedings concerning alleged breaches of Part 3-1 of Fair Work Act2009 (Cth) – issues of confidentiality and legal professional privilege Legislation: Evidence Act 1995 (Cth)
Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth), r.14.10, r.16.16
Victorian WorkCover Authority Enterprise Agreement 2016-2020
Cases cited: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Emergency Transport Technology Pty Ltd[2011] FCA 181
Bruce v Victorian WorkCover Authority [2022] FedCFamC2G 106
Cheung Kong Infrastructure Holdings Limited v BlueScope Steel Limited [2010] FCA 739
Commissioner of Police, NSW Police Force v Ritson [2020] FCCA 1803
Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Ltd [2021] FCA 511
Esso Australia Resources Ltd v Federal Cmr of Taxation [1999] HCA 67;(1999) 201 CLR 49
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission[2002] HCA 49
Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) FCA 1040; (2001) 110 FCR 157
Frigger v Trenfield (No 8) [2021] FCA 569
FUD18 v Minister for Home Affairs [2019] FCA 1858
Grant v Downs[1976] HCA 63; (1976) 135 CLR 674
Larne-Jones v Human Synergistics Australia Ltd [2013] FCCA 1498
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
Oztech Pty Ltd v Public Trustee of Queensland (No 10) [2016] FCA 970
Wong v Sklavos [2014] FCAFC120
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 1 July 2022 (via Microsoft Teams) Counsel for the Applicant: Ms Duthie Counsel for the Respondent: Mr Tracey Solicitor for the Respondent: Victorian Government Solicitor’s Office ORDERS
MLG 1416 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DUNCAN BRUCE
Applicant
AND: VICTORIAN WORKCOVER AUTHORITY
Respondent
ORDER MADE BY:
JUDGE O'SULLIVAN
DATE OF ORDER:
1 JULY 2022
THE COURT ORDERS THAT:
1.Subject to order 2 the respondent produce to the applicant the un-redacted report of Deloitte Risk Advisory dated 14 June 2019 by Peter Morris (‘the Report’).
2.The claims for legal professional privilege in relation to the redacted portion of the Report (as identified in the affidavit of Mr Timothy Gove filed 21 June 2022) at page 24 para 3.53(e), Exhibit E page 49, Exhibit F page 60 and Exhibit I pages 78 & 79 are upheld.
3.The application in a proceeding filed 21 April 2022 be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
These reasons concern the orders to be made on 1 July 2022 resolving the question raised by Duncan Bruce (‘the applicant’) as to whether the Victorian WorkCover Authority (‘the respondent’) should be required to produce an investigative report (‘the Report’) it had undertaken in 2019.
BACKGROUND
On 17 September 2018, the applicant was employed by the respondent as an Administrative Officer, pursuant to a written contract of employment. The applicant worked in the respondent’s Medical Panels Division. At all material times the applicant’s employment was covered by the Victorian WorkCover Authority Enterprise Agreement 2016-2020 (‘the EA’).
Following a number of incidents in 2018 and 2019, the respondent appointed an independent investigator to conduct an investigation into a number of matters involving the applicant. At or around the same time there were a number of other incidents involving the applicant, including concerns that he raised about his workplace health and safety.
In the course of addressing those issues the respondent directed the applicant to undertake an independent medical examination which had to be rescheduled on a number of occasions due to the applicant’s failure to attend.
After the respondent had given the applicant notice about his failure to follow the above direction, he was advised that the respondent intended to terminate his employment. Following this and in November 2019, the respondent advised the applicant that it was moving to do just that and terminated his employment on 12 November 2019. The applicant then commenced these proceedings.
By application and Form 2 filed on the 30 April 2020 the applicant alleged that the respondent had inter alia, contravened Part 3.1 of the Fair Work Act 2009 (Cth) (‘the FW Act’) by taking adverse action against him, including by terminating his employment. By its response filed 5 June 2020, the respondent denied the applicant’s allegations.
Following a number of directions hearings and the appointment of pro bono Counsel for the applicant (as his previous solicitor had ceased to act) the substantive proceedings were listed for trial in May 2022, the parties filed a statement of agreed facts and trial material, including affidavits pursuant to Court Order.
THE NOTICE TO PRODUCE
In the lead up to the trial the parties were involved in separate proceedings before a number of Victorian tribunals. As a result of issues that arose in one of those proceedings the Court, on application of the applicant, released the parties from the implied Harman undertaking in respect of some of the trial material (see Bruce v Victorian WorkCover Authority [2022] FedCFamC2G 106).
On 8 April 2022, the applicant purported to serve a Notice to Produce for the respondent to produce a copy of the Report (as it had been referred to in the affidavits of the respondent’s witnesses). On 14 April 2022, the respondent provided the applicant with a copy of the Report “in accordance with the OVIC decision” (a reference to one of the above proceedings which had been before the Office of the Victorian Information Commissioner). The copy provided was (almost entirely) in redacted form.
The applicant then filed an application in a proceeding on 21 April 2022 accompanied by an affidavit seeking an order that the respondent produce the Report (in unredacted form) as sought in the Notice to Produce. The applicant maintained the copy of the Report provided was not in accordance with the Notice. This application was listed to the trial date.
When the matter came on for trial, the applicant sought production of the Report pursuant to a Notice to Produce (‘the Notice’). The respondent had provided the applicant with a redacted copy of the Report as sought in the Notice (as a result of proceedings before the Victorian Information Commissioner). The respondent otherwise objected to producing the Report arguing it was not relevant and made claims of inter alia confidentiality and legal professional privilege.
Given this, the trial was adjourned and the parties were directed to file submissions addressing the matter. The applicant filed submissions on 30 May 2022 and the respondent filed their submissions and an affidavit of Timothy Gove on 21 June 2022.
THE RULES
The Notice referred to r.14.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) (‘GFL Rules’). Rule 14.10 of the GFL Rules is as follows:
(1)If a document or affidavit filed by a party refers to another document, another party may request the party in writing for a copy of the document or to produce it for inspection.
(2)The party requested to provide a copy of, or produce, a document must, within 4 days of the request, in writing to the party making the request:
(a)provide a copy of the document or appoint a time within 7 days, and a place where, it may be inspected; or
(b)claim that the document is privileged from production and state the grounds; or
(c)state that the document is not in the possession, custody or control of the party to whom the request was made and state that party’s knowledge, information or belief about its whereabouts.
A Notice can also be issued pursuant to r.16.16 of the GFL Rules which provides:
(1)A party may, by notice in writing, require another party to produce, at the hearing of the proceeding, a specified document that is in the possession, custody or control of the other party.
(2)Unless the Court otherwise orders, the party given notice to produce must produce the document at the hearing.
The source of a party’s obligation to comply with a Notice that is validly given under r.14.10 or r.16.16 of the GFL Rules is the rule itself. If the Court is satisfied that a party has not complied with a Notice it would be open to the Court to make an order under r.14.04 of the GFL Rules, which provides that the Court may order a party to a proceeding to produce to it a document in the possession, custody, or control of the party. Thus, where a party who gives a Notice to another party contends the other party has not complied with it, the remedy such party must seek is an order for production. This is what the applicant did.
What, then, would the Court be required to do when confronted with a contention that a party has not complied with a Notice? The Court would have to consider the grounds on which it is contended the party has not produced documents that fall within the terms of the Notice.
If the Court is not satisfied the recipient of the Notice has not complied with the Notice that would be the end of the matter. If, on the other hand, the Court is satisfied there are documents or classes of documents in the possession of the party to whom the Notice has been given which have not been produced, the Court will make an order that the documents be produced.
The Notice has the same coercive effect as a subpoena for production and compliance with the Notice is mandatory unless production is excused by the Court or the Notice is set aside. (see Frigger v Trenfield (No 8) [2021] FCA 569 at paragraph [8], Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Emergency Transport Technology Pty Ltd[2011] FCA 181 at paragraphs [9]-[22] and Cheung Kong Infrastructure Holdings Limited v BlueScope Steel Limited [2010] FCA 739 at paragraphs [24]-[28].
I refer to the principles that apply to when a party seeks to set aside a Notice which are the same as the principles that apply to setting aside of a subpoena[1]:
The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued.
[1] Wong v Sklavos [2014] FCAFC120 at paragraph [12] (references omitted)
SUBMISSIONS
On 27 May 2022, the applicant filed submissions addressing this issue, those submissions were as follows:
A. OVERVIEW
1.On 8 April 2022, the applicant served a notice to produce on the respondent, seeking production of the “Deloitte investigation report” referred to in the affidavits filed by the respondent in this proceeding.
2.On 14 April 2022, the respondent produced to the applicant “in response to your Notice to Produce” a 9-page document entitled “Investigation report” that was almost wholly redacted.
3.On 21 April 2022, the applicant filed an application in a proceeding seeking orders that the document be produced in an unredacted form.
4.A party is not permitted to produce redacted documents, absent any order or consent allowing so. The document, namely the “Deloitte investigation report “referred to in the respondent’s affidavit material is not redacted. The redactions in the document provided to the applicant are so extreme that the applicant had no reasonable basis to understand the contents of the document. Producing the report with such overzealous redactions is impermissible and means that the parties are not placed on an equal-footing in this litigation.
5.On 9 May 2022, the respondent filed written submissions opposing the application on the basis that it “has no relevance to the key matters in dispute in this proceeding and neither its production, nor its use in evidence (if admitted), serves a legitimate forensic purpose.”
6.On 9 May 2022, at the commencement of the hearing to this matter, the respondent notified the court that the document entitled “Investigation report” produced on 14 April 2022 was in fact just a summary of the “Deloitte investigation report” and that the report itself ran to some 120 pages.
7. It is uncontroversial that:
(a)the “Deloitte investigation report” is a document “referred to” in the affidavit material of the respondent;
(b) the document is in the respondent’s possession;
(c)the document has not been produced (either in its entirety or an unredacted form);
(d) the respondent has not claimed privilege over the document;
(e)the respondent has not claimed that production would be unduly burdensome or oppressive;
(f)the respondent has not claimed that the notice is used for the purposes of “fishing”;
(g) the respondent has not applied to set aside the notice to produce.
8.In the circumstances, the respondents are in breach of the rules and the Court should order that the entire document be produced to the applicant in an unredacted form.
B. THE TEST
9.Rule 14.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 is contained within Division 14.2 entitled “Obligation to disclose” and provides (emphasis added):
14.10 Documents referred to in document or affidavit
(1)If a document or affidavit filed by a party refers to another document, another party may request the party in writing for a copy of the document or to produce it for inspection.
(2)The party requested to provide a copy of, or produce, a document must, within 4 days of the request, in writing to the party making the request:
(a)provide a copy of the document or appoint a time within 7 days, and a place where, it may be inspected; or
(b)claim that the document is privileged from production and state the grounds; or
(c)state that the document is not in the possession, custody or control of the party to whom the request was made and state that party’s knowledge, information or belief about its whereabouts.
10.As above, the applicant has complied with sub-rule (1) however the respondent has not complied with any of the requirements set out in sub-rule (2). It follows that the respondent, supposedly a model litigant, has not met its “obligation to disclose” as required by the rules.
11.The relevant test was described by Thawley J in FUD18 v Minister for Home Affairs [2019] FCA 1858 at [24]-[25] as follows (emphasis added):
24.The question whether the documents are sufficiently relevant to justify production is not whether the documents sought under the Notice to Produce are admissible or will be admitted into evidence. The question has been framed as whether the documents sought are of “apparent relevance to the issues” in the proceedings – see: National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 385. It has been framed as whether the documents sought are “reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case” – see: Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927 (Waddell J). The concept of “apparent relevance” was explained by Beaumont J in Trade Practices Commission v Arnotts Ltd (No. 2) (1989) 88 ALR 90 at 103 as involving the question whether the material “could possibly throw light on the issues in the main case”.
25.In Alister v The Queen (1984) 154 CLR 404 at 414, Gibbs CJ concluded that “a subpoena had a legitimate forensic purpose if it [appeared] to be ‘on the cards’ that the documents [would] materially assist the defence” in a criminal proceeding.
12.It is readily apparent from those observations that the test is not a high one. The observations of Thawley J have since been adopted by the Federal Court and the Federal Circuit and Family Court and should be considered binding in this application.
C. THE DELOITTE INVESTIGATION REPORT
13.The Report is not merely “referred to” in the affidavit material. An entire sub-section of the Agreed Facts (A.6) is dedicated to the investigation, including multiple instances where it is agreed that the applicant exercised his workplace right to make a complaint or inquiry in relation to his employment concerning the Deloitte Investigation. The applicant himself gives detailed evidence as to his involvement in this investigation at paragraphs 85 to 90, 97 to 102, 113-116, and 162-164 of his first affidavit.
14.Further, Ms Gatt gives evidence that paragraph 43 of her affidavit to the matters that led to the applicant being directed to remain away from work – which is one of the two adverse actions claimed in this proceeding – and says that the applicant was to stay away from the workplace “possibly until the confidential investigation regarding the Convenor had concluded”.
15.Despite Ms Gatt describing the outcome of the Deloitte Investigation determinative to his suspension, the respondent now claims that it is relevant to the issues in this proceeding.
16.Further, Ms Hickmonn:
(a)gives detailed evidence about the investigation and report from paragraphs 12 to 16 of her affidavit;
(b)at SH-1 annexes a letter to the applicant confirming his request for an investigation and that Deloitte had been asked “to conduct an investigation into the matter you have raised”;
(c)at SH-4 annexes an email from Ms Goodwill referring to the applicant making “another confidential complaint today” and saying that he “was quite heightened, and this was following the Deloitte summary of his testamony”;
(d)at SH-7 annexes an email she received from Ms Gatt referring to the applicant “having “a major rant about Deloittes”
(e)at SH-8 annexes an email she received from that applicant where he said that it was not appropriate for Ms Cantwell to be part of a meeting with him “due to her conflict of interest as a named party in the Deloitte Investigation”;
(f)at SH-10 annexes an email where he apologises for raising his voice to Ms Goodwill saying “I'm upset that the stress got on top of me so much that you had to witness that in a private room when discussing Deloitte breaching the terms of the agreement in place in regards to my participation in the Deloitte investigation”;
(g)at SH-18 annexes an email that she sent to the applicant about his “graduated return to work plan” referencing that “the Deloitte investigation will have concluded by end of next week, and I can update you on that also in line with the above. I acknowledge that this has taken some time, and appreciate your patience”;
(h)at SH-30 annexes a termination checklist that she sent to Mr Keen that says next to the box “other relevant information” that “Duncan was a complainant in the Deloitte Investigation into bullying allegations against the previous Convenor of Medical Panels – David Eaton” and “Duncan also lodged a complaint with the Ombudsman in July 2019 requesting information on the Deloitte Investigation.”
17.Despite the above, including Ms Hickmon labelling the applicant’s involvement in the Deloitte Investigation as “relevant information” for his dismissal, the respondent now claims that it is not relevant to the issues in this proceeding.
18.Ms Goodwill gives evidence as to the Deloitte Investigation at paragraphs 18-25, 38- 39 and annexes at KG-20 notes of the meeting where the applicant was directed to remain away from work where he asked if this was “effective before the information of the Deloitte investigation was made available?”
19.Further, prior to his dismissal, the applicant’s lawyer wrote to the respondent saying, amongst other references, (emphasis added):
The numerous instances of bullying outlined above, and which form the basis of the Deloitte Investigation constitutes repeated and unreasonable behaviour towards our client which has created an obvious risk to his health and safety, as evidenced by the fact our client has experienced a significant deterioration in his mental health, as outlined in Dr Isaac’s recent report.
D. THE DOCUMENT SHOULD BE PRODUCED
20.It is clear on the face of the affidavit material that the Deloitte Investigation Report is likely to add, in the end, in some way or other, to the relevant evidence in the case. That is, it could possibly throw light on the issues and it is on the cards that it may assist the applicant.
21.For instance, of the limited part of the report that has been provided to the applicant, the summary of findings discloses at paragraph 1.6 that the evidence substantiated that someone “spoke in a disrespectful tone toward Mr Bruce” and at paragraph 1.9 that “we considered that the allegation to be substantiated when there was a corroborating witness interview, a note made by a witness or complainant and/or email evidence.”
22.It follows that, somewhere in the report, there must be a corroborating witness interview, a note made by a witness or complainant, and/or email evidence that supports the applicant’s complaints and (likely) assists the applicant’s case. Likewise, if there are allegations the applicant made that were not found to be substantiated, that may be because of interviews/notes/emails of witnesses that contradict his account.
23.Equally, given the length of the report, it suggests that there are multiple witnesses who have been interviewed regarding the respondent’s workplace culture (a consistent theme throughout the applicant’s complaints in this proceeding). It may be that witnesses in the investigation have also been called as witnesses in this proceeding. It may be that the evidence given by one of those witnesses in this proceeding is inconsistent with what was said in the Deloitte investigation, or it may be that what was said by witnesses in the Deloitte investigation was favourable to the applicant (or, conversely, unfavourable to the respondent).
24.Further (given the reference to emails and notes in the summary), it may be that there is further documentary evidence relevant to the applicant’s complaints that has not been filed in this proceeding, which the applicant has not yet seen and therefore not had the ability to test.
25. There is no proper basis for the respondent to resist production.
The respondent’s submissions in response were filed on 21 June 2022 and stated:
1.The Respondent, the Victorian WorkCover Authority (WorkSafe), relies upon this outline of submissions in response, and in opposition, to the Applicant's Application in a Proceeding filed on 22 April 2022 (Application). The Application seeks the production of a document, namely the Deloitte Investigation Report (the Report), in an unredacted form, pursuant to rule 14.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules).
2. In opposing the Application, the Respondent relies upon:
(a) an Affidavit of Laura Myer affirmed on 5 May 2022; and
(b) an Affidavit of Timothy Gove affirmed on 21 June 2022.
3. The Respondent opposes the Application on the basis that:
(a)there is no legitimate forensic purpose for the Report to be produced, in that it is not “on the cards” that the Report will materially assist the Applicant’s case; and/or
(b)the Report is not of apparent relevance to (and would not possibly throw light on) the issues in this proceeding and it is not likely to add, in the end, in some way or another, to the relevant evidence in the case.
4.The Respondent accepts that this is the appropriate test which governs whether or not the court will order production of the Report: see FUD18 v Minister for Home Affairs [2019] FCA 1858 at [24] - [25] per Thawley J. The parties agree that this is the test: Applicant’s Outline of Submissions as to Notice to Produce dated 27 May 2022 (AS) at [11].
5.The test has been applied in this Court (strictly, its predecessor, the Federal Circuit Court) in Commissioner of Police (NSW) v Ritson [2020] FCCA 1803, where it was held that rule 14.10 of the Rules (again, strictly, the previous rules used in the Federal Circuit Court), cannot be used to compel production of documents where the documents sought serve no legitimate forensic purpose, or are irrelevant (in the sense described above) to the issues in the proceeding: see Ritson at [32]-[36].
6.These submissions focus upon the application of this test, which is the only relevant question before the Court on this Application. Various other issues raised by the AS are not addressed because they are not relevant to this question. That does not mean that various assertions made in the AS are agreed or accepted by the Respondent: to take just one example, the Respondent takes issue with the suggestion (at AS [10]) of non-compliance with model litigant guidelines, which is simply not the case.
7.Further, contrary to AS [8], there is no breach of the Rules, because, as Ritson demonstrates, a party is entitled to resist production and to ask the Court to rule on the question of production, as is presently occurring.
8.Otherwise, the Respondent agrees that the matters at AS [7] (a), (b), (c), (e) and (g) are uncontroversial.
The nature of the Report and its content
9.As the evidence shows, and as the Court can itself see (as a copy of the Report has been provided to the Court at the Court’s request), the Report contains a substantial amount of sensitive, confidential and privileged information relating to workers’ compensation claimants and WorkSafe’s employees. More specifically, the Report contains personal and medical information of injured workers, including details of their particular circumstances and the nature of their injuries, communications between WorkSafe’s employees that may be subject to legal professional privilege, and confidential information provided by WorkSafe’s employees as part of Deloitte’s investigation. Most of that content – and, in fact, most of the other content of the Report which cannot be so characterised – does not relate to the Applicant’s allegations which he made against the then Convenor of Medical Panels.
10.The Report contains information relating to the investigation by a third party consultant (Deloitte) into confidential and sensitive complaints made by employees of the Respondent against the Convenor, a non-party to this proceeding (who was not at any time an employee of the Respondent), and the third party consultant's findings in relation to the same. The Applicant was one of multiple employee complainants interviewed as part of the investigation. The Applicant’s allegations formed a very small subset (i.e., one out of 13) of the total allegations investigated.
11.Indeed, as the evidence shows and as the Court can see upon reviewing the Report, only very limited parts of the Report actually make reference to the Applicant. The Applicant has previously been provided with some of these references, pursuant to a Decision of the Office of the Victorian Information Commissioner (see Affidavit of Laura Myer at [10]). There are a number of references to the Applicant which he has not previously seen. They are referred to at paragraph [15] of the Affidavit of Timothy Gove, however for reasons set out further below it is submitted that the production or disclosure of those further references does not (as the Court will see when it considers them) serve a legitimate forensic purpose or have relevance to the present proceeding (see further at paragraphs [12], [13] and [19] below).
The content of the Report is of no apparent relevance and there is no forensic purpose in production
12.In the present case, it is only the documents that pertain to the key matters in dispute in this proceeding, as set out in the Statement of Key Matters in Dispute (Court Book, page 207) which are of apparent relevance and which would serve a legitimate forensic purpose in the proceeding. The Report is not such a document, especially when there is no dispute that the Applicant made relevant complaints or any dispute that some of them were considered by a third party-consultant and the subject of the Report. As indicated above, only a very small part of the Report addresses the Applicant’s complaints.
13. In these circumstances:
(a)the Report has no apparent relevance in this proceeding, a proceeding which is concerned not with determining whether the Applicant made the relevant complaints – which the Respondent admits was an exercise of a workplace right – but rather whether the complaints actuated the decision-makers who engaged in the alleged adverse actions; and
(b)the production, or use in evidence, of the Report can have no legitimate forensic purpose.
14.While it is accepted that the aspects of the Report to which the Applicant refers at AS [13] – [19] have some peripheral connection to a small number of the uncontroversial background facts – in that the Deloitte investigation occurred and was mentioned from time to time – the real factual issues in dispute (concerning the two adverse actions alleged, being the alleged Direction and the Dismissal), and matters concerning the state of mind of the Respondent’s relevant witnesses, have nothing to do with the content of the Report. So much is plain when one reads the Report. The content of the Report, as the Court can see, does not have apparent relevance because it is not likely to add, or possibly throw light upon, the issues in dispute. It is not “on the cards” that the content of the Report will assist the Applicant’s case.
15.Furthermore, the submissions about the Report’s alleged content at AS [23] – [24] are, with respect, speculation that shows that the Applicant, in seeking production of the Report, is essentially on a fishing expedition. The submissions at AS [21] – [22] are addressed below at paragraph [19].
16.There is another reason why the production of the Report has no legitimate forensic purpose. In addition to the seeking of production amounting to a long-running fishing exercise on the part of the Applicant, it would also appear that the Applicant has a collateral and irrelevant purpose in seeking and obtaining production of the Report. So much is apparent in his submission to the Victorian Information Commissioner, to whom he made a request for production of the Report. That submission is recorded by the Commissioner (who refused production, save for some parts of the Report identifying the Applicant) as follows: (see page 4, Annexure LM-1 to the Affidavit of Laura Myer)
The Applicant submits they seek access to this information to understand the investigation process, the Agency’s ability to manage workplace bullying and for the reasons of public interest. The Applicant further submits another key motivating factor is to confirm the evidence they provided was included and to see if their allegations were fairly and reasonably conveyed. The Applicant contends they are entitled to know the outcome of the investigation and whether allegations have been substantiated or not.
17.None of these matters is relevant to the Court’s determination of the present proceeding brought under Part 3-1 of the Fair Work Act 2009 (Cth).
18.For these reasons, it is respectfully submitted that the Court should not order production of any part, or content, of the Report.
Alternative submission
19.While the Respondent opposes production of the Report for the reasons set out above, it submits in the alternative that, if the Court were minded to order production, the only parts of the Report which should be ordered to be produced are the parts where there is a reference to the Applicant, as set out in paragraph [15] of the Affidavit of Timothy Gove. This, it is submitted, is the only content of the Report about the Applicant to which the Applicant does not currently have access and which might arguably satisfy the test in FUD18 v Minister for Home Affairs (although this is not conceded). (It is also content which would answer the speculation at AS [21] – [22].)
20.Further, if production of any other part or content of the Report is ordered (that is, any parts which do not refer to the Applicant), the Respondent respectfully submits that the Court should order that production occur with redaction of the parts set out at paragraph [14] of the Affidavit of Timothy Gove and any other parts of the Report which have the character described in the table in paragraph [14]. That is because none of that content satisfies the test in FUD18 v Minister for Home Affairs (and in Ritson) and because it is sensitive, confidential and privileged information relating to workers’ compensation claimants and WorkSafe’s employees (and the health of such people).
Conclusion
21.For the reasons advanced above, it is submitted that the Application in a Proceeding should be dismissed.
CONSIDERATION
The first matter for consideration is whether or not the Report (as a whole) required to be produced is sufficiently relevant to the proceedings to justify production, and the onus of establishing that they are rests upon the applicant. The applicant is required to identify a legitimate forensic purpose for which access to the redacted portions is sought, but he is not required to establish that these portions would be admissible or admitted into evidence at the trial. The relevant principles are conveniently summarised by Thawley J in FUD18 v Minister for Home Affairs [2019] FCA 1858 at paragraphs [24]-[25] as follows:
[24]The question whether the documents are sufficiently relevant to justify production is not whether the documents sought under the Notice to Produce are admissible or will be admitted into evidence. The question has been framed as whether the documents sought are of “apparent relevance to the issues” in the proceedings – see: National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 385. It has been framed as whether the documents sought are “reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case” – see: Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927 (Waddell J). The concept of “apparent relevance” was explained by Beaumont J in Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 103 as involving the question whether the material “could possibly throw light on the issues in the main case”.
[25]In Alister v The Queen (1984) 154 CLR 404 at 414, Gibbs CJ concluded that “a subpoena had a legitimate forensic purpose if it [appeared] to be ‘on the cards’ that the documents [would] materially assist the defence” in a criminal proceeding.
Insofar as apparent relevance is concerned, it is necessary to have some regard to the Statement of Agreed Facts:
A. AGREED FACTS
A.1 Employment Details
1.On 17 September 2018, the applicant was employed by the respondent as an Administrative Officer, pursuant to a written contract of employment. Annexure AF-1
2. The applicant worked in the respondent’s Medical Panels Division.
3. The applicant reported to Hilary Cantwell – Legal Team Manager.
4.At all material times the Applicant’s employment was covered by the Victorian WorkCover Authority Enterprise Agreement 2016 – 2020 (EA). Annexure AF-2
A.2 Eaton Conduct
5.On 26 October 2018, while the applicant was sitting at his desk in the open plan area at the respondent’s La Trobe St office, Mr David Eaton (Convenor) came out of his office, looked at the intrays and began yelling words to the effect of ‘no, no, not good enough, who did this, Duncan’. (Eaton Conduct)
6.On 29 October 2018, the applicant said to Ms Cantwell words to the effect that the Eaton Conduct wasn’t acceptable.
7.On 2 November 2018, Ms Cantwell documented a conversation with the applicant via ‘CHAT’ (internal performance development and feedback system), in relation to the Eaton Conduct. Annexure AF-3
8.On 13 November 2018, the applicant met with Ms Elaine Jackson (Manager of Registry) and expressed his concerns about, among other things, Mr Eaton’s conduct towards other employees and the respondent’s workplace culture generally.
9.On 14 November 2018 the applicant sent an email to Ms Jackson and Ms Clare Amies (Chief Executive Officer) entitled “Medical Panels Culture”. Annexure AF-4.
A.3 Applicant on personal leave and working from home
10.From 15 November 2018 to 27 November 2018, the applicant was absent from work on personal leave.
11.From 28 November 2018 to 10 December 2018, the applicant worked from home.
12.In around December 2018, the applicant provided the respondent with a medical certificate which requested that the applicant be permitted to work from home until 21 December 2018.
13.On 3 December 2018, the respondent telephoned the applicant and said, among other things, that it would send the applicant an email with a link to the respondent's Complaint Resolution Policy.
14.At 3:56 pm on 3 December 2018, the respondent emailed the applicant a link to the Complaint Resolution Policy. Annexure AF-4.1
15.On 10 December 2018, the respondent conducted a “values session” that was attended by, amongst others, the applicant and Mr Eaton. The “values session” focused on the respondent’s organisational values of: “Connected, Persistent, Dynamic”. Annexure AF- 5
16.From 10 December 2018 to 29 December 2018, the applicant worked from home two days per week. The applicant was absent from work on personal leave on 13, 17, 20 and 21 December 2018.
A.4 Return to work
17.On 7 January 2019, the applicant attended a return to work meeting with the respondent. The invitees to the return to work meeting were the applicant, Ms Natalie Sedgwick (Claims and Return to Work Coordinator), and Ms Cantwell. Mr Dale Nissen (Return to Work Manager) also attended the meeting. During the meeting, the attendees discussed, among other things, the option of the applicant making a workcover claim.
18.On 10 January 2019, the applicant sent an email to Ms Sedgwick entitled “Return to Work (Medical Panels)”. Annexure AF-6
19.On 10 January 2019, the applicant met with Ms Robyn Goodwill (Director of Medical Panels) and raised concerns about the return to work meeting of 7 January 2019.
20.On 14 January 2019, the applicant sent an email to Ms Goodwill entitled “Thursdays Meeting”. Annexure AF-7
A.5 Incident Report about the Eaton Conduct
21.On 16 January 2019, Ms Sedgwick sent the applicant an email, copying Mr Nissen, Ms Goodwill, Ms Cantwell and Ms Suzanne Hickmon (Senior HR Business Partner), entitled “response from email received on 10 Jan 2019 (WSV285)”. Annexure AF-8
22.On 1 February 2019, the applicant responded to Ms Sedgwick saying “Can you please forward the incident documentation through to me as mentioned below”. Annexure AF-9
23.On 4 February 2019, Mr Nissen sent the applicant an “injury report”. Annexure AF-10
24.On 8 February 2019, Ms Goodwill sent Mr Nissen an email entitled “re: injury report”. Annexure AF-11
25.On 18 February 2019, the applicant sent an email to Ms Albeitz entitled “re: incident reporting”. Annexure AF-12
A.6 Deloitte Investigation
26.In February 2019, the respondent appointed an independent investigator, Mr Peter Morris of Deloitte, to conduct an investigation into matters including the Eaton Conduct (Investigation).
27.From 27 February 2019 to 16 March 2019, the applicant was absent from work on annual leave (3 days) and approved leave without pay (10 days).
28.On Friday 22 March 2019 and Wednesday 27 March 2019, the applicant met with Mr Morris as part of the Investigation. Annexure AF-13
29.On 22 March 2019, Ms Kristine Gatt, Director, Health, Safety & Wellbeing sent the applicant (copying Ms Hickmon and Ms Goodwill) an email entitled “Follow up as discussed” in which the applicant was told that he could work from the Collins St office on Mondays, Wednesdays and Fridays and from the La Trobe St office on Tuesdays and Thursdays as an interim solution. Annexure AF-14
30.On 27 March 2019, the applicant engaged in a series of emails with Ms Goodwill entitled “Fridays Meeting”. Annexure AF-15
31.On 29 March 2019, Ms Cantwell sent an email to the Medical Panels team entitled “Aboriginal Cultural Awareness Training next week” asking if anyone would like to attend that training session, noting that Mr Brendan Hunt (Administration Officer) completed it in December 2018. Annexure AF-17
32.On 3 April 2019, the applicant lodged a confidential incident report in relation to Andrew Swain. Annexure AF-18
33.On 3 May 2019, the applicant lodged a confidential incident report in relation to “ongoing bullying and reprisals from Parties named in the ongoing Deloitte Bullying investigation into Medical Panels”. Annexure AF-19
34.On 6 May 2019, the applicant lodged a hazard report in relation to “reprisals towards Duncan Bruce from parties named in a confidential ongoing investigation” (Hazard Report). Annexure AF-20
35.On 6 May 2019, the applicant met with Ms Cantwell and expressed his concern about disrespectful conversations occurring in the workplace.
36.On 6 May 2019, the applicant said to Ms Cantwell that he wanted to remain working at the Collins Street office full time.
A.7 Direction to remain away from the workplace
37.On 9 May 2019, the applicant (with a support person present) met with Ms Gatt, Ms Goodwill, Ms Cantwell and his support person, for the purpose of discussing the work and health issues he had raised, the Hazard Report he had filed, and his work arrangement at Collins St and La Trobe St. At the conclusion of the meeting, Ms Gatt said that the applicant could work from the Collins St office the following day, and that they would be in contact about more permanent arrangements.
38.On 10 May 2019, the applicant sent an email to Ms Gatt entitled “FW: Follow up”. Annexure AF-21
39.On 17 May 2019, the applicant met with Ms Hickmon and Ms Cantwell and was handed a letter signed by Ms Cantwell which required the applicant to make an appointment with his treating practitioner to seek a report detailing his capacity to undertake the inherent requirements of his role and provide any opinion in regard to any reasonable adjustments that the respondent may consider to support the applicant to undertake his role in his primary work location. Annexure AF-22
A.8 Independent Medical Examination
40.On 5 June 2019 the applicant’s treating doctor, Dr Jane Isaac, sent Ms Gatt a report dated 26 May 2019, about the applicant’s condition. Annexure AF-23
41.On 9 July 2019, Ms Gatt wrote to Dr Isaac a letter entitled “Mr Duncan Bruce”. Annexure AF-23.1
42.On 11 July 2019, Dr Isaac wrote to Ms Gatt to advise that the applicant was able to attend and participate in an independent medical examination. Annexure AF-23.2
43.On 30 July 2019, Ms Hickmon sent the applicant a letter saying, amongst other things, that an independent medical examination had been organised for “Wednesday 8th August 2019”. Annexure AF-24
44.The applicant did not attend the medical examination on 8 August 2019 and did not notify the respondent that he would be absent.
45.On 28 August 2019, Ms Hickmon sent the applicant a letter regarding, among other things, an independent medical examination that had been organised for 6 September 2019. Annexure AF-24.1
46.On 4 September 2019, Ms Hickmon sent the applicant a letter regarding an independent medical examination that had been organised for 11 September 2019 Annexure AF-25
47.On 11 September 2019, a lawyer acting on behalf of the applicant sent a letter to the respondent questioning whether the direction to attend the medical examination was lawful.
48.The applicant did not attend the medical examination on 11 September 2019.
49.On 10 October 2019, Ashley Clearihan (Acting Executive Director – External Affairs), wrote a letter to the applicant (via his lawyer) entitled “Re: failure to follow reasonable and lawful directions”. Annexure AF-26
50.On 16 October 2019, Ms Jocelyn Fredericks (Legal Counsel IR/ER), sent an email to a lawyer acting on behalf of the applicant entitled “Re Duncan Bruce”. Annexure AF-27
51.On 17 October 2019, a lawyer acting on behalf of the applicant sent a letter to the Ms Fredericks entitled “Duncan Bruce”. Annexure AF-28
52.On 29 October 2019, Mr Clearihan wrote to the applicant (via his lawyer) saying that the respondent proposed to terminate his employment on the basis of, among other things, his failure to follow a lawful and reasonable direction to attend the independent medical examination. Annexure AF-29
53.On 4 November 2019, a lawyer acting on behalf of the applicant sent an email to Mr Keen (Executive Director – People & Culture) entitled “Duncan Bruce” in response to a letter from Mr Clearihan dated 29 October 2019, saying, amongst other things, that the applicant was “now in a position to attend an IME if directed to do so”. Annexure AF-30
54.On 12 November 2019, the applicant received a letter from Mr Keen stating that the respondent was terminating the applicant's employment for serious misconduct due to the applicant's failure to follow a lawful and reasonable direction to attend an independent medical examination and notify the respondent that he was unable to attend the scheduled independent medical examination. Annexure AF-31
B. FACTS IN DISPUTE
55.On 26 October 2018, after Mr Eaton engaged in the Eaton Conduct (referred to in paragraph 5 above), he then stared at the applicant as other employees in the open plan area stopped what they were doing. Ms Cantwell stood up to look at what Mr Eaton was looking at and saw that Mr Eaton was referring to a file that the applicant was not involved with. Mr Eaton then walked away without apologising.
56.During the phone call between the applicant and respondent on 3 December 2018 (referred to above in paragraph 13), the applicant advised the respondent that he did not want to lodge a formal complaint at that time.
57.On 10 December 2018, the applicant was told by Ms Belinda Albeitz (Acting Director of Medical Panels) that:
(a) he could no longer work from home for five days a week;
(b)she and Ms Cantwell had reviewed the requirements of the Administrative Officer role and determined that it required a minimum of three days per week of office based work and that the applicant could continue to work two days per week from home;
(c)the respondent had engaged a temporary employee on a week-by-week basis to deliver the requirements of the Administrative Office role that the applicant was not able to perform from home;
(d)the applicant would need to apply for leave without pay or sick leave for the remaining three days per week until his medical certificate expired on 21 December 2018.
58. The applicant agreed to the arrangement in paragraph 57 above
59.Whether the reason that the applicant was absent from work on personal leave on 13, 17, 20 and 21 December 2018 was because he was not fit for work because of a personal illness or personal injury, or whether it was because he was directed to take personal leave by the respondent.
60.During the meeting on 7 January 2019 meeting (referred to in paragraph 17 above) the Applicant was asked:
(a) what his reason for taking medical leave was;
(b)on multiple occasions whether he was going to make a WorkCover claim;
(c) by Dale Nissen for further details about the Eaton Conduct.
61During the 10 January 2019 meeting (referred to in paragraph 19 above) the applicant raised concerns specifically about the behaviour of Ms Sedgwick and Mr Nissen during the return-to-work meeting on 7 January 2019.
62.The Investigation undertaken by Deloitte was confidential and concerned not only the Eaton Conduct but the respondent’s workplace culture more broadly.
63.On 28 March 2019, the applicant sent an email to Mr Morris saying that he had heard Mr Hunt refer to Aboriginal people as “abos” in the workplace.
64.On 6 May 2019, during the meeting with Ms Cantwell (referred to at paragraph 35 above) the applicant also made a complaint about bullying behaviour towards him in retaliation for what was disclosed by him in the Investigation.
65.On 9 May 2019, during the meeting with Ms Gatt, Ms Goodwill, Ms Cantwell and his support person (referred to at paragraph 37 above), whether the applicant was asked to provide specific details of his concerns in the Hazard Report but he did not do so.
66.Whether the correspondence between Ms Gatt and Dr Isaac on 9 and 11 July 2019 were exchanged with or without the applicant’s knowledge or consent.
67.The Applicant did not advise the Respondent that he would not attend the independent medical examination that had been organised for 11 September 2019.
C. AGREED PROPOSITIONS OF LAW
68.The dismissal of the applicant was “adverse action” within the meaning of s 342(1) item 1(a) of the Fair Work Act 2009 (Cth) (FW Act).
69.By engaging in the conduct described at paragraphs 33 and 34 above, the applicant exercised a workplace right constituted by his being able to make a complaint or inquiry in relation to his employment.
D. DISPUTED ISSUES OF LAW
D.1. Alleged disability
70.Was the applicant’s “situational stress” (as diagnosed by Dr Isaac in AF-23) a “physical or mental disability” within the meaning of s 351 of the FW Act?
D.2 Alleged workplace rights
71.Did the applicant make, or propose to make, either a complaint or inquiry in relation to his employment through:
(a) his conduct described at paragraphs 6 to 9 above?
(b) his conduct described at paragraph 18 above?
(c) his conduct described at paragraph 19 to 20 above?
(d) his conduct described at paragraphs 22 above?
(e) his conduct described at paragraph 25 above?
(f) his conduct described at paragraph 30 above?
(g) his conduct described at paragraph 32 above?(h) his conduct described at paragraph 38 above?
72.If the answer to the any of the previous sub-paragraphs is “yes”, was the applicant “able to make” that complaint or inquiry for the purpose of s 341 of the FW Act, by reason of:
(a) the EA;
(b) his contract of employment;
(c) the respondent’s policies and procedures; and/or(d) the Occupational Health and Safety Act 2004 (Vic)?
73.If so, did the applicant exercise, or propose to exercise, a “workplace right” within the meaning of s 341(1)(c)(ii) of the FW Act by making, or proposing to make, either a complaint or inquiry as referred to in paragraph 71(a) to (h) above?
D.3 Adverse action
74.Was the direction given to the applicant on 17 May 2019 (as contained in AF-22) “adverse action” within the meaning of s 342(1) item 1(b) or (c) of the FW Act?
D.4 General protections
75.If the answer to questions 73 and 74 are “yes”, was the direction given on 17 May 2019 because of, or for reasons including, an alleged complaint or inquiry in contravention of s 340 of the FW Act?
76If the answer to question 73 is “yes”, was the applicant dismissed because of, of for reasons including, an alleged complaint or inquiry in contravention of s 340 of the FW Act?
77.If the answer to question 70 is "yes", was applicant dismissed because of, of for reasons including, his “physical or mental disability” (as referred to in paragraph 70) in contravention of s 351 of the FW Act?
In Larne-Jones v Human Synergistics Australia Ltd [2013] FCCA 1498 of the ‘Legal Principles’ relevant for this purpose it was said:
17.The applicable principles were summarised by Collier J in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61 (CFMEU). Relevantly, after expressing the view (at [5]) that the principles governing the exercise of the power to set aside a notice to produce (or to excuse production of documents in answer to a notice) were the same as those which govern the setting aside of a subpoena for production, her Honour stated (at [6]):
(1)The party which has issued a Notice to Produce bears the onus of establishing that the documents the subject of the Notice are sufficiently relevant to justify production (Seven Network Ltd v News Ltd (No. 11) [2006] FCA 174 at [6], Cheung at [55].
(2)Timing of the issue and service of a Notice to Produce is a relevant factor in respect of any application to set aside the Notice.
(3)A Notice to Produce cannot be used as an alternative to an application for discovery or for further and better discovery.
(4)It is necessary that the material sought has an apparent relevance to the issues in the principal proceedings. The test of apparent relevance in this context is whether the documents are reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case. (Seven Network (No. 11) at [6], Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union at [14]).
(5)A Notice to Produce cannot be used for the purpose of “fishing” or for the purpose of determining a preliminary question as to whether a party has a supportable case.
(6)A Notice to Produce may be set aside on the basis that it is unduly burdensome if the width of the categories requested is too broad or the categories are not described with adequate specificity…
18.Thus, Ms Larne-Jones, as the party who issued the Notice to Produce, has to establish that the documents in the disputed categories are of sufficient relevance to the issues in the principal proceedings to justify production (see Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Emergency Transport Technology Pty Ltd [2011] FCA 181 (AFMEPKIU), CFMEU at [6], Seven Network Ltd v News Ltd (No. 11) [2006] FCA 174 at [6] and Cheung Kong Infrastructure Holdings Limited v BlueScope Steel Limited [2010] FCA 739 at [55]). This involves establishing apparent relevance.
19.In considering whether documents sought have apparent relevance to the issues in the principal proceedings what is in issue is “adjectival, as distinct from substantive relevance”, (see Trade Practices Commission v Arnotts Limited (No. 2) [1989] FCA 248; (1989) 88 ALR 90 at 103 per Beaumont J). Paraphrasing what was said in Arnotts by Beaumont J at 103 in relation to the setting aside of a subpoena for production, there are two questions to be asked in this context:
(1)Does the material sought have an apparent relevance to the issues in the principal proceedings, ie, is adjectival, as distinct from substantive, relevance established? Does the [Notice] have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of [the issuer].
(2)….
20.In Arnott Beaumont J stated (at 103) that documents sought would be of apparent relevance if they “could possibly throw some light on the issues in the main case” such that it could be said that a subpoena (or a notice to produce) had a “legitimate forensic purpose to this extent” (103).
21.As Spender J explained in Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504; (1997) 37 ATR 432 at 440; [1997] FCA 1504 it is not simply a question of “looking at the documents to see if the documents might permit a case to be made”. Regard is to be had to the issues in dispute in the substantive proceedings in order to consider whether the material sought in the disputed categories appears to have relevance in the sense of being such that it could reasonably be expected to “throw light on” some of the issues in the substantive proceedings (see Cosco at 439, citing Arnotts at 102 per Beaumont J).
22.Beaumont J’s test of “adjectival relevance” has been considered in many cases. Importantly, as Foster J discussed in Cheung at [36], in determining whether a notice to produce should be set aside, it is not necessary for the court to determine whether the document or material sought would be admissible in any final hearing of the substantive proceedings…. The test for apparent relevance does not require a party to demonstrate direct relevance to the substantive proceedings, but rather some potential relevance to the principal case as pleaded.
The decision in Oztech Pty Ltd v Public Trustee of Queensland (No 10) [2016] FCA 970 (which was followed in Commissioner of Police, NSW Police Force v Ritson [2020] FCCA 1803) held or proceeded on the basis that documents to which a rule (such as r.14.10) applies need not be produced if they would not be liable to be produced in answer to a subpoena because there would be no legitimate forensic purpose
However, applying the approach to that question in Larne-Jones v Human Synergistics Australia Ltd [2013] FCCA 1498, the applicant is not required to demonstrate direct relevance to the substantive proceedings, but rather some potential relevance to the principal case as pleaded.
In view of the above, having inspected the Report (and taking into account the applicant’s submissions at paragraphs 13-19) , I have formed the view that it is on the cards that the Report sought under the Notice could possibly throw some light on the issues in the proceeding and therefore, has apparent relevance.
OTHER GROUNDS FOR RESISTING PRODUCTION
That is not the end of the matter.
As set out in its submissions and the affidavit of Timothy Gove in support of those submissions, the respondent opposed producing (at least some parts of) the Report on the basis of a claim of legal professional privilege.
Legal professional privilege attaches to confidential communications brought into existence for the dominant purpose of obtaining or providing legal advice or use in reasonably anticipated legal proceedings.[2] This is an interlocutory dispute, so the common law governs the disposition of the issue, not the Evidence Act 1995 (Cth).[3] I adopt the summary of relevant principles concerning legal professional privilege as set out in Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Ltd [2021] FCA 511 at paragraphs [86] to [95]
[2] Esso Australia Resources Ltd v Federal Cmr of Taxation (1999) 201 CLR 49 (Esso) and Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission(2002) 213 CLR 543 at 552.
[3] Esso; Mann v Carnell (1999) 201 CLR 1.
As to the power of the Court to examine the Report in respect of which a claim of privilege is made, see for example, Grant v Downs[1976] HCA 63; (1976) 135 CLR 674 at 689 (Stephen, Mason and Murphy JJ).
Having examined the Report, I uphold the objections on this ground as set out in the table at paragraph [14] of Mr Gove’s affidavit. I have expressed this conclusion in summary form as to do otherwise could be disclosing the contents of confidential communications.
Finally the respondent resists production on the basis of “sensitive and confidential information” and “reference to non-party’s workers compensation claim”. The Report is undoubtedly of a confidential kind and it is understandable the respondent would wish to protect that confidentiality. Having inspected the Report, I am not satisfied however, that it goes beyond identifying that a non-party has made a workers’ compensation claim and they were being dealt with. Otherwise to the extent that the respondent resists producing the Report on the basis of confidentiality that is not a reason to set aside the Notice.[4] In balancing the competing interests in this matter a suitable confidentiality regime if it is not agreed can be imposed by order of the Court.
[4] Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 at [80]-[83].
CONCLUSION
In view of the above, I have formed the view that (subject to the claims of legal professional privilege) the Report should be produced and I order accordingly.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan. Associate:
Dated: 1 July 2022
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