Bruce v Victorian WorkCover Authority (No 2)

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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…

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Details
Case
[2022] FedCFamC2G 532
Decision Date

CaseChat Overview and Summary

This case involved a claim by Duncan Bruce against the Victorian WorkCover Authority regarding the production of an investigative report conducted in 2019. The applicant, Bruce, was an Administrative Officer employed by the respondent, the Victorian WorkCover Authority, under a written contract of employment. Following a series of incidents in 2018 and 2019, the respondent appointed an independent investigator to conduct an investigation into matters involving Bruce, leading to his termination of employment in November 2019. Bruce then commenced proceedings, alleging that the respondent had contravened the Fair Work Act 2009 by taking adverse action against him, including terminating his employment. The respondent denied these allegations.

The legal issues in this case centred on whether Bruce was entitled to the production of the investigative report and whether the respondent could withhold it on the basis of confidentiality. Bruce served a Notice to Produce, seeking the report from the respondent. The respondent provided a redacted version of the report but resisted full production, citing confidentiality and reference to a non-party’s workers’ compensation claim. The court had to balance Bruce's right to access relevant information for his case against the respondent's right to protect confidential information.

The court found that while the report was undoubtedly confidential, the respondent's resistance to producing it was not justified solely on the basis of confidentiality. The court concluded that if the parties could not agree on a confidentiality regime, the court could impose one. Given the importance of the report in the context of the proceedings, the court ordered the respondent to produce the report, subject to claims of legal professional privilege. The court ruled that the respondent must provide the investigative report to Bruce for the purposes of the ongoing proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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