General Motors-Holden's Automotive Limited v Robbins

[1994] HCATrans 452

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A25 of 1994

B e t w e e n -

GENERAL MOTORS-HOLDEN'S

AUTOMOTIVE LIMITED

Applicant

and

MARK ROBBINS

First Respondent

GRAHAM HARBORD

Second Respondent

Application for special leave

to appeal

MASON CJ TOOHEY J McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 25 AUGUST 1994, AT 3.16 PM

Copyright in the High Court of Australia

Motors 1 25/8/94

MRS. WALSH, QC: If the Court pleases, I appear for the

applicant with my learned friend, MR R. BONIG.

(instructed by Fountain & Bonig)

MR P.A. HEYWOOD-SMITH: If the Court pleases, I appear with

my learned friend, MR J.T.W. BIRCHALL, for the

respondent. (instructed by Duncan & Hannon)

MASON CJ:  The second respondent has indicated that he does

not wish to be represented and will submit to any

of the Court save as to costs. Yes, Mr Walsh.

MR WALSH: If the Court pleases. This application raises a

fundamental issue of legal professional privilege

and its applicability in determinations by a Review

Officer under the Workers Rehabilitation and

Compensation Act, a State Act of South Australia.

If the Court pleases, it would seem that there is, at face value, a dispute as to exactly what the decision of the Full Court does in terms of that

issue of legal professional privilege, because my
learned friend has put in his argument that in fact

it does not raise the issues that we say it does.

With respect, we say that that assertion is wrong

and I will deal with that initially because, in our

respectful submission, what has happened in this

case is that there was a need for the applicant to

make a determination but then thereafter it becomes

a party before the Review Officer.

In fact, section 96 speaks of the parties

before the Review Officer and we are one of those
parties. The only way in which we can protect our

rights, as it were, as a person that may be

required to make a payment under the Act is to be a

party and to contest a matter before the Review

Officer. It has been determined in this State that

the review process is the primary fact

finding-finding process and in fact these review

proceedings proceed in a similar way to the

ordinary case before a court.

We say that there are three classes of

documents which were considered by the court, in

effect. The first class of document is that

document which comes into existence solely for the

purposes of legal advice, or for anticipated legal

proceedings - litigation, that is, or

quasi-litigation - in the sense that the document

in this case, namely the film, could have been

brought into existence independently of any inquiry

in relation to the determination that the exempt

employer had to make. So there was that first

class of document, namely a document which was not

Motors 25/8/94

relied upon by the applicant in making its

determination.

The second class of document is that which

came into existence before the determination was

made but, in fact, was relied upon by the applicant

in reaching its determination. The third class of

document is a document that came into existence or

might come into existence after the determination

had been made under the Acts and before the review

hearing before the Review Officer. The assertion

was that the document in this case, a film - and it

matters not whether it is a film or other evidence

or other document that comes into existence solely

for the purposes of legal advice, or anticipated or

actual litigation - and that in fact it was, in
fact, subject to legal professional privilege.

That is something that the court assumed for

the purposes of the exercise because it was not
challenged before the Review Officer at the time.
That being so, it will be one of the three classes

of documents and most likely, if that assumption is
correct, it will be either the first class or the

third class, that is, a document that was not

relied upon for the purposes of making the

determination or a document that came into

existence subsequent to the determination and

before the review process.

We say that if this case and the decision of

three classes of documents there is no legaJ
professional privilege available to the applicant.

the Full Court has the effect of saying that in all so, in fact the only issue was documents that were

used for the purposes of the determination.

If I can turn briefly to the appeal book to

demonstrate that that is not so.	I will commence
with page 2 of the application book, and this is

part of the decision of the Review Officer which is
the second respondent, Harbord. Item 1(2), the

worker's application was:

That the exempt employer comply withs 96(la)

and disclose to the Review Officer and all

other parties to the proceedings the existence
of all material in the employer's possession
relevant to the proceedings.

The underlining is mine, of course, but "relevant to the proceedings".

The next page I wish to refer to is page 13 of

the application book, and these are the
declarations that were sought at the hearing before

Motors 25/8/94

the Full Court of the Supreme Court. If you turn

to declaration 4(c), the declaration sought is:

That the second defendant is obliged by

Section 96(la) of the Act to:

(i) disclose to the Review Officer the

existence of video film and/or an

investigator's report adverse to the

plaintiff's claim whether or not such material

may have come into the second defendant's

possession in circumstances which would give
rise to a claim for legal professional

privilege -

clearly the general issue is being referred to.

(ii) produce to the Review Officer and the

plaintiff video film and/or an investigator's

report adverse to the plaintiff's claim

whether or not such material may have come

into the second defendant's possession in

circumstances -

The Full Court was called upon to deal with some

other issues which are not relevant in the case

before this Court. The court's attention and its

analysis of the application in relation to 4(c)

commences at page 25. At the top of that page

Your Honours will observe that the court has dealt

with:

the declarations sought in paragraphs 4(a) and

(b) must therefore be refused.

And Your Honours need not be troubled by those.

The Court then turns its attention to 4(c).

The declarations sought in paragraph 4(c)

raise the question whether material which

would otherwise be subject to the obligation

to produce ..... may be protected from

production by legal professional privilege.

May be protected. The next passage I wish to turn

to is at page 27. At the top His Honour the

Chief Justice acknowledges that:

The provisions for reviews and appeals are

contained in Part VI Division VI. The

Corporation or the exempt employer, as the

case may be, is necessarily a party to a

review or appeal.

And we say quite so, it is. At the foot of that

page His Honour deals with the issue of the film

and says that:

Motors 25/8/94

The date or dates of the filming are unknown.

There can be no doubt, however, that its purposes was either to provide material to

assist in the defendant's function of making

the primary decision on the plaintiff's claim,

or -

and this is the critical thing -

to provide material to support that decision

before the Review Officer. Its purpose was
not use by a litigant in the course of

litigation, but use by a statutory decision

maker in discharging its statutory function.

Then His Honour refers to section 96(la).	Then
His Honour continues:

This subsection envisages that all relevant

material in the possession of the Corporation

or the exempt employer will be disclosed and,

if requested, produced, to the Review Officer.
Most, if not all, of that material would in
the typical case be protected by privilege if
the Corporation or exempt employer were an
ordinary litigant. It cannot be intended that
they could withhold statements of witnesses

and other material gathered in the course of

an investigation leading to determination of a

claim. Such an interpretation would largely

defeat the purpose of the subsection.

His Honour then concludes:

It is implicit in the subsection that legal

professional privilege is not to apply

to material relevant to the proceedings.

In our respectful submission there can be

absolutely no doubt whatsoever that the court is

looking at all three classes of document to which I

have referred. My learned friend acknowledges in

his outline of argument, 3.5, as I understand it,

that in fact it is not challenged that

section 96(1) in fact abrogates the principle of

legal professional privilege. But, with respect,

that is the effect of what has occurred.

If the Court pleases, therefore, the position

is this, that here we have an applicant that, true,

is a statutory decision maker as an exempt employer

but nevertheless we say becomes a party to the

proceedings. I provide to the Court copies of

the - I am sure you have too many of them already -

Workers Rehabilitation and Compensation Act, simply

for the purposes of identify and looking at

section 96.

Motors 25/8/94

I direct the Court's attention, if I may, to section 96. I should start at section 95 and at

least explain how it is that it comes before the

Review Officer. Section 95 provides the right of:

A person who is directly affected by a

decision that is reviewable under

subsection (2) may apply for a review -

and that, of course, is what the worker did and the

reviewable decisions are under section 95(2) and it

was one of those decisions. Section 96 provides:

Where an application for review is referred to

a Review Officer, the Review Officer -

and that is Harbord is this case -

shall conduct a review of the decision to

which the application relates.

Disclosure:

A party to proceedings before a Review Officer

must disclose -

and so forth. We are a party to those proceedings.

TOOHEY J: Can I just ask you this, Mr Walsh: is there any

complaint about the order that the existence of the

material be disclosed as opposed to an order that

it be produced to the review authority and the

other side?

MR WALSH:	Only in the sense that ordinary principles of discovery would require that you at least disclose
that there is material that you have but not in a
way which would disclose exactly when that material was obtained.
TOOHEY J: Not when it was obtained, perhaps, but adequate

discovery might require the identification of the

material as including a film.

MR WALSH:  Yes. And the Review Officer would then be in a

position to analyse, if he chose to do so, whether

it was subject to legal professional privilege or

not.

TOOHEY J: Yes. It is just that I wanted to identify, if I

could, precisely what the complaint was. Is it

in relation to the order for production as opposed

to the requirement of the existence of the material

be disclosed?

MR WALSH:  I suppose that it is a dual challenge,

Your Honour, because whilst we do not quarrel with

Motors 6 25/8/94

a procedural requirement to allow the Review

Officer to be satisfied that legal professional

privilege and it was, in truth, properly claimed,

we say that the existence and the disclose in the

context of this section do not apply to legal

professional privilege.	Documents that are subject
to that.

TOOHEY J:	And why is that?
MR WALSH:	Because if we had to disclose the existence of it

then that may be, in effect, breaching the

advantage, I suppose, we have in relation to a

privileged document, for instance, disclosing it exists and that it was a document dated whatever

date it would be.

TOOHEY J:  I am not suggesting that you would necessarily

have to identify the date but in the same way that

an affidavit of documents would disclose the

existence of the opinions of experts, although

privilege would be claimed for those.

MR WALSH:	No, we do not challenge that, Your Honour.
TOOHEY J:	You are putting it fairly and squarely on the

basis of ordinary civil proceedings.

MR WALSH:	Yes, Your Honour. And we acknowledge that-in the case of one class of document, namely, that which
it was actually relied upon, there may well be a
good argument to say that it has been used for a different purpose, therefore legal professional
privilege simply does not arise.  We accept that.
But it is those other two classes of document that
concern us because if this decision stands we
will - and WorkCover is in exactly the same
position; and the Crown, which is an exempt employer - and exempt employers will not be able to
protect their interests at all, even though they
Officer in relation - - - are parties to the proceedings before the Review

TOOHEY J: Presumably if the decision stands a party could

be required to disclose communications between it

and its legal advisers.

MR WALSH: Absolutely, Your Honour. It must apply to

everything as a matter of principle. Logically

that must follow.

TOOHEY J:  I think I said disclose but "produce" is the operative word.

MR WALSH:  Produce, yes. So it, in our respectful

submission, is indeed an exceedingly important

issue that arises as a result of the application.

Motors 7 25/8/94

It involves a fundamental common law right. This

Court made it clear in both Baker v Campbell and

subsequently in the decision of Corporate Affairs

Commission v Yuill that privilege is a fundamental

common law right and in addition to that His Honour

Justice Dawson, certainly in Baker v Campbell, made

this comment, that:

In the interpretation of statutes there is a

presumption that there is no intention to

interfere with basic common law doctrines

unless the words of the statute expressly or

necessarily require that result.

Can I also say that consistent with principle

the rationale behind legal professional privilege,

which it is assumed we have in relation to this

film - the rationale is met also. It promotes the

rationale in Grant v Downs or that it promotes the
public interest because it assists and enhances the
administration of justice by facilitating the

representation of clients by legal advisers, the

law being a complex and complicated discipline.

This party, namely the applicant before the Review

Officer, is in exactly that position: needing

advice and assistance.

Finally, in our respectful submission, it is

not necessary to even consider the issue that was

agitated in Baker v Campbell as to whether it
actually extends beyond judicial and quasi-judicial

proceedings because this is a quasi-judicial proceeding in any event. But even if it was

necessary to go beyond that, then Corporate Affairs

Commission v Yuill recognize that it does extend beyond that.

Finally, in relation to the issue of

intention of Parliament, I have annexed to my

summary of argument a copy of section 37(3) of the

Administrative Appeals Tribunal Act to give a

comparison between section 96 and an Act which does

abrogate legal professional privilege. It is the

second last page and if you look at subsection (3):

This section has effect notwithstanding any

rule of law relating to privilege or the

public interest in relation to the production

of documents.

There is the clear intention that His Honour

Justice Dawson spoke of in the case of Baker v

Campbell. It is not present in the case at bar.

That being so we say, with respect, that what we

have put to the Court in Part IV of our outline of

argument is in fact adequate reason why special

leave should be granted, namely that the question

Motors 25/8/94

of whether the common law rule as to legal

professional privilege applies to a party

exercising a limited statutory function is of wide

application and importance.

The question of when a party that is

exercising a statutory function can become a

litigant so as to attract legal professional

privilege is of importance not only to decision

makers under this Act but also all decision makers

in like circumstances. And there are many Acts

that one could turn to to find decision makers

making decisions of this kind and then becoming a

party to subsequent proceedings. It is a matter of

considerable importance, in our respectful

submission.

McHUGH J: What about the problem that the Court held that

these documents are not privileged in any event?

MR WALSH:  In this case the Court has not determined that

they were not privileged because the actual claim

that was made was that indeed it was subject to

legal professional privilege brought into existence

solely for the purposes of legal advice. That was

the claim. That was not something that was

successfully challenged anyway, at any stage, and

the assumption therefore must be made that the

claim is correct, that it was brought into

existence for the purposes of getting legal-advice

and the only way in which it might not be

privileged is because, presumably, it may be that

you can never have privilege in circumstances where

you are a decision maker.

That is one possibility, I suppose. We say

that that is a very important issue to be

determined. But in any event we say that in this

case it is assumed that it is privileged and then

you have to find, as the Court does find, contrary

to what my learned friend says, that this

section 96 abrogates that fundamental common law

right. If the Court pleases, they are our

submissions.

MASON CJ: Yes, thank you, Mr Walsh. Mr Heywood-Smith.

MR HEYWOOD-SMITH: If the Court pleases, can I just invite

the Court to go one step back in the background to

this matter. In 1986 when the South Australian

Parliament amended the workers compensation

legislation, it brought in a new regime, one in

which it turned its back on the old litigious

system of the lease inter partes, and it

substituted an administrative scheme whereby a

statutory body, a corporation, became for all

employers, save and except a few, the decision

Motors 9 25/8/94

maker, the primary decision maker as to whether or

not a worker was entitled to the receipt of

benefits.

In respect of some employers, major employers,

of which this applicant is one, an exemption was

granted and those employers were given the right to

conduct the scheme themselves and so far as the

primary decision is concerned, the initial decision

as to whether or not an entitlement existed, that

exempt employer stood in the position of the

corporation. A primary decision having been made,

there were then certain rights of appeal to a

Review Officer and from there to a tribunal.	But
the basic administrative system and primary
decision maker was put in place.

In this particular matter the applicant does

not challenge the way that the Full Court directed

itself as to the law of legal professional

privilege and nor does it challenge the analysis

which the Full Court enters into at pages 25 to 27

of the application book as to the statutory

obligations of the decision maker. What the Full

Court says is that the exempt employer is charged

with the responsibility of arriving at a decision.

Having arrived at that decision it is bound to

communicate the decision to the worker so that the

worker can assess his position as to whether or not

he will appeal; in other words, to know why the

claim was rejected.

What the Full Court has said is that when the

primary decision maker undertakes that exercise,

that decision-making exercise, and if it were to create a document for that purpose, it cannot be creating a document solely for the purposes of

legal advice or for litigation. It necessarily is

creating that document for the purposes of

complying with its statutory obligation as the

primary decision maker. That is all this decision

says.

All that the applicant comes to this Court and does is to say, "The effect of this isn't

satisfactory because it means that an exempt

employer who has undertaken this decision-making

role is deprived of the opportunity at a subsequent

stage of cross-examining a worker with the worker

being ignorant as to the materials that it has

against him.

But, in my submission, the Full Court has

properly addressed that issue. The learned Chief

Justice makes it clear that the obligation is

simply to disclose the proper reasons, ie, that in

a particular instance the worker was not

Motors 10 25/8/94

,..

incapacitated because he was observed performing

actions inconsistent with incapacity and to

disclose to the Review Officer the existence of

materials. As the Full Court points out, it is up

worker, or at what stage that it occurs.

to the Review Officer as to whether or not the

His Honour the Chief Justice says in the

decision that it may well be appropriate for the

Review Officer to not disclose that material to the

worker prior to cross-examination. So that, in my

submission, the analysis of the Act by the Full
Court has not been challenged and was not before

the Full Court, nor is there any question raised as

to the application of the principles of legal

professional privilege. In my submission, this is

a simple case involving a simple question and the

answer has been simply answered by the Full Court

and there is, in my submission, sufficient doubt

attended upon the decision to warrant special leave

and, in any event, it is a construction of a local

Act, a South Australian Act, that does not have

application generally to other statutes in other

States.

TOOHEY J:  Mr Heywood-Smith, just in relation to what is

being challenged, if you look at the draft notice of appeal at page 41, what the appellant seeks is

to have quashed the declaration made by the.Full

Court that the second defendant is obliged by the relevant provision:

to disclose to the Review Officer and the

plaintiff any film and investigator's report
which is relevant -

And I take it "disclose" there is used in its technical sense: to discover the existence of. It then goes on:

to produce to the Review Officer any such film

and investigator's report.

Does that not raise the question of privilege?

MR HEYWOOD-SMITH:  If Your Honour goes to page 28 of the

application book and to the precise terms of

section 96(la), you will see that that section

itself requires that to occur. Section 96(la) is

in these terms:

A party to proceedings before a Review Officer
must disclose to the Review Officer and all

other parties -

necessarily the worker -

Motors 11 25/8/94

possession or power that may be relevant to
the proceedings and must, if the Review the existence of all material in the party's that material to the Review Officer.

Not to the worker. So the Act of itself covers the

situation that Your Honour puts to me.

TOOHEY J: Unless the Act is to be read against the ordinary

common law background of legal professional

privilege.

MR HEYWOOD-SMITH:  In respect of that issue, my submission

is that the Full Court must necessarily be correct

when it says that if a primary decision maker

obtains materials for the purposes of fulfilling

its obligation to make the decision, ie, if a claim

is made and the decision maker says, "Well, have

somebody do an investigator's report so that we can

make our decision", necessarily that document will

not have been created solely for the purposes of

litigation.

On the other hand, if there was a worker who was involved in litigation in respect of some

earlier claim, it was not a compensation claim, and
the employer had sought and obtained film or other
material and had it in its possession and
subsequently there was a subsequent event and a

claim was made, that material would remain

privileged. It was created in circumstances of

legal professional privilege, but that privilege

would be waived if the decision maker, the exempt

employer, used it in fulfilling its statutory

obligation.

TOOHEY J:  Why do you say it remains the subject of legal

professional privilege? Where does the legal

professional privilege stem from if not from a

common law?

MR HEYWOOD-SMITH:  From the common law. In the example that

I gave, prior to the making of the claim under this

Act, if a document was created for the purposes of

obtaining legal advice or for litigation. What I

am saying is that it having been created under

those circumstances, if it is subsequently used for
another purpose, ie, in this case for the purposes
of the exempt employer discharging its obligations

under section 53 to arrive at a decision, then

necessarily privilege is waived because, once it is

used for that purpose and relied upon,

section 96(la) imposes an obligation from the

exempt employer, or the corporation, to disclose

that material to somebody else, to a third party,

necessarily.

Motors	12	25/8/94
TOOHEY J:	Look at it from the other point of view.	The

worker concerned has made a statement to his legal

advisers. Section 96(1a) says that a party - the

worker is a party - must disclose the existence of

material in the party's possession. So presumably
the worker has to disclose the existence of a

statement made to the legal advisers.

MR HEYWOOD-SMITH:  If the Review Officer so requests.

TOOHEY J: No, that is only in relation to production. We

are talking about disclosure at the moment.	The
worker is bound to disclose the existence of a
statement made to the legal advisers.

MR HEYWOOD-SMITH:  I think that Your Honour has hit upon an

extreme example, but I think that I have to agree

with you.

TOOHEY J:  I am trying to test the operation of

section 96(la) and what is being said about it,

because I take you to be saying that the section is

not to be read as excluding legal professional

privilege;it is to be read as somehow against the

background of legal professional privilege which is

only lost if it is waived, as in this case by the
decision maker relying upon the film in order to
reach a decision. Or, alternatively, if the

material is shown to be brought into existence for

some purpose other than litigation or as well as

litigation.

MR HEYWOOD-SMITH:  Your Honour, of course the worker"is not

involved in the primary decision, the initial

decision.

TOOHEY J: Yes, I know, I appreciate that.

MR HEYWOOD-SMITH:  We are concerned in the facts of this

case with a document, a video film, being created

apparently, and the Full Court was prepared to

accept and the applicant was not prepared to

disclose to the Full Court during argument

precisely when it was created, but the Full Court

was allowed to assume and did assume that it was

created for the purposes of complying with its

obligation to arrive at the primary decision.

TOOHEY J:  On that footing you are not really c.oncerned with

legal professional privilege.

MR HEYWOOD-SMITH: Quite so. And that is what the Full

Court has said: legal professional privilege does not arise. We say that it is wrong to categorize

the issue raised in this matter as one of the Act

abrogating the rights of legal professional

Motors 13 25/8/94

privilege.	We say that that issue does not arise
at all.

McHUGH J: It does in one sense, does it not? Is your

argument not that the section does not abolish

legal professional privilege but when an exempt

employer brings into existence a document or

obtains information in the course of exercising the

powers and functions vested under section 63, then

that document, or that information, is not

protected by legal professional privilege?

MR HEYWOOD-SMITH:  That is the decision of the Full Court

and we would have thought that that was not

sufficiently attended with any doubt as to warrant

special leave being granted. Those are my

submissions.

MASON CJ:	Do you want to say anything in reply, Mr Walsh?
MR WALSH:	Yes, if the Court pleases. In response to that

last proposition that was put, that is true in

relation to the document, that it is used for the

purposes of making a determination, but it is not
true, we say with respect, for the purposes of the
document. After that function is finished, the
applicant then wishes to protect its own right in
relation to the proceedings before the Review

Officer. That is the issue that the Court also

decided, whether my friend likes it or not, because

what has happened here is that there was a two

level decision-making process.

The first one was: is there legal

professional privilege? Can it attach to the

documents that might come into existence by way of

the applicant bringing them into existence in

between the determination and the review? And if

there is not legal professional privilege, then how

should a discretion be exercised? It was a
two-pronged thing.	We say that the critical issue

is the first question. It was answered against us,

it means we cannot rely on legal professional

privilege and it has been denied to us.	If the
Court pleases.

MASON CJ:  The Court will announce its decision in this

application tomorrow morning.

AT 3.51 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 26 AUGUST 1994

Motors 14 25/8/94