Glendolyn Maberly v Indian Ocean Group Training Association
[2012] FWA 5504
•28 JUNE 2012
[2012] FWA 5504 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Glendolyn Maberly
v
Indian Ocean Group Training Association
(U2011/13660)
COMMISSIONER WILLIAMS | PERTH, 28 JUNE 2012 |
Application to set aside section 590(2) Order.
Introduction
[1] This matter involves an application by the Indian Ocean Group Training Association (the Respondent) to set aside an Order made on 6 June 2012 (the Order), following the Applicant’s request pursuant to section 590(2) of the Fair Work Act 2009 (the Act)that the Respondent produce a document.
[2] The document is the advice provided to the Respondent by their solicitors Clayton Utz (the Advice). The Advice is referred to in an email exchange from the then Chairperson of the Respondent, Ms Leslie Heath, to the Applicant. The date of the relevant email is 8 September 2011, sent at 12.48 p.m.
[3] The Respondent is claiming that legal professional privilege (privilege) applies to the Advice and accordingly the Order issued to produce the Advice should be set aside.
[4] The parties have both provided written submission as to whether the Order issued should be set aside.
[5] The issue to be determined is whether the Respondent, by its conduct, waived any claim of privilege in respect of the Advice.
Consideration
[6] The 8 September 2011 email contains the following statements:
“…we [the Respondent] sought legal advice from Clayton Utz as to the validity of the employment offer in November. Their advice to us was that there is no employment offer in place and that we were under no obligation to offer you [the Applicant] further employment.”
And further:
“...we [the Respondent] have legal advice in regards to unfair dismissal and it is very unlikely that an action would succeed.”
[7] The Applicant submits that by making these statements the Respondent, through Ms Heath, behaved in a manner inconsistent with the confidential nature of privilege and that this had the effect of impliedly waiving privilege. Accordingly the Applicant submits the Order should stand and not be set aside.
[8] The parties referred me to a number of decisions including the decision of The High Court in Mann v Camell 1 and Bennett v Chief Executive Officer, Australian Customs Service2.
[9] Considering these authorities and the extracts from the email above I accept that there was a voluntary disclosure by Ms Heath of the gist or conclusion of the Advice in question. It is also apparent that this was being communicated in order to emphasise or promote the strength of the Respondent’s position versus the Applicant’s position. I agree as the Applicant submits that this apparently was being done in order to discourage or dissuade the Applicant from pursuing the matter further.
[10] I accept it is now inconsistent and unfair, having voluntarily disclosed the substance of the Advice in this manner, for the Respondent to now seek to maintain privilege in respect of that Advice.
[11] Accordingly it is my decision that the Order previously issued on 6 June 2012 will stand and will not be set aside.
COMMISSIONER
1 (1999) 201 CLR 1.
2 (2004) 210 ALR 220.
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