DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Kirkman
v
DP World Melbourne Limited
(U2014/16067)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 29 JANUARY 2016

Application for relief from unfair dismissal – claim of legal professional privilege upheld save for one attachment to a document and two documents held to be outside the scope of the Order to produce issued by the Commission on 11 March 2015 – privilege not waived in respect of remaining documents – request for access to remaining documents denied.

[1] On 17 April 2015 Mr Mark Kirkman filed a notice of appeal against a decision issued by Commissioner Bissett 1. The Commissioner’s decision was made in connection with an unfair dismissal application which Mr Kirkman had made against DP World Melbourne Ltd (DP World - the Respondent) under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Kirkman’s appeal concerned, among other things, the Commissioner’s decision to deny Mr Kirkman access to a report prepared by Mr David Gunzburg of DGHR Services (the Report) and several associated documents (together referred to as the Documents) on the basis that the Documents were not relevant to Mr Kirkman’s unfair dismissal application. DP World objected to the release of the Documents claiming legal professional privilege (privilege).

[3] Mr Kirkman’s appeal was heard by a Full Bench on 17 June 2015. In its decision 2 handed down on 25 June 2015 the Full Bench granted Mr Kirkman permission to appeal insofar as his appeal concerned the Documents, upheld his appeal regarding the Documents, quashed the relevant aspects of the Commissioner’s decision and remitted DP World’s claim of privilege in relation to the Documents to me for determination.

[4] The privilege issue was heard on 18 September 2015. At the hearing, Ms Erin Hawthorne appeared with permission for DP World and Ms Fiona Knowles of Counsel appeared for Mr Kirkman. Witness statements were provided by Mr Kristian Bolwell 3, Senior National Legal Officer for the Maritime Union of Australia (MUA), on behalf of Mr Kirkman and Ms Hawthorne4 on behalf of DP World. Neither witness was required for cross examination.

[5] For the reasons set out below, I have determined that the Documents, other than the copy of the Federal Court of Australia’s Practice Note CM7 – Expert Witnesses in Proceedings in the Federal Court of Australia attached to the email of 5 June 2014 and the documents dated 27 and 28 February 2015 both of which I consider to fall outside the scope of the Order to produce issued by the Commission on 11 March 2015, are protected by privilege and that privilege has not been waived in respect of the remaining documents.

DP World’s case

[6] DP World objected to the production of any orders for access to the Documents on the basis that they contain communications subject to legal privilege at common law and subject to ss.118 and 119 of the Evidence Act 1995 (Cth) (the Evidence Act). DP World further asserted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWC 605
Decision Date: 29 JANUARY 2016

CaseChat Overview and Summary

The case of Mark Kirkman against DP World Melbourne Limited involved an application for relief from unfair dismissal. Kirkman sought access to documents he claimed were protected by legal professional privilege, while DP World Melbourne contested the assertion and sought to deny access. The Fair Work Commission presided over the dispute. The central legal issues revolved around the extent of legal professional privilege applicable to the documents in question and whether the privilege had been waived. Additionally, the court needed to determine if certain documents were within the scope of an earlier order to produce documents issued on 11 March 2015.

The Commission carefully examined the nature of the documents and the context in which they were created. It found that while most of the documents were protected by legal professional privilege, one attachment to a document was not privileged, and two documents were outside the scope of the earlier order. The Commission concluded that Kirkman had not waived the privilege in respect of the remaining documents. However, considering the nature of the dispute and the importance of maintaining the confidentiality of legal advice, the Commission denied DP World Melbourne's request for access to the remaining privileged documents.

The Fair Work Commission's reasoning was grounded in the principles of legal professional privilege and the specific context of the employment dispute. The decision highlighted the importance of protecting communications between a client and their legal advisors, except where it is clearly demonstrated that such privilege does not apply. The Commission's conclusion that the privilege had not been waived, except in specific instances, underscored the need for careful consideration of each document's circumstances. Ultimately, the Commission's decision balanced the competing interests of access to information in an employment dispute with the preservation of legal professional privilege.

No further orders were made beyond the denial of access to the remaining privileged documents. The decision stands as a reminder of the delicate balance required in employment disputes involving claims of legal professional privilege.

Orders