Pece Calovski v Opal Packaging Australia Pty Ltd
[2024] FWC 1716
•28 JUNE 2024
| [2024] FWC 1716 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Pece Calovski
v
Opal Packaging Australia Pty Ltd
(U2023/10560)
| COMMISSIONER MATHESON | SYDNEY, 28 JUNE 2024 |
Application for an unfair dismissal remedy
Mr Pece Calovski (Applicant) made applications relying upon s.590(2)(c) of the Fair Work Act 2009 (the Act) for orders requiring both Opal Packaging Australia Pty Ltd (Respondent) and Forkpro Australia Pty Ltd (Forkpro) to produce documents relating to an application made by the Applicant for an unfair dismissal remedy.
The Applicant requested the following documents in the possession, custody or control of the Respondent and Forkpro:
A copy of all written and electronic communications, including but not limited to any letter, email, SMS text message, electronic message, recording, image or digital file relating to or in connection with Todd Brennan’s expert report dated 10 January 2024 (Expert Report), between Forkpro (and its directors, officers, employees or agents) and:
(a) the Respondent and its directors, officers, employees; and
(b) Ai Group in its capacity as an agent of the Respondent (Category 1).
A copy of all written and electronic documents, including but not limited to any note,
memoranda or digital file recording or summarising any meeting or discussion relating to or in connection with the Expert Report, between Forkpro (and its directors, officers, employees or agents) and:
(a) Opal Packaging Australia Pty Ltd and its directors, officers, employees; and
(b) Ai Group in its capacity as an agent of Opal Packaging Australia Pty Ltd (Category 2).
A copy of all written and electronic documents, including but not limited to any note,
memoranda or digital file comprising any draft of the Expert Report (Category 3).
The substantive proceedings involve an incident involving a forklift collision. In the substantive proceedings the Applicant alleges that the forklift brakes failed. The Respondent does not accept the Applicant’s version of events and submits the Applicant was untruthful in his explanations. The Respondent sought to rely on the Expert Report in support of its case that the forklift braking mechanism did not fail and the Applicant was untruthful.
Forkpro opposed production and the Respondent opposed production on three bases:
1.relevance and collateral purpose;
2.width;
3.legal professional privilege.
In relation to relevance and collateral purpose, by way of summary the Respondent submitted:
the Applicant had not explained how the documents were of clear relevance;
the Applicant already has the instructions provided to Mr Brennan by the instructing solicitor and the documents relied upon by Mr Brennan in preparing the Expert Report, it might be inferred that the Applicant hopes there is a secret set of contrary instructions and if that is the basis for production it is a very serious allegation of professional misconduct and there is no evidence upon which to ground such an assertion.
The Applicant submitted that the documents have clear relevance to how Mr Brennan formed his opinion set out in his Expert Report and that the Applicant would be prejudiced in his ability to properly prosecute the proceedings in the absence of an order for production of the documents. The Applicant submitted that the asserted relevance of the documents is clearly stated and obvious: it goes to having a complete and proper understanding of how and why Mr Brennan formed his opinion and this is a legitimate forensic purpose. The Applicant submitted production would enable the Applicant to properly test Mr Brennan’s evidence, thereby assisting the Commission in determining a key issue in the substantive proceedings.
Further, the Applicant submitted that the instructions annexed to Mr Brennan’s report are not a complete answer to the issues and do not elucidate the basis, for example, for the questions that were put to him, assumptions relied upon or Mr Brennan’s opinions of distances and gradients by photographs alone.
The Applicant also submitted that there was evidence that the types of documents sought existed as:
the second unnumbered paragraph of the instructions make reference to earlier correspondence, stating ‘[a]s foreshadowed in our earlier email’; and
paragraph 3 of those instructions also states ‘[m]eet with me at a suitable time (via Microsoft Teams) to prepare a short written statement to which your report will be attached. This meeting will occur in the week beginning 8 January 2023. You will also need to sign the statement and return it to me (scanned, via email is fine).’
In relation to width the Respondent submitted the terms ‘relating to or in connection with’ as referred to in Category 2 are ambiguous and the Respondent is presumably required to determine the breadth of those meanings for itself, putting itself at risk of proceedings for non-compliance.
The Applicant did not agree that the phrases ‘in relation to’ or ‘in connection with’ were ambiguous nor how the documents are too wide such that it could be oppressive. Rather, the Applicant contended that what is being sought is simple: if the documents relate to the expert report, those are the documents sought.
The Applicant submitted that if parties were unable to seek production of the documents unless they identified the specific document in question on the basis that it constituted fishing, the process of discovery and otherwise seeking production of documents would largely be rendered inutile. In this regard the Applicant submitted that all is required is that the documents be identified with ‘reasonable particularity’ and that specific particularity is not required.
In relation to legal professional privilege the Respondent submitted the documents sought are between an expert witness and a solicitor who holds a current practising certificate. Ms Vikki Sultana, the lawyer who engaged Mr Brennan to prepare the Expert Report, gave evidence establishing she is a practising lawyer, that she was instructed in around early December 2023 to engage an expert witness for the purpose of litigation in the substantive proceedings and in around mid-December she engaged Mr Brennan of Forkpro Australia Pty Ltd on behalf of the Respondent for the only purpose of providing legal advice to the Respondent and for use in current litigation. The Respondent submitted it was difficult to comprehend how an expert report prepared for a practising lawyer to be used in proceedings before the Commission would not be subject to privilege. The Respondent submitted that if the document had been created unilaterally by the expert the document would not be subject to privilege however if the document had been created by the expert in response to communications by the lawyer, and that that document had been sent from the expert in a communication to the lawyer that document would be privileged.
The Applicant submitted that privilege will be waived in respect of communications which influence or underpin the substance of the report, which may include drafts of the report where the draft report forms part of the communication. The Applicant submitted that the documents sought clearly have the capacity to influence or underpin the substance of Mr Brennan’s report. The Applicant submitted that Mr Brennan’s own draft reports do not attract privilege.
The Applicant submitted that the Commission should inspect the specific documents in respect of which the Respondent claims privilege and the Respondent agreed with this.
Consideration
Sections 589 and 590 of the Act confer discretionary powers on the Commission in determining the procedure to be followed in the matters before it, and how it informs itself in relation to those matters. This includes the Commission’s discretionary power to inform itself by requiring the production of documents, records or other information.[1]
The considerations relevant to the exercise of the discretion were summarised by Deputy President Anderson in D.A. v Baptist Care SA:
apparent (not necessarily direct) relevance to the issues in dispute;
whether a sound forensic basis for seeking the material has been provided or whether the orders represent a fishing expedition;
whether the documents are being sought for a collateral or improper purpose;
whether questions of legal professional privilege or confidentiality arise;
the implications for the party concerned including the cost, inconvenience and delay associated with compliance;
whether compliance would reveal internal deliberations as to industrial strategy or policy; and
the potential impact of production upon any contentions to be determined in the matter.[2]
The Deputy President went on to say:[3]
“As noted in D.S. v Anglican Community Care Inc:[4]
“[19] The above are not exhaustive and in this case there are also important public interest matters to consider. In addition, any one of the identified factors are not generally determinative in their own right. Relevance is however an important prerequisite and production orders, including those involving third parties, would rarely be made where such is not evident.
Further, to the extent that some of these considerations might militate against an order being made, the Commission might, in appropriate cases, utilise confidentiality orders under s.593 and s.594 of the FW Act, allow documents to be provided in a redacted form, and/or regulate access to the documents produced, subject to natural justice considerations.”
I accept that the documents have apparent relevance to how Mr Brennan formed his opinion set out in his Expert Report and that there is sound forensic basis for seeking the material. I do not consider that the orders sought amount to fishing or that they relate to a collateral purpose as the Applicant makes no suggestion of professional misconduct on the part of Ms Sultana. Rather, it is apparent that the Applicant is seeking to understand the bases upon which Mr Brennan has formed his opinion.
Legal and procedural considerations were taken into account in my decision to make orders for production. On a procedural basis, the orders were sought within close proximity to the date of hearing and it was unlikely that Forkpro (via Mr Brennan) was in a position to produce as my Chambers attempted to contact Mr Brennan and was made aware that he was on leave, returning the day of the hearing. Conscious not to move the hearing date in circumstances where arrangements have been made for witness attendance and counsel had been engaged, I decided to direct the focus toward documents to be produced by the Respondent.
Section 591 provides that the Commission is not bound by the rules of evidence and procedure. In this matter, legal professional privilege is claimed in relation to the documents sought. The doctrine of legal professional privilege is not merely a rule of evidence under the Evidence Act 1995 (Cth), but it is also a rule of substantive law and an important common law immunity, which applies to the Commission.[5] Legal professional privilege cannot be abrogated by statute except by clear express words. The Full Bench in Kirkman v DP World Melbourne Limited [2015] FWCFB 3995 noted that there is no provision in the Act which excludes the operation of the doctrine of legal professional privilege in relation to proceedings before the Commission.[6]
The two main categories of legal professional privilege were outlined by the Full Bench in Stephen v Seahill Enterprises Pty Ltd[7] (Seahill Enterprises):
“[62] There are two main categories of legal professional privilege. The first is legal advice privilege. It applies to confidential written and oral communications between a lawyer and a client or between lawyers acting for a client, or the contents of a confidential communication prepared by the lawyer, the client, or another person, for the dominant purpose of the lawyer(s) providing legal advice to the client. Thus, not only is the advice of the lawyer to the client protected, but also any communication or document passing from the client to the lawyer (such as the request for advice or a set of factual instructions) for the purpose of the provision of the legal advice. The second is litigation privilege. It applies to a confidential communication between a client and another person or the client’s lawyer and another person, or the contents of a confidential document that was prepared, for the dominant purpose of the client being provided with professional legal services relating to a current, anticipated or pending Australian or overseas legal proceeding (including a proceeding before the Commission) in which the client is, was or may be a party.”[8]
Legal advice privilege attaches to the contents of a confidential communication prepared by the lawyer, the client, or another person for the dominant purpose of the lawyer(s) providing legal advice to the client. Of relevance to these proceedings, litigation privilege applies to confidential communication between a client and another person for the dominant purpose of the client being provided with professional legal services relating to a current, anticipated or pending Australian legal proceeding, in which the client is, was or may be a party.
The Full Bench of this Commission in Seahill Enterprises outlined a number of principles concerning legal professional privilege:
(1)Legal professional privilege is a right belonging to the client, not the lawyer or any relevant third party.
(2)Legal professional privilege protects confidential communications rather than documents as such, and it is the nature of the communication within the document which determines whether or not the privilege attaches.
(3)A client making a claim of privilege carries the onus of establishing its claim.
(4)The “dominant purpose” for a communication is its “ruling, prevailing, paramount or most influential purpose”, and is not merely the “primary” or “substantial” purpose.
(5)A communication in a document brought into existence for the dominant purpose of a client being provided with professional legal services will be privileged notwithstanding that some ancillary or subsidiary use of the document was contemplated at the time.
(6)What is the dominant purpose is a question of fact, to be determined objectively.
(7)An appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence.
(8)Usually the purpose of a document will be that of the maker of the document, but in some cases it will be the purpose of the person who called the document into existence, such as a solicitor commissioning the provision of a technical report.
(9)Conduct inconsistent with the maintenance of the confidentiality which legal professional privilege is intended to protect may give rise to an imputed waiver of the privilege. Whether inconsistent conduct gives rise to waiver is informed by notions of fairness. Questions of waiver are matters of fact and degree.[9]
The assessment of whether legal professional privilege attaches to a document is a question of fact to be determined on an objective basis, having regard to the evidence, the nature of the documents or communications and the parties’ submissions.[10]
In Australian Securities & Investments Commission v Southcorp Limited,[11]Lindgren J set out the following summary of principles regarding whether documents in relation to expert evidence attract privilege:
1. Ordinarily the confidential briefing or instructing by a prospective litigant’s
lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege.[12]
2.Copies of documents, whether the originals are privileged or not, where the copies were made for the purpose of forming part of confidential communications between the client’s lawyers and the expert witness, ordinarily attract the privilege.[13]
3.Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness’s own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications.[14]
4. Ordinarily disclosure of the expert’s report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents.[15]
5. Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents.[16]
6.It may be difficult to establish at an early stage whether documents which were before an expert witness influenced the content of his or her report, in the absence of any reference to them in the report.[17]
I am satisfied that Ms Sultana is a practising lawyer, that the documents or communications were created or prepared in anticipation of or during pending litigation for the dominant purpose of the litigation and that prima facie, the documents sought attract privilege and this was not ultimately disputed by the Applicant. In Malone v La Playa Nominees Pty Ltd[18] Matthews AsJ stated:
“79. I do not accept the broad and simplistic proposition that once an expert report is filed and served, privilege in respect of drafts of the expert report is waived. Rather, at common law privilege will be waived in respect of communications which influence or underpin the substance of the report, which communications may include drafts of the report where the draft report forms part of the communication. This is because to maintain privilege in such communications is inconsistent with the party relying on the expert report”.
As submitted by the Applicant, privilege will be waived in respect of communications which influence or underpin the substance of the report, which may include drafts of the report where the draft report forms part of the communication. As such I required that the Respondent produce the documents on a confidential basis to the Commission for inspection.
Conclusion
Having inspected the disputed documents I observed that comments had been made by Ms Sultanta in drafts of the Expert Report. Having been satisfied that these comments had the capacity to influence the substance of the report I considered it appropriate for the pages depicting these comments to be provided to the Applicant and these documents were provided to the Applicant on the day of the hearing.
Having inspected the disputed documents, I am satisfied that privilege has not been waived in respect of the other documents produced as they do not influence or underpin the substance of the Expert Report, with the exception of a copy of Mr Brennan’s signed statement delivered by Australia Post to Mr Brennan sent by Ai Group. This signed statement was already before the Commission and available to the Applicant.
COMMISSIONER
[1] Section 590(2)(c) the Act.
[2] [2019] FWC 7358 at [37].
[3] [2019] FWC 7358 at [38].
[4] [2019] FWC 3377.
[5] Stephen v Seahill Enterprises Pty Ltd [2021] FWCFB 2623 at [61]; Kirkman v DP World Melbourne Limited [2015] FWCFB 3995 at [23] (DP World Melbourne Limited).
[6] DP World Melbourne Limited at [23].
[7] [2021] FWCFB 2623.
[8] Seahill Enterprises at [62].
[9] Ibid at [63].
[10] See also The Commissioner of Taxation of the Commonwealth of Australia v Pratt Holdings Pty Ltd [2005] FCA 1247 at [30].
[11] [2003] FCA 804 at [21].
[12] Wheeler v Le Marchant (1881) 17 ChD 675; Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246; Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141 at 151 per Pincus JA, at 160 per Thomas J.
[13] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141;Spassked Pty Ltd v Commissioner of Taxation (No 4) (2002) 50 ATR 70 at [17].
[14] Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141 at 161 -162.
[15] Attorney-General (NT) v Maurice(1986) 161 CLR 475 at 481 per Gibbs CJ, 487—488 per Mason and Brennan JJ, 492-493 per Deane J, 497—498 per Dawson J; Goldberg v Ng (1995) 185 CLR 83 at 98 per Deane, Dawson and Gaudron JJ, 109 per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd[1995] FCA 870;Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89 at [46].
[16] Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141 at 148-150 per Pincus JA at 161 per Thomas J.
[17] Dingwall v Commonwealth of Australia (1992) 39 FCR 521; Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No 2) (1998) 83 FCR 397 at 400; Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89 at [46].
[18] [2021] VSC 271.
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