RLA Morgans v Vrebac

Case [2022] WADC 86


JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   RLA MORGANS -v- VREBAC [2022] WADC 86

CORAM:   BOWDEN DCJ

HEARD:   5 SEPTEMBER 2022

DELIVERED          :   9 SEPTEMBER 2022

FILE NO/S:   APP 31 of 2022

BETWEEN:   RLA MORGANS

Appellant

AND

DARIO VREBAC

Respondent

ON APPEAL FROM:

Jurisdiction              :   WORKCOVER WA ARBITRATION SERVICE

Coram:   ARBITRATOR WALLBRIDGE

File Number            :   A96282


Catchwords:

The learned arbitrator ordered production of a private investigator's report protected by legal professional privilege to the other party pursuant to s 193(6) of the Workers' Compensation and Injury Management Act 1981 (WA) - Legal professional privilege not abrogated by s 193(6) - Appeal allowed

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Leave to appeal granted
Appeal allowed
Notice of Contention dismissed

Representation:

Counsel:

Appellant : Mr N F Morrissey
Respondent : Mr J J Sheldrick

Solicitors:

Appellant : HWL Ebsworth Lawyers (Perth)
Respondent : CLP Legal Pty Ltd

Case(s) referred to in decision(s):

Amana Living v Soliven [2013] WADC 118

Atanasoska v Ingham Enterprise Pty Ltd [2009] WASCA 17

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250

Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1987) 188 CLR 501

Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 225 ALR 266

CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543

Grant v Downs [1976] HCA 63; (1976) 135 CLR 674

Mohammadi v Bethune [2018] WASCA 98

Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230

Pacific Industrial Co v Jakovljevic [2008] WASCA 60

Paula Susan Chappell as Executor of the Estate of Robert Hastings Hitchcock v Goldspan Investments Pty Ltd [2021] WASCA 205

Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357

Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Payments Board [2021] WASCA 208

Schreuder v Murray [No 2] [2009] WASCA 145

Silbert and Addison as Executors and Trustees of the Estate of Gerte Hoffman v Steinberg as Executor of the Estate of Morris Steinberg [2010] WASCA 113

SMEC Australia Pty Ltd v Valentine Falls Estates Pty Ltd [2011] WASCA 138

Warley Pty Ltd v ADCO Constructions Pty Ltd (1988) 8 BCL 300

Wilson v Metaxas [1989] WAR 285

BOWDEN DCJ:

  1. This appeal is from an interlocutory decision of an arbitrator of the Workers' Compensation Arbitration Service made pursuant to s 193(6) of the Workers' Compensation and Injury Management Act1981 (WA) (WCIMA) whereby the arbitrator ordered the production to the respondent of an investigation report that was the subject of the appellant's legal professional privilege.

  2. The appellant says the learned arbitrator erred in law in holding that he had the power to furnish (perhaps more correctly expressed as the power to order…

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AGLC
RLA Morgans v Vrebac [2022] WADC 86
Case
[2022] WADC 86
Decision Date

CaseChat Overview and Summary

In the case of RLA Morgans v Vrebac, the parties were engaged in a dispute related to workers' compensation in Western Australia. The primary issue before the court was whether a statutory provision, specifically section 193(6) of the Workers' Compensation and Injury Management Act 1981 (WA), could compel the production of a report prepared by a private investigator that was protected by legal professional privilege. The court was required to determine if the statutory provision abrogated legal professional privilege and whether the learned arbitrator's order for the production of the report was lawful.

The central legal issue was the interpretation of section 193(6) of the WCIMA and its interaction with legal professional privilege. The respondent argued that the statutory provision explicitly abrogated legal professional privilege and that the arbitrator's order was justified. The respondent relied on various statutory provisions and case law to support the argument that a statute can abrogate legal professional privilege by clear wording and necessary implication. The appellant, on the other hand, contended that legal professional privilege was not abrogated by the statute and that the order for the production of the privileged report was unlawful.

The court concluded that the plain text of section 193(6) of the WCIMA explicitly refers to privilege and constitutes an express abrogation of legal professional privilege. The court found that there was no ambiguity or absurdity in the statutory language and that the respondent's reliance on extrinsic materials was misplaced. The court held that the learned arbitrator's order for the production of the private investigator's report was lawful, and thus the appeal was allowed. The court further noted that there were provisions in the WCIMA that explicitly allow for the abrogation of legal professional privilege and that these provisions did not conflict with section 193(6). The court also clarified that the arbitrator's power to order production under section 193(6) was subject to certain conditions and limitations, which were properly considered by the arbitrator in this case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

They point out that in one of the cases referred to by the appellant, Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, the actual provision under consideration in that case being s 155(1) of the Trade Practices Act 1974 (Cth) contained no reference to privilege and the majority said that no basis for an implication much less a necessary implication that they abrogated legal professional privilege. However, in this case s 193(6) of the WCIMA explicitly refers to privilege when it states 'despite any rule of law relating to privilege or the public interest'. The respondent argues that a statutory provision can abrogate legal professional privilege by clear wording and necessary implication and point out that there are many other statutory provisions that abrogate legal professional privilege and refers to decisions affecting the Personal Injuries Proceedings Act 2002 (Qld), the Crime Commission Act 1985 (NSW), the Uniform Civil Procedural Rules 1999 (Qld), the Civil Law (Wrongs) Act 2002 (ACT), the old Australian Securities and Investments Commissions Act 1989 (Cth), and the Criminal Assets Recovery Act 1990 (NSW). The respondent says that extrinsic materials cannot be relied upon because under s 19(1)(a) or s 19(1)(b) of the Interpretation Act there needs to be ambiguity or absurdity or an ordinary meaning conveyed by a text leading to a result that is manifestly absurd or unreasonable and that cannot be established in this case. The respondent stresses that it is not absurd or unreasonable for the WCIMA to abrogate legal professional privilege as pursuant to s 205 and s 204 aspects of legal professional privilege have been abrogated expressly. They say the clear text of s 193(6) contains an explicit reference to privilege and is an express abrogation of privilege. They say that s 206(1) of the WCIMA allows some excuses to avoid production of the documents, but explicitly excludes circumstances where an order is made under s 193. Section 206(2) is to allow the arbitrator to view documents to determine whether there is a power to order production. The respondent says say there is no conflict between s 206(2) and s 193(6). They point out that s 193(5) of the WCIMA provides for subsidiary legislation to exempt specific kinds of documents from the operation of s 193, and to specify cases and circumstances in which an arbitrator is not to exercise the arbitrator's powers under s 193 and r 50 of the Workers' Compensation and Injury Management Arbitration Rules 2011 (WA) precludes the arbitrator from exercising the power in s 193(6) unless the arbitrator is satisfied that the order was necessary for the fair, just, economic, informal and quick resolutions of disputes. The respondent says that s 206(2) enables the arbitrator to examine documents to determine whether such exceptions apply, and the arbitrator did exactly that in this case, examined the documents and determined those issues.