RLA Morgans v Vrebac
[2022] WADC 86
•9 SEPTEMBER 2022
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:
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.
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 the production) of the investigator's report the subject of the appellant's legal professional privilege to the respondent.
The respondent says the learned arbitrator made no error of law and that if he did so the appellant has not established that a substantial miscarriage of justice would occur if the decision was not reversed and filed a notice of contention on the basis that the learned arbitrator 'committed a mixed error of fact and law in finding that advice privilege (legal professional privilege) attached to the (investigator's report) and instead should have found that the evidence was insufficient to establish privilege' and therefore on any one of those three basis the appeal should be dismissed.
Brief background to the worker's compensation application
The basic facts which are not in dispute were that Mr Vrebac was employed by the appellant as a truck driver. He applied to WorkCover in respect to his claim for compensation alleging he had a psychiatric condition as a result of being subject to constant bullying and sexual harassment during the course of his employment.
The claim was disputed.
In June 2020 a solicitor appointed by the appellant commissioned a private investigator's report from Quayside Investigation and they produced an investigator's report dated 15 July 2020 with various annexures.
On 12 November 2021 Mr Vrebac made an interlocutory application in the WorkCover proceedings seeking orders that the appellant produce to it 'a copy of an investigation report and statements obtained by Quayside Investigations into the employment of one MP an ex-employee of the appellant's'.
The appellant opposed the application on the basis that the report was subject to legal professional privilege and that claim was dealt with by Arbitrator Wallbridge.
The arbitrator's decision
Arbitrator Wallbridge's first decision of 7 February 2022 found that the appellant's legal professional privilege attached to the investigator's report and that s 193(6) clearly intends to and does abrogate the common law immunity and rule of legal professional privilege.
The learned arbitrator found that s 193(6) gave him discretion to abrogate the appellant's claim for privilege over the investigator's report and ordered that the investigator's report be produced to him for the purpose of carrying out an inspection of the report to determine whether he should exercise the discretion he found was contained in s 193(6) in favour of Mr Vrebac.
That having been done on 6 April 2022, the learned arbitrator published a second decision stating that having read the contents of the report he found that an order for production was necessary for the 'fair, just, economic and quick resolution of the dispute' and ordered production of the report.
Pursuant to the learned arbitrator's orders, an email containing the investigator's report was forwarded to both the appellant's and respondent's solicitors.
The law
Section 247(1) of the WCIMA permits a party, with the leave of the District Court, to appeal to the District Court against an arbitrator's decision. Leave is not to be granted unless a question of law is involved.
An appeal involves a question of law whether either an error of law or an error of mixed law and fact is involved: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250.
An error of law is involved where amongst other things findings of facts have been made or inferences drawn without any evidence to support them but no error of law is involved in making a wrong finding or inference of facts on the evidence: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355 - 356.
A decision does not involve an error of law unless the error is material to the decision in the sense that it contributes to it, but for the error the decision would have been or might have been different: BHP Billiton Iron Ore Pty Ltd v Brady.
An error of fact alone is insufficient. If the only question is whether evidence ought to be accepted no question of law is involved: Warley Pty Ltd v ADCO Constructions Pty Ltd (1988) 8 BCL 300. Therefore a decision said to be against the evidence and/or against the weight of the evidence does not involve an issue involving a question of law, and an arbitrator does not make an error of law merely because he or she finds a fact wrongly or upon a doubtful basis: BHP Billiton Iron Ore Pty Ltd v Brady; or simply because he or she prefers one version of the evidence or one set of inferences over another version of evidence or set of inferences.
Leave should be granted if in all the circumstances it is in the interests of justice that there be a grant of leave: Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230.
Pursuant to s 247(5) of the WCIMA an appeal is a review, not a hearing de novo. It is said that the review is 'a real review' and an appellant must show a proper basis for disturbing the decision under challenge, such as an error of fact, law or logic, and persuade the court that the arbitrator's decision should be varied, discharged, or otherwise disturbed: Pacific Industrial Co v Jakovljevic [2008] WASCA 60.
The principles applicable to interlocutory appeals and the requirements for the granting of leave are in addition to those specified in s 247. The principles which apply to an interlocutory appeal are well settled. Generally the appellant must show that the original decision was wrong or at least attended by sufficient doubt to justify the grant of leave and that substantial injustice would be done if the decision was not reversed: Wilson v Metaxas [1989] WAR 285, 294. Those principles are not however inviolable and leave may be granted whenever the interests of justice require it: SMEC Australia Pty Ltd v Valentine Falls Estates Pty Ltd [2011] WASCA 138.
The availability of an avenue to an appeal from interlocutory decisions subject to the grant of leave, should not be seen as providing an unrestricted opportunity for the lengthy reventilating of arguments which failed at first instance. The determination of whether the decision from which leave to appeal is sought was wrong or attended with sufficient doubt to justify the grant of leave to appeal, should not ordinarily require or involve argument of a complexity and duration of the arguments presented at first instance. Ordinarily the court determining whether or not to grant leave to appeal would take a broad approach to that question: 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; Amana Living v Soliven [2013] WADC 118 (Stavrianou DCJ).
The statutory provisions
Section 193 of the WCIMA provides:
193.Arbitrator's powers to obtain information
(1)An arbitrator may order any person (whether or not a party to a dispute before the arbitrator) -
(a)to produce, at a time and place specified in the order, the documents or material specified in the order; or
(b)to furnish specified information within a time specified in the order.
(2)The order may require the documents or material to be produced or the information to be furnished -
(a)to the arbitrator or to another party to a dispute before the arbitrator, in the case of an order given to a party to the dispute; or
(b)to the arbitrator in the case of an order given to a person who is not a party to a dispute before the arbitrator.
(3)If a person fails without reasonable excuse to produce a document or material or furnish information in compliance with an order given to the person under this section, the person cannot as a party to a proceeding before the Registrar or an arbitrator have the document, material or information admitted in the proceeding.
(4)An arbitrator may exercise powers under this section at the request of a party to a dispute before an arbitrator or of the arbitrator's own motion.
(5)The regulations or arbitration rules may make provision for or with respect to any of the following matters -
(a)exempting specified kinds of documents, material or information from the operation of this section;
(b)specifying cases and circumstances in which an arbitrator is required to exercise the arbitrator's powers under this section;
(c)specifying cases and circumstances in which an arbitrator is not to exercise the arbitrator's powers under this section.
(6)An arbitrator may order a person to produce a document, material or information despite any rule of law relating to privilege or the public interest in relation to the production of documents.
Section 204 of the WCIMA provides:
204.Privilege against self-incrimination
(1)A person is not excused from complying with a requirement under this Division to answer a question, produce a document or other material, or furnish information, on the ground that the answer, the production of the document or other material, or the furnishing of the information, might incriminate the person or render the person liable to a penalty.
(2)However neither -
(a)an answer given by that person that was given to comply with the requirement; nor
(b)the fact that a document or other material produced by the person, or information furnished by the person, to comply with the requirement was produced or furnished,
is admissible in evidence in any criminal proceedings against the person other than proceedings for perjury or for an offence against this Act arising out of the false or misleading nature of an answer.
Section 205 of the WCIMA provides:
205.Legal professional privilege in relation to medical reports
(1)A legal practitioner is not excused from complying with a requirement under this Division to answer a question in relation to a medical report or produce a medical report on the ground that the answer to the question would disclose, or the report contains, a privileged communication made by or to the legal practitioner in his capacity as a legal practitioner.
(2)Subsection (1) does not apply in respect of a question that does not relate directly to the treatment, or nature or extent of impairment, or assessment of degree of impairment, of a worker.
(3)A medical report may be produced by the legal practitioner in compliance with a requirement under this Division with the omission of passages that -
(a)do not relate directly to the treatment, or nature or extent of impairment, or assessment of degree of impairment, of a worker; and
(b)contain a privileged communication made by or to the legal practitioner in his capacity as a legal practitioner.
Section 206 of the WCIMA provides:
206.Other claims of privilege
(1)Unless it would be contrary to section 204 or 205 or an order under section 193, a person is excused from answering a question or producing or furnishing a document, material or information in a proceeding if the person could not be compelled to answer the question or produce or furnish the document, material or information in proceedings in the Supreme Court.
(2)An arbitrator may require a person to produce a document or other material to the arbitrator for the purpose of determining whether or not it is a document or material that the arbitrator has power to require the person to produce.
A brief summary of the appellant's case
The appellant says that the question of law is whether s 193(6) of the WCIMA gives an arbitrator a discretion to order that a party to the WorkCover proceedings provide documents that are subject to a proper claim for legal professional privilege to another party in the proceedings.
The appellant says that s 193 and s 206(2) of the WCIMA provide the power to the arbitrator to call for a document to ascertain himself whether the report was in fact privileged allows but says that if the arbitrator determines that the report is privileged, he has no power to require that it be provided to another party.
Section 206(2) acknowledges that there will be some documents which the arbitrator has the power to require the person to produce to another party and some documents that the arbitrator will not have the power to require the person to produce to other parties.
The appellant says if the arbitrator's decision that he has a discretion to abrogate privilege and provide one party's privileged documents to another was correct then s 206(2) would be unnecessary because under s 193(6) an arbitrator will always have the power to order that privileged document would be provided to another party.
They say that to interpret s 193(6) in that manner would allow an arbitrator to order that any document subject to legal professional privilege be provided to the opposing party, and that could encompass an order to produce the worker or the employer's statements, or instructions provided to their solicitors, or solicitor's advice to their client in connection with the very arbitration. The appellant say that such a ruling would open the floodgates to litigation and undermine the ability of parties to investigate litigated matters through their lawyers and receive confidential advice in WorkCover proceedings and this would lead to the essential role played by legal professional privilege in enhancing the administration of justice being defeated.
The appellant says that the scheme of the WCIMA is that it expressly introduced provisions which deal with claims of privilege, such as s 204 relating to self-incrimination, s 205 relating to legal professional privilege in relation to medical reports, and s 206(2) clearly encompasses that some documents which the arbitrator has the power to order be produced to him will not be ordered to be produced to the other parties and this must encompass documents to which legal professional privilege attaches.
The appellant argues that s 193(6) is the only provision within the WCIMA which gives the arbitrator the power to order documents be produced to the arbitrator irrespective of a claim for privilege so they can be inspected by the arbitrator and this is similar to the power created by O 26 r 10 of the Rules of the Supreme Court 1971 (WA) which provide that the court may at any stage in the proceedings order that any document be provided to the court.
The appellant says that a construction of the Act which considers s 193(6) in isolation does not follow the statutory construction process prescribed in Mohammadi v Bethune [2018] WASCA 98 and that the court must be mindful that the choice of constructions does not turn so much on linguistic fit than on an evaluation of the relevant coherence of alternates within the identified statutory objects or policies.
The appellant says that under the Interpretation Act 1984 (WA) the course may be had to extrinsic materials (s 19(1) and s 19(2)). They point out that the Minister's second reading speech gives no indication of any intention to create the unusual result of giving arbitrators the power to order one party's privileged documents be provided to another and whilst the second reading speech makes express reference to legal professional privilege not being able to be claimed in respect of medical reports (which is addressed by s 205) there is no reference of legal professional privilege being abrogated in general and that the WCRA explanatory memorandum dealing with s 206 shows a clear intent of Parliament to approach privileged claims in the like way to how they have been dealt with in the Supreme Court.
The appellant says that s 193(6) cannot be said to serve the purpose of abrogating legal professional privilege generally when it was not referred to in any report or parliamentary debate and the strong inference is that Parliament had no such intention.
The appellant says that for these reasons the learned arbitrator committed an error in law in finding that he had a discretion to disclose documents that were legal professional privileged to the other party.
In relation to the notice of contention the appellant says say that the learned arbitrator committed no error in taking into account the circumstances in which the investigator's report was created and in making the factual findings that he did. They say that the arbitrator correctly informed himself, by calling for and examining the investigator's report and reached the conclusion after examining the report that legal professional privilege applied, and there was a clear basis for that finding and that no error of law is made merely because the arbitrator found facts wrongly or upon a doubtful basis: Atanasoska v Ingham Enterprise Pty Ltd [2009] WASCA 17.
The appellant says that in conducting a real review this court can inspect the report and determine whether the claim to privilege was properly made and having done so they say the conclusion can readily be reached that it was commissioned for the dominant purpose of obtaining legal advice and this was clearly the learned arbitrator's finding and that the notice of contention should be dismissed.
A brief summary of the respondent's case
The respondent says that the appellant's argument that s 193(6) of the WCIMA does not allow an arbitrator to order a party's privileged documents to be provided to another party in the proceedings is completely contrary to the plain reading of s 193(2)(a) which gives an arbitrator the power to order production of documents both to the arbitrator and any other party to the dispute.
The respondent says that the plain language of s 193(6) does not limit the power to order production of a document only to an arbitrator.
The respondent says that the scheme of the WCIMA is that it does abrogate significant common law powers. For example, s 205 abrogates privilege in relation to some medical reports, s 204 abrogates a privilege against self-incrimination. Consistent with that, s 193(6) and s 193(2) abrogates legal professional privilege.
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.
In addition, the respondent say that the appellant has not demonstrated that there is any substantial injustice which would be done if the decision was not reversed.
By their notice of contention, the respondent says that the arbitrator's finding that 'in all of the circumstances [he was] satisfied that the claim for legal professional privilege is apparently proper, and the appellant has not discharged the evidentiary onus and persuaded me that the claim for privilege is unfounded or mistaken' is in error.
The respondent says that the appellant adduced no evidence in support of its claim for privilege, relying merely upon submissions and that at its highest it established that the respondent's employer through its legal representative provided written instructions for the investigator's report.
The respondent observes that the appellant did not produce those written instructions and produced no evidence to support their claim for privilege. The respondent says this is insufficient to discharge the legal onus and the arbitrator erred in finding that the circumstances surrounding the report's existence enlivened legal professional privilege and should have found that the appellant had not adduced evidence capable of discharging its ultimate legal onus to establish privilege pointing out that in CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48 there was affidavit evidence upon which the court was able to base its decision.
Conclusions
Legal professional privilege is not merely a rule of substantive law, it is an important common law right or perhaps, more accurately, an important common law immunity: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49.
Courts do not construe legislation as abolishing, suspending or adversely affecting rights, freedoms and immunities that the courts have recognised as fundamental unless the legislation does so in unambiguous terms: Daniels [43] (McHugh J). Accordingly, it is well settled that the statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear works or a necessary implication to that effect.
The focus of statutory construction is upon the text of the provisions having regard to their context and purpose. The statutory text is a surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its wider sense, including the general purpose and policy of the provisions. Context includes the existing state of the law, the history of the legislative scheme, and the mischief to which the statute is directed. The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. The intended reach of a legislative provision is to be discerned from the words of the provision and not by making a a priori assumption about its purpose: Paula Susan Chappell as Executor of the Estate of Robert Hastings Hitchcock v Goldspan Investments Pty Ltd [2021] WASCA 205 [32] ‑ [35], citations omitted.
The primary object of statutory construction is to construe the relevant provisions so that it is consistent with the language and purpose of all of the provisions of the statue. The legislative history and extrinsic materials cannot displace the meaning of the statutory text, nor is their examination an ending itself. The statutory text and not non-statutory language seeking to explain the statutory text is paramount.
The construction or choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly the choice is from 'a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural' in which case the choice 'turns less on linguistic fit than on evaluation of the relative coherence of the alternates which identify statutory objects or policies'. The task of statutory interpretation should proceed on a basis of assuming that words in the legislation be afforded some measure of coherent utility, put in more colloquial terms, the text deployed within the legislation ought to be assessed on the basis that it has 'some work to do': Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Payments Board [2021] WASCA 208 [58] - [64], citations omitted.
In my view, there is no ambiguity or any need to resort to extrinsic materials.
It is significant that when the legislature abolished other significant common law rights such as a privilege against self-immunity and legal professional privilege in relation to medical reports insofar as legal practitioners are concerned it did so clearly and unequivocally by s 204 and s 205.
Section 206(1) whilst expressly stating that unless it would be contrary to s 204 or s 205, or an order under s 193, excuses a person from answering a question or producing or furnishing a document, if the person could not be compelled to do so in proceedings in the Supreme Court. Legal professional privilege excuses a person from answering a question or producing or furnishing a document in proceedings in the Supreme Court.
Section 206(2) enables an arbitrator to have a document produced to him for him to determine whether he has the power to require it to be produced to the other side. This section clearly recognises that there may be some material that the arbitrator has the power to require the person to produce to another, and other material where he does not have that power.
Whilst on a literal reading of s 193(6) it, when read in isolation and containing as it does the reference to 'despite any rule of law relating to privilege or the public interest in relation to the production of documents', would be sufficient to abrogate legal professional privilege.
However statutory provisions are to be read in context and construed so that it the provisions are consistent with the language and purpose of all of the provisions of the statue. A harmonious reading of s 193, s 204, s 205 and s 206 compels a conclusion that s 193(6) does not empower an arbitrator to order production of a document the subject to legal professional privilege to another.
The combination of the statutory provisions whereby common law rights of privilege against self-immunity and legal professional privilege in relation to medical reports as far as legal practitioners are concerned are clearly abrogated by specific provisions (s 204 and s 205), the existence of s 206(1) which in my view leaves intact the concept of legal professional privilege as it applies in the Supreme Court, the power under s 206(2) to enable an arbitrator to have a document produced to him to determine whether he has a power to require it to be produced to the other side coupled with the well‑established principle that Parliament does not take away a significant substantive right unless it does so by clear words or necessary implication, leads me to conclude that the learned arbitrator's decision was wrong and he was in error in law and I find that that s 193(6) does not empower an arbitrator to order a document the subject of legal professional privilege to be provided to the other party.
If it was Parliament's intent to alter a long-existing substantive common law right by abolishing legal professional privilege by s 193(6), it would have been specifically and unequivocally referred to and for those reasons I find that s 193(6) does not empower an arbitrator to order a document the subject of legal professional privilege be provided to the other party.
I reject the respondent's claim that the appellant had not demonstrated any substantial injustice would be done if the decision was not reversed. The provision of a document the subject to legal professional privilege to the other party in circumstances where that document contains private investigator's record of what potential witnesses have said to him, fundamentally alters the whole nature of any subsequent proceedings. It fundamentally alters the proceedings in that the respondent has been provided material which is confidential to the appellant and is potentially free to use that material as he wishes at the trial. In my view, the fundamental altering of the nature of a trial process does establish a substantial injustice. It is in the interests of justice that there be a grant of leave to appeal.
In relation to the notice of contention that the learned arbitrator erred in finding that legal professional privilege applied to the report, I find that there was no error made by the learned arbitrator.
Legal professional advice privilege attaches to confidential communications made for the dominant purposes of obtaining or giving legal advice. Legal professional litigation privilege applies to confidential communications passing between a client, the client's legal advisor and third parties for the dominant purpose of use in litigation which is either pending or in contemplation. There must be a real prospect of litigation as distinct from a mere possibility. The test for the privilege is anchored to the purpose for which the documents were brought into existence: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1987) 188 CLR 501. The party resisting disclosure carries the onus of proving that legal professional privilege applies: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674.
A dominant purpose is one that predominates over other purposes. It is a prevailing or paramount purpose: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357.
Where the question involves a document, the relevant purpose is a purpose for bringing into existence the document containing or comprising part of the confidential communications: Grant v Downs. The purpose for which a communication is undertaken, or a document is brought into existence is a question of fact that must be determined objectively. Evidence of the intent of the person who made or caused to be made the document is not conclusive: Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 225 ALR 266.
The investigator's report is addressed to a legal practice director of a law firm and is marked subject to legal professional privilege and confidentiality.
The report states:
We acknowledge receipt of your email dated the 30th June 2020, relating to the above matter and referring to instructions provided to this agency by your client, RLA Polymers, in their letter dated 15th of June 2020.
Please be advised that insofar as is currently possible, we have now completed our investigations into those issues raised by your client in that letter, a copy of which we understand has been provided to your office by RLA Polymers.
The report advises that:
… in his letter to the agency, PI, group HR manager for RLA Polymers, provided a summary of RLA Polymer's concerns relating to the alleged activities and behaviour of their sales manager in Western Australia, one NP, and requested the agency undertake the following inquiries in that regard:
•Interview and obtain a written statement from [MG], regarding the alleged illegal or inappropriate behaviour of [NP].
•Interview and obtain a written statement from [DV], regarding the alleged illegal or inappropriate behaviour of the RLA Polymer's Sales Manager.
•Interview and obtain statements from any other persons we may deem necessary, willing or capable of providing evidence as to the illegal or inappropriate behaviour of [NP].
•Obtain whatever evidence we could relate to the illegal or inappropriate behaviour of [NP] that might be considered damaging to the good name, reputation and standing of RLA Polymers in Western Australia.
The investigator's report reveals that instructions that had been provided by an employee of the lawyer's client, which instructions were confirmed by the lawyer, with the request that the report be provided to the lawyer.
The matters to be investigated were the alleged illegal and inappropriate behaviour of Mr NP an employee of the lawyer's client. The investigator's report included statements from people described as witnesses relating to the evidence that they would give in relation to the matter, and the investigator's report includes the author's assessment of their credibility and reliability. It is clear that the investigator's report occurred a number of months before the respondent served his worker's compensation claim on the appellant but after the respondent had been retrenched from his position, and it is clearly established that legal advice privilege can be claimed in respect of information or documents which contain or reveal confidential communications between a client and his or her lawyer made for the dominant person of giving or receiving legal advice, whether or not litigation is subsisting or within the reasonable contemplation of the client: Schreuder v Murray [No 2] [2009] WASCA 145 [59] (Buss JA).
The dominant purpose for the preparation of the investigator's report is to provide witness statements to the lawyers of the appellant. The only reasonable inference is that proceedings were contemplated, thus the reference to witnesses, the evidence they would give and the author's comments on their credibility. The contents of the report, who provided instructions, the conformation of those instruction by the lawyer, and to whom the report was to be presented or provide additional support for that conclusion.
The learned arbitrator was correct to hold that the investigator's report was protected by legal professional privilege, and I reject the respondent's arguments to the contrary.
The orders that I make are as follows:
1.The appellant is granted leave to appeal. The appeal is allowed.
2.The decision of Arbitrator Wallbridge dated 6 April 2022 is quashed and in lieu thereof it is ordered that:
(a)the interlocutory application lodged by Mr Vrebac with the WorkCover Arbitration Service on 12 November 2021 be dismissed.
(b)all copies of the report, its annexures and any document that references the content of the report held by WorkCover are to be placed in a sealed envelope to remain on WorkCover's file and not be opened by any person otherwise and in accordance with an order of a judge.
(c)Mr Vrebac and his solicitors do destroy any and all copies of the report and its annexures that they have in their power, possession or control, including any file notes or communications which make reference to the content of the report.
(d)Mr Vrebac and his solicitors do delete all electronic documents and electronic materials that are in his or their possession, power, custody or control that constitute either or both:
(i)a copy of any of the document or part there of; and/or
(ii)a record of the content of any of the documents or part thereof.
(e)Mr Vrebac and his solicitors make no effort to recover any of the documents or copies referred to in (d) above.
3.The respondent's notice of contention is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KH
Associate
9 SEPTEMBER 2022
RLA Morgans v Vrebac [2022] WADC 86
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