Roadside Products v Cocker
[2018] TASSC 6
•13 February 2018
[2018] TASSC 6
COURT: SUPREME COURT OF TASMANIA
CITATION: Roadside Products v Cocker [2018] TASSC 6
PARTIES: ROADSIDE PRODUCTS
v
COCKER, Mark
FILE NO: 2597/2016
DELIVERED ON: 13 February 2018
DELIVERED AT: Hobart
HEARING DATES: 24 July 2017
JUDGMENT OF: Brett J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – When remedy available – Jurisdiction – Magistrate identified that complaint should be amended to cure defects but made no further determination – Not an order capable of review – No jurisdiction.
Justices Act 1959 (Tas), ss 30, 31, 107, 116.
Work Health and Safety Act 2012 (Tas), s 33.
Barnes v Hovington [2015] TASSC 35, cited.
Kidman & Co v Lowndes CM & Director of Public Prosecutions [2016] NTCA 5, considered.
Aust Dig Magistrates [1345]
Criminal Law – Procedure – Information, indictment or presentment – Averments – Uncertainty – Duplicity and ambiguity – Whether each subparagraph of a health and safety provision is a separate duty and provision – Single health and safety duty provision – Several contraventions of the provision may be charged as a single offence and therefore no invalidity for duplicity.
Work Health and Safety Act 2012 (Tas), ss 19, 33, 233.
Kent v Gunns Limited [2009] TASSC 30, 18 Tas R 454, considered.
Chugg v Pacific Dunlop Limited [1988] VR 411, not followed.
Kidman & Co v Lowndes CM & Director of Public Prosecutions [2016] NTCA 5, followed.
Aust Dig Criminal Law [3066]
Magistrates – Coroners – Disclosure of information – Client legal privilege – Whether report produced to coroner was protected by privilege – Respondent made voluntary disclosure of evidence to coroner and client legal privilege was lost.
Coroners Act 1995 (Tas), s 53(1)(a).
Evidence Ac 2001 (Tas), ss 117, 122.
Bailey v Department of Land and Water Conservation [2009] NSWCA 100; Powercor Australia Ltd v Perry [2011] VSCA 239, considered.
Esso Australia Resources v FCT [1999] HCA 67, 201 CLR 49; Hastie Group Ltd v Moore [2016] NSWCA 305, 339 ALR 635, cited.
Aust Dig Magistrates [1382]
REPRESENTATION:
Counsel:
Applicant: R Taylor
Respondent: S Thompson
Solicitors:
Applicant: HWL Ebsworth Lawyers
Respondent: Director of Public Prosecutions
Judgment Number: [2018] TASSC 6
Number of paragraphs: 101
Serial No 6/2018
File No 2597/2016
ROADSIDE PRODUCTS v MARK COCKER
REASONS FOR JUDGMENT BRETT J
13 February 2018
On 17 November 2013, Joshua Dingjan suffered fatal injuries when the forklift he was driving during the course of his employment with the applicant overturned, thereby crushing him. On 29 October 2015, the respondent, who holds the position of Director of Industry Safety with Worksafe Tasmania, made a complaint alleging that the applicant had committed breaches of the Work Health and Safety Act 2012 (the Act), in particular of health and safety duties imposed on the applicant by the Act. The alleged breaches relate to the circumstances in which the forklift overturned. The complaint has not yet been heard, but there have been a number of rulings made by the presiding magistrate, Mr Marron, in respect of preliminary arguments. Two of those rulings are the subject of notices to review. The notices were heard together.
Notice to review 2597/2016 relates to a ruling as to whether an investigation report prepared by Worksafe Tasmania in respect of the relevant incident, is properly subject to a claim of client legal privilege by the respondent. Notice 1469/2017 concerns a purported ruling in respect of a claim by the applicant that the complaint is defective because of a failure to sufficiently particularise the acts and omissions of the applicant, so as to allege an offence known to law, and further that the complaint is bad for duplicity. The applicant asserts that such defects render the complaint invalid because, as the relevant limitation period has expired, they cannot be cured by amendment. If this submission is correct, then the proceedings will be at an end, and the privilege question will be otiose. Accordingly, it is appropriate to deal with the pleading issue first.
The respondent raises a preliminary jurisdictional question in respect of both notices. The respondent submits that neither notice relates to a decision which is amenable to review under s 107 of the Justices Act 1959. In any event, the respondent asserts that each ground is without substantive merit.
Notice of motion 1469/2017 – The validity of the complaint
Although the complaint, as filed, alleged two separate breaches in the alternative, the respondent has now abandoned reliance on the first charge. The applicant did not oppose the magistrate striking out this charge. Accordingly, the only matter for consideration in these proceedings is a charge which alleges a breach of s 33 of the Act.
By s 33, a person who has a health and safety duty under the Act commits an offence if that person fails to comply with that duty. The relevant duties are set out in Divs 2, 3 and 4 of Pt 2 of the Act. The duty which is the subject of the charge in question arises under s 19, which is the only section contained in Div 2. Both Div 2 and s 19 are headed "Primary duty of care". Section 19 relevantly provides as follows:
"(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of —
(a)workers engaged, or caused to be engaged by the person; and
(b)workers whose activities in carrying out work are influenced or directed by the person —
while the workers are at work in the business or undertaking.
(2) …
(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable —
(a)the provision and maintenance of a work environment without risks to health and safety; and
(b)the provision and maintenance of safe plant and structures; and
(c)the provision and maintenance of safe systems of work; and
(d)the safe use, handling and storage of plant, structures and substances; and
(e)the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
(f)the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
(g)that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking."
The charge, as originally formulated in the complaint, was in the following terms:
"1 ROADSIDE PRODUCTS PTY LTD (ACN 133 084 634) ('the defendant') at Launceston in Tasmania, on or about 7 November 2013, being at all material times a person in control of a business or undertaking ('PCBU') for the purposes of the Work Health and Safety Act 2010 ('the Act') and being a PCBU that owed health and safety duties to persons, including Joshua John Dingjan ('Mr Dingjan'), including a duty to provide and maintain a work environment without risks to health and safety, a duty of the provision of safe systems of work, and a duty of the provision of information and instruction that was necessary to protect all persons from risks to health and safety arising from work carried out as part of the conduct of the PCBU at a workplace, namely 45-59 St Leonards Road Launceston, failed so far as was reasonably practicable to provide and maintain a work environment without risks to health and safety, the provision of safe systems of work, and information and instruction that was necessary to protect all persons – and in particular the worker – from risks to health and safety arising from work CONTRARY TO section 33 of the Work Health and Safety Act 2010, further particulars of such failure particularised below.
Further particulars
(a)At all material times the defendant was a PCBU within the meaning of the Act and by virtue of section 19 of the Act owed health and safety duties to the worker;
(b)On or about 7 November 2013 the worker was at the workplace;
(c)The worker was engaged as an employee of the PCBU as a factory hand;
(d)At the time and place referred to in particular 1(b) herein the worker was licensed and authorised to unload trucks utilising a forklift truck;
(e)The worker used a forklift truck to unload steel sheets from a truck at the worksite;
(f)At the time and place referred to in particular 1(b) and whilst undertaking the task referred to in particular 1(e), the worker drove the forklift down a slope to the rear left side of the truck to unload the steel sheets;
(g)In the process of doing that which is referred to in particular 1(f), the worker reversed the forklift with the steel sheets on the tynes, and when manoeuvring the forklift truck it overturned;
(h)The worker, who was not wearing his seatbelt, was crushed by the truck as it overturned and his [sic] the ground;
(i)At the time and place referred to in particular 1(b) herein the defendant, so far as was reasonably practicable, failed to:
i Provide and maintain a work environment without risks to health and safety, and safe systems of work, in that:
1The defendant failed to eliminate and, or, minimise the risks of a forklift working on a sloping (or inclined) surface whilst unloading delivery trucks;
2The defendant failed to provide an adequate flat surface for a forklift truck to operate whilst unloading delivery trucks;
3The area where the forklift truck would unload from trucks was a sloping (or inclined) surface;
4There was no designated loading and, or, unloading zone;
5There was no designated loading exclusion zone;
ii Provide training, information and instruction that was necessary to protect all persons – and in particular the worker – from risks to health and safety arising from work, in that:
1 There was no standard operating procedure or instruction for the unloading or loading of trucks at the workplace.
and in so failing the defendant failed to ensure that it complied with its health and safety duties and committed a Category 3 offence within the meaning of section 33 by virtue of section 19 of the Act."
On 15 August 2016, the respondent filed a document headed "Amended Particulars". The effect of the document was to delete the alternative count. It also deleted pars 1 and 2 of particular (i).
This document was the subject of discussion before the magistrate on 1 September 2016. The alternative count was struck out by the magistrate, with the consent of the applicant, during the course of that discussion. However, there was no agreement in relation to the proposed amendment of the remaining charge. In the context of the proposed amendment, counsel for the applicant gave notice that he would submit that the charge did not disclose "a valid offence known to law" and, further, was bad for duplicity. The argument was adjourned for submissions at a later time.
Those submissions were made on 23 November 2016. The magistrate handed down his ruling on 8 May 2017.
In essence, the applicant argued that, whether or not the charge was amended as proposed, the particulars alleged in the charge were inadequate because they did not identify the acts or omissions which were necessary to constitute the offence in question. In particular, the applicant asserted that the particulars did not sufficiently identify:
"a the risk to the health and safety of employees which Roadside had a duty to address;
b the measures which Roadside should have taken to reduce that risk;
c how such measures could be said to be reasonably practicable;
d what the training should have consisted of;
e what the information should have consisted of;
f what the instruction should have addressed;
g why (in the circumstances) of this case it was necessary to provide the aforementioned information, instruction and training."
The applicant's counsel further submitted to the magistrate that the failure to provide these particulars had the effect that the charge did not comply with the requirements of the Justices Act and was therefore invalid and should be struck out. The limitation period, which was a period of two years from the date that the offence first came to the notice of the regulator, which was the day of the incident, had expired: s 232 of the Act. It was argued that it would be unfair to permit amendments which would cure the identified deficiencies in the pleading, and hence make valid an otherwise deficient charge, out of time.
The applicant also submitted that the pleading was bad for duplicity. This submission was based on the assertion that each subparagraph of s 19(1) and (3) created a separate duty, and, accordingly, the breach of each duty was a separate offence under s 33. According to the submission, the complaint effectively rolled up several alleged offences within one charge.
The magistrate, relying on the decision of Porter J in Kent v Gunns Limited [2009] TASSC 30, 18 Tas R 454, rejected the submission in relation to duplicity. However, his Honour agreed with the applicant's submission that there were deficiencies in the particulars, although, without expressly deciding the point, he does not seem to have accepted the submission that this rendered the charge invalid.
Because the respondent had disavowed reliance on particulars 1 and 2 (of subpar (i) i), his Honour considered particulars 3, 4 and 5 only. In relation to particular 3, he noted that it was unclear how it was alleged that a sloping or inclined surface created a risk. He observed that the particulars "in their current state are cryptic in form and content particularly in relation to the identification of the specific risk to health and safety". His Honour noted, however, that these issues could be answered by reading the investigation report.
The magistrate then considered whether he should permit further amendment of the complaint to resolve the difficulties with the particulars. His Honour noted that the limitation period had expired and that defence counsel claimed that the applicant would be prejudiced by any further delay. He went on to say:
"One consequence of delay is the ability of witnesses for either side to remember clearly the circumstances and events giving rise to the charge before the Court. In considering whether to allow the prosecution to amend, I take into account the possibility of a lost opportunity for defence to locate and call relevant witnesses to address any issues arising from any subsequent amendments.
Of course the defence will not be in a position to address that issue until they see what exactly the prosecution propose by way of amendment. The allegations contained in the charge are very serious and notwithstanding the delay that has occurred, I intend to give them leave to apply to amend the charges and particulars. The scope of the amendment is limited however to the matters referred to in this ruling, and is not an open invitation to substantially recast the case, an opportunity to clarify the allegations on the basis upon which they are put.
The prosecution have 14 days to file and serve notice of any proposed amendments. I will then hear from the parties at a suitable time if there is any objection raised to those amendments. I'll cause a copy of this ruling to be emailed to both parties."
The applicant filed the notice seeking review of this ruling on 29 May 2017. The ground challenges his Honour's failure to dismiss the charge on the basis that it did not disclose an offence known to law, and further because it was bad for duplicity. The notice also challenges his Honour's implicit intimation that he would entertain an application to amend the particulars. Subsequent to the magistrate's ruling, the respondent presented a document to the applicant suggesting further amendments to the charge. I have seen that document. The applicant asserts that the proposed amendments would still leave the charge deficient for the same reasons. In any event, there is no suggestion that the matter has come back before the magistrate, nor that his Honour has made a decision as to the proposed amendments. In fact, it does not seem that his Honour has made any formal order of amendment at all.
Jurisdiction to entertain the motion to review
Counsel for the respondent submits that the magistrate's ruling is not amenable to review under s 107 of the Justices Act. That section provides that a person who is aggrieved "by an order of justices" may move this Court to review that order. Section 116 of that Act defines "order" to include "conviction, dismissal of complaint, determination and adjudication". Counsel argues that the magistrate's ruling did not contain an order that falls within the ambit of that definition.
In order to properly consider the submission, it is necessary to understand the nature of the issue being considered by the magistrate. It can be accepted that the respondent had disavowed reliance on particulars 1 and 2. Accordingly, his Honour was dealing with the submission that he should dismiss the charge because it was defective in the sense already explained. His Honour was required to determine the submission having regard to the requirements of pleading contained in ss 30 and 31 of the Justices Act. The relevant parts of those sections are as follows:
"30 Statement of offences, &c
(1) Any complaint, summons, warrant, or other document that is laid, issued, or made for the purpose of, or in connection with, proceedings before justices shall be sufficient if it —
(a) describes the matter of complaint with which the defendant is charged or of which he is convicted in ordinary language, avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the matter of complaint; and
(b) contains such particulars as will give reasonable information of the nature of the matter complained of.
31 Irregularities and amendments
(1) An objection shall not be taken or allowed to a complaint in respect of —
(a) an alleged defect therein, in substance or in form; or
(b) a variance between it and the evidence in support thereof.
(2) Notwithstanding the provisions of subsection (1), where —
(a) a complaint fails to disclose an offence or matter of complaint; or
(b) the defendant appears to have been prejudiced by any defect or variance referred to in that subsection —
the justices shall, unless the complaint is amended as provided in subsection (3), dismiss the complaint.
(3) If it appears to the justices that the complaint —
(a)fails to disclose an offence or matter of complaint, or is otherwise defective; and
(b)ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure the defect —
the justices may amend the complaint upon such terms as may be just."
It is apparent that s 30 specifies the minimum requirements for a valid complaint. Section 31 deals with the procedural implications of a defect in the substance or form of the complaint, including a failure to comply with s 30.
The objection raised by the applicant before the magistrate was that the complaint failed to disclose an offence or matter of complaint. His Honour concluded that the form of the complaint was defective because of a failure to provide sufficient particulars. In effect, his Honour found that there was a failure to comply with s 30(1)(b), that is, to provide such particulars as will give reasonable information of the nature of the matter complained of. Having regard to the provisions of s 31(3), in those circumstances, his Honour was required to consider whether or not the complaint ought be amended and, if so, whether or not he should exercise his discretion to amend the complaint "upon such terms as may be just". His Honour clearly had jurisdiction to entertain and, if appropriate, make such amendment, but was required to consider whether it would be just to do so. This required consideration of the fact that any amendment would be granted well outside the expiration of the limitation period. Provided that the complaint to be amended is valid, there is no impediment to an amendment after the limitation period has expired provided that this can be "done without injustice". See Malahoff v White [1991] TASSC 60; Barnes v Hovington [2015] TASSC 35. As Porter J said in Barnes v Hovington at [25]:
"[25] As an examination of the cases shows, no injustice is done where the amendment results in a defendant facing a charge which is the same in pith and substance to that originally faced, or is a cognate one; that is, allied in nature or akin in quality. Injustice or unfairness may nonetheless arise, depending on the stage of the proceedings at which the application to amend is made."
Counsel for the applicant, Mr Taylor, argues that these principles do not apply to this case because the charge is a nullity as it fails to comply with s 30(1)(b). Accordingly, he argues, the charge was not valid when the limitation period expired, and, hence amendment should not be permitted outside the limitation period. He relies heavily on the submission that a complaint which does not allege an offence known to law cannot be cured by amendment after expiration of the limitation period, where the effect of the amendment would be to charge an offence.
The deficiency in this argument is that it ignores the express provisions of s 31(3). In S Kidman & Co v Lowndes CM & Director of Public Prosecutions [2016] NTCA 5, the Court of Appeal of the Northern Territory, when dealing with provisions similar to s 30 of the Justices Act, said, at [104]:
"[104] The finding that the complaint does not comply with s 22A of the Justices Act either in its specificity or in the aspect of particulars does not lead to the conclusion that it was invalid in the sense that the proceeding is a nullity. In circumstances where a charge is defective for those reasons, but that irregularity may be cured by amendment, it cannot be said that the charge is a nullity. Director of Public Prosecutions v Poniatowska [2011] HCA 43; (2011) 244 CLR 408 at [49]. That focuses attention on the statutory power of amendment, and whether it may reach the irregularity in this case."
The Court of Appeal was considering a similar issue to that in this case. The case related to a charge under legislation that for all practical purposes was identical to the Justices Act. The appellant had been charged with the breach of a cognate provision to s 33, in particular s 32 of the Northern Territory legislation. That charge related to the breach of a health and safety duty.
The Court of Appeal held that the complaint, in its form prior to the expiration of the limitation period, was defective because it did not satisfy the equivalent provision to s 30 of the Justices Act. In particular, it did not properly describe the acts or omissions "… said to constitute the relevant failure, the factual matters constituting the relevant risk, or the state of affairs the appellant is said to have failed to ensure in terms similar to the non-exhaustive formulations in subs 19(3) of the WHS Act. The complaint makes no attempt to identify what reasonably practicable measures the appellant could have taken in the circumstances to ensure the health and safety of the deceased."
For the reasons already noted, the Court of Appeal held that although the charge was defective, the irregularity was capable of cure by amendment. However, any such amendment would occur after the expiration of the limitation period. The court held that the magistrate was required to consider whether the complaint ought be amended to cure the relevant defects, but the fact that any such amendment would occur outside the limitation period would give rise to a number of considerations applicable to that question. In particular, any such amendment could not have the effect of charging a different offence out of time and, in any event, should be refused if it would otherwise give rise to injustice or unacceptable prejudice. It noted a number of ways in which material injustice or prejudice could manifest. The court described this in the following terms at [119]:
"[119] There are a number of ways in which material injustice or prejudice could conceivably manifest. In circumstances where the application for amendment is made after the conclusion of a trial but before judgment is pronounced, injustice may lie in the fact that the defendant was precluded from testing or leading evidence directed to the complaint as proposed to be amended. There may be circumstances in which the proposed amendment to the complaint will call into question issues where the relevant evidence has been lost, or is likely to have been lost. There may be circumstances in which an application to amend is made so long after the commission of the alleged offence, or the expiry of the limitation period, that it would be oppressive to allow the amendment. There may be circumstances in which a defendant has unwittingly arranged its affairs such that it is unable to fairly defend itself if an amendment is permitted to cure a defect in the complaint. Finally, there may be circumstances in which the public interest in the expeditious resolution of criminal litigation militates against amendment."
A matter which the court considered of considerable importance to the question of amendment was whether the appellant was able to identify the true nature of the alleged offence from other information that had been received by it. It noted that relevant information may have become available as a result of the issue and service of a prohibition notice and an improvement notice. Such information may also be provided by the prosecution brief of evidence.
In the case before me, the magistrate correctly identified that the original and proposed amended particulars of the complaint were defective in that they did not "give reasonable information of the nature of the matter complained of". In particular, insofar as the complaint alleged a failure to provide and maintain a work environment without risk to health and safety, the complaint did not identify the risks in question. Further, it provided little, if any, information as to how unloading from a sloping surface or failing to provide designated loading or unloading zones, or a designated loading exclusion zone, would obviate the relevant risk. In terms of the provision of training information or instruction, there was no particularisation of the standard operating procedure or instruction for the loading or unloading of trucks that would obviate the risk in question. These deficiencies meant that it was impossible for the applicant to understand the manner in which it was alleged that it had breached its duty under s 19 of the Act.
Despite these deficiencies, I am satisfied that the complaint was not invalid so as to render the proceedings a nullity. The charge alleges the essential elements of an offence under s 33 of the Act. It clearly asserts the existence of the health and safety duty and the failure to comply with that duty. It discloses an offence. However, what is required is further clarification of the way in which it is alleged the applicant has committed the offence. It is defective in that it does not contain "such particulars as will give reasonable information of the nature of the matter complained of": Justices Act, s 30(1)(b). Accordingly, in compliance with s 31(3), the magistrate correctly identified that it was necessary to consider whether he ought amend the complaint to cure these defects. Such consideration would necessarily involve all of the considerations already referred to, including the impact of any information made available to the applicant within the limitation period.
It is clear, therefore, that the magistrate had not completed the procedural process required by s 31(3). He had proceeded no further than identifying the defect. Had the matter been relisted and further argued, there would have been an opportunity for consideration of the various matters relevant to the exercise of his discretion, as noted in Kidman & Co v Lowndes. This may have included the assessment of the information available to the applicant prior to the expiration of the limitation period.
In these circumstances, I am satisfied that the magistrate has not yet made an order which is capable of review. His ruling implicitly accepts that the complaint alleges an offence known to law and, hence, the proceedings are not void. In this respect, he is not mistaken. However, although his Honour has identified deficiencies in the particulars of the complaint, there has been no determination or adjudication because the magistrate has not yet completed the procedural process set out in s 31(3). His decision cannot be reasonably anticipated because he has not yet been provided with sufficient information to enable him to properly make the determination as to whether the complaint ought be amended so as to cure the defect, and as to whether he ought exercise his discretion in that regard.
Accordingly, the review is not authorised by s 107 and I am without jurisdiction. The motion will be dismissed. I make the observation that it is appropriate for the magistrate to finalise his consideration of the matter, having regard to the provisions of s 31(3), guided by the observations that I have made in the course of these reasons.
Although it is not strictly necessary for me to do so, it is also appropriate, having regard to the argument before me, to make some observations concerning the question of duplicity. A complaint which is bad for duplicity is capable of cure, in particular, by election, and hence, for the reasons expressed above, will not render the proceedings invalid. If there is duplicity, then this matter will also need to be addressed by the magistrate.
As already noted, the argument relies upon the proposition that each subparagraph of s 19, that is s 19(1) and (2), and each subparagraph of s 19(3), creates a separate duty. If that is correct, then the breach of each individual subparagraph will create a discrete offence under s 33.
This submission is supported by the decision of Fullagar J in Chugg v Pacific Dunlop Limited [1988] VR 411. The submission is made notwithstanding the decision of Porter J in Kent v Gunns Limited (above) in which his Honour held that s 9(1) of the predecessor of the current legislation, the Workplace Health and Safety Act 1995, created one offence only. That legislation is significantly different in structure from the current legislation, which is substantially similar to the legislation considered in Chugg. In Chugg, Fullagar J held that each subparagraph of the equivalent to s 19(3) of the current legislation, created a separate obligation, a breach of which was constituted as an offence having regard to the equivalent to s 33. Accordingly, the allegation of several breaches within a single charge rendered the charge bad for duplicity. His Honour considered that this defect could not be cured without the prosecution electing the offence in respect of which it would proceed. This view is consistent with s 29 of the Justices Act.
Section 233 of the Act appears to directly abrogate the prohibition against duplicity in respect of offences arising under s 33. Section 233 provides as follows:
"233 Multiple contraventions of health and safety duty provision
(1) Two or more contraventions of a health and safety duty provision by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences.
(2) This section does not authorise contraventions of 2 or more health and safety duty provisions to be charged as a single offence.
(3) A single penalty only may be imposed in relation to 2 or more contraventions of a health and safety duty provision that are charged as a single offence.
(4) In this section —
health and safety duty provision means a provision of Division 2, 3 or 4 of Part 2."
To have any real meaning, the section must be interpreted in the context of the operation of the offence provisions set out in Div 5 of Pt 2. Those sections create offences in respect of conduct which is contrary to or inconsistent with a health and safety duty as defined by s 30. Section 233 therefore has clear effect and meaning if a health and safety duty provision is referable to a provision of Divs 2, 3 or 4 of Pt 2 that imposes a duty. Section 233(1) will apply where two or more contraventions of such a provision have been alleged, provided the contraventions arise out of the same factual circumstances. An allegation of the contravention of two or more provisions, each imposing a separate duty, will not fall within s 233.
A matter which is crucial to the proper application of this provision is the interpretation of the word "provision". The clear intent of the section is to abrogate the prohibition against duplicity, insofar as it applies to more than one contravention of the same provision, notwithstanding that each contravention might be charged as a separate offence. The section can be easily applied, provided that it can be determined that the contraventions are of the same health and safety duty provision, rather than separate provisions.
Mr Taylor argues that each separate subparagraph of s 19 is a separate provision. He submits that each subparagraph of s 19(3) creates a separate duty and hence constitutes a separate health and safety provision for the purposes of s 233. Accordingly, s 233 does not save this complaint from invalidity for duplicity because it rolls up allegations of breach of two or more subparagraphs.
It is apparent that s 19(1) and (2) impose separate duties. The obligations are directed towards the protection of separate persons. Section 19(3) sets out specific obligations. The wording of the charge suggests that the applicant owed separate duties to Mr Dingjan. However, an examination of the duties asserted suggests that they engage separate provisions of s 19(3), in particular s 19(a), (c) and (f). It is crucial, therefore, to determine whether each subparagraph of s 19(3) is a discrete "provision", or simply part of a single "provision" constituted by s 19(1) and (3).
Clearly, the reasoning in Chugg provides some support for Mr Taylor's argument. However, Chugg is a single judge decision of the Supreme Court of Victoria. In S Kidman & Co v Lowndes (above), the Court of Appeal of the Northern Territory considered legislation identical to the current Tasmanian legislation. The court specifically considered the question of the role played by the multiple subparagraphs of s 19(3). It held that for the purposes of the offence provision, s 19(1) and (2) created separate health and safety duties. In respect of s 19(3), the court's view was as follows at [64]:
"[64] It should be noted in this context that the provisions of s 19(3) of the WHS Act are better read as indicating the reach of the instructions contained in ss 19(1) and (2). The provisions of s 19(3) are not properly read as imposing independent and separate obligations, the contravention of any one of which will constitute an offence regardless whether that contravention also breaches the requirement in ss 19(1) or (2) of the WHS Act."
I agree with the reasoning of the Court of Appeal. In any event, the legislation under consideration has its origin in uniform national legislation relating to work, health and safety. This is confirmed by the second reading speech relating to the Act and, in any event, apparent from s 3. As a single judge, I should not depart from an interpretation placed on uniform national legislation by an intermediate appellate court of another Australian jurisdiction, unless I am convinced that that interpretation is plainly wrong: Australian Securities Commission v Marlborough Goldmines Ltd (1993) 177 CLR 485. I am not convinced that this view is wrong, and, accordingly I follow the decision of the Court of Appeal in respect of this question.
The effect of that interpretation is that s 19(1) and (3), read together, constitute a single health and safety duty provision, for the purposes of s 233. It follows that the several contraventions of that provision referred to in the charge may be charged as a single offence, because they arise out of the same factual circumstances. This overcomes any concern in respect of duplicity, and the charge is not invalid for that reason.
Notice to review 2957/2016 – Production of investigation reports
The complaint was served on the defence on 12 November 2015. On 18 November 2015, the defence requested that the prosecution provide its brief of evidence. This brief was not received by the defence until 25 January 2016.
The brief provided to the defence contained a substantial number of documents, largely comprising summaries of evidence and documentary evidence arising from the respondent's investigation. However, the list of documents referred to two documents, an executive summary and an investigation report, copies of which were not provided with the brief.
On 8 June 2016, a summons was issued by a justice which required the respondent to appear before the Magistrates Court and produce the executive summary and investigation report. The authority for the summons was s 44 of the Justices Act. It is clear from the terms of that section, and common ground between the parties, that the respondent was not bound to produce the relevant documents if he was entitled to object to their production on the basis of client legal privilege.
Those objections were in fact maintained by the respondent before the magistrate. His Honour heard evidence and submissions, and reviewed both documents. He rejected the claim of privilege in relation to the executive report and a portion of the investigation report, but upheld the claim in respect of the balance of the investigation report. The motion seeks a review of his Honour's decision to uphold the claim of privilege in respect of any part of the report.
On the hearing of the review, the issue was confined to the question of whether the magistrate correctly upheld the claim of privilege. Although it had been the subject of submissions before the magistrate, there was no issue between the parties on the review that the summons had been validly issued, and it was accepted that, but for the claim of privilege, the documents should be produced. Further, it was not suggested that there was an overriding duty of disclosure in respect of these documents, which made the claim of privilege irrelevant. The substantive issue before me is limited to the question of whether the magistrate correctly upheld the claim of privilege. However, the respondent also submits that I do not have jurisdiction to determine this question, as the magistrate's ruling does not amount to an order within the meaning of s 107, and accordingly is not amenable to review under that provision.
Jurisdiction
In relation to this preliminary jurisdictional question, I indicated at the hearing of the review that I was satisfied that the magistrate's ruling on this question was an order which was subject to review pursuant to s 107. I indicated that I would give reasons for this determination at a later time. I now provide those reasons.
As already noted, s 107 permits a review only where there has been an "order of justices". Section 116 of the Justices Act provides as follows:
"116 Interpretation
In this Part, unless the contrary intention appears, order includes conviction, dismissal of a complaint, determination, and adjudication."
Counsel for the respondent, Mr Thompson, submits that the magistrate's ruling is at best an interlocutory determination, akin to a ruling as to the admissibility of evidence, and as such does not fall within this definition. He relies on the single judge decisions of Hesselman v Read [1973] Tas SR 93 and Phillips v Richardson A114/1997, [1997] TASSC 112. In both cases, it was held that a ruling as to the admissibility of evidence was not capable of review under this provision.
These and other decisions as to the proper interpretation of s 116, and hence the ambit of the jurisdiction of this Court to review an order under s 107, have been largely informed by the comments of Chambers J in Wilson v McCormack [1968] Tas SR 55 at 58, where his Honour said:
"I am of the opinion, that the definition of 'order' in s116 should be widely, rather than narrowly, construed, and I think it is wide enough to include orders of an interlocutory nature. I do not go so far as to say that it includes all interlocutory orders. The question must be decided on the circumstances of each particular case which arises."
These comments have been accepted and applied by a number of single judges in relation to this question, eg Mitchell v Marshall [2012] TASSC 4 at [15]. I also agree with those comments.
There are good reasons why a procedural determination, or a ruling related to the admissibility of evidence during the course of a hearing, is not properly defined as an order amenable to review. From a practical point of view, the capacity of a party to seek immediate and discrete review of such a ruling would be unacceptably disruptive to the proper administration of justice. Further, it would, in the normal course, be impossible for a court to determine whether the incorrect ruling has resulted in a substantial miscarriage of justice for the purposes of s 110(2)(ab) of the Justices Act, at that point of the proceedings.
However, the determination sought to be reviewed in this case is in a different category. Section 131A of the Evidence Act provides for the determination of an objection in respect of a requirement for disclosure, which would extend to the summons issued in this case. It is clearly contemplated that that determination will be made, in an appropriate case, prior to the commencement of the proceedings and will apply the relevant provisions with respect to privilege contained in the Evidence Act. The determination of the provision of such information, prior to the commencement of the actual hearing, has the capacity to affect and inform the course, conduct and nature of the hearing. In the case of the defence, it could conceivably have real implications with respect to the conduct of its case, including the decision by the defendant as to whether to give or adduce evidence. It is certainly possible to test at the conclusion of the hearing whether there has been a miscarriage of justice, but there are discernible benefits with respect to the due and efficient administration of justice, if such a decision is made, and if necessary reviewed, prior to the commencement of the hearing proper. I am satisfied, therefore, that the determination of the magistrate was an order within the meaning of s 107, and, accordingly, the Court has jurisdiction to conduct a review of that determination.
Client legal privilege
As I understand it, the basic legal principles applicable to a determination of the claim of privilege are also not in dispute. At common law, legal professional privilege will operate to protect a confidential communication or document from disclosure generally, not simply from admission into evidence during the course of a hearing. The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49, 213 CLR 543. Prior to the introduction of s 131A of the Evidence Act, a claim for privilege in any circumstances other than the adducing of evidence was determined in accordance with the common law, rather than the relevant provisions of the Evidence Act. Esso Australia Resources v FCT [1999] HCA 67, 201 CLR 49. However, by virtue of that provision, it is now clear that in respect of a disclosure requirement, which includes a summons to produce documents issued by a court, an objection to production must be determined in accordance with the relevant provisions of the Act. The definition of "court" under s 3 is such that it will include the Magistrates Court, and, accordingly, s 131A applies to the claim of privilege in this case.
The provisions relevant to client legal privilege are contained within Div 1 of Pt 10 of the Evidence Act. The basis of the objection in this case engaged ss 118 and 119. Those sections are as follows:
"118 Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of —
(a)a confidential communication made between the client and a lawyer; or
(b)a confidential communication made between 2 or more lawyers acting for the client; or
(c)the contents of a confidential document, whether delivered or not, prepared by the client, lawyer or another person —
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
119 Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of —
(a)a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b)the contents of a confidential document, whether delivered or not, that was prepared —
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding, including the proceeding before the court, or an anticipated or pending Australian or overseas proceeding, in which the client is, or may be, or was or might have been, a party."
In this case, the nature of the objection is that the part of the investigation report in respect of which the objection was upheld, which is entitled "Prosecution Report" is a confidential document prepared on behalf of the respondent for the dominant purpose of being provided with legal advice and/or professional legal services by the Director of Public Prosecutions (the DPP) in respect of the proposed (and now current) prosecution. There is no real issue concerning the proper characterisation of the respondent as the client and the DPP as the lawyer, for the purpose of these provisions. That much appears clear from the definitions contained in s 117. Although there was some question raised in the proceedings before the magistrate concerning the proper role of the DPP in respect of the commencement of the prosecution, it is clear that the respondent is the person charged under the legislation with the authority to do so: the Act, s 230(1). Although the DPP has power to commence the prosecution (s 230(4)), the complaint was actually made by the respondent. The functions of the DPP include giving advice and conducting proceedings as practitioner on behalf of nominated persons: Director of Public Prosecutions Act 1973, s 12.
The issue for determination before the magistrate, therefore, was whether the document was prepared for the dominant purpose of the DPP providing the respondent with legal advice and/or providing professional legal services in respect of the conduct of the prosecution. A further issue arose as a result of the earlier provision of the full report to the coroner, in respect of the coroner's investigation of the death of Mr Dingjan. It was contended by the applicant that even if client legal privilege arose in respect of the report, its disclosure to the coroner resulted in the loss of such privilege. The onus of establishing the facts which would support the claim of privilege fell on the respondent: Evidence Act, s 142 (1).
The proceedings before the magistrate
In the course of determining the objection, the magistrate took evidence from Terrance Hurley. The evidence was provided by affidavit and oral testimony. Mr Hurley's evidence was that he held the office of Inspector under the Act, and was responsible for investigating the incident which led to the death of Mr Dingjan. Mr Hurley conducted the investigation, which included taking statements from a number of relevant witnesses and then created both the executive summary and the investigation report. His evidence was that the investigation report is divided into two "phases". He explained the two phases as follows:
"The investigation report is basically it comes in –it's made up of two phases. The first phase is designed to inform the regulator of the details of the incident at hand. Once – the form – the – phase one of the investigation report also carries – well, in this instance carried my recommendations for either further action or to proceed to phase two of the report or no further action.
…
Well, phase two is the prosecution assessment phase whereby the regulator has chosen to initiate phase two of the report and require then the – a prosecution brief or a prosecution assessment to be completed. I would complete that prosecution assessment – …".
In cross-examination, Mr Hurley confirmed that he prepared the prosecution report after the Regulator (the respondent) had considered his recommendations as to prosecution, which were contained in the first part of the investigation report, and requested that the prosecution report be prepared. The prosecution report was intended to be referred to the DPP. In re-examination, Mr Hurley indicated that his understanding was that it was the "Department of Public Prosecutions" [sic] that made the decision as to whether a complaint should be filed.
The magistrate called for and examined both parts of the investigation report. He delivered his ruling after doing so. He concluded that the investigation report was, in fact, two discrete documents. His Honour applied the test of dominant purpose in respect of each separate part of the document. He accepted that the first part of the document was prepared for a number of purposes, which included providing a basis for prosecution, but that this was not the dominant purpose of preparation of the document. The document was also prepared for the purpose of informing the Regulator with respect to corrective actions and future education. It is necessarily implicit in his Honour's ruling that he found these latter purposes were not of lesser importance than the question of prosecution.
However, his Honour was satisfied that by the time the prosecution report was commissioned and prepared, there was "more than a mere possibility that legal proceedings would result". His Honour considered that this part of the document was prepared for the dominant purpose of seeking advice from the DPP and progression of the prosecution. He made a further finding that privilege had not been waived by provision of the report to the coroner.
I will now consider the specific grounds of review relating to this decision.
Ground a)
Ground a) provides as follows:
"a) mistaken as to the facts leading to his finding that the Investigation Report is comprised of 2 separate and distinct documents, being the Phase 1 Document (pages 1 to 27) and Phase 2 Document (the remainder of the document)"
Despite the formulation of this ground, the submissions reveal that the real complaint is that the applicant and its lawyers, who have only had access to the first part of the document, were not aware during the course of the hearing before the magistrate that there was in fact a second part to the document. Mr Taylor, who appeared as counsel for the applicant before the magistrate and on the hearing of the review, made the point that Mr Hurley referred only to two different "phases", and without seeing the document, it was impossible to understand that this was in fact a reference to documents, and that there was a further part to the subject document. The applicant's submission is that it was therefore caught by surprise, and counsel was not in a position to effectively cross-examine Mr Hurley as to his evidence concerning the purpose of the creation of the prosecution report.
Although the defence has not seen the full document, the magistrate had the benefit of inspecting it and I also have reviewed the entire document. This is consistent with the Court's authority under s 133 of the Evidence Act. This process was approved by the New South Wales Court of Appeal in Bailey v Department of Land and Water Conservation [2009] NSWCA 100. In that case, it was noted that the court inspecting the document is entitled to draw reasonable inferences from its contents, including with respect to whether the document came into existence with the dominant purpose of providing legal advice or legal services in respect of legal proceedings.
There is no doubt that Mr Hurley's evidence was somewhat obscure. He did not, in his affidavit, refer to the fact that the report contained two separate parts. In his oral testimony, he used the term "phase". Phase has a temporal context and it is understandable that defence counsel, without an opportunity to review the document, would misunderstand this reference. However, Mr Hurley was also clear that Phase 2 was only initiated after consideration of Phase 1. Upon reflection, it would have been reasonably discernible that this was a reference to the preparation of a separate part of the document for a different reason. Mr Hurley was not questioned about this terminology during cross-examination.
In any event, it is apparent on inspection that the document is divided into two distinct parts. The first part is entitled "Investigation Report", and the second part, "Prosecution Report". The documents are clearly prepared separately and discretely.
The privilege which is claimed under ss 118 and 119 attaches to "a confidential document". Section 3(10) provides that a reference in the Act to a document includes a reference to "any part of the document". Accordingly, privilege is capable of attaching to a part of the document, notwithstanding that it does not attach to the balance.
The approach taken by the magistrate was correct. He had differential evidence in relation to each part of the document and the two parts are discrete and clearly identifiable. Although the defence was at a disadvantage in terms of understanding the existence of the two parts, there has been no miscarriage of justice. It is not suggested by Mr Taylor that had he been aware that there was a further part to the document that he would have been entitled to inspect it. The approach adopted by the magistrate by considering the claim of privilege by reference to the separate parts of the document is unassailable.
There is no merit in this ground of review.
Ground b) of the notice to review
Ground b) provides as follows:
"b) mistaken as to the law in determining the question of the disclosure of the Phase 2 Document in the absence of specific evidence on the point (Powercor Australia Ltd v Perry [2011] VSCA 239"
The applicant argues that the claim of privilege in respect of the prosecution report is not adequately supported by the evidence. In particular, Mr Taylor relies on a decision of the Court of Appeal of Victoria in Powercor Australia Ltd v Perry [2011] VSCA 239. In that case, the judge at first instance had refused a claim of client legal privilege in respect of a report commissioned by the in-house counsel of a corporation. Evidence was adduced from the in-house lawyer as to her purpose in commissioning the report, but the judge noted, correctly in the view of the Court of Appeal, that it was the purpose of the report and not the motive of the individual who commissioned the report, upon which the claim of privilege must be based. The report suggested that there might be other purposes for which it was created, and in the absence of evidence from the CEO of the corporation, the judge was not prepared to conclude that legal advice was the dominant purpose of the creation of the report. Reference was made to Esso Australia Resources Ltd v Federal Commissioner of Taxation, where Gleeson CJ, Gaudron and Gummow JJ said:
"In many cases the reports would result from established corporate or bureaucratic procedures, and the individual who made the report would simply be following instructions. It may be necessary to understand the internal procedures, or the objectives of some person of higher authority, in order to identify the purpose or purposes for which reports were prepared."
Mr Taylor argues that this case is analogous to Powercor Australia Ltd v Perry (above). Although Mr Hurley gave evidence of his understanding of the reason why he was required to prepare the prosecution report, he was not the person who requested the report, nor was he the person who made the final decision in relation to prosecution. That person was the respondent, and he was not called to give evidence.
The decision of the Court of Appeal of New South Wales in Bailey v Department of Land and Water Conservation (above) is also a case in which there had been a failure to provide satisfactory evidence in support of a claim for privilege. The court referred to a decision of the Full Court of the Federal Court in Barnes v Commissioner of Taxation [2007] FCAFC 88 in which the need for suitable evidence was discussed and explained:
"18 The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 at 189, Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (1991) 29 FCR 203 at 211 (per Lockhart J); Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689 (per Stephen, Mason and Murphy JJ). Where possible the Court should be assisted by evidence of the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document. The fact that generalised evidence is not challenged in cross-examination does not mean that such evidence must be accepted, particularly when it is as manifestly inadequate as it is in this case. As in Kennedy v Wallace, mere general assertions of the purpose of creation of the documents are insufficient to discharge this onus. Even though in that case some evidence as to the purpose of particular records was adduced, Allsop J at 216 considered that the onus had not been discharged because the evidence did not permit a conclusion to be drawn as to the dominant purpose of the creation of any particular document or entry in a document. Simply to show that one purpose for creation of the document was to obtain legal advice or assistance is not good enough."
However, the Court of Appeal in Bailey noted that in Barnes the appellate court had inspected the documents and had concluded "that it could be reasonably inferred from their contents and on the face of at least some of the documents, that they came into existence with the dominant purpose of providing legal advice and thus attracted the privilege". The court followed Barnes "as authority for the proposition that a judge may inspect the documents in respect of which privilege is claimed and form his or her own view as to whether the legal requirements of privilege are satisfied". It noted that under s 133, the court is authorised to inspect the document for the purpose of determining the claim of privilege, and rejected a submission that the power under s 133 does not permit the court to draw inferences and determine the question in the absence of other evidence to support the claim of privilege.
As already noted, in this case, the magistrate took the step of inspecting the prosecution report, and I have also done so. It is apparent upon such inspection that the magistrate correctly inferred that the dominant purpose of the document was to obtain legal advice from the DPP as to whether there should be a prosecution, and to provide assistance with respect to those legal proceedings. The document is simply a more detailed discussion of the evidence in the context of the relevant legislation and regulations, and contains the opinion of the inspector as to the nature of any proposed prosecution. The document is entirely consistent with the evidence given by Mr Hurley, and his evidence is able to be better understood, having reviewed the document.
I cannot detect any error in his Honour's approach or conclusion. There is no merit in this ground of review.
Ground c) of the notice to review
Ground c) provides as follows:
"c) mistaken as to the law and the facts in finding that the Investigation Report (Phase 2 Document) was created for the dominant purpose of Mr Cocker, Mr Hurley and Work Safe Tasmania being provided with professional legal services by Mr Coates SC and his office (Waterford v Commonwealth (1987) 61 ALJR 350, Powercor Australia Ltd v Perry [2011] VSCA 239, Kennedy v Wallace (2004) 142 FCR 185, Aydin v Australian Iron and Steel Pty Ltd [1984] 3 NSWLR 684)"
This ground was expressed as a conclusion dependent on a favourable finding in respect of grounds a) and b). As I have found there was no merit in either of the said grounds, neither does this ground have merit.
Ground d) of the notice to review
Ground d) provides as follows:
"d) mistaken as to the law in finding that the disclosure of the Investigation Report by the Respondent to the Coroner, for convenience and not in answer to a summons, was not a waiver of privilege merely because the Coroner has the power to require production (s 122(3) of the Evidence Act 2001)."
Mr Hurley's evidence was that the full document, including the prosecution report, had been provided to the coroner in respect of the coroner's investigation into the death of Mr Dingjan. His understanding was that although the coroner had power to issue a summons requiring provision of documents, the document was provided routinely as a matter of convenience, in effect, to anticipate the issue of a summons. There was no suggestion that the document was accompanied by any claim of privilege in respect of the prosecution report, nor that there was any undertaking or agreement by the coroner to maintain confidentiality in respect of the document.
The applicant argues that the act of providing the report to the coroner without claim of privilege, amounts to a waiver of privilege and hence a loss of privilege.
This submission engages relevant provisions of s 122 of the Evidence Act. Those provisions are:
"(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120 .
(3) Without limiting subsection (2), a client or party is taken to have so acted if —
(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
…
(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because —
(a) the substance of the evidence has been disclosed —
…
(iii)under compulsion of law;
…
(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court."
The question which arises is whether the voluntary provision of the report to the coroner falls within the ambit of s 122(3)(a) and hence results in the loss of privilege under s 122(2).
The respondent argues that there are four reasons why the provision of the document to the coroner does not result in the loss of privilege. Two of the reasons can be disposed of briefly. They rely on the premise that the coroner is a constituent of the Crown. Accordingly, so the argument goes, the coroner and the respondent have a common interest and are, in fact, the same person. Hence, there has not been disclosure to another person.
There is no merit in this submission. The premise is clearly incorrect. The coroner exercises jurisdiction within the Coronial Division of the Magistrates Court. That Division is established by s 5 of the Coroners Act 1996. By s 11 of the Coroners Act, the coroner is required to take and subscribe the judicial oath. By s 3A(2) of the Magistrates Court Act 1987, the Magistrates Court is a court of record. Although the separation of powers, specifically between the courts and the executive, is not enshrined in the State Constitution, the separation of judicial power in the Australian Constitution has some limited application to courts invested with Federal jurisdiction: Kable v Director of Public Prosecutions New South Wales (1995) 189 CLR 51. The Magistrates Court is such a court. In any event, the separation between courts and executive is recognised at a practical level and by convention. Further, irrespective of the basis and extent of the separation, there is nothing in the Coroners Act which would suggest that a coroner is a constituent of the Crown, as is submitted by the respondent.
These submissions are rejected.
The respondent further argues that the documents were provided under threat of compulsion, in particular the exercise by the coroner of the power under s 53(1)(a) of the Coroners Act. The respondent submits that disclosure in the face of a threat of a compulsory process does not amount to a waiver of privilege, and relies upon Woollahara Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529. That case was decided under the common law and may be of limited assistance in respect of a determination under s 122. Section 122(3)(a) will apply where there has been a voluntary disclosure. However, it is relevant to consider whether a disclosure made under threat or anticipation of compulsion can properly be described as a voluntary disclosure.
By s 21 of the Coroners Act, a coroner has jurisdiction to investigate a reportable death. By s 24, a coroner who has jurisdiction to investigate a death must hold an inquest in certain circumstances. Those circumstances include where the deceased has died at or as a result of an accident or injury that occurred at his place of work. Accordingly, an inquest into the death of Mr Dingjan was mandatory.
The only power of a coroner to require production of the document in question arose in respect of that inquest, pursuant to s 53(1)(a). Under that provision, if the coroner reasonably believes it is necessary for the purposes of the inquest, the coroner may summon a person to produce any document. The coroner had no other power to compel production.
Of course, the document in this case was not provided pursuant to such a process. There is no suggestion that the coroner had threatened to issue a summons. The respondent may have anticipated that such a summons would follow as a matter of course, but it cannot be said that there was any certainty about that. In any event, the decision to provide the document in anticipation of the issue of such a summons suggests a desire on the part of the respondent to co-operate with the coroner's investigation by voluntarily providing the documents without the need for the issue of a summons. If this was the case, it would clearly amount to a voluntary disclosure. There is no evidence to the contrary.
A further consideration which arises is that even if a summons had been issued pursuant to s 53(1)(a) requiring production of the document, the respondent would have been entitled to claim client legal privilege in respect of it. In my view, this is the case despite the provisions of s 51, which provides that a coroner holding an inquest is not bound by the rules of evidence. It is now established that legal professional privilege is a rule of substantive law and not merely a rule of evidence. See The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission; Attorney-General (NT) v Maurice (1986) 161 CLR 475; AWB Ltd v Cole [2006] FCA 571. The rule may be abrogated or excluded by statute, but only when an intention to do so is stated expressly or by clear and unmistakable implication in the legislation: Baker v Campbell (1983) 153 CLR 52. This must also be the case notwithstanding the provisions of s 53(4) which provides that a person must not, without reasonable excuse, disobey a summons, order or direction. That provision will not of itself override professional privilege, see Daniels.
Accordingly, it cannot be contended that the respondent produced the document under compulsion of law. The document was provided unconditionally and without claim of privilege. I conclude that the respondent has made a knowing and voluntary disclosure of the substance of the evidence.
The final point relied upon by counsel for the respondent is that the disclosure constituted a confidential communication, because the coroner "was attended by an implied obligation not to disclose the document's contents". If it was a confidential communication, then the respondent will not be taken to have acted in a manner inconsistent with an objection based on client legal privilege: Evidence Act, s 122(5)(a)(i).
A "confidential communication" is defined by s 117 of the Evidence Act to mean:
"… a communication made in such circumstances that, when it was made —
(a) the person who made it; or
(b) the person to whom it was made —
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law."
There is nothing in the Coroners Act which would create such an obligation on the part of the coroner in respect of the document. On the contrary, if the document was disclosed in anticipation of or pursuant to the exercise of the coroner's powers under s 53(1), then it was disclosed in respect of the inevitable inquest. This is the case because the powers of the coroner under s 53 only apply if the coroner "reasonably believes it is necessary for the purposes of an inquest". By s 56, the coroner is to conduct the inquest in open court. Even if an assumption is made that the document was provided solely in respect of the coroner's investigation, and not the inquest, the coroner, although not required to make public the documents, is entitled to disclose the documents to any other person in the exercise of discretion: see Coroners Rules 2006, r 26. In these circumstances, it cannot be said that the coroner was under an express or implied obligation not to disclose the contents of the documents: see Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 97.
Of course, it has been recognised that such an obligation can arise because of an understanding or agreement. In Hastie Group Ltd v Moore [2016] NSWCA 305, 339 ALR 635 at [60], the New South Wales Court of Appeal accepted that the concept of obligation extended to "an unspoken obligation, and to an ethical, moral or social obligation". It is unclear that the coroner would be entitled to accept documents subject to an undertaking or agreement not to disclose them to others, having regard to the abovementioned statutory provisions. In any event, as already noted, there is no evidence in this case that the documents were provided pursuant to any such undertaking or agreement.
I am satisfied therefore that the coroner was not under an express or implied obligation not to disclose the contents of the document. Accordingly, the disclosure of the document was not in the course of making a confidential communication.
It follows that by providing the document to the coroner, the respondent has made a knowing and voluntary disclosure of the substance of the evidence to another person. Accordingly, having regard to s 122(2), the client legal privilege to which the respondent was otherwise entitled has been lost. The magistrate erred by determining that this was not the case. This ground of review must succeed.
Conclusion
For the reasons stated, this motion will succeed. The magistrate ought to have overruled the objection based on client legal privilege and required the production of the entire document pursuant to the summons. I am inclined to set aside the magistrate's ruling upholding the objection and remit the matter to the magistrate to deal with the summons in accordance with law. However, before doing so, I will give counsel the opportunity to make submissions on the question of the appropriate disposition of the case.
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