Simon Parris v Trustees of Edmund Rice Education Australia T/A St Kevin's College
[2020] FWC 5525
•21 OCTOBER 2020
| [2020] FWC 5525 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Simon Parris
v
Trustees of Edmund Rice Education Australia T/A St Kevin’s College
(U2020/2749)
COMMISSIONER LEE | MELBOURNE, 21 OCTOBER 2020 |
Application for an unfair dismissal remedy - orders for production of documents sought by applicant - parts of application objected to by respondent - disputed relevance - claim of legal professional privilege - waiver of privilege - objections upheld in part - order varied.
[1] This matter involves an application made by Mr Parris (the Applicant) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he has been unfairly dismissed from his employment with Trustees of Edmund Rice Education Australia T/A St Kevin’s College (the Respondent).
[2] The Applicant was dismissed by the Respondent for misconduct. This misconduct relates to allegations that the Applicant harmed a student (Student A). The harm is said to have arisen from the Applicant sitting next to Student A on a couch, putting his arm around him, rubbing his upper thigh, hugging him and calling him “sweetie”. 1
[3] While this was the reason relied on for the dismissal, the Respondent also relies on other alleged misconduct discovered after the dismissal for the purposes of consideration of valid reason under s.387(a) of the FW Act. This subsequently discovered alleged misconduct includes:
• Possession of pornography in the workplace (on a work supplied device/laptop) in breach of the relevant policy (the IT Guidelines). 2
• Hugging boys after warning issues in February 2019. 3
• Use of Torrent Technology to download and disseminate material in breach of copyright. 4
• Engaging in ‘familiar and unacceptable’ email communications with student inconsistent with the terms of the employer’s code of conduct. 5
[4] Against the background of these allegations, and the associated case put again him, the Applicant has sought an order for production of various materials against the Respondent. The Schedule to the order is in the following terms:
SCHEDULE
1. Full un redacted copy of Janet Canny (employee of the School and then Deputy Headmaster) appointment diary and notebook (notebooks) for 14 to 28 June 2019 (inclusive).
2. Pages of notebooks for 15 to 24 July 2019 (inclusive).
3. Full page of notebooks for 26 July 2019.
4. Full page of notebooks for 23 August 2019 and any other notes taken by Ms Canny regarding the meeting referred to in her notebooks that day between her and Student A and her and Student A’s father.
5. All pages of notebooks for 10 to 15 February 2020 (inclusive).
6. All correspondence passing between the Respondent and Student A’s parents in relation to the “14 June Incident”.
7. All documents that record Student’s A account or description of the “14 June Incident”.
8. Any notes created, placed and being held on ‘Synergetic’ (or stored anywhere else) with the author being Colin Macfarlane (employee of the School) and related to Student A and Simon Parris in July 2019 and specifically on 18 July 2019 and particularly related to the restorative meeting held on 24 July 2019.
9. All correspondence passing between the School and the Victorian Institute of Teaching (VIT) in 2019 or 2020 referring to Simon Parris.
10. All correspondence passing between the School and Victoria Police in 2019 or 2020 referring to Simon Parris.
11. All documents that record or refer to the instructions given or provided by Colin Biggers & Paisley and/or the Respondent to FSR Consulting and any of its directors, employees, agents and servants in relation to the Forensic Analysis Report dated 31 July 2020 (Report).
12. All documents provided by Colin Biggers & Paisley and/or the Respondent to FSR Consulting and any of its directors, employees, agents and servants for the purpose of the preparation and production of the Report.
[5] An order for production was also sought in generally the same terms as items 11 and 12 against FSR Consulting/David Thompson.
[6] I issued the orders to produce on 18 September 2020. The order allowed for, in the usual manner, the persons served to apply to have the order set aside or varied. On the date nominated for the documents to be produced, the Respondent produced the documents ordered but only in part. In summary, a number of documents were produced without any redactions, and a number of documents were provided with partial or total redactions. This was done on the basis that the Respondent objects to the production of a number of documents on the grounds of relevance. In respect of other documents, the objection to production is made based on a claim of legal professional privilege attaching to the documents in question.
[7] All of the documents have been provided to the Commission in unredacted form. Mr Thompson produced a document in response to the order and did not object to or seek a variation of the order. However, it became apparent that the document provided by Mr Thompson was also caught in the objections made by the Respondent and has therefore not been made available to the Applicant at the present time.
[8] The matter was listed for hearing on 13 October 2020 in order to deal with the objections.
Grounds of Relevance
[9] I will deal firstly with the documents which the Respondent objects to on the grounds of relevance. The relevance objection is taken in respect to the redacted sections of the documents in categories 1-5.
The relevant principles
[10] As to the relevant principles to apply, the Applicant took me to decision of the Commission in ANF v Victorian Hospitals’ Industrial Association, 6 where Commissioner Jones set out the relevant principles in paragraphs [7] – [13] as follows:
“[7] The power to require the provision of copies of documents, records or other information has, under earlier legislative schemes, been expressed as a power to summons and compel the production of documents.
[8] Section 111(1)(s) of the Workplace Relations Act 1996, as it stood prior to 26 March 2006. provided the Commission with the power to:
“(s) summon before it the parties to the industrial dispute, the witnesses, and any other persons whose presence the Commission considers would help in the hearing or determination of the industrial dispute, and compel the production before it of documents and other things for the purpose of reference to such entries or matters only as relate to the industrial dispute;”
[9] I am satisfied that the jurisprudence in relation to the power of predecessors of Fair Work Australia to issue summons is applicable to the power under s.590(2)(c) of the Act.
[10] The power to require the provision of documents, records or other things is a broad discretionary power to be exercised in accordance with the principles applied by the Courts.
[11] In The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation,1 Justice Mason, as he then was, discussed the use of the discretion to issue a summons and said:
“When application is made for the issue of a summons the Commission has discretion to grant or refuse it. Generally speaking, the Commission will exercise its discretion in favour of the applicant unless it appears that it would be vexatious or frivolous or otherwise an abuse of process to issue the summons.”
[12] The principles applied by the Courts in the exercise of the discretionary power to issue a summons were identified by Munro J in Re Clerks’ (Alcoa of Australia - Mining and Refining) Consolidated Award 1985:
“In its exercise of a broad discretion and judgement over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce document. Any such subpoena must specify with reasonable particularity documents which are required to be produced. It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they relate. In the case of a corporation, it is usually appropriate, where the custodianship of documents is not clear, to direct the subpoena to the `Proper Officer’. It is not legitimate to use a subpoena for what, in effect, would be discovery of documents against a person not liable to make discovery, or as a substitute for discovery which should be applied for at the proper time. The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute. In the first instance the documents are produced to the tribunal upon whom it falls to examine the documents, assess their relevance and determine what access by the parties to the documents may be appropriate; (section 187 of the Act appears to be the statutory counterpart of this principle of practice). A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a `fishing expedition’, in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carryout an exercise of judgement upon the particular facts in each case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases.”
[13] An exposition of the principles with particular focus on issues of confidentiality is contained in the decision of His Honour Vice President Lawler in Association of Professional Engineers, Scientists and Managers and Airly Coal Pty. In McIlwain v Ramsey Food Packaging Pty Ltd and others, Justice Greenwood summarised the principles which govern the courts in relation to discovery and subpoena to produce documents. I have had regard to this summary, so far as it concerns subpoena to produce documents in considering this Application. Removing those aspects of the summary dealing with discovery, the relevant principles identified by Greenwood J relevant to these proceedings are:
a) A writ of subpoena duces tecum is competent against both a party and a stranger to the proceeding: The Adelaide Steamship Company v Spalvins (unreported, O’Loughlin J, 1 August 1997).
d) The documents for production must be identified with reasonable particularity. (The Commissioner for Railways v Small (1938) SR (NSW) 564, 574-575 per Jordan CJ). The category of documents must not be so wide as to be oppressive.
e) The documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant’s existing case. It cannot be used for purposes of ‘fishing’ or for the purpose of determining a preliminary question as to whether the party has a supportable case (Hennessy v Wright(1888) 21 QBD 509), or to investigate the character of the opposing party’s evidence (Griebart v Morris[1920] 1 KB 659, 666).
f) The test for relevance does not require that a party demonstrate direct relevance to the contest between the parties. Rather, the documents must have some potential relevance to the pleadings as they stand. In Australian Gas Light Company v Australian Competition & Consumer Commission [2003] FCA 1101, French J summarised the matters which are relevant to the grant of leave:
“It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resiting its issue, that may also be a practical factor to be weighed.”
g) The same notion was expressed in Small (575) and Dorajay Pty Limited v Aristocratic Leisure Limited [2005] FCA 588, [34] in requiring the existence of a legitimate forensic purpose for the production of documents.
h) In Trade Practices Commission v Arnotts Limited(No. 2)(1989) 21 FCR 306, Beaumont J said that the question of whether a subpoena should go can conveniently be addressed by reference to two questions. First, does the material sought by the subpoena have an apparent relevance in a descriptive or adjectival sense rather than a substantive sense? Does the subpoena have a legitimate forensic purpose to this extent from the perspective of the party issuing the subpoena? Secondly, does the subpoena cast a serious and unfair burden or prejudice upon the respondent to the subpoena?
i) Spender J in Cosco Holdings Pty Ltd v Commissioner for Taxation[1997] FCA 1504 suggested that adjectival relevance looks toward the possibility whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings.
j) When a party contends material that either is or may be or may have been in the possession, custody or power of a respondent relates to any question or issue raised on the pleadings, they will be taken to mean that the material is relevant in the sense contemplated by section 55 of the Evidence Act 1995 (Cth) namely, evidence that if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. This is the substantive relevance of the material. The test for the issue of the subpoena is whether the material appears to have relevance in the sense of throwing light on at least some of the issues in the principal proceeding.
k) The relevance of the documents must not be disproportional to any benefit that their production might have for the respondent: Dorajay [34].
l) A subpoena ought not issue in circumstances where it would unduly disrupt the conduct of the trial by requiring the Court to read documents which could have been obtained at an earlier stage in the proceedings: Diddams v Commonwealth Bank of Australia[1998] FCA 497.
m) The issue of the subpoena must not, in all the circumstances be oppressive in terms of its impact on the recipient. That is, the issue of the subpoena must not be ‘seriously unfairly burdensome, prejudicial or damaging’ and ‘productive of serious and unjustified trouble and harassment’. (Hamilton v. Oades [1989] HCA 21; (1989) 166 CLR 486, 502, Oceanic SunLine Special Shipping Co. Inc. v. Fay [1988] HCA 32; (1988) 165 CLR 197, Seven Network Limited v News Limited (No 5) [2005] FCA 510; [2005] 216 ALR 147, [12].
n) The issue of a subpoena against a stranger to the proceeding is more likely to succeed later in the proceeding. Though there is no formal barrier to a subpoena to produce being returnable prior to the hearing, the document may well be premature where no trial date has been fixed. Where the proceeding is of considerable evidentiary complexity there is stronger force to serving the subpoena at an earlier stage: Hughes v Western Australian Cricket Association (1986) 66 ALR 541.
o) In Dorajay Pty Limited v. Aristocrat Leisure Limited[2005] FCA 588 at paragraph [17], Stone J noted the observations of Waddell J in Spencer Motors Pty Ltd v. LNC Industries Ltd[1982] 2 NSWLR 921 at 927, summarising the views of Moffitt P in National Employers’ Mutual General Association Ltd v. Waind & Hill [1978] 1 NSWLR 372 to the effect that whether subpoenas are oppressive or an abusive process depends on whether “it is reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case”. Her Honour said at paragraph [18]:
“These authorities show that the criteria by which one determines whether a subpoena should be set aside, in whole or in part, may be expressed in different ways but ultimately, they all come down to whether such action is required to prevent an abuse of the processes of the court to prevent injustice. As Deane and Gaudron JJ recognised [Hamilton v Oades [1989] HCA 21; (1989) 85 ALR 1 at p.11] in the comments quoted by Beaumont J [in Trade Practices Commission v. Arnotts Limited], various terms may be used in focusing these concerns on the circumstances of a particular case. In this case, whether the documents are relevant (in the sense used by Beaumont J) will determine the issue provided that the requirements of the subpoena are not otherwise oppressive.” ”
(footnotes omitted)
[11] The Respondent does not contest that these are the relevant principles. 7
Ms Canny’s diaries and notebooks (the Notebooks) (Category 1 – 5 of the Order)
[12] Having regard to the orders issued, there are 12 categories of documents. The first 5 of those categories relate to the diaries and notebooks of Ms Canny, an employee of the school and then Deputy Headmaster, for particular periods (the Notebooks). All of the diary and notebook pages have been provided though they are redacted either partially or completely. Complete unredacted copies of all Notebooks have been provided to the Commission.
[13] It is not in dispute that entries in the Notebooks that have any connection with the Applicant are relevant to the proceedings and should be produced. The controversy here is related to the process involved in determining relevance. The process preferred by the Applicant is that their counsel and senior instructor are able to view the unredacted materials to ‘see for themselves’ if anything redacted is relevant. Counsel for the Applicant submitted that “we don’t know what we don’t know”, 8 that they are being asked to accept everything provided is the only relevant material, but do not know that because someone else is making the assessment.9 The Applicant also put that ordinarily, “once the unredacted documents are brought to the court, if there’s any dispute thereafter about redaction, that occurs in the context of a discussion between the parties.”10 The Applicant cites Gall v Domino’s Pizza Enterprises Limited (Dominos)11 and the approach taken in that matter in support of this proposed course, as well as the desirability of saving the Commission from having to undertake this exercise.12 The Respondent strenuously opposes this course of action and prefers that the Commission make the assessment and satisfy itself as to relevance.13
[14] I have considered these submissions. This is a matter clearly requiring the balancing of the invasion of private rights, with the interests of justice and ensuring that all relevant material is made available to the Applicant to enable them to advance their case.
[15] The Notebooks contain often very personal information about students entirely unconnected to these proceedings. The issue of privacy is significant. This matter differs from the Dominos case, firstly because while this matter involves a reasonable number of documents, it is not voluminous. Further, before the hearing, I had already largely undertaken the exercise of comparing the Notebooks with the unredacted documents, and with one exception, there is nothing whatsoever of relevance in the redacted material.
[16] Balancing the interests of justice and the invasion of private rights in the instances of this particular matter is best achieved by the Commission as presently constituted making the assessment as to relevance, and directing the Respondent to make available any further material I have identified as capable of being relevant to the matter.
[17] Having undertaken the exercise, I have identified that the redacted information at the end of line 5, 6 and 7 of the diary entry for 18 June 2019 (a total of 4 words) is relevant and is to be provided in unredacted form.
[18] The schedule to the order will be varied in Category 1 to remove the reference to “full unredacted”. The schedule to the order will be varied in categories 1 to 5 to state that the Respondent produce “redacted and relevant excerpts” of the relevant appointment diary and notebooks.
All correspondence passing between the school and VIT in 2019 or 2020 referring to the Applicant (Category 9 of the Order)
[19] This aspect of the order is objected to by the Respondent on the basis of relevance. The Applicant in the Form F52 said the following:
“The School has made complaints to VIT regarding the Applicant. Given what the School says as to allegations against the Applicant and what it knew and when, any reports sent to VIT complaining about Simon Parris and what they say would be very helpful to the Commission in determining the facts and also on credibility.”
[20] This is a rather vague submission as to relevance. At the hearing, the position of the Applicant as to why this material is relevant was better articulated.
[21] There is a real contest as to what happened during the 14 June incident. On 14 June 2019, it seems to be common ground factually that the Applicant sat next to Student A on a couch at the school and put his arm around him for a time period. The length of time that he did so, and other aspects of this event, are in dispute. There is, in particular, a hotly contested factual dispute as to whether the Applicant also at the time he was sitting with Student A on 14 June touched Student A’s leg, and if he did, where and how he touched it.
[22] Counsel for the Applicant referred to the evidence of Mr Crowley, who said that “Mr Russell did not mention any allegations that Mr Parris had touched Student A’s knee to upper thigh, face, comments about his body or about any concerns regarding Mr Parris prior to the 14 June Incident”. 14
[23] Counsel for the Applicant refers to Student A’s evidence in these proceedings, that on 14 June 2019:
“I met with Mr Macfarlane and Anthony Coyne, Dean of Senior School (Mr Coyne). I explained everything that had happened the previous Friday with Mr Parris. I cannot say with certainty but I believe I said something about Mr Parris’s hand stroking my leg.” 15 Further, that he told the school counsellor “about the incident with Mr Parris on 14 June 2019, including that Mr Parris touched my leg.”16
[24] Further, the Applicant contends that the letter from Student A’s parents referred to in Mr Crowley’s evidence raises concerns “that the report made to CCYP and VIT are incomplete parts of the complete story”. 17
[25] Against this background, counsel for the Applicant states that the VIT reports were relevant as to whether they included reference to the leg touching incident. 18 Furthermore, that it is “relevant to my client’s argument in the proceeding because they had knowledge of this event, unlike what Mr Crowley is now saying here”.19
[26] Counsel for the Respondent concedes that the alleged leg touching is a “major forensic issue”, 20 however points out that Mr Crowley took on the job of Acting Principal on 20 February 2020, and much of his statement is about what he learned when he took over that position. The Respondent submits that the real basis of the reason the documents are sought is in order to impugn the credit of Student A.
[27] The key question, as always, is relevance. Namely, whether the documents are of a nature that they are capable of being relevant to an issue in dispute. In ANF v Victorian Hospitals’ Industrial Association, the relevant principles as cited by Justice Munro were laid out as follows:
“j) When a party contends material that either is or may be or may have been in the possession, custody or power of a respondent relates to any question or issue raised on the pleadings, they will be taken to mean that the material is relevant in the sense contemplated by section 55 of the Evidence Act 1995 (Cth) namely, evidence that if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. This is the substantive relevance of the material. The test for the issue of the subpoena is whether the material appears to have relevance in the sense of throwing light on at least some of the issues in the principal proceeding.” 21
[28] I accept that Mr Crowley only commenced in the role of Acting Principal on 20 February 2020, and that this is relevant. Further, the Applicant was dismissed the next day, on 21 February 2020. The Respondent asserts, and I agree, that that no explanation is given as to how the documents that post-date the Applicant’s employment period are relevant. I am not satisfied, having had regard to the submissions on why the documents are relevant put by counsel for the Applicant at hearing, that the documents that post-date the Applicant’s dismissal are capable of being relevant to the issue in dispute. The objections of the Respondent to these documents is upheld and the order will be varied accordingly.
[29] However, I accept that the VIT correspondence prior to the termination of the Applicant’s employment are for the reasons set out by counsel for the Applicant, capable of being relevant to a key issue in dispute, the leg touching incident. The relevant documents include the following:
• 17 July 2019; Subject: Receipt of a reportable allegation - RCS-2019/821 re registered teacher 180642 Mr Simon PARRIS (VIT Ref: 4956); From: Vicky Kovanidis; To: Janet Canny
• 30 – 31 October 2019; Subject: Victorian Institute of Teaching Ref: 4956; Emails between Brenda Barrowclough and Janet Canny
• 29 November 2019; Subject: Application for Renewal of Registration; Letter from Damien Cricchiola, Victorian Institute of Teaching, to Simon Parris
• 17 December 2019; Subject: Read: Simon Parris Emails between Pauline Ryan, Janet Canny and Brenda Barrowclough
• 17 December 2019; Subject: Simon John Parris VIT Reg No 180642; Letter from Stephen Russell and Janet Canny to the Chief Executive Officer of Victorian Institute of Teaching
[30] Accordingly, the objection is not upheld to the correspondence to VIT from 17 July 2019 to 17 December 2019. I note that there is a password printed on one of these documents that the Respondent should redact for obvious reasons of privacy and information security. Otherwise those documents are to be made available to the Applicants representatives. The order will be varied accordingly.
Correspondence passing between the Respondent and Victoria Police in 2019 and 2020 (Category 10)
[31] The Applicant made essentially the same submissions in regard to this category of documents as the submission pertaining to the VIT documents. 22 The Respondent makes similar objections.
[32] Consistent with my reasoning in regard to the VIT correspondence, I agree that the correspondence post termination with Victoria Police is not relevant having regard to the submissions set out by counsel for the Applicant. Accordingly, the correspondence with Victoria Police prior to the termination date remains parts of the order. This includes the following documents:
• 11 February 2020; Subject: Det Sgt Ian Bucher, SOCIT Bayside’ From: Carmen Busuttil; To: Janet Canny; Email and notes from telephone conversation
• 12 – 13 February 2020; Subject: St Kevin’s College - re Student A and Mr Simon Parris; Emails between Carmen Busuttil, Ian Bucher and Janet Canny
[33] As to the correspondence with Victoria Police that post-dates the dismissal, the objection of the Respondent is upheld on the same basis as that for the VIT correspondence set out above and the order will be varied accordingly.
Objections on Grounds of Legal Professional Privilege
Documents that record or refer to the instructions given or provided by Colin Biggers & Paisley and/or the Respondent to FSR Consulting (Category 11 and 12)
[34] The objection to this category of documents is based on a claim of legal professional privilege. FSR Consulting was engaged by the Respondent’s lawyer, Colin Biggers & Paisley to conduct a forensic analysis of the Applicant’s school supplied laptop after his dismissal. The forensic IT consultant has filed an expert report (the Report).
The relevant principles
[35] Both parties referred to the relevant authorities, including Australian Securities & Investments Commission (ASIC) v Southcorp Ltd, 23 Shea v Energy Australia Services Pty Ltd (No 5) (Shea),24 and the relevant sections of the FW Act referring to the Commission’s power and statutory considerations. I was also taken to a decision of Commissioner Johns in the penalty rates case.25 That decision sets out a useful summary of the legal position:
“[16] The Commission as presently constituted has had regard to the submissions of the parties made in this matter. It was common ground between the parties that the relevant legal authorities include Australian Securities and Investments Commission v Southcorp (Southcorp), New Cap Reinsurance Corporation Limited (in Liq) & Or v Reinsurance Reinsurance Ltd (New Cap), Shea v TrueEnergy Services Pty Ltd (No.5) (Shea),3 Linter Group Ltd v Price Waterhouse (Linter). The Commission as presently constituted has had regard to those authorities.
[17] The task then is to determine whether it can be said that the Disputed Documents influenced the content of the Reports in such a way that it would be unfair for the Employer Groups to rely upon the Reports without disclosing the Disputed Documents.
…
[19] Put another way, the question to be answered is whether the Disputed Documents influenced the content of the Reports in a substantial sense. If the Disputed Documents only influenced the content of the reports in the sense of form or other peripheral matters, legal professional privilege will not have been waived.” 26
(footnotes omitted)
[36] As counsel for the Respondent put it during the hearing:
“my submission on the documents that are available to you, Commissioner, is that no communication influenced the expert in the final report – and if you are satisfied of that fact, and that’s why resolving this legal professional privilege argument/disagreement is about the facts - if you are satisfied that no communication influenced the expert report, then there is no waiver of the privilege and the communications/the documents between the expert and my client are not susceptible to an order for production being made.” 27
[37] The Applicant accepts that there is legal professional privilege attaching to the documents in categories 11 and 12, however asserts that this is “a pretty clear case of waiver and the Commission ought, in those circumstances, uphold and maintain the order and not vary it.” 28
[38] The Respondent submits that there is no basis for finding on the facts that privilege has been waived in this matter.
Consideration of the legal professional privilege objection
[39] The author of the Report, Mr Thompson, discloses in the first paragraph that:
“This report has been prepared in response to instructions received from Colin Biggers & Paisley (CBP) to prepare a forensic analysis report regarding the following issues in this matter:
• The deleted / opened pornographic videos located on the laptop including screenshots;
• Details of the Grommr site;
• Details relating to use of Torrents and distribution of films / TV to students;
• Emails between Parris and students that are overly familiar; intimate; cross or blur professional boundaries or simply stand out as containing language or comments that are considered odd from an adult teacher to a teenage boy.”
[40] Counsel for the Applicant also took me to page 5, paragraph 3 of the Report as evidencing how the Report has been prepared in response to instructions that are not provided. 29
[41] The Report prepared by Mr Thompson also includes in section 1.2 the information that the author has relied on to prepare the report:
• A Disk Drive image obtained from a Toshiba Protégé laptop computer, serial no. YG099703H, provided to me by St Kevin’s College IT staff, which I was advised was the laptop currently issued to a teacher, Simon Parris.
• Email box data for the user account “[email protected]”, provided to me by St Kevin’s College IT staff, which I was advised was email data from the email account for a teacher, Simon Parris.
• Data collected from the following Internet web sites:
• Clips4sale web site – • Grommr web site – • Torrents Time web Site – torrents-time.com • Ace Stream web site – • uTorrent web site – The methodology is set out at section 2 of the Report. Point 2.1, “Data collection”, included “Disk Drive Imaging”; “User Email Box Copy” and “Internet Site Content”. Point 2.2, “Forensic Data Analysis” included “Searching and Analysis” of the disk drive image and email data collected. There was also a “Internet Site Content Search & Review”. [43] Section 3 of the Report sets out the “Forensic Analysis Findings” and what it contains forms the balance of the Report. It includes the findings made as to files that were deleted from the laptop that appear to be pornographic related; findings related to the internet search engine cache record; the identification of a social media account; analysis of a social media site Grommr; identification of Torrent files and activity; analysis of email data between the Applicant and students which the author of the Report identifies as ‘“overly familiar; intimate; cross or blur professional boundaries or containing language or comments that appear odd from an adult teacher to a teenage boy”.’ 30 [44] Essentially, the Report is a record of what Mr Thompson attests he found from searching the data set out above regarding the matters set out in the instructions which are set out in the first paragraph of the Report. Against this background, the question is whether anything in the documents in categories 11 and 12 could be said to have influenced the Report in a substantial sense. [45] It is accepted that the documents in categories 11 and 12 are subject to legal professional privilege. As mentioned earlier, I have the benefit of possessing the unredacted copies of all of the category 11 and 12 documents. Having reviewed those documents, I have determined that, with one exception, those documents could not be said to have influenced the report and its contents. However, the document dated 24 June 2020 and identified as: “Subject: Confidential & Privileged – Simon Parris FWC Forensic Report [CBPACTIVE.FID1669120]; From: Paul O’Halloran; To: David Thompson” could be said to have influenced the Report in a substantial sense leading to a waiver of the privilege in respect of that document. In summary, the objection to production of all of the categories of the documents in categories 11 and 12 is upheld with the exception of the one document identified. The order to produce will be varied accordingly. [46] Finally, there was a separate order to produce issued against FSR Consulting which contained a category 1 and 2 in essentially the same terms as that of category 11 and 12 that was issued against the Respondent. The Respondent’s representative also seeks that those documents not be released on the basis that they are subject to legal professional privilege and that has not been waived. Consistent with the approach taken above I am satisfied that the same document dated 24 June 2020 and identified as: “Subject: Confidential & Privileged – Simon Parris FWC Forensic Report [CBPACTIVE.FID1669120]; From: Paul O’Halloran; To: David Thompson” could be said to have influenced the Report in a substantial sense and will be covered by the order as varied. I note that this document was the only document provided by Mr Thompson in response to category 1 of the order against Mr Thompson/FSR Consulting. The return of the order indicated that there were no documents relevant to category 2 of the Schedule. [47] The order to produce will be varied consistent with the above determination. A draft order giving effect to the determination is attached, parties are to advise of any views as to whether the draft order accurately reflects this decision by no later than close of business, Thursday, 22 October 2020. COMMISSIONER Appearances: Mr J Darams as counsel for the Applicant Mr N Harrington as counsel for the Respondent Hearing details: 2020 Printed by authority of the Commonwealth Government Printer <PR723614> 1 Respondent’s outline of submissions dated 31 July 2020 at paragraph 21(b) 2 Ibid at paragraphs 34 - 43 3 Ibid at paragraphs 44 - 46 4 Ibid at paragraphs 47 - 52 5 Ibid at paragraphs 53 - 57 6 [2011] FWA 8756 7 Transcript at PN38 8 Transcript at PN184 9 Transcript at PN184 10 Transcript at PN185 11 [2019] FCA 1799 12 Transcript at PN172 13 Transcript at PN258 14 Witness Statement of John Crowley dated 31 July 2020 at paragraph 39 15 Witness Statement of Student A dated 31 July 2020 at paragraph 32 16 Ibid at paragraph 43 17 Transcript at PN235 18 Transcript at PN229 - 231 19 Transcript at PN242 20 Transcript at PN260 21 ANF v Victorian Hospitals’ Industrial Association, citing Justice Munro in Re Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 (Print H2892) at p 2, citing Justice Greenwood in McIlwain v Ramsey Food Packaging Pty Ltd and others (2005) 221 ALR 785 22 Transcript at PN243 23 (2003) 46 ACSR 438 24 [2013] FCA 937 25 [2015] FWC 6385 26 Ibid paragraph [16] – [17], [19] 27 Transcript at PN248 28 Transcript at PN168 29 Transcript at PN162 30 Forensic Analysis Report – FSR Consulting, dated 31 July 2020 at page 21Conclusion
Melbourne (by telephone)
13 October
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