Vasey v Gladstone Area Group Apprentices Limited - [2023] QIRC 165

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:		Vasey v Gladstone Area Group Apprentices Limited [2023] QIRC 165
PARTIES:		Vasey, Glenda (Applicant) v Gladstone Area Group Apprentices Ltd (Respondent)
CASE NOS:		AD/2022/20
PROCEEDING:		Application in existing proceedings
DELIVERED ON:		5 June 2023
HEARING DATE:		17 April 2023
MEMBER: HEARD AT:		Pidgeon IC Brisbane
ORDERS:		1. With regard to the Notice of Non-Party Disclosure issued by the Applicant on 13 February 2023, Workplace Law Group is to produce to the Applicant, in accordance with the Industrial Relations (Tribunals) Rules 2011 (Qld) rule 64H(1): a. Documents in Category 2 (noting that any legal advice unrelated to the purpose of managing Ms Vasey’s alleged performance and conduct issues should be redacted); and b. Documents in Category 3, relating only to material relied upon in Mr John Hynes’ statement prepared by Ms Sarah Lock of Workplace Law Group. 2. Workplace Law Group is to produce the documents referred to in Order 1 within 21 days of this decision being released, unless an appeal of these orders is filed in the Industrial Court of Queensland before that date; 3. Workplace Law Group is not required to produce documents in Category 1, 4 or 5. 4. Within one month after producing the documents referred to in Order 1 above, Workplace Law Group is to give the Applicant written notice of its reasonable expenses of producing those documents.
CATCHWORDS:		PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION OF DOCUMENTS – GROUNDS FOR RESISTING PRODUCTION – CLIENT LEGAL PRIVILEGE – application in existing proceedings seeking order for production of documents particularised in notice of non-party disclosure – consideration of the Industrial Relations (Tribunals) Rules 2011 (Qld) – where the respondent resists disclosure of documents on the grounds of legal professional privilege – where the applicant contends the documents are disclosable – whether the claim of legal professional privilege should be upheld
LEGISLATION:		Industrial Relations (Tribunals) Rules 2011 (Qld) rr 64E, 64G, 64H, 64I
CASES:	Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 153 ALR 393 Australian Mud Co Pty Ltd v Coretell Pty Ltd (No 2) [2014] FCA 723 Bartolo v Doutta Galla Aged Services [2014] FCCA 1517 Bowker v DP World Melbourne Ltd [2015] FWC 7887 Brown v BlueScope Steel Ltd [2005] AIRC 955 Carnell v Mann (1998) 159 ALR 647 Commissioner of Taxation v PricewaterhouseCoopers [2002] FCA 278 CUB Australia Holding Pty Ltd v Commissioner of Taxation [2021] FCA 43 DBCT Management Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd and Geosea Australia Pty Ltd Joint Venture [2021] FCA 512 Deputy Commissioner of Taxation v Miller [2021] WADC 29 Dixon v Watpac Ltd [2022] FedCFamC2G 778 Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 3) [2018] FCA 1540 Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QIRC 165
Decision Date: 5 June 2023

CaseChat Overview and Summary

Vasey v Gladstone Area Group Apprentices Limited was a case before the Industrial Court of Queensland, involving a dispute over the disclosure of documents. The Applicant, Vasey, sought an order for the production of documents from a non-party, Workplace Law Group, pursuant to an existing notice of non-party disclosure. The Respondent, Gladstone Area Group Apprentices Limited, resisted the disclosure on the grounds of legal professional privilege. The central legal issue was whether the Respondent’s claim of legal professional privilege should be upheld, and if not, which documents should be disclosed.

The Court considered the nature and purpose of the documents sought, applying the dominant purpose test as outlined in previous cases. The Court found that the documents relating to the show cause letter and the performance management process, which were the subject of the dispute, were not protected by legal professional privilege. The Court held that the dominant purpose of the communications was to address the employee’s conduct and performance issues. The Court rejected the argument that the delay in bringing the application for discovery was a relevant factor against granting the order, emphasising that the delay did not affect the outcome in this instance.

The Court made several orders to facilitate the disclosure process. It directed Workplace Law Group to produce documents in categories 2 and 3, with specific instructions on what should be redacted and the timeframe for production. The Court also specified that documents in categories 1, 4, and 5 were not to be produced. Additionally, Workplace Law Group was required to notify the Applicant of any reasonable expenses incurred in producing the documents within one month of their production.

Orders

Orders of the court

1. With regard to the Notice of Non-Party Disclosure issued by the Applicant on 13 February 2023, Workplace Law Group is to produce to the Applicant, in accordance with the Industrial Relations (Tribunals) Rules 2011 (Qld) rule 64H(1):

a. Documents in Category 2 (noting that any legal advice unrelated to the purpose of managing Ms Vasey’s alleged performance and conduct issues should be redacted); and

b. Documents in Category 3, relating only to material relied upon in Mr John Hynes’ statement prepared by Ms Sarah Lock of Workplace Law Group.

2. Workplace Law Group is to produce the documents referred to in Order 1 within 21 days of this decision being released, unless an appeal of these orders is filed in the Industrial Court of Queensland before that date;

3. Workplace Law Group is not required to produce documents in Category 1, 4 or 5.

4. Within one month after producing the documents referred to in Order 1 above, Workplace Law Group is to give the Applicant written notice of its reasonable expenses of producing those documents.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Respondent says that delay in bringing an application for discovery is a relevant factor that may militate against an order being granted, particularly where the delay is unexplained.[21] The Respondent points to the recent decision of Harper v Gold Coast Pistol Club Limited,[22] which it says is instructive given the Applicant’s delay in seeking the disclosure has resulted in hearing dates being vacated and that this not only impacts on the Respondent but also the Commission’s broader capacity to use its limited resources. [21] Dixon v Watpac Ltd [2022] FedCFamC2G 778, [149]; Deputy Commissioner of Taxation v Miller [2021] WADC 29, [107]-[110]; Australian Mud Co Pty Ltd v Coretell Pty Ltd (No 2) [2014] FCA 723, [11]; Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 3) [2018] FCA 1540, [36]. [22] [2023] FedCFamC2G 206.Consideration The material that the Applicant seeks Workplace Law Group to produce is replicated above at [3]. With regard to category 1 listed in [3], I am of the view that this category is far too broad to enable a proper consideration of what may need to be produced. I agree with the Respondent that this category may include material created for the purpose of the current proceedings and I will not order its production.Category 2: Documents sought relating to any matter referred to in the Respondent’s letter to the Applicant of 10 May 2021 With regard to category 2, material relating to any matter referred to in the letter to Ms Vasey dated 10 May 2021, it is clear that the concerns set out in the show cause notice must have arisen from documented conversations, meetings and records. It is my understanding that a range of this material has already been filed in this proceeding. Any of the documents, emails or notes pertaining to the matters or allegations put to Ms Vasey in that letter should have already been properly made available to her, either at the time, or through disclosure from ATQLD in this matter. However, it appears from the correspondence that the performance management process was ‘outsourced’ to Workplace Law Group and to that extent it is possible that some of the relevant documents may have been in the possession of Workplace Law Group and may not have been disclosed. The parties have extensively addressed the ‘dominant purpose test’ in their written and oral submissions. In considering the documents sought in Category 2, I adopt the definition set out in Spotless where it was stated that ‘… In its ordinary meaning, dominant indicates that purpose which was the ruling, prevailing or most influential purpose’.[23] In Talbot v Boyd Legal (A Firm) & Ors,[24] Applegarth J held that ‘An appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence.’ [23] Spotless (n 7) 98.[24] [2020] QSC 185, [80]. Having heard the arguments of the parties with regard to the claim of legal professional privilege over the documents relating to the show cause letter, I am of the view that the dominant purpose of that letter was to address conduct and performance issues of an employee. Communications between Workplace Law Group and ATQLD relating to the letter of 10 May 2021 were for the dominant purpose of dealing with Ms Vasey’s purported performance and conduct issues and the show cause process related to that.