Victorian WorkCover Authority v Asahi Beverages Australia Pty Ltd (Ruling)
[2014] VCC 1260
•13 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
CI-14-00042
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| ASAHI BEVERAGES AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 August 2014 | |
DATE OF RULING: | 13 August 2014 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Asahi Beverages Australia Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1260 | |
RULING
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Subject: DISCOVERY
Catchwords: Application for discovery of investigation reports said to have been sought in contemplation of litigation – whether sole or dominant purpose for commission of reports was for contemplated litigation
Legislation Cited: Accident Compensation Act 1985, s138
Cases Cited: Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526; Grant v Downs (1976) 135 CLR 674; Baker v Campbell (1983) 153 CLR 52; Wheeler v Le Marchant (1881) 17 Ch D 675; Collins v London General Omnibus Co [1891-4] All ER Rep 213; Laurensen v Wellington City Corporation [1927] NZLR 510; Brunswick Hill Apartments Pty Ltd v CGU Insurance Ltd [2010] VSC 532; Esso Australia Resources v FCT (1999) 201 CLR 49
Ruling: The application of the defendant for discovery of reports granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff (Respondent) | Ms D N Black | Wisewoulds |
| For the Defendant (Applicant) | Ms G Cooper | Wotton + Kearney |
HIS HONOUR:
Preliminary
1 This is an application by Summons dated 18 July 2014, issued by the defendant, Asahi Beverages Australia Pty Ltd (“Asahi”), seeking production of two circumstances or investigation reports of an investigation company, Probe Group Pty Ltd (“Probe”), dated, respectively, 13 April and 21 April 2011 (“the Probe reports”). The application was supported by an affidavit of Mr Andrew Reiner Seiter, sworn 17 July 2014. In response, Asahi filed an affidavit by its legal practitioner, Ms Danielle Nicole Black, sworn 7 August 2014.
2 The principal proceeding is an action pursuant to s138 of the Accident Compensation Act 1985 (“the Act”) wherein the plaintiff, the Victorian WorkCover Authority (“VWA”), seeks an order against Asahi for indemnity for payments of compensation made pursuant to the Act to a worker, Mr Iain Stewart McLean (“the worker”). The payments were made by the VWA on behalf of the worker’s employer, J & T Refrigeration Transport Pty Ltd (“the employer”).
3 The worker suffered a crushing injury to his left hand in the course of his employment duties on 12 February 2011 (“the incident”). At the time, he was employed by the employer and his duties required him to attend the premises of Asahi where, in the course of unloading a pallet, he suffered the claimed injury.
4 A Worker’s Injury Claim Form was completed by the worker and dated 16 March 2011.[1] The employer signed and submitted an Employer Injury Claim Form dated 16 March 2011.[2] According to information contained in that form, at the time the worker suffered injury, he was acting in the course of his employment.
[1]Exhibit ARS1 to the affidavit of Mr Seiter
[2]Part of exhibit ARS4 to the affidavit of Mr Seiter
5 The Worker’s and the Employer’s Claim Forms were submitted to the plaintiff’s authorised agent, CGU Worker’s Compensation (Vic) Limited (“CGU”), on 21 March 2011.[3] Shortly thereafter, CGU determined to obtain a “circumstance investigation report” of the incident. By letter dated 30 March 2011, CGU wrote to Probe, instructing that company to “conduct a circumstance investigation” of the claim.[4] The letter reads as follows:
[3]Date stamps appear on each of the documents
[4]Exhibit ARS6 to the affidavit of Mr Seiter
“Dear Sir/Madam,
Claim No: : 04100104754/KO
Job No : 320573
Worker: : I S McLean
PO Box 399
KYNETON 3444
Date of Birth : ## ## 1966
Workplace : J & T REFRIGERATED TRANSPORT P/L
90 ROBBS ROAD
WERRIBEE SOUTH 3030
Date of Injury : 12 February 2011Liability : Pending
This letter serves as an instruction to your branch no 000005802 to conduct a Circumstance Investigation on the above claim relevant to the employer’s liability under the provisions of the Accident Compensation Act, and which may result in litigation.
Your enquiries are to be conducted in accordance with the Victorian Workcover Authority’s (VWA) Code of Practice for Private Investigators. Compliance with the code is a condition of your VWA registration and eligibility to conduct operations on its behalf.
The general parameter of the investigation is CIRCUMSTANCE. The following reasons are provided in order to indicate why the claim was selected for investigation.
WITNESS/INFORMANT/INTERVIEWS
CONFIRMATION OF WHETHER INJURY IS WORK RELATEDOTHER - REFER BELOW
You must obtain all employment records relevant to the worker, including the application for employment, wage records, leave records, all Medical Certificates of any nature, the Accident Injury Report Book, any safety investigation reports relevant to the alleged incident (s), and all Group Certificates for three (3) financial years prior to the incident (s).
If the injury was caused in circumstances creating a legal liability on a Third Party, identify that party and provide reasons for potential negligence.
Copies of information papers are attached.
Please mark your report ‘Prepared in contemplation of litigation’.
Your written report quoting our claim number and job number is required by 13 April 2011.
Please acknowledge receipt of these instructions to our contact detailed above.
Yours Sincerely,
CGU Workers Compensation (Vic) Limited
Per:
For and on behalf of the Victorian WorkCover Authority.”
6 According to the affidavit of Ms Black, the author of the letter has left the employ of CGU.
7 The letter contained a document entitled “Enquiry Form for Private Investigator”.[5] The form contained the following:
“Case managers should use this list to request investigation and/or surveillance for claims that have been identified as having the potential for common law, scheme abuse and recovery. …
This form can be used to request an enquiry on the worker, employer or others who might have information which will help in an assessment of the claim. … .”
[5]Referred to in paragraph 11 of the affidavit of Ms Black.
8 The form also contained an array of “boxes” referring to various matters to which the agent should direct enquires. The boxes were grouped under various headings:
· “Circumstances and liability – including recovery potential”
· “Worker’s profile”
· “RTW/Rehabilitation/Employment”.
9 Every box under each of the headings, was ticked, presumably as being relevant for investigation.
10 A preliminary report of 13 April 2011 was prepared by Probe, together with a supplementary report of 21 April 2011. The worker’s claim was accepted by CGU by letter dated 30 April 2011.[6]
[6]Paragraph 12 of the affidavit of Ms Black
11 Neither party urged me to read the Probe reports.
12 The VWA made an affidavit of documents sworn 30 May 2014. The affidavit listed the two Probe reports, but the documents were said to be privileged on the grounds that they:
“… were brought into existence for the dominant purpose of obtaining or providing legal advice in respect of actual, threatened, contemplated or reasonably anticipated litigation after the worker, Iain Stuart McLean was injured and a claim for compensation was made by the worker.”
Litigation privilege
13 A document brought into existence by a party to litigation, or an agent on its behalf, is privileged if it was brought into existence for the purpose of existing or anticipated litigation. It is not necessary that the document be brought into existence by or at the behest of a lawyer. It is further not necessary that litigation had not been commenced at the time the document was brought into existence.
Litigation – pending or anticipated
14 As was said by Batt JA in Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority:[7]
“…the element essential to this aspect of privilege, being a privilege for communications to and from third parties, is that there be litigation either pending or in contemplation and, I would add, that the communication come into existence for use in or in relation to the litigation. That purpose must of course be the sole or dominant purpose. … .”[8]
[7](2002) 4 VR 332
[8]At paragraph [10]
15 Further, Goldberg J, in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd,[9] said:
“… The concept of anticipated proceedings involves the notion that there is a reasonable probability or likelihood that such proceedings will be commenced - not that they will be but rather that more probably than not they will be.”
[9](1998) 81 FCR 526 at 558-560
16 In Mitsubishi Electric, Batt JA adopted the phrase “reasonably anticipated or in contemplation”, having undertaken a review of a number of cases, including Grant v Downs,[10] Baker v Campbell,[11] Wheeler v Le Marchant[12] and Collins v London General Omnibus Co.[13]
[10](1976) 135 CLR 674
[11](1983) 153 CLR 52
[12](1881) 17 Ch D 675 at 681- 2
[13][1891-4] All ER Rep 213
17 Batt JA said that “a mere vague apprehension of litigation” is insufficient.[14]
[14]Laurensen v Wellington City Corporation [1927] NZLR 510 at 511
18 What must be said about the commissioning of the Probe reports was that it was undertaken very soon after the workplace injury occurred. Ms Cooper, for Asahi, submitted that, while the injury was a crushing injury, it was relatively minor and there was nothing to suggest it had the long-term consequences which may result in a claim for damages at common law. However, I was not provided with any medical material as to the precise nature of the injury, and whether there was anything to indicate it would have long-term consequences.
19 In order to determine whether the Probe reports were commissioned for the purpose of anticipated or contemplated litigation, it is necessary to review the purposes for which the reports may have been commissioned in the circumstances which prevailed at the time. Absent any evidence as to the intent of the author of the letter commissioning the reports, it is necessary to look at all of the surrounding circumstances.
20 In my view, there was a range of potential reasons for the commissioning of the reports. These included:
· To determine whether the claim for compensation made by the worker pursuant to the Act should be accepted. Presumably, the claim, at that early time, was lodged for the purpose of obtaining benefits, lump sum payments, payment of medical and like expenses and/or other entitlements contemplated by Part IV of the Act. In order to be so entitled, a worker must have suffered injury which has arisen out of, or in the course of, employment.[15]
[15]Section 83 of the Act
· For the purpose of a common-law damages claim by the worker against the employer for failing to provide a safe system and place of work.
· For potential proceedings against third parties, including Asahi, in a recovery proceeding pursuant to s138 of the Act.
21 It is not clear from the letter from CGU to Probe of 30 March 2011,[16] the precise purpose for which the reports were sought. The “general parameter” of the investigation is said to be “circumstance”. This presumably means an investigation as to the general circumstances of the occurrence of the incident. In the same documents, the phrase “confirmation of whether injury is work related” is stated. There is a request that all relevant employment records be obtained, including wage records, leave records, medical certificates, accident injury report book and safety investigation reports. Further, group certificates for the three financial years prior to the accident were sought. There is further reference to the circumstances which may create a legal liability in a third party.
[16]Exhibit ARS6 to the affidavit of Mr Seiter
22 Viewed overall, this letter would appear to be of a proforma type, generally requesting as much information be obtained as possible relating to the incident, to be used for any one of the purposes identified above. At that point, as is clear from the letter of 30 March 2011, liability for payment of compensation pursuant to the Act had not yet been accepted and was said to be “pending”.[17]
[17]See further letter from CGU to the worker’s treating surgeon, Mr P Maloney, dated 25 March 2011 which records:
“Mr McLean’s claim is currently pending. CGU has 28 days to review. Therefore a decision on the liability of this claim is due on 18th April 2011.”
23 Further, little assistance is garnered from the “enquiry form for private investigator” which accompanied the letter. It suggests investigation be undertaken in respect of a host of matters which could relate to any of the potential areas of enquiry identified above.
24 It was pointed out by Ms Cooper, for Asahi, that had the investigation reports been commissioned specifically for the purpose of a potential common-law claim by the worker against his employer, then the focus of the investigation would have been upon the precise circumstances of the incident, occupational health and safety issues, statements of co-workers, and other material and documentation designed to enquire as to whether the employer had provided a safe system of work. The letter itself, and the accompanying document, commission an enquiry far wider than that.
25 I conclude that while the reports were commissioned for possible contemplated litigation to be brought by the worker against the employer, or even possibly in respect of any potential recovery proceedings against a third party, it is also clear the investigation was commissioned for the purpose of determining whether a claim by the worker for compensation under the Act should be accepted.
Whether the reports were commissioned for the “dominant” purpose of litigation
26 In Brunswick Hill Apartments Pty Ltd v CGU Insurance Ltd,[18] Mukhtar AJ, referring to Mitsubishi Electric, concluded two propositions:
“First, a mere vague apprehension of litigation is insufficient. Secondly, litigation is reasonably anticipated or in contemplation if its initiation is likely or reasonably probable. …
Whilst the anticipation or apprehension of litigation is a state of mind whereby someone considers that something was likely to happen, there must be some objective basis to show a likelihood or a prospect of the litigation happening. When it comes to corporations or large organisations such as an insurer who might be said is a loss bearing entity and for whom litigation is not uncommon as a target, a number of considerations arise. First, as I said at the outset, documents are not privileged merely because one of their intended destinations is the desk of a lawyer: see Esso Australia Resources v FCT.[19] Nor is it enough that reports are commissioned or steps are taken because of established corporate or bureaucratic procedures and the report is made as a result of instructions being followed. Nor is it enough that reports are commissioned merely because litigation is a contingent possibility.
Of particular relevance in insurance claims are reports and documents which owe their existence to an insurer looking to investigate the facts about a particular incident or event. Where the purpose of such a report is for the insurer to satisfy itself about the facts in order to understand its exposure or whether the event fell within the terms of the policy or fell within any exclusions, great care must be taken to ensure that the investigative purpose is not then ex post facto turned into an assertion that the dominant purpose was for use for confidential legal advice or in apprehended litigation.”[20]
[18][2010] VSC 532
[19](1999) 201 CLR 49 at 67
[20]At paragraphs [29] – [30]
27 It has been said that even a “primary” or a “substantial” purpose is not sufficient to satisfy the requirement that the purpose be “dominant”. The touchstone should be the element of paramountcy.[21]
[21]See Williams – ‘Civil Procedure’ – Victoria – paragraph 29.01.630 and the authorities referred to
28 In Mitsubishi Electric, Batt JA determined investigation reports were privileged. However, in my view, there are significant factual differences to the present application. In particular, in Mitsubishi, the reports were commissioned by lawyers specifically for the purpose of advising one of the parties as to liability and quantum. Those lawyers authorised the investigator to seek an expert opinion in relation to the source of an explosion. It would appear clear that specific litigation was very much within the contemplation of the person who commissioned the reports.
29 The position in the present application is distinctly different. At the time the reports were commissioned, it was only shortly after the subject incident. I am satisfied that the first and most significant matter at that point was to determine whether or not the worker’s application for various benefits under the Act should be accepted. It is clear that at the time of the commission of the investigation, the claim was “pending”. While undoubtedly the reports could be used for potential litigation brought either by the worker against his employer, or possibly in a s138 recovery proceeding, it could not be said that such litigation was the dominant purpose for the commissioning of the reports. In my view, if there was a dominant purpose, it was to determine whether the claim should be accepted and benefits paid under the Act.
30 In these circumstances, the dominant test is not satisfied.
31 The application of Asahi succeeds. There should be full discovery of the Probe reports.
32 I shall hear from the parties as to costs.
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