Wilks v Qu (Subpoena Objection)
[2022] VCC 1448
•6 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Defamation List
Case No. CI-21-04887
| ROBERT LEWIS WILKS | Plaintiff |
| v | |
| DORI QU (also known as Qingshi Qu and Dori Deng) | Defendant |
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JUDGE: | Her Honour Judge Clayton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 September 2022 | |
DATE OF RULING: | 6 September 2022 | |
CASE MAY BE CITED AS: | Wilks v Qu (Subpoena Objection) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1448 | |
RULING
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Subject:EVIDENCE – DEFAMATION
Catchwords: Client legal privilege claimed over subpoenaed material – Whether investigation and report for dominant purpose of lawyer providing legal advice to client – Waiver – Confidentiality
Legislation Cited: Evidence Act 2008 (Vic)
Cases Cited:Perry v Powercor [2011] VSC 308 – Bowker & Anor v DP World Melbourne Limited T/A DP World & Anor [2015] FWC 7887
Ruling: Objection upheld in part
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Mukerjea with Mr G Jegatheesan | ALT Legal Associates |
| For the Defendant For the University of Melbourne | Mr T J Mullen with Ms R Preston | Maddocks Corrs Chambers Westgarth |
HER HONOUR:
1The background to this matter is set out in some detail in my ruling in Wilks v Qu (Ruling) [2022] VCC 620.
2In that ruling I made orders that the serious harm element be determined prior to trial. In preparation for the hearing on the serious harm element, both parties have filed and served subpoenas on non-parties.
3On 5 July 2021 the defendant made allegations about the plaintiff to an employee of the University of Melbourne (‘the University’), Tom Mullumby. Mr Mullumby works for Melbourne University Sport (‘MUS’), a department of the University. Mr Mullumby brought the complaint to the attention of Rod Warnecke, the Sport Development Manager, who forwarded it to Cath Sedunary from ‘Safer Communities’, noting that she would ‘reach out to Employee Relations’.[1]
[1] It appears that ‘Employee Relations’ is a reference to Workplace Relations.
4On 7 July 2021 the Associate Director of Workplace Relations, Martin Bower, emailed Sally Eastoe and Sean Hogan and noted he had had a discussion with ‘Safer Communities and MU Sport’. In his email he notes that he advised MUS they should consider commencing an investigation and should consider engaging an external investigator to assist in the scope of such an investigation which would be ‘a fact-finding investigation in the first instance’.
5On 9 July 2021 Mr Bower sent an email to Ms Eastoe and Mr Hogan noting amongst other things the need to ‘ensure we manage the reputational risk to the University’ and discussing who will bear the cost of the investigation.
6On 16 July 2021 Mr Bower emailed Mr Warnecke and noted that Workplace Relations did not have the budget for an investigation and that MUS would have to engage the investigator.
7On 23 July 2021 Mr Bower informed Mr Warnecke and others that he had spoken with barrister Brian Lacy and ‘confirmed that we were seeking his assistance to undertake an investigation on behalf of the club and MU Sport’.
8On 28 July 2021 Mr Bower emailed Mr Lacy seeking to retain his services to investigate the allegation.
9On 29 July 2021 Timothy Lee sent an email to the defendant, informing her that the University had appointed an independent investigator.
10On 30 July 2021 and 3 August 2021 the plaintiff’s solicitors contacted Mr Warnecke in relation to steps taken by the University.
11On 2 and 3 August 2021 MUS sought advice from the University’s legal department.
12From at least 5 August 2021 Ms Brunton-Makeham from the legal department communicated with Mr Lacy as well as the plaintiff’s lawyers.
13On 18 July 2022 the plaintiff subpoenaed the University. The University objects to inspection of some of the documents it produced pursuant to the subpoena.
14On 14 July 2022 the plaintiff subpoenaed Mr Lacy. Mr Lacy has produced documents pursuant to the subpoena. The University objects to inspection by the parties of those documents on the basis that they are privileged.
Privilege Claim
15The subpoena to Mr Lacy seeks:
(a) documents recording the circulation or republication of the defendant’s email to the University (‘MU email’) dated 5 July 2021;
(b) documents recording circulation or republication of the allegations contained within the MU email; and
(c) documents recording discussions, consideration or deliberation of the email or the allegations contained within the MU email.
16The subpoena to the University seeks the above documents as well as:
(a) documents recording the circulation or republication of two letters sent by the University to the plaintiff and/or his solicitors and any drafts of those letters, being letters which referred to the nature/substance of the allegations in the MU Email and, in the case of the second letter, referred to the findings of Mr Lacy’s investigation and the decision of the University;
(b) documents recording certain directions given by the University to the Melbourne University Powerlifting Club (‘MUWPC’) and any discussion or deliberation in relation to those directions;
(c) documents recording the outcome or findings of Mr Lacy’s investigation (‘Lacy Investigation Findings’), the circulation of the Lacy Investigation Findings, and any deliberation or consideration of the Lacy Investigation Findings.
17The plaintiff submits the forensic purpose of the documents is to identify two matters relevant to the Court’s assessment of whether the plaintiff has suffered serious harm:
(a) the extent to which the defamatory allegations in the MU email have been circulated as part of the University’s investigative process, or otherwise by reason of the ‘grapevine’; and
(b) the reactions of persons to whom the defamatory allegations in the MU email were distributed, including any views which they formed about the plaintiff.
18The University submits that, as to the extent of spread of the allegations, the University is prepared to provide a schedule of all persons who received the MU email or the allegations contained within the MU email. Further, the extent of dissemination of the email and the investigation report is largely apparent from the schedule provided which sets out the documents over which privilege is claimed.
19The issues for determination in this application are:
(a) whether a claim of client legal privilege attaches to communications between the University and Mr Lacy, including the report of his investigation;
(b) whether any such privilege has been waived;
(c) whether documents over which a prima facie claim of privilege could be raised ought be made available for inspection to the extent such documents also record the extent of circulation of the MU email or the Lacy Investigation Findings.
20The University’s claim to privilege over its own documents is to be determined by applying the provisions of Part 3.10 of the Evidence Act 2008 (Vic). However, the claim in relation to the Lacy documents is governed by the applicable principles at common law.[2]
[2] Cargill Aust Ltd & Ors v Viterra Malt Pty Ltd & Ors (No 8) [2018] VSC 193, [42]; Alphington Developments Pty Ltd v Amcor Limited (No 2) [2018] VSC 293, [22]-[27].
21Nothing turns on this distinction. The applicable test is whether a document or communication was created for the dominant purpose of the University’s legal department providing legal advice to the University.[3]
[3] Evidence Act 2008 (Vic), s118; Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49, [35] (Gleeson CJ, Gaudron and Gummow JJ); Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, [9] (Gleeson CJ, Gaudron, Gummow and Hayne JJ.
22A ‘dominant purpose’ is one that predominates over other purposes; it is the prevailing or paramount purpose.[4]
[4] AWB v Cole (2006) 232 ALR 743, [105]-[106] (Young J); Federal Commissioner of Taxation v Pratt Holdings [2005] FCA 1247, [30] (Kenny J).
23The University relies on the evidence of Grace Brunton-Makeham in her affidavit affirmed 2 September 2022. Ms Brunton-Makeham is a senior lawyer in the Legal and Risk Portfolio of the University. She says the University’s legal department acts in a legal capacity ‘at all times’ and does not perform other functions.
24The University’s legal department provides legal services across the University and the University gets all its legal services from the legal department or external law firms and barristers.
25Ms Brunton-Makeham says she provides legal services in relation to ‘escalated disputes and litigation’, and she does not perform any commercial or executive role. She considers the various University departments to be her ‘internal clients’ and she does not have authority to make decisions on behalf of the University except on instruction from internal clients.
26She says that after being contacted by MUS on 2 and 3 August 2021, from about 10 August 2021 she provided all instructions to Mr Lacy. She assisted Mr Lacy to confirm the scope of the investigation, the allegations to be put to the plaintiff and procedural matters such as obtaining University documents.
27She says the dominant purpose for which she sought to procure Mr Lacy’s findings, advice and investigation report was in order for her to provide legal advice to the University about how to respond to the defendant’s allegations and how to manage those involved.
28She says that as well as conducting an investigation, Mr Lacy provided legal advice to her in his capacity as a barrister for the purpose of her advising her clients – the University’s various departments.
29The investigation report was provided to Ms Brunton-Makeham on 24 November and a confidential legal advice letter was provided on 5 December 2021. Though the report was addressed to Mr Bower, this was an error as he was not involved in the matter after 10 August 2021 and has never received or seen a copy of the investigation report or legal advice.
30Ms Brunton-Makeham, together with her supervisor Mark Flaherty, then drafted a memorandum of legal advice for the Provost, Nicola Phillips who was the relevant decision maker in relation to the matter.
31Ms Brunton-Makeham says the investigation report was prepared for and provided to the University for the dominant (and in fact only) purpose of providing legal advice. The investigation report and accompanying advice comprise legal advice from a barrister to the University. In addition, Mr Brunton-Makeham used the report and advice to draft her own memorandum of legal advice to the University decision-makers.
32The University submits that although initially the legal department was not involved in discussions with Mr Lacy, at least from the point that the legal department took over those discussions, the dominant purpose was always the provision of legal advice by Ms Brunton-Makeham to her client, the University.
33To that end, the University says that the intention at the time MUS and Workplace Relations first discussed retaining Mr Lacy, and their intention at the time of initial conversations with him, is irrelevant to the test.
34Whilst not conceding that there was ever any other dominant purpose for engaging Mr Lacy, the University submits that the relevant test is confined by wording of the legislation.
35Section 118 of the Evidence Act 2008 (Vic) provides that:
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of –
…
(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.
36The plaintiff submits that the sequence of events set out at paragraphs 3-11 above demonstrate that the dominant purpose for Mr Lacy’s appointment, investigation and report was to conduct a fact-finding investigation into the defendant’s allegations against the plaintiff. He was retained prior to any involvement by the University’s lawyers and there is no evidence of any document which purports to record the instructions given to Mr Lacy, nor any document in the nature of a contract or letter of engagement.
37The plaintiff submits the decision to engage Mr Lacy was made well before Ms Brunton-Makeham’s involvement and therefore her purpose in dealing with Mr Lacy is not determinative.
Mr Lacy sent the plaintiff’s solicitor a letter dated 21 September 2021 in which he described his role as being to conduct an investigation to determine whether:
1. you had a relationship of a sexual nature with Dori Qu whilst you were a coach of Dori Qu at Melbourne University Weightlifting and Powerlifting Club (MUWPC) and she was a student of the University; and
2. there was inappropriate or unwanted physical contact and/or contact of a sexual nature by you of Dori Qu while you were coaching Dori Qu at MUWPC.
38Mr Lacy notes that the standard of proof will be the balance of probabilities and that ‘I am instructed that the University will use these findings to determine what rights it may have and/or what steps it should take in relation to the allegations (if any)’.
39The plaintiff submits that nothing in this letter indicates any purpose to provide legal advice to the University.
40The plaintiff submits that the facts before the Court appear to be distinct from circumstances in which the relevant communications were plainly ‘created by lawyers in a professional capacity with reference to the performance of work covered by the lawyer’s retainer to give legal advice’.[5]
[5] Kirby v Centro Properties Ltd (No 2) (2012) 87 ACSR 229, 251, [71] (Bromberg J).
41Rather, the evidence ‘points to another purpose or purposes held by the client which suggests an alternative purpose in relation to the whole or perhaps a part of the communications in question’.[6]
[6] Ibid, [74].
42The plaintiff submits that the Lacy Investigation is a ‘manifestation of the need of a corporation to acquire in actuality the knowledge that it is always deemed to possess and which lies initially in the minds of its agents’. [7]
[7] Grant v Downs (1976) 135 CLR 674, 687 (Stephen, Mason and Murphy JJ).
43The plaintiff submits that the dominant purpose can only be ascertained by an assessment of the purpose of Mr Bower in retaining Mr Lacy, and tellingly, there is no evidence from Mr Bower. The plaintiff submits that I ought to draw an adverse inference that the evidence of Mr Bowers would not assist the plaintiff, and that the situation is analogous to that in Perry v Powercor [2011] VSC 308. In that case, Robson J found that Powercor had failed to adequately explain the reason why it obtained the reports in view of the many different purposes for which it needed the reports.
44In contrast to the circumstances of Perry v Powercor, in this proceeding, Ms Brunton-Makeham has asserted the purpose for which the investigation report and advice were obtained was only to provide legal advice.
45It is clear that, when faced with an allegation of the kind the defendant has made against the plaintiff, an organisation such as the University is likely to have a number of concerns, many of them legal in nature. These might include, if the allegations are proven, what action is open to it, what exposure it may have to any claims against it by either party, whether there have been any breaches of the law for which it might be vicariously or otherwise liable, and what, if any, disciplinary procedures are open. In addition, the University might have a number of other concerns, such as reputation damage and concern about the welfare of students and others affiliated with the University.
46The University submits that any evidence from Mr Bower as to his intention on or around 28 July 2021 when he engaged Mr Lacy is irrelevant to the matters I must consider.
47The University says that, even if the initial intention in undertaking the investigation was not predominantly for legal advice, or had a mixed purpose, that intention changed when the plaintiff’s solicitor, Ajai Thapliyal of ALT Legal Associates, wrote to Mr Warnecke on 30 July 2021. In that letter Mr Thapliyal sought a copy of the complaint received by MUS, a copy of the MUWPC Affiliation Agreement, ‘precise details’ of the course of power MUS or the University rely on to take various steps including appoint an investigator, suspend the plaintiff from the MUWPC activities, take disciplinary action against the plaintiff and ‘demand’ that the plaintiff refrain from speaking to other MUWPC members regarding the investigation. Mr Thapliyal asked for further information including to whom the complaint had been referred and any third parties who had bene notified about the complaint. Mr Thapliyal asserted that the conduct of the University and MUS ‘represents an egregious abuse of power’ and reserved his client’s rights.
48As a result of that letter, the matter was referred by Mr Bower to the legal department.
49If Mr Lacy was commissioned to provide a report and undertook the investigations and substantially or wholly prepared his report prior to the legal department coming on board, it may be difficult to find that the report was prepared for the dominant purpose of providing legal advice, notwithstanding that Ms Brunton-Makeham used the investigation report and advice for this purpose.
50It is the purpose for obtaining the report that is the crucial issue, not the subsequent use to which it is put.
51On the other hand, if the intention of Mr Warnecke in engaging Mr Lacy was not predominantly to obtain legal advice, or had a mixed purpose, but the intention changed once the legal department became involved, it may be that adducing evidence of the contents of those documents would disclose evidence which was obtained for the dominant purpose of providing legal advice.
52This is a case that turns on its own facts. The question of what was done by Mr Lacy at what stage, the scope of his instructions and the degree, if any, to which his instructions changed after the legal department became involved, are important to the determination of the question of the dominant purpose.
53For this reason I considered it necessary to review the documents produced by Mr Lacy and the University to see what, if any, light those documents shed on the purpose for retaining Mr Lacy to conduct the investigation.
54A review of those documents discloses the following:
(a) Mr Lacy was asked by Mr Bower to review a complaint by the defendant on 28 July 2021.
(b) At that time he was asked to:
(i)review the complaint;
(ii)identify relevant parties and potential witnesses;
(iii)formalise the complaint into allegations;
(iv)make findings of fact in relation to the formalised allegations;
(v)report those findings to the University; and
(vi)identify issues for consideration by the University in relation to potential sanctions.
(c) The last of these tasks envisages the possible provision of legal advice, or at least the identification of matters upon which legal advice might be required.
(d) The legal department became involved in the matter on 2 August 2021.
(e) After the legal department became involved, the scope of the investigation changed significantly. Without going into specifics which would tend to disclose the nature of privileged communications, the scope of the investigation changed to include matters that would have an impact solely on legal issues, and was targeted to the making of findings of fact that would inform the advice Ms Brunton-Makeham would need to provide to the University. Mr Lacy was still requested to make findings of fact, but it is clear from the documents that the initial instructions provided by Mr Bower on 28 July 2021 were revised. There is specific reference to the ‘reframed scope of the investigation’. Fact-finding remained a focus only to the extent that it was necessary to support legal advice. Indeed the ‘fact-finding’ aspect of the investigation into the defendant’s allegations did not go beyond the largely uncontested fact that a sexual relationship had taken place between the plaintiff and defendant.
(f) The purpose for engaging in the fact-finding investigation was not for the dominant purpose of ascertaining what had happened, but rather to inform what advice Ms Brunton-Makeham would give to the University.
(g) It was only after the legal team became involved and Mr Lacy had had email exchanges with Ms Brunton-Makeham that his retainer was confirmed on 6 August 2021. Ms Brunton-Makeham appears to have been the primary person involved in determining the scope of the retainer and the matters for investigation, including limiting some aspects of the investigation and expanding others.
(h) All interviews took place after the legal team were involved. The defendant was interviewed by Mr Lacy on 19 August 2021. The plaintiff declined to be interviewed.
(i) There is no evidence that any work at all was done by Mr Lacy between being initially retained on 28 July 2021 and being contacted by Ms Brunton-Makeham with an amended scope of instructions on 5 August 2021.
(j) Mr Lacy was unsure whether he was retained and sought clarification on 6 August 2021.
55A review of the documents, together with the evidence from Ms Brunton-Makeham, satisfies me that from the time the legal department became involved on 2 August 2021, Mr Lacy’s investigation was predominantly for the purpose of providing legal advice; that is, to make findings of fact for the purpose of Ms Brunton-Makeham providing advice to the University in light of the findings by Mr Lacy. It is clear that the dominant purpose of obtaining Mr Lacy’s report was the provision of legal advice by the legal department to the University.
56Until the matter came to the attention of the legal department on 2 August 2021, it is not clear that the dominant legal purpose of MUS, Workplace Relations or Safer Communities in discussing a possible investigation was for the purpose of obtaining legal advice.
57The only stated purpose was for a determination of the facts. The only other motivation mentioned was the reputational risk. One of the purposes of retaining Mr Lacy at that stage was in order to identify issues for consideration by the University. These may include legal issues, however in the absence of evidence from Mr Bower it is not clear what was contemplated. The University has not satisfied its onus of establishing that, prior to the involvement of the legal department, the dominant purpose in engaging Mr Lacy was for the provision of legal advice.
58For this reason, those documents created prior to the involvement of the legal department are not documents prepared for the dominant purpose of a lawyer providing legal advice to a client. Accordingly I am not satisfied that documents 2.001, 2.002, 2.003, 2.004, 2.005, and 2.006 of the documents produced pursuant to the University of Melbourne subpoena are privileged. Nor am I satisfied that pages 6, 7, 32-33, 109-110 (replica of 32-33), 111, and 112 of Mr Lacy’s produced bundle of documents are privileged.
59Some of the documents over which privilege is claimed are copies of documents that are not themselves privileged. A document which itself is not privileged can become privileged when attached to an email or otherwise communicated on a privileged occasion, and for that reason I accept the claim of privilege made in respect of otherwise non-privileged documents when attached to a privileged email or communication.
60The plaintiff submits that where documents are prima facie privileged, those documents ought still be disclosed to the extent that they demonstrate the scope of the circulation of the MU email or the allegations contained in the MU email, and the reactions of persons to whom the defamatory allegations in the MU email were distributed, including any views which they formed about the plaintiff.
61The University has already agreed to provide a list of persons to whom the MU email and allegations were circulated. It is not clear that the reactions of any person to whom a defamatory allegation has been conveyed has any role to play in determining whether the document is privileged. For that reason I do not accept that it is a matter I can consider in determining whether to allow inspection.
Waiver of Privilege
62The plaintiff argues that, if the Lacy Investigation Findings constitute privileged legal advice, that privilege has been waived.
63Presumably this submission extends to the finding I have made, which is that the investigation report and advice were produced for the dominant purpose of providing legal advice.
64Privilege is waived where a party entitled to the privilege acts inconsistently with the maintenance of the confidentiality which the privilege is intended to protect.[8] A party is taken to have acted inconsistently if they knowingly and voluntarily disclose the substance of the evidence to another person, or the substance of the evidence is disclosed with their consent.[9]
[8] Evidence Act 2008 (Vic), s 112(2); Osland v Secretary, Department of Justice (2008) 234 CLR 275, [45] (Gleeson CJ, Gummow, Heydon and Kiefel JJ).
[9] Evidence Act 2008 (Vic), s 112(3).
65The plaintiff submits that the substance of the legal advice has been deployed in this case for forensic or commercial purposes.[10]
[10] Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101 at [68] (Gyles J); Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 at [31].
66Alternatively the gist or conclusion of the legal advice has been communicated, which amounts to a waiver of that advice. The plaintiff relies on the letter sent by the University on 11 February 2022 which stated:
Mr Lacy has now finalised his investigation and provided the following findings to the University:
1. Based on Dori Qu’s evidence, which Mr Lacy concluded was credible:
(a) you engaged in relationship of a sexual nature with Dori Qu whilst you were a coach of Dori Qu at MUWPC and she was a student of the University; and
(b) there was a significant power imbalance between yourself and Ms Qu – you being 67 years of age and her 23 years (that is, 44 years your junior). Further, you were Ms Qu’s powerlifting coach and you cultivated a relationship with Ms Qu by using your status or position in the MUWPC to support her in a disagreement with the Club and then suggested Ms Qu was indebted to you for the support; and
2. As to whether you sexually harassed Dori Qu, it is indeterminate due to lack of evidence. However, based on Dori Qu’s evidence, you have a case to answer.
Having considered Mr Lacy’s findings, the University has determined that your conduct in engaging in a sexual relationship with a student in circumstances where there was a significant power imbalance falls well below of the standards expected by the University of those involved in or part of its community, in this case as a coach of a student at a University affiliated club that uses University premises and or facilities.
67It is difficult to understand how it is said that this discloses legal advice received by the University. It states the conclusions Mr Lacy reached after conducting his investigation but does not make any reference to any legal avenues open to the University. Nor is it clear how it could be said that disclosing the findings of fact could be said to obtain a forensic or commercial advantage.
68In Bowker & Anor v DP World Melbourne Limited T/A DP World & Anor [2015] FWC 7887, the Fair Work Commission found there was no waiver of privilege when a part of a report disclosed:
… no more than to set out the particulars of the specific complaints made by Ms Bowker and Ms Coombes and to set out the finding made, in the sense that it indicates whether the matters complained of were able to be substantiated, were not substantiated or were not able to be substantiated. The Gunzberg Sumary appears to me to disclose no more than the conclusions reached by Mr Gunzberg and not the substance of his report or the reason for reaching any particular conclusion.[11]
[11] Bowker & Anor v DP World Melbourne Limited T/A DP World & Anor [2015] FWC 7887, [34].
69Similarly in this case, the letter sent to the plaintiff by the University on 11 February 2022 does no more than set out the allegations that were made and the conclusions reached. It does not disclose the substance of the report or the reasons for reaching any particular conclusion.
70I am not persuaded that the University has waived privilege over the investigation report and advice or any other document.
Confidentiality
71As I have made findings that the majority of the documents over which privilege claimed are not to be disclosed, and there has been no waiver of privilege, concerns in relation to confidentiality may not arise. No claim of confidentiality is made over the documents I have determined can be inspected from the documents produced by the University.
72It is not clear that the general concerns expressed by the University in relation to disclosure of confidential documents, for example the potential chilling effect on persons coming forward, arise in the context of the documents I have determined can be inspected from those produced by Mr Lacy (pages 6, 7, 32, 33, 109, 110 (replica of 32-33), 111, and 112). If any such concern does exist and the parties cannot come to an agreed position in relation to redaction of names, I will hear further from the parties in relation to those specific documents.
73I will also hear from the parties on the question of costs.
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