Winra v Skycity Adelaide Pty Ltd
[2012] FCA 1447
FEDERAL COURT OF AUSTRALIA
Winra v Skycity Adelaide Pty Ltd [2012] FCA 1447
Citation: Winra v Skycity Adelaide Pty Ltd [2012] FCA 1447 Parties: BETHANY HELENA WINRA v SKYCITY ADELAIDE PTY LTD and KELMAN DAVID File number: SAD 285 of 2011 Judge: BESANKO J Date of judgment: 18 December 2012 Catchwords: PRACTICE AND PROCEDURE – discovery – application for non-standard and more extensive discovery under Rules 20.13 and 20.14 of the Federal Court Rules 2011 (Cth) (“the Rules”) – alternative application for particular discovery under Rule 20.21 of the Rules.
PRIVILEGE – legal professional privilege – implied waiver – whether privileged legal advice put in issue by pleading – whether implied waiver on basis of partial disclosure.
Held: The first respondent has not waived legal professional privilege. Other orders for discovery made.
Legislation: Federal Court Rules 2011 (Cth), Rules 20.13, 20.14
Australian Human Rights Commission Act 1986 (Cth)
Sex Discrimination Act 1984 (Cth), ss 28A, 28B, 105, 106Cases cited: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12, cited
Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101, cited
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499, cited
Mann v Carnell (1999) 201 CLR 1, citedNine Films & Television Pty Ltd v Ninox Television Ltd (2005) 65 IPR 442, cited
Pratt Holdings Ltd v Commissioner of Taxation (2004) 136 FCR 357
Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347, citedDate of hearing: 14 November 2012 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 21 Counsel for the Applicant: Mr S Mitchell Solicitor for the Applicant: Hamdan Lawyers Counsel for the First Respondent: Ms A Manos Solicitor for the First Respondent: Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 285 of 2011
BETWEEN: BETHANY HELENA WINRA
ApplicantAND: SKYCITY ADELAIDE PTY LTD
First RespondentKELMAN DAVID
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
18 DECEMBER 2012
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1. The first respondent be required to make discovery of the documents which fall within the description in the Schedule below, where the documents:
(a)are relevant to the issues raised by the pleadings or in the affidavits ;
(b) are within the categories set out in the Schedule; and
(c) are, or have been, in the party’s control.
2.The first respondent is to make discovery in terms of Order 1 as follows:
(a)the criteria mentioned in Rule 20.14(1) and (2) of the Federal Court Rules 2011 (Cth) do not apply;
(b)the first respondent is to use categories in the List of Documents and that each document in a category also be separately described;
(c)the discovery is not to be made in electronic form; and
(d)the discovery is not to be given in accordance with a discovery plan.
3.The first respondent is to produce for inspection by the applicant the aforesaid discovered documents within 21 days.
Schedule
All documents recording information relevant to any previous complaint, instances, or alleged instances, of sexual harassment or inappropriate conduct of a sexual nature by Kelman David, including:
(a)any documents recording any information regarding any complaints or regarding any instance or alleged instance of sexual harassment or inappropriate conduct of a sexual nature by Kelman David while an employee of the first respondent;
(b)any documents recording any information regarding any complaints or regarding any instance or alleged instance of sexual harassment or inappropriate conduct of a sexual nature by Kelman David while an employee of Skycity Entertainment Group in New Zealand.
(c)any document recording any information regarding the action taken by the first respondent or the Skycity Entertainment Group in consequence of complaint, or incident or alleged incident of any sexual harassment or inappropriate conduct of a sexual nature by Kelman David.
(d)any documents recording any information regarding the reason for the commencement of the employment of Kelman David by the first respondent including any documents recording information relating to the reason for the transfer within the Skycity Entertainment Group from New Zealand to Adelaide.
(e)Any documents recording any information regarding the circumstances of, or reasons for, the termination of the employment by the first respondent of Kelman David.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 285 of 2011
BETWEEN: BETHANY HELENA WINRA
ApplicantAND: SKYCITY ADELAIDE PTY LTD
First RespondentKELMAN DAVID
Second Respondent
JUDGE:
BESANKO J
DATE:
18 DECEMBER 2012
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
INTRODUCTION
On 7 November 2012 the applicant brought an interlocutory application for non-standard and more extensive discovery under Rules 20.13 and 20.14 of the Federal Court Rules 2011 (Cth) (“Federal Court Rules”), or, in the alternative, particular discovery under Rule 20.21. That is the application which is the subject of these reasons.
On 9 November 2011, the applicant commenced this proceeding by Originating Application under the Australian Human Rights Commission Act 1986 (Cth). In the proceeding, the applicant alleges unlawful sexual harassment by the second respondent, Mr Kelman David, against her while she and Mr David were employed by the first respondent, Skycity Adelaide Pty Ltd. The unlawful sexual harassment is said to have occurred at a staff Christmas Party on 6 December 2010.
The second respondent has not filed an address for service and he has not appeared in the proceeding in this Court.
The first respondent filed a Defence on 30 November 2011. A Reply was not filed by the applicant until 2 October 2012, as a result of delays in a mediation process which had been undertaken and related WorkCover proceedings. On 25 September 2012, I made an order that each party make discovery on or before 9 October 2012. The first respondent served its List of Documents and an affidavit of Mr Cameron Tannock on the applicant on 8 October 2012. Mr Tannock is the human resources manager of the first respondent.
The principal orders sought by the applicant in her interlocutory application are as follows:
3.That the First Respondent be required to make non-standard and more extensive discovery pursuant to Rules 20.13 and 20.14 of the categories of documents set out at Annexure A to this Interlocutory Application.
4. That in making that discovery:
a. The criteria mentioned in Rule 20.14(1) and (2) not apply.
b. The First Respondent be required to make discovery of documents:
i.that are relevant to the issues raised by the pleadings or in the affidavits; and
ii. that are within the categories set out in Annexure A.
iii. that are, or have been, in the party’s control.
c.The First Respondent use categories in the list of documents and that each document in a category also be separately described.
d. The discovery not be made in electronic form.
e. That the discovery not be given in accordance with a discovery plan.
5.Alternatively, that the First Respondent be required to make particular discovery pursuant to Rule 20.21 of the categories of documents set out at Annexure A to this Interlocutory Application.
6.That the First Respondent be ordered to produce for inspection pursuant to Rule 20.32 all documents discovered pursuant to any order made.
Three categories of documents are identified in Annexure A to the interlocutory application. The first category of documents is identified as “Investigation documents” (Category 1). These documents are said to include, “All third party documents obtained or collated; and all documents created which records information obtained; in the course of the First Respondent’s investigation into the events that occurred at the Christmas party held on 6 December 2010”. These documents are further identified to include any written complaints or statements relating to the events at the party, any written notes of those employed by the first respondent who were involved in the investigation of the applicant’s harassment complaint, including Mr Ken Devine, Mr Cameron Tannock, Mr Jean-Paul Spinelli and Ms Carmine Scalfino, including “any emails sent or received by” those identified. Further, the applicant seeks discovery of any reports or memoranda that arose out of or as a result of the first respondent’s investigation, as well as witness statements of any person interviewed in the course of this investigation, including the applicant and the first respondent.
The second category of documents sought by the applicant is identified as “legal advice” (Category 2). Specifically, the applicant seeks “All documents that record the legal advice obtained by the first respondent following the events that occurred at the Christmas Party held on 6 December 2010, and any subsequent legal advice obtained in relation to conducting the investigation, and the employment of Kelman David”. The applicant seeks an order that the first respondent discover any emails, documents or notes recording the advice, the request for the advice or any information provided for the purpose of obtaining the advice.
The third category of documents sought by the applicant is identified as “Previous employment and complaints regarding Kelman David” (Category 3). Specifically, the applicant seeks “All documents recording information relevant to any previous complaint, instances, or alleged instances, of sexual harassment or inappropriate conduct by Kelman David”. Within this category, the documents the applicant seeks include documents recording any complaints of alleged sexual harassment by the second respondent during his previous employment with the Skycity Entertainment Group in New Zealand, documents pertaining to the reason for the second respondent’s transfer from New Zealand to Adelaide, and any documents relating to information concerning the reasons behind the first respondent’s termination of the second respondent’s employment.
In an affidavit of its solicitor, Mr Luke Holland, the first respondent states that it consents to an order that it discover the documents identified in paragraph 1.1 of Annexure A to the Applicant’s interlocutory application except to the extent that the documents are covered by legal professional privilege. It is not clear to me whether the agreed discovery has been made in the first respondent’s most recent List of Documents and why it has not if that be the case. It is not clear to me whether I can or should make an order bearing in mind the proposed exception, that is, documents covered by legal professional privilege. I will have to hear the parties further in relation to any proposed order with respect to paragraph 1.1.
At the hearing of this application there was also substantial agreement between the parties that the applicant was entitled to orders with respect to Category 3. The dispute relates to Category 1 and Category 2. As I understand it, the documents in these categories were not discovered by the first respondent in its List of Documents served on 8 October 2012. The first respondent accepts that it should have done that and it has now served an Amended List of Documents wherein the documents in Category 1 and Category 2 have been included in Schedule 1 Part 2. The issue raised therefore in relation to Category 1 and Category 2 is one of legal professional privilege.
THE EVIDENCE ON THE APPLICATION
The applicant relies on an affidavit of her solicitor, Ms Abby Hamdan, sworn on 7 November 2012. With respect to the documents in Category 1, Ms Hamdan deposes that the extent of the first respondent’s investigation into the applicant’s sexual harassment complaint, and the kinds of documents such an investigation was likely to produce, only became apparent upon inspection of certain documents already discovered by the first respondent, namely a report of Ms Elizabeth Kerr dated 21 September 2012 and a statement of Mr Tannock dated 27 October 2012. With respect to the documents in Category 3, Ms Hamdan deposes to her belief that documents detailing previous complaints made to the first respondent with respect to the second respondent’s conduct exist, on the basis of information provided by the applicant directly to her solicitors. Ms Hamdan states that this same information was provided by the applicant to Ms Kerr and that it appears in the transcript of the latter’s interview with the applicant which is annexed to Ms Kerr’s report.
The first respondent relies on Mr Holland’s affidavit previously referred to. Mr Holland states that while the first respondent does not oppose an order with respect to the documents relating to the termination of the second respondent’s employment (Category 3, paragraph 3.5 of Annexure A), there are no documents concerning this matter that have not already been discovered. Mr Holland also states that the first respondent opposes any order for discovery with respect to the balance of the documents in Category 1 (that is, other than paragraph 1.1) and the entirety of the documents in Category 2 on the ground of legal professional privilege. He deposes to the fact that on 9 December 2010, he received a phone call from Mr Tannock, who sought legal advice with respect to the applicant’s harassment complaint. He deposes to the fact that immediately following this conversation, Mr Tannock commenced the investigation into this complaint “for the sole purpose of obtaining further legal advice”. He states that it was on the basis of the documents “including notes, emails and statements”, prepared as a result of that investigation, that on around 16 December 2010 he provided further legal advice to the first respondent.
ISSUES ON THE APPLICATION
The applicant accepts that, subject to the question of waiver, the documents in Category 1 and Category 2 are the subject of legal professional privilege (Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357). However, she contends that there has been an implied waiver of privilege over the documents by the first respondent.
The applicant puts her case of waiver primarily on the ground that legal professional privilege has been waived by the first respondent’s plea in paragraph 5b of its Defence to the effect that the first respondent’s investigation into the incidents involving the applicant was management action which was reasonable in the circumstances.
During the course of submissions I raised with the parties two questions about this plea. First, I questioned how it was said that the first respondent’s actions after the alleged incidents of sexual harassment were relevant to the applicant’s claim. The applicant’s claim relies on sections 28A, 28B, 105 and 106 of the Sex Discrimination Act 1984 (Cth). Section 28A contains a definition of sexual harassment and s 28B makes it unlawful for a person to sexually harass another person in certain circumstances. Section 105 deals with the liability of persons involved in unlawful acts, and section 106 provides for a form of vicarious liability. The relevance of those sections to the applicant’s claim may be accepted, but the precise relevance of events after the alleged incidents remains unclear to me. Nevertheless, I proceed on the basis that the applicant’s response to the alleged incidents and the first respondent’s actions after the incidents are relevant because the parties have pleaded their respective cases on that basis. I am not to be taken as suggesting that the events are not relevant, simply that their relevance or precise relevance remains to be determined. Secondly, I raised the question of how it was said that the legal advice and the investigation were relevant to the plea in paragraph 5b in the Defence. Counsel for the first respondent said that the fact of legal advice and the fact of an investigation were evidence in support of the assertion in paragraph 5b of its Defence. More particularly, he said:
My instructions are that in respect of paragraph 5b of the defence, in all the circumstances the management action was reasonable, that two pieces of evidence might be called in support of that assertion. The first is that legal advice was sought without disclosing the substance of the legal advice. And the second might be that an investigation was conducted, but without giving details of what occurred during that investigation.
It seems then that the relevant field of discourse is that covered by a line of cases of which Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347 is an early and well-known authority. A shorthand way of describing the field is waiver of privilege where the confidential and privileged communication has been put in issue by the contents of the pleadings. The topic of issue waiver and the effect of the Evidence Act 1995 (Cth) were examined and analysed by Allsop J in DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499. I do not need to discuss his Honour’s conclusions because I think alleged waiver on this basis can be resolved quite simply in this case.
The applicant argued that the first respondent’s plea in paragraph 5b of its Defence raised an issue about the respondent’s state of mind to which the otherwise privileged communications are likely to have contributed. I do not agree. I do not think that the plea in paragraph 5b raises any issue about the first respondent’s state of mind. It is a plea that its management action was reasonable, not a plea that it believed its management action was reasonable. It may be questioned whether the mere fact that the first respondent took legal advice and conducted an investigation takes the first respondent’s case very far, but that is a question for another day. The point is that reliance on those matters and those matters alone does not put the privileged communications in issue such that there is an implied waiver of privilege.
The first respondent seems to have prepared its written submissions on the basis that the applicant was advancing its waiver argument on the ground that there had been sufficient disclosure of the privileged material so that maintenance of privilege would be inconsistent with that disclosure (Mann v Carnell (1999) 201 CLR 1 at 13-15 [28]-[33] per Gleeson CJ, Gaudron, Gummow and Callinan JJ). The first respondent anticipated and dealt with arguments based on disclosures in Ms Kerr’s report and Mr Tannock’s statement. As it happened, I did not understand the applicant to put her arguments on that basis. Bearing in mind the fact that the disclosures went no further than to disclose the fact that legal advice was obtained and an investigation was subsequently conducted, the applicant’s decision not to pursue waiver on this ground was correct: Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101 at 104 [6] per Tamberlin J; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12 at 19 per Rolfe J; Nine Films & Television Pty Ltd v Ninox Television Ltd (2005) 65 IPR 442 at [26] per Tamberlin J.
The applicant has not established that the first respondent has waived legal professional privilege, and orders for the discovery of documents in Category 1 (with the exception of paragraph 1.1) and Category 2 should be refused.
CONCLUSION
By the end of oral submissions neither the terms of Category 3 or the orders to be made in respect of that category were in serious dispute. Orders in the following terms should be made.
1.The first respondent be required to make discovery of the documents which fall within the description in the Schedule below, where the documents:
(a)are relevant to the issues raised by the pleadings or in the affidavits ;
(b) are within the categories set out in the Schedule; and
(c) are, or have been, in the party’s control;
2.The first respondent is to make discovery in terms of Order 1 as follows:
(a)the criteria mentioned in Rule 20.14(1) and (2) of the Federal Court Rules 2011 (Cth) do not apply;
(b)the first respondent is to use categories in the List of Documents and that each document in a category also be separately described;
(c)the discovery is not to be made in electronic form; and
(d)the discovery is not to be given in accordance with a discovery plan.
3.The first respondent is to produce for inspection by the applicant the aforesaid discovered documents within 21 days.
Schedule
All documents recording information relevant to any previous complaint, instances, or alleged instances, of sexual harassment or inappropriate conduct of a sexual nature by Kelman David, including:
(a)any documents recording any information regarding any complaints or regarding any instance or alleged instance of sexual harassment or inappropriate conduct of a sexual nature by Kelman David while an employee of the first respondent;
(b)any documents recording any information regarding any complaints or regarding any instance or alleged instance of sexual harassment or inappropriate conduct of a sexual nature by Kelman David while an employee of Skycity Entertainment Group in New Zealand.
(c)any document recording any information regarding the action taken by the first respondent or the Skycity Entertainment Group in consequence of complaint, or incident or alleged incident of any sexual harassment or inappropriate conduct of a sexual nature by Kelman David.
(d)any documents recording any information regarding the reason for the commencement of the employment of Kelman David by the first respondent including any documents recording information relating to the reason for the transfer within the Skycity Entertainment Group from New Zealand to Adelaide.
(e)Any documents recording any information regarding the circumstances of, or reasons for, the termination of the employment by the first respondent of Kelman David.
I will hear the parties as to whether an order in terms of paragraph 1.1 of the applicant’s interlocutory application is necessary and, if so, the terms of any such order. I will also hear the parties as to costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 18 December 2012
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