Wood v Commonwealth Bank of Australia

DECISION NO: 191/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - PRACTICE AND PROCEDURE - production of documents - claim of legal privilege - whether privilege arises where author of document is industrial officer of union rather than legal practitioner - discretion to order production of documents.
Industrial Relations Act 1988 ss 4, 170EA, 188, 347(1), ( 469(7),
Industrial Relations Act 1971 ss 146(6)
Industrial Relations Court Rules O15r11, O15r14
Evidence Act (Commonwealth) 1995 ss 117, 118, 119, 120, 134
Legal Practitioners' Act (WA) 1893 (as amended)
Cross on Evidence, Australian Loose Leaf Edition, Butterworths
Law of Privilege, McNicol, Law Book Company Limited, 1992
Commonwealth Law Reform Commission Interim Report No. 26, Vol. 2
A Matter of Privilege (1989), R Baxt, 60 Chartered Accountant 34 & 35
Uniform Evidence Law, Odgers, Federation Press, 1995
TPC v Sperling (1979) 36 FLR 244
Jones v Great Central Railway Company [1910] AC 4
M & W Grazebrook & Wallins [1973] A11 ER 868
Grant v Downs (1976) 135 CLR 674
Waterford v The Commonwealth (1986-87) 163 CLR 54
Carter v The Managing Partner, Northmore, Hale, Davy and Leake and Ors (1994-95) 183 CLR 121
Attorney General (NT) v Maurice (1986) 161 CLR 475
AM&S Europe Ltd v Commissioner of European Committees [1983] QB 878
Jay Bradley WOOD -v- COMMONWEALTH BANK OF AUSTRALIA - WI 1022 of 1996
Attorney General (NT) v Kearney (1985) 158 CLR 500
Baker v Campbell (1983) 153 CLR 52
Mallesons v KPMG Peat Marwick & Others (1991) 4 LAR 357
Re Van Laun; Ex parte Chatterton (1907) 2 EB 23
Law Society (NSW) v Harvey [1976] 2 NSWLR 154
Jay Bradley WOOD -v- COMMONWEALTH BANK OF AUSTRALIA - WI 1022 of 1996
Before:                    RITTER JR
Place:            PERTH
Date:                        1 MAY 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1022 of 1996

B E T W E E N:
Jay Bradley WOOD
Applicant

A N D:
COMMONWEALTH BANK OF AUSTRALIA
           Respondent
REASONS FOR DECISION
1 MAY 1996   RITTER JR
BACKGROUND

This trial involves an application under Section 170EA of the Industrial Relations Act 1988. The trial commenced before me on 21 March 1996. It was listed as a one day trial. At the conclusion of that day, the trial was not completed and was adjourned part-heard until 6 May 1996.
Prior to the commencement of the trial, counsel for the respondent (Mr Kemp) sought the production of two documents. He advised me that during the discovery process the respondent had asked for access to certain documents concerning communications between the applicant and the Finance Sector Union. The applicant's response had been that there were two "letters" from the Finance Sector Union but that legal privilege was being claimed in respect of both of these "letters". The claim of privilege was maintained before me. The respondent argued that legal privilege did not cover the production of the documents in question and that production ought to be ordered.
Counsel for the applicant (Mr Lynn) advised me that the documents in question were a letter which was sent by the Finance Sector Union to its industrial officer in Sydney and the advice received back from the industrial officer. Counsel stated that the documents set out the strengths and weaknesses of the applicant's case on the basis of instructions as taken by the state secretary of the Finance Sector Union, Mrs Maureen Locke. The applicant's argument was that these documents were brought into being for the purpose of advice on the legal position of the applicant and were therefore subject to privilege.
The matter was argued before me prior to the opening of the applicant's case. At the conclusion of the argument I advised that I would consider the matter and give my decision before the conclusion of the applicant's cross examination. This commenced prior to the luncheon adjournment. After the luncheon adjournment I advised the parties that I had considered the issue of the production of the two documents. I advised the parties that I did not think it was appropriate to order production of the documents. I indicated that I would later publish my reasons for making this decision. Ideally, the application should have been made at an interlocutory stage so the matter could be determined in a more considered context. I understand that the discovery process was completed close to the time of commencement of the trial so that there was limited scope for such a application. This is also less than ideal.
At the suggestion of Mr Kemp and with the agreement of Mr Lynn, the documents were produced to the Court by Mr Lynn so that I could read them to assist my consideration of the claim of privilege. The documents were a letter dated 31 October 1995 by Mrs Locke, who is the WA branch secretary of the Finance Sector Union, to a Mr Gavin Purtill, an industrial officer at the Finance Sector Union in Sydney and Mr Purtill's memorandum in reply to the letter from Mrs Locke dated 8 November 1995.

THE RULES OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

Order 15 rule 11 of the Industrial Relations Court Rules deals with the issue of orders for production. This rule states:
(1)Where:
(a)it appears from a list of documents filed by a party under this Order that any document is in the party's possession, custody or power;
(b)a pleading or affidavit filed by a party refers to any document; or
(c)it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that any document relating to any matter in question in the proceeding is in the possession, custody or power of a party;
the court may, subject to any question of privilege which may arise, order the party:
(d)to produce the document for inspection by any other party at a time and place specified in the order; or
(e)to file and serve on any other party a copy of the whole or any part of the document, with or without an affidavit verifying the copy made by a person who has examined the document and the copy.
(2)An affidavit made pursuant to an order under paragraph (1)(e) shall, unless the Court otherwise orders, state whether there are in the document copied any and, if so, what erasures, interlineations or alterations.
It can be seen that the discretion to order production of a document is specifically subject to any question of privilege. Order 15 rule 14 confirms that where an application is made for an order for production and a claim is made that the document is privileged from production, the Court may inspect the document for the purpose of deciding the validity of the claim or objection.
The Industrial Relations Court Rules do not specify the boundaries of a claim of legal privilege for the purposes of considering an application for production under Order 15 rule 11. Therefore, the common law applies.
Division 1 of Part 3.10 of the Evidence Act (Commonwealth) 1995 deals with the issue of "client legal privilege". However, the substantive sections of this division are framed in terms of "evidence not being adduced" on matters which attract client legal privilege as set out in the division; see sections 118, 119, 120. Thus, these sections contemplate the situation where evidence is proposed to be admitted during the course of a trial; the sections do not refer to the issue of production of a document either at an interlocutory stage, or as in this case, on the morning of the commencement of a trial and immediately prior to its commencement. Therefore, these sections of the Evidence Act do not directly assist the resolution of the issue currently before the Court; see Odgers, Uniform Evidence Law, Federation Press, 1995, paragraph [118.3].

LEGAL PRIVILEGE AND COMMUNICATIONS

Legal privilege is about the protection from disclosure of confidential communications.
Therefore, in considering the respondent's application, it is first necessary to consider the chain of communications involved and those which the applicant seeks to protect.
It is the applicant's case that his employment was terminated by the respondent on 19 October 1995. After the termination of his employment, the applicant sought advice from his union, the Finance Sector Union. Specifically he consulted Mrs Locke at the WA branch of the Finance Sector Union. He provided instructions to Mrs Locke as to his situation. Mrs Locke wanted to obtain advice from an industrial officer with the union, who worked in Sydney, as to the applicant's legal position, so as to further advise the applicant. For this purpose, Mrs Locke wrote to Mr Purtill on 31 October 1995. This is the first letter of which production is sought. The second document is Mr Purtill's memorandum in reply dated 8 November 1995. This gives advice about the applicant's proposed application. It is clear from the correspondence that at the time the two documents were written, the applicant was contemplating an application to this Court under Section 170EA of the Act. However, at that time the applicant was not represented by a legally qualified person. There was no suggestion that either Mrs Locke or Mr Purtill were legally qualified. It was only after the application was filed that the applicant's solicitors were instructed.
The first question is whether legal privilege protects from production the two documents in issue. Mr Kemp argued that no privilege applied because the character of the advice was not advice between a solicitor and client. Mr Kemp argued that there could be no claim for privilege in the absence of a solicitor/client relationship. Mr Kemp further submitted that as the documents in this case did not have the sole purpose of being handed to solicitors to obtain the advice of a solicitor, the documents were not privileged.
In Cross on Evidence, Australian Loose Leaf Edition, paragraph [25210] it states that legal privilege covers three kinds of communications, being:
(a)communications between the client or the client's agents and the client's professional legal advisers.
(b)communications between the client's professional legal advisers and third parties, if made for the purpose of pending or contemplated litigation; and
(c)communications between the client or the client's agent and third parties, if made for the purpose of obtaining information to be submitted to the client's professional legal advisers for the purpose of obtaining advice upon pending or contemplated litigation.
The communications involved in this case are communications between different officers of the Finance Sector Union, which was the union of the applicant. It could be argued that Mrs Locke, when seeking the legal advice from Mr Purtill, was acting as the agent of the applicant. Looked at in this way, the documents involved will satisfy the kind of communication (a) above if Mr Purtill can be characterised as the "client's professional legal adviser".
Kind of communication (b) does not apply because there was no communication between the client's professional legal advisers and third parties for the purpose of pending or contemplated litigation. This is because I do not think that Mrs Locke could be characterised as the client's professional legal adviser and Mr Purtill, a third party. In addition, it is difficult to see that the communication was made for the purpose of pending or contemplated litigation as that phrase is understood; see Cross paragraph [25235] and the quoted part of the judgment of Lockhart J in TPC v Sperling (1979) 36 FLR 244, subparagraph (c).
The documents would also not fit the kind of communication specified in (c) above as the communications were not between the client or the client's agent and third parties for the purpose of obtaining information to be submitted to the client's professional legal advisers for the purpose of obtaining advice upon pending or contemplated litigation. This is because there is no evidence that at the time the documents were created that there was an intention to obtain advice from a "professional legal adviser" apart from perhaps, Mr Purtill. For the purposes of the kind of communication (c), however, Mr Purtill would have to be the "third party".
Therefore, the only kind of communication which could potentially apply to protect the documents in this case is a communication between the client or the client's agent and a client's "professional legal advisers" for the purpose of obtaining advice on the prospects of success of the potential application to this Court. Whether privilege is attracted then comes down to a question as to whether Mr Purtill can be properly characterised as a "professional legal adviser".

PRIVILEGE AND COMMUNICATIONS WITH A UNION - AUTHORITIES

In answer to a question of mine, Mr Kemp advised that he had not come across any cases which specifically deal with communications between somebody and their union for the purpose of obtaining advice. Mr Lynn did not refer to any cases on this topic.
In Cross on Evidence, Australian Loose Leaf Edition, at paragraph [25245], it is stated that:
"Central to the privilege is the existence of a legal adviser ... In M & W Grazebrook Limited v Wallins [1973] A11 ER 868, Sir John Donaldson sitting as President of the National Industrial Relations Court expressed the view that, in that court at least, privilege should be accorded to industrial advocates, for the policy of the legislature is to encourage such representation".
This is the limit of the discussion in Cross on the issue and there are no Australian cases referred to in the footnote which gives the citation of the Grazebrook decision.
The Grazebrook case concerned an interlocutory appeal to the National Industrial Relations Court constituted by Sir John Donaldson and two other members. The judgment of the court was given by Sir John Donaldson.
That case involved a complaint of unfair dismissal before an Industrial Tribunal. The employers contended that certain documents were privileged by virtue of Section 146(6) of the Industrial Relations Act 1971. The documents consisted of:
(i)Minutes of a meeting held before the employee was dismissed and attended by representatives of the employers and by union shop stewards;
(ii)internal memoranda prepared by the employers' works manager, production manager and personnel officer after the employee's complaint had been presented to the tribunal.
Both sets of documents had been given by the employers to a conciliation officer appointed under Section 146 of the Industrial Relations Act. The Tribunal held that Section 146(6) of the Industrial Relations Act did not render the documents privileged. The employers appealed against this decision. Section 146(6) of the Industrial Relations Act provided that:
Anything communicated to a conciliation officer in connection with the performance of his functions under this section shall not be admissible in evidence in any proceedings before the industrial court or an industrial tribunal, except with the consent of the person who communicated it to that officer.
The Court held that the mere fact that documents had been copied and provided to a conciliation officer did not mean that they were therefore privileged; see page 870 line c. The Court then considered a note in the County Court Practice which stated that "Communications not only with legal advisers, but with other agents, with an actual view to litigation in hand, and the mode of conduct of it, are also privileged". The appellant argued that this paragraph accurately summarised the general effect of previously decided cases. The Court said at pages 870-871:
"We do not think it necessary to follow counsel for the appellant in the full extent of his researches, because in our judgment, if counsel for the respondent is right and this is not the law in relation to the traditional courts, it must be held to be the law in relation to industrial tribunals and this Court. We say that for this reason. Before industrial tribunals it is the rule, rather than the exception, for the parties to be represented by persons other than lawyers. Indeed, it is the policy of parliament to encourage such representation. If the law to be applied to industrial tribunals were not as stated in the note in the County Court Rules, the position would arise that, for example, a personnel officer, when examining as a witness a works foreman, could, at the end of the works foreman's evidence, be called on to hand over the proof of evidence from which he had been examining the witness. Obviously, that would be a wholly untenable situation. Accordingly, we rule that if and insofar as the general law applicable to all courts does not give the privilege set out in the note in the County Court Practice, then, in the interests of the administration of justice, we hold that the privilege exists in relation to proceedings before an industrial tribunal. We would, however, draw attention to the fact that it is a limited privilege. It exists only in relation to communications with an actual view to the litigation in hand and the mode of conduct of it. It does not exist in relation to the situation at the time when the matters complained of were arising."
The Court ordered that the matter be remitted to the tribunal with the direction to consider the matter further in the light of, and consistently with, the judgment of the Court.
Insofar as the judgment refers to "the litigation in hand" it seems that the Court was contemplating a situation where litigation had actually commenced. This view is reinforced by the remaining paragraphs on page 871 of the report where the Court considers the admissibility of the two groups of documents which were before the Industrial Tribunal. However, the Court does not expressly consider the question of documents created for the specific purpose of obtaining or giving advice on whether or not to commence an application.
From my research, this decision has not been judicially considered in Australia. Indeed, from my research, there is a dearth of Australian authority on the issue specifically before the Court. This is a little surprising as it is, as I understand it, fairly common for a person to obtain advice from their union in relation to legal matters such as entitlements under an award, termination of employment, workers' compensation and industrial accident claims.
In, Law of Privilege, McNicol, Law Book Company Limited, 1992 at page 80, the learned author states that: "It further appears that legal professional privilege will cover the case of a lawyer who is a foreign practitioner, a patent attorney and, possibly, an industrial advocate." After the words "industrial advocate", there is a footnote which refers to the Grazebrook decision. There is no discussion of the reason why the learned author states that legal privilege only "possibly" covers the case of an industrial advocate. Further, the sentence is incorrect if it is meant to be read that the industrial advocate in the Grazebrook case was a "lawyer". The paragraph from the Grazebrook decision quoted above specifically refers to "persons other than lawyers". The sentence in McNicol is in my view ambiguous, in that it is not clear whether "lawyer" is read distributively to incorporate "industrial advocate" as well as the other categories listed.
In volume 2 of the Commonwealth Law Reform Commission Interim Report No. 26 entitled, Evidence, at paragraph 237, it is stated that "Privilege has been denied the statements and materials submitted by a dismissed worker to his union in seeking its authority and help in bringing an action". The decision of Jones v Great Central Railway Company [1910] AC 4 is cited in support of the proposition. That authority is also referred to in Cross on Evidence, Australian loose leaf edition, at [25305]. In this paragraph, concerning the rationale of legal privilege, it is stated that:
"The question naturally arises as to whether a similar privilege ought not to be accorded to other relationships. It is hardly surprising that privilege should at different times have been claimed for confidential communications between friends, the source of a journalist's information, documents in the possession of an accountant relating to his client's affairs, disclosures made to priests and doctors, and even for information supplied to a pursuivant of the Royal College of Heralds. All these claims have been unsuccessful".

After the reference to the Royal College of Heralds, there is a footnote which after citing Slade v Tucker, the Royal College of Heralds case, then states "see also Jones v Great Central Railway Company [1910] AC 4 (trade union official)".
In Law of Privilege, McNicol, cited above, the Jones' decision is cited on pages 77 and 80 but there is no discussion of the case relevant for present purposes.
In the Jones' case, a member of a trade union had been dismissed by his employers. He furnished his union with information in writing to enable the officers of the union to decide whether he was entitled to bring an action for wrongful dismissal at the expense of the union and with the assistance of their solicitor. The union rules required this information to be placed before it for the purpose of making such a decision. The trade union member provided information comprising the evidence available in support of the action and the names of witnesses. The union officials sanctioned an action brought by the member, with their solicitor acting as solicitor for the plaintiff. The defendants to the action took out a summons for discovery.
The Court held that the letter from the union member containing the information referred to was not covered by legal privilege.
Lord Loreburn LC with whom Lords Macnaghten, James and Shaw agreed, said at pages 5-6:
"The question is whether or not these documents were privileged from disclosure. My Lords, the rule on this branch of the law of discovery is that, in order to enable to a man to confide unreservedly in his legal adviser, all communications between client and solicitor are protected. The rule is expressed by James LJ in the case of Anderson v Bank of British Colombia as follows. He says: 'The old rule' - meaning the ancient and venerable rule which still exists - 'is that every document in the possession of a party must be produced if it was material or relevant to the cause, unless it was covered by some established privilege. It was established that communications that had passed directly or indirectly between a man and his solicitor were privileged, and that privilege extended no further'. Both client and solicitor may act through an agent, and therefore communications to or through the agent are within the privilege. But if communications are made to him as a person who has himself to consider and act upon them, then the privilege is gone; and that is because the principle which protects communications only between solicitor and client no longer applies. Here documents are in existence relating to the matter in dispute which were communicated to someone who was not a solicitor, nor the mere alter ego of a solicitor.
Disclosure is constantly required of letters between partners or between a firm and its agents. It is rare in litigation when communications are confined to letters passing between solicitor and client. And every large concern, whether a railway company or a trade union or whatever it may be, that must needs conduct [sic] its business by correspondence is amenable to the same rule - a rule in itself wholesome, for it favours the placing before a court of justice of all material circumstances that may lead to a just decision."
There may be some tension between this decision and that of M & W Grazebrook v Wallins. Jones' case is not referred to in the Grazebrook decision. Further, there are factual differences between the Jones' case and the privilege which was envisaged in the case of Grazebrook. That is, in the Jones' decision, litigation had not commenced at the time when the documents were provided to the union whereas in the Grazebrook decision the reference is to "litigation in hand". There is also 63 years between the reports of the two decisions. In that time no doubt the appearance of lay advocates in industrial tribunals and courts gained increased recognition and use.
The Jones' decision suggests that a communication between a union member and its union is not covered by legal professional privilege. The Grazebrook case suggests that communications with union officials and industrial advocates may well be privileged, at least, where there is "litigation in hand".

LEGAL PRIVILEGE - THE NEED FOR A LEGAL PRACTITIONER

Neither the situation in Jones nor Grazebrook is on all fours with the situation before the Court. This is because the situation before the Court involves documents relating to the provision of advice. The document from Mrs Locke to Mr Purtill sets out the factual background and requests the advice. The reply from Mr Purtill provides the advice. There is no doubt that if Mrs Locke was a solicitor and Mr Purtill a solicitor in an interstate office of the same firm who had particular expertise in the field, the documents would be privileged. The question is whether the documents fail to attract privilege because the authors of the documents are an assistant secretary to a state branch of a union and an industrial officer, rather than one of them being a legal practitioner.
This issue can probably best be resolved by a consideration of what attracts the privilege. Is the privilege attracted by the fact that legal advice is sought by a person and obtained, albeit indirectly in this instance; or does the legal advice need to be provided by a legal practitioner for the privilege to apply. The context of this enquiry is that specific litigation was contemplated but not yet commenced and no solicitor had as yet been instructed. The documents do not come into existence for the purpose of use in the anticipated litigation in the sense that the documents seek to obtain or provide evidence. The documents are the request for and the provision of legal advice, albeit by people who are not legal practitioners.
I do not think that the issue has been decided by the High Court, in the sense of there being a binding decision of the Court.
In a number of passages in decisions of the High Court there is a reference to the privilege applying to the provision of "legal advice" without making it clear whether the privilege only applies to legal advice given by a legal practitioner. See, for example, Grant v Downs (1976) 135 CLR 674 at pages 677, 682, 685, 686, 689, 690, 692; and Waterford v The Commonwealth (1986-87) 163 CLR 54 at pages 62, 70, 75, 95. However as in at the latter case, the communications were with qualified legal practitioners, it is not surprising that the reference is to the provision of "legal advice" without, at all times, specific reference to any necessity that there be a legal practitioner involved. There are, however, some observations that go beyond this.
For example, in Grant v Downs at page 685 in the joint judgment of Stephen, Mason and Murphy JJ, their Honours refer to the "rationale" of the privilege in promoting public interest because it assists and enhances the administration of justice by keeping secret communications, "thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor". (emphasis added)
At page 688, their Honours referred to the decision of Jones v Great Central Railway Company and quoted with apparent approval part of the judgment of Lord Loreburn which I have set out above.
In Waterford v The Commonwealth, the Court was considering the issue of legal privilege as it applied to documents containing advice that had passed between the Attorney General of the Commonwealth and the Treasurer and between officers of the Crown Solicitor's Office and officers of the Treasury. This in turn raised the issue of whether legal professional privilege applied to advice given by an "in house" solicitor. Mason and Wilson JJ and in a separate judgment Brennan J (Deane and Dawson JJ dissenting) held that on the evidence before the Court, the documents had been brought into existence for the sole purpose of seeking or giving legal advice and hence were privileged documents.
Relevant to the issue before this Court, however, Deane J at page 81 said:
"In particular, it is unnecessary for present purposes to seek to identify the minimum academic or practical qualification which must be held by a "salaried legal adviser" before the confidentiality of his or her professional legal advice will enjoy the protection of the privilege since it has not been suggested that any officer of the Attorney General's Department whose advice is involved in the present case would fail to satisfy any such minimum academic or practical qualification. It would, however, seem that Lord Denning's statement that salaried legal advisers are regarded by the law 'as in every respect in the same position as those who practice on their own account' with the 'only difference ... they act for one client only, and not for several clients' would not be true of this country unless one restricted the category to persons who, in addition to any academic or other practical qualifications, were listed on a roll of current practitioners, held a current practicing certificate, or worked under the supervision of such a (82) person. I would add that the conclusion that legal professional privilege extends to protect the confidentiality of advice given by appropriately qualified salaried legal advisers makes it unnecessary to consider whether, in any event, the whole Attorney General's Departments and its officers should, when providing professional legal advice to other branches of the executive government, be seen as acting in a role that is more akin to that of the independent professional firm than to that to the ordinary employed salaried lawyer."
At pages 95 and 96, Dawson J discussed similar issues as follows:
"... there is authority in this Court and elsewhere for the proposition that legal professional privilege may attach to communications passing between a salaried legal adviser and his employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client. For this reason the legal adviser must be qualified to practice law and, it seems, subject to the duty to observe professional standards and the liability to professional discipline; see Attorney General (NT) v Kearney; Wigmore on Evidence". (citations omitted)
At pages 99-100, his Honour said:
"The legal advice which a government receives in its capacity as a litigant or potential litigant is in no different position from legal advice received by the ordinary citizen. Confidential communications between a government in that capacity and its qualified legal advisers for the purpose of giving or receiving advice will be privileged whether or not the legal advisers are salaried officers, because they will be consulted in a professional capacity in relation to a professional matter and the communications will arise from the relationship of lawyer and client.
... As Lord Simon of Glydesdale observed in Waugh v British Railways Board [1980] AC 521 at page 536, 'this system of adversary forensic procedure with legal professional advice and representation demands that communications between lawyer and client should be confidential, since a lawyer is for the purpose of litigation merely the client's alter ego' ". (emphasis added)
These observations by Deane and Dawson JJ, whilst strictly obiter, suggest that a requirement for legal privilege to apply is that there is a qualified and practicing lawyer involved in the communications.
In his judgment in Carter v The Managing Partner, Northmore, Hale, Davy & Leake & Ors (1994-95) 183 CLR 121, Brennan J (as he then was) quoted from the joint judgment of Mason and Brennan JJ in Attorney General (NT) v Maurice (1986) 161 CLR 475 at 487, where their Honours stated the raison d'etre of the privilege to be based on:-
'... the need of laymen for professional assistance in the protection, enforcement or creation of their legal rights. They should have the benefit of that assistance, free of any restraint which fear of the disclosure of their communications with those advisers would impose'. (R v Bell; ex parte Lees (1980) 146 CLR 141 at 152, per Stephen J) When the privilege applies, it enables the client to keep the communication from disclosure and interferes with the public's 'right to every man's evidence': Corbett's Parliamentary History (1812), Volume 12, page 675. Because of this conflict between the public interest in ensuring the availability of all relevant evidence in a particular case and the public interest in the administration of justice through effective legal representation, the privilege is confined within strict limits; Grant v Downs (1976) 135 CLR 674 at 685, per Stephen, Mason and Murphy JJ". (emphasis added)
The potential need of laymen for assistance as referred to in this paragraph, applies whether or not a person consults a qualified and practicing lawyer for advice or whether they consult their union for advice. Additionally, the seeking of such advice, if it is known that this can be disclosed, could create the fear referred to in this passage. However, the passage also refers to the fact that the privilege is confined within strict limits. Whether the limits of the privilege include legal advice provided by an industrial officer at a union, is the present matter under consideration.
Deane J at page 133 of the report in Carter said, omitting case references:
"while the adversarial system remains, however, legal professional privilege is of fundamental importance in the administration of justice. It 'promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline'. It plays an essential role in protecting and preserving the rights, dignity and freedom of the ordinary citizen - particularly the weak, the unintelligent and the ill informed citizen - under the law".
Prima facie it would seem that including the documents under consideration within legal privilege would promote the same public interests as referred to in the above paragraph.
In his judgment in Carter, McHugh J at page 160 referred to the fact that legal privilege protected communications that seek or give legal advice in cases where no litigation is pending or contemplated. His Honour said that therefore the "rationale" that the doctrine is necessary for the proper functioning of the legal system or the perfect administration of justice hardly seems applicable to non-litigious communications between legal adviser and client unless the concepts of the legal system and the administration of justice are given extended and artificial meanings.
At page 161 his Honour said, omitting footnotes, that:
"Now that this Court has held that legal professional privilege is not a rule of evidence but a substantive rule of law, the best explanation of the doctrine is that it is 'a practical guarantee of fundamental, constitutional or human rights'. By protecting the confidentiality of communications between lawyer and client, the doctrine protects the rights and privacy of persons including corporations by ensuring unreserved freedom of communications with professional lawyers who can advise them of their rights under the law and, where necessary, take action on their behalf to defend or enforce those rights. The doctrine is a natural, if not necessary, corollary of the rule of law and a potent force for ensuring that the equal protection of the law is a reality". (emphasis added)
The part in quotation marks from this paragraph is from the judgment in AM&S Europe Ltd v Commissioner of European Committees [1983] QB 878 at 841. In this paragraph, his Honour clearly refers to the confidentiality protecting communications with a "professional lawyer". However, it could be argued that the "human rights" to which his Honour refers would be also enhanced by the privilege including the documents involved in this application.
In a similar vein, at page 163, McHugh J said that:
"If a person has a fundamental human right to obtain legal advice secure in the knowledge that what passes between the lawyer and that person is forever safeguarded from disclosure, the suggested exception [in the case before the Court] impairs that right. In many cases, adoption of the exception would have serious consequences for a person seeking legal advice and assistance". (emphasis added)
In Carter, the exception that was submitted to be applicable was documents which may assist the defence of a person accused in serious criminal proceedings. The last quoted passage from his Honour's judgment again refers to a "lawyer". It is not entirely clear whether this was intended to convey a restriction or limitation on the privilege or whether the reference to a lawyer simply occurred because the facts of the case before the Court clearly involved a lawyer. The reference to "professional lawyers" earlier in his Honour's judgment, at page 161 and quoted above, suggests the former.
In judgments of other members of the High Court in other cases it has been stated, albeit strictly obiter, that for the privilege to apply, there must be a legal practitioner. For example, in Attorney General (NT) v Kearney (1985) 158 CLR 500 at 510, Gibbs CJ said:
"Advice will not be privileged if a legal adviser gives it in some other capacity (eg. as an officer of a non legal department) and will be privileged only if the lawyer who gives it has been admitted to practice and (I incline to think) remains subject to the duty to observe professional standards and the liability to professional discipline. However, these matters were not explored in argument before us."
In Attorney General (NT) v Maurice (1986) 161 CLR 475 at 480, Gibbs CJ said:
"The rule which recognises legal professional privilege goes back at least to the time of Elizabeth I (see Wigmore on Evidence) McNaughton rev. 1961 (Volume VIII, paragraph 2290) but that does not mean that it is archaic, technical or outmoded. Without the privilege, no-one could safely consult a legal practitioner and the administration of justice in accordance with the adversary system which prevails at common law would be greatly impeded or even rendered impossible". (emphasis added)
At page 487 of Attorney General (NT) v Maurice is the part of the judgment of Mason and Brennan JJ which was quoted in the judgment of Brennan J in Carter and which is quoted above.
In Attorney General (NT) v Maurice, at page 490, Deane J said in opening his judgment that:
"It is a substantive general principle of the common law and not a mere rule of evidence that, subject to defined qualifications and exceptions, a person is entitled to preserve the confidentiality of confidential statements and other materials which have been made or brought into existence for the sole purpose of his or her seeking or being furnished with legal advice by a practicing lawyer or for the sole purpose of preparing for existing or contemplated judicial or quasi judicial proceedings." (emphasis added)
In the sentences that follow this quotation, his Honour refers to communications between the "citizen" and his or her "lawyer".
In Baker v Campbell (1983) 153 CLR 52 at page 128, Dawson J said:
"Whilst legal professional privilege was originally confined to the maintenance of confidence pursuant to a contractual duty which arises out of a professional relationship, it is now established that its justification is to be found in the fact that the proper functioning of our legal system depends upon a freedom of communication between legal advisers and their clients which would not exist if either could be compelled to disclose what passed between them for the purpose of giving advice. This is why the privilege does not extend to communications arising out of other confidential relationships such as those of doctor and patient, priest and penitent or accountant and client. See D v NSPCC [1978] AC 171 at pages 238-39. The restriction of the privilege to the legal profession serves to emphasise that the relationship between a client and his legal adviser has a special significance because it is part of the functioning of the law itself. Communications which establish and arise out of that relationship are of their very nature of legal significance, something which would be coincidental in the case of other confidential relationships. It has been found necessary that professional guidance in the complex processes of the law should be uninhibited by the possibility that what is said to enable advice to be sought or given might later be used against the person seeking the advice." (emphasis added)

At page 130 his Honour said:
"Speaking for myself, and with the greatest of respect, I should have thought it evident that if communications between legal advisers and their clients were subject to compulsory disclosure in litigation, civil or criminal, there would be a restriction, serious in many cases, upon the freedom with which advice or representation could be given or sought. If a client cannot seek advice from his legal adviser confident that he is not acting to his disadvantage in doing so, then his lack of confidence is likely to be reflected in the instructions he gives, the advice he is given and ultimately in the legal process of which the advice forms part."
These paragraphs encapsulate some of the dilemmas before the Court. Dawson J specifically states that the privilege attaches to communications with the "legal profession". However, a potential applicant before this Court may well seek advice from an industrial officer for the purpose of obtaining guidance about the law on unlawful termination of employment. Such a person would, if communications and advice in that context are not privileged, have restrictions upon their freedom to seek advice or representation from such persons, as referred to by Dawson J at page 130.
Section 469(7) of the Industrial Relations Act states that a party before the Court may be represented by a member, officer or employee of an organisation of which the party is a member. The organisation referred to in the subsection is an organisation registered under the Act (Section 4 of the Act and see also Section 188). This may include an association of which some or all the members are employees who are capable of being engaged in an industrial dispute; s 188(1)(b). This includes a union. Therefore the Industrial Relations Act clearly envisages a person being represented by their union before the Court.
However, as has been seen, there are a number of expressions of opinion from members of the High Court, which clearly state that legal privilege is confined to advice provided by a person who is at least a qualified legal practitioner. And this is so despite the fact that the rationale of legal privilege has been expressed somewhat differently by different members of the Court. There was no suggestion in this case that Mr Purtill is a legal practitioner. Therefore, if I were to follow the statements by the members of the High Court I have quoted, no privilege would attach to the advice given by Mr Purtill, or the request for that advice from Mrs Locke.

THE COMMONWEALTH EVIDENCE ACT

As stated earlier in these reasons, the issue of an order for production of the document is governed by the Industrial Relations Court Rules. However, whether the document could be used in evidence is governed by the Evidence Act (Commonwealth) 1995. Section 118 of the Evidence Act concerns the question of adducing evidence of legal advice.
This section states that evidence is not to be adduced if, on objection by a client, the Court finds that adducing the evidence would result in a disclosure of:
(a)a confidential communication made between the client and a lawyer; or
(b)a confidential communication made between two or more lawyers acting for the client; or
(c)the contents of a confidential document (whether delivered or not) prepared by the client or a lawyer;
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
Section 117 defines a confidential document to mean a document prepared in such circumstances that, when it was prepared:
(a)the person who made it; or
(b)the person to whom it was made;
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
In the same section "lawyer" is said to include an employee or agent of a lawyer. This is an inclusive definition. However, in the Dictionary to the Evidence Act, "lawyer" is defined to mean "a barrister or solicitor". The definition therefore excludes an industrial officer or advocate who is not at least legally qualified and probably practicing as a legal practitioner. This being the case, documents from a client or his agent to and from a non lawyer industrial officer, even a confidential document, is not protected by the privilege which Section 118 of the Evidence Act provides.
In the notes to the Commonwealth Evidence Act which are contained in the Attorney General's Department publication Commonwealth Evidence Law, paragraph [118.11] it states that the "privilege in Section 118 does not extend to documents prepared by third parties (that is, persons other than the client or the lawyer) for the purpose of legal advice being obtained (cf. Section 119(b))".
Section 119 provides that evidence is not to be adduced if, on objection by a client, the Court finds that adducing the evidence would result in the disclosure of:
(a)a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made: or
(b)the contents of a confidential document (whether delivered or not) that was prepared;
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the Court) or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
In the notes to Section 119 in the Attorney General's Department publication referred to above at [119.3] it says that, unlike Section 118, the privilege under Section 119 extends to confidential communications between the client, or his or her lawyer, and a third party (as well as communications between the client and lawyer).
Section 117 defines client to include an agent of a client. In the case before the Court, Mrs Locke could be seen to be the agent of the client in obtaining the advice from Mr Purtill. As stated above, the definition of confidential document is set out in Section 117. I consider that both documents in this case meet this definition. This is because I think that both Mrs Locke and Mr Purtill would be under an implied obligation, albeit not necessarily arising under the law, to not disclose the contents of the documents, as they discussed the legal rights of a member of the union of which they were officers and when they were acting on the member's behalf.
Section 119 uses the phrase "professional legal services". This is not defined in Section 117 or the Dictionary to the Evidence Act and is a different expression from those used in Section 118. The notes in the publication Commonwealth Evidence Law referred to above, offer no assistance in understanding the reason for the use of this expression.
In Odgers, Uniform Evidence Law, Federation Press, 1995 at paragraph [119.3] it states that:
"Professional legal services, would include legal advice and representation, but not accounting, executive or administrative activities. It is the intention of the client or lawyer at the time of the making of the communication or the preparation of the document which is determinative. Thus, a document will not be privileged merely because it was handed to a lawyer for the purpose of obtaining professional legal services. Equally, if privilege attaches to a document prepared for the prescribed purpose, it does not matter whether it was actually used for that purpose. In the case of third party communications, the relevant motive is that of the client or lawyer in obtaining the communication. Under the common law, proceedings are 'anticipated or pending' when they are actually contemplated - a mere apprehension of possible litigation is not sufficient". (footnote references omitted)
This commentary is not of direct assistance although it does refer to a "lawyer" being involved in the communications. In the absence of some clear legislative indication to the contrary, I do not think that it could be properly said that the advice of an industrial officer meets the description of a client being provided with "professional legal services". (emphasis added)
Section 120 of the Evidence Act concerns the situation where a party is not represented in proceedings by a lawyer. This section has no relevance to the present case as the applicant is now represented.
Therefore, I do not think that the Evidence Act enacts a privilege which would exclude the adducing of evidence by reference to or tender of the documents in question in this case. Therefore, the evidence is not inadmissible pursuant to Section 134 of the Evidence Act.
If the documents in question were protected by the common law of legal privilege which is applicable to an application for production, this would mean that whilst the documents would have been privileged from production at an interlocutory stage or during trial, there would nevertheless be no prohibition on the adducing of evidence of the contents of the documents at trial, because the documents are not protected by the privileges set out in Sections 118-120 of the Evidence Act. This would, I think, be an odd result and ought to be avoided if possible. This can occur only if privilege does not attach to the documents of which an order for production is sought.
It seems therefore that from the statements made by the members of the High Court referred to above and for consistency with the contents of the Evidence Act, I am driven to the conclusion that legal privilege does not apply to the documents in question in this case. If this is so, what are the reasons and ramifications for and of such a rule of law?
LEGAL PRIVILEGE AND THE REQUIREMENT OF A LEGAL PRACTITIONER - REASONS AND RAMIFICATIONS
(1)The judgments of members of the High Court from which paragraphs have been quoted earlier refer to issues like:
(a)the "need" to restrict the privilege because it is an exception to the public interest in disclosure of evidence (Stephen, Mason and Murphy JJ in Grant v Downs);
(b)the fundamental human right which the privilege protects being the communication between layman and lawyer and not some other person (McHugh J sub silento in Carter v NHDL);
(c)the lawyer having a duty to observe professional standards and being liable to professional discipline (Gibbs CJ in Attorney General (NT) v Kearney); and
(d)the justification of legal privilege is that the proper functioning of the legal system depends on a freedom of communication between clients and lawyers and other confidential relationships do not have the "special significance" that the lawyer and client do as being "part of the functioning of the law itself" (Dawson J in Baker v Campbell).
(2)In McNicol, Law of Privilege, cited earlier, at pages 3-4, the learned author says that "A professional privilege similar to that covering confidential communications between client and legal adviser in the course of obtaining advice has never been extended to other relationships despite claims in the past for special common law protection to be given to [other] confidential communications ... There are, however, some who argue that in more recent times society has been developing in such a way that accountants, merchant bankers and others will be undertaking the kind of specialised work which in the past was only done by lawyers and that these other types of professions can today also 'claim credit for certain privileges in circumstances akin to that of the relationship of solicitor and client' ". The part in quotation marks of this paragraph is from R Baxt, 'A Matter of Privilege' (1989) 60 Chartered Accountant 34 & 35. It can also be said that industrial officers perform a specialised work type, particularly in relation to unlawful termination claims, which in the past may have traditionally been done by lawyers. Such industrial officers can exercise the specifically given rights of audience in some tribunals and courts, and in particular before the Industrial Relations Court of Australia.
(3)However, McNicol at page 5 states that "It is respectfully submitted, however, that it is dangerous to analogise from the lawyer-client relationship to other professional or confidential relationships. A lawyer's office has been described as the 'ante room of the court room' and all barristers and solicitors under their code of ethics are regarded as officers of the court within their respective jurisdictions. The lawyer-client relationship is so inextricably woven into the fabric of the legal system itself that its position in terms of privilege protection should be regarded as unique". The quoted part of this passage is from the Australian Law Reform Commission Report No. 26 (Interim) Evidence (1985), Volume 1, paragraph 916, page 513. McNicol says in the footnote to see also Baker v Campbell per Dawson J.
(4)As the passage from McNicol quoted immediately above indicates, there are legal and ethical constraints upon legal practitioners which do not proscribe the conduct of industrial advocates. This may be a reason for limiting the extent of the privilege in question and is further discussed later in these reasons.
For example, legal practitioners in Western Australia are subject to the requirements of the Legal Practitioners' Act (WA) 1893 (as amended) where a disciplinary tribunal set up by that Act has jurisdiction to make findings and impose penalties upon practitioners who have been guilty of illegal conduct, unprofessional conduct, neglect or undue delay in the course of practice of the law. In addition, there are the Professional Conduct Rules and Bar Association Rules which are applicable to legal practitioners in Western Australia. None of these controls exist over the conduct of an industrial officer. Ordinarily, only a legal practitioner in Western Australia can directly or indirectly perform work in connection with the administration of law for remuneration; see Sections 77 and 78 of the Legal Practitioners' Act.
(5)It is sometimes the case that an applicant under Section 170EA of the Act, appears before this Court represented by an industrial officer of a union. The sections of the Industrial Relations Act referred to earlier permit such representation. Given this, it is obvious that at times union members will first consult their union as to whether they have any grounds for making an application under Section 170EA of the Act. Many, if not most unions, will have an industrial officer who can provide advice on such issues. If an application is made, the union member may, as stated, sometimes be represented by an industrial officer from the union, although at other times the union member may instruct a solicitor or counsel to represent them. In such circumstances, should this Court, at least, find that legal privilege is extended to industrial officers of a union that provide legal advice to the member? Sir John Donaldson in the Grazebrook decision at page 871 of the report, as quoted above, said that privilege should attach to communications with industrial advocates when "litigation is in hand". One could ask whether there is any sensible distinction between that situation and a person seeking legal advice when they are specifically contemplating making an application to this Court for an unlawful termination claim from a union officer who would have audience to appear before the Court.
(6)As this analysis shows, an industrial officer in this Court can be "part of the functioning of the law" (to quote Dawson J in Baker v Campbell) to a greater extent than other people who although having confidential relationships with clients do not have privileged communications at common law; eg doctors, priests, accountants. In the instance of industrial officers in the present context, there is a potentially direct nexus between the legal advice a person may seek and obtain from the industrial officer and the presentation of an application before this Court.
(7)If there is no privilege attaching to the advice given by Mr Purtill in this case, it would be easy enough for unions to put into place a method which would allow advice from an industrial officer to be privileged. For example, Mrs Locke may have a standing arrangement with a solicitor to give advice to FSU members who seek assistance from the union in potential unlawful termination cases. However, part of the arrangement with the solicitor would be that he/she first obtain the opinion of Mr Purtill. In such a scenario, there is no doubt that, assuming it was a genuine arrangement, the opinion from Mr Purtill as given to the solicitor for the purpose of further advising the union member, would be protected by legal privilege. This would be so even if the solicitor considered Mr Purtill's opinion and wrote to the applicant genuinely saying that he/she had considered the advice from Mr Purtill and he/she agreed with it. It is questionable whether the law is advanced by denying the existence of a privilege attaching to the documents in question in this case if privilege could so easily be afforded to the documents by a method like that as set out above. Some may argue that if the privilege could so easily attach if the above method were employed, there is no reason to include within the privilege legal advice provided by an industrial officer of a union. Others would argue that it is not sensible for the privilege to not so include such advice if the mere fact that it were provided to a client by the conduit of a solicitor with a covering letter would make it privileged.
SHOULD LEGAL PRIVILEGE INCLUDE LEGAL ADVICE GIVEN BY AN INDUSTRIAL OFFICER OF A UNION
The main arguments in favour of including legal advice provided by an industrial officer within legal privilege would seem, in the current context, to be:
(1)The proper role that unions have in advising members as to their rights, particularly in the context of termination of employment.
(2)The role industrial officers may play in representing union members in applications before the Court under Section 170EA of the Act. This is recognised by the Act, as set out above.
(3)Industrial officers who have the roles referred to in 1. and 2. above should build up a deal of expertise in the area of unlawful termination of employment claims and therefore be able to provide knowledgeable advice to members on the prospects of success of their claims.
(4)The rationale of legal privilege, as expressed in the paragraphs from the High Court members' judgments quoted above, is the proper administration of justice or the fundamental human right to obtain legal advice confident in the knowledge that such communications are privileged. It is arguable that both rationale mentioned apply to advice from an industrial officer given their rights of audience in this Court; and that the second rationale would be undermined if documented legal advice provided by an industrial officer could be ordered to be produced.
(5)If legal privilege does not cover advice of the type in this case, from an industrial officer to union member, this may undermine the role which unions arguably can and should properly have in giving their members advice on unlawful termination claims. Solicitors would need to be engaged for the privilege to apply. This could decrease the role of the union in giving the advice and increase the cost of obtaining advice; to be borne either by the union or the member. This seems opposed to the contemporary precept of "access to justice".
(6)Although, as stated earlier, the industrial officer is not subject to the legal and ethical constraints of the solicitor, one may question whether this is a reason for denying privilege to legal advice provided by the industrial officer. The fact that there are less statutory and professional controls over the conduct of industrial officers than lawyers may not necessarily affect the "human right" of obtaining legal advice referred to by McHugh J in Carter, although it does mean there is a real distinction between the industrial officer and solicitor in their roles in the administration of justice. Whether this difference is significant enough to warrant the exclusion of legal advice provided by an industrial officer from legal privilege is a separate question. This question has at least two aspects; the first is the question of the lawyer's expertise, the second relates to ethics and responsibilities. If legal advice given by union industrial officers is not privileged then this could "encourage" members or unions to seek advice from solicitors. If this is a good thing, one reason for it would be the professional qualifications which a solicitor possesses which the legally non qualified industrial officer does not. The solicitor possesses a stamp of qualification from an educational institution which the industrial officer does not. This stamp gives the solicitor part of his/her authority to provide legal advice to the public. Further, the legally qualified person who is admitted to practice by their state supreme court and in the federal courts must have attained and maintained the requisite ethical standards of a legal practitioner. The industrial officer does not have the qualification from the educational institution. However, particularly in contemporary times of legal specialisation, it would be naive to think that all solicitors would be better "qualified" than industrial officers to give legal advice on unlawful termination claims; both from the viewpoint of knowledge of the legislation and its practical implementation in the workplace and by the courts.
As stated, the solicitor not only has the qualification from an educational institution but must also have attained and maintained ethical standards. Their legal practice is proscribed (in Western Australia) by the Legal Practitioners' Act (WA) 1893 (as amended) and professional conduct rules. The relationship between solicitor and client "is one of the most important fiduciary relationships known to the law"; Mallesons v KPMG Peat Marwick and Others (1991) 4 WAR 357 at 361 per Ipp J, citing Re Van Laun; Ex parte Chatterton (1907) 2 EB 23 at 29; Law Society (NSW) v Harvey (1976) 2 NSWLR 154 at 169-170. The solicitor is therefore subject to the constraints that apply to a fiduciary; see Mallesons v KPMG, page 362.
If a solicitor, for example, breached the confidence reposed in him by a client then he could face disciplinary action (in WA) from the Legal Practice Board. An industrial officer who did the same would not face such action; although they may face civil consequences at the suit of the union member. However, there would be no legal reason why they could not continue to be an industrial officer, either at the same union or another. The ultimate sanction for the solicitor is to be struck off from the roll of legal practitioners in the state. This distinction between the solicitor and industrial officer is real and substantial; but is it such to deny privilege to advice given by the latter?
It could be seen by some as unduly paternalistic for the courts to in effect say that a person must see a solicitor rather than an industrial officer because the legal controls over the former are more acute. This question raises issues which are involved in the debate about "access to justice"; for example, should clients be protected from the potential misdeeds of non lawyers who are less subject to legal controls or is this just an outmoded view which serves to protect the monopoly of the legal profession.
On the other hand, it may be, for example, that it is only when the person giving legal advice is a legal practitioner subject to the sort of controls referred to above, that a person is guaranteed the human right which McHugh J recognises in Carter.
CONCLUSION ON LEGAL PRIVILEGE

As interesting and important as these issues and arguments are, in my opinion I am constrained by the parts of the judgments of the members of the High Court quoted earlier and the need for consistency with the provisions of the Evidence Act that I have referred to, and must find that the documents in question are not protected by legal privilege. Although I have said with respect to some of the relevant paragraphs from High Court judgments that they are strictly obiter, there is a blurring of the distinction between obiter and ratio, when one is considering a judgment of a justice of the High Court.
I also think that it would not be open to me, for similar reasons, to extend legal privilege or recognise a new privilege to protect the type of communications in question. Whether this should occur is a matter which will hopefully be considered in the near future by either the Judge(s) of this Court, the High Court or the legislature. Ultimately it may well be a matter for the legislature.
In my opinion, however, the law as it stands is that to be protected by privilege, legal advice must be given by at least a legally qualified person and probably a person admitted to practice as a legal practitioner with a current practicing certificate; Gibbs CJ in Attorney General (NT) v Kearney, page 510; Deane J in Attorney Gneral v Maurice, page 490; Dawson J in Baker v Campbell, page 128; McHugh in Carter v Managing Partner NHDL, page 161; Deane J and Dawson J in Waterford v the Commonwealth, pages 81 and 95/96, 99/100 respectively.

THE DISCRETION TO ORDER PRODUCTION

This is not, however, the end of the matter. Order 15 Rule 11(1) says that the Court "may order the party to produce the document for inspection". The use of the word "may" is indicative of a discretion in the Court. The next question is whether I should in my discretion order production of the documents. I would not think it appropriate to fail to order production of the documents merely because although the documents are not covered by legal professional privilege, they would have been covered by such a privilege had Mr Purtill been a qualified legal practitioner. This, in my view, would be to inappropriately subvert the law in relation to privilege as I have found it to be.
However, I think I can take into account whether there is any legitimate forensic use that can be made by the respondent of the documents in question. When I first read the documents in question I did not consider that there was any legitimate forensic use that the respondent could make of the documents. The documents were first read by me at the luncheon adjournment on the first day of the hearing and prior to the point of the cross-examination where the respondent hoped to make use of the documents. Mr Kemp, in his submissions, did not clearly articulate to me the proposed use that he wished to make of the documents.
However, this became clear in his cross-examination of the applicant after the luncheon adjournment.
A document that was put to the applicant by Mr Kemp was a letter from the respondent's solicitors to the applicant in which the question of costs is addressed. The letter was dated 8 March 1996 and appears at pages 96 and 97 of the agreed bundle of documents which by consent were tendered as Exhibit 1. On page 2 of the letter it reads:
"The Industrial Relations Court of Australia is not usually a Court in which costs are awarded. However, Section 347(1) of the Industrial Relations Act 1988 allows the Court to make an order of costs against an applicant if the applicant institutes the proceedings vexatiously or without reasonable cause.
According to our instructions, there is evidence that you sought the advice of your union, the FSU, prior to instituting these proceedings and were advised by that union that you did not have a cause of complaint against the Commonwealth Bank of Australia in all the circumstances. Notwithstanding that advice, you proceeded with this application.
Our client believes that this demonstrates that you have instituted the proceedings vexatiously or without reasonable cause.
We are accordingly notifying you that, should you proceed with this application, we have been instructed to make an application to the Court that you be ordered to pay our client's costs."
The reference in the letter to the "evidence" that the advice of the union was sought, was put to the applicant in cross-examination. Mr Kemp put to the applicant that he had told another employee with the bank, a Mr David Challenor, that "the Sydney office of the union had responded that they did not think that there was a strong enough case to proceed".
The following exchange took place between Mr Kemp and the applicant:
Overall you said to him [Challenor] that the union had responded, that they would not take up the case on your behalf because there was not a strong enough case to proceed. That is the essence? - No. No.
Well, what did you say to David Challenor? - They had said that they didn't want to pursue it but it wasn't that it wasn't - not a winnable case, it was that it would be hard to prove one way or the other. There were lots of, like, grey areas in there. So, yes, it wasn't, "no, you've got no grounds for wrongful dismissal", they're just saying that on the information they had it was ---
Now that would have been about the middle of November, would it not - Quite possibly.
So, by the middle of November you were aware that people had reservations about your case - The people over east had reservations. The local secretary didn't have reservations.
Okay, but yet you still proceeded - Yes.
(Transcript pages 130-131)
It now seems to me that in light of the issue about costs and the line of the cross-examination that proceeded, there is a legitimate forensic purpose in the applicant being ordered to produce the documents to the respondent. This legitimate forensic use was, as I have said, not apparent when I ordered that it would be inappropriate for the applicant to be ordered to produce the documents to the respondent after the luncheon adjournment on the first day of the hearing of the case.

THE TIMING OF THE LEGITIMATE FORENSIC PURPOSE AND HOW TO PROCEED

The legitimate forensic purpose will only arise in relation to any application that may be made by the respondent to the Court for costs. Such an application would obviously be predicated upon the respondent being successful in defending the application.
I am now of the opinion that I should reconsider the application for the production of the two documents in question. Mr Kemp closed his cross-examination of the applicant at the conclusion of the hearing on 21 March 1996. The applicant's re-examination was adjourned to 6 May 1996 when the hearing resumes. I think that, on the question of costs, if it so arises, Mr Kemp ought to have the opportunity of cross-examining the applicant about the documents in question.
I will seek further submissions from the parties on the orders that should flow from this judgment. The submissions I seek will include submissions on whether I should now simply order production and allow further cross examination on 6 May 1996 or whether production should only be ordered if the respondent is successful in their defence of the application, on the understanding that I would be minded to order that the respondent be given leave to further cross examine the applicant on the issue of costs.
I will take steps to have the matter listed prior to 6 May 1996 so that my reasons can be published and submissions received upon the appropriate course to take in light of my observations as set out above. In addition, the documents in question will formally be returned to the applicant's counsel at such time.
I certify that this and the preceding forty-one (41) pages
are a true copy of the reasons for decision of
Judicial Registrar Ritter as recorded in the transcript
and revised by the Judicial Registrar
Associate:
Dated:
APPEARANCES
Counsel appearing for the applicant:                   Mr A Lynn
Solicitors for the applicant:  Andrew Lynn
Counsel appearing for the respondent:               Mr S Kemp
Solicitors for the respondent  Corrs Chambers Westgarth
Date of Hearing:  23 March
Date of Judgment:  1 May 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1022 of 1996
B E T W E E N:
Jay Bradley WOOD
           Applicant
A N D:
COMMONWEALTH BANK OF AUSTRALIA
           Respondent
COURT:           RITTER JR
PLACE:           PERTH
DATE:              1 MAY 1996
CORRIGENDA TO REASONS FOR DECISION
DELIVERED ON 1 MAY 1996
On page 3, line 5, of this judgment, please change "Gavin Purtill" to "Garrett Purtill".
I certify that this is a true copy of corrigenda made to the judgment of Judicial Registrar Ritter.
Associate:
Dated:   13 May 1996

[1996] IRCA 191

01 May 1996