Legal Professional; Privilege and Occupational Health and Safety

Sue Bottrell, Elizabeth Kenny and Mark Waters
Piper Alderman Lawyers - 2009

In Inspector Anthony Nicholson (WorkCover Authority of New South Wales) v Waco Kwikform Limited the NSW Industrial Relations Commission found that an employer's incident investigation was protected by legal professional privilege. Following an incident the companies lawyers requested that an incident investigation be completed and the report provided to them.

To qualify for legal professional privilege a communication must be either, confidential communication between a client and their legal representative or, be for the dominant purpose of seeking legal advice. In this case Freehills solicitors were engaged by Waco to provide advice about an incident which had occurred and which had resulted in the death of an employee. Freehills subsequently requested that Waco produce several documents to "assist them in providing legal advice" in relation to the incident.
The prosecutor argued that the documents were not produced for the dominant purpose of seeking legal advice but rather for the purpose of conforming with Waco's internal procedures requiring that all accident and injuries be reported, detecting if there were any faults in the system of work at the time of the incident and to ascertain if there had been any breaches of Waco's policies or procedures.

There was no evidence of these other purposes but the prosecution argued that the purposes were common sense and logic. The prosecution sought to rely on the judgment of Gleeson CJ, Gaudron and Gummow JJ in Esso, citing Grant v Downs where it was agreed that there may be a multiplicity of purposes for producing a report investigating an incident,and in that case it was not agreed that the seeking of legal advice was the dominant, let alone sole, purpose of bringing the report into existence.

Where there is a multiplicity of purposes it is important to look both objectively at the circumstances surrounding the production of the report and the subjective intention of the person who brings the document into existence or who commissions the production of the document.

It is clear from objective evidence that litigation was anticipated in relation to the incident, both by the organisation when engaging Freehills to provide legal advice, and by Freehills as evidenced by correspondence to Waco from Freehills stating that the incident may give rise to proceedings under the OHS Act 2000 (NSW). It is also clear from objective evidence that the It is also clear that Freehills purpose in commissioning the report was to enable them to provide advice as to the legal aspects of the matter, again as evidenced by their correspondence to Waco.

The court considered the argument that the documents were produced for multiple purposes, one of which was to conform to internal Waco procedures. This was unable to be sustained in the absence of other evidence. and as was similarly found by Batt J in Mitisubishi Electrical Australia Pty Ltd v Victorian WorkCover Authority it is unlikely that concerns of compliance with internal policies and procedures would be of concern to Freehills.

In light of this the appeal was allowed and the claim of legal professional privilege was upheld.