Published 27 June 2016
An appeal to gain access to documents was denied after the Fair Work Commission ruled the documents were protected by legal professional privilege and this privilege had not been waived.
Mr Kirkman made an appeal against the Commissioner’s decision to deny him access to several documents regarding a workplace investigation report, which Kirkman claimed were relevant to his unfair dismissal application. DP World claimed these documents could not be given to Kirkman on the basis of legal profession privilege.
Legal Professional Privilege
For legal professional privilege to apply, the dominant purpose for bringing the documents into existence must have been to obtain legal advice. The Commission noted two important aspects of the case. Firstly, the letter of engagement sent by DP World’s solicitors to Mr Gunzburg (engaged by the solicitors to provide a factual report on alleged bullying conduct) indicated that the purpose of the investigation was to assist the solicitors to provide legal advice to DP World. Secondly, Mr Gunzburg’s final email to the solicitors was marked privileged and confidential.
Further, communication was exclusively between Gunzburg and the solicitors, with only one email copied to DP World. DP World stated that communication with or any report produced by Gunzburg would not be disclosed. Gunzburg stated his investigation was not for the purpose of any other proceedings.
The Commission noted that “the use to which a document is put after it is brought into existence is immaterial” and it is only relevant what the purpose was at the time the document was made.
In referencing these facts, the Commission ruled the dominant purpose at the time the relevant documents were created was to assist in providing legal advice and therefore the documents were privileged.
The Commission said the fact that the report included allegations against the Applicant did not mean it was a report that related to his eventual termination of employment. It was further noted that there was approximately 5 months between the report being prepared and the dismissal.
Waiving Legal Professional Privilege
It was noted that legal professional privilege is lost if the substance of the document is disclosed with the express or implied consent of the client.
Kirkman claimed legal profession privilege had been waived as DP World disclosed aspects of the report in a meeting on 30 June 2014. The Commission found the purpose of the partial disclose was to allow Kirkman an opportunity to respond and enable DP World to determine whether the alleged behaviour occurred. The disclosure was not made in an effort “to achieve some forensic advantage”. As such, the Commission ruled privilege was not waived.
The documents in question were protected by privilege and this privilege was not waived. Consequently, Kirkman was denied access to these documents.