Andrew Douglas: Let me go to our main topic, okay? We’ve talked about legal professional privilege, and I thought we’d start off with Hitchcock in the state of Queensland. Not a difficult case to understand in a lot of ways. This was a case before the Queensland Office of Industrial Relations. There’d been a bit of disciplinary process. There’d been legal advice that had been given in the middle of it.

There was a briefing note that had been created by the Queensland Industrial Relations Office, and there was bits and pieces around it. And what the court did is it looked and said, “Okay, so these notes were created by lawyers for people’s use. The lawyers were engaged to provide advice based on what had occurred.” So this is not so much… You know, this is after investigator’s report.

So lawyers had engaged an investigator, then advice had been given. And it was that advice that found its way into some briefing notes that this person asked for. And the court said, “No, there’s been no way. These were people who needed that advice based on the investigator’s report, so privilege is not waived.” So it’s a really simple case. Now, we want to talk more about waiver, ’cause waiver’s important.

If you engage someone under legal… So Nina hires me under legal professional privilege, I give her some advice, but then she goes and shares it with Laura outside. Laura’s not part of the decision making. I’ve waived it. If I disclose in the broader public or another manner part of that advice, waive.

Nina Hoang: Yeah.

Andrew Douglas: Sometimes, in fact, if I say, “Look, we’ve made this decision because we’ve been advised by lawyers to do so,” that could be a waiver. And that’s such a common habit of people to say.

Nina Hoang: Really?

Andrew Douglas: Yeah, yeah.

Nina Hoang: I thought this case said that if the mere reference isn’t enough to waive?

Andrew Douglas: No, it’s got to be a connection to outcome. So if you say, “Look, we’ve been advised by lawyers that your conduct is such, and as a result of that we need to terminate you,” you’ve invalidated your own discretionary purpose and you’ve pushed back the decision making,

Nina Hoang: To the lawyers.

Andrew Douglas: to the lawyer at that stage.

Nina Hoang: I see.

Andrew Douglas: Yeah, so it’s got to be your decision making. So just be careful of that phrase.

Nina Hoang: Oh okay, so if it’s link

Andrew Douglas: Particularly if we look

Nina Hoang: to the outcome, yeah.

Andrew Douglas: at general protections or something like that, where it is subjective determination as subjective state of mind of the decision maker. If you make the lawyer the decision maker, then the facts and matters that were before the lawyer become relevant and the lawyer’s view becomes relevant and has to be defended. So, I thought it’s a good case because it’s just on the edge.

Nina Hoang: Yeah. I mean, that’s really interesting.

Andrew Douglas: Now the Association of Professional Engineers was another case pretty much on the same line. Two different things, one was a group of slides.

Nina Hoang: Yes.

Andrew Douglas: It was presented by a lawyer. The other was a file note that had been prepared.

Nina Hoang: Yeah, so this was like the union and the employer was trying to access these documents, yeah.

Andrew Douglas: Yeah. And at the end of it, the slide deck had been shown to a couple of people who were outside the level of responsibility.

Nina Hoang: Yeah, it was like to a huge group of members or something.

Andrew Douglas: Yeah, and as a result of that, privilege was waived. So it’s a classic waiver, but the file note, which was advising no waiver, privilege applied. And then we come to our final case of Tainsh and Wellner. Now, can I just say there’s an old case, which is called Balker, which is when a lawyer or somebody engaged by a lawyer provides both privileged and non-privileged advice in the one investigative report, okay?

Nina Hoang: In the one report?

Andrew Douglas: Yeah. Can I say, lawyers who aren’t experts in this commonly will give you their investigative report as advice. So they’ll say, “We’ve made the following findings. These are the reasons we made them, and these are our recommendations.” So they mixed law and fact. And in Balker, what happened is there was… By the way, when privilege is relied upon, you have to put in a yellow envelope, it goes up to the judge or a tribunal member who reads it on the base of the evidence and determines whether it goes into evidence or not.

Can you see how dumb this is? Because if you create a document that has two different uses in it, the person who’s making decision sees what you’ve said. That they can say they’re not going to be interested and they say privilege applies. It’s all too late, they’ve read it. And what Balker said is, “Yes, you can excise and show what is the evidence and findings you lied upon,” but my point about Balker as a case is it’s a bit late because the decision maker has seen it. In Tainsh, you’ve got to really, really simple case of an investigation that was being undertaken,

Nina Hoang: By a law firm,

Andrew Douglas: By a law firm, yeah.

Nina Hoang: who engaged, sorry, engaged the investigator underprivileged. Yeah.

Andrew Douglas: That’s right. And the question really was is, in respect to the advice that was given, was that privilege?

Nina Hoang: And the report, ’cause the employees were seeking copies of the report and it was found, no, that they were privileged. The fact that there were just findings that came out of the report didn’t make the whole report accessible to them.

Andrew Douglas: No, it didn’t. So this is sort of the edge of Balker. Can you see that? But can you once again see how dumb the process is?

Nina Hoang: Yeah.

Andrew Douglas: Because a sensible process would be for the employer to engage the investigator directly,

Nina Hoang: Yeah.

Andrew Douglas: to give findings and have privilege with the investigator to give recommendations to the lawyer. The two never meet. You don’t have ’em in the same document, and that’s the process that we undertake. And it’s a valid, it’s a legal process, but I warn you, and Tainsh is an example, what is it in “Ghostbusters”? Don’t mix the whatever it is? I can’t remember what is that.

Nina Hoang: I don’t remember either.

Andrew Douglas: But don’t get things mixed together because by the time the tribunal member or the judge sees it, it’s over, okay? So why don’t we go on and have a look at the case study ’cause that’s going to test this, isn’t it?

Nina Hoang: Yeah, so Prue was a Health and Safety Representative and union delegate for the logistics company Truck’n’Run, (TNR), at its Dandenong Lumber Yard and warehouse. She raised concerns about how timber was being loaded onto the new Dennison BW trailers. This process was new for TNR and involved handling 30 loads per day from the Dandenong site, following the recent acquisition of the adjoining Lumber Mill, purchased by TNR through a liquidator sale. Previously, they had only handled two to three small timber loads per day from that mill.

TNR required that timber be strapped together to form a solid pack, which then loaded onto the trailers using a forklift or crane. Prue argued that the crane method was unsafe and refused to carry it out. She advocated for placing the timber into crates before loading, stating that it would make loading and unloading by forklift easier and much safer when using a crane. She felt that the existing method was unreliable; and if one piece slipped, the entire load could fall.

TNR declined her proposal, citing an estimated $500,000 in additional capital costs. Instead, they conducted a risk assessment with an external expert and implemented administrative controls to reduce the risk. Prue was shown this risk assessment but conducted her own. She concluded that the controls, such as keeping people away from loading areas, did not adequately protect plant operators, other workers around the departing trucks, or the general public. This was her professional opinion.

After being directed to assist with TNR’s method, Prue refused and issued a Provisional Improvement Notice. Her conduct was then investigated by a safety consultancy firm engaged by TNR’s lawyers under Legal Professional Privilege. At her show cause meeting, Prue was presented with five bullet points under a heading titled “Findings.” In the bottom-right corner of the document, beneath the last point, appeared what seemed to be a page number six. The findings did not address the safety concerns Prue had raised.

Instead, they focused on the directive given to her and her refusal to comply. During the meeting, a union organiser presented TNR management with a social media post from the company’s internal Slack platform. The post, directed to the Senior Leadership Team, many of whom were not involved with the Lumber Mill or its safety operations, was from the OHS Manager.

It said they were within their rights to terminate Prue for failing to follow a directive, although there were some risks regarding the reasonableness of that directive. The union official requested access to the safety consultants report, the legal advice, and the letters of instruction, but TNR refused, citing privilege. Prue’s employment was then summarily terminated.

Andrew Douglas: Okay, so would the Union and Prue have a claim that the investigations and advice under Legal Professional Privilege were waived, and therefore could they gain access to it? What’s your thoughts on that?

Nina Hoang: Well, it was given to a whole lot of people and-

Andrew Douglas: Absolutely no doubt, there’s waiver.

Nina Hoang: Yeah.

Andrew Douglas: So there’s waiver of both because they’ve been provided to everybody. Secondly, the findings that were made were not findings, weren’t findings of fact relevant to the investigation, but rather were a critique of her, therefore, to understand why it waives privilege to the rest. So in other words, if I say, “Look, Nina was wrong for A, B, C, and D,” but I don’t explain any evidence and it sits inside that report,

Nina Hoang: Yeah, I see.

Andrew Douglas: I’m entitled to say there must be more of that report that I’m entitled to see.

Nina Hoang: Yeah.

Andrew Douglas: What a judge or tribunal member would do is read it and then decide which parts of the reports are and are not available. But the Slack one shows there is a real issue and one advice has been given on that says this is unlawful, bang.

Nina Hoang: So the decision maker was the lawyers ’cause it’s based on that.

Andrew Douglas: Yeah, yeah, yeah. Or even if the decision maker wasn’t, they have said that the lawyers said this is unreasonable and we don’t know the factual basis upon which any of it has occurred. So you’ve got a really classic waiver. What claims could Prue bring and what are the chance of success and what remedies and damages could be awarded?

Nina Hoang: Well, she could claim probably unfair dismissal, couldn’t she?

Andrew Douglas: Well, she definitely have unfair dismissal. She’d certainly have a general protections claim, wouldn’t she? Yeah, I don’t think there’s any doubt. I mean, the process as far as was there a valid reason? Potentially, so remember valid reason’s a low threshold. Was the process-

Nina Hoang: Well, was there a valid reason though?

Andrew Douglas: Well, the valid reason would be, so remember, valid reason doesn’t have to be correct at the end of the day. It has to be a valid basis upon which termination could occur. Breach of safety direction would be that-

Nina Hoang: But it wasn’t a valid and reasonable direction to do something that’s unsafe.

Andrew Douglas: Well, that’s the argument is you’ve got a valid reason, but then was it just? ‘Cause just goes towards their lawful basis of it.

Nina Hoang: No, no, what I’m saying is I don’t think it was a valid reason.

Andrew Douglas: Okay.

Nina Hoang: Because a valid reason is refusing to comply with the safety direction, but if the safety direction wasn’t lawful and reasonable, then you can’t.

Andrew Douglas: Yeah, true.

Nina Hoang: That’s what I’m arguing, yeah.

Andrew Douglas: Well look, you probably get up, but you definitely get up under the just part of the last three tests.

Nina Hoang: Yeah, it’d definitely be harsh.

Andrew Douglas: Yeah, so it’d be harsh, but know the just means was the basis upon which you were required to do something lawful, and if it wasn’t, you win. And the other part is in fairness. You completely fall over in fairness ’cause you failed to disclose the relevant evidence.

Nina Hoang: Yeah.

Andrew Douglas: And general protections. She’s already raised this as a problem. She’s being terminated for failing to do it. But the next one, the next question I think is the killer. If WorkSafe became involved, would they do something? Unquestionably, this is Patrick Stevedores case. This was the first use of the anti-discrimination provisions of the Occupational Health and Safety Act in Victoria. Award of $180,000.

Nina Hoang: Wow.

Andrew Douglas: Very broad discretions given to WorkSafe in their prosecution. This is almost identical facts except it was that a wharf, it wasn’t doing it in this place. So yes, they would succeed.

Nina Hoang: If TNR shared its advice and investigation report with the dry hire, dry hire crane?

Andrew Douglas: Oh, so dry hire is, I hire you a crane, not a driver,

Andrew Douglas: Ah, okay.

Andrew Douglas: Whereas wet hire is, I stick a driver in as well.

Nina Hoang: Okay, and forklift providers, as well as the labour hire operating on site, under a claim of common interest privilege, would the chances of gaining access to the material improve for WorkSafe, Prue, and the Union?

Andrew Douglas: Well, so common interest privilege is where two people have a common defence. Now here, they don’t. So that’s the end of that argument. So common interest privilege just falls away and they do. Secondly, you’re disclosing to someone who doesn’t have a genuine interest in the privilege and was never engaged in the privilege in an appropriate place.

Nina Hoang: So you’re going to waive it.

Andrew Douglas: So you’re waiving it, yep.

Nina Hoang: How would the claim of LPP play out in Court?

Andrew Douglas: Very quickly. So the report would be handed up-

Nina Hoang: So it just wouldn’t succeed essentially.

Andrew Douglas: Yeah, the judge would start giggling, and at that stage you’d put your hand up and say, “I’m about to lose, can I settle?”

Nina Hoang: But do they, like, so does it get handed over straight away?

Andrew Douglas: Yeah, what happens is when privilege, it’s like an interlocutory hearing. So when privilege is raised, it becomes a pre-hearing on a document.

Nina Hoang: Yeah.

Andrew Douglas: So like any documentary argument as to admissibility and evidence, it’s handed up traditionally in a yellow closed envelope and each party make submissions in respect of it. And at the end of that, a decision is made. And often, when you get that is, the judge will say, “Look, if I can take a short break, what I’m going to do is erase parts of it. And if I can speak to you both to bring back that document with those areas covered up, then we can utilise the document as it is.”

Nina Hoang: Yep, cool.

Andrew Douglas: Okay? So look, fun set of facts today,

Nina Hoang: Interesting.

Andrew Douglas: but it does show you it’s not hard to keep privilege, but if you want to be careless or if you want to engage other people, or if you want to try and get other people on side by showing it who aren’t part of the decision making group, then it can’t be said that it’s for the sole purpose of obtaining advice, with dominant purpose of gaining advice. And once you lose that dominant purpose, you create waiver. All right, well, thanks very much.

Nina Hoang: Yeah.

Andrew Douglas: Good to catch up again.

Nina Hoang: Yeah, thanks for tuning in and give us a thumbs up.

Andrew Douglas: Cheers, bye-bye.

Nina Hoang: Bye!