The Court has before it a motion relating to the claim legal professional privilege over certain documents. The privilege is claimed by the first defendant and opposed by the plaintiff, who was the initiator of the notice to produce, and by the second defendant.
I will deal with them separately even though, for obvious reasons, both the plaintiff and second defendant may have a litigious purpose in examining the documents in each list.
Before doing anything else I would like to express my congratulations to all of the parties for narrowing the issues to the point where a far narrower list of issues remain to be decided than might than otherwise would have been the case.
I also appreciate, without commenting as to whether it was a matter of necessity or otherwise, that the first defendant has waived what it thought was its privilege over a range of documents that have now been produced. This waiver is certainly a matter that has facilitated the just, quick and cheap resolution of the issues before the Court.
It is necessary to set out very briefly the circumstances of the accident. The accident occurred on 12 August 2012 at a mine site in New South Wales. The plaintiff is an employee of the second defendant and was very seriously injured on a mine conducted by the first defendant. The plaintiff was what is commonly called a fly-in fly-out employee domiciled ordinarily in Western Australia.
There is other legislation beyond the Limitation Act 1969 (NSW). This legislation involves work health and safety requirements in this state and includes the Work Health and Safety Act 2011 (Cth) and the Coal Mine Health and Safety Act 2002 (NSW).
Exhibit 1 in these proceedings is a schedule marked in colour of documents over which privilege was initially claimed. The sections highlighted in yellow are documents over which the first defendant has agreed to waive its asserted privilege and are available for production. Those highlighted in pink are documents over which there continues to be a dispute.
The only evidence in these proceedings adduced by way of an affidavit is an affidavit of Jeremy James Kennedy. Mr Kennedy is a partner in McCullough Robertson Lawyers and was instructed by the first defendant to act on its behalf.
At paragraphs 7 and 8 of the affidavit of Mr Kennedy, Mr Kennedy asserts:
"[7] As a result of the information that the investigation unit was to attend the site I formed the view that the accident was considered serious by the DTI and that they would undertake an investigation and there was potential for ACOL to be prosecuted as a result of the incident. I also considered that there was the potential for civil proceedings for damages against ACOL arising from the incident.
[8] Accordingly, I advised Mr Wesley that ACOL would need to conduct an internal investigation in order for McCullough Robertson to be able to provide legal advice to it and for legal services to be provided to ACOL in respect of any prosecution or civil proceedings for damages arising from the incident. I advised Mr Wesley to commence such an investigation immediately."
Paragraph 7 was the subject of objection but was permitted to be read by the Court. It seems to me that all of the documents still in contention, with the possible exception of one document, are documents over which privilege exists. The one possible exception is the document described as the diary note dated 13 August 2012 and written by David Jones, an employee of the first defendant.
That diary note was the subject of some discussion before the Court. It is contained in Exhibit 3 on the motion as the last document in that bundle and listed as the last document on the schedule that is Exhibit 1.
Some diary notes of Mr Jones have been produced without a claim for privilege. It is clear and I draw the inference that Mr Jones is what I would loosely describe as a note taker and a person who completes diaries as a matter of course.
The affidavit of Mr Kennedy asserts that the diary notes by senior employees and management were undertaken at the request of the solicitors for the purpose of the provision of legal advice.
The diary note in question is a note of a meeting that occurred at 8am on the 13 August 2012 when the solicitors for the first defendant were first informed of the accident. In that conversation, Mr Kennedy was informed of the incident which had occurred on the previous day, and told that investigation unit of the Department of Trade and Investment was on its way to the mine and that other inspectors had attended the previous day.
As is obvious from the foregoing excerpt of the affidavit of Mr Kennedy set out earlier in these reasons, Mr Kennedy formed a view on the incident and its consequences and advised the first defendant accordingly.
I draw the inference that at 8am on 13 August 2012, Mr Jones could not have been making a note as a consequence of any request by the solicitors who at that same time were being informed of the incident the day before. Moreover, the diary note of 13 August 2012 bears the hallmarks, at least in part, of being a contemporaneous note of that meeting. The hallmarks of being a contemporaneous note are the details of the statements put forward by those persons involved in the incident in a form which is truncated and includes details that would be, in my view, very difficult to recall if one were reconstructing the notes at a later time.
There are some factors which go towards the opposite view. Some of the sentences are in the past tense in circumstances where one would not expect the past tense to have been used if the note was contemporaneous. Without disclosing anything that has not otherwise been disclosed, there also is a reference in the note to the person from the Department of Trade and Investment to the effect that that person "has requested" documentation of a particular kind. That request is one which, on its face, unless it had been made earlier before the meeting, would not have been made at the meeting by the person from the Department of Trade. Of course, notes of this kind are not always a verbatim account of everything that is said at such meetings.
It seems to me that I am faced with two opposing propositions. First, there is the assertion (and I do not say that critically) by Mr Kennedy that the notes were "undertaken" at the request of the solicitors. Secondly, there is the timing of the meeting which the notes record and what seems to be the contemporaneous nature of the note.
It seems to me, in the balancing exercise that I am required to undertake in relation to the inferences which may be drawn concerning the provenance of the diary note, there are two factors which ultimately lead me to the view that the diary note is not privileged. The first of them is that, since taking detailed notes is clearly a regular practice of Mr Jones, it seems to me that the first defendant has not established that the document created, even if it were created for the purpose of seeking legal advice, would not have been created in any event. As a consequence, the dominant purpose of the document is not in accordance with the comments of his Honour, Jacobs J in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, the purpose of the obtaining of legal advice pursuant to ss 118 or 119 of the Evidence Act 1995 (NSW).
Secondly, the first defendant has not established that this diary note was compiled as a consequence of the request from the solicitors. The timing and nature of the notes made the assertion equipoised.
As a consequence, I reject the claim for privilege relating to document 41 ag. That deals with the only document sought by the plaintiff and contested by the first defendant over which, in my view, a privilege does not arise. All of the other documents are privileged and I uphold the claim.
I shall now deal with the submissions of the second defendant, which raise a range of matters. First, the second defendant correctly points to the existence of s 28(1) of the Coal Mine Health and Safety Act 2002 (NSW) and the requirement on the miner, Ashton Coal (the first defendant), to comply with that section. Section 28(1) requires the conduct of regular reviews of the health and safety management system by the mines.
Further, s 28(2) requires the operator of the mine to review immediately the health and safety management system in circumstances where there is a dangerous incident at the coal operation that "could reasonably have been expected to result in a fatality".
I take the view that the seriousness of this injury is such that it is an incident that could reasonably have been expected to have resulted in a fatality. That, of course, does not mean that the first defendant took the same view, but there is nothing before me to suggest that it did not form that view. It seems to me that that the first defendant being, on the material before me, a responsible corporate citizen, would have taken steps to comply with the Coal Mine Health and Safety Act if it were so required.
The immediate review to which s 28(2) refers is a review that must be completed within six months and, in my view, the proper construction of 'immediate' must take into account that time frame.
The second defendant submits that compliance with ss 28(1) and (2) is another purpose behind the investigations, and thereby the creation of documents which are sought to be produced, and that such a purpose is equal to (if not dominant over) the purpose of giving legal advice. The difficulty with the submission put by the second defendant is the terms of the affidavit of Mr Kennedy.
Mr Kennedy, as earlier stated, was contacted on the day after the incident in question. He was informed of the incident and took a view as to the possibility of, amongst other things, prosecution under the relevant work and safety provisions and as to the necessity of investigating the incident for the purpose of providing advice to the first defendant. Mr Kennedy advised the first defendant to commence an investigation of the incident immediately.
The solicitors for the first defendant then engaged a contractor to assist with the investigation. Whether the contractor, SAFEgroup, was an agent of the solicitor or an agent of the first defendant matters little in the current circumstances. Plainly, they were engaged for the purposes for assisting the investigation.
The existence of s 28 and the duty that is imposed upon the first defendant under that section gives rise to another possible purpose in the investigation of the incident, but it does not go so far as to establish that purpose was the dominant or even an equal purpose with that asserted by Mr Kennedy in the affidavit at paragraphs 7 and 8.
It flows from that determination and the nature of the documents that are sought to be produced, which are described as Incident Cause Analysis Method (ICAM) investigation reports conducted by SAFEgroup, that the documents were prepared predominantly for the purpose described by Mr Kennedy, namely, the provision of legal advice.
I therefore come to the view that the remaining documents are in fact privileged. Of course this ruling, being an interlocutory ruling, can be reconsidered if other evidence becomes available.
I order that costs be costs in the cause.
[2]
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Decision last updated: 07 July 2015