Fair Work Act 2009

s.372 - General protections

Veolia Environmental Services (Australia) Pty Ltd

General Protections Application - Application resolved by conciliation - Application by Applicant to release Respondent's Form F8A from implied undertaking to use in unrelated proceedings between the parties - discretion - Application granted.

[1] On 20 July 2020, Mr Brian Klippert made an application under s.372 of the Fair Work Act 2009 (the Act) alleging Veolia Environmental Services (Australia) Pty Ltd (Veolia) took adverse action, by injuring him in his employment and/or altering his position to his prejudice by ceasing to offer Mr Klippert casual work or assign him shifts, because of, or for reasons including, that Mr Klippert had, exercised, or proposed to exercise his workplace rights concerning the benefits of the wages and conditions of the Award, and to apply for the enforcement of the Award to a Court of competent jurisdiction; and to make a complaint or inquiry in relation to his employment with Veolia.

[2] On 29 July 2020, Mr Richard Hesketh, Industrial Relations Manager for Veolia, filed a Form F8A Employer Response denying any contravention of the Act. The Form F8A included information about the underpayment of wages allegations and an offer of settlement.

[3] On 5 August 2020, a Conference was conducted pursuant to s.374 of the Act. Both parties were represented by counsel with permission granted pursuant to s.596 of the Act. The General Protections matter was resolved through conciliation. The parties were not able to resolve issues concerning the alleged underpayment of wages.

[4] At the conclusion of the Conference, counsel for Mr Klippert requested that the Commission release Mr Klippert from the implied undertaking in respect of the Form F8A. Directions were issued for the lodgement of submissions.

[5] There being no disputes of fact, the matter has been determined on the papers.

[6] Mr Klippert's submissions are summarised as follows:

• It is well established that parties to legal proceedings are taken to give an implied undertaking not to use documents or information obtained in a proceeding for an unrelated purpose without leave of the Court or Tribunal.

• The content of the implied undertaking was authoritatively described in Hearne v Street.[1]

• The rationale behind the undertaking is to protect a party's privacy and thus encourage full and frank disclosure; see Riddick v Thames Board Mills Ltd.[2]

• A party may be released from the implied undertaking if special circumstances exist which justify release; see Springfield Nominees Pty Ltd v Bridgelands Securities Ltd;[3] Nicholls v Hertslett.[4]

• A significant factor in favour of special circumstances is the existence of subsequent legal proceedings between the same parties; see Griffiths v Bereens Pty Ltd v Duggan & Ors (No.2).[5]

• Mr Klippert via the Australian Workers' Union has commenced proceedings in the South Australian Employment Tribunal seeking unpaid wages and pecuniary orders against Veolia.
• The Form F8A contains admissions made by Veolia but, despite this, payment has not been made. These admissions were not relevant to the General Protections claim alleged and Veolia was not compelled to provide this information.
• Mr Klippert seeks to rely on the Form F8A in his case against Veolia and seeks to be released from the implied undertaking.

[7] Veolia's submissions are summarised as follows:

• It opposes the application to release Mr Klippert from the implied undertaking.

• It agrees that the leading authority is Hearne v Street.

• In this case the Commission cannot be satisfied that there are special circumstances that justify the release from the undertaking.

• With respect to Mr Klippert's South Australian Employment Tribunal proceedings, Mr Benjamin Flanagan has submitted a statement making a number of admissions which results in there being no basis for the release of the Form F8A. A copy of Mr Flanagan's statement was not provided to the Commission.

• Veolia contended that there was nothing additional in the Form F8A which rendered it relevant.

• Veolia should not be disadvantaged by the release of the Form F8A.

[8] The decision of Deputy President Clancy in Craig Patterson v Service Panel Pty Ltd T/A Service Panel Pty Ltd[6] provides a useful discussion of the prevailing law on the topic of implied undertakings.

[9] In Esso Australia Resources Ltd v Plowman,[7] Mason CJ outlined the nature of the implied undertaking disclosed in court proceedings and its applicability to an arbitration:

"In relation to documents produced by one party to another in the course of discovery in proceedings in a court, there is an implied undertaking, springing from the nature of discovery, by each party not to use any document disclosed for any purpose otherwise than in relation to the litigation in which it is disclosed.

The next step is to say that a similar obligation arises in an arbitration... consistently with the principle as it applies in court proceedings, the obligation of confidentiality attaches only in relation documents which are produced by a party compulsorily pursuant to a direction by the arbitrator." [8]

[10] In Otter Gold Mines Ltd v Deputy President G L McDonald of the Administrative Appeal & Ors (Otter Gold),[9] Sundberg J held the implied undertaking arose during the course of proceedings before the Administrative Appeals Tribunal.

[11] I accept Deputy President Clancy's position in Patterson that the implied undertaking applies to documents disclosed to the Commission and note that neither party disputed this proposition.

[12] The question to be determined is whether I should release Mr Klippert from the implied undertaking. The nature of such a release was described by Sundberg J in Otter Gold as follows:

"The power to release from the implied undertaking of confidentiality is incidental to the power to require the documents to be produced. Production under compulsion gives rise to the undertaking. The power to release is intrinsically associated with that undertaking. It is the other side of the coin."[10]

[13] I accept that a party may be released from the implied undertaking where 'special circumstances' exist and in relation to this, it is worth repeating the propositions outlined by Wilcox J in Springfield Nominees:

"For 'special circumstances' to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding."[11] (emphasis added)

[14] Prior to Springfield Nominees, Burchett J had characterised 'special circumstances' and the release of an implied undertaking in Holpitt Pty Ltd v Varimu Pty Ltd (Holpitt)[12] in the following terms:

"In my opinion, the court's duty, in an ... [application] of this kind, is to consider whether the applicant has shown some circumstance which takes the matter out of the ordinary course, according to which production of documents pursuant to an obligation to make discovery involves the implied undertaking to the court; and, if so, whether an exercise of the court's discretion in favour of the application would be in the interests of justice..."[13]

[15] Referring to both Springfield Nominees and Holpitt in Australian Trade Commission v McMahon,[14] Lehane J subsequently said:

"The general principle is, no doubt, that a release of the implied undertaking will be given only if 'special circumstances' are established: Crest Homes PLC v Marks [1987] AC 829. Where an application for release is decided in contested proceedings, it seems that 'special circumstances' will fairly readily be found where it is established that the use of documents discovered in a proceeding is reasonably required for the purpose of doing justice between the parties in other proceedings."[15]

[16] Having reviewed these cases and others in Minister for Education v Bailey,[16] Steytler J concluded:

"It is neither necessary nor appropriate, in this case, to attempt any general definition of what might amount to 'special circumstances'. Each case must, inevitably, depend upon its own peculiar facts and circumstances." [17]

[17] Examples of what have been considered 'special circumstances' include:

• Applications to use documents which had been discovered in one set of proceedings, in other proceedings where there were common respondents, the same solicitors acting for each set of applicants and some commonality of fact (Sweetman v Australian Thoroughbred Finance Pty Ltd);[18]

• An application to use a statement pursuant to directions in one set of proceedings, which settled, in subsequent proceedings where both proceedings concerned overlapping time periods and the relationship between the maker of the statement with certain companies (Springfield Nominees);[19] and

• An application to use a document discovered in a set of proceedings in second proceedings where the second proceedings involved the same parties and solicitors, were related to the first proceedings (albeit raising different issues), and the document in question would have been discovered in the second proceedings (Minister for Education v Bailey).[20]

[18] As can be seen from the cases referred to, once satisfied 'special circumstances' exist, the decision as to whether or not the discretion to release a party from the implied undertaking should be exercised will turn on a range of factors, the foremost being the achievement of justice in the second proceedings.

[19] In essence, Mr Klippert submitted the 'special feature' was the requirement for the documents to support the underpayment of wages proceeding (which was between the same parties as the s.372 application), while Veolia contend that 'special circumstances' do not exist because Mr Klippert is able to obtain and use a letter sent by Mr Flanagan (which I have not been provided with a copy of) and in the alternative there is nothing else addressed by the Form F8A that is not addressed in the letter written by Mr Flanagan. Veolia finally assert that they could be disadvantaged by the release of the Form F8A without providing details as to how. This last contention appears to be at odds with the two prior contentions.

[20] On the question of whether there are special circumstances in this application before me, I consider there are. Drawing upon the various authorities to which I have referred, I consider the following factors relevant:

• the parties would be the same in the two proceedings and presumably they would retain the same solicitors;

• the two proceedings arise out of the same relationship between the parties; and

• there are likely to be common facts.

[21] I am not in a position to review Mr Flanagan's letter and compare its content to the Form F8A.

[22] I must then determine whether I will exercise my discretion to release Mr Klippert from the implied undertaking. I am persuaded the following factors combine to make it appropriate for me to grant Mr Klippert leave to use the documents for the purpose of the South Australian Employment Tribunal proceedings against Veolia:

• The document in question is an employer response required to be filed by rule 21 of the Fair Work Commission Rules 2013. The material provided and sought to be adduced before the South Australian Employment Tribunal, was not relevant to the General Protections application and appears to be an offer of settlement made to Mr Klippert. There was no reference to the offer being made on a without prejudice basis. It was suggested that the offer has been previously provided by telephone and email.

• I am not aware of the details of the South Australian Employment Tribunal application such that I could reasonably conclude that in light of the summary of the letter provided by Mr Flanagan, that the Form F8A would no longer be of probative value.

• While it is not possible to assess the extent to which the Form F8A might contribute to the achievement of justice in the South Australian Employment Tribunal proceedings, it contains material clearly relevant to the central issue likely to be in dispute - whether or not Mr Klippert was underpaid.

• The availability of the Form F8A will assist Mr Klippert to pursue his claim and will not prevent Veolia from defending it. The information contained in the Form F8A may be important to the ultimate determination of that dispute.

[23] I will issue an Order[21] granting leave to Mr Klippert to use the Form F8A lodged in his s.372 proceedings by Veolia in the conduct of his South Australian Employment Tribunal proceedings.

[1] [2008] HCA 36 at [96].

[2] [1977] QB 881.

[4] [2016] FCA 655.

[5] [2008] VSC 230.

[6] [2017] FWC 1305

[9] (1997) 76 FCR 467.

[11] [1992] FCA 472; (1992) 38 FCR 217 at 225.

[12] [1991] FCA 269; (1991) 29 FCR 576.

[14] (1997) 73 FCR 211.

[16] [2000] WASCA 377.

[18] Sweetman v Australian Thoroughbred Finance Pty Ltd (Unreported, Federal Court of Australia, Lockhart J, 23 July 1992).

[19] [1992] FCA 472; (1992) 38 FCR 217.

[20] [2000] WASCA 377 at [30].

[21] PR722402.

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