JURISDICTION: South Australian Employment Court

Return to Work Act 2014 (SA)

DECISION OF: His Honour Deputy President Judge Rossi

The applicant made applications for orders that would require his former employer, and the other party to the proceedings, to disclose and produce to him documents relating to an investigation into his conduct - The results of the investigation formed the basis of a decision by the other party to terminate the applicant's employment - The dismissal has been relied upon by the respondent to reject the applicant's claims for compensation for psychiatric injury - The respondent contending that the documents sought are not directly relevant to a material issue in the substantive proceeding - The other party contending that if the documents are directly relevant to a material issue in the substantive proceeding then the documents are subject to either legal professional privilege or public interest immunity - HELD - In accordance with s 96(d) of the Return to Work Act 2014 (the RTW Act) the other party is a party in the substantive proceeding - HELD - The documents that are the subject of the applications are directly relevant to material issues to be tried, as raised both by the applicant and the respondent - HELD - At least the dominant purpose of the documents which came into existence until the provision of the investigation report to the other party was to conduct an investigation and, at that time, not to provide legal advice, nor did they come into existence in anticipation of or in contemplation of legal proceedings - HELD - If privilege were to have been found in relation to those documents then the other party has, by its conduct, waived privilege - HELD - The documents following the provision of the investigation report came into existence for the dominant purpose of solicitors providing legal advice to the other party and are the subject of legal professional privilege and in relation to those documents the privilege has not been waived - HELD - The public interest does not require, in the circumstances of this case, that the other party have immunity from production of the documents sought by the applicant.

R v Fulcher [2007] SASC 138

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543

Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49

Grant v Downs [1976] HCA 63; (1976) 135 CLR 674

Players Pty Ltd (in liq) v Clone Pty Ltd [2013] SASCFC 25

Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501

Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1

Pratt Holdings Pty Ltd v Federal Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357

Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority [2002] VSCA 59; (2002) 4 VR 332

Singapore Airlines Ltd v Sydney Airports Corporation Ltd [2004] NSWSC 380

Electricity Trust (SA) v Mitsubishi Australia Ltd (1991) 57 SASR 48

Carter Holt Harvey Wood Products Australia Pty Ltd v Auspine Ltd [2008] VSCA 59

National Employer's Mutual General Insurance Association Ltd v Waind (1979) 141 CLR 648

Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526

Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NWSLR 44

Quinn v District Council of Cleve [2023] SAET 74

Kadlunga Proprietors and Others v Electricity Trust of SA and Others (1985) 39 SASR 410

Perpetual Trustees (WA) Ltd v Equuscorp Pty Ltd [1999] FCA 925

Quinn v District Council of Cleve [2023] SAET 74

Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83

Quinn v District Council of Cleve (No 2) [2023] SAET 94

District Council of Cleve v Quinn [2023] SAET 104

Commissioner of Taxation v Rio Tinto Limited [2006] FCAFC 86

DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499

Conway v Rimmer [1968] UKHL 2; [1968] AC 910

R v Mason [2000] SASC 161; (2000) 77 SASR 105

CPB Contractors Pty Ltd v State of SA [2024] SASCA 130

Alister v the Queen [1984] HCA 85; (1984) 154 CLR 404

NSW Public Transport Ticketing Corporation [2011] NSWCA 60

Spencer v Commonwealth [2012] FCAFC 169; (2012) 206 FCR 309

NSW Civil and Administrative Tribunal in Ansoul v City of Sydney [2017] NSWCATD 65

Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056

Maiolo v Return to Work Corporation of South Australia [2024] SAET 26

Phillips v The Commonwealth [1964] HCA 22; (1964) 110 CLR 347

Martin v Employers Mutual Ltd [2012] SASCFC 36

SA Mental Health Services Inc v Margush [1995] SASC 5246

Workcover Corporation of South Australia v Summers (1995) 65 SASR 243

Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54

Seven Network Ltd v News Ltd [2005] FCA 142

Conway v Rimmer [1968] UKHL 2; [1968] AC 910

Young v Quin [1985] FCA 18; (1985) 4 FCR 483

Marinovich v DPP [1987] FCR 310; (1987) 14 ALD 315

1. By application for directions dated 29 August 2025 the applicant Shane Fulcher (Mr Fulcher) sought orders that would require the respondent Local Government Association Workers Compensation Scheme (LGA) to disclose and produce documents relating to an investigation that was arranged by his employer, the Town of Gawler, in relation to him. The LGA is the compensating authority for the Town of Gawler in relation to a claim for compensation being pursued by Mr Fulcher for weekly payments and medical expenses claimed to have arisen from a psychiatric work injury.
2. A number of the documents that are the subject of the application for directions dated 29 August 2025 have not been produced by the Town of Gawler to either Mr Fulcher or the LGA. In the circumstances, Mr Fulcher has also, by application for directions dated 3 September 2025, sought similar orders of the Court directed to the Town of Gawler.
3. The parties advanced submissions as to whether the application for directions dated 3 September 2025 is by reference to r 56 or r 57 of the South Australian Employment Tribunal Rules 2024 (the SAET Rules). The text of the rules will be set out later in these reasons. Rule 56 relates to the obligation of parties to the proceedings to disclose and produce documents that are, or have been, in the party's possession, custody or power that are directly relevant to any material issue in a proceeding. Rule 57 addresses the ability of the Tribunal to make directions to a non-party to the proceeding for the disclosure and production of documents that appear to be relevant to a material issue in a proceeding. Rule 57 also refers to r 56 and neither Mr Fulcher, the LGA, nor the Town of Gawler advanced an approach, in relation to the application directed to the Town of Gawler which did not involve the application of r 56(2) of the SAET Rules. That was appropriate. Section 96 of the Return to Work Act 2014 (SA) (the RTW Act) is an interpretation provision. It defines who is a party to a proceeding:

96 - Interpretation

...

party to proceedings means -

(a) the applicant; and

(b) the relevant compensating authority; and

(c) if the matter is about a work injury and the worker who suffered or is alleged to have suffered the work injury is not the applicant - the worker; and

(d) if the matter is about a work injury and the employer from whose employment the injury arose or is alleged to have arisen is not the applicant - the employer; and

(e) a person who has a direct interest in the matter and has notified the Registrar of the interest;

1. If Mr Fulcher proves an entitlement to weekly payments, the Town of Gawler may have a liability for the first two weeks of incapacity.[1] It may also be required to provide suitable employment.[2]
2. At the time of Mr Fulcher filing his application for the Tribunal to review the determination of the LGA that rejected his claims for compensation, the Town of Gawler was a party to the proceeding in accordance with s 96(d) of the RTW Act. Registered employers do not always desire to be heard, notwithstanding the ability to be an active party in the proceedings. The usual practice of the Tribunal is to provide a notice to a registered employer to advise that if it desires to be heard then it needs to file in the Tribunal a relevant notice. In this case, the Town of Gawler did not desire to be heard generally in the proceedings, and the applications for directions were subsequently filed by Mr Fulcher. The Town of Gawler wished to be heard in relation to the applications for directions, and provided notice and has been, relevantly, a party to the proceeding for the purpose of determining the applications for directions. Whilst the Town of Gawler may be prepared to abide the event and not be required to attend other hearings in the substantive proceeding, it remains a party unless there is an order of the Tribunal that has the effect of removing it as a party to the proceeding.[3]
3. In these reasons, some findings and observation relating facts are made. They are in the context of interlocutory applications with limited and untested affidavit and other documentary evidence. The findings are not intended to be concluded findings in the substantive proceeding.

1. Mr Fulcher commenced employment with the Town of Gawler on 13 April 2015. From October 2023 he had been working as Acting Manager Operations Town Services with his substantive role being Team Leader Civil.
2. The Town of Gawler provided Mr Fulcher with a Show Cause letter dated 29 August 2024. It set out a number of allegations which were contended could amount to serious and wilful misconduct. The object of the letter was expressed to be to afford Mr Fulcher an opportunity to respond to the allegations. The allegations raised were as follows:

Allegations

1. It is alleged that, during a toolbox meeting held with a number of Council employees i.e. your subordinates at the Council Depot on or around 11 July 2024, you said words to the effect of "that dog" or "that dog in there" or "those dogs in there" and "she better watch out" referring to council employee [redacted].

2. It is alleged that, during a toolbox meeting held with a number of Council employees i.e. your subordinates at the Council Depot on or around July 2024, you asked, in an abrupt manner "where's [redacted]?" (referring to Council employee [redacted]). When you were informed that [redacted] was away on sick leave, you said words to the effect of "Book a meeting with HR, I've had enough of this, I've got a diary on him".

3. It is alleged that, in approximately December 2023, [redacted] approached you in the Depot office to ask about paternity leave. In response, you said words to the effect of "who's the father?" which was highly inappropriate and caused [redacted] significant offence.

4. It is alleged that you have made inappropriate and unprofessional comments to other Council employees including:

5. inappropriate and unprofessional comments to various Council employees about taking [redacted] to Council's Human Resources section due to his performance; and

6. inappropriate and unprofessional comments about putting up totem poles for indigenous culture whilst working alongside an indigenous employee.

7. It is also alleged that you regularly:

8. treat other Council employees in a rude, aggressive, and disrespectful manner;

9. smell of alcohol and appear to be under the influence of alcohol, particularly in the mornings;

10. antagonise other Council employees and pit employees against each other;

11. treat some employees with favouritism while displaying the conduct described in the sub-paragraphs above towards other employees not in your favour.

12. It is alleged that your consistently poor attitude and treatment of other employees had create a hostile and toxic work environment at the Council Depot where employees do not feel comfortable raising concerns about your inappropriate conduct.

1. Mr Fulcher took up the opportunity to respond and did so, in detail, by email transmission on 5 September 2024. Mr Fulcher referred to the role of Manager of Operations having been historically challenging and that his experience included being continually subject to disruptive and obstructive behaviours. He felt that he had been undermined and identified a co-worker as being involved. He addressed the allegations raised against him. Some allegations were expressly denied. Some were contended to be lacking in sufficient particulars to enable a detailed response, but, overall, he denied all of the allegations raised against him. His summary included the following:

I have been employed by the City of Gawler for over nine years now. During this time, I have made every effort to ensure that I am always compliant with my Contract, my position description, Council's values and the relevant legislation applicable to my employment. I have never been involved in an investigation before and have never had any form of disciplinary action taken against me.

...

I do not agree that I have created a hostile and toxic working environment. A number of these allegations are simply not true or are entirely out of context. This letter has been incredibly disheartening to read.

I am deeply concerned that the language used in your letter of 29 August 2024 is quite strong and suggests you have already decided that the trust necessary for the employment relationship to continue may no longer exist, and that my employment should therefore be terminated. I do not agree.

1. By letter dated 23 September 2024 the Town of Gawler informed Mr Fulcher the outcome of the Show Cause process. It was a termination of his employment. The Town of Gawler determined that the allegations contained in paragraphs 9, 10, 11, 12.a, 12.b, 13.a, 13.c, 13.d and 14 of its letter dated 29 August 2024 were substantiated. By that time Mr Fulcher had submitted a claim form dated 15 September 2024. He sought loss of wages and medical expenses for "depression, anxiety, adjustment disorder" which he attributed to "normal administrative duties" and "stressors from other individuals at work".
2. The claim for compensation was rejected, and he was notified of the rejection by letter of the LGA dated 1 October 2024. The LGA concluded that the claim for compensation was a response to the disciplinary process undertaken by the Town of Gawler. It found that any psychiatric injury sustained by Mr Fulcher, in all likelihood, had arisen wholly or predominantly from a disentitling event as set out in s 7(4)(a), (b) and/or (c) of the RTW Act.
3. On 5 March 2025 Mr Fulcher sought a review of the determination. He asserted that he has suffered a psychological injury which has arisen out of and in the course of his employment and that his employment has been the significant contributing cause of his injury. He asserted that the injury has not arisen wholly or predominantly from any action or decision of the employer within the ambit of s 7(4) of the RTW Act.
4. At the end of the compulsory conciliation conference process, the matter was referred, by the Commissioner presiding over the conference, for hearing and determination. On 19 June 2025 orders were made that included:
   1. The applicant is to file and serve a Statement of Facts, Issues and Contentions by 3 July 2025.
   2. The respondent is to file and serve a Statement of Facts, Issues and Contentions by 24 July 2025.
   3. Each party is to file and serve a list of documents by 7 August 2025.
5. The LGA filed its list of documents on 5 August 2025. Under a heading of "Documents for which privilege is claimed", the following appeared:

Correspondence between the respondent, the Council, its witnesses, and the respondent's solicitors of various dates, draft, pleadings, reports, proofs, and investigation reports, file notes, meeting notes (various dates), draft statements and investigations reports on the basis that such documents are the subject of legal professional privilege.

1. By application for directions dated 29 August 2025 Mr Fulcher sought the following order:

1. That the respondent provide disclosure of the following documents:

• 1.1. The initial complaint(s) leading to the investigation into the applicant in around July 2024.
  • 1.2. Internal correspondence regarding the complaint(s) and the management of the complaint(s) including the decision to engage external lawyers to conduct an investigation.
  • 1.3. Internal and external correspondence regarding the decision to suspend the applicant.
  • 1.4. External correspondence between the Council and its lawyers regarding conducting an investigation into the complaint(s).
  • 1.5. Interviews conducted as part of the investigation.
  • 1.6. Investigation report detailing the outcome of the investigation.
  • 1.7. Correspondence between the Council and its lawyers regarding the outcome of the investigation.
  • 1.8. Internal correspondence regarding the outcome of the investigation and the decision to terminate the applicant's employment.

2. By letter dated 27 August 2025 the solicitors for the LGA wrote to Mr Fulcher's solicitors addressing the obligation of disclosure. The letter addressed the request for discovery and production of documents relating to the investigation of Mr Fulcher and the decision to terminate his contract of employment. The letter included:

In response to your request for any internal correspondence including to and from members of the HR Department and management regarding the investigation into the allegations leading to the termination of the applicant's employment, and the decision to terminate the applicant's employment as the investigation was conducted by the Council's legal advisors and the decision made upon Council's legally privileged advice, such documents are subject of (sic) legal professional privilege.

1. The letter then set out a table. It described, in general terms, the documents in existence for which legal professional privilege was claimed and the dates of the documents.

The relevant provisions relating to the disclosure of documents and information

1. The main objectives of the Tribunal are set out in s 8 of the South Australian Employment Tribunal Act 2014 (the SAET Act). The Tribunal is required to promote the best principles of decision-making including affording the parties natural justice and procedural fairness.[4] The Tribunal is to act with as little formality and technicality as possible and may inform itself in such manner as it thinks fit.[5] The Tribunal is to be flexible in the way in which it conduct its business and is to adjust its procedures to best fit the circumstances of a particular case or a particular jurisdiction.[6]
2. The principles, powers, and procedures of the Tribunal are set out in Part 4 of the SAET Act. The evidentiary powers are set out in Division 2. The procedures are set out in Division 3. Section 36 imposes a duty upon the Tribunal to ensure that the parties are in a position to understand both the nature of assertions made in the proceedings and the legal implications thereof.[7] The Tribunal is to ensure that the parties have the opportunity in any proceedings to be heard or otherwise have their submissions received.[8] In order for the parties to be in a position to advance meaningful submissions and for the Tribunal to achieve a just outcome and produce high-quality decision making there are provisions to facilitate the provision to the Tribunal and the parties documents and information to allow the main objectives of the Tribunal to be achieved. The Tribunal is to take all practical steps to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all the relevant facts in issue in any proceedings.[9] Section 37 empowers the Tribunal to make such directions as it considers necessary for the speedy and fair conduct of the proceedings. It provides:

(1) The Tribunal may give directions at any time in any proceedings and do whatever is necessary for the speedy and fair conduct of the proceedings.

(2) The Tribunal may give directions on its own initiative or at the request of a party.

(3) A directions hearing may be held for the purposes of this section before any other hearing in any proceedings.

(4) The Tribunal may give a direction requiring a party to produce a document or other material, or to provide information, to the Tribunal or another party.

1. Section 92 of the SAET Act empowers the Tribunal to make rules that regulate the practice and procedure of the Tribunal[10] and to deal with any matter necessary and expedient for the effective and efficient operation of the Tribunal.[11] Rule 56 of the SAET Rules addresses the discovery of documents. It provides, relevantly:

(1) In this Part and Part 10 the word 'discovery' means the requirement parties have in litigation to reveal the existence of documents and other materials to each other and not the requirement to disclose materials to the Tribunal in section 28 of the SAET Act.

(2) Unless a relevant Act provides otherwise, each party must discover the documents that are, or have been, in the party's possession, custody or power to produce and are directly relevant to any material issue in a proceeding.

(3) Unless a relevant Act provides otherwise, the Tribunal may at any time order a party or any other person to provide a list of documents in the approved form P09 and produce to the Tribunal and any other party to the proceeding, any document which is or has been in the possession of the party that is directly relevant to a material issue in the proceeding.

(4) Where a party or other person discovers documents which are not directly relevant to a material issue in a proceeding, an adverse order for costs, may be made against them that reflects the additional time and expense to which other parties have been put by the unnecessary discovery.

(5) Subject to any other sub-rule, a party is required to produce any discovered document within 7 days of a request for production.

(6) A party to a proceeding may decline to produce a document to which sub-rule (5) applies if:

(a) the document is privileged from production by operation of legal professional privilege;

(b) section 104(4) of the Return to Work Act 2014 applies to the document; or

(c) in the opinion of the Tribunal there is some other compelling reason why the document should not be produced.

(7) If a party declines to produce a document during compulsory conciliation under sub-rule (6) the nature and basis of the objection to produce should be indicated in the index to the book of documents provided the party has provided a book of documents, or otherwise by a letter or in a list of documents.

(12) The Tribunal may modify this rule in any way thought fit, including but not limited to, by use of the examples given in rule 73.14(2) of the Uniform Civil Rules.

1. Rule 57 of the SAET Rules addresses non-party discovery and the production of documents in such circumstances. It provides:
   1. Non-party discovery and production of documents

(1) On an application made by a party to a proceeding, if the Tribunal is satisfied that a person or body who is not a party to the proceeding (non-party) may be in possession of documents that appear to be relevant to a material issue in a proceeding, the Tribunal may order that the non-party:

(a) discover in the approved form P09, or some other form approved by a Tribunal member, whether it has or has had possession, custody or power of any documents that appear to be relevant to a material issue in a proceeding, and identify any such documents;

(b) produce any document discovered under sub-rule (1)(a) or that otherwise appears to be relevant to a material issue in a proceeding to the Tribunal;

(c) comply with rule 56 as if the non-party was a party to the proceeding, with any modifications thought necessary; or

(d) verify the discovery made or production given by affidavit, or in person, and if in person, be questioned on the issue.

(2) A non-party required to discover or produce documents under this rule is entitled, subject to contrary order, to reasonable compensation from the party seeking the discovery, for time and expense taken to comply with the order.

(3) The amount of compensation payable under sub-rule (2) is to be agreed between the relevant parties or, failing agreement, adjudicated by the Tribunal. The evidence relating to the claim of legal professional privilege

1. These provisions are subject to the application of s 32(2) of the SAET Act which expressly preserves the operation of legal professional privilege and public interest immunity. It provides:

32 - Principles governing hearings

...

**(2) Nothing in this Act affects any rule or principle of law relating to -

1. Section 64 of the SAET Act addresses other claims of privilege. Subsection 64(1) provides that a person is excused from answering a question or producing a document or other material in proceedings if that person could not be compelled to answer the question or produce the document or material in proceedings in the Supreme Court. Construed together with the text of s 32(2), it indicates that the Tribunal is to apply the same principles as are applied by the Supreme Court when addressing claims of legal professional privilege and public interest immunity.
2. Subsection 64(2) empowers the Tribunal to require a person to produce a document or other material to it for the purpose of determining whether or not it is a document or material that the Tribunal has power to compel the person to produce.

The affidavit evidence in support of the applications

1. An affidavit of Mr Fulcher's solicitor Donald Blairs, affirmed on 3 September 2025, was read in support of the applications. It set out the background to the filing of the applications including informal requests for disclosure and production of the documents that are the subject of the applications. In his affidavit, Mr Blairs stated that the documents are sought because Mr Fulcher considers the documents to be directly relevant to issues to be tried in the substantive proceedings. Mr Blairs referred to an issue to be tried of whether the decision or action of the Town of Gawler associated with the decision to terminate Mr Fulcher's contract of employment was reasonable action taken in a reasonable manner within the ambit of s 7(4) of the RTW Act.

The affidavit evidence relied upon by the Town of Gawler

1. The circumstances relating to the creation of the documents that are the subject of Mr Fulcher's applications have been set out in an affidavit of solicitor Benjamin Robert Smith affirmed on 5 November 2025. Mr Smith deposed to the Town of Gawler having engaged solicitors Mellor Olsson Lawyers on or around 8 August 2024 to undertake a confidential workplace investigation into concerns about the behaviours of Mr Fulcher. Mr Smith stated that the subsequent investigation was overseen by Mr John Love who is a solicitor that regularly appears in this jurisdiction. Interviews were subsequently undertaken by Mr Smith and a work colleague Matilda Wise. Mr Smith deposed to having informed each witness that he interviewed, at the start of the interview, that the information obtained would be provided in a confidential report for the consideration for the Town of Gawler's Human Resources Manager and Chief Executive Officer. He sought to provide an assurance that in the event of disciplinary action being taken against Mr Fulcher then the information provided by the witness would be de-identified "as far as possible" in order to protect them. Mr Smith stated his understanding that Ms Wise provided a similar assurance to the witnesses that she interviewed.
2. At the end of the statement-taking process a report, described by Mr Smith as "confidential" was provided to Ms Sue Tobin whom, at the time, was the manager of People and Culture at the Town of Gawler. It is not clear from Mr Smith's affidavit whether statements of the witnesses interviewed were provided or a summary of what was said was provided to Ms Tobin. It appears the solicitors interviewed witnesses, verbal statements were made, the solicitors made some handwritten notes and typed notes but formal written statements of the witnesses were not completed. In these reasons, where I refer to the statements of the witnesses interviewed I am referring to the verbal statements made and the notations of the solicitors as to those statements.
3. Mr Smith deposed to the investigation report stating it was:

... making findings of fact (on the balance of probabilities) to enable the Council to comply with its obligations under the Work Health and Safety Act 2012 (WHS Act) to ensure the safety (both physical and psychological) of its staff.

1. Mr Smith stated that following the provision of the investigation report the solicitors provided the Town of Gawler with legal advice related to the findings of fact and the subsequent disciplinary process that was taken against Mr Fulcher. Mr Smith deposed to the advice relating to the allegations that were raised with Mr Fulcher and the options available to the Town of Gawler after Mr Fulcher provided his response to the Show Cause letter.
2. Mr Smith addressed aspects of the claims for compensation submitted by Mr Fulcher. On 24 February 2025 Ms Bonnie Williams commenced in the role of manager of People and Culture with the Town of Gawler. After the Town of Gawler was advised by the LGA of Mr Fulcher's request for disclosure and inspection of documents related to the investigation undertaken by the Town of Gawler, Ms Williams spoke to Mr Smith. He deposed to her having expressed concern about:

... the identification of employees who had participated in the investigation process and the potential for threats and reprisals; as well as the employer's ability to effectively investigate future disciplinary issues and complaints and the willingness of staff to participate in such investigations if they could not be assured that their interviews and complaints would remain confidential and not be disclosed to others including the alleged perpetrators.

1. The statements made by Ms Williams were expressions of belief relating to the witnesses interviewed rather than direct knowledge. The basis of her belief was not disclosed in Mr Smith's affidavit. Mr Smith did not depose to any of the witnesses he interviewed having expressed a concern if their identity was disclosed to Mr Fulcher or their statement disclosed to him if there were to be subsequent legal proceedings. In the circumstances, I attach little weight to the statements attributed to Ms Williams relating to circumstances of this case. Given her position, I have considered separately her more general statements relating to the possible reluctance of persons in the future giving statements in an investigation of potential disciplinary matters.
2. Mr Smith was subsequently instructed to oppose Mr Fulcher's application directed to the Town of Gawler on the basis that the documents sought are the subject of either legal professional privilege or public interest immunity.
3. Later in his affidavit, Mr Smith asserted that the dominant purpose for the creation of all of the documents sought by Mr Fulcher was to enable solicitors to provide legal advice to the Town of Gawler regarding its rights and obligations with respect to Mr Fulcher's alleged misconduct and his employment generally. Properly construed, it was a characterisation and submission which will be addressed later in these reasons.
4. In relation to public interest immunity, Mr Smith asserted that an order requiring disclosure of the investigation documents may cause employees generally to avoid participating in workplace investigations due to the risk of information being disclosed to alleged perpetrators of inappropriate workplace conduct. Mr Smith referred to a concern of the Town and Gawler for the safety and welfare of employees and witnesses identified in the investigation documents.
5. In paragraph 31 of his affidavit, Mr Smith disclosed some of the content of the statements made by those interviewed and relating to the applicant:
   1. During the investigation, the interviewees made comments about the Applicant.

31.1. regularly smelling of alcohol;

31.2. making them feel uncomfortable;

31.3. being known for "shooting his mouth off";

31.4. referring to a female colleague as "that dog";

31.5. has an "old school concreter mentality" and can be "short and abrupt";

31.6. possibly having a "mental health issue";

31.7. regularly arriving at work "in a bad mood with an angry demeanour"; and

31.8. inappropriately discussing other employees and confidential information.

1. Mr Smith referred to Mr Fulcher's past conduct. He deposed to Mr Fulcher having been charged in the past with the offence of attempted murder where, at trial, the jury was unable to reach a verdict. Mr Fulcher subsequently pleaded guilty to offences of aggravated criminal trespass in a place of residence and causing grievous bodily hard with intent to cause grievous bodily harm. The facts are set out in a judgment of the Court of Criminal Appeal in R v Fulcher.[12] He generally referred to the Town of Gawler having a concern that disclosure of the documents sought may result in Mr Fulcher seeking revenge against the employees who participated in the investigation. How that may arise or what form the "revenge" may take, given Mr Fulcher's dismissal was not addressed. No evidence was presented of Mr Fulcher having engaged in physically violent behaviour during the approximately nine years of employment leading to his dismissal.
2. Mr Smith addressed the categories of documents sought by Mr Fulcher. The first category concerns the initial complaint or complaints leading to the investigation into the applicant in around July 2024. Mr Smith stated that the documents within that category are four file notes which describe discussions held between Ms Tobin and four employees of the Town of Gawler on 25 July 2024 and 1 August 2024. Mr Smith disclosed some of the detail of the concerns raised:
   1. The file note from 25 July 2024 shows that an employee had raised concerns about the applicant's conduct in describing other employees as "those two fuckin' dogs in there", making inappropriate comments regarding an employee with a work-related injury, and talking to employees in an aggressive manner. The employee also stated that, as a result of the Applicant's conduct, "staff are scared", "walking on tip toes", and that "everyone walks on eggshells".
3. In relation to the four file notes, the Town of Gawler does not assert legal professional privilege but does assert public interest immunity.
4. The second category concerns internal correspondence relating to the complaints, the management of the complaints, and the decision to engage external lawyers to conduct the investigation. Mr Smith stated that there are no documents in existence in relation to that category and that the decision to engage external lawyers followed a discussion.
5. The third category relates to internal and external correspondence relating to the decision to suspend Mr Fulcher. Mr Smith stated that there are no documents within that category but there are three emails between Ms Tobin of the Town of Gawler and solicitor Mr Love. Mr Smith stated:

These emails show that Ms Tobin emailed Mr Love on 6 August 2024 to request a "suspension letter template" which Mr Love provided on 7 August 2024 along with a "basic script" for Ms Tobin's in-person meeting with the applicant to formally suspend him from work.

1. The Town of Gawler claims legal professional privilege on the basis that the dominant purpose of the three emails was to enable solicitors to provide the Town of Gawler with legal advice.
2. The fourth category concerns the external correspondence between the Town of Gawler and its lawyers regarding the conducting of an investigation into the complaint.
3. Mr Smith acknowledged that there are emails between Ms Tobin and Mr Love that fall within this category. Mr Smith refers to Ms Tobin having provided an email to Mr Love on 12 August 2024 with a schedule of interviews of 11 employees. Reference is also made to an email from Ms Tobin to Mr Love on 13 August 2024 providing background information for the investigation.
4. The Town of Gawler claims both legal professional privilege and public interest immunity in relation to that category of documents.
5. The fifth category concerns the interviews that were conducted. Mr Smith referred to typed notes that he prepared from the interviews of a number of Town of Gawler employees. He also referred to handwritten notes from interviews prepared by Ms Wise. He stated that these are the only relevant documents in this category.
6. The Town of Gawler claims both legal professional privilege and also public interest immunity in relation to that category of documents.
7. The sixth category is the investigation report prepared by solicitors Mellor Olsson. Mr Smith deposed to that report containing the information obtained from the witnesses in the investigation including their names and other identifying details. The report also sets out the recommendations of the solicitors for the Town of Gawler to consider. What the recommendations relate to is not identified.
8. Mr Smith stated that while the purpose of the investigation was to make findings of fact, that was in order to provide the Town of Gawler with legal advice. He then stated that the dominant purpose of the investigation report was to provide the Town of Gawler with legal advice and recommendations regarding the allegations against Mr Fulcher. There is tension between these statements and what Mr Smith stated earlier in his affidavit as referred to above. Earlier in his affidavit, Mr Smith stated Mellor Olsson had been engaged on or around 8 August 2024 to undertake an investigation, that findings of fact were made which appear to have been recorded in the report together with information gathered from witnesses interviewed and that the report contained recommendations. What the recommendations related to was not identified. He deposed in a later paragraph that it was following the provision of the investigation report that legal advice was given. I will refer to this later in the reasons. Both legal professional privilege and public interest immunity has been claimed.
9. The seventh category of documents concerns correspondence between the Town of Gawler and its lawyers regarding the outcome of the investigation.
10. Mr Smith acknowledged that there are emails between Ms Tobin and Mellor Olsson lawyers that fall within this category. The first is an email sent by solicitor Mr Love to Ms Tobin on 25 August 2024 which attached a copy of the investigation report prepared by Mellor Olsson lawyers. The remaining documents are emails between Ms Tobin, Mr Love, and Mr Smith addressing various matters which are asserted to be the subject of legal professional privilege as it is contended that the dominant purpose was to enable the Town of Gawler to receive legal advice.
11. The eighth and final category concerns internal correspondence regarding the outcome of the investigation and the decision to terminate Mr Fulcher's employment.
12. Mr Smith referred to enquiry having been made and that no emails have been located within this category. Mr Smith refers to discussions that took place related to this topic.

1. In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission,[13] Gleeson CJ, Gaudron, Gummow and Hayne JJ referred to legal professional privilege as "a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings."[14]
2. Their Honours went on to note that the "dominant purpose" test for legal professional privilege was adopted by the Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation[15] in place of the "sole purpose" test which had been applied previously following the decision of the Court in Grant v Downs (Grant).[16]
3. In Grant, Stephen, Mason and Murphy JJ addressed why the privilege has been recognised by Australian courts:

...it promotes the public interest because it assists and enhances the legal administration of justice by facilitating the representation of clients by legal advisors, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor.[17]

1. Whilst the disclosure of documents may be the subject of the privilege, it is where it would reveal communications between a client and his or her lawyer made for the dominant and relevant purpose.[18]
2. The rationale of keeping secret communications between a client and legal advisors emphasises that the privilege may only be invoked to protect confidential communications. In Mann (Mann),[19] Gleeson CJ, Gaudron and Gummow JJ referred to the client as being the person entitled to the benefit of confidentiality, and who may relinquish that entitlement. After noting that "waiver" may be used in many senses, their Honours stated that where there is inconsistency between the conduct of the client and maintenance of the confidentiality, a waiver of the privilege may be effected.[20]
3. The privilege has been referred to as a specific and paramount area of the public interest in comparison to the general public interest which requires that all relevant documentary evidence be available. In Grant, Stephen, Mason and Murphy JJ stated:

The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision. Nonetheless there are powerful considerations which suggest that the privilege should be confined within strict limits.[21]

1. The provisions of the SAET Act referred to earlier in these reasons confirm the same principle and approach applies in proceedings in the Tribunal.
2. The privilege is most commonly raised in the context of actual or contemplated or reasonably anticipated litigation. The existence of the privilege has consistently been held to apply in such circumstances. Whether information provided or documents brought into existence by a third party for the dominant purpose of a lawyer providing advice outside of litigation is not as clear.
3. In Pratt Holdings Pty Ltd v Federal Commissioner of Taxation,[22] the Court addressed the operation of the privilege where there is a third party communication associated with the obtaining of legal advice as to the preferred structure of a business transaction. The court held the application of the privilege was not dependent upon a finding of agency. The Court also held that, in the area of complex commercial arrangements and complex taxation legislation, communications between the client, an expert and the lawyer providing advice may be the subject of the privilege.[23]
4. In Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority,[24] the Court held that advice privilege is not available where one of the parties to the communication is a third party who is not an agent of the client for the purpose of the communication:

Before us both parties accepted that the only ground by reference to which the claim for privilege could be justified, if at all, was that confidential communications passing between a legal adviser or client and third parties that are not agents of the client need not be given in evidence or otherwise disclosed by the client and, without the consent of the client, may not be given in evidence or otherwise disclosed by the legal adviser if made for the dominant, if not sold, purpose of use in, or in relation to, litigation (including criminal proceedings) then existing or anticipated (or in contemplation).[25]

1. The relevant purpose or purposes are to be determined at the time of the communication or the obtaining of the document.[26] Where a report has been commissioned, ordinarily, the relevant time will be when the report is commissioned and that may be over a period of time. As McDougall J stated in Singapore Airlines Ltd v Sydney Airports Corporation Ltd:[27]

Where a report is commissioned by an external solicitor, so that the relevant purpose is that of the solicitor, it follows that the time at which that purpose is to be assessed is the time when the report is commissioned. Of course, if the solicitor acquires further information, and gives further instructions to the person from whom the report has been commissioned, then the time at which the relevant purpose is to be assessed (and the material by reference to which it is to be assessed) might be extended accordingly.[28]

1. In Electricity Trust (SA) v Mitsubishi Australia Ltd,[29] the Court held that where the privilege would otherwise apply, the fact that a report at some subsequent stage is used for a different purpose does not affect the determination of the question of whether it was prepared for the purpose of obtaining legal advice.[30]
2. Where, as in this case, the creation of documents is raised, the inquiry is directed to the purpose of either the person who created the document or the person under whose direction it was created. This is principally a subjective test.[31]
3. In determining the dominant purpose, the Court of Appeal in Carter Holt Harvey Wood Products Australia Pty Ltd v Auspine Ltd,[32] referred to a two-step approach. The first is the ascertainment of the subject purpose or purposes of the person or persons making or commissioning the communication in question. If the Court concludes that there was more than one purpose and at least one is capable of attracting the privilege, then the second step is to determine whether the party claiming the privilege has established that the privileged purpose was the dominant purpose.[33] For the purpose to be "dominant", it must have "clear paramountcy".[34]
4. It is convenient to review the approach of courts in identifying the dominant purpose in circumstances of an investigation. They reveal the outcome is dependent upon the facts as found by the Court.
5. National Employer's Mutual General Insurance Association Ltd v Waind[35] was a case of an investigation relating to claims for workers compensation. The employer's insurer obtained reports from loss assessors and medical reports relating to injuries claimed to have been suffered by a worker. Evidence was given by an officer of the insurer that the purpose of obtaining the reports was to defend the matter in the Workers Compensation Commission. At first instance there was a finding that there were two purposes for obtaining the reports. The first was to determine if there was a liability for the claims for compensation made and the second was to use the documents if there were to be subsequent litigation. Upon appeal, the finding that the privilege did not apply was upheld. Mason J (with whom Barwick CJ, Stephen, Jacobs and Aickin JJ agreed) stated:

90% of the claims do not result in litigation and the documents are brought into existence so that the appellant can decide in the first instance whether it will pay compensation or dispute liability. In these circumstances the purpose of submitting the documents to solicitors is very much of a secondary consideration because a small proportion of the cases only proceed that far.

...In this instance again, documents are brought into existence to enable the appellant to decide what it will do. In this situation if the appellant decides to discontinue payments, litigation is likely to ensue. Although there is a greater likelihood that documents of this class will be submitted to solicitors for use in litigation, the primary function for which they are called into existence is, as the trial judge said, to enable the appellant to make a decision in the ordinary course of its business.

...These facts do not sustain the existence of an overriding purpose of the kind which the appellant seeks to set up. If it had been the practise of the appellant to refer every claim and every case with the relevant reports to its solicitor for advice or information, the appellant might have been in a position to establish the existence of an overriding purpose which would found a claim to legal professional privilege. But the facts fall far short of this.[36]

1. A similar outcome occurred in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd.[37] There, an officer of the Commission initiated an investigation of possible breaches of the Trade Practices Act 1974 and with a view to instituting proceedings if breaches had been found. Goldberg J held that prior to any decision to institute proceedings, there was a dual purpose of creating the witness statements. The first was of investigation and the second, if proceedings were issued, was to provide submission to lawyers for use in those proceedings. Goldberg J found the second purpose was not, in all the circumstances, the dominant purpose.
2. In other cases, the Court has been satisfied that the dominant purpose of a report relating to an investigation gave rise to the privilege. In Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd,[38] an insurer in relation to a claim for indemnity under a fire insurance policy instructed solicitors to advise in relation to the claim. The solicitors instructed loss adjusters to provide reports to enable the solicitors to provide legal advice to the insurer. Wood J held that the only purpose for the obtaining of the reports was to obtain legal advice and that the reports were thereby privileged.
3. In Mitsubishi Electric Australia Pty Ltd v Work Cover Authority (Vic),[39] a worker sustained injuries when a machine exploded. After submitting a workers compensation claim, the employer's insurer appointed solicitors and those solicitors commissioned reports that were prepared by a loss adjuster. The Court of Appeal concluded that the only purpose in obtaining the reports was the giving of legal advice in relation to anticipated litigation and the reports were thereby privileged.
4. This Tribunal has considered, in a number of decisions between Meisha Quinn and the District Council of Cleve, disclosure by the council of documents relating to an investigation undertaken by the council's solicitors where those documents were relied upon in a decision to terminate Ms Quinn's contract of employment. The substantive proceeding included a claim of unfair dismissal. Ms Quinn also submitted a claim for workers compensation for a psychological disorder. Allegations raised against Ms Quinn, the investigation of those claims and the decision to terminate her contract of employment were relevant to a determination of her claims to be entitled to workers compensation.
5. The background is set out in the reasons for decision of Kelly DPJ in Quinn v District Council of Cleve.[40] Investigations into Ms Quinn's conduct were undertaken by a solicitor in the firm of solicitors representing the council. That solicitor was assisted by another solicitor in the same firm.
6. The parties were directed to file a list of documents. Ms Quinn sought detail of the categories of documents relating to the investigation. Kelly DPJ directed the council to provide a more detailed list so as to enable Ms Quinn to determine whether there should be a challenge to the claim of legal professional privilege. In doing so her Honour referred to the judgment of the Full Court in Kadlunga Proprietors and Others v Electricity Trust of SA and Others.[41]
7. In the course of her reasons, her Honour referred to the judgment in Perpetual Trustees (WA) Ltd v Equuscorp Pty Ltd (Perpetual Trustees),[42] as authority for a statement of principle that it would not be fair to allow a party to rely upon privileged communication which influenced the party's state of mind when making a relevant decision, and to then withhold that privileged communication, with the result that, in such circumstances, the privilege is waived.[43]
8. After referring to the judgment of Dean, Dawson and Gaudron JJ in Goldberg v Ng,[44] the Court in Perpetual Trustees stated:

The authorities show that the underlying principle for imputed waiver is that there has been some conduct on the privilege holder's part whereby it becomes unfair to maintain the privilege.[45]

1. That statement refers to the conduct as being the relevant consideration rather than the state of mind of the party seeking to invoke the privilege.
2. Kelly DPJ subsequently ordered the council to file an affidavit verifying its list of documents via the relevant officer.[46] An appeal from those decisions was dismissed by the Full Bench.[47]
3. The principles related to implied waiver were considered by the Full Court of the Federal Court of Australia in Commissioner of Taxation v Rio Tinto Limited.[48] In a dispute relating to a determined taxation liability, the Commissioner claimed privilege over some documents. The Court held that the correct approach to implied waiver is not to enquire as to the Commissioner's state of mind but whether he has put the contents of otherwise privileged communications in issue in the litigation. The Court stated:

... the question is not whether the Commissioner has put his state of mind in issue but whether he has directly or indirectly put the contents of the otherwise privileged communications in issue in the litigation, either in making a claim or by way of defence. Put another way, to adapt Allsop J's language in DSE, has the Commissioner (being the privilege holder) made an assertion as part of his or her case in the litigation that lays open the privileged documents to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and that the maintenance of the privilege?[49]

1. In Mann, a majority of the High Court stated the principle of implied waiver and referred to a consideration of the conduct of the party claiming the privilege:

Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.... What brings about the [implied] waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and the maintenance of the confidentiality; Not some overriding principle of fairness operating at large.[50]

1. The majority went on to state that where such inconsistency arises, it does not matter that the privilege holder did not subjectively intend to lose the benefit of the privilege.[51]
2. I would respectfully conclude that it is the conduct of the party seeking to invoke the privilege that is to be analysed rather than the state of mind of that party.

1. Whilst a party may raise public interest immunity, it remains for the Court to determine whether such immunity exists.[52] The courts have recognised that a tension may arise between areas of public interest. I have referred, earlier in these reasons, to the general public interest in the courts having before them all relevant evidence to determine the issue to be tried. There may also be a public interest in not disclosing certain documents. In such circumstances, the Court is to determine where the balance of public interest lies. In his judgment of Sankey, Gibbs ACJ stated:

The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer, as follows:

"There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done."

It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a Court of Justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies.

1. In R v Mason,[53] Bleby J referred to public interest immunity as a rule of law and not a matter of discretion. As such, it is unable to be waived.[54]
2. In CPB Contractors Pty Ltd v State of SA,[55] the Court of Appeal referred to the requirement of identification of the particular public interest raised. It stated:

Determining an immunity claim requires identification of the particular public interest raised, as well as whether the claim is concerned with the particular contents of documents, or with documents of a particular class. The classification into "contents" and "class" claims has often been used, though it is "rough and imprecise" and not "watertight". Moreover, "As to class claims, the view now accepted is that there is... a heavy burden of proof on any authority which makes such a claim". There will usually be no call for inspection where the claim is not based on the contents of the documents. Where a "class" claim rather than a "contents" claim is in issue, public interest immunity claims may therefore be upheld without addressing what the documents contain because the law recognises that they fall within a class which it is in the public interest should be immune from disclosure.[56]

1. It is only if a prima facie case of immunity is established that it will be necessary for the Court to evaluate and to balance the competing public interests.[57]
2. In determining the issue, the Court may inspect the documents to assist it. It is not necessary to address the common law authorities in the light of s 64(2) of the SAET Act. A distinction has been drawn between criminal and civil claims:

...[T]here may be a greater preparedness to inspect disputed documents in criminal cases, at least where it appears "on the cards" that the documents will materially assist the defence of a person whose liberty is at stake. By contrast, in civil cases, as the Full Court explained in Spencer v Commonwealth, once it is determined that there appears to be a valid claim of public interest immunity based on cogent evidence, and no apparent basis for concluding that there is a "sufficient demand of justice" calling for disclosure, "there will be no warrant for inspection... the prima facie position of protection from disclosure will prevail".[58]

1. The Town of Gawler submitted that many of the documents sought by Mr Fulcher comprised communications between the Town of Gawler and solicitors it retained. It was contended that the dominant purpose of the communications was to enable legal advice regarding allegations of misconduct against Mr Fulcher and the Town of Gawler's subsequent disciplinary process. It was submitted that legal professional privilege exists to ensure that clients can obtain candid and comprehensive legal advice without fear that those communications will later be disclosed. It was submitted that in this case, the compelled disclosure would erode that protection and undermine confidence in the legal system.
2. In relation to the claim of public interest immunity, the Town of Gawler submitted that many of the documents sought by Mr Fulcher contain disclosures made by employees of the Town of Gawler which were obtained under assurances of strict confidentiality. It was submitted that the assurances made of confidentiality is integral to the integrity and effectiveness of the investigation process. The Town of Gawler contended that a subsequent disclosure of such documents would discourage future participation in workplace investigations in a candid and effective manner which would result in an impairment of the Town of Gawler's ability to manage future incidents of alleged employee misconduct and its ability to comply with work health and safety obligations. Further, it contended that disclosure of the documents would expose employees to the risk of intimidation or harassment and that is particularly in the circumstances of Mr Fulcher's previous serious offending.
3. The relevant public interest was identified as preserving confidentiality and ensuring effective governance and workplace safety. The Town of Gawler recognised a general public interest in the Tribunal determining the issues before it by reference to all relevant evidentiary material but submitted that upholding confidentiality is essential to protecting employee safety, maintaining the integrity of workplace investigations and preserving the Town of Gawler's ability to fulfil its statutory obligations. In those circumstances it was submitted that the balance requires non-disclosure of the documents sought by Mr Fulcher.
4. Council for the Town of Gawler referred to the judgment of the NSW Civil and Administrative Tribunal in Ansoul v City of Sydney.[59] In that case, the City of Sydney Council commissioned an independent investigation into claims of bullying, harassment, coercion and intimidation within the Council. The Tribunal held that if the resultant report were to be released then staff would be discouraged in the future from participating in similar investigations and noted assurances could not be given that information provided by staff would remain confidential. The Tribunal held that the disclosure of the report would prejudice the supply to the Council of confidential information that facilitates the effective exercise by the Council of its functions.
5. The LGA supported the submissions of the Town of Gawler. It also contended the documents sought by the applicant are not directly relevant to an issue raised in the proceedings. The LGA submitted the documents sought by Mr Fulcher are not directly relevant to a determination by the Tribunal of any of the issues or contentions raised by Mr Fulcher in his Statement of Facts Issues and Contentions. The LGA submitted that the determination at trial of the issues raised will be primarily by reference to the evidence of expert medical witnesses. In its outline of argument, the LGA stated:
   1. Nowhere in the pleadings does the Applicant assert or contend that there was no basis to terminate him from his employment for serious and wilful misconduct. Nowhere in his pleadings does he contend the investigation was flawed. Nowhere does he contend that Council engaging lawyers to assist with or conduct the investigation or seeking legal advice caused or contributed to his injury.
   2. Instead, he challenges the time taken by the Council to provide details of the allegations against him, the limited time allowed for his response, the "tone" of the allegation letter and a failure to follow policy and procedure in the disciplinary process.
6. Mr Fulcher submitted an issue to be determined at trial is whether he has proven that any psychiatric injury of which his employment was the most significant contributing cause, has not arisen wholly or predominantly from a disentitling event as set out in s 7(4) of the RTW Act. Reference was made to paragraph four of the issues identified by the LGA in its Statement of Facts Issues and Contentions as follows:
   1. If so, were the decisions or actions reasonable and taken in a reasonable manner under section 7(4)(a), (b), or (c) of the RTW Act?
7. Counsel for Mr Fulcher referred to the judgment of Bleby J in Keen v Workers Rehabilitation and Compensation Corporation,[60] where his Honour stated that whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action.
8. Mr Fulcher drew a distinction between the administrative function of taking statements from witnesses and the provision of legal advice. He submitted that, in this case, the solicitors exercised two different functions. It was contended that the documents being a summary of the statements taken by a solicitor of witnesses, did not constitute legal advice and would not be the subject of legal professional privilege. Mr Fulcher submitted that the initial instructions were for the solicitors to conduct an investigation which may have then been used for various purposes. It was submitted that the dominant purpose at that time was to conduct the investigation and not to provide legal advice.
9. In relation to the claim of public interest immunity, Mr Fulcher submitted that a promise of confidentiality associated with the investigation, could not properly form a category of public interest immunity.
10. Mr Fulcher submitted that weight should be given to the principle of open government and transparency in decision making and referred to s 8 of the Local Government Act 1999 (SA) which provides that a Council must act to uphold and promote observance of the principle of open, responsive and accountable government.
11. Mr Fulcher submitted that there is a public interest in councils investigating possible misconduct affording the person who is the subject of the investigation natural justice and procedural fairness. As I understood the submission, that person should know the detail of any complaint raised and the person who has raised the complaint so that the Council may receive submissions in relation to all relevant matters including possible motivation for the complaint being raised where it is being refuted.
12. Mr Fulcher submitted that his past offending, referred to as a basis for that public interest immunity, occurred some nineteen years ago and there is no evidence of any other asserted misconduct in a period of some nine years of service with the Town of Gawler leading to its investigation.
13. In the event of a finding of legal professional privilege Mr Fulcher submitted the Tribunal should find that the Town of Gawler, by its conduct, has waived that privilege and that factor would also be relevant to a consideration of the claim of public interest immunity.
14. Mr Fulcher submitted that it would be unfair to allow the Town of Gawler to maintain a privilege over documents that formed at the basis of its conclusion of misconduct warranting a termination of the contract of employment and then allow its effective insurer, the LGA, to assert in the substantive proceeding that Mr Fulcher has failed to prove that his claimed psychiatric injury has not arisen wholly or predominantly from a disentitling event in s 7(4) of the RTW Act.

1. It is convenient to address first the submission of the LGA that the documents which are the subject of the applications are not directly relevant to a material issue in the proceeding. It is unclear as to whether the Town of Gawler supported that submission as counsel for the Town of Gawler stated she relied upon the submission advanced by counsel for the respondent in relation to that matter.[61]
2. In Maiolo v Return to Work Corporation of South Australia,[62] I summarised the legal principles relating to the direct relevance test:

In Bendick v Return to Work Corporation of South Australia and Anor... Calligeros DPJ analysed authorities relevant to the meaning of "direct relevance" in determining the documents which are properly the subject of disclosure and the reason for that test.

As to the meaning, Calligeros DPJ referred to the judgement of Doyle CJ in Quenchy Crusta Sales Pty Ltd v Logi-tech Pty Ltd and Anor and in particular:

The point is that a document would not be directly relevant if, rather than tending to prove an issue on the pleadings, it merely tends to prove something may be relevant to an issue.

In Wright v South Australia Police, Kelly DPJ also referred to the later judgement of Duggan J in Channel 7 Adelaide Pty Ltd v Lane and Hurley. Kelly DPJ then distilled the relevant principles as follows:

1. The requirement that documents be directly relevant abolishes the application of the "Peruvian Guano" test of discovery;

2. It is not possible to state in comprehensive terms the meaning of "directly relevant", but indirect relevance is not enough;

3. Distinguishing between direct and indirect relevance is not always easy;

4. "directly relevant" is not limited to documents which of themselves are proof of a fact in issue;

5. Documents which are not themselves proof of a fact in issue but are a piece of circumstantial evidence tending along with other evidence, to prove the fact in issue, can be directly relevant.

As to why the direct relevance test has, in recent times, been adopted as the test for disclosure of documents, Calligeros DPJ in Bentick referred to another passage from the reasoning in Quenchy Crusta Sales where Doyle CJ stated:

The reason for the change in the Rule are well known. Previously, the obligation to make discovery was so wide that in many cases discovery had become onerous and costly. In some cases many documents were collected and catalogued and listed, although of no actual importance in the case.[63]

[citations omitted]

1. The claim form submitted by Mr Fulcher identifies the circumstances causing his work injury as "stressors from other individuals at work". He stated that he was performing his normal administrative duties as he experienced those stressors. The claim form is dated 15 September 2024. The claim for compensation was determined by letter dated 1 October 2024. The decision maker observed that the claim and the certificate of incapacity in support of the claim for weekly payments were submitted whilst Mr Fulcher was suspended pending the outcome of a disciplinary investigation by the Town of Gawler. The decision maker noted that Mr Fulcher's employment was terminated by the Town of Gawler on 23 September 2024. After referring to s 7 of the RTW Act, the decision maker stated:

On the basis of our investigations we have drawn the conclusion that your claim for compensation is a response to a disciplinary process initiated by the Council and resulting in your termination and we therefore consider that if you suffer a psychiatric injury and employment was the significant contributing cause (which is not admitted) then your injury likely arises wholly or predominantly from a designated action or decision which disqualifies your claim pursuant to s 7(4) of the [RTW Act]...

[emphasis added]

1. One of the issues raised by Mr Fulcher in his Statement of Facts Issues and Contentions is whether his claimed psychiatric injury arose wholly or predominantly from a disentitling event under s 7(4) of the RTW Act. In his contentions, Mr Fulcher asserts that he has suffered a psychiatric injury, that his employment was the most significant contributing cause, and related to s 7(4) of the RTW Act, contends:

And/or in the alternative, the applicant asserts that to the extent that his condition was caused by his suspension and dismissal, such action was not reasonable action, nor was it taken in a reasonable manner. In particular, the applicant contends that the process adopted by the Council was unreasonable because of:

1. The large amount of time in which the applicant was suspended without knowing the allegations against him.
2. The limited window of opportunity the applicant was given to respond to the allegations, with the Council knowing he was unwell.
3. The conclusionary statements of the allegation letter (see above Facts at paragraph 20).
4. The failure to follow the Council's own policy and procedures in relation to the disciplinary procedure.

1. Paragraph 20 relating to the relevant facts states:

The suspension letter contained the following statements:

1. "The purpose of this letter is to... inform you that, subject to your response to the allegations, I have formed the view that your continued employment with Council may no longer be tenable in view of your alleged conduct."
2. "Your alleged conduct detailed in this letter is particularly disturbing..."
3. "Your concerning and behaviour (sic) is unsatisfactory and acceptable (sic) for a Senior Manager. The impact of your poor behaviour is widespread and has had a negative impact on all your teams."
4. "Further, your use of the term "dog" in reference to [redacted] is completely unacceptable."

1. In its Statement of Facts Issues and Contentions, the LGA acknowledges that Mr Fulcher pursued a claim for unfair dismissal remedy and was legally represented. In its contentions, the LGA refers to and relies upon s 7(4) of the RTW Act. It contends the actions taken relating to the investigation into allegations of serious and wilful misconduct by Mr Fulcher and the findings of the Town of Gawler of serious misconduct warranting dismissal gave rise to a conclusion that Mr Fulcher is not entitled to benefits under the RTW Act. The LGA refers to s 8(2)(b) which provides:

8 - Effect of misconduct etc

...

(2) However, a worker will not be entitled to receive any services or benefits under this Act in relation to an injury if -

(b) it is established on the balance of probabilities that the injury is wholly or predominantly attributable to -

(i) serious and wilful misconduct on the part of the worker; or

(ii) the influence of alcohol or a drug voluntarily consumed by the worker (other than a drug lawfully obtained and consumed in a reasonable quantity by the worker).

1. As has been noted earlier in these reasons, specific allegations of misconduct were raised with Mr Fulcher in the Show Cause letter. The Town of Gawler, in its written correspondence to Mr Fulcher both raised specific allegations and variously set out, in quotation, what was claimed to have been reported to the Town of Gawler by Mr Fulcher's co-workers. Mr Fulcher denied the allegations raised against him. Implicitly, part of his case is that the allegations raised against him were unsubstantiated and that there was not a proper foundation for the decision to terminate his contract of employment on the basis of serious and wilful misconduct.
2. One of the issues the Tribunal will need to consider and address at trial is the scope of the disentitling provisions in s 7(4) of the RTW Act. Subsection 7(4)(a) of the RTW Act refers to "reasonable action taken in a reasonable manner by the employer to transfer, demote, discipline, counsel, retrench or dismiss the worker ...". Assuming the Town of Gawler correctly reported to Mr Fulcher what was stated by co-workers, was it a reasonable decision to terminate Mr Fulcher's employment if he is able to prove that the statements provided by the co-workers were either false or misleading? Mr Fulcher denied the allegations. It is at least arguable that if there was not a sound foundation for the finding of misconduct then the decision to dismiss Mr Fulcher was not reasonable action within the ambit of s 7(4)(a) of the RTW Act.
3. The onus of proving serious and wilful misconduct, within the ambit of s 8(2)(b)(i) of the RTW Act is upon the LGA.[64] It is difficult to envisage upon the current evidence before the Tribunal how the LGA could discharge that onus or even present a prima facie case without presenting evidence from the co-workers interviewed by the solicitors appointed by the Town of Gawler and to which the documents that are the subject of the applications before this Tribunal, relate.[65] In accordance with s 98(2) of the RTW Act the Tribunal conducts a review of the reviewable decision as a hearing de novo. The Tribunal is not bound by the finding of misconduct by the Town of Gawler.
4. In any event, the documents that are the subject of the applications for directions are directly relevant to the LGA's pleading by reference to s 8(2)(b) of the RTW Act. The documents are also directly relevant to the issue of whether a disentitling event, as set out in s 7(4) of the RTW Act, applies. The documents tend to prove an issue raised or constitute a piece of circumstantial evidence, tending along with other evidence, to prove a fact in issue.

1. Before addressing the submissions relating to the application of the dominant purpose test, there is an aspect of the involvement of Mellor Ollson Lawyers relevant to the claim by the Town of Gawler of legal professional privilege to be at least observed. It relates to whether, having been appointed to undertake a factual investigation and to make findings of fact, those solicitors could also maintain independence and provide legal advice the subject of legal professional privilege over the same subject matter. Some judgments have referred to the importance of the independence of the solicitor providing the legal advice to attract legal professional privilege. In Waterford v Commonwealth,[66] Brennan J addressed the purpose of legal professional privilege and then stated:

If the purpose of the privilege is to be fulfilled, the legal advisor must be competent and independent. Competent, in order that the legal advice be sound and the conduct of litigation be efficient; independent, in order that the personal loyalties, duties or interests of the advisor should not influence the legal advice which he gives or the fairness of his conduct of litigation on behalf of his client. If a legal advisor is incompetent to advise or conduct litigation or if he is unable to be professionally detached in giving advice or in conducting litigation, there is an unacceptable risk that the purpose for which the privilege is granted will be subverted.[67]

1. In Seven Network Ltd v News Ltd,[68] Tamberlin J observed:

The authorities recognise that in order to attract privilege the legal advisor should have an appropriate degree of independence so as to ensure that the protection of legal professional privilege is not conferred too widely.[69]

1. Whether the requisite degree of independence was lacking in this case when Mellor Ollson Lawyers conducted a factual investigation, proceeded to make findings of fact where Mr Smith did not depose to having communicated with Mr Fulcher, and subsequently provided legal advice to the Town of Gawler as to disciplinary action that may be appropriately taken against Mr Fulcher, was not raised by any party. In those circumstances, it will not be addressed further.
2. Various expressions were used by Mr Smith to describe the purpose of the investigation undertaken by him. In paragraph 9 of his affidavit he referred to having been engaged "to undertake a confidential investigation into concerns that had been raised about the applicant". In paragraph 7, he similarly referred to the Town of Gawler having engaged the firm Mellor Ollson on or around 8 August 2024 to undertake a confidential workplace investigation. There is no reference in those paragraphs to the Town of Gawler having sought, at that time, legal advice. In paragraph 9 Mr Smith referred to having mentioned to witnesses interviewed that if disciplinary action was taken against Mr Fulcher, then they would be deidentified "as far as possible".
3. In paragraph 10, Mr Smith stated that a confidential investigation report was prepared and then produced to the Town of Gawler. He stated the report detailed the information obtained from those that were interviewed, findings of fact made and "recommendations". Mr Smith did not explain the nature of the "recommendations" provided. In paragraph 12, where the structure of the affidavit appears to be a chronological account of the involvement of the lawyers, Mr Smith stated:

Following the provision of our confidential investigation report, we provided the Town of Gawler with legal advice regarding the findings of fact and the subsequent disciplinary process against the applicant, which ultimately led to his dismissal. [Emphasis added.]

1. No evidence was presented directly from any officer from the Town of Gawler.
2. I find that there were at least two steps in the process of the appointment of Mellor Ollson Lawyers by the Town of Gawler. The first step related to the investigation and the preparation of the investigation report. It appears from the evidence that in or about the beginning of August 2024 the Town of Gawler had some concerns about the conduct of Mr Fulcher at work. It identified two areas for investigation. The first was whether he had behaved inappropriately towards some co-workers and the second was whether he was demonstrating leadership. The limited evidence presented indicates that the concerns were at a general level. The evidence does not support a finding that the initial appointment of the lawyers, as at 8 August 2024, was to obtain legal advice. The evidence supports a finding that, at that time, the solicitors were appointed to undertake an investigation that would involve the interview of witnesses and the provision of a factual report summarising the information gathered from the interviews, what findings of fact could be made at that time and recommendations as to any further investigation that should be undertaken. I make that finding as to the initial appointment of the lawyers.
3. The subsequent characterisations by Mr Smith, at paragraph 52 that the dominant purpose of the handwritten notes of the investigation was to provide legal advice, and at paragraph 55, that the dominant purpose of the investigation report was to provide advice and was different to the purpose of the investigation, are not consistent with paragraphs 7, 9, 10 and 12 and the inferences drawn from those paragraphs. The subsequent characterisations are erroneous. The form of a statement on the front of the investigation report that it is legally professionally privileged and is provided for the purpose of providing legal advice cannot prevail due to the substance of what occurred. Similarly, a reference to findings of fact to assist with complying with obligations under work health and safety legislation does not change the purpose from the provision of facts in an investigation report to legal advice at that time.
4. If I am in error and some legal advice was also sought in early August 2024, the evidence has not persuaded me that the dominant purpose, for the creation of the documents to the time of the delivery of the investigation report to the Town of Gawler, was to provide and receive legal advice. There was also no suggestion of anticipated or contemplated litigation at that time.
5. I find that after receiving the report, the Town of Gawler sought legal advice as to whether the information received and the findings of fact made by the solicitors could substantiate the taking of disciplinary action against Mr Fulcher. It is likely the advice also related to the steps appropriately to be taken to treat Mr Fulcher in a procedurally fair manner where disciplinary action, including a dismissal, could be a possible outcome.
6. It is convenient to now reach conclusions by reference to the classes of documents in accordance with the categories set out in the affidavit of Mr Smith. The conclusions reached follow the analysis and findings made.
7. In first category are the four file notes relating to the initial complaints leading to the investigation undertaken by the solicitors. Legal professional privilege does not apply to those documents.
8. Category four relates to the correspondence between the Town and Gawler and its lawyers relating to the conduct of the investigation. Category five relates to the interviews that were conducted in the investigation and category six relates to the investigation report detailing the outcome of the investigation. These documents are not the subject of legal professional privilege.
9. Category three relates to emails between Ms Tobin of the Town of Gawler and solicitor Mr Love concerning legal advice after the provision of the investigations report relating to the steps to be taken to treat Mr Fulcher in a procedurally fair manner and aspects of the disciplinary process. The dominant purpose was to obtain legal advice and they are the subject of legal professional privilege.
10. Category seven relates to correspondence between the Town of Gawler and its lawyers regarding the outcome of the investigation. The letter from Mr Love to Ms Tobin dated 25 August 2024 which attached a copy of the investigation report has not been proven to be the subject of legal professional privilege. The subsequent documents relate to the disciplinary process and the dominant purposes was for the solicitors to provide legal advice in relation to that process. Those documents are the subject of legal professional privilege.
11. No documents within the scope of category two or eight have been identified.

1. If I am in error in relation to my finding that legal professional privilege does not apply to the documents created up to and including the provision of the investigation report by the solicitors to the Town of Gawler, then it becomes necessary to address whether there has been a waiver of the legal professional privilege in relation to those documents.
2. There is some context. As noted earlier in these reasons, whilst the Town of Gawler has not sought to be heard in the substantive proceedings, it is a party. In paragraph 4 of these reasons, I referred to aspects of the incidence of liability and legal obligation. The evidence before the Tribunal does not disclose whether there is any other potential liability for the Town of Gawler pursuant to its arrangement with the LGA. The LGA relies upon the investigation undertaken at the request of the Town of Gawler, and its findings, to support its case.
3. The Town of Gawler disclosed to Mr Fulcher what was reported by witnesses in the course of the investigation. A number of direct quotations were provided. As noted in paragraph 106 of these reasons, in at least one case, a potential witness was named. Mr Fulcher denied any misconduct and denied specifically the allegations raised against him. The disclosure by the Town of Gawler of the detail of the statements made by witnesses, put in issue in the litigation what occurred. The disclosure of the information lays open the privileged documents to scrutiny. An inconsistency arises with the making of the allegations to Mr Fulcher together with the disclosure of detail of the statements made by witnesses interviewed and the maintenance of the privilege. Considerations of fairness, as perceived, between the conduct of the Town of Gawler and its maintenance of the confidentiality, arises. It has been unfair for the applicant to have been required to present his case in relation to the finding of misconduct without having the full context of what appears to be selected quotations. I find that, by its conduct, the Town of Gawler waived any privilege that may have applied to the documents brought into existence relating to the investigation and until the investigation report was provided by the solicitors to the Town of Gawler. I find, in relation to the documents where legal professional privilege has been established, that there has been no conduct, express or implied, by the Town of Gawler, that would amount to a waiver of that privilege.

1. The first step in the process is to ascertain the subject purpose or purposes for making the communication in question. Public interest immunity has been claimed in relation to email exchanges between Ms Tobin and solicitor, Mr Love relating to the witnesses to be interviewed in the investigation, the notes of the interviews conducted by the solicitors and the investigation report. The purpose was submitted by the Town of Gawler to be to preserve the integrity of the investigation process which provided an assurance of confidentiality in order to ensure the Town of Gawler fulfilled its statutory obligations and employee safety.
2. The second step is to determine if it is, in all the circumstances, the predominant public interest. The submitted assurance as to confidentiality was qualified. As noted in paragraph 116 of these reasons, the witnesses interviewed were told that if disciplinary actions were taken against Mr Fulcher then they would be deidentified "as far as possible". This did not amount to an assurance of confidentiality. The witnesses would have reasonably understood that their identity may need to be disclosed to Mr Fulcher. The submissions did not clearly address, if the concern referred to was action in retribution where Mr Fulcher was in a managerial role, why there would now be a concern of disclosure of identity where Mr Fulcher has been dismissed. In cases where there is not a dismissal, concerns of reprisals may be addressed by making it clear to all concerned that any report of such action would be promptly and effectively dealt with. To the extent the Town of Gawler referred to Mr Fulcher's past conduct, I accept the submissions of Mr Fulcher that the conduct was some nineteen years ago, and the evidence does not raise any issue of physical abuse toward staff in some nine years of employment leading to the dismissal. At its highest, there is a reference to one employee interviewed having reported that Mr Fulcher spoke to employees in an aggressive manner. I also note in Mr Fulcher's written response to the Show Cause letter, he stated that he declared his past criminal conviction at his initial interview for employment with the Town of Gawler and that has not been refuted. The inference to be drawn is that the circumstances of the prior criminal conviction was not an impediment to securing employment with the Town of Gawler. There is a lack of foundation for the concern suggested by the Town of Gawler to arise in this case.
3. The Town of Gawler relied upon the decision of the Civil and Administrative Tribunal of NSW in Ansoul v City of Sydney (Ansoul).[70] The facts were materially different to those before this Tribunal. In that case the City Rangers unit of the Council submitted a grievance to the Workforce and Information Services unit of the Council. The Council appointed Warfield and associates to undertake an investigation of the City Rangers unit with a view to the Council then being able to identify and resolve concerns of bullying, harassment and claims of coercion and intimidation that that had been made. Mr Warfield conducted 56 interviews and they were primarily with City Rangers staff. He then provided a report to council which included some recommendations for future action. Mr Ansoul made application for access to the Warfield report, including drafts, recommendations made by Mr Warfield and any redacted versions of the Warfield report. The City of Sydney initially refused access to the Warfield report and the recommendations made to council. Following a Council meeting, the recommendations made to council, included in a council Report were released to Mr Ansoul. There were no drafts of the Warfield report. The Council subsequently released a copy of the Warfield report which disclosed further information but there remained some information that was not disclosed to Mr Ansoul.
4. Mr Ansoul's application to the Tribunal was for a review of a decision made by the council under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act). The objects of the GIPA Act are set out in s 3 and include open government to the public. Section 12 provides a general public interest in favour of disclosure of government information. Section 13 incorporates a public interest test. It states that there is an overriding public interest against disclosure of government information for the purposes of the GIPA Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
5. Section 15 of the GIPA Act sets out the principles that apply to public interest determination. It provides:

15 - Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against the disclosure of government information is to be made in accordance with the following principles:

(a) Agencies must exercise their functions so as to promote the object of this act.

(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

1. The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act.
2. The decision in Ansoul involved an analysis of the statutory provisions and their application to the particular circumstances.
3. The Tribunal stated its first task was to identify the public interest considerations in favour of disclosure. Its second task was to identify the public interest considerations against disclosure. Its third task was to determine the weight of the public interest considerations in favour of disclosure, those against disclosure and then determine where the balance between those interests lies. The Tribunal identified the public interest in favour of disclosure by reference to s 12 of the GIPA Act. The interest was expressed at a general level of the functions performed by the City Rangers unit. The public interest considerations against disclosure were identified by reference to the criteria set out in the table in s 14 of the GIPA Act.
4. The decision in Ansoul is not authority for a broader proposition that there is, at common law, a single public interest, related to an investigation, in a local council maintaining confidentiality of documents associated with an investigation that it undertakes. In this case the Town of Gawler's investigation related to the conduct of one employee who had a legitimate interest in the outcome of the investigation.
5. It was not suggested by the Town of Gawler that the disclosure of the documents would result in the disclosure of a form of secret methodology of investigation where disclosure would compromise its ability to investigate matters in the future.[71]
6. Where there is an investigation relating to the conduct of an individual within a council, there is not a single public interest in the maintenance of confidentiality of witnesses who provide information, to preserve the integrity of the investigation process. The Town of Gawler accepted, by its conduct, that Mr Fulcher was entitled to be heard in relation to the allegations raised against him. In such circumstances there is a public interest in the person complained of not only being heard, but being effectively heard. There is a public interest in the outcome of an investigation which may result in disciplinary action resulting in the correct outcome. That is most likely when all relevant information is before the decision maker. Without providing Mr Fulcher with the full detail of the information provided by the witnesses, and their identity, his ability to respond to the allegations raised in this case may have been compromised. Mr Fulcher made the point in his response to the Show Cause letter that, in respect of a number of the allegations, the information provided was insufficient for him to fully address the allegation raised. By not identifying the individuals who were interviewed and providing the various statements relied upon, Mr Fulcher did not have the opportunity to address matters related to the individuals and which could be relevant to the evaluation of the reliability of the information conveyed. These are matters relevant to the integrity of the process raised by the Town of Gawler as being an aspect of the claimed public interest. They are especially relevant where Mr Fulcher contends he was subjected, by these co-workers, continually to disruptive and obstructive behaviour. He asserted he was being undermined. As already noted, the evidence does not reveal that any of the witnesses interviewed expressed opposition to disclosure of the information they provided of their identity in the circumstances of the current proceedings. These are also matters relevant to the issues to be tried in the substantive proceedings. For relevant action to constitute a disentitling event under s 7(4) of the RTW Act, the Court is to address not only if the action was reasonable but also if the action was taken in a reasonable manner. It is at least arguable that if Mr Fulcher was not provided with information to enable him to be effectively heard then the action was not taken in a reasonable manner. This will require a construction of the scope of the "action" for the purpose of the provision.
7. The Town of Gawler raised a concern that the disclosure of the documents, resulting in the disclosure of the identity of those raising complaints, can discourage others from raising complaints in the future. There was a lack of foundation in the evidence presented in this case. I accept that generally in relation to investigations of misconduct of an employee at a managerial level, there may be some reluctance by some members of staff under that person's supervision to come forward and provide a statement. There may be circumstances that give rise to a predominant public interest not to disclose the identity of the witness or the complete information provided. Every case is to be addressed by reference to its particular circumstances. The Tribunal acts in accordance with the principle of open justice.[72] These reasons for decision will be published and be publicly available. I am not persuaded that the disclosure of the documents in the circumstances set out in these reasons is likely to discourage appropriate disclosure in the making of complaints, and the investigations thereof in the future.
8. It is convenient to also refer to some matters addressed earlier in these reasons. As noted in paragraph 97 of these reasons, Mr Fulcher referred to the obligation of the Town of Gawler to observe the principle of open, responsive and accountable government. In paragraph 83, I referred to the statement of principle in Sankey that a court of justice in performing its functions should not be denied access to relevant evidence. That principle is given statutory force in the SAET Act. Sub-section 36(2)(a) directs the Tribunal to take all practicable steps to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all the relevant facts in issue in any proceedings. Sub-section 37(4) empowers the Tribunal to give a direction requiring a party to produce a document or other material, or to provide information, to the Tribunal or another party.
9. The LGA advances a case that Mr Fulcher engaged in serious and wilful misconduct on the basis of the conclusions reached by the Town of Gawler based upon the content of the documents related to the investigation conducted by the lawyers. Mr Fulcher contends the failure to disclose the documents sought has compromised his ability to be able to address the allegations raised against him. The extent to which there has been disclosure of information to Mr Fulcher, which I have found amounts to a waiver of legal privilege, is also a relevant consideration.
10. The Tribunal is required to afford Mr Fulcher natural justice and procedural fairness.
11. I would conclude that, in the circumstances of this case, the public interest in the disclosure of the documents to Mr Fulcher, so that he may properly and fully present his case and allow the Tribunal to discharge its statutory functions, is the predominant public interest. Public interest immunity has not been established.

1. The other party, the Town of Gawler is to both disclose and produce to the applicant the documents in categories one, four, five and six in the applications for directions and the letter from Mr Love to Ms Tobin dated 25 August 2024 within 7 days.

[1] Sections 64(5)-(6) of the RTW Act. But see also s 64(11).

[3] See, for example, s 42(2)(b) of the South Australian Employment Tribunal Act 2014 (SA) (the SAET Act).

[12] [2007] SASC 138.

[13] [2002] HCA 49; (2002) 213 CLR 543.

[15] [1999] HCA 67; (1999) 201 CLR 49 at 73 [61] per Gleeson CJ, Gaudron and Gummow JJ.

[16] [1976] HCA 63; (1976) 135 CLR 674.

[17] Ibid 685. The significance of the relevant communication being confidential was also referred to more recently by the Full Court in Players Pty Ltd (in liq) v Clone Pty Ltd [2013] SASCFC 25 at [123] (Gray, Blue and Stanley JJ).

[18] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 547-549 (Brennan CJ); at 544 (Dawson J); at 562 (Toohey J); at 576 (Gaudron J); at 586 (McHugh J).

[19] [1999] HCA 66; (1999) 201 CLR 1.

[22] [2004] FCAFC 122; (2004) 136 FCR 357.

[23] Ibid [41]-[48] per Finn J; at [105]-[107] per Stone J.

[24] [2002] VSCA 59; (2002) 4 VR 332.

[25] Ibid [9] per Batt JA (with whom Charles and Callaway JJA agreed).

[26] Grant v Downs supra at p 682 (per Stephen, Mason and Murphy JJ).

[27] [2004] NSWSC 380.

[31] Mitsubishi Electric Australia Pty Ltd v Work Cover Authority (Vic) [2002] VSCA 59; (2002) 4 VR 332 at [14]; Pratt Holdings Pty Ltd v Federal Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 at [35].

[32] [2008] VSCA 59.

[33] Ibid [2] (Maxwell P with whom Redlich JA agreed).

[34] Mitsubishi Electric Australia Pty Ltd v Work Cover Authority (Vic) [2002] VSCA 59; (2002) 4 VR 332 at [10].

[35] (1979) 141 CLR 648.

[37] (1998) 81 FCR 526.

[39] [2002] VSCA 59; (2002) 4 VR 332.

[40] [2023] SAET 74.

[41] (1985) 39 SASR 410 at 414-415.

[42] [1999] FCA 925.

[43] Quinn v District Council of Cleve [2023] SAET 74 at [33] (Kelly DPJ). The Court also addressed in Perpetual Trustees, whether the conduct amounted to "consent" for the purposes of s 122(1) of the Evidence Act 1995 (Cth).

[44] [1995] HCA 39; (1995) 185 CLR 83 at 95-96.

[45] Supra [15] (per the Court Ryan, Carr and Marshall JJ).

[46] Quinn v District Council of Cleve (No 2) [2023] SAET 94.

[47] District Council of Cleve v Quinn [2023] SAET 104.

[48] [2006] FCAFC 86 (Kenny, Stone and Edmonds JJ).

[49] Ibid [65]. The reference to "DSE" is a reference to DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499.

[52] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 38 (Gibbs ACJ), 58 (Stephen J, with whom Aickin J agreed at 103), 95-96 (Mason J) (Sankey)

[53] [2000] SASC 161; (2000) 77 SASR 105.

[54] Ibid [52]-[54]. See also Sankey supra at 38-39.

[55] [2024] SASCA 130.

[56] Ibid [124] (Livesey P and David JA).

[57] Alister v the Queen [1984] HCA 85; (1984) 154 CLR 404 at 412 (Gibbs CJ); NSW Public Transport Ticketing Corporation [2011] NSWCA 60, [42] (Allsop P, with whom Hodgson JA and Sackville AJA agreed).

[58] Spencer v Commonwealth [2012] FCAFC 169; (2012) 206 FCR 309, [33].

[60] [1998] SASC 7056.

[62] [2024] SAET 26.

[64] It is raised by the LGA as an affirmative defence to a claim: see Phillips v the Commonwealth [1964] HCA 22; (1964) 110 CLR 347; Martin v Employers Mutual Ltd (2012) 112 SASR 436 at [27]-[28] (White J (with whom Doyle CJ and Anderson J agreed)). This is to be distinguished from the construction of s 7(4) where the different text of s 7(3)(b)(ii) together with s 7(4) mandates an onus upon a worker to prove a negative (see SA Mental Health Services v Margush [1995] SASC 5246; Workcover Corporation of South Australia v Summers (1995) 65 SASR 243).

[65] This is also relevant to public interest immunity issues raised and which is addressed later in the reasons.

[66] [1987] HCA 25; (1987) 163 CLR 54.

[68] [2005] FCA 142.

[71] See in the area of confidential methods of investigation by police in, for example, Conway v Rimmer [1968] UKHL 2; [1968] AC 910; Young v Quin [1985] FCA 18; (1985) 4 FCR 483; Marinovich v DPP [1987] FCR 310; (1987) 14 ALD 315.