Gibbins v Bayside Council

Supreme Court of NSW|2020-12-08|Before: Harrison J

Judgment

HIS HONOUR: Alexander Gibbins was seriously injured on 4 December 2016 whilst riding a water slide at the Botany Aquatic Centre operated by Bayside Council. He commenced these proceedings claiming damages by statement of claim filed on 25 November 2019.
Mr Gibbins issued a subpoena directed to the Council on 1 April 2020 seeking the production of certain documents. The Council originally responded to that subpoena by claiming lawyer and client privilege over some of the documents. In the events that have occurred, that claim is now limited to a single document described as a Report of Professional Engineers dated 28 March 2018. In short, the Council maintains that the report was commissioned following Mr Gibbins' accident for the dominant purpose of the Council's solicitor providing it with legal advice. Mr Gibbins disputes this assertion.
In response to Mr Gibbins' application, the Council relies upon three affidavits affirmed by its solicitor Richard Oldfield on 30 October 2020, 1 December 2020 and 8 December 2020. The relevant parts of those affidavits are as follows.
In his first affidavit, Mr Oldfield said this: "19. Council claims privilege over the documents referred to in paragraph 18 of this affidavit on the following bases: (a) Legal professional privilege (b) Pursuant to section 118 of the Evidence Act 1995 (the Act) (c) Pursuant to section 119 of the Act 20. Council accepts it is required to establish the factual matters necessary to found a claim under sections 118 and 119 of the Act. 21. Without limiting Council's claim of privilege, I note the majority of documents referred to in the Schedule of Privileged Documents and this affidavit are between Council, its agents and third parties engaged by Council in respect of actual and anticipated legal proceedings. 22. Without limiting Council's claim of privilege, I note the majority of documents referred to in the Schedule of Privileged Documents and this affidavit: (a) Discuss the legal proceedings between Council, [Mr Gibbins] or other third parties. (b) Enclose reports obtained and/or discuss advice provided in respect of legal proceedings. (c) Request information required by Council for the purpose of legal proceedings. (d) Request advice from Council's legal advisors in respect of actual or anticipated legal proceedings. 23. On 17 January 2017 I had a telephone conversation with CMA wherein I recommended that a suitable expert be retained to inspect the slides at the Centre, and in particular the Green Slide, and provide a report. 24. On 25 January 2017 I caused to be forwarded to CMA and Council a detailed advice regarding [Mr Gibbins'] incident and repeated my recommendation that a suitable expert be retained to examine the Green Slide and provide a report. 25. I received instructions to retain the expert. 26. I caused a letter dated 24 February 2017 to be forwarded to the expert retaining the expert and providing him with instructions. 27. The expert conducted a view of the Centre and the Green Slide. 28. The expert issued the report of Chartered Professional Engineers dated 28 March 2018."

Mr Gibbins' submissions

Mr Gibbins made the following submissions.
The Council makes the claim for privilege and accepts that it must establish the factual matters necessary to found the claim. In order to maintain that claim, the Council must establish that the Engineer's Report was prepared for the dominant purpose of the Council's solicitor providing legal advice to the Council. Whether a purpose is the dominant purpose is a matter to be determined objectively, but the subjective purpose will always be relevant and may be decisive: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67 at [172]. If the decision to bring the document into existence would have been made irrespective of any intention to obtain professional legal services, it will be doubtful that the purpose of obtaining those services could be regarded as the dominant purpose for its preparation: Sparnon v Apand Pty Ltd (1996) 68 FCR 322; (1996) 138 ALR 735 at 327 per Branson J.
The evidence about the creation of the Engineer's Report is contained in paragraphs 23 to 28 of Mr Oldfield's 30 October 2020 affidavit quoted earlier. Mr Gibbins emphasised that it is clear from this material that Mr Oldfield spoke with the Council's claims manager on 17 January 2017, before he had received any communication from Mr Gibbins' solicitor, which did not occur until 1 March 2017. During that conversation, Mr Oldfield recommended that "a suitable expert be retained to inspect the slides". The references to slides must have been a reference to the green slide and the white slide. Mr Oldfield then forwarded his letter to the engineer on 24 February 2017, again before he had been contacted by Mr Gibbins' solicitor.
In further support of his contention that the Council has not satisfied the dominant purpose test, he referred to uncontested facts deposed to by his solicitor Courtney Poulden in his affidavit of 3 December 2020. Documents annexed to that affidavit indicate the following matters.
On 5 December 2016, Sandy Davies, the Centre's Senior Pool Supervisor, thought that the Centre needed "to have a height/weight limit for the green slide or and only let tall/heavy people on the white slide". The slide instructions were prepared on that day and imposed a maximum height restriction of 170cm. On the same day, Stuart Dutton of the Council emailed Mr Davies saying, "Please close the slide until further notice. Get the appropriate body to come and do a safety inspection".
On 8 December 2016, Doris Lum from the Council emailed various recipients informing them that in "response to this recent incident, it would be imperative that Council approach a suitably qualified consultant to provide guidance on the exact required flow rates for the two slides and whether height, weight and age restrictions be considered for riders of both slides".
On that day, Bobbi Mayne, the Council's Acting Manager Risk and Audit, emailed Ms Lum asking, "has the slide been assessed in the past on its design and type of users etc by any specific industry leadings 'Water Slide Experts'? Lastly, can I please confirm that the slide's operation is still closed pending the investigation?" Also on 8 December 2016, Sandy Davies emailed Mr Mayne saying, "I would like to have another waterslide leading expert have a look and do a report, I was thinking of ringing Wet and Wild Jambaroo to see if they have a company that would do this". On 23 December 2016, Mr Mayne wrote to Ms Davies informing her that "the Green Slide is to remain out of operation until the outcome of the condition and operation assessment is known".
On 1 March 2017, the Council's Manager Recreation and Community Services emailed Ms Davies informing her that "yesterday at the executive meeting they agreed that the continued use of the water slide was too high and have made a decision to close off both slides".
The minutes of an Executive Committee Meeting of the Council dated 16 January 2018 include the following: "In February 2017, following a review of reported incidents for the period 2010-2016, Council's Executive determined to close both slides pending a detailed assessment and audit condition report on the safety of the slides. The report, prepared by an accredited Engineer, provided a detailed analysis of the nature and extent of injuries reported, however, it did not provide a recommendation as to whether the slides should be permanently shut down".
The report referred to in the minutes was the Engineer's Report. It is described in the Council's own document as a "detailed assessment and audit condition report on the safety of the slides". There is no mention of Mr Gibbins' accident. The Engineer's Report is said to be concerned with both slides, not just the Green Slide.
On 9 February 2018, Christine Stamper, the Council's Communications Co-Ordinator, informed Ben James of news.com.au that, "at this time no official decision has been made regarding the future of the slides".
An email to Mayor Sarinovski from Vincenzo Carrabs, the Council's Head of Communications and Events dated 19 February 2018, included a media article which reported, "Botany Pool Waterslides to be Demolished. Botany Aquatic Centre's much-loved water slides will be demolished with Council saying they are too dangerous".
The minutes of an Executive Committee Meeting dated 8 March 2018 include the following: "Recent Community concern has focused around the intended removal of the water slides, which Council closed in early 2017, due to the increase in reported serious accidents and incidents. The slides are at the end of their life, having been in operation since 1983 and their ongoing operation poses a serious commercial risk to Council and a risk to injury for the community".
On 26 March 2018, Stuart McDougall, the Council's Project Manager, Major Projects, sent an email to info@waterslide.net informing, "I have been tasked to demolish the water slide at Botany Aquatic Centre".
Mr Gibbins submitted that these documents reveal that the Council was concerned about the ongoing safety of both slides at the Centre. Both slides were closed in early 2017. The Engineer's Report was discussed at the Executive Committee meeting on 16 January 2018. A decision was made to demolish both slides in February 2018. The Engineer's Report was described by the Council at its Executive Committee Meeting dated 16 January 2018 as a "detailed assessment and audit condition report on the safety of the slides".
Mr Gibbins maintained in these events that the surrounding facts and circumstances strongly suggest that the dominant purpose of the preparation of the Engineer's Report was to consider the ongoing safety of both slides at the Centre. The Council's solicitor was instructed "to act on behalf of Council in respect of the Applicant's incident". There is no suggestion that Mr Oldfield was instructed to provide general legal advice or professional legal services about the safety of the slides and their ongoing use.
Mr Gibbins contended that the surrounding facts and circumstances suggest that the Engineer's Report would have been brought into existence, irrespective of any intention to obtain legal advice from the Council's solicitor about Mr Gibbins' accident. The Council has adduced no evidence that that was not the case. The Council could easily have adduced evidence of its subjective intention in requesting the preparation of the Engineer's Report. It has not done so. Mr Gibbins submitted that the Council's failure to adduce evidence of its subjective intention, coupled with the objective evidence, is "telling".

The Council's submissions

The Council responded as follows.
The Council maintained that Mr Oldfield's evidence at paragraphs [23] to [28] establishes that the Engineer's Report was "obtained on his recommendation and subsequent instructions" from the Council and Claims Management Australasia Pty Ltd, following his retainer by them on 8 December 2016 "in respect of the incident the subject of this litigation on 4 December 2016". It was submitted that the report was "prepared and obtained at the instigation of Mr Oldfield…for the dominant purpose of this litigation" and/or to provide it to Mr Oldfield "for the purpose of legal advice".
The Council emphasised five propositions.
First, the advice of 25 January 2017 and the letter of instruction were clear and determinative of how the Engineers Report came into existence.
Secondly, Mr Oldfield's subjective intention showed that it was "overwhelmingly" the case that the document was prepared for the purpose of both advice and litigation generated by Mr Gibbins' accident.
Thirdly, the final version of the Engineers Report, which I have inspected, makes it plain that the dominant purpose was either the giving of legal advice or in anticipation of legal proceedings.
Fourthly, the Engineers Report would not have come into existence but for the involvement of Mr Oldfield. The Council maintained that it was not generated by the Council or the independent internal decision of officers of the Council.
Finally, the Council submitted that it was quite clear that the present proceedings were anticipated and that they led to the production of both the draft and final versions of the report.

Legislation

Sections 118 and 119 of the Evidence Act 1995 provide as follows: 118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer; or (b) a confidential communication made between 2 or more lawyers acting for the client; or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person; for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. 119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of-- (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

"Dominant purpose"

The issue upon which the current contest is centred is whether the Engineers Report was brought in to existence for any of the dominant purposes to which either s 118 or s 119 of the Evidence Act refers.
The question of whether a document amounting to a communication has been brought into existence for a dominant purpose invites an examination of that purpose and an inquiry about whether there are any other purposes that may be more dominant than the alleged one. This is a question of fact: see Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25 at 66 and 78; Hartogen Energy Ltd v Australian Gaslight Co (1992) 36 FCR 557 at 568.
The use of the word "purpose" is said to invite an inquiry into a state of mind of a creator at the time the document was brought into existence or the communication was made.
What is required is an objective view of all of the evidence, taking into account the author's intention and the person or authority under whose direction it was procured. If the decision to bring the document or the communication into existence would have been made irrespective of any intention to obtain professional legal services and/or for its use in litigation, then it is doubtful whether "the purpose of obtaining professional legal services could be regarded as the dominant purpose for the making of the document": see Sparnon v Apand at 328; Grant v Downs (1976) 135 CLR 674; [1976] HCA 63 at 688.
Young J referred to and applied these considerations in AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571 at [106]-[110] as follows: "[106] Kenny J also said at 478 [30] that where two purposes are of equal weight, neither is dominant in the relevant sense; hence a document is not privileged from production where one purpose for its creation is to obtain legal advice, but there is another equally important purpose. I agree. The same conclusion follows if several purposes are of roughly similar weight, and it cannot be said that one prevails over the other. In Waugh v British Railways Board [1979] UKHL 2; [1980] AC 521 ('Waugh') at 543, Lord Edmund-Davies adopted the dominant purpose test propounded by Barwick CJ in Grant v Downs, and stated that the element of clear paramountcy should be the touchstone. It is not unusual for privilege claims to fail because the evidence does not establish the requisite dominant purpose: see, eg, Kennedy v Wallace [2004] FCA 332; (2004) 208 ALR 424 at 444 [73]; and FCT v Pratt Holdings at 285 [44]-[46] and 287 [56]. [107] The authorities accept that an appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence: see Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 ('Pratt Holdings') at 366 [35] per Finn J. I would add that where the document is immediately communicated by its author to several other persons, including the author's legal adviser, by a circular email (which is the case here), it is also important to ask what was the dominant purpose of that email communication. [108] Ordinarily, the relevant purpose will be that of the author of the document in question, but this will not always be the case. In Grant v Downs, Barwick CJ said at 677: 'Having considered the decisions, the writings and the various aspects of the public interest which claim attention, I have come to the conclusion that the Court should state the relevant principle as follows: a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.' [109] In Mitsubishi Electric Pty Ltd v Victorian Workcover Authority [2002] VSCA 59; (2002) 4 VR 332 at 338 [14], Batt JA (Charles and Callaway JJA concurring) said: 'As summarised by Gummow J in Hartogen Energy by reference to High Court decisions, the purpose, that is the intended use, for which a document is brought into existence is a question of fact. Ordinarily the purpose will be that of the maker of the document, but that will not always be the case, as where some other person, such as a solicitor commissioning the provision of a technical report, calls the document into existence. In that case the relevant intention will not be that of the author but the solicitor: Hartogen Energy. Likewise, in his statement of principle in Grant v Downs Barwick CJ included the dominant purpose of the person under whose direction, whether particular or general, the relevant document was produced or brought into existence.' [110] In FCT v Pratt Holdings, Kenny J observed at 278 [30], correctly in my view, that the dominant purpose must be determined objectively, having regard to the evidence, the nature of the document and the parties' submissions. Kenny J added that the evidence of the intention of the document's maker, or of the person who authorised or procured it, is not necessarily conclusive of that purpose: see GSA Industries (Aust) Pty Ltd v Constable [2001] QSC 180; [2002] 2 Qd R 146 ('GSA Industries') at 153 [28] per Holmes J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 545 per Goldberg J; Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 at 1036 per Slade LJ; Hartogen Energy Ltd (in liq) v Australian Gas Light Company (1992) 36 FCR 557 at 568-569 per Gummow J; and Sparnon v Apand Pty Ltd (1996) 68 FCR 322 at 328 per Branson J. As these cases make clear, it may be necessary to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-making or consultation that lead to the creation of the document and its subsequent communication."

Consideration

Doing the best I can, it seems to me that the Engineers Report was brought into existence for at least one of two purposes. The first purpose was in order to permit the Council to form a view about what if any action should be taken generally with respect to the Botany Aquatic Centre's waterslides, in particular about whether or not it should be demolished: that was a decision that was generated by Mr Gibbins' accident, but only as the (then) latest example of a large series of incidents and accidents involving many other patrons using the Centre. The other purpose was in order that the Council's legal advisers could provide legal advice, either generally or with respect to Mr Gibbins' accident. In either case, whatever might have been the relevant purpose, neither was dominant. This is a case in which I consider that the Engineers Report is not privileged from production. Its creation was not the result predominantly of one of the purposes contemplated by the Evidence Act and there was another equally important purpose. In forming that view, I have had regard to the following.
The communications between or among Council staff with responsibilities in the areas of the Centre management generally and safety in particular make it reasonably apparent that the ultimate fate of the waterslides had become a matter of considerable importance, and one that had attracted local public interest. The discussions at Council level were not limited to, and at one level were not particularly concerned with, the confined issue of legal liability with respect to Mr Gibbins' accident or the need to take steps to obtain legal advice about it and prepare for possible litigation as a result. Even if they were, the production of the Engineers Report was not the result of only that concern. One purpose for the creation of the Engineers Report was to obtain legal advice, but there was another equally important purpose.
In a related sense, I consider that the decision to bring the document into existence would have been made irrespective of any intention to obtain professional legal services. For example, on the day immediately following Mr Gibbins' accident, the Centre's Senior Pool Supervisor was advised by Mr Dutton to "close the slide until further notice" and to "get the appropriate body to come and do a safety inspection". Within three days thereafter, Ms Lum sent an email to various recipients indicating that "it would be imperative that Council approach a suitably qualified consultant to provide guidance on" various integers thought to be possibly relevant to accidents on the slides. Others in the Council expressed similar views. On the same day, Mr Davies emailed Mr Mayne effectively calling for a waterslide expert "to have a look and do a report".
The fact that Mr Oldfield sought to retain an expert on 8 December 2016 seems to me to be unremarkable. An investigation of the factual circumstances relating to Mr Gibbins' accident by a solicitor instructed by the Council's public liability insurer does not mean that the report that was ultimately produced was prepared only or for the dominant purpose of legal advice on that topic. The Council was concerned to obtain a report more generally concerning the wider question of the continued viability of the waterslides. So much is unambiguously apparent from the terms of the report, some of which should be noted: "MANAGEMENT SUMMARY Bayside Council operates two water slides at Botany Aquatic Centre. They are a beneficial asset to the community, but since 2015 there is a rising trend of head injuries occurring on the green (tube) slide. Arising from an accident in late 2016, Norwich Engineering Pty Ltd was briefed to prepare this report. The purpose of this report is to provide Council with guidance on what may be required to ensure safe operation of the slides. The report examines various documents provided in relation to the design, operation and maintenance of the slides. An inspection was carried out by Norwich Engineering and Luke Murphy in March 2017. It is possible that the combination of rider height, water flow rate and physical arrangement (e.g. curve radius) of the green (tube) slide gives rise to an injury mechanism causing relatively serious head injuries to a specific class of patrons. There are 15 principal recommendations in the report. In general, Council is recommended to: a) Complete Risk Assessments in accordance with Australian Standard AS 3533; Amusement rides and devices. b) Prepare a register of corrective actions arising from previous reports, and prioritise those actions. c) Obtain specialist advice as to the safe operating parameters for the slides (e.g. water flow, rider height/weight, use of mats or otherwise). d) Consider some technological enhancements that will improve the safety of the Asset. The white (open flume) slide does not have the same accident history as the green (tube) slide. One option available to Council is to operate the white slide only until the issues with the green slide are resolved. BRIEF Norwich Engineering Pty Limited has been requested to provide an Engineer's report regarding the general condition of the Water Slides at Botany Aquatic Centre, 3D Myrtle St, Botany NSW 2019. The request is in response to an incident that occurred in the slide NSW Reg No. X1291 (Green 1200mm tube) on 4 December 2016. A patron, Mr Alex Gibbon (sic), reported sustaining a head injury while using the slide and received medical attention as a result. The slide is one of two amusement devices operated by Bayside Council (formerly City of Botany Bay Council). One is an enclosed 1200mm tube slide Reg No. X1291, the other is a Superjet (half pipe) slide Reg No. X1277. The slides are a valuable asset to the community and provide a great pastime for residents and their families. However, the incidence of accidents on the tube slide is increasing. The slides were first registered in 1982 and 1985 and subsequently the tube sections were replaced in October and November 2001. In 2008 flowmeters and variable speed drives where (sic) provided to control the water flow down the slide. No specific instructions have been given in relation to the claim by Mr Gibbon, arising from the incident on 4 December 2016. Council seeks advice as to the general state of the devices. The purpose of this report is to provide Council with guidance as to the adequacy of documentation held by Council and what may be required to operate the slides safely into the future." (Emphasis added)
It cannot in my view be said that one only of the competing purposes for the creation of the Engineers Report is clearly dominant.

Conclusion

It follows that the Engineers Report is not privileged from production and should be produced to Mr Gibbins or his lawyers within seven days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2020

At a glance

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