Inspector Anthony Nicholson (WorkCover Authority of New South Wales) v Waco Kwikform Limited

Evidence Act 1995 LEGISLATION CITED: Judiciary Act 1903 (Cth) Occupational Health and Safety Act 2000

Adelaide Steamship Co Ltd and Another v Spalvins and Others (1998) 152 ALR 418 Amand v Secretary of State for Home Affairs and Another [1942] 2 All ER 381 Carnell v Mann (1998) 89 FCR 247 Director of Public Prosecutions (ACT) v Hiep and Others (1998) 86 FCR 33 Director of Public Prosecutions (Commonwealth) v Kane and Others (1997) 140 FLR 468 Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 Hall v The Nominal Defendant (1966) 117 CLR 423 CASES CITED: Inspector Anthony Nicholson (WorkCover Authority of New South Wales) v Bradley Tracey and Others [2009] NSWIRComm 98 John Cahill v State of New South Wales (Department of Community Services) [2007] NSWIRComm 1 Kennedy v Wallace and Others (2004) 208 ALR 424 Mann v Carnell (1999) 201 CLR 1 Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 Singapore Airlines v Sydney Airports Corporation & Anor [2004] NSWSC 380 State of New South Wales v Jackson [2007] NSWCA 279 Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47

PROSECUTOR: Mr B G Docking of counsel Solicitors: Criminal Law Practice Legal Group WorkCover Authority LEGAL REPRESENTATIVES: (Mr G Diggins)

DEFENDANT: Ms W Thompson of counsel Solicitors: Freehills (Mr M Bastick)

Inspector Anthony Nicholson (WorkCover Authority of New South Wales) v Waco Kwikform Limited

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

1 In these proceedings the prosecution sought production of certain documents by way of a notice to produce. The defendant, Waco Kwikform Limited, objected to the production of four documents on the ground that they are subject to legal professional privilege. 2 The four documents are: (i) handwritten statement of Marc Reed, project supervisor, dated 5 January 2006; (ii) investigation notes prepared by Peter Pade, national OH&S manager, as part of the preparation of the report into the incident; (iii) a statement of Andrew Skopin, sales representative, dated 11 January 2006 (including an addendum to that statement dated 12 January 2006); and (iv) investigation report prepared by Peter Pade dated 23 January 2006 3 Waco Kwikform has been charged with an offence under s 8(2) of the Occupational Health and Safety Act 2000. Details of the charge and the facts giving rise to the prosecution have been set out in my earlier judgment: Inspector Anthony Nicholson (WorkCover Authority of New South Wales) v Bradley Tracey and Others [2009] NSWIRComm 98. Waco Kwikform has entered a plea of guilty to some of the particulars in the charge under s 8(2). The matter has yet to be set down for a sentence hearing. 4 In oral submissions the prosecutor objected to certain affidavit evidence relied upon by Waco Kwikform. The basis of the objection concerned the application of s 75 of the Evidence Act 1995. That section provides that in an interlocutory proceeding the hearsay rule does not apply to evidence if the party adducing the evidence also adduces evidence of its source. The prosecutor's contention, simply put, was that the present dispute between the parties was not an interlocutory proceeding for the purposes of s 75 of the Evidence Act. In support of the objection the prosecution relied upon a decision of Gyles J in Kennedy v Wallace and Others (2004) 208 ALR 424. The proposition sought to be extracted from that judgment by the prosecutor was that a decision in a proceeding to seek to enforce a common law right or immunity derived from legal professional privilege will be a final resolution of the dispute between the parties. 5 The application before Gyles J which was brought under s 39B(1) and (1A)(c) of the Judiciary Act 1903 (Cth) concerned handwritten notes seized during the execution of a search warrant and a subsequent claim that the notes were protected from seizure by the existence of legal professional privilege. Gyles J held that his decision with regard to the claim, constituted a final resolution of the dispute between the parties. The basis upon which his Honour came to that view however, was that the resolution of the issue of entitlement to the benefit of privilege constituted a "matter" within the meaning of s 39B. In so describing the nature of the application before him, his Honour distinguished it from the circumstance where the same application is made in the substantive or principal proceedings (at 453): There is a plethora of cases dealing with the question whether proceedings are interlocutory or final for various purposes, including s 75 of the Evidence Act, some of which concern legal professional privilege. An issue as to whether documents are privileged from production upon that basis in the course of a substantive proceeding in a court is interlocutory. That does not decide the present question. 6 The decision therefore provides no support for the prosecutor's contention that the present application was not made in an interlocutory proceeding. On the contrary the issue as to the entitlement to claim the benefit of privilege having been raised in the course of the substantive proceedings, it qualifies, on the analysis of Gyles J, as interlocutory. 7 In Hall v The Nominal Defendant (1966) 117 CLR 423, Windeyer J examined a number of tests for ascertaining the finality of a judgment or order. His Honour said (at 443): In most cases the test that seems to be most satisfactory, and the one that accords most nearly with what has been said on the subject in this Court, is it seems to me to look at the consequences of the order itself and to ask does it finally determine the rights of the parties in a principal cause pending between them. It is never enough to ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation. 8 It should be noted, although not relevant for present purposes, that proceedings, in order to be interlocutory, need not be confined to applications in the principal cause: Director of Public Prosecutions (ACT) v Hiep and Others (1998) 86 FCR 33 at 49.

9 In Amand v Secretary of State for Home Affairs and Another [1942] 2 All ER 381 at 388 Lord Wright considered the terms, "criminal cause or matter" and "order" and said: ... if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a "criminal cause or matter". The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal. 10 The above authorities demonstrate that the hearing of the present application may be characterised as an interlocutory proceeding, forming part of the principal proceedings in which Waco Kwikform has been charged with an offence to which it has entered a plea of guilty to at least some of the particulars. The order to be made as a result of the present application will be an order made in the principal proceedings. It will not affect the outcome of those proceedings, being a sentence hearing followed by the imposition of penalty. 11 A second preliminary issue which arises concerns what principles are to apply to the claim of privilege in this case. According to Waco Kwikform the common law principles apply. The matter is of some significance bearing in mind the relevant provisions of the Evidence Act which are concerned with the admissibility of evidence. In contrast the common law principles are not limited to the adducing of evidence in the course of a hearing in a court, and extend to pre-trial proceedings: Mann v Carnell (1999) 201 CLR 1 at [19] [20]. 12 The present proceedings, being interlocutory, would normally involve the application of the common law principles (unless the provisions of the Evidence Act concerning client legal privilege are made expressly applicable by operation of other statutory provisions): see Adelaide Steamship Co Ltd and Another v Spalvins and Others (1998) 152 ALR 418 at 428; Carnell v Mann (1998) 89 FCR 247 at 258. 13 The issuing of the notice to produce by the prosecutor was governed by r 161 of the Industrial Relations Commission Rules. The term "privileged document" which is used in r 161 is defined in r 160 to mean: (i) a document of which evidence could not be adduced in the proceedings over the objection of any person, by virtue of the operation of Part 3.10 of the Evidence Act 1995 , (ii) a document that relates to matters of state within the meaning of section 130 of the Evidence Act 1995 , unless and until the Commission directs that it cease to be a privileged document, (iii) where a claim is made against a party for the recovery of a statutory penalty or for the enforcement of a forfeiture, a document which is or has been in the possession, custody or power of that party which is: (A) relevant to a fact in issue on that claim, and (B) not relevant to a fact in issue on any claim made in the proceedings other than for the recovery of a statutory penalty or for the enforcement of a forfeiture, 14 In John Cahill v State of New South Wales (Department of Community Services) [2007] NSWIRComm 1, Boland J, President, made the following comment on the definition: The definition of "privileged document" in r 160 is similar in effect to that of the definition of "privileged document" in the Uniform Civil Procedure Rules 2005 (see also r 1.9), which is that it makes the Evidence Act 1995 rules concerning privilege applicable to pre-trial processes in civil proceedings. Rule 160 does not make any distinction between civil and criminal proceedings, which makes for an unusual situation because in the general criminal law it is the common law relating to legal professional privilege that applies to pre-trial processes. 15 His Honour held that r 160 did not apply to criminal proceedings (at [29]): I am inclined to believe that r 160 does not apply to criminal proceedings, not only because it would be inconsistent with the general criminal law but also because: (1) To apply r 160 to pre-trial processes in criminal proceedings would give rise to an inconsistency with s 123 of the Evidence Act. The result of s 123 is that the right of a party to claim client legal privilege is lost where the evidence is sought to be adduced by an accused in a criminal proceeding, unless the accused is seeking the evidence from a co-accused. It would mean that s 123 would extend to pre-trial processes in criminal proceedings before the Industrial Court thereby potentially removing the current common law right of a prosecutor to claim legal professional privilege in relation to, for example, legal advice obtained relating to the prosecution; (2) Section 164(1)(c) of the Industrial Relations Act provides that the Commission may exercise the functions ("function" is defined in the Dictionary to the Act as including a power, authority or duty) of the Supreme Court in relation to compelling the production, discovery and inspection of records and other documents. As I have noted, the Uniform Civil Procedure Rules 2005 and before that the Supreme Court Rules 1970 limited the application of the Evidence Act rules concerning privilege to pre-trial processes in civil proceedings. To interpret r 160 as applying to criminal proceedings would give the Industrial Court different powers in relation to pre-trial processes in criminal proceedings than those that may be exercised by the Supreme Court and there does not appear to be any reason why that should be so.

16 The present proceedings involve a pre-trial application which forms part of the substantive criminal proceedings. Therefore, on the analysis of Boland J, which I accept, the common law principles apply. I should add for completeness that the pre-trial application before Boland J was an application to permanently stay the proceedings, which his Honour held was not a criminal proceeding (see Director of Public Prosecutions (Commonwealth) v Kane and Others (1997) 140 FLR 468 at 478 per Hunt CJ at CL). The relevant provisions of Part 3.10 of the Evidence Act (not including s 123) were therefore held to apply to the proceeding before his Honour by virtue of r 160. 17 An explanation for the rationale of privilege appears in the judgment of Gleeson CJ, Gaudron and Gummow JJ in Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 at [35]: Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court. In the ordinary course of events, citizens engage in many confidential communications, including communications with professional advisers, which are not protected from compulsory disclosure. The rationale of the privilege has been explained in a number of cases, including Baker v Campbell [79] , and Grant v Downs itself. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. In Waterford v The Commonwealth [80] , Mason and Wilson JJ explained that legal professional privilege is itself the product of a balancing exercise between competing public interests and that, given the application of the privilege, no further balancing exercise is required. As Deane J expressed it in Baker v Campbell [81] , a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication. The obvious tension between this policy and the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case lies at the heart of the problem of the scope of the privilege. Where the privilege applies, it inhibits or prevents access to potentially relevant information. The party denied access might be an opposing litigant, a prosecutor, an accused in a criminal trial, or an investigating authority. For the law, in the interests of the administration of justice, to deny access to relevant information, involves a balancing of competing considerations. This Court is now asked to reconsider the balance that was struck in Grant v Downs .

18 The common law test for claiming legal professional privilege is the dominant purpose test: Esso at [61], [173]. In Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47, Spigelman CJ, with whom Sheller JA and Campbell AJA agreed, said of the test: [6] It was common ground on the appeal that the test of what is a "dominant purpose" was an objective test, but that the subjective intention of the person responsible for the document coming into existence was entitled to weight. The Claimant relied on the observations of Callinan J in Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49, at 107 [172]: "Whether a purpose is a dominant purpose is, in my view, a matter to be objectively determined but the subjective purpose will always be relevant and often decisive." [7] The test of "dominant purpose" has been expressed in terms of "clear paramountcy" (see Waugh v British Railways Board [1980] AC 521, at 543; Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332, at 336-337[10]). As the High Court said in a different context: "In its ordinary meaning, dominant indicates the purpose which was the ruling, prevailing, or most influential purpose." Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404, at 416 (Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ). 19 McDougall J, in the first instance decision in Singapore Airlines v Sydney Airports Corporation & Anor [2004] NSWSC 380 said of the test:

[30] Consideration of dominant purpose requires not only that the purpose, or intended use, be characterised, but attention to the question: whose purpose? In the ordinary case, the purpose would be that of the person who brings the document (in which the relevant communication is embodied) into existence. However, where the document is commissioned (as was the case in Mitsubishi) by an external solicitor, then the relevant intention will be that of the solicitor: Mitsubishi at 338 [14] (Batt JA); Hartogen at 568-9. In Grant, Barwick CJ at 677 referred to the dominant purpose as being "of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence". The evidence 20 The facts upon which the claim of privilege was asserted are set out in the affidavit of Shivchand Ramai Jhinku, sworn on 14 November 2008. Mr Jhinku is a senior associate employed by Freehills, the firm of solicitors acting on behalf of Waco Kwikform. 21 According to Mr Jhinku at about 4:00pm on 5 January 2006 Waco Kwikform engaged Freehills for the purpose of obtaining advice about an incident which occurred earlier that day. The affidavit annexes a letter dated 5 January 2006 sent by Miles Bastik, a partner at Freehills, to Delano Chesler, a corporate solicitor employed by Waco Kwikform. According to Mr Jhinku, the letter was sent via email at about 6:05pm. The relevant parts of the letter state: We refer to the above accident which we are instructed occurred at about 3pm on 5 January 2006 at the Delta Demolitions site, corner of Sussex and Erskine Streets, Sydney, and resulted in the death of a person working at that site (who was not employed by Waco Kwikform). In particular, we refer to the legal advice Waco Kwikform has sought in relation to the matter. As you are aware, there is a possibility that this incident will give rise to proceedings under the Occupational Health and Safety Act 2000 (NSW) . So that we may provide Waco Kwikform Limited with advice concerning all legal aspects of this matter, it would be appreciated if you could coordinate the preparation of a report concerning this matter and forward that report to us. Please mark the original version of any report (and any documentation produced for the purposes of preparing the report) to our attention and clearly indicate on its cover that it is a document prepared for the purposes of obtaining legal advice. The appropriate form of wording is as follows: "Privileged and confidential - prepared solely for the purposes of obtaining legal advice." Any copies of the report should be carefully limited and should all bear the same notation on the cover. 22 Mr Jhinku states in his affidavit that he was instructed by Mr Chesler that the four documents over which the claim of privilege has been made were created after the request made in the letter for the preparation of a report, and were made, "for the dominant purpose of obtaining legal advice". The affidavit provides more detail with regard to the purpose for which each document was created. With regard to the statement of Marc Reed, Mr Jhinku says that it was created after Freehills had been engaged to provide advice, "for the purpose of assisting the defendant's investigation into the incident". The second document, the investigation notes of Mr Pade, Mr Jhinku says, was prepared, "in the course of investigation into the incident for the purpose of preparing the report requested by Freehills". The third document, according to Mr Jhinku, was prepared, "for the purpose of assisting the defendant's investigation into the incident", and the fourth document, being Mr Pade's report, was prepared for provision to Freehills in accordance with the request set out in Mr Bastik's letter. 23 In a supplementary affidavit affirmed by Mr Jhinku on 11 December 2008 he says that the information as to the purpose of the creation of each of the four documents was given to him by Mr Chesler and by Mitchell Geoffrey (an employee of Waco Kwikform) on 13 November 2008 in separate telephone conversations he had with each of them. 24 Mr Jhinku was cross-examined on the content of his affidavits. He confirmed that he had not spoken directly to the authors of the four documents. His evidence was to the effect, generally, that he had no direct knowledge or involvement in the investigation and events that transpired following the incident of 5 January 2006. Mr Bastik was not made available for cross-examination, nor was Alicia Taranto, a senior associate employed by Freehills, who sent Mr Bastik's letter electronically to Mr Chesler on 5 January, 2006. The email, attaching the letter, contains a note purportedly made by Ms Taranto which states: Please find attached a letter requesting the preparation of a report by Waco Kwikform Limited regarding the accident which occurred earlier today at the Delta Demolitions site, corner of Sussex and Erskine Streets, Sydney, to assist us in providing Waco Kwikform with legal advice. 25 The prosecutor contended that the four documents were created for multiple purposes, not the dominant purpose of preparing legal advice, or for use in legal proceedings. One purpose, according to the prosecutor, for the creation of all four documents, was compliance with Waco Kwikform's policy. This policy was tendered into evidence on the application. It requires, for example, all accidents and injuries to be recorded and reported. A second purpose, according to the prosecutor, was to detect whether there was any fault in the system of work at the time of the incident. A third purpose was said to be in order to ascertain whether there had been any breach by employees or subcontractors of Waco Kwikform's policies. 26 There was no indication at all, however, in the evidence adduced on the application, of the existence of any of these multiple or competing purposes. Instead the prosecutor contended that the existence of these other purposes was a matter of common sense and logic. Support for the contention was sought to be derived from the judgment of Gleeson CJ, Gaudron and Gummow JJ in Esso at [37] [38] where their Honours said: [37] ... As the facts of the cases illustrate, this is not an unusual situation. In Grant v Downs , the inmate of a public psychiatric hospital died in circumstances which gave rise to an action by his widow against the New South Wales Government for damages under the Compensation to Relatives Act 1897 (NSW). In accordance with standard departmental practice, reports had been made about the occurrence. Upon discovery it was claimed that the reports were privileged. They were said to have been prepared for a number of purposes: to assist in determining whether there had been a breach of staff discipline; to detect whether there were any faults in the hospital's systems and procedures; and to enable the department to obtain legal advice as to its possible liability and to obtain legal representation in the case of any coronial or civil proceedings. Such a multiplicity of purposes is commonplace, especially in large corporations or bureaucracies, which will often have their own internal legal staff, who are amongst those to whom such reports will be directed. In Waugh , an employee of a railway board was killed in a collision between locomotives. His widow sued the board. There was an internal inquiry into the accident, resulting in a report. The report was prepared for two purposes: to assist the board to decide whether there was a need to revise safety and operational procedures; and to obtain legal advice in anticipation of litigation. [38] In both cases, the claims for privilege were disallowed. In neither case was the obtaining of legal advice or assistance the dominant, let alone the sole, purpose of bringing the documents into existence. It may be added that the conditions of ss 118 and 119 of the Evidence Act would not have been satisfied in either case. 27 The prosecutor also sought to rely on the Court of Appeal judgment in Sydney Airports where Spigelman CJ concluded (at [55]): The evidence that the report was always to be deployed for non-privileged purposes, which purposes were of significance to the Claimant - particularly to have the aerobridge back in service - was such that although the privileged purpose may have been the most important single factor, it was not shown to be dominant. Accordingly, his Honour was correct to conclude that the Claimant failed to discharge its onus. 28 The remarks in Esso that the reports there under consideration were said to have been prepared for a number of purposes proceeded no doubt upon evidence having been received to that effect. The passage extracted from Sydney Airports refers specifically to evidence that the report was to be used for non-privileged purposes. 29 In the present proceedings Freehills commissioned the coordination and preparation of a report into the incident from Waco Kwikform. The relevant purpose which must be ascertained is the purpose for which Freehills commissioned the report: McDougall J in Singapore Airlines at [30]. 30 McDougall J's conclusion was based partly on the judgment of Batt JA (with whom Charles and Callaway JJA agreed) in Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332. In that judgment the judge in the proceedings below had ordered the production of five reports prepared by Thomas Howell Group (Australia) Pty Ltd for Hunt & Hunt Lawyers. A further two reports were prepared by Russell Lee Pty Ltd, the first report described as being addressed and commissioned by Thomas Howell on instruction from Hunt & Hunt Lawyers and the second as addressed to and commissioned by Hunt & Hunt Lawyers. A solicitor in the employ of Hunt & Hunt had sworn an affidavit stating that a letter had been sent to Thomas Howell requesting that factual investigations be carried out into the circumstances surrounding a workplace accident. The letter, which was annexed to the affidavit, also informed that Hunt & Hunt had been instructed by an insurance company to advise, "on the question of liability, indemnity and quantum upon receipt of your report". 31 The issue on appeal was whether the reports were privileged on the basis that they were confidential communications created by third parties for the dominant purpose of use in, or in relation to, litigation then existing or anticipated. At the time of the hearing no litigation had been commenced. 32 During the course of reasons Batt JA considered that the relevant time to ascertain whether litigation was reasonably anticipated, or in contemplation, was when the reports were commissioned. Other matters which required consideration were whether the reports were for use in relation to such prospective litigation, and whether that purpose was the dominant purpose of the solicitors in commissioning the reports (at [12] [14]). 33 In ascertaining what was the dominant purpose Batt JA looked to the contents of the letter sent by Hunt & Hunt to Thomas Howell. In relation to the letter his Honour said (at [15] [16]): [15] It demonstrates, for interlocutory purposes, that the appellant had made a claim on its liability insurer and had done so at least as early as 2 February 1996; that the solicitors were receiving their instructions from the insurer; and that, on the instructions of the insurer, they were, at least for the time being, acting on behalf of the appellant. They requested and authorised Thomas Howell to investigate the circumstances surrounding the injuries to Mr Vellios, to identify the circuit breaker involved in the accident, and to try to ascertain the reasons for its failure. The latter request and authorisation impliedly authorised the loss adjusters to obtain expert opinion, which they did from Russell Lee Pty Ltd. Finally, the solicitors' statement that the insurer had instructed them to advise "on the question of liability, indemnity and quantum" and to do so upon receipt of Thomas Howell's report made it clear that the report was for use in the preparation of that advice. The question referred to was multi-partite. The report was a prerequisite for the advice. It would disclose the circumstances of the incident, on which the advice would be based. This case is to be distinguished from Grant v Downs, National Employers' Mutual General Insurance Association Ltd v Waind, Waugh, Victor Melik & Co Ltd v Norwich Union Fire Insurance Society Ltd, and Australian Safeway Stores , in each of which the party, or the insurer, itself procured the documents. The presence of the solicitors here makes it clear that the report was required for the carrying out of legal work. Although the letter uses the singular "report", no doubt it authorised the rendering of more than one report, particularly in light of the practice of loss adjusters of rendering, when occasion requires, interim and supplementary reports. There is no evidence of any other purpose that the report was to serve. As regards the suggestion of broader purposes of public safety and quality control, whilst one is permitted to know, and indeed it was, I think, conceded, that the appellant is a subsidiary of a very large Japanese corporation and that the circuit breaker in question was the product of mass-manufacture, it is significant that the reports were commissioned by the solicitors and not by their nominal client. Public safety and quality control were unlikely to be of more than peripheral, if any, concern to the solicitors, certainly when their instructions were as they stated them to be.

[16] I therefore conclude that the dominant purpose, if not the sole purpose, of the reports commissioned by the solicitors acting on behalf of the appellant was for use in the preparation of confidential legal advice.

34 Batt JA then addressed the question whether the advice was in relation to litigation which was at the relevant time, "reasonably anticipated or in contemplation," (at [16]). Litigation is reasonably anticipated or in contemplation, his Honour said, if its initiation is likely or reasonably probable (at [17]). According to his Honour a mere possibility of pending litigation would not satisfy the requirement, but a real possibility in the sense of a substantial possibility may suffice (at [18]). His Honour concluded that at the time the reports were commissioned litigation was reasonably anticipated. His reasons were first that the nature of the incident was such as to make litigation of some kind likely. Secondly, an indication that litigation was expected was that solicitors had been instructed early. The topics on which the solicitors were asked to advise (liability, indemnity and quantum) suggested that there was an expectation of a claim, or claims. Thirdly, the appellant's resort to its insurer indicated at least an expectation of a claim which if unsatisfied would be followed by litigation (at [22]). In conclusion, his Honour found that that reports were privileged from production for inspection (at [26]). 35 Referring to the evidence adduced in the present proceedings and adopting the principles extracted from the authorities mentioned above, the following matters may be stated: (i) the relevant purpose for the creation of the four documents the subject of the claim of privilege which must be ascertained is the purpose of Freehills, being the solicitors who commissioned the coordination and preparation of "a report"; (ii) the time at which to ascertain that purpose is the time when the report was first commissioned, that is on 5 January 2006, some hours after the incident; (iii) although the letter of 5 January 2006 refers to a single report, it may reasonably authorise the rendering of more than one report or document for the intended purpose. The letter, in any event, later refers to other documentation provided for the purposes of preparing the report; (iv) the issues to be decided are whether the dominant purpose of commissioning the report was for the preparation of legal advice and/or for use in litigation reasonably anticipated or contemplated. 36 This evidence of Mr Jhinku, earlier referred to, taken at its highest suggests that the first and third documents were prepared for non-privileged purposes but that the second and fourth documents were prepared for purposes consistent with the stated purpose in the letter of 5 January 2006. 37 In my view Mr Jhinku's evidence is too remote to be reliable. It is also of little, if any, relevance since it deals, in the main, with information received from Waco Kwikform and does not inform as to the purpose of Freehills, the solicitors who commissioned the report (and any associated documents), which is the relevant purpose which must be considered. 38 The letter of 5 January 2006 sent by Freehills refers to one stated purpose, and that is the provision of legal advice in relation to the incident which occurred earlier that day. It requests the coordination and preparation of "a report" so that Freehills may provide Waco Kwikform with advice, "concerning all legal aspects of the matter". In response to that request Waco Kwikform forwarded the four documents over which the claim of privilege has been made. Those documents, which I have inspected upon invitation of the parties, were created after the incident of 5 January. There was no evidence of the competing or multiple purposes nominated by the prosecutor to sustain an inference that the documents served, or were to serve, some purpose other than the stated purpose of the provision of legal advice by Freehills. The existence of a policy created by Waco Kwikform, which required accidents and injuries to be recorded and reported, for example, does not, without more, point to a competing purpose for the preparation of the documents. The documents (or more relevantly the communications contained in the documents) were commissioned by solicitors. Matters of accident and injury reporting were therefore unlikely to be of more than peripheral concern. The dominant, if not the only purpose, set out in the letter, for the preparation of the documents was for the provision of legal advice. The four documents were also intended to contain confidential communications as evidenced by the direction in the letter of 5 January to mark the original report, and any documentation produced for the purposes of preparing the report, as "privileged and confidential": see State of New South Wales v Jackson [2007] NSWCA 279 at [40] to [43]. 39 Waco Kwikform also contended that the purpose for which the four documents were prepared was for use in relation to anticipated legal proceedings, and that this was a further ground for sustaining its claim that the documents were privileged. Although not necessary to decide this issue I propose nevertheless to do so. 40 The question to be decided is whether at the time the documents were commissioned (the letter of 5 January 2006) the dominant purpose for commissioning them was for use in litigation reasonably anticipated or contemplated. 41 That purpose may be ascertained from the letter of 5 January 2006. That letter informs the reader that there is a "possibility" that the incident which took place earlier on 5 January will give rise to proceedings under the Occupational Health and Safety Act 2000. 42 Batt JA in Mitsubishi Electrics considered that a "mere possibility" of litigation was not sufficient, or could not amount to, a finding that litigation was reasonably anticipated, but that a substantial possibility may suffice (at [18]). In concluding that some kind of litigation was likely on the facts before him, Batt JA relied on, as one basis for the conclusion, the fact that the nature of the incident itself was such as to make it likely. A brief summary of the circumstances of, and leading up to the incident, the subject of the present proceedings, appears in my earlier judgment at [32]. For convenience it is reproduced below: From that material a number of facts may be gleaned. On 5 January 2006, Paul Hughes and William Issell, employees of Bradley Tracey Scaffolding Services, were performing scaffolding duties which included the task of securing an electric winch to scaffolding. Waco Kwikform conducted a business which involved providing scaffolding equipment and scaffold labour services to various work sites. It had contracted with Delta to provide scaffolding equipment and scaffold labour services for the demolition of a building located at 55 Sussex Street Sydney. Waco Kwikform sub-contracted with Bradley Tracey Scaffolding Services for the provision of labour to erect and dismantle the scaffolding at the site. While Hughes and Issell were in the process of securing the winch Hughes fell through an open penetration in the scaffolding working deck some 33 metres to the ground. He received fatal injuries.

43 This incident, which resulted in the death of a worker, facilitates the conclusion that litigation of some kind would be reasonably anticipated at the time the documents were commissioned. As was acknowledged by Giles JA (with whom Mason P and Beazley J agreed) in Jackson at [73], "[a] serious accident would in my view warrant anticipation of proceedings at the time". 44 For the foregoing reasons the claim of legal professional privilege with respect to the four documents is upheld.

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.