Kiefel v State of Victoria

AND: STATE OF VICTORIA (DEPARTMENT OF EDUCATION & EARLY CHILDHOOD DEVELOPMENT)

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 250 of 2011

BETWEEN: JAMES KIEFEL (BY HIS NEXT FRIEND WENDY KIEFEL)

JUDGE: GORDON J DATE: 13 JUNE 2012 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 These proceedings concern two related complaints of alleged disability discrimination. The first was commenced as a complaint to the Australian Human Rights Commission (the Commission) on 23 September 2009 (the First Complaint). That complaint was terminated by the Commission on 24 November 2009. On 5 February 2010, an application in respect of the First Complaint was filed in the Federal Magistrates' Court. By order made on 23 December 2010, that application was transferred to this Court (VID 2 of 2011). The second proceeding which is the subject of this application began as a complaint to the Commission on 22 December 2010 (the Second Complaint). The Commission terminated that complaint on 1 February 2011. An application in respect of the Second Complaint was filed in this Court on 1 April 2011 (VID 250 of 2011). 2 On 15 November 2011, the respondent (the DEECD) served a subpoena on Ms Julie Phillips (the Subpoena). The Subpoena required production of: Copies of all records (including but not limited to emails, facsimiles, letters, file notes, forms or memoranda) relating to James Kiefel (DOB 1/09/1999) (without limitation to period) including all records of communications between you and: (a) Wendy Kiefel; (b) Peter Kiefel; (c) any expert or proposed expert witness; and (d) any other person relating to or in connection with the Complaint or the Proceedings. 3 On 30 November 2011, Ms Phillips produced to the Court, under cover of a letter to the Registrar, certain documents. Ms Phillips objected to production of documents "relating to the period of my employment with Access Law commencing in December 2009 on the grounds of legal professional privilege". On 17 January 2012, Ms Phillips swore an affidavit which annexed three bundles of documents, being: 1. annexure "JP-A", a CD of emails received by Ms Phillips over which legal professional privilege was claimed; 2. annexure "JP-B", a CD of emails sent by Ms Phillips over which legal professional privilege was claimed; and 3. annexure "JP-C", 13 lever arch folders of documents over which no privilege was claimed. 4 On 25 January 2012, the Court granted the DEECD leave to uplift and inspect the documents contained in annexure "JP-C". The Court further ordered that: 3. On or before 4.00pm on 6 February 2012, the recipient file and serve an affidavit which identifies: (a) the categories of documents and communications contained in exhibits JP-A and JP-B to her affidavit (but limited in accordance with paragraph 4 of this Order below) over which a claim for privilege or confidentiality has been made ("the confidential documents"); and (b) the number of the confidential documents; and (c) the estimated total number of pages of the confidential documents. 4. In identifying the categories of documents for the purposes of subparagraph 3(a) of this Order, the recipient shall include only the following classes of documents: (a) Documents made on or after 1 January 2009; and (b) Documents relating to James Kiefel, including records of communications between the recipient and; (i) Wendy Kiefel; (ii) Peter Kiefel; (iii) any relevant expert or proposed expert witness; and the recipient shall not include documents that are: (A) otherwise contained in the boxed documents; (B) records of communications to which Gabriel Kuek, David Hancock or any other qualified legal adviser for the Applicant was a sending or receiving party, and in such circumstances the recipient shall notify the Respondent of the names of any such legal advisers; (C) records of communications to which the Department of Education and Early Childhood Development was a sending or receiving party; (D) draft pleadings or other Court documents in this proceeding. 5 On 6 and 14 February 2012, Shan Tong, a solicitor employed by Access Law, swore two affidavits which further particularised the documents contained in "JP-A" and "JP-B" which were the subject of claims of legal professional privilege. Of the 561 emails in "JP-A", Mr Tong deposed that he had identified 306 emails "to which a claim of privilege or confidentiality attaches". Of the 374 emails in "JP-B", Mr Tong deposed that he had identified 200 emails "to which a claim of privilege or confidentiality attaches". 6 On 8 February 2012, the Court ordered that: 3. On or before 21 February 2012, Julie Phillips or any other person who objects to the uplift, inspection or copying of any category of document contained in JP-A or JP-B that the respondent indicates it wishes to uplift, inspect and copy, file and serve an affidavit that sets out: a. the grounds for the claim of privilege and/or confidentiality that is made over each of these categories; and b. any facts supporting these claims. 7 On 22 February 2012, Mr Tong swore a further affidavit which deposed to the "grounds of objection and supporting facts against the uplifting, inspection or copying of the categories of documents sought by the Respondent". Mr Tong's affidavit abandoned certain claims of legal professional privilege, but otherwise maintained the majority of the claims. 8 On 7 March 2012, the Court made further orders designed to narrow the scope of the dispute. On 23 March 2012, the Court ordered that: 1. On or before 4.00 pm on 9 April 2012, the recipient file and serve an affidavit (or affidavits) which: (a) for each of the categories of the remaining disputed Kiefel documents, expert witness documents and treating professionals documents: (i) complies with paragraph 4(A) and 4(C) of the Orders made on 25 January 2012 and which categories, for the avoidance of doubt, are not to include communications or attachments from or to the Department of Education and Early Childhood Development or any of its employees, reports or other documents downloaded or copied from publicly available sources, or any document in relation to which inspection has already been provided to the Respondent; and (ii) identifies in respect of each such category the number of emails and number of pages within each category; (iii) identifies any documents which can properly and genuinely be described as "insignificant documents"; (b) identifies any sub-categories of the remaining disputed Kiefel documents, whether by reference to periods of time or subject-matter, including the number of emails and number of pages within each sub-category; (c) identifies each of the capacities in which the recipient was employed, contracted or otherwise engaged in the period 1 January 2009 to 11 November 2011 and, in respect of any employment with Access Law, evidences that employment and describes her role and how her work in that role was subject to supervision and control by an Australian lawyer; (d) state(s) whether objections to production are maintained with respect to the remaining disputed Kiefel documents (or any sub-categories of them identified pursuant to paragraph (b) above) and, if so, whether such objection is made on the basis of legal advice privilege or litigation privilege or both; (e) state(s) whether objections to production are maintained with respect to the remaining disputed expert witness documents and treating professionals documents and, if so, whether such objection is made on the basis of legal advice privilege or litigation privilege or both. 9 On 24 April 2012, Mr Tong swore an affidavit which maintained objections to inspection of four categories of documents. 10 On 28 May 2012, Mr Tong swore a further affidavit which set out in tabular form the communications (contained in each of the four categories) which remained subject to claims of legal professional privilege. There were 147 documents listed. On 30 May 2012, the DEECD filed a revised schedule with the Court. The revised schedule contained 70 documents. The DEECD sought inspection of each document listed in the revised schedule. 11 Then, on 12 June 2012 (the afternoon before the hearing), the DEECD provided a further revised version of the schedule to the Court which listed only 10 documents which it sought to inspect. A copy of the DEECD schedule is Annexure A to these reasons for judgment. After discussions between Counsel, that dispute was narrowed to documents E1, E2, E3 and E4 listed in Annexure A (the E Documents). It will be necessary to return to consider each of those documents later in these reasons for decision. 12 Access Law are the legal representatives of the applicant, Master James Kiefel by his next friend, Wendy Kiefel. The legal professional privilege referred to by Ms Phillips is that of Master Kiefel maintained by his mother in the way described. Two issues arise for consideration: 1. in respect of each E Document, is the relationship between Master Kiefel and Ms Phillips, on the one hand, and Ms Phillips and Access Law, on the other, capable of giving rise to a claim for legal professional privilege; and 2. if the answer to the first question is yes, do each of the E Documents support a valid claim for legal professional privilege?

PRINCIPLES OF LEGAL PROFESSIONAL PRIVILEGE 13 It was common ground that there are two sources of law regarding legal professional privilege: the common law and the Evidence Act 1995 (Cth). The Evidence Act 1995 (Cth) relates only to the adduction of evidence: Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49. Accordingly, it is the common law which is to be applied where a claim of legal professional privilege is made in response to a subpoena. 14 Legal professional privilege is a fundamental rule of law: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 552. The rule is relevantly summarised in Cross on Evidence (7th ed, 2003) at [25210]: In civil and criminal cases, confidential communications passing between a client and a legal adviser need not be given in evidence or otherwise disclosed by the client and, without the client's consent, may not be given in evidence or otherwise disclosed by the legal adviser if made either (1) to enable the client to obtain, or the adviser to give, legal advice, or (2) with reference to litigation that is actually taking place or was in the contemplation of the client. 15 In AWB Ltd v Cole (No 5) (2006) 155 FCR 30 at [44] Young J noted 12 general principles applicable to legal professional privilege which His Honour considered relevant in that case. For present purposes, two of those principles bear repeating: (7) The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context; but it does not extend to advice that is purely commercial or of a public relations character: Balabel v Air India [1988] 1 Ch 317 at 323 and 330; [1988] 2 All ER 246 at 248 and 253 (Balabel); Nederlandse Reassurantie Groep Holding NV v Bacon and Woodrow [1995] 1 All ER 976 at 983 (Nederlandse); Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610; [2005] 4 All ER 948 at [43]-[44], [59]-[60], [114] and [120] (Three Rivers); Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 at 332-3; 6 ACSR 498 at 504-6 (Dalleagles); DSE (Holdings) Pty Ltd v Intertan Inc (2003) 135 FCR 151; 203 ALR 348; [2003] FCA 1191 at [25]-[71] (DSE); and AWB at [100]-[101]. … (11) Legal professional privilege protects communications rather than documents, as the test for privilege is anchored to the purpose for which the document was brought into existence. Consequently, legal professional privilege can attach to copies of non-privileged documents if the purpose of bringing the copy into existence satisfies the dominant purpose test: Propend at CLR 507; ALR 547 per Brennan CJ, CLR 544; ALR 577 per Gaudron J, CLR 553-4; ALR 584-5 per McHugh J, CLR 571-2; ALR 599-600 per Gummow J, and CLR 587; ALR 612 per Kirby J… 16 Legal professional privilege covers communications between a client and his or her legal adviser. It has been recognised that, in some circumstances, "legal adviser" may include a paralegal, articled clerk or other law clerk in the employ of a qualified legal practitioner: see for example, in the statutory setting, the definition of "lawyer" in s 117(1) of the Evidence Act 1995 (Cth). In Phipson on Evidence (15th ed, 2000) at [20-14] the proposition is stated thus: Where there are unqualified staff involved in the giving of advice in a department supervised by qualified lawyers, it may be possible to claim privilege. The problem may arise in law firms, where there are paralegals or other unqualified persons giving advice under supervision. … If the person who gives the advice is a paralegal and is working supervised by a solicitor under law society rules, then the advice is in truth the advice of the firm (and not the advice of the paralegal) and will be privileged. 17 In Glengallan Investments Pty Ltd v Arthur Andersen [2002] 1 Qd R 233 Williams JA commented at 247 that: As is supported by the authorities and texts to which I have referred, the privilege does extend to a situation where a non-qualified person, such as an articled clerk, is giving advice subject to the supervision of a practitioner. 18 That proposition should not be surprising. As was suggested by Counsel in Taylor v Forster (1825) 2 C & P 195; 172 ER 89, and accepted by the court, "[a]ttorneys must employ clerks - they cannot transact all their business in person". Further, that proposition is consistent with the policy basis of legal professional privilege. It would not encourage openness and candour in communications between lawyer and client if communications between a lawyer and client were protected while communications between employees of a lawyer, including non-qualified employees, and a client were not.

ANALYSIS 19 Ms Kiefel, on behalf of her son, claims legal professional privilege over the documents contained in annexures "JP-A" and "JP-B", including the E Documents. 20 Those documents are described by Ms Phillips as "email correspondence [sent or received] in my capacity as a casual law clerk to Access Law in respect of the Applicant's case from 1 January 2010 to 11 November 2011". The claims of privilege were supported by the following affidavits: 1. affidavits of Mr Tong of 6, 14, 22 February 2012, 24 April 2012 and 28 May 2012; 2. affidavit of Mr Kuek of 23 April 2012; and 3. affidavits of Ms Phillips of 17 January and 24 April 2012. 21 Adopting the formulation referred to at [14] above, in order to establish a claim of legal professional privilege Master Kiefel must establish that each communication is: 1. confidential; 2. passing between a client and a legal adviser; and 3. made either (1) to enable the client to obtain, or the adviser to give, legal advice, or (2) with reference to litigation that is actually taking place or was in the contemplation of the client. 22 The DEECD contended that the second element could not arise in circumstances where the communications were between Ms Kiefel or Peter Kiefel, Master Kiefel's father, and Ms Phillips. There was no dispute that Ms Kiefel or Mr Peter Kiefel could satisfy the description of "a client", given their relationship to Master Kiefel, who was himself unable to directly instruct Access Law. Rather, what was in dispute was whether Ms Phillips could, either between 1 January 2010 and 11 November 2011 or at any time, satisfy the description of "a legal adviser". Master Kiefel's position was that because Ms Phillips was employed as a "casual law clerk" of Access Law, his legal representative, any communication with her after his engagement of Access Law was in truth a communication with Access Law, and therefore protected by legal professional privilege. 23 Accordingly, the critical issue in dispute was whether, firstly, in respect of each communication recorded in each of the E Documents, that communication was sent or received by Ms Phillips in her capacity as a casual law clerk employed by Access Law and, secondly, whether the communication was capable of sustaining a claim of legal professional privilege. 24 It is well-established that a party seeking to assert legal professional privilege bears the onus of proving that the communication was undertaken, or the document was brought into existence, for the dominant purpose of giving or obtaining legal advice or with reference to litigation that was actually taking place or in contemplation at the time: AWB Ltd v Cole (No 5) (2006) 155 FCR 30 at [44]. 25 There is, however, more than one way of discharging that onus. In AWB Ltd v Cole (No 5), that issue was explained at [44] in the following terms: The onus might be discharged by [1] evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, or authored the document, or procured its creation. [2] It might also be discharged by reference to the nature of the documents, supported by argument or submissions: see Grant v Downs (1976) 135 CLR 674 at 689; 11 ALR 577 at 589 (Grant); Cmr of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266; [2005] FCA 1247 at [30] (Pratt Holdings); and AWB at [63]. (Numbers inserted.) 26 What then is the position here? First, what are the circumstances and context in which the communications occurred or the documents were brought into existence, or the purposes of the person who made the communication, or authored the document, or procured its creation. As the descriptions of the E Documents reveal - that necessarily involves Ms Phillips.

PRIOR RELATIONSHIP BETWEEN MASTER KIEFEL AND MS PHILLIPS 27 It is common ground that there was a prior (and continuing) relationship between Master Kiefel and Ms Phillips, which was not a relationship between lawyer and client. 28 Some of the correspondence between Ms Phillips and Master Kiefel's mother, Ms Kiefel, and between Ms Phillips and various third parties was provided to the Court. That correspondence disclosed that: 1. at some point in early 2009, Ms Kiefel first approached Ms Phillips in relation to her son; 2. on 14 March 2009, Ms Phillips sent a letter to Ms Kiefel which set out the terms and conditions on which Ms Phillips would act for the Kiefels. The letter described Ms Phillips as an "Anti Discrimination Consultant". That letter was signed by Ms Kiefel on 17 March 2009; 3. on 28 August 2009, Ms Kiefel authorised Ms Phillips to write to the DEECD on her behalf; 4. on 29 December 2009, Ms Phillips wrote to Ms Kiefel and stated "Your complaint has now been terminated and in a week or so we should make an [appointment] with Access Law to progress the matter"; and 5. on 16 December 2010, 22 December 2010 and 2 May 2011, Ms Phillips wrote to Ina Keuhlich, the assistant principal of Essex Heights Primary School, the Human Rights and Equal Opportunity Commission and Andrew Crossett, the principal of Essex Heights Primary School, on behalf of Ms Kiefel. The contents of those documents record that those communications were made by Ms Phillips in her capacity as an "Anti Discrimination Advocate" or as an "Anti Discrimination Consultant".

RELATIONSHIP BETWEEN MS PHILLIPS AND ACCESS LAW 29 It is the next step that creates the issue giving rise to the challenge to Ms Kiefel's claims of legal professional privilege. As noted before, Ms Phillips wore two hats. First, as an "Anti Discrimination Consultant" and, second, as a law clerk employed on a casual basis by Access Law. 30 Mr Gabrielle Kuek, a sole practitioner, practises under the name "Access Law". Mr Kuek has informed the Court that Ms Phillips has been employed by Access Law as a "casual law clerk" since 2006. He provided sworn evidence to the Court in which he described the relationship between Ms Phillips and Access Law as follows: 4. I met Ms. Phillips in 2006 when I was approached to represent a child with learning disabilities. Since then, Ms. Phillips has referred perhaps 15 people with disabilities to me. In every case, the client had received advocacy assistance from Ms. Phillips and wanted her to continue being involved n [sic] their case. 5. Ms. Phillips demonstrated a deep understanding of the disability discrimination area, intimate knowledge of each client's case and strong empathy for them and their relatives. Because of these and the clients' instructions that she continue to be involved in their cases I agreed to employ her only on those cases, under my supervision. 6. Ms. Phillips performed general Law Clerk work such as drafting letters, arranging appointments, obtaining instructions, drafting statements, utilizing her considerable contacts to engage experts and arranging assessments, etc. These tasks were performed under my or a barrister's request, direction or supervision. 7. Because Ms. Phillips worked for me on a casual basis, I permitted her to keep a copy of material parts of each client's files. 31 Mr Kuek was not required for cross-examination. 32 Ms Phillips also gave evidence. Ms Phillips provided a list of a number of part-time or casual positions she held between 1 January 2009 and 11 November 2011. One of the listed positions was described as "Law Clerk, Access Law". Ms Phillips then provided the following "non-exhaustive" list of the tasks she undertook in relation to her position at Access Law: (a) Approaching expert witnesses to seek their assistance, (b) Discussing with expert witnesses the details of cases and their potential evidence, (c) drafting letters, (d) arranging appointments, (e) interviewing witnesses and making notes of what they say, (f) drafting witness statements, (g) arranging assessments, (h) liaising with Gabriel Kuek, Shan Tong and counsel by way of emails, letters, telephone and personal attendances, (i) conveying information between the applicant's Litigation Guardian and father and his lawyers, (j) filing and serving documents, (k) interpreting when necessary between deaf clients and Counsel; (l) attending mediations, directions hearings and trials with Counsel/Solicitors. 33 Her sworn evidence not subject to cross-examination was that "[t]he tasks [she] undertook were conducted under the supervision and direction of Mr Gabriel Kuek of Access Law and/or counsel". 34 The evidence of Mr Kuek and Ms Phillips may be described as general, at best. Neither gave evidence of the precise circumstances of Ms Phillips' work on Master Kiefel's file or Mr Kuek's (or Counsel's) supervision of that work. However, they were not the subject of cross-examination, and in the circumstances, I must accept the evidence. However, given the unsatisfactory state of that evidence, it is in my view necessary to turn to the second basis upon which legal professional privilege might be established: consideration of the nature of the documents themselves, supported by argument or submissions.

CONSIDERATION OF EACH DOCUMENT 35 I have read and considered each of the E Documents. The contents of the documents record communications. Those communications reveal, on their face, the circumstances and context in which each communication occurred and the reason or reasons why each document was brought into existence. In my view, all but one of the documents records a communication which by its nature and context is the subject of a maintainable claim of legal professional privilege. 36 In my view, E1, E2 and E4 record communications which by their nature and content were made for the dominant purpose of the litigation that was actually on foot at the time at which the communications occurred. 37 The position of E3 is different. The communication recorded in that document is, in my view, of a different character. Having regard to the content of that document, and the context in which the communication recorded in that document was made, I do not accept that the communication recorded in that document was made for the dominant purpose of the litigation that was then on foot. There is no evidence to suggest that the person identified in that document was, at that time, an expert retained by the applicant for the purpose of this litigation. In fact, the content of the document is consistent with other evidence before the Court that the "expert" identified was retained by Essex Heights Primary School to advise on steps that could be taken to assist Master Kiefel to return to school. 38 In those circumstances, I order that the applicant produce for inspection document E3, and I otherwise dismiss the balance of the DEECD's application. I certify that the preceding thirty eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

"A" Emails from W Kiefel to J Phillips Date Time Description Basis of Privilege Particulars 3 28/04/2010 4.08pm Advising of progress of reviewing FOI material and discussing Access Law's request for instructions re mediation Litigation Communication for the purpose of providing or receiving instructions in preparation for Court Mediation in existing legal proceedings 12 02/08/2010 7.35pm Advising of appropriate expert to engage for assessment of IEP Litigation Communication concerning instructions on engagement of expert witness for the purpose of existing legal proceedings 13 03/08/2010 12.24pm Clarifying appropriate expert for assessment of IEP Litigation Communication concerning instructions on engagement of expert witness for the purpose of existing legal proceedings 73 30/11/2010 10.09pm Weblink re effects of drug prescribed to JK Litigation Communication for the purpose of providing or receiving instructions for drafting Witness Statements / Affidavits of Wendy Kiefel in existing legal proceedings

"B" Emails from J Phillips to W Kiefel Date Time Description Basis of Privilege Particulars 7 2/08/2010 5.56pm Seeking instructions on appropriate expert in draft list of witnesses to consider IEP prepared by Wantirna Heights and Bulleen Heights Litigation Communication concerning instructions on engagement of expert witness for the purpose of existing legal proceedings 33 1/12/2010 9.13pm Responding to email from W Kiefel dated 30/11/10 10.09pm concerning side effects of drug, Risperdal, and discussing supports that have been most effective for James Kiefel Litigation Communication for the purpose of providing or receiving instructions for drafting Witness Statements / Affidavits of Wendy Kiefel in existing legal proceedings

"E" 'Insignificant' Documents Date Time Description 1 3/03/2010 10.14am Email from W Kiefel to J Phillips concerning W Kiefel's communications with the school, and referencing two incident reports concerning the applicant 2 4/08/2010 Email chain between J Phillips to W Kiefel concerning previous communications with Autism Victoria 3 12/08/2010 Email from W Kiefel to J Phillips concerning Mary Gebert 4 6/04/2011 Email from W Kiefel to J Phillips concerning the applicant's dietary requirements