Michael Wolf v Armstrong Miller and McLaren Pty Limited

CATCHWORDS: Evidence - Section 126B of the Evidence Act 1995

Evidence Act 1995 Industrial Relations Commission Rules Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations Act 1991 (repealed) Industrial Relations Act 1940 (repealed) Legal Profession Act 1987

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Davis v Amalgamated Television Services Pty Limited (1998) 81 IR 364 Esso Australia Resources v FCT (1999) 201 CLR 49 Estok v Issues & Images Group Pty Limited and Others [2002] NSWIRComm 67 In re Dental Technicians Award (1969) 69 AR 520 Maronis Holdings Ltd & Anor v Nippon Credit Australia Ltd & Ors [2000] NSWSC 836 CASES CITED: M & W Grazebrook Limited v Wallins [1973] ALL ER 868 New South Wales Nurses Association v Western Sydney Area Health Service [2002] NSWIRComm 35 Rodgers v Rodgers (1964) 114 CLR 608 Urqhardt v Lanham [2003] NSWSC 109 Wood v Commonwealth Bank of Australia (Unreported, Ritter JR, 1 May 1996, Industrial Relations Court of Australia)

APPLICANT: Mr B Taylor, solicitor SOLICITORS: Henderson Taylor Workplace Lawyers Pty Ltd LEGAL REPRESENTATIVES:

RESPONDENT: Ms K Edwards, solicitor SOLICITORS: Dibbs Barker Gosling

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

MICHAEL WOLF v ARMSTRONG MILLER AND McLAREN PTY LIMITED

Application under section 106 of the Industrial Relations Act 1996

1 This judgment concerns a motion filed by the applicant on 17 February 2005, seeking orders under Rule 94 of the Court's Rules, that a summons for production of documents issued by the respondent on 1 December 2004 be set aside. The summons required IR Australia Pty Ltd to produce various documents. That company was in the business of industrial advocacy and had been advising the applicant prior to the termination of his employment by the respondent and the initiation of these proceedings. 2 The documents sought in the disputed summons were:

1. All file notes, correspondence or other documents made or held by IR Australia Pty Limited ("IR") of discussions with the applicant or otherwise relation to advice provided regarding the applicant's employment with the respondent.

2. Any and all documents produced by the applicant and provided to IR for the purposes of drafting IR's letter to Dibbs Barker Gosling, solicitors for the respondent, dated 27 August 2003.

3. Any and all documents produced by the applicant and provided to IR for the purposes of drafting IR's letter to Dibbs Barker Gosling, solicitors for the respondent, dated 15 September 2003.

4. Any and all emails or letters sent by the applicant to IR commenting on the contents of the letter from Dibbs Barker Gosling to IR dated 12 September 2003.

3 The motion was supported by an affidavit sworn by Peter Rochfort, a director of IR Australia Pty Ltd, who was not required for cross examination. His description of the business in which it engaged was:

IR Australia is an industrial relations consultancy providing industrial advocacy and representation to individuals and corporate entities. I have at all times, considered my self(sic) an industrial advocate advising clients on industrial matters.

4 The summons initiating the proceedings indicates that the applicant had been appointed to a position in Melbourne by the respondent, with terms agreed for a basis of return to a position in Sydney. There was a dispute between the parties as to what work the applicant would return to Sydney to, to perform, once the respondent had decided to bring the Melbourne appointment to an end. The disagreement eventually led to the termination of the employment. There is an issue in the proceeding as to the date upon which the employment terminated. 5 The Full Court's judgment in Davis v Amalgamated Television Services Pty Limited (1998) 81 IR 364 makes clear at 385, that the performance of work in an industry and the conditions under which it is to be done, are industrial matters within the meaning of the Industrial Relations Act 1996 ('the Act'). Such matters can become issues in proceedings brought under s106. Here, IR Australia Pty Ltd was representing the applicant in negotiations about his dispute with his employer about such matters, prior to the termination of his employment. The negotiations failed, the employment came to an end and the applicant engaged a legal representative, to initiate these proceedings. 6 The applicant has filed affidavits in the proceedings, in which the events which led to the termination of the employment are dealt with. Annexed is certain correspondence from IR Australia Pty Ltd to the respondent's solicitors. The summons seeks production of documents which go to the applicant's discussions with IR Australia Pty Ltd about the advice it was giving him, regarding his employment. 7 Orders under Rule 186(7) and s163 of the Industrial Relations Act 1996 ('the Act') were sought in the alternative. These provide:

(7) The Commission may, on special grounds, allow a claim on grounds of privilege for documents prepared for or by, or communications with, an industrial advocate or an officer or employee of an industrial organisation, if privilege would be accorded those same documents or communications had the advocate, officer or employee been a legal practitioner. 163 Rules of evidence and legal formality (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (2) However, the rules of evidence and other formal procedures of a superior court of record apply to the Commission in Court Session.

8 The application arises in the context of the objects of the Act, and the provisions of s166, which provide: (1) A party to proceedings before the Commission may appear personally or be represented by a practising legal practitioner or by an agent who is not such a practitioner. (2) However, a party is not entitled to be represented in conciliation proceedings by a person who is a practising legal practitioner or an agent who is an industrial agent without the leave of the Commission. (3) The leave of the Commission is not required if the practising legal practitioner represents an industrial organisation (or any of its members) and is an officer or employee of the organisation. (4) The leave of the Commission is also not required if the practising legal practitioner represents a State peak council and is an officer or employee of the State peak council. (5) The Commission may allow any party appearing before it the services of an interpreter. 9 It is obvious, in this statutory context, that parties to proceedings before the Court and the Commission may be advised by agents other than legal practitioners, both prior to and during the commencement of such proceedings. 'Agent' is not a word defined in the Act and so must be understood in its ordinary sense. It is a wide term, sufficient to encompass organisations of employers and employees registered under the Act and their officers and employees, as well as industrial advocates, such as IR Australia Pty Ltd. 10 A definition of 'industrial agent' was inserted in the Dictionary to the Act in 2002. It provides:

industrial agent means a person (other than a legal practitioner or an employee or officer of an industrial organisation) who represents a party in proceedings before the Commission for fee or other reward. 11 The reference to industrial agents in s166(2), was introduced at the time of the amendment of the Act, to introduce the definition of that term and ss90A and 90B. These provisions regulate the representation of parties to unfair dismissal proceedings brought under Part 6 of the Act, by industrial agents. There is no such provision made for industrial agents representing parties to s106 proceedings. 12 'Industrial advocate', referred to in Rule 186, is also not defined. It has appeared in the Rule since the introduction of the Act and the Rules in 1996. There was no issue between the parties that the work performed by IR Australia Pty Ltd, was work of a kind which an industrial advocate performs. It follows that an industrial advocate such as IR Australia Pty Ltd, may also be an industrial agent, as now defined in the Act. 13 Before dealing with the competing contentions in relation to the documents summonsed, it is necessary to deal with a number of other issues, raised by the parties, noting that in the alternative, orders under s126B of the Evidence Act 1995 were also sought by the applicant. 14 The arguments advanced raised questions as to the proper construction of Rule 186(7); whether the documents sought would be privileged, if IR Australia Pty Ltd was a legal practitioner and whether the communications between the applicant and IR Australia Pty Ltd were confidential, given the provisions of the Evidence Act, which here arise for consideration. Confidentiality 15 It is convenient to dispose of the third issue immediately. It appears to me, unarguable, that a contract such as that here entered between the applicant and an industrial advocate, such as IR Australia Pty Ltd, to provide advice and representation in relation to a dispute with the applicant's employer about an industrial matter, must contain a term, by way of implication if necessary, that obligations of confidentiality fall upon the industrial advocate in relation to the matters about which it is acting. 16 Confidentiality may be dealt with expressly in the contract. If not, the relevant test is that discussed by the High Court in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283. The implied term must not contradict an express term. Questions of the reasonableness of the term; the business efficacy of the contract without the term; whether the term is capable of clear expression and whether the term is so obvious, that it goes without saying arise for consideration. As does the question of whether the contract is effective, without the implication of the term. 17 A contract between an employee and an industrial advocate engaged to give advice and represent the employee in relation to a dispute about an industrial matter affecting an employee and his or her employer, would plainly not be effective, if the industrial advocate were not bound by obligations of confidentiality. The same result would follow if it was the employer who had engaged an industrial advocate. To hold the contrary, would permit the advocate to reveal to the employer and third parties, its client's instructions and other information which had come into its hands about the matter in dispute, as well as the advice being given. Indeed, the advocate would be free to give evidence about such matters, even against his client's interests, without the implication of such a term, if not expressly provided for. 18 Given the nature of the services provided by an industrial advocate, that result would be entirely untenable and contrary to the public interest. The fact that the industrial advocate might then also represent its client in proceedings under the Act, if the dispute is not resolved, makes the conclusion only more compelling. How could it be that the representative of a party to proceedings before the Commission or Court had no obligation to keep confidential, even the instructions received from that party, or the advice given? That would result in an untenable situation, entirely contrary to the objects of the Act. The necessity for implication of a term as to confidentiality is plainly necessary, in order that the contract have business efficacy. Construction of Rule 186 19 I turn then to the construction of Rule 186. That Rule has not been amended since the Rules were made in 1996. The respondent argued that the phrase 'an industrial advocate or employee or officer of an industrial organisation', must be understood as meaning an industrial advocate who is an employee or officer of, or a contractor to an industrial organisation. This followed from the use of the word 'or' in the phrase and the fact that the conduct of industrial organisations, their officers and employees is regulated under the Act, in a way which the conduct of industrial advocates is not. (See for example, the provisions of ss267-70). It was argued that the privilege attaching to advice given by legal practitioners, who are regulated by the Legal Profession Act 1987, was only extended under Rule 187 to industrial organisations, because of their regulation under the Act. 20 The latter argument may have superficial attraction, but I am unable to agree with the construction so urged. After all, the provisions of the Act relied upon, do not bind industrial advocates who are not officers of an organisation. 21 Privilege is a concept which attaches to persons who take certain advice from legal practitioners. Rule 186 gives the Court a discretion, consistently with the provisions of s163 of the Act, to allow a claim for privilege in certain other circumstances. That arises in a context where the Act permits parties to be represented in proceedings before the Court and the Commission by agents. Such agents may be organisations of employers or employees registered under the Act, (in reality the officers or employees of such organisations), as well as others such as industrial advocates, directors of companies, family members, members of unincorporated associations and so on. 22 There is a long history of industrial advocates appearing for parties in proceedings brought under the Act and its predecessors. Mr Rochfort spoke of having been an industrial advocate for 30 years. The predecessor legislation to the Act permitted such representation - see s359 of the Industrial Relations Act 1991 and s80 of the Industrial Relations Act 1940. 23 It is in that statutory context that Rule 186 must be considered. The Rule is not concerned with the extension of privilege in the case of any agent who might appear for a party, but only in a certain limited class of representation. In my view, to read the words 'industrial advocates' as being limited by the subsequent words 'industrial organisation', would not give effect to the obvious intent of the Rule. Indeed, it would appear to make the words 'industrial advocate' otiose. 24 Industrial advocates who are either employees or officers of an organisation, come within the following words, 'officer or employee of an organisation'. Had the Rule intended to refer to industrial advocates engaged by an organisation pursuant to some other contractual arrangement, it could readily have done so, by use of direct words. Their absence, suggests that it was all industrial advocates, whether engaged by an industrial organisation, an employer, the Crown or an employee, all frequent litigants before the Court and the Commission, who were intended to be encompassed by the Rule. 25 The fact that in 1990, the legislature introduced the definition of 'industrial agent' in the Act, excluding legal practitioners, officers and employees of industrial organisations, but not industrial advocates engaged by such organisations, also lends force to this conclusion. Industrial advocates could have been referred to in the definition, but were not. On the approach adopted in the definition, industrial advocates who are employed by industrial organisations, or who are officers of such organisations, are not industrial agents. All other industrial advocates, whether or not contracting to an industrial organisation, are included in the definition. 26 The end result of the approach adopted in the statutory scheme, is that any party in unfair dismissal proceedings may choose to be represented by an industrial advocate, or other agent. In the case of an industrial advocate who is not an employee or officer of an organisation, the industrial advocate is an industrial agent bound by the provisions of 90A and 90B, whether or not acting for an industrial organisation. 27 In such proceedings, an application might be made by any party represented by an industrial advocate under Rule 187(6), in respect of the industrial advocate working for that party, either prior to or during the proceedings. Such an application is not restricted to industrial organisations, or those represented by them. That right is not extended under the Rules to parties who engage other agents, except employees or officers of an industrial organisation. The same result applies in the case of other proceedings brought under the Act, including s106 proceedings. Would the documents summonsed be privileged, if the applicant had engaged a legal practitioner 28 I turn then to the third issue, whether the documents summonsed would be privileged, if IR Australia Pty Ltd had been a legal practitioner. It was the respondent's submission that they would not, because the evidence did not demonstrate that IR Australia Pty Ltd had been acting in circumstances where litigation was in contemplation. 29 There is no question that at common law, there is no privilege in the documents sought. At the pre-trial stage, it is the common law to which attention must be paid. The provisions of the Evidence Act are concerned with the adducing of evidence at trial. As the High Court observed in Esso Australia Resources v FCT (1999) 201 CLR 49 at 64 - 65:

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 (1983) 153 CLR 52, 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 (1987) 163 CLR 54 at 64-65. See also Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 128 per Brennan J; at 134 per Deane J; at 147 per Toohey J; at 163 per McHugh J, 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 (1983) 153 CLR 52 at 114, 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.

30 In Esso, the High Court concluded that the test in determining whether a communication attracted legal professional privilege, was the dominant purpose test, not the sole purpose test; that is, whether the communication was made between the client and the lawyer for the dominant purpose of the lawyer providing advice to the client. It is against this background that the parties' respective cases must be considered. 31 At paragraph 45 of the summons initiating the proceedings, supported by an affidavit sworn by Michael Wolf, it is said that on 25 August, prior to the termination of the employment, the applicant told the respondents he had advice about proceedings available to him under s106 of the Act. Mr Rochford indicated, in his affidavit, that IR Australia Pty Ltd had received instructions on 22 August. The motion asserted that the applicant intended to institute formal proceedings, if the negotiations failed. Mr Rochfort swore that to the best of his information and belief, this was true. 32 I am satisfied that on the material, it cannot be concluded that litigation was not in contemplation prior to the termination of the employment and during the course of IR Australia Pty Ltd's contractual relationship with the applicant. In any event, that is not the test at common law in relation to privilege, as the High Court's decision in Esso makes clear. 33 It was also submitted that even if the documents had been privileged, there had been a waiver of any privilege as to some of the material sought, because it was directed to material relating to correspondence written by IR Australia Pty Ltd to the respondent's legal advisers. Furthermore, some of the correspondence had been annexed to affidavits filed by the applicant in the proceedings. 34 The applicant relied in this respect upon the decision of Bryson J in Maronis Holdings Ltd & Anor v Nippon Credit Australia Ltd & Ors [2000] NSWSC 836, where it was held at [10] that:

Mason P's observations strongly support the view that legal professional privilege in respect of documents is not waived by referring to them in or producing them with a witness statement or an affidavit which is filed and brought to the knowledge of the opponent in accordance with rules of court or practices which require that they be filed and served before they are read in evidence, and that unless and until they are read in evidence there is no waiver. In my view a similar approach should be taken to the use of Mr Currie's affidavit where it is asserted that the manner in which the plaintiffs have conducted the proceedings and the facts which they have brought forward show that they have waived privilege with respect to the Freehills documents. I do not regard merely obtaining and filing Mr Currie's affidavit as a use of the material in it from which waiver should be imputed. In my opinion the plaintiffs' conduct in obtaining and filing the affidavit cannot be the basis of a finding of waiver of privilege; the position may be different if the plaintiffs at some stage choose to read the affidavit in evidence. 35 Bryson J went on to consider questions of express and implied waiver and in the latter case, issues of fairness which might then arise, in relation to underlying material. I dealt with similar considerations in Estok v Issues & Images Group Pty Limited and Others [2002] NSWIRComm 67. 36 Here, the situation is somewhat different, because the summons is in part directed to what was said in correspondence from IR Australia Pty Ltd to the respondent's solicitors. This is not material which has come into the hands of the respondent only as the result of the affidavits filed by the applicant in the proceedings. It is material sent in the negotiations prior to the commencement of the proceedings. 37 The question is whether there has been a waiver in relation to that correspondence and to what the correspondence was based on. This raises questions of express waiver, as well as whether fairness requires an implied waiver in such circumstances, given conduct inconsistent with maintenance of confidentiality which the privilege is designed to protect. These questions arise in a context where the parties were in discussions about the settlement of the dispute which had arisen between them, while the employment remained on foot. Those discussions were pursued by the parties with the assistance of IR Australia Pty Limited and the respondent's solicitors. 38 The correspondence was seemingly not marked without prejudice, but that is not necessarily fatal to the question of privilege. In Rodgers v Rodgers (1964) 114 CLR 608 at 614 the High Court observed, for example:

The evidence shows that for a lengthy period the parties were negotiating by themselves and their solicitors for the purpose of determining what financial provision should be made for the appellant and there can be no doubt that there was under discussion the appellant's claim to maintenance and also possible agreement concerning the wife's claim to an interest in the assets of her husband. In spite of the arguments of counsel for the appellant we are satisfied, as was the learned trial judge, that agreement was never reached between the parties and that their negotiations in an effort to reach agreement must be taken to have been without prejudice. That they were not expressed to be without prejudices is of no consequence; it is sufficient that the wife's first petition was then pending, that claims had been made upon the husband, and that the negotiations took place bona fide with a view to compromise. We do not understand the observation that whilst the "document" would not have been admissible in other jurisdictions there was something to be said for the view that it and the negotiations which preceded it were admissible in the Matrimonial Causes jurisdiction as showing the conduct of the parties. That husband and wife who are parties to a subsisting cause in the Matrimonial Causes jurisdiction, or, who contemplate such proceedings, should be able to negotiate with a view to reconciliation or as to what financial provision should be made for one party freely and without fear that, failing agreement, what is said or done by them may later be used in evidence is, in our view, not open to question. 39 It follows, in this case, that had the parties both been legally represented, privilege would have attached to the documents here sought, having in mind the nature of the discussions and negotiations being pursued. Such negotiations in relation to an industrial matter, must generally be regarded as being conducted on a without prejudice basis, even of that is not expressly stated by the parties. 40 I will deal separately with the question of waiver. Otherwise, I am satisfied that the material which the respondent seeks, would be privileged if IR Australia Pty Limited were a legal representative and must be extended to the applicant in relation to the documents here summonsed. The application under Rule 186 41 It is in those circumstances that consideration must be given to whether the discretion in Rule 186(7) should be exercised. Privilege is designed to ensure that confidentiality is maintained in relation to information provided to a legal adviser for the purpose of obtaining advice. Here, the applicant was taking advice from an industrial advocate, at a time when he had informed the respondent that he was contemplating initiating proceedings such as these. The industrial advocate represented the applicant in negotiations with the respondent's solicitor, about the settlement of the industrial matter about which a disagreement had arisen between the parties. 42 As I noted earlier, there was no issue between the parties that the applicant has no privilege at common law in respect of such communications. The respondent relied upon a decision of Ritter JR in Wood v Commonwealth Bank of Australia (Unreported, 1 May 1996), who so found. In reaching this conclusion, reference was made to the decision of the President of the National Industrial Relations Court, Sir John Donaldson, in M & W Grazebrook Limited v Wallins [1973] ALL ER 868, where it was concluded that privilege extended to legal advisers and other agents in unfair dismissal proceedings. It was there observed at 871 that:

Before industrial tribunals it is the rule, rather than the exception, for the parties to be represented by persons other than lawyers. Indeed, it is the policy of Parliament to encourage such representation. If the law to be applied to industrial tribunals were not as stated in the note in the County Court Rules, the position would arise that, for example, a personnel officer, when examining as a witness a works foreman, could, at the end of the works foreman's evidence, be called on to hand over the proof of evidence from which he had been examining the witness. Obviously, that would be a wholly untenable situation. Accordingly, we rule that if and insofar as the general law applicable to all courts does not give the privilege set out in the note in the County Court Practice, then, in the interests of the administration of justice, we hold that that the privilege exists in relation to proceedings before an industrial tribunal. We would, however, draw attention to the fact that it is a limited privilege. It exists only in relation to communications with an actual view to the litigation in hand and the mode of conduct of it. It does not exist in relation to the situation at the time when the matters complained of were arising.

43 The Rule there referred to provided at 870: "Communications not only with legal advisers, but with other agents, with an actual view to litigation in hand, and the mode of conduct of it, also are privileged: Pearce v. Foster (1885) 15 QBD 114.

44 The Commission's Rules have adopted a different approach. In a limited class of cases, privilege may be extended, it is not extended automatically. The Rule makes clear that privilege does not, and should not, be granted in every case where a person has engaged the services of an industrial advocate. Rule 186(7) requires that the Court be satisfied that there are 'special grounds', which warrant the claim being granted. Nor, however, does the fact that an industrial advocate is not regulated by the provisions of the Legal Profession Act, or of the Act, lead properly to the conclusion that the discretion given by the Rule ought not to be exercised. The very fact that the Rule contemplates such an outcome, means that this factor alone is not a sufficient basis upon which a claim for privilege may be refused. 45 Some reference was made by the respondent to unsatisfactory conduct by some industrial advocates in proceedings before the Commission, as being a reason for refusing the application. Such concerns plainly underpinned the amendment to the Act which resulted in the introduction of ss90A and 90B, earlier referred to. It was not suggested that IR Australia Pty Limited, or Mr Rochfort, had conducted themselves in any inappropriate way. While I am satisfied that inappropriate conduct by an industrial advocate would be relevant to a consideration of an application such as this, no such issue was here raised by the respondent. 46 In this case, I am satisfied that special grounds do exist. Here, the negotiations in question were on foot, over the course of some weeks, prior to the termination of the employment and the commencement of these proceedings. The applicant was assisted by an industrial advocate. I take the view that it is consistent with the Act that negotiations between employers and employees, conducted while the relationship remains on foot and where they are seeking to resolve their differences, knowing that the alternative is proceedings under s106 of the Act, must be encouraged. In the circumstances of this case, I am also satisfied that the negotiations conducted must be protected, by the discretion being exercised in favour of the grant of privilege. 47 In coming to that conclusion, I have had in mind the objects of the Act. The legislation encourages settlement of disputes, in the first instance, at the workplace level. The assistance of an industrial advocate in such negotiations, at such a stage, can be useful and in the ordinary course, would be conducted on a confidential basis as between the parties. I am satisfied that to extend privilege in a case where s106 proceedings are in contemplation, is entirely consistent with the objects of the Act. 48 Proceedings brought under s106 fall within a limited class of cases before the Court, rather than the Commission, where the parties are required to participate in mandatory conciliation conducted by a member of the Commission, before the proceedings are heard by the Court. Section 166 provides that in conciliation proceedings a party may be represented by a legal representative, or by an agent, with leave. 49 Such proceedings are conducted on a confidential basis, irrespective of the nature of the representation, consistently with the approach long adopted by the Commission. In re Dental Technicians Award (1969) 69 AR 520, Cook J observed at 524, in relation to evidence called about what had occurred during conciliation proceedings:

It is, however, right that I should express in very clear terms my view that evidence of this type should not have been introduced into the case. The fact that a result emerges from negotiations between parties with a view to reaching settlement of a matter in the course of the process of conciliation is relevant - the consent award is itself evidence of that fact - but what was said during the course of those negotiations by any party and the factors which may have influenced a party in reaching an agreement are, in my view, completely privileged. To pay any regard whatever to evidence of this type would, in my firm view, undermine a fundamental concept of the process of conciliation, namely, that parties would discuss matters freely and without prejudice, and I need only add that I have completely disregarded this evidence in determining the issues in these appeals. 50 To accord privilege to a client's communications with an industrial advocate, prior to such conciliation proceedings, could only tend to encourage settlements being achieved in that process. To adopt a different approach, may have an adverse consequence for the Commission's ability to successfully conduct such conciliation proceedings, which in my view should be guarded against. The prospect that matters such as the making, accepting or rejection of offers of settlement, prior to s106 proceedings being instituted, not being treated as confidential, could have an entirely detrimental effect on the ability of parties to resolve their differences, especially in cases where one or other party, for financial or other reasons, is not represented by a legal practitioner, but by an industrial advocate. I am satisfied that this would not be in the public interest. 51 I also note that in the course of argument, I was referred to a decision given by Sams DP in New South Wales Nurses Association v Western Sydney Area Health Service [2002] NSWIRComm 35. These were proceedings brought under s84, in respect of an alleged unfair dismissal. Evidence was called from a Union organiser, who had represented the applicant and another employee, in an investigation conducted by the employer into allegations of misconduct of the most serious kind. She gave evidence about this and her role in a police enquiry. At issue was the fairness of the dismissal in the context of the enquiry as well as other matters. 52 A summons had been issued to the union seeking the production of documents 'relating to the allegations made against Harding, the inquiry into these allegations by the Area Health Service including the conduct of that enquiry, the dismissal of Harding and the dismissal of Bevan".(at [172]) 53 A claim was advanced for the union under Rule 186, in relation to communications between the union's officers, some of whom were legally qualified. The claim was rejected, it being noted that the only basis upon which it was being advanced was that union members would be disadvantaged over non-union members, who were legally represented. Sams DP concluded that 'I cannot see how this general observation (even if it be right) can fit within the Rule requiring satisfaction of special grounds in this case'. (at [186].) At [187] it was noted:

In other words, nothing was put in this case to distinguish it from other cases involving Unions and their members. Therefore, the Association's claim of privilege over the disputed material must fail. 54 The decision given by Sams DP makes clear that the claim there under consideration was not analogous to that here advanced, where at issue is documents going to settlement negotiations. Nor were questions of waiver, which would appear to have arisen on the facts, addressed. Consequently, I did not find the decision of assistance in the questions which here arise for determination. 55 As to waiver, consistently with the approach of Bryon J in Maronis Holdings, this is not the time to consider that issue. If the correspondence is sought to be put into evidence by the applicant, the matter may need to be revisited. The proceedings have not yet reached that stage. It follows that the respondent's position as to paragraphs 2 - 4 of the summons must be reserved, pending what develops at the hearing. Section 126B of the Evidence Act 1995 56 Finally, it is necessary to consider the application under s126B(2), for a direction that the evidence sought in the summons not be adduced. The section provides: 126B Exclusion of evidence of protected confidences (1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose: (a) a protected confidence, or (b) the contents of a document recording a protected confidence, or (c) protected identity information. (2) The court may give such a direction: (a) on its own initiative, or (b) on the application of the protected confider or confidant concerned (whether or not either is a party). (3) The court must give such a direction if it is satisfied that: (a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and (b) the nature and extent of the harm outweighs the desirability of the evidence being given. (4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters: (a) the probative value of the evidence in the proceeding, (b) the importance of the evidence in the proceeding, (c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding, (d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates, (e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider, (f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed, (g) if the proceeding is a criminal proceeding - whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor, (h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person. (5) The court must state its reasons for giving or refusing to give a direction under this section.

57 The section is not concerned with pre-trial procedures, such as a summons to produce documents, but rather with the question of whether documents, once produced, might be the subject of a direction under the section, if a party sought to adduce them in evidence. 58 The section deals with a 'protected confidence' defined in 126A of the Evidence Act as: protected confidence means a communication made by a person in confidence to another person (in this Division called the confidant): (a) in the course of a relationship in which the confidant was acting in a professional capacity, and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant. 59 For reasons earlier given, I am satisfied that IR Australia Pty Limited was under at the least, an implied obligation not to disclose the contents of the communications between the applicant and it. The summons is directed to IR Australia Pty Limited. It is the applicant who objects to the production. The time at which the use to which such documents might be put at trial is not now. That can only arise at any hearing, if such evidence is sought to be adduced. (See Odgers, Uniform Evidence Law, 6th Edition at [1.3.11960].) It is that stage that the matters raised in s126B(4) may properly be considered, including questions of relevance to the issues which must be determined in the proceedings. 60 It follows that I cannot conclude that the summons may be set aside on this basis at this stage of the proceedings. It also follows that any questions of access to the documents which have been produced to the Court and in respect of which the application has been made, must await the trial. I note that this conclusion is consistent with that reached by Campbell J in Urqhardt v Lanham [2003] NSWSC 109 at [15] to [17]. 61 In this case, questions of inspection of documents has not yet arisen, but may become an issue subsequently. Orders

62 For the reasons given, the question of the production of the documents referred to in paragraphs 2 - 4 of the summons is reserved, as is the claim under s126B of the Evidence Act 1995. Otherwise, I exercise the discretion available under Rule 186, to allow the applicant's claim for privilege in relation to the documents summoned.

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