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[1998] SAWCT 17
General information, not legal advice.
Workers Compensation Tribunal (SA)
1998-03-10
Original judgment source is linked above.
For the reasons explained above, it is my view that the decisions of Robins and Bawden govern the issue of legal professional privilege in respect of material which comes into existence before the process of conciliation has been completed. That then begs the question as to whether those decisions preclude any form of legal professional privilege being claimed. It was suggested in the course of argument that the decision in Bawden went further than the decision in Robins and that the apparent rejection by Williams J. of the argument that Robins was confined to cases of `litigation privilege' only, meant that these cases preclude any claim of legal professional privilege. I do not agree. Robins concerned the production of film and investigator's reports. Bawden concerned the production of witness statements. Neither case concerned the production of confidential communications between solicitor and client for the purpose of obtaining and giving legal advice. That aspect of the privilege has got nothing to do with the existence or anticipation of litigation. It exists because of the nature of the relationship between solicitor and client: Grant v Downs (supra) at p. 685 per Stephen, Mason and Murphy JJ. There is nothing that was said in Robins or Bawden, nor is there anything about the statutory function that a compensating authority undertakes, that leads me to think that this aspect of legal professional privilege, being one which is an entrenched feature of our legal system, is qualified by the Act.
(1) The application for prior production of the video evidence is refused.
(2) The worker is entitled to discovery and inspection of all relevant documents that came into existence prior to the conclusion of conciliation except those that comprise of confidential communications between MMI and its solicitors which relate to the seeking of legal advice.
(3) MMI is entitled to claim legal professional privilege in respect of those documents which came into existence after conciliation and which were created for the sole purpose of actual or anticipated litigation and those which comprise of confidential communications between MMI and its solicitors which relate to the seeking of legal advice.
I do not propose to specify precisely which documents have to be produced and those which do not. I trust, that the parties will be able to sort that out for themselves, having had an opportunity to consider these reasons, but if that does not eventuate, I grant them liberty to apply.
Michelle Treleaven
Workcover Corporation/Mmi Worker S Compensation
Application for Directions seeking orders for discovery and inspection - Status of a compensating authority discussed - Status changes at the conclusion of conciliation - Thereafter legal professional privilege can be claimed - The embargo on claims for legal professional privilege prior to the conclusion of conciliation does not extend to confidential communications between solicitor and client - Facts of case do not warrant departure from the general rule that disclosure of video evidence will not be ordered prior to completion of the worker's cross-examination - Robins v. Harbord [1994] SASC 4571; (1994) 62 S.A.S.R. 229, WorkCover v. Bawden S5405, Grant v Downs [1976] HCA 63; (1976) 135 C.L.R. 674, BHP v. Mason and Jennings S5877 applied - Ss.53(7), 84, 88E, 92b, 96(b)(1) and 116(1) Workers Rehabilitation and Compensation Act, 1986 - Rules 4(2) and 5(4) Workers Compensation Tribunal Rules 1996.