Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Order to produce documents; claim of legal professional privilege over documents; claim of client legal privilege; dominant purpose; waiver; Claims upheld and request for access to documents denied.

[1] On 9 December 2019, the Applicant made application pursuant to s.590(2)(c) for orders requiring the Respondent to produce documents (the "Order for Production") relating to the investigation into the allegations made against the Applicant, including the report the findings of which formed the basis of Opera Australia's decision to dismiss the Applicant.

[2] The Order for Production sought specifically:

"1 Copies of the investigation reports prepared by Mr Maurice Baroni dated 1 July 2019 and 2 September 2019 (Investigation Reports) referred to in the letter from Mr Rory Jeffes, Chief Executive Officer, Opera Australia to Ms Vanessa Lewis dated 3 0 October 2019 (Termination Letter).

Copy of any other investigation reports prepared by Mr Baroni relating to the investigation referred to in the Termination Letter (Investigation) (Other Investigation Reports).

Copies of any drafts of the Investigation Reports or Other Investigation Reports.

Copies of any letters of instruction, terms of reference or other documents engaging Mr Baroni to undertake the Investigation.

Copies of any reports or any document recording complaints from any of the Respondent's employees to the Respondent about the matters that were the subject of the Investigation.

Copies of all documents recording any discussion or interview with any of the Respondent's employees who were interviewed in the course of the Investigation. 6. For the purpose of the above 'documents' includes a letter, report, diary note, file note, briefing paper, minute, memorandum, email communication, facsimile transmission, SMS, direction, instruction, map, plan, drawing or photograph or any similar form of written or electronic communication, report or record including a draft or copy of same, and the singular should be taken to include the plural."

[3] The substantive Hearing of the matter is listed for 22 January 2020.

[4] The Respondent provided the Fair Work Commission (the "Commission") with a bundle of documents (the "Bundle") that responded to paragraphs 1, 3, 4 and 5 of section 1.1 of the Order of Production, and which included records or information over which legal professional privilege is claimed by the Respondent under common law and in accordance with s118 of the Evidence Act 1995 (NSW). That material was provided to the Commission on a confidential basis for the determination of the claim for privilege. The index to that bundle identified the following documents:

Email from Maurice Baroni to Alishan Megerdichian titled "Private and Confidential - Investigation Report" and attachment

Email from Maurice Baroni to Alishan Megerdichian copied to Jessica Platts and Tammy Cootes titled "Re: Vanessa Lewis" and attachments

Email from Jessica Platts to Tammy Cootes and Alishan Megerdichian titled "Request for advice" and attachment

Email from Alishan Megerdichian to Jessica Platts and copied to Tammy Cootes titled "RE: Request for advice" and attachment

Email from Jessica Platts to Maurice Baroni and copied to Alishan Megerdichian titled "FW: Request for advice" and attachment

Email from Tammy Cootes to Alishan Megerdichian titled "FW: Vanessa Lewis [SWA-AB.FID251857] - Request for legal advice" and attachment

Email from Alishan Megerdichian to Maurice Baroni and copied to Jessica Platts and Tammy Cootes titled "Vanessa Lewis" and attachment

Email from Alishan Megerdichian to Maurice Baroni and copied to Jessica Platts and Tammy Cootes titled "FW: Vanessa Lewis" and attachments

Email from Maurice Baroni to Alishan Megerdichian and copied to Jessica Platts and Tammy Cootes and attachments

Email from Jessica Platts to James Pomery (Gilbert and Tobin) and Jacqui Ellis (Gilbert and Tobin) titled "RE: AB2019/22 - Application by Lewis [SWA-AB.FID251853]"

Document prepared by Gilbert and Tobin titled "Brief to investigator"

Email from Tammy Cootes to Maurice Baroni and copied to Jessica Platts and Alishan Megerdichian titled "Opera Australia - investigation in relation to the conduct of Ms Vanessa Lewis"

[5] Both the Respondent and the Applicant, on 8 and 12 January 2020, respectively, provided the Commission with comprehensive and helpful Submissions on the question of privilege.

[6] On 15 January 2020, at 4.23pm, the Respondent forwarded an email to my Chambers and the Applicant's representative in the following terms:

"We refer to the Applicant's Form F52 Application for an order for the production of documents (Application), and the parties' respective submissions and statements in relation to the Application.

The Respondent maintains its position, as set out in its submissions dated 8 January 2020, that the documents the subject of the Application are privileged and should not be produced.

However, to facilitate these proceedings, we are instructed that our client agrees to waive privilege, on a limited basis, over the following documents:

• Mr Baroni's independent investigation report dated 1 July 2019, although received 5 July 2019; [Attachment to item 1 in the list to the Bundle]

• Mr Baroni's supplementary independent investigation report dated 2 September 2019 [Attachment to item 2 in the list to the Bundle]; and

• Emails from Annette Widitz to Jessica Platts dated 13 February 2019 [Referred to, and requested, in the Applicant's submissions of 13 January 2020].

This waiver applies only to these documents and only for the purposes of these proceedings. The Respondent does not waive privilege over any of the remaining material identified in the statement of Alishan Megerdichian dated 8 January 2020.

We are instructed to separately provide the above documents to the Applicant's representative and will do so today.

We understand that the Applicant continues to press the production of the remainder of the material that is subject to a claim of legal professional privilege. The Respondent opposes the production of that material and considers inspection of the documents identified in this email ought to resolve the Application before the Commission.

Please do not hesitate to contact me if you would like further information regarding this matter."

[6] Subject to the waiver concessions outlined in the above email, I uphold the Respondent's claims of legal professional privilege over the remaining documents in the Bundle, and I refuse the application by the Applicant to access those documents.

[7] I intend to provide reasons for this Interlocutory Decision in the Decision in the substantive matter. Should either the Applicant or the Respondent require reasons for this Interlocutory Decision prior to the substantive Hearing of the matter is listed for 22 January 2020, a request for such reasons should be made by 12.00pm on 17 January, 2020.

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