Prewett v Oceaneering Australia Pty Ltd

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. On 19 January 2026 the lawyer for Ms Prewett, the applicant in this Fair Work application, sent an email to the lawyer for Oceaneering Australia Pty Ltd (Oceaneering Australia), the respondent, requiring two documents be produced for production.[1] Both documents were documents referred to in an affidavit of Ms Dawn Keske filed on 12 December 2025 on behalf of Oceaneering Australia.
2. The request was made pursuant to r 16.12 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth), which provides:

(1) A party (the first party) may serve on another party (the second party) a notice to produce for the inspection of any document mentioned in a pleading, affidavit or list of documents filed by the second party.

(2) Within 4 days after being served with the notice to produce, the second party must serve the first party with a notice:

(a) stating:

(i) a time, within 7 days after service of the notice, when the document may be inspected; and

(ii) a place where the document may be inspected; or

(i) that the document is not in the second party's control; and

(ii) to the best of the second party's knowledge - where the document is and in whose control it is; or

(c) claiming that the document is privileged and stating the grounds of the privilege.

(3) If the second party does not comply with paragraph (2)(a) or (b) or claims that the document is privileged, the first party may apply to the Court for an order for production for inspection of the document.

1. Oceaneering Australia produced one document in full by emailing it to Ms Prewett's lawyer. Oceaneering Australia also produced the other document, save for some words that had been redacted on the basis that Oceaneering Australia claims legal professional privilege over that part of the document. The document over which a claim of legal professional privilege is made is an email from Ms Keske to Mr Grant McGregor sent on 7 October 2024.
2. By way of an interlocutory application filed on 2 February 2026, Ms Prewett seeks the following order:

The Respondent is ordered to produce an unredacted copy of the email Ms Keske sent to Mr McGregor on 7 October 2024 referred to in paragraph 80 of Ms Keske's affidavit filed on 12 December 2025 by 4:30pm on 23 February 2026.

1. The parties requested that the Court determine this aspect of the interlocutory application on the papers. I endeavoured to do so, but there was one issue that I needed to raise with the parties as a matter of procedural fairness and therefore requested that the parties attend Court for a mention. This is addressed below and the parties were given an opportunity to file additional material.
2. The evidence before the Court relevant to the determination of the privilege claim comprises:

(a) an affidavit of Martin James Koshy sworn on 30 January 2026 and filed on behalf of Ms Prewett; and

(b) two affidavits of Olga Janina Klimczak affirmed on 9 February 2026 and 7 April 2026 respectively and filed on behalf of Oceaneering Australia.

THE CONTEXT OF THE COMMUNICATION OVER WHICH PRIVILEGE IS CLAIMED

1. In her affidavit filed on 12 December 2025, Ms Keske referred to a complaint she received from Ms Prewett by email sent on 6 October 2024 in relation to conduct between 26 July 2024 and 1 August 2024. After referring to the substance of the complaint, Ms Keske deposed at [80]:

When I read this email, I remember thinking that Mr Rohloff had already told me about Ms Prewett raising these concerns with him. He had been transparent with me about this so Ms Prewett's email did not come as a surprise. I did not think that the events she described amounted to harassment, bullying or targeting. This is why I said in my email to Mr McGregor on 7 October 2024 that I did not see any reason for a formal investigation of these matters.

1. The email Ms Keske sent to Mr McGregor on 7 October 2024 forwards a lengthy email chain between Ms Keske and Ms Prewett, including the email of 6 October 2024 from Ms Prewett that Ms Keske referred to in her affidavit. The text of Ms Keske's communication to Mr McGregor, omitting the part over which legal professional privilege is claimed, reads:

Another email from Liz, and she uses the "duty of care" phrase. I know for sure that Jeff talked to Jason about his communications to Liz. Jason told me Jeff had talked to him and that he was now avoiding Liz so as not to cause any further issues. This is old stuff from August that she's bringing up, and I don't see any reason for a formal investigation, [words over which legal professional privilege is claimed are redacted].

1. Oceaneering Australia explains the claim of legal professional privilege in an affidavit of Olga Klimczak affirmed on 9 February 2026. In this affidavit, Ms Klimczak deposed:
   1. Mr McGregor is HSF Kramer's primary instructor with respect to these proceedings.

7. I am instructed by Mr McGregor and believe that:

(a) Mr McGregor is a lawyer admitted to practice law in Scotland;

(b) Mr McGregor is employed by Oceaneering International Inc, a related body corporate of the Respondent;

(c) Mr McGregor holds the role of Legal Counsel and he has held this role since around July 2024;

(d) in his role, Mr McGregor is responsible for managing legal matters and proceedings on behalf of, and providing advice to, Oceaneering and its related bodies corporate in the Eastern Hemisphere, including in Europe, Africa, the Middle East and the Asia Pacific, including in Australia, including the Respondent;

(e) on 7 October 2024, Ms Dawn Keske sent an email to Mr McGregor in his capacity of Legal Counsel ...; and

(f) part of the email contains a communication over which the Respondent claims legal professional privilege. That part of the email over which privilege has been claimed has been redacted in the copy of this email which is found at page 10 of annexure MJK-2 to the Affidavit of Martin James Koshy sworn on 30 January 2026.

1. I am instructed by Dawn Keske and believe that the sole purpose for which she created that part of the email that is redacted was to obtain legal advice.

1. In submissions opposing the interlocutory application filed by Ms Prewett, Oceaneering Australia submitted that all parts of the email referred to at [80] of Ms Keske's affidavit are visible in the redacted version of the email that was provided to Ms Prewett's lawyers.
2. Ms Prewett did not originally advance any specific reason why she challenges the claim of privilege.
3. At the mention on 26 February 2026, I invited Counsel for Oceaneering Australia to explain the basis on which privilege is claimed over the communication to Mr McGregor, in circumstances where the evidence suggests he is admitted to practise law in Scotland and there is no evidence to suggest that he is admitted to practise law in Australia or that the communication was made for the purpose of seeking advice in relation to Scottish law.
4. Following this, both parties filed additional submissions.
5. Oceaneering Australia submitted, in summary, that Mr McGregor's admission as a foreign lawyer has no relevance to the question of legal professional privilege as:

(a) legal professional privilege is a fundamental common law right that is not restricted to geographical nexus;

(b) denying legal professional privilege for advice sought from Mr McGregor as a lawyer admitted in a foreign jurisdiction would be inconsistent with the rationale of legal professional privilege, the administration of justice and modern commercial realities, particularly of multi-jurisdictional organisations;

(c) the dominant purpose of Ms Keske's email to Mr McGregor was to obtain legal advice; and

(d) legal professional privilege is not restricted to advice concerning the law within the advisor's jurisdiction of admission, and evidence of such qualification is unnecessary.

1. Ms Prewett did not directly address the questions I raised at the mention regarding Mr McGregor's status as a foreign lawyer and the impact that this may have on any privilege claim. Rather, Ms Prewett submitted that:

(a) there was no probative evidence before the Court to show that Mr McGregor was a lawyer at the relevant time of the communication and was permitted to engage in legal practice in the country in which he was located; and

(b) there is no evidence that the words of Ms Keske in her email to Mr McGregor, which are the subject of the privilege claim, were created for the dominant purpose of seeking legal advice.

1. The second affidavit of Ms Klimczak was filed to address some of the issues raised by Ms Prewett.

CONSIDERATION OF THE LEGAL PROFESSIONAL PRIVILEGE CLAIM

1. It is for Oceaneering Australia, as the party claiming legal professional privilege, to show that the part of the document over which the claim is made is privileged: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689. The principles in relation to the consideration of claims of legal professional privilege were neatly summarised in AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234 at [44] and I have had regard to those principles in this case.
2. Having regard to the issues addressed by the parties, as well as the general principles relating to claims of legal professional privilege, the two main issues to be addressed in this case relate to Mr McGregor's status as a lawyer and whether the dominant purpose of Ms Keske's communication was to seek legal advice.

1. I accept that Mr McGregor is and was at all material times a lawyer entitled to practise law in Scotland. The evidence in Ms Klimczak's affidavit of 9 February 2026 indicates that Mr McGregor is a lawyer admitted to practise law in Scotland and he has been employed by Oceaneering International (the parent company of Oceaneering Australia) as legal counsel since July 2024. Ms Klimczak's second affidavit of 7 April 2026 annexes a document which is said to be obtained from a search of the Scottish database of practising solicitors on the website of the Law Society of Scotland, accessed on 20 March 2026. This document shows that Mr McGregor was admitted on 3 March 2016 and works for Oceaneering International. Ms Klimczak's second affidavit also annexes a copy of Mr McGregor's practising certificate for 2025-2026. Although the practising certificate does not cover the date of 7 October 2024, when Ms Keske sent her email to him, Ms Klimczak deposed in her second affidavit:

I am instructed by Mr McGregor and I believe to be true that at the time Ms Dawn Keske sent the email defined as the "7 October 2024 Email" in my February Affidavit, he was a lawyer certified to practice law in Scotland.

1. Ms Prewett submitted that Mr McGregor has not provided an affidavit to indicate his employment with Oceaneering International, the fact of his admission and right to practise as a legal practitioner, that he was asked to provide advice in the words of Ms Keske's email of 7 October 2024 over which privilege is claimed or that he provided legal advice to Ms Keske, acting on behalf of Oceaneering Australia.
2. It is true that Mr McGregor has not personally provided an affidavit, but that does not mean that Ms Klimczak's evidence is not sufficient. I am satisfied, on the basis of Ms Klimczak's evidence, that Mr McGregor was a lawyer entitled to practise in Scotland and employed by Oceaneering International as legal counsel when Ms Keske sent him an email on 7 October 2024. There is nothing before the Court to suggest that that evidence is unreliable in any way.
3. I now address whether the fact that Mr McGregor was not admitted to practise law in Australia may impact whether privilege might attach to any communication made to him for the dominant purpose of seeking legal advice.
4. I accept the submission advanced by Oceaneering Australia that the fact Mr McGregor was admitted to practise law in Scotland does not mean that legal professional privilege cannot attach to a request for legal advice made to him. In Kennedy v Wallace (2004) 142 FCR 185; [2004] FCAFC 337 (Kennedy), Allsop J (with whom Black CJ and Emmett J agreed: see [62]) explained at [198]-[199] that the rationale for legal professional privilege is to 'serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers' and that the notion of administration of justice is not limited by 'territorial or geographical nexus' and is 'wider than the carrying on of the court system in Australia and the vindication and protection of rights in Australia'. Where there is evidence that a lawyer is admitted in a foreign country, it is unnecessary to require evidence about legal and ethical practices in that jurisdiction and control by foreign courts: Kennedy at [203].
5. I also accept that the fact that the request for legal advice was (presumably) in relation to a matter concerning Australian law, rather than the law in the jurisdiction in which Mr McGregor was admitted, does not mean that legal professional privilege cannot apply. In Ritz Hotel Ltd v Charles of the Ritz Ltd (No 4) (1987) 14 NSWLR 100 at 101, McLelland J accepted that 'legal professional privilege is not confined to legal advice concerning or based on the law of the particular jurisdiction in which the giver of the advice has his formal qualification'. Thus, a communication made to Mr McGregor by or on behalf of Oceaneering Australia for the dominant purpose of seeking legal advice about a matter concerning an Australian employee can attract legal professional privilege.

1. In opposing the claim of legal professional privilege, Ms Prewett submitted that there is no evidence before the Court that the words over which privilege is claimed constituted a communication in the nature that attracts legal professional privilege, including because there is no evidence that the words were created for the dominant purpose of Ms Keske seeking legal advice. Ms Prewitt referred to [80] of Ms Keske's affidavit, extracted at [7] above and submitted that Ms Keske did not claim in that paragraph that she sought legal advice.
2. I do not accept this submission for two reasons.
3. First, there is evidence before the Court of the purpose for which Ms Keske sent the email. Ms Klimczak deposed at [8] of her first affidavit, extracted at [9] above, that she is instructed by Ms Keske that the sole purpose of creating that part of the email of 7 October 2024 over which privilege is claimed was to obtain legal advice. This evidence has not been challenged.
4. Second, I do not infer from the absence of any reference to seeking legal advice in Ms Keske's affidavit that this means that she did not create that part of the document over which privilege is claimed for the sole or dominant purpose of seeking legal advice. There is no claim of privilege over that part of the 7 October 2024 email which is referred to in Ms Keske's affidavit, and if Oceaneering Australia is not relying, in the substantive proceeding, on the part of the email over which privilege is claimed, there is no reason why Ms Keske would be expected to refer to seeking legal advice in her affidavit.
5. There is nothing in Ms Keske's affidavit, or on the face of the non-privileged part of the 7 October 2024 email, which is inconsistent with the claim of legal professional privilege.
6. In circumstances where:

(a) the communication in the 7 October 2024 email was made from Ms Keske to Mr McGregor, legal counsel for Oceaneering International;

(b) there is evidence before the Court to suggest that Ms Keske created the relevant part of the email for the sole purpose of seeking legal advice;

(c) there is no suggestion that Mr McGregor was not acting in an independent capacity in his role as in house legal counsel; and

(d) nothing in the evidence before the Court indicates that Ms Keske, in the relevant communication, was not seeking legitimate legal advice,

I accept that Ms Keske created the part of the email over which privilege is claimed for the sole or dominant purpose of seeking legal advice.

Conclusion on legal professional privilege claim

1. It follows from the discussion above that I accept that legal professional privilege attaches to that part of the email of 7 October 2024 from Ms Keske to Mr McGregor that was made for the dominant purpose of seeking legal advice.

1. Given that I have accepted Oceaneering Australia's claim of legal professional privilege in relation to the email of 7 October 2024, I refuse to grant Ms Prewett's application to require Oceaneering Australia to provide an unredacted copy of that document.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

[1] The notice for production and the response to the notice are annexed to an affidavit of Martin James Koshy sworn on 30 January 2026 and filed on behalf of Ms Prewett.