On 13 August 2014 the County Court of Victoria in Victorian
WorkCover Authority v Asahi Beverages Australia Pty Ltd (Ruling)
 VCC 1260 (Asahi Case) dealt with a dispute whereby Asahi
attempted to gain access to investigation reports commissioned by
an insurer. The insurer claimed privilege on the basis that the
report was prepared:
for the dominant purpose of obtaining or providing
legal advice in respect of actual, threatened, contemplated or
reasonably anticipated litigation...
In that case Judge O'Neill held that the reports were
arguably brought into existence for three reasons, namely:
Possible contemplated litigation (which would trigger the
Potential recovery proceedings against a third party (which
would trigger the privilege).
Whether a claim on the insurance policy should be
In order to successfully maintain a claim for privilege, it was
necessary that either reasons 1 or 2 above were the dominant
reasons for the report's commission.
Referring to various cases where privilege was challenged, his
Honour noted that with respect to the dominant purpose of the
document being created the "touchstone should be the element
of paramountcy". On this basis it was held that whilst the
reports could be used for potential litigation, this was not the
dominant purpose for their creation, rather they were created to
investigate the circumstances of the incident and whether it would
trigger a claim under the policy of insurance.
Importantly his Honour drew a distinction between the
circumstances in this case and where reports are commissioned by
lawyers specifically to advise parties as to legal liability and
quantum. In such circumstances, bolstered by the fact external
lawyers were engaged, privilege was able to be maintained.
Why is privilege important for WHS?
A lot of talk around privilege arises in the context of work
health and safety incidents, in particular where a stage is reached
in which the relevant state regulator (eg WorkCover NSW) is
investigating a matter.
The powers of state health and safety regulators are wide
ranging, even removing the ability in some circumstances to avoid
self incrimination. However, the powers of the regulators cannot
override legal professional privilege in many circumstances. By way
of example, section 269 of the Work Health and Safety Act 2011
(NSW) provides that:
[n]othing in this Act requires a person to produce
a document that would disclose information, or otherwise provide
information, that is the subject of legal professional
On this basis, ensuring privilege has been properly established
in WHS matters allows businesses to get advice about their existing
WHS practices and legal liability in relation to the specific
incident without needing to "show your hand" to the
When can privilege be claimed?
It is important that privilege is established as soon as
possible after a WHS incident has occurred. Such privilege may
arise because of the pending litigation discussed above or also
because the dominant purpose of the creation of documents is for
obtaining legal advice.
Care needs to be taken about "dominant" in light of
the Victorian case. Where multiple purposes exist for the creation
of a document it is unlikely that Courts will maintain any
privilege and allow materials to be provided to the regulator. Such
examples often arise when businesses engage investigators directly
or otherwise in-house counsel prepares or instructs the preparation
of report wearing both their "lawyer hat" and
"company hat" (that is, the report is for legal advice
but also for commercial discussion within the company).
A prudent course of action with respect to any WHS incidents
would be to contact your external legal advisors as soon as you
become aware of the incident – they should be in a position
to advise you as to next steps and if/how privilege should be
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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