Australia: Privilege in work health & safety matters - caution required

Last Updated: 30 October 2014
Article by Lisa Berton

Victorian Case

On 13 August 2014 the County Court of Victoria in Victorian WorkCover Authority v Asahi Beverages Australia Pty Ltd (Ruling) [2014] 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 privilege).
  • Potential recovery proceedings against a third party (which would trigger the privilege).
  • Whether a claim on the insurance policy should be accepted.

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 privilege.

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 regulator.

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 maintained.

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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