A recent NSW Case, Inspector Anthony Nicholson (WorkCover
Authority of NSW) v Waco Kwikform Ltd1 ('the
Waco case'), has again highlighted the importance of
legal professional privilege (also known as client legal privilege)
in the OHS setting.
What is legal professional privilege?
The aim of the privilege is to protect the confidentiality of
communications made for the dominant purpose of giving or obtaining
legal advice or in anticipation of legal proceedings. The rationale
behind the privilege is that people should be able to freely seek
and obtain legal advice, or legal assistance for anticipated
litigation, without fear that their communications will be
disclosed later on. In the OHS context, the privilege allows
companies to investigate an incident without 'fear or
favour' and use that information to obtain full and frank legal
advice or prepare for anticipated legal proceedings.
How was the privilege applied in the Waco case?
The Waco case considered whether internal investigation
materials and reports produced by a construction company, following
an incident where a worker was fatally injured, were privileged.
The report was commissioned by Waco's external lawyers.
However, WorkCover NSW argued that the investigation documents were
created for 'multiple purposes' including to achieve
compliance with a Waco policy document requiring all accidents and
injuries to be recorded and reported.
Ultimately, the Court held that the documents were privileged
and did not need to be provided to WorkCover NSW. The Court found
that the documents were created for the dominant purpose of
obtaining legal advice and relied on the fact that the report was
commissioned by external lawyers whose letter to Waco commissioning
the report stated that the only purpose for producing the report
was so that they could provide legal advice. The documents were
intended to be kept confidential (indicated by the lawyers'
direction to mark the documents "privileged and
confidential") and the mere existence of the Waco reporting
policy, did not point to a competing purpose.
How can your business manage privilege following an OHS
One way to manage OHS incidents and questions of privilege, is
for each business to consider the circumstances in which they could
require legal advice or legal assistance. These circumstances might
be categorised as 'critical incidents'. We recommend that
businesses treat incidents that are notifiable to the enforcement
authority under the relevant OHS Act as 'critical
incidents'. This is because notifiable incidents are most
likely to give rise to involvement by the enforcement authority and
a reasonable anticipation of future litigation.
Once the business has decided which incidents will be
'critical incidents', it should consider putting into place
certain steps to assist in establishing privilege for any of its
communications which are created for the dominant purpose of
obtaining legal advice or in anticipation of litigation. The key to
establishing whether a communication (including an investigation
report) was brought into existence for the dominant purpose of
obtaining legal advice or in anticipation of litigation, is the
intention of the person who created the document or commissioned
Therefore, careful consideration should be given to identifying
the right person to commission or undertake the incident
investigation. Involving lawyers in the immediate aftermath of a
critical incident will assist in establishing privilege for
communications arising from the investigation.
If you would like to discuss privilege and OHS incidents, or any
other OHS issues affecting your business, please contact one of the
members of Deacons National OHS team.
1. 2009] NSWIRComm 123 (30 July 2009)
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.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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