In the course of ongoing proceedings for representation orders under s72A of the Industrial Relations Act 1979, the Commission in Court Session was required to determine whether documents in the possession of the applicant union (WASU) and an intervenor (WALGA), were privileged from production.

 

The documents in the lists were all communications that passed between WASU’s lawyers, WALGA’s employees and lawyers, and witnesses, exchanged while the s72A proceedings were on foot, and related to the s72A proceedings.

 

Another union party to the proceedings (CFMEU) sought production of the documents, and challenged WASU and WALGA’s privilege claims.

 

The CFMEU argued that the principles in relation to legal professional privilege included a rule that communications between parties to proceedings could not be the subject of the privilege. The Commission in Court Session found that the rule did not apply to any and all communications between any parties, but rather applied to opposing parties only. WASU and WALGA were not opposing parties in the proceedings. Rather, they had common interests, albeit not identical interests.

 

Because WASU and WALGA had common interests, the communications between them remained confidential, and common interest privilege principle meant that documents which would ordinarily have been the subject of legal professional privilege, remained privileged in the hands of both parties.

 

Accordingly, the Commission in Court Session upheld the privilege claims and declined to make an order for production of the documents.

 

The decision can be read here.