Details 

Created: 17 April 2020

The Commission has issued an order that the applicant’s legal representative in another jurisdiction produce documents that are not subject to legal professional privilege in compliance with a summons.

At a preliminary hearing in relation to jurisdiction, the applicant claimed that she was “forced into resigning” in such a way as to make the ending of her employment a ‘constructive dismissal’. The respondent argued that the resignation was ‘voluntary’ and was part of the settlement of her workers’ compensation claim. The hearing did not resolve the matter of whether the applicant had been ‘dismissed’.

After the preliminary hearing, the respondent sought, by way of summons directed to the applicant’s legal representative for the worker’s compensation matter, four sets of documents. This included any file notes from the conciliation conference that led to the settlement of the applicant’s workers’ compensation claim, as well as documents containing any advice given by the applicant’s legal representative to the applicant.

The respondent argued that the applicant, in the furtherance of her case, deployed each of the documents sought and, accordingly, should be taken to have waived legal professional privilege. The respondent claimed that production of the documents would show that the circumstances were not as the applicant alleges. The respondent argued it would be unfair for the applicant to assert privilege where that is the case. 

The recipient of the summons resisted production of the documents on the basis that each and all are the subject of legal professional privilege.

The Commission found that legal professional privilege had not been relevantly waived by the applicant stating she did not receive “advice per se” whether or not to accept the settlement offer at the workers’ compensation conciliation conference. The Commission determined that the applicant’s state of mind insofar as it was created or influenced by the respondent was the relevant factor to determine the issue of ‘constructive dismissal’, not how her state of mind was affected by any advice she did, or did not, receive from her advisors. The Commission found that while the applicant having access to competent legal counsel will be relevant, the advice that was given will not be particularly relevant.

The Commission ordered that the recipient of the summons provide any notes taken by the applicant’s representatives at the workers’ compensation conciliation conference, where those notes are of events at which representatives of the respondent were present, to the Western Australian Industrial Relations Commission.

The decision can be read here.