APPLICATIONS PURSUANT TO S 72A

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00413

DELIVERED : FRIDAY, 11 JULY 2025

FILE NO. : CICS 5 OF 2023

Second Intervenor

FILE NO. : CICS 8 OF 2023

Second Intervenor

FILE NO. : CICS 9 OF 2023

Second Intervenor

Catchwords : Industrial Law (WA) – Interlocutory application challenging claim for legal professional privilege – Whether communications and documents are subject to privilege – Privilege maintained

Legislation : Evidence Act 1995 (NSW) s 117

Industrial Relations Act 1979 (WA) s 26(1)(a), s 72A 

Result : Application dismissed

Representation:

Applicant Ms RJ Webb KC of counsel and with her Mr T Lettenmaier of counsel on behalf of the Western Australian Municipal, Administrative, Clerical and Services Union of Employees

Respondent Mr O Fagir of counsel and with him Mr M Cox of counsel on behalf of the Construction, Forestry, Mining and Energy Union of Workers

Second

Intervenor Mr K de Kerloy SC of counsel and with him Mr J Creese of counsel on behalf of the Western Australian Local Government Association

Case(s) referred to in reasons:

Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1998] FCA 237; (1998) 81 FCR 526

Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232

Australian Reliance Group Pty Ltd v Coverforce Insurance Brokers Victoria Pty Ltd (No 2) [2017] WASC 41

AW v Rayney [2010] WASCA 161

AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382

Aydin v Australian Iron and Steel Pty Ltd [1984] 3 NSWLR 684

Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52

Bulk Materials (Coal Handling) Services Pty Ltd v Coal & Allied Operations Pty Ltd (1988) 13 NSWLR 689

Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181

Crawford v Quail [2021] WASC 290

Cygnett Pty Ltd (ACN 106 996 114) v Souris [2020] FCA 1754

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543

Edwards v Nine Network Australia Pty Ltd (No 4) [2022] FCA 1496

Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49

Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] NSWSC 259; (1996) 39 NSWLR 601

Grant v Downs [1976] HCA 63; (1976) 135 CLR 674

Hamilton v New South Wales [2016] NSWSC 1213

Health Services Union of Western Australia (Union of Workers) v Director General of Health in Right of the Minister for Health as the Metropolitan Health Service, the South West Health Board and the WA Country Health Service [2008] WAIRC 00215; (2008) 88 WAIG 543

Herridge v Electricity Networks Corporation (t/as Western Power) [2016] WASC 372

IO Group Inc t/as Titan Media & Ors v Prestige Club Australia Pty Ltd & Ors (No 3) [2008] FCA 1223

Kennedy v Lyell (No 2) [1884] 4 WLUK 26; (1883) 23 Ch D 387

Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1

Media Ocean Ltd v Optus Mobile Pty Ltd (No 10) [2010] FCA 1348

Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275

Players Pty Ltd (In Liquidation) (Receivers Appointed) & Ors v Clone Pty Ltd [2013] SASCFC 25; (2013) 115 SASR 547

Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151; (2007) 242 ALR 181

Schreuder v Murray [No 2] [2009] WASCA 145; (2009) 260 ALR 139

Spenceley v Schulenbugh (1806) 103 ER 138

Sugden v Sugden [2007] NSWCA 312; (2007) 70 NSWLR 301

Rayney v AW [2009] WASCA 203

Re applications by the Australian Workers Union, West Australian Branch, Industrial Union of Workers & Anor (1999) 79 WAIG 2998

Re an application by Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch & Ors (2000) 80 WAIG 4615

Re applications by Hospital Salaried Officers Association of Western Australia (Union of Workers) & Anor (1996) 76 WAIG 1673

Re an application by the Metals and Engineering Workers Union – Western Australian Branch & Ors (1994) 74 WAIG 1507

Re applications by the Transport Workers Union of Australia, Industrial Union of Workers, Western Australian Branch & Anor (1996) 76 WAIG 4877

Registrar v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch [2007] WAIRC 00502; (2007) 87 WAIG 1199

Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244

UIL (Singapore) Pte Ltd v Wollongong Coal Ltd) [2023] FCA 1578

Waugh v British Railways Board [1980] AC 521; (1979) 2 All ER 1169

Western Australian Municipal, Administrative, Clerical and Services Union of Employees & Ors [2025] WAIRC 00188; (2025) 105 WAIG 592

Western Australian Municipal, Administrative, Clerical and Services Union of Employees & Ors v (Not Applicable) [2024] WAIRC 00907; (2024) 104 WAIG 2304

Western Australian Municipal, Administrative, Clerical and Services Union of Employees & Ors v (Not Applicable) [2024] WAIRC 00910; (2024) 104 WAIG 2307

Woodings as Liquidator of The Bell Group Ltd and The Bell Group Finance Pty Ltd v WA Glendinning & Associates Pty Ltd [2019] WASC 54

Reasons for Decision

THE COMMISSION IN COURT SESSION:

1         This decision is the second sequel to the decision of 17 October 2024: Western Australian Municipal, Administrative, Clerical And Services Union of Employees & Ors v (Not Applicable) [2024] WAIRC 00907; (2024) 104 WAIG 2304.  We will refer to that decision as the Production Reasons.

2         The relevant background is set out in the Production Reasons. To recap: on 17 October 2024 the Commission in Court Session made an order [2024] WAIRC 00910; (2024) 104 WAIG 2307 requiring the Western Australian Municipal, Administrative, Clerical and Services Union of Employees (WASU) and the Western Australian Local Government Association (WALGA) to produce any documents passing between them relating to evidence that has been given or is to be given in these proceedings, subject to claims of legal professional privilege.  More particularly, the orders the Commission made were:

(1) THAT as to the evidence that has been given or is to be given in these proceedings any documents passing between the WASU and the WALGA that relate to that evidence and which are not subject to a claim of legal professional privilege are to be produced by the WASU and the WALGA for inspection by the CFMEU by no later than 4.00 pm Thursday, 24 October 2024.

(2) THAT any claim of legal professional privilege by either the WASU or the WALGA is to be the subject of affidavit evidence identifying by list the documents the subject of the claim of privilege, such affidavit to be put on by 4.00 pm Thursday, 24 October 2024.

(3) THAT otherwise the proceedings will continue to be heard subject to:

(a) the WASU examination of the WALGA remaining witnesses is not to involve leading questions and is to be confined to matters arising in the witnesses’ evidence in chief; and

(b) the CFMEU being given liberty to apply to recall any WALGA witness(es).

(4) THAT there be liberty to apply on short notice.

(Production Order)

3         The WASU and the WALGA each subsequently filed affidavits in accordance with order 2. They both provided a list of some 94 documents being communications passing between them concerning the evidence that has been or is to be given in these proceedings and claimed legal professional privilege against production of all of them.

4         The Construction, Forestry, Mining and Energy Union of Workers (CFMEUW) challenges the privilege claims, and seeks production of the documents over which privilege is claimed.

5         These are our reasons for upholding the privilege claims.

Litigation privilege and communications with third parties: general principles

6         The following key principles which apply generally are well known and uncontentious.

7         Legal professional privilege is a rule of substantive law and is ‘an important common law right or, perhaps, more accurately, an important common law immunity’: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 (Daniels) at [11].

8         The privilege may be invoked by a person to resist giving information or producing documents that would reveal confidential communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings: Daniels [9]‑[11], [44]; Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [35].

9         The cases have generally distinguished between two aspects, or two limbs, to the privilege, namely legal advice privilege and litigation privilege: Schreuder v Murray [No 2] [2009] WASCA 145; (2009) 260 ALR 139 at [59].  Commentators have suggested a third category, third party privilege, is warranted, as an extension of litigation privilege: Desiatnik R J, Legal Professional Privilege in Australia (4th Ed 2025) at 31. 

10      Lockhart J in Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 at 246 provided a useful description of seven classes of documents falling within the categories of privilege. Relevant to litigation privilege and third party communications, his Honour described:

…

(d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client’s legal adviser to enable him to advise the client or to conduct litigation on his behalf. See Woolley v. North London Railway Co. [(1869) LR 4 CP 602], Greenough v. Gaskell [(1833) 39 ER 618]; Corporation of Bristol v. Cox [(1884)26 Ch D 678]; Woolley v. Pole [(1863) 143 ER 556]; Seabrook v. British Transport Commission [[1959] 1 WLR 509]; Grant v. Downs [(1976) 135 CLR 674], and Bray, Principles and Practice of Discovery (1885) pp. 388‑389.

(e) Communications and documents passing between the party’s solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. See Wheeler v. Le Marchant [(1881) 17 Ch D 675]; Laurenson v. Wellington City Corporation [[1927] NZLR 510], and O’Sullivan v. Morton [[1911] VLR 70].

(f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party’s solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. See Wheeler v. Le Marchant [(1881) 17 Ch D 675]; Cork v. Union Steamship Co. [(1904) 23 NZULR 933], and In Re Holloway [(1887) 12 PD 167].

(footnotes omitted)

11      Litigation privilege can be claimed where litigation is subsisting or within the reasonable contemplation of the client, and applies to confidential communications passing between a lawyer and his or her client or between the lawyer and third parties, and confidential information or documents brought into existence, for the dominant purpose of preparing for the litigation: Schreuder at [59].

12      The party claiming privilege carries the onus of proving the claim: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689.  What is required to establish the privilege claim will vary depending on the nature of the document, the particular ground on which privilege is claimed and the description of the document given: Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181 at [71].

13      The onus might be discharged by pointing to the nature of the documents, or by admissible evidence addressing each element of privilege in relation to each document.  It might also be discharged by reference to the nature of the documents, supported by argument or submissions: AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382 [110]‑[112]; Australian Reliance Group Pty Ltd v Coverforce Insurance Brokers Victoria Pty Ltd (No 2) [2017] WASC 41 at [59].

14      The existence of legal professional privilege is not established merely by the use of verbal formula or mere assertion: Esso at [52].

15      Absent sufficient evidence from the party claiming the privilege, the court will not inspect the documents but will simply reject the claim of privilege.  However, where a party who has claimed privilege has provided proper substantiation, but there remains uncertainty or dispute, the court can inspect the documents to ensure there has been no misuse of legal professional privilege: Herridge v Electricity Networks Corporation (t/as Western Power) [2016] WASC 372 at [3].

16      The purpose for which a document is brought into existence is a question of fact that must be determined objectively, but the subjective purpose will always be relevant and may often be decisive: AW v Rayney [2010] WASCA 161 at [25]; Esso at [172]; AWB Ltd at [102], [110].

17      The purpose of the litigation limb of the privilege has been said to be to avoid the subversion of the court’s procedure for conducting adversarial litigation.  For instance, in Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 Brennan J cited Lord Simon in Waugh v British Railways Board [1980] AC 521; (1979) 2 All ER 1169 at 108:

[A]s you have no right to see your adversary’s brief, you have no right to see that which comes into existence merely as the materials for the brief.’ The adversary’s brief will contain much relevant material; nevertheless, you cannot see it because that would be inconsistent with the adversary forensic process based on legal representation.

18      Although the position at common law is unclear, the weight of authority supports the view that confidentiality is required to attract privilege under the litigation privilege limb:  Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151; (2007) 242 ALR 181 at [20]‑[35], Edwards v Nine Network Australia Pty Ltd (No 4) [2022] FCA 1496 at [13], [26]‑[27]; Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232 at [46].

19      The immunity is only destroyed or waived if the party claiming it has acted inconsistently with its maintenance.  The inconsistent act needs to be that of the client, not some other person: Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [28]‑[29], [34].

The WASU and the WALGA’s evidence in support of privilege claims

20      The WASU relied on two affidavits made by Cory Fogliani on 25 October 2024 and 11 April 2025.  Mr Fogliani is the solicitor acting for the WASU in these proceedings.

21      In his October affidavit, Mr Fogliani annexes a list of documents identified by document type, date and time, sender and recipient(s).  All of the documents described are either emails or text messages.  The description of the sender and recipients reveals that all are between the WASU’s external lawyers in these proceedings, including its Senior Counsel, and one or a combination of:

(a)              the WALGA’s external lawyers;

(b)             the WALGA’s counsel;

(c)              the WALGA’s internal industrial advocates; and

(d)             witnesses whom the WALGA was proposing to call to give evidence at the hearing.

22      The dates of the emails and messages are between 9 February 2024 and 16 October 2024.  To put those dates into the context of these proceedings, the documents were all created in the period after the WALGA applied to intervene in the proceedings and before the WALGA closed its case at the hearing.  The documents were created both before and after the time when the WASU and the WALGA’s outlines of witness evidence were filed.

23      Mr Fogliani states in his October affidavit that he believes each of the documents are confidential communications with two dominant purposes:

(a)              for the WASU to prepare for this litigation; and

(b)             for the WASU to obtain information that may have resulted in it obtaining evidence to be used in this litigation.

24      The documents in the list are described in Mr Fogliani’s April affidavit.  Emails are described by reference to the email’s date, time, sender and recipient or recipients.  The document description provides an indication of the subject matter of the email, such as ‘regarding meeting with WALGA witness’.  It is apparent from the description when an email is in response to another email in the chain, and therefore, part of an email conversation about a particular topic.  Text messages are similarly described by date, time, sender, recipient and subject.  Each document is ascribed a purpose, either ‘obtaining potential evidence and preparing for hearing in the course of providing legal services to WASU’ or ‘discussion about potential evidence and preparing for hearing in the course of providing legal services to the WASU’.

25      The WALGA’s evidence in support of its privilege claims are contained in an affidavit of Jospeh Creese made on 24 October 2024.  Mr Creese is a lawyer with Mills Oakley, the WALGA’s solicitors.  His affidavit annexes a list of documents in the WALGA’s possession, custody and power as described in the Production Order, and claims all are subject to litigation privilege.  The documents listed are:

(a)              Mills Oakley documents comprising emails between solicitors at Mills Oakley and the WASU’s solicitors, as well as their respective counsel ‘[f]or the purpose of preparing evidence for the proceedings’ in the period 30 April 2024 to 30 September 2024.

(b)             the WALGA’s documents also being emails between the WALGA and the WASU’s solicitors from 2 May 2024 to 26 July 2024 ‘[f]or the purpose of preparing evidence for the proceedings’ as well as calendar invitations for meetings between solicitors, the WALGA and the WASU counsel and witnesses.

(c)              the WALGA’s counsel’s documents being emails between the WASU’s counsel and the WALGA’s counsel, sometimes also copied to the parties’ solicitors, date range 8 February 2024 to 16 October 2024.

26      Each of the documents is described as an email, a calendar invite or text message exchange with the date of the documents’ creation, the name of the sender and the name of the recipient.  The subject of the communication is also described.  The descriptions indicate that the communications are all concerning aspects of evidence of witnesses the WALGA proposed to call at the hearing: either the order of witnesses, the substance of their evidence, or arranging to contact or speak with them.

27      While the documents in the WASU’s list and the documents in the WALGA’s list are not described in identical terms, and the WALGA’s list comprises 94 documents compared with the WASU’s 93 documents, the documents listed are apparently the same.

28      The documents contained in the lists are all themselves communications.  There are no documents that are not communications passing between the parties’ legal representatives and third parties. There are no documents recording communications, such as memorandums or notes of discussions.

29      While the documents in the WASU and the WALGA’s  respective lists are the same, the WASU’s purpose in respect of a communication and the WALGA’s purpose in respect of the communication will not be identical. With some generalisation, the communications are mostly initiated by the WASU’s legal representatives, with subsequent communications being in response to or part of a chain of communications initiated by the WASU.

30      The parties did not address the privilege claims by reference to individual documents but directed their submissions to the documents in the list as a single group or category, on the basis that the documents were alike in all relevant respects.  That approach is appropriate.  We will follow it.

Are the WASU and the WALGA’s privilege claims sufficiently supported by evidence of the purpose of the communications?

31      The CFMEUW submits that the WASU and the WALGA’s evidence about their claims of privilege amounts to rolled up conclusions about the purpose of the communications amounting to bare claims without evidence setting out the facts which would allow the Commission to determine for itself the purpose of the communications.  The CFMEUW accepts that the communications were made or prepared when litigation had been commenced or contemplated and were for the purpose of these proceedings, but it does not concede that they were for the stated specific purposes of obtaining evidence to be used in the litigation or information which may result in the obtaining of such evidence.

32      The starting point for assessing the evidence about the purpose for which the listed documents were created is the fact that the production order was confined to documents passing between the  WASU and the WALGA that relate to the evidence that has been given or is to be given in these proceedings.  In this context, merely by making the lists, the WASU and the WALGA have established something of the purpose for which the documents were created.  That is, the documents were created in connection with evidence in these proceedings.  We are not dealing with lists of documents at large.

33    Evident from the description of the documents themselves, they are communications between the WASU’s legal representatives and a third party.  The third party is, in every instance, either another party to the proceedings or a legal representative of another party to the proceedings.  In some cases, a witness is also included in the communication.  This further narrows the need for evidence as to the documents’ purpose.  Self‑evidently, the documents are for the purpose of communicating in relation to evidence given or to be given in the proceedings.

34      The description of the documents themselves do not reveal the documents’ contents (except perhaps where described as ‘calendar invites’) but are sufficient to understand that they all relate in some way, more or less directly, to evidence in these proceedings.

35      In short, there is virtually no room for doubt that the documents described were created for the WASU’s stated purpose of preparing evidence or obtaining potential evidence for the proceedings, and preparing for the hearing in the course of providing legal services to the WASU.

36      It is difficult to see what more the WASU and the WALGA could do to establish the purpose for which the documents were created, without detracting from the protection from production which the privilege would afford.

37      The evidence is sufficient to prove that the documents were brought into existence for the dominant purpose of preparing for and conducting these proceedings.  The documents are sufficiently described to establish objectively that they relate to these proceedings.

38      The CFMEU says that the evidence on its face is wrong, and doubt should arise about the stated purpose, because communications that are described as being for the purpose of preparation of evidence occurred after the time when the relevant witnesses’ outlines were filed.

39      Litigation privilege is not narrowly confined to documents created for the purpose of preparing witness outlines.  Lockhart J’s formulation in Sterling was, relevantly, communications made or prepared when litigation is commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence.  In ACCC v NSW Ports at [44], Wigney J described the privilege as attaching to, amongst others, communications made for the dominant purpose of ‘conduct or aid in the conduct of litigation.’

40      Until 3 July 2024, no direction had been given for witness outlines to stand as the evidence in chief of witnesses.  Even once a direction had been made allowing witness outlines to be tendered as evidence in chief, on 11 July 2024, that direction was subject to any other party objecting to that course and to the Commission’s further directions.  Accordingly, both before 3 July 2024 and after, the parties’ lawyers could reasonably anticipate that any witness evidence in chief might be adduced wholly orally, or by a combination of witness outline and supplementary oral evidence.  And there is nothing remarkable about taking a statement from a witness or potential witness about matters that might be raised in cross‑examination.

41      Finally, the CFMEUW says that if the purpose for which the documents were created was for the preparation of the WALGA’s evidence, then it is only the party who will use that evidence that can claim the privilege.  In other words, only the WALGA is entitled to claim privilege in relation to documents created for the purpose of its evidence, and the WASU cannot claim privilege in respect of documents created relating to the WALGA’s evidence.

42      This is a flawed application of the principles.  First, there is no property in a witness.  One cannot proceed on the basis that if one party calls a witness, it is only that party who may use the witness’s evidence.  Second, if a communication between two parties with a common interest is privileged in the hands of one, it is also privileged in the hands of the other party.  It is not necessary to find that the communications were in aid of the WALGA’s conduct of litigation.  If that was a purpose, it was likely incidental rather than a dominant purpose.  But it is clear that the communications were in aid of the WASU’s conduct of the litigation and if there was a common interest, that is enough.  Whether there is a common interest is discussed below under the heading ‘Were the communications confidential?’.

Can communications between parties to the same litigation be privileged?

43      The first ground on which the CFMEUW challenges the privilege claims is simply on the basis that communications between parties to the same litigation fall outside the doctrine of legal professional privilege.

44      It is common ground that, as a general rule, communications between opposing parties to litigation are not ordinarily confidential so as to attract the privilege.  But the CFMEU submits that there is a broader intractable principle as expressed by the New South Wales Court of Appeal in Sugden v Sugden [2007] NSWCA 312; (2007) 70 NSWLR 301 at 314, and endorsed by the Western Australian Court of Appeal in Rayney v AW [2009] WASCA 203 as follows:

[A]t common law communications between parties to litigation, or their representatives (including legal representatives) are not to be treated, without more, as confidential for the purposes of the common law relating to legal professional privilege.

45      Counsel for the CFMEUW submitted that Telebooth Pty Ltd v Telstra Corporation Ltd [1994] 1 VR 337;(1993) 67 LIJ 1087b and Sugden express the relevant ‘specific rule’ directed to the particular case of communication between parties to litigation, without being subject to anterior or broader principles.

46      The CFMEUW did not identify any case in which this purported broader rule or intractable principle has been applied as a specific rule or principle.

47      The Court of Appeal’s approval of the approach in Sugden is found in McLure JA’s (as her Honour then was) reasons in Rayney v AW at [42]‑[43]:

Ordinarily, the person claiming and carrying the onus of establishing legal professional privilege is required to (a) list each communication the subject of the claim for privilege; (b) state the form in which each communication is contained, stored or recorded, whether it is an original or a copy and the date when each was made; (c) identify the persons between whom the communication or communications were made; and (d) provide evidence as to the basis of the claim for legal professional privilege: National Crime Authority v S (1991) 29 FCR 203, 212; Kennedy v Wallace (2004) 142 FCR 185 [13].

That procedure reflects the general rule which is that the date or dates of a communication and the identities of the persons involved in the communication are not ordinarily protected by legal professional privilege: see Z v New South Wales Crime Commission (2007) 231 CLR 75 [4], [36]; Commissioner of Taxation v Coombes (1999) 92 FCR 240 [31]; Barnes v Commissioner of Taxation (Cth) (2007) 242 ALR 601. Moreover, communications with opponents are not ordinarily the subject of legal professional privilege: Telebooth Pty Ltd v Telstra Corporation Ltd [1994] 1 VR 337, 339; Sugden v Sugden (2007) 70 NSWLR 301 [63]‑[64]. The statement of the general rule recognises that such information may be privileged in exceptional circumstances.

(emphasis added)

48      Her Honour made the above emphasised remarks as a ‘general observation’: [41].  Any principles expressed were not applied in determining the outcome of the grounds of appeal in Rayney v AW.

49      In our analysis, we have not been able to identify a principle that communications between parties to litigation cannot be privileged.  Rather, Telebooth and Sugden are examples of the need for a communication to be confidential to attract legal professional privilege, justifying the general rule that communications between opposing parties will not ordinarily be confidential.

50      Telebooth concerned a claim for legal professional privilege made by the plaintiff in a list of documents concerning a tape recording of a conversation between an officer of the plaintiff and an officer of the defendant, and a transcript of that tape recording.  The plaintiff accepted that the conversation between the officers was not itself confidential, but argued that the making of the recording and transcript was for the purpose of submitting them to the plaintiff’s lawyers for advice.  At 341, Hedigan J characterised the case before his Honour as concerning ‘privilege in respect of non‑confidential communications between adverse parties that are passed on to the solicitor of one of them’.

51      His Honour undertook a comprehensive review of the authorities dealing with privilege in the context of inter partes communications, observing that there was strong authority that the principle underpinning legal professional privilege is confidentiality and that privilege could not exist in non‑confidential communications: Telebooth at 343.  His Honour stated that the court must be careful to scrutinise the factual matrix in order to determine whether confidentiality is truly involved in the circumstances: Telebooth at 343‑344.

52      His Honour characterised the tape recording as one and the same as the non‑confidential conversation itself. His Honour concluded at 347:

In the present case, the tape was used to record the conversation and that is what it did. The conversation that took place is admittedly non‑confidential. In the circumstance here prevailing, it seems to me that it would be anomalous, contrary to the principle which drives legal professional privilege and an encouragement to inappropriate use of the client‑solicitor relationship, to conclude that the tape‑recording of the non‑confidential conversation is privileged.

53      And at 348:

But the tape is not a note of the conversation, an impression of it or a description of it, It contains the actual conversation in electronic form. It evokes the voices of each party's agent, instantaneously encapsulating the non‑confidential communications. It is the conversation. Kinchin was as much the author of it as Harris. The policy basis of legal professional privilege ‑ confidentiality in the public interest ‑ is wholly lacking when what is solely sought to be protected is an actual reproduction of the voices of the parties speaking in a non‑confidential mutual communication. The tape itself is not a communication to anybody. It is simply a record. It did not come into existence as a communication from the client to the solicitor.

54      His Honour goes on to say that if the solicitor had been present:

[I]t would not be privileged. If Kinchin's statements had been made directly to Harris' solicitor, the conversation would not be privileged. The law should be slow to extend the boundaries of legal professional privilege so as to protect a known non‑confidential communication simply because a record of it is made and deposited with the lawyer of one of the parties. The privilege, ancient and important as it is, will only be depreciated by seeking to attach it to circumstances such as this. The analysis of the privilege by the High Court of Australia in Grant v. Downs and National Employers' Mutual General Insurance Association Ltd. v. Waind (1979) 141 CLR 648, and the actual decisions in each case, justify a conservative approach to circumstances such as are raised by the present case. None of the legitimate interests protected by the principle of the privilege will be served by upholding the plaintiff's claim to privilege in this case.

55      The CFMEUW submitted that Hedigan J identified as a relevant principle that ‘no communication made to a solicitor by or on behalf of the opposite party can be confidential’ (Outline of Submissions for the CFMEUW on Privilege at [19]).  This is an apparent reference to his Honour’s consideration at 343 of the case Kennedy v Lyell (No 2) [1884] 4 WLUK 26; (1883) 23 Ch D 387 at 405 in which Cotton LJ classified cases in which privilege did not exist as including ‘the first class is referable to the principle that no communication made to a solicitor by or on behalf of the opposite party can be confidential’.  It is unclear whether his Honour agreed with this statement as a statement of principle.  His Honour paraphrased: ‘That is, there is no confidentiality in respect of a direct communication by a party to the opposite party’s solicitor’ and goes on to conclude that confidentiality is an essential element of a claim for legal professional privilege (Telebooth at 343).

56      His Honour at Telebooth 342 cites a statement of Lord Ellenborough in Spenceley v Schulenbugh (1806) 103 ER 138:

That the privilege was restricted to communications, whether oral or written, from the client to his attorney; and could not extend to adverse proceedings communicated to him as attorney in the cause from the opposite party, in the disclosure of which there could be no breach of confidence. Here the attorney did not even acquire his knowledge of the contempt of the paper from his client, even if that could have made a difference, which might be questioned, but he received the paper himself.

(original emphasis)

57      Notably, the document to which this statement was directed was a notice to produce served on the defendant’s attorney by the opposite party. Lord Ellenborough’s comments were therefore confined to consideration of 'adverse proceedings communicated’ and did not concern any communication made to a solicitor by or on behalf of the opposite party.

58      Sugden concerned the application of the Evidence Act 1995’s (NSW) privilege provisions to documents created by a solicitor for one party to proceedings, where those documents recorded communications between the solicitor and the other party to the proceedings.

59      At [32], McDougall J, with whom Mason P and Ipp JA agreed, identified the first issue for determination as being:

Whether the file notes and the draft statement prepared by Mr Mileto and annotated by Mr Campbell, being records of communications between the present defendant and the legal advisers to the present plaintiff, were confidential.

60      The sense in which confidentiality was in issue was for the purpose of s 117 of the Evidence Act’s definition of ‘confidential document’.

61      Under the heading ‘First issue: confidentiality’ his Honour noted that many of the cases on the topic of legal professional privilege have limited relevance as concerning the position at common law, and yielding no consistent rationale or principle.  His Honour said ‘[c]ases dealing with the position at common law may be relevant, to the extent that they disclose a ‘circumstance’ in which at common law confidentiality would (or would not) arise’: Sugden at [44]‑[45], [64].  However, his Honour was ultimately to apply the statutory test.

62      In reviewing the authorities, McDougall J was largely grappling with the failure of many of the cases, with the exception of Aydin v Australian Iron and Steel Pty Ltd [1984] 3 NSWLR 684, to make a factual distinction between a document prepared by one party’s representative that is given to the other party, and a document that is prepared as a record of a communication, but not shared.  In the former case, the document itself is a communication, but in the latter it is not: Sugden at [52].

63      In this context, his Honour concluded in Sugden at [64]:

I do not propose to discuss Feuerheerd. That is because I do not regard the answer to the first issue in this case as turning on the reasoning in the cases to which I have referred. Those cases are important insofar as they illustrate the state of the relevant principles under the common law. They are thus the background against which the legislative intention embodied in s 117 and s 119 must be analysed and understood. In that sense, they are indicative of “circumstances” in which, under the common law test, privilege might (or might not) attach. To that extent, I think, the better view is that at common law communications between parties to litigation, or their representatives (including legal representatives) are not to be treated, without more, as confidential for the purposes of the common law relating to legal professional privilege. (Of course, I except from this communications of a “without prejudice” character, undertaken in an attempt to resolve the dispute. The confidentiality of those communications rests on a different, and for present purposes irrelevant, basis). But it does not follow that the solicitor’s document recording a communication with an opposing party or the opposing party’s legal representative is not privileged. Whether it is or not depends on the question of whether the document is, even though the communication that it records was not, confidential within the statutory definition.

(emphasis added)

64      Couched in this way, and following from his Honour’s earlier observation that the cases do not yield a consistent principle, we do not understand his Honour to be deciphering from the cases a legal principle or rule concerning communications between parties to litigation. Rather, McDougall J is emphasising the distinction between documents recording communications with an opposing party, from the communications themselves. By referring to the cases as ‘indicative of circumstances’ his Honour is disavowing a conclusion that the cases stand for something that must invariably be followed.  McDougall J refers to both ‘parties to litigation’ and ‘opposing party’ apparently interchangeably.

65      Following from the above extracted paragraph of McDougall J’s reasons, his Honour went on to consider Goldberg J’s reasoning in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1998] FCA 237; (1998) 81 FCR 526.  His Honour concludes at [66]‑[67]:

I agree with his Honour’s reasoning, and accept that the purpose for which a document is created may cast light on the issue of its confidentiality. That is because the question is whether the person who prepared the document, or the person for whom it was prepared, was under an express or implied obligation not to disclose its contents. The reference to “implied obligation” directs attention to all relevant circumstances, including the context in which and the purposes for which the document was prepared. It does not fall to be answered solely by reference to the character of the contents.

The decision of Goldberg J serves to focus attention on the critical question: are the documents in respect of which privilege is asserted confidential communications or confidential documents?

66      McDougall J ultimately found that a lawyer’s file notes of conversations with another party to litigation, and an annotated draft statement from the other party, to be confidential for the purpose of the Evidence Act’s definition, and therefore attracting the statutory privilege.

67      Accordingly, when McLure JA  in  Rayney v AW cited Telebooth and Sudgen with approval, in support of the ‘general observation’ that  communications with opponents are not ordinarily the subject of legal professional privilege, her Honour should be taken to be making an observation about the ‘ordinary’ outcome of the analysis undertaken in previous decided cases, which analysis turns on an assessment of whether the documents in question are confidential, and endorsing McDougall J’s focus on the factual question of whether the purpose for which the documents were created or the character of the documents’ contents or other circumstances carries an express or implied obligation of confidentiality.

68      Further, her Honour was, with respect, right to confine the observation to the position of ‘opponents’ in litigation, rather than ‘parties’ at large. This is consistent with the reasoning in Sugden and Telebooth.

69      That McLure JA was not purporting to express a ‘general rule’ in relation to communications between parties to litigation is confirmed by a later case in which her Honour presided: AW v Rayney [2010] WASCA 161.  At [21] her Honour again cites Sugden and Telebooth, but by reference to the refined formulation ‘an adversary or a person with an adverse interest’:

Communications with an adversary or a person with an adverse interest are not ordinarily confidential for the purposes of the privilege: Sugden v Sugden (2007) 70 NSWLR 301 [63] ‑ [64]; Telebooth Pty Ltd v Telstra Corporation Ltd [1994] 1 VR 337, 339.

70      Her Honour alluded to this principle in her analysis of Mr Rayney’s appeal from a decision of a magistrate dismissing his claim of privilege over copies of audio recordings of conversations between Mr Rayney and his wife.  The magistrate had relevantly found, amongst other reasons for not upholding the privilege claim, that those recordings were not confidential communications, and therefore did not attract legal professional privilege citing Sugden.

71      President McLure upheld Mr Rayney’s appeal against this finding, observing at [81]:

The magistrate found that the Category 1 files were not confidential communications and thus were not privileged because the conversations which were recorded were not confidential.  There is no doubt that the communications between Mr Rayney and his wife, who were potential opponents in the anticipated litigation, were not relevantly confidential for the purposes of legal professional privilege.  However, the 'communication' on which Mr Rayney relied to claim privilege was the claimed intention to communicate the Category 1 files to his lawyer for legal advice and for use in litigation.  The fact that a person is seeking legal advice on non‑privileged information or is to provide that information to his lawyer for use in litigation is itself confidential.  I would uphold ground 2 (c).

72      Justice  Newnes joined in McLure P’s reasoning on this ground.

73      As we understand the CFMEUW’s submissions, it says that the WASU and the WALGA must demonstrate exceptional circumstances to be excepted from what it says is the rule, namely that communications between parties to proceedings are not privileged. It is not clear why the CFMEUW says ‘exceptional circumstances’ must be shown.  In Rayney v AW extracted above, McLure P refers to ‘exceptional circumstances’ as a carve out from the general rule that the date or dates of a communication and the identities of the persons involved in the communication are not ordinarily protected by legal professional privilege.  That is not the general rule the CFMEUW relies on in this case.

74      Justice McDougall’s formulation in Sugden was that communications between parties to litigation are not to be treated, without more, as confidential.  But, as indicated above, his Honour emphasised that the critical question of whether documents are confidential must be answered by giving attention to the circumstances in which the documents were created and the contents of the communications.  ‘Without more’ therefore equates to ‘without circumstances which give rise to an express or implied obligation of confidentiality.’ This is not the same as requiring demonstration of exceptional circumstances.

75      The CFMEUW has not attempted to establish that the WASU and the WALGA are adversaries or opposing parties in these proceedings.  Accordingly, it is not enough for the CFMEUW to rely on Sugden or the statements in the cases that deal with communications between opponents to defeat the WASU and the WALGA’s privilege claims.  If the communications were confidential, that confidentiality is not lost merely by virtue of the fact that the WALGA is intervening in the proceedings brought by the WASU.

Were the communications confidential?

76      There can be no doubt that if the WASU’s legal representatives communicated with a third party who was not a party to these proceedings, for the purpose of obtaining potential evidence for use in the proceedings or to prepare for the proceedings, those communications in the WASU’s hands would be privileged.

77      The critical question is whether the communications the subject of the present application are privileged in the WALGA’s hands?  The answer to that question turns on whether the WASU and the WALGA had a sufficient mutual interest in the subject of the communications for there to be mutual confidentiality.

78      In answering this question, as McDougall J admonished in Sugden, attention must be given to the circumstances in which the communications occurred and the content of the communications to the extent known.

79      In asserting that the communications were confidential, and therefore, privileged, the WASU’s counsel described the circumstances of their creation as involving a ‘continuing circle of confidentiality’ (TS 24).  This phrase recalls the Supreme Court of South Australia Full Court discussion of waiver in Players Pty Ltd (In Liquidation) (Receivers Appointed) & Ors v Clone Pty Ltd [2013] SASCFC 25; (2013) 115 SASR 547, [79], [82].

80      The Full Court there observed at [82] that the privilege is lost where a litigant intentionally discloses the protected material to an opponent or another person outside the confidential circle, invoking the principles about waiver of privilege laid down in Mann v Carnell.

81      Waiver is not a real issue in this matter. Because the documents in the WASU and the WALGA’s lists are all themselves communications within the camps of the WASU and the WALGA, this is not a case where privilege might apply to the documents but then be lost by a disclosure that is inconsistent with the maintenance of the privilege.  Waiver involves conduct that is inconsistent with the maintenance of confidentiality which previously existed.  This inherently involves two steps: The creation of a document in circumstances of confidentiality and subsequent conduct inconsistent with the maintenance of confidentiality. Where a document is itself the communication over which privilege is asserted, only one step is involved ‑ the creation of the document.  The question here is whether that step involved confidentiality, not whether there was subsequent conduct inconsistent with confidentiality.

82      Nevertheless, counsel’s description of a ‘confidential circle’ is a convenient overarching description of the WASU’s characterisation of the circumstances in which the relevant communications occurred.  The WASU submits that, in these proceedings, the WASU and WALGA’s interests ‘overlap but diverge’ and so they have a sufficient common interest in the preparation of evidence for these proceedings (the WASU’s Outline of Submissions in Reply to the CFMEUW’s Submissions on Privilege [17]).

83      A parallel can be drawn with common interest privilege. The concept of common interest privilege is described in Cross on Evidence Australian Edition [25265] (footnotes omitted):

The protection by common interest privilege of documents in the hands of someone other than the client must pre‑suppose that that third party has a relationship with the client and the transaction in question which, in relation to the advice or other communications, brings that third party within that ambit of confidence which would prevail between the legal adviser and his immediate client. Where in circumstances of a mutual interest in a particular transaction or transactions the recipient of legal advice relating to such transactions passes documents or information containing that advice to someone who shares that interest, the essential question in each case is whether the nature of their mutual interest in the context of their relationship is such that the party to whom the documents are passed receives them subject to a duty of confidence which the law will protect in the interests of justice.

84      In Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 (Network Ten Ltd), Giles J described common interest privilege at [279]:

If two parties with a common interest exchange information and advice relating to that interest, the documents or copy documents containing that information will be privileged from production in the hands of each; thus, if one of the parties obtains a letter of advice attracting legal professional privilege and provides it to the other, the other can also claim legal professional privilege.

85      In Marshall v Prescott [2013] NSWCA 152, Barratt JA, with whom McColl JA and Ward JA agreed, described the concept of common interest privilege as an exception to the waiver principles described in Mann v Carnell at [57]:

If a document in which legal professional privilege subsists is given to someone else so that the content ceases to be confidential, the privilege is usually lost. This is because the act of giving is, in the particular circumstances, inconsistent with any continuing intention to maintain confidentiality: Mann v Carnell (above) at [13]. An exception operates, however, where the person entitled to the privilege and the person to whom the content of the document is made known have such a commonality of interest in relation to the subject matter of the privilege that sharing of the content is consistent, rather than inconsistent, with an ongoing intention to preserve confidentiality and privilege. Questions of common interest privilege usually arise (as here) when litigation is on foot or foreshadowed. The present case does not raise the question whether the concept extends beyond the litigation context.

86      Where the circumstances involve the disclosure of a document that is otherwise privileged, it is apt to describe common interest privilege as an exception to, or defence to an assertion that privilege has been waived.  That is how the WASU’s counsel characterised common interest privilege.

87      In the context of documents that are themselves communications, as is the case here, common interest privilege might more appropriately be characterised as an exception to the general rule that privilege does not attach to communications with third parties and as an aspect of the requirement that communications with third parties must be intrinsically privileged to deserve protection: Woodings as Liquidator of The Bell Group Ltd and The Bell Group Finance Pty Ltd v WA Glendinning & Associates Pty Ltd [2019] WASC 54 at [158], Crawford v Quail [2021] WASC 290 at [36].  So, as the CFMEUW’s counsel submitted, the correct launching point, practically, is that the communications would not be privileged unless a common interest is identified.

88      It is therefore necessary to identify what the common interest is here, bearing in mind that the relevant time for assessing whether there was a common interest is the time when the correspondence was sent: Crawford v Quail at [60].

89      Counsel for the CFMEUW suggested that the lack of a common interest was because the WASU and the WALGA were not in a recognised or established category of relationship which would give rise to common interest privilege, such as trustee and beneficiary, an insurer and insured, or a company and shareholder.

90      We are not persuaded that this is the correct approach to ascertaining whether there is a common interest.  It might be an appropriate approach to determining the issue of jointly held legal professional privilege, which is a different concept to common interest privilege: Desiatnik R J, Legal Professional Privilege in Australia (4th Ed 2025) 256, 261.  The authorities are clear that the categories of relationship in which a sufficient commonality of interest will arise are not closed: UIL (Singapore) Pte Ltd v Wollongong Coal Ltd) [2023] FCA 1578 at [124].  In any event, communications about evidence in proceedings between a number of respondents has been held to attract common interest privilege by virtue of their common involvement, in the absence of crossclaims between them:  IO Group Inc t/as Titan Media & Ors  v Prestige Club Australia Pty Ltd & Ors (No 3) [2008] FCA 1223.

91      It is also now well established that a ‘mere’ common interest in the outcome of litigation will be sufficient to enable any party with that interest to rely on common interest privilege: Cygnett Pty Ltd (ACN 106 996 114) v Souris [2020] FCA 1754 at [19] citing Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] NSWSC 259; (1996) 39 NSWLR 601; Media Ocean Ltd v Optus Mobile Pty Ltd (No 10) [2010] FCA 1348; Hamilton v New South Wales [2016] NSWSC 1213.  However, parties to litigation interested in a particular question will not have a common interest if their individual interests in the question are selfish and potentially adverse to each other: Cygnett at [22].

92      The WASU’s applications are for orders that it has the right, to the exclusion of the CFMEUW, to represent the industrial interests of all outside employees employed in named local government enterprises, who are eligible for membership of the WASU, and orders that the CFMEUW does not have the right to represent those employees.

93      The WALGA’s position as intervenor in these proceedings is that it supports the orders sought by the WASU. This position was formalised in the WALGA’s response filed 16 February 2024.

94      This does not mean that the WASU and the WALGA’s interests in these proceedings are totally common.  No one suggests their interests are totally common.  It is difficult to envisage a situation where different parties have totally aligned interests.  That must particularly be so in proceedings under s 72A of the Industrial Relations Act 1979 (WA) where the Commission has wide discretion to determine whether an organisation should have the right to exclusively represent the industrial interests of employees employed in an enterprise or workplace, having regard to a number of relevant factors, including the interests of employees and the interests of employers affected, see: Re an application by the Metals and Engineering Workers Union – Western Australian Branch & Ors (1994) 74 WAIG 1507 Re applications by Hospital Salaried Officers Association of Western Australia (Union of Workers) & Anor  (1996) 76 WAIG 1673; Re applications by the Transport Workers Union of Australia, Industrial Union of Workers, Western Australian Branch & Anor (1996) 76 WAIG 4877; Re applications by the Australian Workers Union, West Australian Branch, Industrial Union of Workers & Anor (1999) 79 WAIG 2998;  Re an application by Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch & Ors (2000) 80 WAIG 4615.

95      The CFMEUW did not contend that the WASU and the WALGA did not have a common interest in this broad sense.  For it to have done so, would have been contrary to submissions it has previously made to the effect that the WASU and both intervenors in these proceedings are ‘parties in the same interest’.

96      However, the CFMEUW did argue that the proceedings have, at the WASU and the WALGA’s behest, been conducted on the basis that the WASU and the WALGA’s interests were not aligned, except insofar as they both broadly pursued the same outcome.  In particular, that their interests were not aligned in relation to the evidence in the proceedings, such as to warrant limitations on the cross‑examination of one another’s witnesses, as sought by the CFMEUW during a directions hearing on 5 July 2024.  The CFMEUW argued that it was because of the WASU’s assurance to the Commission that the WASU and the WALGA’s interests did not relevantly align, that the Commission declined to limit leading questions being put in cross‑examination of their respective witnesses.  The CFMEUW urged that it would be an abuse of process to allow the WASU and the WALGA to deny a commonality of interest on route to a direction in their favour, and to now press a contradicting position.

97      The difficulty with this submission is that it misrepresents the course of events. The issues that arose on 5 July 2024 are discussed in Western Australian Municipal, Administrative, Clerical and Services Union of Employees & Ors [2025] WAIRC 00188; (2025) 105 WAIG 592 (March reasons) at [26]‑[30]. The CFMEUW raised two issues concerning cross‑examination during the 5 July 2024 directions hearing.  The first was whether more than one counsel should be permitted to cross‑examine witnesses called by the CFMEUW in circumstances where the other parties are ‘in the same interest’.  The second concerned whether counsel for the WASU and the intervenors should be permitted to put leading questions to each other’s witnesses in cross‑examination, lest the parties confer in relation to what was to be led out of a particular witness, and the purpose of asking non‑leading questions be undermined.

98      It was in the context of the exchange concerning the first issue, the cross‑examination of the CFMEUW’s witnesses, that Chief Commissioner Kenner observed that the fact the WASU’s application was supported by the intervenors did not mean ‘there’s total common interest. It’s far more nuanced than that’ (TS 5 July 2024 at 5). The WASU’s counsel only addressed the assertion that the WASU and the intervenors were ‘in the same interest’ by saying:

I was going to give examples of where the WASU’s interests in the proceedings differed. In view of what’s been said I won't take up time with that.

(TS 5 July 2024 at 14)

99      Then, specifically in relation to the issue of whether the WASU should be permitted to ask leading questions of the intervenor’s witnesses, the WASU’s counsel said:

With the question of the cross‑examination of other witnesses arguably in the same interest the same matters apply that I'd discussed previously, which is that there’s nothing there that cannot be dealt with by appropriate directions at the time, if necessary, including directions to not continue with leading questions.

There are a number of areas in which WASU seeks to deal with interest, matters specific to it, which are not necessarily raised in the WALGA or LGRCEU outlines. I can go to those, if required. So the interests are not entirely the same as between the parties and the matter can be addressed, in our submission, in the same way, if necessary, at the hearing.

(TS 5 July 2024 at 17)

100   The WALGA’s counsel supported the position put forward by the WASU’s counsel.

101   Ultimately, the Commission made no finding that the WASU and the WALGA’s interests were adverse, or not common. The Commission maintained the directions it had previously made on the basis that it:

[W]ill be vigilant as to any unreasonable or repetitive cross‑examination. We also add we will deal with any common interest objections as and when they arise during the course of the hearing.

(TS 5 July 2024 at 20)

102   Further, in the March reasons at [30], the Commission observed:

It was quite evident from the material filed, by the time of the directions hearing held on 5 July 2024, that although there may be some overlap, that there was a divergence between the cases of the WASU, the WALGA and especially the LGRCEU. GPI Leisure is not authority for the proposition that there is a fixed rule preventing parties in the same interest from cross‑examining one another’s witnesses. The ultimate right in a party is to have a fair hearing. In a complex case such as the present matter, with a multiplicity of issues arising, and where there is a divergence of interests, the matters can and should be appropriately managed by minimising duplication in cross‑examination. The object is to ensure that there is no oppression to a witness. It is on that basis that the Commission indicated that it would proceed as initially indicated to the parties.

103   The Commission accepted that there were both common interests (overlap) and divergent interests involved.

104   It is simply not the case that the WASU or the WALGA answered the CFMEUW’s concerns about cross‑examination of each other’s witnesses by contending that they did not have an identity of interest, let alone that their interests were adverse.  The most that can be said is that the WASU’s counsel suggested that there were ways in which their respective interests diverged.  Nor is it the case that the Commission in Court Session determined that the WASU and the WALGA should be permitted to ask leading questions in cross‑examination of each other’s witnesses.  Nor was it a necessary condition of what the Commission in Court Session did decide, that it was accepted that the WASU and WALGA had no common interest in relation to the witnesses.

105   Accepting that the WASU and the WALGA’s interests in the proceedings differed, does not deny the possibility of a common interest in the relevant sense, that is, a common interest to which the purported privileged communications relate: UIL Singapore at [117], [122].

106   Finally, the CFMEUW argued that there was no evidentiary basis to make a finding that there is a common interest. The WASU and the WALGA however point to the submissions made by the parties to identify the common interest.  For example, the WASU must address the criteria relevant to the exercise of the Commission in Court Session’s discretion, including the attitude of employees and the interests of employers in the enterprises affected.  Therefore, evidence led by the WALGA on these issues is relevant to the WASU’s case, and might be relied upon by the WASU.

107   Further, the WASU and the WALGA had a common interest in the expeditious and efficient running of the case.

108   These matters are sufficiently evident from the conduct of the proceedings, that evidence is not required to show a common interest.  Common interests are manifest.  Need it be said, the common interests are an interest putting before the Commission evidence from local government employers relevant to the exercise of the Commission’s discretion and which might support the making of the orders the WASU seeks, and doing so in an efficient and effective way.  We are satisfied that there is sufficient common interest.

109   The next issue is whether the communications relate to the identified common interest.  In this regard, the list annexed to Mr Fogliani’s affidavit described the communications as having or relating to the following content:

(a)       Employer evidence

(b)      WALGA witness evidence

(c)       Appropriate WALGA contact

(d)      Meeting with the WALGA witness/witnesses

(e)       Missing attachments to the WASU filed outlines of evidence

(f)        Index of JDFs filed in the proceedings

(g)      Evidence of identified and named WALGA witnesses

(h)      Meeting with a WALGA employee

(i)        Drafting of further outlines of evidence of the WALGA witness evidence

(j)        RCD tagging requirements under WHS legislation and Ms Cole’s evidence

(k)      The CFMEU right of entry at Serpentine Jarrahdale and signatures

(l)        Further witness outline for Ms Cole

(m)    Local government capital works program

(n)      Evidence about events at the City of Wanneroo

110   The list annexed to Mr Creese’s described the communications similarly, though not identically, as having or relating to the following content:

(a)       WALGA witness evidence

(b)      Appropriate WALGA contact

(c)       Witness evidence of named individual witnesses

(d)      Questions of WALGA witnesses

(e)       Meetings with WALGA witnesses

(f)        Position descriptions and attachments

(g)      Calendar invites

(h)      Evidence from the Shire of Serpentine Jarrahdale and Wanneroo

(i)        Drafting of further outlines of WALGA witness evidence

(j)        RCD tagging requirements under WHS legislation

(k)      The CFMEU ROE and signatures

(l)        Local government capital works programs

(m)    Cross‑examination of the LGRCEU witness

(n)      Lines of argument

(o)      Section 72A case

(p)      Order of witnesses

(q)      Opening submissions and procedural matters including how witnesses are dealt with

(r)        Questions to put to WALGA’s witnesses in cross‑examination

(s)       Cross‑examination of WALGA witnesses

(t)        Clarifications in relation to the evidence of WALGA witnesses

(u)      Documents in the CFMEU bundle

(v)      City of Albany employees

(w)    Events at the City of Wanneroo

(x)      Percentage of women in outside workforce

(y)      Ratio of inside workers to outside workers

111   We have already observed that all of the communications occurred after these proceedings were commenced, and after the WALGA became an intervenor in the proceedings.  They relate to the evidence in these proceedings.

112   As indicated above, with a few exceptions, the communications were mainly initiated by the WASU’s legal representatives, and therefore appear to be for the purpose of the WASU obtaining evidence to put before the Commission, or obtaining information which may result in the obtaining of such evidence, or generally related to the conduct of the proceedings. Those communications were for the WASU’s dominant purpose of aiding in its conduct of litigation in these proceedings. Others were for the WASU and the WALGA’s purpose of aiding in their respective conduct of the litigation.

113   Accordingly, the communications exchanged related to the WASU and the WALGA’s common interest identified in [106]‑[108] above.

114   The nature of the communications, being legal work relating to witnesses proposed to be called to give evidence, and the evidence itself, was self‑evidently of a confidential nature.  It is implicit in the legal representatives’ dealings that their communications would be treated as confidential for the reasons articulated in UIL Singapore at [79] and Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd at [35]. The position is akin to that in Bulk Materials (Coal Handling) Services Pty Ltd v Coal & Allied Operations Pty Ltd (1988) 13 NSWLR 689 at 695 where Giles J of the Supreme Court of New South Wales found communications were under a requirement of confidence in the absence of express evidence that this was so, because it was implicit in the nature of the documents and the purpose for which they were provided that they were to be kept confidential.

115   Therefore, the communications were and remained confidential. The WASU and the WALGA have established the elements required for common interest privilege to apply.  In both cases, the documents are privileged from production in the hands of each: Network Ten Ltd.

Do discretionary considerations warrant an order for production?

116   In reply oral submissions, the CFMEUW’s counsel urged the Commission to order the documents be produced on the ground that production was required in accordance with equity, good conscience and the substantial merits of the case.  The submission was that the Commission is not bound by the rules of evidence, and therefore may disregard the protection afforded by the privilege recognised at common law.  Further, that the Commission ought to disregard the protection because of the WASU’s conduct, joined in by the WALGA, of conferring in relation to the WALGA’s evidence having previously assured the Commission that conferral would not occur.

117   It is tempting not to deal with this submission at all, given that it was improperly raised in reply with no opportunity for the WASU and the WALGA to address it.

118   But in any event, it is without merit. Buss J considered the meaning of the requirement in s 26(1)(a) of the Act for the Commission to act in accordance with equity and good conscience in Fagan v Minister for Corrective Services [2025] WAIRC 00014; (2025) 105 WAIG at [68]‑[89].  The requirement does not mean the Commission can depart from its duty to apply the general law, including relevant common law principles.  The Commission is required to act judicially according to law, and to apply the common law in relation to legal professional privilege (See also Registrar v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch [2007] WAIRC 00502; (2007) 87 WAIG 1199 at [48]; Health Services Union of Western Australia (Union of Workers) v Director General of Health in Right of the Minister for Health as the Metropolitan Health Service, the South West Health Board and the WA Country Health Service [2008] WAIRC 00215; (2008) 88 WAIG 543 [161]‑[165]).

119   Additionally, the relevant assurance was raised by the CFMEUW in support of its application for further orders for production and was considered by the Commission in the March reasons at [6]:

The grounds advanced by the CFMEUW in support of the further application for production are set out at Annexure B ‑ Grounds of the application which are in the following terms (footnotes omitted):

1. On 3 July 2024 the respondent (CFMEUW) sought to be heard in relation to the procedure to be adopted at the hearing of the application. The CFMEUW inter alia sought orders that the applicant (WASU) and the two intervenors (WALGA and LGRCEU) (together, the Proponents) not be permitted to ask leading questions of one another’s witnesses.

2. At a directions hearing convened on 5 July 2024 the CFMEUW submitted that permitting the Proponents to ask leading questions of one another’s witnesses would, in effect, risk contravention of the rationale for the prohibition of leading questions in evidence in chief; that is to say, it would undermine the integrity of the evidence led.

3. In successfully resisting the directions sought by the CFMEUW, WASU:

(a) submitted that it suspected that the concerns identified by the CFMEUW were somewhat overstated, and unlikely to eventuate;

(b) embraced the view that there was no identity of interest between the Proponents; and

(c) submitted that there was nothing in what the CFMEUW raised which could not be dealt with by appropriate directions at the time, should that become necessary.

4. WALGA adopted the position advanced by WASU. WALGA also stated that its first witness, Ms Miller, was not a witness of “relevant events”.

5. The context of these submissions was that WALGA and WASU had in the weeks and months prior to 5 July 2024 collaborated very extensively in relation to the evidence to be called by WALGA witnesses, with more than 100 emails and text messages exchanged on the subject matter and several meetings called. This fact was discovered by happenstance.

6. The collaboration included collaboration in relation to subject matter on which WASU would “cross‑examine” WALGA witnesses. In at least some instances it appears that the subject matter was introduced by WASU. It appears that senior counsel for WASU conducted conferences with WALGA witnesses. Ms Miller appears to have been the fulcrum of the collaboration.

7. In short, the concerns which the CFMEUW had raised had, to the knowledge of WASU and WALGA, already manifested by 5 July 2024.

8. WALGA in due course led additional evidence in chief in relation to subject matter apparently proposed by WASU. WASU in due course cross‑examined in relation to that subject matter including through leading questions. This included evidence in relation to a safety inspection at the Shire of Serpentine‑Jarrahdale, management of bullying allegations at the City of Wanneroo and the ratio of inside to outside workers in local government.

9. Both the Full Bench and the CFMEUW were unaware that WASU and WALGA had collaborated in this way, and were unaware that the cross‑examination had been previously arranged. By dint of this expedient WASU was able to adduce evidence of matters supportive of its application which were not included in witness outlines filed in accordance with the directions of the Full Bench. At the same time, both WASU and WALGA insisted that the CFMEUW not be permitted to lead evidence beyond that included in its outlines of evidence.

10. In those premises, concerns arise in relation to at least the following matters:

(a) the basis on which it was submitted on 5 July 2024 that the CFMEUW’s concerns were overstated and unlikely to eventuate;

(b) the basis on which it was submitted that any of the concerns raised by the CFMEUW could be addressed by directions (bearing in mind that the Full Bench and CFMEUW were unaware of the Proponents’ conduct and only became aware of it by happenstance);

(c) the possibility that WASU and WALGA have subverted the directions of the Full Bench in relation to the filing of outlines of evidence, by adducing what is effectively additional evidence in chief through the expedient of “cross‑examination”;

(d) the credibility of the WALGA witnesses and potentially WASU and LGRCEU witnesses, and the risk that those witnesses have been coached, pressured or directed in relation to their evidence;

(e) the integrity of the evidence led by the Proponents generally and by the WALGA witnesses in particular; and

(f) the possibility that the Commission’s processes have been abused in the sense that the proceeding has been conducted in a manner which tends to bring the administration of justice into disrepute.

11. The documents sought are potentially relevant to at least the following matters:

(a) the credibility of witnesses called by the Proponents;

(b) the industrial conduct of WASU;

(c) the CFMEUW’s submission that WASU is unable to effectively represent workers because of the nature of its relationship with WALGA and its members; and

(d) the potential abuse of the processes of the Commission in Court Session and the steps required to protect those processes from abuse.

12. There is at this stage no direct evidence of collaboration between WASU and the LGRCEU in relation to the evidence of the LGRCEU witnesses. However, there was extensive supplementary evidence in chief led from LGRCEU witnesses Mr Johnson and Ms Ballantyne, and substantial questioning of those witnesses by counsel for WASU. In that context, and having regard to the modus operandi now revealed, it is necessary that the Full Bench obtain clarity in relation to the potential of similar collaboration in respect of the LGRCEU witnesses. If there has been collaboration, the Full Bench should know about it; if there has not been, compliance with orders for production will be straightforward.

120   The Commission in Court Session refused to find that there was impropriety in the conduct of the WASU and the WALGA for the reasons set out at [29]‑[38] of the March reasons.  Yet the CFMEUW continues to take the WASU’s counsel’s comments about the CFMEUW’s concerns being overstated and unlikely to eventuate out of context.

121   We have indicated above why the CFMEUW’s treatment of these events is misplaced.  At the time of the directions hearing, the CFMEUW’s counsel apparently understood the comments were not directed at the concern about conferral that he had raised.

122   The WASU’s counsel did not address the second sub‑issue within the cross‑examination point about the rights of the other parties vis‑à‑vis the cross‑examination of each other’s witnesses.  In short, the WASU’s counsel did not make any representation to the effect that the parties would not confer with each other in relation to witnesses to be called by them, and that was not the basis upon which directions were made or the proceedings conducted.

123   Further, as it became known that the WASU and the WALGA had conferred in relation to witness evidence, the Commission in Court Session made directions restricting the WASU to asking non‑leading questions in cross‑examination. This was the appropriate response to maintaining the integrity of the proceedings, and ensuring the proceedings are conducted in accordance with equity, good conscience and the substantial merits of the case.

Disposition and orders

124   We are satisfied that the documents listed in each of the affidavits attract legal professional privilege.  The CFMEUW’s challenge to the claim of privilege fails. No order for production should be made and the application should be dismissed.