Australian Bank Employees Union v Westpac Banking Corp [1988] FCA 63

JUDGMENT No. 63738 .

CATCHWORDS

Discovery - claim to legal professional privilege - whether document brought into existence for purpose of litigation

reasonably anticipated.

AUSTRALIAN BANK EMPLOYEES' UNION v. WESTPAC BANKING CORPORATION

No. 3 of 1987

Beaumont J Sydney 2 March 1988

IN THE FEDERAL | oer OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. 3 of 1987

INDUSTRIAL DIVISION

BETWEEN: AUSTRALIAN BANK EMPLOYEES ' UNION

Applicant AND: WESTPAC BANKING CORPORATION

Respondent

CORAM: BEAUMONT J PLACE: SYDNEY DATE: 2 MARCH 1988

REASONS FOR JUDGMENT

In these proceedings under s.119 of the Conciliation and Arbitration Act 1904, Australian Bank Employees Union alleges that Westpac Banking Corporation terminated the employment of Miss Kylie Anne Robertson in breach of the Bank Officials (Federal) (1963) Award. The parties have exchanged

lists of documents. Included in Westpac's list is a document

there described as follows:

"387. Report prepared by Warren Lee & Co. Pty. Limited Investigators and Assessors and dated 24 July, 1986."

Westpac has objected to the production of the document on the ground that it is privileged: the claim, which is

disputed by the Union, is for legal professional privilege. It

arises in the following circumstances.

Miss Robertson commenced employment with Westpac on 31 January 1985. On 4 April 1985, Miss Robertson submitted to Westpac a workers' compensation claim and report of an injury suffered to her left knee when she fell at a railway station on her way to work. On or about 12 April 1985, Westpac received a certificate from Dr. Webb indicating that Miss Robertson should be fit to resume work on 15 April. On about 11 July Westpac's workers' compensation claims manager (Westpac is self-insured) noted that Miss Robertson had been absent from work from 17 June and was expected to return to work on 19 July. On about 18 July 1985, Westpac received a certificate from Dr. Bosanquet indicating that Miss Robertson would be unable to work from 19 July until 16 August. On about 16 August, Westpac received another certificate from Dr. Bosanquet indicating that Miss Robertson would be unable to work until 13 September. On about 28 October, Westpac received a number of documents from Miss Robertson: (1) A further certificate from Dr. Bosanquet dated 16 September stating that Miss Robertson would be fit to resume work on 16 September and that the injury to her knee had healed; (2) a report from Dr. Bosanquet to Dr. Webb dated 13 September; (3) a claim for workers' compensation dated 2 October reporting a further injury on 28 September; (4) a further report from Dr. Bosanquet to Dr. Webb dated 4 October referring toa further injury to her left knee recently suffered by Miss Robertson at home. On about 3 January 1986, Westpac received a further workers' compensation claim form from Miss Robertson dated 11