Mazey v Climax Mining Limited and ors [2005] NSWIRComm 160

Industrial Relations Commission of New South Wales in Court Session

CITATION: Mazey v Climax Mining Limited and ors [2005] NSWIRComm 160

APPLICANT Michelle Sue Mazey

FIRST RESPONDENT Climax Mining Limited PARTIES: SECOND RESPONDENT Petsec Energy Limited

THIRD RESPONDENT Terrence Norman Fern

FILE NUMBER(S): 3577 of 2002

CORAM: Marks J

CATCHWORDS: Legal Profession Act 2004

LEGISLATION CITED: Industrial Relations Act 1996

HEARING DATES: 05/11/2005

DATE OF JUDGMENT: 05/23/2005

APPLICANT Solicitor: Richard Frederick Lund Thomson Playford LEGAL REPRESENTATIVES:

RESPONDENTS Solicitor: Judith Healy Phillips Fox

JUDGMENT:

- 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: Marks J Monday 23 May 2005

Matter No IRC 3557 of 2002

MICHELLE SUE MAZEY v CLIMAX MINING LIMITED AND OTHERS

Application under s.106 of the Industrial Relations Act 1996

INTERLOCUTORY JUDGMENT ON PRIVILEGE [2005] NSWIRComm 160

1 The Court has been asked to resolve controversy between the parties concerning a claim for privilege made by the respondents with respect to the production of certain documents in answer to a summons for production issued by the applicant, against Inpro Australia Pty Ltd ("Inpro"). 2 The factual circumstances surrounding the proceedings may be shortly stated. The applicant was formerly employed by the second respondent and performed certain services for the first respondent. She became unfit for work and her employment was subsequently terminated. She sought to make a claim on a salary continuance insurance policy which was arranged for the first and second respondents by Inpro, an insurance broker. It transpires that the applicant was not accorded benefits under the policy in circumstances which were said by the applicant to have created relevant unfairness for the purpose of s 106 of the Industrial Relations Act 1996 ("the Act"). 3 The documents with respect to which privilege is contained are said to include reference to legal advice received by the respondents from Corrs Chambers Westgarth Lawyers, whom I accept, for the purpose of this interlocutory judgment, were retained by the respondents to advise them as to whether insurance cover under the policy extended to cover the applicant. 4 The proceedings have been conducted on the basis that the parties filed a joint statement of issues to enable the matter to be determined by me in chambers. I commend the legal practitioners concerned for proceeding in this manner, which no doubt has contributed to the resolution of this issue efficiently and cost-effectively. Both parties agreed that I should have regard to the documents in formulating my judgment. 5 In my opinion, correspondence between the solicitors concerned and the brokers, including correspondence in reply, seeking copies of relevant correspondence and other documents with respect to the insurer are privileged as being communications between a lawyer for the respondents and a third party, made for the dominant purpose of providing legal advice. The correspondence is dated at about the time of the emergence of the controversy between the applicant and the respondents, with respect to entitlement to claim under a group salary insurance policy. Even though those solicitors, Corrs Chambers Westgarth, are not representing the respondents in the s 106 proceedings in this Court, I proceed on the basis of the assertion made by the solicitors acting in these proceedings that their client obtained this advice with respect to the insurance issue. This privilege would therefore attach to correspondence dated 17 June 2004 and 21 June 2004. 6 The next document in issue is a letter from Tower Australia Limited ("Tower") to Inpro dated 15 March 2005. That letter appears to be referred to in a communication from Inpro to a Mr Jones of the second respondent, dated 10 March 2005, with respect to which privilege is not claimed by the respondents. The letter of 10 March 2005 refers to a letter of confirmation to be issued by Tower "shortly". As such, the letter from Tower dated 15 March 2005 does not attract privilege. 7 The final document is a communication from Geoff Fulcher of the second respondent to Catherine Kenny of Inpro. Privilege is claimed by the respondents on the basis that the production of this document "would result in the disclosure of a confidential communication between a client and a lawyer in that Geoff Fulcher appears to be, or may be, communicating legal advice or other information he has received from a lawyer". There is nothing in the communication which, in my opinion, is indicative of any legal advice or other information received from a lawyer. Indeed, any expression of opinion contained within the document appears to be that of Mr Fulcher himself. Accordingly, any claim for privilege with respect to this document is rejected. 8 Finally, in response to a matter raised in the issues document, the facsimile from Ritchie and Partners Financial Services to Corrs Chambers Westgarth Lawyers, which is undated and with respect to which a claim for privilege is no longer pressed, should be made available for viewing and photocopying by the applicant's solicitors, with a reservation with respect to any argument concerning privilege which may be brought with respect to any attachments to the facsimile document. 9 The costs associated with the determination of this issue with respect to privilege are reserved. Liberty to apply, which has previously been granted generally with respect to the proceedings, continues.