Cretney v State of NSW (No. 2) [2005] NSWIRComm 480

Industrial Court of New South Wales

CITATION: Cretney v State of NSW (No. 2) [2005] NSWIRComm 480

APPLICANT Patricia Cretney PARTIES: RESPONDENT State of New South Wales

FILE NUMBER(S): 7430 of 2003

CORAM: Marks J

CATCHWORDS: Legal professional privilege - document containing, in part, legal advice given orally in conference - impossible to dissect out those parts which reflect legal advice - held in the circumstances privilege should attach to whole document except for introductory material.

HEARING DATES: 12/21/2005

DATE OF JUDGMENT: 12/23/2005

APPLICANT Ms C Howell of counsel Solicitor: Ms M Walsh Turner Freeman Lawyers

LEGAL REPRESENTATIVES:

RESPONDENT Ms K Nomchong of counsel Solicitor: Mr R Cameron Hicksons Lawyers

JUDGMENT:

- 2 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Marks J Friday 23 December 2005

Matter No IRC 7430 of 2003

PATRICIA CRETNEY v STATE OF NEW SOUTH WALES (No. 2)

Application under s.106 of the Industrial Relations Act 1996

INTERLOCUTORY JUDGMENT ON PRIVILEGE [2005] NSWIRComm 480

1 In judgment delivered on 18 November 2005, I determined that privilege attached to a particular document and that privilege attached to that part of a further document dated 25 August 2000 which contained or which referred to legal advice given by a Ms Baker. 2 The parties are unable to reach agreement as to whether privilege attached to all or any part of the document of 25 August 2000. After submissions, I determined to view that document and to decide this outstanding matter. 3 The document is entitled "Evaluation of Information Arising From the Management Review of Penrose PS - June 2000". Introductory material sets out the background to the creation of the document. In my opinion, the paragraph entitled "Background" and the first paragraph under the heading "Method" do not attract professional legal privilege because there is no reference to any legal advice given by Ms Baker contained within those paragraphs. 4 However, the position with respect to the remainder of the document is not clear. This is because the solicitor concerned, Ms Baker, was one of a number of persons conducting a review of certain material gathered by other persons, none of whom, apart from Ms Baker, was a solicitor. The document does not make clear whether the discussion which follows represents the contribution of any particular person. Some of the material may arguably be identified as representing a contribution made by a solicitor, particularly where there is reference to breaches of a code of conduct and the like. The same comment applies where there is a reference to potential charges of misconduct referring not to the applicant but to another employee. 5 Having reviewed the document, it is my view that it is virtually impossible to dissect from it any particular part of it which may refer to legal advice or may reflect legal advice given by Ms Baker. It is clear from the document that Ms Baker participated in its creation. 6 In these circumstances, apart from the introductory material to which I have referred, I conclude that legal professional privilege should attach to the remainder of the document.