Hinder v The Salvation Army (NSW) Property Trust (No 2) [2016] NSWCATAD 55

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hinder v The Salvation Army (NSW) Property Trust (No 2) [2016] NSWCATAD 55 Hearing dates: N/A Date of orders: 22 March 2016 Decision date: 22 March 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: M Tibbey, Senior Member Decision: The claim for privilege of the Wise Report is upheld. Catchwords: Legal professional privilege – litigation in contemplation, Legislation Cited: Civil And Administrative Tribunal Act 2013 Cases Cited: Barnes v Commissioner of Taxation (2007) 242 ALR 601 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 Category: Procedural and other rulings Parties: Kathleen Hinder (Applicant) The Salvation Army (NSW) Property Trust (Respondent) Representation: Solicitors: J Wright (Agent for Applicant) Salvos Legal Limited (Respondent) File Number(s): 1510440 Publication restriction: Nil

REASONS FOR DECISION 1. The facts of this matter are set out in the decision of Deputy President Hennessy LCM dated 18 November 2015 granting leave to proceed with the complaint. There is no need to repeat them here. 2. The Applicant has appealed against the decision of the Registrar to refuse the Applicant access to a document known to both parties as "the Wise McGrath Investigation Report," dated 15 September 2014. It will be referred to hereafter as 'the Wise Report'. 3. The Applicant has filed submissions dated 4 January 2016 seeking access to the Wise Report. Those submissions were received by the Tribunal on 9 February. It is possible that the submissions should have been dated 4 February 2016. The Respondent filed submissions on the issue, dated 19 January 2016 and received on that date, and further submissions dated and received on 23 February 2016. 4. The Applicant has argued in her submissions dated 4 January 2016 that the Wise Report does not attract legal professional privilege because: 1. Her letter of 20 September 2012 to the Salvation Army stating that she would be seeking legal advice was written 20 months after her suspension; 2. she had not actually commenced any legal proceedings; 3. when the report was commissioned it was said to be an "external independent report"; 4. Wise McGrath is neither independent or external; 5. Ms Kinder requested a copy of the report prior to agreeing to give evidence and it was implied that one would be provided to her; 6. Ms Hinder did not "make allegations", she "spoke the truth"; 7. On 8 September 2014 Ms Hinder notified the Salvation Army that she was "not taking any legal action"; 8. It was not made clear to Ms Hinder that the purpose of the Wise Report was to assess the merits of her claim. 1. Against this, the Salvation Army, in their submissions of 19 January 2016 and further submissions of 23 February 2016, claim privilege over the report as having been obtained for the dominant purpose of providing legal advice to the client in the context of litigation. 2. The Respondent argues, in relation to (a), (b) and (g) above, that although proceedings were not commenced until 16 January 2015, when the Applicant lodged a Complaint with the Anti-Discrimination Board, her letters of 5 September 2012 and 8 November 2012 both referred to her obtaining legal advice and contemplated legal action being commenced. Later correspondence referred to "forced resignation," loss of earnings and taking proceedings through NCAT. 3. In relation to (c) and (d) above, the Respondent argues that for the purpose of determining whether or not a document is privileged, it is not relevant whether Wise McGrath was "external and independent" of the Respondent. 4. As to (e), the Respondent denies that such a representation was made and says that it was made clear that the report would be privileged against production to the Applicant. 5. As to (f) the allegations or claims of the Applicant are denied by the Respondent. 6. As to (g) the Respondent relies upon two e-mails to the Applicant, both of which are said to have made clear to the Applicant that the Wise Report would be used in order for advice to be given to the Respondent as to "a suitable resolution" of her complaint and to assess "any possible claim" against the Respondent. 7. The starting point for considering the claim for legal professional privilege in relation to the Wise Report is Section 67(1) of the Civil and Administrative Tribunal Act, 2013 (NSW) (hereafter 'the NCAT Act') which makes clear that if a document is privileged under the Evidence Act 1996 (NSW), then it attracts legal professional privilege for the purposes of proceedings brought in NCAT. 8. Section 118 of the Evidence Act provides that where a document is prepared either by a lawyer, the client or a third party (such as Wise McGrath, whether or not Wise McGrath is independent and external to the Respondent) "for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client" then another party cannot compel production of that document. 9. Section 119 of the Evidence Act, (1995) NSW provides that a confidential communication is protected from disclosure to another party if it was prepared "for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party". 10. The Wise Report was produced to the Tribunal under summons and privilege was claimed. The Tribunal has had access to the Wise Report to assist in determining whether the document can properly be regarded as privileged against production on the basis of a claim of legal professional privilege (in accordance with Barnes v Commissioner of Taxation (2007) 242 ALR 601) . 11. It is clear on the face of the document that the Wise Report was commissioned by Luke Geary, Managing Partner of Salvos Legal on 10 April 2014 for the purposes of investigating the circumstances leading up to the ending of Ms Hinder's employment relationship with the Salvation Army. Salvos Legal were clearly retained in order to advise the Respondent regarding the matter. 12. Although at the time the Wise Report was commissioned no proceedings had been commenced, it is clear, at least from the letters of the Applicant dated 5 September 2012 and 8 November 2012 respectively, and from subsequent correspondence contained in emails of 7 January 2013 and 21 February 2014, that the Applicant considered that she had been constructively dismissed, forced to resign, had suffered economic and non-economic loss and was considering commencing proceedings. 13. It is not necessary for a claim of legal professional privilege that proceedings were commenced by the time the report was commissioned. It was clear from the correspondence of the Applicant that there was a real likelihood that proceedings would be commenced by the Applicant in relation to her employment and the circumstances in which she resigned. Proceedings were relevantly "in contemplation" by the Applicant at the time the report was commissioned and received. 14. The test established by the High Court, at common law, in determining whether a document is privileged from production for viewing by another party is set out in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 as being that where a document is brought into existence for the dominant purpose of being submitted to legal advisers for advice or for use in legal proceedings, the document is privileged. 15. Sections 118 and 119 of the Evidence Act, NSW reflect the common law in providing that a document is privileged from production where a document is brought into existence for the dominant purpose of the client being provided with legal advice in relation to Section 118 or, pursuant to Section 119, "for the purpose of professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party." 16. The correspondence of the Applicant of 5 September 2012 and 8 November 2012 made it clear that she was considering taking legal action. 17. The Tribunal finds that the Wise Report was brought into existence for the purpose of obtaining advice and/or for use in proceedings which were anticipated in relation to this matter and which were subsequently commenced by the Applicant. 18. Accordingly, the claim for privilege of the Wise Report is upheld. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2016