Justice Whelan of the Federal Court has held that an investigatory report into the conduct of an employee is not covered by client legal privilege. Accordingly, it may be disclosed to the subject of the report. 

Doutta Galla Aged Services employed John Bartolo in its aged care facility. Doutta Galla appointed a law firm, Aitken Partners, to investigate the circumstances in which Bartolo had sent a particular email. Aitken Partners sent their report into the matter to the board, which recommended Bartolo's termination to the CEO. Bartolo alleged in the Federal Court that the termination amounted to adverse action and sought discovery of the report. Doutta Galla objected for the reason that the report was protected by client legal privilege. Justice Whelan disagreed as the investigation was not required to be undertaken by lawyers. Justice Whelan conceded that some parts of the report may be privileged but the entirety of it certainly was not. Furthermore, in her Honour's view, it would be unfair to prevent Bartolo from obtaining the report when it formed the basis of the reasons for the recommendation of his termination. 

Lessons for Employers 

Employers should note that the decision is not a definitive ruling on the subject: this is a decision of one judge on an ancillary aspect of the case. Employers should consider, however, arranging for one of its officers to sign the report and include it in their brief to the instructing solicitors in order to maximise the prospects of it being covered by client legal privilege. 

Andrew Berriman