In the recent case of Nicholson v Waco Kwikform Limited (the Kwikform case) the NSW Industrial Relations Commission (NSWIRC) found that Kwikform’s incident investigation report was protected by legal professional privilege and was therefore inadmissible as evidence in Court. The decision provides some interesting consideration of what does or does not qualify communications and documents as legal professional privileged.

To claim legal professional privilege, communications must be:

  • confidential between a client and its legal representative, and
  • for the dominant purpose of giving or seeking legal advice, or the provision of legal services, including anticipated litigation and representation in Court.

Legal professional privilege cannot be claimed as a blanket protection and does not extend to communications or documents prepared prior to seeking legal advice or before legal proceedings are anticipated.

In determining if a document/ communication is subject to legal professional privilege, the Court will generally consider the circumstances surrounding the production of the document (including any reasons other than privilege) and the intent of the person who requested, created or commissioned the document or communication.

Kwikform’s solicitors were engaged to provide advice about an incident which resulted in the death of an employee earlier that day. Kwikform’s solicitors subsequently requested that Kwikform produce several documents to “assist them in providing legal advice” in relation to the incident, including an incident investigation, the results of which would be provided to the solicitors.

WorkCover issued proceedings to determine whether the documents produced by Kwikform were subject to legal professional privilege. At the time of the hearing, no litigation had commenced.

WorkCover argued that the documents were not produced for the dominant purpose of seeking legal advice or for use in legal proceedings. Rather they were produced for multiple purposes including:

  • conforming with Kwikform’s internal procedures requiring that all accident and injuries be reported
  • detecting if there were any faults in the system of work, and
  • ascertaining if there had been any breaches of Kwikform’s policies by employees or subcontractors.

No evidence was called by WorkCover to support its assertion of “other purposes.” It submitted it “was a matter of common sense and logic.”

The prosecution sought to rely on various judgments which found that there may be a number of purposes for producing communications of this type, but where the sole or dominant purpose was not for seeking legal advice or the provision of legal services, it was not subject to legal professional privilege.

The NSWIRC determined that it was clear that litigation was anticipated in relation to the incident, as demonstrated by Kwikform’s early engagement of solicitors to provide legal advice and as outlined in correspondence between Kwikform and its solicitor. It is also clear that the solicitors’ purpose in commissioning the report was to enable them to provide advice as to the legal aspects of the matter.

The NSWIRC considered the argument that the documents were produced for multiple purposes, and found that it was unable to be sustained.

“The documents (or more relevantly the communications contained in the documents) were commissioned by solicitors. Matters of accident and injury reporting were therefore unlikely to be more than a peripheral concern. The dominant, if not only purpose set out in the letter, for the preparation of these documents was for the provision of legal advice.”

This was also evidenced by the marking of each document as “privileged and confidential.”

Implications for Employers

The Kwikform case reinforces that in determining if a document is subject to legal professional privilege, the dominant or most important purpose for bringing the document into existence should be obtaining legal advice, but it need not be the only purpose.

When seeking to rely on documents and communications as being subject to legal privilege, employers should:

  • consider which incidents are likely to require urgent legal advice, or have the potential for legal proceedings (eg. when a regulator commences an investigation into a workplace incident)
  • notify their solicitors immediately upon the occurrence of such an incident and instruct them to lead the investigation, and
  • carefully consider the content and purpose of communications between the employer and their solicitors.