Privileged investigation reports in WorkCover WA proceedings

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By Jacob Fowler, Graduate

RLA Morgans v Vrebac [2022] WADC 86 Mr Vrebac was employed by RLA Morgans as a truck driver. After allegedly suffering a psychiatric condition due to bullying and sexual harassment in the course of his employment, he applied to WorkCover WA for compensation.

Quayside Investigation were engaged by lawyers on behalf of RLA Morgans to conduct a factual investigation into the allegations.

On 12 November 2021, Mr Vrebac made an interlocutory application in the proceedings before WorkCover seeking an order that RLA Morgans disclose to him a copy of the investigation report. The application was opposed by RLA Morgans on the basis that the report was protected by the doctrine of legal professional privilege. Upon inspection of the contents of the report, Arbitrator Wallbridge ordered that it be disclosed on the basis it was necessary for the ‘fair, just, economic and quick resolution of the dispute’.

The employer appealed the Arbitrator’s decision to the District Court of Western Australia pursuant to section 247(1) of the Workers Compensation & Injury Management Act 1981 (WCIM Act) on the basis the decision involved an error of law.

In the appeal, it was argued on behalf of RLA Morgans that section 206(2) of the WCIM Act allows an Arbitrator to call for a document to ascertain him or herself whether the report is in fact privileged but this does not extend to requiring a party to provide that report to the other party to proceedings.

RLA Morgans argued that such power would undermine the ability of parties to conduct investigations through their lawyers and that the Arbitrator has committed an error of law in finding that he had the discretion under the WCIM Act to disclose documents that were privileged.

On behalf of Mr Vrebac it was argued that the language of section 193(6) does not limit the power to order production of a document only to an Arbitrator and that the doctrine of privilege can be abrogated by the “clear wording and necessary implication” of the statutory provisions.

In the appeal, the District Court noted that legal professional privilege is an important common law immunity and that if it were to construe any legislation as “abolishing, suspending or adversely affecting rights, freedoms and immunities that the courts have recognised as fundamental”, the language of the provisions would have to be unambiguous. Thus, unless there are clear words indicative of abrogation, the Court will not construe legislation in that manner.

The Court held that the report completed by Quayside Investigations demonstrated that the instructions given to Quayside had been confirmed by RLA Morgans’ lawyers and the report was to be given to the lawyers. The matters under investigation were the “alleged illegal and inappropriate behaviour” of an employee of RLA Morgans. The dominant purpose for the preparation of the report was to provide witness statements to the lawyers of RLA Morgans. Accordingly, the Arbitrator was found to have been correct to hold that the report attracted legal professional privilege.

The Court granted RLA Morgans leave to appeal and allowed the appeal, finding that the report was privileged and the Arbitrator did not have the power to order the report to be disclosed to the worker and his representatives. Mr Vrebac and his solicitors were ordered to destroy any and all copies of the report and its annexures and to make no effort to recover any of the documents or copies of the report.

This decision clears up the uncertainty which has existed in the WA workers’’ compensation jurisdiction as to whether Arbitrators have the power to order disclosure of privileged investigation reports and witness statements. So long as legal professional privilege can clearly be shown to apply, the Vrebac decision makes it clear that such power does not exist. Arbitrators can only require such reports to be produced to themselves, for the purpose of determining whether the claim of privilege is valid.

For further information, please do not hesitate to contact us.

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