Alex Avramides v Sonoma Baking Company Pty Ltd, Andrew Connole [2023] FWC 1617

1 Fair Work Act 2009 s.365—General protections Alex Avramides v Sonoma Baking Company Pty Ltd, Andrew Connole (C2022/8568) DEPUTY PRESIDENT SLEVIN SYDNEY, 3 JULY 2023 General protections application involving dismissal – interlocutory application access to documents [1] On 23 December 2022 Mr Alex Avramides made an application for the Commission to deal with a dismissal dispute pursuant to s. 365 of the Fair Work Act 2009 (Act). He claims that contrary to s.340 he was dismissed by Sonoma Baking Company Pty Ltd (Sonoma) for making complaints that Sonoma had breached his contract of employment. He also alleges that Mr Andrew Connole was involved in the contravention within the meaning of that term in s.550 of the Act. [2] The respondents raise a jurisdictional objection to the application claiming that Mr Avramides was not dismissed. [3] The application was initially allocated to Deputy President Anderson. The Deputy President dealt with a number of interlocutory matters involving production of documents, including objections to production. The Deputy President also issued directions for the filing of material and listed the matter for hearing from 30 July to 2 August 2023 (with 3 August set aside should it be needed). The matter was listed for hearing by video, but, at the parties request, has been re-listed for in person hearing in Sydney. Deputy President Anderson is based in Adelaide Consequently, the matter has been re-allocated to me for hearing in Sydney. [4] An outstanding issue for determination prior to hearing is a number of claims by the respondents involving legal professional privilege. [5] On 30 May 2023 orders were made directed to Mr Anthony Bell, the respondent’s accountant, to produce documents. On 6 June 2023 Mr Bell produced documents. The respondents were provided first access to enable them to raise any objections to access by the applicant. [6] The respondents initially raised objection to over 200 documents. Following a mention on 9 June 2023 the parties held discussions and reduced the scope of the contest to 16 [2023] FWC 1617 DECISION -- 1 of 7 -- [2023] FWC 1617 2 documents. The respondents claim that the 16 documents are subject to legal professional privilege. [7] Sections 589 and 590 of the Act give the Commission broad discretionary powers to determine the procedure to be followed in matters before it. Section 590 confers a broad procedural power to the Commission to inform itself in relation to matters before it. The Commission may inform itself in such manner as it considers appropriate, including, relevantly, by requiring a person to provide copies of documents or records or other information (s.590(2)(c)). Section 590 operates in conjunction with s.591 which provides that the Commission is not bound by the rules of evidence and procedure. While the Commission is not bound by the rules of evidence, those rules are relevant and can provide guidance on good procedure.1 [8] The Full Bench in Stephen v Seahill Enterprises Pty Ltd [2021] FWCFB 2623 noted legal professional privilege is a rule of substantive law and an important common law immunity.2 It may not be abrogated by statute except by clear words. No provision of the Act operates to abrogate legal professional privilege.3 The Full Bench made it clear that the Commission is not empowered to issue orders requiring the production of documents containing communications which are subject to legal professional privilege where the person to whom the privilege belongs objects production. [9] The Full Bench at described the two main categories of legal professional privilege in this way: [62] There are two main categories of legal professional privilege. The first is legal advice privilege. It applies to confidential written and oral communications between a lawyer and a client or between lawyers acting for a client, or the contents of a confidential communication prepared by the lawyer, the client, or another person, for the dominant purpose of the lawyer(s) providing legal advice to the client. Thus, not only is the advice of the lawyer to the client protected, but also any communication or document passing from the client to the lawyer (such as the request for advice or a set of factual instructions) for the purpose of the provision of the legal advice. The second is litigation privilege. It applies to a confidential communication between a client and another person or the client’s lawyer and another person, or the contents of a confidential document that was prepared, for the dominant purpose of the client being provided with professional legal services relating to a current, anticipated or pending Australian or overseas legal proceeding (including a proceeding before the Commission) in which the client is, was or may be a party. [10] The Full Bench went on at [63] to describe the relevant principles applying to legal professional privilege as follows: (1) Legal professional privilege is a right belonging to the client, not the lawyer or any relevant third party. (2) Legal professional privilege protects confidential communications rather than documents as such, and it is the nature of the communication within the document which determines whether or not the privilege attaches. -- 2 of 7 -- [2023] FWC 1617 3 (3) A client making a claim of privilege carries the onus of establishing its claim. (4) The “dominant purpose” for a communication is its “ruling, prevailing, paramount or most influential purpose”, and is not merely the “primary” or “substantial” purpose. (5) A communication in a document brought into existence for the dominant purpose of a client being provided with professional legal services will be privileged notwithstanding that some ancillary or subsidiary use of the document was contemplated at the time. (6) What is the dominant purpose is a question of fact, to be determined objectively. (7) An appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence. (8) Usually the purpose of a document will be that of the maker of the document, but in some cases it will be the purpose of the person who called the document into existence, such as a solicitor commissioning the provision of a technical report. (9) Conduct inconsistent with the maintenance of the confidentiality which legal professional privilege is intended to protect may give rise to an imputed waiver of the privilege. Whether inconsistent conduct gives rise to waiver is informed by notions of fairness. Questions of waiver are matters of fact and degree.’ (references omitted) [11] In this matter the privilege is claimed by the respondents in circumstances where the order for production was made on Mr Bell, a third party. The respondents seek to have their privilege maintained by having the Commission deny the applicant access to documents that contain privileged communications. They are entitled to do so and the task for the Commission is to determine, by application of the above principles, whether the contested communications attract the privilege, and if so, to ensure that the privilege is indeed maintained. [12] In making the claim the respondents rely upon an unsworn statement of Peter Frazer dated 19 June 2023. The statement was received without objection. It states that Mr Frazer is the Managing Director and Principal of Bell Partners Legal a law firm “nestled within Bell Partners”. Mr Frazer describes Bell Partners as a multi-disciplinary practice providing accounting, business and legal advice to Sonoma and Mr Connole. The statement describes Sonoma and Mr Connole as also being clients of Bell Partners Legal. Mr Bell is said to provide the accounting and business advice with Mr Frazer being the primary contact for legal advice. Mr Frazer describes the billing practices of Bell Partners Legal for work performed for Sonoma and Mr Connole as monthly invoices for legal advice which includes employment law advice. He describes communications from Mr Connoles involving legal advice commonly involving multiple emails and/or text messages. Those communications may also be sent to Mr Bell. Mr Frazer refers to Mr Connole seeking legal advice by email, text messages and telephone during -- 3 of 7 -- [2023] FWC 1617 4 November and December 2022. He also refers to being copied into a number of communications sent to and from the respondents’ solicitors in the current matter. [13] Mr Frazer does not address the specific documents for which privilege is claimed. [14] The respondents provided me with a table listing all objections taken by the respondent to the material produced. The table was received without objection. The table lists over 200 objections. Each objection is given an item number, a subject line, an indication of the recipient of the communication, who was copied in, who sent it, and the time and date it was sent. In submissions the respondents identified the 16 items that were said to be subject to privilege. The 16 items comprise emails and text messages or fragments of emails or text messages such that, for example, a single text message, due to the manner in which it was provided by Mr Bell, may be recorded as a number of items. [15] I was also provided with copies of the 16 items containing the communications the subject of the claims. The respondent also provided other items from the list which provided context to assist in determining the purpose of some of the communications. These documents were not provided to the applicant. No objection was taken to this course. [16] The applicant seeks access to the 16 items contending that the respondent’s case is insufficient to make out the privilege. The applicant contends, and the respondents accept, the respondents have the onus of making good the claims. The applicant says, on the material provided, the claims do not meet the dominant purpose test. The applicant points out that no evidence is led from Mr Bell or Mr Connole in support of the claim. The applicant submitted that the claims cannot be determined globally and that each document must be considered against the applicable test. Consideration [17] I agree with the applicant that the respondents have the onus of making good the privilege claims. I also agree that each communication must be considered separately. Each communication must be confidential. It must have as its ruling, prevailing, paramount or most influential purpose the purpose of a client being provided with legal advice or professional legal services relating to a current, anticipated or pending proceeding. The determination of that purpose is a question of fact, to be determined objectively. [18] I disagree with the applicant’s submission that the material provided by the respondents was insufficient to establish the dominant purpose of the communications. Mr Frazer’s statement establishes that he was providing legal services at the times the communications were made. The table of objections provides broad descriptions of the communications, the parties involved in those communications and the times they were made. The communications themselves are contained in emails and text messages. I was provided with each of the communications. The purpose of the communications is evident on their face. In the circumstances it was not necessary for Mr Bell or Mr Connole to provide statements. [19] Turning to the communications, the respondents’ submissions group them into three categories. The first category is communications contained in emails for which litigation privilege is claimed. The second category is communications contained in emails for which -- 4 of 7 -- [2023] FWC 1617 5 litigation and advice privilege is claimed. The third category is communications by way of text messages over which both litigation and advice privilege is claimed. [20] The first communication in the first category, which is referred to as item 52 in the table of objections, is contained in an email dated 24 November 2022. The email is part of a chain of emails between Mr Bell, Mr Connole, Mr Frazer and lawyers who are representing Mr Connole in the current proceedings. The subject matter of the emails is described as ‘RE: Confidential and Privileged Re: Further Revised Letters – AA’. AA is a reference to the applicant. The communication is confidential. I am satisfied on the face of the email the dominant purpose of the communication is the provision of legal advice to Mr Connole going to anticipated litigation involving the applicant. Nothing in the communication is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect and so no question of waiver arises. Consequently, I uphold the claim and the applicant is refused access to item 52. [21] The second communication, which is referred to as item 121 in the table of objections, is described in the table as a communication from Mr Bell to Mr Connole copied to Mr Frazer on 8 November 2022 at 8.46 AM. Its subject is recorded as ‘Re: 14/10 Comms’. On the face of the communication I am satisfied the dominant purpose is the provision of legal advice to Mr Connole concerning anticipated proceedings. Nothing in the communication is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect and so no question of waiver arises. I uphold the claim and the applicant is refused access to item 121. [22] The third communication, which is referred to as item 133A in the table of objections, is described as a communication from Mr Bell to Mr Connole. It was sent on 24 November 2022 at 4.41 PM. The subject of the email is ‘Re: Alex Announcement’. The document includes two emails the second sent at 4.46 PM on the same day. This later email, which is item 134 in the table of objections, was also sent to Mr Frazer and the lawyers representing the respondents in the current proceedings. On the face of the communications in the two emails it appears that the dominant purpose was the provision of legal advice to Mr Connole concerning anticipated or pending proceedings. Nothing in the communication is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect and so no question of waiver arises. I uphold the claim and the applicant is refused access to item 133A. [23] The four communications in the second category are items 95, 134, 135 and 142 in the table of objections. The communication in item 95 is in an email from Mr Connole directed to Mr Bell and Mr Frazer. It is dated 2 November 2022. Its subject line is simply ‘Getting Nasty’. Despite its colourful title, the email provides instructions concerning anticipated or pending proceedings. Nothing in this communication is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect and so no question of waiver arises. I uphold the claim and the applicant is refused access to item 95. [24] Item 134 is part of an email chain. The chain is described above at [22]. The dominant purpose of which is to seek legal advice concerning anticipated proceedings. Nothing in this communication is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect and so no question of waiver arises. I uphold the claim and the applicant is refused access to item 134. -- 5 of 7 -- [2023] FWC 1617 6 [25] Item 135 is an email from Mr Connole to Mr Bell, copied to Mr Frazer. It is dated 11 November 2022. Its subject is described as ‘Alex WIP’. The respondents submit that the dominant purpose of the communication relates to legal advice, including instructions to Mr Connole’s lawyers. In the alternative the respondents assert that the dominant purpose was for the consideration of Mr Connole’s lawyers in anticipation of legal proceedings. [26] I disagree, on its face, the purpose of the email is Mr Connole instructing Mr Bell, the respondents’ accountant on what he should say on Sonoma’s behalf when talking to the applicant about his ongoing employment. One paragraph of the email does address Mr Frazer and asks that Mr Bell’s communication align with Mr Frazer’s “feedback”. I read this as an instruction that Mr Bell speak with Mr Frazer to ensure his communication with the applicant accords with legal advice. I do not regard that as the dominant purpose in the sense that it is the ruling, prevailing, paramount or most influential aspect of the communication. The communication is rather intended to provide Mr Bell with instructions to speak with the applicant and what should be said. Consequently, I do not uphold the claim and the applicant may have access to item 135. [27] Item 142 is an email from Mr Connole to Mr Bell, copied to Mr Frazer. It is dated 9 November 2022. Its subject is described as ‘Avramides’. It predates, but is in a similar vein to, item 142. The respondents submit that the dominant purpose of the communication is receiving legal advice, including instructions to Mr Connole’s lawyers about impending litigation. Again, in the alternative, the respondents assert that the dominant purpose was that the email was for the consideration of Mr Connole’s lawyers in anticipation of legal proceedings. [28] I disagree, on its face, the purpose of the email is to instruct Mr Bell to talk to the applicant about his ongoing employment. Mr Frazer is addressed in the email in the last line with a simple instruction to ‘sharpen the swords’. This may be an instruction in anticipation of litigation but I do not regard it as constituting the dominant purpose of the email in the sense that it is the ruling, prevailing, paramount or most influential aspect of the communication. Consequently, I do not uphold the claim and the applicant may have access to item 142. [29] The third category of communications consists of two text messages. The text messages were provided as print outs of screen shots from Mr Bell’s mobile phone. The print outs are identified in two groups, items 154 – 157 and 158 – 159. The respondents provided a less confusing version of the text messages which came from Mr Connole’s phone and demonstrated that Mr Frazer was also copied into the messages. I marked this version of the messages exhibit B. Exhibit B includes a message which appears to have been sent on 9 November at 3.02 AM. The applicant was not provided with the exhibit. [30] The contents of the messages from Mr Connole to Mr Bell and Mr Frazer in the exhibit relate to the communications made in emails around the same time (item 142 the email of 9 November 2022 and item 135 the email of 11 November 2022) which are dealt with above. The contents of the messages relate to the conversation Mr Bell was to have with the applicant about his ongoing employment. The respondents submit that the dominant purpose of the messages was to provide detailed instructions to Mr Frazer so that Mr Frazer could provide legal advice to Mr Connole. -- 6 of 7 -- [2023] FWC 1617 7 [31] I find that the messages had a similar purpose to the emails identified as items 135 and 142 which was to assist Mr Bell in his communications with the applicant. I see no request for legal advice. Reference is made to ‘going into battle’ which may be a reference to litigation, but I do not read this comment as providing a dominant purpose of seeking advice in anticipation of legal proceedings. I am not of the view that the dominant purpose of the communications in the text messages was for the provision of legal advice in the sense that it was the ruling, prevailing, paramount or most influential purpose of the communication. Consequently, I do not uphold the claim and the applicant may have access to items 154-157 and 158 and 159. The applicant should also have access to the exhibit. [32] I uphold the claims of privilege over items 52, 95, 121, 133A and 134. The applicant is denied access to these documents. I refuse the claims over items 135, 142 and 154 to 159 inclusive. The applicant is granted access to those documents and to the exhibit that contains them. [33] As the parties are represented I expect arrangements can be made to give effect to these rulings. Should either party require formal directions I grant leave to approach my chambers for that purpose. DEPUTY PRESIDENT Appearances: Mr Z Holmes for the applicant Ms A Rafter for the respondents Printed by authority of the Commonwealth Government Printer <PR763883> 1 Pearse v Viva Energy Refining Pty Ltd [2017] FWCFB 4701, at [14] 2 At [61] 3 Kirkman v DP World Melbourne Limited [2015] FWCFB 3995 at [23] -- 7 of 7 --