Cape York Land Council Aboriginal Corporation v Gersten [2004] ICQ 58 (2004) 177 QGIG 386

386 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 15 October, 2004 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of Industrial Commission Cape York Land Council Aboriginal Corporation AND Joseph Gersten (No. C68 of 2004) PRESIDENT HALL 30 September 2004 DECISION In the course of dealing with the matter of Gersten v Cape York Land Council Aboriginal Corporation (B2041 of 2003) the Commission has been called upon to make rulings about whether certain documents are discoverable. The Commission has yet to complete that task. However, because some rulings have issued, it is said by the respondent in those proceedings that it is possible to recognise that the Commission has misunderstood its task. It is contended that in those circumstances this Court should intervene to set the matter right. It is the effect of the definition of “decision” at Schedule 5 of the Industrial Relations Act 1999 to include “ruling” and of the definition of “person dissatisfied” at the same Schedule to include “a party to the proceedings” that an appeal under s. 341(1) is available against an interlocutory decision. That said, appeals against interlocutory decisions on matters of practice and procedure or the admissibility of evidence are to be discouraged. Such appeals are disruptive of the orderly conduct of the procedures of the Commission and require the Court to give greater emphasis to expedition than to reflection. The difficulty is that discovery is resisted (in part) because the documents are said to be cloaked “in legal professional privilege”. An incorrect but adverse ruling on that point could not be adequately redressed on a subsequent appeal. Additionally, there is the spectre of costs becoming disproportionate to the amount in issue. It was proper for the appeal to be brought and it was proper for the Court to hear it. -- 1 of 2 -- 15 October, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 387 In my view s. 320(2) has no application where a claim of legal professional privilege is raised. To begin with, it seems to me that the better view of the authorities is that the rules about legal professional privilege are rules of substantive law rather than rules of evidence. The consequence is that s. 320(2)(a) has no application. As to s. 320(2)(b) in a case such as this (pursuant to s. 276 – unfair contracts) which is substantially a proceeding inter partes, it is difficult to imagine a situation in which it would be proper for the Commission to exercise the discretion to crash through the public policy considerations upon which the doctrine of legal professional privilege is founded “to inform itself as it sees fit”. The documents in issue are the Executive Committee Minutes of 11 and 12 June 2003 and of 10 and 11 July 2003. Privilege is claimed also in respect of an “Executive Summary” which appears immediately prior to the minutes of the minutes of 11 June 2003. By way of background I should say that by 11 June 2003, Mr Gersten had (on one view of it) been dismissed, there had been proceedings on a dispute notification in the Commission and further proceedings here in prospect. The minutes of 11 June 2003 appear to show that those who had had the carriage of the matter appeared before the Committee to inform the Committee about what had occurred. The independent solicitor to the Committee appeared also to explain the significance of that which had occurred, to advise why certain steps had been taken and to advise on how the matter might progress. Various members of the Committee then asked questions of the solicitor and the solicitor gave the answer which the law would give to the questions. The minutes show also that there were some relatively robust exchanges. The solicitor was taxed about the legal consequences of changing tack, and pressed about whether his advice would have been different if he had based it on a different hypothesis. But there is nothing to suggest that at any point the solicitor joined issue or did anything other than give advice. The minutes show that after the solicitor left there was some discussion about the effect of the solicitor’s advice and that an agreement was reached to investigate certain matters of fact so that they might be put to the solicitor of a resumed meeting. Some of that occurred when the meeting resumed the following day. Other matters were raised at the meeting in July. Whilst the minutes of the meeting of 12 June and 10 – 11 July 2003 drift somewhat from the pending litigation and into a discussion about how systems might be improved to avoid such situations in the future, the discussions clearly spring from the solicitors view what had gone awry. In any event, as counsel for the Cape York Land Council Aboriginal Corporation contends, the common law rules are about legal professional privilege, not litigation professional privilege. The conclusion seems to me to be inescapable that the dominant purpose of the communications which have been recorded was to seek, give and assimilate legal advice. The complaint made about proceedings in the Commission is that the Commission has embarked on the process of examining the minutes in detail to determine which passages (if any) may be salvaged. Save as to a variety of passages to which no objection whatever is taken, I accept the submission of Counsel for the Cape York Land Council Aboriginal Corporation that the approach adopted by the Commission is a futility. There is no mandate to allow the discovery of such privileged material as one fairly can. One cannot distinguish between that which the solicitor said and that which he was told in seeking his advice. One cannot distinguish between advice about pending proceedings in the Commission, advice about proceedings in prospect and advice about the avoidance of litigation in the future. The best that one could hope to achieve on a line by line analysis is the identification of a sentence which appears not to bear upon the main purpose of the meeting which, of course will be unintelligible if read in isolation. And the minutes are so poorly drafted that one could have little confidence in a finding that a sentence was unrelated to the main purpose of the meeting was correct. In those circumstances on 29 September 2004 at or about 12 noon, I allowed the appeal, set aside all rulings made by the Commission on the matter of discovery of the documents previously described and made an order identifying the passages in the documents which were not the subject of legal professional privilege. (I say nothing about the admissibility of the materials in those documents nor about whether other objections to discovery may be open.) Dated 30 September 2004. D. R. HALL, President Appearances: Released: 30 September 2004 Mr R. Perry instructed by Miller Harris Solicitors for the Cape York Land Council Aboriginal Corporation. -- 2 of 2 --