Federal Court upholds legal professional privilege in workplace discrimination case

Case involves allegations of discrimination against National Australia Bank

Federal Court upholds legal professional privilege in workplace discrimination case

The federal court has ruled in favour of maintaining legal professional privilege over a critical document in a discrimination case by an employee against her employer.

The dispute in Diawara v National Australia Bank Limited [2023] FCA 1048 involved a claim for legal professional privilege in respect of an investigation report titled "National Australia Bank Limited Corporate and Institutional Banking Markets Team External Review Report," created by Wise Workplace Solutions (WWS).

The applicant, Dikele Diawara, sought access to the report concerning an ongoing sex and race discrimination case that she filed against her employer, the respondent National Australia Bank (NAB).  

NAB provided the report to the court in a sealed envelope marked "confidential and privileged" and requested that the court refrain from granting access until it determined the privilege claim. The core issue revolved around whether the cultural review report should be subject to legal professional privilege, which would protect it from disclosure.

The federal court addressed the legal principles surrounding claims for legal professional privilege. Legal professional privilege protects a person from being compelled to produce documents or give information that would reveal communications between a client and their lawyer, made for the dominant purpose of obtaining or providing legal advice or providing legal services, including representation in pending or anticipated legal proceedings.

The court explained that the document’s "dominant purpose" brings within the scope of the privilege a document brought into existence for a client receiving professional legal services, even if an ancillary or subsidiary use of the document was contemplated at the time. The starting point when applying the dominant purpose test is to ask what is the document's intended use that accounted for it being brought into existence.

The court stressed that the focus is on the purpose of the person who created the document, or who, if not its author, had the authority to, and did, procure its creation. The court noted that the party claiming privilege has to prove the facts necessary to establish the privilege, including the communications or documents made or created for the required dominant purpose.

In this case, NAB argued that its legal representative, Herbert Smith Freehills (HSF), commissioned the Cultural Review Report to provide legal advice on the discrimination case. The court examined the evidence, including a letter of engagement between HSF and WWS, and found that the report's dominant purpose was to assist HSF in providing legal advice to NAB.

The applicant argued that the report had another purpose, which was a factual investigation into other matters. However, the court determined that the dominant purpose was still the provision of legal advice.

The court noted that the cultural review report was marked "STRICTLY CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE," which was typical of what might occur if the document was prepared for a privileged purpose. It reflected on its face that it was confidential. Consequently, the court said that, once the document was in the hands of any person at HSF or the respondent, they would treat it confidentially. There was an obligation of confidentiality.

The court rejected the applicant's argument that there had been a waiver of privilege. The applicant contended that NAB had impliedly waived privilege by disclosing the report's findings to the bank's employees in an email from David Gall, NAB's group executive for corporate and institutional banking. The court examined the email and found it did not amount to a waiver of privilege. The court said that the clear and stated purpose of the email appeared to be to provide a group of the respondent's staff with an update on the steps taken "to fully understand the culture of the team" and an update on the progress of the substantive proceedings. Also, there was no express reference to the cultural review report.

The court ultimately ruled that the cultural review report was indeed subject to legal professional privilege and that there had been no implied waiver of privilege. As a result, it excused NAB from producing the document in response to the notice to produce.

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