Gibbins v Bayside Council

1. [1]

   HIS HONOUR: Alexander Gibbins was seriously injured on 4 December 2016 whilst riding a water slide at the Botany Aquatic Centre operated by Bayside Council. He commenced these proceedings claiming damages by statement of claim filed on 25 November 2019.

2. [2]

   Mr Gibbins issued a subpoena directed to the Council on 1 April 2020 seeking the production of certain documents. The Council originally responded to that subpoena by claiming lawyer and client privilege over some of the documents. In the events that have occurred, that claim is now limited to a single document described as a Report of Professional Engineers dated 28 March 2018. In short, the Council maintains that the report was commissioned following Mr Gibbins’ accident for the dominant purpose of the Council’s solicitor providing it with legal advice. Mr Gibbins disputes this assertion.

3. [3]

   In response to Mr Gibbins’ application, the Council relies upon three affidavits affirmed by its solicitor Richard Oldfield on 30 October 2020, 1 December 2020 and 8 December 2020. The relevant parts of those affidavits are as follows.

4. [4]

   In his first affidavit, Mr Oldfield said this:

5. [5]

   In his second affidavit, Mr Oldfield said this:

6. [6]

   In his third affidavit, Mr Oldfield said this:

7. [7]

   Annexure “A” referred to in paragraph 14 of the third affidavit is a letter from McCulloch & Buggy to The Manager, Claims Management Australia Pty Ltd dated 25 January 2017. The subject of the letter is “Bayside Council ats Alex Gibbons [sic]”. It includes the following:

8. [8]

   Annexure “B” referred to in paragraph 16 of the third affidavit is a letter from McCulloch & Buggy to Luke Murphy, c/- Nationwide Experts dated 24 February 2017. The subject of the letter is “Bayside Council ats Alex Gibbons [sic]”. It is in the following relevant terms:

9. [9]

   In accordance with the offer contained in paragraph 13 of Mr Oldfield’s 8 December 2020 affidavit, the letter dated 8 December 2016 that is referred to was produced to me for inspection. It is addressed to The Manager, Claims Management Australasia Pty Ltd. The subject of the letter is “Bayside Council – re: Alex Gibbons [sic]”. It is sufficient for present purposes to refer to the following parts of the letter:

Mr Gibbins’ submissions

1. [10]

   Mr Gibbins made the following submissions.

2. [11]

   The Council makes the claim for privilege and accepts that it must establish the factual matters necessary to found the claim. In order to maintain that claim, the Council must establish that the Engineer’s Report was prepared for the dominant purpose of the Council’s solicitor providing legal advice to the Council. Whether a purpose is the dominant purpose is a matter to be determined objectively, but the subjective purpose will always be relevant and may be decisive: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67 at [172]. If the decision to bring the document into existence would have been made irrespective of any intention to obtain professional legal services, it will be doubtful that the purpose of obtaining those services could be regarded as the dominant purpose for its preparation: Sparnon v Apand Pty Ltd (1996) 68 FCR 322; (1996) 138 ALR 735 at 327 per Branson J.

3. [12]

   The evidence about the creation of the Engineer’s Report is contained in paragraphs 23 to 28 of Mr Oldfield’s 30 October 2020 affidavit quoted earlier. Mr Gibbins emphasised that it is clear from this material that Mr Oldfield spoke with the Council’s claims manager on 17 January 2017, before he had received any communication from Mr Gibbins’ solicitor, which did not occur until 1 March 2017. During that conversation, Mr Oldfield recommended that “a suitable expert be retained to inspect the slides”. The references to slides must have been a reference to the green slide and the white slide. Mr Oldfield then forwarded his letter to the engineer on 24 February 2017, again before he had been contacted by Mr Gibbins’ solicitor.

4. [13]

   In further support of his contention that the Council has not satisfied the dominant purpose test, he referred to uncontested facts deposed to by his solicitor Courtney Poulden in his affidavit of 3 December 2020. Documents annexed to that affidavit indicate the following matters.

5. [14]

   On 5 December 2016, Sandy Davies, the Centre's Senior Pool Supervisor, thought that the Centre needed “to have a height/weight limit for the green slide or and only let tall/heavy people on the white slide". The slide instructions were prepared on that day and imposed a maximum height restriction of 170cm. On the same day, Stuart Dutton of the Council emailed Mr Davies saying, "Please close the slide until further notice. Get the appropriate body to come and do a safety inspection".

6. [15]

   On 8 December 2016, Doris Lum from the Council emailed various recipients informing them that in "response to this recent incident, it would be imperative that Council approach a suitably qualified consultant to provide guidance on the exact required flow rates for the two slides and whether height, weight and age restrictions be considered for riders of both slides".

7. [16]

   On that day, Bobbi Mayne, the Council’s Acting Manager Risk and Audit, emailed Ms Lum asking, "has the slide been assessed in the past on its design and type of users etc by any specific industry leadings 'Water Slide Experts'? Lastly, can I please confirm that the slide’s operation is still closed pending the investigation?" Also on 8 December 2016, Sandy Davies emailed Mr Mayne saying, “I would like to have another waterslide leading expert have a look and do a report, I was thinking of ringing Wet and Wild Jambaroo to see if they have a company that would do this". On 23 December 2016, Mr Mayne wrote to Ms Davies informing her that “the Green Slide is to remain out of operation until the outcome of the condition and operation assessment is known".

8. [17]

   On 1 March 2017, the Council’s Manager Recreation and Community Services emailed Ms Davies informing her that "yesterday at the executive meeting they agreed that the continued use of the water slide was too high and have made a decision to close off both slides".

9. [18]

   The minutes of an Executive Committee Meeting of the Council dated 16 January 2018 include the following:

10. [19]

    The report referred to in the minutes was the Engineer's Report. It is described in the Council’s own document as a "detailed assessment and audit condition report on the safety of the slides". There is no mention of Mr Gibbins’ accident. The Engineer's Report is said to be concerned with both slides, not just the Green Slide.

11. [20]

    On 9 February 2018, Christine Stamper, the Council’s Communications Co-Ordinator, informed Ben James of news.com.au that, "at this time no official decision has been made regarding the future of the slides".

12. [21]

    An email to Mayor Sarinovski from Vincenzo Carrabs, the Council’s Head of Communications and Events dated 19 February 2018, included a media article which reported, "Botany Pool Waterslides to be Demolished. Botany Aquatic Centre's much-loved water slides will be demolished with Council saying they are too dangerous".

13. [22]

    The minutes of an Executive Committee Meeting dated 8 March 2018 include the following:

14. [23]

    On 26 March 2018, Stuart McDougall, the Council’s Project Manager, Major Projects, sent an email to info@waterslide.net informing, "I have been tasked to demolish the water slide at Botany Aquatic Centre".

15. [24]

    Mr Gibbins submitted that these documents reveal that the Council was concerned about the ongoing safety of both slides at the Centre. Both slides were closed in early 2017. The Engineer's Report was discussed at the Executive Committee meeting on 16 January 2018. A decision was made to demolish both slides in February 2018. The Engineer's Report was described by the Council at its Executive Committee Meeting dated 16 January 2018 as a "detailed assessment and audit condition report on the safety of the slides".

16. [25]

    Mr Gibbins maintained in these events that the surrounding facts and circumstances strongly suggest that the dominant purpose of the preparation of the Engineer's Report was to consider the ongoing safety of both slides at the Centre. The Council’s solicitor was instructed "to act on behalf of Council in respect of the Applicant's incident". There is no suggestion that Mr Oldfield was instructed to provide general legal advice or professional legal services about the safety of the slides and their ongoing use.

17. [26]

    Mr Gibbins contended that the surrounding facts and circumstances suggest that the Engineer's Report would have been brought into existence, irrespective of any intention to obtain legal advice from the Council’s solicitor about Mr Gibbins’ accident. The Council has adduced no evidence that that was not the case. The Council could easily have adduced evidence of its subjective intention in requesting the preparation of the Engineer's Report. It has not done so. Mr Gibbins submitted that the Council’s failure to adduce evidence of its subjective intention, coupled with the objective evidence, is “telling”.

The Council’s submissions

1. [27]

   The Council responded as follows.

2. [28]

   The Council maintained that Mr Oldfield’s evidence at paragraphs [23] to [28] establishes that the Engineer’s Report was “obtained on his recommendation and subsequent instructions” from the Council and Claims Management Australasia Pty Ltd, following his retainer by them on 8 December 2016 “in respect of the incident the subject of this litigation on 4 December 2016”. It was submitted that the report was “prepared and obtained at the instigation of Mr Oldfield…for the dominant purpose of this litigation” and/or to provide it to Mr Oldfield “for the purpose of legal advice”.

3. [29]

   The Council emphasised five propositions.

4. [30]

   First, the advice of 25 January 2017 and the letter of instruction were clear and determinative of how the Engineers Report came into existence.

5. [31]

   Secondly, Mr Oldfield’s subjective intention showed that it was “overwhelmingly” the case that the document was prepared for the purpose of both advice and litigation generated by Mr Gibbins’ accident.

6. [32]

   Thirdly, the final version of the Engineers Report, which I have inspected, makes it plain that the dominant purpose was either the giving of legal advice or in anticipation of legal proceedings.

7. [33]

   Fourthly, the Engineers Report would not have come into existence but for the involvement of Mr Oldfield. The Council maintained that it was not generated by the Council or the independent internal decision of officers of the Council.

8. [34]

   Finally, the Council submitted that it was quite clear that the present proceedings were anticipated and that they led to the production of both the draft and final versions of the report.

Legislation

1. [35]

   Sections 118 and 119 of the Evidence Act 1995 provide as follows:

“Dominant purpose”

1. [36]

   The issue upon which the current contest is centred is whether the Engineers Report was brought in to existence for any of the dominant purposes to which either s 118 or s 119 of the Evidence Act refers.

2. [37]

   The question of whether a document amounting to a communication has been brought into existence for a dominant purpose invites an examination of that purpose and an inquiry about whether there are any other purposes that may be more dominant than the alleged one. This is a question of fact: see Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25 at 66 and 78; Hartogen Energy Ltd v Australian Gaslight Co (1992) 36 FCR 557 at 568.

3. [38]

   The use of the word “purpose” is said to invite an inquiry into a state of mind of a creator at the time the document was brought into existence or the communication was made.

4. [39]

   What is required is an objective view of all of the evidence, taking into account the author’s intention and the person or authority under whose direction it was procured. If the decision to bring the document or the communication into existence would have been made irrespective of any intention to obtain professional legal services and/or for its use in litigation, then it is doubtful whether “the purpose of obtaining professional legal services could be regarded as the dominant purpose for the making of the document”: see Sparnon v Apand at 328; Grant v Downs (1976) 135 CLR 674; [1976] HCA 63 at 688.

5. [40]

   Young J referred to and applied these considerations in AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571 at [106]-[110] as follows:

Consideration

1. [41]

   Doing the best I can, it seems to me that the Engineers Report was brought into existence for at least one of two purposes. The first purpose was in order to permit the Council to form a view about what if any action should be taken generally with respect to the Botany Aquatic Centre’s waterslides, in particular about whether or not it should be demolished: that was a decision that was generated by Mr Gibbins’ accident, but only as the (then) latest example of a large series of incidents and accidents involving many other patrons using the Centre. The other purpose was in order that the Council’s legal advisers could provide legal advice, either generally or with respect to Mr Gibbins’ accident. In either case, whatever might have been the relevant purpose, neither was dominant. This is a case in which I consider that the Engineers Report is not privileged from production. Its creation was not the result predominantly of one of the purposes contemplated by the Evidence Act and there was another equally important purpose. In forming that view, I have had regard to the following.

2. [42]

   The communications between or among Council staff with responsibilities in the areas of the Centre management generally and safety in particular make it reasonably apparent that the ultimate fate of the waterslides had become a matter of considerable importance, and one that had attracted local public interest. The discussions at Council level were not limited to, and at one level were not particularly concerned with, the confined issue of legal liability with respect to Mr Gibbins’ accident or the need to take steps to obtain legal advice about it and prepare for possible litigation as a result. Even if they were, the production of the Engineers Report was not the result of only that concern. One purpose for the creation of the Engineers Report was to obtain legal advice, but there was another equally important purpose.

3. [43]

   In a related sense, I consider that the decision to bring the document into existence would have been made irrespective of any intention to obtain professional legal services. For example, on the day immediately following Mr Gibbins’ accident, the Centre’s Senior Pool Supervisor was advised by Mr Dutton to “close the slide until further notice” and to “get the appropriate body to come and do a safety inspection”. Within three days thereafter, Ms Lum sent an email to various recipients indicating that “it would be imperative that Council approach a suitably qualified consultant to provide guidance on” various integers thought to be possibly relevant to accidents on the slides. Others in the Council expressed similar views. On the same day, Mr Davies emailed Mr Mayne effectively calling for a waterslide expert “to have a look and do a report”.

4. [44]

   The fact that Mr Oldfield sought to retain an expert on 8 December 2016 seems to me to be unremarkable. An investigation of the factual circumstances relating to Mr Gibbins’ accident by a solicitor instructed by the Council’s public liability insurer does not mean that the report that was ultimately produced was prepared only or for the dominant purpose of legal advice on that topic. The Council was concerned to obtain a report more generally concerning the wider question of the continued viability of the waterslides. So much is unambiguously apparent from the terms of the report, some of which should be noted:

5. [45]

   It cannot in my view be said that one only of the competing purposes for the creation of the Engineers Report is clearly dominant.

Conclusion

1. [46]

   It follows that the Engineers Report is not privileged from production and should be produced to Mr Gibbins or his lawyers within seven days.