This edition covers significant updates including the Third Edition of the Impairment Assessment Guidelines and recent changes to the South Australian Employment Tribunal Practice Directions. 

We also review key case law outcomes such as Duryea v Electrolux Home Products and Hamilton v RTWSA. 

Additionally we share highlights from the 2025 SISA Awards and introduce our new Special Counsel Karmilla Chenia.

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Notably, Principal Tahlia Melino has again been recognised as a recommended lawyer in the jurisdiction. Known for her deep sector knowledge and relentless pursuit of practical, risk-managed results, Tahlia’s reputation continues to set the benchmark for the profession in workers compensation law.

The Doyle’s Guide rankings are compiled through peer feedback from plaintiff and defendant insurance lawyers and barristers throughout South Australia, reflecting industry-wide respect for the firm’s capabilities and client service.

At Melino Legal, the team remains dedicated to supporting employers and insurers with timely, clear, and effective legal solutions. This ongoing recognition underscores the trust clients place in the firm and the skill with which the team navigates South Australia’s workers compensation landscape.

The SISA Awards, presented by Self Insurers of South Australia, recognise excellence and continuous improvement in workplace health, safety, and injury management. These awards showcase the commitment of self-insured employers to creating safer, healthier workplaces across the state.

Among the categories is the prestigious Self Insured Employer of the Year Award, which celebrates organisations that demonstrate exceptional leadership, employee engagement, and innovative approaches to injury prevention and wellbeing. Other categories recognise achievements in innovation, prevention, and health programs that positively impact workers’ lives.

At Melino Legal, we are committed to supporting initiatives that reflect the values of safety, wellbeing, and continuous improvement in the workplace. We look forward to celebrating the remarkable contributions of South Australian employers at this year’s awards.

Hutt St Centre provides vital services, from warm meals and showers to medical care, counselling, and pathways to housing and employment. Their mission is to walk alongside people as they rebuild their lives and find a place of safety and belonging.

We are honoured to contribute to their work and encourage our community to support them in any way possible. Together, we can help end homelessness and bring hope to those who need it most.

Find out more about Hutt St Centre

This edition covers significant changes and case law, designed to help employers and insurers navigate the evolving legal landscape.

• Important updates on the upcoming Third Edition of the Impairment Assessment Guidelines.
• Key takeaways from Smout v RTWSA regarding impairment assessment methodology.
• Jurisdictional insights from Mujakovic v Helping Hand Aged Care Inc.
• Discussion on the refusal to produce surveillance footage in Paech (nee Longford) v Dept for Education.
• Causation principles in work injury cases, highlighted in Brown v RTWSA.

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We are proud to contribute to their mission of offering care and comfort during a vulnerable time in a child’s life. At Melino Legal, supporting causes like this is just one of the ways we strive to build stronger, more compassionate communities.

Stay informed on the latest rulings, legislative changes, and expert insights to ensure compliance and best practices in your workplace.

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Via an Application for Directions, the respondent sought production of disclosed documents to which the applicant claimed legal professional privilege over. The documents included various emails communications between the applicant, the applicant’s solicitors and two accountants (Ms Hayley Neumann and Mr James Castley), regarding the preparation of Ms Neumann’s Affidavits. 

Submissions

The respondent first argued that the Affidavits referred to in the communications constituted expert opinion and were therefore not the subject of legal professional privilege, as also the rule for expert medical reports (Rule 74.4. of the Uniform Civil Rules 2020). The respondent alternatively argued that the documents were ‘impliedly waived.’ It suggested that the applicant’s assertion that the Affidavits were of Ms Neumann was inconsistent with the maintenance of confidentiality because communications of this nature were also occurring with Mr Castley. 

In relation to the respondent’s first argument, the applicant submitted that the communications were privileged ‘for the purpose of existing or contemplated litigation’ and that the Affidavits did not constitute expert opinion, but rather presented evidence of fact. Alternatively, the applicant submitted that ‘rules pertaining to expert reports do not require production of documents.’ Further, the applicant identified that Rule 74.4 of the Uniform Civil Rules 2020, as referenced by the respondent, did not apply due to the operation of rules 65-71 of the South Australian Employment Tribunal Rules 2024. The applicant denied any implied waiver and asserted that she did not fail to maintain confidentiality.

Consideration

Her Honour Deputy President Judge Kelly reiterated that ‘communications are entitled to privilege where they are made in contemplation of existing or anticipated litigation and for the purpose of use in that litigation’ and that this extends to correspondence between solicitors and third parties. Her Honour identified that all of the communications occurred after the period in which legal proceedings were initiated, and appeared to relate to the preparation of two Affidavits of an accountant and hence were entitled to privilege.  

In relation to expert evidence, her Honour did not accept that the Affidavit in question constituted an expert opinion and, consequently, that Rule 74.4 could not apply anyway. 

In relation to the burden of proof, her Honour referenced the comments of Gillard J in Australian Hospital Care Pty Ltd v Duggan (No 2):-

In my opinion once the client swears the affidavit of documents claiming legal professional privilege in a way which leads the court to the conclusion that the claim is properly made, then the prima facie position is that the legal adviser was acting independently at the relevant time.

Following that presumption, the onus is then cast on the respondent to dispute the existence of legal professional privilege. Kelly DPJ held that the applicant had ‘established the prima facie presumption that the documents are privileged’ and that the respondent failed to prove that this had been waived.

Her Honour emphasised that a waiver of legal professional privilege may be express or implied, referencing Mann v Carnell;-

Implied waiver of privilege reflects a judgement that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. That judgement is to be made in context and in the circumstances of the case.

Her Honour did not accept that potential input of Mr Castley’s in communications surrounding Ms Neumann’s Affidavits constituted a waiver of privilege by the applicant. Kelly DPJ identified the possibility that both Ms Neumann and Mr Castley were aware of the facts being deposed to, and that ‘it would be a waste of the court’s time for both to give evidence about the same matters.’  Her Honour did not view the applicant’s conduct as inconsistent with the maintenance of confidentiality. She takes the view that ‘the respondent seems to be making a general submission of unfairness based on their suspicions.’
Disclaimer: this does not constitute legal advice and we do not represent it to be legal advice. If you seek advice, please contact us on 7093 2350 or mail@melinolegal.com.au

Key Changes:

• Anti-Discrimination: Enhanced protections to ensure fair treatment.
• Flexible Work Requests: Employers must respond within 21 days, genuinely consider requests, and provide clear business grounds for any refusals.

Compliance is critical, as non-adherence may lead to legal action. At Melino Legal, we provide expert guidance to help businesses navigate these updates and maintain compliant, supportive workplaces.

Australia’s general insurance market is expected to grow to AUD98 billion by 2025, driven by increased demand for coverage against natural disasters. However, this growth comes with rising premiums and affordability challenges, making it essential for businesses to ensure their policies meet emerging risks and regulatory requirements.

At Melino Legal, we specialise in navigating these complexities, offering expert advice to protect your business in a shifting insurance environment. Be proactive and ensure your coverage is robust.