AusNet Electricity Services Pty Ltd v Liesfield

AusNet Electricity Services Pty Ltd appealed a decision of an Associate Judge in the Federal Circuit Court, which found that the technical analysis documents prepared by the appellant were not subject to legal professional privilege. The appellant argued that these documents, which were produced shortly after the Victoria Police informed the appellant that they were investigating whether the appellant was responsible for the start of the Murrindindi fire during the Black Saturday bushfires, were privileged. The respondents in the appeal were the persons who brought the class action proceedings against the appellant. The appeal sought to overturn the Associate Judge’s findings that the documents were not privileged.

The key legal issues in the appeal were whether the Associate Judge’s findings of fact were correct and whether the appeal should be allowed. The court had to consider the dominant purpose of the sub-committee of the board of directors that instructed the production of the technical analysis documents. The court also had to consider whether there were any other possible purposes for the instruction that were not privileged. Furthermore, the court had to consider the inferences that could be drawn from the appellant’s failure to call evidence that was available to be called. The appeal hinged on the application of the test for appeals from findings of fact, which was considered in the context of the case Blatch v Archer.

The court found that the Associate Judge’s findings of fact were correct and dismissed the appeal. The court found that the dominant purpose of the sub-committee in instructing the production of the technical analysis documents was to prepare for the potential criminal prosecution, which was not a privileged purpose. The court also found that the appellant’s failure to call evidence that was available to be called could be used to draw inferences that the documents were not privileged. The court considered the test for appeals from findings of fact and found that the appeal did not meet the necessary standard. The appeal was dismissed.

The final orders of the court were that the appeal be dismissed, and the decision of the Associate Judge be upheld. The technical analysis documents were not subject to legal professional privilege, and the respondents were entitled to inspect and copy the documents. The appellant was ordered to pay the respondents’ costs of the appeal.