FEDERAL COURT OF AUSTRALIA
Australian Workers’ Union v Registered Organisations Commissioner [2019] FCA 309
File number:
VID 1151 of 2017
Judge:
WHEELAHAN J
Date of judgment:
7 March 2019
Catchwords:
PRIVILEGE – subpoenaed documents – claim for common law legal professional privilege - who is the holder of privilege in emails from government lawyers to a Minister’s office - whether waiver of privilege effected by evidence of witnesses during hearing – Commonwealth the holder of privilege – no waiver of privilege effected – application to uplift and inspect documents dismissed.
Legislation:
Acts Interpretation Act 1901 (Cth) s 19
Federal Court Rules 2011 (Cth) r 24.20(3)
Cases cited:
Bailey v Director-General, Department of Land and Water Conservation (2009) 74 NSWLR 333
Bullivant v Attorney-General for the State of Victoria [1901] AC 196
Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341
Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd [1972] Ch 553
Esso Australia Resources v Commissioner of Taxation (1999) 201 CLR 49
In re Grand Jury Subpoena Duces Tecum 112 F 3d 910 (1997)
In re Lemos [2018] Ch 81
Lake Cumberline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58
Minet v Morgan (1873) LR 8 Ch App 361
National Employers’ General Mutual Insurance Association Limited v Waind [1978] 1 NSWLR 372
Osland v Secretary, Department of Justice (2008) 234 CLR 275
R v Hickey [1997] EWCA Crim 743
R v Molloy [1997] 2 Cr App R 283
Secretary, Department of Justice v Osland (2007) 95 ALD 380
Shlosberg v Avonwick Holdings Ltd [2017] Ch 210
The Truculent [1952] P 1
Hogg, Monahan & Wright, Liability of the Crown (4th edition, Carswell)
Imwinkelreid E J, The New Wigmore, A Treatise on Evidence (Aspen Law and Business, New York, 2002)
Paulsen, Who “Owns” the Government’s Attorney-Client Privilege? (83 Minnesota Law Review 473)
Dates of hearing:
26, 27 February 2019
Registry:
Victoria
Division:
Fair Work Division
National Practice Area:
Employment & Industrial Relations
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- Case
- [2019] FCA 309
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was determining who held the privilege over the documents in question, which were emails from government lawyers to a Minister’s office. Additionally, the court needed to decide whether any waiver of privilege had occurred, considering the evidence presented by witnesses during the hearing. The court's analysis involved assessing whether the Commonwealth, as the holder of privilege, had effectively waived the privilege through the disclosure of the documents.
The court found that the Commonwealth was indeed the holder of the privilege over the documents. It ruled that no waiver of privilege had been effected by the evidence of witnesses during the hearing, as the disclosure of the documents did not constitute an intentional relinquishment of the privilege. Consequently, the court dismissed the application to uplift and inspect the documents, maintaining the protection of the privilege claimed. The court also set a schedule for the parties to file and serve submissions regarding costs, reserving its decision on the matter.
Orders
Orders of the court
1. Leave to the applicant to uplift and inspect the six documents that are the subject of the claim for privilege is refused.
2. Costs reserved.
3. The Secretary and the Minister file and serve submissions as to costs by 4.00 pm on 13 March 2019.
4. The applicant file and serve submissions in response by 4.00 pm on 20 March 2019.
5. The Secretary and the Minister file and serve submissions in reply by 4.00 pm on 22 March 2019.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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