Australian Workers' Union v Registered Organisations Commissioner

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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:

Attorney-General (NT) v Kearney (1985) 158 CLR 500

Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) (2011) 283 ALR 299

Bailey v Director-General, Department of Land and Water Conservation (2009) 74 NSWLR 333

Baker v Campbell (1983) 153 CLR 52

Baker v Evans (1987) 77 ALR 565

Benecke v National Australia Bank (1993) 35 NSWLR 110

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

Divall v Mifsud [2005] NSWCA 447

DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499

Esso Australia Resources v Commissioner of Taxation (1999) 201 CLR 49

Expense Reduction Analyst Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303

In re Grand Jury Subpoena Duces Tecum 112 F 3d 910 (1997)

In re Lemos [2018] Ch 81

Grant v Downs (1976) 135 CLR 674

Lake Cumberline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58

Mann v Carnell (1999) 201 CLR 1

Minet v Morgan (1873) LR 8 Ch App 361

National Employers’ General Mutual Insurance Association Limited v Waind [1978] 1 NSWLR 372

New South Wales Council for Civil Liberties Inc v Classification Review Board (No 1) (2006) 236 ALR 313

New South Wales v Betfair Pty Ltd (2009) 180 FCR 543

Osland v Secretary, Department of Justice (2008) 234 CLR 275

Pasini v Vanstone [1999] FCA 1271

R v Bunting (2002) 84 SASR 378

R v Dunwoody (2004) 212 ALR 103

R v Hickey [1997] EWCA Crim 743

R v Molloy [1997] 2 Cr App R 283

R v Petroulias (No 22) (2007) 213 FLR 293

Secretary, Department of Justice v Osland (2007) 95 ALD 380

Shlosberg v Avonwick Holdings Ltd [2017] Ch 210

The Truculent [1952] P 1

Waterford v Commonwealth (1987) 163 CLR 54

Waterford v Department of Treasury (1985) 5 FCR 76

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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Details
Case
[2019] FCA 309
Decision Date

CaseChat Overview and Summary

The Australian Workers' Union brought an application to the Federal Court of Australia against the Registered Organisations Commissioner, the Secretary to the Department of Education and Training, and the Minister for Education and Training. The dispute centres around a claim for common law legal professional privilege over six documents that were subpoenaed as part of a broader investigation into union activities. The applicant sought leave to inspect the documents to determine whether they were privileged.

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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