Carney v Excelsia College
[2024] FedCFamC2G 1383
•12 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carney v Excelsia College [2024] FedCFamC2G 1383
File number: SYG 256 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 12 December 2024 Catchwords: CONSUMER LAW - alleged misleading and deceptive conduct - subpoena compliance at issue - whether documents sought by subpoena subject to legal professional privilege – legal professional privilege engaged. Legislation: Fair Work Act 2009 (Cth)
Competition and Consumer Act 2010 (Cth) sch 2 Australian Consumer Law s 236.
Cases cited: Trade Practices Commission v Sterling [1978] 36 FLR 244 Division: Division 2 General Federal Law Number of paragraphs: 13 Date of hearing: 15 November 2024 Place: Parramatta Counsel for the Applicant: Ms Bateman Solicitor for the First Respondent: Mr Kohn Counsel for the Second Respondent: Mr O’Connor ORDERS
SYG 256 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FRANCIS LIAM CARNEY
Applicant
AND: EXCELSIA COLLEGE (ACN 110 629 435)
First Respondent
SYDNEY CATHOLIC SCHOOLS LIMITED (ACN 619 137 343) TRADING AS
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
12 DECEMBER 2024
THE COURT ORDERS THAT:
1.The Second Respondents claim for legal professional privilege over the subpoenaed documents produced to the Court is upheld.
2.The subpoenaed documents of the Second Respondent can be produced subject to the second respondent making relevant redactions in relation to those parts where legal professional privilege does apply.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
The applicant has commenced proceedings alleging misleading and deceptive conduct that if the applicant completed a graduate certificate with the respondent and then enrolled in a Masters of Teaching (Primary) qualification, the respondent was able to provide the necessary tuition or recognition of prior learning (RPL) grants to the applicant for the applicant to be able to complete or be granted RPL for four further units of the Masters of Teaching qualification course program, including facilitation of the completion of a practicum at a school in first semester 2022. This would enable the applicant to obtain conditional teacher accreditation from the New South Wales Education Standards Authority to teach in primary schools in New South Wales by mid 2022.
The applicant alleges the first respondent failed to facilitate the applicant’s completion of a unit in the course, being a practicum at a New South Wales primary school in the first semester of 2022. The applicant seeks damages in the amount of $4,875.00 being the first respondent’s tuition fees. The applicant further seeks loss of earnings of the applicant of $73,373.00 being one year of earnings at the band one New South Wales salary in accordance with relevant Teachers Award, and damages pursuant to s 236 of the Australian Consumer Law of $78,612.00, together with interest and costs.
Issues in relation to Subpoenas and Legal Professional Privilege
Following commencement of the proceedings, the applicant has issued a significant number of subpoenas. Excelsia College, being the first respondent, has indicated to the Court it has fully complied with the subpoena issued to it, and all documents, except as follows, have been produced. The documents which have not been produced; record communications between an in-house lawyer employed by the second respondent, Sydney Catholic Schools Ltd, and an employee of the first respondent which relate to the applicant.
The first respondent indicates they have no objection to the applicant seeing those documents, however felt obliged to raise the issue of legal professional privilege, as the documents appear to record a confidential communication between the second respondent and another person for the dominant purpose of the second respondent being provided with professional legal services relating to the proceedings in which it is a party.
The second respondent, who is now been joined to the application, seeks to assert legal professional privilege in relation to documents that have now been produced to the Court in a sealed envelope. The Court has inspected the documents contained within that envelope.
THE APPLICANT’S SUBMISSIONS
The applicant has filed written submissions. He contends the documents do not meet the threshold for legal professional privilege. He also complains about what he contends has been a non-compliance by the respondents with the subpoenas issued on them.
Firstly, in relation to any non-compliance, the Court specifically inquired of the respondents if they have any further documents to produce. Except as to the documents over which privilege is asserted the answer was ‘No’. Counsel for the applicant was asked if she accepted these assurances. She indicated she did. If the applicant has issues with any misrepresentation as to compliance, these should be taken up with the Legal Services Commissioner. The Court sees no good purpose of pursuing that issue further within these proceedings. It is a collateral issue.
The applicant has further raised an issue of a breach of privacy by Excelsia College in sharing information without the applicant’s consent. If this is the case, the applicant should pursue his remedies with the appropriate body.
The Law in Relation to Legal Professional Privilege
The law in relation to legal professional privilege is well known. In Trade Practices Commission v Sterling [1978] 36 FLR 244 at 245, Lockhart J set out the various classes of documents to which legal professional privilege will extend. They are as follows (citations omitted):
a.any communication between a party and his professional legal adviser if it is confidential that made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding the communications made through the agents of the party and the solicitor or the agent of either of them;
b.any document prepared with a view to its being used as a communication of this class, although not in fact so used;
c.communications between the various legal advisors of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance;
d.Notes, memoranda, minutes or other documents made by the client or offices of the client or the legal advise of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal advisor to enable him to advise the client or conduct litigation on his behalf;
e.communications and documents passing between the parties solicitor and third party, if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in heat or information which may result in the obtaining of such evidence;
f.communications passing between the party and third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the parties solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action;
g.knowledge, information and belief the client derived from his privilege communications made to him by his solicitor or his agent.
The Documents
Having inspected the documents, they appear to be communications initiated by a lawyer in the employ of the second respondent, addressed to an employee of the first respondent, seeking information which might be used by the second respondent in defence of proceedings that had been commenced against the second respondent by the applicant, alleging he was an employee of the second respondent and alleging breaches of the general protection provisions of the Fair Work Act 2009 (Cth).
The Court notes that the request for information does not relate to proceedings that are currently before this Court. However, the Court is satisfied that the documents themselves, based on their contents, support the second respondent’s claim for legal professional privilege and that the claim of legal professional privilege is accordingly engaged.
The Court notes that the documents contain in addition, four emails comprising internal communications between the first respondent’s representatives only. The second respondent does not make a claim to legal professional privilege under those emails, noting however they form part of the chain of emails over which the second respondent does claim privilege. In these circumstances, noting a concession by the second respondent, the Court is satisfied the documents can be produced subject to the second respondent making relevant redactions in relation to those parts where legal professional privilege does apply.
Noting that the Court has already dismissed the applications in a case filed by the applicant in relation to the first and second respondents, the Court will hear from the parties in relation to whether or not costs should be payable by the applicant, and in particular, the costs of third parties to the litigation.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 12 December 2024
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