Clarke v Dixie Cummings Enterprises Pty Ltd - [2013] FCA 987

FEDERAL COURT OF AUSTRALIA
Clarke v Dixie Cummings Enterprises Pty Ltd [2013] FCA 987

Citation: Clarke v Dixie Cummings Enterprises Pty Ltd
[2013] FCA 987

Parties: SHARON CLARKE v DIXIE CUMMINGS ENTERPRISES PTY LTD (A.C.N. 006 530 749) AS TRUSTEE FOR THE DIXIE CUMMINGS ENTERPRISES UNIT TRUST

File number: VID 185 of 2013

Judge: JESSUP J

Date of judgment: 24 September 2013

Catchwords: PRACTICE AND PROCEDURE – application for review of decision of Registrar under s 35A of Federal Court of Australia Act 1976 (Cth) – privileged document mistakenly included in index of documents provided by respondent to applicant – claim of privilege by respondents upheld by Registrar – costs awarded against applicant – whether production of emails attached to privileged document sufficient to amount to waiver of privilege – whether respondent entitled to recover costs under s 570(2) of Fair Work Act 2009 (Cth)

Legislation: Fair Work Act 2009 (Cth), s 570.
Federal Court of Australia Act 1976 (Cth), s 35A.

Cases cited: Commissioner of Taxation v Rio Tinto Ltd
[2006] FCAFC 86
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499

Date of hearing: 24 September 2013

Place: Melbourne

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 15

Counsel for the Applicant: Ms G Jardine

Solicitor for the Applicant: McDonald Murholme

Counsel for the Respondent: Ms C Serpell

Solicitor for the Respondent: Mason Sier Turnbull

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 185 of 2013

BETWEEN:
SHARON CLARKE
Applicant

AND:
DIXIE CUMMINGS ENTERPRISES PTY LTD (A.C.N. 006 530 749) AS TRUSTEE FOR THE DIXIE CUMMINGS ENTERPRISES UNIT TRUST
Respondent

JUDGE:

JESSUP J

DATE OF ORDER:

24 SEPTEMBER 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.Order 5 made by the Deputy District Registrar on 27 August 2013 be set aside.
2.Otherwise the applicant’s Interlocutory Application filed 17 September 2013 be dismissed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 185 of 2013

BETWEEN:
SHARON CLARKE
Applicant

AND:
DIXIE CUMMINGS ENTERPRISES PTY LTD (A.C.N. 006 530 749) AS TRUSTEE FOR THE DIXIE CUMMINGS ENTERPRISES UNIT TRUST
Respondent

JUDGE:

JESSUP J

DATE:

24 SEPTEMBER 2013

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

This is an application under s 35A of the Federal Court of Australia Act 1976 (Cth) for the review of a decision of a Deputy District Registrar of the court made on 27 August 2013 in which the respondent’s claim to resist the production of a document upon the ground of legal professional privilege was upheld, and in which the Registrar ordered the applicant to pay costs incurred by the respondent in connection with that claim after 16 August 2013.
The starting point for the determination of the privilege controversy was an order made by the court on 28 June 2013 in the following terms:
The Respondent produce to the Applicant documents requested. The requested documents should be produced without…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCA 987
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Sharon Clarke, the applicant, brought a case against Dixie Cummings Enterprises Pty Ltd, the respondent, to challenge the decision of the Deputy District Registrar concerning the production of documents in relation to a Fair Work Act matter. The core dispute centred on the production of a privileged document mistakenly included in the index of documents provided by the respondent to the applicant. The Registrar had upheld the respondent's claim of privilege and awarded costs against the applicant. The applicant argued that the production of emails attached to the privileged document constituted a waiver of the privilege, while the respondent sought to recover costs under the Fair Work Act.

The court had to determine whether the production of emails attached to the privileged document amounted to a waiver of privilege and whether the respondent was entitled to recover costs under section 570(2) of the Fair Work Act. In addressing these issues, the court noted that the emails produced were unremarkable and did not necessarily lay open to scrutiny the privileged statement. Consequently, the court dismissed the substantive aspect of the application for review. However, the court found that the Deputy District Registrar had overlooked section 570 of the Fair Work Act, which generally prohibits ordering one party to pay another's costs unless certain exceptions apply. The court was not satisfied that any of the exceptions in section 570(2) of the Act applied in this case, and therefore set aside the costs order made by the Deputy District Registrar and made no costs order in relation to the present review.

The court's decision highlights the importance of strictly adhering to the provisions of the Fair Work Act when determining costs in proceedings related to the Act. The court emphasised that the exceptions in section 570(2) require a higher level of criticism or disapprobation of the losing party's case than simply having a weak or unsuccessful argument. In this instance, the court found that the applicant's resistance to the respondent's privilege claim was without substance but did not merit the imposition of costs under the Act. Consequently, the court set aside the costs order and dismissed the application for review.

Orders