Director of the Fair Work Building Industry Inspectorate v Buildpower Pty Ltd

The Director of the Fair Work Building Industry Inspectorate (the Director) brought proceedings against Buildpower Pty Ltd (Buildpower) in the Federal Court of Australia. The dispute concerned alleged contraventions of the *Building and Construction Industry (Improving Productivity) Act 2013* (Cth) (the Act) and the *Fair Work Act 2009* (Cth) (the FW Act). Specifically, the Director alleged that Buildpower had contravened section 34 of the Act by failing to comply with a notice issued under section 31 of the Act, and that this failure constituted a contravention of section 500 of the FW Act.

The central legal issue before the Court was whether Buildpower had a lawful excuse for failing to comply with the notice issued by the Director. The notice required Buildpower to provide certain documents and information relevant to an investigation into alleged contraventions of industrial instruments. Buildpower contended that it had a lawful excuse because the information sought was subject to legal professional privilege.

Judge Whelan considered the principles of legal professional privilege and the scope of the Director's investigative powers under the Act. His Honour found that while legal professional privilege is a fundamental common law right, it is not absolute and can be abrogated by clear statutory provision. The Court examined the language of section 31 of the Act, which requires a person to comply with a notice unless they have a lawful excuse. His Honour concluded that the Act did not contain provisions that clearly abrogated legal professional privilege. Therefore, Buildpower was entitled to claim legal professional privilege over the documents and information sought by the Director, and this constituted a lawful excuse for non-compliance with the notice.

The Court dismissed the Director's application for orders against Buildpower.