Egan and Minister for Home Affairs (Citizenship)

[2019] AATA 4953

Egan and Minister for Home Affairs (Citizenship) [2019] AATA 4953 (22 November 2019)

Division:GENERAL DIVISION

File Number:           2016/3271

Re:Finian Egan

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:22 November 2019

Place:Sydney

Pursuant to section 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the publication or disclosure, including to the Applicant, of the following documents is prohibited:

1. the documents produced by the Respondent under the summons issued on 8 November 2019 over which legal professional privilege is claimed, contained in the sealed envelope on the Tribunal file signed by The Hon. John Pascoe AC CVO, Deputy President, and dated 22 November 2019.

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The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – legal professional privilege – documents produced under summons – correspondence between party’s representatives and expert witness – whether privilege has been waived – documents found to be privileged

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 35

CASES

Australian Securities and Investments Commission v Southcorp Ltd (CAN 007 722 643) [2003] FCA 804

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

1. The Applicant in this case seeks access to documents provided to the Tribunal under summons issued on the Respondent, for which the Respondent has claimed legal professional privilege.

2. The documents in question are correspondence between the Respondent’s lawyers and Dr Stephen Coutts, Lecturer in Law at Dublin City University in Ireland, who has provided an expert report(s) which is in evidence in the proceedings before the Tribunal.

3. The Applicant has obviously not had the benefit of reading the correspondence but argues that the correspondence relates to issues which ultimately appear in Dr Coutts’ report and thus there is a waiver of privilege.

4. The Applicant referred the Tribunal to the case of Australian Securities and Investments Commission v Southcorp Ltd (CAN 007 722 643) [2003] FCA 804 in which Lindgren J of the Federal Court of Australia outlines a number of general principles in relation to legal professional privilege and the circumstances in which privilege is waived. His Honour outlines the following principles in relation to legal professional privilege at [21] (with citations omitted):

   (1) Ordinarily the confidential briefing or instructing by a prospective litigant’s lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege….

   (2) Copies of documents, whether the originals are privileged or not, where the copies were made for the purpose of forming part of confidential communications between the client’s lawyers and the expert witness, ordinarily attract the privilege….

5. He notes the following exceptions to those principles, upon which the Applicant relies:

   (4) Ordinarily disclosure of the expert’s report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents…

   (5) Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents…

6. For its part, the Respondent claims that the documentation falls squarely within the protection of legal professional privilege.

7. Having examined the correspondence in detail I am of the opinion that it falls within the protection of legal professional privilege and does not fall within any of the circumstances described by Lindgren J as bringing about a waiver of legal professional privilege. The exceptions referred to points (4) and (5) in paragraph [21] set out above, in my opinion, do not apply.

8. The correspondence is quite narrow and does not fall within the scope of Dr Coutts’ report(s). In fact the correspondence specifically contemplates that Dr Coutts’ advice in relation to the matters raised in the correspondence will not be canvassed in his report.

9. I am also satisfied that the correspondence was such as not to affect the contents of Dr Coutts’ report(s).

10. For these reasons I am of the opinion that legal professional privilege applies to the documents which are therefore confidential.

    Order

11. Pursuant to section 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the publication or disclosure, including to the Applicant, of the following documents is prohibited:

    1. the documents produced by the Respondent under the summons issued on 8 November 2019 over which legal professional privilege is claimed, contained in the sealed envelope on the Tribunal file signed by The Hon. John Pascoe AC CVO, Deputy President, and dated 22 November 2019.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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Associate

Dated: 22 November 2019

Date of hearing:	22 November 2019
Counsel for the Applicant:	Mr D McDonald-Norman
Advocate for the Applicant:	Mr D Tassone
Solicitors for the Applicant:	Buttar, Caldwell & Co
Advocate for the Respondent:	Ms B Griffin
Solicitors for the Respondent:	Australian Government Solicitor