Farrell v Super Retail Group Limited (Adjournment Application)

FEDERAL COURT OF AUSTRALIA

Farrell v Super Retail Group Limited (Adjournment Application) [2024] FCA 1473

File number:

NSD 1009 of 2024

Judgment of:

LEE J  

Date of judgment:

12 December 2024  

Catchwords:

PRACTICE AND PROCEDURE – application to adjourn the hearing – where senior counsel seeks to withdraw from hearing of applicant’s specific performance claim – appropriate exercise of the discretion – application refused

Legislation:

Evidence Act 1995 (Cth) Pt 3.10, Div 1

Federal Court of Australia Act 1976 (Cth) Pt VB

Cases cited:

Farrell v Super Retail Group Limited (Cross-claim) [2024] FCA 1189

Division:

Fair Work

Registry:

New South Wales

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

17

Date of hearing:

12 December 2024

Counsel for the applicant: 

Mr S Prince SC with Mr P Moorhouse and Ms T Wong

Solicitors for the applicant:

Harmers Workplace Lawyers

Counsel for the first, second, third and fifth respondents:

Mr J Sheahan KC with Mr M Follett SC, Ms Z Hillman and Mr D Ward

Solicitors for the first, second, third and fifth respondents:

Allens  

Counsel for the fourth respondent:

Ms S Palaniappan

Solicitors for the fourth respondent:

Arnold Bloch Leibler

 

ORDERS

NSD 1009 of 2024

BETWEEN:

REBECCA FARRELL

Applicant

AND:

SUPER RETAIL GROUP LIMITED

First Respondent

ANTHONY HERAGHTY

Second Respondent

KEVIN FIGUEIREDO (and others named in the Schedule)

Third Respondent

ORDER MADE BY:	LEE J
DATE OF ORDER:	12 DECEMBER 2024

THE COURT ORDERS THAT:

1.The applicant’s application for an adjournment of the hearing be refused.   

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

REASONS FOR JUDGMENT
(Delivered ex tempore, revised from the transcript)

LEE J:

1. On the morning of the third day of this hearing, the applicant, Ms Farrell, has made an application for an adjournment.

2. The application arises in an unusual way.  

3. Yesterday, on 11 December 2024, an unredacted version of an email sent by Ms Jenee Smith, a solicitor of Harmers, to Mr Michael Harmer and Ms Emma Pritchard (among others) at 6:13pm on 6 May 2024 was marked as MFI-6 in the trial of Ms Farrell’s specific performance suit (and the same document was received into evidence today on the adjournment application (Ex A1)).

4. The email contains a file note prepared by Ms Smith, which records a conference call between various solicitors and senior and junior counsel acting for Ms Farrell and Ms Berczelly.

5. Exhibit A1 was originally discovered in redacted form because there was a claim for legal professional privilege over parts of the document. During the trial, it was recognised on behalf of those acting for Ms Farrell that there had been a loss of privilege in respect of some of the redactions, and the view then taken was that it would be appropriate, in all the circumstances, for there to be an express waiver of all claims for legal professional privilege in the document (or more relevantly, because we are dealing with the adduction of evidence, all claims of client legal…