Gaynor v Chief of the Defence Force (No 2)

The matter before the Federal Court of Australia was between Gaynor, the applicant, and the Chief of the Defence Force, the respondent, regarding the disclosure of certain documents. The central issue was whether the documents in question were protected by legal professional privilege. The applicant sought to compel the respondent to disclose certain documents for use in the proceedings, while the respondent argued that the documents were privileged and should not be disclosed.

The court had to determine whether the respondent had met the burden of proving that the documents were privileged. The court noted that the onus is on the party claiming privilege to provide evidence to support the claim. The respondent provided affidavit evidence from MAJ Guilfoyle, who stated that the documents were subject to client legal privilege. However, the court found that the affidavit did not provide sufficient evidence to establish the primary facts upon which the claim of privilege was based. The court also noted that while inferences could be drawn from the available material, the respondent's evidence was insufficient to establish privilege.

Ultimately, the court found that the respondent had discharged its burden of proving that the documents were privileged. The court held that the documents were prepared by in-house Defence lawyers and contained legal advice, which fell within the scope of legal professional privilege. The court also found that the respondent's opposition to the examination of the documents did not prejudice the applicant's case. However, the court held that the applicant's application was substantially unsuccessful, and therefore, costs should be costs in the cause.

The court ordered that the documents in question were protected by legal professional privilege and should not be disclosed. The court also ordered that costs be costs in the cause.