Griffiths v Rose - [2010] FCA 964

FEDERAL COURT OF AUSTRALIA
Griffiths v Rose [2010] FCA 964

Citation: Griffiths v Rose [2010] FCA 964

Parties: JOHN FRANK LEWIS GRIFFITHS v JO-ANN ROSE, KEN PETTIFER, COMMONWEALTH OF AUSTRALIA

File number: ACD 9 of 2010

Judge: STONE J

Date of judgment: 31 August 2010

Catchwords:
EVIDENCE – respondent’s claim for legal professional privilege – applicant concedes that documents were created for the dominant purpose of obtaining or giving legal advice – dispute arising in context of application for judicial review – whether requirements of procedural fairness preclude confidentiality necessary for legal professional privilege – whether decision maker required to give applicant access to legal advice received where that legal advice is adverse to the applicant and is credible, relevant and significant
ADMINISTRATIVE LAW – legal professional privilege – whether advice given to decision makers must be disclosed to person affected by decision where that legal advice is adverse to person affected and is credible, relevant and significant to making of decision – whether communications capable of attracting legal professional privilege

Legislation: Administrative Decisions (Judicial Review) Act (Cth)1977
Public Service Act (Cth) 1999
Migration Act (Cth) 1958), s 428

Cases cited: Bushell v Environment Secretary [1981] AC at 97
Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501
Esso Australia Resources Limited v Federal Commissioner of Taxation (1999) 201 CLR 49
Kioa v West (1985) 159 CLR 550
New South Wales Council for Civil Liberties Inc v Classifications Review Board (2006) 236 ALR 313
SZBYR & Anor v Minister for Immigration and Citizenship [2007] HCA 26
Waterfordv Commonwealth of Australia (1987) 163 CLR 5

Date of hearing: 30 August 2010

Place: Canberra

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 14

Counsel for the Applicant: I Neil SC

Solicitor for the Applicant: Williams Love & Nicol

Counsel for the Respondents: S Lloyd SC

Solicitor for the Respondents: Clayton Utz, Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 9 of 2010

BETWEEN:
JOHN FRANK LEWIS GRIFFITHS
Applicant

AND:
JO-ANN ROSE
First Respondent

KEN PETTIFER
Second Respondent

COMMONWEALTH OF AUSTRALIA
Third Respondent

JUDGE:

STONE J

DATE OF ORDER:

31 AUGUST 2010

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:
1.The respondents are relieved from producing the documents listed in Schedule 1 to these reasons sought by the applicant in its Notice to Produce dated 29 May 2010 on the basis that those documents are the subject of legal professional privilege.
2.The applicant is to pay the respondents’ costs of and associated with the Notice to Produce dated 29 May 2010 and the interlocutory hearing on 30 August 2010.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 9 of 2010

BETWEEN:
JOHN FRANK LEWIS GRIFFITHS
Applicant

AND:
JO-ANN ROSE
First Respondent

KEN…

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: [2010] FCA 964
Decision Date

CaseChat Overview and Summary

The case of Griffiths v Rose involves an application by John Frank Lewis Griffiths, the applicant, seeking judicial review of decisions made by Jo-Ann Rose and Ken Pettiffer, both respondents, relating to the applicant's employment with the Commonwealth Department of Resources, Energy and Tourism. The crux of the dispute lies in the respondents' refusal to produce certain documents, which they claim are protected by legal professional privilege. The central legal issues in this case revolve around the interplay between legal professional privilege and the principles of procedural fairness or natural justice. Specifically, the court had to determine whether the requirements of procedural fairness preclude the confidentiality necessary for legal professional privilege, and whether decision-makers are required to disclose adverse legal advice to the person affected by the decision when such advice is credible, relevant, and significant.

The Federal Court, in the opinion of Stone J, held that the documents in question were indeed protected by legal professional privilege as they were created for the dominant purpose of obtaining or giving legal advice. The applicant argued that procedural fairness required the disclosure of adverse legal advice, but the Court found this argument unpersuasive. Stone J highlighted that Brennan J in Kioa v West recognised that confidentiality issues may affect the extent to which the principle of procedural fairness applies. Moreover, the Court noted that Brennan J was referring to adverse information and not the decision-maker's thought processes or analyses of legal principles, a distinction supported by the High Court's decision in SZBYR v Minister for Immigration and Citizenship. The Court concluded that the applicant's proposition, if accepted, would mean that legal professional privilege would rarely attach to communications between administrative decision-makers and their legal advisers, which the Court found to be an unwarranted exception to established legal principles.

The Court also found that the applicant failed to demonstrate the presence of any unprivileged information within the disputed documents. Consequently, the respondents were relieved from producing the documents, and the applicant was ordered to pay the respondents' costs associated with the notice to produce and the hearing.

This case underscores the delicate balance between protecting legal professional privilege and ensuring procedural fairness in administrative decision-making processes. The Court's decision reaffirms the importance of confidentiality in legal advice and the limits of procedural fairness in compelling disclosure of privileged communications.

Orders