Grimsley and Telstra Corporation Limited

[2005] AATA 461

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 461

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/727

GENERAL ADMINISTRATIVE DIVISION		)
Re		JUDITH GRIMSLEY

Applicant

And  TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date23 May 2005

PlaceBrisbane

Decision The Tribunal cannot compel the respondent to produce the documents subject to legal professional privilege.

..................[Sgd].......................

SENIOR MEMBER

CATCHWORDS

EVIDENCE — Documentary evidence - legal professional privilege – surveillance tapes subject to summons of the Tribunal – surveillance tapes are documents subject to privilege in these proceedings.

Administrative Appeals Tribunal Act 1975, s 37

Safety Compensation and Rehabilitation Act 1988, s 59

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49

Waterford v Commonwealth (1987) 71 ALR 673

Trade Practices Commission v Sterling (1979) 36 FLR 244

Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49

Lindsey and Australian Postal Commission (1989) 18 ALD 340

REASONS FOR DECISION

23 May 2005  Senior Member B J McCabe

1.      Ms Judith Grimsley is the applicant in these proceedings. She became aware of the existence of a surveillance tape that had been commissioned by the respondent’s solicitors when she accessed documents provided in response to a summons. She has asked the respondent to provide her with a copy of the tape or tapes. The respondent has claimed the documents are privileged and exempt from disclosure.

2.      I held a directions hearing to consider the applicant’s request on 13 May 2005. I ruled that the claim for privilege in respect of the tapes was validly made. Ms Grimsley has disputed that ruling and filed further submissions. This statement of reasons explains my ruling.

3.      In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49, Gleeson CJ, Gaudron, Gummow and Hayne JJ explained (at para. 9):

…legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.

4.      There is no doubt that a party to proceedings before the Tribunal is entitled to decline to produce documents on the basis of a valid claim of legal professional privilege: see, for example, Waterford v Commonwealth (1987) 71 ALR 673. There is also no doubt that a tape may be considered for practical purposes as a document over which the privilege may be claimed: see Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246.

5.      As the High Court explained in Daniels, a claim of legal professional privilege will only be available where the document in question has been produced for the dominant purpose of legal proceedings: see also Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49.

6.      I was told the respondent has brought the tapes into existence in connection with these proceedings. There was no suggestion that the tape or tapes were created for any other purpose. The respondent may be intending to produce the documents at the hearing. It seems the situation in this case mirrors that in Lindsey and Australian Postal Commission (1989) 18 ALD 340. In Lindsey, the Tribunal held (at 346):

…the Tribunal has no power to give a direction, requiring the respondent to produce the video tape for inspection by the applicant, her legal advisers and medical practitioners, prior to the actual commencement of the hearing. This conclusion is based on the proposition that the video tape is the subject of legal professional privilege.

7.      The Tribunal also held (at 343-344) a reference to the existence of the privileged document prior to the hearing does not necessarily amount to a waiver of the privilege. I am satisfied there has been no waiver in this case even though the applicant has come across notes of an investigator describing the contents of a surveillance tape.

8. The applicant has referred to s 37 of the Administrative Appeals Tribunal Act 1975 and s 59 of the Safety Compensation and Rehabilitation Act 1988. Those sections do not expressly refer to legal professional privilege. The High Court explained in Daniels (at para. 11)

It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect.

9.      Neither of the provisions referred to in this case suggest (either expressly or by implication) the parliament intended to exclude privilege. In those circumstances, I am satisfied the Tribunal cannot compel the respondent to produce the documents. The question of whether or not the respondent ought to produce the documents instead of making a tactical decision to claim privilege is ultimately beside the point. Even model litigants have the right to claim privilege.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         Sam J Appleton
  Associate      

Date of Hearing  13 May 2005
Date of Decision  23 May 2005

The applicant appeared in person.

The respondent was represented by Mr Routh.