Katherine Jane Von Stieglitz v Comcare

[2015] HCASL 2

KATHERINE JANE VON STIEGLITZ

v

COMCARE & ORS

[2015] HCASL 2
C6/2014

1. Ms Stieglitz commenced proceedings in the Administrative Appeals Tribunal (the "Tribunal"), seeking review of a decision of Comcare not to grant her compensation for an injury which she claims to have suffered during the course of her employment at the High Court of Australia ("the Employer").  At her request, the Tribunal issued a summons seeking documents from the Employer.  The Employer produced the documents to Comcare's solicitors ("DibbsBarker"), rather than to the Tribunal.  DibbsBarker then produced the documents to the Tribunal, accompanied by a schedule which claimed legal professional privilege with respect to some of the documents.

2. At an interlocutory hearing to determine the existence of privilege, the Tribunal (Member Hyman) accepted the contention that no claim for privilege had properly been put before the Tribunal.  The Tribunal made orders which set out a procedure for lodging claims of privilege.

3. The Employer subsequently claimed privilege with respect to thirty eight of the documents.  The applicant applied for leave to inspect those documents.  Save with respect to one document which had been produced to Ms Stieglitz by Comcare, the Tribunal (Presidential Member Cowdroy) dismissed the application.  The Tribunal held that the Employer had not waived legal professional privilege when the documents were produced to the Tribunal, and that common interest privilege subsisted between the Employer and DibbsBarker such that no waiver had occurred upon the Employer's initial production of the documents to DibbsBarker.

4. Ms Stieglitz applied to the Full Court of the Federal Court of Australia for writs of certiorari and mandamus pursuant to s 39B of the
   Judiciary Act 1903 (Cth). The Full Court (Foster, Davies and Rangiah JJ) rejected each of the three alleged grounds of jurisdictional error and dismissed the application, determining that there was ample evidence for the Tribunal's findings, that no error existed in relation to the Tribunal's approach to waiver, and that it did not need to consider the question of common interest privilege as other findings of fact made by the Tribunal justified the conclusion that the Employer did not waive privilege.

5. Ms Stieglitz now seeks special leave to appeal from the judgment of the Full Court. As the applicant does not have legal representation, the application falls to be dealt with under r 41.10 of the High Court Rules 2004 (Cth).

6. We would refuse special leave to appeal. The application discloses no reason to doubt the correctness of the Full Court's decision.  An appeal to this Court would enjoy insufficient prospects of success.

7. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
5 March 2015 S.J. Gageler