Levick v Attorney-General

[2018] FCA 1609

FEDERAL COURT OF AUSTRALIA

Levick v Attorney-General [2018] FCA 1609

File number:

NSD 1147 of 2018

Judge:

BROMWICH J

Date of judgment:

24 October 2018

Date of publication of reasons:

25 October 2018

Catchwords:

PRIVILEGE – whether respondent waived legal professional privilege over redacted portions of documents served upon applicant – held: applicant has not established wavier of legal professional privilege – interlocutory application dismissed with costs

Legislation:

Extradition Act 1988 (Cth) ss 7, 11, 19(2)(c), 22

Judiciary Act 1903 (Cth) s 39B

Extradition (United States of America) Regulations

Cases cited:

Commissioner of Taxation v Rio Tinto [2006] FCAFC 86; 151 FCR 341

NSW Council for Civil Liberties v Classification Review Board [2006] FCA 1409; 236 ALR 313

O’Connor v Adamas [2013] FCAFC 14; 210 FCR 364

Osland v Secretary, Department of Justice [2008] HCA 37; 234 CLR 275

Zentai v O'Connor (No 2) [2010] FCA 252; 183 FCR 180

Date of hearing:

24 October 2018

Registry:

Sydney

Division:

General

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

22

Counsel for the Applicant:

Mr C Jackson

Solicitor for the Applicant:

Hearn Legal

Counsel for the Respondent:

Mr S Lloyd SC with Mr T Glover

Solicitor for the Respondent:

Commonwealth Attorney-General’s Department

ORDERS

NSD 1147 of 2018
BETWEEN:	DAVID RUSSELL LEVICK Applicant
AND:	ATTORNEY-GENERAL OF THE COMMONWEALTH Respondent

JUDGE:	BROMWICH J
DATE OF ORDER:	24 OCTOBER 2018

THE COURT ORDERS THAT:

1.The applicant’s interlocutory application dated and filed 23 August 2018 be dismissed,

2.The applicant pay the respondent’s costs of and incidental to the interlocutory application as agreed or assessed.

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

REASONS FOR JUDGMENT

BROMWICH J:

1. This is an interlocutory application seeking the production of unredacted copies of documents, the redactions being the subject of a claim of legal professional privilege.  The live issue is whether a waiver of privilege has taken place.  I heard the interlocutory application on the morning of 24 October 2018 and made orders and gave oral reasons later that day.  These are the reasons for the orders that I made, with minor revisions.

2. In the substantive proceeding, the applicant, Mr David Russell Levick, challenges, by way of judicial review, a decision made on 8 June 2018 by the respondent, the Attorney-General of the Commonwealth of Australia, to surrender him to the United States of America (USA). That surrender decision was made under s 22 of the Extradition Act 1988 (Cth). Mr Levick’s application is brought by way of an originating application for relief under s 39B of the Judiciary Act 1903 (Cth). The judicial review application has been set down for a final hearing on 30 November 2018, with a timetable fixed for any amended originating application, any further evidence and submissions to be filed and served.

3. By way of procedural orders made by consent on 2 August 2018, the Attorney-General was required to serve on…