Rilstone v BP Australia Pty Ltd - [2007] FCA 1557

FEDERAL COURT OF AUSTRALIA
Rilstone v BP Australia Pty Ltd [2007] FCA 1557
PROCEDURE – where discovery made of documents – where claim of legal professional privilege – where claim of legal advice privilege – where application to produce for inspection – where documents created in course of investigation by Office of Workplace Services – where documents communicated by Office of Workplace Services to Legal and Advice Branch of Office of Workplace Services – where multiple purposes for creation of documents – where head of Legal and Advice Branch had power to approve State Manager’s recommendation to institute proceedings – whether legal advice privilege established – whether documents brought into existence for dominant purpose of obtaining legal advice – whether Legal and Advice Branch of Office of Workplace Services a legal adviser – whether necessary to establish independence in all cases – whether power to approve State Manager’s recommendation deprived Legal and Advice Branch of independence.
Held: evidence required to establish professional relationship depends upon circumstances – power to approve State Manager’s recommendation did not deprive Legal and Advice Branch of independence – independence and professional relationship established in the circumstances – evidence does not establish documents brought into existence for dominant purpose of obtaining legal advice – legal advice privilege not established – application to produce for inspection granted.
Evidence Act 1995 (Cth) s 118
Federal Court Rules O 33, r 11
Workplace Relations Act 1996 (Cth) ss 400, 407, 410, 846
Workplace Relations Regulations 2006 (Cth)
Australian Federal Police Commissioner v Propend Finance Pty Ltd (1997) 188 CLR referred to
Barnes v Commissioner of Taxation [2007] FCAFC 88 referred to
Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49 followed
Northern Territory v GPAO (1999) 196 CLR 553 referred to
Seven Network Limited v News Limited [2005] FCA 142 referred to
Seven Network Ltd v News Ltd (2005) 144 FCR 379 followed
Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 distinguished
Waterford v The Commonwealth (1987) 163 CLR 54 followed
AARON RILSTONE v BP AUSTRALIA PTY LTD ACN 004 085 616 AND NO 1 RIVERSIDE QUAY PTY LTD ACN 006 639 087
SAD 44 OF 2007
BESANKO J
11 OCTOBER 2007
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 44 OF 2007

BETWEEN:

AARON RILSTONE
Applicant

AND:

BP AUSTRALIA PTY LTD ACN 004 085 616
First Respondent

NO 1 RIVERSIDE QUAY PTY LTD ACN 006 639 087
Second Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

3 OCTOBER 2007

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT the applicant produce for inspection each of the following documents: 3.2, 3.4, 3.5, 3.6-3.13 inclusive, 4.7-4.11 inclusive, 4.15-4.17 inclusive, 4.18, 4.19, 4.20, 4.21, 4.22-4.30 inclusive, 4.32, 4.33.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 44 OF 2007

BETWEEN:

AARON RILSTONE
Applicant

AND:

BP AUSTRALIA PTY…

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: [2007] FCA 1557
Decision Date: 11 October 2007

CaseChat Overview and Summary

In the case of Rilstone v BP Australia Pty Ltd, the applicant sought to assert legal professional privilege over certain documents, including a subset of interview documents, to prevent their disclosure in the course of litigation. The respondent, BP Australia Pty Ltd, contested the claim of privilege. The central figure in the applicant's case was Mr Ronson, whose role and credibility were pivotal in establishing the applicant's case for privilege. The court had to determine whether the applicant had demonstrated that the documents were created for the dominant purpose of obtaining legal advice, a necessary condition for advice privilege to apply.

The legal issues before the court involved the application of legal professional privilege, specifically advice privilege, to the documents in question. The applicant argued that the documents, including the subset of interview documents, were created in the course of seeking legal advice to guide the investigation and potential legal proceedings. The respondent contended that the applicant had not met the threshold requirement of showing that the dominant purpose of the documents was to obtain legal advice. The court had to assess the evidence provided, particularly the testimony of Mr Ronson, and determine whether the documents were indeed created for the purpose of obtaining legal advice.

The court found Mr Ronson to be a credible witness and accepted his evidence regarding the process of seeking legal advice before proceeding with the investigation. However, the court concluded that the applicant had not established that the dominant purpose of creating the documents was to obtain legal advice. The court's reasoning was that although the applicant had shown some independence in seeking legal advice, this did not impact the fundamental requirement that the documents had to be created for the purpose of obtaining legal advice. Consequently, the applicant's claim for advice privilege was rejected.

The court ordered that the applicant's claim for advice privilege in relation to the documents identified in the appendix to the reasons was dismissed. The court found that the applicant had failed to meet the necessary burden of proof to establish that the dominant purpose for the creation of the documents was the obtaining of legal advice. As a result, the documents were not protected by legal professional privilege, and the applicant's application to prevent their disclosure was unsuccessful.

Orders

Orders of the court

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Background

Background to the litigation

For reasons which will later become apparent, it is convenient to state now that a subset of the documents in issue comprises records of interviews conducted during the investigation and related documentation (“the interview documents”). This subset is identified in the last column in the table of the appendix to these reasons. The documents within the subset were identified by counsel for the applicant from the bar table for the purposes of the submission discussed below [17]-[18].Background Facts The applicant relied upon the evidence of Mr Ronson to support his claims for privilege. Mr Ronson has been involved, and has participated at an investigatory level, at all stages of the case which has given rise to the present proceeding. In addition to his affidavit, Mr Ronson gave oral evidence at the hearing of the notice of motion. I found Mr Ronson to be an honest and straightforward witness and I accept his evidence. The salient points of Mr Ronson’s evidence are as follows: Mr Ronson has a general discretion to determine the investigations that are to be pursued; Where an investigation involves high-profile or sensitive issues of, for example, a political or legal nature, his practice is to seek legal advice from the Legal and Advice Branch of the Workplace Ombudsman before deciding whether to proceed further with the investigation or to close the file; The Legal and Advice Branch is the Workplace Ombudsman’s central legal division. It provides nationwide legal advice to inspectors and senior management. The Legal and Advice Branch is also responsible for engaging and instructing external legal providers such as the Australian Government Solicitor and other legal providers engaged by the Workplace Ombudsman;§Mr Ronson has a responsibility to recommend the institution of proceedings to the Legal and Advice Branch, which will subsequently approve or not approve that recommendation. The decision whether or not to institute a proceeding was to be made by Ms Heather Byrne, who was the head of Legal and Advice Branch.§Mr Ronson’s involvement in the case giving rise to the present proceeding commenced on 14 August 2006; By 18 August 2006, it was clear to Mr Ronson that he was going to seek legal advice in relation to the case because of Ministerial interest in the matter; the fact that the first respondent was a well known and significant employer; the matter involved young, and vulnerable employees, and involved parents of employees; the nature of the alleged breach of the Act; and media interest; and He sought legal advice from the Legal and Advice Branch and his oral evidence was that the first time he did that was between the end of September 2006 and 5 October 2006. On the latter date the Legal and Advice Branch made a decision to seek external legal advice and the firm of Minter Ellison was instructed on 5 October 2006. On 23 October 2006 the Workplace Ombudsman (in fact, at that time, it must have been the OWS) received advice on the prospects of litigation.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BESANKO J

Although I reject the respondents’ submissions to the effect that the applicant had not shown the necessary degree of independence for the purpose of legal professional privilege none of my conclusions on this issue affect my conclusion on the first issue, namely, that the applicant has failed to establish that the dominant purpose for the creation of the documents was the obtaining of legal advice.Conclusion The applicant has failed to establish its claim for advice privilege in relation to the documents identified in the appendix to these reasons.

Ratio Decidendi

Legal Principle Established

Established by: BESANKO J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 44 OF 2007

JUDGE:	BESANKO J
DATE OF ORDER:	3 OCTOBER 2007
WHERE MADE:	ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 44 OF 2007

BETWEEN:	AARON RILSTONE Applicant
AND:	BP AUSTRALIA PTY…