FEDERAL COURT OF AUSTRALIA
Rivas v Minister for Finance [2025] FCA 824
Appeal from: Application for leave to appeal: Rivas v Minister for Finance (Privilege Issue) [2025] FCA 138 File number: NSD 268 of 2025 Judgment of: LONGBOTTOM J Date of judgment: 18 July 2025 Catchwords: PRACTICE AND PROCEDURE – Federal Court of Australia Act 1976 (Cth) s 24(1A) – Application for leave to appeal against an interlocutory decision – Whether decision of primary judge attended by requisite doubt – Whether substantial injustice occasioned if leave refused – Leave to appeal is refused. Legislation: Extradition Act 1988 (Cth) ss 19, 22
Federal Court of Australia Act 1976 (Cth) s 24
Treaty on Extradition between Australia and the Republic of Chile [1996] ATS 7, Article II(4)
Cases cited: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] NSWSC 7; (1996) 40 NSWLR 12
Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101
Brock v Minister for Home Affairs [2010] FCA 1301
Buck v Bavone [1976] HCA 24; (1975) 135 CLR 110
Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397
House v King (1936) 55 CLR 499
Kennedy v Wallace & Ors [2004] FCAFC 337; (2004) 142 FCR 185
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Rivas v Republic of Chile [2021] FCAFC 214
Rivas v Republic of Chile [2021] FCA 693
TerraCom Ltd v Australian Securities and Investments Commission [2022] FCAFC 151
Division: General Division Registry: New South Wales National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 36 Date of hearing: 9 July 2025 Counsel for the Applicant: Dr S Baron Levi Solicitor for the Applicant: Nyman Gibson Miralis Defence Lawyers Counsel for the Respondents: Mr T Glover SC with Mr M Pruscino Solicitor for the Respondents: Attorney-General’s Department ORDERS
NSD 268 of 2025 BETWEEN: ADRIANA ELCIRA RIVAS
Applicant
AND: MINISTER FOR FINANCE
First Respondent
COMMONWEALTH ATTORNEY-GENERAL
Second Respondent
ORDER MADE BY:
LONGBOTTOM J
DATE OF ORDER:
18 JULY 2025
THE COURT ORDERS THAT:
1.The application for leave to appeal filed 28 February 2025 is dismissed.
2.The applicant is to pay the respondents’ costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
LONGBOTTOM J:
INTRODUCTION
The applicant (Ms Adriana Rivas) seeks leave to appeal an interlocutory judgment dismissing an interlocutory application by which Ms Rivas sought disclosure of redacted material in a departmental document over which the first respondent (Minister) made a claim for legal professional privilege.
Ms Rivas contended on the interlocutory application that the Minister waived legal professional privilege by the disclosure of the unredacted portions of the document. The…
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Details
- Case
- [2025] FCA 824
- Decision Date
CaseChat Overview and Summary
Ms Rivas applied for leave to appeal against an interlocutory decision of the primary judge. The primary judge had ruled that the Minister for Finance did not waive legal professional privilege by disclosing certain parts of a document in an extradition case. Ms Rivas argued that the disclosure of certain parts of the document was inconsistent with the Minister's claim of privilege over other parts of the document. The court was required to determine whether the primary judge's decision was attended by doubt and whether refusing leave to appeal would occasion substantial injustice.
The court found that the primary judge's decision was not attended by doubt and that refusing leave to appeal would not occasion substantial injustice. The court held that the primary judge correctly applied the legal principles concerning waiver of legal professional privilege. The court found that there was no inconsistency between the redacted and unredacted parts of the document, and that the disclosure of certain parts of the document did not amount to a waiver of privilege over the remaining parts. The court also held that the primary judge correctly identified the relevant legal principles and applied them to the facts of the case.
The court dismissed the application for leave to appeal and ordered that the applicant pay the respondents' costs. The court held that the primary judge's decision was not attended by doubt and that refusing leave to appeal would not occasion substantial injustice. The court found that the primary judge correctly applied the legal principles concerning waiver of legal professional privilege and that there was no inconsistency between the redacted and unredacted parts of the document. The court also held that the primary judge correctly identified the relevant legal principles and applied them to the facts of the case.
The court found that the primary judge's decision was not attended by doubt and that refusing leave to appeal would not occasion substantial injustice. The court held that the primary judge correctly applied the legal principles concerning waiver of legal professional privilege. The court found that there was no inconsistency between the redacted and unredacted parts of the document, and that the disclosure of certain parts of the document did not amount to a waiver of privilege over the remaining parts. The court also held that the primary judge correctly identified the relevant legal principles and applied them to the facts of the case.
The court dismissed the application for leave to appeal and ordered that the applicant pay the respondents' costs. The court held that the primary judge's decision was not attended by doubt and that refusing leave to appeal would not occasion substantial injustice. The court found that the primary judge correctly applied the legal principles concerning waiver of legal professional privilege and that there was no inconsistency between the redacted and unredacted parts of the document. The court also held that the primary judge correctly identified the relevant legal principles and applied them to the facts of the case.
Orders
Orders of the court
1. The application for leave to appeal filed 28 February 2025 is dismissed.
2. The applicant is to pay the respondents’ costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Ms Rivas contended on the interlocutory application that the Minister waived legal professional privilege by the disclosure of the unredacted portions of the document. The primary judge rejected that contention, finding that nothing about the continued maintenance of the claim arising from the redactions gave rise to any unfair inconsistency. That decision is not, for the reasons that follow, attended by doubt. The application for leave to appeal will be dismissed with costs. RELEVANT BACKGROUND By a proceeding commenced on 27 September 2024, Ms Rivas seeks to challenge the determination of the Minister (acting on behalf of the second respondent, the Commonwealth Attorney-General) that she be surrendered to the Republic of Chile pursuant to s 22(2) of the Extradition Act 1988 (Cth). On 28 October 2024, the Minister was ordered to serve Ms Rivas with a copy of the departmental brief (including attachments) for the determination, subject to any claims based on legal professional privilege or public interest immunity. The departmental brief was served in accordance with the orders. Of present relevance, the Minister claimed legal professional privilege over, and redacted parts of, “Attachment A” to the departmental brief, entitled “Departmental advice on the preconditions to and grounds for refusal for surrender” (Attachment A). On 21 February 2025, the primary judge made the interlocutory judgment. In so doing, the primary judge found that Ms Rivas failed to establish that there was any relevant inconsistency, let alone unfair inconsistency, between the redacted and unredacted parts of Attachment A. Ms Rivas does not put in issue that the primary judge correctly identified the applicable legal principles. Those principles, as summarised at [7] of the reasons for the interlocutory judgment (Reasons) are as follows: (1) Even if the Minister accepted the advice she was given as contained in the departmental advice, this in and of itself is insufficient to constitute waiver of legal professional privilege.(2)The use of legal advice to make an administrative decision is not necessarily inconsistent with maintaining the confidentiality of that advice.(3)Waiver will only occur to the extent “that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect”: Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275 (at 297 [45] per Gleeson CJ, Gummow, Heydon and Kiefel JJ).(4)Whether a limited disclosure of the existence and effect of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case; questions of waiver are matters of fact and degree: Osland (at 298–299 [49] per Gleeson CJ, Gummow, Heydon and Kiefel JJ). Ms Rivas instead seeks to challenge the interlocutory judgment on the following proposed grounds:Grounds of appeal 1.The primary judge erred in failing to find that the disclosure of the conclusions of legal advice, and part of the reasoning on the same subject matter for those conclusions, was inconsistent with the assertion of privilege over the remaining reasoning (at [19]-[23] of the judgment);2.The primary judge erred in finding that such parts of the departmental brief as were disclosed did not already disclose legal advice provided to the Minister (at [17] of the judgment); and3.The primary judge erred by misapprehending the nature of the cases of both the applicant and the respondent, and in turn misapprehended the relevance of the material the subject of redactions for legal professional privilege to that case and the unfairness in its partial disclosure (at [24]-[30] of the judgment).RELEVANT PRINCIPLES
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The question before the primary judge was one of waiver, not whether Attachment A was a document over which legal professional privilege could be claimed in whole. The second proposed ground of appeal is without merit. No inconsistency arising from the disclosure of conclusions in Attachment A Turning then to the first proposed ground of appeal. This proposed ground relates to the findings made by the primary judge with respect to two extracts in Attachment A dealing with, respectively, non-refoulement obligations (first extract) and double criminality (second extract). First Extract The first extract is as follows:iv. Departmental analysis90. Although Ms Rivas González’s representations do not explicitly allege that she is at risk of torture within the Chilean prison system, they do raise interrelated concerns which are relevant to your consideration of the risks of both torture and other harms. Ms Rivas González’s representations fall within your consideration of paragraph 22(3)(b) only insofar as they relate to a risk of torture of a kind recognised in de Bruyn. Accordingly, we address this aspect of the representations in this section. Aspects of the representations which relate to the risk of harm that may constitute cruel, inhuman or degrading treatment or punishment will be addressed below as part of the exercise of your general discretion under paragraph 22(3)(f) of the Act.91. We consider that, in order to determine whether or not there are substantial grounds for believing that Ms Rivas González would be in danger of being subjected to torture if surrendered to Chile, it is necessary to assess whether Australia’s non‑refoulement obligations under the CAT are engaged with respect to Ms Rivas González as a matter of both domestic and international law.92. [REDACTED] [REDACTED] [REDACTED].93. [REDACTED] [REDACTED] [REDACTED].…108. While Ms Rivas González has raised concerns that she might be particularly vulnerable, due to the political nature of the crimes with which she is charged, Chile has advised that Ms Rivas González will be housed in a purpose-built section of the prison, ‘Esperanza’, with other female inmates with chronic disease and of advanced age but who have been convicted of human rights violations (as opposed to being accused of such). Accordingly, Ms Rivas González will not be at personal risk under Article 1 of the CAT due to the political nature of her crimes, given she will be housed with others who have been convicted of the types of offences she is accused of.109. While there is no guarantee that Ms Rivas González will remain in that facility for the duration of her pre-trial detention, or if convicted, when considered in totality and at their highest, the described prison conditions in Chile are unlikely to meet the high threshold of torture (that is, causing severe pain or suffering, intentionally inflicted for a particular purpose and involving a public official). Instead, the conditions described may indicate generalised sub-standard prison management. Accordingly, the department does not consider that these issues reach either [REDACTED] [REDACTED] [REDACTED] or the ‘real chance’ test outlined in Francuziak to establish that Australia owes non-refoulement obligations to Ms Rivas González.…i. Australia’s non-refoulement obligations under the ICCPR178. As outlined above, Ms Rivas González has made a series of representations relating to prison conditions in Chile. For the reasons outlined at paragraphs [90] to [111] above, the department considers that these representations do not rise to the threshold of torture under the CAT or relevant domestic law for the purposes of paragraph 22(3)(b) of the Extradition Act (as set out by the Full Federal Court in de Bruyn).
Ratio Decidendi
Legal Principle Established
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