Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited [2017] FCA 856

Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited [2017] FCA 856

Mr Donnelly's affidavit evidence, read in context, was admissible and sufficient to support the inference that the documents were confidential communications between De Martin & Gasparini or Boral and their lawyer made for the dominant purpose of legal advice. Producing the documents in a sealed envelope subject to a privilege claim was not conduct inconsistent with maintaining privilege. The respondents had not directly or indirectly put the contents of the privileged communications in issue, and there was no demonstrated forensic unfairness to the CFMEU; accordingly there was no implied waiver.

Jurisdiction
Australia
Judgment Date
25 July 2017
Procedural Posture
Employment and Industrial Relations Proceeding Concerning Alleged Adverse Action, With an Interlocutory Dispute About Legal Professional Privilege Over Subpoenaed Documents / Determination of Respondents' Claim for Legal Professional Privilege in Response to a Subpoena
Outcome
The respondents' claim for legal professional privilege was upheld.
Legal Topics
['legal Professional Privilege' 'implied Waiver of Privilege' 'subpoena Production' 'adverse Action']
['evidence' 'employment and Industrial Relations'] ['legal Professional Privilege' 'implied Waiver of Privilege' 'subpoena Production' 'adverse Action']

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Procedural Posture

Employment and Industrial Relations Proceeding Concerning Alleged Adverse Action, With an Interlocutory Dispute About Legal Professional Privilege Over Subpoenaed Documents / Determination of Respondents' Claim for Legal Professional Privilege in Response to a Subpoena

Legal Issues

  1. 1 ["Whether the respondents' evidence was admissible and sufficient to establish legal professional privilege over documents responsive to the subpoena." 'Whether production of documents to the Court in a sealed envelope subject to a privilege claim was inconsistent with maintaining legal professional privilege.' 'Whether the respondents impliedly waived privilege by putting in issue legal advice allegedly given at a meeting on 28 June 2017.']

Ratio Decidendi

Mr Donnelly's affidavit evidence, read in context, was admissible and sufficient to support the inference that the documents were confidential communications between De Martin & Gasparini or Boral and their lawyer made for the dominant purpose of legal advice. Producing the documents in a sealed envelope subject to a privilege claim was not conduct inconsistent with maintaining privilege. The respondents had not directly or indirectly put the contents of the privileged communications in issue, and there was no demonstrated forensic unfairness to the CFMEU; accordingly there was no implied waiver.

Court Disposition

The respondents' claim for legal professional privilege was upheld.

Orders

  • ['The claim for legal professional privilege made by the respondents in respect of the documents identified in the affidavit of Jason Donnelly sworn 22 July 2017, in response to the subpoena issued on 15 July 2017, be upheld.']