Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 5) [2023] FCA 1098

Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 5) [2023] FCA 1098

The emails in question were communications between Fair Work inspectors and in-house lawyers, acting in their capacity as legal advisers, relating to the provision of legal advice or in connection with contemplated or ongoing litigation. There was no evidence of illegal or improper purpose or of waiver. Privilege was properly claimed over the documents.

Parties
Applicant: Fair Work Ombudsman; First Respondent: Foot & Thai Massage Pty Ltd (ACN 147 134 272) (in liquidation); Second Respondent: Colin Kenneth Elvin; Third Respondent: Jun Millard Puerto
Jurisdiction
Australia
Judgment Date
13 September 2023
Procedural Posture
Interlocutory Application / Determination of Application for Production of Unredacted Documents
Outcome
Application dismissed
Legal Topics
Legal Professional Privilege, Discovery of Documents, Litigation Privilege, Waiver of Privilege, Privilege and in House Counsel
Employment and Industrial Relations Practice and Procedure Legal Professional Privilege Discovery of Documents Litigation Privilege Waiver of Privilege Privilege and in House Counsel

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Parties

Fair Work Ombudsman

Applicant

Foot & Thai Massage Pty Ltd (ACN 147 134 272) (in liquidation)

First Respondent

Colin Kenneth Elvin

Second Respondent

Jun Millard Puerto

Third Respondent

Procedural Posture

Interlocutory Application / Determination of Application for Production of Unredacted Documents

Legal Issues

  1. 1 Whether certain email communications are protected by legal professional privilege at common law
  2. 2 Whether privilege can be claimed over communications between in-house lawyers and staff
  3. 3 Whether there was an illegal or improper purpose excluding privilege

Ratio Decidendi

The emails in question were communications between Fair Work inspectors and in-house lawyers, acting in their capacity as legal advisers, relating to the provision of legal advice or in connection with contemplated or ongoing litigation. There was no evidence of illegal or improper purpose or of waiver. Privilege was properly claimed over the documents.

Court Disposition

Application dismissed

Orders

  • Mr Elvin's interlocutory application dated 21 July 2023 (as amended) is dismissed.