Fair Work Ombudsman v Lifestyle SA Pty Ltd (No 2) [2014] FCA 1152

Fair Work Ombudsman v Lifestyle SA Pty Ltd (No 2) [2014] FCA 1152

The Notice to Produce was set aside because the broad request for all legal advice over an 18 month period was not sufficiently relevant to the issues concerning delay in reimbursement and penalties to warrant production, and the Respondent's limited references to receiving advice that it had an arguable case did not amount to an implied waiver of legal professional privilege over the advice sought. Although the Notice was served shortly before the hearing, timing alone was not a sufficient reason to set it aside.

Jurisdiction
Australia
Judgment Date
31 October 2014
Procedural Posture
Fair Work Division Proceeding; Interlocutory Application Concerning a Notice to Produce / Reasons for Ruling Explaining Order Made on 26 September 2013 Setting Aside the Applicant's Notice to Produce
Outcome
Notice to Produce set aside.
Legal Topics
['notice to Produce' 'apparent Relevance' 'fishing Expedition' 'timing of Service Before Hearing' 'implied Waiver of Legal Professional Privilege' 'penalty Submissions and Mitigation']
['civil Procedure' 'evidence' 'legal Professional Privilege' 'fair Work'] ['notice to Produce' 'apparent Relevance' 'fishing Expedition' 'timing of Service Before Hearing' 'implied Waiver of Legal Professional Privilege' 'penalty Submissions and Mitigation']

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Procedural Posture

Fair Work Division Proceeding; Interlocutory Application Concerning a Notice to Produce / Reasons for Ruling Explaining Order Made on 26 September 2013 Setting Aside the Applicant's Notice to Produce

Legal Issues

  1. 1 ["Whether the Applicant's Notice to Produce seeking requests for legal advice and legal advice received by the Respondent should be set aside." 'Whether the documents sought were sufficiently relevant to justify production.' 'Whether the Notice to Produce was being used as a fishing exercise or as an alternative to discovery.' "Whether any legal professional privilege in the Respondent's legal advice had been waived by references to legal advice in submissions and affidavits."]

Ratio Decidendi

The Notice to Produce was set aside because the broad request for all legal advice over an 18 month period was not sufficiently relevant to the issues concerning delay in reimbursement and penalties to warrant production, and the Respondent's limited references to receiving advice that it had an arguable case did not amount to an implied waiver of legal professional privilege over the advice sought. Although the Notice was served shortly before the hearing, timing alone was not a sufficient reason to set it aside.

Court Disposition

Notice to Produce set aside.

Orders

  • ["The Applicant's Notice to Produce to the Respondent was set aside."]