Ashby v Commonwealth of Australia [2012] FCA 640

Ashby v Commonwealth of Australia [2012] FCA 640

By including an assertion in the originating application that the allegations were supported by sworn or affirmed evidence, the applicant conveyed that such evidence (embodied in the full affidavit) would be available and relied upon in court, making the claim for privilege over the affidavit inconsistent with its use; therefore, privilege was held to be waived as to the entire affidavit.

Parties
Applicant: James Hunter Ashby; First Respondent: Commonwealth of Australia; Second Respondent: Peter Slipper
Jurisdiction
Australia
Judgment Date
15 June 2012
Procedural Posture
Originating Application (fair Work and Common Law Claims) / Interlocutory Application Concerning Privilege—order Concerning Production of Affidavit
Outcome
Privilege waived over affidavit; application for production of unredacted affidavit granted.
Legal Topics
Waiver of Legal Professional Privilege, Fair Work Act Discrimination Proceedings, Production of Documents, Abuse of Process
Employment Law Evidence Civil Procedure Waiver of Legal Professional Privilege Fair Work Act Discrimination Proceedings Production of Documents Abuse of Process

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Parties

James Hunter Ashby

Applicant

Commonwealth of Australia

First Respondent

Peter Slipper

Second Respondent

Procedural Posture

Originating Application (fair Work and Common Law Claims) / Interlocutory Application Concerning Privilege—order Concerning Production of Affidavit

Legal Issues

  1. 1 Whether the applicant waived legal professional privilege in respect of his affidavit by referencing sworn or affirmed evidence in the originating application
  2. 2 Whether fairness required disclosure of the entire unredacted affidavit to the respondents

Ratio Decidendi

By including an assertion in the originating application that the allegations were supported by sworn or affirmed evidence, the applicant conveyed that such evidence (embodied in the full affidavit) would be available and relied upon in court, making the claim for privilege over the affidavit inconsistent with its use; therefore, privilege was held to be waived as to the entire affidavit.

Court Disposition

Privilege waived over affidavit; application for production of unredacted affidavit granted.

Orders

  • The second respondents have leave to issue subpoenas as identified.
  • Notices to produce served on the applicant to be returnable as ordered.