Friday v Minister for Primary Industry and Resources [2020] FCA 984

Friday v Minister for Primary Industry and Resources [2020] FCA 984

The disputed documents (except as to over-redaction of Document 121) are protected by legal advice privilege as they are confidential communications made for the dominant purpose of giving or obtaining legal advice, with no waiver found, and the independence of the government legal adviser is established by unchallenged evidence, so production cannot be compelled.

Jurisdiction
Australia
Judgment Date
14 July 2020
Procedural Posture
Interlocutory Application / Determination of Privilege Claim During Discovery
Outcome
Application granted in part; dismissal for remainder
Legal Topics
['legal Professional Privilege' 'legal Advice Privilege' 'discovery of Documents' 'production of Documents' 'government Legal Advice' 'in House Counsel Privilege']
['practice and Procedure' 'evidence' 'native Title'] ['legal Professional Privilege' 'legal Advice Privilege' 'discovery of Documents' 'production of Documents' 'government Legal Advice' 'in House Counsel Privilege']

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Procedural Posture

Interlocutory Application / Determination of Privilege Claim During Discovery

Legal Issues

  1. 1 ['Whether particular documents are protected by legal advice privilege and thus exempt from production on discovery' "Whether the 'dominant purpose' test for legal advice privilege is satisfied for the specific documents claimed as privileged" 'Whether an in-house government legal adviser can attract privilege and the independence requirement' 'Whether privilege has been waived by pleadings or conduct']

Ratio Decidendi

The disputed documents (except as to over-redaction of Document 121) are protected by legal advice privilege as they are confidential communications made for the dominant purpose of giving or obtaining legal advice, with no waiver found, and the independence of the government legal adviser is established by unchallenged evidence, so production cannot be compelled.

Court Disposition

Application granted in part; dismissal for remainder

Orders

  • ['Within 7 days, a copy of Document 121, with the second paragraph unredacted, be produced to the applicants.' 'Unless agreement is reached, submissions (not exceeding 3 pages) on costs of the interlocutory application to be filed and served by 21 July 2020 with indication as to whether costs can be dealt with on...