Australian Workers' Union v Registered Organisations Commissioner [2019] FCA 309

Australian Workers' Union v Registered Organisations Commissioner [2019] FCA 309

The Commonwealth was the holder of the legal professional privilege in the six documents because the advice was sought and obtained in connection with the exercise of Commonwealth executive functions by a Minister. The applicant did not prove that Senator Cash, Mr Davies, or Senator Cash's counsel had authority to waive the Commonwealth's privilege. In any event, the evidence relied on did not disclose the privileged advice or its substance in a manner inconsistent with maintaining confidentiality, and the witnesses were subpoenaed witnesses rather than parties deploying privileged material for forensic advantage. Accordingly, privilege had not been waived and leave to uplift and inspect...

Jurisdiction
Australia
Judgment Date
07 March 2019
Procedural Posture
Federal Court Proceeding Seeking Declarations, Orders in the Nature of Certiorari and Prohibition, and Injunctions in Relation to an Investigation Decision by the Registered Organisations Commissioner / Ruling on Objections to Inspection of Subpoenaed Documents Produced by the Department of Jobs and Small Business; Proceeding Part Heard Before Bromberg J
Outcome
Application for leave to uplift and inspect the six documents dismissed; privilege objection upheld.
Legal Topics
['subpoenaed Documents' 'common Law Legal Professional Privilege' 'holder of Privilege in Government Legal Advice' 'waiver of Privilege' 'inspection of Documents Produced on Subpoena' 'improper Purpose Allegation in Administrative Decision Making']
['legal Professional Privilege' 'evidence' 'civil Procedure' 'administrative Law' 'employment and Industrial Relations'] ['subpoenaed Documents' 'common Law Legal Professional Privilege' 'holder of Privilege in Government Legal Advice' 'waiver of Privilege' 'inspection of Documents Produced on Subpoena' 'improper Purpose Allegation in Administrative Decision Making']

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Procedural Posture

Federal Court Proceeding Seeking Declarations, Orders in the Nature of Certiorari and Prohibition, and Injunctions in Relation to an Investigation Decision by the Registered Organisations Commissioner / Ruling on Objections to Inspection of Subpoenaed Documents Produced by the Department of Jobs and Small Business; Proceeding Part Heard Before Bromberg J

Legal Issues

  1. 1 ['Who was the holder of legal professional privilege in the six documents produced on subpoena.' 'Whether Senator Cash, her former Chief of Staff Mr Davies, or counsel appearing for Senator Cash effected a waiver of that privilege by evidence or failure to object during the hearing before Bromberg J.' 'Whether leave should be granted to the applicant to uplift and inspect the six documents.']

Ratio Decidendi

The Commonwealth was the holder of the legal professional privilege in the six documents because the advice was sought and obtained in connection with the exercise of Commonwealth executive functions by a Minister. The applicant did not prove that Senator Cash, Mr Davies, or Senator Cash's counsel had authority to waive the Commonwealth's privilege. In any event, the evidence relied on did not disclose the privileged advice or its substance in a manner inconsistent with maintaining confidentiality, and the witnesses were subpoenaed witnesses rather than parties deploying privileged material for forensic advantage. Accordingly, privilege had not been waived and leave to uplift and inspect...

Court Disposition

Application for leave to uplift and inspect the six documents dismissed; privilege objection upheld.

Orders

  • ['Leave to the applicant to uplift and inspect the six documents that are the subject of the claim for privilege is refused.' 'Costs reserved.' 'The Secretary and the Minister file and serve submissions as to costs by 4.00 pm on 13 March 2019.' 'The applicant file and serve submissions in response by 4.00 pm on 20...