Alpert v Secretary, Department of Defence

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 04 February 2022
• Neutral Citation: [2022] FCA 54
• Date: 04 February 2022

Federal Court of Australia

Alpert v Secretary, Department of Defence [2022] FCA 54

Appeal from:	Alpert and Secretary, Department of Defence (Freedom of information) [2020] AATA 1632
File number:	QUD 199 of 2020
Judgment of:	COLLIER J
Date of judgment:	4 February 2022
Catchwords:	APPEAL – appeal from decision of the Administrative Appeals Tribunal (Tribunal) – whether appeal from Tribunal competent pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and relevant case law – “finality” for the purposes of s 44 of the AAT Act – interlocutory decision before Tribunal ; ADMINISTRATIVE LAW – whether Tribunal erred in applying s 35(4) of the AAT Act by approaching the question whether document disclosable by reference to whether it was an “exempt document” for purposes of s 42 of the Freedom of Information Act 1982 (Cth) – s 37 of the AAT Act – “issue waiver” – whether Tribunal erred in failing to find legal professional privilege attached to document had been waived – whether Tribunal erred in finding no denial of procedural fairness ; EVIDENCE – Legal Profession Privilege –– whether first respondent acted consistently with maintenance of claim for legal professional privilege – whether document subject of valid claim for legal professional privilege, or alternatively whether privilege waived
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) ss 35(4), 37, 37(1), 37(3), 39, 43, 43(1), 44, 44(1); Federal Court of Australia Act 1976 (Cth) s 43 Freedom of Information Act 1982 (Cth) ss 42, 55DA
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	100
Date of hearing:	27 July 2021
Counsel for the Applicant:	Mr P McCafferty QC and Mr H Clift
Solicitor for the Applicant:	HopgoodGanim Lawyers
Counsel for the First Respondent:	Mr S Rebikoff
Solicitor for the First Respondent:	Australian Government Solicitor

ORDERS

		QUD 199 of 2020
BETWEEN:	STEWART ALPERT Applicant
AND:	SECRETARY, DEPARTMENT OF DEFENCE First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	COLLIER J
DATE OF ORDER:	4 February 2022

THE COURT FINDS THAT:

1. The first respondent has acted consistently with the maintenance of a claim for legal professional privilege over document T10.1.

2. Document T10.1 is the subject of a valid claim for legal professional privilege, or alternatively, any privilege has not been waived.

THE COURT ORDERS THAT:

1. The Supplementary Notice of appeal from a tribunal filed by the applicant on 18 September 2020 be dismissed.

2. The Notice of Objection to Competency of the Supplementary Notice of appeal from a tribunal filed by the first respondent on 25 September 2020 be upheld.

3. The application pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to review the decision of the second respondent that document T10.1 is protected by legal professional privilege and the decision to relieve the first respondent from the obligation to give a copy of document T10.1 to the applicant in matter 2020/1689 in the Administrative Appeals Tribunal be dismissed.

4. The application by the applicant for relief under s 39 of the Judiciary Act 1903 (Cth) be dismissed.

5. The applicant pay the costs of the first respondent of and incidental to the Supplementary Notice of appeal from a tribunal filed by the applicant on 18 September 2020, the Notice of Objection to Competency of the Supplementary Notice of appeal from a Tribunal filed by the first respondent on 25 September 2020, the application for judicial review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the application pursuant to s 39 of the Judiciary Act 1903 (Cth), such costs to be taxed if not otherwise agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1. Before the Court is a supplementary notice of appeal from a tribunal filed by the applicant, Mr Stewart Alpert, on 18 September 2020 (supplementary notice of appeal). Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the applicant appeals from the whole of the decision of the Administrative Appeals Tribunal (Tribunal) given on 3 June 2020 in 4 February 20224 FEBRUARY 2022 (primary decision). In the primary decision, the Tribunal decided to restrict publication or other disclosure of a document (referred to as document T10.1), and relieved the first respondent, the Secretary, Department of Defence (first respondent), from the obligation to give a copy of document T10.1 to the applicant.

2. In the alternative, the applicant applies to the Court pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) to review the Tribunal’s decision that document T10.1 is protected by legal professional privilege and the decision to relieve the first respondent from the obligation to give a copy of document T10.1 to the applicant for the substantive proceedings in the primary decision.

3. Further in the alternative, the applicant applies to the Court pursuant to s 39 of the Judiciary Act 1903 (Cth) (Judiciary Act) for the relief set out under the heading “Orders sought” in the applicant’s supplementary notice of appeal.

4. In summary, the applicant seeks orders from the Court that the appeal be allowed, the primary decision be quashed or set aside, and the first respondent provide a copy of document T10.1 to the applicant pursuant to s 37(1AE) of the AAT Act. In making such orders, the applicant has asked the Court to consider questions of law and to make findings of fact in respect of document T10.1.

5. Also before the Court is a notice of objection to competency, filed by the first respondent on 25 September 2020, objecting to the competency of the applicant’s supplementary notice of appeal under s 44 of the AAT Act.

6. The first respondent seeks orders that the appeal be held to be incompetent, and the application for judicial review of the primary decision be dismissed. The first respondent also seeks an order that the applicant pay the first respondent’s costs of the proceeding, and should pay the costs of, and incidental to, the notice of objection to competency in any event.

Background

7. On 10 June 2018, the applicant filed a freedom of information (FOI) request with the first respondent. The applicant sought documents in relation to proceedings that were bought against the applicant by the first respondent during his service. The documents requested by the applicant were described by the applicant in his request as follows:

Document 1: The Minute titled ‘Preliminary legal advice to 6RAR, 26 Sep 02’ which is alternatively named and was also referenced as ‘7 Bde Legal Minute (to RSM 6RAR) dated 26 Sep 02’.

Note: It appears that the document was written by, the then, MAJ Russell Pearce to the RSM of 6 RAR;

and

Document 2: The Minute titled ‘7Bde Legal Minute 350/02 dated 26 Sep 02’.

Note: It appears that this document was written by, the then, MAJ Russell Pearce to the COMD 7BDE, the then, BRIG Richard...