Australian Workers' Union v Registered Organisations Commissioner

• Jurisdiction: Australia Federal only
• Judge: WHEELAHAN J
• Judgment Date: 07 March 2019
• Neutral Citation: [2019] FCA 309
• Court: Federal Court
• Date: 07 March 2019

FEDERAL COURT OF AUSTRALIA

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

File number:	VID 1151 of 2017
Judge:	WHEELAHAN J
Date of judgment:	7 March 2019
Catchwords:	PRIVILEGE – subpoenaed documents – claim for common law legal professional privilege - who is the holder of privilege in emails from government lawyers to a Minister’s office - whether waiver of privilege effected by evidence of witnesses during hearing – Commonwealth the holder of privilege – no waiver of privilege effected – application to uplift and inspect documents dismissed.
Legislation:	Acts Interpretation Act 1901 (Cth) s 19 Federal Court Rules 2011 (Cth) r 24.20(3)
Cases cited:	Attorney-General (NT) v Kearney (1985) 158 CLR 500 Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) (2011) 283 ALR 299 Bailey v Director-General, Department of Land and Water Conservation (2009) 74 NSWLR 333 Baker v Campbell (1983) 153 CLR 52 Baker v Evans (1987) 77 ALR 565 Benecke v National Australia Bank(1993) 35 NSWLR 110 Bullivant v Attorney-General for the State of Victoria [1901] AC 196 Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd [1972] Ch 553 Divall v Mifsud [2005] NSWCA 447 DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 Esso Australia Resources v Commissioner of Taxation (1999) 201 CLR 49 Expense Reduction Analyst Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd(2013) 250 CLR 303 In re Grand Jury Subpoena Duces Tecum112 F 3d 910 (1997) In re Lemos[2018] Ch 81 Grant v Downs (1976) 135 CLR 674 Lake Cumberline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58 Mann v Carnell (1999) 201 CLR 1 Minet v Morgan (1873) LR 8 Ch App 361 National Employers’ General Mutual Insurance Association Limited v Waind [1978] 1 NSWLR 372 New South Wales Council for Civil Liberties Inc v Classification Review Board (No 1)(2006) 236 ALR 313 New South Wales v Betfair Pty Ltd (2009) 180 FCR 543 Osland v Secretary, Department of Justice (2008) 234 CLR 275 Pasini v Vanstone[1999] FCA 1271 R v Bunting (2002) 84 SASR 378 R v Dunwoody (2004) 212 ALR 103 R v Hickey [1997] EWCA Crim 743 R v Molloy [1997] 2 Cr App R 283 R v Petroulias (No 22) (2007) 213 FLR 293 Secretary, Department of Justice v Osland (2007) 95 ALD 380 Shlosberg v Avonwick Holdings Ltd [2017] Ch 210 The Truculent[1952] P 1 Waterford v Commonwealth (1987) 163 CLR 54 Waterford v Department of Treasury(1985) 5 FCR 76 ; Hogg, Monahan & Wright, Liability of the Crown (4th edition, Carswell) Imwinkelreid E J, The New Wigmore, A Treatise on Evidence (Aspen Law and Business, New York, 2002) Paulsen, Who “Owns” the Government’s Attorney-Client Privilege? (83 Minnesota Law Review 473)
Dates of hearing:	26, 27 February 2019
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	63
Counsel for the Applicant:	Mr H Borenstein QC with Ms C van Proctor
Solicitor for the Applicant:	Maurice Blackburn Lawyers
Counsel for the Minister for Jobs and Industrial Relations, the Hon Kelly O’Dwyer MP, and the Department of Jobs and Small Business:	Dr S McNicol QC with Mr R Chaile
Solicitor for the Minister for Jobs and Industrial Relations, the Hon Kelly O’Dwyer MP, and the Department of Jobs and Small Business:	Clayton Utz
Counsel for Senator Cash:	Mr Horan QC

ORDERS

		VID 1151 of 2017
BETWEEN:	THE AUSTRALIAN WORKERS’ UNION Applicant
AND:	REGISTERED ORGANISATIONS COMMISSIONER First Respondent ; COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Second Respondent

JUDGE:	WHEELAHAN J
DATE OF ORDER:	7 MARCH 2019

THE COURT ORDERS THAT:

1. Leave to the applicant to uplift and inspect the six documents that are the subject of the claim for privilege is refused.

2. Costs reserved.

3. The Secretary and the Minister file and serve submissions as to costs by 4.00 pm on 13 March 2019.

4. The applicant file and serve submissions in response by 4.00 pm on 20 March 2019.

5. The Secretary and the Minister file and serve submissions in reply by 4.00 pm on 22 March 2019.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1. The applicant has brought a proceeding against the Registered Organisations Commissioner (Commissioner) as one of two respondents seeking declarations, orders in the nature of certiorari and prohibition, and injunctions directed to a decision of the Commissioner to conduct an investigation into whether, in relation to alleged donations made by the applicant in the financial years ending 30 June 2006 and 30 June 2008, certain provisions of the Workplace Relations Act 1996 (Cth) had been contravened. The proceeding is currently part-heard before Bromberg J.

2. These reasons relate to my ruling upon objections to the inspection of documents that have been produced by the Secretary of the Department of Jobs and Small Business (Department) pursuant to a subpoena to produce documents issued at the request of the applicant. The objections have been taken by the Secretary, the Department, and by the current Minister for Jobs and Small Business, the Hon Kelly O’Dwyer, who is the Minister administering the Fair Work Act 2009 (Cth), and the Fair Work (Registered Organisations) Act 2009 (Cth). At the hearing of the objections Mr Borenstein QC and Ms van Proctor appeared for the applicant, and Dr McNicol and Mr Chaile appeared for the current Minister, and for the Department. Towards the conclusion of the hearing, Dr McNicol announced that she appeared for the Secretary of the Department. Mr Horan QC had appeared for Senator the Hon Michaelia Cash who was a subpoenaed witness at the hearing before Bromberg J. By leave, Mr Horan addressed some factual matters that arose in relation to the course of the hearing before Bromberg J.

Background

3. The applicant advances a number of grounds of review in the proceeding. Amongst those grounds, is an allegation that the Commissioner’s decision to conduct an investigation under s 331(2) of the Fair Work (Registered Organisations) Act 2009...