Federal Court of Australia

Stephen v Seahill Enterprises Pty Ltd [2022] FCAFC 85

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the following costs of the first and second respondents:

(a)    the costs of and incidental to the directions hearing conducted on 9 February 2022; and

(b)    40% of the first and second respondents’ costs incurred following the service on the applicant of the respondents’ outline of submissions, in each instance, the costs to be fixed by a Registrar in the absence of agreement.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    Mr Damien Stephen, the applicant, is an employee of Seahill Enterprises Pty Ltd (Seahill Enterprises), the first respondent. The director of Seahill Enterprises is Ms Denise Fitzgibbons, the second respondent. On 28 September 2020, Mr Stephen lodged an application with the conciliation and arbitration commission, presently known as the Fair Work Commission (Industrial Commission), for an order to stop bullying, directed to Seahill Enterprises, pursuant to s 789FC of the Fair Work Act 2009 (Cth) (FW Act).

2    On 4 February 2021, Mr Stephen applied to the Industrial Commission (Commissioner Simpson) for orders for the production of documents directed to Seahill Enterprises, Ms Fitzgibbons, a Mr Arron Hartnett, a barrister, and Ms Paulette McCormack. That production was opposed. The basis of opposition was an assertion on behalf of each of the persons named that particular documents sought on the application were the subject of legal professional privilege.

3    For that purpose reliance was placed upon an affidavit of a solicitor, Ms Denise O’Reilly, made on 12 February 2021. Ms O’Reilly is the principal solicitor in a firm known as O’Reilly Workplace Lawyers (OWL). In her affidavit Ms O’Reilly deposed:

6.    On or about 18 November 2020, OWL directly engaged Mr Hartnett:

a)    to investigate allegations that the Applicant raised against the Respondent in his application to this proceeding, filed with the Commission on 28 September 2020 (Application), that the Respondent had engaged in repeated, unreasonable behaviour toward him that caused a risk to his health and safety (Applicant’s Allegation); and

b)    to determine whether the Applicant’s Allegations are substantiated; and

c)    if any or all of the Applicant’s Allegations are substantiated, whether they amount to bullying (as defined under s.789FD of the Fair Work Act 2009 (Cth)) or other unlawful conduct,

so that OWL could provide legal advice to Seahill regarding those findings and potentially make use of the findings in this proceedings.

7.    The reasons for OWL engaging Mr Hartnett were stated in OWL’s engagement letter to Mr Hartnett, which is subject to legal professional privilege. However, if the Commission requires a copy of Mr Hartnett’s engagement letter to determine whether documents listed in paragraph 12 below are subject to legal professional privilege, OWL is willing to produce a copy of the letter to the Commission only on a strictly confidential basis, on the condition that doing so will not waive privilege over that letter, Mr Hartnett’s investigation, or any other communication relating to that process.

8.    The purpose of Mr Hartnett’s engagement and that he was engaged directly by OWL was confirmed in a letter from me to the Applicant’s solicitors on 23 December 2020, in which I also stated that documents that had requested from Mr Hartnett were subject to legal professional privilege and would not be provided. Annexed and marked “DLO-1” is a copy of the letter dated 23 December 2020.

9.    On or about 23 November 2020, OWL directly engaged Stephen Mackie (Barrister) for the purpose of investigating allegations raised by former employees of Seahill against the Applicant (Ex-Employee Allegations) to determine whether the Applicant engaged in misconduct and so that OWL could provide legal advice to Seahill regarding those findings.

10.    The reasons for OWL’s engagement for Mr Mackie were stated in OWL’s engagement letter to Mr Mackie, which is subject to legal professional privilege. However, if the Commission requires a copy of Mr Mackie’s engagement letter to determine whether documents listed in paragraph 12 below are subject to legal professional privilege, OWL is willing to produce a copy of the letter to the Commission only on a strictly confidential basis, on the condition that doing so will not waive privilege over that letter, Mr Mackie’s investigation, or any other communication relating to that process.

4    On 15 February 2021, Commissioner Simpson’s associate sent to those representing the various interested parties including, notably, Mr G. Rebetzke of counsel who appeared by leave for Mr Stephen and is presently, with Mr Jennings QC, appearing for Mr Stephen – an email in which the following was stated:

The Commissioner has decided at this stage that he does not intend to require Ms O’Reilly and Ms McCormack –

and, I interpolate, Ms McCormack had also made an affidavit in respect of privilege –

to be available for cross-examination today. For the purpose of today the Commissioner intends to hear submissions on whether cross-examination is necessary and on the applications themselves. The Commissioner requests that the Respondents to the application produce the documents referred to at paragraphs 7 and 10 of the Affidavit of Ms O’Reilly to the Commissioner’s chambers on a confidential basis.

5    It will be apparent from the terms of the email just quoted that a statement in the concise statement signed on behalf of Mr Stephen and settled by his present counsel that:

Without notice to the applicant the Commission apparently requested a copy of the letters engaging Mr Hartnett and Mr Mackie (the engagement letters) and had regard to them.

is not, given the express signification to Mr Rebetzke of counsel in the email just quoted, accurate.

6    On 24 February 2021, having heard submissions, the Industrial Commission made orders which upheld various claims for privilege. The Industrial Commission, in so doing, recognised that an objection which might be taken to production as required under s 590 of the FW Act was a claim for legal professional privilege.

7    Mr Stephen then sought permission from the Full Bench to appeal against the Industrial Commission’s decision. On 12 May 2021, for reasons given that day, the Full Bench (Vice President Hatcher, Deputy President Dean, Commissioner Platt) made the following orders:

We order as follows:

(1)    Permission to appeal is granted.

(2)    Insofar as the Commissioner upheld the claims of legal professional privilege with respect to the documents in categories 2(a) and 5, the appeal is dismissed.

(3)    Insofar as the Commissioner upheld claims of legal professional privilege with respect to the documents in categories 1, 2(b)-(c), 3, 4, 6, 7, 8, 9, 10, 11, 12, 13 and 14, the appeal is upheld.

(4)    If a claim of legal professional privilege is made by Seahill in respect of categories 8, 9 and 13, the Commissioner shall determine that claim consistent with our reasons for decision.

(5)    The Commissioner shall determine the claims of legal professional privilege in respect of the documents in categories 1, 2(b)-(c), 3, 4, 6, 7, 10, 11, 12 and 14, to the extent that these claims are pressed.

8    Mr Stephen has now applied to this Court in the exercise of the original jurisdiction conferred upon it by s 39B of the Judiciary Act 1903 (Cth) for relief in the nature of what these days is termed “the constitutional writs” of certiorari and mandamus, bringing up for quashing the decision of the Full Bench with a consequential mandamus requiring the Full Bench to exercise its jurisdiction according to law. As pleaded, the grounds of review are as follows:

1    An order that the decision of the Full Bench of the Fair Work Commission dated 12 May 2021 be quashed.

2    A writ of mandamus directed to the Fair Work Commission requiring a Full Bench to hear and determine the Applicant’s appeal according to law.

3    Costs.

9    Of these grounds, grounds 2 and 3 were expressly abandoned.

10    Before turning to the remaining grounds, it is desirable to describe the nature of the jurisdiction which falls to this Court, constituted for this purpose as a Full Court, to exercise.

11    Firstly and axiomatically, this Court is not exercising appellate jurisdiction of any kind with respect to the decision of the Full Bench. The position was definitively stated in the High Court in Craig v South Australia (1995) 184 CLR 163 (Craig), at 175, in the following statement:

Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing … of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error …

[footnote references omitted]

12    A Full Court of this Court, in Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385 (Bianco Walling), at [110] – [113], conducted a detailed survey of relevant authority in relation to the review for jurisdictional error of a decision of a Full Bench. It is not necessary again to rehearse all of what is there stated, but some reference to authorities cited in that survey and, in turn, to cases referred to in those authorities is nonetheless helpful.

13    One such authority is Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470 (Marks) in which, in the context of an application for an extension of time within which to apply for an order nisi for constitutional writs directed to the Industrial Commission, McHugh J made a number of, with respect, pertinent observations. His Honour referred to what is still a definitive authority in relation to the nature of the jurisdiction exercised by a Full Bench of the Commission, namely, Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194. His Honour then stated, at [23] and [24]:

The Full Bench’s role in the applicant's section 45 appeal was to ascertain whether or not Jones C had made an error in dismissing the applicant’s application under s 170CE. As Gleeson CJ, Gaudron and Hayne JJ noted in Coal and Allied, an appeal under s 45 “is properly described as an appeal by way of re-hearing” … and the powers under s 45(7) “are exercisable only if there is error on the part of the primary decision maker”.

14    The same is applicable with respect to the jurisdiction consigned to the Full Bench vis-a-vis the decision of the Industrial Commission in this matter. McHugh J continued, at [23]:

This is so “regardless of the different decisions that may be the subject of an appeal under s 45”.

15    His Honour continued, at [24]:

In my view, there can be no doubt that the Full Bench understood that its function was to ascertain whether or not Jones C had made a relevant error. The Full Bench considered the applicant's grounds of appeal, and concluded that, in respect of each of them, Jones C did not relevantly err. If the Full Bench was wrong to reach this conclusion, then that was an error within jurisdiction.

[footnote references omitted – emphasis added]

16    The observations made by McHugh J in Marks were quoted with approval by Buchanan J in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78, at [57]. In turn, in the survey of authority and cases quoted in those authorities in Bianco Walling, one finds this observation in relation to the review on jurisdictional error grounds of decisions of inferior courts and tribunals. In Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416, at 420, Jordan CJ stated:

… I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply “a wrong and inadmissible test”; or to “misconceive its duty,” or “not to apply itself to the question which the law prescribes”; or “to misunderstand the nature of the opinion which it is to form” … in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law.

[references omitted]

17    Applying these principles to the case presently to hand, what does that yield? Ground 1 asserts illogicality, irrationality or unreasonableness on the part of the Full Bench. When one looks to the reasons of the Full Bench for upholding or, as the case may be, not upholding claims as made for legal professional privilege, one finds the following reasoning under the heading “Were the Hartnett investigation documents privileged?”:

[67]    We consider that, to the extent that the Commissioner upheld Seahill’s claim for legal professional privilege, he was correct to do so. The Commissioner was correct to identify the correspondence passing between OWL and Mr Hartnett which commissioned Mr Hartnett to undertake his investigation as providing the proper basis upon which to identify the dominant purpose of that investigation. The instructions from OWL upon which Mr Hartnett, as counsel, acted in conducting his investigation disclose in our view the actual basis upon which it proceeded, notwithstanding what was subsequently represented to Mr Stephen as the purpose of the investigation. Those instructions disclose, in each case, that the only purpose for the investigation (and the creation of documents in connection with the investigation) was to assist OWL to provide legal advice to Seahill and potentially to assist in the conduct of the anti-bullying proceedings. This made legal professional privilege squarely applicable.

[68]    As Mr Stephen submitted, a number of the representations made to him by OWL and Ms McCormack about the purpose for the Hartnett investigation were inconsistent with them having the dominant purpose of providing legal advice. The inconsistent representations in this respect were:

(1)    On 30 November 2020, OWL represented to Mr Stephen that the investigation was being conducted in accordance with directions made by the Commissioner.

(2)    On 8 December 2020, FHRI represented to Mr Stephen that the investigation was for the purpose of investigating Mr Stephen’s bullying allegations.

(3)    On 8 December 2020, OWL represented to the Commission that the investigation was an independent one undertaken in accordance with the purpose of the Commissioner’s adjournment of the proceedings.

(4)    On 8 December 2020, FHRI also represented to Mr Stephen that the investigation was an independent one for the purpose of investigating Mr Stephen’s bullying allegations, was required pursuant to the WHS Act, and was an investigation of an internal workplace matter.

(5)    On 8 December 2020, FHRI also represented to Mr Stephen that the investigation was required by Seahill’s Workplace Bullying/Harassment Policy, was independent, and was a normal workplace investigation.

(6)    On 9 December 2020, OWL represented to the Commission that the investigation was conducted in accordance with Seahill’s Workplace Bullying/Harassment Policy, and was independent.

(7)    On 10 December 2020, FHRI represented to ABL that the investigation was regarding Mr Stephen’s employment and related solely to the allegations raised by him.

(8)    On 11 December 2020, OWL represented to ABL that the investigation was being conducted pursuant to, in effect, a direction of the Commission referable to s 789FF(2)(a) of the FW Act, was conducted in accordance with Seahill’s Workplace Bullying/Harassment Policy, and was independent.

(9)    On 14 December 2020, OWL represented to ABL that the investigation was independent and in accordance with Seahill’s Workplace Bullying/Harassment Policy.

(10)    On 22 December 2020, OWL represented to ABL that the sole purpose of the investigation was to determine whether Mr Stephen’s bullying allegations could be substantiated in accordance with the Commissioner’s purpose in adjourning the matter and was objective.

[69]    It was only in response to contentions advanced on behalf of Mr Stephen by ABL that the investigation had a mixed purpose and that documents created in the course of the investigation were not privileged that OWL disclosed (on 17 December 2020 and 23 December 2020) that the investigation was for the purpose of providing legal advice and to assist in the conduct of the litigation.

[70]    We make the following observations about these representations we have set out in paragraph [68] above. First, they were not consistent with the true basis upon which Mr Hartnett had been commissioned by OWL to undertake his investigation, as we have earlier described it, and to that extent were misleading.

[71]    Second, a number of the represented purposes, if they were in fact the true and dominant purpose, would not be protected by legal professional privilege. If the investigation was undertaken for the dominant purpose of consideration under s 789FF(2)(a), it clearly could not have been intended to be confidential because the provision is predicated on the outcomes of the investigation being made known to the Commission. Further, if the dominant purpose was to conduct a fair, independent and transparent investigation pursuant to Seahill’s Workplace Bullying/Harassment Policy, there is no reason to consider that communications contained in documents associated with such an investigation were privileged merely because the investigation was being undertaken by a lawyer. As the AIRC Full Bench said in Brown v BlueScope Steel Limited, “[t]here is a very real difference between an independent inquiry and the provision of legal advice to a client”. A procedurally fair workplace investigation initiated by an employer the outcome of which is intended to be made known to relevant employees in the workplace and which is to lead, where necessary, to corrective or disciplinary action is not one which ordinarily has a purpose confidential to the employer. We note that in his decision, the Commissioner paraphrased a statement made in Bowker v DP World Melbourne Limited when he stated the proposition that “Seahill is entitled to elect to conduct workplace investigations in a manner that ensures the product of that investigation is the subject of legal professional privilege or client legal privilege”. That proposition was criticised by Mr Stephen on the basis that an employer cannot “elect” to cloak a workplace investigation in privilege where it does not have the requisite dominant purpose. However, Bowker makes it clear that the type of workplace investigation being referred to in the paraphrased statement is one that has the provision of legal advice as its dominant purpose. Bowker is not to be read as standing for the proposition that a workplace investigation which does not have the provision of legal advice and/or the provision of legal services in connection with litigation as its dominant purpose may nonetheless be subject to legal professional privilege merely on the basis that the investigation is undertaken by a lawyer.

[72]    Third, it is apparent to us that the misleading representations about the purpose of the Hartnett investigation were made disingenuously for the purpose of justifying the purported employment direction to Mr Stephen that he submit himself to a compulsory interview with Mr Hartnett, at pain of dismissal. We do not consider that Seahill could, pursuant to its employment contract with Mr Stephen, issue him a binding direction to assist its lawyers in providing it with legal advice concerning its defence of litigation which Mr Stephen had himself initiated. A direction of this nature would not be lawful or reasonable, since the contemplated compulsory interview would amount to an extra-curial interrogatory or deposition process under which Mr Stephen could be required, contrary to his legal interests in the litigation, to make admissions or to disclose confidential information in an unprotected way. It was obviously convenient for Seahill to mischaracterise the dominant purpose of the investigation in a way which provided a proper foundation for the direction to attend the interview. It may be accepted that if the purpose of the engagement of Mr Hartnett by Seahill was to conduct a fair, independent and transparent investigation of the type discussed in the preceding paragraph, then it would have been lawful and reasonable to direct that Mr Stephen undergo an interview for the purpose of that investigation. However, as we have earlier found, the engagement of Mr Hartnett was not for that purpose.

[footnote references omitted]

18    The Full Bench then addressed, at [73] – [76], the subject of whether privilege had been waived. In the course of an exchange with senior counsel for Mr Stephen, the following was established:

(a)    The Full Bench had not misunderstood that its task was, firstly, to decide whether to grant permission to appeal and, if so, to exercise a jurisdiction not materially different to that described in Coal and Allied Mining Services, in other words, to conduct a re-hearing and to decide by reference to grounds of appeal whether or not the Industrial Commission’s decision was attended with error. To that extent, therefore, and having regard to the authorities to which I have made reference concerning review of a Full Bench decision, there is no jurisdictional error.

(b)    It was also conceded that the Full Bench had correctly apprehended that legal professional privilege was a basis for resisting production pursuant to s 590 of the FW Act.

(c)    Yet, further it was conceded that the Full Bench was not operating under any mistake of law as to the requirement, as the law presently stands, that the dominant-purpose test be applied in deciding a claim for legal professional privilege.

(d)    Likewise, it was conceded that the Full Bench correctly apprehended that such privilege might be waived.

19    Perhaps appreciating the several concessions, it was then put that the consequential findings of fact made by the Full Bench, namely, that the claim insofar as it was upheld was a good one in the sense that the dominant-purpose test was satisfied and that there had been no waiver of privilege, was nonetheless attended with irrationality or illogicality or was unreasonable.

20    It was accepted, as it most certainly had to be, that unreasonableness in this context was a very high bar indeed over which Mr Stephen needed to jump. The difficulty about this is that Ms O’Reilly was not, before the Industrial Commission, the subject of any cross-examination or any gainsaying on behalf of Mr Stephen as to the course which Commissioner Simpson had proposed and which the Commissioner followed. Her affidavit was, on its face, by an absence of cross-examination, accepted.

21    It was also not made controversial before Commissioner Simpson that there was some procedural fairness entailed in the Commissioner looking to two key documents, themselves the subject of a claim for privilege, in order to satisfy himself one way or the other with respect to the claim and the assertion made in Ms O’Reilly’s affidavit. In itself, Commissioner Simpson was not promoting an unorthodox practice.

22    In AWB Ltd v Cole (2006) 152 FCR 382, at [116], Young J stated:

116    Exhibit 665 is a confidential exhibit to Mr Zwier’s affidavit of 5 April 2005. The exhibit was not made available to the respondents. It is well recognised that a court may examine a document over which privilege is claimed in order to ascertain whether the nature and content of the document supports the claim to legal professional privilege. In Grant v Downs, Stephen, Mason and Murphy JJ stated (at 689):

The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence.

See also Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246 per Lockhart J.

23    It was submitted, however, for Mr Stephen that this went further than looking at a document the subject of a claim for privilege, but extended to the foundation instructions which then informed the decision as to the various categories of documents flowing from the instructions to counsel.

24    The difficulty about that is that the document itself was the subject of a claim for privilege. Further, and at the risk of repetition, there was no gainsaying of the course proposed. Yet, further, by the time the proceeding came before the Full Bench, there was no ground of appeal at all in respect of any error made in the Industrial Commission constituted by the Commission’s referring to these particular letters.

25    By that stage, each of the parties, Mr Stephen included, had the benefit of Commissioner Simpson’s observations about the evidence, including those letters. Before the Full Bench, counsel for Mr Stephen, then also Mr Rebetzke, sounded an interrogative note as to whether the Full Bench had access to the same documents. There was no affirmative statement or negative statement made by the Full Bench; it was but a rhetorical question by counsel in the course of submissions. Again, however, there was no gainsaying of any ability to look to these documents.

26    All that occurred here, if one looks to the passage of the Full Bench’s reasons quoted, is that a factual value judgment was made as to what was the dominant purpose. It is not for us, as Craig reminds us, to express what view any of us may have reached had such a decision been consigned to us. Rather, our task is to recognise that the Full Bench engaged on a lawful process and made findings of fact which were open to it on the evidence.

27    If one reaches the view, as the Full Bench so obviously did, that there was an element of disingenuousness with respect to certain correspondence, all one is left with is evidence which supports a dominant purpose of bringing documents into existence for the purpose of obtaining legal advice or use in litigious proceedings. Recalling what was said by Jordan CJ so long ago, there are mistakes and mistakes. If this be a mistake – and I expressly refrain from intruding on that subject – whatever mistake the Full Bench made was a mistake within jurisdiction.

28    The Full Bench correctly understood the appellate jurisdiction consigned to it under the FW Act. It correctly understood legal professional privilege was a basis for resisting production, and it correctly understood that such privilege could be waived. In respect of waiver, also, all that the Full Bench did, for reasons which are perfectly rational, was to decide that there had been, as a matter of fact, no waiver. Once again, if that be a mistake – and I expressly refrain from embarking on a consideration of that – it too was a mistake within jurisdiction.

29    What necessarily follows from the foregoing is that ground 1 has no merit. It is convenient also in this context to move forthwith to the asserted denial of procedural fairness. This, with respect, is something of a straw man, having regard to the express notice to Mr Stephen in the Industrial Commission before the hearing as to the course upon which Commissioner Simpson proposed to embark and the absence both before Commissioner Simpson and the Full Bench of any gainsaying whatsoever of this course.

30    As I have already mentioned, by the time the proceedings reached the Full Bench, Mr Stephen could have no doubt, having regard to the Commissioner Simpson’s reasons, as to an apprehended symmetry between the letters referred to in Ms O’Reilly’s affidavit and the statement she made in that affidavit. True it is that there were reasons, and they were pressed before the Industrial Commission and the Full Bench, upon which one might reach a different view as to dominant purpose, but these were questions of fact for resolution in the Industrial Commission and, in turn, in the Full Bench.

31    There was no denial of procedural fairness to Mr Stephen in relation to the decision of the Full Bench.

32    That leaves for consideration whether or not there was in the orders made by the Full Bench – in particular order 4 – an order which extended beyond the powers consigned to the Full Bench by s 607 of the FW Act. Materially, s 607(3) provides:

(3)    The FWC may do any of the following in relation to the appeal or review:

(a)    confirm, quash or vary the decision;

(b)    make a further decision in relation to the matter that is the subject of the appeal or review;

(c)    refer the matter that is the subject of the appeal or review to an FWC Member (other than an Expert Panel Member) and:

(i)    require the FWC Member to deal with the subject matter of the decision; or

(ii)    require the FWC Member to act in accordance with the directions of the FWC.

33    Before Commissioner Simpson, there was an omnibus objection claiming privilege in respect of the several applications for production under s 590 of the FW Act. The analysis of the Full Bench reveals a conclusion that particular claims for privilege, if they were to be upheld, had to be claimed by particular persons. All the Full Bench did was to order as Commissioner Simpson could have done – to stand-over the application so that an appropriate claim, if so advised, be made by an appropriate person.

34    It is quite plain from the objection and the categories which are the subject of order 4 that those categories of documents were always controversial before the Industrial Commission on the basis of legal professional privilege. All that the Full Bench’s order does is to recognise that this was subject matter of the proceeding and to consign to the Industrial Commission, in the event that the claim is made by someone, so advised and entitled, whether, having regard to the Full Bench’s reasons, the privilege claim should be upheld.

35    The order sought to be impugned was one which, as I have mentioned, could have been made in the original jurisdiction and it was open under s 607 of the FW Act either to vary the orders or to make the particular order pursuant to s 607(3)(c) requiring the Industrial Commission to deal with the matter. What follows from the foregoing, then, is that none of the grounds which were pressed has any merit. I would therefore dismiss the application.

36    I also consider it necessary to make some observations in relation to matters of practice and procedure which have attended the preparation of this proceeding. On 14 December 2021, a registrar of the Court made orthodox directions by reference to practice note APP2 and, also, practice note SMIN-5 with respect to various interlocutory steps. These notably included the filing in accordance with those directions of an application book. Such an application book was not filed until today, the very day appointed for the hearing of the application.

37    The active party respondents (the Commission, of course, appropriately being a submitting party) took the eminently pragmatic course of not raising any particular forensic embarrassment. That is not to say that the lapse did not resonate in terms of the ability of the members of the Court readily to assimilate from the written submissions exactly what were the issues of law and fact.

38    I am well aware from earlier case management and having regard to an affidavit made by the solicitor for Mr Stephen that there were some technological interface issues with the Court’s electronic court file and, for that matter, with the Registry in terms of the settling of a draft index. But, with all due respect, a solicitor must pursue the Registry in the event that, for some reason or another, non-responsiveness might lead to a failure to comply with interlocutory directions.

39    It appears to me that there has been a most lamentable lapse, both on the part of the applicant’s solicitor as well as within the Registry, with respect to the compliance with the interlocutory directions. It is to be expected that this lapse will not be repeated. Fortunately, it has not occasioned any practical injustice.

COSTS

40    At the conclusion of the Court’s delivery of reasons for judgment and pronouncement of the order dismissing the application, the active party respondents, being the first and second respondents, applied for an order for costs, relying in that regard on both s 570(2)(a) and s 570(2)(b) of the FW Act.

41    As developed in oral submissions, it became apparent, however, that the true foundation for the application was not s 570(2)(a), but rather 570(2)(b). That is because even taking into account, as was pressed for these respondents, the abandonment of grounds 2 and 3 of the application, that did not have the necessary consequence at all that the application would never have been instituted, much less that it was instituted vexatiously or without reasonable cause.

42    Some observations made by earlier Full Courts with respect to costs, even though expressly directed to cases arising under s 570(2)(a), do also, in my view, have resonance with respect to an application under s 570(2)(b). In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) (2015) 230 FCR 337, at 345, [19], the Full Court observed:

It is in the nature of an exercise of judicial power that an outcome has a clarity in hindsight that it may not have in prospect.

43    With respect to this proceeding, the lapse in compliance with interlocutory directions referred to in my reasons did have the consequence that the respondents were obliged to attend a directions hearing that, but for the failure to comply with the directions, would not have been visited upon them. Accepting, as I do, that there was some failure perhaps of a technical systemic nature, perhaps more than that, in the Court’s Registry, nonetheless the position which prevailed was that the solicitors for the applicant were not, as they should have been, proactive in ensuring that so much of the task that fell to the Registry to undertake was undertaken prior to critical interlocutory dates.

44    That, in turn, had the consequence of a need, with the hearing of the application imminent, to ascertain exactly when an application book overdue for filing was to be filed. This to me is a paradigm example of a circumstance falling within s 570(2)(b) of visiting upon a party costs without reasonable cause.

45    The making of considered forensic value judgments as to which grounds of a judicial review application or an appeal, for that matter, to press and deciding not to press points considered by counsel not, on reflection, to be reasonably arguable is to be encouraged.

46    What is not to be encouraged is the making of such forensic value judgments just at the start of oral argument. In this case, Mr Stephen had the benefit of a very considered written outline of submissions. Indeed, that outline addressed, materially, what was said to be the flaws in grounds 2 and 3. Faced with that particular outline and bearing in mind the duties which fall on all of those litigating in this Court as specified in s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth), it is to be expected that particular points would be abandoned much earlier than on the very day of hearing.

47    The consequence of the late abandonment has been that the respondents' preparation for the hearing has necessarily had to embrace some work which has proved to be wasted. Looking at the outlines of the submissions and the grounds of review, and bearing in mind that a robust assessment is to be preferred to the detailed and time consuming analysis that might be otherwise undertaken by reference to particular hours spent on particular points, it seems to me that the fairest way of recognising what, in my view, was an unreasonable visitation of costs on the first and second respondents is to make an order which allows the first and second respondents 40% of the costs of preparation for the hearing as incurred after service on the applicant, Mr Stephen, of the respondents’ outline of submissions.

48    For these reasons the orders I would make, being of the view that s 570(2)(b) of the FW Act is engaged, are these:

(1)    The applicant pay the following costs of the first and second respondents:

(a)    the costs of and incidental to the directions hearing conducted on 9 February 2022; and

(b)    40% of the first and second respondents’ costs incurred following the service on the applicant of the first and second respondents’ outline of submissions;

in each instance such costs to be fixed by a Registrar if not agreed by the parties.

Associate:    

Dated:    17 May 2022

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

ANDERSON J:

49    I agree with the reasons for judgment given by the learned presiding judge. Each of the grounds pressed must be rejected and the application dismissed.

50    I agree with the reasons of Justice Logan and with the orders proposed.

Associate:    

Dated:    17 May 2022

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

DOWNES J:

51    I agree with the reasons of Justice Logan and with the orders proposed.

Associate:    

Dated:    17 May 2022