FEDERAL COURT OF AUSTRALIA

Primmer v Alfred [2008] FCA 485

PETER PRIMMER AND FORRESTRY CONSTRUCTION v GREGORY CHARLES ALFRED

NSD 325 OF 2008

ALLSOP J

11 APRIL 2008

SYDNEY

THE COURT ORDERS THAT:

1.         The application for leave to appeal be refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                          This is an application for leave to appeal from orders made by a Federal Magistrate refusing a challenge to the claim for privilege made by the respondent to this application.  The matter arises out of proceedings brought under the Workplace Relations Act 1996 (Cth) against the applicants to this application by Gregory Charles Alfred, who is a building construction inspector, alleging contraventions of the Workplace Relations Act in relation to a building project at Kiama.  The detail of the claims are not necessary to deal with here.

2                          Discovery had been sought and apparently given.  Part of the list of documents prepared on behalf of Mr Alfred concerns documents over which privilege is claimed.  The various classes of privilege are set out in the careful reasons of the Federal Magistrate and involve documents concerning an earlier dispute, in respect of which the Federal Magistrate found that legal advice was sought and provided in relation to this dispute.

3                          The parties have filed helpful submissions, for which the Court is grateful.  Those submissions will remain on the file and their clarity relieves me of the obligation of setting out in detail the respective contentions of the parties as to the reasons of the Federal Magistrate.  It is clear from the reasons of the Federal Magistrate and from the submissions of counsel today that the dispute before the Federal Magistrate was whether or not litigation was reasonably contemplated at the time of the creation of the documents in respect of which privilege is claimed and whether the documents were created for the purpose of that anticipated litigation, or whether Mr Alfred was still in investigation mode, thereby denying the dominant purpose of the documents for the purpose of anticipated litigation.

4                          The issue was apparently hard-fought below, including cross-examination of witnesses, and the Federal Magistrate, having heard the witnesses and looked at the documents, including the privileged documents in question, was satisfied that the documents were created for the dominant, if not the sole, purpose of anticipated litigation.

5                          In relation to the documents concerning the earlier dispute, likewise, there was argument and the Federal Magistrate concluded that the documents were created with the relevant purpose.  I have read his Honour’s reasons with some care and attended to the submissions of counsel for both sides.  By and large, for the reasons set out in the respondent’s outline of submissions, I am not able to come to the view that the reasons of the learned Federal Magistrate are attended with sufficient doubt to warrant leave to appeal.

6                          Further, the question of prejudice was argued by the parties.  What, in effect, is sought is discovery of other people’s statements about the events giving rise to the dispute before the applicants file their evidence.  The respondent relied on some extracts from ABB Power Transmission Pty Limited (in liq) v Australian Competition and Consumer Commission [2003] FCAFC 261.  I do not need to rely upon that decision.  In my view, there is no substantial and necessary injustice in being deprived of the documents.  Presumably at some point prior to the trial, if not already, the applicants will be apprised of the evidence that is to be led against them in support of the asserted contravention.  At that point that evidence will be able to be led. 

7                          It is a commonplace reality in litigation that persons have matters that they have prepared for litigation in their briefs which may or may not be deployed.  The fairness of these proceedings will no doubt be under the controlling hand of the Federal Magistrate for appropriate timetabling and I do not see any particular injustice even if I were wrong about the lack of attendance of doubt on the learned Federal Magistrate’s reasons.

8                          For those reasons I would refuse the application for leave to appeal.

9                          I would also add in relation to the prejudice argument, that in a case such as this, assuming it to be one in which there will be a hotly contested body of material about what happened on a particular day, merely because statements obtained by one side from third parties are not privileged does not mean parties to the litigation are entitled to access to them.  There is ample authority to enable discretion to be exercised to withhold access to documents until both sides have put on their own unalloyed evidence as to what occurred.

10                        For those reasons the orders of the Court will be that the application for leave to appeal be refused.

Associate:

Dated:         17 April 2008