FEDERAL COURT OF AUSTRALIA

Betfair Pty Limited v Racing New South Wales (No 8) [2009] FCA 1161

PRIVILEGE – whether one party can claim legal professional privilege over a document that discloses a communication over which another party may have privilege

Held: the fact that the client’s question incorporates or refers to a communication over which another person may have a privilege does not deprive the client of his or her privilege

Betfair Pty Limited v Racing New South Wales (No 7) [2009] FCA 1140

Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501

BETFAIR PTY LIMITED (ACN 110 084 985) v RACING NEW SOUTH WALES (ABN 86 281 604 417) and HARNESS RACING NEW SOUTH WALES (ABN 16 962 976 373)

NSD 1566 of 2008

JAGOT J

12 OCTOBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The orders made on 8 October 2004 be varied by inserting as an item under the heading “Exhibit CM1” in Order 1 the following:

Document 24: the parts highlighted pink in Exhibit CM1.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                          On 8 October 2009 I delivered reasons and made orders in Betfair Pty Limited v Racing New South Wales (No 7) [2009] FCA 1140 concerning the status of certain documents as privileged or not from production.  In respect of part of one document, document 24 in Exhibit CM1, I gave the parties leave to file further submissions.  I did so because the second page of the document appeared to involve the disclosure of legal advice to the respondents rather than the State of NSW.  The respondents, however, had made no claim for privilege over that document.  The categories of privilege on which the State relied also did not appear to be engaged.

2                          The State of NSW and the applicant, Betfair Pty Limited (Betfair), took the opportunity to make further submissions.  The respondents (which I refer to collectively as Racing NSW) did not.  The State submitted that it had the benefit of legal professional privilege over the second page of the email.  The State submitted that as I was satisfied that the response to the questions on the first page of the email was privileged (see Betfair (No 7) at [63]) I should also be satisfied that the questions are privileged; that the client’s question incorporates or refers to a communication over which another person may have a privilege does not deprive the client of his or her privilege.  Betfair submitted that to reach this conclusion I would have to be satisfied that the communication into which the legal advice to Racing NSW had been incorporated was for the dominant purpose of the State obtaining its own legal advice (citing Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501). 

3                          The State’s submission, on analysis, is consistent with the proposition Betfair puts about the relevance of Propend.  The State’s submission is that in circumstances where I have found that Parliamentary Counsel gave legal advice to the State it must follow that the questions put to Parliamentary Counsel were for the requisite dominant purpose of obtaining legal advice.  The fact that those questions include a disclosure of legal advice to another entity, Racing NSW, does not affect their status as questions for the required dominant purpose as a communication between the State (as the client) and Parliamentary Counsel (as the lawyer).  

4                          The logic of the State’s submissions is compelling.  I am thus satisfied that the State (via Mr Marzic) sought legal advice from the Parliamentary Counsel’s Office on the second page of document 24 in Exhibit CM1. 

5                          It follows that I need to vary the order I made on 8 October 2009 to exclude from the requirement for production in order 1 the reference to the parts highlighted pink on document 24 in Exhibit CM1.

Associate:

Dated:         12 October 2009