Federal Court of Australia

Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 5) [2023] FCA 1098

ORDERS

THE COURT ORDERS THAT:

1.    Mr Elvin’s interlocutory application dated 21 July 2023 (as amended by grant of leave ordered by Katzmann J on 21 August 2023) be dismissed.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

RAPER J:

1    This application came before me as duty judge. I give my reasons ex tempore given this interlocutory application seeking copies of unredacted documents is made shortly prior to the resumption of the substantive hearing of this matter to determine whether penalties should be ordered.

2    Judgment on the question of liability in this matter was handed down by Katzmann J in Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242 (Liability Decision) on 14 October 2021. Her Honour found that the applicant (Ombudsman) had established multiple breaches of the Fair Work Act 2009 (Cth) by the first respondent (FTM), all but one category (namely payslip-related contraventions) of which the second respondent (Mr Elvin) was knowingly concerned in, and some of which the third respondent was also knowingly concerned in.

3    By interlocutory application dated 21 July 2023, Mr Elvin applies for orders requiring the Ombudsman to produce unredacted copies of email chains between Lara Hurrell, Luke Thomas, George Raptis and others dated as follows:

(1)    26 March 2018;

(2)    11 and 12 April 2018;

(3)    17 April 2018;

(4)    24 May 2018;

(5)    28 May 2018; and

(6)    4 April 2018

(together, the 2018 documents).

4    Katzmann J granted leave on 21 August 2023 for Mr Elvin to amend his interlocutory application to require the applicant to produce the additional documents described in the objection schedule to which reference was made in order 1 of the orders made by Registrar Lackenby on 17 August 2023. The effect of this was that emails of the following dates were included in Mr Elvin’s interlocutory application:

(1)    6 August 2019;

(2)    7 August 2019;

(3)    12 August 2019; and

(4)    13 August 2019

(together, the 2019 documents).

5    The documents that are the subject of Mr Elvin’s application are emails over which the Ombudsman has made claims of privilege and which the Ombudsman has partially redacted.

6    The 2018 documents were produced on 2 September 2020 in response to a Notice to Produce filed and served by Mr Elvin and dated 29 July 2020. They were produced with a schedule detailing the nature and basis of the Ombudsman’s objection to producing each of the documents over which it claimed privilege, including five out of the six emails referred to in Mr Elvin’s application. One document, the email dated 28 May 2018, was produced in unredacted form. On 3 September 2020, Registrar Lackenby made an order granting the respondents, including Mr Elvin, access to the material produced by the Ombudsman that was not the subject of privilege claims. The emails involved correspondence between lawyers working at the Ombudsman’s office and inspectors also working at the Ombudsman’s office.

7    The 2019 documents were produced on 17 August 2023 in response to a Notice to Produce filed and served by Mr Elvin and dated 2 August 2023. They were also produced with a schedule detailing the nature and basis of the Ombudsman’s objection to producing each of the documents over which it claimed privilege, which amounted to all of the documents that Mr Elvin seeks in unredacted form. The emails involved correspondence between lawyers working at the Ombudsman’s office, inspectors also working at the Ombudsman’s office and union officials of United Voice, a trade union that existed at the time that the emails were sent but which has since been dissolved.

Evidence

8    Mr Elvin relied on three affidavits in relation to this application, affirmed on 21 July 2023, 10 August 2023 and 5 September 2023.

9    The Ombudsman relied on one affidavit of Ms Brodie Smith affirmed on 18 August 2023, two affidavits of Mr Myles Vincent affirmed on 18 August 2023 and 31 August 2023 respectively, and one affidavit of Mr Luke Thomas affirmed on 31 August 2023. All of the Ombudsman’s witnesses were required for cross-examination and gave evidence before me today.

Summary of submissions with respect to the 2018 documents

10    Four contentions appear to form the substance of Mr Elvin’s submissions with respect to the 2018 documents. First, he submitted that no privilege attaches to the 2018 documents because they are not communications between solicitor and client and they were not prepared for the dominant purpose of providing legal advice and instead concern strategy and tactics in the litigation. Second, no privilege attaches to the 2018 documents because they were made in furtherance of an illegal purpose, being an allegedly unlawful decision not to allege that Mr Ruben Benting had, along with the other massage therapists, paid money back from his wages to FTM but to nevertheless put on prejudicial evidence relating to this conduct. In essence, it appears to be Mr Elvin’s claim that the Ombudsman relied on the evidence of Mr Benting, together with evidence of certain of the group of six employees, in circumstances where it did not ultimately make allegations as against the respondents with respect to their evidence because the Ombudsman understood that evidence to be untruthful or unreliable. Third, the Ombudsman acted inconsistently with the maintenance of privilege over the 2018 documents by disclosing that she made a “forensic choice” not to make allegations in respect of Mr Benting (J[532]) (Mr Elvin submitted that there was a prima facie basis to infer that the emails included the reasons for this choice). Fourth, the Ombudsman’s privilege claim is a technical defence contrary to the Legal Services Directions 2017 (Cth) Appendix B—The Commonwealth’s obligation to act as a model litigant, para 2(g).

11    Mr Elvin made additional submissions with respect to parts of the Evidence Act 1995 (Cth). As the Ombudsman submitted, Mr Elvin’s application is concerned with the disclosure and inspection of documents produced at an interlocutory stage in the proceedings and not whether to admit documents into evidence, and is therefore to be determined in accordance with the common law rather than under the Evidence Act.

12    The Ombudsman submitted that, with respect to the 2018 documents, the application should be dismissed on the following bases. First, she submitted that the documents are not relevant to any issue left to be determined. It is my view that this is a matter that is not appropriate for me to determine and ultimately will be a matter to be determined by Katzmann J in the event that I ultimately conclude that any of the documents are not properly the subject of the claims of privilege. Second, the Ombudsman wishes to maintain her legal advice and litigation privilege. Third, in receiving and sending the communications sought by Mr Elvin, the Ombudsman’s in-house lawyer was acting in his capacity as a lawyer. Fourth, there is no prima facie evidence of any illegal or improper purpose. Fifth, there is no basis for Mr Elvin’s submission that there is no legal professional privilege where communications were made to agents of the client. Sixth, there has been no implied waiver of privilege.

Consideration of whether Mr Elvin may have access to the 2018 documents

13    There appears to be no dispute as to the applicable principles concerning a claim of legal professional privilege and whether it is advice privilege or litigation privilege. The Ombudsman claims legal advice privilege as the basis for resisting unredacted access to the subject documents in relation to the 2018 documents. The appropriate test is whether the communication could be characterised as the giving of independent legal advice by a person acting in the role of legal advisor giving advice to their client. “Legal advice” comprises not only formal advice as to the law but also extends to advising as to what should prudently be done in a relevant legal context (excluding purely factual or commercial advice): Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853 at [15]; DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191; 135 FCR 151 at [45]; Archer Capital 4A Pty Ltd v Sage Group Plc (No 2) [2013] FCA 1098; 306 ALR 384 at [12]. The privilege extends to documents, to the instructions given to the lawyer and to documents from which the nature and content of a legally privileged communication might be inferred.

14    For the purpose of the 2018 documents, the roles of the participants in the relevant communications were described as follows in the affidavit of Mr Vincent affirmed on 18 August 2023. Mr George Raptis was a Lawyer in the Ombudsman’s office until on or about 30 April 2018, and thereafter held the title of a Senior Lawyer in the Ombudsman’s office. Mr Luke Thomas was a Fair Work Inspector and Team Leader in the Overseas Workers Team of the Ombudsman’s office. Ms Lara Hurrell was a Fair Work Inspector in the Overseas Workers Team of the Ombudsman’s office and, from time to time, the Fair Work Inspector with carriage of the investigation. Ms Brodie Smith held the position of Acting Director, Overseas Workers Team in the Ombudsman’s office. Ms Kathleen Hill held the position of Acting Assistant Director, Overseas Workers Team in the Ombudsman’s office.

15    I note with respect to each of the six documents that comprise the 2018 documents which Mr Elvin seeks access to in unredacted form that the Ombudsman has put on evidence describing the circumstances surrounding and the content of each of those emails.

The 26 March 2018 email

16    The 26 March 2018 email was sent by Fair Work Inspector Thomas to Mr Raptis, Fair Work Inspector Hurrell, copying others, forwarding a chain of emails from March 2018 between Inspector Thomas and Mr Raptis, the substance of which has been redacted. The subject line of these emails is “RE: Foot & Thai”. Ms Smith deposes (and was not the subject of challenge) that, in these emails, legal advice was sought by the inspectors and provided in relation to the Ombudsman’s investigation and possible commencement of legal proceedings, including about the calculation of underpayments. I do note, however, that Mr Elvin did challenge Ms Smith’s evidence in this last respect, namely, that there was a challenge as to whether Mr Raptis could be in a position to provide advice with respect to calculations in circumstances where he did not form part of the Ombudsman’s calculations team. I do not accept the premise that underlies this allegation. I accept that advice given with respect to calculations may necessarily include underpinning legal advice giving rise to the formula used with respect to those calculations. I accept the evidence of Ms Smith as providing a sound basis for a claim, in a broad sense, of this email comprising legal advice. My review of the document in unredacted form confirms the accuracy of this description.

The 11–12 April 2018 email

17    These emails were sent between Inspector Hurrell, Mr Raptis and Inspector Thomas between 11 and 12 April 2018 with the subject line “RE: Foot & Thai: Employee responses”. Ms Smith deposes that, in these emails, Mr Raptis provides legal advice in relation to a planned interview with Mr Benting, an employee witness, and provides legal advice as to the results of broader evidence gathering (this legal advice had been sought by the inspectors) for the purpose of advising on possible court proceedings and preparing court documents for those proceedings. I accept Ms Smith’s description of the sender and recipients of those emails and her description of what is contained within them is sufficient to establish that privilege is attached to those documents. I note that my review of these emails in unredacted form confirms the same.

The 17 April 2018 email

18    The 17 April 2018 email was sent by Inspector Thomas to Mr Raptis and Inspector Hurrell, copying others, forwarding a chain of emails from 16 and 17 April 2018 between Inspector Thomas, Mr Raptis and Inspector Hurrell, the substance of which has been redacted. The subject line of these emails is “RE: Foot & Thai - Ruben Benting”. Ms Smith deposes that, in these emails, inspectors seek and Mr Raptis provides legal advice in relation to analysis of evidence from an employee interview and calculation of underpayments in connection with possible court proceedings. It is my view that, based on that description, it accurately describes the email, and that, by virtue of the description given, it is sufficient to establish that it is a privileged communication. This view is confirmed by my review of the privileged communications.

The 24 May 2018 email

19    The 24 May 2018 email was sent by Inspector Hurrell to Ms Smith, forwarding two emails from 23 May 2018 between Mr Raptis, Ms Smith, Inspector Hurrell, Inspector Thomas and Ms Hill, copying others. The substance of the first email has been redacted, as has much of the latest email in the chain. The subject line of these emails is “RE: Prospects advice received: FWO v Foot & Thai Massage Pty Ltd, Colin Kenneth Elvin and Jun Millard Puerto”. In the 23 May emails, according to Ms Smith, Mr Raptis provides legal advice and seeks instructions from Ms Smith in respect of commencing the proceedings, and then, in the 24 May email, Inspector Hurrell refers to Mr Raptis’s 23 May communication in connection with commencing these proceedings. I have reviewed the documents, and the extensive attachments, and I am satisfied that they constitute legal advice provided by Mr Raptis acting in the role of legal adviser giving legal advice.

The 28 May 2018 email

20    The only documents produced by the Ombudsman dated 28 May 2018 were not redacted and the Ombudsman has made no claims that they were covered by legal professional privilege. It is not clear what Mr Elvin seeks by his inclusion of this document in his application.

The 4 April 2018 email

21    The 4 April 2018 email was sent by Inspector Hurrell to Mr Raptis and Inspector Thomas, forwarding a chain of emails also dated 4 April 2018, some of which were redacted. The subject line of these emails is “RE: Foot & Thai - Recommendations for calculations changes”. In these emails, Mr Raptis, as Ms Smith deposes, provides legal advice in relation to the calculation of underpayments and seeks and receives instructions from inspectors for the purpose of providing legal advice on the quantum of the underpayments and preparing legal court documents for the commencement of proceedings in the Federal Court. I have reviewed the documents and I am satisfied that they constitute legal advice that has been given in these proceedings by Mr Raptis acting in the role of legal adviser and, as a consequence, that they are privileged.

22    Accordingly, I have reviewed each of the descriptions given by Ms Brodie Smith with respect to each of the 2018 documents claimed. I accept that they comprise an accurate description of the creators of these documents and their content. The same is confirmed by my review of the unredacted documents. For these reasons, all the claims that the 2018 documents which are the subject of the application are, in fact, the subject of legal professional privilege are to be made out, subject, of course, to my consideration of the additional bases upon which Mr Elvin makes his claims.

23    As referred to above, Mr Elvin submitted that there were other bases, putting aside the common law principles associated with the identification of legal professional privilege, upon which he should be entitled to unredacted copies of the documents. I will deal with those bases now.

Claimed lack of independence

24    Mr Elvin claims that, to the extent that the 2018 documents were from in-house lawyers, they were not “sufficiently independent” and therefore privilege does not apply.

25    I accept that where the lawyer is an “in-house” lawyer, it cannot necessarily be presumed by knowledge of the sender and recipient that the communication is privileged. The Court must determine in what capacity the lawyer is making the communication. I note Ms Byrnes for the Ombudsman took me to the decision of Friday v Minister for Primary Industry and Resources [2020] FCA 984 at [34] per SC Derrington J. The Ombudsman also relied upon paragraphs [13]–[18] of Mr Vincent’s affidavit of 18 August 2023. Despite that, it was my choice to consider the documents themselves.

26    I have in fact reviewed all the contents of the redacted documents and am satisfied that they were made by lawyers or concerned the advice of lawyers acting independently in the provision of that advice.

Claimed illegal or improper purpose

27    Mr Elvin contends that either the communications or the claim of privilege were made in furtherance of an illegal purpose, being an allegedly unlawful decision not to pursue claims of contravening conduct with respect to Mr Benting but to nonetheless rely on his prejudicial evidence in the liability proceedings. Such an allegation is an extremely serious one for which there must be prima facie evidence that it has foundation in fact. I note, in this regard, that Mr Vincent and Ms Thomas were cross-examined as to whether, on occasion, the Ombudsman relies on the evidence of a former employee in proceedings, which could give rise to allegations of contraventions under the Act, but does not plead a corresponding claim in the pleadings. Mr Vincent gave evidence as to the fact that this circumstance, on occasion, arises.

28    I do not accept that the underlying premise has been made out by Mr Elvin that, by reason of the Ombudsman deciding not to claim or plead contraventions in relation to Mr Benting, this discloses an illegal or improper purpose for which the claim of privilege otherwise would not arise. There is nothing before me to found such an allegation.

29    The Ombudsman made the following submissions in this regard, which I accept:

16.    Her Honour deals with this issue at [532] of the Liability Decision, thus:

In both her opening and closing submissions the Ombudsman claimed that FTM contravened s 325(1) by requiring each of the Massage Therapists to repay from their earnings $800 per fortnight to FTM for a period of time after they started work for FTM. Each of the Massage Therapists gave evidence to this effect. In every iteration her pleading, however, including in the draft second further amended statement of claim, the Ombudsman did not include an allegation that FTM had required Mr Benting to pay back money from his wages, limiting her claim to the six female Therapists, despite the evidence given by Mr Benting which was to the same effect. I was informed that this was a “forensic choice”, although I was not informed why the choice was made and it is not open to me to speculate. In these circumstances I consider that the Ombudsman should be held to her pleading. Had the position been otherwise I would likely have inferred that the omission of Mr Benting was inadvertent, dealt with the matter on its merits and invited the Ombudsman to amend her pleading, for the matter was not only captured by her opening submissions but Mr Elvin cross-examined Mr Benting on his evidence on this subject: see, for example, Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 at 446; 50 ALJR 666 at 668 (Stephen, Mason and Jacobs JJ); Water Board v Moustakas (1988) 180 CLR 491 at 497 (Mason CJ, Wilson, Brennan and Dawson JJ).

17.    Mr Benting was one of seven Massage Therapists who all gave evidence on the requirement to make fortnightly payments for a period of their employment with the First Respondent. In upholding the contraventions of s 325 of the FW Act with respect to the other Massage Therapists, the Court considered all the evidence thoroughly and in a detailed manner at [533] - [565] of the Liability Judgement [sic]. The Court found the Massage Therapists, including Mr Benting, were unshaken in cross examination at [549] of the Liability Judgement.

18.    The privileged communications between Mr George Raptis and other Fair Work Inspectors of the Applicant occurred in circumstances where Mr Raptis was providing the Inspectors with legal advice and such advice was provided in connection with anticipated legal proceedings. There is no basis in the evidence to suppose that the communications were prepared in furtherance of the commission of a fraud. Rather than seeking to gain some unfair or dishonest advantage in some way prejudicial to the Second Respondent, the Court has taken a strict view and held the Applicant to her pleadings such that an additional contravention was not found against the Respondents in circumstances where this was a course open to her Honour.

19.    The Second Respondent appears to also be suggesting that the Applicant commenced proceedings against the Respondents based on evidence known to be false in a deliberate abuse of statutory power. Hence, it must be established that either the lawyers or the Applicant knew or ought reasonably to have known that the evidence was false. This is a serious allegation, and the evidence provides no basis for such a finding. A mere assertion of improper use of power is insufficient to displace legal professional privilege.

Claimed communication with an agent of the Ombudsman

30    I reject Mr Elvin’s submission that the Ombudsman cannot claim privilege over the documents because the communications were not with the Fair Work Ombudsman herself, who is the client. I note, in this regard, that Mr Vincent was cross-examined with respect to this. Mr Vincent’s evidence was that the Ombudsman is the client of the Ombudsman’s lawyers, but also, on occasion, the Fair Work Inspectors themselves are defined as being clients of the Legal Branch.

31    Pursuant to s 696(2) of the Act, the Office of the Fair Work Ombudsman consists of (a) the Fair Work Ombudsman; (b) staff and (c) Fair Work Inspectors appointed under s 700 of the Act. Under s 701 of the Act, the Ombudsman is a Fair Work Inspector and, pursuant to ss 704 and 705, the Ombudsman may give directions to Fair Work Inspectors. Under s 682 of the Act, the Ombudsman has a function to commence proceedings to enforce the Act, fair work instruments and safety net contractual entitlements. Fair Work Inspectors may also commence proceedings in relation to contraventions of civil remedy provisions by virtue of s 539 of the Act.

32    By virtue of these powers, the Fair Work Inspectors can be understood as acting in their own right pursuant to powers under the Act to investigate possible contraventions of the Act and consider whether to commence proceedings. The Fair Work Inspectors are therefore “clients”, in the way that Mr Vincent described, for the purposes of claiming legal professional privilege. Alternatively, the Fair Work Inspectors are acting as agents of the Ombudsman, acting on her behalf when obtaining legal advice and providing instructions, in this case to Mr Raptis.

Waiver

33    Lastly, with respect to Mr Elvin’s claim regarding waiver, Mr Elvin claims that the Ombudsman has waived its privilege on the basis that she had disclosed through her counsel at the hearing before Katzmann J that she had made a “forensic choice” not to plead that FTM had contravened s 325 of the Act in relation to its requirement that Mr Benting make fortnightly payments to FTM.

34    I accept that a person who is otherwise entitled to the benefit of legal professional privilege may waive that privilege. It is for the person asserting waiver to establish it.

35    I do not accept that the submission as the disclosure of a “forensic choice”, was an act inconsistent with the maintenance of the privilege. Counsel for the Ombudsman disclosed no basis for that choice, that it was made as a result of advice, nor, if it was, any detail of that advice. I accept the submission of the Ombudsman that there was no disclosure of the contents of anything underpinning it, nor was it an occasion in a proceeding where the contents had been put in issue.

Consideration of the 2019 documents

36    I repeat my conclusions in relation to Mr Elvin’s arguments to the extent that they are repeated in relation to the 2019 documents, namely in relation to the claimed lack of independence, claimed illegal or improper purpose, claimed communication with an agent of the Ombudsman, and waiver, but I otherwise separately consider the documents in and of themselves. I note that the Ombudsman claims both legal advice and litigation privilege intermittently with respect to these documents.

37    The roles of the participants in the communications that constituted the 2019 documents are described as follows in the affidavit of Mr Vincent affirmed on 31 August 2023. Mr Adam Doe was a Fair Work Inspector in the Overseas Workers Team. Ms Sharissa Thirukumar was an in-house lawyer in the Legal Branch of the Ombudsman’s office and was the lawyer with carriage of these proceedings from 30 April 2019. Ms Claire Toner was an in-house lawyer in the Legal Branch of the Ombudsman’s office. Inspector Thomas and Mr Raptis, who were participants in the communications that constituted the 2018 documents, also had involvement in the communications that make up the 2019 documents.

38    Mr Elvin’s supplementary submissions made a number of contentions, some of which appeared to raise matters that go beyond the scope of this interlocutory application. Insofar as the submissions related to the privilege dispute concerning the 2019 documents, Mr Elvin made submissions that privilege had been waived over the 2019 documents because the Ombudsman had conceded that the emails related to a decision about whether to litigate particular claims (relating to six other employees (the Group of Six)) and that concession was inconsistent with the maintenance of confidentiality over the emails.

39    In addition, at hearing, it seemed apparent from the questions that Mr Elvin in particular asked of Mr Vincent that Mr Elvin wanted to replicate the basis upon which he had made his claims in relation to the 2018 documents in part with respect to the 2019 documents. In particular, Mr Elvin claimed, in essence, that the failure to disclose the basis for why the claim in respect of the Group of Six ultimately was not pursued as part of the application was because the Ombudsman had decided that that evidence was false and could not have been accepted and, therefore, the Ombudsman had acted illegally and for an improper purpose by relying on certain of the evidence of the Group of Six (he claims three) as part of the proceedings.

40    The Ombudsman made two supplementary submissions in response. First, she submitted that the 2019 documents fell within legal advice and litigation privilege. She submitted that they comfortably fall within the ambit of giving and receiving of independent legal advice between a legal advisor and client. Moreover, they record confidential communications between client and legal advisor with reference to ongoing litigation. Second, she submitted that the lawyers of the Ombudsman’s office who received and sent the 2019 documents plainly did so in their capacity as lawyers, and were also independent by virtue of s 697(1) of the Act and the facts that they are required to hold practising certificates and maintain operational and structural independence from the inspectors at the Ombudsman’s office.

The 6 August 2019 email

41    The 6 August 2019 email was sent from Inspector Thomas to Inspector Doe. This email forwarded another email dated 22 June 2018, which was sent by Mr Raptis with the subject line “FWO commences proceedings against Foot & Thai Massage Pty Ltd, Colin Kenneth Elvin & Jun Millard Puerto”. Inspector Thomas deposed that, in the 22 June 2018 email, Mr Raptis records the Overseas Workers Team’s instructions in connection with commencing the proceedings and provides legal advice on a number of matters which are the subject of the proceedings. The Ombudsman submits that this email directly records communications between Fair Work Inspectors and a lawyer in the Ombudsman’s office. I accept Mr Thomas’s description is accurate. I am satisfied, upon a review of this email, that it constitutes the provision of legal advice for which privilege attaches.

The 7 August 2019 email

42    The 7 August 2019 email was sent from Inspector Thomas to Inspector Doe with the subject line “RE: FWO - Request for Assistance - Foot & Thai workers”. Inspector Thomas deposed that, in the email, he described legal advice provided by Ms Thirukumar, a lawyer in the Ombudsman’s office. Inspector Thomas deposes that the advice concerned questions to be asked in interviews with employees for the purpose of the proceedings and the further investigation that was commenced in around July 2019.

43    The Ombudsman submits that this document is a communication that records advice provided by a lawyer and seeks information which will be shared with that lawyer. In the Ombudsman’s contention, it is privileged because it is an internal document of the client revealing communications that would be covered by privilege. The communications record information sought by the client’s legal adviser to enable her to advise the client and to conduct litigation on her behalf. From my review of the document, I accept the Inspector’s description of the circumstances giving rise to its creation and content. It is a document over which privilege applies.

The 12 August 2019 email

44    The 12 August 2019 email was sent from Ms Thirukumar to Inspector Doe (copying another lawyer in the Ombudsman’s office, Ms Claire Toner, and Inspector Thomas) with the subject line “Foot & Thai”. Inspector Thomas deposed that, in it, Ms Thirukumar provides legal advice regarding questions she intends to ask employees for the purpose of the proceedings. The Ombudsman submits that this email directly records communications between Fair Work Inspectors and a lawyer in the Ombudsman’s office. I accept the description given by the Inspector is accurate as a result of my review of the document, and that privilege attaches to it.

The 13 August 2019 email

45    The 13 August 2019 email was sent from Inspector Thomas to Ms Thirukumar and Inspector Doe with the subject line “Foot & Thai - liquidators formally appointed”. I am satisfied from my review of the unredacted document that Inspector Thomas’s description is accurate. Inspector Thomas deposed that, in it, he provided Ms Thirukumar with instructions in relation to the conduct of the proceedings. The Ombudsman submits that this email directly records communications between Fair Work Inspectors and a lawyer of the Ombudsman’s office. As a consequence of my review, I accept that a claim for privilege has been made out with respect to it.

46    Finally, I note Mr Elvin’s additional claims with respect to the 2019 documents. With respect to Mr Elvin’s claim that there has been a waiver of privilege by reason of the Ombudsman conceding that the emails related to a decision about whether to litigate particular claims, I do not accept that this is sufficient to make out a claim that there has, in fact, been a waiver. Nothing in the concession given by the Ombudsman identifies anything going to the content of that advice. I do not accept that there has been waiver.

47    Secondly, to the extent that a claim is made on the basis of impropriety, namely that it is in the furtherance of an improper purpose that relates to the Group of Six employees and the fact that a decision was made by the Ombudsman not to bring a claim on their behalf, I note the cross-examination of Inspector Thomas in this regard. Inspector Thomas gave, on numerous occasions, evidence as to the multifaceted bases upon which a decision was made not to amend the claim and bring a claim with respect to the Group of Six. At [10] of his affidavit, he referred to it being by reason of a number of factors, including the liquidation of FTM, that the Ombudsman would not take any further investigative or enforcement action in relation to the allegations raised.

48    In addition, during his cross-examination, Mr Thomas consistently provided additional bases upon which decisions of this kind are made, which include decisions with respect to resourcing, the public interest, whether the company had gone into liquidation and whether the matter was already before the court as being matters that are ordinarily taken into account by an Inspector when they consider whether to add additional claimants to an existing proceeding.

49    In addition, he gave evidence as to the combination of factors that relate to the finite resources of the Ombudsman. They included the fact of the Ombudsman receiving 300,000 annual inquiries, 16,000 requests for assistance, and noting that the Ombudsman comprises a staff of 900. He stated that it is necessary, as a consequence, to triage which of the 16,000 requests it can and that, I quote, the Ombudsman’s office “always try our best to assist everyone that comes to us”.

50    On the basis of his evidence, but also noting Mr Elvin’s onus, I do not accept that there is any basis upon which it could be claimed that the documents ought to be provided in circumstances where there has been the furtherance of an illegal or improper purpose made out.

51    For these reasons, it is my view that there should be no access provided to the unredacted copies of either the 2018 documents or the 2019 documents.

Orders

52    I order that Mr Elvin’s interlocutory application dated 21 July 2023 (as amended by grant of leave ordered by Katzmann J on 21 August 2023) be dismissed.

Associate:

Dated:    14 September 2023