Federal Court of Australia

Commissioner of the NDIS Quality and Safeguards Commission v Irabina Autism Services (in liq) (No 5) [2026] FCA 1398

ORDERS

THE COURT ORDERS THAT:

1.    The call made by the second and third respondents on 16 September 2026 for the production of the draft affidavit of Ms Melissa Webster showing corrections made to that affidavit is disallowed.

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)

HORAN J:

1    On the third day of trial, during the cross-examination of Ms Melissa Webster, counsel for the second and third respondents made a call for the production of a draft affidavit showing “corrections” that had been made by an unnamed person who was “taking the affidavit” from Ms Webster. The Commissioner, the applicant in this proceeding, has made a claim of legal professional privilege in relation to this copy of the draft affidavit.

2    The transcript of cross-examination giving rise to the call for production is as follows:

MS O’GORMAN: … You just told my learned friend that you affirmed your affidavit in July 2025; that’s correct? Did anyone assist you in the drafting of that affidavit?---No.

Did you draft it all by yourself?---I drafted the affidavit and then I sent it across to the guy [whose] name I can’t remember at this moment in time, that was taking the affidavit from me.

Can you recall the role of the person who you sent it to?---I can’t, sorry.

Did the person who you sent it to come back to you about the content of the affidavit in any way?---He came back with some corrections, yes.

By “corrections”, can you recall what they were?---Sorry, I can’t, no.

Can you recall the general topic areas that they related to?---I’m sorry, I can’t, no.

Do you recall how many corrections there were?---Sorry, I don’t exactly know.

Did you keep the communications in which corrections were made to your affidavit?---Yes, I did.

3    Senior counsel for the respondents submitted that the effect of Ms Webster’s evidence was that she had drafted her affidavit herself, without assistance from any other person, before sending it to the person who was “taking” her affidavit – presumably, either someone in the firm of solicitors acting for the Commissioner, or counsel for the Commissioner. It was submitted that she then received back a copy of the affidavit “with some corrections”, the number and content of which could not be recalled by the witness. It was submitted that, as there was no evidence that the corrections reflected any instructions that had been given by Ms Webster, the corrected draft is not privileged or is no longer privileged.

4    An analogous situation arose in Australian Securities and Investments Commission v Vines [2003] NSWSC 1005, in which Austin J decided that privilege had not been waived in drafts of a witness’s affidavit that had been referred to by him in the course of his cross-examination. In that case, the witness gave evidence that he had composed his affidavit himself and then discussed the draft with his solicitor. He was relevantly cross-examined in the following manner:

Q. So Mr Caddick provided you with a draft of parts of your affidavit, did he?

A. Well, I can – yep, we would have a discussion about something, and then he would provide it - he provided parts back.

…

Q. Mr Caddick provided you with drafts of parts of your affidavit; is that correct?

A. Yep.

Q. And he, in fact, provided you with a draft of most of your affidavit, didn’t he?

A. No.

Q. Did you use Mr Caddick’s drafts in the composition of your affidavit?

A. Yep - some parts I took, some parts I revised. Sorry, maybe I haven’t answered the question.

Q. In composing your affidavit --

A. Yes.

Q. -- you relied partly, at least, on drafts provided to you by Mr Caddick; is that correct?

A. Physically, yes, relied on, yes, the production of.

5    In deciding that there was no waiver of privilege, Austin J (at [12]) assumed, without deciding, that the principles about waiver of privilege by referring to a document to refresh memory were applicable to the preparation and tendering of an affidavit, as opposed to the giving of oral evidence; and that privilege is waived where a draft is prepared by a solicitor or other person for the witness, otherwise than as a reflection of instructions given by the witness to that person.

6    His Honour nevertheless concluded that the facts of that case did not establish anything that might constitute a waiver of privilege, stating (at [14]–[15]):

14    Given that the drafts in question were prepared by a solicitor consequent upon discussions with the witness, the proper inference, in the absence of other evidence, is that the drafts were nothing more than drafts intended to reflect the information supplied by the witness. That being so, it is contrary to Mr Schneider’s evidence to contend that the drafts produced by Mr Caddick were used to refresh his memory or otherwise as a memory stimulus.

15    If the process of a solicitor taking instructions for the preparation of an affidavit and then preparing a draft on the basis of those instructions and for review by the witness were intrinsically a process which involved waiver of privilege in respect of the draft as soon as the affidavit were read, there would be profound consequences for legal practice in respect of the preparation of affidavits. An important and unacceptable exception would be created to the substantive right constituted by the law of privilege.

7    In Oztech Pty Ltd v Public Trustee of Queensland (No 12) [2016] FCA 1128, Yates J rejected a submission that privilege had been waived in a draft affidavit that had been referred to in the course of the oral evidence of a witness and in respect of which he had been cross-examined. In the course of his cross-examination on one particular paragraph of his affidavit, the witness stated:

I didn’t draft this. I gave the detail to this affidavit and if there is a problem with the English as she has used, then that’s a matter you will have to take up with the draftsman.

He was later asked why particular paragraphs had been included in his affidavit, to which he responded:

Well, what’s in my affidavit is what’s in my affidavit, but I supplied as much information as I could think of and thought relevant to the solicitors and they drafted the affidavit. I found no fault with it but if you find a fault with it now then I will answer to that, but I really can’t describe why it’s drafted in that way.

He was also subsequently cross-examined as to his recollections of corrections that he might have made to the affidavit.

8    The applicant in Oztech argued that privilege in the draft affidavit had been waived, as follows (at [17]):

As to the question of privilege, the applicant submits that Mr Klein was cross-examined about the contents of his draft affidavit and gave specific answers about amendments made to various paragraphs. The applicant says that none of these questions was objected to and led to the disclosure of the contents of the paragraphs in question, which amounted to a waiver of privilege. The applicant submits that, as a consequence, privilege in the draft affidavit, as a whole, has been waived.

9    Justice Yates concluded that privilege had not been waived in the draft affidavit as a whole, but that, in the light of the specific questions and answers given in cross-examination about particular paragraphs to which corrections had been made, the contents of those paragraphs of the draft affidavit had been disclosed in the course of cross-examination and “the privilege claimed in those paragraphs may have been waived accordingly”.

10    His Honour nevertheless proceeded to exercise his discretion to set aside the notice to produce on the basis that the production of those paragraphs could serve no proper purpose in the litigation and that, in so far as they were deployed for the purposes of challenging the witness’s credit, their probative value would be outweighed by prejudice to the respondent in circumstances where the witness had completed his evidence and had been excluded from further attendance. His Honour indicated that he would have refused any application to recall the witness to give further evidence, observing that:

The fact that Mr Klein’s affidavit might have been preceded by a draft or drafts of that affidavit could hardly be a matter of surprise.

However, it may be noted that, unlike the present case, there had been no call for production of the draft affidavit in the course of and before the conclusion of the witness’s cross-examination.

11    I refer also to Australian Competition and Consumer Commission v FFE Building Services Limited [2003] FCA 1181; [2003] ATPR 41-967 at [47]–[48] (Lindgren J), dealing with a notice for the production of draft witness statements or affidavits that were prepared after the institution of a proceeding, and were brought into existence for the purpose of conducting the proceeding.

12    Having regard to these authorities, I do not consider that there has been any waiver of legal professional privilege in the draft affidavit that was sent with corrections from the Commissioner’s representatives to Ms Webster.

13    I am not prepared to infer that the corrections made to the affidavit did not reflect instructions that had been given by Ms Webster to the Commissioner or the Commissioner’s lawyers. Her evidence did not rise to the point of establishing that she did not have any conferences or other meetings with representatives of the Commissioner for the purposes of preparing her affidavit. It is evident that she sent the affidavit to the person in question because that person was responsible for “taking” her affidavit. She was not cross-examined on whether corrections had been made to any particular paragraphs of her affidavit. In so far as the respondents propose to rely on the draft affidavit to challenge the credibility of Ms Webster, it would be necessary for her to be recalled for cross-examination. I am not satisfied that any forensic issue has been identified that would justify that course being taken.

14    Finally, counsel for the respondents also relied upon a point in the cross-examination of Ms Webster at which she was asked whether the Commissioner had made a decision “to make sure Rebecca is held responsible for Irabina’s clinical decisions”, in the context of Ms Webster having given evidence that she had followed a “script” in a meeting concerning Rebecca’s redundancy despite not believing aspects of that script to be true. When objection was taken to the question, counsel foreshadowed in the absence of the witness that it would be put that Ms Webster considered that the Commissioner had made such a decision “when [Ms Webster] was provided with the corrections to her affidavit”.

15    It is not clear how the first proposition flows from the bare fact that corrections were made to the draft affidavit in the course of its preparation. In any event, the suggestion that there has been some improper direction or influencing of the witness by the Commissioner is, in my view, far too long a bow to draw on the evidence before the Court. It does not provide a basis to alter the conclusion that there has been no waiver of legal professional privilege in the draft affidavit.

16    Accordingly, the call for production will be disallowed.

Associate:

Dated:    22 September 2026