Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237

FEDERAL COURT OF AUSTRALIA

Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 EVIDENCE – Privilege – Legal professional privilege – Waiver – Letter conveying substance and effect of legal advice to third party – Inconsistency between disclosure and confidentiality – Waiver imputed where final conclusion of legal advice stated – Voluntary disclosure of the conclusion of legal advice waives privilege in relation to undisclosed reasons for conclusion – Disclosure of one conclusion does not necessarily waive privilege in relation to undisclosed conclusions FREEDOM OF INFORMATION – Appeal from Administrative Appeals Tribunal on question of law – Exempt documents – Documents privileged from production on grounds of legal professional privilege – Principles relating to waiver of privilege in documents otherwise exempt – Decision as to waiver involved an error on a question of law as to correct application of test for waiver of privilege FREEDOM OF INFORMATION – Administrative Appeals Tribunal – Powers of Tribunal under Freedom of Information Act 1982 (Cth) s 58 – Tribunal empowered to review any decision made by an agency or Minister – Tribunal stands in shoes of relevant agency or Minister for purpose of administrative review – Power of Tribunal to review decision of agency or Minister not severable from power to determine threshold questions in relation to reviewable decision –Tribunal not empowered to review decision to claim exemption from disclosure on grounds of privilege without reviewing validity of privilege claim itself FREEDOM OF INFORMATION – Exempt documents – Documents privileged from production on grounds of legal professional privilege – Documents containing privileged matter not exempt if used by relevant agency to determine entitlements or obligations of persons generally under an enactment or scheme administered by that agency – Legal advice provided in relation to particular case may fall within this category in some circumstances ADMINISTRATIVE LAW – Limits upon power of Court on appeal from Administrative Appeals Tribunal