Freeman, Jack v Health Insurance Commission & Ors [1997] FCA 888

FEDERAL COURT OF AUSTRALIA

EVIDENCE Discovery - Legal professional privilege - Whether legal advice was in furtherance of abuse of statutory power - Privilege lost only if abuse is deliberate - Standard of proof required Health Insurance Commission Act 1973 (Cth), ss 8L, 8Y Health Insurance Commission Regulations reg. 3(2)

Bullivant v Attorney-General for Victoria [1901] AC 196 applied Grant v Downs (1976) 135 CLR 674 applied R v Cox and Railton (1884) 14 QBD 153 considered Varawa v Howard Smith & Co Ltd (1910) 10 CLR 382 applied Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd [1972] Ch 553 considered Attorney General (NT) v Kearney (1985) 158 CLR 500 followed Diamond v Stratton (1982) 95 FRD 503 considered Irving Trust v Gomez (1983) 100 FRD 273 considered O'Rourke v Darbishire [1920] AC 581 applied Butler v Board of Trade [1971] 1 Ch 680 applied Australian Federal Police, Commissioner v Propend Finance Pty Ltd (1997) 141 ALR 545 applied Milliman v Rochester Ry Co (1896) 39 NYS 274 followed Grofam Pty Ltd v Australia and New Zealand Banking Group Limited (1993) 43 FCR 408 discussed JACK FREEMAN v HEALTH INSURANCE COMMISSION & ORS VG 689 of 1996 FINKELSTEIN J 26 AUGUST 1997 MELBOURNE

GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY VG689 of 1996

BETWEEN: JACK FREEMAN

Applicant

AND: HEALTH INSURANCE COMMISSION,

ROY LLEWELLYN CORBETT and

DAVID HARPER MCLENNAN

Respondents

JUDGE: FINKELSTEIN J

DATE OF ORDER: 26 AUGUST 1997

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. On or before 4.15pm on 28 August 1997, the first and second respondents serve on the applicant a copy of each document described in Item 1 pars (a) to (y) and Items 2 and 3 of Part 2 of Schedule 1 of their Further Amended List of Documents filed on 20 May 1997. 2. The first and second respondents pay the applicant's costs of and incidental to the motion filed on 7 May 1997. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.