Rilstone v BP Australia Pty Ltd [2007] FCA 1557

FEDERAL COURT OF AUSTRALIA

Rilstone v BP Australia Pty Ltd [2007] FCA 1557

PROCEDURE – where discovery made of documents – where claim of legal professional privilege – where claim of legal advice privilege – where application to produce for inspection – where documents created in course of investigation by Office of Workplace Services – where documents communicated by Office of Workplace Services to Legal and Advice Branch of Office of Workplace Services – where multiple purposes for creation of documents – where head of Legal and Advice Branch had power to approve State Manager's recommendation to institute proceedings – whether legal advice privilege established – whether documents brought into existence for dominant purpose of obtaining legal advice – whether Legal and Advice Branch of Office of Workplace Services a legal adviser – whether necessary to establish independence in all cases – whether power to approve State Manager's recommendation deprived Legal and Advice Branch of independence. Held: evidence required to establish professional relationship depends upon circumstances – power to approve State Manager's recommendation did not deprive Legal and Advice Branch of independence – independence and professional relationship established in the circumstances – evidence does not establish documents brought into existence for dominant purpose of obtaining legal advice – legal advice privilege not established – application to produce for inspection granted.

Evidence Act 1995 (Cth) s 118 Federal Court Rules O 33, r 11 Workplace Relations Act 1996 (Cth) ss 400, 407, 410, 846 Workplace Relations Regulations 2006 (Cth)

Australian Federal Police Commissioner v Propend Finance Pty Ltd (1997) 188 CLR referred to Barnes v Commissioner of Taxation [2007] FCAFC 88 referred to Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49 followed Northern Territory v GPAO (1999) 196 CLR 553 referred to Seven Network Limited v News Limited [2005] FCA 142 referred to Seven Network Ltd v News Ltd (2005) 144 FCR 379 followed Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 distinguished Waterford v The Commonwealth (1987) 163 CLR 54 followed AARON RILSTONE v BP AUSTRALIA PTY LTD ACN 004 085 616 AND NO 1 RIVERSIDE QUAY PTY LTD ACN 006 639 087 SAD 44 OF 2007