Alpert v Secretary, Department of Defence [2022] FCA 54

Federal Court of Australia

Alpert v Secretary, Department of Defence [2022] FCA 54 Appeal from: Alpert and Secretary, Department of Defence (Freedom of information) [2020] AATA 1632

File number: QUD 199 of 2020

Judgment of: COLLIER J

Date of judgment: 4 February 2022

Catchwords: APPEAL – appeal from decision of the Administrative Appeals Tribunal (Tribunal) – whether appeal from Tribunal competent pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and relevant case law – "finality" for the purposes of s 44 of the AAT Act – interlocutory decision before Tribunal ADMINISTRATIVE LAW – whether Tribunal erred in applying s 35(4) of the AAT Act by approaching the question whether document disclosable by reference to whether it was an "exempt document" for purposes of s 42 of the Freedom of Information Act 1982 (Cth) – s 37 of the AAT Act – "issue waiver" – whether Tribunal erred in failing to find legal professional privilege attached to document had been waived – whether Tribunal erred in finding no denial of procedural fairness EVIDENCE – Legal Profession Privilege –– whether first respondent acted consistently with maintenance of claim for legal professional privilege – whether document subject of valid claim for legal professional privilege, or alternatively whether privilege waived

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 35(4), 37, 37(1), 37(3), 39, 43, 43(1), 44, 44(1) Federal Court of Australia Act 1976 (Cth) s 43 Freedom of Information Act 1982 (Cth) ss 42, 55DA