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Thursday, June 21, 2007

No consequence from FOI slip up

If a Freedom of Information officer inadvertently discloses some information about legal advice received, would this constitute waiver of legal professional privilege in respect of the documents that contain the legal advice? The officer concerned said he meant to "mask" this part of the document, but was under pressure and failed to do so.

The Administrative Appeals Tribunal ruled that it constituted waiver of privilege, but in a recent judgment (Commissioner of Taxation v Devereaux Holdings Pty. Ltd. (2007) FCA 821) the Federal Court overturned that decision, on the basis of an error of law: the Tribunal had failed to consider the question whether the conduct was inconsistent with the confidential nature of the advice. If it had done so, according to Justice Gyles, the answer would have had to have been no.

This case clearly mattered a lot to the parties concerned. Both sides had heavyweight legal representation. The Australian Taxation Office team consisted of not one but two Senior Counsel and another barrister in support.And the FOI applicant,having won in the Tribunal, ended up on the wrong side of a cost order in the Federal Court.

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