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Procedural fairness does not override legal professional privilege.

27/01/2011

The  Department of Resources, Energy and Tourism decided to terminate the employment of a senior executive.  He sought a judicial review of that decision and served a notice to produce documents admittedly created for the dominant purpose of obtaining or giving legal advice about the dispute.  He argued that the documents were not privileged because they were not confidential.  Procedural fairness meant that the decision maker had a positive obligation to disclose all relevant, credible documents to anyone affected by the decision.

The Federal Court rejected the attempt and said the proposition was extraordinary.  It preferred to confine the obligation to factual material affecting the decision and not to extend it to the “decision-maker’s thought processes or analyses of legal opinion“.  The rules of natural justice are not absolute rules but should be applied flexibly in a way that is conformable to the peculiar circumstances of each case.

Read the judgement in Griffiths v Rose.

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