the Applicant v TruEnergy Services Pty Ltd (No 5)
Citation: [2013] FCA 937
At a glance
- Employees affected
- 1
What happened
the Applicant was dismissed from EnergyAustralia Services Pty Ltd on 6 February 2012, claiming her position had become redundant. She alleges this dismissal was adverse action due to complaints she made about workplace practices. the Respondent relied on expert reports by Guy Farrow during the trial. the Applicant sought production of draft expert reports and correspondence between Mr Farrow and the respondent’s solicitors.
What was decided
The Federal Court considered whether legal professional privilege applied to draft expert reports and related correspondence. The court found that client legal privilege did not apply to the drafts themselves because they represented the expert's own thinking, but it may have applied to annotations on those drafts. The decision was made in light of the Evidence Act 1995 (Cth) which governs legal professional privilege in this case.
What it means for employers
Employers should be aware that draft documents prepared by experts for litigation purposes may not be subject to client legal privilege, particularly if they reflect the expert's own independent thinking. Careful consideration is needed when engaging experts and managing their work product to avoid unintended disclosure of information.
What it means for employees
Employees who believe they have been unfairly dismissed or subjected to adverse action should understand that documents related to a case may be subject to legal privilege, but drafts prepared by expert witnesses might not always be protected. This can impact the discovery process and access to relevant information.
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →