Hartley v State of Queensland

Industrial Relations (Tribunals) Rules 2011, r 41 and r 46

Archer Capital 4A Pty Ltd as trustee for Archer Capital Trust 4A v Sage Group plc (No 2) [2013] FCA 1098; (2013) 306 ALR 384

Archer Capital 4A Pty Ltd as trustee for the Archer Capital Trust 4M v Sage Group plc (No. 3) [2013] FCA 1160

Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd (No 2) [2025] FCA 1004

Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232

Australian Securities and Investments Commission v Insurance Australia Ltd [2026] FCA 107

Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52

Barnes and Anor v Commissioner of Taxation [2007] FCAFC 88; (2007) 242 ALR 601

Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501

Commissioner of Taxation v Rio Tinto Limited [2006] FCAFC 86; (2006) 151 FCR 341

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543

Dexus Capital Investment Services Pty Ltd aft Dexus Diversified Infrastructure Trust A v Australia Pacific Airports Corporation Ltd [2026] NSWSC 125

DSE (Holdings) Pty Ltd v InterTAN Inc and Anor [2003] FCA 384: (2003) 127 FCR 499

DSE (Holdings) Pty Ltd v InterTAN Inc and Another [2003] FCA 1191: (2003) 135 FCR 151

Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49

FX Group Holdings Pty Ltd v Perpetual Trustee Co Ltd as trustee of the CPEC 8 Trust A (formerly the CHAMP IV Trust A) (waiver of privilege) [2025] NSWSC 556

Grant v Downs [1976] HCA 63; (1976) 135 CLR 674

Krok v Commissioner of Taxation [2015] FCA 51; (2015) 100 ATR 595

Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1

New South Wales v Betfair Pty Ltd [2009] FCAFC 160; (2009) 180 FCR 543

Nine Films and Television Pty Ltd v Ninox Television Ltd [2005] FCA 356; (2005) 65 IPR 442

Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275

Quarter Turn Pty Ltd v Reinteractive Pty Ltd (No 2) [2025] FCA 1389

Re: Applications to vary the Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016 [2024] QIRC 064

Rinehart v Rinehart [2016] NSWCA 58

Singtel Optus Pty Ltd v Robertson [2024] FCAFC 58; (2024) ALR 425 1

Standard Chartered Bank of Australia v Antico [1993] 36 NSWLR 87

Telstra Corporation Ltd v BT Australasia Pty Ltd [1998] FCA 901; (1998) 85 FCR 152

Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 5

Wayne Lawrence Pty Limited v Hunt & Ors t/a Hunt Musgrave and Peach [1999] NSWSC 1044

Mr M. McKechnie of Counsel instructed by Ms C. Smith of Crown Law

[1] The background to this matter was summarised in Hartley v State of Queensland (Office of Industrial Relations) ('Hartley No. 1').[1] These reasons assume familiarity with the decision in Hartley No. 1. Unless otherwise stated, the definitions used in Hartley No. 1 are used in these reasons. For convenience, I will refer to the Respondent (the State of Queensland) by reference to the public service entity in which Mr Hartley was employed, namely, the OIR.

[2] Pursuant to a seventh Further Directions Order I issued on 9 May 2025, the OIR was directed to file and serve, by 27 May 2025, affidavit material for each witness that it proposed to call at the hearing of Mr Hartley's application for reinstatement. On 27 May 2025, the OIR filed an affidavit of Mr Peter McKay. Mr McKay, at the time material to Mr Hartley's application for reinstatement, was the Deputy Director-General of the OIR. Mr McKay was also the OIR's delegated decision-maker in relation to the disciplinary process against Mr Hartley taken under the Public Sector Act 2022 ('the PS Act'). Relevantly, Mr McKay made all the decisions in respect of the disciplinary process against Mr Hartley, including the decision to terminate Mr Hartley's employment.[2]

[3] Mr McKay exhibited to his affidavit, amongst other documents, four briefing notes that were provided to him, by employees from within the OIR, in the course of the decisions he made about the disciplinary process concerning Mr Hartley.[3] Some of the text in those four briefing notes is redacted. When Mr McKay refers to the four briefing notes in the body of his affidavit, he expressly states that the briefing notes have been redacted '... on the basis of legal professional privilege' and that he '... did not waive privilege over the briefing note.'[4]

[4] By application in existing proceedings filed by Mr Hartley on 30 October 2025 ('Mr Hartley's application'), Mr Hartley seeks orders, pursuant to r 41 of the Rules, that:

• the OIR produce the unredacted versions of the four briefing notes '... and all attachments and advice material provided to or considered by' Mr McKay in making the decision of 13 March 2024 (to terminate his employment); or

• the OIR provide a list of withheld documents and the grounds of any claim of privilege or confidentiality; and

• if privilege is claimed, that '... the Commission inspect the documents in camera to determine disclosure extent'. [5]

[5] The OIR opposes Mr Hartley's application on the basis that:

• those documents are protected by legal professional privilege which has not been waived; and

• to the extent that the documents refer to legal advice obtained by OIR, the substance of the advice is not revealed or deployed and that such legal advice is entirely irrelevant to the matters which the Commission must determine.[6]

[6] In support of his application, Mr Hartley relied upon his own affidavit filed on 30 October 2025 and a further affidavit he filed on 19 December 2025 which is in the form of submissions. I treated Mr Hartley's further filed affidavit as his written submissions.

[7] The OIR relied upon an affidavit of Mr Harrison McDonald, Senior Principal Lawyer of Crown Law, filed on 6 November 2025 ('Mr McDonald's affidavit'). The OIR also relied on written submissions filed on 28 November 2025 and written submissions in reply filed on 12 January.

[8] Mr Hartley and the OIR made oral submissions at the hearing on 18 February 2026. In making his oral submissions, Mr Hartley amended part of the relief he sought; namely, he now only sought an order that the OIR disclose the unredacted versions of the four briefing notes and he did not seek production of any attachments to the briefing notes.[7]

[9] The issue for my determination is whether I should grant the relief now sought by Mr Hartley, being that the OIR disclose the unredacted versions of the four briefing notes. In determining that issue, there are two questions to address:

• does the content of the redacted text of the four briefing notes enliven the rule of legal professional privilege? and, if so,

• to the extent legal professional privilege has been enlivened in respect of the redacted text of the four briefing notes, has that privilege been impliedly waived by the OIR?

[10] For the reasons that follow, I will dismiss Mr Hartley's application in part.

[11] Mr McKay exhibits eighteen documents to his affidavit including:

• Exhibit PM-08, being a briefing note to Mr McKay prepared by Mr Gavin Gleeson, Director - Ethical Standards, Business and Corporate Services of OIR, dated 18 October 2023, and signed by Mr McKay on 23 October 2023, in respect of which Mr McKay accepted a recommendation by Mr Gleeson to decide to commence '...a Show Cause Notice - Liability for Discipline Findings' against Mr Hartley ('the show cause liability briefing note');[8]

• Exhibit PM-13, being a briefing note to Mr McKay prepared by Mr Gleeson on 27 January 2024, and signed by Mr McKay on 29 January 2024, in respect of which Mr McKay accepted a recommendation from Mr Gleeson to decide to continue disciplinary action and sign a 'Show Cause Notice - Decision on Discipline on Disciplinary Findings and Proposed Disciplinary Action' in respect of Mr Hartley ('the show cause penalty briefing note');[9]

• Exhibit PM-16, being a briefing note to Mr McKay prepared by Ms Bethany Skinner, Manager - Ethical Standards, Business and Corporate Services of OIR on 13 February 2024, and signed by Mr McKay on 15 February 2024, in respect of which Mr McKay:

• - accepted a recommendation from Ms Skinner '... to continue disciplinary action'; and

• - noted that it was his intention to terminate Mr Hartley's employment as a result of the disciplinary findings ('the continuation of disciplinary action briefing note');[10] and

• Exhibit PM-18, being a briefing note to Mr McKay prepared by Ms Skinner on 12 March 2024, and signed by Mr McKay on 13 March 2024, in respect of which Mr McKay accepted a recommendation from Ms Skinner '... to decide to take disciplinary action against Mr Hartley and sign the penalty letter' that was attached ('the penalty briefing note').[11]

[12] By letter dated 13 March 2024, Mr McKay gave notice to Mr Hartley that his employment was terminated effective from the date Mr Hartley received that letter from Mr McKay.[12]

[13] Each of the four briefing notes exhibited to Mr McKay's affidavit contain some redactions of the text. There are:

• two redactions in the show cause liability briefing note;

• four redactions in the show cause penalty briefing note;

• five redactions in the continuation of disciplinary action briefing note; and

Does the content of the redacted text of the four briefing notes enliven the rule of legal professional privilege?

Legal professional privilege - statement of the rule

[14] In The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission ('Daniels'),[13] Gleeson CJ, Gaudron, Gummow and Hayne JJ relevantly stated (citations omitted):

[9] It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. It may here be noted that the "dominant purpose'' test for legal professional privilege was recently adopted by this Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation in place of the "sole purpose'' test which had been applied following the decision in Grant v Downs.

[10] Being a rule of substantive law and not merely a rule of evidence, legal professional privilege is not confined to the processes of discovery and inspection and the giving of evidence in judicial proceedings. Rather and in the absence of provision to the contrary, legal professional privilege may be availed of to resist the giving of information or the production of documents in accordance with investigatory procedures of the kind for which s 155 of the Act provides. Thus, for example, it was held in Baker v Campbell, that documents to which legal professional privilege attaches could not be seized pursuant to a search warrant issued under s 10 of the Crimes Act 1914 (Cth).

[11] Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect. That rule, the expression of which in this Court can be traced to Potter v Minahan, was the foundation for the decision in Baker v Campbell. It is a rule which, subject to one possible exception, has been strictly applied by this Court since the decision in Re Bolton; Ex parte Beane. Cases in which it has since been applied include Bropho v Western Australia, Coco v The Queen and Commissioner of Australian Federal Police v Propend Finance Pty Ltd. The possible exception to the strict application of that rule was the decision in Yuill.

[15] The first part of the rule of legal professional privilege '... may conveniently be referred to as advice privilege, whereas the latter may be referred to as litigation privilege.'[14]

[16] In Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd ('NSW Ports'),[15] Wigney J stated of the dominant purpose test:

[39] A dominant purpose is a reference to "the ruling, prevailing, or most influential purpose": Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416. It is

a purpose that predominates over other purposes; the prevailing or paramount purpose: AWB

Ltd v Cole (2006) 152 FCR 382 at [105]-[106]. The purpose for which a document is brought

into existence is a question of fact that must be determined objectively; however, evidence of the subjective purpose will be relevant and often decisive: Esso at [172]; Sydney Airports

Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [6]. An appropriate starting

point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Limited v Commissioner of Taxation (2004)

[2004] FCAFC 122; 136 FCR 357 at [35]. It is the purpose of the communication at the time it was made that must be considered.

• applies to all curial procedures,[16] and may apply to other procedures;[17] and

• exists for the benefit of the client and not the lawyer.[18]

[18] The relevant time to assess the purpose of a communication will depend upon the particular circumstances of the case. [19] If the communication is a written document, the relevant time for the assessment is when the written document came into existence.[20]

[19] There are no provisions in the Industrial Relations Act 2016 that affect the rule of legal professional privilege, either at the disclosure or inspection stage of litigation, or at the stage of the adducing of evidence before the Commission.

[20] However, rule 46 of the Rules provides:

(1) If a directions order requiring disclosure of documents is made, a party must disclose any document that-

(a) is directly relevant to the proceeding or a matter in issue in the proceeding; and

(b) is in, or comes into, the possession of the party.

(2) A party must act under subrule (1) until the proceeding is concluded or the matter in issue is admitted, withdrawn, struck out or otherwise disposed of.

(3) Subrule (1) does not apply to a document in relation to which there is a valid claim to privilege from disclosure.

[21] Relevantly to the present matter, legal professional privilege may attach to confidential communications between an employer and its employed lawyer provided the employer consulted the employed lawyer in a "... professional capacity in relation to a professional matter" and the communications are made in confidence and arise in the course of a lawyer and client relationship.[21] It seems to be the case that there is no separate requirement to prove that the in-house lawyer was acting independently of any pressure from his or her employer, or had any requisite measure of independence.[22]

What communications may be resisted from being revealed?

[22] In the present case, the issue of legal professional privilege arises in the context of pre-trial discovery and production of documents and not in the context of the adducing of evidence before the Commission.

[23] It is the communication of information that attracts the rule of legal professional privilege and not the documents that contain the information within the documents.[23]

[24] As stated by Gleeson CJ, Gaudron, Gummow and Hayne JJ in Daniels,[24] the rule applies to resisting the '... production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.'

[25] Relevantly to the present case, the rule of legal professional privilege extends to any document which directly reveals, or by inference reveals, the content or substance of a confidential communication between a client and their lawyer made for the dominant purpose of obtaining legal advice. In Trade Practices Commission v Sterling ('Sterling'),[25] Lockhart J relevantly stated (citations omitted):

Legal professional privilege extends to various classes of documents including the following:

(a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. See Wheeler v. Le Marchant; Smith v. Daniell; Bullivant v. Attorney-General for Victoria; Jones v. Great Central Railway Co., and O'Rourke v. Darbishire.

(b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used. See Southwark Water Co. v. Quick.

(c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance. See Hughes v. Biddulph.

(d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. See Woolley v. North London Railway Co.; Greenough v. Gaskell; Corporation of Bristol v. Cox; Woolley v. Pole; Seabrook v. British Transport Commission; Grant v. Downs, and Bray, Principles and Practice of Discovery (1885) pp. 388-389.

(e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. See Wheeler v. Le Marchant; Laurenson v. Wellington City Corporation, and O'Sullivan v. Morton.

(f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. See Wheeler v. Le Marchant; Cork v. Union Steamship Co., and In Re Holloway.

(g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent. See Kennedy v. Lyell and Lyell v. Kennedy (No.2).[26]

[26] The decision of Lockhart J in Sterling was cited with approval by Deane J in Waterford v Commonwealth[27] and by Gummow J in Commissioner of Australian Federal Police v Propend Finance Pty Ltd.[28]

[27] Further, as relevantly stated by Young J in AWB Ltd v Cole:[29]

[127] As an adjunct to the first limb of the privilege, protection against disclosure has been extended to documents that record confidential legal advice or confidential legal work. Examples commonly given include legal research memoranda, draft pleadings, summaries of argument and draft agreements: see Daniels at [44] per McHugh J; Propend at 550 per McHugh J and at 569 per Gummow J; Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 496 per Dawson J; Trade Practices Commission v Sterling at 246 per Lockhart J; Mostyn v West Mostyn Coal and Iron Co Ltd (1876) 34 LT 531; and Packer v Deputy Commissioner of Taxation (Qld) [1984] 1 Qd R 275 at 284-285.

[128] Anderson J explained the scope of this protection and the reasons for it in Dalleagles (at 333-334):

What is protected, of course, is that which is communicated between solicitor and client. It is the communication that is privileged. But this is not to say that material that is not literally a communication or manifestly the record of a communication is never protected. There are many instances of protection being extended to such material. The examples of the draft letter that never leaves the solicitor's office, the draft agreement and the draft statement of claim have already been referred to. The reason why such material is protected is often stated to be that disclosure of it will, or will tend to, reveal the privileged communication: see Attorney-General (NT) v Maurice, per Dawson J (at 496). Thus a note made by a solicitor of a conference with his client will be privileged in so far as it is a record of the communication from the client (that communication being privileged) but also in so far as it might contain notes of the solicitor's own thoughts in regard to the matters communicated to him. Protection is afforded in the latter case on the ground that disclosure of that material might tend to reveal what had been communicated to the solicitor. There is much in the cases to support the view that this is the true basis upon which draft agreements, draft letters, draft pleadings and the like have long been accepted as privileged; that it is not so much because they are themselves "advice" or "communication" but because they will, if disclosed, reveal, or tend to reveal, the content of privileged communications. Material created by the solicitor in fulfilment of his engagement "is the result of the solicitor's mind working upon and acting as professional adviser with reference to" material communicated to him confidentially in his professional capacity (Kennedy v Lyell [1883] 23 Ch D 387 at 407) and, as such, will by its very nature tend to reveal the content of the communication in response to which it had been prepared.

Of course, there are limits and these have often been stated. The material must have been created solely for the purpose of fulfilling the engagement. The material must be confidential. No protection can extend to agreements in their final form intended to constitute the actual transaction between the parties or to records made for the purpose of evidencing an actual transaction, or to letters sent or to forms lodged at public offices or to pleadings filed in courts. This is because legal professional privilege exists to secure confidentiality and such material is no longer confidential.

[129] Gummow J proffered a similar explanation in Propend (at 569):

It also is significant, as Beaumont J emphasised in the present case that the privilege extends to any document prepared by a lawyer or client from which there might be inferred the nature of the advice sought or given. Examples include communications between the various legal advisers of the client, draft pleadings, draft correspondence with the client or the other party, and bills of costs.

This identification of the privilege with communications, rather than merely with documents, is important for the first issue on the grant of special leave.

[130] This line of authorities was canvassed by Allsop J in DSE, and I have gained assistance from several of the cases he discusses. In Bank of Nova Scotia v Hellenic Mutual War Risks Assn (Bermuda) Ltd [1992] 2 Lloyd's Rep 540 (The Good Luck), Saville J said (at 540):

In my view if a lawyer-client communication falls within the principles set out in Lord Justice Taylor's judgment (that is to say, is covered by legal professional privilege) then internal documents or parts of documents of the client (or indeed the lawyer) reproducing or otherwise revealing those communications are also covered by the same privilege, whatever the purpose or motive (short of fraud) for which the document comes into existence. The principle justifying legal professional privilege is (as Lord Justice Taylor pointed out) that a client should be able to obtain legal advice in confidence.

See also Hellenic Mutual War Risks Assn (Bermuda) Ltd v Harrison [1997] 1 Lloyd's Rep 160 at 171 (The Sagheera).

[131] In Wenkart, Branson J said that legal professional privilege extends to any document prepared either by the client or the legal adviser from which the nature of the advice sought, or given, might be inferred (eg a draft pleading, a solicitor's draft letter to the other side, or a bill of costs): see Williams NJ, "Four Questions of Privilege: the Litigation Aspects of Legal Professional Privilege", Civil Justice Quarterly, Vol 9, No 139, 1990, at p 142; and Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224 at 236-237 per Beaumont J.

[132] The principles that emerge from these cases operate to protect privileged communications against the risk that they will be disclosed by secondary evidence: see Tomlinson J in Three Rivers (No 5) at [3]. The question whether privileged communications will be disclosed by virtue of the disclosure of another document, such as a draft pleading, draft agreement or draft witness statement, raises a question of objective fact that depends on what the other document actually states or conveys, either explicitly or as a matter of reasonable inference. To adapt the language used by Gummow J in Propend and Anderson J in Dalleagles, the question is whether the disclosure of the document in question will directly reveal, or allow its reader to infer, the actual content or substance of a privileged communication.[30]

[28] Provided the underlying communication is privileged, the rule of legal professional privilege will extend to such documents without the necessity of again applying the dominant purpose test.[31]

[29] Legal advice, in the context of advice privilege, is fairly broad and it goes beyond formal advice as to the law, and extends to professional advice as to what a party should prudently or sensibly do in a relevant legal context, but does not extend to advice that is purely commercial.[32]

[30] As Dawson J stated in Baker v Campbell:[33]

The privilege cannot operate to put beyond the reach of the law documentary or other material which has an existence apart from the process of giving or receiving advice or the conduct of litigation.[34]

[31] The party asserting an entitlement to claim privilege has the onus of proving the facts on which the claim for privilege is said to be founded.[35] Claims for legal professional privilege must be proven and not merely asserted. In Grant v Downs,[36] Stephen, Mason and Murphy JJ relevantly stated:

It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought in to existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence.[37]

[32] Similarly, in Barnes and Anor v Commissioner of Taxation,[38] Tamberlin, Stone and Siopsis JJ relevantly stated:

[18] The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallace (2004) 142 FCR 185; 213 ALR 108; [2004] FCAFC 337 (Kennedy), Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S [1991] FCA 234; (1991) 29 FCR 203 at 211; [1991] FCA 234; 100 ALR 151 at 158-60 (per Lockhart J); Grant at CLR 689; ALR 589 (per Stephen, Mason and

Murphy JJ). Where possible the court should be assisted by evidence of the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document. The fact that generalised evidence is not challenged in cross-examination does not mean that such evidence must be accepted, particularly when it is as manifestly inadequate as it is in this case. As in Kennedy, mere general assertions of the purpose of creation of the documents are insufficient to discharge this onus. Even though in that case some evidence as to the purpose of particular records was adduced, Allsop J at [168] considered that the onus had not been discharged because the evidence did not permit a conclusion to be drawn as to the dominant purpose of the creation of any particular document or entry in a document. Simply to show that one purpose for creation of the document was to obtain legal advice or assistance is not good enough.[39]

[33] While the mere assertion that disclosure of a document may tend to reveal privileged material is inadequate to enliven the privilege, that does not impede the drawing of inferences from the available material.[40]

[34] In respect of the determination of whether documents attract legal professional privilege, it is not in dispute that the documents may be inspected (by the relevant court or tribunal) to make that determination.[41] In Esso Australia Resources Ltd v Commissioner of Taxation,[42] Gleeson CJ, Gaudron and Gummow JJ relevantly stated (citations omitted):

[52] Although it has no direct bearing upon the issue now under consideration, reference should be made to a point emphasised both in the joint judgment in Grant v Downs and by Cooke J in Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart. A claim for privilege is not conclusively established by the use of a verbal formula. A court has power to examine documents in cases where there is a disputed claim, and it should not be hesitant to exercise such a power. In appropriate cases, there is also power to allow cross-examination of a deponent of an affidavit claiming privilege.

[50] The Court has the power to examine documents in respect of which a claim is made: Grant v Downs at 689. The preferable explanation of the Court's power to inspect the documents is that it exists not to facilitate proof by a claimant of the facts required to sustain the claim, but to provide a means of enabling a claim to be scrutinised and tested: Hancock at [31]. The essential purpose of inspecting the documents is "to determine whether, on its face, the nature and content of the document supports the claim for legal professional privilege": AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 at [44(12)]. It is relevant to note, in this context, that "in many instances the character of documents the subject of the claim will illuminate the purpose for which they were brought into existence": Grant v Downs at 689. A party is not entitled to insist on the court inspecting the documents, it being a matter for the discretion of the judge, who will only do so if there is good reason: Hancock at [31], citing Westminster Airways Ltd v Kuwait Oil Co Ltd [1951] KB 134 at 146, District Council of Mallala v Livestock Markets Ltd [2006] SASC 80; (2006) 94 SASR 258 at [30], Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529 at 542.

[36] In the recent case of Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd (No 2) ('Mastercard'),[43] the Australian Competition and Consumer Commission challenged claims of legal professional privilege made by the respondents in respect of certain discovered documents which were the subject of redactions. The respondents relied on an affidavit of a partner of their law firm (Ms Foster) in support of the claims of legal professional privilege. Justice Halley relevantly stated:

[14] It is also well established that the Court may inspect documents the subject of disputed claims for privilege: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689 (Stephen, Mason and Murphy JJ); Esso Australia Resources at [52] (Gleeson CJ, Gaudron and Gummow JJ).

[15] In its written submissions, the ACCC contended that in many respects, the evidence of Ms Foster was not sufficiently focussed and specific to establish the basis of its claims. It submitted that the generality and imprecision of Ms Foster's evidence with respect to certain claims means that the Court will be less likely to conclude that the relevant documents are privileged.

[16] Further the ACCC contended in its written submissions, and initially in its oral submissions that the Court should consider the material that is in evidence before making any decision to inspect the Documents on the basis that the power to inspect should be exercised to enable a claim of privilege to be scrutinised and tested, not to facilitate proof by a claimant, citing in support the decision of Wigney J in Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232 at [50].

[18] It became apparent in the course of the hearing and from the detailed written submissions relied upon by the ACCC and Mastercard, respectively challenging and seeking to support the claims for privilege, that an inspection of the Documents by the Court after the conclusion of the hearing would best facilitate a just resolution of the disputed claims for privilege. Necessarily, the explanations given by Ms Foster in support of the privilege claimed were largely generic and formulaic. More specific explanations would likely have led to at least the partial disclosure of the very privilege sought to be protected. The explanations proffered by Mastercard therefore could not, and in context did not, provide a compelling answer to the detailed critiques advanced by the ACCC of the adequacy and sufficiency of those explanations to enable the Court to conclude that the redacted portions in each of the Documents are privileged.

[19] I therefore advised the parties at the conclusion of the hearing that I would inspect each of the unredacted copies of the Documents to determine whether I was satisfied, in the context of the explanations provided by Ms Foster, that the claims for privilege should be upheld. I accept that the disadvantage of this course is that my reasoning will necessarily not be disclosed and the ACCC will not have any opportunity to make submissions directed at the redacted portions of the Documents. This disadvantage, however, is outweighed, at least in the circumstances of this case, by the advantage of the Court being able to determine whether the claims for privilege are sound by considering the material over which privilege is claimed, rather than having to rely on submissions and evidence expressed in terms that do not directly engage with the material over which privilege has been claimed.

Does the redacted text in the four briefing notes enliven the rule of legal professional privilege?

[37] In its principal written submissions, and its written submissions in reply, the OIR assumed that legal professional privilege was enlivened in respect of the redacted text of the four briefing notes. It then proceeded to make its arguments as to why it had not waived that legal professional privilege.[44]

[38] Mr McDonald's affidavit was not an affidavit of the kind referred to in MasterCard; that is to say, Mr McDonald does not give any evidence in support of the claims that the redacted text of the four briefing notes were of a nature that enlivened legal professional privilege. The OIR merely asserted that the redacted text of the four briefing notes attracted the rule of legal professional privilege.

[39] In my view, the approach taken by the OIR was wrong. It cannot merely assert legal professional privilege is enlivened in respect of the four briefing notes and then argue why that privilege has not been waived by it.

[40] The OIR, in its written submissions, indicated that, if necessary, it would provide unredacted versions of the four briefing notes.[45] Mr Hartley pressed me to inspect the four briefing notes in an unredacted state; but principally this was for the purpose of determining if he had been treated fairly in a general sense;[46] or in Mr Hartley's submission, '... to verify the completeness and neutrality of the decision making process'[47] in the decision to dismiss him. I explained to Mr Hartley that was not a function that the Commission had power to perform.[48] However, earlier in his submissions, Mr Hartley seemed to submit that the Commission should inspect the four unredacted briefing notes to determine whether any legal professional privilege that subsists in them was impliedly waived on the basis of issue waiver.[49]

[41] During the course of the hearing, as a consequence of the approach taken by the OIR, I indicated to counsel for the OIR that to properly discharge my function of determining Mr Hartley's application and the OIR's resistance to it, I needed to be satisfied that the redacted text of the four briefing notes would attract the rule of legal professional privilege, and that, therefore, it was necessary for me to inspect the unredacted versions of the four briefing notes.[50] The OIR then produced unredacted copies of the four briefing notes for my inspection.

[42] In making this determination, I acknowledge the difficulties that may arise from determining a claim of legal professional privilege by the Commission inspecting the documents in the absence of other evidence which may tend to prove the purpose of the communications. The difficulties include the issue of unfairness to the parties in the formulation of reasons for decision which do not disclose the privileged material.[51] However, in the present case, I consider such an inspection to be the only viable course given that the OIR has merely asserted that legal professional privilege subsists in the four briefing notes and has provided no other evidence that may tend to prove that such privilege does subsist.

[43] The inspection I conducted was for the purpose of scrutinising and testing the claim that the redacted text of the four briefing notes reveal communications between the OIR and its lawyers made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.

[44] The four briefing notes were variously authored by officers of the OIR, namely, Mr Gleeson and Ms Skinner. The purpose of each of the four briefing notes is so the information, advice and recommendations contained in them could be considered by Mr McKay in respect of the decisions he was required to make as part of the disciplinary process concerning Mr Hartley. Further, Mr McKay writes his own notes in all of them. As a consequence, the briefing notes potentially fall within the fourth category of documents referred to by Lockhart J in Sterling, namely, memoranda made by officers of the client that contain a record of privileged communications.

[45] From my inspection of the unredacted versions of the four briefing notes, it is clear that they contain records of communications between officers of the OIR and lawyers employed by the State of Queensland, namely, lawyers employed in Crown Law.

The show cause liability briefing note - Exhibit PM-08 of Mr McKay's affidavit

[46] There are two redactions in this briefing note.

[47] The first redaction is on the first page (page 75 of Mr McKay's affidavit) and all of the two paragraphs that make up the fifth and sixth dot points are redacted.

[48] The paragraph that makes up the fifth dot point on page 75 of Mr McKay's affidavit refers to the fact that, on a particular date, Mr McKay directed he receive advice and assistance from Crown Law to prepare a show cause notice about liability for discipline findings after deciding to commence a disciplinary action. That text does not directly reveal, or allow the drawing of an inference of, the actual content or substance of any legal advice sought or given. Legal professional privilege is not enlivened in respect of this paragraph.

[49] The paragraph that makes up the sixth dot point on page 75 of Mr McKay's affidavit does directly reveal, within the text itself and by way of referenced documentary attachments, the actual content of privileged communications, namely, confidential communications between an officer of the OIR and a Crown Law lawyer made for the dominant purpose of giving legal advice. Legal professional privilege is enlivened in respect of this paragraph and the attachments.

[50] The second redaction is also on the first page (page 75 of Mr McKay's affidavit) in the first line of the paragraph that makes up the seventh dot point. The fifth to ninth words are redacted. That text refers to the fact of Crown Law providing advice and does not directly reveal, or allow the drawing of an inference of, the actual content or substance of legal advice sought or given. Legal professional privilege is not enlivened in respect of this paragraph.

The show cause penalty briefing note - Exhibit PM-13 of Mr McKay's affidavit

[51] There are four redactions in this briefing note.

[52] The first redaction is on the first page (page 169 of Mr McKay's affidavit) in the fourth line of the paragraph that makes up the sixth dot point. The fourth to eleventh words are redacted. That text refers to the fact that, on a particular date, Mr McKay directed he receive assistance from Crown Law to provide advice and prepare a decision on a disciplinary finding, and about the continuation of disciplinary action. That text does not directly reveal, or allow the drawing of an inference of, the actual content or substance of legal advice sought or given. Legal professional privilege is not enlivened in respect of this paragraph.

[53] The second redaction is also on the first page (page 169 of Mr McKay's affidavit). All of the paragraph that makes up the seventh dot point is redacted. That text does directly reveal, within the text itself, and by way of referenced documentary attachments, the actual content of privileged communications, namely, confidential communications between an officer of the OIR and a Crown Law lawyer made for the dominant purpose of giving legal advice. Legal professional privilege is enlivened in respect of this paragraph and the attachments.

[54] The third redaction is on the third page (page 171 of Mr McKay's affidavit) in the first and second lines of the second paragraph under the heading 'NOTES'. The seventeenth to twenty-third words are redacted. That text refers to the fact of Crown Law advice and does not directly reveal, or allow the drawing of an inference of, the actual content or substance of legal advice sought or given. Legal professional privilege is not enlivened in respect of this paragraph.

[55] The fourth redaction is also on the third page (page 171 of Mr McKay's affidavit) in the first line of the third paragraph under the heading 'NOTES'. The eighth to twelfth words are redacted. That text refers to the fact of Crown Law providing advice and does not directly reveal, or allow the drawing of an inference of, the actual content or substance of legal advice sought or given. Legal professional privilege is not enlivened in respect of this paragraph.

The continuation of disciplinary action briefing note- Exhibit PM-16 of Mr McKay's affidavit

[56] There are five redactions in this briefing note.

[57] The first redaction is on the first page (page 226 of Mr McKay's affidavit) in the fourth line of the paragraph that makes up the fifth dot point. The fourth to eleventh words are redacted. That text refers to the fact that Mr McKay directed he receive assistance from Crown Law to be provided with advice and to prepare a show cause notice about a disciplinary finding and proposed disciplinary action to continue disciplinary action. That text does not directly reveal, or allow the drawing of an inference of, the actual content or substance of legal advice sought or given. Legal professional privilege is not enlivened in respect of this paragraph.

[58] The second redaction is also on the first page (page 226 of Mr McKay's affidavit). The whole of the paragraph that makes up the sixth dot point is redacted. That text refers to the fact that on a particular date, Crown Law provided the advice and assistance referred to in the previous paragraph of these reasons. That text does not directly reveal, or allow the drawing of an inference of, the actual content or substance of legal advice sought or given. Legal professional privilege is not enlivened in respect of this paragraph.

[59] The third redaction is on the second page (page 227 of Mr McKay's affidavit), in the seventh line of the paragraph that makes up the first dot point. The sixth to tenth words are redacted. That text refers to the potential of Mr McKay seeking advice from Crown Law. That text does not directly reveal, or allow the drawing of an inference of, the actual content or substance of legal advice sought. Legal professional privilege is not enlivened in respect of this paragraph.

[60] The fourth redaction is on the third page (page 228 of Mr McKay's affidavit) in the sixth and seventh lines under the heading 'RECOMMENDATION'. The sixth to sixteenth words are redacted. That text refers to the potential of Mr McKay seeking advice from Crown Law about preparing correspondence to Mr Hartley. That text does not directly reveal, or allow the drawing of an inference of, the actual content or substance of legal advice sought. Legal professional privilege is not enlivened in respect of this paragraph.

[61] The fifth redaction is also on the third page (page 228 of Mr McKay's affidavit) in the last line of the third paragraph under the heading 'NOTES'. The second to fourteenth words are redacted. That text refers to Mr McKay asking the author of the briefing note to instruct Crown law to draft correspondence to give effect to his decision to which he refers to in that section of the briefing note. That text does not directly reveal, or allow the drawing of an inference of, the actual content or substance of legal advice sought. Legal professional privilege is not enlivened in respect of this paragraph.

The penalty briefing note - Exhibit PM-18 of Mr McKay's affidavit

[62] There are seven redactions in this briefing note.

[63] The first redaction is on the first page (page 265 of Mr McKay's affidavit), in the fourth line of the paragraph that makes up the fifth dot point. The fourth to eleventh words are redacted. That text refers to the fact that Mr McKay directed he receive assistance from Crown Law to be provided advice and to prepare a show cause notice about a disciplinary finding and proposed disciplinary action. That text does not directly reveal, or allow the drawing of an inference of, the actual content or substance of legal advice sought or given. Legal professional privilege is not enlivened in respect of this paragraph.

[64] The second redaction is also on the first page (page 265 of Mr McKay's affidavit) where the whole of the paragraph that makes up the sixth dot point is redacted. That text refers to the fact that on a particular date, Crown Law provided the advice and assistance referred to in the previous paragraph of these reasons. That text does not directly reveal, or allow the drawing of an inference of, the actual content or substance of legal advice sought or given. Legal professional privilege is not enlivened in respect of this paragraph.

[65] The third redaction is on the second page (page 266 of Mr McKay's affidavit), in the first line of the paragraph that makes up the first dot point. The sixth to eighth words are redacted. That text refers to the fact that Mr McKay directed Crown Law to prepare a termination of employment penalty letter. That text does not directly reveal, or allow the drawing of an inference of, the actual content or substance of legal advice sought or given. Legal professional privilege is not enlivened in respect of this paragraph.

[66] The fourth redaction is also on the second page (page 266 of Mr McKay's affidavit) in the second line of the paragraph that makes up the first dot point. The third to eighth words are redacted. That text refers to the fact that Mr McKay directed he receive advice from Crown Law. That text does not directly reveal, or allow the drawing of an inference of, the actual content or substance of legal advice sought or given. Legal professional privilege is not enlivened in respect of this paragraph.

[67] The fifth redaction is also on the second page (page 266 of Mr McKay's affidavit). The whole of the paragraph that makes up the second dot point is redacted. That text does directly reveal, within the text itself and by way of a referenced documentary attachment, the actual content of a privileged communications, namely, a confidential communications between an officer of the OIR and a Crown Law lawyer made for the dominant purpose of giving legal advice. Legal professional privilege is enlivened in respect of this paragraph and the attachment.

[68] The sixth redaction is on the third page (page 267 of Mr McKay's affidavit) in the first line of the first paragraph under the heading 'NOTES'. The fourth to seventh words are redacted. That text states that Mr McKay had considered the Crown Law advice. That text does not directly reveal, or allow the drawing of an inference of, the actual content or substance of legal advice sought or given. Legal professional privilege is not enlivened in respect of this paragraph.

[69] The seventh redaction is on the third page (page 267 of Mr McKay's affidavit) in the fourth line of the first paragraph under the heading 'NOTES'. The third to seventh words are redacted. That text refers to a statement that the matters referred to in the preceding sentence in that first paragraph were well set out in, amongst the other documents expressly referred to, the Crown Law advice. That text does not directly reveal, or allow the drawing of an inference of, the actual content or substance of legal advice sought or given. Legal professional privilege is not enlivened in respect of this paragraph.

[70] Mr Hartley did not seek disclosure of any attachments to the briefing notes. Even if he did, I would not have found in his favour in respect of the redacted text of the four briefing notes that referenced attachments, where the attachments themselves contain privileged communications.

[71] For the reasons I have given, legal professional privilege subsists in the following redacted text of the four briefing notes contained in Mr McKay's affidavit:

• in respect of Exhibit PM-08 of Mr McKay's affidavit - the paragraph that makes up the sixth dot point on page 75 of Mr McKay's affidavit, and the attachments referenced in that paragraph;

• in respect of Exhibit PM-13 of Mr McKay's affidavit - the paragraph that makes up the seventh dot point on page 169 of Mr McKay's affidavit and the attachments referenced in that paragraph; and

• in respect of Exhibit PM-18 of Mr McKay's affidavit - the paragraph that makes up the second dot point on page 266 of Mr McKay's affidavit and the attachment referenced in that paragraph.

To the extent legal professional privilege has been enlivened in respect of the redacted text of the four briefing notes, has that privilege been waived by the OIR?

[72] In Mann v Carnell,[52] Gleeson, CJ, Gaudron, Gummow and Callinan JJ stated (citations omitted):

[28] At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received.

[29] Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

[73] The onus of proof lies on the party alleging that the legal professional privilege has been lost.[53]

[74] In its written submissions, the OIR submitted that it did not rely on the contents of any advice to establish a claimed state of mind of Mr McKay,[54] being a submission that recognises a form of implied waiver known as 'issue waiver' which arises where a party's state of mind is put in issue. As referred to earlier, Mr Hartley, in his oral submissions, raised the matter of whether any legal professional privilege that subsists in the four redacted briefing notes had been impliedly waived on the basis of issue waiver.[55]

[75] In Telstra Corporation Ltd v BT Australasia Pty Ltd,[56] the majority stated of this particular principle of implied waiver:

It does not constitute a broad inroad into legal professional privilege as a "substantive and fundamental common law principle" (Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 122 per Deane J). Nor does it involve any balancing of competing public interests, one in facilitating the application of the rule of law by promoting frank communication between clients and their legal advisers, the other in ensuring that all relevant evidence is placed before a court adjudicating as to the legal rights of parties before it: the recognition of the privilege is itself the outcome of such a balancing process: Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 64-65; Carter at 128. Nor is it a consequence of the principle that whenever a person's state of mind is relevant to an issue in proceedings, privilege is taken to be waived in relation to legal advice that may have played part in the formation of that state of mind (so that the principle does not, for example, deny the authority of Kennedy v Lyell (1883) 23 Ch D 387; Lyell v Kennedy (No 2) (1883) 9 App Cas 81). It is unnecessary and inappropriate, having said those things, to attempt to define exhaustively the scope of the principle. Where, however, a party relies on a cause of action, an element of which is the party's state of mind (including the quality of the party's assent to a transaction) the party is taken to have waived privilege in respect of legal advice which the party had, before or at the time of the relevant events, material to the formation of that state of mind.[57]

[76] In DSE (Holdings) Pty Ltd v InterTAN Inc,[58] Allsop J described the waiver arising where:

[T]he party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication.[59]

[77] The governing principle requires a fact based enquiry as to whether, in effect, the privilege holder has directly or indirectly put the contents of an otherwise privileged communication in issue in litigation, either in making a claim or by way of defence.[60]

[78] Four other matters may be stated in respect of this principle.

[79] One, claims made about implied waiver, arising where a party's state of mind is put in issue, are very much decided on the facts of the case under consideration.[61]

[80] Two, the mere denial (by a respondent) of an assertion made by (an applicant) is not an act by the respondent which expressly or impliedly makes an assertion about the contents of any privileged communication or which necessarily lays any such communication open to scrutiny. While there may be a joinder of issue on a question of fact to which the privileged communication can be seen as relevant, that is insufficient to conclude that there exists the necessary inconsistency with the maintenance of the confidentiality.[62]

[81] Three, the fact a person raises an issue as to their state of mind, and the basis for it, may not waive privilege over legal advice that may have contributed to their state of mind. In Commissioner of Taxation v Rio Tinto Ltd, the Full Court of the Federal Court stated:

[67] Further, in exposing his states of mind and the basis for it, the Commissioner would not ordinarily act in a manner inconsistent with the maintenance of privilege over legal advice relevant to his attaining a state of satisfaction or exercising his discretion in a particular way. Since the decision of the majority of the High Court in Waterford, it is plain enough that legal professional privilege may attach to communications brought into existence by government officers seeking or giving legal advice as to the nature and extent of governmental powers, whether statutory or otherwise: see Waterford at 63-64 per Mason and Wilson JJ and 74-75 per Brennan J. Even though such communications may contribute to the decision-making, the mere reference to this fact by a decision-maker in the course of defending a judicial review application or on a taxation appeal is not inconsistent with the maintenance of the privilege: compare Webb v Commissioner of Taxation (Cth) (1993) 44 FCR 312 at 317 per Cooper J and Lovegrove at [24] per Pullin J. This is because the decision-maker (here the Commissioner) would not put such legal advice in issue merely by saying that the advice was relevant or contributed to his decision. There would be no issue waiver because the decision-maker would not have done anything inconsistent with the maintenance of privilege. The situation might be otherwise if the decision-maker puts the contents of the legal advice in issue by specifically relying on the contents of the advice (and not merely the fact of the advice) to vindicate his claimed state of satisfaction or exercise of discretion.[63]

[82] In FX Group Holdings Pty Ltd v Perpetual Trustee Co Ltd as trustee of the CPEC 8 Trust A (formerly the CHAMP IV Trust A) (waiver of privilege)[64] Rees J put this way:

[T]here must be something more than putting a party's state of mind in issue; it must also be shown that the legal advice was relevant in the formation of that state of mind and reliance on that advice must be pleaded or an essential element of the claim.[65]

[83] Four, the mere assertion that advice has been taken, and the fact that action is then taken, is not sufficient to conclude that there has been waiver. If the advice and the action are linked so that it is apparent that the advice has been that action is taken, then that may be a sufficient basis to make a finding of waiver.[66]

[84] The facts of Rio Tinto illustrate the application of this principle of implied waiver.

[85] Rio Tinto Ltd objected to particular assessments made by the Commissioner of Taxation based on the Commissioner's state of satisfaction of a certain fact and the exercise of certain of the Commissioner's discretions. Rio Tinto Ltd appealed against those assessments. The Commissioner filed a statement of contentions in respect of which Rio Tinto Ltd subsequently sought particulars. The provided particulars disclosed eight privileged documents which were relevant to the Commissioner in reaching his state of satisfaction and in the exercise of the relevant discretions.[67]

[86] The Court stated that if the particulars merely disclosed that the Commissioner took into account legal advice in reaching his state of satisfaction and exercising his discretions, then that disclosure would not be inconsistent with the maintenance of privilege.[68] However, the Court then stated:

[72] The Commissioner has not, however, simply said that the eight privileged scheduled communications were relevant to reaching his state of satisfaction or exercising his discretions. Nor has he said that he took them into account in so doing. We interpolate that a document may be relevant to a decision without evidencing any matter taken into consideration in the making of it (as, eg, an instrument conferring authority to make the decision). The Commissioner could have identified his bases for satisfaction and exercises of discretion by listing the matters he took into account in each case, but he did not do so. Instead, he identified his bases for satisfaction and exercises of discretion as the matters evidenced in the scheduled documents. In so doing, the Commissioner did more than make an assertion about the relevance of these communications. In his particulars, the Commissioner has said that he took into account the matters evidenced by numerous documents, including the eight privileged scheduled documents. In so doing, the Commissioner has made an assertion that puts the contents of these eight documents in issue, or necessarily lays them open to scrutiny, with the consequence that there is an inconsistency between the making of the assertion and the maintenance of the privilege.[69]

Has the OIR impliedly waived the legal professional privilege that subsists in the four briefing notes?

[87] In its written submissions, the OIR submits that:[70]

• in assessing whether legal professional privilege has been waived, the question for the Commission is whether the conduct on the part of the holder of the privilege is inconsistent with the maintenance of confidentiality;[71]

• even if a privileged document was relevant or contributed to a particular course of conduct, that fact would not, of itself, waive the privilege unless the contents of the advice (and not merely the fact of the advice) are put in issue by relying on the contents of the advice to establish a claimed state of mind;[72]

• the mere assertion of a belief does not, in all circumstances, waive privilege in any legal advice or confidential communication that could be relevant to whether such a belief was held or the reasonableness of such belief;[73] and

• the relevant questions in this matter regarding waiver are:

• - has it put the contents of the otherwise privileged communication in issue such to be regarded as inconsistent with maintenance of the privilege?

• - has it expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence?[74]

• the relevant inquiry is whether the four briefing notes were put in issue by being exhibited to Mr McKay's affidavit;

• the OIR does not rely on the contents of any advice to establish a claimed state of mind of Mr McKay and it has submitted to the Commission that its task in this proceeding is to resolve the following questions:

• - did Mr Hartley, in fact, engage in the conduct for which he was dismissed?

• - was the disciplinary process and the decision-making process undertaken by the OIR procedurally fair to Mr Hartley?

• - is the penalty of dismissal proportionate to the conduct? and

• - in the event that the Commission does determine that Mr Hartley's dismissal was unfair, what remedy should be granted and, in particular, is reinstatement practicable?

• there has been no express or implied assertion about the content of the privileged communications in that Mr McKay expressly affirmed in his affidavit that the briefing notes were redacted on the basis of legal professional privilege, he did not waive privilege over the briefing notes, and he did not otherwise impliedly make any assertion about the content of any privileged communication; and

• Mr Hartley is not unfairly precluded from understanding the reasons for Mr McKay's decisions and that those reasons, and the process adopted by Mr McKay, are plainly revealed in the material included in his affidavit, including the briefing notes and other documents that formed part of the disciplinary process leading to Mr Hartley's dismissal.

[89] As referred to earlier, claims made about implied waiver, arising where a party's state of mind is put in issue, are very much decided on the facts of the case under consideration.

• the action commenced by Mr Hartley is his claim for reinstatement in which he alleges that his dismissal was harsh, unjust or unreasonable and where the onus of proof is on him to prove that his dismissal was harsh, unjust or unreasonable;

• in respect of the three redacted briefing notes in which legal professional privilege subsists,[76] Mr McKay, in his affidavit, while he states he considered those briefing notes,[77] does not state that he specifically relied on the contents of the advice to vindicate his material decisions in the disciplinary process concerning Mr Hartley, including his decision to dismiss Mr Hartley; and

• in each of the briefing notes (which refer to privileged communications) Mr McKay gives his own reasons for taking the relevant decisions in the disciplinary process concerning Mr Hartley (following the provision to him of the relevant briefing notes); and Mr McKay did not, in his giving of any of those reasons, state that he specifically relied on the contents of the advice to come to each of the relevant decisions.[78]

[91] For these reasons, I am not of the view that Mr McKay has done anything inconsistent with the maintenance of the legal professional privilege which subsists in the briefing notes which contain privileged communications.

[92] There are no other facts that give rise to any contention that Mr McKay has engaged in any conduct which is inconsistent with the maintenance of the legal professional privilege which subsists in the briefing notes which contain privileged communications.

[93] The only other potential way that Mr McKay could have engaged in any conduct which was inconsistent with the maintenance of the legal professional privilege which subsists in the briefing notes, is on the basis of another kind of implied waiver, namely, the partial disclosure of legal advice or privileged communications.

[94] In Osland v Secretary, Department of Justice,[79] the applicant sought documents prepared by lawyers about advice in response to the applicant's petition for an executive pardon. The Attorney-General of Victoria issued a press release which referred to joint advice (from a panel of three senior counsel) and which stated the '... joint advice recommends on every ground that the petition should be denied.' The question was whether that sentence in the press release waived the legal professional privilege of the otherwise privileged communications.

[95] Gleeson CJ, Gummow, Heydon and Keifel JJ stated (citations omitted):

[45] Waiver of the kind presently in question is sometimes described as implied waiver, and sometimes as waiver "imputed by operation of law". It reflects a judgment that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Such a judgment is to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances. In the case of Benecke, referred to in Mann v Carnell, and discussed by Maxwell P in the present case, an appreciation of the unfairness if Mrs Benecke could give her version of her communications with her lawyer and at the same time prevent the lawyer from giving her own version was one aspect of the inconsistency between her conduct in making certain kinds of allegation against her lawyer and holding her lawyer to obligations of confidentiality. In the present case counsel for the appellant acknowledged that, if the press release had not included the sentence earlier identified as critical, privilege probably would not have been waived. This is undoubtedly correct, even though, upon that hypothesis, the press release would have made some disclosure concerning legal advice taken by the Department.

[49] Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd, questions of waiver are matters of fact and degree. It should be added that we are here concerned with the common law principle of waiver, not with the application of s 122 of the Evidence Act 1995 (Cth) which, as was said in Mann v Carnell, has the effect that privilege may be lost in circumstances which are not identical to the circumstances in which privilege may be lost at common law.

[96] In Krok v Commissioner of Taxation ('Krok'),[80] Wigney J stated:

[26] Where a party to litigation discloses or deploys a partial disclosure of legal advice in order to achieve some forensic advantage, while claiming privilege and thereby seeking to deny the other party an opportunity to see the full text of the communication, this may amount to conduct inconsistent with the maintenance of privilege: Secretary, Department of Justice v Osland at [67]; Osland v Secretary, Department of Justice at [35]: British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107; (2011) 195 FCR 123 (British American Tobacco) at [46]-[47]. That is no doubt, at least in part, because the judgment as to inconsistency is to be made not only in the context and circumstances of the case, but also in light of any considerations of fairness arising from the context and circumstances: Osland v Secretary, Department of Justice at [45].

[27] Questions of waiver are matters of fact and degree: Nine Films and Television Pty Ltd v Ninox Television Ltd [2005] FCA 356; (2005) 65 IPR 442. Each case will turn on its own facts and circumstances and other cases in which implied waiver has been considered provide limited guidance unless they arise out of similar facts: Rio Tinto at [45].

[97] In Krok, the appellant, in his appeal against decisions of the Commissioner of Taxation to disallow certain objections to notices of assessment of income tax, sought to rely on affidavits which, in part, disclosed '...the gist' of legal advice given to him by three different lawyers.[81] The Commissioner of Taxation subsequently sought pre-trial discovery of the documents recording the advice given to Mr Krok by those lawyers. Justice Wigney found that the partial disclosure of the substance of the legal advice Mr Krok received was inconsistent with the confidentiality that would otherwise attach to such communications, such that the privilege had been waived.[82] In coming to that conclusion, Wigney J stated:

[37] More fundamentally, it may be readily inferred that Mr Krok's purpose in disclosing the gist, substance or effect of the advice was, and is, to advance his case in his taxation appeals. It may therefore readily be concluded that Mr Krok's purpose in "deploying" a partial disclosure of the advice was, and is, to secure a forensic advantage in the proceedings. In these circumstances it would be unfair to deny the Commissioner an opportunity to see the full text of the otherwise privileged communications.

[38] The unfairness is manifest. Whilst Mr Krok seeks to deploy the partially disclosed advice to support his case that the arrangements were not a sham and were not for the purpose of securing a tax advantage, the Commissioner is effectively denied the opportunity to scrutinize the advice and test whether what has been disclosed is accurate and complete. The partial disclosure of the advice has, in other words, necessarily put in issue and laid open to scrutiny the confidential communications.

[39] The context and circumstances of the disclosure in this case are far removed from the context and circumstances in cases such as Osland v Secretary, Department of Justice and British American Tobacco; see too College of Law Limited v Australian National University [2013] FCA 492. In those cases, the relevant disclosures had nothing to do with use in pending litigation and the purpose of the disclosures had nothing to do with securing an advantage for the disclosing party.

[98] On the basis of the material before me, the four briefing notes prepared for Mr McKay, as part of his decision-making in respect of the disciplinary process against Mr Hartley, were not prepared by Crown Law lawyers, but by Mr Gleeson and Ms Skinner. Three of the briefing notes did, for the reasons I have given earlier, reference some privileged communications. Other than that, the information, advice and recommendations contained in the briefing notes were provided by either Mr Gleeson or Ms Skinner who were not lawyers giving legal advice. For these reasons, the briefing notes could only contain privileged communications to the extent such privileged communications are referenced within them.

[99] Mr McKay, in his affidavit, expressly recognised that the content of the briefing notes did include some communications in which, in his view, there subsisted legal professional privilege. In that regard, Mr McKay, when exhibiting the briefing notes, expressly redacted the parts of the text of the briefing notes in which he considered legal professional privilege subsisted. Further, in his affidavit, Mr McKay expressly stated that he did not waive any such legal professional privilege.

[100] Having regard to these facts and circumstances, there can be no viable contention that Mr McKay waived the legal professional privilege subsisting in the briefing notes. No unfairness arises because Mr McKay did not, in his affidavit, deploy any aspect of the legal advice he received to secure a litigious advantage for the OIR while withholding other aspects of the legal advice he received. For this reason, no implied waiver by partial disclosure of privileged communications could arise.

[101] For these reasons, the OIR should produce to Mr Hartley the briefing notes in an unredacted form other than in respect of the text redactions in the briefing notes in which legal professional privileged subsists.

[102] Mr Hartley's application for reinstatement needs to be set down for hearing. I will mention Mr Hartley's application for the purpose of setting hearing dates.

1. Pursuant to r 41 of the Industrial Relations (Tribunals) Rules 2011, the Respondent must, within seven days of the date of this order, produce to the Applicant:

(a) Exhibit 'PM-08' to the affidavit of Mr Peter McKay filed on 27 May 2025 in Matter No. TD/2024/30 ('Mr McKay's affidavit'), without any text redacted, other than the text of the paragraph that makes up the sixth dot point on page 75 of Mr McKay's affidavit which must remain redacted;

(b) Exhibit 'PM-13' to Mr McKay's affidavit, without any text redacted, other than the text of the paragraph that makes up the seventh dot point on page 169 of Mr McKay's affidavit which must remain redacted;

(c) Exhibit 'PM-16' to Mr McKay's affidavit without any text redacted; and

(d) Exhibit 'PM-18' to Mr McKay's affidavit, without any text redacted, other than the text of the paragraph that makes up the second dot point on page 266 of Mr McKay's affidavit which must remain redacted.

1. That there be a telephone mention of this matter at 9.00 am on Monday, 30 March 2026.

[1] [2025] QIRC 233.

[2] The affidavit of Mr Peter McKay filed on 27 May 2025 ('Mr McKay's affidavit'), para. 6.

[3] Ms McKay's affidavit, Exhibits 'PM-08', 'PM-13', 'PM-16' and 'PM-18'.

[4] Mr McKay's affidavit, paras. 19, 24, 31 and 35.

[5] Rule 41(2)(o) of the Industrial Relations (Tribunals) Rules 2011 relevantly provides the Commission may make a directions order relating to requiring disclosure of documents.

[6] The written submissions of the State of Queensland through the Office of Industrial Relations filed on 28 November 2025 ('the OIR's submissions'), para. 3.

[7] T 1-9, ll 25-31 and T 1-42, ll 16-44. Mr Hartley, in his oral submissions, also referred to authorities which were not referenced in his written submissions. As a consequence, I made further direction orders for the OIR to file and serve written submissions in response to those authorities (upon Mr Hartley formally providing the OIR with their citations) and for Mr Hartley to file further written submissions in reply to the OIR's submissions about the authorities to which Mr Hartley referred. The OIR elected not to make any further written submissions in response to the authorities formally cited by Mr Hartley. Mr Hartley, nevertheless, filed further written submissions. The OIR did not object to Mr Hartley's further written submissions being filed. However, those further submissions of Mr Hartley are fundamentally the same as the oral submissions he made on 18 February 2026.

[9] Mr McKay's affidavit, pages 169-172.

[10] Mr McKay's affidavit, pages 226-228.

[11] Mr McKay's affidavit, pages 265-267.

[12] Mr McKay's affidavit, Exhibit 'PM-17', pages 231-263.

[13] [2002] HCA 49; (2002) 213 CLR 543 ('Daniels').

[14] Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232 ('NSW Ports'), [38] (Wigney J).

[16] Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 ('Baker'), 108 (Brennan J).

[18] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 ('Mann'), [28] (Gleeson CJ, Gaudron, Gummow and Callinan JJ).

[19] Singtel Optus Pty Ltd v Robertson [2024] FCAFC 58; (2024) ALR 425 1, [88] (Murphy, Anderson and Neskovcin JJ).

[20] Australian Securities and Investments Commission v Insurance Australia Ltd [2026] FCA 107, [57] (Rolfe J).

[21] Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 ('Waterford'), 61-62 (Mason and Wilson JJ) and 95-96 (Dawson J).

[22] Archer Capital 4A Pty Ltd as trustee for Archer Capital Trust 4A v Sage Group plc (No 2) [2013] FCA 1098; (2013) 306 ALR 384, [59]-[73] (Wigney J).

[23] Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501 ('Propend') 515-516 (Dawson J), 543 (Gaudron J), 552, (McHugh J), 568 (Gummow J) and 585 (Kirby J).

[25] [1979] FCA 33; (1979) 36 FLR 244 ('Sterling').

[26] Sterling (n 25), 245-246. Emphasis added.

[28] Propend (n 23), 569.

[31] Standard Chartered Bank of Australia v Antico [1993] 36 NSWLR 87, 91 E-F (Hodgson J).

[32] DSE (Holdings) Pty Ltd v InterTAN Inc and Another [2003] FCA 1191; (2003) 135 FCR 151 ('DSE No. 2'), [45] (Allsop J).

[35] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 689 (Stephen, Mason and Murphy JJ).

[38] [2007] FCAFC 88; (2007) 242 ALR 601.

[39] Emphasis in the original. See also Quarter Turn Pty Ltd v Reinteractive Pty Ltd (No 2) [2025] FCA 1389, [9] (Goodman J) and Dexus Capital Investment Services Pty Ltd aft Dexus Diversified Infrastructure Trust A v Australia Pacific Airports Corporation Ltd [2026] NSWSC 125, [9] (Muston J).

[41] In the present case, the Commission's power to inspect the documents is derived from s 451(1) of the Industrial Relations Act 2016, namely, the power '... to do all things necessary or convenient to be done for the performance of its functions.' In my view, this provision confers power to the Commission, in determining a claim of legal professional privilege, to inspect documents because such a power is '...ancillary, subsidiary or incidental' to the determination of the claim of legal professional privilege: See Re: Applications to vary the Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016 [2024] QIRC 064, [44]-[45].

[42] [1999] HCA 67; (1999) 201 CLR 49.

[43] [2025] FCA 1004.

[44] The OIR's submissions, paras. 3 and 5-18.

[46] For example, at T 1-10, ll 25-36 and T 1-16, ll 32-35.

[51] See Rinehart v Rinehart [2016] NSWCA 58, [29]-[37] (Beazley P, and Leeming and Simpson JJA).

[53] New South Wales v Betfair Pty Ltd [2009] FCAFC 160; (2009) 180 FCR 543, [54] (Kenny, Stone and Middelton JJ).

[56] [1998] FCA 901; (1998) 85 FCR 152.

[57] Ibid 167-168 (Branson and Lehane JJ). Emphasis added.

[58] [2003] FCA 384: (2003) 127 FCR 499 (DSE No. 1).

[60] Commissioner of Taxation v Rio Tinto Ltd [2006] FCA 86; (2006) 151 FCR 341 ('Rio Tinto'), [61] (Kenny, Stone and Edmonds JJ).

[63] Rio Tinto (n 60). Emphasis added.

[64] [2025] NSWSC 556.

[66] Nine Films and Television Pty Ltd v Ninox Television Ltd [2005] FCA 356; (2005) 65 IPR 442, [22] (Tamberlin J).

[70] The OIR's submissions, paras. 6-10.

[71] Citing Archer Capital 4A Pty Ltd as trustee for the Archer Capital Trust 4M v Sage Group plc (No. 3) [2013] FCA 1160, [7] (Wigney J).

[72] Citing Rio Tinto (n 60), [67].

[73] Citing Wayne Lawrence Pty Limited v Hunt & Ors t/a Hunt Musgrave and Peach [1999] NSWSC 1044, [12] (Hodgson CJ).

[74] Citing Rio Tinto (n 60), [52].

[75] The OIR's submissions, paras. 12-17.

[76] Exhibits 'PM-08', 'PM-13' and 'PM-18'.

[77] Mr McKay's affidavit, paras. 19, 24 and 35.

[78] See Mr McKay's affidavit, Exhibit 'PM-08', page 77 under the heading of 'NOTES', Exhibit 'PM-13', page 171 under the heading of 'NOTES' and Exhibit 'PM-18', page 267 under the heading of 'NOTES'.

[79] [2008] HCA 37; (2008) 234 CLR 275.

[80] [2015] FCA 51; (2015) 100 ATR 595 ('Krok').