Legal professional privilege allegedly waived by disclosing document's unredacted parts
Australia’s Federal Court has denied leave to appeal sought by a woman who unsuccessfully applied for disclosure of a departmental document’s redacted material and alleged that the minister for finance waived legal professional privilege by disclosing the brief’s unredacted portions.
In Rivas v Minister for Finance, [2025] FCA 824, acting for Australia’s attorney-general, the finance minister issued a finding in support of the applicant’s surrender to the Republic of Chile under s 22(2) of the Extradition Act 1988 (Cth).
On 27 September 2024, the applicant challenged the minister’s finding.
In response to orders dated 28 October 2024, the minister served the applicant with the brief for the determination, plus attachments. The minister asserted legal professional privilege over the “Departmental advice on the preconditions to and grounds for refusal for surrender,” dubbed Attachment A.
The applicant filed an interlocutory application calling for the disclosure of redacted material in the departmental brief. She alleged that the minister waived legal professional privilege by disclosing the document’s unredacted portions.
On 21 February 2025, the primary judge dismissed the interlocutory application. The judge decided that the applicant failed to show any relevant inconsistency or unfair inconsistency between Attachment A’s redacted and unredacted parts.
The applicant requested leave to appeal the judge’s interlocutory judgment.
The Federal Court of Australia saw no merit in the applicant’s proposed appeal grounds, dismissed her application for leave to appeal, and awarded the respondents costs.
First, the applicant alleged that the primary judge wrongly determined that the portions already disclosed in the departmental document did not already disclose legal advice the minister received.
The court disagreed and ruled that the departmental advice was not wholly legal advice. The court found that the judge correctly described Attachment A as a record of departmental advice over which the minister could not entirely assert legal professional privilege.
The court noted that the judge said the mere fact that the ministerial submission included legal advice was not enough to amount to a waiver, unless the applicant could show inconsistency between the maintenance of the privilege claim and the extent of the disclosed legal advice.
Second, the applicant argued that the judge failed to find that disclosing the legal advice’s conclusions and the portions of the reasoning for those conclusions would be inconsistent with the claim of privilege over the remaining reasoning.
The court also rejected this argument. The court held that the judge correctly found no inconsistency arising from the disclosure of Attachment A’s unredacted, but not the redacted, portions.
Third, the applicant contended that the judge misapprehended the nature of the parties’ cases, the relevance of the material subject of redactions for legal professional privilege, and the unfairness in the partial disclosure. The court also disagreed with this contention and saw no misapprehension.
Lastly, the court said the applicant would not suffer substantial injustice if it refused leave to appeal, even if the primary judge’s decision was wrong. The court did not see enough doubt in the interlocutory judgment to justify reconsidering it on appeal.
