Justice Yaseen Shariff of the Federales has issued a stiff rebuke to an unnamed lawyer at Hunt & Hunt, acting for the Immigration Minister in an appeal against an unfavourable decision by the AAT.Justice Yaseen Shariff of the Federales has issued a stiff rebuke to an unnamed lawyer at Hunt & Hunt, acting for the Immigration Minister in an appeal against an unfavourable decision by the AAT.
See: Minister for Immigration v Peralta Montes
Shariff J overturned a tribunal decision that upheld the visa application of a Columbian who had engaged in “several instances of interrelated criminal conduct”.
The AAT was quashed and back it goes for another stab “according to law”.
HH added a postscript to his reasons, which lyrically explains some wrong footed conduct by the relevant Hunster, who wanted to know when the judgment would be handed down – even though the reasons were on the verge of being delivered inside the three month time frame.
Further wrath was incurred because Hunt & Hunt’s lawyers didn’t respond to an email from the judge’s chambers …
“POSTSCRIPT
On Wednesday, 18 June 2025, my chambers received an email from a solicitor in the employ of the law firm acting for the Minister, who I can only infer was acting under the supervision of the solicitor on the record for the Minister. The email stated as follows:
‘We refer to the above matter and confirm that we act for the Minister, the Applicant. We note that the Hearing in the above matter occurred on 25 March 2025.
We have been instructed to respectfully request an update regarding judgment, particularly whether chambers would be able to provide an estimated date for when judgment may be handed down.
We confirm that Ms Nikolic, the solicitor for the First Respondent, has been copied into this correspondence.’
This email was received by my chambers when I had completed my reasons but I was editing them for publication this week. The email came as a surprise for three reasons.
First, the position that is conveyed to litigants and the profession at [16.1] of the Central Practice Note: National Court Framework and Case Management (CPN-1), is that the Court’s position is that ‘in the ordinary course (and subject to size and complexity of the matter) the Court will endeavour to deliver judgment resolving the substantive dispute within 3 months of the receipt of final submissions’. The Central Practice Note is readily accessible by all members of the public on the Court’s website.
Second, the Central Practice Note at [16.2] identifies the appropriate course of action for parties who wish to enquire about a reserved judgment. It is expressly conveyed that it is not appropriate to contact a judge’s chambers about such an enquiry.
Third, the relevant communication indicated that the solicitor for the visa applicant had been copied to the email but it was not made apparent that she had consented to the communication. It is not clear whether, in light of [16.2] of the Central Practice Note, any consideration was given to compliance with the operation of [15.2] as to whether the consent of the other party was required before the communication was sent to chambers.
After reviewing the email, I directed my chambers to raise these matters with the Minister’s solicitors. To date, my chambers have only received a single response. It was from the visa applicant’s solicitor stating that she had not seen the correspondence before it was sent to chambers and had not consented to it being sent. There has been no response from the Minister’s solicitor on the record.
The Court expects practitioners to be versed with its Practice Notes, which as a starting point requires them to be read and understood. The Court has very clear expectations as to the communications that may be made with chambers. These expectations are set out not only in the Central Practice Note but also in the Guide to Communications with Chambers Staff.
If there had been an appropriate response, or any response, from the Minister’s solicitor on the record, I would not have been troubled enough to add this postscript to my reasons. However, the failure to respond at all has compelled me to say something about the matter lest it be assumed that it is acceptable. I wish to make clear that none of this is intended as a criticism of the solicitor (who was not the solicitor on the record) who sent the communication to chambers. The proceedings were conducted by that solicitor and the Minister’s Counsel as well as the visa applicant’s solicitor and Counsel with the utmost efficiency and professionalism, for which I am grateful.
As it happens, these reasons have been delivered within three months, as I expected they would be in line with the Central Practice Note at [16.1]. If there was any pressing urgency to the delivery of the reasons that necessitated an earlier determination that the expectation communicated in the Central Practice Note, I would have expected it to be raised with me during the course of the hearing.”
Obviously, the email sender at Hunt & Hunt had not heard of other federal judges with reserved judgments stretching for three years and beyond.
Over and out.
Justice Lisa Hespe, from the FCA’s Victorian wing, had the unhappy task of birching the admin law tribunal’s Deputy President Peter Britten-Jones.
In Commissioner of Taxation v Alcoa of Australia Ltd she found that the Deputy Prez had proceeded on a misunderstanding of the law of legal professional privilege, ending up with a decision that ran off the tracks.
Here was a case in which the Commissioner was claiming legal professional privilege, rather than the taxpayer.
The ATO was interested in Alcoa’s transfer pricing. The Commissioner’s views were set out in a Statement of Audit Position (SOAP) and Alcoa made an FOI application for documents associated with the audit statement.
This included reports from an expert in alumina supplies and pricing, where the dominant purpose of the expert, Mr Bodner, and the AGS was to enable the AGS and counsel to give legal advice to the Commissioner.
However, Britten-Jones found that disclosure made in an email together with answers by an assistant tax commissioner in cross-examination, meant that the ATO’s legal professional privilege had been waived – and this extended to any drafts of the Bodner reports and other communications and documents relating to the expert advice.
Justice Hespe was having none of it:
“From an examination of the Tribunal’s reasons as a whole, it is apparent that the Tribunal proceeded on the basis of a general and absolute rule that disclosure of the substance of advice results in a waiver over the whole of the advice. As the decision of the High Court in Osland demonstrates, there is no such general principle. The Tribunal misdirected itself as to legal principle and erred in law.”
The AAT failed to identify the correct legal principle. It was not open to the tribunal to conclude that the disclosure in the email and comments in a draft Economist Practice Report together with the assistant commissioner’s responses in cross-examination were inconsistent with the maintenance of privilege.
Much less was it open to the Tribunal to conclude that “fairness” dictated that privilege over all drafts of Mr Bodner’s report had been waived.
It was “completely unclear” how disclosures of the email and the Economist Practice Report could result in waiver of privilege over communications made after that date.
Ouch.
Appeal allowed with costs.