ADMINISTRATIVE LAW – Judicial review – Occupational Health and Safety prosecution – Committal proceedings – Witness summons – Summons to produce documents – Legitimate forensic purpose – Legal professional privilege – Certiorari – Whether decision in course of committal proceeding amenable to certiorari – Occupational Health and Safety Act 2004, ss 21 and 132.

EVIDENCE – client legal privilege – internal document handed up in court to confirm decision of no further proceedings (s 7(2)(b) Director of Public Prosecutions Act 1986 (NSW)) – whether document privileged under s 118 and s 119 of Evidence Act 1995 (NSW) – whether Director of Public Prosecutions is “client” and Deputy Director is “Australian lawyer” – whether client legal privilege waived by act of Crown Prosecutor handing document up in court to be filed with the court file – whether consent imputed to client – whether court functus officio at time of handing up of document

ENVIRONMENT AND PLANNING – characterisation of development in development application – construction of local environment plan – whether fly-in-fly-out temporary accommodation for migratory workers is classifiable as “residential buildings (other than dwelling-houses and units for aged persons)”

INDUSTRIAL LAW – sham contracting – accessorial liability – whether threat to dismiss in order to reengage employee as an independent contractor – whether misrepresentation of employment relationship as a contract for services

ADMINISTRATIVE LAW – Administrative Appeals Tribunal – judicial review –Administrative Appeals Tribunal granted non-publication order – application by Commissioner to quash order – whether discretion to grant order should be exercised when pending criminal proceedings related to the same subject matter – whether failed to take into account relevant considerations or took into account irrelevant considerations – whether Tribunal failed to take into account the applicants’ rights to invoke the privilege against self-incrimination – whether Tribunal required to consider whether order would prevent or hinder the Commissioner and officers of the ATO from performing their statutory obligations and if so, whether Tribunal failed to do so – whether no evidence to justify findings that applicants intended to adduce evidence which would tend to incriminate them, that the right to remain silent and the privilege against self incrimination would be effectively removed and that the defence in the criminal proceedings would be compromised – whether Tribunal exceeded its jurisdiction by making non-disclosure order – consideration of prejudice to applicant – jurisdictional error – no evidence – findings of fact not supported by the evidence.

EVIDENCE – Privilege – Legal professional privilege – Adequacy of evidence in support of claim.

EVIDENCE – Privilege – Legal professional privilege – documents and communications with third parties – Evidence Act 2008 (Vic) s 118.

EVIDENCE – Privilege – Joint privilege – Evidence Act 2008 (Vic) s 124.

EVIDENCE – Privilege – Waiver of privilege.

EVIDENCE – Discovery of documents – Public interest immunity – Claim of immunity over Cabinet documents – What constitutes Cabinet documents – Balancing exercise between interest in non-disclosure and interest in access for litigation – Relevant factors – Documents not sufficiently relevant and do not have important bearing on issues in the case – Evidence Act 2008 (Vic) s 130.

EVIDENCE – Witnesses – Credibility evidence – Whether evidence of a previous representation admissible as credibility evidence – Whether a ‘person’ includes a corporation for the purposes of s 108A of the Evidence Act 1995 (Cth)

PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory judgment – application for stay pending determination of application for leave to appeal or appeal – recovery of tax – challenge to decision of primary judge to refuse to stay the execution of a tax judgment while Part IVC appeal pending – whether sufficient prospects of success in appeal against the refusal of the stay to justify reconsideration by a Full Court – whether primary judge erred in holding that he could not determine the merits of the pending Part IVC appeal without speculating – whether there was evidence to support the finding – whether evidence called by the Commissioner should have been admitted and, if so, whether it was sufficient to support the decision – whether primary judge applied the wrong test for considering the merits – whether substantial prejudice would result if leave were refused

23. I accept, as does the Crown, that the search warrant was not legally issued; that police entry into and the search of the premises in Groom Street pursuant to the warrant was illegal; and that the evidence obtained during the execution of the warrant was illegally obtained. I see this as a fundamental and serious breach of the law. I agree with Mr Lawton that, putting aside section 138 of the Evidence Act , the evidence obtained during the search should not be admitted during the trial of the accused.

24. Once it is found that evidence was illegally obtained, it is for the Crown to persuade me to exercise my discretion under section 138 of the Evidence Act to admit the evidence notwithstanding the illegality by which it was obtained.