1 Fair Work Act 2009 s.234 - Application for an intractable bargaining declaration United Firefighters’ Union of Australia v Fire Rescue Victoria (B2023/771) DEPUTY PRESIDENT BELL COMMISSIONER ALLISON MELBOURNE, 22 OCTOBER 2025 Application for an intractable bargaining declaration - document production - legal professional privilege - public interest immunity - PII claims upheld – production otherwise to be made. [1] This decision concerns certain documents produced by Fire Rescue Victoria (FRV) pursuant to an order for production made under section 590 of the Fair Work Act 2009 (Cth) (FW Act). FRV contends a number of those documents are subject to claims of legal professional privilege (LPP) or public interest immunity (PII) and were inadvertently disclosed to the United Firefighters’ Union of Australia (UFU). [2] The substantive issue for determination in this matter involves the making of an ‘intractable bargaining workplace determination’ in accordance with section 269 of the FW Act. Aspects of the procedural history of the matter and the circumstances leading to the making of the application have been previously summarised and we refer to them.1 Those proceedings broadly commenced on 28 July 2023, when the UFU made an application for an intractable bargaining declaration pursuant to section 234 of the Act. The substantive hearing of the matter is currently on foot, having commenced on 22 September 2025. [3] The background to the immediate issue concerning document production is that, on 25 August 2025, the UFU made an application for production of various categories of documents against FRV. An order substantially reflecting the application was made on 26 August 2025, but was subsequently stayed following an objection by FRV to production. As is commonly the case, the scope of the production request was narrowed following discussion between the parties, albeit the revised scope still required the search across, and production of, a reasonably significant number of documents in a relatively short period of time. After hearing from the parties on Monday, 22 September 2025 (the first day of the substantive hearing) regarding the disputed categories, an order for production with a revised scope was issued on Tuesday, 23 September 2025 The order was returnable on Thursday, 25 September 2025. [4] By the return date, FRV produced approximately 1,600 documents in response to the order. The following day was a public holiday in Victoria. On Monday, 29 September 2025, FRV notified the Commission that it had identified a number of documents it had produced [2025] FWCFB 232 DECISION [2025] FWCFB 232 2 should not have been produced because, on FRV’s view, they were subject to valid claims of either legal professional privilege or public interest immunity. [5] Following an initial hearing of the document production issue on 29 September 2025, an interim arrangement was put in place, by consent, to preserve confidentiality pending FRV and the Minister being given time to identify the specific documents in which a privilege claim would be made and for the UFU to consider those claims. The effect of those arrangements were reflected in further orders, in which possession and inspection of the documents produced by FRV was confined to the three members of UFU’s external counsel team. FRV and/or the Minister were then to file, by 10am on 2 October 2025, any affidavit setting out a list of documents which were inadvertently disclosed in respect of which there was a claim of legal professional privilege or public interest immunity, and the basis for such claim. The purpose of that regime was to allow the UFU’s external counsel to assess the basis of the claims and to decide if those claims were opposed. To its credit, the UFU did not contend any waiver of privilege as a result of the disclosures. [6] On 2 October 2025, two affidavits in total were filed in support of the privilege claims. One affidavit was filed by a solicitor acting for FRV. The other affidavit was filed by a solicitor acting for the Minister. [7] FRV’s affidavit was directed at claims for legal professional privilege. FRV identified approximately 50 documents (not including attachments to documents, such as in the case of attachments to an email) in which a claim for legal professional privilege was made. [8] The Minister’s affidavit was directed at claims for public interest immunity. The Minister identified approximately 148 documents (including attachments) in which a claim for public interest immunity was made. [9] By 2pm, Friday 3 October 2025, the number of documents in which a potential dispute for wider inspection existed had been narrowed by the UFU’s counsel to seven documents in respect of the LPP claims and 10 documents in respect of the PII claims. The issue was listed for hearing on Monday, 6 October 2025. Again by the consent of the parties, the substantive part of that hearing was held confidentially (and reflected in orders to that effect made orally), with the result that counsel for UFU was the sole representative for the UFU. [10] For the reasons that follow: • The claims for PII are upheld, such that the UFU will not be entitled to inspect those documents. • The claims for LPP are dismissed, such that the UFU (not simply its counsel team) will be entitled to inspect those documents. Public interest immunity claims [11] At the time of the hearing on 6 October 2025, the Full Bench2 had not inspected the documents subject to the PII claims. [12] One potential issue it might be necessary to deal with is our power to inspect as an ancillary issue to determining either the LPP claims or the PII claims. For the LPP claims, no [2025] FWCFB 232 3 issue arises because there was no objection to our inspection and we have done so. For the PII claims, by contrast, the Minister’s primary position was that we should not inspect (because it was unnecessary to do so) but, more formally, we could not inspect. By contrast, the UFU contended that we could and should inspect, as inspection was appropriate, if not necessary, for the balancing exercise involved in an assessment of PII (discussed further below). [13] Following initial oral submissions by the parties on inspection, we indicated that our intention was, so far as we could, to deal with the public interest immunity documents without inspecting them. We also indicated that if, in the course of working through those claims, we felt as though we needed to inspect, we would return to the parties. [14] In the time available to us, we have not identified any definitive authority on our power under section 590 of the FW Act to inspect a document, over the objection of a party, for which there is a claim for public interest immunity. The answer to that issue lies ultimately in the scope of the power under section 590 of the FW Act, for it is only by that section where we have power to make orders for the production of documents. [15] While the inspection of the LPP documents was not in issue before us, the nature of that privilege has been settled as a “rule of substantive law”3 and provides a compelling analogy for the inspection of documents to assess a PII claim. In AWB Ltd v Cole and anor (2006) 152 FCR 382 (AWB v Cole), Young J was required to consider whether the general statutory powers to compel a person to produce documents under the Royal Commissions Act 1902 (Cth) (RC Act) abrogated legal professional privilege. His Honour held the privilege was not abrogated and, citing Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 (Daniels Corporation) (among other authorities), held that “[p]owers that are conferred in general terms, such as those found in ss 2(3A) and 6F(1) [of the RC Act], will not be construed as abrogating or adversely affecting a fundamental common law right or immunity, unless Parliament makes its intention unmistakeably clear”. [16] While there is no issue before us concerning an argument that the general powers in section 590 of the FW Act abrogate LPP, Young J also considered a submission by the Commonwealth that Commissioner Cole had an implied power to “inspect” a document for the limited purpose of determining whether a claim for legal privilege was made out. That submission “relied on an analogy with the powers of inspection that inhere in a Court: see Grant v Downs (1976) 135 CLR 674 at 689.” In support of that position, the decision records that the Commonwealth submitted: firstly, that only a Commissioner could exercise the power; secondly, a Commissioner under the RC Act had the same privileges and immunity of a High Court judge in the performance of duties; and, thirdly, a Royal Commission was of “quasi- judicial character”. Young J rejected those contentions and concluded that an implied power of inspection by the Commissioner “offends” the principles in Daniels Corporation, among others.4 [17] While the statutory scheme under the RC Act was not in the same terms as section 590 of the FW Act, similar observations might nonetheless be made of section 590 of the FW Act. Namely, the powers under section 590 of the FW Act are exercisable by the “FWC”, which are “members” (see sections 12 and 575), the rights and immunities of members of the Fair Work Commission are that of a Justice of the High Court (see section 580), and the nature of many functions of the Commission are quasi-judicial. It would be difficult to apply a different [2025] FWCFB 232 4 conclusion for the Fair Work Commission regarding the capacity to inspect a document, over objection, to make a determination of the validity of a claim for legal professional privilege consistent with AWB v Cole. [18] The issue of inspection of documents where there is a PII claim raises analogous issues to the issue of LPP considered in AWB v Cole. Public interest immunity is not a privilege per se, but the fundamental character of its immunity is long-standing. Public interest immunity is a substantive law, not an evidentiary rule: Australian Competition & Consumer Commission v NSW Ports Operations Hold Co Pty Ltd (No 3) [2020] FCA 1766 (ACCC v NSW Ports No 3) at [51]. Noting that a “fundamental common law right or immunity” of LPP will not be abrogated “unless Parliament makes its intention unmistakeably clear”,5 it would also be difficult to conclude that section 590 of the FW Act permits the inspection of a document, over the objection of a party claiming the immunity, for the purposes of allowing the Fair Work Commission to resolve a claim for PII. [19] In the present case, the Commission is not being asked to make a binding determination of whether PII exists or does not exist. There is no dispute that is a question of law that only a court can decide. While the Fair Work Commission cannot make a binding declaration of right6, it is a matter we can form an opinion about for the purposes of making orders under section 590 of the FW Act. Moreover, “no such order should be enforced until the government concerned has had an opportunity to appeal against it, or test its correctness by some other process, if it wishes to do so”.7 [20] However, even if we took the view that we could inspect, over objection, the documents subject to the PII claims, section 590 of the FW Act does not require that course of action. Section 590 permits the Commission to inform itself in such manner as it considers appropriate. Section 590 is to be read with section 589, which provides a broad discretion as to how, when and where a matter is to be dealt with, including interim decisions. [21] Even where consent to inspect documents is given, it does not follow that the Commission need do so to resolve a PII claim before the Commission. We consider it is not appropriate to do so here. In the present case, it is not appropriate having regard to the time in which inspection would be required – being the middle of an extended hearing – and where it is on the cards that there are a number of other documents where PII claims may still need to be resolved. Moreover, the documents sought are ones in which the UFU has had a forensic interest about for a very considerable period of time but delayed making its application until shortly before the hearing was to commence. [22] In any event, we do not consider it necessary to undertake inspection following orthodox principles. A “claim of public interest immunity must nonetheless be weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to a court of access to relevant and otherwise admissible evidence”.8 That is, there is a balancing exercise. [23] A facet of resolving that balancing exercise might involve inspection of the documents. In ACCC v NSW Ports No 3, Wigney J observed: [2025] FWCFB 232 5 “67 It is not always necessary for the court to inspect the documents which are the subject of a claim for public interest immunity in order to determine the claim and the court should not do so as a matter of course: Northern Land Council at 617. 68 Inspection may not be required where the claim of public interest immunity is a “class” claim based on the status of the documents as Cabinet documents and there is no apparent countervailing public interest in the proper administration of justice: Northern Land Council at 617; Spencer at [33]. Even in such a case, however, the court may inspect the documents to determine whether they “in truth” fall within that class: Northern Land Council at 617. 69 Otherwise, inspection will generally only be necessary or appropriate where it is apparent that the documents are or may be relevant and significant to the court proceedings in question. In those circumstances, inspection would be appropriate to “test whether the apparent significance of the documents to the proceedings truly justifies disclosure having regard to the strength of the claim for immunity”: Spencer at [33]; see also Northern Land Council at 619; Ticketing Corporation at [65].” [24] Here, there was no dispute that the documents “in truth” fell within a recognised category relevant to a PII claim. The UFU invited us to inspect the documents as an incident to the broader balancing exercise of their significance against the strength of the immunity claim against the “class” in which they fell. Here, a reference to “class” is best understood as reference to the statement of Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1 (Sankey v Whitlam) at 39 to mean the fact that there are “certain documents which by their nature fall in a class which ought not to be disclosed no matter what the documents individually contain.” The “class” includes:9 • Cabinet minutes and minutes of discussions between heads of departments, • papers brought into existence for the purpose of preparing a submission to cabinet, and • any documents which relate to the framing of government policy at a high level. [25] Not all documents in the “class” are entitled to the same measure of protection from disclosure10 although it is doubtful that the disclosure of documents recording actual Cabinet decisions or deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings.11 Although there are clearly different aspects of the “class” warranting stronger protection – e.g. Cabinet minutes - the Court in Spencer v Commonwealth (2012) 206 FCR 309 at [32], made clear that other documents including “papers brought into existence for the purpose of preparing a submission to Cabinet” are a recognised class prima facie entitled to protection on the grounds of public interest immunity12. The Court stated that the question in respect of both classes is “whether the relevance of the material to the proceedings in which disclosure is sought is sufficient … to justify disclosure”.13 We note as a matter of nomenclature, that although Gibbs ACJ in Sankey v Whitlam referred to a singular “class” with various components, more recent descriptions tend to refer to the components themselves as a “class”. Nothing turns on this. [26] None of the documents before us were Cabinet minutes or documents recording Cabinet decisions or deliberations. The UFU submitted, correctly we consider, all the documents were [2025] FWCFB 232 6 in the class which was most removed from the core of the class, namely they don't disclose Cabinet decisions or Cabinet deliberations. The UFU submitted the documents it seeks are rather in the nature of attachments which ultimately go in submissions which go to Cabinet.14 The affidavit filed by the Minister reflect the UFU’s submission as to the nature of the documents. The UFU contended there were broadly two types of documents ultimately sought: the first were variously described in a solicitor’s affidavit filed on behalf of the Minister as “costings” documents; the second was a draft submission intended for a sub-committee of Cabinet and an email chain seeking that submission. [27] For the costing documents (of which there were various types), they included “costings spreadsheets”, versions actually attached to submissions sent to Cabinet or a sub-committee of Cabinet,15 documents that “contained” information in briefing papers to a sub-committee of Cabinet,16 and versions of other documents where the other document was attached to a sub- committee of Cabinet.17 [28] Somewhat unusually in this case, the UFU (or its counsel) had inspected the documents. The Minister took objection to this fact, in the sense the Minister contended that the UFU should not be advantaged in circumstances where, in the usual course, there would never have been an opportunity for inspection. Be that as it may, but it is an unerasable fact that the UFU’s counsel had inspected the documents. The unusual advantage this afforded us was that, at least in general terms, the UFU was able to make submissions on the forensic relevance of the documents sought. This is also a matter mitigating against any need for us to inspect the documents. [29] At least for the “costing” documents produced in response to the production order (and now subject to the PII claim), the UFU submission is that they show the “robustness” of the figures in the document already in evidence and, even if the figures vary from document to document to some degree, they show that FRV was doing a lot of analysis to arrive at what were relevant savings. The UFU ultimately submits these efficiencies could be then used to fund the increases sought by the UFU. The UFU submits the Full Bench could have particular confidence that there are real savings and efficiencies available which can be used to fund the increase in wages and allowances for which the UFU contends, or at least some of them. [30] Contextually, the UFU evidence already contains a document, prepared by FRV, containing estimates of various “efficiency” assumptions FRV has made.18 We understand the UFU’s position is that the document shows various efficiencies, totalling as high as $117 million, based upon various bargaining outcomes. As for the question of efficiencies, the UFU contended in submissions in support of the original production order that the bottom line will be if there were no documents produced in relation to efficiencies, the only evidence before the Full Bench was that efficiencies would be in the order of $117m.19 [31] We are not satisfied that the forensic utility described, acknowledging it was presented in high-level terms to avoid disclosing the specific contents of the documents, is such as to warrant the disclosure of documents properly within a recognised category of public interest immunity, albeit not in a category warranting the strongest protection. The Minister’s claim for PII over the “costings” documents is upheld. [2025] FWCFB 232 7 [32] The residual document20 sought was of a different nature, and it was a draft version of submissions intended for a sub-committee of Cabinet. Noting our views on inspection, we are not satisfied of any sufficiently compelling forensic significance to this document such that it ought be disclosed either. [33] While we have made our assessments on the public interest immunity claims, above, the ultimate issue is also whether we should vary or set aside the part of our earlier order made under section 590 of the FW Act. That, in turn, requires us to remain satisfied that the documents sought are ones appropriate to produce. Now having further information about the documents, we are not satisfied that the documents sought have sufficient forensic utility, such that it is appropriate to insist upon their production. Many are simply drafts or versions of documents about a matter that the UFU is already capable of making (and has made) submissions about. In the context of our conclusions regarding public interest immunity, it is also not appropriate to make a further order for production. [34] Timing is also a relevant factor. The documents sought are of a kind that the UFU has had a very long time to consider an application for. The judicial caution that no such order for production of documents over the objection of a public interest immunity claim should be enforced until the government concerned has had an opportunity to appeal against it, or test its correctness by some other process, is a matter capable of informing a decision under section 590 of the FW Act. We consider it relevant here. While we acknowledge the real efforts of the parties to review and confine the various production order requests, the relative lateness of the UFU’s application on 25 August 2025 has meant that a substantial document production request that could, and in our view should, have been made earlier is being dealt with on the run throughout the substantive hearing of the matter. The issue of public interest immunity claims was foreseeable. This should not be construed as a nod to a party making a public interest immunity objection to production to stymie legitimate requests for the production of documents but this is not the case here. The Minister’s objections are plainly properly made and were foreshadowed at the earliest opportunity. Putting aside our conclusions about the public interest immunity claims, we would refuse production on this basis. Legal professional privilege claims [35] The claims for legal professional privilege are more confined. By written submissions filed on 5 October 2025 the UFU presses for inspection of the following three documents: • Document FRV.50001.0001.5226 dated 4 November 2022. • Document FRV.5001.0001.5430 dated 8 November 2022. • Document FRV.5001.0001.5331 dated 22 November 2022. [36] FRV claims that each of the three documents are protected by what is commonly called the ‘litigation privilege’ or, more formally, they are confidential communications passing between a client, the client’s legal adviser and third parties for the dominant purpose of use in or in relation to litigation which is either pending or in contemplation: see AWB v Cole at [144]. [37] Before addressing the specifics of that, some contextual material is necessary. “Formal” bargaining between the FRV and the UFU for a new enterprise agreement commenced on 26 April 2022. This followed a period of about two years of prior discussions. One of the early [2025] FWCFB 232 8 issues in bargaining was a claim for wage or allowance increases based on the perceived value of efficiency improvements. Part of the bargaining team for FRV was Mr Peter Parkinson. Mr Parkinson was not an employee of FRV or a lawyer, he was an industrial relations consultant. [38] On 15 August 2022, the UFU filed a Form F10 with the Commission in relation to a claim for a fire services efficiency allowance. The Form F10 ultimately allows a party (in this case the UFU) to invoke the Commission’s arbitral powers to resolve the dispute. It was this proceeding that forms the basis for FRV’s ‘litigation privilege’ claims for the three documents in dispute. There is no apparent issue that documents brought into existence for the dominant purpose of use in or in relation to the efficiencies dispute is covered by the litigation privilege. [39] One such document was brought into existence by FRV on 14 October 2022, which is an early iteration of the three documents in question.21 We understand that the document on 14 October 2022 is accepted as properly subject to a claim of litigation privilege. [40] On 22 October 2022, the UFU made a further application to the Commission. This application was made under section 240 of the FW Act, which is titled “Application for the FWC to deal with a bargaining dispute”. The powers under section 240 of the FW Act do not extend to arbitral determinations, unless the parties in question have agreed that the Commission can arbitrate the dispute. There was never any agreement for the Commission to arbitrate the dispute. [41] The three documents in question are, we understand, variants of an earlier privileged document. They are each marked as being subject to professional legal privilege. [42] There was no dispute about the applicable principles. The decision to bring a document into existence must be for the “dominant” purpose for use in or in relation to litigation which is either pending or in contemplation. If there are mixed purposes of equal weighting (e.g. some for use in litigation and others for different uses), there is not a dominant purpose of the kind required. A decision to bring the document into existence “irrespective” of any intention to obtain professional legal services makes a “dominant” purpose for litigation purposes doubtful.22 Ascertaining the purpose is a question of fact,23 with that onus ultimately resting with the person asserting the privilege. As with the public interest immunity claims, the UFU does not invoke any issue of waiver. Document 5226 [43] Document 5226 is a nineteen-page table. It is clearly marked ‘Private and Confidential’ and ‘Subject to Professional Legal Privilege’. It is headed as a draft and is called “F10 Efficiency Allowance/Bargaining dispute”. Those features are suggestive of a valid claim for litigation privilege, where the litigation in question was the dispute commenced on 22 August 2022. However, the difficulty with that conclusion is that Document 5226 was attached to an email (Document FRV. 50001.0001.5225, not itself the subject of a claim for privilege) sent on 4 November 2022 by Mr Peter Parkinson. The email is titled “Re: Efficiency Allownace” (sic). [44] Mr Parkinson’s email was to various persons within FRV. It is part of an email chain beginning on 31 October 2022, from an individual within FRV to Mr Parkinson with various “updated numbers”. The second part of the email chain indicates that Mr Parkinson was seeking [2025] FWCFB 232 9 to have the various updated numbers incorporated into a schedule document. The final part of the email chain has Mr Parkinson asking “Have we been able to finalise the Efficiency Table and update the DTF Schedule accordingly? How is the Source of Truth doc progressing? - each of these 3 docs will be important to have finalised and available for the anticipated s240 Conference, Thanks, Peter” (emphasis added). Document 5226, which Mr Parkinson attached, appears to be one of the outcomes of the amendments for the “updated numbers” being sought by Mr Parkinson. [45] On the evidence before us, Document 5226 was created for a purpose of a section 240 conference. The purpose of creating the document resides, as far as we can discern, with Mr Parkinson. Mr Parkinson was not a lawyer and was not purporting to give legal advice but was engaged by FRV for industrial relations advice generally. We do note that the solicitor’s affidavit filed asserts that Document 5226 was prepared for the purposes of litigation, although that evidence appears to be on information and belief, as opposed to the direct knowledge or purpose of that solicitor. We do not consider that a conference under section 240 is, itself, a litigation proceeding. We acknowledge that a dispute under section 240 may lead to arbitration (which would be a dispute of a kind capable of attracting litigation privilege) but that event is rare. There is no evidence to suggest that was in Mr Parkinson’s contemplation. [46] The best that can be said of Document 5226 is that there was a dual purpose, with one purpose residing with the extant litigation dispute commenced with the Form F10 application and the other for the bargaining dispute under section 240. We are not satisfied the dominant purpose was for use in or in relation to litigation which is either pending or in contemplation. Document 5430 [47] Document 5430 is a later version of Document 5226. Document 5430 was attached to an email (Document FRV.5001.0001.5429) from Mr Parkinson dated 8 November 2022. Document 5429 is a continuation of the earlier email chain from Document 5225. Part of the email chain includes Mr Parkinson stating the document versions being circulated “will inform our approach to the s240 [dispute]”. Document 5430 is a version of Document 5226 marked up by Mr Parkinson with “some cosmetic changes” (according to his cover email). Among other matters, those mark ups include a change to the title so as to omit any reference to the F10 dispute application and to simply refer to “FRV Efficiencies ‘Allowance/Bargaining’ dispute”. [48] Much of the contextual material we described earlier is equally relevant for Document 5430. It is unnecessary to repeat it but we consider that the case for Document 5430 being subject to litigation privilege is even weaker than was the case for Document 5226. While the document remains labelled “Subject to Professional Legal Privilege”, we do not consider that reflects the reality of the position. [2025] FWCFB 232 10 Document 5331 [49] Document 5331 is a standalone document, in the sense that there is no cover email attaching it that we are aware of. It is a variant of Documents 5226 and 5430, but is dated 22 November 2022. Perhaps more specifically, it is a variant of Mr Parkinson’s tracked change Document 5430 sent on 8 November 2022 but with those tracked changes having been accepted. It is possible that there are other differences (aside from the date and addition of a ‘version’ number), although we have not inspected the document at that level of forensic detail and no relevant differences were drawn to our attention. The best evidence before us is that this is a ‘clean’ version of Mr Parkinson’s document from 8 November 2022 and created for the same purpose(s). As we were not satisfied that Document 5430 was created for the dominant purpose for use in or in relation to litigation which is either pending or in contemplation, we are not satisfied that Document 5331 is subject to litigation privilege. [50] For completeness, we note FRV independently relies on the fact that the three documents reveal its industrial bargaining strategy as a basis for resisting production, a matter it raised as part of its initial objections to the production order.24 We understand this is a reference to cases such as that decided by Munro J in Re Clerks' (Alcoa of Australia - Other Than Mining and Refining) Consolidated Award 1985 [1988] AIRC 391 where his Honour referred to a “practice” recognising that “participants in industrial relations will be sheltered from compulsory production of information categorised as internal to their deliberations in industrial relations matters.” As the Full Bench in Clermont Coal Operations Pty Ltd v Brown & ors [2015] FWCFB 2460 observed, while the approach by the Commission requiring the production of such documents is “cautious”, it is not a privilege. Generally, the documents are unlikely to be required because they are insufficiently relevant. In the present case, these three documents have been the subject of previous debate arriving at the (narrowed) scope of documents reflected in the order made on 23 September 2025. But for the realisation that the documents produced by FRV pursuant to that order contained documents subject to LPP claims and PII claims, we consider the other bases for resisting production have been dealt with and would not have been raised again. We do not propose to do so now. Disposition [51] It is appropriate to regularise the existing orders in place to governing the production of documents to give effect to our reasons above, namely that the three documents the subject of the litigation privilege claim are to be produced and that the documents subject to the PII claim are not to be produced. The parties are requested to confer and provide a proposed minute of order to that effect. DEPUTY PRESIDENT Appearances: [2025] FWCFB 232 11 C. Tran of Counsel for United Firefighters’ Union of Australia. M. Felman Kings Counsel with M. Lange of Counsel for Fire Rescue Victoria. C. O’Grady Kings Counsel with F. Leoncio of Counsel for the Minister. Hearing details: 2025. Melbourne: October 6. Printed by authority of the Commonwealth Government Printer <PR792761> 1 United Firefighters’ Union of Australia v Fire Rescue Victoria [2023] FWCFB 180; United Firefighters’ Union of Australia v Fire Rescue Victoria [2024] FWCFB 43. 2 For reasons not necessary to address in this Decision, the Full Bench was comprised only of Deputy President Bell and Commissioner Allison. No objection was taken to this arrangement. 3 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 (Daniels Corporation) at [9] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 4 AWB v Cole at [59]. 5 AWB v Cole at [34]. 6 Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 149 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ); see also Coles Supply Chain Pty Ltd v Milford and Another (2020) 279 FCR 591 at [79]. 7 Sankey v Whitlam at 43 (Gibbs ACJ); see also Spencer v Commonwealth (2012) 206 FCR 309 at [30], citing that proposition with apparent approval; and R v Bernard Collaery (No 9) [2020] ACTSC 291 (Mossop J) at [10] 8 Commonwealth v Northern Land Council (1993) 176 CLR 604 at 616 (Mason CJ, Brennan, Gaudon, Deane, Dawson). 9 Sankey v Whitlam at 39. 10 Sankey v Whitlam at 43; ACCC v NSW Ports No 3 at [56]. 11 Commonwealth v Northern Land Council (1993) 176 CLR 604 at 618. 12 Spencer v Commonwealth (2012) 206 FCR 309 at [32]. 13 Ibid, citing New South Wales v Ryan (1998) 101 LGERA 246. 14 Transcript PN2791. 15 FRV.50001.0001.5632. 16 FRV.50001.00001.5241. 17 FRV.50001.00001.6153. 18 Court Book pp.5510 – 5514. 19 Eg, Transcript PN450. 20 FRV.50001.0001.4442. 21 Transcript PN2875. 22 Sparnon v Apand Pty Ltd (1996) 68 FCR 322 at 328 (Branson J). 23 Ibid. 24 Transcript PN218.