AAPT CDMA Pty Ltd v Logan City Council

[2001] QPEC 20

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	AAPT CDMA Pty Ltd v. Logan City Council [2001] QPE 020
PARTIES:	AAPT CDMA PTY LTD Appellant And LOGAN CITY COUNCIL Respondent
FILE NO/S:	Appeal No. 4539 and 5056 of 2000
DIVISION:	Planning and Environment Court
PROCEEDING:
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	20 March 2001
DELIVERED AT:	Southport
HEARING DATE:	14 March 2001
JUDGE:	Judge Quirk
ORDER:	The ruling sought by the appellant must be refused
CATCHWORDS:	Telstra Corporation Limited v. Pine Rivers Shire Council & Ors. 231/99, 9 March 2001; Uniform Civil Procedure Rules; Planning and Environment Court Rules; Interchase Corporation Limited (in Liq) v Grosvenor Hill (Queensland) Pty Ltd 1999 1 QDR 141; Baker v Campbell 1983 153 CLR 52 at 122); .
COUNSEL:	Mr W. Cochrane for the appellant Mr R Litster for the respondent
SOLICITORS:	Phillips Fox for the appellant Corrs Chambers Westgarth for the respondent

1. This rather unusual matter involves a dispute about disclosure of certain material by

   the respondent. The appeal itself is against the imposition of a condition upon the

   respondent’s approval of an application for a development permit for a “Utility

Installation – Telecommunications Facility – High Impact”.
The disputed condition is as follows:

“10.5 The applicant shall indemnify the council against any claims arising whatsoever as a result of the operation of the facility, including any claims covering detrimental effects of Electromagnetic Radiation emanating from the facility”.

1. The unusual feature of the case is that both parties have approached Dr David

   Black, a recognised expert in the field of environmental medicine and in particular,

   electromagnetic radiation. Dr Black’s evidence on the question of the risk of this

   form of radiation from mobile telephone towers was viewed favourably by His

   Honour Judge Newton in his recent decision of Telstra Corporation Limited v Pine

   Rivers Shire Council & Ors. 231/99, 9 March 2001.

2. As appears in his affidavit (filed 8 March 2001), in his discussions with Dr Black,

   the appellant’s solicitor, Mr Marshall, learned that Dr Black had responded to some

   questions put to him by the council’s solicitors, requested that disclosure of these

   written responses be made, but the request has not been complied with.

3. On 5 February in a further conversation with Dr Black, Mr Marshall learned that

   the doctor had been advised by the council’s solicitors that, “They did not think that

   they would be retaining him in the matter”. When asked to provide a copy of his

   correspondence with the council’s solicitor, Dr Black was disinclined to do so, “as a

   matter of professional courtesy”.

4. The question which I must decide is whether the communication between the

   council’s solicitors and Dr Black should be disclosed. Before me legal professional

   privilege was claimed by the respondent in respect of that document. In an

   affidavit, Mr McDonald, the council’s solicitors, stated:

   “Communications between this firm and Dr Black have been affected so as to permit this firm to provide advice to the respondent and to brief counsel to provide advice as to the conduct of this appeal.”

5. The appellant, in seeking an order for disclosure, relied on rule 212 of chapter 7 of

   the Uniform Civil Procedure Rules which, it is said, is picked up by rule 3 of the

   Planning and Environment Court Rules, particularly sub-rule (2) which provides:

   “If these rules do not provide for a matter in relation to a proceeding, or proceedings in Planning and Environment Court and the rules applying in the District Court, would provide for the matter in relation to a proceeding, or proceedings, in the District Court, the rules applying in the District Court apply for the matter in the Planning and Environment Court with necessary changes”.

6. The respondent argued that rule 212 has no application in this case in that it is not

   the position that the Planning and Environment Court rules do not provide for the

   matter in question in these proceedings, namely whether the correspondence in

   dispute is subject to disclosure.

7. In the Planning and Environment Court rules, the matter of disclosure is referred to

   twice. The first reference is found in rule 16 which provides for “Optional early

   settlement procedure”. Sub-rule (5) provides:

   “Within 10 days after the list of issues is served on an active party,

   the party (the “disclosing party”) must –

(a)	Give each other active party the disclosing party’s document list; or
(b)	Otherwise comply with the disclosing party’s duty of disclosure under the rules applying in the District Court as if the proceedings were a proceeding in the District Court”.

The second reference is found in rule 20 which provides:

“20. (1) At any time after an entry of hearing is filed in a proceeding, any party may apply to the court for an order or direction about the proceeding.

(2) Without limiting sub-rule (1) the application may be for one or more of

the following-

… …

(d)	an order about the conduct of the proceeding, including an order about one or more of the following-
… …
(iii) Disclosure by inspection of documents or delivery of interrogatories;

… … ”.

1. There is nothing in the Planning and Environment Court rules that involves an

   identification of the duty of disclosure comparable to that found in chapter 7 of the

   Uniform Civil Procedure Rules and having regard to rule 16(5)(b), I am unable to

   escape the conclusion that the duty in question is the duty outlined in chapter 7.

   The question that therefore arises is whether the correspondence in dispute is

   required to be disclosed having regard to the provisions of chapter 7, particularly

   rule 212.

2. As indicated, the material before me indicates no more than the document in

   question involves responses by Dr Black to certain preliminary questions put to him

   by the appellant’s solicitors. As also indicated, the claim of privilege is founded on

   the assertion appearing in Mr McDonald’s affidavit.

3. Rule 212 provides:

   “DOCUMENTS TO WHICH DISCLOSURE DOES NOT

   APPLY

(1)

The duty of disclosure does not apply to the following
documents-

(a)	A document in relation to which there is a valid claim to privilege from disclosure;
(b)	A document relevant only to credit;
(c)	An additional copy of a document already disclosed, if it is reasonable to suppose the additional copy contains no change, obliteration or other mark or feature likely to affect the outcome of the proceeding.

(2)

A document consisting of a statement or report of an expert
is not privileged from disclosure”.

1. Some assistance in deciding this particular matter is gained from the decision of the

   Court of Appeal Interchase Corporation Limited (in Liq) v Grosvenor Hill

   (Queensland) Pty Ltd 1999 1 QDR 141. The Court was there considering the

   application of order 35 rule 5(2) of the rules of the Supreme Court which provided:

   “A document consisting of a statement or a report of an expert is not
   privileged from disclosure”.

2. As can be seen from the decision, the Court was there dealing with a number of

   categories of documents which related to a valuation carried out by an expert

   valuer. The general law relating to legal professional privilege and the inroads

   made upon such privilege by that particular rule were examined.

3. There was no question that the valuation itself was subject to disclosure. The Court

   considered that material in the possession of the valuer or prepared by him for the

   purpose of completing his report, was not subject to privilege, even though it could

   not be said to be a “statement or report of an expert”. It was emphasised that:

   “Legal professional privilege attaches only to communications made for the purpose of giving or receiving advice or for use in existing or anticipated litigation”. (Baker v Campbell 1983 153 CLR 52 at 122).

4. However, in respect of a category of documents described as

   “Letters facsimiles and enclosures passing between (the plaintiff’s

   solicitors) and (the valuer) regarding (the valuation)”

   the Court was not prepared to force disclosure.

   Pincus J A, said, at page 156:

   “It was argued on behalf of the appellant that by reason of the operation of order 35 rule 5(2), if valid, documents other than the valuation report itself would be deprived of the protection of privilege. This was said to be so, as I understood the argument, by necessary implication.

   Unless the letter of instruction, and probably, gave the valuer some confidential instruction as to the desired content of the report it is difficult to understand what in the letter of instruction could be really confidential. Common sense may be thought to favour the appellant’s suggestion that the requirement that the valuation report be disclosed necessarily opens the way to disclose of such documents as the letter of instruction in response to which it was given. On the other hand it would have been simple enough for those who made the rule to draw order 35 rule 5(2) more broadly so as to require disclosure of categories of documents other than those expressly mentioned – ‘a statement or report of an expert’. It does not appear to me that the implication put forward by the appellant can be said to be necessary and I therefore reject that argument.”

   Thomas J, after observing (at page 162) that:

   “When an expert is engaged by a solicitor for the purpose of giving evidence in a case, documents generated by the expert and information recorded in one form or another by the expert in the course of forming an opinion are not a proper subject for a claim of legal professional privilege”.

   went on to note:

   “Privilege may however be claimed in relation to communications between the expert and the solicitor (both ways) when such communication is made for the purpose of confidential use in the litigation.”.

5. On the material before me it could not be said that the document in question is a

   “statement or report of an expert”. Dr Black has not been retained by the council to

   provide any such thing at this point in time. On the other hand, the document does

   appear to be a “communication made for the purpose of giving or receiving advice

   or for use in existing or anticipated litigation” and one to which the general law in

   respect of legal professional privilege extends protection.

6. The document would appear to fall within rule 212(1)(a) and is not subject to the

   duty of disclosure. Accordingly the ruling sought by the appellant must be refused.