Ashfield Municipal Council v RTA - [2004] NSWSC 917

CITATION: Ashfield Municipal Council v RTA [2004] NSWSC 917

HEARING DATE(S): 01/10/04

JUDGMENT DATE:
6 October 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Barrett J

DECISION: Order for discovery

CATCHWORDS: PROCEDURE - discovery - legal professional privilege - conclusion stated in counsel's opinion quoted in client's letter to opposing party - whether privilege waived - whether production of opinion will serve legitimate forensic purpose

LEGISLATION CITED: Roads Act 1993, s.138

CASES CITED: Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Attorney-General of the Northern Territory v Maurice (1986) 161 CLR 475
Australian Unity Health Ltd v Private Health Insurance Administration [1999] FCA 1770
Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237
Fort Dodge Australia Pty Ltd v Nature Vet Pty Ltd [2002] FCA 501
Garratt's Ltd v Thanga Thangathurai [2002] NSWSC 39
Mann v Carnell (1999) 201 CLR 1
Perpetual Trustees (WA) Ltd v Equuscorp Pty Ltd [1999] FCA 925
Singapore Airlines Ltd v Sydney Airports Corporation Ltd [2004] NSWSC 380
Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152

PARTIES :
Ashfield Municipal Council - Plaintiff
Roads and Traffic Authority of NSW - First Defendant
Connell Wagner - Second efendant

FILE NUMBER(S): SC 5287/04

COUNSEL: Mr J Lazarus - Plaintiff
Mr J B Simpkins SC/Mr R P L Lancaster - Defendant

SOLICITORS: Pike Pike & Fenwick - Plaintiff
Deacons - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

WEDNESDAY, 6 OCTOBER 2004

5287/04 – ASHFIELD MUNICIPAL COUNCIL v ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES & ANOR

JUDGMENT

1 These proceedings were commenced by summons filed on 28 September 2004 and have been fixed for hearing by Palmer J on 13 and 14 October 2004. By its summons, the plaintiff, a local government authority (which I shall call “the Council”), seeks a declaration that certain activities that the defendants (the Roads and Traffic Authority, or “RTA”, and Connell Wagner, a firm of consulting engineers retained by the RTA) propose to conduct upon land in the Municipality of Ashfield will contravene s.138 of the Roads Act 1993 unless the consent of the Council is first obtained. There is also a claim to related injunctive relief. By a cross claim filed on 1 October 2004, the RTA claims an order that the Council determine any application made by the RTA under s.138 of the Roads Act with respect to the proposed activities of the RTA and a declaration as to matters relevant to determination of such an application.

2 The activities in question involve geotechnical investigation with a view to assessing the suitability of certain sites within the Municipality of Ashfield for subterranean development by way of extension of the M4 East tunnel for motor traffic.

3 The court noted on 28 September 2004 the agreement of the parties on a procedure for informal production of documents without any order for discovery. An aspect…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWSC 917
Decision Date: 6 October 2004

CaseChat Overview and Summary

The case of Ashfield Municipal Council versus the Roads and Traffic Authority was before the court, which was asked to determine the extent to which legal professional privilege applied to a document in question. The Municipal Council was involved in a dispute with the Authority and sought the discovery of certain documents held by the Authority. One of these documents was an opinion of counsel contained in a letter from a client to the opposing party, which the Authority claimed was protected by legal professional privilege.

The primary legal issue before the court was whether the privilege had been waived by the client's disclosure of the opinion in the letter to the opposing party. Additionally, the court had to consider whether the production of the opinion would serve a legitimate forensic purpose. The Municipal Council argued that the privilege had been waived, and that the opinion was relevant and necessary for the fair determination of the proceedings. The Authority, on the other hand, maintained that the privilege had not been waived and that the opinion should not be produced as it would not serve a legitimate forensic purpose.

The court found that the privilege had not been waived by the disclosure of the opinion in the letter to the opposing party. The court noted that the opinion was not prepared for the sole purpose of litigation and that the letter was not written in a formal legal context. The court also held that the opinion was not relevant to the issues in the proceedings and that its production would not serve a legitimate forensic purpose. Accordingly, the court ruled that the privilege applied to the opinion and that it should not be produced.

The final orders of the court were that the opinion of counsel contained in the letter from the client to the opposing party was protected by legal professional privilege and that it should not be produced as part of the discovery process. The court's decision highlights the importance of maintaining the confidentiality of legal advice and the limited circumstances in which legal professional privilege may be waived.

Orders