Australian Lifestyle Corporation Pty Ltd v Wingecarribee Shire Council (No.1)

[2008] NSWLEC 131

Land and Environment Court

of New South Wales

CITATION:

Australian Lifestyle Corporation Pty Ltd v Wingecarribee Shire Council (No.1) [2008] NSWLEC 131

PARTIES:

APPLICANT
Australian Lifestyle Corporation Pty Ltd
RESPONDENT
Wingecarribee Shire Council

FILE NUMBER(S):

11163 of 2007

CORAM:

Sheahan J

KEY ISSUES:

Practice and Procedure :- Notice to Produce - whether document relevant to the issue at hand; whether protection afforded by legal professional privilege; fairness

LEGISLATION CITED:

Evidence Act 1995, s.118

CASES CITED:

Jacobson & Anor v Ballina Shire Council (2006) 146 LGERA 1
MultiStar Pty Ltd v Minister for Urban Affairs & Planning & Anor [2000] NSWLEC 231
Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2007] NSWLEC 182

DATES OF HEARING:

1 April 2008

 
DATE OF JUDGMENT: 

2 April 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Galasso SC
SOLICITORS
Malleson Stephen Jaques

RESPONDENT
Mr M Craig QC
SOLICITORS
B. Bilinsky & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

2 April 2008

11163 of 2007 Australian Lifestyle Corporation Pty Ltd v Wingecarribee Shire Council (No.1)

JUDGMENT

1 His Honour: At the conclusion of yesterday’s proceedings Mr Galasso SC, for the Applicant, called on par 1(d) of a Notice to Produce dated 20 March 2008.

2 In response to the call, Mr Craig QC, for the Respondent, produced to the Court the relevant memorandum of Counsel’s advice dated 28 June 2007, but submitted it was (1) not relevant to the issues at hand, and (2) entitled to the protection afforded by legal professional privilege (s.118 of the Evidence Act 1995).

3 The advice was prepared for the Council’s solicitors by Mr Chris McEwen SC, and reviewed, in the light of the Chief Judge’s decision in Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2007] NSWLEC 182 (delivered on 3 April 2007), an earlier advice he had given to the Council on the permissibility of the current application.

4 The conclusion reached by Mr McEwen is quoted verbatim in the report of Mr Scott Lee, Council’s Director, Environment and Planning dated 18 February 2008 (mentioned in the Notice to Produce, and available to the Court in Exhibit C1 , at tab 2, folio 26). It was earlier paraphrased or summarised, very clearly, by Mr Lee in an email he sent to the Applicant on 5 July 2007 (see Annexure ‘B’ to Mr David O’Donnell’s affidavit in these proceedings, sworn 12 December 2007).

5 The former of those “disclosures” is a public document of Council, and the latter is not stated to be either confidential or “without prejudice” as between the parties.

6 Minds will differ on the utility (if any) to either party, or to the Court, of the remainder of the contents of the advising, in considering the legal question posed in this case regarding permissibility of the subject development, and it can well be argued that Mr McEwen’s opinion and his reasoning are not “relevant” to the making of the Court’s decision on that legal question.

7 The more important questions on the call, however, are (1) whether it is a privileged document, and (2) whether it is fair for one party to see it in its entirety and not the other.

8 The undisclosed contents of the advice serve to explain its disclosed conclusion – a conclusion which, I might add, Mr McEwen acknowledged “in terms” remains contestable in any event – and the Applicant appears to have provided to the Council its pre-June 2007 legal advice on exactly that same legal question, as part of an exchange of legal opinions.

9 I think considerations of fairness indicate that the advising of 28 June 2007 should be produced to the Applicant.

10 So far as the question of legal professional privilege is concerned, I rely on the judgments of Lloyd J in MultiStar Pty Ltd v Minister for Urban Affairs & Planning & Anor [2000] NSWLEC 231, and of Jagot J in Jacobson & Anor v Ballina Shire Council (2006) 146 LGERA 1, and on the authorities to which their Honours refer, to arrive at the conclusion that any legal professional privilege attaching to the advising of Mr McEwen in this matter has been waived by virtue of its disclosure in the Council report and the email.

11 I should add that Jagot J’s comments (in Jacobson at 9, in par 34) on the question of fairness also fortify my already expressed view on that aspect of the dispute about the Notice to Produce.

12 I order the Respondent to produce to the Applicant the written advice provided to Council’s solicitors by Mr Chris McEwen SC, dated 28 June 2007.