Bailey v Director-General, Department of Land and Water Conservation

The appeal concerned a dispute between Bailey and the Director-General, Department of Land and Water Conservation, regarding the discoverability of certain documents. The primary judge had been asked to determine whether these documents were protected by client legal privilege. The appeal to the Court of Appeal concerned the admissibility of affidavits and the admission of fresh evidence, as well as the primary judge's entitlement to inspect the documents to determine the privilege claim.

The central legal issues before the Court of Appeal were whether the primary judge had erred in their assessment of client legal privilege, particularly in relation to the identification of the "client" for the purposes of s 119 of the *Evidence Act 1995* (NSW) and whether in-house lawyers of the Department had provided professional legal services. Further issues included whether privilege had been waived, either expressly or impliedly, through disclosure of parts of documents or by an objection to answering an interrogatory at a later stage. The court also considered whether the prosecutorial duty of disclosure could prevent privilege from attaching and whether the general rule that costs follow the event should be departed from.

The Court of Appeal, in dismissing the appeal, affirmed the primary judge's findings. The court reasoned that the primary judge was entitled to inspect the documents to determine the applicability of privilege under both the *Evidence Act* and common law. The court found that the identification of the "client" and the nature of the services provided by in-house lawyers were correctly assessed. Furthermore, the court held that no waiver of privilege had occurred, and that the prosecutorial duty of disclosure did not override the claim for privilege in this instance. The court also found no error in the admission of affidavits where deponents were not cross-examined, nor in the refusal to admit fresh evidence.

Consequently, leave to appeal was granted, but the appeal itself was dismissed. The appellants were ordered to pay the respondents' costs of the summons for leave to appeal and of the appeal.