Burns v Regional Growth NSW Development Corporation; Evans v Regional Growth NSW Development Corporation

[2024] NSWLEC 73

Land and Environment Court

New South Wales

Medium Neutral Citation:

Burns v Regional Growth NSW Development Corporation; Evans v Regional Growth NSW Development Corporation [2024] NSWLEC 73

Hearing dates:

18 July 2024

Date of orders:

18 July 2024

Decision date:

18 July 2024

Jurisdiction:

Class 3

Before:

Pain J

Decision:

The Court orders in proceeding no. 2023/91191:

(1) General access granted to subpoena packet s-14.

The Court orders in proceeding no. 2023/219461:

(1) General access granted for subpoena packet s-13.

Catchwords:

CIVIL PROCEDURE — subpoena — objection to production of documents on basis of legal professional privilege – onus of proof of legal professional privilege on party claiming it – claim for legal professional privilege dismissed

Legislation Cited:

Evidence Act1995 (NSW), ss 118, 119, 131A, 133

Civil Procedure Act 2005 (NSW), s 56

Uniform Civil Procedure Rules 2005 (NSW), r 1.9

Cases Cited:

Hancock v Rinehart [2016] NSWSC 12

Rinehart v Rinehart [2016] NSWCA 58

Category:

Procedural rulings

Parties:

Craig William Burns (First Applicant, 2023/91191)
Gail Frances Burns (Second Applicant, 2023/91191)
Amanda Wendy Evans (First Applicant, 2023/219461)
Trudie Anne Gilbert (Second Applicant, 2023/219461)
Regional Growth NSW Development Corporation (Respondent)
Department of Planning, Housing and Infrastructure (Subpoenaed Party)

Representation:

Counsel:
P W Larkin SC with S Ross (Applicants)
R Cox (Solicitor Advocate, Respondent)
Ibrahim (Solicitor Advocate, Subpoenaed Party)

Solicitors:
Hones Lawyers Pty Ltd (Applicants)
Norton Rose Fulbright Australia (Respondent)
Department of Planning, Housing and Infrastructure (Subpoenaed Party)

File Number(s):

2023/91191, 2023/219461

EX TEMPORE JUDGMENT

1. The Applicants in these two Class 3 compulsory acquisition matters have issued subpoenas to produce documents to a third party, the Department of Planning and Environment (now the Department of Planning, Housing and Infrastructure) (DPE). In the course of obtaining general access orders by the Applicants, documents have been produced to the Court and legal professional privilege is claimed over two categories of documents by DPE. I am told the two categories largely overlap and consist of two pages of emails.

2. The affidavit of Ms Carrington solicitor for the Applicants dated 16 July 2024 was read in part by the Applicants, principally to enable correspondence between the respective solicitors to be adduced in evidence. DPE was asked to provide an affidavit supporting its claim but declined on more than one occasion. It relied on a table sent to the Applicants’ solicitor at folio 61 of the exhibit to Ms Carrington’s affidavit which sets out the persons who sent the emails described as a principal legal officer and the recipient a departmental officer in DPE. The last column describes in broad terms the contents of the email chain in relation to which privilege is claimed.

3. DPE accepts that it bears the onus of establishing that legal professional privilege attaches to that material.

4. The Court is determining the claim for legal professional privilege pursuant to s 118 (in Div 1) as provided by s 131A of the Evidence Act1995 (NSW), under which objections to the imposition of the obligation to produce documents in Div 1 must be determined. The documents have been produced to the Court. DPE submits that no affidavit to support the claim of privilege made pursuant to s 118 is necessary as no such requirement is stated in the Evidence Act (as is indeed the case) and relied on the contents of the table in folio 61 as being sufficient to establish legal professional privilege. It also invited the Court to inspect the short document over which legal professional privilege is claimed, as provided by s 133 of the Evidence Act in the exercise of the Court’s discretion and in the interests of efficiency as provided in s 56 of the Civil Procedure Act 2005 (NSW) (CP Act). It sought to distinguish Hancock v Rinehart [2016] NSWSC 12 a decision of Brereton J relied on by the Applicants because that considered s 119 of the Evidence Act and r 1.9 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

5. The Applicants oppose the Court inspecting the documents over which legal professional privilege is claimed as the evidentiary basis for making the legal professional privilege has not first been established as is necessary, relying on Hancock v Rinehart at first instance before Brereton J and on appeal, Rinehart v Rinehart [2016] NSWCA 58. The Court of Appeal in Rinehart v Rinehart upheld Brereton J’s approach at [30]-[38] inter alia. In these circumstances the Court should decline to inspect the documents.

6. I agree with the Applicants’ submission that DPE has not provided any evidence which enables its claim for legal professional privilege to be substantiated and tested. I do not consider the fact that Rinehart v Hancock considered s 119 of the Evidence Act and r 1.9 of the UCPR is a relevant basis to distinguish the principles identified in that case from applying to the claim for legal professional privilege made under s 118, and in asking the Court to inspect the document under s 133. As Brereton J identified at [7] a claim for legal professional privilege must be supported by admissible direct evidence and none has been provided. Email correspondence between solicitors is insufficient and cannot be tested in the usual course by cross-examination (one of the ways of testing identified by Brereton J at [7]). As well as being unsworn and essentially hearsay the material sought to be relied on is unsatisfactory in the same way as the schedule attached to a solicitor’s affidavit was found to be unsatisfactory by Brereton J at [10]. The content of the emails over which legal professional privilege is claimed is broadly asserted with no basis underpinning the claim provided. That the email exchange is between solicitors is irrelevant to establishing a proper basis for legal professional privilege which can be tested.

7. In these circumstances I decline to exercise the discretion provided under s 133 of the Evidence Act to inspect the documents over which legal professional privilege is claimed, an approach consistent with the findings and approach of Brereton J in Hancock v Rinehart and the Court of Appeal in Rinehart v Rinehart as referred to by the Applicants.

8. Reliance on the just, quick and cheap principles of s 56 of the CP Act is inappropriate as a means of overcoming the requirement to provide evidence that can be tested to establish a claim of legal professional privilege. Essentially relying on the presiding judge to exercise their discretion to inspect the documents in issue is not an appropriate approach to establishing legal professional privilege.

9. Consequently DPE is not able to discharge its onus of establishing the legal professional privilege claim. General access to the documents in question should be granted in relation to subpoena packet s-14 in Burns, and subpoena packet s-13 in Evans.

Orders

10. The Court orders in proceeding no. 2023/91191:

1. General access granted to subpoena packet s-14.

11. The Court orders in proceeding no. 2023/219461:

1. General access granted for subpoena packet s-13.

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Decision last updated: 22 July 2024