Charlton v Moore - [2009] NSWLEC 25

Land and Environment Court

of New South Wales

CITATION: Charlton v Moore [2009] NSWLEC 25
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT:
Belinda Lee Charlton
FIRST RESPONDENT
Susan Rosalie Moore
SECOND RESPONDENT:
Alison Gay Howlett
THIRD RESPONDENT:
Singleton Council

FILE NUMBER(S): 40130 of 2009

CORAM: Biscoe J

KEY ISSUES: EVIDENCE :- Legal professional privilege - whether solicitors' letter attracted legal advice privilege insofar as it went beyond formal advice as to the law and indicated what should be done in the relevant legal context.

LEGISLATION CITED: Evidence Act 1995
ss 118 and 119
Local Government Act 1993
s 440(5)

CASES CITED: Sydney Airports Corporation v Singapore Airlines Ltd and Qantas Airways Ltd [2005] NSWCA 47
Workcover Authority (NSW) (General Manager) v Law Society of New South Wales [2006] NSWCA 84, (2006) 65 NSWLR 502

DATES OF HEARING: 9 March 2009

EX TEMPORE JUDGMENT DATE: 9 March 2009

LEGAL REPRESENTATIVES:
APPLICANT:
Mr P Larkin
SOLICITORS:
Thompson Norrie
1ST-3RD RESPONDENTS
Mr J E Griffiths SC
SOLICITORS
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

9 March 2009

40130 of 2009

CHARLTON v MOORE & ORS

EX TEMPORE JUDGMENT

1 HIS HONOUR: The question before the Court is whether the respondents have discharged their onus of establishing that a document produced by them in answer to a notice to produce issued by the applicants is privileged.

2 The applicant, Belinda Lee Charlton, is an applicant for the vacant position of General Manager of Singleton Council. She is a senior council officer and has been the Acting General Manager of the council at various times since that position became vacant in July 2008. Under a council resolution of 15 December 2008, Mr Gary Woodman was appointed Acting General Manager from 31 January to 22 March 2009 and Ms Charlton was Acting General Manager from 23 March 2009 until commencement of service of the new General Manager.

3 On 27 February 2009, Ms Charlton commenced these proceedings against Susan Rosalie Moore who is the Mayor of Singleton council; Alison Gay Howlett, a councillor who is said to have made a complaint against Ms Charlton which was later withdrawn; and Singleton Council. The Mayor and Ms Howlett were among those appointed by the council to the selection committee for the appointment of the new General Manager. The relief claimed included, inter alia, a declaration that the conduct of the first and second respondents in relation to the processes applicable to the appointment of the General Manager of Singleton council has infringed the principles of procedural fairness, cl 4.4 of the Singleton Council Code of Conduct and/or s 440(5) of the Local Government Act 1993. On the day that the summons was filed, on the applicant’s motion for urgent interlocutory relief (a) the first respondent Ms Moore gave an undertaking to the Court without admissions that she would not participate in any way in the…

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: [2009] NSWLEC 25
Decision Date: 9 March 2009

CaseChat Overview and Summary

Belinda Charlton, an applicant for the vacant position of General Manager at Singleton Council, filed proceedings against the Mayor Susan Moore, a councilor Alison Howlett, and the council itself, alleging procedural unfairness in the appointment process. The court was required to decide whether a document produced by the respondents, a letter from the council's solicitors, was protected by legal professional privilege. The court found that the letter, which contained both legal advice and other information, qualified for legal advice privilege under s 118(a) of the Evidence Act 1995, as it was made for the dominant purpose of providing legal advice. The court relied on broad interpretations of "legal advice" as encompassing advice on what should prudently and sensibly be done in the relevant legal context, as articulated in previous cases. Consequently, the court upheld the claim to legal professional privilege, and the exhibits were ordered to be returned to the respondents.

The Land and Environment Court of New South Wales ruled that the letter from the council's solicitors, Sparke Helmore, was protected by legal professional privilege. The court found that the letter, despite containing extraneous matter, was primarily made for the purpose of providing legal advice. This determination was based on the broad interpretation of "legal advice" as including advice on what should prudently and sensibly be done in the relevant legal context. Therefore, the court upheld the respondents' claim to legal professional privilege, and the documents were ordered to be returned to them.

Orders