CHRISTIE and TOWN OF EAST FREMANTLE

[2006] WASAT 158

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION:   CHRISTIE and TOWN OF EAST FREMANTLE [2006] WASAT 158

MEMBER:   MS M CONNOR (MEMBER)

HEARD:   1 AND 10 MARCH 2006 (FURTHER WRITTEN SUBMISSION 21 MARCH 2006)

DELIVERED          :   16 JUNE 2006

FILE NO/S:   DR 379 of 2005

BETWEEN:   PETER CHRISTIE

Applicant

AND

TOWN OF EAST FREMANTLE
Respondent

Catchwords:

Exclusion of document from Applicants' Bundle of Documents – Legal professional privilege – Privilege attaches to Council not individual members

Legislation:

State Administrative Tribunal Act 2004, s 78(1)

Result:

Document excluded

Category:    B

Representation:

Counsel:

Applicant:     Ms B Moharich

Respondent:     Mr C Slarke

Solicitors:

Applicant:     Lavan Legal

Respondent:     McLeods

Case(s) referred to in decision(s):

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of the Tribunal's decision

1. Mr Peter Christie applied to the State Administrative Tribunal for review of the decision of the Town of East Fremantle refusing planning approval for a two­­storey dwelling with undercroft garage at Lot 5049 (No 18) Munro Street, East Fremantle.

2. During the course of the hearing, the Tribunal excluded a document from the "Applicants' Bundle of Documents". Pursuant to s 78(1) of the State Administrative Tribunal Act 2004 (WA), the applicant requested written reasons for this decision.

Introduction

1. Mr Peter Christie (applicant) applied to the State Administrative Tribunal for review of the decision of the Town of East Fremantle (respondent) refusing planning approval for a two­­storey dwelling with undercroft garage at Lot 5049 (No 18) Munro Street, East Fremantle.

2. Included in the "Applicants' Bundle of Documents" (bundle) was correspondence dated 8 April 2005 from the respondent's solicitors (McLeods) to the respondent (the document).  The document contained communications concerning the merits of the application and opinion relating to the likelihood of success if the matter proceeded to hearing.

3. The Tribunal during the course of the hearing excluded this document from the bundle.  The applicant has requested written reasons for this decision.

Background

1. The Tribunal raised the inclusion of the document as a preliminary issue at the commencement of the hearing of this matter.  Counsel for the respondent considered that it was not an appropriate document to be included in the bundle and did not know how the applicant had obtained a copy of the document.

2. According to Counsel for the applicant, the document had been obtained lawfully from one of the councillors of the Town of East Fremantle.  It appears that the document was one of a bundle of documents given to the applicant prior to a Council meeting.  Counsel for the applicant claimed that the document had lost the privilege that might otherwise have been attached, since the document was released by an authorised officer of the Council.

3. Counsel for the applicant explained that the reason for inclusion of the document was "not to form the basis necessarily of the matter … but to set up a basis for an application for costs, if the applicants are successful in this matter.  That is the only reason why it [had] been included".

4. The Tribunal found that it was not appropriate that this document form part of the bundle.

Reasons

1. The Tribunal found that the document involved communications between the respondent and its solicitors that were provided during the provision of legal services and, as such, fell within "legal professional privilege".  The Tribunal did not consider this privilege to have been waived by a councillor giving the document to the applicant.  The Tribunal was of the view that privilege attaches to the Council and not individual members of the Council, and that, in this instance, as the document had not been released by the Council, privilege still attached to the document.

2. For the abovementioned reasons, the Tribunal excluded the document from the bundle.

I certify that this and the preceding [11] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS M CONNOR, MEMBER