Flower and Samios Pty Limited v Ku-ring-gai Council
[2001] NSWLEC 187
•07/31/2001
Land and Environment Court
of New South Wales
CITATION: Flower and Samios Pty Limited v Ku-ring-gai Council [2001] NSWLEC 187 PARTIES: APPLICANT
RESPONDENT
Flower and Samios Pty Limited
Ku-ring-gai CouncilFILE NUMBER(S): 10303 of 2000 CORAM: McEwen AJ KEY ISSUES: Practice and Procedure :- privileged document LEGISLATION CITED: Evidence Act 1995, s 122 CASES CITED: Attorney General for the Northern Territory v Maurice and Ors (1986) 161 CLR 475;
Benecke v National Australia Bank (1993) 35 NSWLR 110;
Multistar Pty Limited v The Minister for Urban Affairs and Planning and Anor [2000] NSWLEC 231DATES OF HEARING: 31/07/2001 EX TEMPORE
JUDGMENT DATE :
07/31/2001LEGAL REPRESENTATIVES:
APPLICANT
Mr A Whealy (Solicitor)SOLICITORS
Pricewaterhouse Coopers LegalRESPONDENT
SOLICITORS
Mr D Dupree (Solicitor)
Pike Pike and Fenwick
JUDGMENT:
IN THE LAND AND 10303 of 2000
ENVIRONMENT COURT McEwen AJ
OF NEW SOUTH WALES 31 July 2001
- Applicant
- Respondent
1. This matter comes before the Court in relation to a notice to produce issued by the applicant addressed to the respondent Council seeking the production today at Court of the document identified as a statement of evidence prepared by Mr Ian English, dated July 2001 in relation to these proceedings. Mr Ian English is an arborist retained on behalf of the Council to advise in relation to this application. The proceedings concern a SEPP 5 development application on a block of land of some 50 or so hectares, close by the present Seventh Day Adventist Hospital in Ku-ring-gai.
2. The basis of the application Mr Whealy solicitor for the applicant tells me, is that the report by Mr Ian English was cited in part in a report prepared in draft form by Dr Stephen Ambrose, an ecologist with specialised knowledge in relation to bird life and habitat who was retained on behalf of the Council. Dr Ambrose prepared a draft report dated 12 July 2001, running to some 15 pages, a copy of which was served in draft form by the Council on the applicant’s solicitors on 10 July 2001. Under the heading “Eight Part Test” Dr Ambrose notes that from a portion of a statement of evidence prepared by Mr Ian English dated July 2001, and I read it as follows:
Nearly all of the trees on the ridge top will be cleared or have the potential to die (from root and trunk damage from soil compaction and building construction and changes to soil drainage conditions) as a result of the proposed development.
3. Mr Whealy maintains that the Council in serving the report of Dr Ambrose with the excerpt from Mr Ian English’s draft report contained therein, has waived privilege in relation to the whole of Mr English’s draft report.
4. Mr Dupree for the Council tendered a copy of the purportedly privileged document of Mr Ian English, and it has become exhibit B. It is plain from my reading of the report that it is in draft form, and is yet to be settled, (I expect) in conference with Mr Dupree and counsel briefed on behalf of the Council. It is a report running to 19 pages and covers a variety of aspects of the proposed development, there being a passing reference to the basis of Dr Ambrose’s conclusion in two or three lines on page four of that report. Mr English’s report covers a variety of other factors which are no doubt yet to be the subject of conference with legal advisers for the Council.
5. Mr Whealy maintains that the revelation of that portion of Mr English’s report in Dr Ambrose’s report has waived privilege for a variety of reasons. The question is whether or not under s 122 of the Evidence Act 1995, there has been loss of the privilege that the report would otherwise enjoy. To lose privilege under s 122, the person entitled to privilege in the terms of that section, has to knowingly and voluntarily disclose the substance of the advice in respect of which privilege is sought. What the applicant maintains is that here the identified description of Mr English’s opinion by Dr Ambrose has “knowingly and voluntarily” disclosed the substance of his entire report. That may be so in relation to the quoted excerpt but in the context of the overall report by Mr English it doesn’t seem to me to be a disclosure by the Council for the purposes contemplated under s 122.
6. Reference was made to the decision by Mr Justice Lloyd in Multistar Pty Limited v The Minister for Urban Affairs and Planning and Anor [2000] NSWLEC 231, unreported. There his Honour was concerned with the disclosure of advice provided by counsel to the Council, the advice being sought by the applicant developer, on the basis that privilege had been waived. His Honour was of the view in granting access to the legal advice in that instance that the substance of the advice provided by counsel to the Council had in fact been provided to the applicant and the public, and hence that privilege had been waived.
7. His Honour referred to a number of cases, amongst which was the decision of the Court of Appeal in Benecke v National Australia Bank (1993) 35 NSWLR 110. In that decision reference is made to the oft cited decision of the High Court in Attorney General for the Northern Territory v Maurice and Ors (1986) 161 CLR 475 which Mr Justice Lloyd noted referred to Wigmore in Evidence, a portion of which he excerpted in his decision in Multistar to the following effect, I quote:
When his conduct touches a certain point of disclosure fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed after disclosing so much as he pleases to withhold the remainder.
8. The question here is whether or not the disclosure has reached a certain point such that fairness dictates that privilege ought no longer be maintained. In Maurice the question was put another way. Their Honours there considered the common law test as to whether or not privileged material had been used in such a way that the privilege holder, by virtue of his conduct, became obliged to disclose it, and that it was then unfair to maintain privilege. Put another way the question is whether or not privilege material has been used in such a way by the privilege holder that by virtue of his or her conduct it has become unfair to maintain the privilege. In my view in the instant circumstances I do not think that has happened.
9. All that has been disclosed is a small portion of Mr English’s report which deals with a factual matter; viz, the effect of clearing of trees. I invited the representatives of the parties to indicate whether or not there was a basis in the Issues for a similar argument or issue to that raised by the excerpt portion of Mr English’s report. The Issues themselves are, except in a general and non-specific way, silent on the matter. However, it would be expected that a view of the plans and the topography of the site would disclose whether or not there is a proper basis for Mr English’s view in fact. Rather than it being a legal opinion or view, that of Mr English is one by an expert based on facts. The simple analysis is that it either will happen or it wont. By disclosing Mr English’s view however, in Dr Ambrose’s report, the Council has not waived privilege in such a fashion that it would be unfair to the applicant to have that privilege upheld at this instance. If I am wrong in that regard it should be borne in mind that these proceedings are fixed for hearing two weeks on 20 August 2001. This Friday 3 August 2001 is the cut off day for exchange of reports in any event.
10. Mr Whealy says that the access now to Mr English’s report would provide a further opportunity to meet what the applicant says is a new issue recently raised. It was an issue added apparently to an amended version of the fifth amended Statement of Issues by Mr Justice Talbot when it came before him on 17 July 2001. At that time no application was made to vary either the dates for hearing or the Practice Direction in relation to the exchange of reports. In circumstances where it will only be another three days before Mr English’s report will be in final format and served, as I am told by Mr Dupree it will be, as part of the Council’s evidence, little additional or real utility would be served by providing access at this stage. I say that in the context of the period thereafter in my opinion being sufficient for this issue to be addressed by experts retained on behalf of the applicant. If there is a need for the putting on of further evidence I would expect that an appropriate indulgence would be granted to the applicant. For those reasons I am of the view that the notice to produce, returnable today, should be dismissed.
11. As the Council does not seek costs, notwithstanding the Council was brought here in my view, unnecessarily in the circumstances, I will say no more.
12. Exhibit B is to remain with the papers in the form in which it is presently contained, that is within the envelope which I will seal.
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