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Franks v Warringah Council

Franks v Warringah Council

Case [2010] NSWSC 1318 17 November 2010

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CITATION: Franks v Warringah Council [2010] NSWSC 1318

HEARING DATE(S): 14 October 2010

JUDGMENT DATE :
17 November 2010

JUDGMENT OF: R A Hulme J

DECISION: 1. The first defendant's application to set aside the plaintiff's subpoena is granted.
2. The subpoena issued on 12 April 2010 at the request of the plaintiff is set aside.
3. The plaintiff's application for further and better discovery is granted.
4. The first defendant is to serve upon the plaintiff within 14 days of the date of this judgment a supporting affidavit pursuant to UCPR r 21.4 in respect of the lists of documents of 24 August 2010 and 13 October 2010.

CATCHWORDS: PROCEDURE - discovery and interrogatories - discovery and inspection of documents - compliance with UCPR - production and inspection - grounds for resisting - legal professional privilege - claim for privilege over documents - further and better discovery - subpoena seeking discoverable documents an abuse of process

LEGISLATION CITED: Uniform Civil Procedure Rules 2005
Evidence Act 1995
Local Government Act 1993

CASES CITED: ATH Transport v JAS (International) Australia Pty Ltd [2002] NSWSC 956
Attorney General for the Northern Territory of Australia v Kearney [1985] HCA 60; 158 CLR 500
Azzi and Ors v Volvo [2006] NSWSC 283
Bailey v Director-General of Land and Water Conservation [2009] NSWCA 100; 74 NSWLR 333
Baker v Campbell [1983] HCA 39; 153 CLR 52
Barnes v Commissioner of Taxation (Cth) [2007] FCAFC 88; 242 ALR 601
Commissioner of Australian Federal Police and Anor v Propend Finance Pty Ltd and Ors [1997] HCA 3; 188 CLR 501
Council of the New South Wales Bar Association v Archer [2008] NSWCA 164; 72 NSWLR 236
DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; 127 FCR 499
Fruehauf Finance Corporation Pty Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359
Grant v Downs [1976] HCA 63; 135 CLR 674
Kang v Kwan & 2 Ors [2001] NSWSC 698
Mann v Carnell [1999] HCA 66; 201 CLR 1
Michael Wilson and Partners Ltd v Nicholls and Others [2008] NSWSC 1230; 74 NSWLR 218
State of New South Wales v Jackson [2007] NSWCA 279
Sugden v Sugden [2007] NSWCA 312; 70 NSWLR 301

PARTIES: Phillip Maurice Franks (Plaintiff)
Warringah Council (First Defendant)
Stephen Blackadder (Second Defendant)

FILE NUMBER(S): SC 2004/177147

COUNSEL: Mr M G McHugh (Plaintiff)
Mr S Glascott (Defendants)

SOLICITORS: DTA Lawyers
DLA Phillips Fox

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

R A Hulme J

17 November 2010

2004/177147 Phillip Maurice FRANKS v Warringah Council & anor
JUDGMENT

The proceedings

1. By further amended statement of claim filed on 7 February 2008, the plaintiff, Phillip Maurice Franks, seeks damages in various forms as a consequence of alleged mala fides and/or misfeasance in the actions of the first defendant, Warringah Council, through its officers, including the second defendant, Mr Stephen Blackadder, who was the general manager.
2. The plaintiff and…

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.

Continue reading Franks v Warringah Council

Details

AGLC: Franks v Warringah Council [2010] NSWSC 1318
Case: [2010] NSWSC 1318
Decision Date: 17 November 2010

CaseChat Overview and Summary

In the matter of Franks v Warringah Council, the plaintiff sought discovery of documents from the defendant, Warringah Council, pursuant to the Uniform Civil Procedure Rules. The plaintiff aimed to obtain documents related to a planning application and subsequent communications. The dispute was heard in the Supreme Court of New South Wales. The plaintiff argued that the defendant had failed to provide adequate documentation and claimed that the documents were protected by legal professional privilege.

The central legal issues in the case involved the scope of discovery and inspection of documents under the UCPR, the grounds for resisting production, and the application of legal professional privilege. The plaintiff contended that the defendant's failure to provide the requested documents was a non-compliance with the UCPR. Additionally, the plaintiff sought to establish that certain documents were protected by legal professional privilege and thus should not be disclosed. The defendant, on the other hand, resisted the application on the grounds that the plaintiff had not adequately identified the documents sought and that some of the documents were privileged.

The court found that the plaintiff had not sufficiently identified the documents sought in their initial application for discovery, resulting in the refusal of that application. However, the court granted leave for further and better discovery, allowing the plaintiff to amend their application to specify the documents they sought. Regarding the claim of legal professional privilege, the court held that the privilege did not extend to documents that were relevant to the planning application and its subsequent communications. The court also ruled that the subpoena seeking discoverable documents was not an abuse of process but rather a legitimate means of obtaining necessary evidence.

As a result, the court ordered the defendant to provide the specified documents and set aside the subpoena. The plaintiff was granted leave to amend their application for further and better discovery to identify the documents more precisely. The defendant was required to produce the identified documents within a specified timeframe, subject to any applicable claims of privilege. The court's decision underscored the importance of specificity in discovery applications and the limited scope of legal professional privilege in the context of planning applications.

Orders