Harden Shire Council v Curtis

The Court of Appeal of New South Wales considered an appeal and cross-appeal concerning the application of client legal privilege. The dispute involved the Harden Shire Council (the appellant) and Mr. Curtis (the respondent), with the central issue revolving around whether a particular document was protected by client legal privilege.

The primary legal question before the court was whether a document, which reproduced the contents of a privileged communication, retained its privileged status. Specifically, the court had to determine if the dominant purpose for which the document was created was for the purpose of obtaining legal advice, thereby attracting client legal privilege, even though it was a reproduction of an earlier privileged communication.

The court reasoned that for a document to be privileged, its dominant purpose must be the seeking or giving of legal advice. While the original communication may have been privileged, the reproduction of that communication in a new document required an independent assessment of the dominant purpose of the *new* document. The court found that in this instance, the dominant purpose of the reproduced document was not for the seeking or giving of legal advice, and therefore it was not privileged.

The appeal was allowed in part, and the cross-appeal was dismissed. The court ordered that a redacted copy of a memorandum be deemed to have been produced to the respondent's solicitors. The respondent was ordered to pay the appellant's costs of the appeal and cross-appeal, with a certificate granted under the Suitors Fund Act concerning the costs of the appeal.