Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Joseph v Spencer [2025] NSWCA 80 Hearing dates: 7 April 2025 Date of orders: 24 April 2025 Decision date: 24 April 2025 Before: Kirk JA Decision: (1) The applicant’s motion filed on 4 February 2025 is dismissed.
(2) The applicant is to pay the respondents’ costs of the motion.
(3) The material provided to the Court by the Spencers and the Council over which privilege was claimed is to be returned to their respective solicitors.
Catchwords: CIVIL PROCEDURE – notices to produce under r 21.10 of Uniform Civil Procedure Rules 2005 (NSW) – relevant to a fact in issue – justification for production concerns decision not impugned in summons – summons does not set out serious allegations invoked as basis for seeking documents – disputed documents not relevant to fact in issue
CIVIL PROCEDURE – notices to produce under r 21.10 of Uniform Civil Procedure Rules 2005 (NSW) – objection to production of documents or things – client legal privilege – whether waived for purposes of s 122 of Evidence Act 1995 (NSW) – filing of document content of which influenced by views of an expert does not establish disclosure of those views, nor does expert’s agreement to be bound by expert witness code of conduct, nor does provision of joint expert report to court – no prima facie evidence to found alleged misconduct under s 125 of Evidence Act 1995 (NSW)
CIVIL PROCEDURE – notices to produce under r 21.10 of Uniform Civil Procedure Rules 2005 (NSW) – objection to production of documents or things – document prepared for purposes of or in course of or as result of conciliation conference for purposes of s 34(11) of the Land and Environment Court Act 1979 (NSW) – s 34(11) enables production of documents to be resisted if relevant purpose dominant – protection ends when final version presented to commissioner for purpose of seeking s 34(3) decision
Legislation Cited: Civil Procedure Act 2005 (NSW), s 30(4)
Evidence Act 1995 (NSW), ss 122, 125, 131, 131A
Land and Environment Court Act 1979 (NSW), ss 34, 34AA(2)
Kiama Local Environmental Plan 2011 (NSW), cll 4.6, 6.7
Uniform Civil Procedure Rules 1999 (Qld), r 212(2)
Uniform Civil Procedure Rules 2005 (NSW), rr 1.9, 21.9, 21.10, 21.11, 51.45(1A), 59.6, Sch 7
Cases Cited: Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; [1997] HCA 3
Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12; (2019) 367 ALR 256
Esso Australia Resources v Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67
GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266
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- AGLC
- Joseph v Spencer [2025] NSWCA 80
- Case
- [2025] NSWCA 80
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the documents sought by the notice to produce were relevant to a fact in issue, and whether certain documents were protected by client legal privilege or by the provisions of section 34(11) of the *Land and Environment Court Act 1979* (NSW) relating to conciliation conferences. The applicant also contended that privilege had been waived under section 122 of the *Evidence Act 1995* (NSW) and that there was prima facie evidence of misconduct under section 125 of that Act.
Kirk JA found that the summons seeking the documents did not set out serious allegations that would justify their production, and the disputed documents were not relevant to a fact in issue. His Honour also determined that the filing of a document influenced by expert views, the expert's agreement to the expert witness code of conduct, or the provision of a joint expert report to the court did not establish a waiver of client legal privilege or provide prima facie evidence of misconduct. Furthermore, documents prepared for or in the course of a conciliation conference were protected under section 34(11) of the *Land and Environment Court Act 1979* (NSW), with that protection continuing until the final version was presented to a commissioner for the purpose of seeking a decision.
Consequently, the applicant's motion was dismissed, and the applicant was ordered to pay the respondents' costs of the motion. The privileged material was to be returned to the respective solicitors.
Orders
Orders of the court
(1) The applicant’s motion filed on 4 February 2025 is dismissed.
(2) The applicant is to pay the respondents’ costs of the motion.
(3) The material provided to the Court by the Spencers and the Council over which privilege was claimed is to be returned to their respective solicitors.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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