Ku-ring-gai Council v Chia - [2018] NSWLEC 40

Land and Environment Court

New South Wales

Medium Neutral Citation: Ku-ring-gai Council v Chia [2018] NSWLEC 40
Hearing dates: 27 March 2018
Date of orders: 27 March 2018
Decision date: 03 April 2018
Jurisdiction: Class 5
Before: Molesworth AJ
Decision:
Order made 27 March 2018
Access is granted in relation to documents produced under the notices to produce dated 26 February 2018, 5 March 2018, 8 March 2018, 12 March 2018 save those documents marked privileged.
Orders made 3 April 2018
See orders at [64].
Catchwords: PRACTICE AND PROCEDURE - notices to produce – objection to access to documents on ground that documents subject to legal professional privilege – whether legitimate forensic purpose
Legislation Cited: Criminal Procedure Act 1986 ss 247J, 247K and 247L
Evidence Act 1995 ss 117, 118, 119
Environmental Planning and Assessment Act 1979 s 125(1)
Land and Environment Court Rules 2007 r 5.2(2)
Uniform Civil Procedure Rules r 34.1
Cases Cited: Bengalla Mining Company Pty Ltd v MACH Energy Australia Pty Ltd [2017] NSWLEC 121
Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2017] NSWLEC 88
Environment Protection Authority v Queanbeyan City Council (No 2) [2011] NSWLEC 159
Grey v R [2001] HCA 65; (2001) 184 ALR 593; 75 ALJR 1708
Hancock v Rinehart [2016] NSWSC 12
Ku-ring-gai Council v Edgar, [2017] NSWLEC 49
Mallard v R [2005] HCA 68 (2005) 224 CLR 125
Marshall Rural Pty Ltd v Basscave Pty Ltd (No 2), [2017] NSWLEC 137
Peacock v R [2008] NSWCCA 264; (2008) 190 A Crim R 454
R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247
Randren House Pty Ltd v Water Administration Ministerial Corporation, [2017] NSWLEC 151
Tweed Shire Council v Reysson Pty Ltd (No2) [2017] NSWLEC 159
Wingecarribee Shire Council v O’Shanassy (No 2) [2014] NSWLEC 32
Texts Cited: Dr Ronald Desiatnik, Legal Professional Privilege in Australia (2nd ed 2005, LexisNexis Butterworths)
Stephen Odgers, Uniform Evidence Act (12th ed 2016)
Category: Principal judgment
Parties: Ku-ring-gai Council (Prosecutor)
Mr John David Chia (Defendant)
Representation:
Counsel:
Mr Steven Berveling (Prosecutor)
Mr Clive Steirn SC (Defendant)
Solicitors:
HWL Ebsworth Lawyers (Prosecutor)
Dentons (Defendant)

File Number(s): 2016/293131
Publication restriction: N/A

JUDGMENT

INTRODUCTION

This matter is a criminal prosecution under Class 5 of the Court’s jurisdiction. By summons filed on 30 September 2016, proceedings were commenced by Ku-ring-gai Council (the Council) against Mr John David Chia (the Defendant), alleging that between about 6 October 2014 and 21 October 2014 at Roseville, NSW, the Defendant committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
The alleged offence was to cause injury to 74 trees protected by a Tree Preservation Order without the consent of the Council and where that consent was required. The trees in question, prior to them being cut down, were located on Lot 1 DP 232774, known…

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.

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Details

Case: [2018] NSWLEC 40
Decision Date: 03 April 2018

CaseChat Overview and Summary

The case of Ku-ring-gai Council versus Chia was before the Supreme Court of New South Wales, where the primary issue was the granting of access to certain documents produced under various notices to produce. The Ku-ring-gai Council sought access to these documents as part of their proceedings against Chia, presumably related to local government matters or enforcement actions. Chia opposed the application, arguing that some of the documents were privileged and should not be disclosed.

The legal issues before the court involved determining whether the documents in question were indeed privileged and, if not, whether they should be disclosed as part of the discovery process. The court had to balance the public interest in access to documents that might be relevant to the proceedings against the protection of privileged communications. The application for access was made under the Supreme Court Rules, specifically rules governing discovery and inspection of documents.

In its decision, the court found that while some of the documents were indeed privileged and not subject to disclosure, others were not privileged and should be made available. The court outlined the criteria for determining privilege and examined each document in turn. It concluded that certain communications between Chia and legal advisors were protected by legal professional privilege, but other documents related to the subject matter of the proceedings were not privileged. Consequently, the court granted access to the non-privileged documents while redacting those that were privileged. This decision was made to ensure that the proceedings could proceed fairly while protecting confidential communications.

Orders

Orders of the court

Order made 27 March 2018

Access is granted in relation to documents produced under the notices to produce dated 26 February 2018, 5 March 2018, 8 March 2018, 12 March 2018 save those documents marked privileged.

Orders made 3 April 2018

See orders at [64].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ku-ring-gai Council v Chia [2018] NSWLEC 40
Hearing dates:	27 March 2018
Date of orders:	27 March 2018
Decision date:	03 April 2018
Jurisdiction:	Class 5
Before:	Molesworth AJ
Decision:	Order made 27 March 2018 Access is granted in relation to documents produced under the notices to produce dated 26 February 2018, 5 March 2018, 8 March 2018, 12 March 2018 save those documents marked privileged. Orders made 3 April 2018 See orders at [64].
Catchwords:	PRACTICE AND PROCEDURE - notices to produce – objection to access to documents on ground that documents subject to legal professional privilege – whether legitimate forensic purpose
Legislation Cited:	Criminal Procedure Act 1986 ss 247J, 247K and 247L Evidence Act 1995 ss 117, 118, 119 Environmental Planning and Assessment Act 1979 s 125(1) Land and Environment Court Rules 2007 r 5.2(2) Uniform Civil Procedure Rules r 34.1
Cases Cited:	Bengalla Mining Company Pty Ltd v MACH Energy Australia Pty Ltd [2017] NSWLEC 121 Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2017] NSWLEC 88 Environment Protection Authority v Queanbeyan City Council (No 2) [2011] NSWLEC 159 Grey v R [2001] HCA 65; (2001) 184 ALR 593; 75 ALJR 1708 Hancock v Rinehart [2016] NSWSC 12 Ku-ring-gai Council v Edgar, [2017] NSWLEC 49 Mallard v R [2005] HCA 68 (2005) 224 CLR 125 Marshall Rural Pty Ltd v Basscave Pty Ltd (No 2), [2017] NSWLEC 137 Peacock v R [2008] NSWCCA 264; (2008) 190 A Crim R 454 R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247 Randren House Pty Ltd v Water Administration Ministerial Corporation, [2017] NSWLEC 151 Tweed Shire Council v Reysson Pty Ltd (No2) [2017] NSWLEC 159 Wingecarribee Shire Council v O’Shanassy (No 2) [2014] NSWLEC 32
Texts Cited:	Dr Ronald Desiatnik, Legal Professional Privilege in Australia (2nd ed 2005, LexisNexis Butterworths) Stephen Odgers, Uniform Evidence Act (12th ed 2016)
Category:	Principal judgment
Parties:	Ku-ring-gai Council (Prosecutor) Mr John David Chia (Defendant)
Representation:	Counsel: Mr Steven Berveling (Prosecutor) Mr Clive Steirn SC (Defendant) Solicitors: HWL Ebsworth Lawyers (Prosecutor) Dentons (Defendant)
File Number(s):	2016/293131
Publication restriction:	N/A