Lukin v State of South Australia

Supreme Court of South Australia
(Civil: Application)
LUKIN v STATE OF SOUTH AUSTRALIA
[2022] SASC 157
Judgment of the Honourable Justice Blue
PROCEDURE AND EVIDENCE - EVIDENCE - LEGAL PROFESSIONAL PRIVILEGE
Application for production of legal advice on the ground that legal professional privilege has been waived.
The applicant seeks judicial review of a decision by the second respondent refusing an application to use certain significant environment benefit credits to offset $62,214.97 otherwise required to be paid into the Native Vegetation Fund. One of the grounds of review is that the applicant was denied procedural fairness.
After hearing submissions on behalf of the applicant, the second respondent sought legal advice from the Crown Solicitor’s Office before making a decision. After receipt of legal advice, the second respondent made the impugned decision.
The applicant contends that the second respondent waived legal professional privilege in the legal advice by disclosure in the judicial review action of a communication sent to members of the second respondent attaching the advice or by pleading the legal advice into issue by certain paragraphs of its response to the statement of facts issues and contentions.
Held:
1The second respondent did not disclose the content, gist or substance of the legal advice and there has been no disclosure waiver (at [35]).
2The second respondent did not by the statement of facts issues and contentions raise as an issue the content, gist or substance of the legal advice and there has been no issue waiver (at [47]).

3 Application dismissed (at [48]).
Native Vegetation Act 1991 (SA) s 28(1), s 25A, s 25B, referred to.
Bennett v Chief Executive Officer of Australian Customs Service (2004) 140 FCR 101; Commissioner of Taxation v Rio Tinto Ltd (2003) 151 FCR 341; DSE (Holdings) Pty Limited v Intertan Inc (2003) 127 FCR 499; GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266; Mann v Carnell (1999) 201 CLR 1; Osland v Secretary to the Department of Justice (2008) 234 CLR 275; Snedden v Minister for Justice (2014) 230 FCR 82, considered.

LUKIN v STATE OF SOUTH AUSTRALIA
[2022] SASC 157
Civil

BLUE J: This is an application for production of legal advice on the ground that legal professional privilege has been waived.
The applicant Dean Lukin seeks judicial review of a decision (the Decision) by the second respondent, the Native Vegetation Council, on 16 February 2022 refusing an application by Mr Lukin to use certain Significant Environment Benefit (SEB) credits to offset $62,214.97 otherwise required to be paid into the Native Vegetation Fund (the Fund). There are several grounds of review. One of the grounds of review is that Mr Lukin was denied procedural fairness in relation to the decision.
Mr Lukin by his senior counsel, Mr Abbott QC (as he then was), made oral submissions at a meeting of the Council on 9 February 2022. Following the departure of Mr Lukin and Mr Abbott QC from the meeting, the Council decided to seek legal advice from the Crown Solicitor’s Office before making a decision.
On 11 February 2022 Adam Schutz, Principal Advisor in the Native Vegetation Branch of the Department for Environment and Water (the Department), sent an email to the Crown Solicitor’s Office requesting legal advice (the Request).
On 15 February 2022 Mr Schutz received an email from the Crown Solicitor’s Office providing legal advice (the Legal Advice). In turn, Mr Schutz provided a copy of the advice to members of the Council using a messaging service called Basecamp.
On 16 February 2022 members of the Council made the Decision “out of session”, which I take to mean that the members signified their assent to the Decision electronically.
Mr Lukin accepts that prima facie the Request and the Legal Advice are protected by legal professional privilege. He contends that the Council waived legal professional privilege in the legal advice by disclosure in the action of the Basecamp communication attaching the advice or by pleading the legal advice into issue by two subparagraphs of its response to the statement of facts issues and contentions.
Background
Mr Lukin is associated with Port Lincoln Proper Pty Ltd (PPP). PPP is engaged in the development of a residential subdivision on land at Port Lincoln (the Subdivision). Stage 3 of the Subdivision received development approval. Stage 3 is itself divided into four stages, including Stage 3A, which comprises 13 residential allotments and associated infrastructure including a public reserve.
In August 2018 Mr Lukin lodged an application with the Department under subsection 28(1) of the Native Vegetation Act 1991 (SA) (the Act) for consent to clear native vegetation off the land the subject of Stage 3A. Mr Lukin stated that his preference was to offset SEB credits against the clearance; in the meantime he offered to provide a bank guarantee for $62,214.97; and he sought approval of the clearance on the basis of the bank guarantee but on the further basis that he would have one year to agree on an offset of SEB credits in lieu of the bank guarantee being called.
In September 2018 the Council approved the application subject to 10 conditions. Conditions 3 to 5 stipulated that the SEB requirement of 102.34 SEB points was to be delivered by an SEB offset on a site yet to be identified to the satisfaction of the Council within one year of the decision date; in the interim security by way of bank guarantee for $62,214.97 was to be provided; and, if the proposed SEB offset were accept by the Council, the bank guarantee would be returned.
Mr Lukin provided the bank guarantee and proceeded with the clearance.
In May 2019 Mr Lukin, on behalf of Arno Bay Progress Association, lodged an application with the Department under section 25A of the Act for establishment of a native vegetation SEB in respect of the property at Arno Bay.
In June 2019 the Council approved the application under section 25A of the Act to establish an SEB credit area providing 587.91 credit points and approved the assignment of those points under section 25B of the Act to Mr Lukin.
In August 2019 Mr Lukin applied by email to the Department to use 102.34 SEB credit points from the Arno Bay property to offset the stage 3A clearance and fulfil condition 3 of the September 2018 approval. An officer of the Department replied stating that it was prepared to treat the email as a formal application to use the SEB credits to offset the money to be paid into the Fund.
On 16 February 2022 the Council refused the August 2019 application.
In March 2022 Mr Lukin instituted this judicial review proceeding.
The evidence
Mr Lukin tendered the minutes of the Council meeting on 9 February 2022. He also tendered various communications between Mr Abbott QC and the Department (including written submissions); minutes from the Department to the Council; and the September 2018 approval.
Mr Lukin also tendered portions of an affidavit by Mr Schutz made on 22 April 2022 (FDN 8), an affidavit made by Mr Schutz on 29 July 2022 (FDN 15) and an affidavit made by Mr Schutz on 5 August 2022 (FDN 17). Mr Schutz also gave oral evidence.
Disclosure waiver
Legal professional privilege only arises in respect of confidential communications (or documents). Accordingly, if the client, being the party entitled to the privilege, subsequently discloses the privileged communication (or document) to the world or to external parties, there is an express waiver because the communication (or document) is no longer confidential. In some cases, express waiver can be limited to the parties to whom the communication (or document) is disclosed or limited to a particular purpose.[1] However, the question of limited waiver does not arise in the present case.
[1] See for example Mann v Carnell [1999] HCA 66, (1999) 201 CLR 1 at [30] per Gleeson CJ, Gaudron, Gummow and Callinan JJ.
If the client subsequently discloses something less than the entirety of the privileged communication (or document), such as the substance of legal advice without disclosing its precise content or the predominant part of the legal advice, there may be an implied waiver of the privilege in respect of the entire communication (or document). This obviously involves questions of fact and degree.
In Mann v Carnell[2] Gleeson CJ, Gaudron, Gummow and Callinan JJ said:
At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received.
Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
…
… Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency.[3]
[2] (1999) 201 CLR 1.
[3] At [28]-[29], [34]. (Footnotes omitted)
In Osland v Secretary, Department of Justice[4] Gleeson CJ, Gummow, Heydon and Kiefel JJ said:
Waiver of the kind presently in question is sometimes described as implied waiver, and sometimes as waiver "imputed by operation of law". It reflects a judgment that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Such a judgment is to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances. In the case of Benecke, referred to in Mann v Carnell, and discussed by Maxwell P in the present case, an appreciation of the unfairness if Mrs Benecke could give her version of her communications with her lawyer and at the same time prevent the lawyer from giving her own version was one aspect of the inconsistency between her conduct in making certain kinds of allegation against her lawyer and holding her lawyer to obligations of confidentiality.
…
Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd, questions of waiver are matters of fact and degree.[5]
[4] [2008] HCA 37, (2008) 234 CLR 275.
[5] At [45], [49]. (Footnotes omitted)
In Bennett v Chief Executive Officer of Australian Customs Service[6] the Australian Government Solicitor, being the solicitor for the Customs Service wrote a letter to Mr Bennett that included the following passages:
AGS has now advised Customs that Public Service Regulation 7(13) does not prohibit all public comment by an officer on matters of public administration. Rather, the sub-regulation must be construed or ‘read down’ so as not to apply to public comment on matters of administration which are already on the public record …
…
AGS has advised Customs that your client is not correct in asserting that he is not subject to the Act and Regulations if he makes public statements about Customs-related matters in his capacity as President of COA [Customs Officers’ Association]. It is a matter for your client, in the light (perhaps) of legal advice provided by you, whether he adheres to or moderates his position on this question.[7]
[6] [2004] FCA 237, (2004) 140 FCR 101.
[7] At [58].
Gyles J (with whom Tamberlin J agreed) held that this involved the disclosure of the gist or substance of the advice and waived privilege in the advice. He said:
The voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the whole of the advice to which reference is made including the reasons for the conclusion. The primary judge was in error in drawing a distinction between conclusion and reasoning in the context of such a disclosure.[8]
[8] At [65].
Tamberlin J said:
Various expressions are used in the formulation of principles relating to waiver of legal professional privilege, such as references to ‘the substance’, ‘effect’, or ‘content’ of the advice. The weight of the authorities, in my view, supports the conclusion that the disclosure of the conclusion reached in or course of action recommended by, an advice can amount to waiver of privilege in respect of the premises relating to the opinion which has been disclosed, notwithstanding that this reasoning is not disclosed. By way of illustration, if there is a disclosure that a client has been advised that interpretation ‘A’ is preferable to interpretation ‘B’ of a legislative provision, then even if there is no disclosure of the reasoning leading to that conclusion, the reasoning and content of the advice may be waived, including the factual premises and circumstances leading to that conclusion.
Disclosure of one conclusion but not others in an advice does not necessarily amount to waiver in respect of the non-disclosed conclusions. However, if the conclusions and reasoning are so interconnected that they cannot be separated or isolated, then it may be that the whole of the advice on which all those conclusions are based, must be considered to have been waived.[9]
[9] At [13]-[14].
In the present case, Mr Lukin relies upon an exhibit to Mr Schutz’ affidavit made on 5 August 2022 as disclosing the substance of the advice provided by the Crown Solicitor’s Office.
By way of background, in his affidavit made on 22 April 2022 Mr Schutz said:
The Council elected not to make a decision on the day, but to further consider the matter, including seeking legal advice. (I refer to this legal advice only to explain the timeline of the decision. I am not authorised to, and do not, waive privilege with respect to any legal advice obtained with respect to this matter.)
In his affidavit made on 29 July 2022 Mr Schutz said:
I make this affidavit to support the claim for legal professional privilege in relation to legal advice referred to in paragraph [71] of my first affidavit made on 22 April 2022.
To the extent that it is necessary to refer to that legal advice in this affidavit, I do so only for the purpose of supporting the Respondents’ claim of legal professional privilege in relation to that advice. I’m not authorised to, and do not, waive privilege with respect to that advice.
On 11 February 2022, at the Native Vegetation Council’s (Council) request, I sent an email to a solicitor in the Crown Solicitor’s Office requesting that the Crown Solicitor provide legal advice.
On 15 February 2022, I received an email from the solicitor in the Crown Solicitor’s Office providing legal advice in response to my request. I provided the advice to the Council members on that day.
Mr Lukin rightly does not contend that there was any waiver by reason of these references to the legal advice. He contends that there was a waiver as a result of Mr Schutz exhibiting to his affidavit made on 5 August 2022 a redacted version of his communication via Basecamp to the members of the Council sent on 15 February 2022 (the Basecamp communication). That redacted version provides:
[first three paragraphs redacted]
The Native Vegetation Branch remains of the view that the proposal to achieve the SEB by the use of SEB credits from Arno Bay does not outweigh the impacts of the clearance at Lincoln Cove. The reasons are set out in the proposed decision letter and the minutes provided to the NVC.
[redacted] and the information presented to the NVC on 9 February 2022, it is recommended [t]hat the Native Vegetation Council (NVC):
1Refuses the application to use 102.34 SEB points from SEB Credit area No. 2019/4004/921 to provide an Significant Environmental Benefit (SEB) for the clearance of 1.49 ha of native vegetation in relation to application 2018/3138/931; and
2Calls on the Bank Guarantee of $62,214.97 associated with application 2018/3138/931.
Please provide a response as soon as possible to indicate if you support the recommendation.
Mr Lukin contends that it should be inferred that the redacted words at the beginning of the fifth paragraph are to the effect “Based on the legal advice” and, if that inference is drawn, the effect of the disclosure of the redacted version of the Basecamp communication is to disclose the substance or gist of the legal advice.
As identified by the High Court in Osland v Secretary, Department of Justice,[10] the context in which the putative disclosure is made is to be taken into account. The context in which the redacted version of the Basecamp communication was disclosed was in this proceeding in response to contentions made in the Statement of Facts Issues and Contentions and the redactions were made for the purpose of protecting legal professional privilege in the Legal Advice.
[10] (2008) 234 CLR 275 at [49] per Gleeson CJ, Gummow, Heydon and Kiefel JJ.
Considered in context, disclosure of the redacted version of the Basecamp communication did not disclose the substance or gist of the advice. First, the position cannot be equated with the position that would apply if the initial words of the fifth paragraph were disclosed and comprised “Based on the legal advice”. Although it is possible that the redacted passage comprised those words or words to that effect there are various other possibilities (including for example “Having regard to the legal advice”) and it cannot be inferred with the requisite degree of satisfaction that it did comprise those words or words to that effect. Further, in context, the mere fact that an inference might be available as to redacted words does not equate to disclosure.

Secondly, in any event nothing was disclosed to indicate the subject matter of the advice. The written and oral submissions made on behalf of Mr Lukin raised various aspects in relation to the decision to be made by the Council. It is simply unknown, based on such disclosure as was made, on what topic or issue the legal advice from the Crown Solicitor’s Office was sought and obtained. Without knowing the topic or issue the subject of the advice, even if it were inferred that the redacted passage comprised “Based on the legal advice”, there was and could be no disclosure of the substance or gist of the advice.
During the hearing, I was invited by Mr Lukin to view an unredacted version of the Basecamp communication to ascertain what were the initial, redacted, words at the commencement of the fifth paragraph. I decline to do so because the actual words so appearing are irrelevant to disclosure waiver. Those words were not disclosed and hence regard cannot be had to them for the purpose of determining whether there was a disclosure waiver.
No disclosure waiver has been established.
Issue waiver
The state of mind of the Council is raised by Mr Lukin’s Statement of Facts Issues and Contentions. However, the mere fact that an administrative decision maker has received legal advice that affected the decision does not entail that there is a waiver of legal professional privilege in respect of that legal advice.
In Snedden v Minister for Justice for the Commonwealth[11] Middleton and Wigney J (with whom Pagone J relevantly agreed) said:
There could be little doubt that the OIL advice was privileged. The Department was accordingly not required to disclose it. Nor could it be obliged to disclose the “gist” or “substance” of the privileged advice in the circumstances. Any such disclosure, to be meaningful in the context of procedural fairness, would inevitably result in a waiver. An administrative decision-maker cannot be compelled to disclose the gist of legal advice if this would result in waiver of the privilege.[12]
[11] [2014] FCAFC 156, (2014) 230 FCR 82.
[12] At [237]. (Reference omitted)
The focus therefore in relation to issue waiver is not the fact that the opponent of the party who obtained the legal advice raises an issue of the latter party’s state of mind which was impacted by the legal advice. The question is whether the party who obtained the legal advice has themselves raised or pleaded an issue as to their state of mind which was impacted by the legal advice.
In DSE (Holdings) Pty Limited v Intertan Inc[13] Allsop J said:
It is sufficient to understand, I think, that in most undue influence cases … the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication.[14]
[13] [2003] FCA 384, (2003) 127 FCR 499.
[14] At [58].
In Federal Commissioner of Taxation v Rio Tinto Ltd[15] Kenny, Stone and Edmonds JJ said:
It is plain enough that the majority in Mann also saw the ‘issue waiver’ cases as a species of waiver, to which the same basic principle applied. Their Honours’ analysis in Spalvins emphasises, as does the majority in Mann, that waiver comes about because the privilege holder’s conduct is inconsistent with the continued confidentiality of the communication because he or she has put in issue the character or contents of the communication in pursuing a right or claim, or has created a situation where another party must reasonably do so by way of a defence.
…
Both before and after Mann, the governing principle required a fact-based inquiry as to whether, in effect, the privilege holder had directly or indirectly put the contents of an otherwise privileged communication in issue in litigation, either in making a claim or by way of defence. [The Court then reproduced the passage from DSE (Holdings) Pty Ltd v Intertan Inc quoted above]
Further, in exposing his states of mind and the basis for it, the Commissioner would not ordinarily act in a manner inconsistent with the maintenance of privilege over legal advice relevant to his attaining a state of satisfaction or exercising his discretion in a particular way. … Even though such communications may contribute to the decision-making, the mere reference to this fact by a decision-maker in the course of defending a judicial review application or on a taxation appeal is not inconsistent with the maintenance of the privilege. This is because the decision-maker (here the Commissioner) would not put such legal advice in issue merely by saying that the advice was relevant or contributed to his decision. There would be no issue waiver because the decision-maker would not have done anything inconsistent with the maintenance of privilege. The situation might be otherwise if the decision-maker puts the contents of the legal advice in issue by specifically relying on the contents of the advice (and not merely the fact of the advice) to vindicate his claimed state of satisfaction or exercise of discretion.[16]
[15] [2006] FCAFC 86, (2003) 151 FCR 341.
[16] At [54], [61] and [67]. (References omitted)
In GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd[17] Macfarlan JA (with whom McCallum JA and Simpson AJA agreed) said:
[17] [2020] NSWCA 266.
Post Mann v Carnell Federal Court authorities, such as DSE and Macquarie Bank, direct particular attention to whether an express or implied assertion has been made “either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny”.
…
I draw from these authorities the following propositions of present relevance:
(1)The test is one of inconsistency between the privilege holder’s conduct and its maintenance of the privilege, not one of general fairness or of relevance to an issue in the proceedings.
(2)Enquiring whether the privilege holder has made express or implied assertions about the contents of the confidential communications, and whether its conduct has therefore “laid open the communications to scrutiny”, assists in ensuring that the court’s focus is on inconsistency rather than simply relevance. If the privilege holder is understood to be asserting something about the contents of the communications, it is but a short step to conclude that it would be inconsistent for it to prevent those contents being scrutinised.
(3)On the other hand mere relevance of the content of the privileged communications to an issue raised in the proceedings by the privilege holder does not equate to inconsistency – something more is needed. It is of the essence of legal professional privilege that, if maintainable, it entitles a party to withhold potentially relevant documents from inspection by the other party.
(4)The determination of whether there has been an express or implied assertion about the contents of privileged communications giving rise to a relevant inconsistency is an evaluative decision to be made after consideration of the whole of the circumstances of the case. No hard and fast rules can be formulated. Those circumstances will include the degree of relevance of any advice to the issues in the proceedings, the centrality of the relevant issues in the proceedings and the likelihood of advice having been given, informed, as the High Court said in Mann v Carnell, by considerations of fairness.
(5)Having considered all those circumstances, the court must decide whether it would be inconsistent with the privilege holder’s conduct for it to maintain privilege. The line between relevance to an issue and inconsistency in this context may be very fine and therefore one on which views might well differ.[18]
[18] At [55] and [57].
Mr Lukin relies upon sub-subparagraphs (v) and (vi) of subparagraph 25e of the Respondents’ Response to the Statement of Facts Issues and Contentions (the Response). Paragraph 25 of the Response responds to paragraph 26 of Mr Lukin’s Statement of Facts Issues and Contentions, which pleads that the hearing conducted by the Council on 9 February 2022 deprived him of the possibility of a successful outcome in that the Council denied him procedural fairness. One of the particulars of that pleading is:
d.…[T]he Second Respondent had regard to legal advice from the Crown Solicitor’s Office which was relevant to its determination.
i.     Regardless of whether the legal advice was initially or notionally subject to the “advice privilege” within the context of legal professional privilege (which is not conceded), given the Second Respondent’s reliance on that advice, it is subject to “issue waiver” and should have been disclosed to the Applicant for comment.
ii.    In the alternative to (d)(i) above, the substance or gist of the legal advice should have been disclosed to the Applicant for comment prior to the decision being made.
iii.     In the alternative to (d)(i) and (ii) above, the legal advice should have been disclosed to the Applicant insofar as it: 1) was adverse to the Applicant’s interests; 2) raised important issues that had not previously been disclosed to the Applicant (or which were not otherwise obviously open on the known material); and 3) was capable of being responded to.
Paragraph 25 of the Response pleads (emphasis added to identify the relevant sub-subparagraphs):
The Applicant was not denied procedural fairness.
a.The Applicant was provided with copies of the written material that was before the Council.
b.     The Applicant was afforded an oral hearing.
c.     The Applicant was represented at the oral hearing.
d.The Council had regard to multiple written submissions made by Senior Counsel for the Applicant.
e.     In the circumstances of this case, procedural fairness:
i.     did not require that the Applicant be afforded the opportunity to hear oral advice and comments from the Branch to the Council with respect to the 2019 application;
ii.    did not require that any advice from the Branch to the Council be recorded and disclosed;
iii.     did not require the Council disclose the specific statutory power being exercised. In any event, the Applicant knew that he was applying for condition 3 to [b]e satisfied;
iv.     did not require disclosure of the internal deliberations of the Council;
v.     did not cause any waiver of the legal professional privilege in legal advice obtained with respect to the 2019 application;
vi.    did not require disclosure of the substance of the gist of legal advice; and
vii     did not require that the Applicant was afforded a right of reply.
By paragraph 26d i of his Statement of Facts Issues and Contentions, Mr Lukin contended that there had already been an issue waiver prior to filing of the Response. Paragraph 25e v of the Response amounts to a bare denial that there had been an issue waiver. That pleading makes no positive assertion about the content, substance or gist of the legal advice. That pleading is incapable of resulting in issue waiver.
By paragraph 26d ii and iii of his Statement of Facts Issues and Contentions, Mr Lukin contended that the Council should have disclosed the substance or gist of the legal advice or parts of it for comment by him before making the decision. Paragraph 25e vi of the Response amounts to a bare denial that there was any such disclosure requirement. That pleading makes no positive assertion about the content, substance or gist of the legal advice. That pleading is incapable of resulting in issue waiver.
As observed above, I was invited by Mr Lukin to view an unredacted version of the Basecamp communication to ascertain what were the initial, redacted, words at the commencement of the fifth paragraph. I decline to do so because the actual words so appearing are irrelevant to issue waiver.
No issue waiver has been established.
Conclusion
I dismiss Mr Lukin’s oral application for production of the legal advice. I will hear the parties as to costs.

[2022] SASC 157

23 December 2022