Manor Central Nominees Pty Ltd v Wyndham City Council

[2020] VSC 151

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 00475

MANOR CENTRAL NOMINEES PTY LTD	First Plaintiff
MANOR COMMERCIAL COMPANY PTY LTD	Second Plaintiff
v
WYNDHAM CITY COUNCIL	Defendant

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JUDICIAL REGISTRAR:	Irving JR
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	01 April 2020
CASE MAY BE CITED AS:	Manor Central Nominees Pty Ltd & Anor v Wyndham City Council
MEDIUM NEUTRAL CITATION:	[2020] VSC 151

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PRACTICE AND PROCEDURE – Waiver of client legal privilege – whether party acted in a way that is inconsistent with its objection to disclosure pursuant to s 122 of the Evidence Act 2008 (Vic).

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ON THE PAPERS:	Counsel	Solicitors
For the Plaintiffs	BC Chessell	Minter Ellison
For the Defendant	NM Wood	Russell Kennedy

JUDICIAL REGISTRAR:

1. By summons, the plaintiffs seek an order that the Wyndham City Council (‘the Council’) make particular discovery of the wholly unredacted Minutes of the Council’s meeting of 8 November 2017.

1. On 6 February 2019, the plaintiffs commenced judicial review proceedings concerning the Council’s decisions to issue a Notice of Intention to Acquire and a Notice of Acquisition (‘the Notices’) under the Land Acquisition and Compensation Act 1986 (Vic) in respect of a carriageway easement on land on which the Manor Lakes Town Centre is situated.

1. The plaintiffs allege that the Council acted for an ulterior or improper purpose in issuing the Notices so that its decisions to issue them are affected by jurisdictional error. The relevant decisions were made at the Council’s meeting of 8 November 2017.

1. The plaintiffs received a version of the relevant Council Minutes when, on 2 December 2019, the Council filed a further affidavit of Kelly Louise Grigsby exhibiting the Minutes in partially redacted form. Prior to this the Council had provided the plaintiffs with the Council’s resolutions but not the Minutes of the meeting.

1. Two issues arise for decision on the summons. The first is whether the redacted part of the Minutes is privileged from disclosure by reference to s 118 of the Evidence Act 2008 (Vic) (‘the Evidence Act’). The second is whether, pursuant to s 122 of the Evidence Act, the Council has acted in a way that is inconsistent with its objection to disclosure of the redacted part of the Minutes.

1. For the reasons outlined below I am satisfied that the redacted part of the Minutes are privileged from disclosure by reference to s 118 of the Evidence Act. I am not satisfied that the Council has acted in a way that is inconsistent so as to lose that privilege.

Background

1. A central issue in the case is the Council’s operative subjective intention in making the decision that led to the issuing of the Notices.

1. The plaintiffs contend that the Council’s improper purpose can be inferred from the terms of the Minutes. In particular, the plaintiffs allege the Minutes demonstrate Council’s purpose in pursuing the acquisition was to:

(a)   ‘reserve or quarantine the land’ by means of the expedited statutory process that applies to acquisitions of this type prior to implementing the normal statutory process for reserving land for acquisition; and/or

(b)  predetermine the outcome of the proposed structure planning process that it proposed to be undertaken in respect of the land.

1. The parties agree that the Minutes are relevant to the issues in the proceeding. The plaintiffs submit that the whole of the Minutes address the Council’s ‘rationale underpinning the contested acquisition’. They emphasise that the redacted part of the Minutes falls within the section headed ‘Urgent need to set aside a section of the site as a carriageway easement’ in which the Council Officer states that urgency arises ‘because the landowners could potentially make application for planning permits over the part of the site identified as a potential future road’.      

1. On 2 December 2019, the Council filed written submissions contending that there is no basis to conclude that the Council acted for a forbidden or foreign purpose in serving the Notices. The plaintiffs submit that the Council’s submissions are inconsistent with its continued objection to disclosure of the unredacted Minutes. In particular the plaintiffs point to paragraph 31 of the submissions, which is in the following terms:

Contrary to the plaintiffs’ submissions, there is no basis to conclude that the Council acted for a forbidden or foreign purpose in serving the Notice of Intention or the Notice of Acquisition. Indeed, there is no direct evidence as to the Council’s (i.e., the councillors’) purpose in acquiring the Interest, and the best evidence is consistent with the Council doing so to facilitate “access” from Ballan Road to the Wyndham Vale railway station.²⁷ There is also no good evidence that the councillors’ “wrongly” thought that by acquiring the easement the Council was thereby acquiring a “public road” within the meaning of the RMA, and the best evidence is consistent with the Council not so misunderstanding.²⁸ 

1. The footnotes in the above passage both refer to Exhibit KG-14 to the affidavit of Kelly Grigsby, affirmed on 2 December 2019, being the partially redacted Minutes of the Council meeting on 8 November 2017.

1. The plaintiffs argue that it is inconsistent with maintaining privilege over the redacted portion of the Minutes ‘to say, on the one hand, that there is no “direct” evidence of the councillors [sic] opinions, but then to deploy the record of the Council Officers recommendations to the council as the “best evidence” of what the councillors [sic] purpose was’. Further, the plaintiffs argue that the defendant’s inconsistency lies in putting into evidence only part of what the Council Officers said and claiming that the select part of what the Council Officers said is the “best evidence” of the councillors’ purpose.

1. In response, the Council says that its submissions did not advance a positive case that the report of the Council Officer, in which the redacted text appears, evidences the Council’s purpose in making the decision. Indeed, the Council says that it submitted that ‘documents prepared by other persons are not usually evidence of what was in fact the councillors’ purpose’ and that in this case ‘there is no direct evidence as to the Council’s purpose in acquiring the interest’.

Is the redacted part of the Minutes privileged?

1. Section 118 of the Evidence Act provides that:

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of –

(a)a confidential communication made between the client and a lawyer; or

(b)a confidential communication made between 2 or more lawyers acting for the client; or

(c)the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person –

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

1. The Council bears the onus of demonstrating that the redacted part of the Minutes is privileged. The Council relies on the evidence of Mr Ramsay, a Principal of the firm Russell Kennedy Lawyers. He deposes that, on 3 July 2017 and 15 September 2017, a lawyer in the firm provided confidential legal advice to a Council Officer in response to requests for legal advice. He further deposes that the text redacted from the Minutes of the Council meeting on 8 November 2017, exhibited to Ms Grigsby’s affidavit of 2 December 2019, ‘sets out or summarises aspects of the confidential legal advice provided by a lawyer in the firm … or refers to particular matters about which legal advice was provided.’ In Mr Ramsay’s view, ‘the disclosure of the redacted text in the Minutes would therefore result in the disclosure of confidential communications made between the Council and an independent lawyer for the dominant purpose of the lawyer providing legal advice to Council.’

1. On the basis of this unchallenged evidence, I am satisfied that the redacted part of the Minutes is privileged by virtue of s 118 of the Evidence Act.

Has the Council acted in a way inconsistent with its objection to disclosure of the redacted part of the Minute?

1. Section 122 of the Evidence Act relates to the loss of client legal privilege. The relevant subsection for the determination of the plaintiffs’ application is s 122(2). It is in the following terms:

Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119, or 120.

1. Subsection (5) is not relevant to consideration of the current application.

1. There is no settled list of the kinds of actions which, by their very nature, give rise to implied waiver:  each case must depend upon its own facts and circumstances and drawing generalisations from other cases may be dangerous.[1] The governing principle is whether the privilege holder directly or indirectly put the contents of an otherwise privileged communication in issue in the litigation, either in making a claim or by way of defence.[2] Put another way, an implied waiver will arise when 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.[3]

   [1]Viterra Malt Pty Ltd v Cargill Australia Ltd (2018) 58 VR 333, 344 [44].

   [2]Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341, 359 [61].

   [3]DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499, 519 [58].

1. Mere relevance of the privileged communication to the pleaded issue is insufficient for a waiver.[4] Mere denial by a party of an allegation as to the party’s state of mind may not be enough to waive privilege in respect of any legal advice the party had received in connection with the relevant transaction.[5]

   [4]Viterra Malt Pty Ltd v Cargill Australia Ltd (2008) 58 VR 333, 351 [75].

   [5]Ibid 344 [46].

1. In my view, the reference by footnotes to the Minutes of the meeting in the relevant part of the Council’s submissions is consistent with the Council’s assertions that there is no direct evidence of the Council’s purpose in acquiring the interest. Read fairly, the Council’s references to the ‘best evidence’ cannot be understood as the Council either directly or indirectly seeking to rely on the contents of the redacted part of the Minutes or referring to them in any way that necessarily lays that part of the Minutes open to scrutiny.

1. Nothing in the Council’s submissions make it inconsistent to withhold the redacted part of the Minutes. Accordingly, the plaintiffs’ summons must be dismissed.