Manor Central Nominees Pty Ltd v Wyndham City Council (No 2)
[2020] VSC 271
•18 May 2020
| 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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JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 18 May 2020 |
CASE MAY BE CITED AS: | Manor Central Nominees Pty Ltd & Anor v Wyndham City Council (No 2) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 271 |
JUDGMENT APPEALED FROM: | [2020] VSC 151 (Irving JR) |
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EVIDENCE — Client legal privilege —Waiver — Whether reference in a written opening to document with redactions based on a claim of legal advice privilege is inconsistent with claim — Whether privileged communications can be fairly severed from document — Evidence Act2008 (Vic) ss 118, 122(2).
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APPEARANCES: | Counsel | Solicitors |
| For the First and Second Plaintiff | Appeal determined on the papers. | |
| For the Defendant | ||
HIS HONOUR:
Introduction
The plaintiffs sought orders requiring the defendant, Wyndham City Council (Council), to make particular discovery of an unredacted version of minutes of a meeting of the Council held on 8 November 2017. The application, determined by a judicial registrar on the papers, was dismissed.[1] The plaintiffs appealed that determination.
[1]Manor Central Nominees Pty Ltd & Anor v Wyndham City Council [2020] VSC 151.
The second plaintiff is the registered proprietor of land forming the Manor Lakes Town Centre (MLTC), a large development project in Wyndham, Victoria. It is anticipated that the first plaintiff will shortly become the registered proprietor of that land.
The plaintiffs seek judicial review of two decisions of the Council made in respect of the MLTC, being:
(a) to serve on the second plaintiff a notice of intention to acquire certain land, described as a ‘carriageway easement’, under s 6 of the Land Acquisition and Compensation Act 1986 (Vic) (LAC Act), dated 26 February 2018; and
(b) to publish in the Government Gazette on 22 November 2018 a notice of acquisition in respect of the land, pursuant to s 19 of the LAC Act,
(Decisions).
The plaintiffs allege that:
(a) between June 2016 and November 2018, the Council indicated it was necessary for a public road to be constructed through the centre of the MLTC, in order to link a road to a nearby railway station. This position was resisted by the plaintiffs;
(b) the Decisions have been made to acquire the land for the purposes of constructing the public road;
(c) the Council acted for an ulterior or improper purpose in making the Decisions. Specifically, it improperly used its powers under the LAC Act to acquire the land to prevent the plaintiffs from developing or applying to develop it, pending the amendment of the relevant planning scheme to reserve the land for the creation of a public road; and
(d) the Decisions are therefore inconsistent with the acquisition powers afforded to the Council by s 187 of the LAC Act, are affected by jurisdictional error, and ought be quashed.
The proceeding was fixed for trial on 2 April 2020, which date was vacated.
On 2 December 2019, the Council filed an affidavit sworn by its Chief Executive Officer, which exhibited a redacted version of confidential minutes of a meeting of the Council held on 8 November 2017.
The minutes contained an officer’s report for a confidential agenda item considered by councillors at the meeting, described as ‘Manor Lakes Activity Centre – Acquisition of easement and planning scheme amendment’. The minutes are largely revealed, save for a redaction falling under the sub-heading ‘Urgent need to set aside a section of the site as a carriageway easement’.
The document is relevant. The subjective intention of the Council in making the Decisions is a critical issue in the proceeding. The plaintiffs submit, and the Council concedes, that the minutes are relevant to that issue. However, the Council claims that the redaction is privileged from disclosure, pursuant to s 118 of the Evidence Act 2008 (Vic).
The plaintiffs raised two issues. The Council has not demonstrated that the redaction is privileged, and, if it is, the Council has waived privilege by relying on the minutes in its written opening submissions.
An appeal from a determination of a judicial registrar is conducted by way of a hearing de novo,[2] and it is unnecessary for the plaintiffs to demonstrate any error of law in the determination on appeal.
[2]Supreme Court (General Civil Procedure) Rules 2015 r 84.05(4) (Rules).
Following the filing of the notice of appeal, I directed that:
(a) an unredacted version of the minutes be provided to the court on a confidential basis; and
(b) subject to any objection from the parties, the appeal would otherwise be dealt with on the papers, being those that were before the judicial registrar, the unredacted minutes and any supplementary submissions filed by the parties.
The parties took no objection to this procedure, and have each filed supplementary submissions, and the Council has confidentially provided me with a copy of the unredacted minutes. Otherwise, the appeal had been determined on the same material as was before the judicial registrar.
For the reasons that follow, the judicial registrar was right to dismiss the application.
Is the redaction privileged?
Section 118 of the Evidence Act relevantly provides that evidence shall not be adduced if it would disclose the contents of a confidential communication, between a lawyer and a client, for the dominant purpose of the lawyer providing legal advice to the client.
The principles relating to the operation of the privilege afforded by s 118 are well traversed. It is sufficient for this application to note that:
(a) the onus on establishing the privilege rests with the party that claims it, and will only be discharged if the party establishes facts sufficient to persuade the court that, on the balance of probabilities, the privilege is properly claimed;[3]
[3]Powercor Australia Ltd v Perry (2011) 33 VR 548, 557 [42]; Evidence Act 2008 (Vic) s 142.
(b) that onus can be discharged by adducing evidence as to the circumstances and context in which the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, authored the document, or procured its creation;[4]
(c) privilege applies to communications between a lawyer and client, not documents. Whether a copy of that communication is also protected by privilege depends on whether it was communicated for a privileged purpose;[5] and
(d) the court may exercise its discretion to inspect any document asserted to be privileged to test and satisfy itself of that claim,[6] and the court ‘should not be hesitant’ to exercise that discretion where appropriate.[7]
[4]AWB v Cole (No 5) (2006) 155 FCR 30, 44–5 [44].
[5]Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.
[6]Evidence Act 2008 (Vic) s 133; Rules r 29.13; Hodgson v Amcor Ltd (No 2) [2011] VSC 204, [24].
[7]Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49, 70.
David Ramsay of Russell Kennedy, the Council’s solicitor, stated by affidavit:
(a) in July and September 2017, Russell Kennedy provided confidential letters of legal advice in response to requests from the Council; and
(b) the redaction is to part of the minutes that set out or summarised aspects of that advice, or referred to particular matters about which the advice was provided.
The plaintiffs did not challenge this evidence.
The Council submitted that, as the judicial registrar concluded, the court should be comfortably satisfied from this evidence that disclosing the redaction would result in the disclosure of privileged communications.
The plaintiffs submitted that the court ought to have inspected the unredacted version of the minutes. While I am satisfied there was no error in the judicial registrar’s approach, having inspected the document, I find that the redaction is limited to a part of the minutes that referred to, and apparently summarised, legal advice received by the Council. The letters of advice identified in Mr Ramsay’s affidavit are clearly referenced in the redaction. While those letters are not in evidence, the redaction identified issues that one would ordinary expect to be contained in a letter of advice on the issue that was before the Council. Inspection confirmed that it was appropriate to accept, as the judicial registrar did, the unchallenged evidence of Mr Ramsay.
The Council has discharged its onus to establish its claim of legal advice privilege in respect of the redacted part of the minutes. Absent waiver, the redaction is protected from disclosure pursuant to s 118 of the Evidence Act.
Has there been a loss of privilege in respect of the redaction?
The plaintiffs submitted that if I found the redaction was privileged, the Council had acted in a manner inconsistent with that privilege, and it should be compelled to disclose the minutes in an unredacted form.
Section 122(2) of the Evidence Act relevantly provides that:
… [T]his 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.
The basis for the plaintiffs’ claim of waiver rests in the following paragraph from the Council’s written outline of submissions for trial, which included a footnote reference to the minutes:
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. 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. [emphasis added]
The plaintiffs submitted that:
(a) while the minutes do not record the reasoning by councillors in making the Decisions, they do refer to the views of council officers, who recommended the resolution ultimately adopted by the Council. The purpose of the Council and, specifically, councillors, can be inferred from the matters recorded in the minutes, including the views of council officers;
(b) the Council seeks to put the minutes into evidence to rebut the plaintiffs’ argument that it acted for an improper purpose; and
(c) it would be inconsistent in maintaining privilege over the redaction to say that there is no direct evidence of the Council’s purpose in making the Decisions, but then assert that the minutes, in a redacted and therefore incomplete form, offer the best evidence of any purpose.
The Council submitted that it has not sought to advance a ‘positive case’ in its submissions that the report of council officers is evidence of the Council’s purpose,[8] and that such a submission would be contrary to authority.[9] It does not put its case in a way that expressly or impliedly makes an assertion about the contents of the redaction.[10] Rather, properly understanding its opening submissions, the Council will submit at the trial that the best evidence, including the minutes, is consistent with the Council having acted for a proper purpose. This distinction was fatal to the suggestion that it had acted inconsistently by referring to the minutes in its submissions. It also contended that it was not inconsistent to sever privileged communication included in a document and to rely on that document for its non-privileged content.
[8]C.f. DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499, 529–30 [116].
[9]Johnson v Moyne Shire Council [2012] VSC 393, [44]—[45].
[10]C.f. Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341, 356 [52].
The plaintiffs contended that the Council made an assertion about the contents of a privileged communication for the purpose of substantiating its defence, in a manner described by the Full Court of the Federal Court of Australia in Commissioner of Taxation v Rio Tinto Ltd:
[W]here issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication.[11]
[11](2006) 151 FCR 341, 356 [52].
The plaintiffs suggested that there had been issue waiver by the Council ‘by its conduct of the trial’, citing Viterra Malt Pty Ltd v Cargill Australia Ltd.[12] The issue before the Court of Appeal was whether there had been waiver by pleadings, and the court did not consider this broader question.[13]
[12](2018) 58 VR 333 (Viterra).
[13]Ibid 354 [84].
However, the Court of Appeal relevantly identified in Viterra that:
(a) the only test to be applied to determine whether there had been an issue waiver is that found in s 122 of the Evidence Act and[14]
(b) while assistance can be derived from the common law, there is no settled list of the categories of action that give rise to an issue waiver.[15]
[14]Ibid 344 [43], 351 [72], [76].
[15]Ibid 343–4 [42], 351 [72].
The section propounds an inconsistency test. The inquiry into inconsistency in the application of the statutory test is fact driven. Language that described the outcome of the application of the test on other cases is inapt for substitution for the statutory test.
In Assistant Treasurer and Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Ltd, Flick J said about severability of privileged communications:
[W]here legal advice can be severed from the balance of a document, and where that which is disclosed meaningfully informs a reader as to those matters taken into account by a decision-maker, no implied waiver of privileged material occurs... Protection of the substantive right to keep confidential legal advice received can no more be relied upon to render confidential the entirety of a document in which such advice may appear than the disclosure of non-confidential material can be relied upon to deny the continued confidentiality of legal advice received. Neither principle nor authority dictates any contrary conclusion.
…
If it be accepted – as it must – that parts of a document may be withheld on the basis of legal professional privilege, and if the deletion of those parts does not create any ambiguity of render the balance of the document misleading, it is difficult to conclude that the continued preservation of the confidentiality of the privilege is “unfair” …[16]
[16](2009) 179 FCR 323, 343–4 [76], [79].
As I have noted, waiver is not found simply because the privileged communication is relevant to the issue . The plaintiffs submitted that the way in which the Council acted inconsistently with maintaining legal advice privilege was its statement in its written opening, set out above. Council had asserted that the minutes, in a redacted form, offer the best evidence of any purpose. Because there was no direct evidence of purpose, it was inconsistent to assert that the redacted minutes were the best evidence.
There is no inconsistency between the Council’s submission and maintaining privilege in respect of its legal advice. The redaction of the legal advice did not create any ambiguity in the minutes, or render them misleading. The minutes remain a meaningful source of evidence of the basis on which Council resolved in the manner recorded in the minutes. The Council is entitled to submit how the court ought to consider the minutes in the context of the evidence at trial, particularly on the issue of the Council’s true purpose in resolving as it did. That is all that it has done. That submission is based on what the discovered document reveals, not on what has been redacted from it. In making that submission, the Council has not acted in any way inconsistently with redacting the legal advice from the minutes. No issue of forensic unfairness arises from maintaining the redaction while presenting that submission based on the disclosed part of the minutes.
Conclusion
There being no inconsistency of the requisite kind, the plaintiffs have failed to show that there was waiver. The redacted part of the minutes is properly privileged from disclosure. The plaintiffs’ appeal is dismissed and the dismissal of the plaintiffs’ summons with costs by the order of Irving JR on 1 April 2020 is confirmed.
The usual order as to costs would be that, following the event, the plaintiffs pay the defendant’s costs of the appeal. The parties may wish to be heard in respect of costs and I direct that by 20 May 2020, the parties either file a consent minute in respect of the appropriate costs order or exchange submissions (and any further affidavit) in respect of the costs order that each contends ought, or ought not, be made. I will then deal with that issue on the papers.
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