Multistar Pty Limited v The Minister for Urban Affairs and Planning

[2000] NSWLEC 231

Land and Environment Court

of New South Wales

CITATION:

Multistar Pty Limited v The Minister for Urban Affairs & Planning & Anor [2000] NSWLEC 231

PARTIES:

APPLICANT:
Multistar Pty Limited
ACN 072 013 275

FIRST RESPONDENT:
The Minister for Urban Affairs & Planning

SECOND RESPONDENT:
Sydney City Council

FILE NUMBER(S):

40184 of 1999

CORAM:

Lloyd J

KEY ISSUES:

Evidence :- client legal privilege - waiver

LEGISLATION CITED:

Central Sydney Local Environmental Plan 1996 (Amendment No. 9) - Public Car Parking
Environmental Planning and Assessment Act 1979 s 69
Evidence Act 1995, s 55, s 56, s 118 and 122(2)

CASES CITED:

Ampolex v Perpetual Trustee Company (Canberra) Limited, HCA, 22 May 1996, unreported;
Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475;
Australian Unity Health Limited v Private Health Insurance Administration Council [1999] FCA 1770, unreported;
Benecke v National Australia Bank, Court of Appeal, 22 April 1993, unreported;
Edwards v Bairstow (1956) AC 14

DATES OF HEARING:

09/10/2000, 10/10/2000 and 11/10/2000

EX TEMPORE
JUDGMENT DATE :

10/09/2000

LEGAL REPRESENTATIVES:

APPLICANT:
Mr N A Hemmings QC (Solicitor)
SOLICITORS:
Allen Allen & Hemsley

FIRST RESPONDENT:
Mr M J Leeming (Barrister)
SOLICITORS:
Christine Hanson

SECOND RESPONDENT:
Mr S D Rares SC
SOLICITORS:
Blake Dawson & Waldron

JUDGMENT:

5

IN THE LAND AND Matter No: 40184 of 1999
ENVIRONMENT COURT Coram: Lloyd J
OF NEW SOUTH WALES Decision date: 9 October 2000


Multistar Pty Limited
ACN 072 013 275

Applicant

v

The Minister for Urban Affairs & Planning

First Respondent

Sydney City Council

Second Respondent

EXTEMPORE JUDGMENT ON NOTICE TO PRODUCE


HIS HONOUR:
1. The applicant calls upon a notice to produce addressed to the second respondent Sydney City Council for the production of a document being legal advice furnished to the council and referred to in the following documents: in a report by Mr David Snoswell, specialist research planner, to the Central Sydney Planning Committee dated 20 April 1999 and tabled at a meeting of the committee on 22 April 1999; in a report by Mr David Snoswell to the Lord Mayor dated 24 April 1999; in a report by Mr David Snoswell to the Central Sydney Planning Committee dated 9 March 1999 and which I am prepared to infer was also tabled at a meeting of that committee; and finally in annexures to a report furnished to the Minister pursuant to section 69 of the Environmental Planning and Assessment Act (the EP&A Act).

2. Meetings of the Central Sydney Planning Committee are open to the public and reports tabled at such meetings are available to the public. The report dated 20 April 1999 states:

Existing use issues. The proposed clauses are contrary to the existing use provisions of the EP & A Act. The amendments will have the effect of extinguishing existing use rights for existing car parks and the ability for such uses to be intensified and extended in accordance with the existing rights legislation. Council’s legal advice as to whether the proposed amendments are ultra vires should be circulated. Comment: Council’s legal advice does not support this position. Council’s legal advice is confidential and so has not been circulated to the public.

3. The report dated 24 April 1999 to which I have referred contains the same statement. The report dated 9 March 1999 to which I have referred states:

Issue. This clause, clause 48A, is clearly beyond council’s powers as the provisions in the EP& A Act 1979 and the regulations thereto specifically provide that a development application for a site having existing use rights can be intensified and extended through a further development application. The clause derogates from the existing use provisions of the EP& A Act 1979 and is clearly contrary to section 24 of the Act. The clause is clearly contrary to the existing use provisions of the EP & A Act 1979. Comment: Council’s legal advice does not support this position.

4. The council objects to the production of the legal advice referred to in these reports claiming client legal privilege under section 118 of the Evidence Act 1995. The council also asserts that the legal advice does not relate to any issue in the proceedings and so it is not a document which can be the subject of a notice to produce.

5. The applicant contends that the privilege has been lost, the substance of the advice having been knowingly and voluntarily disclosed in public documents: Evidence Act 1995, s 122(2). The applicant also contends that the advice is relevant to its assertion in these proceedings that clause 48A of the Central Sydney Local Environmental Plan 1996 (Amendment No. 9) - Public Car Parking, is void.

6. I should say at once that the reference to the legal advice contained in the annexures to the report furnished to the Minister are excluded from the waiver provision of the Evidence Act. Section 122 subs (2)(a) provides that the waiver provisions do not apply where the disclosure was made under compulsion of law or to a Minister, inter alia . Neither in my opinion was there any waiver by the reference to the legal advice in the report of 24 April 1999 to the Lord Mayor. That was an internal report which does not appear to have been publicly available.

7. The mere reference to the existence of legal advice does not amount to waiver of its content. Where however there has been a disclosure of the substance of that advice then the authorities suggest that the privilege has been waived. I refer in particular to Benecke v National Australia Bank, Court of Appeal, 22 April 1993, unreported; Ampolex v Perpetual Trustee Company (Canberra) Limited, HCA, 22 May 1996, unreported, per Kirby J; and Australian Unity Health Limited v Private Health Insurance Administration Council [1999] FCA 1770.

8. In Benecke reference is made to Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475, in which reference was made to the passage in Wigmore, Evidence in Trials at Common Law (1961) vol 8, para 2327 at 636 to this effect:

When his conduct touches a certain point of disclosure fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed after disclosing so much as he pleases to withhold the remainder.

9. In the present case the council has publicly disclosed the substance of the legal advice in the two remaining reports; that is to say, the advice referred to in the two reports to the Central Sydney Planning Committee. In my opinion the council can no longer claim privilege in respect of that legal advice, that is to say, the advice referred to in the two reports to the Committee.

10. There remains however the question of whether the legal advice relates to any issue in the proceedings. The issue in question is the validity of clause 48A of the Central Sydney Local Environmental Plan 1996 (Amendment No.9) - Public Car Parking. It is said that no question of the state of mind of the council in its determination to adopt clause 48A is raised as an issue, so that the legal advice furnished to the council is irrelevant.

11. Mr N A Hemmings QC, in opening the case for the applicant, referred to an assertion to be made by the applicant that the adoption of clause 48A by the council was an unreasonable exercise of power within the principles explained in Edwards v Bairstow (1956) AC 14. Mr S D Rares SC, appearing for the council, submits that no such allegation is made in the applicant’s points of claim. It seems to me however that such a claim may arguably be raised to support the applicant’s claims in paragraphs 9(b) and (c) of the points of claim, namely that “ (b) Clause 48A is an unlawful device to deny statutory rights rested in Division 10 of Part 4 of the EP&A Act for the continuation of a use for a lawful purpose in an altered existing building” and “ (c) Clause 48A is a provision designed to avoid the rights vested by the incorporation of the incorporated provisions into the LEP 1996 pursuant to s 108 of the EP&A Act ”.

12. I therefore find in favour of the applicant in the argument on the notice to produce, both on the ground of waiver of client legal privilege pursuant to s 118(2) of the Evidence Act and on the ground of relevance pursuant to sections 55 and 56 of the Evidence Act.

I