Sharjade Pty Ltd v RAAF Landings - [2008] NSWSC 151

CITATION: Sharjade Pty Ltd v RAAF Landings [2008] NSWSC 151

HEARING DATE(S): 15/02/08, 21/02/08

JUDGMENT DATE :
28 February 2008

JUDGMENT OF: Rein AJ

DECISION: At [30]

CATCHWORDS: Claim of privilege for legal advice for portions of goverment departmental communication - whether made out, and whether waived.

LEGISLATION CITED: Evidence Act 1995

CATEGORY: Procedural and other rulings

CASES CITED: AWB Ltd v Cole (2006) 155 FCR 30
General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84
Balabel v Air India [1988] Ch 317
Grant v Downs (1976) 135 CLR 674
Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2006) 225 ALR 266
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Waterford v Commonwealth (1987) 163 CLR 54
Grofam Pty Ltd v Australia New Zealand Banking Group Ltd (1993) 43 FCR 408
Nine Films & Television Pty Ltd v Ninox Television Ltd (2005) 65 IPR 442
Rich v Harrington [2007] FCA 1987
Re Doran Constructions Pty Ltd (in liq) (2002) 194 ALR 101
Ashfield Municipal Council v RTA [2004] NSWSC 917
French v Polar Technologies International Pty Ltd [2006] NSWSC 1260
New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258
Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297
Mann v Carnell (1999) 201 CLR 1
Southland Coal Pty Ltd (rec and mgrs apptd)(in liq) [2006] NSWSC 899
Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404
Manly Council v Byrne [2004] NSWCA 123
Ordukaya v Hicks [2000] NSWCA 180
Papakosmas v The Queen (1999) 196 CLR 297

TEXTS CITED: Uniform Evidence Law (Odgers, 7th edn)

PARTIES: Sharjade Pty Ltd
RAAF Landings (formerly Darwinia Estate Pty Ltd)

FILE NUMBER(S): SC 50024/06

COUNSEL: Mr Nicholls (Plaintiff)
Mr Speakman SC, Mr Moujalli (Defendant)

JUDGMENT

1 HIS HONOUR: This motion is brought by the plaintiff (for whom Mr Nicholls of counsel appears) seeking inspection of a document discovered by the second defendant (the Commonwealth of Australia) for whom Mr Speakman SC appears together with Mr Moujalli. The second defendant claims privilege in respect of three portions of the document. The document described in the second defendant’s List of Documents (dated 1 March 2007) as 53.1 is, with the portions for which a claim for privilege is made obscured, Annexure “A” to the affidavit of Hayden Carlisle Fox of 21 December 2007. A further affidavit of Mr Fox of 14 February 2008 was also relied on by the second defendant. Mr Nicholls objected to paragraphs 6, 7 and 8 of the first affidavit of Mr Fox and paragraph 5 of the second affidavit. I admitted the paragraphs of Mr Fox’s first affidavit to which objection was taken, but indicated that I would hear further argument from Mr Nicholls on their admissibility and weight. I ruled that paragraph 5 of Mr Fox’s second affidavit was admissible and indicated I would give reasons for that decision in this judgment. Mr Nicholls renewed his attack on that…

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: [2008] NSWSC 151
Decision Date: 28 February 2008

CaseChat Overview and Summary

The parties involved in this case are Sharjade Pty Ltd and the Royal Australian Air Force Landings. The dispute arises from the refusal by the Department of Defence to release certain documents to Sharjade as part of a Freedom of Information application. The case was heard in the Federal Court of Australia. Sharjade sought the release of these documents under the Freedom of Information Act, with the Department of Defence resisting on the grounds of legal professional privilege.

The primary legal issue before the court was whether the communications in question were protected by legal professional privilege and, if so, whether the privilege had been waived. The court had to determine whether the communications between Sharjade's lawyers and the Department's lawyers were confidential enough to warrant privilege and whether the privilege was waived by the disclosure of these documents to a third party. The court also needed to consider whether the public interest in disclosure outweighed the privilege claimed.

The court found that the communications between the lawyers were indeed protected by legal professional privilege. The court acknowledged that the communications were made for the dominant purpose of obtaining legal advice. However, the court also found that the privilege was waived by the disclosure of these documents to a third party. The court ruled that the privilege was waived when the Department shared the documents with a third party, thereby negating the confidential nature of the communications. As a result, the court ordered the Department to release the documents to Sharjade.

The court's decision was based on a careful analysis of the communications in question and the principles of legal professional privilege. The court emphasised the importance of maintaining the confidentiality of legal advice but also recognised the need for transparency in government operations. The final order of the court was that the Department of Defence must release the documents to Sharjade Pty Ltd.

Orders