Shoal Bay Developments Pty Ltd & Anor v Port Stephens Council

[2015] NSWLEC 1557

Land and Environment Court

New South Wales

Medium Neutral Citation:	Shoal Bay Developments Pty Ltd & Anor v Port Stephens Council [2015] NSWLEC 1557
Hearing dates:	1 April 2015
Date of orders:	01 April 2015
Decision date:	01 April 2015
Jurisdiction:	Class 1
Before:	Registrar Gray
Decision:	Directions made
Catchwords:	Notice to Produce – Privilege claimed – Application for access to inspect – Legal Professional Privilege – Relevance
Legislation Cited:	Civil Procedure Act 2005
Cases Cited:	Shoal Bay Developments Pty Ltd v Port Stephens Council [2015] NSWLEC 1556 Waind v Hill & National Employers’ Mutual [1978] NSWLR 372
Category:	Consequential orders (other than Costs)
Parties:	Shoal Bay Developments Pty Ltd (First Applicant) Snoogal Pty Ltd (Second Applicant) Port Stephens Council (Respondent)
Representation:	Counsel: Mr M F Fozzard (Applicants) Solicitors: Local Government Legal (Respondent)
File Number(s):	10732 of 2014
Publication restriction:	No

JUDGMENT

1. REGISTRAR: These proceedings have been before the Court on a number of occasions concerning notices to produce issued to the Council and a subpoena issued to GHD Pty Ltd. Whilst no application has been made concerning those processes, there has been some dispute between the parties in relation to claims for privilege over the documents.

2. Whilst the issue was first raised before the Acting Registrar on 5 December 2014, the matter came before me on 29 January 2015, on which date the applicants indicated that they would be seeking access to the material produced by the respondent over which the respondent had claimed privilege.

3. On 5 February 2015 I then heard an argument regarding the claim for privilege over that material.

4. On 6 February 2015 I delivered a judgment upholding privilege over some of the documents but granting access to the remainder of those documents.

5. Around that time, GHD Pty Ltd produced documents in response to a subpoena issued to it.  Privilege was claimed over that material on behalf of the respondent.  That material included a box of documents and a USB stick containing 1700 documents.  Access to those documents was granted to the respondent to determine whether a claim for privilege was maintained in relation to all of the documents.

6. A Notice of Motion seeking a review of my decision concerning access to the documents produced by the respondent was filed on 10 February and heard and determined on 11 March 2015.  That decision, which did not disturb my decision, together with my decision of 6 February, could then form the basis for the respondent's decision as to whether to maintain its claim for privilege over the material produced by GHD Pty Ltd.

7. Subsequent to the decision of Pain J on 11 March, Mr Pickup, the solicitor for the respondent, filed an affidavit on 25 March that outlines (in Annexure B) the documents over which the respondent maintains its claim for privilege.

8. The applicant now seeks access to each of the documents that is contained in the list at Annexure B.  That is some 159 documents.

9. I indicated that in order to consider such an application, the applicant would need to outline the relevance of those documents and also outline which documents they say that a claim for privilege cannot be maintained.  I offered to give the applicant the opportunity to do so by way of evidence and/or submissions.  The applicant, through its counsel, submits that they cannot establish these things without looking at the content of the documents.

10. I cannot accept that submission. In [11] of Shoal Bay Developments Pty Ltd v Port Stephens Council [2015] NSWLEC 1556, I outlined the case law in relation to the steps that are before the Court in relation to a subpoena or a notice to produce.

11. Relevantly, I referred to the decision of the Court of Appeal in Waind v Hill & National Employers’ Mutual [1978] NSWLR 372 at 381:

Indeed on a correct view there are three steps.  The first is obeying the subpoena, by the witness bringing the documents to the Court and handing them to the judge.  This step involves the determination of any objections by the witness to the subpoena, or to the production of the documents to the Court pursuant to the subpoena.  The second step is the decision of the judge concerning preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents.  The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the Court by cross-examination or otherwise.

12. The matter before me today again concerns the second step.  In relation to that second step, the Court of Appeal found that in determining whether inspection should be permitted, the apparent relevance of the documents must be established.  In determining whether apparent relevance is established, the argument advanced in support of the application for access must be done absent the content of the documents themselves.

13. In relation to the documents to which access is sought today, the applicant has not sought to outline that apparent relevance.

14. Once the apparent relevance of the documents has been established, a person seeking access to material over which there is a claim for privilege must then outline its objection to the claim for privilege.  In some circumstances this may include addressing each document individually or, in other circumstances, it may involve sorting the documents into categories.  Neither has been done in these proceedings.

15. In considering the objection to the claim for privilege it is then open to the Court to inspect the documents produced.

16. The applicant today is essentially seeking that I skip to the last part of this process without having before me the matters to satisfy the issues of relevance and the nature of the objection to the claim for privilege.  That is, in my view, not an acceptable course.

17. I am of the firm view that it is an abuse of process to come to the Court seeking the Court to look at every single one of 159 documents to determine if a claim for privilege is made out in circumstances where, firstly, there is no evidence that the documents to which access is sought are relevant to the issues in these proceedings, and, secondly, where the person seeking access has not actually made out any argument in relation to the specific documents and why privilege is disputed in relation to those documents.

18. Many of the documents to which access is sought are e-mails between GHD Pty Ltd and the solicitors for the Council.  There is no evidence before me today in relation to how those documents might be relevant to the matters for the Court's consideration in these proceedings; nor is there any outline by the applicant of the basis of their objection to the claim for privilege.

19. Both the parties and the Court are under an obligation pursuant to s 56 of the Civil Procedure Act to facilitate the just, quick and cheap resolution of the real issues in a proceedings.

20. An application for access to the full suite of documents over which the respondent claims privilege without even establishing the relevance of those documents or outlining each of the documents in relation to which the privilege claim is disputed and requiring, therefore, the Court to inspect each of those 159 documents absent any argument in that regard does not fulfil this obligation.

21. Accordingly, there are two courses that are open to me in moving the question of access forward.  The proper process for making application for access and raising these matters for consideration is by way of notice of motion.  If the applicants intend to put on a formal application with evidence for access to the material, then that can be dealt with in due course.  If the applicant does not intend to do so, then I am of the view that I ought to formally dismiss the application for access to the material.

22. I will make directions for the applicant to consider whether to pursue that course.

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Decision last updated: 08 January 2016