Shoal Bay Developments Pty Ltd v Port Stephens Council - [2018] NSWSC 286

Supreme Court

New South Wales

Medium Neutral Citation: Shoal Bay Developments Pty Ltd v Port Stephens Council [2018] NSWSC 286
Hearing dates: 27 February 2018
Date of orders: 27 February 2018
Decision date: 01 March 2018
Jurisdiction: Equity
Before: Parker J
Decision:
Claim for privilege over documents produced on subpoena rejected, and leave to inspect the documents granted.

Catchwords:
EVIDENCE – Privileges – claim for legal professional privilege – claim for litigation privilege – preliminary proceedings – whether statutory provision applies to preliminary proceedings – common law definition of litigation privilege applies in preliminary proceedings

EVIDENCE – Privileges – Litigation privilege – whether expert report privileged – application of “dominant purpose” test – scope of report too wide – no direct evidence on instructions to expert – direct evidence apparently available – whether claim of privilege should be upheld as matter of inference when direct evidence available – privilege claim over report dismissed

EVIDENCE – Privileges – litigation privilege – where claimant asks court to inspect documents over which it claims privilege – whether appropriate for court to exercise power to inspect documents – where other party not in a position to inspect and make submissions on documents – risk of “gross unfairness” – whether inspection detracts from requirement that claimant prove privilege claim with admissible evidence – not appropriate for court to inspect documents where inspection detracts from requirement
CIVIL PROCEDURE – Subpoenas – documents produced on subpoena – legal professional privilege – litigation privilege – whether documents preceding issue of expert report privileged – whether inference that communications directly relate to proceedings available – whether documents advance case of claimant – whether documents produced for purpose related to expert report – insufficient evidence that documents advance case – insufficient evidence documents prepared for purpose related to expert report – inference communications directly relate to proceedings not available – privilege claim over documents dismissed
Legislation Cited: Evidence Act 1995 (NSW), ss 119, 131A(1)
Cases Cited: Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002
Australian Securities and Investments Commission v Southcorp Ltd (2003) 46 ACSR 438
Hancock v Rinehart (Privilege) [2016] NSWSC 12
Rinehart v Rinehart [2016] NSWCA 58
Category: Procedural and other rulings
Parties: Shoal Bay Developments Pty Ltd (Plaintiff)
Port Stephens Council (Defendant)
Representation:
Counsel:
A Edington (Plaintiff)
E Bathurst (Defendant)
Solicitors:
David Vitnell (Plaintiff)
Local Government Legal (Defendant)

File Number(s): 2015/349406
Publication restriction: Nil

JUDGMENT – EX TEMPORE

Revised and issued 7 March 2018

In these proceedings, the plaintiffs are the proprietors of land which forms part of what is known as the Lagoons Estate at Port Stephens. The plaintiffs complain that their land is subject to flooding emanating from an adjoining development known as the Seabreeze Estate (of which the Lagoons Estate was originally part) and they claim that the defendant, the Port Stephens Council, is responsible in whole or part for that flooding.
In the proceedings, the plaintiffs claim that works done by the Council from the 1970s onwards on the Seabreeze Estate…

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: [2018] NSWSC 286
Decision Date: 01 March 2018

CaseChat Overview and Summary

In the case of Shoal Bay Developments Pty Ltd v Port Stephens Council, the dispute involved the admissibility of certain documents in court proceedings. The matter was heard in the Supreme Court of New South Wales. The primary issue was whether certain documents were protected by legal professional privilege and litigation privilege, and whether the court should exercise its power to inspect documents claimed to be privileged when the opposing party was not given an opportunity to inspect and make submissions.

The court examined whether statutory provisions applied to preliminary proceedings and whether the common law definition of litigation privilege was applicable. The court determined that the common law definition of litigation privilege was indeed applicable in preliminary proceedings. Further, the court assessed whether an expert report was privileged, applying the "dominant purpose" test. The court found that the scope of the report was too wide and no direct evidence was presented regarding the instructions given to the expert. Although direct evidence was apparently available, the court held that the claimant should not be allowed to rely on an inference when direct evidence could be produced.

Additionally, the court considered whether it was appropriate to inspect documents claimed to be privileged when the opposing party was not given the opportunity to inspect and submit on the documents. The court found that it was not appropriate to inspect such documents as it would result in "gross unfairness" and detract from the requirement that the claimant prove their privilege claim with admissible evidence.

Ultimately, the court dismissed the claims of privilege over the expert report and the documents preceding the issue of the expert report. The court found that there was insufficient evidence to support that the documents advanced the claimant's case or were prepared for a purpose related to the expert report. The inference that the communications directly related to the proceedings was not available, and the privilege claims over the documents were dismissed.

Orders