Tweed Shire Council v Reysson Pty Ltd (No 2)

[2017] NSWLEC 159

Land and Environment Court

New South Wales

Medium Neutral Citation:	Tweed Shire Council v Reysson Pty Ltd (No 2) [2017] NSWLEC 159
Hearing dates:	22 November 2017
Date of orders:	28 November 2017
Decision date:	28 November 2017
Jurisdiction:	Class 4
Before:	Molesworth AJ
Decision:	See orders at [68]
Catchwords:	PRACTICE AND PROCEDURE – notice to produce – objection to production of documents on ground that documents privileged – whether documents prepared for the dominant purpose of lawyer providing legal advice to client
Legislation Cited:	Evidence Act 1995, s 118; Div 1 of Pt 3.10 Uniform Civil Procedure Rules 2005, rr 1.2, 1.9, 21.9, 21.10, 21.11; Div 2 of Pt 21
Cases Cited:	City of Ryde Council v Principal Healthcare Finance Pty Ltd [2017] NSWLEC 126 Environment Protection Authority v Grafil Pty Ltd [2017] NSWLEC 88 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67 Grant v Downs (1976) 135 CLR 674; [1976] HCA 63 Hancock v Rinehart [2016] NSWSC 12 Interchase Corp Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) (1999) 1 Qd R 141; [1997] QCA 450 Re Southland Coal Pty Ltd (receivers & managers appointed) (in liq) (2006) 203 FLR 1; [2006] NSWSC 899 Singapore Airlines Ltd v Sydney Airports Corporation Ltd [2004] NSWSC 380 Walker Corporation Pty Ltd v Director-General of the Department of Environment and Climate Change [2009] NSWLEC 138 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 161 LGERA 86; [2008] NSWLEC 247
Texts Cited:	Dr Ronald Desiatnik, Legal Professional Privilege in Australia (2nd ed 2005, LexisNexis Butterworths)
Category:	Procedural and other rulings
Parties:	Tweed Shire Council (Applicant) Reysson Pty Ltd ACN 001 214 446 (Respondent)
Representation:	Counsel: Ms J Walker (Applicant) Mr C Norton (Respondent)   Solicitors: Maddocks (Applicant) Woolf Associates (Respondent)
File Number(s):	2016/00235173
Publication restriction:	N/A

Judgment

A dispute arises as to whether documents subject to a notice to produce are privileged

1. In these Class 4 proceedings, Tweed Shire Council (‘the Applicant Council’) claims that Reysson Pty Ltd (‘the Respondent’) has unlawfully carried out development for the purpose of agriculture on land in circumstances where such development was either prohibited or permissible only with consent.

2. The proceedings are part heard before Moore J and are listed to resume for hearing for nine further days on 25 June 2018.

3. On 21 November 2017, the Applicant Council filed a Notice of Motion seeking the following order:

The Respondent is to produce to the Applicant documents 5-29 and 31-35 in the Schedule at Annexure A to the Affidavit of Bruce Woolf sworn 16 November 2017, and the emails dated 18 February 2015 and 24 March 2015 referred to in paragraph [3] of that affidavit.

4. Given the nature of the order sought and the implications of privilege in relation to the documents sought to be produced, it is appropriate that a judge other than the trial judge hear the motion. Hence, the motion came before me for determination.

5. The Applicant Council’s motion relates to an informal Notice to Produce (for inspection by the Applicant Council) that was served by the Applicant Council on the Respondent on 6 November 2017 pursuant to r 21.10 of the Uniform Civil Procedure Rules 2005 (‘the Procedure Rules’). The relevant part of this Notice to Produce is in the following terms:

We request the production of the following documents at the commencement of the hearing in this matter on Wednesday 8 November 2017:

All documents recording communications between the Respondent and Planners North from 1 January 2013 to 31 December 2016 relating to issues associated with the clearing or fencing of Lot 2 DP 1060215 and/or Lot 4 DP 228424, including without limitation any advice provided by Planners North in response to the request referred to in para 38 of Mr Beveridge’s affidavit dated 10 April 2017.

Please treat this request as an informal notice to produce issued in accordance with UCPR 21.10.

6. In response to this Notice to Produce, the solicitor for the Respondent – Mr Bruce Woolf – prepared a schedule of relevant documents subject to a claim of client legal privilege, which is Annexure A to his affidavit sworn on 16 November 2017 (‘the schedule’). Given that the Applicant Council’s Notice of Motion only seeks an order for the production of documents 5-29 and 31-35 in the schedule, it is only necessary to set out the rows in the schedule which detail these documents:

5.	7/1/15	Email W Beveridge to S Connelly	Client legal privilege – legal advice (s 118c)
6.	7/1/15	Email S Connelly to W Beveridge	Client legal privilege – legal advice (s 118c)
7.	7/1/15	Email W Beveridge to S Connelly	Client legal privilege – legal advice (s 118c)
8.	7/1/15	Email S Connelly to W Beveridge	Client legal privilege – legal advice (s 118c)
9.	7/1/15	Email W Beveridge to S Connelly	Client legal privilege – legal advice (s 118c)
10.	7/1/15	Email S Connelly to W Beveridge	Client legal privilege – legal advice (s 118c)
11.	7/1/15	Email S Connelly to W Beveridge	Client legal privilege – legal advice (s 118c)
12.	8/1/15	Email S Connelly to W Beveridge	Client legal privilege – legal advice (s 118c)
13.	17/2/15	Email W Beveridge to S Connelly	Client legal privilege – legal advice (s 118c)
14.	17/2/15	Email S Connelly to W Beveridge	Client legal privilege – legal advice (s 118c)
15.	19/2/15	Email S Connelly to W Beveridge	Client legal privilege – legal advice (s 118c)
16.	20/2/15	Email S Connelly to W Beveridge	Client legal privilege – legal advice (s 118c)
17.	20/2/15	Email W Beveridge to S Connelly	Client legal privilege – legal advice (s 118c)
18.	2/3/15	Email W Beveridge to C Gough, S Connelly	Client legal privilege – legal advice (s 118c)
19.	2/3/15	Email S Connelly to W Beveridge, C Gough	Client legal privilege – legal advice (s 118c)
20.	2/3/15	Email W Beveridge to C Gough, S Connelly	Client legal privilege – legal advice (s 118c)
21.	2/3/15	Email S Connelly to W Beveridge, C Gough	Client legal privilege – legal advice (s 118c)
22.	2/3/15	Email W Beveridge to C Gough, S Connelly	Client legal privilege – legal advice (s 118c)
23.	2/3/15	Email W Beveridge to S Connelly	Client legal privilege – legal advice (s 118c)
24.	24/3/15	Email W Beveridge to S Connelly	Client legal privilege – legal advice (s 118c)
25.	23/4/15	Email S Connelly to W Beveridge	Client legal privilege – legal advice (s 118c)
26.	23/3/15	Email S Connelly to W Beveridge	Client legal privilege – legal advice (s 118c)
27.	24/3/15	Email W Beveridge to S Connelly	Client legal privilege – legal advice (s 118c)
28.	24/3/15	Email W Beveridge to S Connelly	Client legal privilege – legal advice (s 118c)
29.	28/3/15	Email S Connelly to W Beveridge and C Gough	Client legal privilege – legal advice (s 118c)
31.	23/4/15	Email W Beveridge to S Connelly	Client legal privilege – legal advice (s 118c)
32.	1/5/15	Email S Connelly to W Beveridge (c.c. C. Gough)	Client legal privilege – legal advice (s 118c)
33.	15/5/15	Email W Beveridge to S Connelly	Client legal privilege – legal advice (s 118c)
34.	15/5/15	Email S Connelly to W Beveridge	Client legal privilege – legal advice (s 118c)
35.	10/7/15	Email W Beveridge to S Connelly, C Gough	Client legal privilege – legal advice (s 118c)

7. As is evident from the parts of the schedule set out above, the relevant documents subject to a claim of privilege are emails between Mr Warren Beveridge, Mr Steven Connelly and Mr Christopher Gough.

8. Mr Beveridge is the manager of the Respondent, Mr Connelly is the Respondent’s town planner, and Mr Gough (of the firm Storey & Gough) was the former solicitor for the Respondent. In addition to the documents listed above, the Applicant Council’s motion also seeks an order for production of two further emails described in Mr Woolf’s affidavit as “two additional emails, one of 18 February 2015 from W. Beveridge to S. Connelly and an email of 24 March 2015 from S. Connelly to W. Beveridge”.

9. However, documents 26 and 27 and the two additional emails described above have now been produced (the email of 18 February 2015 was tendered as Exhibit A and indicated that an appointment between Mr Beveridge, Mr Connelly and Mr Gough was made for 23 February 2015). Hence, the documents which the Applicant Council seeks production of and remain subject to a disputed claim of privilege are documents 5-25, 28, 29 and 31-35.

10. I observe, as I did during the Court hearing, that documents 26, 27 and the two additional emails (one of which became Exhibit A) are clearly uninformative and of no material relevance to the substantive proceedings. I make that observation in the context of my adoption in City of Ryde Council v Principal Healthcare Finance Pty Ltd [2017] NSWLEC 126 of the applicable principles regarding notices to produce; in particular, that such documents serve no legitimate forensic purpose and that it is clearly not “on the cards” that they will materially assist the case of the party seeking production.

11. As I said at the hearing of this motion, I again stress that those documents are simply “dross” which should never have been sought, produced, copied and then allowed to clog up litigation files. Legal practitioners must be ever vigilant to ensure that unnecessary and over-zealous exercises pursuing production – in essence fishing exercises – do not occur. When notices to produce are drafted in broad undiscerning terms, such as in this case seeking “all documents recording communications” over a four year period between the Respondent and their planners, a likelihood of falling foul of the principles arises.

12. The competing positions of the Applicant Council and the Respondent with respect to the Notice of Motion before the Court can be shortly stated. The Applicant Council contends that the Respondent has not discharged its onus of proving that documents 5-25, 28, 29 and 31-35 were prepared for the dominant purpose of Mr Gough providing legal advice to the Respondent.

13. Conversely, the Respondent contends that the relevant evidence which it relies on establishes that those documents were prepared for the dominant purpose of Mr Gough providing legal advice to the Respondent.

14. It should be noted that the parties agree that this issue – whether or not the Respondent has discharged its onus of establishing that those documents were prepared for the above mentioned dominant purpose – is the only issue for the Court to consider.

15. In order for the Court to resolve this dispute (as to whether or not the relevant documents are privileged and, therefore, need to be produced to the Applicant Council), it is convenient to first: briefly set out the relevant statutory framework and legal principles; outline the evidence that the parties rely upon in support of their positions; and explain why, at the hearing, the Court made orders to allow it to inspect the relevant documents subject to the claim of privilege.

Statutory framework

The Procedure Rules

16. Division 2 of Part 21 of the Procedure Rules concerns notices to produce documents before a hearing. Relevantly, rules 21.9 – 21.11 are as follows:

21.9 Definitions

(1) In this Division:

notice to produce means a notice to produce referred to in rule 21.10.

party A means a party to whom another party is producing, or being asked to produce, documents or things for inspection.

party B means a party who is producing, or being asked to produce, documents or things for inspection.

(2) For the purposes of this Division, a document or thing is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or thing would be admissible in evidence.

21.10 Notice to produce for inspection by parties

(1) Party A may, by notice served on party B, require party B to produce for inspection by party A:

(a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and

(b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue.

(2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced.

21.11 Production under notice to produce

(1) Unless the court orders otherwise, party B must, within a reasonable time after being served with a notice to produce:

(a) produce for party A’s inspection such of the documents or things referred to in the notice (other than privileged documents) as are in party B’s possession, and

(b) serve on party A, in respect of any document that is not produced, a notice stating:

(i) that the document is a privileged document, or

(ii) that the document is, to the best of party B’s knowledge, information and belief, in the possession of a person identified in the notice, or

(iii) that party B has no knowledge, information or belief as to the existence or whereabouts of the document.

(2) For the purposes of subrule (1):

(a) unless party B establishes to the contrary, 14 days or longer after service of the notice is to be taken to be a reasonable time, and

(b) unless party A establishes to the contrary, less than 14 days after service of the notice is to be taken to be less than a reasonable time.

17. Importantly, r 1.9 of the Procedure Rules regulates the process of objecting to the production of documents and the answering of questions founded on privilege:

1.9 Objections to production of documents and answering of questions founded on privilege

(1) This rule applies in the following circumstances:

(a) if the court orders a person, by subpoena or otherwise, to produce a document to the court or to an authorised officer,

(b) if a party requires another party, by notice under rule 34.1, to produce a document to the court or to an authorised officer,

(c) if a question is put to a person in the course of an examination before the court or an authorised officer.

(2) In subrule (1), authorised officer means:

(a) any officer of the court, or

(b) any examiner, referee, arbitrator or other person who is authorised by law to receive evidence.

(3) A person may object to producing a document on the ground that the document is a privileged document or to answering a question on the ground that the answer would disclose privileged information.

(4) A person objecting under subrule (3) may not be compelled to produce the document, or to answer the question, unless and until the objection is overruled.

(5) For the purpose of ruling on the objection:

(a) evidence in relation to the claim of privilege may be received from any person, by affidavit or otherwise, and

(b) cross-examination may be permitted on any affidavit used, and

(c) in the case of an objection to the production of a document, the person objecting may be compelled to produce the document.

(6) This rule does not affect any law that authorises or requires a person to withhold a document, or to refuse to answer a question, on the ground that producing the document, or answering the question, would be injurious to the public interest.

18. The term “privileged document” found in r 1.9 (and the axiomatically linked term “privileged information”) is defined in the dictionary to the Procedure Rules (r 1.2):

privileged document means a document that contains privileged information.

privileged information means any of the following information:

(a) information of which evidence could not, by virtue of the operation of Division 1 of Part 3.10 of the Evidence Act 1995, be adduced in the proceedings over the objection of any person,

…

but does not include information that the court declares not to be privileged information for the purposes of those proceedings.

The Evidence Act 1995

19. Given the interrelationship between the Procedure Rules and the Evidence Act 1995 created by the definition of “privileged information” under the former, it is necessary to set out, relevantly, s 118 of the latter (which falls within the Division concerning client legal privilege).

118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a lawyer, or

(b) a confidential communication made between 2 or more lawyers acting for the client, or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

20. It is also convenient to note here that, unlike Environment Protection Authority v Grafil Pty Ltd [2017] NSWLEC 88, this is not a case where the person objecting to the production of documents was not the person required to produce the documents. The Notice to Produce here required the Respondent to produce the relevant documents.

Legal principles

21. As the parties agreed, the party claiming the privilege bears the onus of establishing the basis of the claim and, therefore, the facts from which the Court can determine whether or not the documents are privileged: see, eg, Grant v Downs (1976) 135 CLR 674 at 689; [1976] HCA 63 and Re Southland Coal Pty Ltd (receivers & managers appointed) (in liq) (2006) 203 FLR 1; [2006] NSWSC 899.

22. As the parties also agreed, the relevant principles applying to the determination of a claim of client legal privilege include those distilled by Biscoe J in Walker Corporation Pty Ltd v Director-General of the Department of Environment and Climate Change [2009] NSWLEC 138 at [7]:

(a) the onus is on the party claiming privilege to show that the documents for which privilege is claimed are privileged: Grant v Downs (1976) 135 CLR 674 at 689; Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] NSWLEC 247, 161 LGERA 86;

(b) the dominant purpose must exist at the time the document is brought into existence: Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380 at [19] per McDougall J. This point did not arise on the unsuccessful appeal: Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [9];

(c) dominant purpose is a question of fact: Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49; Walker at [91]; Sydney Airports Corporation Ltd at [7]. Dominant purpose must be determined objectively having regard to all the circumstances, but the subjective intention of the author and of the person or authority under whose direction the document was prepared is entitled to weight;

…

(e) the Court of Appeal has approved the test of “dominant” purpose as clear paramountcy, or as the ruling, prevailing or most influential purpose; yet has observed that a purpose may not be dominant even if it is greater than another purpose or is the most important purpose: Sydney Airports Corporation Ltd at [7], [49] per Spigelman CJ (Sheller JA and M W Campbell AJA agreeing). It has been commented that it is somewhat difficult to reconcile the observation in that case that the most important purpose does not necessarily mean the dominant purpose with the proposition earlier adopted that dominant purpose indicates the most influential purpose: Odgers, Uniform Evidence Law, (8th ed, 2009) 565 fn 72.

(f) the Court has power to examine documents in cases where there is a disputed claim, and it should not be hesitant to exercise such a power: Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 at [52], Walker at [15].

…

23. However, with respect to principle (f), it is important to understand this principle in light of the decision of Brereton J in Hancock v Rinehart [2016] NSWSC 12. In particular, it is important to recognise that the power of the Court to require documents to be produced for its inspection (such as the power found in r 1.9(5)(c)) “exists not to facilitate proof by a claimant of the facts required to sustain the claim, but to provide a means of enabling a claim to be scrutinised and tested”: at [31].

24. Finally, as was emphasised by the Respondent, it is not necessary for a lawyer to be a party to the relevant communications for those communications to be for the dominant purpose of a lawyer providing legal advice: citing Walker Corporation Pty Ltd v Director-General of the Department of Environment and Climate Change at [12], [13], [23] and [29].

The evidence

The Respondent’s case

25. The Respondent’s case is that the relevant documents – said to be communications relating to, inter alia, “issues associated with clearing or fencing of land owned by Reysson [which are matters] the subject of these proceedings” – were prepared for the purpose of providing planning input to be incorporated in the substratum of legal advice and, therefore, the dominant purpose of Mr Gough providing legal advice to the Respondent.

26. The principal evidentiary materials relied upon by the Respondent to make good this case were the (relatively brief) affidavits of Mr Gough (sworn 14 November 2017), Mr Connelly (sworn 15 November 2017) and Mr Woolf (sworn 16 November 2017). The Respondent emphasised that this evidence was not challenged by the Applicant Council by way of cross-examination. In support of its claim, the Respondent extracted the following salient points from this body of evidence:

1. Mr Gough was retained by Mr Beveridge on behalf of the Respondent in early 2014 to provide legal advice in relation to the use of the land the subject of these proceedings.

2. For the purpose of providing legal advice (regarding planning issues) to the Respondent, Mr Gough retained Mr Connelly on 7 April 2014.

3. Mr Gough anticipated “that there was a real chance that the Council would bring legal proceedings against Reysson in respect of the matters in relation to which Mr Connelly was assisting”.

4. According to Mr Gough, the issues addressed in the relevant documents overlap with the issues that Mr Gough provided legal advice on.

5. In the course of providing his advice, Mr Gough was aware that Mr Beveridge and Mr Connelly “would liaise regarding factual matters and matters within Mr Connelly’s expertise for the purpose of assembling a factual and expert planning background upon which I could provide advice”.

6. Following being retained by Mr Gough and throughout the relevant period that Mr Connelly exchanged emails with Mr Gough and Mr Beveridge, Mr Connelly “always understood that the gathering and submission of facts and expressing of my opinions were ultimately for the purpose of Chris Gough providing legal advice to Reysson Pty Ltd about the use and activities on the Reysson land”.

7. Mr Connelly understood his communications with Mr Beveridge to have occurred “in the course of assisting Storey & Gough in the provision of legal advice to Reysson” and to have informed his subsequent discussions with Storey & Gough.

27. In this context, the Respondent contended that it was clear that: Mr Connelly was retained by Storey & Gough for the initial purpose of providing expert advice and that the relevant email correspondence occurred “in the context of assembling the factual and planning background for the provision of Mr Gough’s legal advice, which background was discussed with Mr Gough”.

28. The critical passage of the Respondent’s submissions in support of its claim that the documents were prepared for the dominant purpose of Mr Gough providing legal advice to the Respondent was as follows:

In this case, Mr Gough has reviewed the relevant communications and, based upon his involvement in the providing of legal advice and the discussions in conference and by telephone with Mr Connelly and Mr Beveridge, gives his view on the relationship to his giving of legal advice. Mr Connelly’s evidence also squarely establishes the role the documents played in that overall process. Their evidence allows the Court to conclude that what took place was not merely the discussion of separate planning advice with a lawyer … but rather planning input that formed the substratum of the advice – particularly given that Mr Connelly was retained by Mr Gough rather than Reysson.

29. Additionally, it should be noted that the Respondent denied that the existence of a relationship between Mr Connelly and Mr Beveridge prior to Mr Connelly being retained by Mr Gough in April 2014 supported any inference that the relevant documents were not prepared for the identified dominant purpose. What was said to be important is that, from this point on, the nature of the relationship fundamentally changed and coloured subsequent correspondence. Similarly, the Respondent suggested that the (legal) conference between the three relevant people on 23 February 2015 (see Exhibit A) was effectively an anchor in time supporting the inference that the relevant emails earlier in time were prepared in anticipation of this conference and that the relevant emails later in time were prepared as a result of the conference.

30. Finally, it should also be recorded that the Respondent reasoned that it was relevant to the Court’s exercise of discretion to consider whether the Notice to Produce was validly issued. Although this is not an issue currently before the Court in its own right, the Respondent contended that the Notice to Produce plainly impermissibly calls for the production of a broad category of documents. The Court indicated during the hearing that the Notice to Produce did have the hallmarks of a notice cast impermissibly wide, potentially giving rise to the issues highlighted above. However, a challenge to the Notice to Produce on this ground was not pursued by the Respondent.

The Applicant Council’s case

31. The Applicant Council’s case is that the Respondent has not discharged its onus of proving that the relevant documents were prepared for the dominant purpose of Mr Gough providing legal advice to the Respondent. On the available facts, the Applicant Council contended that the Court would not conclude that the claim of privilege has been established.

32. In support of this claim, the Applicant Council made the following key points with respect to the available evidence.

33. First, the Applicant Council asserted that it is apparent from the available evidence that Mr Beveridge and Mr Connelly had an established relationship that pre-dated Mr Gough retaining Mr Connelly on 7 April 2014 (a relationship said to have begun in early 2013). Relying on the correspondence that has already been produced to it for inspection (Annexure B to the affidavit of Ms Jessica Dorricott affirmed on 21 November 2017), the Applicant Council argued that it could be inferred that Mr Beveridge and Mr Connelly had an existing (and at times informal) relationship which involved Mr Beveridge periodically seeking town planning advice from Mr Connelly.

34. Secondly, the Applicant Council drew the Court’s attention to the following two particular sentences from Mr Connelly’s evidence:

I would also provide advice to Mr Beveridge in those emails which would later be discussed with Storey & Gough. I confirm that each of the emails between myself and Mr Beveridge were for the purpose of fulfilling my retainer by Storey & Gough to provide expert advice in connection with their retainer by Reysson.

35. With respect to this evidence, the Applicant Council submitted that it is apparent that Mr Connelly makes a distinction between providing advice to Mr Beveridge and that advice subsequently being discussed with Storey & Gough. It was contended that it might be inferred from this distinction that Mr Connelly prepared his email correspondence to Mr Beveridge for the dominant purpose of providing town planning advice, which would not be protected by client legal privilege. The fact that the advice came to be discussed subsequently with Mr Gough cannot change this dominant purpose.

36. Moreover, the Applicant Council emphasised the words “in connection with their retainer”. In this respect, it was submitted that “[t]he existence of a nexus between Mr Connelly’s advice and Mr Gough’s retainer to the respondent is insufficient to discharge the respondent’s onus of showing that this was the dominant purpose of the emails”.

37. Thirdly, the Applicant Council noted that the pattern of emails between Mr Beveridge, Mr Connelly and Mr Gough in the period 7 April 2014 to 10 July 2015 was as follows: two emails were exchanged between Mr Gough and Mr Connelly in April 2014 and, after a gap of approximately eight months, 15 emails were exchanged between Mr Connelly and Mr Beveridge in a six week period (from 6 January 2015 to 20 February 2015). The Applicant Council submitted that this pattern does not suggest that the dominant purpose of these particular emails was the provision of legal advice. Indeed, the Applicant Council reinforced this submission by noting that there is no evidence that any of these emails were ever sent to Mr Gough or contributed to a relevant report or document that was provided to Mr Gough.

38. Fourthly, the Applicant Council challenged the significance of the evidence of Mr Gough on the following bases.

39. With respect to Mr Gough’s statement that the emails deal with issues which he also provided legal advice to the Respondent on, the Applicant Council submitted that this is not conclusive of the dominant purpose of the emails. It is equally plausible that Mr Connelly simply provided planning advice on the same issues that Mr Gough later provided legal advice on.

40. With respect to Mr Gough’s statement that he was aware that Mr Connelly and Mr Beveridge would liaise for the purpose of assembling a planning background to inform his legal advice, the Applicant Council contended that this evidence does not prove what was the dominant purpose of those communications.

41. Furthermore, the Applicant Council submitted that Mr Gough’s articulation of his own view of the dominant purpose of the emails is not significant because he is not in a position to give direct evidence on this question. It is merely an assertion of legal opinion rather than a fact which allows the Court to make its own determination.

42. Finally, it should also be recorded that the Applicant Council noted that it is of some significance that the Respondent did not adduce evidence from Mr Beveridge as to the purpose of the emails that he sent.

Inspection

43. In the course of the hearing of this Notice of Motion, an issue arose between the parties as to whether the Court could and should inspect the documents subject to the claim of privilege in the context of the decision of Brereton J in Hancock v Rinehart. The position of the Applicant Council was that the Court should inspect the documents whereas the position of the Respondent was that the Court need not inspect the documents. Nevertheless, both parties agreed that if the Court was to determine that it ought to inspect the documents, then it would be necessary to take the following path.

44. Given that rule 1.9 of the Procedure Rules did not initally apply to the present circumstances (see r 1.9(1)), the power of the Court to require documents to be produced for the Court’s inspection under r 1.9(5)(c) was not enlivened: see Hancock v Rinehart at [30]. However, under r 21.11(1), the Court has the power to order that a party produce the relevant documents to the Court. Once such an order is made, r 1.9 becomes applicable due to r 1.9(1)(a) and, thereafter, the Court has the power under r 1.9(5)(c) to compel a party to produce the documents to the Court for inspection (in order to assist in determining the Respondent’s objection to producing the documents to the Applicant Council).

45. In the circumstances of this case, the Court was satisfied that it was desirable for the Court to inspect the relevant documents subject to the claim of privilege. To be clear, this inspection is not for the purpose of assessing whether the documents themselves prove the facts necessary to sustain the claim of privilege; rather, the inspection will “provide a means of enabling a claim to be scrutinised and tested”: Hancock v Rinehart at [31]. In this respect, the Court was also mindful of the applicability of principle (f): see Walker Corporation Pty Ltd v Director-General of the Department of Environment and Climate Change at [7].

46. It should also be recorded that whilst the Respondent submitted that the inspection of the documents was not necessary, it certainly did not say that it was inappropriate for the Court to inspect the documents for the purpose described above.

47. Hence, at the conclusion of the hearing, the Court made the necessary orders to obtain the relevant documents for inspection and to inform the Court’s consideration and determination of the Notice of Motion. The Respondent immediately provided a copy of the documents to the Court at the conclusion of the hearing.

Consideration

48. Dr Ronald Desiatnik has observed (quoting Interchase Corp Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) (1999) 1 Qd R 141 at 148; [1997] QCA 450) that “[t]he doctrine of legal professional privilege is an emotive one, which generates strong feelings, simply because: ‘the achievement of one desirable end – that people may be free to deal privately with legal advisers – may inhibit achievement of others which are equally desirable – such as that trials, civil and criminal, may reach fair and true results’”: Dr Ronald Desiatnik, Legal Professional Privilege in Australia (2nd ed 2005, LexisNexis Butterworths) at 41.

49. Be that as it may, the Court is charged with resolving the present dispute as to whether or not the Respondent has discharged the onus of establishing, on a sufficient evidentiary basis, that the relevant documents in dispute were prepared for the dominant purpose of Mr Gough providing legal advice to the Respondent. In order so to do, it is convenient to consider the documents in two tranches: (1) documents 5-12 and (2) documents 13-25, 28, 29 and 31-35.

Tranche 1

50. Having carefully considered the available evidence and competing positions of the parties, the Court is not satisfied that the Respondent has established that documents 5-12 were prepared for the dominant purpose of Mr Gough providing legal advice to the Respondent. The Court has reached this conclusion for the following reasons.

51. First, addressing the critical passage of the Respondent’s submissions, the Court places no significant weight on the opinion of Mr Gough as to the (en globo) dominant purpose of the relevant communications. Mr Gough’s opinion in this respect is not direct evidence of a fact that assists the Court to determine the claim of privilege; it is an assertion of law: see Hancock v Rinehart at [7].

52. In contrast, Mr Connelly’s evidence as to what he understood to be the purpose of his communications is significant and entitled to weight. Yet Mr Connelly’s evidence, read as a whole, is equivocal as to whether he prepared his correspondence for the dominant purpose of Mr Gough providing legal advice to the Respondent. That is, it is not clear that Mr Connelly, at the time of preparing his emails to Mr Beveridge, believed that he was preparing the emails for the dominant purpose of Mr Gough providing legal advice to the Respondent.

53. On the one hand, Mr Connelly says that the correspondence was prepared “in the course of assisting Storey & Gough in the provision of legal advice” and “for the purpose of fulfilling my retainer”. On the other hand, there is some force to the Applicant Council’s submission that an inference can be drawn from Mr Connelly’s statements that he prepared his correspondence to Mr Beveridge for the dominant independent purpose of providing planning advice. If so, the fact that the correspondence was subsequently used to inform discussions with Mr Gough does not and cannot, arguably contrary to the tenor of Mr Connelly’s evidence, transform the dominant purpose of the emails into that of Mr Gough providing legal advice to the Respondent.

54. Secondly, the Court accepts the Respondent’s propositions that it is significant that: Mr Connelly was retained by Mr Gough; Mr Gough was aware that Mr Beveridge and Mr Connelly would correspond with one another regarding matters within Mr Connelly’s expertise; and that the nature of the relationship between Mr Beveridge and Mr Connelly changed once Mr Connelly was retained by Mr Gough. However, these propositions are not sufficient to satisfy the Court that the relevant correspondence (documents 5-12) were prepared by Mr Connelly or Mr Beveridge for the dominant purpose of Mr Gough providing legal advice. Properly considered, these propositions only show that a purpose (not the dominant purpose) of preparing the correspondence may have been to ultimately assist in the provision of legal advice to the Respondent.

55. Thirdly, in circumstances where (1) Mr Connelly and Mr Beveridge had a pre-existing relationship and (2) email correspondence between the two recommenced some considerable time after Mr Connelly was retained by Mr Gough (without any significant evidence explaining why this correspondence recommenced save for the suggestion in oral submissions that the catalyst may have been Council officer inspections of the property in November 2014) – it is equally (if not more) likely that Mr Beveridge (who did not give evidence) prepared his emails to Mr Connelly for the dominant purpose of receiving planning advice with respect to the Respondent’s land and that Mr Connelly prepared his replies for the dominant purpose of providing this planning advice.

56. As the Applicant Council submitted, this is not inconsistent with the fact that this correspondence was subsequently used for the purpose of informing legal advice. Although it is true that a document need not be sent to a lawyer for it to be prepared for the dominant purpose of providing legal advice, the Court agrees with the Applicant Council that (with respect to documents 5-12) it is significant that there is no evidence that these emails were responsive to any instruction from Mr Gough, sent to Mr Gough or contributed to any document provided to Mr Gough.

57. Ultimately, with respect to documents 5-12, the Court is not satisfied that there is sufficient evidence to establish that these emails were prepared for the dominant purpose of Mr Gough providing legal advice to the Respondent. In fact, on the (limited) evidence, it appears to be as likely that the dominant purpose of the preparation of these emails was to receive or provide planning advice.

58. Furthermore, having inspected documents 5-12 for the purpose of scrutinising the claim of privilege, the Court concludes that the content of the documents supports a determination that there is insufficient evidence that the documents were prepared for the dominant purpose of Mr Gough providing legal advice to the Respondent.

Tranche 2

59. Conversely, the Court is satisfied that the Respondent has established that documents 13-25, 28, 29 and 30-35 were prepared for the dominant purpose of Mr Gough providing legal advice to the Respondent.

60. In order to understand this conclusion, it is important to have regard to Exhibit A and the produced email of 17 February 2015 from Mr Connelly to Mr Beveridge (Affidavit of Ms Dorricott, p 15). Together, these emails reveal that, by 18 February 2015, Mr Beveridge had confirmed an appointment with Mr Gough for 23 February 2015 (possibly for the purpose of devising a strategy to respond to a letter from the Applicant Council). Given the brevity and tone of Exhibit A, it is also reasonable to infer that, up to a few days before 18 February 2015, Mr Beveridge had flagged with Mr Connelly his intention to hold a joint conference. Critically, unlike the emails comprising documents 5-12, half of the relevant emails in the schedule sent after the scheduled joint conference of 23 February 2015 involved Mr Gough. Those emails that did not were relatively close in time to an email that did include Mr Gough.

59. The Court is of the view that, for the second tranche of emails commencing with document 13, the balance of evidence tips in favour of the Respondent’s claim that these documents were prepared for the dominant purpose of Mr Gough providing legal advice to the Respondent.

60. In all of the circumstances and on the evidence set out above, it is likely that the emails sent immediately before the joint conference was arranged and held (documents 13-17) were prepared for the dominant purpose of Mr Gough providing legal advice to the Respondent (possibly with respect to a letter sent to the Respondent by the Applicant Council). Moreover, as indicated by Mr Gough being included in many of the emails sent after the joint conference, it is likely that the immediately subsequent relevant emails were also prepared for this dominant purpose. To be sure, this is not to say that the scheduling of a joint conference and the inclusion of Mr Gough in emails is sufficient evidence alone to establish the claim of privilege. Rather, these facts are sufficient in the present circumstances to tip the balance of the broader body of relevant (albeit limited) evidence.

61. However, given this converse finding and the fact that the relevant factors tipping the balance are less applicable to some of the relevant documents (such as documents 33 and 34 – which are emails between Mr Connelly and Mr Beveridge temporally separated from an email with Mr Gough), it is important that the Court carefully tests the claim for privilege by reviewing the content of the relevant documents.

62. In undertaking this inspection, the Court is satisfied that documents 13 and 14 in the schedule have already been produced (see Affidavit of Ms Dorricott, p 15). With respect to the inspection of the abovementioned documents 33 and 34, the Court is not satisfied – having tested the claim for privilege ­– that those emails were prepared for the dominant purpose of Mr Gough providing legal advice to the Respondent. Rather, it is plainly apparent that these documents were not prepared for the dominant purpose of Mr Gough providing legal advice to the Respondent.

63. Save for these exclusions, the Court is satisfied from its inspection that the claim for privilege on the balance of the documents in the second tranche is well-founded and sufficiently established.

64. To summarise, it follows that the Court is satisfied that the claim for privilege has been established with respect to documents 15-25, 28, 29, 31, 32 and 35. However, documents 13 and 14 are not privileged because those documents have already been produced and documents 33 and 34 are not privileged and ought to be produced.

Costs

67. I note that whilst the Applicant Council’s motion also sought an order for costs, the Applicant Council has revised its position and agrees with the Respondent that costs should be costs in the cause. Therefore, I agree with the parties that the costs of this motion should be costs in the cause.

Orders

68. The Court orders that:

1. The Respondent is to produce, stayed until 12 noon 5 December 2017, to the Applicant Council documents 5 to 12, 33 and 34 listed in the schedule comprising Annexure A to the affidavit of Mr Bruce Woolf sworn 16 November 2017; and

2. The working copy of the bundle of documents referred to as Exhibit CG-1 be returned to the Respondent.  

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Decision last updated: 28 November 2017