Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority
[2008] NSWLEC 247
•29 August 2008
Reported Decision: (2008) 161 LGERA 86
Land and Environment Court
of New South Wales
CITATION: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] NSWLEC 247 PARTIES: APPLICANT:
RESPONDENT:
Walker Corporation Pty Ltd
Sydney Harbour Foreshore AuthorityFILE NUMBER(S): 30024 of 2003 CORAM: Biscoe J KEY ISSUES: Practice and Procedure :- Subpoena to produce documents - Claim for client legal privilege - Whether claim proved - Cross-examination of deponent of affidavit re client legal privilege - Inspection of documents by court where disputed claim to client legal privilege - Waiver of client legal privilege - Whether proved that privileged document produced by mistake such as to negate waiver of client legal privilege - Whether joint client legal privilege so that all to whom the privilege belonged had to share in waiving it - Whether prima facie evidence of abuse of statutory power in making environmental planning instrument and prima facie evidence that communications with legal advisers came into being as part of a plan to abuse statutory power, such that there was no client legal privilege over such communications - Whether party put states of mind of itself and another in issue such as to give rise to implied or issue waiver of client legal privilege - Whether communications with legal advisers could have contributed to alleged states of mind. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 (NSW), Pt 3, Pt 4 Div 10
Evidence Act 1995 (NSW), ss 118, 119, Pt 3.10
Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 56(1)(a)
Land and Environment Court Act 1979 (NSW), s 38(2)
Leichhardt Local Environmental Plan 2000
Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 1.9, Schedule 1CASES CITED: Ampolex Limited v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405
Attorney-General for the Northern Territory of Australia v Kearney (1985) 158 CLR 500
Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341
Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49
Farrow Mortgage Services (in liq) v Webb (1996) 39 NSWLR 601
Grant v Downs (1976) 135 CLR 674
Mann v Carnell (1999) 201 CLR 1
Re Southland Coal Pty Ltd (rec & mgrs apptd) (in liq) (2006) 59 ACSR 87
Seven Network Limited v News Limited [2005] FCA 142
State of New South Wales v Jackson [2007] NSWCA 279
Sydney Harbour Foreshore Authority v Walker Corporation Ltd (2005) 63 NSWLR 407
Sydney Harbour Foreshore Authority v Walker Corporation Ltd [No 2] (2006) 68 NSWLR 487
Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152
Thomason v The Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2004) 134 LGERA 195
Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2006] NSWLEC 138
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 242 ALR 383
Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529DATES OF HEARING: 25-26/08/08
DATE OF JUDGMENT:
29 August 2008LEGAL REPRESENTATIVES: APPLICANT:
Mr J. E. Marshall SC and Ms C. A. Burnett
SOLICITORS:
Minter EllisonRESPONDENT:
DEPARTMENT OF PLANNING: respondent to subpoena
Mr J. Stevenson SC and Mr M. Gilbert
SOLICITORS:
Deacons
Mr P. S. Hastings QC and Dr C. Mantziaris
SOLICITORS:
Crown Solicitor's Office (NSW)
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
BISCOE J
29 August 2008
30024 of 2003
WALKER CORPORATION PTY LTD v SYDNEY HARBOUR FORESHORE AUTHORITY
1 HIS HONOUR: The applicant, Walker Corporation Pty Ltd (Walker), and the respondent, Sydney Harbour Foreshore Authority (SHFA) are engaged in long running litigation under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act) over the market value of land at Ballast Point compulsorily acquired by SHFA in September 2002. The proceedings were commenced in January 2003. There is a substantial history to the action:
(a) it has twice been decided by Talbot J, the second time on remitter from the Court of Appeal: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2004) 134 LGERA 195, [2004] NSWLEC 315 and Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2006] NSWLEC 138;
(b) it has twice been before the Court of Appeal which, on each occasion, allowed an appeal by SHFA and remitted it to this Court: Sydney Harbour Foreshore Authority v Walker Corporation Ltd (2005) 63 NSWLR 407, [2005] NSWCA 251 and Sydney Harbour Foreshore Authority v Walker Corporation Ltd [No 2] (2006) 68 NSWLR 487, [2006] NSWCA 386;
(c) most recently, it has been before the High Court of Australia on an unsuccessful appeal by Walker: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 242 ALR 383, [2008] HCA 5.
2 On the latest remitter, the third hearing in this Court is fixed to commence on 1 December 2008.
3 An interlocutory dispute is now before the Court arising from Walker’s application for access to documents produced on subpoena by the Department of Planning, which were created prior to the litigation. The Department of Planning claims client legal privilege over some of the documents produced. SHFA also claims client legal privilege over a subset of the same documents. Walker disputes the privilege claim.
4 The Department of Planning’s privilege claim is supported by an affidavit of Christine Hanson, Acting Director of the Legal Services Branch within the Department of Planning. Annexed to Ms Hanson’s affidavit is a list of the documents produced in response to the subpoena over which privilege is still claimed. Walker challenges the privilege claim in relation to the documents which have been coloured yellow and red in that list. The documents in dispute range in dates from 2 December 1999 to 30 April 2003.
5 Walker says that the documents sought in the subpoena go to a central issue of when the respondent made or adopted the proposal to carry out the public purpose for which the land was acquired. That has been an issue in the proceedings because s 56(1)(a) of the Just Terms Act provides that the determination of market value must disregard “any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired”. The High Court held in WalkerCorporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 242 ALR 383 at [56] –[57]:
Resolution of any controversy of this nature must be for the further proceedings in the Land and Environment Court on the remitter ordered by the Court of Appeal on 21 December 2006.The primary judge had seemed to recognise that it was not until shortly before February 2002 that the State Government itself had adopted the proposal to carry out the public purpose. In its written submissions, Walker sought to place the date of the proposal by the state at some significantly earlier time.
6 Walker says that at the hearing of remitter it is open to Walker to argue that:
(a) the earlier proposal of the local council was adopted by and became the proposal of SHFA and hence there is no legal or factual difference between what the council had started and what the SHFA completed; and/or
(b) the proposal of SHFA was relevantly that of the State Government and was one that was adopted by the State Government at a time significantly earlier than 2002 when the land was resumed.
7 Whether the first of those matters is arguable may be controversial because the High Court accepted that “the” proposal under s 56(1)(a) “was not that of the council and the proposed resuming authority, or some aggregation over time of the policies of the council and later of the Carr government”: at [53] – [54]. It is unnecessary to say anything further on that point on this interlocutory issue.
8 Client legal privilege may be claimed in respect of confidential communications between a client and a legal adviser where the communications are made for the dominant purpose of either (a) enabling the client to obtain, or the legal adviser to give, legal advice (“legal advice privilege”); or (b) preparing for litigation actually taking place or that was in contemplation of the client (“litigation privilege”): Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49, [1999] HCA 67 at [35], [61], [62], [167]. Sections 118 and 119 of the Evidence Act 1995 (NSW) create the statutory legal advice privilege and litigation privilege, respectively.
9 Purpose is a question of fact and dominant purpose must be determined objectively having regard to all circumstances in which the communication was made and its nature. In Re Southland Coal Pty Ltd (rec & mgrs apptd) (in liq) (2006) 59 ACSR 87, [2006] NSWSC 899 at [14] (g) and (h) Austin J held:
(h) Dominant purpose – The dominant purpose of the communication must be determined objectively, having regard to all the circumstances in which the communication was made and its nature: Grant v Downs (1976) 135 CLR 674 at 689; 11 ALR 577 at 589, per Stephen, Mason and Murphy JJ; Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266; [2005] FCA 1247, at [30] per Kenny J; AWB Ltd v Cole at [110], per Young J. What is required is an objective view of all of the evidence, taking into account the evidence not only of the author of the communication but of the person or authority under whose direction the document was prepared. If the document would have been prepared irrespective of the intention to obtain professional legal services, it will not satisfy the test: Grant v Downs , at CLR 688; ALR 588, per Stephen, Mason and Murphy JJ. The existence of an ancillary purpose is not fatal to a claim for privilege, but if there are two purposes of equal weight, it is unlikely that one would dominate the other – Stephen Odgers, Uniform Evidence Law , 6th ed, Lawbook Co, Sydney, 2004 at [1.3.10500]–[1.3.10520].[14] (g) Purpose is a question of fact – The purpose for which a communication is made or a document is created is a question of fact: Esso Australia Resources Ltd v Cmr of Taxation (1999) 201 CLR 49; 168 ALR 123; [1999] HCA 67; Waterford v Commonwealth (1987) 163 CLR 54; 71 ALR 673; 12 ALD 741; Bauhaus at [24]). Purpose and intended use must be determined objectively, having regard to all of the evidence: AWB Ltd v Cole at [122]. Purpose cannot be proved by mere assertion by a third party. Normally (but not always) the relevant purpose is that of the maker of the communication for which privilege is sought.
10 What constitutes “legal advice” takes its character from the relevant legal context. In Re Southland at [14](d) Austin J held:
- [14](d) Legal advice – s 118 protects certain confidential communications and the contents of confidential documents made or prepared for the dominant purpose of a lawyer providing legal advice to a client. In this context, legal advice is understood in a pragmatic sense. In General Manager,WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 at [77] to [78], McColl JA quoted, evidently with approval, the observation of Taylor LJ in Balabel v Air India [1988] Ch 317, at 330, that legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context . This assumes, of course, that the advice is professional advice given by a lawyer in his or her capacity as such. Taylor LJ's dictum was applied in Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610, at 648 per Lord Scott of Foscote, 657 per Lord Rodger of Earlsferry, and 678 per Lord Carswell. There the House of Lords held that the Bank was entitled to claim legal professional privilege in respect of communications with its solicitors not only concerning its legal rights and obligations, but also concerning the presentation of its evidence to an inquiry so as to minimise criticism. See also DSE (Holdings) Pty Ltd v Intertan Inc (2003) 135 FCR 151; 203 ALR 348; [2003] FCA 1191; AWB Ltd v Cole [2006] FCA 571.
11 In the present case, the Department of Planning acknowledges that the relevant legal context is that legal advice was sought by the Department of Planning and/or SHFA, and was provided by internal and external legal advisers, in relation to the Ballast Point land on the following legal matters:
(a) The drafting of Leichhardt Local Environmental Plan 2000 (LEP 2000);
(b) Use rights, and particularly “existing use rights” under Part 4 Div 10 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act);
(c) Acquisition, valuation and compensation for acquisition of land under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW).
(d) The application of environmental planning instruments such as the LEP 2000, SEPP 56 and SEPP 5. Such planning instruments are delegated legislation made under the EPA Act Pt 3.
(e) Actual and anticipated litigation involving the applicant (and its predecessor McRoss Developments Pty Ltd) and SHFA and the Minister for Planning in this Court.
12 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 refers to the view expressed in Seven Network Limited v News Limited [2005] FCA 142 at [3] by Tamberlin J that it is generally appropriate that the evidence be given by the person from whom the documents or the request for them originated so that any evidence as to purpose may be tested by cross-examination. Walker makes the criticism that with the exception of a few documents in relation to which Ms Hanson was directly involved, that was not done here. On the other hand, Ms Hanson had a supervisory role, has given substantial evidence in relation to the documents and my inspection of the documents has illuminated their purpose.
13 There is a difference between the parties as to the precise juridical basis for a client legal privilege claim in this Court. Walker and the Department of Planning submit that it is the common law privilege. SHFA submits that by reason of the application of the Uniform Civil Procedure Rules 2005 (NSW) r 1.9, privilege is to be claimed under Part 3.10 of the Evidence Act 1995.
14 By reason of legislative and rules amendments which took effect on 28 January 2008, the UCPR now apply to civil proceedings in the Land and Environment Court (i.e. matters within Classes 1 to 4 of the Court’s jurisdiction) with certain exceptions in relation to Classes 1 to 3 (because of their special nature): UCPR r 1.5 and Schedule 1. UCPR r 1.9 applies in a number of circumstances including where the court by subpoena orders a person to produce a document. In that regard, r 1.9(3) provides that: “A person may object to producing the document on the ground that the document is a privileged document”. The definition of a “privileged document” in the UCPR Dictionary is a “document that contains privileged information”. The definition of “privileged information” includes “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 a proceeding over the objection of any person”. Part 3.10 of the Evidence Act deals with the topic of “privileges”. The first privilege dealt with, in Division 1, is “client legal privilege”. Sections 118 and 119 are within Division 1. However, in Classes 1, 2 and 3 of the Court’s jurisdiction, the Court is not bound by the rules of evidence: Land and Environment Court Act 1979 (NSW), s 38(2). Therefore, according to the submission of Walker and the Department of Planning, Division 1 of Part 3.10 of the Evidence Act does not apply in the present case; therefore UCPR r 1.9 is irrelevant; nevertheless, client legal privilege is a fundamental right; therefore the common law privilege applies. It is unnecessary to express a concluded view on this debate because in the present case it makes no practical difference whether the client legal privilege arises under the Evidence Act or at common law.
15 I allowed Walker and SHFA to cross-examine Ms Hanson on her affidavit and I have examined the disputed documents. Both courses are authorised by High Court authority. In Grant v Downs (1976) 135 CLR 674 at 689, the power to inspect documents in dispute was recognised and it was said that ”in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence”. In Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 at 70 [52] Gleeson CJ, Gaudron and Gummow JJ held: “A claim for privilege is not conclusively established by the use of verbal formula. A 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. In appropriate cases, there is also power to allow cross-examination of a deponent of an affidavit claiming privilege” (footnotes omitted). Walker referred to dicta in the earlier case of Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529 at 541 and 542 per Giles J that inspection should not be undertaken unless there is good reason to do so and that the Court would not unnecessarily pay regard to material which cannot be known to the party challenging the claim for privilege. However, when his Honour returned to this topic more recently in State of New South Wales v Jackson [2007] NSWCA 279 at [24], after citing Esso, he referred only to the second of those propositions. The High Court authorities are clear. The Court should not be hesitant to exercise the power to inspect documents.
16 In the present case, in my view, it was necessary and desirable to inspect the disputed documents. My inspection has illuminated the purpose for which they were brought into existence. The inspection enables me to uphold the claim for privilege in respect of all the disputed documents with the following exceptions.
17 First, document 32, which is a Ministerial briefing note dated 8 February 2002, to the end of the first dot point is not privileged and should be produced to Walker for inspection. Otherwise the document may be masked. Upon my expressing that view during the hearing, the Department of Planning agreed that Walker should have access to the document subject to such masking.
18 Secondly, document 15(a), which comprises two copies of a Ministerial briefing note dated 1 February 2002, is not, of itself, privileged except for the fifth and sixth paragraphs on the second page. It was attached to a privileged document and is a draft of a ministerial briefing note which was sent to Ms Hanson and another lawyer in the Legal Services Branch of the Department of Planning by their instructing officer in the Ballast Point matter, Mr Rob Bennett. Another copy of this document must have existed independently and should have been produced in response to the subpoena, subject to masking the fifth and sixth paragraphs. Upon my indicating that view during the hearing, the Department of Planning agreed that Walker should have access to the document subject to such masking.
19 Thirdly, document 57(a) is not, of itself, privileged. It is a copy of a document entitled “Caltex site, Ballast Point Road, Balmain – Site History”. It was attached to a privileged document. Another copy must have existed independently and should have been produced to Walker for inspection in response to the subpoena. Upon my expressing that view during the hearing, the Department of Planning agreed that Walker should have access to the document.
Waiver of privilege: document 49C
20 In response to the subpoena, and in accordance with the Department of Planning’s usual procedure, the Department of Planning allowed Walker’s legal representatives to informally inspect documents, apart from documents for which privilege was claimed which were placed in sealed envelopes. During the inspection, Walker legal representatives tabbed various documents and subsequently requested copies of a number of the documents tabbed. Those documents were copied by the Department of Planning and provided to Walker on 20 May 2008 under cover of a letter signed by a paralegal of the Department of Planning’s Legal Services Branch. One of the documents thus tabbed, copied and provided to Walker was document 49C. It is a summary of oral legal advice given by senior counsel at a conference on 5 May 2003 in relation to a brief to advise prepared by a lawyer in the Legal Services Branch of the Department of Planning. That date was after these proceedings had commenced.
21 The Department of Planning did not seek the consent of the SHFA to disclose this document to Walker. The SHFA submits that the document was obviously privileged, obviously disclosed by mistake and, consequently, that there was no waiver of the privilege.
22 In Mann v Carnell (1999) 201 CLR 1 at 2, the headnote conveniently notes that it was held by the High Court (with one dissentient) that:
- …what brings about a waiver of legal professional privilege is inconsistency between the conduct of the person entitled to the benefit of confidentiality of communication between lawyer and client and maintenance of the confidentiality. The conveyance, on a confidential basis, of the terms of legal advice received by the Territory as a body politic by its Chief Minister to a member of its Legislative Assembly, to enable him to consider the reasonableness of the conduct of the Territory, was not inconsistent with the purpose of the privilege to enable the Territory to obtain legal advice without the apprehension of being prejudiced by subsequent disclosure of that advice and to protect the Territory from the disclosure of legal advice it received. Accordingly, the privilege was not waived.
23 SHFA submits that where a privileged document was obviously disclosed by mistake, there is no inconsistency between the conduct of the person entitled to the benefit of communication between lawyer and client and maintenance of the confidentiality. Consequently, it submits, there was no waiver of privilege in relation to document 49C.
24 I agree that the nature of document 49C was such as to attract the privilege and that that very fact is strongly suggestive of the conclusion that it was disclosed by mistake. However, in the peculiar evidentiary circumstances of this case, I am unable to accept SHFA’s submission. The document has been in the possession of Walker for months. Ms Hanson swore a substantial affidavit earlier this month in which she specifically referred to this document but said nothing about it being disclosed by mistake. She was cross-examined not only by Walker but SHFA, and again nothing was said in questions or answers about the document having been disclosed by mistake. A copy of the document was annexed to the affidavit of Duncan McGregor sworn on 14 August 2008 on behalf of Walker and read in the current interlocutory hearing. As far as the evidence discloses, prior to the hearing the Department of Planning made no contention that it had disclosed the document by mistake. Its written submissions did not include any submission that it was disclosed by mistake. The only time that any such contention was made by the Department of Planning was in response to a question by me during the hearing when it was indicated on behalf of the Department of Planning that it supported SHFA’s submissions on mistake and waiver. In these peculiar evidentiary circumstances, I am not satisfied that I should accede to the submission that the document was disclosed by mistake.
25 Alternatively, SHFA submits that document 49C was the subject of joint privilege by both the Department of Planning and SHFA; SHFA did not waive the privilege; therefore any waiver of privilege by the Department of Planning was ineffective; and consequently, the Court should order the return of the document.
26 Where there is joint privilege in communications in a document, all to whom the privilege belongs must share in waiving it. In Farrow Mortgage Services (in liq) v Webb (1996) 39 NSWLR 601 at 608 Sheller JA (Waddell AJA concurring) held:
- Two or more persons may join in communicating with a legal adviser for the purpose of retaining his or her services or obtaining his or her advice. The privilege which protects these communications from disclosure belongs to all the persons who joined in seeking the service or obtaining the advice. The privilege is a joint privilege. So is it also if one of a group of persons in a formal legal relationship communicates with a legal adviser about a matter in which the members of the group share an interest. Communications by one partner about the affairs of the partnership or a trustee about the affairs of the trust are examples. Implicit in the relationship is the duty or obligation to disclose to other parties thereto the content of the communication. Accordingly no privilege attaches to such communications as against others who, with the client, share an interest in the subject matter of communication. But the parties together are entitled to maintain the privilege against the rest of the world : Phipson, par 20-28 and par 20-29. Logically the joint nature of the privilege means that all to whom it belongs must concur in waiving it. Theirs is one inseverable right. In pars 20-29 the learned editors of Phipson say that in the case of joint interest, it is sufficient, as against third persons, if only one of the interested parties claims the privilege, though all must concur in waiving it. In Rochefoucauld v Boustead [1897] 1 Ch 196, two parties were engaged in a joint venture. The first invited the second to consult his solicitor but, in proceedings against both parties, waived any privilege in respect of what took place. The second party was held to remain entitled to insist upon the maintenance of the privilege.
27 Persons present at the conference with senior counsel on 5 May 2003 (when the advice was given that is recorded in document 49C) included Mr O’Gorman-Hughes, a lawyer with Deacons, SHFA’s solicitors. He had the daily carriage of the matter at that time. He had been earlier provided with a copy of the draft brief to senior counsel by Ms Fitzhardinge, a lawyer in the Department of Planning’s Legal Services Branch, who also attended the conference, and had been asked whether he wished to attend the conference. Senior counsel sent a fee note to the Department of Planning in respect of the conference on 5 May 2003. There was an earlier email on 12 July 2002 from Mr O’Gorman-Hughes to other solicitors at Deacons to the effect that the Department of Planning had indicated that in future it (rather than Deacons’ client, SHFA) would pay that senior counsel’s invoices in relation to the matter. It is a reasonable inference that previously senior counsel had sent his fee notes to SHFA.
28 Walker disputes that there was any joint privilege. Walker submits that for present purposes, there is no distinction between SHFA and the Department of Planning. The Department of Planning is headed by the Director-General who is under the control and direction of the Minister for Planning. So too is SHFA.
29 The High Court has held in these proceedings that there is no relevant distinction between SHFA and the State of New South Wales. In Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 242 ALR 383, [2008] HCA 5 at [10] the High Court said:
- The Foreshore Authority Act constitutes the Foreshore Authority as a corporation (s 10) which for the purposes of any statute is a statutory body representing the Crown (s 11). Among the functions conferred upon it by s 12 are the protection and enhancement of the natural and cultural heritage of the foreshore area and the promotion of orderly and economic development and use of that area. Although the Foreshore Authority came into existence only on 14 December 1998 its functions encompass purposes always within the power of the state itself to effect. Hence in what follows in this judgment, as in the judgments in the Court of Appeal and at first instance, there is no relevant distinction between the Foreshore Authority and the state.
30 As there is no relevant distinction between SHFA and the Department of Planning of the State, I do not accept that there was a joint privilege. Consequently, the privilege over document 49C has been waived.
Documents in relation to LEP 2000 and SEPP 56
31 Walker submits that the making of LEP 2000 was an abuse of statutory power, and therefore there is no privilege from disclosure of documents relating to the zoning of the area at Ballast Point (at least in LEP 2000 and SEPP 56, but other plans too); and such documents ought to be produced and made available for inspection. Walker submits that there must be such documents particularly as the Department of Planning’s written submissions said that legal advice had been sought and obtained in relation to the drafting of LEP 2000 and the evidence of Ms Hanson was that since the creation of the SHFA, it and the Department of Planning have continued to work together on planning issues relating the major projects around the harbour foreshore, including matters relating to Ballast Point. In addition, Ms Hanson indicated in cross-examination that the documents referred to in para 89 of her affidavit related to LEP 2000: they were documents nos 86A, 86A(a), 86A(b), 86C, 88A, 89, 91, 93, 93A and 93B.
32 In oral submissions, Walker’s submission was refined to the effect that if the purpose of LEP 2000 was to maintain the industrial zoning and legal advice was sought as to how to maintain that zoning, then giving effect to that advice was part of the abuse of statutory power and there is no privilege in the legal advice and documents seeking the legal advice.
33 Walker seeks to found the abuse of power contention on the findings or conclusions in Talbot J’s second judgment that no logical or proper planning purpose had been shown for the council’s decision to maintain the existing zoning or the subsequent introduction of new industrial zoning and that it was a low risk decision to ensure that development antipathetic to the creation of the harbourside park did not occur. Those findings or conclusions, and the context in which they were expressed, are to be found in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2006] NSWLEC 138 at [17] – [24]:
17 I find that the proposal [by the council] to acquire the land was first adopted on 6 February 1992. Moreover in my opinion by 22 December 2000 the market would still have rated the chance of a rezoning to permit the extent of residential development adopted for the purpose of my valuation as it was in 1992, namely, at 100 per cent. If unity of purpose is a prerequisite the time that the proposal was adopted was the date of the making of LEP 2000. However I find that the Mayoral Minute made 6 February 1992, following the preceding decision of the council in December 1991, was a clear and unequivocal decision which formed part of the proposal to acquire the land for the public purpose. I also find no subsequent facts or events, extraneous to the proposal, had the effect of increasing or decreasing the value of the land. Accordingly the consistent refusal to rezone the land for residential purposes and the maintenance of an industrial zoning must be disregarded.
18 Between 1992 and 2000 the council and the State Government were at odds in respect of potential residential development of the land. Accordingly, during that period, the actions of the council are the only matters to be disregarded for the purposes of s 56(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991 ( the Just Terms Act ) as having the effect of decreasing the value of the land. The actions of the Government maintained the otherwise 100 per cent expectation of rezoning.
19 The importance of the drafting and making of LEP 2000 by the council and the Minister is that, at least from that point, I am satisfied there is sufficient unity of purpose displayed by the two arms of government (see [30] of the Court of Appeal judgment). However for the reasons explained later I see no reason why the earlier actions of the council alone cannot be accepted as part of the proposal to carry out the public purpose for which the land was acquired.
20 The chance of rezoning at the time of making LEP 2000 was 100 per cent. This level of chance did not diminish in the time leading up to the date of acquisition as the steps taken by the Government, including the removal of the land into schedule 1 of State Environmental Planning Policy No. 56 – Sydney Harbour Foreshores and Tributaries ( SEPP 56 ), were all for the public purpose and must be ignored.
22 The evidence shows that it was not seriously contemplated by any authority, state or local government, or the owner of the subject land that the use of the site for the purpose of industry other than perhaps a small historical use would be maintained or established. In other words, there was no logical planning purpose supporting an industrial zoning for the land . It is relevant to note that in 1995 Caltex applied for and obtained development consent to construct 174 medium density dwellings with FSR of 0.803:1 (see [91] of earlier judgment).The planning purpose
21 Basten JA discusses various facets of the decision in Housing Commission of New South Wales v San Sebastian Proprietary Limited And Others (1978) 140 CLR 196 at [46] to [60] of the Court of Appeal judgment and in particular the manner in which a rezoning should be regarded in the context of identifying a step in the resumption process. He raises a distinction between a rezoning which the planning authority intended or anticipated should give rise to a resumption and the maintenance of a zoning for proper planning purposes.
23 I am not persuaded that the planning decision to maintain an industrial zoning was made for the proper planning purpose of controlling industrial development of the land. It was a low risk device used by the council to ensure that development antipathetic to the creation of a harbourside park did not occur. The council was aware that Caltex was winding down its activities on the site. These actions are identified and discussed at [65], [66] and [67] of my earlier judgment. The targeted aspirations for private development concentrated on residential development and therefore the prospect of industrial redevelopment was remote. The industrial zoning was solely maintained for the purpose of thwarting development for any other purpose.
(emphasis added)24 No proper planning purpose has been shown for maintaining the existing industrial zoning or the subsequent introduction of the new industrial zoning .
34 In submitting that if there was an abuse of statutory power there is no privilege from disclosure of related documents, Walker seeks to apply the following principles in Attorney-General for the Northern Territory of Australia v Kearney (1985) 158 CLR 500 at 515 – 516 per Gibbs CJ:
- In my opinion the present case comes within the principle which forms the basis of the rule that denies privilege to communications made to further an illegal purpose. It would be contrary to the public interest which the privilege is designed to secure — the better administration of justice — to allow it to be used to protect communications made to further a deliberate abuse of statutory power and by that abuse to prevent others from exercising their rights under the law. It would shake public confidence in the law if there was reasonable ground for believing that a regulation had been enacted for an unauthorized purpose and with the intent of frustrating legitimate claims, and yet the law protected from disclosure the communications made to seek and give advice in carrying out that purpose… The law strikes a balance between securing proper representation by encouraging full disclosure on the one hand, and requiring the production of all relevant evidence on the other, but the balance more readily inclines in favour of disclosure where privilege from disclosure might conceal an abuse of delegated powers to enact legislation, and thus obstruct a proper challenge to the validity of part of the law itself. The basis of the privilege is not endangered if it is held that it does not protect communications made by a public authority for the purpose of obtaining advice or assistance to exceed its statutory powers.
35 The next passage in that judgment should also be taken into account (at 516):
- The privilege is of course not displaced by making a mere charge of crime or fraud or, as in the present case, a charge that powers have been exercised for an ulterior purpose. This was made clear in Bullivant v. Attorney-General (Vict.) [[1901] A.C., at pp. 201, 203, 205] and in O'Rourke v Darbishire [[1920] A.C. 581, at pp. 604, 613-614, 622-623, 632-633]. As Viscount Finlay said in the latter case [[1920] A.C., at p 604], there must be something to give colour to the charge . His Lordship continued:
- The statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact ... The Court will exercise its discretion, not merely as to the terms in which the allegation is made, but also as to the surrounding circumstances, for the purpose of seeing whether the charge is made honestly and with sufficient probability of its truth to make it right to disallow the privilege of professional communications.
36 Two points may be noted about these passages from Kearney. First, they refer to a “deliberate” abuse of statutory power. Secondly, in Kearney there was prima facie evidence that the communications with the legal advisors came into being as part of a plan to abuse statutory power by defeating land claims.
37 Assuming (without deciding) in favour of Walker that there were findings by Talbot J (not disturbed on appeal) which evidence a deliberate abuse of statutory power, the question is whether there is prima facie evidence that the subject communications with legal advisors came into being as part of a plan to abuse the statutory power. I have looked at the subject documents and can see nothing in them which could answer that description. Consequently, in my opinion, they are not capable of falling within the ambit of Walker’s abuse of statutory power contention.
Issue waiver
38 Walker says that the SHFA and the State Government have asserted that SHFA/State Government had a separate proposal to acquire the Ballast Point land, separate from that of the council. Walker submits that this puts in issue their state of mind in relation to whether there was or should be such a separate proposal (the relevant minds being the senior officers at the SHFA and the persons within the State Government responsible for planning – which at least includes the Minister). Walker submits that that state of mind must necessarily have been impacted upon by legal advice the SHFA/State Government received on the topic. Hence, Walker submits, there has been an issue waiver of that legal advice, if it be otherwise privileged: Thomason v The Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347 at 359; Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 at 163 – 168; Ampolex Limited v Perpetual Trustee (Canberra) Ltd (1995) 37 NSWLR 405 at 411.
39 Issue waiver is a form of implied waiver. In Mann v Carnell (1999) 201 CLR 1 at [29] a majority of the High Court stated the basic principle of implied waiver as follows:
- Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is imputed by operation of law [eg, Goldberg v Ng (1995) 185 CLR 83 at 95]. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank [(1993) 35 NSWLR 110], the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
40 The concept of implied or issue waiver was examined by the Full Court of the Federal Court in Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 at [51] – [53] (omitting most citations):
[51] …the majority in Mann at [29] referred to the implied waiver case of Benecke v National Australia Bank (1993) 35 NSWLR 110 in the course of explaining their formulation of the inconsistency principle. In Benecke , the plaintiff alleged in her originating process that her lawyers had compromised prior litigation contrary to her instructions. She was held to have waived the privilege by giving evidence at trial concerning her instructions to her barrister in the prior proceedings, even though she did not actually intend to do so. The majority in Mann observed, at [29], that her intentional act was inconsistent with the maintenance of the confidentiality of the communication .
[53] In recent years, Full Courts of this Court have twice given detailed consideration to the application of implied (or issue) waiver. …[In] Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 …[r]eferring to two decisions of the High Court preceding Mann (namely, Maurice and Goldberg ), the Court (Olney, Kiefel and Finn JJ) postulated, at 371, that issue waiver was no more than a particular manifestation of the principles applying either to waiver by disclosure or to implied consent to disclosure . The Court continued, also (at 371):[52] These authorities show that, where issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication.
- The usual type of case said to illustrate issue waiver at common law is one in which, in order to establish a particular right, claim or defence a party who previously has been legally advised, or has provided advice, needs to show that the advice given did, or did not, have a particular character, for example, that it was not negligent where the claim is for professional negligence against the adviser…that it was not based on full information or was not meaningful, in an undue influence claim…or that it did not address or properly address a matter which, if addressed or properly addressed, would defeat or call into question the right or claim asserted as in claims where the applicant has to demonstrate he or she acted with or without adequate knowledge of the matters…In other words the cases are ones in which, in the substantive proceeding brought, the privilege holder has put in issue the very advice received. We observe in passing that it is questionable whether advice can properly be said to be in issue in a proceeding merely because it may be relevant to an issue in it…save, perhaps, where the proceeding is between client and legal adviser and the advice is relevant to the adviser's defence of that proceeding.
41 The Full Court added at [61]:
- Both before and after Mann , the governing principle required a fact-based inquiry as to whether, in effect, the privilege holder had directly or indirectly put the contents of an otherwise privileged communication in issue in litigation, either in making a claim or by way of defence. In DSE[(Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499] at [58], Allsop J put the matter somewhat more descriptively, saying waiver arises when
- the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication. (emphasis in original).
42 Walker cites Ampolex Ltd (above) at 411 where Giles CJ Comm. D considered waiver of privilege as follows:
- Ampolex submitted that the documents in the hands of GPG Nominees, Allied and Sir Ronald Brierley, if ever attracting privilege, had lost their privilege when GPG Nominees and Allied alleged that they had purchased the notes in the belief induced by Ampolex that the notes were convertible on the basis set out in the trust deed and endorsed on the notes; alternatively, the allegation by Ampolex that GPG Nominees and Allied had particular beliefs as to its (Ampolex's) state of mind had the same result. According to the submission, GPG Nominees and Allied had opened up for investigation and testing the source of and basis for their belief, and inspection could not be denied of documents relevant thereto, or alternatively the allegation by Ampolex did the same. Reference was made to the passage in Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347 at 358-359; 56 WN (NSW) 108 at 111 in which, after identifying as one of the issues what knowledge the plaintiff had as to legal rights and observing that it was knowledge which she was not likely to possess unless she derived it from a legal adviser, Jordan CJ said:
- Hence in effect one of the issues in the case was what advice if any the plaintiff had received from her legal advisers as to her alternative legal rights. In these circumstances, since the fact and nature of the advice is an issue in the case, I am of opinion that privilege cannot be raised to prevent the proof of the advice. The position is analogous to that which arises in a suit in Equity to set aside a transaction on the ground of undue influence. In such a suit it has always been the practice for the defendant to cross-examine the plaintiff with a view to proving that the plaintiff had competent legal advice when he entered into the transaction, and to call and examine the legal adviser if he is available; and I have never known it to be suggested that such evidence is inadmissible on the ground of the plaintiff's privilege.
43 Ampolex is distinguishable. In that case the parties expressly put their state of mind in issue. The judge emphasised that the legal advice was likely to have contributed to their states of mind as was plain from the dates of and descriptions of the documents. Had that not been so, his Honour said, the principle may not have applied. In the present case, I have difficulty in seeing that SHFA has put its alleged state of mind in issue. It seems to me that any issue as to whether SHFA’s proposal was separate from that of the council should be determined objectively by looking at what was said and done, rather than subjectively by inquiry into the states of mind of those of its officers, government planning officials or the Minister. I cannot see that SHFA’s case necessarily lays open its communications with its lawyers to scrutiny. Therefore, I can see no inconsistency between its conduct and the maintenance of the confidentiality in communications with lawyers such as would constitute unfairness in allowing the matter to proceed without disclosure of in which those communications. However, lest I am incorrect and Walker is correct that SHFA has put the states of mind of SHFA and the State Government in issue, I can see nothing in the contentious documents, which I have inspected, that could have contributed to the states of mind alleged by Walker.
44 The orders of the Court will be as follows:
1. The Applicant’s application for access to the following documents produced by the Department of Planning in response to a subpoena filed on 21 April 2008, in relation to which the Department of Planning has claimed legal privilege (being documents listed in annexure B to the affidavit of Christine Craig Hanson sworn on 8 August 2008), is allowed as follows:
- (a) document 32 to the end of the words following the first dot point. The remainder of the document may be masked;
(b) document 15(a), except for the fifth and sixth paragraphs on the second page which may be masked;
(c) document 57(a).
3. The exhibits and the bundles of copies of privileged documents may be returned.
2. Save as aforesaid, the Applicant’s application for access to privileged documents produced by the Department of Planning in response to the said subpoena, is dismissed.
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