Western Developments Pty Limited v Orange City Council - [2007] NSWLEC 141

Land and Environment Court

of New South Wales

CITATION: Western Developments Pty Limited v Orange City Council [2007] NSWLEC 141

PARTIES: APPLICANT
Western Developments Pty Limited
RESPONDENT
Orange City Council

FILE NUMBER(S): 10018 of 2007

CORAM: Pain J

KEY ISSUES: Practice and Procedure :- subpoena - whether document produced serves a legitimate forensic purpose - whether waiver of legal professional privilege

LEGISLATION CITED: Evidence Act 1995
Water Management Act 2000

CASES CITED: Ashfield Municipal Council v RTA [2004] NSWSC 917;
Attorney-General of the Northern Territory v Maurice (1986) 161 CLR 475;
Australian Securities and Investments Commission v Rich [2004] NSWSC 923;
Baker v Campbell (1983) 153 CLR 52;
Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101;
Mann v Carnell (1999) 201 CLR 1 ;
Novus Australia Energy Co Pty Ltd v Gulf Petroleum (Australia) Pty Ltd [2001] NSWSC 579;
NRMA Ltd v Morgan (No 2) [1999] NSWSC 694;
Seven Network Limited v News Limited (No 12) [2006] FCA 348;
Terry Street Pty Ltd v Leichhardt Municipal Council (2005) 145 LGERA 137

DATES OF HEARING: 20 March 2007

DATE OF JUDGMENT:
23 March 2007

LEGAL REPRESENTATIVES: APPLICANT
Mr M Wright
SOLICITOR
King-Christopher Carpenter
RESPONDENT
Mr P Clay
SOLICITOR
McIntosh McPhillamy & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

23 March 2007

10018 of 2007 Western Developments Pty Limited v Orange City Council
JUDGMENT ON SUBPOENA

1 Her Honour: This is a Class 1 appeal against a development consent issued by the Council on 4 May 2006 for a 115 lot subdivision at 20 Farrell Road Orange, DA 227/2005. The Applicant has served a subpoena seeking the production of a document containing legal advice prepared by the Council’s solicitor on or about 22 September 2006. The Council claims legal professional privilege in relation to this.

2 At issue in the proceedings are two conditions of consent as follows “Prior to the issue of a subdivision certificate”:

2) A Certificate of Compliance, from Orange City Council under Division 5 of Part 2 of Chapter 6 of the Water Management Act 2000, is to be submitted to the Principal Certifying Authority prior to the issuing of a Subdivision Certificate.

Orange City Council will require the payment of contributions for water, sewer and drainage works prior to the issuing of a Certificate of Compliance. In accordance with Council policy, the contributions are currently $5,874.00 per lot (114 lots) for water supply headworks and $3,240.85 per lot (115 lots) for sewerage headworks. Contributions are indexed in accordance with Council’s Management Plan current at the time of the issuing of a Subdivision Certificate.

(10) The payment of $1,189,488.20 shall be made to Council in accordance with Section 94 of the Act and Waratah Development Contributions Plan 2005 towards the provision of the following public facilities …

3 In particulars provided by the Council’s solicitors in a letter dated 15 March 2007 to the Applicant’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWLEC 141
Decision Date: 23 March 2007

CaseChat Overview and Summary

The case of Western Developments Pty Limited v Orange City Council involved a dispute between the applicant, Western Developments, and the respondent, Orange City Council. The applicant sought an order to compel the respondent to produce certain legal advice documents. The matter was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the Council had waived its legal professional privilege in the legal advice documents sought by the subpoena. Additionally, the court had to determine if there was a legitimate forensic purpose in these proceedings to which the subpoenaed document could be relevant.

The court held that the Council had indeed waived its legal professional privilege over the legal advice documents in question. The court arrived at this decision based on the Council's conduct in the proceedings, including the disclosure of certain information and the manner in which the Council had responded to the subpoena. However, the court also found that there was not currently any legitimate forensic purpose in these proceedings to which the subpoenaed document could be relevant. The court emphasised that the applicant should be given the opportunity to determine the issues it wishes to raise in the proceedings. Once the applicant had filed its statement of issues, the question of access to the subpoenaed document should be revisited. The parties were directed to discuss and submit a timetable to the court to achieve this.

The court's final orders were that the Council had waived its legal professional privilege in the legal advice documents, but the applicant should be given the opportunity to determine the issues it wishes to raise in the proceedings. Once the applicant had filed its statement of issues, the question of access to the subpoenaed document should be revisited, and a timetable to achieve this should be discussed by the parties and submitted to the court.

Orders

Orders of the court

I therefore consider the Council has waived its legal professional privilege in the legal advice the subject of the subpoena.

That is not the end of the matter as I have held in par 11 above that there is not presently any legitimate forensic purpose able to be identified in these proceedings to which the subpoenaed document could be relevant. The Applicant should have the opportunity to determine what issues it wishes to raise in these Class 1 proceedings. Once it has filed its statement of issues the question of access to the subpoenaed document should be revisited. A timetable to achieve this should be discussed by the parties and submitted to the Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Western Developments Pty Limited v Orange City Council [2007] NSWLEC 141
PARTIES:	APPLICANT Western Developments Pty Limited RESPONDENT Orange City Council
FILE NUMBER(S):	10018 of 2007
CORAM:	Pain J
KEY ISSUES:	Practice and Procedure :- subpoena - whether document produced serves a legitimate forensic purpose - whether waiver of legal professional privilege
LEGISLATION CITED:	Evidence Act 1995 Water Management Act 2000
CASES CITED:	Ashfield Municipal Council v RTA [2004] NSWSC 917; Attorney-General of the Northern Territory v Maurice (1986) 161 CLR 475; Australian Securities and Investments Commission v Rich [2004] NSWSC 923; Baker v Campbell (1983) 153 CLR 52; Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101; Mann v Carnell (1999) 201 CLR 1 ; Novus Australia Energy Co Pty Ltd v Gulf Petroleum (Australia) Pty Ltd [2001] NSWSC 579; NRMA Ltd v Morgan (No 2) [1999] NSWSC 694; Seven Network Limited v News Limited (No 12) [2006] FCA 348; Terry Street Pty Ltd v Leichhardt Municipal Council (2005) 145 LGERA 137
DATES OF HEARING:	20 March 2007
DATE OF JUDGMENT:	23 March 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr M Wright SOLICITOR King-Christopher Carpenter RESPONDENT Mr P Clay SOLICITOR McIntosh McPhillamy & Co