Briscoe-Hough v Minister for Local Government

Representation: Counsel:
M Harker (Applicant on the motion)
G Briscoe-Hough (Self-represented) (First Respondent on the motion)
Solicitors:
Corrs Chambers Westgarth (Applicant on the motion)

File Number(s): 2024/391391

Publication restriction: Nil

JUDGMENT

1. The motion before me is an application by the Minister for Local Government (the Minister) seeking an order for me to set aside the Applicant’s Notice to Produce filed on 25 November 2024.

2. In support of the motion, the Minister read two affidavits of Mr Brcic affirmed, 20 January 2025 and 30 January 2025. The Applicant, Mr Briscoe-Hough, appeared for himself and made submissions opposing the Minister’s application.

3. The Notice to Produce seeks four categories of documents and the Minister argues that the documents sought are outside the scope of the power conferred by r 21.10 of the Uniform Civil Procedure Rules 2005 (UCPR) concerning Notices to Produce.

4. The Applicant pressed for production of the requested documents.

5. In determining if the Notice to Produce should be set aside, I am required to pay close attention to the issues in dispute in the substantive proceedings which seek judicial review in relation to the decision of the First Respondent to issue a Performance Improvement Order to Edward River Council (the Council), on 17 June 2024.

6. The first category of documents sought by the Applicant in his Notice to Produce seeks:

“An unredacted copy of the costs incurred as attached to the email of Ms Morphett dated 12 November 2024 to the Applicant.”

7. The redacted documents are Annexure C to the affidavit of Mr Brcic affirmed on 20 January 2024. The production of the unredacted documents is objected to by the Minister under r 1.9(3) of the UCPR on the basis that an unredacted copy of the document would disclose information that is subject to legal professional privilege.

8. Legal professional privilege may be used to resist providing access to information or documents which would reveal communications between a client and lawyer for the dominant purpose of giving or obtaining of legal advice or the provision of legal services including representation in legal proceedings: Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543; [2002] HCA 49 at [9] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

9. The Applicant presses for production and claims that the invoices were not prepared for the dominant purpose of obtaining legal advice and as such, no legal professional privilege attaches to the documents.

10. The practice of this Court is that documents sought under a notice to produce or subpoena that are subject to a privilege claim, are still required to be produced to the Court. Those documents that are subject to a claim for privilege are produced in a separate sealed packet with a list of the documents over which privilege is claimed included. The claim for privilege is also noted by the producing party in the proposed access orders.

11. That practice should be followed with the request for these documents.

12. I note for the benefit of all parties that whilst solicitor’s invoices are not ordinarily used to communicate legal advice or provide legal representation in proceedings, there is case law that states that such documents are protected from disclosure to the extent that they might, either alone or in conjunction with other documents or circumstances, allow one to infer the nature or content of communications subject to legal professional privilege Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; [1997] HCA 3; Packer v Deputy Commissioner of Taxation [1985] 1 Qd R 275; Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 6) (2001) 109 IR 11 at 14-16.

13. Although I have declined to set aside this category of documents sought in the Notice to Produce, the parties should be aware that documents that are required to be produced within this category may still be subject to a claim for legal professional privilege by the Minister. My ruling requiring production to the Court in respect of this category of documents does not waive any such privilege claim and it does not provide any of the parties to the proceedings with access to those same documents.

14. Category 2 of the Notice to Produce seeks production of the following:

“A copy of any Compliance Reports as attested in Ms Morphett’s affidavit of 30 September 2024 (at 24 & 25) resubmitted in her affidavit of 22 November 2024.”

15. It was submitted to me by the Minster that the Compliance Reports are not the subject of this dispute and that they can have no relevance to the resolution of any issues in the proceedings. In Ms Morphett’s affidavit (which is annexure D to Mr Brcic affidavit affirmed on 20 January 2025) she attests that these Compliance Reports were prepared by the Council in response to the Performance Improvement Order.

16. The Applicant submitted that it is necessary for the Court to have these Compliance Reports in order to understand the full facts of the matter.

17. These proceedings concern a review as to whether the Performance Improvement Order was validly issued or otherwise. I cannot see how the Council’s compliance with the Performance Improvement Notice goes to any issue in dispute between the parties to these proceedings and I set aside this part of the Notice to Produce.

18. The third category in the Notice to Produce seeks:

“All official records, file notes, officer recommendations, reports (including drafts) and legal advice, in respect of instructions received in the making and defence of the purported undated PIO in respect of Edward River Council.”

19. This category of documents is resisted by the Minister on the basis that such documents are privileged under r 1.9(3) of the UCPR. The Applicant argued that in his view privilege was waived over any such documents and that the documents are relevant to these proceedings.

20. It is clear on its terms that some of the documents sought under this category of the Notice to Produce may be subject to a claim for legal professional privilege. However, that does not exempt the Minister from compliance with the notice to produce. As said earlier in this judgment, those documents over which legal professional privilege is claimed should still be produced in a separate packet to the court with a list identifying those documents and seeking a claim for privilege in the proposed access orders.

21. The balance of this category of documents is also resisted by the Minister. In considering whether to set aside this category of documents in the notice to produce I am guided by the principles in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 where the Court of Appeal has confirmed that if a document sought is ‘apparently relevant’ to an issue in the proceedings, it will satisfy the ‘legitimate forensic purpose’ test and must be produced. Importantly, the test does not require the issuing party to be able to establish that the documents will ‘materially assist’ their case.

22. The onus lies on the mover of the motion to provide a proper evidentiary basis for suggesting that the documents being sought is too broad. To this end, the Minister argued that the documents sought under this category is impermissibly broad as it requires a person to search for and produce all such documents as he or she may have in her possession "in relation to" a particular subject matter: Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 at [13]-[14].

23. The Minister also argued that this category of documents ought to be set aside as there is no stated date range specified in relation to the search of records to be undertaken: Commissioner for Railways v Small (1938) 38 SR NSW 564 at 573.

24. Where a document or category of documents sought under Notice to Produce have some bearing on the issues in the case and may have evidentiary value, the Notice to Produce cannot amount to ‘fishing’. It is my view that the terms of this third category of documents in the Notice to Produce as filed and served sufficiently specifies that which is sought by the Applicant and ought to be produced.

25. However, to be clear to both parties, documents that are required to be produced within this category may still be subject to a claim for legal professional privilege and my ruling in respect of this category of documents does not waive any claim for legal professional privilege or grant the parties access to any such documents over which privilege is claimed that are produced in response to this category.

26. With respect to the final category of the documents, that category seeks production of:

“All correspondence to and from Edward River Council since January 2020 (no [sic] including Code of Conduct complaints and investigations;”

27. The Applicant maintains its request for production by the Council under this category of documents. The Minister opposes production and has also provided detailed evidence of the steps it would be required to engage in to comply with this request. The Minister argues that this request for documents is oppressive, time consuming, impermissible discovery and fishing.

28. Returning to the principles set out in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, although I can see how every piece of correspondence sent to and sent by Edward River Council since January 2020 may produce documents that are ‘apparently relevant’ these proceedings, I am satisfied on the Minister’s evidence that such a request is so broad as to be oppressive and would also require an on-going obligation on the Council to continue to produce correspondence within this category so long as these proceedings remain on foot.

29. I am supported in this conclusion by the findings of Bell P in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] where he found that “If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside.”

30. My view is that although documents of relevance may be captured within this category, they are only captured because the of the ambit of the request is so broad. As such I am satisfied that this category should be set aside.

31. The orders of the Court are:

32. The notice of motion is granted and Categories 2 and 4 of the Notice to Produce filed on 25 November 2024 are set aside.

33. The balance of the Notice to Produce filed on 25 November 2024 is returnable in the registrar’s telephone list on Monday, 26 May 2025.

S Froh

Registrar of the Court

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