Casson v Leichhardt City Council

ex tempore Judgment 1By a notice of motion filed on 28 September 2011 the applicant seeks production of a report that was said to be encompassed by the terms of a notice to produce that she had served upon the respondent Council. Production of that document is opposed by the Council on the basis that the document is one for which client legal privilege is claimed. That claim is founded upon s 118 of the Evidence Act 1995. 2These proceedings were commenced pursuant to s 17 of the Roads Act 1993. They relate to an area of land having frontage to Birchgrove Road, Balmain that appears to be a residue lot in a subdivision registered by the Registrar-General before 1 January 1920 ( the Lane ). The applicant in the proceedings is the owner of land that adjoins the Lane. She seeks a declaration that the land should not be dedicated as a public road [sic], a declaration that is, in terms, contemplated by s 17(2). 3On 7 December 2010, the Council resolved to give notice of an intention to dedicate the Lane as a public road. This notice was given conformably with s 17(1) of the Roads Act . It was in response to the notice that the applicant commenced the present proceedings. 4On 13 May 2011, the applicant issued a notice to produce to the Council requiring the production of documents falling within a number of identified categories. It would seem that, by and large, those documents were produced, save for the document that is the subject of this motion. It is not suggested that the notice to produce was insufficient in its terms to require production of the report considered by the Council when it resolved to give the notice of its intention to dedicate the Lane, as it did, on 7 December 2010 ( the report ). It is that report in respect of which the claim for privilege is made. 5The report was prepared by Ms Margaret Lyons, the Council's Manager of Legal Services. Ms Lyons is a legal practitioner holding a practising certificate under the provisions of the Legal Profession Act 1987 (now repealed). Her duties include the provision of legal advice to the Council. She is responsible for managing the Council's legal work. 6The evidence before me reveals that in February 2010 a complaint was received by the Council from the owner of land that has a common boundary with the Lane. As a consequence of that complaint being referred to her, Ms Lyons conducted her own research into the title of the Lane and also sought legal advice from the Council's external solicitors. It was in consequence of her actions in that regard that Ms Lyons prepared the report considered by the Council on 7 December 2010. 7On the evidence before me, it would seem that the report was the only material before the Council when it resolved to take the action relating to the Lane that I have earlier described. In affidavit evidence provided in opposition to the applicant's motion, Ms Lyons described her purpose in preparing the report as being one "to inform the Council of the circumstances relating to the laneway and to provide the Council with legal advice in relation to the continued use of the laneway". 8For the purpose of considering the report prepared by Ms Lyons, the open meeting of the Council on 7 December was reconstituted as a meeting of the Committee of the Whole and undertook its consideration in closed meeting. It took that step in reliance upon the provisions of s 10A of the Local Government Act 1993. Its ultimate resolution to give notice of an intention to dedicate the Lane as a public road was passed in open meeting. 9As I have earlier indicated, the Council relies upon the provisions of s 118 of the Evidence Act in order to sustain its claim for what it describes as legal professional privilege. That section relevantly provides: "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) confidential communication made between the client and a lawyer, or (b) 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." 10In addressing the provisions of this section, both parties have made reference to the decision of Austin J In re Southland Coal Pty Ltd (Receivers and Managers Appointed) (in liq) [2006] NSWSC 899; (2006) 203 FLR 1. At [14] of that judgment, his Honour summarised a number of principles relevant to the claim of client legal privilege, that being the claim made by the Council in the present case. 11There are two matters to be noticed from his Honour's decision by reference to what is set out in [14] of that judgment. First, the party claiming privilege bears the onus of establishing the basis of the claim and the party claiming production does not bear the onus of excluding privilege. Authority is cited in support of that proposition. When dealing with the question of "legal advice" his Honour summarised the position thus: "Section 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." 12Reference is then made to the observations of McColl JA in General Manager , WorkCover Authority (NSW) v Law Society of New South Wales [2006] NSWCA 84; (2006) 65 NSWLR 502 where her Honour cited with approval the observations of Taylor LJ in Balabel v Air India [1988] Ch 317 (at 330). In the latter case his Lordship said 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." Austin J continued [at14] by observing that his Lordship's statement "assumes, of course, that the advice is professional advice given by a lawyer in his or her capacity as such." 13In the context of s 118 of the Evidence Act , Austin J observed that the purpose for which a communication is made or document created is a question of fact. He continued: "Purpose and intended use must be determined objectively, having regard to all of the evidence [citation of authority omitted]. 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." 14It follows from the provisions of s 118 of the Evidence Act , and the discussion directed to its operation by the authorities, that critical to the determination to be made in this matter is the purpose for which Ms Lyons prepared the report. If the dominant purpose of its preparation is not found to be that of the kind identified in the section then the protection that it affords will not apply. 15Having considered the circumstance in which the report came to be prepared, I am not satisfied that the dominant purpose of its preparation was for Ms Lyons to provide legal advice to the Council, accepting for the purpose of discussion that the Council was "a client" and Ms Lyons was a lawyer within the meaning of s 118. As I have indicated, not only does Ms Lyons state in her affidavit that there was a dual purpose in forming the preparation of her report, namely both to inform the Council of the circumstances related to the Lane and to provide legal advice, but also that dual purpose is made apparent from the first paragraph of the report itself. I should interpolate that for the purpose of making my decision the report has been made available to me. Paragraph 1 of the report identifies its purpose as being "to recommend that Council claim as a public road a lane between [relevant properties] in Birchgrove Road and Darling Street Balmain." 16It seems to me that the report is one that does not bear the hallmark of a report prepared predominantly for the purpose of providing legal advice to the Council. While a legally trained Council officer prepared it, its real purpose seems to be the making of a recommendation that the Council exercise a discretionary statutory power to acquire land, being the exercise of a power available to it under s 16(2) of the Roads Act . It would be a most unusual circumstance where, in the exercise of a discretionary power available to a council, all of the material made available to it for the purpose of exercising its discretionary power was deemed to be privileged, simply because the material was provided in the form of a report from its internal legal advisor. I do not dismiss the possibility that there may be some circumstances in which a report of that kind may be protected from inspection by another party. However, in the present case, the report, from my perusal of it, is one that is discursive, identifying in large measure factual material available from the Council records and presumably made available to the applicant under the terms of the notice to produce. The report otherwise directs attention to the provisions of ss 16 and 17 of the Roads Act , and recommends to the Council that the power available to it under those sections be exercised. 17In those circumstances, it seems to me that it could not properly be said, as a matter of fact, that the dominant purpose of Ms Lyons in preparing the report was to provide legal advice to the Council. It was advice to the Council as to the power available to it under the Roads Act , having regard to the complaint received early in 2010. Its preparation reflected a collation of Council's records dealing with the Lane over the years, together with further material gathered from interviews with people having apparent familiarity with the use of the Lane in the past. This was all material relevant to the exercise of the power available to the Council to bring the Lane into Council ownership, conformably with the statutory provisions vesting such a discretion in it. 18For these reasons I do not consider the report to be protected from production by s 118 of the Evidence Act and I am disposed to make an order of the kind sought in the applicant's notice of motion.