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[2025] NSWCA 80
procedural. The motion filed on 4 February 2025 was dismissed. The applicant was ordered to pay the respondents’ costs of the motion. Material provided to the Court by the Spencers and the Council over which...
8 cited instruments linked from this judgment.
Joseph sought documents exchanged or prepared by the Spencers and Kiama Municipal Council around a development appeal and conciliation conference. He said the documents were relevant to his judicial review case and that privilege had been waived or lost. Kirk JA held that the summons then before the Court did not challenge the Council’s change of position or plead the serious allegations used to justify the request. The documents were therefore not relevant to a fact in issue. The judge also concluded that privilege had not been waived or lost, and that most of the disputed conference material was protected from production under s 34(11). The motion was dismissed, with costs against Joseph.
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2,318 words · generated 07/10/2026
Joseph v Spencer [2025] NSWCA 80 is a procedural ruling by Kirk JA on a motion for access to documents in a pending judicial review proceeding. The motion concerned documents held by the Spencers, who had obtained development consent, and Kiama Municipal Council. They claimed client legal privilege and protection under s 34(11) of the Land and Environment Court Act 1979 (NSW) (LEC Act).
The underlying dispute concerned relatively minor alterations and additions to the Spencers’ house in Kiama Downs. The Council refused their development application, and the Spencers appealed to the Land and Environment Court (LEC). Joseph, an adjoining landowner who had opposed the application, unsuccessfully sought to join the Class 1 proceedings ([5]–[7]).
A mandatory conciliation conference took place on 12 and 13 August 2024. Joseph made oral and written submissions at its commencement but otherwise did not participate ([8]). The Spencers and Council reached an agreement. Under s 34(3) of the LEC Act, the Commissioner’s task was to decide whether the agreed outcome was one the Court could have made in the proper exercise of its functions. It was not a merits decision about whether the agreement was preferable to the original positions ([9]).
The Commissioner approved the agreed outcome on 30 August 2024. Her decision relied on an addendum to the Statement of Environmental Effects, which addressed an exception in cl 6.7(2)(b) of the Kiama Local Environmental Plan 2011 ([21]–[23]). Joseph then filed a judicial review summons. After parts of it were struck out by consent, the grounds included challenges concerning amendment of the development application, legal unreasonableness, the Commissioner’s satisfaction, procedural fairness, and failure to consider mandatory relevant matters ([26]–[27]).
Joseph’s 4 February 2025 motion sought documents identified in notices to produce. He relied in part on allegations that the parties had engaged in abuse of process, collusion or misconduct. The Court first asked whether the documents were relevant to an issue actually raised in the current summons. It held they were not, and dismissed the motion on that basis ([36]–[47]).
The central procedural point was that a notice to produce under r 21.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) is tied to a fact in issue. Rule 21.9 defines that concept by asking whether a document could rationally affect the assessment of the probability of the fact, whether or not it would itself be admissible ([37]).
The Court used the existing summons to identify the issues. Joseph argued that he should not be confined to it because he intended to seek amendments. Kirk JA rejected that approach: “That Mr Joseph may wish to put further matters in issue is not the same thing as them being in issue” ([41]). The distinction mattered because the alleged collusion concerned how the parties had conducted the Class 1 proceedings and reached an agreement, while the summons challenged the Commissioner’s decision. Joseph confirmed in submissions that he wanted to challenge the Council’s decision to enter the agreement, but that challenge was not in the summons ([43]).
The judge identified three connected reasons the documents were not apparently relevant. First, the impugned decision was the Commissioner’s, not the Council’s decision to change its position. Second, judicial review evidence generally does not extend beyond material before the decision-maker, subject to recognised categories that did not appear to apply to the pleaded grounds here ([43]–[45]). Third, the summons did not contain the serious allegations that Joseph invoked to justify seeking the documents ([46]).
The judgment also emphasised that a party cannot use a notice to produce as an investigative search for support for serious allegations that have not yet been properly raised. Kirk JA said that a litigant must have a proper basis before asserting such allegations under privilege, and “cannot use r 21.10 to go searching for such evidence in order to be able to make them” ([42]). The primary conclusion was therefore procedural and narrow: the request did not satisfy the relevance threshold in the proceeding as then constituted ([47]).
The judge nevertheless addressed privilege issues at the parties’ request, to avoid further argument if the summons were later amended ([4]). On waiver, Joseph argued that the Council’s Statement of Facts and Contentions (SOFAC) had been influenced by the Council’s expert, that the experts’ acceptance of the Expert Witness Code of Conduct implied waiver, and that the joint expert report (JER) had been provided to the Commissioner ([48]).
The Court rejected those points. Even assuming the SOFAC was influenced by the expert, it expressed the Council’s position and did not state or imply the expert’s views ([50]–[51]). Agreement to comply with the Code did not disclose the substance of expert evidence or prior communications ([52]–[54]). The JER identified the documents and assumptions on which the experts relied, and Joseph had access to those materials. Use of that report did not, without more, make it inconsistent to preserve privilege over earlier communications ([56]–[60]).
On s 125, Joseph alleged deliberate abuse of power. The Court held that allegations alone were insufficient: there had to be evidence giving the charge some foundation in fact. The onus rested on Joseph ([64]–[65]). The asserted failure to file a SOFAC was not a breach because the relevant order did not require the Spencers to file one ([11], [62]). The evolution of the Council’s position was not inherently suspicious in the context of litigation and a statutory duty to participate in conciliation in good faith ([66]–[71]). The evidence also did not support the allegation that a Council lawyer had lied about whether amended plans or the JER had been received ([72]–[75]).
The judgment applied existing procedural and privilege principles and clarified their operation in the context of s 34(11) of the LEC Act. It did not purport to overrule earlier authority or decide the wider availability of all possible privilege exceptions.
Before this decision, the Court of Appeal in McMillan v Taylor [2023] NSWCA 157 had indicated that “purpose” in s 34(11)(b) should mean dominant purpose. Kirk JA agreed and explained why. The wording refers to “the purposes”, and the provision also covers documents prepared “in the course of, or as a result of” a conference. In his view, text and context supported a dominant-purpose test ([86]–[90]).
The judgment further explained that s 34(11), although framed as a rule about admissibility, could protect qualifying material from production. The UCPR’s definition of privileged information includes information whose disclosure, production or use would be contrary to another Act. Rules 21.11 and 1.9 then provide mechanisms relevant to resisting production or access ([80]–[85]).
As to the operation of the protection after an agreement, the Court distinguished ongoing conciliation work from material formally presented to the Commissioner. The statutory process under s 34(3) involves the exercise of public power and results in a public decision. Kirk JA considered it inconsistent with that aspect of the process to treat the material presented to the Commissioner for that purpose as protected by s 34(11) ([94]–[97]). He concluded that protection continues for documents generated during further negotiations after agreement, but ends for final versions presented to obtain the s 34(3) decision ([96]–[97]).
The judgment also located that interpretation within the settlement-promoting purpose of conciliation confidentiality. It referred to Jireh International Pty Ltd v Western Export Services Inc (No 2) [2011] NSWCA 294 and the analogous settlement privilege in s 131 of the Evidence Act 1995 (NSW). The Court treated the dominant-purpose test as a way to balance free settlement discussions against the use of relevant evidence in later proceedings ([89]–[91]).
The “after” position established by this judgment is therefore best described as an explanation and application of those principles in the particular statutory setting. The judgment does not state that the legislation changed. It provides a reasoned treatment of the protection’s reach, including production and the endpoint for final documents submitted to the Commissioner.
At [41], Kirk JA stated: “That Mr Joseph may wish to put further matters in issue is not the same thing as them being in issue.” In plain English, a party’s intention to amend a pleading does not make the proposed issues part of the case before the Court. Relevance is assessed against the proceeding as it currently stands.
At [42], the judge said a litigant “cannot use r 21.10 to go searching for such evidence in order to be able to make” serious allegations. This explains that notices to produce are not a general investigative tool for finding a basis to plead serious misconduct. The relevance requirement remains a threshold.
At [51], the Court explained that a document influenced by an expert’s views does not necessarily disclose those views. The distinction is between the fact that a person’s thinking may have informed a document and the document actually revealing the substance of privileged expert communications.
At [54], the Court said an expert’s agreement to comply with the Code does not, by itself, establish waiver over earlier drafts or communications. The Code governs the expert’s duties, but its acceptance does not automatically expose prior privileged material.
At [65], the Court adopted the requirement that there be “some prima facie evidence” supporting an alleged abuse. In plain English, the allegation must have some evidentiary foundation. It is not enough simply to assert misconduct.
At [97], the judge stated that s 34(11) protection ends for final versions of documents presented to the Commissioner to seek a decision under s 34(3). The point is not that every document produced after an agreement loses protection. Documents used in continuing negotiations may remain protected; the relevant distinction is whether the final document was presented to obtain the statutory decision.
The decision is most directly relevant where a party seeks documents by notice to produce in a judicial review proceeding and the asserted relevance depends on allegations not included in the current pleading. It highlights the need to identify the particular fact in issue and explain how the requested material could rationally affect its assessment, rather than relying on proposed amendments or a broader dispute about how the underlying parties behaved ([37], [41]–[47]).
It is also relevant where an applicant seeks privileged expert communications after a party has filed a position document, an expert report, or a joint report. The judgment indicates that influence on a document is not equivalent to disclosure of the expert’s views, and that an expert’s acceptance of the Code does not by itself waive privilege over earlier drafts or communications ([50]–[60]).
For s 125 arguments, the decision is pertinent where a party alleges that documents were prepared in furtherance of a deliberate abuse of power. It requires attention to whether the alleged abuse is a fact in issue, whether there is some evidentiary basis for the allegation, and whether the documents were prepared in furtherance of it ([61]–[65]).
For conciliation material, the judgment applies where documents arise in or around a LEC conciliation conference. The key questions include the document’s dominant purpose, whether it was created for ongoing conciliation discussions, and whether it is a final version presented to the Commissioner for a s 34(3) decision ([86]–[102]). The actual classification remains document-specific: the judgment treated most listed emails as protected, but did not treat one visual impact analysis held by the Spencers as protected because it appeared to have dual purposes ([100]).
The supplied judgment contains no decisions issued after 24 April 2025, so it does not establish how later courts have treated Joseph v Spencer. No subsequent application, approval, distinction or appellate review can be identified from the material provided.
The judgment itself discusses earlier authorities rather than later treatment. It treats Blacktown City Council as appropriate guidance on apparent relevance, without deciding whether subpoena abuse-of-process principles and the express UCPR relevance test are identical ([38]–[39]). It agrees with the dominant-purpose indication in McMillan v Taylor [2023] NSWCA 157 and explains the basis for that conclusion ([86]–[87]). It also applies the reasoning in Stanizzo to the evidentiary foundation required for an allegation under s 125 ([64]–[65]).
Those are the relationships visible in this judgment, not evidence of subsequent treatment of Joseph v Spencer itself. Any account of later cases would require sources beyond the supplied judgment.
Several questions were expressly left unresolved. First, Kirk JA did not decide whether the principles governing abuse of process for subpoenas map exactly onto the relevance requirement in rr 21.9–21.10. All parties proceeded on the footing that Blacktown offered appropriate guidance, and the Court adopted that approach without deciding equivalence ([38]–[39]).
Second, the judgment did not determine whether s 34(11) protection can be waived by conduct, or whether it can be lost on grounds analogous to s 125 of the Evidence Act. Because Joseph’s waiver arguments failed on the facts, it was unnecessary to decide how waiver under s 34(12) should be assessed, including whether implied consent would require the conduct of all parties ([103]–[106]).
Third, the Court assumed without deciding that the alleged abuse of process could fall within “abuse of a power” for s 125(1)(b). The case therefore does not conclusively define the relationship between procedural abuse of process and the statutory expression “deliberate abuse of a power” ([64]).
Fourth, the judgment’s document-by-document findings arose from the schedules and evidence before it. The treatment of the Digital Line visual impact analysis illustrates that purpose can depend on who holds a document and why that particular version was created or sent. The decision does not create a blanket rule that all material connected with a conciliation conference is protected, or that all post-agreement documents are unprotected ([97]–[102]).
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Joseph v Spencer [2025] NSWCA 80
Hearing dates: 7 April 2025
Date of orders: 24 April 2025
Decision date: 24 April 2025
Before: Kirk JA
Decision: (1) The applicant’s motion filed on 4 February 2025 is dismissed.
(2) The applicant is to pay the respondents’ costs of the motion.
(3) The material provided to the Court by the Spencers and the Council over which privilege was claimed is to be returned to their respective solicitors.
Catchwords: CIVIL PROCEDURE – notices to produce under r 21.10 of Uniform Civil Procedure Rules 2005 (NSW) – relevant to a fact in issue – justification for production concerns decision not impugned in summons – summons does not set out serious allegations invoked as basis for seeking documents – disputed documents not relevant to fact in issue
CIVIL PROCEDURE – notices to produce under r 21.10 of Uniform Civil Procedure Rules 2005 (NSW) – objection to production of documents or things – client legal privilege – whether waived for purposes of s 122 of Evidence Act 1995 (NSW) – filing of document content of which influenced by views of an expert does not establish disclosure of those views, nor does expert’s agreement to be bound by expert witness code of conduct, nor does provision of joint expert report to court – no prima facie evidence to found alleged misconduct under s 125 of Evidence Act 1995 (NSW)
CIVIL PROCEDURE – notices to produce under r 21.10 of Uniform Civil Procedure Rules 2005 (NSW) – objection to production of documents or things – document prepared for purposes of or in course of or as result of conciliation conference for purposes of s 34(11) of the Land and Environment Court Act 1979 (NSW) – s 34(11) enables production of documents to be resisted if relevant purpose dominant – protection ends when final version presented to commissioner for purpose of seeking s 34(3) decision
Legislation Cited: Civil Procedure Act 2005 (NSW), s 30(4)
Evidence Act 1995 (NSW), ss 122, 125, 131, 131A
Land and Environment Court Act 1979 (NSW), ss 34, 34AA(2)
Kiama Local Environmental Plan 2011 (NSW), cll 4.6, 6.7
Uniform Civil Procedure Rules 1999 (Qld), r 212(2)
Uniform Civil Procedure Rules 2005 (NSW), rr 1.9, 21.9, 21.10, 21.11, 51.45(1A), 59.6, Sch 7
Cases Cited: Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; [1997] HCA 3
Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12; (2019) 367 ALR 256
Esso Australia Resources v Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67
GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266
Jireh International Pty Ltd (t/as Gloria Jean’s Coffees) v Western Export Services Inc (No 2) [2011] NSWCA 294
Kang v Kwan [2001] NSWSC 698
Lewis v Lamb [2011] NSWSC 873
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183
McMillan v Taylor [2023] NSWCA 157
MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912
New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Spencer v Kiama Municipal Council [2024] NSWLEC 80
Traderight (NSW) Pty Ltd (ACN 108 880 968) v Bank of Queensland Limited (ACN 009 656 740) (No 14) [2013] NSWSC 211
Van Der Lee v State of New South Wales [2002] NSWCA 286
Texts Cited: Neil Williams SC and Alan Shearer, “Evidence in Public Law Cases”, Ch 9 in Neil Williams (ed), Key Issues in Judicial Review (2014, Federation Press)
Category: Procedural rulings
Parties: Michael John Joseph (Appellant; self-represented)
Ricardo Spencer (First respondent)
Jennifer Spencer (Second respondent)
Kiama Municipal Council (Third respondent)
Land and Environment Court (Fourth respondent)
Representation: Counsel:
R O’Gorman-Hughes (First and second respondents)
JP Farrell (Third respondent)
Solicitors:
HWL Ebsworth Lawyers (First and second respondents)
McCullough Robertson Lawyers (Third respondent)
File Number(s): 2024/413777
Publication restriction: Nil
This judgment concerns a motion seeking access to documents which are claimed to be subject to client legal privilege and also protected from production by s 34(11) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The motion is brought in the context of a judicial review application challenging a decision of a commissioner of the Land and Environment Court (LEC), who acted pursuant to s 34(3) of the LEC Act to give effect to an agreement in Class 1 proceedings between a local council and applicants for a residential development consent.
There was no dispute, in light of s 131A of the Evidence Act 1995 (NSW), that the client legal privilege claims were to be determined in accordance with that Act. There is a question as to whether s 34(11) of the LEC Act applies with respect to production, as distinct from admission, of documents.
The following issues arise, which I will address in turn after first setting out the background to the matter:
whether the documents sought are relevant to a fact in issue;
whether client legal privilege has been waived by the respondents for the purposes of s 122 of the Evidence Act;
whether client legal privilege has been lost by the respondents pursuant to s 125 of the Evidence Act, relating to misconduct;
whether production of some or all of the documents can be resisted pursuant to s 34(11) of the LEC Act, which itself raises six sub-issues (as identified below at [79]).
I have concluded the first issue adversely to Mr Joseph. That finding suffices to reject his motion. However, the Council submitted – and I understood the other parties to agree – that I should still determine the privilege claims even if I reached that view, so as to pre-empt further argument if and when the summons seeking judicial review is amended. I have done so, concluding that client legal privilege has neither been waived nor lost. As regards the s 34(11) claim, I have concluded that the protection applies – and can be employed to resist production – to all the documents for which it is claimed other than one document held by the first and second respondents.
The applicant in this matter (who is also the applicant on the motion), Mr Michael Joseph, owns a house facing towards the sea in Kiama Downs on the South Coast of New South Wales. His house adjoins a residential property owned by the first and second respondents, the Spencers. In 2023 the Spencers made a development application to the third respondent, Kiama Municipal Council, seeking consent for relatively minor alterations and additions to their house, including partial removal of existing structures and construction of new decks, balconies, retaining walls and landscaping (the DA). The Council refused consent.
The Spencers exercised their right to appeal to the LEC in its Class 1 jurisdiction.
Mr Joseph had opposed approval of the application by the Council. When the matter went to the LEC, he filed a motion in the proceedings in which, amongst other things, he applied to be joined to the proceedings. His motion was heard on 31 July 2024 and dismissed by Robson J in an ex tempore judgment: Spencer v Kiama Municipal Council [2024] NSWLEC 80 (Spencer No 1).
The Court held the mandatory conciliation conference between the parties on 12 and 13 August 2024, pursuant to ss 34 and 34AA(2)(a) of the LEC Act, with Dickson C presiding. Mr Joseph made oral submissions objecting to the DA at the commencement of the conciliation conference on behalf of himself and a neighbour, and he also provided a written submission. Otherwise he did not participate in the conference.
As is commonly the case for such matters, the conciliation conference led to an agreement being reached between the Spencers and the Council. Pursuant to s 34(3) of the LEC Act, the question Dickson C then had to address was whether that agreed resolution was a decision that the Court could have made in the proper exercise of its functions, in which case the Court was obliged to give effect to the agreement. The role of the Commissioner was not to make a merits assessment of the issues that were originally in dispute between the parties, but rather to determine whether there were jurisdictional constraints on the power of the Court which would preclude making an order of the kind reached in the agreement: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (McMillan v Taylor No 2) at [65] and [80]. Put simply, the issue was whether the Court could, not should, give effect to the agreed outcome: ibid at [4]-[8].
In a decision delivered on 30 August 2024, Dickson C held that the agreement between the Spencers and the Council was one within the Court’s jurisdiction and on that basis made orders granting development consent to a modified version of the Spencers’ DA: Spencer v Kiama Municipal Council (No [2024] NSWLEC 1526 (). Amongst other things, she noted that “[t]he proposed development has a limited footprint, is of a small scale and through design and the imposition of the annexed conditions and adverse impacts are satisfactorily managed” (at [4(6)]).
On 14 June 2024 the Council filed a Statement of Facts and Contentions (SOFAC) in the LEC, outlining the basis of its refusal to grant consent to the DA. Doing so was required by [18] of the LEC’s “Practice Note – Class 1 Development Appeals”, but in any event was required by LEC orders made on 3 June 2024. Those orders also provided that the Spencers were “to file and serve any [SOFAC] in reply in accordance with Schedules [sic] C” of the practice note by 18 June 2024. Mr Joseph gave some emphasis to that order in part of his argument, asserting that the Spencers had not complied with it by failing to file a SOFAC. I reject that submission. The order’s reference to any SOFAC in reply indicates that the order was setting a date for filing if any such document was to be filed. It was not requiring the Spencers to file such a document (and see similarly [2] of the usual directions set out in Sch E of the practice note).
The Council’s SOFAC said that the DA failed to comply with cl 6.7 of the Kiama Local Environmental Plan 2011 (the LEP), and none of the exceptions listed in cl 6.7(2) applied. Moreover, it said that cl 6.7(2) was not a “development standard” such that cl 4.6 of the LEP could not be applied to enable variation of its requirements.
Clause 6.7 of the LEP relevantly provides as follows:
6.7 Foreshore building line
(1) The objective of this clause is to ensure that development in the foreshore area will not impact on natural foreshore processes or affect the significance and amenity of the area.
(2) Development consent must not be granted for development on land in the foreshore area except for the following—
(a) the extension, alteration or rebuilding of an existing building wholly or partly in the foreshore area,
(b) the erection of a building in the foreshore area, if the levels, depth or other exceptional features of the site make it appropriate to do so,
(c) development for the purposes of boat sheds, sea retaining walls, wharves, slipways, jetties, waterway access stairs, swimming pools, fences, cycleways, walking trails, picnic facilities or other recreation facilities (outdoors).
…
The Spencers had retained Ms Kate Barlett of “The Planning Studio” as a planning expert. Their schedule of documents indicates that a brief was sent to her on 28 May 2024, with “email correspondence confirming engagement” sent in early June 2024. The schedule does not suggest that Ms Bartlett provided a written report in either draft or final form, although there is a reference to “email correspondence re timing of JER submission” on 23 July 2024.
The Council had retained Mr David Ryan, a consultant, as its planning expert. It appears from the Council’s schedule of documents that he was first briefed around 31 May 2024, with a “formal brief” provided on 11 June 2024. It is not apparent whether or not he provided the Council with a written report in either draft or final form, although the schedule identifies emails having subject matter which includes “provision of expert opinion”.
Ms Bartlett and Mr Ryan met in conclave, together with Mr Peter Smith, who I understand was from the architecture firm used by the Spencers, Smith and Tzannes. They produced a joint expert report (JER) the purpose of which was said to be “to address the [SOFAC] in relation to planning and urban design issues”. The date 29 July 2024 is in a footer of that document. Court orders had required that the joint expert report be filed and served by 29 July 2024. On the signature page the date 30 July 2024 is given, and I infer that the report was completed and signed on that date.
The introductory section of the JER records that:
The authors of this report have read Division 2 of Part 31 of the Uniform Civil Procedure Rules and the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules. The authors have considered the Conference of Expert Witness Policy and acknowledge that this Statement has been prepared in accordance with all the above rules and notes.
With respect to cl 6.7(2) of the LEP, the JER records that Mr Ryan was of the view that it was not applicable because he considered it only applied to new buildings and not extensions, and in any event because “there are no ‘exceptional features’ of the site that make the proposed building works appropriate”. Ms Bartlett expressed the view that there were some exceptional features, which she identified.
The JER records that Mr Smith had produced two modified proposals for the development, labelled Options 1 and 2. Mr Ryan was critical of Option 1 but considered that Option 2 went some way to assuage the concerns he had identified, although he appeared to consider that more work was required to be done. The JER records in its introduction that “[t]he experts agree that the contentions have been resolved or where not resolved could be through the imposition of conditions of development consent”.
The JER was filed by the Council in the LEC at 10:17am on 1 August 2024.
As noted, the conciliation conference occurred on 12-13 August 2024. Ms Bartlett produced a “Statement of Environmental Effects Addendum” (the SEE Addendum) dated 13 August 2024 which is addressed in particular to cl 6.7 of the LEP. In that document she gives reasons as to why the proposed development met the exceptional features criterion in cl 6.7(2)(b). These reasons went beyond those she had identified in the JER.
A written agreement was signed by the solicitors for the Spencers and the Council on 13 August 2024 recording that the Council had agreed to the Spencers amending their DA in accordance with certain identified documents, including the SEE Addendum, and the Council agreed to consent being granted and the Class 1 appeal being upheld. The parties subsequently provided the Court with a joint “Jurisdictional Note” outlining, for the purposes of s 34(3) of the LEC Act, why the orders agreed constituted a decision that the Court could have made in the proper exercise of its functions. The Note stated that in determining the appeal the Court was required to consider submissions made in respect of the DA, referred to such submissions being provided in a bundle of documents, and reminded the Court of the oral and written submissions made by Mr Joseph in the context of the conciliation conference. The Note recorded that the parties agreed that the proposed development satisfied cl 6.7(2)(b) of the LEP and listed 10 exceptional features of the site.
In her decision under s 34(3) Dickson C stated that “I accept on the basis of the reasoning in the [SEE Addendum], that the proposed development falls within the exception at subcl 6.7(2)(b)”, listing various exceptional features which she accepted collectively made the proposed works appropriate (at [4(16)]). She made the orders proposed by the parties.
Mr Joseph is dissatisfied with the outcome of the conciliation conference. On 7 November 2024 he filed in this Court a summons seeking judicial review of Dickson C’s decision giving effect to that agreement. The summons set out five grounds of review. Mr Joseph is a retired senior counsel who is representing himself.
One might have thought this a relatively anodyne judicial review matter of limited compass involving a relatively minor residential renovation. Yet disputes have broken out between the parties which belie that characterisation.
On 10 March 2025 Price AJA spent significant time hearing argument about various issues, occupying 36 pages of transcript. In the end his Honour was able to make consent orders by which, relevantly, certain parts of the summons seeking judicial review were struck out. A timetable was set which requires Mr Joseph to file any motion seeking to amend his summons by 16 May 2025, leading up to the matter returning to his Honour on 4 June 2025 for determination of any such motion.
As put in the Council’s written submissions before me, the grounds of review in the current version of Mr Joseph’s summons seeking judicial review following the orders made by Price AJA can be summarised as follows:
Ground 1: Absence of amendment to the DA; this is a legal argument that contends that following the original refusal of the DA by the Council, the Council was functus officio and had no power to approve an amendment to the DA;
Ground 2: Legally unreasonable, irrational and/or illogical: this contends that the Commissioner’s findings on clause 6.7 of the Kiama Local Environmental Plan 2011 (KLEP) were not reasonably open. Clause 6.7 relates to development in the foreshore building area;
Ground 3: Failure to form the requisite opinion of satisfaction: this contends that the Commissioner failed to be satisfied of certain matters under clause 6.7 of the KLEP;
Ground 4: procedural fairness: this ground contends that (although not a party to the proceedings) the Applicant was denied procedural fairness in the making of the decision to grant the Consent;
Ground 5: [constructive] failure to exercise jurisdiction: this contends that the Court failed to consider certain mandatory relevant considerations.
The motion that is now before me was filed by Mr Joseph on 4 February 2025. He seeks an order that the Spencers and the Council produce to the court, and he be granted access to, “all documents, not already produced, and which were sought in notices to produce for inspection dated 18th November 2024”. The documents in question are ones which the Spencers and the Council have each identified in a schedule of documents and over which they claim client legal privilege along with the protection afforded by s 34(11) of the LEC Act (the disputed documents).
Mr Joseph read five affidavits on the motion, a number of which annexed extensive materials. He has put hundreds of pages of materials before me. On 17 March 2025 the Registrar directed him to provide “a list of paragraphs in his affidavits and annexures thereto on which he relies in relation to the motion … by 21 March 2025”. He failed to do so. In his first written submission he listed four affidavits on which he relied, but that did not comply with the letter or spirit of what he had been directed to do.
Mr Joseph relied on two written submissions, together constituting 46 pages. These submissions are rather repetitive and in places somewhat difficult to follow. In some instances they also seem to have been overtaken by developments, each submission having been filed prior to the respondents’ written submissions. I have taken Mr Joseph’s written submissions into account, but I understood that his primary concerns were those outlined in his oral submissions (noting that he spent some 1.5 hours addressing me in submissions) and it is those on which I will focus.
The Spencers read two affidavits of their solicitor. The Council read one affidavit of its solicitor. Mr Joseph sought leave to cross-examine each solicitor, which I refused for reasons given on the day. Even without cross-examination, the hearing commenced around 11:30am and finished at 4:15pm, taking up some 3.5 hours of hearing time.
Mr Joseph does not dispute the accuracy of the schedules of disputed documents. No party sought that I review the documents myself (which have been produced in sealed form to the Court), although all parties indicated that it was open to me to do so if I considered it necessary. I have not found it necessary to do so, other than in one respect identified below at [75].
It was not entirely clear to me whether or not Mr Joseph disputed that client legal privilege originally attached to the disputed documents set out in the parties’ schedules. His written submissions had indicated that he did not accept the claims of privilege, but the respondents’ claim of client legal privilege seemed to have been somewhat refined subsequently to him filing his first submissions. Mr Joseph did not address me on the issue orally, where he did address me on his argument that the s 34(11) protection did not apply to various of the disputed documents in the way that the respondents claimed. The respondents’ claims are supported by an affidavit from each of the Spencers’ and the Council’s solicitors.
So it goes to the manner of conduct by the first and second respondent’s solicitor and the involved - and the consent to what I’ve called in submissions non-compliance, coming from the council. And that it’s more likely than not you’ll be satisfied that there was agreements, informal maybe, that there will be no hearing because the things go - the matter will settle beforehand.
The disputed documents were identified by the respondents in answer to notices to produce issued by Mr Joseph under r 21.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The Council noted in its written submissions that the notices were arguably objectionable on the basis that they were seeking discovery in a manner exceeding the scope of that rule. However, neither party objected on that basis.
Rule 21.10(1)(b) provides that one party may require another to produce to the first party any “specific document or thing that is clearly identified in the notice and is relevant to a fact in issue”. A document or thing that is “relevant to a fact in issue” is defined in r 21.9 to mean one that:
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.
[65] It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are “apparently relevant” or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. …
There was no argument directed to whether or not it is correct that principles relating to setting aside a subpoena for being an abuse of process involves the same notion of relevance as required by the specific terms of rr 21.9-21.10. Given the way in which all parties proceeded, I will treat what was said in Blacktown as giving appropriate guidance (without deciding that to be so).
Mr Joseph identified the relevance of the disputed documents as follows:
There was a mention today about a forensic - it’s not forensically relevant, but, with respect, as I say, your Honour, the - and, and as the Court says in the Secretary of Planning, it doesn’t need to be proved that one would even be able - have to be able to admit the document you’re seeking. It could be, it could be a line of, a line of fact that is developing which on its own might not be admissible, but when considered in conjunction with other material is relevant.
And the relevance here is, your Honour, with respect - which you’re not dealing with today, I appreciate, but is referenced in the, in the affidavits is the submission that the parties committed an abuse of process. Not the Court, not the Commissioner, but the parties engaged in abuse of process. Now, the evidence that I - you have - is now before you and I’ll take you to is - and in the submissions relates to, firstly, orders of the Court not being obeyed and, secondly, practice note failures being ignored.
Now, they are the, the two core failures that is part prima facie evidence of an abuse.
At the moment the only formal document identifying what is at issue in the proceeding is the summons seeking judicial review, as it currently stands following the orders made by Price AJA. The respondents have not yet filed “a response stating whether the [respondent] opposes the relief sought and, if so, on what grounds”, as required by UCPR rr 51.45(1A) and 59.6. Such responses might expand what is at issue. For the present, however, the relevance of the documents sought must be judged by reference to the matters put in issue in the summons. Mr Joseph submitted that he should not be held to what is raised in that document when he has foreshadowed further amendments. I reject that argument. That Mr Joseph may wish to put further matters in issue is not the same thing as them being in issue.
The sort of abuse of process arguments Mr Joseph wishes to make appear to involve serious allegations, seemingly extending to saying that the respondents having deliberately misled the LEC. As the respondents noted, Mr Joseph’s written submissions are replete with references to abuse of process, abuse of power, misconduct, collusion and the like. Such allegations must not be made lightly, and a litigant must have a proper basis for making such claims before asserting them under privilege. Thus Mr Joseph must first have some evidence warranting such claims being made before setting them out in any amended summons. He cannot use r 21.10 to go searching for such evidence in order to be able to make them.
There are three overlapping reasons why I do not accept that the disputed documents are apparently relevant even in the sense explained in Blacktown. First, the decision impugned in the summons is that of the Commissioner in the LEC in accepting and giving effect to the parties agreed resolution of the Class 1 proceedings. It is not the decision of the Council in changing its position at the conciliation conference. Yet that seems to be the focus of Mr Joseph’s justification (“Not the Court, not the Commissioner, but the parties engaged in abuse of process”). I asked Mr Joseph if he was seeking to challenge the decision of the council to enter the consent agreement. He answered: “Yes, indeed”. When it was pointed out that that was not alleged in the summons, he said “it’s premature ... to require me to rely on the summons … that I have already indicated I wish to amend”. That assertion reverses the proper approach.
Second, in general the evidence relevant to a judicial review case does not extend beyond the material that was before the decision-maker. As Gordon J explained in MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 (citations omitted):
[10] The resistance to the admission of fresh evidence in judicial review proceedings is well established by the authorities. The function of judicial review is a process by which legal error might be corrected, leaving the primary decision maker as wholly responsible for determining questions of fact or the merits of any application. The danger in acceding to a request to admit further evidence on review is that the court will necessarily need to revisit findings of fact.
There are some categories of case where such evidence may be admissible: see the discussion by Neil Williams SC and Alan Shearer in “Evidence in Public Law Cases”, Ch 9 in Neil Williams (ed), Key Issues in Judicial Review (2014, Federation Press). However, the current grounds do not appear to fall within those categories, at least not to the extent of making relevant material that was held by the respondents but not put before the Court for the purposes of the Commissioner making the impugned orders. I do not understand it to be in dispute that Mr Joseph already has the documents which were presented to the Commissioner for the purposes of her s 34(3) decision giving effect to the parties’ agreement.
Third, taking account of the particulars struck out by consent, the summons seeking judicial review does not set out the serious allegations which Mr Joseph invoked as the basis for seeking the documents.
The disputed documents are not relevant to any fact currently in issue. That conclusion is a sufficient basis to dismiss Mr Joseph’s motion.
The waiver arguments, as I understood them, were focused on correspondence involving the experts along with final or draft reports of the parties’ experts (if any such documents exist). Mr Joseph argued that privilege had been waived because of the following:
In the context of Mr Joseph’s application to join the Class 1 proceedings, he had been provided with the Council’s Statement of Facts and Contentions (SOFAC) filed in the Class 1 proceedings. He asserts that the content of that document was heavily influenced (if not authored) by Mr Ryan, the expert retained by the Council. The provision to him or the LEC of the SOFAC is said to be a waiver with respect to the documents sought.
The experts retained by the Spencers and the Council had each bound themselves to the Expert Code of Conduct, as they had stated in the JER (see above at [16]). He argues that this “carried with it implied waiver of itself in respect of … the instruction documents and the correspondence between the experts and … the Council and the Spencers’ solicitors”.
The Spencers and the Council had provided the JER to the LEC for the purposes of seeking approval under s 34(3) of their agreement, and the Commissioner referred to it in her decision at [4(14)].
Mr Joseph did not develop his waiver arguments in any detail, but I understood him to be asserting that each of the above steps involved the other parties acting inconsistently with maintenance of client legal privilege, including by either knowingly and voluntarily disclosing the substance of the evidence to another person, or disclosing that substance with the express or implied consent of the client: see s 122(2)-(3) of the Evidence Act, and eg GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266 at [57].
As to the first argument, I am prepared to assume that the content of the Council’s SOFAC was influenced, perhaps to a significant extent, by the views of Mr Ryan (as seems to be suggested in Spencer No 1 at [37]). As explained above, Mr Ryan seems first to have been contacted by the Council around 31 May 2024, and formally briefed on 11 June 2024. The SOFAC was filed on 14 June 2024. Importantly, however, the SOFAC was the Council’s document, not Mr Ryan’s. It set out the Council’s position for the purposes of the litigation. It did not state or imply anything as to Mr Ryan’s views, even if an informed observer might speculate that it had been influenced by such views. The document does not refer to Mr Ryan, let alone say anything as to what his evidence would be.
That the contents of such a document may in fact have been informed by the views of a retained expert does not establish of itself that the document should be understood as disclosing those views, or the substance of the evidence, such that there is any inconsistency between providing the document and maintaining the privilege. Equally, the content of such documents – or pleadings and the like – would likely be influenced by legal advice provided by a party’s lawyers. That does not mean that the service and filing of the document waives privilege with respect to that legal advice.
[53] The question is not merely whether it could be said that the privileged materials were used in such a way that they could be said to influence the content of the report, but whether it could be said that they influenced the content of the report in such a way that the use or service of the report would be inconsistent with maintaining the privilege in those materials, such as, where it would be unfair for the party to rely on the report without disclosure of those materials. Where an expert’s report is submitted to a party’s legal advisers so as to be put into a form which will ensure that it is admissible, it can be said that the privileged communications between the expert and the lawyers have influenced the content of the report, in the sense of its form, although not in the sense of the formulation of the substantive opinions expressed by the expert. Likewise, privileged communications between an expert and the party’s lawyers whereby material information is provided to the expert in the form of assumptions or documents may well influence the content of the report. However, an expert’s report is required to state what material and assumptions are relied on. Use of a final report, which refers to such materials and assumptions, is not inconsistent with maintaining confidentiality in the communications which produced the final product.
His Honour was considering the previous iteration of s 122 of the Evidence Act but, as Ball J later explained, his explanation can be taken also to be applicable to the current version of the provision: see Traderight (NSW) Pty Ltd (ACN 108 880 968) v Bank of Queensland Limited (ACN 009 656 740) (No 14) [2013] NSWSC 211 at [21]. The parties accepted that this test applies.
The JER states that in “making their assessments the experts have had reference to the following documents”, then listing certain documents, which documents are available to Mr Joseph. The JER does not refer to any previous final or draft reports produced by any of the experts, nor to any letters of instruction or the like. No doubt the views expressed in the JER were ones that had evolved over time, which may have been influenced by a range of past discussions and inputs. But, as White J explained, of itself that does not suffice to waive privilege. The JER identifies the documents relied upon. There is no reason to infer that any other documents were of such significance in influencing the content of the report that it would be inconsistent for the Spencers and the Council to maintain privilege in their previous communications with their experts having made use of the JER in the LEC proceedings.
As for the SEE Addendum prepared by Ms Bartlett, much the same analysis applies. Mr Joseph did not identify any documents referred to there to which he does not have access.
Client legal privilege was not waived in the manner asserted by Mr Joseph.
125 Loss of client legal privilege: misconduct
(1) This Division does not prevent the adducing of evidence of—
(a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, or
(b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.
(2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that—
(a) the fraud, offence or act, or the abuse of power, was committed, and
(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power,
the court may find that the communication was so made or the document so prepared. …
Mr Joseph relies on the provision to argue that privilege has been lost by the Spencers and the Council, in essence because he says that “the parties committed an abuse of process” in the way in which they acted in the lead up to the application to the Commissioner to approve their agreement under s 34(3) of the LEC Act. His main bases for making that allegation were as follows:
The Spencers failed to comply with the Court’s practice note and orders by failing to file a SOFAC. Mr Joseph seemed to suggest that the Council had colluded with the Spencers in not complaining of this failure. As explained above at [11], there was no obligation on the Spencers to file a SOFAC. This argument need not be further considered.
Mr Joseph was never told that cl 6.7(2)(b) of the LEP would be relied upon by the Spencers, and he was not given the JER in which this possibility was (he said) raised for the first time. After the possibility had been raised he said the parties “colluded to keep that out of sight”. These failures were contrary to the way in which the parties had presented their case to Robson J in resisting his application to be joined to the LEC proceedings, and were contrary to his Honour’s statement in the judgment that “Council must, of course, keep Mr Joseph informed of the conduct of the matter”: Spencer No 1 at [40]. Mr Joseph also seemed to argue that Ms Bartlett did not assert even in the JER that the site had exceptional features, but that argument seems to misunderstand what she is recorded as saying in that document – where she did identify two exceptional features – and this aspect of the argument need not be further considered.
Mr Joseph sent an email to the Council’s solicitor on 29 July 2024 asking to be advised in respect to any amendments to documents lodged with the Council for approval. The next day, 30 July, at 9:50am a lawyer employed by the Council’s solicitor responded saying “Council is not in receipt of any amended plans, nor have any amendments to the section 4.6 variation [missing word] or statement of environmental effects been proposed by the Applicants at this stage”. I interpolate that the words “at this stage” obviously contemplate the possibility that such amendments might yet be received. No promise was made to supply any such materials if and when received. The same lawyer sent another email a minute later (ie at 9:51am on 30 July 2024), responding to a different email from Mr Joseph, saying that the joint report of the experts “has not yet been filed in these proceedings”. The partner acting on the matter was cc.ed on both emails. Mr Joseph asserts that the statement in the first email was false, because he says the JER had been completed and received by the Council by then, and annexed to that document were some proposed amended plans. He says the reference in the second email to the JER not having been filed implied that it had been received. The timing was significant because his application for joinder to the proceedings was to be heard by Robson J on 31 July 2024.
does not require the court to be satisfied on the balance of probabilities as to the existence of the fraud or abuse of power, or the connection between the communication and the furtherance of the fraud or abuse of power. Nevertheless, findings as to these matters must be based on evidence.
Thus it is not sufficient that the allegations are made. Rather, “there must be something to give colour to the charge” or, put another way, there must be “some prima facie evidence that it has some foundation in fact”: Stanizzo at [33] (citations omitted).
I am certainly not so satisfied here on the basis of the material on which Mr Joseph has relied. To begin with, as counsel for the Spencers submitted, there is nothing surprising or inherently suspicious about the fact that the Council’s position changed after it had filed its SOFAC. The Spencers’ position had moved in response to concerns raised by the Council and its expert in the proceedings, Mr Ryan. So much was reflected in the new options discussed in the JER, after which there was some further movement. Notably, the net result was that the Spencers’ proposed balcony did not extend so far out from their house, and it widened out at a spot further away from Mr Joseph’s property.
Turning then to Mr Joseph’s second argument, I am prepared to accept for current purposes that he did not know that the Spencers might rely on cl 6.7(2)(b) of the LEP – as opposed to cl 4.6 – to justify their proposed development. But parties’ positions may evolve as litigation progresses. That possibility was no doubt one of the reasons Mr Joseph wished to be joined as a party to the proceedings. He had had previous disputes with the Council, and he made his distrust of the Council clear to Robson J: see Spencer No 1 at [19]-[20].
The Spencers and the Council did submit to Robson J that “the Court would be comfortably satisfied that those matters now raised by Council (including the contention in relation to permissibility) are to be maintained”: ibid at [26], see also [27]. And one his Honour’s reasons for refusing joinder was that “I have little doubt that the essential matters which he wishes to raise are otherwise raised in Council’s contentions noting, that these are contentions which Council maintains would effect the refusal of the Class 1 appeal”: ibid at [33]. Yet his Honour was not thereby suggesting that the Council could not change its position. On the contrary, he noted that the Council had retained an independent planning expert: at [37]. And at [39] he alluded to the possibility that the matter might not proceed to hearing after the conciliation conference, thus recognising the obvious chance of compromise. Indeed, the Council was obliged to be open to that possibility as s 34(1A) of the LEC Act imposes a duty on parties to participate “in good faith” in the conciliation conference.
Along with joinder, Mr Joseph had also sought an order that he be given access to expert reports and plans relied upon by the parties. Robson J declined to make such an order:
[40] I do not intend to make an order … that the primary parties’ expert reports be made available to Mr Joseph and his expert. Council must, of course, keep Mr Joseph informed of the conduct of the matter but whether reports are made available to him is a matter for the parties.
Mr Joseph complained that the Council had not kept him informed of the conduct of the matter because it had not told him of its change of position in the conciliation conference prior to the Commissioner making her s 34(3) decision. His Honour’s reference to keeping Mr Joseph informed has to be understood in the context of what his Honour said in the preceding paragraph, namely that “Mr Joseph will be kept informed in relation to the outcome of the conciliation”. His Honour did not indicate any time frame as to when Mr Joseph had to be told of the outcome. And no order was made to that effect. I understand his Honour simply to refer at [39] and [40] to the unsurprising proposition that Mr Joseph was entitled to learn of the outcome of the proceedings. That understanding is reinforced by the fact that his Honour declined to order that the parties provide him with the materials he had sought.
Where Mr Joseph sees conspiracy and collusion, the evidence suggests to me that the Class 1 process operated just as intended. There was a dispute about some relatively minor proposed residential alterations. The parties’ experts met and a conciliation conference was held. In these ways the applicants and the Council were brought together, compromises were made, and they resolved their differences.
As to Mr Joseph’s third complaint, I am not persuaded that the evidence establishes some reasonable foundation for the charge that the statement by the Council’s lawyer about not having received amended plans, made at 9:50am on Tuesday 30 July 2024, was false. There was no dispute that the parties’ solicitors were not supposed to communicate with their experts – at least about substantive matters – whilst they were undertaking the conclave process. As noted above, the signature block of the JER is dated 30 July 2024. The fact that the footer of the document also shows the date of 29 July may suggest that that was when the document was first created, or there may be other reasons for that anomaly.
The evidence does not disclose when the JER was sent by the experts to the parties’ solicitors. The Council did not file it until 10:17am on 1 August 2024, some two days after the emails in question had been sent. The evidence includes the Council’s initial listing of the documents over which privilege was claimed (being Annexure A to the affidavit of Ms Kara Mezinec made on 27 March 2025). That listing indicates that no emails were received by the Council’s solicitors on 30 July from Mr Ryan until 1:36pm, after the impugned emails had been sent. The schedule indicates that there was another email sent from Mr Ryan at 5:32pm on 29 July 2024, but given that that is prior to the final date on the JER it does not suggest that Mr Ryan was then sending the report through.
There is simply no evidence which provides any meaningful support for the serious allegation that the lawyer employed by the Council’s solicitor lied in his email sent at 9:50am on 30 July 2024. The fact that the email of 9:51am said that the JER “has not yet been filed” does not of itself imply that the report had been received.
34 Conciliation conferences
…
(10) If an agreement is reached between the parties and proceedings are being dealt with under subsection (3), any document signed by the parties is admissible as to the fact that such an agreement has been reached and as to the substance of the agreement.
…
(11) Subject to subsections (10) and (12)—
(a) evidence of anything said or of any admission made in a conciliation conference is not admissible in any proceedings before any court, tribunal or body, and
(b) a document prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body.
(12) Subsection (11) does not apply with respect to any evidence or document if the parties consent to the admission of the evidence or document.
Section 34(11) is in materially the same terms as s 30(4) of the Civil Procedure Act 2005 (NSW), which creates privilege with respect to court ordered mediations (note Lewis v Lamb [2011] NSWSC 873 at [15]).
The Spencers and the Council seek to resist production of various documents on the basis of s 34(11) of the LEC Act. Six sub-issues arise, relating to whether:
the provision enables production (as opposed to admission) of documents to be resisted;
the purpose referred to in the provision must be the dominant purpose;
the protection applies to documents produced for the purposes of s 34(3);
the documents here were prepared for the relevant purpose;
the protection has been waived (and, implicit in that, whether waiver is relevant here and, if so, how it is to be assessed); and
the provision applies where it is used to “cover for misconduct”.
In terms, s 34(11)(b) is only directed to the admissibility of documents in evidence, and not to their production.
Mr Joseph originally sought production of the documents pursuant to a notice to produce issued under r 21.10 of the UCPR. Rule 21.11 provides that “[u]nless the court orders otherwise”, the party subject to the notice must produce within a reasonable time for the issuer’s inspection “such of the documents or things referred to in the notice (other than privileged documents)” (emphasis added). A “privileged document” is defined in the Dictionary of the UCPR to mean “a document that contains privileged information”. And “privileged information” is defined in turn to mean:
any of the following information—
…
(h) information—
(i) the disclosure of the contents of which, or
(ii) the production of which, or
(iii) the admission or use of which,
in the proceedings would be contrary to any Act (other than the Evidence Act 1995) or any Commonwealth Act (other than the Evidence Act 1995 of the Commonwealth),
but does not include information that the court declares not to be privileged information for the purposes of those proceedings.
Thus information rendered inadmissible by any other State Act, such as the LEC Act, is privileged. And thus, pursuant to r 21.11, the Spencers and the Council were not required to produce for Mr Joseph’s inspection documents which were privileged because they contained information which would be inadmissible because of s 34(11).
What is actually now before the Court is Mr Joseph’s motion seeking an order that the Spencers and the Council produce to the Court all documents sought in the notices not already produced. On one view this is simply a means of crystallising the dispute as to whether privilege applies in relation to the documents the subject of the notices to produce. On another view, Mr Joseph is seeking a new court order for production of that material to this Court. On that latter understanding, r 1.9 of the UCPR is relevant:
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,
…
(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.
(4A) If a document is produced, and a person objects to the production of the document on the ground that the document is a privileged document, access to the document must not be granted unless and until the objection is overruled.
This rule applies to where a court orders a person to produce a document to the court, and enables the person to object on the basis that the document is privileged. The same definitions of “privileged document” and “privileged information” apply, leading to the same conclusion: note similarly McMillan v Taylor [2023] NSWCA 157 (McMillan v Taylor No 1) at [18]-[20] (Payne JA).
Thus regardless of which of the two possible pathways to production applies here, the protection from admissibility afforded to documents by s 34(11) extends to protect documents covered from being required to be produced for inspection.
Section 34(11)(b) states that “a document prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, or any copy of such a document, is not admissible in evidence”. Payne JA indicated in McMillan v Taylor No 1 at [13], albeit without exposition, that in his view the reference to purpose should be understood to mean the dominant purpose. I agree.
In terms of text, the provision refers to the purposes, not to a purpose or “purposes including”. That language tends to suggest it is the actuating purpose for the creation of the document which is relevant. That understanding is consistent with the fact that the provision also extends to documents prepared “in the course of, or as a result of, a conciliation conference”. That causal understanding is consistent with a dominant purpose test: note Esso Australia Resources v Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67 at [58].
In terms of purpose and context, there is a spectrum with respect to how significant a purpose must be in order to be taken into account. At the restrictive end of the spectrum the issue would be whether the purpose in question was the sole purpose of the person preparing the document. At the other end of the spectrum one would look to whether it was a purpose, amongst other purposes, of the creator.
In Jireh International Pty Ltd (t/as Gloria Jean*’*s Coffees) v Western Export Services Inc (No 2) [2011] NSWCA 294, Macfarlan JA, speaking for the Court, said the following of s 30(4) of the Civil Procedure Act:
[44] In my view the court should not take a narrow approach in considering what is a discussion “in a mediation session” or “within the mediation” for the purposes of s 30 [C**ivil Procedure Act] or mediation or confidentiality agreements of the type applicable here. The provisions containing these expressions are designed to encourage full and frank settlement discussions between parties and it has long been accepted that resolution of disputes by compromise, whether facilitated by mediation or not, is in the public interest. It would conflict with this policy to confine confidentiality protections within narrow bounds.
Section 34(11) of the LEC Act shares that settlement-promoting purpose, consistently, too, with the settlement privilege established by s 131 of the Evidence Act. That does not mean that the public interest in promoting settlement discussions is to be achieved at all cost. The protection afforded by s 34(11) can be understood to manifest a balance between the competing public interests of on the one hand allowing free exchanges in a conciliation conference so as to promote the possibility of resolving the dispute, and on the other allowing relevant evidence to be used in proceedings. Looking to the dominant purpose – somewhere in the middle of the spectrum identified – achieves a reasonable balance between these imperatives: note analogously Esso at [35] and [57]-[61].
That understand is supported by the terms of s 34(12). That provision indicates that the protection does not apply “if the parties consent to the admission”, implying that all parties must consent. Many documents would be prepared by a party for use both in a conciliation conference and, if that failed to resolve the dispute, in the subsequent determination of the proceedings. That practical reality is reinforced by s 34AA(2) of the LEC Act which provides, first, that conciliation conferences are mandatory in Class 1 proceedings and, second, that if the dispute is not resolved by agreement then the Commissioner presiding must go on to dispose of the proceedings with a hearing held forthwith or, if the parties consent, based on what has occurred in the conference. Expert reports or witness affidavits would thus commonly be prepared for the purpose of employing them in both processes. It seems most unlikely that the Parliament intended that one party would not be able use their own expert report or affidavit, or such like, in a subsequent hearing unless the other side consented.
In McMillan v Taylor No 1 Payne JA held that some expert reports had been prepared for the dominant purpose of the conciliation conference. That was simply a finding on the facts on the materials before his Honour: see at [14].
it would be remarkable that … you have a public process … in which decisions are made, but you can – once there’s been disclosure in that public process – a privilege still is able to be maintained. I mean … it makes folly … of open justice … and quite frankly … the statute that would not have intended that. What the statute intended was there could be free discussion in the conciliation conference.
In substance I agree with the points just quoted. Pursuant to s 34(10), any agreement between the parties is admissible. That does not address any revised plans or other planning documents which crystallise the jointly proposed development consent proposed. Nor does it address any documents seeking to establish that the consent is one the Court could have ordered in the proper exercise of its functions, such as any expert material or documents in the nature of a submission such as the joint jurisdictional note provided here.
When a commissioner is asked to make a decision under s 34(3) they are engaged in a decision-making exercise involving public power. That is a step beyond trying to bring the parties together to resolve their dispute. It leads to a decision which itself will be made public. It is not consistent with the public aspect of that process for the material presented to the commissioner for that purpose to be treated as covered by the s 34(11) protection.
However, that does not mean that the privilege cannot apply to documents produced after the parties have reached agreement, as Mr Joseph argued. Section 34(11)(b) extends to documents prepared “as a result of” a conciliation conference. Those words cannot be taken too literally. It cannot sensibly have been intended, for example, that documents which delineate what development is being granted consent cannot be admitted in any subsequent court proceedings – whether about the consent or, say, a building dispute – simply because they resulted from agreement reached between the applicant and the original consent authority in a conciliation conference.
Nevertheless, those words must have some work to do. Even after the parties have agreed that development consent should be granted, it may well be the case that further interaction and negotiation is required in order to resolve all the details and documents which are to be presented to the presiding commissioner for the s 34(3) determination. It is consistent with the text and purpose of s 34(11) that the protection continues to apply to documents produced for the ongoing discussions. The protection ends, in my view, when it comes to the final versions of documents presented to the commissioner for the purpose of seeking a decision under s 34(3).
The Spencers’ schedule of documents identifies 17 documents for which the s 34(11) protection is claimed. The affidavit supporting the schedule prepared by the Spencers’ solicitor, Mr John Merlino, says that these documents were “for the purpose of the conciliation conference between the parties in the LEC proceedings”. He does not say that that was the dominant purpose, in contrast to what he says about the documents for which client legal privilege is claimed. Nor did the solicitor for the Council say as much with respect to the Council’s s 34(11) claim. To be fair, however, both solicitors did use the words employed in s 34(11). In any event, I am satisfied from the evidence and the Spencers’ schedule that 16 of the 17 documents in question are covered by the s 34(11) protection.
All of those 16 documents are emails, with some having attachments. For 15 of those 16 documents in the “Author/recipients” column in the schedule is listed just the solicitors for the Spencers and the Council, and for the 16th there is also listed Mr Smith (the Spencers’ architect) and a Mr Chris Errington, who I infer to be some other kind of consultant on the proposed development. It is useful then to address the emails chronologically (noting that some of the emails are identified as including earlier emails in the chain):
Two of the emails were sent on 7 August 2024 and are described as relating to “Respondent’s s 34AA bundle of documents”. Those emails can readily be inferred to have been created for the dominant purpose of undertaking the conciliation conference.
Two of the emails were (last) sent on Friday 9 August 2024, which was after the JER had been received and was the business day before the conciliation conference began. Both of these related to “draft conditions of consent” and one also related to a “notice to produce”. I infer that the parties were already engaged in discussions as to possible terms of a resolution, looking forward to the conciliation conference. That is sufficient to fall within the statutory protection.
Eleven of the emails were sent on 13 August 2024, being the second day of the conciliation conference. From their timing and description it can readily be inferred they were created for the dominant purpose of seeking to settle the proceedings through the conciliation conference. Some of the emails refer, for example, to the “draft jurisdictional statement and conditions of consent”. As discussed above, in my view it is only the final version of such documents which are not covered by the protection in circumstances such as the present. And Mr Joseph has the final versions of the documents relied upon for the purposes of the s 34(3) decision.
The one document that I am not persuaded is covered by the protection is document number 3 in category 11, dated 9 August 2024, which is identified as “without prejudice view impact analysis prepared for s 34 conference”. In the “Author/recipients” column for this document is listed simply “Digital Line”. I infer this to be a document presenting how the proposed development would appear if completed. It is likely that such a document would have been created for the dual purposes of use in the conciliation conference and, if that was not successful, in the Commissioner’s determination of the dispute. As such, it is not covered by the protection.
Mr Joseph argued that if the s 34(11) protection did apply to the disputed documents then it had been waived. Section 34 does not address waiver in terms. However, s 34(12) states that the protection does not apply “with respect to any evidence or document if the parties consent to the admission of the evidence or document”.
Prior to the amendment of s 122 of the Evidence Act in 2007, waiver of client legal privilege under that Act was addressed as a matter of express or implied consent: see eg Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297 at [24]-[48]. It may be that similar analysis could apply here, albeit in this context it would be necessary to consider whether both parties had impliedly given consent by their conduct.
However, it is not necessary for me to determine the legal issue. As I understood Mr Joseph’s arguments, he asserted that the s 34(11) protection had been waived for the same reasons that client legal privilege was waived. As I have found that there was no such waiver, that answer suffices to also reject his equivalent argument with respect to s 34(11).
My conclusions with respect to the s 34(11) arguments are as follows:
Although the provision is directed to admissibility of evidence, it also enables production to be resisted in relation to a notice to produce issued under r 21.10 of the UCPR or an order sought directly from a court.
The reference in s 34(11)(b) to “a document prepared for the purposes of … a conciliation conference” means a document produced for the dominant identified purpose.
The protection does not extend to the final versions of documents presented to the commissioner for the purpose of seeking a decision under s 34(3).
Insofar as arguments are available that the protection given by s 34(11) can be waived or lost for the sorts of reasons identified in s 125 of the Evidence Act – points it is unnecessary to decide here – then those arguments would not defeat the claim for protection here.
Mr Joseph’s attempt to overturn the claims by the Spencers and the Council to protection from production of various identified documents pursuant to s 34(11) is not made out, save in relation to one document of the Spencers. However, even production of that document is not required given that none of the documents are relevant to any matter currently at issue in the proceedings.
The applicant’s motion must be dismissed. Mr Joseph submitted that costs should “await the conclusion of the appeal”, presumably referring to the conclusion of the judicial review application. Given the distinct nature of the argument I see no reason why costs should not follow the event. Each of the Spencers and the Council had a legitimate interest in resisting production of the documents sought. Moreover, the resources directed by Mr Joseph to the prosecution of this motion have been disproportionate both to what was raised by his motion and the overall nature of what is at issue in the proceeding. No doubt significant costs have been incurred by the Spencers and by the Council in responding to the voluminous material provided by Mr Joseph in support of his motion. Those matters have reinforced my conclusion that they should have their costs.
The orders of the Court will be as follows:
The applicant’s motion filed on 4 February 2025 is dismissed.
The applicant is to pay the respondents’ costs of the motion.
The material provided to the Court by the Spencers and the Council over which privilege was claimed is to be returned to their respective solicitors.
**********
Joseph
Spencer [2025] NSWCA 80
(1997) 188 CLR 501
(2019) 367 ALR 256
(1999) 201 CLR 49
(2023) 111 NSWLR 634
The motion filed on 4 February 2025 was dismissed. The applicant was ordered to pay the respondents’ costs of the motion. Material provided to the Court by the Spencers and the Council over which privilege was claimed was to be returned to their respective solicitors ([109]).
As noted above, Mr Joseph sought to cross-examine those solicitors. When asked to explain the topics on which he wished to cross-examine the Spencers’ solicitor, he did include the topic of “as to what purpose … various documents were produced”. However, in the context of his explanation I understood him to be referring to his allegations of collusive abuse of process and the like. Thus he summarised his proposed cross-examination of the solicitor as addressed to the following:
As to the second argument, the expert witness code of conduct in Sch 7 of the UCPR (the Code) notably provides that such a witness is “not an advocate for a party” and has “a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the court impartially on matters relevant to the area of expertise of the witness” (cl 2). Clause 3 of the Code sets out certain requirements in relation to the content of expert reports in the sense of what must be addressed and in what way. Those requirements include that the report disclose the assumptions and material facts on which each opinion expressed in the report is based and the reasons for, and any literature or other materials utilised in support of, each such opinion. Clause 4 imposes a duty on an expert witness to provide a supplementary report if they change their opinion on a material matter. Clauses 5 and 6 impose duties on such witnesses with respect in particular to joint conferences with other experts.
Were Mr Joseph’s argument to be accepted it would seem to have the consequence that privilege would not exist with respect to any Code-compliant expert report, even if not filed or served by the party who had obtained it. That would be a surprising result in this jurisdiction (cf Uniform Civil Procedure Rules 1999 (Qld), r 212(2)).
In any event, an expert’s agreement to abide by the Code’s requirements – which agreement is required by cl 3(1)(b) of the Code – does not of itself disclose the substance of an expert’s evidence, let alone prior drafts or communications. There is no necessary inconsistency between an expert agreeing to be bound by the Code, even in a document which has been relied upon in court, and the party maintaining privilege in relation to prior drafts or communications. The fact that an expert has agreed to be bound by the Code does not of itself establish waiver in relation to such materials. That is not to suggest that the Code could not be relevant to certain types of waiver arguments, including with respect to suggestions that the expert has changed their view following communications with the party’s lawyers, or in relation to any supplementary report prepared by an expert in accordance with cl 4 of the Code. It is not necessary to address such issues here. Mr Joseph’s argument, as I understood it, was founded upon the experts’ stated acceptance of the Code per se. It was not suggested there was any supplementary reports by any expert.
As to the third argument, the fact that the Commissioner referred to the JER in Spencer No 2 at [4(14)] makes clear that the document had been provided to her and relied on by the parties for the purpose of seeking to persuade the Commissioner that orders should be made giving effect to their agreement. The SEE Addendum prepared by Ms Bartlett was also provided to the LEC, and was one of the documents which identified the development being approved. It is not apparent that any other expert material had been provided to the Court. As noted above at [14]-[15], it is not apparent whether or not the parties’ experts provided their instructors with a written report in either draft or final form.
In New Cap Reinsurance Corporation Ltd (In Liq*) v Renaissance Reinsurance Ltd* [2007] NSWSC 258, White J addressed the issue of waiver of privilege with respect to draft expert reports when a final version of the report has been relied upon (emphasis added):
I note that Mr Joseph’s argument cannot currently succeed as the alleged abuse must be “a fact in issue” in the proceedings. As already explained, there is no such allegation in the current version of the summons seeking judicial review. Nevertheless, consistently with the parties’ request that I resolve the privilege issues, I will go on to consider whether privilege would have been lost if such an allegation had been articulated in Mr Joseph’s proposed amended summons.
For current purposes I will assume (without deciding) that an abuse of process of the kind alleged by Mr Joseph is an abuse of power of the kind identified in s 125(1)(b). Such an abuse must have been deliberate, which requires that “the client know that the acts in question are an abuse of power, not merely that the client unknowingly but deliberately commit acts that constitute an abuse of power”: Kang v Kwan [2001] NSWSC 698 at [37(10)]; approved Van Der Lee v State of New South Wales [2002] NSWCA 286 at [24], [61] and [68]. At issue is both whether such an abuse was committed and whether the documents sought were prepared in furtherance of that abuse. Such findings are not lightly made. For current purposes the question, pursuant to s 125(2), is whether there are reasonable grounds for so finding. The onus of proof is on Mr Joseph: Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12; (2019) 367 ALR 256 at [33]. As the Court said in Stanizzo at [30], the provision:
However, in order to avoid any further controversy on this issue, I have reviewed the relevant emails in the Council’s privileged material dated 29 and 30 July 2024. This is the only respect in which I have reviewed the privileged material (I note that this necessitated me opening both of the sealed packets provided by the Council’s solicitors as they had been mislabelled as regards which folder was in which). My review confirms that the JER was received by the Council’s solicitors by email sent at 1:36pm on 30 July 2024, and no version of the JER nor any amended plans had been sent prior to the Council’s solicitors prior to that time on the two days in question.
Mr Joseph’s argument that client legal privilege in the documents in dispute has been lost pursuant to s 125 of the Evidence Act is not made out.
Turning then to the Council’s schedule of documents, leaving aside duplicates there are 10 sets of documents for which the s 34(11) protection is claimed:
One set, starting on 8 August 2024, involves listed emails between the parties’ solicitors in relation to a notice to produce issued by the Spencers’ solicitor, along with “draft without prejudice conditions of consent and provision of without prejudice documentation”. Given the timing and description, these emails can comfortably be regarded as falling with the s 34(11) protection.
One item listed is a letter from Digital Line to the Spencers’ architect dated 9 August 2024, which is described as “letter associated with photo montage provided for purposes of conciliation conference; photomontages provided for purposes of conciliation conference”. I infer that the Spencers’ solicitor sent this material to the Council. As stated above, this material is not covered by the s 34(11) protection as regards the Spencers. However, it is protected insofar as it is held by the Council, as it is apparent it was sent to the Council for the purposes of the conference. The fact that the Spencers may also have intended to use the material in any subsequent hearing if the conference failed does not alter the purpose of the creation and sending of that version of the document to the Council: see, analogously, Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; [1997] HCA 3.
All of the other documents are emails between the parties’ solicitors relating in one way or another to “without prejudice documentation”, including draft conditions of consent. Nearly all of these emails are dated 13 August 2024, though a small number were dated 14 August 2024. Again, it can comfortably be inferred that these were exchanges occurring for the purposes of the conciliation conference and trying to finalise an agreed resolution.
I am satisfied that all of the documents for which the Council has claimed the s 34(11) protection do fall within the scope of that provision.