On 4 April 2022 members of the Nazir family commenced a walk along the Wentworth Pass Track (the Track) in the Blue Mountains National Park in a south-easterly direction. At about 1:25pm on that day, a landslide or rockfall occurred adjacent to the Track. All but Avan Elena Alice Nazir were struck by debris from the landslide or rockfall. Mehraab Minoo Nazir and Zain Julian James Nazir were killed as a result of being struck by the debris. Mehraab was the husband of Anastasia Victoria Ruth Nazir and the father of Zain, Avan and Zahran Rex Haydn Nazir. Both Anastasia and Zahran were injured as a result of the landslide or rockfall. Avan was present and witnessed the death and injury of the other members of the family.
On 27 September 2023 Anastasia, Avan and Zahran commenced proceedings against the State of New South Wales. Anastasia does so as the widow of Mehraab and brings the action pursuant to s 3 of the Compensation to Relatives Act 1897 (NSW) for the benefit of herself and on behalf of Avan and Zahran. She also brings proceedings for personal injury. Zahran seeks damages for personal injury, and Avan brings an action for mental harm as a close family member of the deceased, of Anastasia and Zahran, within the meaning of s 30(5) of the Civil Liability Act 2002 (NSW).
Nazir v State of New South Wales [2024] NSWSC 1015 | Case summary | Zoe
The State of New South Wales is sued on the basis that it had the care and control of the Blue Mountains National Park through its agency the NSW National Parks and Wildlife Service (NPWS).
This judgment is concerned with a dispute between the plaintiffs and the defendant in relation to a number of subpoenas issued by the plaintiffs. On 20 October 2023 a subpoena was issued to the NSW Police seeking the following documents:
1. A copy of this subpoena and completed Notice of Declaration.
2. All documents held by NSW Police relating to the incident and subsequent investigation arising out of an accident involving the Nazir family on 4 April 2022 in the Blue Mountains, New South Wales. Including but not limited to:
a. Incident report;
b Police aerial and scene photos; and
c. Statement of William Baston (sic).
The Police produced documents on 15 March 2024 including statements of Jared Cox dated 5 May 2022, Monica Nugent dated 30 June 2022, Kate Mulligan dated 29 June 2022 and William Batson dated sometime in 2022. By a notice of motion dated 2 June 2024 the defendant seeks that access to those statements not be granted to the plaintiffs because the statements are subject to legal professional privilege held by the defendant.
Four subpoenas were filed and served by the plaintiffs as follows:
1. Subpoena to NSW Department of Planning, Industry and Environment (the Department) filed 25 October 2023 (the first subpoena);
2. Subpoena to NSW Department of Planning, Industry and Environment filed 6 February 2024 (the second subpoena);
3. Subpoena to NSW Department of Climate Change, Energy, the Environment and Water filed 22 March 2024 (the third subpoena); and
4. Subpoena to NSW Department of Climate Change, Energy, the Environment and Water filed 12 June 2024 (the fourth subpoena).
By notice of motion filed 25 June 2024 the plaintiffs seek that the documents referred to in the four subpoenas be produced to the Court and that the plaintiffs be granted access to those documents.
I was informed at the outset of the hearing that the defendant's notice of motion had been resolved. The defendant agreed that the plaintiffs should have access to the statements produced by the police.
The defendant now only objects to the production of a geotechnical report called the Wentworth Pass Geotechnical Investigation Report dated 29 July 2022 (the Report). This was a report prepared pursuant to a letter from the Department dated 11 April 2022.
The relevant chronology appears to be as follows:
1. 4 April 2022, landslide or rockfall occurs.
2. 5 April 2022, email from David Crust, an officer of the Department to personnel in the Department and the Environmental Protection Authority, which relevantly said this:
• Update on situation this morning:
• Will Batson is at police command post at Wentworth Falls
• Police have walked into the accident site to commence the retrieval operation…
• Jared Cox from our track team has gone in with the police rescue team. Jared will assist police and take photographs of the accident site•
• The police will fly over the accident site on the way out with a drone and will share their footage with us
• We have a Geotech engineer on standby to analyse the footage. We will consider him accessing the site tomorrow if conditions allow for a more detailed site assessment.
1. 6 April 2022, the Department instructed Leighton Hawkes at McCabes Solicitors,
to advise in relation to the incident and act for it in respect of any future litigation which may arise including anticipated civil legal proceedings and coronial proceedings.
1. 7 April 2022, statement by the Premier, Dominic Perrottet, that he would be seeking advice as to whether the Track should have been open given recent heavy rain. In addition, a statement was reported in the press on 7 April 2022 by the Department that the area was closed to the public until further notice "and a 'comprehensive review' would be undertaken".
2. 11 April 2022, letter of instruction from the Department to Jacobs Engineering Group.
3. 29 July 2022, geotechnical report by the Jacobs Engineering Group.
4. 27 September 2023, commencement of proceedings by the plaintiffs.
5. 9 May 2024, letter from the Coroner to the plaintiffs' solicitor informing them that no inquest would be held.
In Sparks, in the matter of IG Energy Holdings (Australia) Pty Ltd (Administrators Appointed) [2024] FCA 613 Derrington J set out principles of legal professional privilege, relying on what had been said by Beach J in Robertson v Singtel Optus Pty Ltd [2023] FCA 1392. Justice Derrington said at [50]:
(d) At [88] of his Honour's reasons, it was observed that, in determining whether a communication was made for the dominant purpose of obtaining legal advice, it is convenient to apply the principles stated in AWB Ltd v Cole (No 5) (2006) 155 FCR 30 [44] (AWB v Cole), which were restated and elaborated on in Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796 [28] - [44]. They include the following:
(i) In order to establish the dominant purpose "focused and specific evidence is required in respect of each communication, rather than mere generalised assertion let alone opaque and repetitious verbal formulae."
(ii) The relevant time for ascertaining purpose is when the communication was made or when a written document came into existence.
(iii) "[T]he relevant purpose may be either that of the author or initiator of the communication, or the person at whose request or under whose authority the communication was created or made. The circumstances will dictate the focus."
(iv) The purpose of the communication is that which is objectively ascertained, even though the subjective intention of the author or person requesting the creation of the document may be significant.
(v) The content of a communication is relevant in the assessment of its purpose and may carry great weight.
(vi) A practical test in ascertaining purpose is to ask whether the communication would have been made irrespective of the obtaining of legal advice. This involves identifying the intended uses of the document which accounted for it being brought into existence.
(vii) It is undoubted that legal professional privilege can attach to a document produced by a third-party adviser to a client who seeks to use it for the purpose of obtaining legal advice. In this context, the purpose can readily be inferred by the directness of the communication from the third party adviser to the client's lawyer.
(viii) Where third party advisers do work and communicate with a person in a non-litigation context, it is necessary to analyse the precise purpose of each communication. Non-legal advices will rarely be capable of attracting legal professional privilege for the reason that they will almost invariably have the character of discrete advices to the principals.
(ix) Even where a client contemplates acquiring the non-legal advice also for the purpose of submitting to legal advisers, that may merely demonstrate that it has been acquired for a multiplicity of purposes.
Whilst these were said to be principles at common law, they are equally relevant for a consideration of legal professional privilege under the Evidence Act 1995 (NSW) (the Act). The present consideration is governed by the Act by reason of s 131A. That is because the defendant, who is the party to whom the subpoena is addressed, who is resisting access being granted on the ground of legal professional privilege (or "client legal privilege" as the Act calls it).
The plaintiffs submitted that the Report was not prepared for the dominant purpose of seeking or being furnished with legal advice by McCabes or for the purpose of legal services being provided related to anticipated proceedings. The defendant claims the Report is privileged on both bases, pursuant to ss 118 and 119 of the Act.
The plaintiffs pointed to sub-paragraph 50(i) of Sparks to submit that what Mr Hawkes said about his instructions were mere general assertion, and that more was needed to show that his requesting the Report was for the dominant purpose of providing legal advice or in anticipation of legal proceedings.
The defendant had made available to the solicitors for the plaintiffs a redacted form of the letter of instructions to the Jacobs Engineering Group of 11 April 2022. The redacted form of the letter contained only standard information in relation to compliance with the Expert Witness Code, instructions that the report and any drafts were to be confidential to the Department and made reference to matters concerning fees. The redacted form of the letter threw no light on the question of legal professional privilege.
The parties agreed, however, that the unredacted form of the letter should be made available to the Court to assist in determining whether legal professional privilege was correctly claimed for the contents of the Report. The unredacted letter was marked as "Confidential Exhibit" and has not been disclosed to the plaintiffs or their lawyers or to any other person.
Notwithstanding the redacted form of the letter of instructions, Mr Hawkes disclosed a further portion of the letter in his affidavit as follows:
NPWS has instructed the Department of Planning and Environment's Legal Division to provide legal advice in relation to the incident. For the purposes of obtaining that legal advice, it is necessary for NPWS to conduct an internal investigation into the incident and to provide a report on the Investigation to the Legal Division. The need for both the Investigation and the DPE advice, is that there is a high probability of future litigation arising from the incident, including a Coronial Inquest and Civil claims.
The plaintiffs submitted that a number of matters, when considered in combination, demonstrated that the dominant purpose of obtaining the Report was not either for the purpose of obtaining legal advice nor for the purpose of acting in anticipated legal proceedings. The first matter was the statement of the Premier that he would be seeking advice as to whether the Track should have been open on the day concerned, together with the Department's public statement that a comprehensive review would be undertaken. Secondly, the plaintiffs pointed to the statement in the email of David Crust that the Department had a Geotech engineer on standby to analyse the footage received from the police, and the consideration that the engineer would be admitted to the site to provide a more detailed assessment. Thirdly, the plaintiffs relied on what Mr Hawkes said in the above extract from his letter of instructions about the need for an internal investigation.
The plaintiffs submitted that those matters demonstrated that the purpose of the report was related to matters of public safety and not for a legal purpose. Alternatively, there were two purposes, and the dominant purpose was not a legal one. In that regard, the plaintiffs pointed to what was said by Derrington J in Sparks, that a practical test in ascertaining purpose is to ask whether the communication would have been made irrespective of the obtaining of legal advice. The plaintiffs submitted that in the light of what was said by the Premier, the Department and by Mr Crust, it was evident that the report would have been sought regardless of the likelihood of the need to obtain legal advice.
The plaintiffs submitted that litigation privilege did not extend to coronial proceedings.
In my opinion, the defendant adequately demonstrates that the dominant purpose of the obtaining of the Report was for the provision of legal advice to the Department and in anticipation of likely legal proceedings. It was inevitable that the Coroner would be involved because two people were killed. There was a reasonable prospect that an inquest would be held. It was also more likely than not that civil proceedings would be instituted by reason of the death and injuries suffered to members of the Nazir family.
Secondly, Mr Hawkes was instructed on the 6 April 2022 to advice in relation to the incident and to act in any future litigation. His letter of instructions to Jacobs Engineering Group was forwarded some five days later on 11 April 2022. I am entirely satisfied from the terms of the unredacted letter, (and, indeed, even from that portion of the letter disclosed by Mr Hawkes at [17] above) that the Report was sought from the Jacobs Group for the dominant purpose of providing legal advice to the Department and in acting in relation to either or both coronial and civil proceedings arising from the incident.
The report from the Jacobs Group was not the only geotechnical advice sought by the Department. A letter from the Coroner to the plaintiffs' solicitors makes clear that another company, Pells Sullivan Meynink, provided "geotechnical and engineering services to develop their current risk management strategies and current policy concerning landslide risks" of the NPWS. That is likely to be the company referred to in Mr Crust's email because at that date (5 April 2022) the Jacobs Group had not been retained.
Whilst I accept that it is likely geotechnical advice and a report would have been sought into the causes of the incident irrespective of the obtaining of legal advice, that is not a sufficient answer to the claim for legal professional privilege over the Report. First, as noted above, other geotechnical experts had been engaged. Secondly, it is entirely artificial to consider that no legal proceedings could have been anticipated in the light of an incident such as the one that occurred. The Coroner was always going to be involved even if no inquest was held. Thirdly, the principle stated by Derrington J in 50(vi) of Sparks was qualified by saying, "this involves identifying the intended uses of the document which accounted for it being brought into existence". The terms of the letter of instructions point strongly to the Report being sought for the purpose of legal advice and for the use in anticipated proceedings.
In my opinion, legal professional privilege attaches if the dominant purpose was for the client being provided with legal services relating to an inquest. Section 119 of the Act provides:
Litigation
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) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or
(b) the contents of a confidential document (whether delivered or not) that was prepared,
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
The term "Australian or overseas proceeding" is defined in the Dictionary of the Act as meaning,
a proceeding (however described) in an Australian court or a foreign court.
The term "Australian court" is defined as meaning (relevantly):
(e) a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence,
A Coroner's court is such a body. The fact that the laws of evidence do not apply to such a court or that the proceedings are not adversarial would not appear to exclude it from the definition. By contrast, para (f) of the definition refers to,
a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence.
The plaintiffs' submissions make reference to the decision of Bergin J (as her Honour then was) in Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Ltd (2006) 67 NSWLR 91; [2006] NSWSC 530 at [54]-[55] where it was held that proceedings in the Administrative Appeals Tribunal were not "proceedings" within the meaning of the Act because the AAT did not involve the exercise of judicial power. No reference was made in the reasons to the definitions in the Dictionary set out above.
I do not consider that Ingot Capital Investments is authority that s 119 of the Act does not apply in respect of proceedings in the Coroner's Court. I am satisfied, in any event, that the retainer of Mr Hawkes and the letter of instructions to the Jacobs Group demonstrate that the dominant purpose of the Report was for the provision of legal advice and for use in civil proceedings which were more likely than not to have ensued from the incident.
In the circumstances, access to the Report should be refused to the plaintiffs.
No submissions were made on the question of costs. I have already dismissed the defendant's notice of motion by consent. By reason of my determination about legal professional privilege, the plaintiffs' motion will also be dismissed. My prima facie view is that there should be no order as to costs of either of the motions. That is on the basis that, although the defendant's motion was resolved without a hearing, the plaintiffs were in fact entirely successful in the outcome: see in that regard r 42.20 of the Uniform Civil Procedure Rules 2005 (NSW), and Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302 at [5]. On the other hand, the defendant has been successful on the plaintiffs' notice of motion.
I propose that the parties be given until 4pm on 20 August 2024 if they wish to make submissions against the costs order I propose. In the absence of receiving any submissions by that time that costs order will be made.
Accordingly, I make the following order:
1. The notice of motion filed 25 June 2024 is dismissed.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 16 August 2024