Ralph Lauren 57 Pty Ltd v Byron Shire Council; Ralph Lauren 57 Pty Ltd v Byron Shire Council

Legal Services Branch, Department of Environment and Heritage (second respondent, 2013/13396) File Number(s): 2013/13396; 2013/13401 Decision under appeal Citation: [2012] NSWLEC 274 Date of Decision: 2012-12-20 00:00:00 Before: Sheahan J File Number(s): 40068/2011; 40167/2011

EX TEMPORE Judgment 1Before me are two motions filed in two separate applications for leave to appeal from a decision of Sheahan J determined on 20 December 2012, whose subject matter is costs. Leave to appeal is therefore required. It has been determined that the leave application will be heard concurrently with the appeals; I am told that this is to occur in October. 2The motions seek access to four annexures referred to in para 15 of the response to the summons seeking leave to appeal filed by the respondent Council on 22 July 2013. Helpfully, the issues on these motions shrank during the course of the hearing. The remaining issues are confined to the question of waiver of privilege. It is clear that certain documents, claimed to be privileged, were before the Council at its meeting on 14 April 2011. On that day Council entered into confidential session and a transcript of that session has been obtained and is also the subject of the notices to produce. However, the Council has offered to provide masked extracts of that transcript, to the extent that privileged material is not disclosed, and it follows that what is left on the motions before me is the question of waiver. 3There is no doubt that compulsive process, such as subpoenas or notices to produce, can be issued even when all that is before the Court, as here, is an application for leave to appeal (the position is different in the High Court, where there is a strict s 73 appeal). Two examples are Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2012] NSWCA 437, where it was sought to test the evidence which had been put forward explaining the delay in bringing an appeal, and Nicholls v Michael Wilson & Partners Ltd [2010] NSWCA 100, where it was sought to adduce fresh evidence on appeal. 4However, those two interlocutory decisions reveal the difference with what is presently proposed, namely that the waiver that is alleged derives not from any evidence that has been put forward in support of the application for leave to appeal, but instead solely from the submissions that have been made by the respondent Council. 5Bearing in mind that these very same documents were sought before the primary judge on one aspect of his decision which is the subject of the application for leave to appeal (namely his refusal to reopen), the argument must be that the documents may be produced and perhaps tendered by way of further evidence on the s 75A [Supreme Court Act 1970] appeal in support of the proposition that appellable error is disclosed, notwithstanding that they were not documents relied upon by his Honour. 6Although the Council contended that it was not, I proceed for present purposes on the basis that that may be a legitimate forensic purpose for the notices to produce. The essence of the matter, as I have said, is that the submissions served by the respondent Council engage the principles of waiver, in effect by asserting a case which is inconsistent with the maintenance of privilege in a way that is unfair as stated by the High Court in Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [29] and [34]. 7Neither party was able to refer me to a case where waiver had occurred by reference to submissions, as opposed to an issue being created by what was said in defence (as in Hine v New South Wales Land and Housing Corporation [2009] FCA 502) or, as is more conventional in these cases, by way of the evidence that a party has adduced. Many of those cases are referred to in Cooper v Hobbs [2013] NSWCA 70 at [64] - [74]. 8I am inclined to accept Mr Donaldson SC's submission for the Council that waiver cannot be effected merely by the service of submissions. Although that is an absolute proposition, it is supported by the proposition that the submissions themselves to the extent that they refer to evidentiary material, and that is the sense in which it is sought to deploy them for the purposes of waiver, cannot go higher than that evidentiary material. That is to say, it is entirely open and appropriate for submissions to describe, emphasise, and in some cases minimise, the evidence before the Court, but to the extent that they go beyond the material before the Court, at least in an ordinary case, they would not give rise to the inconsistency coupled with unfairness referred to in Mann v Carnell. 9Although I have said that as an absolute proposition, it is certainly possible that there may be cases (I have in mind for example cases of litigants in person) where a different approach might need to be taken. That is not this case though, where both parties are assisted by able counsel, and no person reading the submissions served by the Council could conclude that there was an attempt intentionally to waive privilege in the very documents the subject of the reopening application in respect of which it is the gravamen of the respondent's response to oppose the grant of leave. 10However, there is a further reason for my rejection of the applicants' motion. That is that even accepting that submissions are capable of giving rise to a waiver, the particular submissions advanced by the Council in this case do not go so far. Helpfully, those submissions have been annexed to an affidavit and both parties have taken me through the particular sentences which are said to amount to a waiver of the privileged communications. 11The first of those is this: "The Applicants bore the onus of demonstrating that the Council had 'capitulated' in the proceedings below". That is a heading in the Council's response to the summons seeking leave to appeal which states a proposition about who bore the onus such as to displace the ordinary outcome of the exercise of a costs discretion. In my view, there is no basis on which it can be contended that that submission causes an inconsistency with the maintenance of privilege in the advice. 12Paragraph 12 of the Council's written submissions identifies a chronology, one item of which is 12.6: "The report from the Council staff considered at the 14 April 2011 meeting reiterated [certain] concerns...." Again, nothing in that chronology even mentions the privileged advice in terms. 13Paragraph 13 of the Council's submissions was in these terms: "In the circumstances, the withdrawal of the draft CZMP and the decision to create a new draft plan under the amended legislation and the new guidelines is plainly aptly described as a step in the evolution of the plan and the Applicants' vociferous criticism of the Council's submissions to the primary judge to that effect are unfounded." 14That paragraph is a description of two events which occurred in the real world and not the subject of any dispute in themselves, namely, the fact that the Council withdrew the draft CZMP, and the fact that the Council decided to create a new draft plan. The submission is drafted on the basis of the fact of those two acts by Council, namely, withdrawal and decision to create new plan, not any legal advice that contributed to those decisions. On a fair reading of the submission, the point is made that those two facts, which are in the public domain, constitute a step in the evolution of the plan. That may be right or wrong, but in my view in no way is it inconsistent with the maintenance of legal professional privilege in any advice that contributed to those decisions. 15Paragraph 14 of the Council's submissions is in the same category. It states: "Further, the Council's decision to withdraw the draft CZMP from the Minister was a decision reasonably open to it in the course of carrying out its functions as a planning authority required to prepare a CZMP." 16To the extent that an argument is separately based on para 14, it must amount to the proposition that the reasonableness of the Council's decision was informed by legal advice. I do not think that argument can succeed. Further, in my view, a fair reading of the paragraph is, as its opening words suggest, that it is consequential upon that which has immediately preceded it, which again is a description of actual public events in the real world, not any privileged advice which contributed to them. 17The next sentences relied on form part of paragraph 15 and are in these terms: "The decision was made by the Council as a collegiate body on the material before it at the meeting. This included a report of Council's Executive Manager Environment and Planning, the recommendation of Council Management, and four annexures (of which three comprised confidential legal advice over which a privilege claim has been maintained by Council)." 18There are two things to say of that paragraph. First, there can be no doubt, in light of its closing words, that the author of the submissions was at pains to make it plain that nothing in what was said was intended to waive privilege over what was described as the confidential legal advice. Secondly, those factual matters, in my view, clearly adhere to the distinction recognised in the authorities, notably Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12 at 18, between disclosure of the fact that legal advice exists, and its substance. In my view, the proposition in para 15 does not give rise to a question of waiver. 19There is then a heading "The withdrawal of the draft plan was a supervening event in the normal course of the evolution of the CZMP", which is above a paragraph [para 19] referring to the chronology set out in para 12. Two things again are to be said in relation to this. First, as will have been seen from the foregoing, the chronology does not extend to the legal advice. Secondly, the impugned para 19 is expressed in the negative. The author has said, "there was no 'complete volte-face' by the Council in its resolution as submitted by the Applicants." That is a case, and it is not the only one, where the author has taken a submission made by the applicant and rejected it. Normally, such an approach does not give rise to waiver, and in my view this is such a case. 20Paragraph 25 is in a similar category. It is in these terms: "The Applicants submit that the transcript showed that the legal advice before the Council was 'the single event which caused the Council's change of position and led to the decision to withdraw the CZMP'. There is no proper basis for any such conclusion. Council made its decision on the documents before it at the Council meeting." 21It is convenient to deal with that paragraph in two halves. First, there is the reproduction and criticism of the applicants' submission, made in the first two sentences. So doing is the opposite of advancing a positive case; it is criticising the submission that is made by the applicants, and for similar reasons as the previous paragraph, does not give rise to a question of waiver. For that reason, Mr Cotman SC, who appeared for the applicants, focussed upon the last sentence. 22The last sentence is something that the Court would infer in any event. It emphasises the distinction between submissions and evidence. It is one thing to make submissions which go beyond the evidence before the Court; as noted above, I am sceptical about whether doing so other than in exceptional cases could give rise to waiver. However, one is entitled, by way of submissions also, to rely upon inferences conventionally drawn, one of which is that documents before the Council will have been addressed in the course of exercising its decision-making functions. 23However, it is not necessary for me to go any further in relation to the last sentence at paragraph 25 because of what had been disclosed long ago by a letter from the Council's solicitor, Ms Kelly, dated 30 August 2011 on which reliance is also placed. Almost two years ago, she advised the applicants' solicitor, Ms Coleman, in these terms: "Council received legal advice prior to the meeting of 14 April 2011 which caused a new recommendation with respect to the Rescission Motion. This legal advice is the subject of legal professional privilege; ..." 24That formulation, once again, respects the distinction between the existence of legal advice and the disclosure of its substance or its contents. On the material before the Court, when the application for leave is heard, no doubt it will open to proceed on the basis that the legal advice was one thing which contributed to the decision-making process that took place on 14 April 2011. However, in my view, that of itself is insufficient to give rise to a waiver in the sense recognised by Mann v Carnell. 25Paragraph 27 is in a slightly different position. It is in these terms: "Even if it could be concluded that the reason for the Council's decision to withdraw the draft plan was to be found in the content of the privileged communications, there is no basis for the further conclusion that the content of the privileged communications establishes 'surrender'. It cannot be inferred that the legal advice related in any way to the merits of the allegations raised in the proceedings in the Court below." 26That submission goes beyond the evidence. It is a negative submission to the effect that the evidence does not support a certain conclusion. The paragraph of Ms Kelly's letter to which I have referred does enable the Court to take that additional step. However, the fact that a submission, in a document prepared by experienced counsel, goes (slightly or substantially) beyond the evidence, of itself, is in my view no reason to engage the principles of inconsistency coupled with unfairness. There is no inconsistency, because it is plain that there was no intention for there to be any waiver of privilege. Moreover, there is no unfairness, as is plain from the fact that Ms Coleman has drawn my attention, and no doubt the appellate court's attention will be drawn, to the letter of Ms Kelly of 30 August 2011. 27I was taken also to passages in the transcript from the non-confidential session of Council on 14 April 2011, principally for the purpose of drawing the inference that it was during the confidential session which is the subject of the balance of the notice to produce at which there was discussion of the legal advice. I would readily draw that inference based on what I have been taken to. However, it, in my view, does not take the case in favour of waiver any further. 28I have sought to deal with the claimed basis of waiver of privilege on the merits, by reference to what it is that has been disclosed by Council's submissions responding to the application for leave to appeal, and I have also expressed my view that at least in ordinary cases, or cases which are not exceptional, what is said by way of submissions will not amount to a waiver; rather the appropriate question is whether the submissions go beyond what can be found on the basis of the evidence. 29I am, however, confirmed in my view in relation to the motions by two considerations. The first is that what is before the Court substantively at the moment is merely an application for leave to appeal. Indeed, I would infer, because the primary judge dealt with a similar application, that this was the subject of similar argument before his Honour on the reopening application. That has these two consequences. 30The first is that in the course of advancing submissions in support of the application for leave to appeal, much of what has been said by Mr Cotman in support of the application will be reiterated in support of those grounds dealing with the challenge to the reopening decision. So far as I can see, the draft notice of appeal does not separately challenge the implied refusal by the primary judge to grant access to documents called for by the notice to produce, although I have been told and I accept that the waiver hearing took place, the occasion to call upon the notice to produce did not arise, and so although there is overlap, this is not a case where there is a decision which is not the subject of challenge on the application for leave to appeal. 31The second thing is this. To the extent that I am wrong, and it can be said that the submissions that will be advanced by Council at the concurrent hearing of the applications for leave and the appeal itself can give rise to a basis for waiver, the appellate court is in a substantially advantaged position compared to me. There will have been much fuller argument on this aspect of the appeal, and it is probable that what is said by Council will go beyond what has so far been said in the written submissions which I have referred to in these reasons. The parties have proceeded, in my view, correctly, on the basis that nothing that happens today can preclude a similar application being made at the concurrent hearing that is set down next month, to the extent that it is based upon further submissions that are made by the Council. 32I would go further, in light of the fact that there is, as the High Court recognises in Mann v Carnell at [29] and [34], an element of fairness in the question of waiver. It may be that in the course of hearing the appeal, what presently to me seems not to be accompanied by any question of unfairness may assume a different character. Therefore, nothing in what I have said today should be thought to preclude an application of similar nature based upon what has become (or so it is said) unfair. 33I should deal with one further submission made by Mr Cotman in support of his application that the way in which a case is run, as opposed to the pleadings and the evidence, can give rise to waiver. He said that all that was sufficient was a party doing something which is calculated to advance their position. It is perhaps implicit in what I have already said, but I should make my rejection of it explicit. The question of waiver goes to what evidence may be adduced before the Court for the determination of the issues that arise in this case from the notice of appeal. The submissions that are made by a party will, to the extent that they are supported by the evidence, be borne in mind by the Court, but to the extent that they go beyond the evidence, will not, at least in ordinary cases, give rise to the requisite inconsistency coupled with unfairness that is necessary in order for there to be waiver. 34For those reasons, I am proposing to dismiss both of the notices of motion. That way you have got a decision. [Discussion as to orders] 35Then I make these orders: