VAW (Kurri Kurri) Pty Limited v Scientific Committee

Land and Environment Court (NSW)|2001-08-02|Before: Bignold J

The Applicant relies upon the following two facts, operating in combination - (i.) the content of the Minutes of the Meeting of the Scientific Committee held on 24 April 2001 relating to the Kurri Sand Swamp Woodland; and (ii.) the subsequent publication in the Government Gazette of Notice of the Respondent's final determination, without any further deliberation or decision by the Scientific Committee after it had received the legal advice from Senior Counsel.

According to the Minutes of the relevant Meeting of the Scientific Committee (Exhibit 1) at which Meeting a number of items of business were transacted, the following content relates to Kurri Sand Swamp Woodland:

Based upon these facts, the Applicant invites the Court to conclude, by way of inference, that the substance or effect of the legal advice has been disclosed by virtue of the Respondent producing to the Applicant, without objection to the original Notice to Produce, the Minutes of its relevant Meeting combined with the fact of the subsequent publication in the Government Gazette of notice of the making of the final determination without any further decision by the Respondent following receipt of the legal advice it had obtained from Senior Counsel subsequent to the said Meeting of the Respondent.

In illustrative support of this submission that the Court may infer that the substance or effect of the relevant legal advice has been relevantly disclosed (without the actual production of any document expressing the legal advice or without disclosure of the full text of the legal advice), thereby waiving the relevant legal professional privilege, the Applicant relies upon three decisions - (i) that of Kirby J sitting singly in the High Court of Australia in Ampolex Ltd v Perpetual Trustee Corp (Canberra) Ltd (1996) 137 ALR 28 ; (ii) that of Goldberg J in the Federal Court of Australia in Australian Unity Health Ltd v Private Health Insurance Administration Council (1999) FCA 1770.; and (iii) that of Lloyd J in Multistar Pty Ltd v The Minister for Urban Affairs and Planning (2000) NSWLEC 231.

In Ampolex, the issue for the High Court was whether it should stay an order of the trial judge (Rolfe J) granting access to documents produced pursuant to a Notice to Produce in respect of which the trial judge (see (1996) 40 NSWLR 12) had ruled that legal professional privilege had been lost by virtue of disclosure in a statement issued to shareholders, which statement had included the following sentences:

There is a dispute about the conversion ratio. Ampolex maintains that the correct ratio is 1:1 and has legal advice supporting this position.

Kirby J at 34 expressed the following view in respect of the trial judge's ruling:

Ampolex stated that it had legal advice supporting its position . Rolfe J concluded this statement was, within s 122, disclosure of the substance of the evidence . The disclosure suggested, to reasonable inference, that the legal advice supported Ampolex's stated position. Ampolex drew attention to the limits of substance suggested by such decisions as Derby and Co Ltd v Weldon No. 10 (1991) 1 WLR 660 at 668. I agree that a mere reference to the existence of legal advice would not amount to a waiver of its contents. Rolfe appears to have acknowledged this distinction by later rulings to which I was taken during the course of argument. But at least in respect of the substance of the legal advice supporting Ampolex's assertion about the correct ratio, which is in contest here, it is strongly arguable that the public reference to the supporting legal advice, waived the privilege as to the precise content of the legal advice, on that point. I cannot say that the ruling is attended by such doubt as to promise a substantial prospect of a grant of special leave to appeal to this court. On the contrary, on my present understanding of the facts and as a tentative view, the opinion expressed in the ruling seems arguably correct.

It is to be noted that Ampolex involved the application of the Evidence Act, s 122. It was not a case of common law waiver of legal professional privilege and, as noted by the joint majority judgment in Carnell at p 11, the operation of s 122 "as to the circumstances in which privilege may be lost is not identical to the corresponding common law principles".

In Australian Unity Health Ltd, Goldberg J, although applying the common law principles of waiver of privilege, considered the decision in Ampolex (both of the trial judge and of Kirby J on the stay application to the High Court) to be "of assistance by way of analogy".

The proceeding in Australian Unity Health was an application for judicial review of the relevant determination made by the respondent upon a number of grounds, including the grounds that relevant considerations were not taken into account and irrelevant considerations were taken into account by the respondent, in making its determination under legal challenge.

In contending that legal professional privilege had been waived, the applicant relied upon the content of the statement of reasons for the respondent's determination which was notified to the applicant and which included the following sentences …. "This policy is defined in Council Rule No. 4. Separate legal advice supporting PHIAC's view of this rule has been received."

It also relied upon the following content in the Statement issued pursuant to the Administrative Decisions (Judicial Review) Act, s 13 under the heading "Evidence or Other Material on which Findings were Based";

Letter from Phillips Fox to PHIAC dated 10 August 1998

(being the same source of legal advice as was referred to in the first mentioned statement of reasons).

In respect of the second matter relied upon, Goldberg J held that it had not disclosed the legal advice. His Honour continued "It simply says that it is part of the evidence and other material on which the finding was based. Consistently with the reasons of Rolfe J and Kirby J (in the Ampolex decisions), I do not consider that is a disclosure of the contents of the advice or a waiver of legal professional privilege".

However, Goldberg J upheld the applicant's submission that the first-mentioned matter relied upon, did constitute a waiver of the legal professional privilege. His Honour appears to have based his decision upon two separate grounds, namely: (i.) the content of the relevant legal advice had in effect been disclosed; and (ii.) the content of the legal advice was material to the issue raised by the judicial review proceeding of what had activated or motivated the respondent in making the determination.

The first-mentioned basis or ground for his Honour's decision is expounded in the following passages at pars 18 and 19 -

However, I form a different view in relation to the recommendation where it is explicitly stated that legal advice supporting the respondent's view of Rule No 4 has been received. Again, I reach the conclusion by analogy with the reasoning of Rolfe J and Kirby J in the Ampolex cases (supra) above. It seems to me that by stating the respondents' view of the rule, and that legal advice supports that view, the existence of legal advice is being disclosed, the contents of which say that it supports the respondent's view of the rule.

Consistently with the reasoning of the High Court in Attorney-General Northern Territory v Maurice (1986) 161 CLR 475, and Goldberg v Ng (1995) 185 CLR 83, I am of the opinion that there is at the least an implied waiver of legal professional privilege, and at the most an actual waiver of the legal advice because the contents of the advice are referred to. So far as an implied waiver is concerned, it seems to me that it can be said that there is an implied or an imputed waiver because the recommendation sets out a justification for the policy and an explanation of it which is supported by legal advice. That recommendation is now before the Court and it seems to me that the fairness principle requires that that advice to be disclosed.

The alternative basis for his Honour's decision is expounded in the following passages at pars 20 and 21 -

I turn to an alternative ground upon which it might be said that privilege in respect of the contents of the legal advice has been waived or that legal professional privilege cannot be claimed for it. I refer to Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405, a decision of Giles J, then Chief Justice of the Commercial Division of the Supreme Court of New South Wales where, at 411, his Honour referred to the proposition that where allegations are made which raise the issue of the state of mind of a party and legal advice is likely to have contributed to that state of mind, then the party who was the recipient of the legal advice cannot claim legal professional privilege in relation to it. Giles J followed the reasoning in Thomason v Council of the Municipality of Campbelltown (1939) 39 SR NSW 347 where at 358-359 Jordan CJ said:

Hence, in effect, one of the issues in the case was what advice if any the plaintiff had received from her legal advisers as to her alternative legal rights. In these circumstances, since the fact and nature of the advice is an issue in the case, I am of opinion that privilege cannot be raised to prevent the proof of the advice. The position is analogous to that which arises in a suit in Equity to set aside a transaction on the ground of undue influence. In such a suit, it has always been the practice for the defendant to cross-examine the plaintiff with a view to proving that the plaintiff had competent legal advice when he entered into the transaction, and to call and examine the legal adviser if he is available; and I have never known it to be suggested that such evidence is inadmissible on the ground of the plaintiff's privilege."

Giles J noted that that principle had recently been affirmed and applied in Benecke v National Australia Bank (1993) 35 NSWLR 110 and was ultimately founded on the fairness doctrine considered in Attorney-General Northern Territory v Maurice (supra).

Although the circumstances in this case are not directly the same as those which arose in Thomason, Benecke or the Ampolex cases (supra), it seems to me that the grounds which have been raised as the grounds for review to which I have already referred, which include taking into account irrelevant considerations, failing to take relevant considerations into account and that the making of the decision was an exercise of a discretionary power in accordance with a rule of policy without regards to the merits, make an issue in the case what was the legal advice received. It seems to me that when it is established that part of the evidence or other material on which the finding was based was the letter of advice and that the letter of advice supports the respondent's view of the rule, it can be said with some force that it is an issue in the case as to what activated or motivated the decision-maker, in the circumstances where part of the material relied on was legal advice. For those reasons legal professional privilege cannot be claimed.

In Multistar, (which like Ampolex, was a case involving the Evidence Act, s 122), Lloyd J held that the council could no longer claim privilege in respect of legal advice, "the substance of which had been publicly disclosed" in two planning reports submitted to the Council's Central Planning Committee (the meetings of which were open to the public and where reports tabled at meetings were available to the public). The first planning report contained the following statements:

Existing use issues. The proposed clauses are contrary to the existing use provisions of the EP & A Act. The amendments will have the effect of extinguishing existing use rights for existing car parks and the ability for such uses to be intensified and extended in accordance with the existing rights legislation. Council's legal advice as to whether the proposed amendments are ultra vires should be circulated. Comment: Council's legal advice does not support this position. Council's legal advice is confidential and so has not been circulated to the public.

The second planning report contained the following statements:

Issue. This clause, clause 48A, is clearly beyond council's powers as the provisions in the EP& A Act 1979 and the regulations thereto specifically provide that a development application for a site having existing use rights can be intensified and extended through a further development application. The clause derogates from the existing use provisions of the EP& A Act 1979 and is clearly contrary to section 24 of the Act. The clause is clearly contrary to the existing use provisions of the EP & A Act 1979. Comment: Council's legal advice does not support this position.

The reasons for Lloyd J's conclusion that client legal privilege in the legal advice was lost are stated at pars 7 to 9 (incl) as follows:

The mere reference to the existence of legal advice does not amount to waiver of its content. Where however there has been a disclosure of the substance of that advice then the authorities suggest that the privilege has been waived. I refer in particular to Benecke v National Australia Bank, Court of Appeal, 22 April 1993, unreported; Ampolex v Perpetual Trustee Company (Canberra) Limited, HCA, 22 May 1996, unreported, per Kirby J; and Australian Unity Health Limited v Private Health Insurance Administration Council [1999] FCA 1770.

In Benecke reference is made to Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475, in which reference was made to the passage in Wigmore, Evidence in Trials at Common Law (1961) vol 8, para 2327 at 636 to this effect:

When his conduct touches a certain point of disclosure fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed after disclosing so much as he pleases to withhold the remainder.

In the present case the council has publicly disclosed the substance of the legal advice in the two remaining reports; that is to say, the advice referred to in the two reports to the Central Sydney Planning Committee. In my opinion the council can no longer claim privilege in respect of that legal advice, that is to say, the advice referred to in the two reports to the Committee.

The reason why I have referred to the detail of the relevant disclosures made in these three cases is to highlight the significant contrast with the disclosures relied upon in the present case, which as will presently be demonstrated, do not relevantly disclose the content of the relevant legal advice. D. HAS THE APPLICANT ESTABLISHED WAIVER AT COMMON LAW OF THE PRIVILEGE?

In my judgment, the Applicant has not established any relevant inconsistency between the conduct of the Respondent in producing, pursuant to the original Notice to Produce, the Minutes of the Meeting of the Respondent held on 24 April 2001 (which Minutes disclose that the Respondent (i) noted "the advice from Counsel"; (ii) agreed to seek advice from Brian Preston SC on whether a further more explicit request for information is required; and (iii) made the final determination "subject to the advice from Brian Preston SC indicating that further action was required by the Committee") and the maintenance of the confidentiality in the legal advice that it obtained from Mr Brian Preston SC.

In so concluding, I am of the opinion that the only conclusion that can reasonably be reached as a matter of a fair reading of the content of the Minutes, is that they contain mere references to (i) legal advice of unspecified content received and considered by the Respondent during its deliberations at its Meeting; and (ii) further legal advice to be obtained "on the question whether a further more explicit request for information is required" or on the question whether "further action was required by the Committee".

In this respect, it is beyond argument that all of the cases earlier cited consistently affirm that the voluntary and intentional disclosure of a mere reference to the existence of legal advice does not constitute waiver of the privilege by the client.

The Applicant's argument that there has been a relevant disclosure of the content of the legal advice depends upon the combined effect of the disclosure in the Minutes of at least the subject matter of the legal advice, and the subsequent fact of the publication in the Government Gazette of notice of the making of the final determination without any further decision by the Respondent (beyond that recorded in the Minutes of its Meeting held on 24 April 2001) after it had obtained the further legal advice from Mr Brian Preston SC.

The Applicant's argument is that when regard is had to the subsequent fact, it is both possible and reasonable to infer what the content of the legal advice was. But it is at this vital point that I think the Applicant's argument fails because it is simply not reasonably open to infer the content (even partial) of that legal advice. Significantly, at the hearing, I did not understand the Applicant to essay to formulate what was the disclosed content of the legal advice.

The cause of the difficulty, if not impossibility, of reasonably drawing the necessary inference as to the content of the legal advice, lies in the sparse details, and ambiguous content of what is recorded in the Minutes of the Respondent's Meeting, and especially in the third paragraph.

For example, the first sentence of that paragraph does not identify the source of the "advice to consider whether any further information on the Community exists". The second sentence refers to "Mr Robertson" but he is not otherwise identified except by his connection with the Solicitors who are the Solicitors acting for the Applicant (and it may be that "Mr Robertson" is to be identified with the Applicant in the present proceedings). But in any event, it is he to whom the opportunity was provided to "provide any further relevant information to the Committee". Then the final sentence of the paragraph refers to the Committee's decision to "seek advice from Brian Preston SC on whether a further more explicit request for information is required". It is not entirely clear from this sentence precisely who is the person who may make "a further more explicit request for information". However, it may be that the content of the final paragraph suggests that it is probably the Committee itself. Be that as it may, the final paragraph records the decision of the Committee "to make a final determination to list the Community" on the Chairperson's Motion which was expressed to be "subject to the advice from Brian Preston SC indicating that further action was required by the Committee".

Again, this last-mentioned expression is ambiguous - does it mean that if the advice indicates that no further action is required by the Committee, there is a decision to make the final determination? - does it mean that if the advice indicates that some further action is required by the Committee, the decision to make the final determination is to be stayed or suspended? - or does it mean whatever be the content of the legal advice, the decision to make the final determination is adhered to? Faced with these ambiguities in the text, what inference can reasonably be drawn as to the content of the legal advice from the subsequent fact of publication in the Government Gazette of notice of the final determination?

In order to fully understand the content of the Minutes of the Respondent's Meeting and particularly in an attempt to clarify or to resolve the identified uncertainties or ambiguities in the text, it is permissible, in my judgment, to have regard to background facts, including the legislative framework governing the Committee's statutory functions for listing threatened species, populations and ecological communities and key threatening processes as contained in Part 2 of the TSC Act.

It is common ground that those background facts include the following:
Sometime in 2000 the Respondent received a nomination to list the Kurri Sand Swamp Woodland as an endangered ecological community.
In December 2000, the Respondent made a preliminary determination to list that community.
Notice of the preliminary determination was publicly exhibited from 8 December 2000 to 25 January 2001 during which period public submissions were invited.
By letters dated 25 January, 16 February and 9 March 2001, the Applicant's Solicitors wrote to the Respondent opposing listing and threatening legal action if listing proceeded. These letters were in the form of submissions pursuant to the TSC Act, s 22 canvassing the proposal both on scientific merits and on legal merits.

The statutory scheme contained in the TSC Act, Pt 2 for listing of threatened species, populations and ecological communities may be briefly summarised as follows: (i.) Division 1 prescribes lists (contained in Schedules to the TSC Act) of endangered species, populations and ecological communities. (ii.) Division 2 prescribes species, populations and ecological communities that are eligible for listing as being endangered. (iii.) Division 3 prescribes the procedure for listing of endangered species etc and includes the following provisions - (a) The Committee is responsible for determining the content of the relevant lists: (s 17). (b) The Committee may make a determination for the listing of species, populations or ecological communities on its own initiative (s 18(1)) or following a request by the Minister (s 18(2)(a)) or on a nomination made by another person (s 18(2)(b)). (c) Any person may nominate a species, population or ecological community for listing or delisting, by written nomination to the Committee which nomination must include information required by the regulations (s 19). (d) The Committee may request a nominator "to provide additional information about the subject matter of the nomination within a specified period" (s 20). (e) The Committee must consider any nomination (s 21). (f) That consideration must include a preliminary determination as to whether the proposed is supported or not supported (s 22(1)). (g) Where a preliminary determination is made, public notice must be given of that determination and written submissions must be invited and the Committee must consider them (s 22(2) - (5)). (h) The Committee is required to make a final determination (either accepting or rejecting the proposal) within a stipulated period (s 23). (i) On making a final determination, the Committee must give public notice of its decision (s 24); and (j) Upon publication of the final determination, the lists contained in Schedules 1, 2 or 3 to the TSC Act, are relevantly deemed to be amended to reflect the final determination (s 25).

Having regard to the background facts and to the statutory framework for listing contained in the TSC Act, Pt 2, understood in the light of the provisions of the TSC Act Pt 8, prescribing the constitution, functions and meeting procedures of the Scientific Committee, the uncertain or ambiguous references contained in the Minutes of the Respondent's Meeting to "the requirement" for "further explicit request for information" or "further action by the Committee", that I have earlier identified, are not in my judgment, elucidated or clarified or otherwise satisfactorily explained.

Accordingly, for the Applicant's argument to succeed, it must establish that the reasonable inference to be drawn from the subsequent fact of the obtaining of the legal advice and the publication in the Government Gazette of notice of the making of the final determination without further decision by the Committee, is that the content of the legal advice has been disclosed (either entirely or partially).

In my judgment, the Applicant has not established any relevant inconsistency between the conduct of the Respondent and the maintenance of the confidentiality in the legal advice that the Respondent obtained from Mr Preston SC subsequent to the Meeting of the Respondent held on 24 April 2001.

I have previously held that the content of the Minutes of that Meeting (considered in isolation of subsequent events) does not disclose the content of the legal advice obtained by the Respondent. Rather, what is disclosed in those Minutes is that unidentified legal advice (referred to in the first paragraph of the Minutes) was obtained by the Respondent and that the Respondent decided at that Meeting to seek further legal advice. All that is revealed in the Minutes of the potential nature of that further legal advice is that it concerned the question "whether a further more explicit request for information is required" and/or the question (if it be a different question) "whether further action was required by the Committee".

Properly construed, these are mere references to the fact of the existence of legal advice - either that already obtained by the Respondent or that proposed to be obtained. These references in the Minutes do not disclose the contents of the legal advice.

Accordingly, production of the relevant Minutes to the Applicant, pursuant to the original Notice to Produce does not, in my judgment, involve "any limited actual or purported disclosure of privileged material" such as may form the basis for imputed waiver: cf Goldberg at 96.

Moreover, I also find ultimately unsustainable the Applicant's argument that, notwithstanding this state of affairs as to the consequence of the production of the Minutes of the Respondent's Meeting , when regard is had to the subsequent facts - that (i) further legal advice was obtained by the Respondent; and (ii) notice was published in the Government Gazette of the making of the final determination without any further decision by the Respondent - it is possible to revisit the content of the Minutes by notionally reading back into that content, the subsequent facts so as to produce the end result that it is possible to infer from all of the facts operating in combination, what is the content of the further legal advice that was obtained by the Respondent.

My reasons for rejecting the Applicant's argument are twofold. Firstly, for the reasons earlier given, I do not think the primary facts are capable of yielding the inference that the Applicant's argument necessarily seeks to have drawn, and I am not prepared to draw the inference because of the uncertainties and ambiguities that I have earlier identified in the text of the Minutes. In so concluding, the uncertainties and ambiguities in the suggested disclosure in the present case are to be starkly contrasted with the certainty of meaning in the relevant disclosures made in the trilogy of cases relied upon by the Applicant that I have earlier analysed. In each of those cases, as I have earlier demonstrated, the finding that there had been relevant disclosure of the confidential legal advice (or at least of "the substance or effect" of that advice) was based upon the plain meaning of the relevant text that had been voluntarily disclosed.

The second (and discrete) reason for rejecting the Applicant's argument is that the relevant conduct of the Respondent that is claimed to constitute waiver of the privilege is, in my judgment, properly to be confined to the production, without objection pursuant to the Applicant's first Notice to Produce of the Minutes of the Meeting held by the Respondent on 24 April 2001, and whatever disclosure of the legal advice that that entailed. The conduct of the Respondent subsequent to its Meeting (for which the Minutes were produced) in publishing in the Government Gazette notice of its final determination is not, in my judgment, any part of the relevant conduct by the Respondent for the purpose of applying the common law rules regarding waiver of legal professional privilege, ie it is not conduct that is relevant to determine whether the Respondent's conduct involves an inconsistency with the maintenance of the confidentiality in the legal advice that it received after transacting its business at its Meeting held on 24 April 2001.

In so concluding that no waiver of privilege has been established, I am also satisfied that no basis has been established in the present case that would attract the alternative basis for Goldberg J's decision in Australian Unity Health in holding that legal professional privilege could not be claimed in that case. For my part, I would respectfully wish to reserve my opinion on that alternative basis for waiver of privilege.

Accordingly, and for all the foregoing reasons, I hold that the Respondent has not, according to the principles of the common law, waived legal professional privilege in the legal advice it obtained from Mr Brian Preston SC prior to publishing in the Government Gazette notice of its final determination.

In so concluding, since I have concluded that there has been no relevant partial disclosure of the privileged legal advice, any consideration of "fairness" does not truly arise (cf Carnell at 13). However, for completeness, I would add the observation that the Respondent has not deployed in this litigation any use or reliance upon the fact that it obtained legal advice before it published in the Government Gazette notice of its final determination. Accordingly, no question of fairness arises in the adjudication upon the disputed issue. E. ADDITIONAL ANALYSIS OF THE RELEVANT FACTS BY REFERENCE TO THE PROVISIONS OF PT 3.10 OF THE EVIDENCE ACT

As I indicated earlier, contrary to the common assumptions made by the parties in their competing submissions, the issue in dispute is, I think, to be properly resolved in accordance with the principles established by the Evidence Act 1995, Pt 3.10 rather than by the common principles of waiver of privilege.

This result flows from the commencement on 1 October 1999 of Supreme Court Rules Pt 36, r 13 being part of the corpus of Supreme Court Rules which is expressly adopted by the Rules of this Court: vide Pt 6 r 2(1).

13 (1) This rule applies where: (a) the Court, by subpoena or otherwise, orders any person to produce any document to; (b) a party is required by a notice served under rule 16(1) to produce any document to; or (c) a question is put to a person in the course of examination before, the Court or a Judge or any officer of the Court, or any examiner, referee, arbitrator or other person authorised to receive evidence and neither Part 3.10 of the Evidence Act nor Part 3.10 of the Evidence Act 1995 of the Commonwealth is applicable.

(2) The Court shall not compel, and rule 16 shall not require, production of a document or an answer to a question, unless and until the Court directs that the production or answer shall not be prevented by this subrule:

(a) over the objection of a person if evidence of the document, or of an answer to the question, could not be adduced in the proceedings over the objection of the person, by virtue of the operation of Part 3.10 Division 1 of the Evidence Act.

Rule 13 applies in the present case because, by virtue of the service on the Respondent of the Applicant's second Notice to Produce (such process clearly involving an interlocutory proceeding) the provisions of the Evidence Act, Pt 3.10 (of both the Commonwealth and of this State) is not applicable: see Carnell; Esso Australia. Accordingly, subrule (2) applies so that "rule 16 shall not require production of a document" unless and until the Court directs that the production - "shall not be prevented by this subrule".

The basis or bases for the Court so directing in terms of subrule (2) are found in the relevant provisions of the Evidence Act, Div 1 of Pt 3.10. Relevantly, for present purposes, consideration of the provisions may be limited to the Evidence Act, s 122(2) which relevantly provides as follows:

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made: (a) ………………….. (b) …………………... (c) …………………… (d) ……………………

Although the Evidence Act, s 122(2) is "not identical to the corresponding common law principles" (Carnell at 11) (in that waiver at common law may be based upon a more demanding test than that prescribed by s 122 for loss of client legal privilege), the basis for my finding that there has been no waiver of the privilege at common law because the content of the confidential legal advice had not been disclosed (either fully or partially) is sufficient to directly apply to, and hence to dispose of, the question raised by s 122(2) as to whether "the substance of the evidence" disclosing a confidential legal advice obtained by the client (see s 118) has been knowingly and voluntarily disclosed by the Respondent producing, pursuant to the Applicant's initial Notice to Produce, the Minutes of the Meeting of the Respondent held on 24 April 2001.

In so concluding, I would respectfully adopt the learned discussion and views of Rolfe J in Ampolex at p 18 to p 21 as to the proper meaning of the word "substance" appearing in s 122(2).

Accordingly, I find that there has been no relevant disclosure of the relevant legal advice within the meaning of the Evidence Act, s 122(2) and hence, there has been no loss pursuant to that provision, of the client legal privilege in the legal advice as referred to in the Evidence Act, s 118.

Accordingly, there is no basis for the Court, giving the direction pursuant to Supreme Court Rules Pt 36 r 13(2) that production of the privileged legal advice shall not be prevented by that subrule.

It follows that production of the privileged legal advice is not required by the service on the Respondent of the Applicant's second Notice to Produce. F. CONCLUSIONS AND ORDERS

For all the foregoing reasons, I hold that there has been no waiver at common law of the Respondent's privilege in the legal advice it obtained from Mr Brian Preston SC and there has been no loss of the relevant client legal privilege in that advice pursuant to s 122(2) of the Evidence Act 1995.

I reserve the question of costs of the interlocutory proceedings.

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.

CITATION : VAW (Kurri Kurri) Pty Limited v Scientific Committee [2001] NSWLEC 182 APPLICANT: VAW (Kurri Kurri) Pty Limited PARTIES : RESPONDENT: Scientific Committee FILE NUMBER(S) : 40110 of 2001 CORAM: Bignold J KEY ISSUES: Practice and Procedure :- Objection to production of document pursuant to Notice to Produce - legal professional privilege - waiver or loss of privilege. Supreme Court Rules Part 36 r 13 LEGISLATION CITED: Evidence Act 1995 s 122 Threatened Species Conservation Act 1995 Ampolex Ltd v Perpetual Trustee Corp (Canberra) Ltd (1996) 137 ALR 28; Australian Unity Health Ltd v Private Health Insurance Administration Council (1999) FCA 1770; CASES CITED: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; Mann v Carnell (1999) 201 CLR1; Multistar Pty Ltd v The Minister for Urban Affairs and Planning (2000) NSWLEC 231; Northern Territory of Australia v GPAO (1999) 196 CLR 553 DATES OF HEARING: 02 August 2001 DATE OF JUDGMENT: 08/10/2001

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