Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority

CITATION : Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] NSWLEC 247

Ampolex Limited v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 Attorney-General for the Northern Territory of Australia v Kearney (1985) 158 CLR 500 Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 Farrow Mortgage Services (in liq) v Webb (1996) 39 NSWLR 601 Grant v Downs (1976) 135 CLR 674 Mann v Carnell (1999) 201 CLR 1 Re Southland Coal Pty Ltd (rec & mgrs apptd) (in liq) (2006) 59 ACSR 87 CASES CITED: Seven Network Limited v News Limited [2005] FCA 142 State of New South Wales v Jackson [2007] NSWCA 279 Sydney Harbour Foreshore Authority v Walker Corporation Ltd (2005) 63 NSWLR 407 Sydney Harbour Foreshore Authority v Walker Corporation Ltd [No 2] (2006) 68 NSWLR 487 Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 Thomason v The Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2004) 134 LGERA 195 Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2006] NSWLEC 138 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 242 ALR 383 Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529

(a) it has twice been decided by Talbot J, the second time on remitter from the Court of Appeal: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2004) 134 LGERA 195, [2004] NSWLEC 315 and Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2006] NSWLEC 138; (b) it has twice been before the Court of Appeal which, on each occasion, allowed an appeal by SHFA and remitted it to this Court: Sydney Harbour Foreshore Authority v Walker Corporation Ltd (2005) 63 NSWLR 407, [2005] NSWCA 251 and Sydney Harbour Foreshore Authority v Walker Corporation Ltd [No 2] (2006) 68 NSWLR 487, [2006] NSWCA 386; (c) most recently, it has been before the High Court of Australia on an unsuccessful appeal by Walker: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 242 ALR 383, [2008] HCA 5. 2 On the latest remitter, the third hearing in this Court is fixed to commence on 1 December 2008.

8 Client legal privilege may be claimed in respect of confidential communications between a client and a legal adviser where the communications are made for the dominant purpose of either (a) enabling the client to obtain, or the legal adviser to give, legal advice ("legal advice privilege"); or (b) preparing for litigation actually taking place or that was in contemplation of the client ("litigation privilege"): Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49, [1999] HCA 67 at [35], [61], [62], [167]. Sections 118 and 119 of the Evidence Act 1995 (NSW) create the statutory legal advice privilege and litigation privilege, respectively.

9 Purpose is a question of fact and dominant purpose must be determined objectively having regard to all circumstances in which the communication was made and its nature. In Re Southland Coal Pty Ltd (rec & mgrs apptd) (in liq) (2006) 59 ACSR 87, [2006] NSWSC 899 at [14] (g) and (h) Austin J held: [14] (g) Purpose is a question of fact - The purpose for which a communication is made or a document is created is a question of fact: Esso Australia Resources Ltd v Cmr of Taxation (1999) 201 CLR 49; 168 ALR 123; [1999] HCA 67; Waterford v Commonwealth (1987) 163 CLR 54; 71 ALR 673; 12 ALD 741; Bauhaus at [24]). Purpose and intended use must be determined objectively, having regard to all of the evidence: AWB Ltd v Cole at [122]. Purpose cannot be proved by mere assertion by a third party. Normally (but not always) the relevant purpose is that of the maker of the communication for which privilege is sought.

(h) Dominant purpose - The dominant purpose of the communication must be determined objectively, having regard to all the circumstances in which the communication was made and its nature: Grant v Downs (1976) 135 CLR 674 at 689; 11 ALR 577 at 589, per Stephen, Mason and Murphy JJ; Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266; [2005] FCA 1247, at [30] per Kenny J; AWB Ltd v Cole at [110], per Young J. What is required is an objective view of all of the evidence, taking into account the evidence not only of the author of the communication but of the person or authority under whose direction the document was prepared. If the document would have been prepared irrespective of the intention to obtain professional legal services, it will not satisfy the test: Grant v Downs , at CLR 688; ALR 588, per Stephen, Mason and Murphy JJ. The existence of an ancillary purpose is not fatal to a claim for privilege, but if there are two purposes of equal weight, it is unlikely that one would dominate the other - Stephen Odgers, Uniform Evidence Law , 6th ed, Lawbook Co, Sydney, 2004 at [1.3.10500]-[1.3.10520].

10 What constitutes "legal advice" takes its character from the relevant legal context. In Re Southland at 14 Austin J held: 14 Legal advice - s 118 protects certain confidential communications and the contents of confidential documents made or prepared for the dominant purpose of a lawyer providing legal advice to a client. In this context, legal advice is understood in a pragmatic sense. In General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 at [77] to [78], McColl JA quoted, evidently with approval, the observation of Taylor LJ in Balabel v Air India [1988] Ch 317, at 330, that legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context . This assumes, of course, that the advice is professional advice given by a lawyer in his or her capacity as such. Taylor LJ's dictum was applied in Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610, at 648 per Lord Scott of Foscote, 657 per Lord Rodger of Earlsferry, and 678 per Lord Carswell. There the House of Lords held that the Bank was entitled to claim legal professional privilege in respect of communications with its solicitors not only concerning its legal rights and obligations, but also concerning the presentation of its evidence to an inquiry so as to minimise criticism. See also DSE (Holdings) Pty Ltd v Intertan Inc (2003) 135 FCR 151; 203 ALR 348; [2003] FCA 1191; AWB Ltd v Cole [2006] FCA 571.

15 I allowed Walker and SHFA to cross-examine Ms Hanson on her affidavit and I have examined the disputed documents. Both courses are authorised by High Court authority. In Grant v Downs (1976) 135 CLR 674 at 689, the power to inspect documents in dispute was recognised and it was said that "in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence". In Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 at 70 [52] Gleeson CJ, Gaudron and Gummow JJ held: "A claim for privilege is not conclusively established by the use of verbal formula. A court has power to examine documents in cases where there is a disputed claim, and it should not be hesitant to exercise such a power. In appropriate cases, there is also power to allow cross-examination of a deponent of an affidavit claiming privilege" (footnotes omitted). Walker referred to dicta in the earlier case of Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529 at 541 and 542 per Giles J that inspection should not be undertaken unless there is good reason to do so and that the Court would not unnecessarily pay regard to material which cannot be known to the party challenging the claim for privilege. However, when his Honour returned to this topic more recently in State of New South Wales v Jackson [2007] NSWCA 279 at [24], after citing Esso, he referred only to the second of those propositions. The High Court authorities are clear. The Court should not be hesitant to exercise the power to inspect documents. 16 In the present case, in my view, it was necessary and desirable to inspect the disputed documents. My inspection has illuminated the purpose for which they were brought into existence. The inspection enables me to uphold the claim for privilege in respect of all the disputed documents with the following exceptions.

29 The High Court has held in these proceedings that there is no relevant distinction between SHFA and the State of New South Wales. In Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 242 ALR 383, [2008] HCA 5 at [10] the High Court said: The Foreshore Authority Act constitutes the Foreshore Authority as a corporation (s 10) which for the purposes of any statute is a statutory body representing the Crown (s 11). Among the functions conferred upon it by s 12 are the protection and enhancement of the natural and cultural heritage of the foreshore area and the promotion of orderly and economic development and use of that area. Although the Foreshore Authority came into existence only on 14 December 1998 its functions encompass purposes always within the power of the state itself to effect. Hence in what follows in this judgment, as in the judgments in the Court of Appeal and at first instance, there is no relevant distinction between the Foreshore Authority and the state. 30 As there is no relevant distinction between SHFA and the Department of Planning of the State, I do not accept that there was a joint privilege. Consequently, the privilege over document 49C has been waived.

33 Walker seeks to found the abuse of power contention on the findings or conclusions in Talbot J's second judgment that no logical or proper planning purpose had been shown for the council's decision to maintain the existing zoning or the subsequent introduction of new industrial zoning and that it was a low risk decision to ensure that development antipathetic to the creation of the harbourside park did not occur. Those findings or conclusions, and the context in which they were expressed, are to be found in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2006] NSWLEC 138 at [17] - [24]: 17 I find that the proposal [by the council] to acquire the land was first adopted on 6 February 1992. Moreover in my opinion by 22 December 2000 the market would still have rated the chance of a rezoning to permit the extent of residential development adopted for the purpose of my valuation as it was in 1992, namely, at 100 per cent. If unity of purpose is a prerequisite the time that the proposal was adopted was the date of the making of LEP 2000. However I find that the Mayoral Minute made 6 February 1992, following the preceding decision of the council in December 1991, was a clear and unequivocal decision which formed part of the proposal to acquire the land for the public purpose. I also find no subsequent facts or events, extraneous to the proposal, had the effect of increasing or decreasing the value of the land. Accordingly the consistent refusal to rezone the land for residential purposes and the maintenance of an industrial zoning must be disregarded.

(2008) 161 LGERA 86

(1995) 37 NSWLR 405

(1985) 158 CLR 500

(2006) 151 FCR 341

(1999) 201 CLR 49

(1996) 39 NSWLR 601

(1976) 135 CLR 674

(1999) 201 CLR 1

(2005) 63 NSWLR 407

(2006) 68 NSWLR 487

(1998) 85 FCR 152

(2004) 134 LGERA 195

(2008) 242 ALR 383

(1994) 33 NSWLR 529

(1987) 163 CLR 54

(2005) 225 ALR 266

(2003) 135 FCR 151

(1978) 140 CLR 196

(1995) 185 CLR 83

(1993) 35 NSWLR 110

(1998) 81 FCR 360

(1996) 70 ALJR 603

(2003) 127 FCR 499

(1993) 35 NSWLR 109

(1986) 161 CLR 475

[2005] NSWCA 251

[2006] NSWCA 386

[2006] FCA 571

[2003] FCA 1191