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[2014] NSWLEC 1025
Land and Environment Court (NSW)
2014-01-29
Original judgment source is linked above.
The Application 1Mr O'Shanassy has been charged with carrying out development without consent. 2In the course of preparing for the hearing a number of subpoenas and Notices to Produce have been served. Both parties have made claims of privilege over some of the documents produced to the Court. The parties have requested that I determine those claims.
The Law 3Both parties agreed that the privilege claims should be dealt with under the Evidence Act 1995 not the common law. Both parties also agreed that the burden of proof is on the "client" objecting to the evidence. 4The relevant sections of the Evidence Act are: 117 Definitions confidential communication means a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. confidential document means a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. Legal advice 118 Legal advice 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 made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. Litigation 119 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. 5Section 122 sets out when privilege may be lost: 122 Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if: (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party. (4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.
The Defendant's claim for privilege 6The defendant says the two documents produced by Allman Johnston Architects identified in para 9(b) and 9(d) of the defendant's affidavit sworn on 11 October 2013 are privileged under s119 of the Evidence Act because they were prepared in anticipation of litigation and comprise a confidential communication between the defendant and other persons made for the dominant purpose of the Defendant being provided with professional legal services relating to an anticipated Australian proceeding in which the defendant might be a party. I have examined the documents and it is clear from both the contents of the communication, the heading and disclaimer that, for the reason stated by the defendant, the two emails are privileged. 7The first email also contains a number of attachments. It is clear that the defendant would not have been able to maintain a claim for privilege in relation to the original documents. However in Commissioner of Federal Police and Another v Propend Finance Pty Limited and Others 91997) 188 CLR 501, Brennan J said "copies of non-privileged documents are privileged if the copies are brought into existence solely for the purpose of obtaining or giving legal advice or solely for use in litigation that is pending, intended or reasonably apprehended". I note that this case concerned a common law claim for privilege and thus refers to the "sole" test, it follows that the same principles would apply to privilege claimed under the Evidence Act. 8On examination of the email it is clear the documents attached were copied for the dominant purpose of the defendant being provided with professional legal services relating to an anticipated Australian proceeding in which the defendant might be a party and therefore privilege would also attach to them.
The prosecutor's claim for privilege 9The prosecutor's evidence is contained in the affidavit of Mr McFadzean sworn on 21 January 2014. In that affidavit Mr McFadzean does not attest to the circumstances surrounding the creation of any of the documents over which privilege is claimed. With the consent of the parties it was agreed that I should inspect the documents in order to review the privilege claims. 10The prosecutor has conveniently set out the documents over which privilege is claimed and the reasons for that privilege in a table in Mr Fadzean's affidavit sworn on 21 January 2014. For ease I have included that table but added three columns, one for the defendants challenge, one for my ruling and the other for my brief reasons. The document numbers are consistent with numbers used by the parties in previous correspondence. 11The defendant withdraws their challenge to the prosecutors privilege claim in respect to the notice to produce. In any event, I have briefly perused those documents and would have upheld a claim for privilege. 12The defendant drew my attention to three cases. The first of which was New South Wales v Jackson [2007] NSWCA 279. In that case it was held that there was nothing in the evidence to establish that the Department of Education and Training was unable to disclose the contents of witness statements that had been prepared for the Department in relation to an accident involving a student, therefore they were not "confidential documents" within the meaning of the Evidence Act. 13The next case the defendants relied on was Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 975 in which Hamilton J held that a witness statement sent to a witness "without comment and with no restriction imposed in his use of it" did not impose an obligation of confidentiality on him, the privilege was therefore lost. 14I note that the above two cases concern witness statements and that the documents over which privilege is claimed are, in general, notes of conferences rather than the witnesses statements. After reviewing the documents I am not convinced that these cases are totally relevant to the application before me. 15The defendant also pointed out that according to Mallard v R [2005] HCA 68 that a prosecutor has a duty to disclose all relevant evidence to an accused and a failure to do so may, in some circumstances, require a quashing of a verdict of guilty. The prosecutor acknowledged this duty in their oral submissions. 16Neither party to took me to any cases that discussed the relationship between the duty of disclosure and legal privilege. In my research I came upon the case of R v Petroulias (No 22) [2007] NSWSC 692 in which Johnson J dealt with this exact point in relation to notes of conversations with potential witness. The case seems to be relevant to the issues I need to determine in this application. I gave both parties an opportunity to make further written submissions on this case. 17This case involved a claim for privilege in respect to a number of notes taken during conferences between counsel and/or Commonwealth Director of Public prosecution solicitors and 14 nominated Crown witnesses. The evidence stated that the conference notes recorded communications made for the dominant purpose of pending litigation. 18At paragraph 64 Johnson J said: 64 The duty of disclosure operates so that the CDPP ought disclose to the defence all documents to which the duty attaches, irrespective of whether client legal privilege applies to the relevant documents. However, it is for the CDPP to exercise his independent prosecutorial discretion to decide whether information is subject to the duty of disclosure. It is not for the Court, in the context of a subpoena hearing, to supervise or review the CDPP's discharge of his duty during the course of the trial: Mallard v The Queen at 155-156 [81]-[84]; Island Maritime Limited v Filipowski [2006] 226 CLR 328 at 355 [81]; R v Petroulias (No. 1) at [65]. Apart from this question of principle, at a practical level, the CDPP and his officers, no doubt advised by prosecuting counsel, will be in a far better position than a trial judge to form a view as to whether documents ought be disclosed in the discharge of this duty. The trial judge will not usually be aware of the course of prior disclosure, the range of statements taken from Crown witnesses and the variety of other issues and factors bearing upon the duty of disclosure, especially in the context of a complex fraud case with a long litigious history, such as the present case. Even given the advantages which I have as the trial judge engaged in a range of interlocutory applications and trials since July 2006, I am not in a position to review, in some way, the Crown's discharge of its duty of disclosure. 19The defendant's response to my invitation to make further submission was as follows: We maintain the submission at [16] of the defendant's written submissions on privilege hearing which were handed up to you by Mr O'Gorman-Hughes ....... Should you be minded to decline the defendant's application to inspect (among other things) file notes of conversations with prosecution witnesses, we ask that you direct the prosecutor, through Shaw Reynolds Lawyers, to examine those notes so that assurances may be given to the defendant and the Court that there is no material contained within those documents that are subject to the prosecutor's duty of disclosure." 20I found the first part of this submission to be rather curious as I had already told the parties at the hearing that I would be inspecting the documents and the parties encourage me to do so. 21In relation to the second submission, I am not sure that it is appropriate for me to make the order suggested in the second paragraph, it is clear from Johnson J's comments in Petroulias that "it is not for the Court, in the context of a subpoena hearing, to supervise or review the CDPP's discharge of his duty during the course of the trial". Making such an order would, in my view, be supervising the prosecutor's exercise of his duty. If the prosecutor fails to exercise his duty properly there will be consequences but it is not up to this court to force them to exercise the duty. I would note however, that there could be no objection from the court if the prosecutor was willing to accept such an obligation. 22The prosecutor's response to my invitation to make further submissions was to say that they did not wish to make further submissions. However, they said that without admission, they were prepared to provide the defendant with copies of documents 11, 19, 23, 26 and 45 of the documents produced by SRL and all the disputed documents in relation to the documents produced by Joe Lorincz. 23In my view, it is clear from Petroulias that the fact the prosecutor has a duty of disclosure does not mean the documents loss their privileged status. However, the fact that the documents are privileged does not exclude them from the prosecutor's duty of disclosure. 24Therefore, in this application, it will be a matter for me to examine each of the remaining documents in dispute to ensure it is a confidential document or communication "prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client", or "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". Once that is determined I would need to consider if the privilege has been lost. It is up to the prosecutor to determine if the duty of disclosure applies to the communications or documents. If the documents are subject to the duty to disclosed they should be disclosed whether or not they are privileged.
ORDERS 26For the reason stated above all claims for privilege are upheld.
Amendments 18 February 2014 - typographical error 'can' changed to 'came' Amended paragraphs: 16 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: 18 February 2014
Wingecarribee Shire Council
O'Shanassy