Grand Rozelle Pty Limited v Transport For NSW [2024] NSWLEC 62

Land and Environment Court New South Wales

Medium Neutral Citation: Grand Rozelle Pty Limited v Transport For NSW [2024] NSWLEC 62 Hearing dates: 16 May 2024 Decision date: 16 May 2024 Jurisdiction: Class 3 Before: Pain J Decision: See below in [4], [6], [8]-[11]. Catchwords: PRACTICE AND PROCEDURE – claim of legal professional privilege over documents – whether prepared for dominant purpose of obtaining legal advice Legislation Cited: Evidence Act 1995 (NSW), ss 11A, 118 Category: Procedural rulings Parties: Grand Rozelle Pty Limited (Applicant) Transport for NSW (Respondent) Representation: Counsel: J Mckelvey (Applicant) D Tynan (Respondent)

Solicitors: Addisons (Applicant) Norton Rose Fulbright Australia (Respondent) File Number(s): 2023/85834-006

EX TEMPORE JUDGMENT 1. I am giving my findings on the part of the amended notice of motion filed on 24 April 2024 by the Respondent Transport for NSW, in particular paragraph 2 in relation to a claim for legal professional privilege for the purposes of ss 11A, 118 of the Evidence Act 1995 (NSW). 2. To that end, I have been particularly directed to the affidavit of Mr Chenevier solicitor dated 24 April 2024, which attaches a schedule of the relevant documents that are the subject of the legal professional privilege claim. I note that also appears at schedule B1 of the amended notice of motion. Schedule B1 identifies 31 documents about which I heard arguments this morning from the parties. I have had the opportunity to read these, and I am in a position to rule now. 3. Essentially the parties agreed on the relevant principles I am applying in relation legal professional privilege. I note the authorities particularly referred to by Mr Tynan at paragraphs 37, 38, and 39 of his submissions, noting particularly the need to have the dominant purpose being the provision of legal advice. Consideration depends on the content, context and evidence, as well as the form of the document. 4. In relation to what was broadly called category 1, documents 1 to 27 and 29, I agree that legal professional privilege should attach to those as they are clearly essentially solicitor to solicitor speaking broadly and clearly developed for the purpose of obtaining legal advice. 5. The second category is document 28. When I came to look at document 28, it was much shorter than I was expecting. It is fair to say the discussions and submissions made earlier about email chains probably do not strictly arise. I have formed the view that legal professional privilege should attach also to category 2, that is the two emails that are in document 28. 6. That brings me to category 3 document 30 in the bundle. I now look at the affidavit of Mr Chenevier at paragraph 71. He summarises pages 41, 42, 47, 48, 67, 68, and 71 of document 30, which he wishes to redact for legal professional privilege. I have considered pages 41, 42 and necessarily that is related also to page 71. This is essentially the same text, albeit at 71 from an in house lawyer at the Department of Transport. Having looked at the content of that material, I do not think legal professional privilege attaches to that. The redactions on pages 41, 42 and 71 are not necessary. 7. If I go to page 47 and 48 that is described in paragraph 75 of Mr Chenevier's affidavit, I do not consider redactions on the basis of legal professional privilege are justified for that material. 8. I now move to page 67 to 68. I consider that legal professional privilege does attach to those redactions that are the subject of paragraph 76 of Mr Chenevier's affidavit. 9. I now move to document 31, as I understand it, headed, 'Outcomes report, Western Harbour Tunnel'. I am looking only at one page, that is page 93, and it is two lines under, 'Assessment teams response'. I do not consider legal professional privilege should attach to that. That completes my ruling on prayer 2 of the notice of motion.