CITATION: Malouf -v- Manly Council [2002] NSWADT 56 DIVISION: Retail Leases Division APPLICANT PARTIES: Michael Malouf RESPONDENT Manly Council FILE NUMBER: 015065 HEARING DATES: 04/02/2002 SUBMISSIONS CLOSED: 02/08/2002 DATE OF DECISION: 04/19/2002 BEFORE: Hole M - Judicial Member APPLICATION: Privilege - legal professional privilege MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Retail Leases Act 1994 CASES CITED: Ciesielski v Broadway Shopping Centre Sydney Pty Limited [2002] NSW ADT 25 Esso Australia Resources Limited v The Commissioner of Taxation [1999] HCA 67 APPLICANT REPRESENTATION: P Lenehan, solicitor RESPONDENT R Bellamy, barrister ORDERS: 1. The Respondent's claim for legal professional privilege is upheld in relation to documents 1 to 99 inclusive, excluding document 10, in the Affidavit of Lesley Ruth Finn dated 5 February 2002; 2. The Respondent's claim for legal professional privilege is upheld in relation to documents 100 to 119 inclusive in the Affidavit of Lesley Ruth Finn dated 5 February 2002; 3. The Respondent's claim that documents 1, 2 and 3 in the Affidavit of Lesley Ruth Finn dated 1 February 2002 are privileged as they came into existence for the purposes of without prejudice communications is upheld; 4. The Respondent's claim that document 4 in the Affidavit of Lesley Ruth Finn dated 1 February 2002 is subject to legal professional privilege is upheld; 5. The Respondent's claim that documents 5, 6 and 7 in the Affidavit of Lesley Ruth Finn dated 1 February 2002 are subject to legal professional privilege is upheld. 1 The Applicant has issued a further Notice to Produce documents addressed to the Respondent. The Respondent has relied on the ground of legal professional privilege and non production of a number of the documents specified in the Notice to Produce. 2 The substantive claim relates to an agreement between the two parties in relation to the use of an area by the Applicant of which the Respondent is the relevant body from which such an agreement may be obtained. The Applicant seeks an Order that the agreement is subject to the Retail Leases Act and relief from the Respondent taking action pursuant to terms of the Agreement. 3 The issue of legal professional privilege has been considered in this Tribunal in the matter of Ciesielski v Broadway Shopping Centre Sydney Pty Limited [2002] NSW ADT 25. The information in that case will not be traversed at length here as both parties have sited that case as one upon which they rely. 4 The representative of the Respondent has submitted that the case of Esso Australia Resources Limited v The Commissioner of Taxation [1999] HCA 67 is also directly applicable. 5 The majority of documents to which the Respondent has sought to apply the claim for legal professional privilege is as set out in an Affidavit by Lesley Ruth Finn dated 5 February 2002. 6 Further documents are referred to in an Affidavit by Lesley Ruth Finn dated 1 February 2002. 7 Insofar as the documents are referred to in the Affidavit of Lesley Ruth Finn dated 5 February 2002, those documents are referred to herein with identical numbering for ease of identification. Each of the documents numbered 1 to 121 is as described in the Affidavit referred to and each of those documents has been perused for the purposes of determining whether the claim that they are privileged is supportable. It is noted that document No. 10 is now excluded from the claim by the Respondent that it is privileged. 8 Documents 1 to 99 inclusive except for document 10 comprise various draft letters, letters, facsimiles, file notes, tax invoices, emails and memorandums and letters of advice are all documents to which it is considered that the principles in Ciesielski v Broadway Shopping Centre Sydney Pty Limited relating to legal professional privilege apply. Documents 1 to 99 inclusive excluding document 10 are described as communications between or a record of a communication between the legal advisor and client for the purposes of giving legal advice according to the principles as set out in Esso Australia Resources Limited v The Commissioner of Taxation [1999] HCA67. It is considered that this claim is justified. 9 Documents 100 to 119 inclusive appear to be in relation to matters outside the substantive matter of this application. Each of those documents is subject to a claim for legal professional privilege as being communications between the legal advisor and the client or a record of a communication between the legal advisor and the client for the purposes of giving legal advice. Notwithstanding that these documents appear to be outside the substantive matter, it is considered that the claim for legal professional privilege is justified. 10 Documents 120 and 121 are also subject to a claim for legal professional privilege on the basis that those documents are a record of communication made between the legal advisor and client for the purposes of giving legal advice and pursuant to the principles as set out in Ciesielski v Broadway Shopping Centre Sydney Pty Limited and Esso Australia Resources Limited v The Commissioner of Taxation. It is considered that that claim is justified. 11 The Affidavit by Lesley Ruth Finn sets out 7 documents, a claim has been made by the Respondent that those documents are subject to privilege. Documents 1, 2 and 3 have been brought into existence as a result of communications between the parties and between the Respondent and its legal advisor. In any circumstance, it is preferable for parties to discuss issues and to reach settlement of those issues if possible without resorting to legal action. In accordance with the principles in the decision in Ciesielski v Broadway Shopping Centre Sydney Pty Limited , the claim by the Respondent is upheld. Document 4 is a communication between the Respondent and its legal advisor made for the purposes of litigation and the Respondent's claim that this document is subject to legal professional privilege and in accordance with the decisions of Ciesielski v Broadway Shopping Centre Sydney Pty Limited and Esso Australia Resources Limited v The Commissioner of Taxation the claim by the Respondent is upheld. Documents 5, 6 and 7 is material created internally for the purposes of commencing or maintaining action against the Applicant and accordingly, those documents are therefore privileged as they were made for the dominant purposes of preparing for contemplated legal proceedings and the Respondent's claim should be upheld. Orders (1) The Respondent's claim for legal professional privilege is upheld in relation to documents 1 to 99 inclusive, excluding document 10, in the Affidavit of Lesley Ruth Finn dated 5 February 2002. (2) The Respondent's claim for legal professional privilege is upheld in relation to documents 100 to 119 inclusive in the Affidavit of Lesley Ruth Finn dated 5 February 2002. (3) The Respondent's claim that documents 1, 2 and 3 in the Affidavit of Lesley Ruth Finn dated 1 February 2002 are privileged as they came into existence for the purposes of without prejudice communications is upheld. (4) The Respondent's claim that document 4 in the Affidavit of Lesley Ruth Finn dated 1 February 2002 is subject to legal professional privilege is upheld. (5) The Respondent's claim that documents 5, 6 and 7 in the Affidavit of Lesley Ruth Finn dated 1 February 2002 are subject to legal professional privilege is upheld. 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.