VAW (Kurri Kurri) Pty Limited v Scientific Committee [No. 2] [2002] NSWLEC 141

Land and Environment Court of New South Wales

CITATION : VAW (Kurri Kurri) Pty Limited v Scientific Committee [No. 2] [2002] NSWLEC 141 APPLICANT VAW (Kurri Kurri) Pty Limited PARTIES : RESPONDENT Scientific Committee FILE NUMBER(S) : 40110 of 2001 CORAM: Cowdroy J KEY ISSUES: Practice and Procedure :- privilege - application to reopen hearing LEGISLATION CITED: CASES CITED: Smith v New South Wales Bar Association (1992) 176 CLR 256 DATES OF HEARING: 02/04/2002; 03/04/2002, 04/04/2002; 05/04/2002 EX TEMPORE JUDGMENT DATE : 04/05/2002

APPLICANT Mr S Rares, SC with Mr M Leeming (Barrister)

SOLICITORS Blake Dawson Waldron LEGAL REPRESENTATIVES: RESPONDENT Mr B Preston, SC with Ms S Pritchard (Barrister)

SOLICITORS National Parks and Wildlife Service

JUDGMENT: IN THE LAND AND MATTER No. 40110 of 2001 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 5/04/2002

VAW (Kurri Kurri) Pty Limited Applicant v Scientific Committee Respondent

JUDGMENT [No. 2]

1. An application has been made by the respondent to these proceedings to re-open the hearing for the purpose of tendering certain documents in respect of which a claim for legal professional privilege had been made by the respondent ("the privileged documents"). It is essential to consider the history of this matter in order to deal with this application. 2. The history commenced with an application made to the Court by the applicant seeking access to the privileged documents on the ground that privilege had been waived. 3. On 10 August 2001 His Honour Bignold J delivered a judgment in which he rejected such application. 4. When this hearing commenced four days ago there was no suggestion that the claim for privilege would not be maintained. Indeed during the course of the hearing various claims were made by the applicant that the privilege had been waived but those claims were steadfastly denied by the respondent. The respondent now seeks to re-open this hearing in order to tender the privileged documents. Such application is made because the respondent found that it was unable to make a submission in respect of the content of the privileged documents. 5. The principles which must guide this Court in respect of an application to re-open have been clearly established by the High Court of Australia in Smith v New South Wales Bar Association (1992) 176 CLR 256. The tension that exists between the finality of litigation and the need to take all steps to minimise further litigation was explained by the High Court in the joint judgment of their Honours Brennan, Dawson, Toohey and Gaudron JJ at p 265. In that passage the Court observed that the power is discretionary and although it exists up until the entry of judgment, it is one that is to be exercised having regard to the public interest in maintaining the finality of litigation. The Court also observed at p 266 as follows:- If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application.