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. 6. In this case the respondent had made a forensic decision not to waive privilege in respect of the privileged documents. That is clear not only from the early stages of these proceedings when Bignold J delivered his judgment on 10 August 2001 but subsequently. In the course of the hearing an affidavit sworn by John Andrew Gibbons dated 28 March 2002 was tendered which deposed to a meeting that was held on 18 May 2001 between representatives of the respondent and Mr Brian Preston SC. Mr Preston provided the advice to the respondent which has founded the claim for privilege. The affidavit was carefully crafted to enable a submission which invited the Court to draw an inference concerning the content of the advice. It skilfully and deliberately avoided revealing the advice. 7. The applicant submits that it would be severely prejudiced if leave is granted to the respondent to re-open the hearing for the purpose of tendering the privileged documents. It claims that the case could have been differently structured had it known such evidence was to be admitted. It says that it could have required witnesses for cross-examination. It could also have engaged in interlocutory procedures to investigate various matters which it regarded as important in the preparation of its case. In summary it submits that it would have arranged its case differently had it been aware that privilege was to be waived. 8. In response the respondent says that it will make any witnesses available for cross-examination as required if the leave sought is granted. 9. On an application such as this the Court is obviously concerned to ensure that any evidence which a party wishes to adduce should be admitted and considered by the Court. However there is the contravening argument, namely that the interests of justice relate not only to the moving party on the motion, but also to the other party. The interests of justice for both parties is paramount. 10. The Court is satisfied that the re-opening of the case during the course of final submissions and the admission of the privileged documents could operate to the distinct disadvantage of the applicant. Further the Court is satisfied that the respondent's conduct of its case was calculated. This is not a situation in which evidence has been overlooked by error or omission. Nor is it a case where the proceedings have taken an unexpected turn. 11. In summary the Court is satisfied that there has been a deliberate decision not to waive privilege in respect of the privileged documents. In these circumstances the Court adopts the principle established by the High Court, namely that ordinarily such conduct will tell decisively against the application. For these reasons the application to re-open is refused. * * * 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.