> Land and Environment Court of New South Wales CITATION : Woolworths Limited v The Warehouse Group (Australia) Pty Limited [2003] NSWLEC 137 APPLICANT Woolworths Limited (ACN 000 014 675) PARTIES : RESPONDENT The Warehouse Group (Australia) Pty Limited (ACN 003 038 702) FILE NUMBER(S) : 40805 of 2002 CORAM: Cowdroy J KEY ISSUES: Practice and Procedure :- subpoena for production of instructions issued to experts for preparation of reports - confidential communications protected by Evidence Act 1995 Evidence Act 1995, s 119 Federal Court of Australia Practice Direction 1995 LEGISLATION CITED: Land and Environment Court Rules 1996, Pt 6 r 1 Land and Environment Court Practice Direction No. 20 Supreme Court Rules 1970, Pt 36 r 13(2), Pt 36 r 13C, Pt 36 r 13CA CASES CITED: DATES OF HEARING: 11/06/2003 DATE OF JUDGMENT: 06/19/2003 APPLICANT Mr C. McEwen (Barrister) SOLICITORS Mallesons Stephen Jaques LEGAL REPRESENTATIVES: RESPONDENT Mr M. Wright (Barrister) SOLICITORS Deacons Lawyers JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40805 of 2002 Cowdroy J 19 June 2003 Woolworths Limited (ACN 000 014 675) Applicant v The Warehouse Group (Australia) Pty Limited (ACN 003 038 702) Respondent Judgment Respondent's motions 1 The respondent filed a notice of motion dated 2 May 2003 seeking orders that documents referred to in several subpoenas dated 15 April 2003 issued by it to three of the applicant's experts and to the applicant's solicitor be produced. 2 By another notice of motion issued by the respondent dated 26 May 2003 the respondent seeks an order that documents of a similar kind to those referred to in the respondent's first motion be produced by the applicant pursuant to a Notice to Produce filed 15 April 2003 ("the notice to produce"). History of the proceedings 3 In these proceedings the applicant claims that a development consent granted to the respondent in respect of a commercial use for premises at Warwick Farm is invalid. The applicant has conducted far reaching investigations into the operations of the respondent's commercial businesses at locations other than those which are the subject of the challenged development consent. 4 The applicant has retained three town planning consultants namely JBA Urban Planning Consultants ("JBA"), Martin Andrew Meade Hill ("Mr Hill") and Neil Ingham ("Mr Ingham"). In some instances such instructions were issued directly by the applicant directly and on other occasions through the applicant's solicitor, namely Mr Andrew Ross Beatty. 5 The respondent's subpoenas seek production of instructions given to the experts and communications held with or by them by any person. The documents sought by the respondent are in substantially the same category in each subpoena. Using the subpoena to JBA as an example such instructions state as follows:- 1. All documents (including photographs and emails) constituting, evidence or recording: (a) Instructions to you from any person or entity to prepare evidence for these proceedings whether created before or after the commencement of these proceedings (these proceedings being commenced on or about 25 October 2002). (b) Written or oral communications to or from any person or entity relating to the preparation of evidence for these proceedings whether created before or after the commencement of these proceedings. … (g) The facts, matters and assumptions upon which any opinions expressed in any draft report or affidavit prepared by you for the purpose of these proceedings are based. In the subpoena to Mr Hill another request which is common to the subpoenas is stated as follows:- 2. Instructions to you, your employees or "Hill PDA" to carry out an investigation or examination of all, or any, existing or proposed retail premises of "The Warehouse" or the Respondent in the period 1 January 2001 to date concerning non-compliance with planning regimes. The notice to produce seeks production of substantially the same documents. 6 The respondent submits that it is entitled to have access to the instructions given to the applicant's experts in order to assess the basis upon which their expert testimony has been provided. The respondent claims that if it is denied such instructions, it will be prejudiced because its own experts will not know the premise upon which the applicant's experts have formulated their opinions. 7 In support of its submissions the respondent has referred the Court to the Federal Court of Australia Practice Direction 1995, entitled "Guidelines to Expert Witness in proceedings in the Federal Court of Australia". Such Guidelines provide, inter alia:- There should be attached to the report, or summarised in it, the following: (i) all instructions (original and supplementary and whether in writing or oral) given to the expert which define the scope of the report; (ii) the facts, matters and assumptions upon which the report proceeds; and (iii) the documents and other materials which the expert has been instructed to consider. Applicant's motion 8 By notice of motion filed on 5 June 2003 the applicant moves the Court to set aside various paragraphs in each of the above subpoenas on the ground that the documents sought are confidential. Additionally with respect to paragraph 1(d) of the subpoena served upon Mr Beatty, it is submitted that such documents do not relate to the property which is the subject of the proceedings and does not adequately particularise the documents sought. The applicant submits that it requires Mr Beatty to make a judgment as to which of the documents relate to the issues in the proceedings and that those documents are not reasonably necessary to enable a fair resolution of the dispute. 9 The applicant makes the same submissions to similar paragraphs in other subpoenas specified in its notice of motion. Such paragraphs include paragraph 1(h) of the subpoena served on JBA, which calls for the following documents:- 1(h) Instructions to you, Mr Vince Berkhout, your employees or "JBA and Associates" to carry out an investigation or examination of all, or any, existing or proposed retail premises of "The Warehouse" or the Respondent in the period 1 January 2001 to date concerning non-compliance with planning regimes. 10 Paragraph 2 of the subpoena served upon Mr Ingham and also Mr Hill, are substantially the same as paragraph 1(h) as set out above from JBA. Paragraph 1(a) of the notice to produce requires production of instructions provided directly by the applicant to JBA and to other persons who were retained to investigate the respondent's commercial outlets. Findings 11 Part 6 r 1 of the Land and Environment Court Rules 1996 adopts, inter alia, Pt 36 of the Supreme Court Rules 1970 other than Pt 36 r 13C and r 13CA. Part 36 r 13(2) relevantly provides that:- (2) The Court shall not compel, and rule 16 shall not require, production of a document or an answer to a question, unless and until the Court directs that the production or answer shall not be prevented by this subrule: (a) over the objection of a person if evidence of the document, or of an answer to the question, could not be adduced in the proceedings over the objection of the person, by virtue of the operation of Part 3.10 Division 1 of the Evidence Act. 12 Section 119 of the Evidence Act 1995 ("s 119") is contained in Pt 3.10 Div 1 of the Evidence Act 1995 and provides:- s 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. 13 The applicant submits that each of the documents referred to in the respondent's notices of motion are immune from production on the ground that such documents comprise confidential communications within the meaning of s 119. 14 Section 119 has extended the limited scope of "legal professional privilege" to confidential communications between the client and another person (see Odgers S, "Uniform Evidence Law" (5th ed), Lawbook Co., Sydney, 2002 at p 361). 15 The Guidelines pertaining to the practice in the Federal Court of Australia do not address the requirement of confidentiality which is contained in s 119. The Land and Environment Court Practice Direction No. 20 entitled "Consolidated Expert Witness Practice Direction" does not contain an analogous provision of the Guidelines upon which the respondent relies. The Guidelines, being formulated for a different jurisdiction, are irrelevant. 16 The documents sought to be produced are clearly of a confidential nature and were created for the purpose of the litigation. The Court therefore upholds the submission of the applicant that by virtue of s 119 the applicant cannot be compelled to produce them. 17 Additionally, the applicant has stated that it does not intend to adduce any evidence, nor make any submission relating to the use by the respondent of any of its commercial outlets other than that to which the challenged consent pertains. On this basis, the documents relating to other commercial premises of the respondent are irrelevant. 18 With respect to paragraph 1(d) of the subpoena addressed to Andrew Ross Beatty the Court considers that the claim for privilege is well founded pursuant to s 119. The same conclusion is reached by the Court with respect to the remaining challenged paragraphs of the various subpoenas and also paragraph 1(a) of the notice to produce addressed to the applicant. Orders 19 The Court makes the following orders:- 1. The respondent's notices of motion dated 2 May 2003 and 26 May 2003 are dismissed; 2. Paragraph 1(d) of the subpoena served on Andrew Ross Beatty dated 15 April 2003 is set aside; 3. Paragraph 1(h) of the subpoena served on JBA Urban Planning Consultants dated 15 April 2003 is set aside; 4. Paragraph 2 of the subpoena served on Neil Ingham dated 15 April 2003 is set aside; 5. Paragraph 2 of the subpoena served on Martin Andrew Meade Hill dated 15 April 2003 is set aside; 6. Paragraph 1(a) of the notice to produce to Woolworths Limited filed 15 April 2003 is set aside. 7. The costs of the respondent's notices of motion and of the applicant's notice of motion are to be costs in the proceedings. 8. Liberty to apply if further issues arise from the subpoenas or notice to produce filed 15 April 2003. 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.