Land and Environment Court of New South Wales CITATION : Outline Planning Consultants Pty Limited v. Maclean Shire Council [1998] NSWLEC 89 APPLICANT Outline Planning Consultants Pty Ltd PARTIES : RESPONDENTS Maclean Shire Council FILE NUMBER(S) : 10521 of 1998 CORAM: Pearlman J KEY ISSUES: :- LEGISLATION CITED: Evidence Act 1995 ss 119, 131 Environmental Planning and Assessment Act 1979 Sevic v Roarty (Court of Appeal, 14 August 1998, unreported); CASES CITED: Akins and Ors v Abigroup Ltd (1998) 43 NSWLR 539); Trade Practices Commission v Sterling (1978) 36 FLR 244 Lockhart J, at p 245 DATES OF HEARING: 22/10/98 DATE OF JUDGMENT: 11/04/1998 APPLICANT Mr J J Webster, Barrister Woolf Associates LEGAL REPRESENTATIVES: RESPONDENT Mr A M Hawkes, Solicitor Pike Pike & Fenwick JUDGMENT: JUDGMENT The present question for determination in these proceedings is whether the respondent may have access to certain documents produced in response to a notice to produce. The applicant claims the documents are either subject to client legal privilege under s 119 of the Evidence Act 1995 or are privileged as evidence of settlement negotiations under s 131 of that Act. A preliminary issue arises as to whether or not the Evidence Act applies derivatively to interlocutory proceedings such as these, which are pre-trial processes and do not at this stage involve adducing evidence at the trial. This issue is not completely settled (see Sevic v Roarty (Court of Appeal, 14 August 1998, unreported), Akins and Ors v Abigroup Ltd (1998) 43 NSWLR 539). However, the parties have not objected to the question being determined on the basis that the principles of the Evidence Act exclusively apply, and I am content to proceed on that basis. The substantive proceedings involve a class 1 merit appeal by the applicant, Outline Planning Consultants Pty Ltd, against the refusal of Maclean Shire Council, the respondent, to grant development consent in respect of the expansion of an existing quarry situated at Sheehy's Lane, Tyndale. The development application was made with the consent of P A McLennan and C C McLennan, the owners of the land. Documents were produced by the applicant in response to a notice to produce served upon it by the respondent. The documents were produced in an envelope marked "privileged" with a schedule attached. They were not in order nor in a form that corresponded with the schedule, and accordingly I have renumbered them from 1 to 13 in chronological order. The background to the substantive proceedings is particularly pertinent to determining whether access to the documents should be granted. The relevant facts and dates are as follows: * 5 March 1997: Development application is lodged with Maclean Shire Council; * A right of appeal in respect of a deemed refusal of the development application arises at some time during 1997. (The precise date depends upon whether and for how long the development application was available for inspection by the public - s 96(1)(c) of the Environmental Planning and Assessment Act 1979 - but those details are not presently before the Court); * 5 December 1997: The applicant writes to the respondent acknowledging the council's "recommendation for refusal", and providing information as to what investigations it intends to carry out in order to avoid refusal of development consent; * 8 January 1998: The council notifies the applicant that its consultant's report had recommended refusal of the development consent upon two grounds related to the impact of using Sheehy's Lane as a haulage route. It suggests to the applicant that it "may wish to seek alternative access, or propose engineering solutions to the issues raised ..."; * May 1998: The applicant engages the services of Richard Heggie Associates Pty Ltd, an acoustic consultant, and RoadNet Pty Ltd, a roads and traffic consultant, to investigate the issue of impact arising from the use of Sheehy's Lane as a haulage route; * 9 June 1998: The applicant notifies RoadNet (in a letter subject to the claim for privilege) that proceedings in the Court were likely and that its letters and report should be headed "without prejudice"; * 11 June 1998: The development application is refused by the council for reasons concerning the impact of the use of Sheehy's Lane as a haulage route; * 6 August 1998: Class 1 proceedings are commenced. In the light of this background, I have inspected the documents, and concluded, for the undermentioned reasons, that documents 1, 2, 3, 4, 7 and 8 constitute settlement negotiations, and that the remainder of the documents are subject to client legal privilege. Documents 1, 2, 3, 4, 7 and 8 The applicant's claim is that these documents are subject to s 131(1) of the Evidence Act. Section 131 relevantly provides: "131(1) Evidence is not to be adduced of: (a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or (b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute." There are a number of specified exceptions to the operation of s 131(1), but, having regard to the circumstances of this case and the nature of the documents, these exceptions do not apply. However, subsection 5 is relevant and it provides; "(5) In this section: (a) a reference to a dispute is a reference to a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding; ..." The documents (which are described below) are dated respectively 30 April 1998, 1 May 1998, 1 June 1998, 3 June 1998, and 11 June 1998. As at those respective dates, the applicant was aware that the respondent intended to refuse to grant consent to the development application, although the respondent had not actually done so. The respondent had made clear its concerns about amenity impact and had suggested that the applicant might explore alternative access or suggest engineering solutions, with a view to trying to overcome those concerns. Furthermore, as at those respective dates, a right of appeal to this Court had arisen from the respondent's deemed refusal of the applicant's development application. I turn to the actual documents. Document 1 is a letter dated 30 April 1998 from RoadNet to the applicant, setting out RoadNet's task with respect to reporting on amenity issues and estimating the fees involved. Document 2 is a fax dated 1 May 1998 from the applicant to the owners of the subject land, enclosing copies of letters of the same date to both RoadNet and Richard Heggie Associates. The letter to the owners merely enclosed the other documents and outlined the consultants' fees. Each of the letters to the consultants states in detail the tasks which they were respectively required to carry out by way of assessment of potential adverse impact upon Sheehy's Lane, including recommendations for reducing perceived impacts. Document 3 comprises a fax dated 1 June 1998 from RoadNet to the applicant, enclosing a draft report. The draft report states that it considers how the concerns which have been raised might be addressed, and it contains recommendations for a strategy which might result in approval of the proposed development. Document 4 comprises various pages of a report dated 3 June 1998 of Richard Heggie Associates. Those pages contain noise assessments and recommendations for noise control in relation to Sheehy's Lane. Each of the pages is endorsed with various comments summarising, querying and highlighting various passages. Document 7 is a report from RoadNet, dated 11 June 1998 and headed "without prejudice". It appears to be the final report arising out of the draft report which is document 3. It contains recommendations for the implementation of measures to minimise amenity impacts in relation to Sheehy's Lane. Document 8 is a letter from RoadNet to the applicant, dated 11 June 1998, and also headed "without prejudice". It contains a number of alternative strategies for the purpose of meeting opposition to the quarry proposal. I disregard the heading "without prejudice" on documents 7 and 8 as not determinative of whether access should be granted to them. As I have earlier pointed out, the applicant had, on 9 June 1998, written to RoadNet asking it to mark its communications "without prejudice" as proceedings in this Court were likely. But it is clear from the contents of document 8 that, as at 11 June 1998, RoadNet was unaware that the respondent had on that very day refused to grant development consent. In documents 7 and 8, RoadNet was still suggesting strategies for settling the dispute with the respondent. I find that, at the respective dates of all these documents, a dispute within the meaning of s 131(5)(a) had arisen between the applicant and the respondent. The applicant had a right of appeal, which, if upheld, would have resulted in an order for relief in its favour, that is, the grant of development consent by this Court. Moreover, all of the documents arise out of that dispute. Each one deals with measures or strategies for settling that dispute, that is, meeting the concerns with a view to obtaining development consent from the council. In terms of s 131(1), I find that each of the documents is a communication between the applicant and a third party in connection with an attempt to negotiate a settlement of the dispute. Accordingly, the respondent's access to each of those documents is denied. Documents 5, 6, 9, 10, 11, 12 and 13 All of these documents are confidential communications between the applicant and third parties. The applicant claims that they are protected by client legal privilege within s 119 of the Evidence Act. Section 119 provides as follows: "119. Evidence is not to be adduced if, on objection by a client, the court finds that adducing 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." Section 117(1)(b) provides that "client" includes an employee or agent of a client. The applicant may therefore be regarded as a "client" for the purpose of s 119. The question is whether each of these documents was made for the dominant purpose of the client being provided with professional legal services relating to anticipated proceedings in which the applicant is or may be a party. Each of these documents bears a date between 9 June 1998 and 22 June 1998. At that time, as I have earlier mentioned, the applicant had stated that proceedings in this Court were likely (although proceedings did not actually commence until 6 August 1998). I am satisfied therefore that proceedings in this Court were anticipated. I am also satisfied, having inspected each document in the light of the facts which I have outlined, that each of them was made for the dominant purpose of the client being provided with professional legal services relating to the anticipated proceedings. The expression "professional legal services" is not defined in the Evidence Act. I note, however, that, in Trade Practices Commission v Sterling (1978) 36 FLR 244 Lockhart J, at p 245, stated the common law as including, amongst the "purposes of litigation", evidence which is to be used in anticipated litigation. I turn to each of the documents. Document 5 is a letter from the applicant to Richard Heggie Associates, dated 9 June 1998 and headed "without prejudice". It consists of a number of comments on a draft report, and contains further instructions for the preparation of a report. Document 6 is a similar letter from the applicant to RoadNet. Again, it is dated 9 June 1998 and is headed "without prejudice". It is this letter which stated that proceedings in this Court are likely. It contains comments on a draft report, and further instructions for the preparation of a report. Document 9 is a letter from Richard Heggie Associates dated 17 June 1998, enclosing a draft report (document 10). In that letter, Richard Heggie Associates, amongst other things, seeks advice as to when the "finalised" report is required. Document 10 is a draft report of Richard Heggie Associates dated 17 June 1998, which contains an investigation of noise impact in Sheehy's Lane, and contains results and recommendations. Document 11 is a copy of documents 9 and 10. Document 12 is a fax from the applicant to Richard Heggie Associates containing comment on and instructions relating to the latter's draft report. The fax is dated 18 June 1998 and is headed "without prejudice". Document 13 is a letter dated 22 June 1998 from Richard Heggie Associates to the applicant enclosing two copies of "our finalised" report, and making some comments in relation to it. The actual report is not attached, and apparently privilege is claimed only in relation to the letter. I find that each of these documents is a confidential communication between the client and a third party made for the purpose of the proceedings. Each document relates to expert opinion evidence crucial to the anticipated merit appeal, taking into account the express reasons for refusal being the impact of the proposed development upon Sheehy's Lane. Each of the documents was made for the dominant purpose of the applicant being provided with professional legal services relating to anticipated proceedings in this Court in which the applicant is a party. These documents are accordingly subject to client legal privilege, and access to them by the respondent is denied. My formal order is therefore as follows: Access is denied to the respondent in respect of all the documents, which are numbered 1 to 13 inclusive, in the bundle marked "privileged" produced in response to the respondent's notice to produce addressed to the applicant. The exhibits may be returned. I make no order as to costs. 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.