Ziade v Randwick City Council [2000] NSWSC 1198

New South Wales Supreme Court

CITATION : Ziade v Randwick City Council [2000] NSWSC 1198 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 5148/99 HEARING DATE(S) : 28 November 2000 JUDGMENT DATE : 28 November 2000

PARTIES : Jack Ziade (Plaintiff) Randwick City Council (Defendant) JUDGMENT OF : Bergin J

COUNSEL : G Downes QC/P Tomasetti (Plaintiff) A Galasso (Defendant) SOLICITORS : Gregory J Halpin (Plaintiff) Deacons Graham & James (Defendant) CATCHWORDS : [EVIDENCE] - Application by defendant to prevent the plaintiff having access to documents produced under a Notice to Produce on the basis of client legal privilege (ss 118 and 119) - Whether privilige has been waived (ss 122 & 126) - Whether document should be withheld on grounds of fairness. LEGISLATION CITED : Evidence Act 1995 (NSW): ss 122 and 126 Local Government Act 1919 (NSW): s 10A(2)(g) Ampolex Ltd v Perpetual Trustee (1996) 40 NSWLR 12 CASES CITED : Attorney General (NT) v Maurice (1986) 161 CLR 475 Goldberg v Ng (1995) 185 CLR 83 DECISION : Access allowed.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BERGIN J

DATE: TUESDAY 28 NOVEMBER 2000

5148/99 JACK ZIADE v RANDWICK CITY COUNCIL

JUDGMENT

1 This is an application brought by the defendant to prevent the plaintiff from having access to documents produced pursuant to a notice to produce. 2 In the main proceedings the plaintiff challenges the validity of certain of the defendant's resolutions, relating to parking arrangements around and near the plaintiff's property and business which is the Ritz Cinema at Randwick. There were previous proceedings in the Land and Environment Court the subject of judgment by the Chief Judge of that Court in late November 1999. 3 On 7 December 1999 after the judgment of the Land and Environment Court, the Council resolved to change the parking arrangements by reducing the two hour limit on certain streets to one hour (the December resolution). There were five streets involved and the plaintiff claims these changes directly affected his business at the Ritz. 4 When the plaintiff became aware of the resolution of 7 December 1999 he approached the Supreme Court and obtained an injunction on 22 December 1999, by which the defendant was restrained from physically implementing any change to the parking arrangements in those five streets the subject of the December resolution. That injunction was in force up to and including 31 January 2000. On 31 January by consent the injunction was continued until further order. 5 On 1 February 2000 the defendant rescinded the resolution of 7 December 1999 (the February resolution). The Council resolved that the parking arrangements then in place in an area known as The Spot were to be retained pending a further review but, once again resolved to reduce the two hour parking limit to one hour, on the five streets the subject of the December resolution. 6 The February resolution had an almost identical effect as the December resolution but for a portion of one of the streets, St Paul's Street. After that resolution, the plaintiff once again approached this Court and Bryson J granted an interim injunction on 22 February restraining the defendant from implementing the February resolution. 7 On 3 March 2000 Bryson J granted an injunction pending final disposition of these proceedings and restrained the defendant from implementing the parking arrangements in the December resolution and in the February resolution. One of the conditions of the injunction granted by Bryson J was that the plaintiff was to pursue the proceedings expeditiously. That was done. 8 The matter came before me in my expedition list and subject to the directions it was expedited and given a hearing date on 31 July 2000 for three days. 9 On 18 April 2000 the Council resolved on a without prejudice basis pursuant to "legal advice", to undertake a further survey of residences and businesses in the area known as The Spot in relation to changing the two hour residents' preferential parking scheme to a one hour parking scheme in the five streets to which I have referred earlier (the April resolution). 10 The transcript of the discussion at the April meeting relating to the proposed review records that a member present at that meeting had said that there had been an injunctive proceedings in which the Council was not allowed to put up signs but the Council was not prevented from researching all the views. The Mayor is noted in the transcript as saying that: "You might recall that you cannot actually rescind any decision until the further Court hearing". 11 Notwithstanding that statement, on 23 May 2000 the Council received a report from the Director of Asset and Infrastructure Services (the Director), relating to The Spot precinct parking scheme, ( Ex A(2) Tab 57). The report deals with a number of issues, but in particular, surveys of the five streets the subject of these proceedings. 12 There are references to the response rate to the survey, two in each case in respect of each of the five streets. The Director of Asset and Infrastructure Services recommended to the Council that the reduction in parking limits from 2 hours to 1 hour in three only of the five streets the subject of the December and February resolutions should be implemented. 13 On 23 May 2000 the Council resolved that "subject to the concurrence of the Randwick traffic committee and the outcome of the current proceedings in the Supreme Court," the parking arrangements recommended by the Director in respect of three streets be implemented (the May resolution). 14 On 3 July 2000, the plaintiff applied for the vacation of the trial date. The Court was informed of the May resolution and was also informed that Council elections had occurred and that there was a newly constituted Council. The Court was also provided with a copy of a motion to Randwick Council giving notice that the May resolution be rescinded which was listed for hearing at the Council meeting on 18 July 2000. 15 Although Mr Newton who appeared for the Council ably sought to keep the trial date I was satisfied that in all the circumstances it was appropriate to vacate the trial date and to keep the matter in the expedition list to ensure that it be given a hearing date as soon as the plaintiff was in a position to meet the new circumstances that had arisen by reason of the May resolution. 16 On 8 August 2000, the Council met again. It is documents created from and presented at that meeting which are the subject of the defendant's application to preclude the plaintiff from having access on the basis of client legal privilege. At this meeting the Council rescinded the May resolution (the August resolution).