Bailey v Department of Land and Water Conservation [2009] NSWCA 100

Reported Decision: 74 NSWLR 333 Appeal Outcome: Special leave dismissed with costs by the High Court, 2 October 2010 s118/2009

New South Wales Court of Appeal

CITATION: Bailey v Department of Land and Water Conservation [2009] NSWCA 100

HEARING DATE(S): 19 February 2009

JUDGMENT DATE: 5 May 2009

JUDGMENT OF: Allsop P at 1; Hodgson JA at 6; Tobias JA at 7

(a) Leave to appeal granted; DECISION: (b) Direct the appellants to file and serve their Notice of Appeal within 7 days of the date of this order; (c) Appeal dismissed; (d) The appellants to pay the respondents' costs of the summons for leave to appeal and of the appeal.

CATCHWORDS: PROCEDURE – Discovery and interrogatories – Discovery and inspection of documents – Production and inspection – Grounds for resisting production – Legal professional privilege – Client legal privilege – What constitutes – Whether party supplied sufficient evidence in support of claim for privilege – Whether primary judge was entitled to inspect documents to determine whether they attracted privilege under the Evidence Act and common law – Identification of the "client" for the purposes of s 119 of the Evidence Act – Whether in-house lawyers of Department provided professional legal services – Waiver of privilege – Implied waiver and disclosure waiver – Whether an objection to answering a specified interrogatory on the basis that this would disclose privileged information can be made at the time the answer to the interrogatory is called for – Whether production of certain parts of a redacted document amounted to implied waiver of the claim for privilege over the redacted parts – Whether disclosure of redacted document created inconsistency or unfairness – Whether the prosecutorial duty of disclosure of documents material to the defence prevented privilege from attaching - COSTS – General rule – Costs follow the event – Whether departure from the general rule justified in the circumstances - EVIDENCE – Affidavits – Use of affidavits – Whether affidavits should have been admitted where deponents not cross-examined - APPEAL – Admission of fresh evidence