Wingecarribee Shire Council v O'Shanassy [2014] NSWLEC 1025

Land and Environment Court New South Wales

Medium Neutral Citation: Wingecarribee Shire Council v O'Shanassy [2014] NSWLEC 1025 Hearing dates: 29 January 2014 Decision date: 12 February 2014 Jurisdiction: Class 5 Before: Acting Registrar Walton Decision: All claims for privilege are upheld Legislation Cited: Evidence Act 1995 Cases Cited: Commissioner of Federal Police and Another v Propend Finance Pty Limited and Others 91997) 188 CLR 501 Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 975 Mallard v R [2005] HCA 68 New South Wales v Jackson [2007] NSWCA 279 R v Petroulias (No 22) [2007] NSWSC 692 Category: Interlocutory applications Parties: Wingecarribee Shire Council (Prosecutor) Paul Gerard O'Shanassy (Defendant) Representation: Mr D O'Gorman-Hughes for the Defendant Mr McFadzean for the Prosecutor File Number(s): 51130 of 2012

Judgment

The Application 1Mr O'Shanassy has been charged with carrying out development without consent. 2In the course of preparing for the hearing a number of subpoenas and Notices to Produce have been served. Both parties have made claims of privilege over some of the documents produced to the Court. The parties have requested that I determine those claims.

The Law 3Both parties agreed that the privilege claims should be dealt with under the Evidence Act 1995 not the common law. Both parties also agreed that the burden of proof is on the "client" objecting to the evidence. 4The relevant sections of the Evidence Act are: 117 Definitions confidential communication means a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. confidential document means a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. Legal advice 118 Legal advice 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 made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. Litigation 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. 5Section 122 sets out when privilege may be lost: 122 Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if: (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party. (4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.