Haddad v Chief Commissioner of State Revenue [2016] NSWCATAD 70

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Haddad v Chief Commissioner of State Revenue [2016] NSWCATAD 70 Hearing dates: 15 December 2015, 5 April 2016 Date of orders: 14 April 2016 Decision date: 14 April 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: P Wass SC, Senior Member Decision: Claims for privilege upheld. Catchwords: Interlocutory – legal professional privilege. Legislation Cited: s. 118 and 119 Evidence Act 1995 Category: Procedural and other rulings Parties: Sally Haddad (Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel: A Rider (Respondent)

Solicitors: Mr J Haddad (as agent for the Applicant) Crown Solicitors Office (Respondent) File Number(s): 1510454

REASONS FOR DECISION

INTRODUCTION 1. In this matter the respondent served upon the applicant, as is required, a bundle of documents pursuant to s.58 of the Administrative Decisions Review Act 1997. It is asserted by the respondent that the bundle of documents contains documents within the possession of the respondent that the respondent considers to be relevant to the determination of the matter, in respect of which the respondent claims are subject to legal professional privilege and as such resists their production to the Tribunal (other than for the purpose of determining the privilege claim) and to the applicant. 2. On 15 December 2012, the matter was listed before me for hearing of the privilege claim. The applicant's husband, Mr Jim Haddad, appeared to assist the applicant. No objection was taken to that course and I allowed him leave to appear on her behalf for the purposes of determining the claim for privilege. 3. The respondent asserts a claim of privilege pursuant to s.118 and s.119 of the Evidence Act 1995 ("the Act") respectively on grounds set forth in the affidavit of Holly Morgan dated 7 September 2015, which was admitted without objection. 4. The applicant has raised three concerns in respect of the claim for privilege. First, she has not seen the documents the subject of the claim and thus cannot know how important they may be to her case; second, the claim is being made by a governmental body and as such she is concerned that it may not be acting ethically in making the claim; and third, she is concerned that the actions of the respondent were undertaken with a view to stymying the litigation in related Supreme Court proceedings. 5. In those circumstances, and acknowledging that the applicant is not legally represented in these proceedings, it was agreed between the parties that I ought undertake a review of the documents with a view to indicating my preliminary view as to whether or not the documents are privileged and once that had occurred, the matter would be stood over for further oral argument on 9 February 2016. 6. Accordingly on 29 January 2016, I informed the parties of my preliminary view of the documents. In that indication I did not seek in each case to make a detailed ruling in respect of each document or set out with any detail the particular subsection of s.118 or s.119 of the Act, that the documents fall within, but rather dealt with the documents in categories. Indeed in many cases, the documents arguably fall within a number of subsections. Neither party has sought reasons for my ruling in respect of each document. Accordingly I have not sought to provide reasons in respect of each document, but have rather dealt with the documents in their relevant categories. 7. When the matter was listed for further argument on 9 February 2016, the applicant sought an adjournment, as Mr Haddad had fallen ill. The respondent consented to the adjournment and the matter was again listed for further argument on 5 April 2016, with directions being made for the matter to proceed on the papers if the parties consented to that course, and with any further submissions to be put in writing. The parties complied with those orders and filed written submissions. 8. On 4 April 2015 the parties indicated that they wished to proceed on the basis of the oral argument that had already taken place and otherwise on the written submissions. Apart from one matter, I have acceded to that application. 9. On 5 April 2015, Mr Haddad appeared by telephone. Mr Rider again appeared for the respondent. It was agreed that the determination of the privilege claim could take place without the need for further oral argument. The one matter that I raised was in respect of what ought happen to the documents now that they have been seen by me for the purposes of determining the privilege claim. Mr Haddad had proposed in the applicant's written submissions that the documents ought be destroyed to avoid them being read by any member of the Tribunal who ultimately determines this matter. During the course of oral argument however it was agreed between the parties that the documents ought be returned to the respondent. 10. The only further matter in respect of the claim for privilege over the documents put by the applicant in the written submissions dated 29 March 2016 was that as a result of the privilege being upheld, the determination of this matter will not be based on all of the relevant evidence. The respondent's written submissions dated 30 March 2016 correctly point out that this contention does not challenge the basis of the respondent's claim for privilege. The respondent submits that there is no reason for me to depart from my preliminary view of the documents other than to assert that ss. 118 and 119 of the Evidence Act apply to all of the documents.