Shoal Bay Developments Pty Ltd v Port Stephens Council [2018] NSWSC 286

Supreme Court New South Wales

Medium Neutral Citation: Shoal Bay Developments Pty Ltd v Port Stephens Council [2018] NSWSC 286 Hearing dates: 27 February 2018 Date of orders: 27 February 2018 Decision date: 01 March 2018 Jurisdiction: Equity Before: Parker J Decision: Claim for privilege over documents produced on subpoena rejected, and leave to inspect the documents granted. Catchwords: EVIDENCE – Privileges – claim for legal professional privilege – claim for litigation privilege – preliminary proceedings – whether statutory provision applies to preliminary proceedings – common law definition of litigation privilege applies in preliminary proceedings

EVIDENCE – Privileges – Litigation privilege – whether expert report privileged – application of "dominant purpose" test – scope of report too wide – no direct evidence on instructions to expert – direct evidence apparently available – whether claim of privilege should be upheld as matter of inference when direct evidence available – privilege claim over report dismissed

EVIDENCE – Privileges – litigation privilege – where claimant asks court to inspect documents over which it claims privilege – whether appropriate for court to exercise power to inspect documents – where other party not in a position to inspect and make submissions on documents – risk of "gross unfairness" – whether inspection detracts from requirement that claimant prove privilege claim with admissible evidence – not appropriate for court to inspect documents where inspection detracts from requirement

CIVIL PROCEDURE – Subpoenas – documents produced on subpoena – legal professional privilege – litigation privilege – whether documents preceding issue of expert report privileged – whether inference that communications directly relate to proceedings available – whether documents advance case of claimant – whether documents produced for purpose related to expert report – insufficient evidence that documents advance case – insufficient evidence documents prepared for purpose related to expert report – inference communications directly relate to proceedings not available – privilege claim over documents dismissed Legislation Cited: Evidence Act 1995 (NSW), ss 119, 131A(1) Cases Cited: Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002 Australian Securities and Investments Commission v Southcorp Ltd (2003) 46 ACSR 438 Hancock v Rinehart (Privilege) [2016] NSWSC 12 Rinehart v Rinehart [2016] NSWCA 58 Category: Procedural and other rulings Parties: Shoal Bay Developments Pty Ltd (Plaintiff) Port Stephens Council (Defendant) Representation: Counsel: A Edington (Plaintiff) E Bathurst (Defendant)