Bailey v Director-General, Department of Natural Resources [2013] NSWSC 515

Bailey v Director-General, Department of Natural Resources [2013] NSWSC 515

The motion was dismissed because the challenged words in Mr Smith's affidavit were not obviously inadmissible and did not require determination under s 61 to ensure the speedy resolution of the real issues; an advance ruling under s 192A would provide no real benefit and should be declined for discretionary reasons because admissibility would depend on how the trial unfolded. The defendants had made clear that they were not relying on legal advice as a relevant fact in their case, so there was no compelling reason and it was not in the interests of justice to compel the requested admission under s 70. For the same reason, Mr Smith's affidavit did not change the defendants' position or...

Jurisdiction
Australia
Judgment Date
17 May 2013
Procedural Posture
Notice of Motion in Damages Proceedings Including Malicious Prosecution, Misfeasance in Public Office, Negligent Misstatement and Related Claims / Interlocutory Application to Reject Affidavit Evidence, Compel Admissions and Obtain Discovery of Legal Advice
Outcome
Notice of Motion filed 13 August 2012 dismissed; plaintiffs to pay defendants' costs of the motion except for costs associated with Mr Luxton's attendance, which the defendants must pay.
Legal Topics
['advance Ruling on Admissibility of Evidence' 'admissions of Fact' 'discovery of Legal Advice' 'waiver of Privilege' 'malicious Prosecution Proceedings' 'costs of Interlocutory Motion']
['civil Procedure' 'evidence' 'client Legal Privilege' 'costs'] ['advance Ruling on Admissibility of Evidence' 'admissions of Fact' 'discovery of Legal Advice' 'waiver of Privilege' 'malicious Prosecution Proceedings' 'costs of Interlocutory Motion']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Notice of Motion in Damages Proceedings Including Malicious Prosecution, Misfeasance in Public Office, Negligent Misstatement and Related Claims / Interlocutory Application to Reject Affidavit Evidence, Compel Admissions and Obtain Discovery of Legal Advice

Legal Issues

  1. 1 ["Whether selected words in paragraphs 13 and 14 of Robert Patrick Smith's affidavit should be rejected or ruled inadmissible under s 61 of the Civil Procedure Act 2005 or s 192A of the Evidence Act 1995." 'Whether the first and third defendants should be ordered under s 70(1)(c) of the Civil Procedure Act 2005 to admit that Robert Patrick Smith did not have regard to legal advice when deciding to prosecute the first plaintiff on 1 July 2002.' 'Whether the defendants should give discovery of all legal advice received by the prosecutor before commencement of the Land and Environment Court proceedings.' 'What costs orders should be made on the unsuccessful interlocutory motion and in relation to the attendance of Mr Luxton.']

Ratio Decidendi

The motion was dismissed because the challenged words in Mr Smith's affidavit were not obviously inadmissible and did not require determination under s 61 to ensure the speedy resolution of the real issues; an advance ruling under s 192A would provide no real benefit and should be declined for discretionary reasons because admissibility would depend on how the trial unfolded. The defendants had made clear that they were not relying on legal advice as a relevant fact in their case, so there was no compelling reason and it was not in the interests of justice to compel the requested admission under s 70. For the same reason, Mr Smith's affidavit did not change the defendants' position or...

Court Disposition

Notice of Motion filed 13 August 2012 dismissed; plaintiffs to pay defendants' costs of the motion except for costs associated with Mr Luxton's attendance, which the defendants must pay.

Orders

  • ['Notice of Motion filed 13 August 2012 be dismissed.' 'Defendants to pay the costs of the attendance of Mr Luxton on 17 August 2012.' "Plaintiffs to pay the defendants' costs of the Motion, excluding the costs the subject of Order 2."]