Harden Shire Council v Curtis [2009] NSWCA 179

Harden Shire Council v Curtis [2009] NSWCA 179

The Colgan Report was prepared for the dominant purpose of use in anticipated litigation and is privileged under s 119 of the Evidence Act 1995. The Miller memorandum, to the extent it disclosed the Colgan Report’s contents, attracts derivative privilege and should be produced in redacted form to protect privileged material.

Parties
Applicant/cross Respondent: Harden Shire Council ACN 563 306 165; Respondent/cross Applicant: John Curtis
Jurisdiction
Australia
Judgment Date
21 July 2009
Procedural Posture
Appeal / Leave to Appeal and Cross Appeal, Substantive Appeal and Cross Appeal, Orders Made
Outcome
Appeal allowed in part; cross appeal dismissed
Legal Topics
Client Legal Privilege, Dominant Purpose, Derivative Privilege, Document Production
Evidence Law Client Legal Privilege Dominant Purpose Derivative Privilege Document Production

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Parties

Harden Shire Council ACN 563 306 165

Applicant/cross Respondent

John Curtis

Respondent/cross Applicant

Procedural Posture

Appeal / Leave to Appeal and Cross Appeal, Substantive Appeal and Cross Appeal, Orders Made

Legal Issues

  1. 1 Whether the Colgan Report was protected by client legal privilege under s 119 of the Evidence Act 1995
  2. 2 Whether the Miller memorandum reproduced privileged material and attracted derivative privilege
  3. 3 Whether disclosure of the Miller memorandum should be redacted

Ratio Decidendi

The Colgan Report was prepared for the dominant purpose of use in anticipated litigation and is privileged under s 119 of the Evidence Act 1995. The Miller memorandum, to the extent it disclosed the Colgan Report’s contents, attracts derivative privilege and should be produced in redacted form to protect privileged material.

Court Disposition

Appeal allowed in part; cross appeal dismissed

Orders

  • Leave to appeal granted
  • Notice of appeal to be filed and served within 10 days; otherwise dispense with further compliance with the rules