Nash v Glennies Creek Coal Management Pty Ltd (No 5) [2013] NSWIRComm 99

Nash v Glennies Creek Coal Management Pty Ltd (No 5) [2013] NSWIRComm 99

The court held that, with amendment, the question sought by the applicants is a question of law and, as such, must be referred to the Full Bench under s 5AE(1) Criminal Appeal Act 1912. Specifically, the question should be whether it was open to find, by reason of the letter of 12 July 2013, that there was disclosure of the substance of legal advice for the purposes of s 122 Evidence Act 1995 and the common law. The applications did not amount to abuse of process as the reformulated question is of a new character under the statute.

Parties
Applicant on the Motion: Director General, Department of Trade and Investment, Regional Infrastructure and Services; Prosecutor in the Substantive Proceedings: Jennifer Anne Nash; Respondent on the Motion/defendant in the Substantive Proceedings: Glennies Creek Coal Management Pty Ltd; Respondent on the Motion/defendant in the Substantive Proceedings: Integra Coal Operations Pty Ltd
Jurisdiction
Australia
Judgment Date
19 November 2013
Procedural Posture
Interlocutory Application / Application for Referral of an Additional Question of Law to the Full Bench
Outcome
Application granted for referral of the reformulated question of law to the Full Bench, costs reserved.
Legal Topics
Client Legal Privilege, Waiver of Legal Privilege, Reference of Questions of Law, Disclosure of Legal Advice
Industrial Relations Evidence Client Legal Privilege Waiver of Legal Privilege Reference of Questions of Law Disclosure of Legal Advice

Case Brief

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Parties

Director General, Department of Trade and Investment, Regional Infrastructure and Services

Applicant on the Motion

Jennifer Anne Nash

Prosecutor in the Substantive Proceedings

Glennies Creek Coal Management Pty Ltd

Respondent on the Motion/defendant in the Substantive Proceedings

Integra Coal Operations Pty Ltd

Respondent on the Motion/defendant in the Substantive Proceedings

Procedural Posture

Interlocutory Application / Application for Referral of an Additional Question of Law to the Full Bench

Legal Issues

  1. 1 Whether it was open to the court to find disclosure of the substance of legal advice for purposes of s 122 Evidence Act 1995 and the common law by reason of the letter of 12 July 2013
  2. 2 Whether the question posed is a question of law under s 5AE Criminal Appeal Act 1912
  3. 3 Whether the application amounts to an abuse of process

Ratio Decidendi

The court held that, with amendment, the question sought by the applicants is a question of law and, as such, must be referred to the Full Bench under s 5AE(1) Criminal Appeal Act 1912. Specifically, the question should be whether it was open to find, by reason of the letter of 12 July 2013, that there was disclosure of the substance of legal advice for the purposes of s 122 Evidence Act 1995 and the common law. The applications did not amount to abuse of process as the reformulated question is of a new character under the statute.

Court Disposition

Application granted for referral of the reformulated question of law to the Full Bench, costs reserved.

Orders

  • Annexure B to Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80 amended to add the question: 'Was it open to me to find that, by reason of the letter of 12 July 2013, there was disclosure of the substance of legal advice received by the prosecutor for the purposes of s 122 Evidence Act 1995...
  • Copy of this judgment to be provided to the Full Bench.