Ralph Lauren 57 Pty Ltd v Byron Shire Council; Ralph Lauren 57 Pty Ltd v Byron Shire Council [2013] NSWCA 307

Ralph Lauren 57 Pty Ltd v Byron Shire Council; Ralph Lauren 57 Pty Ltd v Byron Shire Council [2013] NSWCA 307

Submissions made by the respondent Council in the application for leave did not amount to a waiver of privilege. The Court held that waiver is not effected by submissions alone, particularly where they do not disclose the substance of legal advice but merely acknowledge its existence, and that there was no unfairness or inconsistency in maintaining privilege.

Jurisdiction
Australia
Judgment Date
09 September 2013
Procedural Posture
Interlocutory Applications / Application for Leave to Appeal From a Costs Decision; Motions for Access and Waiver of Privilege Considered Pre Appeal
Outcome
The Notices of Motion filed on 2 and 3 September 2013 are dismissed.
Legal Topics
['legal Professional Privilege' 'waiver of Privilege' 'interlocutory Applications' 'leave to Appeal' 'costs']
['evidence' 'civil Procedure'] ['legal Professional Privilege' 'waiver of Privilege' 'interlocutory Applications' 'leave to Appeal' 'costs']

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Procedural Posture

Interlocutory Applications / Application for Leave to Appeal From a Costs Decision; Motions for Access and Waiver of Privilege Considered Pre Appeal

Legal Issues

  1. 1 ['Whether submissions opposing application for leave are capable of waiving privilege' 'Whether submissions disclosed the substance of legal advice' 'Whether privileged documents should be produced in the appeal process' 'Whether the Council waived privilege in confidential legal advice']

Ratio Decidendi

Submissions made by the respondent Council in the application for leave did not amount to a waiver of privilege. The Court held that waiver is not effected by submissions alone, particularly where they do not disclose the substance of legal advice but merely acknowledge its existence, and that there was no unfairness or inconsistency in maintaining privilege.

Court Disposition

The Notices of Motion filed on 2 and 3 September 2013 are dismissed.

Orders

  • ['Council to provide applicants a masked transcript of the confidential session within 7 days.' 'Any application applicants wish to make under UCPR 51.51 is reserved to the hearing of the appeal on 21 October 2013.' 'Applicants to pay Council’s costs of the Notices of Motion filed on 2 and 3 September 2013.'...