Morrison v Bulga Coal Management Pty Ltd [2008] NSWIRComm 243

Morrison v Bulga Coal Management Pty Ltd [2008] NSWIRComm 243

The court held that both documents in dispute are protected by legal professional privilege as they were prepared for the dominant purpose of seeking legal advice, and the common law of privilege applies in pre-trial criminal proceedings before the Industrial Court; thus, the prosecutor is not required to produce the documents sought in the notice to produce.

Jurisdiction
Australia
Judgment Date
19 December 2008
Procedural Posture
Criminal / Pre Trial (interlocutory Application Regarding Notice to Produce and Legal Privilege)
Outcome
Application by defendants for production of the documents dismissed; privilege upheld.
Legal Topics
['legal Professional Privilege' 'notice to Produce' 'duty of Prosecutorial Disclosure' 'pre Trial Procedure' 'inspector’s Reports' 'relevance in Disclosure']
['occupational Health and Safety' 'criminal Law' 'industrial Law' 'evidence Law'] ['legal Professional Privilege' 'notice to Produce' 'duty of Prosecutorial Disclosure' 'pre Trial Procedure' 'inspector’s Reports' 'relevance in Disclosure']

Case Brief

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Procedural Posture

Criminal / Pre Trial (interlocutory Application Regarding Notice to Produce and Legal Privilege)

Legal Issues

  1. 1 ['Whether documents sought under notice to produce are subject to legal professional privilege' 'Whether the Evidence Act 1995 (NSW) or common law applies to claims of privilege in pre-trial criminal proceedings before the Industrial Court' "Whether the prosecutor's duty of disclosure overrides claims of legal privilege"]

Ratio Decidendi

The court held that both documents in dispute are protected by legal professional privilege as they were prepared for the dominant purpose of seeking legal advice, and the common law of privilege applies in pre-trial criminal proceedings before the Industrial Court; thus, the prosecutor is not required to produce the documents sought in the notice to produce.

Court Disposition

Application by defendants for production of the documents dismissed; privilege upheld.

Orders

  • ['The documents being Exhibits A and B to the affidavit of Mr Hammond, being documents to which legal professional privilege applies, need not be produced.' 'Question of costs reserved.' 'The matters are listed for plea/directions at 9.30 am on Monday 2 February 2009.']