McMillan v Taylor [2023] NSWCA 157

McMillan v Taylor [2023] NSWCA 157

The documents sought by the applicants are confidential within the meaning of s 34(11) of the Land and Environment Court Act 1979 (NSW) because they were prepared for the dominant purpose of the mandatory conciliation conference; without respondents’ consent they are inadmissible, and access should not be given as it would be inconsistent with the Civil Procedure Act 2005 (NSW) case management principles. Production can also be refused on privilege grounds under UCPR r 1.9.

Parties
First Applicant: Julie-Anne McMillan; Second Applicant: Frances Ezra; Third Applicant: Jack Ezra; Fourth Applicant: Michael Hammond; Fifth Applicant: Lisa Stephens; First Respondent: Campbell Taylor; Second Respondent: Sarah Curtis; Third Respondent: Land and Environment Court of NSW; Fourth Respondent: Council of the Municipality of Woollahra
Jurisdiction
Australia
Judgment Date
06 July 2023
Procedural Posture
Court of Appeal Civil Application / Interlocutory Ruling on Access to Court File and Notice to Produce
Outcome
Application for access to file and production of documents refused; applicants' notice to produce set aside; costs in the cause.
Legal Topics
Practice and Procedure, Access to Court Documents, Privilege, Judicial Review
Environment and Planning Civil Procedure Practice and Procedure Access to Court Documents Privilege Judicial Review

Case Brief

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Parties

Julie-Anne McMillan

First Applicant

Frances Ezra

Second Applicant

Jack Ezra

Third Applicant

Michael Hammond

Fourth Applicant

Lisa Stephens

Fifth Applicant

Campbell Taylor

First Respondent

Sarah Curtis

Second Respondent

Land and Environment Court of NSW

Third Respondent

Council of the Municipality of Woollahra

Fourth Respondent

Procedural Posture

Court of Appeal Civil Application / Interlocutory Ruling on Access to Court File and Notice to Produce

Legal Issues

  1. 1 Whether applicants should be granted access to documents on Land and Environment Court file in aid of judicial review
  2. 2 Whether s 34(11) of Land and Environment Court Act 1979 (NSW) renders documents confidential and inadmissible
  3. 3 Whether the Uniform Civil Procedure Rules allow production/access where privilege is claimed

Ratio Decidendi

The documents sought by the applicants are confidential within the meaning of s 34(11) of the Land and Environment Court Act 1979 (NSW) because they were prepared for the dominant purpose of the mandatory conciliation conference; without respondents’ consent they are inadmissible, and access should not be given as it would be inconsistent with the Civil Procedure Act 2005 (NSW) case management principles. Production can also be refused on privilege grounds under UCPR r 1.9.

Court Disposition

Application for access to file and production of documents refused; applicants' notice to produce set aside; costs in the cause.

Orders

  • Set aside the applicants' notice to produce dated 30 March 2023.
  • Refuse the application under UCPR r 33.13 for access to the file.