Raymond Boutros Azizi v Council of the City of Ryde [2020] NSWLEC 180

Raymond Boutros Azizi v Council of the City of Ryde [2020] NSWLEC 180

The Valuer-General was entitled to the protection of legal professional privilege because the Land Acquisition (Just Terms Compensation) Act 1991 did not expressly or by necessary implication abrogate that protection beyond the reports required by s 41(3). The disputed documents, in whole or in part, were confidential communications or documents made for the dominant purpose of obtaining or providing legal advice or professional legal services in relation to litigation, and production of the valuation reports under s 41(3) was not conduct inconsistent with maintaining confidentiality. The Council therefore failed to establish any implied waiver.

Jurisdiction
Australia
Judgment Date
18 December 2020
Procedural Posture
Class 3 Proceedings Concerning Compensation Under the Land Acquisition (just Terms Compensation) Act 1991 / Notice of Motion for Determination of Objection to Subpoena Production Based on Privilege
Outcome
Notice of Motion dismissed except for order 2; access to the privileged documents declined; Council ordered to pay the Valuer-General's costs of the Notice of Motion.
Legal Topics
['subpoena' 'client Legal Privilege' 'legal Professional Privilege' 'litigation Privilege' 'implied Waiver of Privilege' "valuer General's Determination of Compensation"]
['civil Procedure' 'evidence' 'land Acquisition Compensation'] ['subpoena' 'client Legal Privilege' 'legal Professional Privilege' 'litigation Privilege' 'implied Waiver of Privilege' "valuer General's Determination of Compensation"]

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Procedural Posture

Class 3 Proceedings Concerning Compensation Under the Land Acquisition (just Terms Compensation) Act 1991 / Notice of Motion for Determination of Objection to Subpoena Production Based on Privilege

Legal Issues

  1. 1 ['Whether the Valuer-General of New South Wales was entitled to claim legal professional privilege over documents sought by subpoena despite s 41(3) of the Land Acquisition (Just Terms Compensation) Act 1991.' 'Whether the documents in Categories A, B, C and D were protected by legal advice privilege or litigation privilege under ss 118 and 119 of the Evidence Act 1995.' 'Whether the Valuer-General impliedly waived privilege by relying on and providing reports of third party advisers in making the compensation determination.']

Ratio Decidendi

The Valuer-General was entitled to the protection of legal professional privilege because the Land Acquisition (Just Terms Compensation) Act 1991 did not expressly or by necessary implication abrogate that protection beyond the reports required by s 41(3). The disputed documents, in whole or in part, were confidential communications or documents made for the dominant purpose of obtaining or providing legal advice or professional legal services in relation to litigation, and production of the valuation reports under s 41(3) was not conduct inconsistent with maintaining confidentiality. The Council therefore failed to establish any implied waiver.

Court Disposition

Notice of Motion dismissed except for order 2; access to the privileged documents declined; Council ordered to pay the Valuer-General's costs of the Notice of Motion.

Orders

  • ['The Notice of Motion dated 28 August 2020 (with the exception of order 2) is dismissed.' "The Council is to pay the Valuer-General's costs of the Notice of Motion." 'The exhibits are returned.']