Ashfield Municipal Council v RTA [2004] NSWSC 917

Ashfield Municipal Council v RTA [2004] NSWSC 917

Privilege was waived in respect of paragraphs 1 and 15-20 of Mr Robertson SC's advice because the Council disclosed the substance and conclusion of that advice in correspondence with the RTA, and it would be inconsistent to maintain privilege while using the content to justify its position. Production of these parts of the advice also serves a legitimate forensic purpose.

Parties
Plaintiff: Ashfield Municipal Council; First Defendant: Roads and Traffic Authority of NSW; Second Defendant: Connell Wagner
Jurisdiction
Australia
Judgment Date
06 October 2004
Procedural Posture
Order for Discovery / Interlocutory Hearing on Privilege and Discovery
Outcome
Order for discovery of part of the privileged advice
Legal Topics
Discovery, Legal Professional Privilege, Waiver of Privilege, Section 138 Roads Act 1993
Civil Procedure Administrative Law Discovery Legal Professional Privilege Waiver of Privilege Section 138 Roads Act 1993

Case Brief

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Parties

Ashfield Municipal Council

Plaintiff

Roads and Traffic Authority of NSW

First Defendant

Connell Wagner

Second Defendant

Procedural Posture

Order for Discovery / Interlocutory Hearing on Privilege and Discovery

Legal Issues

  1. 1 Whether legal professional privilege over a legal opinion was waived by disclosure of its substance or conclusion in correspondence
  2. 2 Whether production of the legal opinion serves a legitimate forensic purpose

Ratio Decidendi

Privilege was waived in respect of paragraphs 1 and 15-20 of Mr Robertson SC's advice because the Council disclosed the substance and conclusion of that advice in correspondence with the RTA, and it would be inconsistent to maintain privilege while using the content to justify its position. Production of these parts of the advice also serves a legitimate forensic purpose.

Court Disposition

Order for discovery of part of the privileged advice

Orders

  • Order that the plaintiff produce for inspection of the first defendant a copy of the document headed "Ashfield Municipal Council re M4 East Project" consisting of a memorandum of advice dated 21 September 2004 signed by T F Robertson SC, being a copy in which the numbered paragraphs 2 to 14 inclusive are masked so...