Bardley-Smith & Ors v Penrith City Council & Anor [2009] NSWLEC 1338

Bardley-Smith & Ors v Penrith City Council & Anor [2009] NSWLEC 1338

Privilege claims upheld for communications that meet statutory definitions and agent status; waiver not made out. Leave to amend pleadings not granted due to futility and absent party. Discovery not ordered as sought documents not relevant to facts in issue and exceptional circumstances not shown.

Parties
First Applicant: Janis Margaret Bardley-Smith; Second Applicant: Anthony Munro Ferguson; Third Applicant: Ian Patrick Stubbs; First Respondent: Penrith City Council; Second Respondent: Administration and Marketing Solutions Pty Ltd
Jurisdiction
Australia
Judgment Date
12 October 2009
Procedural Posture
Judicial Review / Interlocutory Applications and Orders
Outcome
Privilege claims partly upheld; notice of motion dismissed; timetable amended.
Legal Topics
Client Legal Privilege, Leave to Amend Pleadings, Discovery of Documents, Waiver of Privilege, Development Consent
Planning Law Practice and Procedure Client Legal Privilege Leave to Amend Pleadings Discovery of Documents Waiver of Privilege Development Consent

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Parties

Janis Margaret Bardley-Smith

First Applicant

Anthony Munro Ferguson

Second Applicant

Ian Patrick Stubbs

Third Applicant

Penrith City Council

First Respondent

Administration and Marketing Solutions Pty Ltd

Second Respondent

Procedural Posture

Judicial Review / Interlocutory Applications and Orders

Legal Issues

  1. 1 Whether client legal privilege applies to certain subpoenaed material
  2. 2 Whether leave should be granted to amend pleadings where the relevant party is not joined
  3. 3 Whether order for discovery should be made

Ratio Decidendi

Privilege claims upheld for communications that meet statutory definitions and agent status; waiver not made out. Leave to amend pleadings not granted due to futility and absent party. Discovery not ordered as sought documents not relevant to facts in issue and exceptional circumstances not shown.

Court Disposition

Privilege claims partly upheld; notice of motion dismissed; timetable amended.

Orders

  • Privilege claim in relation to specified documents upheld
  • Access granted to certain other specified documents