Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2017] NSWLEC 88

Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2017] NSWLEC 88

The prosecutor's claim for legal professional privilege must be determined under the common law, not the Evidence Act 1995 (NSW), and all relevant categories of documents are privileged; privilege has not been waived except in relation to document 176 over which waiver was agreed. Access to privileged documents was denied and the defendants' motion was dismissed.

Parties
Prosecutor: Environment Protection Authority; Defendant: Grafil Pty Ltd; Defendant: Robert Mackenzie
Jurisdiction
Australia
Judgment Date
21 July 2017
Procedural Posture
Criminal Prosecution / Interlocutory Application Regarding Legal Professional Privilege Over Subpoenaed Documents
Outcome
Motion dismissed
Legal Topics
Legal Professional Privilege, Subpoena, Expert Evidence, Waiver of Privilege
Criminal Law Environmental Law Evidence Law Legal Professional Privilege Subpoena Expert Evidence Waiver of Privilege

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Parties

Environment Protection Authority

Prosecutor

Grafil Pty Ltd

Defendant

Robert Mackenzie

Defendant

Procedural Posture

Criminal Prosecution / Interlocutory Application Regarding Legal Professional Privilege Over Subpoenaed Documents

Legal Issues

  1. 1 Whether claim for legal professional privilege over documents produced under subpoena by expert witnesses should be determined under the Evidence Act 1995 (NSW) or common law
  2. 2 Whether the relevant documents are privileged at common law
  3. 3 Whether privilege had been waived over certain categories of documents

Ratio Decidendi

The prosecutor's claim for legal professional privilege must be determined under the common law, not the Evidence Act 1995 (NSW), and all relevant categories of documents are privileged; privilege has not been waived except in relation to document 176 over which waiver was agreed. Access to privileged documents was denied and the defendants' motion was dismissed.

Court Disposition

Motion dismissed

Orders

  • The motion is dismissed.