Secretary, Department of Planning and Environment v Keelendi Farms Pty Ltd; Secretary, Department of Planning and Environment v TJ O’Brien Investments Pty Ltd; Secretary, Department of Planning and Environment v Edenmore Farms Pty Ltd; Secretary, Department of Planning and Environment v O’Brien [2023] NSWLEC 132

Secretary, Department of Planning and Environment v Keelendi Farms Pty Ltd; Secretary, Department of Planning and Environment v TJ O’Brien Investments Pty Ltd; Secretary, Department of Planning and Environment v Edenmore Farms Pty Ltd; Secretary, Department of Planning and Environment v O’Brien [2023] NSWLEC 132

The Court determined that privilege claims under ss 118 and 119 of the Evidence Act 1995 (NSW) are only upheld where communications involve lawyers acting in their professional capacity for the dominant purpose of providing legal advice or legal services, and declined privilege for communications solely between...

Source-derived case information.

Parties
Prosecutor: Secretary, Department of Planning and Environment; Defendant: Keelendi Farms Pty Ltd; Defendant: TJ O'Brien Investments Pty Ltd; Defendant: Edenmore Farm Pty Ltd; Defendant: Timothy Justin O'Brien
Jurisdiction
Australia
Judgment Date
30 November 2023
Procedural Posture
Class 5 Criminal Proceedings / Interlocutory Decision on Privilege and Subpoena (procedural Ruling)
Outcome
Defendants' notice of motion upheld in part, Court orders partial production of documents, no order as to costs.
Legal Topics
Legal Professional Privilege, Subpoena to Produce, Document Production, Privilege Claims, Litigation Privilege
Evidence Law Environmental Law Criminal Procedure Legal Professional Privilege Subpoena to Produce Document Production Privilege Claims Litigation Privilege

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 20 Party arguments 2
Sign in to unlock

Parties

Secretary, Department of Planning and Environment

Prosecutor

Keelendi Farms Pty Ltd

Defendant

TJ O'Brien Investments Pty Ltd

Defendant

Edenmore Farm Pty Ltd

Defendant

Timothy Justin O'Brien

Defendant

Procedural Posture

Class 5 Criminal Proceedings / Interlocutory Decision on Privilege and Subpoena (procedural Ruling)

Legal Issues

  1. 1 Whether the documents produced in response to a subpoena are protected by legal professional privilege under Evidence Act 1995 (NSW), ss 118 and 119
  2. 2 Interpretation of 'client' and 'lawyer' under s 117 of the Evidence Act 1995 (NSW)
  3. 3 Dominant purpose test for privilege claims

Ratio Decidendi

The Court determined that privilege claims under ss 118 and 119 of the Evidence Act 1995 (NSW) are only upheld where communications involve lawyers acting in their professional capacity for the dominant purpose of providing legal advice or legal services, and declined privilege for communications solely between departmental officers unless litigation privilege applies. The prosecutor's claim of privilege is upheld in part, and the defendants are entitled to production of documents where privilege was not established.

Court Disposition

Defendants' notice of motion upheld in part, Court orders partial production of documents, no order as to costs.

Orders

  • The defendants' notice of motion filed 5 May 2023 is upheld to the extent that documents numbered 6, 29, 30, 47, 48, 49, 52, 53, 54, 58, 64, 65, 69, 72, 73, 83, 92, 96, 97, 106, 107, 124, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 156, 157, 158, 159, 160, 176, 177, 178, 179, 180, 181, 182, 215 and...
  • No order as to costs.