Lawson v Minister for Environment and Water (No 2) [2022] NSWLEC 133

Lawson v Minister for Environment and Water (No 2) [2022] NSWLEC 133

The Martin report was apparently relevant but the material relied on by the Third Respondent, including section 1.1 of the report and the confidentiality agreement, did not establish that it was prepared for the dominant purpose of legal advice, so s 118 privilege was not made out and production was required subject to an access regime. The Lum report was apparently relevant, but its instructions expressly showed that it was prepared for the dominant purpose of enabling legal advice in native title proceedings. The subsequent filing and limited service of the 5 November 2013 report under Federal Court orders did not waive privilege at large, because the report was not tendered, read, or...

Jurisdiction
Australia
Judgment Date
11 November 2022
Procedural Posture
Class 3 Proceedings; Procedural Ruling on Subpoena and Costs / Third Respondent's Notice of Motion to Set Aside Parts of Subpoena Issued by the Applicant
Outcome
Third Respondent's Notice of Motion granted in part and dismissed in part; Martin report to be produced subject to access conditions; Lum report not required to be produced; no order as to costs.
Legal Topics
['subpoena to Produce' 'legal Professional Privilege' 'dominant Purpose Test' 'waiver of Privilege' 'inspection of Documents by Court' 'confidentiality Regime' 'anthropological Reports']
['civil Procedure' 'evidence' 'native Title' 'legal Professional Privilege' 'costs'] ['subpoena to Produce' 'legal Professional Privilege' 'dominant Purpose Test' 'waiver of Privilege' 'inspection of Documents by Court' 'confidentiality Regime' 'anthropological Reports']

Case Brief

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Procedural Posture

Class 3 Proceedings; Procedural Ruling on Subpoena and Costs / Third Respondent's Notice of Motion to Set Aside Parts of Subpoena Issued by the Applicant

Legal Issues

  1. 1 ['Whether the Martin report was protected from production by legal professional privilege under s 118 of the Evidence Act 1995 (NSW).' 'Whether the Lum report was protected from production by legal professional privilege under s 118 of the Evidence Act 1995 (NSW).' 'Whether any privilege in the Lum report was waived by its filing and limited service in Federal Court native title proceedings pursuant to orders made on 27 September and 30 October 2013.' 'Whether an access regime should apply to production of the Martin report.' "What costs order should be made on the Third Respondent's Notice of Motion."]

Ratio Decidendi

The Martin report was apparently relevant but the material relied on by the Third Respondent, including section 1.1 of the report and the confidentiality agreement, did not establish that it was prepared for the dominant purpose of legal advice, so s 118 privilege was not made out and production was required subject to an access regime. The Lum report was apparently relevant, but its instructions expressly showed that it was prepared for the dominant purpose of enabling legal advice in native title proceedings. The subsequent filing and limited service of the 5 November 2013 report under Federal Court orders did not waive privilege at large, because the report was not tendered, read, or...

Court Disposition

Third Respondent's Notice of Motion granted in part and dismissed in part; Martin report to be produced subject to access conditions; Lum report not required to be produced; no order as to costs.

Orders

  • ["The Third Respondent's Notice of Motion, to the extent that it relates to the report of Sarah Martin entitled Report for the Paakantji Claimants: Wentworth Native title claim NC95/10, Sarah Martin, for NSWALC, May 1999, is dismissed." "The Third Respondent's Notice of Motion, to the extent that it relates to the...