Wingecarribee Shire Council v O'Shanassy [2014] NSWLEC 1025

Procedural Posture

Class 5 Prosecution; Interlocutory Applications Concerning Claims of Privilege Over Documents Produced to the Court Under Subpoenas and Notices to Produce / Interlocutory Determination of Privilege Claims

Legal Issues

1. 1 ["Whether documents produced by Allman Johnston Architects and identified in the defendant's affidavit were privileged under s119 of the Evidence Act 1995." 'Whether copies attached to a privileged email attracted privilege although the original documents may not have been privileged.' "Whether the prosecutor's disputed documents were confidential communications or documents prepared for the dominant purpose of legal advice or professional legal services relating to proceedings." 'Whether any privilege had been lost under s122 of the Evidence Act 1995.' "Whether the prosecutor's duty of disclosure displaced or affected claims of client legal privilege."]

Ratio Decidendi

After inspecting the disputed documents, the Acting Registrar found the defendant's documents and attachments were prepared for the dominant purpose of the defendant being provided with professional legal services relating to anticipated proceedings, and found the remaining prosecutor's documents satisfied the requirements for client legal privilege and that privilege had not been lost. The prosecutor's duty of disclosure did not itself remove privilege and was for the prosecutor to apply.

Court Disposition

All claims for privilege are upheld

Orders

• ['For the reason stated above all claims for privilege are upheld.']