Shoal Bay Developments Pty Ltd v Port Stephens Council [2015] NSWLEC 1556

Shoal Bay Developments Pty Ltd v Port Stephens Council [2015] NSWLEC 1556

Documents related to monitoring and reporting of stormwater for compliance with court orders are not privileged because their dominant purpose was not anticipated litigation, but rather compliance with pre-existing obligations. Only certain expert reports (the 2007 peer review and GHD draft report) are privileged as they were prepared because of threats of litigation.

Parties
First Applicant: Shoal Bay Developments Pty Ltd; Second Applicant: Snoogal Pty Ltd; Respondent: Port Stephens Council
Jurisdiction
Australia
Judgment Date
06 February 2015
Procedural Posture
Class 1 / Access to Material Produced Pursuant to Notices to Produce; Privilege Claim Determination
Outcome
Access to part of the material granted; partial privilege claim upheld
Legal Topics
Legal Professional Privilege, Relevance of Documents, Notices to Produce, Modification of Development Consent, Stormwater Drainage Compliance
Planning Law Property Law Civil Procedure Legal Professional Privilege Relevance of Documents Notices to Produce Modification of Development Consent Stormwater Drainage Compliance

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Parties

Shoal Bay Developments Pty Ltd

First Applicant

Snoogal Pty Ltd

Second Applicant

Port Stephens Council

Respondent

Procedural Posture

Class 1 / Access to Material Produced Pursuant to Notices to Produce; Privilege Claim Determination

Legal Issues

  1. 1 Whether documents produced pursuant to notices to produce are relevant to the proceedings
  2. 2 Whether legal professional privilege applies to documents produced by the respondent

Ratio Decidendi

Documents related to monitoring and reporting of stormwater for compliance with court orders are not privileged because their dominant purpose was not anticipated litigation, but rather compliance with pre-existing obligations. Only certain expert reports (the 2007 peer review and GHD draft report) are privileged as they were prepared because of threats of litigation.

Court Disposition

Access to part of the material granted; partial privilege claim upheld

Orders

  • Order granting applicants access to inspect documents recording monitoring steps and data of stormwater drainage
  • Claim for privilege upheld only in relation to two 2007 reports (peer review, GHD draft report); privileged documents not to be inspected