Conias Hotels Pty Ltd & Anor v Brisbane City Council & Anor [2016] QPEC 59

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Conias Hotels Pty Ltd & Another v Brisbane City Council & another [2016] QPEC 59 PARTIES: CONIAS HOTELS PTY LTD (first applicant) and CITY COMMERCIAL HOLDINGS PTY LTD (second applicant) and BRISBANE CITY COUNCIL (first respondent) and CHIEF EXECUTIVE ADMINISTERING THE SUSTAINABLE PLANNING ACT 2009 (second respondent) ROSS NIELSON PROPERTIES PTY LTD CAN 010 754 873 (third respondent) FILE NO/S: 884 of 2016 DIVISION: Planning & Environment DELIVERED ON: 28 November 2016 – delivered Ex Tempore DELIVERED AT: Brisbane HEARING DATE: 28 November 2016 JUDGE: RS Jones DCJ COUNSEL: C L Hughes with A N Skoien for the first and second applicants J G Lyons for the respondent D Gore with M Williamson for the third respondent SOLICITORS: Thomson Geer for the first and second applicants Brisbane City Legal Practice for the respondent Connor O’Meara for the third respondent -- 1 of 7 -- 2 [1] HIS HONOUR: This morning, I heard from the parties in the matter of Conias Hotels Proprietary Limited and Brisbane City Council and others in respect of certain orders to be made. I reserved my decision concerning proposed orders 2.1 and 2.2 to consider them further. These are my reasons. The proceeding before me is one for directions concerned with the hearing of a pending application for costs on the part of the first and second applicants. They seek costs orders against the third respondent. The first respondent and the second respondent are not concerned with this proceeding or the final outcome as to costs. [2] The third respondent is a developer who intended to carry out a major residential high rise development at the edge of the Brisbane central business district fronting Roma Street. The first and second applicants are the owners of commercial premises whose access would have been affected had the third respondent’s development proceeded. [3] Pursuant to an application by the third respondent on 25 October 2016, I made a number of orders including (1) the applicants have leave pursuant to rule 15(1)(b) of the Planning and Environment Court Rules 2010 to discontinue the originating application on the limited ground that the development application the subject of the originating application has been withdrawn by the third respondent, (2) by 31 October 2016, the applicants file and serve their application with respect to costs together with any supporting affidavit material, (3) by 7 November 2016 the third respondent must file and serve any affidavit material in response to the material provided by the applicants pursuant to paragraph 2, (6) the application with respect to costs be reviewed on 28 November 2016 at 9.30 am. [4] Today, I was handed a draft set of six orders. Orders 1 and 3 to 6 are agreed to. The only orders in dispute, therefore, are orders 2.1 and 2.2. They provide as follows: (2) by 4 pm on 30 November 2016 the third respondent shall either: (2.1) deliver to the applicants copies of all documents directly relevant to the allegations in paragraph 12 of the affidavit of Peter Gordon Green sworn on 10 November 2016 that the third respondent had advice on its prospects in the proceeding, including any note by the servants, agents or legal representatives of the third respondent in respect of any oral advice to the third respondent on its prospects in the proceeding, or (2.2) file and serve affidavits by both a servant of the third respondent having knowledge of the documents in the possession, power and control of the third respondent and the solicitor at Conner O’Meara having carriage of the matter for the third respondent attesting to the fact that the documents of the sort described in paragraph 2.1 do not exist. [5] Paragraph 12 of Mr Green’s affidavit provides: On or about 3 October 2016, Mr Ross Neilson, a director of the Third Respondent, and Northbridge MJN Pty Ltd advised me that notwithstanding the advice that the Third Respondent had received, that its prospects in the proceeding were good: (a) given that the overtures to the First and Second Applicants to resolve the matter had been rejected; -- 2 of 7 -- 3 (b) the financial environment (which had changed substantially since the earlier part of the year) was such that Mr Neilson considered that it may not be possible for Northbridge MJN Pty Ltd to obtain finance to acquire lot 1 and carry out the development on terms suitable to Mr Neilson; (c) the market for multiple dwellings had substantially softened since earlier in the year; (d) satisfactory commercial terms could not be agreed with the Feros Parties for a further option extension; and Mr Neilson had made the decision that it would not be prudent or appropriate to proceed with the development application. [6] Mr Green’s affidavit went on to say in paragraphs 13 and 14: Thereafter, given that Northbridge MJN Pty Ltd no longer had control of Lot 1, Mr Neilson instructed me to take the necessary steps to withdraw the development application forthwith. It was not until Wednesday 5 October 2016 that I was able to communicate that instruction to Connor O’Meara, given that Michael Connor was absent from the office on a short period of annual leave and Truc Ly was on an extended period of annual leave during that period. [7] On 15 November 2016 solicitors for the First and Second Applicant wrote to the third respondent’s solicitors seeking a copy of the advice referred to by Mr Green in paragraph 12 of his affidavit. Reliance was placed on rule 222 of the Uniform Civil Procedure Rules. On 15 November 2016 the third respondent’s solicitor, Connor O’Meara Solicitors replied in the following terms: We refer to your request for our client to provide a copy of “the advice” that is referred to in paragraph 12 of Mr Green’s affidavit. We advise that any “advice” provided to Mr Green with respect to the prospects of the Third Respondent in the proceedings was provided orally. [8] It is quite likely that the advice given to Mr Green by Mr Neilson was given orally but that is not the end of the matter. There might well be written advice underlying the substance passed on to Mr Green by Mr Neilson. Rule 222 relevantly provides: A party may, by written notice, require another party in whose pleadings, particulars or affidavits mention is made of a document – (a) to produce the document for the inspection of the party making the requirement or the solicitor for the party; and (b) to permit copies of the document to be made. [9] In support of their application, the applicants relied on the majority decision of the Full Court of the Australian Federal Court in Bennett v The Chief Executive Officer Australian Customs Service [2004] FCAFC 237. The basis for the opposition to the relief sought was that because the advice given was oral, there was no duty or -- 3 of 7 -- 4 obligation to go any further. In that context, reliance was placed on the relatively recent decision of Justice Douglas in Balnaves v Smith and another [2008] QSC 215. While not expressly stated, it can be reasonably inferred that the purpose of Mr Green’s affidavit is to explain some of the background to and the timing of the notice of withdrawal, and also the reasons for the withdrawal. Also, while not expressly stated, it can be reasonably inferred that the reference to the advice about prospects of success would be relied upon in the costs proceedings to establish that the third respondent acted in a reasonable manner and had not acted in such an unreasonable way so as to attract adverse cost orders. That, of course, is not to suggest that they would be or might be the only grounds relied on by the third respondent to resist adverse costs orders. [10] In Bennett, the Full Court of the Federal Court of Australia was concerned with an appeal from the Federal Court, which in turn was concerned with the Freedom of Information proceedings, and in particular whether certain documents were exempt or whether that exemption had been waived. Reliance was placed on legal professional privilege and the issue was whether or not that privilege had been waived. Justice Gyles, with whom Justice Tamberlin agreed, with Justice Emmett dissenting, set out the material parts of the alleged waivers in paragraph 68 of his judgment. In paragraph 68, his Honour said: A decision as to whether privilege in a particular document is waived will normally be a question of fact. However, an error on a question of law may be bound up with the question of fact. That has occurred here. Each of the tribunal and the primary judge correctly identified the decision in Mann v Carnell as providing appropriate guidance as to the law to be applied. However, in my respectful opinion, the test has been misunderstood at least in part. The test looks to inconsistency between the disclosure that has been made by the client on the one hand and the purpose of confidentiality that underpins legal professional privilege on the other. It is not a matter of simply applying general notions of fairness as assessed by the individual judge. The authorities to which I have referred show that it is well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege. [11] In the reasoning of Justice Tamberlin, his Honour said in paragraph 6: In my view, it would be inconsistent and unfair, having disclosed and used the substance of the advice in this way to now seek to maintain privilege in respect of the relevant parts of that advice which pertain to the expressed conclusion. It may perhaps have been different if it had been simply asserted that the client has taken legal advice and that the position which was adopted having considered the advice, is that certain action will be taken or not taken. In those circumstances, the substance of the advice is not disclosed but merely the fact that there was some advice and that it was considered. However, once the conclusion in the advice is stated -- 4 of 7 -- 5 together with the effect of it, then, in my view, there is imputed waiver of the privilege. The whole point of an advice is the final conclusion. This is the situation in this case. [12] In paragraph 13, his Honour went on to say: Various expressions are used in the formulation of principles relating to waiver of legal professional privilege such as references to ‘the substance’, ‘effect’ or ‘content’ of the advice. The weight of the authorities, in my view, supports the conclusion that the disclosure of the conclusion reached in or course of action recommended by, an advice can amount to waiver of privilege in respect of the premises relating to the opinion which has been disclosed, notwithstanding that this reasoning is not disclosed. By way of illustration, if there is a disclosure that a client has been advised that interpretation “A” is preferable to interpretation “B” of a legislative provision, then even if there is no disclosure of the reasoning leading to that conclusion, the reasoning and content of the advice may be waived including the factual premises and circumstances leading to that conclusion. [13] Here there is little room for doubt that Mr Green has disclosed the substance or effect of the advice received. And as I have already said, it is not to the point or the end of the matter that the advice passed onto him by Mr Neilson was done so orally. The real question is whether there is some written advice in existence that had been provided to Mr Neilson which was then passed on orally to Mr Green. [14] In Balnaves case, Justice Douglas was concerned with an application for production of legal advice pursuant to rule 222. The basis for the application was an affidavit which relevantly provided: After delivery of the Defendant’s Defence on or about 30th June 2006, Counsel was engaged to provide certain advices and to draw and settle a Reply thereto. On instruction from the Plaintiff, after having the benefit of our and Counsel’s advice on the then prevailing information and in particular, having regard to the fact that the Plaintiff had pleaded guilty to a breach of s43 of the Transport Operations (Marine Safety) Act 1994, the reply was then filed on 15th September 2006 containing the admission in paragraph 3. [15] After identifying the issues involved, his Honour went on to say in respect of the operation of rule 222, in paragraphs 7, 8 and 10: Rule 222 and cognate rules in other jurisdictions such as New South Wales and England have been held to require “direct allusion to the document, an inferred or implied reference being insufficient.” The current English rules use similar language to r222 in allowing a party to inspect the document mentioned in an affidavit; see their Civil Procedure Rules 1998 Pt 31.14(1). That language has been treated as equivalent to the previous language which required both in England and here that “reference” be made to the document. In New South Wales the rule requires production of any document or -- 5 of 7 -- 6 thing referred to in an affidavit. In that jurisdiction Austin J recently said: ‘In my view the authorities strongly point to the conclusion that if an affidavit merely says that legal advice has been obtained without any direct allusion that the advice was in written form, the affidavit does not refer to a document for the purposes of r21.10(1)(a)… and legal advice… is not necessarily a document.’ The proper understanding of the language used in the affidavit does not, in my view, make mention of a document even if one may well infer that some of the advice received by the plaintiff from his solicitors and counsel may have been in writing. It merely said that the plaintiff gave instructions, ‘after having the benefit of our and Counsel’s advice’. From that one can conclude that the plaintiff received advice but it is not the case that mention has been made of a document. There has been no, ‘direct allusion’ to such a document. [16] His Honour then went on to consider the question of waiver of legal professional privilege and concluded, after referring to relevant principles and authorities, in paragraph 17 and 18: Applying those same considerations of whether there has been inconsistency between the conduct of the client and maintenance of the confidentiality effecting a waiver of the privilege, there seems to me to be no inconsistency between the conduct of the plaintiff, through his solicitor, in revealing that he had made an admission after receiving advice, which he wished to withdraw after reassessing the evidence available upon the receipt of the loss adjuster’s report, and his maintenance of the confidence attaching to the advice. In those circumstances it does not seem to me that the nature of the advice given earlier itself becomes an issue in the proceeding. The defendants will still be obliged to conduct their defence as they would have done in any event and the plaintiff has not put in issue the substance of any privileged communication referred to in para 14 of his solicitor’s affidavit, unlike for example, a case where a client sues a former lawyer for allegedly negligent advice. In those circumstances, there seems to me to be no inconsistency between the plaintiff’s conduct and maintenance of the confidentiality of the advice given him by his lawyers. Therefore, there has been no wayward privilege attaching to any legal advice he has received. [17] His Honour then went on to make final orders including: The reference in para 14 of the solicitor’s affidavit to the fact that the plaintiff had received advice was relevant to the explanation that an admission had been made after that advice was received and, in particular, having regard to the plaintiff’s guilty plea. That background was also relevant to the explanation that the admission -- 6 of 7 -- 7 was sought to be withdrawn on reconsideration of the evidence after the receipt of the loss adjuster’s report. The affidavit did not reveal the content of the advice or refer to it in such a way as to waive privilege in the advice or in any document that may have contained it. Nor did it make the content of the advice an issue in the litigation. [18] In my respectful opinion, the case before me can be distinguished from that in Balnaves. In this case, whether such advice was given and acted upon by the third respondent is, in all probability, going to be a not insignificant or inconsequential “issue” in the cost proceedings. In the context of the matter before me, I respectfully adopt the words used by Justices Tamberlin and Gyles in Bennett. Namely that: It would be inconsistent and unfair, having disclosed and used the substance of the advice… to now seek to maintain privilege in respect of the relevant parts of that advice which pertain to the express conclusion. [19] And: That for a client to deploy the substance of effect of legal advice for forensic or commercial purposes, is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege. [20] For the reasons given, the first and second applicants are entitled to relief of the type sought. That said, in my view, the relief sought goes too far in that it seeks copies of all documents directly relevant to the allegation in paragraph 12 of the affidavit. All documents relevant to the allegation, namely, the existence of advice concerning prospects of success goes too far in my view. It appears to me that the only document, assuming one exists and assuming it goes to the questions or prospects of the success, that would need to be made available, is that document or documents containing the advice in issue. The other comment that I would make and place on the record is that, as discussed during submissions, it is quite possible that in the event that any written document does exist and also contains information going to prospects of success, it may well go beyond that concerning prospects of success. In the event that that situation arose, it may be necessary for the document to be redacted. [21] I am inclined to leave that matter to the parties until such time as I am required to intervene. However, during submissions, neither I nor those representing the parties raised the issue of the width of the relief sought – which I have indicated I consider to be too wide in its current form. Accordingly, I will defer making final orders of the type contemplated in order 2 until the parties have had the opportunity to address me. I will publish my reasons in due course and if necessary hear further from the parties. -- 7 of 7 --