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NSW Government Bulletin

30 April 2019

#Government

NSW Government Bulletin

UCPR amendment re objection to production on a ground of privilege

The Uniform Civil Procedure (Amendment No 91) Rule 2019 (NSW) (the Amendment) was approved by the Uniform Rules Committee on 15 April 2019, and took effect from 18 April 2019. The Amendment deals with document production in the event of an objection to production on a ground of privilege. 

The Amendment inserts the following after Rule 1.9 (4):

(4A) If a document is produced, and a person objects to the production of the document on the ground that the document is privileged document, access to the document must not be granted unless and until the objection is overruled.

(4B) The production of a document to the court under a claim for privilege does not constitute a waiver of privilege.

(4C) Subrules (4A) and (4B) extend to documents produced before the commencement of those subrules.

The Amendment was introduced in order to clarify procedure following Hancock v Rinehart (Privilege) [2016] NSWSC 12

In those proceedings (the interlocutory decision which was later subject of appeal), the defendant pressed the Court to inspect the disputed documents to determine the claim for privilege. This was in the absence of evidence from the defendant herself as to the facts on which the claim for privilege was founded.

In deciding the matter, his Honour Justine Brereton noted: 

  • any objection to production founded on privilege needs to be taken at the first stage, before the documents are produced to the Court, furthermore, because the privilege is one against production, it is inconsistent with maintaining the claim to produce the documents to the Court in support of the claim 
  • the preferable explanation of the Court’s power to inspect privileged documents is that it exists not to facilitate proof by a claimant of the facts required to sustain the claim, but to provide a means of enabling the claim to be scrutinised
  • a party is not entitled to insist on the Court inspecting the documents, it is a matter for the Court, where there is a good reason
  • on a claim for privilege, the purpose for which the document or communication was made is the key issue and that will involve ascertaining the purpose from a person with direct knowledge of that purpose
  • for the Court to look at the documents in support of a claim for privilege would be grossly unfair to the other party, as the other party seeking access is deprived of any opportunity to test the asserted purpose of the documents
  • presenting the Court with a bundle of documents and asking the Court to rule on a claim of privilege is not merely unsatisfactory but impermissible in principle, to voluntarily proffer the documents for inspection is inconsistent with maintaining the claim
  • although UCPR r1.9(5) provides that for the purposes of ruling on an objection to the production of a document, the person objecting may be compelled to produce the document, it does not deal with voluntary production of the document.

Authors: Christine Jones & Jeffery Shi

In the media

Law Council submission: The social and economic benefits of improving mental health
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'Results would be catastrophic': judge keeps man who threatened to bomb PM behind bars
A man who said he would bomb prime minister Malcolm Turnbull has become the first person in NSW to be kept behind bars under new terrorism legislation, after a court found he poses an "unacceptable risk" to the community (24 April 2019). More...

It is now law – landholders to be reimbursed during negotiations
Queensland landholders can be reimbursed for out of pocket expenses incurred in negotiating conduct and compensation agreements with a resource company - as of April 19 - regardless of whether or not an agreement is reached (19 April 2019). More...

Huawei’s new P30 smartphone camera sparks privacy concerns
Technology experts have so far been divided on the P30 Pro’s unmatched photography capabilities – including 5x optical zoom in addition to the digital zoom – with some praising it as a “breakthrough” while others warn it could present privacy and security dangers (17 April 2019). More...

Australia's privacy authorities to forge closer ties
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Privacy Authorities Australia statement in support of complaint and enforcement cooperation
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In practice and courts

Law Council of Australia: Fortnightly update
The LCA have today (12 April 2019) published their fortnightly newsletter. A full copy is available here.

Law Council of Australia: Submissions
17 April 2019—Law Council. Review of the Australian Human Rights Commission Regulations 1989 and the Disability Discrimination Regulations 19. 

Review of Model Defamation Provisions: Discussion paper
The purpose of defamation law is to balance protection from reputational damage with freedom of speech, and the release of information that's considered public interest. Each state and territory enacted legislation to implement the provisions to ensure greater national consistency.
The Review of Model Defamation Provisions Discussion Paper [PDF, 700kb] includes specific questions about the Model Defamation Provisions for your consideration; however, you are invited to comment on any other matters related to the provisions. Submissions close on 30 April 2019. The Model Defamation Provisions are available on the Australasian Parliamentary Counsel's Committee website here.

Practice Note SC CL 11 (Supreme Court Common Law Division – Bail)
Commences on Monday, 3 June. The following applies to bail applications filed prior to 3 June.
Applications filed by Private Practitioners and Legal Aid/ALS (where representation is confirmed).
Bail applications filed between now and 31 May will be listed in a call over on or before 3 June. No adjournments will be granted to a call over after 3 June (18 April 2019). More...

Amendment to the Uniform Civil Procedure Rules - Amendment to rule 1.9
Commences 18 April 2019. The amendment makes it clear that when an objection is made to the production of a document on the ground of privilege, access to the document must not be granted unless and until the objection is overruled, and that the production of a document to the court under a claim for privilege does not constitute a waiver of privilege. A copy of the amendment is attached here.

IPC NSW: Open Government information access initiatives
The NSW Information Commissioner, Information and Privacy Commission (IPC) CEO and Open Data Advocate, Ms Elizabeth Tydd, recently released an update on her work on open government initiatives under Australia’s second Open Government National Action Plan 2018-20 (OGNAP 2). For a full update on the work of the NSW Information Commissioner and Open Data Advocate in this area, please click here (23 April 2019). 

ICAC: Operation Skyline public inquiry directions hearing 29 April 2019
The NSW Independent Commission Against Corruption (ICAC) will hold a short directions hearing in relation to the further progress of the Operation Skyline investigation on Monday 29 April 2019 at 1:30 pm (26 April 2019). More...

NSW Justice: Review of Model Defamation Provisions
The Defamation Working Party is seeking feedback on defamation law in Australia, to assess how the legal principles apply in the digital age and identify areas for national reform. Submissions close on 30 April 2019. Review of Model Defamation Provisions.

ICAC Discussion Paper: Enhancing the democratic role of direct lobbying in NSW
The NSW ICAC is seeking public input as part of a new investigation it is conducting into the regulation of lobbying, access and influence in NSW (Operation Eclipse). The discussion paper is appended to an introductory paper, The regulation of lobbying access and influence in NSW: a chance to have your say, which also explains how to make a submission. The closing date for consultation is 24 May 2019. More...

Public Consultation: Review of Model Defamation Provisions
The Defamation Working Party is seeking feedback on defamation law in Australia, to assess how the legal principles apply in the digital age and identify areas for national reform. Submissions close on 30 April 2019. Review of Model Defamation Provisions.

NSW LRC: Open Justice Review - Court and tribunal information: access, disclosure and publication
The Attorney General has asked us to review the operation of suppression and non-publication orders and access to information in NSW courts and tribunals. See the Terms of reference. The deadline for preliminary submissions is 31 May 2019. Information about making a submission may be found on our website: Making a submission

Cases

Gatt v State of New South Wales [2019] NSWSC 451
ADMINISTRATIVE LAW – Judicial review – decision by Appeal Panel – workers compensation – grounds for medical appeal – whether Appeal Panel exceeded limitation imposed upon powers – whether committed error of reasoning – did Appeal Panel pose the wrong question – was there denial of procedural fairness – grounds not made out – plaintiff pay costs of defendant.

Richie Robles v Health Secretary in respect of Western Sydney Local Health District [2019] NSWIRComm 1028
UNFAIR DISMISSAL – jurisdictional objections – whether applicant resigned or was dismissed – evidence inconsistent with intention to resign – employee found to have been dismissed – whether application made out of time – 17 days out of time – matters to be considered in exercise of discretion – employer contribution to delay – sufficient reason to exercise discretion to accept application out of time PRACTICE AND PROCEDURE – non-disclosure orders – orders made by consent.

Paul v Forestry Corporation of NSW [2019] NSWCATAD 68
ADMINISTRATIVE LAW – government information – refusal to deal with application – whether dealing with the application would involve an unreasonable and substantial diversion of resources – whether multiple applications are related.

Transport for New South Wales v Waters (No 2) [2019] NSWCATAP 96
ADMINISTRATIVE LAW – personal information – whether appellant’s collection of respondent’s travel data via a Gold Opal Card was reasonably necessary for the appellant’s purpose.

Office of Environment and Heritage v Scenic NSW Pty Ltd [2019] NSWCATAP 87
PRACTICE AND PROCEDURE – joinder- where 3rd parties object to government agency disclosing information under Government Information (Public Access) Act 2009 – where 3rd parties not parties to first instance decision on jurisdiction – whether applicant for access appealed from first instance decision – whether 3rd parties should be joined to the appeal proceedings.

Thamotharampillai v National Accreditation Authority of Translators and Interpreters Ltd [2019] NSWCATAD 60
ANTI-DISCRIMINATION – Where complaint of victimisation declined by President of Anti-Discrimination Board as lacking in substance – Application for leave to proceed with complaint -- Whether fair or just to grant leave.

Cappello v Roads and Maritime Services & Anor. [2019] NSWSC 439
ADMINISTRATIVE LAW – legal effect of proposed acquisition notice – statutory authority of Roads and Maritime Service to acquire land under s 177 of Roads Act – source of RMS’s legal authority to acquire land.  STATUTORY INTERPRETATION – Roads Act 1993 – meaning of s 177 – construed to favour private property rights – statutory power only enlivened after identification of objective purpose of Act – purpose of the Act are to be found in all the provisions of the statute – s 64 marker of a statutory purpose of Roads Act – carry out functions of road authority with respect to proposed tollway – s 71 – road works widely defined – carry out roadwork – s 63 ministerial directions – all functions of road authority, to the fullest extent possible to become responsibility of RMS – proposed acquisition notice authorised by law.

Legislation

Regulations and other miscellaneous instruments
Electoral Funding (Adjustable Amounts) Amendment (Public Funding) Notice 2019 (2019-177) — published LW 26 April 2019
Electoral Funding (Adjustable Amounts) Amendment Notice 2019 (2019-170) — published LW 18 April 2019
Uniform Civil Procedure (Amendment No 91) Rule 2019 (2019-171) — published LW 18 April 2019

NSW Government Bulletin editor:
Christine Jones, Partner - Construction & Infrastructure (Dispute Resolution) 
T: +61 2 8083 0477 
E: christine.jones@holdingredlich.com

Other contacts:
Dispute Resolution, Inquiries and Administrative Law
Greg Wrobel, Partner 
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Bede Haines, Partner 
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Workplace Relations & Safety
Michael Selinger, Partner 
T: +61 2 8083 0430 
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Privacy & Data Protection
Lyn Nicholson, General Counsel 
T: +61 2 8083 0463 
E: lyn.nicholson@holdingredlich.com

Planning, Property & Environment
Robina Kidd, Partner 
T: +61 2 8083 0454 
E: robina.kidd@holdingredlich.com

Vanya Lozzi, Partner 
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E: vanya.lozzi@holdingredlich.com

Cameron Sheather, Partner 
T: +61 2 8083 0461 
E: cameron.sheather@holdingredlich.com

Breellen Warry, Partner 
T: +61 2 8083 0420 
E: breellen.warry@holdingredlich.com

Lindsay McGregor, Partner
T: +61 2 8083 0459 
E: Lindsay.McGregor@holdingredlich.com

Alexander McNutt, Special Counsel 
T: +61 2 8083 0495 
E: Alexander.McNutt@holdingredlich.com

Peter Holt, Special Counsel 
T: +61 2 8083 0421 
E: peter.holt@holdingredlich.com

Construction and Infrastructure (Projects and Procurement)
Scott Alden, Partner 
T: +61 2 8083 0419 
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Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

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