GINA Rinehart’s legal battle with her children over a fortune was used against Port Stephens Council in court this week as it fought a developer over release of documents.
The council was ordered to produce 16 emails to developer David Vitnell after a NSW Supreme Court judge rejected its claim of legal or litigation privilege.
Mr Vitnell is seeking a court declaration that the council has not complied with a 2006 NSW Court of Appeal decision ordering it to complete millions of dollars in drainage works to prevent flooding of the Lagoons Estate at Nelson Bay.
The council claimed privilege over 16 emails linked to a drainage report commissioned in 2016, partly in response to a court-appointed expert’s review of drainage in the area.
The council argued it should not have to release emails relating to solicitor Anthony Pickup, who contacted expert Dr Daniel Martens in March, 2016 about the Lagoons Estate, and in August, 2016 commissioned a report only weeks after the court-appointed expert’s report was finalised.
In September Supreme Court Justice Michael Pembroke delivered a scathing assessment of the Lagoons case, including that the council “may well be primarily responsible” for delays.
He said the council was “not entirely satisfied” after the court-appointed expert’s report directly challenged the council’s case.
Mr Vitnell subpoenaed all documents relating to the Lagoons case held by Dr Martens, which the council rejected on the grounds of legal and litigation privilege. But evidence to back the privilege claim was “sparse”, Justice Thomas Parker said.
Some of the emails were between Mr Pickup, council solicitor Lisa Marshall and several council engineers.
The council asked that Justice Parker review the emails to decide whether they were privileged documents. But Justice Parker said a similar invitation to a judge from Gina Rinehart while hearing the case brought against her by some of her children over a mining fortune was rejected.
In that case a judge decided permitting a party to claim privilege “to fill in a gap in its case presented the risk of gross unfairness to the other party”.
Dr Martens’ report revealed that while drainage works completed by the council had reduced surface runoff to the lagoon that gave its name to the Lagoons Estate, “it has not completely impeded the flow of runoff” on to the estate.
The Lagoons case is set down for a full hearing in May.