2020-12-17 OM Agenda - Late Report - Kin Kin Quarry - Potential Legal Action

ORDINARY MEETING REPORT                                                          17 DECEMBER 2020


The purpose of this report is to provide Council with an update on recent legal advice about options
available to the Council to support our community in relation to the Kin Kin Quarry. This report also
proposes to authorise the CEO to commence legal proceedings on behalf of Council in the Planning
and Environment Court once the necessary evidence has been gathered to support those
proceedings.

2.    Key issues

Council has recently sought legal advice about legal options to deal with various impacts of the Kin
Kin Quarry on the local community. That legal advice has now been received.

For legal professional privilege reasons set out below, that legal advice is a confidential attachment
to this report.

 About legal professional privilege

 One of the challenges for a Council that prides itself on openness and transparency, is how to
 manage legal professional privilege in relation to legal advice it receives. In court actions, there
 is an obligation on each party to provide the other party with access to relevant documents as
 part of the court process (called discovery). There are certain exemptions to this rule including
 the exemption for legal professional privilege.

 Essentially, this means that advice and correspondence between the client and its legal advisor
 is protected from being provided to the other party on the basis of legal professional privilege.
 This enables clients to obtain “frank and fearless legal advice” on an issue without having to
 disclose that to the other party in the litigation. This could include advice from lawyers about
 legal tactics, prospects of success, evidence required etc.

 Legal professional privilege is lost if those documents are provided to a third party. This means
 that they would no longer be protected under legal professional privilege and would be required
 to be provided to the other party in the litigation. This is obviously of considerable disadvantage
 in any litigation as the other party would have a “playbook” on how the litigation is being
 managed and understand the strengths and weaknesses of the opposition case.

 It is for this reason that the legal advice Council has received in relation to the proposed action
 is not being made public. That legal advice will therefore retain legal professional privilege.


If Councillors wish to discuss this legal advice at the Council meeting, the meeting should be closed
to the public in accordance with Section 254J (3)(e) of the Local Government Regulation 2012 which
permits the meeting to be closed to the public for business relating to legal advice obtained by the
local government or legal proceedings involving the local government including, for example, legal
proceedings that may be taken by or against the local government.

Based on that legal advice, it is proposed to initiate proceedings in the Planning and Environment
Court but it should be noted, the Council will need to work with its legal advisers to establish the
necessary evidence required to successfully pursue such an action. Proceedings cannot commence
until that occurs and our legal advisers estimate that will take between 8 to 12 weeks to collate.
Proceedings can issue once that has been finalised. It is envisaged that we will also seek to work
with our community on this evidence gathering stage.




                                                                                        Page 2 of 10