Alstom Power Ltd v Yokogawa Australia Pty Ltd (No 3)

In the case of Alstom Power Ltd v Yokogawa Australia Pty Ltd (No 3), the defendants sought orders for the production of documents for inspection. The central dispute was whether specific documents in the Kadlunga list were privileged under either legal professional privilege or without prejudice privilege, or both. The court also needed to determine if the descriptions of the documents were adequate and whether certain internal communications and post-settlement documents were protected by without prejudice privilege. Furthermore, the case addressed whether without prejudice privilege extended to protect negotiations in an earlier settlement between the plaintiff and another party from disclosure in the current action between the plaintiff and the defendants. Lastly, it examined whether without prejudice privilege continued to protect earlier negotiations that had been pleaded in the current action.

The court considered the defendants' arguments that the documents in question were privileged, either under legal professional privilege or without prejudice privilege. The reasoning involved evaluating the adequacy of the document descriptions and assessing the scope of without prejudice privilege. The court found that the majority of the documents claimed to be privileged were indeed privileged, particularly under without prejudice privilege. The descriptions of the documents were generally deemed adequate. The court held that internal communications should be protected by without prejudice privilege to safeguard public policy and common sense. Post-settlement documents were also found to be reasonably incidental to the negotiations for settlement and thus protected. The court concluded that without prejudice privilege extended to protect settlement negotiations from subsequent disputes involving third parties and that it did protect earlier negotiations that had been pleaded in the current action. Consequently, the court declined to make any orders for the production of the documents in the Kadlunga list, except for one instance.

In conclusion, the court ruled that the privilege claims were upheld for the majority of the documents. The descriptions provided were generally sufficient. The court determined that without prejudice privilege should protect internal communications and post-settlement documents, extending to earlier negotiations even when they had been pleaded in the current action. Therefore, the defendants' request for the production of the documents was denied, except for one document. The court's decision was based on a pragmatic approach, ensuring that the protection of privileged communications remained robust and practical in application.