Aquasure Pty Ltd v Thiess Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2018 02258

AQUASURE PTY LIMITED (ACN 135 956 393)	Plaintiff
v
THIESS PTY LIMITED (ACN 010 221 486) & ORS (according to the attached Schedule)	Defendants

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JUDICIAL REGISTRAR:	Steffensen JR
WHERE HELD:	Melbourne
DATE OF HEARING:	9 July 2021
DATE OF RULING:	25 August 2021
CASE MAY BE CITED AS:	Aquasure Pty Ltd v Thiess Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 525 (First Revision 31 August 2021)

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PRACTICE AND PROCEDURE – Client legal privilege claims over reports commissioned following a flashover incident at a desalination plant Evidence Act 2008 (Vic), ss 118 and 119 – Whether privilege sufficiently proved – Whether privilege has been waived - Evidence Act 2008 (Vic), s 122(2) - Whether Court should exercise discretion to inspect documents the subject of the claim to privilege – Evidence Act 2008 (Vic), s 133.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Plaintiff excused from attending	Wotton & Kearney
For the First and Second Defendants	Mr S. Hay QC with Mr R. Minson of Counsel	Lander & Rogers
For the Third Defendant	Mr A. McClelland QC with Mr A. Christopherson of Counsel	Kennedys (Australasia) Pty Ltd

TABLE OF CONTENTS

A.. Introduction

B... The Tractebel Reports

C.. Are the March Report and the Undisclosed Report Privileged?

(i)          Principles
(ii)         The Parties’ Arguments
(iii)        Consideration
March Report
Undisclosed Report

D.. Has Privilege been Waived?

(i) Issue Waiver
(ii) Partial Disclosure Waiver

E... Conclusion

JUDICIAL REGISTRAR:

A. Introduction

The Thiess Degrémont Joint Venture (TDJV) is a joint venture by Thiess Pty Limited and Suez Water Pty Limited. TDJV was engaged by the plaintiff, Aquasure Pty Limited (Aquasure) to design and construct the Victorian desalination plant, including its electrical assets and the assets required to supply power to the desalination plant. The power supply system included a component known as a gas insulated switchgear or ‘GIS’. Siemens Limited (Siemens) was retained by TDJV to design, manufacture, supply and install the gas insulated switchgear.
On 11 December 2016, there was a “flashover” event in the gas insulated switchgear. This incident left the desalination plant without sufficient power to enable it to produce desalinated water in the period from December 2016 to April 2017.
Two proceedings have been commenced which concern the liability for loss suffered in connection with the flashover incident, being:
(i)a proceeding commenced by TDJV against Siemens in 2017 by which TDJV seeks contribution or indemnity from Siemens for any loss or damage TDJV is required to pay Aquasure. TDJV also claims its costs incurred in rectifying and remediating the flashover event (proceeding S CI 2017 05135); and
(ii)this proceeding commenced by Aquasure in 2018 against TDJV and Siemens, by which Aquasure claims loss arising from its failure to meet its obligations to supply desalinated water during the period that the desalination plant was without power (proceeding S ECI 2018 02258).
The two proceedings are being managed together, and by orders made by the Honourable Justice Riordan on 4 December 2020, evidence in each proceeding is to be evidence in the other.
Following the flashover incident, the French engineering consultancy firm, Tractebel Engineering SA (Tractebel), prepared three reports. This ruling concerns TDJV’s claim that redacted portions of two of those reports are privileged from production on the grounds of legal professional privilege under the Evidence Act 2008 (Vic) (Evidence Act). TDJV claims the redactions are privileged under both s 118 (legal advice privilege) and s 119 (litigation privilege) of the Evidence Act, and that this privilege has not been subsequently waived.
TDJV relies upon two affidavits of Mike Krsticevic filed on 21 June 2021 and 8 July 2021. Mr Krsticevic is the Senior Legal Counsel and Company Secretary of Suez Water Pty Limited, and is authorised by the first and second defendants to file the affidavit on behalf of TDJV. Mr Krsticevic’s second affidavit largely addresses the third defendant’s notice to produce filed on 25 June 2021. TDJV also relies upon an affidavit of Gitanjali Bajaj filed on 24 August 2020. Ms Bajaj is a partner of DLA Piper Australia, the solicitors acting for TDJV at that time.
Siemens challenges TDJV’s privilege claim and says that in any event, any privilege has since been waived, relying upon s 122(2) of the Evidence Act (waiver by way of acts inconsistent with the maintenance of privilege) and s 126 of the Evidence Act (waiver of privilege in documents which are reasonably necessary to enable a proper understanding of a document adduced). Thus, Siemens seeks production of the documents without redaction. Siemens relies upon the affidavit of Jane Kupsch filed on 5 July 2021, a partner of Kennedys, Siemens’ solicitors. In addition, Siemens refers to the content of two witness statements, being that of Terrance Ian Westwood filed on 15 March 2021 by Siemens, and of Jacob John Taylor filed by TDJV on 27 May 2021 in proceeding S CI 2017 05135.
Aquasure does not challenge TDJV’s claim of privilege and was excused from attending the hearing.

B. The Tractebel Reports

It is convenient to set out a short chronology of the commissioning of the Tractebel reports by reference to TDJV’s evidence as set out in Mr Krsticevic’s first affidavit.
TDJV’s evidence is that shortly after the flashover incident, it engaged MinterEllison to assess TDJV’s existing and future liability.[1] On 19 January 2017, MinterEllison sent a letter to Tractebel asking it to provide a preliminary report and then a further report detailing Tractebel’s:
(a)opinion on the appropriateness of the overall power supply system design;
(b)opinion on the root-cause of the failure which occurred at the GIS and the reasons why;
(c)assessment of the actual status/condition of each piece of equipment associated with the GIS and which parts (if any) are re-usable;
(d)risk assessment of the GIS and associated cable/equipment to determine the likelihood of any restart resulting in a repeated flashover event;
(e)recommendations with respect to any corrective or improvement measures that should be implemented to avoid future damage to the GIS or any related equipment or assets; and
(f)list of additional studies, investigations, numerical simulations that may be necessary (if any) to secure the opinion and recommendations.[2]
[1]Mr Krsticevic’s first affidavit, [12].
[2]Exhibit MK-1 to Mr Krsticevic’s first affidavit, MinterEllison letter of instruction at [3.3].
In response to this request, Tractebel produced a report dated 20 March 2021, which was emailed to MinterEllison on 23 March 2017. The email is copied to Mr Krsticevic, Mr Taylor and five persons employed by Suez.[3] The covering email states it is Tractebel’s “detailed analysis related to GIS failure [that] occurred on December 11^th, 2016”.[4] This report has been referred to by the parties as ‘Document 4’. I will refer to it as the ‘March Report’. The March Report contained 9 sections.
[3]David Lamy (CEO Water, Suez), Tom Burns (General Manager, Desing & Build, Suez), Emmanuel Bontemps (Group Chief Procurement Officer, Treatment Infrastructure, Suez International SAS), Jean-Edouard Constant (Group Construction Director, Treatment Infrastructure, Suez International SAS), Ronald Sabbag (Director Design & Build Business at Degremont, Suez International SAS); the roles at the relevant time of personnel were provided by the parties in an email to the Court on 12 July 2021.
[4]Exhibit MK-2 to Mr Krsticevic’s first affidavit, 19.
By email from MinterEllison dated 31 March 2017, MinterEllison requested that the March Report be re-issued as two separate reports, with the March Report addressing “the root-cause analysis and additional investigations” as contained in sections 5 and 9 (being the answers to questions (b) and (f) asked by MinterEllison), and a second report addressing “other ancillary matters (eg improvements, recommendations, risk assessment etc)” as contained in sections 1 to 4 and 6 to 8 (being the answers to questions (a), (c), (d) and (e)).[5]
[5]Ibid 18-19.
Mr Krsticevic states at [20] of his first affidavit that this was requested “so that the Root Cause sections could be provided to Delmech for the purposes of assisting their investigation, as they were the technical lead on the root cause analysis and sought all relevant information for their consideration in the process of independent assessment”.
In response to this request, by email to MinterEllison dated 5 April 2017, Tractebel provided two documents:[6]
(i)One being a report stated to be the “Final Report – Root-Cause Analysis…concerning the root-cause analysis related to GIS failure occurred on December 11^th, 2016”. The parties refer to this document as ‘Document B’. I will refer to it as the ‘Disclosed Report’; and
(ii)The other being a report stated to be the “Final Report – Ancillary Matters…concerning different ancillary matters as power system supply improvements and recommendations and risk assessment”. The parties refer to this as ‘Document 5’. I will refer to it as the ‘Undisclosed Report’.
[6]Ibid 18.
On the day the Disclosed and Undisclosed Reports were received, Mr Krsticevic provided the Disclosed Report to Mr Taylor and requested that he provide it to David Frost of Delmech to assist him with the preparation of his root-cause analysis report, subject to receipt of confirmation from two employees of Theiss.[7] Delmech later received the Disclosed Report.[8] The evidence does not disclose when this occurred or whether this was done on a confidential basis.
[7]Exhibit MK-5 to Mr Krsticevic’s second affidavit.
[8]Mr Krsticevic’s first affidavit, [22].
In Mr Krsticevic’s second affidavit, he addresses the distribution of the Tractebel reports. He deposes to steps taken to ensure that the March Report and the Undisclosed Report remained confidential and only circulated to a group of internal stakeholders. He states that he is not aware of the reports having been provided to anyone outside of these internal stakeholders and outside counsel.[9]
[9]Mr Krsticevic’s second affidavit, [10]–[15].
By letter dated 21 June 2017, TDJV provided the Disclosed Report to Aquasure, as an attachment to a report prepared by Delmech entitled the ‘GIS Failure Mechanism Report’.[10]
[10]Mr Krsticevic’s first affidavit, [22].
TDJV has produced to Siemens and Aquasure redacted versions of the March Report and the Undisclosed Report, and maintains a claim of privilege in respect of those parts which are redacted. The redactions in the March Report are said to be those sections which have been reproduced in the Undisclosed Report, but are not contained in the Disclosed Report. The Undisclosed Report is redacted other than in respect of those sections which are also contained in the Disclosed Report.

C. Are the March Report and the Undisclosed Report Privileged?

Principles

The parties are in agreement as to the relevant principles regarding the determination of whether a communication is privileged. Siemens referred to Mortgage Results Pty Ltd v Millsave Holdings Pty Ltd [2017] VSC 704, and in particular at [9], where Associate Justice Derham summarises the relevant principles as set out by Justice Elliott in IOOF Holdings Ltd v Maurice Blackburn Pty Ltd.[11] I adopt those principles and will highlight certain parts as I see them relevant to this case.
[11][2016] VSC 311, [47].
In order for a confidential communication to be privileged from production under ss 118 or 119 of the Evidence Act, it must have been made for the dominant purpose of a lawyer providing legal advice to the client (s 118) or for the dominant purpose of the client being provided with legal professional services in relation to anticipated litigation (s 119).
The purpose for which a document is brought into existence is a question of fact that must be determined objectively, having regard to the evidence, the nature of the documents and the parties’ submissions.[12]
[12]AWB Ltd v Cole (2006) 152 FCR 382, 412 [110] (‘AWB v Cole’), citing Commission of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 225 ALR 266, 278-82 [30] (Kenny J) (‘Pratt Holdings’).
The “dominant purpose” is the prevailing, paramount or most influential purpose which led to the creation of the document.[13] Simply to show that one purpose for creation of the document was to obtain legal advice is not good enough.[14] If there is evidence of more than one purpose, and it cannot be said that one purpose prevails over the other, then the communication will not be privileged. Clear paramountcy is the test.[15] If the decision to bring the document into existence would have been made irrespective of any intention to obtain legal advice, the purpose of obtaining legal advice cannot be the dominant purpose for the making of the document.[16]
[13]AWB Ltd v Cole (No 5) (2006) 155 FCR 30, 45 [44(5)] (‘AWB (No 5)’); AWB v Cole (n 12) 411 [105]–[106]; Pratt Holdings (n 12) 278-82 [30] (Kenny J).
[14]Barnes v Commissioner of Taxation (Cth) (2007) 242 ALR 601, 605 [18] (‘Barnes’).
[15]AWB v Cole (n 12) 411 [106].
[16]Pratt Holdings (n 12) 280 [30(8)(b)].
To determine whether a communication attracts privilege, the starting point is the intended use (or uses) of that document which accounted for it being brought into existence.[17] The nature and content of evidence which will be required to establish purpose will be depend on the circumstances of individual cases. However, the authorities have addressed the evidence that might be required to establish dominant purpose as follows:
[17]AWB v Cole (n 12) 411 [107] (Young J).
(i)evidence must be admissible direct evidence, and not hearsay;[18]
[18]Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 513-4 (Brennan CJ) (‘AFP v Propend’).
(ii)evidence must be focussed and specific[19]. Verbal formulae, bare conclusory or general assertions as to purpose of creation are not sufficient;^[20]
[19]Barnes (n 14) 605 [18].
[20]Kennedy v Wallace (2004) 142 FCR 185 (‘Kennedy v Wallace’) per Black CJ and Emmett J, cited with approval in Barnes (n 14) at 605 [18]; AWB (No 5) (n 13) 45 [44(3)] (Young J).
(iii)evidence as to the purposes of the person who made the communication, or authored the document, or procured its creation.[21] Although, such evidence is not necessarily conclusive;[22]
[21]AWB (No 5) (n 13) 44 [44(1)].
[22]Ibid 44-5 [44(2)].
(iv)where the document is immediately communicated by its author to several other persons, including the legal adviser, it is important to ask what was the dominant purpose of that email communication;[23]
[23]AWB v Cole (n 12) 411 [107].
(v)evidence from other persons involved in the hierarchy of decision making or consultation which led to the creation of the document, and their purposes may be necessary;[24].
[24]AWB (No 5) (n 13) 45 [44(2)]; AWB v Cole (n 12) 412 [110] and authorities cited therein.
(vi)evidence as to the following may be of assistance:
i.the circumstances and context in which the relevant communication took place;[25]
ii.the topics to which the instructions or advice were directed; [26] and
iii.the thought process behind or the nature and purpose of advice being sought in respect of each particular document;[27] and
(vii)evidence as to the general nature of the documents supported by argument or submissions may also be sufficient.[28]
[25]AWB (No 5) (n 13) 44 [44(1)], 46 [44(3)] (Young J).
[26]Ibid 46 [44(3)] (Young J).
[27]Kennedy v Wallace (n 20) per Black CJ and Emmett J, cited with approval in Barnes (n 14) at 605 [18]; AWB (No 5) (n 13) 45 [44(3)] (Young J).
[28]AWB (No 5) (n 13) 44 [44(1)].
The Court has a discretion under s 133 of the Evidence Act to inspect the documents to test a claim for privilege. Inspection should not be used to fill in gaps in the evidence, but provides a means of enabling a claim to be scrutinised and tested.[29]
[29]Hancock v Rinehart [2016] NSWSC 12, [31]; Mortgage Results Pty Ltd v Millsave Holdings Pty Ltd [2017] VSC 704, [74].

The Parties’ Arguments

TDJV claims that the March Report was privileged at the time of its creation, attracting both advice privilege and litigation privilege under ss 118 and 119 of the Evidence Act respectively. That is, TDJV claims that the March Report was a confidential communication prepared for the dominant purpose of MinterEllison providing legal advice to TDJV, and thus is not to be adduced under s 118. Further, TDJV claims that the March Report was prepared for the dominant purpose of it being provided with professional legal services relating to a proceeding or anticipated proceeding to which TDJV may be a party, and is thus is not to be adduced under s 119.
TDJV says that it has met the evidential burden as to the dominant purpose of the creation of the Tractebel reports. TDJV says that by Mr Krsticevic’s first affidavit, it has adduced evidence from the person who engaged MinterEllison, who in turn engaged Tractebel. TDJV submits that on a fair reading of that affidavit, there is evidence as to the legal advice sought from MinterEllison as to the flashover event and the power supply system, and that the Tractebel reports were a necessary pre-requisite to the advice being sought, such that the March Report and the Undisclosed Report were commissioned for the dominant purpose of seeking legal advice and in anticipation of litigation. TDJV further submits that if there is any doubt, I ought to exercise my discretion to inspect the documents in their unredacted form in order to test the privilege claim.
Siemens contends that Mr Krsticevic’s affidavit has failed to give direct evidence of the relevant facts from which the Court could determine that privilege has been properly claimed. Siemens also points to the failure of TDJV to adduce evidence from the other people involved in the engagement of Tractebel, such as Mr Taylor, TDJV’s manager of the investigation into the flashover incident and GIS repairs and the lawyers from MinterEllison who authored the instruction letter to Tractebel and the subsequent bifurcation request. Siemens argues that having regard to the inadequacies in TDJV’s evidence, it would not be appropriate for me to exercise my discretion to inspect the redacted portions of the reports.
Further, Siemens points to the manner in which Siemens itself was engaged by MinterEllison in connection with the flashover incident, which it says demonstrates that the dominant purpose of the Tractebel reports was to investigate the cause of the flashover and effect necessary repairs. Siemens also points to there being no evidence of any other expert having been briefed by TDJV on the topics covered by the Tractebel reports. Siemens argues that the commercial necessity of enquiring into the matters the subject of the Tractebel reports indicates that the dominant purpose of their commission was commercial.

Consideration

I am satisfied on the evidence of Mr Krsticevic that the March Report and the Undisclosed Report are confidential communications.[30] The distribution of the reports within Theiss and Suez in the controlled and confidential manner described by Mr Krsticevic has not affected the confidential nature of the reports. The key question is whether or not the dominant purpose of these communications was to obtain legal advice or for the purpose of anticipated litigation.
[30]See Mr Kristicevic’s first affidavit, [11], [19], [23]; and Mr Kristicevic’s second affidavit, [10]–[15].

March Report

I am satisfied that TDJV’s evidence establishes that a purpose of obtaining the March Report was for legal advice.
The March Report was also commissioned for purposes broader than obtaining legal advice or for the purposes of anticipated litigation. This is apparent from the timing of the report in the aftermath of the flashover event, where priorities were not just to address liability for the flashover event, but also the commercial imperative to repair the damage and re-energise the desalination plant. The email from Phil Cormick (TDJV) to Peter Wood of MinterEllison dated 20 December 2016 provides some context to the commercial imperatives of the parties at that time being to rectify the damage and replace damaged parts prior to the determination of who is responsible.[31] This email was copied to Mr Krsticevic and Mr Taylor.
[31]Exhibit JEK-20 to Ms Kupsch’s affidavit.
Having regard to the multiple purposes of the March Report, the question is therefore whether the dominant purpose for the commission of the March Report was to obtain legal advice or for the purposes of anticipated litigation.
Despite the inadequacies of TDJV’s evidence which I will come to address, for the reasons that follow, I am satisfied that the dominant purpose for which the March Report was brought into existence was for the purpose of seeking legal advice and as such is privileged from disclosure pursuant to s 118 of the Evidence Act, subject to consideration of waiver.
Mr Krsticevic, who is the senior legal counsel and company secretary of Suez, has given evidence that following the incident, it was part of his role to instruct TDJV’s external counsel to provide advice on the flashover incident and the power supply system. He states that TDJV engaged MinterEllison for this purpose, and that they gave advice in light of the opinions of experts engaged to assist with factual investigations, including Tractebel.[32]
[32]Mr Krsticevic’s first affidavit, [7]–[12].
Mr Krsticevic elaborates that “[s]ome of these experts were engaged to establish the factual basis necessary to understand TDJV’s existing legal liability, while others (in particular Tractebel) were engaged as part of TDJV’s comprehensive assessment of any future legal liability associated with the Power Supply System and the risk of another power outage (whether or not caused by the same root cause as the Incident) given the long-term design and operational life of the VDP”.[33]
[33]Ibid [12].
Mr Krsticevic gives some further context to the engagement of Tractebel, who he says was engaged because of its specific expertise in the power supply system and the gas insulated switchgear,[34] and that the intention was for Tractebel to investigate all aspects of the power supply system while they were already travelling to Australia from France to investigate the flashover incident.[35]
[34]Ibid [13].
[35]Ibid [15].
Mr Krsticevic gives colour as to the purpose of each of the questions asked of Tractebel at [15] to [17] of his first affidavit where he states that:
(i)the purpose of issues (b) (root cause of the failure and reasons why) and (f) (additional studies that may be necessary to secure Tractebel’s opinion) was investigation of the root cause of the flashover event “so as to allow assessment of TDJV’s legal liability for the same”.[36] This part of the March Report is what forms the Disclosed Report which has been provided to Aquasure and in respect of which no privilege is claimed;
(ii)the purpose of issues (a) (appropriateness of the overall power supply system design) and (e) (recommendations with respect to any corrective or improvement measures that should be implemented to avoid future damage) “was to assess any future risk of another power outage and to consider options to mitigate that risk. These opinions were obtained to allow assessment and mitigation of TDJV’s potential legal liability in relation to the Power Supply System”[37]. This part of the March Report has been redacted;
(iii)the purpose of issue (c) (assessment of the actual status/condition of each piece of equipment and which parts are re-usable) “was to assess the condition of the GIS and related cable infrastructure, as well as the status of rectification works following the Incident, in order to allow assessment of any future legal risk associated with re-energisation of the VDP”.[38] This part of the March Report has been redacted;
(iv)the purpose of issue (d) (risk assessment of the GIS to determine the likelihood of a restart causing another flashover) was “a related legal risk assessment prior to the re-energisation of the [desalination plant] following completion of the rectification works”. [39] This part of the March Report has been redacted.
[36]Ibid [15], [18a].
[37]Ibid [16].
[38]Ibid [17].
[39]Ibid [17].
This evidence as to the thought process regarding the questions asked of Tractebel and the nature of the legal advice sought by TDJV, support that the dominant purpose of the March Report was for seeking that advice.
The communications from Tractebel and the March Report state the following as to its purpose:
(i)the “Purpose” section of the March Report states that Tractebel was engaged to “investigate the incident and to provide TDJV with an expert opinion and to assist in understanding the cause of the failure and damage at the VDP GIS, and potential matters of future risk within the system as currently designed and constructed”. It notes it has already transmitted its preliminary report on 19 January 2017. That is, the same day as the MinterEllison letter of instruction requesting the preliminary report. The March Report, which is headed “Final Report”, states its purpose is to address the six topics listed at [10] above.
(ii)Tractebel’s covering email states: “Following Tractebel’s investigations and visits at site of Victorian Desalination Plant, we are pleased to issue the Final Report No P.010494.RP-02 rev.A, concerning our detailed analysis related to GIS failure occurred on December 11^th, 2016”.[40]
[40]Exhibit MK-2 to Mr Krsticevic’s first affidavit.
These statements of purpose are also consistent with the report containing a technical opinion required so that MinterEllison could provide advice in relation to the GIS failure and the apportionment of liability in respect of it.
The March Report was circulated to a group of 16 persons from Thiess, Suez and Suez International SAS. Mr Krsticevic states that this was to seek their comments for the purpose of finalising the reports.[41] Siemens submitted that the commercial and operational roles of these persons demonstrates that the purpose of the March Report was not for seeking legal advice or in anticipation of litigation. I am not prepared to draw such an inference. It is common place for feedback to be sought from internal stakeholders in respect of expert opinions sought for privileged purposes in the manner that Mr Krsticevic’s evidence addresses. The fact that the cover of the March Report states that is “Final”, does not detract from this. This may simply be drawing a distinction between the preliminary report which had already been provided by Tractebel, rather than indicating that the content of the report would not be subject to change following receipt of comments from TDJV.
[41]Mr Krsticevic’s second affidavit, [10]-[11].
TDJV argued that great attention should be paid to paragraph 3.5 of MinterEllison’s engagement letter, which states that the “dominant purpose” for the reports commissioned from Tractebel was “so as to enable us to provide legal advice to TDJV concerning liability under its various contracts concerning the Desalination Plant”. This statement, whilst relevant, only goes so far to determine the dominant purpose of the creation of the Tractebel reports, which must be determined objectively. The contemporaneous statements of MinterEllison regarding the purpose of the engagement are not determinative.[42]
[42]AWB v Cole (n 12) 412 [110].
Siemens argued that Mr Krsticevic failed to give direct evidence of the relevant facts from which the Court could determine that privilege has been properly claimed. Siemens focussed upon the failure of Mr Krsticevic to describe the events using first person narrative to describe what he did and did not do, particularly with respect to the engagement of MinterEllison. Rather Mr Krsticevic states that it was “TDJV” that engaged MinterEllison. By reference to the failure to use first person narrative, and Mr Krsticevic’s acknowledgement that this was done “with others”, Siemens sought to infer that this was perhaps done by someone else. TDJV is a joint venture between two entities, and Mr Krsticevic is employed by one of the joint venturers. In this context, describing the MinterEllison retainer as being by “TDJV” should not be viewed with as much suspicion as Siemens contends. I agree with TDJV’s submission that this language reflects the legal structure of TDJV.
I agree with Siemens’ submission that Mr Krsticevic’s affidavit is pitched at a level of generality which is not as helpful as one might expect. No information is given as to the timing of Tractebel’s engagement, or any other purposes for which the report was commissioned. It is apparent that Tractebel’s engagement certainly pre-dated the MinterEllison engagement letter, by reference to the fact that the preliminary report bears the same date as the engagement letter.[43] I do not consider these deficiencies are fatal to TDJV. Mr Krsticevic’s evidence is direct. I am satisfied that he had contemporaneous involvement in the commissioning of the March Report by MinterEllison on behalf of TDJV, and indeed he received it directly from Tractebel.[44] I do not consider that his evidence lacks the necessary focus and specificity to establish that the purpose for which the Tractebel reports were brought into existence, was for obtaining legal advice.
[43]The March Report states that “the Preliminary Report was transmitted by Tractebel on 19 January 2017”. The MinterEllison engagement letter is also dated 19 January 2017.
[44]See the email from Tractebel to MinterEllison dated 23 March 2017 at Exhibit MK-2 to Mr Krsticevic’s first affidavit, 19.
Siemens criticises TDJV’s failure to adduce evidence from the lawyers at MinterEllison, given their role in Tractebel’s engagement. I agree that it would have been helpful for Mr Wood of MinterEllison to give evidence as to the engagement of Tractebel and the purposes of doing so. At the least, an explanation on oath by TDJV as to the reason no evidence has been adduced from him would have been of assistance. However, having regard to TDJV’s change of solicitors, and the direct evidence from Mr Krsticevic as to the engagement of MinterEllison and Tractebel, I am not prepared to draw any adverse inference from the absence of evidence from MinterEllison.
No evidence is adduced from the operational persons within TDJV as to the commissioning of the report or its purposes. Given the technical nature of the March Report, evidence from persons involved in the hierarchy of decision making or consultation which led to the creation of the March Report may be necessary.[45] However, the witness statement of Mr Taylor does provide some information. Mr Taylor, who worked at the desalination plant for TDJV, states that he “managed the investigation into the Flashover (Investigation) and the repairs to the GIS for the damage that was caused by the Flashover”.[46] Mr Taylor says that he procured, engaged, and managed subcontractors and contractors working on the investigation and repairs following the flashover, and approved payment of their invoices.[47]
[45]AWB v Cole (n 12) 412 [110].
[46]Mr Taylor’s witness statement, [8].
[47]Ibid [10].
With respect to Tractebel, Mr Taylor says it was engaged “to assist the TDJV with the Investigation and Repairs” and provide “technical peer review of the work method statements for the Investigation and Repairs”[48]. Mr Taylor was provided a copy of the March Report at the time of its communication to MinterEllison.[49] These statements as to the role of Tractebel, and Mr Taylor’s receipt of the March Report are consistent with the commercial purposes of Tractebel’s engagement and reports.
[48]Ibid [191].
[49]Email from Tractebel to MinterEllison dated 23 March 2017, Exhibit MK-2 to Mr Krsticevic’s first affidavit, 19.
The experts retained by TDJV in relation to the flashover incident and the fees in respect of which form part of TDJV’s loss claim against Siemens, are listed in Schedule A to TDJV’s statement of claim in proceeding S CI 2017 05135. This list includes a range of engineering consultants, including Tractebel. By reference to this list and the accompanying evidence, Siemens points to there being no evidence of any other expert having been briefed by TDJV on the topics covered by the Tractebel reports. Siemens argues that this demonstrates the dominant purpose of the March Report was for commercial and engineering purposes. Siemens says that this is further demonstrated by the voluntary disclosure of the Disclosed Report to Delmech and then Aquasure.
If the decision to bring the March Report into existence would have been made irrespective of any intention to obtain legal advice, the purpose of obtaining legal advice cannot be the dominant purpose for the making of the document.[50] I consider this issue to be finely balanced having regard to the dual purposes of the March Report.
[50]Pratt Holdings (n 12) 280 [30(8)(b)] (Kenny J).
It is clear that the purpose of the Disclosed Report was for it to be provided to Delmech Engineering to assist with its investigations and supervision of the repair work, and ultimately for the purpose of provision to Aquasure.[51] However, in my view, the existence of the Disclosed Report and its provision to Delmech and Aquasure, and TDJV’s later decision to claim Tractebel’s fees, do not establish that the March Report would have been commissioned irrespective of any privileged purpose. Given that the test is anchored to the purpose for which a document was brought into existence,[52] I do not consider that the subsequent provision of part of the March Report, that is, the Disclosed Report, to Aquasure to be of the level of significance in determining dominant purpose for which Siemens asserts. The use to which the March Report was put after it was brought into existence is immaterial.[53] Similarly, TDJV’s subsequent claim against Siemens for Tractebel’s fees does not demonstrate that the March Report was not commissioned in January 2017 for the dominant purpose of seeking legal advice.
[51]Mr Krsticevic’s first affidavit, [20], [22].
[52]AFP v Propend (n 18) 508 (Brennan CJ).
[53]Ibid.
The evidence available to the Court on this application includes a list of third party engineers engaged by TDJV in respect of the flashover and the GIS. It is not possible for a conclusion to be drawn as to whether any of these reports cover the same subject matter as the March Report. In any event, even if Siemens’ contention is factually correct, I do not consider it to demonstrate, without more, that the March Report would have been brought into existence absent any privileged purposes.
On balance, I consider the evidence before me does not establish that the March Report would have been brought into existence regardless of TDJV’s want for legal advice on the questions to which the report is addressed.
Siemens argued that the character of the questions, particularly those that were ultimately addressed in the Undisclosed Report, demonstrate that the dominant purpose of these questions was for TDJV’s business purposes of safely restarting the electrical supply at the desalination plant, and could not be matters upon which legal advice could be rationally given. I agree that these questions appear on their face to be more operational in nature. However, I accept the evidence of Mr Krsticevic outlined at [37] above regarding the purpose of the questions, and the submissions from TDJV’s counsel as to the legal advice to which they were directed.
In addition to retaining Tractebel and Delmech, TDJV also retained Siemens in the aftermath of the flashover incident to investigate, prepare reports, perform engineering work and supply replacement parts. TDJV directly requested this from Siemens, without any involvement of MinterEllison. That same work was subsequently commissioned by MinterEillison, “in the context of legal advice” and MinterEllison issued an engagement letter dated 21 December 2016 which states that the Siemens engagement was for the dominant purpose of legal advice.[54] Siemens argued that this sequence of events demonstrates that MinterEllison was a ‘go between’ with a view to cloaking Siemens work in privilege, in circumstances where its engagement was plainly for commercial purposes and not for the dominant purpose of legal advice. Siemens seeks the Court to draw a similar conclusion in respect of MinterEllison’s role in engaging Tractebel.
[54]Exhibit JEK-10 to Ms Kupsch’s affidavit. Siemens did not accept MinterEllison’s terms of engagement and the parties agreed upon Siemens’ terms which acknowledged that their work was for the purpose of the procurement of legal advice, see Exhibit JEK-11 to Ms Kupsch’s affidavit.
Whilst the Siemens engagement does provide context to the work which was being undertaken following the flashover event and the role of MinterEllison more generally, it does not shed a bright light on the dominant purpose for which the March Report, commissioned one month later, from a different party in respect of different topics, came into existence. An expert report may attract privilege whether or not it has been commissioned by a lawyer. Whilst MinterEllison’s involvement in Tractebel’s engagement is relevant, it has not been determinative of my conclusion that the March Report came into existence for the dominant purpose of seeking legal advice.
I am satisfied that the March Report was brought into existence for the dominant purpose of seeking legal advice and is, subject to the consideration of waiver, privileged from disclosure under s 118 of the Evidence Act. The dominant purpose is demonstrated by the evidence of Mr Krsticevic, who was personally involved in the engagement of the MinterEillison, which in turn engaged Tractebel to prepare a report which was a necessary precursor to the advice sought. Given the serious nature of the flashover incident, its potential impact upon the supply of desalinated water, and the short and long-term contractual obligations of TDJV, it is apparent that legal advice regarding TDJV’s liability and the liability of others involved not only in respect of the flashover event, but the impact on the power supply system more generally was required and sought by TDJV.
I am satisfied that in order to provide such advice, MinterEllison would require technical assistance from an expert such as Tractebel in the power supply system and gas insulated switch. Mr Krsticevic has given evidence which addresses the circumstances and context in which Tractebel was engaged and the March Report was commissioned, the nature of the legal advice for which the Tractebel report was required, and the thought process behind the six questions which Tractebel was asked to address. To the extent that the Tractebel questions are focussed upon risk assessment relevant to advice on future liability arising from the power supply system and GIS more generally, I am satisfied as to TDJV’s explanations for the purpose for which these questions were asked, and the need to take full advantage of Tractebel’s presence on site at the desalination plant. It is clear that Tractebel’s engagement was also for commercial and business purposes. However, having regard to the above matters, I am satisfied that the dominant purpose of the communicated March Report (rather than say the on-site support given by Tractebel) was for seeking legal advice.

I do not consider it necessary to exercise my discretion under s 133 of the Evidence Act to inspect the March Report for the purpose of reaching that conclusion.
The flashover was a significant event warranting investigation, rectification, and consideration of TDJV’s liability. I accept TDJV’s submission that the nature of the flashover was “inherently such as to make litigation of some kind or kinds likely according to the ordinary course of human affairs”,[55] such that litigation privilege might attract if the March Report were prepared for the dominant purpose of that litigation. I am satisfied that insofar as the March Report answers Tractebel questions (b) and (f) that it also is privileged from production pursuant to s 119 of the Evidence Act as a communication for the dominant purpose of providing TDJV with legal services which relate to anticipated litigation.
[55]Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332, 341 [22] (Batt JA, Charles JA and Callaway JA agreeing) (‘Mitsubishi Electric’).
I have some reservations as to whether the dominant purpose of Tractebel questions (a), (c), (d) and (e), was for providing legal services which relate to anticipated litigation. On TDJV’s own case in opposition to the asserted waiver of privilege, it is said that the answers to these questions are a separate subject matter from the cause of the flashover incident. Further, these questions relate to future matters and assessment of future legal risk, as opposed to existing risk in respect of which litigation might be anticipated. Thus it is difficult to identify the anticipated litigation in respect of which these questions have been asked. However, given my finding in relation to s 118, it is not necessary for me to consider this further.

Undisclosed Report

The Undisclosed Report was brought into existence following MinterEllison’s request to bifurcate the March Report into the Disclosed and Undisclosed Reports. Mr Krsticevic explains that MinterEllison requested this bifurcation “so that the Root Cause sections could be provided to Delmech for the purposes of assisting their investigation, as they were the technical lead on the root cause analysis and sought all relevant information for their consideration in the process of independent assessment”.[56]
[56]Mr Krsticevic’s first affidavit, [20].
The determination to bifurcate was made some two months after MinterEllison’s letter of engagement, and at a time when TDJV and its legal advisors had the benefit of having read and received the March Report. The dominant purpose of commissioning the Disclosed Report was to provide it to Delmech. There is no evidence to suggest that the provision of the report to Delmech was done in such a manner so as to protect any privilege. The Disclosed Report was provided to Aquasure shortly thereafter, suggesting that the decision to waive any privilege in the subject matter of the Disclosed Report may have been made at the time that it was commissioned by MinterEllison.
I do not consider that the non-privileged purpose of the Disclosed Report detracts from my conclusion that the dominant purpose of bringing the redacted portions of the March Report was for seeking legal advice. Nor does the subsequent commission of the Undisclosed Report change this purpose. There is no evidence to suggest that in the intervening period between receipt of the March Report and the creation of the Undisclosed Report that TDJV no longer sought Tractebel’s answers to these questions for the purpose of seeking legal advice.
I am therefore of the view that the Undisclosed Report is a confidential communication and was brought into existence for the dominant purpose of seeking legal advice, and as such is privileged from disclosure pursuant to s 118 of the Evidence Act.
Again, given my conclusion with respect to s 118 it is unnecessary for me to consider whether the Undisclosed Report is privileged from disclosure under s 119. I note however that my doubts as to whether s 119 protects the production of the redacted parts of the March Report are heightened in respect of the Undisclosed Report. The later commission of the Undisclosed Report, coupled with the determination to waive any privilege in the Disclosed Report as being the only part which relates to the cause of the flashover event, makes it even more difficult to find that there is a real prospect of litigation for which the Undisclosed Report has been prepared. [57]
[57]Mitsubishi Electric (n 55) 341 [18]-[19] (Batt JA, with whom Charles and Callaway JJA agreed).

D. Has Privilege been Waived?

Siemens bears the onus with respect to waiver.[58] It argues that if the reports were privileged, any privilege has been waived under s 122(2) of the Evidence Act by reason of TDJV acting inconsistently with the maintenance of privilege in the redacted portions of the documents by:
(i)TDJV putting in issue the character or contents of the communication in pursuing a right or claim, leading to waiver under s 122(2) of the Evidence Act, by reason of TDJV’s claim for damages including fees paid to Tractebel; and/or
(ii)disclosing the Disclosed Report to Delmech and Aquasure, such that privilege is waived in the redacted portions of the March Report and the Undisclosed Report. In this regard Siemens argues that associated material waiver applies on the basis that the whole of the material relevant to the same subject matter ought to be produced.
[58]Hodgson v Amcor Ltd (No 4) (2011) 32 VR 568, [14]-[15] (Vickery J).
In addition, Siemens argues that material should be adduced under s 126 of the Evidence Act on the grounds that the redacted portions are reasonably necessary to enable a proper understanding of the portions of the documents which have been disclosed.
TDJV denies that it has acted inconsistently with the maintenance of privilege. With respect to issue waiver, TDJV’s primary argument was that any consideration of issue waiver should be made at trial. With respect to the assertion of partial disclosure waiver, TDJV argued that there is a valid distinction between the two subject matters, namely “the root cause” addressed in the Disclosed Report and “the other ancillary matters” the subject of the Undisclosed Report. That distinction being valid, TDJV says that there can be no inconsistency in choosing to split the March Report into two in order to disclose only “the root cause” sections of the March Report.

Issue Waiver

In Commissioner of Taxation v Rio Tinto Ltd,[59] the Full Court observed at [54] that the essence of issue waiver is that:
waiver comes about because the privilege holder’s conduct is inconsistent with the continued confidentiality of the communication because he or she has put in issue the character or contents of the communication in pursuing a right or claim, or has created a situation where another party must reasonably do so by way of a defence.[60] .
[59](2006) 151 FCR 341.
[60]Ibid 357 [54] (Kenny, Stone and Edmonds JJ).
The Court of Appeal in Viterra Malt Pty Ltd v Cargill Australia Ltd[61] adopted the Full Court’s approach, including the Full Court’s reliance on the statement by Allsop J (as he then was) in DSE (Holdings) Pty Limited v Intertan Inc[62] that issue waiver occurs when:
the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication.[63]
[61](2018) 58 VR 333.
[62](2003) 127 FCR 499.
[63]Viterra Malt Pty Ltd v Cargill Australia Ltd (2018) 58 VR 333, 345-6 [50] (Whelan, Kyrou and McLeish JJA), quoting Allsop J in DSE (Holdings) Pty Limited v Intertan Inc (2003) 127 FCR 499, 519 [58] (emphasis in original).
Siemens argues that TDJV has waived any privilege in the March Report and the Undisclosed Report by reason of its damages claim, which includes fees paid to Tractebel. Siemens points to:
(i)TDJV’s particulars of its damages claim against Siemens as set out in Schedule A to the Amended Statement of Claim filed on 26 March 2021 in proceeding S CI 2017 05135 (ASOC), which includes an entry at item 29 “Tractebel Engineering – Engineering consultancy for GIS repairs - $149,529.84”;
(ii)the Witness Statement of Mr Taylor which:
i.states at [14] that in relation to the items in Schedule A he is “able to describe the works or costs that comprise each item and the corresponding vendor, say how each item (or what portion of each item) relates to the Investigation and/or the Repairs, and confirm that the TDJV paid the amount”.[64];
ii.states that Tractebel assisted TDJV with the Investigation and Repairs and provided technical peer review of the work in the period from January to April 2017;[65] and
iii.exhibits copies of the two Tractebel invoices and outlines the Australian dollar equivalent of the amounts paid to Tractebel in respect of the invoices;[66] and
(iii)Tractebel’s two invoices to TDJV for the work it completed.[67] One is dated 3 April 2017 and is described as “Invoice No.1 - intermediary invoice” and totals €52,584. The second is dated 8 June 2017 and is described as “Invoice No.2” and totals €48,720. Both invoices state that they are in respect of the Victorian Desalination Plant Project and include “Our REF P.010494”, being a reference number included on all of the Tractebel reports. The invoices do not contain more detailed descriptions of the work done by Tractebel, rather, they list the hours spent by personnel.
[64]‘Investigation’ is defined to mean the investigation into the flashover event, and ‘Repairs’ are defined as the repairs to the GIS for damage caused by the flashover: Mr Taylor’s witness statement, [8].
[65]Mr Taylor’s witness statement, [191]–[192].
[66]Ibid [193]–[194].
[67]Exhibit JEK-22 to Ms Kupsch’s affidavit.
Siemens says that it can be inferred from the invoices that all of the fees paid to Tractebel, not just those associated with the Disclosed Report and the unredacted parts, have been claimed by TDJV. TDJV did not adduce any evidence refuting this inference, and it did not argue that such an inference should be rejected. Rather, counsel accepted that as TDJV’s claim is presently formulated, it sought damages for the fees paid to Tractebel. It was argued that there is still time for TDJV to decide not to press that aspect of the claim, and that waiver should be addressed at trial, at which time TDJV will decide “whether or not we do seek to recover that amount”.[68]
[68]Transcript of Proceedings (9 July 2021), 96 line 24-5, see 97 line 8-9.
Having regard to TDJV’s position, for the purpose of this application, I infer that the Tractebel fees referred to in Schedule A to the ASOC and the Tractebel invoices relate to the parts of the Tractebel reports over which TDJV claims privilege. This is consistent with the two Tractebel invoices. The first Tractebel invoice was issued on 3 April 2017, that is, 3 days after the MinterEllison bifurcation instruction, and 2 days before the two separate reports were produced. It is described as an “intermediary invoice” and does not identify the time spent on particular questions answered in the March Report. Given the time at which this invoice was issued, it seems implausible that it relates to only those parts of the March Report which TDJV subsequently chose to disclose to Aquasure. The second Tractebel invoice is dated 8 June 2017 and again the narration does not make reference to time spent on particular questions or one or other of the Disclosed or Undisclosed reports. There is no evidence of MinterEllison asking for separate invoices for the two reports.
For the purpose of determining issue waiver, it is necessary to review the relationship between the communications over which privilege has been claimed and the issue propounded by TDJV. Here, the issue is whether Siemens is liable for the damages claimed in respect of amounts paid to Tractebel. This will require a causation analysis in respect of the work done by Tractebel for which loss is claimed. The question is whether by claiming the fees paid to Tractebel, has TDJV had put in issue the work undertaken by Tractebel? The answer to that question must be yes. The further question is whether, by this, is it inconsistent to maintain privilege in respect of parts of the written reports prepared by Tractebel? Will it put Siemens at a forensic disadvantage for TDJV to proceed with its claim for Tractebel’s fees without disclosure of the full reports? In my opinion, the answer is also yes. It is difficult to conceive of how the questions of causation with respect to Tractebel’s fees may be determined without reference to the work which Tractebel has undertaken. That work includes the March Report and the Undisclosed Report. By seeking payment of Tractebel’s fees, TDJV has squarely put Tractebel’s work and whether it relates to the Investigation and Repairs into issue. This is an act which is directly inconsistent with seeking to maintain privilege over Tractebel’s written work product. Siemens would be put at unfair forensic disadvantage if it were not permitted to scrutinise and test this aspect of TDJV’s claim against it.
TDJV argued that Siemens has not established that in order to make good its damages claim, TDJV would need to tender the redacted portions of the reports. It was argued that any waiver that might result from the damages claim is to be considered at trial, and that to consider waiver based upon the pleadings and the witness statement filed but not yet adopted by the deponent at trial would be premature. No authority was cited for these arguments. Pleadings are closed. Whilst Mr Taylor’s witness statement has not yet been adopted, it is signed by him and includes a statement that this is the evidence he wishes to give at trial. TDJV has not adduced evidence which calls into question Tractebel’s engagement and payment of its invoices as referred to by Mr Taylor in his witness statement.
TDJV’s argument is unattractive. In essence, TDJV is inviting the Court to ignore its pleaded damages claim on the basis that in the future it might decide not press this aspect of its claim, and thus avoid Tractebel’s work being examined. From a case management perspective alone, this is unappealing. TDJV must decide well in advance of trial the case it will seek to pursue, and Siemens is entitled to test and scrutinise that case. TDJV has decided to claim Tractebel’s fees and address this claim in its filed witness statement. In my view, Siemens is entitled to examine and assess that claim, including by reference to Tractebel’s work product. This is particularly so where in this application TDJV claims that the portion of the work done by Tractebel is unrelated to the flashover event.
I am therefore of the view that TDJV has acted inconsistently with maintaining privilege over that work product and has waived any privilege in respect of the Tractebel reports the subject of its damages claim, including the redacted portions of the March Report, and thereby the redacted portion of the Undisclosed Report.

Partial Disclosure Waiver

It is unnecessary for me to consider waiver by reason of partial disclosure. However, given TDJV has intimated that it may amend its claim so as to remove the claim for payments made to Tractebel, I will briefly consider this issue.
In order to waive privilege, there must be some inconsistency in the conduct of the holder of the privilege and the maintenance of privilege. Here, TDJV has chosen to disclose part of the March Report to support is claim in this action. The question is whether this disclosure is conduct which is inconsistent with maintaining privilege in the balance of the March Report.
It is well-established that voluntary disclosure of part of a privileged documents can result in waiver of privilege in relation to the balance.
The parties disagreed as to the approach which ought to be taken by the Court in respect of such matters. Siemens argued the test was “whether the material that TDJV has chosen to release from privilege represents the whole of the material relevant to the same issue or subject matter”[69] citing Matthews v SPI Electricity Pty Ltd [2013] VSC 33, [39]; AWB v Cole (No 5) [2006] FCA 1234, [164] (Young J), which in turn cites Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 482 and 484 per Gibbs CJ, 488 per Mason and Brennan JJ and 498-9 per Dawson J.
[69]Siemen’s written outline of submissions, [54(a)].
TDJV argued that there is not a separate doctrine of “associated material waiver”, but rather that properly understood, these cases are examples of the application of the Mann v Carnell[70] inconsistency test.[71] That is:
What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and the maintenance of the confidentiality; not some overriding principle of fairness operating at large.[72]
[70](1999) 201 CLR 1.
[71]Zantran Pty Limited v Crown Resorts Limited (No 2) [2020] FCA 1024, [30]-[45] (O’Callaghan J) (‘Zantran’), where his Honour rejects that there is any separate doctrine of ”associated material waiver”.
[72]Mann v Carnell (1999) 201 CLR 1, 13 [29] (Gleeson CJ, Gaudron, Gummow and Callinan JJ) (‘Mann v Carnell’).
It is not necessary for me to resolve this difference in approach, if there be a difference at all.[73] In my view TDJV has acted inconsistently with the maintenance of privilege by choosing to disclose part of the March Report, such that privilege in the full March Report (and thereby the Undisclosed Report) has been waived under s 122 of the Evidence Act. In reaching this conclusion I consider that both the Mann v Carnell test propounded by TDJV, and the “whole of the subject matter” associated material test referred to by Siemens are satisfied.
[73]The reasoning developed by Justice O’Callaghan in Zantran is compelling and I am inclined to agree that the appropriate test is that in Mann v Carnell, and that ”associated waiver” is not a separate subclass of waiver with a different test. However, having regard to my findings in respect of issue waiver, it is not necessary to address the differences in approaches.
It is necessary to consider whether the partial disclosure will ‘risk injustice through its real weight or meaning being misunderstood^’[74].
[74] Attorney-General (NT) v Maurice (1986) 161 CLR 475, 482 (Gibbs CJ) quoting Nea Karteria Maritime Co. Ltd v Atlantic & Great Lakes Steamship Corporation [No.2] (1981) Com.LR 138, 139 (Mustill J).
In Cobram Laundry Services Pty Ltd v Murray Goulburn Co-operative Co Ltd[75] Warren J (as her Honour then was) observed that:
under the doctrine of fairness that applies to the claim for legal professional privilege with respect to a document, where it is fair so that the relevant evidence may be tested, a claim for legal professional privilege ceases to apply; it is taken to have been waived: Attorney-General (Northern Territory) v Maurice (1986) 161 CLR 475; Burnell v British Transport Commission (1956) 1 QB 187 (CA). Ultimately, the effect of upholding a claim for privilege necessarily involves withholding important information from the court that may in turn be at the expense of the administration of justice to one of the parties to the proceeding. Hence there must be good cause for the existence of any privilege: see Cross on Evidence, Australian ed, para 25045; also, 8 Wigmore, para 2190.
[75][2000] VSC 353, [58].

It is necessary to consider whether the redactions in the March Report are being used unfairly by the holder of the privilege ‘to create an inaccurate perception of the protected communication’, [76] or giving rise to ”forensic unfairness” as described by Allsop J (as he then was) in DSE (Holdings) Pty Limited v Intertan Inc.[77]
[76]Attorney-General (NT) v Maurice (1986) 161 CLR 475, 488 (Mason and Brennan JJ).
[77](2003) 127 FCR 499, 519 [58], cited with approval in Director of Public Prosecution (Cth) v Kinghorn (2020) 102 NSWLR 72, [171] (the Court).
Siemens says that privilege has been waived by TDJV electing to partially disclose the March Report and otherwise electing to rely upon Tractebel’s opinions in these proceedings. Siemens argues that the means by which the Disclosed Report was provided to Aquasure as “TDJV’s diligent and comprehensive investigations into the identification of the root cause” waived privilege in documents which “defined the scope of the review or what investigations were in fact undertaken in the course of the review”, relying upon AWB v Cole (No 5) (2006) 155 FCR 30, 85 [200].
Siemens argues that it would be unfair for TDJV to assert that the Disclosed Report is the full and diligent investigation, where it only describes part of the investigations undertaken by Tractebel.
Siemens contends that splitting the questions answered in the March Report into the two separate reports does not establish that the two reports are unrelated or separate subject matters, or the ‘significance, implications or importance’[78] of the topics which have been disclosed. Siemens also argues that the redacted parts of the report relate to the design, functioning, operation and management of the electrical supply system, and will have a bearing upon or will be relevant to how the flashover occurred, and what may have contributed to it in a broad sense.
[78]Matthews v SPI Electricity Pty Ltd [2013] VSC 33, [42] (Derham AsJ) quoting Towney v Minister for Land & Water Conservation (NSW) (1997) 147 ALR 402, 414 (Sackville J).
Siemens also points to the significant amount of overlap between the two reports produced following the splitting of the March Report. This, they say, demonstrates the interconnectedness of the topics and subject matter of the two reports. It was not possible for TDJV to simply divide the March Report into discrete parts. Rather, a great deal of material was required to be duplicated in each of the Disclosed and Undisclosed Reports.
TDJV argues that the Disclosed Report and the Undisclosed Report deal with two separate subject matters, and that each report contains a full and complete opinion of Tractebel on the topics that they respectively address. TDJV says that the commonality between the documents are preliminary matters, overviews, and reference sections, which comprise the core understandings necessary for the separate documents to hang off. As such, the commonality of these sections across the Disclosed and Undisclosed Reports does not detract from the separate subject matters which they address. Thus, the considerations of fairness articulated in Great Atlantic Insurance Co v Home Insurance Co[79] and Attorney-General (NT) v Maurice[80] regarding waiving privilege in respect to only part of a document addressing a single subject matter simply do not arise. TDJV pointed to subsequent authorities which have emphasised the primacy of considering whether partial disclosure leads to unfairness, rather than the application of an inflexible rule regarding whether the document in question addresses separate subject matters.[81]
[79][1981] 1 WLR 529, 536, 538-9.
[80](1986) 161 CLR 475, 481-2, 488, 497.
[81]See GE Capital Corporate Finance Group Ltd v Anchors Trust Co [1995] 1 WLR 172, 175; Alstom Power Ltd v Yokogawa Australia Pty Ltd (No 5) [2010] SASC 267, [29]; Attorney-General (SA) v Seven Network (Operations) Ltd (2019) 132 SASR 469, [111].
At the time that the March Report was provided to MinterEllison and TDJV, the subject of the report is stated to be Tractebel’s “detailed analysis related to GIS failure [that] occurred on December 11^th, 2016”.[82]
[82]Exhibit MK-2 to Mr Krsticevic’s first affidavit, 19.
This assertion of the report being a comprehensive analysis of the GIS failure is also apparent from the “Purpose” section of the March Report (which is repeated in the Undisclosed Report), which states that it was engaged to investigate the incident and “assist in understanding the cause of the failure and damage at the [Victorian desalination plant] GIS, and potential matters of future risk within the system as currently designed”.
The subject of the Undisclosed Report is described as “Ancillary matters related to Gas Insulted Switchgear failure on December 11^th, 2016”, the description of these being “ancillary” did not originate from Tractebel. Rather, it originated from MinterEllison’s bifurcation instructions.[83] In my view it is necessary and appropriate for me to exercise my discretion under s 133 of the Evidence Act to inspect the March Report to test and scrutinise the parties’ respective arguments. That is, to test whether the answers to questions (a), (c), (d) and (e) are ancillary and unrelated to the material which TDJV has chosen to reveal to the other parties, such that TDJV has not acted inconsistently with the maintenance of privilege.
[83]Ibid 18-19.
I agree that from a review of questions asked of Tractebel the answers to which it says it has not waived privilege appear on their face to be relevant to, or could have a bearing upon, the cause of the flashover incident:
(i)question (a) asks Tractebel’s opinion “on the appropriateness of the overall power supply system design”. The answer to this question is addressed in section 4 of the March Report which is 8 pages long. Over 4 of those pages are redacted. Given that the nature of the flashover incident is a powerful electrical discharge, Tractebel‘s opinion or assessment of the overall power supply system design may well have impacted upon its opinion as to the root cause of the flashover;
(ii)question (c) asks for Tractebel’s assessment of the actual status/condition of equipment associated with the GIS and which parts are reusable. The answer to this question is entirely redacted. This assessment of damage arising from the flashover appears on its face to be relevant not only to the cause of the flashover, but also the assessment of TDJV’s damages claim for repairs;
(iii)question (d) asks Tractebel to provide a risk assessment of the GIS and associated equipment to determine the likelihood of any restart resulting in a repeated flashover event. The answer to this question is entirely redacted. Again, this assessment of the GIS may well have affected or informed its opinion on the “root cause”;
(iv)question (e) asks for Tractebel’s recommendations with respect to corrective or improvement measures that should be implemented to avoid future damage to the GIS and related equipment or assets. These recommendations as to how to avoid a future flashover event may have informed Tractebel’s opinion on the “root cause”.
My inspection of the redacted parts of the March Report confirms these views. The redacted sections address the power supply system, GIS and risk assessment and improvement measures in the manner that the questions indicate. The complexity of the desalination plant’s electrical assets and the operation of the GIS is obvious from reading the March Report, whether in its redacted or unredacted form. The apparent interrelationship between the “root cause” and the matters which TDJV has chosen to redact may well be superficial on a technical level, so as to make them “ancillary”. However, in my view, this is precisely the proposition that Siemens is entitled to test. In my view, fairness dictates that Siemens should have the benefit of the full report authored by Tractebel, and not just those parts that TDJV has chosen to reveal. It would be unfair for Siemens not to be given the opportunity to test Tractebel’s opinion as to the root cause of the flashover by reference to the full scope of the investigations which it undertook. In providing the Disclosed Report, TDJV has acted inconsistently with the maintenance of privilege in the balance of the March Report.
Having regard to my views regarding waiver of privilege under s 122(2), it is unnecessary for me to consider the operation of s 126 of the Evidence Act.

E. Conclusion

For these reasons, I conclude that the March Report and the Undisclosed Reports are privileged, but that the privilege has since been waived. I will therefore make orders requiring that unredacted copies of these documents be produced for inspection by the other parties to this action.[84]
[84]Due to clerical errors in paragraphs 7 and 44 of this ruling, a corrected version was published under r 36.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) on 31 August 2021.
I will hear the parties as to the form of order and as to costs.

SCHEDULE OF PARTIES

S ECI 2018 02258
BETWEEN:
AQUASURE PTY LIMITED (ACN 135 956 393)	Plaintiff
- v -
THIESS PTY LIMITED (ACN 010 221 486)	First Defendant
SUEZ WATER PTY LIMITED (ACN 051 950 068)	Second Defendant
SIEMENS LIMITED (ACN 004 347 880)	Third Defendant

[2021] VSC 525

25 August 2021