Aquasure Pty Ltd v Thiess Pty Ltd (No 2) - [2022] VSC 389

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2018 02258

BETWEEN:

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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JUDGE:	Steffensen AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2021
DATE OF RULING:	12 July 2022
CASE MAY BE CITED AS:	Aquasure Pty Ltd v Thiess Pty Ltd & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 389

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PRACTICE AND PROCEDURE – Production – Claims of privilege - Legal professional privilege – Litigation privilege – Settlement negotiation privilege – Adequacy of evidence - Dominant purpose – Use of the phrase ‘without prejudice’ – Discretion to inspect – Evidence Act 2008 (Vic) ss 118, 119, 131 and 133.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the First and Second Defendants	Mr P H Solomon QC with Mr R Minson	Lander & Rogers
For the Third Defendant	Mr A McClelland QC with Mr A Christophersen	Kennedys (Australasia) Pty Ltd

Contents

A.. Introduction

B... List of Disputed Documents

C.. Principles

C.1Evidence Act, ss 118 and 119 – Legal advice and litigation privilege
C.2Evidence Act, s 131 – Settlement negotiation privilege
C.3Evidence Act, s 133 – Inspection

D.. Submissions

E... Summary of decision

F... Significance of specific evidence

G.. Categories 1 & 7 – Repair works

H.. Category 3 – Cable Issue anticipated litigation

I.... Categories 4 and 5 – the Incident

J.... Inspected documents

K.. Conclusion

HER HONOUR:

A Introduction

This is a ruling in respect of a claim by the Thiess Degrémont Joint Venture (TDJV), a joint venture by the first and second defendants, Thiess Pty Limited (Thiess) and Suez Water Pty Limited (Suez), that 164 documents are privileged from production, either in whole or in part. The third defendant, Siemens Limited (Siemens), challenges the TDJV’s claim of privilege. The plaintiff, Aquasure Pty Limited, does not challenge the TDJV’s claim of privilege and was excused from attending the hearing.
This is the second privilege claim in these proceedings that has been referred to me for determination. The proceedings concern liability for loss suffered in respect of a ‘flashover’ event at the Victorian desalination plant (Incident). A short description of the nature of the proceedings S CI 2017 05135 and S ECI 2018 02258 to which the TDJV and Siemens are party is set out at [1]-[4] of my ruling dated 25 August 2021 (First Ruling).[1]
[1]Aquasure Pty Ltd v Thiess Pty Ltd & Ors [2021] VSC 525.
My First Ruling addresses Siemens’ challenge to privilege claimed by the TDJV in redactions it had made to two reports prepared by the engineering consultancy firm, Tractebel, in the aftermath of the Incident. I determined that despite inadequacies in the evidence adduced by the TDJV,[2] I was satisfied that the documents were privileged under ss…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] VSC 389
Decision Date: 12 July 2022

CaseChat Overview and Summary

Aquasure Pty Ltd brought an action against Thiess Pty Ltd, claiming damages for breach of contract and other related causes of action. The dispute in this case centred around the production of certain documents that Aquasure alleged were relevant to the case, which Thiess refused to produce, citing legal professional privilege, litigation privilege, and settlement negotiation privilege. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the documents in question were protected by the asserted privileges and whether there was sufficient evidence to support such claims. The court was required to determine the adequacy of the evidence provided by Thiess to support its claims of privilege, the dominant purpose test for legal professional privilege, and the use of the phrase "without prejudice" in the context of settlement negotiations. Additionally, the court had to consider its discretion to inspect the documents under the Evidence Act 2008 (Vic).

The court found that the evidence provided by Thiess was insufficient to establish the claimed privileges. The court held that the dominant purpose test for legal professional privilege was not met, as the documents were created for purposes other than obtaining or giving legal advice. Regarding the use of the phrase "without prejudice," the court found that it did not automatically confer privilege on the communications. The court exercised its discretion to inspect the documents and concluded that they were not privileged. Consequently, the court ordered Thiess to produce the documents to Aquasure.

The final orders of the court mandated that Thiess produce the documents to Aquasure within a specified timeframe, and the case proceeded with the documents in question now available for consideration by both parties.

Orders