Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [No 2]
[2008] WASC 11
•1 February 2008
AREVA NC (AUSTRALIA) PTY LTD -v- SUMMIT RESOURCES (AUSTRALIA) PTY LTD [No 2] [2008] WASC 11
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 11 | |
| Case No: | COR:114/2007 | 23 OCTOBER 2007 | |
| Coram: | MARTIN CJ | 31/01/08 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | First and fourth defendants' claim for privilege from inspection is dismissed | ||
| B | |||
| PDF Version |
| Parties: | AREVA NC (AUSTRALIA) PTY LTD (ACN 003 337 782) SUMMIT RESOURCES (AUSTRALIA) PTY LTD (ACN 009 188 078) RESOLUTE LTD (ACN 009 069 014) MT ISA URANIUM PTY LTD (ACN 064 536 483) SUMMIT RESOURCES LTD (ACN 009 474 775) IAN MICHAEL LISHMAN |
Catchwords: | Practice and procedure Subpoena Legal professional privilege |
Legislation: | Rules of the Supreme Court 1971 (WA), O 36B r 11 |
Case References: | Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
SUMMIT RESOURCES (AUSTRALIA) PTY LTD (ACN 009 188 078)
First Defendant
RESOLUTE LTD (ACN 009 069 014)
Second Defendant
MT ISA URANIUM PTY LTD (ACN 064 536 483)
Third Defendant
SUMMIT RESOURCES LTD (ACN 009 474 775)
Fourth Defendant
Catchwords:
Practice and procedure - Subpoena - Legal professional privilege
(Page 2)
Legislation:
Rules of the Supreme Court 1971 (WA), O 36B r 11
Result:
First and fourth defendants' claim for privilege from inspection is dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr P R Whitford SC & Mr J C Giles
First Defendant : Mr C L Zelestis QC & Mr B Dharmananda
Second Defendant : Mr D J Stone
Third Defendant : Mr D J Stone
Fourth Defendant : Mr C L Zelestis QC & Mr B Dharmananda
Mr Ian M Lishman : Mr B D Luscombe
Solicitors:
Plaintiff : Minter Ellison
First Defendant : Clayton Utz
Second Defendant : Williams & Hughes
Third Defendant : Williams & Hughes
Fourth Defendant : Clayton Utz
Mr Ian M Lishman : Mallesons Stephen Jaques
Case(s) referred to in judgment(s):
Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276
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1 MARTIN CJ: On 23 October 2007, I directed that a subpoena issue to a solicitor, Mr Ian Michael Lishman, requiring him to produce to the Court documents falling within four categories to be specified in the subpoena. I concluded, for the reasons provided in my judgment in Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276 that documents to be produced by Mr Lishman and falling within three of those categories were not privileged from inspection, because any legal professional privilege attaching to those documents had been waived. In relation to the remaining category of documents, I concluded that it would be open to Mr Lishman's clients, Summit Resources Ltd (Australia) Pty Ltd and Summit Resources Ltd (the Summit parties), to assert a claim for privilege from inspection. That category of documents is described in the subpoena as:
All documents evidencing or recording any instructions given to Cochrane Lishman by any person to provide advice to Summit Resources Ltd in connection with the Supreme Court proceedings CIV 2021 of 2006.
2 The Summit parties have asserted a claim to privilege from inspection in respect of two of the documents that have been produced by Mr Lishman which fall within that category. The Summit parties assert that those documents are the subject of legal professional privilege, and that the privilege has not been waived. The Summit parties' claim is supported by an affidavit of Mr Lishman sworn on 12 November 2007. A list of the documents produced in answer to the subpoena is attached to that affidavit. In that list, the documents are described as follows:
G0001: Email from Lishman M to Berrie D, Shaw D, Quinlan P cc Eggers A, Warden D, Ashforth M entitled 'Re: Resolute Litigation - Paladin's Second Supplementary Bidder's Statement' incorporating email chain [dated 19 March 2007; and]
G0002: Email from Lishman M to Wheater M, Ashforth M, Martin D, Raston J, Eggers A, Berrie D, Shaw D cc Bosher P, Davies R entitled 'RE: Target's Statement: discussion draft' incorporating email chain and attaching:
> Document entitled 'Summary of Supreme Court proceedings for inclusion in Target Statement' undated [dated 8 March 2007]
3 The description of the first document in the list is not entirely consistent with the text of Mr Lishman's affidavit, in which he states:
15. Document numbered G0001 is a confidential email from David Berrie to David Shaw, Grant Donaldson SC, Peter Quinlan and me (copied to Alan Eggers, Doug Warden and Michael Ashforth of
- Greshams) dated 19 March 2007 (and my response to the same of the same date) in which Mr Berrie requests that I provide legal advice on an issue arising out of Summit's defence of the takeover bid that had been made for it by Paladin.
- 16. I am informed by Mr Benson that Summit claims that this document is privileged from production on the ground that it consists of a professional communication of a confidential nature passing between Summit and its legal advisers and made for the dominant purpose of obtaining legal advice.
17. In that regard, I note that:
(a) in my professional capacity as a solicitor, I was providing advice at the time of the communication to Summit in relation to the defence of Paladin's takeover bid for Summit and the Resolute Proceedings;
(b) Alan Eggers, David Berrie and Doug Warden were directors or employees of Summit at the time of the communication;
(c) David Shaw was a solicitor from Shaw & Associates that had also been engaged to provide legal advice in relation to the Resolute Proceedings;
(d) Peter Quinlan had been engaged to act as junior counsel in relation to the Resolute Proceedings;
(e) Greshams had been engaged by Summit to be its corporate adviser in relation to Paladin's takeover bid for Summit; and
(f) Grant Donaldson SC had been engaged to act as senior counsel in relation to the Resolute Proceedings.
18. Document numbered G0002 is a confidential email to David Shaw and various advisers at Blake Dawson Waldron and Greshams from me dated 8 March 2007 in which I provide legal advice and assistance for the dominant purpose of Summit's defence of the takeover bid that had been made for it by Paladin.
19. I am informed by Mr Benson that Summit claims that the document is privileged from production on the ground that it consists of or evidences a professional communication of a confidential nature passing between Summit's advisers and me which has been brought into existence or has been made for the dominant purpose of allowing Summit to be provided with legal advice and assistance.
20 In that regard, I note that:
- (a) in my professional capacity as a solicitor, I was providing advice at the time of the communication to Summit in relation to the defence of Paladin's takeover bid for Summit and the Resolute Proceedings;
(b) Alan Eggers was a director of Summit at the time of the communication;
(c) Blake Dawson Waldron had been engaged by Summit to be the primary legal adviser in relation to Paladin's takeover bid for Summit; and
(d) Greshams had been engaged by Summit to be its corporate adviser in relation to Paladin's takeover bid for Summit.
4 Mr Benson is a solicitor acting for the Summit parties.
5 The two documents in question have been produced to the Court in a sealed envelope. The parties are agreed that if I conclude that there is a sufficiently arguable case to the effect that privilege in the documents has been waived, I should inspect the documents before concluding whether in fact it has been waived.
6 There is no dispute between the parties that, but for the question of waiver, the documents would fall within the scope of legal professional privilege. That is established by their description, and the passages in Mr Lishman's affidavit which I have set out above.
7 On the issue of waiver, Areva points to pars [8] and [9] of the affidavit of Mr Lishman sworn on 22 October 2007, in which he deposes:
8 As regards category 4 of the proposed subpoena, to the best of my knowledge in the preparation of my 5 July advice, the main documents upon which I directly relied were the terms of the Isa Uranium Joint Venture Agreement, materials recording advice from Summit's Senior Counsel, materials recording advice from Summit's financial adviser, my advice to the Summit directors dated 5 February 2007 following my inspection of the discovered documents in CIV 2021 of 2006, legal resource materials such as materials on contract law (including as to penalties), the Corporations Act and the ASX Listing Rules, and information available on the ASX website such as ASX releases. I am informed by Mr Benson of Clayton Utz that Areva has been provided with a copy of the Isa Uranium Joint Venture Agreement and the memorandum of legal advice dated 5 February 2007.
9 Indirectly, I relied on much of the discovery in CIV 2021 of 2006 and much of the material contained in the file 'Summit re Isa
- Uranium Joint Venture'. Whilst I did not place specific reliance on these documents, I relied on my knowledge of the matter generally, that knowledge being based upon every document and piece of information to which I had been privy in relation to this matter. It is possible I also relied upon information other than that described above although I cannot now recall.
8 Those paragraphs are relevant because of my conclusion (in the judgment of Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276 delivered on 23 October 2007) that privilege has been waived in respect of 'all the documents evidencing or recording any material or information or matters taken into account by Mr Lishman or any person assisting him in the preparation of the 5 July letter' (at [55]).
9 Areva further submits that because the documents have been produced in answer to the subpoena, it follows that they meet the description in the relevant category of the subpoena, being 'documents evidencing or recording any instructions given to Cochrane Lishman by any person to provide strategic advice to Summit Resources Ltd in connection with the Supreme Court proceedings CIV 2021 of 2006'. So Areva submits that by reason of the paragraphs in Mr Lishman's affidavit of 22 October 2007 (which I have excerpted above), it should be inferred that the documents record material or information taken into account by Mr Lishman at the time he produced his letter of 5 July 2007, with the consequence that they fall within the scope of the waiver of privilege which I have previously found.
10 Areva also points to the fact that one of the documents bears the same date, namely, 8 March 2007, as another document which has been produced emanating from Mr Lishman, and which contains an analysis of various aspects of the proceedings CIV 2021 of 2006. It is submitted that it can be inferred that the document of the same date over which privilege from inspection is claimed, deals with the same topic.
11 It seems to me that such an inference would be speculative and is, in any event, unnecessary for the resolution of this issue. That is because I accept that as the documents have been produced in answer to the subpoena, it must be concluded that they evidence or record instructions or information given to Mr Lishman to provide strategic advice to the Summit parties in connection with proceedings CIV 2021 of 2006.
12 The Summit parties submit that because the documents have been listed in the attachment to Mr Lishman's affidavit as falling within the
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- category of documents in the subpoena to which I have referred, it can be concluded that the documents do not fall within any of the other categories of the subpoena. Those categories include, relevantly, a category extending to 'all documents evidencing or recording any material or information relied upon by Mr Lishman or any person assisting him, in the preparation of the 5 July letter'. Accordingly, as Mr Lishman has not placed the documents in the portion of the list dealing with that category, the Summit parties submit that it should be inferred that they were not relied upon by him at the time of preparing the 5 July letter, and do not therefore fall within the scope of the waiver which I have found.
13 The difficulty which I have with that submission is that Mr Lishman does not expressly depose to the proposition that the documents do not record information or material which was taken into account by him at the time he prepared the advice contained in his letter of 5 July 2007. If that is the fact, then I would expect that to have been specifically asserted in Mr Lishman's affidavit, rather than leaving it to be drawn as an inference from the structure of the list attached to his affidavit.
14 The letter of 5 July 2007 concerns, amongst other things, the Summit parties' prospects in proceedings CIV 2021 of 2006. As the two documents in question are to be assumed to deal with that subject, in the absence of an express assertion to the contrary, there seems to me to be an open inference to the effect that the documents evidence or record material or information taken into account by Mr Lishman at the time he prepared the advice the subject of his letter of 5 July 2007. Because I have concluded that inference is open, I have inspected the two documents provided in the sealed envelope.
15 Both documents contain text which includes an analysis of the issues arising in proceedings CIV 2021 of 2006. One document is primarily concerned with the counterclaim in those proceedings. The other includes a more comprehensive analysis of the issues which arise in the proceedings.
16 The letter of 5 July 2007 includes a number of assertions in respect of the strength of the Summit parties' claims in those proceedings. Given that Mr Lishman has deposed, in par [9] of his affidavit of 22 October 2007, that in the preparation of his letter of 5 July 2007 he relied upon his 'knowledge of the matter generally', I conclude the documents which I have inspected, and which are the subject of the claim for privilege from inspection, record material or information taken into account by him in
(Page 8)
- the preparation of his letter of 5 July 2007 and therefore fall within the scope of the waiver which I have previously found.
17 For these reasons, I reject the Summit parties' claim for privilege from inspection of those documents.
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