AusNet Electricity Services Pty Ltd v Liesfield

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

No S CI 2012 4538

AUSNET ELECTRICITY SERVICES PTY LTD (ACN 064 651 118) (FORMERLY SPI ELECTRICITY PTY LTD)	Appellant
v
RODERIC LIESFIELD	Respondent

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 August 2014
DATE OF JUDGMENT:	23 September 2014
CASE MAY BE CITED AS:	AusNet Electricity Services Pty Ltd v Liesfield
MEDIUM NEUTRAL CITATION:	[2014] VSC 474

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PRACTICE AND PROCEDURE – Class action proceedings against the appellant arising out one of the Black Saturday bushfires (‘the Murrindindi fire’) – Appellant claimed legal professional privilege in relation to a bundle of reports it had prepared (‘the technical analysis documents’) – Documents produced shortly after the appellant was advised by the Victoria Police that the police were investigating whether the appellant was responsible for the start of the fire – Associate Judge ruled that the technical analysis documents were not privileged – Appeal against the decision of the Associate Judge – Instruction for production of the documents given by a sub-committee of the board of directors – Member of the sub-committee giving the instruction not called to explain purpose in seeking production of the technical analysis documents – Consideration of the dominant purpose of the sub-committee – Consideration of possible purposes of the sub-committee other than privileged purposes – Consideration of inferences that could be drawn from the appellant’s failure to call evidence that was available to be called – Blatch v Archer considered – Appeal dismissed.

PRACTICE AND PROCEDURE – Appeal from a decision of an Associate Judge on findings of fact – nature of appeal – test to be applied on appeal to findings of fact.

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P H Solomon QC with Mr P H Wallis	Herbert Smith Freehills
For the Respondent	Ms F K Forsyth with Ms M Szydzik	Maurice Blackburn

TABLE OF CONTENTS

Introduction

The Bushfire Response Team

Bushfire Litigation Sub-Committee

The change of focus of the police investigations

The meeting of the sub-committee on 12 July 2011

The decision of the associate judge

The grounds of appeal

The nature of the appeal

The new evidence

Perry v Powercor

Issue 1: Whose purpose?

Issue 2: Admission of Evidence

Issue 3: Dominant Purpose

Two or more purposes

The associate judge’s finding on purposes

Did the associate judge err on dominant purpose?

HIS HONOUR:

Introduction

This is an appeal from the decision of an associate judge who ordered that the appellant produce for inspection by the respondent a body of documents the appellant created in 2011, known as the ‘technical analysis documents’.

The respondent to the appeal is the representative plaintiff in proceedings by way of a class action against the appellant and others seeking damages arising out of the Black Saturday fires – in particular the fire that commenced near the Murrindindi Sawmill in Wilhemina Falls Road at Murrindindi, Victoria. These proceedings are known as the Murrindindi class action and commenced on 7 August 2012. The plaintiff alleges, inter alia, that the fire was caused by the appellant’s electrical assets at Murrindindi and the appellant is liable to the plaintiff. The plaintiff lived with his family at Woods Point, Marysville. His property, including a bed and breakfast business called ‘Nanda Binya’, was destroyed and his wife and two children died in the fire.

This fire is distinct from the fire known as the Kilmore East fire, which has recently been the subject of a trial heard by J Forrest J. The appellant was a defendant in the Kilmore East action. After a trial lasting 208 sitting days, the parties announced that the action had been settled subject to the terms of settlement being approved by this Court. The Murrindindi class action will be the last piece of litigation arising out of the Black Saturday bush fires. The trial is scheduled to commence in February next year before Dixon J.

In respect of the Murrindindi bushfires, it was originally apprehended that the cause of the fire was arson, and this was initially the focus of the investigations by Victoria Police into the cause of the fire. In July 2011, approximately two-and-a-half years after the fire occurred, Victoria Police changed its tack and informed the appellant that the focus of its investigation was no longer arson. Instead, it was considering other causes, including the appellant’s electrical assets. It appears that this was the first time that the police had suggested to the appellant that the appellant’s electrical assets may have been responsible for starting the fire.

Soon after the police conveyed this information, the appellant prepared what became known as the technical analysis documents. These documents deal with the appellant’s electrical assets at the point where the Murrindindi fire started and are obviously relevant to the civil damages proceeding. The associate judge found that there was no evidence that at this time any non-privileged investigation or analysis had been conducted by the appellant in the ordinary course of its business, in relation to the alleged failure of its assets and any relationship to the Murrindindi fire – whether for the purposes of providing information to regulators or insurers or other internal investigations or reporting requirements.

The appellant claimed that the technical analysis documents and other documents not relevant to this appeal were subject to legal professional privilege and refused to make the documents available for inspection. The appellant relied on ss 118 and 119 of the Evidence Act 2008 (Vic), which concern legal advice and litigation privilege respectively. These sections read as follows:

118 Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
(a)a confidential communication made between the client and a lawyer; or
(b)a confidential communication made between 2 or more lawyers acting for the client; or
(c)the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person—

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
119 Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
(a)a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b)the contents of a confidential document (whether delivered or not) that was prepared—

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

The associate judge who heard the respondent’s application for inspection found that the appellant had failed to establish its claim for legal professional privilege in respect of all the documents for which privilege was claimed, including the technical analysis documents.

The appellant appeals against the part of the associate judge’s order that relates to the technical analysis documents.

It is undisputed that the request for the production of the technical analysis documents was made orally by the Chair of a sub-committee of the appellant’s board of directors. The request was made during a meeting of the sub-committee.

There are three issues raised in the appeal. First, whether the associate judge erred in allegedly having regard to the purpose of the Chair of the sub-committee rather than to the purpose of the sub-committee when ascertaining the dominant purpose for the production of the documents. Secondly, whether the associate judge erred in finding that the hearsay evidence of two persons present at the sub-committee meeting as to what the Chair said was inadmissible. Thirdly, assuming that the evidence of the two persons present at the sub-committee meeting was admissible, whether the associate judge erred in finding that the appellant had failed to satisfy him on the balance of probabilities that the dominant purpose for the production of the technical analysis documents was a privileged one as His Honour erred in finding that there were other non-privileged purposes for the production of the documents.

It is important to state from the outset what the appeal on the third issue is not about. The appellant contended that the purpose of the documents was to instruct its lawyers Freehills for legal advice and representation that may arise out of the Murrindindi Bushfire. The appellant’s claim hinged on the fact that this was the sole purpose of the relevant documents. At no point did the respondent accept that there were any – albeit less important or pressing – other purposes for commissioning the technical analysis documents.

The appellant made no submissions and tendered no evidence, both before the associate judge and this court, as to whether legal advice and representation was the dominant purpose over that of another purpose.

For the reasons that follow, I consider that it was open to the associate judge to find that there were non-privileged purposes for the production of the technical analysis documents and that thus the appellant had failed to satisfy him on the balance of probabilities that the dominant purpose for the production of the technical analysis documents was a privileged one.

Before turning to these issues, it is necessary to outline the background to the production of the technical analysis documents.

The Bushfire Response Team

On Saturday 7 February 2009 (now known as Black Saturday), areas north of Melbourne were ravaged by deadly bushfires, including the fire now known as the Murrindindi fire. Tragically, nearly two hundred people were killed in these fires, along with the destruction of much property. On Monday 9 February 2009, the Premier Mr John Brumby announced that there would be a Royal Commission into the bushfires.

In early - to mid-February 2009, very shortly after Black Saturday, Kyriacos Karafotias, the Legal Manager of the appellant, established the appellant’s Bushfire Response Team (BRT). At that time, Mr Karafotias, as the Legal Manager, regularly gave legal advice to the appellant.

Mr Karafotias was the ‘team lead’ of the BRT, which also comprised two other members, Ross Clark and Yoshiko Yamaoka. Mr Clark and Mr Yamaoka were responsible for gathering technical information under Mr Karafotias’ supervision.

According to the appellant, the role of the BRT was to brief the legal firm Herbert Smith Freehills (Freehills) to represent and provide advice to the appellant on all aspects of the Victorian bushfires that might impact on the appellant, and act as the appellant’s solicitors. At that time, Freehills was briefed in relation to (among other things) the police investigation on the Coroner’s behalf, the Royal Commission that had been established to investigate the Black Saturday fires, and, although not relevant to Murrindindi, the Kilmore class action proceeding.

The BRT was disbanded in February 2010, about a year after the fires, and its responsibilities were then assumed by Karena Reid. Ms Reid then held the position of Legal Manager with the appellant, and in that role regularly gave legal advice to the appellant. Mr Clark continued to work with Ms Reid from this time as needed in briefing and instructing the appellant’s legal team, including Freehills. Ms Reid reported to Susan Taylor, General Counsel of the appellant. Ms Taylor was a member of the Bushfire Litigation and Inquiry Response Sub-Committee, referred to below.

Bushfire Litigation Sub-Committee

In early March 2009, the appellant’s board of directors established a sub-committee of the board of directors known as the Bushfire Litigation and Inquiry Response Sub-Committee (the BLSC or sub-committee).^. From February 2009 to February 2010, Mr Karafotias reported to the sub-committee, and was required to attend its meetings as a legal advisor.

Mr Karafotias deposed that the sub-committee had authority to assist and guide the BRT to enable it to instruct external legal counsel and to assist with the appellant’s response to:

(a)the Royal Commission;
(b)any class action relating to bushfires; and
(c)any subsequent or associated litigation.

If there was a written charter of the sub-committee, or a minute of the board of directors establishing the sub-committee, it was not tendered by the appellant. If the board established the sub-committee by a board resolution then a minute of the resolution would have been required to have been kept by law.[1]
[1]Corporations Act 2001 (Cth) (Corporations Act) s 251A.

Mr Karafotias deposed that Freehills was engaged to act for the appellant in relation to all aspects of the fires that commenced in the appellant’s distribution network on 7 February 2009, on or shortly thereafter, including the Murrindindi fire.

In relation to the period after the BRT was disbanded in February 2010, Ms Reid had responsibility for reporting to the sub-committee – although not as a member of the sub-committee. Ms Reid deposed that the role of the sub-committee is, and was at all times, to guide and assist her in instructing the appellant’s external counsel to advise and represent the appellant in relation to all matters relating to the Victorian bushfires.

Ms Reid’s responsibilities also included instructing Freehills (with Susan Taylor, who was General Counsel and a member of the sub-committee) in relation to all matters relating to the Victorian bushfires, insofar as they related to the appellant.

The change of focus of the police investigations

The appellant contends that the technical analysis documents at issue were produced at the request of the sub-committee during a meeting held on 12 July 2011. Before turning to that meeting and the evidence given about it, it is necessary to put the meeting into context.

On 15 June 2011, at a meeting between the appellant and Victoria Police, the appellant was informed that the focus of Victoria Police’s investigation was no longer arson but that it was considering other causes, including the appellant’s electrical assets. It will be recalled that Victoria Police originally apprehended that the cause of the Murrindindi fire was arson.

The appellant did not lead any evidence on whether or not, prior to this meeting with Victoria Police:

(a)its electrical assets or conduct was the subject of any aspect of the Royal Commission;
(b)Victoria Police had given any indication that the appellant’s employees or agents or anybody for whom the appellant was responsible might be the subject of legal proceedings; or
(c)the appellant was or might be in any way responsible for the Murrindindi fire.

The meeting with Victoria Police is the first suggestion in the evidence led by the appellant that there was to be an investigation into what role, if any, the appellant’s electrical assets played in the Murrindindi fire. It is in this context that it is now necessary to turn to the meeting of the sub-committee on 12 July 2011.

The meeting of the sub-committee on 12 July 2011

As evidence on this issue is critical to the resolution of the appeal, I will quote in full the evidence of the two persons who attended the meeting and gave evidence: Ms Reid and Mr Norman Drew. I should add that the evidence led establishes that at least six persons attended the meeting. The evidence of the appellant is silent as to whether any other people attended this meeting.

Ms Reid, in her affidavit of 18 November 2013, deposes about the events leading up to the sub-committee meeting of 12 July 2011, the meeting, and subsequent events as follows:[2]
[2]Emphasis in original.

Technical analysis
9.On 15 June 2011, I attended a meeting (with Freehills and Phillip Bryant of SP AusNet) with representatives of the Victorian Police, being Detectives Andrew Kerr and Mark Kennedy. At that meeting, one of the representatives of the Victoria Police (to the best of my recollection, Detective Kerr) indicated in words to the effect that “the focus of our investigation is no longer arson. We are considering other causes, including the appellant’s electrical assets”.
10.On 12 July 2011, I attended a meeting of the Bushfire Litigation Committee. Ruth Overington, a Senior Associate from Freehills, also attended the meeting. Ms Overington and I reported to the Committee on the status of the Police investigation, and the potential for litigation against the appellant in respect of the fire. At the meeting, the Chair of the meeting directed that Ms Taylor, and Norm Drew (the General Manager, Network Development and one of the other Committee members), ensure that technical personnel within [the appellant] gain an understanding of events around the time of the Murrindindi fire for the purpose of [the appellant] obtaining, and Freehills providing, advice and representation.
11.On 14 July 2011, I received a request from Ms Overington that [the appellant] provide to Freehills technical analysis to assist Freehills to advise the appellant in connection with the investigation, which was being undertaken by the Police on the Coroner’s behalf.
12.Shortly after receiving that request, I asked Mr Drew and Dhammika Adihetty (who had attended the recent Bushfire Litigation Committee meeting as proxy for Charles Popple, the General Manager, Network Strategy) to undertake the requested analysis.
13.Over the period from 22 July to 11 August 2011, I received a number of drafts of a paper and supporting PowerPoint presentation as follows:
(a)on 22 July 2011, I received a draft of the paper, and PowerPoint, from Mr Drew, at which point Mr Drew indicated that the analysis requested by Freehills had been carried out by Ross Clark, from Mr Adihetty’s team and Mr Bryant from Mr Drew’s team;
(b)on 4 August 2011, I received a note from Mr Clark, which I requested that he prepare, which contained instructions for Freehills in relation to the most recent queries they had received from the Victoria Police. Mr Clark’s note attached another draft of the paper, and PowerPoint (being documents numbered 221 and 222 of the appellant’s list of documents dated 11 September. I forwarded Mr Clark’s note, including the draft paper and PowerPoint, to Ms Overington; and
(c)on 11 August 2011, I received further drafts of the paper, and PowerPoint from Mr Drew, which were also provided to Ms Taylor.

14.On 12 August 2011, I received a copy of the paper (which was signed by Mr Drew, with the PowerPoint as an attachment) by way of email from Ms Taylor which was also sent to the members of the Bushfire Litigation Committee.
15.On 1 September 2011, I attended a further meeting of the Bushfire Litigation Committee, during which:
(a)I reported that the action item arising from the last meeting (described at paragraph above 10 above) had been completed; and
(b)Ken Adams of Freehills provided legal advice to the Committee in relation to the investigation being undertaken by the Police on the Coroner’s behalf.

Norman Peter Drew, the General Manager of Network Development with the appellant and a member of the sub-committee, also attended the meeting. In his affidavit of 18 November 2013, Mr Drew deposes as follows about the sub-committee meeting of 12 July 2011 and the following events:

Technical analysis

5.In a Bushfire Litigation Committee meeting on 12 July 2011, which I attended, the Chairman of the Committee requested that I, with Susan Taylor ([the appellant’s] General Counsel), ensure that a technical network analysis be undertaken in relation to the Murrindindi fire on 7 February 2009.
6.Accordingly, Ross Clark, a professional engineer in my Division, and Phil Bryant, a senior technical officer in the Network Strategy and Development Division, were requested to undertake such an analysis.
7.Mr Clark and Mr Bryant worked collaboratively to develop a number of draft versions of their analysis, which eventually had two components:
(a)a word document; and
(b)a powerpoint synopsis of the paper.

Ultimately, these draft versions became a paper, which I signed on or about 12 August 2011… for submission to the Committee.
8.On or about 12 August 2011, I provided the paper (signed), with an attached powerpoint synopsis, to Ms Taylor for provision to the Committee, which was disseminated to the Committee by email on the same day. I received that email as a member of the Committee.
9.Various draft versions of the paper or the powerpoint synopsis are referred to in [the appellant’s] Lists of Documents dated 16 August 2013 and 11 September 2013.

Evidence was also led by others involved in the preparation of the technical analysis documents. Mr Ross Clark deposes that from July 2011 until October 2011, he was the Manager of the Field Services and Support Team. Mr Clark deposes that from February 2009 to February 2010, he held the specially created position of Technical Lead in the BRT, which reported to the appellant’s Legal Group.

Mr Clark deposes that in his role as Technical Lead on the BRT, his responsibilities included gathering information under the supervision of Kerry Karafotias, who was the Team Lead. Mr Clark deposes that given his role on the BRT, after the team disbanded in January 2010 he continued to work as needed with Ms Reid and Mr Bryant in briefing and instructing the appellant’s legal team, including its external lawyers, Freehills.

Mr Clark deposes that sometime in July 2011, Dhammika Adihetty (who had attended the 12 July 2011 sub-committee meeting) requested that he undertake certain technical analysis of the appellant’s Murrindindi assets. Mr Clark did not explain what he meant by ‘certain technical analysis of the appellant’s Murrindindi assets’. In fact, none of the appellant’s witnesses explained what was meant by this description. As discussed below, it is possible to infer from the direction given by the chair of sub-committee what it was intended the analysis would encompass.

Mr Clark says that he worked collaboratively with Mr Bryant in undertaking that analysis. Mr Clark says that he recalls sending a word document and a PowerPoint containing the current draft of the analysis to Ms Reid on 4 August 2011. Mr Clark says that he and Mr Bryant continued to work on the analysis in August 2011, and that in early September they received further information relevant to the analysis from Ruth Overington of Freehills. He says that ‘we updated the analysis, with a view to providing a paper to Freehills so that they could provide advice on the Victoria Police investigation’.

Mr Bryant deposes that he is employed by the appellant in the Asset Management Division. He says that from 2007 to December 2011, his role was as Technical Manager, Asset Strategy & Planning.

Mr Bryant deposes that after the BRT was disbanded, he was asked by Susan Taylor to assume responsibility as the point of contact with Freehills in relation to all aspects of the Beechworth, Kilmore East and Murrindindi fires.

Mr Bryant says that sometime in July 2011, Mr Drew requested that he assist him with certain technical analysis of the appellant’s Murrindindi assets that Mr Bryant understood was intended for Freehills. Mr Bryant deposes that he worked on answering Mr Drew’s request with Mr Clark over a period of time from July to September 2011. Mr Bryant deposes that over this time, he and Mr Clark received additional information from Victoria Police, which they incorporated in their analysis.

Thus, on this evidence, the technical analysis was requested by the Chair of the sub-committee. The analysis was prepared by Mr Clark and Mr Bryant. Mr Clark deposes that the request to prepare the analysis came from Mr Adihetty, who was present at the sub-committee meeting. Mr Bryant said he was requested by Mr Drew, who was present at the sub-committee meeting, to assist him in preparing the analysis.

The decision of the associate judge

When dealing with the technical analysis documents, the associate judge reviewed the evidence as dealt with above.

The associate judge referred to the plaintiff’s submission that Ms Reid’s evidence of the instructions by the unidentified Chair of the sub-committee – that ‘technical personnel within SPI [the defendant and appellant in this case] gain an understanding of events around the time of the Murrindindi fire for the purpose of SPI obtaining, and Freehills providing, advice and representation’ – is objectionable. The respondent submitted that it amounted to a lay opinion not supported by evidence of what she saw, heard or otherwise perceived about the direction given at the meeting. Reference was made to s 75 of the Evidence Act.

The associate judge referred to a submission by the plaintiff that this statement could not be accepted as evidence of the purpose of the technical analysis documents because:

(a)Ms Reid was not the source of the purpose, the giver of instructions, nor the receiver of instructions;
(b)Ms Reid referred to no confidential communications or documents being prepared, or being directed to be prepared by any personnel – only that they ‘gain an understanding’ of events;
(c)The language was loose and ambiguous, and there is an artificiality about putting forward such a proposition as a privileged purpose;
(d)The use of the words ‘the purpose’ had not been clarified as a dominant or sole purpose. This is in the context of numerous requests by the plaintiff in correspondence for this specific issue to be addressed in affidavit material;
(e)Ms Reid, unlike Mr Drew, was not a member of the sub-committee; and
(f)Ms Reid’s evidence was inconsistent with Mr Drew’s evidence that he was asked simply to ensure that a technical analysis was undertaken. Given Mr Drew’s role, his evidence should be preferred.

The associate judge referred to submissions by the plaintiff that:

(a)The defendant has not provided sufficient evidence of the dominant purpose for which these documents were brought into existence;
(b)An adverse inference should be drawn against the defendant for failing to provide evidence of purpose from the Chair of the sub-committee. That sub-committee was a sub-committee of the defendant’s Board of Directors and is different from the BRT; and
(c)The nature of the documents, and the various versions and dates, suggest, and the inference should be drawn, that it was a living document for the defendant to use for a number of purposes, including business and operational reasons.

His Honour noted that the plaintiff pointed out that:

(a)Ms Reid deposed to a separate request from Freehills for a technical analysis, but this was not the request that Mr Drew identified as being the source of his instructions for the documents to be prepared. Ms Reid had, in her affidavit, made clear that this request post-dated the request she described as occurring at the sub-committee. Such a multiplicity of requests suggests, the plaintiff submitted, a potential multiplicity of uses and purposes for the documents in question;
(b)Ms Reid also stated that she received drafts of the documents. However, she identified no documents by number in paragraphs 13(a) or 13(c) of her affidavit, and the dates of the documents she identified in paragraph 13(b) and 14 (when examined in the third list) in fact post-date the dates on which Ms Reid deposed to having received these documents;
(c)The dates of the documents are important because they demonstrate that the various versions of the technical analysis were continually being updated and added to – that it was likely to be a ‘living document’. The plaintiff submitted that it appears drafts were produced from early July 2011, and work continued through August (beyond 12 August 2011 when the document was provided to the sub-committee and to Ms Reid) and through late August and September, at least until version 10, which is dated 14 September 2011.

His Honour said that the plaintiff submitted that all these matters supported a finding that the defendant had not discharged the onus of demonstrating any clear purpose – let alone a dominant purpose – for legal advice. The plaintiff contended that what was more likely in such circumstances was that a technical analysis was prepared for a number of reasons, including important operational reasons, although the documents may also have been used to assist lawyers in undertaking various tasks.

The associate judge then referred to further submissions by the plaintiff that:

(a)No evidence had been given by the Chair of the sub-committee, nor had he or she been identified;
(b)The failure of the Chair of the sub-committee to give evidence as to his or her purpose in directing the technical analysis was significant, because his or her purpose appeared to be crucial in determining the corporate purpose of the defendant in producing the technical analysis documents: Perry v Powercor Australia Limited;[3]
[3][2011] VSC 308 (Powercor).
(c)The failure to adduce evidence from the Chair of the sub-committee was not explained;
(d)The Court should therefore draw an inference that the Chair’s evidence would not assist the defendant’s claims for privilege over the technical analysis documents: Jones v Dunkel;[4]
[4](1959) 101 CLR 298 (Jones v Dunkel).
(e)Although no evidence was before the Court as to other ‘operational purposes’ for the production of the technical analysis documents, given the paucity of evidence on the issue of purpose, the inference was to be drawn that there were other non-privileged purposes for the production of the technical analysis documents;[5]
[5]See, for example, Singapore Airlines v Sydney Airport Corporation [2004] NSWSC 380 (Singapore Airlines).
(f)There was no evidence that any non-privileged investigation or analysis was conducted by the defendant in relation to the alleged failure of its assets and any relationship to the Murrindindi fire in the ordinary course of its business, whether for the purposes of providing information to regulators or insurers, or other internal investigation or reporting requirements. In this regard, the plaintiff noted that discovery was not yet complete and if the defendant was aware of any such documents existing, this could be clarified for the Court. The plaintiff had consistently requested more information about the investigation that was undertaken by the defendant, but had not received a response to those requests;
(g)It was rational and appropriate to infer from:

(i) the nature of the allegations made about the role of the defendant’s assets in the Murrindindi fire; and

(ii) the corporate structure and organisation of the defendant,

that investigations or analysis would normally be conducted to determine whether, and if so, why, the defendant’s assets failed. It was difficult to accept that a sophisticated and responsible organisation such as the defendant would not have in place procedures for investigating and responding to any faults in their assets, so that management was armed with knowledge of what occurred;[6] and

(h)The circumstances of this case were relevantly indistinguishable from Powercor. There, the defendant’s CEO had directed in-house lawyers to commission reports into the causes of a fire attributed to their assets, and the reports were then commissioned by the in-house lawyer or an external lawyer. In that decision, the Court inferred from the circumstance in which the reports were commissioned that they must have been commissioned for a number of purposes. One purpose was to obtain legal advice, but other purposes included the provision of information to the regulator, insurers, the internal reporting and investigation units, preparing for the Royal Commission, reviewing its own maintenance programme, and the continued use of the type of equipment that failed.[7] Powercor argued that most, if not all, of these purposes attracted privilege. However, the Court indicated that Powercor had failed to discharge the onus of establishing privilege because there was no evidence from the CEO as to his purposes when he directed the production of the report. As there was no explanation for the absence of evidence from the CEO, an inference could be made that his evidence would not have assisted the claim for privilege.[8] The decision and reasoning were upheld by the Court of Appeal.[9]

[6]Grant v Downs (1976) 135 CLR 674, 687 (Stephen, Mason and Murphy JJ).

[7]Powercor, [67]—[71].

[8]Powercor, [52], [72]—[77].

[9]Powercor Australia Ltd v Perry (2011) 33 VR 548; [2011] VSCA 239 (Warren CJ, Nettle and Tate JJA).

The learned associate judge also said that the plaintiff had contrasted the situation in Matthews v SPI Electricity Pty Ltd,[10] where the associate judge had held that an email containing preliminary information regarding the circumstances of the Kilmore East bushfire, and a briefing note setting out relevant facts of the circumstances of the fire, were subject to privilege. In that case, the reason was that they were produced for the sole purpose of assisting in, or being used for, the brief to external lawyers.[11]
[10][2013] VSC 422 (Matthews).
[11]Ibid, [16]—[17].

The learned associate judge noted that the plaintiff further submitted that the difference between the case of Matthews and the present case was significant. The document in question in Matthews appeared to be of an identical nature to the Bible, listed as document 76 in the application before the associate judge. The plaintiff no longer challenged the claim to privilege in that document on the basis of Mr Karafotias’ evidence that it was prepared for the purpose of provision of legal advice and for no other purpose. Moreover, in Matthews, the associate judge also relied on the Charter pursuant to which the BRT was established as evidence of corporate purpose. The language of Mr Karafotias’ affidavit regarding the Bible and the presence of the Charter could be contrasted with the loose collection of evidence without any sufficient statement of purpose, and a paucity of evidence as to the corporate purpose in relation to the technical analysis documents.

The associate judge said that the plaintiff submitted that the same adverse inferences made in Powercor should be made in this application. The defendant had been on notice of the requirement for focused and specific evidence of the purpose of which the technical analysis documents were produced. The defendant had a full opportunity to supply that evidence and it had failed to do so.

The learned associate judge then considered the submissions. His Honour referred to the fact that Ms Reid’s evidence had been challenged as hearsay evidence and he referred to his earlier finding that for affidavit evidence of hearsay material to be admitted in an interlocutory proceeding it is necessary to identify the source of the evidence. His Honour said it was not sufficient to identify only the position or office of a person unless that identifies the person. In dealing with s 75 of the Evidence Act, his Honour held that for hearsay evidence to be admissible under s 75 in an interlocutory proceeding, the source (or at least the primary source) must be identified by name. His Honour said that the natural and ordinary meaning of ‘source’ suggests that the person who is the source of the evidence is identified. His Honour, in coming to that conclusion, considered a series of cases, including Registrar of Aboriginal Corporations v Murnkurni Women’s Aboriginal Corporation,[12] DeBortoli Wines Pty Ltd v HIH Insurance Ltd,[13] Lewis v McDonald,[14] Wily v Terra Cresta Business Solutions Pty Ltd,[15] New South Crime Commission v Vu,[16] and Liu v The Age Company.[17]
[12](1999) 17 ACLC 810 (FCA).
[13](2011) 200 FCR 253.
[14](1997) 75 FCR 36, 43.
[15][2006] NSWSC 949.
[16][2009] NSWCA 349, [45].
[17][2010] NSWSC 1176, [45].

It is not necessary to examine these authorities as on the appeal the appellant argued that the affidavit of Ms Reid containing the challenged hearsay evidence was admitted into evidence without objection under s 75 of the Evidence Act. There was no contrary argument by the respondent on the appeal. Nevertheless, in the judgment of the associate judge, his Honour held that paragraph 10 of Ms Reid’s affidavit recounting the instruction from the Chair was not admissible under s 75 of the Evidence Act. Similarly, if it mattered, his Honour held that the evidence of Mr Drew in paragraph 5 of his affidavit (the request of the Chairman of the BLSC) was not admissible under s 75. His Honour therefore concluded that for the reasons advanced by the plaintiff, the evidence of Mr Clark and Mr Bryant did not establish the privileged purpose for the preparation of the technical analysis documents.

His Honour also held that a close reading of Ms Reid’s first affidavit supported the plaintiff’s other criticisms of her evidence, which I have set out above. His Honour said: ‘The purpose stated by the Chair of the [BLSC], assuming it to be admissible, is to gain an understanding of the events around the time of the Murrindindi fire for the purpose of the defendant obtaining and Freehills providing advice and representation’.[18] His Honour said that it was unclear what that representation was. His Honour also said that at the time of the request, the major matter appears in the evidence in Ms Reid’s affidavit to be the Victoria Police investigation and some unidentified potential for litigation against the defendant in respect of the fire.
[18]Emphasis added.

His Honour found that the request made by Ms Overington (solicitor at Freehills) on 14 July 2011 to provide to Freehills some identified ‘technical analysis’ (in the context of the affidavit, presumably the same analysis requested by the Chair of the sub-committee, but not said to be so) to assist Freehills in advising the defendant in connection with the Victoria Police investigation would, absent other purposes, provide a privileged purpose. His Honour said that, as the plaintiff pointed out, this was not the request that Mr Drew identified as being the source of his instructions and the instructions of Mr Clark and Mr Bryant for the documents to be prepared. His Honour said that Ms Reid had, in her affidavit, made clear that this request post-dates the request she described as occurring at the sub-committee. His Honour said that the operative request for present purposes is the request of the Chair of the sub-committee, which he had held to be inadmissible.

His Honour went on to say that if that conclusion was wrong, the reasons advanced by the plaintiff that there were other purposes were persuasive and led him to conclude that the defendant had failed to discharge its onus of establishing that the dominant purpose of the preparation of the technical analysis documents was a privileged purpose. He set out those reasons as follows:

(a)The unexplained failure of the Chair of the [BLSC] to give evidence as to his or her purpose in directing the technical analysis is significant, because his or her purpose is the critical driver of the preparation of the Technical Analysis Documents, and therefore the source of the corporate purpose;

(b)I am entitled to draw an inference that the Chair’s evidence would not assist SPI’s claim for privilege over the Technical Analysis Documents: Jones v Dunkel;
(c)There is evidence that a purpose of the preparation of the documents was for Freehills to represent SPI in some unidentified way. There was no anticipated litigation identified to which that representation could relate, so the inference is open that the representation was in relation to the ongoing police investigation, the only matter identified in the affidavits that was then on foot. That is not, and was not contended by SPI to be, a privileged purpose;
(d)Although there is no evidence of any other business or operational purpose for the preparation of the documents, given the general and somewhat vague evidence on the issue of purpose, an inference is open that there were other non-privileged purposes for the production of the documents;
(e)There is no evidence that any non-privileged investigation or analysis was conducted by SPI in relation to the alleged failure of its assets and any relationship to the Murrindindi fire in the ordinary course of its business, whether for the purpose of providing information to regulators or insurers, or other internal investigation or reporting requirements. In this regard, the plaintiff noted that discovery is not yet complete and if SPI was aware of any such documents existing, this could be clarified for the Court. The plaintiff has consistently requested more information about the investigation that was undertaken by SPI, but has not received a response to these requests. SPI offered no evidence of any other investigation notwithstanding the invitation to do so; and
(f)It is reasonable to infer from the nature of the business of SPI as a distributor of electricity and from the preceding Royal Commission (which I was told did not investigate the Murrindindi fires) and the very significant damage caused generally by the Black Saturday fires, that SPI would undertake investigations or analyses to determine whether the fires were caused by a failure of SPI’s assets and for that purpose to have a proper understanding of those assets. As the plaintiff submitted, it is difficult to accept that a sophisticated and responsible organisation such as SPI would not have in place procedures for investigating and responding to any faults in their assets, so that management is armed with knowledge of what occurred.[19]
[19]Liesfield v SPI Electricity Pty Ltd [2014] VSC 348 (Liesfield), [127] (citations omitted).

The grounds of appeal

The notice of appeal lists seven grounds. Counsel for the appellant said, however, that these boiled down to three issues, as follows:

(a)The associate judge erred in identifying the purpose of the Chair of the sub-committee meeting as the relevant ‘critical driver’ of the production of the technical analysis documents. His Honour should have identified the purpose of the sub-committee, as opposed to that of the Chair, as the ‘critical driver’ of the preparation of the technical analysis documents.
(b)The associate judge erred in ruling that the evidence of Ms Reid as to the instruction given by the Chair at the BLSC meeting, and the evidence of Mr Drew of the request made by the Chair at the BLSC, was inadmissible under s 75 of the Evidence Act. The associate judge should have ruled that the evidence had been admitted without objection by the respondent.
(c)The associate judge erred in failing to find that the dominant purpose for the preparation of the technical analysis documents was a privileged purpose as His Honour erred in concluding that there were non-privileged purposes for the production of the documents in two respects. First, that His Honour found that the ‘representation’ in relation to Freehills referred to by Ms Reid might not connote a privileged purpose, and, second, that His Honour inferred that there were other business or operational purposes for the preparation of the documents.[20]
[20]Appeal Transcript, 15—16.

The nature of the appeal

The appellant appeals from the decision of the associate judge under r 77.06 of the Supreme Court (General Civil Procedure Rules) 2005. I set out the relevant provisions below.

The appellant contends that r 77.06 provides for an ‘appeal’ from a decision of an associate judge to the trial division of the Court. The appellant says that this has been characterised as a form of appeal by way of re-hearing, such that the appellant must demonstrate a legal, factual or discretionary error by the associate judge.[21]
[21]Applebee v Monash City Council [2013] VSC 481, [9]—[20]; Re Ascot Vale Self-Storage Centre Pty Ltd (in liquidation) [2014] VSC 75, [2]—[18].

The respondent submits that an appeal from a decision of an associate judge under r 77.06 is no longer by way of a hearing de novo. The respondent submits that, instead, it is a re-hearing, which ordinarily requires the appellant to show error on the part of the associate judge before appellate power may be exercised.[22] The respondent says that this error must be in the form of a legal, factual or discretionary error.[23] The respondent says that if the orders from which an appeal is brought relate to a matter of practice and procedure (as they do in this case), an appellate court is to exercise ‘particular caution’ in reviewing the decision.[24]
[22]Neely v Southern Cross Feeds Pty Ltd (No 2) [2013] VSC 238, [5].
[23]Allesch v Maunz (2000) 203 CLR 172, [23] as cited in Re Ascot Vale Self-Storage Centre Pty Ltd (in liquidation) [2014] VSC 75.
[24]Glezer v Deals.com.au [2014] VSC 202, [13]; Oswal v Carson [2013] VSC 355, [11].

As discussed above, the appellant alleges that the associate judge made three classes of error: firstly, identifying the relevant purpose to be that of the Chair; second, as to the admissibility of the evidence of Ms Reid and Mr Drew; and third, whether the appellant had established the dominant purpose of the relevant documents was privileged. In each case, the appellant submits that I should find that the associate judge was in error.

The respondent contended that I should not find that relevant decisions of the associate judge were in error.

Accordingly, both parties agree that the appeal is in the nature of a re-hearing whereby the appellant must establish error on the part of the associate judge.

Despite their agreement, I believe it is appropriate to consider this issue further. As indicated below, however, I conclude that on the facts in this case the appellant must establish error on the part of the associate judge.

The relevant rules applicable to an appeal from an associate judge are as follows:

77.06 Appeals generally
Subject to section 17A of the Supreme Court Act 1986 and to Rule 16.5 of Chapter V of the Rules, an appeal from any judgment or order of an Associate Judge made under any Chapter of the Rules lies to the Trial Division constituted by a Judge of the Court, except in any case where an appeal lies to the Court of Appeal.
…
77.06.03 Contents of notice of appeal
(1) A notice of appeal shall state—
(a)whether the whole or part only and, if as to part, which part, of the judgment or order of the Associate Judge is the subject of the appeal; and
(b)specifically and concisely the grounds of appeal and the judgment or order sought in place of that from which the appeal is brought.

(2)A notice of appeal shall name each party or person upon whom it is proposed to serve the notice of appeal.
(3)A notice of appeal may be amended at any time by leave of a Judge of the Court.

…
77.06.9 Powers of Judge of the Court hearing appeal
(1)On an appeal under Rule 77.06, a Judge of the Court shall have all the powers of the Court constituted by an Associate Judge.
(2)On an appeal under Rule 77.06, a Judge of the Court shall have power to—
(a) draw inferences of fact; and
(b)give any judgment and make any order which ought to have been given or made; and
(c)make any further or other order as the case may require.

(3)On an appeal under Rule 77.06, a Judge of the Court shall have power to receive further evidence upon questions of fact, whether by oral examination in court, by affidavit, or by deposition taken before an examiner.
(4)The powers of a Judge of the Court under this Rule may be exercised notwithstanding—
(a)that no notice of appeal has been given in respect of any particular part of the judgment or order of the Associate Judge which is the subject of appeal under Rule 77.06 or by any particular party to the proceeding before the Associate Judge; or
(b)that any ground for allowing the appeal or for affirming or varying the judgment or order of the Associate Judge is not specified in the notice of appeal.

Before turning to the relevant authorities on the nature of an appeal from the decision of an associate judge, it is convenient to summarise some observations that the courts have made about appeals. The nature of an appeal is always a question of statutory construction, and the categories of different appeals are not closed.[25] Nevertheless, there are three main categories of appeal: firstly, appeals in the strict sense, where the issue is whether the judgment at first instance was right on the material before the court at first instance; second, appeals by rehearing, which I will turn to in a moment; and third, appeals by way of hearing de novo, where the appellate court considers the matter afresh.[26]
[25]Dwyer v Calco (2008) 234 CLR 124, 128 [2]. See also Nigro v Secretary, Department of Justice (2013) 304 ALR 535, [29]—[30].
[26]Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194, [12]; Dwyer v Calco (2008) 234 CLR 124, [2], quoting Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, 619—622.

To say that an appeal is one by way of rehearing is not the end of the matter. As Gleeson CJ, Gaudron and Hayne JJ observed in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission,[27] an appeal by way of rehearing may be limited to the evidence that was before the court at first instance, or alternatively may allow for further evidence to be put before the appellate court.[28] Additionally, their Honours observed that although it may be that further evidence can be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance. Ordinarily, if no further evidence has been admitted and there has been no relevant change in the law, appellate power is exercisable only where the appellant can establish some legal, factual or discretionary error in the decision at first instance.
[27](2000) 203 CLR 194, [12]—[14] (Coal and Allied).
[28]See again Dwyer v Calco (2008) 234 CLR 124, [2], quoting Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, 619-622.

The nature of an appeal from an associate judge under the new r 77.06 has been examined in several cases in this Court.[29]
[29]See also Neely v Southern Cross Feeds Pty Ltd [2013] VSC 238; Applebee v Monash City Council [2013] VSC 481; Oswal v Carson [2013] VSC 355; Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] VSC 120; Glezer v Deals.com.au [2014] VSC 202.

In Re Ascot Vale Self-Storage Centre Pty Ltd (in liquidation),[30] I considered the nature of the appeal in the context of an application to admit fresh evidence. It was submitted that an appeal from an associate judge was not the same as a rehearing in the Court of Appeal but fell somewhere between an appeal de novo and an appeal to the Court of Appeal from a single judge. I held:

In so far as it is necessary for me to decide this point in the context of an application to tender fresh evidence, the nature of an appeal to a Judge of the Trial Division from a decision of an Associate Judge is not of a nature that falls between an appeal to the Court of Appeal and a rehearing de novo. In my opinion, on an appeal from an Associate Judge to a Judge of the Trial Division, fresh evidence may be admitted in the limited circumstances as described in McDonald v McDonald, as it would be on an appeal to the Court of Appeal.[31]

[30][2014] VSC 75 (Ascot Vale).

[31]Ibid, [16].

In Mainstream Construction (Aust) Pty Ltd v Carr Electrical Pty Ltd,[32] Cavanough J heard an appeal from a decision of an associate judge where the appellant’s proceedings had essentially been summarily dismissed for failure to comply with a series of directions made by an associate judge in pre-trial case management directions. The respondent to the appeal submitted, by reference to Coal and Allied, the proposition that it was necessary for the appellant to identify error in the judgment of the associate judge before the appeal before His Honour could be allowed. His Honour noted that the prior decisions of the nature of an appeal under the new rules had not considered an appeal from an interlocutory decision.
[32][2014] VSC 317 (Mainstream). It should be noted this judgment was delivered within months of this judgment, on 2 July 2014.

His Honour held, that in the case of an appeal on an interlocutory order, it was not necessary in all cases to establish an error on behalf of the associate judge under the new rules.[33]
[33]Mainstream, [53].

His Honour cited the decision of Freeman v Rabinov,[34] a case from 1981, where the Full Court held, in relation to relevantly indistinguishable appeal rules, that a different approach may be applicable in relation to an interlocutory order of a single judge, or at least in relation to an interlocutory order of the kind that was under consideration in that case (namely, a self-executing order).[35] The approach taken in Freeman v Rabinov found that the operation of the relevant order made by the judge could be said to have ‘worked an injustice’ and was thus set aside.[36]
[34][1981] VR 539 (Freeman).
[35]Mainstream, [81].
[36]Freeman, 548.

His Honour accepted that in the case before him, where fresh evidence had been admitted, including evidence of ill health by the solicitor for the party in default, that the case was sufficiently similar to an appeal from a self-executing order to authorise allowing of the appeal without assigning error to the decision under appeal where, having regard to all of the circumstances (including new evidence put before him), it could be said that the order worked an injustice.[37]
[37]Mainstream, [83].

This judgment is of importance as it identifies a distinction between the approach that may be taken on an appeal from an interlocutory decision, such as the matter the subject to the appeal before me, and an appeal from a trial such as I heard in Ascot Vale. However, in the case before me, neither party sought to argue that an injustice had occurred of the kind addressed by Cavanough J, and a question on discovery is clearly different from an interlocutory order summarily dismissing a claim that may work an injustice.

In the case before me, the respondent sought to admit new evidence. The appellant did not object to the tender. As indicated above, the Court has the power under r 77.06.9(3) to receive further evidence upon questions of fact.

The new evidence

The new evidence goes to the issue of whether or not it was open to the associate judge to infer, as he did in paragraph 127(d) of his judgment, that ‘an inference is open that there were other non-privileged purposes of the sub-committee for the production of the documents’.

The basis for that inference was supported by his Honour’s findings in paragraphs 27(e) (and perhaps (f)) (as referred to above), where the associate judge found that there was no evidence that any non-privileged investigation or analysis had previously been conducted by the appellant in relation to the alleged failure of the appellant’s assets and any relationship to the Murrindindi fire, in the ordinary course of its business. His Honour inferred from the nature of the appellant’s business that in those circumstances the appellant would, therefore, probably undertake such investigations or analysis to determine whether the fires were caused by a failure of the appellant’s assets.

The appellant concedes that the first sentence of paragraph 127(e) of the associate judge’s reasons is accurate ‘in a limited way’. The first sentence provides:

There is no evidence that any non-privileged investigation or analysis was conducted by SPI in relation to the alleged failure of its assets and any relationship to the Murrindindi fire in the ordinary course of its business, whether for the purposes of providing information to regulators or insurers, or other internal investigation or reporting requirements.

Returning to the judgment, the associate judge then observed that the plaintiff noted that discovery was not yet complete and if the defendant was aware of any such documents existing, this could be clarified to the Court. His Honour then referred to the requests by the respondent for more information about any non-privileged investigation that had been undertaken, and said that the plaintiff had not received a response to these requests. The associate judge referred to several letters to that effect from the defendant to the plaintiff. The learned judge then said that the defendant had offered no evidence as to any other investigation, notwithstanding the invitation from the plaintiff to do so.

Discovery has now been completed, unlike when the associate justice heard the application. The new evidence is a letter of 23 June 2014 from the appellant’s solicitors to the respondent’s solicitors concerning discovery. The respondent submits that the letter establishes that no non-privileged investigation or analysis had been conducted by the appellant in relation to the alleged failure of its assets and any relationship to the Murrindindi fire in the ordinary course of its business, whether for the purposes of providing information to regulators or insurers, or other internal investigation or reporting requirements. This was not disputed by the appellant.

The associate judge had merely referred to the absence of evidence on that issue and that the appellant, although invited to produce the evidence, had not done so. The associate judge had not found as a fact there was no such investigation or analysis.

Does the new evidence alter the nature of the appeal? In my opinion, it has little or no effect on the appeal. As explained below, my decision would be the same whether or not the new evidence was tendered. The further evidence does not make any difference to my decision that it was open to the learned judge to conclude that there were other non-privileged purposes for producing the technical analysis documents.

Accordingly, in my opinion, the appeal should proceed on the basis that this Court can only exercise its appellate powers if satisfied that there was error on the part of the primary decision-maker. As noted above, neither party disagrees with this approach and both submitted that I should proceed on this basis. Neither party submitted that, given the appeal was from an interlocutory order, any different approach should be taken. Nor for that matter, in this case, do I think so.

Perry v Powercor

Before considering the issues at hand on appeal, it is useful to set out the facts and findings in the case of Powercor. In this case, the court dealt with a similar issue to those that arises in this appeal.

Powercor was also the subject of litigation arising out of the Black Saturday fires. In particular, it was alleged a faulty Powercor power line that passed over farming property started the bushfire at Coleraine. Powercor had discovered several reports on the cause of the fire at Coleraine and claimed legal privilege for them. Powercor claimed that its dominant purpose in obtaining those reports was to allow its in-house solicitor to provide it with legal advice and to use the reports in anticipated legal proceedings against it. The plaintiff sought inspection of the reports.

The court found that Powercor had failed to adequately explain the reasons why it had obtained the reports, in view of the many different purposes for which it needed the reports. It was held that Powercor had not satisfied the Court that the dominant purpose for which it obtained these reports was privileged.

The reports were commissioned by the in-house solicitor for Powercor. The solicitor, Ms Rands, formed the view immediately on the day after the fire started that it was inevitable litigation against Powercor would follow. Ms Rands said that she discussed the legal implications of the fire with Powercor’s CEO. She said that he asked her to arrange for an investigation into the fire so that she could give him legal advice on Powercor’s overall exposure, given the allegations that the source of ignition of the fires had involved Powercor’s assets. It was as a result of this instruction that she commissioned the disputed reports.

Evidence was led by the plaintiff that there were many purposes for which Powercor required a report on the cause of the fire and the role that Powercor electrical assets played in causing the fire. In particular, Powercor was obliged by law to give reports to the regulator, Energy Safe Victoria, with full details of the fire and the causes of the fire. Powercor may have also needed the information garnered by the reports to assist the Royal Commission into the bush fires. Further, it was contended that Powercor needed to know what had happened as part of its normal course of business for maintenance and repair purposes, informing its insurers and informing the board of directors. It was also submitted that the directors and officers of Powercor needed to know of the involvement of Powercor in starting the fire as part of their statutory obligations under the Corporations Act to act with reasonable care and diligence.

Powercor failed to call the CEO who gave the instruction to Ms Rands to commission the reports. In my judgment, I said as follows about this failure:

The failure of the CEO to give evidence was not explained. I assume that the CEO at the time was Mr Shane Breheny who also prepared a witness statement for the Royal Commission. There was no suggestion that he was not available to give evidence by affidavit of otherwise. He instructed Ms Rands to carry out the investigation which was likely to involve her obtaining information from experts. I can only infer what his purposes were in obtaining the report. His failure to give evidence in circumstances where it is central to the establishment of the privilege does give rise to the inference that his evidence would not have assisted Powercor’s claim to privilege. As has been discussed, the plaintiffs seek to draw the inferences from the evidence that Powercor needed the information for multiple purposes and that legal advice from Ms Rands was not the dominant purpose. As the CEO failed to give evidence to rebut those inferences, the court is entitled to more readily draw those inferences.
I find that there were multiple purposes for which the information in the reports were to be used. I accept an important one was to give legal advice to Powercor and to use it in the anticipated legal proceedings in giving privileged advice about the Royal Commission. Nevertheless, Powercor bears the onus of establishing that the privileged purpose was the dominant purpose.
I find that Powercor has not done that. Powercor lead no evidence on its internal procedures that would have required or made use of the information in the reports. The Court can only imply that the requirement for the information would have been legally necessary and important to the operations of Powercor’s business.
Powercor failed to produce evidence of the CEO or explain the requirements Powercor had for the information other than for legal advice. It failed to explain its legal obligations of reporting under the Electricity Safety Act 1998, WorkCover, the CoronersAct 1985 or the duty of its officers under the Corporations Act 2001 or otherwise at common law to have the information in the reports to carry out their duties whether legal or otherwise. Powercor failed to explain the variety of uses to which the information would be put and why it was needed.
Having regard merely to the duties placed on officers under the Corporations Act 2001 and in particular their duty to exercise their powers with care and diligence, the officers of Powercor were probably bound to find out what happened and the role Powercor’s assets played in the Coleraine fire so that they could take proper steps to carry out their reporting obligations, make claims on their insurers, attend to maintenance issues, and attend to a myriad of other matters in the interests of Powercor. As I have said, Powercor has led no evidence on these matters to establish the privilege claim.
Accordingly, I am not satisfied that the dominant purpose Powercor had in obtaining the disputed reports was for privileged purposes. I find that the reports are not protected by legal professional privilege.[38]

[38]Ibid, [72]—[77] (citations omitted).

An application for leave to appeal by Powercor to the Court of Appeal was refused in Powercor Australia Ltd v Perry.[39]On the application, the applicant contended that it was in error to treat the purpose of the CEO as a factor of relevance. Powercor contended that as the reports were commissioned by Ms Rands, an in-house solicitor, the relevant purpose was hers in commissioning the report. This submission was rejected. The Court held that the relevant purpose was the purpose of the corporation.
[39](2011) 33 VR 548.

The applicant submitted that there was no occasion for the applicant to explain or contradict any issue concerning Ms Rands’ evidence. The Court said in response:

That argument takes the matter no further. Granted, there was no dispute that Ms Rands’ purpose in commissioning the reports was as she stated. But, as has been observed, because the purpose in question was the purpose of a corporation, it was necessary to understand not just Ms Rands’ subjective purpose, but also, and in this case more importantly, the objectives of the person at the head of the corporation.
Counsel for the applicant submitted that, even if that were so, the only evidence of the purpose of the CEO was the evidence of Ms Rands that the CEO told her to commission the Rands Reports so that she could give him legal advice. Counsel argued that the CEO’s direction to Ms Rands was, in effect, a contemporaneous statement of the CEO’s state of mind and thus probative of his purpose.
The difficulty with that submission, however, is that, although the CEO’s statement was admissible as evidence of his state of mind, it was not the only evidence on the point. There was as well a very significant body of evidence, of a multiplicity of purposes to which the Rands Reports were apt to be applied, from which it was open to infer that the CEO’s objective in directing Ms Rands to commission the Rands Reports included not just legal advice but also obtaining information for those other purposes. It is true that the CEO did not disclose any such other purpose to Ms Rands. But that was not determinative of the issue. What was determinative was what he had in mind; and, for whatever reason, he was not called to give evidence about it. Well might one suppose, therefore, that whatever he might have been able to say on the subject would not have assisted the applicant’s cause.
…
At the risk of repetition, the short answer to it is that, where the dominant purpose of the controlling mind of a corporation is in issue, it can ordinarily be established with tolerable clarity by that person giving evidence. If, without good reason, he or she chooses not to do so, rational inferences are open to be drawn.[40]

[40]Powercor Australia Ltd v Perry (2011) 33 VR 548, [24]—[28] (citations omitted; emphasis added).

Both the decision in Powercor and the Court of Appeal’s subsequent refusal of the application for leave to appeal from this decision are particularly useful in the present case, given the similarities in fact and issues at law. I now turn to the three issues raised in the appeal.

Issue 1: Whose purpose?

The first issue raises the question of whether the associate judge erred in concluding (as the appellant contends) that the relevant purpose was the purpose of the Chair of the sub-committee (rather than the sub-committee itself).

Before the associate judge, the parties agreed that the purpose of the author of the documents was not the relevant purpose. The appellant submits that both the appellant and the respondent agreed that it was necessary to look to the circumstances in which the document was commissioned.

The appellant submits that the divide between the adversaries was that the respondent contended that the relevant purpose was that of the Chair of the sub-committee, whereas the appellant contended that the relevant purpose was that of the sub-committee itself. I do not accept this submission.

The associate judge found that he must look at the purpose of the corporation when assessing the relevant purpose.[41] He did not fall into error on the legal test. To that end he found, however, that ‘[t]he request that seemed operative for present purposes is the request of the Chair of the [sub-committee], which I have held to be inadmissible’.[42] This suggests the associate judge found that, in the absence of any other evidence of the sub-committee’s purpose, he took the request by the Chair of the sub-committee to be evidence of the sub-committee’s purpose.[43]
[41]Liesfield, [20].
[42]Liesfield, [126].
[43]This was in line with the submission of the respondent, who accepted that the relevant purpose is the corporate purpose but submitted that in this instance the Chair was the source of the corporate purpose.

The evidence disclosed that the sub-committee meeting held on 12 July 2011 was attended by at least six people, four of whom were members of the sub-committee and two of whom were not members of the sub-committee. The sub-committee members identified as attending were the Chair; Susan Taylor, the appellant’s General Counsel; Norman Drew, General Manager of Network Development; and Dhammika Adihetty (as proxy for Charles Popple, General Manager of Network Strategy). The non-members who attended were Karena Reid, Legal Manager, and Ruth Overington, solicitor from Freehills.

Save for this evidence, there was no evidence of who comprised the sub-committee and which other members of the sub-committee were in attendance on 12 July 2011. There was no evidence as to whether or not any members of the sub-committee were board members or executive board members. There was no evidence of any agenda being prepared for the meeting. There was no evidence of any discussions that took place at the meeting save for the report on the police meeting and the Chair’s direction. There was no evidence of any resolutions passed or considered at the meeting.

There was no evidence led as to whether or not the sub-committee had a written charter, nor on its reporting obligations to the board. Due to the legal obligations imposed on each of the directors on the board for the actions of the sub-committee, it would be reasonable to infer that there may have been clear and well-defined reporting obligations from the sub-committee to the board of directors.[44] There was no evidence whether or not it was the responsibility of the sub-committee to report to the board, or any other person in the company, on whether or not the appellant’s electrical assets may have been the cause of the fire at Murrindindi (if the sub-committee by its analysis discovered that fact).
[44]Corporations Act, ss 189, 190 and 198D.

There was no evidence of the management structure of the appellant. There was no evidence of whether there was any other sub-committee of the board or other body of the appellant that may have been responsible for the safety of the appellant’s electrical assets, and which may have needed to be informed if the analysis commissioned by the sub-committee disclosed safety issues that the appellant needed to address.

There was no evidence before the associate judge of how the sub-committee made decisions. For example, the associate judge was not informed whether decisions were reached by resolution by the majority of members of the sub-committee, or whether by discussion and then the Chair making any decision that had to be made.

There was no evidence of any minutes taken at the meeting or any notes taken by any of the participants. There was no evidence as to whether any note was made of the direction given by the Chair.

In those circumstances, I consider that as the appellant bore the onus of establishing the state of mind of the sub-committee, it was open for the associate judge to conclude that appellant had established no more than that the state of mind (or purpose) of the sub-committee could be inferred from the evidence of what the Chair said in the context of the meeting and in the context the meeting was held.

In my opinion, the observation that the Chair’s purpose was the critical driver does not mean that the learned associate judge found that the Chair’s purpose was the relevant purpose rather than the sub-committee’s purpose. As discussed, in establishing the sub-committee’s intention, the appellant only led evidence of what the Chair said in the context of the meeting and the context in which the meeting was held. It was only on this evidence the associate judge could ascertain the critical driver.

In my view, the associate judge correctly identified that he must look at the purpose of the corporation when assessing the relevant purpose, and, on the limited evidence led by the appellant, applied the correct test. I do not consider that the associate judge fell into error.

Issue 2: Admission of Evidence

This issue raises the question of whether the associate judge erred in excluding evidence by virtue of it comprising inadmissible hearsay.

Ms Reid and Mr Drew provide evidence in their affidavits of the direction or request made by the Chair. This evidence was held to be inadmissible by the associate judge. The appellant contends that in doing so, the associate judge erred.

There were no objections to the evidence of Mr Drew. The evidence that Ms Reid gave as to the direction was objected to on the ground that it was an expert lay opinion but did not satisfy the exception in respect of lay opinions under s 78 of the Evidence Act. This objection was not upheld by the associate judge. The associate judge, on the other hand, held that the evidence of Ms Reid on the direction was inadmissible under s 75 of the Evidence Act. This section provides an exception to the hearsay rule in interlocutory proceedings if the party who adduces it also adduces evidence of its source.

The appellant says that no such objection under s 75 was made in the respondent’s written submissions or at the hearing. The respondent does not contend otherwise.

The appellant relies on the consequences of the affidavits being read and thus being admitted into evidence subject only to the objection under s 78. As that objection was not upheld, for the following reasons, I accept that the evidence in the affidavits was admitted into evidence. I also accept that the conclusion of the associate judge in excluding the evidence under s 75 - that was not raised at the hearing - was in error.

The appellant refers to several authorities that support the proposition that evidence admitted without objection is admissible for all purposes, and that if a party wishes to limit the use to which a document may be put, then objection must be taken.[45] The respondent did not take issue with any of them.
[45]Jones v Sutherland Shire Council [1979] 2 NSWLR 206, 212 (per Hutley JA), 214—219 (Samuels JA); Technilock (Australia) Pty Ltd v Mondami [1999] SASC 320, [116] (Olsson, Duggan and Mullighan JJ); R v LRG [2006] 16 VR 89, [13] (Callaway JA, with whom Vincent JA and Ashley JA agreed); Robert Bax & Associates v Cavenham Pty Ltd [2013] 1 Qd R 476, [31] and following (Muir JA).

The appellant says that one reason why objection must be taken is that the party adducing that evidence may be able to correct the defect. If no objection is taken, then the party tending the evidence is denied the opportunity to correct the defect. In Smith v Bagias,[46] Barwick CJ said that ‘[i]f the objection were taken, it was, as it were, curable’.
[46](1978) 21 ALR 435, 441 (per Barwick CJ).

There was no real objection to this ground of appeal before me. I am satisfied that the associate judge did err in excluding the evidence of Ms Reid and Mr Drew as to the direction or request made by the Chair at the meeting of the sub-committee.

Issue 3: Dominant Purpose

This ground raises the issue of whether the associate judge erred in finding that the appellant had not established that the dominant purpose of the preparation of the technical analysis documents was privileged as the associate judge erred in concluding that there were non-privileged purposes for the production of the documents.

Before addressing this issue, it is appropriate to consider relevant authorities relating to the establishment of dominant purpose.

The respondent has accurately summarised the test for assessing the evidence of ‘dominant purpose’ in its submissions:

Central to establishing a claim for privilege is the requirement for “focused and specific evidence” in respect of each document over which a claim for privilege is asserted. The party claiming privilege bears the onus of establishing the requisite dominant purpose. Claims of privilege to be upheld require careful scrutiny.

The test for establishing dominant purpose is summarised in Barnes v Commissioner of Taxation as follows:

The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallace, Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (per Lockhart J); Grant (per Stephen, Mason and Murphy JJ). Where possible the court should be assisted by evidence of the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document. The fact that generalised evidence is not challenged in cross-examination does not mean that such evidence must be accepted, particularly when it is as manifestly inadequate as it is in this case. As in Kennedy, mere general assertions of the purpose of creation of the documents are insufficient to discharge this onus. Even though in that case some evidence as to the purpose of particular records was adduced, Allsop J at [168] considered that the onus had not been discharged because the evidence did not permit a conclusion to be drawn as to the dominant purpose of the creation of any particular document or entry in a document. Simply to show that one purpose for creation of the document was to obtain legal advice or assistance is not good enough.[47]

[47] Barnes v Commissioner of Taxation (2007) 242 ALR 601, [18] (emphasis added; citations omitted).

The respondent referred to the emphasised passage and contrasted what was required with the evidence produced by the appellant.

The respondent also relies on the following dictum in AWB Ltd v Cole (No 5) of Young J, where his Honour set out the general principles relating to privilege:

The existence of legal professional privilege is not established merely by the use of verbal formula: Grant v Downs per Stephen, Mason and Murphy JJ. Nor is a claim of privilege established by mere assertion that privilege applies to particular communications or that communications are undertaken for the purpose of obtaining or giving ‘legal advice’: National Crime Authority v S per Lockhart J; Candacal Pty Ltd v Industry Research & Development Board (‘Candacal’); Seven Network Limited v News Limited. If assertions of that kind are received in evidence in support of the privilege claim, their conclusionary nature can leave unclear what advice was really being sought. There will be cases in which a claim of privilege will not be sustainable in the absence of evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed: Kennedy v Wallace (‘Kennedy v Wallace’) per Black CJ and Emmett J and per Allsop J; see also Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (No 6).[48]

[48]AWB Ltd v Cole (No 5) (2006) 234 ALR 651, [44] (citations omitted).

The respondent further relies on the dictum of Beach J in Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4), where his Honour said:

[T]he applicants bear the onus of establishing the claims, including each factual element necessary to establish the requisite dominant purpose. In that respect, focused and specific evidence is required in respect of each communication, rather than mere generalised assertion let alone opaque and repetitious verbal formulae. There should be sufficient evidence which proves directly or by inference that the dominant purpose for the communication was for the relevant client to be given or to obtain legal advice. The communication also has to be confidential.[49]

[49][2014] FCA 796, [29].; see also Australian Crime Commission v Stewart (2012) 286 ALR 713, [69] and AWB Ltd v Cole (2006) 232 ALR 743.

In reaching his decision on finding that there were other non-privileged purposes for the production of the documents, the associate judge placed some reliance on Jones v Dunkel,[50] and the failure of the appellant to lead evidence from the Chair or any member of the sub-committee. It is useful to consider the extent to which the principles of Jones v Dunkel bear on the appellant’s burden of establishing legal professional privilege.
[50](1959) 101 CLR 298 (ASIC v Hellicar).

The principles were recently examined by the High Court in Australian Securities and Investments Commission v Hellicar.[51]ASIC brought civil penalty proceedings against several directors of the parent company of the James Hardie group of companies. The company had established a foundation purportedly to meet the asbestos claims of former employees and customers of its products. The directors sent an announcement to the ASX that contained misleading statements about the sufficiency of the foundation to meet the payments on the asbestos claims against the group.
[51](2012) 247 CLR 345 (ASIC v Hellicar).

ASIC alleged that the directors had approved a draft statement to the ASX in a board meeting that was not materially different to the one sent to the ASX. ASIC alleged that several directors had breached their duties to the company by not advising the board that the announcement was misleading. ASIC tendered the minutes of the meeting as part of their case to establish that the board approved of the announcement. The directors claimed that the minutes recording the approval of the announcement were false. The trial judge found that the board had approved the announcement. The Court of Appeal allowed an appeal on the basis that ASIC owed a duty of fairness to the defendants and breached that duty by not calling the solicitor who prepared the board minutes. The Court of Appeal had found that by failing to do so, the cogency of ASIC’s case was diminished and was not to have been proven.

The High Court allowed the appeal, finding that the failure to call the solicitor raised no inference that he would have given evidence adverse to ASIC’s case. The plurality, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, said:

The Court of Appeal concluded that ASIC's failure to call Mr Robb had "consequences for the cogency of ASIC's case". By this the Court of Appeal meant that the cogency of ASIC's proof was diminished.
Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles which do not permit the course taken by the Court of Appeal of discounting the cogency of the evidence tendered by ASIC.
Lord Mansfield's dictum in Blatch v Archer that "[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted" is not to be understood as countenancing any departure from any of these rules. Indeed, in Blatch v Archer itself, Lord Mansfield concluded that the maxim was not engaged for "it would have been very improper to have called" the person whose account of events was not available to the court.
This Court's decision in Jones v Dunkel is a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used… [T]he Court held "that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence".
The Court of Appeal concluded that ASIC's not calling Mr Robb founded an inference that his evidence "would not have assisted the ASIC case". There was no basis for drawing any inference that Mr Robb would have given evidence adverse to ASIC's case…[52]

[52](2012) 247 CLR 345, [164]—[168] (citations omitted).

Heydon J, who also agreed that the Court of Appeal erred, cited some further authorities, set out below, on the adverse consequences that may befall a party that does not call available evidence.

In G v H, Brennan and McHugh JJ stated:

When a court is deciding whether a party on whom rests the burden of proving an issue on the balance of probabilities has discharged that burden, regard must be had to that party's ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce available evidence in response.[53]

[53](1994) 181 CLR 387 at 391—392.

In Ho v Powell, Hodgson JA stated:

In deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision.
…
In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so.[54]

[54](2001) 51 NSWLR 572, [14]—[15].

In Shalhoub v Buchanan, Campbell J stated:

Failure of a party who bears an onus of proof to call an available witness who could cast light on some matter in dispute can be taken into account in deciding whether that onus is discharged, in circumstances where such evidence as has been called does not itself clearly discharge the onus. This is an application of Lord Mansfield's maxim.[55]

[55][2004] NSWSC 99, [71]. This was followed in Australian Securities and Investments Commission v Rich (2009) 75 ACSR 1, [440].

In Whitlam v Australian Securities and Investments Commission, Hodgson, Ipp and Tobias JJA stated:

The principle in Briginshaw calls attention to the requirement that a party seeking a finding of serious misconduct produce adequate material to enable a court to reach a comfortable satisfaction on such a serious matter. Although this is not the same as the obligation of the Crown to call available evidence in a criminal prosecution, we think it is fair to say that a person seeking such a finding does need to be diligent in calling available evidence, so that the court is not left to rely on uncertain inferences.[56]

[56](2003) 57 NSWLR 559, [119].

In Cook's Construction Pty Ltd v Brown, Hodgson JA stated, in an ex tempore judgment:

Where a party has to prove something and prima facie has available evidence that would directly deal with the question, a court will be very hesitant in drawing an inference in that party's favour from indirect and second-hand evidence, when the party doesn't call the direct evidence that prima facie it could have called, at least unless some explanation is given, or the circumstances themselves provide an explanation.[57]

[57](2004) 49 ACSR 62, [42].

This last statement has particular relevance in this case, where the appellant relied on hearsay evidence, failed to call the Chair and two other identified members of the sub-committee to give evidence, and failed to lead evidence from Mr Drew on the purpose of the sub-committee for the Chair’s request.

Reference can also be made to the observations of Gleeson CJ in Swain v Waverley Municipal Council.[58] In this case, the appellant had sued the council in negligence after injuring his neck on a sand bar when diving into the surf at Bondi Beach. The issue was whether the Council had been negligent in where it placed the flags indicating where it was safe to swim. There was no evidence led from anybody as to whether it would have been possible to move the flags so that the hazard was removed without compromising safety in other aspects.
[58](2004) 220 CLR 517.

The jury found in favour of the plaintiff. The Court of Appeal overturned the verdict. The plurality in the High Court allowed the appeal to the High Court. In addressing whether it was reasonably open to the jury to reach the conclusion that it did, the Chief Justice referred to Lord Mansfield’s dictum in Blatch v Archer,[59] quoted above in ASIC v Hellicar, and observed that the jury may have thought that it was up to the council (rather than the plaintiff) to tell them how difficult it would have been to move the flags to avoid the sand bank.[60] By doing so, the Chief Justice recognised the consequences that a failure to call evidence may have in the fact finding process, whether by a judge or a jury.
[59](1774) 1 Cowp 63; 98 ER 969 (Blatch v Archer).
[60](2004) 220 CLR 517, 525—526.

Two or more purposes

I now turn to the specific error alleged by the appellant: that the associate judge found other non-privileged purposes for the production of the technical analysis documents.

Where an accident occurs resulting in injury or death and a corporation obtains a report on the accident, there will often be two or more purposes to that report. Often it will be claimed that the report is privileged in that it was purportedly produced to obtain legal advice about the corporation’s legal position in regard to the accident. In those circumstances, where corporations have duties of care and responsibilities, and its officers have statutory duties to exercise care and skill,[61] it is almost invariably the case that the corporation also requires the report to ascertain what happened and to ensure that steps are taken to avoid it happing again. The information may also be needed to inform a regulator, insurers, the coroner, the police, to comply with health and safety rules, and a myriad of other operational requirements of the company.
[61]Corporations Act, s 180.

It is sufficient to refer to two authorities where the need of a corporation to acquire information relating to a death or injury that it may have caused was canvassed in the context of a claim of legal privilege. The respondent referred to the High Court case of Grant v Downs,[62] where the court considered legal privilege at length in the context of a document used for multiple purposes. In this case, a patient in psychiatric care was left alone in his room, leading to his escape and subsequent death. A claim was brought against the hospital in negligence. The defendant claimed legal privilege over a number of documents.
[62](1976) 135 CLR 674 (Grant v Downs).

In evidence, an officer stated that the documents were part of a class of reports required to be prepared whenever a patient suffered injuries in the hospital’s care. One of the material purposes of these reports was in case the hospital took internal disciplinary action, as well as for coronial or legal proceedings arising out of the incident. The issue before Barwick CJ and Stephen, Mason, Jacobs and Murphy JJ was whether the document was legally privileged despite the fact it may serve other purposes.

In their joint judgment, Stephen, Mason and Murphy JJ alluded to the caution with which the question of dominant purpose should be approached where a corporation is seeking to invoke legal privilege following the death of persons to which it owed a duty:

It is difficult to see why the principle which lies behind legal professional privilege should justify its extension to material obtained by a corporation from its agents with a double purpose. The second purpose, that of arming central management of the corporation with actual knowledge of what its agents have done, is quite unconnected with legal professional privilege; it is but a manifestation of the need of a corporation to acquire in actuality the knowledge that it is always deemed to possess and which lies initially in the minds of its agents. It cannot itself be privileged; quite the contrary. If the party were a natural person or, more accurately, an individual not acting through servants or agents, it would be precisely that knowledge which would be discoverable and the party cannot be better off by being a corporation. The fact that a second purpose may also be being served, a purpose to which the privilege would extend, does not cover with that privilege information which would otherwise be discoverable.[63]

[63](1976) 135 CLR 674, 687 (emphasis added).

The respondent placed reliance on the emphasised passage. These observations are still apposite even though the sole purpose test which their Honours adopted in the case has been replaced with the dominant purpose test.

In the House of Lords decision Waugh v British Railways Board,[64] the plaintiff appealed on the question of whether a brief report made as a matter of practice after a fatal railway accident killing the plaintiff’s husband, later incorporated into a joint inquiry report, was legally privileged. The report was produced for the dual purposes of ‘railway operation and safety purposes and the purpose of obtaining legal advice in anticipation of litigation, the first being more immediate than the second, but both being described as of equal rank or weight’.[65] The House of Lords was called on to consider whether the privileged purpose should be the sole or dominant purpose.
[64][1980] AC 521.
[65]Ibid, 531.

In his judgment and in considering the interests at play in assessing whether litigation was the dominant purpose, Lord Wilberforce stated:

It is clear that the due administration of justice strongly requires disclosure and production of this report: it was contemporary; it contained statements by witnesses on the spot; it would be not merely relevant evidence, but almost certainly the best evidence as to the cause of the accident. If one accepts that this important public interest can be overridden in order that the defendant may properly prepare his case, how close must the connection be between the preparation of the document and the anticipation of litigation? On principle I would think that the purpose of preparing for litigation ought to be either the sole purpose or at least the dominant purpose of it: to carry the protection further into cases where that purpose was secondary or equal with another purpose would seem excessive, and unnecessary in the interest of encouraging truthful revelation. At the lowest such desirability of protection as much exist in such cases is not strong enough to outweigh the need for relevant documents to be made available. [66]

[66]Ibid, 531—532.

Lord Wilberforce, in essence, makes the argument that an important public interest in the due administration of justice existed in the disclosure of the document, and for the claim of legal privilege to succeed it had to be more than a secondary or equal purpose: it has to be at least the dominant purpose.

Finally, in his judgment and in finding litigation was not the dominant purpose, Lord Edmund-Davies states:

[T]he claims of humanity must surely make the dominant purpose of any report upon an accident (particularly where personal injuries have been sustained) that of discovering what happened and why it happened, so that measures to prevent its reoccurrence can be discussed and, if possible, devised.[67]

[67]Ibid, 544.

This statement is strong reminder of the duties imposed on corporations to investigate accidents causing injury in which they are involved, in order to find out what happened for operational reasons – particularly where a company is claiming legal privilege over documents that explore circumstances relating to the death or injury of persons.

The associate judge’s finding on purposes

The associate judge relied on inferences that he was able to draw from the evidence when considering the purpose of the appellant in commissioning the technical analysis documents. His Honour found that if he was wrong in the conclusion that the evidence of Ms Reid and Mr Drew was inadmissible, the ‘reasons advanced by the plaintiff that there were other purposes are persuasive and lead me to conclude that SPI has failed to discharge its onus of establishing that the dominant purpose of the preparation of the Technical Advice Documents was privileged…’[68]
[68]Liesfield, [127].

Following this he set out that grounds (a) to (f) that I set out above at [55]. It is important to read them together, as they are all relevant to the inferences that his Honour drew in paragraphs (d) and (f) as follows:

(d)Although there is no evidence of any other business or operational purpose for the preparation of the documents, given the general and somewhat vague evidence on the issue of purpose, an inference is open that there were other non-privileged purposes for the production of the documents;

…
(f)It is reasonable to infer from the nature of the business of SPI as a distributor of electricity and from the preceding Royal Commission (which I was told did not investigate the Murrindindi fires) and the very significant damage caused generally by the Black Saturday fires, that SPI would undertake investigations or analyses to determine whether the fires were caused by a failure of SPI’s assets and for that purpose to have a proper understanding of those assets. As the plaintiff submitted, it is difficult to accept that a sophisticated and responsible organisation such as SPI would not have in place procedures for investigating and responding to any faults in their assets, so that management is armed with knowledge of what occurred.[69]

[69]Ibid (my emphasis) (citations omitted).

For the reasons explained above in discussing Jones v Dunkel, the failure of the appellant to call any members of the committee, including the Chair, enabled the associate judge to more readily draw these inferences. His Honour was also able to infer that the evidence of the committee members would not have assisted the appellant’s case. On the other hand, he was not able to – and he did not – draw an inference that their evidence would have been adverse to the appellant’s case. The failure of the appellant to call evidence available to it was particularly relevant to whether or not the Court was satisfied that the appellant had met the requisite burden of proof.

Did the associate judge err on dominant purpose?

As indicated above, the associate judge found that there were purposes other than privileged purposes for producing the technical analysis documents. The appellant contends that he erred in doing so and thus erred in finding that the appellant had not satisfied him that the dominant purpose for producing the documents was privileged.

For the reasons that follow, I find it was open to the associate judge to find that there were other non-privileged purposes for the production of the technical analysis documents and thus that the appellant had not discharged its burden in establishing that the dominant purpose for which the documents were produced was for privileged purposes.

As indicated above, there was no suggestion by the appellant that if it did have another non-privileged purpose or purposes for producing the documents, the associate judge erred in failing to find that the appellant had established that the privileged purpose, rather than the non-privileged purpose or purposes, was the dominant purpose. No doubt this was dictated by the fact that the appellant’s case was that there was only one purpose and that accordingly no evidence was led by the appellant on the issue of whether the privileged purpose was the dominant purpose rather than the non-privileged purpose or purposes.

The appellant would have the Court infer that the reason espoused by the Chair according to Ms Reid (but not by Mr Drew) disclosed the Chair’s subjective purpose and evidenced the sub-committee’s dominant purpose. In my view, the evidence of Ms Reid and Mr Drew was vague and inconsistent and not ‘focused and specific’,[70] as the respondent submitted. The appellant did not provide evidence of the thought process behind, or the nature of, advice being sought in respect of the technical analysis documents.[71]
[70]Barnes v Commissioner of Taxation (2007) 242 ALR 601, [18].
[71]Ibid, [18]

In the face of such inadequate evidence, and the failure of the appellant to call other available evidence, in my opinion, it was open for the associate judge to find that the appellant had not satisfied him on the balance of probabilities that the dominant purpose for the production of the technical analysis documents was privileged.

Accepting, however, that Ms Reid’s evidence is an accurate recollection of what was said (and that Mr Drew’s was not), there are three factors that lead me to find that it was open to the associate judge to infer that the production of the technical analysis documents had other non-privileged purposes.

First there was no evidence that any non-privileged investigation or analysis had previously been conducted by the appellant in relation to the alleged failure of the appellant’s assets and any relationship to the Murrindindi fire, in the ordinary course of its business.

As alluded to in the cases cited above, when considering two or more purposes to investigations of this nature, it is necessary in large corporations, like the appellant, to undertake full investigations following an incident in which the corporation may be implicated especially incidents involving death and property damage.

It is likely, to say the least, that in the case of the Murrindindi fire, with its widespread loss of life and property and where no non-privileged investigation or analysis had been previously prepared, and where it was suggested that the appellant’s electrical assets may have been the cause of the fire, for an investigation and report to be produced for operational reasons.

Thus, in those circumstances, it was open for the associate judge to infer that a purpose of obtaining the technical analysis documents was for operational reasons to inform the appellant of what had happened and whether there were operational and statutory matters flowing from this information that the appellant and its directors and officers were obliged or needed to attend to.

The second factor is that the direction from the Chair clearly infers that the technical personnel of the appellant did not have an understanding (or a full understanding) of events around the time of the Murrindindi fire. According to Ms Reid, the purpose of the instruction was to ensure that the appellant’s technical personnel gained an understanding of events around the time of the Murrindindi fire. I consider it safe to assume that (in the context of the suggested police investigation) ‘events around the time of the Murrindindi fire’ meant the involvement – if any – of the appellant’s electrical assets in starting the fire. No evidence was led to suggest that it had any other meaning.

The direction therefore gives rise to the implication that technical personnel within the appellant did not already have an understanding (or a full understanding) of the events surrounding the Murrindindi fire. In these circumstances, it is reasonable to infer that the members of the sub-committee and the board may not have had such an understanding as well. Again, in a corporation such as the appellant, it is a wholly reasonable assumption that the appellant would need to undertake investigations and analysis to determine whether the fires were caused by a failure of the appellant’s assets for operational reasons, and inform its board and relevant officers of any relevant findings.

The third factor is the length of time it took the technical personnel to prepare the report. The evidence of Mr Bryant, one of the two men tasked with preparing the technical analysis documents, was that he worked on the report over a period of time from July through until mid-September 2011. The significant length of time with which it took the two men to prepare the technical analysis documents in question suggests that considerable work was required to understand and record the relevant events surrounding the Murrindindi fire, and that the technical analysis documents they prepared contained information not previously known to the appellant that would be required for operational purposes.

In my opinion, it was open for the associate judge to find, as he did, that there were other grounds for inferring that the technical analysis documents would have been brought into existence irrespective of obtaining legal advice. One cannot overlook the fact that none of the sub-committee members were called (or in Mr Drew’s case, gave evidence) to rebut the inference that the sub-committee had other purposes for which they were seeking the technical analysis documents. In those circumstances, the associate judge was more readily able to draw the inferences that he did. It also bears repeating the words of Lord Mansfield in Blatch v Archer, as cited in the High Court case of ASIC v Hellicar:

It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.[72]

[72](1774) 1 Cowp 63, 65; 98 ER 969 at 970.

In my opinion, it was open for the associate judge to conclude, as he did, that there were other non-privileged purposes and thus that the defendant had failed to discharge its onus of establishing that the dominant purpose of the preparation of the technical analysis documents was a privileged purpose.

The appellant contends that the associate judge erred in finding that some of the documents flowing from services it sought from Freehills may not have attracted legal professional privilege. In particular, the associate judge said there was evidence that a purpose of the preparation of the documents was for Freehills to represent the appellant in some unidentified way. The associate judge said that there was no anticipated litigation identified to which that representation could relate, so that the inference was open that the representation was in relation to the ongoing police investigation (the only matter identified in the affidavits that was then on foot). The associate judge said that was not, and was not contended by the appellant to be, a privileged purpose.

The appellant submits that, in substance, documents prepared to instruct solicitors to represent the company in any way in the context of the suggestion raised by the police inquiry would be privileged, citing the case of Three Rivers District Council v Governor and Company of the Bank of England (No 6).[73] I do not take issue with anything said in Three Rivers. The issue as to whether instructions provided by a client to a solicitor so that a solicitor could represent the client in those circumstances are privileged was not fully argued before me. In my view, it is not necessary for me to decide the appeal for me to define the limits of legal professional privilege in representing clients.
[73][2005] 1 AC 610 (Three Rivers), [114].

If his Honour did take into account an irrelevant or erroneous consideration in that the representation in relation to Freehills might not connote a privileged purpose, I do not consider the finding of fact that there were other non-privileged purposes to be in error. Nor do I find that this would have had any material affect on his finding that the appellant had failed to satisfy him that the privileged purpose was the dominant purpose.

It was for the appellant to establish that the dominant purpose was a privileged purpose. In circumstances where the evidence of the appellant did not disclose with precision what the documents analysed, the state of knowledge of the sub-committee at the time about the involvement (if any) of the appellant’s electrical assets in the start of the fire, or the state of knowledge of the board or other officers of the company of these matters; in my opinion, it was open to the associate judge to not be satisfied on the balance of probabilities that the dominant purpose of the sub-committee was a privileged purpose.

Although it was not necessary for me to decide this appeal, there is one further observation I wish to add. In my opinion, it was not necessary for the associate judge to find in this case that there were in fact other non-privileged purposes in order to establish that the appellant had not satisfied the burden of proving that its dominant purpose in producing the document was protected by legal professional privilege. In light of the onus the appellant bore, the appellant’s case that there was only a privileged purpose for the production of the documents and the grossly inadequate evidence led by the appellant, it was open to the associate judge to find that the appellant had not satisfied the onus even if one could only infer that there may have been other non-privileged purposes

In the Court of Appeal decision in Powercor, the Court refused the applicant leave to appeal from the decision at first instance that certain documents were not subject to legal professional privilege in circumstances similar to those currently before this Court. On the issue of the burden of proof, the Court of Appeal said:

We should say for completeness that we have spoken several times throughout these reasons in terms of inferences which it was open to the judge to draw. It has been convenient to speak in those terms because it serves to focus attention on the evidence that was available. It is important to keep in mind, however, that the judge determined the application on the basis that it was incumbent on the applicant to persuade him to draw the inference that the applicant’s dominant purpose in commissioning the reports was a privileged purpose, and that the applicant failed to do so. His Honour was correct to approach the matter in that fashion. It is also important to keep in mind the background circumstances against which the reports were commissioned.
We emphasise the point because, even if it were not open positively to infer that the applicant had a number of purposes in mind, of which the provision of legal advice was not dominant, it would by no means necessarily follow that the judge was in error in concluding that the applicant had failed to discharge the burden of establishing on the balance of probabilities that its dominant purpose was privileged.[74]

[74]Perry v Powercor (2011) 33 VR 548, [42]—[43].

The last paragraph is particularly important. In Powercor, findings were made that it was likely that the company had several non-privileged purposes in mind when it commissioned the disputed reports. In this last paragraph, the Court of Appeal accepts that even if it were not open positively to infer that the applicant had a number of non-privileged purposes in mind, it would not necessarily follow that the judge was in error in concluding that the applicant had failed to discharge the burden of establishing on the balance of probabilities that its dominant purpose was privileged.

For the above reasons, I would dismiss the appeal.

[2014] VSC 474

23 September 2014