BHP Billiton Olympic Dam Corporation Pty Ltd v Bluestone Apartments Pty Ltd - [2013] SASC 64

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
BHP BILLITON OLYMPIC DAM CORPORATION PTY LTD v BLUESTONE APARTMENTS PTY LTD
[2013] SASC 64
Judgment of The Honourable Justice Anderson
2 May 2013
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - CLIENT LEGAL PRIVILEGE
APPLICATION FOR DETERMINATION OF A PRELIMINARY ISSUE
The plaintiff in this matter seeks specific performance of the defendant's obligations under a Project Deed entered into between the parties - under the deed, the defendant agreed to undertake the design and development of residences and other infrastructure in accordance with the Deed - the plaintiff alleges that the defendant failed to adhere to certain timelines, eventually giving a termination notice under the Deed due to the alleged breaches - the defendant disputes the plaintiff's entitlement to specific performance and denies most of the allegations - in the course of the negotiations leading up to the signing of the Project Deed the plaintiff sought legal advice - the dispute in this interlocutory matter relates to these communications - the plaintiff claims legal professional privilege over a number of the documents containing these communucations - the defendant seeks production of these documents and alleges they are not privileged because they extend beyond legal advice - further, and for some documents in the alternative, the defendant alleges documents should be produced as the plaintiff impliedly waived privilege in the circumstances.
Held: Legal professional privilege does attach to the documents sought by the defendant - the documents are immune from production - further, the defendant's submission that privilege was waived fails - the mere denial by the plaintiff of the allegations does not give rise to a waiver of privilege - the claim for privilege is upheld.
AWB Ltd v Cole & Anor (2006) 152 FCR 382; DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151; Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325; Balabel v Air India [1998] 1 Ch 317; Yokogawa Australia Pty Ltd & Ors v Alstom Power Ltd (2010) 262 ALR 738, applied.
Southern Equities Corporation Ltd (In liq) v Arthur Andersen & Co (1997) 70 SASR 166, not followed.

BHP BILLITON OLYMPIC DAM CORPORATION PTY LTD v BLUESTONE APARTMENTS PTY LTD
[2013] SASC 64
Civil
ANDERSON J.
Introduction

The plaintiff in this matter seeks specific performance of the defendant’s obligations under a Project Deed entered into between the parties. Under the deed, the defendant agreed to undertake the design and development of residences and other infrastructure in accordance with the deed and a plan to be prepared.
Various timelines were set within the agreement and time was made of the essence. The plaintiff alleges that the defendant failed to adhere to certain timelines and eventually the plaintiff gave notice by way of a termination notice under the deed because of the alleged breaches by the defendant.
The defendant disputes the plaintiff’s entitlement to specific performance and denies most of the allegations. The defendant claims that the agreement included a mistake in relation to the setting of the “Long Stop” date, which was a crucial piece of timing in the overall agreement. As a result of the alleged mistake the defendant claims rectification of the document.
In the course of the negotiations leading up to the signing of the Project Deed the plaintiff sought legal advice. There was a considerable amount of communication between the legal advisers acting for the plaintiff and senior executives of the plaintiff company.
The dispute in this interlocutory matter relates to whether communications between the legal advisors acting for the plaintiff and those senior executives of the plaintiff company are privileged. The defendant has sought production, inspection and copying of certain documents. However the plaintiff has claimed legal professional privilege over a number of these communications. The defendant alleges certain communications are not privileged because they extend beyond legal advice. Further, and for some documents in the alternative, the defendant alleges certain documents should be produced based on the “issue waiver” principle, that is, the plaintiff impliedly waived privilege over certain documents.
There are a number of documents, the majority in email form, of which production is being sought. These were communicated between a key group of senior executives employed at BHP Billiton, the in house legal counsel at BHP Billiton, and solicitors from Johnson Winter Slattery (“JWS”) acting for BHP Billiton. The communications were between:
Philip Laity, a partner at the firm Johnson Winter & Slattery;
Mr Martin Lovell, a senior associate at Johnson Winter & Slattery supervised by Mr Laity;
Tony Johnson, a partner at Johnson Winter & Slattery;
Ms Alexandra Maddern, the Senior Manager for Group Legal for BHP Billiton Olympic Dam Corporation Pty Ltd (wholly owned subsidiary of BHP Billiton Ltd “BHPB”);
Ms Kirsten Gray, the Vice President of Group Legal for BHPB;
Paul Dunn, who at the time of the relevant communications was Vice President of Uranium;
Peter Lindner, the Manager Services and Operations at Olympic Dam. Lindner was responsible for administering the Project Deed on behalf of BHPB;
David Weickhardt, the General Manager – Services of BHPB, also involved in the administration of the Project Deed;
Helen Canty, the Head of Finance at Olympic Dam;
Glenn Hunt, the Manager of Supply at Olympic Dam;
Stefan Buys, the Asset President of Olympic Dam at the time.
The communications consist of 47 documents. The communications were all in relation to the contractual arrangements between the plaintiff and the defendant, in particular the Project Deed between the two parties which is the subject of these proceedings.
I will now set out in some detail the communications between legal advisors and the senior executives of the plaintiff company. There are three main distributors and receivers of the communications.
Background
Philip Laity
Mr Laity is a partner at Johnson Winter Slattery, the law firm acting for the plaintiff during the time in question and currently. There are 13 email communications and one file note of which Mr Laity is either the author or recipient (in one case he is the recipient of a communication forwarded to others). I now briefly summarise them.
On 23 June 2011 Lovell sent an email to Lindner providing legal advice in relation to the Project Deed, with Weickhardt and Laity copied in. A draft letter addressed to the defendant was attached. The document itself, P1, is an email from Weickhardt to Stefan Buys and Helen Canty. This email is a forward of Lovell’s email of 23 June 2011, for their information and comments on the course of action proposed in the draft letter provided by Lovell.
P30 is an email from Lovell to Paul Dunn, copied to Laity dated 10 January 2011. Attached are draft versions of the Project Deed and the Deed of Settlement and Confidentiality. The draft versions were revised and marked up by JWS. Lovell explained these changes and sought instructions from Dunn.
P36 and P38 are email correspondence between Lovell and Dunn and copied to Laity regarding comments received from Gdanski on 17 January 2011 about the draft Project Deed. In the correspondence Lovell provides legal advice and seeks instructions. Dunn responds with instructions to Lovell.
P39 is an email from Lovell to Dunn, copied to Laity, dated 1 February 2011 in which Lovell provides legal advice as to BHPB’s obligations under the Project Deed.
P44 is an email from Laity to Lindner, copied to Maddern, Canty and Lovell dated 2 June 2011. P44 is a response to an email from Maddern dated 1 June 2011 requesting advice as to the plaintiff’s obligations under the Project Deed. In the response Laity provides advice and seeks further information for the purposes of providing further advice.
P45 is an email from Laity to Lindner dated 9 June 2011, following up his request for further information in P44, and providing further legal advice in regards to the plaintiff and defendant’s dealings. P46 is Lindner response to P45.
P47 is an email from Laity to Lindner and Maddern dated 10 June 2011. In it Laity provides legal advice regarding the plaintiff’s dealings with the defendant and the plaintiff’s rights under project deed.
P56, P57, P58 are a series of emails between Laity, Lovell and Lindner dated 8 July 2011. P56 is an email from Lindner to Lovell seeking advice regarding correspondence from the defendant and the defendant’s obligations under the Deed. P57 is an email from Lovell to Lindner, copied to Laity, providing legal advice concerning obligations under the Deed and seeking further information to provide further advice. P58 is an email from Lindner to Lovell, providing that further information. Weickhardt is also copied into this email.
P59 is an email from Lovell to Lindner, copied to Laity, Weickhardt dated and Johnson 8 July 2011 in which Lovell provides legal advice regarding correspondence between the plaintiff and defendant.
P80 is an email from Lovell to Lindner, copied to Johnson and Laity. Lovell reports on a telephone conversation he had with Gdanski on 11 August 2011.
P87 is an email Lindner sent to Lovell and Maddern, copied to Laity and Johnson, in response to an email from Lovell to Maddern and Lindner, copied to Laity and Johnson. In the initial email Lovell forwarded Maddern and Lindner the project timeline, provided legal advice, suggested a course of action, and sought instructions. In Lindner response he comments on the legal advice and provides an opinion as to instructions.
P92, P93 and P94 are a series of emails between Lovell, Maddern, Lindner copied to Laity and Johnson. P92 is an email dated 18 August 2011 which has a draft proposed letter for the defendant attached, and advice as to this letter. P93 in the response to P92, including views as to the advice provided by Lovell. P94 is Maddern’s response to Lovell’s email, providing him with instructions.
P95 is an email from Laity to Maddern, copied to Lovell, Tony Johnson and Lindner dated 23 August 2011 providing legal advice in respect of correspondence with the defendant.
P99 is a copy of a file note contained in file maintained by JWS. It is a file note of meeting Lovell and Laity attended at BHP Billiton Ltd offices on 22 June 2011. The note contains a record of various instructions given to Lovell and Laity.
Alexandra Maddern
Ms Maddern was the Senior Manager Group Legal during the period in issue. She has been a legal advisor to Olympic Dam operations since 2000 and has provided legal advice to the plaintiff since 2005. Ms Maddern is responsible for providing legal advice to the Uranium Customer Sector Group (this includes the plaintiff). At the time in question, Ms Maddern reported to Ms Gray, the Vice-President Group Legal for BHPB. Ms Maddern was not involved with day to day commercial operations, instead providing legal advice as and when required. Ms Maddern received regular reports from JWS as to progress of matters and the effect of the Project Deed. From June 2011 she provided legal advice to personnel involved in the Project Deed, that is, Lindner and Weickhardt. She also liaised with JWS to seek and obtain advice, then communicating that advice within the business, including to Lindner and Weickhardt. Finally she provided legal advice to the plaintiff as to the consequences of termination of the Project Deed. There are 21 communications of which Ms Maddern is either the author or the recipient of. I now briefly summarise them.
P3 is an email Maddern sent in response to Lindner after he sought confirmation regarding his understanding of a particular part of the Deed. The response email had an email from Lovell dated 4 February 2011attached and a letter from JWS dated 4 February 2011 containing legal advice regarding the Deed. The email itself communicated the advice in the letter from JWS to Lindner.
P8 is an email from Weickhardt to Canty, Hunt and Buys, with Maddern copied in, dated 16 June 2011. P8 contained legal advice from Laity to Lindner which Weickhardt was forwarding on to the recipients mentioned above. In doing so Weickhardt summarised an aspect of that legal advice and commented upon matters of strategy arising from the advice.
P9 is two emails from Maddern to Lindner and Weickhardt, copied to Canty and Buys. These emails both contained legal advice from Maddern concerning the Project Deed. An email from Laity was also attached at the bottom of the two emails.
P10 is an email response to P9 from Buys to Maddern dated 16 June 2011. In it Buys summarises and comments upon the legal advice provided by Maddern.
P11 is an email from Maddern to Gray, updating her in regards to the Project Deed, legal advice being sought by Maddern and how Maddern intended on proceeding. This email included an earlier email Maddern sent to Gray on similar matters.
P12 is an email from Maddern to Lindner dated 27 July 2011 providing legal advice in regards to dealings with the defendant.
P13 is Lindner’s email response to Maddern email (P12).
P14 is Gray’s email response to Maddern’s email (P11). Within this email Gray provided approval for Maddern’s course of action.
P15 is an email from Lindner to Maddern dated 4 August 2011 regarding an email from Johnson. Lindner requests legal advice from Maddern regarding a matter in Johnson’s email.
P16 is the email response from Maddern to Lindner in regards to P15. This response contains legal advice from Maddern, further explaining Johnson’s initial advice.
P17 is an email from Maddern to Lindner. Attached is a memorandum by Maddern setting out legal advice in regards to the Project Deed and parties involved. Attached to this are three emails from Johnson dated 5 August 2011 and the latter two emails dated 8 August 2011 providing legal advice and strategy for future dealings with the defendant.
P18 to P22 are emails in response to above email (P17) from Maddern, from Lindner and Weickhardt, commenting and agreeing with course recommended within.
P23 is an email from Maddern to Lindner. Within is an email Maddern received from Eve Thomson (a Senior Associate at JWS) dated 30 August 2011 which provided legal advice as to a course of action. It also sought instructions from Maddern. In P23 Maddern noted the advice to Lindner and advised him of the instructions she had provided to JWS.
P24 is Lindner’s email response to the above email from Maddern (P23). It provides his views regarding the course of action.
P43 is an email from Maddern to Lovell, copied to Laity, Lindner and Canty, requesting Laity and Lovell provide legal advice regarding the plaintiff’s obligations under the Project Deed.
P85 is an email from Lovell to Maddern, copied to Lindner dated 16 August 2011. The email was sent the day following the plaintiff giving the defendant notice of the termination of the Deed. The email contains a revised timeline received from the defendant. Lovell also provides legal advice and seeks further instructions.
P86 is an email from Maddern to Lovell in response to above email (P85), seeking further legal advice.
P87 is an email from Lindner to Maddern and Lovell, copied to Laity and Johnson, in response to Lovell’s email (P85). Lindner comments on the legal advice provided and gives an opinion as to instructions.
P88 is an email from Maddern to Lindner and Lovell, copied to Laity and Johnson, in response to Lindner’s email (P87). This email sets out Maddern’s view to instructions and provides instructions to Lovell as to how to proceed.
P89 is an email from Maddern to Johnson, copied to Lovell, Laity and Lindner, in response to email from Johnson dated 17 August 2011. Maddern provides instructions to Johnson based on advice previously given by Johnson. Maddern also provided her own opinion to Lindner in regards to matters raised in the advice.
P94 is an email from Maddern to Lovell and Lindner, copied to Laity and Johnson. Maddern’s email was a response to legal advice and a draft proposed letter to the defendant, sent by Lovell in email on 18 August 2011. P94 provided instructions to Lovell how to proceed based upon his legal advice. Lindner’s response regarding the Lovell’s proposed course of action to Lovell’s email is also set out in P94.
Peter Lindner
There are five communications in respect of which Mr Lindner was given information. As I have mentioned above, Mr Lindner was the Manager of Services Operations at Olympic Dam during the time in question. In this position he dealt with housing, accommodation, infrastructure and transport at Olympic Dam. Mr Lindner was involved in the administration of the Project Deed on behalf of the plaintiff. He was a key senior executive in the whole project.
P50 is a copy of handwritten notes written by Lindner at a meeting attended by Maddern, Laity, Lovell (in Adelaide), Weickhardt and Lindner (via videoconference in Roxby Downs). The meeting was held on 22 June 2011. The notes record the legal advice provided by Laity as to effect of Project Deed and a proposed course of action.
P56 is an email from Lindner to Laity and Lovell dated 8 July 2011 seeking legal advice regarding correspondence from the defendant, and also providing information for the purpose of gaining legal advice.
P90 is an email from Lindner to Maddern and Johnson, copied to Lovell and Laity dated 17 August 2011 in response to emails from Johnson and Maddern, in which they have provided legal advice in regards to a timeline submitted by the defendant. In P90 Lindner confirms actions he was taking as suggested in the legal advice.
P91 is an email from Lindner to Lovell and Maddern, copied to Laity and Johnson dated 17 August 2011 in response to their emails in P90. Lindner provides information to the JWS solicitors and Maddern in response to their request for information as contained in their legal advice.
P93 is an email from Lindner to Lovell and Maddern, copied to Laity and Johnson dated 18 August 2011 in response to an email from Lovell. The email from Lovell contained legal advice and a draft proposed letter addressed to the defendant from JWS. In Lindner’s email he sets out his opinion as to how to proceed based upon legal advice.
The documents I have listed above are the total being sought for production by the defendant.
Argument
Mr Roberts submitted that the documents listed above should not attract privilege. He did not dispute the principle that, in the case of confidential communications between legal advisor and client, the purpose of the communications should be construed broadly. Mr Roberts submitted first, these documents still do not satisfy what he has submitted is the second part of the privilege test, that is, the dominant purpose test. He referred the Court to the decision in AWB Ltd v Cole & Anor (2006) 152 FCR 382. Young J restated the test at [85]. He said:
[85]Succinctly stated, the first limb of legal professional privilege attaches privilege to confidential communications made for the dominant purpose of obtaining or giving legal advice. In applying this limb, one of the first questions that arises is what qualifies as legal advice.
His Honour made the point at [101] that first, “the lawyer’s advice must satisfy the description of professional advice” and second “communications for the purpose of obtaining and giving legal advice in the sense discussed in Balabel … must satisfy the dominant purpose test if they are to attract legal professional privilege”.

Mr Roberts argued that communications between in house advisors must be approached with a greater degree of scrutiny, and submitted in a number of the documents, the mere fact of seeking comments on a course of action proposed is not privileged, but rather is an ordinary internal communication in the corporate organisation. Mr Roberts referred the court to DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151 to support this proposition. The proposition contended for is that where it stated in the decision, namely, the mere fact a document was copied to external lawyers, does not provide a basis for concluding it was provided for the dominant purpose of obtaining legal advice.
Young J in Cole referred to both the DSE decision and Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 in his reasons at [97] and [98].
Mr Roberts submitted that in the description of a number of the documents there is no mention of the provision of legal advice. He submits that instead they are only listed as being a “response”. In his reply to the argument submitted by Mr Doyle that the internal communications were part of a “continuum” and that commenting upon a course of action is part of the advice, Mr Roberts submitted that the notion of a continuum does not apply to internal communications but only between a solicitor and client. He submitted that while an internal reproduction of legal advice will be privileged if it reproduces or reveals the communication, if it is something other than that, such as a plan or strategy developed from the advice, it is not of a privileged nature.
The concept of a continuum advanced by Mr Doyle SC comes from the reasons of Taylor LJ in Balabelv Air India [1988] 1 Ch 317 at 330.
His Honour said, in relation to the topic of a document made confidentially for the purposes of legal advice:
Those purposes have to be construed broadly. Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that ll other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and client. The negotiations for a lease such as occurred in the present case are only one example. Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as “please advise me what I should do”. But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.
Mr Doyle argued that the documents in question were all part of the process of seeking and obtaining legal advice. He submitted that when the documents were considered in the context of the legal relationship they formed part of the continuum of discussions pursuant to the legal retainer. Mr Doyle submitted that if the dominant purpose of the communication in question was pursuant to the continuum, it remains part of the privileged legal relationship between lawyer and client. Mr Doyle submitted that any document to which either the external solicitors at JWS, or the internal solicitor Maddern were either the author or recipients of was part of the continuum, and additionally documents which reveal legal advice that were forwarded to other senior executives within the plaintiff company. Mr Doyle submitted the documents were not on unrelated topics but were all relevant to the retainer, being related to the setting up of the Project Deed and also the process of dealing with the defendant under the Deed. Mr Doyle referred to the AWB v Cole decision as support for these propositions.
Mr Doyle further submitted that even if a communication is not part of the continuum, if it tends to reveal a communication that is part of the continuum then it is protected itself, as supported by the Dalleagles decision at paragraphs [332]-[333]. Finally Mr Doyle submitted that in regards to those involved in the communications that were employed by the plaintiff, all personnel were people high up in the organisation and were relevant for the purpose of directing the mind and will of the client.
Consideration
In my view, the descriptions of these documents as provided in the affidavits of Philip Laity, Alexandra Maddern and Peter Lindner indicates that there is legal privilege attaching to these communications. Based on the descriptions, I have reached the conclusion that the communications are in the context of either giving legal advice, seeking further information for legal advice, or advising future steps to be taken. As Taylor J says in Balabel in the passage cited earlier at page 330, “legal advice is not confined to telling the client the law, it must include advice as to what should prudently and sensibly be done in the relevant legal context”.
In my view the circumstances were such that information was passed from solicitor to client as part of a continuum aimed at keeping each other informed, to allow advice to be sought and given and then acted upon. In such circumstances privilege will attach to such documents: see Balabel at page 330. Further, it does not need to be explicitly labelled as advice to be privileged, as this can be an implied expectation that the legal advisor will tender advice. This proposition is supported by the decision in Dalleagles, in which Anderson J stated at [332]-[333] “Discourse between solicitor and client with reference to the transactions covered by those instructions should be regarded as prima facie for the purpose of giving and receiving advice”. In my view this statement is applicable in the circumstances before me. The documents in question are all communications of a professional nature from legal advisor to client, touching subject matter of the legal advisors engagement, and are therefore privileged as being part of the legal advice continuum.
I agree with Mr Doyle’s submission that any document that has the external or internal legal advisors as either author or recipient is part of the legal advice continuum. Further, I agree with his submission that communications in which an executive has forwarded a document tending to reveal such legal advice to another executive within the plaintiff company will form part of this continuum and attract privilege. In my view those involved in the communications were, as Mr Doyle stated, in senior positions that were directing the mind and will of the plaintiff, particularly in regards to the subject of this matter, the Project Deed. Their involvement and input was a necessary part of the corporate decision making of the plaintiff company.
I therefore find that all documents for which production is sought attract legal professional privilege and thus are immune from production.
Issue Waiver
Mr Roberts contends that if privilege exists it has been waived in respect of some documents. In relation to documents 30, 36, 38 and 39 Mr Roberts submits that they are relevant to his client’s claim for rectification.
Dealing with the rectification issue first, the plaintiff has done nothing more in my view than deny the alleged entitlement to rectification asserted by the defendant. The defendant alleges that the contract does not record the common intention of the parties. The plaintiff denies that allegation and refers in its reply to various drafts of the Project Deed, and it further alleges relevant conduct of the defendant.
The mere denial by the plaintiff and the allegations it makes cannot, in my view, give rise to an issue waiver. In DSE Allsop J said at [115]:
… the act of mere denial by the respondents of an assertion by the applicants is not an act by the respondents which expressly or impliedly makes an assertion about the contents of any privileged communication or which necessarily lays any such communication open to scrutiny. There is no act of the respondents inconsistent with the maintenance of the confidentiality. There is joinder of issue on a question of fact to which the privileged communication can be seen as relevant. That is insufficient in my view for it to be concluded that there exists the necessary inconsistency enunciated in Mann v Carnell.
(Footnotes omitted)
Those comments in my view fit appropriately the circumstances of this mater. The decisions in DSE and Mann v Carnell (1999) 201 CLR 1 are more recent decisions than Southern Equities Corporation Ltd (In Liq) v Arthur Andersen & Co (1997) 70 SASR 166 relied on by Mr Roberts. As I have said the remarks of Allsop J are particularly apposite. He followed the decision of the High Court in Mann. See also Yokogawa Australia Pty Ltd & Ors v Alstom Power Ltd (2010) 262 ALR 738 at [42] in which the Full Court applied the remarks of Allsop J.
Mr Roberts next submitted that documents P1, P11 to P15, P17 to P21, P43 to P47, P56 to P59 and P85 to P94 are relevant to BHP’s state of mind and that BHP has breached an implied term in the contract to co-operate and use its best endeavours to ensure that the aims of the Project Deed were fulfilled.
As to the alleged waiver, because of the suggested breach of implied terms in the Project Deed, it is my view that again the denial of the defendant’s allegation of a failure to co-operate and use its best endeavours is not sufficient to give rise to a waiver. The plaintiff after pleading that the Project Deed provides that it is the entire agreement, then denies the particulars pleaded by the defendant for the breach of the implied terms.
The plaintiff in its denial does not raise any issue as to legal advice which it obtained. It sets out the particulars of what the plaintiff alleges was the factual situation at the time. The defendant is merely speculating and it is not appropriate to make the orders sought by the defendant.
Conclusion
For the reasons given I uphold the claim for privilege in respect of all the communications challenged by the defendant.
In addition I have found that there is no issue waiver.
I will hear the parties as to costs.