Billabong Gold Pty Ltd v Vango Mining Ltd
[2020] WASC 80
•12 MARCH 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BILLABONG GOLD PTY LTD -v- VANGO MINING LTD [2020] WASC 80
CORAM: KENNETH MARTIN J
HEARD: 27 FEBRUARY 2020
DELIVERED : 12 MARCH 2020
FILE NO/S: CIV 2932 of 2018
BETWEEN: BILLABONG GOLD PTY LTD
Plaintiff
AND
VANGO MINING LTD
First Defendant
DAMPIER (PLUTONIC) PTY LTD
Second Defendant
Catchwords:
Practice and procedure - Application for further and better discovery - Challenge to claim of legal professional privilege - Disputed document inspected - Claim of privilege upheld
Legislation:
Nil
Result:
Challenge to claim of legal professional privilege dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr S K Dharmananda SC & Ms L Mengler |
| First Defendant | : | Mr M N Solomon SC |
| Second Defendant | : | Mr M N Solomon SC |
Solicitors:
| Plaintiff | : | Grondal Bruining |
| First Defendant | : | Gilbert + Tobin |
| Second Defendant | : | Gilbert + Tobin |
Case(s) referred to in decision(s):
Nil
KENNETH MARTIN J:
In the aftermath of the contested mutual cross-applications for further and better discovery heard in this matter by me on Thursday, 27 February 2020 most issues in dispute were dealt with and resolved at the time, save for one exception. That is reflected in the orders which ultimately issued on 9 March 2020 (electronic document 66).
The application
There was one aspect of the application made by the defendants under par 2 of their amended minute of proposed orders of 22 November 2019 which still requires my final resolution. This concerns the defendants' application that the plaintiff produce a number of documents that are the subject of a legal claim to professional privilege, as identified in the list under Pt 1A and 1B to the verified affidavit of Mr Christopher Bradbrook, sworn 4 July 2019. Mr Bradbrook is the Ontario, Canada based director of the plaintiff. Within that affidavit Mr Bradbrook identifies a list of documents in Pt 1A but objects to production of some of those documents (as further identified in Pt 1B) on grounds as stated in Pt 1B.
Relevantly, Attachment A, being the list of supplementary documents provided on behalf of the plaintiff, at Pt 1A identifies the following class of documents:
15.Email chain between Bradbrook and Olmstead, MacDonald, Day and Grondal Bruining, comprising:
(a)email from MacDonald to Bradbrook, copied to Grondal Bruining, Day and Olmstead entitled 'ROFR Litigation', dated 9 November 2018; and
(b)email from Bradbrook to MacDonald, copied to Grondal Bruining, Day and Olmstead, entitled 'ROFR Litigation [sic], dated 12 November 2018.
Then, by Pt 1B of Attachment A, the claim of legal professional privilege against inspection is raised on the following basis, as regards category 15 documents, expressed as follows:
Legal professional privilege - this email chain came into existence and was made after this litigation had commenced for the dominant purpose of furnishing information in relation to matters the subject of the litigation for use by Grondal Bruining in the conduct of the litigation and otherwise for the plaintiff to obtain advice from Grondal Bruining.
The present litigation was commenced by a writ of summons with an endorsement of claim on 8 November 2018.
Inspection of the challenged documents
During the course of the further and better discovery arguments a submission was made by senior counsel for the defendants to the effect that I should, if in doubt about the challenge against the claimed privilege, personally inspect the category 15 documents, before rendering my decision concerning the challenged claim to legal professional privilege. No objection was raised by the plaintiff against me taking that step, if I thought it appropriate.
Ultimately, I resolved to take that inspection step and that course is reflected under par 5 of my orders of 9 March 2020 - which became the subject of eventual consent as between the parties.
In due course, the plaintiff's lawyers, Grondal Bruining, delivered to my Associate the category 15 documents for perusal as a part of considering the challenges against privilege as advanced by the defendants.
The main email communication by Ms Hillary MacDonald, general counsel and company secretary of Northern Star Resources Ltd, was despatched to a Mr Bradbrook, a director of the plaintiff, on Friday, 9 November 2018 at 10.56 pm. But her email was also copied to a number of other internal persons, including to the plaintiff's local lawyer of record, Mr Dean Grondal. It is apparent from the terms of what Ms MacDonald had written then to Mr Bradbrook that her communication is demonstrably in the nature of providing her internal and external legal advice to the plaintiff and others with a common interest within the plaintiff's corporate hierarchy (Northern Star being a major shareholder in the Billabong Corporate Group). In particular, the advice appears to be directed towards responding to a number of matters raised in a recent communication from Gilbert + Tolbert (Sydney). The subsequent 12 November 2018 communication by Mr Bradbrook to Ms MacDonald merely acknowledges his receipt of her advice and, on my assessment, does not derogate from the privileged character of the category 15 communications.
Conclusion
On the basis of my assessment of the arguments put towards these documents and, now having personally viewed the category 15 documents, I am of the view that nothing has emerged which can derogate from the privilege which attaches to these communications made within the plaintiff's corporate hierarchy and also copied to its local Perth lawyers of record, during the pendency of this litigation. Consequently, I reject the defendants' challenge directed against these documents as regards the maintenance of a claim of legal professional privilege, which I assess as being legitimately asserted.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IH
Research Orderly to Justice Kenneth Martin12 MARCH 2020
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