Braziron Corporate Services Pty Ltd v Road Rail and Mine Products Pty Ltd [No 2] - [2025] WASC 44

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BRAZIRON CORPORATE SERVICES PTY LTD -v- ROAD RAIL AND MINE PRODUCTS PTY LTD [No 2] [2025] WASC 44
CORAM:   LUNDBERG J
HEARD:   23 OCTOBER 2024
DELIVERED          :   20 FEBRUARY 2025
FILE NO/S:   CIV 1788 of 2020
(Consolidated with CIV 1104 of 2021)

BETWEEN: BRAZIRON CORPORATE SERVICES PTY LTD
First Plaintiff
SAFETY BARRIERS (WA) PTY LTD
Second Plaintiff
AND
ROAD RAIL AND MINE PRODUCTS PTY LTD
First Defendant
CYNDIE WOOLCOCK
Second Defendant
JED PALMER
Third Defendant
WYLIE JAMES WOOLCOCK
Fourth Defendant
LATOYA MARIE PALMER
Fifth Defendant

Catchwords:

Practice and procedure - Application by the plaintiffs to inspect documents discovered by the defendants which are subject to a claim for legal professional privilege - Privilege claimed to have been waived on two bases - Waiver asserted on the basis of partial disclosure by the defendants during the course of the negotiations for the Share Sale Agreement - Waiver asserted on the basis of the defendants' pleading in their defence of state of mind - Turns on own facts

Practice and procedure – Inspection of privileged documents - Whether Court has power to inspect documents for purposes of assessment of waiver question, where there is no challenge to existence of privilege - Whether such power should be exercised - Held that power exists and inspection is appropriate in circumstances - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 3A, O 26 r 8, O 26 r 9, O 26 r 10, O 26 r 12

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	K R Lendich SC & R R Joseph
Second Plaintiff	:	K R Lendich SC & R R Joseph
First Defendant	:	P G Donovan
Second Defendant	:	P G Donovan
Third Defendant	:	P G Donovan
Fourth Defendant	:	P G Donovan
Fifth Defendant	:	P G Donovan

Solicitors:

First Plaintiff	:	M6:8 Legal
Second Plaintiff	:	M6:8 Legal
First Defendant	:	MDS Legal
Second Defendant	:	MDS Legal
Third Defendant	:	MDS Legal
Fourth Defendant	:	MDS Legal
Fifth Defendant	:	MDS Legal

Case(s) referred to in decision(s):

Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101
Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49
Glencore International AG v Federal Commissioner of Taxation [2019] HCA 26; (2019) 265 CLR 646
GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266
Grant v Downs [1976] HCA 63; (1976) 135 CLR 674
Legal Services Commission v JHW [2012] SASCFC 47; (2012) 223 A Crim R 534
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
Poland v Hedley [2023] WASCA 69
Rinehart v Rinehart [2016] NSWCA 58
Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1336
Roberts-Smith v Fairfax Media Publications Pty Limited (No 29) [2022] FCA 218
Terracom Ltd v ASIC [2022] FCA 208
Terracom Ltd v ASIC [2022] FCAFC 151
Vitruvian Investments Pty Ltd v Sharif [2023] FCA 471
Wright Prospecting Pty Ltd v Hancock Prospecting [No 25] [2024] WASC 132

Table of Contents

A. Introduction

B. The nature of the action

C. Factual chronology

Share Sale Deed in 2016

Heads of Agreement in October 2017

Communications on 11 and 12 December 2017

Conduct in January 2018

D. The Application

E. Relevant pleadings

Rectification claim

Breach of contract claims

Equitable duty of confidence

Misleading or deceptive conduct claim

Defence

F. Disposition of issue 1 - Court's power to inspect the documents

Background

Whether the Court has power to inspect in the present circumstances?

Whether to exercise the power?

G. Disposition of issue 2 - Disclosure Waiver Ground

Background

Disposition

H. Disposition of issue 3 - Issue Waiver Ground

Background

Disposition

I. Conclusion and orders

ATTACHMENT A Schedule of Withheld Communications

ATTACHMENT B 11 December Email

ATTACHMENT C 12 December Email

ATTACHMENT D Orders for inspection made on 11 December 2024

LUNDBERG J:

A. Introduction

These reasons concern an application brought by the plaintiffs, who are seeking orders to permit the inspection of 12 specific documents which have been discovered by the defendants in this action, and in respect of which legal professional privilege has been claimed. The documents, which are referred to by the plaintiffs as the Withheld Communications, are itemised in Attachment A to these reasons.
The plaintiffs contend, and the defendants deny, that the privilege which otherwise inures in the Withheld Communications has been waived. Whether privilege has been waived is thus the central issue in the application. There is no dispute on this application that the Withheld Communications are otherwise subject to valid claims for privilege, being communications between one of the defendants and the defendants' solicitors.
The application was brought by way of a letter to the Court issued by the plaintiffs' solicitors and dated 20 August 2024 (Application). The letter identified the Withheld Communications by reference to a schedule attached to a minute of proposed orders, also dated 20 August 2024.
Given the privileged nature of the documents which are the subject of the Application, the parties approached the matter with appropriate caution and sought arrangements for the Application to be referred to a Judge other than the trial judge for hearing and determination. The action itself is being case managed by her Honour Justice Strk. The prudence of this approach has been borne out, as I ultimately formed the view it was necessary to inspect the Withheld Communications in order to determine the Application.
The Application was supported by an affidavit sworn by one of the plaintiffs' solicitors, Ms Mabel Lai‑Fun Chua, which is dated 20 August 2024 (Chua Affidavit). The defendants did not adduce any affidavit evidence in response. The Chua Affidavit was read without objection.
In order to properly understand the Application, some background concerning the action is required, together with a factual chronology, which is set out below.

B. The nature of the action

At the centre of this action are several transactions, executed in July 2016 and in December 2017, which led to the acquisition of a company known as Safety Barriers (WA) Pty Ltd (SBWA), being the second plaintiff in this action.[1]
[1] Amended Consolidated Statement of Claim dated 13 December 2021 (SOC) [8] - [12].
The first plaintiff, BrazIron Corporate Services Pty Ltd (BrazIron), is the company which now owns and controls SBWA, having acquired it through transactions just mentioned.[2] Ms Anthea Huang has at all relevant times been the sole director of the first plaintiff.
[2] SOC [1], [8] and [11].
The second to fifth defendants in this action were initially equal shareholders in SBWA before its sale to the first plaintiff.[3] Each of the second to fifth defendants held 25 of the 100 shares that constituted the SBWA shareholding. Those defendants are:
(a)Ms Cyndie Woolcock (second defendant);
(b)Mr Jed Palmer (third defendant);
(c)Mr Wylie James Woolcock (fourth defendant); and
(d)Ms Latoya Marie Palmer (fifth defendant).
[3] SOC [4] - [7].
Ms Woolcock was also a director of SBWA and was employed as operations manager and office manager.[4]
[4] SOC [4.2] and [4.3].
The plaintiffs seek a range of remedies in this action against the defendants, based on:
(a)alleged breaches of contract (including breach of a restraint clause and breach of warranty);[5]
(b)alleged breaches of the contractual provisions not to use or disclose confidential information and breaches of the equitable duty of confidence by Ms Woolcock in relation to the second plaintiff, SBWA;[6] and
(c)alleged misleading or deceptive conduct contrary to the Australian Consumer Law.[7]
[5] SOC [18] (breach of warranty), [33] - [35] (breach of restraint).
[6] SOC [19] - [32].
[7] SOC [36] - [44].
The first plaintiff also seeks an order for the rectification of one of the transaction instruments, specifically in relation to the restraint clause therein.[8]
[8] SOC [13] - [15] and First Plaintiff's Prayer for Relief A.
In part, the plaintiffs complain that the second and third defendants have breached a restraint provision in the instrument, including through the establishment of the first defendant, Road Rail and Mine Products Pty Ltd (RRMP), allegedly in competition with the business of SBWA (being the business the second to the fifth defendants had earlier sold to the first plaintiff).
It is the restraint clause and the alleged breach thereof which assumed prominence on the present Application.

C. Factual chronology

To put the present application in some context, I will briefly traverse the factual background as it appears from the pleadings, the submissions, and the Chua Affidavit.
These reasons have regard to the pleadings as they stood when the Application was heard, although I note from the Court file that pleading amendments have subsequently been made.[9] The parties did not suggest that those amendments had any impact on the outcome of the Application.

Share Sale Deed in 2016

[9] Further Amended Statement of Claim dated 25 November 2024 (FASOC).

On 1 July 2016, the first plaintiff and the second to fifth defendants executed a share sale deed pursuant to which the second to fifth defendants sold a majority interest in the second plaintiff to the first plaintiff (Share Sale Deed). These defendants each sold 16 of their shares to the first plaintiff for a total sum of $4 million.[10]
[10] Chua Affidavit [6(a)] and [7], Attachment MLC 3.
Thus, by the Share Sale Deed, BrazIron agreed to buy 80% of the second to fifth defendants' interest in SBWA in two tranches, with the first tranche being 64% of the shares. The Share Sale Deed contained a clause concerning post completion restrictions and payments which, among other things, restrained the second to fifth defendants from competing with the second plaintiff's business for a specified period of time, being 10 years (see cl 14.1).[11]
[11] Chua Affidavit [7].
On the same day, the same parties also executed a shareholders' agreement in respect of the shareholding in the second plaintiff (Shareholders' Agreement).[12]

Heads of Agreement in October 2017

[12] Chua Affidavit [6(b)] and [8], Attachment MLC 4.

In around August 2017, BrazIron and the second defendant (being Ms Woolcock), on behalf of the various individual defendants, began negotiating the sale and purchase of all the remaining shares in SBWA instead of continuing with the more limited sale under the initial Share Sale Deed. An email was sent by Ms Woolcock to Mr Jamie Morton on 30 August 2017 for this purpose, referring to the offer made that day by BrazIron.[13]
[13] Chua Affidavit [9], Attachment MLC 5.
In October 2017, BrazIron, Ms Woolcock and the third defendant (who is Mr Jed Palmer) executed a heads of agreement which contemplated entering into a revised share sale and purchase agreement that was to replace the Share Sale Deed (Heads of Agreement).[14]
[14] Chua Affidavit [10], Attachment MLC 10.
Commencing in November 2017, there were several email exchanges between Ms Woolcock and her lawyers at Carter Newell, headed 'SBWA'.[15] These are privileged communications.
[15] Schedule of Withheld Communications, Documents 1 to 6 (13 November 2017) and Documents 7 and 8 (18 November 2017).
It appears thereafter that a draft revised share sale and purchase agreement was circulated to some of the defendants by Mr Jamie Morton on 6 December 2017.[16] This draft contained a clause purporting to restrain the individual defendants from competing with the business of SBWA for a period of 10 years.
[16] Chua Affidavit [11], Attachment MLC 7.
There were then some further privileged communications between Ms Woolcock and her lawyers, on 6 and 8 December 2017.[17]

Communications on 11, 12 and 13 December 2017

[17] Schedule of Withheld Communications, Document 9 (6 December 2017) and Documents 11 and 12 (8 December 2017). See also Document 10, being a Draft Share Sale Agreement apparently dated 3 December 2017.

We then move to the documents which the plaintiffs rely upon to demonstrate waiver by disclosure.
On 11 December 2017, Ms Woolcock emailed BrazIron an amended draft revised agreement.[18] In the covering email, Ms Woolcock described the attached document as 'the agreement from the lawyer with a few little changes that need making' (referred to as the 11 December Email). The lawyer referred to in the email is her own lawyer, from Carter Newell. The 11 December Email is not a privileged document. In Attachment B to these reasons, an image of the 11 December Email has been incorporated.
[18] Chua Affidavit [12], Attachment MLC 8.
The amendments in the draft revised agreement which were identified by Ms Woolcock as 'needed making [sic]' by 'the lawyer' were clearly identifiable in markup and through comments within the document. I have included in Attachment B three images of extracts from the marked-up agreement which was attached to the 11 December Email, showing both the mark-up to the agreement and the visible comments which had been inserted by Ms Woolcock's lawyer, marked with the abbreviation 'CN' to reflect, I infer, the firm Carter Newell.
To be clear, the mark-ups have not been inserted by the client, nor changed by the client from their original form. It would seem the client has forwarded the marked-up version of the agreement directly to the counterparty, 'warts and all' so to speak.
On 12 December 2017, Ms Woolcock emailed BrazIron a further amended version of the agreement (referred to as the 12 December Email).[19] The 12 December Email is also not a privileged document.
[19] Chua Affidavit [13], Attachment MLC 9.
In the 12 December Email, Ms Woolcock again described the attached document as containing 'changes from the lawyer'. It is then said by the plaintiffs that Ms Woolcock went even further than her earlier communication, and set out in substance what the lawyer had advised her with respect to several of the clauses. I have extracted in Attachment C an image of the 12 December Email. As can be seen, the phrase used in the email from the client is 'He has advised', meaning the solicitor has advised.
Where convenient, I will refer to the 11 December Email and the 12 December Email as the December Emails.
On the following day, 13 December 2017, the parties executed the Agreement for the Sale of Shares and Termination (2017 Share Sale Agreement).[20] The 2017 Share Sale Agreement included an express clause in the following terms:
7.Further Covenants of the parties as a consequence of this Agreement
7.1 The Vendors and the Purchaser agree that from and after the signing of this Agreement and Completion the following provisions shall apply:
…
(j)The Vendors severally undertake to the company that they will not for a period of 5 years from Completion, provide services to or be engaged or employed by any other company or entity the business of which comprises or includes as a principal undertaking the same or substantially the same as the Business in competition to the Company.
[20] Chua Affidavit [16], Attachment MLC 10.
In this clause, the term 'Company' is a reference to SBWA. The 'Vendors' are the second to the fifth defendants, and the 'Purchaser' is the first plaintiff. The term 'Business' is not defined in the 2017 Share Sale Agreement.
At first glance, it will be immediately apparent that the clause purports to operate as a restraint on the activities of the second to the fifth defendants for a 5 year period, but has not been drafted in the more common, modern style which uses cascading provisions as to time, geography, and other features.

Conduct in January 2018

The plaintiffs next draw attention to conduct on the part of Ms Woolcock in mid-January 2018 by which it is said she emailed material to her home email address, which included a list of suppliers and client contact list.[21] It is then alleged Ms Woolcock took steps, on 18 January 2018, to incorporate RRMP.[22] Some months later, in May 2018, it is alleged that Ms Woolcock only then informed BrazIron verbally and by email that the defendants were starting up a new business.[23]
[21] Chua Affidavit [19], Attachment MLC 13.
[22] Chua Affidavit [20], Attachment MLC 14.
[23] Chua Affidavit [21], Attachment MLC 15.

D. The Application

Against that background, the Application itself can be explained. The plaintiffs submit that orders for inspection should be made on the basis that privilege has been waived in two respects. The Application also required the Court to address an anterior issue as to the power of the Court to inspect the disputed documents.
The issues arising on the Application are set out below.
First, there is a question whether the Court has power to inspect the documents on this Application (in respect of which there is no dispute as to the existence of privilege) and, if so, whether the Court should exercise that power in the circumstances.
Second, it is contended that the defendants partially disclosed the legal advice contained in the Withheld Communications, during the course of negotiations between the parties in December 2017 leading to the execution of the 2017 Share Sale Agreement, such that the maintenance of privilege over the Withheld Communications is inconsistent with that disclosure.[24] The disclosure of legal advice is said to be found in the December Emails, which were sent to the plaintiffs' representatives. I will refer to this as the Disclosure Waiver Ground.
[24] PS [2(a)] and [7] - [23].
There are two sub-issues to address in this respect:
(a)The first sub-issue is whether and, if so, on what basis, an acceptance of the plaintiffs' contentions as to inconsistency justifies the making of an order that requires the defendants to produce all of the Withheld Communications.
(b)The second sub-issue is whether the plaintiffs must also demonstrate that the Withheld Communications are likely to be relevant to matters in issue in the proceeding itself.
Third, it is contended that the defendants have filed a pleading as to their state of mind, and in so doing have made implied assertions about the content of the Withheld Communications which informed that state of mind, thereby laying those communications open to scrutiny.[25] I will refer to this as the Issue Waiver Ground.
[25] PS [24] - [31].
The plaintiffs filed an outline of submissions in support of the Application, dated 24 September 2024. The defendants, in response, filed a set of submissions dated 16 October 2024. In those submissions, the defendants opposed the application and rejected the assertions that there has been a waiver on either basis.[26]
[26] DS [3].
Senior counsel for the plaintiffs clarified at the hearing that the plaintiffs seek the inspection orders pursuant to O 26 r 9(1) of the Rules of the Supreme Court 1971 (WA) (RSC), which itself refers to O 26 r 8 RSC. Order 26 r 9(2) RSC is not relied upon in this application.
Order 26 r 9(1) provides:
9. Order for inspection of documents
(1)Where a party who is required by rule 8(1) to serve the notice therein mentioned, or who is served with a notice under rule 8(3) —
(a)fails to serve the notice under rule 8(1) or as the case may be rule 8(3); or
(b)objects to produce any document for inspection; or
(c)offers inspection at a time or place which in the opinion of the Court is unreasonable for such purpose,
the Court may on the application of the party entitled to inspection make an order for production of the documents in question for inspection at such time and place, and in such manner as it thinks fit.

E. Relevant pleadings

As matters stood at the time the Application was argued, the pleadings in the action were represented by the amended consolidated statement of claim dated 13 December 2021 (which I have earlier defined as the SOC), the amended defence to amended consolidated statement of claim and counterclaim dated 13 April 2022 (Defence), and the amended reply dated 11 June 2023 (Reply).
The SOC pleads several causes of action, in contract, equity and pursuant to statute.

Rectification claim

First, it is pleaded by the first plaintiff that the 2017 Share Sale Agreement ought be rectified on the basis that the terms of the instrument failed to give effect to the common intention of the parties to include certain terms: SOC [13] - [15]. The terms which are pleaded to have been the subject of that common intention concern the restraint clause in the agreement.
It is pleaded the 2017 Share Sale Agreement should be rectified to:[27]
(a)insert into cl 7.1(j) between 'not' and 'for a period', the words 'throughout Western Australia'; and
(b)insert into cl 7.1(j) after '5 years from Completion' the words 'but if that duration is void 4 years from Completion, if that duration is void 3 years from Completion, if that duration is void 2 years from Completion, if that duration is void 1 year from Completion'.

Breach of contract claims

[27] SOC [15].

Second, it is pleaded by the first plaintiff that the second to fifth defendants breached the warranty in the 2017 Share Sale Agreement: SOC [12] and [16] - [18]. The warranty clause is to the effect the agreement constituted a legal, valid, and binding agreement, enforceable in accordance with its terms, and there were no circumstance which could make this document or any transaction contemplated by it void, voidable or unenforceable under any applicable law about insolvency.[28]
[28] 2017 Share Sale Agreement, cl 8.1.
The basis for the warranty claim is that the defendants have denied the express restraint clause in the 2017 Share Sale Agreement is valid and enforceable: SOC [16]. If that is correct, the plaintiffs maintain the warranty clause has been breached.
Third, the second plaintiff pleads a breach by the second defendant of the express confidentiality provisions in the agreement between SBWA and the second defendant which was executed on 5 January 2015: SOC [19] - [23] and [30].[29] The pleading identifies a range of information said to be confidential which the second defendant obtained from SBWA's database and provided to RRMP and other parties.
[29] See the express terms pleaded at SOC [20.1] and [20.2].
Fourth, the first plaintiff pleads an alternative claim that the second defendant breached the restraint clause in the 2017 Share Sale Agreement: SOC [31]. The conduct in question which is complained of is set out at [4.5] and [26] of the pleading, being the employment of the second defendant by RRMP as its operations manager and contract administrator, and her role as sole director and shareholder of RRMP at the time of incorporation until 19 July 2018.
Fifth, the first plaintiff pleads an alternative claim that the third defendant breached the restraint clause in the 2017 Share Sale Agreement: SOC [33] - [35].

Equitable duty of confidence

Sixth, the second plaintiff pleads a breach on the part of RRMP of the equitable duty of confidence: SOC [24] - [29]. A range of remedies are sought against RRMP. It is said that RRMP must be restrained in this regard, must deliver up the confidential documents, and damages alternatively an account of profits is sought against RRMP. The claim against RRMP is maintained by SBWA.[30]

Misleading or deceptive conduct claim

[30] Second Prayer for Relief, A to G.

Seventh, and finally, the first plaintiff pleads a misleading or deceptive conduct claim against the second to fifth defendants, pursuant to the Australian Consumer Law: SOC [36] - [44]. The representations which underpin this claim are pleaded at [37] as follows:
[37]On or about 11 December 2017 each of the second to fifth defendants represented to the first plaintiff, in effect, that in the event that the first plaintiff executed the draft agreement attached to that email:
[37.1]that defendant would not provide services to, or be engaged or employed by, any other company or entity, the business of which comprised or included as a principal undertaking, the same or substantially the same as that of SBWA for a period of 5 years from completion of the sale of that defendant's 9 shares in the second plaintiff;
[37.2]that defendant would ensure that he or she would not act as pleaded in subparagraph 37.1 for a period of 5 years from completion of the sale of that defendant's 9 shares in the second plaintiff;
[37.3]the covenant pleaded in paragraph 12.1 would, upon execution of the agreement between the parties, be valid and effective;
[37.4]that defendant had a reasonable basis for making the representation pleaded in subparagraph 37.3.
The representations are said to be found in the December Emails
The first plaintiff pleads that the representations were misleading or deceptive, or alternatively likely to mislead or deceive, as follows:
[40]Each of the representations pleaded in subparagraphs 37.1 and 37.2 was misleading or deceptive [or] alternatively likely to mislead or deceive in that:
[40.1]each of the second to fifth defendants did not intend to refrain from providing services to, or be engaged or employed by, any other company or entity, the business of which comprised or included as a principal undertaking, the same or substantially the same as that of the second plaintiff for a period of 5 years from completion of the sale of that defendant's 9 shares in the second plaintiff;
[40.2]each of the second to fifth defendants did not intend to ensure that they would not act as pleaded in paragraph 37.2 above.
The pleading then provides detailed particulars of the matters from which the intention of the defendants might be inferred: SOC [40]. The particulars are as follows:
Particulars of Intention
The intention of each defendant is to be inferred from the following:
(a)the second to fifth defendants obtained legal advice in respect of the draft agreement attached to the email pleaded in paragraph 36;
(b)the matters pleaded in paragraphs 11, 10A, 10B, 10C of the amended statement of claim dated 12 October 2020 and paragraphs 10, 10A, 10B, 10C of the amended defence filed 6 November 2020 in CIV 1788;
(c)settlement of the sale and purchase of the second to fifth defendants' shares pursuant to the agreement pleaded in paragraph 11 occurred on 17 December 2017;
(d)the second defendant took steps prior to or on 18 January 2018 to incorporate the first defendant;
(e)the matters pleaded in paragraph 30;
(f)none of the second, third or fifth defendants took steps to obtain employment other than by the first defendant after 17 December 2017;
(g)the second defendant on behalf of the first defendant offered employment to the third defendant in or about early 2018, and the third defendant accepted that offer in or about early 2018 on dates presently unknown to the plaintiff; and
(h)the second defendant on behalf of the first defendant offered employment to the fifth defendant in or about early 2018, and the fifth defendant commenced working for the first defendant on a date unknown in early 2018.
As to the application of the above particulars (a) to (h) to each defendant:
(i)particulars (a) to (h) apply to the second defendant;
(j)particulars (a) to (c), (f) and (g) apply to the third defendant;
(k)particulars (a) to (c) apply to the fourth defendant; and
(l)particulars (a) to (c), (f) and (h) apply to the fifth defendant.
Further particulars may be provided after discovery and the return of subpoenae.
The first plaintiff pleads the second to fifth defendants did not have a reasonable basis for making the representations: SOC [41]. The first plaintiff alleges it has suffered loss and damage as a result of the conduct: SOC [44].

Defence

A comprehensive Defence has been filed. At least initially, a counterclaim was also pleaded, but that is no longer pressed. The critical aspect of the Defence for present purposes is [40]. In that paragraph, the defendants respond to the allegation in [40] of the SOC concerning the misleading or deceptive conduct claim.
The Defence pleads as follows:
[40]As to paragraph 40 of the Statement of Claim, the defendants deny the matters alleged; and say further that at the time of entry into the 2017 Agreement they did not intend to engage in any conduct in contravention of the Extended Restraint.

F. Disposition of issue 1 - Court's power to inspect the documents

Background

During the course of the hearing, I raised with both counsel whether the Court should inspect the Withheld Communications for itself in order to determine the Application.
I raised that issue having regard to the oral submissions made by counsel at the hearing before Strk J on 26 July 2024 when the defendants' application was foreshadowed (but had not been filed).[31] I also raised the issue given the statement in the email to the Court from the plaintiffs' solicitors sent on 21 October 2024, which conveyed an indication from the defendants' solicitors that copies of the Withheld Communications would be available in Court, should the Court wish to refer to those documents.
[31] ts 189 - 190.
The plaintiffs submitted that I should not inspect the Withheld Communications. The defendants submitted, albeit not strongly, that it was open to the Court to inspect the documents, and that I should do so.

Whether the Court has power to inspect in the present circumstances?

The first question to address is whether the Court has power to inspect otherwise privileged documents for the purposes of determining a waiver question.
Following the hearing, I sought clarification from the parties as to whether the parties' submissions[32] extended to the proposition that the Court had no power to inspect documents where there is no dispute as to their privileged status, and where the only question before the Court is one of waiver of that privilege. During the hearing, senior counsel for the plaintiffs made reference to Whitby J's analysis in Wright Prospecting Pty Ltd v Hancock Prospecting [No 25][33] in this regard. Her Honour Justice Whitby made reference to O 26 r 12(2) RSC in that decision, in the context of a dispute as to whether documents were privileged, not in relation to a question of waiver. At the hearing, counsel for the defendants submitted that the Court was not 'shut out' from inspecting the documents in the present case.[34]
[32] Particularly the plaintiffs' submissions; see ts 237 and 238.
[33] Wright Prospecting Pty Ltd v Hancock Prospecting [No 25] [2024] WASC 132 [580] (Whitby J).
[34] ts 238.
To ensure the Court properly understood the position of the parties, the Court invited further submissions as to whether the Court had power to inspect otherwise privileged documents for the purposes of assessing both a question as to waiver (and the extent of any such waiver), and a question as to the source of that power.
To assist the parties, the Court drew attention, in the Federal context, to the decision of Stewart J in Terracom Ltd v ASIC[35] and the authorities cited therein, and the decision of the Full Federal Court on appeal in Terracom Ltd v ASIC.[36] Additionally, I referred to the decision of Jackson J in Vitruvian Investments Pty Ltd v Sharif[37] and Abraham J in Roberts-Smith v Fairfax Media Publications Pty Limited (No 29).[38]
[35] Terracom Ltd v ASIC [2022] FCA 208 [71] – [87] (which I will refer to as Terracom (No 1)).
[36] Terracom Ltd v ASIC [2022] FCAFC 151 (although the power question does not appear to have been the subject of the appeal) (which I will refer to as Terracom (No 2)).
[37] Vitruvian Investments Pty Ltd v Sharif [2023] FCA 471.
[38] Roberts-Smith v Fairfax Media Publications Pty Limited (No 29) [2022] FCA 218 [50] – [52].
I received further submissions from both parties, in response to the above invitation and pursuant to the procedural orders made on 12 November 2024. I refer in this regard to the plaintiffs' further outline filed on 21 November 2024 and the defendants' further outline also dated 21 November 2024.
Both parties advanced submissions to the effect the Court had power to inspect the Withheld Communications, for the purposes of assessing a question as to waiver and the extent of such a waiver. As will be seen, the plaintiffs maintained the position in their submissions that the power should not be exercised in the present circumstances.
As to the basis on which the power may be founded, the plaintiffs pointed to O 26 r 10 RSC, the inherent jurisdiction of the Court, as well as the terms of O 1 r 4A and r 4B RSC. The defendants made reference to O 26 r 10 and r 11 RSC, and to the Federal Court decisions referred to above, as well as to the decision of the Supreme Court of South Australia (Court of Criminal Appeal) in Legal Services Commission v JWH.[39]
[39] Legal Services Commission v JHW [2012] SASCFC 47; (2012) 223 A Crim R 534 (JHW).
In this last mentioned decision, the Court of Criminal Appeal concluded that the Court had no power to inspect privileged material for the purpose of deciding whether privilege has been waived, as the power of inspection is limited to the question whether the document is privileged.[40] That decision has been the subject of some subsequent analysis in the Federal Court, where it has been observed that no authority was cited in support of the proposition accepted by the Court in JHW, and the statements on the point in that case appear to have been obiter.[41]
[40] JHW [60], [75] and [81] (Doyle CJ, Vanstone and Anderson JJ).
[41] Terracom (No 1) [75] (Stewart J) and Roberts-Smith v Fairfax Media Publications Pty Limited (No 29) [50] (Abraham J).
Stewart J in Terracom (No 1) observed as follows, concluding that the Court did have the necessary power:
[75]No authority is cited by the Court and its statements on this point appear to be obiter, the firm basis for the decision having been that the primary judge erred in the question he asked when he examined the material. I have some doubt whether it is always the case that examination of the document cannot be relevant to the question of waiver. In particular circumstances, it may be that the content of the document is relevant to whether the party's conduct is inconsistent with maintenance of the privilege. If the content of a document is relevant to a point in issue, then there does not seem to me to be any reason why the court would lack the power to look at the document.
[76] In Verde Terra Pty Ltd v Central Coast Council (No 2) [2020] NSWLEC 10 at [87], Legal Services Commission v JHW is cited as authority for the proposition that the court is not permitted by law to inspect the privileged material for the purpose of determining the question of waiver, but no further reasoning is given. It occurs to me, however, that in Verde Terra the alleged waiver of privilege in respect of some of the documents at issue was decided under the Evidence Act 1995 (NSW) which, like the Commonwealth Act, provides in s 133 that if a question arises under Pt 3.10 of the Act dealing with privileges, which includes provisions dealing with waiver (e.g., s 122(2)), the court may order that the document be produced to it and may inspect the document for the purposes of determining the question. There would therefore seem to be no reason why the court could not examine the document under s 133 on a question of the waiver of privilege, provided that the content of the document might be relevant to the question at issue.
[77] In any event, neither of those cases deals with whether the court has a discretion to examine the document in question in circumstances where the party resisting the privilege claim does not consent to such an examination and the purpose of the examination is to ascertain its subject-matter relative to the subject-matter of the disclosure, and whether waiver in relation to the disclosed subject-matter necessarily results in waiver of the privilege in respect of the whole document.
[78] In view of the broad statements of the discretion in the High Court to which I have referred, the statement by the Court of Appeal [in Rinehart v Rinehart [2016] NSWCA 58 at [20]], and the great difficulty in determining the question of partial waiver without examining the document, I take the view that I have the power to examine it for that purpose.
The broad statements in the High Court as to the discretion, to which Stewart J referred above, are found in Grant v Downs[42] and Esso Australia Resources Ltd v Commissioner of Taxation.[43] In the former decision, the plurality noted that the power to examine documents had 'perhaps been exercised too sparingly in the past' and 'in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence'.[44] In the latter case, the plurality held that the court should not be hesitant to exercise the power to examine documents in respect of which there is a disputed privilege claim.[45]
[42] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 (Grant v Downs).
[43] Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 (Esso Australia Resources).
[44] Grant v Downs (689) (Stephen, Mason and Murphy JJ).
[45] Esso Australia Resources [52] (Gleeson CJ, Gaudron and Gummow JJ).
Stewart J's reference in his analysis to the decision of the New South Wales Court of Appeal was a reference to Rinehart v Rinehart,[46] and to the statement of Beazley P, Leeming and Simpson JJA that the Court's powers to examine the documents are 'wide and should not be unduly circumscribed'.[47]
[46] Rinehart v Rinehart [2016] NSWCA 58 (Rinehart).
[47] Rinehart [20] (Beazley P, Leeming and Simpson JJA).
There is much to be said for the approach adopted by Stewart J in Terracom (No 1). For my part, I cannot discern a persuasive reason why the evident power the Court has to inspect documents to determine whether a claim for privilege has been made out should be circumscribed to preclude inspection to assess whether any such privilege has been waived. Both processes involve the court making a decision as to the adequacy of an objection to an asserted ground of privilege.
Against this conclusion, it might be contended that, given the nature of the arguments which are advanced in a waiver context, and the applicable principles, the inspection of the relevant documents by the Court is less likely to assist the Court to reach a determination on those arguments and having regard to those principles. Whether the conduct supports a conclusion that maintenance of confidentiality is inconsistent thereto, might be said to not ordinarily require the privileged documents in question to be examined. A fortiori where the argument is based on an issue waiver, arising from a pleaded state of mind.
However, I do not accept, as a universal proposition, that the examination of the documents will never be relevant to the waiver analysis. For example, there may be circumstances in which an inspection of the privileged documents is appropriate in the interests of fairness, which the established authorities on the point recognise remains an aspect of the Court's consideration. Further, an analysis of the relevance of the documents may be required. The inspection may illuminate these matters. The power should be exercised cautiously, of course, given the underlying claim for privilege is a substantive legal right.[48]
[48] Glencore International AG v Federal Commissioner of Taxation [2019] HCA 26; (2019) 265 CLR 646.

In my view, the inherent jurisdiction of the Court is broad enough to empower the Court to inspect documents for the purposes of assessing whether the privilege in a document has been waived (where that privilege claim is otherwise undisputed). That inherent jurisdiction is not limited by the rules of the Court: O 1 r 3A RSC and s 16(1) of the Supreme Court Act 1935 (WA).
The Court's power to inspect documents, as outlined at [79] above, may also been seen as forming part of the power in O 26 r 10 RSC, which provides as follows:
10. Order for production to Court
At any stage of the proceedings in any cause or matter the Court may subject to rule 11 order any party to produce to the Court any document in his possession, custody or power, relating to any matter in question in the cause or matter and the Court may deal with the document when produced in such manner as it thinks fit.
The power in O 26 r 10 RSC is confined by O 26 r 11 RSC, which requires that the Court first be satisfied that the 'order is necessary either for disposing fairly of the cause or matter or for saving costs'.
The power in O 26 r 10 RSC is not as wide as the express power found in the Federal Court Rules 2011 (Cth) (FCR). Order 20 rule 35 FCR is in the following terms, noting the breadth of sub-rule (2) in particular:
20.35Production to Court
(1) A party may apply to the Court for an order that another party produce to the Court a document in the party's control relating to an issue in the proceeding.

(2) The Court may inspect a document to decide the validity of an objection to production, including a claim that the document is privileged from production.

I would also doubt that the power in O 26 r 12 RSC extends to the present situation. Order 26 r 12 RSC provides:
12.Claim of privilege
(1)Where —
(a) on an application for production of a document for inspection or to the Court; or
(b) in any list of documents supplied on discovery
a party claims privilege the party requiring production or discovery may traverse the claims to privilege by adducing evidence either that the claim to privilege is unfounded or mistaken, but in the absence of any evidence to that effect the claim to privilege shall be sustained.
(2) In determining any objection on the ground of privilege to the production or discovery of any document or class of document the Court may inspect the document.
As can be seen, the power to inspect which is afforded by O 26

r 12(2) RSC concerns the determination of 'any objection on the ground of privilege', and the relevant objection described in O 26 r 12(1) RSC is as to whether the claim to privilege is 'unfounded or mistaken'.
The language of O 26 r 12(2) is ill-fitted to a circumstance in which the objection proceeds on the assumption that privilege has been properly claimed but there has nonetheless been a circumstance of waiver, either express or implied.
The apparent limitations in the scope of O 26 r 12(2) RSC do not preclude a conclusion that the Court otherwise has power to inspect privileged documents to resolve a waiver question, where that is necessary. That sub-rule addresses the circumstance where a privilege claim is challenged as being unfounded or mistaken, but does not otherwise limit the powers of the Court.
By virtue of either O 26 r 10 RSC or the Court's inherent jurisdiction, the Court has the necessary power to inspect documents in circumstances where a claim for privilege is challenged on waiver grounds, but the underlying privilege is not said to be unfounded or mistaken.

Whether to exercise the power?

Having concluded the Court has power to inspect, it next falls to consider whether to exercise the power.
The parties were informed on 9 December 2024 that the Court had formed the view the power should be exercised. In my view, it was appropriate in the circumstances of this case, for the purposes of fairly disposing of the Application, to exercise the power to require that the Withheld Communications be produced to the Court for inspection. The principal features of the case which justified this conclusion were as follows:
(a)First, as a matter of principle, I had regard to the broad statements made by the High Court to which I have earlier referred, that the power to inspect privileged documents had been exercised too sparingly in the past and that there will be many instances in which the character of the documents will illuminate the purpose for which they were brought into existence. These broad statements also have application to the circumstance in which a waiver of privilege is being asserted.
(b)Second, as the parties had made arrangements with the Court for an alternative Judge to hear the Application, not being the trial judge, there was no risk that the inspection of the documents might preclude the trial judge from continuing to manage the actions and preside at the trial.
(c)Third, the descriptions of the documents in the schedule in Attachment A to these reasons indicate the documents were created or sent over a lengthy period of time. In particular, each of documents 2, 3 and 7 in the schedule refer to communications between 20 March 2017 and 13 November 2017, which is an approximate 8 month period. Inspection is justified in those circumstances to assess the degree of connection between the documents (and the constituent parts of each document) and the matters in issue in the proceedings,[49] and to assess whether fairness considerations point in favour of production or otherwise. I considered this to be a relevant feature of the present case bearing in mind the instances of disclosure waiver relied upon by the plaintiff occurred on 11 and 12 December 2017, being a point in time temporally disconnected from what appears to be the time at which the initial parts of some of the disputed documents came into existence.[50]
(d)Fourth, the Withheld Communications are limited in number and the inspection process (which involves a diversion of the limited resources of the Court from other matters) appeared to be a relatively manageable task.
[49] Noting the submission of the plaintiffs at PS [20] that 'it is likely that the Withheld Communications relate to the revised share sale agreement and the proposed sale of shares in SBWA' having regard to the 'timing and subject line of the Withheld Communications'. Inspection can assist to test this proposition.
[50] In this sense, I am referring to the emails which commenced the chains of emails referred to in documents 2, 3 and 7, which were apparently sent on 20 March 2017.
Directions were accordingly made on 11 December 2024 to facilitate the production to the Court of the Withheld Communications on a strictly confidential basis. A copy of the orders made is set out in Attachment D to these reasons. Having undertaken the inspection exercise, I have been assisted in the task at hand, as I will explain.

G. Disposition of issue 2 - Disclosure Waiver Ground

Background

The plaintiffs submit the defendants partially disclosed the legal advice contained in the Withheld Communications, such that the maintenance of privilege over those communications is inconsistent with that disclosure.
The plaintiffs contend the December Emails disclosed the substance (rather than mere existence) of legal advice regarding the revised sale agreement. Through this disclosure, the plaintiffs submit the defendants acted inconsistently with the confidentiality which legal professional privilege serves to protect and, thereby, waived privilege.
The plaintiffs rely on the statement of law in the joint judgment of Gleeson CJ, Gaudron, Gummow and Callinan JJ in Mann v Carnell[51] as follows:[52]
[28]At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received.
[29]Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
…
[34]The purpose of the privilege being to protect the Territory from subsequent disclosure of the legal advice it received concerning the litigation instituted by the appellant, there was nothing inconsistent with that purpose in the Chief Minister conveying the terms of that advice, on a confidential basis, to a member of the Legislative Assembly who wished to consider the reasonableness of the conduct of the Territory in relation to the litigation. (footnotes and citations omitted)
[51] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1.
[52] Mann v Carnell [28] - [29] and [34] (Gleeson CJ, Gaudron, Gummow and Callinan JJ).
The plaintiffs submit the waiver occurred in respect of the whole of the advice to which reference is made in the December Emails, including the reasons for the conclusions set out in those emails. Accordingly, the plaintiff submit, to the extent that the legal advice to which reference is made is recorded in the Withheld Communications, the maintenance of the privilege in respect of that advice is inconsistent with the disclosure of its substance in the December Emails.[53]
[53] PS [15] - [17].
The plaintiffs' position on this application is sought to be further advanced by reference to the context of the disclosure, which occurred during the course of the negotiations, which commenced in August 2017, leading to the Heads of Agreement being executed in October 2017, and finally proceeding to the execution of the 2017 Share Sale Agreement on 13 December 2017.[54]
[54] PS [18].
In particular, the plaintiffs emphasise that the December Emails deployed the legal advice received from Carter Newell to explain or justify the proposed amendments to the revised agreement. The plaintiffs' submissions state:[55]
[18]…The substance of the disclosed legal advice communicated to BrazIron that a lawyer had made amendments to the restraint in clause 7.1(j) and had a proper basis for including a warranty that the document “constitutes [a] legal, valid and binding agreement, enforceable in accordance with its terms”.
[19]The purpose for which the substance of the legal advice was disclosed or deployed in communications with BrazIron is irrelevant; privilege was waived because the disclosure, in and of itself, is inconsistent with the maintenance of confidentiality in that legal advice.
[55] PS [18] - [19].
Further, the plaintiffs explain that, given the timing and subject line of the Withheld Communications, it is likely that the Withheld Communications relate to the revised share sale agreement and the proposed sale of the shares in SBWA. The plaintiffs submit that the Withheld Communications may include legal advice beyond the content of the December Emails, and that legal advice should not be withheld.[56]
[56] PS [20] - [21].
The plaintiffs contend that a proper understanding of the legal advice from Carter Newell regarding the terms of the revised share sale agreement, and the ability to be satisfied that what was disclosed about the legal advice was not misleading or unfair, requires the plaintiffs to be able to inspect, and have reference to, the whole of the Withheld Communications.[57] Finally, the plaintiffs submit that the defendants' refusal to disclose the rest of the legal advice regarding the revised sale agreement and/or proposed sale of the shares in SBWA, as contained in the Withheld Communications, is inconsistent with having asserted the effect of that privileged material and having disclosed part of its contents by way of the December Emails.[58]
[57] PS [22].
[58] PS [23].
The defendants place a different gloss on the factual events. The defendants submit that the correspondence relied upon by the plaintiffs as giving rise to a waiver of privilege 'does no more than present the negotiating position of both parties as drafted by their lawyers'.[59] It is said that the 'presentation of those positions and the express or implied reliance upon legal advice and legal drafting does not amount to an inconsistency sufficient to constitute a waiver in the sense referred to in authorities such as Mann.'[60]
[59] DS [12].
[60] DS [12].
In essence, the defendants submit that the contents of the December Emails are not inconsistent with the confidentiality which the privilege serves to protect and do not amount to a waiver (particularly bearing in mind the need to consider issues of fairness with respect to inconsistency).
Further, and in any event, the defendants emphasise a question of relevance as part of their responsive submissions. The defendants explain that the legal advice which may, or may not, have been given to the defendants at the time of the negotiations 'does not relate to any issue central to the proceedings'.[61] This is significant, it is said, because:
[14]There is no issue pleaded or disclosed in the plaintiffs' submissions that relates to the content of the legal advice received by Ms Woolcock (as distinct from the express comments themselves made by Ms Woolcock in the [December Emails]). The highest that this aspect of the plaintiffs' argument about waiver is put is at paragraph 22 of their submissions where it is stated that inspection needs to occur to be able to have a 'proper understanding of Carter Newell's legal advice regarding the terms of the revised share sale agreement, and the ability to be satisfied that what was disclosed about the legal advice was not misleading or unfair'. No such issue is pleaded by the plaintiffs and, without more, it would appear that the plaintiffs are fishing. (original underlining)

Disposition

[61] DS [13].

In Poland v Hedley,[62] the Court of Appeal summarised the principles applicable to a determination as to whether legal professional privilege has been waived. The issue before the Court in that case concerned whether a pleading had amounted to a waiver, but the Court set out the principles applicable to waiver generally. The Court held:[63]
[72]Legal professional privilege exists to protect the confidentiality of communications between the lawyer and client. It is inconsistency between the conduct of the client and the maintenance of the confidentiality which effects a waiver of the privilege. The assessment of whether a party has waived privilege is determined by considering whether, viewed objectively, the conduct of the privilege‑holder is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Where the privilege‑holder's conduct objectively evinces the requisite inconsistency, the law will recognise the inconsistency and its consequences, even though such consequences may not reflect the subjective intention of the privilege‑holder. The assessment is to be made in the context and circumstances of the case, and in light of any considerations of fairness arising from that context or those circumstances. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether, objectively, there is inconsistency. There is not, however, some overriding principle of fairness operating at large. All the circumstances must be looked at, including whether any disclosure to a third party was on terms and in circumstances consistent with the preservation of confidentiality. (footnotes omitted)
[62] Poland v Hedley [2023] WASCA 69 (Quinlan CJ, Murphy and Beech JJA) (Poland).
[63] Poland [72].
In GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd,[64] a decision of the New South Wales Court of Appeal, Macfarlan JA set out several propositions relating to the determination of a waiver question, as follows:[65]
(1) The test is one of inconsistency between the privilege holder's conduct and its maintenance of the privilege, not one of general fairness or of relevance to an issue in the proceedings.
(2) Enquiring whether the privilege holder has made express or implied assertions about the contents of the confidential communications, and whether its conduct has therefore “laid open the communications to scrutiny”, assists in ensuring that the court's focus is on inconsistency rather than simply relevance. If the privilege holder is understood to be asserting something about the contents of the communications, it is but a short step to conclude that it would be inconsistent for it to prevent those contents being scrutinised.
(3) On the other hand mere relevance of the content of the privileged communications to an issue raised in the proceedings by the privilege holder does not equate to inconsistency – something more is needed. It is of the essence of legal professional privilege that, if maintainable, it entitles a party to withhold potentially relevant documents from inspection by the other party.
(4) The determination of whether there has been an express or implied assertion about the contents of privileged communications giving rise to a relevant inconsistency is an evaluative decision to be made after consideration of the whole of the circumstances of the case. No hard and fast rules can be formulated. Those circumstances will include the degree of relevance of any advice to the issues in the proceedings, the centrality of the relevant issues in the proceedings and the likelihood of advice having been given, informed, as the High Court said in Mann v Carnell, by considerations of fairness.
(5) Having considered all those circumstances, the court must decide whether it would be inconsistent with the privilege holder's conduct for it to maintain privilege. The line between relevance to an issue and inconsistency in this context may be very fine and therefore one on which views might well differ.
[64] GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266 (Macfarlan JA, McCallum JA and Simpson AJA agreeing) (GR Capital).
[65] GR Capital [57] (Macfarlan JA).

In both Poland and GR Capital, the intermediate appellate courts disagreed with the assessment of the primary judge in those cases as to waiver having been demonstrated. This tends to emphasise the 'very fine' line observation made by Macfarlan JA in the latter decision, as noted above.
There is force, in my view, in several of the submissions advanced by the plaintiffs on the Application, in support of the conclusion that waiver was effected by the disclosure of the substance of the defendants' legal advice. In particular, it is apparent from the 11 December Email, as appears in Attachment B to these reasons, that the second defendant was deploying the comments received from her solicitor as part of the negotiating process. That is, the advice received from Carter Newell, which appears in the form of comments to the marked-up version of the agreement sent by Ms Woolcock to Mr Morton, was being used to explain or justify the amendments proposed.
The use of the legal advice in this manner is not consistent with the maintenance of its confidentiality. Once a party deploys its legal advice in this way, the risk arises that waiver may be found.
It is correct to say, as the plaintiff submits, that the purpose for which the substance of the legal advice was disclosed or deployed is irrelevant - the focus is upon whether there was an inconsistency with the maintenance of confidentiality in the legal advice in question.[66] However, I do not accept the plaintiffs' proposition that a circumstance of waiver by disclosure does not require some assessment of the relevance of the privileged communications to the case before the Court, nor are considerations of fairness excluded.[67] The question of inconsistency may be informed by such matters, as appears from the statements of principle quoted above in Poland and GR Capital.
[66] Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101 [35] (Emmett J) (Bennett); and Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1336 [35] (Sundberg J).
[67] ts 274 - 276.
Having inspected the Withheld Communications, there is a fundamental premise of the Application which cannot be sustained. The premise is that the Disclosed Communications are said by the plaintiffs to only partially disclose the legal advice received from Carter Newell in relation to the revised share sale agreement and the proposed sale of shares in SBWA. The plaintiffs assert this premise at [17] and [20] to [23] of their submissions. That is, the plaintiffs have contended that the remainder of the legal advice is contained in the Withheld Communications.
That is not so.
Put simply, there is no discernible legal advice present in the 12 documents which constitute the Withheld Communications. What has been disclosed by the defendants, in the form of the marked-up version of the agreement which is extracted in Attachment B to these reasons, represents the whole of the written legal advice provided by the lawyers to their client, at least in the sense that the contents of the Withheld Communications are concerned.
This is a case in which, although I would accept there has been conduct on the part of the defendants which has laid open the privileged communications between the defendants and their lawyers to scrutiny, the ultimate assessment as to inconsistency, informed by matters of relevance, the centrality of the relevant issues in the context of the proceedings, and informed as well by considerations of fairness and whether it can be said the defendants' conduct amounts to an abuse in order to create an inaccurate perception of the protected communications, produces a conclusion that these particular privileged communications ought not be ordered to be disclosed to the plaintiffs.

H. Disposition of issue 3 - Issue Waiver Ground

Background

In their submissions, the plaintiffs observe that the scope and enforceability of the restraint in clause 7.1(j) of the 2017 Share Sale Agreement is an issue in dispute in these proceedings. I accept that submission. Further, the plaintiffs refer to the allegation that the defendants engaged in misleading or deceptive conduct by representing to the first plaintiff, through the 11 December Email, that they would not compete with the SBWA's business for 5 years.
Following on from this, the plaintiffs note the plea advanced by the defendants in defending the allegation, which I have earlier set out (at [40] of the Defence). The plaintiffs say that by pleading their intention not to engage in any conduct in contravention of the restraint at the time of entry into the 2017 Agreement, 'the defendants have put in issue their state of mind as to what conduct could, or would, contravene the Extended Restraint at the time of entry into the 2017 Agreement'.[68]
[68] PS [26].
In all of the circumstances, the plaintiffs submit 'it would be inferred that the legal advice received from Carter Newell was relevant to the formation of the defendants' state of mind, at or around the time of entry into the 2017 Agreement, as to what conduct could or would contravene the Extended Restraint'.[69]
[69] PS [29].
Ultimately, the plaintiffs submit that, by putting in issue their state of mind as to their intention not to contravene the restraint:[70]
…the defendants have put in issue the content of the legal advice – sought and obtained at the relevant time – that was material to the formation of their state of mind. That is, what they understood about what they could do without contravening the Extended Restraint, where they have made an implied assertion that their contemporaneous conduct was not in contravention of the Extended Restraint as they understood it.
[70] PS [30].
The defendants reject the proposition that the plea has exposed their state of mind as an issue in the proceedings, and thereby laid open to scrutiny their legal advice.

Disposition

Again, I can see force in the plaintiffs' submission that the relevant paragraph of the defence has brought the defendants' state of mind in issue. The paragraph represents more than a mere denial of the allegation advanced by the plaintiffs. A positive case is asserted that the defendants 'did not intend to engage in any conduct' in contravention of the restraint in question. Having made that assertion, the defendants have placed their state of mind squarely in issue, in my view. In the face of the present Application, the defendants did not seek to withdraw the plea, but rather have maintained it.
That does not translate into a final conclusion that the Withheld Communications must be produced for inspection by the plaintiffs. A necessary aspect of the Application, at least insofar as this ground is concerned, is that the plaintiffs contend it may be inferred that the legal advice provided by Carter Newell was relevant to the formation of the defendants' state of mind, at the relevant time.
Having inspected the Withheld Communications, this premise of the second ground to the Application cannot be sustained. There is no discernible legal advice in the Withheld Communications which is in any way relevant to the state of mind of the defendants in this regard. Indeed, there is no discernible legal advice in these documents whatsoever, other than the advice which has been disclosed by the defendants already in the form of the mark-ups to document 12 in Attachment A.
In the circumstances, I decline to order that the documents be produced for inspection by the plaintiffs on the Issue Waiver Ground.

Conclusion and orders

For the foregoing reasons, I will order that the Application for production of the Withheld Communications, for inspection by the plaintiffs, be dismissed. I will hear from the parties as to the cost orders which should now be made.
It light of the conclusions at [110] and [120] above, it may be thought as somewhat curious, at least on the information available to the Court at present, that the Application for inspection of these documents was resisted so stoutly by the defendants, and that another more efficient approach to the resolution of this interlocutory matter could not have been explored.

ATTACHMENT A
Schedule of Withheld Communications[71]

[71] This schedule replicates the schedule attached to the plaintiffs' minute of proposed orders and memorandum of conferral.

Item	Document ID	Title	Doc Date	Author	Recipient
1	RRM.0001.6280	Email from C Woolcock to M Couper re: SBWA	13/11/2017	Cyndie Woolcock <[email protected]>	"[email protected]" <[email protected]>
2	RRM.0001.6287	Email chain between C Woolcock to M Couper between 20/3/2017 to 13/11/2017 re: SBWA	13/11/2017	[email protected]	[email protected]
3	RRM.0001.6289	Email chain between C Woolcock and M Couper between 20/3/2017 to 13/11/2017 re: SBWA	13/11/2017	[email protected]	[email protected]
4	RRM.0001.6355	Email from M Couper to C Woolcock re: SBWA	13/11/2017	Matt Couper <[email protected]>	"[email protected]" <[email protected]>
5	RRM.0001.6359	Email from M Couper to C Woolcock re: SBWA	13/11/2017	Matt Couper <[email protected]>	"[email protected]" <[email protected]>
6	RRM.0001.6362	Email from M Couper to C Woolcock re: SBWA	13/11/2017	Matt Couper <[email protected]>	"[email protected]" <[email protected]>
7	RRM.0001.6284	Email chain between C Woolcock to M Couper between 20/3/2017 to 13/11/2017 re: SBWA	18/11/2017	Cyndie Woolcock <[email protected]>	"[email protected]" <[email protected]>
8	RRM.0001.6364	Email from M Couper to C Woolcock re: SBWA	18/11/2017	Matt Couper <[email protected]>	"[email protected]" <[email protected]>
9	RRM.0001.6291	Email chain between C Woolcock; J Morton; M Couper on 6/12/2017 re: Share sale agreement draft	6/12/2017	Cyndie Woolcock <[email protected]>	"[email protected]" <[email protected]>
10	RRM.0001.6292	Draft share sale agreement between Brazion Corporate Services and vendors, attached to email chain between C Woolcock; J Morton; M Couper on 6/12/2017 re: Share sale agreement draft	3/12/2017	Braziron Corporate Services Pty Ltd; Cyndie Woolcock, Jed Palmer, Wylie Woolcock, Latoya Palmer
11	RRM.0001.6339	Email from M Couper to C Woolcock re: mark up of sale agreement [CNE-Matters_Archive.FID176948]	8/12/2017	Matt Couper <[email protected]>	Cyndie Woolcock <[email protected]>
12	RRM.0001.6340	Share sale agreement (CN comments).DOCX	8/12/2017	Braziron Corporate Services Pty Ltd; Cyndie Woolcock, Jed Palmer, Wylie Woolcock, Latoya Palmer

ATTACHMENT B
11 December Email

ATTACHMENT C
12 December Email

ATTACHMENT D
Orders for inspection made on 11 December 2024

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LM
Associate to the Honourable Justice Lundberg
20 FEBRUARY 2025