CMA Assets Pty Ltd Formerly Known as CMA Contracting Pty Ltd v John Holland Pty Ltd [No 4]

[2013] WASC 77

CMA ASSETS PTY LTD Formerly Known as CMA Contracting Pty Ltd -v- JOHN HOLLAND PTY LTD [No 4] [2013] WASC 77

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 77
Case No:	CIV:1297/2008	Heard:	ON THE PAPERS
Coram:	ALLANSON J	Delivered:	12/03/13
No of pages:	15	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	CMA ASSETS PTY LTD Formerly Known as CMA Contracting Pty Ltd JOHN HOLLAND PTY LTD
Catchwords:	Practice and procedure Discovery Without prejudice privilege Whether privilege waived Turns on own facts
Legislation:	Nil
Case References:	CMA Assets Pty Ltd v John Holland Pty Ltd [No 2] [2012] WASC 126 Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341 Council of the New South Wales Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236 DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384, (2003) 127 FCR 499 Field v Commissioner for Railways for NSW [1957] HCA 92; (1957) 99 CLR 285 Glengallan Investments Pty Ltd v Arthur Andersen [2001] QCA 115; [2002] 1 Qd R 233 Mann v Carnell (1999) 201 CLR 1 Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11 Osland v The Secretary to the Department of Justice (2008) 234 CLR 275 Shilkin v Taylor [2011] WASCA 255 Western Australia v Southern Equities Corporation Ltd (in liq) (1996) 69 FCR 245 Yokogawa Aust Pty Ltd v Alstom Power Ltd [2009] SASC 377; (2009) 262 ALR 738

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CMA ASSETS PTY LTD Formerly Known as CMA Contracting Pty Ltd -v- JOHN HOLLAND PTY LTD [No 4] [2013] WASC 77 CORAM : ALLANSON J HEARD : ON THE PAPERS DELIVERED : 12 MARCH 2013 FILE NO/S : CIV 1297 of 2008 BETWEEN : CMA ASSETS PTY LTD Formerly Known as CMA Contracting Pty Ltd

Plaintiff

AND

JOHN HOLLAND PTY LTD
Defendant

Catchwords:

Practice and procedure - Discovery - Without prejudice privilege - Whether privilege waived - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

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Category: B

Representation:

Counsel:

Plaintiff : No appearance
Defendant : No appearance

Solicitors:

Plaintiff : Minter Ellison
Defendant : Corrs Chambers Westgarth

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

CMA Assets Pty Ltd v John Holland Pty Ltd [No 2] [2012] WASC 126
Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341
Council of the New South Wales Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236
DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384, (2003) 127 FCR 499
Field v Commissioner for Railways for NSW [1957] HCA 92; (1957) 99 CLR 285
Glengallan Investments Pty Ltd v Arthur Andersen [2001] QCA 115; [2002] 1 Qd R 233
Mann v Carnell (1999) 201 CLR 1
Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11
Osland v The Secretary to the Department of Justice (2008) 234 CLR 275
Shilkin v Taylor [2011] WASCA 255
Western Australia v Southern Equities Corporation Ltd (in liq) (1996) 69 FCR 245
Yokogawa Aust Pty Ltd v Alstom Power Ltd [2009] SASC 377; (2009) 262 ALR 738


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1 ALLANSON J: In this application, CMA Assets Pty Ltd (CMA) seeks access to certain documents in the possession of John Holland Pty Ltd (John Holland).

2 BHP Billiton Iron Ore Pty Ltd (BHP) and John Holland contracted for John Holland to perform works, which included the demolition of a wharf and adjacent structures called berthing dolphins and mooring dolphins. John Holland engaged CMA under a subcontract to carry out works, including the demolition of the wharf and the dolphins.

3 The documents in issue relate to the settlement of disputes between John Holland and BHP. In an earlier decision, CMA Assets Pty Ltd v John Holland Pty Ltd [No 2] [2012] WASC 126, I held that the documents were privileged. CMA did not argue waiver of the privilege on that occasion, but now submits that the privilege has been waived for communications that relate to certain claims made by John Holland in its counterclaim, that is:

(a) delay costs;

(b) the cost of dredging and removal of debris, including the cost of securing the vessel Hippopotes;

(c) the amount paid by John Holland to Van Oord Australia Pty Ltd (Van Oord) for damages to the Hippopotes and the reasonableness of that settlement.

4 CMA also says privilege has been waived in John Holland's defence to CMA's claim in relation to variations and suspension costs for the demolition of the berthing dolphins, the additional costs for a decompression chamber, and delays relating to asbestos on the site.

5 This application was brought after the action had been set down for trial. It was at first heard orally, but that hearing was adjourned to enable further conferral which seemed capable of resolving the claim, at least in part. The court was then to determine the balance of the claim on the papers, although there is some question whether the contemplated conferral was completed.

6 There is a concurrent application relating to John Holland's claim of legal professional privilege for some documents. Some of the documents are subject to both applications. The legal professional privilege application is being determined by another judge.

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7 CMA also applies in relation to two documents which were discovered with parts of the documents obscured. The issues raised in that application are quite discrete and I will deal with it separately.

Without Prejudice Privilege and Waiver

8 The privilege protecting without prejudice communications excludes from evidence admissions by words or by conduct made by parties in the course of negotiations to settle disputes which are the subject of litigation, or which will become the subject of litigation if the dispute is not resolved: Field v Commissioner for Railways for NSW [1957] HCA 92; (1957) 99 CLR 285, 291 - 292; Shilkin v Taylor [2011] WASCA 255 [61]; Glengallan Investments Pty Ltd v Arthur Andersen [2001] QCA 115;[2002] 1 Qd R 233 [27] - [31]. The principles applying to the privilege were summarised by McLure J in Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd[2003] WASCA 11 [91] - [95].

9 The privilege is not absolute, and without prejudice negotiations may be 'pleaded into evidence' in such a way that the privilege is no longer available, by analogy with the rule concerning waiver of legal professional privilege: Western Australia v Southern Equities Corporation Ltd (in liq) (1996) 69 FCR 245, 249 - 250. The analogy with legal professional privilege must be imperfect. Legal professional privilege has been described as an important common law right or immunity, and essential in the administration of justice. While there is no denying the importance of the public policy considerations behind the recognition of without prejudice privilege, they are not of the same order. And the without prejudice privilege is, by definition, a bilateral privilege.

10 I accept, however, that one party to a without prejudice communication may waive the privilege by its conduct in litigation with a third party, at least where the other party to the privileged communication would not be prejudiced by its production, and it would not affect the rights of the two parties to the communication inter se: Western Australia v Southern Equities Corporation Ltd (in liq) (250); Yokogawa Aust Pty Ltd v Alstom Power Ltd[2009] SASC 377; (2009) 262 ALR 738 [90] - [96].

11 The test for waiver of legal professional privilege, where there has been no express waiver, is that set out in Mann v Carnell (1999) 201 CLR 1 [29]: waiver arises by reason of the inconsistency which the court perceives between the conduct of the party claiming privilege and the maintenance of the confidentiality. It is said that this perception of

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inconsistency is 'necessarily informed by considerations of fairness', but it is inconsistency and not some overriding principle of fairness operating at large which gives rise to the waiver. See also Osland v The Secretary to the Department of Justice (2008) 234 CLR 275 [44] - [45].

12 A party entitled to privilege will be held to have waived it where it makes an assertion, express or implied, or brings a case which is about the contents of the confidential communication or which necessarily lays it open to scrutiny: Commissioner of Taxation vRio Tinto Ltd[2006] FCAFC 86; (2006) 151 FCR 341 [54], [61]; DSE (Holdings) Pty Ltd v Intertan Inc[2003] FCA 384, (2003) 127 FCR 499 [58]. In such a case the party by its conduct has created an inconsistency between its acts and the maintenance of the confidence, informed by the 'forensics unfairness' of allowing that claim to proceed without disclosing the communication. But it is not sufficient that the making of, or contents of, the privileged communication have become an issue in the proceedings, or that the privileged communications are relevant, or could, as a reasonable possibility, be of relevance and assistance to the other party. That does not give rise to the necessary inconsistency or the unfairness of the type in question: Council of the New South Wales Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236 [47] - [48]. What is necessary is that the privilege holder has put either the contents of the communication or the character of the communication in issue by pursuing its own claim or by putting the other party in a situation where it must reasonably do so by way of defence.

The claim

13 CMA pleads a suite of claims against John Holland arising out of the subcontract between them and the works it carried out.

14 First, it pleads that it achieved practical completion under the subcontract, and in breach of the subcontract, John Holland has failed to pay the whole of the subcontract sum. Second, during the construction of the works, John Holland gave directions which involved variations of the works under the subcontract. Each of the variations increased the value of the works and John Holland has refused to pay the amount of approved variations. Third, CMA pleads that, to the extent that it did not comply with formal notice provisions under the subcontract, including in relation to extension of time, CMA and John Holland agreed to vary the subcontract, alternatively adopted a convention by which strict compliance was not required. It would be unconscionable for John Holland to rely on CMA's failure to comply, and John Holland is estopped

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from denying it is liable by reason of that failure. Fourth, during the construction of the works, CMA was delayed in reaching completion (as defined in the contract) as a result of default by John Holland.

15 Particular delays pleaded were caused by:

1. delay in commencing and carrying out Phase 4 of the works due to failure by John Holland to move a ship loading structure;

2. additional work caused by the construction of the berthing dolphins numbers 1, 2 and 6 delayed performance of works under the construction programme;

3. alternatively, delays in providing access to the transfer station delayed performance of works pursuant to the construction programme;

4. delay in access to the 'MD4A'.

16 CMA pleads that it was entitled to an extension of time under the subcontract, and John Holland failed, neglected or refused to extend time in compliance with the subcontract. Alternatively, it says that John Holland ought to have exercised its discretion to extend time and thereby breached an implied term of the contract to exercise that discretion reasonably.

17 There is an additional claim that CMA was delayed in, or prevented from, reaching completion as a result of:

1. variations directed by John Holland;

2. John Holland preventing access to the site or failing to provide access;

3. John Holland approving a methodology which required use of a dredge to collect debris from the harbour floor, and John Holland's failure to procure a dredge capable of doing so in a timely manner;

4. John Holland abandoning the construction programme, or not fixing a construction programme.

18 CMA claims, on a variety of alternative bases, that it was entitled to an extension of time: the requirement to achieve completion by a nominated date was dispensed with; John Holland failed, in breach of the subcontract, to grant an extension of time for delays caused by the
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variations; John Holland ought to have exercised its discretion to extend time; and John Holland breached an implied term to act fairly, reasonably and in good faith in assessing CMA's entitlement to an extension of time.

19 CMA further says that, pursuant to the express terms of the subcontract, it was entitled to be reimbursed for costs attributable to delay. John Holland required CMA to perform works which reasonably required an extension of the date of completion to 15 March 2008, or to June 2008, and was required to reimburse CMA for those costs and overheads until them.

20 CMA pleads that John Holland could, pursuant to the subcontract, direct CMA to suspend works. If the suspension was for John Holland's benefit, John Holland was required to reimburse CMA for costs and expenses and onsite overheads (suspension costs). CMA says that on 27 April 2007, John Holland directed CMA to suspend the work on the transfer station due to the presence of asbestos. Further, on 5 August 2007, John Holland directed CMA to suspend work on the Iron Ore Phase 2 variation. CMA says these suspensions were for John Holland's benefit, and CMA is entitled to the suspension costs occasioned. In breach of the subcontract, John Holland has failed to pay.

21 In the alternative to the claims for extension of time, delay and suspension, CMA claims that John Holland failed, neglected and/or refused to give CMA possession, use and control of sufficient parts of the site as was necessary for CMA to execute the works. In this way John Holland breached the contract causing loss and damage.

The claims of waiver

22 It is common ground between the parties that John Holland fell into dispute with BHP. John Holland made claims against BHP which included claims:

1. for extension of time;

2. in relation to dredging of the harbour and removal of demolition material deposited on the harbour floor;

3. in relation to excess reinforcement in berthing dolphins 1, 2 and 6;

4. in relation to removal of asbestos from the transfer station;

5. in relation to the costs of a decompression chamber.

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Each of those matters is also the subject of a dispute between John Holland and CMA, either by CMA's claim against John Holland, or in the cross-claim.

23 John Holland and BHP settled their dispute, with the settlement recorded in a settlement and release deed. That deed has been discovered. CMA asserts that the following matters, which are in issue on John Holland's pleading, are subject to the settlement between John Holland and BHP and thus the communications over which privilege has been claimed:

(a) the delay costs incurred by John Holland which it seeks to recover from CMA;

(b) the costs of dredging and removal of debris which John Holland claims from CMA, including the cost of securing the vessel Hippopotes. John Holland claims a proportionate share of that cost from CMA;

(c) the claims in relation to berthing dolphins 1, 2 and 6, the decompression chamber and the asbestos, all of which John Holland claimed from BHP;

(d) the amount John Holland paid to Van Oord for damage to the Hippopotes, and the reasonableness of the settlement.

24 While not conceding that it was obliged to do so, John Holland agreed to provide certain of the documents to CMA and waive privilege in those documents to the extent of that disclosure. The concession was in relation to:

1. documents regarding the negotiations between John Holland and BHP about the payment John Holland made in settlement with Van Oord, and whether any loss arising from that payment had been reduced or eliminated on its settlement with BHP;

2. documents regarding the amount John Holland claimed against BHP for debris removal costs.

25 CMA contends that the production of these documents does not resolve its application. It says that the waiver effected by the case John Holland has pleaded against it is not limited to only part of the negotiations between John Holland and BHP, or John Holland and Van Oord. In particular, CMA claims that there is an interrelationship between
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the various claims and they cannot be disconnected, with waiver of privilege in part only of the communications. It says that the settlement was in an undivided lump sum amount, and neither the settlement sum nor the negotiations can be divided into separate parts. Accordingly, CMA asserts that privilege has been waived over the whole of the negotiations between John Holland and BHP, and between John Holland and Van Oord.

26 CMA does not rely only on the claims made against it by John Holland in the counterclaim. It also says that John Holland claimed certain amounts from BHP, but in its defence denies that CMA has any entitlement against John Holland for the same matters. I will deal first with the defence.

The defence

The costs for the decompression chamber: variations 78, 96, 99, 100, 103, and 105

27 John Holland denies CMA's plea for these variations, each being additional costs for a decompression chamber covering the period February 2007 to March 2008. CMA pleads:

(i) these variations were supplied pursuant to a variation order which John Holland instructed in writing in July 2006;

(ii) CMA submitted the statements required by the subcontract;

(iii) the variations increased the subcontract sum by an amount which John Holland has refused to pay.

28 John Holland says it is not liable for the costs claimed because they were not a variation and were within the scope of the subcontract; and because the costs were caused by a breach of the subcontract and negligent performance of the demolition works.

29 Neither of the bases on which John Holland resists CMA's claim puts in issue the content or character of its negotiations with BHP. Its defence is based on the terms of its subcontract with CMA, and CMA's conduct. Statements or admissions for the purpose of settling the dispute between John Holland and BHP may be of relevance or assistance to CMA as a matter of evidence, but that is not, in itself, a sufficient basis to order that they be disclosed.

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Berthing dolphins 1, 2 and 6: variation 79

30 CMA claims that variation 79, additional works for berthing dolphins 1, 2, and 6, was performed following a written direction from John Holland. CMA says that it complied with cl 11.2(e) of the subcontract by submitting to John Holland the statements required by that subclause.

31 John Holland denies the claim and says CMA is not entitled to payments because CMA failed to notify John Holland of the claim as required by cl 9.8 of the subcontract; and the works were within the scope of works under the subcontract.

32 Again, the basis upon which John Holland has resisted the claim lies in the terms of the subcontract. There is no inconsistency in maintaining this plea while claiming confidentiality in the negotiations with BHP.

Suspension costs: asbestos and Iron Ore Phase 2

33 CMA pleads that under cl 10.16 of the subcontract, John Holland could direct CMA to suspend the progress of the whole or part of the work. If John Holland ordered the suspension for its own benefit, it had to reimburse CMA for any costs and expenses incurred thereby.

34 On or around 27 April 2007, John Holland directed CMA to suspend works on the transfer station due to the presence of asbestos. And on or around 5 August 2007, John Holland directed CMA to suspend works on the Iron Ore Phase 2 work. CMA claims 'suspension costs' on the basis that John Holland directed CMA to suspend work for John Holland's benefit.

35 John Holland denies that it directed the suspensions its own benefit. It pleads the directions to suspend work on the transfer station were in order for CMA to comply with CMA's health and safety obligations under the subcontract, and were not for John Holland's benefit, or by reason of a breach of the subcontract by John Holland.

36 John Holland says the suspension of the iron ore work was carried out under an agreement between the parties, made in or around June 2007, which included express provision for the suspension of that work. John Holland's direction to CMA to suspend that work was not a direction to which cl 10.16 of the subcontract applied.

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Misleading or deceptive conduct

37 CMA alleges misleading conduct by John Holland in providing construction drawings, together with the proposed terms of the subcontract, thus representing that the drawings were accurate and the work CMA would be required to undertake was as depicted.

38 To the extent that it pleads positively to that claim, John Holland says that CMA warranted that it relied on its own investigations and information when it entered the subcontract and did not rely on information or representations made by John Holland. John Holland further says that any reliance was not reasonable.

39 Again, by those pleadings John Holland has put neither the content nor the character of its negotiations with BHP in issue.

40 In summary, in none of the matters referred to by CMA as arising out of the defence has John Holland put the negotiations leading to its settlement with BHP in issue. In each case it denies liability for reasons arising out of its contractual relationship with CMA, and CMA's conduct. Even were I to assume that the communications between John Holland and BHP or Van Oord, to the extent they have not been disclosed, include material that might be relevant to or assist CMA, that is not a sufficient basis to find waiver. There is no relevant inconsistency in John Holland denying CMA's claim on the basis it has pleaded while seeking to maintain the confidentiality of without prejudice dealings with BHP.

41 The question raised by this application, in my opinion, is whether John Holland's plea in each case is inconsistent with it maintaining confidentiality in its dealings with BHP. This is not to be resolved by speculation about whether the content of the documents might assist CMA, even to the extent of containing admissions which affect John Holland's claims. It is to be resolved by identifying whether the legal and factual basis of each plea, expressly or impliedly, puts in issue the communications between John Holland and BHP which were made in circumstances to which privilege attaches, and which those entities seek to keep confidential.

The counterclaim

42 There are three aspects in which CMA asserts the counterclaim is inconsistent with the maintenance of confidentiality in the negotiations between John Holland and BHP.

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The delay claim - counterclaim 109 - 112; 130 - 132; 143; 150

43 John Holland pleads that it was a term of the subcontract with CMA, on its proper construction, that:

(a) the demolition and removal works would be carried out in accordance with the method, described in writing by CMA, and submitted to and not rejected by John Holland (cl 6.1 to 6.3, 8.1, sch H);

(b) CMA warranted all work would be done in a manner fit for the purpose of the works (cl 6.4);

(c) CMA would progress the works in a manner and at a rate of progress that was satisfactory to John Holland and would achieve completion of the demolition and removal works on a specified date, that is 14 March 2007 (cl 10.1, sch A);

(d) the works to be carried out by CMA included retrieving, carrying to shore and disposing of any material that fell to the seabed from the demolition and removal works (cl 2.1, 8.1, sch H).

44 In breach of these terms, CMA failed to demolish the dolphins in the manner described in its method statement; failed to remove large concrete fragments from the dredging area; and failed to remove all concrete debris and rebar from the seabed. By reason of those breaches, it became necessary to mobilise the vessel Westsea 10, and to prolong the operation of Westsea 10 and Hippopotes. John Holland's operations to drive berthing dolphin piles and construction activities were disrupted.

45 John Holland claims loss and damage including:

1. disruption of the activities of five barges (the Harrier, Mari, Nuri, Wren and Buckley) which were required to stand by or move to other areas, or work at a lower level of productivity;

2. the cost of that disruption was $1,514,294.65 (approximately);

3. the disruption had a flow on disruptive effect;

4. additional supervision costs of five named personnel.

46 Later, John Holland claims that delays caused disruption to activities which depended upon the completion of CMA's demolition work and as a
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result John Holland incurred additional costs. John Holland pleads that it suffered loss and damage particularised as:

(a) costs incurred with respect to the use of the dredge Hippopotes;

(b) costs incurred with respect to the use of the Westsea 10 and associated equipment;

(c) in the alternative, costs with respect to the use of those vessels and associated equipment on a quantum meruit basis;

(d) costs incurred in conveying the blast debris to shore and transferring it to John Holland's trucks;

(e) in the alternative, costs incurred in conveying the blast debris to shore and transferring it to its trucks on a quantum meruit basis;

(f) other back charges, comprising the load out claim and the site building claim;

(g) in the alternative those other charges on a quantum meruit basis;

(h) disruption costs.

The dredging claim - counterclaim 93 - 108; 143; 150

47 John Holland's pleads that, by an agreement made between CMA and John Holland on or about 13 March 2007, the subcontract was varied. In lieu of the obligation of CMA to carry out the demolition, removal and disposal works relating to the dolphins, the work would be carried out by John Holland at the cost of CMA; John Holland would engage Van Oord to carry out work using the bucket dredge the Hippopotes, and CMA would reimburse John Holland for those costs; mobilisation and demobilisation cost of the equipment would be apportioned; and nothing in the agreement affected CMA's obligations to carry out the whole of the works under the subcontract, save that the payments made by CMA to John Holland under the varied agreement would to that extent reduce John Holland's loss and damage from the breaches of the subcontract caused by the failure of CMA to perform the works.

48 Pursuant to the terms of the varied subcontract, John Holland engaged Van Oord to carry out removal of debris from the demolished concrete dolphins. John Holland claims for the costs incurred with respect to the use of the Hippopotes.

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49 Numerous large concrete pieces, which had been produced by the blasting, precluded reasonably efficient removal of other debris by bucket dredge, and disrupted subsequent dredging and other works to be carried out by the bucket dredge. Van Oord used the dredge Hippopotes, and a hydraulic oil line on it ruptured because of contact with a large piece of debris, or a pile stub which CMA had failed to remove. In consequence, BHP directed that the Hippopotes should not continue. Alternatively an investigation team assembled by BHP recommended that the debris be removed by other means, and the dredging of areas where there was debris be postponed. John Holland adopted and implemented that recommendation.

50 On or about 5 June 2007, John Holland and CMA further amended the subcontract and agreed in effect:

(a) removing the debris would be effected by the dredge Westsea 10 which John Holland would charter;

(b) CMA would reimburse John Holland for the costs incurred, at an agreed rate;

(c) mobilisation and demobilisation costs of the equipment would be apportioned; and

(d) CMA would reimburse John Holland the reasonable costs of the equipment necessary to enable the debris to be removed by Westsea 10.

51 John Holland chartered the Westsea 10 pursuant to the terms of that agreement and incurred costs, including the costs incurred by using a tug. John Holland pleads that CMA is liable under the varied contract to pay it those sums. Alternatively, it says it is liable on a quantum meruit basis.

52 John Holland also claims the cost of conveying blast debris to shore and transferring it, again pursuant to the terms of the varied subcontract. Alternatively it claims those costs on a quantum meruit basis.

53 Thus, in the material parts of its counterclaim (as identified by CMA in this application) John Holland's claims are based on the alleged failure by CMA to carry out works in accordance with its obligations under the subcontract, including the subcontract as varied by agreements on or about 13 March 2007 and 5 June 2007. None of the bases on which John Holland puts its claim puts in issue its negotiation of its own claim with

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BHP. In both its defence of CMA's claim, and its counterclaim, John Holland relies upon its own contractual relationship with CMA.

54 John Holland chose to release part of the privileged communications to CMA. There may be circumstances where such a partial release itself creates a necessary inconsistency where that released, on its own, may be misleading. That is not the basis on which this case has been argued.

Conclusion

55 The application was argued on the basis that privilege can be claimed against a third party to the without prejudice communication, and that the test for waiver is, by analogy, the same as for legal professional privilege. In none of these matters has John Holland pleaded a case that is inconsistent with maintaining confidentiality in its negotiations with BHP.

56 John Holland has, while maintaining it is entitled to claim privilege, disclosed some material. I am not in a position to judge whether that partial disclosure itself creates a relevant inconsistency, as I have not seen the documents, other than a handful which have been redacted.

57 To the extent it has not been resolved by the voluntary disclosure of documents by John Holland, I dismiss the application.