CMA Assets Pty Ltd Formerly Known as CMA Contracting Pty Ltd v John Holland Pty Ltd [No 5] - [2013] WASC 88

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 5] [2013] WASC 88

CORAM: LE MIERE J

HEARD: 25 FEBRUARY 2013

DELIVERED : 20 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:

Evidence - Privilege - Legal professional privilege - Inspection of documents - Turns on own facts

Legislation:

Nil

Result:

Claim for legal professional privilege upheld

Category: B

Representation:

Counsel:

Plaintiff: Mr J C Giles
Defendant: Ms K F Banks-Smith

Solicitors:

Plaintiff: Minter Ellison
Defendant: Corrs Chambers Westgarth

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

Apple Inc v Samsung Electronics Co Ltd (No 2) [2012] FCA 1358
CMA Assets Pty Ltd formerly known as CMA Contracting Pty Ltd v John Holland Pty Ltd [No 3] [2012] WASC 501
Kennedy v Lyell (1883) 23 Ch D 387
Lyell v Kennedy (No 2) (1883) 9 App Cas 81
Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87
Trade Practices Commission v Sterling (1979) 36 FLR 244

LE MIERE J: The plaintiff had applied for orders that the defendant produce a large number of documents for inspection. The defendant objected to producing some of the documents and redacted parts of the other documents on the ground that they are subject to legal professional privilege. I heard argument on 13 December 2012 and delivered a judgment on 21 December 2012: CMA Assets Pty Ltd formerly known as CMA Contracting Pty Ltd v John Holland Pty Ltd [No 3] [2012] WASC 501. I found that there was sufficient doubt about the claim of legal professional privilege to justify the court inspecting the documents itself. I undertook a preliminary examination of the documents for the purpose of determining whether or not legal professional privilege applies to them.
I upheld the claim of legal professional privilege in relation to six documents. I found that the evidence did not establish sufficient facts from which I could make an informed judgment on whether legal professional privilege applies to the remaining documents. I directed that John Holland Pty Ltd (John Holland) be given an opportunity to put on further evidence in support of its claim of legal professional privilege.
John Holland filed a further affidavit of David Victor How sworn 1 February 2013. Mr How has given further evidence concerning the basis of the claims for legal professional privilege in relation to 'the Leightons Documents' and 'the Reports'. In annexures DVH‑1 and DVH‑2 to his affidavit, Mr How provides detailed descriptions of each of the Leightons Documents and the Reports in respect of which John Holland claims privilege, or in respect of which John Holland claims privilege in relation to the redacted parts. Mr How also sets out the basis for the claim of privilege.
Since I delivered my reasons for judgment on 21 December 2012 (CMA Assets Pty Ltd v John Holland Pty Ltd [No 3]) John Holland has withdrawn its claim to privilege in relation to a number of documents, or withdrawn its claim to be entitled to redact parts of documents. There remains a dispute in relation to the claim for privilege in relation to a number of documents or redactions in documents. The Leightons Documents in dispute are contained in a lever arch file entitled 'attachment DVH‑1 to the affidavit of David Victor How sworn 1 February 2013, volume 1'. The Reports in respect of which there is a dispute, or in relation to parts of which there is a dispute, are contained in four lever arch files entitled 'attachment DVH‑2 to the affidavit of David Victor How sworn 1 February 2013, volumes 2 ‑ 5'.
I may dispose of one matter briefly. A number of the disputed documents are emails which refer to attachments. Counsel for John Holland informed the court that all of the attachments referred to have been separately discovered. I invited the parties to confer about that matter. In particular, John Holland's solicitors should identify to CMA Assets Pty Ltd's (CMA) solicitors where the relevant attachments have been discovered. If any issue should arise out of that conferral then CMA may bring a further application in relation to the attachments in question.
Notwithstanding the additional evidence provided by Mr How, it is appropriate that I inspect the disputed documents for the purpose of determining the claims to legal professional privilege. It is appropriate because I had already embarked upon that task, and conducted a preliminary examination of the documents, before the further evidence contained in Mr How's affidavit sworn 1 February 2013.
There is little dispute between the parties about the principles which I should apply in determining the claims. In CMA Assets Pty Ltd v John Holland Pty Ltd [No 3] I said that communications between employees of John Holland and Leightons may be privileged on a number of bases and referred to four categories of documents. Those categories are a paraphrase of the categories of legal professional privilege described by Lockhart J in Trade Practices Commission v Sterling (1979) 36 FLR 244, 245 ‑ 246. In stating the basis upon which documents in respect of which John Holland claims privilege are privileged, Mr How refers to the categories I described at [17] in [2012] WASC 501. My category (d), which corresponds to Lockhart J's category (g), is documents which contain or record knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or agent. Counsel for CMA submits, in effect, that such documents are only privileged if they expressly disclose the legal advice or the legal advice may be inferred from the contents of the document taken as a whole. Both counsel referred me to the discussion of the relevant principles by Hodgson J in Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87. In discussing Lockhart J's category (g) Hodgson J referred to Kennedy v Lyell (1883) 23 Ch D 387 and Lyell v Kennedy (No 2) (1883) 9 App Cas 81 and said:
… it seems to me that the case is only authority for the proposition that knowledge, information or belief of a client, derived from privileged communications, are themselves privileged if to disclose them would involve, as a matter either of substance or of fairness to the client, disclosing the privileged communications themselves.
As a matter of principle, I would have thought that even if a person's knowledge or belief about a matter is derived from privileged communications, this knowledge or belief would not be protected by the privilege, if it is relevant to an issue before the court, and if to disclose it would not, as a matter of substance or fairness, involve disclosing the privileged communication. The knowledge or belief may become part of the person's general understanding of the world which guides his or her actions, and in that role may not in any realistic sense be qualified by or dependent on or even referable to its origin in the confidential communications.
In determining John Holland's claims I have applied the propositions set out by Hodgson J.
The other matter of principle addressed by the parties concerns the disclosure of a party's strategy. In relation to document 6(a) in DVH‑1 (Leighton Documents) Mr How said that the email is a confidential communication in relation to the strategy that John Holland was considering presenting to BHPBIO as a method to settle the claims that had been presented in November 2007. The email records John Holland's knowledge derived from advice received from Corrs Chambers Westgarth (Corrs). Mr How says that the communications sought to formulate further the advice sought from Corrs, and to prepare what was to be put to Corrs for the purpose of enabling Corrs to advise what was an appropriate settlement strategy. CMA says that John Holland's strategy is not itself privileged. Nor is a document recording John Holland's knowledge privileged just because that knowledge was derived from advice received from Corrs. The defendant says that the document is only privileged if it discloses advice provided by Corrs or advice requested from Corrs. A similar issue arises in relation to document 36.
Counsel for the plaintiff says that the court should not take too narrow a view of what constitutes legal advice. Counsel for John Holland referred the court to the judgment of Cowdroy J in Apple Inc v Samsung Electronics Co Ltd (No 2) [2012] FCA 1358. In that case Samsung claimed privilege over certain documents. In discussing the relevant legal principles, Cowdroy J referred to the dominant purpose test and observed that if the advice given by a legal advisor is predominantly for a financial, personal or commercial purpose, as opposed to being for the purpose of seeking legal services or assistance, it will not be protected. Cowdroy J considered a sample of the disputed documents and was satisfied that those documents were prepared in anticipation of litigation at a time when litigation was reasonably contemplated, or prepared after the commencement of litigation for the purposes of assisting in the preparation of the litigation, and it could not be said that such documents were prepared for a commercial or other purpose. Cowdroy J said:
Such documents provide information for legal purposes relating to the litigation, relating to the status of Samsung's patents, and include minutes of meetings where such matters were considered, and some contain advice concerning litigation strategy [71].
I consider that advice concerning litigation strategy is, unlike advice that is predominantly for a financial or commercial purpose, privileged. A document which discloses, either expressly or by inference from the contents of the document, advice concerning litigation strategy is privileged.
I will now set out my conclusion as a result of my inspection of the documents.

Leighton Documents

I have examined the disputed documents and considered them in light of the matters set out in Mr How's affidavit and the principles to which I have referred. I find that each of the documents is privileged. In relation to the email which is item 6b, I find the email to be privileged. The communication relates to John Holland's disruption claim against BHPBIO. It discloses information or beliefs based on advice received from Corrs, which is sufficiently connected to the advice such that the advice may be inferred from the email in the context of the matters referred to Mr How.

The Reports

I have examined the redacted portions of the Reports which are described in attachment DVH‑2 to Mr How's affidavit. I find that the redacted passages are privileged.