DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [No 3] - [2023] WASC 392

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   DFD RHODES PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 3] [2023] WASC 392
CORAM:   WHITBY J
HEARD:   14 SEPTEMBER 2023
DELIVERED          :   11 OCTOBER 2023
FILE NO/S:   CIV 2737 of 2013
BETWEEN:   DFD RHODES PTY LTD
First Plaintiff
MATTHEW JOHN KEADY AND DOROTHEA MARGARET CAMPBELL as executors of the estate of DONOVAN FRANCES DUNCAN RHODES
Second Plaintiffs
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
WRIGHT PROSPECTING PTY LTD
Second Defendant
HOPE DOWNS IRON ORE PTY LTD
Third Defendant
BIANCA HOPE RINEHART
Fourth Defendant
JOHN LANGLEY HANCOCK
Fifth Defendant
HOPE RINEHART WELKER
Sixth Defendant
GINIA HOPE FRANCIS RINEHART
Seventh Defendant
HAMERSLEY WA PTY LTD
Third Party
(BY ORIGINAL ACTION)
BIANCA HOPE RINEHART
First Plaintiff by Counterclaim
JOHN LANGLEY HANCOCK
Second Plaintiff by Counterclaim
AND
GEORGINA HOPE RINEHART
First Defendant by Counterclaim
HANCOCK PROSPECTING PTY LTD
Second Defendant by Counterclaim
HANCOCK MINERALS PTY LTD
Third Defendant by Counterclaim
THE HANCOCK FAMILY MEMORIAL FOUNDATION LTD
Fourth Defendant by Counterclaim
TADEUSZ JOZEF WATROBA
Fifth Defendant by Counterclaim
WESTRAINT RESOURCES PTY LTD
Sixth Defendant by Counterclaim
HMHT INVESTMENTS PTY LTD
Seventh Defendant by Counterclaim
150 INVESTMENTS PTY LTD
Eighth Defendant by Counterclaim
HOPE RINEHART WELKER
Ninth Defendant by Counterclaim
GINIA HOPE FRANCIS RINEHART
Tenth Defendant by Counterclaim
MAX CHRISTOPHER DONNELLY as trustee in bankruptcy of LANGLEY GEORGE HANCOCK
Eleventh Defendant by Counterclaim
HOPE DOWNS IRON ORE PTY LTD
Twelfth Defendant by Counterclaim
ROY HILL IRON ORE PTY LTD
Thirteenth Defendant by Counterclaim
MULGA DOWNS INVESTMENTS PTY LTD
Fourteenth Defendant by Counterclaim
MULGA DOWNS IRON ORE PTY LTD
Fifteenth Defendant by Counterclaim
WRIGHT PROSPECTING PTY LTD
Sixteenth Defendant by Counterclaim
DFD RHODES PTY LTD
Seventeenth Defendant by Counterclaim
MATTHEW JOHN KEADY AND DOROTHEA MARGARET CAMPBELL as executors of the estate of DONOVAN FRANCES DUNCAN RHODES
Eighteenth Defendants by Counterclaim
(BY COUNTERCLAIM)

Catchwords:

Practice and Procedure - Discovery - Legal professional privilege claimed over discovered documents - Documents ordered to be produced to adversary in private arbitration - Whether privilege lost

Practice and Procedure - Discovery - Documents - Legal professional privilege - Waiver - Whether documents lost quality of confidence by virtue of being produced in private arbitration - Whether documents lost quality of confidence by virtue of orders compelling production of documents - Whether parties claiming privilege demonstrated inconsistency of conduct in maintaining a claim for privilege

Practice and Procedure - Discovery - Documents - Legal professional privilege - Waiver - Whether party claiming privilege put their knowledge in issue in assertions made in submissions in answer to claim of laches - Whether submissions amounted to party claiming privilege putting forward a positive case as to knowledge - Whether an assertion that a party is put to proof on a matter constitutes conduct inconsistent with the maintenance of privilege

Practice and Procedure - Discovery - Documents - Legal professional privilege - Waiver - Whether legal professional privilege applies to copies of original documents copied for the purpose of storage on an electronic management system

Arbitration - Issue estoppel - Abuse of process - Whether court is bound by arbitral tribunal's ruling as to privilege

Legislation:

Commercial Arbitration Act 2010 (NSW)
Commercial Arbitration Act 2012 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Rhodes Parties' application for inspection of the HPPL Parties' discovered documents over which Bianca and John claim privilege is dismissed

Representation:

Original Action

Counsel:

First Plaintiff	:	K R Lendich SC & B J Tomasi
Second Plaintiffs	:	K R Lendich SC & B J Tomasi
First Defendant	:	C Colquhoun SC & D Farinha
Second Defendant	:	No appearance
Third Defendant	:	C Colquhoun SC & D Farinha
Fourth Defendant	:	C Withers SC & C Ernst
Fifth Defendant	:	C Withers SC & C Ernst
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Third Party	:	No appearance

Solicitors:

First Plaintiff	:	Taylor & Taylor Lawyers Pty Ltd
Second Plaintiffs	:	Taylor & Taylor Lawyers Pty Ltd
First Defendant	:	Corrs Chambers Westgarth
Second Defendant	:	Clayton Utz
Third Defendant	:	Corrs Chambers Westgarth
Fourth Defendant	:	YPOL Lawyers
Fifth Defendant	:	YPOL Lawyers
Sixth Defendant	:	Deutsch Miller
Seventh Defendant	:	Dentons Australia
Third Party	:	Allens

Counterclaim

Counsel:

First Plaintiff by Counterclaim	:	No appearance
Second Plaintiff by Counterclaim	:	No appearance
First Defendant by Counterclaim	:	No appearance
Second Defendant by Counterclaim	:	No appearance
Third Defendant by Counterclaim	:	No appearance
Fourth Defendant by Counterclaim	:	No appearance
Fifth Defendant by Counterclaim	:	No appearance
Sixth Defendant by Counterclaim	:	No appearance
Seventh Defendant by Counterclaim	:	No appearance
Eighth Defendant by Counterclaim	:	No appearance
Ninth Defendant by Counterclaim	:	No appearance
Tenth Defendant by Counterclaim	:	No appearance
Eleventh Defendant by Counterclaim	:	No appearance
Twelfth Defendant by Counterclaim	:	No appearance
Thirteenth Defendant by Counterclaim	:	No appearance
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	No appearance
Sixteenth Defendant by Counterclaim	:	No appearance
Seventeenth Defendant by Counterclaim	:	No appearance
Eighteenth Defendants by Counterclaim	:	No appearance

Solicitors:

First Plaintiff by Counterclaim	:	YPOL Lawyers
Second Plaintiff by Counterclaim	:	YPOL Lawyers
First Defendant by Counterclaim	:	Speed & Stracey Lawyers
Second Defendant by Counterclaim	:	Corrs Chambers Westgarth
Third Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fourth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fifth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Sixth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Seventh Defendant by Counterclaim	:	Corrs Chambers Westgarth
Eighth Defendant by Counterclaim	:	Speed & Stracey Lawyers
Ninth Defendant by Counterclaim	:	Deutsch Miller
Tenth Defendant by Counterclaim	:	Dentons Australia
Eleventh Defendant by Counterclaim	:	Corrs Chambers Westgarth
Twelfth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Thirteenth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Sixteenth Defendant by Counterclaim	:	Clayton Utz
Seventeenth Defendant by Counterclaim	:	Taylor & Taylor Lawyers Pty Ltd
Eighteenth Defendants by Counterclaim	:	Taylor & Taylor Lawyers Pty Ltd

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

Ampolex Ltd v Perpetual Trustees [1996] 137 ALR 28
Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 174 FCR 547
Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256
Citic Pacific Ltd v Secretary for Justice and Anor [2011] HKCFI 200
Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45
DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303
Ferella v Official Trustee in Bankruptcy [2010] 188 FCR 68
Fidelitas Shipping Company Limited v V/O Exportchleb [1966] 1 QB 630
GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77; (2020) 55 WAR 435
Hancock Prospecting Pty Ltd v Rinehart [2017] 257 FCR 442
Hancock v Rinehart [2017] NSWSC 530
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
Re Jimmy's Recipe Pty Ltd [2020] NSWSC 516
Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13
Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 10] [2018] WASC 407
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 13] [2021] WASC 214
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 19] [2023] WASC 114
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 7] [2016] WASC 305

Table of Contents

Background to the application

The HPPL Parties' discovery and Bianca and John's privilege claims

Issues for determination

Does the production of the Privilege Claim Documents by Bianca and John to HPPL in the Martin Arbitration give rise to a waiver of legal professional privilege over those documents such that privilege is lost?

Is Bianca and John's claim for privilege over the Privilege Claim Documents an abuse of process in circumstances where the tribunal in the Martin Arbitration has already ruled on the issue of privilege?

Have Bianca and John waived privilege over the Privilege Claim Documents by putting their knowledge in issue in their submissions in answer to the Rhodes Parties' claim of laches?

Conclusion and Final Orders

WHITBY J:

By further amended chamber summons dated 21 September 2023, DFD Rhodes Pty Ltd (DFD Rhodes) and its former director, the late Donovan Frances Duncan Rhodes (now represented by his executors Matthew John Keady and Dorothea Margaret Campbell) (together the Rhodes Parties) seek orders in CIV 2737 of 2013 (Rhodes Proceedings) that Hancock Prospecting Pty Ltd (HPPL) and Hope Downs Iron Ore Pty Ltd (HDIO) (together the HPPL Parties) be ordered to give inspection of documents discovered by them in the Rhodes Proceedings over which Bianca Rinehart and John Hancock have claimed legal professional privilege (application).
As has been the practice in the Rhodes Proceedings and the related proceedings in CIV 3041 of 2010 (WPPL Proceedings) (together the curial proceedings), I will refer to the parties by their first names with no disrespect intended.
The substantive orders sought in the application are that:
(1)pursuant to Order 26 rule 9(1) of the Rules of the Supreme Court 1971 (WA) (RSC) the HPPL Parties give inspection of all documents discovered by them in compliance with the 14 July 2023 Orders of the Honourable Justice Smith (July Discovery Orders);
(2)Bianca and John's claims for privilege identified in the affidavit of Timothy Price made 17 August 2023 be overturned for the reasons set out in paragraphs 14(a) - 14(d) and 14(f) of the Rhodes Parties' submissions of 4 September 2023; and
(3)further or alternatively to order 2, pursuant to Order 26 rule 12 of the Rules of the Supreme Court 1971 (WA), Bianca and John have waived privilege in those documents.
Bianca and John oppose the application. The HPPL Parties appeared at the hearing of the application. Senior counsel for the HPPL Parties made brief submissions. In essence, while the HPPL Parties did not seek to be heard substantively in relation to the application, they did not have any issue with the orders sought therein. Senior counsel for the HPPL Parties submitted that the rulings of the Martin Arbitration on privilege were binding in terms of issue estoppel and abuse of process. They did not advance these submissions in any further detail. All other parties to the Rhodes Proceedings neither support nor oppose the application.
The Rhodes Parties relied upon the following documents in support of the application:
(1)the affidavit of Godfrey Edward Taylor sworn on 4 September 2023 (First Taylor Affidavit);
(2)the affidavit of Godfrey Edward Taylor sworn on 13 September 2023 (Second Taylor Affidavit); and
(3)their outline of written submissions dated 4 September 2023 (Rhodes Submissions).
Bianca and John relied upon the following documents in opposition to the application:
(1)the Affidavit of Timothy Randolph Price sworn on 17 August 2023 (First Price Affidavit);
(2)the affidavit of Timothy Randolph Price sworn on 11 September 2023 (Second Price Affidavit); and
(3)their outline of written submissions dated 11 September 2023 (Bianca and John's Submissions).
For the reasons that follow, the Rhodes Parties have not established that Bianca and John's claim for privilege over documents discovered by the HPPL Parties should be overturned and therefore, their application for inspection of those documents is dismissed.
In these reasons, I deal with the following topics:
(1)background to the application;
(2)Bianca and John's claims of privilege over the HPPL Parties' discovered documents;
(3)issues arising for determination in the application;
(4)determination of the issues; and
(5)conclusion and orders.

Background to the application

The background to the curial proceedings has been set out in detail in several published decisions.[1] I do not propose to repeat the entire background of the disputes giving rise to the curial proceedings as it is long and complex. I will only refer to the background which is relevant to the determination of the application.
[1] For example, in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 10] [2018] WASC 407 [4] - [84] (2018 Stay Decision) and Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77; (2020) 55 WAR 435 [47] - [93] (2020 Stay Appeal).
Mr Lang Hancock was the founding director of HPPL. Mr Peter Wright was the founding director of Wright Prospecting Pty Ltd (WPPL). From about 1958, HPPL and WPPL carried on the business of exploring and prospecting for minerals, investing in property and other assets, mining for minerals and receiving royalties in partnership (the Partnership).
In 1969, the Partnership entered into an agreement with, inter alia, the Rhodes Parties in relation to temporary reserves including those that would later form part of the Hope Downs Tenements. The Rhodes Parties allege that this agreement granted the Partnership the right to mine iron ore from the temporary reserves in return for the payment of royalties to DFD Rhodes.
Mr Wright died in September 1985. HPPL became the managing partner of the Partnership.
In the 1980s Hancock Mining Ltd (HML) and Hancock Resources Ltd (HRL), both subsidiaries of HPPL, were granted exploration licences covering the areas of land that were formerly the temporary reserves. The shares in HRL and HML were held by Hancock Family Memorial Foundation Ltd (HFMF).
The exploration licences were transferred from HRL and HML to HPPL, via Hope Downs Ltd (HDL) (another company in the Hancock Group[2]) by a series of transactions that occurred between 1992 and 1996.
[2] Hancock Group is defined in the Hope Downs Deed at cl 1.1. to mean HPPL and any other 'Related Body Corporate' of HPPL.
In 1997, HPPL transferred those exploration licences to HDIO, also a subsidiary of HPPL. In 2006, the State of Western Australia granted HDIO a mining lease over that land, in exchange for surrender of the exploration licences. The mining lease is over what is referred to in the curial proceedings as the Hope Downs Tenements.
In the WPPL proceedings, WPPL says that HPPL represented to WPPL and acknowledged that the opportunity to explore for minerals and acquire mining leases in the Hope Downs Tenements belonged to the Partnership. WPPL says that the rights acquired by HML and HRL in respect of the exploration licences were rights to which the Partnership was and remains entitled. As a result, WPPL says that HDIO holds its interest in the Hope Downs Tenements on trust for the Partnership.
In the Rhodes Proceedings, the Rhodes Parties also say that the opportunity to exploit the Hope Downs Tenements was a right that belonged to the Partnership. The Rhodes Parties say that, in causing HML and HRL (subsidiaries of HFMF) to acquire the Hope Downs Tenements, Mr Lang Hancock breached his fiduciary duties owed to HPPL.
The Rhodes Parties also say that HPPL and WPPL owed them fiduciary and contractual duties and seek an order that, inter alia, the Hope Downs Tenements are held on trust for the Rhodes Parties to the extent of their royalty entitlements.
The Rhodes Parties and the HPPL Parties both say that HML and HRL held the Hope Downs Tenements on trust for HPPL. The dispute between them is whether that beneficial interest of HPPL was an asset of the Partnership - the Rhodes Parties say it was, the HPPL Parties say it was not.
But that is not the end of the matters that fall for determination in the Rhodes Proceedings. John, Bianca, Hope Rinehart Welker and Ginia Hope Frances Rinehart (Gina's children) are also defendants in the Rhodes Proceedings.
The brief background to the dispute between Gina and her children is as follows. In 2003, John made various allegations concerning alleged wrongdoing by Gina and HPPL in relation to the series of transactions by which the exploration licences were transferred from HRL and HML to HPPL.
This precipitated negotiations between Gina and her children which, in August 2006, culminated in a number of parties entering into a deed, referred to in the curial proceedings as the Hope Downs Deed, by which they agreed to settle disputes about the title to the Hope Downs Tenements. The parties to the Hope Downs Deed include HPPL, Gina, HFMF, Bianca, Ginia and Hope. John adopted the Hope Downs Deed in April 2007 by executing the 2007 HD Deed as described in the curial proceedings.[3]
[3] 2018 Stay Decision [35].
The purported effect of the Hope Downs Deed was that, in consideration for the acknowledgments, releases and undertakings given by the parties to the deed, HPPL and Gina agreed to distributions to Bianca and John provided for in the deed (cl 5).
The Hope Downs Deed contains an arbitration clause (cl 20) that provides that any disputes under the Hope Downs Deed shall be resolved by confidential mediation and, if unsuccessful, confidential arbitration.
In 2014, prior to the commencement of the Rhodes Proceedings, Bianca and John commenced proceedings in the Federal Court of Australia against, inter alia, the HPPL parties and Gina (Federal Court Proceedings). As part of the Federal Court Proceedings, Bianca and John claimed that the Hope Downs Tenements were held on trust for Gina's children and challenged the validity of the Hope Downs Deed.
In the Federal Court Proceedings, Bianca and John were seeking relief from a number of parties, all of whom (except one) was a party to the Hope Downs Deed (in the sense that they were actual parties to the deed or, within the meaning of the Commercial Arbitration Act 2010 (NSW) (the NSW Act), were parties that claimed 'through or under' a party to the deed).[4]
[4] The Act, s 2(1).
The Full Court of the Federal Court ordered that the Federal Court Proceedings be stayed under s 8(1) of the NSW Act pending referral to arbitration or until further order.[5] The decision of the Full Court of the Federal Court in the Federal Court Proceedings was upheld by the High Court.[6]
[5] Hancock Prospecting Pty Ltd v Rinehart [2017] 257 FCR 442 [327] (Full Federal Court Decision).
[6] Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13(HC Decision).
Bianca and John's claims in the Federal Court Proceedings were referred to arbitral proceedings constituted before the Honourable Wayne Martin AC KC, Dr Michael Hwang SC and the Honourable Dr Kevin Lindgren AM KC (Martin Arbitration). The Martin Arbitration occurred in three blocks of time between August 2022 and March 2023. The decision in the Martin Arbitration is reserved.

In 2016, Le Miere J made an order in each of the curial proceedings that Gina's children be joined as defendants on the basis that their asserted proprietary interest in the Hope Downs Tenements was inconsistent with the interests claimed in the Hope Downs Tenements by not only Gina and the HPPL parties, but also those claimed by WPPL and the Rhodes Parties. Le Miere J held that the joinder of Gina's children to the curial proceedings was necessary to ensure all matters in dispute could be completely determined.[7] The result is that the HPPL Parties, Gina's children and WPPL are defendants in the Rhodes Proceedings.
[7] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 7] [2016] WASC 305.
In the curial proceedings, Bianca and John filed defences and they also filed counterclaims against Gina and the other parties, including all of the parties to the Hope Downs Deed. The counterclaims raised the same claims that were raised in the Federal Court Proceedings.[8]
[8] 2020 Stay Appeal [90] - [93].
On 21 December 2018, Le Miere J stayed Bianca and John's counterclaims in the curial proceedings against the parties to the Hope Downs Deed pursuant to s 8(1) of the Commercial Arbitration Act 2012 (WA) (the WA Act). His Honour also stayed the counterclaims against other parties pursuant to the court's general power to control its own proceedings.[9] His Honour did not stay Bianca and John defences filed in the curial proceedings. Le Miere J's decision to stay only the counterclaims raised by Bianca and John in the curial proceedings was upheld by the Court of Appeal.[10]
[9] 2018Stay Decision [190], [219].
[10] 2020 Stay Appeal.
On 29 January 2021, Bianca and John filed their amended defences in the Rhodes Proceedings. Bianca and John plead, by way of defence against the Rhodes Parties, that Gina breached her fiduciary and equitable duties as trustee of the HFMF Trust by firstly, causing the Hancock Group companies, which held her children's interest in the Hope Downs Tenements, to incur large debts to HPPL and secondly, by HPPL forgiving those debts in exchange for the transfer of the Hope Downs Tenements.
On 26 March 2021, the Rhodes Parties filed an amended reply to those defences (Rhodes Amended Reply). The Rhodes Parties plead that any allegation by Bianca and John that Gina breached her fiduciary duties to them as beneficiaries of the HFMF Trust is without foundation because the Hope Downs Tenements never formed part of the property of the HFMF Trust. The Rhodes Parties say that HML and HRL always held the Hope Downs Tenements on trust for HPPL.[11]
[11] DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97 [78] (2022 Stay Appeal).
The Rhodes Parties also pleaded certain matters in the Rhodes Amended Reply that Le Miere J found concerned subject matters that were the subject of the arbitration agreement in the Hope Downs Deed. Le Miere J held that, in so pleading, the Rhodes Parties were claiming through or under HPPL and therefore those matters were susceptible to resolution by the arbitration agreement and ordered that they be referred to arbitration.[12] The Court of Appeal upheld the decision of Le Miere J to refers those matters to arbitration (save for one paragraph of the Rhodes Parties' reply).[13]
[12] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 13] [2021] WASC 214 [93], [116].
[13] 2022 Stay Appeal [176] - [182].

The HPPL Parties' discovery and Bianca and John's privilege claims

On 14 July 2023, Smith J ordered HPPL to provide discovery of certain documents (July Discovery Orders). Order 1 of the July Discovery Orders was in the following terms:
Pursuant to Order 26 r 7(3)(b) of the Rules of the Supreme Court 1971 (WA), on or before 21 July 2023, the first and third defendants (HPPL and HDIO) give discovery of all documents relied on or received by them as evidence or otherwise in the confidential arbitral proceedings constituted before the Honourable Wayne Martin AC KC, Dr Michael Hwang SC and the Honourable Dr Kevin Lindgren AM KC relevant to the issues arising in or by paragraph 3.5 of Rhodes' Amended Reply filed 26 March 2021 in this proceeding.
By paragraph 3.5.3 of the Rhodes Amended Reply, the Rhodes Parties plead that the Hope Downs Tenements are not held on constructive trust for Bianca and John (and/or Gina's children) because Bianca and John (and/or Gina's children) have been guilty of laches and acquiescence.
In compliance with the July Discovery Orders, the HPPL Parties provided informal discovery of 581 documents. That discovery was provided in three tranches:
(a)on 26 July 2023 by email HPPL provided a list of 130 documents (numbered 1 - 130);
(b)on 28 July 2023 by email HPPL provided a list of a further 376 documents (numbered 131 - 506); and
(c)on 4 August 2023 by email HPPL provided a list of a further 75 documents (numbered 507 - 581).[14]
[14] First Taylor Affidavit [53] - [55], [57].
Bianca and John's solicitors reviewed those documents to determine whether they intended to make any privilege claims before the Rhodes Parties were provided with inspection.[15]
[15] First Taylor Affidavit [53] - [55], [57], [61], [62] - [67].
Bianca and John claimed privilege over 419 of the 581 documents (Privilege Claim Documents) and relied upon the First Price Affidavit, including its attached privilege log,[16] in support of the claim for legal advice and litigation privilege.
[16] First Price Affidavit, Annexure 'TRP1'.
On 28 July and 1 August 2023, the HPPL Parties provided inspection to the Rhodes Parties of the documents over which Bianca and John did not claim privilege.
Of the documents over which Bianca and John claim privilege:
(a)two documents contain the prefix 'AJC' - these are documents provided by Mr Alan Camp, who was an advisor to John, under subpoena;[17]
(b)approximately 50 documents contain the prefix 'BUT' ‑ these are documents produced by Mr Robert Butcher, who was an advisor to John, under subpoena;[18]
(c)one document contains the prefix 'HPPL'; and
(d)the remainder (about 350 documents) contain the prefix 'JHBR' - these are documents originally produced by John and/or Bianca.
[17] First Price Affidavit [29] - [38].
[18] First Price Affidavit [13] - [21].

Issues for determination

Although the Rhodes Parties do not accept that the Privilege Claim Documents are privileged in the first place, this is not a ground upon which they rely in support of the application. For the purposes of this application, they say that privilege cannot be maintained by Bianca and John against the Rhodes Parties for either or all the following reasons:
(1)there has already been a ruling in the Martin Arbitration against Bianca and John on the question of privilege and once lost, privilege is lost forever and cannot be reasserted; [19]
(2)the Privilege Claim Documents are now in the hands of the HPPL Parties, Bianca and John's adversary, and no longer have the requisite quality of confidence to maintain a claim for privilege;[20]
(3)this Court would be reluctant to depart from a ruling of the Martin Arbitration on a substantive question of law. The Martin Arbitration has ruled that privilege was lost for various reasons [redacted];[21]
(4)Bianca and John's attempt to have this Court make the same ruling as was made in Martin Arbitration is an abuse of process;[22]
(5)Bianca and John have waived privilege over the Privilege Claim Documents by putting knowledge in issue in their submissions in answer to the Rhodes Parties' claim of laches;[23] and/or
(6)the copies of the communications held by HPPL were not produced for a privileged purpose and can never have attracted privilege.[24]
[19] Rhodes Submissions [14(a)].
[20] Rhodes Submissions [14(b)].
[21] [redacted].
[22] Rhodes Submissions [14(d)].
[23] Rhodes Submissions [14(e)], the application at [2].
[24] Rhodes Submissions [14(f)].
It is also important to note that the Rhodes Parties do not contend, on this application, that privilege could not be maintained because of any fraud on the part of Mr Camp. That is, the Rhodes Parties did not seek to run the iniquity case in respect of Mr Camp [redacted].[25]
[25] [redacted].
In response to the application, Bianca and John say that privilege has not been lost in or waived over any of the Privilege Claim Documents.
The third and sixth of these contentions do not require detailed consideration. I do not accept either of those contentions for these reasons.
Firstly, the Rhodes Parties do not contend that the Court's jurisdiction to determine whether Bianca and John can maintain privilege in the Privilege Claim Documents is ousted or fettered by the ruling of the tribunal in the Martin Arbitration.[26] While it is open to the Rhodes Parties to challenge Bianca and John's claim for legal professional privilege in the Rhodes Proceedings on the same basis as the HPPL Parties did in the Martin Arbitration, this court is not bound by the findings of, or procedural orders made in, the Martin Arbitration. The reliance by the Rhodes Parties on the comments made by Smith J in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 19][27] and reference to those comments as giving rise to an 'approach'[28] are misplaced. Her Honour did not make a finding as to the 'approach' that must be taken, rather her Honour was indicating to the parties what may be a pragmatic 'approach' to such foreshadowed applications. It may well be, as the Rhodes Parties submit, inherently unlikely that a court would, in fact, reach a different conclusion to that of the arbitral tribunal. But it is also possible that a court would reach a different conclusion based on the evidence adduced on such an application. If an application is made to challenge Bianca and John's claim for privilege on the same grounds as were considered in the Martin Arbitration, this Court is not bound by the arbitral rulings and will make its determination having regard to the merits of the application. This finding is sufficient to dispose of the third contention raised by the Rhodes Parties.
[26] Rhodes Submissions [68].
[27] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 19] [2023] WASC 114 [86].
[28] Rhodes Submissions [67].
Secondly, the Rhodes Parties made brief written submissions in relation to privilege being lost over copies of documents provided to the HPPL Parties.[29] The substance of those submissions was that the copies of the Privilege Claim Documents now in the hands of the HPPL Parties are not themselves privileged, as those copies came into existence for the purpose of providing them to HPPL as part of the dispute between the HPPL Parties on the one hand, and Bianca and John on the other. Senior counsel for the Rhodes Parties did not advance those submissions further on the hearing of the application.
[29] Rhodes Submissions [87] - [88].
I do not accept that privilege over a document is lost merely by reason of a copy of that document being provided pursuant to an order in the Martin Arbitration compelling Bianca and John to do so. Further, the contention that the Privilege Claim Documents were 'copied' arises because of their storage on an electronic document management system. It cannot be that privilege is lost merely because of such storage. Further, to make such a finding would be at odds with the law that privilege is not waived or lost as a result of an inadvertent disclosure (which I discuss further below) ‑ if it were the case that privilege was lost because copies were made for the purpose of disclosure (rather than for the dominant purpose of legal advice or litigation), an opponent would be entitled to retain copies of mistakenly disclosed documents. This disposes of the sixth contention raised by the Rhodes Parties.
That leaves the remaining contentions outlined in (1), (2), (4) and (5) above.
In relation to the first two contentions made by the Rhodes Parties in support of the application, while they are not framed in terms of the privilege having been waived by Bianca and John as a result of the Privilege Claim Documents being in the hands of HPPL, for reasons that I will detail, that is the enquiry the court is to make.
Therefore, in my view, the remaining contentions of the Rhodes Parties give rise to the following issues which I must consider in determining the application:
(1)Does the production of the Privilege Claim Documents by Bianca and John to HPPL in the Martin Arbitration give rise to a waiver of legal professional privilege over those documents such that privilege is lost? This issue arises as a result of the first two contentions made by the Rhodes Parties.

(2)Is Bianca and John's claim for privilege over the Privilege Claim Documents an abuse of process in circumstances where the tribunal in the Martin Arbitration has already ruled on the issue of privilege?
(3)Have Bianca and John waived privilege over the Privilege Claim Documents by putting their knowledge in issue in their submissions in answer to the Rhodes Parties' claim of laches?

For the sake of completeness, the basis upon which the HPPL Parties support the application can be dealt with briefly. The contention that issue estoppel applies is rejected. This is because the claim for privilege by Bianca and John in the Rhodes Proceedings is a claim made to withhold production of the Privilege Claim Documents from the Rhodes Parties. In the Martin Arbitration the dispute was between Bianca and John on the one hand, and Gina and HPPL on the other ‑ therefore, issue estoppel does not apply where the parties to the dispute are not the same.[30] The abuse of process contention is subsumed within the same contention made by the Rhodes Parties, which I deal with below.

Does the production of the Privilege Claim Documents by Bianca and John to HPPL in the Martin Arbitration give rise to a waiver of legal professional privilege over those documents such that privilege is lost?

[30] Fidelitas Shipping Company Limited v V/O Exportchleb [1966] 1 QB 630, 642.

Bianca and John have, pursuant to procedural orders made in the Martin Arbitration, produced copies of the Privilege Claim Documents to HPPL. As a result, all of the Privilege Claim Documents are now in the hands of HPPL.[31]
[31] First Taylor Affidavit [47].
The Rhodes Parties contend that, because of the production of the Privilege Claim Documents to HPPL, privilege has either been lost and/or those documents no longer have the necessary element of confidence. These two contentions rely upon the same finding being made, that being in the hands of HPPL, Bianca and John's adversary, the Privilege Claim Documents no longer carry the confidence required for Bianca and John to maintain privilege. The result being that the privilege is lost forever and cannot be revived.
Senior counsel for the Rhodes Parties submits that the fact that the documents were produced pursuant to a confidential arbitration does not alter the position that privilege cannot be maintained, as an arbitration is merely the carrying into effect of an agreement between parties to have their dispute resolved in a particular forum.[32]
[32] Rhodes Submissions [62], referring to Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 [162] [l76].
The Rhodes Parties contend that, although the Martin Arbitration was heard and is being determined in private, the confidence relevant to legal professional privilege is that of preventing one's adversary from seeing the confidential communications between a client and his or her legal representative or otherwise brought into existence for the dominant purpose of litigation.[33] Senior counsel for the Rhodes Parties submits that the arbitration agreement had no impact on the substantive question of privilege, and the fact that Bianca and John were ordered to provide those documents to HPPL in the Martin Arbitration does not alter that the necessary confidence in the Privilege Claim Documents has been lost.[34] The Rhodes Parties submit that the conduct of Bianca and John, in producing those documents to HPPL, is inconsistent with the maintenance of confidentiality which the privilege is intended to protect.[35]
[33] Rhodes Submissions [63], referring to Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 174 FCR 547 [50], [64] (Cadbury).
[34] Rhodes Submissions [63].
[35] Rhodes Submissions [64].
Senior counsel for the Rhodes Parties referred me to the cases of Cadbury, Citic Pacific Ltd v Secretary for Justice and Commissioner for Police[36] and Ampolex v Perpetual Trustees[37] as authority for the proposition that confidentiality from an adversary is essential to the maintenance of privilege.
[36] Citic Pacific Ltd v Secretary for Justice and Anor [2011] HKCFI 200 [42] (Citic).
[37] Ampolex Ltd v Perpetual Trustees [1996] 137 ALR 28, 32 - 33 (Ampolex).
On the other hand, senior counsel for Bianca and John submits that the mere disclosure of a privileged document does not mean it ceases to be privileged, because mere disclosure does not cause a document to lose the quality of confidence.[38] Senior counsel referred me, as examples of this, to the cases of Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd[39] and Hancock v Rinehart.[40]
[38] Rhodes Submissions [9], [12].
[39] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 [63] (Expense Reduction).
[40] Hancock v Rinehart [2017] NSWSC 530 [10] (Freehills subpoena).
The foundation of the submissions made by the Rhodes Parties is the assertion that the production of those documents by Bianca and John to HPPL has resulted in privilege being lost as the documents no longer having the requisite quality of confidence. As is evident from the consideration of the cases that follows, the conduct of Bianca and John in producing those documents to HPPL and the circumstances in which that conduct occurred are relevant to determining whether or not the requisite confidence, and therefore privilege, in the Privilege Claim Documents has been lost.[41] The question is whether that conduct constitutes a waiver of privilege such that privilege cannot be maintained or revived.
[41] See Cadbury at [103] where the court said 'given the context and circumstances of the filing and serving of the finalised proofs of evidence, there was a complete waiver'. (emphasis added)
I turn to consider each case to which I have been referred in the context of the facts arising therein.
In Citic, Citic handed over documents to the Securities Future Commission in Hong Kong. Citic later claimed that five of those documents were subject to legal professional privilege. Wright J found that the documents were handed over voluntarily and that Citic had made a conscious decision not to exercise the right it had to decline to hand over documents on the basis that they were subject to legal professional privilege.[42] Citic contended that there was a revival of legal professional privilege as a consequence of subsequent correspondence. Wright J held that:
The idea that there could have been a voluntary surrender of the documents subject to LPP and that LPP could then be said to be partially reinstated by way of agreement seems to me to be contrary to the fundamental concept of the nature of the privilege.[43]
[42] Citic [36], [38].
[43] Citic [42].
In Cadbury, the Australian Competition and Consumer Commission (ACCC), as an intervening party, contended that it had not waived any legal professional privilege it had in 111 finalised proofs of evidence, when those proofs were served by the ACCC on the opposing parties in earlier separate proceedings.[44] Those proofs of evidence were not relied upon in those earlier proceedings. The Full Court said 'one element of confidentiality is essential, namely non-disclosure to one's opponent.'[45] In this case however, the finalised proofs of evidence were created and served for the dominant purpose of use in existing litigation and they were intended to be provided to the opposing parties[46] - there was no element of compulsion as to the nature and content of evidence to be produced to the opposing party, even though an order was made for the provision of witness statements.[47] The Full Court said:
Further, within the principles of Harman, the legitimate purposes of litigation would entitle an opposing litigant to disclose to his or her potential witnesses, or any one assisting in the litigation, the documents provided by the other side. Whilst the 'privacy' of the other party is sought to be protected, it is not the confidentiality of the type sought to be protected by legal professional privilege. The confidentiality relevant to legal professional privilege is that of preventing one's opponent from seeing the confidential communications between a client and his or her legal representative or otherwise brought into existence for the dominant purpose of the litigation.[48]
[44] Cadbury [1].
[45] Cadbury [37].
[46] Cadbury [54].
[47] Cadbury [51].
[48] Cadbury [50].

In Ampolex, Ampolex disclosed to the public in a takeover statement that it had legal advice to support its position in relation to a dispute over a conversion ratio. Following that disclosure, a defendant in the proceedings called for the production of that legal advice. Ampolex produced the documents in a sealed envelope, but objected to the tender of them on the basis of legal professional privilege. The trial judge found that Ampolex had waived its entitlement to legal professional privilege as it had knowingly and voluntarily disclosed the substance of the legal advice. Ampolex appealed this decision to the Court of Appeal, who dismissed the appeal. Ampolex then sought special leave to appeal to the High Court and sought a stay of the disclosure of the documents pending the determination of the application for special leave and any subsequent hearing if leave where granted.[49] Kirby J, in refusing to grant special leave to appeal, stated:
In the present case, a stay or an order equivalent to a stay would, in my opinion, be needed, to preserve the utility of the subject matter of the litigation, namely the confidentiality of the legal advice in respect of which Ampolex claims privilege. Once that advice is disclosed, particularly if disclosed to all parties in a public trial, the genie cannot be returned to the bottle. The privilege is effectively lost. It cannot be retrieved.[50]
[49] Ampolex (29 - 30).
[50] Ampolex (32).
Kirby J accepted the decision of the primary judge that the disclosure of the legal advice had the effect of waiving it and found that the decision wasn't attended by sufficient doubt to grant special leave.[51]
[51] Ampolex (34).
In Expense Reduction, disclosure of privileged documents occurred during the discovery process. It was not in dispute that the disclosure occurred by mistake. The High Court held that, where a privileged document is inadvertently disclosed, the court should ordinarily permit the correction of that mistake and order the return of the document.[52]
[52] Expense Reduction [45].
In Freehills subpoena, the NSW Court of Appeal held that where a potentially privileged document is produced under subpoena before an interested party has an opportunity to object, there having been a mistake in the process by which the Freehills documents had been delivered to Bianca Rinehart, the court may order the issuing party to return the document so that the privilege dispute may be heard.[53]
[53] Freehills subpoena [10].
None of the cases to which I was referred, and which I have considered above, are on all fours with the circumstances before me in this application. There is no doubt that the Privilege Claim Documents are in the hands of HPPL, HPPL having discovered them in the Rhodes Proceedings. However, it is the circumstances in which they came to be so that is determinative of this issue, not merely the fact that they are in the hands of HPPL.

Although Bianca and John did not inadvertently disclose the Privilege Claim Documents to HPPL, as was the case in Expense Reduction and Freehills subpoena, these cases do establish that the mere disclosure of a document does not destroy the confidence in the documents necessary to assert privilege. As in each of those cases, the context and circumstances in which the documents came to be in the possession of the opponent was determinative of whether privilege had been waived and therefore, lost.
In Ampolex, the decisive factor in favour of finding that privilege had been waived was that Ampolex had publicly and voluntarily disclosed the substance of the legal advice over which it sought to maintain privilege. Likewise in Citic, privilege had been lost by virtue of the conscious and voluntary surrender of the privileged documents. That is not the case here. The Privilege Claim Documents were produced to HPPL in the Martin Arbitration pursuant to an order compelling Bianca and John to produce the Privilege Claim Documents to HPPL.

Finally, Cadbury is not, as was asserted by the Rhodes Parties, authority for the proposition that the compulsive nature of disclosure of the Privilege Claim Documents in the Martin Arbitration does not alter the outcome of Bianca and John's claim for privilege in the curial proceedings. In Cadbury, it was found that there was no element of compulsion to the court's orders for production of witness statements.[54]
[54] Cadbury [97].
As the Full Court said in Cadbury citing Mann v Carnell:[55]
In any event, the ultimate task is to apply the principles set out in Mann 201 CLR 1.
As stated in the joint reasons in Mann (at 13):
'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 at large.'
The 'principle of fairness operating at large' is a reference to the fairness test which had been described by the High Court in Maurice 161 CLR 475 and applied by it in Goldberg 185 CLR 83.
In the joint reasons in Osland 234 CLR 275, Gleeson CJ, Gummow, Heydon and Kiefel JJ confirmed that the judgment as to whether there is inconsistency (between the conduct of the privilege-holder and the confidentiality which the privilege is intended to protect) 'is to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances' (at [45]). Questions of waiver are matters of fact and degree (see Osland 234 CLR 275 at [49]).
The filing and serving of the finalised proofs of evidence obviously occurred in the context of existing litigation and for the purpose of the giving of notice of the proposed evidence to be adduced at trial. This is to be distinguished from the context of the cases of Mann and Osland, which did not occur in the course of litigation. The filing and serving of the finalised proofs of evidence was a deliberate act and, whilst made because of the existence of the orders of Heerey J, was made with the purpose of informing Visy of the proposed evidence to be led by the ACCC in existing litigation. It would have been inconsistent upon so filing and serving the finalised proofs of evidence on Visy for the ACCC to have claimed litigation privilege, and it remains inconsistent to now claim such litigation privilege. No unfairness to the ACCC arises. The ACCC was content for the information contained in the finalised proofs of evidence to be made known to Visy, and presumably, to be led in open court save as to certain parts specifically ordered to be confidential.
Therefore, in our view, given the context and circumstances of the filing and serving of the finalised proofs of evidence, there was a complete waiver.[56]
[55] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 (Mann).
[56] Cadbury [99] - [103].
Mann is a leading High Court authority on the waiver of privilege. The facts in the case of Mann are as follows. In 1997, the Australian Capital Territory government compromised an action brought against it by Dr Mann with no admission as to liability. Dr Mann complained to a member of parliament about the conduct of the government during the litigation. The member passed the complaint on to the Chief Minister. The Chief Minister sent the member, in confidence, copies of documents containing legal advice the government had received (which were subject to legal professional privilege). He did so for the purpose of allowing the member to consider the reasons for the government's conduct. The member returned the copies, except for the covering letter from the Chief Minister to him, which he then sent on to Dr Mann.[57] Dr Mann then commenced proceedings in the Supreme Court of the ACT seeking pre-trial discovery of the documents in order to ascertain whether they were defamatory. Dr Mann submitted that privilege had been lost in those documents because they had been disclosed to the member.[58] In joint reasons, the High Court held that the Chief Minister had not waived the ACT's privilege over the documents, because his conduct in providing them to the member to enable him to consider the reasonableness of the government's conduct was not inconsistent with the purpose of the privilege, that being to protect the ACT from subsequent disclosure of the legal advice it had received concerning the litigation instituted by Dr Mann.[59]
[57] Mann [10] - [13].
[58] Mann [15].
[59] Mann [35].
These cases illustrate that the context and circumstances in which privileged documents are disclosed is an important factor in determining whether privilege has been lost.
The context and circumstances in which Bianca and John produced the Privilege Claim Documents to HPPL are relevantly these - Bianca and John asserted legal professional privilege over the Privilege Claim Documents, the tribunal in the Martin Arbitration ruled that privilege could not be maintained in those documents,[60] Bianca and John produced those documents pursuant to an order of the tribunal, the documents were produced in the context of a confidential arbitration and were produced for the purpose of complying with the orders of the tribunal in the Martin Arbitration.
[60] First Taylor Affidavit, Annexures 'GET-19', 'GET-20'.
I find that the legal professional privilege asserted by Bianca and John over the Privilege Claim Documents has not been waived by them as a result of those documents being involuntarily produced by them to HPPL in the Martin Arbitration. I so find for these reasons.
While non-disclosure of documents to one's adversary is one element of confidentiality, what is evident from the cases to which I have been referred is that, in order for that confidentiality to be extinguished, the disclosure of the documents must be a conscious and voluntary decision. Bianca and John did not voluntarily produce the Privilege Claim Documents to HPPL, they were compelled to do so.
Further, there is no inconsistency between the conduct of Bianca and John and the maintenance of confidentiality over the Privilege Claim Documents. Bianca and John have always, and continue to, assert legal professional privilege over the Privilege Claim Documents. The provision of the Privilege Claim Documents by Bianca and John to HPPL pursuant to an order of the tribunal in the Martin Arbitration is not inconsistent with the maintenance of the confidentiality which the claim of privilege is intended to protect. It follows that privilege has not been lost such that it cannot be asserted over the Privilege Claim Documents in the Rhodes Proceedings.
The fact that the Privilege Claim Documents were disclosed by Bianca and John to HPPL in the Martin Arbitration pursuant to an order compelling them to do so is determinative of this issue. Where a party is compelled to provide documents, that will not result in a waiver of privilege.
Therefore, the answer to the question 'does the production of the Privilege Claim Documents by Bianca and John to HPPL in the Martin Arbitration give rise to a waiver of legal professional privilege over those documents such that privilege is lost?' is no.

While the Rhodes Parties accept that this court's jurisdiction is not ousted or fettered by the privilege ruling of the tribunal in the Martin Arbitration,[61] they submit that Bianca and John's attempt to relitigate a dispute in this Court that has already been resolved in the Martin Arbitration constitutes an abuse of process.
[61] Rhodes Submissions [68].
The Rhodes Parties rely upon the case of Sea Culture International Pty Ltd v Scoles[62] in support of this contention. In that case, a party had filed pleadings in the Western Australia Industrial Relations Commission that were alleged to be inconsistent with the party's pleaded case in the Federal Court. French J (as his Honour then was), in finding that this was not a case where the drastic measure of staying the proceedings as an abuse of process should be taken, observed:
An attempt to litigate in the court a dispute or issue which has been resolved in earlier litigation in this or another court or tribunal may also, according to the circumstances, constitute an abuse of process even if not attracting the doctrines of res judicata or issue estoppel.
Underlying the power that courts have assumed to stay or dismiss proceedings for abuse of process is a policy of preventing waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. There is, in my opinion, another element to be considered and that is the necessity to maintain confidence in and respect for the authority of the courts. If a party in litigation in this Court makes a formal and public allegation by way of its pleading which is inconsistent with a formal and public allegation in another forum, then such an issue may arise.[63]
[62] Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 (Sea Culture).
[63] Sea Culture (279).
While the categories of cases which will give rise to an abuse of process are not closed,[64] there are a number of obstacles in the way of the contention raised by the Rhodes Parties that cannot be overcome.
[64] Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256 [9].
Firstly, Bianca and John have not been inconsistent - they claimed privilege over the Privilege Claim Documents in the Martin Arbitration and continue to do so in the Rhodes Proceedings.
Secondly, the procedural ruling in relation to privilege made in the Martin Arbitration was not a public ruling. In these circumstances, Bianca and John's claim for privilege over the Privilege Claim Documents in the Rhodes Proceedings does not bring the administration of justice into disrepute.
The answer to the question 'Is Bianca and John's claim for privilege over the Privilege Claim Documents an abuse of process in circumstances where the tribunal in the Martin Arbitration has already ruled on the issue of privilege?' is no.

Have Bianca and John waived privilege over the Privilege Claim Documents by putting their knowledge in issue in their submissions in answer to the Rhodes Parties' claim of laches?

By the Rhodes Amended Reply, the Rhodes Parties raise the equitable defence of laches against Bianca and John. The Rhodes Parties allege from 2003 to early 2004 through to around 2014, when Bianca and John commenced the Federal Court proceedings, Bianca and John became aware of facts that gave rise to the claims that they were entitled in equity to an interest in the Hope Downs Tenements.[65] The Rhodes Parties plead that, having become aware of these facts, Bianca and John were guilty of delay by not making their claims for a constructive trust over the HPPL Parties' interest in the Hope Downs Tenements until 2014 (or some earlier date between 2004 and 2014) and as a result of that knowledge and delay, it would be unreasonable and inequitable for Bianca and John to be awarded any interest or constructive trust over the Hope Downs Tenements.[66]
[65] ts 2039 - 2040.
[66] Rhodes Amended Reply [3.5.3].
Senior counsel for the Rhodes Parties submits that Bianca and John have waived privilege over several Privilege Claim Documents by putting their states of mind from 2003 in issue in response to the Rhodes Parties' plea of laches. Senior counsel for the Rhodes Parties says that Bianca and John, through their senior counsel's opening submissions in the curial proceedings, make an assertion that they did not know certain matters as from 2003 because of the lies they were told by Gina and her supporters.[67] Senior counsel for the Rhodes Parties says that by putting their knowledge in issue in the curial proceedings, Bianca and John's conduct is inconsistent with the maintenance of privilege over the Privilege Claim Documents. The Rhodes Parties say that they are entitled to test Bianca and John's knowledge by reference to the advice that they received at the time - advice that forms part of the Privilege Claim Documents.[68]
[67] Rhodes Submissions [77] - [83].
[68] Rhodes Submissions [86].
The Rhodes Parties rely upon Mann as support for the proposition that it would be unfair to allow Bianca and John to make submissions in the curial proceedings which put their knowledge in issue without giving full disclosure of the advice that they were receiving at the relevant time.[69]
[69] ts 2003.
I was referred to a number of cases by senior counsel for each of the Rhodes Parties and Bianca and John which consider the circumstances in which inconsistent conduct will give rise to a waiver of legal professional privilege. I turn to summarise each of those cases.
In GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd,[70] GR Capital, as a judgment debtor, sought to set aside consent orders made in previous proceedings. By those orders GR Capital consented to judgment in favour of Xinfeng for $10 million. GR Capital sought to set aside the consent orders on the basis that the liability that was crystallised therein related to an illegal transaction. GR Capital said that they had no knowledge of the illegality at the time the orders were made and therefore, made a unilateral mistake. Xinfeng opposed the application to set aside the consent orders and issued a subpoena to the former solicitors of GR Capital seeking production of documents containing legal advice given in relation to the previous proceedings.[71] GR Capital sought to set aside the subpoena on the basis that those documents were subject to legal professional privilege. The issue on appeal was whether GR Capital had waived privilege over those documents.[72]
[70] GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266 (Xinfeng).
[71] Xinfeng [1] - [8].
[72] Xinfeng [9].
The Court of Appeal held that the case of Mann was authority for the proposition that the common law test to determine whether legal professional privilege has been waived by the conduct of the party claiming privilege is whether there has been inconsistency between that conduct and the retention of privilege.[73]
[73] Xinfeng [52] - [54].
After consideration of the relevant authorities, Mcfarlan JA (with whom McCallum JA and Simpson AJA agreed) summarised the principles relevant to such waiver of privilege as follows:
(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.[74]
[74] Xinfeng [57].

In Xinfeng, the Court of Appeal held that there was inconsistency between GR Capital asserting that they were ignorant of a defence of illegality when they consented to the orders, and GR Capital maintaining a claim of privilege over legal advice concerning the existence of that defence. It was inconsistent for GR Capital to assert that, on the day they consented to the orders, they had no knowledge of the illegality of the transaction and, at the same time, be entitled to withhold from disclosure anything that their lawyers had told them about the possibility of such a defence. This was particularly so given the same lawyers were acting for them in the proceedings in which the consent orders were made.[75] However, the Court of Appeal were not of the same view in relation to legal advice that concerned the merits of other defences. While that advice may have been relevant and may allow Xinfeng to test GR Capital's assertion that they were unaware of the illegality, those assertions did not amount to an inconsistency in the conduct of GR Capital. The Court of Appeal held that GR Capital had not laid open the advice they received on the merits of other defences to scrutiny.[76]
[75] Xinfeng [59].
[76] Xinfeng [60].
In Ferella v Official Trustee in Bankruptcy,[77] Ferella was seeking to be discharged from bankruptcy. Ferella asserted that the trustee in bankruptcy was in a position to discharge him from bankruptcy and the trustee said that it was not. Ferella asserted that the trustee had waived privilege by pleading that it was not in position to take the steps that Ferella said it could to discharge the bankruptcy. Ferella submitted that the trustee was required to produce any legal advice obtained by the trustee as to why it could not take those steps.[78] In considering the relevant test for waiver of privilege, Yates J said:
Thus where the contents of otherwise privileged communication is put in issue that act will be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication. However the question is not simply whether the holder of the privilege has put that person's state of mind in issue but whether that person has directly or indirectly put the contents of otherwise privileged communications in issue … [E]ven the fact that the holder of the privilege makes clear that the advice was relevant or contributed to a particular course of conduct would not be sufficient to waive the privilege unless, possibly, the contents of the legal advice (and not merely the fact of the advice) are specifically put in issue by relying on the contents of the advice to vindicate a claimed state of mind.[79]
[77] Ferella v Official Trustee in Bankruptcy [2010] 188 FCR 68 (Ferella).
[78] Ferella [56], [63].
[79] Ferella [65].
In DSE (Holdings) Pty Ltd v Intertan Inc,[80] the parties were in dispute about the proper construction of a share acquisition agreement, particularly whether specific accounts fell within the scope of the agreement. DSE alleged that it was the common intention of the parties that certain accounts fell within the agreement, while Intertan pleaded a mere denial.[81] The issue before the court was whether DSE's contention that all parties had a certain state of mind, met by Intertan's denial, put Intertan's state of mind in issue so as to waive legal professional privilege attached to legal advice relating to how Intertan formed its state of mind. Allsop J held that the mere act of denial by Intertan of an assertion by DSE was not conduct by Intertan that expressly or impliedly made an assertion about the contents of any privileged communication that opened such communication to scrutiny. Therefore, Intertan had not acted inconsistently with the maintenance of confidentiality.[82]
[80] DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 (DSE).
[81] DSE [9] - [10].
[82] DSE [115].
Allsop J summarised the circumstances in which waiver of privilege may occur as follows:
… the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication.[83]
…
It is the inconsistency between the act by the holder of the privilege and the confidentiality of the communication which destroys the privilege. I would have thought that it is too broad a statement to say that a pleading of a state of mind to which legal advice is or might be materially relevant is an adequate surrogate for the expression of principle in Mann v Carnell.[84]
[83] DSE [58].
[84] DSE [95].
In Re Jimmy's Recipe Pty Ltd,[85] the defendant alleged that he had been taken advantage of when he signed a settlement deed in a mediation where his lawyer was present. Leeming JA held that it was 'likely' that what was said to the defendant by his lawyer at the mediation contributed to the defendant's state of mind at the time that he executed the settlement deed, and therefore it would be productive of inconsistency in the Mann sense for the defendant to positively advance his state of mind while simultaneously maintaining a claim for privilege. Leeming JA held that the plaintiff was entitled to see the notes of what the defendant was told by his lawyer during the course of the mediation conference.[86]
[85] Re Jimmy's Recipe Pty Ltd [2020] NSWSC 516 (Jimmy's).
[86] Jimmy's [7] - [10].
Each of the cases to which I have been referred have applied the principles set out in Mann. Importantly, Mann is authority for the proposition that it is not overriding issues of fairness or relevance which will determine whether privilege has been waived by Bianca and John. The question is whether the conduct of Bianca and John is inconsistent with the maintenance of privilege over the Privilege Claim Documents.
Therefore, the starting point is to analyse the conduct of Bianca and John that is said to be inconsistent with the maintenance of confidentiality in the Privilege Claim Documents.[87]
[87] AWB [134].
The Rhodes Parties say that Bianca and John have put their knowledge in issue by submissions made by their senior counsel at various times in opening in the curial proceedings. Given the significant weight placed by senior counsel for both parties on Bianca and John's opening submissions, it is important to reproduce the relevant parts in full. Those submissions were:
(a)On 14 August 2023:
We will show, when I deal with the Rhodes' laches defence, that when John found out about the 1988 agreement and questioned how it was that HPPL had all of the mining assets and Gina had 76 per cent of the shareholding in HPPL rather than 51 per cent, contrary to what was provided for in the 1988 agreement, John and his lawyer were met with a barrage of lies and threats and intimidation, from Gina and Terry Solomon, the former inhouse solicitor at HPPL. It was all intended to prevent John from ever finding out that Gina had defrauded him and his siblings, let alone commencing a claim about it.[88]
(b)On 17 August 2023:
[Counsel for the Rhodes Parties] submitted … that this draft [affidavit prepared for HPPL] basically contains a blueprint of what is in Bianca and John's defence in these proceedings. We say that's incorrect. When one reads the affidavit carefully, one sees that the key elements of Bianca and John's claims are missing. Nevertheless, the affidavit has been put forward by Rhodes to show the state of John's knowledge at that time, which was October 2004. We say that it portrays a very incomplete and, at times, manifestly wrong understanding of several critical facts.[89]
…
I'll come in a moment to the fact that [John] was also extremely financially constrained and had limited legal resources to assist him, but he was doing his best, with what very little information he had, to try to get an understanding of the events that led to the loss of the tenements and the increase in Gina's shares. But he was being deprived of information and met with the kind of threats and lies I am about to go to.[90]
…
That paragraph encapsulates what we say is the false narrative that emanated from Gina and HPPL as soon as John raised these claims, and it is the same false narrative that is perpetuated to this day.[91]
…
Then we say that when it comes time that John starts investigating these allegations and doing his best with grit and determination but no access, no real - being denied information by Gina, being denied the substance of the allegations and being lied to, it is really - the court would find that it would decline to reach the conclusion that John and/or Bianca unreasonably delayed in the bringing of these claims.
It's on that basis, as well as the fact that the laches defence is incoherent and untenable, as a matter of law that your Honour would reject that defence.[92]
[88] First Taylor Affidavit, Annexure 'GET-26' (589), ts 1186.
[89] First Taylor Affidavit, Annexure 'GET-27' (597), ts 1541.
[90] First Taylor Affidavit, Annexure 'GET-27' (602), ts 1546.
[91] First Taylor Affidavit, Annexure 'GET-27' (603 - 604), ts 1547 - 1548.
[92] First Taylor Affidavit, Annexure 'GET-27' (638), ts 1582.
The question of whether these submissions put the knowledge of Bianca and John in issue was also the subject of discussion during Bianca and John's opening submissions in the curial proceedings. The following exchange between senior counsel for the Rhodes Parties, Mr Stoljar SC, senior counsel for Bianca and John, Mr Withers SC, and the trial judge, Smith J, occurred:
Mr Stoljar SC: … in Mr Withers' submissions on the topic of laches, they were said to be responsive to paragraph 3.5 of the Rhodes' amended reply. Now, it is one thing to say that the pleading or the evidence marshalled in support of the pleading doesn't make out a case - that is, the case advanced in 3.5 of the amended reply. It's another thing to do what our friends appear to be doing, namely, mounting some affirmative defence to that case to the effect that - well, to use his language - his clients were defrauded, lied to and threatened.
It would appear to the case that our friends are advancing some sort of case that there was fraud and that this caused his clients to act in some material way. If that is the position, then our friends need to plead that by rejoinder or in some other way and actually spell out what precisely is the lies, the threats, the fraud, and how it is said to have impacted upon John and Bianca's behaviour in some material or relevant way. We say, absent doing that, then in a way the submissions made today just fall away and are irrelevant.
…
Her Honour: … perhaps I can ask Mr Withers to respond, but it is my understanding that the submission that was put and the documents to which the court has been taken this morning was to show that John and Bianca didn't have full knowledge of Rhodes' claim so as to bring their own claim. And that, as I understand, was the purpose of that evidence. Am I right, Mr Withers, or are you attempting to go a step further than that?
Mr Withers SC: I would simply say that the case that has been put against us is that 'you unreasonably delayed in bringing these proceedings'. So that is their burden to prove that my clients had sufficient knowledge to bring the proceedings in time and should have. To determine that question, the court needs to take into account all of the communications emanating from HPPL when they were denying the claims. That's the purpose of that exercise, and to say that … Rhodes, hasn't met its burden of proving that knowledge, I don't need to make a positive case.
Her Honour: But what I have put just back to Mr Stoljar, is that an incorrect understanding of John and Bianca's submissions? ... Because I didn't understand that the submission that you were making, Mr Withers, was on the basis that was because of threats made to John and Bianca, they didn't press a claim.
Mr Withers SC: No, I was simply saying that those matters that you have seen in the correspondence ought to be taken into account in weighing up whether they unreasonably delayed. I don't make a submission that a threat or any threats, per se, stopped them from bringing a claim. I don't say that. What I do say is that the various things that were said, and primarily the things that were said about legal advice given and all that kind of thing were factors that the court could take into account in assessing whether or not they unreasonably delayed in bringing the proceedings, because they have been told the companies got legal advice and the like. All those things are untrue. I am not trying to make a positive case about my clients' state of mind, because at the moment we do that, our learned friends will say, 'You have waived privilege over that.' I am just saying that they haven't met their burden of proving that my clients had the relevant knowledge at particular times. (emphasis added)
…
Mr Stoljar SC: … first is that either all of the things that were said today - and very serious accusations were made against a whole range of people - either they're made out and they had some material impact or they didn't. If our friends say 'Well, they didn't have any material impact', then one wonders what the relevance is and why we went to them. If our friends say they did have some material impact, then they should spell it out in a pleading. It is an allegation of fraud and it needs to be pleaded and spelled out. That's the first point.
The second point is our friend says. 'Well, I am not putting my clients' knowledge in issue,' but that is exactly what he has done for some hours this morning. My friend consistently said, 'My client didn't know things,' 'My client seems to think things,' et cetera. He said … that John was 'obviously doing his best to understand certain things.' So that's exactly what he's done, and it's… too late to walk that back now … Our submission is that this needs to be pleaded. State of knowledge is squarely in issue.
…
Mr Withers SC: … all I have done this morning was go through the pieces of evidence that Rhodes says demonstrate we had particular knowledge, and ... compare that, like the draft affidavit, with the allegations made in these proceedings and the documents I've shown your Honour, to establish why Rhodes has not made out that those documents, like his draft affidavit, demonstrate the requisite knowledge. That's what I have done. I haven't opened up my client's state of mind. And of course, we say that those communications, like the draft affidavit, have to be viewed in light of the denials that you see in the correspondence where they are being told, 'Everything you say in that draft affidavit is untrue'.
Her Honour: All right. Well, no doubt this issue will be revisited.[93]
[93] First Taylor Affidavit, Annexure 'GET-27' (640 - 643), ts 1584 - 1587.
And revisited it was on this application. Senior counsel for Bianca and John, in his submissions in opposition to the application, repeated that, by their opening submissions, Bianca and John sought to put the Rhodes Parties to proof on their laches claim. Senior counsel said:
We are putting them to proof on the knowledge that … Rhodes says that my clients had, such that their laches defence is made out, and the conclusion should be reached that it would be unreasonable and inequitable for … my clients to be awarded any interest in the trust … so we're entitled to put them to proof, which we've done.
… when all this came up at the opening, the way it worked was this. [counsel] for Rhodes spent a half-day going through all the evidence, the particulars that you've seen in that reply … to say, 'Look at this. All of this evidence shows that they had the requisite knowledge of the facts giving rise to their claims, and, therefore, they unreasonably delayed in bringing the proceedings.'
So what we did in response was to … go through that evidence and respond to it and show that it did not demonstrate knowledge of the requisite degree to make out the laches defence. So, in other words, we made it quite clear we're putting them to proof, and we went through the evidence that they relied upon and said this has not proven knowledge to the requisite degree. That's what we were doing in the opening.[94]
[94] ts 2041.
Senior Counsel for Bianca and John then referred to his opening submissions (which I have reproduced above) in which he said that he was not making a positive case about Bianca and John's states of mind and said:
Now, I'm saying that then and I'm saying it now. I am not making, on behalf of my clients, a positive case about their state of mind. So Mr Stoljar is quite correct. If I was making a positive case about my client's state of mind, it's something that would have to be done by way of rejoinder. So he's quite right, and if there - if we make a submission or we made a submission that makes an argument about - a positive argument about my client's state of mind, … Mr Stoljar or Ms Lendich would be quite entitled to object to it on the basis that we haven't pleaded it, and we don't intend to do that.
And that's why there's no unfairness. This notion that there's unfairness and they, therefore, should get behind my client's claims for privilege is not sustainable in light of the fact I don't have a positive pleading of state of mind and I have said on countless occasions, including once again now, we are not running that case. We are only putting you to proof.[95]
[95] ts 2042.
Further, senior counsel for Bianca and John said:
One point we - we certainly made repeatedly on that last day of the opening was that Gina lied in multiple communications to John and she denied his allegations of wrongdoing. Now, this is important, because he had supplied … a draft affidavit that set out some of the allegations that he was making at that time about what Gina had done, … And our learned friends said, 'This is the blueprint for the case, and therefore, he knew everything he needed to know.'
And we have - we dispute that, and in disputing it, we say that the affidavit does not reveal knowledge that one would have required to be able to bring the case, so we say you haven't met your burden of proof. That's not putting a state of mind issue, but we also say what is relevant to take into account is that, when he said these things in the affidavit, we had denials - all these denials from Gina and from Mr Solomon, saying, 'You're completely wrong. Your claims are all crackpot claims,' those are her words, 'and everything's misconceived.'
So when we come back to the reply pleading … at 3.5.33, where it's said that … because of the delay in bringing the proceedings, it would be unreasonable and inequitable for the children to be awarded any interest or constructive trust over the mining lease - the court is entitled to take into account … all of the circumstances that we have referred to in the opening where John was told, 'Your allegations are wrong.'
Now that must be a relevant factor. Now, we can say John is told that - by Gina and Terry Solomon, 'Everything you have said in your affidavit is false.' That must be something that we can point to when we're dealing with this issue of unreasonable delay and - and do so without putting … putting John's state of mind in issue. And likewise, the lies - all the lies that were told - the evidence in the case is going to prove that they were lies - we're certainly entitled to say in the assessment of whether … there was an unreasonable delay that when John raised his allegations, he was met with falsehoods.
Now, we can say that without putting his state of mind in issue, and that's what we intend to do.[96]
[96] ts 2049 - 2050.

Senior counsel for the Rhodes Parties submits that, despite assertions that Bianca and John are merely putting the Rhodes Parties to proof on their laches claim, that is not, in fact, what they did in their opening submissions. The Rhodes Parties contend that such submissions are inconsistent with the maintenance of privilege over the advice upon which Bianca and John acted at the time and the failure to produce that advice gives rise to unfairness. The Rhodes Parties referred me, by way of example, to the following documents over which they say privilege cannot be maintained.
[redacted]. Item 508 in the schedule listing the Privilege Claim Documents[97] refers to [redacted]. The Rhodes Parties say that, by putting Bianca and John's knowledge (or lack thereof) in issue in response to the laches claim, Bianca and John have opened up for scrutiny the advice that they were receiving in 2004 about commencing proceedings against Gina.[98]
[97] First Price Affidavit, Annexure 'TRP1' (Application Court Book 113).
[98] ts 2026.
Further, on 27 October 2004, Butcher Paull & Calder, Bianca and John's solicitors at that time, wrote to Terry Solomon, general counsel for HPPL, and made a number of allegations about Gina's conduct and annexed a draft affidavit of John outlining these allegations. Senior counsel for the Rhodes Parties referred to this draft affidavit during opening submissions and submitted that it was a 'blueprint' for what is now pleaded in Bianca and John's defence in the Rhodes Proceedings.[99] Senior counsel for Bianca and John, in response to that submission, said (in opening submissions in the curial proceedings):
We say that's incorrect. When one reads the affidavit carefully, one sees that the key elements of Bianca and John's claims are missing. Nevertheless, the affidavit has been put forward by Rhodes to show the state of John's knowledge at that time, which was October 2004. We say that it portrays a very incomplete and, at times, manifestly wrong understanding of several critical facts.[100]
[99] [ts 758].
[100] First Taylor Affidavit, Annexure 'GET-27' (Application Court Book 597), ts 1541.
Senior counsel for Bianca and John then went through what he says are the inaccuracies contained in the draft affidavit and after doing so, said:
That answers Rhodes' arguments, based on this affidavit, that John knew in 2004 enough to be able to commence proceedings and makes the allegations that he now makes in these proceedings.
But what is perhaps even more significant is the way that Gina and HPPL responded to John's allegations, which we say was to lie to him and threaten him and his lawyer. There is a whole raft of correspondence to this effect. The starting point is a letter from Mr Solomon to Mr Butcher of 5 November 2004 ...[101]
[101] First Taylor Affidavit, Annexure 'GET-27' (Application Court Book 601), ts 1545.
Senior counsel for Bianca and John also referred to documents in his opening submissions which were not referred to by the Rhodes Parties. Those documents were referred to in support of the submissions that John was being deprived of information by Gina and met with threats and lies.[102] Senior counsel also referred to the fact that John had limited resources and was not provided important documents by Gina or HPPL, and made the following submissions:
Again you can see from that … the complete imbalance of power between HPPL, with all the resources it has, and John, trying to get to the bottom of what happened, with no money and very limited legal resources. No shortage of skill and determination but no, otherwise, access to information or the type of financial wherewithal that one would actually need to properly understand what happened.[103]
…
You can see why John would have been uncertain of the allegations that were set out in that affidavit in the face of denials, but also in the face of the repeated insistence that the companies had all their own independent legal advice, and anyone in John's position that would have been given them pause before asserting serious breaches of duty. Being told by the inhouse counsel for HPPL that the companies are all independently advised, he would have had real questions about whether they were correct in their beliefs about what had happened.[104]
…
So our friends haven't demonstrated that John knew the chronology of events I have taken your Honour through this week or knew the core facts about Gina's state of mind …[105]
…
Not only did John not have access to any of those documents, but he was met at every time with lies, bullying and intimidation designed to stop him making further enquiries.[106]
[102] First Taylor Affidavit, Annexure 'GET-27' (Application Court Book 602 - 616), ts 1546 - 1560.
[103] First Taylor Affidavit, Annexure 'GET-27' (Application Court Book 616), ts 1560.
[104] First Taylor Affidavit, Annexure 'GET-27' (Application Court Book 622), ts 1566.
[105] First Taylor Affidavit, Annexure 'GET-27' (Application Court Book 622), ts 1566.
[106] First Taylor Affidavit, Annexure 'GET-27' (Application Court Book 623), ts 1567.
Senior counsel for the Rhodes Parties also refers to Bianca and John's written outline of submissions in opposition to the application, particularly the following submissions:[107]
57.The fact that John was repeatedly lied to about such critical matters is obviously relevant to the assessment of whether John and Bianca unreasonably delayed commencing proceedings against the HPPL parties and Gina.
58.John and Bianca will contend that the Rhodes Parties cannot prove that John and Bianca had any means of knowing the true factual position absent the document production that occurred in the arbitration.[108]
[107] ts 2055.
[108] Bianca and John's Submissions [57] - [58].
Senior counsel for the Rhodes Parties submits that, by making these assertions in the opening submissions in the curial proceedings and in submissions in opposition to this application, Bianca and John are asking the Court to infer that John had an incomplete and at times manifestly wrong understanding of the facts. Senior counsel for the Rhodes Parties submits that the documents pleaded in the particulars of knowledge at paragraph 3.5.3.1 of the Rhodes Amended Reply were not the only source of information available to Bianca and John - Bianca and John received advice from Butcher Paull & Calder and Mr Camp at this time - advice which they say is now open to scrutiny given their inconsistent conduct in making the submissions.[109]
[109] ts 2026.
I do not agree. None of the assertions made in the opening submissions by senior counsel for Bianca and John to which I have been referred are assertions which are inconsistent with a claim for legal professional privilege over advice that was received at the relevant time. That is for the following reasons.
Firstly, it is important to consider the context in which Bianca and John's knowledge comes to be in issue in the Rhodes Proceedings. By paragraph 3.5.3.3 of the Rhodes Amended Reply, the Rhodes Parties plead:
3.5.3.3By reason of the aforesaid knowledge and delay by [Bianca and John], together with the matters pleaded at subparagraphs 3.5.7.3.2 to 3.5.7.3.11 below, it would be unreasonable and inequitable for [Bianca and John] to be awarded any interest or constructive trust over HDIO's interest in [the Hope Downs Tenements].
It is the Rhodes Parties who put Bianca and John's knowledge in issue. Bianca and John do not plead a positive case by way of rejoinder - this was, in fact, the subject of complaint by senior counsel for the Rhodes Parties during opening submissions. An assertion that a party is put to proof on a matter on which that party bears the onus of proof does not, just as a denial did not in DSE, constitute conduct which is necessarily inconsistent with the maintenance of privilege.
Secondly, I accept that a positive case does not necessarily have to be pleaded, it may only be asserted.[110] Senior counsel for Bianca and John went to great lengths to assure the court, both in opening submissions in the curial proceedings and in submissions in opposition to this application, that Bianca and John did not assert a positive case, that they simply pointed to matters which meant that the Rhodes Parties could not satisfy the court, on the balance of probabilities, that Bianca and John had, by reason of the knowledge pleaded at paragraph 3.5.3.1 of the Rhodes Amended Reply, unreasonably delayed in bringing their claim against the HPPL Parties and Gina.
[110] DSE [58].
Upon close analysis of the opening submissions to which I have been referred, that is exactly what Bianca and John are doing by their opening submissions - asserting that the evidence the Rhodes Parties seek to rely upon to discharge their burden of proving the laches claim against Bianca and John is not reliable evidence. Bianca and John's assertions that Gina lied and/or threatened them do not bring into issue Bianca and John's states of mind - such assertions can be proved as a matter of fact - either Gina lied and/or threatened them or she did not. Whether Bianca and John knew that they were lies and threats is not in issue as a result of their senior counsel's opening submissions. Bianca and John are not asking the court to infer that John's understanding was incomplete or manifestly wrong, rather that the information provided to him by Gina was objectively incomplete and manifestly wrong and whether, in those circumstances, the Rhodes Parties have proved their laches claim to the requisite standard.
Thirdly, the assertions made during opening submissions by senior counsel for Bianca and John in relation to John's financial and legal resources must also be read in that context. They are made in circumstances where senior counsel was asserting that Gina was threatening John if he continued to make allegations against her.[111] They are not assertions which put into issue Bianca and John's states of mind at that time or any legal advice that Bianca and John did, or did not, receive at that time.
[111] ts 1559 - 1560.
I find that Bianca and John, by their opening submissions in the curial proceedings, and/or their submissions in response to this application, have not engaged in conduct which is inconsistent with the maintenance of privilege over any advice received from Mr Camp and/or Mr Butcher at the relevant times. Considerations of fairness, while not overriding, may be relevant to a determination of whether there is such an inconsistency. However, I do not consider that there is any unfairness in the Rhodes Parties not being permitted to inspect the Privilege Claim Documents in these circumstances, as Bianca and John have not opened those documents to scrutiny.
Fourthly, given my finding that there is no inconsistency in the assertions made in the submissions that open the Privilege Claim Documents to scrutiny, I now turn to deal with the portions of the affidavit of John[112] and the transcript of John's cross-examination,[113] being both documents in the Martin Arbitration, to which senior counsel for the Rhodes Parties referred me. Those documents are the subject of confidentiality orders and so I will not reproduce portions of them in these reasons.
[112] Second Taylor Affidavit, Annexure 'GET4'.
[113] Second Taylor Affidavit, Annexures 'GET6' - 'GET9'.
The Rhodes Parties relied upon portions of these documents in support of their submissions that Bianca and John were receiving advice from Mr Camp about proposed proceedings, including who was a necessary party and the prospects of success of any proceedings. The Rhodes Parties say that John's affidavit and his evidence in the Martin Arbitration establishes that this advice played a part in the decisions that Bianca and John made about the commencement of proceedings against Gina and HPPL. The Rhodes Parties submit that this advice is relevant where, in the Rhodes Proceedings, Bianca and John are now saying they did not have the requisite knowledge in 2004, or around that time, to be able to commence such proceedings. The Rhodes Parties say they should be entitled to test what Bianca and John did know at that time and whether what Bianca and John had been told by Mr Camp and Mr Butcher was relevant to their decision about whether to commence legal proceedings.[114]
[114] ts 2063.
I make this observation in relation to this submission. In deciding whether there is inconsistency of conduct such that privilege cannot be maintained, the conduct to be considered is that which has occurred in these proceedings. The conduct alleged by John giving evidence on affidavit and/or during cross-examination in the Martin Arbitration is not conduct to which I must address my consideration of inconsistency in this application. The asserted inconsistent conduct in the Rhodes Proceedings on the part of Bianca and John is in the form of assertions made in submissions in opening submissions in the curial proceedings and in this application - that is conduct which I have determined not to be inconsistent with the maintenance of privilege by Bianca and John.
Therefore, John's alleged inconsistent conduct in the Martin Arbitration is not relevant to determining whether he and Bianca have waived privilege in the curial proceedings.
In summary, Bianca and John have not, through any submissions of their senior counsel, put their states of mind in issue. Bianca and John's conduct in denying the Rhodes Parties' laches plea and asserting that the Rhodes Parties have not discharged their onus of proof is not conduct which is inconsistent with the maintenance of legal professional privilege over legal advice received by Bianca and John at the relevant times. Bianca and John have not waived privilege over any of the Privilege Claim Documents as a result of this conduct.
The answer to the question 'have Bianca and John waived privilege over the Privilege Claim Documents by putting their knowledge in issue in their submissions in answer to the Rhodes Parties' claim of laches?' is no. This is because they have not put their knowledge in issue.

Conclusion and final orders

The application, in its entirety, is dismissed for the following reasons:
(1)Bianca and John have not waived privilege over the Privilege Claim Documents by virtue of having produced them to HPPL pursuant to procedural orders made in the Martin Arbitration;
(2)Bianca and John's claim for privilege over the Privilege Claim Documents in the Rhodes Proceedings does not give rise to an abuse of process;
(3)Bianca and John have not put their knowledge in issue in their submissions in answer to the Rhodes Parties' plea of laches and therefore, have not waived privilege over any of the Privilege Claim Documents;
(4) this court is not bound by the rulings on privilege made in the Martin Arbitration; and
(5)Bianca and John have not waived privilege over the copies of the Privilege Claim Documents produced to HPPL in the Martin Arbitration.
I will hear the parties as to final orders and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
11 OCTOBER 2023