DST Bluedoor v AMP (No 2)
[2021] VSC 499
•18 August 2021
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST
S ECI 2019 03205
| DST BLUEDOOR PTY LTD (ACN 110 855 377) | Plaintiff/Defendant by Counterclaim |
| v | |
| AMP SERVICES LIMITED (ACN 081 143 786) | Defendant/Plaintiff by Counterclaim |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 June 2021 |
DATE OF RULING: | 18 August 2021 |
CASE MAY BE CITED AS: | DST Bluedoor v AMP (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 499 |
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EVIDENCE – Discovery and inspection – Legal professional privilege – Whether various internal documents privileged – Whether privilege waived – Section 122 Evidence Act 2008 (Vic) - Trade Practices Commission v Sterling (1979) 36 FLR 244 - Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87 - Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 - Banksia Securities Limited v The Trust Company [2017] VSC 583 - Commercial sensitivity – Confidentiality - Exhibits containing commercially sensitive information provided to defendant’s legal representatives and independent expert – Defendant company seeks to grant access to employees – Plaintiff claims inspection would be commercially prejudicial - Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S W Stuckey QC with Mr A Sykes of counsel | Gilbert + Tobin |
| For the Defendant | Mr M I Borsky QC with Mr L A Merrick of counsel | MinterEllison |
TABLE OF CONTENTS
Background......................................................................................................................................... 1
DST disclosure application.............................................................................................................. 5
Applicable Principles – privilege and waiver........................................................................... 5
Sample of documents................................................................................................................... 9
Document 5000.0001.0182................................................................................................... 9
AMP’s submissions................................................................................................ 9
DST’s submissions................................................................................................ 10
Analysis of document 5000.0001.0182............................................................... 11
Document 5000.0001.0192................................................................................................. 12
AMP’s submissions.............................................................................................. 12
DST’s submissions................................................................................................ 13
Analysis of document 5000.0001.0192............................................................... 15
Document 5000.0001.0322................................................................................................. 19
AMP’s submissions.............................................................................................. 19
DST’s submissions................................................................................................ 20
Analysis of document 5000.0001.0322............................................................... 20
Document 5000.0001.0761................................................................................................. 21
AMP’s submissions.............................................................................................. 21
DST’s submissions................................................................................................ 21
Analysis of document 5000.0001.0761............................................................... 21
Document 5000.0001.0629................................................................................................. 22
AMP’s submissions.............................................................................................. 22
DST’s submissions................................................................................................ 23
Analysis of document 5000.0001.0629............................................................... 23
Document 5000.0001.0434................................................................................................. 24
AMP’s submissions.............................................................................................. 24
DST’s submissions................................................................................................ 25
Analysis of document 5000.0001.0434............................................................... 25
Document 5000.0001.0417................................................................................................. 26
AMP’s submissions.............................................................................................. 26
DST’s submissions................................................................................................ 27
Analysis of document 5000.0001.0417............................................................... 27
AMP’s employee access application............................................................................................. 27
AMP’s submissions.............................................................................................. 28
DST’s submissions................................................................................................ 31
Analysis of AMP’s employee access application............................................. 35
Conclusion......................................................................................................................................... 44
HER HONOUR:
This ruling concerns two disputes about inspection of documents. DST Bluedoor, the plaintiff, seeks to inspect documents that AMP, the defendant, says are privileged. DST says the documents are not privileged. Alternatively, DST says that AMP has waived privilege. The first question for determination here is whether or not the documents are subject to legal professional privilege and if so, whether privilege has been waived.
The other dispute is that AMP seeks access to exhibits annexed to two witness statements filed on behalf of DST. DST says the documents are confidential and disclosure would provide AMP with a key unfair advantage in any future commercial negotiations. The second question for determination here is whether or not specified employees of AMP may inspect the documents and if so, on what terms.
Background
I gratefully adopt the outline of the proceeding given by the Honourable McDonald J in an earlier ruling in this proceeding:
On 30 June 2008 the plaintiff (“DST”) and NM Computer Services Pty Ltd (“AXA”) entered into a Master Licence and Service Agreement (“MLSA”). Under the MLSA, DST granted a licence to AXA to use software known as ‘Wealth.Net’ and subsequently renamed ‘Bluedoor’, designed for businesses providing wealth management, superannuation and investment services to the public.
On 19 November 2014 DST and the defendant (“AMP”) executed a deed of novation whereby AMP was substituted for AXA in respect of all its rights and obligations under the MLSA as varied.
Clause 30.6 of the MLSA provided:
Except as provided for in clause 30.7, during the term of the MLSA, and for a period of one year thereafter, each party must not directly solicit for employment any person who is employed by, or has a contract to supply services to, the other party.
DST claims that from at least January 2019 until May 2019, AMP solicited employees of DST in breach of clause 30.6. DST claims that as a result of AMP’s solicitation, 11 employees (“the ex-employees”) resigned from their employment with DST and accepted employment with AMP. DST alleges that it has suffered loss and damage as a result.
Each of the employment contracts of the ex-employees contained a clause to the effect that:
(a)after the employee’s employment with the Company ends, that employee would not, during the Restraint Period within the Restraint Area, for him or her-self or for any other person, without the written consent of DST, directly or indirectly do any of the following:
(i)canvas, solicit, or accept any approach from any client or customer of DST, with a view to obtaining the custom of that client or customer, for a business that competes with DST or provides the same or similar services;
(ii)canvas, solicit, induce or encourage any person who was an employee of DST at any time during their employment to leave DST’s employ;
(iii)provide services or accept any request to provide services (being services that are similar to those provided by DST) to a client or customer of DST;
(iv)counsel, procure or assist any person or company to do any of the acts referred to in the restraint clause;
(“the Restraint”)
(b) the “Restraint Period” was defined as:
(i) 12 months; or alternatively
(ii)if a Court finds that the restraint period of 12 months is unenforceable, a restraint period of 6 months; or alternatively
(iii)if a Court finds that the restraint period of 6 months is unenforceable, a restraint period of 3 months.
(c)the “Restraint Area” is defined under the employment contract of each of the Former DST Employees as:
(i) Australia; or alternatively
(ii)if a Court finds that the restraint area of Australia is unenforceable, the area of the State or Territory in which the employee was based during their employment: or alternatively
(iii)if a Court finds that the restraint area of the State of Territory is unenforceable, an area with a radius of 30 km of 469 La Trobe Street Melbourne in the State of Victoria.
DST alleges that AMP, with knowledge of the restraint, induced the ex‑employees to resign from their employment with DST and commence employment with AMP. DST alleges that in so doing AMP wrongfully interfered with DST’s contractual relations with each of the ex-employees. DST alleges that by reason of AMP’s wrongful interference DST has suffered loss and damage.
AMP contends that:
(a) the MLSA restraint in clause 30.6 is void and unenforceable;
(b) the employment contract restraints are:
(i) void for uncertainty; and
(ii) void as unlawful restraints of trade; and
(iii)do not as a matter of construction apply to the conduct complained of in the statement of claim.[1]
(citations omitted)
[1]DST Bluedoor Pty Ltd v AMP Services Ltd [2020] VSC 254, [1]-[7].
Since that ruling, there has been further amendments to the pleadings of both parties. AMP counterclaims against DST. AMP alleges DST breached the MLSA. AMP claims damages and set-off. DST denies it caused loss and damage to AMP.
For convenience, I shall refer to current pleadings as follows: DST’s writ and statement of claim filed on 16 July 2019 (‘DST’s claim’), DST’s further and better particulars of claim filed on 18 September 2019 (‘DST’s particulars’), AMP’s amended defence and further counterclaim filed on 2 February 2021 (‘AMP’s defence and counterclaim’), DST’s defence to the further amended counterclaim filed 22 February 2021 (‘DST’s defence to counterclaim’).
There is a confidentiality regime in place in respect of documents discovered by the parties. The parties agree the documents in dispute here are confidential.
Turning now to the current dispute.
By amended summons filed on 7 May 2021, DST seeks, amongst other things (‘DST disclosure application’):
Pursuant to section 26 of the Civil Procedure Act 2010, that the 22 “critical” documents identified in Schedule A to this Summons and produced by the Defendant on 10 November 2020 be disclosed to the Plaintiff in an unredacted form except where the Court determines that subsection 26(3) applies.[2]
[2]Plaintiff’s amended summons filed 7 May 2021, [1] (‘DST’s summons’).
DST filed witness statements of two of its senior employees:
(a) Andrew Aldworth, General Manager of Human Resources, filed 4 December 2020 (‘Aldworth witness statement 1’) and 9 March 2021 (‘Aldworth witness statement 2’); and
(b) Elzbieta Roberts, Head of Finance filed 4 December 2020 (‘Roberts witness statement 1’) and 9 March 2021 (‘Roberts witness statement 2’).
By further amended summons filed 2 June 2021, AMP seeks (‘AMP employee access application’):
1.Access to Confidential Exhibit ER-3 [(‘Exhibit ‘ER-3’)] and Confidential Exhibit ER-4 [(Exhibit ‘ER-4’)] referred to in the Second Witness Statement of Ms Roberts dated 4 February 2021 is granted to:
a.Sean O’Sullivan (AMP’s Finance Manager, Technology & Operations);
b.Mark O’Sullivan (AMP’s Senior Manager, AWM Performance and Planning); and
c.Paul Minne (AMP’s Platform Delivery Manager).
2.Access to Confidential Exhibit AA-2 [(Exhibit ‘AA-2’)] to the witness statement of Andrew Aldworth dated 6 November 2020 and Confidential Exhibit AA-3 [(‘Exhibit ‘AA-3’)] to the witness statement of Andrew Aldworth dated 9 March 2021 is granted to
Katrine Mielke (People & Culture Business Partner, AMP)Alex Boyle (Head of Reward, AMP).[3]
[3]Defendant’s further amended summons filed 2 June 2021, [1]-]2] (‘AMP’s summons’).
AMP relies upon the affidavits of its solicitor, Gareth Jolly. I will refer here to Mr Jolly’s affidavits affirmed on 17 December 2020 (‘Jolly 5 affidavit’), 14 May 2021 (‘Jolly 7 affidavit’), 7 June 2021 (‘Jolly 8 affidavit’), and 16 June 2021 (‘Jolly 9 affidavit’).
DST relies upon the affidavits of its solicitor, Kaushalya Mataraaratchi. I will refer here to Ms Mataraaratchi’s affidavits affirmed on 13 May 2021 (‘Mataraaratchi 3 affidavit’) and 3 June 2021 (‘Mataraaratchi 4 affidavit’).
Turning now to the first issue for determination, namely the DST disclosure claim.
DST disclosure application
Applicable Principles – privilege and waiver
The principles are not in dispute. Sections 118, 119 and 122 of the Evidence Act 2008 (Vic) (‘Evidence Act’) are applicable.
The parties were in agreement that legal professional privilege extends to the following class of documents described by Lockhart J in Trade Practices Commission v Sterling:
Legal professional privilege extends to various classes of documents including the following:
…
(d)Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client’s legal adviser to enable him to advice the client or to conduct litigation on his behalf.[4]
(citations omitted)
[4](1979) 36 FLR 244, 245-246.
DST referred to Standard Chartered Bank of Australia Ltd v Antico (Hodgson J).[5] It concerned a claim of legal professional privilege made over parts of the minutes of a company board meeting. Those parts recorded a summary of statements made by Mr McCann. He was both a director of the company and a lawyer. At the board meeting, Mr McCann had summarised the substance of legal advice given by him as a partner of the law firm advising the company. In respect of category (d) of Trade Practices Commission v Sterling cited above, Hodgson J stated:
I accept Lockhart J’s category (d), as set out by him, as being a valid category which is accurately stated. I do not think that, when dealing with category (d), it is appropriate to require that in relation to the making of the note, memoranda or minutes of the previous legal advice, the sole purpose test still has to be satisfied. It seems to me that the sole purpose test is to be applied to the original communication, and then the privilege will normally extend to notes or memoranda of that advice without the necessity of again applying the sole purpose test: however, the purpose of the notes, memoranda or minutes will be relevant in deciding whether they can fairly be described as being records of the legal advice rather than of something else.[6]
[5](1993) 36 NSWLR 87 (‘Antico’).
[6]Ibid 91 [E].
In the application of this principle, Hodgson J held:
… I accept that if an officer of the company had summarised confidential legal advice for the benefit of the Board of Directors, that summary would be privileged under Lockhart J’s category (d). However, it seems to me that if the board goes on to discuss a legal proposition in the opinion, and to take into account in making a commercial decision, and if the motivation of the company is relevant to facts in issue in the case, the discussion of the legal proposition would not be privileged, unless either it would as a matter of substance disclose the confidential communication, or it would be unfair to put the company in the position of having to give up the privilege if it wished to qualify or explain the discussion in some way.[7]
[7]Ibid 93 [B].
Hodgson J rejected the claim of legal professional privilege. His Honour held that the statement made by Mr McCann was “primarily as a director with legal knowledge, participating in a commercial decision, rather than either as giving confidential legal advice as a solicitor for the company or as summarising advice previously given.”[8]
[8]Ibid 93 [E].
Turning now to waiver. As Derham AsJ recently observed, “the plurality of the High Court brought the whole issue of waiver under s 122 [of the Evidence Act] back to basics”[9] when the High Court stated in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited:
According to strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege). It may be express or implied. In most cases concerning waiver, the area of dispute is whether it is to be implied. In some cases waiver will even be imputed by law with the consequence that a privilege is lost, even though the consequence was not intended by the party losing privilege. The courts will impute an intention where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.[10]
[9]Seketa v Gadens Lawyers & Ors [2021] VSC 245 (12 May 2021), [43].
[10][2013] HCA 46, [30] (‘Expense Reductions’).
In Banksia Securities Limited v The Trust Company,[11] Sifris J (as his Honour then was) considered issues of privilege and waiver. The defendant had been given legal advice by an external law firm, Gadens (‘the Gadens advice’). The plaintiff submitted that the defendant had knowingly and voluntarily disclosed the Gadens advice or engaged in conduct inconsistent with maintaining its confidentiality, therefore waiving legal professional privilege over the Gadens advice. Amongst other things, the plaintiff submitted that there had been disclosure in a meeting between the defendant’s in‑house counsel, Anthony Evans, and the plaintiff’s in-house counsel, Daniel Fitzgerald. At the meeting, Evans expressly referred to legal advice received from Gadens and foreshadowed serious action that the defendant was considering taking based on that advice. While doing so, Evans held up a copy of a document on Gadens letterhead and indicated to Fitzgerald it was the advice received. Sifris J found that “the impression that Fitzgerald was left with was that Evans was trying to emphasise to him the seriousness of the concerns he was raising by indicating that they arose from the advice…”. Sifris J rejected the plaintiff’s submission that there was waiver of the Gadens advice.
Although waiver is a question of fact requiring consideration of the particular circumstances of the case at hand, it has been established that revealing elements of legal advice, or even its substantive recommendation or conclusion, does not necessarily amount to waiver of the privilege. A distinction should be drawn between disclosing the substance of the legal advice, and disclosure from which inferences may be drawn as to what was advised. Merely exposing the ultimate recommendation or conclusion of legal advice falls short of disclosing the substantive reasoning contained therein and consequently cannot be said to be sufficient disclosure or conduct inconsistent with maintaining privilege over the remainder of the advice.
As was noted by Darke J in RinRim Pty Ltd v Deutsche Bank Australia Limited & Ors:
Generally, the reasoning of the lawyer forms the essence of a legal advice or opinion. The disclosure here is limited to the bare fact that the Advice contains a particular recommendation. Even if the recommendation was regarded as “the substantive recommendation of counsel”, I do not think that the mere disclosure of its existence amounts to disclosure of the gist or essence of the Advice. To my mind, the extent of the disclosure falls short of disclosure of the substance of the Advice within the meaning of s122(3) of the Act.[12]
[11][2017] VSC 583.
[12]Ibid [31]-[32].
Sifris J ruled on the defendant’s internal communications to or from Evans. The plaintiff submitted that privilege could not be sustained in the absence of clear evidence that Evans was acting in a sufficiently independent legal professional capacity for the purpose of those communications, and that the communications were for the dominant purpose of him giving or obtaining legal advice. His Honour rejected that submission.
Some attention has been given in the case law to the status of in-house counsel and the importance of establishing that the in-house counsel was, in making the communications over which privilege is invoked, acting in a legal professional capacity, entailing an element of independence and detachment from the commercial activities of the business at large.
However, such focus on the level of independence of in-house counsel, whilst helpful, should not distract from the primary task of assessing the dominant purpose of the communications. One must be cautious to avoid importing a test of independence that finds no basis within the statutory text.
In Seven Network Ltd v News Ltd, Tamberlin J observed:
Commercial reality requires recognition by the courts that the fact that employed legal advisers not practising on their own account may often be involved to some extent in giving advice of a commercial nature related to the giving of legal advice. Such involvement does not necessarily disqualify the documents relating to that privilege. The matter is necessarily one of fact and degree involves a weighing of the relative importance of the identified purpose.
...
It is the communications themselves to which the privilege attaches, as opposed to protecting the source of the communications generally. As has been previously observed, “the mere fact that a person speaking is a solicitor, and the person to whom he speaks is his client, affords no protection”. Consequently, the focus must be on the dominant purpose of the communications themselves, rather than undue concentration on the role of in-house counsel within the business.
Consequently, a party opposing a claim of privilege may seek to elicit facts that demonstrate in-house counsel was not acting independently, for the purposes of establishing that the dominant purpose of the communications could not be the provision of purely legal advice. It is thus erroneous to speak of a presumption of a lack of independence.
This being said, whilst not extending to purely commercial advice, the nature of the advice to which privilege may attach is not restricted to formal advice as to the law, and may extend to advice as to what should prudently and sensibly be done in the relevant legal framework.[13]
[13]Ibid [47]-[49], [51]-[53].
Sifris J ruled that the defendant had not waived privilege over legal advice by communications between its staff and those of McGrath Nichol, a business and accountancy advisory firm which provided non-legal services to the defendant. In doing so, Sifris J observed:
A document may be privileged to the extent to which it records a privileged communication, even if the document itself would not satisfy the dominant purpose test.[14]
[14]Ibid [65].
The Court has discretion as to whether the documents over which the privilege claim is made ought be inspected.[15] So much was not in dispute between the parties. Indeed, during the course of the hearing (and subsequently), I inspected a sample of the documents helpfully identified by the parties. The sample consisted of seven of the documents from the list of 22 documents included in DST’s summons.
[15]Trade Practices Commission v Sterling (1979) 36 FLR 244, 247.
Turning now to the sample of documents.
Sample of documents
By orders made on 5 October 2020, the parties were required to disclose to each other the existence of all documents of the kind that are referred to in section 26 of the CPA, and are or have been in the party’s possession, custody or control. AMP provided a list of such documents in the form of Schedule A to a letter dated 16 October 2020 from its solicitors, MinterEllison (‘ME’), to Gilbert + Tobin (‘GT’), solicitors for DST. The sample documents are contained in that list (‘AMP’s list of documents’).
Document 5000.0001.0182
AMP’s list of documents titles this document “2018 1009-Project River-Employment options paper. PDF”. It describes the document as an electronic file dated 11 October 2020.
AMP’s submissions
AMP claims privilege over pages 3-5 and page 7. It says those pages record legal advice sought and received from ME on or about 9 October 2018. AMP refers to the information in the column ‘legal implication’ on pages 3-5 and the information under the sub-heading ‘legal assumptions and unknowns’ on page 7. AMP concedes that this is not a memorandum from an external law firm or an internal lawyer. It says it is a circumstance where a person has made a note that, if disclosed, would reveal the substance of legal advice.
The Jolly 8 affidavit at [27] deposes to legal advice provided by ME to AMP dated 9 October 2018. Mr Jolly deposes that he has reviewed the advice. Mr Jolly has cross‑referenced the particular advice relied upon in Exhibit ‘GJ-8’ (tab 17). It is unnecessary to identify the particular lawyer who gave the advice.
The Jolly 8 affidavit refers to Ms Despina Makris, Senior Project Manager, AMP, as the Project Manager responsible for a program of work known as Project River during the period July 2018-April 2019. Mr Jolly deposes that:
(f)as part of preparing the documents for the steering committee and management meetings in relation to Project River, where legal content was required, she requested or was provided with input from internal AMP legal counsel and/or external legal counsel briefed by AMP. Ms Makris used that input to prepare sections of documents to pass on the substance of the legal advice to the relevant steering committee or management committee.
As noted above, exhibited at Tab 17 of GJ-8 is a table setting out information regarding the Redacted Documents, including information that Ms Makris had told me about the Redacted Documents (Makris Table), identifying the basis for the claim for legal professional privilege.[16]
(emphasis in original)
DST’s submissions
[16]Jolly 8 affidavit [25(f)]-[26].
DST says the document is not privileged. It refers to the Jolly 8 affidavit. Ms Teresa Liang is referred to as the Regulatory Response Manager at AMP and someone who has given instructions to Mr Jolly. DST says that Ms Liang does not appear to have given any relevant evidence or advice to Mr Jolly regarding privilege. Mr Jolly at [25(e)(ii)] deposes that Ms Makris was responsible for, amongst other things, “preparing steering committee and working group packs including receipt of legal advice as required to be discussed at senior forums”. Ms Makris is not a lawyer. Mr Jolly deposes at [26] that Ms Makris told him about the redacted documents and identified the basis for the claim of legal professional privilege. Mr Jolly does not say anything from his own knowledge. It is not identified who provided the legal advice in question.
It is unclear why the document is said to be privileged based on advice given by ME to AMP. Is this genuinely a report of what lawyers have advised, or a decision-making process of AMP giving effect to the legal state of affairs it has been led to believe exists? If the document records nothing more than the risks AMP takes, that is not privileged.[17] It is the company acting on legal advice.
Analysis of document 5000.0001.0182
[17]Antico (1993) 36 NSWLR 87.
This document is a powerpoint presentation with an AMP logo on it. The cover page states ‘Project River 2018, Employment Options DRAFT’. The author of the document is unknown. It is self-evidently an internal AMP document. It is dated approximately two years after the legal advice which is relied upon to found the claim of legal professional privilege.
This document is not privileged. Its production would not result in disclosure of a confidential communication made between client and lawyer for the dominant purpose of the lawyer providing legal advice to the client. I reject AMP’s submission that disclosure of the document would result in the disclosure of the substance of legal advice.
The author is unknown and the evidence in the Jolly 8 affidavit connecting the document with the legal advice given by ME two years earlier is vague.
Having inspected the document, it is clearly a document created for the purpose of weighing up different commercial options. The legal implications are listed together with the HR/People implications. There is no reference to the legal implications being a summary or note of legal advice. Indeed, the dot points listed read as commercial advice weighing up legal consequences of the potential options. This is reinforced on page 7 of the document under the sub-heading ‘Legal assumptions and unknowns’. It states that the ‘restraint findings are based upon review of excerpts of a single restraint clause provided by Lee Garfield’. There is no evidence of the identity of Lee Garfield. He is not listed as one of the AMP in-house counsel in the Jolly 8 affidavit. I infer that Mr Garfield is not a lawyer.
Document 5000.0001.0192
AMP’s list of documents titles this document “Project River-Steer Co 27 November 2018.pdf”. It describes the document as an attachment dated 23 November 2018. Parts of this document were disclosed to DST. The parties identified this document as an example of a document partially disclosed. The disclosure occurred over part of page 6 (sixth row, fourth column) and part of page 15 (fourth column).[18] AMP says the document was disclosed inadvertently. DST rejects that submission.
AMP’s submissions
[18]Jolly 9 affidavit, [(9)(c)].
AMP claims privilege over part of pages 5, 6, 9, 15, 16 and 17.[19] Those pages record legal advice and disclose the effect of the legal advice received. This includes legal advice from ME variously dated 29 August 2018, 15 and 25 October 2018. The Jolly 8 affidavit lists that legal advice as being reviewed in preparation of the affidavit. Page 15 lists Ms Golovsky as the ‘owner’ of the matter extracted. It is evident on the face of the document that it contains legal advice.
[19]It does not press its privilege claim in respect of the first paragraph redacted on page 16: Jolly 9 affidavit, [11].
There was inadvertent disclosure of some parts of the document: pages 6 and 15. Expense Reductions is applicable.[20] It matters not that in Expense Reductions, the other party alerted the disclosing party of the mistake. Here, AMP instructed solicitors, and they made a mistake. They then drew DST’s attention to the mistake and requested the unredacted parts of the documents be returned. This is an example of an unintentional or mistaken disclosure of documents and it should be corrected. AMP relies on the Jolly 9 affidavit to show the inadvertence and error. Great care was exercised, regrettably imperfect, to identify with precision the individual parts of documents which if disclosed would reveal privileged advice. The evidence in the Jolly 9 affidavit makes it clear there was no change of mind. The evidence that the disclosures occurred by error is unchallenged. Mr Jolly deposes at [13] that “to the best of my knowledge, there was no deliberate, conscious decision made to produce the Inadvertent Disclosure Extracts.”
DST’s submissions
[20][2013] HCA 46.
The document is not privileged and any privilege has been waived.
Page 15 of the document is an example of an internal working document of the company. The sub-heading is ‘Execution approach, Option 2 key risks and effectiveness of mitigant’. It sets out the execution approach and risks if Option 2 is adopted. It does not purport to refer to any advice received or to summarise legal advice. The column ‘Risk Description’ is a commercial description of risk. It is an internalised view of commercial risks informed by belief as to legal rights and obligations. The information contained under the column ‘Mitigation Plan’ does not suggest anyone attempting to summarise or precis legal advice received. It is AMP setting out a mitigation strategy in light of what it believes is its rights or obligations. Perhaps that was informed by advice received but that is not what is protected by privilege. The fact it is impossible to identify precisely or at all who has given legal advice makes the point it is not legal advice but an internal view of commercial risk. Privilege is not about protecting AMP’s state of mind. It goes no further than protecting a summary or record of legal advice. Otherwise, a company could resist giving any evidence about what it did.
It is not possible to make a sensible claim for privilege if the person who gave the legal advice cannot be identified. You cannot identify, as a start, whether or not they are a legal practitioner. AMP is a large company and had a large working group making decisions on Project River. Many people would have been involved in decision‑making. If it is not evident from the face of the entry or from evidence given as to who provided the advice, then privilege cannot be established. The Jolly 8 affidavit deposes that legal advice was provided by Mr Anthony Lloyd, ME partner, and internal AMP legal counsel, being Ms Khan and Ms Golovsky. It is not sufficient to identify three people who may have given advice.
Here, you cannot tell from the document that it reflects legal advice. Mr Jolly says the approach is to find the advice [relevant to the document] and then marry it up with the document. Nothing here represents legal advice received and that is confirmed in the Jolly 8 affidavit.
As to redaction, AMP turned its mind to this question. The parties negotiated a confidentiality regime and agreed to it on 9 November 2020.[21] On 10 November 2020 there was provision of documents and some had redactions.[22] So AMP’s solicitors turned their mind to redactions at that time. A claim of confidentiality was made; not a claim of privilege. On 26 November 2020, GT wrote to ME asking for the basis of the redactions.[23] There was no response. On 11 December 2020, GT wrote again to ME asking for an explanation for the redactions.[24] There was no response. On 22 February 2021, GT wrote again to ME and said if the redactions were to be made, then AMP would need to demonstrate the basis for them.[25] On 4 March 2021, ME wrote identifying redactions and providing an explanation for some, and withdrawing other redactions.[26] Following that, on 10 March 2021, the witness statement of Mr Craig Ryman was filed. It exhibited several redacted documents. Someone had clearly turned their mind to what should or should not be redacted. It contained different redactions to the November bundle. Some redactions were added. DST were not advised of the different redactions. Subsequently, for the fourth time, ME considered the redactions and then decided to claim privilege over entries which do no more than state AMP’s view of their legal rights. This does not demonstrate mistake by ME. ME considered the documents on four occasions, dropped some redactions and raised some new redactions. It says this is sufficient to claim privilege. If that were the case, and it is not, a party could never be confident about relying on a document produced, no matter how many times the law firm reviews them as there would be no end point.
[21]Exhibit ‘KM-3’ to the Mataraaratchi 3 affidavit.
[22]Exhibit ‘KM-4’ to the Mataraaratchi 3 affidavit.
[23]Ibid.
[24]Exhibit ‘KM-3’ to the Mataraaratchi 3 affidavit.
[25]Ibid.
[26]Ibid.
This is not the same type of factual situation as in Expense Reductions. Here, solicitors looked at this particular document on repeated occasions and did not raise the claim for privilege until the fourth occasion. It is obscure as to whether there is any basis for making the claim now.
Analysis of document 5000.0001.0192
This document is a powerpoint presentation with an AMP logo on it. The cover page states ‘Project River 2018, Steering Committee (reconvene) Option 2 recommendation’. The cover page contains a meeting date which is stated to be 15 November 2018, together with dial in details for the meeting. The author of the document is unknown. It is self-evidently an internal AMP document. The legal advice which is relied upon to found the claim of legal professional privilege contains a range of dates in the two and a half months prior to the document.
There is force in DST’s submission that what has occurred here is an attempt to marry up advice and document. Where the author of the document is unknown, unless it is evident on the face of the document, it cannot be established that the author was aware of the legal advice that is said to found the privilege. It is left to inference. The Jolly 8 affidavit is vague on how Ms Makris was able to provide instructions as to the privilege claim in respect of each document. It appears that the documents have been reviewed and parts of the document that could contain legal advice identified. And then a search has been undertaken for legal advice that may tally up with the subject matter. Here, I am invited to infer that where there is legal advice that covers the same subject matter as that contained in the documents, the author was aware of that advice and the document is a note or summary of that advice. I firmly reject that inference.
Page 5 contains the sub-heading ‘Execution approach, Executive Summary (1/3)’. It refers to two options. In respect of Option 2, there is a reference to a ‘legal analysis’ that has been completed. That reference is made as a counterpoint to the first part of the sentence which refers to DST’s position. It is not evident as a summary or note of legal advice. Reading the sentence as a whole, the reference to ‘legal analysis’ should be appropriately characterised as a commercial conclusion that is perhaps informed by legal analysis. It is not privileged. Its production would not result in disclosure of a confidential communication made between client and lawyer for the dominant purpose of the lawyer providing legal advice to the client.
Page 9 contains the sub-heading ‘Execution approach Options comparison’. In respect of Option 2, there is a reference to AMP’s legal case. The same analysis applies as in respect of page 5. It is not privileged.
Page 15 contains the sub-heading ‘Execution approach, Option 2 key risks and effectiveness of mitigant’. Under the heading ‘Risk Description’, the first two rows state ‘Legal Challenge’ and then the paragraphs over which privilege is claimed follow. The ‘Risk Owner’ is stated to be Ms Golovsky. It is not stated that she is the source of any legal advice. Each paragraph refers to a potential risk. There is no reference to legal advice. Read in context, the reference to Ms Golovsky appears to be a reference to the person who would take ownership of the issue if the risk eventuated. A similar analysis applies to the two paragraphs under the heading ‘Mitigation Plan’. It is a list of dot points reflecting strategy to mitigate risk. And a similar analysis applies to the dot point regarding ‘Development Delay’. Page 15 is not privileged. Its production would not result in disclosure of a confidential communication made between client and lawyer for the dominant purpose of the lawyer providing legal advice to the client.
Page 16 contains a timeline under the sub-heading ‘Execution approach, Option 2 timeline – Bluedoor, OpenDoor and proprietary tools’. Privilege is claimed over text in the ‘Dispute Resolution’ stream. There are references to dispute resolution including litigation. However, there is no reference to legal advice having been obtained. Nor should that be inferred by the reference to dispute resolution. It is not privileged. Production would not result in disclosure of a confidential communication made between client and lawyer for the dominant purpose of the lawyer providing legal services to a client relating to an anticipated legal proceeding in which the client may be a party.
Page 17 contains the sub-heading ‘Execution approach Option 2 timeline – if DST claim breach of MLSA for non-solicitation’. Privilege is claimed over the page. It is a series of steps with an estimated timeline. The content overlaps with the content on page 16. The same analysis applies as for page 16. It is not privileged.
Given the document is not privileged, it is not strictly necessary to consider the issue of whether there was waiver by disclosure. However, as this is a sample document, I will address the issue in the alternative.
Mr Jolly deposes:
I start by noting that, to the best of my knowledge, there was no deliberate, conscious decision made to produce the Inadvertent Disclosure Extracts. I did not make any such decision. I have also made inquiries of:
(a) James Wells, the solicitor with principal carriage of this matter;
(b) Lisa Rodgie, my instructing solicitor from AMP,
who have informed me that they did not make any such decision.
Based on my knowledge of the conduct of the litigation and my review of the handling of the Inadvertent Disclosure Extracts, I believe that the inadvertent disclosure has occurred for the following reasons:
(a)the documents which contain the Inadvertent Disclosure Extracts largely contain non-privileged content, with a small amount of privileged content embedded in the documents;
(b)in all but one case, the claim for privilege was only apparent when the documents were juxtaposed with the underlying legal advice which is the source of the privilege;
(c)the witness statement of Craig Ryman was finalised under considerable time pressure on 5 March 2021, as AMP’s evidence was late. Unfortunately, at that time of finalising that statement, the redactions in documents annexed to the witness statement of Craig Ryman were not cross checked against the redactions of the documents produced in around November 2020.
AMP has not at any time provided MinterEllison with instructions to disclose the Inadvertent Disclosure Extracts. The disclosure of those extracts has occurred in error. have also spoken to Mr Wells, Ms Good and Ms Tandon and asked them whether they were aware that the extracts were subject to a claim of legal professional privilege and nonetheless made a deliberate decision to disclose them. They informed me that- while they do not recall disclosing the Inadvertent Disclosure Extracts - they would not have knowingly disclosed the Inadvertent Disclosure Extracts had they known they were the subject of a claim of legal professional privilege.
This mistaken disclosure of the Inadvertent Disclosure Extracts first became apparent during the preparation of my eighth affidavit and was raised with me by Mr Wells on or about 27 May 2021, shortly after this came to his attention...[27]
[27]Jolly 9 affidavit, [13]-[16].
In Expense Reductions, the High Court held disclosure of a client’s privileged documents by a law firm in the course of the discovery process was inadvertent and unintentional.[28] The High Court held:
[28][2013] HCA 46, [21].
The primary judge’s findings point to an inconsistency in the Lists of Documents, but not one which clearly suggests abandonment of the privilege. The fact that the nine documents the subject of her Honour’s order were listed in both the privileged and non-privileged sections of the Lists of Documents was apt to create confusion about the position taken by the ERA parties and is strongly indicative of mistake in what was otherwise a careful process of discovery. Ms Marshall’s letter of 25 November 2011 to Norton Rose confirms that it was unclear to her what the Lists of Documents conveyed with respect to privilege.
Whatever doubts Marque Lawyers had about the claims for privilege were dispelled by the letter from Norton Rose of 6 December 2011 advising that some privileged documents had been incorrectly listed as non-privileged. This action by Norton Rose was not identified in the reasons of Campbell JA as relevant, yet it was important to convey the true position of the ERA parties. The letter was sent promptly once Norton Rose became aware that mistakes had been made. It was given before Ms Marshall had fully inspected the documents. The disks containing the documents remained with Mr Armstrong, although they should have been retrieved upon notification of the mistake. It is not evident that he came across the 13 documents in question himself.
These circumstances are not indicative of an inconsistent position being taken by the ERA parties’ lawyers such that waiver should be imputed to those parties. The issue of waiver should never have been raised.
...
For present purposes, it is sufficient to observe that, in large commercial cases, mistakes are now more likely to occur. In ISTIL Group Inc v Zahoor, Lawrence Collins J observed that “[t]he combination of the increase in heavy litigation conducted by large teams of lawyers of varying experience and the indiscriminate use of photocopying has increased the risk of privileged documents being disclosed by mistake”.
The courts will normally only permit an error to be corrected if a party acts promptly. If the party to whom the documents have been disclosed has been placed in a position, as a result of the disclosure, where it would be unfair to order the return of the privileged documents, relief may be refused. However, in taking such considerations (analogous to equitable considerations) into account, no narrow view is likely to be taken of the ability of a party, or the party’s lawyers, to put any knowledge gained to one side. That must be so in the conduct of complex litigation unless the documents assume particular importance.
...
What the Court was faced with was a mistake which had occurred in the course of discovery. It was necessary that the mistake be corrected and the parties continue with their preparation for trial.[29]
(citations omitted)
[29]Ibid [33]-[35], [48]-[49], [60].
I accept the evidence in the Jolly 9 affidavit as to inadvertent disclosure. It was unfortunate that redactions were changed in the manner described in DST’s submissions above. However, I do not infer that AMP had a ‘change of mind’ regarding the redactions. Rather, this reflects the reality recognised above by the High Court, namely “in large commercial cases, mistakes [in the discovery process] are more likely to occur”. The principles in Expense Reductions cited above are applicable. The circumstances are not indicative of an inconsistent position being taken by ME such that waiver should be imputed to AMP.
Document 5000.0001.0322
AMP’s list of documents titles this document “20181127 Project River Steer Co Minutes.pdf”. It describes the document as an attachment dated 19 December 2018.
AMP’s submissions
AMP claims privilege over part of pages 2 and 3. Under ‘item’ on page 2 there is a minute of verbal advice provided by Ms Golovsky. It says page 3 discloses the effect of legal advice received, and refers to written legal advice in relation to source code obtained from law firm King Wood Mallesons on or around 1 May 2018. The Jolly 8 affidavit lists that legal advice as being reviewed in preparation of the affidavit.
DST’s submissions
If page 2 of the document includes genuine legal advice given by Ms Golovsky, and she is identified as having given advice, then it is accepted that it is probably privileged.
If the table on page 3 simply sets out the legal framework that AMP believes it is operating in, even if it is taking into account the legal analysis, that is outside the scope of legal professional privilege because it does not disclose legal advice.
Analysis of document 5000.0001.0322
This document contains minutes of a meeting of the project River Steering Committee Meeting. The document has an AMP logo on it. It is self-evidently an internal AMP document. The meeting date is dated approximately six months after the legal advice which is relied upon to found the claim of legal professional privilege.
Ms Makris, from whom Mr Jolly took instructions regarding privilege, is listed as an attendee at the meeting. Ms Golovsky is listed as being in attendance (so too is Mr Garfield). On page 2 of the document, I am satisfied that Ms Golovsky has provided legal advice. The dot point recording that advice is privileged.
On page 5 there is a sub-heading ‘Actions’. In the ‘comments’ section next to the action ‘closure of Option 2 position across Legal query and approach to OpenDoor removal’, there are two sentences. One refers to legal analysis and what it signifies to AMP. The comment is not attributed to Ms Golvsky. It refers to a presentation by ‘MC’ to ‘WG’ and then refers to AMP’s legal position. There are a number of people identified as attendees at the meeting and all have their initials listed. MC and WG are not among them. I do not infer either is a lawyer. The ‘owner’ of the action is stated to be ‘DM/LG’. They are identified in the minutes as Ms Makris and Mr Garfield. Again, I do not infer they are lawyers. This page contains a list of actions, refers to Option 2 and AMP’s position. Page 5 is not privileged. Its production would not result in disclosure of a confidential communication made between client and lawyer for the dominant purpose of the lawyer providing legal advice to the client.
Document 5000.0001.0761
AMP’s list of documents titles this document “20181024_ProjectRiver_OptionsUpdate.pdf”. It describes the document as an attachment dated 24 October 2018.
AMP’s submissions
AMP claims privilege over pages 2 and 4. It says that under ‘#1 Action’ on each of those pages, there is a record of the substance of legal advice received, including advice from ME on 15 October 2018. The Jolly 8 affidavit lists that legal advice as being reviewed in preparation of the affidavit.
DST’s submissions
On its face, the document indicates three sets of actions which the committee has asked to be taken. The document does not identify this as being legal advice of anyone, but rather a strong legal view. It is unclear whose view it is.
Analysis of document 5000.0001.0761
This document is a powerpoint presentation with an AMP logo on it. The cover page states ‘Project River’ and ‘Options Update’. The cover page contains a meeting date which is stated to be 24 October, together with dial in details for the meeting. The author of the document is unknown. It is self-evidently an internal AMP document. The meeting date is nine days after the legal advice which is relied upon to found the claim of legal professional privilege.
On both page 2 and 4 there are a list of actions to be taken. The first action does not refer to legal advice. Rather, it is as described, namely an action. It is not privileged. Its production would not result in disclosure of a confidential communication made between client and lawyer for the dominant purpose of the lawyer providing legal advice to the client.
On both page 2 and 4, under the column “current status” there is commentary. Having read that commentary, I am satisfied it contains the substance of legal advice. It is privileged.
Document 5000.0001.0629
AMP’s list of documents titles this document “Project River_Steer Co 8 February 2019.pdf”. It describes the document as an attachment dated 9 October 2018.
AMP’s submissions
AMP claims privilege over parts of pages 6, 9, 10 and 15. Page 6 records the substance of legal advice given from Anthony Lloyd of ME on or about 25 October 2018. The Jolly 8 affidavit lists this advice as being reviewed in preparation of the affidavit.
Page 9 records the substance of legal advice given from Sameera Khan, in-house counsel of AMP, to Ms Makris, on 7 February 2019 and other legal advice as to the process adopted. The Jolly 8 affidavit lists this advice as being reviewed in preparation of the affidavit. The document is replete with references to legal risk.
Page 10 records legal advice and discloses the effect of legal advice received. This includes legal advice from ME dated 15 October 2018. Ms Golovsky is identified as the “owner” of the material extracted. The Jolly 8 affidavit this advice as being reviewed in preparation of the affidavit.
Page 15 records the substance of legal advice received including an advice from ME on or about 29 August 2018 and on or about 4 October 2018. The Jolly 8 affidavit lists these latter two legal advices as being reviewed in preparation of the affidavit. It is accepted that part of the redacted text on page 10 is not privileged as it can be characterised as a record of a commercial decision. However, there remains other text on page 10 which is privileged. It is a record of the substance of advice. The words “which reduces the likelihood” reflect the substance of legal advice received.
DST’s submissions
If a company board discusses a proposition and takes it into account in making a commercial decision, this does not attract privilege unless it discloses the substance of legal advice.[30] The legal advice does not throw a cloak over company decision‑making. The same analysis applies here.
[30]Antico (1993) 36 NSWLR 87.
On page 15 of the document, there is a list of key project risks identified by AMP. One claim is not being pursued but another is. The part redacted is not legal advice. DST has seen it and it reflects an entirely commercial decision. Whether that decision was made because lawyers said it was the best way out of a problem is a separate question.
Analysis of document 5000.0001.0629
This document is a powerpoint presentation with an AMP logo on it. The cover page states ‘Project River 2019’ and ‘Steering Committee’. The cover page contains a meeting date which is stated to be 8 February 2019, together with dial in details for the meeting. The author of the document is unknown. It is self-evidently an internal AMP document. The meeting date postdates the legal advices relied upon to found the claims of legal professional privilege by periods ranging between one day to approximately six months.
Page 6 contains a plan “representative of all work streams and key deliverables”. There is a claim of privilege over three words on that page. They do not contain the substance of any legal advice. Page 6 is not privileged. Production would not result in disclosure of a confidential communication made between client and lawyer for the dominant purpose of the lawyer providing legal advice to the client.
Page 9 contains the subtitle “Employment risk, direction required on AMP position”. The first dot point contains an action to be undertaken. The other part of page 9 over which privilege is claimed refers to risk. It does not refer to legal advice given by Ms Khan to Ms Makris. Rather, it seeks the direction of the Steering Committee on a number of issues. It concludes with a speculative sentence on risk. This is a process of commercial decision-making not a summary of legal advice. Page 9 is not privileged. Production would not result in disclosure of a confidential communication made between client and lawyer for the dominant purpose of the lawyer providing legal advice to the client.
Page 15 contains the subtitle “key project risks”. It comprises of a table. One row in that table is titled “employee litigation”. Privilege is claimed over one sentence. It is conceded that the first part of the sentence is not privileged. AMP submits that the second part of the sentence is privileged. The whole sentence reflects a commercial decision-making process. The second part contains a general reference: “reduces the likelihood… to argue”. There is no reference to legal advice. Even if the commercial decision-making process reflects an acceptance of legal advice, that is in itself insufficient for it to attract privilege. Page 15 is not privileged. Production would not result in disclosure of a confidential communication made between client and lawyer for the dominant purpose of the lawyer providing legal advice to the client.
Document 5000.0001.0434
AMP’s list of documents titles this document “20180828_ProjectRiver_MngMeeting.pdf”. It describes the document as an attachment dated 27 August 2020.
AMP’s submissions
AMP claims privilege over parts of pages 2, 4, 8 and 9. Under “1. Action Items” on page 2, there is a record of legal advice obtained and disclosure of part of the effect of that advice.
Page 4 records the substance of legal advice sought and legal advice received. Legal advice to the effect of the extract was provided by Ms Golovsky on or about 16 August 2018 and on or about 20 August 2018. The Jolly 8 affidavit lists this advice as being reviewed in preparation of the affidavit.
Page 8 records obtaining legal advice and discloses part of the effect of legal advice received.
Page 9 records obtaining legal advice and discloses the effect of legal advice received. External written legal advice was obtained from King Wood Mallesons in or around 1 May 2018. The Jolly 8 affidavit lists this advice as being reviewed in preparation of the affidavit. This is an example recording unequivocally the internal and external legal advice received. It is not an example of a commercial decision. If this passage was revealed to DST, they would know the fact of the advice having been received and its substance.
DST’s submissions
Page 9 states the “following conditions need to be satisfied before Day 0 can be executed”. Privilege is claimed over the first dot point. It is difficult to understand why. If obtaining favourable legal advice was a condition to be satisfied, that does not amount to a record of legal advice.
Analysis of document 5000.0001.0434
This document is a powerpoint presentation with an AMP logo on it. The cover page states ‘Project River 2019’ and ‘Management Update’. The cover page contains a meeting date which is stated to be 28 August, together with dial in details for the meeting. The author of the document is unknown. It is self-evidently an internal AMP document. The meeting date postdates the legal advices relied upon to found the claims of legal professional privilege by periods ranging between approximately two years and two years, four months.
Page 2 refers to an action to be undertaken. That is, a step to be undertaken in the future. It does not record what has already occurred. AMP’s submission that it records the obtaining of legal advice must be rejected. Production would not result in disclosure of a confidential communication made between client and lawyer for the dominant purpose of the lawyer providing legal advice to the client.
Page 4 contains the subheading “legal update”. It contains a record of advice sought and obtained from Mr Lloyd by AMP in-house counsel. It is privileged. Production would result in disclosure of a confidential communication made between client and lawyer for the dominant purpose of the lawyer providing legal advice to the client.
Page 8 contains a subheading “status summary-critical path activity”. It is a table. One row refers to “legal advice”. It simply records having obtained legal advice and further action required in respect of decision-making. It is vague. It does not contain any details of the advice sought or received. It is not privileged. Production would not result in disclosure of a confidential communication made between client and lawyer for the dominant purpose of the lawyer providing legal advice to the client.
Page 9 contains a subheading “pre-and post day 0 activities”. It states that a “number of critical pre-tasks are required in order to ensure a high level confidence executing Day 0. The following conditions need to be satisfied before Day 0 can be executed”. Privilege is claimed over the first dot point. I reject the submission that this records legal advice sought or obtained. It is an action step. It is a step to be undertaken in the future. Given that, I reject the submission that it discloses the advice given by King Wood Mallesons approximately two years and four months earlier, namely in or around 1 May 2018. It is not privileged. Production would not result in disclosure of a confidential communication made between client and lawyer for the dominant purpose of the lawyer providing legal advice to the client.
Document 5000.0001.0417
AMP’s list of documents titles this document “ProjectRiver_Steer Co 13 December 2018.pdf”. It describes the document as an attachment dated 13 December 2018.
AMP’s submissions
AMP claims privilege over parts of page 10. It records the substance of legal advice received from Mr Lloyd of ME on or about 25 October 2018. The Jolly 8 affidavit lists this advice as being reviewed in preparation of the affidavit. The document postdates the legal advice relied upon to found the claim of legal professional privilege by approximately two months.
DST’s submissions
No specific additional submissions.
Analysis of document 5000.0001.0417
This document is a powerpoint presentation with an AMP logo on it. The cover page states ‘Project River 2018’ and ‘Steering Committee’. The cover page contains a meeting date which is stated to be 13 December 2018, together with dial in details for the meeting. The author of the document is unknown. It is self-evidently an internal AMP document. The meeting date postdates the legal advice relied upon to found the claims of legal professional privilege by approximately two months.
Page 10 contains a subheading “Option 2, Schedule and key dates”. It states that the schedule on the page “represents key milestones across each stream of Project River.” Next to the tab titled “Commercial” there are a series of milestones listed under particular dates. There is reference to dispute resolution steps including litigation. However, there is no reference to legal advice having been obtained. Nor should that be inferred by the reference to dispute litigation. It is not privileged. Production would not result in disclosure of a confidential communication made between client and lawyer for the dominant purpose of the lawyer providing legal services to a client relating to an anticipated legal proceeding in which the client may be a party.
Turning now to the next part of the dispute, namely inspection of exhibits to the witness statement of Ms Roberts and Mr Aldworth.
AMP’s employee access application
The dispute here is whether specified AMP employees can access Exhibit ‘ER-4’ to the Roberts witness statement 2 and Exhibits ‘AA-2’ and ‘AA-3’ to the Aldworth witness statements 1 and 2 respectively. These documents have been provided to AMP’s legal advisors and independent expert but not the employees. DST resists such inspection.
AMP’s submissions
DST claims $27 million in damages from AMP. The exhibits to the Roberts and Aldworth witness statements contain key evidence on quantum. AMP refers to DST’s particulars of loss and damage.[31] It includes matters such as retention bonuses and replacement staff. There is a claim for approximately $7 million for salary increases in the future. There is also a claim for approximately $27 million for loss of business from AMP. Those claims are said to be supported by Aldworth and Roberts. Mr Aldworth gives evidence of the cost of staff leaving DST to join AMP. This is referred to as ‘retention cost’. Ms Roberts uses some of that information and creates a forecast said to support the future loss.
[31]Letter from GT to ME dated 2 December 2020, contained in Exhibit ‘GJ-7’ to the Jolly 7 affidavit.
Exhibit ‘AA-2’ to the Aldworth witness statement 1 is a spreadsheet listing staff retained by DST. It identifies staff members by a range of information. It contains highly specific information of staff members. This information includes share options, salary increases and bonuses allegedly paid to them to induce them to stay with DST. Totals are then provided. It also notes employees who left the employment of DST and moved to AMP. There is another spreadsheet which identifies what had to happen in order to address the fact that they had left DST for AMP. So, for example, who was recruited or retrained into the position vacated by the staff member who left. It identifies what is said to be lost revenue as a consequence of staff members moving to AMP. As confidentiality arrangements currently stand, the document cannot be viewed by any officer of AMP under the current confidentiality regime. It can be viewed by in-house legal counsel and independent experts. It is, however, necessary for a designated officer of AMP to have access to the information, with an appropriate undertaking, to review and provide instructions.
DST has provided anonymised particulars of Exhibit ‘AA-2’.[32] They stripped out information about 25 specific individuals. They provide a total or average of costs incurred and lost revenue. There is no granularity in the data that can enable an officer of AMP to properly look into it and understand what is driving the calculations. The anonymised particulars are not the evidence DST seeks to rely on and so are not a sound proxy for the evidence to be given at trial.
[32]Exhibit ‘KM-5’ to the Mataraaratchi 4 affidavit.
Exhibit ‘AA-3’ is an updated version of ‘AA-2’. The same point applies as for ‘AA-2’.
Exhibit ‘ER-4’ is a spreadsheet. It contains historical revenue from DST derived from AMP. That information is well-known to AMP because they paid DST. That is page one of the spreadsheet. Pages 2-6 underpin the summary and contain information known to AMP. There is a forecast. The data underpinning it is contained in the exhibit. It identifies specific components of the loss claimed by DST.
DST provided a redacted form of Exhibit ‘ER-4’.[33] Swathes of the document are redacted. For example; on pages 7-11 only the totals are left unredacted. Leaving aside issues of historical revenue, the redacted version largely leaves the person reviewing it in the dark.
[33]Exhibit ‘KM-4’ to the Mataraaratchi 3 affidavit.
Exhibit ‘ER-4’ contains critical evidence going to quantum: see Jolly 7 affidavit. It is therefore important evidence in the proceeding, particularly given the size of the claim. The Jolly 7 affidavit provides important context about the relevance of this evidence commercially. The parties are not trade rivals. DST provides software maintenance development services in the wealth management industry. AMP does not. It is a wealth management services provider. It has made a decision to develop and manage the software in-house. AMP does not project that service into the marketplace. There is no risk the type of information contained in Exhibit ‘ER-4’ would be misused by AMP cf. Mobil Oil Australia Ltd v Guina Developments Pty Ltd.[34] The parties are no longer in a commercial relationship. It has been terminated. There is no risk that the type of information in the exhibit will be used in future trade negotiations between the parties. There is no evidence to suggest it is a likely outcome.
[34][1996] 2 VR 34.
The scenario contemplated in Exhibit ‘ER-4’ is a hypothetical one. Rather than having the relationship between DST and AMP end in 2019, Ms Roberts posits that the relationship would have continued to 2029. Whilst parts of the forecast are based on information that occurred in 2018 when the relationship is on foot, it uses hypothetical data. This obviates the risk of misuse of the information contained in the exhibit. There is no evidence of ongoing recruitment activities by AMP. AMP says, in answer to a question by the Court, that a version of Exhibit ‘ER-4’ with the employee name and employee number redacted would suffice for their purposes.
AMP seeks to have four specific employees access the exhibits, subject to appropriate confidentiality obligations and the Harman obligation. Mr Boyle would have access to the Aldworth exhibit. Three AMP employees have access to the Roberts exhibits. Her evidence relates to forecasting, financial and technical issues (amount of work to be done to develop and maintain software). The three employees nominated by AMP cover those issues.
While this evidence has been the subject of analysis by a forensic accountant retained by AMP, namely Mr Cairns, he is not a subject matter expert in the same way as the AMP employees. He is a forensic accountant and does not have specific knowledge of the software. The AMP employees do have specific knowledge of the software. Moreover there are aspects of Mr Cairns’ report where he says he cannot comment because he does not have the knowledge required to do so. Therefore his evidence, whilst useful from a methodological point of view, does not cover the field in respect of the evidence to be used at trial.
It would be a fetter on the way the proceeding is conducted not to have access to the evidence. Mr Jolly deposes that the evidence is of central importance to DST’s pecuniary claim and it is therefore imperative that AMP have a proper opportunity to understand, provide instructions and potentially respond to the evidence. At the moment those of its employees with relative expertise do not have access. Mr Jolly deposes that the only way AMP can have a proper opportunity to assess the evidence is for them to have access.[35] It is otherwise an unfair restriction on AMP’s ability to defend the claim.
[35]Jolly 7 affidavit, [40]-[42], [44].
If the access sought by AMP is granted, there will be no prejudice to DST. Appropriate confidentiality arrangements can be put in place. The information is very specific. It is unlikely to be misused. As discussed above, the evidence is largely hypothetical and as such, is unlikely to be of any commercial value or utility. Moreover, the parties are not competitors. Their relationship ended two years ago. There is no basis to establish there would be misuse. AMP’s insourcing has been successful, as evidence at trial will disclose, and so the supposition that DST and AMP are likely to engage in future commercial relationship is hypothetical and not immediate. On the other hand, the evidence is the key evidence on quantum and it is essential AMP’s lawyers can obtain instructions on it.
DST’s submissions
There is a commercial relationship between the parties. DST says the factual background to the dispute includes the following. In 2006 and 2007 DST started to develop software. They initially sold the idea to AXA who took it on for one of its products. Events snowballed over the next 10 years or so. AXA was taken over by AMP and the product began to assume a large part of the operations of AMP North. As a consequence of the software proprietary, the only type of people who had particular expertise in maintaining its source code and developing it were people who did work and had worked for DST. In 2018 AMP was dissatisfied with DST services continuing. AMP had the licence to take over the rights to the source code and to make their own changes ie to bring software maintenance services in house. In 2018, AMP began dealing with Mr Mark Cassar, originally a founding director of DST. He had left DST. Mr Cassar was recruited back by AMP to work for them in putting together a team of people who they would need to maintain the software themselves in the event they brought it in-house. That is the process which gives rise to this litigation. DST says AMP solicited employees and a large percentage of staff left to work for AMP. They work on the software for AMP.
The parties have an ongoing commercial sensitivity. If AMP’s in-house experiment does not work, then AMP will have to come back to DST and re-negotiate terms for DST to take over. A substantial number of documents in this proceeding are not just the subject of privilege claims but are under terms of a confidentiality regime that AMP insisted upon: see Mataraaratchi 3 affidavit. AMP is attempting to do something experimental and it may not work. They may be driven to engaging an external supplier such as DST. The commercial insights that either party has into workings of the other are of enormous advantage in any prospective negotiation. Such disclosure could provide AMP with an unfair competitive advantage in any future outsourcing.
Exhibit ‘ER-4’
This exhibit is essentially accounting evidence. DST has produced evidence to allow the calculation by the Court of its claim for lost profits. The claim is predicated on the hypothesis that if AMP had not breached the contract by poaching DST’s employees, it would have been compelled to continue dealing with DST and accepting it services. Accordingly, DST has disclosed both its assumptions about the income it would receive from AMP in that scenario, and the costs that would have been associated with providing those services. That information is recorded in Exhibit ‘ER-4’. That exhibit was prepared for this proceeding. It includes a client-based (AMP) profit forecast. This includes calculations that disclose DST’s confidential commercial margins. The exhibit exposes both the revenue forecast (to be paid by AMP to DST) and DST’s anticipated expenses (in providing those services). DST readily expect that AMP may have key insights into revenue (as it is a calculation of what AMP would have paid DST if AMP retained DST’s services). That is why a redacted copy of confidential exhibit ‘ER-4’ has been put forward as a solution to exposing revenues. The redactions conceal information revealing DST’s internal financial figures and calculations that would allow AMP to calculate sensitive information regarding DST’s finances including profit margin and profitability: Mataraaratchi 4 affidavit.
AMP seeks that three of its employees access Exhibit ‘ER-4’. They cannot give any insight into the cost structure of DST. AMP has never had access to that information. DST did not wish for that information to be used in circumstances in their ongoing relationship as trading entities.
The Jolly 7 affidavit addresses this issue and explains why AMP says it is necessary for DST to give access to the whole of the information: see paragraphs [42]-[44]. It refers to three AMP employees: Sean O’Sullivan, Mark O’Sullivan and Paul Minne. DST says as follows.
(a) Sean O’Sullivan – AMP say that he could give insight to revenue projections. There is however no suggestion he would have insights as to costs.
(b) Mark O’Sullivan – AMP say that he can comment on forecast revenue and profits. He can look at revenue forecasts on the information provided. It is not identified that he would have insights into DST’s cost base and he could not. Any information he brings to profit calculations will be on the basis of his experience as an accountant and actuary. That is the same type of information on which AMP’s expert (Mr Cairns) has commented upon.
(c) Mr Minne – he is also said to comment on historical revenue amounts and required resources. He can do that on the redacted confidential exhibit. He can comment on AMP’s cost base but he has no insight into DST’s cost base.
Mr Jolly does not identify what it is about the redacted confidential exhibit that is inadequate to AMP’s needs: see Mataraaratchi 3 and 4 affidavits.
It is quaint for AMP to make this application in one respect. From the outset, AMP has insisted that it and DST have respective conflicting interests as consumer and supplier. It expressly referred to this relationship at the time it was agreed that there would be a confidentiality regime. Now it says there is no relationship between the parties giving rise to any concern about disclosure of this material.
Mr Jolly says that he does not believe DST’s evidence could be addressed by an independent expert: see Jolly 7 affidavit, [44], [45]. He says lay evidence by AMP would be required. This is peculiar because Mr Jolly does not advert to the fact that he has already put on such evidence, namely the expert report of Mr Cairns. Mr Jolly does not depose as to why Mr Cairns would require any further information. Mr Cairns was not just given the unredacted information but all information that he requested from DST. At the end of that process, DST does not know why the three employees of AMP need to go through the sensitive information in DST’s cost base in order to properly answer a forecast loss and profits claim.
Exhibits ‘AA-2’ and ‘AA-3’
These exhibits contain employee information. DST suffered an exodus of employees. They were attracted by generous offerings from AMP to work there. In order to hold onto staff who had been retained, DST agreed to increases in remuneration. The claim made is made in respect of that. The confidential exhibit stating what those employees were paid beforehand, and then what they were paid afterwards, is available to AMP’s lawyers. Given DST claims that AMP has poached its employees, providing AMP’s human resources department access to this information is a matter of considerable commercial sensitivity. It would advantage AMP enormously in soliciting any further employees. AMP has an ongoing interest in doing so because DST’s employees are experts in the particular field of operation.
The anonymised particulars contain the categories of numbers of employees retained. It is only about 25 employees. DST justly considers that if it just redacts the names of each person, AMP know those staff well enough to enable them to make, at worst, an informed guess as to who they are and what they are paid. That is the reason DST resists disclosure to AMP’s employee, Mr Alex Boyle.
The evidence of Mr Jolly is that Mr Boyle is likely to be able to comment on market salaries, retention bonuses and the life cycle of technology and executive employees. Mr Boyle is at liberty to do that. Cross-examination can take place of DST witnesses as to how much they pay employees. Mr Boyle cannot speak to DST’s internal wages and cannot speak to particular decisions DST made as to payment of bonuses.
If this information leaked then it could be used as leverage from retained staff because someone got better deal from the negotiations than they did. There is a clear case of commercial sensitivity. It would empower AMP to poach staff. There is no persuasive reason as to why they would have to have in-house human resources officer look at the information.
Analysis of AMP’s employee access application
In Cargill Australia Ltd v Viterra Malt Pty Ltd,[36] the Court of Appeal stated:
A decision on who should have access to confidential discovered documents involves a balance of competing considerations. On the one hand, a party to litigation has an interest in having access to documents held by its opponent that are relevant to the issues in the litigation. This is particularly so if the party is a defendant who is an unwilling participant in the litigation and who, as a matter of procedural fairness, is entitled to know the case it has to meet. On the other hand, where the parties are commercial competitors (or “trade rivals”) and one of the parties discover sensitive business information which, if used by the other party for purposes other than the litigation, would prejudice the first party’s commercial interests, the first party has an interest in minimising the risk of such use. The ultimate question is what is necessary for the attainment of justice in a particular case.[37]
[36][2018] VSCA 260 (‘Cargill v Viterra’).
[37]Ibid [122] (per Kyrou and McLeish JJA).
In Cargill v Viterra, the Court of Appeal applied the following principles, which I gratefully adopt.[38]
[38]The same principles were also applied in Fonterra Brands Australia Pty Ltd & Anor v Bega Cheese Ltd [2018] VSC 471 (Daly AsJ).
In most cases, the fact that documents are confidential does not provide a proper basis to restrict disclosure of a relevant document to an opposing party and its legal representatives. However, the question of whether production ought to be compelled may arise if there is a real risk that significant harm may be caused to a party beyond what is justified in the circumstances of the case.
In determining whether or not production should be required, the court must engage in a balancing exercise between the interests of the party seeking production and the interests of the party who has been compelled to discover a document or documents. The ultimate question is what is necessary for the attainment of justice in a particular case.
In considering this question, relevant factors include the following:
(1) The degree of relevance of the document or documents.
(2)The extent to which the document or documents are confidential, including whether the information has already been disclosed in the proceeding.
(3)The use to which the information might be put once it is known, such as by an opposing party who is a trade rival or is also an opposing party in another proceeding (or an anticipated or pending proceeding).
(4)The utility or procedural fairness, or otherwise, of imposing restrictions or conditions, including limiting production to certain persons upon the provision of confidentiality undertakings.
(5)Any other matters relevant to the due administration of justice, including ensuring compliance with the overarching purpose in the Civil Procedure Act 2010 (Vic).
Whatever form of restrictions or conditions might be ordered, such orders would, ordinarily, be subject to review as the proceeding progresses to, or is the subject of, a trial. This ensures that the orders made are in the interests of justice based on the particular circumstances extant from time to time.[39]
(citations omitted)
[39]IOOF Holdings Ltd v Maurice Blackburn Pty Ltd (No 2) [2016] VSC 594, [8]-[11] per Elliott J.
Turning now to application of the factors above.
Degree of relevance
It is common ground these documents are relevant to the proceeding and the key evidence that DST relies upon to establish loss. It is instructive to refer to DST’s claim.
Paragraph 18 of DST’s claim lists 27 persons employed by it, and one contractor engaged by it, as at the beginning of 2019. Paragraph 19 alleges that AMP directly solicited DST employees. Paragraph 20 names 16 employees and one contractor it says AMP has solicited. Paragraph 21 names 11 employees who it says resigned from the employ of DST and accept employment with AMP by reason of AMP solicitation in breach of the MLSA.
In paragraphs 23-26 and 29, DST alleges that AMP wrongfully interfered with the contractual relations between DST and its employees. In particular, it is alleged that AMP had knowledge of the terms of the Restraint (described above) provisions in the employment contracts and encouraged them to leave DST’s employ and commence working for AMP including by advising each of them that the terms were unenforceable or did not preclude them commencing work for AMP. In paragraphs 27 and 28, it is alleged that the employees who resigned from DST commenced employment with AMP in breach of the Restraint, and that they were some of DST’s most highly skilled and experienced employees.
In paragraphs 22 and 30 of its claim, DST says it suffered loss and damage by reason of AMP’s breach of the MLSA and AMP’s wrongful interference in the contractual relations. It particularises losses to include: loss of expertise of departing staff members, cost of paying higher salaries to staff members to discourage them from leaving DST, loss of AMP business as AMP would not have caused the termination of its agreement with DST if it could not procure the necessary staff with experience to provide the maintenance services, loss of business and lost profitability. It is stated further particulars loss and damage will be provided.
By letter dated 2 December 2020 from GT to ME, DST provided further particulars.[40] On behalf of DST, GT stated that it “does not have in its possession a single document that exhibits our client’s loss and damage. Rather the extent of our client’s loss and damage is to be found in a substantial body of financial records.” The letter stated that DST would provide witness statements containing the evidence of loss. The letter gave some particulars of loss and damage. At paragraph 8, it stated the amount claimed for loss resulting in annualised salary increases paid to staff targeted by AMP for solicitation (‘annualised salary increases’). It stated those amounts were paid to retain staff employment. At paragraph 9 it stated the amounts claimed for each of the following: retention bonuses paid to staff to encourage them to remain in employment with DST, loss in staffing cost by reason of DST promoting existing staff into positions occupied by former employees who had moved to AMP (‘ex-employees’), replacement staff hire costs to cover for the ex-employees, lost revenue by reason of the departure of the ex-employees, and the cost of training existing and new staff to replace the ex-employees. A much larger component of loss claimed, in excess of $7 million, is the future loss because of the annualised salary increases. The most significant component of loss claimed, in excess of $27 million, is for future loss of AMP business. It is stated that “quantification of this loss is based on DST’s revenue forecast calculations for 2019-2029, particulars of which will be provided in our client’s evidence.”
[40]Letter from GT to ME dated 2 December 2020, contained in Exhibit ‘GJ-7’ to the Jolly 7 affidavit.
I have inspected the three confidential exhibits in dispute here. Exhibit ‘AA-2’ contains a spreadsheet with itemised retention costs with respect to 25 named employees. I will refer to this as the ‘retained employees spreadsheet’. It specifies the remuneration increase for each of those employees. Documentary evidence relating to this is then provided. The same exhibit also includes a spreadsheet listing employees who have departed and contains their length of service, and the positions they occupied during employment with DST. I will refer to this as the ‘ex-employee spreadsheet’.
Ms Mataraaratchi deposes that the information contained in Exhibit ‘AA-3’ is an amended version of that contained in Exhibit ‘AA-2’ and “contains highly confidential information of DST relating to its resources.”[41] It is common ground that the same analysis for Exhibit ‘AA-2’ must apply to Exhibit ‘AA-3’ and accordingly I will not address Exhibit ‘AA-3’ separately.
[41]Mataraaratchi 3 affidavit, [32].
Turning now to Exhibit ‘ER-4’. I have also inspected it. It contains spreadsheets. They have been converted into PDF format and number 13 pages. I will refer to it in more detail below.
Confidentiality of documents
It is common ground that the documents are confidential. I accept the evidence in the Mataraaratchi 3 affidavit that the documents are confidential.[42] There is an existing confidentiality regime in place in this proceeding, and neither party contends that there is a legitimate public interest in favour of disclosure of the documents.[43] Nor is it contended that the Harman Undertaking alone provides sufficient protection for the documents. Indeed, AMP’s application is confined to access by specified employees. Moreover it is submitted by AMP that access to those employees is sought upon the employees providing an undertaking. It should be added that the specified employees themselves are not party to this litigation.
[42]Ibid [23]-[25].
[43]Cf Bolitho & Anor v Banksia Securities Limited & Ors (No 9) [2020] VSC 309.
Drilling down now to the dispute here.
The list of the 25 employees named in the retained employees spreadsheet in Exhibit ‘AA-2’ does not appear in the pleadings. The information appears to be confidential to DST, as does the evidence it provides in support of that information. This weighs against AMP’s application with respect to such information.
On the other hand, the 11 employees in the ex-employee spreadsheet in Exhibit ‘AA‑2’ are named in paragraph 21 of the statement of claim. This weighs in favour of allowing AMP’s application with respect to the ex-employee spreadsheet.
Exhibit ‘ER-4’ contains a number of spreadsheets. The spreadsheet on page 1 is titled ‘AMP revenues invoiced’. This information must already be known to AMP. So too the information on page 4-6, save in one respect. Those pages contain a table of total amounts billed to AMP. Save for one row of the spreadsheet on page 6 in the row ‘other’, this information must also be known to AMP. So too the information contained in the spreadsheet on pages 11-13. It details of amounts billed to AMP. This weighs in favour of disclosure to AMP’s nominated employees.
Page 2 contains an AMP revenue forecast spreadsheet (2019-2029). It includes information that remains confidential between the parties, namely DST’s expenses (itemised), profit and profit margin. Such categories of information also appear in the spreadsheets on page 3. Pages 7-10 to are spreadsheets on DST’s production support and projects, including costs. The confidentiality of these pages weigh against disclosure to AMP’s nominated employees.
Use of information contained in documents by opposing party
DST has established it will suffer an element of prejudice or other detriment by disclosure of some, but not all, of the information contained in the exhibits to the specified AMP employees. True it is that the relationship between AMP and DST has broken down, however circumstances change. Current commercial sensitivities are recognised by both parties in adopting a confidentiality regime.
Importantly, given the nature of this proceeding, there is a prospect that, if disclosed, the information could be used by AMP to solicit DST employees. It would have a real commercial advantage in knowing the remuneration of current DST employees. This weighs against disclosure of the retained employees spreadsheet and the evidence supporting the calculations contained in Exhibit ‘AA-2’.
In respect of Exhibit ‘ER-4’, I accept that the information regarding DST’s operational expenditure and profit margins are of commercial sensitivity and if disclosed to AMP’s nominated employees, could provide AMP with an unfair competitive advantage.[44] I have referred to relevant pages above. To reiterate, they are pages 2, 3 and 7-10 of Exhibit ‘ER-4’. This weighs against disclosure of those pages to AMP’s nominated employees.
[44]There is evidence regarding this contained in the Mataraaratchi 4 affidavit, [8]-[10], [33].
There can be no real prejudice or other detriment to DST in the disclosure of the historical amounts billed by DST to AMP. I refer to pages 1, 4-6, 11-13 of Exhibit ‘ER‑4’. As AMP says, those amounts are known to it. The same analysis applies to the ex-employees spreadsheet contained in Exhibit ‘AA-2’. This weighs in favour of disclosure of those pages to AMP’s nominated employees.
I am not satisfied that disclosure of the information in the ‘other’ column on page 6 of the spreadsheet in Exhibit ‘ER-4’ to AMP’s nominated employees could cause prejudice or detriment to DST. It relates to past one-off events. This also weighs in favour of disclosure.
Utility or procedural fairness of imposing restrictions or conditions
It should be recalled that AMP’s lawyers, ME, and its in-house counsel have access to the exhibits in dispute here.
Turning first to the Aldworth exhibits. In his witness statements, Mr Aldworth provides a detailed description of the methodology he has used calculated loss. Exhibit ‘AA-2’ provides the breakdown of the loss. In respect of the retained employees spreadsheet, I reject AMP’s submission that in order to properly defend the proceeding, Mr Alex Boyle (Head of Reward, AMP) must have access to it. It is said that Mr Boyle would be able to comment on market salaries, retention bonuses and the life cycle of technology and executive employees. An independent expert could also provide such an opinion. Moreover, the issue here is not whether the amounts were paid to the retained employees. Even if it was, this would be established by cross-examination of DST’s witnesses. The real dispute is whether the payments were caused by the alleged breaches by AMP. If so, do they truly reflect the quantum of DST’s loss, or has Mr Aldworth used an incorrect methodology? His methodology is apparent from his witness statement.
As discussed above, Exhibit ‘AA-2’ also contains evidence to support the calculation in the retained employees spreadsheet.[45] That evidence need not be detailed here but it is not suggested there is any dispute about its veracity. Even if there was, as ME has access to it, DST’s witnesses could be cross-examined on it.
[45]Pages 2-71 of Exhibit ‘AA-2’.
In light of the above, I reject AMP’s submission that it is necessary to have access to the retained employees spreadsheet and the evidence supporting it to properly defend the proceeding.
Given that I do not consider the information in the ex-employees spreadsheet is particularly confidential as between the parties, it is unnecessary to further address it here.
As a matter of completeness, I will refer to the alternative version of Exhibit ‘AA-2’ provided by DST for inspection by AMP’s nominated employees.[46] It will be recalled that AMP says this does not suffice. I have inspected the exhibit. It does not resolve the issue in dispute as it provides global amounts. It would not enable the Aldworth evidence to be properly tested.
[46]Exhibit ‘KM-5’ to the Mataraaratchi 4 affidavit.
Turning now to Exhibit ‘ER-4’. I accept the evidence that Sean and Mark O’Sullivan and Mr Minne could comment on historical revenue amounts.[47] I accept that Mr Mark O’Sullivan could comment on forecast revenue and profits given his actuarial qualifications and experience. As discussed below, an expert could (and has) commented on forecast revenue and profits. There is no evidence to suggest Mr Sean O’Sullivan or Mr Minne have actuarial qualifications. It is unclear in what capacity they would be commenting on DST’s forecast revenue and profits. AMP refer, in particular, to Mr Minne being able to comment on the need for purchase of licences going forward and rates charged by DST. As discussed below, there is no evidence to suggest the expert witness retained by AMP has been constrained in providing his opinion due to a lack of knowledge regarding such matters.
[47]Jolly 7 affidavit, [43].
In his expert report dated 1 March 2021,[48] Mr Martin Cairns, a forensic accountant, opines on the Roberts witness statements 1 and 2. He specifically opines on Exhibit ‘ER-4’ and whether or not the calculations are accurate and whether the methodology adopted is reasonable. Whilst he indicates limitation on his ability to opine, this relates to the form of management accounts not any lack of technical know-how or lack of knowledge of the particular software utilised or services provided.[49] In light of Mr Cairns’ expert report, I reject AMP’s submission that it is necessary to have access to Exhibit ‘ER-4’ to enable it to properly defend the proceeding. Mr Cairns’ report enables it to test the evidence in Exhibit ‘ER-4’. Moreover, DST has co-operated with requests to provide information to Mr Cairns. If it becomes necessary, AMP could obtain a supplementary report from Mr Cairns. This weighs against disclosure to AMP’s nominated employees.
[48]Filed on 8 July 2021.
[49]Mr Cairns does not opine on everything, see for instance [40] re Sheet 6. Examples of limitations, and the reasons for them are contained at paragraphs [24], [34(d)], [38], [76]-[79], [133] of his report.
As a matter of completeness, I will refer to the redacted version that DST has provided of ‘ER-4’.[50] As AMP says, swathes of the document are redacted. It is almost meaningless.
[50]Exhibit ‘KM-4’ to the Mataraaratchi 3 affidavit.
Access to Exhibit ‘ER-3’ is no longer in dispute.
Other matters – administration of justice; Civil Procedure Act
The administration of justice requires AMP be able to properly answer the claims made against it. It has an interest in accessing the documents contained in the exhibits in dispute here. On the other hand, there is information, identified above, that if disclosed to AMP’s nominated employees may prejudice or otherwise cause detriment to DST. Accordingly, DST has an interest in minimising access. There is a balancing exercise required.
I accept the existing confidentiality regime and the Harman Undertaking provide a degree of protection for DST. However, in the circumstances here, I do not consider that justice requires the nominated employees be given access to all the documents sought. Those circumstances include AMP’s lawyers, ME, and its in-house counsel already having access to the documents.
Weighing up the factors identified above, I am satisfied that the following strikes the balance necessary for the attainment of justice. It is consistent too with the overarching purpose of the Civil Procedure Act, namely to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
(a) Exhibit ‘AA-2’ – the ex-employee spreadsheet be disclosed to AMP’s nominated employee, but nothing further.
(b) Exhibit ‘ER-4’ - pages 1, 4-6, 11-13 be disclosed to AMP’s nominated employees, but nothing further.
Conclusion
DST’s disclosure application is partially allowed and partially disallowed:
(a) Document 5000.0001.0182 – inspection allowed;
(b) Document 5000.0001.0192 – inspection allowed;
(c) Document 5000.0001.0322 – inspection allowed save for part of page 2 (identified above);
(d) Document 5000.0001.0761 - inspection allowed save for parts of pages 2 and 4 (identified above);
(e) Document 5000.0001.0629 – inspection allowed;
(f) Document 5000.0001.0434 – inspection allowed save for page 4; and
(g) Document 5000.0001.0417 – inspection allowed.
AMP’s employee access application is partially allowed and partially disallowed per paragraph [156] above.
I will give the parties an opportunity to confer on orders consequential to this ruling.
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