Energy Resources Limited v Cactus Wellhead Australia Pty Ltd [No 2] - [2025] WASC 22

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ENERGY RESOURCES LIMITED -v- CACTUS WELLHEAD AUSTRALIA PTY LTD [No 2] [2025] WASC 22
CORAM:   LUNDBERG J
HEARD:   29 JANUARY 2025
DELIVERED          :   3 FEBRUARY 2025
FILE NO/S:   CIV 1620 of 2023
BETWEEN:   ENERGY RESOURCES LIMITED
Plaintiff
AND
CACTUS WELLHEAD AUSTRALIA PTY LTD
Defendant

Catchwords:

Practice and procedure - Evidentiary rulings - Application by defendant seeking inspection of plaintiff's documents - Claims for privilege by the plaintiff - Evidentiary objections raised by the defendant to various paragraphs of the supporting affidavits - Non-compliance with O 37 r 6(3A) of the Rules of the Supreme Court 1971 (WA) - Opinion and conclusionary statements - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 37 r 6(3A)

Result:

Various paragraphs of the affidavits of Justin Kennedy sworn 5 December 2024 and Thomas Coltrona sworn 17 January 2025 be struck out as inadmissible.

Category: B

Representation:

Counsel:

Plaintiff	:	A J Tharby
Defendant	:	T J Porter

Solicitors:

Plaintiff	:	Bennett
Defendant	:	HWL Ebsworth Lawyers (Perth)

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

Antz Inya Pantz Coffee Company Pty Ltd v Muhl [2023] WASC 320
Blythe v Western Australia [2008] WASCA 10
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543
Glencore International AG v Federal Commissioner of Taxation [2019] HCA 26; (2019) 265 CLR 646
Lewandowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989)
Ponggos v Caeserstone Ltd [2023] WASC 427
Westpoint Management Pty Ltd v Goakes [2002] WASCA 317

Table of Contents

A. Introduction

B. Brief background

C. Consideration

D. Disposition

E. Conclusion and orders

ATTACHMENT A TABLE OF RULINGS ON OBJECTIONS TO EVIDENCE

LUNDBERG J:

A. Introduction

These reasons relate to the objections raised by the defendant as to the admissibility of portions of the supporting affidavits relied upon by the plaintiff in resisting the defendant's application for inspection. The defendant's application was brought by way of chamber summons dated 30 October 2024. That application in effect challenges the plaintiff's claims for legal professional privilege over some 498 documents which it has discovered in this action. The application is brought pursuant to O 26 r 9 and O 26 r 12 of the Rules of the Supreme Court 1971 (WA) (RSC), in circumstances in which the defendant submits that plaintiff has not made out a proper claim for privilege,[1] alternatively there has been a waiver.[2]
[1] Defendant's submissions dated 24 December 2024 (DS) [15].
[2] DS [40].
The action is being case managed by Howard J, who will be the trial judge. Given the nature of the application, it was listed for hearing before a judicial officer other than the trial judge. The application was listed for hearing on 29 January 2025 with detailed submissions[3] and supporting affidavits having been filed ahead of the hearing. As matters stand, neither party has invited the Court to inspect the documents which are the subject of the challenged privilege claims.
[3] See DS dated 24 December 2024, plaintiff's submissions dated 17 January 2025 (PS), and the defendant's reply submissions dated 24 January 2025 (PS Reply).
On the morning of the hearing, the defendant filed and served a schedule of objections to the two principal affidavits filed by the plaintiff, being the affidavit of Justin Oriol Kennedy sworn on 5 December 2024 (Kennedy Affidavit) and the affidavit of Thomas Anthony Coltrona sworn on 17 January 2025 (Coltrona Affidavit).[4] I refer to the defendant's schedule of objections to evidence dated 29 January 2025. As will become evident, many of the objections were based on an asserted non-compliance with the requirements of O 37 r 6(3A) RSC.
[4] The Coltrona Affidavit was filed without leave but ultimately the defendant did not oppose the plaintiff relying on the affidavit, subject to the evidentiary objections.
It is appropriate to observe at this point that Mr Kennedy is a member of the in-house legal team on the plaintiff's side. He is the Manager of Legal Matters for the Iron Ore and Energy portfolios of the holding company of the plaintiff. He commenced with that group in March 2023, so around 18 months after the incident which is the subject of these proceedings (which occurred in September 2021).
Further, I note that Mr Coltrona is a solicitor in the employ of the external law firm representing the plaintiff in this action. It does not appear from his affidavit that Mr Coltrona had any role in the investigation at the time of the incident. Mr Coltrona's experience and seniority are not identified in his affidavit.
The defendant had, at an earlier point in time, foreshadowed its objections to the Kennedy Affidavit. I should say it foreshadowed most of the objections - the objections pressed at the hearing were different in some respects to those previously foreshadowed.
The earlier objections can be found on the final page of the defendant's outline of submissions, after the list of authorities is set out, which was filed on 24 December 2024. It is evident the plaintiff's legal team overlooked the objections until the morning of the hearing. This is explicable as the objections were not provided in the form of a specific schedule. I unreservedly accepted counsel for the plaintiff's explanation in this regard as I must confess to having overlooked the objections myself, as I indicated at the hearing.[5]
[5] ts 241.
At all events, the filing of the schedule of objections on 29 January 2025 brought the matter into sharp focus for the plaintiff, and for the Court. Having reviewed the objections and heard from the parties briefly, I considered it appropriate, given the nature of the objections and their potential impact on the plaintiff's application, that they be heard and determined prior to the substantive argument on the application. That was an approach supported by the plaintiff.
At the conclusion of argument on the objections, I ruled that various paragraphs of the Kennedy Affidavit and the Coltrona Affidavit should be struck out as inadmissible. The paragraphs in question are identified in the table in Attachment A to these reasons. I indicated I would give formal reasons for those rulings to assist the parties. These are my reasons.

B. Brief background

In order to put the objections into proper context, some brief background to the action and the present application is required.
Within the present action, the plaintiff alleges that the defendant provided a defective part that caused the installation of part of the plaintiff's wellhead system to fail.[6] That occurred on 23 September 2021. It is said by the plaintiff that, upon this incident occurring, work was undertaken to assess the damage, to diagnose the cause of the problem and to fix the issue.[7] It is also said by the plaintiff that it has now discovered and given inspection of documents in this regard.
[6] PS [4].
[7] PS [5].
Separately, the plaintiff asserts that its in-house legal team commenced an investigation to assess the rights and obligations it might have in respect of the incident.[8] The plaintiff has discovered the documents relating to this investigation but has objected to inspection of them. These are the documents which give rise to the present interlocutory application.
[8] PS [6].
I understand the plaintiff has, within the affidavit of Mr Darren Ashley Hardy sworn 22 May 2024, claimed privilege in respect of some 519 documents.[9] Additionally, the plaintiff has discovered and given inspection of some 4,722 documents.[10] The present application seeks inspection of 498 of the documents in respect of which privilege is claimed. It appears the defendant seeks inspection of any document that is not an email with the external solicitors for the plaintiff.[11]
[9] PS [7].
[10] PS [15].
[11] PS [7].
It is apparent there has been a degree of written communication between the parties about the claims for privilege, commencing on or about 12 June 2024.[12] The defendant has raised concerns about the adequacy of the description of the documents and it appears further information has been provided in this regard.[13] Ultimately, however, the defendant was not satisfied with the information provided and this application was brought.
[12] PS [8].
[13] PS [9].
As noted above, the affidavit material filed by the plaintiff makes reference to an investigation into the incident which is the subject of the action, which was said to be initiated by a lawyer within the in-house legal team on the plaintiff's side.[14]
[14] PS [11].
The Kennedy Affidavit seeks to explain this investigation in some detail and provide evidence as to the purpose of the investigation, among other matters.
Within the Coltrona Affidavit, the deponent has attached a spreadsheet which compiles the information previously provided to the defendant. The affidavit includes the subject line for the various emails which are the subject of the application, and provides the title of some of the individual documents.[15] Mr Coltrona explains in his affidavit that he had reviewed the 498 documents in respect of which privilege has been claimed, and he purports to categorise them.
[15] PS [12].
On the present application, the plaintiff submits that its evidence 'conclusively establishes that the purpose behind the privileged documents was to obtain legal advice or for legal proceedings'.[16] The plaintiff submits the privilege claims are properly made.[17] The plaintiff criticises as mere supposition the defendant's submission that the investigation in question must have been carried out, and the communications must have been sent, for other or multiple purposes.[18]
[16] PS [15].
[17] PS [20].
[18] PS [16].
In these circumstances, it ought to have been no surprise to the plaintiff that the defendant would seek to closely review the cogency of the plaintiff's affidavit evidence and the statements as to the plaintiff's apparent purpose or purposes at the time the investigation was said to have been initiated.
The evidence as to the 'primary purpose' of the investigation at [15] of the Kennedy Affidavit is thus of critical importance to the application, as is the manner in which Mr Coltrona relies upon portions of the Kennedy Affidavit and his statement as to relevant 'purposes' at [19] of the Coltrona Affidavit.
The present application seeks orders for inspection of almost 500 documents in respect of which privilege has been claimed, and in respect of which it may be inferred (from the fact the documents have been discovered and from their descriptions) contain information of potential relevance to the issues in dispute in the action. That said, the privilege which is claimed, being a privilege which in general terms attaches to communications between a client and their legal advisor, arises out of a substantive general principle of the common law.[19] As such, that privilege will, in general terms, trump the apparent relevance of the documents.
[19] Glencore International AG v Federal Commissioner of Taxation [2019] HCA 26; (2019) 265 CLR 646; and Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 [9] - [11] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

C. Consideration

Counsel for the defendant placed considerable reliance on the regime within O 37 r 6 RSC concerning the admissibility requirements for affidavits. There were additional bases for the objections, but it is convenient to commence with a consideration of this rule and its operation.
The starting position is that an affidavit must be confined to such facts as the deponent is able of his or her own knowledge to prove, as stated in O 37 r 6(1) RSC.
There is an exception to this requirement, found in O 37 r 6(2)(c) RSC, which permits an affidavit to contain statements of information or belief if the affidavit is made for the purposes of interlocutory proceedings. There was no dispute that the present application was interlocutory in nature.
The analysis then turns to O 37 r 6(3A) RSC which provides that, subject to certain exceptions, an affidavit containing statements of information or belief must set out the sources or grounds of that information or belief.
The terms of O 37 r 6 RSC are set out below:
6.Contents of affidavits
(1)An affidavit must be confined to such facts as the deponent is able of his or her own knowledge to prove.
(2)Despite subrule (1), an affidavit may contain statements of information or belief if —
(a)the affidavit is made under, and for the purposes of proceedings under, a written law that permits it to contain such statements; or
(b)the affidavit is made under a provision of these rules that permits it to contain such statements; or
(c)the affidavit is made for the purposes of interlocutory proceedings; or
(d)the Court has made an order permitting the affidavit to contain such statements.
(3A)An affidavit containing statements of information or belief must set out the sources or grounds of that information or belief unless —
(a) the affidavit is made under, and for the purposes of proceedings under, a written law that —
(i)prevents the deponent from disclosing those sources or grounds or information material to them; or
(ii)does not permit those sources or grounds or information material to them to be made public;
or
(b)the Court has made an order permitting the affidavit to omit the sources or grounds.
(3)The costs of an affidavit which unnecessarily sets forth matters of hearsay, argumentative matter or copies of or extracts from documents, shall be paid by the party filing the affidavit.
The scope and operation of these provisions was examined in some detail by Howard J in Antz Inya Pantz Coffee Company Pty Ltd v Muhl.[20] In that decision, his Honour traversed three decisions of both the Court of Appeal and the Full Court in relation to this provision, namely Blythe v Western Australia,[21] Lewandowski v Bergalin Pty Ltd[22] and Westpoint Management Pty Ltd v Goakes.[23] It is sufficient for present purposes to refer to the following statement in his Honour's reasons in Muhl, which I respectfully adopt for the purposes of the present application:[24]
In this jurisdiction it is not common for there to be cross-examination on affidavits filed in interlocutory proceedings. The requirement that the deponent sets out the sources or grounds of their statements of information or belief is important for the opposing party in its assessment of what, if any, evidence it might seek to adduce in reply or opposition. Further, it allows the Court some ability to make an assessment of the cogency and reliability of the statements made by a deponent. Without compliance with O 37 r 6 there is a real danger that an affidavit turns into an ipse dixit exercise on the part of the deponent.
[20] Antz Inya Pantz Coffee Company Pty Ltd v Muhl [2023] WASC 320 (Howard J) (Muhl). See further Ponggos v Caeserstone Ltd [2023] WASC 427 [27] (Howard J).
[21] Blythe v Western Australia [2008] WASCA 10 (Blythe).
[22] Lewandowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989).
[23] Westpoint Management Pty Ltd v Goakes [2002] WASCA 317.
[24] Muhl [15] (Howard J).
His Honour also reiterated, by reference to the observations of the Court of Appeal in Blythe, the importance of the requirement to identify the particular source which is relied upon, so that the original origin of the hearsay information is revealed and the opponent has at least some opportunity to counter or challenge the statement. Their Honours Pullin and Buss JJA (as Buss P then was) stated the preference for statements of information and belief in affidavits to adopt the usual form, 'I have been informed by X and verily believe', which is commonly used in this jurisdiction:[25]
…because it clearly indicates the source of the information, states the information and states that the deponent believes that what X has said is true. If that form, or something similar, is not followed, there may be a tendency for the drafters of affidavits to drift into bad habits which will produce affidavits inadmissible under O 37 r 6.
[25] Blythe [43] (Pullin and Buss JJA).
Counsel for the defendant drew support for his objections from the analysis of Howard J in Muhl as outlined above. As can be seen from the table in Attachment A, a large number of the objections were based on an asserted non-compliance with O 37 r 6(3A) RSC.

D. Disposition

Counsel for the defendant referred to a number of particular vices said to be present in the two affidavits under challenge, having regard to the rule referred to above. I accepted the force of those criticisms in making the rulings I did at the hearing. The criticisms may be summarised in broad terms as follows.
Mr Kennedy was not one of the in-house lawyers at the relevant time, having joined the business some two years later, and so his evidence as to the purpose of the investigation, which investigation is said to have commenced in September 2021, is necessarily hearsay.[26] The persons who were involved in the establishment of the investigation in 2021 have not sworn affidavits in resisting the challenge to privilege, although, by way of explanation, it is noted that one of the persons appears to have left the business in question.[27]
[26] ts 193.
[27] Coltrona Affidavit, Attachment TAC-2, pg 24.
Unsurprisingly then, Mr Kennedy has deposed to several matters of particular importance to the present application, concerning the asserted purpose of the investigation undertaken by the plaintiff, only on the basis of information he has read or information which has been reported to him. This is apparent from, at least, [5], [6], [8], [13], [14], [24] and [25] of the Kennedy Affidavit. The statement by Mr Kennedy as to the 'primary purpose' of the investigation is found at [15] of the Kennedy Affidavit. There are statements as to purpose at [26] and [27] as well.
The paragraphs of the Kennedy Affidavit in which Mr Kennedy deposes to the sources of his knowledge and belief are expressed in very general terms and often state numerous sources without identifying which particular source has been relied upon for which belief. Counsel for the defendant described the paragraphs in question as a 'mishmash of vaguely adverted to sources of different kinds'.[28] In its written submissions, the defendant described the Kennedy Affidavit as rising 'no higher than being a generalised statement about vaguely identified categories of documents, which generalisations are based on 'assistance' he has been given by others'.[29]
[28] ts 193.
[29] DS [26].
For example, at [5], there is a reference to a non-specific discussion or discussions with other solicitors within the in-house legal team. At [6], Mr Kennedy refers to 'various documents relating to the proceedings' which he has read. At [8], it is said that the Project Manager provided Mr Kennedy with an 'account' of the incident, the Project Manager's involvement in the investigation and the preparation by him of documents for the investigation. At [13], it is apparent that Mr Kennedy has formed a belief based on his 'involvement in the plaintiff's business generally'. At [14], Mr Kennedy deposes that he is aware from various sources that his predecessor, a lawyer in the in-house legal team, gave instructions to employees in relation to commencing an investigation 'in order to enable [that solicitor] to provide the plaintiff and MinRes with legal advice regarding the Incident'. That last passage is then defined as the 'Investigation', which leads to the next point to be made regarding admissibility.

Mr Kennedy uses the defined terms 'Incident' and 'Investigation' to refer to rolled-up concepts which are then deployed throughout the affidavit.[30] These definitions need to be closely analysed according to the defendant's counsel, in light of this, because a 'lot hangs on' these definitions.[31] In my view, it is correct to say that the defined terms do a considerable amount of heavy lifting in the context of the affidavit as a whole. This is problematic because the definitions embody multiple concepts.
[30] ts 195
[31] ts 195 and 196.
Mr Kennedy has failed to state the sources of his belief in several paragraphs, such as [18], and has failed to specifically depose that he believes the information in other paragraphs to be true, such as [14] and [15]. This is the point emphasised in Blyth as being of some importance when seeking to invoke the operation of O 37 r 6(3A) RSC. On an application such as this, where statements as to purpose are distinctly important, the defects in the individual paragraphs in this regard are not saved by a generic reference in an opening paragraph of the affidavit to the effect that statements in the affidavit which are hearsay are 'true and correct to the best of my knowledge, information and belief'.[32]
[32] Such as at [3] and [11] of the Coltrona Affidavit and [4] of the Kennedy Affidavit.
As to the 'usual procedure' for investigations, which is referred to at [10] to [12] of the Kennedy Affidavit, those matters are fundamentally irrelevant unless it is demonstrated the procedure was in place at the time of the incident. This is where [13] of the Kennedy Affidavit is important, and falls down, because it is based on a variety of sources without precision. Further, in my view, in the absence of the statement at [13], I would not be prepared on the material available to draw the inference that the matters at [10] to [12] of the Kennedy Affidavit represented the procedure at the relevant time.[33] That is a central fact to be established on the evidence.
[33] ts 231.
As to the Coltrona Affidavit, similar objections were raised. Counsel for the defendant criticised the manner in which the Coltrona Affidavit relied upon matters in the Kennedy Affidavit, in a definitional sense,[34] and the manner in which the affidavit represented commentary or submissions as to the effect or characterisation of the disputed documents, based upon Mr Coltrona's review of the documents.[35] I accepted these criticisms as valid.
[34] ts 198, 201 and 203.
[35] ts 202 - 203
A counterpoint to the defendant's objections, and one with some weight, is that in the context of an application challenging privilege claims, there is a need for the affidavits in support of the claims for privilege to be circumspect as to the subject matter of the documents. It would undermine the privilege if the deponents were required to refer to, much less be required to explain, the contents of the putatively privileged material. A further point to be made, in seeking to support the admissibility of the impugned paragraphs, is that that entirety of the contents of the supporting affidavits must be considered, particularly where the paragraphs are interconnected.
However, I did not ultimately see these points as a complete answer to the problem at hand. It remains necessary for a deponent to remain faithful to the requirements of O 37 r 6(3A) by carefully identifying the sources which are relied upon for particular statements on information and belief, which the deponent says he believes to be true, so that the opponent (and the Court) may assess the reliability and cogency of the material. This can be done without revealing the substance of the privileged material, because the critical aspect of the claim which falls under challenge is the 'purpose' for the creation of the document. The privileged contents of the documents need not be exposed.
In the present case, the paragraphs under challenge fall foul of the requirements in O 37 r 6(3A), as explained in Blyth, and leave the affidavit material as little more than dogmatic statements without proper supporting evidence. Allied to this, some of the paragraphs become irrelevant once the substantively challenged paragraphs are struck out, such as [6], [8] and [13] of the Kennedy Affidavit, and [7] and [8] of the Coltrona Affidavit.
Further, several paragraphs may be characterised as mere conclusions or impermissible statements of opinion from the deponents, which are inadmissible. For example, [26] and [27] of the Kennedy Affidavit and [18] and [19] of the Coltrona Affidavit.
I should observe that even had I not struck out portions of the affidavits, I would have had real reservations about the cogency of the matters which are therein deposed.

E. Conclusion and orders

For the foregoing reasons, I ruled that certain of the paragraphs identified in Attachment A to these reasons ought to be struck out as inadmissible. The paragraphs to be struck out were:
(a)in the Kennedy Affidavit - [6], [8], [13], [14], [15], [17], [18], [26] and [27]; and
(b)in the Coltrona Affidavit - [7], [8], [17], [18], [19].
In summary:
(a)I formed the view that several paragraphs of the Kennedy Affidavit had failed to identify the sources of information with the necessary specificity required for compliance with O 37 r 6(3A) RSC, being [6], [8], [13], [14], [15], [17], and [18].
(b)Several of the paragraphs failed to include an express statement of belief as to the truth of the matters identified, being [13], [14], [15], [17] and [18], as required by Blyth.
(c)As to [26] and [27] of the Kennedy Affidavit, those paragraphs impermissibly contain broad conclusions or opinions of the deponent, based on his categorisation of the documents as set out in [24] and [25]. It is one thing for the deponent to categorise the documents in a descriptive way to assist the Court, but it is quite a step too far in my view for the deponent to then ascribe a 'purpose' label to each category of documents. For example, at [26], Mr Kennedy deposes that the emails in 9 of the categories 'were sent for the purpose of facilitating the provision of legal advice to the plaintiff and to assist the plaintiff in preparing for anticipated litigation'.
(d)I formed the view that [7] and [8] of the Coltrona Affidavit should be struck out consequentially upon the rulings in respect of the Kennedy Affidavit.
(e)As to [17], [18] and [19] of the Coltrona Affidavit, I formed the view those paragraphs had failed to identify the sources of information with the necessary specificity required for compliance with O 37 r 6(3A) RSC, and failed to include an express statement of belief as to the truth of the matters identified.
(f)As with the Kennedy Affidavit, I formed the view that [17], [18] and [19] of the Coltrona Affidavit impermissibly contained broad conclusions or opinions of the deponent, based on his assessment of the documents. Both [18] and [19] contain conclusions as to the 'purposes' of the investigation and the preparation of the documents.
The balance of the paragraphs under challenge did not infringe O 37 r 6(3A) RSC and were not otherwise inadmissible.
Following the above rulings, I heard an application from the plaintiff for an adjournment to permit additional affidavit evidence to be filed. That adjournment was strongly opposed. For the oral reasons I gave at the hearing,[36] I acceded to the adjournment and made orders permitting the plaintiff to file further affidavits within 14 days, with the question whether the plaintiff may rely on those affidavits to be held over until the resumed hearing (which has been set down for 25 February 2025, given the looming trial in July 2025).
[36] ts 240 - 243.
The question of leave was held over in light of the submission on the part of the defendant that the plaintiff should not be permitted to advance evidence from additional deponents at the resumed hearing, and ought not be in a better position on the resumed hearing, to the potential prejudice of the defendant, as a result of the defendant having formally raised objections to the evidence, rather than simply attack the cogency and weight of the material. There is some force to that submission.

ATTACHMENT A
TABLE OF RULINGS ON OBJECTIONS TO EVIDENCE

Para	Extract from the Affidavit	Objection	Ruling
Affidavit of Justin Kennedy
5	Upon my employment by MinRes, I was informed of these proceedings and was provided a brief overview of the background to them by Mr Nick Rohr, my direct supervisor and the person who my predecessor, Mr Lance Perry, reported to.	Non-compliance with O 37 r 6(3A) RSC.	Overruled.
6	Subsequently, I read through various documents relating to the proceedings and discussed the proceedings with the plaintiffs solicitors.	Non-compliance with O 37 r 6(3A) RSC.	Inadmissible as being non-compliant with O 37 r 6(3A) RSC (failure to identify sources with sufficient specificity). Paragraph struck out.
7	As a result, I became aware of the incident that occurred during the cementing operation at the Lockyer Deep-I well across 22 and 23 September 2021 (Incident), the involvement and steps taken by Mr Perry and other members of the MinRes inhouse legal team to investigate and provide legal advice to MinRes and the plaintiff in relation to the Incident, and the subsequent dispute between the plaintiff and defendant that arose from the Incident.	Non-compliance with O 37 r 6(3A) RSC.	Overruled.
8	Mr Darrell Girgenti, Project Manager of the Lockyer Deep-I project, has also provided me with an account of the Incident, his involvement in investigating the Incident and his preparation of documents in relation to the Incident for Mr Perry and other members of the MinRes in-house legal team.	Non-compliance with O 37 r 6(3A) RSC.	Inadmissible as being non-compliant with O 37 r 6(3A) RSC (failure to identify sources with sufficient specificity). Paragraph struck out.
13	Based on the documents I've reviewed, my conversations with Mr Girgenti and my involvement in the plaintiffs business generally, I understand that the above practice was in place at the time of the Incident. (NB: pars 10 to 12 depose to the usual procedure of the plaintiff's in-house legal team when an event such as the incident occurs on a project.)	Non-compliance with O 37 r 6(3A) RSC; inadmissible opinion.	Inadmissible as being non-compliant with O 37 r 6(3A) RSC (failure to identify sources with sufficient specificity and no statement of belief as to truth). Paragraph struck out.
14	I am aware from my review of MinRes' documents my discussions with Mr Rohr and Mr Girgenti, from the morning of 23 September 2021, after the incident, Mr Perry gave instructions to employees of the plaintiff, Mr Girgenti and other managers of Aztech in relation to commencing an investigation into the Incident in order to enable him to provide the plaintiff and MinRes with legal advice regarding the Incident (Investigation).	Non-compliance with O 37 r 6(3A) RSC; competence.	Inadmissible as being non-compliant with O 37 r 6(3A) RSC (failure to identify sources with sufficient specificity and no statement of belief as to truth). Paragraph struck out.
15	The primary purpose of the Investigation was to gather information for the plaintiffs in-house legal team (and later the plaintiff's external solicitors), to facilitate the provision of legal advice to the plaintiff and to assist the plaintiff in preparing for anticipated litigation against the defendant.	Non-compliance with O 37 r 6(3A) RSC; competence.	Inadmissible as being non-compliant with O 37 r 6(3A) RSC (failure to identify sources with sufficient specificity and no statement of belief as to truth). Paragraph struck out.
16	The Investigation continued into October 2021 and incorporated the results of third-party reports investigating the potential causes of the Incident, prepared at the request of the plaintiff. Two of these reports, produced by Swan Fabricators and Baker Hughes, have been discovered and provided for inspection by the plaintiff.	Non-compliance with O 37 r 6(3A) RSC; competence.	Overruled.
17	In the period between the Incident and the final rectification of the damage caused by the Incident, the plaintiff's in-house legal team requested and was provided with regular communications from the plaintiff's employees and contractors regarding the works being performed to rectify the Incident. The plaintiffs in-house legal team required this as part of the Investigation in order to make an assessment of the plaintiffs potential claims.	Non-compliance with O 37 r 6(3A) RSC; competence.	Inadmissible as being non-compliant with O 37 r 6(3A) RSC (failure to identify sources with sufficient specificity and no statement of belief as to truth). Paragraph struck out.
18	In late October and early November 2021, witness statements were obtained from various personnel, including Mr Jeff Rooney of the defendant, for the purposes of the Investigation and to consider whether the plaintiff had potential legal claims for the damage caused by the Incident (Witness Statements).	Non-compliance with O 37 r 6(3A) RSC; competence.	Inadmissible as being non-compliant with O 37 r 6(3A) RSC (failure to identify sources with sufficient specificity and no statement of belief as to truth). Paragraph struck out.
19	On 3 November 2021, Mr Perry contacted Bennett to obtain legal and litigation advice regarding potential cost recovery by the plaintiff in relation to the Incident.	Non-compliance with O 37 r 6(3A) RSC; competence.	Overruled.
20	On 5 November 2021, the plaintiff formally engaged Bennett to provide advice and representation to the plaintiff in relation to the Incident and the subject matter of these proceedings.	Non-compliance with O 37 r 6(3A) RSC; competence.	Overruled.
24	I have reviewed the list of documents the subject of the Application, being 498 documents, and confirm that: 24.1 35 of these documents are duplicates of documents excluded by the Application etc..	Non-compliance with O 37 r 6(3A) RSC; vague; relevance.	Overruled.
25	Of the 348 documents remaining, these documents generally fall into the following categories: 25.1 Documents dated prior to 3 November 2021, namely: (etc…)	Competence.	Overruled.
26	The emails referred to at paragraphs [25.1.2] – [25.1.6] and [25.2.1]-[25.2.3] above were sent for the purpose of facilitating the provision of legal advice to the plaintiff and to assist the plaintiff in preparing for anticipated litigation.	Competence.	Inadmissible as conclusion or opinion. Paragraph struck out.
27	The Witness Statements and documents referred to at paragraphs [25.2.4]-[25.2.6] above were prepared for the purpose of facilitating the provision of legal advice to the plaintiff and to assist the plaintiff in preparing for anticipated litigation.	Competence.	Inadmissible as conclusion or opinion. Paragraph struck out.
Affidavit of Thomas Coltrona
6.4	I have reviewed each document referred to in the Schedule and, for each document, the Schedule provides: … 6.4 a category that discloses further information supporting the basis for the plaintiff's claim for privilege. Each category was prepared by me based on my assessment of each document and I verily believe the categorisations to be true.	Relevance; inadmissible opinion/belief; competence.	Overruled.
7	The word 'investigation' as it appears in the Schedule (and this affidavit) should be taken to have the same definition and purpose as set out in paragraphs 14 to 15 of the affidavit of Justin Oriol Kennedy sworn 5 December 2024 (Kennedy Affidavit).	Relevance; inadmissible opinion; competence.	Inadmissible in light of rulings on Kennedy Affidavit. Paragraph struck out.
8	The phrases 'witness statement' or 'witness statements' as they appear in the Schedule (and this affidavit) should be taken to have the same definition and purpose as set out in paragraph 18 of the Kennedy Affidavit.	Relevance; inadmissible opinion; competence.	Inadmissible in light of rulings on Kennedy Affidavit. Paragraph struck out.
11	I have reviewed the 498 documents the subject of the Application and, based on my review, I verily believe the matters in paragraphs 12 to 18 to be true.	Relevance; inadmissible opinion.	Overruled.
12	To gather information to support the Investigation, emails were sent out by or at the instruction of the plaintiffs in-house legal team to relevant persons, including Mr Jeffrey Rooney of the defendant, providing a document template to fill in, in order to obtain Witness Statements for consideration by the in-house legal team.	Competence; inadmissible opinion; non-compliance with O 37 r 6(3A) RSC.	Overruled.
17	As information, findings and witness statements were collected, key staff and contractors of the plaintiff were provided with updates on the status of the Investigation and information that would form part of a report of the Investigation. Privileged document [8436] is an example of this.	Competence; inadmissible opinion; non-compliance with O 37 r 6(3A) RSC.	Inadmissible as being non-compliant with O 37 r 6(3A) RSC (failure to identify sources with sufficient specificity). Paragraph struck out.
18	8 of the 12 documents referred to paragraph 26 of the Devahasdin Affidavit are correspondence in relation to the matters at paragraph 17 above, as set out in the Schedule. The other 4 documents are correspondence regarding the collection of information by employees of the plaintiff for the purposes of the Investigation, as set out in the Schedule.	Competence; inadmissible opinion; non-compliance with O 37 r 6(3A) RSC.	Inadmissible as being non-compliant with O 37 r 6(3A) RSC (failure to identify sources with sufficient specificity and no statement of belief as to truth); conclusion or opinion. Paragraph struck out.
19	Based on my review of the following documents, set out in the Schedule as draft incident reports, and based on my review of privileged documents [2292] and [2280] (being communications with the plaintiff's solicitors), I verily believe that the following documents were prepared by employees and contractors of the plaintiff at the instruction of the plaintiff's solicitors for the purposes of the plaintiff obtaining legal advice or in respect of legal proceedings: 19.1 etc…	Competence; inadmissible opinion; non-compliance with O 37 r 6(3A) RSC.	Inadmissible as being non-compliant with O 37 r 6(3A) RSC (failure to identify sources with sufficient specificity); conclusion or opinion. Paragraph struck out.

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