Environment Protection Authority Victoria v 82 M Pty Ltd (No 3)
[2022] VSC 504
•31 August 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2020 03840
| ENVIRONMENT PROTECTION AUTHORITY VICTORIA | Plaintiff |
| v | |
| 82 M Pty Ltd (ACN 130 867 300) | First Defendant |
| GLASS RECOVERY SERVICES PTY LTD (ACN 130 869 920) (Receivers and Managers Appointed) (In Liquidation) | Second Defendant |
---
JUDGE: | LYONS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 August 2022 Further submissions dated 18 and 25 August 2022 | |
DATE OF RULING: | 31 August 2022 | |
CASE MAY BE CITED AS: | Environment Protection Authority Victoria v 82 M Pty Ltd (No 3) | |
MEDIUM NEUTRAL CITATION: | [2022] VSC 504 | First Revision: 2 September 2022 |
---
PRACTICE AND PROCEDURE – Discovery – Privileged documents mistakenly disclosed – Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 – Discussion of the ‘considerations (analogous to equitable considerations)’ where court might decline to order the return of privileged documents inadvertently disclosed – Return of privileged documents ordered.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Miller | FCW Lawyers |
| For the Defendants | Mr J Twigg QC with Mr R Harris | Harris Carlson Lawyers |
HIS HONOUR:
INTRODUCTION AND SUMMARY
The plaintiff is the Environment Protection Authority Victoria (the Authority). In this proceeding, the Authority seeks orders against the defendants relating to its entitlement to recovery of clean-up costs of approximately $30 million (the clean-up costs) associated with a glass processing plant operated by the second defendant (the plant and GRS). The plant was on land at 82 to 84 Maffra Street, Coolaroo (the land), owned by the first defendant (82 M). It is not disputed that 82 M and GRS (collectively the defendants) are related companies.
In this application the Authority seeks a number of orders.
First, the Authority seeks the return and/or destruction of two documents which it claims are privileged and which were mistakenly provided to the defendants (the privilege application). Those documents are:
(1) a memorandum of advice from Marc Fisken to the Chief Executive Officer of the Authority (Dr Cathy Wilkinson, the CEO) dated 25 October 2019 (the memorandum); and
(2) a briefing paper from Danny Childs to the CEO dated 25 October 2019 attaching the memorandum (the briefing paper).[1]
For convenience I will refer to the memorandum and the briefing paper collectively as the relevant documents.
[1]The summons filed 4 March 2022 only sought the return of the memorandum, not the briefing paper. At the hearing on 9 August 2022, the Authority sought leave to amend the summons to include the return of the briefing paper. This was not opposed by the defendants in light of the material and submissions filed. Thus I granted leave to amend the summons.
Second and relatedly, the Authority seeks that the defendants delete the references to the relevant documents in the amended defence and counterclaim dated 6 August 2021 (the ADC). The relevant documents are relied upon in support of a claim for misfeasance in public office against the Authority. The Authority also seeks that the defendants file a further version of the ADC with the references to the relevant documents deleted.
Third, the Authority seeks that certain paragraphs of the ADC be struck out because the defendants have not established a prima face case for misfeasance in public office alleged in those paragraphs (the strike out application).
In response to the privilege application, the defendants submitted that:
(1) the Authority had failed to provide sufficient evidence to establish client legal privilege or that the relevant documents were mistakenly provided;
(2) even if the matters in (1) were established, the court should not now order their return; and
(3) the Authority has waived privilege in the relevant documents pursuant to s 122 of the Evidence Act 2008 (Vic).
In response to the strike out application, the defendants accepted the Authority’s criticism of the ADC. As a result, the defendants sought orders, although they have not filed a summons, seeking:
(1) leave to join the CEO as a second defendant to the counterclaim, on the basis that she was the official in public office who allegedly committed the tort of misfeasance in public office; and
(2) leave to file and serve a proposed further amended defence and counterclaim by 20 May 2022 (the PFADC).
For convenience, I will call the claim of misfeasance in public office in the ADC and the PFADC the misfeasance claim.
Further, the defendants seek further discovery of certain documents from the Authority (the discovery application).
The applications were listed for hearing on 7 June 2022. The hearing was adjourned to allow the Authority to respond to a further affidavit of the solicitor for the defendants served on 6 June 2022.
The matter was re-listed for 9 August 2022. At the commencement of the hearing on that day, the parties advised that they had reached agreement on orders relating to the discovery application. Further, as to the strike out application, counsel for the Authority indicated that the Authority did not oppose the filing of the PFADC (and the form of the misfeasance claim in it), provided the reference to the relevant documents was deleted. However, counsel informed the court that he was seeking instructions as to whether the Authority would accept any liability for a misfeasance claim against the CEO which might avoid the need for her to be served. I expressed the view that, in light of the issues raised in the privilege application and its effect on the form of the PFADC, it was appropriate to address that issue after the determination of the privilege application.
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (Expense Reduction) makes plain that, in the case where there has been inadvertent disclosure of privileged material by the solicitor for a party, the issue of waiver or imputed waiver does not arise.[2] As a result, the argument proceeded on the basis that, if there was inadvertence in respect of the provision of the relevant documents by the solicitors for the Authority in the course of discovery, the application was to be determined in accordance with the principles in Expense Reduction.
[2](2013) 250 CLR 303, 316 [35], 324 [63] (‘Expense Reduction’).
For the reasons that follow, I have concluded that the relevant documents are subject to client legal privilege and were mistakenly provided to the defendants. Further, in the circumstances set out below, they should be returned to the Authority and orders made to delete all reference to them in the pleadings.
BACKGROUND
I set out the factual background of this proceeding in my reasons for judgment delivered on 13 October 2020. It is appropriate I set out some of those paragraphs:
1482 M is the registered proprietor of the land. Since March 2020, its sole director is Robert Italiano. Prior to that time its sole director was Anthony Italiano. Robert and Anthony are brothers. They are sons of Giuseppe Italiano and, I understand, Domenica Italiano.
15The shareholder of 82 M is Italiano Appointor Pty Ltd, which holds 100 shares. The sole director of Italiano Appointor Pty Ltd is Giuseppe Italiano.
16GRS operated a glass processing business on the land or part thereof from late 2018 or early 2019. Prior to being placed in liquidation the sole director of GRS was Giuseppe Italiano.
17 GRS operated as a glass processing business pursuant to a licence dated 17 May 2018 issued by the Authority under s 20 of the Act. That section provides, relevantly, that an occupier of a scheduled premises must not relevantly undertake reprocessing or storage of waste unless licensed to do so under the Act.
18 While GRS was operating its glass processing business on the land, on 21 August 2019, the Authority served GRS with a clean-up notice pursuant to s 62A of the Act in relation to high temperatures within a significant quantity of combustible recyclable glass and waste material stockpiled on the land. The clean-up noticed required GRS to reduce the risk of subsurface fire associated with the identified stock prior to 6 September 2019.
19 On 6 September 2019, the Authority determined that the requirements of the clean-up notice had not been complied with. As a result, on that day, the Authority served GRS with a show cause notice stating, among other things, that the Authority was considering exercising its clean-up powers under s 62 of the Act and provided an opportunity for GRS to respond or show cause as to why the Authority should not exercise its powers. It requested a response by 4pm on 20 September 2019. No response was received.
20 Further on 21 and 22 October 2019, the Authority further determined that a discharge of leachate into a neighbouring creak was occurring from the land. By letter dated 25 October 2019, the Authority advised GRS that it would exercise its powers under s 62 of the Act to enter into the land and conduct a clean-up in respect of both the discharge of leachate and the management of the glass stockpile hotspots identified in August 2019.
21 Between approximately 25 October 2019 and 7 July 2020, the Authority caused a clean-up on the land consisting of approximately $28.8M. A summary of the clean-up costs was produced into evidence.
22 On 4 August 2020, the solicitors for the Authority sent a letter of demand to GRS demanding that it pay the clean-up costs. The Authority demanded payment under s 62(2) of the Act on the basis that GRS was the person who caused the action to be taken or was the occupier of the premises upon which the action was taken.
23 On 14 August 2020, Harris Carlson on behalf of the receivers and managers of GRS responded seeking all reports and invoices and other documents to support the clean-up costs. That letter noted that the receivers and managers had issued proceedings against GRS's insurers seeking an indemnity among other things, in respect of some or all of the clean-up costs.
24 Mr Fisken also deposed that on 29 September 2020, 82 M listed the land for sale on the website of real estate agents known as Commercial Real Estate Australia (‘CBRE’). It is in this context that the Authority has approached the court for an interlocutory injunction or a freezing order over the land.
The Authority filed a statement of claim dated 27 October 2020 (SOC). It alleged that:
(1) on 25 October 2019, the Authority determined to exercise its powers under s 62 of the Environment Protection Act 1970 (Vic) (the Act) to enter the land and conduct the clean-up of the land in respect of the stockpile and leachate (the determination, at [19]);
(2) the Authority incurred clean-up costs of approximately $28 million which were reasonable within the meaning of ss 62(2) and 62A of the Act, and in respect of which GRS is indebted to the Authority pursuant to s 62(2) of the Act (at [21]-[22]); and
(3) 82 M is also indebted to the Authority given that at all relevant times 82 M was the owner and/or occupier of the land (at [24] and [28]).
In their defences filed 25 November 2020, the defendants denied these allegations. Further, in [19A], they denied that the Authority lawfully exercised its powers under s 62 of the Act to enter the land and conduct the clean-up of the land in respect of the stockpile and the leachate.
It is appropriate at this stage that I set out the relevant provisions of s 62 of the Act:
(1) Notwithstanding anything to the contrary in this Act, where –
(a) pollutants have been or are being discharged;
(b) a condition of pollution is likely to arise;
(c) any substantial noise is being emitted;
(d) any industrial waste or potentially hazardous substance appears to have been abandoned or dumped; or
(e) any industrial waste or potentially hazardous substance is being handled in a manner which is likely to cause an environmental hazard –
the Authority may conduct a clean up or cause a clean up to be conducted as the Authority considers necessary.
(2) The Authority may recover any reasonable costs incurred by the Authority in taking any action under subsection (1) from the person who caused the action to be taken or the occupier of the premises on which anything referred to in subsection (1)(a) to (e) has occurred in any court of competent jurisdiction as a debt due to the Authority and when recovered is to be paid into the Consolidated Fund.
THE EVIDENCE
As to the evidence in the present applications, the Authority relied upon four affidavits of Caroline Skeoch sworn 1 March 2022, 26 April 2022, 15 June 2022 and 8 August 2022 (the first, second, third and fourth Skeoch affidavits respectively). The defendants relied upon three affidavits of Robin Settle sworn 6 April 2022, 6 June and 26 July 2022 (the first, second and third Settle affidavits respectively).
3.1 The Discovery of the Relevant Documents
On 17 December 2020 I made orders that, amongst other things, the Authority disclose to the defendants the existence of all documents of the kind that are referred to in s 26 of the Civil Procedure Act 2010 (Vic) (CPA) that are, or have been, in the Authority’s possession, custody or control.
On 22 December 2020, in compliance with this order, the Authority served on the defendants an affidavit of documents affirmed by Marc Fisken (the Discovery Affidavit) on the same date. The Discovery Affidavit records that Mr Fisken is an Australian lawyer employed by the Authority who has the care and conduct of this matter on behalf of the Authority.
The Discovery Affidavit contains an index. Schedule 1 contains all the documents relating to the questions in the proceeding. Paragraph [3] of the Discovery Affidavit then provides that the documents enumerated in Part 2 of Schedule 1 are privileged. The claim for privilege in [3] is in the following terms:
The documents enumerated in Part 2 of Schedule 1 are privileged, and I object to produce them. The documents are privileged on the grounds that they are confidential communications between and advisors in their professional capacity and are solely for the preparation of case in this proceeding [sic].
Part 2 of Schedule 1 is contained on page 51 and simply contains a claim for privilege in general formulaic terms and no individual documents are referred to.
As to Part 1 of Schedule 1, relevantly, document 1186 (which appears on page 47 of the index of the Discovery Affidavit) is described as ‘Attachment 16’. The entry for Attachment 16 in the same line of the Discovery Affidavit records it as ‘Privileged’. On the evidence before me this Attachment 16 is a copy of the memorandum, namely, the Memorandum of Advice dated 25 October 2019 from Mr Fisken to the CEO.
Further document 1261 appears on page 51 in the index of the Discovery Affidavit in Part 1 of Schedule 1 under the heading ‘BRIEFS – CEO’. It is described as ‘CEO Briefing GRS s 62 Authorisation’ dated 30 October 2019. Document 1261 is not described as privileged in the Discovery Affidavit. As I set out below, it appears that the document provided for inspection as document 1261 was the briefing paper (which, as set out above, bears the different date of 25 October 2019).
3.2 The Contents of the Relevant Documents
It is appropriate that I now set out the substance of the memorandum and the briefing paper.
The memorandum is 5 pages long. It is called a ‘MEMORANDUM OF ADVICE’. It is addressed to the CEO of the Authority. It is expressed to be from ‘Marc Fisken, Team Leader-Principal Solicitor’. At the bottom of the first page is a box containing the following:
WARNING: this document has been prepared for the purpose of providing legal advice. It must be treated as confidential and must not be referred to, directly quoted from or sent outside the Environment Protection Authority without the prior approval of the Solicitor to the Environment Protection Authority. If legal professional privilege is waived this advice may be accessed under the Freedom of Information Act 1982 and the Privacy and Data Protection Act 2014.
It contains a number of headings including:
(1) A. SUMMARY OF ADVICE;
(2) D. ADVICE SOUGHT;
(3) E. CONSIDERATION/DISCUSSION; and
(4) F. CONCLUSION.
[Deleted in revision]
The briefing paper is dated 25 October 2019. It is headed:
Briefing for the Chief Executive Officer
SUBJECT: Glass Recovery Services - Section 62 authorisation
The briefing paper contains two paragraphs. The first paragraph is under the heading ‘CORE MESSAGE’. I have had regard to this paragraph but I do not consider it is appropriate to set it out in these reasons.
The second paragraph is under the heading ‘RECOMMENDATION/S’. I have had regard to this paragraph but I do not consider it is appropriate to set it out in these reasons.
Beside this paragraph are four boxes. The boxes headed ‘Noted’ and ‘Approved’ have been ticked. The boxes headed ‘Please Discuss’ and ‘Not Approved’ have not been ticked. The briefing paper also bears the stamp of the CEO and her signature with a handwritten date of 25 October 2019.
As noted above, the defendants submitted that the Authority had failed to provide sufficient evidence to establish client legal privilege in respect of the relevant documents, noting that no claim for privilege was made in the Discovery Affidavit over document 1261.
In the fourth Skeoch affidavit, Ms Skeoch deposed on information and belief that:
(1) the memorandum was prepared by the Legal Services Unit (LUS) at the request of the Regulatory Operations Unit of the Authority to provide legal advice for consideration by the CEO as to whether s 62 of the Act could provide justification to commence clean-up works at the plant; and
(2) Mr Fisken prepared the memorandum in his capacity as principal solicitor/team leader of the LUS and that he did not occupy any other managerial or administrative roles on behalf of the Authority.
Ms Skeoch also deposed on information and belief that:
(1) the briefing paper was prepared by Danny Childs, Manager Resource Recovery Facilities Audit Task Force for the Authority; and
(2) the briefing paper was prepared for the purpose of communicating the memorandum to the CEO and to inform her whether, based on the memorandum, it was open to her to exercise the powers under section 62 of the Act.
3.3 The Evidence Concerning Mistake in Providing Relevant Documents
Before addressing the circumstances in which the relevant documents were provided, it would appear on the evidence that Mr Settle obtained a copy of document 1261 (i.e. the briefing paper with the memorandum attached at pages 2 to 6) on inspection of the discovery of the Authority. I say ‘it would appear’ because Mr Settle did not go on oath to express clearly what documents he received, when he received them and what he believed about them at that time. Rather, in the first Settle affidavit, he set out the substance of his letter dated 6 September 2021 in response to the request for the return of the memorandum. That letter did not set out clearly what documents he received, when he received them, and most relevantly what he believed about them at that time.
It is clear however that Mr Settle and counsel then used the briefing paper and the attached memorandum for the purpose of preparing the misfeasance claim against the Authority in the ADC (now also alleged against the CEO in the PFADC).
As to the preparation of the Authority’s discovery, Ms Skeoch deposed that:
(1) in around December 2020, she reviewed the relevant documents at the time the list of documents contained in the Discovery Affidavit was being prepared;
(2) she instructed her administrative assistant, Ms Hiroa-Maiava, that the memorandum was privileged and that it should be marked privileged and not disclosed;
(3) she did not realise that the briefing paper at document 1261 attached the memorandum, or that it referred to the memorandum; and
(4) her failure to realise the matters in (3) above was an oversight and, if Ms Skeoch had realised those matters, she would have directed Ms Hiroa-Maiava to claim privilege over the briefing paper.
As to making the discovery available to the solicitors for the defendants, Ms Skeoch deposed that:
(1) Ms Hiroa-Maiava collated the discovery electronically under Ms Skeoch’s supervision;
(2) from 12 January 2021 to 3 February 2021 an email exchange between Ms Skeoch, Ms Hiroa-Maiava and Mr Settle occurred in which Mr Settle sought to gain access to those documents available for inspection in the Discovery Affidavit;
(3) discovery was provided electronically to Mr Settle by way of a dropbox link by email dated 14 January 2021; and
(4) there were issues with inspecting the contents of the dropbox in mid-January 2021. As a result, discovery was provided by USB device which was hand-delivered to Mr Settle’s office on or about 3 February 2021.
It would appear that the USB was used for the purpose of inspection and that Mr Settle obtained a copy of the briefing paper and the memorandum from the USB. However, I refer to my comments in [36] above.
3.4 The Defendants’ use of the Relevant Documents in the ADC
The first time the Authority became aware the memorandum had been provided to the defendants was on or about 9 August 2021 on review of the ADC which referred to the memorandum.
On 6 August 2021, the defendants filed the ADC. The defendants maintained their allegations in [19] and [19A] of their defences, referred to above. Further, in [75] to [86] of the ADC, the defendants alleged for the first time that when purporting to exercise its powers on 25 October 2019, the Authority was acting beyond power or was recklessly indifferent as to whether it had authority to exercise those powers (i.e. the misfeasance claim). Further, in [87] to [91] the defendants alleged the Authority breached its duty of care.
As to the misfeasance claim, the defendants alleged that the Authority knew the matters set out in [52],[3] [59][4] and [74][5] of the ADC. The defendants then alleged in [84] of the ADC that the determination was beyond power given that the factual basis for the exercise of the power did not exist. The particulars to [84] mirror the language of ss 62(1)(a), (b), (d) and (e) of the Act.
[3]That the stockpile was not industrial waste and was not a fire risk.
[4]That hotspots in the stockpile did not create an imminent risk of fire or would not necessarily result in an environmental hazard.
[5] That Dempster and/or S&OE operated a wood processing business from the adjoining land and if liquids from the adjoining land were collected and diverted into the stormwater pipe on the adjoining land, they would be released from a break in the pipe onto the land and that if the pit on the adjoining land failed, liquids, leachate and water would be released into the public water system and into the environment.
The defendants then alleged in [85] of the ADC that, when the determination was made, the Authority knew that its actions were beyond power and was recklessly indifferent as to whether it had the authority to exercise its powers (i.e. the misfeasance claim). In the particulars to [85], the defendants allege that the Authority knew of:
(1) the matters alleged in [52], [59] and [74]; and
(2) the fact that the only spot fire on the stockpile was caused by the Authority on 24 October 2019.
Further in the particulars to [85], the defendants refer to and allege the substance of the memorandum which they refer to as the ‘legal advice’. I refer in particular to the fourth paragraph of the particulars to [85] of the ADC. I have had regard to this paragraph but I do not consider it is appropriate to set it out in these reasons.
I note that the legal advisers for the defendants referred to the memorandum as ‘legal advice’ before the solicitors for the Authority ever suggested that the memorandum was privileged.
In addition, the particulars to [85] of the ADC:
(1) refer to s 41 of the Act in the context of s 62(1)(b) of the Act; and
(2) allege that the Authority had no factual basis upon which to believe that GRS was likely to discharge leachate from the land.
The substance of the allegations in [84] and [85] of the ADC (including in the particulars to them) are also contained in the PFADC but are made against the CEO.
In response to the ADC, the Authority filed a reply and defence to counterclaim dated 10 December 2021 (RADCC). In response to the allegation in [85] of the ADC, the Authority relied upon an allegation in [81] of the RADCC, namely that the Authority was entitled to exercise its power under ss 62(1)(a), 61(1)(d) and/or 62(1)(e).
3.5 Authority’s Solicitors Learn the Relevant Documents Disclosed
Consistent with [41] above, Ms Skeoch deposed that, when she was provided with a copy of the ADC on 9 August 2021, she became aware of the inadvertent disclosure of the memorandum. No communication had been received prior to this time from Mr Settle, nor any other representative of the defendants that the memorandum had been disclosed.
Thereafter there was a series of communications between the lawyers for the Authority and the defendants in relation to the memorandum. In short, that correspondence reveals that the Authority promptly set out the basis upon which the memorandum should be returned and that the defendants refused to return the memorandum or the briefing paper. As a result, this application was issued. However given that issues of timing are relevant to this application, it is appropriate I address some of the key communications.
On 20 August 2021 Ms Skeoch sent a letter to Mr Settle regarding the inadvertent disclosure of the memorandum. The letter stated that the inadvertent disclosure was the result of ‘voluminous digital discovery … in circumstances where the document has been collated by [the Authority] and or its solicitors in a digital format, and erroneously included in a fourth sub-folder named “license revocation” within a master folder named “GRS Maffra discovery documents”’. The letter noted that the Discovery Affidavit identified the memorandum as being privileged, referring to document 1186 in Part 1.
The letter stated that the Authority maintained privilege over the memorandum and requested the defendants remove any reference to it in the ADC, and that the ADC be re-filed with references to the memorandum being deleted in lieu of simply striking through those references (the Authority’s request). The letter concluded by signalling the Authority’s intention to make an application to the court seeking orders to that effect.
By letter dated 6 September 2021 sent from Mr Settle to Ms Skeoch, the defendants informed Ms Skeoch that they did not consent to the Authority’s request. Mr Settle explained, as set out above, that the defendants’ solicitors did not hold a copy of ‘Attachment 16’ but that they had received a copy of the briefing paper which included the memorandum separately as pages 2 to 6 of document 1261. As noted above, document 1261 in the Discovery Affidavit is dated 30 October 2019 and the briefing paper is not. In his 6 September letter, Mr Settle noted no claim for privilege was made over document 1261 in the Discovery Affidavit.
By email dated 10 September 2021, Ms Skeoch informed Mr Settle that she had been instructed to make an application for the destruction of the memorandum and removal of the reference to the memorandum in the ADC. It would appear, notwithstanding the 6 September letter, that Ms Skeoch did not appreciate at this time any significance in the briefing paper having been provided.
In response, by email dated 13 September 2021, Mr Settle first asserted that the basis upon which the Authority maintained privilege over the memorandum was unclear. Second, Mr Settle requested that before filing the proposed application, the Authority file and serve its reply and defence which was then out of time. He suggested that the pleadings may inform the ’character and context of the document over which privilege is now claimed’.
By an email dated 14 September 2021, Ms Skeoch advised that the grounds for privilege were set out in the 20 August 2021 letter. She noted that the RADCC would be filed and served as soon as possible. She also advised that in the interim, in light of the refusal of the Authority’s request, ‘we are currently drafting an Application and Affidavit in support with regard the issue [sic] of the inadvertent disclosure, for filing and service this week’. The third Skeoch affidavit deposed that much time was spent in finalising the RADCC in October and November and that it was not finalised until 10 December 2021.
By email dated 10 December 2021, Ms Skeoch sent a letter to Mr Settle attaching a copy of the RADCC and repeating the Authority’s request. The letter also foreshadowed the strike out application.
By email dated 14 December 2021 from Mr Settle to Ms Skeoch, the defendants requested further discovery relating to the issues in the ADC and the RADCC. The letter foreshadowed that, once further discovery had been made, the defendants would be in a position to take further instructions as to the privilege issues raised in the letter sent by Ms Skeoch on 10 December 2021. By email dated 21 December 2021 Mr Settle advised that the defendants opposed the strike out application, requesting it not be made returnable prior to February 2022.
By summons dated 25 February 2022 (in fact filed 4 March 2022) the Authority made the privilege application and the strike out application.
3.6 Evidence of Inadvertence
This application first related only to the memorandum. By late April 2022, the application also related to the briefing paper.
Further, in the second Settle affidavit, Mr Settle deposed that a former employee of GRS, Michael Franks, had recently conducted a search of the dropbox provided by the Authority and that Mr Franks had informed him that the master folder contained:
(1) nine documents meeting the description of the memorandum in different pathways based on a search using the words ‘Attachment 16’; and
(2) two versions of the briefing paper.
Mr Settle also deposed that Mr Franks had produced from his inspection (presumably from the dropbox) a Statement of Reasons. It appears that the Statement of Reasons was prepared by Mr Childs of the Authority in relation to revocation of the licence of GRS to operate the plant as a glass works. This revocation took place sometime after December 2019. Page six of the Statement of Reasons refers to Attachment 16 (which Mr Settle believed is the memorandum). However, the memorandum was not annexed to the Statement of Reasons inspected.
The matters in the last two paragraphs were relied upon by the defendants to submit that the provision of the relevant documents was not inadvertent but the result of a failure by the Authority and its advisers to comply with its discovery obligations.
In her third affidavit, Ms Skeoch accepted that, in addition to the provision of discovery of the memorandum paper and briefing paper on the USB, she had reviewed against the dropbox link and confirmed that:
(1) the privileged the memorandum had been inadvertently included seven times, not eight times as asserted in the second Settle affidavit; and
(2) the briefing paper had been inadvertently included two times.
As to the memorandum, Ms Skeoch deposed that:
(1) prior to reading the second Settle affidavit, she was not aware that these pathways in the dropbox contained the memorandum;
(2) consistent with [38](2) above, she recalled instructing Ms Hiroa-Maiava to remove any copies of the memorandum; and
(3) she did not review the contents of the USB device (or presumably the dropbox) given to the defendants by Ms Hiroa-Maiava after issuing that instruction to her. This was an oversight on her part and that she should have done so.
As to the copy of the memorandum identified at file pathway 2, Ms Skeoch deposed that the document was contained under a subfolder entitled ‘statement of reasons GRS attachments zip’. She deposed that:
(1) in her previous searches of the documents provided to the defendants, she overlooked the inclusion of the memorandum at this location;
(2) she has been informed that a zip folder cannot be searched without having its content downloaded and without its content being downloaded any searches of zip folders would not have returned a positive result for a searched document; and
(3) she did not believe a zip folder was downloaded before being searched to determine if copies of the memorandum were contained therein before the USB device containing the discovery was produced to the defendants on 3 February 2021.
With regard to the file pathways numbered 4-8, Ms Skeoch deposed that the memorandum appeared in a folder entitled ‘1277 briefings’ which is contained in the link from the defendants. She deposed that:
(1) upon review of the sharepoint folder held by her there was no folder entitled ‘1277 briefings’;
(2) there is no folder of documents entitled ‘1277 briefings’ in the index to the Discovery Affidavit; and
(3) as a result she believes that the folder entitled ‘1277 briefing’ was provided to the defendants in error.
As to the briefing paper, Ms Skeoch deposed that a copy was contained in a pathway commencing under the folder name ‘1277 briefings’. Consistent with her evidence in the previous paragraph, she deposed that she was not aware that this copy of the briefing paper had been disclosed by mistake and that that disclosure had been inadvertent. Further, she deposed that another copy of the briefing paper was contained in a pathway commencing under the master folder named ‘GRS Maffro [sic] Discovery documents’.[6] She deposed that she inadvertently overlooked the inclusion of this copy of the briefing paper at this file pathway.
[6]It would appear that this may be the document referred to in item 4 in Part 1 of Schedule 1 of the Discovery Affidavit but this was not the subject of argument before me.
SUBMISSIONS
In summary, the Authority submitted that the relevant documents were subject to client legal privilege, that the disclosure of the relevant documents had been inadvertent and that, in all the circumstances, the court should order the return of the relevant documents to the Authority. These submissions were made in accordance with the principles set out by the High Court in Expense Reduction.
The Authority relied in particular on [49] of Expense Reduction where the High Court stated:
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.
First, the Authority submitted that the memorandum and briefing paper are subject to client legal privilege by operation of s 118 of the Evidence Act 2008 (Vic). The Authority submitted that this was evident from the face of the memorandum and the briefing paper. The Authority submitted that the briefing paper was prepared by Danny Childs, an officer of the Authority, for the dominant purpose of providing legal advice (contained in the attached the memorandum) to the CEO of the Authority.
Second, the Authority submitted that the relevant documents were inadvertently included in the non-privileged documents provided to the solicitors for the defendants. Ms Skeoch instructed Ms Hiroa-Maiava to claim privilege over the memorandum. While Ms Skeoch did not instruct Ms Hiroa-Maiava to claim privilege in respect of the briefing paper, she was not aware that it attached or referred to the memorandum. Thus, the discovery and production of the briefing paper was also a mistake. Neither Ms Skeoch or Ms Hiroa-Maiava had authority to waive privilege over the relevant documents.
Third, the Authority submitted that it had acted promptly in seeking the return of the relevant documents after it became aware in August 2021 that the memorandum had mistakenly been provided and that the failure to make an express claim for the briefing paper in the summons was an oversight.
When I sought further submissions as to the reference to ‘unfair’ in [49] of Expense Reduction, the Authority submitted that the principal factors to be taken into account were the conduct of the party claiming privilege and a change in position by the recipient party. As to the conduct of the Authority, counsel referred to the submission recorded at [74] above. As to any change of position by the defendants, counsel submitted that the defendants had not been placed in a position where it would be unfair to order the return of the relevant documents. They contrasted the position in Bradford v Devlot 17 Pty Ltd (No 3) (Bradford) where the documents were disclosed shortly before trial and used in the course of trial preparation and the collation of evidence.[7]
[7][2021] VSC 368.
Counsel for the Authority accepted that the memorandum was of importance for the misfeasance claim but submitted that the memorandum was not the only basis of that claim. Thus it was not of ‘particular’ importance. Counsel acknowledged this proceeding may reach a stage where, by pleadings or evidence, privilege in the relevant documents might be waived, however that stage had not been reached at the time of this application. As a result, in all the circumstances, the relevant documents should be returned.
The defendants submitted in summary that:
(1) the Authority has failed to provide sufficient evidence to establish client legal privilege in the relevant documents and, in particular, the briefing paper;
(2) the Authority has failed to establish that the provision of the relevant documents was a mistake;
(3) the Authority has not established that considerations of fairness require the return of the relevant documents; and
(4) if the provision of the relevant documents was not a mistake, the Authority has waived privilege in each of these documents.
As to whether client legal privilege had been established in the relevant documents, many of the matters relied upon by the defendants were overtaken by the fourth Skeoch affidavit, some relevant parts of which are set out above.
In oral argument the defendants focused on the briefing paper, submitting that the dominant purpose of the briefing paper was not to provide legal advice but to seek authorisation to exercise the powers pursuant to s 62 of the Act. The defendants relied upon the form and content of the briefing paper in the fourth Skeoch affidavit set out in [35] above. They noted the distinction between circulating advice and recommendations made by officers of the corporation having regard to that advice.[8]
[8]The defendants referred at [74] of their written outline of submissions dated 9 May 2022 to Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 4) [2010] FCA 863 (at [22]) (‘Sunland’).
As to whether inadvertence had been established, the defendants submitted that the Authority and its lawyers had not taken every reasonable effort to ensure the accuracy of the Discovery Affidavit or the documents provided for inspection. In doing so, they relied on the statements in Expense Reduction at [46] to the effect that discovery must be a process upon which other parties can reasonably rely and that a party should make every reasonable effort to ensure the accuracy of discovery.
The defendants submitted that, by relying upon administrative assistance to compile the index and an administrative assistant to review the contents of the USB device, the Authority had failed to create a process upon which the defendants could reasonably rely. Indeed, as set out above, they submitted that the Authority and its lawyers had breached their obligations to provide discovery in accordance with the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and/or the CPA.
They noted that, by way of significant example, no claim for privilege was made over document 1261 in the Discovery Affidavit. They also noted that the facts of this case were very different from the facts in Expense Reduction, which involved a failure to code a few privileged documents correctly.
As to considerations of fairness, the defendants submitted that it was not appropriate that the relevant documents be returned to the Authority. In relation to the reference to ‘unfair’ in [49] of Expense Reduction, the defendants submitted that the word ‘unfair’ should be given both its ordinary meaning and its legal meaning, namely one that is analogous with equitable considerations and not limited to any prescribed or finite factors. The defendants also relied upon Bradford, in which the court had undertaken a balancing exercise in ascertaining whether the documents should be returned, having regard to the fact that the plaintiffs made no attempt to claim privilege; the evidence of inadvertence was unconvincing; the plaintiffs did not act promptly; and the defendants had been placed in a position where it would be unfair for the return of documents to be ordered.
As to the importance of the relevant documents to the misfeasance claim, the defendants submitted that the inability to rely upon them would seriously diminish their prospects of success on that claim. They submitted that it was likely to affect their cross-examination of the CEO if she were to give evidence. In these circumstances, it would be unfair for the court to exercise its discretion to order the return of the relevant documents.
As noted above, the argument proceeded on the basis that, if there was inadvertence by the solicitors in the course of discovery, the application was to be determined in accordance with the principles in Expense Reduction. It is to those principles I now turn.
RELEVANT PRINCIPLES AND CONSIDERATION
5.1 The Relevant Legal Principles
Expense Reduction involved the inadvertent disclosure of privileged material by the solicitors for a party in a legal proceeding. In those circumstances the High Court held that the power to order the return of those documents was pursuant to its powers in relation to discovery and pursuant to the Civil Procedure Act 2005 (NSW) (which I will refer to as return orders).The High Court said, at [45]:
Although discovery is an inherently intrusive process, it is not intended that it be allowed to affect a person’s entitlement to maintain the confidentiality of documents where the law allows. It follows that where a privileged document is inadvertently disclosed, the court should ordinarily permit the correction of that mistake and order the return of the document, if the party receiving the document refuses to do so.
This principle was re-stated at [49] of Expense Reduction, set out above in [71].
The statements were made in a context where the High Court highlighted the significance of solicitors using reasonable efforts to ensure the accuracy of the discovery provided on behalf of their clients. The High Court noted at [46]:
… Of necessity, discovery must be a process upon which other parties can reasonably rely. A party should make every reasonable effort to ensure the accuracy of the verified List of Documents which are to form the basis for inspection. It was not suggested that this obligation was not met by the steps taken by [the solicitors] with respect to [their] clients’ discovery, yet mistakes still occurred.
As to the nature of inadvertence, it is important to say something about the facts in Expense Reduction. Discovery of the Expense Reduction Analysts Group parties (the ERA parties) involved approximately 60,000 documents. Document reviewers then coded the documents for relevance and privilege in a database. The reviewers mistakenly failed to code thirteen documents as privileged: nine copies of the same document were coded as privileged. The thirteen documents were included in the discovery of the ERA parties and provided for inspection. On inspection the solicitors for the Armstrong parties observed that a number of documents appeared to relate to communications between the ERA parties and their lawyers. As a result, the solicitors for the Armstrong parties wrote to the solicitors of the ERA parties bringing this matter to their attention.
The primary judge considered it was necessary for the ERA parties to establish that the reviewers/solicitors had actually intended to claim privilege over each of the documents before consideration could be given as to whether a mistake had occurred. In the absence of this evidence, her Honour concluded she could not be satisfied that disclosure of some of the documents was inadvertent.[9] In response, the High Court stated:
It may be accepted that a continuing intention to claim privilege is relevant to the question of whether there has been a waiver of the privilege. But it was not necessary to prove a continuing intention to show that a reviewer formed an intention with respect to each document at the time it was listed. It was sufficient to prove that the ERA parties intended to maintain their claims to privilege and that the reviewers were carrying out their clients’ instructions. From that point, the fact of mistake in the incorrect listing of the documents could be inferred. The evidentiary value of the correct listing of the nine duplicate documents in the privileged section is to confirm, specifically, that their contrary listing as non-privileged resulted from an error and to suggest, more generally, that mistakes were being made in the process of listing.
The finding which should have been made with respect to each of the thirteen documents in question was that its disclosure was inadvertent and unintentional, as … claimed.[10]
[9]Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWSC 393.
[10]Expense Reduction (n 2) 312-13 [20]-[21].
Thus, the court is prepared to infer inadvertence, particularly in circumstances where the client has at all relevant times maintained its claim for privilege over the relevant documents.
As to the considerations which might result in the return of the relevant documents being unfair, as noted above, at [49] in Expense Reduction the High Court stated:
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.
The High Court considered these principles in the context of the approach of the English Courts, and in particular, Guinness Peat Properties Ltd v Fitzroy Robinson Partnership (Guinness),[11] to the discovery of privileged documents inadvertently disclosed by a solicitor.[12] In Guinness, the English Court of Appeal concluded that where inspection has been procured by fraud or mistake the court has power in its equitable jurisdiction to intervene, even after inspection, by the grant of an injunction for the return of the relevant document. Slade LJ, with whom Woolf LJ and Sir George Waller agreed, continued:
Furthermore, in my view it should ordinarily intervene in such cases, unless the case is one where the injunction can properly be refused on the general principles affecting the grant of a discretionary remedy, for example, on the ground of inordinate delay…[13]
[11][1987] 1 WLR 1027 (‘Guinness’).
[12]Discussed in Expense Reduction (n 2) 317-19 [36]-[42].
[13]Guinness (n 11) 1046.
For my part, I read the reference in Expense Reduction to ‘considerations (analogous to equitable considerations)’,[14] in their context to be similar to the discretionary considerations such as those upon which an injunction can properly be refused. This is notwithstanding the High Court in Expense Reduction put forward a different basis for making return orders to the basis considered in Guinness.
[14]Expense Reduction (n 2) 320 [49] (emphasis added).
In the context of return orders, one such consideration is delay, which is mentioned in Guinness (set out in [93] above) and in Expense Reduction at [49]. Another consideration is whether the relevant document is of particular importance (mentioned in in Expense Reduction at [49]), with the result that the return of the document would prejudice the recipient. It also seems appropriate to have regard to the evidence as to the nature of the inadvertence and the response of the recipient, given the circumstances in which the relevant documents were received.
My conclusions in this regard are reinforced by the analysis of the High Court in Expense Reduction:
This was not a case where the fact of mistake was disputed. There was no conduct on the part of [the solicitors] and [their] clients which would have weighed against the grant of that relief. There was no delay of any significance in the mistakes being notified or confirmed. The primary judge was not persuaded that the Armstrong parties would be prejudiced by requiring the disks to be returned.
It is difficult to see what benefit the Armstrong parties could have believed would be obtained by them by attempting to retain the documents. The possibility that they might support a further claim in the nature of a conspiracy between the ERA parties was canvassed. A similar claim had previously been struck out. It was not apparent to Sackville A-JA in the Court of Appeal that the additional claims would add anything of substance. It is not immediately obvious how an attempt to replead such a claim could be said to advance the overriding purposes of the CPA.[15]
[15]Expense Reduction (n 2) 324 [61]-[62] (citations omitted).
5.2 Consideration
I am satisfied that the memorandum and the briefing paper which attached it were prepared for a privileged purpose, namely, for the dominant purpose of providing legal advice to the Authority. This is based upon the evidence in the fourth Skeoch affidavit and, most relevantly, my inspection of the memorandum and the briefing paper. As to the memorandum, it is clear that it was prepared for the dominant purpose of providing legal advice to the Authority. Further, I have formed the view that even on a cursory inspection it was evident that the memorandum was privileged. In this regard I note my comments in [46] above.
As to the briefing paper, I have also formed the view that it was prepared for the dominant purpose of providing legal advice to the CEO of the Authority. I accept that the briefing paper was between executives and also contained the recommendation. However there are two matters to note. First, the first paragraph of the briefing paper which referred to the memorandum and the fact that it was attached was headed ‘CORE MESSAGE’. Second, the purpose of the briefing paper was not solely to obtain authorisation: as noted in [32] above, it also contained a box titled ‘Please Discuss’. This is in circumstances where the briefing paper did not refer to other matters (except the memorandum) in relation to the recommendation and where the memorandum was addressed to the CEO. As a result, I am satisfied that the dominant purpose of providing the briefing paper was for the purposes of providing the legal advice in the memorandum to the CEO, notwithstanding that the recommendation was made and an authorisation may be given.
Even if I am wrong and the briefing paper was not prepared for the dominant purpose of legal advice, a copy of a privileged document which is brought into existence for a non-privileged purpose is itself privileged.[16] So too are extracts of a privileged document referred to in a memo for a non-privileged purpose.[17] Of course, the briefing paper was between senior executives of the Authority: there is no suggestion that confidentiality or privilege was lost.[18] I note in passing that Edmonds J, in 12 Years Juice Foods Australia Pty Ltd v Federal Commissioner of Taxation, did not disagree with the proposition that where a recommendation itself reveals directly, or by implication, the content of the underlying privileged communication, it will itself be privileged, at least to the extent it reveals the privileged communication.[19]
[16]See, eg, Re Optimisation Australia Pty Ltd [2016] NSWSC 1581, [37]–[39]. See also, Harden Shire Council v Curtis [2009] NSWCA 179, [21] (Handley AJA, Hodgson JA and Campbell AJA agreeing) (‘Harden’).
[17]Sunland (n 8) [22].
[18]Harden (n 16) [22]-[23].
[19][2015] FCA 741, [22].
In this context, and in light of the defendants’ reliance on waiver, I wish to note the statement under the heading ‘CORE MESSAGE’ in the briefing paper. In my view, that is far from an assertion of the kind considered in Commissioner of Taxation v Rio Tinto Ltd.[20] In that case, the contents of a privileged memorandum were relied upon by the Commissioner in response to a request for particulars to justify the basis of the validity of the Commissioner’s state of satisfaction which was a key part of the Commissioner’s claim.
[20](2006) 151 FCR 341, 362 [71], [72].
I am also satisfied that the relevant documents were inadvertently provided to the solicitors for the defendants as part of the process of inspection of the discovered documents of the Authority. This is in circumstances where:
(1) the solicitor for the Authority instructed her administrative assistant that the memorandum was privileged and should be marked as privileged and not disclosed;
(2) the solicitor for the Authority did not realise that the briefing paper (i.e. document number 1261) attached the memorandum, or that it referred to the memorandum: this was an oversight and if she had realised that the briefing paper attached the memorandum or referred to it, she would have directed her administrative assistant to claim privilege over the briefing paper; and
(3) there is no evidence that the Authority ever intended to waive privilege over the memorandum or the briefing paper.
I note that the defendants rely upon the fact that additional copies of the memorandum and the briefing paper were provided in the dropbox to challenge any suggestion of inadvertence. The circumstances in which this occurred are explained by Ms Skeoch and set out in section 3.6 above. I refer in particular to her evidence that, upon review of the sharepoint folder held by her, there was no folder entitled ‘1277 briefing’ and that the contents of the zip folder appear not to have been downloaded at the time she reviewed it. It suffices to say that, in the circumstances of this case, I have formed the view that the disclosure of these additional copies was also inadvertent.
In this context, it is appropriate that I record that the conduct of the solicitors for the Authority was far from exemplary. In particular, it appears that a solicitor failed to review thoroughly the documents listed in the Discovery Affidavit before it was prepared and/or review thoroughly the documents to be made available for inspection either on the USB or in the dropbox. However in my view, those factors do not necessarily mean the relevant documents were not inadvertently provided to the solicitors for the defendants. Further, I consider that Ms Skeoch has been frank in deposing to the errors and oversights in this process. I remain of the view that the provision of the relevant documents and the additional copies of them was inadvertent.
As a result I will now consider, consistent with Expense Reduction, whether I should decline to make a return order.
I am satisfied that the Authority acted promptly once it became aware of the inadvertent discovery of the memorandum. While it took some time for this application to be issued, as set out in section 3.5 above, there are reasons for this delay (including undertaking steps at the request of the defendants before issuing the application).
I also take into account the nature of the inadvertence set out in [101]-[102] above.
Further, as set out above, the circumstances in which Mr Settle first reviewed the briefing paper and the memorandum and, more relevantly, what he believed at the time, were far from clear in his affidavits. To the extent that the defendants relied upon the fact that document 1261 was not listed as privileged in the Discovery Affidavit, as noted above, the date of document 1261 is different to the date on the briefing paper.
The date of the briefing paper is of some significance. It was the date upon which the determination was made (and the clean-up notice sent).[21] That determination was the basis upon which the Authority claimed the clean-up costs in this proceeding. Thus the document 1261 apparently provided (i.e. the briefing paper) was not the same as the description of document 1261 in the Discovery Affidavit. It also contained the memorandum which on its face was clearly ‘legal advice’. As noted above, it was referred to as such in the particulars to [85] of the ADC.
[21]As set out in section 2 above, in [19A] of their defences filed 25 November 2020, the defendants denied that the Authority lawfully exercised its powers under s 62 to enter the land and conduct the clean-up of the land in respect of the stockpile and the leachate.
In all these circumstances it is, to say the least, surprising why some inquiry was not made by the solicitors for the defendants of the solicitors for the Authority as to whether there had been some mistake. Rather, the relevant documents were used over the 4 months to prepare the misfeasance claim in the ADC. In my view, in the absence of Mr Settle going on oath to explain what he believed at the time, this conduct does Mr Settle no credit.
As to the importance of the relevant documents, in my view they are important to the misfeasance claim. Nevertheless, they are far from the only basis upon which that claim may be pursued. This is consistent with the allegations in support of the claim set out in section 3.4 above. This is also in light of the concession of counsel for the Authority that it was content for the misfeasance claim in the PFADC to be pursued so long as the reference to the relevant documents in the particulars was deleted.
Counsel for the defendants noted that the inability to rely upon the relevant documents meant that the prospect of succeeding in the misfeasance claim would be reduced. Counsel indicated that, if returned, the relevant documents could not be put to the CEO in the event she gave evidence. The defendants submitted that, there are no other discovered documents that evidence the basis upon which the determination was made. As a result, counsel submitted that the return of the relevant documents would mean that the defendants could not ‘interrogate the parameters on which the power was exercised’.
While I consider that the return of the relevant documents is likely to reduce the prospects of success to some extent, I do not consider that the return of the relevant documents would prevent the defendants from interrogating the ‘parameters on which the power was exercised’. This is in light of the various allegations in support of the misfeasance claim, independent of the relevant documents, set out in section 3.4 above.
Further, in this context I refer again to the statement under the heading ‘CORE MESSAGE’ in the briefing paper. In these circumstances, the memorandum itself was not evidence that the determination was made in circumstances where the Authority/CEO knew that it was beyond power, or was recklessly indifferent as to whether the Authority/CEO had a basis to exercise those powers.
At the conclusion of oral argument, in the context of whether the relevant documents were of particular importance, I sought short written submissions from the parties as to the relevance of the CEO’s state of mind at the time of the determination to exercise the powers under s 62 of the Act to the claims made in the proceeding (other than the misfeasance claim). The Authority submitted that the state of mind of the CEO was not relevant, including on the proper construction of s 62 of the Act: it sufficed if sufficient factual matters were in existence to justify the relevant decision.
The defendants submitted that the CEO’s state of mind at the time of the determination was put in issue by the defendant’s defence that the determination was not validly made ([19A] of the ADC) and by the misfeasance claim.
The defendants submitted that the correct construction of s 62 of the Act could not be considered at an interlocutory stage and that, in any event, the construction adopted by the Authority was not supported by the case law and not relevant to the privilege application. The defendants submitted that the relevant question was whether the briefing paper had been put in issue such that privilege had been waived or its importance to the issues in dispute was such that the court ought not to exercise its discretion to make a return order.
I do not accept these further submissions of the defendants. Given my conclusion that the briefing paper is privileged and was inadvertently disclosed, consistent with Expense Reduction, the issue is whether the documents are of particular importance such that it would be unfair to make a return order. For the reasons set out in [110]-[113], I am not satisfied that the briefing paper or the memorandum are of such importance. Further, to the extent that the defendants contend that issue waiver is relevant, in my view there is no conduct on the part of the Authority in relation to these proceedings whereby it has put in issue its state of mind or the state of mind of the CEO such that privilege in the briefing paper, let alone the memorandum, has been waived. I refer to my comments in [100] above.
In all the circumstances of this case, I have concluded that it is appropriate to order the return of the relevant documents in the exercise of my discretion and it would not be relevantly unfair to the defendants to do so.
I request that the legal advisors for the parties consider the appropriate form of order (including in relation to the ADC and the PFADC) in light of these reasons. I will hear from the parties in due course on the question of costs.
---
0
7
0