Ewing International Limited Partnership v Ausbulk Ltd - [2009] SASC 317

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
EWING INTERNATIONAL LIMITED PARTNERSHIP v AUSBULK LTD
[2009] SASC 317
Reasons for Ruling of The Honourable Justice Layton
6 October 2009
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - ORDERS FOR FURTHER AND BETTER DISCOVERY
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - LEGAL PROFESSIONAL PRIVILEGE - WAIVER OF PRIVILEGE
Application for further and better disclosure – state of mind of respondent company relevant to the respondent's pleadings – applicant alleges that respondent's state of mind is represented not only by the state of mind of its company secretary and in house counsel but also by the state of mind of its external solicitor and legal counsel – applicant seeks disclosure of documents which are directly relevant to the state of mind of the external solicitors and legal counsel of the respondent – respondent’s pleadings relate to state of mind up to 28 February 2009 – documents before 28 February 2009 voluntarily provided to applicant by respondent - applicant seeks any documents created after 28 February 2009 which retrospectively sets out the belief or understanding of the solicitors and legal counsel about events that had prior to 28 February 2009 – applicant concedes that documents sought are the subject of legal professional privilege – whether privilege waived by virtue of the pleadings.
Held: no waiver – any documents created after 28 February 2009 are subject to litigation privilege – pleadings do not expressly or impliedly waive privilege in any documents created after 28 February 2009 which retrospectively sets out the belief or understanding of the solicitors and legal counsel.
Evidence Act 1995 (Cth), referred to.
Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152; Attorney-General (NT) v Maurice (1986) 161 CLR 475; Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 225 FLR 1; Baker v Campbell (1983) 153 CLR 52; Grant v Downs (1976) 135 CLR 674; Kennedy v Wallis (2004) 208 ALR 424; Mann v Carnell (1999) 201 CLR 1, considered.

EWING INTERNATIONAL LIMITED PARTNERSHIP v AUSBULK LTD
[2009] SASC 317
Civil

LAYTON J: This is an application for further and better disclosure. The applicant is the plaintiff in this action, Ewing International Limited Partnership (“Ewing”) and the respondent is the defendant, Ausbulk Ltd (“Ausbulk”). Although Ewing initiated these proceedings and is generally referred to by the parties as the plaintiff, subsequent events have resulted in Ewing being the party against whom final relief is presently sought. Accordingly, for the sake of clarity, I will not employ the terminology of plaintiff and defendant but will simply refer to the applicant as Ewing and the respondent as Ausbulk.
On 28 September 2009 Ewing filed an interlocutory application seeking further and better disclosure. The full text of the application is as follows:
1.By close of business on Thursday 1…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] SASC 317
Decision Date: 6 October 2009

CaseChat Overview and Summary

The matter before the court involved an application by Ewing International Limited Partnership for further and better disclosure from Ausbulk Ltd. The dispute centred on the state of mind of Ausbulk as relevant to its pleadings. Ewing contended that Ausbulk's state of mind was represented not only by its company secretary and in-house counsel but also by its external solicitor and legal counsel. Consequently, Ewing sought disclosure of documents directly relevant to the state of mind of Ausbulk's external solicitors and legal counsel, particularly those created after 28 February 2009.

The central legal issue was whether Ausbulk's pleadings constituted a waiver of legal professional privilege in respect of documents created after 28 February 2009. Ewing argued that since Ausbulk's pleadings related to its state of mind up to 28 February 2009, documents created after this date, which retrospectively set out the belief or understanding of the solicitors and legal counsel about events prior to 28 February 2009, should be disclosed. Ausbulk, on the other hand, maintained that no waiver of privilege had occurred and that any documents created after 28 February 2009 were subject to litigation privilege.

The court found that Ausbulk's pleadings did not expressly or impliedly waive privilege in any documents created after 28 February 2009. The court noted that Ausbulk had voluntarily provided documents created before 28 February 2009, but this did not extend to documents created subsequently. The court held that any documents created after 28 February 2009 were subject to litigation privilege and that the pleadings did not waive this privilege. Consequently, the application for further and better disclosure was dismissed.

The court's decision was grounded in the principle that legal professional privilege is not waived by mere reference to the state of mind of a party in pleadings, unless there is a clear and unequivocal statement to that effect. The court concluded that since Ausbulk's pleadings did not constitute such a waiver, the application for disclosure of documents created after 28 February 2009 was properly resisted. The court dismissed the application and ordered that it was without merit.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It was following that exchange and the amendments that the current interlocutory application was taken out. The evidence The evidence before me on this application consisted of three affidavits and their annexures. An affidavit of Thomas William Wellington Rice together with exhibits filed on 28 September 2009; an affidavit of Catherine Patricia Mayfield and exhibits filed on 28 September 2009, both filed on behalf of Ewing. Ausbulk filed an affidavit of James Brendon Kearney on 29 September 2009, together with exhibits. Subsequently at the hearing of the application I was informed by counsel for Ausbulk that the issue between the parties had been narrowed. Ausbulk had made disclosure, on a without prejudice basis, of all of the documents created before 28 February 2009 which would fit in the categories set out in paragraphs 1.1 to 1.10 of the interlocutory application. This disclosure was confirmed in para 6 of the affidavit of Mr Kearney filed on 29 September 2009, in which he deposed:I confirm to this Honourable Court, without conceding or accepting the relevance of the documents identified in categories 1.1 to 1.10 of Ewing’s application dated 28 September 2009, that any such documents have been discovered in these proceedings created in the period up to 28 February 2009. Further, I was informed that there had been inspection of those documents by Ewing, also on a without prejudice basis. Five of those documents were identified by Ewing as being documents of interest to them and Ausbulk had waived legal professional privilege in respect of those five documents. In relation to the remaining paragraphs of the application, namely paragraphs 1.11 to 1.13, Mr Kearney deposed as follows:7.In relation to category of documents in paragraph 1.11 and 1.12 of Ewing’s application, I say:7.1 there was no teleconference or meeting attended by Mr Bannister and/or myself between February 2009 and April 2009 with Mr Roff and accordingly there are no documents discoverable in that regard; and7.2 any document relating to Minter Ellison’s letter to Lynch & Meyer dated 28 May 2009, and subsequent communications were prepared for the dominant purpose of and in connection with these proceedings as set out in the further amended points of claim. They are not records created contemporaneously with the events subject of these proceedings. Ausbulk disputes that there has been any express or imputed waiver of privilege in respect of any such documents.8. In relation to paragraph 1.13 I confirm:8.1 at the time Ausbulk’s list of documents was being prepared for the purposes of disclosure in these proceedings, I caused enquiries to be made of ABB Grain Limited and/or Ausbulk as to the existence or otherwise of any documents discloseable in these proceedings. Any such documents were discovered, namely communications with Mr Roff;8.2 I have again sought and received instructions from Mr Roff that all internal communications and file notes and/or advices directly relevant to the issues in dispute in these proceedings have been discovered.9. In relation to paragraph 1.13 I confirm:9.1 at the time Ausbulk’s list of documents was being prepared for the purposes of disclosure in these proceedings, I caused enquiries to be made of Mr Blue QC as to the existence or otherwise of any documents discloseable in these proceedings. Any such documents were discovered, namely communications with Mr Blue QC;9.2 I have again sought and received instructions from Mr Blue QC as to whether he has or had file notes and/or advices directly relevant to the issues in dispute in these proceedings. Mr Blue QC has confirmed and I believe that there are no such documents.The issue in brief

Decision

Reasons for decision

In the absence of something more specific being put by Ewing, I reject that application as not being relevant and appropriate in the circumstances. Conclusion I therefore refuse the application sought by Ewing, for reasons so far published. I reserve to myself the right to give any further reasons should this be necessary. I order that the application is dismissed.

Ratio Decidendi

Legal Principle Established

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