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 October 2009 the Defendant provide disclosure of the following documents that are or have been in the Defendant’s possession (within the meaning of Rule 4 of the Supreme Court Rules 2006):
1.1.   all documents that relate to the question whether or not, on or prior to 26 February 2008, Mr Blue, Mr Bannister or Mr Kearney held the belief or made the assumption, referred to in paragraph 42 of the defendant’s Second Further Amended Points of Claim (“Points of Claim”), that Ewing was obliged to tender substitute guarantees (as that phrase is used in the Points of Claim) at least one month prior to the expiry of the existing Guarantees;
1.2.   all documents that relate to the question whether or not Mr Blue, Mr Bannister or Mr Kearney knew, believed or assumed, at any time prior to the entry of the consent orders made on 26 February 2008 (as referred to in paragraph 43 of the Points of Claim), that Ewing acknowledged or agreed that it was obliged to tender substitute guarantees at least one month prior to the expiry of the existing Guarantees;
1.3.   all documents that relate to the question whether or not Mr Blue, Mr Bannister or Mr Kearney, at any rime prior to the entry of the consent orders made on 26 February 2008, made or expressed the assumption that Ewing was obliged to render substitute guarantees at least one month prior to the expiry of the existing Guarantees;
1.4.   all documents that relate to the question whether or not, prior to Mr Blue being instructed to consent to the entry of the consent orders made on 26 February 2008, Mr Blue, Mr Bannister or Mr Kearney made or expressed the assumption that Ewing was obliged to tender substitute guarantees at least one month prior to the expiry of the existing Guarantees;
1.5.   all documents that relate to the question (as referred to in paragraph 49 of the Points of Claim) whether or nor Mr Blue, Mr Bannister or Mr Kearney would not have consented to the orders of 26 February 2008 if he had known that Ewing would maintain that it was not obliged to tender substitute guarantees at least one month prior to the expiry of the existing Guarantees and, in particular, documents that record, evidence or relate to:
1.5.1.opinions formed by Mr Blue, Mr Bannister or Mr Kearney as to steps which the defendant could or would have taken if the defendant had asserted prior to 26 February 2008) that it was not obliged to tender substitute guarantees at least one month prior to the expiry of the existing Guarantees;
1.5.2.the question whether or not Mr Blue, Mr Bannister or Mr Kearney considered whether the defendant could and should have sought an order from the Court (between 8 February 2008 and 29 February 2008) expressly imposing upon Ewing an obligation to tender substitute guarantees at least one month prior to the expiry of the existing Guarantees;
1.6.    all documents that relate to, record or evidence:
1.6.1.the decision of the legal advisers to the defendant to vary the form of proposed paragraph 3 of the minutes of order, as set out in Exhibit ASR 36 to the affidavit of Ashley Sherwood Roff sworn 4 September 2009, as opposed to the form set out at page 90 of the tender book (Exhibit Dl), being the attachment to the email of Mr Jenner dated 13 February 2008 at 2:50 p.m.
1.6.2.The consideration by Mr Blue, Mr Bannister or Mr Kearney of the purpose or effect of that variation;
1.7.   all documents that relate to the question whether or not Mr Blue, Mr Bannister or Mr Kearney believed, during the period from 8 February 2008 to 26 February 2008, that Ewing had the intention referred to in paragraph 55 of the Points of Claim, namely to tender substitute guarantees until the determination of the arbitration;
1.8.   all documents that record or evidence a belief on the part of Mr Blue, Mr Bannister or Mr Kearney that, between 8 February 2008 and 26 February 2008, an agreement or bargain (as referred to in paragraph 57 of the Points of Claim) had been reached between the parties under which Ewing was obliged to render substitute guarantees at least one month prior to the expiry of the existing Guarantees;
1.9.   all documents that relate to the question whether or not Mr Blue, Mr Bannister or Mr Kearney held or expressed an opinion as to the likely or intended effect of:
1.9.1.paragraph 5 of the orders of the Court, as entered on 26 February 2008;
1.9.2.paragraph 4 of the draft orders attached to the letter from Lynch Meyer to Minter Ellison dated 22 February 2008 (part of exhibit ASR 37 to the affidavit of Ashley Sherwood Roff sworn 4 September 2009 and filed herein);
and, without limiting the generality of the foregoing, all documents which relate to:
1.9.3.the question whether or not Mr Blue, Mr Bannister or Mr Kearney held or expressed the opinion or belief, during the period from 8 February 2008 to 28 February 2009, that, in the event that Ewing did not tender substitute guarantees at least one month prior to the expiry of the existing Guarantees, Ausbulk:
1.9.3.1.required a further order of the Court before it could call on the February 2008 Guarantees; or
1.9.3.2.had the right to present the February 2008 Guarantees without a further order of the Court;
1.9.4.the circumstances in which Mr Blue, Mr Bannister or Mr Kearney believed that Ausbulk was entitled to present the February 2008 Guarantees;
1.10. all documents that relate to, record or evidence:
1.10.1.Ausbulk’s decision not to present, or its omission to present, the February 2008 Guarantees; or
1.10.2.the reasons for its decision or inaction;
1.11. all documents that led to the request in the letter from Minter Ellison to Lynch Meyer dated 28 May 2009;
1.12. all file notes, tax invoices, WIPS reports and timesheets of Mr Bannister or Mr Kearney that evidence or record any telephone conference or meeting involving Mr Bannister and/or Mr Kearney, on the one hand, and Mr Roff, on the other, between 1 February 2009 and 31 May 2009 in which the February 2008 Guarantees were discussed, including the telephone conference and the meeting between February 2009 and April 2009 of which Mr Roff gave evidence during these proceedings on Monday 29 September 2009 (page 45 of the transcript);
1.13. all internal communications, and file notes of personnel, at Ausbulk or ABB Grain Limited directly relevant to the issues in dispute in these proceedings;
in the ease of each of the above categories, for the avoidance of doubt, whether those documents were created before, during or after February 2009.
2.That by close of business on Friday 2 October 2009 the Defendant produce for inspection by the Plaintiff:
2.1.    the documents described in paragraph I of this order;
2.2.   the documents listed in the “List of Document on which Privilege is Claimed’ attached to the email from Mr Kearney of Minter Ellison to Ms Mayfield of Lynch Meyer dated 27 September 2009 (comprising Exhibit “CPM-6” of the Affidavit of Ms Mayfield sworn 28 September 2009); and
2.3.   the originals of all email communications, including the attachments to those emails, which are included in the Defendant’s Lists of Documents.
The context of the application
This application was taken out when the trial was almost completed, subject to a few outstanding evidentiary matters. In particular, the application arose following an application made by counsel for Ausbulk on 23 September 2009 to file an amended Points of Claim. The amendment, which I later granted, sought to add two further paragraphs, 25A and 28A, being references to passages of transcript of statements made by the then counsel for Ewing, alleged to be related to the agreements which are the subject of the present litigation. The amendments also affected pleadings as to the claim of estoppel and the basis for “assumption” (paras 42 and 43), as well as the pleadings in relation to common mistake (paragraph 54). In the course of proffering argument as to the relevance of the pleadings and that they should be allowed, counsel for Ausbulk said:[1]
I don’t accept and I will not be accepting when I come to final addresses that Mr Roff’s only state of mind is relevant. There are a number of persons who are agents of the defendant company, whose mistakes are clear from communications that are in evidence and the communications go well beyond what simply exhibits to Mr Roff’s affidavit. And I rely on those communications.
[1] T 203.
Counsel for Ewing, in turn made the following submissions:[2]
One other matter arises from what my learned friend said in his reply a moment ago. He said that indirectly he’d be relying upon the state of mind condition, those of Mr Roff. To the extent to which he proposes to rely upon the states of mind of the defendant’s legal advisors we’ll be making an application for further and better discovery because while we have some material from Mr Blue to Minter Ellison, we have not been given discovery of communications the other way and we require my learned friend, in light of what he’s just said, to call on his instructors to make immediate discovery and production, perhaps tomorrow, of communications from Minter Ellison to Mr Blue connected with the communications referred to in the points of claim and connected with other communications which have already been discovered. Because they form part of the state of mind to which my friend referred a moment ago and we have been given one file note of Mr Kearney. We now expect, in light of what my learned friend has said, that we’ll have proper discovery of documents which relate to states of mind of the defendant’s legal advisers.
[2] T 204-5.
Counsel for Ausbulk in reply sought to narrow the breadth of his earlier expressed submission by indicating that his comments were specifically referring to a document ASR 34.[3] This was an email from Adam Bannister reporting that:
[T]o date the dealings between Counsel (and with the court) has been on the basis that Ewing will supply an unlimited guarantee – hence the proposed order that the performance guarantees be extended until further order. We are expecting to see the proposed form of the guarantee shortly and will object if there is any departure from what we and the court has been led to expect.
[3] Exhibit ASR 34 to affidavit of Ashley Roff filed 4 September 2009 (at TB 101).
Counsel for Ausbulk submitted that the content of that email was linked to the transcript references sought to be inserted in the Points of Claim. Counsel for Ausbulk stated:[4]
There is a [sic] clear evidence that what was said in court was informing the mind of Mr Bannister who is advising Mr Roff. That’s what that’s about.
[4] T 205.
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; and
7.2    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
As a result of the affidavit and the disclosure already made by Ausbulk, the current issue between the parties on this application, is not with respect to the documents created before 28 February 2009, but any documents which may have been created in a period commencing 1 March 2009 to date, in relation to paragraphs 1.1 to 1.10 of the application. In relation to paragraph 1.11 of the application, as set out above, Mr Kearney deposed in para 7.2 of his affidavit, that any document which related to the letter from Minter Ellison to Lynch Meyer dated 28 May 2009, as well as subsequent communications, were prepared for the dominant purpose of and in connection with these proceedings.
Ewing does not contest that the documents created after 28 February 2009, which fell within the description in its application as set out in paragraphs 1.1 to 1.11 would attract legal professional privilege. Instead, the argument of Ewing was that there was an implied waiver of that privilege by reason of the pleadings of Ausbulk, as contained in paragraphs 42, 43, 49, 55 and 57 of the Points of Claim.
The interlocutory application
The interlocutory application in general terms, sought disclosure of documents related to “the belief”, “the assumption”, “the opinions formed”, the “decision” and the “consideration” of the two solicitors, Mr Bannister and Mr Kearney and the counsel, Mr Blue QC, whom I will collectively refer to as “the legal team” of Ausbulk. The topics on which disclosure is sought may generically be described as referring to the “state of mind” of each of the lawyers comprising the legal team. Disclosure is sought of all documents of the type identified, whether those documents had been created “before, during or after February 2009”.
The significance of 28 February 2009 must be viewed in a chronological context.
Chronological context
The relevant limited chronology for the purposes of this application, as gleaned from the pleadings, is that on 14 February 2008 and in the alternative, on 20 February 2008 Ewing and Ausbulk entered into an agreement(s) regarding the extension of Bank Guarantees to be taken out by Ewing for the benefit of Ausbulk. In so expressing the subject of the alleged agreement(s), I am not intending thereby to reflect any legal conclusion on my part as to the legal effect of the agreement(s).

In 8 February 2008 I handed down a judgment with reasons for decision which included certain orders, in respect of a dispute between the parties on an interlocutory application for an injunction which included reference to extension of Bank Guarantees by Ewing.
On 26 February 2008 I made certain court orders with the consent of the parties on the topic of extension of Bank Guarantees.
On 22 February 2008, Ewing provided to Ausbulk replacement 12 month Bank Guarantees which had an expiry date of 1 March 2009. As pleaded, the alleged agreements and court orders made on 26 February 2008 expressed that Ausbulk would be able to present the guarantees for satisfaction in the one month period prior to this expiry date, if Ewing had not, by that date, provided Ausbulk with further bank guarantees. Therefore the one month period referred to ran from 1 February 2009 to 28 February 2009 inclusive. Hence the significance of the date 28 February 2009.
The next relevant date referred to in the pleadings is 28 May 2009, being the date when solicitors for Ausbulk wrote to solicitors for Ewing seeking, inter alia, a copy of any substitute Bank Guarantees obtained by Ewing.
On 10 June 2009 Lynch Meyer responded by denying that Ewing had any obligation to tender substitute Bank Guarantees.
The arguments
Counsel for Ewing argued that there was implied waiver of legal privilege in respect of the state of mind of each of the legal team in relation to the matters set out in paragraphs 1.1 to 1.11 of the application having regard to the pleadings of Ausbulk in paragraphs 42, 43, 49, 55 and 57 of the Points of Claim. These paragraphs, in various ways, pleaded, relied upon and put in issue the state of mind of Ausbulk.
Counsel for Ewing noted that Ausbulk had limited ‘state of mind’, for the purposes of its pleadings, as being the mind of Mr Roff, who was the company secretary and in-house legal counsel of Ausbulk. However, Ewing contended that this did not prevent it from arguing that the state of mind of Ausbulk was not only represented by Mr Roff, but also by the state of mind of the legal team who were acting on behalf of Ausbulk. The state of mind of the legal team was relevant because they were the “primary agents” of Ausbulk in its dealings with Ewing and, in particular, because of their role in the transactions and negotiations leading to the consent orders.[5] It was submitted that this was particularly so during a period in which Ewing alleges that Mr Roff had been kept “out of the loop” in the negotiations, namely between 19 February 2008 to 27 February 2008.[6] Thus it was contended by Ewing that Ausbulk had impliedly waived the legal professional privilege that would otherwise have attached to the state of mind of the legal team.
[5] T 244-7.
[6] T 134.
Counsel for Ausbulk argued in response that, to the extent that the state of mind of the legal team was relevant, disclosure obligations had been satisfied by the disclosure of all relevant documents which had been created up to 28 February 2009. This disclosure covered the period when the legal team were acting in respect of the period of the alleged agreements and consent orders and up to the expiration of the Bank Guarantees which gave rise to this cause of action. What Ewing are now seeking is any document which may have been subsequently created by any of the legal team that retrospectively sets out their belief or understanding about events that had occurred 12 or more months earlier. It was submitted that any such documents, if they did exist, were clearly subject to legal professional privilege and not waived by the pleadings concerning events which had occurred at an earlier point of time.
Legal Professional Privilege
The rationale of the bases for legal professional privilege over many years appears to have defied a common formulation from all judges of the High Court at any one time. Having said that, as a matter of practice, there have been a number of categories of communications which have historically been recognised as attracting legal professional privilege in relation to communications between a client and a lawyer. These categories have included the differing roles undertaken by lawyers. As far back as 1986, in Attorney-General (NT) v Maurice,[7] Deane J differentiated between communications made for the purpose of enabling or obtaining legal advice; and communications for the purpose of obtaining information necessary for actual or contemplated litigation. In addition, it has been recognised that legal practitioners may act as agents on behalf of a company in relation to a transaction, in circumstances such that the knowledge, belief and opinion of that lawyer may very well give rise to a waiver of privilege. In particular I note the observations made by Owen J in Bell Group v Westpac Banking (No. 9).[8]
[7] (1986) 161 CLR 475.
[8] Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239; (2008) 225 FLR 1, [6193]-[6194].
In this case events which arose before 28 February 2009 may arguably fit within that category of lawyer agent, and accordingly privilege may have been waived by the pleadings in some respects during the period up until 28 February 2009, but it is not necessary for me to decide that issue, and I do not.
My concern is with the period post-28 February 2009. This period falls outside the events relied upon by Ausbulk as founding liability. Further, I note the deposition made by Mr Kearney at para 7.2 of his affidavit in which he asserts legal professional privilege on the basis of anticipated and actual litigation. This form of legal professional privilege is attracted by a different role of the lawyer and a differing legal reasoning process.
The application seeks discovery of, for example, any file notes, memoranda, draft statements, or any other document created in which the legal team expressed a state of mind retrospectively as to matters which occurred at an earlier point of time. Any such documents, insofar as they exist, are claimed to have been created for the dominant purposes of litigation and this is not contested. In my view, the pleadings in which Ausbulk asserts a state of mind, does not either expressly or impliedly waive any later expression by any of the legal team as to the interpretation, belief, opinion or assumption they had at an earlier point of time of the relevant events. If such subsequently created documentation were required to be disclosed, this would fundamentally impede an ability of a party to obtain relevant information or legal advice and to either plead, prosecute or defend its legal rights. It would have a tendency to impede the ability to get proper legal advice based on candid disclosure. As McHugh J stated in Mann v Carnell,[9] litigation privilege:
arises from the need to maintain, in an adversary system of litigation, the freedom of the lawyer and client to make such investigations and inquiries and to engage in such preparation as they think fit in order to further their case … [without being required to disclose] statements, advices and other documents … to the other party who can then make use of the documents for his or her own advantage.
[9] (1999) 201 CLR 1, 36 [114].
Similar sentiments have been expressed from time to time by other judges.[10]
[10] Baker v Campbell (1983) 153 CLR 52, 95 (Wilson J); Grant v Downs (1976) 135 CLR 674, 685 (Stephen, Mason and Murphy JJ); Kennedy v Wallis (2004) 208 ALR 424, 440 (Gyles J).
Waiver
On the topic of waiver, the Court in Mann v Carnell concluded that where maintaining legal professional privilege over communications was inconsistent with the actions of the privilege holder, the privilege will be found to have been impliedly waived.
Of further particular relevance in this case, is the case of Telstra Corporation Ltd v BT Australasia Pty Ltd.[11]In that case a single Federal Court judge had refused a motion for production by discovery of documents which were the subject of claims of legal professional privilege. The issue was whether or not that privilege had been waived or otherwise lost. The single judge concluded that there had been no waiver of the privilege. The majority of the Full Court on appeal considered otherwise. The issue which arose in that case was whether the pleadings had put in issue the state of mind and knowledge of the plaintiff as to the legal effect of a deed and whether that could lead to the outcome that the relevant legal advice received by them was thereby impliedly waived. The majority consisting of Branson and Lehane JJ (at 165 and following) analysed a number of cases regarding waiver in circumstances where state of mind had been pleaded. Their Honours considered it in the context of the common law, as well as taking into account the specific provisions of s 122 of the Evidence Act 1995 (Cth).
[11] (1998) 85 FCR 152.
The pertinent observations were made over pages 166-8 and the most relevant to this discussion state as follows:
Where, as in this case, a party pleads that he or she undertook certain action "in reliance on" a particular representation made by another, he or she opens up as an element of his or her cause of action, the issue of his or her state of mind at the time that he or she undertook such action. The court will be required to determine what was the factor, or what were factors, which influenced the mind of the party so as to induce him or her to act in that way. That is, the party puts in issue in the proceeding a matter which can not fairly be assessed without examination of relevant legal advice, if any, received by that party. In such circumstances, the party, by putting in contest the issue of his or her reliance, is to be taken as having consented to the use of relevant privileged material, or to put it another way, to have waived reliance on the privilege which such material would otherwise attract.
…
Before returning to the construction of s 122(1) of the Act, some comments should be made, obvious as some of them may be, about the scope and effect of the principle just stated. It does not constitute a broad inroad into legal professional privilege as a "substantive and fundamental common law principle"
…
Nor is it a consequence of the principle that whenever a person's state of mind is relevant to an issue in proceedings, privilege is taken to be waived in relation to legal advice that may have played part in the formation of that state of mind… It is unnecessary and inappropriate, having said those things, to attempt to define exhaustively the scope of the principle. Where, however, a party relies on a cause of action, an element of which is the party's state of mind (including the quality of the party's assent to a transaction) the party is taken to have waived privilege in respect of legal advice which the party had, before or at the time of the relevant events, material to the formation of that state of mind.
[Citations omitted, emphasis added]
The last portion of this citation emphasises that the waiver operates in respect of legal advice which the party had “before or at the time of the relevant events, material to the formation of that state of mind”. There is therefore a temporal focus on the state of mind before or at the time of the relevant events.
By contrast, in this case privilege is alleged to have been waived in respect of any documents recording a state of mind which is not contemporaneous and not influential to the relevant events, but which have been created for the dominant purpose of litigation about those events. In my view, any waiver which may have arisen as a result of the pleadings, would not extend to such documentation.
Further issues
In relation to paragraph 1.12 of the application, this sub-paragraph sought all file notes, tax invoices and other documents of the solicitors in respect of a conference or meeting involving them with Mr Roff between 1 February 2009 and 31 May 2009. In view of the deposition which is contained in paragraph 7 of Mr Kearney’s affidavit, no order is required with respect to this issue. Similarly, no order is necessary in relation to paragraph 1.13 of the application as this has been satisfied by paragraphs 8 and 9 of Mr Kearney’s affidavit.
In addition, paragraph 2.3 of the application sought production for inspection of originals of all email communications, including the attachments to those emails, which are included in the Ausbulk’s lists of documents. This was stated by Ewing as applying to all documents in the lists and not simply those that were sought to be the subject of an order for disclosure in paragraph 1 of the application. Ausbulk submitted that this far exceeded what was reasonably relevant to the case. It was acknowledged that there was still an outstanding issue of one document, which is referred to as MFI P6, in respect of the various colours of ‘noted-up’ edits made by various solicitors which still required further investigation and discussion between the parties. However, this issue was restricted to that document and there was no suggestion of any other document being the subject of concern as a result of originals not being made available.
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.