Insurance Commission of Western Australia v Antony Leslie John Woodings as Liquidator of the Bell Group Ltd (in Liq) [No 6]
[2018] WASC 249
•16 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: INSURANCE COMMISSION OF WESTERN AUSTRALIA AND ANOR -v- ANTONY LESLIE JOHN WOODINGS AS LIQUIDATOR OF THE BELL GROUP LTD (IN LIQ) [No 6] [2018] WASC 249
CORAM: SMITH J
HEARD: 13 AUGUST 2018
DELIVERED : 16 AUGUST 2018
FILE NO/S: COR 108 of 1991
BETWEEN: INSURANCE COMMISSION OF WESTERN AUSTRALIA
First Applicant
JN TAYLOR HOLDINGS LTD (IN LIQ)
Second Applicant
AND
ANTONY LESLIE JOHN WOODINGS AS LIQUIDATOR OF THE BELL GROUP LTD (IN LIQ)
Respondent
Catchwords:
Inspection of documents over which privilege is asserted
Legal professional privilege - Implied waiver said to arise from matters pleaded and evidence to be led in substantive hearing - Principles considered
Confidential document subject of order by a superior court as to its confidentiality - Effect of order considered
Legislation:
Corporations Act 2001 (Cth), s 477(2A), s 477(2B), s 477(6), s 1321
Result:
Applications for inspection dismissed
Category: B
Representation:
Counsel:
| First Applicant | : | Mr D Sulan |
| Second Applicant | : | Mr J M Healy |
| Respondent | : | Mr D J Jackson SC & Mr P A Walker |
Solicitors:
| First Applicant | : | Jones Day |
| Second Applicant | : | Iles Selley |
| Respondent | : | Ashurst Australia |
Case(s) referred to in decision(s):
Archer Capital 4A Pty Ltd (as trustee for Archer Capital Trust 4A) v Sage Group plc (No 3) [2013] FCA 1160; (2013) 306 ALR 414
Austral Dutch Kaolin Pty Ltd v Hanjin P&C Co Ltd [2011] FCA 638
Chandler v Water Corporation [No 2] [2004] WASC 95
Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341
Council of New South Wales Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236
DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499
Field v Commissioner for Railways for NSW (1957) 99 CLR 285
Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
Minister for Education v Lovegrove Turf Services Pty Ltd [2004] WASCA 305
New South Wales v Betfair Pty Ltd (2009) 180 FCR 543
Osland v Secretary to the Department of Justice [2008] HCA 37; (2008) 234 CLR 275
Osland v Secretary, Department of Justice (2008) 234 CLR 275
Re The Bell Group Ltd (in liq); Ex parte Geoffery Frank Totterdell [2014] WASC 298
Re; JN Taylor Holdings Ltd (in liq) [2007] SASC 193
Rogers v Rogers (1964) 114 CLR 608
Smorgon v Australian and New Zealand Banking Group Ltd (1976) 134 CLR 475
The Adelaide Steamship Co v Spalvins (1997) 24 ACSR 536
Westpac Banking Corporation v Totterdell (1997) 142 FLR 137; (1997) 25 ACSR 769
Westpac Banking Corporation v Totterdell (1998) 20 WAR 150; (1997) 29 ACSR 448
SMITH J:
The applications - inspection of documents in COY 108A and COY 108B of 1991
The respondent to COR 108 of 1991, Antony Leslie John Woodings as liquidator of The Bell Group Ltd (in liquidation) (TBGL) makes applications to inspect certain documents from the discovery lists filed by the applicants, over which privilege is asserted in sub‑actions COY 108A of 1991 and COY 108B of 1991. In COY 108A of 1991, the applicant is the Insurance Commission of Western Australia (ICWA). In COY 108B of 1991, J N Taylor Holdings Ltd (in liquidation) (JNTH) is the applicant.[1]
[1] Annexed to this judgment is schedule A which lists the documents sought to be produced for inspection by the respondent.
The proceedings in the substantive interlocutory process in COY 108A of 1991 and COY 108B of 1991
ICWA and JNTH have made applications as creditors of TBGL under s 477(6) and s 1321 of the Corporations Act 2001 (Cth), seeking relief against what they claim is a decision by Mr Woodings in his capacity as liquidator of TBGL to re‑adjudicate a proof of debt submitted to the then liquidator of TBGL (Mr Geoffrey Frank Totterdell) on or about 2 February 1995. They each claim notice of re‑adjudication was given by letter dated 9 December 2016.
The proof of debt that is the subject of these applications is a debt admitted to be owed by TBGL to JNTH.
The proof of debt was admitted to proof in full in the winding up of TBGL by Mr Totterdell on or about 12 March 1996.
On 27 September 1996, Westpac, Commonwealth Bank of Australia and a number of other banks commenced Supreme Court of Western Australia proceedings COR 257 of 1996 seeking orders that Mr Totterdell's admission of the debt be rejected.
On 25 November 1997, Templeman J delivered judgment and rejected the banks' appeal application.[2]
[2] Westpac Banking Corporation v Totterdell (1997) 142 FLR 137; (1997) 25 ACSR 769.
On 11 November 1998, the Court of Appeal allowed the appeal against Templeman J's judgment.[3]
[3] Westpac Banking Corporation v Totterdell (1998) 20 WAR 150; (1997) 29 ACSR 448.
On 12 February 1999, JNTH applied for special leave to appeal the Court of Appeal decision to the High Court.
In 1999, the liquidator of JNTH, Mr Richard Anthony Fountayne England, and ICWA negotiated an arrangement whereby ICWA obtained a conditional beneficial interest in dividends that may be paid by TBGL in respect of the proof of debt (the 1999 Assignment).
On 3 March 2000, Mr Woodings was appointed an additional liquidator of TBGL.
In 2007, a variation to the 1999 Assignment was agreed to by JNTH and ICWA (2007 Proceeds Agreement).
On 25 May 2007, the 2007 Proceeds Agreement was approved by Debelle J in Re; JN Taylor Holdings Ltd (in liq).[4]
[4] Re; JN Taylor Holdings Limited (in liq) [2007] SASC 193.
In September 2013, a confidential settlement was reached between the parties to the main Bell proceedings (being proceedings commenced by various liquidators of Bell Group companies against the banks in the Federal Court of Australia (WAG 3067 of 1995)).
As part of the settlement, JNTH's pending High Court appeal was discontinued by consent in October 2014 (the Bank Appeal Applications).
On 21 August 2014, Mr Totterdell applied to the court for leave to resign as a joint liquidator of TBGL.[5]
[5] Re The Bell Group Ltd (in liq); Ex parte Geoffery Frank Totterdell [2014] WASC 298.
On 9 December 2016, Mr Woodings gave notice to JNTH and ICWA that he was minded to reject the proof of debt in its entirety.
ICWA seeks orders to reverse the decision of Mr Woodings and to restrain him from revoking the decision to admit the proof of debt.
JNTH seeks similar orders and claims that Mr Woodings should be estopped from re‑adjudicating, rejecting or amending the proof of debt.
ICWA alleges that it took steps and made particular decisions in reliance on a belief, opinion or assumption that Mr Woodings was of the view that the proof of debt was properly admitted by Mr Totterdell, the claim underlying the proof of debt was valid and ICWA did not have in its contemplation, or perceive there to be any risk, that Mr Woodings would seek to review, re‑adjudicate or revoke the admission of the proof of debt.[6]
[6] ICWA's particulars, filed 21 February 2017 [96], [99].
JNTH also pleads it made particular decisions in reliance of the same belief, opinion or assumption and alleges an estoppel based on the conventional basis of relationship and by representation that it claims to have arisen, on and from 13 March 1996, by reason of Mr Totterdell's admission of the proof of debt, and subsequently no later than 30 August 2000, by reason of a representation by Mr Woodings that he had adopted and agreed with the admission to proof of the debt in TBGL's liquidation.[7]
[7] JNTH's particulars, filed 4 July 2018 [80].
JNTH also relies upon promissory estoppel, a particular of which it is alleged that Mr Totterdell on and from 13 March 1996, and Mr Woodings on and from 3 March 2000, fostered an implied promise and assumption that the proof of debt had been admitted which would not be reviewed or re‑adjudicated upon in the future.[8]
[8] JNTH's particulars, filed 4 July 2018 [76] and [86].
JNTH also makes a claim of election and waiver against Mr Woodings on grounds that Mr Woodings engaged in particular conduct from 3 March 2000 with the knowledge that the proof of debt had been admitted by Mr Totterdell.[9]
[9] JNTH's particulars, filed 4 July 2018 [93].
The grounds of the applications for inspection by Mr Woodings as liquidator of TBGL
In COY 108A of 1991, Mr Woodings seeks to inspect documents over which ICWA has asserted a claim for legal professional privilege, or without prejudice privilege.
Mr Woodings concedes that ICWA, having provided affidavits of discovery and further information, has properly asserted a claim as to the existence of legal professional privilege. However, Mr Woodings claims that ICWA has impliedly waived the privilege it asserts over the documents in relation to which he seeks inspection. In particular, Mr Woodings argues that ICWA has impliedly waived the privilege over the documents by the matters put in issue in ICWA's particulars filed on 21 February 2017 and matters stated in affidavits that ICWA intends to rely upon at the final hearing of the interlocutory process.
Mr Woodings also claims that ICWA has not substantiated the existence of privilege over the documents that are the subject of claims of without prejudice privilege.
In COY 108B of 1991, Mr Woodings seeks to inspect one document over which JNTH has claimed confidentiality and to inspect a number of documents over which JNTH asserts a claim of legal professional privilege. Mr Woodings does not challenge the existence of legal professional privilege over the documents in respect of which JNTH has raised a claim of legal professional privilege. Mr Woodings, however, claims that privilege has been waived by JNTH by the matters put in issue in its particulars filed on 4 July 2018 and matters stated in affidavits that JNTH intends to rely upon at the final hearing of the interlocutory process.
Without prejudice privilege
Mr Woodings challenges ICWA's claim of 'without prejudice privilege' over the following documents:
(a)123 and 125 - memorandum of advice dated 1 July 2004 from JNTH's solicitor to Mr England (as liquidator of JNTH), a letter dated 18 August 2004 from ICWA's then managing director, Mr Evans, to one of ICWA's solicitors, Mr Edgar, enclosing a copy of document 123;
(b)134 - a letter dated 15 January 2007 from Mr Evans to Mr Smith, as a board member of ICWA;
(c)135 - an email dated 31 January 2007 from a member of JNTH's liquidator's staff to Mr Evans and Mr Wright, chairman of ICWA's board;
(d)136 - a memorandum dated 6 February 2007 from Mr Evans to ICWA's board; and
(e)137 - minutes of meetings of ICWA's board held on 7 February 2007.
Without prejudice privilege attaches to all communications which are genuine negotiations with intent to compromise an existing dispute.[10]
[10] Rogers v Rogers (1964) 114 CLR 608, 614; applied in Chandler v Water Corporation [No 2] [2004] WASC 95 [50].
The rule is not confined to admissions; it extends to all bona fide without prejudice statements which touch upon the strengths or weaknesses of the party's cases or place evaluation on a party's rights.[11]
[11] Cross on Evidence (10th ed) [25350]; applied in Chandler v Water Corporation [No 2] [2004] WASC 95 [50].
This form of privilege covers admissions by words or conduct.[12]
[12] Field v Commissioner for Railways for NSW (1957) 99 CLR 285, 291 (Dixon CJ, Webb, Kitto & Taylor JJ).
Having inspected documents 123, 125, 134, 135, 136 and 137, I am satisfied that the documents on their face and content are documents that are part of negotiations, record negotiations and decisions made to resolve a dispute.
ICWA also claims legal professional privilege over these documents. This claim of privilege is not contested by Mr Woodings who claims legal professional privilege over these documents among other documents has been waived. For reasons that follow, I am not satisfied that privilege over these documents and the other documents sought to be inspected by Mr Woodings has been waived.
Document 156 on JNTH's list of documents - subject to orders of the Supreme Court of South Australia as to its confidentiality
Document 156 on JNTH's list of documents is an affidavit of Anthony Stevens Smith. JNTH objects to producing the affidavit for inspection on grounds the document represents or refers to the substance of legal advice and is the subject of an order made by Debelle J in Re; JN Taylor Holdings Ltd (in liq)[13] on 25 May 2007.
[13] Re; JN Taylor Holdings Ltd (in liq) [2007] SASC 193.
The matter before Debelle J was an application by the liquidator of JNTH to compromise a debt pursuant to s 477(2A) and s 477(2B) of the Corporations Act 2001 (Cth). On application by the liquidator, his Honour made orders to protect the confidentiality of the agreement which included hearing the applications in closed court and making an order that the affidavit of Mr Smith be sealed up and not be available for inspection by any person except by order of the court.
The orders made by Debelle J are orders made by a superior court of record and are final and binding on all persons which includes Mr Woodings. If Mr Woodings wishes to maintain an application to inspect the affidavit of Mr Smith he is required by the terms of the order made by Debelle J to make an application to the Supreme Court of South Australia.
In the absence of any application before the Supreme Court of South Australia upon which leave has been heard, determined and granted in favour of Mr Woodings, this court must decline to make the order sought by Mr Woodings in respect of document 156.
Relevant principles that apply to waiver of legal professional privilege, at common law
The leading authority on the established principles that apply to waiver of legal professional privilege, at common law, is the decision of the plurality in Mann v Carnell.[14] In Mann v Carnell, their Honours made the following observations which are relevant to waiver of legal professional privilege:
(a)Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement.[15]
(b)It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege.[16]
(c)Waiver may be expressed or implied. Implied waiver is imputed by operation of law. Where waiver is implied from conduct the law recognises the inconsistency and determines its consequences, even though the consequences may not reflect the subjective intentions of the party who has lost the privilege.[17]
(d)What brings about (waiver by conduct) is the inconsistency which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness.[18]
[14] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 (Gleeson CJ, Gaudron, Gummow & Callinan JJ).
[15] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 [28].
[16] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 [28].
[17] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 [29].
[18] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 [29].
Judgment is to be made in the context of the circumstances of the case informed by any considerations of fairness.[19] Whether or not there has been waiver of privilege depends upon the facts of each case. Examination too closely of the facts in other cases runs the risk of transforming factual questions of judgment into inconsistent statements of principle.[20]
[19] Osland v Secretary, Department of Justice (2008) 234 CLR 275 [45] (Gleeson CJ, Gummow, Heydon & Kiefel JJ).
[20] DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499 [62]; Minister for Education v Lovegrove Turf Services Pty Ltd [2004] WASCA 305 [23] (Pullin J).
The mere reference to the existence of legal advice does not by itself constitute waiver of the privilege by the client.[21] The principles for determining implied waiver have evolved prior to, and particularly since, Mann v Carnell.[22] The judicial evolution was to a large part contributed to by the judgment of Allsop J in DSE (Holdings) Pty Ltd v Intertan Inc.[23]
[21] Minister for Education v Lovegrove Turf Services Pty Ltd [2004] WASCA 305 [24] (Pullin J); Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341 [53], [67].
[22] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1.
[23] DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499.
Some established approaches that may be taken into account in determining whether legal professional privilege has been waived arising from matters raised in a party's pleading were recently set out by the Full Court of the Federal Court in Macquarie Bank Ltd v Arup Pty Ltd in the following passages:[24]
[24] Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117 [26] ‑ [32].
The Full Court of the Federal Court applied Mann v Carnell in Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341. In that case, the Court held at [52]:
'… where issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentially that would otherwise pertain to the communication.'
As referred to by the primary judge, the Court further observed at [65]:
'As the previous examination of the authorities shows, the question is not whether the Commissioner has put his state of mind in issue but whether he has directly or indirectly put the contents of the otherwise privileged communications in issue in the litigation, either in making a claim or by way of defence. Put another way, to adapt Allsop J's language in DSE, has the Commissioner (being the privilege holder) made an assertion as part of his or her case in the litigation that lays open the privileged documents to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege?'
The correct approach was succinctly described by Yates J in Ferella & Anor v Official Trustee in Bankruptcy (2010) 188 FCR 68 at [65] in the following terms:
'… However the question is not simply whether the holder of the privilege has put that person's state of mind in issue but whether that person has directly or indirectly put the contents of the otherwise privileged communication in issue: see [Rio Tinto] at [65]. Indeed, even the fact that the holder of the privilege makes clear that the advice was relevant or contributed to a particular course of conduct would not be sufficient to waive the privilege unless, possibly, the contents of the legal advice (and not merely the fact of the advice) are specifically put in issue by relying on the contents of the advice to vindicate a claimed state of mind: [Rio Tinto] at [67].'
In determining whether there has been an implied waiver of privilege, the Court's focus will be on whether there has been conduct that is inconsistent with the maintenance of confidentiality in the communication over which privilege is asserted. An assessment of whether there has been an implied waiver will be informed by considerations of forensic unfairness.
Whilst not to be treated as a statutory formulation, in DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 ('DSE'), Allsop J (as his Honour then was) described (at [58]) an implied waiver as arising when:
'… the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication.'
As the primary judge recognised, a pleading of legal advice may be sufficient to give rise to a waiver of privilege, however a pleading is not necessary for waiver to occur. To this effect, in Hancock v Rinehart[2013] NSWSC 1978, Brereton J noted (at [22]) that the pleading in that case did not deploy or even refer to legal advice or its effect. His Honour noted that it was nonetheless open to conclude that privilege had been waived if other factors of the case warranted such a finding.
As stated in Council of the New South Wales Bar Association v Archer(2008) 72 NSWLR 236 at [48], by Hodgson JA, with whom Campbell JA agreed:
'It is not enough to bring about a waiver of client legal privilege that the client is bringing proceedings in which the content of the privileged communications could, as a reasonable possibility, be relevant and of assistance to the other party. For the client to do this is not inconsistent with the maintenance of the privilege, and does not give rise to unfairness of the type in question. What would involve inconsistency and relevant unfairness is the making of express or implied assertions about the content of the privileged communications, while at the same time seeking to maintain the privilege. In this respect, it may be sufficient that the client is making assertions about the client's state of mind, in circumstances where there were confidential communications likely to have affected that state of mind.'
(Emphasis added.)
To these approaches, it should be added that it may be sufficient for inconsistency and unfairness to arise in maintaining privilege over the content of confidential communications where express or implied assertions are made about the content of communications in circumstances where the content of the communications is likely to have affected that state of mind.[25]
[25] Council of New South Wales Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236 [48] (Hodgson JA, Campbell J & Handley AJA agreeing).
Onus
It is accepted by Mr Woodings that as the party contending that there has been a waiver of privilege he bears the onus of demonstrating waiver.[26]
[26] New South Wales v Betfair Pty Ltd (2009) 180 FCR 543 [54] (Kenny, Stone & Middleton JJ).
Mr Woodings' contentions in respect of implied waiver of legal professional privilege
The relevant steps and decisions which ICWA claims it made in reliance on a belief or assumption that the proof of debt was properly admitted and valid, and that Mr Woodings would not seek to review, re‑adjudicate or revoke the admission of the proof of debt are:
(a)entering into an agreement with JNTH in 2007 under which ICWA purchased an 'interest' in the proof of debt (2007 Proceeds Agreement);
(b)consenting to, or not opposing, the resignation of Mr Totterdell as joint liquidator of TBGL and the appointment of Mr Woodings as sole liquidator of TBGL in 2014; and
(c)directing JNTH to consent to the discontinuance of extant applications and appeals that the banks had previously brought against Mr Totterdell's original decision to admit the JNTH proof in 1996 (the Bank Appeal Applications).
JNTH claims that in reliance upon the assumption that the proof of debt would not be reviewed or re‑adjudicated, JNTH acted or admitted to act in particular ways, namely:
(a)JNTH's prior liquidator, Mr England, opposed and continued to oppose the banks' application on and after September 1996 to appeal Mr Totterdell's original decision to admit the proof of debt;
(b)Mr England did not take steps to gather evidence to support the proof of debt prior to 25 May 2004 (when he resigned and was replaced by Mr Smith), and nor did Mr Smith take steps to gather evidence to support the proof of debt after 25 May 2004; and
(c)Mr England negotiated and entered into arrangements with ICWA in 1999 for ICWA to acquire an interest in the proof of debt and Mr Smith negotiated and entered into revised arrangements with ICWA in 2007 for ICWA to acquire an interest in the proof of debt.
JNTH also allege (as does ICWA) that had Mr Smith known at the time of Mr Totterdell's resignation in August 2014 that Mr Woodings was considering reviewing the admissibility of the proof of debt, Mr Smith would have opposed Mr Totterdell's resignation. Further, JNTH claims it consented to the discontinuation of the Bank Appeal Applications, following settlement of the Bell proceedings, on the basis of Mr Smith's understanding that the proof of debt would not be reviewed or re‑adjudicated.
Mr Woodings claims in all the circumstances there is inconsistency between ICWA and JNTH advancing a positive case about their state of mind in respect of each act of reliance, and seeking to maintain confidentiality of communications which contributed, or are likely to have contributed, to ICWA's and JNTH's state of mind in taking these steps or making these decisions.
Mr Woodings claims that the inconsistencies do not arise merely because ICWA and JNTH have put their state of mind at issue, and because privilege communications may be relevant to it.
Mr Woodings argues:
(a)the decisions made in reliance on certain beliefs are a central part of ICWA's and JNTH's cases;
(b)the relevant beliefs are pleaded to have been raised, in part, on matters that are likely to have been the subject of legal advice;
(c)the decisions themselves required judgments as to legal risk and legal consequences that are likely to have been the subject of legal advice;
(d)there is legal advice that influenced the decisions, as is disclosed by ICWA's and JNTH's discovery lists which were served in compliance with an order requiring documents which record or evidence ICWA's and JNTH's reasons for making the relevant decisions and/or ICWA's and JNTH's views on prospects of the proof of debt being reconsidered; and
(e)ICWA and JNTH intend to rely upon affidavit evidence which makes various assertions as to their officer's states of mind with respect to the relevant acts of reliance.
Mr Woodings claims in these circumstances ICWA and JNTH implicitly assert, by their pleadings and in their evidence, that the communications over which it claims legal professional privilege:
(a)first, did not give them reason to think that Mr Woodings might review the proof of debt; and
(b)second, do not set out reasons which would have led ICWA or JNTH to make the decisions regardless of any concerns about the proof of debt.
By making these implied assertions, Mr Woodings claims ICWA and JNTH are necessarily laying the confidential communications open to scrutiny. It is also said that there is unfairness to Mr Woodings in permitting ICWA's and JNTH's cases to proceed without requiring disclosure of the communications. This is said to give rise to a waiver of privilege over each of the documents sought.
The affidavits filed by ICWA in support of its claims include an affidavit of Michael Edward Wright who served as the Chairman of the Board of ICWA from 27 June 1994 to 2014 and an affidavit of Bruce Hillary Meredith who is the general counsel of ICWA. Mr Meredith was employed by ICWA from 20 May 1991 until 31 March 1994, re-joined ICWA in about March 2011 and has continued to be employed by ICWA since that time.
Mr Woodings makes a submission that the affidavits of Mr Wright and Mr Meredith contain passages which make positive assertions as to the state of mind of each deponent in relation to the acts of reliance pleaded by ICWA.
In particular, Mr Woodings points out that in connection with ICWA's decision to enter into the 2007 Proceeds Agreement, Mr Wright deposes that he (along with the then managing director, Victor Evans) negotiated the assignment agreement and that, following the negotiation he recommended the agreement to ICWA's board. Mr Wright also deposes that he did not contemplate that Mr Woodings might review or re‑adjudicate the proof of debt and says that if he had contemplated that risk, he would have insisted that ICWA takes certain steps to gather evidence and, depending on the outcome of those steps, he would not have agreed to support the recommendation that the board of ICWA approve the 2007 Proceeds Agreement.
Mr Meredith deposes to certain matters in connection with ICWA's decision in August 2014 not to oppose the resignation of Mr Totterdell as liquidator of TBGL and to support the appointment of Mr Woodings as sole replacement liquidator. Mr Meredith also deposes that on 15 August 2014 he instructed the State Solicitor's Office (SSO) not to oppose the orders sought by Mr Woodings with respect to Mr Totterdell's resignation and this was a decision by him (in conjunction with ICWA's CEO) and had he known that a review of the proof of debt would occur he would have instructed the SSO to oppose Mr Woodings' appointment as sole liquidator of TBGL unless an assurance was given that the proof of debt would not be reviewed.
Mr Meredith also deposes that:
(a)the banks and Mr Woodings had agreed to discontinue the Bank Appeal Applications (in which the TBGL's liquidators' decision to admit the proof of debt was an issue) and no issue had been raised by Mr Woodings and Mr Totterdell at that time they believed that the decision to admit the proof of debt was wrong, required review or would be re‑adjudicated; and
(b)on his instructions the SSO provided instructions that ICWA was to discontinue the three proceedings constituting the Bank Appeal Applications (which included related appeals to the Full Court and the High Court of Australia).
Mr Woodings claims that by advancing Mr Wright's and Mr Meredith's evidence about the views they had, ICWA implicitly asserts that there is nothing in the confidential communications when making the decisions (to enter into the 2007 Proceeds Agreement, not to oppose the orders sought by Mr Woodings with respect to Mr Totterdell's resignation in 2014, and to discontinue the Bank Appeal Applications) which would contradict or qualify the asserted states of mind. That is said to include an implicit assertion that there was nothing in the communications indicating that ICWA would have performed the relevant acts of reliance irrespective of the asserted belief or assumption about review of the proof of debt. By pleading the case and relying upon this evidence, Mr Woodings claims ICWA has necessarily laid the confidential communications open to scrutiny.
Mr Woodings points out in passages of the affidavits of Mr Smith and Mr England positive assertions are made as to the state of mind of JNTH in relation to certain acts of reliance.
Mr England deposes that prior to 1996 JNTH had paid for Mr Totterdell's adjudication of the proof of debt and that if he had known of the possibility that the proof might be reviewed by Mr Totterdell, or Mr Woodings, he would have sought legal advice as to whether the course intended by Messrs Totterdell and Woodings as joint liquidators of TBGL was open to them.
Mr England also deposes he relied upon Mr Totterdell's unconditional admission of the proof of debt, his application to appeal his rejection of TBGL's proof of debt, and Mr Woodings' subsequent pleading amendment application to the Main Bell proceedings, in determining it was not necessary for him to obtain any further evidence to support the proof of debt when he made the decision to assign the proof of debt to ICWA (in 2000).
Regarding the situation after 2004, Mr Woodings points out that Mr Smith deposes that had he known that there might be a review of the proof of debt, he would have sought to understand the reasons and 'ascertain what facts and/or issues were the subject of any misgivings' so that he could attempt to secure evidence to answer them.
When it comes to the renegotiation of the 2007 Proceeds Agreement with ICWA, Mr Smith deposes in some detail as to the reasons behind and his views about that agreement. Mr Smith states that the potential for the proof of debt to be reviewed did not enter his mind during these negotiations and was not discussed with ICWA.
Having chosen to lead positive evidence about these matters, Mr Woodings claims that JNTH should not be allowed to prevent him from obtaining access to the confidential communications with solicitors that bear on these matters so that each issue of reliance can be fairly tested.
Has ICWA or JNTH impliedly waived their right to maintain legal professional privilege?
Having regard to the nature of legal professional privilege, it is not a right that should be lightly abrogated. Privilege is fundamental to the due administration of justice.[27] It has been characterised as a substantive right, and, accordingly, a finding of waiver should not be lightly made.[28]
[27] Smorgon v Australian and New Zealand Banking Group Ltd (1976) 134 CLR 475, 488 (Stephen J).
[28] The Adelaide Steamship Co v Spalvins (1997) 24 ACSR 536, 549 (O'Loughlin J).
It is not to the point that the privileged communications could be relevant and of great assistance to the party who is seeking to inspect the privileged communications.
The first question to be determined is whether an inconsistency arises between the maintenance of privilege and reliance on the privileged information as a basis of the formation of the requisite opinions and beliefs of ICWA and JNTH.
By order made by Pritchard J on 15 December 2017, ICWA was required to and did provide discovery of the following categories of documents:
Category 1: Documents which record or evidence any reason or matters taken into account by ICWA (including any representative of ICWA) in deciding whether or not to:
(i)enter into any purchase, assignment, or transfer of the JNTH proof (including the arrangements ICWA entered into with JNTH in 1999/2000 and 2007 in respect of the JNTH proof), which documents were created between 1 June 1999 and 31 August 2007 (inclusive);
(ii)consent to or oppose the resignation of Mr Totterdell as joint liquidator and/or the appointment of Mr Woodings as sole liquidator of TBGL, which documents were created between 3 September 1999 to 3 March 2000 (inclusive), or between 17 May 2013 and 31 August 2014 (inclusive);
(iii)direct JNTH to consent to the discontinuance of the bank appeal applications, which documents were created between 21 April 2014 and 31 October 2014 (inclusive);
with such discovery to be subject to the searches as agreed between the parties on 6 December 2017 in respect of such documents that are maintained electronically.
By order made by Pritchard J on 13 December 2017, JNTH was required to, and did provide discovery of the following category 2 and 3 documents:
Category 2: Documents created after 3 March 2000 and before 19 November 2001 constituting or recording communications between JNTH and one or more of the plaintiffs to the Main Bell Proceedings (including communications between any representative of JNTH or any one or more of the plaintiffs) concerning the Amendment Application.
Category 3: Documents which record or evidence any reason or consideration taken into account by JNTH in deciding whether or not to:
(i)oppose, and to continue to oppose from time to time, the bank appeal applications, and to agree to stay those applications, which documents were created between 27 September 1996 and 30 July 1999;
(ii)gather any, or any particular, evidence in support of the JNTH proof, which documents were created between 27 September 1996 and 9 December 2016;
(iii)enter into any purchase, assignment, or transfer of the JNTH proof (including the arrangements entered into with ICWA in 1999/2000 and 2007 in respect of the JNTH proof), which documents were created between 1 June 1999 and 31 August 2007 (inclusive);
(iv)consent to or oppose, or take any other position in respect of, the resignation of Mr Totterdell as joint liquidator and/or the appointment of Mr Woodings as sole liquidator of TBGL, which documents were created between 3 September 1999 to 3 March 2000 (inclusive), or between 17 May 2013 and 31 August 2014 (inclusive).
(v)consent to the discontinuance of the bank appeal applications, which documents were created between 21 April 2014 and 31 October 2014 (inclusive).
Compliance with the discovery request made by Mr Woodings does not of itself amount to inconsistent conduct or waiver. Every case involving a claim for privilege will necessarily involve some element of legal advice and discovery of privileged documents. This follows from the fact that privilege has been claimed.
Whether disclosure of legal advice is inconsistent with maintaining confidentiality will not only depend upon the circumstances of a case but, and of particular importance in the determination of these applications in this matter, questions of waiver are matters of fact and degree.[29]
[29] Osland v Secretary to the Department of Justice [2008] HCA 37; (2008) 234 CLR 275 [49] (Gleeson CJ, Gummow, Heydon & Kiefel JJ).
An opinion, belief or assumption that the veracity of the proof of debt had been settled and would not be re‑examined is a belief, opinion or assumption pleaded by both ICWA and JNTH which is said to arise as a result of representations and conduct of both liquidators of TBGL and is not pleaded by either ICWA or JNTH as an opinion, belief or assumption formed on the basis of any advice or lack of advice from legal advisors. Nor is the opinion, belief or assumption in either case pleaded to have been formed to be connected to, in any way by the provision of legal advice or through privileged communications.
Thus, it cannot be said that the question of reliance on the belief, opinion or assumption as pleaded must have been informed or addressed by legal advice that either ICWA or JNTH received.
Whilst it may be accepted that the pleaded cases by ICWA and JNTH put in issue their state of mind at the time they each relied on the conduct of Mr Totterdell and Mr Woodings, the acts and decisions they plead as acts taken in reliance of the belief, opinion or assumption importantly do not rely upon an understanding of the legal effect of their opinion, belief or assumption that the liquidators would not at any time after 1996 call into question the proof of debt. Nor does it appear from the pleadings that ICWA or JNTH have received any legal advice that affected the formation of this opinion, belief or assumption at any material time.
At the heart of Mr Woodings' argument is the contention that the acts of reliance pleaded by ICWA and JNTH raises an inconsistency with the legal advice that ICWA and JNTH received going to the decisions of why they did or did not do such acts of reliance (such as not opposing the orders sought by Mr Woodings when Mr Totterdell resigned). It appears that the grounds upon which an inconsistency is said to arise is that Mr Woodings should, as a matter of fairness, be entitled to test whether (in light of the legal advice) the acts of reliance pleaded could, or would have, been undertaken irrespective of any beliefs, opinions or assumptions induced by the liquidators of TBGL.
Put another way, it is contended by Mr Woodings the matters pleaded and the relevant matters stated by the deponents in the affidavits as to the beliefs and opinions of ICWA and JNTH opens to scrutiny the legal advice about why and whether to do the acts of reliance in question at the material time the decisions were made.
However, the fact that such legal advice and other confidential privileged communications may be relevant to, and of assistance to, the defence of Mr Woodings as liquidator of TBGL to the applications by ICWA and JNTH does not raise an inconsistency with the privileged communications or render it unfair not to disclose the privileged communications.
The fact that ICWA and JNTH plead that they took, or did not take, particular steps in relation to which they received legal advice that they would not have taken, or would have taken, had they not formed the erroneous opinion, belief or assumption does not elevate any legal advice they may have received about the steps that they subsequently took, or did not take, to be an issue of the kind which results in a waiver of the privilege. In particular, legal advice is not relied upon or impliedly or expressly pleaded to play any part to support the claimed state of mind by either ICWA or JNTH about the intentions of Mr Totterdell or Mr Woodings in respect of the proof of debt.
The legal advice to which Mr Woodings seeks to inspect is too remotely connected (if connected at all) to the formation of the requisite belief, opinion or assumption about the intentions of Mr Totterdell and Mr Woodings in respect of the admission of the proof of debt. That is, there is an insufficient connection to put the privileged communications in issue, thus an inconsistency between the privilege and the pleaded conduct does not arise. Nor is it necessary in these circumstances to consider any issue going to unfairness to TBGL.
Just because subsequent action undertaken by ICWA and JNTH on reliance are pleaded and legal advice was given (or was likely to have been given) as to whether such steps should or should not be taken at the relevant time, does not elevate the legal advice to be an issue of a particular character that establishes reliance by ICWA or JNTH on the representations made by the liquidators of TBGL.
As the Full Court in Commissioner of Taxation v Rio Tinto Ltd pointed out, it is questionable whether advice can properly be said to be in issue in a proceeding (for the purposes of determining waiver of privilege) merely because it is relevant to an issue in it.[30]
[30] Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341 [53].
Importantly, the state of mind put in issue by ICWA and JNTH about the intentions of Mr Woodings is not expressly or impliedly pleaded as material facts that arose as a result of reliance upon a privileged communication.
In Austral Dutch Kaolin Pty Ltd v Hanjin P&C Co Ltd, Greenwood J observed:[31]
Since the governing principle is one of inconsistency of conduct relevantly informed by considerations of fairness, then the question on the facts becomes whether the conduct of simply pleading a cause of action in which reliance is in issue, is conduct inconsistent with the maintenance of the confidentiality. As legal professional privilege is an important common law right or common law immunity (Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [11], [44] McHugh J, [85] Kirby J; Baker v Campbell (1983) 153 CLR 52 at 74) and common law principles apply to these interlocutory questions (Mann v Carnell at [27], [41], [143] and [144]), a party ought not to be denied that right as a result of an implied construct simply by pleading a claim to a remedial right based upon a cause of action in which a state of mind is put in issue unless the party expressly pleads reliance upon a privileged communication as a material fact (or particularises a material fact by reference to an otherwise privileged communication) or the very nature of the claim itself demonstrates clear inconsistency of treatment such as where a client sues his or her lawyer for negligence asserting a sequence of instructions and at the same time seeks to deny, on the ground of legal professional privilege, the disclosure by his or her lawyer of those communications in the forensic analytical process.
[31] Austral Dutch Kaolin Pty Ltd v Hanjin P&C Co Ltd [2011] FCA 638 [22]; applied by Wigney J in Archer Capital 4A Pty Ltd (as trustee for Archer Capital Trust 4A) v Sage Group plc (No 3) [2013] FCA 1160; (2013) 306 ALR 414 [25].
Also of importance is the fact that neither ICWA nor JNTH have pleaded reliance on any legal advice or the existence of any legal advice about the effect of the admission of the proof of debt subsequent to its formal admission by Mr Totterdell in March 1996. Rather, they have pleaded that they relied on the existence of a factual state of affairs. Consequently, there is no necessary connection between the matters that ICWA or JNTH has raised and the material over which it is claimed privilege.
Assertions regarding the state of mind of ICWA and JNTH at the material times when they engaged in confidential communications with their lawyers cannot reasonably be taken as amounting to a waiver of privilege of all legal advices that JNTH received (between 13 March 1996 up until the receipt of the 2016 notice) which may be bound up with legal advice going to other issues. Critically, the sworn evidence of both JNTH liquidators and Mr Wright and Mr Meredith (on behalf of ICWA) is that during this period the prospect that Mr Woodings might re‑adjudicate the proof of debt never once entered into their minds. It is this state of belief, one of ignorance, that is the foundation for the reliance contention and material state of mind by JNTH and ICWA.
It cannot assist Mr Woodings to point to the fact that legal advices were received by JNTH's liquidators in the context of decisions which they now say that they may not have made were they not to have been ignorant as to Mr Woodings' intentions to re‑adjudicate the proof of debt. Those advices do not go to the reasonableness of the relevant belief, opinion or assumption, nor do they bear upon that belief, opinion or assumption.
The nature of the claims made by ICWA and JNTH do not rely upon legal advice in forming any pleaded view of Mr Woodings' intentions. In these circumstances, the claims for relief made by ICWA and JNTH cannot be said to arise out of legal advice given by a lawyer or instructions given to a lawyer. Nor can it be necessarily inferred that any legal advice received would or might raise doubts about the beliefs, opinions or assumptions about Mr Woodings' intentions or reliance on those beliefs, opinions or assumptions.
For these reasons, I am not satisfied that either ICWA or JNTH have waived legal professional privilege in respect of the documents that Mr Woodings seeks to inspect for which a claim for legal professional privilege has been made.
The applications made by Mr Woodings for inspection of documents in COY 108A of 1991 and COY 108B of 1991 should be dismissed.
Schedule A
COY 108A of 1991 - Documents sought to be inspected from the Insurance Commission of Western Australia's draft list of documents dated 26 April 2018
No.
Date
Description of document
CLAIM THAT LEGAL PROFESSIONAL PRIVILEGE HAS BEEN WAIVED
65.
1/10/1999
Facsimile of P Edgar to V Evans and M Wright
Attached draft report of Edgar & Co to the Solicitor General dated October 1999
66.
1/10/1999
Draft report of Edgar & Co to the Solicitor General dated October 1999
67.
4/10/1999
Draft letter of K McAullay to R Meadows
77.
19/11/1999
Facsimile of P Edgar to V Evans and M Wright
Attached Edgar & Co internal memorandum of C Bailey to P Edgar dated 18 November 1999
78.
29/11/1999
Draft facsimile of P Edgar to J Karas
79.
30/11/1999
Draft facsimile of P Edgar to G Trevor and M Hoffmann
80.
30/11/1999
Draft facsimile of P Edgar to G Trevor and M Hoffmann
81.
30/11/1999
Facsimile of P Edgar to V Evans and M Wright
Attached draft facsimile of P Edgar to G Trevor and M Hoffmann dated 30 November 1999
Attached Edgar & Co internal memorandum of C Bailey to P Edgar dated 30 November 1999
Attached extract from confidential agreement
82.
30/11/1999
Facsimile of P Edgar to V Evans and M Wright
Attached draft facsimile of P Edgar to G Trevor and M Hoffmann dated 30 November 1999
Attached Edgar & Co internal memorandum of C Bailey to P Edgar dated 30 November 1999
Attached extract from confidential agreement
83.
30/11/1999
Draft Facsimile of P Edgar to V Evans and M Wright
86.
3/12/1999
Facsimile of K McAullay to V Evans
Attached facsimile of P Edgar to the Commissioners of ICWA's Board dated 3 December 1999
Attached letter of M Hoffmann to P Edgar dated 3 December 1999
Attached draft facsimile of P Edgar to M Hoffmann dated 3 December 1999
Attached note regarding legal costs
Attached draft facsimile of P Edgar to M Hoffmann dated 3 December 1999
87.
3/12/1999
File note by P Edgar of telephone conversation with M Hoffmann
88.
3/12/1999
Facsimile of P Edgar to M Hoffmann
89.
3/12/1999
Draft minutes and agenda of meeting of ICWA Board of Commissioners circulated to P Edgar
90.
3/12/1999
Draft facsimile of P Edgar to V Evans and M Wright
Attached draft facsimile of P Edgar to M Hoffmann dated 3 December 1999
Attached draft facsimile of P Edgar to M Hoffmann dated 3 December 1999
91.
3/12/1999
Draft minutes of meeting of ICWA Board of Commissioners facsimiled from P Edgar to V Evans
92.
3/12/1999
Facsimile of P Edgar to ICWA Commissioners
Attached letter of M Hoffmann to P Edgar dated 3 December 1999
93.
3/12/1999
Draft facsimile of P Edgar to M Hoffmann
94.
3/12/1999
Draft facsimile of P Edgar to ICWA Board of Commissioners
Attached draft letter of P Edgar to M Hoffmann dated 3 December 1999
Attached draft letter of P Edgar to M Hoffmann dated 3 December 1999
95.
3/12/1999
Facsimile of M Hoffmann to P Edgar
Attached letter of M Hoffmann to P Edgar dated 3 December 1999 marked
98.
6/12/1999
Facsimile of P Edgar to V Evans
Attached newspaper articles dated 2 December 1999
Attached file note of P Edgar of telephone conversation with M Wright dated 3 December 1999
Attached file note of P Edgar of telephone conversation with M Hoffman dated 3 December 1999
Attached file note of C Bailey of telephone conversation between P Edgar, M Wright and M Hoffmann dated 3 December 1999
Attached facsimile of M Hoffmann to P Edgar dated 3 December 1999
Attached draft facsimile of M Hoffmann to Hunt & Humphry dated 3 December 1999
102.
24/12/1999
Facsimile of P Edgar to V Evans and M Wright
Attached letter of M Hoffmann to P Edgar dated 3 December 1999
Attached draft facsimile of P Edgar to M Hoffmann dated 24 December 1999
Attached facsimile of M Hoffmann to P Edgar dated 3 December 1999
Attached file note of P Edgar of telephone conversation with M Hoffmann dated 3 December 1999
104.
12/01/2000
Facsimile of P Edgar to M Hoffmann and J Karas
109.
27/01/2000
File note by P Edgar of telephone conversation with M Hoffmann
111.
1/02/2000
Facsimile of P Edgar to V Evans and M Wright
Attached draft report to ICWA Board of Commissioners
120.
10/10/2000
Draft chronology regarding purchase of JNTH Proof
121.
10/10/2000
Draft chronology regarding purchase of JNTH Proof
122.
18/05/2004
Letter of advice of P Edgar to V Evans
123.*
1/07/2004
Memorandum of advice of J Karas to R England, copying A Smith
124.
18/08/2004
Draft chronology regarding purchase of JNTH Proof
125.*
18/08/2004
Letter of V Evans to P Edgar
Attached letter of R England to V Evans and M Wright dated 8 July 2004 and enclosed memorandum of advice of J Karas to R England dated 1 July 2004
126.
4/11/2004
Facsimile of P Edgar to V Evans and M Wright
Attached letter of Edgar & Co to K Thompson dated 1 October 2004
Draft letters of V Evans to R England dated 4 November 2004
128.
27/12/2006
Email of P Edgar to M Wright and V Evans
Attached facsimile of M Hoffmann to P Edgar dated 3 December 1999
Attached facsimile of P Edgar to M Hoffmann dated 1 February 2000
Attached draft letter to A Smith dated 18 December 2006
129.
27/12/2006
Email of C Bailey to P Edgar
Attached draft letter to A Smith 18 December 2006
Attached facsimile of M Hoffmann to P Edgar dated 3 December 1999
Attached facsimile of P Edgar to M Hoffmann dated 1 February 2000
130.
27/12/2006
Email of P Edgar to C Bailey
Attached draft letter to A Smith (undated)
131.
27/12/2006
Draft letter of V Evans to A Smith
132.
11/01/2007
Email of V Evans to P Edgar
Attached draft letter of V Evans to A Smith dated 15 January 2007
133.
12/01/2007
Email of V Evans to M Wright
Attached draft letters of V Evans to A Smith dated 15 January 2007
134.*
15/01/2007
Letter of V Evans to A Smith
135.*
31/01/2007
Email of P Goh to V Evans and M Wright
Attached letter of advice of J Karas to A Smith dated 29 January 2007
136.*
6/02/2007
Memorandum of V Evans to ICWA Board of Commissioners
137.*
7/02/2007
Minutes of meeting of ICWA Board of Commissioners
138.
23/07/2010
Report of Edgar & Co to ICWA's Board of Commissioners
Attached schedule of categories of work and distribution projects
Attached comparative costs table
Attached letters of A Woodings to G Morgan dated 19 May 2010 and G McLellan to A Wharton dated 4 June 2010
Attached table of questions and answers regarding proposed structure of ICWA Law
Attached recommendations in respect of currently retained personnel
Attached draft HR structure
Attached draft agenda template
Attached document processing list of tasks
Attached list of tasks list of establishment of ICWA Law
139.
22/10/2012
Email of B Meredith to A Hamersley
Attached email of B Meredith to P Edgar dated 19 October 2012
Attached fragment of draft briefing note to ICWA Board of Commissioners
140.
23/10/2012
Email of B Meredith to P Edgar, copying A Hamersley and C Bailey
Attached draft briefing documents regarding JNTH Proof
141.
24/10/2012
Minutes of Meeting of the ICWA Law Management Committee
142.
29/10/2012
Email of B Meredith to A Hamersley
Attached draft briefing note regarding JNTH Proof
143.
30/10/2012
Email of B Meredith to P Edgar, copying A Hamersley
Attached draft briefing notes regarding JNTH Proof
144.
30/10/2012
Email of B Meredith to A Hamersley
Attached draft briefing notes regarding JNTH Proof
145.
20/11/2012
Email of A Hamersley to B Meredith
Attached briefing notes regarding JNTH Proof
146.
8/01/2013
Email of A Hamersley to B Meredith
147.
29/01/2013
Email of A Hamersley to B Meredith
Attached review of resourcing requirements regarding JNTH Proof
Attached slide from PowerPoint to ICWA Board of Commissioners
148.
16/02/2013
Draft report to ICWA Law from M Wright regarding purchase of JNTH Proof
160.
22/10/2013
Email of A Hamersley to C Bailey
Attached Bell key issues summary
Attached observations to counsel dated 15 October 2013
162.
15/11/2013
Draft note of legal advice of SSO
165.
3/12/2013
Draft letter of advice of A Sefton to B Meredith and A Hamersley
168.
4/12/2013
Draft letter of advice of A Sefton to B Meredith and A Hamersley
170.
9/12/2013
Email of A Sefton to B Meredith, copying A Hamersley and C Bailey
Attached letter of advice of A Sefton to B Meredith and A Hamersley, dated 9 December 2013
Attached draft letter of A Sefton to A Chai, dated 9 December 2013
Attached letter of A Chai and L Lee to A Sefton and M Elliott dated 2 December 2013
172.
9/12/2013
Draft letter of advice of A Sefton to B Meredith and A Hamersley
173.
9/12/2013
Letter of advice of A Sefton to B Meredith and A Hamersley
175.
2014
Notes of D Van Nellestijn regarding resignation of G Totterdell
176.
8/01/2014
File note of M Elliott of meeting of P Evans, M Elliott and R Whithear
192.
8/07/2014
Email of P Edgar to B Meredith and A Hamersley, copying C Bailey and ICWA Legal Services
193.
18/07/2014
Email of A Hamersley to P Evans, copying B Meredith, C Bailey, A Sefton, D Hargreaves, M Elliott and ICWA Legal Services
Attached letter of G Totterdell to R Haselgrove dated 21 June 2005 with enclosed letter of G Totterdell to R Haselgrove, M Dunn and P Edgar dated 6 December 2001
197.
28/07/2014
Email of P Evans to R Whithear, copying ICWA Legal Services
Letter of advice of P Evans to R Whithear dated 28 July 2014
198.
30/07/2014
Email of B Meredith to D Hargreaves, copying A Sefton, M Elliott, A Hamersley, C Bailey and ICWA Legal Services
Attached letter of advice of M Lishman to P Edgar, copying V Evans, dated 30 January 2009
199.
30/07/2014
Email of D Hargreaves to B Meredith, copying A Hamersley, A Sefton, C Bailey, ICWA Legal Services, M Elliott and P Evans
Attached letter of advice of M Lishman to P Edgar, copying V Evans, dated 30 January 2009
210.
5/09/2014
Email of D Van Nellestijn to R Whithear, copying B Meredith, A Hamersley, C Bailey, P Evans, A Sefton, D Hargreaves and M Elliott
Attached letter of advice of D Hargreaves to R Whithear dated 5 September 2014
214.
22/09/2014
Email of D Hargreaves to B Meredith, A Hamersley and C Bailey, copying P Evans, A Sefton, M Elliott and D Van Nellestijn
Attached draft Form 550 Authority to Liquidator to Pay Dividend to a Person Named
*Without prejudice privilege was also claimed over these documents.
COY 108B of 1991 - Documents sought to be inspected from JN Taylor Holdings's list of documents dated 22 December 2017
No.
Date
Description of document
LEGAL PROFESSIONAL PRIVILEGE
8.
9/09/2014
Email from Ping Goh to David Cross
12.
12/09/2014
Email from David Cross to Ping Goh and Tony Smith
65.
31/05/1996
Letter from Fisher Jeffries to RAF England
68.
21/04/1998
Facsimile transmission from Fisher Jeffries to Ernst & Young with handwritten annotations
69.
19/05/1998
Ernst & Young internal memorandum with attached legal advice
70.
19/05/1998
Letter from Fisher Jeffries to RAF England with attachments
71.
2/11/1998
Letter from Fisher Jeffries to RAF England with attachments
72.
11/11/1998
Email from D Mehgher QC to Fisher Jeffries with attached Advice
73.
13/11/1998
Letter from Fisher Jeffries to RAF England with multiple attachments
79.
8/03/1999
Handwritten notes of meeting between solicitors and Richard England and staff of the Liquidator
81.
13/04/1999
Letter from Fisher Jeffries to Richard England
84.
15/04/1999
Letter from Richard England to Fisher Jeffries
92.
19/07/1999
Facsimile transmission from Jason Karas to Richard England
104.
16/10/1996
Letter from Fisher Jeffries to RAF England
116.
2/12/1999
Facsimile transmission from Fisher Jeffries to Richard England enclosing draft without prejudice letter to Edgar & Co
118.
3/12/1999
Facsimile transmission from Fisher Jeffries to RAF England enclosing draft letters
119.
3/12/1999
Handwritten note of telephone attendance on Mark Hoffmann
125.
6/12/1999
Handwritten note of telephone attendance on Mark Hoffmann
135.
14/06/2000
JNTH Committee of Inspection Report
144.
6/10/2006
Report to JNTH Committee of Inspection
150.
29/01/2007
Email exchanges between Ping-Ping Goh and Jason Karas
151.
29/01/2007
Email exchanges between Ping-Ping Goh and Jason Karas
155.
7/03/2007
Report to JNTH Committee of Inspection
157.
8/05/2007
Report to JNTH Committee of Inspection
190.
4/07/2014
Email from David Cross to Ping-Ping Goh
207.
11/09/2014
Letter from Lipman Karas to Tony Smith
CONFIDENTIALITY AS BASED ON COURT ORDER
156.
30/04/2007
Confidential Affidavit of Anthony Stevens Smith
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
ASSOCIATE TO THE HONOURABLE JUSTICE SMITH16 AUGUST 2018
3
28
1