McConnell Dowell Constructors (Aust) Pty Ltd v BHP Billiton Petroleum (Victoria) Pty Ltd & Ors

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT

No. 4915 of 2004

McCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD	Plaintiff
v
BHP BILLITON PETROLEUM (VICTORIA) PTY LTD & ORS	Defendants

---

JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2007, 6 August 2007
DATE OF JUDGMENT:	8 August 2007
MEDIUM NEUTRAL CITATION:	[2007] VSC 292

---

Evidence – Privilege – Legal professional privilege – Whether claim for privilege made out

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J J Gleeson	Deacons
For the First and Third Defendants	Mr T J Margetts SC with Mr J Geale	Allens Arthur Robinson

HER HONOUR:

By notice of appeal dated 24 July 2007, the plaintiff, McConnell Dowell, appeals against orders made by a Master on 19 July 2007, on the hearing of McConnell Dowell's application for the production of documents by the first and third defendants (who I will refer to as the BHP parties). The BHP parties claimed legal professional privilege in respect of those documents.

On that occasion, the Master made orders requiring the BHP parties to produce some of the documents sought. In relation to the remaining documents, she said that she was satisfied as to the BHP parties’ claim for privilege over the documents referred to in the affidavit of Craig Anthony Straughan, sworn 12 July 2007. McConnell Dowell appeals against that order insofar as it relates to the documents referred to in paragraphs 31, 32, 38, 40, 52, 53, 58, 60, 64, 66, 68, 69, 71, 72, 82, 84 and 87 of the Straughan affidavit of 12 July.

This proceeding was issued in March 2004. The trial has been set down to commence on 27 August 2007 before Byrne J, and is expected to run for many months.

Given the large volume of documents to be discovered in this proceeding (more than half a million documents in relation to the BHP parties alone) traditional methods of discovery were regarded as inappropriate. Accordingly, in November 2005 the parties agreed to a protocol that each party would follow for making discovery of hard copy and electronic documents. Amongst other things, the protocol established how documents were to be described and, in the case of electronic documents, how that description was to be extracted.

Craig Straughan is and was at all relevant times employed as corporate counsel to the BHP group of companies, including the BHP parties. On 16 August 2006, Mr Straughan swore an affidavit of documents, which included the documents the subject of this appeal. Part 2 of Schedule 1 of that affidavit described, but did not list individually, documents which the BHP parties objected to produce on the basis of a claim of legal professional privilege. There seems to be no dispute that that affidavit complied with the protocol.

On 24 August 2006, McConnell Dowell requested that the BHP parties provide a list of the specific documents enumerated in Part 2 of Schedule 1. Nothing in the protocol precluded a party from requesting further information about documents the subject of a claim to legal professional privilege.

On 5 October 2006, the BHP parties provided McConnell Dowell with an itemised list of privileged documents. In addition to that itemised list, the BHP parties have also provided in relation to the documents the subject of this appeal:

(1)The grounds of privilege upon which they rely in respect of each document, in a document provided on 21 May 2007; and
(2) A more detailed description of each document, including in the Straughan affidavit of 12 July.

This appeal first came on before me in the Practice Court on 31 July 2007. Given that the original hearing before the Master had occurred over three days, albeit over a larger number of documents, I had concerns about the extent to which the appeal could be dealt with in the Practice Court. However, at the urging of counsel, I commenced hearing argument limited to the question of whether the court should at least inspect the documents for the purpose of assessing the claim for privilege. That is because the Master had declined to inspect the documents the subject of the appeal, although she had inspected a large number of other disputed documents.

During the course of hearing submissions on 31 July, I made a number of preliminary observations about apparent inadequacies in the Straughan affidavit of 12 July. As it was apparent that the matter would take more time to argue then could be provided in the Practice Court that day, and given both my observations as to the apparent evidentiary deficiencies and the impending trial date, I adjourned the appeal until 6 August for full argument before me.

In the meantime, the BHP parties prepared a further affidavit of Craig Straughan, dated 3 August 2007. The primary purpose of that affidavit was for Mr Straughan to depose that he had inspected each of the documents in dispute, and to confirm that the contents of the spreadsheet, which was Exhibit CAS14, were true and accurate.

The BHP parties required special leave to rely on further affidavit material on an appeal from a Master. After discussions between them, the parties agreed that special leave be given to the BHP parties to rely on the 3 August affidavit. In return, the BHP parties agreed that I would inspect the disputed documents in order to consider the privilege claim. This was a sensible position for both parties to adopt and substantially narrowed the scope of the appeal.

It is therefore not necessary for me to consider questions as to the independence of Mr Straughan, or as to the applicability in this case of the procedure considered by Gillard J in Australian Hospital Care (Pindara) Pty Ltd v Duggan (No. 2).[1] Suffice to say that I do not read the comments of Gillard J in that case as removing the need for a party who claims privilege to put forward sufficient material to establish a prima facie claim to privilege.
[1][1999] VSC 131.

It is well established that a claim for privilege may be established either by evidence, or by having regard to the nature or character of the document themselves. In Grant v Downs[2] the majority of the High Court said that:

It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual.[3]

[2](1976) 135 CLR 674.

[3]Ibid at 689.

The affidavits sworn by Mr Straughan in this case, in particular the affidavit of 12 July which was before the Master, do not in my opinion go far enough to justify the claim for privilege in respect of most of the disputed documents. Had I not inspected the disputed documents, I would have rejected the claim to privilege in respect of many of those documents. I certainly would not have been satisfied, either from the description of the documents in the Straughan affidavits, or the limited evidence as to the documents’ contents or circumstances of creation, that the claim for privilege had been adequately made out.

That is particularly so in the light of the apparently unchallenged evidence of Matthew Croagh, a lawyer acting for McConnell Dowell, in his affidavit of 16 July 2007. Mr Croagh deposed that he was unable to find any documents discovered by the BHP parties in the critical period from 1 to 8 September 2003 that related to the second default notice, and in respect of which the BHP parties had not claimed privilege.

A party claiming that a document is privileged from production bears the onus of establishing and proving the privilege by evidence and/or argument, even though it is the other party that has applied for relief by way of an order for production or inspection.[4]
[4]Grant v Downs op cit at 689; AWB v Cole (No 5) [2006] FCA 1234 at [44]; Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 at [11].

The relevant principles relating to legal professional privilege are not contentious in this case, and I do not propose to recite them here, given the urgency of the matter. They were helpfully and recently summarised by Young J in the two recent AWB decisions: AWB Ltd v Cole[5] and AWB Ltd v Cole (No 5).[6]
[5][2006] FCA 571 at [105]-[106].
[6]Op cit.

As I intend to uphold the claim for privilege in relation to all except seven of the disputed documents, I will only refer to matters of principle insofar as they explain why I am not satisfied of the privileged status of those documents.

In respect of six of those seven documents, I am not satisfied from the Straughan affidavits, or from my examination of the documents, that they were prepared for a dominant purpose which is protected by privilege. A “dominant purpose” attaching to the creation of a communication is one that predominates over other purposes. It is the prevailing or paramount purpose.[7] A purpose that is primary or substantial does not satisfy the requirement of dominant purpose. The touchstone is the element of paramountcy: Mitsubishi Electric (Australia) Pty Ltd v. Victorian Workcover Authority.[8]
[7]Ibid at [44]; AWB v Cole, op cit at [105].
[8]Op cit at [10].

The purpose for which a document was brought into existence is a question of fact, and in a contested situation the court must determine the question. The court is not bound by the statement of a party claiming privilege as to the intended use of the document, and may inspect the document to reach its own conclusion.[9] The dominant purpose for which the communication is said to have been created must be established by specific and reliable evidence; a mere assertion is insufficient to establish the privilege.[10]
[9]Grant v Downs, op cit at 689.
[10]Kennedy v Wallace (2004) 213 ALR 108 and [12]-[16].

In circumstances where a document was prepared at the request or direction of a legal adviser, then in assessing the dominant purpose of the communication or document it is necessary to look at the dominant purpose not only of the author, but also the person under whose direction the communication or document was prepared.

I also agree with the BHP parties that, given that the court is not bound by a statement of a party as to the intended use of the document, the court should not draw any adverse inference merely by reason of the fact that the party seeking to maintain privilege does not make a statement in its affidavit as to the dominant purpose. But, in that latter case, in the absence of proper evidence, then the party claiming privilege must justify the claim to privilege from the description or an examination of the document.

McConnell Dowell criticised the fact that Mr Straughan had relied on hearsay evidence in relation to some of the disputed documents. The BHP parties’ response was that one should look at paragraph 2 of the Straughan affidavit of 12 July, where he said, "I make this affidavit from my own knowledge and having regard to BHPB Group records unless I state otherwise". It was submitted on behalf of the BHP parties that I could therefore be satisfied in respect of much of the information in the affidavit that Mr Straughan was deposing from personal knowledge.

The problem with that is this: personal knowledge and knowledge acquired by examining group records are completely different matters, one involving truly personal knowledge, the other involving hearsay. Hearsay may of course be relied upon in an interlocutory application such as this, but if it relied upon then the hearsay basis needs to be properly set out. In many parts of his affidavit, the hearsay claim is not properly made (even though some defects were cured by the affidavit of 3 August).

There is ample evidence to suggest that from March 2003 onwards, the BHP parties were considering not only their legal, but also their commercial, options. That would hardly be surprising in the context in which this dispute has arisen. Many of the disputed documents were prepared by, or sent to, persons whose position was primarily commercial. Mr Straughan's own affidavit of 12 July confirms that even his role went beyond the provision of legal advice on some occasions. Where a document appears to have been prepared for a number of purposes, a court needs to be careful in making findings as to the dominant purpose, where the supporting affidavit material is not clear and cogent.

I turn to consider the seven documents which I am not persuaded are privileged. The first four documents all arise from paragraph 32 of the Straughan affidavit of 12 July, which paragraph needs to be read in the light of paragraph 31:

31.In around March 2003, [the BHP parties] sought advice from Mallesons in relation to [McConnell Dowell’s] performance , and [the BHP parties’] options under the LSTK Contract. In preparation for briefing Mallesons, Matthew Ridolfi prepared a handwritten document: MN.135.036.001.0053. This document is dated 6 March 2003 (see second page). Amy Stewart sent a typed version of Matthew Ridolfi’s document to Mallesons for advice and further development. The document prepared by Amy Stewart became a working document (referred to as the ‘Minerva Options Table’) which was developed with input from Mallesons, and subsequently AAR.
32.The ‘Minerva Options Table’ and legal advice concerning [the BHP parties’] options under the LSTK Contract was reproduced in other documents. I exhibit as CAS-6 MN.501.006.252.0137 and attachment MN.501.006.252.0138 an email from Matthew Ridolfi to John Rickman dated 17 May 2003 seeking input on a draft of a document referred to as the Minerva Options Paper, with the Minerva Options Table and legal advice concerning options redacted. The document also contains a number of redactions for relevance. These parts of the document contain confidential information concerning the terms of the GSA or financial information concerning the Project. As these matters are not relevant to any issue in dispute in the proceeding they have been redacted so as to restrict the dissemination of that information. MN.139.002.001.0188 is another reproduction of the Minerva Options Table. MN.501.005.820.0028 is another document which sets out options.

There are a number of documents created around this time which consider various options relating to the Minerva Project. It is clear on the evidence, and as a matter of ordinary commercial experience, that the options would have been considered both at a legal and commercial level. The claim set out in paragraphs 31 and 32 of the affidavit is not sufficient to justify a privileged status for every single document that was created and which discussed options that were open and discussed.

Document MN.139.002.001.0188 is a two-page document (which is reproduced in a slightly different form with annotations as the last two pages in document MN.501.006.252.0138). The basis of the claim is said to be that it is a document which contains, refers to or records legal advice. That is not apparent from an examination of the document itself, or satisfactorily established by the evidence.

The next document is MN.501.005.820.0028. It is a two-page document headed “Scenario Descriptions”. Once again, whilst it contains a number of options, it is not apparent that the document contains or records legal advice. In fact, the privilege claim made for this document is based on its dominant purpose. But there is no evidence at all as to who prepared this document, or for what purpose, nor does an examination of the document disclose either of those matters. Mr Straughan simply says that "MN.501.005.820.0028 is another document which sets out options." One would be hard pressed to think of a less helpful description as to the circumstances in which a document was created. I am not satisfied that this document was created for the dominant purpose of obtaining legal advice.

The next document in this category is MN.501.006.252.0137. This is simply a single-page email. The BHP parties conceded in argument that this is not privileged. Had that not been conceded, it is apparent from an examination of it that privilege was not made out.

The more controversial document is the attachment to that email, which is document MN.501.006.252.0138. A redacted form of the document was provided to McConnell Dowell during the course of the appeal. The redactions to this and a number of other documents are in two forms; one type of redaction is based on the claim for privilege, the other is based on irrelevance. I have not been addressed on the irrelevance redactions, and make no ruling in relation to those. I am not satisfied either from the evidence, or from an examination of the document, that the dominant purpose test is satisfied in respect of these redacted portions.

Paragraph 69 of the Straughan affidavit of 12 July says:

Following termination of the LSTK contract, BHPB also obtained legal advice from AAR in relation to assignment and novation of agreements with subcontractors. MN.101.008.001.0027 is a copy of a document I was given for the purposes of providing legal advice as I describe in this paragraph.

Even leaving to one side the apparent inconsistency between the first line, which refers to BHP obtaining legal advice from AAR, and the last two lines, which apparently refer to Mr Straughan providing legal advice, my concerns with this document are as follows.

It is not clear either from the affidavits or from an examination of the document who prepared it, when and for what other purpose. The document on its face appears to address commercial matters rather than legal matters. Given the inadequacy of description and the nature of the document, I would require in respect of this document better evidence to satisfy a dominant purpose claim. Even if this document was given to Mr Straughan by an unidentified person from an unidentified author for the purpose of advice, I am certainly not satisfied that a dominant purpose claim has been made out for document MN.101.008.001.0027.

Paragraph 71 of the 12 July affidavit says "In connection with the negotiation of the new contract with Saipem, Ian Cashion prepared documents for the purpose of obtaining advice from AAR, an example of which is MN.501.005.577.0086". An examination of this document discloses what appears to be a purely commercial document containing figures and pricings. There is nothing about it on its face which would appear to relate to the obtaining of legal advice. But even assuming that it was in fact provided, as Mr Straughan says, for the purpose of obtaining advice from AAR, I am not satisfied from an examination of it and from the brief description in paragraph 71, that its dominant purpose has been established as a privileged one.

The final document is in paragraph 87 of Mr Straughan's affidavit, where he deposes:

I am informed by John Rickman and Ross Newton, and believe that MN.501.003.176.0112 is a document prepared for the purposes of the litigation the subject of this proceeding.

An examination of the document in paragraph 87 discloses what appear to be purely commercial matters. It is certainly not apparent to me either from an examination of the document, or from the very brief description in paragraph 87, how it is said that this was prepared for the purpose of the litigation. It is not even apparent from the document or from the evidence when this document was prepared.

Annexed to these reasons is a modified version of exhibit CAS14, which lists each of the documents the subject of the appeal, and my ruling in relation to that document.

I will hear from the parties as to the precise form of orders and as to costs.

ANNEXURE
RULING ON PRIVILEGE CLAIMS

Para.	Document ID	Challenge Description	Privilege Grounds	Judge’s ruling / comments
31	MN.135.036.001.0053	Handwritten notes of Matthew Ridolfi entitled DO Nothing Contractual	011. Document created for the dominant purpose of obtaining legal advice.	Privileged
32	MN.139.002.001.0188	Appendix 2 to the Minerva Draft Options Paper, which records advice provided by Mallesons Stephen Jaques and AAR.	014. Document which contains, refers to or records legal advice.	Not privileged
32	MN.501.005.820.0028	Undated typed notes prepared by Ian Cashion for the purposes of obtaining legal advice.	011. Document created for the dominant purpose of obtaining legal advice.	Not privileged
32	MN.501.006.252.0137	Copy Email from Ridolfi, Matthew M to Rickman, John with attachment(s)	006. Confidential Communication created for the dominant purpose of obtaining legal advice, or a record of such communication.	Not privileged (conceded by BHP)
32	MN.501.006.252.0138	Draft document dated May 2003 entitled '2nd draft Minerva Project Options Paper - Confidential'	026. Attachment to Confidential Communication created for the dominant purpose of obtaining legal advice.	Redactions are not privileged
38(a)	MN.501.002.185.0048	Copy Email from Ridolfi, Matthew M to Hartwig, Natalie with attachment(s) which forwards an email dated 8 August 2003 from Straughan, Craig to Robinson, Greg and Weill, Mike.	016. Confidential Communication which contains, refers to, or records legal advice and which forwards legal advice.	Privileged
38(a)	MN.501.002.185.0049	Memorandum dated 5 August 2003 from Craig Straughan to Greg Robinson and Mike Weill with attachments. CC to Terry White, Pedro De Souza, Matthew Ridolfi and Jim Lyons.	001. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of giving legal advice, or a record of such communication	Privileged
38(a)	MN.501.002.185.0073	Presentation dated 5 August 2003 to Greg Robinson which records legal advice provided by Craig Straughan.	010. Document created for the dominant purpose of giving legal advice.	Privileged
38(b)	MN.501.002.278.0215	Copy Email from Ridolfi, Matthew M to Weill, Mike A which forwards an email dated 5 August 2003 from Straughan, Craig to Robinson, Greg and Weill, Mike A. CC to White, Terry; De Souza Pedro; Ridolfi, Matthew and Lyons, Jim.	016. Confidential Communication which contains, refers to, or records legal advice and which forwards legal advice.	Privileged
38(c)	MN.501.006.591.0291	Copy Email from Ridolfi, Matthew M to Hartwig, Natalie with attachment(s), which forwards an email from Straughan, Craig CA to Robinson, Greg G (CFO) and Weill, Mike A dated 5 August 2003	016. Confidential Communication which contains, refers to, or records legal advice and which forwards legal advice.	Privileged
38(c)	MN.501.006.591.0292	Memorandum dated 5 August 2003 from Craig Straughan to Greg Robinson and Mike Weill, with attachments	001. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of giving legal advice, or a record of such communication	Privileged
38(c)	MN.501.006.591.0316	Presentation dated 5 August 2003 to Greg Robinson which records legal advice provided by Craig Straughan.	014. Document which contains, refers to or records legal advice.	Privileged (This is the same document as MN.501.002.185.0073, although legal professional privilege is claimed on different bases).
38(d)	MN.501.006.377.0086	Copy Email from Ridolfi, Matthew M to Weill, Mike A, which forwards an email from Straughan, Craig CA to Robinson, Greg G (CFO) and Weill, Mike A dated 5 August 2003	009. Confidential Communication which contains, refers to or records legal advice.	Privileged
40(a)	MN.501.006.128.0211	Copy Email from Rickman, John to Cashion, Ian, which forwards an email from Ridolfi, Matthew M to AAR dated 4 June 2003	006. Confidential Communication created for the dominant purpose of obtaining legal advice, or a record of such communication. 009. Confidential Communication which contains, refers to or records legal advice.	Privileged
40(b)	MN.501.006.128.0279	Copy Email from Rickman, John to Cashion, Ian, which forwards an email from AAR to Rickman, John and Ridolfi, Matthew M dated 5 June 2003	009. Confidential Communication which contains, refers to or records legal advice.	Privileged
40(c)	MN.501.006.587.0374	Copy Email from Manger, Adrian A to Hartwig, Natalie, which forwards an email from Straughan, Craig CA to Cashion, Ian dated 10 June 2003	009. Confidential Communication which contains, refers to or records legal advice.	Privileged
40(d)	MN.501.006.587.0376	Copy Email from Manger, Adrian A to Hartwig, Natalie, which forwards an email from Straughan, Craig CA to Cashion, Ian dated 10 June 2003	009. Confidential Communication which contains, refers to or records legal advice.	Privileged
52	MN.112.001.001.0051	Handwritten minutes and notes of Minerva Project meeting on 9 August 2003 with Craig Straughan and others	002. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of obtaining legal advice, or a record of such communication 001. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of giving legal advice, or a record of such communication	Redactions are privileged
52	MN.104.007.016.0000	Handwritten minutes and notes of Minerva Project meeting held on 9 August 2003 with Craig Straughan and others	001. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of giving legal advice, or a record of such communication 002. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of obtaining legal advice, or a record of such communication	Redactions are privileged (This is the same document as MN.112.001.001.0051)
52	MN.120.016.001.0092	Handwritten minutes and notes of Minerva Project meeting on 9 August 2003 with Craig Straughan and others	001. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of giving legal advice, or a record of such communication 002. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of obtaining legal advice, or a record of such communication	Redactions are privileged (This is the same document as MN.112.001.001.0051)
52	MN.135.030.001.0186	Original Minutes of Minerva Project Meeting on 9th August 2003 with Craig Straughan and others	001. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of giving legal advice, or a record of such communication 002. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of obtaining legal advice, or a record of such communication	Redactions are privileged
52	MN.135.030.001.0197	Handwritten minutes and notes of Minerva Project meeting on 9 August 2003 with Craig Straughan and others	002. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of obtaining legal advice, or a record of such communication 001. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of giving legal advice, or a record of such communication	Redactions are privileged (This is the same document as MN.112.001.001.0051)
52	MN.501.005.820.0020	Minutes of Minerva Project Meeting on 9 August 2003 with Craig Straughan and others.	002. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of obtaining legal advice, or a record of such communication 001. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of giving legal advice, or a record of such communication	Redactions are privileged (This is the same document as MN.135.030.001.0186)
52	MN.120.016.001.0084	Original Minutes of Minerva Project Meeting on 9th August 2003 with Craig Straughan and others	002. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of obtaining legal advice, or a record of such communication 001. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of giving legal advice, or a record of such communication	Redactions are privileged (This is the same document as MN.135.030.001.0186)
52/70	MN.104.007.017.0000	Copy of whiteboard printout of handwritten notes entitled 'Saipem - What Do We Want?' prepared by Matthew Ridolfi located in Craig Straughan's file.	002. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of obtaining legal advice, or a record of such communication 001. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of giving legal advice, or a record of such communication	Privileged
53	MN.501.002.218.0027	Copy Email from Ridolfi, Matthew M to Murphy, Noel P sent for the purpose of obtaining advice from Craig Straughan and which forwards a series of four emails. The second email is an email dated 30 May 2003 from Ridolfi, Matthew to Murphy, Noel, CC Straughan, Craig. The third email is an email dated 29 May 2003 from Straughan, Craig to Murphy, Noel. The fourth email is an email dated 28 May 2003 from Murphy, Noel to Straughan Craig.	006. Confidential Communication created for the dominant purpose of obtaining legal advice, or a record of such communication.	Privileged
58	MN.104.007.015.0000	Undated copy of whiteboard printout located in Craig Straughan's file	002. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of obtaining legal advice, or a record of such communication 001. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of giving legal advice, or a record of such communication	Privileged
58	MN.135.030.001.0203	Undated Copy File Note/Note entitled Confidential & Privileged	001. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of giving legal advice, or a record of such communication 002. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of obtaining legal advice, or a record of such communication	Privileged (This is the same document as MN.104.007.015.0000)
60(a)	MN.501.004.296.0369	Copy Email from Couper, Kirsty T to Davis, Durham	006. Confidential Communication created for the dominant purpose of obtaining legal advice, or a record of such communication.	Privileged
60(a)	MN.501.004.296.0370	Undated table completed by Kirsty Couper for the purposes of obtaining legal advice.	026. Attachment to Confidential Communication created for the dominant purpose of obtaining legal advice.	Privileged
60(b)	MN.501.005.791.0361	Table prepared by AAR and completed by unknown author, saved as #11382390v1_BHPB_Analysis_of_Contractor's_Response_to_Default_Notice_(MELLEG)2	010. Document created for the dominant purpose of giving legal advice. 011. Document created for the dominant purpose of obtaining legal advice.	Privileged
60(c)	MN.501.005.795.0383	Undated memorandum from Charles Sim to Craig Straughan marked confidential & privileged.	011. Document created for the dominant purpose of obtaining legal advice.	Privileged
60(c)	MN.501.005.796.0317	Undated memorandum from Charles Sim to Craig Straughan.	011. Document created for the dominant purpose of obtaining legal advice.	Privileged
60(d)	MN.501.005.797.0001	Table prepared by AAR partially completed by unkown author for the purposes of obtaining legal advice.	010. Document created for the dominant purpose of giving legal advice. 011. Document created for the dominant purpose of obtaining legal advice.	Privileged
64(a)	MN.501.003.495.0085	Copy Email from Long, Neville to Clarke, Rob RJ, Cini, Joe J, Geelen, Andre AL with attachment(s) providing information requested by Straughan, Craig for the purposes of obtaining advice, as set out in an email dated 11 August 2003 from Straughan to various parties, a copy of which is forwarded at the end of the email.	006. Confidential Communication created for the dominant purpose of obtaining legal advice, or a record of such communication.	Privileged
64(a)	MN.501.003.495.0088	Copy Spreadsheet entitled Suppliers prepared by Neville Long	026. Attachment to Confidential Communication created for the dominant purpose of obtaining legal advice.	Privileged
64(b)	MN.501.006.159.0038	Copy Email from Rickman, John to Cashion, Ian with attachment(s)	006. Confidential Communication created for the dominant purpose of obtaining legal advice, or a record of such communication.	Privileged
64(c)	MN.501.006.159.0141	Copy Email from Ridolfi, Matthew M to Cashion, Ian with attachment(s)	006. Confidential Communication created for the dominant purpose of obtaining legal advice, or a record of such communication.	Privileged
64(c)	MN.501.006.159.0142	Spreadsheet entitled 'Minerva suppliers - termination criticality' forwarded by Black, Kevin	026. Attachment to Confidential Communication created for the dominant purpose of obtaining legal advice.	Privileged
64(d)	MN.501.006.230.0329	Copy Email from Black, Kevin KR to Rickman, John, Paparounis, Jim with attachment(s)	006. Confidential Communication created for the dominant purpose of obtaining legal advice, or a record of such communication.	Privileged
64(d)	MN.501.006.230.0330	Spreadsheet entitled 'Minerva suppliers - termination criticality' prepared by Black, Kevin	026. Attachment to Confidential Communication created for the dominant purpose of obtaining legal advice.	Privileged
64(e)	MN.501.006.230.0331	Copy Email from Black, Kevin KR to Rickman, John with attachment(s)	006. Confidential Communication created for the dominant purpose of obtaining legal advice, or a record of such communication.	Privileged
64(e)	MN.501.006.230.0332	Spreadsheet entitled 'Minerva suppliers - termination criticality' prepared by Black, Kevin	026. Attachment to Confidential Communication created for the dominant purpose of obtaining legal advice.	Privileged
64(f)	MN.501.007.408.0275	Copy Email from Long, Neville to Clarke, Rob RJ, Cini, Joe J, Geelen, Andre AL with attachment(s) providing information requested by Straughan, Craig for the purposes of obtaining advice, as set out in an email dated 11 August 2003 from Straughan to various parties, a copy of which is forwarded at the end of the email.	006. Confidential Communication created for the dominant purpose of obtaining legal advice, or a record of such communication.	Privileged
64(f)	MN.501.007.408.0278	Undated spreadsheet entitled 'Suppliers' prepared by Neville Long	026. Attachment to Confidential Communication created for the dominant purpose of obtaining legal advice.	Privileged
64(g)	MN.135.030.001.0171	Copy of draft undated email prepared by Rickman J for the purposes of obtaining legal advice from AAR.	011. Document created for the dominant purpose of obtaining legal advice.	Privileged
64(h)	MN.501.006.159.0042	Copy Email from Ridolfi, Matthew M to Cashion, Ian with attachment(s), which forwards an email from AAR to Ridolfi, Matthew M, Straughan, Craig CA and Rickman, John dated 7 September 2003	016. Confidential Communication which contains, refers to, or records legal advice and which forwards legal advice.	Redactions are privileged
64(h)	MN.501.006.159.0045	Copy Email from Cahill, Meghan to Straughan, Craig CA, Ridolfi, Matthew M, Rickman, John and Cashion, Ian dated 7 September 2003	010. Document created for the dominant purpose of giving legal advice.	Privileged
64(i)	MN.135.030.001.0144	Draft notice dated 1 September 2003 prepared by AAR with handwritten notations, amendments and questions by unknown author.	011. Document created for the dominant purpose of obtaining legal advice.	Privileged
64(j)	MN.135.030.001.0156	Draft notice dated 11 August 2003 prepared by AAR with handwritten notations, amendments and questions made by Ian Cashion for the purposes of obtaining legal advice from AAR.	011. Document created for the dominant purpose of obtaining legal advice.	Privileged
64(k)	MN.135.030.001.0161	Draft notice dated 29 August 2003 prepared by AAR with handwritten notations, amendments and questions made by unkown author for the purposes of obtaining legal advice from AAR.	011. Document created for the dominant purpose of obtaining legal advice.	Privileged
66	MN.501.006.390.0204	Copy Email from Kneebone, Richard to Vine, John JA, Ford, Sheree SL, Robinson, Greg G (CFO), White, Terry TA with attachment(s)	009. Confidential Communication which contains, refers to or records legal advice.	Redactions are privileged
66	MN.501.006.390.0227	Memorandum dated 5 August 2003 from Craig Straughan to Greg Robinson and Mike Weill, with attachments	001. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of giving legal advice, or a record of such communication	Privileged
66	MN.501.006.390.0257	Email from Fast, John JC to Straughan, Craig CA dated 5 September 2003	001. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of giving legal advice, or a record of such communication	Privileged
66	MN.501.006.390.0259	Memorandum dated 7 September 2003 from Craig Straughan to Greg Robinson	001. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of giving legal advice, or a record of such communication	Privileged
66	MN.501.006.390.0262	Memorandum dated 8 September 2003 from Craig Straughan to the Directors and Secretary, BHB Billiton Petroleum Pty Ltd	001. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of giving legal advice, or a record of such communication	Privileged
66	MN.501.006.390.0263	Memorandum dated 8 September 2003 from Craig Straughan to Directors and Secretary, BHP Billiton Petroleum (Victoria) Pty Ltd	001. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of giving legal advice, or a record of such communication	Privileged
66	MN.501.006.390.0264	Memorandum dated 5 September 2003 from Senior Finance Advisor - Bass Strait to Craig Straughan	002. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of obtaining legal advice, or a record of such communication	Privileged
66	MN.501.006.390.0267	Draft undated Minutes of Meeting of Directors, BHP Billiton Petroleum (Victoria) Pty. Ltd.	010. Document created for the dominant purpose of giving legal advice.	Privileged
66	MN.501.006.390.0268	Memorandum dated 5 September 2003 from Minerva Project Manager to Craig Straughan	002. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of obtaining legal advice, or a record of such communication	Privileged
68(a)	MN.501.006.136.0254	Copy Email from Murphy, Noel P to Cashion, Ian with attachment(s)	006. Confidential Communication created for the dominant purpose of obtaining legal advice, or a record of such communication.	Privileged
68(a)	MN.501.006.136.0255	Draft undated agreement prepared by AAR	026. Attachment to Confidential Communication created for the dominant purpose of obtaining legal advice.	Privileged
68(b)	MN.501.006.136.0362	Copy Email from Murphy, Noel P to Cashion, Ian	006. Confidential Communication created for the dominant purpose of obtaining legal advice, or a record of such communication.	Privileged
68(c)	MN.501.006.136.0364	Copy Email from Murphy, Noel P to Cashion, Ian with attachment(s)	006. Confidential Communication created for the dominant purpose of obtaining legal advice, or a record of such communication.	Privileged
68(c)	MN.501.006.136.0365	Draft undated agreement prepared by AAR	026. Attachment to Confidential Communication created for the dominant purpose of obtaining legal advice.	Privileged
68(d)	MN.501.005.192.0285	Copy Email from Murphy, Noel P to Pinceratto, Edward EJ with attachment(s)	009. Confidential Communication which contains, refers to or records legal advice.	Privileged
68(d)	MN.501.005.192.0286	Draft undated agreement prepared by AAR	010. Document created for the dominant purpose of giving legal advice.	Privileged
68(e)	MN.501.006.136.0042	Copy Email from Murphy, Noel P to Cashion, Ian, which forwards an email from AAR to Murphy, Noel P dated 8 September 2003	009. Confidential Communication which contains, refers to or records legal advice.	Privileged
69	MN.101.008.001.0027	Undated typed notes with notations from Matthew Ridolfi.	011. Document created for the dominant purpose of obtaining legal advice.	Not privileged
71	MN.501.005.577.0086	Spreadsheet prepared by Ian Cashion and sent to AAR on 12 September 2003 for the purposes of obtaining legal advice, which was saved as 'Saipem Position'	011. Document created for the dominant purpose of obtaining legal advice.	Not privileged
72	MN.501.005.804.0178	Unsigned memorandum dated 7 September 2003 from Craig Straughan to Wesley Glanville, Ian Pedler & Rick Wilkinson, Santos Limited	009. Confidential Communication which contains, refers to or records legal advice.	Privileged
72	MN.501.006.390.0270	Copy Email from Ridolfi, Matthew M to White, Terry TA, which forwards an email from Straughan, Craig CA to Ridolfi, Matthew M, Rickman, John and AAR dated 2 September 2003	009. Confidential Communication which contains, refers to or records legal advice.	Privileged
72	MN.501.006.640.0313	Copy Email from Hartwig, Natalie to Ridolfi, Matthew M, which forwards an email from Ridolfi, Matthew M to White, Terry TA dated 2 September 2003 which, in turn, forwards an email from Straughan, Craig CA to Ridolfi, Matthew M, Rickman, John and AAR dated 2 September 2003	006. Confidential Communication created for the dominant purpose of obtaining legal advice, or a record of such communication. 002. Confidential Communication between the first and/or third defendant and its legal advisers or amongst its legal advisors made for the dominant purpose of obtaining legal advice, or a record of such communication	Privileged
82	MN.501.002.242.0333	Copy Email from Ridolfi, Matthew M to Cashion, Ian with attachment(s), which email was sent for the purpose of obtaining legal advice from AAR.	006. Confidential Communication created for the dominant purpose of obtaining legal advice, or a record of such communication.	Privileged
82	MN.501.006.131.0381	Copy Email from Ridolfi, Matthew M to Cashion, Ian with attachment(s), which forwards an email from Ridolfi, Matthew M to Greig, Scott S dated 12 March 2002 which, in turn, forwards an email from Straughan, Craig CA to Ridolfi, Matthew M dated 10 March 2002	006. Confidential Communication created for the dominant purpose of obtaining legal advice, or a record of such communication.	Privileged (This is the same document as MN.501.002.242.0333)
84	MN.501.005.887.0341	Undated document entitled Minerva Project Status Summary	014. Document which contains, refers to or records legal advice. 013. Document created for the dominant purpose of contemplated litigation.	Privileged
87	MN.501.003.176.0112	Draft undated email to John Rickman	007. Confidential Communication created for the dominant purpose of legal proceedings.	Not privileged

Notes by judge:
Redactions have only been assessed in respect of claims for privilege. No consideration has been given to redactions on irrelevance grounds.

[2007] VSC 292

8 August 2007