Perdaman Chemicals and Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 3]

[2012] WASC 94

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   PERDAMAN CHEMICALS & FERTILISERS PTY LTD -v- THE GRIFFIN COAL MINING COMPANY PTY LTD [No 3] [2012] WASC 94

CORAM:   MARTIN CJ

HEARD:   12 MARCH 2012

DELIVERED          :   21 MARCH 2012

FILE NO/S:   CIV 1925 of 2011

CIV 2422 of 2011
CIV 2423 of 2011
CIV 3201 of 2011
Consolidated by orders dated 18 August 2011 & 14 November 2011

BETWEEN:   PERDAMAN CHEMICALS & FERTILISERS PTY LTD

Plaintiff

AND

THE GRIFFIN COAL MINING COMPANY PTY LTD
First Defendant

LANCO INFRATECH LTD
Second Defendant

LANCO RESOURCES AUSTRALIA PTY LTD
Third Defendant

RUSSELL CONLEY
Fourth Defendant

MANOJ AGARWAL
Fifth Defendant

LAGADAPATI MADHUSUDHAN RAO
Sixth Defendant

KANDIMALLA K V NAGA PRASAD
Seventh Defendant

LANCO RESOURCES INTERNATIONAL PTE LTD
Eighth Defendant

S AMARENDRAN
Ninth Defendant
 

Catchwords:

Civil procedure - Legal professional privilege - Whether privilege extends to documents produced for the purpose of the provision of legal assistance - Documents fall within scope of privilege

Legislation:

Nil

Result:

The claim for legal professional privilege by ICICI Bank Ltd is upheld
The documents will not be made available for inspection by the parties

Category:    B

Representation:

Counsel:

Plaintiff:     Mr J L Sher & Mr M L Bennett

First Defendant             :     Mr J H Karkar QC, Mr C G Colvin SC, Mr G P Harris & Mr N J Landis

Second Defendant         :     Mr J H Karkar QC, Mr C G Colvin SC, Mr G P Harris & Mr N J Landis

Third Defendant           :     Mr J H Karkar QC, Mr C G Colvin SC, Mr G P Harris & Mr N J Landis

Fourth Defendant          :     Mr J H Karkar QC, Mr C G Colvin SC, Mr G P Harris & Mr N J Landis

Fifth Defendant            :     Mr J H Karkar QC, Mr C G Colvin SC, Mr G P Harris & Mr N J Landis

Sixth Defendant            :     Mr J H Karkar QC, Mr C G Colvin SC, Mr G P Harris & Mr N J Landis

Seventh Defendant        :     Mr J H Karkar QC, Mr C G Colvin SC, Mr G P Harris & Mr N J Landis

Eighth Defendant          :     Mr J H Karkar QC, Mr C G Colvin SC, Mr G P Harris & Mr N J Landis

Ninth Defendant           :     Mr J H Karkar QC, Mr C G Colvin SC, Mr G P Harris & Mr N J Landis

ICICI Bank Ltd             :     Mr M N Solomon

Solicitors:

Plaintiff:     Bennett & Co

First Defendant             :     Clifford Chance

Second Defendant         :     Clifford Chance

Third Defendant           :     Clifford Chance

Fourth Defendant          :     Clifford Chance

Fifth Defendant            :     Clifford Chance

Sixth Defendant            :     Clifford Chance

Seventh Defendant        :     Clifford Chance

Eighth Defendant          :     Clifford Chance

Ninth Defendant           :     Clifford Chance

ICICI Bank Ltd             :     Baker & McKenzie

Case(s) referred to in judgment(s):

Allen, Allen and Hemsley v Deputy Federal Commission of Taxation (NSW) (1988) 81 ALR 617

AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30

Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52

Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325

Mostyn v West Mostyn Coal & Iron Co Ltd (1876) 34 LT 531

MARTIN CJ: 

Introduction

1. These reasons are concerned only with a claim for legal professional privilege which has been made by ICICI Bank Ltd (ICICI) in respect of documents which have been produced to the court upon the return of a subpoena directed to the partners of Maddocks, a legal firm which previously represented ICICI.

2. ICICI's claim for privilege in respect of the documents which have been produced to the court has a somewhat convoluted history, which it is unnecessary to recount.  It is sufficient to note that ICICI was given leave to appear for the purpose of advancing its claim for privilege and has filed affidavit evidence asserting that claim, on the basis that the documents comprise confidential communications or documents prepared for the dominant purpose of the provision of legal advice by Maddocks to ICICI and the other members of a syndicate of banks which provided a financial facility to Lanco Resources Australia Pty Ltd which is the third defendant, and to Lanco Resources International Pte Ltd, which is the eighth defendant.  The claim is made in respect of 26 documents which have been described in a list provided to the parties and to the court which identifies the document type and date, and which also identifies the sender and recipient or recipients of each document.

3. The plaintiff, Perdaman Chemicals & Fertilisers Pty Ltd, disputes the claim for privilege by ICICI, for reasons which it is unnecessary to traverse, but which include the circumstances in which the documents came to be produced to the court by Maddocks.  The plaintiff proposed that I should review the documents in respect of which privilege has been claimed for the purpose of assessing whether it can be seen from the face of the documents that they are privileged.  Neither ICICI nor any of the defendants substantively opposed that proposition.  Accordingly, I directed that I would review the documents for that purpose, indicating also that if I concluded that any document did not, on its face, appear to be privileged, I would give ICICI the opportunity to place further material before me in relation to the claim for privilege in respect of that document.

4. The evidence establishes that ICICI was the leading member in a banking syndicate which provided finance to the third and eighth defendants in accordance with a facility agreement entered into in February 2011.  Maddocks was engaged by ICICI to provide legal advice to ICICI and the other syndicate members in respect of the facility agreement.  Another office of Maddocks provided advice to the third defendant, Lanco Resources Australia Pty Ltd (Lanco Australia), in respect of matters associated with the facility agreement, and what has been described as an 'information barrier' was erected between the two offices.  Although some of the documents over which ICICI claims privilege are communications between partners and employees of Maddocks, all are communications between Maddocks' personnel engaged in the provision of advice to ICICI.  None of the documents over which privilege is claimed are communications between personnel of Maddocks engaged in providing advice to ICICI and personnel of Maddocks engaged in providing advice to Lanco Australia and it is therefore unnecessary to give any consideration to the interesting issues which might arise when privilege is claimed in respect of communications between different members of the one legal firm representing different clients and operating on different sides of an information barrier (or Chinese wall). 

5. As might be expected from the context in which the documents were prepared, none were generated for the purposes of litigation, or for the provision of advice in respect of litigation, actual or prospective, to which ICICI is or might become a party.  All are concerned with the lending transaction to which ICICI and the other syndicate banks were a party.  It is therefore appropriate that I record that I have proceeded on the basis of my view that the scope of legal professional privilege extends beyond documents created for the dominant purpose of the provision of legal advice, and extends to and includes documents created for the purposes of providing legal assistance, including the preparation of draft agreements and observations with respect to the terms of agreements which have been entered into or are under contemplation - see Mostyn v West Mostyn Coal & Iron Co Ltd (1876) 34 LT 531; Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325; AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 [44] (Young J); although documents which are 'the means of carrying out, or are evidence of, transactions which are not themselves the giving or receiving of advice' are not privileged - see Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, 123 (Dawson J), Allen, Allen and Hemsley v Deputy Federal Commission of Taxation (NSW) (1988) 81 ALR 617.

6. I have read the documents over which privilege is claimed by ICICI.  To the extent that they can be described without infringing the privilege that is asserted, they can be said to fall within one or other of the following categories:

   (a)communications between personnel of Maddocks expressing views with respect to the operation and effect of certain agreements;

   (b)communications between Maddocks and members of the banking syndicate attaching draft documents prepared by other solicitors;

   (c)communications between personnel of Maddocks with respect to draft agreements or other documents;

   (d)communications between syndicate members and Maddocks with respect to draft documents;

   (e)communications between personnel of Maddocks with respect to the impact which certain matters might have upon transactions with respect to which they were acting on behalf of ICICI;

   (f)communications between members of the lending syndicate and Maddocks requesting copies of documents in the context of and pertaining to legal advice given by Maddocks;

   (g)communications between a member of the banking syndicate and Maddocks, copied to other members of the syndicate, providing instructions to Maddocks;

   (h)documents providing legal advice from Maddocks to members of the banking syndicate; and

   (i)communications from Maddocks to members of the banking syndicate recording the receipt of instructions given.

7. It is apparent from the face of the documents which I have reviewed that all can be characterised as having come into existence for the dominant purpose of the provision of legal assistance in relation to the transactions with which ICICI and the other members of the banking syndicate were concerned.  I have concluded that they fall within the scope of legal professional privilege which has been claimed, and I will direct that they not be made available for inspection by any of the parties to these proceedings.  I will invite the parties to these proceedings to advise the court whether they wish the court to retain the documents which have been produced and in respect of which privilege from inspection is claimed, or whether the documents can be returned to Maddocks.  I will also invite submissions on the subject of the costs of ICICI's claim for privilege.