Porter v Sundance Resources Ltd - [2015] WASC 327

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PORTER -v- SUNDANCE RESOURCES LTD [2015] WASC 327

CORAM: KENNETH MARTIN J

HEARD: 12 AUGUST 2015

DELIVERED : 18 AUGUST 2015

PUBLISHED : 1 SEPTEMBER 2015

FILE NO/S: CIV 1632 of 2013

BETWEEN: DAVID JAMES PORTER
Plaintiff
AND
SUNDANCE RESOURCES LTD
Defendant

Catchwords:

Practice and procedure - Interlocutory application - Challenges to claims of legal professional privilege - Waiver - Prior drafts of deeds - Finalised versions disclosed - No basis to disturb claim of privilege over unexecuted prior drafts - Turns on own facts

Legislation:

Nil

Result:

Application refused as regards argued issues

Category: B

Representation:

Counsel:

Plaintiff: Mr D Ryan SC & Mr M Feutrill
Defendant: Ms S E Russell

Solicitors:

Plaintiff: Tottle Partners
Defendant: Clyde & Co (Perth Office)

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

Attorney‑General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475
AWB v Cole [No 5] [2006] FCA 1234; (2006) 234 ALR 651
DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
Public Transport Authority (WA) v Leighton Contractors Pty Ltd [2007] WASCA 151; (2007) 34 WAR 279
Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1

KENNETH MARTIN J: This action has been listed for a trial of five days, commencing on Monday, 7 September 2015. The trial was listed after the plaintiff had sought leave to bring a late application for summary judgment on 28 May 2015. A trial was ordered instead, at the earliest opportunity.
I am concerned with the residue of the plaintiff's most recent interlocutory application, by its chamber summons of 4 August 2015 seeking, by reference to par 2 of that summons, the production and inspection of complete and unredacted copies of certain identified email documents and certain attachments to those emails. Other aspects of the chamber summons, particularly in relation to the plaintiff's claim for further and better discovery, have now been resolved by consent.
For the purposes of what remains of the application, I have had the benefit of the plaintiff's extensive written submissions of 7 August 2015. They were responded to by the defendant's equally comprehensive written submissions of 10 August 2015.
I heard oral arguments on this urgent application during the morning of Wednesday, 12 August 2015. There was negligible, if any, disagreement between the parties concerning the applicable legal principles governing what are, essentially, the plaintiff's challenges against the defendant's assertions of legal professional privilege - seen in respect of the identified documents at par 2 of the defendant's chamber summons.
The essence of the plaintiff's twofold challenge arises in circumstances where it accepts it carries an evidentiary burden to disturb the defendant's articulated assertions of legal professional privilege, resisting production and inspection of certain documents. In the first place, the plaintiff attacks the assertion of legal professional privilege (in respect of iterations of unexecuted draft…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2015] WASC 327
Decision Date: 1 SEPTEMBER 2015

CaseChat Overview and Summary

Porter was the plaintiff in an interlocutory application against Sundance Resources Ltd, a mining company, heard in the Supreme Court of Western Australia. The application was brought under the Mining Act 1978 (WA) and concerned challenges to claims of legal professional privilege over documents, specifically prior drafts of deeds and emails, which were central to the substantive litigation between the parties. The plaintiff sought to overturn the defendant's assertion of privilege over these documents, claiming they had been waived or were not entitled to privilege.

The court was required to decide whether the plaintiff had discharged the evidentiary onus to demonstrate that the privilege claims were erroneously asserted and maintained. This included assessing whether there had been any explicit or implicit act of inconsistency that amounted to a waiver of privilege. The court also had to examine whether the disclosure of finalised versions of the deeds had inadvertently led to the waiver of privilege over the unexecuted prior drafts.

The court determined that the plaintiff had not met the evidentiary onus of proving that the privilege claims over the redacted emails and unexecuted prior drafts of the deeds had been erroneously asserted. The court found that the evidence, particularly the uncontradicted evidence from the defendant's affidavits, supported the assertion that the communications were seeking or receiving legal advice, thus justifying the privilege claims. The court noted that there was no evidence of waiver or inconsistency in the way the privilege had been applied. Therefore, the claims of privilege over the unexecuted prior drafts and the redacted emails were upheld.

No specific final orders were made in this excerpt, as the case focused on the interlocutory application's outcome concerning the privilege claims. However, the court's decision effectively upheld the defendant's right to maintain privilege over the specified documents, barring their disclosure in the ongoing litigation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

At the conclusion of oral arguments on 12 August 2015, I indicated that, on the basis of the materials before me, I was not satisfied that the plaintiff had discharged the evidentiary onus it carried concerning an undermining of the privilege claim over the currently redacted emails, which were the subject of a part of the application: see Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1, 16. In particular, it seemed to me that the overall state of the evidence concerning those redacted emails was as to their being seen to be requesting, receiving or circulating for discussion by board members of the defendant, the legal advice that was then received by the defendant from one or other of its then external lawyers (Mr Blakiston or Ms Keats) at the Perth law firm of Blakiston & Crabb. In my assessment, this issue was effectively concluded by uncontradicted evidence of the defendant as is found under pars 57 through 79 of the affidavit of Jennifer Anne Thornton, of the defendant's current solicitors of record, Clyde & Co, sworn 10 August 2015. Beyond that point, I indicated that I required more time to consider the full implications of the extensive underlying documentary materials put before me by both sides, surrounding the plaintiff's further challenges raised against the claims of legal professional privilege in respect of the plaintiff's pursuit of prior iterations of unexecuted drafts of the two deeds. These iterations had been circulated as attachments to the various emails of September 2008 which were then circulating between board executives and the defendant and (sometimes) others. Again, considerations of alleged waiver also arise - particularly by reference to prior undated and unexecuted draft iterations of the two deeds which had been email attachments, but which have recently now been produced by the defendant: see attachment MC36 at page 5 of Ms Chaar's affidavit sworn 7 August 2015 for Version 2 (V2) of the Bogne deed, as was circulated under Mr Don Lewis' email of 23 September 2008 to Mr Bogne and to others. Likewise, page 25 of Ms Chaar's lengthy earlier affidavit sworn 4 August 2015, refers to an email from Don Lewis to John Carr-Gregg of 29 September 2008 attaching a Version 4 (V4) of Mr Bogne's deed. Privilege claims over that earlier draft were withdrawn at the hearing before me with copies circulated all round at the hearing. That version looks to have been circulated more widely than just the defendant's board members. For the reasons which follow, I am, after consideration, of the view that, similarly as for the September 2008 redacted emails, the plaintiff has not discharged the evidentiary onus of demonstrating that the assertion of privilege in respect of other versions of antecedent drafts of these deeds has been erroneously asserted and maintained. Nor am I persuaded that there has been any explicit or implicit act of inconsistency: see DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499 [11] - [14], citing Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 [27] - [29], such as to amount to an act of waiver, as regards the continuing assertions of legal professional privilege concerning the residual antecedent unexecuted draft versions of the two deeds circulating prior to a finalisation of the two final deeds as were executed by Mr Bogne and Mr Asso'o in October 2008.