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 agreements and the redactions made to associated emails), as being conceptually misconceived. It buttresses that submission by pointing to previous misapprehensions or changes of position by the defendant, by way of it eventually withdrawing prior assertions of privilege in respect of two finalised undated, but executed, deeds by Mr Roger Bogne and Mr Serge Asso'o, which are said to have been perfected during October 2008.
The two finalised deeds themselves are now openly produced by the defendant and actually relied upon, as I will explain. The two finalised deeds are, in fact, identified under the defendant's answers to particulars, as were provided on 3 July 2015, given in respect of the defendant's re-amended defence, of 12 June 2015.
The plaintiff's other conceptual basis of challenge against the assertions of privilege in respect of prior unexecuted drafts of the two deeds and redactions to emails which attach them, contends for a loss of that privilege, should it have arisen, by reason of acts of waiver, either explicit or implicit, by the defendant.
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.
Before amplifying the basis for those conclusions, it will be helpful contextually, if I address the state of the pleadings. I do that to assess where the two finalised October 2008 deeds (as were executed by the defendant with either Mr Bogne or Mr Asso'o) stand, from an overall possible relevance perspective, at the looming trial.
I proceed, therefore, to a short consideration of the current state of the pleadings.

Pleadings

By his amended statement of claim of 27 March 2015, the plaintiff, Mr Porter, contends at par 5 for a perfecting of an oral agreement with the defendant corporation on or about 8 June 2006, which he alleges was made as between Mr John Corr acting on behalf of the defendant with himself and also with Messrs Bogne and Asso'o.
The current plea by Mr Porter as to a contended 'Agreement', identifies an asserted three key aspects, under pars 5.1, 5.2 and 5.3, in the following terms:
5.1The plaintiff would identify new prospective areas for iron ore south of the Mbalam Deposits, prepare the technical parts of applications for prospection permits to be submitted to the Mines Department in Brazzaville, select areas within the prospection permit areas for mineral exploration licences, prepare the technical parts of applications for mineral exploration licences and co-ordinate the application process;
5.2Mr Roger Bogne ('Bogne') and Mr Serge Asso'o ('Asso'o') would travel to Brazzaville, arrange to incorporate a new company in the Republic of Congo controlled by the defendant, select local partners and negotiate satisfactory terms with them, prepare and lodge with the Mines Department applications for prospection permits in the name of the new company, and following the grant of prospection permits, prepare and lodge applications for mineral exploration licences in the name of the new company; and
5.3in consideration for the procurement of the issue of mineral exploration licences in the name of the new company, over areas approved by the defendant, the defendant would on the grant of mineral exploration licences grant to each of the plaintiff, Bogne and Asso'o, 10 million options to acquire an ordinary share in the capital of the defendant, exercisable at any time within three years from the date of issue at an exercise price of 10 cents per option ('Options').
At par 6 of his amended statement of claim, Mr Porter then pleads:
The Agreement was made orally on or about 8 June 2006 between the plaintiff and Corr, on behalf of the defendant.
Under par 7 of his pleading, Mr Porter then contends as to various aspects of his following performance of that 8 June 2006 oral 'Agreement', as are said to have been undertaken by himself and by Mr Bogne and Mr Asso'o. This is said to have been a performance in the multiple respects as are identified under subpars 7.1 through 7.11.
In particular, by his subpar 7.8 Mr Porter contends that he, Mr Bogne and Mr Asso'o:
procured the issue to the Subsidiary [ie, a corporation Congo Iron (SA) which had been incorporated in the republic of Congo in October 2006 and in which Sundance Resources Ltd controlled 70% of issued shares. See par 7.5] of two prospection permits for the said areas on 30 November 2006;
Particulars
Prospection Permit 'Ibanga' No 288 and
Prospection Permit 'Nabeba-Bamegod' No 292.
Beyond that, by subpar 7.11, Mr Porter also contends that he, Mr Bogne and Mr Asso'o, thereafter:
procured the issue to the Subsidiary of two mineral exploration licences on 2 August 2007 ('Licences').
Particulars
Mineral exploration licence 'Ibanga' No 2007-362 and
Mineral exploration licence 'Nabeba-Bamegod' No 2007-363.
Next, by par 8A of his amended statement of claim, Mr Porter advances, to plead that the two areas the subject of the (Mineral Exploration) Licences had been approved by Sundance Resources Ltd - at a meeting of the defendant's board on 8 March 2007 and, further, that Mr Bogne, on behalf of himself, Mr Porter and Mr Asso'o, was advised of this (approval) by an email of the same day.
So essentially, the heart of Mr Porter's currently pleaded contractual damages claim against the defendant, is that his version of the terms of an oral 8 June 2006 Agreement with the defendant, were fully performed by him. Consequently, and in breach of the terms of that 'Agreement', Mr Porter pleads that Sundance Resources Ltd failed and refused to grant to him 10 million options (exercisable at 10 cents per option) in the defendant - as he (as well as Mr Bogne and Mr Asso'o) were effectively promised by Mr Corr. Mr Porter pleads that he has consequently sustained damages as a result of that breach by the defendant. That is a very simply put breach of a 2006 contract. (For the looming trial Mr Corr has provided a witness statement to support Mr Porter's damages breach case.)
Mr Porter goes on to plead further under his par 9 (perhaps by way of an anticipated defence and, hence, unnecessarily in the circumstances) that:
In or about October 2008, Bogne, Asso'o and [Sundance Resources Ltd] agreed to release each other from further performance of the Agreement and in lieu thereof, it was agreed that in the event that 100 million tonnes of JORC-compliant hematite reserves grading + 60% Fe was defined on the Licences, the defendant would grant to each of Bogne and Asso'o 5 million options to acquire an ordinary share in the capital of [Sundance Resources Ltd], exercisable at any time within three years from the date of issue at an exercise price of 25 cents per option.
Notwithstanding Mr Porter's reference by his par 9 to a 2008 October agreement of Messrs Bogne and Asso'o to release the defendant, it is clear that it is not contended that those 2008 arrangements ever extended to Mr Porter.
Essentially then, Mr Porter's straightforward claim for breach of contract and for damages hinges upon the contended alleged breach by Sundance Resources Ltd of the alleged (Porter/Corr) oral Agreement of 8 June 2006 - being the oral agreement in the terms as pleaded under par 5, as contended for by Mr Porter.
I pause to say that it appears that none of the documents that are in contention upon this application by way of the application for further and better discovery, or then in relation to challenging the defendant's claims of legal professional privilege (including under alleged acts of explicit or implicit waiver) would seem to address or bear upon Mr Porter's alleged oral Agreement of 8 June 2006. Instead, they only concern later October 2008 arrangements as were entered or evidenced by the two deeds - only concerning Messrs Bogne and Asso'o - by a release of Sundance Resources Ltd, as explained in par 9 of Mr Porter's amended statement of claim.
Hence, the defendant's documents, so resolutely pursued on these applications, stand somewhat at the periphery of this commercial dispute if, indeed, they hold any potential relevance vis-à-vis Mr Porter's breach of contract and damages claims against the defendant at all.

The defence

I proceed to examine the re‑amended defence, as filed by the defendant, on 12 June 2015.
By way of a global summary the re‑amended defence:
(a)by pleas under par 5, disputes any perfection of an oral Agreement with Mr Porter of 8 June 2006, at least in the terms as are contended for by Mr Porter under par 5 of his amended statement of claim;
(b)nevertheless, counter‑contends, as I read it, for the making of a perfected contractual agreement with Mr Porter on or about 8 June 2006, which is defined at par 5(a)(v) of the re‑amended defence as the 'Defendant's Pleaded Agreement', of 8 June 2006. This Agreement is alleged to have been perfected by the defendant as between Messrs Porter, Bogne and Asso'o, with Mr Corr acting on behalf of the defendant.
The defendant's plea as to a somewhat distinct June 2006 agreement pleads for contractual terms said to have been 'oral and inferred'.
Relevantly to what is a close but, nevertheless, very different agreement plea by the defendant towards an 8 June 2006 agreement containing different terms, Sundance Resources Ltd contends, under its par 7(g), (h) and (i) of the defence, that:
(g)… pursuant to the Defendant's Pleaded Agreement, on 27 October 2006, the Defendant's board of directors:
(i)approved the making of applications for prospection permits and mineral exploration licences over the Avima Area and the Elogo Area; and
(ii)resolved that if mineral exploration licences over the Avima Area and the Elogo Area were granted to a company controlled by the Defendant to be established in the Republic of Congo, it would issue to each of the Promoters [namely, Messrs Porter, Bogne and Asso'o] 10 million options to acquire shares in the Defendant exercisable at 10 cents per option within three years from the date of issue;
(h)says that none of the Promoters nor a company controlled by the Defendant acquired the grant of mineral exploration licences over the Avima Area and the Elogo Area as approved by the Defendant;
(i)as a result of the matters pleaded in sub-paragraph 7(h) above, the Promoters failed to comply with the terms and conditions of the Defendant's Pleaded Agreement and the agreement terminated and was at an end.
Fundamentally then, the plaintiff and the defendant, by their current pleadings, both accept a perfection of a legally binding and enforceable June 2006 agreement involving Mr Porter and Mr Corr (for the defendant) that was negotiated at 8 June 2006, concerning a procuring of prospection permits and then exploration licences, in the northern border areas of the Republic of Congo (located to the south of the defendant's interest in a Mbalam iron ore interest it then held, in the south of the Republic of Cameroon). No issues of alleged contractual uncertainty, or the absence of a perfected contractual relationship, are thus far apparent from the pleadings.
The critical area of apparent difference, at least on the face of the pleadings, looks to be over the existence or otherwise of a contractual term of the June 2006 agreement(s) - concerning the actual geographical area(s) to be secured in the Republic of Congo for the defendant for an iron ore operation that could be run proximate to the Mbalam prospect in Cameroon.
The defendant pleads that its version of an 8 June 2006 agreement essentially came to an end by substantive non-performance and was terminated. This was because the defendant did not ever acquire the agreed upon mineral exploration licences over tenements located in the Avima or Elogo areas of the Republic of Congo, which it had approved and expected to receive.
On the other hand, the plaintiff's position is that he fully met and satisfied the terms of the parties' 8 June 2006 agreement - by procuring for the defendants the eventually held iron ore geographical licences as interests held by a subsidiary corporation of the defendant that was incorporated in the Republic of Congo. That corporation came, ultimately, to hold two mineral exploration licences in the Republic of Congo areas of Ibanga and Nabeba-Bamegod (see par 7.11 of the amended statement of claim). This was all he needed to have done, on Mr Porter's case, to meet the terms of the 'Agreement' negotiated in June 2006.
A clash over the contractual term issue concerning the true scope of the terms of the parties' 8 June 2006 agreement as to the required and approved exploration areas to be secured for the defendant in the Republic of Congo - is at the heart of what divides the parties in this dispute - at least as assessed from their current respective pleadings.
Nevertheless, the defendant also goes on by its par 7(j) (then incorporated by reference into its par 9) to raise what it defines at par 7(j)(ii), as its 'Other Agreement' of 2008.
Purporting to respond to pars 7.7 to 7.11 of the amended statement of claim, the defendant now pleads under its par 7(j), that:
(i)…
(ii)… the Defendant entered into another agreement with Bogne and Asso'o in or about October 2008, pursuant to which they were to receive different consideration for work that they had done in relation to the Defendant's acquisition of shares, in Congo Iron [a reference to the corporation Congo Iron (SA)] and in relation to the grant of mineral exploration licences to Congo Iron over the areas pleaded in paragraph 7.8 of the statement of claim [ie, to Ibanga and Nabeba-Bamegod] (the 'Other Agreement');
(iii)says that the Plaintiff was not a party to the Other Agreement [ie, Mr Porter was not a party to the so-called Other Agreement of October 2008 contended for as between the defendant and Mr Bogne and Mr Asso'o];
…
(vi)says that there was no agreement between [Mr Porter] and [Sundance] to issue options or any consideration to [Mr Porter] in connection with the application for and procurement of prospection permits for the areas pleaded at paragraph 7.8 of the Statement of Claim or for the grant of the mineral exploration licences pleaded at par 7.11 of the Statement of Claim; and
…

Then, by par 9 of the re‑amended defence it is further pleaded:
As to paragraph 9 of the Statement of Claim, the Defendant repeats paragraph 7 above and otherwise denies the allegations in the paragraph.
So essentially then, it can be seen that the defendant's pleas under par 7(j) are incorporated by reference into its par 9. There they, in effect, respond to the plaintiff's anticipatory plea by par 9 of the amended statement of claim, concerning the events of October 2008 - involving only Mr Bogne, Mr Asso'o and the defendant - and which are explicitly pleaded on both parties' cases not to extend to bind Mr Porter.
I need to add by way of further explanation concerning the pleaded defence that, in response to a 25 June 2015 request by the plaintiff, the defendant provided some more details concerning its plea under par 7(j)(ii) concerning the 'Other Agreement' of October 2008. By an answer to the request for particulars it has said at the answer under par 10, that:
As to paragraph 7(j)(ii) of the Re-amended Defence, the agreement with Bogne and Asso'o referred to in the sub-paragraph was evidenced in writing by:
(a)the written Circular Resolutions of the Defendant's board of directors dated between on or about 2 and 7 October 2008.
(b)the email from John Carr-Gregg to the Defendant's board of directors dated on or about 9 October 2008.
(c)the written Circular Resolution of the Defendant's board of directors dated between on or about 7 and 10 October 2008.
(d)the statement by Roger Bogne signed by Bogne and on behalf of the Defendant in or about October 2008.
(e)the statement by Serge Asso'o signed by Asso'o and on behalf of the Defendant in or about October 2008.
Hence, the defendant's answers under pars 10(d) and (e) as set out above, concerning 'statement(s)' by Mr Bogne or Mr Asso'o of October 2008, can be seen to be distinctly raised to 'evidence' the 2008 'Other Agreement', as is contended for by the Defendant.
Again, it is necessary to pause to repeat that Mr Porter's claim for damages for breach of contract proceeds, as pleaded, only upon the basis of his contended breach by the defendant of the version of the alleged oral agreement as he says was perfected by him with the defendant (by Mr Corr) of 8 June 2006. Hence, any subsequent contractual arrangements in October 2008 by way of compromise or the like by persons other than Mr Porter may once again be seen to rest significantly at the margins in terms of Mr Porter's case seeking damages for breach of the 2006 oral agreement.
Nevertheless, this application by Mr Porter seeks further documents concerning the unperfected, antecedent iterations or drafts of unexecuted versions of October 2008 deeds (or statements, co-called) concerning Mr Bogne and Mr Asso'o with the defendant.
It is necessary to turn back to those agreements which are put openly before me as attachments to the affidavit of Maha Chaar sworn 4 August 2015, as attachments MC3 and MC4 respectively (see pages 16, 17, 18 and 19 of that affidavit).

The October 2008 Bogne and Asso'o deeds

The two finished deeds are brief, similar in context, and undated. Each contains five clauses in almost identical terms.
For convenience, I will set out the terms of the deed, which are essentially identical, save for referring either to Mr Bogne or Mr Asso'o under the document heading. I do that noting that these so-called 'statements' look rather misdescribed by that term. On their face they would appear to be signed off, either by Mr Bogne and Mr Asso'o (respectively) on page 2, then executed for the defendant, in the case of the Bogne deed, by Mr Don Lewis as director, and in the case of the Asso'o deed, this again was by Mr Lewis as a director and also for this deed by a Mr John FC Carr-Gregg, the secretary of the defendant. The signature and corporate execution clauses on page 2 of that deed follow the phrase 'EXECUTED as a deed' - seen at the conclusion of page 1 of each of those documents.
Each deed is in terms:
Statement by Roger Bogne [or in the other document 'by Serge Asso'o'] for the benefit of Sundance Resources Limited and its representatives
1.I understand that at some stage in the negotiations regarding the grant of exploration licences to a subsidiary of Sundance Resources Ltd established in Congo, a suggestion was made that I would be entitled to options in Sundance Resources Limited.
2.I confirm that I irrevocably now accept, subject to any necessary shareholder approvals, Sundance Resources Limited's ex gratia offer of 5 million options exercisable at 25 cents from Sundance Resources Limited on the basis that such options vest (ie, become exercisable) upon and subject to: (i) definition of 100 million tonnes Reserves (as defined by the JORC Code) of + 60% iron grade hematite on the Exploration Permits 2007-362 and 2007-363 ('Exploration Permits'), and (ii) the Exploration Permits remaining valid and enforceable in respect of the area that they cover for iron ore (ie, no title risk or dispute).
3.I wish to confirm, as requested by Sundance Resources Limited, that I irrevocably waive any other entitlement that I may have had or been offered by Sundance Resources Limited or by anyone either on behalf of Sundance Resources Limited or third parties in relation to options or shares in Sundance Resources Limited. Further, I agree to discharge and release Sundance Resources Limited from all actions, suits, accounts, claims and demands whatsoever in respect of any entitlement I may have had in relation to options or shares in Sundance Resources Limited.
4.I also wish to confirm, at the request of Sundance Resources Limited, that I hold no direct or indirect interest in Congo Mining Investments SA, the Company that has been established to hold the interests of non-Sundance shareholders in Congo Iron SA and on behalf of which Olivier Fabrice-Sil has signed a letter agreement dated 19 September 2008 with Sundance Resources Limited in respect of the acquisition by Sundance Resources Limited of shares in Congo Iron SA from Cam Iron and Congo Mining Investments SA/Olivier Fabrice-Sil.
5.Finally, I confirm that I hold an indirect interest in Cam Iron SA and I understand that consideration is passing to Cam Iron SA through the execution of the letter agreement referred to above in paragraph 4 as Cam Iron is being relieved of expenditure obligations in Congo Iron which are being assumed by Sundance Resources Limited.
EXECUTED as a Deed.

Paragraph 2 of the plaintiff's chamber summons: application for production and inspection of documents and unredacted copies of documents

By par 2 of its chamber summons, the plaintiff seeks that the defendant:
2.Within 3 days from the date of this order, the Defendant do produce for the Plaintiff's inspection complete and unredacted copies of documents SDL-Congo-066-1, 066-2, 067, 067-1, 067-2, 068, 068-1, 068-2, 071, 071-1, 071-2, 072 and 072-1 (including any attachments thereto) from the list of discoverable documents verified by the affidavit sworn on 19 August 2013 by Brian Conrick on behalf of the Defendant (List of Documents).
By the time the application came on for hearing on 12 August 2015 the defendant had made some concessions. It had agreed to provide and did then provide at the hearing before me an unredacted copy of document SDL-Congo-072-1 (see also page 25 of Ms Chaar's affidavit sworn 4 August 2015). This is 'V4', or version 4, of a draft unexecuted copy of an earlier unexecuted iteration of the Bogne deed. The defendant openly provided document SDL-Congo-072, the email seen at page 25 of Ms Chaar's affidavit, as MC8. It is a document of 29 September 2008 from Mr Don Lewis of the defendant (then the managing director) to Mr John Carr-Gregg, of the defendant. An attachment to that email carried reference to '080929' (interpreted as 29 September 2008) referring to a statement of Roger Bogne V4muDL.docx. I assess reference to 'DL' to be a reference to Mr Don Lewis, and the preceding letters 'mu' as an abbreviation for 'mark-up'.
The email trail captured at pages 25 and 26 of Ms Chaar's affidavit actually commences with a redacted communication from Mr Carr-Gregg at 8.22 am. This was sent to a Ms Caroline Keats, who was a solicitor employed by Sundance's external legal advisers, Blakiston Crabb, to Mr Carr-Gregg under the heading 'Draft SDL memo - Congo Letter Agreement Porter Options v.5'. The balance of that email has been redacted.
Document SDL-Congo-072-1 (Version 4 with mark-ups by Mr Lewis as at 29 September 2008) shows itself as an earlier iteration of the Bogne deed under the heading 'Statement of Roger Bogne for the benefit of Sundance Resources Limited and its representatives'. It is unexecuted and undated. It shows some limited crossings out and insertions at pars 1 and 2.

Legal principles

There appears to be no challenge as between the parties about the underlying principle that a prior iteration of a draft document or, indeed, a draft pleading may be the subject of a valid claim for legal professional privilege - notwithstanding the ultimate version of the end document is openly discovered and produced. The reasoning underlying a subsisting privilege protection as regards earlier iterations and drafts, is that a disclosure may indirectly reveal the underlying legal advice received concerning the parties' positions in an evolution of a draft document towards its eventual finality. There appears to be no argument of principle as between the parties over that issue: see Public Transport Authority (WA) v Leighton Contractors Pty Ltd [2007] WASCA 151; (2007) 34 WAR 279 [19], [24] and [32] (per McLure JA). See also AWB v Cole [No 5] [2006] FCA 1234; (2006) 234 ALR 651, 684 - 698; and Attorney‑General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475, 496 (Dawson J).
The emphasis of the plaintiff's attack, as I understood it, was on the basis of a contention of waiver effectively by reference to the emergence of a Version 2 of Mr Bogne's statement by Clyde & Co (see MC36 to Ms Chaar's affidavit sworn 4 August 2015), then Version 4 of Mr Bogne's statement as SDL-Congo-072-1. Hence, effectively, it was said there is no reason why all the other iterations of circulated drafts amongst the members of the defendant's board of directors or executives should not also be opened up and provided. I am unable to accept that contention.
On the basis of the affidavit of Jennifer Anne Thornton, sworn 10 August 2015, by reference to her evidence concerning the legal advice that was given and received by the defendant from its then external solicitors, Blakiston & Crabb, as she explains at pars 61, 65, 69, 70, 73 and 74, the basis to contend for the benefit of legal advice privilege concerning the remaining draft iterations attached to the emails, when circulated for discussion between members of the defendant's board, is both uncontradicted and convincing. Furthermore, I am unmoved at the end by the plaintiff's global waiver arguments as regards the V2 or V4 iterations or Mr Bogne's deed (statement). The reason for the disclosure of iterations V2 or V4 has been explained. Outsiders beyond the board of Sundance received three versions. But that does not lead to a conclusion that all other iterations and drafts have been opened to scrutiny. There is no relevant inconsistency in that position - informed by considerations of fairness.
Furthermore, in the overall scheme, it appears, with the trial less than a month away and the plaintiffs now holding for some time the final executed iterations of the two October 2008 deeds as executed by Mr Bogne and Mr Asso'o, that there really is very little forensic utility in this aspect of the application. Mr Bogne and Mr Asso'o have not provided witness statements for the purposes of the looming trial. For the plaintiff, witness statements have been exchanged from Mr Porter and Mr Corr. For the defendant, I have only received two non-expert witness statements on the part of Mr George Jones and Mr Alex Pismiris. Consequently, there appears to be no looming witness evidence at the trial foreshadowed by either party by either Mr Bogne or Mr Asso'o as witnesses (their documents, if any, may be another matter).
Given the somewhat marginal relevance at best of even the finalised October 2008 'Other Agreement' - in the overall context of Mr Porter's anticipatory reference in his amended statement of claim to something approaching it (under his par 9), and the defendant's explicit reference to its 'Other Agreement' at par 7(j)(ii) - the overall utility of the materials pressed for disclosure on this application appears to sit very much at the margins of this litigation in any event. Of course, I express no final views about that.
I have decided in the context of resolving this application that it would not be appropriate for me to call for or inspect the documents pressed for on the basis that (a) I consider this, overall, to be unnecessary; and (b) as the putative trial judge, I consider it unwise to take that course, bearing in mind the imminence of the looming trial.
For those reasons, the plaintiff's application seeking production and inspection of the documents as are identified in par 2 of its chamber summons is wholly dismissed. The costs of the application can be reserved to the trial.