Shahin v City of Burnside

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
SHAHIN v CITY OF BURNSIDE
[2025] SASC 177
Decision of the Honourable Associate Justice Bochner
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION OF DOCUMENTS - GROUNDS FOR RESISTING PRODUCTION - PRIVILEGE
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION OF DOCUMENTS - GROUNDS FOR RESISTING PRODUCTION - PRIVILEGE - CLIENT LEGAL PRIVILEGE - WAIVER OF PRIVILEGE
Waiver of legal professional privilege.
Kadlunga Proprietors & Ors v Electricity Trust of South Australia & Ors (1985) 39 SASR 410; Mann v Carnell (1999) 201 CLR 1; DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; Esso Australia Resources Pty Ltd v BHP Billiton Petroleum (Bass Strait) Pty Ltd [2007] VSCA 224; Johnstone, McGee & Gandy Pty Ltd v Hockey Tasmania Incorporated [2012] TASSC 12; Elders Forestry Ltd v Bosi Security Services Ltd & Ors (No 2) [2010] SASC 226; Glenn Anthony Crisp as liquidator of ACN 069 895 585 Pty Ltd (In liquidation) v ACN 069 859 585 Pty Ltd (In liquidation) & Anor [2012] FCA 148; Nicolau v Truman Facilities Pty Ltd [2014] NSWSC 1459, considered.

SHAHIN v CITY OF BURNSIDE
[2025] SASC 177

The applicant in this action seeks damages which are directly referable to the legal fees that he incurred in bringing two claims against his neighbours, Mr and Mrs Raedel. I will refer to this litigation jointly as “the Raedel action”. I have described the litigation between the applicant and Mr and Mrs Raedel and the basis for this action in the reasons that I published on 14 March 2024. I will not repeat these details here.
A dispute has now arisen between the parties as to the discoverability of the applicant’s lawyers’ files from the Raedel action. The applicant has discovered them in a generic fashion and has claimed legal professional privilege over them. This has given rise to two questions: the first, whether each document must be individually described by way of a Kadlunga list; and the second, whether the applicant has waived privilege over them.
The first question can be answered very quickly.
Since 1985, it has been established practice in South Australia to provide a list, when requested, describing documents over which legal professional privilege is claimed. It was held in the case of Kadlunga Proprietors & Ors v Electricity Trust of South Australia & Ors[1] that the description of such documents should be sufficient to identify each document and the basis on which the privilege is claimed. White J said:
The subject of discovery involves two separate concepts, that of identification and that of description. Date may relate to either or both.
The purpose of identification is not in dispute: it is to permit a court to order, or the party seeking discovery to request, production of particular identifiable documents in a list in case of a later dispute about the claim, e.g. Document 16 dated 15th June, 1980 in Bundle IS, &c. What is in issue is the adequacy of the description.
The party seeking discovery is bound by the description of documents given in his opponent's affidavit or list. He cannot challenge the bona fides or truth of that description. In this sense the party seeking discovery is entirely in the hands of the other as to the latter's proper categorisation of a document as a privileged document. In this sense the discovery procedure should not be contentious. And any dispute about the correct categorisation of a document must ordinarily be left to the trial.
However, it is entirely proper for the party seeking discovery to challenge the ground upon which privilege is claimed for any particular document, and to question, at the discovery stage, whether that particular document as described could qualify for protection upon that ground. … Accordingly it is both necessary and desirable that the description of a particular document for which protection is claimed should be sufficient to disclose quite readily (without disclosing contents) whether or not it is in fact a document to which the head of privilege relied upon can extend.[2]
[1] (1985) 39 SASR 410.
[2] Ibid, 414.
This requirement did not change with the commencement of the Uniform Civil Rules 2020. The relevant rule is UCR 73.3, which provides:
73.3—Form and content of list of documents
(1)This rule applies unless the Court otherwise orders or the parties unanimously otherwise agree.
(2)     A list of documents must, subject to subrules (3), (4) and (5)—
(a)     list each discoverable document in the person’s possession, custody or power in respect of which no claim of privilege is made;
(b)     list each discoverable document in the person’s possession, custody or power in respect of which a claim of privilege is made, identifying the nature of the privilege and ground on which it is claimed and describing the document in sufficient detail that it can be identified and the fact that it is privileged is apparent from its description; and
(c)     list each discoverable document that was in the person’s possession, custody or power, describing it in sufficient detail that it can be identified and identifying when it left the person’s possession custody or power, where it went and where it is now believed to be.
(3)     A document need not be discovered in a list of documents if—
(a)     it is a copy of a document that has been discovered and there is no evidentiary significance in the fact or content of the copy;
(b)     it is a communication or record of a communication between parties (personally or by their lawyers) after institution of the proceeding; or
(c)     it has been filed in the proceeding.
(4)     A list of documents may list a bundle of documents as a single item if—
(a)     it comprises a physical or electronic file of documents that was kept as a file before, or other than for the purpose of, the proceeding; or
(b)     the documents are of a homogenous character.
(5)A privileged document need not be discovered separately if it is encompassed by a generic description of—
(a)     communications and records of communications between a person and the person’s lawyer for the dominant purpose of legal advice or representation in the proceeding;
(b)     drafts of documents prepared for the dominant purpose of legal advice or representation in the proceeding; or
(c)     opinions or advices of counsel.
(6)Unless the Court otherwise orders or the parties unanimously otherwise agree, a list of documents must be in the appropriate prescribed form for a separate list of documents.
Prescribed forms—
Form 73A List of Documents – Physical Protocol
Form 73B List of Documents – Simple Electronic Protocol
Form 73C List of Documents – Complex Electronic Protocol
(7)     A list of documents must number sequentially each document in the list.
(8)Each discovered document in the person’s possession, custody or power must be marked with the corresponding number.
(9)Subject to subrules (4) and (5), a list of documents must list documents in chronological order and undated documents must be placed in the best approximation of their chronological order.
(10)A person filing a list of documents must, by the person’s solicitor if represented or by the person if not represented, certify the list of documents in accordance with the prescribed form.
(11)Unless the Court otherwise orders or the parties unanimously otherwise agree, a list of documents must be prepared in accordance with the physical protocol.
Documents for which legal professional privilege is claimed need not be individually identified if they fall within three generic descriptions, as set out in UCR 73.3(5). Two of those three specifically provide that, to fall within the generic description, they must have been prepared “in the proceeding”. The third category does not contain such a limitation. Whether the same limitation extends to the third category by necessary implication is not a matter that I will consider in these reasons, as it has not been argued by the parties.
The use of the definite article in the phrase “in the proceeding” indicates that the generic description is available only to documents which have been prepared in the action in which discovery is being made. It does not extend the generic description to documents prepared in other proceedings. If this was the intention of the rule, then the indefinite article, as in the phrase, “in a proceeding” would have been used. I consider that, if a party wishes to claim legal professional privilege over documents which were prepared in another action, those documents must be specifically described, as required by Kadlunga.
This leads to the conclusion that the applicant is in default of his discovery obligation.
The second question requires more detailed consideration.
The respondent says that the applicant has waived legal professional privilege over the files relating to the Raedel action by the very nature of the action that he has brought. It says that waiver has occurred because the applicant has put in issue his state of mind about his rights and his consequent need to commence the Raedel action. The damages sought are directly reflective of the legal costs that he incurred in that action, and which are not recoverable from the Raedels. I note that the legal costs that the applicant incurred in the Raedel action are high, in excess of $1,300,000. While taxation of those costs has not concluded, it is likely that the unrecoverable portion will be substantial.
In its submissions, both written and oral, the respondent set out at length the paragraphs of the Statement of Claim – Revision 2[3] (“the statement of claim”) on which it relies in support of its claim of waiver. I will not recite them in full, but give the following examples.
[3] FDN 49.
From [49] of the statement of claim, the applicant alleges that representatives of the respondent made representations to the applicant’s then lawyer. He pleads that the respondent’s representatives knew that the lawyer was meeting with them on behalf of the applicant and that the lawyer would report the conversation to the applicant who would rely on the representations made in that conversation.[4] He then pleads that he did in fact believe and rely on the representations made, which led him to commence the District Court action and the ERD Court action against the Raedels.[5]
[4] Ibid, [51.3].
[5] Ibid, [52] – [59].
After setting out allegations about the respondent’s negligent failure to act, the applicant goes on to plead that he was unable to protect himself from the consequences of the Council’s want of reasonable care: he was reliant on the respondent properly carrying out its duties in relation to the approval of the Raedels’ development applications. The respondent failed to take steps in relation to the Raedels’ breach of the planning requirements relating to the retaining wall.[6] As a result, the applicant was “forced to issue proceedings”.[7]
[6] Ibid, [67.3].
[7] Ibid, [70.3].
The respondent says that this pleading (among others) and his claim for recoupment of his legal costs as damages, calls into question the entire conduct of the Raedel action, including:
·The conduct of his lawyers in conveying the respondent’s representations to him;
·The advice given by his lawyers about those representations and the options available to him;
·The applicant’s own understanding of the development process that had occurred with respect to the retaining wall and whether a cause of action was created that he could pursue; and
·Whether it would have been more advantageous to bring only one action rather than two.
The respondent says that the effect of the applicant’s statement of claim is to put the conduct of his lawyers and his interactions with him in the centre of this action. The pleading directly raises the applicant’s state of mind and the reasons for the decisions that he made. The legal advice given to him by his lawyers in this regard must be highly relevant to those matters, and by pleading as he has, he has waived privilege over the files relating to the Raedel action.
I note that the respondent puts in issue the representations made by its representatives to the applicant’s lawyers and says that the applicant took the action that he took on the basis of expert legal advice, rather than reliance on the matters told to his lawyers by representatives of the respondent. In fact, it denies the reasonableness of any reliance on the representations said to have been made by its representatives in the circumstances in which they were made. It further pleads, amongst other things, that the legal costs incurred by the applicant were unreasonable and excessive and were incurred voluntarily with the benefit of legal advice, including advice about the recoverability of his legal costs in the event of his success at trial.
The applicant says that the respondent has mischaracterised the case that he brings. He says that it is a case of negligent misstatement by the respondent: the respondent made representations to the applicant, which he acted upon. The representations were in fact wrong. The applicant relied on those representations, not on legal advice, in taking the steps that he took. He makes no claim that he relied on legal advice and the statement of claim makes no express reference to legal advice, nor is there an implicit assertion that legal advice was obtained.
The applicant says that his legal files created for the purpose of the Raedel action are protected by legal professional privilege. Mere relevance does not lead to waiver of these documents. Nor is the question whether he has put his state of mind in issue. Rather, the question is whether the contents of privileged communications have been put in issue, and whether there is an inconsistency between the maintenance of the privilege and the claim itself. While legal advice may have affected his state of mind, that advice remains protected by legal professional privilege. The applicant does not plead any reliance on legal advice, only on the representations made by the respondent’s representatives.
Both parties relied on the leading authority on waiver, Mann v Carnell[8], in support of their arguments. In that case, the majority said:
At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received.
Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.[9]
(Footnotes omitted)
[8] (1999) 201 CLR 1.
[9] Ibid, [28] – [29].
The difference between the parties is whether the applicant’s conduct is inconsistent with the maintenance of privilege. In DSE (Holdings) Pty Ltd v Intertan Inc[10], Allsop J (as he then was) explained the principle arising from Mann v Carnell in the following way:
Waiver at common law occurs where the party entitled to the privilege performs an act which is inconsistent with the maintenance of the confidentiality, assessment of such inconsistency being informed, where necessary, by considerations of fairness; though the assessment is not by reference to some overriding principle of fairness operating at large: Mann v Carnell, supra at [29].[11]
He went on to say:
A pleading of state of mind is raised. It is accepted that there are opened for scrutiny by that pleading confidential and privilege communications materially affecting or contributing to that state of mind. The inconsistent act is the propounding of the issue which, it is accepted, opens up, or makes relevant, in the sense discussed by the majority in Telstra, an examination of the confidential communication.
… The inconsistency or unfairness arises from the putting in issue of a state of mind and maintaining confidence in communications which were relevant to the formation of that state of mind. (Or, putting the matter as I would prefer to put it – the inconsistency or unfairness arises from laying open to scrutiny the communication and maintaining confidence in the communication.)[12]
[10] (2003) 127 FCR 499.
[11] Ibid, [12].
[12] Ibid, [126] – [127].
The respondent says that the bringing of this claim expressly lays open an examination of the applicant’s conduct of the Raedel action. The damages sought are specifically and solely referable to the legal costs incurred in those actions; this must give rise to an entitlement to examine the manner in which the Raedel action was conducted to test whether the costs were reasonably incurred. This includes examining the advice that the applicant received from his advisers.
The respondent relies on the case of Esso Australia Resources Pty Ltd v BHP Billiton Petroleum (Bass Strait) Pty Ltd.[13] In that case, the parties were undertaking a joint enterprise at a facility which was owned jointly by them but operated by Esso. The agreement between them specifically addressed how expenditure was to be dealt with; in particular, it provided that expenditure was to be shared jointly unless it related to loss or damage caused by the gross negligence or wilful misconduct of Esso. Following an explosion and fire at the facility, “Esso claimed reimbursement of half of its legal costs associated with the explosion and fire, including the costs of defending itself at the Royal Commission of Inquiry into the event and of defending itself against the criminal charges and civil claims arising from it.”[14] The legal fees claimed were in the millions of dollars. BHP refused to pay half of the legal fees on the basis that the loss was caused by (among other things) Esso’s gross negligence. Esso claimed privilege over the documents related to its claim for reimbursement of its legal costs. The Court said:
[13] [2007] VSCA 224.
[14] Ibid, [5].
In our view, his Honour correctly treated the case as calling for an orthodox application of the principles clearly enunciated in Carnell. Applying Carnell, the issue which his Honour had to decide was whether Esso’s conduct in pleading its claim for reimbursement of legal costs was inconsistent with the maintenance of confidentiality in documents relevant to that claim. If it was, privilege had been waived. If it was not, there was no waiver. Either way, no question of ‘election’ arose.
That a party may waive privilege by the mere institution of proceedings is not in doubt. The second of two examples of implied waiver given by the High Court in Carnell was that of a client instituting proceedings against a lawyer for professional negligence. By that conduct, the client waives privilege, and the lawyer can give evidence as to advice given to the client. The case cited in Carnell was Lillicrap v Nalder & Son (a firm), in which Dillon LJ adopted the following formulation of the scope of the implied waiver:
A client who sues his solicitor invites the court to adjudicate the dispute and thereby … waives privilege and confidence to the extent that is necessary to enable the court to do so fully and fairly in accordance with the law including the law of evidence.
Russell LJ proposed the following test:
… [B]y bringing civil proceedings against his solicitor, a client impliedly waives privilege in respect of all matters which are relevant to the suit he pursues and, most particularly, where the disclosure of privileged matters is required to enable justice to be done.
It could hardly be doubted that disclosure of Esso’s privileged documents is required ‘to enable justice to be done’ between itself and Esso. In its written submissions before the primary judge, Esso acknowledged that in order to succeed on its counterclaim it would need to prove in respect of each ‘claimed expenditure’ on legal costs that it was –
(a)     incurred as a result of the Longford incident;
(b)     made ‘for the joint undertaking’ within the meaning of the operating agreement;
(c)     reasonably incurred; and
(d)     not incurred as a result of Esso’s gross negligence.
Improbably, however, senior counsel for Esso declined to concede before us that he would, at trial, need to tender at least some of the privileged documents in order to prove Esso’s case for reimbursement. He even refused to concede that counsel for BHP would be entitled to inspect the privileged documents in order to be able to test – and contest – the reimbursement claim. It would not, he argued, be unfair to deny BHP that opportunity. It is self-evident, in our view, that it would be grossly unfair. As the High Court made clear in Carnell, the application of the inconsistency test should “where necessary [be] informed by considerations of fairness”.
In our view, the position here is relevantly similar to that in Rio Tinto. In particulars filed in the tax appeal proceeding, the Commissioner said that he had taken into account matters in the privileged documents in coming to the impugned assessment decision. In doing this, the Full Court said, the Commissioner did more than concede the relevance of the privileged documents; he put their contents in issue. He ‘[laid] open the privileged documents to scrutiny’.
Esso’s counterclaim puts in issue whether its expenditure on legal costs fell within the operating agreement and that, in turn, depends on the nature and purpose of the legal work which occasioned the payments. The documents in question are plainly relevant to these issues. By making its claim for reimbursement, Esso made an assertion about the contents of the documents. Esso thereby laid the documents open to scrutiny. It would plainly be inconsistent for it now to maintain a claim for confidentiality in respect of them, even if we accepted the possibility that Esso might choose not to rely on the documents in the proceeding.[15]
(Footnotes omitted)
[15] Ibid, [13] – [18].

The respondent says that this case is directly analogous to the circumstances of this matter. It further relies on Johnstone, McGee & Gandy Pty Ltd v Hockey Tasmania Incorporated[16], where Blow J (as he then was) said:
A client who is entitled to claim legal professional privilege is taken to have impliedly waived that privilege if the client engages in conduct which is inconsistent with the maintenance of confidentiality: Mann v Carnell (1999) 201 CLR 1 at par[28]. When a claim is made in an action for the reimbursement of costs payable to a solicitor, and the reasonableness or otherwise of the solicitor's charges is an issue in the action, the pursuit of that claim is inconsistent with the maintenance of the confidentiality of solicitor/client communication protected by legal professional privilege. In Esso Australia Resources Pty Ltd v BHP Billiton Petroleum (Bass Strait) Pty Ltd [2007] VSCA 224, Esso was pursuing a contractual claim for the reimbursement of certain legal costs. In order for its claim to succeed, it needed to establish the purpose for which the costs were incurred, and that they were reasonably incurred. The Victorian Court of Appeal held that the making of the claim laid the privileged documents open to scrutiny, and that it would be inconsistent for Esso to maintain a claim for confidentiality in respect of them. On that basis, it held that Esso had impliedly waived privilege.
…
If Hockey Tasmania were pursuing its damages claim in respect of legal costs, however misconceived, I would have no hesitation in holding that it was no longer entitled to claim privilege in respect of documents relevant to the quantum or reasonableness of such costs. But the damages claim in respect of legal costs was made by mistake, and has been abandoned. In the words of Allsop J, there is now no forensic unfairness in allowing Hockey Tasmania's claim to proceed without disclosure of the communications in question. In my view the making and abandonment of a misconceived claim is not inconsistent with the maintenance of the confidentiality of solicitor/client communications which legal professional privilege exists to protect, at least when the abandonment occurs before the completion of the discovery process. The position would be different if a misconceived claim had been made and not abandoned when the time came for a court to determine a disputed privilege claim. But that is not the case here. In the present circumstances, I consider that there has not been an implied waiver of privilege.[17]
[16] [2012] TASSC 12.
[17] Ibid, [22] – [25].
The applicant, on the other hand, relies on the case of Elders Forestry Ltd v Bosi Security Services Ltd & Ors (No 2).[18] In this matter, the parties were in dispute over who had rights of ownership of shares in a joint venture company. It was the defendant who asserted legal professional privilege over documents which record legal advice about the terms of the shareholders’ deed. Kourakis J (as he then was) explained the principle arising from Mann v Carnell in the following terms:
[18] [2010] SASC 226.
In Mann v Carnell, the High Court held by majority that legal professional privilege is waived by the conduct of a person entitled to the benefit of that privilege which is inconsistent with the maintenance of the confidentiality the privilege entails. The privilege is a common law privilege and for that reason inconsistency is the touchstone for waiver; considerations of fairness may inform the question as to whether the conduct is inconsistent but is not, as might be the case in equity, a central consideration. The test of inconsistency emphasises the purpose for which the privilege exists. In my respectful opinion, even though McHugh J was in dissent in Mann, the general principle that the operation of the privilege should generally be confined to that which is necessary for its rationales to be achieved should also inform the question of whether there has been conduct inconsistent with maintenance of the privilege.[19]
(Footnotes omitted)
After a review of the authorities, he went on to say:
Plainly, in this case BOSI does not rely on the advice to establish a claim, nor does it depend on the advice to show that it has a particular character, for example that it was negligent. However, a real question arises as to whether or not there is an analogy in this case with undue influence cases. In my view, the observation of Jordan CJ on the waiver of privilege in undue influence cases is, with respect, sound for the following reason. The mere fact that legal advice was obtained on a document is a fact on which an inference, and probably a conclusion, can be drawn that the transaction was entered into voluntarily and with a full appreciation of its terms. If a party persists in a plea of undue influence where the pleading or the evidence shows that legal advice was obtained on the transaction prior to the party binding herself or himself to it, the party must necessarily allege some deficiency in the legal advice. It is for that reason that maintaining a claim to legal professional privilege over the communications is inconsistent with that party’s case. The same cannot be said with respect to advice about the meaning of the terms of a transaction on which a party consults a solicitor. The Court in Rio Tinto emphasised that the decision of the majority in Telstra expressly made reference to the importance of the legal advice given in that case in assessing “the quality of the party’s assent to a transaction”. In particular, the Full Court went on:
As their Honours made clear, however, when they spoke of a communication ‘material to the formation of that state of mind’, they did not intend to say that privilege would be waived in relation to advice that may only have played a part in the formation of a state of mind relevant to an issue in the proceedings: see Telstra at 167. Their conclusion that BT waived privilege turned entirely on the particular nature of the case, especially BT’s pleadings.[20]
(Footnotes omitted)
[19] Ibid, [13].
[20] Ibid, [22].
The applicant says, similarly, the pleadings in this matter do not raise as an issue the content or nature of the legal advice he received for the purpose of the Raedel action. He expressly seeks to distinguish Esso on the basis that he relied only on the representations made by the respondent and nothing else.
The applicant relies on Glenn Anthony Crisp as liquidator of ACN 069 895 585 Pty Ltd (In liquidation) v ACN 069 859 585 Pty Ltd (In liquidation) & Anor.[21] In this case, which dealt with the remuneration of a liquidator, Jessup J confined Esso to its facts and said:
The proceeding as such is not concerned with the contents of the documents over which privilege would lie as such. For example, the question whether it was reasonable for the plaintiff to obtain, and to pay for, legal advice at a particular point does not necessarily put in issue the nature of the advice received. It may be that IAL would want to test the question of the necessity of obtaining advice by reference to observations, for example, which appear in the advice as given, but the content of the advice would not be regarded as an integer of the plaintiff’s case. It would not be that case, as such, which involved a laying open to scrutiny of those contents.
That is not to say that there may not be instances – perhaps many instances – in the various documents over which a privilege claim has been made by the plaintiff where it could be demonstrated, by reference to what is known about the document and the circumstances surrounding its creation, that the claim had been waived. However, IAL’s case on the present occasion specifically eschewed any suggestion that the court should approach its present interlocutory application on a document by document basis. It was submitted that the very nature of the plaintiff’s claim for remuneration and expenses involved a waiver of all legal professional privilege that might otherwise lie. To take such an approach would, in my view, be inconsistent with Rio Tinto. The relevance of documents to an assertion made or a proposition advanced in a particular proceeding is not, of itself, sufficient to give rise to a waiver of the kind presently under discussion. The assertion or proposition must be such as puts in issue the contents of the documents as such. Quite clearly, the plaintiff has not yet taken that step in the present case.[22]
He further relies on Nicolau v Truman Facilities Pty Ltd.[23] In this case, Hidden J said:
Drawing upon Mann v Carnell, the crucial question is whether the plaintiffs' pursuit of their claim, in which there is a live issue as to causation, is inconsistent with the maintenance of the confidentiality of their communications with Diamond Conway in the Loucas proceedings.[24]
[21] [2012] FCA 148.
[22] Ibid, [9] – [10].
[23] [2014] NSWSC 1459.
[24] Ibid, [32].
I note that in that case, the defendant accepted that the legal costs incurred by plaintiff were reasonably incurred.
I consider that this is a case, like Esso, where the applicant’s claim against the respondent is inconsistent with the maintenance of the confidentiality of the documents created in the course of the Raedel action. Despite the applicant’s very careful attempt not to raise the question of the legal advice that he received, it is clear from the statement of claim that the applicant had retained lawyers and acted through them from at least May 2014. In particular, the meeting at which the respondent’s representatives are said to have made the misrepresentations was with the applicant’s lawyer; at the very least, given the dispute as to the nature of the representation actually made, the maintenance of confidentiality over the communications between the applicant and his lawyer about those representations is inconsistent with the applicant’s conduct in bringing this action which is based on those very representations.
To say that this action is not about legal advice, but is, rather, about the representations made by the respondent is over-simplifying the matter. The entire action is based on representations made to the applicant’s lawyer and the consequences that flowed. The content of the representations is disputed by the respondent as is the reasonableness of reliance on those representations in the circumstances in which they were made. The only way that this defence can be tested is by examination of the communications that passed between the applicant and his lawyers on the subject.
The applicant’s plea that he was “forced” to bring the Raedel action also puts in issue the advice that he received. The respondent specifically puts this plea in issue and is entitled to test it.
Given that the entirety of the applicant’s claim is for the recovery of legal costs that are not covered by the costs orders in his favour, I consider that the applicant has (perhaps inadvertently) put in issue the advice that he received on the question of legal costs and their recoverability. This is particularly in light of the respondent’s plea of voluntary assumption of risk. While I accept that the respondent cannot unilaterally raise issues that would lead to the waiver of privilege by the applicant, this is not such a situation. The applicant has expressly put in issue the recoverability of his legal costs and the respondent is entitled to explore the advice that he received in this regard.
I consider that the case of Crisp is not relevant to this action. The question of a liquidator’s remuneration (or, indeed, a taxation of legal costs) is in no way similar to an action brought to recover legal costs as damages. As in Esso, I find that, by bringing the claim for reimbursement of his legal costs, the applicant has made an assertion about the basis on and the manner in which those costs were incurred. It would be inconsistent to allow him to maintain confidentiality over the very documents that will allow him to make out (or conversely, the respondent to impugn) his claim.
I note that, in oral submissions, counsel for the applicant said that the applicant would provide all documents relating to quantum once the taxation of costs was complete. He said:
Yes. I mean, it will be what was put before the court for adjudication, the result of the adjudication, my client’s legal bills to make up the amount that was claimed in the statement of claim.[25]
[25] T63.4-7.
It seems to me, however, that this is only part of the story. It may be that the applicant’s lawyers misunderstood the representation made by the respondent, or conveyed it erroneously to the applicant, or indeed, advised the applicant not to proceed with the Raedel action because of the costs that would be incurred. While these questions do not go to the Raedels’ liability to the applicant, they clearly go to the respondent’s. I consider that the applicant has put in issue, and the respondent is entitled to inspect, the documents which led to the applicant’s decision to commence the Raedel action and then to prosecute it in the way that he did, including advice about the representation made by the respondent.
The applicant relied on the case of Elders Forestry Ltd. I have already set out the following words from the decision of Kourakis J, but it is worth setting them out again:
If a party persists in a plea of undue influence where the pleading or the evidence shows that legal advice was obtained on the transaction prior to the party binding herself or himself to it, the party must necessarily allege some deficiency in the legal advice. It is for that reason that maintaining a claim to legal professional privilege over the communications is inconsistent with that party’s case.[26]
[26] [2010] SASC 226, [22].
While this is not a case of undue influence, it is clear that there is a close analogy. The applicant makes a plea of reliance on a misrepresentation, where it is apparent that the representation was made, not to him, but to his lawyers, who then advised him about it. The maintenance of a claim for legal professional privilege over these communications is inconsistent with the claim that the applicant now pursues.
The applicant must file a further list of documents which complies with the requirements of Kadlunga. It is not possible to say at this stage whether privilege has been waived with respect to entirety of the applicant’s files. However, I expect the applicant to make discovery in Schedule 1 of his revised list all documents which fall within the documents that are described in these reasons, and for the balance of the files to be disclosed in Schedule 2 with a description of each document which is sufficient to identify it and the basis on which privilege is claimed.

[2025] SASC 177

22 October 2025