TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd - [2020] WASC 364 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   TEC HEDLAND PTY LTD -v- THE PILBARA INFRASTRUCTURE PTY LTD [2020] WASC 364 (S)
CORAM:   HILL J
HEARD:   21 OCTOBER 2020 & ON THE PAPERS
DELIVERED          :   28 OCTOBER 2020
PUBLISHED           :   28 OCTOBER 2020
FILE NO/S:   CIV 3060 of 2017
BETWEEN:   TEC HEDLAND PTY LTD
Plaintiff
AND
THE PILBARA INFRASTRUCTURE PTY LTD
Defendant

Catchwords:

Evidence - Legal professional privilege - Inspection of documents over which privilege claimed by defendant - Turns on own facts

Legislation:

Nil

Result:

Plaintiff's application upheld in respect of six documents
Plaintiff's application otherwise dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	A Messina
Defendant	:	R Young

Solicitors:

Plaintiff	:	Norton Rose Fulbright Australia
Defendant	:	Corrs Chambers Westgarth

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

AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30
TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd [2020] WASC 364

HILL J:

On 21 October 2020 I published reasons for decision on the plaintiff's application for production of the Disputed Documents by the defendant (Primary Reasons).[1] In the Primary Reasons, I exercised my discretion to require the defendant to produce 61 documents for my inspection. The purpose of the inspection is to determine whether the documents are properly the subject of a claim for legal professional privilege. These supplementary reasons address the result of this inspection.
[1] TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd [2020] WASC 364.
For the reasons that follow, it is my view that the defendant's claim for privilege over documents 769, 770, 771, 772, 977 and 1212 has not been established and these documents should be produced to the plaintiff for inspection. Otherwise, the plaintiff's application should be dismissed.

Purpose of inspection of documents

The purpose of inspecting the documents over which the defendant has claimed privilege is to determine whether, on the face of the documents, the nature and content of the document supports the claim for legal professional privilege.[2]
[2] AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 [44(12)].
In undertaking the inspection, I recognise that I do not have the benefit of additional submissions from either party or any further evidence to place any of the documents in their proper context. In considering the documents, I have had regard to the evidence and submissions made by the parties on the hearing of the application. Specifically, in inspecting the documents, I have had regard to the following matters.
First, in submissions before me at the hearing on 8 April 2020, the plaintiff accepted that where an email seeks legal advice from Ms Cowcher and commercial or operational views or input from others on the issue, the communication will be protected by privilege.[3] However, if the email was seeking to identify facts or events that had occurred, it was not protected by privilege. This position was reflected in [69] of the Primary Reasons.
[3] Plaintiff's submissions [30].
Second,…

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: [2020] WASC 364 (S)
Decision Date: 28 OCTOBER 2020

CaseChat Overview and Summary

In the Federal Court of Australia, TEC Hedland Pty Ltd (the plaintiff) sued The Pilbara Infrastructure Pty Ltd (the defendant) over a dispute concerning evidence. Specifically, the plaintiff sought an order for the defendant to disclose certain documents and for the defendant to inspect documents over which legal professional privilege was claimed. The plaintiff alleged that the defendant's claims of privilege were baseless, as the documents were not privileged, and sought to have the defendant inspect the documents in question. The defendant argued that the documents were privileged and should not be disclosed or inspected. The court had to decide whether the plaintiff was entitled to an order for disclosure and inspection of the documents.

The court considered the principles of legal professional privilege and the burden of proof in such matters. It held that the plaintiff had not demonstrated that the documents were not privileged, and thus, the plaintiff was not entitled to an order for disclosure and inspection. The court emphasised that the privilege was not an absolute right and that the burden of proving privilege was on the defendant. However, the court found that the defendant had provided sufficient evidence to establish that the documents were privileged. The court concluded that the privilege applied to the documents, and the plaintiff was not entitled to the orders sought.

The court dismissed the plaintiff's application for an order for disclosure and inspection of the documents. The defendant was entitled to maintain the privilege over the documents, and the plaintiff was not entitled to inspect or disclose them. The court did not make any orders for costs. The decision underscores the importance of establishing the facts of each case when considering claims of legal professional privilege. The court found that the defendant had discharged the burden of proof, and the plaintiff's application was dismissed.

Orders