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TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd

TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd

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Case Copied 28 October 2020 73 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   TEC HEDLAND PTY LTD -v- THE PILBARA INFRASTRUCTURE PTY LTD [2020] WASC 364
CORAM:   HILL J
HEARD:   8 APRIL 2020
DELIVERED          :   21 OCTOBER 2020
FILE NO/S:   CIV 3060 of 2017
BETWEEN:   TEC HEDLAND PTY LTD
Plaintiff

AND

THE PILBARA INFRASTRUCTURE PTY LTD
Defendant

Catchwords:

Practice and procedure - Discovery - Inspection of discovered documents - Claim of legal professional privilege over documents - Proper approach to multi-addressee emails

Practice and procedure - Discovery - Legal professional privilege - Where legal advice disclosed - Extent of waiver

Practice and procedure - Discovery - Implied waiver including by filing evidence on this application - Defendant has not put its state of mind in issue - No implied waiver

Legislation:

Rules of the Supreme Court 1971 (WA), O 26, r 9 and r 12

Result:

Inspection of certain documents ordered
Plaintiff's application otherwise dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	S Doyle QC & A Messina
Defendant	:	B Dharmananda SC & R Young & S Tomasich

Solicitors:

Plaintiff	:	Norton Rose Fulbright Australia
Defendant	:	Corrs Chambers Westgarth

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

Archer Capital 4A Pty Ltd v Sage Group Plc (No 2) [2013] FCA 1098; (2013) 306 ALR 384
Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475
AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30
AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382
Balabel v Air-India [1988] 1 Ch 317
Barnes v Commissioner of Taxation (Cth) [2007] FCAFC 88; (2007) 242 ALR 601
Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101
British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197; (2002) 7 VR 524
Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181
CMA Assets Pty Ltd v John Holland Pty Ltd [No 3] [2012] WASC 501
Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501
Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266
Commissioner of Taxation (Cth) v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404
Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341
Commonwealth v Temwood Holdings Pty Ltd [2002] WASC 107
CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48
Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325
DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191; (2003) 135 FCR 151
Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management & Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303
Galway v Constable [2001] QSC 180; [2002] 2 Qd R 146
Grant v Downs…

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
Decision Date: 28 OCTOBER 2020

CaseChat Overview and Summary

TEC Hedland Pty Ltd, the plaintiff, filed an action against The Pilbara Infrastructure Pty Ltd, the defendant, over a dispute concerning the discovery of documents. The plaintiff sought an order to inspect certain documents held by the defendant, asserting that they were relevant to the proceeding. The defendant opposed this application, claiming that some of the documents were protected by legal professional privilege. The case was heard by the Supreme Court of Western Australia. The court had to determine whether the plaintiff was entitled to inspect the contested documents and whether the defendant had waived the legal professional privilege over those documents.

The court examined the nature of multi-addressee emails and their implications for legal professional privilege. It considered whether the disclosure of legal advice in such emails constituted a waiver of privilege. The court also assessed whether the defendant's actions, including the filing of evidence in the application, implied a waiver of privilege. The court found that while the disclosure of legal advice in multi-addressee emails could potentially lead to a waiver of privilege, the defendant had not contested the state of mind necessary to establish an implied waiver. Therefore, the court ruled that there was no implied waiver of privilege in this case.

The court ordered that the plaintiff could inspect the contested documents, as the defendant had not successfully claimed legal professional privilege over them. The plaintiff's application for broader discovery was dismissed, as the court found that the defendant had not impliedly waived the privilege over the documents in question. This decision highlights the importance of carefully considering the implications of multi-addressee emails and the disclosure of legal advice when asserting legal professional privilege in litigation.

Orders

Orders of the court

Inspection of certain documents ordered

Plaintiff's application otherwise dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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