TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd

[2020] WASC 364

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 (1976) 135 CLR 674

Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185

Lanco Resources Australia Pty Ltd v Griffin Energy Group Pty Ltd [No 3] [2017] WASC 51

Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1

National Crime Authority v S (1991) 29 FCR 203

New South Wales v Betfair Pty Ltd [2009] FCAFC 160; (2009) 180 FCR 543

Nine Films & Television Pty Ltd v Ninox Television Ltd [2005] FCA 356; (2005) 65 IPR 442

Rayney v AW [2009] WASCA 203

Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd [No 2] [2009] WASC 150

TEC Hedland Pty Ltd v Pilbara Infrastructure Pty Ltd [No 2] [2019] WASC 181

The Civil Aviation Authority v The Queen (on the Application of Jet2.com Ltd) [2020] EWCA Civ 35

HILL J:

1. On 20 December 2019, the plaintiff filed an application pursuant to the Rules of the Supreme Court 1971 (WA) (Rules), O 26 r 9 seeking the production of unredacted copies of 2,727 documents, which were identified in the schedule to the application (Original Schedule). The defendants claimed the unredacted documents were either irrelevant or protected from inspection by legal professional privilege.

2. After filing the application, the parties continued to confer and significantly narrowed the dispute between them.  When the matter came before me for hearing on 8 April 2020, I granted leave to the plaintiff to amend its application and the attached schedule in terms of the amended documents dated 8 April 2020 (Amended Schedule).  As a consequence, the application was limited to 181 documents together with an unknown quantity of documents over which the plaintiff claims privilege has been waived (Disputed Documents).[1]

   [1] ts 364.

3. The Disputed Documents fall into four broad categories:

   (a)communications sent to multiple addressees;

   (b)communications forwarded to an in-house lawyer of Fortescue Metals Group, the parent company of the defendant;

   (c)communications between non-lawyers; and

   (d)communications where it is asserted that privilege has been waived.

4. For the reasons that follow, I propose to inspect 61 documents[2] before making a final ruling on the plaintiff's claim in respect of these documents.  The plaintiff's claim will otherwise be dismissed.

   [2] Documents 534, 535, 537, 538, 546 - 549, 560, 561, 563, 564 565, 686, 769, 770, 771, 772, 773, 810, 811, 812, 813, 824, 826, 860, 977, 1212, 1287, 1458, 1601, 1602, 1702, 1705, 1878, 1908, 1909, 1910, 1991, 2003, 2015, 2016, 2017, 2034, 2082, 2083, 2084, 2085, 2096, 2098, 2191, 2192, 2194, 2196, 2284, 2357, 2359, 2409, 2416, 2556, 2559.

Background to application

1. These proceedings are in the Commercial and Managed Cases List and are case managed by Justice Le Miere.  The proceedings were initially listed for trial to commence on 15 June 2020.  However because of the COVID-19 pandemic, the trial was vacated by consent on 20 March 2020, and was relisted to commence on 1 February 2021. Since hearing this application, the trial dates have again been vacated.  The trial is now listed to commence on 3 May 2021.

2. In the proceedings, the defendant has discovered 7,063 documents.[3]  Initially, 3,787 of these documents were the subject of a claim for legal professional privilege or a combination of legal professional privilege and confidentiality.  In addition, 207 documents were redacted by the defendant prior to being provided to the plaintiff for inspection on the basis that the redacted portions of the documents were irrelevant.

   [3] Affidavit of Bethwyn Christine Cowcher filed 28 September 2018; Affidavit of Bethwyn Christine Cowcher filed 20 December 2019.

3. From 2 November 2019, the plaintiff has conferred with the defendant about the defendant's claims.  As a result of this conferral, on 18 December 2019, the defendant produced 291 documents for inspection by the plaintiff.[4]

   [4] Affidavit of Christopher Alan de Courcy Ryder filed 17 January 2020 (First Ryder Affidavit) [12] - [14]; Affidavit of Colleen Margaret Pratt filed 20 December 2019 [60].

4. On 20 December 2019, the plaintiff filed this application seeking production of documents for inspection.  At that time, the application concerned a fifth category of documents: documents which had been partially redacted to remove irrelevant portions.  This category was resolved prior to the hearing by the defendant producing these documents for inspection.[5]

   [5] ts 364.

5. On 28 January 2020, after a further review of the documents the subject of the application, the defendant produced to the plaintiff an additional 214 documents.[6]

   [6] Further Affidavit of Christopher Alan de Courcy Ryder filed 27 March 2020 (Second Ryder Affidavit) [10], 'CR49'.

6. On 28 February 2020, the plaintiff filed written submissions in support of its application and on 13 March 2020 an amended schedule of documents.  The amended schedule reduced the number of documents in dispute to 537, which included 14 documents that were not the subject of the original application.  The defendant undertook a further review of these documents and between 18 and 27 March 2020 produced an additional 199 documents.[7]

   [7] Defendant's submissions [4]; Second Ryder Affidavit [11] - [14].

7. At the time the matter came on for hearing, the dispute had been reduced to the Disputed Documents.[8]

   [8] ts 364.

8. In support of its application, the plaintiff filed two affidavits of Colleen Margaret Pratt: the first filed 20 December 2019 and the second filed 13 March 2020.  Ms Pratt's first affidavit detailed information about the roles of various employees of the defendant and annexed the correspondence that had passed between the parties in respect of discovery.  Her second affidavit annexed correspondence regarding the additional disclosures that had been made by the defendant since the application was filed.

9. The application is opposed by the defendant who filed three affidavits: an affidavit of Christopher Alan de Courcy Ryder filed 17 January 2020 (First Ryder Affidavit); an affidavit of Matthew David Anderson filed 17 January 2020 (Anderson Affidavit) and a second affidavit of Mr Ryder filed 27 March 2020 (Second Ryder Affidavit).

Legal principles

1. The relevant legal principles that govern this application were not in dispute between the parties.  As is the case with most of these applications, it was the application of these principles that was in dispute.

2. A party who is claiming legal professional privilege carries the onus of establishing the claim is well founded.  In claiming privilege, they are required to:

   (a)list each communication the subject of the claim for privilege;

   (b)state the form in which each communication is contained, stored or recorded, whether it is an original or a copy and the date when each was made;

   (c)identify the persons between whom the communication or communications were made; and

   (d)provide evidence as to the basis of the claim for legal professional privilege.[9]

   [9] Rayney v AW [2009] WASCA 203 [42] citing with approval National Crime Authority v S (1991) 29 FCR 203, 212; Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 [13].

3. The plaintiff's application is brought pursuant to O 26 r 9 of the Rules which entitles the court on an application by a party to make an order for inspection of documents. The plaintiff accepts that, under O 26 r 12 of the Rules, it bears the evidentiary onus to show that the defendant's claim of privilege is unfounded or mistaken.[10]  In discharging this onus, the plaintiff is not restricted to reliance on its own affidavits; it may rely on all of the evidence that is before the court.[11]  In the absence of any evidence to support the challenge to the claim of privilege, it is not sufficient for a party to challenge the claim and have the court inspect documents to determine whether the claim is valid.[12]  In these circumstances, the claim for privilege will be sustained.[13]

Legal professional privilege

[10] CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48 [33] - [34].

[11] Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181 [70].

[12] CTC Resources NL v Australian Stock Exchange Ltd [37].

[13] Rules of the Supreme Court 1971 (WA), O 26 r 12(1).

1. Legal professional privilege takes one of two forms: advice privilege or litigation privilege.  Legal advice privilege covers communications between a lawyer and their client if they are confidential and for the dominant purpose of giving or obtaining legal advice.  Litigation privilege covers confidential communications made, after litigation is commenced or is contemplated, between a lawyer and their client or third parties for the dominant purpose of the litigation.

2. Legal professional privilege applies to in-house lawyers as well as to those in private practice.  In respect of in-house lawyers, there must be a sufficient degree of independence.[14]

   [14] CMA Assets Pty Ltd v John Holland Pty Ltd [No 3] [2012] WASC 501 [5].

3. In considering whether a communication is privileged, the relevant issue is the dominant purpose for which the communication was made.[15]  Dominant purpose does not mean the primary or substantial purpose,[16] but the prevailing or most influential purpose.[17]  If there are two purposes for which the document came into existence which are of equal weight, neither is dominant and the document is not privileged from production.[18]

   [15] Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49 [61] (Gleeson CJ, Gaudron and Gummow JJ), [173] (Callinan J).

   [16] Grant v Downs (1976) 135 CLR 674, 678 (Barwick CJ).

   [17] Commissioner of Taxation (Cth) v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404, 416.

   [18] AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382 [106] citing with approval Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266 [30] (Kenny J).

4. In determining the dominant purpose of a document, the starting point is to ask what was the intended use or uses of the document and why it was brought into existence.  Legal professional privilege can attach to a copy of a non-privileged document if the purpose of bringing the copy into existence is different from the original purpose.[19]

   [19] Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501, 507 (Brennan CJ), 544 (Gaudron J), 553 - 554 (McHugh J), 571 (Gummow J), 587 (Kirby J); AWB Ltd v Cole [107].

5. Ordinarily, the relevant purpose is that of the author of the document although this is not invariably the case.[20]  In some circumstances it may be necessary to consider the purpose of other people who were involved in the decision-making that led to the creation of the document and its communication.[21]  That said, the subjective intention of the author, or person(s) who authorised or procured it, is not necessarily conclusive.[22]  The dominant purpose must be determined objectively, having regard to the evidence, the nature of the documents and the submissions of the parties.[23]  The question as to whether a document was brought into existence for the dominant purpose of obtaining legal advice is a question of fact.[24]

   [20] Grant v Downs, 677 (Barwick CJ).

   [21] AWB Ltd v Cole [107].

   [22] Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [30].

   [23] Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [30].

   [24] AWB Ltd v Cole [102].

6. The mere fact that a document is sent by email to a legal practitioner for legal advice is not, of itself, determinative of the dominant purpose for which the document was created, nor that one intended use of the document is more dominant than any other use.[25]

   [25] AWB Ltd v Cole [118].

7. In most cases, the time for considering the dominant purpose of the document is the time the document was brought into existence.[26]  However, in some cases, a time later than the date on which the document came into existence may be relevant.  This is because it is the communication and not the document that is the subject of the claim of privilege.[27]

   [26] AWB Ltd v Cole [110].

   [27] Galway v Constable [2001] QSC 180; [2002] 2 Qd R 146 [28] (Holmes J).

8. Communications between non-lawyers may be privileged if the communication was prepared for the purpose of obtaining legal advice or assistance.[28]

   [28] CMA Assets Pty Ltd v John Holland Pty Ltd [No 3] [17].

9. In considering whether a communication is seeking or giving legal advice, the court should not take a narrow view.[29]  In this regard, legal advice is not confined to providing advice on the law but includes advice 'as to what prudently and sensibly should be done in the relevant legal context'.[30]  As Allsop J stated in DSE (Holdings) Pty Ltd v Intertan Inc, it will be rare that a communication between a client and lawyer, once retained, is not connected with the request or provision of legal advice.[31] 

   [29] Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325, 333.

   [30] Balabel v Air-India [1988] 1 Ch 317, 330; cited with approval in DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191; (2003) 135 FCR 151 [21], [25] - [71] (Allsop J). See also Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd [No 2] [2009] WASC 150 [24] - [25] (Beech J).

   [31] DSE (Holdings) Pty Ltd v Intertan Inc [51], [52], [71]; cited with approval in AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 [48].

10. The English Court of Appeal recently considered the position of multi-addressee emails in The Civil Aviation Authority v The Queen (on the Application of Jet2.com Ltd).[32]  Hickinbottom LJ considered that the appropriate approach to multi-addressee emails was as follows:[33]

    (a)in respect of a single multi-addressee email sent simultaneously to various individuals for advice or comment, including a lawyer for input, the purpose of the communication needs to be identified.  In doing so, the court must take into account the wide scope of legal advice and the concept of 'continuum of  communications'.  If the dominant purpose of the communication is to settle instructions to the lawyer, the communication will be covered by legal advice privilege even if the communication is sent to the lawyer by way of information or it is part of a series of communications with the dominant purpose of instructing the lawyer.  However, if the dominant purpose is to obtain the commercial views of the non-lawyer addressees, it will not be privileged even if a subsidiary purpose is to obtain legal advice from the lawyer;

    (b)the response from the lawyer if it contains legal advice will almost certainly be privileged even if it is copied to more than one addressee;

    (c)multi-addressee communications should be considered as separate communications between the sender and each recipient.  Where the email seeks both legal advice and non‑legal advice or input, those to and from the lawyer will be privileged but otherwise they will not be privileged unless the dominant purpose is to instruct the lawyer.

    [32] The Civil Aviation Authority v The Queen (on the Application of Jet2.com Ltd) [2020] EWCA Civ 35.

    [33] TheCivil Aviation Authority v The Queen (on the Application of Jet2.com Ltd) [100].

11. In respect of this last aspect, the court acknowledged that there was some debate as to whether multi-address communication should be considered as separate bilateral communications between the sender and each recipient or considered as a whole, but considered the better view was that they should be considered as separate communications.[34] 

    [34] Civil Aviation Authority v Jet2.com Ltd [100(iv)].

12. In argument before me, senior counsel for both parties accepted that this was the correct approach for considering multi-addressee emails.[35]  However, senior counsel for the defendant emphasised that the question for determination was the dominant purpose of the communication and that it should not be assumed that there are multiple purposes for an email just because there are multiple recipients.  Ultimately, it is a question of fact.

    [35] ts 371 - 372; 460 - 462.

13. I do not believe this question or this authority has been specifically considered by a court in Australia to date.  I consider the approach summarised at [26] is the correct approach to multi-addressee emails.  This is because there may be different purposes in sending emails to each of the recipients of a multi-addressee email and it is necessary to consider which, if any, is dominant.

14. Evidence in support of the claim for legal professional privilege should be focused and specific. Where possible, the evidence should explain the thought processes behind, or the nature and purpose of advice being sought in respect of each particular document.[36]

    [36] Barnes v Commissioner of Taxation (Cth) [2007] FCAFC 88; (2007) 242 ALR 601 [18].

15. Where there is a disputed claim for privilege, the court may examine documents.  It should not be hesitant to exercise the power.  However, where the issue is whether the documents fall into a 'class' of documents to which privilege would usually attach, it is less usual to order inspection.[37]  In considering whether to inspect the documents, the purpose is to determine whether the claim for privilege is 'unfounded or mistaken'; that is the court should form the view that the determination of the application will be aided by inspection.[38] 

Waiver

[37] CTC Resources NL v Australian Stock Exchange Ltd [23].

[38] CTC Resources NL v Australian Stock Exchange Ltd [30].

1. Where a document is otherwise subject to a claim for legal professional privilege, the privilege may be lost by waiver.  Waiver may be express or implied. 

2. The onus of establishing waiver lies upon the party seeking to displace the existence of the legal professional privilege - in this case, the plaintiff.[39] 

   [39] Archer Capital 4A Pty Ltd v Sage Group Plc (No 2) [2013] FCA 1098; (2013) 306 ALR 384 [100] (Wigney J), citing with approval New South Wales v Betfair Pty Ltd [2009] FCAFC 160; (2009) 180 FCR 543 [54]. See also Lanco Resources Australia Pty Ltd v Griffin Energy Group Pty Ltd [No 3] [2017] WASC 51 [37].

3. Waiver occurs where there is conduct which is inconsistent with the maintenance of the privilege.[40]  It is an objective test; the law may impute waiver even if this was not intended by the party claiming the privilege.  The intention will be imputed where the actions of a party are 'plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect'.[41]

   [40] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 [28] - [29].

   [41] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management & Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 [30].

4. In Bennett v Chief Executive Officer of the Australian Customs Service, Gyles J, after referring to Mann v Carnell, stated:[42]

   The test looks to inconsistency between the disclosure that has been made by the client on the one hand and the purpose of confidentiality that underpins legal professional privilege on the other.  It is not a matter simply of applying general notions of fairness as assessed by the individual judge.  The authorities to which I have referred show that it is well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege.

   [42] Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101 [68].

5. As was noted by Le Miere J in TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd [No 2]:[43]

   In its military connotation 'deploy' suggests that the information is being used in order to effect some advantage.  Moreover, the authorities in which waiver has been found to occur have been cases in which some advantage has been sought or has been achieved as a result of using the information in litigation, or in some representation or communication with a person other than the person to whom the client disclosed the information on a confidential basis.

Scope of express waiver

[43] TEC Hedland Pty Ltd v Pilbara Infrastructure Pty Ltd [No 2] [2019] WASC 181 [43].

1. In determining the scope of the waiver, the issue is whether the material the party has voluntarily disclosed is the whole of the material which is relevant to the issue or subject matter.[44]  As Young J stated in AWB Ltd v Cole (No 5):[45]

   [T]he limits of any waiver of associated material depend upon the nature of the advice that has been disclosed, what was represented by means of the disclosure, and the character of the transaction that gave rise to the disclosed legal advice.

   [44] Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475, 482, 484 (Gibbs J), 488 (Mason and Brennan JJ), 498 - 499 (Dawson J); AWB Ltd v Cole (No 5) [164].

   [45] AWB Ltd v Cole (No 5) [200].

2. Senior counsel for the defendant relied upon the formulation of the principal by the Victorian Court of Appeal in British American Tobacco Australia Services Ltd v Cowell[46] that where privilege has been waived in relation to an advice, privilege will only be impliedly waived in other advice or associated materials where those documents are necessary to understand the advice over which privilege has been waived.  Where the advice is complete, there will be no implied waiver.[47]  However, Young J in AWB Ltd v Cole (No 5) expressed the view that the Court of Appeal had expressed the proposition too narrowly.  In expressing this view, his Honour noted that:[48]

   The principle propounded by the Court of Appeal may work adequately enough in some circumstances, particularly where privilege is sought to be maintained over one part of a single piece of legal advice, but in other circumstances it will not give effect to the principles explained in Maurice. (citation omitted)

Implied Waiver

[46] British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197; (2002) 7 VR 524.

[47] British American Tobacco Australia Services Ltd v Cowell [121].

[48] AWB Ltd v Cole (No 5) [167].

1. For there to be an implied waiver of legal professional privilege in advice, the gist or substance of the advice must be disclosed; it is insufficient that the existence of advice is disclosed or the fact that advice has been received and considered.  If the conclusion of the advice is disclosed together with the effect of it to 'emphasise and strengthen the substance of the case', there will be an implied waiver of the privilege.[49] 

   [49] Bennett v Chief Executive Officer, Australia Customs Service [5] - [6].

2. As was noted by Tamberlin J in Nine Films & Television Pty Ltd v Ninox Television Ltd:[50]

   Whilst I accept that, in some circumstances, a clear disclosure of the 'bottom line' of the advice, and the course of conduct taken thereafter, may be sufficient to amount to waiver of legal professional privilege, I do not think these matters have been established in the present case.  On a fair and reasonable reading, the statement to the effect that senior counsel had been engaged and that he had reviewed matters in detail and that steps were being taken based on his recommendations is not sufficient to amount to a waiver of the legal advice.  The substance or content of the advice is not disclosed with specificity or clarity.  Questions of waiver are matters of fact and degree and, in this instance, I am not persuaded that the conduct, assertions or admissible evidence are sufficient to warrant the necessary implication that legal professional privilege has been waived.  (original emphasis)

   [50] Nine Films & Television Pty Ltd v Ninox Television Ltd [2005] FCA 356; (2005) 65 IPR 442 [26].

3. Where a party, by its pleadings or evidence, expressly or impliedly makes an assertion about the contention of its legal advice, this may constitute a waiver of privilege.  However, a pleading of a statement of mind to which legal advice is or might be materially relevant will not, of itself, be sufficient; there must be inconsistency between the pleaded case and the maintenance of privilege which causes privilege to be lost.[51]  This requires a 'fact-based inquiry' as to whether the contents of otherwise privileged communications have been directly or indirectly put in issue in the litigation by making a claim or by way of defence.[52]  It is the acts of the party claiming the privilege that must be considered.  A denial or joinder of issue on a question of fact or matter raised by another party will not constitute an implied waiver of privilege.[53]

   [51] DSE (Holdings) Pty Ltd v Intertan Inc [95].

   [52] Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341 [61].

   [53] DSE (Holdings) Pty Ltd v Intertan Inc [115], [121] citing with approval Commonwealth v Temwood Holdings Pty Ltd [2002] WASC 107 [10] (Wheeler J).

Summary of action

1. The dispute in these proceedings concerns a power purchase agreement that was entered into between the parties on 28 July 2014 (PPA).[54]

   [54] Amended Writ of Summons indorsed with Substituted Statement of Claim filed 15 November 2019 (SSOC) [24].

2. The plaintiff is a wholly owned subsidiary of TransAlta Energy (Australia) Pty Limited.[55]  The defendant is a wholly owned subsidiary of the Fortescue Metals Group (FMG).[56]

   [55] SSOC [2].

   [56] SSOC [4].

3. Under the PPA, the defendant agreed to purchase electricity from the plaintiff from a power station to be constructed in Port Hedland (Facility).[57]  Substantial completion occurred in December 2016.  At that time, it was envisaged that acceptance testing would occur in April 2017.[58]

   [57] SSOC [29] - [30].

   [58] SSOC [53], [56].

4. Under the terms of the PPA, if commercial operation had not occurred by:

   (a)28 April 2017, the defendant was entitled to liquidated damages;[59]

   (b)25 October 2017, the defendant was entitled to terminate the PPA.[60] 

   [59] Amended substituted defence and counterclaim filed 6 March 2020 (ASDC) [32.1(h)].

   [60] SSOC [61]; ASDC [32(g)(ii)].

5. On 13 November 2017, the defendant issued a notice of termination to the plaintiff.[61]  The plaintiff denies the notice of termination is valid and seeks a declaration that the PPA is binding and enforceable together with damages.[62]

   [61] SSOC [113].

   [62] SSOC, Relief [A].

6. The competing contentions of the parties were summarised by Le Miere J in TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd [No 2] as follows:[63]

   The dispute is centred on TPI's claims that TECH was unable to meet contractually specified tests (Acceptance Tests) to demonstrate that the plant could run to the specifications outlined in the PPA.  TPI says that TECH failed to achieve 'Commercial Operation' and to meet contractual requirements and, as a consequence, TPI was entitled to terminate the PPA.

   TECH maintains that it has met the terms of the contract, that all conditions required to establish 'Commercial Operation', including all performance tests, have been achieved under the terms of the PPA.

   In this action TECH claims a declaration that the PPA has not been validly terminated by TPI and is binding and enforceable.  TECH claims from TPI amounts it says are due under the PPA.  TPI says that the PPA was validly terminated and counterclaims a declaration that the PPA was validly terminated by TPI, and an order for the payment of a sum allegedly due pursuant to the PPA.

   [63] TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd [No 2] [2] - [4].

Defendant's evidence

1. Before turning to summarise the evidence of the defendant at the hearing before me, senior counsel for the defendant submitted that it was important to view this evidence in the context of the original application.  At the time the application was filed, the plaintiff challenged the defendant’s claim for privilege over more than 2,500 documents.  The application was filed shortly before Christmas and the defendant was required to file its affidavits in response by mid-January 2020.  While the application has, between December 2019 and April 2020, narrowed significantly, given this context, senior counsel for the defendant submitted that it was not reasonable or consistent with the case management principles in O 1 r 4A of the Rules to expect the defendant to have adduced evidence of the dominant purpose of each document.

2. While I accept the strength of this submission as a general proposition, I note that in respect of a number of the Disputed Documents, there is a complete absence of evidence.  The court cannot speculate as to what the dominant purpose of these documents is.  Prior to ruling on the plaintiff's application in respect of these documents, I propose to inspect them to determine whether the dominant purpose of the document or redacted portion of the document can be objectively determined from the documents.

3. The communications over which legal professional privilege is claimed involve Ms Cowcher, an in-house counsel employed by FMG.  It was not in dispute for the purpose of this application that, at the time, Ms Cowcher's role within FMG was restricted to the provision of legal advice and assistance.[64]

   [64] First Ryder Affidavit [40], ts 374 - 376.

4. The documents over which privilege is claimed have a date range between 16 January 2017 and 15 November 2017.[65]  That is, the documents commence shortly after notice was given of substantial completion of the Facility and cease two days after the notice of termination was issued.

   [65] Amended Schedule.

5. The defendant's evidence is that Mr Anderson was responsible for the management of the PPA.  In managing the PPA, he sought and received technical engineering and power advice from Mr Nuttman, legal advice from Ms Cowcher and assistance from Ms Giudici in relation to document control and drafting of various documents.[66]

   [66] Anderson Affidavit [19].

6. In order for Ms Cowcher to provide legal advice, it was necessary for her to be kept appraised of what was happening within the energy and power team on both commercial and technical matters.[67]  On occasions, members of the energy and power teams sought advice by forwarding emails they had received to Ms Cowcher.[68]  She was regularly required to review and 'sign off' on correspondence sent from and to FMG in relation to the Facility and the PPA.[69]

   [67] First Ryder Affidavit [55].

   [68] First Ryder Affidavit [56].

   [69] First Ryder Affidavit [61].

7. Specifically, the evidence of Mr Anderson is that:

   (a)in February 2017, he instructed members of the Energy and Power team to only send Ms Cowcher information which was relevant from a legal perspective and on which legal advice was sought;[70]

   (b)Ms Cowcher was not provided with all communications or documents;[71]

   (c)his practice was to send Ms Cowcher information which he thought was relevant and on which he sought legal advice.  His requests for advice were generally oral as he and Ms Cowcher sat at open plan desks about four to five metres apart.  At or around the time of seeking oral advice, he forwarded her emails with the relevant documents;[72]

   (d)on occasions he sent emails to Ms Giudici and Mr Nuttman (who were both part of the energy and power team) as well as Ms Cowcher requesting Ms Giudici to draft documents.  In doing so, his dominant purpose was to ask Ms Giudici to draft documents for legal review by and advice from Ms Cowcher.  His purpose in copying Mr Nuttman into these emails was to ensure that he was kept up-to-date.[73]

   [70] Anderson Affidavit [24].

   [71] Anderson Affidavit [26].

   [72] Anderson Affidavit [27].

   [73] Anderson Affidavit [29].

8. Initially, the advice that Mr Anderson sought in February 2017 concerned commissioning load but subsequently, other issues arose.[74]  From April to June 2017, he sought and obtained advice on the requirements of testing and the plaintiff's proposals on load issues.[75]  From June 2017 until November 2017, he sought and obtained legal advice in relation to what was required for 'Commercial Operation' under the PPA and the parties' rights under the PPA.[76]

   [74] Anderson Affidavit [32].

   [75] Anderson Affidavit [42].

   [76] Anderson Affidavit [46].

9. The defendant also relied on the evidence of Mr Ryder that he reviewed each document the subject of the application between 20 December 2019 and 17 January 2020 and considered that the claim for privilege in relation to each document was properly made.[77]  In relation to this evidence, senior counsel for the plaintiff submitted that little weight should be placed on it.  This was because since this review had been undertaken, a number of documents have been produced for inspection by the defendant.  Ultimately, the question as to whether the claim of privilege is well‑founded is a question for determination by this court.  For this reason, I have not placed any significant weight on this aspect of Mr Ryder's evidence.

   [77] First Ryder Affidavit [22].

Multi-addressee emails

1. 130 of the Disputed Documents are in this category.[78]  Following conferral between the parties, the plaintiff accepted that communications from Ms Cowcher to multiple addressees are protected by legal advice privilege.  Most of the documents which remain in dispute are emails which were sent to Ms Cowcher and other recipients.  A smaller number of the Disputed Documents are emails where Ms Cowcher was copied into the email.[79]

   [78] Senior counsel for the plaintiff submitted there were 132 documents in this category (ts 389).  I have addressed documents 1407 and 1408 as communications between non-lawyers.

   [79] Documents 534, 991, 1804, 1807.

2. The plaintiff contended that the evidence filed by the defendant:

   (a)does not support the defendant's assertion that the communication is privileged;[80]

   (b)is to the effect that the dominant purpose in copying Ms Cowcher into the emails was to keep her informed of commercial or technical matters so that she could subsequently provide advice;[81] 

   (c)in any event, does not explain why the communications were sent to the non-lawyer recipients. 

   [80] Plaintiff's submissions [17], [19].

   [81] Plaintiff's submissions [20]

3. For these reasons, the plaintiff submits that the defendant has not established that the dominant purpose in sending each of the multi‑addressee emails was to obtain legal advice.[82]

   [82] Plaintiff's submissions [21].

4. The defendant contended that, on a fair reading of the evidence it had adduced, it could not be said that the defendant had not established that each of these communications was part of the continuum of keeping Ms Cowcher informed for the dominant purpose of seeking legal advice.[83]  On this basis, the defendant submitted that the plaintiff's application should be dismissed.

   [83] Defendant's submissions [39].

5. I turn first to the question as to whether a distinction should be drawn between the emails where Ms Cowcher was a direct recipient and those where she was copied into the email.  The defendant contended that there was no evidence upon which it could be inferred that the defendant's employees drew a distinction in sending an email as to who should be a recipient of an email and who should be copied into an email.[84] 

   [84] Defendant's submissions [47].

6. I accept that where an email is sent by way of reply or 'reply all', it is unlikely that the sender has turned his or her mind to this issue.  That is, I accept the author replying to the email is unlikely to have considered who should be a direct recipient and who should be copied into the email.  For this reason, I will consider these documents as documents where Ms Cowcher is one or a number of recipients.  This applies to, for example, documents 534 and 991.  However, where the document is the start of an email exchange, objectively viewed, the author has drawn a distinction as to who should be an addressee of the email and who should be copied into the email.  In those cases, in my view, it is appropriate that a distinction be drawn.  This applies to documents 1804 and 1807.

Emails where Ms Cowcher is copied into the email (Documents 1804 and 1807)

1. I accept the defendant's evidence that the purpose in copying Ms Cowcher into emails was to keep her informed of commercial or technical matters.  However, while this may make the copy in Ms Cowcher's email inbox privileged, it does not, of itself, make the communication privileged in respect of all recipients. 

2. Both documents 1804 and 1807 are emails from Ms Guidici to Mr Anderson copied to Ms Cowcher and dated 31 July 2017.  Each concerns an operating licence; one with 'DEW' (document 1804) and the other with Horizon (document 1807).  Copies of emails with partial redactions were produced by the defendant on 28 January 2020.  The redacted portion is said to contain Ms Cowcher's advice. 

3. While these specific documents are not addressed in the defendant's evidence, the subject matter of these emails on this date are the subject of specific evidence.  The defendant's evidence is that on 31 July 2017, Mr Anderson emailed Ms Cowcher for the purpose of obtaining legal advice on the operating licence issues and that Ms Cowcher provided preliminary advice on that date.[85]  I also take account of Mr Anderson's evidence summarised at [54(d)].

   [85] First Ryder Affidavit [181].

4. Given this evidence, objectively viewed, I consider that the plaintiff has not discharged its onus of establishing that the defendant's claim for privilege is unfounded or mistaken.  Accordingly, I dismiss the plaintiff's application for inspection of documents 1804 and 1807.

Emails where Ms Cowcher is one of a number of direct recipients

1. Turning to the emails where Ms Cowcher was one or a number of direct recipients, it is clear from the Amended Schedule that these emails were sent by one of Andrew Nuttman (who managed the electricity portfolio and was generally responsible for technical matters),[86] Paul Keay (Manager of Procurement, Energy and Power team until May 2017 when he left FMG),[87] Matthew Anderson (from February 2017, Manager, strategic contracts),[88] Barbara Giudici (who was responsible for strategic contracts),[89] or Atul Garg (who was responsible for gas and gas transport).[90]  In relation to some of the emails, the schedule does not disclose who forwarded the email.[91]  The recipients of the emails other than Ms Cowcher (including those copied into the email) include Mr Keay, Mr Garg, Steve Fewster (General Manager or Project Director responsible for Energy and Power),[92] Mr Nuttman, Ms Giudici, Mr Anderson, Andrew Lovell (Electrical Maintenance Superintendent Anderson Point, Port Hedland)[93] and Neil Humphries (analyst for the Energy and Power teams).[94] 

   [86] First Ryder Affidavit [47(c)].

   [87] Anderson Affidavit [9] - [10].

   [88] Anderson Affidavit [5].

   [89] First Ryder Affidavit [47(d)].

   [90] First Ryder Affidavit [47(b)].

   [91] For example, documents 527, 728, 759, 909, 923, 969, 970, 982, 1003, 1020, 1050, 1058, 1109, 1406 ‑ 1409, 1695, 2015, 2096, 2191, 2409.

   [92] First Ryder Affidavit [51].

   [93] Affidavit of Colleen Margaret Pratt filed 20 December 2019 [48].

   [94] First Ryder Affidavit [47(a)].

2. From the title of these emails, it is clear that some emails are forwarded to the recipients, some are replies to earlier emails and the remaining emails are original emails from the author to the recipients.

3. 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.[95]  However, if the email was seeking to identify facts or events that had occurred, it was not protected by privilege.

   [95] Plaintiff's submissions [30].

4. In their written submissions and during the course of the hearing, senior counsel for each of the parties referred me to specific documents.  In addition, the defendant's evidence specifically addressed a number of documents.  I have considered these documents by reference to the author of the email.

5. In considering these emails and whether they are subject to a claim for professional privilege, in my view, the relevant factors include whether the email is a reply to an earlier email (and who the author of the original email is) as well as the number of recipients of the email.  Where the original author is Ms Cowcher and there are limited recipients, I consider that it is more likely that an inference can be drawn that the dominant purpose of the email is to give instructions to Ms Cowcher for the purpose of her providing legal advice and the others are copied into the email either to provide input or to keep them informed, and the claim for legal professional privilege is properly made.  However, where Ms Cowcher is not the original author and there are larger numbers of recipients of the email, it is less likely that this inference can be drawn in the absence of specific evidence. 

6. Notwithstanding these general observations, it is, of course, necessary to consider each document specifically as these matters are fact dependent.

Emails from Andrew Nuttman

Documents 504, 509, 514, 527[96]

[96] Defendant's submissions [81], fn 65.

1. Each of these documents is an email from Mr Nuttman to Ms Cowcher and Mr Keay between 16 January 2017 and 20 January 2017 concerning 'SHPS - Commissioning Load Meeting - MoM 9/1/16'.  Mr Garg was included as a recipient of documents 514 and 527.  The defendant produced copies of these emails with partial redactions on 18 March 2020.  A copy of document 527 with partial redactions was also produced on 28 January 2020.  The redacted portion is said to contain a communication providing instructions to Ms Cowcher.[97]

   [97] Amended Schedule.

2. The defendant's evidence in relation to these emails is that Mr Nuttman sent the emails regarding a meeting held that day between the plaintiff, defendant and Horizon concerning the commissioning load for the Facility for the purpose of informing Mr Keay and Ms Cowcher of the matters discussed in that meeting and to instruct Ms Cowcher to provide legal advice in relation to those matters. The defendant says that the portion of the emails providing a report on the matters discussed at the meeting has been produced and that the redacted part of each email is the portion providing instructions to Ms Cowcher for the purpose of her providing legal advice and assistance.[98]

   [98] Second Ryder Affidavit [29] - [34]; ts 440.

3. Given this specific evidence, I accept that the dominant purpose for the redacted portion of the emails was to seek legal advice from Ms Cowcher.  As such, this portion of the emails is, in my view, properly the subject of a claim for legal professional privilege.

Documents 534 and 535[99]

[99] ts 372.

1. Document 534 is an email from Mr Nuttman to Mr Keay dated 25 January 2017 which was copied to Mr Garg, Ms Cowcher and Mr Fewster.  The title of the email is 'RE:540PH-5600-CO-CP-0001 003 Commissioning Load FMG Response'.  It attaches a word document (document 535) which is titled '540PH-5600-CO-CP-0001 003 Commissioning Load FMG Response AN Comments'.  The defendant produced a copy of document 534 on 28 January 2020 and 18 March 2020 with a partial redaction.[100]  The redacted portion is said to contain information on which Ms Cowcher was advising.

   [100] Amended Schedule.

2. Senior counsel for the plaintiff accepted that the copy email sent to Ms Cowcher might be privileged (on the basis of the principle set out in Commissioner of Australian Federal Police v Propend Finance Pty Ltd summarised at [20] (Propend principle)) but submitted that this did not mean that the copies of the email sent to the remaining recipients were similarly privileged.

3. Viewed objectively, and taking account of the evidence of the defendant, I accept that a purpose of the email was to keep Ms Cowcher aware of the email which was relevant to matters on which Ms Cowcher was advising.  On the basis of the Propend principle, I accept that the copy of the email sent to Ms Cowcher is privileged.  However, there is no evidence as to Mr Nuttman's purpose in sending the email to Mr Keay or copying in the remaining recipients, or which purpose was the dominant purpose.  The mere fact that a document contains information on which Ms Cowcher was advising, without more, is not sufficient to sustain a claim for privilege over all copies of the document. 

4. In relation to the attachment, I infer from the description that the document contains Mr Nuttman's comments in relation to a draft response. The question as to whether these comments are privileged or not depends on the nature of the comments, as set out at [69].

5. The defendant did not adduce any specific evidence to displace this objective view.  The defendant's evidence in relation to the documents with the context 'Commissioning load' primarily address documents after the date of this document.

6. My preliminary view is that the defendant's claim for privilege is unfounded and that the plaintiff has discharged its evidentiary onus.  However, before making a final ruling on these documents, I propose to inspect these documents.

Document 643

1. This document is an email from Mr Nuttman to Ms Giudici, Ms  Cowcher and Mr Anderson dated 20 February 2017 titled 'RE: 17.02.20 - SHPS - Commissioning Load - Material Variation'.  The defendant objects to production of this document on the basis that the document contains information on which Ms Cowcher was advising and her advice.[101]

   [101] Amended Schedule.

2. While this document was not the subject of specific evidence, objectively viewed, this is a reply to an earlier email.  Having reviewed the Original Schedule, I infer this is a reply to an email from Ms Cowcher to Mr Nuttman, Ms Giudici and Mr Anderson of the same date which attached a document prepared by Amanda Day (an executive assistant in the legal team at FMG).[102]  A claim for legal professional privilege has been made over the original email which is now not disputed.

   [102] Documents 644 and 645.

3. In these circumstances, I accept that the dominant purpose of the email was the provision of instructions or comments on the legal advice given by Ms Cowcher and is part of the continuum of communications between Ms Cowcher, as the author of the original email, and the recipients.  As such, this email is, in my view, properly the subject of a claim for legal professional privilege.

Document 688

1. This document is an email from Mr Nuttman to Ms Giudici, Ms  Cowcher and Mr Anderson dated 8 March 2017 titled 'RE:  DRAFT - South Hedland Power Station - Contract Management Cheat Sheet'.  Objectively viewed, this is a reply to an earlier email.  From the Original Schedule, I infer that this email is a reply to an email from Ms Cowcher to Mr Nuttman, Ms Giudici and Mr Anderson which attached a document prepared by Ms Cowcher.[103]  The defendant has objected to inspection of this document on the basis of legal professional privilege, which claim is now conceded by the plaintiff.

   [103] Documents 679 and 680.

2. While objectively viewed, the description of the document does not support a claim that the document is subject to a claim for legal professional privilege, the fact that it is a reply to an email from Ms Cowcher does.  For the reasons set out above at [84], I do not consider that the plaintiff has discharged its onus to adduce evidence to displace the defendant's claim for privilege over these documents.

Documents 759 and 760[104]

[104] Defendant's submissions [81], fn 65.

1. These documents are emails between Mr Nuttman, Ms Cowcher and Mr Anderson, copied to Andrew Lovell and Ms Giudici, dated 29  March 2017. The title of the emails is 'SHPS Weekly Commissioning Interface Minutes 28-03-2017'.  Copies of these emails  with partial redactions were produced to the plaintiff on 28 January 2020 and 18 March 2020.  The redacted portion is said to contain information on which Ms Cowcher was advising.[105]

   [105] Amended Schedule.

2. The defendant's evidence is that the email sent by Mr Nuttman (document 760) was regarding a meeting that was held on 28 March 2017 between the plaintiff, the defendant and Horizon, concerning the commissioning of the Facility.  The redacted portion of the emails over which privilege is claimed contains a communication by him directed to Ms Cowcher for the dominant purpose of instructing Ms Cowcher to provide legal advice in relation to matters discussed at that meeting.[106]

   [106] Second Ryder Affidavit [41] - [46], ts 440.

3. While there is no evidence as to Mr Nuttman's purpose in sending the email to Mr Anderson (and copying the others in), given this specific evidence, I accept that the dominant purpose for the redacted portion of the emails was to seek legal advice from Ms Cowcher.  As such, this portion of the emails is, in my view, properly the subject of a claim for legal professional privilege.

Document 774

1. This is an email from Mr Nuttman to Ms Giudici, Ms Cowcher and Mr Anderson dated 3 April 2017 titled 'Re: South Hedland Power Station - Commissioning Obligations and Options'.

2. While this document is not the subject of specific evidence, the defendant has adduced evidence in relation to this chain of emails.  The defendant’s evidence is that on 3 April 2017 Ms Cowcher provided advice to Mr Anderson, Mr Nuttman and Ms Giudici about the defendant’s contractual obligations regarding the commercial operation of the Facility.[107]  Objectively viewed, this email is a reply to that earlier email of the same date.

   [107] First Ryder Affidavit [149(b)]; Original Schedule, document 775.

3. In these circumstances, I accept that the dominant purpose of the email was to provide instructions or comments on the legal advice obtained from Ms Cowcher.  As such, this email is, in my view, properly the subject of a claim for legal professional privilege.

Document 923

1. This is an email to Ms Cowcher and Mr Anderson dated 24 April 2017 titled 'RE:  SHPS Amendment to Development Deed'.  A copy of this document, with partial redactions, was produced by the defendant for inspection on 18 March 2020.  The redacted portion is said to contain information on which Ms Cowcher was advising.[108]

   [108] Amended Schedule.

2. The evidence of the defendant is that:[109]

   (a)on or about 21 April 2017, the defendant became aware that the development deed between the plaintiff and Horizon had been amended;

   (b)the defendant wrote to Horizon requesting that Horizon provide to them any documentation relating to the amendment of the development deed;

   (c)the redacted portion of the document is an email prepared by Mr Nuttman for the dominant purpose of seeking legal advice from Ms Cowcher in relation to the amendment to the development deed between the plaintiff and Horizon.

   [109] First Ryder Affidavit [139] - [141].

3. Having reviewed the Original Schedule, it is not clear who sent the original email that this document replies to.

4. Notwithstanding this, taking into account the limited number of recipients of these emails and the defendant's specific evidence, on this document objectively viewed, I do not consider the plaintiff has discharged its onus that the defendant's claim for privilege is mistaken or unfounded.

Documents 969 and 970

1. These documents are emails to Ms Cowcher and Mr Anderson dated 8 May 2017 titled 'RE: Action Items for Joint SteerCo Meeting | 28.05.17'.  From the Original Schedule,[110] I infer that these emails are a reply from Mr Nuttman to an email from Mr Anderson to Ms Cowcher, which he was copied into.  The defendant has objected to production of these documents on the basis that these documents contain information on which Ms Cowcher was advising as well as her advice.

   [110] Documents 954, 966.

2. While there was no specific evidence in respect of these documents, the defendant’s evidence is that:

   (a)during May 2017, there was a disagreement between the defendant and the plaintiff as to whether the plaintiff could operate the Facility without having received an approval from EnergySafety WA;

   (b)on 5 May 2017, Mr Anderson emailed Ms Cowcher for the dominant purpose of obtaining her legal advice on this issue.

3. The plaintiff originally objected to the claim for privilege made over Ms Cowcher's response to these emails.[111]  However, this objection was withdrawn prior to the hearing of the application.

   [111] Documents 963, 971 and 972.

4. Given these matters, objectively viewed, I accept that the emails from Mr Nuttman were sent for the dominant purpose of providing instructions or comments on the legal advice from Ms Cowcher.  As such, these documents are, in my view, properly the subject of a claim for legal professional privilege.

Documents 985, 1003, 1058, 1064, 1109, 1118, 1381 and 1399[112] (Also addresses 982, 986, 1059, 1065, 1382, 1398)

[112] Defendant's submissions [78], fn 59.

1. Apart from documents 1109 and 1118, each of these documents is an email from Mr Nuttman to Ms Cowcher and Mr Anderson dated between 11 May 2017 and 16 May 2017 concerning the 'SHPS - Heat Rate Testing & PTC46'.  Copies of documents 986, 1003 and 1398 have been produced with partial redactions on 18 March 2020.  The defendant has objected to production of the redacted portion on the basis that it contains information on which Ms Crowcher was advising.

2. The defendant's evidence is that Mr Nuttman's dominant purpose in sending these emails was to obtain Ms Cowcher's legal advice on the interpretation of the 'Guaranteed Heat Rate' under the PPA.[113] 

   [113] Second Ryder Affidavit [50].

3. Taking into account the limited number of recipients of these emails and this specific evidence, objectively viewed, I accept that each of these documents was sent for the dominant purpose of obtaining legal advice.

4. In respect of documents 1109 and 1118, these documents are emails dated 22 May 2017 from Mr Nuttman to Ms Cowcher and Mr Anderson titled 'SHPS Construction & Commissioning Program'.  Copies of these documents with partial redactions were produced on 18 March 2020.  The defendant has objected to production of the redacted portions on the basis that it contains information on which Ms Cowcher was advising.[114]

   [114] Amended Schedule.

5. The defendant's evidence is that:[115]

   (a)he sent this email regarding a construction and commissioning program that had been issued by the plaintiff;

   (b)the redacted part of the email concerns a communication to Ms Cowcher for the dominant purpose of instructing her to provide legal advice regarding the interpretation of 'Commercial Operation' of the Facility under the PPA.

   [115] Second Ryder Affidavit [59] - [64].

6. Taking into account the limited number of recipients of these emails and this specific evidence, objectively viewed, I accept that each of these emails was sent for the dominant purpose of obtaining legal advice. 

Documents 1050 and 1057 (also addresses documents 1070, 1071, 1076, 1077, 1079, 1086)

1. Document 1050 is an email dated 18 May 2017 to Ms Guidici and Ms Cowcher copied to Mr Anderson titled 'RE:  17.05.17 - DRaft [sic] notice - FM'. Document 1057 is an attached word document authored by Ms Day.  

2. Viewed objectively, this email is a reply to an earlier email.  From the Original Schedule, I infer that this is a reply to an email from Ms Cowcher to Mr Nuttman and Ms Giudici copied to Mr Anderson of the same date which attached a document of the same title.[116]  The plaintiff has now conceded that the claim for privilege over Ms Cowcher’s email is properly made.

   [116] Documents 1041 and 1042.

3. On the basis of these matters:

   (a)I infer that this email is a response from Mr Nuttman to the earlier email from Ms Cowcher;

   (b)consistent with the views that I have expressed above at [84], I consider that these documents are a continuation of the email chain in relation to Ms Cowcher's legal advice;

   (c)I accept that these documents were sent for the dominant purpose of providing Ms Cowcher with instructions.

4. Documents 1070, 1071, 1076, 1077, 1079, and 1086 are similarly part of this email exchange.  For the same reasons, I accept that each of these documents are properly the subject of a claim for legal professional privilege.

Documents 1074 and 1075

1. Document 1074 is an email sent by Mr Nuttman to Ms Giudici and Ms Cowcher copied to Mr Anderson on 18 May 2017 titled 'Re: 17.05.17 - DRaft [sic] notice - Load Movements'.  The email attaches a Word document produced by Ms Day (document 1075).

2. Viewed objectively, this email is a reply to an earlier email.  From the Original Schedule, I infer that this email is a reply to an email from Ms Cowcher to Mr Nuttman and Ms Guidici copied to Mr Anderson dated 17 May 2017 which attached a document of the same title.[117]  The defendant objects to production of these documents on the basis that they are subject to a claim for legal professional privilege.  The plaintiff has now conceded this claim is properly made.

   [117] Document 1039 and 1040.

3. On the basis of these matters:

   (a)I infer that this email is a response from Mr Nuttman to the earlier email from Ms Cowcher;

   (b)consistent with the views that I have expressed above at [84], I consider that these documents are a continuation of the email chain in relation to Ms Cowcher's legal advice;

   (c)I accept that these documents were sent for the dominant purpose of providing Ms Cowcher with instructions.

Documents 1020, 1025, 2191, 2192 and 2194[118] (Also addresses document 1695)

[118] Defendant's submissions [75], fn 54.

1. Documents 1020 and 1025 are emails dated 16 May 2017 to Ms Cowcher and Mr Anderson with the title 'FW Action Items for Joint SteerCo Meeting | 28.05.17 - CCGT Performance Testing'.  It is not clear who sent document 1020 but document 1025 (the second email) was sent by Mr Nuttman. 

1. Documents 2191, 2192 and 2194 are emails dated 26 September 2017 to Ms Cowcher and Mr Anderson with the title 'Privileged and Confidential - SHPS Performance Test Report - Leidos Report'.  It is not clear who sent document 2191 but the other emails were sent by Mr Nuttman. 

2. The defendant's evidence is that:[119]

   (a)on 12 May 2017, the defendant received a proposal from the plaintiff to test the Facility at part load which would then be used to calculate the full load capacity of the Facility;

   (b)this proposal was provided ahead of a meeting on the Joint Steering Committee on 28 May 2017; and

   (c)Ms Cowcher was asked to provide advice on this proposal.

   [119] First Ryder Affidavit [122].

3. On 17 July 2017, the defendant received a test report (document 1695) from the plaintiff which was forwarded to Ms Cowcher and Mr Anderson.[120] 

   [120] First Ryder Affidavit [166].

4. Taking into account the limited number of recipients of these emails and this specific evidence, objectively viewed, I accept that documents 1020, 1025 and 1695 were sent for the dominant purpose of obtaining legal advice.  For this reason, the plaintiff's application to inspect these documents is refused.

5. In respect of documents 2191, 2192 and 2194, there is no evidence before me as to who commissioned the Leidos Report nor the subject matter of this report.  If this was a report commissioned by the defendant to provide to Ms Cowcher to enable her to provide legal advice and the report has not been subsequently deployed by the defendant, I consider that these emails will be covered by legal professional privilege.  However, in the absence of any evidence on this issue, I propose to inspect these documents before reaching a final decision on these documents.

Documents 1156 and 1157

1. Document 1156 is an email from Mr Nuttman to Ms Giudici, Ms Cowcher and Mr Anderson dated 23 May 2017 titled 'RE:  maintenance schedule - Draft Response'.  The email attaches a word document (document 1157), the author of which is Ms Day, titled  '540PH-5600-CO-CP-0001.0XX Draft Maintenance Schedule Response'.

2. The defendant contends that the attachment is a draft letter on which Ms Cowcher was asked to comment and that the covering email provides instructions to her.[121]

   [121] Defendant's submissions [81].

3. The defendant's evidence is that: [122]

   (a)the provision of draft maintenance schedules by the plaintiff was one of the ancillary matters that arose under the PPA;

   (b)these schedules needed to be managed in light of the broader context of the dispute between the parties about the commissioning of the Facility.

   [122] First Ryder Affidavit [206].

4. Objectively viewed:

   (a)a word document created by a legal assistant within the legal team is created for the dominant purpose of providing legal advice;

   (b)the email from Mr Nuttman is a reply to an email that he received.  In these circumstances, I infer that the email contains Mr Nuttman's comments and instructions on the draft letter. 

5. For these reasons, I do not consider that the plaintiff has discharged its onus of adducing evidence that the defendant’s claim for privilege is unfounded or mistaken. 

Document 1287

1. This is an email from Mr Nuttman to Ms Cowcher and Mr  Anderson copied to Ms Giudici dated 10 June 2017 titled 'Re:  Draft SHPS - June Commisisoning [sic] tests'.

2. Objectively viewed, this document is a response to an earlier email.  It is not possible from the evidence before me or the Original Schedule to identify who the author of the original email is.

3. The defendant adduced no evidence in relation to this email.  It is not possible from the evidence before me to draw any inference as to the document or whether it was sent or created for the dominant purpose of providing legal instructions.

4. In these circumstances I propose to inspect the document before making a final ruling on the document.

Documents 2003, 2015, 2016 and 2017

1. These documents are a series of emails between Mr Nuttman, Ms Giudici, Ms Cowcher and Mr Anderson concerning performance testing at South Hedland dated 24 August 2017 (Document 2003) and 29 August 2017 (remaining documents).  Each of the emails is headed 'Privileged and confidential'.

2. The fact that the email is headed 'privileged' does not, of itself, make the email privileged.  This might be evidence of the author's subjective belief but does not, of itself, properly ground a claim for privilege.  The defendant has objected to inspection of these documents on the basis that the documents contain information on which Ms Cowcher was advising.

3. The defendant adduced no evidence in relation to this chain of emails. As such, it is not possible from the evidence before me to draw any inference as to the documents or whether they were sent or created for the dominant purpose of providing legal instructions.  Even if the document contains information on which Ms Cowcher was advising, this of itself is insufficient to sustain a claim for legal professional privilege.

4. In these circumstances I propose to inspect the documents before making a final ruling on them.

Documents 2082 to 2085

1. These documents are a series of emails between Mr Nuttman, Ms  Cowcher and Mr Anderson concerning NWIS Tech Rules Definition dated 8 September 2017. Each of the emails is headed 'Privileged and confidential'.

2. As noted above at [130], the fact that the email is headed 'privileged' does not, of itself, make the email privileged.  The defendant has objected to inspection of these documents on the basis that the documents contain information on which Ms Cowcher was advising.

3. The defendant adduced no evidence in relation to this chain of emails. As such, it is not possible from the evidence before me to draw any inference as to the documents or whether they were sent or created for the dominant purpose of providing legal instructions.  Even if the document contains information on which Ms Cowcher was advising, this by itself is insufficient to sustain a claim for legal professional privilege.

4. In these circumstances, I propose to inspect the documents before making a final ruling on them.

Documents 2096 and 2098

1. These documents are emails from Mr Nuttman to Mr Garg, Ms  Cowcher and Mr Anderson on 11 September 2017 titled 'FW:  SYSTEM DISTURBANCE ADVICE'.  Copies of these documents with partial redactions were produced to the defendant on 28 January 2020.  The defendant has objected to inspection of the redacted portion of these documents on the basis that the documents contain information on which Ms Cowcher was advising.

2. The defendant adduced no evidence in relation to this chain of emails. As such, it is not possible from the evidence before me to draw any inference as to the documents or whether they were sent or created for the dominant purpose of providing legal instructions.  Even if the document contains information on which Ms Cowcher was advising, this of itself is insufficient to sustain a claim for legal professional privilege.

3. In these circumstances, I propose to inspect the documents before making a final ruling on them.

Documents 2130 and 2131

1. These documents are an Outlook meeting request and appointment dated 18 September 2017 titled 'Privileged and Confidential - Noncompliance with PCT46 letter to TA - Round 2'.  The meeting request is sent by Mr Nutttman to Ms Giudici, Ms Cowcher and Mr Anderson.

2. Objectively viewed, these documents are setting up a meeting between Mr Nuttman and the recipients, including Ms Cowcher, to discuss alleged non-compliance with a letter. The evidence before me is that PCT46 concerns the part load testing procedure.[123]  In these circumstances, I infer that the meeting is to provide instructions to Ms Cowcher and to seek her legal advice in respect of this matter.

   [123] First Ryder Affidavit [158].

3. For these reasons, I do not consider the plaintiff has discharged its onus of adducing evidence that the defendant’s claim for privilege is unfounded or mistaken.

Documents 2196, 2284, 2357 and 2359

1. These documents are emails from Mr Nuttman to Mr Anderson and Ms Cowcher and, in the case of document 2284, Ms Giudici.  The defendant has objected to inspection of these documents on the basis that the documents contain information on which Ms Cowcher was advising.

2. The defendant adduced no evidence in relation to these documents.  As such, it is not possible from the evidence before me to draw any inference as to these documents or whether each was sent or created for the dominant purpose of providing legal instructions.  Even if the documents contain information on which Ms Cowcher was advising, this of itself is insufficient to sustain a claim for legal professional privilege.

3. In these circumstances I propose to inspect these documents before making a final ruling on them.

Document 2409 and 2416

1. These documents are emails to Ms Cowcher and Mr Anderson on 23 October 2017 concerning a proposed variation to the PPA and acceptance testing.  Document 2416 is sent by Mr Nuttman and I infer that document 2409 is similarly authored by him.

2. Objectively viewed, these emails are a reply to an earlier email. From my review of the Original Schedule, it is apparent that on or about 12 October 2017, the defendant received a letter concerning the proposed variation to the PPA.[124]  There are exchanges of emails between Mr Peter Huston (Chief General Counsel and Director Corporate Services at FMG)[125] and Ms Cowcher, and separately Mr Nuttman, Ms Cowcher and Mr Anderson from 12 October 2017 until at least 23 October 2017.[126]

   [124] Original Schedule, documents 2352 - 2354.

   [125] First Ryder Affidavit [37].

   [126] See for example Original Schedule, documents 2352 - 2354, 2357 - 2359.

3. The defendant adduced no evidence in relation to these documents. As such, it is not possible from the evidence before me to draw any inference as to these documents or whether each was sent or created for the dominant purpose of providing legal instructions.  Even if the documents contain information on which Ms Cowcher was advising, this of itself is insufficient to sustain a claim for legal professional privilege.

4. In these circumstances I propose to inspect these documents before making a final ruling on them.

Documents 2699 and 2701

1. These documents are emails from Mr Nuttman to Ms Cowcher and Mr Anderson dated 15 November 2017 titled 'Re:  South Hedland Power Station Multishipper Deed'.  The defendant produced a copy of these documents with partial redactions on 18 March 2020. The defendant objects to production of the unredacted portion(s) of the documents on the basis that it contains information on which Ms Cowcher was advising and her advice.

2. The defendant's evidence in relation to these documents is that:[127]

   (a)the multishipper deed provided for the allocation of gas at the Facility between Horizon and FMG, to be used in the production of power for each by the plaintiff;

   (b)on 15 November 2017, Ms Cowcher gave legal advice to the defendant about the multi-shipper deed following a request for advice from Mr Nuttman.

   [127] First Ryder Affidavit [86(b)], [203] - [204].

3. The defendant has claimed privilege over the advice of Ms Cowcher, which the plaintiff has conceded is properly made.

4. Objectively viewed, these emails are a reply to an earlier email. It is not possible in the evidence before me to determine who sent the original email.  However, on the basis of the defendant's evidence and given the limited number of recipients of the email, I do not consider that the plaintiff has discharged its onus that the defendant’s claim for privilege is mistaken unfounded.

Emails from Matthew Anderson

Document 634

1. This document is an email from Mr Anderson to Ms Giudici and Ms Cowcher, copied to Mr Nuttman dated 17 February 2017 and titled 'RE: 17.02.14 - SHPS - Commisisong [sic] Load'. 

2. The defendant's evidence in relation to this document is that Ms Cowcher drafted a document for the Energy and Power team and Mr Anderson provided instructions on it.[128]  I accept that the defendant has not adduced specific evidence as to Mr Anderson's purpose in sending this email to Ms Giudici and Mr Nuttman.  However, Mr Anderson gave evidence as to his general practice as summarised above at [54], which I accept. 

   [128] First Ryder Affidavit [115(a)].

3. On the basis of Mr Anderson's general evidence and this specific evidence, I do not consider the plaintiff has discharged its onus of adducing evidence that the defendant’s claim for privilege is unfounded or mistaken.

Document 716

1. Document 716 is an email from Mr Anderson to Mr Nuttman, Ms Giudici and Ms Cowcher dated 17 March 2017 titled 'SHPS - Commissioning Load Response'. The email attaches a word document authored by Ms Day (Document 720), which is addressed separately at [247].

2. Mr Anderson's evidence in relation to this email is that he emailed the recipients to ask Ms Giudici to draft a document to provide to  Ms  Cowcher for the purpose of obtaining Ms Cowcher's legal advice.[129]  His evidence was that where he instructed a team member to do a task relating to commissioning load issues, he copied Ms Cowcher into the email to ensure that she knew her advice would be sought.[130]

   [129] Anderson Affidavit [40(a)].

   [130] Anderson Affidavit [39].

3. Objectively viewed, the email concerns a response relating to the commissioning load of the Facility and attaches a document drafted by an executive assistant in the legal team.  These matters by themselves would support a conclusion that the claim for legal professional privilege was well-founded.  In any event, the specific evidence adduced by the defendant in relation to this document makes plain that the dominant purpose of the email was to request Ms Giudici to draft a document to provide to Ms Cowcher so that Ms Cowcher could provide legal advice.

4. For these reasons, I accept that the defendant's claim for privilege is properly made.

Documents 769 and 770

1. Document 769 is an email from Mr Anderson to Mr Nuttman, Ms   Giudici and Ms Cowcher dated 30 March 2017 titled  'Fwd:  Response to Notice: "South Hedland Power Purchase Agree ment - Commissioning Load"'.  The email attaches a PDF document (document 770).  In relation to the attachment, the defendant contends it has separately discovered this document but that this document is privileged based on the Propend principle.  

2. The defendant's evidence in relation to document 769 is that:[131]

   (a)in this email, Mr Anderson requested that Ms Giudici draft a document relating to the commissioning load for Ms Cowcher to review;

   (b)Mr Anderson's purpose in copying Ms Cowcher into the email was so that she knew her advice would be sought on the draft.

   [131] Anderson Affidavit [40(b)]; First Ryder Affidavit [138].

3. On the basis of this evidence, I accept that Mr Anderson intended to seek Ms Cowcher's advice in respect of each of the documents that were sent to her.  However that, of itself, does not mean that document 769 was created for the dominant purpose of seeking legal advice, but neither does it rule it out.

4. For this reason, before reaching a final conclusion in respect of these documents, I consider that I should inspect these documents.

Documents 810 to 813

1. These documents comprise an email exchange between Mr Anderson, Mr Nuttman and Ms Cowcher dated 6 April 2017 titled 'RE:  Help with load'.  

2. Objectively viewed, these emails are a reply to an earlier email.  From my review of the Original Schedule, the email exchange commenced with an email forwarded by Mr Anderson to Mr Keay on 6 April 2017.[132]  While the defendant originally objected to production of this document on the basis of legal professional privilege, the original email (document 801) was produced to the plaintiff on 17 March 2020.[133]  There are also emails exchanged between Ms Cowcher and Mr Anderson on the same date.

   [132] Document 801. 

   [133] Second Ryder Affidavit, 'CR50'.

3. On the basis of Mr Anderson' evidence as to his general practice at [54], I accept that Mr Anderson intended to seek Ms Cowcher's advice in respect of these documents that were sent to her.  However that, of itself, does not mean that these documents were created for the dominant purpose of seeking legal advice, but neither does it rule it out.

4. For this reason, before reaching a final conclusion in respect of these documents, I consider that I should inspect these documents.

Documents 913 and 914 (as well as documents 909, 910 and 911)

1. These documents are emails from Mr Anderson to Mr Nuttman and Ms Cowcher dated 20 April 2017.  They concern a proposed variation to the PPA and acceptance testing.  Documents 909 to 911 concern the same subject matter although the author is Mr Nuttman. 

2. The defendant's evidence in relation to these documents is that:[134]

   (a)on 20 April 2017 the plaintiff sent a draft letter to the defendant proposing that the testing of the Facility be done in accordance with PTC 22 instead of PTC 46 and that an engineering calculation be used to determine the steam turbine generator output at the Facility;

   (b)the PPA required that the testing be conducted in accordance with the requirements in schedule 14 of the PPA and PTC 46.  For this reason, the proposal required the defendant to agree to amend the PPA;

   (c)on 20 April 2017, Mr Anderson emailed Ms Cowcher for the dominant purpose of seeking her advice in relation to the proposal;

   (d)Ms Cowcher provided her legal advice by return email.

   [134] First Ryder Affidavit [118] - [120].

3. Objectively viewed, these emails are an email exchange between Mr Nuttman, Mr Anderson and Ms Cowcher concerning a proposed amendment to the PPA.  This, together with the specific evidence adduced by the defendant, supports a conclusion that the claim for legal professional privilege is well-founded. I consider that the plaintiff has not discharged its onus indicating otherwise.

Documents 990 and 991

1. These documents are both emails from Mr Anderson dated 11 May 2017.  Document 990 is to Ms Cowcher titled 'Re:  SHPS - Heat Rate Testing & PTC46' and document 991 is to Mr Nuttman copied to Ms Cowcher titled 'Re: SHPS - Heat Rate Curve Derivation'.  Document 990 was produced by the defendant with partial redactions on 28 January 2020 and 18 March 2020.

2. The defendant's specific evidence in relation to the first email is that the redacted portion contains Mr Nuttman's instructions to Ms Cowcher for her to review and provide legal advice.[135]  In relation to the second email, I have had regard to Mr Anderson’s evidence at [54] as to his general practice.

   [135] Second Ryder Affidavit [47] - [51].

3. Based on the limited number of recipients of these two emails and the specific evidence of the defendant in relation to the first email, I accept that the redacted portion of the first email (990) is privileged.  In relation to the second email (991), based on the date of the email and its subject matter, I do not consider that the plaintiff has discharged its onus of establishing that the defendant’s claim of privilege is mistaken or unfounded.

Document 1278 (as well as document 1267)

1. Document 1278 is an email from Mr Anderson to Mr Nuttman and Ms Cowcher dated 9 June 2017 titled 'Fwd: SHPS - Heat Rate Derivation'.  Document 1269 has an identical description and document 1267 has the same title but is sent by Mr Nuttman to Ms Cowcher and Mr Anderson.

2. The defendant's evidence in relation to this email is that Mr Anderson emailed Ms Cowcher and Mr Nuttman for the dominant purpose of obtaining legal advice in relation to matters concerning heat rate derivation.[136]  While Mr Anderson did not give specific evidence as to his purpose in copying in Mr Nuttman to this email, from the limited number of recipients of the email, his specific evidence in relation to this document and his evidence as to his general practice (namely that he copied Mr Nuttman into these emails to keep him up to date), I do not consider that the plaintiff has discharged its onus of establishing that the defendant's claim for privilege over these documents is unfounded or mistaken.

1. For these reasons, I do not consider that any 'issue waiver' has arisen in this case and the plaintiff's application for inspection of these documents is dismissed.

Conclusion

1. While the parties are to be commended on their continuing conferral after the application, affidavits and submissions were filed, the continued conferral meant that much of the information contained in the affidavits and submissions was superseded by the time the matter came on for hearing.  As a consequence, many of the documents which remained were out of context and it was necessary to review the Original Schedule in order to draw inferences as to the objective purpose of each document.

2. Ultimately, having considered the matter, it is my view that in respect of the majority of the documents, either the defendant’s claim for privilege is well-founded or alternatively, the plaintiff has not discharged its onus of proof to adduce sufficient evidence to displace the claim.

3. There are a number of documents in respect of which I was unable to discern the objective purpose of the document from the evidence before me.  I propose that these documents be provided to me for inspection prior to a final ruling being made on these documents.  These documents are Documents 534, 535, 537, 538, 546 - 549, 560, 561, 563 - 565, 686, 769 - 773, 810 - 813, 824, 826, 860, 977, 1212, 1287, 1458, 1601, 1602, 1702, 1705, 1878, 1908 - 1910, 1991, 2003, 2015 - 2017, 2034, 2082 - 2085, 2096, 2098, 2191, 2192, 2194, 2196, 2284, 2357, 2359, 2409, 2416, 2556 and 2559.

4. Before making any orders in respect of the application, I will hear from the parties.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

ME
Associate to the Honourable Justice Hill

20 OCTOBER 2020

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:

1. 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).[185]   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.

   [185] TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd [2020] WASC 364.

2. 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

1. 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.[186]

   [186] AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 [44(12)].

2. 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.

3. 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.[187]  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.

   [187] Plaintiff's submissions [30].

4. Second, in considering whether the email is privileged, I am reminded that the court should not take a narrow view and that legal advice is not confined to providing advice on the law but includes advice 'as to what prudently and sensibly should be done in the relevant legal context.'[188]

   [188] See Primary Reasons [25] and the authorities cited and footnoted therein.

Disposition

Multi-addressee emails

Emails from Andrew Nuttman

Documents 534 and 535

1. I dealt with these documents at [76] ‑ [81] of the Primary Reasons.

2. Having inspected the document, the redacted portion of the email is an email from Mr Keay to Ms Cowcher, which is copied to Mr Fewster, Mr Nuttman and Mr Garg.  It is clear on the face of the document that the redacted portion of the email seeks legal advice from Ms Cowcher and input from the other recipients on the same issue.  On this basis, I consider that the defendant's claim for privilege over the email and the attachment is properly made and should be upheld.

Document 1287

1. I dealt with this document at [125] - [128] of the Primary Reasons.

2. In relation to document 1287, having inspected this document, the email is addressed to 'B' which I infer and find to be a reference to Ms Cowcher.  It is clear that this email is a reply to an earlier email from Ms Cowcher to each of Mr Anderson and Mr Nuttman, copied to Ms Giudici.  On this basis, I am satisfied that the dominant purpose of Mr Nuttman in sending this email was to provide Ms Cowcher with instructions.

3. For this reason, I accept that the defendant's claim for privilege is properly made over this document and should be upheld.

Documents 2003, 2015, 2016 and 2017

1. I dealt with these documents at [129] - [132] of the Primary Reasons.

2. Document 2003 is an email from Mr Nuttman to Ms Cowcher, Mr Anderson and Ms Giudici dated 24 August 2017.  The email attaches a document (Document 2004) entitled 'how to conduct a plant performance test'.  From the Original Schedule, it appears that the defendant originally objected to inspection of this document.  I infer that this objection was resolved between the parties as document 2004 was not one of the Disputed Documents I was required to consider.

3. Having inspected this document, it is clear on the face of the document that the attached document was provided to Ms Cowcher as part of the continuum of communications for the dominant purpose of enabling Ms Cowcher to provide legal advice and for the other recipients to provide input on the same issue.  On this basis, I consider that the defendant's claim for privilege over document 2003 is properly made and should be upheld.

4. Document 2015 is an email from Mr Nuttman to Ms Cowcher and Mr Anderson, copied to Ms Giudici.  Having inspected this document, it is clear on the face of the document that the email was sent to Ms Cowcher for the dominant purpose of seeking legal advice from Ms Cowcher and that the other recipients to the email were copied in to keep them informed.  On this basis, I accept that the defendant's claim for privilege over document 2015 is properly made and should be upheld.

5. Document 2016 is a further email from Mr Nuttman to Ms Cowcher and Mr Anderson, copied to Ms Giudici on the same topic.  The email attaches document 2017, a memorandum from Mr Nuttman addressed to Ms Cowcher, and copied to Mr Anderson and Ms Giudici.  Having inspected these documents, it is clear on the face of the documents that both the email and the memorandum were sent to Ms Cowcher for the dominant purpose of seeking legal advice from Ms Cowcher and that the other recipients were copied in to keep them informed.  On this basis, I accept that the defendant's claim for privilege over documents 2016 and 2017 is properly made and should be upheld.

Documents 2082 to 2085

1. I dealt with these documents at [133] - [136] of the Primary Reasons.

2. Document 2082 is an email from Mr Nuttman to Ms Cowcher and Mr Anderson.  The email attaches document 2083 which is a memorandum from Mr Nuttman addressed to Ms Cowcher and copied to Mr Anderson and Ms Giudici.  Having inspected these documents, it is clear on the face of the documents that both the email and the memorandum were sent to Ms Cowcher for the dominant purpose of seeking legal advice from Ms Cowcher and that the other recipients were copied in to keep them informed.  On this basis, I accept that the defendant's claim for privilege over documents 2082 and 2083 is properly made and should be upheld.

3. Documents 2084 and 2085 are documents which are in almost identical terms.  On this basis, the same reasoning as set out in [18] applies to these documents.  Accordingly, I accept the defendant's claim for privilege is properly made and should be upheld.

Documents 2096 and 2098

1. I dealt with these documents at [137] - [139] of the Primary Reasons.

2. Document 2096 is an email from Mr Nuttman to Ms Cowcher, Mr Anderson and Mr Garg.  The document was produced with partial redactions to the plaintiff on 28 January 2020.  The defendant objects to production of the redacted portion on the basis that it contains information on which Ms Cowcher was advising.

3. Having inspected the document, I am satisfied that on the face of the document, the redacted portion of the document is addressed to Ms Cowcher.  On this basis, I accept that it was sent for the dominant purpose of seeking legal advice from Ms Cowcher and that the other recipients were copied in to the redacted portion to keep them informed.  On this basis, I accept that the defendant's claim for privilege over the redacted portion of document 2096 is properly made and should be upheld.

4. Document 2098 is an email sent by Mr Nuttman to the same recipients shortly after document 2096 in almost identical terms.  For this reason, the same reasoning as set out in [22] applies to this document.  Accordingly, I accept the defendant's claim for privilege is properly made over the redacted portion of the document and should be upheld.

Documents 2191, 2192 and 2194

1. I dealt with these documents at [119] of the Primary Reasons.

2. Document 2191 is an email from Mr Nuttman to Ms Cowcher and Mr Anderson dated 26 September 2017.  Documents 2192 and 2194 are identical documents and are almost identical to document 2191, although the email is sent some four hours later.

3. Having inspected these documents, it is clear on the face of the document that:

   (a)the Leidos Report was commissioned by the plaintiff and provided to the defendant; and

   (b)the email from Mr Nuttman was sent for the dominant purpose of providing Ms Cowcher with instructions and that Mr Anderson was copied in for his input and to keep him informed. 

4. On this basis, I accept that the defendant's claim for privilege over these documents is properly made and should be upheld. 

Documents 2196, 2284, 2357 and 2359

1. I dealt with these documents at [143] - [145] of the Primary Reasons.

2. Document 2196 is an email from Mr Nuttman to Ms Cowcher and Mr Anderson dated 26 September 2017.  Having inspected the document, the email is addressed to 'B' which I infer and find to be a reference to Ms Cowcher.  On this basis, it is clear that the email from Mr Nuttman was sent for the dominant purpose of providing Ms Cowcher with instructions and that Mr Anderson was copied in for his input and to keep him informed.

3. Document 2284 is an email from Mr Nuttman to Ms Cowcher, Mr Anderson and Ms Giudici dated 5 October 2017 which replies to an email sent by Ms Cowcher earlier that day.  Having inspected the document, the email is addressed to 'B' which I infer and find to be a reference to Ms Cowcher.  On this basis, I am satisfied that the email was sent by Mr Nuttman for the dominant purpose of providing Ms Cowcher with instructions and that Mr Anderson and Ms Giudici were copied in to keep them informed (as recipients of the original email from Ms Cowcher).

4. Document 2357 is an email from Mr Nuttman to Ms Cowcher and Mr Anderson dated 12 October 2017 and attaches document 2359.  Having inspected these documents, the email is addressed to 'Bethwyn' which I accept is a reference to Ms Cowcher.  On this basis, I am satisfied that these documents were sent by Mr Nuttman for the dominant purpose of providing Ms Cowcher with instructions and that Mr Anderson was copied in to keep him informed.

5. For these reasons, I accept that the defendant's claim for privilege over these documents is properly made and should be upheld.

Documents 2409 and 2416

1. I dealt with these documents at [146] - [149] of the Primary Reasons.

2. Document 2409 is an email from Mr Nuttman to Ms Cowcher and Mr Anderson dated 23 October 2017.  Document 2416 is an almost identical document sent shortly after document 2409.  Having inspected these documents, they concern the same subject matter as document 2357 and are also addressed to Ms Cowcher.  I find that these documents form part of the continuum of communication between Mr Nuttman and the defendant's internal legal counsel.  For the same reasons as set out at [30] ‑ [31], I accept the defendant's claim for privilege is properly made over these documents.

Emails from Matthew Anderson

Documents 769 and 770

1. I dealt with these documents at [161] - [164] of the Primary Reasons.

2. Having inspected these documents, on their face, the purpose of Mr Anderson's email to Ms Giudici is to request that she draft a document.  While I accept that Mr Anderson's purpose in copying Ms Cowcher into the email was so that she knew her advice would be sought, it is not clear on the face of the document which, if any, was the dominant purpose.

3. For these reasons, the defendant has not established that the dominant purpose in sending this email was to give Ms Cowcher instructions.  Accordingly, I do not consider the defendant's claim for privilege can be upheld in respect of these documents.  I would allow the plaintiff's application for production of these documents for inspection.

Documents 810 to 813

1. I dealt with these documents at [165] - [168] of the Primary Reasons.

2. Having inspected these documents, documents 810, 811 and 813 are part of an email chain that commences with an email from Ms Cowcher to Mr Anderson and Mr Nuttman.  Document 812 is an annexure to document 811.   I am satisfied that it is clear that these documents were sent by the author (Mr Anderson for 810 and 813 and for 811, Mr Nuttman) for the dominant purpose of providing Ms Cowcher with instructions and that the other recipient (Mr Nuttman or Mr Anderson) was copied in to keep him informed.  These documents are part of the continuum of communications between internal legal counsel and Mr Anderson and Mr Nuttman and includes Ms Cowcher's legal advice.  For these reasons, I am satisfied that the defendant's claim for privilege is properly made over these documents and should be upheld.

Documents 771, 772, 977, 1212, 1269

1. I dealt with these documents at [177] - [180] of the Primary Reasons.

2. Having inspected documents 771 and 772, it is clear on the face of these documents that they are identical to documents 769 and 770.  Accordingly, the same reasons apply to these documents as set out at [35] ‑ [37].  I would allow the plaintiff's application to for inspect these documents.

3. In relation to document 977, having inspected this document, I am satisfied that:

   (a)the purpose of Mr Anderson in sending this email to Ms Cowcher was to provide her with information which was relevant from a legal perspective; and

   (b)his purpose in sending the email to Ms Giudici was to keep her up to date. 

4. There is no evidence before me as to which was the dominant purpose of Mr Anderson.  While I accept that the copy of the email in Ms Cowcher's email inbox falls within the Propend principle, the copies of the emails in others do not.  For these reasons, I consider that the defendant has not established the dominant purpose in sending this email was to give legal instructions or that the defendant's claim for privilege can be upheld in respect of this document.  I would allow the plaintiff's application to inspect this document.

5. In relation to document 1212, having inspected this document, I am satisfied that:

   (a)the purpose of Mr Anderson in sending this email to Ms Cowcher was to provide her with information which was relevant from a legal perspective; and

   (b)his purpose in sending the email to Mr Nuttman and Ms Giudici was to keep them up to date. 

6. In relation to document 1269, having inspected the document and having regard to Mr Anderson's evidence in relation to this email[189] and his purpose in emailing Ms Cowcher, I am satisfied that the dominant purpose in sending this email was to obtain legal advice from Ms Cowcher and that he copied Mr Nuttman into the email to keep him up to date and so that Mr Nuttman could provide his input. For these reasons, I am satisfied that the defendant’s claim for privilege over the document should be upheld. 

   [189] Affidavit of Matthew David Anderson filed 17 January 2020 [44(c)].

7. There is no evidence before me as to which was the dominant purpose of Mr Anderson in sending this email.  While I accept that the copy of the email in Ms Cowcher's email inbox falls within the Propend principle, the copies of the emails in others do not.  For these reasons, I consider that the defendant has not established the dominant purpose in sending this email was to give legal instructions or that the defendant's claim for privilege can be upheld in respect of this document.  I would allow the plaintiff's application to inspect this document.

Emails from Atul Garg

Documents 1702 and 1705

1. I dealt with these documents at [209] - [212] of the Primary Reasons.

2. Having inspected these documents, it is clear on the face of these emails that they are part of an email chain between Mr Garg, Mr Anderson and Ms Cowcher, copied to Mr Humphries.  I am satisfied that on the face of these documents, the redacted portions of these documents contain Ms Cowcher's advice and is part of a continuum of communications between these individuals for the dominant purpose of providing instructions or giving legal advice.  For this reason, I am satisfied that the defendant's claim for privilege is properly made over the redacted portions of these documents and should be upheld.

Communications between non-lawyers

Document 686

1. I dealt with this document at [237] ‑ [238] of the Primary Reasons.

2. Having inspected this document, it is clear that the redacted portion of the email is part of an email chain between Ms Cowcher and Mr Keay, which Mr Anderson and Mr Nuttman are added into.  I am satisfied that on the face of these documents, the redacted portions of this document contains Ms Cowcher's advice and is part of a continuum of communications between these parties for the dominant purpose of providing instructions or giving legal advice.  For this reason, I am satisfied that the defendant's claim for privilege is properly made over the redacted portions of this document and should be upheld.

Documents 537, 538, 546, 547, 548, 549, 560, 561, 563 and 564

1. I dealt with these documents at [243] - [246] of the Primary Reasons.

2. Having inspected document 537 and its attachment, document 538, it is clear on the face of the document that it is an email from Mr Garg to Mr Keay which is part of an email chain commencing with an email from Mr Keay to Ms Cowcher copied to Mr Fewster, Mr Nuttman and Mr Garg attaching document 538.  It is this email that is the subject of the redaction by the defendant.  I am satisfied that an email from Mr Keay to Ms Cowcher which is copied to a limited number of other people is sent for the dominant purpose of seeking Ms Cowcher's advice on the attached document and to obtain the input of others on the document.  For these reasons, I am satisfied that the defendant's claim for privilege is properly made over the redacted portion of 537 as well as document 538 and should be upheld.

3. Documents 546 to 549 and 563 and 564 are all copies of different versions of document 538.  Having inspected these documents (including the electronic versions I was provided of documents 547 and 548), I am satisfied that the dominant purpose of these documents was to record Ms Cowcher's advice or the instructions she was given.  For this reason, I consider that the defendant's claim for privilege is properly made over each of these documents and should be upheld.

4. Having inspected documents 560 and 561, on its face, document 560 is an email from Mr Keay to Mr Garg which is part of an email chain commencing with an email from Ms Cowcher to Mr Keay, copied to Mr Fewster, Mr Garg and Mr Nuttman.  It is this email that is the subject of the redaction.  I am satisfied that an email from Ms Cowcher to Mr Keay, which is copied to a limited number of other people, is sent for the dominant purpose of providing legal advice.   In respect of the attachment (document 561), I have inspected both a hard copy and electronic version of the document.  I am satisfied that the attachment contains Ms Cowcher's legal advice and, as a result, is properly subject to a claim for legal professional privilege. For these reasons, I am satisfied that the defendant's claim for privilege is properly made over the redacted portion of 560 as well as document 561 and should be upheld.

Documents 1601, 1602, 2556 and 2559

1. I dealt with these documents at [249] - [252] of the Primary Reasons.

2. Having inspected documents 1601 and 1602, document 1601 is an email from Ms Giudici to Mr Anderson which is part of an email chain commencing with an email from Mr Nuttman to Mr Anderson and Ms Cowcher which is copied to Mr Garg and Ms Giudici.  It is this email that is the subject of the redaction. 

3. Consistent with the approach that I have taken in relation to other documents, I am satisfied that the email from Mr Nuttman was sent to Ms Cowcher for the dominant purpose of obtaining legal advice and was sent to the other recipients for the purpose of obtaining their input on the matters raised.  For these reasons, I am satisfied that the defendant's claim for privilege is properly made over the redacted portion of 1601 as well as its attachment (document 1602) and should be upheld.

4. Having inspected document 2556, this document is an email from Ms Giudici to Mr Anderson which forward an email from Ms Giudici to Ms Cowcher.  It is this email that is the subject of the redaction.  I am satisfied that an email from Ms Giudici to Ms Cowcher was sent for the dominant purpose of providing Ms Cowcher with instructions and is properly the subject of a claim for privilege.  For these reasons, I am satisfied that the defendant's claim for privilege is properly made over the redacted portion of 2556 and should be upheld.

5. Having inspected document 2559, this document is an email from Ms Giudici to Mr Anderson which forwards an email from Ms Cowcher to Mr Huston.  It is this email that is the subject of the redaction.  I am satisfied that an email from Ms Cowcher to Mr Huston is properly the subject of a claim for privilege.  For these reasons, I am satisfied that the defendant's claim for privilege is properly made over the redacted portion of 2559 and should be upheld.

Documents with insufficient description

1. As set out in [254] of the Primary Reasons, the documents which are not sufficiently described in the Amended Schedule upon which any objective inference can be drawn are documents 565, 773, 824, 826, 860, 1458, 1878, 1908, 1909, 1910, 1991, 2034.

2. Having inspected documents 565, 773, 824, 826, 860, 1878, 1908, 1909, 1910, 1991 and 2034, it is clear on the face of each of these documents that each is an email prepared by Ms Cowcher.  On this basis, I am satisfied that each of these documents was prepared for the dominant purpose of obtaining instructions or providing legal advice and is properly the subject of a claim for privilege.  For this reason, it is my view that the defendant's claim for privilege is properly made and should be upheld.

3. Having inspected document 1458, it is clear on the face of the document that it is an email sent by Ms Cowcher to Ms Giudici, copied to Mr Anderson.  On this basis, I am satisfied that the email forms part of the continuum of communications between inhouse counsel and representatives of the defendant and was sent for the dominant purpose of providing legal advice and is properly the subject of a claim for privilege.  For this reason, I consider that the defendant's claim for privilege is properly made and should be upheld.

Conclusion

1. Having inspected the documents provided to me by the defendant in accordance with the Primary Reasons, it is my view that the defendant has not established that the dominant purpose of documents 769, 770, 771, 772, 977 and 1212 was to give or obtain legal advice.  Accordingly, these documents should be produced for inspection by the plaintiff.

2. In relation to the remaining documents, it is my view that the claim for privilege is properly made and the plaintiff's application to inspect these documents should be dismissed.

3. I will hear from the parties as to the precise orders, including orders as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MG
Research Orderly to the Honourable Justice Hill

28 OCTOBER 2020