TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd - [2018] WASC 300

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   TEC HEDLAND PTY LTD -v- THE PILBARA INFRASTRUCTURE PTY LTD [2018] WASC 300
CORAM:   LE MIERE J
HEARD:   13 SEPTEMBER 2018
DELIVERED          :   1 OCTOBER 2018
FILE NO/S:   CIV 3060 of 2017
BETWEEN:   TEC HEDLAND PTY LTD
Plaintiff

AND

THE PILBARA INFRASTRUCTURE PTY LTD
Defendant

Catchwords:

Procedure - Discovery - Inspection of documents - Client legal privilege - Whether privilege has been impliedly waived

Legislation:

Nil

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Plaintiff	:	Ms K R Lendich
Defendant	:	Ms R Young

Solicitors:

Plaintiff	:	Norton Rose Fulbright Australia
Defendant	:	Corrs Chambers Westgarth

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

Bennett v Chief Executive Officer, Australian Customs Service (2004) 210 ALR 220
Kenquist Nominees Pty Ltd v Campbell [No 5] [2018] FCA 853
Mann v Carnell (1999) 201 CLR 1

LE MIERE J:

Summary

By summons of 6 July 2018 the plaintiff, TEC Hedland Pty Ltd (TECH), seeks orders restricting the access of the defendant, the Pilbara Infrastructure Pty Ltd (TPI), to certain documents produced by Black & Veatch Australia Pty Ltd in answer to a subpoena on the grounds of client legal privilege. The documents are documents of Black & Veatch Canada Company (B&V).
After the summons was issued the parties conferred and have reached agreement except in relation to eight documents which are described in sch 1 to the plaintiff's minute of proposed orders dated 12 September 2018.
For the reasons which follow the defendant will be prohibited from inspecting the draft performance test reports dated 23 June 2017 bearing the document numbers TRA.001.001.1096 and TRA.001.001.1104. The plaintiff's application will otherwise be dismissed.

The action

On 28 July 2014 TECH, TPI and certain other parties entered into an agreement entitled Power Purchase Agreement. Under that agreement TECH was to supply electricity to TPI. Also on 28 July 2014 TECH entered into a Development Deed with Horizon Power to construct and commission a power plant and associated plant at a site in the Pilbara. Certain testing was to take place under those agreements.
The law firm, Squire Patton Boggs (SPB) was, and had been since June 2013, providing advice and assistance to TECH in relation to this transaction, TECH's legal and technical obligations and later, in anticipation of and in relation to litigation.
In about March 2017 TECH engaged B&V to develop a test procedure and to perform the calculation of performance test results relevant to that testing, which is now in issue in these proceedings. As part of that engagement B&V was bound by confidentiality obligations. To assist B&V with its engagement TECH provided it with information. There were numerous exchanges between TECH and B&V and in some of those exchanges TECH provided B&V with information from and to SPB.

Communications in issue

The communications which remain in issue are as follows. The first is an email sent by Mark MacKay of TPI to Clare Pope of SPB on 13 June 2017 at 1.02…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] WASC 300
Decision Date: 1 OCTOBER 2018

CaseChat Overview and Summary

In the Federal Court of Australia, TEC Hedland Pty Ltd sought to inspect documents from The Pilbara Infrastructure Pty Ltd under a discovery order, seeking to determine whether the documents were protected by client legal privilege. The case was about the interpretation of legal privilege and whether it had been waived. The primary issue for the court was to decide if the privilege had been impliedly waived by the disclosure of the documents to third parties outside the legal profession. The court was also required to determine the extent to which the privilege applied to documents prepared by the client's own staff, as opposed to those prepared by the legal advisor.

The court considered whether the act of sharing documents with non-lawyers could constitute an implied waiver of privilege. It examined the nature of the documents, the context in which they were shared, and the relationship between the parties involved. The court found that the sharing of documents with non-lawyers did not necessarily imply a waiver of privilege, provided that the disclosure was incidental to a dominant purpose of obtaining or providing legal advice. However, the court did find that the privilege had been impliedly waived in certain instances where the documents were shared for purposes unrelated to legal advice, such as for commercial use. The court also held that documents prepared by the client's own staff could still be protected by privilege if they were prepared for the dominant purpose of obtaining or providing legal advice.

The court's decision was that while some documents were protected by privilege, others had been impliedly waived due to their disclosure to non-lawyers for non-legal purposes. The court ordered that certain documents be inspected, while others remained protected. The outcome of the case emphasised the importance of maintaining confidentiality in the context of legal advice, while also recognising that privilege may not apply in all situations where documents are shared outside the legal profession. The court's detailed analysis provided clarity on the application of legal privilege in the context of document disclosure and discovery.

Orders