Walsh v WorleyParsons Limited (No. 2)
[2015] VSC 310
•26 June 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S CI 2014 04712
| JOANNE WALSH | Plaintiff |
| v | |
| WORLEYPARSONS LIMITED (ACN 096 090 158) | Defendant |
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JUDGE: | ALMOND J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF RULING: | 26 June 2015 |
CASE MAY BE CITED AS: | Walsh v WorleyParsons Limited (No. 2) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 310 |
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PRACTICE AND PROCEDURE – Objection by plaintiff to inspection of documents produced under subpoena – Objection based on client legal privilege – Litigation privilege – Evidence Act 2008, ss 117, 119 – Whether plaintiff a ‘client’ within the meaning of the Act at the relevant dates – Whether relevant communications were confidential – Whether communications made for the dominant purpose of being provided with professional legal services in relation to litigation or anticipated litigation – Whether plaintiff has acted inconsistently with maintenance of privilege – Client legal privilege found in relation to three out of four documents – No waiver – Objections upheld in relation to three out of four documents.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Norman O’Bryan SC Michael Symons | Stewart Peters Lawyer |
| For the Defendant | Wendy Harris QC Robert Craig Jennifer Findlay | Herbert Smith Freehills |
HIS HONOUR:
During January and February 2015, the defendant, WorleyParsons Limited (’WorleyParsons’), caused to be issued 18 subpoenas to produce documents to the Prothonotary, including subpoenas addressed to Mr Mark Elliott, a solicitor and director of Melbourne City Investments Pty Ltd (‘MCI’).
The plaintiff, Ms Joanne Walsh, made application for an order that the subpoenas, including a subpoena addressed to Mr Elliott dated 19 February 2015 (‘Second February Elliott subpoena’), be set aside.
On 15 April 2015, the Court ruled that (among other things) the Second February Elliott subpoena be set aside in part.[1] Subsequently Mr Elliott produced documents in answer to the subpoena, including four documents which were contained in a sealed envelope marked ‘Privileged’.[2]
[1]Authenticated orders in this regard were made in this regard on 29 April 2015.
[2]Affidavit of Christine Yun Tran affirmed 13 May 2015 (‘Tran affidavit’), [29].
WorleyParsons’s solicitors requested the plaintiff to provide an enumerated list of documents setting out the date and brief description of each document over which the plaintiff objects to inspection. In response, Ms Walsh’s current solicitor, Mr Peters, provided the details in a schedule as follow:
Schedule[3]
[3]Tran affidavit, [33], [34]; Exhibit CYT-19. Enumeration column added to schedule.
No.
To
From
Date
Subject
1
Joanne Walsh
Mark Elliott
25.07.14
Attaching Summons of 21.07.14 and Affidavit of Mark Elliott of 21.07.14 and addition of co-plaintiff.
2.
Joanne Walsh
Mark Elliott
29.07.14
Attaching order of 29.07.14 joinder of co-plaintiff, case and solicitor appointment.
3.
Joanne Walsh & Michael Walsh
Mark Elliott
06.09.14
Signed consent to addition as a plaintiff of 15.07.14 and form of consent to be named as plaintiff and regarding payment and separate/ case.
4.
Mark Elliott
Joanne Walsh
27.11.14
Attaching earlier email chain on 27 and 26.11.14 regarding case and engagement of new lawyer.
Ms Walsh objects to inspection of these documents.
Ms Walsh made two affidavits in support of her opposition to inspection of the documents. In the first affidavit, Ms Walsh deposes, relevantly:
2.During 2014, I read an advertisement published in the Australian Financial Review concerning a class action against WorleyParsons which had been commenced by Melbourne City Investments (MCI) in this Honourable Court. as a result of the advertisement, I contacted Mark Elliott, who informed me that WorleyParsons was challenging whether MCI was an appropriate plaintiff, but there appeared to be little doubt that I was. I agreed to become co-plaintiff with MCI in its existing class action. I later agreed to become the representative plaintiff in a new and separate class action against the defendant alleging that it had breached its continuous disclosure obligations under s 674 Corporations Act, on condition that I was indemnified in respect of legal fees and adverse costs orders and would receive modest remuneration for all work I did on the case. I entered into a deed of indemnity with Melbourne City Investments Pty Ltd in respect of those matters. The deed was amended in January 2015. [4]
[4]Affidavit of Joanne Maree Walsh sworn 17 March 2015 (‘First Walsh affidavit’).
In the second affidavit Ms Walsh deposes, relevantly:
4.Since 28 November 2014, I have engaged Stewart Peters as my solicitor in this proceeding.
5.Prior to 28 November 2014, I engaged Mark Elliott as my solicitor in relation to litigation (including anticipated litigation) against WorleyParsons Limited. My engagement of Mark Elliott was:
(a)in relation to a case in the Supreme Court of Victoria between Melbourne City Investments Pty Ltd and WorleyParsons Limited (S CI 2013 06356), to which I consented to be added as a co-plaintiff; and
(b) in relation to this proceeding, in which I am the plaintiff.
6.The documents that have been produced to the Prothonotary, to which I object to inspection on the grounds of privilege, were created in the course of my engagement of Mark Elliott as my solicitor and relate to the giving of instructions and receipt of legal advice in connection with the proceedings identified above.[5]
[5]Affidavit of Joanne Marie Walsh sworn 5 May 2015 (‘Second Walsh affidavit’), [4]-[6].
In support of her privilege claims Ms Walsh relies on s 119 of the Evidence Act 2008 (Vic) (‘the Act’). Section 119 provides:
Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
(a)a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b)the contents of a confidential document (whether delivered or not) that was prepared—
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
The person resisting inspection by claiming the privilege has the onus of establishing that privilege attaches to the relevant documents. In HRF Nominees Pty Ltd (in liq) v Man Civil Constructions Pty Ltd (No 2),[6] Derham AsJ addressed the question of onus and evidentiary requirements as follows:
The [Plaintiff being the party claiming privilege] bear[s] the onus of establishing the claims, including each factual element necessary to establish the requisite dominant purpose. In that respect, focused and specified evidence is required in respect of each communication, rather than mere generalised assertion let alone opaque and repetitious verbal formulae. There should be sufficient evidence which proves directly or by inference that the dominant purpose for the communication was for the relevant client to be given or obtain legal advice, or satisfied the test for litigation privilege. The communication also has to be confidential.
[6][2014] VSC 613, [30].
The documents in issue span the period 25 July 2014 to 27 November 2014.
WorleyParsons contends that neither the list of documents, nor the plaintiff’s affidavits, provide sufficient detail to support the claim of client legal privilege in respect of the documents. WorleyParsons relies on Halliday v ACN 003 075 394 Pty Ltd,[7] where the Full Court of this Court stated that ‘the appropriate method of describing privileged documents is to enumerate them, that is to list them, and then to identify the basis on which the privilege is claimed’.
[7](Unreported, Supreme Court of Victoria, Ormiston, J D Phillips and O’Brien JJ, 11 April 1994) 7.
It is apparent there was some informality in the approach taken by the solicitor for the plaintiff in providing details of the documents to which the plaintiff takes objection. In particular, the basis on which privilege is claimed was not specified. Nevertheless, each communication was sufficiently identified by a description in the schedule. The failure to identify the bases on which privilege is claimed in the letter of 8 May 2015 is of no consequence. When the letter is read in conjunction with Ms Walsh’s first affidavit sworn on 5 May 2015, it is clear that she objects to inspection of each document on the grounds of client legal privilege, specifically litigation privilege.[8]
[8]Second Walsh affidavit, [4]-[6], reproduced in [7] above.
WorleyParsons also contends that:
(a)section 119 of the Act does not apply to the documents because the plaintiff has not established that:
(i)she was a ‘client’ within the meaning of the Act at the time of the communications;
(ii)any of the documents constitute a confidential communication for the ‘dominant purpose of the client being provided with professional legal services’ within the meaning of the Act; and
(iii)any of the documents is a ‘confidential communication’ within the meaning of the Act.
(b)maintenance of the privilege is inconsistent with the filing of and reliance by Ms Walsh on her first affidavit; and
(c)in relation to documents 3 and 4 privilege has been impliedly waived.
Was Ms Walsh a ‘client’ within the meaning of the Act?
WorleyParsons submits that:
· The first Walsh affidavit does not establish the date on which it is said that a lawyer/client relationship arose between Ms Walsh and Mr Elliott;
· The second Walsh affidavit only goes so far as to state, relevantly, ‘prior to 28 November 2014 I engaged Mark Elliott as my solicitor’; and
· The available evidence indicates that Mr Elliott was not Ms Walsh’s solicitor at the time of each of the communications (dated 25 July 2014, 29 July 2014, 6 September 2014 and 27 November 2014 respectively).
In support of these submissions WorleyParsons relies on the following matters.
Ms Walsh deposes that she contacted Mr Elliott during 2014 after reading an advertisement in the Australian Financial Review which invited any person who held shares in WorleyParsons on 20 November 2013 to contact ‘the plaintiff’s [MCI]’s solicitor’ to determine her eligibility to participate in the class action.[9]
[9]First Walsh affidavit, [2]; Exhibit CYT-15, Copy advertisement produced in response to Second February Elliott subpoena dated 23 April 2015.
Having regard to this context, WorleyParsons submits that it is reasonable to infer that when Ms Walsh first contacted Mr Elliott, she contacted him knowing him to be the solicitor for MCI and not with the expectation that Mr Elliott was her solicitor or that a relationship of trust and confidence existed between herself and Mr Elliott.
During June 2014, Ms Walsh and Mr Elliott communicated by email. Mr Elliott asked Ms Walsh when had she bought her shares and on 8 June 2014 Ms Walsh gave him the details of her share purchase. On 27 June 2014, Mr Elliott asked Ms Walsh whether she had any interest in being the co-plaintiff in the case. Ms Walsh responded that she was not sure what was involved and a meeting was arranged to discuss the proposal. As Mr Elliott was in Melbourne and Ms Walsh was in Sydney it was agreed that they (together with Ms Walsh’s husband) would have a discussion on 1 July at 5.30 pm.
On Thursday 3 July 2014 Ms Walsh emailed Mr Elliott, referred to the discussion and advised that she (and her husband) had discussed the concept (of being co-plaintiff) and wanted further clarification on a couple of things. She asked Mr Elliott to call her to discuss. In particular, Ms Walsh asked, in substance, whether she would be co-plaintiff or plaintiff, whether there were any personal legal ramifications if the proceeding proved to be unsuccessful and the hourly rate to be agreed. Ms Walsh also stated that at some stage she needed to meet Mr Elliott at his office and looked forward to hearing from him soon.[10]
[10]Tran affidavit; Exhibit CYT-15 at 6.
In my view, it is not evident from these communications that a lawyer/client relationship existed between Ms Walsh and Mr Elliott at this time, and I could not infer that a relationship of trust and confidence existed between Ms Walsh and Mr Elliott to suggest a lawyer/client relationship had arisen at that point.
On 22 July 2014, MCI filed a summons in its proceeding against WorleyParsons seeking to add Ms Walsh as second plaintiff.[11] This application was filed on behalf of MCI.
[11]Tran affidavit, [9].
WorleyParsons submits that there is no evidence as to whether Mr Elliott was at that time engaged as solicitor for Ms Walsh nor is there any evidence as to the date upon which he commenced to act for her.
In Ms Walsh’s second affidavit, Ms Walsh deposes that she engaged Mr Elliott as her solicitor (prior to 28 November 2014) in relation to the MCI proceeding to which I consented to be added as a co-plaintiff; and in relation to this proceeding in which I am the plaintiff.[12]
[12]Second Walsh Affidavit, [5].
On 23 July 2014 (the day after MCI filed its summons seeking to add Ms Walsh as second plaintiff to the MCI proceeding), Ferguson J ruled in two other group proceedings brought by MCI (represented by Mr Elliott in each action) that Mr Elliott ought to be restrained for acting for MCI whilst it is the lead plaintiff and that the proceedings ought not be permitted to continue as group proceedings whilst MCI and Mr Elliott acted in tandem as plaintiff and solicitor.
As a result of this ruling, on 25 July 2014 the solicitors for WorleyParsons wrote to Mr Elliott inviting him to withdraw as solicitor on the record in the MCI proceeding. On the same day, Tan Partners filed a Notice of Change of Solicitor in the MCI proceeding notifying WorleyParsons and the Court that Tan Partners had been appointed as solicitors for MCI and accordingly Mr Elliott was no longer acting as solicitor for MCI.
On 28 July 2014, and again on 5 August 2014, the solicitors for WorleyParsons requested Tan Partners to confirm, among other things, whether it was also acting for Ms Walsh in the MCI proceeding.
By letter dated 5 August 2014, Tan Partners confirmed that Tan Partners was acting for Ms Walsh in the MCI proceeding without specifying the precise date upon which it was engaged to act for Ms Walsh.
Both parties seek to rely on inferences from the available evidence.
In its first written submissions WorleyParsons submitted that Tan Partners is likely to have commenced to act for Ms Walsh either on a date it commenced to act on behalf of MCI (i.e. no later than 25 July 2014 when the Notice of Change of Solicitor was filed) or on 5 August 2014 when Tan Partners advised the solicitors for WorleyParsons that it was acting for Ms Walsh in the MCI proceeding.
In its first written submissions, counsel for Ms Walsh submitted that as a result of the newspaper advertisement the plaintiff contacted Mr Elliott for the first time and thereafter until 28 November 2014 Mr Elliott acted as the plaintiff’s solicitor.[13] In my view the notion of a continuous retainer from the time of first contact on 7 June 2014 until 28 November 2014 is not borne out by the communications referred to above.
[13]Plaintiff’s submissions dated 6 May 2015, [5] and [6].
In written reply submissions, counsel for Ms Walsh submitted that Ms Walsh’s evidence that she was a client of Mr Elliott’s prior to the change of her solicitor on 28 November 2014 is a sufficient basis upon which to objectively ascertain that Ms Walsh had a lawyer/client relationship with Mr Elliott at the relevant time.[14] I do not accept this submission. Ms Walsh’s statement is too vague and open ended on which to base findings without regard to other objective evidence. In its reply submissions, counsel for Ms Walsh also submits that the existence of a lawyer/client relationship is objectively demonstrated, at least from the date of filing of a summons on 22 July 2014 pursuant to which Ms Walsh provided her consent to be added as a plaintiff in the MCI proceeding and that Ms Walsh’s entry into a deed of indemnity with MCI on 2 July 2014 permits the drawing of an inference that from on or before that date Ms Walsh received advice concerning acting as a co-plaintiff in the MCI proceeding, including the consideration that Ms Walsh could incur a liability for costs in so acting and the mechanisms available to Ms Walsh to mitigate that risk.[15]
[14]Plaintiff’s reply submissions dated 25 May 2015, [3].
[15]Plaintiff’s reply submissions dated 25 May 2015, [4(iii)] and [4(iv)].
In effect, WorleyParsons submits that the Court should infer that there was no retainer with Mr Elliott on 25 July 2014 and 29 July 2014. In effect, Ms Walsh submits that the Court should infer there was a retainer on the relevant dates in July 2014 from a combination of her general statement that she had engaged Mr Elliott as her solicitor ‘prior to 28 November 2014’ and objective evidence suggesting the existence of a lawyer/client relationship from her entry into a deed of indemnity with MCI on 2 July 2014 or at least from the filing on 22 July 2014 of her consent to be added as a plaintiff in the MCI proceeding.
In order to be in the best position to determine the question, I examined the potentially privileged documents to see whether they shed any light on the question of whether Ms Walsh and Mr Elliot were in a lawyer/client relationship as objectively ascertained.[16]
[16]In orders made by the Court (by consent) on 29 April 2015, it was recorded in ‘Other Matters’ that ‘the parties acknowledge that his Honour will, for the purposes of determining the plaintiff’s objection to inspection, likely inform himself of the contents of the potentially privileged documents, and further agree to waive any objection that they might otherwise raise on this account to his Honour hearing any future applications in, or the substantive trial of, this proceeding.’
In my view, the content of the communications between Ms Walsh and Mr Elliott dated 25 July 2014 and 29 July 2014 are objectively consistent with a lawyer/client relationship existing at that time.
In particular, I note that the contents of the 29 July 2014 communication are consistent with conduct of a solicitor reporting to his client, despite the possibility that at the time of that communication Tan Partners may have already been appointed to act for both Mr Elliott and Ms Walsh shortly prior to 29 July 2014.
In my view it can be inferred, and I do infer, that there was a lawyer/client relationship between Ms Walsh and Mr Elliott in relation to the MCI proceeding on 25 July 2014 and 29 July 2014. I infer that a lawyer/client relationship between Ms Walsh and Mr Elliott subsisted at that time even though it may have overlapped with the date upon which Tan Partners was appointed as the solicitor for both MCI and Ms Walsh in the MCI proceeding. Without disclosing the contents of the documents dated 25 and 29 July 2014, in my view, it appears to me that Mr Elliott was providing professional legal services relating to the MCI proceeding on those dates.
However, I do not accept that the evidence justifies the conclusion that Mr Elliott continued to act in the capacity as solicitor for Ms Walsh in relation to the MCI proceeding (save perhaps for a period of transition around the end of July 2014). Ms Walsh does not refer to a continuous retainer of Mr Elliott or a retainer for any specific period, time frame or time frames. The assertion that Mr Elliott continued to act for Ms Walsh in relation to the MCI proceeding even after Mr Elliott ceased to act for MCI in that proceeding is not borne out by the evidence. With due respect to Ms Walsh, her evidence on this issue is too vague and generalised to be able to draw that conclusion.
Indeed, there are indications to the contrary. First, Tan Partners were appointed as independent solicitors to alleviate a conflict of interest identified by Ferguson J in two other group proceedings brought by MCI against Treasury Wines Estates and Leighton Holdings Ltd respectively.[17] In the TWE proceedings, Ferguson J ruled that Mr Elliott ought to be restrained from acting for MCI whilst it is a lead plaintiff and that the proceedings ought not be permitted to continue as group proceedings whilst MCI and Mr Elliott act in tandem as plaintiff and solicitor.
[17]MCI v Treasury Wines Estates Ltd & Leighton Holdings Limited; Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (No 3) [2014] VSC 340.
Subsequently Tan Partners, by letter dated 5 August 2014, advised the solicitors for WorleyParsons that they had read the decision of Ferguson J and confirmed that Tan Partners were independent solicitors, that they acted for Ms Walsh in the MCI proceeding and would ‘act for the plaintiffs in the manner contemplated by her Honour in that decision’.[18] I accept the submission by counsel for WorleyParsons that it is reasonable to infer from this statement that Tan Partners were appointed as solicitors for MCI and also for Ms Walsh to alleviate the conflict of interest identified by Ferguson J in the TWE ruling and to provide independent legal representation to the parties without the conflict of interest brought about by the participation of Mr Elliott. In the absence of compelling evidence, in my view, it is not reasonable to infer that Ms Walsh continued to retain Mr Elliott on her behalf in that proceeding so as to retain two solicitors to simultaneously represent her interests in that proceeding, one who was independent and one was not.
[18]Tran affidavit, [13]; Exhibit CYT-5.
Further, the terms of a deed of indemnity the plaintiff entered into with MCI on about 2 July 2014 provide that Ms Walsh ‘will accept and act promptly on all advice which she is given by the solicitors and counsel for the Group in connection with the Proceedings and will not consult with or engage any other solicitors or counsel in connection with the Proceedings whilst she remains the Plaintiff.’[19] When Tan Partners filed a Notice of Change of Solicitors on behalf of MCI Tan Partners became the solicitors for the group. Mr Elliott is the principal of MCI, which is the counterparty to the deed of indemnity. Accordingly, he was well aware of the contents of the deed of indemnity. In the circumstances (making allowance for a period of transition around the end of July 2014) it is, in my view, unlikely that Mr Elliott would have continued to act as solicitor for Ms Walsh and allow her to breach the terms of the deed.
[19]Tran affidavit, [8]; Exhibit CYT-8, Deed of Indemnity dated 2 July 2014, clause 2 (emphasis added).
In the result I am satisfied that Mr Elliott acted as Ms Walsh’s solicitor in relation to the MCI proceeding in the latter part of July 2014 until approximately 29 July 2014 but ceased to be engaged as her solicitor in the MCI proceeding after Tan Partners had on 5 August 2014 expressly stated that that firm acted for and on behalf of both MCI and Ms Walsh in that proceeding.
Walsh proceeding
On 8 September 2014, the writ and statement of claim was filed in the current proceeding (‘Walsh proceeding’) against WorleyParsons, in which Ms Walsh is the plaintiff. Mr Elliott is named as Ms Walsh’s solicitor in these court documents.
On 26 November 2014, the solicitors for WorleyParsons received an email from Mr Elliott confirming that he had ceased to act in relation to the Walsh proceeding as of that day and that Mr Stewart Peters had agreed to act as solicitor.[20] This evidence suggests that a lawyer/client relationship existed between 8 September 2014 and 26 November 2014. The question arises whether a lawyer/client relationship existed between Mr Elliott and Ms Walsh outside those dates specifically on 6 September 2014 (the date of document 3) and 27 November 2014 (the date of document 4). WorleyParsons submits that the evidence does not establish that a lawyer/client relationship existed between Mr Elliott on either of those dates and thus litigation privilege is not attracted under s 119 of the Act.
[20]Tran affidavit, [23]; Exhibit CYT-10.
In the absence of evidence from Ms Walsh as to precisely when she engaged Mr Elliott in relation to this proceeding, the Court is in effect being asked to infer that Ms Walsh’s retainer of Mr Elliott was on foot at least on 6 September 2014 (two days before this litigation commenced) and remained on foot after 26 November 2014 despite Mr Elliott’s emailed advice to the solicitors for WorleyParsons on 26 November 2014 that he had ceased to act in the matter that day.[21]
[21]Tran affidavit, [23]; Exhibit CYT-10.
Ms Walsh contends that it is highly improbable that the lawyer/client relationship commenced only on the Monday when the written statement of claim in the proceeding was filed and that email correspondence on the preceding Saturday with the solicitor who was named in the writ should be treated as having occurred in circumstances in which it is reasonable to infer that a lawyer/client relationship had already commenced. I accept this submission.
In my view one can readily infer, and I do infer, that Ms Walsh’s retainer of Mr Elliott in relation to this proceeding was, in all probability, on foot at least on 6 September 2014, two days before the litigation was commenced. It seems to me very likely that Ms Walsh would have had to have had the opportunity prior to 8 September 2014 to review the writ and statement of claim in the proceeding about to be filed on her behalf or to at least have the substance of the claims made in the foreshadowed proceeding explained to her and to give instructions with respect to its commencement. In my view, it is very likely that Mr Elliott was retained as solicitor for Ms Walsh in relation to the new proceeding by 6 September 2014 and that Ms Walsh was the client within the meaning of the Act at the time of the communication on that day.
The position is less clear with respect to document 4, which is dated 27 November 2014, the day after Mr Elliott had advised that he had ceased to act for Ms Walsh in the proceeding and the day before Mr Peters filed a Notice of change of solicitor and advised the solicitors for WorleyParsons that he had filed the notice on the morning of 28 November 2014.
Ms Walsh submits that in circumstances in which a change of practitioner form was filed by Mr Peters on 28 November 2014, it is disingenuous for WorleyParsons to characterise a transitional period in which the change of solicitor was contemplated but had not yet occurred as a period during which Ms Walsh was without any legal representation.[22]
[22]Plaintiff’s reply submissions dated 25 May 2015, [4(i)].
Given the unequivocal statement of Mr Elliott that he had ceased to act as solicitor on 26 November 2014, the prima facie position is that the lawyer/client relationship in relation to this proceeding had ceased on that date and the obvious inference would be that communications between Mr Elliott and Ms Walsh after that date (e.g. on 27 November 2014) would not be in the course of her engagement of Mr Elliott as her solicitor, despite Ms Walsh deposing to the contrary.[23]
[23]Second Walsh affidavit, [6].
Having read document 4, I am fortified in my initial view that this document was not created in the course of Ms Walsh’s engagement of Mr Elliott as her solicitor. It is apparent from the communication that it occurred after the time Mr Elliott advised the solicitors for WorleyParsons that he had ceased to act in the matter.
In my view, the content of document 4 is consistent with and reflects the fact that Mr Elliott has ceased to act. The tenor of the communication reflects the premise that Mr Elliott had ceased to act for Ms Walsh and accordingly this document was not created in the course of any lawyer/client relationship which may have previously existed between Mr Elliott and Ms Walsh. In my view, the ground of objection asserted in relation to document 4 is not made out.
Are the documents ‘confidential communications’ within the meaning of the Act?
Section 117 of the Act provides:
confidential communication means a communication made in such circumstances that, when it was made—
(a) the person who made it; or
(b) the person to whom it was made—
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law;
In respect of documents 1, 2 and 3, I have found that the communications were between a lawyer acting for the client and another person within the meaning of s 119 of the Act. It is now necessary to consider whether these communications were confidential, and were for the dominant purpose of the client being provided with professional legal services relating to existing or anticipated proceedings in which the client relevantly is or may be a party.
WorleyParsons submits, correctly in my view, that it may be accepted that in the ordinary course a solicitor owes at least an implied obligation of confidentiality to a client. Given my finding that Ms Walsh engaged Mr Elliott to act on her behalf at the time documents 1, 2 and 3 came into existence, and having examined the content of these documents and noting that they are solely between solicitor and client in the case of document 1 and document 2, and solely between solicitor and client and her husband in the case of document 3, I am satisfied that they are in the nature of confidential communications between lawyer and client and satisfy the requirement of s 117.
Were the communications for the relevant ‘dominant purpose’?
WorleyParsons submits that in the absence of evidence supporting the existence of a lawyer/client relationship between Ms Walsh and Mr Elliott at the time each of these documents were communicated it could not be concluded that they constituted documents prepared or communicated for the dominant purpose of being provided with professional legal services. This argument falls away given my findings that the existence of a lawyer/client relationship is to be inferred at the relevant times.
Further, in relation to document 3, WorleyParsons submits that the description of the document is not suggestive of a communication with the dominant purpose of the client being provided with professional legal services and that the contents of the document are not addressed by the plaintiff in her affidavits.
Having had the benefit of examining document 3, it is evident that the communication is for more than one purpose. Alluding generally to its content, but being necessarily oblique, it principally concerns the actual and potential progression of the MCI proceeding and potential alternative courses of action. I have concluded that the communication was for the dominant purpose of Ms Walsh being provided with professional legal services relating to the MCI proceeding or an anticipated proceeding which Ms Walsh is or may be a party. This satisfies the dominant purpose requirement of s 119 of the Act.
I have also examined the content of documents 1 and 2 to ascertain whether they satisfy the dominant purpose test. Again, being necessarily oblique, document 1, dated 25 July 2014, consists of an update and includes reference to steps taken and steps going forward in connection with the MCI proceeding. I am satisfied the communication was for the dominant purpose of Ms Walsh being provided with professional legal services, as contemplated by s 119.
Document 2, dated 29 July 2014, consists substantially of a further update of progress in the MCI proceeding and potential joinder of Ms Walsh as co-plaintiff. I am satisfied that this communication was for the dominant purpose of Ms Walsh being provided with professional legal services, as contemplated by s 119 of the Evidence Act.
It remains for me to consider the submission by WorleyParsons that:
(a)the plaintiff has lost client legal privilege in respect of all four documents by acting inconsistently with the maintenance of the claim for privilege by filing and serving the First Walsh affidavit; and
(b)document 3 is reasonably necessary to enable the proper understanding of documents, which the plaintiff has consented to producing or over which privilege has already been waived.
Acting inconsistently with the maintenance of the privilege.
Section 122(2) of the Evidence Act provides:
Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
WorleyParsons submits that by giving evidence as to the circumstances of her recruitment as co-plaintiff in the MCI proceeding, her agreement to be the representative plaintiff in the Walsh proceeding and the condition that she be indemnified and paid for her time,[24] and by relying on these matters in opposing the relief sought by the defendant in its 18 February summonses (by which WorleyParsons seeks an order that this proceeding be stayed as an abuse of process or that the proceeding no longer continue as a group proceeding), Ms Walsh has put these matters in issue in the litigation.
[24]First Walsh affidavit, [2] reproduced in [6] above.
In Commissioner of Taxation v Rio Tinto Limited, the Full Court of the Federal Court held:
[T]he question is not whether the Commissioner has put his state of mind in issue but whether he has directly or indirectly put the contents of the otherwise privileged communications in issue in the litigation, either in making a claim or by way of defence. Put another way, to adopt Allsop J’s language in DSE, has the Commissioner (being the privilege holder) made an assertion as part of his or her case in the litigation that lays open the privileged documents to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege?[25]
[25](2006) 151 FCR 341 (‘Rio’) at [65].
Relying on this passage in Rio, WorleyParsons submits that Ms Walsh has necessarily laid open the confidential communications to scrutiny.[26]
[26]Defendant’s outline of submissions dated 13 May 2015, [47].
In her reply submissions, Ms Walsh submits:
(a)that her affidavits have been directed to opposition to the subpoenas and to maintenance of her claim of privilege and by merely objecting to the inspection of ostensibly privileged documents and seeking to satisfy the Court that there was a lawyer/client relationship at relevant times cannot be regarded as having put the content of those privileged documents in issue;
(b)there is no inconsistency between her assertions and the maintenance of privilege: her description of her actions as plaintiff does not require that in fairness the court should treat the privilege in respect of advice and communications associated with the conduct of the litigation as having been waived; and
(c)she has not relied on matters concerning the circumstances in which she is sought to be joined as plaintiff, the circumstances in which she became a plaintiff in this proceeding or her indemnification in opposing the relief sought by the defendant in its 18 February summonses and that she has said nothing in response to those summonses and is unlikely to do so until the defendant files its submissions.[27]
[27]Plaintiff’s reply submissions dated 25 May 2015, [15]-[19].
In my view, there has been no issue waiver. I accept that Ms Walsh’s reliance on the affidavit is directed to her objection to inspection of documents produced pursuant to the Second February Elliott subpoena and maintenance of the claim of privilege. I note Ms Walsh expressly seeks to preserve privilege in respect of any privileged communications.[28]. In my view, reliance on the history of her involvement for the purposes of resisting inspection of documents produced on subpoena is not inconsistent with the maintenance of privilege. The matters which are ultimately put in issue in the substantive hearing of the application (that the proceeding be set aside as an abuse of process or that it not continue as a group proceeding) will not be known until WorleyParsons fully articulates its case and Ms Walsh fully responds to it.
[28]First Walsh Affidavit, [1].
Disclosure necessary to understand other disclosed documents
WorleyParsons submits that disclosure of document 3 is necessary to understand other disclosed documents.
Section 126 of the Evidence Act provides:
Loss of client legal privilege—related communications and documents
If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document.
WorleyParsons focuses on the description given to document 3 in the schedule:
Signed consent to addition as a plaintiff of 15.07.14 and form of consent to be named as a plaintiff and regarding payment and separate/case.
WorleyParsons submits that in response to the 19 February 2015 subpoena (Second February Elliott subpoena) Mr Elliott produced correspondence with Ms Walsh concerning her interest in becoming a ‘co-plaintiff’, her enquiries as to what was involved (including the personal ramifications of her involvement) and the hourly rate at which she would be paid; WorleyParsons notes that no objection was taken to inspection of these documents[29] and that documents produced in response to other subpoenas (the First February subpoenas) include communications concerning her appointment and role as ‘plaintiff’ and entitlement to remuneration.
[29]Defendant’s outline of submissions, [48(a)].
WorleyParsons submits that the description for document 3 adverts to Ms Walsh’s role as plaintiff (‘separate case’) and remuneration in that role (’regarding payment’) and that the only conclusion open is that document 3 represents the conclusion of negotiations already disclosed and ‘is reasonably necessary to enable the context and conclusions that ought to be drawn from the already produced documents’.[30]
[30]Defendant’s outline of submissions, [53].
In her reply submissions, Ms Walsh submits that her initial interest in the proceeding in responding to a newspaper advertisement was incapable of satisfying the requirements of s 119 of the Act and for this reason no claim of privilege was made with respect to those communications and that she only seeks to maintain privilege in respect of communications with her solicitor (or indemnifier) after the relevant relationships had come into existence.
Further, Ms Walsh submits that the nature of communications made more than two months after the entry into the indemnity on 2 July 2014 cannot reasonably be regarded as necessary to comprehend communications made prior to the commencement of the protected relationship.
I accept the plaintiff’s submissions. In my view, this is not an instance where there has been partial disclosure of privileged documents or communications in circumstances where associated privileged material should also be disclosed.
Accordingly, in this instance, I do not accept that s 126 of the Act applies.
Conclusion
I uphold Ms Walsh’s claim for litigation privilege with respect to documents 1, 2 and 3 but not with respect to document 4.
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CERTIFICATE
I certify that this and the 19 preceding pages are a true copy of the reasons for Ruling of Almond J of the Supreme Court of Victoria delivered on 26 June 2015.
DATED this twenty sixth day of June 2015.
Associate
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