Wickham Point Development Pty Ltd v Commonwealth of Australia (No 5)
[2020] NTSC 31
•2 June 2020
CITATION:Wickham Point Development Pty Ltd v Commonwealth of Australia & Ors (No 5) [2020] NTSC 31
PARTIES:Wickham Point Development Pty Ltd
v
Commonwealth of Australia
and
trepang services pty ltd
and
serco australia pty ltd
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:25 of 2017 (21715635)
DELIVERED: 2 June 2020
HEARING DATE: 10 and 11 March 2020
JUDGMENT OF: Luppino AsJ
CATCHWORDS:
Practice and Procedure – Discovery – Privilege – Disclosure of documents – Public interest immunity – Claim of immunity over Cabinet documents – What constitutes Cabinet documents – Relevance and importance to the issues in the proceedings – When it is appropriate to inspect the documents – Balancing exercise between competing interests – Relevant factors.
Practice and Procedure – Application for particular discovery – Principles to be applied – Pre-conditions for the making of an order – When documents are relevant to a “question” in the proceedings – Order remains discretionary after pre-requisites are satisfied.
Practice and Procedure – Discovery – Privilege – Disclosure of documents – Legal Professional Privilege – Nature of permissible evidence required to establish the privilege – Requirements to establish the privilege.
Practice and Procedure – Discovery – Privilege – Disclosure of documents – Without Prejudice Privilege – Nature of permissible evidence required to establish the privilege – Requirements to establish the privilege.
Evidence (National Uniform Legislation) Act 2011, ss 4, 9, 117-119, 121, 130, 131, 133, 142
Supreme Court Rules 1987, rr 1.09, 13.02(1)(a), 29.08(1).
Practice Direction No 6 of 2015.
Practice Direction 6 of 2009, paras 1, 6,10, 11, 12.Whitlam v Australian Consolidated Press (1985) 73 FLR 414.
Sankey v Whitlam (1978) 142 CLR 1.
Spencer v Commonwealth of Australia (No 3) [2012] FCA 637.
Eastman v The Queen (1997) 76 FCR 9.
Matthews v SPI Electricity Pty Ltd& Ors (No 11) [2014] VSC 65.
Tatts Group Ltd v Victoria [2013] VSC 301.
Commonwealth v Northern Land Council (1993) 176 CLR 604.
Kamasaee v Commonwealth of Australia and Ors (No 3) [2016] VSC 438.
Spencer v Commonwealth (2012) 206 FCR 309.
Young v Quin (1985) 59 ALR 225.
Murray Pest Management Pty Ltd v A & J Bilske Pty Ltd & Ors [2009] NTSC 68.
Minkie (NT) Pty Ltd v Wise Channel Marketing Pty Ltd & Anor [2011] NTSC 53.
Cook v Modern Mustering Pty Ltd & Ors; Savage & Ors v Modern Mustering Pty Ltd & Ors [2013] NTSC 78.
Joondanna Investments Pty Ltd v The Minister for Lands, Planning and the Environment & Anor [2014] NTSC 58.
Complete Crane Hire (NT) Pty Ltd v Marchetti Autogru (Italy) [2015] NTSC 32.
Morgan v Commissioner of Police [2019] NTSC 62.
Martell v Victorian Coal Miner’s Assn (1903) 28 VLR 643.
Pendlebury v O'Neill (1911) 11 SR (NSW) 188.
Kent Coal Concessions Ltd v Duguid [1910] AC 452.
Beecham Group Ltd v Bristol-Meyers Co Ltd [1979] VR 273.
Smith v Goldring (1887) 4 WN (NSW) 13.
British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] AC 709.
Mulley & Marnie v Manifold (1959) 103 CLR 341.
ACE Hire Aust Pty Ltd v ADI Ltd [2006] NSWSC 969.
Telstra Corp Ltd v Australis Media Holdings (1997) 41 NSWLR 147. Meteyard v Love (2001) 65 NSWLR 36.
New South Wales v Jackson [2007] NSWCA 279.
Grant v Downs (1976) 135 CLR 674.
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49.
Davies v Nyland (1975) 10 SASR 76.
Biovision 2020 Pty Ltd v CGU Insurance Ltd [2010] VSC 589.REPRESENTATION:
Counsel:
Plaintiff:A Harris QC, N Christrup SC and H Stanley
Defendant:B Ilkovski and T Glover
First Third Party: Not represented
Second Third Party: D McConnell
Solicitors:
Plaintiff:HWL Ebsworth
Defendant:Clayton Utz
First Third Party: HWL Ebsworth
Second Third Party: Ward Keller
Judgment category classification: B
Judgment ID Number: Lup2001
Number of pages: 79
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINWickham Point Development Pty Ltd v
Commonwealth of Australia & Ors (No 5)
[2020] NTSC 31No. 25 of 2017 (21715635)
BETWEEN:
Wickham Point Development Pty Ltd
Plaintiff
AND:
Commonwealth of Australia
Defendant
AND:
Trepang Services Pty Ltd
First Third PartyAND
Serco Australia Pty Ltd
Second Third Party
CORAM: Luppino AsJ
REASONS
(Delivered 2 June 2020)
These reasons deal with applications for orders made in two Summonses. The first was the Plaintiff's Amended Summons filed 21 January 2020 which seeks orders for particular discovery and also challenges various claims to privilege made by the Defendant. That Summons also seeks an order for the costs reserved on an earlier Summons. That costs question was not reached and is to be adjourned sine die with liberty to apply.
The second Summons is the Defendant’s Amended Summons filed on 14 February 2020. That Summons also seeks orders in relation to privilege but in respect of some of the documents discovered by the Second Third Party (Serco).
The hearing on both Summonses was divided by the parties into four discrete parts. They are firstly, the Defendant’s claim to Public Interest Immunity (PII) privilege. Secondly, the orders sought by the Plaintiff for particular discovery against the Defendant. Thirdly, the Defendant’s claim to Legal Professional Privilege (LPP). The Defendant’s claim of privilege in respect of documents discovered by Serco is also based on LPP. Lastly, the Defendant’s claim to Without Prejudice Privilege (WPP). I will deal with them according to that division.
Public Interest Immunity (PII)
The documents to which the PII claim relates are documents commonly referred to as “Cabinet documents”. PII in respect of Cabinet documents is intended to provide a level of protection to the government process and in particular the process of Cabinet. One of the objects of PII in the context of Cabinet documents is to maintain Cabinet confidentiality and to avoid damage to the proper working of government at the highest level.[1] The principles in respect of PII are based on an acknowledgement that the proper working of government relies on Ministers and other senior officers of the government being able to engage in policy development and decision making on the basis that their deliberations are confidential and that collective responsibility for Cabinet decisions is maintained.[2]
Notwithstanding that there is no dispute between the parties as to the principles which apply to PII claims, it is useful to summarise the principles for the purposes of these reasons. The starting point is section 130 of the Evidence (National Uniform Legislation) Act 2011 (ENULA) and that provides as follows:
130 Exclusion of evidence of matters of state
(1)If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
(2)The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).
(3)In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.
(4)Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:
(a)prejudice the security, defence or international relations of Australia; or
(b)damage relations between the Commonwealth and a State or between 2 or more States; or
(c)prejudice the prevention, investigation or prosecution of an offence; or
(d)prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or
(e)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or
(f)prejudice the proper functioning of the government of the Commonwealth or a State.
(5)Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters:
(a)the importance of the information or the document in the proceeding;
(b)if the proceeding is a criminal proceeding – whether the party seeking to adduce evidence of the information or document is a Defendant or the prosecutor;
(c)the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d)the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e)whether the substance of the information or document has already been published;
(f)if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a Defendant – whether the direction is to be made subject to the condition that the prosecution be stayed.
(6)A reference in this section to a State includes a reference to a Territory.
As is recognised by section 130(5), the statutory factors are not exhaustive. Common law principles also apply.[3] The continuing application of the common law is also confirmed by section 9 of ENULA which is to the effect that common law principles still apply to the extent that they are not inconsistent with the provisions of ENULA. Moreover, the common law established the approach to be taken by Courts to determine claims for PII and that required a three-step process to be undertaken. The first step is to determine whether there is a risk that production of the documents would harm the public interest. That is made simpler in cases where, as in the current case, the relevant documents are of a class which carry a prima facie entitlement to PII.[4] The second step is to determine whether there is a public interest in the Plaintiff having access to the documents. For this purpose, where, as in the current case, the documents are required for the purposes of litigation, the interests of justice in ensuring that parties to litigation have access to all necessary documents is the usual factor relied on in this determination. The last step involves a balancing exercise[5] to determine whether the second mentioned public interest outweighs the public interest against disclosure. This balancing exercise is specifically provided for in section 130(1) of ENULA.
With that general background, I now set out a summary of the principles applicable to determining claims for PII distilled from a selection of the cases I was referred to, specifically Whitlam v Australian Consolidated Press,[6] Sankey v Whitlam[7] (Sankey), Commonwealth v Northern Land Council[8] (NLC), Spencer v Commonwealth of Australia (No 3)[9] (Spencer No 3), Kamasaee v Commonwealth of Australia and Ors (No 3)[10] (Kamasaee), Matthews v SPI Electricity Pty Ltd & Ors (No 11)[11] (Matthews) and Spencer v Commonwealth[12] (Spencer). Those principles are:
(a)PII claims are based either on the class of the document or the contents the document.[13] The former recognises that the disclosure of certain types of documents would injure the public interest irrespective of the content of those documents. The latter applies where it is only the disclosure of the content of the document that would injure the public interest;[14]
(b)“Cabinet documents” are documents which carry a prima facie entitlement to PII and are within the class of documents which ought not to be disclosed irrespective of their content;[15]
(c)The term "Cabinet documents" is a broad term and includes not only documents which disclose Cabinet deliberations but also includes records of Cabinet meetings, papers prepared for consideration by Cabinet and other related documents;[16]
(d)Documents actually submitted to Cabinet, including drafts and other versions whose content is incorporated into documents submitted to Cabinet, are clearly within the prima facie class;[17]
(e)The premise for conferring the immunity in respect of Cabinet documents is that a breach of confidentiality of the Cabinet process would significantly interfere with the efficient operation of Cabinet;[18]
(f)A document is not absolutely protected from disclosure merely because it is within the prima facie class;[19]
(g)In assessing the risk that production of a document would be injurious to the public interest for the purposes of the balancing exercise, relevant considerations are the reasons given as to why the revelation of the documents would impact the proper functioning of government, whether the document is only historical and lastly, the subject matter of the document;[20]
(h)Exceptional circumstances must exist which demonstrate that there is a public interest which favours disclosure of the documents for the proper administration of justice;[21]
(i)For the purposes of determining the extent of the public interest in favour of disclosure, the documents in question must not just be relevant but must contain material evidence.[22] The importance of the evidence may amount to the required exceptional circumstances;[23]
(j)The test for assessing the risk of harm to the public interest by disclosure is whether the harm could arise as a matter of real possibility as opposed to the probability that harm will arise;[24]
(k)The onus is on the claimant of PII privilege to provide evidence from a responsible representative of the government deposing that there is a public interest that would be jeopardised by production;[25]
(l)In class claims in particular, the claim is by its nature general and therefore the evidence to meet the onus will be general in nature[26] and due weight is to be given to the affidavit evidence in support of the claim as well as the seniority of the deponent;[27]
(m)Documents relating to a topic which is current and controversial will attract a higher level of confidentiality whereas documents which have passed into history attract a lesser level of confidentiality, as do documents which may have already been published;[28]
(n)The Court may privately inspect the documents to determine the validity of a claim for privilege;[29]
(o)The power to inspect the documents should only be used if it is truly necessary to determine the claim for immunity,[30] should be used sparingly[31] and should not be used as a matter of course.[32]
The evidence relied on for the purposes of the PII claim is firstly, for the Plaintiff, the affidavits of the Plaintiff’s solicitor Mr Ryan Sanders made 24 September 2019 (Sanders No 1), 7 October 2019 (Sanders No 2) and 7 November 2019 (Sanders No 3). The evidence of the Defendant consists of the affidavit of Stephanie Claire Foster made 18 October 2019 and two affidavits of Leonie Margaret McGregor, the first made 18 October 2019 and the second made 4 February 2020. Foster is the Deputy Secretary of the Department of the Prime Minister and Cabinet. McGregor is the First Assistant Secretary Cabinet Division of the Department of the Prime Minister and Cabinet. The authorities establish that the claimant of PII is required to provide evidence from a responsible representative of the government.[33] The Plaintiff does not dispute that Foster and McGregor are sufficiently senior or suitably qualified for current purposes.
Foster’s evidence is in general terms and broadly is to the effect that harm would be caused to the Cabinet system, and consequently to Australia's national interests, by the disclosure of information in the documents sought by the Plaintiff. She expresses the view that the disclosure would undermine the Cabinet process and adds that if the confidentiality of Cabinet deliberations were undermined by the disclosure, the process of decision making and policy development in Australia would be significantly impaired.
McGregor groups the documents the subject of the claim to PII, into four discrete categories, all of which are recognised categories of Cabinet documents. Although documents in each of the four categories prima facie attract the privilege, they are not necessarily treated equally.[34] Although not necessarily accepting the categorisations made by McGregor, the Plaintiff does not dispute that all of the subject documents are documents within the class of documents which prima facie attracts PII.
McGregor’s evidence is also in general terms and is broadly that the release of the documents will have the effect of breaching the confidentiality of the Cabinet process and would significantly interfere with the effective operation of the Cabinet and decision making and policy development. She adds that significant damage to the public interest would result from the disclosure of the documents, particularly as the documents relate to the policy of immigration and border control. She adds that aspects of that policy continue to be considered by the government and also alludes to the “chilling" effect that disclosure of the documents would have on material prepared for future consideration by Cabinet or Cabinet Committees.
Subject to what follows, I am satisfied that the foregoing evidence of the Defendant suffices to establish that there is a risk that production of the relevant documents could be injurious to the public interest. Accordingly that satisfies the first step of the process required to resolve the current issue. However, this was not the focus of the Plaintiff’s challenge which rested on the importance of the documents to the Plaintiff’s case and the currency issue, and that largely relates to the second and third steps of the process.
Some brief background facts will assist in putting the Plaintiff’s argument on the application into context. The proceedings relate to a purpose-built facility constructed by the Plaintiff specifically to be leased to the Defendant for use as an immigration detention facility. In the latest iteration of the Statement of Claim the Plaintiff alleges inter alia that three representations were made to the Plaintiff which the Plaintiff relied on when agreeing to build the facility.[35] The first representation was that the Defendant would occupy the facility for at least 10 years. The second representation was that the Defendant would extend the occupancy of the facility as required such that the Defendant would occupy the facility for at least that same 10 year period. The third representation was that the Defendant would occupy the facility for as long as was necessary to enable the Plaintiff to achieve a commercial return on its investment.
On its face, there appears to be overlap between the first two representations. The second representation however is pleaded in conjunction with another allegation in the current Statement of Claim which is required as, for reasons specific to the Defendant’s requirements, the formal documentation only provided for occupancy of less than 10 years initially. Hence the second representation in effect pleads a promise to renew or extend that occupancy as required to achieve that 10 year minimum occupancy.
I agree with the Plaintiff that if documents exist which directly establish those representations, or support an inference that those representations were made, then they are important to the Plaintiff’s case. That brings the second and third steps of the process into play. The Plaintiff’s focus on the currency of the relevant information[36] was to demonstrate that less weight should be given to the evidence that a breach of Cabinet confidentiality is adverse to the public interest in the current case. Mr Harris, senior counsel for the Plaintiff, drew a distinction between the topic and the issue. He argued that the topic can be broadly described as border protection and he conceded that was current and controversial. However, the issue is the expected numbers of irregular maritime arrivals at an earlier time, and that is now a historical matter which is not current or controversial. In that way he argued that the possible damage by disclosure is minimised.
The documents which the Plaintiff seeks are documents expected to reveal the Defendant’s expectations in respect of irregular maritime arrivals at the relevant time. The relevance of this to the Plaintiff’s case is that if there is evidence of high expectations of irregular maritime arrivals preceding the making of the alleged representations, that can support an inference that the alleged representations were made.
The evidence demonstrates that among the documents the subject of the Defendant’s PII claim are documents known as Estate Management Plans, including precursors to those documents and related documents prepared for the preparation of an Estate Management Plan. I am satisfied that such documents, as well as other documents, might reveal what the Defendant considered to be the need for immigration detention facilities based on irregular maritime arrivals at the relevant time. Therefore, they could support an inference favouring the Plaintiff’s substantive case.
Mr Harris criticised the "high level of abstraction" in the Defendant’s evidence. In particular, the failure to provide any specifics as to why disclosure of the documents would impact on the functioning of government and the lack of greater specificity as to why the information within the documents remains current and controversial. I agree that the Defendant’s evidence is in general terms only and lacking specificity. That is the expected and permissible generality of the evidence in PII claims, at least where the claim is based on the class of the document.[37]
The Defendant does not accept that the documents are no longer current and relies on the evidence of McGregor and Foster in relation to currency. That evidence is to the effect that the documents contain information that relates to policy proposals and deliberations on government policy concerning immigration detention, and the view expressed that this policy remains the subject of continuing policy consideration.
Neither does the Defendant accept that the Plaintiff has established that the documents are important to the Plaintiff's case. Mr Glover for the Defendant complained that the Plaintiff’s argument is a fishing exercise. Although I am satisfied that the possible relevance of the document to the Plaintiff’s case has been made out, as the Plaintiff can only guess at the contents of the documents for obvious reasons, I think it is appropriate to give some latitude to the Plaintiff.
The Plaintiff nonetheless argues that the lack of specifics in the Defendant’s evidence at least warrants inspection of the documents by the Court to determine whether they are current or controversial. I think that the Plaintiff raises strong points regarding the currency of the information in the documents. I am satisfied that if the currency of the privileged information was not substantiated then that might swing the balance in the Plaintiff’s favour. I consider that documents which might reveal the Defendant’s expectations as to the likely numbers of irregular maritime arrivals are very material to the Plaintiff’s case. That factor is, I think, sufficient to establish the required exceptional circumstances. Given the strong argument of the Plaintiff in respect of currency, and as the Defendant has simply provided evidence of a general opinion, without specifics, that the policy of border protection and its development remains a current issue, I think inspection is warranted to ascertain if that opinion can be substantiated. It seems to be appropriate to at least inspect the documents for the fair administration of justice so as to at least conduct a fair balancing exercise. As the Defendant’s evidence on the current application has been necessarily general, the Defendant is invited to provide a supplementary affidavit, and further submissions, both on a confidential basis, setting out the claim to PII with specific details.
Particular discovery
Particular discovery is provided for in Rule 29.08(1) of the Supreme Court Rules (the Rules). That Rule provides as follows:
29.08Order for particular discovery
(1A) This rule applies to all proceedings in the Court.
(1)Where at any stage of a proceeding, it appears to the Court from evidence or from the nature or circumstances of the case, or from a document filed in the proceeding, that there are grounds for a belief that a document or class of documents relating to a question in the proceeding may be or may have been in the possession of a party, the Court may order that party to make and serve on any other party an affidavit stating whether the document or any and if so what document or documents of that class is or has been in his possession and, if it has been but is no longer in his possession, when he parted with it and his belief as to what has become of it.
I have set out the principles relative to orders for particular discovery in a number of recent cases.[38] In summary, such an order may be made where it is established on the pleadings, or by evidence, that there are grounds for believing that documents relating to a question in the proceedings may have been in the possession of a party. On its wording, it is a discretionary order and hence the usual principles relative to the exercise of a discretion also apply.
As I said in the cited cases, the use of the word “relating” in Rule 29.08(1) requires a relevance connection between the issues in the proceedings and the documents sought. The term "question" as it appears in Rule 29.08(1) is defined in Rule 1.09 which provides as follows: -
question means a question, issue or matter for determination by the Court, whether of fact or law or of fact and law, raised by the pleadings or otherwise at any stage of a proceeding by the Court, by a party or by a person, not a party, who has a sufficient interest.
In Minkie (NT) Pty Ltd v Wise Channel Marketing Pty Ltd & Anor,[39] I concluded that the phrase “by the pleadings or otherwise” in that definition, when applied to the phrase “documents relating to a question in the proceeding…” in Rule 29.08(1), meant that the term “document” for the purposes of Rule 29.08(1) was not confined to questions raised by the pleadings. An order pursuant to Rule 29.08(1) was still available provided a party had a “sufficient interest” in the question to be decided and to which the documents relate.
In light of this, the Defendant’s insistence on looking only to a pleading connection for the determination of the question in Rule 29.08(1) is incorrect to that extent at least but little may turn on that on the current application. The Defendant also argued in favour of other evidentiary requirements as a pre-requisite for an order for particular discovery. The Defendant referred me to a number of cases[40] which the Defendant submitted were authorities for the proposition that an order for further discovery requires more than just a speculative possibility that a party has not disclosed the relevant document. Although the foregoing correctly summarises the principles derived from those cases, those authorities all dealt with further discovery or the procedure for an affidavit of discovery under different Rules of Court. The authorities referred to are not specifically on point with Rule 29.08(1), which has its own specific requirements as discussed above, but I accept that little may turn on that. Although it will depend on the particular facts of each case, I accept that the belief required to be established for the purposes of Rule 29.08(1) may require more than just a speculative possibility of the existence of further documents to secure an order for further discovery. I otherwise consider the authorities cited by the Defendant to be of limited application in the current case. Whether something is speculative or amounts to a proper basis of belief is a question of degree.
The evidence relied on by the parties in respect of particular discovery consists of firstly, for the Plaintiff, Sanders No 2, Sanders No 3, and the further affidavits of Mr Ryan Sanders made 21 January 2020 (Sanders No 4) and 21 February 2020 (Sanders No 5). In the case of the Defendant, the affidavits of the Defendant’s solicitor Mr Mark Spain, the first made 25 October 2019 (Spain No 1) and the second made on 4 February 2020 (Spain No 2), and two affidavits each of Mr Ryan Gould and Ms Tanya Milzcarek, the first in each case made on 10 May 2018 and the other made on 18 May 2018.
The documents in respect of which particular discovery is sought are the documents generally described in paragraphs 1-17 of the Schedule to the Plaintiff’s Amended Summons, a copy of which is attached for ease of reference. Paragraph 1 of that Schedule is prefaced with a general description of the documents sought namely, documents in respect of the Defendant’s decision to open the facility and the length of time the Defendant was to use the facility. Following that preface, 11 specific groups of documents are sought and more specific descriptors are set out for each group.
For varying reasons, the claim for particular discovery in respect of the documents referred to in paragraphs 1(a), 1(b), 1(i), 1(k), 3, 5, 6, 7, 8, 9, 10, 15, 16 and 17 were no longer pressed by the time of the hearing. Further, the documents referred to in paragraph 14 of the Schedule were the subject of some late further discovery by the Defendant. The Plaintiff having insufficient time to assess whether that further discovery was satisfactory before the conclusion of the hearing, I indicated that I would adjourn further consideration of that aspect of the Summons sine die with liberty to apply.
I deal first with some general matters in relation to the particular discovery application. Firstly, the Plaintiff generally relies on the representations set out in the Second Amended Statement of Claim as setting the basis for determining the question required for particular discovery. The Plaintiff’s case is that how long the Defendant contemplated, at the outset, that it might occupy the facility was relevant to the question of whether the alleged representations were made and therefore this relates to an issue on the pleadings.
The Defendant argued that was not an issue raised on the pleadings as it was not specifically pleaded in those precise terms. The Defendant’s view reads the pleadings too narrowly for this purpose. The material fact of the representation in the pleading sets the parameters for what is the question for the purposes of Rule 29.08(1). Pleadings only state material facts, not the evidence by which the material facts are to be proved.[41] The pleadings are only required to set out the material facts which support the question. In the current case, broadly, the pleaded claim is on the basis of the Defendant reneging on various representations it is alleged to have made and which the Plaintiff relied on when agreeing to construct the facility. In my view that clearly satisfies the pleading nexus.
Further, relevance is also satisfied if the document is evidence which is capable of supporting an inference on the question. The inferences Mr Harris refers to are appropriate for this purpose and I agree that documents which demonstrate the Defendant’s expectations and needs in respect of immigration detention facilities preceding the representations are relevant in this respect. Although the evidence of what such documents might reveal may not be sufficient to support the inference the Plaintiff argues for, that does not render those documents irrelevant.
Secondly, there is some controversy as to the appropriate date range for discovery. The date of 3 March 2011 appearing in the preface to paragraph 1 of the Schedule is the date when the Defendant announced the opening of the facility. Given the substantial nature of the facility[42] clearly there would have been discussions and negotiations in relation to the construction and occupancy of the facility between the Plaintiff and the Defendant commencing well before that date. It follows therefore that the Defendant’s requirements for facilities to house irregular maritime arrivals would have been known by then.
The evidence led by the Plaintiff included the numbers of irregular maritime arrivals in relevant calendar years. Increases in those numbers commenced in the 2008 calendar year and that is why the Plaintiff submitted that 2008 was an appropriate starting date.
The Defendant argues that it is not acceptable to set a starting point at 2008 based on perceived numbers of irregular maritime arrivals at that time because it is unrelated to any question on the pleadings. I do not agree for the reasons previously stated. However, I do accept that a date as far back as 2008 would not be an appropriate starting date for this purpose. The increase in that year was moderate and merely because that may have been the year which first saw a small increase in the number of irregular maritime arrivals, would not necessarily result in the contemplation of possible requirements by the Defendant at that time.
The first year of a very significant increase in the number of those arrivals occurred in 2009, albeit that the largest increase occurred in 2012, but that is after the alleged representations. Therefore, I consider that 2009 is the appropriate year for this purpose. Further, as those numbers are total numbers for the year, the actual arrivals were dispersed over the course of the year. In terms of the question of the Defendant assessing its needs based on its expectations, I think that could only properly arise towards the end of a relevant year, in this case the end of the 2009 calendar year. Therefore, I fix 1 January 2010 as the start of the date range. This has regard to the number of irregular maritime arrivals as well as the earliest date that the representations are alleged to have been made.[43]
Thirdly, this is not a routine case and particularly with respect to discovery. It requires much more than a straightforward discovery process. In discovery in routine cases there is greater scope for orders for particular discovery, as the manual searches then effected could result in some discoverable documents being overlooked. The current case is very document intensive. That is why discovery has taken as long as it has to date and has necessitated the use of a Document Management Protocol and technology assistance. The Defendant’s records, understandably, are mostly, if not exclusively, electronically stored. In turn that necessitates computer searches to identify discoverable documents followed by individual consideration of the documents revealed by those computer searches to determine relevance and discoverability. For that reason, the integrity and sufficiency of searches affected to identify discoverable documents must be taken into account when considering the sufficiency of discovery and the requisite belief.
I am of the view that unless some deficiency in the searches is demonstrated, then requiring those searches to be repeated would be futile as the result should be the same. Although this will vary on a case by case basis, in general terms, where the searches affected are adequate, I think only clear direct evidence, or very strong inferential evidence, could establish the required belief for the purposes of Rule 29.08(1). Noting also that there is a discretionary aspect in an order for particular discovery, the adequacy of the searches or otherwise is a factor to take into account when exercising the discretion.
The Plaintiff’s evidence as to the required belief is inferential, mostly relying only on the likelihood of the existence of other documents based on the circumstances of this case. In determining to take into account the sufficiency of the searches to assess if the required belief has been established, that does not mean that I view the searches as paramount or that evidence of searches will always be preferred. Due weight however must be given to the extent and sufficiency of the searches and that must be measured against whether other searches might reveal other documents. On the other hand, direct evidence or strong inferential evidence might itself indicate insufficiency of those searches.
The evidence of the Defendant in respect of its searches is extensive and is that appropriate searches were undertaken and all documents revealed by those searches have been discovered. The evidence in Spain No 1[44] is representative of the Defendant’s searches. That evidence identifies the information technology systems and policies adopted by the Defendant for storage of documents within the relevant Department, the searches conducted of those systems to identify discoverable documents, the extensive specific search terms developed for searching those records, the hundreds of permutations of the search terms developed and utilised and the additional specific targeted searches effected. Searches were also conducted of the Department of the Prime Minister and Cabinet. The agreed Document Management Protocol was utilised to assist with the review of the documents identified by those searches. There were three levels of review. Initially the review of documents was conducted by junior lawyers or paralegals. That review was checked by more senior lawyers and finally that second review was checked by counsel and experienced, more senior lawyers.
I now deal with the individual claims to privilege which remain in dispute firstly, subparagraph 1(c). This seeks records of communications between Mr Neil Mather and any of his superiors in relation to the Defendant's decision to open the facility. The Defendant argued that this was not a matter raised on the pleadings, but I do not agree for the reasons I previously expressed. The pleadings show that Mr Mather held the position of Director of IMA Infrastructure in the Department of Immigration and Border Protection and that Mr Ingram was the Assistant Secretary of Detention Infrastructure Branch within the same Department.[45] The Defendant’s evidence establishes that Mr Ingram was Mr Mather’s direct supervisor.[46]
The Plaintiff asks me to infer that, for a project of the magnitude of the Plaintiff’s facility, it is improbable that there are so few documents in respect of Mr Mather's dealings with superiors.
Other than as is set out below, there is no direct evidence indicating the existence of any other communications between Mr Mather and any superior officer which, in any case would likely be limited to Mr Ingram. The Defendant has discovered some communications between Mr Mather and Mr Ingram, mainly where Mr Ingram has been copied into other communications to or from Mr Mather. The earliest such communication is 22 February 2011, which is a short time before the announcement of the opening of the facility. By that time there would have been much by way of previous discussions and negotiations between the parties.
The Plaintiff’s evidence[47] generally in respect of paragraph 1 of the Schedule, is that the Defendant has discovered only 35 documents, comprising emails and written communications, up to 3 March 2011 which is the date when the Defendant announced the opening of the facility. By way of contrast, the Plaintiff has discovered a number of other documents.[48] Unless the additional documents discovered by the Plaintiff are not in fact discoverable, for example, because they are not relevant to a question in the proceedings or otherwise (and that was not argued by the Defendant), the Defendant's discovery appears to be deficient.
I think that there must have been substantially more documents passing between Mr Mather and his superiors. This was a major government project and Mr Mather had a direct supervisor, from which I conclude that Mr Mather did not have authority to make decisions without reporting to superiors. I am therefore satisfied that there is the appropriate belief as to the existence of other documents in the category as required by Rule 29.08(1) of the Rules. Having regard to my comments in paragraphs 37-39 above, in this instance I consider the foregoing to outweigh the Defendant’s evidence of the searches conducted. Put simply, as the Defendant searches have only revealed a relatively minimal number of documents, and there is evidence that some documents have been missed in any case (see paragraph 44 above), the evidence based on the inference the Plaintiff asked me to draw is stronger than the evidence of the Defendant’s searches. In short, I am of the view that the Defendant searches in this instance are deficient. I am therefore of the view that an order for particular discovery is appropriate in respect of documents described in paragraph 1(c). Having regard to my comments in paragraph 36 above, that should relate to the period from 1 January 2010 to 3 March 2011.
The documents referred to in subparagraph 1(d) of the Schedule relate to documents disclosing the extent that the Secretary, or equivalent, knew or approved of, or had received approval for, the proposal for the Defendant to occupy the facility. Paragraph 50 of Spain No 1 is to the effect that firstly, documents within that description have been discovered by the Defendant but are subject to a claim of PII and secondly, other documents have been discovered by the Defendant other than those acknowledged by the Plaintiff.
The Plaintiff complains that the Defendant has not provided any explanation as to why no other documents have been discovered. This not only asks the Defendant to prove a negative but it also disregards that the onus is on the Plaintiff. Having regard to the evidence of the extensive searches conducted by the Defendant, I am not prepared to draw the inferences suggested by the Plaintiff in this instance. Therefore, other than in respect of the documents discovered which are subject to the PII claim, there is no evidence to satisfy the requirements of Rule 29.08(1) in respect of the remainder of the documents sought. The order for particular discovery in respect of paragraph 1(d) is therefore refused.
Subparagraph 1(e) seeks documents which disclose the extent to which Cabinet knew, or approved, of the proposal for the Defendant to occupy the Plaintiff’s facility. This is similar to subparagraph 1(d) save that this relates to Cabinet, not the Secretary. The Defendant's evidence[49] is that those documents have been discovered and are the subject of PII. It is not surprising that these documents are subject to a claim to PII and the nature and significance of those documents satisfies me that the evidence of the Defendant’s searches outweighs the inferential evidence the Plaintiff relies on. I am not satisfied that the Plaintiff has established the requisite belief and an order for particular discovery in respect of these documents is therefore refused. Production of documents covered by paragraph 1(e) will therefore be determined with the determination of the PII claim.
The documents described in subparagraph 1(f) of the Schedule relate to documents associated with a media release, specifically drafts and internal correspondence. The media release itself has been discovered and the Plaintiff seeks drafts or other documents which preceded the preparation of the media release. This is again based on an inference that the existence of those documents is likely. Bearing in mind my comments in paragraphs 37-39 above, I do not agree with the Plaintiff in this instance. In my view the existence of the documents is only a possibility, but not likely, and I do not consider that to be sufficient. The Plaintiff must provide sufficient evidence which supports the required threshold for the current application. The relatively small number of documents which fall within this category are unlikely to have been missed by properly conducted searches. Therefore, without evidence demonstrating the inadequacy of the searches, I prefer the Defendant’s evidence and the order for particular discovery in respect of these documents is therefore refused.
The documents referred to in subparagraphs 1(g) and 1(h) of the Schedule can be conveniently dealt with together. Those subparagraphs refer to an email of Mr Ingram[50] which has a passing reference to “restricted documents”. The evidence of the Defendant is that those documents were specifically reviewed and were all determined to be the subject of its claim for PII. The Plaintiff’s submissions amount to no more than a complaint as to the adequacy of the Defendant’s evidence, of which I am satisfied in any case. There is no evidence to satisfy the requirements for an order for particular discovery of those documents in my view and the order is therefore refused.
The documents in subparagraph 1(j) of the Schedule are, on the Defendant's evidence, documents which have been discovered but are the subject to PII. For reasons similar to those I gave in respect of the documents in paragraph 1(e) of the Schedule, I therefore refuse the order. Production of those documents to the Plaintiff will therefore stand to be determined with the determination of the PII claim.
Paragraph 2 of the Schedule refers to a single class of documents, namely correspondence predating the formal lease documentation between the Defendant and three of the Defendant’s suppliers in respect of the facility. Specifically, correspondence going to the requirement for services to be provided at the facility by those suppliers is sought. The Plaintiff claims that those documents are likely to contain information about the period of time for which those contractual relationships were contemplated. Again, although I accept that that is a possibility, I do not accept that it is likely. Therefore, I find that there is no evidence to support an order for particular discovery in respect of those documents and I decline that order.
That then leads to the documents in paragraph 4 of the Schedule. In general terms, that seeks documents in the nature of correspondence or communications between the Defendant and the Northern Territory Government in respect of the provision of health services at the facility. The description of the documents sought is, in respect of subparagraph 4(a), documents relating to an extension or replacement of an arrangement whereby the Northern Territory was to provide health services at the facility up to 31 December 2011. The Plaintiff argues that the documents sought would likely include content in respect of the period of time over which those services might be required. I do not see how that can possibly follow as the arrangement had a finite duration and there is no evidence to show any contemplation of an extension to the arrangement beyond 31 December 2011. Therefore, I do not think there is sufficient basis to justify the orders sought. That rules out an order for particular discovery in respect of the documents in subparagraph 4(a).
Subparagraph 4(b) seeks documents which are expected to show why the Defendant did not require a medical centre at the facility in February 2011 but did so by May 2011. In isolation the nature of the documents sought by subparagraph 4(b) sounds odd. Some background will help to clarify that. The Northern Territory had an arrangement with the Defendant to provide health services at the facility until 31 December 2011. The initial requirements of the Defendant at the facility did not include a medical centre. That apparently changed in May 2011 and then a medical centre was required and the Plaintiff also agreed to construct it. The Plaintiff submits that the fact that a medical centre was not required in February 2011 but was in May 2011 strongly suggests that there were communications between the Defendant and the Northern Territory Government in respect of the use of the Northern Territory's health facilities by the Defendant for the detainees at the facility. Further, that those discussions were linked to the expected length of time for which the facility would be operative. I disagree as it does not necessarily follow from the fact that there was an arrangement with the Northern Territory which was due to expire on 31 December 2011. I think the evidence could only support an inference that, sometime between February 2011 and May 2011, the Northern Territory decided to not provide health services at the facility beyond 31 December 2011 and therefore the Defendant required an alternative. The Defendant then opted for the construction of a medical centre at the facility. I would be prepared to infer as much but there is no basis to draw an inference from that evidence that there was likely to be a discussion with the Northern Territory concerning how long it was contemplated that the facility would be operative. As the Northern Territory was not to provide health services, it would have no interest in the question as to how long, after 31 December 2011 at least, the facility would be operative. The order sought in subparagraph 4(b) of the Schedule is therefore also refused.
Paragraph 11 of the Schedule seeks discovery of documents relating to a certain meeting held in Canberra on 15 July 2016. The Plaintiff submits that, based on the evidence in Sanders No 2[51] that it is likely that the meeting dealt with the question of whether and when to close the facility.
Of that evidence in the Sanders No 2, annexure RPS5.42 refers to a schedule in an email dated 8 July 2016 which has not been discovered. As that schedule is referred to in a discovered document that should be discovered and produced, unless it is subject to privilege or for another valid reason. Annexure RPS5.43 is an email dated 12 July 2016 which refers to an “attached statement”. That is not precisely a “draft media release” as it is described in paragraph 50 of Sanders No 2. However, as it is also referred to in a discovered document likewise that should be discovered and produced, again subject to any privilege or other valid reason to the contrary.
Annexure RPS5.44 is an email chain dated 15 July 2016. The subject line includes “Minister’s roundtable - progress on closure of Wickham Point”. The body of the email refers to an “attached brief”. The Plaintiff’s evidence is that the brief referred to has not been discovered and again, the reference to the brief in the discovered email chain means that it should be discovered and produced, again subject to privilege or other valid reason to the contrary.
Spain No 1 deposes that various minutes have been discovered but that they are the subject of the claim of PII and otherwise that the searches conducted did not disclose any further documents relating to the meeting in Canberra on 15 July 2016.[52] That is very precise and specific direct evidence and therefore is indicative of the likely sufficiency of the Defendant’s searches. The Plaintiff’s submissions on this point are rather scant and other than submitting that the evidence referred to makes it likely that the meeting dealt with the question of whether and when to close the facility, largely complains of the lack of an explanation in the Defendant’s evidence as to why the Defendant has no further documents. Again that asks for proof of a negative and ignores where the burden of proof lies. More relevantly I find that there is no belief for the purposes of Rule 29.08(1) and the application for particular discovery in respect of those documents is refused.
Paragraph 12 of the Schedule seeks discovery of Estate Management Plans, as well as drafts and related communications. The Defendant’s evidence, which I accept, is that those documents are subject to the Defendant’s PII claim. The Plaintiff, not otherwise providing any evidence to satisfy me of the existence of any other documents in this category, means that the Plaintiff’s entitlement to production of those documents depends entirely on the determination of the PII claim. For current purposes however, and on a similar basis as for my orders in respect of paragraphs 1(e) and 1(j), an order pursuant to Rule 29.08(1) is refused.
Paragraph 13 of the Schedule relates to documents, predating November 2016 which projects numbers in immigration detention facilities, i.e., not just the Plaintiff's facility, from 2010 to a cut-off date of November 2016. That cut-off date is the date when the Defendant vacated the facility. Hence nothing beyond that date is likely to be relevant.
The Plaintiff argues that the relevance of those documents is raised on the pleadings in respect of the alleged representation that the Defendant would occupy the facility for at least 10 years. This argument also relates to the pleading at paragraph 38 of the current Statement of Claim which alleges a representation, made on 20 February 2015, i.e., after occupation of the facility, that the Defendant would lease the facility for at least five years from 7 November 2014. That date is the expiration date of the initial term specified in the formal lease documents.
I think there is a major fault with the pleading in paragraph 38 of the current Statement of Claim. It does not relate to any relief sought. It is a representation made after the facility was completed and therefore the Plaintiff could not have relied on it in terms of the Plaintiff’s claim. I doubt that it is a material fact. I accept that it might amount to evidence confirming the second of the representations alleged in paragraph 10 of the Second Amended Statement of Claim but if that is the case then it appears to only plead mode of proof which is impermissible by Rule 13.02(1)(a) of the Rules. Essentially it amounts to little more than a representation confirming the earlier representation that extensions would be entered into to ensure at least a 10 year occupancy. Notwithstanding that, I am of the view that the earlier representation alone is sufficient to relate the requested documents to a question on the pleadings.
The Defendant's evidence in answer is Spain No 1[53] where it is conceded that no searches were directed specifically to these documents as it was not considered to be raised on the pleadings. This continues the Defendant’s overly narrow reading of the pleadings. For the same reasons that I gave earlier, I disagree with the Defendant and I agree with the Plaintiff that it is a question raised on the pleadings, specifically the pleading of the representations. As the Defendant has not searched for those documents the Defendant’s discovery is clearly deficient and an order for particular discovery of the documents sought is appropriate.
Client Legal Privilege (LPP)
Paragraph 18 of the Schedule to Plaintiff's Amended Summons sets out the orders sought by the Plaintiff in respect of the Defendant’s claims to LPP. The Defendant also seeks orders in respect of LPP on its Amended Summons, in effect to confirm the existence of LPP over certain of the documents discovered by Serco.
Relevant to considerations of client legal privilege are sections 117-119 of ENULA. Those sections provide as follows:
117Definitions
(1) In this Division:
client includes the following:
(a)a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service);
(b) an employee or agent of a client;
(c) an employer of a lawyer if the employer is:
(i) the Commonwealth or a State or Territory; or
(ii)a body established by a law of the Commonwealth or a State or Territory;
(d)if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client – a manager, committee or person so acting;
(e) if a client has died – a personal representative of the client;
(f)a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made.
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.
confidential document means a document prepared in such circumstances that, when it was prepared:
(a) the person who prepared it; or
(b) the person for whom it was prepared;
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
lawyer means:
(a) an Australian lawyer; and
(b) an Australian-registered foreign lawyer; and
(c)an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country; and
(d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c).
party includes the following:
(a) an employee or agent of a party;
(b)if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a party – a manager, committee or person so acting;
(c) if a party has died – a personal representative of the party;
(d)a successor to the rights and obligations of a party, being rights and obligations in respect of which a confidential communication was made.
(2) A reference in this Division to the commission of an act includes a reference to a failure to act.
118Legal advice
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 made between the client and a lawyer; or
(b)a confidential communication made between 2 or more lawyers acting for the client; or
(c)the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person;
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
119Litigation
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 privilege in section 118 is often referred to as the advice privilege, and that in section 119, as the litigation privilege. Together they comprise client legal privilege. Sections 118 and 119 both relate to a "confidential communication" or a "confidential document". Each of those terms is defined in section 117. There are two essential requirements for the existence of LPP. Firstly, that the communication or document is confidential. Secondly, that the dominant purpose of the communication, or of the preparation of the document, was the provision of legal advice to the client or the provision of professional legal services to the client in respect of legal proceedings. Both requirements must be satisfied before the privilege applies.
By section 142(1) of ENULA, the claimant of privilege, the Defendant in this case, bears the onus of proof in respect of each element of a claim to privilege and, specifically in the current context, that the communication or document, as the case may be, is protected by the privilege. The civil standard of proof applies.
All of the Defendant’s claims for LPP relate to documents. However, where the document merely evidences a confidential communication, the test to be applied is that in respect of confidential communications and not confidential documents.[54]
In the case of communications involving the “client” directly with third parties, effectively the confidentiality obligation must be on the third party.[55] That is because the client owns the privilege and can deal with it as the client pleases, particularly considerations of waiver can apply if the client itself makes a communication with a third party without specifying expressly that the communication is confidential, or where the circumstances do not support the existence of an implication to that effect. At common law, in general terms, doing an act inconsistent with the maintenance of a privilege can amount to a waiver of the privilege. Section 121 of ENULA incorporates much of the existing common law in that respect. Subject as aforesaid, as long as either the creator of the communication or document, or on the recipient has the confidentiality obligation, the requirements are satisfied.
As an aside, the Defendant submitted[56] that some of the authorities relied on by the Plaintiff to support its arguments, in part at least, were inapt as they were cases dealing with the common law form of the privilege. This was not developed further by Mr Ilkovsky, who argued this part of the application on behalf of the Defendant, in the course of argument. The submission apparently relied on section 4(1)(b) of ENULA to support the proposition that only the provisions of ENULA are relevant. I think the reference to that provision in ENULA is an error as, noting that it deals with the application of ENULA to interlocutory hearings, it is not on point. As section 9 of ENULA generally confirms that common law principles still apply unless inconsistent with ENULA, then absent some clarification of the Defendant’s submission, I must reject that argument.
Although purpose in respect of the dominant purpose requirements in sections 118 and 119 of ENULA is to be determined objectively, the evidence of the maker of the communication or creator of the document is relevant and will often be decisive[57] as they can give direct evidence of the specific purpose of the communication or document. The evidence of the Defendant is entirely the evidence of Mr Spain and he is not a party to a communication of the creator of the document. His evidence as to purpose, which is challenged in any case, therefore is not entitled to this status.
The general inspection provisions contained in section 133 of ENULA, which applies to all privileges under Part 3.10 of ENULA, gives the Court a general power to inspect the documents for the purposes of determining a claim to privilege. The authorities differ on the use of the power of inspection in respect of PII and LPP. In respect of PII, the authorities are to the effect that the power of inspection should be used sparingly. In the case of LPP, the authorities are to the effect that if the Court is left in any doubt as to whether the claim is made out, an inspection ought to occur as a matter of course. The more liberal approach to inspection of the documents for LPP claims in comparison to PII claims is no doubt accounted for by the greater sensitivity of documents which are the subject of PII, therefore I think justifying greater restriction on inspection in those cases.
The evidence relied on in respect of LPP is firstly, for the Plaintiff, Sanders No 2, Sanders No 3, and Sanders No 5. The Plaintiff also relies on some affidavits filed by the Defendant namely, Spain No 1, Spain No 2, and the affidavits of Mr Spain made 20 October 2019 (Spain No 3) and 31 January 2020 (Spain No 4). Sanders No 5 and Spain No 2 relate to the LPP challenges in respect of some further discovery made by the Defendant in December 2019. Spain No 2 additionally identifies a further three in-house Department lawyers who were involved in the communications or documents referred to therein.
The Defendant’s main evidence is Spain No 3. That evidence includes a general statement, no doubt intended to satisfy the applicable purpose requirements in sections 118 and 119 of ENULA namely, that the communications or documents, as the case may be, were "…for the dominant purpose of giving instructions for legal advice, the provision of legal advice, or in connection with the conduct of the proceeding". A similar general statement appears in Spain No 4 in respect of the documents discovered by Serco. This general form of evidence was challenged as being inadmissible, see below.
Spain No 4 also identifies further documents, which are documents of a similar nature to those between the Defendant and Serco, but this time involving Security and Technology Services (STS). STS provided decommissioning services to the Defendant at the facility. That affidavit again includes a general statement that the purpose of the enquiries directed to STS was the obtaining of legal advice and professional services in respect of the Plaintiff's claim relative to the decommissioning services provided by STS.
As is apparent from the foregoing summary, the Defendant’s affidavits are structured to contain overall general evidence in respect of the Defendant’s claim of LPP broadly, together with some specifics in respect of various of those documents. In the main however, the evidence in relation to the basis of the Defendant's claim for LPP is the description appearing in the schedules to those affidavits.[58]
Determination of the claims to LPP has been a time consuming task, as no doubt was the case in respect of the making of the application itself. This was quite an out of the ordinary interlocutory application and it necessarily involved an examination of the disputed documents in conjunction with the evidence and the submissions of each party. Unusually for an interlocutory application dealing with discovery, there was over 2,000 pages of evidence and submissions dealing with all questions on both Summonses.
I first make some general comments in respect of the claim to LPP and the evidence led. Often appearing throughout the Plaintiff’s written submissions is a statement that the evidence of the Defendant is inadmissible, or that the “factual basis for the existence of the privilege has not been established”. I think the latter refers to the absence of evidence of either the existence of the confidential obligation, or of the requisite purpose. The former, insofar as it relates to the confidentiality obligation, relates to bare statements contained within the Defendant’s affidavits to the effect that specified communications or documents were “confidential”. In so far as it relates to purpose, that relates to the frequently appearing general evidence in the Defendant’s affidavits amounting to a bare statement to the effect that the purpose was the obtaining of legal advice or in conjunction with legal proceedings. Rather than being evidence of that purpose, that appears to simply restate the prerequisites in sections 118 and 119 of ENULA. Mr Christrup, who dealt with this part of the application for the Plaintiff, argued that such bare statements were inadmissible as they were only a conclusion and not evidence.
I think that some allowance must be made for the practical limitations on the Defendant in respect of evidence of purpose. The Defendant submitted that its evidence must necessarily be in general terms as greater detail would result in the disclosure of the substance of the communication or document thereby compromising the claim to privilege. Mr Ilkovsky submitted that conclusory evidence of this type is normally accepted in some jurisdictions. However, nothing was put to demonstrate the application of that approach in the Northern Territory. I can only assume that it is based on some specific legislation in those jurisdictions. It is not the practice in the Northern Territory and applying that would cut across the law of evidence. Submissions as to practices in other jurisdictions without some basis to show that those practices are binding in the Northern Territory are of no utility and I disregard them.
Mr Christrup in response submitted that evidence of the generality proposed by the Defendant was inconsistent with the two major High Court cases in relation to discovery. These were firstly, in Grant v Downs[59], where Stephen, Mason and Murphy JJ, when discussing the onus on the party claiming privilege, said:
He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine documents for itself, a power which has been exercised too sparingly in the past, sparingly possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence.[60]
Secondly, in Esso Australia Resources Ltd v Commissioner of Taxation[61] where Gleeson CJ, Gaudron and Gummow JJ said:
A claim to privilege is not conclusively established by the use of a verbal formula. A court has power to examine documents in cases where there is a disputed claim, and it should not be hesitant to exercise such power.[62]
I do not read either as prohibiting formulaic or conclusory evidence. Indeed, the comments in both instances were made in the course of discussions of the court’s power of inspection. Specifically, in both cases their Honours said formulaic evidence could not be conclusive, which seems to acknowledge that such evidence is permissible, subject at least to the inspection of the documents for verification purposes. If evidence of that nature was to be inadmissible in that instance, then there should likewise be an impediment to the evidence of opinions expressed by senior public servants in PII cases. The rationale would appear to be the same in both cases namely, that greater specificity might compromise the very claim for privilege sought to be protected.
If the exception in PII cases relates to the permissibility of the opinion evidence in PII cases, then again that should at least equally apply to LPP cases, especially in the current case where the expert opinion relates to matters of law and is that of a senior and experienced lawyer, with legal knowledge of the requirements of privilege and who is bound by duties owed to the Court. By contrast, in PII cases the expert evidence is usually that of non-legally qualified, senior public servants.
I raised this with Mr Christrup who submitted that Mr Spain’s evidence was not provided in the form of expert evidence under the Rules or the relevant Practice Direction.[63] I think that is a procedural formality which the Court can dispense with in any case. He also said that Mr Spain has not approached the task as an expert in any other field would i.e., that Mr Spain has only looked at the document and assessed the purpose himself rather than consulting with the creators of the documents about the actual purpose. That appears to be a correct assessment of Mr Spain’s approach but, in my view as the conclusion is in respect of a legal matter, which Mr Spain is clearly qualified to express, that alone would not compromise Mr Spain’s opinion. Moreover, if Mr Spain consulted with the creators as Mr Christrup suggests he should, then his evidence would not need to be given as expert evidence as it would then be admissible on an information and belief basis on an interlocutory hearing.[64]
In Spencer No 3, when dealing with a complaint that evidence in support of claim of PII lacked specifics, Emmett J responded that that was the nature of such claim.[65] When referring to the “nature” of the claim I think that his Honour was characterising that based on the rationale for permitting general evidence in PII cases. I do not read that as necessarily being confined to PII cases. The rationale equally applies to LPP.
The Defendant’s evidence additionally sets out the process by which the relevant documents were assessed for the purposes of claiming privilege, in particular paragraph 6(e) of Spain No 3 where Mr Spain deposes that he reviewed the Defendant’s claims to LPP and considered the basis of those claims. Overall Mr Ilkovsky submitted that it is not only the conclusory statements by Mr Spain that are determinative in that those statements need to be looked at in the context of other information, some appearing within the document itself for example its title, who was the sender and who was the receiver and Mr Spain’s own evidence following his review. The submission carries more weight when viewed in light of the comments of the High Court recognising that often the purpose of the communication or document will be apparent from an inspection.[66]
Overall, and consistent with my reading of Spencer No 3, Grant v Downs[67] and Esso Australia Resources Ltd v Commissioner of Taxation,[68] I intend to admit conclusory statements as to purpose but, as that evidence is not conclusive, I intend also to inspect the relevant documents and if, following the inspection the nature and character of the document does not confirm the purpose, the claim to LPP will be rejected.
I do not consider that the same approach should apply to conclusory statements as to the existence of a confidential obligation. That is because I am not satisfied that greater specificity of evidence establishing the existence of the confidentiality obligation could operate to compromise the privilege. The evidence of the Defendant for this purpose necessarily identifies the sender, creator, or recipient of the communication or document. Hence, absent a valid reason being demonstrated to the contrary the Defendant could have provided actual evidence of the nature, circumstances and existence of the confidentiality obligation in lieu of generalised or conclusory statements.
With that background, I now deal with each of the documents the subject of a claim to LPP. Firstly, for completeness, in respect of the documents where each party has conceded its position. In respect of the documents where the Plaintiff no longer presses its challenge to the Defendant’s claim to LPP, this relates to the documents identified as LP1-LP26, LP30, LP31, LP49-LP52, LP70-LP72, LP74-LP83, LP89-LP90, LP138 (in part), LP142, LP149-LP152, LP154-LP155, LP158-LP173, LP175-LP183, LP187-LP188 and LP190-LP212. In case it remains necessary, in respect of those documents the Defendant’s claim to LPP is upheld.
The Defendant has conceded its claim to LPP in respect of the documents identified as LP27, LP32-LP33, LP106-LP107, LP129-LP130, LP156 and LP174. In respect of those documents, the Defendant’s claim to LPP is rejected. Likewise, the Defendant has conceded its claim to privilege in respect of the documents identified as LP35-LP38 and LP92-LP95. However, those documents are documents over which the Defendant has also claimed PII. Again, to the extent that an order remains necessary, the Defendant’s claim to LPP over those documents is rejected but the Plaintiff’s entitlement to production of those documents will depend on the determination of the claim to PII in respect of those documents.
The claims in respect of some documents can be conveniently dealt with collectively. This relates to documents, (which I will refer to as the secondary document), where the determination of LPP is for the same or similar reasons, and based on substantially the same or similar evidence as another document (which other document I will refer to as the primary document). This applies where firstly, a claim to LPP has been made in respect of documents which are either duplicates of other documents or, which are wholly or partly contained within another document. Secondly, where the secondary document is simply an attachment appearing on another document. In those instances, the claim to LPP over the secondary document necessarily stands or falls with the determination of the claim to LPP in respect of the primary document. I have upheld the claim to privilege in respect of LP133 and each of the documents identified as LP134-LP137 are secondary documents to LP133, hence the claim to privilege is also upheld in respect of LP134-LP137.
On the same basis, I have rejected the claim to privilege in respect of each of the primary documents listed below and the claim to privilege is also rejected in respect of the related secondary document. The secondary documents this applies to are the documents identified as LP29 (LP28), LP34 (LP28), LP43 (LP28), LP97-LP98 (LP96), LP100 (LP99), LP101 (LP99), LP104 (LP103), LP109 (LP108), LP111 (LP110), LP113-LP118 (LP112), LP120 (LP119), LP121 and LP126 (LP125), LP123 (LP119), LP185 (LP110), LP186 (LP132), and LP189 (LP110). The identifier of the related primary document in each case appears in brackets immediately after the reference to the related secondary document. In respect of those documents the Defendant’s claim to LPP is rejected.
On the same basis, in respect of the following primary documents where I have decided to inspect the document before making a final decision, I will also inspect the following secondary documents namely, LP41 (LP40), LP56 (LP60), LP64 (LP63), LP66 (LP55), LP67 (LP55 and LP66), LP73 (LP69), LP85 (LP84), LP86 (LP63), LP87 (LP62), LP88 (LP86), LP102 (LP62 and LP63) and LP147 (LP146).
Next, the claim in respect of documents where the claim to LPP is to be rejected for failure to prove the required confidential obligation. There are numerous instances where the only evidence led by the Defendant of the confidential obligation is a bare statement describing or referring to a communication, or a document, as being confidential or by use of words to similar effect. As I have said, there is no justification for that lack of specificity. Absent some reason being shown as to why better evidence could not be led, for example, that disclosure of that material would tend to disclose the substance of the confidential communication (and I am currently unable to conceive of a situation where that could occur), I am not prepared to accept bare statements to that effect. Therefore, the existence of a confidentiality obligation has not been established in those instances. The documents in this category are LP28, LP103, LP108, LP110, LP112, LP119, LP120-LP124, LP127, LP128 and LP132. Further comments below apply to some of these documents. The Defendant’s claim to LPP in respect of those documents is therefore rejected.
The documents the subject of the Defendant’s Amended Summons have been divided into 17 groups (although five of those groups comprise a single document). Given the relatively small number of documents involved overall and as the determination of the claim for privilege is similar in many instances, it is convenient to deal with those documents together and separately to other documents the subject of a challenged claim to LPP. In respect of one of those groups (document 17), the type of privilege claimed is Without Prejudice Privilege (WPP) and not LPP. I will therefore separately deal with that when dealing with the other WPP claims. Of the remaining documents, in my assessment there is no evidence to satisfy the confidentiality obligation requirement in respect of the documents numbered 1-6, 8-9, 11, 13-16.
In documents 1, 4, 5, 6, 8, 9, 11 and 13, the communications are between the relevant Department of the Defendant and Serco and therefore the confidentiality obligation can only be on Serco. Further, documents 2, 3, 15 and 16 are entirely internal communications within Serco and therefore not only can the confidentiality obligation only be on Serco, only Serco can create the obligation of confidentiality. There is no evidence to establish an express obligation in either instance, particularly in the case where that obligation can only be created by Serco. The Defendant relied on the assertion that the communication related to, or reproduced, the content of the Defendant’s enquiries for the purposes of the current proceedings as the basis of LPP in respect of the documents in 1-9, 11, 13-16 and the purpose of legal advice was relied on in respect of documents 10 and 12. I am not satisfied that this establishes an implied confidentiality obligation. Moreover, if the Defendant shared the results of those enquiries with Serco then I think the effect of that is that the Defendant has waived any privilege that might have existed in respect of those enquiries rather than demonstrating an implied obligation of confidentiality. Further, and although not conclusive, Serco did not consider the documents to be confidential as it has discovered the documents without claiming privilege. Nor has it not sought to be heard on the Defendant’s summons to enforce privilege over those documents.
Without Prejudice Privilege, which is sometimes known as settlement privilege, is regulated by section 131 of ENULA which provides: -
131 Exclusion of evidence of settlement negotiations
(1) Evidence is not to be adduced of:
(a)a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or
(b)a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.
At the core of the statutory form of the privilege is a communication made between persons in a dispute, or between one or more persons in a dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute. Alternatively, the privilege can attach to a document that has been prepared in connection with an attempt to negotiate the settlement of a dispute. The common law form of the privilege operated differently, and more narrowly, in that it applied in respect of an admission, either express or implied, made in the course of a genuine attempt to reach a settlement of a dispute.
The evidence relied on in respect of WPP is Spain No 2 and Spain No 4 for the Defendant and Sanders No 5 for the Plaintiff.
There are five documents the subject of the claim to WPP. One is document number 17 of the documents discovered by Serco and I will deal with that document first.
As discussed in paragraph 97 above in respect of documents 10 and 12 of the documents discovered by the Serco, in addition to its claim to WPP the Defendant alleges that the document is not relevant to the proceedings as it relates to another facility. In this respect my comments above in respect of documents number 10 and 12 equally apply.
In respect of the claim to WPP with respect to this document, the evidence[69] is that the document is a letter from the Defendant’s solicitors to Serco dated 6 March 2018 and issued for the purposes of PD6. That is the extent of the evidence and I do not think that is sufficient to establish the requirements of section 131 of ENULA. To satisfy those requirements would have required evidence that the document was created for the purposes of negotiating a settlement of the dispute between the Defendant and Serco and a simple statement to that effect would have been acceptable in the circumstances.
PD6 contains some provisions requiring the parties to engage in specified pre-action conduct. It includes provisions requiring consideration of alternative dispute resolution as well as discussions with a view to resolving the dispute. There are also provisions in respect of disclosure of documents. I will consider the application of PD6 further, in case the position is that the Defendant is arguing that pre-action correspondence alone is sufficient to satisfy the requirements for WPP. This may be the Defendant’s position as the Defendant has relied on the requirement to consider alternative dispute resolution and the provisions of paragraph 12 of PD6 to support its claims of WPP in respect of some other documents which are discussed below.
Relevant paragraphs of PD6 are now reproduced:
1Parties to a potential dispute should follow a reasonable procedure, suitable to their particular circumstances, which is intended to avoid litigation. The procedure should not be regarded as a prelude to inevitable litigation. It should normally include:
1.1 the plaintiff writing to give details of the claim;
1.2 the defendant acknowledging the claim letter promptly;
1.3the defendant giving within a reasonable time a detailed written response; and
1.4the parties conducting in good faith genuine and reasonable negotiations with a view to settling the claim economically and without court proceedings.
6. The plaintiff 's letter should:
6.1give sufficient concise details to enable the recipient to understand and investigate the claim without extensive further information;
6.2enclose copies of the essential documents on which the plaintiff relies and any documents (except privileged documents) which might significantly impair the plaintiff’s case;
6.3ask for a prompt acknowledgement of the letter, followed by a full written response within a reasonable stated period;
(For many claims, a normal reasonable period for a full response may be one month.)
6.4state whether court proceedings will be issued if the full response is not received within the stated period;
6.5identify and ask for copies of any essential documents, not in the plaintiff’s possession, which the plaintiff wishes to see;
6.6state (if this is so) that the plaintiff wishes to enter into mediation or another alternative method of dispute resolution; and
6.7draw attention to the Court's powers to impose sanctions for failure to comply with this Practice Direction and, if the recipient is likely to be unrepresented, enclose a copy of this Practice Direction.
10.If the defendant does not accept the claim or part of it, the response should:
10.1give detailed reasons why the claim is not accepted, identifying which of the plaintiff's contentions are accepted and which are in dispute;
10.2enclose copies of the essential documents on which the defendant relies, and any documents (except privileged documents) which significantly impair the defendant’s case;
10.3enclose copies of documents asked for by the plaintiff, or explain why they are not enclosed;
10.4identify and ask for copies of any further essential documents, not in the defendant’s possession, which the defendant wishes to see; and
(The plaintiff should provide these within a reasonably short time or explain in writing why he is not doing so.)
10.5state whether the defendant is prepared to enter into mediation or another alternative method of dispute resolution.
11.The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. Both the plaintiff and defendant may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if this paragraph is not followed then the Court may have regard to such conduct when determining costs.
12.Subject to any order of the Court documents disclosed by either party in accordance with this Practice Direction may not be used for any purpose other than resolving the dispute or any subsequent proceeding relating to the dispute, unless the other party agrees.
It can be seen that PD6 has the objective of encouraging, by pre-action correspondence, the exchange of information about a prospective claim. Paragraph 1.4 requires the parties to attempt to settle the claim and paragraph 11 requires the parties to consider alternative dispute resolution. Paragraphs 6.2, 6.5, 10.2 and 10.4 refer to documents (“essential documents”) and in part creates an obligation to provide those documents to the other party and also entitles a party to request such documents from the other party.
I do not consider that those provisions necessarily make the required pre-action correspondence itself privileged. For that to occur the correspondence would also need to satisfy the requirements for WPP in section 131 namely, that the communication is made as an attempt to negotiate a settlement of the potential claim or that it is a document created in connection with an attempt to negotiate such a settlement. Although alternative dispute resolution and settlement negotiations are clearly contemplated, and although communications in the course of any such subsequent alternative dispute resolution or negotiations likely will be the subject of WPP, it is however wrong to assume that privilege automatically applies because that correspondence is provided pursuant to PD6 and by reason of the requirement in PD6 to consider alternative dispute resolution. That alone is not sufficient.
The purpose of paragraph 12 of PD6 is to afford the same protection to documents disclosed pursuant to PD6 as applies to documents discovered through the usual discovery process. The Defendant has submitted that the paragraph 12 of PD6 makes communications for the purposes of PD6 privileged and prohibits disclosure without the consent of the other party. However, that is not the effect of that paragraph. Paragraph 12 merely applies the common law principle applying to the use of discovered documents to documents disclosed pursuant to PD6.
The claim of the Defendant to WPP in respect of that document is therefore rejected.
The remaining four documents can be dealt with as two separate groups of documents. The first two documents, (WP1 and WP2), are both described as letters from the Defendant's solicitors to Serco's solicitors on different dates. The submissions of each party in respect of WP1 are identical to those in respect of WP2, hence why they can conveniently be dealt with together.
The basis of the claim for privilege in respect of those documents is that they were "issued on a without prejudice basis". I do not consider this to be sufficient evidence to satisfy the requirements of section 131 of ENULA. The evidence would have to at least demonstrate that it was a communication in an attempt to negotiate a settlement. In Davies v Nyland[70] it was held that merely stating on a document that it is issued on a without prejudice basis is not sufficient to establish the privilege. Although that case dealt with the common law version of the privilege, that decision has been approved of in the context of the statutory form of the privilege in Biovision 2020 Pty Ltd v CGU Insurance Ltd[71]. It might be said to be a conclusory statement but I would not admit that evidence for this purpose as it would have been a simple matter for the Defendant to provide evidence which specifically stated that the communications were made as part of an attempt to negotiate a settlement. Had that been the case, I would have at least opted to inspect the document before finally determining the claim.
The Defendant’s submissions in reply might be interpreted as attempting to change the basis of the claim for privilege from WPP to LPP. Those submissions state that the letters are communications between lawyers for two parties in the proceeding, such that it can be inferred that it contained communications referable to this proceeding. Secondly, it is submitted that the date of the communication means that the letters could not evidence any of the primary facts arising on the pleadings.
The former is irrelevant to WPP and does not address the requirements in section 131. It would be more apt for LPP. Although I agree that it can easily be inferred that the letters contained communications that are referable to this proceeding as the Defendant submits, that alone does not satisfy the statutory requirement in any case and that is the extent of the evidence that I have been provided with.
As to the second basis, which seems to be about relevance generally, I frankly do not understand why it is claimed that the letters are not relevant to the proceedings. These are documents which the Defendant has discovered. This is different to the situation in relation to the documents discovered by Serco as there, although the Defendant claimed privilege over the document, they were not discovered by the Defendant. Query therefore why the Defendant has discovered these documents if they are not relevant. As the Defendant has discovered the documents, the Defendant cannot now claim that they are not relevant to a question on the pleadings.
The Defendant’s claim for WPP in respect of those two documents is therefore rejected.
The remaining documents (WP3 and WP4), although separate documents and with differing parties, also have a common basis for the claim to WPP namely, it is apparently based on the document being a letter (or in the case of WP4, a draft of such a letter) issued, or to be issued, in accordance with PD6.
The Defendant makes the same submissions in respect of PD6 as made in relation to the document referred to in paragraph 116 and I repeat the comments I made there. WP3 is described as "containing without prejudice communications". That is not the test, and Davies v Nyland[72] and Biovision 2020 Pty Ltd v CGU Insurance Ltd[73] are authority that such a description alone is insufficient. Likewise, if it is put as conclusory evidence, for the same reasons as expressed in paragraph 116, I am not prepared to admit that.
In relation to WP4, the letter was a draft only and was not actually dispatched. It is not clear on the evidence if this was directed to the same party as for WP3. The claimed basis of privilege for WP3 namely, that it contained without prejudice communications in relation to the proceeding, is omitted in the case of WP4. In any case, there is still no evidence to establish the requirements of section 131 of ENULA in connection with WP4.
Therefore, the Defendant’s claim to WPP in respect of WP3 and WP4 is also rejected.
Based on the foregoing, the orders I intend to make are as follows:
(a)the order for costs sought in paragraph 2 of the Plaintiff’s Amended Summons filed 21 January 2020 is adjourned sine die with liberty to apply;
(b)the Defendant is to produce to the Court on a confidential basis, all of the documents over which it has claimed PII together with, and also on a confidential basis, any further affidavit evidence and submissions it wishes to rely on in respect of the claim of PII;
(c)further consideration of the Plaintiff’s application for particular discovery in respect of the documents referred to in paragraph 14 of the Schedule to its Amended Summons filed 21 January 2020 is adjourned sine die with liberty to apply;
(d)pursuant to Rule 29.08(1) of the Rules the Defendant is to make and serve on the Plaintiff an affidavit in terms of that Rule with respect to the documents referred to in paragraph 1(c) and paragraph 13 of the Schedule to the Plaintiff’s Amended Summons;
(e)the Plaintiff’s application for an order pursuant to Rule 29.08(1) of the Rules in respect of the documents referred to in paragraphs 1(d)-1(h), 1(j), 2, 4, 11 (save as provided for in paragraphs 56 and 57) and 12, is refused;
(f)the Defendant’s claim to LPP is upheld in respect of the documents described as LP1-LP26, LP30, LP31, LP39, LP42, LP45-LP54, LP60-LP64, LP68-LP72, LP74-LP85, LP89-LP90, LP131, LP133-LP140, LP142, LP144, LP149-LP152, LP154-LP155, LP158-LP173, LP175-LP184, LP187-LP188, LP190-LP212, the first of the emails to in LP141 referred to in paragraph 102(l);
(g)the Defendant’s claim of LPP is rejected in respect of the documents described as LP27-LP28, LP32-LP33, LP34, LP43, LP91, LP96-LP101, LP103-LP113, LP119-LP130, LP132, the second email in LP141 referred to in paragraph 102(l), LP143, that part of LP145 as described in paragraph 102(o), LP153, other than the part to be redacted as provided in paragraph 102(r), LP156-LP157, LP174, LP185-LP186, LP189 and documents 1-6, 8-16 of the documents discovered by Serco;
(h)further consideration of the Defendant’s claim to LPP respect of LP35-LP38 and LP92-LP95 is adjourned pending determination of the Defendant’s claim of PII in respect of those documents;
(i)the Defendant is to produce to the Court for inspection, on a confidential basis the documents described as LP39, LP40, LP42, LP4-LP48, LP53-LP67, LP69, LP84-LP88, LP102, LP110-LP120, LP123, LP134-LP138, LP146, LP148, LP153, and document number 7 of the documents discovered by Serco, together with, and also on a confidential basis, any further affidavit evidence (being limited to any other matters relied on by the Defendant when making its claim to LPP in respect of those documents and not to include fresh evidence), and submissions in respect of the claim of privilege in respect of those documents;
(j)the Defendant’s claim of WPP is rejected in respect of document number 17 of the documents discovered by Serco and the documents described as WPP1-WPP4.
I will hear the parties as to consequential orders such as costs, the time required for compliance with orders for production of documents for inspection purposes and the time for production of documents where the Defendant’s various claims of privilege have been rejected.
[1] Whitlam v Australian Consolidated Press (1985) 73 FLR 414 at p 421-422.
[2]Sankey v Whitlam (1978) 142 CLR 1; Spencer v Commonwealth of Australia (No 3) [2012] FCA 637.
[3]Eastman v The Queen (1997) 76 FCR 9 at 63; Matthews v SPI Electricity Pty Ltd & Ors [2014] VSC 65; Tatts Group Ltd v Victoria [2013] VSC 301 at para 26.
[4] See subparagraph 8(b).
[5] Commonwealth v Northern Land Council (1993) 176 CLR 604 at pp 617-618.
[6] (1985) 73 FLR 414.
[7] (1978) 142 CLR 1.
[8] (1993) 176 CLR 604.
[9] [2012] FCA 637.
[10] [2016] VSC 438.
[11] [2014] VSC 65.
[12] [2012] FCA 637.
[13] NLC.
[14]Sankey at 43; NLC.
[15]Spencer (No 3); Sankey at p 43; NLC at pp 615-616.
[16] NLC at p 614.
[17] Kamasaee at para 51.
[18]Kamasaee at para 64; NLC at p 615.
[19] Spencer at paragraph 12.
[20] Matthews at paras 23-24.
[21]NLC at pp 619-620; Spencer (No 3) at para 21.
[22] Matthews at para 24.
[23] Tatts Group Ltd v Victoria [2013] VSC 301 at para 50.
[24] Sankey.
[25]Sankey at pp 43-44.
[26] Spencer (No 3) at para 43.
[27]Young v Quin (1985) 59 ALR 225 at 231; Spencer at p 323.
[28] NLC at pp 617-618.
[29] ENULA s 133; NLC at p 619.
[30] NLC at p 617-618.
[31]NLC at p 619; Spencer at p 322.
[32]NLC at p 617; Spencer (No 3).
[33] Sankey at pp 43-44.
[34] Sankey at 99.
[35] See paragraph 10.2 and paragraph 11 of the Second Amended Statement of Claim.
[36] See subparagraphs 8(g) and (m).
[37] See paragraph 8(l); Spencer No 3, at paragraph 43.
[38]Murray Pest Management Pty Ltd v A & J Bilske Pty Ltd & Ors [2009] NTSC 68; Minkie (NT) Pty Ltd v Wise Channel Marketing Pty Ltd & Anor [2011] NTSC 53; Cook v Modern Mustering Pty Ltd & Ors; Savage & Ors v Modern Mustering Pty Ltd & Ors [2013] NTSC 78; Joondanna Investments Pty Ltd v The Minister for Lands, Planning and the Environment & Anor [2014] NTSC 58; Complete Crane Hire (NT) Pty Ltd v Marchetti Autogru (Italy) [2015] NTSC 32; Morgan v Commissioner of Police [2019] NTSC 62.
[39] [2011] NTSC 53.
[40]Martell v Victorian Coal Miner’s Assn (1903) 28 VLR 643; Pendlebury v O'Neill (1911) 11 SR (NSW) 188; Kent Coal Concessions Ltd v Duguid [1910] AC 452; Beecham Group Ltd v Bristol-Meyers Co Ltd [1979] VR 273; Smith v Goldring (1887) 4 WN (NSW) 13; British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] AC 709; Mulley & Marnie v Manifold (1959) 103 CLR 341; ACE Hire Aust Pty Ltd v ADI Ltd [2006] NSWSC 969.
[41] Rule 13.02(1)(a).
[42] Construction costs were of the order of $60 million.
[43] Late November 2010, per Second Amended Statement of Claim, paragraph 10.
[44] Paras 4-34.
[45] Paragraph 5 of the Second Amended Statement of Claim.
[46] Spain No 1, paragraph 47.
[47] Sanders No 2, paragraphs 4, 5 and 6 and annexure RPS5.1.
[48] Sanders No 2, paragraph 6 and annexures RPS5.2 – RPS5.11.
[49] Spain No 1, paragraph 54.
[50] Sanders No 2, Annexure RPS5.14.
[51] Paragraphs 49-51 and annexures RPS5.42 – RPS5.44.
[52] At paragraphs 110 -111.
[53] At paragraph 121.
[54]Telstra Corp Ltd v Australis Media Holdings (1997) 41 NSWLR 147; Meteyard v Love (2001) 65 NSWLR 36.
[55]New South Wales v Jackson [2007] NSWCA 279.
[56] Defendant's submissions filed 6 March 2020, paragraph 89.
[57] Grant v Downs (1976) 135 CLR 674 per Callinan J at p 107.
[58] Spain No 1, annexure MCS1 and Spain No 4, annexure MCS2.
[59] (1976) 135 CLR 674.
[60] (1976) 135 CLR 674 at p 689.
[61] (1999) 201 CLR 49.
[62] (1999) 201 CLR 49 at p 70.
[63] Practice Direction No 6 of 2015.
[64] Rule 43.03(2) of the Rules.
[65] Spencer No 3 at para 43.
[66]Grant v Downs (1976) 135 CLR 674; Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49.
[67] (1976) 135 CLR 674.
[68] (1999) 201 CLR 49.
[69] Spain No 4, annexure MCS1.
[70](1975) 10 SASR 76.
[71] [2010] VSC 589.
[72] (1975) 10 SASR 76.
[73] [2010] VSC 589.
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