Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 25]
[2024] WASC 132
•22 APRIL 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 25] [2024] WASC 132
CORAM: WHITBY J
HEARD: 31 JANUARY, 1, 5 - 7 & 12 FEBRUARY 2024
DELIVERED : 22 APRIL 2024
FILE NO/S: CIV 3041 of 2010
(Consolidated with CIV 2617 of 2012 by Orders dated 9 September 2014)
BETWEEN: WRIGHT PROSPECTING PTY LTD
Plaintiff
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
HOPE DOWNS IRON ORE PTY LTD
Second Defendant
BIANCA HOPE RINEHART
Third Defendant
JOHN LANGLEY HANCOCK
Fourth Defendant
HOPE RINEHART WELKER
Fifth Defendant
GINIA HOPE FRANCIS RINEHART
Sixth Defendant
HAMERSLEY WA PTY LTD
Third Party
(BY ORIGINAL ACTION)
BIANCA HOPE RINEHART
First Plaintiff by Counterclaim
JOHN LANGLEY HANCOCK
Second Plaintiff by Counterclaim
AND
GEORGINA HOPE RINEHART
First Defendant by Counterclaim
HANCOCK PROSPECTING PTY LTD
Second Defendant by Counterclaim
HANCOCK MINERALS PTY LTD
Third Defendant by Counterclaim
THE HANCOCK FAMILY MEMORIAL FOUNDATION LTD
Fourth Defendant by Counterclaim
TADEUSZ JOZEF WATROBA
Fifth Defendant by Counterclaim
WESTRAINT RESOURCES PTY LTD
Sixth Defendant by Counterclaim
HMHT INVESTMENTS PTY LTD
Seventh Defendant by Counterclaim
150 INVESTMENTS PTY LTD
Eighth Defendant by Counterclaim
HOPE RINEHART WELKER
Ninth Defendant by Counterclaim
GINIA HOPE FRANCIS RINEHART
Tenth Defendant by Counterclaim
MAX CHRISTOPHER DONNELLY as trustee in bankruptcy of LANGLEY GEORGE HANCOCK
Eleventh Defendant by Counterclaim
HOPE DOWNS IRON ORE PTY LTD
Twelfth Defendant by Counterclaim
ROY HILL IRON ORE PTY LTD
Thirteenth Defendant by Counterclaim
MULGA DOWNS INVESTMENTS PTY LTD
Fourteenth Defendant by Counterclaim
MULGA DOWNS IRON ORE PTY LTD
Fifteenth Defendant by Counterclaim
WRIGHT PROSPECTING PTY LTD
Sixteenth Defendant by Counterclaim
DFD RHODES PTY LTD
Seventeenth Defendant by Counterclaim
MATTHEW JOHN KEADY AND DOROTHEA MARGARET CAMPBELL as executors of DONOVAN FRANCES DUNCAN RHODES
Eighteenth Defendants by Counterclaim
(BY COUNTERCLAIM)
FILE NO/S: CIV 2617 of 2012
BETWEEN: WRIGHT PROSPECTING PTY LTD
Plaintiff
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
HOPE DOWNS IRON ORE PTY LTD
Second Defendant
BIANCA HOPE RINEHART
Third Defendant
JOHN LANGLEY HANCOCK
Fourth Defendant
HOPE RINEHART WELKER
Fifth Defendant
GINIA HOPE FRANCIS RINEHART
Sixth Defendant
HAMERSLEY WA PTY LTD
Third Party
(BY ORIGINAL ACTION)
FILE NO/S: CIV 2737 of 2013
BETWEEN: DFD RHODES PTY LTD
First Plaintiff
MATTHEW JOHN KEADY AND DOROTHEA MARGARET CAMPBELL as executor of the estate of DONOVAN FRANCES DUNCAN RHODES
Second Plaintiffs
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
WRIGHT PROSPECTING PTY LTD
Second Defendant
HOPE DOWNS IRON ORE PTY LTD
Third Defendant
BIANCA HOPE RINEHART
Fourth Defendant
JOHN LANGLEY HANCOCK
Fifth Defendant
HOPE RINEHART WELKER
Sixth Defendant
GINIA HOPE FRANCIS RINEHART
Seventh Defendant
HAMERSLEY WA PTY LTD
Third Party
(BY ORIGINAL ACTION)
BIANCA HOPE RINEHART
First Plaintiff by Counterclaim
JOHN LANGLEY HANCOCK
Second Plaintiff by Counterclaim
AND
GEORGINA HOPE RINEHART
First Defendant by Counterclaim
HANCOCK PROSPECTING PTY LTD
Second Defendant by Counterclaim
HANCOCK MINERALS PTY LTD
Third Defendant by Counterclaim
THE HANCOCK FAMILY MEMORIAL FOUNDATION LTD
Fourth Defendant by Counterclaim
TADEUSZ JOZEF WATROBA
Fifth Defendant by Counterclaim
WESTRAINT RESOURCES PTY LTD
Sixth Defendant by Counterclaim
HMHT INVESTMENTS PTY LTD
Seventh Defendant by Counterclaim
150 INVESTMENTS PTY LTD
Eighth Defendant by Counterclaim
HOPE RINEHART WELKER
Ninth Defendant by Counterclaim
GINIA HOPE FRANCIS RINEHART
Tenth Defendant by Counterclaim
MAX CHRISTOPHER DONNELLY as trustee in bankruptcy of LANGLEY GEORGE HANCOCK
Eleventh Defendant by Counterclaim
HOPE DOWNS IRON ORE PTY LTD
Twelfth Defendant by Counterclaim
ROY HILL IRON ORE PTY LTD
Thirteenth Defendant by Counterclaim
MULGA DOWNS INVESTMENTS PTY LTD
Fourteenth Defendant by Counterclaim
MULGA DOWNS IRON ORE PTY LTD
Fifteenth Defendant by Counterclaim
WRIGHT PROSPECTING PTY LTD
Sixteenth Defendant by Counterclaim
DFD RHODES PTY LTD
Seventeenth Defendant by Counterclaim
MATTHEW JOHN KEADY AND DOROTHEA MARGARET CAMPBELL as executors of the estate of DONOVAN FRANCES DUNCAN RHODES
Eighteenth Defendants by Counterclaim
(BY COUNTERCLAIM)
Catchwords:
Practice and procedure - Discovery - Inspection of discovered documents - Claim of legal professional privilege and without prejudice privilege over documents - Evidentiary onus on party challenging privilege to adduce sufficient evidence to establish that the claims to privilege are unfounded or mistaken - Order 26 r 9 RSC - Order 26 r 12 RSC
Practice and procedure - Waiver of privilege - Common interest privilege - Inconsistency of conduct - Voluntary disclosure of documents in proceedings - Voluntary disclosure of documents in arbitration - Part privilege claims
Practice and procedure - Circumstances in which the court will inspect documents
Legislation:
Commercial Arbitration Act 2012 (NSW)
Commercial Arbitration Act 2012 (WA)Rules of the Supreme Court 1971 (WA)
Result:
Applications dismissed
Category: B
Representation:
CIV 3041 of 2010
(Consolidated with CIV 2617 of 2012 by Orders dated 9 September 2014)
Original Action
Counsel:
Plaintiff : L Coleman First Defendant : P Brereton SC, C Bova SC & M Parker Second Defendant : P Brereton SC, C Bova SC & M Parker Third Defendant : A Hochroth, C Ernst & T Price Fourth Defendant : A Hochroth, C Ernst & T Price Fifth Defendant : No appearance Sixth Defendant : No appearance Third Party : No appearance
Interested Party : A Shearer, J Burnett & S Murray Solicitors:
Plaintiff : Clayton Utz First Defendant : Corrs Chambers Westgarth Second Defendant : Corrs Chambers Westgarth Third Defendant : YPOL Lawyers Fourth Defendant : YPOL Lawyers Fifth Defendant : Deutsch Miller Sixth Defendant : Dentons Australia Third Party : Allens
Interested Party : Gilbert +Tobin Counterclaim
Counsel:
First Plaintiff by Counterclaim : No appearance Second Plaintiff by Counterclaim : No appearance First Defendant by Counterclaim : No appearance Second Defendant by Counterclaim : No appearance Third Defendant by Counterclaim : No appearance Fourth Defendant by Counterclaim : No appearance Fifth Defendant by Counterclaim : No appearance Sixth Defendant by Counterclaim : No appearance Seventh Defendant by Counterclaim : No appearance Eighth Defendant by Counterclaim : No appearance Ninth Defendant by Counterclaim : No appearance Tenth Defendant by Counterclaim : No appearance Eleventh Defendant by Counterclaim : No appearance Twelfth Defendant by Counterclaim : No appearance Thirteenth Defendant by Counterclaim : No appearance Fourteenth Defendant by Counterclaim : No appearance Fifteenth Defendant by Counterclaim : No appearance Sixteenth Defendant by Counterclaim : No appearance Seventeenth Defendant by Counterclaim : No appearance Eighteenth Defendants by Counterclaim : No appearance Solicitors:
First Plaintiff by Counterclaim : YPOL Lawyers Second Plaintiff by Counterclaim : YPOL Lawyers First Defendant by Counterclaim : Speed & Stracey Lawyers Second Defendant by Counterclaim : Corrs Chambers Westgarth Third Defendant by Counterclaim : Corrs Chambers Westgarth Fourth Defendant by Counterclaim : Corrs Chambers Westgarth Fifth Defendant by Counterclaim : Corrs Chambers Westgarth Sixth Defendant by Counterclaim : Corrs Chambers Westgarth Seventh Defendant by Counterclaim : Corrs Chambers Westgarth Eighth Defendant by Counterclaim : Speed & Stracey Lawyers Ninth Defendant by Counterclaim : Deutsch Miller Tenth Defendant by Counterclaim : Dentons Australia Eleventh Defendant by Counterclaim : Corrs Chambers Westgarth Twelfth Defendant by Counterclaim : Corrs Chambers Westgarth Thirteenth Defendant by Counterclaim : Corrs Chambers Westgarth Fourteenth Defendant by Counterclaim : No appearance Fifteenth Defendant by Counterclaim : Corrs Chambers Westgarth Sixteenth Defendant by Counterclaim : Clayton Utz Seventeenth Defendant by Counterclaim : Taylor & Taylor Lawyers Pty Ltd Eighteenth Defendants by Counterclaim : Taylor & Taylor Lawyers Pty Ltd CIV 2617 of 2012
Counsel:
Plaintiff : L Coleman First Defendant : P Brereton SC, C Bova SC & M Parker Second Defendant : P Brereton SC, C Bova SC & M Parker Third Defendant : A Hochroth, C Ernst & T Price Fourth Defendant : A Hochroth, C Ernst & T Price Fifth Defendant : No appearance Sixth Defendant : No appearance Third Party : No appearance
Interested Party : A Shearer, J Burnett & S Murray Solicitors:
Plaintiff : Clayton Utz First Defendant : Corrs Chambers Westgarth Second Defendant : Corrs Chambers Westgarth Third Defendant : YPOL Lawyers Fourth Defendant : YPOL Lawyers Fifth Defendant : Deutsch Miller Sixth Defendant : Dentons Australia Third Party : Allens
Interested Party : Gilbert + Tobin CIV 2737 of 2013
Original Action
Counsel:
First Plaintiff : M Taylor & S Taylor Second Plaintiffs : M Taylor & S Taylor First Defendant : P Brereton SC, C Bova SC & M Parker Second Defendant : L Coleman Third Defendant : P Brereton SC, C Bova SC & M Parker Fourth Defendant : A Hochroth, C Ernst & T Price Fifth Defendant : A Hochroth, C Ernst & T Price Sixth Defendant : No appearance Seventh Defendant : No appearance Third Party : No appearance
Interested Party : A Shearer, J Burnett & S Murray Solicitors:
First Plaintiff : Taylor & Taylor Lawyers Pty Ltd Second Plaintiffs : Taylor & Taylor Lawyers Pty Ltd First Defendant : Corrs Chambers Westgarth Second Defendant : Clayton Utz Third Defendant : Corrs Chambers Westgarth Fourth Defendant : YPOL Lawyers Fifth Defendant : YPOL Lawyers Sixth Defendant : Deutsch Miller Seventh Defendant : Dentons Australia Third Party : Allens
Interested Party : Gilbert + Tobin Counterclaim
Counsel:
First Plaintiff by Counterclaim : No appearance Second Plaintiff by Counterclaim : No appearance First Defendant by Counterclaim : No appearance Second Defendant by Counterclaim : No appearance Third Defendant by Counterclaim : No appearance Fourth Defendant by Counterclaim : No appearance Fifth Defendant by Counterclaim : No appearance Sixth Defendant by Counterclaim : No appearance Seventh Defendant by Counterclaim : No appearance Eighth Defendant by Counterclaim : No appearance Ninth Defendant by Counterclaim : No appearance Tenth Defendant by Counterclaim : No appearance Eleventh Defendant by Counterclaim : No appearance Twelfth Defendant by Counterclaim : No appearance Thirteenth Defendant by Counterclaim : No appearance Fourteenth Defendant by Counterclaim : No appearance Fifteenth Defendant by Counterclaim : No appearance Sixteenth Defendant by Counterclaim : No appearance Seventeenth Defendant by Counterclaim : No appearance Eighteenth Defendants by Counterclaim : No appearance Solicitors:
First Plaintiff by Counterclaim : YPOL Lawyers Second Plaintiff by Counterclaim : YPOL Lawyers First Defendant by Counterclaim : Speed & Stracey Lawyers Second Defendant by Counterclaim : Corrs Chambers Westgarth Third Defendant by Counterclaim : Corrs Chambers Westgarth Fourth Defendant by Counterclaim : Corrs Chambers Westgarth Fifth Defendant by Counterclaim : Corrs Chambers Westgarth Sixth Defendant by Counterclaim : Corrs Chambers Westgarth Seventh Defendant by Counterclaim : Corrs Chambers Westgarth Eighth Defendant by Counterclaim : Speed & Stracey Lawyers Ninth Defendant by Counterclaim : Deutsch Miller Tenth Defendant by Counterclaim : Dentons Australia Eleventh Defendant by Counterclaim : Corrs Chambers Westgarth Twelfth Defendant by Counterclaim : Corrs Chambers Westgarth Thirteenth Defendant by Counterclaim : Corrs Chambers Westgarth Fourteenth Defendant by Counterclaim : No appearance Fifteenth Defendant by Counterclaim : Corrs Chambers Westgarth Sixteenth Defendant by Counterclaim : Clayton Utz Seventeenth Defendant by Counterclaim : Taylor & Taylor Lawyers Pty Ltd Eighteenth Defendants by Counterclaim : Taylor & Taylor Lawyers Pty Ltd Case(s) referred to in decision(s):
Andrianakis v Uber Technologies Incorporated [2022] VSC 196
Attorney‑General (NT) v Maurice (1986) 161 CLR 475
AW v Rayney [2010] WASCA 161
AWB Ltd v Cole (2006) 152 FCR 382; (2006) 232 ALR 743
AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234
Balabel v Air India [1988] 1 Ch 317
Brambles Holdings Limited v WMC Engineering Services Proprietary Limited [1995] WAR 239
C H Leaman Investments Pty Ltd v Tuesday Enterprises Pty Ltd as trustee for The Steele Investment Trust [2022] WASC 447
Carey v Korda (2012) 45 WAR 181
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Council of the NSW Bar Association v Archer (2008) 72 NSWLR 236; [2008] NSWCA 164
Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325
DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd (No 3) [2023] WASC 392
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 135 FCR 151; [2003] FCA 1191
Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49; [1999] HCA 67
Field v Commissioner of Railways (NSW) (1957) 99 CLR 285; [1957] HCA 92
Fraser v Fraser [2019] WASC 135
Glengallen Investments Pty Ltd v Arthur Andersen [2022] 1 Qd R 233
GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266
Grant v Downs [1976] HCA 63; (1976) 135 CLR 674
Grocon Group Holdings Pty Limited v Infrastructure NSW (No 3) [2023] NSWSC 1352
Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442; [2017] FCAFC 170
Hancock v Rinehart (Privilege) [2016] NSWSC 12
Hancock v Rinehart (Trust Documents) [2018] NSWSC 1684
Hansfield Developments v Irish Asphalt Ltd [2009] IEHC 420
Harrington v Lowe (1996) 190 CLR 311
Hastie Group Ltd (In Liq) v Moore (t/a Deloitte Touche Tohmatsu) (2016) 339 ALR 635; [2016] NSWCA 305
Inlon Pty Ltd v Celli SpA [2017] NSWSC 569
Insurance Commission of Western Australia v Woodings (No 2) [2017] WASC 371
Insurance Commission of Western Australia v Woodings as Liquidator of Bell Group Ltd (in liq) [2018] WASC 249
Kennedy v Wallace (2004) 142 FCR 185; [2004] FCAFC 337
Kirby v Centro Properties Ltd (No 2) (2012) 87 ACSR 229
Lanco Resources Australia Pty Ltd v Griffin Energy Group Pty Ltd (subject to a deed of company arrangement) (No 3) [2017] WASC 51
Lane v Admedus Regen Pty Ltd [2016] FCA 864
Lanton Productions Pty Ltd v Edward Rushton Pty Ltd (Unreported, FCA, 3 May 1996)
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Marshall v Prescott [2013] NSWCA 152
Mercantile Mutual Insurance (NSW Workers Compensation) Ltd v Murray [2004] NSWCA 151
National Crime Authority v S (1991) 29 FCR 203
Nine Films & Television Pty Ltd v Ninox Television Ltd (2005) 65 IPR 442
Ofulue v Bossert [2009] 1 AC 990
Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11
Perdaman Chemicals & Fertilisers Pty Ltd v Griffin Coal Mining Co Pty Ltd [No 3] [2012] WASC 94
Pihiga Pty Ltd v Roche (2011) 278 ALR 209; [2011] FCA 240
Poland v Hedley [2023] WASCA 69
Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217
Rayney v AW [2009] WASCA 203
Rinehart v Rinehart [2022] NSWCA 66
Roberts-Smith v Fairfax Media Publications Pty Ltd [No 23] (2021) 157 ACSR 438; [2021] FCA 1460
Rodgers v Rodgers (1964) 114 CLR 608
Rush & Tompkins Ltd v Greater London Council [1989] 1 AC 1280
Samnakay v Schofield [2013] WASCA 138
Schreuder v Murray [No 2] (2009) 41 WAR 169; [2009] WASCA 145
TEC Hedland Pty Ltd v Pilbara Infrastructure Pty Ltd (No 2) [2019] WASC 181
TEC Hedland Pty Ltd v Pilbara Infrastructure Pty Ltd [2020] WASC 364
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543
Thomason v The Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347
Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 69
Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244
Unilever Plc v Procter & Gamble Co [1999] 1 WLR 1630
Unilever Plc v Procter & Gamble Co [2000] 1 WLR 2436
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 24] [2023] WASC 393 (S)
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 7] [2016] WASC 305
Yokogawa Australia Pty ltd v Alstom Power Ltd (2009) 262 ALR 738; [2009] SASC 377
Table of Contents
Issues for determination
Preliminary matter
Evidence
Background
Mr Lang Hancock, HPPL, WPPL and DFD Rhodes
Debt Reconstruction
John Disputes
Mr Terry Solomon
Mr Alan Camp
Freehills May 1995 Retainer
Proceedings involving Rose Porteous
Rose Porteous Settlement
Lygren Dispute
Mr Camp's assistance to John
BPC acting for John
John's correspondence and affidavit
2005 Settlement Deeds
Hope Downs Deed
John and Bianca's Federal Court Proceedings and the Martin Arbitration
The curial proceedings
Procedural history relevant to the applications
69 Documents Application
Camp Application
Legal principles
Legal professional privilege
Without prejudice privilege
Onus and evidence in a challenge to privilege pursuant to O 26 r 12(1) of the RSC
Waiver of privilege
Waiver of legal professional privilege
Waiver of without prejudice privilege
Overarching issues for determination
HMH Trust Issue
HRL/HFMF Issue
Waiver by John Correspondence Issue
Waiver by Disclosure Issue
Part Privilege Issue
Individual documents
Camp Application
Waiver by voluntary production in the Martin Arbitration and/or in the curial proceedings
Document 1
Document 2
Documents 3 and 4
Document 5
Document 6
Document 7
Document 8
Document 9
Document 10
Document 11
Document 12
Document 13
69 Documents Application
Documents 1 and 3 to 10
Documents 11 to 14
Document 15
Document 16
Document 17
Document 18
Document 19
Document 20
Documents 23 to 26
Document 28
Documents 30 to 36
Document 37
Documents 38 to 54
Documents 55 to 56
Document 57
Documents 58 to 67
Document 68
Document 69
Document 70
Documents 71 and 72
Document 73
Document 74
Inspection of documents
Conclusion
Annexure A
Annexure B
WHITBY J:
1These reasons deal with two applications made by John Hancock and Bianca Rinehart seeking production of various documents over which Hancock Prospecting Pty Ltd (HPPL) and Ms Georgina Hope Rinehart (Gina) claim privilege. HPPL has also made claims of privilege on behalf of Hancock Resources Limited (HRL) and Hancock Foundation Memorial Fund (HFMF). The applications are made in CIV 3041 of 2010 (WPPL Proceedings) and CIV 2737 of 2013 (Rhodes Proceedings) (together the curial proceedings).
2As has been the practice in the large number of proceedings involving these parties, I will refer to the individuals by their first names with no disrespect intended.
3The first application relates to privilege claims by HPPL and Gina over 13 documents relating to the role of Alan Camp, a former lawyer and employee of HPPL and Gina. The list of the 13 documents is contained in the HPPL's list of documents - Part 1B attached to the affidavit of Kirsty Jayne McPhee affirmed on 17 November 2023 (McPhee November 2023 Affidavit). This list of documents is annexed to these reasons at annexure A.
4HPPL and Gina contend that the 13 documents are either wholly or partly privileged because they were prepared for the dominant purpose of seeking legal advice and/or are without prejudice documents.
5John and Bianca contend that HPPL and/or Gina cannot maintain privilege over any of the 13 documents, either because privilege has not been established or because privilege has been waived. I will refer to this as the Camp Application.
6The second application relates to privilege claims by HPPL, Gina, HRL and/or HFMF over the whole or part of 69 documents contained in HPPL's list of documents - Part 1B attached to the affidavit of Kirsty Jayne McPhee affirmed on 18 January 2024 (McPhee January 2024 Affidavit). HPPL and Gina initially claimed privilege over 74 documents listed in Part 1B to the affidavit of Kirsty Jayne McPhee affirmed on 5 July 2023 (McPhee July 2023 Affidavit) - the document numbers in the 69 documents application still bear numbers 1 to 74, although HPPL and Gina have withdrawn their claim for privilege over five documents, leaving 69 documents over which they claim privilege. The revised list of 69 documents is annexed to these reasons at annexure B.
7By chamber summonses filed on 10 November 2023 in each of the WPPL Proceedings and the Rhodes Proceedings, John and Bianca seek an order, pursuant to O 26 r 9(1) of the Rules of the Supreme Court1971 (WA) (RSC), for production of each of those 69 documents.
8HPPL and Gina contend that the 69 documents are either wholly or partly privileged because they were prepared for the dominant purpose of seeking legal advice, legal advice in relation to ongoing litigation and/or are without prejudice documents.
9John and Bianca contend that HPPL, Gina, HRL and/or HFMF cannot maintain privilege over any of the 69 documents either because privilege has not been established or because privilege has been waived. I will refer to this as the 69 Documents Application.
10For the reasons which follow, I find that:
(1)HPPL and Gina, in accordance with O 26 r 4 of the RSC, have described each of the documents over which they claim privilege with a sufficient statement of the grounds of privilege;
(2)John and Bianca have not adduced sufficient evidence to establish that the claims to privilege are unfounded or mistaken in relation to any of the documents so as to discharge their evidentiary onus pursuant to O 26 r 12 of the RSC;
(3)even if John and Bianca had discharged their evidentiary onus, HPPL and Gina have adduced sufficient evidence to sustain the claim for privilege over each of the documents;
(4)John and Bianca have not discharged their onus of proving, on the balance of probabilities, that either HPPL and/or Gina have waived privilege over any of the documents;
(5)the HFMF and HRL claims for privilege are permitted to be advanced by HPPL and the same findings apply to their claims for legal professional privilege and without prejudice privilege;
(6)it is not necessary to inspect any of the documents over which privilege is claimed; and
(7)the Camp Application and the 69 Documents Application are dismissed.
Issues for determination
11My reasons are divided into the following topics.
12Firstly, to determine the applications, it is necessary to have regard to the relevant background of the disputes between the parties - it is within that context that the documents the subject of privilege claims, must be viewed.
13Secondly, each of the applications requires consideration of the legal principles applicable to legal professional privilege, without prejudice privilege and waiver of privilege. In considering the applicable legal principles, I will address the shifting onus of proof in an application challenging privilege. I will also consider the legal principles which apply to the inspection of documents over which privilege is claimed.
14Thirdly, there are objections that apply to a number of documents the subject of both applications. These objections give rise to the following overarching issues that require determination:
(1)whether certain documents are Hope Margaret Hancock Trust (HMH Trust) documents and if so, whether Gina is entitled to maintain privilege against John and/or Bianca over those documents (HMH Trust Issue);
(2)whether HRL and/or HFMF can claim privilege over certain documents where they have not sought to be heard on the applications (HRL/HFMF Issue);
(3)whether HPPL, Gina, HRL and/or HFMF have waived privilege because of communications sent to John or his legal representatives in 2004 ‑ 2006 (Waiver by John Correspondence Issue);
(4)whether privilege has been waived over a number of documents by reason of disclosure of them between HPPL and other companies within the Hancock Group in circumstances where those parties have adverse interests (Waiver by Disclosure Issue); and
(5)whether, where part privilege has been claimed over redacted portions of documents, privilege has been waived because of the disclosure of the non‑redacted portions of those documents (Part Privilege Issue).
15Fourthly, I will consider each of the applications on a document by document basis. In respect of each document, I will consider where the onus of proof lies and whether it has been discharged.
16Fifthly, I will determine whether, in the context of my consideration of the relevant individual documents, Gina, HPPL, HFMF and/or HRL have waived privilege either by:
(1)voluntarily producing documents in these proceedings and/or in the Martin Arbitration;
(2)disclosing documents to parties with divergent interests, that is sharing documents between Gina and/or HPPL on the one hand and HFMF and/or HRL on the other; and
(3)Gina, or someone on her behalf, engaging in a series of communications between 2003 and 2006 with John, so as to constitute conduct inconsistent with the maintenance of privilege.
17Finally, I will consider whether inspection of documents over which privilege is claimed should be conducted by the court.
Preliminary matter
18There is one preliminary matter that requires clarification. That is whether HPPL and Gina are entitled to rely upon the McPhee January 2024 Affidavit (as opposed to the McPhee July 2023 Affidavit) given that it amended the claim for privilege in relation to a number of documents, including amending the description of a number of documents. Further, in January 2024, HPPL and Gina removed some redactions from a small number of documents over which they had previously claimed privilege. This led to a submission from counsel for John and Bianca that the claims for privilege should be viewed with suspicion given privilege had initially been claimed on a different basis and over more substantial portions of the documents. Counsel for HPPL, in response to these submissions, referred me to the case of the Andrianakis v Uber Technologies Incorporated,[1] in which Matthews AsJ, when presented with a similar situation, said:
I find it unremarkable that upon closer review and in the context of privilege challenges, decisions as to whether certain documents are privileged are reviewed and altered. I also find it unremarkable that, in the context of challenges, parties make decisions to narrow the scope or volume of disputed documents. Rather than criticise parties for that I would observe that it is consistent with the overarching obligations … I would not wish to discourage parties from either re-reviewing their position or altering their privilege claims by too readily accepting the Plaintiffs' submissions that the Defendants' changed position in respect of some documents means that their approach to privilege claims in the first place is somehow suspect. Such an inference may be available where the proportion of changed documents is large or the claims are very inconsistent, but that is not this case.
[1] Andrianakis v Uber Technologies Incorporated [2022] VSC 196 [159].
19I agree with his Honour's observations. The court should encourage a responsible and appropriate approach to claims of privilege, having regard to the parties' obligations to the court. Given the amendment to claims for privilege are not inconsistent or voluminous, the review and amendment of claims for privilege does not lead me to view the claim for privilege by HPPL and Gina as suspect. I find that HPPL and Gina are entitled to rely upon the McPhee January 2024 Affidavit in the 69 Documents Application.
Evidence
20John and Bianca rely upon:
(1)affidavit of Timothy Randolph Price sworn on 15 November 2023 (save for pars 81 to 88, 94 to 96 and 103 to 109 which were not read) (Price 15 November 2023 Affidavit);
(2)affidavit of Timothy Randolph Price sworn on 29 November 2023 (save for pars 29.6 and 35 to 37 which were not read) (Price 29 November 2023 Affidavit);
(3)affidavit of Timothy Randolph Price sworn on 30 January 2024 (save for pars 21.2 to 21.3 which were not read) (First Price January 2024 Affidavit);
(4)affidavit of Timothy Randolph Price sworn on 30 January 2024 (save for pars 18, 20.5, 20.6, 28 and 29 which were not read) (Second Price January 2024 Affidavit);
(5)affidavit of Timothy Randolph Price sworn on 31 January 2024 (Third Price January 2024 Affidavit);
(6)affidavit of Mark Anthony Wilks affirmed 7 April 2021 (Wilks Affidavit)[2]; and
(7)McPhee July 2023 Affidavit.[3]
[2] Exhibit 1.
[3] Exhibit 3.
21HPPL and Gina rely upon:
(1)affidavit of Crispian Paul Lynch sworn on 2 May 2023 (Lynch May 2023 Affidavit);
(2)affidavit of Crispian Paul Lynch sworn on 11 August 2023 (Lynch August 2023 Affidavit);
(3)affidavit of Crispian Paul Lynch sworn on 22 December 2023 (Lynch December 2023 Affidavit);
(4)affidavit of Kirsty Jayne McPhee affirmed on 15 June 2023 (McPhee June 2023 Affidavit);
(5)McPhee November 2023 Affidavit;
(6)McPhee January 2024 Affidavit;
(7)order of Le Miere J dated 14 April 2021[4];
(8)affidavit of David Gordon Anthony sworn on 22 January 2024 (First Anthony Affidavit); and
(9)affidavit of David Gordon Anthony sworn on 30 January 2024 (Second Anthony Affidavit).
[4] Exhibit 2.
Background
22The summary I provide of the background is based upon the submissions of the parties and the various affidavits referred to therein. It therefore represents the positions of the parties, not findings of fact. It should not be taken as giving rise to any finding of fact on these applications or in the curial proceedings (or in any future proceedings). Further, I do not attempt to summarise the extensive history of disputes between the respective parties. That history is too long and complex. Rather, I only intend to summarise the background to the extent it informs and gives context to the documents the subject of the applications. In these reasons, I consider and summarise further relevant background matters when I consider the individual documents the subject of the privilege claims.
Mr Lang Hancock, HPPL, WPPL and DFD Rhodes
23Mr Lang Hancock was the founding director of HPPL. Mr Peter Wright was the founding director of Wright Prospecting Pty Ltd (WPPL). From about 1958, HPPL and WPPL carried on the business of exploring and prospecting for minerals, investing in assets, mining for minerals and receiving royalties in partnership (the Partnership).
24In 1969, the Partnership entered into an agreement with, inter alia, DFD Rhodes Pty Ltd (DFD Rhodes) and its former director, the late Donovan Frances Duncan Rhodes (now represented by his executors Matthew John Keady and Dorothea Margaret Campbell) (together the Rhodes Parties) in relation to temporary reserves including those that would later form part of the Hope Downs Tenements. The Rhodes Parties allege that this agreement granted the Partnership the right to mine iron ore from the temporary reserves in return for the payment of royalties to DFD Rhodes.
25Mr Wright died in September 1985. HPPL became the managing partner of the Partnership.
26In the 1980s Hancock Mining Ltd (HML) and HRL, both subsidiaries of HPPL, were granted exploration licences covering the areas of land that included the Hope Downs Tenements. The shares in HRL and HML were held by HFMF.
Debt Reconstruction
27Lang died on 27 March 1992.
28Gina is the daughter of Lang. Gina's children are John, Bianca, Hope Rinehart Welker and Ginia Hope Frances Rinehart (Gina's children).
29At the time that Lang died, the shareholders of HPPL were:
(1)Gina, as to 51% - of which 33.3% was held in her own right and 17.7% was held under the HMH Trust;
(2)HFMF - as to 33%; and
(3)Gina's children - as to 15.6% under the HMH Trust.
30HFMF was a company limited by guarantee, with members rather than shareholders. The A class member of HFMF was Zamoever Pty Ltd (Zamoever) who controlled 15 out of 20 votes at a general meeting.
31During his lifetime, Lang held the interest in the Zamoever shares. By a deed entered into in March 1992, Lang declared that the shares in Zamoever were held in the HMH Trust.
32HFMF's other major asset, in addition to the HPPL shares, was its shares in HRL.
33By a series of transactions that occurred between 1992 and 1996, the exploration licences were transferred from HRL and HML to HPPL, via Hope Downs Limited (HDL) (another company in the Hancock Group[5]). This series of transactions effected the transfer of the Hope Downs Tenements from HML and HRL to HDL, HPPL and HDIO in return for which HPPL provided funds to, and forgave debts of, HRL and/or HFMF. This is referred to in the curial proceedings as the 'Debt Reconstruction'.
[5] Hancock Group is defined in the Hope Downs Deed at cl 1.1. to mean HPPL and any other 'Related Body Corporate' of HPPL.
34On 24 October 1995, HPPL and HFMF executed the 'Debt Reconstruction Deed'.[6] The Debt Reconstruction Deed:
(1)recited that HFMF had 'substantial liabilities to HPPL (both actual and contingent) arising as a result of' certain liabilities (recital B). Those liabilities were identified by reference to the loan from HPPL to HFMF in August 1994, the secured guarantee provided in the HFMF Deed of Charge, a loss suffered by HPPL through the sale of HML to BHP Minerals Ltd (BHP), and the purported transfer of shares in HRL to HFMF in 1990;
(2)recited that, as at the date of the deed, HFMF's liabilities exceeded its assets and HFMF was unable to discharge the liabilities referred to above (recital C);
(3)defined the amounts owing by HFMF to HPPL in connection with those liabilities as the 'HFMF Indebtedness' (cl 1.1);
(4)provided that HPPL agreed to accept $19,000,000 in full and final settlement of the HFMF's Indebtedness, to leave that amount outstanding as loans to HFMF, and to provide a working capital loan facility to HFMF, on and subject to the terms and conditions of the deed (see recitals D ‑ E, cl 2A ‑ 4); and
(5)was subject to the fulfilment of various conditions which contemplated a series of transactions (cl 2.1).
[6] First Anthony Affidavit [82]; annexure DGA‑114.
35The transactions contemplated by the Debt Reconstruction Deed included:
(1)the completion of a buy‑back by HPPL of HFMF's shares in HPPL for $9,300,000 (cl 2.1(e)). This amount was arrived at by averaging the amounts of $7.8 million and $10.8 million, which was the range of values given to HFMF's shares in HPPL by a valuation prepared by Coopers & Lybrand;
(2)the entry by HFMF and HPPL into a deed of acknowledgment simultaneously with the execution of the Debt Reconstruction Deed (cl 2.1(g)). On 24 October 1995, HFMF and HPPL entered into the 'Deed of Acknowledgment and Release'.[7] By this deed, HFMF and HPPL acknowledged that transfers of shares in HML and HRL from HPPL to HFMF were legally ineffective, that shares in HML were issued to HFMF on trust for HPPL, and that shares in HRL were beneficially held by HPPL (cl 2.1 ‑ cl 2.2). HFMF, HPPL and HRL also agreed to do all things as were necessary to record the absolute ownership of all the shares in HRL by HPPL (cl 2.3). On 23 November 1995, HFMF and HPPL executed a share transfer form in relation to the HRL shares;[8] and
(3)the admission of HMHT Investments Pty Ltd (HMHTI) as a class A member of HFMF in full and final settlement of claims against HFMF by Gina in accordance with a deed of release (cl 2.1(f)). On 24 October 1995, Gina and HFMF executed the 'Deed of Release and Discharge'.[9] By this deed, Gina (in her own capacity and as trustee of the HMH Trust) released and discharged HFMF in consideration of the admission of HMHTI as an A class member of HFMF (cl 1).
[7] First Anthony Affidavit [85]; annexure DGA‑118.
[8] First Anthony Affidavit [66(b)]; annexure DGA‑85.
[9] First Anthony Affidavit [87]; annexure DGA‑121.
John Disputes
36Between 2003 and 2007, John made various allegations concerning alleged wrongdoing by Gina and HPPL. These allegations gave rise to a number of disputes between John, on the one hand, and HPPL and Gina (amongst others), on the other hand (the John Disputes).
37The John Disputes involve various trusts - the HMH Trust, the Zamoever Trust and the Hancock Foundation Memorial Fund Trust (HFMF Trust). It is necessary to understand the difference (or not) between these trusts.
38The HMH Trust holds shares in HPPL and the income from those shares on trust for the benefit, upon Lang's death, of Gina's children. Gina was the trustee of the HMH Trust from 27 March 1992 to 28 May 2015, at which time Gina resigned and was replaced by Bianca as trustee.
39The Zamoever Trust and the HFMF Trust are essentially references to the same trust and the terms are used interchangeably. Gina and the HPPL Parties dispute the existences of the HFMF Trust.
40John (and later, Bianca) allege that:
(1)Lang and Gina agreed to create a trust in June 1988 - this is referred to as the 1988 plan;
(2)Zamoever, a shelf company was the controlling member in HFMF;
(3)HFMF held a legal title to certain exploration and mining related assets, including the Hope Downs Tenements and shares in HPPL (separate to those held by the HMH Trust);
(4)the shares in Zamoever were held in the HFMF Trust;
(5)Gina was the trustee of the HFMF Trust in the 1990s; and
(6)Gina, as trustee of the HFMF Trust, misappropriated the assets of the HFMF Trust into HPPL, through the Debt Reconstruction.
41Starting in 2004, John also made allegations that Gina had misconducted herself in the administration of the HMH Trust.
Mr Terry Solomon
42Mr Solomon was a solicitor and from September 2003 to March 2007, was the General Counsel and Chief Corporate Counsel of HPPL. Mr Solomon negotiated with John and his counsel, Mr Robert Butcher, in relation to the John Disputes.
43The HPPL Parties and Gina say that Mr Solomon commissioned and instructed on legal advice obtained from other practitioners during the period he was employed by HPPL.
44Mr Solomon died in August 2010.
Mr Alan Camp
45Mr Camp was a friend of Gina's and a lawyer at various times for HPPL and entities associated with HPPL. Mr Camp was an employee of HPPL until 1 December 1994 and then a consultant for HPPL from 2 December 1994.
46Mr Camp was the company secretary of HPPL from 1 May 1992 until 1 December 1994, a secretary of Zamoever and HFMF from April 1992 to December 1994 and a director of HRL from October 1992 to July 1993 and July to December 1994.
47Mr Camp signed confidentiality agreements with the companies in the Hancock Group, including HPPL, HRL and HFMF.
48The HPPL Parties and Gina allege that Mr Camp maintained an archive of documents from his time as an employee or consultant of HPPL.
Freehills May 1995 Retainer
49On 23 May 1995, Freehills were retained to advise Gina, in her capacity as trustee of the HMH Trust in relation to '(a) matters arising in connection with the estate and affairs of your late father, Mr LG Hancock and the companies which he founded [including HPPL, HFMF, HFMF's subsidiaries HML and HRL and Zamoever] and (b) the affairs of the Trusts, which will raise issues in relation to the transactions in which those entities engaged and the will of your late father' (Freehills May 1995 Retainer).[10]
[10] Price 15 November Affidavit [20.4]; annexure TRP27.
Proceedings involving Rose Porteous
50Between 1992 and 1994, various proceedings were commenced in the Supreme Court of Western Australia against Lang's former wife, Mrs Rose Porteous and/or entities associated with her seeking declarations that property acquired by her or such companies during Lang's lifetime was held on constructive trust. Those proceedings included the following:
(1)HFMF commenced CIV 1686 of 1992 against Belle Rosa Holdings Pty Ltd (Belle Rosa) and Commonwealth Bank of Australia in relation to the property in Owston Street, Mosman Park. Solomon Brothers initially acted for HFMF, and then were replaced in November 1993 by Atkins & Co;
(2)HPPL commenced CIV 1505 of 1993 against Belle Rosa and Rose Porteous in relation to an office building in Nedlands, known as Milgraum House. Atkins & Co originally acted for HPPL and were replaced by Blake Dawson Waldron (BDW) in February 1994;
(3)HFMF commenced CIV 2904 of 1993 against Johanna Lacson Nominees Pty Ltd relating to a property in Florida. Atkins & Co acted for HFMF;
(4)CIV 1338 of 1994 commenced by HPPL against Rose Porteous related to a property in Bentley. Atkins & Co originally acted for HPPL and were replaced by BDW in February 1995;
(5)HPPL commenced CIV 1339 of 1994 against Rose Porteous relating to properties in Double Bay. Atkins & Co originally acted for HPPL and were replaced by BDW in February 1995; and
(6)HFMF and HPPL commenced CIV 2119 of 1994 against Rose Porteous and her daughter, Johanna Lacson, in relation to properties in Mosman Park known as 'Prix d'Amour'. Atkins & Co originally acted for HPPL and were replaced by BDW in February 1995.
51The defences in these proceedings alleged, inter alia, that loans to Rose Porteous were repaid by setting off the purchase price for HFMF's acquisition of Lang's one third shareholding and life governor's share in HPPL.
52In July 1996, Rose Porteous commenced CIV 1716 of 1996 against Gina, Mr Schwab, HFMF, HPPL and HMHTI in relation to allegations by Rose Porteous that the Debt Reconstruction was a conspiracy to injure her and that Gina, as trustee of the HMH Trust, had taken steps, as part of the Debt Reconstruction, to have HMHTI admitted as the A‑class member of HFMF, thereby taking control of HFMF away from Zamoever, which was the company that Rose Porteous alleged she had an interest in under Lang's will. Freehills acted for Gina, Mr Schwab, HFMF, HPPL and HMHTI. At this time, Gina was a director and sole shareholder (as trustee of the HMH Trust) of HMHTI.
Rose Porteous Settlement
53In August and September 2003, Mr Solomon, in‑house legal counsel for HPPL, and Gina negotiated with John to sign a deed of settlement with Rose Porteous. John sought consideration from Gina for signing this deed.[11]
[11] Lynch December 2023 Affidavit [49]; annexures CPL‑24 ‑ CPL‑26.
54On 12 September 2003, John signed the deed of settlement.
55The HPPL Parties and Gina allege that, after John signed the deed, he continued to raise disputes with Gina and HPPL about matters including John's employment, Gina's financial support for John and Gina's management of HPPL.
Lygren Dispute
56On 11 December 1987, HML executed a contract of affreightment with IMR Transport Corp (IMR) to ship iron ore for sale to a Romanian Foreign Trade Company (Contract of Affreightment). The agreement was signed by Alte Lygren for and on behalf of IMR.[12]
[12] First Anthony Affidavit [19]; annexure DGA‑16.
57On 19 February 1992, HFMF agreed to sell its shares in HML to BHP under a 'Share Purchase Deed'.[13] By the deed, HFMF granted an indemnity to BHP in respect of any liability of HML to IMR under the Contract of Affreightment.
[13] First Anthony Affidavit [32]; annexure DGA‑46.
58On 1 April 1992, HML executed a 'Deed of Assignment and Indemnity' as to the Contract of Affreightment. By this deed, HRL granted an indemnity to HML in respect of any liability to IMR under the Contract of Affreightment.[14]
[14] First Anthony Affidavit [33]; annexure DGA‑47.
59On 31 July 1992, Cocks Macnish, as solicitors for HML (by then renamed BHP Iron Ore (Jimblebar) Pty Ltd), notified IMR that HML considered the Contract of Affreightment was frustrated due to turmoil in Romania.[15]
[15] First Anthony Affidavit [42]; annexure DGA‑56.
60On the same day, Sinclair Roche & Temperley, solicitors for IMR, responded to Cocks Macnish stating that unless the allegations were retracted, they would propose arbitrators to resolve the matter.[16]
[16] First Anthony Affidavit [42]; annexure DGA‑57.
61The dispute was referred to arbitration. On 3 March 1994, the arbitral tribunal issued an interim award declaring that HML was liable to IMR in damages for HML's unjustified repudiation of the contract, the quantum of such damages to be fixed by a final award.
62HRL was required to indemnify HFMF, and HFMF was required to indemnify BHP, in respect of any liability to IMR under the Contract of Affreightment. As at 30 June 1994, HRL had current assets of $3,333,105 and current liabilities of $48,123,956, including a loan from HPPL of $30,719,796.[17] As at 30 June 1994, HFMF had current assets of $208,614 and current liabilities of $33,062,557 including a loan from HPPL of $1,353,192.[18]
[17] First Anthony Affidavit [45]; annexure DGA‑60.
[18] First Anthony Affidavit [45]; annexure DGA-61.
Mr Camp's assistance to John
63The HPPL Parties and Gina allege that from September 2003, Mr Camp began covertly assisting John to agitate his disputes with Gina and HPPL, including assisting John in his dealings with Butcher Paull & Calder (BPC) and Mr Robert Butcher from BPC.
64John and Bianca say that Gina and HPPL were paying Mr Camp to mentor John, that the HMH Trust was paying for those mentoring services and that, as a result, Mr Camp was not providing John with unrestricted access to documents and knowledge that was available to him.
BPC acting for John
65In late 2003 or early 2004, BPC was acting for John in relation to his potential claims against Gina and HPPL, including claims that Gina had acted in breach of the HFMF Trust.
66The HPPL Parties and Gina say that Mr Solomon acted for each of them in relation to negotiations with BPC by sending letters to BPC which disputed the allegations made by John through BPC and responded to proposed offers to compromise the dispute.
John's correspondence and affidavit
67In May 2004, John sent an email to Bianca, including a draft affidavit which detailed claims that John alleged against Gina and HPPL.
68The HPPL Parties and Gina allege, that from May 2004, John worked on the draft affidavit with Mr Camp's and BPC's assistance.
69On 14 July 2004, John emailed Gina and alleged that she was mismanaging HPPL.
70From August to October 2004, John and Gina exchanged emails in relation to John's complaints about Gina's management of HPPL.
71On 27 October 2004, BPC sent a letter to HPPL enclosing a copy of John's draft affidavit which set out the following claims that he had against HPPL and Gina:
(1)John alleged that Gina had breached her duties as trustee of the HFMF Trust by divesting assets from the HFMF Trust to her benefit. These assets included HFMF's shareholding in HPPL and the Hope Downs Tenements;
(2)John believed it was Lang's intention that Gina would hold one third of the shareholding in HPPL (which Lang gifted to the HFMF Trust in 1988) and the shares in Zameover in trust for Gina's children; and
(3)John set out the facts surrounding the Debt Reconstruction and alleged breaches of the HFMF Trust flowing from the Debt Reconstruction;
72The HPPL Parties and Gina say that Mr Camp assisted John in drafting this affidavit.
73Mr Solomon sent correspondence to BPC which disputed John's allegations regarding the Debt Reconstruction.
2005 Settlement Deeds
74From November 2004 to early 2005, Mr Butcher of BPC, Mr Solomon, John, Gina and HPPL engaged in settlement discussions in an attempt to resolve the John Disputes.
75These settlement discussions resulted in John entering into settlement deeds in which he released his claims against, amongst others, Gina, HPPL, and HFMF. The following parties executed a 'Confidential Deed of Obligation and Release' and a 'Deed of Loan' (together the 2005 Settlement Deeds):
(1)HPPL;
(2)HFMF;
(3)Gina, in her capacity as director and officer of HPPL, as former trustee of the HMH Trust, as executor of the estate of Lang Hancock, and in her personal capacity;
(4)Bianca, in her capacity as director and officer of HPPL, as beneficiary of the HMH Trust and in her personal capacity;
(5)Hope, in her capacity as beneficiary of the HMH Trust and in her personal capacity;
(6)Ginia, in her capacity as beneficiary of the HMH Trust and in her personal capacity;
(7)Tad Watroba, as director and officer of HPPL; and
(8)Gary Schwab, as executor of the estate of Lang Hancock.
Hope Downs Deed
76Following the 2005 Settlement Deeds, disputes between Gina, HPPL and John continued to arise, including whether the 2005 Settlement Deeds were binding.
77The HPPL Parties and Gina say that Mr Camp continued to assist John to agitate claims against Gina and HPPL, including in relation to the Debt Reconstruction.
78This resulted in further negotiations between Gina and her children between which, in August 2006, culminated in a number of parties entering into a deed, referred to in the curial proceedings as the Hope Downs Deed, by which they agreed to settle disputes about the title to the Hope Downs Tenements. The parties to the Hope Downs Deed include HPPL, Gina, HFMF, Bianca, Ginia and Hope. John adopted the Hope Downs Deed in April 2007.
John and Bianca's Federal Court Proceedings and the Martin Arbitration
79Since entering into, or in John's case agreeing to be bound by, the Hope Downs Deed, John and Bianca have sought to bring claims in a number of Australian courts impugning the conduct of Gina, HPPL and others. The claims include claims concerning the ownership of the Hope Downs Tenements and the alleged misconduct of Gina and HPPL in relation to the ownership thereof (this includes the Debt Reconstruction) and claims concerning the validity of the Hope Downs Deed.
80In 2014, John and Bianca commenced proceedings in the Federal Court of Australia against, inter alia, the HPPL Parties and Gina. As part of the Federal Court proceedings, John and Bianca claimed that the Hope Downs Tenements were held on trust for Gina's children and challenged the validity of the Hope Downs Deed.
81The Full Court of the Federal Court ordered that the Federal Court proceedings be stayed under s 8(1) of the Commercial Arbitration Act 2012 (NSW) pending referral to arbitration or until further order.[19]
[19] Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442; [2017] FCAFC 170 [336] (Full Federal Court Decision).
82The Federal Court proceedings were referred to arbitral proceedings constituted before the Honourable Wayne Martin AC KC, Dr Michael Hwang SC and the Honourable Dr Kevin Lindgren AM KC (Martin Arbitration). The Martin Arbitration occurred in three blocks of time between August 2022 and March 2023. The decision in the Martin Arbitration is reserved.
83[redacted]:[20]
[redacted].
[20] [redacted].
The curial proceedings
84In the WPPL Proceedings, WPPL says that HPPL represented to WPPL and acknowledged that the opportunity to explore for minerals and acquire mining leases in the Hope Downs Tenements belonged to the Partnership. WPPL says that the rights acquired by HML and HRL in respect of the exploration licences were rights to which the Partnership was and remains entitled. As a result, WPPL says that Hope Downs Iron Ore Pty Ltd (HDIO)[21] holds its interest in the Hope Downs Tenements on trust for the Partnership.
[21] HPPL and HDIO are collectively referred to as the HPPL Parties in the curial proceedings.
85The Rhodes Parties also say that the opportunity to exploit the Hope Downs Tenements was a right that belonged to the Partnership. The Rhodes Parties say that HPPL and WPPL owed them fiduciary and contractual duties and seeks an order that, inter alia, the Hope Downs Tenements are held on trust for the Rhodes Parties to the extent of their royalty entitlements.
86Each of WPPL, the Rhodes Parties and the HPPL Parties say that HML and HRL held the Hope Downs Tenements on trust for HPPL. The dispute between those parties is whether that beneficial interest of HPPL was an asset of the Partnership - WPPL and the Rhodes Parties say it was, the HPPL Parties say it was not.
87In 2016, Le Miere J made an order in each of the curial proceedings that Gina's children be joined as defendants on the basis that their asserted proprietary interest in the Hope Downs Tenements was inconsistent with the interests claimed in the Hope Downs Tenements by not only Gina and the HPPL Parties, but also those claimed by WPPL and the Rhodes Parties. Le Miere J held that the joinder of Gina's children to the curial proceedings was necessary to ensure all matters in dispute could be completely determined.[22] The result is that the HPPL Parties, Gina's children and WPPL are defendants in the Rhodes Proceedings and that the HPPL Parties and Gina's children are defendants in the WPPL Proceedings.
[22] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 7] [2016] WASC 305.
88Relevant to the Camp Application is [3.5.3] of the Rhodes Parties' amended reply, by which the Rhodes Parties plead that the Hope Downs Tenements are not held on constructive trust for John and Bianca (and/or Gina's children) because John and Bianca (and/or Gina's children) have been guilty of laches and acquiescence.
Procedural history relevant to the applications
89Before I summarise the procedural history of each of the applications, I make some general observations about the nature of the applications.
90For each document or group of documents, John and Bianca assert multiple grounds as to why their evidentiary onus is discharged, multiple grounds as to why the claim for privilege cannot be sustained and multiple grounds on which waiver of privilege is alleged to have occurred. The hearing of the applications occurred over six days. The court book for the hearing comprised just over 6,000 pages. The parties referred to approximately 160 authorities. To say that the resources dedicated to these privilege applications was grossly disproportionate to the issues in dispute is an understatement.
91The applications were also made against the backdrop of this court previously ordering a stay of a challenge by John and Bianca to privilege over the documents the subject of the 69 Documents Application on the basis of an iniquity exception. The hearing of that issue occurred over three days with a court book comprised of over 5,500 pages.
69 Documents Application
92HPPL and Gina claimed privilege over the documents the subject of the 69 Documents Application in the curial proceedings. The relevance of the documents, or parts thereof, over which privilege is claimed is said to be because (all but two documents, being documents 71 and 72) relate to either the transfer of the Hope Downs Tenements from HRL to HDL and then HPPL after 27 March 1992, or to the transactions leading up to and including the Debt Reconstruction as described in John and Bianca's defence in each of the curial proceedings.
93John and Bianca challenged the claims of the privilege on various grounds. By chamber summons dated 29 August 2023 and chambers summons dated 27 July 2023, HPPL and Gina applied for orders that John and Bianca's challenge to the privilege claims, to the extent that the challenge required a determination of the iniquity exception to privilege, be referred to arbitration and stayed, alternatively, that the challenge be stayed in the inherent jurisdiction of the court.
94I determined that the privilege challenge, so far as it sought to invoke the iniquity exception, should be stayed and referred to arbitration pursuant to s 8(1) of the Commercial Arbitration Act2012 (WA).[23]
[23] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 24] [2023] WASC 393 (S) (WPPL v HPPL [No 24]).
95The remaining challenges by John and Bianca to privilege claimed by HPPL and Gina were made on the following grounds:
(1)whether HPPL and/or Gina have established proper grounds for their claim of legal professional privilege;
(2)whether HPPL and/or Gina have established proper grounds for their claims of without prejudice privilege;
(3)whether HPPL and/or Gina have waived privilege as a result of sharing privileged documents (on the assumption they are privileged); and
(4)whether HPPL and/or Gina have claimed part privilege in the proper way.[24]
[24] WPPL v HPPL [No 24] [15].
96Despite John and Bianca's original challenge to privilege being contained to these grounds (to the extent it was not stayed), they now challenge the privilege claimed by HPPL and Gina on a number of additional grounds - it is accurate to describe the grounds as having 'exploded'.
Camp Application
97In the Camp Application, John and Bianca challenge privilege over 13 documents which were ordered, by consent, to be discovered by the HPPL Parties, in lieu of production under a notice to produce issued by John and Bianca on 12 October 2023. The notice to produce sought production of documents recording or referring to:
(1)any contract, arrangement or understanding between Gina or HPPL and Mr Camp in relation to the subject matter of these proceedings including but not limited to the 2005 Settlement Deeds;
(2)any payment, proposed payment or offer of payment by Gina (or any related entity) or HPPL (or any related entity) to Mr Camp (or any related entity) in connection with the 2005 Settlement Deeds; and
(3)communications or any documents between Gina (or any representative, including Terry Solomon) or HPPL (or any representative, including Terry Solomon) and Mr Camp referring to the 2005 Settlement Deeds, the payment, proposed payment, or offer to pay any money, in the period 1 January 2005 to 30 June 2007 (inclusive), to Mr Camp.
98John and Bianca contend that the categories of documents sought in the notice to produce relate to the laches case advanced by the Rhodes Parties in [3.5.3] of their reply whereby the Rhodes Parties plead that John was not in a position of disadvantage vis‑à‑vis HPPL because he was being aided by Mr Camp and that, therefore, it was inequitable for John not to have commenced proceedings at an earlier time.
99In their defence to the plea of laches, John and Bianca say that Gina and HPPL were paying Mr Camp to mentor John, that the HMH Trust was paying for those mentoring services and that, as a result, Mr Camp would not have been providing John with unrestricted access to the documents and the knowledge that was available to Mr Camp.
100The procedural history to the production of these documents is as follows:
(1)on 13 November 2023, following without prejudice conferral, the solicitors for HPPL sent an open email to the solicitors of all parties to the curial proceedings which said:[25]
We refer to the notice to produce issued by Bianca and John on 12 October 2023.
The HPPL parties produce the attached documents in response to the notice to produce. The HPPL parties are currently obtaining instructions in relation to a further small number of documents and will produce any further responsive documents shortly.
(2)the documents attached to the 13 November 2023 email were eight of the 13 Camp documents; and
(3)the legal representatives for Gina were not included on the 13 November 2023 email - whether Gina was aware of the disclosure of the documents is a matter of dispute between the parties.
[25] Price 29 November 2023 Affidavit [12]; annexure TRP3.
101John and Bianca say that Gina and/or her agents were aware of and did not object to the production of the eight documents. Mr Price deposes that:[26]
[26] Price 29 November 2023 Affidavit [15].
(1)Gina's legal representatives were involved in the conferral and aware of HPPL's intention to produce the documents by 2 November 2023 at the latest;
(2)Gina is the executive chairman of HPPL and is closely involved in the conduct of these proceedings, either directly or through her representatives Jay Newby and/or Brad Ross;
(3)none of the legal representatives for Gina in these proceedings have asserted that Gina did not know or was not involved in giving instructions directly or through her agents for the production of the documents. At the hearing before Smith J on 16 November 2023, Mr Alan Shearer of counsel appeared for Gina and made a submission that 'we were only recently informed of a list of 13 documents proposed for production in answer to the notice to produce, and we understand that that list of 13 was generated following some conferral between John and Bianca and HPPL. In those circumstances, we have identified relatively promptly that we make privilege claims in respect of all 13 documents';[27]
[27] Price 29 November 2023 Affidavit; annexure TRP2.
(4)in both the curial proceedings and the Martin Arbitration, the legal teams for HPPL and Gina work extremely closely and overlap;
(5)Gina did not raise any objection or foreshadow any claim for privilege over the documents attached to the 13 November 2023 email;
(6)on 16 November 2023 at 9.55 am, Corrs sent an email to the Associate to Smith J, which was copied to the parties, stating:[28]
The HPPL Parties intend to take issue with a number of the documents annexed to Mr Price's affidavit, including potentially making privilege claims in relation to those documents. We respectfully request that her Honour defer reviewing or considering the affidavit until counsel for the HPPL Parties has an opportunity to make submissions at this afternoon's hearing regarding whether her Honour should receive the affidavit.
(7)on 16 November 2023 at 11.55 am, Corrs sent an email to the parties, referring to the 13 November 2023 email, and stating, inter alia:[29]
Furthermore, the HPPL Parties have been informed that Mrs Gina Rinehart wishes to claim without prejudice privilege in relation to the Eight Documents. The HPPL Parties also wish to make a without privilege claim in relation to the Eight Documents.
In addition, with regards to the balance of the documents referred to in our email of 13 November 2023, being the five documents which have not been produced (Five Documents), we are instructed that the HPPL Parties and Mrs Rinehart intend to make joint claims for legal professional privilege and without prejudice privilege in relation to the Five Documents.
[28] Price 29 November 2023 Affidavit; annexure TRP4.
[29] Price 29 November 2023 Affidavit; annexure TRP5.
102On 16 November 2023, Smith J conducted a directions hearing. Senior counsel for HPPL submitted that the notice to produce was defective because it had been issued irregularly and that DFD Rhodes and HPPL had agreed that discovery of the documents was the appropriate way to proceed. Smith J determined that the notice to produce was not supported by O 30 r 5 of the RSC and made an order for discovery of the documents.
103Pursuant to that order, on 17 November 2023, HPPL filed and served the McPhee November 2023 Affidavit. Of the 13 documents discovered, privilege was claimed by HPPL and Gina over eight documents entirely and four documents were described as part‑privileged.
Legal principles
104John and Bianca's applications are made pursuant to O 26 r 9 of the RSC which entitles the court, on an application by a party, to make an order for inspection of documents.
105Where such an application is made, O 26 r 12 of the RSC provides:
12 Claim of privilege
(1)Where -
(a)on an application for production of a document for inspection or to the Court; or
(b)in any list of documents supplied on discovery,
a party claims privilege the party requiring production or discovery may traverse the claims to privilege by adducing evidence either that the claim to privilege is unfounded or mistaken, but in the absence of any evidence to that effect the claim to privilege shall be sustained.
(2)In determining any objection on the ground of privilege to the production or discovery of any document or class of document the Court may inspect the document.
106In each of the applications, HPPL, Gina, HFMF and/or HRL claim legal professional privilege and/or without prejudice privilege over the documents.
Legal professional privilege
107Legal professional privilege is a rule of substantive law. A party may claim legal professional privilege in order to resist the disclosure of information or documents which reveal communications between the party and his or her lawyer provided those communications are confidential and were made for the dominant purpose of either giving or obtaining legal advice or for the dominant purpose of preparing for litigation on foot or within the reasonable contemplation of the party.[30] There are two categories of legal professional privilege - legal advice privilege and litigation privilege. HPPL and Gina claim both categories of legal professional privilege in relation to individual documents in each of the applications.
[30] Schreuder v Murray [No 2] (2009) 41 WAR 169; [2009] WASCA 145 [59]; Rayney v AW [2009] WASCA 203 (Rayney) [27] citing The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 [9]; Attorney‑General (NT) v Maurice (1986) 161 CLR 475, 490.
108Legal professional privilege attaches to communications. Legal professional privilege will cover documents or parts of documents which reproduce or reveal privileged communications.[31] In order to ascertain whether a document is covered by legal professional privilege, the disclosure of the document must directly reveal, or allow the viewer of the document to infer, the actual content or substance of the privileged communication.[32] In order to draw such an inference, it must be a reasonable and definite one available from the contents of the document - it is not enough if the contents of the documents would merely cause the reader to speculate whether legal advice has been obtained and what was the substance of that advice.[33] A document which merely contains a reference to legal advice but does not disclose the substance of that advice is not privileged.[34]
[31] Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 (Dalleagles), 333 ‑ 334 (Anderson J); Carey v Korda (2012) 45 WAR 181 [61] (Murphy JA, Martin CJ & Newnes JA agreeing); Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (Propend), 569 (Gummow J).
[32] AWB Ltd v Cole (2006) 152 FCR 382; (2006) 232 ALR 743 [132] (Young J); Carey v Korda [62] (Murphy JA, Martin CJ & Newnes JA agreeing).
[33] AWB Ltd v Cole [133] (Young J); Carey v Korda [62] (Murphy JA; Martin CJ & Newnes JA agreeing); AW v Rayney [2010] WASCA 161 [237] (Buss JA).
[34] Grocon Group Holdings Pty Limited v Infrastructure NSW (No 3) [2023] NSWSC 1352 [42] (Ball J).
109In considering whether confidential communication or documents have been made for the dominant purpose of giving or receiving legal advice, regard must be had to the policy underpinning the scope and purpose of advice privilege. In Balabel v Air India,[35] Parker LJ (with whom Lord Donaldson of Lymington agreed) expressed that policy in the following terms:
… [T]he purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence. In my judgment, therefore, the test is whether the communication or other document was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly. Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and client. The negotiations for a lease such as occurred in the present case are only one example. Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as 'please advise me what I should do'. But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.
[35] Balabel v Air India [1988] 1 Ch 317 (Balabel), 330.
110In Dalleagles, Anderson J considered the policy underpinning advice privilege in rejecting a submission that privilege would not attach to a communication unless expressed as legal advice or as a request for legal advice and stated:[36]
… I think it is the case that whenever a lay client gives instructions to a legal practitioner to perform specialist legal services involving the exercise of professional skill, there is imposed on the solicitor a duty to give any advice reasonably necessary to protect the client's interests in the transaction whether expressly requested or not. ... It is not a large step from that position to say that whenever a client gives instructions to his solicitor there is assumed to be a request for advice. In my opinion, discourse between solicitor and client with reference to the transactions covered by those instructions, that is, professional discourse in a professional capacity, should be regarded as prima facie for the purpose of giving and receiving advice. This would apply to any communication that is on its face a communication of a professional nature from the solicitor to the client or his agent touching the subject matter of the solicitor's engagement and any communication from the client to the solicitor in connection with that engagement. Only if the rule is applied in that way can the policy of it be carried out and its object practically fulfilled. (emphasis added)
[36] Dalleagles (332 ‑ 333).
111In DSE (Holdings) Pty Ltd v Intertan Inc,[37] Allsop J expressly followed the approach adopted in Balabel and Dalleagles. As to those cases, his Honour said:[38]
What underlies the expression of opinion in both cases is the recognition that the obligation of the lawyer to advise, once retained, is pervasive. It would be rare that one could, with any degree of confidence, say that a communication between client (or agent) and lawyer, in the circumstances of a retainer requiring legal advice and the directing of the client by a legal adviser, was not connected with the provision or requesting of legal advice. For the reasons given by Taylor LJ in Balabel, … and Anderson J in Dalleagles, too literal a requirement of identifying legal advice as express advice about the law would place undue emphasis on formalism and undermine the privilege.
[37] DSE (Holdings) Pty Ltd v Intertan Inc (2003) 135 FCR 151; [2003] FCA 1191 (DSE) [25] ‑ [71].
[38] DSE [52].
112Accordingly, consistent with these authorities, a broad view of the concept of legal advice must be taken - although legal advice does not include advice that is purely commercial or of a public relations nature, it does extend to professional advice as to what a party ought to sensibly do in the relevant legal context.[39]
[39] AWB Ltd v Cole [85] ‑ [100]; AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234 [44(7)].
113In adopting this broad view, advice privilege has been held to apply to the following material:
(1)material prepared by a client for the dominant purpose of communication to his or her legal adviser even if the communication has not yet occurred, and even if the material is not ultimately communicated to the legal adviser;[40]
(2)any document prepared by a legal adviser or client which may allow a party to infer the nature of the advice sought or given. This includes communications between legal advisers of the client, draft pleadings, draft correspondence with the client or the other party, and bills of costs.[41] Advice privilege extends to internal documents or parts of documents of the client, or of the legal adviser which reproduce or reveal privileged communications;[42]
(3)copies of non‑privileged documents if the purpose of bringing the copy into existence is for the dominant purpose of giving or receiving legal advice;
(4)documents that record legal work carried out by the lawyer (such as research and file notes) for the benefit of the client whether or not they are, or are intended to be, provided to the client;[43]
(5)professional advice as to what a party should prudently or sensibly do in a relevant legal context;[44] and
(6)documents created for the purposes of providing legal assistance, including the preparation of draft agreements and observations with respect to the terms of agreements which have been entered into or are under contemplation.[45]
[40] Rayney [18], citing Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 690.
[41] Propend (569); see also Kirby v Centro Properties Ltd (No 2) (2012) 87 ACSR 229 [32]; Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217 [20], [88].
[42] AWB Ltd v Cole (No 5) [46].
[43] Rayney [20], citing Propend (550); Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244, 245 ‑ 246; Dalleagles (333 ‑ 334).
[44] DSE [21] - [22], citing Balabel (330).
[45] Perdaman Chemicals & Fertilisers Pty Ltd v Griffin Coal Mining Co Pty Ltd [No 3] [2012] WASC 94 [5].
114In order to claim legal professional privilege, a communication or document must be confidential. This is because the object of legal professional privilege is to protect the confidentiality of legal advice or communications made for the purpose of litigation.[46]
[46] Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 [28].
Without prejudice privilege
115A widely cited description of without prejudice privilege is contained in the case of Field v Commissioner of Railways (NSW):[47]
As a matter of policy the law has long excluded from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation. The purpose is to enable parties engaged in an attempt to compromise litigation to communicate with one another freely and without the embarrassment which the liability of their communications to be put in evidence subsequently might impose upon them. The law relieves them of this embarrassment so that their negotiations to avoid litigation or to settle it may go on unhampered. This form of privilege, however, is directed against the admission in evidence of express or implied admissions. It covers admissions by words or conduct. For example, neither party can use the readiness of the other to negotiate as an implied admission. It is not concerned with objective facts which may be ascertained during the course of negotiations. These may be proved by direct evidence. But it is concerned with the use of the negotiations or what is said in the course of them as evidence by way of admission.
[47] Field v Commissioner of Railways (NSW) (1957) 99 CLR 285; [1957] HCA 92, 291 ‑ 292.
116This passage has generated much judicial discussion about whether without prejudice is confined to protect only express or implied admissions.[48]
[48] Yokogawa Australia Pty ltd v Alstom Power Ltd (2009) 262 ALR 738; [2009] SASC 377 (Yokogawa) [97] ‑ [105].
117In John and Bianca's outline of written submissions, they contend that the essential prerequisites for the operation of without prejudice privilege are:
(1)a genuine attempt to reach a settlement of a dispute the subject of litigation or which will become so if the dispute is not resolved; and
(2)the making of an express or implied admission in so doing. The rule then operates to prevent the use of such admissions in subsequent litigation.[49]
[49] John and Bianca's Outline of Submissions in the Camp Application dated 29 November 2023 [15] relying on the cases of Glengallen Investments Pty Ltd v Arthur Andersen [2022] 1 Qd R 233 [28], quoted in Insurance Commission of Western Australia v Woodings (No 2) [2017] WASC 371 [52], Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 69, 70 ‑ 73, Field v Commissioner of Railways (291 ‑ 292).
118In oral submissions, counsel for John and Bianca clarified that it is not their position that without prejudice privilege only extends to express or implied admissions. Rather, counsel for John and Bianca submitted that it is a matter of characterisation in respect of any communication whether or not the communication was, in fact, made as part of a bona fide attempt to compromise a dispute, and that if there is not an element of compromise in a communication, whether express or implied, it would be difficult to characterise the document as being the subject of without prejudice privilege.[50]
[50] ts 39 ‑ 40, 31 January 2024.
119Counsel for John and Bianca was right to clarify that their position was not that without prejudice privilege only applies to express or implied admissions. A submission that without prejudice privilege only applies in that narrow context was rejected by Robert Walker LJ in Unilever Plc v Procter & Gamble Co when he said:[51]
Row Document Number1 Document Description Document Date Document ID Privilege Party and Whole or
Part
Privilege Type2 Privilege Basis Other objections to inspection Litigation Privilege "Wittenoom", "Rhodes Ridge", "Fieldhouse", "Watters", "Porteous", "Madden", "Estate of F Rinehart" and "Statement by Third Parties", pursuant to O 26 r 1B of the Rules of the Supreme Court, as that information is not relevant to the issues in dispute in the
proceedings.
27. 32 Minutes of the Management Meeting 11/07/1995 HPPL.181.009.001109 HPPL-
Part HFMF-
Part
HPPL- 03.
Advice and Litigation Privilege HFMF - 03.
Advice and Litigation Privilege
The redacted parts of this document record discussions within HPPL of legal advice received by HPPL and HFMF from various legal advisors, including various legal matters and in relation to ongoing litigation involving HPPL and HFMF. The HPPL Parties also object to inspection of the unredacted information appearing beside the subjects "Fieldhouse", "Superannuation", "H&W Assets", "FAI Shares", "Rhodes Ridge", "Watters", "Madden," "Estate of F E Rinehart" and "Statements to OPP", pursuant to O 26 r 1B of
Row Document Number1 Document Description Document Date Document ID Privilege Party and Whole or
Part
Privilege Type2 Privilege Basis Other objections to inspection the Rules of the Supreme Court, as that information is not relevant to the issues in dispute in the proceedings. 28. 33 Minutes of Management Meeting 25/07/1995 HPPL.170.535.002079 HFMF-
Part HPPL-
Part
HFMF -03.
Advice and Litigation Privilege HPPL - 03.
Advice and Litigation Privilege
This document records discussion within HPPL of legal advice received by HPPL and HFMF from various legal advisors, including various legal matters and in relation to ongoing litigation. The HPPL Parties also object to inspection of the unredacted information appearing beside the subjects "Rhodes Ridge", "Watters", "Fieldhouse", "Watters", "Estate of F Rinehart" and "Channar'', pursuant to O 26 r 1B of the Rules of the Supreme Court, as that information is not relevant to the issues in dispute in the proceedings. 29. 34 Minutes of
Management Meeting
31/08/1995 HPPL.170.531.002367 HFMF-
Part HPPL
- Part
HFMF - 01.
Litigation Privilege HPPL - 01.
Litigation
Privilege
The redacted parts of this document record discussion within HPPL in relation to ongoing litigation involving HPPL and HFMF. The HPPL Parties also object to inspection of the unredacted information appearing beside
Row Document Number1 Document Description Document Date Document ID Privilege Party and Whole or
Part
Privilege Type2 Privilege Basis Other objections to inspection the subjects "Channar" and "Watters" pursuant to O 26 r 1B of the Rules of the Supreme Court, as that information is not relevant to the issues in dispute in the proceedings. 30. 35 Notes for Management Meeting 30/06/1995 HPPL.170.535.002109 HFMF-
Part HPPL-
Part
GHR- Part
HFMF - 03.
Advice and Litigation Privilege HPPL - 02.
Advice Privilege GHR-02.
Advice Privilege
The redacted parts of this document record discussion within HPPL of legal advice received by Mrs Rinehart, HPPL and HFMF from various legal advisors, including various legal matters and in relation to ongoing litigation involving HFMF. The HPPL Parties also object to inspection of the unredacted information appearing beside the subject "Fieldhouse" pursuant to O 26 r 1B of the Rules of the Supreme Court, as that information is not relevant to the issues in dispute in the proceedings. 31. 36 Notes for Management
Meeting
30/06/1995 HPPL.181.009.001143 HFMF-
Part HPPL-
Part
GHR- PartHFMF - 03.
Advice and Litigation Privilege HPPL - 02.
Advice
Privilege
The redacted parts of this document record discussion within HPPL of legal advice received by Mrs Rinehart, HPPL and HFMF from various legal advisors, including various legal matters and in relation to The HPPL Parties also object to inspection of the unredacted information appearing beside the subject
Row Document Number1 Document Description Document Date Document ID Privilege Party and Whole or
Part
Privilege Type2 Privilege Basis Other objections to inspection GHR-02.
Advice Privilege
ongoing litigation involving HFMF. "Fieldhouse" pursuant to O 26 r 1B of the Rules of the Supreme Court, as that information is not relevant to the issues in dispute in the proceedings. 32. 37 Minutes of HFMF Meeting of the Directors between D McKenna, G Schwab, D Paice, T Cocks (Cocks Macnish) and A Edwards (Coopers & Lybrand) dated 14 March 1995 14/03/1995 HPPL.180.311.005541· HFMF-
Part
HFMF - 03.
Advice and Litigation Privilege
[redacted]. This document discloses instructions provided by HFMF to its solicitors (Cocks Macnish) for the purpose of obtaining advice and in relation to potential litigation. [redacted]. N/A 33. 38 Appendix B - Assessment of HPPL Royalty Value 21/06/1995 HPPL.170.504.014104 GHR-
Whole HFMF-
Whole HPPL-
Whole
HFMF- 05.
Without Prejudice Privilege HPPL- 05.
Without Prejudice Privilege GHR-05.
Without Prejudice Privilege
This is an attachment to document 40, being a version of the C&L Valuation provided to HPPL for comment. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. N/A
Row Document Number1 Document Description Document Date Document ID Privilege Party and Whole or
Part
Privilege Type2 Privilege Basis Other objections to inspection 34. 39 Appendix C Other Assets and Liabilities Valuation Approach 21/06/1995 HPPL.170.504.014131 GHR-
Whole HFMF-
Whole HPPL-
Whole
HFMF- 05.
Without Prejudice Privilege HPPL- 05.
Without Prejudice Privilege GHR-05.
Without Prejudice Privilege
This is an attachment to document 40, being a version of the C&L Valuation provided to HPPL for comment. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. N/A 35. 40 Letter from A Edwards
(Coopers & Lybrand) to T Cocks (Cocks Macnish) dated 12 June 1995
21/06/1995 HPPL.170.504.014408 GHR-
Whole HFMF-
Whole HPPL-
Whole
HFMF- 05.
Without Prejudice Privilege HPPL-05.
Without Prejudice Privilege GHR-05.
Without Prejudice Privilege
This is a version of the C&L Valuation provided to HPPL for comment. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]
In addition, the document includes a note that describes communications for the purpose of resolving a dispute between HPPL and Mrs Rinehart (on the one hand) and John Hancock (on the other hand).
N/A
Row Document Number1 Document Description Document Date Document ID Privilege Party and Whole or
Part
Privilege Type2 Privilege Basis Other objections to Inspection 36. 41 Appendix A Assessment of Value of HPPL 21/06/1995 HPPL.170.504.014435 GHR-
Whole HFMF-
Whole HPPL-
Whole
HFMF- 05.
Without Prejudice Privilege HPPL-05.
Without Prejudice Privilege GHR-05.
Without
Prejudice Privilege
This is an attachment to document 40, being a version of the C&L Valuation provided to HPPL for comment. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL.
[redacted].
N/A 37. 42 Appendix B Assessment of HPPL royalty value 21/06/1995 HPPL.170.504.041220 HFMF-
Whole HPPL-
Whole
HFMF-05.
Without Prejudice Privilege HPPL- 05.
Without Prejudice Privilege
This is an attachment to document 45, being a version of the C&L Valuation provided to D Paice (HPPL) for comment. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL.
[redacted].
N/A 38. 43 Appendix A
Assessment of Value of HPPL
21/06/1995 HPPL.170.504.041221 HFMF-
Whole HPPL-
Whole
HFMF-05.
Without Prejudice Privilege HPPL-05.
Without Prejudice
Privilege
This is an attachment to document 45, being a version of the C&L Valuation provided to D Paice (HPPL) for comment. The preparation of the document was reasonably incidental to the resolution of disputes between
HFMF and HPPL in relation to
N/A
Row Document Number1 Document Description Document Date Document ID Privilege Party and Whole or
Part
Privilege Type2 Privilege Basis Other objections to inspection HRL's debts to HPPL and the ownership of HRL. [redacted]. 39. 44 Appendix C Other Assets and Liabilities Valuation Approach 21/06/1995 HPPL.170.504.041226 HFMF-
Whole HPPL-
Whole
HFMF- 05.
Without Prejudice Privilege HPPL-05.
Without Prejudice Privilege
This is an attachment to document 45, being a version of the C&L Valuation provided to D Paice (HPPL) for comment. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. N/A 40. 45 Letter from Coopers & Lybrand to Cocks Macnish regarding The Hancock Family Memorial Foundation Limited 21/06/1995 HPPL.170.504.041273 HFMF-
Whole HPPL-
Whole
HFMF- 05.
Without Prejudice Privilege HPPL- 05.
Without Prejudice Privilege
This is a version of the C&L Valuation provided to David Paice (HPPL) for comment. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. N/A 41. 46 Letter from Coopers & Lybrand (Securities Limited) to Cocks 21/06/1995 HPPL.170.594.017288 HFMF-
Whole
HFMF-05.
Without
This is a version of the C&L
Valuation provided to G Newing (HPPL) for comment. The
N/A
RowDocument Number1 Document Description Document Date Document ID Privilege Party and Whole or
Part
Privilege Type2 Privilege Basis Other objections to inspection Macnish Re: The Hancock Family Memorial Foundation Limited HPPL-
Whole
Prejudice Privilege HPPL- 05.
Without Prejudice Privilege
preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. 42. 47 Appendix B Assessment of HPPL Royalty Value 21/06/1995 HPPL.170.594.017299 HFMF-
Whole HPPL-
HFMF-05.
Without Prejudice
This is an attachment to
document 46, being a version of the C&L Valuation provided to G
N/A Whole Privilege Newing (HPPL) for comment. HPPL- 05. The preparation of the document Without was reasonably incidental to the Prejudice resolution of disputes between Privilege HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. 43. 48 Appendix A
Assessment of Value of HPPL
21/06/1995 HPPL.170.594.017300 HFMF-
Whole HPPL-
HFMF- 05.
Without Prejudice
This is an attachment to
document 46, being a version of the C&L Valuation provided to G
N/A Whole Privilege Newing (HPPL) for comment. HPPL-05. The preparation of the document Without was reasonably incidental to the Prejudice resolution of disputes between Privilege HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. Row Document Number1 Document Description Document Date Document ID Privilege Party and Whole or Part Privilege Type2 Privilege Basis Other objections to inspection 44. 49 Appendix C Other Assets and Liabilities 21/06/1995 HPPL.170.594.017301 HFMF-
Whole
HFMF- 05.
Without
This is an attachment to document 46, being a version of N/A Valuation Approach HPPL- Prejudice the C&L Valuation provided to Whole Privilege G Newing (HPPL) for comment. HPPL- 05. The preparation of the document Without was reasonably incidental to the Prejudice resolution of disputes between Privilege HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. 45. 50 Letter from Coopers & Lybrand (Securities Limited) to Cocks Macnish Re: The Hancock Family Memorial Foundation Limited 21/06/1995 HPPL.180.468.000185 HFMF-
Whole HPPL-
Whole
HFMF- 05.
Without Prejudice Privilege HPPL- 05.
Without Prejudice Privilege HPPL- 02.
Advice Privilege
This is a version of the C&L Valuation provided to David Paice (HPPL) for comment. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL.
In addition, this version was provided to Blake Dawson Waldon and contains handwritten annotations from a BDW lawyer.
N/A [redacted].
Row Document Number1 Document Description Document Date Document ID Privilege Party and Whole or
Part
Privilege Type2 Privilege Basis Other objections to Inspection 46. 51 Appendix B Assessment of HPPL Royalty Value 21/06/1995 HPPL.180.468.000196 HFMF-
Whole HPPL-
HFMF-05.
Without Prejudice
This is an attachment to
document 50, being a version of the C&L Valuation provided to D
N/A Whole Privilege Paice (HPPL) for comment. The HPPL- 05. preparation of the document was Without reasonably incidental to the Prejudice resolution of disputes between Privilege HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. 47. 52 Appendix A Assessment of Value of HPPL 21/06/1995 HPPL.180.468.000197 HFMF-
Whole HPPL-
HFMF-05.
Without Prejudice
This is an attachment to
document 50, being a version of the C&L Valuation provided to D
N/A Whole Privilege Paice (HPPL) for comment. The HPPL- 05.
Without
preparation of the document was reasonably incidental to the Prejudice resolution of disputes between Privilege HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. 48. 53 Appendix C Other
Assets and Liabilities Valuation Approach
21/06/1995 HPPL.180.468.000198 HFMF-
Whole HPPL-
HFMF-05.
Without
Prejudice
This is an attachment to document 50, being a version of
the C&L Valuation provided to D
N/A Whole Privilege Paice (HPPL) for comment. The HPPL- 05. preparation of the document was Without reasonably incidental to the Prejudice resolution of disputes between Privilege HFMF and HPPL in relation to
Row Document Number1 Document Description Document Date Document ID Privilege Party and Whole or
Part
Privilege Type2 Privilege Basis Other objections to inspection HRL's debts to HPPL and the ownership of HRL. [redacted]. 49. 54 Letter from Coopers & Lybrand (Securities Limited) to Cocks Macnish Re: The Hancock Family Memorial Foundation Limited 21/06/1995 HPPL.180.600.008768 HFMF-
Whole HPPL-
Whole
.HFMF-05.
Without Prejudice Privilege HPPL-05.
Without Prejudice Privilege
This is a version of the C&L Valuation provided to David Paice (HPPL) for comment. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. N/A 50. 55 Letter from J
Carrington (BDW) to J Morhall dated 3 May 1995
3/05/1995 HPPL.180.048.000038 HPPL-
Whole
HPPL - 02.
Advice Privilege HPPL - 05.
Without prejudice privilege
This document is a confidential communication between J Carrington (BDW) and J Morhall (HPPL) providing legal advice and requesting further instructions in relation to that advice. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. N/A
Row Document Number1 Document Description Document Date Document ID Privilege Party and Whole or
Part
Privilege Type2 Privilege Basis Other objections to inspection 51. 56 Letter from Blake Dawson Waldron to HPPL 3/05/1995 HPPL.211.009.001222 HPPL-
Whole
HPPL - 03.
Advice and Litigation
This document is a confidential communication between J Carrington (BDW) and D Paice, N/A Privilege J Morhall and J Lee (HPPL) for HPPL - 05. the dominant purpose of Without providing legal advice regarding, prejudice inter alia, Rose Porteous and the privilege payment of dividends. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted] 52. 57 Fax from D Paice to R Davies Re: Prior Knowledge of HFMF and Likely Success of 260 Action 29/05/1995 HPPL.180.600.010105 HPPL-
Whole
HPPL- 02.
Advice Privilege HPPL - 05.
Without
This document is a confidential communication between D Paice (HPPL) to R Davies (Blake Dawson Waldron) with copies to
J Morhall, J Lee, G Schwab
N/A prejudice (HPPL) and T Cocks (Cocks privilege Macnish) containing information and notes of discussions regarding legal advice. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. Row Document Number1 Document Description Document Date Document ID Privilege Party and Whole or Part Privilege Type2 Privilege Basis Other objections to inspection 53. 58 Fax from D Paice to R Davies (BDW) regarding Dividend Advice 30/05/1995 HPPL.105.015.017349 HPPL-
Whole
HPPL - 02.
Advice Privilege HPPL - 05.
This document is a confidential communication from D Paice
(HPPL) to R Davies (Blake Dawson Waldron) for the
N/A Without dominant purpose of obtaining prejudice legal advice in relation to privilege dividends. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. 54. 59 Letter from R Davies
(BDW) to J Lee Re: Advice
23/05/1995 HPPL.105.015.017109 HPPL-
Whole
HPPL-02.
Advice Privilege HPPL-05.
This document is a confidential communication between R Davies (Blake Dawson Waldron)
and J Lee (HPPL in-house
N/A Without counsel} for the dominant prejudice purpose of providing legal advice privilege in relation to dividends. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. Row Document Number1 Document Description Document Date Document ID Privilege Party and Whole or
Part
Privilege Type2 Privilege Basis Other objections to inspection 55. 60 Letter from Blake Dawson to HPPL Re: Advice 23/05/1995 HPPL.105.015.017112 HPPL-
Whole
HPPL- 02.
Advice Privilege HPPL- 05.
Without prejudice privilege
This document is an attachment to a confidential communication between R Davies (Blake Dawson Waldron) and J Lee (HPPL in-house counsel) for the dominant purpose of providing legal advice in relation to dividends. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. N/A 56. 61 Fax from Blake
Dawson Waldron to J Lee (Company Solicitor, HPPL) regarding Advice - Dividend Declaration
25/05/1995 HPPL.105.015.017281 HPPL-
Whole
HPPL- 02.
Advice Privilege HPPL-05.
Without prejudice privilege
This document is a communication from R Davies (BDW) to J Lee (HPPL counsel) enclosing draft advice from Blake Dawson Waldron to HPPL regarding dividends paid by HPPL. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. N/A 57. 62 Fax from Blake
Dawson Waldron to D Paice and J Lee
25/05/1995 HPPL.180.408.000115 HPPL-
Whole
HPPL-:-- 02.
Advice Privilege
This document is a confidential communication from R Davies (Blake Dawson Waldron) to the N/A
Row Document Number1 Document Description Document Date Document ID Privilege Party and Whole or
Part
Privilege Type2 Privilege Basis Other objections to inspection (HPPL) regarding Dividend Advice HPPL-05.
Without prejudice privilege
directors of HPPL for the dominant purpose of providing legal advice to HPPL in respect of dividends. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and • HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. 58. 63 Fax from Blake
Dawson Waldron to D Paice and J Lee (HPPL) regarding - Dividend Advice
29/05/1995 HPPL.105.015.017329 HPPL-
Whole
HPPL - 02.
Advice Privilege HPPL - 05.
Without prejudice privilege
This document is a confidential communication from R Davies (BDW) to J Lee (HPPL counsel) and D Paice enclosing draft advice from Blake Dawson Waldron to HPPL regarding dividends paid by HPPL. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. N/A 59. 64 Fax from Blake
Dawson Waldron to D Paice and J Lee (HPPL} regarding - Dividend Advice
29/05/1995 HPPL.180.408.000099 HPPL-
Whole
HPPL-02.
Advice Privilege HPPL-05.
Without
prejudice
privilege
This document is a confidential communication from R Davies (BDW) to J Lee (HPPL counsel} and D Paice enclosing draft advice from Blake Dawson Waldron to HPPL regarding
dividends paid by HPPL. The
N/A
Row Document Number1 Document Description Document Date Document ID Privilege Party and Whole or
Part
Privilege Type2 Privilege Basis Other objections to inspection preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. 60. 65 Letter from Blake 29/05/1995 HPPL.180.408.000101 HPPL- HPPL-02. This document is an attachment N/A Dawson Waldron to Whole Advice to a confidential communication the Directors of HPPL Privilege from R Davies (BDW) to D Paice regarding the Payment HPPL- 05. and J Lee (HPPL) enclosing of Dividends Without draft legal advice regarding the prejudice payment of dividends by HPPL. privilege The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. 61. 66 Fax from Blake 29/05/1995 HPPL.181.065.005411 HPPL- HPPL-02. This document is a confidential N/A Dawson Waldron to D Whole Advice communication from R Davies Paice (HPPL} Privilege (Blake Dawson Waldron) to D regarding - Dividend HPPL- 05. Paice and J Lee (HPPL) Advice Without enclosing draft legal advice prejudice regarding the payment of privilege dividends by HPPL. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the
Row Document Number1 Document Description Document Date Document ID Privilege Party and Whole or Part Privilege Type2 Privilege Basis Other objections to inspection ownership of HRL. [redacted]. 62. 67 Letter from Blake
Dawson Waldron to the Directors of HPPL regarding the Payment of Dividends
29/05/1995 HPPL.181.065.005415 HPPL-
Whole
HPPL- 02.
Advice Privilege HPPL- 05.
Without
This document is an attachment to a confidential communication from R Davies (Blake Dawson Waldron) to D Paice and J Lee (HPPL) enclosing draft legal N/A prejudice advice regarding the payment of privilege dividends by HPPL. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. 63. 68 Memorandum from D Paice to J Morhall, copied to J Carrington (BDW), T Cocks (Cocks Macnish), J Mison, G Schwab and T McKenna dated 26 April 1995 26/04/1995 HPPL.105.011.039999 HPPL-
Whole
HPPL- 02.
Advice Privilege HPPL- 05.
Without prejudice privilege
This document is a letter from David Paice (HPPL) to John Morhall (HPPL) copied to John Carrington (BDW) and Tim Cocks (Cocks Macnish) regarding legal advice sought by HPPL from BDW. The memorandum is marked "private and confidential". The N/A preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. Row Document Number1 Document Description Document Date Document ID Privilege Party and Whole or
Part
Privilege Type2 Privilege Basis Other objections to inspection 64. 69 Letter from Cocks Macnish to Helen (D Paice, HFMF) copied to G Rinehart, G Schwab, T McKenna, J Carrington (BDW) and K Edwards (Edwards Thompson) dated 11 October 1995 11/10/1995 HPPL.105.011.043827 HFMF-
Whole HPPL-
Whole
HFMF -02.
Advice Privilege HFMF -05.
Without prejudice privilege HPPL- 02.
Advice Privilege HPPL- 05.
Without
prejudice privilege
This document is a confidential communication between Cocks Macnish and HFMF for the dominant purpose of providing legal advice. The preparation of the document was reasonably incidental to the resolution of disputes between HFMF and HPPL in relation to HRL's debts to HPPL and the ownership of HRL. [redacted]. N/A 65. 70 Document titled 'HML and HRL Reversal - Hancock Group Calculation of HFMF - HPPL lntercompany in the Books of HPPL HML and HRL Only Reversal' dated 15 November 1995 15/11/1995 HPPL.105.015.021708 HPPL-
Whole
HPPL- 02.
Advice Privilege HPPL - 05.
Without prejudice privilege
This document is an attachment to an internal HPPL memorandum from G Newing to D Paice and D Neil recording legal advice from R Davies (Blake Dawson Waldron) and without prejudice negotiations concerning the debt reconstruction. [redacted]. N/A 66. 71 Brief to Dyson Heydon QC 25/11/1998 HPPL.211.011.000001
(Vol 1)
HPPL-
Whole
HPPL- 03.
Advice and Litigation Privilege
This document is a brief prepared by Corrs Chambers Westgarth, solicitors for HPPL, to Dyson Heydon QC for the dominant purpose of obtaining legal advice.
N/A
HPPL.211.011.000504
(Vol 2)
HPPL.211.011.000904
(Vol 3)
HPPL.211.011.001242
(Vol 4)
| Row | Document Number1 | Document Description | Document Date | Document ID | Privilege Party and Whole or Part | Privilege Type2 | Privilege Basis | Other objections to inspection |
| 67. | 72 | Zamoever File | HPPL.211.010.000001 (Vol 1) | GHR- Whole HPPL- Whole | GHR-03. Advice and Litigation Privilege HPPL - 03. Advice and Litigation Privilege | This document is a file containing documents of Freehill Hollingdale & Page and Blake Dawson Waldron. This file was created for the dominant purpose of obtaining legal advice and in the course of ongoing litigation. | N/A | |
| HPPL.211.010.000276 (Vol 2) | ||||||||
| 68. | 73 | File Note of Conference | 9/09/1994 | HPPL.170.539.000906 | HPPL- Whole | 05. Without prejudice privilege | This document is a confidential file note of a meeting between HPPL, Blake Dawson Waldron and Cocks Macnish recording the provision of legal advice and containing handwritten annotations created for the dominant purpose of negotiations and in relation to proposed settlement of a dispute between HPPL and HFMF. | N/A |
| 69. | 74 | Agreement between HFMF and HPPL | 5/08/1994 | HPPL.180.421.000215 | HFMF- Whole HPPL- Whole | HFMF- 05. Without prejudice privilege HPPL-05. Without prejudice privilege | This document is a settlement agreement entered into by HPPL and HFMF in the course of and for the purpose of an attempt to settle disputes between the two companies. | N/A |
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
22 APRIL 2024