Zuleika Gold Limited formerly known as Dampier Gold Ltd v Vango Mining Limited [No 2] - [2025] WASC 320

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ZULEIKA GOLD LIMITED formerly known as DAMPIER GOLD LTD -v- VANGO MINING LIMITED [No 2] [2025] WASC 320
CORAM:   PALMER J
HEARD:   11 AUGUST 2025
DELIVERED          :   Ex tempore
FILE NO/S:   CIV 1609 of 2020
BETWEEN:   ZULEIKA GOLD LIMITED formerly known as DAMPIER GOLD LTD
Plaintiff
AND
VANGO MINING LIMITED
First Defendant
DAMPIER (PLUTONIC) PTY LTD
Second Defendant

Catchwords:

Practice and procedure - Legal professional privilege - Application for order to produce draft report referred to in affidavit relied upon in application to extend time for the filing of expert evidence - Whether draft report subject to legal professional privilege - Whether legal professional privilege has been waived

Legislation:

Rules of the Supreme Court 1971 (WA) O 26 r 8(2), 9(1)

Result:

Application granted

Representation:

Counsel:

Plaintiff	:	Mr G R Donaldson SC & Ms B Tariq
First Defendant	:	Mr J Garas SC
Second Defendant	:	Mr J Garas SC

Solicitors:

Plaintiff	:	Bennett
First Defendant	:	Gilbert + Tobin
Second Defendant	:	Gilbert + Tobin

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

AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30
Banksia Mortgages Ltd v Croker [2010] NSWSC 535
Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341; [2006] FCAFC 86
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384
Energy Resources Ltd v Cactus Wellhead Australia Pty Ltd [No 3] [2025] WASC 100
Hunter Quarries Pty Limited v Morrison; Badior v Morrison (2017) 96 NSWLR 658; [2017] NSWCCA 326
Moustapha v Nelson [2019] NSWSC 1573
Murray v Schreuder [2009] WASC 51 [63]; Trans Petroleum (Australasia) Pty Ltd v United Petroleum (WA) Pty Ltd [2019] WASC 154
New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258
Polland v Hedley [2023] WASCA 69

PALMER J:

(These reasons were delivered extemporaneously and have been edited to correct matters of grammar and infelicity of expression.)

Introduction

By a minute of proposed orders dated 30 July 2025, the defendants apply for an order that the plaintiff produce the draft technical report referred to in paragraph 40 of the Affidavit of Nathan Christopher Ebbs sworn 3 July 2025 (the Ebbs Affidavit), pursuant to O 26 r 9(1) of the Rules of the Supreme Court1971 (the Rules).
It has subsequently become apparent that in fact there are two technical draft reports. The defendants seek production of both.
The plaintiff objects to producing the draft report on the basis that it is subject to legal professional privilege.
The defendants contend that any such privilege has been waived.
Before turning to consider whether or not privilege has been waived, it is necessary to say something about the circumstances in which the demand for production has arisen and when production will be ordered under the Rules.

The circumstances giving rise to the demand for production

The Ebbs Affidavit

Mr Ebbs is a partner at Bennett, the firm of solicitors representing the plaintiff in these proceedings. The Ebbs Affidavit was sworn to support an application made by the plaintiff to extend the time for it to file its expert evidence.
On 28 February 2025, I ordered that by 4:00 pm on 19 May 2025 the plaintiff must file and serve on the defendants a copy of the report or the substance of the evidence of any expert witness whose evidence is to be adduced by the plaintiff.
On 11 April 2025, over the defendants' opposition, I ordered that the time for compliance with that order be extended to 30 June 2025.
On 4 July 2025, the plaintiff filed a minute that proposed orders further extending the time for the plaintiff to file its expert evidence (Minute of Proposed Orders). Mr Ebbs's affidavit addresses why the plaintiff needed more time to file its expert evidence.
In his affidavit Mr Ebbs deposed to having instructed AMC Consultants Pty Ltd (AMC) to act as an independent technical expert. He deposed to having received a draft technical report from AMC, having provided a copy of that report to counsel and then having met with counsel to discuss the report.
Paragraph 40 of the Ebbs Affidavit stated:
Based on my own review of the Draft Technical Report and the conversation with Counsel occurring at the meeting set out in paragraph 39 above, I formed the view that the Draft Report could not be used due to significant deficiencies, including but not limited to, the lack of direct responses to most of the questions that AMC was instructed to opine on and that any attempts to resolve these issues would require such significant solicitor involvement that it [sic] most likely compromise the integrity and the impartiality of the evidence.
The Ebbs Affidavit continues to state that Mr Ebbs had been briefed by the plaintiff to make enquiries of an alternative expert and that the plaintiff had been instructed to brief that expert.
Paragraph 4 of the Ebbs Affidavit stated:
None of the matters deposed to in this affidavit are intended to constitute a waiver of the Plaintiff's privilege, including, but not limited to, matters relating to communications between the Plaintiff and its legal representatives and communications between the Plaintiff, its legal representatives and third-party experts.
On 11 July 2025, the defendants' solicitors wrote to the plaintiff's solicitors requesting production of the draft technical report by 12.00 pm the following day. The letter asserted that any legal professional privilege over the document had been waived. The plaintiff did not produce the document.

The directions hearing on 16 July 2025

A directions hearing took place before me on 16 July 2025.
At that directions hearing, senior counsel for the plaintiff moved for orders in terms of the Minute of Proposed Orders. The Ebbs Affidavit was read in support of that application.
The plaintiff relied upon the position identified by Mr Ebbs to support the orders that they sought.
Senior counsel for the defendants objected to the receipt of paragraph 40 of the Ebbs Affidavit on the grounds, amongst other things, that the defendants had been denied an open opportunity to inspect the draft expert report and make submissions. I admitted the paragraph but indicated that I would take into account the absence of the report in considering the weight to be attached to what Mr Ebbs said.
The defendants opposed orders in terms of the Minute of Proposed Orders. They argued that the timetable proposed by the plaintiff was unworkable given the availability of their experts.
Senior counsel for the defendants suggested that it might be possible to rectify the deficiencies in the draft technical report. He argued that the report could be served in its current form and the process of the preparation of the expert evidence could proceed. In response I expressed concern that if the draft technical report failed to answer some of the questions as Mr Ebbs said, such a course might not be practical.
Ultimately, I indicated that I considered it was too early to tell whether the report could be rectified and that an incremental approach should be adopted. I extended the time for the plaintiff to file its expert evidence until 8 August 2025 and set the matter down for a further directions hearing on 11 August 2025 to consider the orders that should be made then, in light of the progress that had been made by that stage.

The defendants press for production

On 23 July 2025, the defendants' solicitors wrote to the plaintiff's solicitors indicating that for the avoidance of any doubt, the request made on 11 July 2025 had been made pursuant to O 26 r 8(2) of the Rules. The letter said that the request for production pursuant to O 26 r 8(2) was repeated.
On 29 July 2025, the defendants' solicitors again wrote to the plaintiff's solicitors requesting production of the draft technical report.

When production will be ordered under the Rules

Order 26 r 8(2) of the Rules provides that any party to a matter may at any time serve a notice on any other party in whose affidavit a reference is made to any document, requiring him to produce that document for inspection.
Order 26 r 8(3) of the Rules provides that a party on whom a notice is served under O 26 r 8(2) must within 4 days of service state a time within 7 days at which the document may be inspected, or if he objects to produce the document, the grounds of his objection.
Order 26 r 9(1) of the Rules provides that where a party fails to serve the required notice, or objects to produce the document, the Court may make an order for production of the document in question.
The purpose of O 26 r 8(2) is to put the party seeking production of the document for inspection in the same position as they would have been in if the document referred to had been set out in full in the affidavit. The document must be produced unless good cause is shown.[1]
[1] Murray v Schreuder [2009] WASC 51 [63]; Trans Petroleum (Australasia) Pty Ltd v United Petroleum (WA) Pty Ltd [2019] WASC 154 [36].

Was privilege waived?

When privilege will be waived

The plaintiff seeks to resist production of the draft technical report on the basis that it is subject to legal professional privilege.
The principles regarding when legal professional privilege is waived were discussed by the Court of Appeal in Poland v Hedley.[2] The court summarised the position as follows:
Legal professional privilege exists to protect the confidentiality of communications between the lawyer and client. It is inconsistency between the conduct of the client and the maintenance of the confidentiality which effects a waiver of the privilege. The assessment of whether a party has waived privilege is determined by considering whether, viewed objectively, the conduct of the privilege-holder is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Where the privilege-holder's conduct objectively evinces the requisite inconsistency, the law will recognise the inconsistency and its consequences, even though such consequences may not reflect the subjective intention of the privilege-holder. The assessment is to be made in the context and circumstances of the case, and in light of any considerations of fairness arising from that context or those circumstances. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether, objectively, there is inconsistency. There is not, however, some overriding principle of fairness operating at large. All the circumstances must be looked at, including whether any disclosure to a third party was on terms and in circumstances consistent with the preservation of confidentiality.
[2] Polland v Hedley [2023] WASCA 69 (Polland v Hedley) [7].
In Polland v Hedley, the Court of Appeal said the mere reference to a document will not constitute a waiver of privilege and the Rules contemplate that an application to inspect a document referred to might be met with a claim for privilege.[3]
[3] Polland v Hedley [75].
The Court of Appeal explained, however, that where a party to proceedings makes an assertion as part of its case that, directly or indirectly, puts the contents of privileged communications in issue, or necessarily opens them to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege, privilege will be impliedly waived. The Court of Appeal observed that it does not matter that the privilege‑holder did not subjectively intend to lose the benefit of the privilege.[4]
[4] Polland v Hedley [75].
In Moustapha v Nelson,[5] Ward CJ in Eq had to consider whether privilege had been waived in circumstances that have some similarities to the present circumstances. The case concerned whether privilege had been waived over, amongst other things, draft reports prepared by experts that were referred to in affidavits sworn by the plaintiffs' solicitor to support an application to extend the time for the plaintiffs to file their expert evidence.
[5] Moustapha v Nelson [2019] NSWSC 1573 (Moustapha).
The solicitor's affidavit sought to explain the delay in obtaining expert evidence by giving evidence about the difficulties in obtaining admissible expert evidence, including that draft reports that prepared by the experts briefed were inadequate, attempts were made to rectify those inadequacies and ultimately a second expert was briefed. The solicitor referred to communications that she had had with the proposed experts, exhibited some of the correspondence with those experts and discussed the difficulties with the draft reports.
The defendant maintained that there were discrepancies in the account given by the solicitor. The defendant issued a subpoena to the first expert and a notice to produce in relation to the first expert's draft report and communications with both experts referred to in the affidavit, to be used for cross-examination of the solicitor.
The plaintiffs sought to set aside the subpoena and the notice to produce and submitted that the documents in question were subject to legal professional privilege.
The defendant maintained that the privilege had been waived.
Ward CJ in Eq referred to the decision of Allsop J (as the former Chief Justice then was) in DSE (Holdings) Pty Ltd v Intertan Inc,[6] where his Honour referred to the situation where:
… the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication. …
[6] DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384 [58].
Ward CJ in Eq also referred to Commissioner of Taxation v Rio Tinto Ltd,[7] where the Full Court of the Federal Court, after reviewing a number of authorities, said:
These authorities show that, where issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication.
[7] Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341; [2006] FCAFC 86 [52].
Ward CJ in Eq noted that the defendant argued that the case before her was analogous to the situation in Banksia Mortgages Ltd v Croker[8] where an affidavit sworn by the defendant's lawyer referred to privileged emails and their content and it was found that there had been waiver.
[8] Banksia Mortgages Ltd v Croker [2010] NSWSC 535.
The plaintiffs argued that the disclosure of the fact of the communication was not inconsistent with the maintenance of privilege. They submitted that the affidavit was to explain the delay. They contended that the affidavit was not angled to the substance of the communications but to the fact that communications were taking place.
Ward CJ in Eq concluded that privilege had been waived and said:
70 I am of the opinion that the reference to the communications and the annexing of some but not all of the communications has put in issue the following matters which are relevant or may be relevant to questions of delay, and therefore relevant to questions of whether or not leave should be granted for the plaintiffs now to rely upon Mr Sims' expert report.
71 Firstly, as to the date of retainer of Mr Morris and, equally, of Mr Sims, that that could be dealt with by provision of a letter of instruction, or versions of it, but also as to whether or not Mr Morris was able to produce a compliant report, and whether and when the plaintiffs formed the view that all possible efforts had been exhausted to obtain it.
72 It seems to me that as it is inconsistent with the maintenance of a claim for privilege for the plaintiffs to seek to rely on those communications in order to explain the delay and therefore explain the basis on which leave is sought to rely upon the expert report, in particular issues such as whether the delay was referable to a dispute as to costs or as to the form of the report or as to the contents of the report and the instructions to the expert, as well as the drafts provided to the solicitors for the plaintiffs, will inform the issues sought to be relied upon by the plaintiffs in relation to the plaintiffs' application for leave.

Privilege was waived

The plaintiff's submissions did not address why privilege had not been waived in a substantive way. Instead, the plaintiff argued that the principal issue raised by the defendants concerned the unfairness of the defendants being unable to read the draft report to decide whether its inadequacies properly gave rise to the plaintiff's expressed need for more time. The plaintiff argued that since they had now filed a replacement report from a different expert within time, the draft report that the defendants sought production of, was no longer relevant. The plaintiff argued that the circumstances were therefore quite different to the circumstances in Moustapha.
During the course of the hearing today, there was conferral between counsel. It seems likely that the programming of this matter to trial will be subject to substantive agreement. The plaintiff reiterated the submissions during the hearing today that, in fact, in these circumstances, the draft technical report is of dubious relevance to the further programming of this matter.
The plaintiff's argument seemed limited to addressing the relevancy of the draft report to the further programming orders. In this regard, it seemed to miss the point.
The defendants' entitlement to production of the report does not depend upon whether it is relevant to the programming orders sought. Production has been sought under O 26 r 8(2) of the Rules because the draft report was referred to in paragraph 40 of the Ebbs Affidavit. As discussed above, a document requested under this rule must be produced unless good cause is shown.
Nor is it evident that the draft report is generally irrelevant. It is evident from the Ebbs Affidavit that the draft report was sought to address matters relevant to these proceedings. That the document has been discovered under oath confirms its relevance.
In my view, the assertions made in paragraph 40 of the Ebbs Affidavit and the plaintiff's reliance on Mr Ebbs's evidence to support its application for an extension of time for the filing of expert evidence was inconsistent with the maintenance of the claim for privilege.
Paragraph 40 of the Ebbs Affidavit goes beyond simply stating the fact that a draft report had been received. Nor is the paragraph limited to the expression of Mr Ebbs's opinion that the report could not be used. The paragraph makes factual observations about the drafting of the report, including that it did not answer most of the questions posed and that it was drafted in a manner that made rectification impossible.
This evidence about the drafting of the report was of significant relevance at the directions hearing on 16 July 2025. The deficiencies in the report were relied upon by the plaintiff to justify the need for more time because the plaintiff would have to start again with a new expert. It was the evidence of the deficiencies that led me to reject the submission made by the defendants' senior counsel that the plaintiff could simply serve the draft report.
The assertions made in paragraph 40 that the draft report did not answer most of the questions and that it was drafted in a manner that made rectification impossible, were assertions about the contents of the draft report made for the purpose of advancing the plaintiff's application for further time to file its expert evidence. In my view, those assertions put the contents of the draft report in issue. That this was the case is illustrated by the submission made by the defendants' senior counsel, on that occasion, that the plaintiff could simply serve the report. The submission assumed (contrary to the assertions made by Mr Ebbs) that the report still had some evidentiary value and could be rectified later.

In this regard, although there are differences between the circumstances in this case and in Moustapha, I consider that the nature of the waiver in this case bears some similarities to the situation considered by Ward CJ in Eq in that case.

Conclusion

I am satisfied that the defendants are entitled to an order for the production of the draft report. The draft report was referred to in the Ebbs Affidavit and the defendants are entitled to an order for production pursuant to O 26 r 8(2) unless good cause is shown. Although privilege was claimed, any privilege was waived by the assertions made in paragraph 40 of the Ebbs Affidavit and the plaintiff's reliance on Mr Ebbs's evidence to support its application for an extension of time for the filing of expert evidence.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CN
Associate to the Judge
12 AUGUST 2025