Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd
[2013] QSC 82
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- Notable Unreported Decision
- Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd[2013] QSC 82
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Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd[2013] QSC 82
Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd[2013] QSC 82
SUPREME COURT OF QUEENSLAND
CITATION: | Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 |
PARTIES: | AQUILA COAL PTY LTD |
FILE NO/S: | BS 2197 of 2010 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland |
DELIVERED ON: | 28 March 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 March 2013 |
JUDGE: | Boddice J |
ORDER: | The parties are to prepare minutes of orders in accordance with these reasons. I shall hear the parties as to costs. |
CATCHWORDS: | PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – where the defendant resists disclosure of documents on the grounds of legal professional privilege, or irrelevance – where the plaintiff contends the documents are disclosable – whether the claims of legal professional privilege and irrelevance should be upheld Legal Profession Act 2007 (Qld) Uniform Civil Procedure Rules 1999 (Qld), r 213(3) Australian Hospital Care (Pindari) Pty Ltd v Duggan (No 2) [1999] VSC 131 Commonwealth v Vance (2005) 224 FLR 243; [2005] ACTCA 35 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 DSE (Holding) Pty Ltd v InTerTag Inc (2003) 135 FCR 151; [2003] FCA 1191 Dye v Commonwealth Securities Ltd (No 5) [2010] FCA 950 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67 Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404; [1996] HCA 34 Glengallan Investments Pty Ltd & Ors v Arthur Anderson & Anor (2001) QCA 115 Grant v Downs 135 CLR 674; [1976] HCA 63 GSA Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146; [2001] QSC 180 Guns Limited & Ors v Alexander Maher & Ors (2008) VSC 464 Rich v Harrington (2007) 245 ALR 106; [2007] FCA 1987 Ritz Hotel Ltd v Charles of the Ritz Ltd (No 4) (1987) 14 NSWLR 100 Seven Network Ltd & Ors v News Ltd & Ors [2005] FCA 142 Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) (2007) FCA 1445 Three Rivers District Council & Ors v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 Waterford v Commonwealth of Australia (1987) 163 CLR 54; [1987] HCA 25 |
COUNSEL: | O'Donnell QC with D Butler for the plaintiff/applicant Sofronoff QC SG with D Skennar for the defendant/respondent |
SOLICITORS: | King & Wood Mallesons for the plaintiff/applicant Clayton Utz for the defendant/respondent |
- The plaintiff and the defendant entered into a joint venture arrangement for the development of a proposed mine in Central Queensland. That joint venture arrangement has become the subject of dispute, resulting in the institution of these proceedings by the plaintiff against the defendant.
- The present application concerns a claim by the defendant that certain documents in its possession are properly to be withheld from disclosure on the grounds of legal professional privilege, or irrelevance. The plaintiff contends the documents are disclosable. The parties accept that in order to properly assess the defendant’s claims, it is appropriate I view each document. To that end, the defendant provided, as a confidential exhibit, a copy of each document in dispute.
The documents
- The 16 documents remaining in dispute all concern email communications between the defendant and its inhouse legal advisers.
- In respect of 8 of those documents, the defendant contends they are wholly privileged from disclosure, on the grounds of legal professional privilege. In respect of 5 of those documents, the defendant contends parts only of the documents are privileged, on the ground of legal professional privilege. In respect of the remaining 3 documents, the defendant contends parts only of those documents are properly to be withheld from disclosure, on the grounds of irrelevance.
The principles
- The doctrine of legal professional privilege is not a rule of evidence. It is a fundamental common law right.[1] As such, an overly narrow or technical approach should not be taken when assessing whether a communication will properly attract legal professional privilege.[2] If the Court is invited to inspect the documents, inferences may, where appropriate, be drawn from the documents themselves.[3]
- A document will attract legal professional privilege if it is a communication made or prepared for the dominant purpose of obtaining or providing legal advice (legal advice privilege), or to conduct or aid in the conduct of litigation in reasonable prospect (litigation privilege).[4] Privilege will also attach to documents which record earlier privileged communications.[5]
- Barwick CJ, in Grant v Downs[6] stated the relevant test thus:
“Having considered the decisions, the writings and the various aspects of the public interest which claim attention, I have come to the conclusion that the Court should state the relevant principle as follows:
A document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production and reasonable prospect, should be privileged and excluded from production.”
The dominant purpose is the “ruling, prevailing, or most influential purpose”.[7]
- Where the legal advisers are employees of the party to the litigation, legal professional privilege may still attach,[8] provided the claim relates to a qualified lawyer acting in the capacity of an independent professional legal adviser. Independence is crucial, as an important feature of inhouse lawyers is that at some point the chain of authority will result in a person who is not a lawyer holding authority, directly or indirectly, over the inhouse lawyer. The relevant question for consideration is whether the advice given is, in truth, independent.[9]
- In the case of inhouse lawyers, there is no presumption of a lack of independence. The burden of proof was explained by Gillard J in Australian Hospital Care (Pindari) Pty Ltd v Duggan (No 2):[10]
“[67]… once the client swears the affidavit of documents claiming legal professional privilege in a way which leads the Court to the conclusion that the claim is properly made, then the prima facie position is that the legal adviser was acting independently at the relevant time.
[68]It follows that if any party to the litigation disputes the claim for legal professional privilege then it has the evidentiary burden of establishing facts which prima facie rebut the presumption.
…
[70]If the party opposing the claim for privilege does establish facts which rebut the prima facie presumption then in the end result the party claiming privilege must establish the propriety and validity of the claim.
[71]The Court may, after considering the issues, reach the conclusion that the lawyer was acting independently and accordingly the privilege is upheld, or that the lawyer was not acting independently and accordingly there is no privilege, or the Court may reach a position where it is in doubt. If the latter stage is reached then the Court should inspect the documents to determine the propriety and validity of the claim.
[81]… the mere fact that the legal adviser is an employee of the client or that his duties may involve performing non-legal work do not establish that at the relevant time he was not acting independently. It is recognised that employees will perform non-legal work and it is an essential element of the establishment of the privilege that at the relevant time the employee was performing legal work.
[82]The fact of employment is relevant but the weight to be attached to that fact in considering independence will depend on all the circumstances.”
- An independent legal adviser brings a disinterested mind to bear on the subject matter of the legal advice.[11] If the personal loyalties, duties or interests of the inhouse lawyer do not influence the professional legal advice given, the requirement for independence will be satisfied.[12]
- Whether, in any particular case, the relationship is such as to give rise to the privilege is a question of fact. Its determination requires a consideration of whether the professional relationship secures to the advice an independent character, notwithstanding the employment of the legal adviser.[13]
Plaintiff’s Submissions
- The plaintiff submits that none of the documents are properly the subject of privilege. All of the emails are with the defendant’s inhouse lawyers, and none are headed “privileged”. Further, the only affidavit evidence as to the purposes for which each document was prepared was provided by Mr Jackson, a member of the defendant’s inhouse legal unit. He was not the sender of many of the communications. The plaintiff contends that evidence did not satisfy the requirements of rule 213(3), Uniform Civil Procedure Rules 1999 (Qld) that the affidavit be sworn by a person who “knows the facts giving rise to the claim” for privilege.
- The plaintiff further contends that Mr Jackson, on a number of occasions, identified the dominant purpose of the communication by reference to the recipient’s purpose. That is an irrelevant consideration. The claims for privilege are also “verbal formulae or rituals”, which will not necessarily attract privilege. Some of the documents may also be the subject of joint interest privilege, having regard to the relationship between the parties as joint venturers.
- As to the claims of irrelevance, the plaintiff submits that these claims must be viewed in the context of documents which have been partially disclosed by the defendant. If the document itself was considered relevant, great care must be taken in accepting a claim that a part of a relevant document is irrelevant.
Defendant’s Submissions
- The defendant submits the claims for legal professional privilege are properly made in all of the circumstances. The inhouse legal unit of the defendant had the necessary independence, and each of the documents concerns either the giving of advice by the defendant’s inhouse legal representatives, or the provision of instructions by the defendant to its inhouse legal advisers in circumstances where legal proceedings were a reasonable prospect.
- The defendant submits the documents the subject of a claim of irrelevance are plainly irrelevant to the matters in dispute.
Discussion
Generally
- A preliminary issue for determination is a contention by the plaintiff that as the defendant’s general counsel, Mr Milbourne, was not admitted as an Australian legal practitioner, none of the advice provided by the defendant’s inhouse lawyers, and none of the instructions provided to the inhouse lawyers, attracts legal professional privilege.
- The plaintiff contends that advice provided by a person who is not admitted to practice as a legal practitioner cannot be the subject of privilege. In support of that contention, the plaintiff relies on Glengallan Investments Pty Ltd & Ors v Arthur Anderson & Anor.[14] The plaintiff also relies on the observations of Holmes J (as her Honour then was) in GSA Industries (Aust) Pty Ltd v Constable.[15]
- The authorities relied upon by the plaintiff support a finding that legal professional privilege cannot attach to advice given by a person who is not admitted to practice anywhere as a legal practitioner. Those were the relevant facts considered in Glengallan and GSA. These authorities do not, however, support a contention that legal professional privilege cannot attach to advice given by inhouse legal representatives who are admitted to practice, but not in Australia.
- Legal professional privilege may attach to communications involving an inhouse lawyer who is a qualified lawyer admitted to practice elsewhere. In Ritz Hotel Ltd v Charles of the Ritz Ltd (No 4),[16] a claim for legal professional privilege in respect of legal advice given by a company employee, who was a qualified lawyer and member of the New York State Bar, was upheld. McLelland J found:
“The author of the document, Mr Morrazzo, is a qualified lawyer and member of the Bar of the State of New York and the Federal District Court for the Southern and Eastern Districts of New York. He is an expert of trade mark law. He is employed by Revlon Inc, the parent company of the second defendant, in what is called its Law Department, which consists of a group of attorneys and their support staff, whose function is to provide legal advice and counsel to the management of Revlon Inc and its subsidiaries …
I am satisfied that the sole purpose of the bringing into existence of this memorandum was to provide legal advice on these matters to Revlon Inc in connection with the proposed acquisition, that in doing so Mr Morrazzo was acting in his capacity as a professional legal adviser to the company, and that the memorandum was of a confidential nature.
It was submitted that because many of the trade marks were registered in foreign countries and that the litigation (or much of it) was in foreign Courts, Mr Morrazzo was not competent to give legal advice in relation to such matters, notwithstanding his legal qualifications in the United States.
I do not consider that legal professional privilege is as limited as this submission would suggest. … it seems to me that legal professional privilege is not confined to legal advice concerning or based on the law of a particular jurisdiction in which the giver of the advice has his formal qualification. For instance, I have no doubt that legal advice by a lawyer qualified in New South Wales on matters involving the law of, for example, Victoria of the United Kingdom, would, in appropriate circumstances, attract legal professional privilege. Similarly, and particularly in a field with such international ramifications as trade mark law, I see no reason why legal advice from a lawyer qualified in New York, concerning trade marks and trade mark litigation in another country, would not, in appropriate circumstances, attract legal professional privilege.”
- Ritz Hotel was referred to in GSA, without disapproval. Holmes J noted that Ritz Hotel concerned a lawyer who was admitted to practice “albeit in another jurisdiction”.[17]
- The authorities relied upon by the plaintiff do not support a finding that legal professional privilege cannot attach to the advice given by the defendant’s inhouse lawyers or to the instructions provided to those inhouse lawyers, simply because the defendant’s general counsel was not admitted as a legal practitioner in Australia.
- The provisions of the Legal Profession Act 2007 (Qld) (and their corresponding equivalents in the other jurisdictions in Australia) also do not support such a finding. That Act provides for the regulation of legal practitioners. It does not purport to regulate the availability of legal professional privilege. Further, the lack of a current practising certificate, whilst a very relevant factor in determining whether legal professional privilege exists in respect of advice given by inhouse legal representatives,[18] is not determinative of the existence of privilege.
- A conclusion that legal professional privilege can attach to the documents in question, notwithstanding that the defendant’s general counsel is not admitted as a legal practitioner in Australia, is consistent with the purpose of, and rationale behind, the doctrine of legal professional privilege.
- Legal professional privilege is the privilege of the client, not the lawyer. It exists even where the client erroneously believed the legal adviser was entitled to give the advice.[19] It would be contrary to the notion of the privilege being that of the client that the client should lose the privilege merely by reason that the legal adviser, who is admitted elsewhere, is not admitted in Australia.
- Legal professional privilege is afforded as it is in the public interest for clients to seek legal advice, and make frank disclosure in doing so, without fear of disclosure. There is a corresponding public interest in legal advisers being able to give full and frank advice, without fear of disclosure.[20] It would be contrary to that public interest if the privilege were to be lost merely by reason that the legal adviser, who is admitted to practice, is not admitted in Australia.
The documents
- Whether legal professional privilege attaches to any of these documents requires a consideration of the particular communications, the circumstance in which they were sent, the senders and the recipients, whether they were confidential communications, and whether the inhouse lawyers were sufficiently independent to allow legal professional privilege to attach to those communications.
- The determination of the claims also requires a consideration of the basis for the claim of privilege, as set out in the affidavits and evidence of Mr Jackson. The plaintiff contends that that evidence is seriously deficient, having regard to Mr Jackson’s lack of personal knowledge in respect of many of the documents, the general nature of the enquiries made by him, and the lack of specificity as to the persons he spoke to, if any, in relation to individual documents.
- I have given careful consideration to each of these matters, and the other relevant circumstances. I am satisfied Mr Jackson addressed the correct question when considering whether a claim for legal professional privilege ought to be made in respect of a particular document. I am also satisfied he considered that question in the context of the multiple communications to multiple recipients.
- The level of independence of the defendant’s inhouse legal team was also the subject of evidence by Mr Jackson. He said members of the legal team were independent in this work and were not subject to direction in respect of the giving of advice. I accept that evidence. Mr Jackson impressed me as a careful solicitor, well aware of his professional obligations and responsibilities.
- I am satisfied there is a sufficient level of independence to allow legal professional privilege to attach to instructions given to members of the defendant’s inhouse legal team, and to any legal advice given by that team, provided the communication is made for a requisite dominant purpose. I accept the defendant’s inhouse legal team acted as independent legal advisers without any personal loyalties, duties or interests influencing their professional legal advice.[21]
- Whilst Mr Jackson’s evidence is sufficient to properly raise claims for legal professional privilege in respect of each of the documents in issue, that evidence is not determinative of the correctness of those claims. It is necessary to consider those claims having regard to the content of each communication.
- Having regard to the nature of a claim for legal professional privilege, I shall only briefly, and generally, refer to the contents of the communications the subject of the claims for legal professional privilege.
Document 5
- This document contains a chain of emails, the last of which is an email dated 3 November 2009 from one of the defendant’s employees to Mr Milbourne. That email responded to an earlier email from Mr Milbourne. These communications were also emailed to various of the defendant’s commercial managers.
- By the time this email was sent, the plaintiff and the defendant had reached a stage where they were in dispute over a number of matters. Correspondence had already been exchanged in which the plaintiff had suggested the defendant’s actions were not in the best interests of the joint venture. The plaintiff had indicated an intention to protect its rights.[22]
- Mr Jackson asserts that document 5 is privileged as the communications within it contain instructions about the future of the defendant’s contractual relationships with the plaintiff, and associated matters.
- Generally, an email communication from a legal adviser seeking instructions, and an email communication in response thereto would properly be the subject of legal professional privilege, having regard to the circumstance that litigation was by this time in the contemplation of the parties.
- However, the plaintiff contends that Mr Milbourne was actively involved in making commercial decisions on behalf of the defendant, and was for a period both the defendant’s general counsel and a director of the defendant. The plaintiff relies on these factors as supportive of a contention that the dominant purpose of the email communications was commercial. It also relies on references, in the emails, to strategic considerations as supportive of that purpose. However, the use of that term is not determinative. It is a question of carefully considering the term, in the context of the particular communications.
- Inhouse legal advisers often provide legal advice in the context of commercial considerations. The fact that there may have been commercial considerations in play at the time of the communication does not, of itself, deprive the document of legal professional privilege.[23] The issue is the dominant purpose for which the communication was sent.
- Having considered the basis for the claim for privilege, the circumstances and contents of document 5, I accept that document 5 was brought into existence with the dominant purpose of seeking instructions in respect of litigation reasonably contemplated, and for the giving of legal advice. The communications are properly to be characterised as relating to the “rights, liabilities, obligations and remedies” of the defendant.[24]
- I uphold the claim for privilege in respect of document 5.
Document 6
- This document also contains a chain of emails between the defendant’s commercial managers and its inhouse legal team. The last email, dated 12 November 2009, is from the defendant’s manager to another commercial manager forwarding an email communication from Mr Jackson.
- The defendant contends document 6 has properly been withheld from disclosure as it is subject to legal professional privilege. The defendant also contends part of it is irrelevant.
- The claim for privilege is made on the basis that the dominant purpose of the communications was to seek instructions as to the need for legal advice in respect of a disagreement between the plaintiff and the defendant about contractual arrangements within the joint venture.
- Whilst Mr Jackson claims that was the dominant purpose of the communications, a consideration of the contents of the emails within document 6 do not support that conclusion. The email communications at the commencement of the chain are communications concerning commercial considerations. Mr Jackson’s involvement at the time was merely as a consequence of those communications being copied to him. He was not a primary recipient of it. His response, and the subsequent responses thereafter, are consistent with these communications primarily involving commercial considerations.
- Document 6 is not subject to legal professional privilege.
- The claim that part of the document is irrelevant should also be dismissed. Irrelevance is not to be determined solely from the viewpoint of a defendant. Regard must also be had to the potential forensic advantage a line of communication may provide for an opposing party in litigation.
- Having considered the document, I am satisfied the document is relevant, and ought to be disclosed to the plaintiff.
Document 7
- This document contains a chain of email communications between the defendant’s inhouse legal team and its commercial managers. The last email in the communication chain is an email dated 13 November 2009 from a representative of the defendant forwarding earlier email communications from a member of the defendant’s inhouse legal team to another representative of the defendant.
- A claim for privilege is made on the grounds the document contains a record of legal advice provided to the commercial managers, together with instructions, in relation to a disagreement between the plaintiff and the defendant about contractual arrangements for the joint venture.
- A communication between the defendant’s legal representatives and its commercial managers, which contains legal advice, would prima facie be the subject of legal professional privilege, provided that advice is sufficiently independent.
- Having considered the basis for the claim, the circumstances and the contents of document 7, I am satisfied the claim for legal professional privilege is properly made. The document records legal advice provided by a member of the defendant’s inhouse legal team. Such advice was provided in circumstances which were sufficiently independent to satisfy the requirement for a claim for legal professional privilege. I uphold the claim for privilege in respect of document 7.
Document 10
- This document is no longer the subject of a claim of legal professional privilege. However, only a redacted version of the document has been disclosed by the defendant. The defendant contends the balance of the document is irrelevant.
- Document 10 is an email communication from a representative of the defendant to the defendant’s commercial managers, and Mr Jackson. It is dated 18 November 2009. It is headed “Review of strategy team progress for the week”. The parts which are claimed to be irrelevant are details listed under specified headings. The headings have been disclosed in the redacted version.
- A claim that part of a document the subject of disclosure is properly to be withheld from disclosure on the grounds of irrelevance is different to a claim that a document is properly withheld from disclosure on the grounds of legal professional privilege. The former is only allowed as a matter of practice, generally to avoid infringement of privacy and confidentiality.[25]
- Where, as here, a claim is made that part only of a document is irrelevant, a relevant consideration is to ensure that the redaction of irrelevant parts of the document do not creates gaps affecting the intelligibility or meaning of the remaining portions of the document which are produced for inspection. The onus lies on the party resisting production of the whole of the document to establish an appropriate basis for doing so.[26]
- Having considered the document, and the issues in dispute between the parties, I am satisfied the document ought to be produced in its entirety. The redacted parts render the document as disclosed, unintelligible in many respects. Further, there is no suggestion that the redacted parts are confidential or otherwise privileged.
- The defendant has not satisfied its onus of establishing that a document, conceded to be otherwise relevant, ought not to be disclosed in its entirety.
Document 15
- This document contains a chain of emails between the defendant’s inhouse legal team and its commercial managers. The last email in the chain, dated 19 November 2009, is from a representative of the defendant to a commercial manager and Mr Jackson and Mr Milbourne.
- The claim for privilege is made on the ground that the chain of emails contains communications made for the dominant purpose of requesting instructions to provide legal advice, and providing the inhouse legal team with instructions, in circumstances where litigation was anticipated in respect of the joint venture arrangements.
- A consideration of the document reveals that two of the three primary recipients of the substantive emails are Mr Milbourne and Mr Jackson. Further, they were being asked to provide legal advice in the context of anticipated litigation.
- Having considered the basis for the claim, the circumstances, and the contents of document 15, I accept the dominant purpose of the communication was the provision of instructions, and the seeking of legal advice in the context of anticipated litigation. The claim for privilege is upheld in respect of document 15.
Document 21
- This document contains a chain of emails between the defendant’s inhouse legal team and its commercial managers. The last email in the chain is dated 19 November 2009.
- The defendant has disclosed a redacted version of this document. The redacted parts are claimed to be the subject of legal professional privilege as they represent communications made for the dominant purpose of providing the defendant’s inhouse legal team with instructions in respect of a disagreement between the plaintiff and the defendant in circumstances where litigation was anticipated in respect of that disagreement.
- The redacted part concerns an email communication from Mr Jackson to representatives of the defendant in response to an email communication to Mr Jackson and Mr Milbourne enclosing the earlier emails in the chain.
- Having considered the basis for the claim, the contents of the document, and the circumstances in which it was sent, I uphold the claim for legal professional privilege in respect of the redacted portions of the document. I accept those redacted parts contain communications sent for the dominant purpose of providing instructions with respect to matters the subject of anticipated litigation.
Document 23
- This document contains a chain of emails between the defendant’s inhouse legal team and its commercial managers. The last email in the chain is dated 19 November 2009.
- A redacted version of the document was disclosed on 27 October 2011. The defendant claims legal professional privilege in respect of the redacted parts on the basis that those communications were made for the dominant purpose of requesting instructions to provide legal advice concerning the dispute between the plaintiff and the defendant, and for the purposes of obtaining legal advice from the inhouse legal team, when litigation was anticipated between the parties.
- The redacted parts of the email concern email communications by the defendant’s representatives to Mr Milbourne, Mr Jackson and others. The last in time of those emails was in response to an email from Mr Milbourne.
- Having considered the basis for the claim, the contents of those communications, and the circumstances in which they were sent, including the recipients thereof, I accept the dominant purpose of the relevant communications was to provide instructions, and to receive legal advice, in respect of anticipated legal proceedings. I uphold the claim for legal professional privilege in respect of the redacted document.
Document 26
- This document contains a chain of emails between the defendant’s inhouse legal team and its commercial managers. The last email in the chain is dated 19 November 2009.
- The defendant maintains a claim of legal professional privilege in respect of the entire document. It claims the chain of emails was made when litigation in respect of the joint venture was anticipated, and the dominant purpose of the communications was to request legal advice, and give instructions for the purpose of that legal advice.
- The last email in time was sent to multiple recipients including Mr Jackson and Mr Milbourne. It was sent in response to an email from a representative of the defendant to Mr Jackson, Mr Milbourne and other recipients. Those email communications form part of the chain which is document 23.
- Having considered the basis for the claim, the contents of document, and the circumstances in which the communications were sent, I accept the communications the subject of the claim were sent for the dominant purpose of obtaining legal advice in respect of anticipated litigation. I uphold the claim for legal professional privilege.
Document 29
- This document contains a chain of emails between the defendant’s inhouse legal team and its commercial managers. The last email is dated 20 November 2009. The defendant maintains a claim for privilege in respect of a redacted version of the document provided to the plaintiffs on 27 October 2011.
- The redacted parts of the document contain, as the last email in time, an email from Mr Milbourne to Mr Jackson and various commercial managers of the defendant. It also contains other emails from, and to, Mr Milbourne and Mr Jackson.
- Having considered the basis for the claim, the contents of the redacted document, and the circumstances in which the communications were sent, I accept the communications were sent for the dominant purpose of requesting legal advice in respect of anticipated litigation, and for the provision of legal advice concerning that anticipated litigation. I uphold the claim for legal professional privilege in respect of the redacted parts of the document.
Document 33
- This document contains a chain of emails between the defendant’s inhouse legal team and its commercial managers. The last email, dated 4 December 2009, is between representatives of the defendant.
- Apart from the top email, the email communications within the document contain emails to and from Mr Jackson. Each is marked “confidential”. The top email in the chain merely forwards those emails to a representative of the defendant. It contains no other material.
- The defendant claims the last email in time is irrelevant, and that the remaining emails are the subject of legal professional privilege as the communications were made for the dominant purpose of providing legal advice, and requesting instructions to provide legal advice, in circumstances where litigation was anticipated between the plaintiff and the defendant.
- Having considered the basis for the claim, the contents of the communications, and the surrounding circumstances, I accept those communications were sent for the dominant purpose of providing legal advice or requesting instructions to provide such legal advice. I uphold the claim for legal professional privilege.
- As the top email merely forwards those emails, once the claim for privilege is upheld, that email is irrelevant. I uphold the defendant’s claim of irrelevance in respect of the last email in the claim.
Document 44
- This document contains an email between the defendant’s inhouse legal team and its commercial managers dated 7 January 2010. The defendant maintains a claim for legal professional privilege in respect of a redacted version of the document provided to the plaintiff on 27 October 2011.
- The redacted parts of the document relate to email communications from Mr Jackson to outside solicitors, and commercial managers of the defendant. The redacted parts of the document contain communications to, and from, Mr Jackson, a member of the defendant’s inhouse legal team. They relate to the provision of legal advice, and instructions in relation thereto.
- The claim for privilege is made on the basis the email was sent for the dominant purpose of instructions to obtain legal advice about the disagreement between the plaintiff and the defendant, in circumstances where litigation was anticipated between the parties.
- Having considered the basis for the claim, the unredacted document, and the surrounding circumstances, I accept those communications were sent for the dominant purpose of obtaining legal advice, in the context of anticipated litigation. I uphold the claim for legal professional privilege.
Document 47
- This document contains a chain of emails between the defendant’s inhouse legal team and its commercial managers. The last email is dated 18 January 2010.
- Whilst this document was initially the subject of a claim for legal professional privilege, that claim is no longer maintained by the defendant. However, the defendant asserts that parts of the chain are irrelevant. Accordingly, the defendant has only produced a redacted version of that document.
- The document is headed “Minutes – Aquila Strategy Meeting 12-01-10”. In its redacted version, it contains headings and details of actions in respect of those headings. The details under many of the headings have been redacted on the basis of irrelevance. There is no suggestion that the redacted parts are confidential or otherwise privileged.
- Having considered the document, and the issues in dispute between the parties, I am satisfied the document ought to be produced in its entirety. The claim of irrelevance must be viewed against the background that the defendant accepts that parts of the document are relevant to the issues in dispute. The redacted parts render the document as disclosed unintelligible in many respects.
- The defendant has not satisfied its onus of establishing that a document conceded to be otherwise relevant ought not to be disclosed in its entirety.
Document 48
- This document contains an email communication between the defendant’s inhouse legal team and a representative of the defendant. It is dated 18 January 2010. The defendant claims the email is subject to legal professional privilege as it requested instructions about legal advice in respect of issues between the plaintiff and the defendant which were the subject of anticipated litigation.
- That email was later forwarded by a representative of the defendant to other representatives of the defendant. The defendant asserts that the email forwarding it is irrelevant.
- The email communication from Mr Jackson to representatives of the defendant contained a document headed “Confidential and privileged. Prepared for the purpose of preparing legal advice and in anticipation of litigation”. Whilst that heading is not conclusive, it indicates that at the time Mr Jackson forwarded the material he intended it be a confidential communication for the purposes of preparing legal advice and in anticipation of litigation.
- Having considered the basis for the claim, the contents of the document and the surrounding circumstances, I accept the dominant purpose of sending the substantive email was to obtain instructions for the purpose of preparing legal advice, and in anticipation of litigation. I uphold the claim for privilege.
- Once a claim of privilege is upheld in respect of the substantive email, the last email forwarding that communication, without comment, is irrelevant to the proceedings. It need not be disclosed to the Plaintiff.
Document 59
- This document contains an email between the defendant’s inhouse legal team and its commercial managers. The email is dated 16 February 2010.
- Whilst this document was the subject of a claim for legal professional privilege, no such claim is now maintained by the defendant. However, only a redacted version of the document has been disclosed on the basis the redacted parts are irrelevant.
- By disclosing the document, the defendant accepts that part of the document is relevant to the issues in dispute in the proceedings. Having considered the document, I am satisfied the redacted parts should also be disclosed.
- The defendant has not satisfied its onus of establishing that a document conceded to be otherwise relevant ought not to be disclosed in its entirety.
Document 62
- This document contains a chain of emails between the defendant’s inhouse legal team and its commercial managers. The last email is dated 25 February 2010. The substantive email in the chain was sent to Mr Milbourne, Mr Jackson and other commercial managers. It contains a draft letter.
- The defendant claims the last email is irrelevant and that the remaining email in the chain is privileged on the ground that it was sent when litigation was anticipated between the parties, and was made for the dominant purpose of forwarding draft correspondence to the commercial managers concerning a disagreement between the plaintiff and the defendant in respect of the joint venture arrangements.
- Having considered the basis for the claim, the contents of the substantive email, and the surrounding circumstances, I accept the dominant purpose of sending the substantive email was to obtain instructions in respect of the draft letter in circumstances where litigation was anticipated between the parties in relation to aspects of the joint venture. I uphold the claim for legal professional privilege.
- The last email in the chain forwarded the substantive email to a representative of the defendant, without comment. Once it is accepted that the substantive email is properly the subject of legal professional privilege, the email forwarding it is irrelevant. It need not be disclosed to the plaintiff.
Document 63
- This document is an email communication between the defendant’s inhouse legal team and its commercial managers. The email is dated 5 March 2010.
- The defendant maintains a claim for legal professional privilege in respect of a redacted form of the document, as disclosed to the plaintiff on 27 October 2011. The redacted part relates to one sentence.
- The defendant contends this sentence is privileged on the grounds that the communication was made when litigation was anticipated, and was made with a view to instructing the legal team to provide legal advice in respect to that anticipated litigation, and contained a record of that legal advice.
- Having considered the basis for the claim, the contents of the communication and the surrounding circumstances, I accept the redacted part of the document contains a record of legal advice, and that the communication was sent for the dominant purpose of obtaining legal advice. I uphold the claim for privilege in respect of the redacted part of that document.
Conclusions
- The defendant has established that documents 5, 7, 15, 21, 23, 26, 29, 33, 44, 48, 62 and 63 are properly the subject of claims of legal professional privilege. The defendant has failed to establish that document 6 is properly the subject of a claim for legal professional privilege.
- The defendant has failed to establish that the redacted parts of documents 10, 47 and 59 are irrelevant.
- The parties are to prepare minutes of orders in accordance with these reasons. I shall hear the parties as to costs.
Footnotes
[1] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543.
[2] DSE (Holding) Pty Ltd v InTerTag Inc (2003) 135 FCR 151 at [31].
[3] Dye v Commonwealth Securities Ltd (No 5) [2010] FCA 950 at [32].
[4] Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at [2]; [61].
[5] Dye at [8 (4)].
[6] 135 CLR 674 at [677].
[7] Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416.
[8] GSA Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146 at [14].
[9] See generally Re Proudfoot and Human Rights and Equal Opportunity Commission (1992) 28 ALD 734 at 740.
[10] [1999] VSC 131.
[11] Rich v Harrington (2007) 245 ALR 106 at 115.
[12] Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) (2007) FCA 1445 at 35.
[13] Waterford v Commonwealth of Australia (1987) 163 CLR 54 at 62.
[14] (2001) QCA 115 at 16.
[15] (2002) 2 Qd.R 136 at [13]-[17].
[16] (1987) 14 NSWLR 100 at 102.
[17] GSA Industries at [14].
[18] Commonwealth v Vance (2005) 224 FLR 243.
[19] Glengallan at [18]; Grofam Pty Ltd v ANZ Banking Group Ltd (1993) 45 FCR 445.
[20] See, generally, Waterford.
[21] Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) (2007) FCA 1445 at [35]-[36].
[22] Affidavit of Timothy Vernon Jackson filed 1 March 2013, Exhibit TJ5, letter 7 October 2009.
[23] Seven Network Ltd & Ors v News Ltd & Ors [2005] FCA 142 at [4]-[5].
[24] Three Rivers District Council & Ors v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 at 651.
[25] See, generally, Menkins v Wintour (2007) 2 Qd R 40 at [11]-[14].
[26] Guns Limited & Ors v Alexander Maher & Ors (2008) VSC 464 at [33].