Supreme Court of WA|2007-10-23|Before: Martin CJ

AREVA NC (AUSTRALIA) PTY LTD -v- SUMMIT RESOURCES (AUSTRALIA) PTY LTD [2007] WASC 276 (23 October 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : AREVA NC (AUSTRALIA) PTY LTD -v- SUMMIT RESOURCES (AUSTRALIA) PTY LTD [2007] WASC 276

BETWEEN : AREVA NC (AUSTRALIA) PTY LTD (ACN 003 337 782)

SUMMIT RESOURCES (AUSTRALIA) PTY LTD (ACN 009 188 078)

Practice and procedure - Subpoena - Legitimate forensic purpose - Whether O 36B provides for a 'subpoena to be returnable other than in relation to a trial' - Legal professional privilege - Doctrine of implied waiver - Turns on own facts

Rules of the Supreme Court 1971 (WA), O 1 r 4B, O 29, O 29A, O 36 r 3, O 36 r 12, O 36B, O 58 r 21

The subpoena should issue and extend to all categories in the summons except category 4, which should be modified to exclude from production any document that has been discovered in CIV 2021 of 2006.

In relation to categories 1, 3 and 4, privilege covering documents within those categories has been waived, and the documents should be made available for inspection.

In relation to category 2, upon return of the subpoena it will be open to the first defendant to claim privilege from inspection of those documents, and open to the plaintiff to argue any privilege in relation to those documents has been waived.

(This judgment was delivered extemporaneously on 23 October 2007 and has been edited from the transcript)

1 This is an application brought by the plaintiff Areva NC (Australia) Pty Ltd (Areva), for leave to serve a subpoena directed to Mr Ian Michael Lishman, returnable prior to any hearing of this matter. The subpoena would require Mr Lishman to produce four categories of documents. For the purposes of the summons and the subpoena, the expression '5 July letter' is defined to mean the letter dated 5 July 2007 from Cochrane Lishman to Mr Mal Randall and Mr David Berrie, a copy of which was an attachment to a letter dated 10 August 2007 from Cochrane Lishman to Mr Ron Forster at Minter Ellison, including any drafts of that letter.

2 Using that terminology, the categories of documents that are proposed be produced pursuant to the summons include firstly, all drafts of the 5 July letter; secondly, all documents evidencing or recording any instructions given to Cochrane Lishman by any person to provide strategic advice to Summit Resources Ltd in connection with the Supreme Court proceedings CIV 2021 of 2006; thirdly, all documents evidencing or recording any instructions given to Cochrane Lishman by any person in relation to the preparation and content of the 5 July letter; and fourthly, all documents evidencing or recording any material or information relied upon by Michael Lishman or any person assisting him in the preparation of the 5 July letter.

3 During the course of argument, counsel for Areva sought to modify the categories of documents sought to be included within the subpoena, to include specifically a file held by Mr Lishman entitled 'Summit Re Isa Uranium Joint Venture', and also to qualify the fourth category of documents so as to exclude from production documents which have been discovered in the course of the proceedings being CIV 2021 of 2006. I will return to those modifications in due course.

4 The subpoena is proposed to be issued in the context of substantive proceedings which are brought pursuant to a number of sections of the Corporations Act 2001 (Cth) (the Act), including ss 233 and 237, and in which, amongst other things, an order is sought pursuant to s 237 of the Act to the effect that Areva be granted leave to intervene in proceedings brought by the first defendant in these proceedings, Summit Resources (Australia) Pty Ltd, against the second and third defendants in these proceedings, Resolute Ltd and Mount Isa Uranium Pty Ltd respectively. Those other proceedings are CIV 2021 of 2006. The fourth defendant in these proceedings is Summit Resources Ltd, which is the parent company of the first defendant, Summit Resources (Australia) Pty Ltd.

5 The background to those substantive proceedings, and an important part of the history that precedes this application, is to be found in my decision in proceedings that were brought pursuant to s 247A of the Act, being my decision in Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 207. These reasons should be read in conjunction with the reasons which I gave in that case. That course will avoid the need for me to repeat much of the material which is to be found in those reasons.

6 The context of today's hearing is that, on a previous occasion when this matter came before me, I directed that the party to whom the subpoena was sought to be directed, Mr Lishman, be served and given an opportunity to put on evidence, file submissions and appear in opposition to the application to issue the subpoena. Mr Lishman has taken those opportunities.

7 This is a departure from normal practice and process. Normal practice and process would be to issue the subpoena, await any application by the party to whom the subpoena was directed to set it aside as an abuse of process or on some other ground and, in the event that the subpoena was not set aside, to await its return and then entertain, upon the return of the subpoena, any claim for privilege from inspection based upon grounds like legal professional privilege.

8 My intention in making the directions which I made and in providing the parties to these proceedings with the opportunity to put on evidence and file submissions was to attempt to conflate the normal process so as to reduce the number of occasions upon which these issues would have to be heard and determined with a view to expediting the ultimate resolution of these proceedings. It seems, for reasons that I need not go into, that my ambitions in that regard will only be partially successful. That is a matter to which I will return.

9 The summons brought by Areva was initially supported by an affidavit of Mr Ivantsoff, sworn on 28 September, which deposes to the context of the application and the reasons why it was brought. In addition I have received two affidavits from Mr Lishman, they being his affidavits of 12 October and 22 October and in addition a supplementary affidavit from Mr Ivantsoff and further affidavits filed on behalf of Summit from Mr Benson and Mr O'Hara. It is, I think, unnecessary for me to refer to much of that material for the purposes of these reasons.

10 The primary focus of the evidentiary issues that arise in respect of this application is upon the matters to which Mr Lishman deposes. In his two affidavits, he refers to the processes that led up to the production of his letter of 5 July 2007 and, in his supplementary affidavit, identifies certain files which are in his possession and essentially asserts, in very general and unspecific terms, claims that might sustain a claim for privilege on behalf of Summit in relation to at least some of the materials on those files.

11 For reasons which I will develop it is, I think, unnecessary to go into the detail of much of that affidavit other than to observe at this stage that the affidavit does not support a claim for legal professional privilege made in the ordinary way - that is to say, by the identification of each particular document in respect of which privilege is sought, and establishing that the dominant purpose for which the document came into existence was for the purpose of obtaining legal advice.

12 The principles that govern procedural issues relating to the return of subpoenas, and particularly those that are to be returned prior to trial, have been enunciated in a number of decisions in this Court. The first to which I will refer is the decision of the Full Court in the case of Stanley v Layne Christensen Co [ 2004] WASCA 50.

13 In that case, Heenan and Miller JJ adopted observations made by Master Sanderson in respect of the requirement that there be a legitimate forensic purpose to be served by the issue of such a subpoena. Their Honours observed (at [9]):

On the basis of this evidence the learned Master concluded that the first and second respondents had a legitimate forensic purpose for issuing the subpoena to CS to require her to produce copies of all affidavits in her possession filed in the Family Court proceedings. The necessity for there to be a 'legitimate forensic purpose' in such circumstances is well established by many authorities including Freid & Ors v National Australia Bank Ltd & Ors (2000) 175 ALR 195 per Weinberg J at [29] and [30] and Apache Northwest Pty Ltd & Ors v Western Power Corporation (1998) 19 WAR 350 at 374. In concluding that a legitimate forensic purpose had been established for the first and second respondents to issue a subpoena requiring the production of copies of the affidavits in the Family Court proceedings the learned Master identified the principles which regulated the decision which he was required to make as follows:

'There are, I think, four points of principle which emerge from the cases. They are:

(1) A legitimate forensic purpose will be established if a document gives rise to a line of enquiry which is relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination: see Apache Northwest Pty Ltd & Ors v Western Power Corporation (1998) 19 WAR 350 at 374; National Employers' Mutual General Insurance Association Ltd v Waind & Anor [1978] 1 NSWLR 372 at 385; Maronis Holdings Ltd & Ors v Nippon Credit Australia Ltd & Ors [2000] NSWSC 138; (2000) 18 ACLC 609 at 613 - 614.

(2) In assessing whether a legitimate forensic purpose exists in relation to documents sought on an early return of subpoena, it must be borne in mind that the necessity for having a document to fairly dispose of the issues at trial might well not become apparent before trial. It may, for example, become apparent when a document is used in cross-examination to refute unforseen evidence-in-chief. Thus, whether a document is "necessary" to fairly dispose of proceedings is to be understood in the broad sense of embracing any document which has value, in the sense of at least apparent relevance, and fairly disposing of proceedings, even if it might not readily be seen, at the pre-inspection stage, necessarily to be admissible in evidence: see Apache Northwest (supra) at 376. Cases will be rare in which, prior to production of documents, a subpoena will be set aside as an abuse of process on the ground the documents by description are manifestly irrelevant to the subject proceedings, or are incapable of bearing upon matters of credit pertinent to the proceedings: see Brand v Digi-Tech [2001] NSWSC 425.

(3) At least one object of the rule permitting early return of subpoenas is to appraise the parties of the strengths and weaknesses of their case at an early stage. Hence, no narrow view as to the legitimate purposes of a subpoena ought to be taken: see Khanna v Lovell White Durrant [1995] 1 WLR 121 at 123.

(4) There is no requirement that to avoid the stigma of fishing, a party must already by in possession of some evidence before issuing a subpoena. Historically the concept of fishing was not concerned with the prior possession of evidence, but rather the prior pleading of issues for which the evidence sought would be relevant: see Bailey & Ors v Beagle Management Pty Ltd & Ors [2001] FCA 60; (2001) 105 FCR 136 at 143 - 144; Chapman v Luminis Pty Ltd [2001] FCA 1580 at [48]. In the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available: see Bailey (supra) at 143.'

We agree, with respect, that the learned Master correctly identified and addressed the principles upon which a determination of whether or not the subpoena issued to CS should be allowed to stand. Further, and again with respect, we consider that the learned Master was correct in his conclusion that in the light of the evidence before him in the affidavit of Mr Connolly there was justification for the issue of this subpoena insofar as it required the production to the court of copies in the possession of CS of affidavits which had been filed in the Family Court proceedings.

14 A similar approach was taken by the Court of Appeal in the case of Commonwealth of Australia v Albany Port Authority [2006] WASCA 185. In that case, before referring to the passage from Stanley which I have set out, Steytler P observed (at [17] - [18]):

In practice, subpoenas are sealed as of right when made returnable at the trial of actions (see, generally, Seaman Civil Procedure Western Australia at [36.12.1]). However, they may only issue returnable before trial with the leave of the Court. Order 36 r 12(4) of the Rules of the Supreme Court 1971 (WA) ('Rules') provides, in this respect that:

'With the leave of the Court a writ of subpoena duces tecum may require the person to produce the document or object concerned to the Court on a date before the date of the trial so that the party suing out the writ may inspect the document or object.'

The order made by Master Sanderson relied upon this rule.

It is not in dispute that, before the Master could make an order pursuant to O 36 r 12(4), he was required to be satisfied that the subpoenas were issued for a legitimate forensic purpose: see, for example, Fried v National Australia Bank Ltd [2000] FCA 911; (2000) 175 ALR 194 at 200 [29]; Darbyshire v Gilbert [2006] WASCA 13; (2006) 31 WAR 558 at [14] and Stanley v Layne Christensen Co [2004] WASCA 50 at [9]. In Australian Gas Light Co v Australian Competition & Consumer Commission [2003] FCA 1101; [2003] ATPR 41-956 at [8] (cited with approval in Darbyshire at [13]), French J, speaking of O 27 r 6 of the Federal Court Rules 1974 (Cth), said in this respect that:

'It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resisting its issue, that may also be a practical factor to be weighed.'

15 In Commonwealth v Albany, Pullin JA observed (at [68]):

This provision requires the Court to consider more than the early return date. The authorities are clear that before leave is granted under O 36 r 12(4), the proposed subpoenas must be examined and the Court satisfied that there is a legitimate forensic purpose for the subpoenas. See Darbyshire v Gilbert [2006] WASCA 13; (2006) 31 WAR 558 at [13] - [15] and Stanley v Layne Christensen Co [2004] WASCA 50 at [9].

16 These decisions seem to me to establish the proposition that, although a court will start from the presumption that the subpoena sought to be issued will require the production of documents or evidence which are relevant to issues that arise in the case, where that presumption is put in issue or it is asserted that the subpoena is being issued for some collateral or improper purpose, the Court will require to be satisfied that there is some legitimate forensic purpose to be served by the issue of the subpoena, before the subpoena is issued.

17 Another way in which that issue might arise is by way of the alternative process whereby the party served with the subpoena may move to set it aside on the ground of abuse of process. Abuse of process would be made out if it could be established that the subpoena served no legitimate forensic purpose.

18 Those cases in this Court to which I have referred were concerned with O 36 r 12(4) of the Rules of the Supreme Court 1971 (WA) (the Rules) as it was, which required a party seeking to issue a subpoena returnable prior to trial to obtain the leave of the Court prior to the issue of such a subpoena. That rule no longer applies, having been removed and replaced by O 36B.

19 Under O 36B r 3, subpoenas may be issued in a variety of circumstances. Under O 36 r 3(6), they may be returned on the date of the trial or on any other date as permitted by the Court. There is therefore no longer any requirement that the leave of the Court be obtained for the issue of a subpoena returnable at a date other than trial. Rather, the Rules confer a general discretion upon the Court as to the date upon which the subpoena is to be returned.

20 In my opinion, the present terms of the Rules do not support the proposition that an applicant for a subpoena returnable prior to trial has some onus to discharge over and above an applicant for a subpoena returnable at trial. As I have observed, all subpoenas must be issued for a legitimate forensic purpose. Such a purpose will be assumed unless it is put in issue through one or other of the proceedings to which I have referred.

21 The authorities to which I have referred strongly support the conclusion that O 36B should be read in the context of the overall case management processes of the Court, being the processes embodied in O 29 and O 29A. That view receives further support from O 1 r 4B.

22 The authors of Civil Procedure Western Australia, Vol 1, have included in their commentary on O 36B the proposition that the rule 'does not provide for a subpoena to be returnable other than in relation to a trial' (at [36B. O.2]). No authority is supported for that proposition. It is not supported by either the language of the rule or by the authorities to which I have referred. Those authorities establish that a subpoena will be issued if the documents which it would require to be produced serve any legitimate forensic purpose, whether or not that purpose is served in connection with a trial. For example, those authorities establish that one of the legitimate forensic purposes for which subpoenas may be used is to enable a party to assess the strength of its case for the purposes of assessing whether or not it should consider settlement of the case. That is plainly a purpose not connected with a trial.

23 Consistently with the authorities to which I have referred, the legitimate forensic purpose which a subpoena must serve includes a broad range of forensic considerations, and purposes including all the considerations and purposes that are relevant to the management of cases prior to trial, including preparation for mediation and the encouragement of settlement, given the public interest in the encouragement of the early settlement of cases.

24 Reliance has been placed in argument before me on the decision of the Court of Appeal in Darbyshire v Gilbert [2006] WASCA 13; (2006) 31 WAR 558. There are passages in that judgment that are entirely consistent with the other authorities to which I have referred and which support the broad approach which should be taken to the question of whether a legitimate forensic purpose is served by the issue of a subpoena.

25 However, the case has been relied upon by the authors of Civil Procedure Western Australia at least, to support a more restrictive approach to the issue of subpoena.

26 That may be due to a failure to appreciate the particular and unusual factual circumstances in which that case arose. The case was an interlocutory appeal brought on very shortly before the hearing of an application under the Inheritance (Family and Dependants Provision) Act 1972 (WA) which was to be heard on the basis of affidavit evidence only. All the affidavit evidence to be relied on at trial had been exchanged. None of the deponents to any of the affidavits had been required to attend for cross-examination. To that extent, the Court's conclusion that the production of the documents under the subpoena would serve no legitimate forensic purpose because they would not be able to be used at the trial is explained by reference to the peculiar factual context in which the question arose.

27 To the extent that the decision might be taken to support a broader proposition, that no subpoena should be returned in proceedings in Chambers unless and until there has been an order under O 58 r 21 allowing evidence to be adduced other than by affidavit or for the cross-examination of deponents, such a proposition would be inconsistent with the other decisions of the Court of Appeal to which I have referred by restricting the forensic purpose which a subpoena might serve to purposes limited to use at trial.

28 However, I think the better view is that Darbyshire v Gilbert does not support such a proposition, and is to be construed in the context of its own particular facts and circumstances. The Court's conclusion, to the effect that no legitimate forensic purpose would be served by the production of the documents, was entirely justifiable on the evidence before it, given the imminence of the trial. There does not appear to have been any suggestion in that case that the documents could have served any forensic purpose other than being used at the trial. The Court's finding that they could not be used at trial therefore resolved the issue.

29 In this case, the first question which I need to address is whether a legitimate forensic purpose would be served by production of the documents which have been identified. If the answer to that question is yes, then subsidiary questions arise in relation to legal professional privilege and the waiver of that privilege. If the answer to the first question is no, it follows that any subpoena issued to compel production of documents that would not serve any legitimate forensic purpose and would be an abuse of process, and I should not direct that the subpoena issue.

30 The context for the consideration of whether the subpoena would serve a legitimate forensic purpose in this case is, as I have already observed, very much bound up in the issues that are the subject of my earlier decision regarding the s 247A application. When reference is had to those reasons, it will be seen that the 5 July letter, which is expressly referred to in three of the four categories of document that are sought on subpoena, formed a central part of the issues that were debated in the course of the hearing of the s 247A application.

31 It is clear from the argument that was advanced to me in that case that the issues that are addressed in the 5 July letter, which include issues relating to the merits of success of the substantive proceedings commenced by Summit Resources (Australia) Pty Ltd, being CIV 2021 of 2006, and the commercial utility of success in those proceedings will lie at the heart of the determination of the applications made by Areva under ss 233 and 237 of the Act.

32 I should also add that the 5 July letter has an additional possible forensic significance in the context of the s 237 proceedings, because of the effect of s 237(3). There will, as I understand it, be an issue on the substantive hearing of the proceedings as to the applicability of that subsection, but it would be premature to attempt to determine that issue now and in the context of these proceedings.

33 The significance of the 5 July letter is that it was submitted in the course of the s 247A proceedings before me, that the effect of the letter was to give rise to the presumption referred to in s 237(3) and, indeed, to give rise to such a strong presumption that I should dismiss the application being brought under s 247A of the Act on the basis that the application under s 237 was hopeless and doomed to fail.

34 I therefore infer that both the substantive issues addressed in the 5 July letter and the fact of the letter itself are likely to be a significant issues in the proceedings brought under ss 233 and 237.

35 I conclude, therefore, that in relation to the first, third and fourth categories of documents, a legitimate forensic purpose for the production of these documents is readily established. In relation to the second category of documents, the issue is not so clear because that category is not confined to issues addressed in the letter of 5 July. However, I would exclude the word 'strategic' from the enunciation of that second category of documents because it seems to me to be arguably ambiguous, and perhaps hyperbolic.

36 The second category thus modified comprise documents evidencing or recording any instructions given to the firm of which Mr Lishman is a partner, in relation to advice given to Summit in connection with the substantive proceedings commenced by Summit, being CIV 2021 of 2006.

37 As I have observed, the prospect of success in those substantive proceedings and the commercial utility of those substantive proceedings is at the heart of the issues that are likely to arise in the proceedings brought by Areva under s 233 and s 237 of the Act. Contrary to submissions that were put to me, this is not one of those cases in which it is too early to say what issues are likely to arise in the course of proceedings and therefore too early to conclude that the documents sought in answer to a subpoena serve a legitimate forensic purpose.

38 It is clear enough, from the issues which were enunciated in the course of the proceedings before me under s 247A of the Act, that issues relating to the prospects of success in the substantive litigation, being CIV 2021 of 2006, and the commercial utility of that litigation are at the heart of the proceedings brought by Areva. Documents recording instructions given to a law firm in relation to the advice which it has given in connection with those proceedings therefore seem to me to fall quite readily within the ambit of serving a legitimate forensic purpose. As I have indicated, I would construe the range of legitimate forensic purposes broadly, consistently with decisions of the Full Court and the Court of Appeal, to which I have referred.

39 So in answer to the first question which arises for my determination, I am satisfied that all the categories of documents sought would, if produced, serve a legitimate forensic purpose. That being so, the next question which arises is the extent to which that purpose could be rendered otiose or indeed futile because of Summit's claim to legal professional privilege. As I have indicated, the normal course of events would be for the subpoena to issue and then for legal professional privilege to be asserted upon the return of the subpoena. In the normal course of events, the question of whether or not the privilege is applicable would be resolved upon the assertion of the privilege at the point of production, not at the point of issue of the subpoena.

40 Because of the case management considerations to which I have referred, in this case I have taken the unusual course of attempting to conflate those issues and to bring before the Court questions of privilege for resolution prior to the issue of the subpoena. However, I emphasise that that is an unusual course and it need not be followed in any subsequent case.

41 That course having been followed in this case, it seems to me to be clear, by definition from the terms of the categories themselves, that categories 1 and 3 would comprise documents which must, by the very terminology of the categories, be the subject of a valid claim for legal professional privilege, being either drafts of a letter of advice, or instructions given for the purposes of that advice.

42 In relation to category 2, there is, I think, a strong inference that a large proportion of the documents falling within that category will be the subject of a valid claim of legal professional privilege. The only exception to that conclusion would be if the advice to which the documents related was advice that could not be categorised as legal advice.

43 So there is a strong inference to the effect that the vast bulk of the documents falling within category 2 will be privileged, although there is a possibility that if the advice given was not legal advice, some of the documents within that category may not fall within the scope of legal professional privilege.

44 In relation to category 4, again there is a strong inference to the effect that documents that were relied upon by Mr Lishman in the course of preparation of the 5 July letter would be privileged, although one could not entirely exclude the possibility that there might be documents that he relied upon that were not provided to him by his instructors and which might arguably not fall within the scope of legal professional privilege.

45 So in relation to categories 1 and 3, I conclude that all the documents within those categories are subject to legal professional privilege and, in relation to categories 2 and 4, I conclude that it is highly likely that most if not all of the documents could be the subject of a valid claim for legal professional privilege.

46 In the unusual process that we have followed in this case, my conclusions as to the extent to which the documents are subject to privilege is relevant to my assessment of whether a legitimate forensic purpose would be served by the issue of the subpoena. If it could be established that the documents were privileged and that the party who is entitled to assert the privilege asserts it, then no legitimate forensic purpose would be served by the issue of the subpoena, which would be futile.

47 This process of analysis therefore requires me to consider whether the doctrine of waiver would preclude Summit from asserting the privilege which it has, on the evidence before me, indicated that it wishes to assert.

48 The doctrine of waiver has been enunciated in a number of cases (see Attorney General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83, Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, and AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; (2006) 234 ALR 651). Central to the principle are notions of fairness so that, if it would be unfair in a procedural sense for a party to assert legal professional privilege while at the same time having disclosed other documents or advanced a particular argument, the doctrine of implied waiver will be applied.

49 In relation to categories 1, 3 and 4, there seems to me to be no difficulty whatsoever in concluding that the doctrine of waiver applies and indeed this was not seriously contested before me. The letter of 5 July has been used in evidence. The purpose to which it was put in the proceedings before me and which it is likely to be put in the substantive proceedings under s 237 means that not only will the terms of the letter itself be in issue in those proceedings but also the basis for the substantive issues addressed in the letter will be significant areas of forensic controversy.

50 For example, under s 237(3) of the Act, the reasonableness of the conduct of the directors will be an issue if, which I assume, the presumption created by that subsection is relied upon. The reasonableness of the conduct of the directors will fall to be assessed in the context of the terms of the letter but also by reference to the information that was relied upon by the author of the letter in compiling it, and by reference to the question of the extent to which that information was known to the relevant directors, and if so, the extent to which they knew or had reason to believe that information was accurate.

51 That information, relied upon by the author of the 5 July letter, would give rise to lines of legitimate forensic inquiry as to the information that was available to the directors to whom the letter was provided, which questions might be pursued in the cross-examination of those directors in the likely event that they give evidence. It therefore seems to me that all the material relied upon by Mr Lishman in formulating the letter of 5 July would, in the way this case has unfolded and the way it is likely to be argued, be unfairly retained by Summit. It would be unfair to Areva if that material was not disclosed, after Summit has relied upon the 5 July letter in the past, and has foreshadowed relying upon it in the future.

52 On the information before me, it is possible for me to conclude at this stage and without needing any further evidence that there has been a waiver of privilege in relation to all the documents that come within the scope of categories 1, 3 and 4 of the proposed subpoena.

53 In relation to category 4, I should refer to the affidavit of Mr Lishman of 22 October 2007, in which, in paragraph 9, he observes as follows:

Indirectly, I relied on much of the discovery in CIV 2021 of 2006 and much of the material contained in the file 'Summit re Isa Uranium Joint Venture'. Whilst I did not place specific reliance on these documents, I relied on my knowledge of the matter generally, that knowledge being based upon every document and piece of information to which I have been privy in relation to this matter.

54 The reliance to which Mr Lishman is referring is reliance for the purposes of preparation of his advice of 5 July. It seems therefore that, to use Mr Lishman's terms, 'much of the material' contained in the file Summit Re Isa Uranium Joint Venture would fall within the scope of category 4 and therefore within the scope of the waiver of privilege to which I have referred.

55 For an abundance of clarity, I find that all the documents evidencing or recording any material or information or matters taken into account by Mr Lishman or any person assisting him in the preparation of the 5 July letter are not the subject of a valid claim for privilege from inspection because of the application of the doctrine of waiver to which I have referred.

56 It is therefore unnecessary to go to the step of requiring Summit, as the party who would claim privilege, to enunciate a claim for privilege in respect of those documents in the usual way, or to require Areva to then challenge the claim for privilege on the basis of waiver. That is because the category of documents to which I have referred could not fairly be claimed to be privileged from inspection by Summit, given the reliance that it has placed in the past on the letter of 5 July in the course of the proceedings under s 247A, and the reliance which it will place in the future on that letter in the course of the proceedings under ss 233 and 237.

57 The position in relation to the documents within category 2 of the proposed subpoena is different because that category is not confined to documents that were taken into account or upon which Mr Lishman relied for the purposes of the preparation of his advice of 5 July. It cannot therefore be concluded that privilege in respect of all of the documents within that category has been waived. Having concluded that it is highly likely that many if not all of those documents would be the subject of a valid claim for legal professional privilege, it is appropriate that the ordinary procedure applicable to such claims should now be followed. As I have concluded that there is a legitimate forensic purpose to be served by the production of those documents, they should be produced to the Court in answer to the subpoena. The party who asserts privilege from inspection in relation to those documents should then enunciate that claim in the conventional way. The Court should then hear argument on the question of whether privilege has been established and, if so, whether the documents should, nevertheless, be inspected because the privilege has been waived.

58 I will summarise my conclusions. Leave is no longer required to issue a subpoena, returnable at a time other than the trial. Having concluded that production of the documents the subject of the subpoena would serve a legitimate forensic purpose, the proper order is that the subpoena should issue. The subpoena should extend to all categories in the summons save that category 4 should be modified to exclude from production any document that has been discovered in CIV 2021 of 2006. Because of the view which I take as to the ambit of category 4, it is unnecessary to separately specify the file 'Summit Re Isa Uranium Joint Venture'.

59 In relation to categories 1, 3 and 4, I have concluded that any privilege covering the documents within those categories has been waived, and they should be made available for inspection.

60 In relation to category 2, upon return of the subpoena it will be open to Summit to advance a claim for privilege from inspection of those documents in the usual way. It will then be open to Areva to argue that any privilege established in relation to those documents has been waived.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : AREVA NC (AUSTRALIA) PTY LTD -v- SUMMIT RESOURCES (AUSTRALIA) PTY LTD [2007] WASC 276 (S)

BETWEEN : AREVA NC (AUSTRALIA) PTY LTD (ACN 003 337 782)

SUMMIT RESOURCES (AUSTRALIA) PTY LTD (ACN 009 188 078)

Practice and procedure - Costs - Costs of compliance with subpoena

Rules of the Supreme Court 1971 (WA), O 36B, r 11

Plaintiff to pay Mr Ian M Lishman's costs incurred in complying with the subpoena in the amount of $8,138.23, inclusive of GST

1 MARTIN CJ: These reasons are concerned only with the assessment of the costs to be paid by the plaintiff, Areva NC (Australia) Pty Ltd (Areva), to Mr Ian Michael Lishman (Mr Lishman) in respect of the losses or expenses incurred by him in complying with a subpoena to produce documents issued by Areva.

2 The circumstances in which the subpoena was issued, and the procedure followed prior to its issue, are set out in my reasons for decision dated 23 October 2007 - Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276.

3 In summary, Mr Lishman is a member of a firm of solicitors, Cochrane Lishman, who were advising Summit Resources Ltd and Summit Resources (Australia) Pty Ltd (the Summit parties) in relation to a number of issues, including the proceedings between Summit Resources (Australia) Pty Ltd and Resolute Ltd and Mt Isa Uranium Pty Ltd (being CIV 2021 of 2006). The parties for whom Mr Lishman acted are, of course, parties to these proceedings. However, Mr Lishman submits, and Areva accepts, that the fact that he is entitled to an indemnity from those parties in respect of losses or expenses incurred by him in complying with the subpoena does not disentitle him to an order that Areva pay those costs. Because both parties accept that proposition, I will proceed upon that assumption, without being taken to determine that assumption to be correct in all circumstances.

4 The subpoena required Mr Lishman to produce, and he did produce, documents falling within the following categories:

(2) All documents evidencing or recording any instructions given to Cochrane Lishman by any person to provide advice to Summit Resources Limited in connection with the Supreme Court proceedings CIV 2021 of 2006.

(3) All documents evidencing or recording any instructions given to Cochrane Lishman by any person in relation to the preparation and content of the 5 July letter.

(4) All documents evidencing or recording any material or information relied upon by Michael Lishman, or any person assisting him, in the preparation of the 5 July letter, save to the extent that such documents have been discovered in proceedings CIV 2021 of 2006.

("5 July letter" means the letter dated 5 July 2007 from Cochrane Lishman to Mr Mal Randall and Mr David Berrie, a copy of which was an attachment to a letter dated 10 August 2007 from Cochrane Lishman to Mr Ron Forster at Minter Ellison, including any drafts of that letter.)

5 Mr Lishman only seeks an order for losses and expenses incurred in producing documents within categories 2 and 4. He does not seek any order in respect of any costs, losses or expenses incurred in producing documents falling within categories 1 or 3, or in respect of the contested hearing which preceded the issue of the subpoena.

6 Mr Lishman seeks an order pursuant to O 36B r 11 of the Rules of the Supreme Court 1971 (WA) which provides:

(1) The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.

(2) If an order is made under subrule (1), the Court must fix the amount or direct that it be fixed in accordance with the Court's usual procedure in relation to costs.

(3) An amount fixed under this rule is separate from and in addition to -

(a) any conduct money paid to the addressee; and

(b) any witness expenses payable to the addressee.

7 Mr Lishman's application is supported by an affidavit of Mr Nathan John Landis. Mr Landis is a solicitor employed by Mallesons Stephen Jaques (Mallesons) who acted for Mr Lishman in relation to the subpoena directed to him. Annexed to Mr Landis' affidavit is a tax invoice from Mallesons to Cochrane Lishman dated 20 November 2007. Mr Landis deposes that the invoice was in respect of work done by Mallesons for Mr Lishman. The invoice shows that fees for legal services totalling $31,814.50 were charged. That amount is broken down, on the invoice, into three components, being:

(a) Collating and listing category 2 and 4 documents - technology support - $6,768.00;

(b) Collating and listing category 2 and 4 documents - lawyer support - $6,055.00;

(c) Legal advice regarding documents - $18,991.50.

8 In addition, the invoice includes an amount for disbursements described as:

9 Mr Landis deposes that the work included technology support in collating the documents within category 2 and 4 which had been identified by Mr Lishman (that work having been completed by paralegals). Although the text of Mr Landis' affidavit does not condescend to detail, I infer that this is the work the subject of the itemised amount of $6,768 in the invoice to which I have referred.

10 Mr Landis also deposes that the work done by Mallesons included work done by junior lawyers who assisted in listing the documents within categories 2 and 4 which had been identified by Mr Lishman. Again, although the affidavit does not say so expressly, I infer that this is the work itemised in an amount of $6,055 in the invoice to which I have referred.

11 Mr Landis also deposes that the work included the provision of advice to Mr Lishman regarding compliance with categories 2 and 4, and that the two lawyers who provided that advice were Ben Luscombe and Mr Landis, whose hourly rates were $560 and $405 respectively. Again, although Mr Landis does not say so expressly, I assume that this is the work itemised in the amount of $18,991.50 in the invoice to which I have referred.

12 Mr Landis also deposes that the copying of the documents was outsourced to an independent organisation specialising in copying documents, which organisation charges 11 cents per page per documents copied. Again, although the affidavit does not say so expressly, I assume that this is the disbursement in the amount of $1,798.39 shown on the invoice to which I have referred.

13 Mr Landis also deposes that he was informed by Mr Lishman that he spent approximately 25 hours searching for and collating the category 2 and 4 documents. Mr Lishman informed Mr Landis that his hourly rate at the time that work was undertaken was $560. Although it is not expressly stated in Mr Landis' affidavit, I assume that amount is exclusive of GST.

14 It will thus be seen that the fees charged by Mallesons to Mr Lishman, in respect of the work undertaken on his behalf, and Mr Lishman's time, charged at his normal hourly rate, exceeds $40,000. However, Mr Lishman submits that in all the circumstances, an amount of $15,000 would be reasonably fixed by the court to reimburse his expenses pursuant to O 36B r 11.

15 Areva points out that only nine documents were identified by Mr Lishman falling within category 2 of the subpoena, and that category 4 involved the production of 'much of the material' (an expression taken from Mr Lishman's affidavit of 22 October 2007) on the file maintained by Mr Lishman relating to action CIV 2021 of 2006. Areva further points out that identifying the material which Mr Lishman relied upon in order to prepare his letter of 5 July is a task which could only be undertaken by Mr Lishman himself. Having regard to these submissions, which I accept, and the material in Mr Landis' affidavit and the Mallesons' invoice, I conclude that all of the work done identifying and assembling the documents falling within categories 2 and 4 of the subpoena was done by Mr Lishman, and that the work done by Mallesons was work done collating and listing those documents in terms of the list which was attached to Mr Lishman's affidavit of 12 October 2007, together with legal advice in relation to matters associated with the production of those documents. Privilege is claimed in respect of that advice, and so I do not know what that advice related to. However, it is difficult to see how any advice would have been required in relation to the relatively straightforward task of identifying and assembling the documents falling within categories 2 and 4, as those categories are described in straightforward terms which should have been readily understood by Mr Lishman.

16 A party producing documents to the court under subpoena is not required to list those documents. It was Mr Lishman's choice to instruct Mallesons to undertake that task. Accordingly, I conclude that the fee rendered to Mr Lishman by Mallesons in respect of that work is not a loss or expense reasonably incurred by Mr Lishman in complying with the subpoena, but rather, is a loss or expense incurred by him either for his own benefit or for the benefit of the Summit parties he was advising.

17 Similarly, as privilege has been claimed in respect of the advice given by Mallesons, and on the material available to me, it is not reasonable to infer that the advice related to the work done in identifying and assembling the documents produced on subpoena. It is not open to conclude that the advice given by Mr Luscombe and Mr Landis was a loss or expense reasonably incurred by Mr Lishman in complying with the subpoena. All that was required to comply with the subpoena was to identify and assemble the documents falling within categories 2 and 4, and there is no evidence to the effect that the undertaking of that task required the provision of legal advice.

18 Accordingly, I conclude that the only expenses falling within the Mallesons' invoice of 20 November 2007 which are potentially recoverable by Mr Lishman under O 36B r 11 are the copying costs recorded as a disbursement, in the amount of $1,798.39 (plus GST).

19 Mr Lishman is entitled to reimbursement for the time he spent identifying and assembling copies of documents falling within the relevant categories at his normal hourly rate - see Deposit & Investment Co Ltd (Receivers Appointed) v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267; 289. Mr Landis deposes that Mr Lishman has informed him that 25 hours was spent undertaking that task. That is between three and four days of full-time work. In the absence of direct evidence from Mr Lishman, given that only nine documents were produced within the second category of documents, and that the bulk of the documents produced within the fourth category would have been found on a file which he maintained in relation to CIV 2021 of 2006, it is difficult to accept that between three and four days of full-time work was reasonably required to identify and assemble the documents falling within categories 2 and 4 in the subpoena. In the absence of some greater information as to the work undertaken by Mr Lishman, I would have thought that work could and should have been readily performed within 10 hours at the most. At Mr Lishman's normal hourly rate, that would reflect a loss of revenue earning time in an amount of $5,600. To that amount I would add the copying expenses identified on the Mallesons' invoice in the amount of $1,798.39, producing a total of $7,398.39. GST should be added to those amounts, giving a total of $8,138.23.

20 For these reasons, I order Areva to pay Mr Lishman's costs and expenses incurred in complying with the subpoena in the amount of $8,138.23, such amount to be paid within 21 days.

(Family and Dependants Provision) Act 1972

AREVA NC (AUSTRALIA) PTY LTD -v- SUMMIT RESOURCES (AUSTRALIA) PTY LTD [2007] WASC 276 (23 October 2007)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (116 paragraphs)

AREVA NC (AUSTRALIA) PTY LTD -v- SUMMIT RESOURCES (AUSTRALIA) PTY LTD [2007] WASC 276 (23 October 2007)

Legislation Cited (1)

Cases Cited (11)