Consideration
84 At the outset it is appropriate to make a number of observations about the evidence, given the opposing parties submissions as to its sufficiency.
85 The parties accepted during the hearing that s 75 of the Evidence Act applied to this hearing. This was in accordance with the well-established practice in relation to applications of this kind: Kirby v Centro Properties at [14]; Morton v Bolinda Publishing Pty Limited [2017] FCA 187 at [61].
86 As the opposing parties correctly recognised, Mr Hutchison was not involved in the commissioning of the Report. However, it does not follow that his affidavits, and more significantly, the evidence on which BMA relies, are no more than conclusory assertions of the type discussed in NCA v S at 211, such that the claims are unsupported by evidence to enable a court to make an informed decision as to the correctness of the claim.
87 This claim arises in the context where the Incident and the commissioning of the Report in question occurred 7 years ago. Those lawyers involved in commissioning the Report are no longer with BHP Legal, having left in January 2015. In that context, Mr Hutchinson provides contemporaneous emails and documentation surrounding the commissioning and preparation of the Report. Notwithstanding the redactions (which may affect the inferences to be drawn and the weight that can accordingly be attached to them), it is nevertheless from those documents that BMA contend the subjective purpose of commissioning the Report is clear and an assessment of the circumstances from the objective viewpoint can be made. Leaving aside the issue of the documents being redacted, it was not suggested that documents of this nature or type were not admissible per se, or could not be capable of establishing a claim for privilege.
88 The applicants objected to some of the documents on the basis that aspects of their contents were redacted. It was submitted, inter alia, that it was not clear that the Evidence Act permitted the tender of a document, part of which was redacted, and that a party has to tender all of the communication in a document or not tender the document at all, the applicants cited no authority for that bald proposition. As a general proposition, if part of a document is redacted for proper reason that, without more does not necessarily render the document inadmissible, although it may affect the question of relevance of the document or, if relevant, what inferences might be drawn from it and the weight to be attached to them. I note here that although a number of documents were admitted over objection on the basis that submissions could be directed to weight, ultimately I was not assisted with detailed submissions on individual documents in this regard.
89 That said, the evidence of Mr Hutchinson, was that those redactions were made as the content was the subject of legal professional privilege, and what was produced was done without waiving privilege. Mr Hutchinson was unchallenged on that point. In that context, the applicants' submission that it was a forensic decision by BMA to provide redacted documents does not withstand scrutiny. Given the nature of the documents and their unredacted portions, seen in their context, there is no proper basis in the evidence to suggest that it was a forensic choice by BMA to redact the documents as opposed to an approach adopted as being necessary to maintain legal professional privilege. If the privileged material was exposed and relied on by BMA, privilege would have been waived, defeating the very purpose of BMA's claim.
90 The issue then becomes whether BMA has established that the Report was commissioned for the dominant purpose of obtaining legal advice in relation to litigation that was anticipated to result from the Incident.
91 I am satisfied that the evidence relied on by BMA establishes the factual description of the events as recited above at [23]-[41].
92 The evidence is that it was Ms Holding who commissioned the Report and that she did so for the dominant purpose of obtaining legal advice in relation to litigation that was anticipated to result from the Incident. That was her subjective purpose, as reflected in the contemporaneous documentation.
93 In that context, Work Boats' submission that the absence of evidence of Mr Baker's purpose in relation to the Report was a significant omission, misunderstands the relevant legal principles. In Hartogen, Gummow J observed at 568-569:
The purpose for which a document is brought into existence is a question of fact...
The purpose will ordinarily be that of the maker of the document, but this will not always be the case. In Laurenson v Wellington City Corporation (1927) NZLR 510, Skerrett C.J. looked to the person who "calls into existence documents in the bona fide belief that litigation will probably ensue ...". (emphasis supplied). And the phrase I have emphasised was employed by Stephen, Mason, Murphy JJ. in Grant v Downs (at 682-3). It is apt to describe the situations where, for example, solicitors commission the provision of a technical report; the relevant intention will not be that of the author but the solicitor.
94 Where the person who procured the creation of the report is not the author, as in this case, the intention of that person and not the author's, is relevant: Hartogen at 568-569. The relevant purpose is that of the person who commissioned the Report which, in this case, was Ms Holding. Work Boats reliance on Powercor Australia Ltd v Perry [2011] VSCA 239; (2011) 33 VR 548 at [20] in this context, is misplaced. There is no basis for Work Boats submission that the absence of evidence from any of its authors or investigators leads to an adverse inference that their evidence would not have assisted BMA.
95 An objective consideration of the evidence, as summarised above, also reflects that it was the dominant purpose. Although it was submitted that the email from Ms Holding was a pro forma or a precedent email it was not seriously challenged that litigation was anticipated at the time of the Incident. Given the nature of the Incident it can be readily accepted that litigation was reasonably anticipated.
96 The email correspondence commissioning the Report was in plain and clear terms as to its purpose, and in accordance with that purpose, protocols were put in place to ensure confidentiality. The report was commissioned by Ms Holding, BMA's in-house counsel, in a context where there had been prior communication between her and external lawyers; Ashurst was engaged by BMA to provide legal advice in relation to the Incident. The investigation was commissioned by BHP Legal acting as BMA's in-house counsel, not by BMA management or any other division of BHP, in urgent circumstances shortly after the Incident: see for example Mitsubishi at [15]. Ashurst was involved in the drafting of the Report and commissioned two additional reports for use in connection with the Report. The opposing parties' submission that the assertion that Ashurst was "involved in the drafting of the [ICAM] Report" overstates the position is not borne out by the evidence. The emails, although containing redactions, reflect the extent of the communication, and the topics on which that was occurring. The inference is, as contended for by BMA, that Ashurst had a substantive role in advising BMA, and that the involvement of BHP Legal and Ashurst was a necessary and legitimate part of the process: Kirby v Centro Properties at [92]. The involvement of their legal assistance and expertise reflect the nature of the Report. The external lawyers, Ashurst, were retained under the Relationship Agreement for Provision of Legal Services between BHP Billiton Limited and Blake Dawson, which inter alia, refers to the legal services including the giving of legal advice on claims and disputes. It is apparent from the evidence that the work for which Ashurst were retained falls within that description. The mere fact of retaining external lawyers in the circumstance, gives rise to the inference it is for legal advice: Kennedy v Wallace at [27].
97 The involvement of Stein, BMA's liability insurer from the day of the Incident and the later inclusion of a solicitor from HFW on its behalf in the investigation, in the context of the common interest privilege agreement and its terms supports the contention that legal advice in connection with anticipated litigation was the dominant purpose of bringing the Report into existence and the intended use of the Report. The opposing parties' submission as to the involvement of Stein was that in reality, the evidence as to purpose raises no higher than the email from Ms Holding in commissioning the Report. The submission does not grapple with the gravamen of BMA's submission on this topic, being that there was no proper reason for the involvement of the insurer and its lawyers in the preparation of the Report if the document was directed to safety issues. I do not accept Work Boats submission recited at [70] above, that in so far as the Report was prepared for legal advice, it was bifurcated for two legal purposes (one being for the insurer), such that neither purpose could be dominate and therefore the Report does not attract privilege. It does not alter the dominant purpose for commissioning the Report which is for the purpose of obtaining legal advice in relation to litigation that was anticipated to ensue from the Incident. The documents relied on are contemporaneous records of what occurred. The documents, from the email commissioning the Report, make the purpose clear with the conduct thereafter being consistent with that stated purpose.
98 The opposing parties' submission that there is no evidence that the Report was, in fact, communicated by its authors to a lawyer acting for BMA for that purpose is incorrect, as Mr Hutchinson gave evidence that Mr Baker told him that Ms Holding and Ms Anderson reviewed and approved the final version of the Report. Although it is correct that there was no evidence of any legal advice that was provided to BMA in light of the Report, that does not deny the claim for privilege in this case with the focus of the inquiry being on the purpose for which the document was brought into existence: see for example, Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (No 5) [2012] FCA 1226 at [10]-[13].
99 I accept that BMA has established that the documents are privileged.
100 I do not accept the opposing parties' submissions that the evidence supports a finding that the sole or dominant purpose of the Report was to determine whether systems should be changed to prevent a recurrence of the Incident. Nor do I accept, on the evidence, that there were equally competing purposes.
101 First, to support this submission the opposing parties needed to address the email of 31 January 2014 which commissioned the Report. They submitted that it should not be relied on because it is a pro forma or precedent designed to clothe the report with privilege. The underlying premise must be that this is a device used to give protection to the Report to which it is not properly entitled. There is no proper evidence which supports that submission. The subjective evidence is clear as to the purpose. The objective evidence in regards to the commissioning of the Report, the circumstances of its creation including its timing, the interactions between various person thereafter (as reflected by the emails) and the handling of the Report is all consistent with the claim for privilege.
102 Second, the basis of the submission as to the purpose being to advise on safety measures to prevent future safety incidents, appears to depend on publically available material from the internet as to the approach taken by BHP to incidents and the fact it is an ICAM report. I note that the publications are of varying nature and dates. It was submitted that by its very nature, the purpose of any ICAM investigation and report is to determine the cause of an incident and advise on measures to prevent a future safety incident, which it was submitted is consistent with the systems BHP appear had in place for investigating incidents. That submission is premised on the basis that 'systems BHP appear to have had in place for investigating incidents, where an ICAM investigation approach was to be adopted not to "apportion blame or liability", but with the "principal objective" of "prevent[ing] recurrence and to advance safety"'.
103 In that context, the terms of the email of 31 January 2014 commissioning the investigation are important. As is apparent from the recitation of the email above, Ms Holding first explains the purpose for commissioning the investigation: "[t]here is a risk that legal proceedings could be commenced involving BMA as a result of this incident and BMA is taking legal advice in relation to the incident". Immediately thereafter it stated "[t]o that end", and instructions are then provided: "investigations are required by BMA regarding the circumstances of the incident and the damage and losses caused as a result of the incident". There is then a "request that you adopt the ICAM method in carrying out the investigation and report the outcome to Sharron Anderson and myself" [emphasis added]. Ms Holding was asking the investigation team to adopt a particular methodology in carrying out the investigation she had commissioned. Ms Holding asked that they report the outcome.
104 BMA submitted that although some documents downloaded from the internet show that the ICAM method was followed by BHP, there is no evidence from that material which supports the proposition that an ICAM report would necessarily have been commissioned by BMA in these circumstances bearing in mind these facts. BMA submitted that included that it is not BMA's barge, it is not BMA's mooring, it is not BMA's wharf that was damaged, it is not BMA's maritime area, and there were no injuries to BMA employees. BMA submitted that the material relied on by those opposing the claim show that "these types of reports, the ICAM reports, being required to be followed in particular severe circumstances or situations, some involving death. Now, none of that applied in this case". Significantly, neither party opposing the claim responded to that submission or pointed to any aspect of the material which was inconsistent with it.
105 The quotes relied on by the opposing parties from the various internet publications appear to reflect that where a safety investigation occurs a new method of ICAM had been introduced. However, although that method may be used in a safety investigation, the corollary does not follow, that is, it does not follow that just because the ICAM method is used the dominant purpose of the investigation must have been to "prevent recurrence and to advance safety". The purpose of the commissioning of the investigation is to be determined by all the circumstances. That the ICAM methodology was requested does not, in the circumstances of this case, undermine BMA's claim as to the dominant purpose it commissioned the investigation. It does not follow, as the opposing parties contend, that the sole or dominant (or even equal) purpose BMA commissioned the investigation was to undertake a safety investigation to prevent recurrence.
106 The circumstance of the Incident, the nature of the events in commissioning the investigation which led to the Report and the haste with which they occurred, are not explained by the purpose of the investigation given the factors in [23]-[41] above, being for safety. Nor can the involvement of persons such as the insurers and external lawyers in the investigation process and preparation of the Report.
107 Third, related to that was the submission by Work Boats, relying on an observation in Grant v Downs at 688, that the Report could not be privileged because this report would have been prepared in any event. However, in the circumstances described above at [104], there is no proper basis for that submission. Although Work Boats referred to cl 2.2 of the unredacted services agreement to the effect that BMA was to apply the policies of BHP, as BMA submitted it did not identify any policy or statute which would require BMA to prepare this document, in these circumstances, including those referred to in [65] above.
108 Fourth, contrary to the applicants' submission, that the investigation was conducted by persons with a technical and non-legal background does not give rise to the inference the investigation was likely to be about safety. As is implicitly recognised in the passage in Hartogen recited above at [93], technical reports are capable of attracting privilege if commissioned for legal purposes. Indeed, such a proposition should be uncontroversial.
109 Fifth, the statement in the common interest privilege agreement between Stein and BMA, that "nothing in this letter is intended to prevent BMA from also using the report produced for it for the additional purpose of assisting with a safety and environmental improvement process" which was relied on by the opposing parties, is not inconsistent with that. This statement was made on 4 February 2014, some days after the Report had been commissioned. The letter states, inter alia, that "confidential information [as defined] is being created for the dominant purpose in use for or in relation to the provision of legal advice to BMA and Stein regarding the Incident and in anticipation for litigation being commenced in relation to the Incident". In that context it refers to it as an ancillary use to which the Report might be made. I accept BMA's submission that it does not rise to a purpose equal to or dominant over the litigious purpose in the commissioning of the investigation. Such posterior use is of no moment where the client's purpose is to seek legal advice in relation to litigation that was anticipated to result from the Incident: see Kirby v Centro Properties at [88]. I note also in this context, the observations of Batt JA in Mitsubishi at [15] which are relied on by BMA, that "it is significant that the reports were commissioned by the solicitors and not by their nominal client. Public safety and quality control were unlikely to be of more than peripheral, if any, concern to the solicitors, certainly when their instructions were as they had stated them to be".
110 Sixth, the applicants' submission that the involvement by BMA with MSQ was inconsistent with the purposes of the Report being for legal advice in anticipation of litigation, is not borne out by the evidence. Even though it appears that MSQ were told they would be given a copy of the Report, the evidence established that did not happened. This is apparent from the documentation put to the Court by the applicants which they had obtained as a result of a subpoena. Among the documents is a memorandum of MSQ in which it expresses an opinion of the regional manager that the Report will not be forthcoming, that the matter should be finalised as per the recommendations and the file was closed. That is, the Report was not provided. I was informed that the breadth of the subpoena from which these documents were obtained was such that if the Report had been forwarded it would have fallen within its terms. Further, Mr Baker also informed Mr Hutchinson that at all relevant times he understood that the ICAM Report was subject to a claim of legal privilege and that he did not provide a copy of the Report to MSQ.
111 I am satisfied on balance, BMA has established that the Report is the subject of legal professional privilege. I am also satisfied that attachments 1, 2 and 5 were prepared for the purpose of the Report by the investigation team, and that attachments 3 and 4, were obtained for the privileged purpose of the Report. As noted above, the opposing parties requested that I view the document if I am satisfied that two purposes are proved to be present and it is not obvious from the objective circumstances if there is a dominant purpose and if so what the dominant purpose is. Given my findings above, there is no good reason to view the Report, or the attachments.