Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie

1. The documents listed in Annexure E over which privilege was claimed were grouped into five categories: Category identifier Document description / category Item Nos. D Emails from Kelly to Natasha Blefari (Blefari) (AECOM) (or vice versa) re preparation of affidavits 3, 5, 7, 8, 10, 12 E Emails from Alex Bourne (Bourne) (EPA) to Julie Porter (Porter) (AECOM) re costings, fees, preparation of technical investigation 2 (also includes a reference to a communication between a lawyer for the EPA and Porter p 6), 14 F Emails between AECOM officers (including AECOM corporate counsel, Peter Jenson (Jensen) referring to legal advice provided by Kelly 118, 119, 120 G Draft affidavits by AECOM officers submitted or intended to be submitted to Kelly and associated communications (including with Jenson) 121, 122, 123, 124, 125, 126, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 168, 169, 170, 171, 173, 174, 175 H Draft versions of AECOM's investigation report 176, 177, 178

1. At the hearing of the defendants' motion, the prosecutor agreed to waive privilege in relation to one document, being document 176 in category H, the "Draft URS technical investigation report - file name 'Project Trojan Salt Ash Report_3rdD (with appendices).pdf'".

Does the Evidence Act or common law apply to the privilege claim?

1. The defendants submitted that the prosecutor bears the onus of making out, on the balance of probabilities, its claim for legal professional privilege in relation to the documents. The defendants submitted that the prosecutor's claims of privilege are to be resolved under either ss 118 or 119 of the Evidence Act 1995. The prosecutor, however, submitted that the Evidence Act does not apply but instead its claims for privilege are to be resolved by application of common law principles.
2. This threshold issue was of some importance because the defendants accepted that if the common law and not ss 118 or 119 of the Evidence Act applied, many of the categories of documents over which privilege is claimed would be privileged. I will therefore start with this issue.
3. I agree with the prosecutor that its claim for privilege and objection to inspection of the documents being granted is governed by the common law and not the Evidence Act.
4. At the outset, it is important to identify the stage at which the prosecutor's claim for privilege arises. As Brereton J observed in Carbotech - Australia Pty Ltd v Yates [2008] NSWSC 1151 at [10], it had been recognised at least since National Employers' Mutual General Association v Waind and Hill [1978] 1 NSWLR 372 that there are three steps in the process of complying with a subpoena: "first, the production of the document to the Court in answer to the subpoena; secondly, the interim use which might be made of the document, such as the granting of access for the purposes of inspection, at which stage typically any questions of privilege are agitated and, thirdly, the tender of the document into evidence."
5. The third stage of tendering the documents into evidence is governed by the provisions of the Evidence Act. Section 118 of the Evidence Act creates a privilege for confidential communications made, and confidential documents prepared, for the dominant purpose of a lawyer providing legal advice (advice privilege). Section 119 creates a privilege for confidential communications made, and confidential documents prepared, for the dominant purpose of a lawyer providing legal services relating to litigation (litigation privilege). The provisions prevent the adducing of evidence which would result in disclosure of the privileged communication or document. The High Court held in Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49; [1999] HCA 67, that the Evidence Act applies only to the adducing of evidence in the course of a hearing, and not to ancillary processes such as discovery. As Brereton J held in Carbotech - Australia Pty Ltd v Yates at [7], "[it] must follow that the Act does not apply, of its own force, to claims for privilege in respect of the production and inspection of documents on subpoena."
6. The first stage of producing the documents on subpoena is governed by r 1.9 of the UCPR, which authorises an objection on the ground of a claim for privilege to production of a document. As Brereton J noted in Carbotech - Australia Pty Ltd v Yates at [8]: "UCPR, r 1.9, provides a procedure by which objection may be taken to the production of documents required to be produced inter alia by a subpoena upon grounds that the documents are 'privileged documents', again defined by reference to the Evidence Act. But this rule relates to the production of documents, and not the inspection of documents already produced. As Mr Kirk has already pointed out in the course of argument, r 1.9(3) - providing, as it does, that a person may object to producing a document - is addressed only to an objection by the person required to produce the document, and not an objection or claim for privilege by someone else in respect of a document so produced."
7. However, neither the Evidence Act nor UCPR, r 1.9 apply to the second stage of inspecting the documents already produced. The Evidence Act does not apply, of its own force, because evidence is not being adduced in the course of a hearing. UCPR, r 1.9 does not apply, and does not apply the Evidence Act, because the claim for privilege and objection to inspection of the documents produced on subpoena is not made by the person who produced the documents, but by someone else. Instead, the claim for privilege and objection to inspection is governed by the common law: Carbotech - Australia Pty Ltd v Yates at [11] and Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002 at [10].
8. The decision in Styles v Clayton Utz [2011] NSWSC 1314, relied on by the defendants, is not authority to the contrary. The decision concerned not legal professional privilege under ss 118 and 119 of the Evidence Act, but protected confidences under ss 126A and 126B of the Evidence Act. The arguments made in the present case about the non-applicability of UCPR, r 1.9 were not argued in that case. The judge was not taken to the decision of the Court of Appeal in State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60, which held that s 131A of the Evidence Act did not apply to an objection to inspection of documents produced on subpoena by a person other than the person required to produce the document. The judge did not consider whether, by similar reasoning, UCPR, r 1.9 did not apply to an objection to production of documents made by a person other than a person required to produce the documents.
9. The defendants' argument that the reference in UCPR, r 1.9(3) and (4) to a person objecting to producing a document extends to persons other than the person required to produce the documents is contrary to the ordinary meaning of those provisions and the decisions of Carbotech - Australia Pty Ltd v Yates and Tavcol Pty Ltd v Valbeet Pty Ltd.

Resolving the claim for privilege and objection to inspection

1. On the basis that the prosecutor's privilege claim is to be determined by application of the common law, the defendants accepted that the documents in categories A, B, D, G and H would be privileged. The defendants submitted that the documents in category C, E and F would not be privileged at common law. The defendants argued that the prosecutor has waived privilege over the documents in categories G and H. I will deal with these categories of documents still in issue.

Documents in categories C, E and F are privileged

1. The documents in category C were described by the prosecutor as being emails from Dr Martens (or an officer from Martens and Associates) to Mr Kelly (the EPA solicitor) or vice versa concerning the fee agreement for preparation of an expert report by Dr Martens. The documents were dated 18 August 2016 and 25 August 2016 respectively, after the prosecution was commenced (on 11 May 2016). The expert report was prepared for and was filed in the prosecution.
2. The prosecutor submitted that those communications and documents between the EPA solicitor and an expert witness (Dr Martens) were prepared at a time when the prosecution had commenced with a view to obtaining evidence to be used in the prosecution. In Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246 (paragraph (e)), Lockhart J held that legal professional privilege extends to various classes of documents, including: "Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. See Wheeler v. Le Marchant (14); Laurenson v. Wellington City Corporation (15), and O'Sullivan v. Morton (16)."
3. The defendants argued that the communications or documents were part of the contractual negotiations between the prosecutor and Dr Martens concerning the scope of his expert report and his terms and fees. The defendants argued that these contractual negotiations were not privileged.
4. I agree with the prosecutor that the documents in category C are privileged, for the reasons given by the prosecutor. The communications between the prosecutor's solicitor and Dr Martens were made when the prosecution had already commenced and with a view to obtaining expert evidence by Dr Martens to be used in the prosecution. In these circumstances, communications concerning the fee agreement for Dr Martens to prepare an expert report fall within the class of documents to which legal privilege extends described by Lockhart J in paragraph (e) of Trade Practices Commission v Sterling (1979) at 246.
5. The documents in category E are described by the prosecutor as being emails from Mr Alex Bourne (an officer of the EPA) to Ms Julie Porter (an officer of AECOM) concerning costings, fees and the preparation of technical investigation reports. Document 2, which was dated 1 October 2015, included a reference to a communication between a lawyer for the prosecutor and Ms Porter. Document 14 was dated 19 October 2015.
6. The prosecutor submitted that the documents in category E are communications passing between an officer of the prosecutor involved in the investigation and consequent prosecution of the offences and an officer of AECOM who had been engaged to undertake investigations, at a time when the prosecution was reasonably anticipated, for the purpose of advancing the prosecutor's case. The prosecutor cited Ritz Hotel Ltd v Charles of the Ritz Ltd (No 22) (1988) 14 NSWLR 132 at 133 that: "A recognised head of legal professional privilege embraces communications, passing between a party (or its representative) and a third person, if they are made with reference to pending litigation for the purpose of the preparation of the case of that party, including the preparation of material to be used as evidence in that case."
7. The prosecutor submitted that legal professional privilege can attach to a communication between an officer of the prosecutor who is not the lawyer for the prosecutor and an expert witness, provided the communication is confidential in the hands of the person from whom production is sought: Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) (2011) 283 ALR 299; [2011] FCA 1057 at [14].
8. Ms Anderson's affidavit establishes that the relevant officers of AECOM clearly understood that the work they were performing on behalf of the prosecutor was to be kept confidential. Hence, the communications between the prosecutor and the officers of AECOM were intended to be kept confidential in the hands of AECOM, being the person from whom production is now sought: Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) at [14].
9. Furthermore, the prosecutor noted that document 2 refers to confidential communications between a lawyer for the prosecutor and Ms Porter.
10. The defendants submitted that the documents in category E are not privileged because, first, the officer of the prosecutor was not a lawyer for the prosecutor and, second, the communications concerned contractual negotiations about the cost and scope of investigations and the analysis to be performed by the experts at AECOM and not the prosecutor being provided with legal advice or professional legal services. In the second regard, the defendant submitted that communications with a potential expert witness, prior to the expert being contractually engaged and being subject to any confidentiality obligation, will not be privileged at common law: Ritz Hotel Ltd v Charles of the Ritz Ltd (No 22) (1988) 14 NSWLR 132 at 133-135.
11. I uphold the prosecutor's claim for privilege over the documents in category E for the reasons given by the prosecutor, which address the defendants' arguments. The communications were made between an officer of the EPA and a third person, Ms Porter, for the purpose of the preparation of the prosecutor's case for pending litigation, and concerned the preparation of evidence to be used as evidence in that case. While the officer of the EPA was not a lawyer, Ms Porter understood that the communications were to be kept confidential and therefore a relationship of confidentiality existed between the prosecutor and Ms Porter: see Ritz Hotel Ltd v Charles of the Ritz Ltd (No 22) at 133-134.
12. The documents in category F are described by the prosecutor as being emails between AECOM officers (including AECOM corporate counsel, Mr Jensen), referring to legal advice provided by Mr Kelly, the solicitor for the prosecutor. The three documents in category F are all dated 11 August 2016 and concern preparation of affidavits by officers of AECOM. One of the documents attached a pro forma affidavit.
13. The prosecutor submitted that as the documents record communications with and advice provided by the prosecutor's solicitor Mr Kelly to officers of AECOM, they are both confidential and privileged.
14. Furthermore, the documents concerned the preparation of draft affidavits to be communicated to the prosecutor's lawyer for the purposes of the prosecution. As White J said in New Cap Reinsurance Corp Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 at [22]: "A document brought into existence by the expert for the purpose of being communicated to the client's lawyer for the purposes of the litigation would be privileged on any view of the authorities at common law, provided they have the necessary quality of confidentiality (Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 QdR 141 at 153, 162; Australian Securities Investments Commission v Southcorp Ltd (2003) 46 ACSR 438 at 441-442, [21] (1) and (3); Brookfield v Yevad Products Pty Ltd [2006] FCA 1180 at [12]-[16])."
15. The defendants submitted that the documents in category F are internal AECOM emails between AECOM officers, all of whom have sworn affidavits in the prosecution. The defendants disputed the privilege claim on two grounds. First, although the prosecutor said that the documents referred to legal advice provided by the prosecutor's solicitor, no description of the legal advice is given. The defendants argued that the advice could be Mr Kelly's instructions to these experts, not legal advice to the prosecutor at all.
16. Second, insofar as the documents concerned the preparation of draft affidavits, the defendants submitted that draft affidavits will not be privileged if prepared for use by the expert witness for use by him or her, as the document will not have been prepared for the dominant purpose of the client being provided with legal advice or professional legal services, citing New Cap Reinsurance Corp Ltd (in liq) v Renaissance Reinsurance Ltd at [31]. The defendants submitted that affidavits created for the purpose of being served on the defendants and included in the prosecution brief will not necessarily have been prepared for the dominant purpose of providing legal advice or professional legal services but rather the dominant purpose of informing the Court and the defendants of the facts and opinions sought to be established by the affidavit, citing Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd (2009) 74 NSWLR 469; [2009] NSWSC 225 at [22]-[28].
17. The prosecutor responded to this second argument submitting that there is a clear distinction between draft affidavits and witness statements and the final signed versions prepared for the purpose of putting facts before the Court and which were filed in the Court and served on the defendants. This distinction was clearly made by White J in Buzzle Operations Pty Ltd v Apple Computer Australia Pty Ltd at [25], citing the decision of the Full Court of the Federal Court in Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547; [2007] FCAFC 32 at [73] that "drafts and final proofs are by nature and in fact different documents".
18. I uphold the prosecutor's claim for privilege over the documents in category F, for the reasons given by the prosecutor. I see no basis for inferring that the prosecutor's description of the documents referring to "legal advice" provided by the solicitor for the prosecutor was not in fact legal advice but merely instructions.
19. Insofar as the documents concerned the reparation of draft affidavits, they are still privileged. The findings in New Cap Reinsurance Corp Ltd (in liq) v Renaissance Reinsurance Ltd and Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd that a final affidavit filed in the proceedings and served on the other party is not privileged is not applicable to draft affidavits. The final affidavit that was filed in the proceedings and served on the defendants might be said to have been prepared for the purpose of disclosure of the matters in the affidavit to the Court and to the defendants. This is not the case in relation to a draft affidavit, as was recognised in New Cap Reinsurance Corp Ltd (in liq) v Renaissance Reinsurance Ltd at [29], [35]-[37] and Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd at [25].

Privilege not waived over documents in categories G and H

1. The documents in categories G and H are privileged, as the defendant accepted, if the common law principles apply. The defendants argued, however, that the prosecutor has waived privilege over the documents in categories G and H.
2. The documents in category G are described by the prosecutor as being draft affidavits by AECOM officers submitted or intended to be submitted to Mr Kelly and associated communications, including with Mr Jensen. There are 52 documents in category G, dated between 12 August 2016 and 2 September 2016, relating to the draft affidavits.
3. The documents in category H are described by the prosecutor as being draft versions of AECOM's investigation report. During the course of the hearing, the prosecutor waived privilege over document 176. Document 177 is a draft of AECOM's investigation report dated 9 December 2015 and was sent to Mr Bourne on 10 December 2015. Document 178 is the same draft report as document 177, also dated 9 December 2015, however it contains additional text in comment boxes in the margins of the document that are not visible in document 177. Document 178 was not sent to Mr Bourne.
4. It is common ground that the defendants bear the onus of establishing, on the balance of probabilities, that privilege has been waived. The defendants submitted that waiver of privilege at common law occurs when the party entitled to the privilege performs an act which is inconsistent with the confidence preserved by it: Mann v Carnell (1999) 201 CLR 1 at [28]-[29]. The defendants submitted that they would discharge the onus on them if the Court is satisfied that the advice of Mr Kelly (and possibly Mr Jensen) influenced the content of the final reports beyond the usual adjustment of draft expert opinion to render it admissible. If the advice did influence the content in this way, the service of the final affidavits and reports may have waived any privilege that formerly existed in these communications and documents, either wholly or to an extent depending on how and to what extent the content was so influenced, citing Traderight (NSW) Pty Ltd v Bank of Queensland Ltd [2013] NSWSC 211 at [17], [23].
5. The defendants did not allege that any advice or comments provided by the EPA or Mr Jensen to the experts did influence the content of the final affidavits and expert reports, as the defendants have not had access to the draft documents or that advice or comments. The defendants accepted that there may be nothing improper in an expert adopting the suggestions of the client or legal advisors; the point the defendants make is that if this is done, however, privilege over the communications making those suggestions would generally be waived once the final affidavits and expert reports adopting those suggestions are served.
6. The defendants further submitted that privilege has been waived over drafts of the final expert reports, which were served on the defendants, as the drafts are reasonably necessary to understand the final reports, citing Towney v Minister for Land and Water Conservation (NSW) (1997) 76 FCR 401 at 412-414. This argument was partly addressed by the prosecutor waiving privilege over one of the draft reports, document 176.
7. The prosecutor submitted that the defendants' submission relies on the court accepting (without any evidence) that lawyers acting for the EPA have improperly influenced the contents of the expert evidence of the prosecutor's witnesses.
8. In any event, the prosecutor submitted that the documents in categories G and H fall within the description of documents considered by Ball J in Traderight (NSW) Pty Limited v Bank of Queensland at [23], which led his Honour to conclude that privilege had not been waived. The communications between the legal advisors and the expert, for the purpose of giving instructions and commenting on the form of the expert's report, did not cause privilege in the communications to be lost.
9. The prosecutor submitted that service of the final expert report on the defendants did not waive privilege over the drafts of the expert report. This is not a case like Towney v Minister for Land and Water Conservation (NSW) (1997) 76 FCR 401 where privilege was lost in relation to particular documents which were specifically identified and relied on for the purpose of completing the final report. Access to those identified documents was reasonably necessary to enable a proper understanding of the final report. The prosecutor submitted that, unlike in Towney v Minister for Land and Water Conservation (NSW) the defendants have not articulated a forensic purpose which demonstrates why the draft documents were reasonably necessary to enable a proper understanding of the final report. The final report does not identify the draft reports as having been relied on for the purpose of completing the final report.
10. I agree with the prosecutor that the privilege over the documents in categories G and H has not been waived, for the reasons given by the prosecutor. I see no basis for inferring that advice and comments by the EPA or Mr Jensen influenced the content of the final reports and affidavits. If legal advisors have communicated with an expert in a way that is consistent with discharging their obligation to assist the expert to properly address the questions asked of them and present their opinions in a clear and admissible form, that is not a reason of itself to infer that the legal advisors have failed to discharge their obligation to ensure that the opinion expressed by the expert is an opinion the expert holds for the reasons that the expert gives: see Traderight (NSW) Pty Ltd v Bank of Queensland Limited at [23].
11. Furthermore, the defendants have not discharged the onus of establishing that the final expert reports were based on the draft reports such that disclosure of the draft reports would be reasonably necessary to enable a proper understanding of the final reports. Document 176 may have fallen into a different class but the prosecutor agreed to waive privilege over that document.

Conclusion, costs and orders

1. I find that the prosecutor's privilege claim is to be determined by application of the common law. The documents in categories A, B, C, D, E, F, G and H are privileged at common law. Privilege has not been waived over the documents in categories G and H. The prosecutor waived privilege over document 176 during the hearing of the notice of motion and agreed to provide the document to the defendant. The motion should therefore be dismissed.
2. It is common ground that the Court does not have power to make an order on costs at this stage of the proceedings. The defendants submitted that, if they were successful, the costs of the motion should be reserved, so that the issue of costs can be revisited and determined at the conclusion of the proceedings. However, this is not necessary as the defendants have been unsuccessful.
3. The Court orders that the motion is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2017