Plaintiff v Defendant

2 WCL seeks to defeat QUBE's claim for client legal privilege by establishing that QUBE acted inconsistently with its assertions of privilege, on the basis that QUBE had knowingly and voluntarily disclosed the substance of the subject evidence and/or so disclosed by consenting, expressly or by implication, to its solicitors Kliger Partners Lawyers ('Kliger Partners') communicating the substance of that evidence to WCL.

3 This appeal is brought by WCL pursuant to Rule 77.06 of the Supreme Court (General Civil Procedure) Rules 2005 ('Supreme Court Rules'). Under Rule 77.06 the nature of this appeal is by way of a re-hearing in which WCL seeks to establish appellable error as asserted by its Notice of Appeal. Such appeals are no longer by way of re-hearing de novo.

4 An appeal court dealing with an appeal pursuant to Rule 77.06 should be assisted by, and will ordinarily focus on the moving party's specified grounds in its Notice of Appeal. Nevertheless, the essential nature of the appeal under rule 77.06 is a re-hearing and the court will after such re-hearing give the judgment which in its opinion ought to have been given in the first instance: Fox v Percy.[1] The appeal court may, where appropriate, do so in reliance on further evidence.[2]

5 Accordingly, I have considered all aspects of the arguments put forward by WCL, notwithstanding QUBE's protests about the nature and scope of the case relied on by WCL.[3]

The object of WCL's application for production of documents

6 Specifically, WCL seeks production of documents constituting the instructions provided by QUBE to Kliger Partners referred to in an email sent on 5 March 2012 by Kliger Partners to WCL.[4] The scope of the documents in respect of which production is sought is detailed in Kliger Partners' email to Norton Gledhill dated 25 March 2013.[5]

P&O Trans Australia (Victoria) Pty Ltd ("POTA") [QUBE]

Wimmera Container Line Pty Ltd ("WCL")

I act on behalf of [QUBE].[6]

[QUBE] has provided me with a copy of your purported letter of termination dated 5 March 2012 ("Notice of Termination"), under which WCL "gives notice that it terminates the arrangement" for rail haulage services provided by [QUBE] to WCL.

I am instructed that:-

1. [QUBE] and WCL agreed (amongst other things) for WCL to engage [QUBE] to provide a dedicated rail haul service commencing August 2011 ("Services") for a term of three years commencing August 2011 ("Agreement").
2. WCL was made aware that the three year term was necessary as [QUBE] would be required to incur significant costs in committing the required rolling stock and locomotives to provide the Services;
3. it was only after the Agreement was reached that [QUBE], with WCL's full knowledge, committed the rolling stock and locomotives to facilitate the provision of the Services;
4. [QUBE] began providing the Services in August 2011 and continues to do so; and
5. draft written Services Agreements have been provided to WCL by [QUBE] but have not been signed.

Whilst on our preliminary instructions it would appear that there is no signed agreement between WCL and [QUBE] for the provision of the Services, a binding legal contract nonetheless exists. It is not necessary for an agreement to be signed or in writing for the law to infer that a binding contract exists. A contract can be:

1. inferred from (amongst other things), conduct which indicates that the parties did in fact intend to contract (See: Vroon BV v Foster's Brewing Group Ltd [1994] VicRp 53; [1994] 2 VR 32 at 86, 89); and
2. implied in the absence of a signed agreement where the parties' conduct is consistent with the hypothesis that an agreement was in fact made by them (See: WA Dewhurst and Co Pty Ltd v Cawrse [1960] VicRp 44; [1960] VR 278 at 282).

1. the above legal authorities,
2. our preliminary instructions; and
3. a review of the materials provided by [QUBE],

it is our view that the Agreement between [QUBE] and WCL is legally enforceable and in the absence of a breach, only capable of being terminated in accordance with clause 7 of the Services Agreements or at the expiry of the term of 3 years.

Hence, WCL's Notice of Termination is rejected and WCL is obliged to continue to comply with its obligation to pay for the Services, even if they are not taken.

Moreover, it is undeniable that WCL misled [QUBE] and caused it to incur significant costs in committing the locomotives and rolling stock on the basis of clear representations that the Services would be supplied for at least three years.

Further, WCL will be estopped from resiling from the 3 year term because it encouraged [QUBE] to commit the locomotives and rolling stock in reliance on the representation by WCL that it had engaged [QUBE] for a three year term (See Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387; 76 ALR 513. See also Mobil Oil Australia Ltd v Lyndel Nominees Pty Ltd [1998] FCA 205; (1998) 81 FCR 475; 153 ALR 198).

In summary, WCL is, and remains, liable to [QUBE] for the charges payable under the Agreement for the full three year term (including fees payable in relation to take or pay).

[QUBE] is accordingly entitled to issue proceedings for recovery if WCL fails to make payment as required under the Agreement, together with penalty interest and legal costs.

(i) Affidavit of Darren Troy Brown sworn 2 April 2013.

(i) Affidavit of Andrew John Green sworn 20 February 2013, and exhibits;

(ii) Affidavit of Andrew John Green sworn 28 March 2013, and exhibit.

10 The following written submissions were relied upon by the parties:

(iv) WCL's submissions on Appeal dated 19 August 2013;

(v) QUBE's submissions on Appeal dated 19 August 2013;

(vi) QUBE's submissions on Appeal dated 22 August 2013;

(vii) WCL's submissions on Appeal dated 22 August 2013.

11 By Notice of Appeal dated 5 July 2013, WCL appealed against the orders of the Associate Judge. These orders dismissed WCL's claim for access to documents which were said by QUBE to be privileged and ordered WCL to pay QUBE's costs of the application. The grounds of the WCL Notice of Appeal are as follows:

1. The Associate Judge erred in finding (at J17) that pursuant to section 122(3) of the Evidence Act 2008 (Vic) (Act), the defendant, in order to demonstrate an inconsistency, was required to show that the plaintiff knowingly and voluntarily disclosed the substance of the Evidence.
2. The Associate Judge erred in not finding that pursuant to section 122(3) of the Act, the defendant, in order to demonstrate an inconsistency was required to show either:

(a) that the plaintiff knowingly and voluntarily disclosed the substance of the Evidence; or

(b) that the substance of the Evidence had been disclosed with the express or implied consent of the plaintiff.

1. The Associate Judge erred by finding (at J22) that the evidence given by Mr Brown, the solicitor for the plaintiff, in his affidavit sworn 2 April 2013 as follows:

(a) "It was never my intention that the 5 March 2012 email amounted to a waiver of the Plaintiff's privilege"; and

(b) "But if the proper construction of that email is such that it is interpreted as amounting to a waiver of privilege, then I say that I had no intention to so waive the Plaintiff's privilege, any such waiver by me was inadvertent and I had no instructions from the Plaintiff to so waive its privilege"

warranted the conclusion that the substance of the Evidence had not been disclosed knowingly and voluntarily by the plaintiff within the meaning of section 122(3)(a) of the Act.

1. The Associate Judge erred by not finding that the substance of the Evidence had been disclosed by the plaintiff knowingly and voluntarily within the meaning of section 122(3)(a) of the Act.
2. The Associate Judge erred by failing to give reasons for not finding that the substance of the Evidence had been disclosed with the express or implied consent of the plaintiff within the meaning of section 122(3)(b) of the Act.
3. The Associate Judge erred by not finding that the substance of the Evidence had been disclosed with the express or implied consent of the plaintiff within the meaning of section 122(3)(b) of the Act.
4. The Associate Judge erred by finding (at J29 and J30) that there was no inconsistency within the meaning of section 122(2) of the Act by reason of the deployment of the Evidence by the plaintiff.
5. The Associate Judge erred by not finding that by reason of the deployment of the Evidence by the plaintiff the plaintiff acted in a way that was inconsistent within the meaning of section 122(2) of the Act.
6. The Associate Judge erred by finding (at J34) that there was no inconsistency within the meaning of section 122(2) of the Act by reason of the plaintiff pleading a case inconsistent with the Evidence.
7. The Associate Judge erred by not finding that by reason of the plaintiff pleading a case inconsistent with the Evidence the plaintiff acted in a way that was inconsistent within the meaning of section 122(2) of the Act.

12 The Notice of Appeal also defines the "Evidence" to which access is sought as the instructions set out in the email of 5 March 2012.[7]

13 QUBE has filed three versions of its Statement of Claim in this proceeding. Part of WCL's submissions seeking to establish inconsistency and waiver relies on an argument that none of QUBE's pleadings, including the latest iteration (the Further Amended Statement of Claim ('FASOC')),[8] refer in precise terms to the alleged agreement asserted in the email of 5 March 2012. One such variance is that the QUBE pleadings do not allege that QUBE was to provide a dedicated rail haul service for three years commencing in August 2011. The FASOC alleges that the "commencement date" was 4 October 2009.[9]

QUBE's allegations of relevance in its Further Amended Statement of Claim dated 22 February 2013 ( FASOC )

14 In essence QUBE alleges in its FASOC, insofar as is relevant to this appeal, that:

(i) An agreement was made on or about 17 July 2009 between QUBE and WCL (the 2009 Agreement) pursuant to which QUBE agreed to provide rail transport, road transport and container hauling services ("Services") to WCL.[10]

The 2009 Agreement was partly written and partly to be implied, although QUBE's pleading does not assert an executed or signed contract or Services Agreement.

(ii) From 4 October 2009 WCL used and accepted QUBE's rail services and paid QUBE at what QUBE says were the agreed rates.[11]

(iii) QUBE would provide the services to WCL for three years from 4 October 2009.[12]

(iv) There were terms of the 2009 Agreement, inter alia that QUBE would provide, and WCL would accept, the Services commencing 4 October 2009.[13]

(v) QUBE alleges that in April 2011 WCL represented that in exchange for QUBE investing in the necessary equipment to support a change to a five day week service, WCL would agree to a three year extension of the 2009 Agreement ("the Representations").[14]

(vi) In May 2011 WCL requested QUBE to provide the Services five days a week and thereby confirmed and/or repeated the Representations.[15]

(vii) In March 2012 WCL breached and repudiated the 2009 Agreement and WCL notified QUBE of its intention to cease accepting its Services as of 28 April 2012.[16]

(viii) On 13 April 2013 QUBE accepted WCL's repudiation and terminated the 2009 Agreement.[17]

(ix) As a result of WCL's breaches and repudiation QUBE has suffered loss and damage.[18]

(x) Alternatively, WCL misled and deceived QUBE and in the result QUBE suffered loss and damage, including consequential loss of opportunity of approximately $19.2M.[19]

QUBE accepts that the documents sought exist and are relevant

15 QUBE accepts that the documents sought in the application before the Associate Judge exist and that they are relevant. QUBE has filed and served an affidavit of documents. However, QUBE objects to producing the documents sought on the grounds that they are privileged and WCL asserts that the privilege has been waived.

Evidence Act 2008 (Vic)

16 Much of the argument on this appeal focused on sections of the Evidence Act 2008 (Vic) ('the Act'), in particular ss 122(2) and (3)(a) and (b). Those provisions of the Act, and s 118 and s 131A which are also relevant, are set out below.

17 Section 118 establishes legal advice privilege. It provides:

118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of-

(a) a confidential communication made between the client and a lawyer; or

(b) a confidential communication made between 2 or more lawyers acting for the client; or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person-

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

18 Section 122 of the Act relates to the loss of client legal privilege. Subsections 122(2), (3) and (4) apply in determining whether the privilege claimed by QUBE has been waived. They provide:

1. Loss of client legal privilege-consent and related matters

(1) ...

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

(3) Without limiting subsection (2), a client or party is taken to have so acted if-

(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or

(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.

(4) The reference in subsection (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.

19 Section 131A(1) of the Act provides some legislative guidance as to the court's approach to determining the sort of objection, raised in this instance by QUBE:

131A Application of Division to preliminary proceedings of courts

(1) If-

(a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1C or 3; and

(b) the person objects to giving that information or providing that document-

the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.

(2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following-

(a) a summons or subpoena to produce documents or give evidence;

(b) pre-trial discovery;

(c) non-party discovery;

(d) interrogatories;

(e) a notice to produce;

(f) a request to produce a document under Division 1 of Part 4.6;

(g) a search warrant.

20 The learned Associate Judge correctly noted that the onus falls on WCL to persuade the Court that privilege has been lost.[20] In Hodgson v Amcor Ltd [No 4],[21] Vickery J said that:

The guiding principle governing the concept of the "burden of proof" is relatively simple. He who asserts a matter must prove it, but he who denies it need not prove it. Such a principle is of long standing. It can be traced back to Paulus, a Roman jurist of the Second Century AD and is expressed in the Latin maxim ei qui affirmat non ei qui negat incumbit probatio. In this case the legal or persuasive or ultimate burden of proof in respect of the matters provided in s 122(2) of the Evidence Act lies on the party who asserts that by the conduct alleged, the privilege has been lost. In this case that party is Amcor. [22]

21 WCL defines the key issue for determination as being:

Whether the learned Associate Judge erred in finding that documents which constitute, record or evidence the instructions from QUBE which are disclosed in the 5 March 2012 email need not be produced for inspection on the basis that there has been no waiver of legal professional privilege which reposed in those documents.[23]

22 The substance of WCL's submissions on appeal is as follows:

(i) QUBE has acted inconsistently with the maintenance of privilege because QUBE has knowingly and voluntarily disclosed the substance of the evidence to another person and/or the substance of the evidence has been disclosed with the express consent of QUBE within the meaning of s 122(3) of the Act.[24]

(ii) QUBE has acted inconsistently with the maintenance of privilege because the pleaded agreement between WCL and QUBE alleged by QUBE in its FASOC differs from the agreement which Kliger Partners referred to in the 5 March 2012 email.[25]

(iii) WCL notes that QUBE accepts that the documents which constitute, record or evidence the instructions referred to in the Kliger Partners email dated 5 March 2012 exist and have been listed by Kliger Partners in an email dated 25 March 2013.[26]

(iv) QUBE has confirmed the existence of such documents by Kliger Partners' email to Norton Gledhill dated 25 March 2013.[27]

(v) WCL's submission of 19 August 2013 notes that at the hearing before the learned Associate Judge on 3 April 2013, counsel for QUBE conceded that the email dated 5 March 2012[28] was sent by Mr Brown, of Kliger Partners, on the instructions of his client QUBE.[29] QUBE does not argue to the contrary.[30]

(vi) WCL also submits that the documents defined as the record or evidence of the instructions alluded to in the Kliger Partners email of 5 March 2012 (as detailed in the Kliger Partners email to Norton Gledhill dated 25 March 2013)[31] are relevant to the issues in the proceeding.[32] This is accepted by QUBE.[33]

23 In its submissions WCL contends that the FASOC pleads a case fundamentally inconsistent with the "instructions" disclosed in the 5 March 2012 email. WCL points to what it submits are relevant inconsistencies between the commencement date of the alleged agreement as referred to in the email dated 5 March 2012[34] and the commencement date of 4 October 2009 referred to in the FASOC.[35] WCL also highlights what it says is an inconsistency between the QUBE pleading and the information in the 5 March 2012 email, including that the pleading[36] alleges representations in April 2011 that WCL would agree to a further three year extension of a 2009 agreement[37] and the email of 5 March 2012 does not raise these matters.

24 WCL submits[38] that because the FASOC[39] puts QUBE's state of mind in issue as at the date of the said alleged representations, the inconsistencies between those alleged representations and what is said in the email of 5 March 2012 are relevant. This will, WCL submits, result in it being unfairly prejudiced unless it is entitled to test QUBE's pleading in relation to the alleged representations by reference to the documents constituting the "instructions" referred to in the Kliger Partners email of 5 March 2012.

25 WCL also submits that as a matter of fairness QUBE should produce the documents underlying the "instructions" referred to in the email of 5 March 2012. This, WCL submits, will allow it to be able to interrogate and challenge QUBE's likely state of mind as to the alleged agreement.

26 WCL also submits that the words of s 122 of the Act including subsection (3)(a) and (b) are clear and to the effect WCL submits. As such, WCL submits there is no need to resort to the approach suggested by QUBE; the approach taken in Project Blue Sky Inc v Australian Broadcasting Authority or the Interpretation of Legislation Act 1984 (Vic) in relation to interpreting statutes in a purposive and not merely literal way.[40]

Section 122(3)(b) Argument: s 122(3)(b) requires disclosure "knowingly and voluntarily"

27 WCL submits that as a result of the application of ss 122(2) and (3) of the Act, QUBE making knowing and voluntary disclosure of relevant instructions in the 5 March 2012 email, and the disclosure being made with QUBE's express consent, QUBE is not now able to claim privilege over the documents which constitute, record or evidence the instructions referred to in that email.[41]

28 WCL contends that given the provisions of s 122(3) of the Act, which deem inconsistency if there is a disclosure which is expressly or impliedly consented to by the privilege holder, the learned Associate Judge erred in finding[42] it was necessary for WCL to show that QUBE knowingly and voluntarily disclosed the substance of the instructions set out in the 5 March 2012 email in order to demonstrate an inconsistency. This submission by WCL appears to be directed primarily to s 122(3)(b) which does not employ the words "knowingly and voluntarily". WCL's point appears to be that provided the substance of the evidence had been disclosed with the express or implied consent of the client or party a deemed relevant inconsistency is made out under s 122(3)(b) of the Act and there is no requirement to establish knowing and voluntary disclosure.[43]

29 As an adjunct submission WCL says that the learned Associate Judge erred in that his Honour "seems" to have held that it is a necessary condition for an implied waiver of privilege under s 122(3)(a) of the Act that the party waiving privilege intends to do so.[44] WCL refers to the judgment of White J in Fenwick v Wambo Coal Pty Ltd (No 2),[45] to emphasise that a mistaken view that the privilege could not be claimed does not necessarily affect the fact that disclosure has occurred and such disclosure was both knowing and voluntary.[46]

30 WCL submits that the Associate Judge should have found that disclosure of the substance of the instructions in issue with the express or implied consent of QUBE is sufficient to waive privilege by force of s 122(3)(b) of the Act. WCL adds that in light of the concession made by QUBE's senior counsel that the 5 March 2012 email was sent by Kliger Partners on the instructions of their client, it must follow that the disclosure in the email was made with the express consent of QUBE and the Associate Judge erred in not so finding and also erred by not giving any reasons in relation to this issue.[47]

31 WCL argues that on a proper construction of the Act and the concession to the effect that the 5 March 2012 email was sent on instructions, his Honour the Associate Judge should have found that the disclosure of instructions in the email was both knowing and voluntary and made with the express consent of QUBE.[48]

32 WCL points out that the Associate Judge did not find QUBE had made knowing and voluntary disclosure via Kliger Partners' email of 5 March 2012.

33 WCL submits, in relation to his Honour finding that Mr Brown of Kliger Partners had been careless and inadvertent,[49] that on no view could the disclosure of the instructions in the email be said to be inadvertent, that is, the physical act of disclosure, which WCL submits is the relevant step under the Act, cannot be correctly characterised as inadvertent.[50]

34 WCL submits that the physical act of disclosure is the material fact upon which subsection 122(3)(a) and (b) pivot. Therefore, although Mr Brown may not have known the legal character of the consequences of the disclosure, and he may have been careless or have acted inadvertently as to those consequences, those explanations are irrelevant.[51]

35 Furthermore, WCL argues that the Associate Judge's approach to the relevance of Mr Brown's evidence[52] was erroneous because the Associate Judge considered cases concerning the physical act of disclosure and whether it was careless or inadvertent. WCL argues that in this matter there is no basis to conclude that there was any "carelessness or inadvertence as to the physical act of disclosure", because it was obvious to Mr Brown and QUBE that the email of 5 March 2012 was revealing instructions and was doing so in a voluntary fashion.[53]

36 WCL also argues that the approach taken by the Associate Judge deprives s 122(3)(a) of the Act of effect because on the Associate Judge's reasoning that section does not operate unless the disclosing party was aware a waiver of privilege would result. It is argued that such a construction would necessarily amount to requiring a party relying upon that section to prove express waiver.[54]

37 WCL cites and relies upon the explanatory memorandum for the Act which reflects that s 122 is concerned with the behaviour of the holder of the privilege, as opposed to the intention of the holder of the privilege.[55]

38 WCL's submission is that ss 122(2) and (3) of the Act are concerned primarily with implied or imputed waiver and the consequences for the privilege of acting inconsistently with the maintenance of that privilege. It further argues that there is therefore no basis for seeking to limit such a waiver by reference to a requirement that actual intention of the privilege holder be established.[56]

The Deployment Argument: QUBE relinquished client legal privilege by deploying what it had instructed its lawyers for commercial advantage

39 WCL also submits that QUBE deployed the instructions referred to in the email dated 5 March 2012 with a view to persuading WCL that it was "obliged to continue to comply with its obligations to pay for the Services even if they were not taken".[57] WCL, relying on Bennett v Chief Executive Officer of the Australian Customs Service[58] ('Bennett'), asserts that the use of instructions which might otherwise be privileged for a commercial advantage will give rise to a loss of privilege in those instructions.[59] In Bennett Gyles J stated that:

The authorities to which I have referred show that it is well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege.[60]

40 WCL points out that this principle was accepted by Croft J in Priceline Pty Ltd v JHY Nominees & Ors Pty Ltd.[61] WCL submits that the authorities establish in relation to waiver of privilege that deployment for the purpose of persuading WCL to adopt a particular course, that is to comply with what QUBE asserted was the contractual position, can bring about such waiver.

41 Accordingly, WCL argues it was erroneous of his Honour to find that there was no relevant inconsistency within the meaning of s 122 of the Act by reason of the deployment of the instructions set out in the 5 March 2012 email.[62]

42 QUBE submits that WCL is required, as appellant, to identify specific and relevant appellable errors on the part of the Associate Judge.[63] Accordingly, QUBE's submissions specifically address WCL's ten Grounds of Appeal set out above. For completeness, I summarise the response of QUBE to all the Grounds of Appeal and I also deal with some of the less significant issues in passing.

43 The first two Grounds of Appeal of WCL are as follows:

1. The Associate Judge erred in finding (at J17) that pursuant to section 122(3) of the Evidence Act 2008 (Vic) (Act), the defendant, in order to demonstrate an inconsistency, was required to show that the plaintiff knowingly and voluntarily disclosed the substance of the Evidence.
2. The Associate Judge erred in not finding that pursuant to section 122(3) of the Act, the defendant, in order to demonstrate an inconsistency was required to show either:

(a) that the plaintiff knowingly and voluntarily disclosed the substance of the Evidence; or

(b) that the substance of the Evidence had been disclosed with the express or implied consent of the plaintiff.

44 It is first necessary to consider the relevant paragraph of the judgment which is being appealed. In the Associate Judge's decision his Honour stated that:

Pursuant to section 122(3) the defendant, in order to demonstrate an inconsistency, must show that the plaintiff knowingly and voluntarily disclosed the substance of the evidence.[64]

45 Grounds of Appeal 1 and 2 assert that the Associate Judge erred in finding that s 122(3) of the Act is to the effect summarised by his Honour in the paragraph quoted above. WCL argues in Ground 2 that the Associate Judge should have found that, pursuant to s 122(3) of the Act, in order to demonstrate an inconsistency, WCL was required to show either that:

(a) QUBE knowingly and voluntarily disclosed the substance of the Evidence; or

(b) the substance of the Evidence had been disclosed with the express or implied consent of QUBE.

46 QUBE points out that his Honour referred specifically to the full text of s 122(3) of the Act[65] and submits that it is accordingly readily inferred that when reaching his conclusions[66] his Honour had in mind, and took into account, the provisions of s 122(3) including s 122(3)(b).

47 I accept this submission. I infer that his Honour took into account the provisions of s 122(3)(b). This is because of the reference made by his Honour to the full text of s 122(3)[67] and the fact that his Honour made it clear[68] that he accepted the evidence of Darren Brown, Senior Associate at Kliger Partners . His Honour was satisfied that it was never Mr Brown's intention that the subject email would amount to a waiver of QUBE's privilege.

48 I also conclude that his Honour accepted and relied upon[69] Mr Brown's evidence that if unintentionally his communication of 5 March 2012 amounted to waiver by him, then that was inadvertent and furthermore he had no instructions from QUBE to waive privilege. His Honour's view of this evidence is confirmed by what his Honour says on this same aspect later in his judgment.[70]

49 Further, in my view it is clear on his Honour's reasoning quoted above[71], read together with the paragraphs which follow, that it was not relevant for his Honour to refer to the potential demonstration of inconsistency provided for by s 122(3)(b) of the Act, which is concerned with disclosure on the basis of express or implied consent of the party seeking non-disclosure of a document. This is because his Honour's view was that there had been no relevantly "inconsistent" conduct by QUBE and there was no "knowing and voluntary disclosure of the substance of the evidence".[72]

50 For completeness I also note that in my view his Honour was correct in concluding[73] that subsection 122(4) does not apply where, as his Honour found, there had been no knowing and voluntary disclosure.

51 QUBE also submits that any relevant disclosure under s 122(3)(a) and (b) requires disclosure of the "substance of the evidence" and it is not enough that there be a bare reference to advice or instructions. Rather, the substance of the advice or instructions must be disclosed before there is a disclosure within the contemplation of the subsection.[74] QUBE relied on the case of NRMA Ltd v Morgan (No 2)[75] to support its submission.

52 QUBE argues that absurd consequences would follow if an excessively permissive view were taken of what amounts to a disclosure of the "substance" of otherwise privileged matters.[76]

53 The third and fourth Grounds of Appeal by WCL are as follows:

1. The Associate Judge erred by finding (at J22) that the evidence given by Mr Brown, the solicitor for the plaintiff, in his affidavit sworn 2 April 2013 as follows:

(a) "It was never my intention that the 5 March 2012 email amounted to a waiver of the Plaintiff's privilege"; and

(b) "But if the proper construction of that email is such that it is interpreted as amounting to a waiver of privilege, then I say that I had no intention to so waive the Plaintiff's privilege, any such waiver by me was inadvertent and I had no instructions from the Plaintiff to so waive its privilege"

warranted the conclusion that the substance of the Evidence had not been disclosed knowingly and voluntarily by the plaintiff within the meaning of section 122(3)(a) of the Act.

1. The Associate Judge erred by not finding that the substance of the Evidence had been disclosed by the plaintiff knowingly and voluntarily within the meaning of section 122(3)(a) of the Act.

54 The Associate Judge addressed this issue in his decision,[77] finding that the evidence given by Darren Brown of Kliger Partners[78] warranted the conclusion that the substance of the evidence had not been disclosed knowingly and voluntarily by QUBE within the meaning of s 122(3)(a) of the Act. His Honour stated as follows:

Mr Brown states quite clearly that it was not his intention to waive the plaintiff's privilege. Any such waiver by him was inadvertent and he had no instructions from the plaintiff to so waive the privilege. He had no knowledge of loss of privilege nor did he have knowledge that the fact of disclosure amounts to a disclosure of an otherwise privileged communication. At best he may have been careless.[79]

55 I note that the Associate Judge's view of Mr Brown's evidence was that Mr Brown was "at best ... careless" and further his Honour concluded that "here Mr Brown has been careless or inadvertent".[80]

56 WCL refers to his Honour's judgment, and in particular paragraphs [15] and [29], in apparent support of Ground 4 of the Notice of Appeal. At those paragraphs his Honour appears to address the question as to whether, at all events, the email of 5 March 2012 discloses "the substance of the Evidence". His Honour here observed that the disputed email "does not refer to legal advice".

57 I agree with his Honour's conclusion that on Mr Brown's evidence and the reasonable inferences available to be drawn therefrom, Mr Brown did not "knowingly and voluntarily" disclose the said instructions. Rather, at best Mr Brown made a careless or inadvertent disclosure.[81]

58 His Honour was quite correct in concluding that the email of 5 March 2012 does not refer to any legal advice. Further, insofar as that communication does refer to "instructions" and "preliminary instructions", in my view it does not disclose the substance of the Evidence which WCL argues to be the communications constituting the instructions set out in the Kliger Partners email of 5 March 2012. I refer to my reasons below as to the meaning of the phrase "substance of the evidence".

59 The fifth and sixth Grounds of Appeal of WCL are as follows:

1. The Associate Judge erred by failing to give reasons for not finding that the substance of the Evidence had been disclosed with the express or implied consent of the plaintiff within the meaning of section 122(3)(b) of the Act.
2. The Associate Judge erred by not finding that the substance of the Evidence had been disclosed with the express or implied consent of the plaintiff within the meaning of section 122(3)(b) of the Act.

60 In these Grounds, WCL criticised the Associate Judge for failing to give reasons for not finding that the asserted disclosure had been made with the express or implied consent of QUBE within the meaning of s 122(3)(b) of the Act.

61 However, in my view his Honour sufficiently exposed his reasoning in this regard.[82] In his judgment, his Honour identifies Mr Brown's evidence that he had no instructions from his client to waive privilege as the basis for this finding.

62 The seventh and eighth Grounds of Appeal are as follows:

1. The Associate Judge erred by finding (at J29 and J30) that there was no inconsistency within the meaning of section 122(2) of the Act by reason of the deployment of the Evidence by the plaintiff.
2. The Associate Judge erred by not finding that by reason of the deployment of the Evidence by the plaintiff the plaintiff acted in a way that was inconsistent within the meaning of section 122(2) of the Act.

63 In these Grounds WCL contends that his Honour failed to identify[83] inconsistency within the meaning of s 122(2) of the Act. WCL argues that, instead, his Honour should have found that the "deployment of the Evidence" by QUBE meant that there was a waiver of privilege.

64 The Associate Judge states[84] in substance that reading the relevant email as a whole, there is no reference to any legal advice and no relevant inconsistency on the basis that the email, which was in the nature of a letter of demand, was said to be based on instructions.

65 I agree with the learned Associate Judge that the consideration of whether or not inconsistency is manifested is a matter of fact and degree: Osland v Secretary, Department of Justice[85]. Here, for the reasons I set out below, I am not satisfied that WCL is able to identify any conduct on the part of the privilege holder which is inconsistent with its maintenance of privilege.

66 The Grounds of Appeal 9 and 10 of WCL are as follows:

1. The Associate Judge erred by finding (at J34) that there was no inconsistency within the meaning of section 122(2) of the Act by reason of the plaintiff pleading a case inconsistent with the Evidence.
2. The Associate Judge erred by not finding that by reason of the plaintiff pleading a case inconsistent with the Evidence the plaintiff acted in a way that was inconsistent within the meaning of section 122(2) of the Act.

67 Ground of Appeal 9 alleges that the Associate Judge erred in finding[86] there was no inconsistency within the meaning of s 122(2) of the Act by reason of QUBE pleading a case inconsistent with the "Evidence". The "Evidence" focused on by WCL are the "instructions" referred to in the email of 5 March 2012 and the documents communicating them referred to in the Kliger Partners email dated 25 March 2013.

68 The pleading, relevantly alleges the key matters which I have set out in paragraph [14] above. The fact that QUBE's solicitors' email of 5 March 2012 makes certain statements and puts forward certain assertions which are not precisely congruous with the allegations made by QUBE in its FASOC dated 22 February 2013, is not in my view an inconsistency which enlivens s 122(2) of the Act. I set out my reasons for this finding more fully in the section of the judgment below in relation to WCL's Inconsistency of Pleadings Argument.

69 Ground 10 raises WCL's arguments based on what are said to be QUBE's inconsistent pleadings. In my view, while there is an arguable inconsistency in the pleading of facts and circumstances and the assertion of an agreement, this is not inconsistent with QUBE maintaining privilege in respect of the communications constituting or underlying the "instructions" or "preliminary instructions" provided to its solicitors. Such "instructions" would have enabled QUBE's solicitors to be in a position to write the email of demand dated 5 March 2012. I again refer to my reasons which follow in relation to QUBE's Inconsistent Pleadings Argument.

70 Further, although the application of the provisions of s 122 of the Act is not informed by general considerations of fairness, I nevertheless observe that it would appear to produce an unfair outcome if a party asserting facts and a legal position arising therefrom in a letter of demand, which expressly stated in part that it was based on "preliminary instructions", lost client legal privilege which would otherwise attach; see Mann v Carnell.[87] However, I do not base my decision in this matter upon this observation as to probable unfairness on one scenario.

71 QUBE also argues that if Parliament intended by s 122(3)(b) to entirely do away with QUBE's common law rights to legal professional privilege in circumstances where such loss arose inadvertently and other than by "knowing and voluntary" conduct, or in circumstances where the consideration of fairness had no application, then that must be explicitly provided: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission.[88] Here QUBE submits there was no such express intention. Supporting this argument are the prefatory words in s 122(3), which make it plain that Parliament did not intend s 122(3) to limit or constrain s 122(2) in the way which WCL contends.[89]

Statutory regime - the Act Part 3.10: Division 1 - Privileges

72 Section 122 of the Act is to be construed bearing in mind the purpose of Part 3.10 of the Act dealing with client legal privilege and circumstances in which that privilege may be lost. Part 3.10 of the Act has as its general purpose the legislative clarification, uniformity and codification in relation to when certain evidence is not to be adduced because it is privileged and in so providing also provides for a loss of privilege in certain defined circumstances. The relevant provisions of that Part of the Act are set out above.[90]

73 Section 122(2) of the Act is the general operative provision which brings about a loss of client legal privilege where a client or party acts inconsistently with the maintenance of such privilege by the client or party.

74 It is at the outset necessary to consider whether the email of 5 March 2012 triggers the operation of s 122(2) of the Act. In order for this section to be applied, the email must satisfy the requirement that, on an objective fair reading, and taking account of all the relevant circumstances of the alleged disclosure, QUBE has acted in a way which is inconsistent with it maintaining privilege over the instructions and preliminary instructions referred to in that email.

75 I have set out the full text of the email of 5 March 2012 at paragraph [7] above. In summary, the substance of the email of 5 March 2012 sent by QUBE's solicitors:

(i) advances instructed facts which Kliger Partners considers relevant to the consequences of purported termination by WCL;

(ii) refers to the view of Kliger Partners that on its "preliminary instructions" no signed agreement appears to exist between WCL and QUBE for the provision of the subject Services;

(iii) expresses Kliger Partners' view that a binding legal contract nevertheless exists between the parties;

(iv) asserts Kliger Partners' view that, based on legal authorities as well as Kliger Partners' preliminary instructions and a review of the materials provided by their client QUBE, there is an agreement in existence pursuant to which QUBE was to provide a dedicated rail haul service commencing August 2011, for a term of three years;

(v) asserts that such agreement was only capable of being terminated in accordance with clause 7 of the "Services Agreement" or at the expiry of the term of three years;

(vi) asserts that WCL's Notice of Termination was ineffective and WCL is obliged to comply with its obligations to pay QUBE for the dedicated rail haul services, even if they are not taken;

(vii) closes by asserting that WCL is liable, in the circumstances, to its client and in substance threatens proceedings if WCL fails to make payment, penalty interest and legal costs to QUBE.

76 In my view, fairly read, the email of 5 March 2012 to WCL does not constitute an action by QUBE which is inconsistent with it intending to maintain privilege in connection with the documents which constitute, record or evince the instructions and preliminary instructions referred to in that email. Further, fairly read the 5 March 2012 email does not refer to any legal advice provided to or received by QUBE.

77 Rather, on a fair reading of the email, Kliger Partners assert their conclusions, on certain matters, arising as a result of the instructions to which they refer. Kliger Partners also refer to their understanding of the law in certain areas such as in relation to contract formation and rights of termination and estoppel.

78 The 5 March 2012 email is in the nature and style of a "letter of demand" and is a communication of the type commonly passing between solicitors and which unexceptionally and understandably records aspects of the communication based upon this lawyer's client's instructions. It may well be improper for such a lawyer's letter of demand to lack such a basis.

79 The content and style of the 5 March 2012 email, including reference to being based on "instructions" and "preliminary instructions", communicates a series of assertions and demands. None of these assertions or demands are, in my view, individually or collectively sufficient to establish or imply an act (by QUBE, through its lawyers) which is inconsistent with the maintenance of client legal privilege in relation to documents and other communications which constitute, record or evince instructions from QUBE to its lawyers. Nor do I consider the act constituted by QUBE's lawyers sending the 5 March 2012 email to be sufficient to warrant the loss of client legal privilege. This conclusion is supported by the evidence of Darren Troy Brown, the author of the relevant email.[91]

80 Putting aside the effect of s 122(3) for the moment, the conclusions above as to whether QUBE acted inconsistently with the maintenance of client legal privilege are, in part, supported by the decision in Adelaide Steamship Co Ltd v Spalvins.[92] In that case the Federal Court considered the Evidence Act 1995 (Cth) and, addressing the relevant test to determine whether there has been a disclosure of "the substance of the evidence", stated that:

the test is a quantitative one, which asks whether, there has been sufficient disclosure to warrant loss of the privilege. If what is disclosed falls short of the test posed by this section, there is no waiver.[93]

81 Adelaide Steamship Co Ltd v Spalvins[94] is of assistance in considering whether, as a matter of nature and degree, an inconsistent act can be identified. The case was considering legislation which was in very similar form to s 122(3)(a) of the current Victorian Act. However, it should be noted that s 122(2) of the Evidence Act 1995 (Cth), there under consideration, was in somewhat different terms to s 122(2) of the Victorian Act.

82 In Lactalis Jindi Pty Ltd & Anor v Jindi Cheese Pty Ltd & Ors,[95] Almond J dealt with the current Victorian Act, and summarised the essence of the test to be applied. His Honour stated that there would be a loss of client legal privilege if there had been sufficient disclosure to warrant loss of privilege.

Section 122(3)(a) of the Act - "knowingly" and "voluntarily"

83 Given WCL's case on appeal it is necessary to determine whether QUBE, by their solicitors sending the email of 5 March 2012, either "knowingly and voluntarily" disclosed the substance of the instructions, or whether the substance of the instructions has been disclosed with the express or with the implied consent of QUBE.

84 The learned Associate Judge concluded that QUBE's lawyer Mr Brown:

had no knowledge of loss of privilege nor did he have knowledge that the fact of disclosure amounts to a disclosure of an otherwise privileged communication. At best he may have been careless ... Here Mr Brown has been careless or inadvertent.[96]

85 Odgers' Uniform Evidence Law considers that the meaning of s 122(3) of the Act says that the word "voluntary" in s 122 is intended to mean something other than not "under compulsion of law".[97] However, the learned author says disclosure by mistake is unlikely to constitute a voluntary disclosure.[98]

86 In my view the learned Associate Judge was correct in concluding that the act of communicating the matters referred to in the email of 5 March 2012 which were identified as the subject of QUBE's instructions did not constitute a "knowing and voluntary" disclosure of the substance of the Evidence. This is because as the Associate Judge identified,[99] the circumstances of the communication indicated inadvertence and carelessness. The required knowledge of the relevant disclosure was absent.

87 By employing the word "knowingly" in s 122(3)(a), the legislature intended to add a pre-requisite to the operation of the section to ensure it was not triggered so as to effect a deemed disclosure simply because a client or party disclosed the substance of the evidence to another person. The section requires more than the mere physical act of the client or party disclosing the substance of the evidence to another person.

88 The likely intent of the legislature's inclusion of the word "knowingly" is to be found in the ordinary and natural sense of that word in its context in the Act, including the apparent purpose of the provisions in which it was included.

89 In the context of Part 3.10 of the Act, the ordinary and natural meaning of the adverb "knowingly" in s 122(3)(a) is to add to the sense of the verb 'disclose' the requirement that the person disclosing does so consciously and intentionally. To act knowingly ordinarily and naturally means that the actor is aware of and intends the relevant act to occur.

90 This view is supported by the legislative history of the provision. The drafting of this section was in part a response to the version of s 122 that was initially enacted in the Uniform Evidence Acts (UEAs) by the Commonwealth and New South Wales Parliaments. The Australian Law Reform Commission identified a number of problems with the provision as it initially stood, and recommended it be changed. The Victorian Parliament followed this recommendation when it enacted the Act in 2008.

91 In particular, s 122(2) is directed towards the behaviour of the person claiming privilege, and whether they have acted inconsistently with the maintenance of that privilege.

92 Section 122(3) operates to deem the undertaking of a relevantly inconsistent act. However, the operation of s 122(3)(a), unlike s 122(2) of the Act, focuses, in part, on the intention of the client or party making the alleged disclosure.

93 The Explanatory Memorandum presented to Parliament at the passage of the Bill explained that, in relation to clause 122 of the Victorian Bill:

Section 122 of the UEAs provides that client legal privilege is lost by consent or by knowing and voluntary disclosure of the substance of the evidence. However, this clause provides that evidence may be adduced where a client or party has acted in a manner inconsistent with the maintenance of the privilege.

Clause 122 is concerned with the behaviour of the holder of the privilege, as opposed to the intention of the holder of the privilege, as has been the case under section 122 of the UEAs. The intention of this clause is that the privilege should not extend beyond what is necessary, and that voluntary publication by the client should bring the privilege to an end. The addition of the inconsistency criterion for waiver also gives the court greater flexibility to consider all the circumstances of the case.[100]

94 I consider that before a knowing disclosure will be made out for the purposes of s 122(3) of the Act, it must be established, on the balance of probabilities, bearing in mind all relevant circumstances to do with the alleged disclosure, that the client or party making that disclosure has undertaken the physical act of disclosure consciously and intentionally. Unlike s 122(2), the focus in s 122(3) is on the intention of the person claiming privilege and in particular on that person's intention in relation to the alleged "disclosure". However, it is to be noted that this focus is distinct from a consideration of whether the person disclosing intended to waive client legal privilege which would otherwise be able to be asserted.

95 Because the legislature has rendered relevant whether the actor disclosed "knowingly" or not and thereby imported intent as an element of s 122(3)(a) and (b) (as explained below), evidence of the state of mind of the person making the disclosure may also be relevant and admissible. For example, where the person making the disclosure says that he or she voluntarily disclosed the substance of the evidence, however the disclosure was made as a result of the mistaken provision of a bundle of documents (in respect of which the disclosing party had earlier clearly communicated its intention to claim privilege) instead of a separate bundle of documents which were those intended to be disclosed.

96 I also observe that there is a spectrum of possible intent which may be relevant on the part of the person said to have disclosed. A client or party coming within the operation of s 122(3)(a) and (b) by "knowingly" and voluntarily disclosing the substance of certain otherwise privileged evidence may not understand that in so doing they are waiving client legal privilege which would otherwise protect those materials from production. The requisite consciousness and intention does not logically or necessarily extend to an understanding or intention by the discloser that they are waiving privilege by their action. To so construe s 122(3) of the Act would give rise to an unreasonable and unwarranted restriction on the operation of s 122(3) and would also not be consonant with the above stated purpose of the Part of the Act in which the provisions under consideration have been included.

97 In Uniform Evidence Law[101] the learned author also says, thus, it has been held that, whatever may be the precise limits of the words "knowing and voluntary":

...they do not apply in a case where everything indicates an intention to claim privilege in respect of the document and what has gone wrong is attributable to sheer inadvertence or carelessness.[102]

98 It is also necessary to consider whether the email was sent "voluntarily" as well as "knowingly." Here it is easier to determine the first requirement because it is accepted that the subject email was sent on instructions. Accordingly, in the absence of other evidence, for example of compulsion, the email was sent "voluntarily" within the meaning of s 122(3).

99 However, I am not persuaded that in the circumstances referred to above Mr Brown, or through Mr Brown his client QUBE, sent the contentious email "knowingly". I accept, as did the learned Associate Judge, that even if the email of 5 March 2012 could be said to disclose the substance of any material over which privilege is claimed (which neither I nor the Associate Judge consider to be the case), such disclosure was as a result of Mr Brown's carelessness or inadvertence. I agree with the learned Associate Judge's conclusion[103] that by sending the email of 5 March 2012 Mr Brown did not act "knowingly", within the meaning of s 122(3)(a).

100 For the reasons I have stated above in relation to the meaning and operation of s 122(3) of the Act, I am not persuaded by WCL's submission that it is irrelevant that the act of communication was careless or inadvertent because all that is necessary to trigger the operation of s 122(3)(a) of the Act is that there be an identifiable physical act of disclosure, irrespective of the actor's consciousness or intentions. On the contrary, as I have concluded above, consciousness and intention are necessary elements of the test in s 122(3)(a) of the Act, as I have endeavoured to explain it was intended to operate.

Section 122(3)(b) of the Act also requires the act to be done "knowingly and voluntarily"

101 WCL argues that on the proper construction of s 122(3) of the Act, s 122(3)(b) provides a separate basis for inferring an act of conduct inconsistent with privilege. Instead of requiring the disclosure be made "knowingly and voluntarily", s 122(3)(b) only requires that the disclosure occur with the express or implied consent of the client or party. WCL submits that "express or implied consent" does not need to also be given "knowingly and voluntarily."

102 The scheme of s 122(3)(b) provides for the situation where it is not the client or party who discloses, but some other person. In such a case, that other person will act in a way deemed to constitute an act inconsistent with the claimed privilege of the client or party if the other person effects the disclosure with the express or implied consent of the client or party.

103 I note at this point that the operation of s 122(3)(a) and s 122(4) of the Act are expressly intertwined. Section 122(4) of the Act provides that there will not be knowing and voluntary disclosure under s122(3)(a), if the person making the disclosure as an employee or agent of the client or party, or as a lawyer of the client or party, is not authorised by the client, party or lawyer to make the disclosure.

104 Section 122(3)(a) of the Act has the effect of deeming that a client or party has acted inconsistently if they "knowingly and voluntarily" disclose to another person. Section 122(3)(b) of the Act extends the operation of the deeming provision to a situation when a third party discloses the material with the express or implicit consent of the client or party.

105 I consider that both s 122(3)(a) and (b) and s 122(4) (which qualifies the operation of s 122(3)(a)) require that the client or party both knowingly and voluntarily disclose, and provide for such disclosure either themselves, or through the act of an employee or agent or their lawyer, by means of consenting to or authorising the relevant disclosure.

106 In the overall scheme of s 122 of the Act it would be illogical and inconsistent with the express requirement of s 122(3)(a) and s 122(4), that the disclosure be effected "knowingly and voluntarily", if those same requirements were not also necessary to enliven the operation of s 122(3)(b). If this was not the case s 122(3)(b) would effect a disclosure, resulting in the loss of the client or party's client legal privilege, in circumstances where the client or party cannot be said to have knowingly and voluntarily consented to the disclosure sought to be relied on to defeat the privilege.

107 This would lead to a situation where if the person disclosed the privileged materials, but did not do so "knowingly", then privilege would not be waived, but if that person gave permission to someone else to disclose the information in exactly the same way, but did not do so "knowingly", privilege would be waived. This is clearly a nonsensical approach and creates inconsistency of operation as between ss 122(3)(a), 122(4) and 122(3)(b).

108 It also appears that the learned author of the text Uniform Evidence Act recognises the need to establish the requirements "knowingly and voluntarily" to enliven the operation of s 122(3)(b), by concluding that sections 122(3)(a) and (b) "plainly operate in tandem".[104]

109 Given the purpose and the scheme of s 122 there does not appear to be any sensible reason to interpret s 122(3)(a) and (b) as imposing different requirements in relation to disclosure by the client or party, and the disclosure by another person with the consent of the client or party. To otherwise interpret s 122(3) would be to give that section an internally inconsistent interpretation and one that is manifestly not sensible for the reasons I refer to in the paragraphs above.

110 For the above reasons I accept QUBE's submission that s 122(3)(a) and (b) "operate in tandem" and that for s 122(3)(b) to be engaged the consent for the disclosure must also be "knowingly and voluntarily" granted in order for there to be effective consent.[105]

111 Furthermore, I consider that the word "consent" employed in s 122(3)(b) of the Act also imports a level of knowingness. It is unlikely that the legislature intended that s 122(3)(b) was to operate absent an informed consent of the client or party. If the client or party does not know what it has consented to the resultant "consent" is not true consent.

112 Accordingly, it is also likely that the legislature intended that for s 122(3)(b) to operate more would be needed than mere consent to the physical act of disclosure. The required consent is likely to here involve knowing consent to the relevant information being provided to the other person. Such a construction is also consistent with and supports the likelihood that the Act requires establishment of "knowing" disclosure under s 122(3)(b) as earlier explained.

113 Finally, the above construction is to be preferred in relation to s 122(3) because it allows the Court to apply these provisions of the Act with a degree of flexibility.

114 In the decision of Almond J in Lactalis Jindi Pty Ltd & Anor v Jindi Cheese Pty Ltd & Ors[106] his Honour considered the operation of ss 122(3)(a) and (b). I respectfully agree with his Honour that s 122(3) is prescriptive.[107] However, in that matter his Honour concluded that the facts there established knowing[108] and voluntary[109] disclosure. Therefore, it was not necessary for his Honour to further consider in what circumstances s 122(3)(b) might operate, and whether or not that subsection is operative absent a knowing and voluntary disclosure.

115 Finally, I am not persuaded, as asserted by WCL, that the learned Associate Judge in effect held that it was a necessary condition for an implied waiver of privilege under s 122(3)(a) of the Act that a party waiving privilege intends to do so. In the decision under appeal, the learned Associate Judge made findings based on identifying carelessness or inadvertence and concluded that in the circumstances of this matter there was no "knowing and voluntary" disclosure.[110] This does not amount to a conclusion that an intention to waive privilege is necessary to found waiver.

Section 122(3) of the Act - requirement as to the "Substance of the Evidence"

116 WCL relied on Bennett v Chief Executive Officer of the Australian Customs Service[111] and Priceline Pty Ltd v JHY Nominees and Ors Pty Ltd[112] to argue what should constitute disclosure of the substance of the evidence.

117 QUBE referred[113] to the case of Adelaide Steamship Co Ltd v Spalvins[114] as identifying the relevant test as a "quantitative" one in relation to whether there has been sufficient disclosure to warrant the loss of privilege.

118 In Adelaide Steamship Co Ltd v Spalvins[115] the Full Court of the Federal Court considered s 122(2) and (4) of the Evidence Act 1995 (Cth) (which were then equivalent to s 122(3)(a) and (b) of the Act) and said the following:

Secondly, subject to the particular exceptions listed in, s 122(2) and (4) inquire whether there has been a knowing and voluntary, or a consensual, disclosure of the "substance of the evidence", that evidence containing the confidential communication or the contents of the confidential document of which ss 118 and 119 speak. The test is a quantitative one, which asks whether there has been sufficient disclosure to warrant loss of the privilege. If what is disclosed falls short of the test posed by the section, there is no waiver. Importantly the subsections are not concerned with any principle of "fairness" such as that developed by the common law and by which waiver may be imputed.[116]

119 In Lactalis Jindi Pty Ltd & Anor v Jindi Cheese Pty Ltd & Ors[117], Almond J noted that while the High Court overruled aspects of Adelaide Steamship Co Ltd v Spalvins[118] in the decisions of Esso Australia Resources Ltd v Federal Commissioner of Taxation[119] and Mann v Carnell[120], the "quantitative" test was not overruled. Almond J accepted that the appropriate test is whether there has been sufficient disclosure, which is a quantitative test, to warrant "loss of privilege".[121]

120 In Bennett v Chief Executive Officer of the Australian Customs Service[122] the Full Court of the Federal Court was called upon to consider whether correspondence from the Australian Customs Service which referred to advice received from its solicitor, constituted waiver of client legal privilege. The case was not concerned with construing provisions of the Evidence Act 1995 (Cth) but rather parts of the Freedom of Information Act 1982 (Cth) that exempted documents from disclosure if they were privileged. The Court applied the common law to determine whether privilege had been waived, relying on the High Court case of Mann v Carnell.[123] As cited and relied upon by WCL, in Bennett v Chief Executive Officer of the Australian Customs Service[124], Tamberlin J observed:

Various expressions are used in the formulation of principles relating to waiver of legal professional privilege, such as references to "the substance", "effect", or "content" of the advice. The weight of the authorities, in my view, supports the conclusion that the disclosure of the conclusions reached in or course of action recommended by, an advice can amount to waiver of privilege in respect of the premises relating to the opinion which has been disclosed, notwithstanding that the reasoning is not disclosed.[125]

121 In Secretary, Department of Justice v Osland[126] Maxwell P of the Victorian Court of Appeal said the following in the context of its consideration as to whether the disclosure of a conclusion in legal advice was effective to waive privilege under common law in relation to the whole of the advice:

Disclosure of the conclusion (or the gist, substance or effect) of legal advice may, or may not, amount to a waiver of privilege in respect of the advice as a whole. Whether it does in a particular case will depend on whether, in the circumstances of the case, the requisite inconsistency exists, between the disclosure on the one hand and the maintenance of confidentiality on the other. In Bennett, the majority of the Full Federal Court judged that there was inconsistency and hence waiver; in British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197; (2002) 7 VR 524 (discussed below), this court judged that there was not. In each case, there was a disclosure of the gist or substance of advice given. That opposite conclusions were arrived at is simply a reflection of the different circumstances of the respective cases.[127]

122 In Osland v Secretary, Department of Justice[128] the High Court expressly adopted the reasoning of Maxwell P and observed:

Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd, questions of waiver are matters of fact and degree. It should be added that we are here concerned with the common law principle of waiver, not with the application of s 122 of the Evidence Act 1995 (Cth) which, as was said in Mann v Carnell, has the effect that privilege may be lost in circumstances which are not identical to the circumstances in which privilege may be lost at common law.[129]

123 In Priceline Pty Ltd v JHY Nominees & Ors Pty Ltd[130] the communication in issue was a letter in which an estate agent had said:

We have discussed the matter with the Lessor and sought advice from their solicitors. Putting the argument with respect to the notice regarding the response to the rent review to one side for the moment, the option was exercised out of time, and the Lease cannot be renewed in any event.

124 The Judge at first instance had held that the above extract did not make a relevant disclosure because a conclusion with respect to the legal advice was never stated and therefore, on a fair reading the letter did not disclose the substance of the legal advice within the meaning of s 122(3) of the Act.[131]

125 WCL, however, seeks comfort from the decision of the Court of Appeal in Priceline Pty Ltd v JHY Nominees and Ors Pty Ltd.[132] On appeal in that matter Mandie JA concluded that it was strongly arguable that the above passage, on a fair reading, did disclose the substance of the legal advice given to the lessor.[133] WCL argues that it is implicit in the observations of Mandie JA as to the basis upon which there had been a likely waiver, that the party waiving privilege is not required to have any appreciation of the character or consequence of making the disclosure. I do not however accept that this conclusion can necessarily be read into his Honour's reasons and also note that his Honour's observations on this topic did not form part of the reasoning which founded his Honour's decision to refuse the subject application for leave to appeal..

126 In the instant appeal, as I have detailed above, including at [75], [77], [80] to [82] and below at [127],[ 129] and [130]of these reasons, I reject the argument that on a fair reading of the email of 5 March 2012, it discloses "the substance" of any legal advice or the substance of any privileged instructions.

Nature of the Communication of 5 March 2012 - not inconsistent with maintenance of privilege

127 I also consider that on a fair and objective reading, in all the circumstances, the email of 5 March 2012 is not inconsistent with maintaining client legal privilege. It was written in the context of disputes between the parties which had escalated to the point where steps were taken by WCL to terminate the haulage agreement. QUBE's conduct, by its lawyers, in asserting certain matters on instructions does not in my view result in the waiver of privilege over the communications constituting those instructions. This is because on a fair and objective reading, the email does not exhibit or constitute any inconsistency with maintaining privilege as a result of QUBE's lawyers asserting the matters recorded as instructed by their client QUBE.

128 In this regard I agree with Associate Justice Efthim's Reasons[134] where his Honour found that there is no relevant inconsistency by reason of Kliger Partners' reference to "preliminary instructions" as part of the basis for their assertions and the demands made in their email of 5 March 2012 on behalf of QUBE.

129 Furthermore, the "instructions" referred to in the email of 5 March 2012 relate principally to factual "instructions" provided by QUBE, as Kliger Partners' client. They do not reflect "the substance" of legal advice provided by Kliger Partners to QUBE. Put another way, if the words "instructed" and "preliminary instructions" were to be excised from the email, the communication would in effect remain the same. In the email, Kliger Partners were communicating on behalf of their client a number of instructed factual matters and in addition Kliger Partners' views as to the legal consequences of the instructed facts in the context of the dispute.

130 As already touched on above, I also consider that, in distinction to the situation in Bennett where reference was made to the substance of the legal advice, earlier given, on a fair reading of the email of 5 March 2012, rather than making reference to any legal advice provided by Kliger Partners to their client, Kliger Partners referred to their instructions from QUBE and in parts of the email put forward their own views as to the legal ramifications of the instructed facts. One example of this is explaining that on their understanding of the facts "... a legally binding contract" existed even though no signed agreement had been executed by the parties. Other similar legal views held by Kliger Partners are evident on reading the contentious email.

131 I also observe that most, if not all, letters of demand are necessarily expressly or impliedly, communicating what the lawyer acting for that party has been instructed. It is such instructions that provide the basis for the demand. Professional conduct and other requirements necessitate such letters being based on a client's instructions.

132 If a solicitor advising a client could not assert the sort of matters asserted in the subject email for the fear of waiving privilege and its client being exposed to disclosure of the otherwise privileged communications, there would be an unjustified restriction imposed on the legal representative's ability to communicate his or her client's position and demands.

133 QUBE also submits that under the statutory test there must be some underlying factor of a person maintaining privilege in circumstances which give their conduct the required character of being "inconsistent" with the maintenance of the privilege.[135] I also accept this related submission. In order for privilege to be waived, the party has to do more than just physically provide the information or refer to the information - it has to be an act inconsistent with maintaining privilege. The QUBE submissions correctly recognise that s 122(2) is the key provision of the Act in this regard, requiring the establishment of conduct inconsistent with the maintenance of the relevant privilege. This is not to ignore the provisions of s 122(3) which I recognise are in effect deeming provisions and form a subset of defined conduct which, if satisfied, will establish relevant inconsistency.

134 In my view nothing turns on WCL being able to identify some factual inconsistencies between what was asserted on behalf of QUBE in the email dated 5 March 2012 and the later more detailed allegations in the QUBE FASOC subsequently filed and served in this proceeding.

135 I am not satisfied that there is any cogent basis to conclude that the discrepancies in the pleading, including a discrepancy between the QUBE pleadings and the email of 5 March 2012 as to the "instructed" commencement date of the alleged three year agreement in August 2011, are acts of relevant inconsistency resulting in a waiver of privilege by QUBE under s 122(2) of the Act.

136 In my view, the divergences to which WCL refers between QUBE's pleadings and the 5 March 2012 email do not give rise to any relevant inconsistency. Any discrepancy between what QUBE asserted in the email of 5 March 2012 and the facts and legal consequences alleged in its subsequent pleadings does not render sending the earlier email an act inconsistent with QUBE maintaining client legal privilege.

137 Whether or not a relevant act of inconsistent behaviour has occurred is to be evaluated at the time of the act said to be inconsistent with the maintenance of privilege. Further, the relevant act is to be considered in the circumstances and the context of that act of disclosure.

138 Here the acts relied on are QUBE, by its lawyers, communicating as they did by their email of 5 March 2012 and the issue of the FASOC. The subsequent pleading filed by QUBE, which may be divergent from earlier statements made in the "letter of demand" on 5 March 2012 does not affect the nature of the act of disclosure arguably constituted by sending that email. The determinations as to whether sending the email of 5 March 2012 and/or filing and serving the FASOC effected a waiver will be considered on their own terms and in the circumstances, in particular the content of the email and pleading and the circumstances of disclosure. The issue and filing of a subsequent pleading alleging divergent matters will not, per se, constitute relevant inconsistency for the purposes of waiver of privilege under s 122 of the Act because by instructing such allegations to be advanced in the FASOC the plaintiff is not acting inconsistently with the maintenance of privilege in relation to the communication of those instructions to its lawyers.

139 Further, it is perfectly understandable that subsequent to the "letter of demand" and the receipt of more complete instructions, and perhaps further legal advice, some facts and legal consequences alleged in the subsequent pleadings might differ from what was said in the earlier "letter of demand". If such a circumstance gave rise to a loss of client legal privilege that would be an extraordinary, undesirable and illogical outcome.

140 I do not accept WCL's submissions that as a result of the email of 5 March 2012 there has been a "deployment" of "legal advice" or "instructions" from QUBE for forensic or commercial purposes and advantage. I note that it is the reference to matters instructed and the "instructions" and "preliminary instructions" referred to in the disputed email which WCL argues give rise to the relevant inconsistency.

141 In my view there is a material and significant difference between the instant case and cases like Bennett v Chief Executive Officer of the Australian Customs Service.[136]

142 In Bennett the Court considered the potential inconsistency with maintaining privilege which arises when "legal advice" is "deployed" for forensic and commercial advantage. In that case, as mentioned above, legal advice was put forward in a letter written by the Australian Government Solicitor to the solicitor for Mr Peter Bennett concerning proceedings between Mr Bennett and officers of the Australian Customs Service. The letter relied on the substance and effect of legal advice in order to emphasise and promote the content and strength of the case against Mr Bennett.

143 By contrast, in the instant case, the email of 5 March 2012 asserted that it was based on instructions from the client, and was coupled with assertions as to the legal consequences of those instructions. No legal advice earlier rendered to the client QUBE was referred to or deployed for advantage, but rather the email communicated that Kliger Partners were acting on instructions, and that Kliger Partners considered that certain legal consequences would follow on the basis of their instructions.

144 It is a question of fact and degree as to whether there is an identifiable inconsistent act, and whether the substance of the evidence which is otherwise privileged has been disclosed. In this matter, for the reasons I have identified above, I do not consider that QUBE, through its lawyers acted inconsistently with the privilege that it seeks to maintain.

145 I am also unpersuaded that there is any likelihood of unfairness were the subject email to be relied upon by QUBE in circumstances where the underlying communications between QUBE and Kliger Partners constituting the "instructions" and "preliminary instructions" referred to were not made available to WCL. This is because, in my view, each of the matters said to be the subject of "instructions" or "preliminary instructions", are in reality simply assertions as to some of the facts and circumstances that QUBE had instructed its lawyers to put forward to WCL, together with QUBE's lawyers' views as to the legal position in which the parties found themselves.

146 Additionally, there is not likely to be any unfairness to WCL because the instructed matters, and Kliger Partners' assertions as to legal consequences thereof, are put forward in a context where the parties are already in dispute about those issues. Those issues included the arrangements pursuant to which QUBE was to provide dedicated rail haul services, what steps and commitments QUBE had undertaken and made in pursuance of the alleged agreement, whether WCL was entitled to terminate that agreement, and the matter of payment.

147 I do not regard QUBE as having acted inconsistently within the meaning of s 122(2) on the basis that its pleadings put its state of mind in issue. I do not accept WCL's submission that the inconsistencies between the representations alleged in the FASOC and what is said in the email of 5 March 2012 give rise to any relevant inconsistency for the purposes of s 122(2) of the Act.

148 Even accepting that ultimately such inconsistencies as referred to may assist WCL in its case against QUBE, I do not consider that any such possible evidentiary inconsistencies constitute a relevant inconsistency within the meaning of s 122(2) of the Act.

149 This is because the Act requires that the inconsistency relied upon, here the reference to "instructions" and "preliminary instructions" in the 5 March 2012 email, is contradictory to the party maintaining the privilege which would otherwise be available to protect against production. The inconsistency here relied on is to be found, if it be inconsistent, in the subsequent pleading filed and served by QUBE.

150 However, a later pleading does not retrospectively convert the earlier statements in the 5 March 2012 email into communications which are inconsistent with the maintenance of privilege in relation to the instructions referred to in that email.

151 Although putting forward a later inconsistent pleading, which also puts the plaintiff's state of mind in issue, may well render the divergent statement in the earlier email relevant to testing the plaintiff's state of mind at certain times, the filing of such a pleading will not itself render the earlier act of disclosure inconsistent.

152 This appeal and the underlying application have been very extensively argued including by way of seven sets of written submissions, oral argument and reliance on lever arched volumes of what are said to be relevant cases.

153 The High Court has very recently exhorted parties and practitioners to eschew such time-consuming and expensive adversarial processes for the resolution of what are, in the scheme of superior court commercial litigation, relatively minor issues which could be dealt with by the parties, and the Court, in a more time and cost efficient way.

154 In Expense Reduction Analysts Group Pty Ltd & Ors v Armstrong Strategic Management & Marketing Pty Ltd & Ors[137] ('Expense Reduction Analysts') the High Court considered an appeal from the Court of Appeal in New South Wales which had dealt with a decision concerning the provision of discovery by the appellants. The solicitors had claimed that a number of documents had been inadvertently disclosed, contrary to their client's instructions, and should be immediately returned by the respondent. The respondent disputed that the privileged documents had been disclosed inadvertently and asserted an entitlement to retain the disputed documents arguing that any privilege attaching to them had been waived.

155 The Supreme Court of New South Wales addressed these issues on a motion by the appellant for injunctive and other relief in relation to the disputed documents. Some of the 13 documents remaining in dispute were found by the Court to have been disclosed inadvertently and the Court at first instance ordered that the electronic discovery earlier made be returned by the respondent's solicitors and, after removal of the nine privileged documents disclosed inadvertently, ordered that the appellant's solicitors should again provide electronic discovery of the balance of the documents earlier discovered.

156 The New South Wales Court of Appeal allowed the respondent's appeal on the basis that the mistakes made in disclosure of the documents in the discovery process would not have been obvious to a reasonable solicitor.

157 The approach of the Court of Appeal was to focus on the relief sought by the respondent, namely by way of injunction and the basis for the court to order such relief.

158 In Expense Reduction Analysts[138], the High Court in allowing the appeal summarised parts of the Court of Appeal's reasoning and made statements both in relation to waiver of client legal privilege, the operation of s 122 of the Evidence Act 1995 (NSW) and in relation to how the courts below might have more efficiently dealt with the matter in issue. The High Court's statements relevant to the disposition of this appeal are as follows, commencing at [25]:

The question which Campbell JA considered to arise in the present case, in relation to whether injunctions could have been granted, was whether the circumstances in which the privileged documents were communicated to or obtained by the Armstrong parties were such as to impose an obligation of conscience upon them Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2012) 295 ALR 348 at 386-387 [165]- [167]. The test applied by his Honour to determine that question was whether "a reasonable solicitor in the position of Ms Marshall should have realised that the documents had been disclosed by mistake." Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2012) 295 ALR 348 at 387 [166]. That test, his Honour observed, had been applied in Guinness Peat Properties Ltd v Fitzroy Robinson Partnership and other cases. It seemed appropriate to permit the exception of an obvious mistake from the general rule that discovery may be relied upon.

Campbell JA concluded that the test was not satisfied and no obligation of confidence could be brought home to the Armstrong parties concerning the documents. The injunctions should have been refused Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2012) 295 ALR 348 at 389 [172]. In his Honour's view, the manner of discovery would have conveyed that it had been conducted with some care and the Lists of Documents were accompanied by the requisite affidavits and solicitor's certificate. His Honour observed that the documents on their face contained some legal advice relating to matters in issue and discussions between various of the defendants concerning that advice. However, he considered that little weight could be placed upon Ms Marshall's failure to realise there had been any mistaken discovery, since she only read the documents in question after Norton Rose filed the notice of motion Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2012) 295 ALR 348 at 388-389 [171(i)].

His Honour also found that privilege in the documents had, in any event, been waived. His Honour's reasons for this conclusion were that: Norton Rose's sending of the documents was an intentional act carried out with knowledge that privileged documents may be withheld from production; that act was done in the context of a court-ordered discovery process, where the parties' Lists of Documents were verified and certified; there was a lapse of time between the disclosure of the documents and the claim of mistake; and the mistake was not obvious. In all these circumstances, his Honour thought it would be inconsistent for the ERA parties to contend that the documents were privileged Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2012) 295 ALR 348 at 390-391 [179]- [180].

...

In relation to the final factor identified by his Honour as relevant to waiver, his Honour conceded that if it had been obvious that the documents had been disclosed by mistake, it may well be harder, in an individual case, to show inconsistency of conduct between handing over the documents and later claiming privilege Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2012) 295 ALR 348 at 391 [179(f)].

According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege) Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64; (1920) 28 CLR 305 at 326; [1920] HCA 64; Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641 at 658; [1937] HCA 58. It may be express or implied. In most cases concerning waiver, the area of dispute is whether it is to be implied. In some cases waiver will be imputed by the law Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 95-96; [1995] HCA 39. with the consequence that a privilege is lost, even though that consequence was not intended by the party losing the privilege. The courts will impute an intention where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at 13 [29]; [1999] HCA 66.

In Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64; (1920) 28 CLR 305 at 326, it was explained that "'[w]aiver' is a doctrine of some arbitrariness introduced by the law to prevent a man in certain circumstances from taking up two inconsistent positions ... It is a conclusion of law when the necessary facts are established. It looks, however, chiefly to the conduct and position of the person who is said to have waived, in order to see whether he has 'approbated' so as to prevent him from 'reprobating'". In Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at 13 [29], it was said that it is considerations of fairness which inform the court's view about an inconsistency which may be seen between the conduct of a party and the maintenance of confidentiality, though "not some overriding principle of fairness operating at large."

Those considerations, articulated in relation to waiver at common law, apply with equal force in relation to the statutory question posed by s 122(2) of the Evidence Act, and made applicable by s 131A of that Act to the determination of a question of waiver of client legal privilege arising in the context of pre-trial discovery. That question is whether the client or party concerned "has acted in a way that is inconsistent with the client or party objecting to" the production of a document.

The primary judge's findings point to an inconsistency in the Lists of Documents, but not one which clearly suggests abandonment of the privilege. The fact that the nine documents the subject of her Honour's order were listed in both the privileged and non-privileged sections of the Lists of Documents was apt to create confusion about the position taken by the ERA parties and is strongly indicative of mistake in what was otherwise a careful process of discovery. Ms Marshall's letter of 25 November 2011 to Norton Rose confirms that it was unclear to her what the Lists of Documents conveyed with respect to privilege.

Whatever doubts Marque Lawyers had about the claims for privilege were dispelled by the letter from Norton Rose of 6 December 2011 advising that some privileged documents had been incorrectly listed as non-privileged. This action by Norton Rose was not identified in the reasons of Campbell JA as relevant, yet it was important to convey the true position of the ERA parties. The letter was sent promptly once Norton Rose became aware that mistakes had been made. It was given before Ms Marshall had fully inspected the documents. The disks containing the documents remained with Mr Armstrong, although they should have been retrieved upon notification of the mistake. It is not evident that he came across the 13 documents in question himself.

These circumstances are not indicative of an inconsistent position being taken by the ERA parties' lawyers such that waiver should be imputed to those parties. The issue of waiver should never have been raised.

...

In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at 211 [92]- [93], 213 [98]; [2009] HCA 27, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice.

...

In addition to the general powers it gives to courts, the CPA also provides some more specific powers. The relevant power here is to be found in s 64 of the CPA, entitled "Amendment of documents generally", which appears in Div 3 of Pt 6 ("Other powers of court"). Section 64(1)(a) empowers the court, at any stage in the proceedings, to order that any document in the proceedings be amended. Section 64(2) then provides that, subject to s 58 (the dictates of justice) It is to be observed that O 20 r 8 of the Rules of the Supreme Court 1965 (UK), which was referred to in Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027; [1987] 2 All ER 716, conferred similar powers, although they were not linked to express case management powers and duties:

"all necessary amendments are to be made for the purpose of determining the real questions ... correcting any defect or error in the proceedings and avoiding multiplicity of proceedings."

The direction which the Supreme Court should promptly have made in this case was to permit Norton Rose to amend the Lists of Documents, together with consequential orders for the return of the disks to enable the privileged documents to be deleted. Such a direction and orders would have obviated the need to resort to the more complex questions concerning the grant of relief in the equitable jurisdiction. It would have served to defuse the dispute and dissuaded the Armstrong parties from alleging waiver. It accords with the overriding purpose and the dictates of justice.

It could hardly be suggested that the pursuit of satellite interlocutory proceedings of the kind here in question in any way fulfils the overriding purpose of the CPA. To the contrary, it is the very kind of conduct which should be avoided if those purposes are to be achieved. It involved a relatively minor issue relating to discovery, the resolution of which appears to have offered little advantage to the Armstrong parties. Its determination went no way towards the resolution of the real issues in dispute between the parties. Instead, it has distracted them from taking steps to a final hearing, encouraged the outlay of considerable expense and squandered the resources of the Court.[139]

159 I highlight in particular the High Court's statements in Expense Reduction Analysts[140] in relation to the undesirable cost, delay and utilization of court resources that the pursuit of extended and expensive satellite interlocutory proceedings generated in that matter. Further, I observe that, in the instant appeal seeking the production of documents in the nature of instructions arguably referred to in what I have concluded is a communication properly characterised as a typical "letter of demand", it is regrettable that this appeal, and the earlier application and arguments before the Associate Judge, have resulted in what I consider to have been an interlocutory battle of disproportionate magnitude to the production issue in question.

160 The learned Associate Judge was not in error in finding that there was no waiver of privilege by QUBE in relation to the documents constituting, recording or evincing the instructions from QUBE referred to in the Kliger Partners email dated 5 March 2012.

162 I shall, if necessary, hear any submissions in relation to the costs of this appeal, as soon as is convenient.

[1] [2003] HCA 22; (2003) 214 CLR 118, [22] - [23].

[2] Supreme Court Rules, r 77.06.9(3).

[3] Submissions of QUBE (dated 19 August 2013) [5], [6]; Submissions of Qube (dated 22 August 2013), [1]-[4].

[4] Exhibit AJG-7 of Affidavit Andrew John Green (sworn 20 February 2013).

[5] Exhibit AJG-9 of Affidavit Andrew John Green (sworn 28 March 2013).

[6] POTA is the former name of the plaintiff.

[7] Exhibit AJG-7 of Affidavit Andrew John Green (sworn 20 February 2013).

[8] Further Amended Statement of Claim dated 22 February 2013 ('FASOC')

[22] Ibid [15]. See also Sharjade Pty Ltd v RAAF Landings [2008] NSWSC 151, [21].

[23] Submissions of WCL (19 August 2013), [13].

[26] Exhibit AJG 9 of Affidavit Andrew John Green (sworn 28 March 2013).

[27] Ibid. Also see Submissions of WCL (dated 19 August 2013) [14].

[28] Exhibit AJG 7 of Affidavit Andrew John Green (sworn 20 February 2013).

[29] Submissions of WCL (dated 19 August 2013) [[3](c)].

[30] Submissions of QUBE (dated 22 August 2013).

[31] Exhibit AJG 9 of Affidavit Andrew John Green (sworn 28 March 2013).

[32] Submissions of WCL (dated 19 August 2013) [14]-[15].

[36] Submissions of WCL (dated 19 August 2013) [50]-[55].

[38] Submissions of WCL (dated 19 August 2013) [15].

[40] Submissions of WCL (dated 22 August 2013) [18]-[19].

[41] Submissions of WCL (dated 19 August 2013) [19].

[43] Submissions of WCL (dated 19 August 2013) [20], [25] and [26].

[44] Submissions of WCL (dated 22 August 2013), [2].

[45] [2011] NSWSC 353.

[46] Submissions of WCL (dated 22 August 2013), [15]-[17].

[48] Submissions of WCL (dated 19 August 2013), [34].

[49] Reasons, [22]. Submissions of WCL (dated 19 August 2013), [35].

[50] Submissions of WCL (dated 19 August 2013), [36].

[53] Submissions of WCL (dated 19 August 2013), [37].

[54] Submissions of WCL (dated 19 August 2013), [39].

[55] Submissions of WCL (dated 19 August 2013), [40].

[56] Submissions of WCL (dated 19 August 2013), [41].

[57] Exhibit AJG 7 of Affidavit Andrew John Green (sworn 20 February 2013).

[58] [2004] FCAFC 237; [2004] 140 FCR 101, [65] and [68].

[59] Submissions of WCL (dated 19 August 2013), [42]-[44].

[60] [2004] FCAFC 237; [2004] 140 FCR 101 [68]. This case was referred to in Submissions of WCL (dated 19 August 2013), [46].

[61] [2010] VSC 61.

[62] Submissions of WCL (dated 19 August 2013), [46]-[49].

[63] Submissions of QUBE (dated 19 August 2013) [4], [5] and [6]; Submissions of QUBE (dated 22 August 2013) [1]-[4].

[74] Submissions of QUBE (dated 19 August 2013) [9].

[75] [1999] NSWSC 694, [9] (Giles J) and also Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No 2) [1998] 83 FCR 397, 401-402.

[76] Submissions of QUBE (dated 19 August 2013) [10], [11].

[78] Affidavit of Darren Troy Brown (sworn 2 April 2013).

[85] [2008] HCA 37; [2008] 234 CLR 275, [13].

[87] [1999] HCA 66; (1999) 201 CLR 1, [28]-[32].

[88] [2002] HCA 49; (2002) 213 CLR 543, [11], [43], [88], [132].

[89] Submissions of QUBE (dated 19 August 2013) [26].

[91] Affidavit of Darren Troy Brown ( sworn 2 April 2013).

[92] [1998] FCA 144; (1998) 81 FCR 360, 371.

[95] [2013] VSC 475, [40].

[97] Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 10th ed, 2012) [1.3.11080]. Odgers refers to Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12.

[100] Explanatory Memorandum, Evidence Bill 2008 (Vic), 46.

[101] Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 10th ed, 2012) [1.3.11080].

[102] Sovereign v Bevillesta [2000] NSWSC 521, [23]; Boensch v Pascoe [2007] FCA 532, [38]; Dunstan v Orr [2008] FCA 31, [145].

[104] Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 10th ed, 2012) [1.3.11100].

[105] Submissions of QUBE (dated 22 August 2013) [10].

[106] [2013] VSC 475, [30], [31] and [35].

[107] Ibid. Almond J emphasised this point at [30].

[111] [2004] FCAFC 237; (2004) 140 FCR 101, [65]-[68].

[112] [2010] VSCA 129, [33].

[113] Submissions of QUBE (dated 19 August 2013) [18].

[114] [1998] FCA 144; (1998) 81 FCR 360, [371].

[117] [2013] VSC 475, [40].

[118] [1998] FCA 144; (1998) 81 FCR 360.

[119] [1999] HCA 67; (1999) 201 CLR 49, 59-63.

[120] [1999] HCA 66; (1999) 201 CLR 1.

[121] [2013] VSC 475, [40].

[122] [2004] FCAFC 237; (2004) 140 FCR 101.

[123] [1999] HCA 66; (1999) 201 CLR 1.

[124] [2004] FCAFC 237; (2004) 140 FCR 101.

[126] [2007] VSCA 96; (2007) 26 VAR 425.

[128] [2008] HCA 37; (2008) 234 CLR 275,

[129] Ibid 298-299 [49] (Gleeson CJ, Gummow, Heydon and Kiefel JJ), 312-313 [97] - [98] (Kirby J), 321 [131] (Hayne J) (citations omitted).

[130] [2010] VSC 61.

[132] (2010) 27 VR 513.

[135] Submissions of QUBE (dated 2 April 2013) [7].

[136] [2004] FCAFC 237; (2004) 140 FCR 101.

[137] [2013] HCA 46; (2013) 303 ALR 199.

[139] Ibid [25]-[27], [29]-[35], [51], [58]-[59].