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[2021] VSC 6
Supreme Court of Victoria
2021-01-20
Daly, AsJ
Original judgment source is linked above.
PRACTICE AND PRODECURE - Legal professional privilege - Whether communications made for the dominant purpose of providing legal advice or for the provision of professional legal services for the purpose of legal proceedings or anticipated legal proceedings - Where recipient of subpoena is not the privilege holder - Whether communications with third parties attract legal professional privilege - Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 referred to and applied - The Oswal Matters - Pre Trial Discovery and Privilege Applications [2016] VSC 386 referred to - Evidence Act 2008 (Vic) s 131 - Whether communications made in connection with an attempt to negotiate settlement of a dispute.
Mr A Monichino QC with Ms K O'Gorman and Ms F Hudgson
1 The plaintiff, Alphington Developments Pty Ltd ('Glenvill') is a special purpose vehicle incorporated by Glenvill Pty Ltd, which has formed a joint venture with Alpha APM No 2 Pty Ltd ('Alpha Partners') to develop the former Amcor paper mill site in Alphington ('site') into a mixed use residential and commercial development. Glenvill purchased the site from the defendant, Amcor Ltd ('Amcor') pursuant to a contract of sale dated 28 June 2013 ('contract of sale").
2 While the parties are in dispute regarding their obligations under the contract of sale, it is not necessary to canvass those disputes in any detail for the purpose of determining the current application, in which Amcor seeks to inspect documents produced upon subpoena by architects and town planners engaged by Glenvill to assist with the development of the site ('consultants'). It is sufficient for present purposes to say that Glenvill asserts that Amcor is liable to fund the works necessary to remove and remediate environmental contamination not known to Glenvill at the time that it entered into the contract of sale, which, as at 1 October 2020, were said to have cost Glenvill (net of amounts already paid by Amcor) $28,175,386.71 exclusive of GST. Amcor denies any obligation to reimburse Glenvill for the costs of the works carried out by it, on the basis that the works fall out of the scope of works contemplated by the contract of sale, and/or the costs incurred by Glenvill were not reasonably incurred. Further, Amcor has issued a counterclaim against Glenvill for interest said to be payable by Glenvill on the part of the purchase price by reason of Glenvill's delays in procuring the registration of a plan of subdivision for the site, and declarations that Amcor is not required to indemnify Glenvill for particular types of works on the site.
3 The proceeding was issued on 16 June 2017, after more than two years of discussions and negotiations between the parties regarding the nature and extent of previously unidentified asbestos contamination and other contamination at the site. The discovery of asbestos contamination at the site in March 2015 followed a period where Glenvill had engaged, among others, the consultants, to develop a master plan for the site, and to work towards obtaining the necessary planning and other approvals for the development of the site to proceed. That process was complicated when, sometime in 2014, Glenvill became aware that VicRoads proposed to acquire part of the site for the expansion of the Chandler Highway between Kew and Alphington, either by negotiation with Glenvill, or by way of a compulsory acquisition.
4 Since the issue of this proceeding, there have been various case management issues to be dealt with along the way. Given that works on the site progressed along with the interlocutory steps in the proceeding, there have been numerous iterations of the pleadings, and, to some extent, a reduction in the scope of the disputes between the parties. Given the nature of the issues in dispute, a substantial number of lay witness statements and expert reports have been filed and served by both parties.
5 During the course of 2018, the parties were in dispute regarding the production and inspection of documents produced upon subpoena by Golder & Associates, a principal of which, Mr Ian Kluckow, was an expert engaged by Amcor in July 2015 to work on-site with Glenvill's employees and contractors regarding the contamination and remediation issues. Mr Kluckow is also expected to give expert evidence at the trial of the proceedings. Given the different roles assumed by Mr Kluckow over the course of 2015, 2016 and 2017, Glenvill challenged claims made by Amcor for legal professional privilege over a number of the Golder documents, on the basis that the Golder documents were brought into existence for a range of purposes, such that it could not be said that they were brought into existence for the dominant purpose of Amcor receiving legal advice, or for the dominant purpose of Amcor being provided with professional legal services with respect to litigation or anticipated litigation. This dispute was ultimately resolved by orders I made on or about 20 September 2018.
6 Following those orders, the remainder of the interlocutory steps were managed by the trial judge. The trial of the proceeding commenced on 2 March 2020. After the parties completed their opening submissions, the parties attended a judicial mediation on 17 March 2020, which was unsuccessful.
7 In the meantime, the public health crisis caused by the COVID-19 pandemic intensified, and, after dealing with some disputes regarding the admissibility of evidence, the trial judge adjourned the trial of the proceeding before any witnesses started giving evidence, to a date when in person hearings could be expected to resume. The trial is now scheduled to resume on 1 February 2021.
8 On 5 March 2020, Amcor issued two subpoenas to produce documents directed at the consultants, including:
(a) Mr Shayne Linke of Contour Consultants Aust Pty Ltd ('Contour'), a firm of town planning consultants engaged by Glenvill in about July 2013 to assist Glenvill with, among other things:
(i) the preparation and submission of a development plan for the site;
(ii) liaising directly with the Yarra City Council as to what steps, requirements and information Glenvill needed to undertake and provide for Yarra Council to consider and approve a development plan for the site;
(iii) preparing and submitting planning permit applications and other documentation to Yarra Council; and
(iv) preparing and submitting planning applications to Yarra Council for the demolition of non-heritage listed buildings located on the site.
(b) MGS Architects Pty Ltd ('MGS') a firm of architects engaged by Glenvill in or about July 2013 as its architect and master planner for the development of the site.
9 The consultants produced many thousands of documents to the Court in response to the subpoenas. On 20 March 2020, the trial judge directed that the solicitors for Glenvill be permitted to uplift the documents produced by the consultants for the purpose of identifying any documents over which Glenville sought to maintain a claim for legal professional privilege.
10 On 17 April 2020, the solicitors for Glenvill produced a list of 331 documents on which Glenvill claimed to be subject to legal professional privilege ('privilege list'), on the grounds that they evidenced communications made for the purpose of Glenvill obtaining legal advice from Planning & Property Partners Pty Ltd ('PPP') and Minter Ellison with respect to various aspects of the development process. Following correspondence between the parties, the number of documents in the privilege list has now been reduced to 280 documents.
11 PPP was engaged by Glenvill sometime prior to July 2013, following which its principal, Mr Mark Naughton, carried out the following work for Glenvill:
(a) "Advice in 2013 in respect of the intended introduction of 'development plan' controls to guide the development of the site [centred] around what became known as DPO11 to the Yarra Planning Scheme";
(b) "Drafting up to and around October 2013 concerning the potential introduction of a site specific control (Incorporated Document) under the then schedule to clause 52.03 of the Yarra Planning Scheme. This was geared around providing a "quicker" regime around which site preparation and remediation activities could be expedited at the site";
(c) "Ongoing advice concerning options for removal or variation of restrictive covenants at the site. This was then followed by [an application] for and [the achievement of] a planning permit for covenant removal";
(d) "...correspondence in respect to Melbourne Water's project at the time to use part of the Amcor site as a construction compound for the life of what was known as the Alphington Sewer Project."
12 Minter Ellison were engaged by Glenvill in or about November 2013 to advise and represent Glenvill in relation to the proposed redevelopment of the site, which included the following tasks:
Stage 1
(a) Review the "Dropbox" materials provided, including technical reports and agreements;
(b) review the planning and environmental controls applying to the site;
(c) attend a site inspection;
(d) prepare scopes of work for Aboriginal heritage and flora and fauna consultants;
(e) consider approvals requirements and prepare a strategy to enable subdivision of the land so that titles can issue;
(f) advise on queries raised by Council, including the extent of flexibility for location of precinct boundaries and legal mechanism to secure public open space contribution;
(g) attend any necessary meetings, including kickoff meetings with consultants, such as Aboriginal heritage consultants, flora and fauna consultants and contaminated land consultants, to assist you manage risks associated with 'secondary' consent requirements;
(h) assist you to settle and submit (if necessary) an EPBC referral in relation to the proposed development; and
(i) provide you with ad hoc advice regarding relevant statutes and policies as required.
Stage 2
(a) Preparing and appearing at any necessary VCAT hearing/s. This may include:
(i) Drafting and lodging the Application for Review;
(ii) attending any necessary meetings;
(iii) Settling any expert witness statements;
(iv) settling any amended documentation;
(v) preparing submissions; and
(vi) attending any hearings, including Practice Day hearing and meditation
13 On occasion during the course of 2014 and 2015, Minter Ellison briefed counsel with respect to various matters, but there does not appear to have been any actual litigation on foot regarding planning issues associated with the development of the site.
14 Further, in 2017, Glenvill engaged Minter Ellison with respect to VicRoad's planned acquisition of part of the site, with the scope of work being described as follows:
We will advise you in relation to the negotiations for the acquisition of the land required by Vicroads for the Chandler Highway road widening project (Affected Property) and in relation to the commercial arrangements with Vicroads for the construction of the Main Street intersection works. We will prepare and amend relevant documents to appoint you as the agent and/or attorney of Amcor to manage the compensation process for the Affected Property, including any agreement for the construction of the Main Street Intersection works. We will also prepare or amend necessary documents to give effect to arrangements or agreements with Amcor and/or Vicroads in relation to the Affected Property and the land required for the Main Street intersection works. This will include:
(a) reviewing documents to which you are a party including the Contract of Sale with Amcor Limited (Amcor) as novated and amended (Contract) and relevant licence agreements;
(b) providing oral and written legal and strategy advice in relation to your dealings with Vicroads and Amcor;
(c) reviewing and amending a draft agency agreement; including drafting a power of attorney;
(d) considering and drafting the terms of an access licence for Vicroads,
(e) advising on relevant provisions of the Land Acquisition and Compensation Act 1986 (Vic), Transfer of Land Act 1958 (Vic) and Sale of Land Act 1962 (Vic);
(f) attending meetings (in person or by phone) with Vicroads and/or its legal representatives in relation to the Main Street intersection works;
(g) preparing, reviewing and/or amending documents setting out the commercial agreement with Vicroads in relation to the acquisition of the Affected Property and the Main Street intersection works; and
(h) reviewing and advising on consequential amendments to the agreement in relation to the Main Street intersection works including all necessary conferences
15 Amcor contests Glenvill's claims for privilege with respect to the documents in the privilege list. Written submissions were exchanged between the parties between 20 July 2020 and 30 July 2020. However, during the course of most of the second half of 2020, the parties and the Court were largely concerned with amendments to pleadings and the filing and service of additional expert evidence. On 9 December 2020, the trial judge made orders referring the dispute between the parties concerning the status of documents in the privilege list to me for adjudication, along with the objection by Amcor to the tender by Glenvill of two documents discovered by Glenvill on the grounds that the documents were immune from disclosure by reason of s 131 of the Evidence Act 2008 (Vic) ('Evidence Act').
16 The parties agreed that the disputes concerning the documents in the privilege list and the documents for which without prejudice privilege is claimed could be determined 'on the papers', with an agreed sample of forty documents (plus attachments) provided to me for review on 17 December 2020.
17 Glenvill relied upon an affidavit affirmed by its solicitor, Mr Pietro Lettieri of Kalus Kenny Intelex ('KKI') on 10 July 2020 ('Lettieri affidavit'). In the Lettieri affidavit, Mr Lettieri deposed, in summary, as follows:
(a) as to the number of documents produced by the consultants, and the review process undertaken by KKI for the purpose of identifying documents for inclusion in the privilege list;
(b) he identified the names, employers, job titles and email addresses of the individuals who were parties to the communications evidenced by documents in the privilege list;
(c) Glenvill's engagement of PPP and Minter Ellison, as referred to in paragraphs 12 and 14 above;
(d) Glenvill's engagement of the consultants referred to in paragraph 8 above;
(e) Glenvill's engagement of other consultants, such as GTA Consultants, a traffic engineering consultancy;
(f) the engagement by Glenvill's joint venture partner, Alpha Partners, of Mr John Lincoln of Linc Development Management Pty Ltd ('Linc') as Alpha Partner's development manager for the site;
(g) he provided further details of the nature of the role of the consultants. In particularly, Mr Lettieri deposed that a director of Glenvill, Mr Len Warson, informed him that Mr Linke was engaged by Glenvill due to his knowledge of the planning issues arising out of the development of the site, and his good relationship with Yarra City Council. Mr Warson told him that Mr Linke was given broad authority to act for Glenvill in its dealings with Yarra City Council, and dealt directly with Glenvill's lawyers on town planning matters, as if he was an employee of Glenvill[1];
(h) he deposed as follows:
The privileged documents include categories of documents that comprise communications between lawyers retained by Glenvill and non-lawyers retained by Glenvill, and in some instances, between non-lawyers only.
Privilege arises because in each such instance because:
(a) the purpose of the communication was the procuring of legal advice for Glenvill; or
(b) the communication was made in anticipation of litigation; or
(c) the communication conveyed the substance of advice from, or instructions given to, Glenvill's lawyers in a manner that was not inconsistent with that original purpose.
(i) he provided details of the interactions between the consultants and Glenvill's lawyers, including:
(i) Contour and PPP concerning ongoing negotiations with Yarra City Council regarding the approvals required for the development of the site;
(ii) Contour and Minter Ellison regarding planning matters and the compulsory acquisition by VicRoads of part of the site;
(iii) Contour and MGS in relation to legal advice provided by Minter Ellison to Contour;
(iv) Contour's request for GTA to provide documents in relation to the proposed acquisition by VicRoads of part of the site for the purpose of obtaining legal advice from Minter Ellison regarding that issue; and
(v) Contour and representatives of Alpha Partners, including Mr John Lincoln of Linc.
(j) he exhibited a number of confidentiality agreements prepared by Minter Ellison and executed by representatives of Contour, MGS and GTA.
18 Amcor relied upon parts of an affidavit affirmed by its solicitor, Mr Mitchell Coidan of Gilbert + Tobin ('G+T') on 3 July 2020. Mr Coidan deposed, in summary, as follows:
(a) he observed that Glenvill has not identified any proper basis for its claim for 'legal advice' privilege;
(b) he referred to an analysis of the privilege list undertaken by a paralegal employed by G+T, deposing that Glenvill has:
(a) not adequately described some of the documents over which it asserts a claim of "Legal Advice" privilege (to enable the Defendant to properly consider those claims);
(b) made claims of "Legal Advice" privilege over correspondence to which no lawyer was a party;
(c) made claims of privilege over a significant portion of attachments to emails, for which it has not adequately articulated the basis of its claim for privilege;
(d) has made claims of privilege over documents otherwise produced as part of the General Subpoena Materials; and
(e) made claims of privilege over documents otherwise produced in the course of the Plaintiff's discovery throughout the proceeding.
(c) he referred to a number of examples of documents enumerated in the privilege list which were said to support the contentions advanced above;
(d) he exhibited a letter from G+T to KKI dated 25 June 2020, which canvassed, among other things, the following matters:
(i) the inadequacy of the description of the documents in the privilege list;
(ii) the failure of KKI to provide a proper basis for Glenvill's privilege claims;
(iii) he observed that, the claim for legal advice privilege in the documents in the privilege list was made for the entirety of the documents, with no redactions to enable non-privileged parts of any of the documents to be inspected;
(iv) the inclusion in the privilege list of documents which appear to have recorded correspondence between consultants engaged by Glenvill, and which do not appear to have been authored, received by, or copied to Glenvill's solicitors;
(v) the significant number of attachments to emails which were the subject of a claim for legal professional privilege;
(vi) the significant number of documents in the privilege list which appeared to be duplicates of documents produced by the consultants for which no claim for privilege has been maintained by Glenvill;
(vii) the number of documents within the privilege list which have already been discovered by Glenvill; and
(viii) G+T's request that KKI review the contents of the privilege list in light of the observations made by G+T.
19 This letter, and Mr Coidan's affidavit, predated the filing and service of the Lettieri affidavit. The Lettieri affidavit annexed a revised version of the privilege list, which classified the documents in the privilege list under the following headings ('dominant purpose categories'):
20 In its written submissions filed on 20 July 2020, Glenvill referred to the applicable legal principles, observing that disputes of the current kind, where the recipient of a subpoena is not the privilege holder, are to be resolved in accordance with common law principles. Glenvill submitted as follows:
The Lettieri affidavit states sufficient grounds to establish [Glenvill's] privilege claims. If any doubt remains that might necessitate inspection by the Court [Glenvill] will consent to a determination of its claims on the papers ie by inspection of those documents.
21 In its written submissions filed on 20 July 2020, Amcor submitted, in summary, as follows:
(a) seven of the 25 dominant purpose categories do not properly give rise to claims of legal professional privilege;
(b) many of the documents in the privilege list do not appear to accord with the dominant purpose categories referred to in the Lettieri affidavit;
(c) the allocation of the documents in the privilege list to the dominant purpose categories fails to establish the actual dominant purpose of the bringing into existence of each and every document in the privilege list, and fails to identify why the privilege ought to extend to entire communications or documents, as opposed to parts of those documents;
(d) Glenvill's allocation of the documents to particular dominant purpose categories, and its claims for legal professional privilege in the documents in the privilege list, are not supported by proper evidence. In particular, no evidence has been adduced from the maker of the relevant communications;
(e) it appears that many of the communications evidenced by documents in the privilege list were brought into existence for predominantly commercial reasons, such as Glenvill obtaining urban planning, architectural and master planning services from the consultants;
(f) some of the documents in the privilege list were authored or received by Mr John Lincoln of Linc, who was engaged by Alpha Partners, not Glenvill, and there is no confidentiality agreement with Mr Lincoln in evidence;
(g) the privilege list is inadequate in its form, in that the descriptions of the subject of emails, and attachments to emails are vague and/or unintelligible;
(h) many of the documents in the privilege list involve communications between third parties, and do not involve either Glenvill personnel or lawyers; and
(i) some of the documents in the privilege list are documents which appear to have already been produced by the consultants and not objected to by Glenvill, or had previously been discovered by Glenvill.
22 Amcor's submissions included three annexures, as follows:
(a) Annexure A identified several documents in the privilege list where their description indicated that they did not fall within the dominant purpose category assigned to them;
(b) Annexure B identified examples of documents in the privilege list where it appears that inappropriate claims have been made by Glenvill over attachments to documents; and
(c) Annexure C identified documents in the privilege list which appear to have recorded communications between the consultants and other third parties and/or Glenvill development managers, without the apparent involvement of any lawyer.
23 In its written submissions filed on 29 July 2020, Amcor submitted that nothing in Glenvill's submissions filed 20 July 2020 caused it to alter its position.
24 In its written submissions filed on 29 July 2020, Glenvill responded directly to Amcor's submissions dated 20 July 2020. In particular, Glenvill submitted as follows:
(a) Amcor's criticisms of the evidence adduced to support Glenvill's privilege claims ignores the evidence adduced on information and belief from Mr Naughton of PPP and Mr Carey of Minter Ellison, and, in any event, is inconsistent with the approach taken by Amcor when pressing its privilege claims in 2018;
(b) Amcor's submissions conflate the purpose of the retainer of the consultants with the purpose of documents authored by or received by the consultants;
(c) an email does not have to have a 'clear' or 'intelligible' subject in order for it to be privileged;
(d) the fact that the parties to communications are not lawyers ignores the evidence in the Lettieri affidavit;
(e) the Lettieri affidavit made it clear that Glenvill anticipated that there would be litigation concerning the development approval, and in respect of the claim for compensation from VicRoads, and briefed counsel accordingly;
(f) no evidence has been adduced in support of Amcor's allegation that there has been a waiver of privilege on the part of Glenvill; and
(g) Glenvill responded in detail to the specific allegations made by Amcor in Annexures A, B and C referred to in paragraph 22 above. It is not necessary for present purposes to canvass those submissions, given that I have inspected the documents in the privilege list.
25 As observed earlier in these reasons, given that the objection to inspection of the documents in the privilege list is made by Glenvill, not the consultants, common law principles apply to the task of determining whether the communications evidenced by the documents in the privilege list are immune from disclosure by reasons of them being made for the dominant purpose of Glenvill obtaining or receiving legal advice, or for the purpose of litigation or anticipated litigation. The relevant principles are concisely and conveniently summarised in Glenvill's written submissions of 20 July 2020, as follows (omitting citations):
(a) the Plaintiff has the onus of establishing the privilege claims, including each factual element necessary to establish the requisite dominant purpose. In that respect, focused and specific evidence is required in respect of each communication, rather than mere generalised assertion let alone opaque and repetitious verbal formulae. There should be sufficient evidence which proves directly or by inference that the dominant purpose for the communication was for the relevant client to be given or to obtain legal advice. The communication also has to be confidential;
(b) the relevant time for ascertaining purpose is when the communication was made;
(c) the relevant purpose may be either than of the author or initiator of the communication, or the person at whose request or under whose authority the communication was created or made. The circumstances will dictate the focus;
(d) the purpose is to be objectively ascertained;
(e) it is not sufficient to show a substantial purpose of that the privileged purpose is only one of two or more purposes of equal weighting. The requisite purpose must predominate;
(f) it may be that that the entirety of a document may be privileged. Alternatively, it may be that only part of a document meets the dominant purpose test;
(g) a document may be privileged to the extent to which it records a privileged communication, even if the document itself would not satisfy the dominant purpose test; and
(h) the Court has the power to examine the documents in question and, respectfully, should not be reticent in exercising that power.
26 In the current application, Amcor contests Glenvill's claim for privilege with respect to a number of documents in the privilege list which do not appear to be communications between Glenvill and its lawyers, but which are communications between Glenvill and third parties, such as the consultants, or between third parties.
27 The relevant common law test for evaluating whether communications involving third parties attract legal professional privilege is to be found in the following extract from Pratt Holdings Pty Ltd v Commissioner of Taxation[2], as follows:
Legal advice privilege is capable of extending to non-agent, third party authored documentary communications. Where a third party authors a document, that party's relationship (eg, agency) with the party that engages it is not relevant to the issue of legal professional privilege. Rather, the important consideration is the nature of the function which the third party performs. If that function is to enable the engaging party to make the communication necessary to obtain legal advice which it requires, then privilege should attach to the documentary communication authored by the third party.
The availability of the privilege should not depend on whether the document is authored by an agent or another third party, nor on whether the document is delivered to the lawyer directly by the author or through the client. Provided that the dominant purpose requirement is met, the privilege should extend to communication by the author to the client.
28 Further, the evaluation of Glenvill's claims for legal professional privilege with respect to what on their face appear to be communications between third parties needs to be cognisant of the commercial and legal context in which the communications were made. The development of the site by Glenvill, was not a simple, one-off, property development. The redevelopment of the site is a major urban renewal project, which required Glenvill to deal with a range of town planning, legal, technical, engineering, design and environmental issues over a number of years. That Glenvill felt the need to engage a number of specialist consultants, and did so is unsurprising. To the extent that Amcor retained an interest in the development of the site, it did the same, as illustrated by its engagement of Mr Kluckow. Further, given the nature of the issues involved, and the significant commercial stakes associated with the development of the site, it is equally unsurprising that Glenvill would have had lawyers involved at each step of the project, and that those lawyers would not only take instructions from Glenvill, but also from the specialist consultants engaged by Glenvill.
29 In The Oswal Matters - Pre Trial Discovery and Privilege Applications,[3] I had cause to consider, among other things, whether a receiver could make good claims for legal advice privilege in communications between the receivers and third parties in the context of the sale of a substantial business undertaking by the receivers in the face of opposition from the principals of the owners of the enterprise, stating as follows:
It is inconceivable that in such circumstances there would not be lawyers involved at every step of the way. Further, it is likely that there will be some degree of informality in the communications between the lawyers, the client or clients, and third parties engaged by the lawyers and the clients, such that communications which record legal advice or instructions for legal advice would not be capable of being described in such a way as to make their contents self-evident. In that regard, the remarks of Allsop J (as he then was) in DSE (Holdings) Pty Ltd v InterTan ('DSE Holdings') are apposite:
It is necessary to put this direct evidence in a little context. The respondents retained a large and well-known international investment banking house (the terms of the arrangement and common sense do not require strict adherence to corporate form here) and a well-known and highly experienced firm of solicitors to assist them in the negotiation, documentation and effectuation of a large commercial transaction - the sale of shares in the respondents' then Australian subsidiary, for over $100 million. The subsidiary owned and ran a chain of businesses. I can, and do, readily infer that the sale of such property involved a large and complex negotiation and transaction, requiring the skilled and careful advice of lawyers and experienced commercial people within the investment house. I can also readily infer that implicit (even if, as appears to be the case, no express words of retainer of AAR were uttered or written) in AAR's retainer ('to assist in relation to the Sale': para 4(3) of Mr Reid's affidavit) was a request to provide all relevant legal advice on matters, whether great or small, as they arose in discussion either with the clients or SSB, in connection with the undertaking of the sale, including, but by no means limited to, drafting documents, both to reflect the clients' instructions and from their experience to best protect and advance their clients' interests. As Taylor LJ (as his Lordship then was) said in Balabel v Air India [1988] Ch 317 at 330:
... legal advice is not confined to telling the client the law; it must include advice as to what prudently and sensibly should be done in the relevant legal context.
I will return to Balabel in due course. For present purposes its importance lies in the recognition that the nature of provision of legal advice by a firm such as AAR in a context of the kind here was no doubt multi-faceted, complex and not amenable to sharp division between what was advisory and what was merely administrative.[4]
30 Similar considerations apply in the current application. Further, in the current applications, the fact that the consultants executed confidentiality agreements concerning their involvement in the various aspects of the planning for the development of the site bolsters Glenvill's contention that the consultants formed part of a close knit team giving instructions to and receiving and implementing the legal advice provided to Glenvill by its lawyers regarding town planning matters and other issues concerning the development of the site. Further, the actions of VicRoads in seeking to acquire part of the site for the purpose of a significant road expansion project added further complexity and raised further legal issues in what was already a complex undertaking.
31 As noted above, it was agreed between the parties that I inspect the documents in the privilege list. The results of that inspection are summarised in Annexure A to these reasons. Given the nature of the exercise (inspection of documents over which a claim for privilege has been made) and, in the interests of expedition given the looming trial date, I do not propose to give extensive reasons. However, I make the following observations with respect to the documents where Glenvill's claim for privilege has been upheld:
(a) given that I have inspected the documents in the privilege list, the fact that the descriptions of some of the documents in the privilege list are uninformative and/or unintelligible is not of great significance to the current dispute;
(b) without descending into any great detail, it is apparent from the contents of the documents in the privilege list that the consultants were actively engaged in providing information to and seeking legal advice from Minter Ellison for the purposes of Minter Ellison providing Glenvill with legal advice, and, in some cases, for the purpose of Minter Ellison providing legal services with respect to anticipated litigation, namely possible litigation between Glenvill and/or Alpha Partners and VicRoads with respect to compensation payable for its compulsory acquisition of part of the site;
(c) a number of the internal communications amongst the consultants (which understandably aroused the suspicions of the solicitors for Amcor) are merely communications whereby one of the directors/employees of the consultants forwarded privileged communications (such as legal advice or requests for legal advice) to another team member without additional input or comment;
(d) I have classified attachments in accordance with the classification of the host email, in accordance with the principles in Commissioner of the Australian Federal Police, v Propend Finance Pty Ltd,[5] notwithstanding the likelihood that those attachments may not, on their own, attract legal professional privilege, and thus may have already been produced to Amcor; and
(e) given the subject matter of the documents in the privilege list, the evidence in the Lettieri affidavit concerning the roles of the various authors and recipients of the communications evidenced by the documents in the privilege list is, combined with the inspection of the documents in the privilege list, sufficient evidence for the purposes of making good Glenville's claims for privilege.
32 However, I have rejected Glenvill's claims for privilege with respect to a modest number of documents in the privilege list. Again, it is not necessary or desirable to go into too much detail with respect to the reasons for rejecting these claims, save for making the following observations:
(a) in some cases, Glenvill appears to have taken the approach that if a particular topic or issue is something about which Glenvill has sought or received advice from Minter Ellison, that all communications within Glenvill and/or the consultants, or between Glenvill and the consultants regarding those topics or issues must necessarily be protected by legal professional privilege. That ignores the necessity to evaluate the purposes for which each of the individual communications were made;
(b) in some cases, the communications between the consultants and Minter Ellision merely concern administrative matters, such as the execution of confidentiality agreements. While the execution of a confidentiality agreement by a consultant bolsters Glenvill's argument that the communications between the consultant and Glenvill's lawyers (and Glenvill itself) were intended to remain confidential, so as to rebut any assertion that the disclosure of legal advice to the consultants amounted to a waiver on the part of Glenvill, it is difficult to see how the communications which solely concerned the execution of such documents, being merely an administrative exercise, could be protected by legal professional privilege; and
(c) in some cases, only a glancing reference to legal advice sought or received from Minter Ellison is made, which could best be dealt with by limited redactions to those documents, as identified in Annexure A.
33 I did give some consideration to the question of whether there was a sufficient commonality of interest between Glenvill and Alpha Partners such that Alpha Partners and its consultant, Mr Lincoln of Linc, could be considered to be within the 'circle of confidentiality' for the purposes of Glenvill maintaining any privilege in documents in the privilege list to which Alpha Partners and/or Mr Lincoln had been parties. While the evidence on this issue is relatively limited, it does seem to me that, as joint venture partners in the development of the site, there was such a common interest between Glenvill and Alpha Partners, insofar as the subject matter concerned the planning issues associated with the development of the site and the proposed acquisition of part of the site by VicRoads.
34 Only six of the documents in the privilege list (not including attachments) were addressed or copied to Mr Lincoln, two of which (MGS.001.002.0857 and MGS.001.002.071) I have found not to be immune from disclosure by reason of legal professional privilege, and one of which (CTR.001.001.0943) I have found to be protected only in part. My review of the remainder (MGS.001.002.1948, CTR.001.001.0268, and CTR.001.001.0408) shows that the subject matter of the advice being obtained by Glenvill was subject matter which would also be of concern to Alpha Partners in its capacity as Glenvill's joint venture partner and the co-owner of the site.
35 Finally, Amcor claims that two documents sought to be tendered at trial by Glenvill are inadmissible, on the grounds that the documents concerned, being email exchanges between Craig Joel of Glenvill, and Julie McPherson of Amcor, are subject to without prejudice privilege, which Amcor refuses to waive. The first document (GLV.005.001.0469), is an email from Ms McPherson, who is Amcor's general counsel, dated 26 April 2016, is headed 'Fairfield - without prejudice', and responds to various emails sent by Mr Joel (a director of Glenvill with oversight of the development of the site) in March and April 2016, with respect to, among other things:
(a) a notice issued by Glenvill pursuant to SC10.8(c) of the contract of sale;
(b) a proposal by Glenvill that the parties undertake a non-binding dispute resolution process; and
(c) Glenvill's estimate of the costs required to complete the remediation of the site.
36 The second document (GLV.005.001.0677) is a chain of emails, as follows:
(a) the first email is an email from a representative of one of Glenvill's contractors, GHD, to Travis Nuttall, a development manager of Glenvill, dated 6 July 2016, outlining reports of contamination at the site;
(b) a response by Mr Nuttall on 6 July 2016, and a further response from GHD on 6 July 2016;
(c) on 6 July 2016, Mr Joel sent this exchange by email to Ms McPherson, under the heading 'Alphington GHD Environmental Contingent Liability Report - Further Information - WITHOUT PREJUDICE';
(d) a reply from Ms McPherson on 7 July 2016 suggesting a meeting; and
(e) a reply from Mr Joel on 9 July 2016 regarding the purpose of and arrangements for the proposed meeting.
37 Amcor submitted that both of these documents comprise communications between Glenvill and Amcor at a time when they were in dispute regarding the remediation of the site, and were made in connection with an attempt to negotiate a settlement of the dispute, thus attracting the operation of s 131 of the Evidence Act.
38 Glenvill submitted that, while the documents are titled 'without prejudice', a review of the correspondence between the parties shows that they habitually exchanged correspondence, including formal notices and responses under the contract of sale, under the heading 'without prejudice'.[6] Glenvill submitted as follows:
There is nothing in the documents that falls within s 131 of the Evidence Act 2008 (Vic). In any event, the communications pertain to the exchange of information under the APM Contract. They are responsive to other communications which have been tendered. These two communications are reasonably necessary to enable a proper understanding of the full chain of correspondence. The proviso in s 131(2)(c) of the Evidence Act therefore applies.
39 Section 131 of the Evidence Act provides as follows:
Exclusion of evidence of settlement negotiations
(1) Evidence is not to be adduced of -
(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or
(b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.
(a) the persons in dispute consent to the evidence being adduced in the proceeding concerned or, if any of those persons has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other persons so consent; or
(b) the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute; or
(c) the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced; or
(d) the communication or document included a statement to the effect that it was not to be treated as confidential; or
(e) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or
(f) the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue; or
(g) evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or
(h) the communication or document is relevant to determining liability for costs; or
(i) making the communication, or preparing the document, affects a right of a person; or
(j) the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or
(k) one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power.
(a) the reference to the relevant communications being 'without prejudice' is relevant, but not determinative of the question of admissibility;
(b) the contents of the relevant documents do not support the claim that the documents evidence attempts to resolve a dispute between the parties; and
(c) the documents form a claim of correspondence between the parties regarding Glenvill's claims for reimbursements of remediation costs under the contract of sale, and the remediation strategy generally, and that the absence of those documents from the evidence in the proceeding could hamper a full understanding of the chain of correspondence, between the parties with respect of those issues.
41 While the term "in connection with an attempt to settle a dispute" is reasonably broad in its application, I do not consider it to be so broad as to catch all communications "relating to" an attempt to resolve a dispute. The question is whether the communications in question, which do concern matters in dispute between the parties at the time, can be characterised as recording or facilitating attempts to resolve the dispute between the parties.
42 The first email (GLV.005.001.0469) is better characterised as a communication in which Ms McPherson advances Amcor's position with respect to the disputes between them regarding the proper construction of the sale and the parties' obligations under the contract of sale, and seeks further information and/or explanations from Amcor. Apart from the reference to 'without prejudice' in the title to the email, I am at a loss to see how the statements of position in this email could be characterised as an attempt at dispute resolution.
43 The position with respect to the communications between Mr Joel and Ms McPherson in GLV 005.001.0677 is not so clear cut. Certainly Mr Joel's emails refer to the need to be 'moving forward' and 'progressing matters', possibly with the involvement of lawyers, which would suggest that the communication was connected with an attempt to resolve a dispute, or disputes. However, in my view, in the absence of any evidence regarding what occurred at the proposed meeting referred to in these emails, the communications are more properly characterised as being preparatory communications regarding the information to be exchanged by the parties and the arrangements being made to have further discussions with respect to each party's compliance with their obligations under the contract of sale.
44 Draft orders will be circulated alongside these reasons to progress giving effect to the matters determined by these reasons.
Glenvill instructions to Minter Ellison (including via Contour) for legal advice
APM Summary of Initial Briefing Documents for Minter Ellison.docx
Glenvill instructions to Minter Ellison (including via Contour) for legal advice
Contour request for legal advice from Minter Ellison on behalf of Glenvill
Contour request for legal advice from Minter Ellison on behalf of Glenvill
Contour request for legal advice from Minter Ellison on behalf of Glenvill
Glenvill request to Contour to obtain legal advice from Minter Ellison
Contour internal email regarding Glenvill request for legal advice from Minter Ellison
Minter Ellison advice to Contour or MGS on behalf of Glenvill
Email to S Linke re Amcor - Location of Precinct Boundaries (4.2.14).PDF
Minter Ellison advice to Contour or MGS on behalf of Glenvill
Contour internal email transmitting Minter Ellison legal advice
Contour request for legal advice from Minter Ellison on behalf of Glenvill
Contour request for legal advice from Minter Ellison on behalf of Glenvill
Contour request for legal advice from Minter Ellison on behalf of Glenvill
Contour communication to Glenvill concerning Minter Ellison legal advice or instructions for legal advice
Minter Ellison advice to Contour or MGS on behalf of Glenvill
Confidentiality and legal professional privilege - Client - Alphington.pdf
Minter Ellison advice to Contour or MGS on behalf of Glenvill
Glenvill instructions to Minter Ellison (including via Contour) for legal advice
Glenvill request to Property & Property Planning Partners for legal advice
RE: Alphington: building heights and the Maddocks letter
Contour communication to MGS regarding Minter Ellison legal advice
Contour communication to Glenvill concerning Minter Ellison legal advice or instructions for legal advice
Glenvill instructions to Minter Ellison (including via Contour) for legal advice
Glenvill instructions to Minter Ellison (including via Contour) for legal advice
s173 structure.pptx
Glenvill instructions to Minter Ellison (including via Contour) for legal advice
Contour request for legal advice from Minter Ellison on behalf of Glenvill
Contour request for legal advice from Minter Ellison on behalf of Glenvill
Minter Ellison advice to Contour or MGS on behalf of Glenvill
Minter Ellison advice to Contour or MGS on behalf of Glenvill
Contour internal email regarding Glenvill request for legal advice from Minter Ellison
Contour internal email regarding Glenvill request for legal advice from Minter Ellison
Contour internal email regarding Glenvill request for legal advice from Minter Ellison
Contour internal email regarding Glenvill request for legal advice from Minter Ellison
Contour internal email regarding Glenvill request for legal advice from Minter Ellison
Contour internal email regarding Glenvill request for legal advice from Minter Ellison
VICROADS_n420436_Com munity_Briefing_Option_Pl ans_Chandler_Highway~3 349807.PPT
Contour internal email regarding Glenvill request for legal advice from Minter Ellison
Contour internal email regarding Glenvill request for legal advice from Minter Ellison
Contour internal email regarding Glenvill request for legal advice from Minter Ellison
Contour internal email regarding Glenvill request for legal advice from Minter Ellison
Contour internal email regarding Glenvill request for legal advice from Minter Ellison
Contour internal email regarding Glenvill request for legal advice from Minter Ellison
Contour internal email regarding Glenvill request for legal advice from Minter Ellison
Contour communication to Glenvill concerning Minter Ellison legal advice or instructions for legal advice
Contour communication to Glenvill concerning Minter Ellison legal advice or instructions for legal advice
Contour communication to Glenvill concerning Minter Ellison legal advice or instructions for legal advice
Contour communication to Glenvill concerning Minter Ellison legal advice or instructions for legal advice
Glenvill communication concerning the substance of legal advice received from Minter Ellison
GTA Consultants communication concerning the substance of Minter Ellison legal advice
GTA Consultants communication concerning the substance of Minter Ellison legal advice
Contour internal email transmitting Minter Ellison legal advice
Contour internal email transmitting Minter Ellison legal advice
Contour internal email transmitting Minter Ellison legal advice
Legal advice from Planning & Property Partners to Glenvill
Glenvill request to Property & Property Planning Partners for legal advice
Project: APM Alphington - File Transfer - Development Plan submission document
MGS communication to Minter Ellison (and others) for the purpose of legal advice
MGS communication to Minter Ellison (and others) for the purpose of legal advice
Project: APM Alphington - File Transfer - Development Plan submission document
MGS communication to Minter Ellison (and others) for the purpose of legal advice
MGS communication to Minter Ellison (and others) for the purpose of legal advice
FW: Project: APM Alphington - File Transfer - Development Plan submission document
Contour internal email forwarding MGS instructions to Minter Ellison for legal advice
Contour internal email forwarding MGS instructions to Minter Ellison for legal advice
MGS communication to Contour concerning the substance of Minter Ellison legal advice
Communication by consultant concerning substance of Minter Ellison legal advice
Communication by consultant concerning substance of Minter Ellison legal advice
[1] This evidence is consistent with the witness statement of Mr Linke filed on 2 April 2019.
[6] This assertion is consistent with my recollection of the documents I reviewed in 2018.
Alphington Developments Pty Ltd
Amcor Limited
(2004) 136 FCR 357
(2003) 135 FCR 151
(1997) 185 CLR 501