Plaintiff v Defendants

Based on my own involvement in, and knowledge of, events, communications and documents relevant to these proceedings, I agree with the assessments and adopt them as my own.[5]

1. In addition, the TDJV relies upon Mr Krsticevic's first affidavit sworn on 21 June 2021, which was filed in support of the privilege claim the subject of the First Ruling, its written submissions filed on 20 October 2021, and a document entitled 'Schedule of Annexure A Privileged Documents' (TDJV's Schedule), which was filed on 27 September 2021 pursuant to order 10(a) of the orders of Stynes J on 13 August 2021. TDJV's Schedule was also provided to the Court in Excel format.
2. The TDJV's Schedule sets out the same information contained in MK-6, save that it identifies the section or sections of the Evidence Act in respect of which privilege is claimed and does not identify which of the seven categories of privilege are said to apply to each document.
3. In opposition to the TDJV's claims of privilege, Siemens relies upon written submissions filed on 1 November 2021, and the affidavits and witness statements identified in [3] of those submissions. The affidavits and witness statements are largely relied upon for the question of waiver.
4. Siemens' written submissions have the following three annexures:

(a) Schedule A, being a spreadsheet identifying each of the documents in respect of which the TDJV claims privilege and combines the information from Krsticevic 3 and the TDJV's Schedule. Siemens' Schedule A also sets out information obtained from the metadata disclosed by the TDJV in respect of the documents, such as the document type (such as email, attachment, Adobe PDF format), title, author and recipients.[6] Schedule A also refers to hundreds of documents over which the TDJV initially claimed privilege, but has since determined to produce to Siemens. Schedule A was also provided to the Court in Excel format;

(b) Schedule B entitled 'Claims For Privilege Which Are Not Maintainable' which identifies Siemens' particular contentions in relation to individual documents in respect of which Siemens challenges the TDJV's claims to privilege.[7] Siemens' counsel advised that privilege is not challenged in respect of documents not listed on Schedule B.[8] Siemens tendered a 356 page bundle of documents referred to in Schedule B; and

(c) Schedule C entitled 'Chronology', being a chronology prepared in relation to the Incident.[9] Siemens tendered a 248 page bundle of the documents referred to in Schedule C.

1. In response to a request by the Court for the TDJV to identify any disagreement with the contents of Schedule A, on 12 November 2021 the solicitors for the TDJV provided a revised version of Schedule A in Excel format. It contains the information in Siemens' Schedule A in respect of the 164 documents which are the subject of the current privilege dispute. The entries for the documents which are not the subject of dispute were deleted.

1. I have prepared a List of the Disputed Documents which will be provided to the parties in Excel format. The List of Disputed Documents contains the information from the following columns from the TDJV's version of Schedule A:

(a) Columns A, B, and D to K of Schedule A, being the document ID and associated metadata for the disputed documents;

(b) Column M of Schedule A entitled 'Privilege' which notes whether privilege is claimed in full or for only part of the document;

(c) Column O of Schedule A entitled 'Prv. Category', which notes which of the TDJV's Categories 1 to 7 is claimed in respect of each document;[10]

(d) Column P of Schedule A entitled 'Evidence Act', which lists the sections of the Evidence Act under which privilege is claimed for each document (i.e. ss 118, 119, and/or 131); and

(e) Column Q of Schedule A entitled 'MK Affidavit Ref', which identifies the paragraphs of Krsticevic 3 that specifically refer to the document.

1. In a number of cases, the information provided by the parties in this column contained errors. These errors are noted in red font.
2. The List of Disputed Documents includes the following additional columns:

(a) Column O entitled 'Siemens' Schedule B Row Reference', which lists the row number in Siemens' Schedule B which addresses the document;

(b) Column P entitled 'Duplicates' which identifies any duplicates as set out in the TDJV's Schedule;

(c) Column Q entitled 'Ruling', which sets out my decision with respect to each document;

(d) Column R entitled 'Short Reasons' which gives short reasons for my decision; and

(e) Column S entitled 'Ruling Following Inspection', which gives my ruling following the inspection of documents claimed to be privileged.

C.1 Evidence Act****, ss 118 and 119 - Legal advice and litigation privilege

1. In the First Ruling at [19]-[24], I set out the applicable principles to claims under ss 118 and 119 of the Evidence Act, which equally apply to the present dispute.
2. I will, however, emphasise the following matters referred to therein.
3. Where there are multiple purposes for which a document was created or a communication sent, the Court must be satisfied that the privileged purpose was the dominant purpose of the document or communication. Where a document or communication is required for privileged and non-privileged purposes, this may require the privilege-holder to explain how non-privileged purposes have been fulfilled outside of the communication and document for which privilege is claimed.
4. For example, in Perry v Powercor Australia Ltd (Perry v Powercor),[11] Powercor claimed privilege over expert reports into the cause of the fire the subject of the proceeding. Powercor claimed that the dominant purpose in obtaining the reports was to allow its in-house solicitors to provide it with legal advice and to use the reports in anticipated legal proceedings against it. The Court identified a number of purposes for which the reports may have been commissioned, many of which are not privileged. Robson J found that Powercor had failed to adequately explain the reasons why it obtained the reports in view of the many different purposes for which it needed the report. No evidence was led by Powercor regarding any of these other business uses for the reports, its internal procedures, or legal obligations that would have required or made use of the information in the report. Thus, the Court was not in a position to determine whether legal advice or litigation was the dominant purpose of the reports.[12]
5. A similar conclusion was reached in the case of Liesfield v SPI Electricity Pty Ltd (Liesfield v SPI),[13] where Derham AsJ found that SPI had failed to discharge its onus as to the dominant purpose of documents relating to the investigation of the failure of SPI's assets in connection with the Black Saturday bushfires.[14]
6. In order for a document or communication to be privileged under s 119, 'there must be a real prospect of litigation, as distinct from a mere possibility, but it does not have to be more likely that not'.[15] The nature of an incident may be such as to make litigation of some kind 'inherently ... likely according to the ordinary course of human affairs',[16] such that the engagement and consultation with external lawyers may be presumed to be for legal advice, absent any contrary indications.[17]
7. There is one matter in the First Ruling that requires correction. At [23(i)] of the First Ruling, I said that evidence must be admissible direct evidence and not hearsay, citing Commissioner of Australian Federal Police v Propend Finance Pty Ltd (AFP v Propend).[18] The TDJV's counsel correctly submitted that as this is an interlocutory application, s 75 of the Evidence Act provides that hearsay evidence is admissible, provided that evidence of the source of the information or belief is adduced.[19]

C.2 Evidence Act****, s 131 - Settlement negotiation privilege

1. The key limitations on the scope of settlement negotiation privilege set out in s 131 of the Evidence Act are:

(a) the parties must be in a dispute, that is an 'existing dispute'.[20] A dispute is defined in s 131(5)(a) to mean a 'dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding'; and

(b) the communication must be made or the document prepared 'in connection with' an attempt to negotiate settlement of that dispute. That phrase is to be construed broadly.[21] It includes documents and communications forming part of the negotiations as well as those that are reasonably incidental to them.[22] However, the connection must be direct, and not merely 'in any way connected'.[23]

1. Ordinarily, in order to satisfy the court that a document has been prepared in connection with an attempt to resolve a dispute, evidence of the circumstances and context in which the document was created will be required.[24]
2. Labelling a communication or document 'without prejudice' is not determinative. Rather, determination of whether a communication was made in connection with an attempt to negotiate a settlement of a dispute is determined from the objective evidence, usually comprising the nature of the discussions and negotiations between the parties.[25]
3. Section 131(1)(b) applies to documents other than communications contemplated by s 131(1)(a). It covers documents such as working papers referable to the preparation of a settlement offer or a note recording the details of a settlement offer.[26]

C.3 Evidence Act****, s 133 - Inspection

The Court has a discretion under s 133 of the Evidence Act to inspect the documents to test a claim for privilege. Inspection should not be used to fill in gaps in the evidence, but provides a means of enabling a claim to be scrutinised and tested.[27]

1. The Court should not be hesitant in exercising the power,[28] and may exercise it even where no evidence has been adduced in support of a privilege claim.
2. The Court may refuse to exercise the discretion to inspect where the evidence does not provide a sufficient basis for the Court to make an assessment,[29] or where it would amount to a delegation to the Court of the task of establishing privilege in a way that is unfair to the party seeking disclosure.[30]
3. When addressing the Court's ability to inspect a document to scrutinise the claim for privilege, in Hancock v Rinehart, Brereton J outlined the unfairness that arises where inspection is the means by which the purpose of a document is to be determined, stating:

While the documents themselves may well illuminate the purpose for which they were created, to allow them to be used as evidence - let alone the sole evidence - in support of a claim for privilege, would be contrary to well‑established practice. It would also be grossly unfair to the other party: if the only evidence of purpose is to be inferred from the document itself, the party seeking access is deprived of any opportunity to test the asserted purpose, which would defeat rather than promote the intent of enabling claims to be tested and scrutinised. As Giles J observed in Woollahra Municipal Council v Westpac Banking Corporation:

The court should be able to proceed on evidence describing the documents and the circumstances of their creation, and should not unnecessarily pay regard to material which can not be known to the party challenging the claim to privilege.[31]

1. The parties rely upon lengthy written submissions which were expanded upon in oral argument that extended over two days. I will succinctly summarise the key arguments raised.
2. The TDJV asserts that it has led admissible evidence which establishes that each document is privileged. Mr Krsticevic is the Senior Legal Counsel and Company Secretary of Suez and is authorised by both Thiess and Suez to swear his evidence in support of the privilege claims.[32] He adduces evidence as to the TDJV's Steering Committee and his role in relation thereto. Importantly, Mr Krsticevic became a member of the Steering Committee in mid-2017, and prior to that attended the Steering Committee meetings.[33]
3. The TDJV argues that to the extent Mr Krsticevic's evidence is hearsay, he has articulated the grounds of the information and belief of the matters to which he has deposed. Mr Krsticevic has attested to reviewing each of the documents and agreeing with their categorisation in the seven categories set out in MK-6.[34] Counsel submitted that Mr Krsticevic's evidence is sufficient, in conjunction with inspection of the documents, to establish the privilege claimed.
4. The TDJV submits that if I have any doubt as to the privilege claim, I ought to exercise my discretion to inspect the documents. It was submitted that upon inspection, privilege will be readily demonstrated.
5. By its written submissions, the TDJV proposed that I should inspect and determine the claims of privilege by reference to sample documents. However, this proposal was withdrawn by counsel at the commencement of the hearing. Rather, the TDJV asks the Court to inspect all of the documents claimed to be privileged.
6. Siemens challenges the privilege on the grounds that the TDJV has failed to adduce sufficient evidence to establish the privilege claimed. Siemens agrees that the TDJV has failed to discharge its onus for establishing privilege. Save in respect of a small number of documents, Siemens submits that the evidence does not provide a sufficient basis to make an assessment as to privilege, and that accordingly, I should not exercise the discretion to inspect the documents.
7. In Schedule B, Siemens provides submissions as to the insufficiency of the evidence adduced with respect to each of the documents. The TDJV responded to these submissions orally by reference to its 'aide to Schedule B to Siemens' submissions', which categorises Schedule B into 12 issues.
8. In particular, Siemens argues that the evidence lacks the requisite specificity and focus to establish privilege where:

(a) the TDJV has not led any evidence from Mr Krsticevic which specifically addresses the documents; and

(b) where the TDJV has not led evidence in relation to the basic nature of the documents, such as their author, recipient, title, or topic.

1. In addition, Siemens challenges the sufficiency of the evidence on the basis that Mr Krsticevic is not the appropriate person to give evidence. This is articulated in two ways:

(a) firstly, where Mr Krsticevic is not the author of or a party to the communication, such that his assertion of another's purpose is inadmissible opinion evidence; and

(b) secondly, on the basis that Mr Krsticevic is not able to give evidence as to the purposes of the joint venture. It was submitted that the relevant purposes of the TDJV were that of its Steering Committee. Siemens argued that Mr Krsticevic was not a member of the Steering Committee at the relevant time, and that his role as legal counsel for only one of the joint venture parties did not qualify him to give evidence as to the purposes of the TDJV. In this regard, Siemens relied upon Perry v Powercor and the statements of Robson J regarding the need to identify corporate purposes.[35] Robson J found that hearsay evidence from legal counsel as to the purposes for commissioning an expert report was insufficient in circumstances where she had been instructed by the chief executive officer to retain the expert. Powercor failed to adduce evidence from its chief executive officer as to his purposes for instructing legal counsel to commission the expert report. By reason of this failure, the Court drew an inference that his evidence would not have assisted Powercor's claim to privilege.[36]

1. With respect to the privilege claims maintained in relation to the Incident (Categories 4 and 5, and their Category 7 attachments), Siemens argues that there is insufficient evidence as to the dominant purpose of the documents and communications being for the TDJV to be provided with legal advice and services. In particular, this argument was made in respect of materials relating to the experts retained in the aftermath of the Incident, and documents concerning the Claims Taskforce formed by the TDJV following the Incident.[37] Through its chronology and the contemporaneous documents referred to therein, Siemens argued that there were a range of commercial and legal requirements for the TDJV to investigate the Incident irrespective of its desire to obtain legal advice or receive legal services in relation to any anticipated litigation. Siemens says that, absent explanation as to how the TDJV fulfilled its commercial and operational needs to investigate the Incident without the materials over which privilege is claimed, the Court should not be satisfied that their dominant purpose was for legal advice or legal services. For documents related to two of the experts retained in connection with the Incident, Delmech Engineering Pty Ltd (Delmech) and Driver Trett, Siemens argued that any privilege had been waived by the TDJV's conduct.
2. In respect of the claims for s 119 litigation privilege (Categories 3 and 5), the TDJV relies upon the finding in my First Ruling that the Incident was of such a nature that litigation would follow according to the ordinary course of human affairs, giving rise to litigation privilege in the Category 5 documents.[38] The Cable Issue was said to be of a similar nature, such that litigation was also anticipated in relation to the Category 3 documents.
3. Siemens says that the requirement that there be anticipated proceedings as at the date of the communication or document has not been met. In relation to the litigation privilege claimed in respect of the Cable Issue (Category 3), Siemens says that the evidence amounts to the existence of a dispute, but does not extend to identifying that litigation was, in fact, anticipated. In relation to the litigation privilege claims relating to the Incident (Category 5), Siemens acknowledges that the Incident may be of such a nature that litigation may have been a possibility, but argues that this does not remove the need for the TDJV to adduce evidence that particular communications or documents were for the dominant purpose of that anticipated litigation, particularly having regard to the TDJV's commercial need to investigate the Incident.
4. In addition, Siemens raises particular arguments with respect to the Category 1 and Category 7 documents that appear to be technical documents, such as work plans required to repair the cable.[39] That is, the claims for privilege identified in [34] and [35] of Krsticevic 3. Siemens submitted that communications and documents going to these technical issues do not fall within s 131, even if they occurred against a background of without prejudice discussions. Siemens argues that they are not directly connected with an attempt to negotiate settlement of a dispute, in the manner discussed in GPI Leisure v Yuill.[40]
5. With respect to the Category 7 documents for which s 131 privilege is claimed, Siemens submitted that documents attached to a without prejudice communication do not become privileged merely by reason of being attached to that communication. Siemens argued that to sustain privilege, the TDJV must adduce evidence that the attachments themselves are privileged.[41]

1. As set out in the List of Disputed Documents, I have determined that:

(a) the TDJV has failed to adduce sufficient evidence to sustain the privilege claimed in respect of 97 documents, and I decline to exercise the discretion to test and scrutinise the documents; and

(b) for the remaining 48 documents, there is sufficient evidence to sustain the privilege claimed. On 7 July 2022, I directed that the TDJV provide these documents to the Court for inspection, so that the privilege claims may be tested and scrutinised. Following inspection, I am satisfied that 46 of these documents are privileged in part or whole, and that the remaining two documents are not. I do not consider that privilege has been waived in the documents that I have inspected.

1. For the remaining 19 documents on the List of Disputed Documents, no decision is required due to the documents either being produced to the TDJV on the day of the hearing,[42] or by reason of Siemens not challenging the privilege claimed.[43]
2. As the List of Disputed Documents sets out short reasons in relation to each document, the reasons in this ruling will be brief, and confined to the following topics:

(a) the significance of specific references to the documents in Krsticevic 3;

(b) the s 131 claims for negotiation privilege in respect of the repair works referred to at [34] and [35] of Krsticevic 3 (Categories 1 and 7);

(c) whether there was anticipated litigation in respect of the Cable Issue (Category 3);

(d) in respect of the ss 118 and 119 claims in relation to the Incident (Categories 4 and 5 and their Category 7 attachments), the issues of dominant purpose of the documents and the existence of anticipated litigation; and

(e) privilege claims in respect of documents inspected by the Court.

1. The manner in which the TDJV have prepared its evidence in support of its privilege claim is unconventional.
2. Mr Krsticevic gives evidence as to the nature of the Cable Issue,[44] and the Incident.[45] He then gives general descriptions of the advice and legal services received by the TDJV and the roles of its internal and external lawyers.[46] For certain of the types of advice and services, Mr Krsticevic footnotes in his evidence to document IDs of documents which are described as 'examples' of the advice.
3. By way of example, at [29], Mr Krsticevic states that MinterEllison provided the TDJV with legal advice in relation to the Cable Issue, and that this extended to the conduct of settlement negotiations with Nexans Olex (at [29(a)]), advice and assistance in the conduct of settlement negotiations with Aquasure and the State (at [29(b)]), advice on the terms and manner of engagement of experts in relation to the Cable Issue (at [29(c)]), advice on the potential legal consequences of the Cable Issue and how to manage them (at [29(d)]), and assistance with the insurance claim negotiations and provision of information between the TDJV and its insurers' lawyers (at [29(e)]).
4. With respect to some but not all of these categories of advice, by way of footnotes, Mr Krsticevic identifies by document ID examples of documents which fall into these categories. For example, footnote 6 to [29(b)] simply says '[f]or example, THI.0001.0001.9972, THI.1001.0017.7709'. No information is given by Mr Krsticevic as to what these two documents are, or who authored or received them.
5. The TDJV's Schedule and MK-6 do not provide information as to the nature of the documents, their author, recipient, title or topic. Rather, these documents simply list the document IDs of the disputed documents, their date, any source document, whether privilege is claimed in part or full, and the document ID of any duplicates.
6. There are 86 documents that are not specifically referred to in the body or footnotes of Krsticevic 3. The sole reference in the evidence to these documents is their inclusion in MK-6. Some documents are also included in Exhibit MK‑7 to Krsticevic 3, being a list of documents for which Mr Krsticevic says the s 131 privilege is jointly held with Nexans Olex (MK-7).[47]
7. Had Siemens not prepared Schedule A, the Court would not have had the benefit of the available metadata for the disputed documents. For some, but not all of the documents, Schedule A provides the document title, author, and recipient of the disputed documents. This provides some objective evidence as to the nature of these documents, and other information which may assist in establishing the privilege claims, such as the author and recipients of the documents. For 33 documents of the documents not specifically referenced to in Krsticevic 3, there is no metadata set out in Schedule A, and thus no evidence adduced about the nature of these documents whatsoever (other than their inclusion in MK-6 and, in some cases, MK-7).
8. The TDJV's counsel submitted that the sufficiency of Mr Krsticevic's evidence needs to be evaluated in its fair context, which it says includes the fact that the claim for privilege is for a very small percentage of the documents discovered by the TDJV.[48] I do not consider the proportion of a party's discovery over which privilege is to be claimed to be relevant to the question of whether the evidence is sufficient to sustain the privilege claimed.
9. Conversely, the TDJV argued that fair context includes the large number of documents claimed to be privileged, and submitted that the TDJV should not be criticised for adducing evidence in an efficient manner, having regard to their responsibility to conduct the litigation cost effectively.[49] Whilst efficiency is something to be promoted, in my view, the question of whether a party has adduced evidence to provide a sufficient basis for its claim ought not to be influenced by the volume of documents over which privilege is claimed. The evidence adduced to sustain each claim for privilege must be reviewed and assessed.
10. In my view, where the TDJV has not adduced evidence which specifically addresses the documents, the evidence of Mr Krsticevic amounts to an assertion that the documents are in particular privilege categories, unsupported by objective evidence as to the nature of the documents or the purpose for which they were created. The general evidence as to the nature of the Cable Issue and the Incident, and the description of the different privilege categories in [6] of Krsticevic 3, do not provide sufficiently focussed and specific evidence from which the Court may assess the claims for privilege. That is, there is no objective information from which it might be assessed whether communications or documents were made in connection with an attempt to negotiate a settlement of a dispute (where s 131 privilege is claimed), or for the dominant purpose of legal advice or legal services (where s 118 or s 119 privilege is claimed).
11. In order for the TDJV to sustain its claim for privilege, it is relying upon the Court to exercise its discretion to inspect these documents, as this will provide the only manner by which the Court will be provided any objective information about the documents.
12. In my view, given the failure of the TDJV to provide a sufficient basis for the Court to make an assessment as to the privilege claimed, it would be improper for me to exercise the discretion to inspect the documents. To do so would give rise to unfairness to Siemens of the nature described by Brereton J in Hancock v Rinehart.[50]
13. For those documents that I have determined to inspect, I am satisfied that there is evidence to sustain the claims of privilege based on the evidence of Mr Krsticevic, in conjunction with review of the available metadata for the documents, and inspection of redacted versions of the documents contained in Siemens' Schedule B bundle. By way of summary:

(a) in the case of documents for which s 131 settlement negotiation privilege is claimed, there is specific evidence from Krsticevic 3 at [29(a)(ii)] and/or [29(a)(iii)]. This evidence identifies that each of the documents comprise examples of advice and assistance provided by MinterEllison in the conduct of settlement negotiations with Nexans Olex; and

(b) in the case of documents for which s 118 privilege is claimed in relation to the Cable Issue (Category 2), and the Incident (Category 4 and their Category 7 attachments), for the majority of documents, there is evidence in Krsticevic 3 as to the purpose of the documents or communications, and the nature of the advice sought or obtained. In respect of a small number, whilst there is no specific reference in Krsticevic 3, for the reasons set out in the List of Disputed Documents, I consider it appropriate to exercise my discretion to inspect the documents.

1. For a number of documents that I have determined to inspect, Siemens criticises Mr Krsticevic's evidence by reason of it being hearsay. However, I am satisfied that Mr Krsticevic's evidence as to his role in the TDJV, and his involvement in the TDJV's response to the Cable Issue and the Incident, provides sufficient foundation for the hearsay evidence given.
2. There are instances where specific reference is made to documents in Mr Krsticevic's evidence, but I have determined that privilege has not been established, and that it is not appropriate for me to inspect the documents. The reasons for doing so are set out in the List of Disputed Documents, and the balance of these reasons to the extent that they concern the Category 1 and Category 7 repair works, and the Category 3, 4 and 5 documents, is set out below.

1. It appears from the available metadata that a number of the Category 1 and Category 7 documents may be documents and emails addressing investigation and repair works that formed part of a settlement with Nexans Olex, as referred to in [35] of Krsticevic 3. I say 'may be' because Mr Krsticevic's evidence does not identify any specific documents which meet this description.
2. The description of the dispute with Nexans Olex at [24(a)] of Krsticevic 3 simply states that there was a dispute as to how the Cable Issue 'ought to be rectified'. This description does not provide any information about what the dispute was between the parties with respect to rectification of the Cable Issue.
3. The further information provided in [34]-[35] of Krsticevic 3 is pitched at a level of generality that does not satisfactorily bridge the information gap. At [35], Mr Krsticevic states that technical investigations into the Cable Issue and proposed repair methods were required, and that communications on these documents 'fall within Category 1'. However, it is left largely unexplained how this technical investigation is connected with the 'attempt to negotiate' the settlement of the dispute concerning rectification. Common sense dictates that technical investigations in relation to the Cable Issue would be required whether or not the parties were attempting to negotiate settlement of a dispute. The evidence at [34] of Krsticevic 3 provides some context, but absent explanation as to nature of the dispute between the parties and the manner in which it was resolved, it remains unclear how technical investigations are connected to the negotiation between the parties.
4. In any event, the global statements in [34]-[35] of Krsticevic 3 do not enable determination of to what extent any particular communication or document addressing investigation or repair methodology is in connection with an attempt to negotiate a settlement, and which, for example, concerns technical matters, rather than negotiation.
5. Similarly, the assertion at [63] of Krsticevic 3 that the privilege is jointly held with Nexans Olex, and listing the documents on MK-7, does not provide objective evidence from which the Court may assess the claim for privilege.
6. A number of the documents include the words 'without prejudice' or similar in their document titles, or the text of the documents. Whilst this may evidence the subjective view of the author of a document or communication, the label 'without prejudice' is not determinative. Objective evidence as to the nature of the dispute and the negotiations is required, and for the reasons explained above, has not been adduced with adequate specificity by the TDJV.
7. A number of the documents are attachments to emails, where the emails themselves are not subject to a claim of privilege. I infer from this that the documents are asserted to be privileged under s 131(1)(b) as documents prepared in connection with an attempt to negotiate a settlement. However, in each case, there is no evidence adduced as to why these particular documents were prepared and whether their preparation was in connection with an attempt to negotiate a settlement.
8. For the Category 7 documents, the TDJV asserts privilege solely on the basis of the documents being attachments to Category 1 documents, to which s 131 privilege is asserted to apply. I have determined that the TDJV has failed to establish that the hosts to these Category 7 documents are privileged under s 131. Accordingly, the TDJV's claim that the Category 7 documents are privileged under s 131 by reason of their host documents fails.
9. Further, and in any event, I agree with Siemens' submissions that a finding that a communication is privileged under s 131(1)(a) does not extend to its attachments, unless those attachments are themselves privileged under s 131(1)(b).[51] In reply, the TDJV's counsel did not quibble with this proposition.[52] No evidence has been adduced by the TDJV with respect to the preparation of any of the Category 7 documents in respect of which s 131 privilege is claimed. I have reviewed the objective evidence available from document metadata, and in each case, the evidence available does not assist in determining whether the documents were prepared in connection with an attempt to negotiate a settlement of a dispute. As such, there is insufficient evidence to establish privilege under s 131(1)(b) with respect to the Category 7 documents.
10. Given the paucity of the evidence adduced, I decline to exercise my discretion to inspect the documents.
11. If I were to exercise the power to inspect the documents, there is insufficient context or submissions for me to ascertain whether any of these documents were prepared, or were communications sent, in connection with an attempt to settle a dispute. The TDJV has not adduced sufficient information as to the terms of settlement, or the investigation and repair methodology referred to in [35] of Krsticevic 3. If the documents address technical details, as the document title of many of the documents seems to suggest, given that no evidence has been adduced with respect to the technical details, nor their role in the settlement (other than in the most general terms), inspection by the Court will not shed any light on whether s 131 privilege has been properly claimed.

H Category 3 - Cable Issue anticipated litigation

1. The TDJV claims four documents to be the subject of litigation privilege in connection with the Cable Issue (Category 3). The Cable Issue is described at [22]‑[23] of Krsticevic 3 as an issue regarding the damaged cable joints for the underground electricity cables running between the Cranbourne Terminal Station and the desalination plant.
2. The Cable Issue disputes are outlined at [24] of Krsticevic 3:

As a consequence of the Cable Issue, disputes arose between:

(a) the TDJV and Nexans Olex who designed, supplied and installed the cable joints, as to who was responsible for the Cable Issue and how it ought to be rectified;

(b) the TDJV and Aquasure as to who was responsible for the Cable Issue and how it ought to be rectified; and

(c) the TDJV and its insurers regarding insurance coverage for any liability in respect of the Cable Issue.

1. Mr Krsticevic's evidence concerning the Cable Issue is largely directed to the claims for settlement negotiation privilege under s 131 (Category 1 and their Category 7 attachments). A specific reference to the TDJV being provided with legal services (as opposed to advice) is made in [31] of Krsticevic 3, where he deposes to experts having been briefed by MinterEllison in order to assist MinterEllison to provide legal services relating to the resolution of the Cable Issue disputes. However, no specific documents are identified in this paragraph of Krsticevic 3.
2. In order for s 119 privilege to be enlivened, there must be 'a real prospect of litigation, as distinct from a mere possibility'.[53]
3. The information provided in Krsticevic 3 as to the Cable Issue and the associated disputes makes no reference to litigation being contemplated by the TDJV or by the parties with which it was in dispute. Nor does it provide sufficient information about the Cable Issue or their severity. The issue is described at [23] of Krsticevic 3 as being that 'a number of the cable joints had deflected, cracked, deformed or been crushed'. The impact of this issue is not described. Accordingly, there is insufficient evidence as to the severity of the event from which to infer that litigation might follow in the ordinary course.
4. Accordingly, I find that there is insufficient evidence to establish litigation privilege in respect of the Category 3 documents, and given the lack of evidence, I decline to exercise the discretion to inspect these documents.

(a) three experts retained in respect of the Incident, being Arcadis, Delmech and Driver Trett;[54] and

(b) the Claims Taskforce formed by the TDJV in the week commencing 20 February 2017, following the Incident in December 2016. Mr Krsticevic says that it was formed for the purpose of gathering information to provide to Clyde & Co to assist it in advising on, and preparing claims and defences in respect of, the Incident and the Cable Issue.[55]

1. First, I will address the claims for litigation and advice privilege in respect of:

(a) documents generated by the three experts for which privilege is claimed under s 118(c) and/or s 119(b); and

(b) communications with the experts, which are claimed to be privileged under s 119(a).

1. In my view, the evidence of the TDJV with respect to the retainer of the three experts is wholly deficient, and cannot sustain a claim for privilege under s 118 or s 119 of the Evidence Act.
2. Mr Krsticevic refers to the 'retention and briefing of experts to establish the facts upon which advice on liability could be given',[56] and identifies the names of the experts retained by one or both of MinterEllison and Clyde & Co.[57]
3. No evidence is adduced by the TDJV as to:

(a) who determined that Arcadis, Delmech and Driver Trett should be retained;

(b) the terms of their retainer;

(c) the questions on which they were asked to opine or investigate;

(d) the particular expertise of Arcadis, Delmech and Driver Trett, other than Delmech, which is described to be an 'engineering consultancy',[58] and a copy of its 'Root Cause Analysis' Report which has been adduced;[59] or

(e) how their work informed the legal advice and services to be given by MinterEllison and/or Clyde & Co.

1. No evidence is adduced from the solicitors who retained the experts as to their purposes for retaining them, and the interrelationship with the legal advice or legal services given to the TDJV.
2. It might be inferred that when providing advice as to the legal consequences of a technical failure such as the Incident, lawyers will require the assistance of technical experts. However, absent retainer letters or other information about the purpose of the retainer, there is no objective evidence from which the Court may determine whether these reports would not have been necessary absent the need for legal advice or anticipated litigation.
3. In my view, the failure of the TDJV to adduce evidence addressing some or all of the above matters is fatal to its claim for privilege in respect of the work product of, and communications with, Arcadis, Delmech and Driver Trett. The Court has not been provided with evidence from which an objective determination may be made as to what was the purpose of the documents and communications, let alone the dominant purpose.
4. Further, I agree with Siemens' submissions that following the Incident, the TDJV had a range of purposes for which investigation of the Incident was required with the benefit of expert assistance.[60] One purpose may have been in order to obtain legal advice or services in anticipation of litigation, but it is clear that investigation of the Incident with the benefit of expert assistance was also required for a number of commercial and operational purposes. Those commercial purposes included responding to requests for information by Aquasure, the Minister and the TDJV's insurers, responding to defect notices, facilitating the re-energisation of the desalination plant, rectifying damage, internal reporting requirements to the officers of Thiess and Suez and assessing future risks.
5. Similar to Perry v Powercor and Liesfield v SPI, the TDJV has failed to explain to the Court how the TDJV met its commercial purposes for investigating the Incident separate from the expert reports and related communications over which privilege is claimed.
6. The TDJV's failure to adduce sufficient evidence as to the dominant purpose of the expert retainers is surprising, having regard to the similar criticisms I made of the evidence adduced with respect to the Tractebel reports addressed in the First Ruling.[61]
7. The TDJV's counsel accepted the weight of Siemens' written submissions made with respect to the purpose of the Delmech retainer and report, but sought to distinguish the position of Driver Trett.[62] Counsel drew attention to the fact that almost all of the contemporaneous documents referred to by Siemens on the question of purpose addressed Delmech, and did not concern Driver Trett. Counsel also referred to the further evidence adduced by the TDJV with respect to the Driver Trett engagement, namely, the appointment of Mr Duggan of Driver Trett to the Claims Taskforce and the further evidence as to Driver Trett's role as set out at [48] and [52]-[57] of Krsticevic 3.
8. I do not accept that the position of Driver Trett can be distinguished in this way.
9. Whilst further context is provided with respect to Driver Trett's role, this evidence fails to provide objective evidence from which dominant purpose may be established. Mr Krsticevic states that Driver Trett was retained to prepare a 'claims analysis', and that this was a 'necessary precondition' to the legal advice to be provided by Clyde & Co.[63] However, without explanation and objective evidence regarding Driver Trett's expertise, and the purpose of its retainer, this additional context does not assist in bridging the evidential gap.
10. Further, the contemporaneous documents that I was taken to by Siemens addressed the multiple purposes for which the Incident required investigation. Whilst many of these documents addressed Delmech in particular, this does not detract from the fact that it established the multiple purposes for which the TDJV required the Incident to be investigated. The TDJV has failed to explain how it addressed the non-privilege purposes for the investigation, absent the material over which privilege has been claimed.
11. In my view, the TDJV has not adduced sufficient evidence to establish the dominant purpose of the retainers of Arcadis, Delmech or Driver Trett, whether that purpose be for legal advice (Category 4, s 118 claims) or legal services relating to anticipated proceedings (Category 5, s 119 claims).
12. Without the benefit of information about the nature of the expertise and retainer, the advice that these experts were engaged to prepare and how that advice informed the TDJV's solicitors for the purpose of their advice and legal services to the TDJV, and the means by which the TDJV addressed its commercial purposes for investigating the Incident, I will not be in a position to assess the claim of privilege upon inspection of the documents. Accordingly, I decline to exercise my discretion to inspect these documents.
13. As I found in my First Ruling, the Incident was a significant event warranting investigation, rectification and consideration of the TDJV's liability. The nature of the Incident was such that litigation is inherently likely according to the ordinary course of human affairs.[64] However, this does not detract from the need to adduce evidence that the dominant purpose of the communications and documents was in connection with the anticipated litigation. Whilst litigation might have been an objective possibility, the Court still needs to be satisfied that each document or communication over which s 119 privilege is claimed was prepared for the dominant purpose of that anticipated litigation. Given the multiple purposes for investigating the Incident, the need for focussed and specific evidence is all the stronger.
14. The TDJV has failed to adduce evidence of this kind. Rather, the evidence is focussed upon the formation of the Claims Taskforce, which Mr Krsticevic says was established for the dominant purpose of the TDJV receiving legal services in connection with anticipated litigation.[65]
15. However, this is the only evidence adduced as to the purpose of the Claims Taskforce. No constitutional or other documents are adduced to identify the purposes or activities of the Claims Taskforce, so as to provide objective evidence as to its purpose.
16. The criticisms regarding the TDJV's failure to explain how it met its commercial needs for investigating the Incident absent the experts retained equally apply to the Claims Taskforce. Siemens' chronology documents indicate that the Claims Taskforce had purposes in addition to any privileged purpose of providing information to Clyde & Co to enable legal services to be provided by it to the TDJV. For example:

(a) THI.0001.0001.4159 is an email chain containing two emails dated 9 and 14 June 2017 with the subject line 'VDP - Background information' circulated amongst the members of the Claims Taskforce. The emails are from Mr Lemmin-Woolfrey, a member of the Claims Taskforce, and the chief internal investigator.[66] The email asks questions as to the factual background relating to the removal of the links, and states 'I am convinced that a little background digging we can better formulate the history which may give us a better picture for decision making'. The investigative nature of the email sent nearly six months after the Incident, and the reference to 'decision making' appears to indicate that the Claims Taskforce was tasked with informing the TDJV for its decision making, rather than to solely gather information for Clyde & Co; and

(b) the documents indicate that the TDJV and the Claims Taskforce used the word 'claim' to refer to contractual payment claims, defect notices and insurance claims, rather than legal proceedings within the meaning of s 119. Examples of these are listed in Siemens' written submissions (at [120]). One of which is Mr Taylor's memoranda to the TDJV Steering Committee dated 18 January 2018 [THI.0001.00001.5011], more than 12 months after the Incident. This document is an example where the word 'claim' is used with respect to defects and insurance claims. This document also refers to 'formal recovery proceedings' having been filed against Siemens, which appears to be a reference to litigation, which was commenced in December 2017.

1. The TDJV has not adduced any evidence as to its insurance claim procedures, how it obtained information necessary to make a claim, or what information it needed in order to make a claim. Similarly, no evidence is adduced with respect to the work necessary for responding to defect notices issued under its contractual arrangements, and how this was done without the expert assistance given by Arcadis, Delmech and Driver Trett.
2. In light of this, it is not possible to determine that the predominant activity of the Claims Taskforce was to provide information to Clyde & Co so that it may provide legal services to the TDJV in relation to anticipated litigation.
3. Regardless of whether Mr Krsticevic is in a position to give evidence with respect to the corporate purposes of the TDJV in relation to the retainer of Arcadis, Delmech and Driver Trett, or the purpose of the Claims Taskforce, I am not satisfied that the dominant purpose for these documents was for the TDJV to be provided with professional legal services relating to anticipated litigation.
4. Given the deficiency in the evidence, I decline to exercise my discretion to inspect the Category 5 documents. Without the benefit of explanation from the TDJV as to how it satisfied its commercial purposes for investigating the Incident, and focussed and specific evidence as to the relationship between particular documents and the anticipated litigation, inspection will not shed any light on the dominant purpose of any of the communications or documents.

1. On 7 July 2022, I directed that the TDJV produce 48 documents that I determined to inspect to test and scrutinise the privilege claimed. These documents are identified in the column entitled 'Ruling' in the List of Disputed Documents as 'Inspect s 131' and/or 'Inspect s 118'.
2. My ruling following inspection is set out in Column S of the List of Disputed Documents entitled 'Ruling Following Inspection'.
3. In respect of 46 of the inspected documents, I am satisfied that they are privileged. Where s 118 privilege has been claimed, inspection supports the TDJV's claim that they are documents prepared or communications sent for the dominant purpose of lawyers providing the TDJV with legal advice in connection with the Cable Issue or the Incident. Where s 131 privilege is claimed, inspection supports the TDJV's claim that they are communications or documents prepared in connection with an attempt to negotiate settlement of a dispute related to the Cable Issue.
4. For three of the documents inspected,[67] Siemens argued that privilege had been waived by reason of the TDJV disclosing the Delmech report to Aquasure, and by the TDJV's expert, Mr Gerbert, relying upon the Delmech report to form his conclusions. Siemens argued that this conduct by the TDJV was inconsistent with the maintenance of privilege, and that therefore, privilege had been waived under s 122 of the Evidence Act. Alternatively, Siemens argues that privilege has been waived under s 126 of the Evidence Act as associated material which is necessary for the proper understanding of the Delmech report.
5. In my view, privilege has not been waived. None of the three privileged documents concern the content or conclusions of the Delmech report. I therefore do not consider that provision of the Delmech report to Aquasure and reliance upon the Delmech report by the TDJV's expert is conduct of the TDJV which is inconsistent with the maintenance of privilege. Nor are the privileged materials reasonably necessary to enable proper understanding of the Delmech report.

1. Subject to hearing from the parties as to the appropriate orders in consequence of these reasons, I will make orders requiring:

(a) the TDJV to produce to Siemens the documents identified in the List of Disputed Documents where privilege has not been established, without redaction for privilege; and

(b) the TDJV to pay Siemens' costs of this application on a standard basis, to be taxed if not agreed.

1. I direct that the parties provide an agreed form or order to my chambers by no later than 12 pm on Thursday, 14 July 2022. If agreement is not reached, I direct the parties to provide competing orders by this time, together with short submissions of no more than three pages addressing the remaining matters in dispute.
2. Lastly, I wish to express my regret for the time taken for this ruling to be delivered. I thank the parties and their advisors for their patience.

[1] Aquasure Pty Ltd v Thiess Pty Ltd & Ors [2021] VSC 525.

[3] The TDJV filed two affidavits of Mr Krsticevic on 21 June 2021 and 8 July 2021, as referred to in the First Ruling [6].

[6] Siemens' written submissions [17].

[7] An updated version of Schedule B was provided to the Court on 15 November 2021.

[8] Transcript of Proceedings, Aquasure Pty Ltd v Thiess Pty Ltd & Ors (Supreme Court of Victoria, S ECI 2018 02258, Steffensen JR, 17 November 2021) 5-6 (17 November 2021 Transcript).

[9] An updated version of Schedule C was provided to the Court on 8 November 2021.

[10] This column has been edited with respect to Category 7 documents to identify the category of their hosts.

[11] [2011] VSC 308.

[12] Ibid [71]-[77]. Robson J's decision was upheld on appeal: Powercor Australia Ltd v Perry [2011] VSCA 239; (2011) 33 VR 548.

[13] [2014] VSC 348.

[15] Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332, 341 [19].

[17] AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30, 45 [44] (Young J).

[18] (1997) 188 CLR 501, 513-4 (Brennan CJ).

[19] As explained by Rees J in Re Global Advanced Metals Pty Ltd [2019] NSWSC 1545, [16]-[17], the decision in AFP v Propend concerned an appeal of a decision handed down prior to the enactment of the Evidence Act 1995 (Cth), and in any event, was a final decision and was not interlocutory in nature.

[20] Kong v Kang [2014] VSC 28, [62] (Derham AsJ) (Kong).

[21] Slea Pty Ltd v Connective Services Pty Ltd [2017] VSC 232, [20] (Almond J).

[22] Field v Commissioner for Railways (NSW) [1957] HCA 92; (1957) 99 CLR 285, 292 (Dixon CJ, Webb, Kitto and Taylor JJ).

[23] GPI Leisure Corporation Ltd (in liq) v Yuill (1997) 42 NSWLR 225, 226 (Young J) (GPI Leisure v Yuill); Kong (n 20) [63].

[24] Biovision 2020 Pty Ltd v CGU Insurance Ltd [2010] VSC 589, [52] (Judd J).

1. [25] Kong (n 20) [61], citing Davies v Nyland (1975) 10 SASR 76, [89]-[90] and Bentley v Nelson [1963] WAR 89.

[26] Seven Network Ltd v News Ltd [2006] FCA 343; (2006) 151 FCR 450, 459 [45] (Graham J).

[27] Hancock v Rinehart [2016] NSWSC 12 (Hancock v Rinehart), [31] (Brereton J); Mortgage Results Pty Ltd v Millsave Holdings Pty Ltd [2017] VSC 704, [74] (Derham AsJ) (Mortgage Results v Millsave).

[28] Esso Australia Resources v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49, 70 [52] (Gleeson CJ, Gaudron and Gummow JJ); Perazzoli v BankSA, a division of Westpac Banking Corporation Limited [2017] FCAFC 204, [104].

[29] See, eg. Mortgage Results v Millsave (n 27) [72].

[30] Tabcorp Holdings Ltd v State of Victoria [2013] VSC 302, [97]-[98] (Sifris J); Mortgage Results v Millsave (n 27) [24], [72].

[31] Hancock v Rinehart (n 27) [32] (citations omitted).

[35] Perry v Powercor (n 11) [50]-[53], [74].

[37] The Claims Taskforce is referenced in Krsticevic 3, [44] and discussed at [80(b)] below.

[39] Transcript of Proceedings, Aquasure Pty Ltd v Thiess Pty Ltd & Ors (Supreme Court of Victoria, S ECI 2018 02258, Steffensen JR, 16 November 2021), 105 (16 November 2021 Transcript).

[40] GPI Leisure v Yuill (n 23) 226 (Young J).

[41] Siemens' written submissions [139]-[141].

[42] THI.1001.0017.8862, THI.1001.0017.8874, THI.1001.0017.7815 (duplicated in THI.1001.0019.1205), THI.1001.0017.7919, THI.1001.0017.7306, and THI.0001.0001.4515.

[43] Siemens' counsel advised that Siemens does not challenge the privilege in respect of any document which is not listed in Siemens' Schedule B (17 November 2021 Transcript, 5‑6). The Court has identified 13 documents referred to in MK-6 that are not in Siemens' Schedule B: CPB.001.003.3817, THI.0001.0001.5915, THI.0001.0001.5927, THI.0001.0001.7023, THI.0001.0001.9336, THI.1001.0016.6297, THI.1001.0018.0468, THI.1001.0019.4077, THI.1001.0019.4084, THI.1001.0019.4085, THI.1001.0020.5681, THI.1001.0020.5689, THI.1001.0020.5696.

[46] Ibid [25]-[37] (Cable Issue), [40]-[59] (Incident).

[50] Hancock v Rinehart (n 27) [32].

[51] Siemens' written submissions [43(3)].

[52] 17 November 2021 Transcript, 20-21.

[53] See [21] above.

[55] Ibid [44]. Mr Krsticevic also states the Claims Taskforce related to the Cable Issue claims, however, this is not relevant to Categories 4 and 5.

[58] Mr Krsticevic's affidavit, filed 21 June 2021, [13].

[60] Siemens' written submissions [68], and the documents referred to therein.

[63] Krsticevic 3, [48], [52], [55].

[67] CPB.001.002.6462, CPB.001.002.6465 and THI.0001.0001.7043.