Plaintiffs/Defendants by counterclaim v Defendant/Plaintiff by counterclaim

2 The orders made by the judicial registrar included orders that the plaintiffs produce certain disputed documents sought under a subpoena ('the Aitkens subpoena') addressed to Aitken Partners Pty Ltd trading as Aitken Partners ('Aitkens') (as referred to in Schedule 1 to the Ruling). Aitkens were the solicitors for the plaintiffs from about April/May 2015. The judicial registrar otherwise ordered that an objection on the ground of legal professional privilege ('LPP') was upheld.[2]

3 The orders made on 22 May 2020 were made in consequence of an inspection of the disputed documents set out in Schedule 1, and the application of an earlier ex tempore ruling made by the judicial registrar on 11 February 2020 (described as the 'Issue Waiver Ruling').[3]

4 The appeal is an appeal de novo.[4] However, it became apparent at the hearing of the appeal that there are two primary issues for consideration:

• whether the plaintiffs waived LPP by reason of certain statements made in a witness statement of a Mr Robert Bradley dated 15 January 2020 ('the Bradley statement'). Mr Bradley is a principal of Aitkens. This in turn raised an issue as to whether the plaintiffs should be permitted to withdraw an earlier concession that there had been a waiver of privilege by reason of the filing of this statement; and
• if privilege had been waived, the scope of the waiver.

5 There was general agreement that the Court should not inspect documents at this stage, but ought to simply resolve the above points of principle having regard to the contents of the Bradley statement and the issues in dispute. If I determined something different from the judicial registrar as to the existence, or scope, of the waiver, an inspection might then be necessary.

6 There was also largely agreement as to the documents the Court was to have regard to, which included the documents constituting the two volumes of appeal book.[5] However, there remained a dispute about a chain of emails dated 18 May 2015 ('the May emails').[6] The May emails will therefore be dealt with as a separate issue.

7 This proceeding concerns a dispute between the plaintiffs and the defendant arising out of dealings between them in respect of the sale of land in Mount Duneed ('the Land') by the plaintiffs to the defendant.

8 The parties entered into a contract of sale in September 2008 ('the Original Sale Contract'). Settlement of the Original Sale Contract occurred in July 2015, and the defendant became the registered proprietor of the Land in August 2015. It was envisaged that the defendant would subdivide the Land.

9 The Original Sale Contract contained a special condition 13 ('SC 13') which gave the plaintiffs an option to buy back part of the Land ('the Option Parcel'), being a portion marked 'B' on an annexed plan and measuring approximately 10,775 m2, for $319,200. Thus SC 13.1 provided as follows:[7]

In consideration of the vendor executing this contract the purchaser grants to the vendor an option to purchase the land in accordance with the annexed Contract of Sale marked "A1" which shall be an area comprising approximately 10775 square metres which shall incorporate the existing dwelling on the land sold in accordance with this contract and having dimensions broadly in accordance with the sketch plan attached marked "B" ("the option land") but the parties acknowledge that the dimensions of the boundaries and area may vary to accord with the planning controls and in particular the Overall Development Plan and the physical constraints of the site. In the event the purchaser elects to buy back a reduced area of land then the value of the land will be $296,240.00 per hectare per 10,000.00 square metres and the vendor and the purchaser agree that the land will be subject to a final survey to determine the final price for purchase of the land which will be the consideration in the Contract of Sale marked "A1".

10 SC 13.3 envisaged the defendant obtaining a certified plan of subdivision and giving it to the plaintiffs. SC 13.4 then provided for the plaintiffs to exercise the option by the giving of notice. SC 13.5 provided that if the option to purchase the Option Parcel was exercised, the parties were then to execute a contract in the form annexed to the Original Sale Contract.

11 The plaintiffs say that they validly exercised the option contained in SC 13 on or about 23 August 2013.[8] They further say that a counterpart of this document was later executed by the defendant on or about 11 April 2014 which gave rise to an 'Option Contract'.[9]

12 The plaintiffs also allege that the Original Sale Contract had been further varied by a written variation agreement ('the Variation Agreement') whereby, inter alia, the defendant acknowledged that the plaintiffs had validly exercised the option.[10]

13 The plaintiffs sought specific performance of the Option Contract and Variation Agreement, such that the defendant transfer a parcel of land, or alternatively several parcels of land, which together substantially reflect the dimensions of the Option Parcel. Orders were also sought for the defendant to do all things necessary to procure a relevant plan of subdivision to achieve this result.

14 In the further amended defence and counterclaim, the defendant pleaded a range of defences. However, the key paragraphs for this application appear at paragraphs 3AA - 3E which included that:

3AA When signing the Original Contract, the plaintiffs and the defendant knew that creation of an allotment in the position and of the dimensions of the land the subject of the option (as came to be depicted in Annexure "B" to the Original Contract, being an allotment of approximately 10,775 square metres) may not be possible as it may not be approved by GGCC because it may prevent or restrict access to the land to the south of such allotment (Southern Parcel).

...

3AI In April 2015, the plaintiffs and the defendant prepared and gave to GGCC, a proposed 2-lot plan of subdivision intended to create a parcel of land of 4,334 square metres (on which the House is located) for the plaintiffs to buy back from the defendant in accordance with special condition 13 of the Original Contract (4,334m2 Plan), as a replacement for the 8,962m2 Plan.

...

3C On or about 31 August 2016, GGCC endorsed the Endorsed Plan which contains an allotment of 4,334 square metres as depicted in the 4,334m2 Plan.

...

3D By reason of the matters in paragraphs 3AA and 3C above, to the knowledge and with the consent of the plaintiffs and the defendant:

(a) the allotment of 4,334 square metres depicted in the 4,334m2 Plan became "the option land" within the meaning and for the purposes of clause 13.1 of the Original Contract (Reduced Parcel);

...

15 The defendant further counterclaimed for orders that the plaintiffs have no interest in any part of the Land with no right to remain.[11]

16 By way of reply and defence to counterclaim, the plaintiffs relevantly responded that:

10 As to paragraph 3AI they:

...

(c) say that it was never agreed by them that lot 2 as depicted on such version of plan of subdivision PS 718771T was to become the replacement Buy-Back land for the purposes of the Original Contract;

(d) say further that their intention at the time was that if version E1 of proposed plan of subdivision PS 718771T was approved by GGCC, lot 2 on the plan might become the replacement Buy-Back land if agreement were to be reached with the defendant as to amendments to the Option Contract and as to certain other arrangements between the parties in the nature of leases, a loan, a mortgage, and a guarantee.

...

14 They deny paragraph 3D and say:

(a) they have exercised the option given by special condition 13 of the Original Contract to them to acquire the Original Parcel (which is referred to in the amended statement of claim as "the Parcel");

(b) the Variation Agreement and in particular clause 7 confirms the exercise by them of the option to acquire the Original Parcel;

(c) they have entered into the Option Contract which gives effect to the exercise of the option to acquire the Original Parcel and provides for the sale of the Original Parcel to them;

(d) by reason of the matters alleged in paragraphs 14(a), (b) and (c) hereof they have elected for the purposes of special condition 13 of the Original Contract to purchase the Original Parcel and not any lesser area of land.

17 There is a lack of clarity in the pleadings. Thus, although it was not expressly pleaded, (and in fact was removed from an earlier version of the pleadings) it appears to be alleged by the defendant that the plaintiffs 'elected' to accept a reduced parcel. Paragraph 14(d) of the reply then denies such an allegation. In oral submission senior counsel described the plaintiffs as exercising an 'election' or 'choice' before the relevant authority could then be approached and satisfied, following which there could be the formal exercise of an option. This was because the defendant could only sell land which was recognised under the Transfer of Land Act 1958 (Vic).

18 The judicial registrar, however, took this 'election' as being also used interchangeably with the concept of a 'concluded agreement' as referred to in the Bradley statement, below. Again, then, though also not clear, the pleading appears to suggest that some agreed position was reached by August 2016 (with the 'knowledge and consent' of both parties as per paragraph 3D of the further amended defence). More specifically, paragraph 3AI (read with paragraph 10 of the reply) raises an issue as to whether any agreement was reached in April 2015. As will be seen below, the statement of Mr Costelloe (to which Mr Bradley responded) also suggested that some consensus was reached in April 2015.

19 The key issue before this Court and the judicial registrar was whether LPP had been waived based on certain statements made in the Bradley statement.

20 In order to assess this statement in context it is important to consider the contents of a statement of one of the plaintiffs, Vicki Bradford, dated 17 October 2019 ('the Bradford statement') as well as the statement of a Rory Costelloe, an executive chairman of the Villawood group of which the defendant forms a part, dated 4 December 2019 ('the Costelloe statement').

21 Thus, the Bradford statement asserts, inter alia, that:

• on 20 December 2014, the plaintiffs met at the site with Mr Costelloe and Ms Apted to discuss the transaction. Ms Bradford walked outside with Mr Costelloe who pointed out where Council could consider a road. Ms Bradford thought that certain maps given to her in May 2014 showed the proposed layout of the future option land (ie the house would face a street to the east and would include a corner block);[12]
• in February 2015, draft variations based on the meeting on 20 December 2014 were prepared by both sides but neither document was agreed or signed;[13]
• on 13 April 2015, there was another meeting, after which Mr Costelloe came to the plaintiffs' house 'to decide where the eastern boundary of a house block might be located'. Mr Costelloe was 'quite adamant as to exactly where a peg for the south-east corner should go'. Ms Bradford was not 'altogether happy with its placement', and she voiced these concerns to Mr Costelloe;[14]
• a plan of subdivision was subsequently drawn showing an area of 4,334 m2;[15] and
• whilst the plaintiffs had agreed with Mr Costelloe as to a possible alignment of the east boundary of their house block, there remained 'many concerns'.[16]

22 The Costelloe statement, in response, asserts in summary:

• at the meeting on 20 December 2014, the plaintiffs said they would accept a lot of around one acre. There were no discussions about a road;[17]
• in early to mid-January 2015, Mr Costelloe instructed a Mr East to prepare a plan to create a house lot of about one acre, as agreed with the plaintiffs at the meeting on 20 December 2014;[18]
• the plaintiffs instructed Mr Costelloe to progress the application for the one acre subdivision, but the parties continued to negotiate other potential amendments to the original contract in the event that Council did not agree to the subdivision;[19]
• on 13 April 2015, Mr Costelloe met with the plaintiffs to finalise the process of delineating the house lot. The plaintiffs chose the location of the boundary points. They told Mr Costelloe that they were happy with those boundaries and did not voice any concerns;[20] and
• on 17 April 2015, Mr Costelloe sent Ms Bradford a plan of subdivision depicting a home lot of 4,334 m2. Ms Bradford responded that 'That is the exact boundaries that we decided upon on Monday 13th'.[21]

23 The Bradley statement was then filed on 16 January 2020. The key relevant paragraphs ('the relevant paragraphs') were:

1. At no stage did my initial instructions from the Plaintiffs, or indeed Ms Apted, indicate that there was a concluded agreement made on or about 13 April 2015 between the Plaintiffs and the Defendant for the Plaintiffs to accept a reduced area of land in full settlement of their entitlements. Rather

(a) the Plaintiffs thought there may have been an agreement reached at a 'without prejudice' meeting in December 2014 but when the parties endeavoured to produce documents to record such an agreement it became apparent that there was no agreement, and

(b) the Plaintiffs were prepared to consider a lesser area in April 2015 as part of a package including a number of other components such as a lease of adjacent areas, a sale of the remaining option land and confidence that the plan as discussed would be approved - however it seemed like approval was not obtainable. (In June 2015 we were also to learn, see paragraphs 13 & 14 below, that the parties had not agreed on another important matter, namely the configuration of the other lots comprising the remainder of the Option or Buy-Back Land because the Plaintiffs' expectation was that any lesser area would be a corner block- consistent with plans drawn by Mesh in June 2014 which had been provided to them.)

...

1. Consistent with the Plaintiffs' instructions I sent a draft Variation document by email to Robertson Hyetts [the solicitors who had acted for the Defendant in respect of the subject transactions] on 17 June 2015...

1. I formed the opinion that the information provided by Mr Kearns did not reflect an accurate statement of the additional value to the Plaintiffs of what was being offered because:

(a) it included costs that the Defendant was already obliged to bear; and

(b) omitted the value of additional benefits being offered such as the lease of neighbouring paddocks.

I forwarded the spreadsheet email to my clients on 25 September 2015, advising of these concerns and seeking instructions. The Plaintiffs instructed me not to discuss any compromise until the endorsed plans were amended.

24 At the first hearing the defendant submitted that the evidence adduced to that date did not establish the LPP claim; further that, if the documents were privileged, the privilege had been waived based on the relevant paragraphs in the Bradley statement.

25 The plaintiffs conceded that there had been a waiver of privilege in respect of the initial instructions given to Mr Bradley in respect of paragraph 5 of the Bradley statement. However, the defendant contended that the waiver was broader than that, and that any documents which touched on the issue had been waived. The plaintiffs further conceded there was waiver in respect of paragraphs 14 and 22 and the scope of that waiver was not disputed by the defendant.

26 The judicial registrar then made a ruling ex tempore, the 'Issue Waiver Ruling', which relevantly:

• rejected that the entirety of the Apteds or Aitkens files were the subject of waiver;
• accepted the plaintiffs' concession that privilege was waived in respect of the instructions to prepare and send the document referred to in paragraph 14 of the Bradley statement;
• in respect of paragraph 22, she noted the plaintiffs' concession that there was a waiver in respect of the plaintiffs' instructions not to discuss any compromise until the endorsed plans were amended (but noted that she would hear further submissions if needed);
• concluded as follows in respect of paragraph 5:

In my view privilege has been waived in respect of the issue of whether there was a concluded agreement made on or about 13 April 2015 to accept a smaller parcel of land, and in respect of any election by the plaintiffs to accept a smaller parcel of land.' (in circumstances where 'election' and 'concluded agreement' were both used interchangeably).

27 In the (later) Ruling of 7 May 2020, she also clarified that the waiver arose as a result of paragraph 5 of the Bradley statement; not as a consequence of the pleadings.[22]

28 She then made orders to be carried out in the light of this Issue Waiver Ruling in circumstances where the LPP claims had not yet been accepted. These included orders for the plaintiffs to substantiate any claim of LPP, along with an indication of whether they said that such privilege had been waived.[23] The defendant was then to serve responding material,[24] while both parties were also to confer and advise as to the documents in dispute.[25]

29 By the time of the second hearing, two tables had been prepared by the plaintiffs and contributed to by the defendant; one for documents produced pursuant to the Aitkens subpoena ('the Aitkens table'), and the other for documents produced pursuant to a subpoena issued to Elizabeth Apted,[26] the plaintiffs' former lawyer. The tables detailed, inter alia, whether the relevant documents were privileged and, if yes, whether there was agreement as to whether privilege was waived in each case.

30 The judicial registrar recorded that the defendant no longer contested the existence of the claims of LPP, and that the remaining dispute was in respect of the waiver of that privilege. In the result she considered that there were two matters to be determined:

• the application of her Issue Waiver Ruling to the disputed documents in the Aitkens table; and
• whether privilege over the whole of the Aitkens file had been waived as a result of 'associative waiver.'

31 As a result of applying the Issue Waiver Ruling and conducting an inspection of the documents the subject of the Aitkens table, the judicial registrar then produced an amended version of the Aitkens table which included her ruling in respect of each disputed document. In the result, she found that LPP was waived in respect of two categories (categories 9 and 24 in part), and that there were no disputed documents the subject of an 'associative waiver'.[27]

32 On 22 May 2020, the judicial registrar noted that the plaintiffs had subsequently accepted that category 83 also fell within the scope of the Issue Waiver Ruling.[28] She then ordered the production of four categories (one (category 12) on the basis that it was not privileged) and otherwise upheld the plaintiffs' objection.

33 Both parties accepted that the common law position applied,[29] given that it was the plaintiffs who objected to production, rather than the persons required to produce the documents (ie Aitkens).

34 This was a correct position to take given s 131A(1) of the Evidence Act 2008 (Vic) provides that the Court should apply the relevant provisions of the Evidence Act in preliminary proceedings only where the 'person' who is required to produce the document is the same as the person who makes the objection.[30]

35 The defendant submitted that the plaintiffs cannot withdraw the concession made that a waiver had occurred by reason of the filing of the Bradley statement. It further submitted that an application for leave to withdraw the concession, on appeal, was misconceived since the matter conceded was never the subject of adjudication. In any event, this did not touch on the critical question as to whether the plaintiffs waived privilege when they filed and served the witness statements.

36 In establishing a waiver, the defendant relied on the Bradley statement and the Bradford statement. More particularly, it focused on the relevant paragraphs of the Bradley statement extracted above, especially paragraph 5.[31]

37 The defendant also submitted that the plaintiffs repeated on oath and relied upon the matters set out in the Bradford statement and the Bradley statement by relying on further affidavits of Ms Taylor, Ms Bradford, and Mr Bradley (which ultimately confirmed that the matters in the Bradley statement were correct). In further submissions, this was said to be a waiver 'in addition' to the principal waiver.

38 The defendant emphasized that the plaintiffs sought to file the witness statements for the purpose of prosecuting the proceeding, including by influencing the defendant and the trial judge. In fact, the defendant responded to the Bradley statement by filing a supplementary witness statement of a Mr Robertson. Thus, by their conduct, the plaintiffs had 'approbated' and now sought to 'reprobate'.

39 There was confusion, at times, as to the sort of waiver relied upon ie whether it was 'disclosure' waiver (by the filing of the witness statement(s)) or 'issue' waiver.[32]

40 However, the waiver as developed was based on the disclosure of the relevant paragraphs of the Bradley statement, but examined in the context of the pleadings. I consider that this amounted to an allegation of a 'disclosure' waiver ie an allegation that a confidential communication between a lawyer and client had been disclosed.[33]

41 The plaintiffs acknowledged that there were cases which suggested that leave is required to withdraw a concession. However, they submitted that such a requirement ought not apply on a de novo appeal. Further, even if leave was required, the threshold should be less demanding given the nature of the appeal and the interlocutory nature of the decision. Finally, that leave was appropriate given the concession went to a matter of law and this Court is in as good a position as the judicial registrar to decide the point.

42 Presuming they were not bound by the concession, the plaintiffs emphasized that they had now unequivocally indicated that they will not seek to adduce evidence to the effect set out in the relevant paragraphs of the Bradley statement.[34] They also highlighted that this was broader than, but consistent with, an intimation they had given in submissions before the judicial registrar on 11 March 2020 that, depending on what the Court found, the plaintiffs would not seek to adduce that evidence.[35]

43 They emphasized that, given they had not yet relied on the evidence from Mr Bradley, they hence had not used the privileged material to their advantage since the Bradley statement only recorded evidence that the plaintiffs intended to adduce (some of which was inadmissible in any event). They accordingly had not 'approbated and reprobated' as alleged by the defendants.

44 In final submissions they also suggested that the facts were analogous to Attorney-General for the Northern Territory v Maurice.[36] They also cited National Australia Bank Ltd v C & O Voukidis Pty Ltd (No 2) ('Voukidis')[37] for the proposition that there is no waiver if a proof of evidence is withdrawn before it is relied upon.

45 A waiver will be found where there is inconsistency between the conduct of the privilege holder and the maintenance of the confidentiality, with the assessment of such inconsistency being informed, where necessary, by considerations of fairness (though the assessment is not performed by reference to some overriding principle of fairness operating at large).[38]

46 More particularly, a 'disclosure waiver' occurs when there is an inconsistency between disclosing the gist of the contents of a particular communication and attempting to maintain LPP over it.[39]

47 The purpose of the disclosure will also be relevant in considering inconsistency. For example, where the disclosure is explained by a public purpose an inconsistency is less likely to be found.[40]

48 Finally matters of 'fact and degree' will inevitably arise in determining whether there is a disclosure waiver.[41]

49 Dealing first with the concession, there is authority that, on appeal, a party generally requires leave to withdraw a concession made at trial though such authority is not directly concerned with a de novo appeal.[42]

50 However, consistent with the decision in IOL Petroleum Ltd v O'Neill (No 2),[43] I consider that there should be a requirement of leave, even in a de novo appeal, given the public interest in holding parties to concessions. This is also consistent with the terms of rule 84.10 which requires leave to adduce additional evidence not before the judicial registrar. Such a requirement tends to confirm that a party should ordinarily bring forth their entire case at first instance, and not wait for appeal to reframe it (which would also be contrary to the overarching purpose in the Civil Procedure Act 2010 (Vic)).

51 Nevertheless, I also consider that it is appropriate to allow the plaintiffs leave to withdraw the concession, in the interests of justice, for the following reasons:

• the concession is on a point of law where leave to withdraw is more readily given;[44]
• the concession was made in urgent circumstances, one week before the trial date then listed for 18 February 2020;
• the concession was given in the context of an interlocutory application;
• the appeal is a de novo appeal where the entire matter may be considered 'afresh';
• that it is appropriate to revisit the issue in the light of the (now) unqualified indication that the relevant paragraphs will not be relied upon;
• there is no relevant prejudice to the defendant who was well able to, and did, make submissions on waiver.

52 Given the concession is not operative, it is therefore necessary to consider (afresh) whether there was a waiver.

53 Dealing first with the main cases relied upon by the plaintiffs, in Voukidis, the New South Wales Supreme Court found that a partial disclosure of legal advice did not waive privilege over the entire advice as it was made for a limited purpose in a particular context, and was not relevant to any remaining issue in the proceeding.[45] This may be distinguished with the present case where, even if the plaintiffs do not proceed to rely on the relevant paragraphs of the Bradley statement, the disclosures remain relevant to the issues in the dispute.

54 The plaintiffs' reference to Attorney-General for the Northern Territory v Maurice[46] also did not assist them since, in that case, the High Court was concerned with whether the tender of a claim book waived privilege over other material ie the source material associated with its contents. This does not assist in the present case where privileged communications (or their gist) were actually disclosed in the Bradley statement.

55 It is true that the communications in this case only appear in a witness statement of intended (and possibly inadmissible) evidence. It is also true that the plaintiffs have subsequently indicated that they no longer seek to rely on the relevant paragraphs.

56 Nevertheless, it is important to consider the context in which the Bradley statement was disclosed on about 15 January 2020 (particularly paragraph 5) as follows:

• that the plaintiffs filed and served the statement shortly prior to the trial date;
• that it led to the filing of further evidence from Mr Robertson on 12 February 2020;
• that the pleadings at the time raised an issue as to whether the plaintiffs consented to, or agreed, that the reduced area of land was to become the option land;[47]
• that the Bradley statement was clearly calculated to support the Bradford statement and further dispute evidence from the Costelloe statement (which had been filed) in relation to an alleged agreement being reached on 13 April 2020; and
• that it could be expected to affect any settlement negotiations.

57 I therefore consider that the plaintiffs have acted inconsistently with the privilege by disclosing and deploying privileged communications, being those set out in the relevant paragraphs of the Bradley statement.

58 Accordingly, I am of the view that there has been a waiver of privilege. However, it remains to consider the scope of that waiver.

59 The defendant submitted that by disclosing some, but not all, aspects of the privileged communications involving the plaintiffs and Mr Bradley, they had 'put in issue the true nature and content of all such communications.' It submitted that the defendant was entitled to any disputed document which comprised evidence or recorded communications between any of the plaintiffs and Mr Bradley and/or Ms Apted 'whenever occurring.'

60 There were various other formulations given for the scope of the waiver. Senior counsel particularly emphasized that the waiver ought to cover communications which included an 'absence' of reference to matters such as Ms Bradford's requirement for a corner block, or other obstacles to the 'election' (as alleged by Ms Bradford).

61 However, in the result, the formulation he adopted was as follows:

Devlot is entitled to any and all of the Aitken Disputed Documents and Apted Disputed Documents which comprise, evidence or record communications between any of the plaintiffs, Mr Bradley and/or Ms Apted, whenever occurring, which render more or less likely the occurrence and truth of the matters referred to in paragraphs 5, 13 and 14 of the Bradley statement and paragraphs 54 and 55 of the Bradford statement.

62 Thus the defendant ultimately submitted that this formulation targets documents which are relevant, and that relevance was the only logical selection criterion.

63 The plaintiffs also proffered various alternatives. First, they submitted that, if there was waiver, it ought to be confined to documents recording initial instructions comprising statements by the plaintiffs or Ms Apted to Mr Bradley comprising an account of communications between the plaintiffs and representatives of the defendants on or about 13 April 2015. They submitted that paragraph 5 was all about initial instructions so that should confine the scope, bearing in mind that the scope should be only that which is necessary to avoid the unfairness.

64 Alternatively, the plaintiffs contended that the waiver was confined to instructions recording or evidencing statements by the plaintiffs or Ms Apted to Mr Bradley comprising an account of communications between the plaintiffs and representatives of the defendant on or about 13 April 2015.

65 They submitted that the defendant's oral formulation was too broad given it took as its touchstone the concept of 'relevance,' rather than the Bradley statement. Secondly it sought materials which go to the underlying facts in issue.

66 The plaintiffs ultimately submitted that any waiver should be narrow in scope, and limited to the specific communication(s) the Court finds was/were disclosed.

67 The plaintiffs also again emphasized that any option had to be exercised in writing under SC 13.1 or, at the very least, there needed to be some communication by the plaintiffs to the defendant. Thus any waiver should be limited to statements concerning communications between the parties, and should not extend to statements concerning the plaintiff's subjective intentions.

68 Consistent with the concession of both parties,[48] the common law principles apply. More specifically, s 126 of the Evidence Act has no application which purports to provide a test for related documents, sometimes referred to as 'associative' waiver (as the judicial registrar described it).

69 In determining the scope of a waiver at common law, there does appear to be a reference in some of the cases to something entitled 'associated material waiver.'[49] However, the better view is that there is no such separate concept or species at common law.[50] Rather, the overriding principle is 'inconsistency' pursuant to Mann v Carnell,[51] which test has been applied by Courts even when considering 'associative' waiver.[52]

70 Maxwell P has further clarified, that certain statements from British American Tobacco Australia Services Ltd v Cowell,[53] which considered whether reference to another advice was 'necessary to a proper understanding of the first' reflected the application of the inconsistency test in those particular circumstances. It did not purport to be - nor could it properly have been - a restatement of the inconsistency test appropriate for all circumstances. [54]

71 It follows that, to the extent the judicial registrar purported to apply some further test of 'associative waiver,' she was in error. However, the error was not material given that she ultimately considered that no disputed documents were the subject of an 'associative waiver.'[55]

72 Returning to the inconsistency test the High Court, in Osland v Secretary, Department of Justice stated:[56]

The conduct of the Attorney-General in issuing the press release and including in it certain information about the joint legal advice is to be considered in context, which includes the nature of the matter in respect of which the advice was received, the evident purpose of the Attorney-General in making the disclosure that was made, and the legal and practical consequences of limited rather than complete disclosure.

73 In considering the scope of waiver in a practical context the Courts have also proffered various other tests for consideration, for example:

• whether the disclosure of a document, or the giving of evidence, without the disclosure of associated material, would give a 'partial or misleading picture', or would otherwise prejudice or embarrass the appellant in the conduct of the case;[57]
• that the holder of the privilege should not be able to abuse it by using it to create an 'inaccurate perception' of the protected communication;[58]
• whether the material that the party has chosen to release represents the whole of the material relevant to 'the same issue or subject matter';[59]
• that where a party chooses to deploy evidence which would otherwise be privileged the Court and the opposition must, in relation to the issue in question, be given the opportunity to satisfy themselves that they have the whole of the material and 'not merely a fragment.'[60]

74 Another aspect which may be relevant is whether the disclosure actually touches upon the pleaded issues in dispute.[61]

75 However, these various formulations ought to be treated with care given the Court of Appeal has cautioned against the development of generalisations, given each case must depend on its own facts.[62] The touchstone ultimately remains that of 'inconsistency' as applied to the particular facts.

76 In considering the release of the Bradley statement, I have already set out the context above.

77 In relation to disclosures of privileged communications in paragraphs 14 and 22, and absent specific submissions on this matter, I see no reason to depart from the judicial registrar's ruling in respect of these paragraphs. Thus I accept that there has been waiver in respect of the specific instructions to prepare and send the document on 17 June 2015 referred to in paragraph 14. Further, that, in respect of paragraph 22, there has been a waiver in respect of the plaintiff's instructions (given on/about 25 September 2015) not to discuss any compromise until the endorsed plans were amended.

78 Turning then to the pivotal paragraph 5, it purports to be framed in the negative, ie it purports to suggest what the initial instructions 'did not indicate.' However, in so doing, it discloses the content of confidential communications from both the plaintiffs and their former lawyer (Ms Apted) which somehow shed light on, or indicate, whether or not a concluded agreement was made on 13 April 2015 between the plaintiffs and the defendant for the plaintiffs to accept a reduced area of land. The 'subject matter' or 'issue' the subject of paragraph 5 is thereby whether there was a concluded agreement reached on 13 April 2015 between the plaintiffs and the defendant as to whether a reduced area of land would be accepted.

79 It is true that the paragraph cites only 'initial instructions.' However, the consequences of releasing only 'initial instructions' (as suggested by the plaintiffs) risks giving a partial or misleading 'fragment' of communications in relation to that subject matter. It would hence be unfair for the plaintiffs to be able to deploy initial instructions where there may be other communications on the same issue (in circumstances where unfairness may 'inform' the assessment).

80 Equally however the defendant's suggestion that all communications would be caught is unjustifiable. The suggested formulation in oral submission also reads more like a test appropriate in a discovery application, and was not supported by authority.

81 I rather consider that the plaintiffs have acted inconsistently with the maintenance of confidentiality over communications between the plaintiffs and their lawyers which indicate, or shed light on, whether there was a concluded agreement made between the parties on or about 13 April 2015 for the plaintiffs to accept a reduced area of land. Given the pleadings, considered with the terms of SC 13.1, appear to raise an issue of 'election,' the relevant subject matter ought to be extended to 'whether there was a concluded agreement or an election made on or about 13 April 2015 for the plaintiffs to accept a smaller parcel of land'.

82 There may be considerable doubt as to what instructions would in fact shed light on the reaching of an agreement, or the making of an 'election.' Even an election would need to be communicated, while both concepts would be considered by reference to the objective conduct of the parties. Nevertheless, having sought to assert that there were instructions which touched on this topic, I consider that it would be inconsistent for the plaintiffs to hold back any other communications which also touched on the existence or otherwise of a concluded agreement or election in April 2015.

83 I have also considered whether to extend the waiver to documents concerning whether an agreement was reached in December 2014 (referred to in paragraph 5(a) of the Bradley statement). However, the inclusion of the word 'rather' suggests that the topic remained whether there was a concluded agreement or election in April 2015. This is also consistent with the way the case was pleaded (with neither party pleading an election and/or agreement in December 2014).

84 I also do not consider that paragraph 5(b) extends the scope of the waiver given it purports to disclose the limited basis upon which the plaintiffs would have been 'prepared to consider' a lesser area of land in April 2015. The uncommunicated willingness of the plaintiffs to consider a lesser area does not touch upon the key issue of whether there was an agreement or election. In any event, the subject matter of paragraph 5 is whether there was a concluded agreement 'between the plaintiffs and the defendant' on or about April 2015. Such a concept clearly contemplates that any position be communicated, and does not extend to the plaintiffs' subjective wants or desires.

85 In my view, then, privilege has been waived in respect of any communications between the plaintiffs and their lawyers (Mr Bradley or Ms Apted) which indicate 'whether there was a concluded agreement or an election made on or about 13 April 2015 for the plaintiffs to accept a smaller parcel of land'.

86 The result is that the judicial registrar's delineation of the scope of the waiver contained in the Issue Waiver Ruling was essentially correct.

87 It was also not suggested that the judicial registrar otherwise made some error in inspecting and applying her ruling in respect of the Aitkens documents. It further appears that the parties had not yet undertaken the further work necessary for her to specifically rule on the Apteds documents such that the Court could have the benefit of that ruling[63] (in any event, the orders the subject of this appeal only dealt with the Aitkens documents).

88 In all of the circumstances, it is thereby appropriate for this appeal to be dismissed subject to dealing with the May emails.

89 The plaintiffs claimed that the May emails were released in error and should not be considered on appeal given:

• it remained for the judicial registrar to determine whether privilege applied to these documents in circumstances where the plaintiffs had recorded an objection on the basis of LPP;
• that the judicial registrar expressly reserved these emails for later consideration (at paragraph 49 of the Ruling);
• that if the plaintiffs had known the Court was ruling on these emails then they would have wanted to place more material on about the circumstances in which they were released.

90 The defendant on the other hand submitted that this Court should rule on these emails which had already been released in any event. It also submitted that, even if they were privileged, any privilege had been waived given they contained an expression of intention which was entirely contrary to what was said in the Bradley statement.

91 I will admit the May emails on the appeal given they were addressed by both parties. I would add that there appears to be much merit in the judicial registrar's views (at paragraph 92 of the Ruling) that the waiver (defined above) does not apply. However, I am otherwise unable to resolve whether these emails can be released in circumstances where they may be the subject of further evidence/submission. Rather, the better course appears to be that, if the plaintiffs wish to pursue LPP in respect of the May emails, that they be permitted to address this before the judicial registrar (with further evidence or otherwise) along with the other outstanding matters as indicated at paragraph 49(a) - (c) of the Ruling.

92 Subject to hearing from the parties as to the precise form of order, the following orders are appropriate:

1. The appeal is dismissed.

2. There is no order as to costs.

[1] Bradford v Devlot 17 Pty Ltd [2020] VSC 246 ('The Ruling').

[2] The judicial registrar's Ruling and order dated 22 May 2020 dealt only with the Aitkens subpoena objections.

[4] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 84.05(4).

[5] An exception was that at the hearing, the defendant consented to the plaintiffs' objection to the inclusion of exhibit 'CZD-13' to the affidavit of Ms Demiris sworn 18 February 2020 (at pages 688 to 741 of the appeal book) as privilege was still to be claimed over that material: see transcript of proceeding, 29 October 2020, 64.19-29. The defendant also consented to the exclusion of item 22 of the appeal book: see transcript of proceeding, 29 October 2020, 65.03. Otherwise the Court accepted the evidence as before it and, to the extent necessary, gave leave under r 84.10.

[6] The May emails were included at pages 227-30, 261-5, 484-8, 512-6, 683-6 and 1108-10 of the appeal book: see letter from Aitkens to the Court dated 26 October 2020.

[8] Amended statement of claim, 13 March 2019, [7].

[11] In circumstances where the defendant pleads that the plaintiffs failed to exercise their option to purchase the 'Reduced Parcel': Further amended defence and counterclaim, 31 July 2019, [3G].

[12] Witness statement of Vicki Adele Bradford, 17 October 2019, [42]-[44].

[17] Witness statement of Rory John Costelloe, 4 December 2019, [89], [94].

[23] Order of Judicial Registrar Matthews dated 11 February 2020, [3].

[26] The same categories of documents were sought as by the Aitkens subpoena, and the same objections were also raised by the plaintiffs.

[28] Transcript of proceeding, 22 May 2020, 8.02-7.

[29] Transcript of proceeding, 29 October 2020, 11.02-11.

[30] Cargill Aust Ltd & Ors v Viterra Malt Pty Ltd & Ors (No 8) [2018] VSC 193, [42]; Alphington Developments

Pty Ltd v Amcor Limited (No 2) [2018] VSC 293, [22]-[27].

[31] Although there was a suggestion (in reply submissions) that there 'may be' a waiver by reason of the pleadings, the defendant also said it was 'unnecessary' for the court to determine the issue and did not advance the matter further, nor identify why the pleadings of themselves established a waiver.

[32] Although I accept that the test remains the same ie 'inconsistency', it is also important that the conduct constituting the waiver be identified with some precision.

[33] Mullet v Nixon [2016] VSC 129, [23]-[37].

[34] Citing the affidavit of Andrew Blogg sworn 7 August 2020, [13].

[35] See Plaintiffs' reply submissions on waiver, 11 March 2020, footnote 5.

[36] [1986] HCA 80; (1986) 161 CLR 475.

[37] [2015] NSWSC 258.

[38] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, 13 [29].

[39] Mullet v Nixon [2016] VSC 129, [23], though J Forrest J was referring to disclosure waiver under s 122 of the Evidence Act 2008 (Vic).

[40] Osland v Secretary, Department of Justice (2008) 234 CLR 275, 298 [48].

[41] Ibid 298-9 [49]; Mullet v Nixon [2016] VSC 129, [28].

[42] See, eg Lafranchi v Transport Accident Commission [2006] VSCA 81; (2006) 14 VR 359.

[43] IOL Petroleum Ltd v O'Neill (No 2) (Supreme Court of New South Wales, Young J, 17 November 1995).

[44] Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635, 658.

[45] [2015] NSWSC 258.

[46] [1986] HCA 80; (1986) 161 CLR 475.

[47] Further amended defence and counterclaim, 31 July 2019, [3AI], [3D]; Reply to further amended defence and defence to further amended counterclaim, 23 August 2019, [10], [14].

[48] Transcript of proceeding, 29 October 2020, 11.02-11.

[49] See, eg, AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30, 76-80 [164]-[176].

[50] And see Zantran v Crown Resorts Ltd (No 2) (2020) 146 ACSR 235, 251 [42], 253 [45].

[51] [1999] HCA 66; (1999) 201 CLR 1.

[52] See, eg, ACCC v Prysmian Cavi E Sistemi Energia SRL (No 10) [2015] FCA 763; (2015) 235 FCR 593, 599-600 [18]; AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30, 80 [178].

[53] [2002] VSCA 197; (2002) 7 VR 524.

[54] Secretary, Department of Justice v Osland [2007] VSCA 96; (2007) 26 VAR 425, 443 [57]; Although this decision was reversed on appeal, these specific remarks were not the subject of consideration: see Osland v Secretary, Department of Justice (2008) 234 CLR 275, especially at [50] where the reasoning of Maxwell P was said to be correct.

[56] (2008) 234 CLR 275, 297 [46] (Gleeson CJ, Gummow, Heydon and Kiefel JJ).

[57] Attorney-General for the Northern Territory v Maurice [1986] HCA 80; (1986) 161 CLR 475, 484 (Gibbs CJ).

[59] AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30, 76 [164].

[60] Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation (No 2) [1981] ComLR 138, 139, quoted in Attorney-General for the Northern Territory v Maurice [1986] HCA 80; (1986) 161 CLR 475, 498 (Dawson J). See also ACCC v Prysmian Cavi E Sistemi Energia SRL (No 10) [2015] FCA 763; (2015) 235 FCR 593, 598-9 [14].

[61] Zantran v Crown Resorts Ltd (No 2) (2020) 146 ACSR 235, 254 [56]; National Australia Bank Ltd v C & O Voukidis Pty Ltd (No 2) [2015] NSWSC 258.

[62] Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118; (2018) 58 VR 333, 344 [44].