Plaintiffs v Defendants

1. By summons filed on 29 October 2025, the second and fifth defendants ('Engineer Defendants') seek orders that the plaintiffs produce a number of documents over which the plaintiffs assert legal professional privilege ('ED Production Application').
2. The Engineer Defendants and the first defendant ('Probuild') have made separate submissions in support of the ED Production Application although they are aligned in their interests and submissions on seeking production. The Engineer Defendants rely on the affidavits of Andrew Charles Brennan sworn on 28 October 2025 ('October Brennan Affidavit') and 24 December 2025 ('December Brennan Affidavit') and written submissions filed 24 December 2025.
3. Probuild relies on the affidavit of George Mourani sworn on 20 January 2026 and written submissions filed 20 January 2026. Probuild also relied on an aide memoire and an updated index of documents.
4. In support of their privilege claims, the plaintiffs rely on the affidavits of Corin Eileen Morcom affirmed on 9 December 2025 ('2025 Morcom Affidavit') and 27 January 2026 ('2026 Morcom Affidavit') and written submissions filed on 27 January 2026. The 2025 Morcom Affidavit has been filed subject to confidentiality orders. These reasons are expressed in a manner intended to be consistent with those orders.

1. Between 1997 and 2011, the first plaintiff ('Wadren') developed the regional shopping centre known as Pacific Werribee ('Werribee Centre'). In 2010, Wadren undertook plans for the expansion of the Werribee Centre. On 21 March 2014, Wadren engaged Probuild to construct Stage 7 of those expansion works which included a three-storey building in the southern part of the Werribee Centre and a three-storey building to the north-east of Myer ('Stage 7 Works').
2. On 14 March 2023, the plaintiffs issued this proceeding alleging defects in respect of the Stage 7 Works. The particular pleas in the most recent Further Amended Statement of Claim[1] ('2026 FASOC') that are relevant to the present application, as discussed further below, include allegations that the plaintiffs took reasonable steps to mitigate their losses following the identification of defects that arose due to structural and design defects ('Structural Design Defects'). The particulars of those steps include the retainer of MPN and reliance on their reports and advice. A number of reports between 2019 and 2021 are specifically referred to and relied on.
3. The present application arises in circumstances where, the plaintiffs' solicitors, Allens, engaged MPN (a firm of consulting engineers), which is not a party to the proceeding. The purposes for which Allens engaged MPN is in dispute. Allens says MPN was engaged for the dominant purpose of Allens giving legal advice to the plaintiffs and therefore, the documents the subject of this application ('Privilege Documents') are privileged.[2] The Engineer Defendants say that, in the circumstances, the purposes for which MPN was engaged and prepared reports include managing risk and assessing and implementing necessary rectification rather than providing legal advice. The Engineer Defendants further submit that having regard to the fact that there are at least some non-legal purposes, the plaintiffs have not discharged the onus on it to identify the dominant purpose, and therefore sustain their privilege claim. The Engineer Defendants further submit that any privilege has been waived, largely because of extensive reliance on MPN reports and conduct in the pleadings and correspondence.
4. The issues to be determined are:

(a) whether the plaintiffs have established that the dominant purpose of the communications was for legal advice; and

(b) whether any privilege has been waived.

1. The parties both made submissions on whether the Court should exercise its discretion to inspect the Privilege Documents pursuant to s 133 of the Evidence Act 2008 (Vic) ('Evidence Act'). I determined that, in the circumstances, inspection of the documents would be appropriate to assist in assessing the plaintiffs' privilege claims. The plaintiffs have adduced sufficient evidence to establish that Allens was retained to provide legal advice in relation to the issues that had arisen at the Werribee Centre and that MPN was retained to provide reports for that purpose. A prevailing theme in the Engineer Defendants' submissions is that the purpose, or at least a purpose, of the communications was non-legal and therefore, there is a question as to what is the dominant purpose. Having regard to the fact that Allens is a law firm providing legal services and Ms Morcom's evidence as to her familiarity with, and responsibility for, the file, it may be inferred that legal advice was, at least, a purpose of the communications. To the extent there is any doubt about whether that legal purpose was dominant, I consider the question will likely be resolved by inspecting the Privilege Documents. That approach is consistent with that taken by Macaulay J (as his Honour then was) in Cargill v Viterra[3] and the principle that the Court should not be hesitant to exercise its power to examine documents.[4]

1. The plaintiffs submit that there were two separate engagements; those being a 'Structural Assessment Engagement' and a 'Stage 7 Works Engagement' that had distinct and separate purposes.

First retainer: Structural Assessment Engagement

1. The purpose of the Structural Assessment Engagement was for MPN to 'undertake a structural risk assessment of various assets' including assets other than the Werribee Centre.[5] The plaintiffs do not claim privilege over documents concerning the Structural Assessment Engagement, and say that the Engineer Defendants' submissions about the relevance of this retainer are misplaced.
2. However, the plaintiffs have produced redacted versions of documents relating to the Structural Assessment Engagement which the Engineer Defendants say should be produced in unredacted form. These redacted documents include:

(a) Document 1 (MPN.001.001.0495) which is a retainer letter from Allens to MPN dated 23 July 2019.[6]

(b) Document 10 (MPN.001.013.0220) that the plaintiffs have agreed to disclose.

(c) Document 16 (MPN.004.001.0001) which is a letter of instruction from Allens to MPN dated 18 November 2019.

Second retainer: Stage 7 Works Engagement

1. The second retainer concerns Allens and QICP's engagement of MPN for advice relating to the Stage 7 Works. The relevant documents in relation to this retainer include retainer letters, letters of instructions and reports.
2. There are two retainer letters relating to the Stage 7 Works: a letter dated 26 July 2019 ('July Retainer') and a letter dated 21 November 2019 ('November Retainer').[7] Ms Morcom deposes that the latter superseded the former. The July Retainer provides:

Retainer Letter-QIC-Pacific Werribee Shopping Centre

We act for QICP Pty Ltd (QIC) in relation to certain incidents at the Pacific Werribee Shopping Centre (Pacific Werribee).

1 Background

QIC engaged Probuild to refurbish and expand Pacific Werribee (the Agreement).

There have recently been certain incidents at Pacific Werribee involving the cracking and falling of concrete within the centre (Defects). Probuild has engaged Calibre Professional Services Pty Ltd (Calibre) to carry out rectification works in relation to those incidents.

Allens is providing advice to QIC (in its capacity as agent for the owners of Pacific Werribee) in relation to:

(a) potential claims that QIC may have against Pro Build and/or Calibre in relation to the Defects; and

(b) potential claims against QIC by third parties affected by the Defects.

2 Scope of your retainer

The scope of works the subject of this retainer is set out below.

You are instructed to:

(a) review the rectification works which Probuild and/or Calibre propose to undertake at Pacific Werribee, in order to bring Pacific Werribee into conformity with the Agreement. QIC expects that these works will include:

(i) a full site inspection of the centre, including the inspection of all expansion joints; and

(ii) the rectification of all Defects;

(b) carry out a review of all works carried out by Probuild and/or Calibre at Pacific Werribee, with a focus on the structural integrity of the concrete and the expansion joints;

(c) provide us a report setting out the findings of your review.

(a) identify the safety and health risks associated with the Defects;

(b) consider whether the identified risks are well known and whether there are well established and accepted control measures for the risks;

(c) if the identified risks are not well known or there are not well established and accepted control measures for the risks, conduct a formal risk assessment in respect of the risks;

(d) prepare a report addressing your opinion as to:

(i) whether the existing controls in respect of the risks to health and safety eliminate the risks so far as is reasonably practicable; or, if not, minimise those risks so far as is reasonably practicable;

(ii) any additional, reasonably practicable short, medium and long term control measures that should be implemented in respect of any residual risks to health and safety.

1. The November Retainer provides (with changes marked up to denote the differences with the July Retainer):

Retainer Letter-QIC-Pacific Werribee Shopping Centre

We act for QICP Pty Ltd (QIC) (in its capacity as agent for the owners of Pacific Werribee) in relation to certain incidents at the Pacific Werribee Shopping Centre (Pacific Werribee) associated with the works undertaken by Probuild Constructions (Aust) Pty Ltd (Probuild). This retainer supersedes your retainer dated 6 August 2019.

1 Background

QIC engaged Probuild On 21 March 2014 Probuild was engaged to refurbish and expand Pacific Werribee, pursuant to a design and construct contract (Contract Agreement). The works undertaken by Probuild are referred to as the "Stage 7 Works."

There have recently been certain incidents at Pacific Werribee whereby concrete within the centre has cracked and fallen. involving the cracking and falling of concrete within the centre (Defects). Pro build has engaged Calibre Professional Services Pty Ltd (Calibre) to carry out rectification works in relation to those incidents.

Allens is providing advice to QIC (in its capacity as agent for the owners of Pacific Werribee) in relation to:

(a) potential claims that QIC may have against Probuild (and/or Calibre other downstream contractors) in relation to the Defects Stage 7 Works; and

(b) potential claims against QIC by third parties affected by the incidents at the Defects Stage 7 Works.

2 Scope Basis of Your Retainer

You are retained to provide your independent expert opinion in relation to the defects with respect to the Stage 7 Works. This includes providing a written report setting out your expert opinion. If we instruct you to commence working on this matter and/or provide a written report, we will provide you with a brief, along with questions and relevant assumptions in the form of a letter of instruction at that time.

We may rely on your report as evidence in any proceedings against Probuild.

The scope of works the subject of this retainer is set out below.

You are instructed to:

(a) review the rectification works which Pro build and/or calibre propose to undertake at Pacific Werribee, in order to bring Pacific Werribee into conformity with the agreement. QIC expects that these works will include:

(i) a full site inspection of the centre, including the inspection of all expansion joints; and

(ii) the rectification of all Defects;

(b) carry out a review of all works carried out by Pro build and/or calibre at Pacific Werribee, with a focus on the structural integrity of the concrete and the expansion joints;

(c) provide us a report setting out the findings of your review.

(a) identify the safety and health risks associated with the Defects;

(b) consider whether the identified risks are well-known and whether there are well-established and accepted control measures for the risks;

(c) if the identified risks are not well-known or there are not well established and accepted control measures for the risks, conduct a formal risk assessment in respect of the risks;

(d) prepare a report addressing your opinion as to:

(i) whether the existing controls in respect of the risks to health and safety eliminate the risks insofar as is reasonably practicable; or, if not, minimise those risks so far as is reasonably practicable;

(ii) any additional, reasonably practicable short, medium and long-term control measures that should be implemented in respect of any residual risks to health and safety.

(a) refers to the expert witness code of conduct applicable in Victoria;

(b) states that the creator of the report may be required to give evidence;

(c) includes, as a term, that any report or other document created in consequence of the retainer is confidential and may be subject to a claim of legal professional privilege; and

(d) requests that any document created by MPN contain the header 'Confidential & Privileged: Prepared for the Dominant Purpose of Litigation.'

1. Allens subsequently wrote three letters of instruction to MPN:

(a) a letter dated 23 August 2019 (MPN 001.001.0592) ('2019 LOI')[8];

(b) a letter dated 17 December 2020 (MPN.005.001.0027) ('2020 LOI')[9]; and

(c) a letter dated 13 August 2021 (MPN.001.001.9498) ('2021 LOI').[10]

1. The 2019 LOI briefly recites the background and relevantly states:

Allens is providing advice to QIC (in its capacity as agent for the owners of Pacific Werribee) in relation to potential action by WorkSafe Victoria in respect of the Defects.

2 Instructions

You are instructed to prepare a brief written report in the form of a letter which summarises the results of your inspections and review of relevant materials to date.

Please include in your report your opinion as to:

(a) the safety and health risks associated with the Defects;

(b) whether the existing controls in respect of the risks to health and safety eliminate the risks so far as is reasonably practicable; or, if not, minimise those risks so far as is reasonably practicable;

(c) any additional, reasonably practicable, short, medium and long term control measures that should be implemented in respect of any residual risks to health and safety.

1. The 2020 LOI briefly recites the background and relevantly states:

We refer to:

• the Werribee Plaza Shopping Centre Design and Construction Contract dated 21 March 2014 (Contract); and

• your retainer signed by you on 22 November 2019 (Retainer);

• your letter of instruction dated 25 November 2019.[11]

This letter of instruction is issued pursuant to, and is subject to, the terms of your Retainer ...

1 Instructions

You are instructed to prepare a written report or reports (Expert Report) which:

(a) as to any seismic defects in Stage 7 of Pacific Werribee:

(i) details your view on whether Stage 7 complied with the requirements of:

[the Contract and various Building and Australian Standards] (together, the Compliance Standards);

(ii) provides your opinion as to an appropriate permanent rectification solution and design which could be implemented to bring the Stage 7 Works into conformity with the requirements of each of the Compliance Standards;

(iii) provides your opinion as to whether the proposed permanent rectification solution is reasonable and necessary to bring the Stage 7 works into conformity with the requirements of each of the Compliance Standards;

(iv) provides your opinion on any scope, cost, timing and disruption differential between the permanent rectification solutions identified at (a)(ii);

(b) as to any corbel joint defects in Stage 7 of Pacific Werribee:

(i) updates the Structural Assessment Report on Stage 7 Carpark and Retail Concrete Movement Joints dated 25 September 2019 in light of any information obtained since that date;

(ii) details your view on whether Stage 7 complied with the requirements of the Compliance Standards;

(iii) provides your opinion as to an appropriate permanent rectification solution and design which could be implemented to bring the Stage 7 Works into conformity with the requirements of the Compliance Standards;

(iv) provides your opinion as to whether the proposed permanent rectification solution is reasonable and necessary to bring the Stage 7 works into conformity with the requirements of each of the Compliance Standards;

(v) provides your opinion on any scope, cost, timing and disruption differential between the permanent rectification solutions identified at (b)(a)(ii);

(c) as to any other defects in Stage 7 of Pacific Werribee:

(i) details your view on whether Stage 7 complied with the requirements of the Compliance Standards;

(ii) provides your opinion as to an appropriate permanent rectification solution and design which could be implemented to bring the Stage 7 Works into conformity with the requirements of the Compliance Standards;

(iii) provides your opinion as to whether the proposed permanent rectification solution is reasonable and necessary to bring the Stage 7 works into conformity with the requirements of each of the Compliance Standards;

(iv) provides your opinion on any scope, cost, timing and disruption differential between the permanent rectification solutions identified at (c)(a)(ii).

1. The 2021 LOI is substantially identical to the 2020 LOI, save that it does not include paragraphs (a)(iv), (b)(v) or (c)(iv).[12]

1. The reports produced pursuant to those retainers and instructions are:

(a) a report dated 25 September 2019 (MPN.001.004.0519) ('2019 Report');

(b) a report dated 7 September 2021 (MPN.001.001.9469) ('2021 Report'); and

(c) a report dated 7 February 2022 (MPN. 001.004.0001) ('2022 Report')[13]

References to the MPN Reports in the pleadings

1. The 2026 FASOC includes references to the MPN Reports and MPN's advices as well as the subsequent actions the plaintiffs took in reliance on that advice. Broadly speaking, the plaintiffs rely on MPN's advice to support the plea that reasonable mitigation steps were undertaken. The particular references are in paragraphs 344 to 353 of the 2026 FASOC, where the plaintiffs plead that, as a result of the Structural Design Defects in the Stage 7 Works, they implemented temporary measures, periodic inspections and permanent rectification works, and further, that those measures were reasonable.[14] The particulars of those matters include references to works performed, and reports produced, by MPN. The Engineer Defendants say that the question of the reasonableness of the steps taken to address alleged defects is in issue, and therefore, the question of privilege must be considered in that context. Broadly speaking, it is apparent that the plaintiffs rely on the MPN Reports and advices in support of their pleas that they acted reasonably in implementing the temporary measures, inspections and rectification works. Those matters have been put in issue, which lends support to submissions as to waiver of privilege.
2. I will deal with the question of waiver more particularly in relation to specific documents sought, but I note generally that the plaintiffs have put in issue the reasonableness of the measures it undertook, and that MPN were engaged to assess risks and consider appropriate measures to address those risks.

1. The question of the discovery of MPN documents was before Stynes J on 25 July 2025. That hearing included consideration of the extent to which the pleadings had referred to documents that had not previously been produced. On 1 August 2025, orders were made for the production of various documents in the following terms ('August 2025 Orders'):

1. By 4:00pm on Thursday. 21 August 2025, the plaintiffs are to disclose (subject to any claims that a document is irrelevant on the basis identified in order 52 below or privileged) to the parties copies of the following documents set out below:

(a) all retainer(s) and letter(s) of instruction for the reports of MPN Group Pty Ltd (MPN) dated 25 September 2019 (MPN.001.004.0519) (2019 Report); 7 September 2021 (CLB.001.004.9741) (2021 Report) and 7 February 2022 (MPN. 001.004.0001) (2022 Report), including the letter of instruction dated 25 November 2019 and retainer letter signed on 22 November 2019; > > (b) any further reports from MPN provided in relation to the Stage 7 Works that have not yet been disclosed and all retainer(s) and letter(s) of instruction relating to those further reports; > > (c) all file notes and other documents that record any instructions given to MPN in relation to the 2019, 2021 and 2022 Reports, and in relation to any other reports provided under subparagraph (b) above (Relevant Instructions).

1. The plaintiffs are entitled to apply redactions to any document disclosed under order 51 on the basis that they claim that the material contained in the document is privileged or, for documents described in [51](c), any content that does not record Relevant Instructions 2. By 4:00pm on Thursday, 21 August 2025, the plaintiffs are to provide the parties a list of any documents not produced under order 51, or produced with reductions under order 52, by reason of a claim that the document or part of the document is privileged, or that part of a document is irrelevant, that sets out the basis on which each document has been withheld or redacted.

Production of documents and claim for privilege

1. On 10 September 2025, in purported compliance with the August 2025 Orders, Allens, on behalf of the plaintiffs, wrote to the defendants:

(a) pursuant to orders 51(a)-(c), disclosing 33 documents; and

(b) pursuant to orders 52 and 53, producing a schedule of 18 documents which were responsive to orders 51(a), (b) and (c) but were, in respect of 17, wholly privileged, and in respect of one, partially privileged and redacted.[15]

1. On 9 December 2025, Allens provided the defendants' solicitors with a revised schedule which listed 13 documents. Out of these 13 documents, two documents are additions to the schedule. The remaining 11 documents are documents over which the plaintiffs either maintain a claim of privilege or maintain that the redacted portions of the documents redact irrelevant material. The omitted documents are documents over which the plaintiffs no longer claim privilege. The 20 documents listed in both the schedule provided on 10 September and the schedule provided on 9 December are referred to in this judgment as 'Privilege Documents'. At the hearing of this application, the plaintiffs provided the Court with a list encompassing all 20 documents which is referred to in this judgment as the 'Updated Privilege Schedule'.
2. The Engineering Defendants seek production of the Privilege Documents in the Updated Privilege Schedule without redactions essentially on the basis that:

(a) there is no valid basis for any redactions based on relevance;

(b) the plaintiffs have not established a valid claim for privilege; and

(c) any privilege has been waived.

1. Section 118 of the Evidence Act describes legal advice privilege, and applies to this application by operation of s 131A. Section 118(c) provides as follows:

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

...

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

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

1. The onus is on the party asserting privilege to demonstrate that the document was made for the 'dominant purpose' of providing legal advice to the client.[16] This is a question of fact to be assessed objectively, but the subjective purpose may also be relevant.[17]
2. A purpose will be 'dominant' where it is the ruling, prevailing, most influential or paramount purpose for which the document was created.[18] A purpose will not be 'dominant' where it is merely one purpose among others. The Full Federal Court of Australia stated, '[i]f the advice given by a legal adviser is predominantly for a financial, personal or commercial purpose, as opposed to a purpose of seeking legal services or assistance, it will not be protected.'[19]
3. A document must also have been 'prepared' for the dominant purpose of obtaining legal advice as opposed to having been merely 'collected or collated'.[20]
4. Specific factual evidence rather than a mere assertion is required to demonstrate that the document was created for the dominant purpose of providing legal advice. Brereton J explained:

The evidence must reveal the relevant characteristics of each document in respect of which privilege is claimed, and must do so by admissible direct evidence, not hearsay.[21]

Where a lawyer has been retained for the purposes of providing legal advice in relation to a particular transaction or series of transactions, communications between the lawyer and the client relating to that transaction will be privileged, notwithstanding that they do not contain advice on matters of law; it is enough that they are directly related to the performance by the lawyer of his or her professional duty as legal adviser to the client. In Dalleagles, Anderson J said at 332-333 that professional discourse in a professional capacity between a solicitor and his client with reference to the transactions covered by his instructions should be regarded as prima facie for the purpose of giving and receiving advice. In his Honour's view, this would apply to any communication that is on its face a communication of a professional nature from the solicitor to the client or his agent touching the subject matter of the solicitor's engagement and any communication from the client to the solicitor in connection with that engagement. These propositions were referred to, with approval, by Allsop J in DSE at [51]-[52] and by Branson J in Wenkart v Commissioner of Australian Federal Police (unreported, Federal Court, Branson J, 11 November 1996).[22]

1. These observations are relevant to the present application in which Allens were acting as lawyers for the plaintiffs.
2. The Court in Energy Resources v Cactus Wellhead stated that '... when a communication is with, or a document is prepared by, a third party, it is the nature of the function the third party performs that is relevant, not the party's relationship with the third party.'[23]
3. The Court also stated that '[w]hen a privileged communication provides copies of non-privileged documents, the copies are privileged as part of the privileged communication.'[24]

1. The question of waiver is to be determined by the application of s 122(2) of the Evidence Act which relevantly provides:

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

1. The onus is on the party asserting waiver to establish inconsistency within the meaning of the s 122.[25] In Viterra Malt v Cargill Australia ('Viterra v Cargill'), the Court of Appeal observed that there had been a number of descriptions, or 'alternative tests', in the authorities reflecting the quality or degree of inconsistency required to satisfy s 122.[26] Ultimately, the Court concluded that '[t]he preferable course is therefore not to apply any alternative test but the language of the statute.'[27]
2. In GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd, the Court summarised the relevant principles on waiver (in the context of the NSW cognate legislation). The parties adopted them as accurate statements of the applicable principles:
   1. The test is one of inconsistency between the privilege holder's conduct and its maintenance of the privilege, not one of general fairness or of relevance to an issue in the proceedings.
   2. Enquiring whether the privilege holder has made express or implied assertions about the contents of the confidential communications, and whether its conduct has therefore "laid open the communications to scrutiny", assists in ensuring that the court's focus is on inconsistency rather than simply relevance. If the privilege holder is understood to be asserting something about the contents of the communications, it is but a short step to conclude that it would be inconsistent for it to prevent those contents being scrutinised.
   3. On the other hand mere relevance of the content of the privileged communications to an issue raised in the proceedings by the privilege holder does not equate to inconsistency - something more is needed. It is of the essence of legal professional privilege that, if maintainable, it entitles a party to withhold potentially relevant documents from inspection by the other party.
   4. The determination of whether there has been an express or implied assertion about the contents of privileged communications giving rise to a relevant inconsistency is an evaluative decision to be made after consideration of the whole of the circumstances of the case. No hard and fast rules can be formulated. Those circumstances will include the degree of relevance of any advice to the issues in the proceedings, the centrality of the relevant issues in the proceedings and the likelihood of advice having been given, informed, as the High Court said in Mann v Carnell, by considerations of fairness.
   5. Having considered all those circumstances, the court must decide whether it would be inconsistent with the privilege holder's conduct for it to maintain privilege. The line between relevance to an issue and inconsistency in this context may be very fine and therefore one on which views might well differ.[28]
3. The Engineer Defendants and Probuild do not contend that there has been an issue of waiver with respect to the Privilege Documents. Rather, the Engineer Defendants assert the plaintiffs' reliance on certain MPN reports exposes for scrutiny 'all communications and documents that MPN have issued...'. Probuild submits that it would be inconsistent for the plaintiffs to selectively disclose documents and withhold others and that the Engineer Defendants and Probuild must be fairly placed to assess the full picture of MPN's views. In substance, the Engineer Defendants submit that waiver arises from the fact that chronologically, the Privilege Documents fall within the same period as disclosed documents and, in the very broadest sense, the Privilege Documents concern the same subject matter.
4. That is not to say that the disclosure of many privileged documents necessitates the disclosure of all privileged documents. There must be an inconsistency between the maintenance of privilege in the documents sought, and the disclosure of others.[29] In Bradford v Devlot 17 Pty Ltd (No 3), Kennedy J addressed this point as follows:

Fundamentally, I do not consider it appropriate to base a finding of a broad waiver on an argument that the Plaintiffs have disclosed a lot of documents, which the Defendant contends are privileged, and so therefore it is unfair to maintain privilege over the balance of the documents. It cannot be the case that this boils down to a numbers exercise.[30]

...the Defendant should have identified which privileged and undisclosed documents are required in order for a proper understanding of the disclosed documents to be achieved. Which documents is it inconsistent to maintain privilege over when other documents have been disclosed? The Defendant says, all of them. But this is simply too imprecise.[31]

1. As noted above, the onus is on the plaintiffs to demonstrate that the document was made for the 'dominant purpose' of providing legal advice to the client. The plaintiffs rely on the 2025 and 2026 Morcom Affidavits.
2. In the 2026 Morcom Affidavit, Ms Morcom deposes that she is a partner at Allens with day-to-day carriage of this matter on behalf of the plaintiffs and makes the affidavit in support of the claim for privilege. Ms Morcom deposes that:

All of the facts and circumstances deposed to herein are within my knowledge, save for those deposed to from information and belief. Where I depose to matters on information and belief, my means of knowledge and sources of information are set out in this affidavit and I believe those matters to be true to the best of my knowledge.

...

I have reviewed the documents over which the Co-owners claim privilege. I believe the facts set out below are correct based on my review of the specific documents referred to ... and my experience acting for the Co-Owners under the Stage 7 Works Engagement ... and in this proceeding.

My evidence at paragraphs 34, 37 and 38 of the Morcom 2025 Affidavit is based on my direct involvement in the Stage 7 Works Engagement. While I was not involved in the Stage 7 Works Engagement in July 2019, my subsequent involvement on the matter caused me (and required me) to understand:

(a) the scope of Allens' engagement with QICP and the Co-Owners; and

(b) the work undertaken on the Stage 7 Works Engagement prior to my involvement, including which Allens Partners and employees were involved in that work.

1. In relation to the documents sought in this application, Ms Morcom says:

... the 13 documents (over which the Co-Owners claim privilege) were communications or related to work carried out under the Stage 7 Works Engagement, was based on my involvement in the Stage 7 Works Engagement.[32]

1. In relation to the services provided by Allens, and the engagement of MPN, Ms Morcom says:

... the legal services provided by Allens in relation to the Stage 7 Works Engagement and the Structural Assessment Engagement were provided under separate engagements with separate matters numbers. The Structural Assessment Engagement was administered by Allens under the matter 'Portfolio Structural Review' and the Stage 7 Works Engagement was administered by Allens under the matter 'Pacific Werribee'. It is Allens' matter management practice and my experience at Allens on the Stage 7 Works Engagement and generally, that work products prepared, sent or received by Allens are saved to the matter to which they concern.[33]

1. Ms Morcom then goes on the explain in some detail the retainers, letters of instructions and legal services provided by Allens.[34]
2. The Engineer Defendants and Probuild initially objected to various parts of the 2025 Morcom Affidavit largely on the basis that she was not the author or recipient of relevant communications, and so her evidence was objectionable. In the 2026 Morcom Affidavit, Ms Morcom clarifies some aspects of the 2025 Morcom Affidavit. Ultimately, the Engineer Defendants and Probuild did not press their objections but maintained that Ms Morcom's evidence is of little, if any, probative value. The Engineer Defendants and Probuild assert that, as the plaintiffs rely only on Ms Morcom's evidence, they have not discharged their onus of establishing privilege for the same reasons, and having regard to the fact that the authors of communications at the time were available but had not provided any evidence of the relevant intentions.
3. The Engineer Defendants submit that:

(a) The MPN Retainers concerned structural engineering matters. Allens was merely a conduit, and any advice given by Allens was not legal advice.[35]

(b) Allens has failed to adduce the best available evidence such as: any letter of engagement between QICP and Allens; any evidence from anyone at QICP as to the terms of the engagement; or any evidence from Mr Pappalardo who had the conduct of the matter in Allens up until about September 2020.

(c) Based on the terms of the Structural Assessment Engagement document and the function called upon by MPN, the Court cannot be satisfied that the report commissioned by Allens is not a document that would have been produced regardless of any purpose of providing legal advice and, therefore, legal advice cannot be said to be its dominant purpose.

(a) Evidence from the maker of the communication will not be conclusive and 'in the usual run of cases, will not even be necessary.'[36] Further, hearsay evidence is admissible[37] and a deponent who lacks knowledge of the circumstances in which the communication is made will not necessarily be fatal.[38]

(b) Ms Morcom is well-placed to depose to relevant matters having regard to the fact that: she has carriage of the matter; is a partner of the law firm which provided legal advice to QICP and the plaintiffs at the relevant time; and has directly acted for the plaintiffs in relation to the Stage 7 Works Engagement since September 2020.

1. In relation to the applicable principles, the plaintiffs also rely on what Daly AsJ said in Setka v Dalton (No 2):

[The] level of detail required to support claims for privilege is very situation specific, and varies according to, among other things, the nature of the proceeding, the number of documents over which privilege is claimed, the number of and roles of the authors and recipients of the documents concerned, and whether the privilege claimed is advice privilege or litigation privilege.[39]

1. I make the following general observations about the challenges to Ms Morcom's evidence:

(a) Allens is a law firm. It is not a building and construction firm, nor is it a firm of engineers, nor an occupational health and safety advisory business. I conclude that, prima facie, the communications it had with MPN, in the circumstances, were for the purposes of providing legal advice in relation to building and construction issues, and their possible consequences, at the Werribee Centre.[40]

(b) Allens has been engaged since March 2019 to provide legal services in relation to the subject matter of this proceeding, which involves complex questions of defects in building and construction, and risks associated with them.

(c) Since Allens was engaged, it is likely that several lawyers have worked on the matter. It appears that up until September 2020, Mr Pappalardo, a partner at Allens, worked on the matter.

(d) Ms Morcom, as a partner with the day-to-day carriage of the proceeding since about September 2020, deposes that she has knowledge of the matters deposed to, save where expressed to be from information and belief. Ms Morcom says she has read the Privilege Documents. Ms Morcom also says that Allens has provided the plaintiffs legal advice in relation to a number of matters, including the matters identified by her in her 2025 affidavit.[41]

1. The Engineer Defendants and Probuild do not suggest that Ms Morcom has not been truthful in her evidence and I accept Ms Morcom's evidence that:

(a) Allens was engaged to provide legal advice to QICP and the plaintiffs;

(b) Allens, in that capacity, engaged MPN to prepare reports for the purpose of providing legal advice; and

(c) documents received by Allens from MPN were provided for the purposes of providing legal advice to Allens' clients.

1. I do not accept that Allens was acting as a 'conduit' between QICP and MPN for the purposes of obtaining reports for non-legal purposes. Ms Morcom has given direct evidence, stated to be from her own knowledge, as to the MPN Retainers and the legal services provided by Allens. As the partner with day-to-day conduct of the matter, it is reasonable to conclude she would have that knowledge based on familiarity with the file, and the evidence in that file of services rendered and fees charged for those services. The failure to produce a written retainer does not warrant a rejection of that evidence.
2. Even if Ms Morcom's direct evidence was rejected, there is a sufficient basis upon which to infer that Allens was engaged by QICP to provide legal services, and that the dominant purpose of the communications was so that Allens could provide legal services, that is, advice to its clients. The circumstances include: the fact that Allens is a law firm; the terms of the retainer letters and instructions; the context within which the reports were commissioned and obtained, being large building and construction issues which are notoriously prone to litigation.[42]
3. This case may be distinguished from Carter Holt Harvey Wood Products v Auspine,[43] where the client engaged an expert independently and thereafter, the lawyers engaged the experts separately for similar purposes. In that case, the Court of Appeal affirmed the decision of the trial judge in holding that the communications between lawyer and expert were not privileged because there were non-legal operational purposes in the relevant communications and the dominant purpose had not been established.[44] In the present case, the plaintiffs engaged Allens to advise them and Allens subsequently engaged MPN; all of the relevant communications between Allens and MPN were generated in that context. Having regard to that context (as well as having read the documents), I am satisfied that the dominant purpose of those communications was the provision of legal advice. In a sense, it may be said that there were other purposes to the relevant communications, but that is only in the sense that there were necessary factual inquiries that underpinned the giving of legal advice.[45] The other purposes were always subordinate to the purpose for which the relevant communications were generated, being the provision of legal advice.

1. It is convenient to deal with each document, or class of documents, as identified in the Updated Privilege Schedule in the order in which the parties did.

1. The plaintiffs say these documents were produced/issued under the Structural Assessment Engagement. The plaintiff has produced redacted versions.
2. The Engineer Defendants submit that neither the terms of the orders, nor principle, permits redactions of retainer letters for relevance, in part because the Court must consider the dominant purpose of the communication and in part because access to the unredacted version is necessary to ensure justice. Although, as the plaintiffs submit, there is no clear indication of precisely what injustice there would be, particularly if, as is asserted, the redacted parts are irrelevant.
3. The plaintiffs submit that the redacted parts of documents 1, 10 and 16 are irrelevant and are not responsive to the August Orders as they are not retainers or instructions for further reports in relation to the Stage 7 Works.[46]

1. Document 1 is a retainer letter dated 23 July 2019 from Allens to MPN.[47] The redacted sentence appears early in the letter under the heading 'Background' which reads:

The properties that QIC wishes to give priority to are the Pacific Werribee Shopping Centre in Werribee, Victoria (Pacific Werribee) and the [... REDACTED ...].

1. Thereafter, the only specific property referred to is 'Pacific Werribee' (that is, the Werribee Centre). Based on Ms Morcom's evidence, it is apparent that the redacted part of the letter refers to a property other than the Werribee Centre.[48] If that is so, then it is difficult to see how, as the Engineer Defendants submit, there can be any injustice in maintaining the redaction. As the rest of the 23 July 2019 letter has been disclosed, there is no sense in which the question of dominant purpose could affect the disclosure of relevant (if it were so) but otherwise privileged information. As a matter of substance, the letter is directed to matters relevant to this proceeding. The reference to property other than the Werribee Centre is by way of background only.
2. I have read document 1 and agree that the redacted part is irrelevant and there is no injustice in the redaction. That being the case, it is an arid exercise to consider whether the orders strictly permit redactions, or whether the redacted parts are not responsive to the orders for production. I decline to make orders for production of a non-redacted version.

1. The plaintiffs no longer make any objection to production.

1. Document 16 is a letter of instruction from Allens to MPN which refers to the retainer letter of 23 July 2019 (document 1) and directs MPN to carry out 'stage 2 site inspection works' for each of the centres.[49] The redaction appears to be of the name of the centre other than the Werribee Centre. Again, Ms Morcom says this is a redaction of irrelevant information.[50]
2. I have read document 16 and agree that the redacted parts are irrelevant and there is no injustice in the redaction. For the same reasons expressed in relation to document 1, I decline to make any order for production of a non-redacted version.

1. No ruling is required on document 2 as the plaintiffs do not claim privilege over it. Document 2 was produced in full and exhibited to the 2025 Morcom Affidavit.[51]

1. Documents 17 (MPN.004.001.0003) and 18 (MPN.004.001.0015) are each described as 'Report from MPN to Allens dated 21 February 2020 - High Risk Items.'
2. Ms Morcom deposes that document 18 is a covering letter dated 21 February 2020 from MPN to Allens, attaching document 17. Document 17 is described as a draft report of MPN's high-risk defect assessments prepared pursuant to the instruction letter dated 25 November 2019 on a confidential basis.[52] Essentially, Ms Morcom says document 18 is a draft report of which a final version was never received.[53]
3. The Engineer Defendants submit that documents 17 and 18 are not privileged or ought to be produced for the following reasons:

(a) First, the claim for privilege is based on what may, at best, be described as very weak evidence, given that it is from Ms Morcom who does not have relevant direct knowledge. I have addressed this broad objection to Ms Morcom's evidence above at paragraph 52.

(b) Second, Ms Morcom's evidence in paragraphs 53(a)-(e) of the 2025 Morcom Affidavit has no probative value because she did not sign the letter of instruction dated 25 November 2019 and has no direct knowledge of the retainer's purpose. It can therefore readily be inferred that the document was prepared for multiple purposes. I disagree with this submission. The purpose of a communication is to be determined from the content of the document understood in its full context.[54] For the same reasons, I reject the submission that Ms Morcom's statement that the choice of language between 'advice' and 'legal advice' is significant, or that it leads to any different conclusion.

(c) Third, the advice given in the covering letter of document 18 is concerned with 'health and safety risks' rather than legal advice. I do not agree. As discussed above, Allens is a law firm, and the ready inference to be drawn from the circumstances is that it engaged MPN for the purposes of providing legal advice. The fact that advice may have been given concerning health and safety issues does not mean that it does not constitute legal advice concerning those health and safety issues. Legal advice about building and construction issues does not become building and construction advice simply because that is the factual background giving rise to the need for the advice.

1. Having regard to the matters discussed in the preceding paragraph, I am satisfied that documents 17 and 18 were prepared for the dominant purpose of providing legal advice and therefore, are privileged. Such an approach is also consistent with the approach taken in Viterra v Cargill.[55] However, for the following reasons, I agree with the Engineer Defendants' further submission that privilege in these documents has been waived.
2. The substance of the plaintiffs' pleas in paragraphs 344 to 353 of the 2026 FASOC is that there were risks associated with the Structural Design Defects[56] and that the plaintiffs took steps to address those defects, and that those steps were reasonable. The plaintiffs specifically rely on reports from MPN regarding the defects and the steps recommended to address those defects. This includes many reports from MPN between 25 September 2019 and 14 May 2021. Documents 17 and 18 are dated 21 February 2020 which falls squarely within the range of dates of reports that MPN provided to the plaintiffs and upon which they explicitly rely to justify their actions and substantiate their claim. They are documents that are relevant to the questions: what were the defects; what steps should be taken; and what steps were in fact taken.
3. It would be inconsistent for the plaintiffs to rely on the reports referred to in the 2026 FASOC but to maintain privilege over other reports relevant to the structural design defects, and the steps that had been, or should have been, taken to rectify or mitigate those defects. The defendants are entitled to form their own conclusions about whether specific advice given in the relevant period was, or should have been, followed. It would also be inconsistent for the plaintiffs to plead that reasonable steps were taken but then claim privilege over documents that would enable the defendants to determine whether those steps were in fact reasonable.
4. For that reason, I am satisfied that the plaintiffs have waived privilege and will be ordered to produce documents 17 and 18.
5. The plaintiffs also submit that the disclosure of draft reports was specifically addressed before Stynes J on 25 July 2025 where her Honour indicated, as a preliminary view, that draft reports would not be required to be produced.[57] Further, the final order does not mention draft reports. Stynes J's views were expressed as preliminary views. Having had the benefit of further argument, and having read the documents, I am satisfied that they should be discovered.

1. Ms Morcom says documents 3, 4, 5 and 6 are duplicate versions of documents MPN.001.001.0804, MPN.001.001.0806, MPN.001.001.0815 and MPN.001.012.0102, and that the latter have already been disclosed under cover of Allens' letter dated 9 December 2025.[58] Ms Morcom says copies of these documents are contained at pages 451 to 456 of CEM-8 of the 2025 Morcom Affidavit. Ms Morcom continues that the claim for privilege is based on the fact that documents 3, 4, 5 and 6:

were attached to a communication between Allens and QICP as agent for the Co-Owners under the Stage 7 Works Engagement in which Allens provided legal advice.[59]

1. As stated above, a copy of a non-privileged document will attract legal professional privilege where the dominant purpose for bringing the copy into existence is to seek or provide legal advice or for use in legal proceedings.
2. The Engineer Defendants submit that copy documents are only privileged if they were brought into existence for the purpose of providing legal advice,[60] that is, purposely attached to such a privileged communication for that purpose.[61] They submit that Ms Morcom was not the author of the communication and so her evidence rises no higher than inadmissible opinion as to those matters. But as discussed above, the question of the dominant purpose of a communication does not depend upon what the author of the communication says, or in fact whether they say anything. As Jessup J held in Asahi Holdings v Pacific Equity Partners, it depends on the circumstances.[62] I observe that if that were not the case, then all of the communications created by a lawyer in advising a client in relation to an ongoing case would be at peril of disclosure if the lawyer was unable, for any reason, to give evidence of intent.
3. I have read documents 3 to 6 and find that, as deposed to by Ms Morcom, they are in the same form as documents MPN.001.001.0804, MPN.001.001.0806, MPN.001.001.0815 and MPN.001.012.0102 disclosed at pages 451-6 of exhibit CEM-8. I have also considered the email under the cover of which documents 3, 4, 5 and 6 were communicated and conclude that documents 3, 4, 5 and 6 were created for the dominant purpose of obtaining legal advice, and are therefore privileged.
4. However, I am satisfied that the plaintiffs have waived any privilege in those reports for the same reasons as expressed in relation to documents 17 and 18. The plaintiffs have relied on assessments performed by MPN in 2020 and 2021 in support of their allegations that the works undertaken were reasonable. That being the case, I consider that it would be inconsistent for the plaintiffs to rely on the matters in paragraphs 344 to 353 of the 2026 FASOC but assert privilege over these documents.

1. I will deal with each of these documents in turn, but broadly speaking, the Engineer Defendants submit that:

(a) Ms Morcom's evidence is 'mere assertion and conclusion' that falls short of the requisite standard;

(b) Ms Morcom's evidence is based only on her review of the documents and is therefore inadmissible opinion and of no probative value;

(c) the descriptions demonstrate that their purpose relates to 'assessment and mitigation of health and safety issues' and therefore the Court cannot be satisfied what the dominant purpose is; and

(d) any privilege has been waived.

1. The plaintiffs broadly submit that the documents are privileged and that a party does not waive privilege for a particular document simply in circumstances in which it has disclosed another document on the same subject.

1. Documents 9 (MPN.001.013.0048), 11 (MPN.001.013.0372) and 19 (MPN.001.001.0713) are reports issued by Mr Harry Ukkola of MPN to Mr Sam Kay of Allens dated 14 February 2020, 5 June 2020 and 27 April 2020, respectively.
2. The plaintiffs submit that, as documents 9 and 19 are draft reports, they are not responsive to the August 2025 Orders.
3. The plaintiffs submit that documents 9, 11 and 19 do not require disclosure in order for the defendants to understand other documents. In particular, the references to a propping incident in MPN.001.001.9361 and MPN.001.013.0373 can be properly understood without reference to document 11. The plaintiffs submit that Probuild does not identify specific documents, other than to make general reference to paragraphs 250(a) and (b) of the 2024 FASOC[63], that cannot be understood without reference to document 9 or 19.
4. Further, the plaintiffs maintain that the references to propping incidents in previously disclosed documents do not waive privilege in documents 11 and 19 simply because they also refer to propping incidents.
5. I have read the documents and am satisfied that they are privileged but also consider that privilege has been waived in each case.
6. The report in document 9 goes to the issue pleaded in paragraph 346(b)(i) of the 2026 FASOC, which alleges that MPN undertook periodic inspection and dilapidation surveys. The particulars to that plea refer to a number of reports in support of the contention that such works were engaged in for the purposes of mitigation and, by extension, that those steps were reasonable. Similarly, documents 11 and 19 are reports that go to the defects and issues facing the plaintiffs in about May 2020 and the assessment and prevention of risks at the site. These are all matters raised on the pleadings. That being the case, I consider that it would be inconsistent for the plaintiffs to rely on the matters in paragraphs 344 to 353 of the 2026 FASOC but assert privilege over these documents. Such inconsistency would be unfair to the defendants as it would leave them with a partial picture of the advices given as to what the risks were and what steps MPN suggested.

1. Document 13 (MPN.002.001.0503) is a letter of instruction from Allens to MPN dated 16 April 2021 in relation to a report from MPN to Allens dated 14 May 2021 prepared under the Stage 7 Works Engagement.
2. Document 20 (MPN.002.001.3589) is a letter of instruction dated 6 July 2021 for the report from MPN to Allens dated 20 September 2021 prepared under the Stage 7 Works Engagement.
3. The plaintiffs submit, in relation to both documents 13 and 20, that privilege has not been waived as the defendants did not assert that the instructions 'influence or underpin' the reports created following the letters of instruction.
4. I have read both documents and am satisfied that the dominant purpose for which they were created is for the provision of legal advice, but I am also satisfied that that privilege has been waived. The letters include a description of the particular 'instructions' being given. I am satisfied that the instructions given, and the reports made in response to those instructions, are each sufficiently related to the issues raised on the pleadings,[64] and the material relied on by the plaintiffs in the 2026 FASOC, that it would be inconsistent for the plaintiffs to maintain privilege over them. The question is not merely whether the privileged documents 'underpin' any report that has been disclosed. The steps taken in mitigation, and by way of rectification, and the advice sought and given in respect of those matters, are all in issue by reason of paragraphs 344 to 353 of the 2026 FASOC.

1. Document 14 (MPN.002.001.1940) is an email dated 5 June 2020 from Allens to MPN containing instructions regarding a report.
2. Document 15 (MPN.002.001.3356) is an email thread, the final email being from Mr Sam Kay of Allens to Mr Phillip Jones, George Perl, and Harry Ukkola of MPN, dated 21 July 2020. Ms Morcom describes the email as:

An instruction from Allens to MPN for a revised report concerning the western retail area of the Pacific Werribee Shopping Centre ... in relation to the letter from MPN to Allens dated 22 July 2020, being MPN.001.001.0806 that was prepared under the stage 7 works Engagement.

1. The plaintiffs submit that document 14 does not require disclosure in order for the defendants to understand other documents. In particular, the references to a propping incident in MPN.001.001.9361 and MPN.001.013.0373 can be properly understood without reference to document 14.[65]
2. The plaintiffs submit that the instructions in document 15 do not 'influence or underpin' the revised report issued by MPN on 22 July 2020. Further, that document itself does not refer to document 15 in which the report was requested.
3. I am satisfied that the dominant purpose for which documents 14 and 15 were created is legal advice. The fact that the communications, from lawyers, seek a report from an engineering consultant in relation to issues that are, or will likely be, the subject of litigation strongly supports the conclusion that the communications were created for the purpose of legal advice. The reason to have lawyers involved in building disputes is not to give non-legal advice, but rather to provide legal services in that context.
4. However, for the same reasons as discussed above, I consider that any privilege over documents 14 and 15 has been waived. The requested reports go to the defects and issues facing the plaintiffs and the assessment and prevention of risks at the site. These are matters squarely in issue in the proceeding. Further, as already discussed, the plaintiffs have relied explicitly on reports in relation to defects and required measures from around this date. That being the case, I consider that it would be inconsistent for the plaintiffs to rely on the matters in paragraphs 344 to 353 of the 2026 FASOC but assert privilege over these documents.
5. The parties are directed to provide draft orders consistent with the reasons including as to costs, if they can be agreed. If the form of orders cannot be agreed, I will hear further from the parties.

WADREN PTY LTD (ACN 005 537 235) IN ITS CAPACITY AS TRUSTEE FOR THE HOPPERS CROSSING UNIT TRUST (ABN 83 405 769 465)

QIC WERRIBEE PTY LTD (ACN 624 121 204) AS TRUSTEE FOR THE QIC WERRIBEE TRUST (ABN 76 994 021 211)

PROBUILD CONSTRUCTIONS (AUST) PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) (ACN 095 250 945)

PACIFIC SHOPPING CENTRES AUSTRALIA PTY LTD (ACN 005 537 244)

KPMG PROPERTY & ENVIRONMENTAL SERVICES PTY LTD (ACN 103 479 992)

[1] The most recently filed Statement of Claim was filed on 5 July 2024 although a Draft Second Further Amended Statement of Claim was served (but not filed) on 23 January 2026. The parties proceeded on the basis that the latter Statement of Claim was the relevant one to have regard to. The relevant paragraphs in the Further Amended Statement of Claim are paragraphs [344]-[356]. There is broad correspondence between paragraphs [344]-[349] of the 2026 FASOC and paragraphs [248]-[252] of the 2024 FASOC. Paragraphs [347], [350]-[355] of the 2026 FASOC are additions that do not appear in the 2024 FASOC.

[2] In this ruling, the term 'Privilege Documents' refers to the 20 documents identified in two different privilege schedules provided by Allens to the defendants. The first privilege schedule provided to the defendants on 10 September 2025 identified 18 documents over which the plaintiffs claimed privilege. Following this, on 9 December 2025, Allens provided the defendants with a revised privilege schedule which listed 13 documents over which the plaintiffs maintained a claim of privilege. Out of the 13 documents, two documents (documents 19 and 20) are additions to the first privilege schedule. The remaining 11 documents are documents over which the plaintiffs either maintain a privilege claim or maintain that the redacted portion of the document redacts irrelevant material. The documents omitted in the revised schedule are documents over which the plaintiffs no longer claim privilege. As explained below, these schedules were provided following orders made by Stynes J in August 2025. At the hearing of this application, the plaintiffs provided the Court with the full list (that is, the 20 documents in toto) of the Privileged Documents. In this ruling, 'Updated Privilege Schedule' refers to this list of 20 documents.

[3] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 8) [2018] VSC 193, [43], [52] ('Cargill v Viterra').

[4] Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49, [52] (Gleeson CJ, Gaudron J and Gummow J) ('Esso').

[5] Affidavit of Corin Eileen Morcom affirmed on 9 December 2025, CEM-8: 73-77 ('2025 Morcom Affidavit').

[7] Ibid [35]-[36], CEM-8: 78-81, CEM-8: 82-91.

[14] See 2024 FASOC [248], [250], [251], [252]; 2026 FASOC [347], [350]-[355].

[15] Affidavit of Andrew Charles Brennan sworn on 28 October 2025, ACB-1: 1-3.

[16] Esso (n 4) [61] (Gleeson CJ, Gaudron and Gummow JJ); Energy Resources Limited v Cactus Wellhead Australia Pty Ltd [No 3] [2025] WASC 100, [89] ('Energy Resources v Cactus Wellhead').

[17] Esso (n 4) [172] (Callinan J), cited in Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47, [6] (Spiegelman CJ) (Sheller JA agreeing); Carter Holt Harvey Wood Products Australia Pty Ltd v Auspine Ltd [2008] VSCA 59, [2] (Maxwell P and Redlich JA) ('Carter Holt v Auspine'); IOOF Holdings v Maurice Blackburn [2016] VSC 311, [47(5)].

[18] Waugh v British Railways Board [1979] UKHL 2; [1980] AC 521, 543 (Edmund-Davies LJ); AWB Ltd v The Honourable Cole (2006) 152 FCR 382, [105].

[19] Barnes v Commissioner of Taxation [2007] FCAFC 88; (2007) 67 ATR 284, [8].

[20] Giurina v Director of Public Prosecutions [2020] VSC 1, [82]; Racing New South Wales v Racing Victoria Ltd (No 2) [2024] NSWSC 312, [14].

[21] Hancock v Rinehart [2016] NSWSC 12, [7] (citations omitted), cited in Berhero Pty Ltd v Senibina Sentral Sdn Bhd [2025] NSWSC 868, [46].

[22] AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30, [47] (citations omitted) ('AWB v Cole').

[23] Energy Resources v Cactus Wellhead (n 16) [93], citing Pratt Holdings Pty Ltd v Federal Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357, [41] (Finn J), [52] (Merkel J), [105] (Stone J).

[24] Energy Resources v Cactus Wellhead (n 16) [94], citing Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 507-509 (Brennan CJ), 544 (Gaudron J), 554 (McHugh J), 571-572 (Gummow J), 587, 590 (Kirby J) ('Propend Finance').

[25] New South Wales v Betfair (2009) 180 FCR 543, [54].

[26] Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118; (2018) 58 VR 333, [74] ('Viterra v Cargill'). The Court cited the alternative tests as 'centrality', 'all relevant communications' and 'materially affecting or contributing to'. The trial judge in Viterra (see [28]) had proceeded on the basis that '[t]he confidential communication has to be sufficiently central to the issue that the content of the communication is necessarily opened up by the assertion of the issue.'

[27] Viterra v Cargill (n 26) [76].

[28] GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266, [57].

[29] Bradford v Devlot 17 Pty Ltd (No 3) [2021] VSC 368, [236], [240].

[32] Affidavit of Corin Eileen Morcom affirmed on 27 January, [23] ('2026 Morcom Affidavit').

[34] 2025 Morcom Affidavit (n 5) [28]-[48].

[35] Each of the defendants clarified that they did not suggest Ms Morcom had engaged in any misconduct, rather it was a case of her failing to discharge the onus.

[36] Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd [2013] FCA 998, [38] ('Asahi v Pacific Equity').

[37] Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 43.03(2) ('Rules'); Evidence Act 2008 (Vic) s 75.

[38] Setka v Dalton (No 2) (Legal Professional Privilege) [2021] VSC 604, [74]-[75].

[40] See AWB v Cole (n 22) [45]-[47].

[41] 2025 Morcom Affidavit (n 5) [28]-[48].

[42] See AWB v Cole (n 22) [45]-[47].

[43] Carter Holt v Auspine (n 17) [4]-[7].

[45] See AWB v Cole (n 22) [45]-[47].

[46] 2025 Morcom Affidavit (n 5) [51]-[52].

[49] Affidavit of Andrew Charles Brennan sworn on 24 December 2025, ACB-2: 143.

[50] 2025 Morcom Affidavit (n 5) CEM-8: 73-77.

[52] 2026 Morcom Affidavit (n 32) [27]-[30]. 2025 Morcom Affidavit (n 5) CEM-8: 437-9.

[53] 2026 Morcom Aff (n 32) [30]; 2025 Morcom Affidavit (n 5) CEM-8: 440-450.

[54] Asahi v Pacific Equity (n 36) [38]. See discussion in Viterra v Cargill (n 26) [66].

[55] Viterra v Cargill (n 26) [64], [76].

[56] Those being the defects associated with the Stage 7 Works: see 2026 FASOC, [343].

[57] 2026 Morcom Affidavit (n 32) [12], CEM-9: 108; Transcript 25 July 2025, 66:11-12.

[58] Document 3 (MPN.001.001.0825). Document 4 (MPN.001.001.0826). Document 5 (MPN.001.001.0827). Document 6 (MPN.001.001.0828).

[59] 2026 Morcom Affidavit (n 32) [34].

[60] The Engineer Defendants cite Propend Finance (n 24) 501_._

[61] Cargill v Viterra (n 3) [32]-[36]; Kamasaee v Cth (No 2) (LPP Ruling) [2016] VSC 404, [43]-[47].

[62] Asahi v Pacific Equity (n 36) [38]. See also Cargill v Viterra (n 3).

[63] Correlates roughly to 2026 FASOC, [346(a)-(b)].

[65] Updated index document 29 (MPN.001.001.9361) 'Site Inspection 10 - dated 29 May 2020' is MPN's report to Otto of the 'propping to the Lower Ground and Ground Floors, and the exclusion areas to the Ground and Level 1 floors, on the 29th of May 2020'. Updated index document 53 (MPN.001.013.0373) is a letter from MPN to Mr Kay of Allens dated 13 August 2020 with the subject 'Recommended Reinspection of Frequency of Installed Temporary Props'.