PRACTICE AND PROCEDURE - E-trial - Public access to court book and documents on monitors in courtroom - Confidentiality - Whether necessary for the administration of justice that public access to the documents be restricted during the course of the trial - Principles of transparency, open justice and facilitating the fair reporting of proceedings considered - Confidentiality regime for documents admitted into evidence referred to the trial judge - Confidentiality of discovered documents not yet tendered into evidence to be maintained - Hogan v Australian Crime Commission

PRACTICE AND PROCEDURE - Discovery - Delay - Subsequent application after earlier application dismissed by consent after extensive argument and numerous rulings - Applicable principles - Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170 considered - No estoppel or abuse of process - Case management principles - Civil Procedure Act 2010 (Vic) - Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 considered - Liu v The Age Company Limited [2016] NSWCA 115 distinguished - Inappropriate to put a time limit upon when parties can challenge claims to legal professional privilege - Application allowed to proceed.

1 The trial of this proceeding commenced on 30 May 2016. The trial is an electronic trial, with all parties and the trial judge having access to an electronic court book, and the public being able to view documents referred to in addresses and evidence on large monitors in the court room. On 18 May 2016, the Oswal parties issued a summons seeking production and inspection of documents from the ANZ parties, the Yara parties, and the Apache parties, returnable on 10 June 2016 (a nonsitting day during the trial).[1]

2 On 31 May 2016, the Apache parties raised concerns with the trial judge about protecting the confidentiality of certain documents discovered by them, including, but not limited to, the new GSA, and certain documents ordered to be produced on 4 May 2016 (the thirteen gas supply agreements which were the subject of my order on 3 March 2016, which was in turn upheld on appeal). An interim position was reached whereby during the course of the opening of senior counsel for the Oswal parties, when the new GSA was referred to, the public monitors showing the documents were switched off, and senior counsel for the Oswal parties made no reference to the terms of the new GSA. The Apache parties sought to extend this protocol to a number of classes of documents for the duration of the trial. The application was referred to me by the trial judge, and was heard on 10 June 2016.

3 The classes of documents identified by the Apache parties are as follows:

(a) copies of any current gas sales agreements (including the new GSA) including draft agreements and term sheets;

(b) documents referring to the terms of the new GSA dealing with pricing, volume, or duration/term; and

(c) copies of documents filed in the GSA proceeding ('alleged Confidential Documents').

4 The proposed protocol involves making an order that access to and use of the online court book being restricted to the parties, their legal teams, and the Court (arguably this is unnecessary given the terms of paragraph 20 of the orders made by Sifris J on 31 March 2016), and the Apache parties providing a list of alleged Confidential Documents to NuLegal (the electronic trial operators) to enable NuLegal to make appropriate notations in the electronic court book. Upon the document ID of an alleged Confidential Document being read in open court, the NuLegal operator will switch off the public and media display monitors, and counsel, in referring to or asking questions about the alleged Confidential Documents, may not read into the court record the specific wording of any clause of a gas contract, or refer to the specific price, volume, or duration of a gas contract. However, the proposed protocol would not prevent counsel from asking questions about or referring to the effect of clauses of any gas supply agreement.

5 At the hearing of the application, carriage of the application was assumed by Quadrant NorthWest Pty Ltd and Quadrant Energy Australia Ltd ('Quadrant parties'), the Apache parties having sold its Australian gas supply operations to the Quadrant parties in 2015.

6 The application is opposed by the Oswal parties on the basis that:

(a) the new GSA, and the commercial consequences of the new GSA in comparison with the terms of the old GSA, are central to the issues in the proceeding. Any restrictions upon counsel's ability to refer to the new GSA may impede the presentation of the Oswal parties' ability to properly present and run their case;

(b) the documents said by the Quadrant parties to warrant protection have not been specifically identified. The proposed protocol gives the Quadrant parties and the Apache parties the right to unilaterally determine which documents are confidential, in the absence of any evidence which descends to the specific prejudice to be suffered by the Quadrant parties arising out of the disclosure of those documents;

(c) the submissions and authorities relied upon by the Apache parties and Quadrant parties indicate that they have sought to impermissibly conflate the principles governing the determination of what confidentiality regime might apply to discovered documents prior to trial, and those governing the presentation of evidence at trial, which are materially different; and

(d) given that the proposed protocol seeks to restrict the manner in which the documents are presented in Court, there is insufficient evidence to establish whether it is necessary for the administration of justice for the presentation of any particular documents, or any class of documents to be restricted. The authorities provide that, given the principles of open justice, it is not sufficient that it be merely 'convenient, reasonable or sensible' to make the orders sought by the Apache and Quadrant parties.[2]

7 The Quadrant parties' submissions in support of the proposed protocol can be summarised as follows:

(a) commercial confidentiality is recognised as a legitimate exception to the principle of open justice;

(b) the evidence supports the conclusion that the confidentiality of commercial terms of gas supply agreements, including but not limited to price, volume and duration, are zealously protected by participants in the market for gas produced in Western Australia, and this has been recognised by the terms of the gas supply contracts themselves, and the seeking and making of court orders in other proceedings which protect the confidentiality of these classes of documents;

(c) disclosure of the terms of the gas supply contracts will damage the commercial interests of the Quadrant parties, by providing competitors and potential customers with an unfair negotiating advantage in their future dealings with the Quadrant parties;

(d) in the absence of any order for confidentiality, members of the public would have greater access than usual to the contents of the alleged Confidential Documents, because the documents would be displayed on monitors rather than simply being shown to witnesses and provided to the Court in hard copy form; and

(e) the proposed protocol provides a means by which the alleged Confidential Documents can be protected without having the trial being disrupted by the need for the trial judge to rule on a document by document basis.

8 In determining the question of what confidentiality protocol, if any, should apply to the alleged Confidential Documents, I have had regard to the following matters and propositions:

(a) when it comes to documents which have been discovered in a proceeding, it is not unusual for regimes to be put in place to protect the confidentiality of commercially sensitive documents;

(b) the authorities illustrate that it is not always necessary for the evidence to descend to document by document analysis in order to establish the necessary degree of satisfaction to justify imposing additional protections for discovered documents;

(c) however, the position is different when it comes to documents which have been admitted into evidence. While there is no dispute that the Court is empowered to restrict disclosure of and discussion about the contents of documents which have been admitted into evidence, the Court must only do so if it is satisfied that it is necessary for the administration of justice to do so. The term 'necessary' implies that limitations on the manner in which evidence is presented in Court will not be imposed lightly;

(d) the principles of transparency, open justice, and facilitating the fair reporting of court proceedings are relevant, and indeed weighty, considerations in determining whether the confidentiality of documents admitted into evidence ought to be protected. However, such considerations are of no real significance when it comes to documents which have been discovered by the parties, but have not and may never be admitted into evidence given that the implied obligation upon parties with respect to discovered documents of itself would ordinarily prevent disclosure of documents obtained by way of discovery to nonparties; and

(e) in the absence of any application to vacate or vary paragraph 20 of the orders made by Sifris J on 31 March 2016, any regime with respect to the confidentiality of documents, particularly in the context of an electronic trial, should avoid conflicting with or undermining those orders.

9 I am satisfied that the evidence relied upon by the Quadrant parties is sufficient to establish the need for a protective regime for documents in the court book which fall within subparagraphs 1(a) and (b) of the Quadrant parties' proposed minute of orders, save for those documents which have already been admitted into evidence. As for the documents in sub-paragraph 1(c), being the documents filed in the GSA proceeding, there is no evidence before me as to why those documents warrant protection, apart from the fact that many years ago a judge of another court held that those documents ought remain confidential. I note that the Quadrant parties have now conceded that the old GSA, which was the subject of the GSA proceeding, may be presented in open court without restriction. The GSA proceeding was settled in early 2011, more than five years ago.

10 As for the documents which have been admitted into evidence during the course of the opening address on behalf of the Oswal parties, and in particular, the new GSA, the determination of whether the contents of the documents ought remain confidential ought to be a matter for determination by the trial judge. I would be reluctant to usurp the trial judge's function of determining the manner in which evidence is ultimately presented in Court. Not only is the admission of evidence and presentation of evidence a critical aspect of the conduct of the trial, the trial judge is uniquely placed to determine whether the maintenance of the confidentiality of the documents is necessary for the administration of justice, not only in terms of the presentation of evidence in Court, but also as to what extent the contents of the documents need to be disclosed for the purpose of explaining her reasons in her judgment.

11 Given the principles of open justice, and the need for any suppression of evidence to be 'necessary for the administration of justice', it is also arguably an issue which could not be resolved by consent between the parties, but rather, the trial judge would need to be independently satisfied of the need to maintain the confidentiality of the contents of any document tendered into evidence. Finally, while I could form a tentative view about the significance of documents such as the new GSA to the issues in the proceeding based upon my knowledge of the issues in the proceeding, my knowledge of the issues is necessarily limited: it has only been acquired for the purpose of and as an incident of determining a series of discrete applications concerning discovery and privilege. It is the trial judge who will be seized with the totality of the issues and the evidence in the trial.

12 Given my remarks above, it is not necessary for me to rule upon how the new GSA is to be dealt with, although my preliminary view is that the evidence would need to descend to a greater level of particularity with respect to the potential damage to the Quadrant parties of the public disclosure of the new GSA to form a view that it is necessary for the administration of justice that the contents of that document remain confidential, particularly given that it was entered into over five years ago, in a particularly unusual context (being the circumstances and events which are the heart of this proceeding), and given the centrality of the terms of the new GSA to the value of the Oswals' shares in Fertilisers.

13 Returning to the treatment of the documents in the court book which have not been tendered in evidence, as noted above, the evidence relied upon by the Quadrant parties is sufficient to warrant a regime by which any document which falls into categories 1(a) and (b) should at least be protected from disclosure unless and until it is tendered into evidence. I cannot see how such an interim regime can prejudice the parties, given that there is no limitation amongst the parties as to who can have access to the documents.

14 However, the protocol ought to be modified in order to address the following considerations:

(a) the other parties ought to be on notice of which documents in the court book are the subject of a claim for confidentiality by the Quadrant parties; and

(b) The Quadrant parties (and the Court) ought to be on notice that another party will seek to tender a protected document into evidence, to provide the Quadrant parties (and possibly third parties) with the opportunity to apply to the trial judge for orders that the evidence not be presented in open court.

15 I appreciate that such a protocol may not achieve one of the objectives sought to be advanced by the Quadrant parties, that is, to avoid the need for the trial to be interrupted by disputes about individual documents. However, given the issues at stake in determining applications of the nature advanced by the Quadrant parties, that may be impossible to avoid. However, it may well be that once the alleged Confidential Documents are identified with precision, only a handful will be identified as being likely to be tendered into evidence, and it may well be that some of these documents can be dealt with on a 'class' basis rather than a document by document basis, say, for example, current gas supply contracts other than the GSA.

16 Subject to any suggestions by the parties as to the details of the proposed protocol, I propose to order that, subject to any direction of the trial judge, the following protocol be put in place with respect to alleged Confidential Documents which are in the court book but which have not yet been tendered into evidence:

(a) until further order, access to and use of the online court book shall be restricted to the parties, their solicitors and counsel, and the Court;

(b) the Quadrant parties shall provide a list of any documents over which it seeks to exclude from presentation in Court (for the avoidance of doubt, to be limited to documents falling within paragraphs (1)(a) and (b) of the Apache parties and Quadrant parties' proposed minutes of orders) ('Confidential Documents') to NuLegal and the other parties by 4.00pm on 27 June 2016;

(c) NuLegal shall identify the Confidential Documents by appropriate notation in the online court book;

(d) by 4.00pm on 4 July 2016, any party notify that solicitors for the other parties whether they intend to seek to tender any of the Confidential Documents into evidence at trial;

(e) the question of how any Confidential Documents which are identified as likely to be tendered into evidence be presented in Court be reserved to the trial judge for determination, not before 11 July 2016; and

(f) if, during the course of the trial, a party determines that it wishes to tender a Confidential Document which has not previously been notified in accordance with (d) above, it provide seven days' notice of its intention to do so to the other parties.

1 This ruling concerns paragraphs 1 to 3 inclusive of Mr Oswal's summons filed 20 May 2016 ('20 May summons'). Mr Oswal seeks that:

(a) the Apache parties discover and produce for inspection all gas supply contracts entered into by any one of them or any related entity for the supply of gas in Western Australia between January 2006 and November 2011;

(b) the Apache parties produce for inspection the documents listed in Schedule 1 to the 20 May summons, being documents which have been discovered by the Apache parties, are subject to a claim for legal professional privilege, and are communications between Mr Anthony Lannie, the in-house counsel for the Apache parties at the relevant time, and other employees of the Apache parties who were not lawyers ('Lannie documents');

(c) the Apache parties produce for inspection ten documents listed in Schedule 2 of the summons, being documents discovered pursuant to paragraph 2(a) and (b) of my orders of 3 March 2016 which are the subject of a claim for legal professional privilege by the Apache parties ('disputed documents');

(d) the Apache parties discover and/or produce for inspection any document that records an opinion as to whether the GSA was field specific or as to Apache Northwest Pty Ltd's prospects in the GSA proceeding; and

(e) the Apache parties produce for inspection any other documents discovered by them prior to 4 May 2016 that are within the terms of paragraph 2 of the orders made on 3 March 2016.

2 The documents in (a) above are said to be relevant to enable Mr Oswal to test the evidence of the expert engaged by the Apache parties in support of their claim for damages against Mr Oswal for deceit and conspiracy. The Apache parties' expert, Mr Houston, makes estimates of the damage suffered by Apache for not terminating or avoiding the GSA by reason of the conduct of the Oswal parties based upon publicly available data about gas prices, which Mr Houston concedes is incomplete. Mr Oswal contends that, by reason of the manner in which the gas industry operates, the use of publicly available data is likely to inflate Apache's damages claim, and as such, the actual contracts entered into by the Apache parties are directly relevant to assessing Apache's damages claim.

3 The Apache parties do not consent to the making of an order for discovery of these documents, but made no submissions in opposition. I agree that the documents sought are directly relevant to the issues in the proceeding, and ought to be discovered. Any concerns Apache may have concerning the confidentiality of the contents can be addressed by the confidentiality protocol established by my orders of 17 June 2016.

4 As for the Lannie documents, a preliminary question arises as to whether, owing to the delay on the part of Mr Oswal in making the application, in the context of a like application by Mrs Oswal having previously been made and not pursued,[3] I ought even entertain the application. As to some extent the determination of the question of whether the Apache parties ought to be forced to revisit their discovery at this late stage may be at least partially influenced by the determination of the applications referred to in (c) and (e) above ('waiver application'), which arise out of Mr Oswal's contention that the Apache parties have waived any claim for legal professional privilege in the disputed documents, I will deal with the issues raised in what might be described as the 'Lannie application' at the end of these reasons. Finally, the application for the documents in subparagraph (d) seeks to, in effect, extend the scope of the orders made on 3 March 2016 beyond documents which were relied upon by the Apache parties to form the opinions referred to in in paragraphs 20A and 20B of its defence and counterclaim dated 23 July 2014, to documents which record any opinion as to whether the GSA was field specific or as to Apache North West Pty Ltd's prospects in the GSA proceeding (presumably, regardless of whether the Apache parties actually relied upon that opinion). If I were to accede to Mr Oswal's application in that regard, there then might be further debate as to whether, if I also agreed with Mr Oswal's contentions in the waiver application, whether any such waiver would extend to overcome any claim for legal professional privilege in these documents.

5 Turning first to the waiver application, I detected no dispute between the parties as to the relevant legal principles, but rather, the application of those principles to the matter before me. It is clear on the authorities, that a privilege holder, by expressly or impliedly putting in issue their state of mind in their pleadings (and also by reason of other conduct), may have acted inconsistently with the maintenance of any confidence in any legal advice which might have informed that state of mind.[4] Further, the authorities emphasise that 'it is the privilege holder's conduct that effects waiver'.[5]

6 I agree with the submissions of senior counsel for the Apache parties that my earlier finding that the pleadings made the disputed documents relevant to the issues in the proceeding is not determinative of the matter. The question of relevance is to be determined upon the face of the pleadings, which was what troubled me in the past about the Apache parties' contentions that I ought not order discovery because the Oswal parties' allegations that the Apache parties had engaged in misleading and deceptive conduct were untenable. However, the determination of the question of relevance is not influenced, at least to any great degree, by which party put the matter in issue in their pleadings, although it might influence the discretion with respect to the scope of any discovery. But the question of which party actually put the matter in issue is central to the determination of whether a privilege holder has acted inconsistently with the maintenance of the privilege. As stated by Dixon AJA in Vic Hotels:[6]

I doubt that it is open to another party to litigation to force waiver of a party's legal professional privilege by making assertions about, or seeking to put in issue, that party's state of mind ...

7 Allsop J (as he then was) made remarks to a similar effect in Intertan,[7] where he stated that:

The act of mere denial by the respondents of an assertion by the applicants is not an act by the respondents which expressly or impliedly makes an assertion about the contents of any privileged communication or necessarily lays such communication open to scrutiny.

8 The dispute between the parties in the current application is whether the Apache parties put their state of mind in issue such as to act inconsistently with the maintenance of legal professional privilege by the terms of paragraphs 20A and 20B of their defence and counterclaim. The Apache parties contend that it is Mr Oswal, not the Apache parties, that put the Apache parties' state of mind in issue by their pleading of misleading and deceptive conduct. The relevant part of Mr Oswal's pleading is reproduced below:

20A By issuing the Apache Force Majeure Notice, by failing to withdraw the whole of the Apache Force Majeure Notice and in sending the 22 December 2010 letter (together the 'Apache Northwest Conduct'), Apache Northwest conveyed the following unqualified representations ('Representations'):

(a) Apache Northwest, Tap and Kufpec had no obligation to supply gas to YPFPL under the GSA from areas outside the Harriet Field;

(b) that the fact there was insufficient gas in the Harriet Field to supply YPFPL as required under the GSA constituted an act of force majeure; and

(c) the Apache Force Majeure Notice was valid.

Particulars of (a) to (c)

(i) The Representations are express and implied.

(ii) To the extent they are express, they are in writing and contained in the Apache Force Majeure Notice and the 22 December 2010 letter.

(iii) To the extent the Representations are implied, they are to be implied from the GSA, the Apache Force Majeure Notice, the failure of Apache Northwest to withdraw the whole of the Apache Force Majeure Notice and the 22 December 2010 letter.

(iv) Further particulars may be provided prior to trial.

20B In and from at least July 2011, Apache Energy conducted meetings and discussions with Stage 2 Bidders on behalf of Apache Northwest and Apache Corp in relation to a potential settlement of the GSA proceeding and entry into a new gas sale agreement, in which Apache Energy:

(a) offered (on behalf of Apache Northwest and Apache Corp) to compromise the GSA proceeding on terms that a new gas sale agreement be entered into with Apache Energy for gas at USD $2/GJ until July 2015, USD $5/GJ for the next five years to July 2020, gas capped at 87TJ/day and no gas thereafter;

(b) asserted that the GSA proceeding would be resolved in favour of Apache Corp and Apache Northwest, resulting in the effective termination of the GSA; and

(c) did not qualify, withdraw or resile from the Apache Northwest Conduct or the representations,

(together, the 'Apache Energy Conduct').

Particulars

(i) The meetings and discussions occurred in around July 2011 between representatives of Apache Energy (on behalf of Apache Northwest and Apache Corp) and representatives of the Stage 2 Bidders (except for Apache Energy). At various of those meetings, Apache Energy offered to compromise the GSA proceeding on terms that a new gas sale agreement be entered into with Apache Energy for gas at USD $2/GJ until July 2015, USD $5/GJ for the next five years to July 2020, gas capped at 87TJ/day and no gas thereafter [SAL.001.008.3866; ANZ.603.105.3874], an offer that was 'so un-commercial' that it effectively prevented other bidders from making binding, unconditional bids for the Shares (CFLA.001.001.0936]. At no stage during any of those meetings did Apache Energy qualify, withdraw or resile from the Conduct or the Representations. Instead, Apache Energy adopted the Conduct and the Representations to further its own purposes and those of the Apache group of companies.

(ii) In a meeting with representatives of Orascom in around July or August 2011, a representative of Apache Energy said words to the effect that its legal dispute with YPFPL would be resolved in Apache's favour, resulting in the effective termination of the GSA [SAL.010.004.1920].

(iii) Discussions between Sinofert and Apache Energy in around July were referred to in Flagstaff Partners document dated 21 July 2011 entitled 'Project O - Second Round Offer Clarifications Discussion with Sinofert' which states that 'The uncertainty regarding the GSA was too great a risk for Sinofert to accept and without resolution of this dispute, they would be unable to contemplate providing a final bid for this business... recent discussions with Apache indicate that Apache were proposing a settlement that would adversely affect the value of the business for ANZ/PPB such that the value implied by Sinofert's bid on this basis would be a fraction of what was required to be recovered (i.e. London offer)' [SAL.010.004.1696].

20C By engaging in the Apache Energy Conduct, Apache Energy conveyed the Representations.

Particulars

Pankaj repeats the particulars to paragraph 20B.

20D Each of:

(a) the Apache Northwest Conduct;

(b) the Apache Energy Conduct; and

(c) the Representations,

was misleading or deceptive or likely to mislead or deceive in that they were false, inaccurate, incorrect as:

(d) Apache Northwest, Tap and Kufpec were obliged to supply gas to YPFPL under the GSA from areas outside the Harriet Field;

(e) the fact there was insufficient gas in the Harriet Field to supply YPFPL as required under the GSA did not constitute an act of force majeure; and

(f) the Apache Force Majeure Notice was invalid.

20E Further or alternatively, by reason of the matters set out in paragraphs 20A to 20C above, each of Apache Northwest and Apache Energy represented that it had a reasonable basis for making the Representations ('Basis Representation').

20F At the time of making the Representations and the Basis Representation, each of Apache Northwest and Apache Energy was or ought to have been aware:

(a) of the express terms of the GSA, which had the features pleaded in paragraph 10O(i) above;

(b) of the terms that are usually included in a field depletion contract (ie, a contract only for the supply of such gas as remained in or could be extracted from a specific field), including the terms pleaded in paragraph 10O(i) above, and of the fact that such terms were absent from the GSA;

(c) that Apache Northwest, Tap and Kufpec were obliged to supply gas to YPFPL under the GSA from areas outside the Harriet Field;

(d) that the fact there was insufficient gas in the Harriet Field to supply YPFPL as required under the GSA did not constitute an act of force majeure; and

(e) that the Apache Force Majeure Notice was invalid.

Particulars of (a) to (c)

(i) The matters set out in paragraphs (a) and (c) were obvious on the face of the GSA.

(ii) At the time of making the Representations and the Basis Representation, Apache Northwest and Apache Energy were experienced operators in the gas supply industry and must have been familiar with the terms usually present in a field depletion contract.

Particulars of (d) to (e)

(iii) These matters were obvious from the matters set out in paragraphs (a) to (c), and Apache Northwest and Apache Energy must have been aware of them. Further and alternatively, Apache Northwest and Apache Energy's knowledge of these matters is to be inferred from the following matters.

(iv) Before the GSA was executed, Apache Energy (acting on behalf of Apache Corp and Apache Northwest) provided the Letter of Comfort pleaded at paragraph 10H [PPB.012.010.6186], which relevantly stated that 'wholly owned subsidiaries of Apache Energy were participants in a number of other joint ventures in respect of other gas fields [ie, outside the Harriet Field], the uncontracted proven reserves for which totalled 607PJ'. This statement is inconsistent with a belief that:

(A) the GSA required Apache Northwest to supply gas only from the Harriet Field;

(B) the fact there was insufficient gas in the Harriet Field to supply YPFPL as required under the GSA constituted an act of force majeure;

(C) that the Apache Force Majeure Notice was valid.

20G By reason of the matters pleaded in paragraph 20F above, each of Apache Northwest and Apache Energy did not have a reasonable basis for making any of the Representations or the Basis Representation.

20H By reason of the matters pleaded in paragraphs 20F to 20G above, the Basis Representation was misleading or deceptive or likely to mislead or deceive.

9 In their defence and counterclaim the Apache parties responded as follows:

20A In response to paragraph 20A, they:

(a) admit that Apache Northwest:

(i) issued the Apache Force Majeure Notice [SAL.102.001.0249];

(ii) did not withdraw the whole of the Apache Force Majeure Notice; and

(iii) sent the 22 December 2010 Letter [SAL.102.001.0254];

(b) say further that:

(i) any representations conveyed by Apache Northwest were not representations of fact and were no more than contentions of Apache Northwest's opinion as to the extent of its obligations under the GSA in the circumstances described in the Apache Force Majeure Notice;

(ii) the conduct pleaded in paragraph 20A of the third further Amended statement of claim is not actionable conduct under section 52 of the Trade Practices Act 1974 (Cth) ('the TPA'), section 18 of the Australian Consumer Law ('the ACL') or at general law;

(iii) accordingly, the allegations in paragraph 20A fail to disclose a cause of action and are embarrassing; and

(iv) at trial they will rely on the full terms and effect of the Apache Force Majeure Notice and the 22 December 2010 Letter; and

(b) otherwise deny every allegation in paragraph 20A.

20B In response to paragraph 20B, they:

(a) say that:

(i) any conduct engaged in by Apache Energy did not give rise to representations of fact and were no more than contentions of Apache Energy's opinion as to the extent of Apache's Northwest's obligations under the GSA in the circumstances described in the Apache Force Majeure Notice and as to the outcome of the GSA Proceeding [SAL.102.001.0254];

(ii) the conduct pleaded in paragraph 20B of the third further amended statement of claim is not actionable conduct under section 52 of the TPA, section 18 of the ACL or at general law; and

(iii) accordingly, the allegations in paragraph 20B fail to disclose a cause of action and are embarrassing; and

(b) otherwise deny every allegation in paragraph 20B.

20C They deny every allegation in paragraph 20C and they further refer to and repeat paragraphs 20A and 20B above.

20D They deny every allegation in paragraph 20D and they further refer to and repeat paragraphs 20A and 20B above.

20E In response to paragraph 20E, they:

(a) deny that the conduct of Apache Northwest and Apache Energy, in the circumstances pleaded in paragraphs 20A and 20C of the third further amended statement of claim, conveyed any representation, whether express or implied;

(b) say further that:

(i) the conduct pleaded in paragraph 20E of the third further amended statement of claim is not actionable conduct under section 52 of the TPA, section 18 of the ACL or at general law; and

(ii) accordingly, the allegations in paragraph 20E fail to disclose a cause of action and are embarrassing; and

(c) otherwise deny every allegation in paragraph 20E.

20F In response to paragraph 20F, they:

(a) say that the allegations in paragraph 20F are embarrassing because they fail to differentiate between the matters about which it is alleged Apache Northwest and Apache Energy were aware, on one hand, and the matters about which it is alleged Apache Northwest and Apache Energy ought to have been aware, on the other;

(b) say further that the allegations in paragraph 20F fail to disclose a cause of action and are embarrassing and further refer to and repeat paragraphs 20A, 20B and 20E above; and

(c) otherwise deny every allegation in paragraph 20F.

20G In response to paragraph 20G, they:

(a) say that the allegations in paragraph 20G fail to disclose a cause of action and are embarrassing and further refer to and repeat paragraphs 20A, 20B, 20E and 20F above; and

(b) otherwise deny every allegation in paragraph 20G.

20H In response to paragraph 20H, they:

(a) say that the allegations in paragraph 20H fail to disclose a cause of action and are embarrassing and further refer to and repeat paragraphs 20A, 20B, 20E and 20F above; and

(b) otherwise deny every allegation in paragraph 20H.

10 The question of whether a party has, by the manner in which it has pleaded its case, put in issue documents for which it otherwise has an unimpeachable claim for legal professional privilege is to be approached with some degree of caution, even trepidation, given the significance of legal professional privilege as a substantive legal right. It is with this in mind that I have come to the view that by pleading that the matters alleged in paragraphs 20A and 20B of Mr Oswal's statement of claim were 'no more than contentions of opinion' as to the extent of its obligations under the GSA in the circumstances described in the Apache Force Majeure Notice and the outcome of the GSA proceeding ('relevant opinions'), the Apache parties have put in issue first, the question of whether in fact it held the relevant opinions, and secondly, whether there was a basis for those opinions, and by reason of that and other matters discussed below, has acted inconsistently with the maintenance of the privilege in the disputed documents.

11 In reaching this conclusion, a significant matter I have had regard to is the fact that the Apache parties rely heavily, albeit not exclusively, on its assertion that its statements were merely contentions of its opinion to support their contention that the statements made by it in respect of their obligations under the GSA agreement and its prospects of success in the GSA proceeding are not actionable at law. They did so in their submissions before Sifris J in opposition to the Oswal parties' application to join them as parties to the proceeding, relying upon the statements of the Full Federal Court in Global Sportsman Pty Ltd v Mirror Newspapers Ltd,[8] and those submissions found favour with his Honour. In consenting to the amendment of the statement of claim in April 2014, they maintained their position that there were deficiencies in the Oswal parties' pleadings. The Apache parties relied upon their contention that the relevant opinions are not actionable as the major basis of opposition to Mrs Oswal's application for discovery during the hearing on 18 December 2015. The fact that, by reason of their own tactical decisions in 2014, and the approach of the then trial judge to case management in 2016, their contention that the Oswal parties' claim that the Apache parties have engaged in misleading and deceptive conduct has no real prospect of success has not been determined summarily does not alter the fact that the Apache parties have sought to deploy, and no doubt will continue to deploy, their contention that the relevant statements are mere opinion in the pursuit of their perceived forensic advantage.

12 The fact that a party has sought to make contentions which are informed by, or are likely to be informed by, legal advice to its forensic advantage often arises in cases of 'disclosure waiver', where under the common law the focus of the inquiry is whether, given the direct or indirect disclosure of the contents of legal advice, the conduct of the privilege holder in deploying the substance of the legal advice to its forensic advantage is inconsistent with its maintenance of the privilege.[9] However, the conduct of a party in putting its state of mind in issue for the purpose of obtaining a forensic advantage also goes to the question of inconsistency in cases of 'issue waiver'. In Intertan, Alsop J makes express reference to a finding of inconsistent conduct being 'informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication'.[10] Further, in Vic Hotels,[11] Dixon AJA stated:

Further, to the extent that inconsistency in the conduct of a privilege holder may be informed partly by forensic unfairness in allowing a claim to proceed without the disclosure of the privileged communication, I am persuaded that the inconsistency in DC Payment's conduct can be more readily seen through that prism.

13 Of course the question of whether forensic unfairness arises out of any maintenance of the privilege only arises if it is determined that it was the Apache parties, not Mr Oswal, that put the Oswal parties' state of mind in issue. Mr Oswal submits that he makes no reference to, or otherwise puts in issue, the Apache parties' state of mind in paragraphs 20A and 20B of its statement of claim. He simply asserts that by issuing the Force Majeure Notices and the letter of 2010, and in making certain statements to prospective bidders for the Oswal parties' share in Holdings, the Apache parties were making certain representations. Indeed, the Oswal parties' position is that, by reason of the decision of the majority of the High Court in Forrest v ASIC,[12] the question of whether a representation in a statement is a representation of fact or opinion is largely immaterial to determining liability for misleading and deceptive conduct. No reference was made to the Apache parties' opinion in paragraphs 20A and 20B of the statement of claim to which the Apache parties respond in paragraphs 20A and 20B of their defence, and the pleading of the matters in paragraphs 20E and 20G of its statement of claim was only introduced to address the criticisms made of the pleading made by the Apache parties, as adopted by Sifris J in his ruling of 22 November 2013.

14 I agree with the submissions advanced on behalf of Mr Oswal. The question of whether the characterisation of the relevant statements of the Apache parties as opinions, on the one hand, relevant to the manner in which the Oswal parties' claims are heard and determined, or on the other hand, is of itself, determinative of the matter in favour of the Apache parties, is ultimately a matter for trial. In the meantime though, it is the Apache parties that have put in issue their holding of the relevant opinions, as they have done so, as Sifris J observed, 'confidently and unequivocally',[13] and they have actively deployed the contention that the relevant opinions are not actionable during the course of their conduct of the litigation.

15 Further, the Apache parties, in referring to the relevant opinions, have not only put in issue the factual issue of whether in fact they held the relevant opinions, but also, arguably, whether they had a reasonable basis for those opinions, or at least, some basis for the opinions.[14] This issue is of course articulated in paragraph 20E of the statement of claim, but arguably, the onus will be on the Apache parties, not the Oswal parties, to establish that there is a basis for the relevant opinions.

16 Further, it is apparent from the authorities that in determining whether a party who had put their state of mind in issue has acted inconsistently with the maintenance of legal professional privilege in documents relevant to their state of mind that it is permissible to look beyond the terms of the pleading itself.

17 In a case recently decided concerning the principles of issue waiver, Mullett v Nixon (Subpoena Application),[15] J Forrest J reviewed the leading authorities, including Intertan, and Commissioner of Taxation v Rio Tinto Ltd,[16] and stated, relevantly, as follows (omitting citations):

The points that arise out of these decisions are twofold. First, it is necessary that a party maintaining the privilege put in issue an assertion about a confidential communication which relates to a matter to be determined at trial. Second, in determining whether a party has put a matter in issue, the court is not confined to the pleadings. It is entitled to take into account the evidence put in a case, and the steps taken in the conduct of a proceeding. That process enables the court to determine whether there is the relevant inconsistent conduct on the part of the privilege holder. A party's conduct, aside from the pleadings, 'necessarily lays them [the contents of the privileged documents] open to scrutiny.'

18 Accordingly, while my analysis has focussed upon the pleadings to reach the finding that it is the Apache parties that have put in issue their holding of the requisite opinions, it is also the manner in which the Apache parties have sought to deploy their contentions in that regard in the conduct of the proceeding to date which informs my view regarding the forensic unfairness to the Oswal parties' of the continued maintenance of the privilege in the disputed documents, and therefore the requisite inconsistency of the Apache parties' conduct. Further, while I accept the submissions made on behalf of the Apache parties that the witness outlines of Mr Lannie and Mr Farris have a somewhat dubious status in this application, not being the actual evidence to be given at trial, they, along with the Apache parties' written outline of opening submissions, signal the Apache parties' intentions that they will continue to assert that the relevant statements are contentions of opinion, and thus are not actionable under the Australian Consumer Law. Indeed, one might expect that, if Mr Oswal's application had not been made at this time, it would almost certainly be made once Mr Lannie and Mr Farris they give their evidence about the relevant opinions, and senior counsel for the Apache parties conceded as much in his submissions.

19 Other relevant factors which have been identified as relevant to the determination of whether there is a waiver include:

The significance of the belief to the case as a whole; the relevance of the reasonableness of the belief to the case as a whole; the probability or otherwise of the legal advice being relevant to the holding of that belief, or being relevant to its reasonableness; and in circumstances where the Court inspect the legal advice in question, in order to make a decision, the extent to which the legal advice does in fact bear upon the holding of the belief or its reasonableness, and the extent to which the legal advice relevant to those matters is inextricably bound up with legal advice going to other questions as to which there has been no consent or waiver.[17]

20 In the current application, while the Apache parties have asserted that the misleading and deceptive conduct claims against them are at the periphery of these proceedings, at the risk of repetition, the allegation that the relevant statements are contentions of opinion are at the heart of their defence to the claim of misleading and deceptive conduct.

21 For completeness, the question of whether the relevant opinions were held, and whether those opinions were likely to have been influenced by legal advice, no further inquiry needs to be made. The conduct of the Apache parties in discovering and claiming privilege over the disputed documents comprehensively answers that question. It is not possible to determine the question of whether disclosure of the disputed documents would result in the disclosure of privileged communications over which privilege has not been waived.

22 Accordingly, I will order that the Apache parties produce for inspection the documents referred to in paragraph 3(a), and by necessary implication the documents in sub-paragraph 3(c), of the 20 May summons.

23 In paragraph 3(b) of the 20 May summons, Mr Oswal seeks orders that the Apache parties produce:

Any document that records an opinion as to whether the GSA was field specific or as to Apache Northwest's prospects in the GSA proceeding.

24 The Apache parties' resisted the application, largely on the grounds that Mr Oswal was largely attempting to re-litigate that part of Mrs Oswal's application which sought:

(a) documents relating to the opinion held by Apache Northwest ... as to the extent of Apache Northwest's obligations under the GSA in the circumstances described in the Apache Force Majeure Notice, including all documents relevant to the basis for that opinion;

(b) all documents dated between 1 June 2005 and 23 November 2006 constituting or referring to communications within Apache and amongst Apache, Tap and Kufpec and any of those parties' representatives or agents in respect of the respective Force Majeure notices; and

(c) (in relation to the 22 December 2010 letter) documents relating to the opinion held by Apache Energy ... as to -

(i) the extent of Apache Northwest's obligations under the GSA in the circumstances described in the Apache Force Majeure Notice; and

(ii) the outcome of the GSA proceeding - including all documents relevant to the basis for that opinion.

25 Mrs Oswal's application was only partially successful, in that I confined the discovery to documents relied upon by the Apache parties in forming the relevant opinions. The Apache parties submit that Mr Oswal's application is simply seeking to have 'another bite at the cherry'.

26 In some respects that is the case, notwithstanding that the applications were made by different parties in different proceedings. However, the application by Mrs Oswal was argued on an 'all or nothing' basis, and the relief granted was not sought by either party. This is not an application for the same relief as was sought in Mrs Oswal's summons of 19 June 2015. In my view, there is no reason in principle, particularly with respect to my findings in relation to the Lannie application, why a party which has made an application for a broad class of documents cannot bring a subsequent application for a more confined class of documents, for determination upon the relevant principles applicable to discovery. The application is made late, but only a matter of weeks after Sifris J dismissed the appeal from my orders of 3 March 2016

27 The question of whether the relevant opinions were in fact held is a fact in issue in the proceeding. Further, upon reflection, having heard the argument in the waiver application, and in particular, the possibility that the Court might be required to determine not only whether the Apache parties held the relevant opinions, but also whether they had a basis, or a reasonable basis for doing so, the documents sought in paragraph 3(d) of the summons are relevant to the issues in the proceeding. However, I am willing to entertain submissions as to how the scope of this category of documents could sensibly be confined.

28 Finally, the question remains as to whether Mr Oswal should be permitted to pursue the Lannie application, whereby Mr Oswal challenges the Apache parties' claim to legal professional privilege in approximately 475 documents. The challenge is largely based upon the assertion that because Mr Lannie held a commercial role as well as a legal role, there must be some real doubt as to whether communications between Mr Lannie and others were always for the dominant purpose of providing legal advice. In order to narrow the focus of the dispute, Mr Oswal has limited the challenges to documents which are communications between Mr Lannie and non-lawyers employed by the Apache parties.

29 The Apache parties submit, in the strongest possible terms, that Mr Oswal's application is an abuse of process, in that it seeks to agitate issues first raised by Mrs Oswal in her summons filed on 19 June 2015, and abandoned by her shortly thereafter in correspondence from her then solicitors Jones Day. Mr Oswal's solicitors commenced to act for Mrs Oswal on 9 November 2015, and the matter was not pressed. Mrs Oswal's summons filed 19 June 2015 was dismissed by me by consent on 3 March 2016.

30 Further, the application by Mr Oswal in the 20 May summons comes some fourteen months after the Apache parties made discovery and provided their lists of privileged documents, on the eve of the trial. No explanation whatsoever has been provided for the delay. The Apache parties submitted that the making of such an application offends all of the principles of modern case management.

31 Further, it was submitted that the Apache parties will suffer real prejudice if the application is allowed to proceed. First, there is the prejudice of having to deal with the application itself, in the context of the solicitors and counsel for the Apache parties being actively engaged in the trial. Secondly, there will be prejudice if the application is partially or fully successful, as work will need to be done, again during the course of the running of the trial, to address any documents disclosed during the course of the trial in the Apache parties' evidence or submissions.

32 I agree that the conduct of the Oswal parties in relation to this application is unsatisfactory. The Oswal parties have been warned of the need to press their applications in respect of discovery and privilege expeditiously. There were ample opportunities for the application to be pressed from the time the Oswal parties summonses were referred to me in September 2015. And, while this is of course not conclusive, the orders of 3 March 2016 were made in circumstances where, subject to any appeals and subject to any determination of the question of waiver with respect to the documents discovered by the Apache parties on 4 May 2015, all parties were entitled to assume that disputes over discovery and privilege had been finalised, or at least all foreseeable disputes. No explanation for the delay has been provided. It is apparent from the statements made by senior counsel for Mr Oswal from the bar table that the application was made because the Oswal parties' legal team during the course of preparation for trial, thought it was important. That suggests that when Mrs Oswal's current solicitors commenced to act for her on 9 November 2015, they either deliberately decided not to pursue the application, or simply overlooked it.

33 In my view, no estoppel or abuse of process arises from Mr Oswal making the application notwithstanding the dismissal of Mrs Oswal's summons on 3 March 2016. While of course Mr and Mrs Oswal are acting, and have acted in concert during the course of the proceedings, their proceedings are separate. In any event, there is no hard and fast rule regarding the renewal of interlocutory applications.

34 In Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd,[18] Hargrave J summarised the authorities regarding the principles applicable to subsequent interlocutory applications where the applicant has previously been refused the same relief, as following (omitting citations):

1. My review of the authorities has led me to the conclusion that I am not bound, in considering the second reinstatement application in this case, to apply Guss and Stragan, with the effect that I am limited to considering any "new evidence" which was not available on the hearing of the first reinstatement application. I am of this view for the following reasons.
2. In the first place, although the second reinstatement application is of a similar kind to an application to set aside a default judgment, it is a different application.
3. Secondly, the decision of Mandie J in Global Realty constitutes a single judge decision which is contrary to the decisions in Guss and Stragan. In these circumstances, the weight to be attached to the fact that the decisions in Guss and Stragan concern matters of practice and procedure is diminished.
4. Thirdly, and most importantly, both Brooking and Hayne JJA in Christie clearly stated that they were not purporting to lay down any general rules to be applied in determining whether any interlocutory application constitutes an abuse of process.
5. Fourthly, the variety of interlocutory applications and of the circumstances pertaining to each individual application dictate, in my view, that it is undesirable that there be a set of rigid rules to be applied to every case where a second interlocutory application is made after the refusal of a first application for the same relief. In this regard, I respectfully adopt the passage from the judgment of Heydon JA in Manning quoted above which was referred to with apparent approval by Maxwell P in Philip Morris.
6. As a result, it is my view that the correct approach to apply to second or subsequent interlocutory applications is that stated in Manning and Pierson that "the overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case." As I have said, this statement was referred to with apparent approval by Maxwell P in Philip Morris. Further, this approach is consistent with the statement of Brooking JA in Christie quoted above in respect of interlocutory applications concerning questions of practice and procedure that:

"... it is, generally speaking at all events, open to the court to exercise a wide discretion in the interests of justice in considering whether an applicant who has failed on the merits may none the less succeed on a second application."

35 Accordingly, even if Mr and Mrs Oswal were treated as being one and the same, Mr Oswal is not shut out from re-agitating the Lannie application. Arguably, the application is not even for the same relief, as Mr Oswal in the 20 May summons seeks only a sub-set of the documents sought by Mrs Oswal in her summons of 19 June 2015.

36 It is in that context the letter from the Oswal parties' solicitors to the Apache parties' solicitors dated 18 November 2015, which the Apache parties rely upon for their contention that the Oswal parties abandoned any right to bring further applications concerning discovery and privilege, needs to be viewed. This letter annexed a schedule referable to the schedule annexed to Mrs Oswal's summons of 19 June 2015, and indicated that a number of classes of documents in that schedule were not been pressed, while other categories of documents were amended to confine the scope of Mrs Oswal's discovery application. There was no reference to any challenge to any of Apache's privilege claims, either with respect to the Lannie documents, or at all.

37 Further, as noted by senior counsel for the Oswal parties in his submissions, the letter of 18 November 2015 included the following express disclaimer:

As our preparation for trial continues, if it becomes apparent that there remain documents, or categories of documents, that will be necessary for the trial of the proceeding, and that have not been discovered, our client reserves the right to seek discovery of those documents.

38 Again, while this letter concerned Mrs Oswal's discovery application, not any challenges to the Apache parties' claims for privilege, the disclaimer above suggests that the proposition that the Apache parties could rely upon this letter as amounting to a surrender of any other claims the Oswal parties had or may have in respect of discovery or privilege is somewhat overstated. The same could be said in relation to the letter from Mrs Oswal's former solicitors, Jones Day, dated 25 August 2015 to the solicitors for the other parties, in which they stated as follows:

1. We refer to:

(a) our client's discovery applications, contained in her summons filed on 19 June 2015 (RO Discovery Summons);

(b) the Without Prejudice meeting held at Herbert Smith Freehills' offices on 16 July 2015 and telephone calls around that date;

(c) the correspondence from Clayton Utz and Herbert Smith Freehills regarding our client's complaints relating to privilege claims made by the defendants; and

(d) our client's summons dated 21 August 2015 (RO Privilege Summons).[19]

1. We have given considerable thought to the response received by us in the meetings and calls referred to in (b) above and in the correspondence referred to in (c) above and we have noted that your respective clients have since produced a number of documents which were previously claimed to be privileged.
2. In the circumstances, save to the extent that they are raised in the RO Privilege Summons, our client does not intend to agitate those aspects of the RO Discovery Summons that relate to privilege issues further at this stage.
3. Nonetheless, she reserves her right to do so or to raise further privilege issues if they arise at trial.
4. Please note that it remains our client's intention to re-agitate those aspects of the RO Discovery Summons that relate to discovery of documents other than those for which privilege is claimed as soon as the Court permits her to do so.

39 The terms of this letter can hardly be said to amount to an abandonment of any challenges to legal professional privilege.

40 Of course, given the timing of the application, principles of case management, as articulated by the High Court in Aon Risk Services Australia Ltd v Australian National University,[20] and enshrined in the Civil Procedure Act 2010 (Vic), loom large in the current application. However, those principles also need to be considered in tandem with the justice of the case, and the actual prejudice to the other party and the imposition on Court resources, caused by the bringing of the Lannie application. The Apache parties rely in their written submissions upon a recent decision of the New South Wales Court of Appeal in Liu v The Age Company Limited,[21] in support of their contention that, while the general test to be applied is whether it is in the interests of justice to permit or refuse a second application, where parties have made forensic decisions in the conduct of litigation, it is unlikely to be in the interests of justice to permit them to revisit those tactical decisions. Two points can be made regarding that proposition. First, no application by either Mr or Mrs Oswal for inspection of the Lannie documents has been heard and determined, so that it is arguable that the (albeit flexible) principles applicable to second and subsequent applications do not arise for consideration. The highest the position can be put in that regard is that the Apache parties were not unreasonably lulled into the expectation that, by 18 November 2015, the only outstanding applications concerning the production of documents would be those pressed in the 18 November 2015 letter, such that it would be unfair to the Apache parties to subject them to further applications. The second is that the Court of Appeal was concerned with a very different case. In that case, the judge below acceded to an application to stay a decision she had made in an application in a preliminary discovery application over three years before, such decision having been upheld on successive appeals, in response to a concession made by a media company that it would not rely on a defence of qualified privilege to a claim for defamation if it was not required to produce documents identifying its sources. The Court of Appeal reversed the substantive decision (to order a stay) on various grounds, and also held that the judge below ought not have entertained the application for a stay, as the concession could have been made at the original hearing, and it was not in the interests of justice, or in accordance with the provisions of the New South Wales equivalent of the Civil Procedure Act 2010 (Vic) to do so. However, this was a very different situation to the current case. The preliminary discovery application was described as a 'substantive application' (the first hearing had a duration of ten days), and it was held that the judge below had erred in allowing the re-litigation of matters already heard and determined, and in failing to consider the strain the litigation must have imposed upon the applicant over a number of years. The application of the principles of case management and justice to the previously successful party in that case led to a different result than is warranted in the current case.

41 As noted above, legal professional privilege is an important substantive right, not to be easily lost or surrendered. It is also not to be lightly claimed. The preservation of confidence in documents which are relevant to a proceeding by reason of legal professional privilege is an exception, for sound public policy reasons, to the general principles underpinning the process of discovery, with the need for procedural and forensic fairness being afforded to parties of having access to relevant documents. Thus, while 'privilege trumps relevance',[22] if a claim for legal professional privilege is challenged, then the onus rests upon the party claiming privilege to establish its claim. That onus sits uncomfortably with a notion that there ought to be a cut-off date after which a privilege holder is immune from challenge, even a cut-off date as late as the commencement of the trial. Finally, while of course I cannot determine the issue in the absence of the evidence of the Apache parties, the Lannie application on its face appears at least to be a respectable application, and not frivolous or vexatious, even if it is ultimately not successful.

42 As for the question of prejudice, I accept that there will be some prejudice to the Apache parties if the application is pursued. However, the documents have been enumerated and identified, and are only a modest proportion of the large number of documents over which the Apache parties have claimed privilege, being 5078 documents. Further, by reason of my rulings with respect to the waiver application and the documents sought by Mr Oswal in paragraphs 3(b) of the 20 May summons, the Apache parties will need to revisit their discovery in any event. I propose to order that the Apache parties produce an expanded list of the Lannie documents, to include descriptions of the documents, and the relevant section of the Evidence Act 2008 (Vic) that the claim for privilege is made, which will provide Mr Oswal with an opportunity to further refine his claims for privilege before the Apache parties are required to put on their evidence. On past experience, I doubt that the actual hearing time for the application will exceed one day, which can be accommodated within the trial timetable given the arrangements that have been made for the ongoing hearing and determination of disputes concerning discovery and privilege as they emerge during the course of the trial.

43 As for the prejudice which is said will arise out of any orders for the production of some or all of the Lannie documents, while I accept that it would be inconvenient for the Apache parties to have to adapt their presentation of their case in the event that any or all of the Lannie documents are ordered to be produced for inspection to Mr Oswal, the indicative trial timetable shows that the Apache witnesses are not scheduled to give their evidence before the end of September 2016, three months hence. Furthermore, the argument that an application should not be heard because it would cause inconvenience to the Apache parties to deal with documents over which they have wrongfully claimed privilege is not particularly attractive upon closer analysis.

44 Accordingly, I will direct that by 29 June 2016 the solicitors for the Apache parties provide an amended list of the Lannie documents, and that by 6 July 2016 the solicitors for Mr Oswal provide a list of documents in respect of which they maintain a challenge to the Apache parties' claims for privilege in those documents, with the Apache parties to file their evidence by 20 July 2016. If convenient to the parties, the application will be listed for hearing on 29 July 2016.

PROCEEDING SCI 2011 04653 - SCHEDULE OF PARTIES

QUADRANT ENERGY AUSTRALIA LIMITED (ACN 009 301 964)

PROCEEDING SCI 2012 01995 - SCHEDULE OF PARTIES

AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD (ACN 005 357 522)

QUADRANT ENERGY AUSTRALIA LIMITED (ACN 009 301 964)

[1] The parties, and certain transactions and documents, are referred to in the same manner as The Oswal matters - pre-trial discovery and privilege applications [2016] VSC 386.

[2] See Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 [31].

[3] In her summons of 19 June 2015, Mrs Oswal made a wide ranging application for discovery against the Apache parties, which sought, among other things, legal advice received by the Apache parties, and the production of what appears to be a large proportion, if not all, of the documents over which the Apache parties claimed privilege, including 1833 communications involving Mr Lannie. A much more confined application was heard on 18 December 2015 and 19 February 2016, and was the subject of my ruling on 3 March 2016.

[4] DSE (Holdings) Pty Ltd v Intertan [2003] FCA 384; (2003) 127 FCR 499 [58] ('Intertan').

[5] Vic Hotel Pty Ltd v DC Payments Australasia Pty Ltd [2015] VSCA 101; (2013) 321 ALR 191 [35] ('Vic Hotels').

[9] See, for example, Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; [2004] 140 FCR 101 [68].

[11] [2015] VSCA 101; (2013) 321 ALR 191 [53].

[12] [2012] HCA 39; (2012) 247 CLR 486 [33]-[38].

[13] Oswal & Anor v Australia and New Zealand Banking Group & Ors (Strike out application) [2016] VSC 134 [55].

[14] Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82, 88.

[15] [2016] VSC 129 [47].

[16] [2006] FCAFC 86; (2006) 151 FCR 341 [50], [68].

[17] Wayne Lawrence Pty Ltd v Hunt [1999] NSWSC 1044 [11]-[12], referred to Intertan at [102].

[18] [2006] VSC 170 [41]-[46].

[19] This summons was directed at the ANZ parties alone.

[21] [2016] NSWCA 115.

[22] Equuscorp Pty Ltd v Kamisha Corp Ltd [1999] ATPR 45-697, 42894.