Supreme Court New South Wales

• Medium Neutral Citation: Singtel Optus Pty Limited v Weston [2011] NSWSC 1083
• Hearing dates: Thursday, 1 September 2011
• Decision date: 16 September 2011
• Jurisdiction: Equity Division - Corporations List
• Before: White J

Decision

1 . Order that the plaintiffs produce for inspection by the defendant the first page of document 558 in tab 7A.

2. Order that the defendant's amended interlocutory process filed on 19 August 2011 be otherwise dismissed.

• Catchwords: PRACTICE AND PROCEDURE - privilege - whether common law or Evidence Act 1995 applies - s 131A, Evidence Act - Evidence Act and not the common law applies where the objection to inspection taken by person required to produce documents on subpoena or notice to produce - s 131A, Evidence Act only applies where person objecting to disclosure on ground of privilege is same person required to produce document; PRACTICE AND PROCEDURE - privilege - waiver - no question of principle
• Legislation Cited: Evidence Act 1995
• Cases Cited: Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151; Waugh Asset Management v Merrill Lynch [2010] NSWSC 197; d'Apice v Gutkovich (No. 1) [2010] NSWSC 1336; Alderman t/as Sydney Filmworks v Zurich Australian Insurance Ltd [2011] NSWSC 754; TransGrid v Members of Lloyds Syndicate 3210 [2011] NSWSC 301; State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60; Grant v Downs [1976] HCA 63; (1976) 135 CLR 674; Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; Buttes Gas & Oil Co v Hammer (No. 3) [1981] QB 223; Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
• Category: Interlocutory applications
• Parties: Singtel Optus Pty Limited (Plaintiff); Paul Gerard Weston (Defendant)
• Representation: J A C Potts with C E Bannan (Plaintiff); N Cotman SC with R Glasson (Defendant); Baker & McKenzie (Plaintiff); O'Neill Partners (Defendant)
• File Number(s): 2010/71799

Judgment

1 HIS HONOUR : This application concerns claims by the respondents to privilege against the inspection of documents produced pursuant to subpoenas and notices to produce.

2 In the proceedings the plaintiffs seek the removal of the defendant as special purpose liquidator of One.Tel Limited (In Liq) ("One.Tel") and an inquiry into his conduct as special purpose liquidator. The plaintiffs are Singtel Optus Pty Limited ("Singtel Optus") and certain of its subsidiaries. The plaintiffs, or at least some of them, are substantial creditors of One.Tel.

3 For a considerable period there were disputes between the defendant and the committee of inspection of One.Tel. In the proceedings for the removal of the defendant as special purpose liquidator and for an inquiry into his conduct the defendant has served notices to produce on the plaintiffs and on at least one company (Telstra Corporation Limited ("Telstra")) that entered an appearance, although not named as a party, and has served subpoenas for the production of documents. Subpoenas have been issued to members of the committee of inspection and to certain of the creditors of One.Tel.

4 The plaintiffs and members of the committee of inspection have claimed privilege in respect of documents produced by the plaintiffs, by members of the committee, and by three creditors of One.Tel, namely, Telstra, Cisco Systems Capital Australia Pty Limited ("Cisco") and Roadhound Electronics Pty Limited ("Roadhound Electronics").

5 Initially privilege was claimed over more than 3,000 documents. I refused to make an order that the respondents swear an affidavit explaining how privilege attached to each of the documents, but directed that the documents in question be produced to the courts so that they could be inspected so as to assess the claims of privilege. The respondents produced schedules of the documents describing the nature of the document, the parties to whom the communication was sent and the grounds on which privilege was claimed. The grounds on which privilege was claimed were specified by reference to the Evidence Act 1995, although the respondents contended that the claims for privilege should be determined according to the common law. References to the Evidence Act were treated as shorthand expression of claims for legal professional privilege, or as identifying grounds upon which privilege was not lost by reason of documents or communications being conveyed to third parties.

6 The respondents reviewed their initial claims of privilege. In the course of that review they said that they waived privilege over many documents, numbering in the hundreds, without conceding that the claims for privilege had not been properly made in the first instance.

7 Claims for privilege have been made by the plaintiffs and by four current and one former member of the committee of inspection, namely, Ms Barbara Galloon, Mr John Deloughery, Mr Gary Phillips, Mr Ben Sharma and Mr Alexander Roth. They are not parties to the present proceedings.

8 At all relevant times up to November 2009 the committee of inspection consisted of Ms Galloon, Mr Deloughery, Mr Phillips and Mr Roth. On 10 November 2009 Mr Sharma (of Roadhound Electronics) and Ms Laver (of Telstra) were appointed to the committee. Mr Roth resigned on 20 November 2009. Ms Laver also subsequently resigned from the committee.

9 Ms Galloon is an accountant employed by Optus Administration Pty Limited ("Optus"). It is a company in the same group of companies as the plaintiffs. It is a wholly owned subsidiary of the first plaintiff, Singtel Optus. In about September 2007, Ms Galloon approached a Mr Stuart Salier for him to provide her with advice and assistance in relation to her role as a member of the committee of inspection. Many of the documents which are the subject of the disputed claim for privilege were copied to Mr Salier. Mr Salier is a solicitor. He acted from time to time as legal adviser to Ms Galloon. He also acted as legal adviser to Singtel Optus Pty Limited and its subsidiaries. He assisted Ms Galloon and other members of the committee of inspection to obtain legal advice from Baker & McKenzie. Baker & McKenzie were retained in March 2008 to act for members of the committee of inspection. Mr Salier deposed that he also acted as a " conduit " to communicate instructions from Ms Galloon and other members of the committee of inspection to Baker & McKenzie and to communicate advice from Baker & McKenzie to Ms Galloon and other members of the committee. He sometimes participated in discussions between members of the committee in relation to the legal advice received from Baker & McKenzie.

10 The defendant submits that disclosure of instructions or otherwise privileged communications from members of the committee to Mr Salier, or the disclosure of legal advice provided for members of the committee to Mr Salier, resulted in a waiver of privilege, unless the communication was to Mr Salier in his capacity as legal adviser to Ms Galloon. The defendant also submits that disclosure of legal advice or otherwise privileged communications between the plaintiffs and their lawyers to members of the committee resulted in a waiver of privilege.

11 Mr Bruce Hambrett of Baker & McKenzie was retained to act for the members of the committee of inspection in March 2008. He deposed that Baker & McKenzie's retainer was to advise members of the committee generally regarding legal matters relevant to their activities as members of the committee and to act for the members of the committee in respect of various proceedings or contemplated proceedings relating to the special purpose liquidation of One.Tel, including proceedings involving the defendant.

12 Another partner of Baker & McKenzie, Ms Maria O'Brien, was the solicitor for Optus Mobile Pty Limited (the third plaintiff) in the proceedings from October 2008. From March 2010 Baker & McKenzie also provided legal services to the plaintiffs in respect of the current proceedings.

13 Some of the claims of privilege are based on the communications being for the dominant purpose of a lawyer providing legal advice to the client. Some of the claims are based on the communications or document being confidential communications or documents prepared for the dominant purpose of use in actual or anticipated litigation.

14 Members of the committee of inspection have been involved in several pieces of litigation since October 2008. In October and November 2008 and in 2010 members of the committee of inspection were parties to interlocutory processes in proceedings known as Onefone Australia Pty Limited & Ors v One.Tel Limited (In Liq) & Ors (86446 of 2003) ("the Onefone proceeding"). Those applications concerned the defendant's claim for approval for remuneration. Members of the committee also filed an interlocutory process in the Onefone proceeding on or about 19 August 2009 seeking orders to amend confidentiality orders previously made by the court. On 26 August 2009 orders were made in respect of that interlocutory process. On 15 October 2009 the general purpose liquidators of One.Tel commenced an application in respect of material to be circulated to creditors and the chairing of an annual general meeting of creditors of One.Tel. Members of the committee were involved in that litigation. On 26 May 2010 members of the committee and Singtel Optus or its subsidiaries brought an application in the Onefone proceeding regarding access to the defendant's litigation funding agreement. That application was referred to the Court of Appeal which delivered judgment on 1 July 2010.

15 The plaintiffs were not parties to those applications. As creditors of One.Tel they had a commercial interest in the conduct of the special purpose liquidation. The essential function of the defendant as special purpose liquidator was to investigate and then pursue any rights of action that exist in relation to the cancellation of the renounceable rights issue announced to the Stock Exchange by One.Tel on 17 May 2001 to be underwritten by Publishing and Broadcasting Limited and News Limited, and in relation to the decision to appoint voluntary administrators to One.Tel on 29 May 2001. The manner in which such possible rights of action have been investigated and pursued by the special purpose liquidator has been controversial. The plaintiffs claim, amongst other things, that the defendant has acted unreasonably in not seeking approval of the committee of inspection, or the body of creditors generally, to his entry into a litigation funding agreement for the prosecution of the renounceable rights issue proceedings ("RRI proceedings") and in refusing to disclose details of the funding agreement. The plaintiffs complain that the defendant has unreasonably failed to explore settlement options in relation to the RRI proceedings whilst at the same time seeking to secure litigation funding. The plaintiffs complain about the level of the defendant's remuneration and disbursements and legal expenses that are said to exceed $11.234 million up to 30 April 2010. The plaintiffs complain that the defendant has charged and received remuneration for tasks that do not fall within the scope of the powers conferred on him and has retained remuneration paid to him out of the assets of One.Tel on the basis of a circular resolution of some members of the committee of inspection that was held to be invalid. The plaintiffs complain that the special purpose liquidator has published serious and false information concerning members of the committee of inspection and has published misleading statements in connection with an annual general meeting of creditors of One.Tel held on 10 November 2009. The plaintiffs contend that the defendant has unreasonably opposed and defended applications made by the committee of inspection and by the general purpose liquidators in 2008 and 2009. They contend that there has been a breakdown in the relationship between the defendant and the members of the committee of inspection and that creditors of the company have lost confidence in the defendant's ability to discharge his functions.

16 The claims for privilege fall into seven categories. First, Telstra produced documents pursuant to a notice to produce issued by the defendant. Privilege is claimed by the plaintiffs in respect of one document produced by Telstra. Members of the committee of inspection claim privilege in respect of six documents.

17 Secondly, documents were produced by Mr Deloughery (a member of the committee of inspection) pursuant to subpoena. The plaintiffs claim privilege with respect to two documents produced by him. He and other members of the committee claim privilege in respect of other documents.

18 Thirdly, documents were produced on subpoena by Mr Gary Phillips. The plaintiffs claim privilege over seven documents. Mr Phillips and other members of the committee of inspection claim privilege over a large number of other documents.

19 Fourthly, documents were produced on subpoena by Cisco. The plaintiffs claim privilege over four documents produced by Cisco.

20 Fifthly, the plaintiffs claim privilege over one document and members of the committee claim privilege in respect of a further six documents produced on subpoena by Roadhound Electronics.

21 Sixthly, Mr Roth claims privilege in respect of over 700 documents produced by him on subpoena.

22 Seventhly, the plaintiffs claim privilege over almost 1,000 documents produced by them pursuant to notices to produce. Members of the committee of inspection also claim privilege over more than 1,200 documents produced by the plaintiffs.

23 All the documents for which privilege is claimed have been produced for my inspection. In the course of oral submissions I was taken to a number of documents by counsel for the defendant. This was primarily in the course of counsel seeking to make good a submission that there had been a waiver of privilege by the disclosure of documents to Mr Salier. In the course of that review I identified only one document in respect of which I considered it doubtful that a claim for privilege arose. All of the other documents to which I was taken were clearly privileged, although there is a question as to whether privilege was waived by disclosure to persons between whom there was not a relationship of lawyer and client. I subsequently carried out a further sampling of the documents to satisfy myself that the respondents had taken a proper approach in relation to their claims for privilege. I also " scanned lightly " the other documents. In this respect I followed the approach taken by Brereton J in Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 at [19], albeit in respect of 33 volumes of documents. I found only one isolated instance in which I was not satisfied that documents for which privilege was claimed were privileged (referred to at [46] below).

24 There is an initial question whether the present application for inspection is to be dealt with in accordance with the Evidence Act 1995 or the common law. In Carbotech-Australia Pty Ltd v Yates Brereton J held that whilst r 1.9 of the Uniform Civil Procedure Rules 2005 had the result that the Evidence Act applied to the initial stage of production of documents to the court under subpoena, neither the Evidence Act nor the Uniform Civil Procedure Rules applied at the subsequent stage of inspection of documents. Hence rules of common law applied to questions of the availability of privilege and the waiver of privilege at the stage of inspection. Subsequently, the Evidence Act was amended to include s 131A. It provides:

" 131A Application of Part to preliminary proceedings of courts

(1) If:

(a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and

(b) the person objects to giving that information or providing that document,

the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.

(2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following:

(a) a summons or subpoena to produce documents or give evidence,

(b) pre-trial discovery,

(c) non-party discovery,

(d) interrogatories,

(e) a notice to produce,

(f) a request to produce a document under Division 1 of Part 4.6. "

25 In Waugh Asset Management v Merrill Lynch [2010] NSWSC 197 McDougall J held that s 131A also applied at the stage of production and did not apply at the second stage where inspection is sought of documents produced to the court, so that the relevant principles to be applied were those of the common law (at [9]-[12]). I followed his Honour's decision in d'Apice v Gutkovich (No. 1) [2010] NSWSC 1336 at [10], as did Adams J in Alderman v Zurich [2011] NSWSC 754 at [12].

26 However, in TransGrid v Members Lloyd's Syndicate 3210 [2011] NSWSC 301, Ball J, without deciding the question, raised doubts as to whether this was the better construction of s 131A (at [10]). On further consideration I consider that those doubts are well founded. Relevantly subs 131A(1) applies where a person is required by a " disclosure requirement " to " produce " a document. Prima facie , as McDougall J held, the section applies at the stage of production. However, the definition of " disclosure requirement " as meaning a process or an order that requires the " disclosure " of a document, including by way of production of a document on subpoena or a notice to produce, indicates that the draftsman intended the section to apply to the entire process by which the production of a document on subpoena or by notice to produce (or by the other means referred to in subs 131A(2)) would result in the disclosure of the document.

27 The doubt as to the scope of s 131A having been raised in TransGrid v Members of Lloyd's Syndicate 3210 , I think that I am justified in not following the earlier line of decisions (including my own), all of which were delivered ex tempore. In my view, where the objection to inspection is taken by the person required to produce the document on subpoena or notice to produce, the Evidence Act , and not the common law, applies.

28 However, as Allsop P held in State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 at [32] and as the terms of s 131A clearly provide, the section only applies where the person objecting to disclosure on the ground of privilege is the same person who was required to produce the document. The section does not apply when a claim for privilege is made by persons other than the person required to produce the documents. In such cases the common law applies.

29 In the circumstances of this case there is no different outcome, either as to availability of privilege, or as to whether privilege has been waived, depending on whether it is the common law or the Evidence Act that applies. This will not always be so.

Claims for privilege over documents produced by Telstra

30 Privilege was claimed by the plaintiffs in respect of a file note prepared by Ms Laver of Telstra of a telephone conference between her, Mr Salier of Optus, and Messrs Navas and Quinn of Cisco. The plaintiffs claim privilege under s 119 of the Evidence Act (that is to say, as a document recording a confidential communication between a lawyer (Mr Salier) acting for a client (Optus) and another person (Ms Laver, Mr Quinn and Mr Navas) for the dominant purpose of Optus being provided with professional legal services relating to an existing or anticipated proceeding. The plaintiffs' claim against the defendant was filed on 22 March 2010, that is, less than four weeks after the date of the conversation. As the question is to be decided by the common law, the document will be privileged if it were a confidential communication for the purposes of preparing for or in aid of the conduct of existing or contemplated legal proceedings ( Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 677; Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 490).

31 One of the allegations made by the plaintiffs in these proceedings is that creditors of One.Tel have lost confidence in the defendant. It is specifically alleged that Telstra, Cisco and Roadhound Electronics who, it is said, along with the plaintiffs, represent the majority of the creditors of One.Tel by value, have each lost confidence in the defendant and support the plaintiffs' claim.

32 I accept that Ms Laver's record of the conversation with Mr Salier of Optus is a record of a communication made for the dominant purpose of assisting anticipated litigation. I accept that the circumstances of the conversation are confidential. There is no question of waiver of privilege. If the question of waiver did arise, I accept that Telstra, Cisco and the plaintiffs had at this time a common interest in the anticipated litigation ( Buttes Gas & Oil Co v Hammer (No. 3) [1981] QB 223 at 243).

33 The documents produced by Telstra over which the members of the committee of inspection claim privilege are notes of a conversation between Mr Salier and Ms Laver on 18 September 2009 and email correspondence between, amongst others, Ms Laver and Mr Salier in February 2010. Privilege is claimed in respect of part of the first document on the basis that it is a disclosure of legal advice received by the committee of inspection. It is clear that the portion of the document over which privilege is claimed is a communication from Mr Salier to Ms Laver of legal advice received by the committee of inspection. The question is whether that disclosure by Mr Salier amounts to a waiver of privilege. In my view it does not. The communication was confidential.

34 I see no basis for thinking that there was a waiver of privilege by the communication of the advice to Mr Salier. Another part of the file note (for which privilege is not claimed) includes a statement that the committee of inspection had authorised the discussion with Telstra. Therefore, I assume that Mr Salier had the authority of the members of the committee of inspection to convey the advice to Ms Laver. (If he did not, there could be no question of the persons entitled to the privilege having acted inconsistently with maintaining the privilege ( Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [28])).

35 In Mann v Carnell the plurality of the High Court said that it is an inconsistency between the conduct of the client and maintenance of the confidentiality which affects a waiver of legal professional privilege. In determining whether there is an express or implied waiver by reason of such inconsistency, the courts will be informed by considerations of fairness (at [28] and [29]).

36 The file note (in parts for which privilege is not claimed) contains what is evidently Mr Salier's advice to Ms Laver as to the current views of the committee of inspection, including a statement that the committee of inspection wanted the defendant removed as special purpose liquidator and a statement of various factors relevant to those concerns. It can be inferred that Mr Salier was either sounding out Telstra's view, or seeking Telstra's support, or both.

37 Mr Salier deposed that he had two purposes in communicating the substance of the advice that Mr Hambrett had conveyed to him as lawyer for Optus and as legal adviser to Ms Galloon. One of the purposes was to discuss the criticisms of the committee of inspection and its members published by the defendant in his report to creditors of One.Tel dated August 2009 and to put forward the committee of inspection's position in relation to those issues. The other was to try to elicit whether Telstra was likely to support an application for removal of the defendant as the special purpose liquidator of One.Tel.

38 In my view, an implied obligation was imposed on Ms Laver not to disseminate the information received from Mr Salier about the committee of inspection's legal advice beyond other employees or advisers of Telstra. I do not consider that disclosure of the advice to Telstra is inconsistent with the members of the committee maintaining privilege in opposition to the defendant's claim to inspect that part of the document.

39 The balance of the documents produced by Telstra over which members of the committee claim privilege were brought into existence when Ms Laver is said to have been a member of the committee. The documents all related to litigation then pending and included drafts of submissions that were being prepared on behalf of the committee of inspection in relation to pending proceedings concerning the defendant's remuneration and expenses. The documents for which privilege is claimed are clearly the subject of " litigation privilege " and there can be no question of waiver. The fact that Mr Salier is a party to most of the email communications does not affect this conclusion. In relation to these documents I would infer that he was acting as legal adviser to Ms Galloon. But even if he were acting as legal adviser to Optus, the disclosure of communication of the documents to him would not be inconsistent with members of the committee maintaining their claims for privilege.

Documents produced by Mr Deloughery

40 The documents produced by Mr Deloughery on subpoena to which the plaintiffs claim legal professional privilege are clearly privileged. They are communications between the plaintiffs' lawyers and Mr Deloughery in relation to the possible contents of an affidavit to be prepared for him.

41 The documents produced by Mr Deloughery for which he and other members of the committee of inspection claim privilege, either contain legal advice or were prepared for the purposes of use in litigation. The documents are clearly privileged. The question in this case is whether the fact that Mr Salier was a recipient of the communications means that privilege was waived. In relation to this class of documents Mr Deloughery's claim of privilege is determined by s 122 of the Evidence Act . Section 122 provides:

" 122 Loss of client legal privilege: consent and related matters

(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.

(2) Subject to subsection (5), 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.

(3) Without limiting subsection (2), a client or party is taken to have so acted if:

(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or

(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.

(4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.

(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because:

(a) the substance of the evidence has been disclosed:

(i) in the course of making a confidential communication or preparing a confidential document, or

(ii) as a result of duress or deception, or

(iii) under compulsion of law, or

( iv) if the client or party is a body established by, or a person holding an office under, an Australian law-to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held, or

(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or

(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers). "

42 The defendant submitted that Mr Deloughery had acted in a way that was inconsistent with his objecting to the disclosure of the material because it had been knowingly and voluntarily disclosed to Mr Salier, or was disclosed to him with Mr Deloughery's consent. The defendant submitted that Mr Salier was " another person " within the meaning of s 122(3). I do not agree. In these communications Mr Salier was acting as agent for at least Ms Galloon as her legal adviser. Ms Galloon as well as Mr Deloughery and the other members of the committee were all clients of Baker & McKenzie. In any event, the disclosure was in the course of confidential communications, and even to the extent the communications did not relate to pending or anticipated proceedings, (in respect of which s 122(5)(c) would apply), the members of the committee would not be taken to have acted in a manner inconsistent with their objecting to the disclosure. Many of the communications did relate to existing or anticipating proceedings in which I consider that Optus had a common interest with the members of the committee.

43 Prima facie the common law applies to the claims of privilege made by other members of the committee of inspection. At common law there was no waiver of privilege. Disclosure to Mr Salier either as legal adviser to Ms Galloon, or as legal adviser to Optus, was not inconsistent with members of the committee of inspection maintaining their claims of privilege.

Documents produced by Mr Gary Phillips on subpoena

44 I accept that the documents for which the plaintiffs claim privilege were brought into existence for the dominant purpose of use in the litigation. There was no waiver of privilege.

45 The same comments apply to the claim for privilege made by members of the committee of inspection in respect of the documents produced by Mr Phillips as to the documents produced by Mr Deloughery.

46 There is one document produced by Mr Phillips which does not appear to be privileged (document 54 at tab 3B). The document is an email from Mr Hambrett to Ms Galloon copied to Mr Salier and others of 10 September 2009 and attached documents. The email does not convey any legal advice or refer to any request for legal advice. It attaches three documents, none of which appears to be privileged. One is a transcript of a recording of a meeting attended by the defendant and his solicitors. Another is correspondence between solicitors, and the third is a copy of a court order. I will invite counsel for the respondents to consider whether the claim for privilege in respect of this document is pressed, and if so, to make submissions in that regard. The same comment applies to documents 11 and 12 behind tab 3C.

Documents produced by Cisco Systems Capital Australia Pty Limited on subpoena

47 Privilege is claimed by the plaintiffs over four documents. I am satisfied that each is the subject of litigation privilege. There was no waiver.

Documents produced by Roadhound Electronics Pty Limited

48 The document for which the plaintiffs claim privilege is clearly the subject of litigation privilege. It is a communication with a prospective witness in relation to evidence that might be given in an anticipated proceeding.

49 The documents over which members of the committee claim privilege are also clearly the subject of litigation privilege. The documents were sent to Mr Sharma who, by 15 February 2010, is said to have been appointed to the committee. I do not infer that there is any waiver of privilege by reason of the fact that the documents were produced by the company of which Mr Sharma is a director and shareholder. He deposed that he kept all the communications he received as a member of the committee confidential, including the advice he received from Mr Hambrett. A number of the communications are from Mr Salier. It appears that he was acting in relation to these communications not only as a lawyer for Optus, but as a lawyer for Ms Galloon and as agent for the members of the committee. I uphold the claims for privilege.

Documents produced by Mr Roth

50 Mr Roth claims privilege under s 118 or s 119 of the Evidence Act over 739 documents produced on subpoena. The claims for privilege are made by Mr Roth himself and not by other members of the committee. The claim is therefore to be assessed under the Evidence Act and not the common law. The other members of the committee would also have been entitled to claim privilege over the documents. There are six lever arch folders of documents. I have read a sample of the documents in detail and have lightly scanned the balance of the folders. I am satisfied that they are privileged. For the reasons previously given the fact that a number of them were copied to Mr Salier does not mean that the communications were not confidential, nor that there was a waiver of privilege.

Documents produced by the plaintiffs pursuant to notices to produce

51 There are 23 lever arch folders of documents for which privilege is claimed. During the hearing one of the documents to which submissions were directed was document 558 in tab 7A. It is an email from Mr Murray King, the chief financial officer of Singtel Optus, to Mr Paul O'Sullivan the chief executive officer of the company. The contents of the email are not privileged. They set out the position that the company was to adopt at a meeting of One.Tel creditors to be held on 10 November 2009. The email did not purport to summarise any legal advice received. Attached to the email is another email from Mr Salier to Mr King which attached a proposed statement to be made by Ms Phillips at the meeting of creditors. I accept that Mr Salier's advice to Mr King and the draft of the statement (document 559) are privileged. I accept that advice as to what statements should be made at the meeting of creditors and the drafting of the statement come within the ambit of privilege for legal advice. Accordingly, I reject the claim for privilege for the first page of document 558 (being the email from Mr King to Mr O'Sullivan of 9 November 2009). I uphold the claim for privilege in respect of the second page of document 558 and in respect of document 559.

52 The email from Mr King to Mr O'Sullivan is contained in other chains of emails for which privilege was claimed. Given that the email itself will be produced, I see no reason for time being spent to produce further copies of the same document as part of subsequent email chains.

53 I have not identified any other documents for which privilege is claimed which do not appear to be privileged. There is no basis for saying that there has been a waiver of privilege. Many of the documents have been provided to members of the committee of inspection. That is not inconsistent with the maintenance of the claim for privilege. The disclosure imports obligations of confidence so that whether the common law applies or whether s 122(5)(a)(i) applies, there is no waiver of the privilege. In many of the cases in which disclosure of privileged documents was made to members of the committee, the documents also related to anticipated or pending proceedings in which the plaintiffs and the members of the committee had a common interest. Section 122(5)(c) would be an answer to the defendant's contention that privilege had been waived.

Orders

54 For these reasons I order that the plaintiffs produce for inspection by the defendant the first page of document 558 in tab 7A. I will hear the respondents in relation to the claim that the documents referred to at [46] are privileged. There has been no waiver of privilege by the communications to Mr Salier.

55 I order that the defendant's amended interlocutory process filed on 19 August 2011 be otherwise dismissed. I note that the respondents will produce for inspection those documents, or parts of documents, for which claims of privilege have not been pressed as set out in the folder entitled " Schedules in relation to documents subject to a claim for privilege ". I will hear the parties on costs.

Decision last updated: 16 September 2011