Supreme Court New South Wales

• Medium Neutral Citation: Melrose Cranes and Rigging Pty Ltd v. Manitowoc Crane Group Australia Pty Ltd [2012] NSWSC 904
• Hearing dates: 2 July 2012
• Decision date: 17 August 2012
• Jurisdiction: Common Law
• Before: S.G. Campbell J

Decision

The relief sought in prayer 6 of the defendant's Notice of Motion filed on 22nd February 2012 is refused.

The defendant is to pay Underwriting Agency of Australia Pty Limited's costs of the application in relation to prayer 6 on the ordinary basis forthwith after they have been agreed or assessed.

• Catchwords: PRIVILEGE - fire causing damage to crane - crane owner sues company responsible for sales and service - seller serves subpoenas to produce documents on three non-party respondent incident investigators - owners insurer claims litigation privilege or in the alternative advice privilege - HELD - documents protected from disclosure by litigation privilege - WAIVER - seller claims owners insurer by its conduct waived privilege - HELD - privilege not waived
• Legislation Cited: Evidence Act 1995 (NSW); Evidence Amendment Act 2007 (NSW) (repealed); Uniform Civil Procedure Rules 2005
• Cases Cited: Australian Competition and Consumer Commission v. Australian Safeway Stores Pty Ltd (1998) 81 FCR 526; Baker v. Campbell (1983) 153 CLR 52; CAL No. 14 Pty Ltd v. Motor Accidents Insurance Board (2009) 239 CLR 390; Cataldi v. Commissioner for Government Transport (1970) 1 NSWR 65; C-C Bottlers Limited v. Lion Nathan Limited [1993] 2 NZLR 445; Commissioner of Australian Federal Police v. Propend Finance Pty Ltd (1997) 188 CLR 501; DSE (Holdings) Pty Ltd v. InterTAN Inc. (2003) 135 FCR 151; ESSO Australia Resources Limited v. Commissioner of Taxation (Cth) (1999) 201 CLR 49; Farah Constructions Pty Ltd v. Say-Dee Pty Ltd (2007) 230 CLR 89; Federal Commissioner of Taxation v. Spotless Services Limited (1996) 186 CLR 404; Grant v. Downs (1976) 135 CLR 674; GSA Industries (Aust.) Pty Ltd v. Constable [2002] 2 Qd R 146; Guardian Royal Exchange Assurance of New Zealand v. Stuart [1985] 1 NZLR 596; Guinness Peat Properties Ltd & Ors. v. Fitzroy Robinson Partnership [1987] 2 All ER 716; Health and Life Care Limited v. Price Waterhouse (1997) 69 SASR 362; Mann v. Carnell (1999) 201 CLR 1; Meteyard v. Love (2005) 65 NSWLR 36; Mitsubishi Electric Australia Pty Ltd v. Victorian WorkCover Authority (2002) 4 VR 332; ML Ubase Holdings Pty Ltd v. Trigem Computer Inc. (2007) 69 NSWLR 577; Nikmar Pty Ltd v. Preservatrice Skandia Insurance (1985) 3 NSWLR 44; Orica Australia Pty Ltd v. Limit (No. 2) Ltd; [2008] VSC 247; Pratt Holdings Pty Ltd v. Commissioner of Taxation (2004) 136 FCR 357; Public Transport Authority of Western Australia v. Leighton Contractors Pty Ltd (2007) 34 WAR 279; R. v. P. (2001) 53 NSWLR 664; Samenic Limited v. APM Group (Aust.) Pty Ltd [2011] VSC 194; Singtel Optus v. Weston [2011] NSWSC 1083; State of New South Wales v. Jackson [2007] NSWCA 279; State of New South Wales v. Public Transport Ticketing Corporation [2011] NSWCA 60; Sydney Airports Corporation Limited v. Singapore Airlines Limited [2005] NSWCA 47; The Daniels Corporation International Pty Ltd v. Australian Competition and Consumer Commission (2002) 213 CLR 543; Tooheys Ltd v. Housing Commission of New South Wales (1952) 20 LGR (NSW) 236; Waterford v. Commonwealth (1987) 163 CLR 54; Waugh v. British Railways Board [1980] AC 521; Westpac Banking Corp. v. 789TEN Pty Ltd (2005) 55 ACSR 519; Wheeler v. Le Marchant (1881) 17 Ch. D. 675
• Category: Interlocutory applications
• Parties: Manitowoc Crane Group Australia Pty Limited (applicant); Melrose Cranes and Rigging Pty Limited (first respondent); Underwriting Agencies of Australia Pty Limited (second respondent)
• Representation: Counsel: Mr. R. Cheney S.C (applicant); Mr. A.M. Stewart (second respondent); Solicitors: Lee & Lyons Lawyers (applicant); Beston Macken McManis (first respondent); Hicksons Lawyers (second respondent)
• File Number(s): 2010/232918

Judgment

1 I am called upon to decide an interlocutory dispute arising in proceedings between Melrose Cranes and Rigging Pty Ltd (Melrose Cranes) and Manitowoc Crane Group Australia Pty Ltd (Manitowoc). Melrose Cranes claims damages from Manitowoc in negligence, contract and under the federal trade practices legislation in respect of severe fire damage of its mobile-crane, which occurred on the 29th June 2009. Manitowoc sold the crane to Melrose Cranes in September 2007 and from time to time serviced it under warranty. The last such service occurred at the Melrose Crane's premises on 23rd and 24th June 2009.

2 Although different causes of action are relied upon, the claim fundamentally seems to arise in negligence. Damages are sought in respect of property damage - essentially the cost of repairing the crane - and for consequential economic loss by way of business interruption. Manitowoc contests its liability, and I apprehend will seek to lead evidence that other entities carried out repairs to, or maintenance on, the crane not long before the fire. Manitowoc specifically disputes that the work performed by it caused the fire.

The nature of the dispute

3 Manitowoc served subpoenas to produce documents on three non-party respondents, being:

(a)Thomas King and Associates Pty Ltd;

(b)Greg Kelly & Associates Pty Ltd;

(c)Australian Forensic Pty Ltd.

Each of these companies has carried out factual or technical investigations into the subject matter of the dispute between Melrose Cranes and Manitowoc.

4 By prayer 6 of a Notice of Motion filed on 22nd February 2012, Manitowoc seeks access to the documents over which the second respondent to the motion claims privilege. The second respondent is Underwriting Agencies of Australia Pty Ltd (UAA), who issued a policy of insurance to Melrose Cranes covering it, inter alia, against property damage caused by fire.

5 Initially, UAA's claim for privilege was more extensive but its scope has been reduced over time since the Notice of Motion was filed. By a schedule I marked MFI 1, which I am informed was served on Manitowoc's solicitors on 27th June 2012, the number of documents in dispute has been reduced to eighteen, dated from 28th July 2009 to 18th October 2010. The schedule consists mainly of documents prepared by the three companies in the course of their investigations, and reports by them addressed to UAA's solicitors, Hicksons Lawyers. It also includes correspondence, or a record of correspondence of one type or another, passing between Hicksons on the one hand and the investigators, UAA, and Melrose Cranes on the other.

6 Mr. R. Cheney S.C, who appears for Manitowoc, and Mr. A.M. Stewart of Counsel, who appears for UAA, agree that the dispute between them is to be resolved by the application of common law principles, s.131A Evidence Act 1995 notwithstanding. This is because the person objecting to the disclosure of the documents, UAA, is not the person to whom the subpoenas were directed: State of New South Wales v. Public Transport Ticketing Corporation [2011] NSWCA 60 at [32] per Allsop P; Singtel Optus v. Weston [2011] NSWSC 1083 at [24] - 29 per White J. Both counsel agree that the onus of making good the claim lies on UAA: Grant v. Downs (1976) 135 CLR 674 at 689 per Stephen, Mason and Murphy JJ.

The position of the parties

7 UAA advanced its claim on each of two alternative bases. First, each of the documents was brought into existence for the dominant purpose of using it or its contents ... to conduct or aid in the conduct of litigation, at the time of its production, in reasonable prospect: Grant v. Downs at 677 per Barwick CJ; Esso Australia Resources Limited v. Commissioner of Taxation (Cth) (1999) 201 CLR 49 at 73 [61]. This may be conveniently referred to as "litigation privilege". Secondly, in the event that "litigation privilege" was not available because I found that litigation was not in reasonable prospect, "advice privilege" was asserted on the basis of the decision of the Full Court of the Federal Court of Australia in Pratt Holdings Pty Ltd v. Commissioner of Taxation (2004) 136 FCR 357 per Finn J at 367 [41] - 43]; Merkel J at 370 [52] and Stone J at 386 [105]. It was said, whilst not overruling it, that this decision overcame the limitation on the availability of "advice privilege", identified with the decision in Wheeler v. Le Marchant (1881) 17 Ch. D. 675; cf Nikmar Pty Ltd v. Preservatrice Skandia Insurance (1985) 3 NSWLR 44 at 52F - 55E per Wood J; DSE (Holdings) Pty Ltd v. InterTAN Inc. (2003) 135 FCR 151 per Allsop J (as the President then was) at 174 [75]; 178 [92] - 179 [96].

8 The interesting question of law underpinning UAA's second alternative may not arise for determination by me, for Manitowoc accepts that UAA had more than one purpose in commissioning the documents, one of which was to gather, and preserve, evidence to found a possible "recovery action": 20.27 - 21.37T. It is not sufficient that a relevant purpose is one of a number of purposes unless it is the dominant purpose: Esso at 68 [45], 73 [60] - [61] per Gleeson CJ, Gaudron and Gummow JJ. Manitowoc says that UAA has not established this essential condition. Alternatively, Manitowoc says that by it's conduct UAA has waived any privilege that protected the communications listed in MFI 1 from disclosure. This argument was advanced by reference to the decision of the High Court of Australia in Mann v. Carnell (1999) 201 CLR 1 at 13[28] -14[32] per Gleeson CJ, Gaudron, Gummow and Callinan JJ.

Evidence

9 Mr. Gregg Melrose notified UAA of the claim orally on 30th June 2009 by speaking to Dana Olsen, a claims manager employed by UAA. In her affidavit sworn on the 29th of March 2012 read before me, Ms. Olsen, who like all other witnesses was not required for cross-examination, gave the following evidence:

On 30 June 2009 I had a telephone conversation with Gregg Melrose ("Melrose") of the plaintiff, in the course of which Melrose and I had the following exchange:

Melrose:"I've already been involved in a legal dispute with Grove in relation to this crane. It's had problems since day one. Grove serviced the crane just before the fire. Grove have contacted me and I think they're worried that they've done something wrong and that's caused the fire.

Olsen:"We're appointing Paul Kiem to assist you in recovering the crane and to assess the damage to the crane. We're going to appoint Greg Kelly to investigate the cause of the fire. Could you take some photos of the crane before it's moved, during the recovery and after it goes back to your yard".

Melrose:"Okay. It's going to be recovered tonight and taken back to my yard. I'm arranging 24 hour security for it at the yard."

Olsen:"Okay".

...

On or about 30 June 2009 I had a telephone conversation with Paul Kiem ("Kiem") of Paul's Crane Inspections to the following effect:

Olsen:"We've got a new claim in for Melrose Cranes, their Grove 450 ton mobile crane had a fire. It's going to be recovered tonight and taken to Melrose's yard. Could you go out and have a look at it, supervise the recovery and give me an estimate on the damage. Gregg Melrose says that Grove recently serviced the crane and seem concerned they've done something wrong. Gregg also says that he's had repeated problems with the crane. Could you appoint Greg Kelly to investigate the cause of the fire".

Kiem:"Okay."

10 Mr. Kiem confirmed receipt of his instructions by emailing Ms. Olsen on the same day. Later on 30th June 2009 she had a further telephone conversation with him:

Kiem:"I've had a look at the crane and spoken to Gregg Melrose and his employees. The left turbo might have been the cause of the fire. Melrose had been having trouble with the turbo. Grove were realigning the turbo and doing some other work on it over the last week. Grove have had repeated visits to try and rectify problems while the crane's been operating. There's damage to the chassis, front cabin, three tyres and axles, the base and telecylinder sections of the boom, the hydraulics and the air and fuel lines. I think the repairs will be about $2 million:"

...

On or about 30 June 2009 I had a telephone conversation with Bob King of Thomas King & Associates to the following effect:

Olsen:"We've got a claim for Melrose Cranes. They have a Grove 450 ton mobile crane had a fire (sic). Gregg Melrose says that Grove recently serviced the crane and seems concerned that they've done something wrong. Gregg also says that he's had repeated problems with the crane. Could you investigate this issue. We've appointed Greg Kelly to investigate the cause of the fire".

King:"Okay".

11 In a second affidavit sworn on 13th April 2012, Ms. Olsen gave the following evidence:

At paragraph 20 of that affidavit [affidavit of 29th March 2012] I deposed that at all times during the period from 30 June 2009 to 27 July 2009 my intention in retaining and instructing Greg Kelly & Associated Pty Limited and Thomas King & Associates Pty limited was to ascertain the cause for the purpose of identifying whether Grove (the defendant) had done anything to cause the fire with the intention of bringing a subrogated recovery action against the defendant if possible.

By way of clarification to that statement I wish to make clear that from what was said to me by Gregg Melrose when he notified me of the claim (as set out in my earlier affidavit), from the outset it seemed to me that there was a real possibility that there would be a recovery action against the defendant. Moreover, as is my standard practice, such an action would not be pursued without first seeking legal advice on its prospects of success. The investigations by each of the investigators instructed by me were for the purpose of seeking that advice and pursuing the recovery action, if so advised.

12 In this evidence, the name Grove refers to Manitowoc.

13 The affidavit of Paul Hendriks sworn on 8th March 2012 was read. Mr. Hendriks is a partner in the firm of Hicksons Lawyers. Mr. Hendriks gave the following evidence:

On 27 July 2009 I had a telephone conversation with Phil Turner and George Grasso of UAA. In the course of that conversation George Grasso and I had an exchange to the following effect:

Grasso:"Our insured, Melrose Cranes, has had a crane damaged by fire. The claim is likely to be over $1 million. We've accepted Melrose's claim. Melrose believes that the fire may have been caused by something Manitowoc did to the crane. Manitowoc did some work around the engine and turbos just before it went back into service. We would like to recover against Manitowoc if possible. We've instructed Greg Kelly to investigate the cause of the fire and Bob King to do a factual investigation. We'd like you to take over the instructions to Kelly and King and to advise on whether we have a recovery claim and what further information we need. We'd also like you to instruct Jeff Gudmann to provide a second opinion on the cause of the fire."

Hedricks:"Okay, we'll do that."

...

On 27 July 2009 I had a telephone conversation with Bob King of [Thomas King & Associates Pty Ltd] to the following effect:

Hendriks:"UAA have instructed us to advise on recovery. Please complete your initial investigation and report to us"

King:"Okay"

My file note... records that I phoned Jeff Gudmann to instruct him as I had been requested by UAA, but he could not take the instruction. On 28 July 2009 I therefore had a telephone conversation with Murray Nystrom of [Australian Forensic Pty Ltd], to the following effect:

Hendriks:"UAA have a mobile crane that was damaged in a fire. They've asked us to advise on recovery. Some work was done around the engine and turbos of the crane shortly before the fire. We need to know what caused the fire. Bob King is doing a factual investigation. The crane is available for inspection. Are you able to come down and take a look and let us know what you think?

King:"Yeah I'd be happy to do that".

...

At all times from 27 July 2009 Hicksons has been retained by UAA for the purpose of UAA obtaining legal advice as to a subrogated recovery action against the defendant and in anticipation of UAA commencing subrogated recovery proceedings against the defendant (which has since occurred).

At all times from 27 July 2009 in respect of GKA and TKA and 28 July 2009 in respect of AF, Hicksons has retained GKA, TKA and AF to assist in gathering information and providing expert opinion for the purpose of providing UAA with legal advice as to a subrogated recovery action against the defendant and in anticipation of UAA commencing subrogated recovery proceedings at the defendant.

The documents in respect of which privilege is claimed by UAA which are dated 27 July 2009 and thereafter were all prepared pursuant to the aforesaid retainers.

In that regard, each of the reports of TKA and AF in respect of which privilege is claimed is addressed to me.

14 Mr. Hendriks annexed to his affidavit, as annexures "E" to "G" respectively, emails to each of Mr. Kelly, Mr. King and Mr. Nystrom confirming their instructions.

Resolution of the privilege issue

15 To qualify as the dominant purpose, the relevant purpose must be the ruling, prevailing or most influential purpose: Mitsubishi Electric Australia Pty Ltd v. Victorian WorkCover Authority (2002) 4 VR 332 at 336 [10]; Federal Commissioner of Taxation v. Spotless Services Limited (1996) 186 CLR 404 at 416. It is not sufficient that the purpose is the primary purpose or even a substantial purpose: Grant v. Downs at 678 per Barwick CJ. The test is one of "clear paramountcy": Waugh v. British Railways Board [1980] AC 521 at 543; Sydney Airports Corporation Limited v. Singapore Airlines Limited [2005] NSWCA 47 at [7].

16 Before it can be said that litigation is reasonably apprehended, there must be a real prospect of that litigation, as distinct from a mere possibility, but it does not have to be more likely than not: Mitsubishi Electric at 341 [19]; State of New South Wales v. Jackson [2007] NSWCA 279 at [67].

17 These questions of dominance, and whether litigation can be reasonably anticipated, must be determined objectively: Grant v. Downs at 682 per Stephen, Mason and Murphy JJ. [O]ne does not look solely at the evidence or intention of the maker of a document to determine what was the dominant purpose or indeed any purpose, for which the document came into existence: Australian Competition and Consumer Commission v. Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 545F per Goldberg J.

18 It follows from Goldberg J's observation cited in the immediately preceding paragraph that in an insurance context, the intention of the insurer who commissioned the report, rather than the intention of its author, may better inform the inquiry; this indeed follows from Barwick CJ's reference to the person or authority under whose direction the document was produced or brought into existence: Grant v. Downs at 677; Guinness Peat Properties Ltd & Ors. v. Fitzroy Robinson Partnership [1987] 2 All ER 716 at 722 - 724 per Slade LJ.

19 As I have said, it is common ground that Ms. Olsen, who was the person under whose direction the documents were produced or brought into existence, at least initially had more than one purpose. To assist me in determining whether the relevant purpose enjoyed that quality of clear paramountcy, the parties referred me to statements in the cases reflecting what I would regard as an expression of the judiciary's collective experience of "how things work" in practice. These general observations are, of course, factual considerations that may inform the probabilities, rather than statements of principle, but they do help to contextualise the inquiry (see [21]-[24] below.)

20 Ms. Olsen's statement as to her intentions in her second affidavit is relevant and admissible, but cannot be determinative. More weight should be accorded to the inferences that can be naturally drawn from what was said by each party to the conversations to which she deposes. From that material I infer that from the outset, that is from the time the claim was first made orally to her by Melrose Cranes, she was aware that the insured attributed responsibility for the damage to Manitowoc. I further infer that she acted with celerity to initiate inquiries from a number of investigators and experts having different roles, for two purposes. First, to inform herself as to the facts for the purpose of equipping herself to make a decision whether or not to admit the claim. And secondly, to preserve and document the relevant evidence for submission to solicitors by her for their advice about whether a recovery action was available. In this latter regard, I understood Manitowoc to accept that this was a purpose apt to attract "litigation privilege" if that purpose was the dominant purpose.

21 In Australian Safeway Stores Goldberg J pointed out page 545 - 6:

The process of investigation as logically anterior to, and a precursor to, the point at which it may be said the proceedings are prospective or reasonably anticipated. If evidence is required for proceedings it can be expected that until that evidence gathering process is well advanced, a view will not be able to be formed that proceedings are prospective or reasonably anticipated. That is a reason why it is difficult to ascribe a dominant purpose to the preparation of the anticipated proceedings before the evidence gathering process is well advanced and the evidence has been evaluated.

On the other hand, in Tooheys Ltd v. Housing Commission of New South Wales (1952) 20 LGR (NSW) 236 at 245 - 6 it was said that:

[i]n common experience, happenings of some kinds very often lead to litigation, and the occurrence of such an event would found a sufficient anticipation of litigation.

22 In Cataldi v. Commissioner for Government Transport (1970) 1 NSWR 65, the Court of Appeal at [68] picked up the statement from Tooheys Ltd and pointed out that in some cases:

The circumstances in which documents came into being are such as to compel the inference that it was a purpose of their coming into existence that they would serve as materials upon which professional advice would be sought or that they would be used for the conduct of litigation arising out of the accident.

And in Mitsubishi Electric Batt JA at 342 [23], having referred to the dictum of Goldberg J in Australian Safeway Stores, said:

There must be many cases where it can be said that litigation is likely before the evidence gathering process has even begun

In that case, the factual conclusion was although an inquiry as to the facts was being commissioned, the results of it were to be given directly to lawyers for their advice.

23 In Mitsubishi Electric however, the party on whose behalf the report was commissioned was a defendant who had already received notice of an occurrence of a type likely to give rise to a claim. And one can well accept that in circumstances such as those the force of circumstance strongly suggests that the relevant purpose is dominant.

24 On the other hand, in a case like the present, even where the insurer has in mind the prospect of a recovery action from the outset, the logically anterior question must remain whether to admit the claim. And a decision about that cannot be made until more is known about the facts. This case is different from Nikmar where an experienced investigator was suspicious of arson at the conclusion of his preliminary investigation. Notwithstanding the assertions made by Ms. Olsen in her second affidavit, which I accept are honestly made, taking an objective view, I am not satisfied that UAA has demonstrated on the balance of probabilities that from the 30thJune 2009 the purpose of bringing a recovery action enjoyed clear paramountcy over it's need to know the essential facts to enable it to decide whether to admit the claim.

25 However by the time that Mr. Grasso spoke to Mr. Hendriks on 27th July 2009 that initial phase had passed, a decision had been made to admit the claim, and the focus was on the prospective recovery action. Given that it was known that this was likely to be a large claim exceeding as much as $2 million in value, and the insured (Melrose Cranes) had a strong view about the responsibility of Manitowoc, in my judgment the matter, by then, had been identified as one of that kind which [i]n common experience ... very often lead[s] to litigation. Mr. Hendriks, immediately upon receipt of his oral instructions, re-instructed the persons from whom reports had been commissioned and another. From that point the purpose of advising on recovery proceedings had attained the requisite clear paramountcy.

26 Moreover, to adapt the language of Batt JA from Mitsubishi Electric at [19], from 27 July 2009 there was a real prospect of recovery proceedings being instituted, as distinct from a mere possibility, although I could not say that the institution of such an action was then more likely than not.

27 It follows from this that the documents listed in MFI 1, each of which post-date Mr. Hendriks' involvement in the case, are protected from disclosure by "litigation privilege".

28 Accordingly, it is unnecessary for me to decide whether the documents are likewise covered by "advice privilege". In this regard I note that there is an apparent tension between the decision of the Court of Appeal of Victoria in Mitsubishi Electric and the Full Court of the Federal Court in Pratt Holdings. In the former case, Batt JA held that "advice privilege" is not available where one of the parties to the communication is a third party who is not the agent of the client for the purpose of the communication. This might be called the traditional view of Wheeler v. Le Marchant. See also Nickmar and DSE (Holdings) referred to above. In Pratt Holdings neither Finn J nor Stone J found it necessary to reconcile the apparent differences between "litigation privilege" and "advice privilege" as expressed in Wheeler v Le Marchant, but neither applied it: 361 [10] and 381 [85].

29 I interpolate that the continued applicability of Wheeler v Le Marchant had been questioned at first instance, and in written submissions on appeal, in Mitsubishi Electric, but the point was abandoned on the hearing of the appeal: 335[8]-336[9]. Batt JA's dictum quoted above was said in approbation of said counsel's sagacity rather than to quell any remaining controversy. With respect this affects the precedential value of his Honour's remarks.

30 To my mind it is clear that both Finn J and Stone J were seeking to develop "advice privilege" in a way which would modernise the rule in Wheeler v. Le Marchant. At page 367 [41] it is clear that Finn J thought the question of agency was not a principled reason for denying privilege. At 386[105] Stone J arrived at a similar conclusion. In her Honour's view the agency question did not provide a coherent rationale for "advice privilege". Her Honour would have given precedence to the dominance of the purpose. And Finn J would focus on the nature of the function the third party performed.

31 To my mind there was a clear divergence between the Victorian Court of Appeal and the Full Court of the Federal Court relating to common law "advice privilege" and the present status of the rule stated in Wheeler v. Le Marchant. In the absence of a directly binding decision of the New South Wales Court of Appeal I would be bound to follow a decision of another Australian intermediate court of appeal unless convinced it is plainly wrong: Farah Constructions Pty Ltd v. Say-Dee Pty Ltd (2007) 230 CLR 89 at 151 - 152 [135]; CAL No. 14 Pty Ltd v. Motor Accidents Insurance Board (2009) 239 CLR 390 at 411 [49] - 413 [51].

32 Naturally, particular difficulties arise where a first instance judge is required to choose between competing lines of thought in Australian intermediate Courts of Appeal not forming part of the judicial hierarchy in which the judge is placed. However, Pratt Holdings was considered, obiter dictum, in the New South Wales Court of Appeal in Meteyard v. Love (2005) 65 NSWLR 36 by Basten JA, with whom Beazley and Santow JJA agreed. That, however, was an Evidence Act 1995 case, not a common law case, concerning s.118 of that Act in the form that provision took before its amendment by the Evidence Amendment Act 2007 commencing on 1st January 2009. In its present form the language of par. (c) of s.118 would clearly abrogate the rule in Wheeler v. Le Marchant.

33 Meteyard was an Evidence Act case because s.118 of the Act was picked up and applied to interlocutory applications by Part 36 Rule 13 of the then Supreme Court Rules (Meteyard at 63 [102]). The Court held that the rule in Wheeler v. Le Marchant did not apply to s.118 by a process of interpretation, the result of which was to give the concept of "agent" where it appears in the definitional s.117 a wider operation ... than that identified in Wheeler: 68 [121]. With respect it seems tolerably clear that, had the common law been in play, the Court may not have followed Pratt Holdings. No conclusion about this was expressed because it was unnecessary for the Court to do so: 62[97]; 64[107]; 64[109]; 68[123].

34 Basten JA's analysis of Wheeler v. Le Marchant is at 60[90] and 64[109]. At 68[121] his Honour said:

As noted above, it is clearly arguable that the relevant principle identified in Wheeler v. Le Marchant was more restrictive of the immunity than recent Australian cases would allow.

35 The phrase clearly arguable is, of course, a long way short of saying Pratt Holding was plainly wrong, assuming the former phrase refers to it. Basten JA's language is restrained, but with respect, his analysis demonstrates that the full Federal Court's decision extends "advice privilege" in a manner inconsistent with the traditional view of Wheeler v. Le Marchant. See also Westpac Banking Corp. v. 789TEN Pty Ltd (2005) 55 ACSR 519 [24] - [29]; [38] - [40] per Tobias JA with whom Beazley JA and Campbell AJA agreed. 789TEN, however, was another Evidence Act case.

36 The traditional view is adhered to in New Zealand: Guardian Royal Exchange Assurance of New Zealand v. Stuart [1985] 1 NZLR 596; C-C Bottlers Limited v. Lion Nathan Limited [1993] 2 NZLR 445. It continues to be applied in Victoria: Orica Australia Pty Ltd v. Limit (No. 2) Limited [2008] VSC 247 (cf Samenic Limited v. APM Group (Aust.) Pty Ltd [2011] VSC 194, an Evidence Act case in the current form. A more expansive view was taken in Queensland by Holmes J in GSA Industries (Aust.) Pty Ltd v. Constable [2002] 2 Qd R 146 [19] - [22]; and also in South Australia. The view is that there is no difference between "litigation privilege" and "advice privilege" when it comes to communicating with third parties: Health and Life Care Limited v. Price Waterhouse (1997) 69 SASR 362 per Doyle CJ. In Western Australia different incidents of "litigation privilege" and "advice privilege" are recognised: Public Transport Authority of Western Australia v. Leighton Contractors Pty Ltd (2007) 34 WAR 279 at [13]; [18] and [20].

37 I point out that in DSE (Holdings) Allsop J decided that "advice privilege" was not co-extensive with "litigation privilege" (his Honour was the successful counsel in Nickmar), but his Honour, with respect, seemed to take no narrow view about the scope of an agency to communicate for the purpose of the rule in Wheeler v Le Marchant: 177[89] - 178[92]; at 178[92] his Honour said:

...the appointment of someone to liaise with a lawyer and to include in that person's retainer (as here) a standing brief to communicate such matters about the client's affairs and its views on the client's affairs as is thought appropriate, can, it seems to me, be seen as the appointment of an agent to communicate. Though such a role goes beyond being a messenger to communicate, it involves, nevertheless, the retention of an agent to communicate.

However, unlike Finn J and Stone J (his Honour's decision predated Pratt Holdings), his Honour regarded it as necessary ... that the third party be the client's deputed agent to communicate with the lawyer in connection with the provision of legal advice: DSE (Holdings) at 179 [96].

38 It seems to me that it can be said that the Australian common law in relation to "advice privilege" is in something of a state of flux, assuming the bifurcation forms part of the common law here. There is much to be said, as many learned Judges have, for the view that as there is a single rationale underpinning legal professional privilege in both its branches, and that the traditional view of Wheeler v. Le Marchant does not represent the current state of the common law in Australia.

39 The idea that there is a single rationale underlying legal professional privilege in the common law in Australia is well illustrated by the analysis of Stone J in Pratt Holdings from 379[78] - 381[84]. As is well known, since Baker v. Campbell (1983) 153 CLR 52, it has been recognised in Australia that legal professional privilege is no mere exclusionary rule of evidence, but is a rule of substantive law supporting an important civil liberty: R. v. P. (2001) 53 NSWLR 664 at 679[43]; Waterford v. Commonwealth (1987) 163 CLR 54 at [64] - [65]; Esso at [64] - [65]; Commissioner of Australian Federal Police v. Propend Finance Pty Ltd (1997) 188 CLR 501; The Daniels Corporation International Pty Ltd v. Australian Competition and Consumer Commission (2002) 213 CLR 543. These cases all concerned extra-curial statutory compulsion by manifestations of the executive. In Daniels at 552 [10], Gleeson CJ, Gaudron, Gummow and Hayne JJ said:

Being a rule of substantive law and not merely a rule of evidence, legal professional privilege is not confined to the processes of discovery and inspection and the giving of evidence in judicial proceedings. Rather and in the absence of provision to the contrary, legal professional privilege may be availed of to resist the giving of information or the production of documents in accordance with investigatory procedures ... (footnotes omitted).

There is a difference, of course, between public investigatory procedures supported by legal compulsion, and the private law contractual interactions of an insured and its insurer. In my view nonetheless, these signal decisions make it inapt to speak of "advice privilege" and "litigation privilege". A passage cited by Stone J (Daniels Corp. at 552[9]) makes it abundantly clear that there is a rule of substantive law (emphasis added) which covers obtaining legal advice or the provision of legal services, including representation in legal proceedings. Were I free to make my own decision about the matter I would accept UAA's submission that the traditional view of Wheeler v. Le Marchant no longer represented the common law in Australia.

40 In these circumstances I would not say, with great respect, that Pratt Holdings is plainly wrong, far from it. But in view of the conflict in authority at the level of Australian intermediate courts of appeal, nor can I follow it where it appears to conflict with considered dicta in the New South Wales Court of Appeal in Meteyard and Westpac Banking Corp, both of which treat Wheeler v Le Marchant as forming part of Australian common law.

41 Accordingly, I would apply the traditional view of the rule in Wheeler v. Le Marchant and decide, to adapt the language of Allsop J from DSE (Holdings) at 178[92], that the retention of a loss adjustor, investigator or expert to prepare a report about the cause and origin of the fire which damaged the crane, which it is contemplated will be submitted to lawyers for advice, is not the retaining of a third party to act as an agent to communicate with the lawyer on behalf of the client. On this basis I would have held that the documents enumerated in MFI 1 were not protected from disclosure by "advice privilege".

Waiver

42 The onus of establishing waiver is on the party asserting it. Manitowoc relied upon Mann v. Carnell at [29]:

Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank [(1993) 35 NSWLR 110]. the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

43 Manitowoc also called in aid ML Ubase Holdings Pty Ltd v. Trigem Computer Inc. (2007) 69 NSWLR 577 at 590 [35]. I understood this argument to be that other documents in play between the parties, which referred to the documents in dispute, were inconsistent with the maintenance of the confidentiality of those latter documents. This inconsistency was said to make it unfair in the context of the litigation to permit the privilege to be maintained. Mr. Cheney S.C. took me to a number of the documents contained in Vol. 3 of the material handed up entitled "Waiver Bundle". I flagged, and marked as Exhibit B, those documents to which express reference was made. Exhibit B consists of the following pages, each marked with a yellow 'round' at its foot:

pp 1, 20, 23, 35, 36, 38, 40, 54, 55, 56, 164, 168 (which I understand is the Greg Kelly & Associates report referred to in a number of the other documents), 172, 187 - 193 (a statement of Mr. Gregg Melrose, the managing director of Melrose Cranes), 194, 195 (which includes a reference to the report by Greg Kelly and another by John Gray, each of which has now been produced), 211, 220, 221, 222, 223 and 226.

44 Page 195, which is a printout of an email from Michael Maher, an investigator consulting with Melrose Cranes, to Mr. Melrose, does seem to disclose in substance the contents of Mr Kelly's report, and also a report from Mr. John Gray, but neither of these documents are the subject of the present claim. I am informed that both have been produced for inspection by Manitowoc.

45 Page 211 is another email from Mr. Maher to various recipients. It purports to relay the views of a Mr. Dave Spears, who is the other person who performed work on the crane prior to the fire. No document from Mr. Spears is contained in MFI 1 and on my reading nothing in the email discloses the contents of any document which is.

46 Page 220 is another email from Mr. Maher. It refers to some experiments apparently carried out by him and refers to reports from John Gray and Tony Cafe but says nothing about their contents. No document authored by either Mr. Gray or Mr. Cafe is subject to a claim for privilege on behalf of UAA.

47 Page 221 is yet another email from Mr. Maher which attaches a draft report of Mr. Gray. It refers to other persons engaged by UAA but says nothing about the contents of their reports, if those reports are even extant at that time.

48 Page 222 is a printout of a copy of an email from Mr. Melrose to Ms. Olsen. It refers to the investigations of Mr. Gray and Mr. Cafe, whose reports were apparently attached to the original email. Again, these reports are not the subject of a claim for privilege.

49 Page 223 refers again to the Kelly report, which has been produced. It is another email from Mr. Melrose, this time to Mr. Maher, and comments that the Kelly report ... differs slightly from ours.

50 Page 226 is a letter from Hicksons to Melrose Cranes' solicitors dated 9th March 2010. It attaches a copy of the Greg Kelly report - which commences at page 168 of Exhibit B - and at dot-point 4 states that the author is aware that Kelly's opinion as to the cause of the fire has altered somewhat from that expressed in his draft report. It does not in any way say what the alteration is or in any way disclose the substance of Mr Kelly's current opinion. I note, however, that item 5 on MFI 1 is an email from Hicksons to Greg Kelly & Associates dated 7th August 2009 and item 18 is a letter from Greg Kelly & Associates to Hicksons dated 18th October 2010, therefore postdating page 226 by some 7 months. There is no document, the subject of a claim, from Greg Kelly & Associates to Hicksons or UAA between 7th August 2009 and 9th March 2010. The author of the letter of 9th March 2010 states that Mr. Kelly's opinion has altered on the basis of the information contained in what I infer are the reports of Mr. Gray and Mr. Cafe respectively. Presumably, the author of the letter of 9th March 2010 had the benefit of a conversation with Mr. Kelly at some stage, but that is not clear. In my judgment there is nothing in the letter of 9th March 2010 which impliedly waives the privilege which I have found protects items 1 to 18 in MFI 1 from disclosure. In particular, in my judgment there is no inconsistency between the conduct of UAA, or its solicitors, and the maintenance of the confidentiality in the communications passing between it and its solicitors and other service providers to which I have ruled it is otherwise entitled.

51 At 32.15T Mr. Cheney S.C. acknowledged that nothing in the material he had taken me to disclosed the contents of items 1 to 18 on MFI 1. In the final analysis, Manitowoc's argument is that the constant references, in the various emails and correspondence which have been disclosed, to the fact that named investigators and experts were carrying out work relating to the fire is utterly inconsistent with the maintenance of or the assertion of confidentiality or privilege in the contents of the reports (32.45T). For the reasons I have set out above, I do not agree.

Costs

52 Over the time during which Manitowoc's application has been pending, UAA has altered its position to reduce the number of documents in dispute. That is to say it has disclosed about 12 of the 30 or so documents originally the subject of the claim. Its final position was formulated only a business day or two before Melrose Cranes' application came on for hearing before me.

53 In view of this circumstance I have considered whether some order other than costs on the ordinary basis following the event, in accordance with r 42.1 Uniform Civil Procedure Rules 2005, should be made. It may be argued that UAA's success at least in part depended on something analogous to a late amendment. However, the analogy is not entirely apt. UAA always maintained its claim with respect to the 18 documents in dispute before me. It would be pointless to consider how it may have fared had it not modified its position.

54 I think it is apposite to say, however, that Manitowoc did not relent in its application in response to UAA's change in position. In the circumstances, acknowledging that I have not heard from the parties on this issue, I am not persuaded that any order for costs other than the usual order should be made. Either party may, of course, avail itself of r 36.16 Uniform Civil Procedure Rules 2005, if so advised.

55 Given that UAA is not a party to the proceedings, I think it appropriate that the costs which I propose to award should be made payable forthwith in accordance with r 42.7

56 My orders are:

1.The relief sought in prayer 6 of the defendant's Notice of Motion filed on 22nd February 2012 is refused.

2.The defendant is to pay Underwriting Agency of Australia Pty Limited's costs of the application in relation to prayer 6 on the ordinary basis forthwith after they have been agreed or assessed.

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Amendments

27 August 2012 - - Solicitors A.M. Stewart (second respondent)amended to (Hicksons Lawyers (second respondent)
Amended paragraphs: Representation

Decision last updated: 27 August 2012