Moolarben Coal Operations Pty Ltd v Komatsu Australia Pty Ltd

1. [1]

   This matter is listed for hearing on 24 August 2026 with an estimate of 10 days. The proceedings arise from the destruction by fire on 26 October 2016 of a Komatsu 930-E haul truck (“the haul truck”) supplied by the defendant and which was at the time of the fire in use by the plaintiff at its mining site. The plaintiff alleges that the fire was caused by a defect in the haul truck. The plaintiff claims replacement and associated costs under warranty provisions of the supply agreement for the haul truck. The defendant denies that the fire was caused by a defect in the haul truck and also denies a breach of warranty. The defendant also contends that the plaintiff failed to comply with a notice and other preconditions in the supply agreement for a warranty claim, which it says is fatal to the plaintiff’s claim.

2. [2]

   The matter was first before me in May 2024. For various reasons including the unavailability of counsel and the Court, the matter was marked part-heard and did not resume until 1 December 2025. At the commencement of the proceedings before me on 1 December 2025, I allowed the plaintiff’s motion filed on 9 February 2024 seeking leave to rely on an expert report of Dr Robert Casey, mechanical engineer, dated 17 January 2024 and an affidavit of Kane Sebastian Hayes affirmed on 30 January 2024. Those documents were exhibited to an affidavit of Ms Julia Racheha affirmed on 9 February 2024 which was read and deployed in the proceedings. I ordered the plaintiff to pay the costs of and incidental to its notice of motion seeking leave to rely on the report and affidavit, and any costs thrown away by reason of the late service of that evidence.

3. [3]

   Before me for determination are two additional notices of motion. The first motion concerns privilege arising from a Notice to Produce served by the defendant on the plaintiff (“the NTP motion”). The second motion concerns privilege with respect to documents produced on subpoenas by third parties (“the subpoenas motion”).

4. [4]

   Little was agreed upon by the parties at the commencement of the hearing. The material occupies more than 15 lever arch folders. However, by the time counsel orally addressed, much of the dispute had narrowed and documents and communications alleged to attract either legal professional privilege, client legal privilege or litigation privilege had significantly diminished.

Evidence

1. [5]

   Evidence on all motions was evidence in the others.

2. [6]

   Several documents were marked as exhibits. On the NTP motion, the following affidavits were read without objection and without requiring the deponent for cross-examination:-

   1. (1)

      Affidavit of Julia Racheha (now Dyson) affirmed on 10 October 2024;

   2. (2)

      Affidavit of Julia Dyson affirmed on 26 November 2025; and

   3. (3)

      Affidavit of Julia Racheha (now Dyson) affirmed on 12 April 2024.

   4. (1)

      Affidavit of Eric Mark Braun sworn on 24 September 2024;

   5. (2)

      Motion seeking summary dismissal of plaintiff’s claim and affidavit of Eric Mark Braun sworn on 8 July 2024;

   6. (3)

      Motion seeking leave to serve Statement of Claim and/or Amended Statement of Claim and affidavit of Julia Racheha (now Dyson) affirmed on 18 July 2024; and

   7. (4)

      Affidavit of Julia Racheha (now Dyson) affirmed on 16 August 2024.

3. [7]

   On the subpoenas motion the following affidavits were read without objection and without requiring the deponent for cross-examination:-

   1. (1)

      Affidavit of Julia Dyson affirmed on 1 December 2025;

   2. (2)

      Affidavit of Julia Racheha (now Dyson) affirmed on 12 April 2024;

   3. (3)

      Affidavit of Julia Racheha (now Dyson) affirmed on 16 August 2024; and

   4. (4)

      Affidavit of Julia Dyson affirmed on 26 November 2025.

   5. (1)

      Affidavit of Eric Mark Braun sworn on 13 March 2024;

   6. (2)

      Affidavit of George Chris Comino sworn on 1 May 2024; and

   7. (3)

      Affidavit of Eric Mark Braun sworn on 3 September 2024.

Principles with respect to Privilege

1. [8]

   The principles with respect to legal professional privilege, client legal privilege and litigation privilege are not in dispute.

2. [9]

   The onus is on the party asserting the privilege to prove that privilege on the balance of probabilities, whether pursuant to the Evidence Act 1995 (NSW) or at common law.

3. [10]

   In Hancock v Reinhart (Privilege) [2016] NSWSC 12 (“Hancock”), Brereton J said the following:-

4. [11]

   It is agreed that the party asserting waiver of privilege, either express or implied, bears the onus of proof on the balance of probabilities.

5. [12]

   I note that I have not looked at any of the documents said to be privileged, and neither was I invited to do so.

6. [13]

   I observe that in this case, privilege has been asserted by Ms Dyson on behalf of the plaintiff. Aside from some few documents that on their face, because of the description of the document itself, must be privileged, there has been no attempt to expose any facts from which I could have made an informed decision about the supportability of the claims. It is not enough to put together a schedule with the date of the creation of the document or communication, its title and to whom it was provided. For every document for which privilege is claimed, it is essential to include the relevant characteristics of that document from which an inference can be drawn about its status as a privileged document. This did not occur in the present proceedings. Indeed, there is no evidence on behalf of the plaintiff whatsoever that any person has inspected any document over which privilege is claimed so that its dominant purpose can be discerned.

The NTP Motion

1. [14]

   A Notice to Produce to Court dated 10 September 2024 was served on the plaintiff seeking production of documents. A claim for privilege was maintained by the plaintiff with respect to all documents sought in the NTP. Thus, a Notice of Motion seeking orders that the plaintiff produce the documents sought in the NTP was filed on 24 September 2024. The documents sought by the defendant are said to arise from an affidavit of Michael Roberts dated 25 October 2022 (“the Roberts affidavit”), then solicitor for the plaintiff, filed and evidently read in the proceedings at a very early stage. It was certainly deployed. That affidavit, entitled “Affidavit in support of application to file a Statement of Claim without an affidavit verifying” is also referred to in the affidavits of Ms Racheha affirmed on 18 July 2024, 16 August 2024 and 10 October 2024. The defendant also seeks documents referred to in Ms Racheha’s affidavit of 16 August 2024.The Roberts affidavit was tendered in these proceedings.

2. [15]

   It is agreed that Division 1 of Part 3.10 of the Evidence Act applies to the NTP because of s 131A of that Act, which imports s 122 which concerns the loss of client legal privilege.

3. [16]

   During argument before me, issues with respect to the NTP motion were considerably narrowed. The plaintiff’s claim for privilege (identified as confidential communications and/or documents to or from Vardanega Roberts Solicitors or Mills Oakley Solicitors and/or documents created at their request) was set out in a Schedule dated 25 November 2025 marked as MFI 11 in the proceedings. The defendant produced an aide memoire setting out brief reasons why the privilege claims could not be maintained. This document was marked as MFI 9.

4. [17]

   The defendant took a global objection to all claims for privilege on the basis that there was an absence of evidence by the plaintiff setting out the reasons why each document or communication was said to attract privilege.

5. [18]

   The defendant did not press paragraph 1 of the Notice to Produce.

6. [19]

   As to paragraph 2(a), the defendant says that the effect of paragraphs 4 and 5 of Mr Roberts’ affidavit is that Pioneer was no longer instructing him and so that any steps to obtain instructions from Pioneer could not have been for the dominant purpose of Pioneer being provided with professional legal services. I reject this argument, as it appears that Mr Roberts’ belief was that Pioneer was providing instructions. In my view there has been neither express or implied waiver of privilege. In my opinion, the documents sought are prima facie privileged and are not required to be produced.

7. [20]

   The same arguments were made with respect to paragraph 2(b) with respect to the transfer of the file from Pioneer to Riverstone LLC. My finding is the same. In my opinion, the documents sought are prima facie privileged and there has been no waiver. These documents are not required to be produced.

8. [21]

   As to paragraph 2(c), in my opinion the documents sought are prima facie privileged, there has been no waiver and the documents are not required to be produced.

9. [22]

   As to paragraphs 2(d) and paragraph 3, being the legal advice of Danny Feller SC referred to in paragraphs 7 and 8 of the Roberts’ affidavit, whilst that advice was clearly privileged, it has been expressly waived by the words used by Mr Roberts, as he has disclosed the substance, conclusion and effect of that advice. In my opinion, the privilege has been waived on the basis of inconsistency pursuant to s 122(2) of the Evidence Act as there has been a voluntary disclosure pursuant to s 122(3)(a) of the Evidence Act. Therefore, all advices and file notes and/or transcripts of the advice given by Mr Feller SC on 14 October 2022, 17 October 2022 and 24 October 2022 are to be produced to the Court with immediate access to the defendant.

10. [23]

    As to paragraph 2(e), in my opinion Mr Roberts has neither expressly or impliedly waived privilege, and the documents sought – other than those that must be produced in accordance with paragraph 2(d) – are not required to be produced.

11. [24]

    As to paragraph 2(f), the plaintiff has nothing to produce.

12. [25]

    As to paragraph 2(g), the plaintiff has nothing to produce.

13. [26]

    As to paragraph 2(h), there has been neither express or implied waiver of privilege over any instructions, which prima facie must be privileged, and the documents sought are not required to be produced.

14. [27]

    As to paragraph 4, those documents have already been produced.

15. [28]

    As to paragraphs 5, 6 and 8, the plaintiff has nothing to produce.

16. [29]

    As to paragraph 7, it is agreed that it repeats the document request of paragraph 2(e) and I repeat what I have said above.

17. [30]

    Paragraph 9 was not pressed by the defendant.

18. [31]

    As the defendant has only been partially successful on the motion, I make no order as to costs to the intent that each party bear its own costs.

The Subpoenas Motion

1. [32]

   The onus of proof of establishing that the documents identified in the Fourth Amended Schedule annexed to Ms Dyson’s affidavit affirmed on 1 December 2025 are subject to legal professional privilege or client legal privilege rests upon the plaintiff on the balance of probabilities. The onus of proof with respect to waiver, either express or implied, rests upon the defendant.

2. [33]

   In Lazar v R [2021] NSWCCA 132 (“Lazar”), Beech-Jones J, as his Honour then was, said at [23]:-

3. [34]

   Here, as the plaintiff is the person taking the objection to documents produced by others on subpoena, the common law with respect to legal professional privilege applies (rather than that of client legal privilege pursuant to the Evidence Act), including the common law principles of waiver. I observe that nothing turns on any perceived distinction between the tests of client and legal professional privilege and waiver at common law pursuant to the Evidence Act.

4. [35]

   The common law test with respect to legal professional privilege is materially identical to that contained in the Evidence Act, i.e. it is the dominant purpose test. The dominant purpose test was adopted by a majority of the High Court as the preferred test for legal professional privilege at common law in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67. This is uncontroversial in these proceedings.

5. [36]

   In Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278, Moshinsky J said of the privilege at [143]:-

6. [37]

   As to the common law with respect to the waiver of legal professional privilege, in Lazar, Beech Jones J said at [24]-[25]:-

7. [38]

   I observe that Mr Feller SC, who appeared on behalf of the plaintiff in the December 2025 proceedings, accepted that I was bound by Kinghorn in the Court of Criminal Appeal and, at least as a matter of comity, by Kinghorn at first instance (R v Kinghorn (No 4) [2019] NSWSC 1420 per Adamson J, as her Honour then was). However, he reserved his position to challenge the correctness of Adamson J’s decision with respect to rule 1.9(4A) of the Uniform Civil Procedure Rules 2005 (“UCPR”), where her Honour rejected an argument that the use of the indefinite article in the sub-rule’s opening words (“a person”) conferred standing upon a person other than the producer of the document to object to production on the ground of privilege. Mr Feller’s position is noted, as requested.

8. [39]

   There are two issues on the subpoenas motion. The first issue is whether the plaintiff has established its claim for legal professional privilege over the documents in the Fourth Amended Schedule annexed to the affidavit of Ms Dyson affirmed on 1 December 2025, and which is now MFI 10. The second issue is, if legal professional privilege has been established, whether the defendant has established either express or implied waiver by the plaintiff of any such privilege. The defendant helpfully reduced its arguments in a table which is now MFI 10.

9. [40]

   As I have said, during the time that the matter was part-heard, issues have significantly narrowed between the parties. The defendant now seeks production of the following documents produced on subpoena:-

   1. (1)

      Documents produced by Technical Assessing;

   2. (2)

      Document produced by ALS Limited;

   3. (3)

      Documents produced by AON Risk Services Australia Limited (“AON”); and

   4. (4)

      Documents produced by RT Casey Pty Ltd.

10. [41]

    I observe that as to the documents asserted to attract legal professional privilege and produced on subpoena by Technical Assessing, ALS Limited and AON, in my opinion the plaintiff has failed to prove, on balance, that any of the documents are privileged. To paraphrase Brereton J in Hancock, there has been a failure by the plaintiff to set out the facts that establish each document it claims privilege over is properly made. That is unsurprising, as no person attests to looking at any of the documents. I repeat, the evidence must reveal the pertinent characteristics of every document over which a claim for privilege is made. There is no such evidence before me, and I note that the Fourth Further Amended Privilege Schedule is not evidence from which I can draw an inference that the documents noted within it are the subject of privilege. On that basis alone, I reject the claims for privilege made with respect to documents produced by Technical Assessing, ALS Limited and AON. Notwithstanding that comment, in my opinion there are additional reasons for disallowing the claims for privilege with respect to each production on subpoena.

11. [42]

    As to the documents produced by Technical Assessing, whatever was the subject of the advice noted in the description to the document in the Fourth Further Amended Privilege Schedule, it was not kept confidential as it was shared by the then solicitors of the plaintiff (Ashurst) with the solicitors for the defendant (Norton Rose Fulbright Australia (“NRFA”)) in an insurance dispute which settled in June 2020: see the affidavit of Ms Racheha affirmed on 12 April 2024. There is no suggestion that common interest privilege is claimed and in any event, privilege is not maintained where material is shared between parties whose interests are adverse to one another: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 410. Further, the substance of the advice has already been disclosed in documents produced without objection by AON: see the letter from Hamilton Locke to Mills Oakley dated 1 March 2024 at page 21 of the affidavit of Eric Braun sworn on 13 March 2024, and various documents disclosing that advice at pages 34 to 65. Finally, the substance of the Technical Assessing advice has been disclosed by the plaintiff in its own evidence: see pages 110 to 133 of the affidavit of Eric Braun sworn on 13 March 2024.

12. [43]

    In the circumstances, privilege has been expressly waived by the plaintiff with respect to the documents produced by Technical Assessing.

13. [44]

    As to the communication produced by ALS Limited, the description in the Fourth Further Amended Privilege Schedule does not, on its face, point to its dominant purpose being the giving or obtaining legal advice or providing legal services. The evidence is silent as to its purpose. I assume that it contains some instructions about the preparation of Mr Audiappan’s affidavit, which was affirmed on 21 December 2023 and served in the proceedings. Privilege does not attach to an affidavit, as opposed to a witness statement: see Helicopter Aerial Surveys Pty Ltd v Garry Robertson [2015] NSWSC 2104 at [35]-[42] (in the context of the implied undertaking). In my opinion, privilege was waived when the affidavit was served.

14. [45]

    As to the documents produced by AON, the failure by the plaintiff to adduce evidence revealing the pertinent characteristics of every document over which a claim for privilege is made so that the alleged dominant purpose can be ascertained is particularly egregious. I reiterate that on that basis alone, I am unable to accept the plaintiff’s bare assertions of privilege over the documents.

15. [46]

    On the available evidence, I am able to ascertain that AON was both the plaintiff’s broker (in about 2015) and the agent of the insurer (Pioneer) at the time the plaintiff made a claim on its policy of insurance in October 2016. The plaintiff commenced proceedings in 2019 seeking reinstatement pursuant to the terms and conditions of its policy of insurance. Those proceedings were settled in about June 2020. Amongst the AON documents over which privilege is claimed are multiple communications to NRFA who at the time acted on behalf of the then defendant. These documents cannot be privileged as they have been provided to a party with an interest adverse to the plaintiff. Further, many documents and communications over which privilege is claimed apparently contain advice, the substance of which has already been produced and over which no objection has been taken: see the letter from Hamilton Locke to Mills Oakley dated 1 March 2024 at page 21 of the affidavit of Eric Braun sworn on 13 March 2024, and various documents disclosing that advice at pages 34 to 65. Moreover, several communications are between solicitors acting for opposing parties at the time of the insurance dispute and others are communications between AON and Pioneer which were disclosed to their opponents in the insurance dispute. As I have said, there is simply no evidence that reveals the characteristics of the documents over which the claim for privilege is made so that the alleged dominant purpose can be ascertained.

16. [47]

    In my opinion, the plaintiff has not made out its onus of establishing that any of the AON documents attract legal professional privilege.

17. [48]

    As to the documents produced by RT Casey Pty Limited, it has already been noted that I granted leave to the plaintiff to rely upon a report of Dr Casey dated 17 January 2024. On that application, it was read and deployed in the proceedings without restriction, and in my opinion any privilege that may have attached to it has been waived by reason of its deployment. Thus any communications and documents, including any letters of instruction, that have been provided to Dr Casey for use in his report are no longer privileged. Those documents, which (so far as I can tell from the Fourth Further Amended Privilege Schedule) are likely to include the documents set out in 998 to 1238 of that Schedule.

18. [49]

    The defendant has been entirely successful on the subpoenas motion. I therefore order the plaintiff to pay the defendant’s costs of and incidental to the subpoenas motion.

Sevic v Roarty and Case Management

1. [50]

   With respect to the issue of the production of documents by RT Casey Pty Limited (and the documents upon which Dr Casey relied when preparing his January 2024 report), it was suggested that the case of Sevic v Roarty (1998) 44 NSWLR 287 (“Sevic”) is authority for the proposition that privilege (either legal professional, client legal or litigation) attaches to an expert’s report, served in accordance with case management directions, up until it is tendered in evidence by the party relying on it. This Court has followed Sevic on many occasions: see Gillies v Downer EDI Limited [2010] NSWSC 1323; Rickhuss v The Cosmetic Institute Pty Ltd (No 4) [2023] NSWSC 666 at [230]-[231]. In the circumstances in which I have found that Dr Casey’s report has already been tendered, read and deployed in the proceedings, it is unnecessary for me to come to any conclusion about the correctness of Sevic, particularly in light of recent authority of this Court. However, in my opinion, Sevic may not have survived the Civil Procedure Act 2005 (NSW) (“CPA”), and in particular the well-known and much discussed ss 56-58 of the CPA.

2. [51]

   In argument before me, I observed that if the effect of Sevic was that documents informing experts’ reports were not required to be produced until such time as an expert’s report was deployed, there would be little use in having experts meet in joint conference prior to the hearing to produce a joint report setting out the matters agreed and disagreed. Furthermore, it is inevitable that when the plaintiff tenders or deploys the expert’s report, and privilege is lost, the plaintiff will then have to produce all documents informing that report. In those circumstances, at mid-trial, it is inevitable that the defendant will require an adjournment (likely at the cost of the plaintiff). Such a course, which is entirely foreseeable, is wholly inconsistent with the manner in which contemporary civil litigation is conducted. Parties’ resources are not unlimited. Court resources are likewise not infinite. Indeed, the inevitable adjournment would amount to a squandering of precious court time and resources.

3. [52]

   In order to prevent such an occurrence, I will make orders for the preparation of joint reports in two separate disciplines. The experts will meet and prepare a report on matters they agree and disagree. They will give their evidence concurrently. Their joint reports, prepared before trial will necessarily have to rely on assumptions made out on certain documents which on the apparent authority of Sevic are privileged until such time as their primary reports are tendered.

4. [53]

   To avoid a situation where all documents upon which expert (and lay) witnesses relied are not produced until the tender or deployment of their evidence, I propose to order, pursuant to s 61 of the CPA, that all of the evidence in the proceedings be tendered and read well in advance of the hearing, so, to avoid doubt, that any remaining privilege is waived. This will ensure that the preparation of the hearing of matter can proceed economically, efficiently and justly and facilitate a speedy determination of the real issues between the parties. I observe that I have been informed that both the plaintiff’s and the defendant’s evidence is now complete.

5. [54]

   I also propose to make other directions for the orderly conduct of the proceedings leading up to the hearing on 24 August 2026.

Orders

1. [55]

   I make the following orders:-

   1. (1)

      The plaintiff is to produce to the Court all advices and file notes and/or transcripts of the advice given by Mr Feller SC on 14 October 2022, 17 October 2022 and 24 October 2022, by close of business on 10 February 2026. I grant immediate access to the defendant.

   2. (2)

      I make no order as to costs with respect to the NTP motion, to the intent that each party bear its own costs.

   3. (3)

      The documents produced by Technical Assessing which are the subject of the claim for privilege are to be made available to the defendant by close of business on 10 February 2026.

   4. (4)

      The document produced by ALS Limited which is the subject of the claim for privilege is to be made available to the defendant by close of business on 10 February 2026.

   5. (5)

      The documents produced by AON Risk Services Australia which are the subject of the claim for privilege are to be made available to the defendant by close of business on 10 February 2026.

   6. (6)

      All communications and documents, including any letters of instruction, that have been provided to Dr Casey for use in his report dated 17 January 2024 are to be made available to the defendant by close of business on 10 February 2026.

   7. (7)

      I order the plaintiff to pay the defendant’s costs of and incidental to the subpoenas motion.

   8. (8)

      Pursuant to s 61 of the Civil Procedure Act 2005 (NSW), I direct that on 20 March 2026, the parties are to tender and read all affidavits, witness statements and expert reports on which they propose to rely at the hearing on 24 August 2026, subject to objection at the hearing before the trial judge.

   9. (9)

      All letters of instruction, statements of assumptions and documents provided to all experts and witnesses are to be provided to the opposing party by close of business on 27 March 2026.

   10. (10)

       The experts are to give evidence concurrently at the hearing.

   11. (11)

       The parties are to agree on a bundle of documents, a statement of assumptions or alternative statements of assumptions and agreed questions to the experts or alternatively separate questions to the experts, all of which will be sent to the experts, by close of business on 17 April 2026.

   12. (12)

       The experts are to be briefed with the documents noted at paragraph 11 above by close of business on 24 April 2026.

   13. (13)

       The experts are to meet in joint conference and prepare joint reports setting out the matters agreed and disagreed by close of business on 15 May 2026.

   14. (14)

       The experts are to provide a copy of their finalised joint reports to the parties by close of business on 29 May 2026.

   15. (15)

       Pursuant to s 26 of the Civil Procedure Act 2005 (NSW), the parties are ordered to attend a mediation, mediated by a private mediator by 19 June 2026.

   16. (16)

       Final Orders in Schedule 1 of SC CL 7 apply with appropriate modifications.

   17. (17)

       The matter is stood over to 9:15 am on 20 March 2026 before me.

   18. (18)

       Liberty to apply on three days notice.