[2023] NSWSC 1372

G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 11)

Claims for privilege upheld

Catchwords

EVIDENCE – privileges – client legal privilege – communications with in-house lawyer

Cases cited

G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 6)[2022] NSWSC 628
G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 9)[2023] NSWSC 1093

Judgment

[1]
The background to this matter is set out in earlier judgments of the Court, including my judgment of 17 May 2022. [1]
[2]
This is the Court’s 11th interlocutory judgment in the proceedings.
[3]
The case is now set down for hearing for eight weeks commencing on 19 August 2024.
[4]
The proceedings relate to a contract made in March 2017 whereby the defendants/cross-claimants (“MACH”) contracted with the plaintiffs/cross-defendants (“CDJV”) to design, construct and commission a coal handling and processing plant and train load-out facility at Mount Pleasant.
[5]
MACH has challenged claims for client legal privilege made by CDJV.
[6]
In my judgment of 7 September 2023, [2] I said:
[7]
I have now received those submissions.
[8]
The ambit of the parties’ dispute has been reduced. Thus, CDJV set out in its submissions:
[9]
CDJV further submitted:
[10]
On 6 September 2023, I noted that the parties agreed that, in order to determine the question of privilege, I could look at the documents in dispute.
[11]
For that purpose, CDJV caused to be delivered to my Chambers a “Bundle of Privileged Documents for Court Inspection”.
[12]
Having read the evidence adduced by CDJV in relation to those documents, and having looked at the documents, I am satisfied that, save for the documents behind tabs 224, 226, 243 and 245 (which are copies of communications between the parties), the documents are privileged.
[13]
CDJV claimed privilege in relation to the documents behind tabs 224, 226, 243 and 245 because they were attached to privileged documents.
[14]
However, in the communication to my Associate on 8 November 2023, CDJV stated:
[15]
If the parties wish me to make orders to give effect to these reasons, they should confer and agree on the appropriate form of those orders.
[16]
As to the costs of the various disputes which were first before me at the hearing on 6 September 2023, my preliminary view is that the costs of each party should be that parties’ costs in the proceedings.
[17]
If either party contends for a different order for costs, the parties should confer and agree on a timetable for short (no more than five pages) submissions. I will deal with that question on the papers.