Hunter New England Local Health District v Munters Pty Limited

By an amended notice of motion filed on 15 June 2017 Munters Pty Limited (“the defendant”) seeks orders against Hunter New England Local Health District (“the plaintiff”) in the following terms:

I was informed at the hearing that paragraph 4 of the amended notice of motion was no longer pressed. Accordingly:

I was also informed at the hearing that of the 22 categories of documents set out in annexure “A” to the amended motion, nine were no longer in dispute. In respect of those categories of documents which remain, annexure “A” is in the following terms:

A Joint Court Book which was tendered at the hearing of the motion contains the entirety of the evidentiary material relied upon by both parties.

The plaintiff is a Local Health District, and a body corporate constituted by s 17 and Schedule 1 of the Health Services Act 1997 (NSW). At all material times it controlled the John Hunter Hospital, a public hospital located at New Lambton Heights, near Newcastle (“the hospital”). The defendant operated a business in moisture control, remediation and restoration of property damage, and document drying and restoration.

In 2008, the plaintiff used part of premises at 54 Pennant Street, Cardiff (“Old Cardiff”) as a storage facility in which it kept medical records of patients who had been treated at the hospital. Approximately 300,000 records were stored at Old Cardiff, many of which were old and had not been required for some years. Other, more current, records were stored on site at the hospital, within locations known as Area A and Area B. Those locations were situated within what was known as the hospital’s Clinical Information Department (“CID”). As one might expect, records were brought from Old Cardiff to the hospital from time to time for the purpose of treating patients, and were then returned to Old Cardiff for storage when they were no longer needed.

Approximately 10% of the Old Cardiff housed the document storage area. The remaining 90% housed the hospital’s laundry facility. There is some evidence that records were stored at Old Cardiff with an emphasis on their security, as opposed to an emphasis on keeping them dry and in good order.

On or about 20 January 2008, a faulty fire sprinkler burst at the Old Cardiff premises, causing a number of the records which were stored there to become wet. The plaintiff’s case is that on the following day it entered into a contract with the defendant to advise upon, and remediate, those records which had been affected by the water.

The defendant was paid a little over $122,000.00 for the work which it subsequently carried out. That work included taking away approximately 20,000 of the 300,000 records which were stored at Old Cardiff, treating them, and then returning them over a period of approximately two months. All of the records treated by the defendant were returned to the plaintiff by about March 2008.

The plaintiff alleges that in about April 2008, it commenced to receive complaints from people working in the ClD of various physical symptoms including itchiness, rashes and shortness of breath. Those complaints continued sporadically over the ensuing months. There is said to be evidence which establishes that at least one person experienced the symptoms whilst working at the hospital, but not whilst at Old Cardiff.

The plaintiff commenced various investigations in an effort to determine the cause of the reported symptoms. Those investigations ranged from looking for paper mites in the patient records, to investigating whether there had been sufficient cleaning of the Old Cardiff premises. The Health Services Union then foreshadowed industrial action on behalf of its members who worked at the hospital, following which the Industrial Relations Commission ordered the plaintiff to develop a remediation plan. The plaintiff sought the advice of Dr Heike Neumeister-Kemp, a mould expert, who expressed the opinion that it was mould that was causing the reported symptoms. Other experts, including Dr Sandra McBurnie, an Industrial Physician, expressed doubt as to whether that was the case. The plaintiff formed the view that mould was the cause of the physical symptoms which had been reported, and determined that the electronic scanning of all of the records was the most appropriate way to deal with the issue.

Between about May and June 2008 Old Cardiff was decommissioned as a storage facility. The patient records which had been stored there were transferred to another facility (“New Cardiff”) and from that point onwards, no records passed between Old Cardiff and the hospital.

The plaintiff’s case relies on the results of scientific testing, which it will assert establishes that the cause of the reported physical symptoms was mould. It alleges that the defendant breached its contractual and common law duties of care, as a consequence of which there was a growth of mould on the medical records stored at Old Cardiff, which spread to records which were stored at the hospital, as a consequence of which a number of those working at the hospital suffered physical symptoms. The plaintiff claims more than $11,000,000.00 in damages.

It is common ground between the parties that the defendant’s retainer was oral. However, there are significant issues between the parties regarding (inter alia) the scope of that retainer. It is the plaintiff’s case that the defendant was required to advise in respect of remedying any damage which had been caused, as well as in respect of steps to be taken to prevent mould growth. The defendant asserts that its retainer was limited to being asked to dry the particular records that it had been given.

There are related issues between the parties as to whether the defendant breached its common law or contractual duties to take care by (inter alia) failing to:

There is also an issue as to whether any act or omission on the part of the defendant was causative of any loss suffered by the plaintiff. In particular, there is an issue as to whether anything done (or not done) by the defendant was the cause of a proliferation of mould. Contributory negligence is also pleaded. There may also be an issue as to whether the State of New South Wales, who employed the staff at the hospital, is a concurrent tortfeasor.

It should be noted that discovery has already been given by the plaintiff. The amended motion before me seeks an order for further discovery.

Rule 21.2 of the Uniform Civil Procedure Rules 2005 (NSW) (“the Rules”) is in the following terms:

The parties were generally in agreement as to the principles which apply to an order for discovery. In the context of the present case, those principles may be summarised as follows:

Against a background of these general principles, I turn to consider each of the categories which remain in dispute.

Counsel for the defendant submitted that the documents in category 1 were necessarily relevant to the terms of the defendant’s retainer, which counsel described as a “pivotal issue” in the proceedings. Counsel also pointed out that the documents sought in category 1 were limited in time.

It was further submitted that the documents in this category were reasonably required for the fair disposition of the proceedings, particularly having regard to what he described as the defendant’s “lack of corporate memory”. In that regard, counsel explained that in 2010 the plaintiff wrote to the defendant indicating that proceedings may be commenced, and putting the defendant on notice that any documents in relation to the matter needed to be retained. Counsel for the defendant appeared to concede that this was not done (or at least was not done to any proper extent), following which the defendant closed its restoration business. Counsel accepted that the plaintiff’s reliance on these factors was of some force. However, he submitted that these matters were outweighed by the fact that the documents in category 1 were relevant to a fundamental issue in the proceedings.

Counsel for the plaintiff submitted that the words “and the Defendant’s provision of those services” as they appear in category 1 meant that the plaintiff would be required to examine its records for classes of documents relating to the result of the defendant’s alleged acts and/or omissions. Counsel further submitted that category 1(c) was vague.

Counsel further submitted that the task of giving discovery of the documents in category 1 would place an unacceptable burden upon the plaintiff. In this regard, he relied upon an affidavit of Alexander Trevena of 18 August 2017 which sets out the work that would be required to comply with any order made.

Counsel further submitted that there was no reason why this category could not have been included in the previous application for discovery. Finally, he submitted that the plaintiff was, in effect, being asked to shoulder the burden of the defendant not having kept its records when it had been put on notice of the necessity to do so.

As I have already outlined, the scope of the defendant’s retainer is a principal issue in these proceedings. The documents in category 1 go directly to that issue. The importance of the issue is further heightened by the fact that the defendant’s retainer was oral. That necessarily renders documentation which goes to the issue of the scope of the retainer even more important.

I am unable to accept the submission advanced on behalf of the plaintiff that, as drafted, an order for discovery of the documents in category 1 would require the plaintiff to re-examine documents relating to the results of its alleged acts and/or omissions. Nothing in the terms in which category 1 is drafted suggests that this is the case. To the extent that category 1 may be directed to discovery of documents going to the plaintiff’s post contractual conduct, such conduct may well be relevant to the scope of the retainer.

I have taken into account the work that will be required to give discovery of category 1. I also accept that discovery could have been sought of the documents in this category earlier in the proceedings, and that the defendant did not retain its records when put on notice of a potential claim. Those are all relevant factors in the balancing exercise. However in my view, they are outweighed by the importance of the issues in the proceedings concerning (inter alia) the scope of the defendant’s retainer, as well as considerations of overall fairness in the disposition of the proceedings. Accordingly, the plaintiff should be ordered to give discovery of the documents in category 1.

Counsel for the defendant submitted that these documents went to the issue of causation, as well as to the issue of what observations may have been made of mould at different times. He also submitted that they were relevant to the question of what records may have been made as to the location of any mould. He submitted that these matters were necessarily relevant to the question of whether the mould originated from the Old Cardiff premises, or from somewhere else. To the extent that the period in category 2 extended to 2014, counsel submitted that documents produced on subpoena suggested that there were ongoing symptoms reported up to that time, which was also relevant to the issue of causation.

Counsel for the plaintiff again relied on what was said to be onerous nature of giving discovery of the documents in category 2. He further submitted that because of the fact that the allegations against the defendant arise from events which occurred in 2008, there was an insufficient connection between those events and alleged events in 2014.

Counsel further submitted that discovery of these documents could have been sought at a far earlier time.

As I have noted, causation is an issue in these proceedings. The circumstances in which documents were transferred between Old Cardiff and the hospital are inextricably linked to that issue.

I accept that there is material produced on subpoena which is suggestive of ongoing symptoms being reported up to and including 2014. I also accept that in the event that discovery is ordered of the documents in category 2, the plaintiff will be required to examine a large number of documents, although the affidavits of Mr Trevena and Mr Davis which were relied upon in this regard would tend to suggest that the documents have already been identified, and are largely arranged in a systematic fashion. Bearing in mind the principles to which I have previously referred, and the importance of the causation issue, the plaintiff should be ordered to give discovery of the documents in category 2.

Counsel for the defendant submitted that categories 4 and 6 essentially went to different aspects of the same issue, namely the conditions under which the documents were stored. He explained that category 4 dealt with environmental conditions, whilst category 6 dealt with the effects (including human interaction and intervention) on those conditions. Counsel submitted that both categories were therefore relevant to the issue of the source of the mould, and the conditions in which the documents were kept. It was submitted that such matters were, in turn, relevant to the issues of causation and contributory negligence.

The submissions made by counsel for the plaintiff did not suggest that the documents in these categories were irrelevant or unimportant. Counsel’s submissions concentrated on what was said to be onerous nature of compliance with an order for discovery.

I again accept, having regard to the affidavit of Mr Trevena, that there will be significant work involved in complying with any order in respect of either of these categories. However, in my view that is outweighed by the fact that these categories obviously go to significant issues in the proceedings. Accordingly, the plaintiff should be ordered to give discovery of the documents in categories 4 and 6.

Counsel for the defendant submitted that the documents in category 12 went to issues of causation and contributory negligence. He submitted that any suggestion that the documents were so voluminous as to render compliance with an order for discovery oppressive was not apparent from the evidence.

Counsel for the defendant emphasised that what was being sought were documents passing between the plaintiff and its insurer, or that insurer’s agent(s) and that in those circumstances, the category was necessary confined. To the extent that an issue was taken to the date range specified in the category, counsel pointed out that such a range was referrable, not to the dates of events set out in documents, but to the dates of the documents themselves.

Counsel for the plaintiff again submitted that the complexity associated with complying with an order for discovery of documents in this category was significant, and covered a wide period. He also pointed out that subpoenas had been issued to the relevant insurer and loss adjuster.

However more fundamentally, counsel for the plaintiff submitted that the defendant’s rationale behind seeking discovery of the documents in category 12 was misconceived, and based upon an incorrect assertion as to who made the decision to scan the records, and when.

To begin with, the date range of documents sought in this category is relatively limited. Moreover, given the terms in which the category is drafted, it is apparent that the date range relates to the dates of documents, not the dates of events. So much was confirmed by counsel for the defendant in the course of oral submissions. Further, the documents sought, namely documents passing between the plaintiff and its insurer and/or loss adjuster, are narrowly confined. That tends against a suggestion that compliance with an order that they be discovered would be overly onerous.

The fact that subpoenas have been issued to the relevant insurer and loss adjuster does not, of itself, militate against an order for discovery being made. It cannot be assumed that the documents held by the plaintiff duplicate those held, and produced under subpoena by, some related organisation: Re Colorado Products Pty Ltd (in prov liq) [2013] NSWSC 611 at [86].

Finally, even if it is accepted that the defendant misapprehends matters surrounding the decision to scan the documents, that does not lead to the conclusion that the documents in this category do not go to a fact in issue. Clearly, they go to issues of causation and contributory negligence. The submissions of counsel for the plaintiff did not appear to suggest otherwise.

Accordingly, the plaintiff should be ordered to give discovery of the documents in category 12.

Counsel for the defendant submitted that these documents again went to the issues of causation, and the symptoms said to have been suffered by the hospital employees. Counsel submitted that the scope of the documents in this category was narrow and that properly understood, the task involved in complying with an order for their discovery was not onerous.

The submissions of counsel for the plaintiff centred upon the date range of seven years, in circumstances where the hospital obviously employed many members of staff. Against this background, counsel specifically relied upon the affidavit of Mr Trevena, as well as that of Ms Robertson, in support of a conclusion that compliance with an order for discovery of the documents in this category would be overly onerous. The overly onerous nature of that task was said to be reflected in (inter alia) the fact that it would require the plaintiff to make enquiries of former staff members, and physically review documents.

Given the terms in which these categories are drafted, it is not apparent to me why an order for discovery would require the plaintiff to interview staff members. What is sought are records of complaints. To that extent at least, compliance with an order would not appear to be as onerous as was suggested.

The submissions advanced by counsel for the plaintiff did not suggest that the documents in this category were irrelevant. Clearly, they go to principal issues in the proceedings. I accept that these matters could have been raised by the defendant before now. However in my view, the just disposition of the proceedings outweighs that factor, as well as the time (such as it might be) which might be involved in complying with an order for discovery.

Accordingly, the plaintiff should be ordered to give discovery of the documents in categories 13 and 14.

Counsel for the defendant submitted that what was sought in this category were, in effect, results of investigations. Counsel emphasised that discovery was not being sought of private medical records of individuals.

Counsel for the plaintiff repeated, in part, the submissions made in respect of categories 13 and 14, and again relied upon the affidavit of Mr Trevena as to the work which would be required in complying with an order for discovery of documents in this category. In particular, counsel submitted that the onerous nature of such compliance was reflected in the fact that it would require the plaintiff to undertake extensive enquiries with staff members’ medical and allied professionals. Counsel also relied upon the fact that discovery of these documents could have been sought at a much earlier time.

Once again, it was not suggested on behalf of the plaintiff that the documents in this category were irrelevant or unimportant. Moreover, this category essentially seeks the results of investigations. Understood in that way, I am not satisfied that compliance with an order for discovery of these documents would be as onerous as the submissions of counsel for the plaintiff suggested. Whilst I accept that the order could have been sought at an earlier stage, the balance lies in favour of the order sought being granted.

Accordingly, the plaintiff should be ordered to give discovery of the documents in category 15.

Counsel for the defendant pointed out that the entities named in these categories had varying roles in the management of the complaints of symptoms made by those employed at the hospital. It was submitted that the documents sought were relevant to the issue of causation.

Counsel for the plaintiff relied on the fact that subpoenas had already been issued to at least some of the named entities. He also relied upon the affidavit of Mr Trevena in support of the submission that compliance with an order for discovery of these documents would be overly onerous and would require (inter alia) a review of “all documentation already received from Hunter Health”.

I have already noted (at [43] above) that It cannot be assumed that the documents held by the plaintiff duplicate those held, and produced under subpoena by, some other relevant organisation. Moreover, the proposition that an order that documents in this category be discovered would require the plaintiff to review “all” documentation it has received must be viewed in the context of the named entities in the category. Approached in that way, and taking full account of Mr Trevena’s affidavit, it appears to me that the proposition that compliance with an order for discovery would be onerous overstates the position. Clearly, the documents in this category are relevant to the issue of causation.

Accordingly, the plaintiff should be ordered to give discovery of the documents in category 16.

Counsel for the defendant submitted that, as with category 16, the documents in category 17 went to the issue of causation. In large measure, counsel relied upon the submissions made in respect of category 16.

Counsel for the plaintiff submitted that in the absence of a date range, the provisions of the rules had effectively been breached and that discretionary considerations warranted refusal of an order for discovery of the documents in this category.

Nothing in the rules requires a date range to be applied to a class of documents of which discovery is sought. As counsel for the defendant pointed out, r 21.2(2) simply provides that a class of documents must not be specified “in more general terms than the court considers to be justified in all of the circumstances”.

In my view, the scope of the documents which are sought in category 17 is appropriately and clearly defined by the description of the documents themselves, as well as the issue to which they are obviously relevant.

Accordingly, the plaintiff should be ordered to give discovery of the documents in category 17.

In light of the indication given by counsel for the plaintiff that the only dispute in this category was in respect of paragraph (f), counsel for the defendant submitted that there was evidence that Ms Morgan had a managerial role in the CID and, having been seconded to work elsewhere, had been brought back to the CID “because of this problem”. It was submitted that documents relating to the decision to have her return to the CID were “expected (to) bear some light on what was considered to be the problem”.

Counsel for the plaintiff submitted that leaving aside the “multitude of documents” involved, matters surrounding Ms Morgan’s departure and return were not relevant to any fact in issue.

I am unable to ascertain the relevance of any document in 18(f). Documents relating to a decision to have Ms Morgan return to work in the CID do not, in my view, have any bearing upon any fact in issue in the proceedings. The terms in which counsel for the defendant put his position in support of an order for discovery of these documents tended to highlight what appeared to me to be the somewhat nebulous nature of the asserted relevance of such documents.

Accordingly, the plaintiff should not be ordered to give discovery of the documents in category 18(f).

Counsel for the defendant submitted that the documents in this category went to the issues of causation and contributory negligence. They appear to arise from an expert opinion sought by the defendant Ian Mitchellhill, a mechanical engineer, in relation to environmental conditions inside both the hospital and the storage facilities, including Old Cardiff.

The principal objection taken by counsel for the plaintiff to this category was that it could have been included in the original categories for discovery.

The simple answer to the principal submission advanced by counsel for the plaintiff is that at the time of formulating the original categories of documents, the defendant did not have Mr Mitchellhill’s report.

Accordingly, the plaintiff should be ordered to give discovery of the documents in category 20.

Counsel for the defendant submitted that the documents in this category went to quantum and, more specifically, to the costs saved by the documents being scanned.

Counsel for the plaintiff submitted that the breadth of the documents of which discovery was sought was “enormous” and again relied upon the affidavit of Mr Trevena.

In my view, the “enormity” of the task which was relied upon by the plaintiff was somewhat overstated. What is sought are documents relating to the cost of storage. That is clearly relevant to quantum.

Accordingly, the plaintiff should be ordered to give discovery of the documents in category 22.

Paragraphs (3) and (5) of the amended notice of motion seek access to documents in the possession of the plaintiff over which claims for privilege have been made. It is appropriate to commence consideration of this aspect of the matter by setting out the relevant statutory provisions.

Section 118 of the Evidence Act 1995 (NSW) (“the Act”) is in the following terms:

Section 119 of the Act is in the following terms:

Further, r 21.3 of the rules provides (inter alia) as follows:

The principles which govern a claim for privilege under s 118 and/or s 119 of the Act include the following:

Documents 9 and 10 in paragraph (3) of the amended notice of motion are no longer the subject of any dispute). The evidence placed before this Court in support of the claim for privilege over the remaining documents consisted of:

Annexures AE and AF are correspondence between the parties in which they state their respective positions in relation to the privilege claim. They throw little light on the issues I am required to determine.

Annexure AD is the list of documents prepared by the plaintiff’s solicitor which includes those documents set out in paragraph 3 of the amended notice of motion. In respect of documents 3 to 8 and 11 to 15, the list does nothing more than assert client legal privilege. As emphasised by Tobias JA in Bailey, r 21.3(2)(d) is there for a purpose, namely to provide sufficient particulars to a party seeking to inspect documents (in this case, the defendant) as to the basis of any claim for privilege, so that such a claim can, if thought appropriate, be contested. Merely asserting the privilege, as the plaintiff has done in this case, is not sufficient to comply with the rule. By reference to the list of documents, both the defendant and the Court are largely, if not completely, uninformed as to the basis of the claim.

Further, in the case of documents 1 and 2, the list states:

The inherent ambiguity in that statement will be obvious. I am left to assume that the plaintiff’s solicitor was intending to assert that the fact that those documents refer to legal advice was sufficient for the purposes of r 21.3(2)(d), and thus provided a sufficient basis upon which to make a claim for privilege. A number of observations need to be made about those matters. To begin with, an assertion of privilege is, as I have already pointed out, insufficient for the purpose of r 21.3(2)(d). Such a bare assertion provides no proper particulars to the defendant, or to the Court, as to the basis of the claim which is made. In particular, and in circumstances where both s 118 and 119 of the Act apply a dominant purpose test, the bare assertion in the present case says absolutely nothing about the purpose for which either document was brought into existence. Further, for the reasons discussed at [89] and following below, the fact that a document refers to legal advice may well tend to defeat a claim for privilege, rather than support it.

Moreover, and quite apart from the deficiencies in the list, the affidavit of Mr Davis falls short, and indeed substantially short, of containing the focused and specific evidence of which the authorities speak as being necessary to ground a claim for privilege.

Paragraph 22 of the affidavit deals with the claim made in respect of the documents in paragraph 3 of the amended motion. In some cases, the affidavit does nothing more than describe a particular document. In other cases it describes some of the information contained in a particular document. In no case does the affidavit address, in any way at all, the issue of the purpose for which any of the documents were brought into existence, in circumstances where that is pivotal to the resolution of the claim. It could hardly be said that this constitutes evidence which is either focused or specific.

Moreover, in respect of each of documents 1 and 2, and consistent with what appears in the list of documents, Mr Davis states that each document “refers to the results of a legal opinion obtained by our client”. Once again, it could hardly be said that such evidence falls within the definition of “focused and specific evidence” which was said by the Court in Barnes to be necessary in order to ground a claim for privilege. As Black CJ and Emmett J pointed out in Kennedy v Wallace (at [13]), it is not sufficient for a party to merely assert a claim for privilege, nor will an affidavit asserting the purpose for which a document was brought into existence, followed by a statement about the category of legal professional privilege, necessarily be sufficient. I reiterate that the evidence in the present case does not make a single reference to the issue of the purpose for which any of the documents in paragraph 3 were brought into existence.

Further, the assertion that documents 1 and 2 are privileged because they each refer to the result of a legal opinion may tend against the conclusion for which the plaintiff contends, and in favour of a conclusion that any privilege which might otherwise have attached to the documents has been lost. In that regard, s 122 of the Act is in the following terms:

Under s 122(3), the knowing and voluntary disclosure of the substance of privileged information will result in loss of the privilege. Whether particular disclosure amounts to disclosure of the substance of a privileged communication, thus resulting in the loss of the privilege, will necessarily involve a question of degree. However in Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101; [2004] FCAFC 237 Tamberlin J observed (at [5]-[6]) that once the conclusion of legal advice is stated, along with the effect of it, there is a waiver of privilege. A similar approach was taken by Rolfe J in Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12 at 19:

It follows that in my view, parts of the affidavit of Mr Davis which are relied upon to substantiate the claim for privilege in respect of documents 1 and 2 tend to support the opposite conclusion.

For all of those reasons, the evidence adduced in support of the claim for privilege in respect of the documents in Order 3 of the amended notice of motion is grossly deficient, and fundamentally at odds with what the authorities have made clear is required.

It remains open to me to exercise the discretion conferred by s 133 of the Act and inspect the documents. Notwithstanding the numerous shortcomings in the evidence adduced by the plaintiff, I have done so. My conclusions are as follows.

Documents 1 and 2 form an email chain from Tony Brown, the team leader at TMS General Claims Management, to various named persons. The email chain does make reference to a discussion between Mr Brown and a loss adjuster, Mr Mills. The email refers to the result of a legal opinion obtained by the plaintiff. For the reasons I have outlined, that part of the document is not privileged. However, the final paragraph of the document sustains an inference that it was brought into existence for the dominant purpose of obtaining legal advice. I therefore uphold the claim for privilege in respect of the balance of documents 1 and 2.

Document 3 is an email from Greg Jackson who is the manager (information technology and communications) for the plaintiff. It is clear from the contents of that correspondence that it was prepared for the dominant purpose of obtaining legal advice, or alternatively for the dominant purpose of the plaintiff being provided with professional legal services in respect of anticipated proceedings. In that latter respect, the document makes specific reference to potential proceedings against the defendant. I therefore uphold the claim for privilege in respect of document 3.

Document 4 is further email correspondence between Mr Jackson and Mr Mills. Again, it refers to potential proceedings against the defendant. Whilst it also makes reference to previous legal advice, it does not disclose the substance of that advice so as to bring about a loss of the privilege. I am satisfied that the document was prepared for the dominant purpose of obtaining legal advice. I therefore uphold the claim for privilege in respect of document 4.

Document 5 is an email from Mr Jackson to a Mr Allen (who I infer is a representative of the plaintiff) and Mr Mills. It requests that Mr Allen undertake certain enquiries in the context of possible proceedings being brought against the defendant. I am satisfied that the claim for privilege in respect of this document is made out.

Document 6 is a letter from a Mr Hart, a claims officer at TMF, to the plaintiff’s solicitor seeking advice in relation to proceedings against the defendant. It plainly falls within s 118 of the Act and I uphold the claim for privilege in relation to it.

Document 7 is an email chain created in April 2009 seeking the clarification of “some issues” in relation to reports provided by Dr Heike Neumeister-Kemp who has been retained by the plaintiff as an expert. The email chain makes reference to reports of 3 December 2008 and 5 February 2009. The reports annexed to the affidavit of Dr Neumeister-Kemp of 16 April 2016 which is before me are dated 29 October 2008 and 2 December 2008. Document 7 therefore postdates those two reports. There is no indication that a further report was served following the clarification which was sought in the email chain. There may be an implied waiver of privilege in respect of a letter of instruction to an expert in circumstances where that expert says that the letter of instruction was a source of his knowledge. In other words, for principles of waiver to apply in such a circumstance there must be some indication that the documents were used in the preparation of the evidentiary document in a way that could be said to influence the content of the document: Dingwall v Commonwealth (1992) 39 FCR 521, cited in Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89 at [46] per Nicholson J; see also Tirango Nominees Pty Ltd v Dairy Vale Foods Pty Ltd (1998) 156 ALR 364 at 367 per Mansfield J. There is no such evidence in the present case, nor is there any evidence that a third report was served from Dr Neumeister-Kemp incorporating any matters of clarification. In these circumstances I am of the view that there has been no loss of privilege and the claim should be upheld.

Document 8 is a statement made by Mr Jackson to an investigator on 21 August 2009. It is evident, particularly from paragraph (2), that the document is a confidential communication which was brought into existence, either for the dominant purpose of a lawyer providing the plaintiff with legal advice, or alternatively for the dominant purpose of the plaintiff being provided with professional legal services. In either case, the document is privileged.

Document 11 comprises a series of reports from Corporate Protection Services International addressed to the plaintiff’s solicitor in response to a request to “investigate the potential for recovery against Munters Pty Limited”. The reports are clearly confidential documents brought into existence for the dominant purpose of a lawyer providing the plaintiff with legal advice. I uphold the claim for privilege in relation to them.

Document 12 is similar to document 8, albeit involving another person. For the reasons expressed in respect of document 8, I uphold the claim for privilege in respect of document 12.

Document 13 is a note of a conference with Mr Jackson on 10 January 2014. It is apparent that the note was prepared for the dominant purpose of the plaintiff being provided with professional legal services in relation to what were obviously anticipated proceedings against the defendant. I am satisfied that the notes are privileged under s 119 of the Act.

Document 14 is an email chain between Mr Jackson and the plaintiff’s solicitor in June 2014 which the plaintiff’s solicitor seeks instructions about a series of matters in the context of the current proceedings. Plainly, the documents are privileged under s 119 of the Act.

Document 15 is an email from Mr Jackson to Mr Davis in December 2014. It is clear that it is in the nature of a response to a request by Mr Davis for instructions about particular matters, such request having been made in the context of the present proceedings. I am satisfied that the documents are privileged under s 119 of the Act.

Of the documents set out in paragraph 5(a), only documents 1, 12, 13 and 14 are in issue. They are documents produced on subpoena by Cunningham Lindsay, Loss Assessors. They documents appear in a list of documents which is annexure “O” to the affidavit of Ms Waring-Lambert of 17 March 2017. Once again, that list does not comply with r 21.3(2)(d).

Annexure S to the same affidavit is a letter from Mr Davis to those acting for the defendant setting out the basis of various claims for privilege. That letter states (inter alia) that:

Two matters should be observed about Annexure S. Firstly, the fact that a document is created “in anticipation of legal proceedings” says nothing about the dominant purpose for which it was created. Secondly the fact that a document is created in such anticipation does not lead to the conclusion that it was made for the dominant purpose referred to in ss 118 and 119 of the Act. Nothing in the correspondence says anything at all about the dominant purpose for which any of the documents were created.

Finally, reliance is placed upon paragraphs 24 to 26 of the affidavit of Mr Davis. Those paragraphs do nothing more than:

The evidence thus suffers from precisely the same shortcomings as the evidence relied upon in respect of the documents in order 3. Once again however, I have exercised my discretion in favour of examining the documents pursuant to s 133 of the Act.

Document 1 is the same document as document 8 in [100] above. It follows that the same conclusion should be reached and the claim for privilege upheld.

Documents 12 and 13 constitute an email chain created for the stated purpose of providing “information requested by the legal team” in April 2013. In light of the date of the correspondence, I am prepared to infer that it was brought into existence for the dominant purpose of the plaintiff being provided with professional legal services in respect of anticipated proceedings against the defendant pursuant to s 119. I therefore uphold the claim for privilege.

Document 14 is an email from Mr Jackson to a number of persons in March 2013. Like documents 12 and 13, it was created for the stated purpose of “providing information requested by the legal team”. For the reasons expressed in respect of documents 12 and 13 I uphold the claim for privilege in respect of this document.

Of the documents set out in paragraph 5(b), documents (i), (ii), (iii) and (iv) remain in issue. They are documents produced on subpoena by Cunningham Lindsay, Loss Assessors.

The plaintiff relied upon annexure “U” to the affidavit of Ms Waring-Lambert of 17 March 2017 in support of this claim. That is a letter from Mr Davis to those acting for the defendant of 23 October 2014. It does nothing more than state that a claim is made. It gives no indication at all of the basis of the claim.

The plaintiff also relies upon paragraphs 27 to 30 of the affidavit of Mr Davis. In those paragraphs Mr Davis asserts that documents (i), (ii) and (iii) “refer to legal advice received by our client”. Leaving aside the fact that such an assertion says nothing about the purpose for which the documents were created, it prima facie tends against the claim which is made for the reasons I have previously expressed. However, notwithstanding the deficiencies in the evidence relied upon by the plaintiff to support the claim, I have again exercised my discretion to examine the documents.

Documents (i) and (ii) are in the nature of reports provided to GIO General Limited, NSW Treasury Managed Funds. Document (i) does little more than set out the factual circumstances of the flooding of the Old Cardiff premises. There is nothing whatsoever which suggests that the document was created for the dominant purpose referred to in either s 118 or s 119 of the Act. To the extent that it refers to legal advice received, the document states the nature of that advice and thus discloses its substance. I therefore reject the claim for privilege in respect of document (i).

Document (ii) is even more remote. I infer that its dominant purpose was not a purpose referred to in s 118 or 119, but a purpose relating to authorising a progress payment to the defendant for the work it carried out. Once again, to the extent that the document refers to legal advice it discloses the substance of such advice. For these reasons the claim for privilege in respect of document (ii) is rejected.

In respect of document (iv), Mr Davis asserts that it is part of an email chain “that asks questions for purposes of referral to lawyers for possible recovery”. Whilst that at least makes some reference to the purpose for which the document was brought into existence, it is neither focused nor specific. An examination of the document makes it apparent that it is a communication from Mr Mills to the plaintiff’s insurer dated 5 December 2008 in which the possibility of proceedings against the defendant is discussed, in the context of retaining legal representation. I am satisfied that the document is a confidential one, created for the dominant purpose referred to in s 119. I therefore uphold the claim for privilege in relation to it.

The document in paragraph 5(c) was produced on subpoena by Network Cleaning and Restoration Services and is described as a “written commentary” of a Mr Vince Neil. The plaintiff again relied upon annexure “S” to the affidavit of Ms Waring-Lambert in which Mr Davis asserted that:

The plaintiff also relies upon paragraphs 31 to 33 of the affidavit of Mr Davis which set out the circumstances of Mr Neil’s retention.

I have had regard to the matters in [120] above, and I have inspected the document. I am satisfied that it is a confidential document created for the dominant purpose set out in s 119(a) of the Act. I therefore uphold the claim for privilege in respect of the document.

There are two documents in paragraph 5(d) of the amended notice of motion. They are each in the nature of email chains between a number of persons including Heike Neumeister-Kemp. The claim for privilege in relation to them is supported by an affidavit of Mr Davis of 18 May 2017. That affidavit annexes a separate list of documents. Under the heading “circumstances under which privilege is claimed” the document simply states (in each case) “legal professional privilege”. Yet again that does not comply with r 21.3(2)(d).

The first of the documents is the same as document 7 referred to in paragraph [99] above. The second document is a duplicate of the first. For the reasons I have stated, I reach the same conclusion as in [99] above in respect of these documents. The claim for privilege should be upheld.

As I discussed with the parties on the hearing of the amended notice of motion, it will be necessary for these proceedings to be closely case managed form this point onwards in light of their history. Accordingly, I make the following orders:

The proceedings are listed for further directions before me at 9.15 am on Friday 8 June 2018.

The parties are to prepare short minutes of orders to be made on the next occasion incorporating orders:

The costs of the amended notice of motion are reserved.