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

[2023] NSWSC 1372

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 11) [2023] NSWSC 1372

Hearing dates:

On the papers; submissions received 13, 23, 30 October and 8 November 2023

Date of orders:

13 November 2023

Decision date:

13 November 2023

Jurisdiction:

Equity - Technology and Construction List

Before:

Stevenson J

Decision:

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

Category:

Procedural rulings

Parties:

G&S Engineering Services Pty Ltd (First Plaintiff/First Cross-Defendant)
DRA Pacific Pty Ltd (Second Plaintiff/Second Cross-Defendant)
DRA Group Holdings (Pty) Ltd (Third Cross-Defendant)
DRA Global Limited (Fourth Cross-Defendant)
MACH Energy Australia Pty Ltd (First Defendant/First Cross-Claimant)
MACH Mount Pleasant Operations Pty Ltd (Second Defendant/Second Cross-Claimant)
J.C.D. Australia Pty Ltd (Third Defendant/Third Cross-Claimant)

Representation:

Counsel:
T J Porter with D Johnson (Plaintiffs/Cross-Defendants)
M Doyle (Defendants/Cross-Claimants)

Solicitors:
HFW Australia (Plaintiffs/Cross-Defendants)
Corrs Chambers Westgarth (Defendants/Cross-Claimants)

File Number(s):

2019/71358

JUDGMENT

1. The background to this matter is set out in earlier judgments of the Court, including my judgment of 17 May 2022. ^[1]

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

2. This is the Court’s 11^th 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:

“483 of those documents were what the parties called the ‘Janson Documents’ being documents received or sent by a lawyer, Ms Ami Janson. During argument, CDJV clarified the basis on which privilege was claimed in relation to those documents, and I have made directions for an exchange of submissions in relation to that matter which will, hopefully, resolve or at least significantly narrow the dispute in relation to these documents.”^[3]

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

3. At [7].

7. I have now received those submissions.

8. The ambit of the parties’ dispute has been reduced. Thus, CDJV set out in its submissions:

“Of the 484 ‘Janson Documents’, CDJV identified that 182 were captured by the Court’s decision on waiver in relation to the Consequential Loss Advice documents. They were privileged documents in respect of which privilege was impliedly waived. CDJV chose not to press claims of privilege over 115 further documents in the interest of avoiding further disputation and costs. MACH chose not to press its challenge in relation to 171 documents, such that the total in dispute has been reduced to 15 documents.” (References omitted.)

9. CDJV further submitted:

“The remaining Janson Documents involve email communications between CDJV personnel and Ms Ami Janson (and attachments to those emails) in the period from 5 September 2017 to 18 January 2019. CDJV claims legal professional privilege over them on the basis that the dominant purpose of each communication is a request for, or the provision of, legal advice by Ms Janson to personnel of CDJV.

Ms Janson was admitted as a lawyer in Queensland on 27 April 2010.

During the period relevant to the Janson Documents, Ms Janson held a role which included the provision of legal advice. She was an admitted lawyer and continuously maintained a practicing certificate at all relevant times. It can be seen from the Janson Documents that remain that she provided legal advice, usually in relation to contracts. This is consistent with her job title of ‘Contracts and Commercial Advisor’.” (References omitted.)

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:

“As a matter of practicality, CDJV has no issue disclosing copies of the letters at tabs 224, 226, 243 and 245.”

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.

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Endnotes

Amendments

15 November 2023 - Amendment to Representation field on coversheet