FEDERAL COURT OF AUSTRALIA

Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 4)

[2010] FCA 863

THE COURT ORDERS THAT:

1.                  The parties bring in short minutes of orders to give effect to these reasons for judgment.

2.                  Save in respect of the order as to costs already made in respect of the discovery applications, costs in respect of those applications be reserved for further consideration on 19 August 2010.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     A number of differences between the parties emerged in relation to discovery. So as to resolve these I directed the filing, by a nominated date, of all interlocutory applications by the parties with respect to discovery. These reasons for judgment address the issues raised by the various applications which came consequentially to be filed by one party or another.

2                     The practice of discovery of documents by parties to litigation has its origins in the practice of the English Court of Chancery. The granting of equitable relief being a matter of discretion, discovery (including the answering of interrogatories) was intended to ensure that the court had before it all evidence relevant to the exercise of that discretion. Not until the Common Law Procedure Act 1854 (UK) were the common law courts of England afforded a power to order discovery and then only if satisfied by affidavit by an applicant for discovery that an opponent had a discoverable document in his possession: Cairns B, The Law of Discovery in Australia (The Law Book Company Limited,1984), p 11. To be discoverable a document had to be necessary for pleading and admissible in evidence (Ibid).

3                     With the enactment of the Supreme Court of Judicature Act 1873 (UK) (the Judicature Act) and its creation for England of a single court of law and equity in lieu of the former separate courts, chancery practice with respect to discovery came to be imported. Analogous legislation and with it analogous practice was soon introduced in most of the Australian colonies with New South Wales being a notable exception. Not until 1970 did the (by then) State legislature provide for the fusion of law and equity jurisdictions.

4                     The Federal Court has been a court of law and equity from its inception. Originally, its practice in relation to discovery closely resembled the position which prevailed in England following the enactment of the Judicature Act. Under this practice a party could secure general discovery from an opponent merely by giving a notice requiring the same. Further, the test for discovery was as broad as whether a document would lead to a train of inquiry in respect of a matter in question in the proceeding either by advancing or damaging a party’s case in relation to that matter: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 and locally, Mulley v Manifold (1959) 103 CLR 341.

5                     That approach to discovery may have well served the interests of justice in an era when the facility for the written recording of communications and financial transactions was limited to pen and ink and later a manual type writer. However, by the latter part of the 20^th century the advent in rapid succession of telex, photocopier, facsimile, email and electronic databases and the labour intensive quality of the task made the process of complying with general discovery applying the “train of inquiry” test an increasingly and at times inordinately expensive one to which the law of diminishing returns applied.

6                     The practice was also one open to abuse by a well resourced party disposed to find controversy in relation to the extent of its discovery obligation or compliance by an adversary with its own such obligation. In this fashion, a less well-resourced adversary might be oppressed and a trial on the merits postponed or even avoided. Even in the absence of such abuses these same results could follow in cases if, in considering interlocutory applications with respect to adequacy of discovery, both Bench and Bar forgot that the practice was meant to be a handmaiden of justice, not its master.

7                     Such matters were much remarked upon both formally and informally by the judiciary and practitioners and in reports concerning the justice system: see, for example, Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System (ALRC 89, 2000), Ch 6, paras 6.67 to 6.69. The law, practice and management of discovery in litigation continues to be a subject of interest for law reform; note the subsisting reference to the Australian Law Reform Commission, “The Review of Discovery Laws to Improve Access to Justice” (http://www.alrc.gov.au/inquiries/current/discovery/terms.html).

8                     This Court’s rules have long since been amended so as to deny a party general discovery as of right from an opponent upon the giving of a notice requiring the same. Discovery of any kind in litigation in the Court requires a grant of leave. Even then, discovery may be limited to particular documents or classes of document: O 15 r 3(1) Federal Court Rules. The Court may also, in the course of interlocutory case management, give directions providing for particular discovery.

9                     Even though in modern times both the facility with which discovery is available in litigation and the test for what is discoverable have narrowed it remains the case that an affidavit verifying a list of documents has, prima facie, a conclusive quality: Mulley v Manifold 103 CLR at 343; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 574 per Gummow J. Such an affidavit is conclusive unless  the insufficiency of the list of documents is demonstrated in one of the ways described by Menzies J in Mulley v Manifold (ibid):

[It] cannot be shown by a contentious affidavit that the discovery made is insufficient. Before 1912, it was thought that the insufficiency had to appear from the pleadings, the affidavit of documents itself or the documents therein referred to. However, in British Association of Glass Bottle Manufacturers Ltd. v. Nettlefold (1912) 1 KB 369 (1912) AC 709, it was established that the insufficiency might appear not only from the documents but also from any other source that constituted an admission of the existence of a discoverable document. Furthermore, it is not necessary to infer the existence of a particular document; it is sufficient if it appears that a party has excluded documents under a misconception of the case. Beyond this, the affidavit of discovery is conclusive.

10                  A claim of completeness in an affidavit verifying a list of documents for discovery is not inviolate. Were that to be so there would, as Lockhart J noted in National Crime Authority v S (1991) 29 FCR 203 at 211, be potential for abuse. There must exist though some basis for questioning the sufficiency of such an affidavit. In the absence of any such basis the affidavit is regarded as conclusive. On this subject and apart from the passage quoted from Mulley v Manifold, reference might usefully be made to Seven Network Limited v News Limited [2005] FCA 915 at [25] where the relevant authorities are helpfully collected by Graham J.

11                  In this case, pursuant to O 15 r 5 of the Federal Court Rules, each party sought and by an order dated 14 December 2009 was granted an order for general discovery in accordance with O 15 r 2. The intent of that order was to engage the obligations and limitations specified in r 2 in relation to discovery. In that regard, the “train of inquiry test” no longer governs the extent of the obligation. Rather, the general position is as set out in O 15 r 2(3):

[T]he documents required to be disclosed are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given:

(a)        documents on which the party relies; and

(b)        documents that adversely affect the party’s own case; and

(c)        documents that adversely affect another party’s case; and

(d)        documents that support another party’s case.

That sub-rule propounds a narrower test than the “train of inquiry test based on the former prescription “relating to any matter in question”: Spyer v Cuddles `N' Mum (Franchise) Pty Ltd (No 3) [2002] FCA 1563 at [4] per Lindgren J. As Crennan J stated in Shell Petroleum Company Ltd v Federal Commissioner of Taxation(2005) 60 ATR 173 at [14], “The effect of O 15 r 2(3) is to limit discovery, ordinarily, to documents which are directly relevant to the proceedings.” These amendments to the Court’s practice and procedure in relation to discovery were responsive to concerns of the kind which I have mentioned above.

12                  Recalling the origins of the practice of discovery and how and why it has evolved in the practice of this Court so as better to serve the ends of justice is helpful in resolving many of the differences between the parties in relation to discovery.

13                  I gave a general description of the issues in the case in an earlier interlocutory judgment: Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 2) (2010) 267 ALR 46 at [1] to [5]. Also noted in that judgment (at [7] to [16]) was the coincidence of criminal and related civil compensation proceedings arising from the same general circumstances pending in Dubai in the United Arab Emirates. Those proceedings remain pending in that jurisdiction.

14                  I do not propose to repeat what I stated on these subjects in my earlier interlocutory judgment. Rather, I propose to set out in a summary way the various remaining differences between the parties and the conclusions which I have reached as to their resolution. Some of the original differences have, commendably, been resolved between the parties after the filing of the various interlocutory applications with respect to discovery. Many though still remain. I have adopted the same abbreviations for the parties as I did in my earlier interlocutory judgment.

Sunland parties’ application against Prudentia, Hanley and Mr Reed

15                  Three broad issues arise for resolution in respect of this application:

(a)                whether certain documents over which client legal privilege has been claimed ought to be produced;

(b)                whether further and better discovery should be ordered in respect of certain documents more particularly identified in a letter from the solicitors for the Sunland parties, DLA Phillips Fox, dated 12 May 2010 to the respondents’ respective solicitors (discovery complaint letter); and

(c)                whether Mr Reed has adequately set out the basis for a claim of privilege against self-incrimination in respect of the production of particular documents.

Client Legal Privilege Issue

16                  The controversy centres on documents described in Annexure B to the discovery complaint letter. In a response of 20 May 2010 (discovery response letter) the solicitors for Prudentia, Hanley and Mr Reed (Freehills) assert that each of the documents in Annexure B “contain email communications sent to or by or copied to David Sinn of Freehills and brought into existence for the purpose of obtaining or acting in furtherance of legal advice”.

17                  It is not apparent from the description of the documents in Annexure B that any were sent to or by Mr Sinn. I can understand, having regard to the description how an interrogative note was sounded in the minds of those advising the Sunland parties as to how such documents fell within the scope of a client legal privilege claim.

18                  On behalf of Prudentia, Hanley and Mr Reed, Freehills have undertaken a further review of the documents identified there so as to visit afresh the claim for privilege originally made. As a result, no privilege claim is pressed in respect of three documents described by Ms Lincoln of that firm in para 3 of her affidavit filed on 9 June 2010 (documents 6, 8 and 16 in Annexure B).

19                  As to the balance of the documents, the claim for privilege is maintained in respect of either the whole or part of a document. As to documents where part only is said to be privileged, Freehills have taken it upon themselves to produce a “redacted” copy of the document in which the part said to be privileged has been obscured.

20                  The evidentiary basis of the remaining claim for client legal privilege has been amplified by Ms Lincoln in her affidavit. In particular, she draws attention to an email from Freehills’ Mr Sinn to Mr David Brown dated 13 September 2007 in which he states that, “As noted by Angus [Mr Reed], I act for Prudentia and have been responsible for the drafting of the Implementation Agreement …”

21                  The basis in legal principle of the claim for client legal privilege made by Prudentia, Hanley and Mr Reed is to be found in the following passage from the judgment of Young J in AWB Limited v Cole (No 5)(2005) 155 FCR 30 at [47]:

Where a lawyer has been retained for the purposes of providing legal advice in relation to a particular transaction or series of transactions, communications between the lawyer and the client relating to that transaction will be privileged, notwithstanding that they do not contain advice on matters of law; it is enough that they are directly related to the performance by the lawyer of his or her professional duty as legal adviser to the client: Minter v Priest [1930] AC 558 at 581–586; Balabel at 330; Nederlandse at 983 and Dalleaglesat 332–333.

Mr Sinn, it is submitted, is a lawyer retained for the purpose of providing legal advice in relation to the transaction concerning plot D17.

22                  The Sunland parties do not dispute the statement of legal principle relied upon by Prudentia, Hanley and Mr Reed. Nor do they dispute that, via Mr Sinn, Freehills had a retainer in relation to the dealings in relation to plot D17 to which this proceeding relates. They submit though that, self evidently, Mr Sinn’s role was not just that of adviser but also akin to that of a conveyancer, i.e. that of drawing documents to carry a transaction into effect. Further, they submit that a distinction is to be drawn between the internal communication of legal advice, a record of which communication they concede is privileged and records of consequential recommendations or courses of action, which are not privileged. In this regard they point to a passage from a judgment of Rath J in Komacha v Orange City Council, Unreported (Supreme Court of New South Wales, Rath J, 30 August 1979) which commended itself to Franki J in Brambles Holdings Ltd v Trade Practices Commission (No 3) (1981) 58 FLR 452 at 458-459:

The privilege attaching to a document will be accorded to copies made of it, provided confidentiality is maintained. If for example counsel's advice is circulated among officers of a corporation obtaining the advice, then privilege is preserved, whether the circulation is of the original or of copies. If in such a case an officer of the corporation were to report to another officer setting out portions of the advice, privilege would attach to the report in respect of those portions. The problem arises where the reporting officer makes recommendations that relate to the advice received. The recommendations seem to me to be an activity of the corporation, and not a transmission of the advice from one officer of the corporation to another. This will be especially so where the recommendations are not simply based on the advice received, but are made upon a critical appreciation of the advice received and the situation in which the client finds itself.

I think that a distinction should be drawn between the circulation in a corporation of advice received from legal advisers, and recommendations made by officers of the corporation as to the action to be taken, having regard to that advice. The recommendations are corporate action, and are not privileged, whether they follow the advice or disregard it. If the recommendations are found in a report which sets out the advice (or part of it) verbatim or in substance then I think that the privilege remains attached to that part of the report so setting out the advice. But if the officer making the recommendations is in substance tendering his own advice, then (if at all events he is not himself a professional legal adviser) his advice is not privileged.

23                  I accept as correct the statements of principle in relation to client legal privilege in the passages which I have quoted from the respective judgments of Young J and Rath J.

24                  What Prudentia, Hanley and Mr Reed have done in relation to the redacted documents is not just to rely upon the claim made in the affidavit verifying the list but to supplement the foundation for the claim via Ms Lincoln’s affidavit.

25                  In Fig Tree Developments Ltd v Australian Property Custodian Holdings Ltd [2008] FCA 1041 at [45] et seq I had occasion to review various authorities touching upon the practice which has come to be described as “redaction” but which in earlier years was known as “masking out” or just “covering up” portions of discovered documents produced for inspection. In so doing I reviewed cases concerning that practice both as applied to portions of documents in respect of which privilege was claimed and as applied to documents only parts of which were said to be relevant. It would only add unnecessarily to the length of this judgment to repeat what I there stated.

26                  Prudentia, Hanley and Mr Reed submit that, of those documents redacted to take account of the client legal privilege claim (collected in this form in exhibit BLL 56 to Ms Lincoln’s affidavit) sufficient remains to underscore, by reference to author and addressee, the foundation for the claim put forward in the affidavit verifying the list of documents. I agree. It is evident from what remains that the emails are communications between Mr Sinn and persons in Clyde & Co, an English legal firm with an office in Dubai. I do not see any basis for questioning the claim for privilege as made in the affidavit verifying the list of documents. There is no need to see the documents in unredacted form to reach this conclusion.

27                  As to the balance of the documents in Annexure B the production of which remains controversial, the position of Prudentia, Hanley and Mr Reed with respect to the privilege claim is not, with respect, advanced by Ms Lincoln’s affidavit. She states in respect of these that they, “are or contain communications between David Sinn and [Prudentia] pertaining to David Sinn’s professional role”. In respect of communications which are not apparently passing between client and legal adviser, this is altogether too bland a basis for a privilege claim. If such a seemingly unprivileged communication happens to record that Freehills’ Mr Sinn has been retained to provide legal advice that does not render the communication privileged. Especially that is so when it is recalled that this affidavit was furnished after DLA Phillips Fox had, by its letter of 28 May 2010 to Freehills, expressly drawn attention to Komacha v Orange City Council and to the apparent incongruity as between the privilege claim and the authors and recipients of the emails in question.

28                  A basis for doubting the sufficiency in this regard of the privilege claim in the affidavit verifying the list has been established and that doubt has not been quelled. The documents in question should be produced for inspection.

Documents referred to in the Discovery Complaint Letter

29                  This category covers a miscellany of classes of document in respect of which contentious issues have arisen.

Documents created prior to 9 August 2007 relating to Plot D17

30                  By reference to discovered documents, the Sunland parties have made certain suppositions about the course of events before and after 9 August 2007. These are detailed in para 22 of the discovery complaint letter. By reference to these sources, the assertion is there made that, on 9 August 2007, Mr Reed had a meeting with a Mr Jeff Austin of Dubai Waterfront and there was an “agreed deal” for plot D17. Such a meeting is noted by Mr Reed in his diary in an entry for 9 August 2007. It is further asserted, again by reference to such sources, that Mr Reed was apparently aware of the existence of plot D17 before that meeting and wanted to purchase it. On this basis the Sunland parties submit that there is a gap in the discovery of Prudentia, Hanley and Mr Reed with respect to how and when they first became aware of and entered into negotiations with Dubai Waterfront about plot D17. An order for particular discovery under O 15 r 8 is sought. They submit that it is “implausible” that Prudentia, Hanley and Mr Reed have no documents that relate to Mr Reed’s earlier knowledge of plot D17.

31                  The latter submission assumes that any documents relating to Mr Reed’s knowledge of plot D17 prior to 9 August 2010 do indeed fall within the ambit of O 15 r 2(3). I do not regard that as self evident. Be that as it may, the answer to this aspect of the Sunland parties’ application is that put forward on behalf of Prudentia, Hanley and Mr Reed. The affidavit verifying the list of documents is, prima facie, conclusive. It is certainly possible that Mr Reed’s awareness of plot D17 prior to 9 August 2007 came from documents but it may also have come from conversation alone. I am not persuaded that there is a basis for questioning the affidavit verifying the list. To pursue further this class of documents would also, in my opinion, be to tread down the “train of inquiry” path. I do not regard that pursuit as either a necessary or, in any event, a desirable interlocutory step in the conduct of this proceeding. It does not follow from this conclusion that a question directed to the subject of prior knowledge would not be permitted in cross examination in the event that Mr Reed chooses to give evidence.

32                  This aspect of the Sunland parties’ application fails.

Clyde & Co file

33                  That there were communications between Freehills and Clyde & Co in relation to plot D17 is evident from the discovery already given by Prudentia, Hanley and Mr Reed. That the related file of Clyde & Co is within their possession, custody or control, as the Sunland parties submitted, may be accepted. Considered in the abstract, it is conceivable that the file of a Dubai agent legal firm of an Australian legal firm retained in respect of a transaction concerning real property in Dubai might contain what one might term purely transactional or conveyancing documents which would not fall within the ambit of client legal privilege. Some already discovered communications which have passed between Freehills and Clyde & Co have been the subject of a claim for client legal privilege. That suggests that Clyde & Co did have an advisory role. The Sunland parties point to two further documents, an email from Mr Anthony Brearley of Dubai Waterfront to Clyde & Co, and its enclosed draft of a sale and purchase agreement in respect of plot D17 (documents with discovery numbers MJJ.009.001.0092 and MJJ.009.001.0093). These do indeed suggest that there may be purely transactional or conveyancing documents on the file of Clyde & Co.

34                  In these circumstances, not only is a legitimate basis for questioning the sufficiency of the affidavit verifying the existing list of documents of Prudentia, Hanley and Mr Reed revealed but, more importantly, the requiring of further and better discovery may not be an arid exercise. By “arid exercise” I mean arid in the sense that, insofar as it may be possible to predict the outcome in advance, the outcome of requiring particular discovery must inevitably be nothing more than a listing of documents to all of which client legal privilege must inevitably attach.

35                  There will therefore be an order that Prudentia, Hanley and Mr Reed make particular discovery of the file of Clyde & Co relating to the sale and purchase of plot D17.

Internal communications between Prudentia’s directors and employees about D17

36                  The Sunland parties point to particular paragraphs of the pleadings in support of a submission that the issue of “control” of plot D17 is a key issue in the proceeding. It is not necessary to detail those parts of the pleadings for the proposition put forward is clear enough and I did not understand any respondent to seek to controvert that. Premised on this proposition the Sunland parties submit that the status of “control” over plot D17 must have been communicated within Prudentia such that documents detailing this communication must exist. In response, Prudentia, Hanley and Mr Reed point to the prima facie conclusive quality of the affidavit verifying the list of documents.

37                  While the point made by the Sunland parties does not strike me as fanciful, that does not carry with it a conclusion that there exists a basis for questioning the sufficiency of the affidavit. The point involves an element of supposition about likelihood of behaviour in terms of internal communications. Were Prudentia a large, publicly listed company I would more readily be inclined to share in that supposition but it is not. This part of the Sunland parties’ application fails.

File notes and email communications between the respondents and Dubai Waterfront

38                  The Sunland parties point in particular to a paucity of discovered documents falling within this class. Their submission with respect to this class of document is essentially the same as that made in respect of the preceding class and so, too, is the submission in response. For reasons given in respect of the preceding class I am not persuaded that a basis exists for finding the verified lists of documents insufficient. This part of the Sunland parties’ application fails.

Documents showing “preferred negotiator” status

39                  The Sunland parties state that the foundation of the request for further discovery in respect of this category of document is an objective fact in issue pleaded in para 21.4(d) of the respondents’ defences namely, that Prudentia’s interest in plot D17 was as a preferred negotiator. Issue is joined with this allegation in the Sunland parties’ reply. The position of Prudentia, Hanley and Mr Reed is that “preferred negotiator” is nothing more than a descriptive term in a pleading, that by original list and supplementary list all documents relevant to the issue on the pleadings have been discovered and that the verifying affidavit should be regarded as conclusive. Once it is understood that the term “preferred negotiator” is not put forward as anything other than a description in a pleading, rather than, as the Sunland parties understood it, an asserted objective fact, namely the nature of Prudentia’s interest in plot D17, there is no basis for questioning the conclusiveness of the affidavits verifying the lists of documents.

Request for financial documents/documents relating to payment of AED 44,105,780

40                  The misrepresentations alleged by the Sunland parties in the statement of claim are said to amount to concerted action on the part of Mr Reed and Mr Joyce. On this basis and so far as discovery is concerned the Sunland parties submit that the fate of the AED 44,105,780 is relevant to the issue of whether there was any joint concerted action by Mr Reed and Mr Joyce. They point to ex post facto findings as to the flow of funds in an ex post facto report of GMK Centric, Chartered Accountants (GMK) of 23 December 2009, which has been discovered by the respondents as indicative of evidence that ought to be in the discovery of each of the respondents but is not. They further submit that, if this accounting firm is able to obtain the documents upon which its report (and an addendum of 1 April 2010) is based, such documents ought thereby to be regarded as within the possession, power or control of the respondents.

41                  The respondents’ attitude to this request for further discovery appears to be that whatever obligation they had to provide further discovery in respect of documents relating to the fate of the AED 44,105,780 received by Clyde & Co has been met by the later further discovery of the GMK report and its addendum together with the relevant annexures.

42                  I agree that the provision of these GMK materials was necessary further discovery. It does not follow from this that it is sufficient. The Sunland parties pointed by way of example to the reference in the GMK report of 23 December 2009 to the disbursement on 27 November 2007 of the sum of AED 22,052,890 by Clyde & Co to an account of Eightblue Limited with the Standard Bank in Jersey. The GMK report proceeds on an assumption that Eightblue Limited and a trust known as the Eightblue Trust are associated. In turn, other evidence suggests that the ultimate beneficiaries of the Eightblue Trust are Mr Joyce, his wife and their children. The point of all this is that the GMK report and its addendum, considered with other material discovered by the respondents, suggests that they may not have given full effect to what constitutes documents within their possession, custody or control when giving discovery. That is a sufficient basis upon which to order that the respondents (I include Mr Joyce deliberately) discover any documents within their possession, custody or control which show the payment of any part of the AED 44,105,780 to, or at the direction (directly or indirectly) of Mr Reed or Mr Joyce at any time after the receipt of that sum by Clyde & Co and the reasons for any such payment.

Request for tax advice document

43                  Allegations as to a reference by Mr Brown to “tax effectiveness” at a meeting on 19 August 2007 appear in the pleadings. This particular discovery has its origins in documents discovered by Prudentia, Hanley and Mr Reed which refer to “tax advice” and “structuring advice”. Included in those documents is an “email chain” (PRU.002.015.0615) relating to what is known as “the Hanley Agreement” and the payment by Sunland to Hanley on 1 October 2007. In this chain, the most recent email from a Mr John Roysmith includes the following statement, “[w]ill ask Derek for copies of tax advice and now how we apply the funds for compliance as an active business so no tax”. The Sunland parties put to Prudentia, Hanley and Mr Reed that this statement carried with it the implication that a tax advice had already been provided to Prudentia and that the advice related to how to use the funds received. The response given on behalf of the Prudentia parties was that this reference to “tax advice” was “not a reference to a specific written document”.

44                  The Sunland parties submit that, however implausible, the response given is nonetheless ambiguous and that, though requested, Prudentia, Hanley and Mr Reed have failed to confirm that there are no further documents dealing with relevant tax advice. This, with respect, seems to me a quite reasonable request for one legal practitioner to have made to another and not admitting of any undue burden in its answering, if only as a matter of professional courtesy. Such courtesy and co-operation between practitioners should be the norm in litigation conducted in this Court. Before me the position taken on behalf of Prudentia, Hanley and Mr Reed was that the affidavit verifying the list was conclusive. I do not share that view of the sufficiency of the affidavit in this regard. If an amalgam of documents constitutes the repository of the “tax advice”, these should be discovered. If not, this should be confirmed. As matters presently stand I agree with the Sunland parties that an element of ambiguity remains and that there is reason to doubt whether the nature of the discovery obligation has been understood by Prudentia, Hanley and Mr Reed. I therefore propose to order that Prudentia, Hanley and Mr Reed give further and better discovery, verified by affidavit, in respect of the document or documents, if any, which comprise the “tax advice” referred to in the email in question.

Request for Gmail account documents

45                  The inspiration for this particular controversy lies in what the Sunland parties submit to be an ambiguous response (para 2.13 of the discovery response letter refers) on behalf of Prudentia, Hanley and Mr Reed to a request made in the discovery complaint letter (paras 42 and 43 refer). I have read the relevant parts of these letters as well as those in the reply dated 28 May 2010 made by the Sunland parties’ solicitors (paras 56 to 61 refer). I can well see how, on one reading, there is an element of ambiguity in the response made concerning the Gmail account maintained by Mr Joyce but that is not the only way to read the response concerned.

46                  Prudentia, Hanley and Mr Reed were adamant in submissions made before me on instructions that there are no further documents in this category. Their solicitor, Ms Lincoln, attested (para 61 of her affidavit of 8 June 2010) that their supplementary list of documents had been served after the discovery complaint letter and the response made to that. I infer from this statement by her that this supplementary list was prepared and verified by affidavit full in the knowledge of the particular complaint made and with the benefit of appropriate professional advice as to the nature, including the ongoing nature, of discovery obligations. However much I might lament what, with respect, seems nothing more than a mutual failure of communication between professionals manifesting itself in this particular part of the interlocutory controversy, I am not persuaded that the Sunland parties have demonstrated a basis for questioning the sufficiency of the verifying affidavit. This part of their application therefore fails.

Prudentia’s and Hanley’s relationship with Mr Reed – Request for authority documents

47                  On the pleadings, Mr Reed was the main individual, on behalf of Prudentia and Hanley with whom the Sunland parties dealt in relation to the purchase of plot D17. Also on the pleadings, a degree of controversy attends the allegations made by the Sunland parties as to the nature and extent of Mr Reed’s authority. Contrary to an assertion made in the discovery response letter (para 2.14(c) refers), I do not see that this controversy is lessened by virtue of a non-admission as opposed to a denial in the relevant paragraph of the defence. The Sunland parties have asserted in correspondence that documents such as an employment contract or agency agreement relating to Mr Reed might be expected to exist on the basis of a presumption that he was to be remunerated for his services. Here again, Prudentia, Hanley and Mr Reed have given supplementary discovery, verified by affidavit, after the request made in the discovery complaint letter. Having read the exchange of correspondence concerned, I consider that the observations made by me in respect of the preceding category have like application. Cynicism alone is not, with respect, a basis for questioning the conclusiveness of a verifying affidavit. This part of their application therefore fails.

Documents relating to Och-Ziff 

48                  In an email from Mr Reed to Mr Brown dated 4 September 2007, to which reference is made in para 3.2.3. of the further and better particular furnished by Prudentia, Hanley and Mr Reed the statement is made by Mr Reed that (see Annexure BLL: 53 to Bronwyn Lincoln’s affidavit of 8 June 2010 with Sunland):

having spoken to our fund partners the fundamental questions I see is as follows: we would like to make a relationship work and we would like to develop this site with you but feel that the J/V structure as put forward by you to us does not we believe lead to a formula that fully aligns the interest of the fund with Sunland

It seems likely, having regard to context and what can be gleaned from other discovered documents that the reference to “fund partners” in this passage is a reference to a company known as Och-Ziff.  In the exchange of correspondence in relation to discovery the Sunland parties voiced an expectation, having regard to the passage quoted from the email of 4 September 2007 that Prudentia, Hanley and Mr Reed would have communicated with Och-Ziff about the nature of plot D17, their intentions in relation to it, their interest in it and the basis upon which they would deal with Sunland. The ability of the Sunland parties to reach any deeper understanding concerning the role of Och-Ziff from discovered documents was inhibited by the practice adopted by those acting for Prudentia, Hanley and Mr Reed of masking particular documents for “relevance and confidentiality”. There can be vices in the adoption of that practice, as I describe in my judgment in the Fig Tree Case.

49                  By the time the interlocutory application in relation to discovery came to be heard and with the benefit of the views expressed in the exchange of correspondence which commenced with the discovery complaint letter, Freehills had embarked on a process of reviewing the early masking of Och-Ziff related documents but had not by then completed that task. I commend the adoption of that course of action. I did have an initial concern that the Sunland parties’ interest in the discovery of documents in this class might be “fishing” or at least a manifestation of the earlier “train of inquiry” basis for discovery. However, at least as presently advised, the more I reflect upon the import of the statement made in the email which have quoted, the more it seems to me that, even applying the more stringent contemporary test for discovery, there may well be substance in the compliant made by the Sunland parties. Given the revision underway, it would be premature to make any orders in relation to this category of document. I should expect that any lingering controversy could be resolved in short order at the next directions hearing. So much of the Sunland parties’ application as relates to this category is stood over until then.

Sunland parties’ request for documents relating to the engagement of Freehills by Hanley/Prudentia 

50                  There is no doubt that this category relates directly to an issue on the pleadings. It is alleged in para 31 of the present version of the statement of claim that Hanley retained and instructed Mr Sinn (of Freehills) to do certain things. In response, there is pleaded an admission of a retainer and an allegation that it was Prudentia, not Hanley, which retained Mr Sinn. In turn, there is an allegation in the statement of claim that by doing the things alleged in para 31 (and 32 also) Hanley carried on business in Australia. The allegation thus has a jurisdictional resonance.

51                  Hanley was incorporated n Singapore on 27 August 2007. The Sunland parties do not gainsay the statement made to them by Freehills on behalf of Prudentia, Hanley and Mr Reed in response to the discovery complaint that there was no contemporaneous formal engagement by Hanley of Mr Sinn for the purposes of the Legal Profession Act 2004 (Vic), the legislation regulating the legal profession in that State. They do though submit that it is inherently likely that there must have been some form of instruction given to Freehills that led to the replacement of Prudentia by Hanley in the Implementation Agreement. In response to this Prudentia, Hanley and Mr Reed note that their supplementary list of documents was served after the discovery compliant letter and rely on the prima facie conclusiveness of the verifying affidavit. They also make reference to client legal privilege.

52                  In my view there is substance in the submission as to inherent likelihood made by the Sunland parties. A document may evidence a retainer by Hanley even if it does not, in terms, amount to a formal engagement for the purposes of professional regulatory legislation. I consider that the Sunland parties have established a basis for questioning the sufficiency of the existing discovery of Prudentia, Hanley and Mr Reed. It does not necessarily follow from this conclusion that there should be an order for further discovery in this regard. It would be futile to make such an order if it must inevitably lead to a valid claim for client legal privilege.

53                  On this subject, the Sunland parties submission was that there was no inevitability about this having regard to the way in which Prudentia, Hanley and Mr Reed had pleaded their Defence. The way in which that was pleaded in relation to the retainer and the giving of instructions to Mr Sinn amounted they submitted, to a waiver of such privilege as might otherwise have been claimed in that regard.

54                  So far as a matter of pre-trial practice and procedure is concerned, it is the common law with respect to client legal privilege which is relevant: Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49. At common law, client legal privilege is not merely an evidentiary privilege but rather is a substantive right: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543. A person entitled to the benefit of client legal privilege may waive that privilege with that waiver, in certain circumstances being imputed from that person’s conduct: Mann v Carnell (1999) 201 CLR 1 at 13.

55                  The Sunland parties particularly referred to Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341, which is an example of the application to particular facts of the principle stated in Mann v Carnell. They submitted that, having regard to the pleadings, the present was a case where, as the Full Court had, at [54], put it in the Rio Tinto Case, the conduct of Prudentia, Hanley and Mr Reed “is inconsistent with the continued confidentiality of the communication because [they have] put in issue the character or contents of the communication” in their defence. I agree that this is the correct way to characterise the effect, in law, of the conduct of Prudentia, Hanley and Mr Reed as evidenced by their pleading. I therefore propose to order that they discover all documents in their possession, power or control and relevant to any issues on the pleadings which evidence the retainer by Hanley of Mr Sinn or the giving of instructions by Hanley to Mr Sinn. It may be that some subsisting client legal privilege relating either to advice or litigation will still be maintainable in respect of such documents. The making of this order would not foreclose the making of any such claim in the giving of discovery or appropriate masking so as to preserve any subsisting privilege.

Request for documents relating to mail servers

56                  The underlying interest in the Sunland parties in this category of document is that whether emails by Mr Reed to Mr Brown were transmitted through servers in Australia is relevant to a jurisdictional controversy in the proceeding. For their part, Prudentia, Hanley and Mr Reed rely on the prima facie conclusiveness of an affidavit verifying an affidavit of documents.

57                  There is though, in my opinion, reason to question the sufficiency of their existing discovery. That reason is detailed in the letter from DLA Phillips Fox to Freehills dated 28 May 2010 (at paras 70 to 72). In essence though, even were it the case that neither Prudentia, Hanley nor Mr Reed operate their or his own email server, but instead rely on an external internet service provider (ISP) one might reasonably expect that there would be invoices from that ISP. Such invoices may have evidentiary relevance with respect to the Court’s jurisdiction to entertain the proceeding. Prudentia, Hanley and Mr Reed seem to me to have misapprehended the ambit of their discovery obligation in this regard. I therefore propose to order that they give further discovery of documents relating to the location and architecture of either their own email server or that of an external internet service provider engaged by them during the period in question in this proceeding.

Documents relating to telephone accounts

58                  Such documents may have a like evidentiary use in relation to jurisdiction to documents relating to the location of an email server. I did not understand Prudentia, Hanley and Mr Reed to gainsay this but rather to draw attention to the inclusion of telephone records in the supplementary list of documents which they had provided. The Sunland parties made the valid point in their submissions that the “power” aspect of the discovery obligation meant that the obligation was not limited to telephone records which were in the possession of Prudentia, Hanley and Mr Reed but also extended to those which could be obtained from their telephone service provider. They also sought formal confirmation from them that there were no SMS messages to discover.

59                  It seems to me reasonably likely that the parties concerned will be able to resolve any lingering controversy in respect of this category of documents. It will be necessary for the Sunland parties to review the supplementary discovery and also for Prudentia, Hanley and Mr Reed to reflect on the ramifications of “power or control”. Further, it ought to be no hardship in confirming, if that be the case, that there were no SMS messages to discover. I therefore also stand over to the next directions hearing, for further consideration if needs be, this aspect of the Sunland parties’ discovery application.

Affidavit deposing to Mr Reed’s basis for a claim of self-incrimination privilege

60                  The privilege against self incrimination is a fundamental common law right.

61                  This is neither a criminal proceeding nor one for the recovery of a pecuniary penalty. Mr Reed may therefore be ordered to give discovery by list of documents verified by affidavit. Notably, Mr Reed did not seek an order that, even though the proceeding was neither criminal nor penal itself, he should nonetheless not be obliged to give discovery at all

62                  The privilege against self incrimination can extend to the protection of a person not only against being required to produce particular documents but also to identifying particular documents or explaining their whereabouts: Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 at 393. In circumstances in which an ability to claim the privilege arises it protects against even a seemingly innocuous requirement which may nonetheless provide a link in a chain of investigatory inquiry. That counsels a cautious approach both to the imposition of a discovery requirement or its enforcement in circumstances where the basis for a claim of privilege may exist.

63                  A requirement to file a verified list of documents for the purposes of discovery does not carry with it a denial of any valid self incrimination privilege claim. Rather, it is for the person subject to the requirement to point to facts which enable that person to refuse to give discovery in respect of certain documents. The following observations made by Isaacs J in R v Associated Northern Collieries (1910) 11 CLR 738 at 742-743 are pertinent:

The test whether an order for discovery can be made is whether the Court can see that the discovery may expose the party to a penalty or not. Very often that depends upon whether the action itself is a penal proceeding. It does not rest upon the fact that it is a civil action. An action is none the less civil merely because it is penal ...

There is an inherent distinction between a civil action to prevent or redress a civil injury on the one hand, and a civil action to recover a penalty on the other. In the latter case the whole and avowed object of the proceedings is the infliction of the penalty, and the discovery sought of documents relevant to the claim can therefore have no other intended consequence. It does not require in such a case the oath of the defendant to establish the fact that the production of the documents would tend to penalize him. The Court can see the effect of discovery from the nature of the proceeding. In the former case there is no such necessary consequence, and whether the objectionable tendency exists or not has to be otherwise ascertained, and claiming immunity upon oath in the course of making discovery is the most usual, but not the only other means of establishing it. [Emphasis added]

64                  The requirements in respect of making of a claim for self-incrimination privilege were described by Gibbs CJ in Sorby v The Commonwealth of Australia (1983) 152 CLR 281 at 288 in the following way:

It has been a firmly established rule of the common law, since the seventeenth century, that no person can be compelled to incriminate himself. A person may refuse to answer any question, or to produce any document or thing, if to do so "may tend to bring him into the peril and possibility of being convicted as a criminal": Lamb v. Munster (1882) 10 QBD 110, at p 111. The mere fact that the witness swears that he believes that the answer will incriminate him is not sufficient; "to entitle a party called as a witness to the privilege of silence, the Court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer": R v. Boyes [1861] Eng R 626; (1861) 1 B & S 311, at pp 329-330 [1861] Eng R 626; (121 ER 730, at p 738) .

65                  I did not understand these statements of principle to be disputed on behalf of Mr Reed but rather the submission was that the particular circumstances of this case were different such that there was no need for the factual basis for the claim to be detailed by him by affidavit. It was further submitted that, in any event, Mr Reed should not be required to give discovery by the disclosure of a list of documents because, in light of the discovery given by Prudentia and Hanley, he had a reasonable basis for believing that, were he otherwise under any obligation to give discovery, the documents concerned were already in the possession, custody or power of the Sunland parties such that O 15 r 2(4) would have application to relieve him from giving discovery.

66                  At present, all that Mr Reed’s list of documents, as verified by his affidavit, does in respect of self incrimination privilege is to assert that the documents in Pt 3 of Sch 1 to the list are privileged from production “on the grounds of privilege against self incrimination”. He does not swear to a basis for believing that he should be relieved from giving discovery by virtue of O 15 r 2(4).

67                  I do have evidence of a pending criminal proceeding in Dubai to which Mr Reed is a party. I referred to that foreign proceeding in my earlier interlocutory judgment. Reference was also made, in, with all due respect, a somewhat elliptical way in the submissions on behalf of Mr Reed to the Sunland parties having made reports to Australian investigative authorities concerning the subject matter of this proceeding. The occasion for this reference seemed to be that in it there was a separate basis for the claiming of self incrimination privilege.

68                  What I do not have is an affidavit from Mr Reed himself which clearly articulates the basis upon which he claims privilege. It is true that certain inferences are open in light of other evidence concerning the existence of the foreign criminal proceeding. However, that may not, it seems, be the full extent of the basis of his claim. Neither the Court nor the Sunland parties should be left in any doubt as to the basis upon which Mr Reed makes his claim for self incrimination privilege. An understanding of that may also have utility in the conduct of these proceedings beyond any question of whether he ought to be obliged to give discovery. Establishing with precision from Mr Reed the facts, matters and circumstances upon which he relies is a necessary first step, and perhaps the only necessary step, in deciding whether and to what extent, if at all, he ought to be obliged to give discovery in respect of the documents listed in Pt 3 of Sch 1.

69                  The Sunland parties also submitted that, given the nature of this proceeding, Mr Reed’s obligation was to make discovery but in so doing he may claim privilege in respect of individual documents the disclosure of which might tend to incriminate him. This is one way in which a privilege claim may be made. It may also in other circumstances be made in respect of a class of documents (or even, exceptionally in a case which is not itself criminal or penal in character, be made in respect of being obliged to give discovery at all). It is not necessary further to explore this submission in this case because Mr Reed has made a claim in respect of identified documents, those listed in Pt 3 of Sch 1.

70                  I do not believe that Mr Reed should, for the present at least, additionally be required to go further so as to verify by affidavit the facts, matters and circumstances by reference to which he has a basis for believing he need not give discovery by virtue of O 15 r 2(4). If he does indeed come adequately to identify a basis for a claim for self incrimination privilege the latter alternative ground will be superfluous. Further, if he does have a basis for his asserted self incrimination privilege, to impose this additional requirement on him may be to violate the privilege on a “link in a train of inquiry” basis.

71                  I therefore propose to order that, on or before 18 August 2010, Mr Reed file and serve on the other parties to the proceeding an affidavit detailing the facts, matters and circumstances by reference to which he claims self incrimination privilege in respect of the documents in Pt 3 of Sch 1.

72                  That will enable the ramifications of the claim to be considered further at the next directions hearing. To this extent also the Sunland parties’ application should be stood over for further consideration.

73                  This disposes of the application brought by the Sunland parties in relation to discovery. The respondents have also raised a number of issues in relation to the discovery of the Sunland parties. There is a degree of overlap between the issues raised by Prudentia, Hanley and Mr Reed on the one hand and Mr Joyce on the other.

Respondents’ Discovery Issues

“The Snapshot”

74                  Regard to the affidavit evidence of Mr Coogan (of DLA Phillips Fox), Mr Dumka (the IT Manager of the Sunland parties) and Ms Sung (of Norton Rose) provides the following background.

75                  In June 2008 Mr Dumka transferred the contents of Mr David Brown’s email folders from Sunland’s Microsoft Exchange email server on the Gold Coast in Australia to a new email server which was established in Sunland’s office in Dubai in the United Arab Emirates. The “snapshot” was the name that Mr Dumka gave to the collection of data that he copied and transferred between the two email servers. That collection of data consists of two “PST files” totalling about 1.9 GB. It contains several thousand emails. It is, in turn, part of the data on Sunland’s exchange server. Forensic copies have been taken of Sunland’s exchange email server and 27 November 2007 exchange email server back up tape, in all 79TB (i.e. 79,000 GB) and 68TB (i.e. 68,000 GB) respectively.

76                  Mr Joyce has sought the production of the “snapshot” pursuant to O 15 r 10. It is thought that the investigation of the “snapshot” may be of use in relation to a group of emails which the respondents assert were sent by or to Mr Brown and which have come to be termed “the Contested Emails”.

77                  Whether production is required under that rule is controversial. An exchange of correspondence has occurred between the parties in relation to a regime which would permit a process of forensic investigation and at the same time preserve confidentiality in respect of matters not relevant to the issues in this case. I was informed on behalf of Mr Joyce on the hearing of his application that this aspect of it was “on hold”. I understood that to mean that there was a prospect that it may not need to be pressed because it may be possible for the parties to come to a suitable arrangement by agreement. Insofar as Mr Joyce’s application concerns this issue I therefore stand it over for further consideration at the next directions hearing.

“Schedule A” Documents

78                  Paragraph 2 of Mr Joyce’s application seeks an order pursuant to O 15 r 8 for the particular discovery of documents itemised in Schedule A to that application.

79                  Of the documents there itemised, I was informed on behalf of his client that a position satisfactory to him had been reached in respect of those described in items 1 to 7 (inclusive), 10 to 14 (inclusive), 16 and 17. I was further so informed that particular discovery of the document described in item 8 was not pressed.

80                  A controversy remained as to whether particular discovery should be ordered in respect of documents described in item 15 in Schedule A in this way, “[a]ll previous versions and drafts of the DLA Phillips Fox Memorandum and all Documents that record comments or instructions made in connection with the DLA Phillips Fox Memorandum”. For the purposes of Mr Joyce’s application the “DLA Phillips Fox Memorandum” is the document discovered by the Sunland parties with the document identification number SUN.002.002.0500. It is a memorandum dated 29 May 2009 entitled “Trade Practices Advice re Dubai Waterfront (2)” sent from Mr Eames of DLA Phillips Fox to Mr Brown with a copy to Mr Soheil Abadian of Sahba Abadian. It is, in effect, an advice on prospects in relation to what has become the claim made in the present proceeding. A copy of the DLA Phillips Fox memorandum became Exhibit 2 on the interlocutory discovery applications.

81                  The original of the DLA Phillips Fox memorandum has been discovered by the Sunland parties. No privilege has been claimed in respect of it. On behalf of Mr Joyce it is submitted that those advising him are drafts of this memorandum and documents recording comments or instructions made in connection with it. It is submitted that there has been a waiver of privilege in respect of such documents by the Sunland parties having regard to the discovery of the DLA Phillips Fox memorandum itself. The question, in effect, was whether such material constituted what has come to be termed “associated material”, i.e. material associated with an otherwise privileged document in respect of which privilege has been waived such that there is an imputation that privilege has also been waived in respect of the associated material.

82                  To determine the extent of waiver in respect of associated material it is necessary to determine whether what a person has chosen to release from privilege represents the whole of the material relevant to the same issue or subject matter. The relevant considerations are summarised in the following passage from the judgment of Gibbs CJ in Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 482:

It is not difficult to see that where a document deals with a single subject-matter it would be unfair to allow a party to use part of the document and claim privilege as to the remainder. So it has been held that where cross-examining counsel asked a witness whether he had said certain things in a written statement, examining counsel was entitled to require the whole statement to be put into evidence: Burnell v. British Transport Commission [1956] 1 QB 187. Similarly, where a party disclosed a document which contained part only of a memorandum which dealt with a single subject-matter, and then read the document to the judge in the course of opening the case, it was held that privilege was waived as to the whole memorandum: Great Atlantic Insurance Co. v Home Insurance Co. [1981] 1 WLR 529. In that case Templeman LJ said, at pp 538-539:

‘... the rule that privilege relating to a document which deals with one subject matter cannot be waived as to part and asserted as to the remainder is based on the possibility that any use of part of a document may be unfair or misleading, that the party who possesses the document is clearly not the person who can decide whether a partial disclosure is misleading or not, nor can the judge decide without hearing argument, nor can he hear argument unless the document is disclosed as a whole to the other side. Once disclosure has taken place by introducing part of the document into evidence or using it in court it cannot be erased.’

The same test must be applied in deciding whether the use in legal proceedings of one document impliedly waives privilege in associated material. In Nea Karteria Maritime Co. Ltd. v. Atlantic & Great Lakes Steamship Corporation (No. 2) (1981) Com.LR 138 Mustill J. dealt with this question and, at p 139, suggested the following test:

‘... where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood.’

83                  Later in time, in Mann v Carnell (1999) 201 CLR 1 at [29], Gleeson CJ and Gaudron, Gummow and Callinan JJ stated:

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. . . . 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.

84                  In Spalding v Radio Canberra Ltd (2009) 166 ACTR 14 at [62] Refshauge J discerned a distinction between the approach of the High Court to waiver between Maurice and Mann. His Honour’s view was that, “[t]he earlier case emphasised fairness while the latter reshaped the test to one of inconsistency, where necessary informed by consideration of fairness.” That difference in emphasis discerned by his Honour may though, with respect, merely be referable to the context in which the particular need to consider the law with regard to waiver arose in each of those cases. In the passage which I have quoted from Mann it is true that there is emphasis on inconsistency. That is in the context of explaining how disputes as to whether there has been implied waiver usually arise and how they are then resolved. In the passage which I have quoted from Maurice, and, in turn, in the English cases referred to in that passage, inconsistency of conduct, even if that very term is not used, is no less evident as being relevant to why it is that waiver will be implied in such circumstances. In Mann, at [28], fn 34, Maurice is the case cited by Gleeson CJ and Gaudron, Gummow and Callinan JJ as authority for this proposition, “[i]t is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege.” In turn, it is that statement of legal principle which is repeated in Osland v Secretary, Department of Justice (2008) 234 CLR 275 at [49].

85                  Attention was drawn on behalf of Mr Joyce not only to the passage from Maurice cited above but also to the way in which the test had been expressed by the Victorian Court of Appeal in British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524 at [121]:

As we apprehend it, where legal professional privilege is waived in relation to one piece (or part) of advice, the privilege is impliedly waived in relation to another if - and only if - that other is necessary to a proper understanding of the first. As established by the High Court (at least since Mann v. Carnell) the test in such cases is whether it would be "inconsistent" for a party to rely upon, and so to waive legal professional privilege in respect of, the one without also being taken to have waived privilege in respect of the other.’

Attention was further drawn to the following observation made by Young J in AWB Limited v Cole (No 5) (2006) 155 FCR 30 at [167] in respect of this passage from the British American Tobacco Case:

It is no doubt correct that a mere reference to the existence of legal advice in a disclosed document will not be regarded as a waiver of its contents, albeit a different conclusion would follow if the gist, substance or conclusion of the legal advice is voluntarily disclosed. But, with great respect to their Honours, the proposition concerning waiver of associated material is expressed too narrowly and in a way that is not consistent with the test propounded by the High Court in Maurice. The principle propounded by the Court of Appeal may work adequately enough in some circumstances, particularly where privilege is sought to be maintained over one part of a single piece of legal advice, but in other circumstances it will not give effect to the principles explained in Maurice.

I respectfully agree with the observation made by Young J.

86                  To borrow from the passage in the judgment of Mustill J in Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation (No. 2) (1981) Com.LR 138 (as his Lordship then was), quoted by Gibbs CJ is Maurice, is this a situation where the Sunland parties are seeking to “pluck out of context” the DLA Phillips Fox` Memorandum? Put another way but to no different effect, is it “inconsistent” for the Sunland parties to waive privilege in respect of the DLA Phillips Fox Memorandum but seek to retain it in respect of earlier drafts and comments?

87                  For Mr Joyce it was submitted that, even judged by reference to the narrower conception of “associated materials” evident in the passage quoted from the British American Tobacco Case, the material it sought  The Sunland parties rely on the same authorities but for the opposite conclusion.

88                  The answer to this particular discovery controversy may be illustrated by analogy. Were the memorandum not that of a solicitor but a joint opinion of senior and junior counsel, it would not follow from a client’s waiver of privilege in the joint opinion that privilege was also waived by necessary implication in an early draft prepared by junior counsel much revised after consultation between counsel before that final, joint opinion was furnished. If, on the other hand, reference was made in the joint opinion to the summary of facts in it being based on the “version of events as related by Mr X in his statement briefed for this purpose” such privilege which would otherwise exist in respect of the statement of Mr X would be waived by implication. In the former situation it is a misconception of principle to describe the junior’s draft as “associated material” privilege in which is waived by implication. The draft is “associated” with the final joint opinion only in an anterior, temporal sense. In the latter case privilege in the statement is waived by implication because that is necessary so as to allow the joint opinion to be read in context. It would be “inconsistent” to waive privilege in respect of the joint opinion but to seek to retain it in respect of Mr X’s statement. The statement comprises “associated materials”. The drafts and comments which Mr Joyce seeks do not constitute “associated materials” in the proper conception of that term as explained in Maurice. Rather, they are correctly to be regarded as separate materials.

89                  This part of Mr Joyce’s application fails.

90                  Mr Joyce did not press for the relief sought in para 3 of his application.

Schedule B documents – Mr Brown’s notebook

91                  As to para 4 of his application, Mr Joyce pressed for the production for inspection of Mr Brown’s notebook. The document had been discovered by the Sunland parties but the copy supplied to Mr Joyce had been “redacted” for relevance and also on the basis of that part of client legal privilege known as advice privilege. On the hearing of the application I was furnished, for the purpose of determining the discovery application, with a copy of that notebook in that form and also with a copy of the original notebook (these became Exhibit 3 on the interlocutory discovery applications).

92                  I have already referred to the judgment in the Fig Tree Case and to the vices which can attend masking out for relevance and confidentiality. It is to be remembered though that in that case the order in respect of discovery was for discovery to be given by categories of documents. In this case the order provided for general discovery but, as noted, it was limited by reference to the provisions of O 15 r 2. As further already noted, O 15 r 2(3) narrows the test for discovery.

93                  Under the Uniform Civil Procedure Rules 1999 (Qld) the test for what is now termed “the duty of disclosure” in Queensland civil practice has also been narrowed, “directly relevant to an allegation in the pleadings” see UCPR 211(1)(b), with that duty of disclosure not applying to “a document in relation to which there is a valid claim to privilege from disclosure”, UCPR 212(1)(a).

94                  In Tarong Energy Corporation Limited v South Burnett Regional Council (formerly Nanango Shire Council) [2009] QCA 265 at [35] Fraser JA ( Muir JA and White J agreeing), stated that those rules were “compatible with the established practice under which documents may be disclosed in a form which conceals privileged parts of the documents”, citing as to that practice the judgment of McPherson J in Curlex Manufacturing Pty Ltd v Carlingford [1987] 2 Qd R 335, a judgment which Fraser JA noted had been described by Hoffmann LJ in GE Capital Corporate Finance Group Ltd v Bankers Trust Co [1995] 1 WLR 172 at 176 as masterly and required reading on this subject. In the Tarong Energy Corporation Case, Fraser JA noted of Telstra Corporation v Australis Media Holdings (Unreported, Supreme Court of New South Wales, McLelland CJ in Eq, 11 February 1997) and Menkens v Wintour [2007] 2 Qd R 40 (two cases to which I also referred in the Fig Tree Case), that these were “concerned with incomprehensibility resulting from the redaction of irrelevant material, rather than privileged material”. His Honour also stated (at [36]), citing Curlex Manufacturing in support:

Where, as here, a party masks all of the privileged parts of a document, a mere consequential difficulty in comprehending the balance of the document does not of itself justify abrogation of the privilege.

There seems to have been implicit recognition in the Tarong Energy Corporation Case that what was said in Telstra Corporation v Australis Media Holdings and Menkens v Wintour in relation to the practice of redaction for irrelevance or confidentiality was applicable to practice under the UCPR and that this was so even though the decision as to direct relevance to an issue on the pleadings was consigned by those rules to the person subject to the duty of disclosure. Menkens v Wintour was, of course, a Queensland case which arose under the UCPR.

95                  The point of this excursion into Queensland civil practice is that what was said in Telstra Corporation v Australis Media Holdings, though a case decided against the background of an order for discovery of documents by category, was regarded in the Tarong Energy Corporation Case as relevant to a duty of disclosure measured reference to a “directly relevant to an allegation in the pleadings test”. It was just that in the Tarong Energy Corporation Case the redaction which was under challenge had been undertaken on the basis of privilege, not alleged irrelevance. Though in the present case the order provides for general discovery, the resultant obligation is measured by a similarly confined test – “in accordance with r 2”. By analogy, what was said in Telstra Corporation v Australis Media Holdings of the risks attendant in that practice remains relevant. So, too, of course, does the distinction noted between redaction on the basis of irrelevance or confidentiality and redaction on the basis of privilege.

96                  This conclusion differs from that reached by Besanko J in Egglishaw v Australian Crime Commission (No 2) (2009) 253 ALR 354. His Honour discerned a different outcome in relation to the permissibility of unilateral redaction for relevance depending on whether there was an order for general or limited discovery with the practice being permissible where the order was for general discovery and the affidavit verifying the list then having the usual, prima facie effect. As his Honour expressly acknowledged (at [26]) that conclusion was directly at odds with observations made by Selway J in Australian Competition and Consumer Commission v McMahon Services Pty Ltd[2004] ATPR 41-996 which observations had been referred to with approval in a general way in a number of later authorities.

97                  What Selway J had to say in Australian Competition and Consumer commission v McMahon Services Pty Ltd  at [12] – [13] was this:

12        It may be that there is a practice in England that parts of a document can be masked simply because those parts of the document are not thought to be relevant: see GE Capital Corporate Finance Group Ltd v Bankers Trust Co & Ors [1995] 1 WLR 172. I note that that case would seem to have been followed by Olsson J of the South Australian Supreme Court: see Peat Marwick Hungerford’s v Executor Trustee & Ors (unreported decision delivered 25 October, 1995). However, in this Court the Rules and the practice would seem to be quite clear that what must be discovered and produced (save for any question of privilege) is the whole of the document if any part of it is discoverable. Indeed, the fact that part of the document is relevant may well mean that all of it is relevant if only to provide the context for that part of it which is directly relevant.

13        There remains a discretion not to order that the masked part of the documents be produced: see, in the somewhat different context of Order 15A, Sony Music at 89-92. There is no obvious reason in this case why the whole of the documents should not be discovered and produced. True it is that some parts of them seem to have very little evidentiary value and some parts of them make allegations against third parties which may well be quite unfair. However, all of the allegations seem to concern the first respondent and at least one of the allegations is directly related to the matters which are the subject of these proceedings. The third parties are protected by the inherent powers of the Court to prevent the publication or use of discovered material for purposes not connected with the litigation.

98                  The view taken in Telstra Corporation v Australis Media Holdings, which I shared in the Fig Tree Case, was that, save in cases where a privilege is claimed, the whole document should be produced unless there were prior agreement to the contrary from the opposing party or some prior dispensation by the court. One reason given was that the obligation was to discover the document; another given was that of loss of comprehensibility arising from too assiduous a practice of masking out. I note that in Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335 Sundberg J also regarded the practice of unilateral masking out for relevance as inappropriate.

99                  The view expressed by Selway J in Australian Competition and Consumer Commission v McMahon Services Pty Ltd is one which, with respect, I share. It accords, for reasons which I have set out above, with what seems to be the view of the Queensland Court of Appeal in the Tarong Energy Corporation Caseand also of Mackenzie J in Menkens v Wintour as to the effect of the position under the UCPR in respect of a general duty of disclosure. An analogous position arises under the rules of this court where discovery is ordered to be given under O 15 r 2. A duty to discover documents within the classes set out in O 15 r 2(3) arises but any objection to production based on a claim of privilege is to be “sufficiently stated” in the list of documents filed and served pursuant to that duty.

100               One of the cases to which McPherson J refers in Curlex Manufacturing Pty Ltd v Carlingford is Carew v White (1842) 49 ER 542. In that case, as McPherson J (at 341) accurately describes it, Lord Langdale MR had “reluctantly ordered the production of diaries containing business entries material to the partnership litigation notwithstanding that they also contained entries concerning private and family matters which were not relevant to any issues”. His Lordship made this order because the defendant having “mixed his private affairs with the partnership transactions, it is his duty to separate them, and if he cannot, he must necessarily suffer the inconvenience arising from his own act”. To this order was added though “the usual order for sealing up not relating to the partnership transactions, and he may, if he can, avail himself of this qualification” (ER 542 at 544). Further, the objection to production in that case went only to relevance. It was not grounded in the assertion of a privilege.

101               I have, in any event and as invited, perused Mr Brown’s notebook in its unredacted form. There are a number of entries in the notebook in which the word “waterfront” appears prior to the first of the unredacted entries. Those other entries appear to have been made before August 2007. I cannot tell whether or not the related entries concern the same development as that in which plot D17 is situated. There are certainly other entries which do not, albeit on the scrutiny of someone other than their author, appear to have anything to do with any waterfront land. This though is a case where Mr Brown has mixed a number of subjects in the one notebook. It may well be more than a possibility that the existing redaction for relevance is not only accurate but also errs on the side of caution but I cannot be sure of that. Further, the general run of entries assists in giving context to those conceded to be relevant. I have considered whether I should, as a matter of discretion, leave to be produced only the presently redacted version of the notebook, rather than, as would otherwise be required, the document itself. On balance, the considerations which I have just mentioned lead me to the view that, subject to such just claims as to privilege as may be applicable to particular entries, the whole of the notebook ought to be produced for inspection. I propose to order accordingly. The redaction which has occurred does not differentiate on its face the reason for that redaction. I am not therefore able to tell which parts of the redacted copy have been masked out for reasons of privilege. It is not therefore possible to give any more precision to the reservation in respect of the production obligation.

Other Schedule B documents

102               A controversy exists in relation to a claim by the Sunland parties for client legal privilege in respect of documents set out in para 4 of Schedule B to Mr Joyce’s notice of motion. In effect, it is for Mr Joyce to demonstrate that a basis exists for questioning the prima facie conclusive effect of the affidavit verifying the Sunland parties existing discovery. The Sunland parties have not just relied on that affidavit but have supplemented the claim there made by further facts concerning the documents as deposed to by Mr Coogan of their solicitors (paras 74 to 81 of his second affidavit).

103               One of the documents, a report prepared on or about 8 June 2008 by Mr Lunjevich of Hadef lawyers (then the Sunland parties’ Dubai lawyers) is stated to have been prepared for the dominant purpose of anticipated litigation. There is no basis for questioning the factual foundation of the privilege claim. On those facts, a privilege claim known to law is raised. Mr Joyce, I thought, conceded as much in his submissions. Even accepting this though, Mr Joyce pointed to other documents in the list in para 4 of Schedule B (for example, documents numbered 56, 68, 135, 137, 149, 150 and 159) and submitted that, as described in the list, those documents appeared to have been brought into existence at a time when no litigation was contemplated and do not appear to relate to any advice being obtained at the time when they were created.

104               Mr Coogan gives details of the factual position in relation to each of the documents in his affidavit. The answer to this complaint of Mr Joyce is that, whatever might be the position in relation to original documents, the documents listed in para 4 of Schedule B were, almost without exception, copies created for the dominant purpose of the present litigation. The copies concerned are not just documents evidencing a transaction. Each copy was brought into existence for a different reason than evidencing a transaction. Other documents were created for the dominant purpose of the provision of legal advice. On the facts as deposed to, a foundation for a privilege claim known to law is made out. Mr Joyce has not made out any basis for questioning that factual foundation or, for that matter, the conclusiveness of the affidavit verifying the list of documents.

105               This aspect of Mr Joyce’s application also fails.

106               Mr Joyce did not press the request for the production of the documents listed in para 5 of Schedule B to his notice of motion. I understood this to be because his solicitors and those of the Sunland parties were further discussing that subject. I therefore stand over this part of the notice of motion for further consideration, if need be, at the next directions hearing.

Prudentia’s application

Feasibility Documents

107               The Sunland parties have discovered certain feasibility studies in relation to Plot D17. Prudentia now seeks the “source” documents used to prepare these studies. It is submitted on behalf of Prudentia that these are relevant because they “go to [the Sunland parties’] pleaded state of mind in relation to the alleged misrepresentations and are thereby relevant to the issue of causation”. Recalling the narrowing by O 15 r 2(3) of the basis for giving discovery, I fail to see any relevant connection. Indeed, having regard to that test, it may very well be that the Sunland parties went further than obliged when discovering the feasibility studies. The request made of the Sunland parties looks to me a request which goes beyond even the former “train of inquiry” test and has the flavour of a fishing expedition. Prudentia have not established any basis for questioning the affidavit verifying the list. This aspect of Prudentia’s application fails.

Peacock Investments LLC

108               Prudentia has sought from the Sunland parties’, discovery of documents relating to their negotiations with Peacock Investments LLC with respect to plot D17, in November 2007. These occurred after the transaction in question with Dubai Waterfront and Hanley had been completed.

109               Prudentia has pleaded in para 15.5 of its defence that the business model of the Sunland parties at the time did not, inter alia, envisage its purchasing the land. This allegation has been denied. It does not follow from this that the requested documents must be discovered. The comments which I have made in respect of the “feasibility documents” apply equally to the Peacock Investments documents.

Project Status Reports

110               Prudentia has sought discovery of “all ‘project status reports’ prepared by or for [either of the Sunland parties] relevant to plot D17”. The assumption seems to be that discovery ought to be made of any document referring to plot D17. This is a false assumption. For the same reasons as given in respect of the “feasibility documents”, this aspect of the Prudentia application fails.

Other documents relating to transactions concerning plot D17

111               Prudentia has also sought discovery of documents relating to any transaction which occurred in relation to plot D17 between that in issue in these proceedings and a request made to Dubai Waterfront in March 2010 for payments in respect of plot D17 to be consolidated with those already made for plot D5B. Reference is also made by Prudentia to documents relating to an announcement in November 2008 of a joint venture with EWM Group. This, too, with respect, is a request grounded upon an uncritical appreciation of the narrowed basis for discovery under O 15 r 2(3). The comments which I have made in respect of the “feasibility documents” have equal application here, too.

112               It follows that Prudentia’s application should be dismissed.

Sunland parties’ application against Mr Joyce

Khaleej Times Article & Ownership of Land

113               This aspect of the discovery controversy is derived from an article published in the “Khaleej Times” on 16 September 2009 in which reference is made to information given to the court in Dubai by a Mr Salem Sha’ali [a like report apparently appeared in the “Sydney Morning Herald” on 20 September 2009). Mr Sha’ali is Mr Joyce’s lawyer in Dubai. The Sunland parties submit and it seems to me correct that, questions of privilege aside, relevant documents in Mr Sha’ali’s possession constitute documents in Mr Joyce’s possession, power or control for the purposes of his discovery obligation in this case.

114               According to the newspaper report, Mr Sha’ali informed the court in Dubai:

(a)        “the land booking and Prudentia’s purchase from Nakheel was authentic”;

(b)        “Fifteen days after the beginning of the investigation we presented the Public Prosecution with a portfolio containing plenty of documents … We gave them what proves there was no fraud.” [Emphasis added]

115               Understandably, the reference in the article to a “portfolio” of documents intrigued those advising the Sunland parties and prompted a request for discovery of the same. The response given on behalf of Mr Joyce is that the issues in a case are defined by the pleadings, not newspaper articles. That is true but the point of the reference by the Sunland parties solicitors to the article was not as a substitute for the pleadings but rather that it suggested that there existed in Mr Joyce’s possession, custody or control a class of document which was relevant to an issue on the pleadings and in respect of which such privilege as might otherwise have existed had been waived.

116               The real question is whether the affidavit verifying Mr Joyce’s list of discovered documents should continue to be regarded as conclusive or whether a case has been made out by the Sunland parties for his being required to give particular discovery pursuant to O 15 r 8. In terms of that rule I am satisfied that it appears from the newspaper report that there are grounds for a belief that the portfolio of documents at least may have been in Mr Joyce’s possession, custody or power. I accept that it may be that a document in the “portfolio” may already also be in the discovery of one or more of the respondent parties. That is not the same as the discrete identification of what constituted the “portfolio”. It may further be that Mr Sha’ali retained no file copy of the “portfolio” or a list of what it contained, but that is to anticipate. Such privilege as reposed in the “portfolio” (assuming the newspaper article to be accurate as to the existence of such a bundle of documents) has been waived by Mr Joyce upon its tender to the court in Dubai.

117               I therefore propose to order that Mr Joyce:

(a)        file an affidavit stating whether the documents comprising “the portfolio” referred to in the article in the “Khaleej Times” of 16 September 2009 are or have been in his possession,custody or control and, if it has been but is not then in his possession, custody or control, when he parted with it and what has become of it; and

(b)        to serve the affidavit on the Sunland parties.

Prudentia’s negotiations with Dubai Waterfront

118               It is common ground as between the Sunland parties and Mr Joyce that documents falling within this class are discoverable. The question is whether there exists a basis for questioning a prima facie conclusive affidavit verifying Mr Joyce’s discovery? It is said that there is a dearth of documents in this category in the existing discovery of Mr Joyce, that assurances have been sought from his solicitors that he has no further documents in this category and that no such assurances have been forthcoming. There was no need though for Mr Joyce to do anything other than point to the affidavit verifying the list. This he has done. The absence of some further assurance is superfluous and does not provide a basis for the questioning of the prima facie conclusive quality of that affidavit. This aspect of the Sunland parties’ application fails.

Dubai Land Department Ownership of Land Information

119               Paragraph 8.1 of Mr Joyce’s defence alleges that, since 1 August 2007, the public could obtain information from the Dubai Land Department about the ownership of land. The Sunland parties use this in addition to an absence of assurance to ground a submission that a basis exists for questioning his affidavit verifying his list. It is submitted that he must have had some basis for making the allegation. Assuming this to be so, it does not follow that the basis for the allegation was a document in his possession, custody or power. It may just be a matter of law or notoriety in Dubai. I accept that the Sunland parties need not prove to demonstration a basis for questioning the affidavit but what they put forward does not rise beyond the level of speculation and cynicism. That is not a basis for going behind such an affidavit. This aspect of their application also fails.

“Russian Buyers”

120               The basis for the complaint concerning this category of document does not rise beyond the absence of confirmation that Mr Joyce has no such documents in his possession, custody or power. That is no basis for questioning an affidavit verifying a list.

Payment of money to Mr Joyce

121               I have dealt with this subject above in relation to the inadequacy of the discovery of Prudentia, Hanley and Mr Reed.

Mr Joyce’s Gmail account

122               Mr Joyce accepts that he is required to make discovery of relevant emails sent or received from or by his Gmail account. The Sunland parties point out that Mr Joyce’s existing discovery does not embrace Gmail emails that have been sent by other respondents; nor does it deal with such emails no longer in his possession, custody or power. This, to me does not provide a basis for questioning his affidavits verifying the lists of documents he has prepared.

Telephone accounts

123               I have dealt with this subject in relation to the discovery of Prudentia, Hanley and Mr Reed, as I have with the SMS message issue. There is a particular importance about telephonic or electronic messages in relation to the issue of jurisdiction in this case. The Sunland parties make the point that Mr Joyce’s answer that he no longer works for Dubai Waterfront is not a sufficient answer. It does not follow from this, they submit, that the records of his private telephone are not in his power to obtain, even though he may no longer have them in his possession.

124               There is a reference in document PRU.001.005.0806 which suggests Mr Reed exchanged SMS messages with Mr Joyce. A file note made by Mr Reed of a meeting (document PRU.004.003.0055) notes what appears to be an Australian mobile telephone number for Mr Joyce. These do provide, in my opinion, a basis for questioning the sufficiency of the affidavits verifying the lists which Mr Joyce has furnished but only in relation to SMS messages and that mobile telephone number. Beyond those, his affidavits are entitled to retain their prima facie conclusive status. I do though propose to make an order under O 15 r 8 for the filing and service on the Sunland parties in respect of the two categories of document indicated. In this paragraph

File Notes of Conversations or Meetings/Incomplete or missing documents/Native email files and “clean versions of documents

125               As to these categories of document, I have considered the initial complaint concerning discovery as voiced on behalf of the Sunland parties by their solicitors in the discovery complaint letter, the response given to that complaint by Mr Joyce’s solicitors in their letter of 24 May 2010 and the reply to that letter made on behalf of the Sunland parties by their solicitors’ letter of 28 May 2010.

126               The position taken on behalf of Mr Joyce in respect of these categories was curtly expressed. It was to point to the conclusiveness of a list of documents. Much lies behind such a response. It is not one lightly to be given or questioned. Nor should a request questioning a verified list be lightly made. In particular, it is very important that matters of condescension, self importance, perceived infallibility or professional pride do not intrude into such correspondence. In effect, a response to such a request is a statement by one legal practitioner to another that, paying due regard to the question raised with respect to the sufficiency of the list of documents and to the responsibilities that fall on a legal practitioner in terms of bringing home to a client the nature of the discovery obligation and approaching the subject afresh the position, on instructions, remains as per the list of documents verified by affidavit. For a legal practitioner knowingly to make a false statement in such a letter would be to commit serious professional misconduct. I regard all of these considerations as unstated premises in the response given on behalf of Mr Joyce. In the face of this type of considered response an assertion, for example, that Mr Joyce “should have” in his possession, custody or power, five native electronic versions of the email which is document PRU.004.001,0073 is no basis for questioning the sufficiency of a list of documents verified by affidavit. The same applies in respect of alleged file notes of conversations and incomplete or missing documents.

127               A discovery obligation is, of course, a continuing one. Thus, if it transpires that documents of the kind requested on behalf of the Sunland parties do later come within his possession, custody or power Mr Joyce would be duty bound to discover them, notwithstanding his earlier verification of a list as complete. For the present though, no basis is shown for questioning the sufficiency of his verified lists of documents.

Affidavit relating to Mr Joyce’s self-incrimination privilege claim

128               I have already made reference to relevant law and practice on this subject when dealing with the application made by the Sunland parties in respect of Mr Reed.

129               Mr Joyce makes reference to the Dubai criminal proceeding in his initial list of documents as well as in his supplementary list. The reference to this proceeding in his original list is cast in a way which grounds a separately made claim for client legal privilege in respect of particular documents. The original list merely refers to self incrimination privilege while the supplementary list states that he claims “privilege from production on the basis of the privilege against self incrimination”. As with Mr Reed, Mr Joyce did not seek to be relieved from having to give discovery at all in the present proceeding.

130               Complaint was made by the Sunland parties not only about an absence of an identified basis for the self incrimination privilege claim but also about the way in which particular documents which were the subject of this privilege claim were identified. Such documents are referred to in the list by reference to a document discovery number and a date but not with any more precise description of the document. This method of identifying the documents conforms, in my opinion, with that regarded by the Queensland Court of Appeal as sufficient in Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 2) [1999] 1 Qd R 163. This method of identification is sufficient to facilitate the production of a document if ordered by the Court. To require any greater description of the documents concerned may be to subvert the privilege. This aspect of the complaint made by the Sunland parties fails.

131               Where the complaint made has substance is in respect of the articulation of the basis of the claim by Mr Joyce for self incrimination privilege and for like reasons to those which I have given in respect of the application relating to Mr Reed. I therefore propose to make a like order in this regard in respect of the filing of a further affidavit by Mr Joyce to that proposed by me in respect of Mr Reed.

Documents no longer in Mr Joyce’s possession, custody or control

132               The complaint made by the Sunland parties is twofold. It is alleged that Mr Joyce’s lists of documents fail to provide an adequate description of them. It is further alleged that Mr Joyce should have made inquiries of the Dubai police to obtain copies of what was seized from him.

133               Mr Joyce has given a fuller description in his supplementary list of classes of document no longer in his possession, custody or control by virtue of being seized or the computer containing them being seized by either the Dubai Police, the Audit Department of the Government of Dubai or, as the case may be, the Dubai Public Prosecution. The descriptions do have a generic quality about them.

134               For Mr Joyce reference is made to the prima facie conclusive nature of a verified list of documents. It is also submitted that the Sunland parties are, in effect, seeking to interrogate him as to the extent of his discovery. There is, in my opinion, substance in each of these submissions. Further and in any event, it may be that to require Mr Joyce to give any greater precision as to a particular association he once had with a particular document may be to tend to incriminate him. Even if I otherwise considered this aspect of the complaint made by the Sunland parties to have merit I should not be disposed to impose any requirement for greater precision of description on him without giving him and, for that matter, the Sunland parties an opportunity to be heard on that subject, including, in the case of Mr Joyce, an opportunity for detailing the basis for any such privilege claim.

135               As for imputing an obligation on the part of Mr Joyce to seek copies of documents from the Dubai authorities, it is one thing to regard records of a person’s account with a bank or public utility as being in that person’s “control” and quite another to regard documents seized by an investigatory agency as remaining in that person’s “control”. The position may be different if by law a person had a right to a copy of documents which were seized but I have no evidence of any such law of Dubai.

136               Further and in any event, it is not impossible to conceive how there may be a tendency to incriminate in Mr Joyce making a request for a copy. In that regard, too, I would not, even if this aspect of the complaint otherwise did have merit (and it does not), be disposed to impose any such requirement on Mr Joyce without affording the parties a further opportunity to be heard.

137               This particular complaint by the Sunland parties fails.

Disposition of applications

138               I propose to direct the parties to bring in short minutes of orders to give effect to these reasons of judgment. It proved both necessary and convenient in the course of the hearing of these applications to make a costs order in respect of the adjournment of their hearing. I do not propose to disturb that order. Save for that, it will be necessary for the parties to assimilate lengthy reasons for judgment to ascertain the degree of forensic success they have enjoyed in respect of the various applications. I therefore also propose to reserve until the next directions hearing on 19 August 2010 consideration of all other questions of costs in respect of the applications.

Associate:

Dated:         12 August 2010