Federal Court of Australia

DBCT Management Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd and Geosea Australia Pty Ltd Joint Venture [2021] FCA 512

ORDERS

THE COURT ORDERS THAT:

1.    Within 7 days of today, the parties file and serve a minute of proposed orders to give effect to these reasons for judgment and to provide for costs, such minute to be supported, if necessary, by brief submissions.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    By a subpoena served on Ashurst Australia (Ashurst) on 6 November 2020 (Ashurst Subpoena), DBCT Management Pty Ltd (DBCT Management) and Dalrymple Bay Coal Terminal Pty Ltd (DBCT) (the applicants) sought production of:

(1)    the HPX3 ICAM Investigation Report dated 4 July 2014 (the Report); and

(2)    all documents referred [to] in the Report.

2    By a subpoena served on BM Alliance Coal Operations Pty Ltd (BMA) on 3 August 2020 (BMA Subpoena), the applicants had also sought production of 15 categories of documents in connection with the incident the subject of these proceedings.

3    BMA claims legal professional privilege over the Report in response to the Ashurst Subpoena, and in response to the BMA Subpoena, to the extent the Report is caught by that subpoena.

4    The Report was issued on 4 July 2014 and contained the following attachments:

(1)    Timeline 1 and 2 (Attachment 1);

(2)    ICAM Analysis (Attachment 2);

(3)    Aurecon Memorandum – 26.05.2014 (Attachment 3);

(4)    Bullivants Inspection Report – 10.04.2014 (Attachment 4);

(5)    PEEPO (‘People Environment Equipment Procedures Organisation’ Attachment 5).

5    The applicants oppose the claims for legal professional privilege.

6    The second respondent (Work Boats) also opposes the claims for privilege. If the privilege claims are rejected, Work Boats seeks leave to inspect and copy those documents, which it submitted, it apprehended will be of central relevance to the issues in the proceeding. It is convenient to refer to the applicants and the second respondent collectively as the opposing parties in the context of these reasons.

7    The first respondent and the third respondent were represented at the hearing. Neither the first respondent nor the third respondent filed written submissions in relation to claims for legal professional privilege or sought to make oral submissions at the hearing.

8    For the reasons given below, BMA has established that the Report (including its attachments) is the subject of legal professional privilege.

Factual context

9    BMA is jointly owned by BHP Metcoal Holdings Pty Ltd and Mitsubishi Development Pty Ltd. The applicants commenced these proceedings on 27 January 2017 against BMA and McConnell Dowell Constructors (Australia) Pty Ltd & GeoSea Australia Pty Ltd Joint Venture (McConnell). On 17 July 2017, the proceedings were discontinued against BMA. The applicants subsequently joined two other respondents.

10    The proceedings relate to an incident at the Dalrymple Bay Coal Terminal (Dalrymple Terminal), which is immediately north of the Hay Point Coal Terminal (Hay Point Terminal) in Queensland. The applicants are the sub-lessee and operator of the Dalrymple Terminal. BMA is the operator of the Hay Point Terminal.

11    BMA engaged Bechtel Australia Pty Ltd (Bechtel) as its project manager for an expansion of the Hay Point Terminal. McConnell was a contractor to BMA, and supplied a number of barges for use in the expansion project. The applicants allege the barges were moored south of the Hay Point Terminal and that during a cyclone on 30-31 January 2014, in the early hours of 31 January 2014, one of the barges broke from its mooring and collided with the wharf at the Dalrymple Terminal, damaging the wharf (the Incident).

12    The proceeding concerns damage to Berths 3 and 4 of the Dalrymple Terminal.

13    The applicants claim that damage was caused by the respondents’ negligence. The Incident allegedly occurred because of the breaking of a rope known as a “pigtail”. The claims are brought against the barge charterer/operator, persons responsible for maintaining the mooring, persons responsible for attaching the barge to the mooring and the designer of the mooring system.

14    The applicants contend that a key issue in dispute in the proceeding concerns the use and condition of the pigtail which was used as part of a cyclone mooring system that failed during the Incident. The applicants contend that the barge, which was attached to the failed pigtail, drifted in the cyclone conditions and caused significant damage to the applicants’ wharfs. The applicants have filed expert evidence on the cause of the barge breaking free of its moorings, including on the condition and use of the pigtail. None of the parties to the proceeding had access to the failed pigtail following the Incident, and the experts have relied on photos or descriptions from Maritime Safety Queensland (MSQ) or third party surveyors. The applicants contended that following the Incident, the pigtail was in the possession of BMA’s investigators. The applicant submitted that BMA appear to have been the only party which conducted an investigation into the Incident and holds the records which are likely to shed further light on the events of that day. The applicants contended that as they had no involvement with the HPX3 project, which was managed by BMA, or the cyclone moorings used as part of that project, they have had little means of identifying the cause of the Incident apart from information they have been able to obtain from other parties, including the subpoenaed parties.

Relevant history of the proceedings

15    The applicants first issued a subpoena to BMA in relation to the Incident in July 2018 (2018 Subpoena), which sought production of six categories of documents. The first category was as follows:

Copies of all documents relating to the incident which occurred on 30 and 31 January 2014 involving the collision of a barge, known as “ASL100” or “DB100”, with the wharf at Dalrymple Bay Coal Terminal in Queensland (the Incident), including but not limited to any internal or external correspondence, file notes, investigation reports, photographs, diagrams or drawing regarding or arising out of any investigation into the incident.

16    By letter dated 14 December 2018, BMA’s solicitors (HFW) responded to the 2018 Subpoena, stating, inter alia, that: (a) an ICAM investigation was initiated by BHP Billiton Legal on 31 January 2014; (b) the investigation was managed by BHP Billiton Legal and Ashurst; and (c) that privilege was claimed in the Report and all documents, communications and things relating to the investigation. The letter also attached an email from Amanda Holding on 31 January 2014 commissioning the investigation, along with a copy of the front page of the Report.

17    In June 2919, after receipt of that letter, the applicants’ solicitors (WK) advised HFW that the 2018 Subpoena was no longer pressed.

18    Over a year later, the applicants served the BMA Subpoena by email on 3 August 2020, seeking 15 categories of documents. Over the following months, the parties engaged in correspondence about the process and cost of production and review of the documents sought in the BMA Subpoena. On 5 November 2020, HFW notified WK that the searches of BMA’s email archives in response to the BMA Subpoena had produced over 63,000 email hits. The following day, the Ashurst Subpoena was served. WK wrote to HFW on 10 November 2020, stating inter alia:

The purpose of the Ashurst Subpoena is to expedite production of the ICAM Report and its supporting documents (likely subject to your client’s claim for privilege) so that the parties to the proceedings can dispute the claim for privilege over some or all of those documents.

As you will no doubt appreciate, our clients are unlikely to agree to the costs of PWC and HFW extracting and reviewing over 63,000 documents in circumstances where BMA claims privilege over every document. Accordingly, we propose that the Ashurst Subpoena and the BMA Subpoena should run together as we anticipate that the dispute over the claim for privilege by BMA will arise in respective of either (or both) subpoena.

19    On 15 December 2020, HFW sent an objection letter to the Court on behalf of BMA and Ashurst outlining the basis on which BMA claims privilege over the ICAM Documents. On 21 December 2020, HFW requested that the applicants indicate the basis on which they challenge BMA’s privilege claim. The substance of WK’s response on 22 December 2020 is that the Report was obtained for the dominant purpose of assessing the adequacy of BMA’s systems and procedures.

Material relied on

20    BMA read the affidavits of Ben Hutchinson sworn on 25 January 2021 (First Hutchinson Affidavit) and 3 February 2021 (Second Hutchinson Affidavit) in support of its opposition to the uplift or inspection of the Report, the latter addressing issues in reply to those opposing the claim. Since June 2020 Mr Hutchison has been legal counsel of BHP Group Limited (BHP Legal) and is responsible for the conduct of this matter on behalf of BMA. Subject to the rulings on objections made on the day of the hearing, and one paragraph, being paragraph [25] of the First Hutchinson Affidavit which was not read, those affidavits were admitted. The applicants initially objected to the admissibility of the redacted BHP Services Agreement, which was annexed to the Second Hutchinson Affidavit, however once the unredacted document was produced, with a suppression order over the confidential information, no further submission was advanced either to its admissibility or that it did not establish what BMA contended. Indeed, no submission was addressed to the remainder of the agreement, with the limited exception of a submission by Work Boats in relation to another aspect of the document, on which it submitted that whatever policies BHP had in place, including health, safety and environmental investigations, apply to BMA. Mr Hutchinson was briefly cross-examined by counsel for the applicants, who sought leave to do so on limited topics, which was granted. However, Mr Hutchinson was not challenged as to the basis of the redactions in the balance of the material annexed to his affidavits.

21    The applicants read the affidavit of Thomas Cavanagh sworn 29 January 2021 (Cavanagh Affidavit). Mr Cavanagh was not cross-examined.

22    Work Boats read the affidavit of Kendall Maree Messer affirmed on 29 January 2021 (Messer Affidavit). Ms Messer was not cross-examined.

Evidentiary basis of the claim

23    In essence, BMA described its evidentiary case for privilege as follows.

24    On the morning of 31 January 2014, BMA instructed the legal department of BHP Legal to advise it in relation to potential litigation arising from the Incident. Amanda Holding, a manager in BHP Legal, acting as BMA’s in-house counsel pursuant to a services agreement, instructed Shane Bosma of Ashurst to act for BMA in relation to BMA’s potential liability for the damage caused by the Incident.

25    At the time, Ms Holding and Sharron Anderson shared the role of Manager - Group Legal at BHP Legal, and both Ms Holding and Ms Anderson left BHP Legal in January 2015. The service agreement by which Mr Bosma was retained by Ms Holding is the Relationship Agreement for Provision of Legal Services between BHP Billiton Limited and Blake Dawson, signed on 10 February 2012 and 13 February 2012 respectively, by BHP Billiton Ltd and Blake Dawson. The legal services in that Agreement are dealt with in cl 1.3 which refers, inter alia, to giving legal advice on claims and disputes.

26    An email at 11.59am on 31 January 2014 from Mr Bosma from Ashurst to Ms Holding, although largely redacted, gives rise to the inference that there had been a conversation by Ms Holding to Mr Bosma earlier that day, that it related to the Incident, that Ms Holding was seeking to obtain legal advice, during which some of the facts of the Incident were provided, that some advice was provided by Mr Bosma and that he indicated he was available to assist.

27    There is a series of heavily redacted emails between Mr Bosma and Ms Holding from about 5.44pm on 31 January 2014. BMA submitted that those emails establish that Ms Holding emailed Mr Bosma of Ashurst seeking advice in relation to the Incident.

28    Ms Holding sent an email at 6.18pm on 31 January 2014 to three employees of BHP, copied to Mr Bosma, to commission an investigation into the circumstances of the Incident. The Report is the final report of that investigation.

29    Ms Holding’s email included the following:

There is a risk that legal proceedings could be commenced involving BMA as a result of this incident and BMA is taking legal advice in relation to the incident.

To that end, I confirm that investigations are required by BMA regarding the circumstances of the incident and the damage and losses caused as a result of the incident. I request that you adopt the ICAM method in carrying out the investigation and report the outcome to Sharron Anderson and myself.

30    The email set out instructions as to the preparation of the Report including that it is to be carried out on a confidential basis, and that the Report be prepared in draft before circulating it (including that it being marked as confidential). The email also set out a protocol as to the conduct of the investigation and the ensuing Report which appear to be directed to maintaining its confidentiality, including “[m]ark documents as they are created which form part of the investigations or the preparations for the potential legal proceedings ‘Prepared for the purpose of legal advice and potential legal proceedings –Subject to legal professional proceedings’”.

31    Thereafter, from 1 February 2014 there are a series of emails, which in context, appear to relate to the preparation of the Report including multiple drafts of the Report, which passed between the ICAM investigation team, BHP Legal and Ashurst, with Ashurst having direct involvement in the drafting. Although redacted, the emails by subject line specifically relate to the “cyclone incident”, some specifically including references to the report (including to the draft report, further revisions, discussions to final report, notations on the report and final report etc).

32    In that context, the lead of the investigation team Tony Baker, subsequently informed Mr Hutchinson that the drafting of the Report included at all times Ms Holding and Ms Anderson; at all times during the preparation of the Report, he followed the confidentiality protocol set out in Ms Holding’s 31 January 2014 email; and that Ms Holding and Ms Anderson reviewed and approved the final version of the Report. At all relevant times Mr Baker understood that the Report was subject to a claim of legal privilege. Ashurst were involved in instructing experts, who were retained for the purposes of preparing the Report.

33    In the morning of 31 January 2014, an employee in BHP Billiton’s Coal Division notified BHP’s insurance broker about the Incident, requesting that the broker notify the relevant insurers. Stein’s agent then requested to “lock in” HFW for legal services for them if it should eventuate into a liability claim.

34    On 1 February 2014, BHP Legal wrote to Bechtel, noting that it was providing legal advice to BHP and BMA “in anticipation of litigation being commenced against one or more of them” in relation to the Incident, and that Bechtel had engaged its internal lawyers in anticipation of litigation being commenced against it. The letter stated:

BMA and Bechtel have a joint and common interest in establishing the facts surrounding the Incident and in defending any litigation brought by a regulatory authority or other third party against them in connection with the Incident.

35    The letter also noted that various Bechtel personnel had been invited to participate in the investigation and set out a protocol for the sharing of information and the control of documents to ensure that common interest privilege in relation to the Incident could be maintained.

36    On 4 February 2014, BHP Legal wrote to BMA’s liability insurer Stein Insurance Company Limited (Stein) in similar terms, noting that it was providing legal advice to BHP and BMA “in anticipation of litigation being commenced against one or more of them” in relation to the Incident. BHP Legal noted that BMA had secured insurance from Stein, who would obtain advice from HFW, and went on to state:

BMA and Stein have a joint and common interest in establishing the facts surrounding the Incident and in defending any litigation brought by a regulatory authority or other third party against BMA in connection with the Incident.

37    The letter again set out a protocol for the sharing of information and control of documents to ensure that common interest privilege in relation to the Incident could be maintained. By its response on 5 February 2014, Stein confirmed its agreement to those arrangements.

38    On 7 February 2014, Ashurst wrote to Aurecon Australia Pty Ltd (Aurecon) to engage it to provide a report as to the design of the cyclone moorings used in the expansion project.

39    On 20 February 2014, BHP Legal wrote to Stein, proposing that Francis Burgess, a solicitor from HFW, also participate in the investigation team.

40    On 21 March 2014, Ashurst wrote to Bullivants Pty Ltd (Bullivants) to engage it to provide a report on the physical condition of certain mooring ropes. The confidentiality of the process is made plain in the letters of instruction with the reports being described as being prepared to be used for the purpose of obtaining legal advice or for use in legal proceedings. The reports prepared by Aurecon and Bullivants were provided, and are attachment 3 and 4 respectively to the Report. Attachments 1, 2 and 5 were each prepared by the investigation team for the sole purpose of the investigation.

41    The front page of the Report states inter alia that it “has been prepared at the request of Group Legal (BHP Billiton Limited) and Ashurst Australia and in the subject of legal professional privilege”.

Submissions

BMA

42    In that context BMA submitted that the evidence established that the Report is privileged because it was commissioned for the dominant purpose of obtaining legal advice in relation to litigation that was anticipated to result from the Incident. BMA submitted that the dominant purpose can be ascertained from the following indicia.

43    First, the email sent on the day of the Incident by BMA’s in-house counsel commissioning the investigation. The investigation was commissioned by BHP Legal acting as BMA’s in-house counsel, not by BMA management or any other division of BHP, in urgent circumstances shortly after the Incident. Ms Holding stated that BMA was “taking legal advice in relation to the incident” and said that “[t]o that end”, investigations regarding the circumstances of the Incident and the damage and loss caused were required. It was submitted that Ms Holding’s email is the best contemporaneous evidence of the purpose for which the investigation was commissioned.

44    Second, the involvement of Ashurst from the outset of the investigation. Mr Bosma was copied into Ms Holding’s email commissioning the investigation. By the time that email was sent, Ashurst had already been retained to advise BMA in relation to the Incident and the Report (which is corroborated by Ms Holding’s statement in the email that BMA was taking legal advice). Ashurst was involved in the drafting of the Report and commissioned two additional reports for use in connection with the Report. The volume of emails exchanged between BHP Legal and Ashurst between the occurrence of the Incident and the completion of the Report demonstrate the substantive role that Ashurst played in advising BMA, and that the involvement of BHP Legal and Ashurst was a necessary and legitimate part of the process: citing Kirby v Centro Properties Ltd (No 2) [2012] FCA 70; (2012) 87 ACSR 229 at [92] (Kirby v Centro Properties). It contended that where in-house counsel communicate with external lawyers, it may be assumed that legal advice is being sought in the absence of any contrary indication: citing Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 at [23] and [27] (Kennedy v Wallace).

45    Third, Stein was notified of the Incident on the day, only hours after it occurred. Subsequently, a common interest privilege agreement was entered into between BMA and Stein in relation to the investigation, which referred to Stein obtaining legal advice from HFW in anticipation of litigation being commenced and the common interest between BMA and Stein in establishing the facts surrounding the Incident in defending any litigation. The subsequent inclusion of a solicitor from HFW in the investigation team is said to be compelling evidence that legal advice in connection with anticipated litigation was the intended use of the Report, and the use which accounted for the Report being brought into existence.

46    BMA contended that in light of those indicia, it is clear that the dominant purpose of the Report was for use in the provision of legal advice by BHP Legal and Ashurst to BMA, and HFW to Stein, about the anticipated litigation. BMA submitted that it “would disclose the circumstances of the incident, on which the advice would be based”: citing Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332 at [15] (Mitsubishi).

47    BMA further contended that it is also clear that litigation was reasonably contemplated at the time the Report was commissioned. Referring to Mitsubishi at [22], it submitted that the collision of the barge into the wharf at the Dalrymple Terminal and the damage caused by that collision was an event which, in common experience, was very likely to lead to litigation against BMA and/or the first respondent to recover the cost of repairing the wharf. It was submitted that the immediacy with which Ashurst was retained, the investigation was commissioned and Stein was notified, all said to indicate that litigation was expected: citing Mitsubishi at [22]. It was submitted that each of those steps would not have been taken in the manner they were, if BMA and BHP Legal did not consider that there was a real risk that legal proceedings would be commenced. Objectively assessed, it was submitted that, there was “a real prospect of litigation, as distinct from a mere possibility”: citing Mitsubishi at [19].

48    BMA took issue with the applicants’ assertion that “one of the main purposes” of the Report was to determine whether “systems or procedures should be changed to prevent a recurrence of the Incident” and submitted that it is speculative, without proper foundation and should be rejected. It was submitted that the events, and the haste with which they occurred, could not be explained by that explanation. BMA also took issue with the applicants’ suggestion that BHP Legal and Ashurst were interposed as a “colourable device” to cloak a routine investigation of the Incident conducted for safety improvement purposes, and that the contemporaneous documents and the evidence of Mr Hutchinson do not support that characterisation.

49    BMA submitted that although BHP Legal’s letters of 1 and 4 February 2014 to Bechtel and Stein dealing with common interest privilege state that nothing in them is intended to prevent BMA from using the Report “for the additional purpose of assisting with a safety and environmental improvement process”, that is unremarkable and provides no basis to conclude that safety was the dominant purpose of the investigation. It submitted it was, at most, an ancillary use to which the Report might be put and does not rise to a purpose equal to or dominant over the litigious purpose in the commissioning of the investigation. BMA relied on observations of Bromberg J in Kirby v Centro Properties at [88], that “[t]he existence of a posterior operational purpose of that kind is of no moment where the client’s purpose in engaging its lawyer is to seek legal advice and assistance”. BMA also relied on the observations of Batt JA stated in Mitsubishi at [15], that “it is significant that the reports were commissioned by the solicitors and not by their nominal client. Public safety and quality control were unlikely to be of more than peripheral, if any, concern to the solicitors, certainly when their instructions were as they had stated them to be”.

50    BMA submitted that the evidence establishes that legal services were the only services provided by BHP Legal to BMA, and that those services were provided under a formal Services Agreement. In those circumstances, BMA submitted that the Court can be satisfied that BHP Legal was sufficiently independent from BMA so as to enable privilege to attach: citing Seven Network Ltd v News Ltd [2005] FCA 1551; (2005) 225 ALR 672 at [15].

The applicants

51    The applicants submitted that the applicable legal principles are not in dispute and rather directed their challenge to the sufficiency of the evidence relied on by BMA. The applicants submitted that Mr Hutchinson was not involved in commissioning the Report, establishing the ICAM procedure or the ICAM investigation in 2014; his role and basis for the assertions of privilege are not explained; and that the self-serving characterisation and conclusionary assertions of a dominant purpose in the First and Second Hutchinson affidavits are insufficient: citing National Crime Authority v S (1991) 29 FCR 203 at 211 (NCA v S), followed in Kennedy v Wallace at [13]. The applicants submitted that no evidence had been served by the subpoenaed party from those involved with the decision to commission the Report and nor is it suggested that those involved are no longer available.

52    The applicants submitted that as certain documentary exhibits to the First Hutchinson Affidavit are significantly redacted reliance on them was unfair as the inferences which BMA seeks to draw are unable to be tested. The applicants submitted that without knowing the content of the redacted documents they could not establish what BMA contends can be inferred from them. It further submitted that as BMA chose to provide only redacted versions of certain documents an inference favourable to BMA should not be drawn. I note, as recorded above, that in relation to the redacted BHP Service Agreement, an unredacted copy was provided to the Court. During the oral argument the applicants accepted that the issue of unfairness was capable of being dealt with as an issue of weight.

53    The applicants submitted that the high point of the privilege claim is “the precedent email” from Ms Holding to the investigators dated 31 January 2014 and the involvement of Ashurst, and later HFW, in some aspects of the investigation or report and that neither of these establish a dominant purpose of the Report being for the provision of legal advice or of legal services in anticipation of litigation. It was submitted that BMA’s evidence does not explain the investigation or the ICAM procedure it adopted.

54    The applicants submitted that even if legal advice or the provision of legal services in anticipation of litigation can be shown to be a purpose, the surrounding circumstances strongly suggest that ascertaining the cause of the failure, with a view to preventing safety incidents in future cyclones, was a significant and likely dominant purpose of the Report.

55    First, by its very nature, the purpose of any ICAM investigation and report is to determine the cause of an incident and advise on measures to prevent a future safety incident. It was submitted that the Report’s authors were required to consider and advise on how cyclone moorings could be improved and to avoid a further failure which is consistent with the systems BHP appear to have had in place for investigating incidents. Contrary to BMA’s submission that the ICAM method was simply a methodology, the applicants contended that the ICAM method “is not merely a means of doing the investigation but also an integral part of the report when one reads the description of how the report should be prepared”.

56    Second, it was submitted that the investigation was conducted by non-lawyers with a technical background which, it was contended, makes it likely that the investigation’s focus would be the improving of the cyclone mooring for the balance of the port expansion, and not the attributing of blame or determining liability.

57    Third, MSQ was involved in the investigation and the testing of the pigtail, communicating with members of the ICAM team and obtaining a number of documents from the ICAM team. BMA agreed with MSQ to undertake a “full and detailed investigation” and provide MSQ with a copy of the report. MSQ regularly sought a copy of that report. MSQ also reported that it had been advised that the report had been “submitted to the management of Hay Point Coal Terminal Services this week for approval prior to it being released”. It was submitted that this is not consistent with the Report’s dominant purpose being for the provision of legal advice or legal services in anticipation of litigation.

58    Fourth, the first respondent has consistently advised that the only person who has conducted an investigation and testing of the pigtail and failed mooring component was the subpoenaed party. It can reasonably be inferred, particularly in the absence of an explanation of the investigation, that the avoidance of future incidents was the focus of the investigation.

59    Fifth, emails produced between Mr Baker, from the ICAM team, and Mr Bryant from Bechtel, who was appointed to assist with the ICAM investigation, indicate that the ICAM investigation was not for any dominant purpose associated with legal advice or anticipated legal proceedings.

60    Sixth during the ICAM investigation and after the date of the Report, changes were made to the cyclone mooring systems, consistent with a dominant purpose of the investigation and Report being to investigate and recommend any changes to prevent recurrences and advance safety.

61    The applicants submitted that those surrounding circumstances suggest that Ms Holding’s email, and the involvement of other lawyers, were merely attempts to clothe what was to be, in accordance with BHP’s own procedures, a predominately safety-focussed investigation with apparent privilege. The applicants submitted that as the surrounding circumstances at least raise doubt as to the unsupported and conclusory assertion of a privileged dominant purpose, “the Court should, at the very least, review the documents and form a view of the dominant purpose”: citing Grant v Downs (1976) 135 CLR 674 at 688-689 (Grant v Downs). It was submitted that the Court should not be reticent in exercising its power to review the document: citing Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796 at [36].

62    In the alternative, in the event the Court was to find that privilege does attach to the Report, it was submitted that it does not follow that the attachments were created for the same purpose. The applicants’ submitted that the Aurecon Engineering Memorandum (attachment 3), the Bullivants Inspection Report (attachment 4) and PEEPO Report (attachment 5) are all separate and individual documents. It was contended that there is no evidence to establish that the individual attachments had the same purpose or character as the Report. The applicants objected to the attempt to prove the purpose of these attachments by the tender of redacted communications which it was asserted do no more than demonstrate a communication from Ashurst (the documents were admitted, with the applicants to make any submission as to weight). Ultimately it was submitted that BMA had failed to demonstrate the separate purpose for which the attachments were created and that the evidence of Mr Hutchinson was not more than mere assertion.

Work Boats

63    Work Boats submitted that the crucial point in the circumstances (whether legal advice privilege or litigation privilege is relied upon), is whether those documents were produced for the dominant purpose of a lawyer providing legal advice to his or her client.

64    Work Boats submitted that the evidence does not establish the claim, and that the weight of evidence suggests that, if that was a genuine purpose of creating those documents, it was not the dominant one. It was contended that a primary, even if not the only purpose in preparing the Report, consistent with BMA’s standard health, safety and environment processes, was simply to ascertain the causes of the Incident in order to take any action necessary to avoid (if possible) a recurrence of such an incident in the future. Work Boats submitted that this is established by evidence of standard processes for investigating and reporting on such events and reinforced by representations that BMA made to the maritime safety regulator in the months following the Incident.

65    Work Boats detailed the health and safety standards which it submitted applied to BMA, which included the conducting of investigations of incidents. It submitted that this shows that it was at all material times standard procedure within the BHP group and its “controlled entities”, and therefore inferentially within BMA specifically, to investigate and report on events involving its operations that resulted in, or had the potential to result in, adverse consequences to health, safety, the environment or the community. It was also standard procedure to share the findings among relevant stakeholders in the group. It was submitted that the inference that such standard procedures applied to BMA at the relevant times can be drawn with all the more confidence in circumstances where: BMA was clearly on notice before its evidence was served that it would be contended in response to the privilege claims that a primary purpose of the Report was a routine safety investigation in accordance with standard corporate processes; it was primarily within the power of BMA to adduce evidence of whether such processes applied; and yet its evidence is silent on that question. In those circumstances, it was contended that it can readily be inferred that had such evidence been adduced by BMA it would not have assisted its case. Work Boats submitted that the nature of the Incident was such that it would have been investigated in accordance with standard corporate processes, and an ICAM report, presumably in the same or similar form as the Report that was in fact prepared, would have been prepared for the purpose of identifying the Incident’s causes and taking any necessary action to seek to prevent a reoccurrence of such an incident in the future. It was submitted that the existence of that purpose alone accounted for it being brought into existence: citing Pratt Holdings Pty Ltd v Commissioner of Taxation (Cth) [2004] FCAFC 122; (2004) 136 FCR 357 at [35] (Pratt). It was submitted that this would have been done regardless of any intention to also use the report in obtaining legal advice in anticipation of any litigation. Work Boats contended that BMA was on notice of this response to the claim yet it chose not to adduce any evidence expressly denying, or otherwise addressing, the existence or absence of that purpose among anyone within BMA’s corporate hierarchy.

66    Work Boats submitted that the conclusion is further reinforced by representations made by BMA to MSQ in the months following the Incident. It detailed a correspondence between MSQ and persons at BMA referencing, inter alia, that “HPX3 will undertake a full and detailed investigation” of the Incident and that “MSQ will receive a copy of the report”.

67    Work Boats also criticised the quality of evidence relied on by BMA contending it rises no higher than what can be inferred from the correspondence and the front page of the Report. It also criticised that much of correspondence relied on has been heavily redacted, with the statements in the affidavit being mere assertions, that cannot be tested and should be given no weight.

68    As to the first indicia, Work Boats submitted that there are two fundamental difficulties with the email: first, it does not establish either that the Report itself was, or would disclose, an actual communication between a client and their lawyer made for the dominant purpose of obtaining or providing legal advice. There is no evidence that the final Report was communicated by its authors to a lawyer acting for BMA for that purpose, or of any legal advice that was provided to BMA in light of the Report. There is no evident reason why, had such communication of the report occurred or advice been provided in light of it, the subpoenaed entities could not have adduced evidence of that communication and subsequent advice (without disclosing their contents). Although it is not necessarily fatal, the absence of specific evidence of any such communication of the Report, or of any such advice being given, undermines any inference that its purpose when created was for use in the provision of legal advice. Second, the most that the passage of the email objectively establishes is that Ms Holding was of the view that the fact that litigation was in prospect and that legal advice was being taken was a reason that conducting those investigations was necessary. Whatever Ms Holding’s motivations, they have no bearing on, and do not negate, the existence of any other reason why an investigation into, and report on, the Incident was necessary or desirable.

69    As to the second indicia, Work Boats contended that the assertion that Ashurst was “involved in the drafting of the [ICAM] Report” overstates the evidence. It contended the nature and extent of any involvement by Ashurst in directing the investigation and preparing the Report was evidently determined entirely by Ms Holding’s decision to engage Ashurst, and by the nature of her instructions to them (the content or substance of which is not disclosed in the evidence). It was submitted that the nature and extent of that involvement reflects no more than Ms Harding’s personal motivations and purposes in setting up the framework for the production of the Report.

70    As to the third indicia, it was submitted that the involvement of the insurer adds nothing to the claim and if anything it detracts from it. Work Boats detailed why it said that was so, submitting that neither the mere notification of Stein on the day of the Incident or entering into the common interest privilege agreement displaces the existence of the alternate purpose Work Boats has posited. Further, the inclusion of the solicitor from HFW [Stein’s Solicitors] in the investigation team does not establish that the investigation was for the dominant purpose of obtaining advice from a lawyer acting for BMA. Rather, it was submitted, in so far as the Report was prepared for legal advice at all it was “bifurcated into two purposes: one of BMA obtaining legal advice from its lawyers and one of Stein obtaining legal advice from its lawyers” such that neither purpose could be said to be dominant to the detriment of the subsistence of legal professional privilege in the Report.

71    In relation to the attachments, Work Boats submitted the evidence is scant but it is tolerably clear from their brief descriptions that attachments 1, 2 and 5 were created by the same people that authored the body of the Report and that they form an integral part of that report. It was submitted that as this is the only basis on which privilege over those attachments, that claim must rise or fall with the claim for privilege over the body of the Report. It contended that the descriptions of those attachments suggest that their subject matter is facts surrounding the Incident and its causes, including the personal, environmental, equipment and procedural factors that may have been relevant to the Incident. It submitted that is entirely consistent with an ICAM analysis obtained in the ordinary course of business to help identify the causes of the Incident and seek to prevent the future occurrence of similar incidents.

72    In relation to attachments 3 and 4 to the Report, it submitted that they are clearly documents prepared by third parties, Aurecon and Bullivants, rather than members of BMA’s ICAM investigation team or any lawyer acting for BMA. In those circumstances, Work Boats submitted, the claims for privilege in the external reports cannot be sustained by evidence concerning privilege in the Report itself but must be assessed on the evidence that pertains specifically to those documents. It was contended that the supporting evidence is minimal, and consists of bald assertions by Mr Hutchinson that each was produced by its authoring company “upon instructions by Ashurst” and that “all relevant communications with [that company] were managed by Ashurst as part of and for the sole purpose of the ICAM investigation”, together with redacted copies of the instruction letters from Ashurst to those companies. Those assertions were said to be insufficient.

73    Work Boats submitted that the Court should examine the Report and that if it found that it has features of an ICAM report then the Court should find that it was not commissioned for the dominant purpose such that it would attract legal professional privilege.

Legal principles

74    As BMA’s claim for privilege are made in the context of pre-trial disclosure or inspection of documents, it is governed by the common law and not the Evidence Act 1995 (Cth) : Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49 at [16]-[17] (Esso); Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) [2011] FCA 1057; (2011) 283 ALR 299 at [6]-[9].

75    Legal professional privilege protects a person from being compelled to produce documents or give information which would reveal communications between a client and his or her lawyer, made for the dominant purpose of obtaining or providing legal advice, or the provision of legal services, including representation in pending or anticipated legal proceedings: Esso at [35], [61]; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [9]. The first limb of legal professional privilege may be referred to as advice privilege, the second limb as litigation privilege.

76    The dominant purpose is the “ruling, prevailing or most influential purpose”: Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416. It is a purpose that predominates over other purposes; the prevailing or paramount purpose: AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382 at [105]-[106] (AWB Ltd v Cole). The “dominant purpose” brings within the scope of the privilege a document brought into existence for the purpose of a client being provided with professional legal services notwithstanding that some ancillary or subsidiary use of the document was contemplated at the time: Esso at [58]. The purpose for which a document is brought into existence is a question of fact that must be determined objectively, having regard to the evidence, the nature of the document and the parties’ submissions: AWB Ltd v Cole at [109]-[110].

77    An appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt at [35]. Attention is focused on the purpose (or purposes) of the person who created the document, or who, if not its author, had the authority to, and did, procure its creation: Pratt at [35]. Where the person who procured the creation of the document is not its author (such as a solicitor commissioning a report), the intention of that person, not the author’s, is relevant: Hartogen Energy Ltd (in liq) v Australian Gaslight Co (1992) 36 FCR 557 at 568-9. If a document would have been prepared irrespective of the intention to obtain professional legal services or legal advice, it will not satisfy the dominant purpose test: Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266 at [30(8)] (Pratt 2005); Re Southland Coal Pty Ltd (receivers and managers appointed) (in liq) [2006] NSWSC 899; (2006) 203 FLR 1; at [14(h)] (Re Southland Coal). Although as noted above, the existence of an ancillary purpose is not fatal to a privilege claim, if there are two purposes of equal weight, neither is dominant: Pratt 2005 at [30(8)]; Re Southland Coal at [14(h)].

78    Litigation privilege attaches to confidential communications passing between a client and the client’s lawyer or a third party, or the client’s lawyer and a third party, where the communication was made for the dominant purpose of use in, or in relation to, existing or reasonably anticipated litigation: Mitsubishi at [8]; Commissioner of Taxation v Pratt Holdings Pty Ltd [2003] FCA 6; (2003) 195 ALR 717 at [39]; AWB Ltd v Cole at [144]. The key difference between advice privilege and litigation privilege is that litigation privilege is not limited to communications whose dominant purpose is the giving or obtaining of legal advice: AWB Ltd v Cole at [145].

79    Whether or not litigation is reasonably contemplated is a question of fact to be determined objectively: Esso at [172]; Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [6]. The subjective views of the parties are relevant but not determinative and the question must be assessed by reference to all of the surrounding circumstances: Ensham Resources Pty Ltd v AIOI Insurance Company Ltd [2012] FCAFC 191; (2012) 209 FCR 1 at [53] (Ensham). Although different tests have previously been applied, the relevant test is now that “there must be a real prospect of litigation, as distinct from a mere possibility, but it does not have to be more likely than not”: Mitsubishi at [19]; Ensham at [55]-[57]. Whether or not litigation is reasonably contemplated is determined at the time the creation of the document is procured: Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380 at [19]-[21].

80    Legal professional privilege may attach to confidential communications between an employer and its employed or “in-house” solicitor or counsel provided that the employer consulted the employed solicitor in a “professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client”: Waterford v The Commonwealth (1978) 163 CLR 54 at 100; and see AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 at [44(10)] (AWB Ltd v Cole (No 5)). Although there may be some debate about the need to establish independence: Martin v Norton Rose Fulbright Australia [2019] FCA 1101 at [67]-[76], nonetheless it is matter which necessarily is one of fact and degree: Seven Network Limited v News Limited [2005] FCA 142 at [5] (Seven Network). Whether the necessary qualities exist will depend on the structure of their role and the nature of their employment: Seven Network at [4]-[5].

81    The party claiming privilege bears the onus of proving the facts necessary to establish the relevant privilege, including that the communications or documents in question were made or created for the required dominant purpose. The existence of privilege will not “necessarily or conclusively [be] established by resort to any verbal formula or ritual”: Grant v Downs at 689. Nor will it necessarily be sufficient for a party merely to assert a claim for privilege or rely on an affidavit which asserts the purpose for which a document was brought into existence followed by a statement of the category of legal professional privilege to which the document is said to belong: NCA v S at 211; Kennedy v Wallace at [13]-[17]. The evidence should be focused and specific: Barnes v Commissioner of Taxation [2007] FCAFC 88; 242 ALR 601 at [18]. A “bare or skeletal” claim, unsupported by evidence which enables the court to consider and make an informed decision about the correctness of the claim or whether it is supportable, will not suffice: NCA v S at 212. The claimant must, by direct admissible evidence, set out the facts from which the court can consider whether the assertion or assertions concerning the purpose of the communication in respect of which privilege is claimed is properly made: Hancock v Rinehart (Privilege) [2016] NSWSC 12 at [27] (Hancock). The best evidence will be that given by the person whose purpose is in question: Hancock at [32].

82    The court has the power to examine documents in respect of which a claim is made: Grant v Downs at 689. The essential purpose of inspecting the documents is “to determine whether, on its face, the nature and content of the document supports the claim for legal professional privilege”: AWB Ltd v Cole (No 5) at [44(12)]. “[I]n many instances the character of documents the subject of the claim will illuminate the purpose for which they were brought into existence”: Grant v Downs at 689. A party is not entitled to insist on the court inspecting the documents, it being a matter for the discretion of the judge, who will only do so if there is good reason: Hancock at [31], citing Westminster Airways Ltd v Kuwait Oil Co Ltd [1951] KB 134 at 146, District Council of Mallala v Livestock Markets Ltd [2006] SASC 80; (2006) 94 SASR 258 at [30], Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529 at 542.

83    Against that background I turn to consider the submissions.

Consideration

84    At the outset it is appropriate to make a number of observations about the evidence, given the opposing parties submissions as to its sufficiency.

85    The parties accepted during the hearing that s 75 of the Evidence Act applied to this hearing. This was in accordance with the well-established practice in relation to applications of this kind: Kirby v Centro Properties at [14]; Morton v Bolinda Publishing Pty Limited [2017] FCA 187 at [61].

86    As the opposing parties correctly recognised, Mr Hutchison was not involved in the commissioning of the Report. However, it does not follow that his affidavits, and more significantly, the evidence on which BMA relies, are no more than conclusory assertions of the type discussed in NCA v S at 211, such that the claims are unsupported by evidence to enable a court to make an informed decision as to the correctness of the claim.

87    This claim arises in the context where the Incident and the commissioning of the Report in question occurred 7 years ago. Those lawyers involved in commissioning the Report are no longer with BHP Legal, having left in January 2015. In that context, Mr Hutchinson provides contemporaneous emails and documentation surrounding the commissioning and preparation of the Report. Notwithstanding the redactions (which may affect the inferences to be drawn and the weight that can accordingly be attached to them), it is nevertheless from those documents that BMA contend the subjective purpose of commissioning the Report is clear and an assessment of the circumstances from the objective viewpoint can be made. Leaving aside the issue of the documents being redacted, it was not suggested that documents of this nature or type were not admissible per se, or could not be capable of establishing a claim for privilege.

88     The applicants objected to some of the documents on the basis that aspects of their contents were redacted. It was submitted, inter alia, that it was not clear that the Evidence Act permitted the tender of a document, part of which was redacted, and that a party has to tender all of the communication in a document or not tender the document at all, the applicants cited no authority for that bald proposition. As a general proposition, if part of a document is redacted for proper reason that, without more does not necessarily render the document inadmissible, although it may affect the question of relevance of the document or, if relevant, what inferences might be drawn from it and the weight to be attached to them. I note here that although a number of documents were admitted over objection on the basis that submissions could be directed to weight, ultimately I was not assisted with detailed submissions on individual documents in this regard.

89    That said, the evidence of Mr Hutchinson, was that those redactions were made as the content was the subject of legal professional privilege, and what was produced was done without waiving privilege. Mr Hutchinson was unchallenged on that point. In that context, the applicants’ submission that it was a forensic decision by BMA to provide redacted documents does not withstand scrutiny. Given the nature of the documents and their unredacted portions, seen in their context, there is no proper basis in the evidence to suggest that it was a forensic choice by BMA to redact the documents as opposed to an approach adopted as being necessary to maintain legal professional privilege. If the privileged material was exposed and relied on by BMA, privilege would have been waived, defeating the very purpose of BMA’s claim.

90    The issue then becomes whether BMA has established that the Report was commissioned for the dominant purpose of obtaining legal advice in relation to litigation that was anticipated to result from the Incident.

91    I am satisfied that the evidence relied on by BMA establishes the factual description of the events as recited above at [23]-[41].

92    The evidence is that it was Ms Holding who commissioned the Report and that she did so for the dominant purpose of obtaining legal advice in relation to litigation that was anticipated to result from the Incident. That was her subjective purpose, as reflected in the contemporaneous documentation.

93    In that context, Work Boats’ submission that the absence of evidence of Mr Baker’s purpose in relation to the Report was a significant omission, misunderstands the relevant legal principles. In Hartogen, Gummow J observed at 568-569:

The purpose for which a document is brought into existence is a question of fact...

The purpose will ordinarily be that of the maker of the document, but this will not always be the case. In Laurenson v Wellington City Corporation (1927) NZLR 510, Skerrett C.J. looked to the person who “calls into existence documents in the bona fide belief that litigation will probably ensue ...”. (emphasis supplied). And the phrase I have emphasised was employed by Stephen, Mason, Murphy JJ. in Grant v Downs (at 682-3). It is apt to describe the situations where, for example, solicitors commission the provision of a technical report; the relevant intention will not be that of the author but the solicitor.

94    Where the person who procured the creation of the report is not the author, as in this case, the intention of that person and not the author’s, is relevant: Hartogen at 568-569. The relevant purpose is that of the person who commissioned the Report which, in this case, was Ms Holding. Work Boats reliance on Powercor Australia Ltd v Perry [2011] VSCA 239; (2011) 33 VR 548 at [20] in this context, is misplaced. There is no basis for Work Boats submission that the absence of evidence from any of its authors or investigators leads to an adverse inference that their evidence would not have assisted BMA.

95    An objective consideration of the evidence, as summarised above, also reflects that it was the dominant purpose. Although it was submitted that the email from Ms Holding was a pro forma or a precedent email it was not seriously challenged that litigation was anticipated at the time of the Incident. Given the nature of the Incident it can be readily accepted that litigation was reasonably anticipated.

96    The email correspondence commissioning the Report was in plain and clear terms as to its purpose, and in accordance with that purpose, protocols were put in place to ensure confidentiality. The report was commissioned by Ms Holding, BMA’s in-house counsel, in a context where there had been prior communication between her and external lawyers; Ashurst was engaged by BMA to provide legal advice in relation to the Incident. The investigation was commissioned by BHP Legal acting as BMA’s in-house counsel, not by BMA management or any other division of BHP, in urgent circumstances shortly after the Incident: see for example Mitsubishi at [15]. Ashurst was involved in the drafting of the Report and commissioned two additional reports for use in connection with the Report. The opposing parties’ submission that the assertion that Ashurst was “involved in the drafting of the [ICAM] Report” overstates the position is not borne out by the evidence. The emails, although containing redactions, reflect the extent of the communication, and the topics on which that was occurring. The inference is, as contended for by BMA, that Ashurst had a substantive role in advising BMA, and that the involvement of BHP Legal and Ashurst was a necessary and legitimate part of the process: Kirby v Centro Properties at [92]. The involvement of their legal assistance and expertise reflect the nature of the Report. The external lawyers, Ashurst, were retained under the Relationship Agreement for Provision of Legal Services between BHP Billiton Limited and Blake Dawson, which inter alia, refers to the legal services including the giving of legal advice on claims and disputes. It is apparent from the evidence that the work for which Ashurst were retained falls within that description. The mere fact of retaining external lawyers in the circumstance, gives rise to the inference it is for legal advice: Kennedy v Wallace at [27].

97    The involvement of Stein, BMA’s liability insurer from the day of the Incident and the later inclusion of a solicitor from HFW on its behalf in the investigation, in the context of the common interest privilege agreement and its terms supports the contention that legal advice in connection with anticipated litigation was the dominant purpose of bringing the Report into existence and the intended use of the Report. The opposing parties’ submission as to the involvement of Stein was that in reality, the evidence as to purpose raises no higher than the email from Ms Holding in commissioning the Report. The submission does not grapple with the gravamen of BMA’s submission on this topic, being that there was no proper reason for the involvement of the insurer and its lawyers in the preparation of the Report if the document was directed to safety issues. I do not accept Work Boats submission recited at [70] above, that in so far as the Report was prepared for legal advice, it was bifurcated for two legal purposes (one being for the insurer), such that neither purpose could be dominate and therefore the Report does not attract privilege. It does not alter the dominant purpose for commissioning the Report which is for the purpose of obtaining legal advice in relation to litigation that was anticipated to ensue from the Incident. The documents relied on are contemporaneous records of what occurred. The documents, from the email commissioning the Report, make the purpose clear with the conduct thereafter being consistent with that stated purpose.

98    The opposing parties’ submission that there is no evidence that the Report was, in fact, communicated by its authors to a lawyer acting for BMA for that purpose is incorrect, as Mr Hutchinson gave evidence that Mr Baker told him that Ms Holding and Ms Anderson reviewed and approved the final version of the Report. Although it is correct that there was no evidence of any legal advice that was provided to BMA in light of the Report, that does not deny the claim for privilege in this case with the focus of the inquiry being on the purpose for which the document was brought into existence: see for example, Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (No 5) [2012] FCA 1226 at [10]-[13].

99    I accept that BMA has established that the documents are privileged.

100    I do not accept the opposing parties’ submissions that the evidence supports a finding that the sole or dominant purpose of the Report was to determine whether systems should be changed to prevent a recurrence of the Incident. Nor do I accept, on the evidence, that there were equally competing purposes.

101    First, to support this submission the opposing parties needed to address the email of 31 January 2014 which commissioned the Report. They submitted that it should not be relied on because it is a pro forma or precedent designed to clothe the report with privilege. The underlying premise must be that this is a device used to give protection to the Report to which it is not properly entitled. There is no proper evidence which supports that submission. The subjective evidence is clear as to the purpose. The objective evidence in regards to the commissioning of the Report, the circumstances of its creation including its timing, the interactions between various person thereafter (as reflected by the emails) and the handling of the Report is all consistent with the claim for privilege.

102    Second, the basis of the submission as to the purpose being to advise on safety measures to prevent future safety incidents, appears to depend on publically available material from the internet as to the approach taken by BHP to incidents and the fact it is an ICAM report. I note that the publications are of varying nature and dates. It was submitted that by its very nature, the purpose of any ICAM investigation and report is to determine the cause of an incident and advise on measures to prevent a future safety incident, which it was submitted is consistent with the systems BHP appear had in place for investigating incidents. That submission is premised on the basis that ‘systems BHP appear to have had in place for investigating incidents, where an ICAM investigation approach was to be adopted not to “apportion blame or liability”, but with the “principal objective” of “prevent[ing] recurrence and to advance safety”’.

103    In that context, the terms of the email of 31 January 2014 commissioning the investigation are important. As is apparent from the recitation of the email above, Ms Holding first explains the purpose for commissioning the investigation: “[t]here is a risk that legal proceedings could be commenced involving BMA as a result of this incident and BMA is taking legal advice in relation to the incident”. Immediately thereafter it stated “[t]o that end”, and instructions are then provided: “investigations are required by BMA regarding the circumstances of the incident and the damage and losses caused as a result of the incident”. There is then a “request that you adopt the ICAM method in carrying out the investigation and report the outcome to Sharron Anderson and myself” [emphasis added]. Ms Holding was asking the investigation team to adopt a particular methodology in carrying out the investigation she had commissioned. Ms Holding asked that they report the outcome.

104    BMA submitted that although some documents downloaded from the internet show that the ICAM method was followed by BHP, there is no evidence from that material which supports the proposition that an ICAM report would necessarily have been commissioned by BMA in these circumstances bearing in mind these facts. BMA submitted that included that it is not BMA’s barge, it is not BMA’s mooring, it is not BMA’s wharf that was damaged, it is not BMA’s maritime area, and there were no injuries to BMA employees. BMA submitted that the material relied on by those opposing the claim show that “these types of reports, the ICAM reports, being required to be followed in particular severe circumstances or situations, some involving death. Now, none of that applied in this case”. Significantly, neither party opposing the claim responded to that submission or pointed to any aspect of the material which was inconsistent with it.

105    The quotes relied on by the opposing parties from the various internet publications appear to reflect that where a safety investigation occurs a new method of ICAM had been introduced. However, although that method may be used in a safety investigation, the corollary does not follow, that is, it does not follow that just because the ICAM method is used the dominant purpose of the investigation must have been to “prevent recurrence and to advance safety”. The purpose of the commissioning of the investigation is to be determined by all the circumstances. That the ICAM methodology was requested does not, in the circumstances of this case, undermine BMA’s claim as to the dominant purpose it commissioned the investigation. It does not follow, as the opposing parties contend, that the sole or dominant (or even equal) purpose BMA commissioned the investigation was to undertake a safety investigation to prevent recurrence.

106    The circumstance of the Incident, the nature of the events in commissioning the investigation which led to the Report and the haste with which they occurred, are not explained by the purpose of the investigation given the factors in [23]-[41] above, being for safety. Nor can the involvement of persons such as the insurers and external lawyers in the investigation process and preparation of the Report.

107    Third, related to that was the submission by Work Boats, relying on an observation in Grant v Downs at 688, that the Report could not be privileged because this report would have been prepared in any event. However, in the circumstances described above at [104], there is no proper basis for that submission. Although Work Boats referred to cl 2.2 of the unredacted services agreement to the effect that BMA was to apply the policies of BHP, as BMA submitted it did not identify any policy or statute which would require BMA to prepare this document, in these circumstances, including those referred to in [65] above.

108    Fourth, contrary to the applicants’ submission, that the investigation was conducted by persons with a technical and non-legal background does not give rise to the inference the investigation was likely to be about safety. As is implicitly recognised in the passage in Hartogen recited above at [93], technical reports are capable of attracting privilege if commissioned for legal purposes. Indeed, such a proposition should be uncontroversial.

109    Fifth, the statement in the common interest privilege agreement between Stein and BMA, that “nothing in this letter is intended to prevent BMA from also using the report produced for it for the additional purpose of assisting with a safety and environmental improvement process” which was relied on by the opposing parties, is not inconsistent with that. This statement was made on 4 February 2014, some days after the Report had been commissioned. The letter states, inter alia, that “confidential information [as defined] is being created for the dominant purpose in use for or in relation to the provision of legal advice to BMA and Stein regarding the Incident and in anticipation for litigation being commenced in relation to the Incident”. In that context it refers to it as an ancillary use to which the Report might be made. I accept BMA’s submission that it does not rise to a purpose equal to or dominant over the litigious purpose in the commissioning of the investigation. Such posterior use is of no moment where the client’s purpose is to seek legal advice in relation to litigation that was anticipated to result from the Incident: see Kirby v Centro Properties at [88]. I note also in this context, the observations of Batt JA in Mitsubishi at [15] which are relied on by BMA, that “it is significant that the reports were commissioned by the solicitors and not by their nominal client. Public safety and quality control were unlikely to be of more than peripheral, if any, concern to the solicitors, certainly when their instructions were as they had stated them to be”.

110    Sixth, the applicants’ submission that the involvement by BMA with MSQ was inconsistent with the purposes of the Report being for legal advice in anticipation of litigation, is not borne out by the evidence. Even though it appears that MSQ were told they would be given a copy of the Report, the evidence established that did not happened. This is apparent from the documentation put to the Court by the applicants which they had obtained as a result of a subpoena. Among the documents is a memorandum of MSQ in which it expresses an opinion of the regional manager that the Report will not be forthcoming, that the matter should be finalised as per the recommendations and the file was closed. That is, the Report was not provided. I was informed that the breadth of the subpoena from which these documents were obtained was such that if the Report had been forwarded it would have fallen within its terms. Further, Mr Baker also informed Mr Hutchinson that at all relevant times he understood that the ICAM Report was subject to a claim of legal privilege and that he did not provide a copy of the Report to MSQ.

111    I am satisfied on balance, BMA has established that the Report is the subject of legal professional privilege. I am also satisfied that attachments 1, 2 and 5 were prepared for the purpose of the Report by the investigation team, and that attachments 3 and 4, were obtained for the privileged purpose of the Report. As noted above, the opposing parties requested that I view the document if I am satisfied that two purposes are proved to be present and it is not obvious from the objective circumstances if there is a dominant purpose and if so what the dominant purpose is. Given my findings above, there is no good reason to view the Report, or the attachments.

Conclusion

112    BMA has discharged its onus of establishing that the Report, including its attachments, attracts legal professional privilege. I order that within 7 days of today, the parties file and serve a minute of proposed orders to give effect to these reasons for judgment and to provide for costs, such minute to be supported, if necessary, by brief submissions.

Associate:

Dated:    14 May 2021