Federal Court of Australia

Sunland Group Limited v Gold Coast City Council [2021] FCA 1473

ORDERS

THE COURT ORDERS THAT:

1.    The respondent submit proposed orders within seven days giving effect to the reasons published today in relation to the respondent’s interlocutory application.

2.    The costs of and incidental to the interlocutory application are reserved for later determination.

3.    The parties file submissions as to costs within 14 days.

4.    The determination of the costs of and incidental to the application be made on the papers unless a party indicates that it wishes to be heard orally on the issue of costs.

5.    Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.

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

REASONS FOR JUDGMENT

GREENWOOD J:

The application

1    These interlocutory proceedings are concerned with an application by the respondent in the principal proceeding, Gold Coast City Council (the “Council”), for two orders under r 20.32(1) of the Federal Court Rules 2011 (Cth).

2    By para 1 of the application, the Council seeks an order that the applicants, Sunland Group Limited (“SGL”) and Sunland Developments No 22 Pty Ltd (“SD 22”, collectively “Sunland”), produce for inspection un-redacted copies of Documents 86, 97, 119, 120, 122, 125, 135, 136, 138, 141 and 142 of Sunland’s list of documents (as set out at pp 17-21, AMA-06 to the affidavit of Mr Alcock filed 14 April 2021). Put simply, those documents consist, in the main, of copies of a document described as a due diligence report provided to Sunland’s directors on 26 September 2014 in relation to a proposed acquisition by Sunland of land at 259 Rio Vista Boulevard, Mermaid Beach (the “Mermaid Beach land” or the “land”). Sunland’s acquisition of the Mermaid Beach land occurred in October 2014. Other documents in the list described above consist of an email dated 26 September 2014 from David McMahon (Sunland’s National Director of Communities) to four of the directors of Sunland (Soheil Abedian, Sahba Abedian, Ronald Eames and Craig Carracher); an email dated 24 September 2014 from David Ransom of Cardno HRP (“Cardno”) to Soheil Abedian (and others); and a further email dated 26 September 2014 (Document 122).

3    Fundamentally, the contest in relation to each of these documents reduces to a question of whether an unredacted copy of the due diligence report relied upon by the directors in deciding to make the acquisition ought to be produced for the inspection of the Council. Each copy of the report is included in Sunland’s list of documents on the footing that the due diligence report is relevant to the issues raised by the controversy on the pleadings in the principal proceeding. However, each copy is partially redacted for reasons of legal professional privilege, according to Sunland’s list of documents.

4    The Council contends that Sunland has waived the claimed privilege. Sunland is said to have waived, by implication, the legal professional privilege otherwise subsisting in the redacted sections of the due diligence report having regard to Sunland’s statement of claim, the matters it has chosen to put in controversy in asserting its cause of action, and the evidence of the directors as to their reliance on the whole of the due diligence report in reaching a state of mind as to contended reliance on representations said to have been made by the Council, in Sunland entering into the acquisition transaction for the Mermaid Beach land. An examination of whether legal professional privilege has been waived, as contended, is a fact-intensive question and it will be necessary to examine the scope of the statement of claim and the other matters upon which the Council relies in asserting waiver. Sunland contends that when the principles that govern that question are applied to the relevant facts, no waiver of the privilege has occurred.

5    By para 2 of the application, the Council seeks an order that Sunland produce for inspection 16 documents (pp 22-23, AMA-06, Mr Alcock’s affidavit filed 14 April 2021) which have been the subject of a claim for legal professional privilege in their entirety. As to these documents, the Council says that Sunland has not produced them on the ground of legal professional privilege, and the Council has chosen not to address these documents separately from the arguments advanced in relation to the para 1 documents on the basis that Sunland’s submissions do not seek to make any point of distinction in the application of the relevant principles (discussed in these reasons) as between the para 1 and para 2 documents. Thus, the contention is that if the Court is with the Council on its primary submission in relation to the para 1 documents, that position equally applies to the para 2 documents.

6    Sunland contests that proposition and says that in addition to failing to establish waiver concerning the para 1 documents, the Council has failed to make good a ground of waiver as to any of the para 2 documents.

The cause of action contended for by Sunland

7    By the statement of claim filed on 29 July 2020, Sunland asserts the following matters.

8    In June 2014, Sunland began consideration of whether it would purchase the Mermaid Beach land offered for sale by Leslie Corporation (Interstate) Pty Ltd (“Leslie Corporation”).

9    The Mermaid Beach land had the benefit of a “preliminary approval” granted on 3 May 2007. The preliminary approval approved the development of the land in accordance with particular conditions. Two of those conditions concerned contributions towards water supply network infrastructure (costs) and sewerage network infrastructure (costs) (Conditions 15 and 16). Those contributions were to be paid to the Council in accordance with Planning Scheme Policy 3A as to water supply contributions and Planning Scheme Policy 3B as to sewerage contributions. By Condition 15, the Council acknowledged that “credits” existed over the site as a consequence of previous payments and that the calculation of the contribution towards water supply infrastructure would recognise those existing credits. Similarly, Condition 16 recognised that existing credits in relation to sewerage infrastructure as a result of previous payments would be taken into account in the calculation of the contribution towards sewerage infrastructure. The contributions would be calculated at rates current at the due date of payment of the contributions. The currency of the preliminary approval was extended until 3 May 2023.

10    On 16 June 2014, Sunland was provided with an Information Memorandum from “Colliers International” concerning the Mermaid Beach land which stated that infrastructure credits worth approximately $19 million existed over the land. On 21 July 2014, Sunland received a copy of a letter from Bennett & Bennett Surveyors and Planners addressed to Leslie Corporation stating that the infrastructure credits amounted to $19,787,500.00.

11    On 21 August 2014, Sunland caused SD 22 to enter into an agreement with Leslie Corporation for an exclusive due diligence period for the purchase of the land, expiring on 30 September 2014.

12    In order to assist Sunland with aspects of its enquiries, Sunland appointed, in September 2014, Cardno (to act as Sunland’s agent to receive responses from the Council concerning enquiries it made of the Council and, expressly, concerning the availability of infrastructure credits). By at least 1 September 2014, Sunland had also appointed Hickey Lawyers (Mr Damien Hodgson, a partner of that firm) to act as one of its representatives in meetings with the Council concerning the development of the Mermaid Beach land.

13    On 1 September 2014, Sunland’s representatives (Soheil Abedian, Chairman of Sunland; Richard Green, Sunland’s Manager of Business Development Acquisitions; David Ransom, Cardno; Kelli Adair, Cardno; and Damien Hodgson, Hickey Lawyers) met with the Council’s representatives (Matthew Hulse, Jeremy Wager, Roger Sharpe and Mick Potter) to discuss the development of the land. Sunland contends that its representatives told the Council’s representatives that Sunland was considering purchasing the land to develop 1,242 dwellings on it; that it understood that credits of $19 million were available; and that Sunland would need all the credits to make the purchase of the land “work”. Sunland says that the Council’s representatives responded by saying that the Council would confirm what credits were available and confirm that the “new regime” under the Sustainable Planning Act 2009 (Qld) (the “SP Act”) did not apply to the issue of “imposing infrastructure contributions and recognising credits” in the calculation of those contributions.

14    On 11 September 2014, David Lohoar (Supervisor, Developer Contributions) of the Council informed Cardno (Kelli Adair) that the Council would honour 1,424 equivalent tenements for water and 1,398 equivalent tenements for sewer, for development under the preliminary approval; that the total value of equivalent tenement credits was $19,960,525.34; and that any subsequent development application made under the preliminary approval would have contributions calculated in accordance with the conditions of the preliminary approval and that such applications were not subject to infrastructure charges under the SP Act.

15    By a letter dated 12 September 2014, addressed to Cardno, the Council confirmed the elements of the conversation of 11 September 2014 in more precise terms: see paras 17 and 18 of the statement of claim.

16    On 22 September 2014, representatives of Sunland (Richard Green (Sunland), David Ransom (Cardno) and Damien Hodgson (Hickey Lawyers)) and the Council’s representatives (Michael Moran, Roger Sharpe and Sally Taylor) met to discuss the development of the Mermaid Beach land. Sunland pleads that the participants discussed whether the proposed development fell within the scope of the preliminary approval. The Council acknowledged that Sunland was intending to utilise the preliminary approval to take advantage of the existing infrastructure credits of $19 million. The Council expressed doubt about whether aspects of the proposal fell within the scope of the preliminary approval. The Council suggested that one option to accommodate Sunland’s proposal was to lodge an application for “permissible change” to the planning approval and, as to that option (although the Council officers present did not consider that a permissible change would affect the continuing availability of the credits), Sunland was advised to contact David Lohoar to confirm that a permissible change to the preliminary approval would not jeopardise existing credits.

17    At the meeting on 22 September 2014, Sunland’s representative (David Ransom, Cardno) said that Sunland would seek clarification from Mr Lohoar regarding any impact of a permissible change application on infrastructure charges and existing credits.

18    Thereafter, on 22 September 2014, David Ransom sought confirmation from Mr Lohoar of those matters.

19    On 24 September 2014, Mr Lohoar in a telephone conversation, told Mr Ransom that due to the scale of the credit, the request to confirm the matters the subject of Mr Ransom’s enquiry had been referred to the Council’s solicitor, Cherie Watt. Subsequently, but on the same day, Mr Lohoar in a telephone conversation with Mr Ransom, told Mr Ransom that Matthew Hulse of the Council had agreed to honour the credits in the context of a permissible change application to the preliminary approval and, to that end, the Council would reissue its letter of 12 September 2014.

20    Thereafter, on 24 September 2014, the Council sent an updated version of the 12 September 2014 letter to Cardno. Sunland pleads matters relating to that letter at paras 20 and 21 of the statement of claim. The pleaded conversations are not admitted by the Council. The Council admits the fact of the letters but not their contended effect.

21    On 3 October 2014, Sunland entered into a written agreement to purchase the land for $61 million. It paid stamp duty of $3,488,025.00. The settlement of the acquisition took place on 29 May 2015.

22    At para 28 of the statement of claim, Sunland pleads that the Council made a series of representations to it to a particular effect.

23    First, that credits of 5,564.9 equivalent tenement credits existed for the land.

24    Second, that the 2014 value of the credits was $19 million.

25    Third, the credits were available to the landowner on an application for development approval as offsets against infrastructure charges or contributions relating to any development approval given under the preliminary approval (the “Credit Availability Representation”).

26    Fourth, impliedly, the credits would continue to be available (in the future) as offsets concerning a development approval given under the preliminary approval (the “Future Credit Availability Representation”).

27    Fifth, new development applications under the preliminary approval were not subject to the SP Act (the “Umbrella Representation”).

28    Sixth, only new development applications outside the scope of the preliminary approval would be subject to the SP Act (the “AICR Representation”).

29    Seventh, impliedly, the statements in the 12 September 2014 letter and the 24 September 2014 letter were reliable and accurate and, impliedly, the Council had a reasonable basis for making each statement in the letters.

30    All of these representations are said to have been made in trade and commerce and three of them (the Future Credit Representation, the Umbrella Representation and the AICR Representation) are said to be representations as to future matters for the purposes of Schedule 2 (“ACL”) to the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law (Qld) (“ACL (Q)”).

31    At para 31 of the statement of claim, Sunland pleads what it describes as the “true position” by reference to seven matters all of which, in sequence, suggest that the pleaded representations have the character of being misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL (and s 18 of the ACL (Q)). The contentions in para 31(a)-(g) reflect the findings and conclusions reached by the Queensland Court of Appeal in Gold Coast City Council v Sunland Group Limited & Anor [2020] QCA 89. On Wednesday, 10 November 2021, the High Court dismissed Sunland’s appeal from that decision: Sunland Group Limited v Gold City Council [2021] HCA 35.

32    Sunland contends at para 31(f) that absent an Infrastructure Agreement being executed between the Sunland entities and the Council, there was no basis for the Council to represent that infrastructure charges or credits would be recognised or treated in any particular way in the future.

33    As to reliance on the pleaded representations, Sunland says that SGL caused SD 22 to purchase the land; SGL loaned SD 22 $64 million to enable the purchase; and SD 22 purchased the land, paid stamp duty and incurred a liability to SGL for that purpose. The particulars of reliance are put this way:

Particulars

The directors of Sunland Group [SGL] and Sunland 22 received, read and relied on a copy of the 24 September Letter.

The directors of Sunland Group and Sunland 22 received, read and relied on a copy of a due diligence report which stated to the effect that:

1)    infrastructure credits would reduce development costs in the order of approximately $19 million and this was a key element of the project’s feasibility;

2)    clarification of the currency of the credits had been sought from the Council, which had provided a formal letter assuring the availability of the credits.

[emphasis added]

34    The due diligence report referred to in those particulars is the un-redacted report entitled “Due Diligence for Proposed Acquisition” attached to the email from David McMahon to three of the directors (as one example) together with the Council’s letter of 24 September 2014 otherwise described as “Annexure 1” to the report.

35    Sunland contends that but for the contravening conduct the following things would have occurred.

36    SGL or SD 22 (or both) would have required the Council to enter into an “Infrastructure Agreement” with either or both of those Sunland entities on terms that would have recognised the credits relating to the land the subject of the preliminary approval; and for any application for development approval made under the preliminary approval: (a)  the Council would assess and impose infrastructure contributions in accordance with the terms of the preliminary approval and not impose infrastructure charges under the SP Act; and (b)  the Council would apply the credits in accordance with Conditions 15 and 16 of the preliminary approval as offsets against contributions required for water and sewerage infrastructure.

37    Sunland says that the Council would have agreed to enter into such an Infrastructure Agreement. That proposition is said to arise as a matter of inference from the Council’s conduct concerning the meeting of 1 September 2014, the exchanges on 11 September 2014, the letter of 12 September 2014, the meeting of 22 September 2014 and the letter of 24 September 2014.

38    Sunland says that the Infrastructure Agreement would have been concluded in or about October 2014.

39    Sunland also says that in the alternative to the matters at [37] and [38] of these reasons, SGL and SD 22 would have negotiated for SD 22 to purchase the Mermaid Beach land for a price reflecting its market value without the benefit of $19 million of infrastructure credits, being a price substantially less than $61 million and SD 22 would have acquired the land for that substantially lower price. Alternatively to those propositions, Sunland says that SD 22 would not have entered into and completed an acquisition of the land at a cost of $61 million and would not have paid stamp duty of $3.48 million.

40    Sunland also says that under an Infrastructure Agreement in the asserted terms, infrastructure contributions associated with development permits applied for under the preliminary approval would have been (and would be) calculated in accordance with Conditions 13 to 16 of the preliminary approval and the credits would have been (and would be) available as offsets against infrastructure payments required for water and sewerage infrastructure for development of the land authorised by development approvals granted under the preliminary approval (or what is described as the “umbrella” of the preliminary approval).

41    Sunland says that as a result of the contravening conduct, it has lost the benefit of the value of the credits worth $13,567,510.30 over the life of the development of the land. Instead of credits of that value, it has the benefit of credits, calculated at 29 June 2020, of $2,336,306.46. Sunland says that it has suffered a loss of $11,231,203.84 in unrecognised infrastructure credits. It says that it will now be required to pay additional charges of $11,076,887.48 and thus it says it has suffered loss and damage in the sum of $22,308,091.32. In the alternative to those matters, Sunland says that it has suffered a loss of opportunity to purchase the land for a price reflecting its market value without the benefit of $19 million of infrastructure credits being an amount substantially less than the purchase price of $61 million and it says it has suffered a loss, in those circumstances, by reason of having paid excessive stamp duty.

42    There is also a claim for negligent misstatement.

43    Returning to the central question of reliance, the two matters recited in the Particulars set out at [33] of these reasons (apart from the 24 September letter) arising out of each of the directors having received, read and relied upon the due diligence report (that is to say having read and relied upon the text of the entire document) are the matters of the infrastructure credits reducing the development costs by $19 million as a key element of the feasibility of the project, and also clarification of the currency of the credits by reference to a formal letter assuring the availability of the credits. Those matters recited in the particulars can be found at p 12 of the due diligence report as follows:

5.0    INFRASTRUCTURE CHARGES

In accordance with a Development Consent dated 22 October 1997 and Council’s Decision Notice dated 22 April 1999, the Leslie Corporation reportedly prepaid infrastructure credits at the request of the Albert Shire Council (revenue raising). Clarification of the currency of these credits has been sought via the Gold Coast City Council with a formal letter issued and attached to the Annexures of this report. It details:

•    Council database recognises a credit of 1,404.23 equivalent tenements against water infrastructure;

•    Council database recognises a credit of 1,378.22 equivalent tenements against sewer infrastructure;

•    That the charges payable will be as per the policy in the Court Order dated 3 March 2007; and

•    That a Permissible Change application to the existing Preliminary Approval which merely repositions components of the development but maintains densities and will allow for the credits to be maintained.

Cardno Town Planners have undertaken calculations of the value of these credits and advise that the savings would be up to $19,681,214.05. It is noted that the full value of these credits may not be redeemable depending on the yield developed (no compensation will be received for credits not redeemed).

It is considered that these credits are a key value influencing factor in this acquisition and that the letter from Gold Coast City Council assures this has been confirmed. [Redaction] Cardno Town Planners confirm that the letter secures the credits.

[emphasis added]

44    The words the subject of the above redaction are removed by Sunland on the ground of legal professional privilege.

45    Under the heading “Town Planning” at p 13 the due diligence report says this:

The Sunland Group intends to use [particular documents] as a guideline for the project however with some changes in location of buildings, density and height of buildings are proposed. Based on advice from [Redaction] Cardno Town Planners, Sunland has undertaken two pre-lodgement style meetings with Gold Coast City Council to ensure their support of the proposed amendments. The strategy envisaged is considered to be the path of least resistance with regards to timelines as well as ensuring infrastructure credits are honoured.

46    The words the subject of the above redaction are removed by Sunland on the ground of legal professional privilege. It seems clear enough that the reference in the above text to the two pre-lodgement style meetings with the Council is a reference to the meetings on 11 September 2014 and 22 September 2014. At para 6.6 on p 19 of the due diligence report, these observations occur:

6.6    Sunland Approval Strategy (master planned component)

Sunland intended development proposal varies from the central proposal outlined within the existing Preliminary Approval with the primary differences relating to increased heights of multi-unit buildings and redistributed densities throughout the precincts of the site. Several meetings with the Gold Coast City Council have been undertaken to provide clarity as to their acceptance of these amendments and most appropriate strategy to employ with which to secure them whilst retaining the existing infrastructure credits. [Redaction] Cardno Town Planners have provided in-depth analysis of the strategies available and have advised Sunland as to their potential outcomes.

There are two strategies available to pursue the changes intended being:

•    Strategy 1 – seek to convince the Council that the Sunland development proposal is consistent with the existing Preliminary Approval.

•    Strategy 2 – Amend the existing Preliminary Approval through a Permissible Change application so that the documents support the development proposed.

47    The words the subject of the above redaction are removed by Sunland on the ground of legal professional privilege.

48    In the context of the discussion of Strategy 1, the report says this:

[Redaction]

GCCC has suggested that their preferred strategy would be that Sunland seek to amend the existing Preliminary Approval through a Permissible Change application which would require a hearing with the Planning and Environment Court which is Strategy 2.

49    Again, the redacted words are removed by Sunland on the ground of legal professional privilege.

50    A conclusion is expressed at p 21 of the report in these terms:

Conclusion

[Redaction] Cardno Town Planners, agree that the best option to allow Sunland to develop as per its intended design would be to undertake a multipronged attack with both strategies to be implemented at the same time. It is intended that:

•    Development approvals will be lodged against the existing Preliminary Approval for the townhouse and detached dwellings lots which will be in-line with the prescribed allowances within the approvals and therefore code assessable. This will allow for the construction and sale of these components to be brought forward and therefore reduce debt.

•    At the same time Sunland will be undertaking workshops with Council to establish the perimeters available with regards to amending the existing Preliminary Approval by a Permissible Change application (detailed in Strategy 2) to allow for future development to be code assessable. [Redaction]

•    Subsequent development applications will be required for each multi-unit project, but may be Code Assessable provided they comply with the amendment Plan of Development.

51    Again, the redacted words are removed by Sunland on the ground of legal professional privilege.

52    The Council’s letter from Mr Lohoar to Cardno dated 24 September 2014 is Annexure 1 to the report. It says, relevantly for present purposes, this:

I refer to our telephone conversation of this date and your previous emails requesting clarification of the application of available credits pertaining to the [Mermaid Beach land] particularly in light of a proposed Permissible Change Application being lodged.

As previously advised credits of 1,404.23 equivalent tenements for water infrastructure and 1,378.22 equivalent tenements for sewer infrastructure are held in Council’s database against this development.

[The letter then sets out further details of those credits.]

…

These credits are available as offsets against charges required for the Water and Wastewater Networks under conditions 15 and 16 of the Court Order dated 3 March 2007 and any subsequent approvals under the umbrella of that approval. Council is of the view that a Permissible Change Application which merely repositions certain components of the development but maintains existing approved densities and equivalent tenement demands would remain under the “umbrella” of the original approval and maintain those established credits.

Should there be any new application lodged outside of this Preliminary Approval contributions would be assessed in accordance with the charging regime in place at that time and credits recognised in accordance with that regime.

…

53    Apart from pleading the matters of reliance described at [33] of these reasons, the directors have given evidence of the factors informing their decision-making in relation to the acquisition. The Chairman of the Board of Directors of Sunland is Mr Soheil Abedian. He has held that position since October 2011. He has given an affidavit filed on 12 March 2021. He gives evidence that he received an email from Mr David McMahon dated 26 September 2014 attaching a copy of the due diligence report which in turn included a copy of the Council’s letter dated 24 September 2014. He notes at para 6 that the report included statements to the effect that it was anticipated that credits would reduce costs in the order of approximately $19 million and that these credits formed a “key element” of the project’s feasibility and that clarification of the “currency” of the credits had been sought from the Council with a formal letter issued and attached to the report. He says that it was and remains his practice to read due diligence reports in relation to potential acquisitions in advance of the relevant Board meeting and in accordance with that practice he read the report at about the time he received it on 26 September 2014. He says this at paras 8 and 9 of his affidavit:

8    At the time I read it [the due diligence report], I understood from it that:

(a)    the availability of infrastructure credits in the amount of approximately $19m were important to the feasibility of the project; and

(b)    the Gold Coast City Council had formally confirmed (on letterhead) that it would honour those credits.

9    I relied on the Due Diligence Report and the letter from the Gold Coast City Council that was annexed to the report, in voting to approve the potential acquisition.

[emphasis added]

54    Mr Sahba Abedian is the Managing Director of SGL. He became the sole Managing Director in 2006. He provided an affidavit filed on 12 March 2021 in which he describes matters relating to the decision to acquire the Mermaid Beach land. He says that he had no direct involvement in the due diligence investigations other than as a member of the Board which approved the acquisition. He says that on 26 September 2014, he received an email attaching a copy of the due diligence report. He says that he read the email and the report at about the time he received them. He says that it was, and continues to be, his practice to review due diligence reports “as a whole (including any annexures)”. At paras 8, 9 and 10 he says this:

8    … I noted that the availability of the infrastructure credits was important to the overall feasibility of the project and I paid particular attention to the Due Diligence Report in so far as it confirmed the availability of the credits and that the Council had confirmed it would honour them

9    It was my general practice when approving acquisitions to rely on the details included in the Due Diligence report. This was because, in my experience, Sunland management are very thorough in undertaking investigations. If the management recommended an acquisition to the Board, I was comfortable that the Due Diligence Report supporting this recommendation would be based on a thorough investigation.

10    I relied on the Due Diligence Report, including the letter from the Gold Coast City Council that is annexed to the Report in deciding to approve the acquisition of the Mermaid Beach land.

[emphasis added]

55    Mr Ronald Eames is also a Director of SGL and has held that position since March 2006. He is also Chair of the Audit Committee of SGL, a position he has held since March 2007. Mr Eames provided an affidavit filed on 12 March 2021 in which he describes the factors which informed his thinking in making a decision in relation to the acquisition of the Mermaid Beach land. He describes an email he received from Ms Gurney on behalf of David McMahon and he attaches a copy of that email to his affidavit. He also refers to the email from Mr McMahon of 26 September 2014 attaching a copy of the due diligence report prepared by management in relation to the acquisition of the land for the consideration of the Board. He says that when considering potential acquisitions, it has been his practice and continues to be his practice, to read due diligence reports in their entirety. He says that he reads such reports as soon as possible after receiving them and reads them well in advance of the relevant Board meeting. He says that the due diligence report includes comments to the effect that it was anticipated that the credits would reduce costs in the order of about $19 million and hence the credits would form a key element in the feasibility of the project and the clarification of the currency of the credits was being sought from the Council with a formal letter having issued as attached to the report. At paras 12 and 13 of his affidavit he says this:

12.    I read the report and noted the above matters. Having read the report, I viewed the availability of the infrastructure charges credits and the confirmation by the Council that it would honour the credits as crucial to the feasibility of the potential acquisition.

13.    In voting in favour of the acquisition of the Mermaid Beach Land, I relied on the Due Diligence Report, including the letter from the Council that was annexed to the Report in satisfying myself that the credits were available should SGL purchase the Mermaid Beach Land.

[emphasis added]

56    Mr Craig Carracher was in the period 1 July 2010 to 21 September 2019 a Director of SGL. Mr Carracher has provided an affidavit filed on 12 March 2021. He also talks about the factors that informed his decision-making in relation to the acquisition of the land. As to the role of the due diligence report, he says this at para 10 of his affidavit:

10.    … I do not now recall reading the Due Diligence Report, however I would have done so at around the time that I received it [which he says was on 26 September 2014 by email]. My practice when considering potential acquisitions was to review the entirety of the Due Diligence Report. I would pay particular attention to the feasibility in a due diligence report and ensure that the predicated internal rate of return was within Sunland’s generally expected margin.

57    Mr Carracher also observes the same two matters noted by the other directors in the due diligence report to the effect that it was anticipated that credits of $19 million would reduce costs and hence form a key element of the feasibility of the project and that clarification of the currency of the credits had been sought from the Council with a formal letter issued and attached to the report. He says that his consent as director to the acquisition was “based on my review of and reliance on the Due Diligence Report (including its annexures)”.

58    Mr Grant Harrison is the Company Secretary of SGL and SD 22. He is also a director of SD 22 and the Chief Financial Officer of SGL. Mr Harrison says that although he was not involved in the due diligence, Cardno was engaged to assist Sunland with the due diligence enquiries in relation to the land and that Hickey Lawyers provided some assistance with due diligence investigations. He says that as with Cardno, Hickey Lawyers acted on an as-needed basis for Sunland in relation to various matters and, to the best of his recollection, there was no specific written retainer with Hickey Lawyers concerning the purchase of the Mermaid Beach land. He says that on 26 September 2014 he was copied into an email from Mr McMahon attaching a copy of a “Board Approval Report” for the acquisition of the land which he annexes to his affidavit. It is not necessary to examine those documents in any detail.

59    The essential submissions of the parties can be summarised in the following way.

60    The Council contends that Sunland accepts that the due diligence report is relevant. It has been produced as directly relevant to the issue of reliance subject to the redactions all attributed to a claim of legal professional privilege which necessarily means that the document contains, in the various redacted sections, communications to the directors of advice or a summary or synthesis or the effect of communications made by Sunland’s legal advisers, Hickey Lawyers, to management. The Council says that not only does Sunland plead reliance on the due diligence report emerging out of a process at which critical issues central to the decision to acquire the land were discussed with representatives of the Council on 11 September 2014 and 22 September 2014 at which Hickey Lawyers, so far as legal questions were concerned, represented Sunland, the directors assert in their affidavit evidence that they each relied on the due diligence report, that is, the whole or entirety of the due diligence report (which engages with the essential aspects of the representations said to have been made by the Council to Sunland), including the now redacted text, whatever it may be, in electing to cause SD 22 to purchase the land (in contended reliance on the pleaded representations).

61    The Council says that there is clear inconsistency between Sunland seeking to rely on the due diligence report for the full probative effect on its case on reliance and thus its cause of action, on the one hand, and at the same time seeking to deny to the Council sections of the due diligence report that reflect a synthesis of communications made by the legal advisers, on the other hand. The contended inconsistency of treatment is the critical matter relied upon by the Council in seeking to make good its case that Sunland, by reason of the inconsistency of treatment, has impliedly waived the legal professional privilege otherwise subsisting in the redacted text.

62    For Sunland’s part, it essentially says that before the principle of inconsistency of treatment is properly engaged, it must be clear that Sunland has put in controversy the specific text in respect of which privilege is said to have been waived. Sunland says that it has done no more than rely upon the due diligence report at large and has not sought to put in controversy the particular content of the advice in respect of which there is a claim for legal professional privilege.

Matters of principle

63    Although Mason and Brennan JJ in Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 (“Maurice”) at 487 described legal professional privilege as “an ancient doctrine which has assumed a life of its own”, it is now “settled” that legal professional privilege is a rule of substantive law (Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 (“Daniels”), Gleeson CJ, Gaudron, Gummow and Hayne JJ at [9]); that is, “a substantive general principle of the common law” (“Maurice”, Deane J at 490) which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings: Daniels, the plurality at [9].

64    More accurately, the privilege is described as an important common law immunity: Daniels, the plurality at [11].

65    The client may, however, relinquish the privilege either expressly or impliedly. The authoritative statement of the principles governing waiver of the privilege at common law derives from the observations of the plurality in Mann v Carnell (1999) 201 CLR 1, Gleeson CJ, Gaudron, Gummow and Callinan JJ at [28] and [29], in these terms:

Waiver of privilege at common law

28    At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that “waiver” is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client’s version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer’s evidence as to advice given to the client will be received.

29    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. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister’s version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. 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.

[emphasis added; citations omitted]

66    In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 at [30] (“Expense Reduction”), the Court (French CJ, Kiefel, Bell, Gageler and Keane JJ) expressed these observations (citations omitted):

According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege). It may be express or implied. In most cases concerning the waiver, the area of dispute is whether it is to be implied. In some cases waiver will be imputed by the law with the consequence that a privilege is lost, even though that consequence was not intended by the party losing the privilege. The courts will impute an intention where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.

[emphasis added]

67    Although the reference to “plainly inconsistent” at [30] in Expense Reduction cites Mann v Carnell at [29], the passage at [29] does not use the emphatic term “plainly inconsistent” but simply recognises that “[w]hat 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”. There is either inconsistency or not and I doubt whether the Court in Expense Reduction was seeking to elevate the circumstance of inconsistency to some higher emphatic plain, especially because the authority cited for the proposition at [30] in Expense Reduction is Mann v Carnell at [29].

68    In DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 (“DSE”), Allsop J at [61] observed that “by expressly or impliedly making an assertion about the contents of the communication” or by “laying the communication open to scrutiny”, the inconsistency enunciated in Mann v Carnell arises: see also [58] of DSE. His Honour observes that it is the “existence of that inconsistency that is important”. The governing principle is that expressed by the plurality in Mann v Carnell at [29] and by the Court at [30] in Expense Reduction: see also Osland v Secretary, Department of Justice (2008) 234 CLR 275 (“Osland”), Gleeson CJ, Gummow, Heydon and Kiefel JJ at [45].

69    These principles have been considered in some detail in two Full Courts of the Federal Court of Australia emphasised in these proceedings (although, of course, the governing principles are to be found in Mann v Carnell, Expense Reduction and Osland).

70    In Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341; [2006] FCAFC 86, the Commissioner had examined a series of complex dividend assignment transactions as a result of which Rio received a substantial dividend of $100 million as the owner of the shares in Bankers Trust Australia Ltd (“BTA”). The Commissioner had assessed the payment as assessable income under particular provisions of the Income Tax Assessment Act 1997 (Cth) (the “ITAA 97”) and further determined that the payment was a dividend that arose out of a dividend stripping transaction for the purposes of s 46A of the Income Tax Assessment Act 1936 (Cth) (the “ITAA 36”).

71    In order to raise the relevant assessments, the Commissioner had to reach a state of satisfaction that the dividend assignment transaction was a transaction “by way of dividend stripping” for the purposes of s 46A. Rio contended that the statutory integers required the Commissioner to reach a state of satisfaction about such matters as the relevant scheme in question, the content of the transaction and other factors.

72    In the proceedings before the primary judge, the Commissioner had filed a statement of facts, issues and contentions (an “SFIC”). That document had been challenged and a second SFIC had been filed. Rio contended that the second SFIC was inadequate in setting out the basis upon which the decision-maker had reached a statutory state of satisfaction. Rather than challenge the second SFIC, Rio sought particulars of the document. The Commissioner objected to the particulars but nevertheless elected to respond by letter and said that subject to any claim that a document, or a part of a document, is protected from production on the ground of legal professional privilege (or a statutory provision under the legislation) copies of documents referred to in Schedules A, B, C or D of the letter could be examined by appointment. Those four schedules listed in excess of 500 documents and each schedule contained a note stating that the documents referred to in the schedule may be protected from production on the ground of legal professional privilege either in whole or in part and that inclusion of a document in the schedule did not waive any protection properly available.

73    In response to a notice to produce given by Rio, the Commissioner produced an “Audit Report” which included a statement that the Commissioner would be relying on grounds “confirmed” by its lawyers. The Commissioner refused to produce 17 documents in the schedules on the ground of legal professional privilege. Rio served a second notice to produce that sought the legal advice referred to in the Audit Report. The Commissioner refused to produce nine further documents (otherwise described as the nine privileged Audit Report documents) on the ground of legal professional privilege. These privileged Audit Report documents were a subset of the 17 documents recited in the schedules.

74    In order to maintain the assessments, the Commissioner’s SFIC necessarily had to assert the existence of a state of satisfaction that the transaction was by way of dividend stripping for the purposes of s 46A. Rio had challenged whether the repository of the power had properly reached the statutory state of satisfaction having regard to the principles identified by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, at 360 (failure to comprehend the statutory question, mistake of law, taking into account irrelevant considerations, excluding relevant considerations).

75    Thus, whether the decision-maker had reached the requisite state of satisfaction according to law was a central question in the proceedings.

76    The Commissioner had purported to respond to the requests for particulars by answering that the matters, things, circumstances and events taken into consideration in reaching the relevant state of satisfaction were “those evidenced” by the documents in identified lists. By the answers to the particulars, the Commissioner disclosed that the eight privileged scheduled documents were relevant to reaching his state of satisfaction and, by the particulars, said that he had taken into account the matters evidenced by the numerous documents including the eight privileged scheduled documents.

77    The Full Court (Kenny, Stone and Edmonds JJ) observed that the mere acknowledgement of the relevance of privileged documents to the key issues did not amount to an act inconsistent with the maintenance of the privilege.

78    The Full Court further observed that if the particulars merely disclosed that the Commissioner had taken into account legal advice in reaching his state of satisfaction, that disclosure would not be inconsistent with the maintenance of the privilege.

79    The question was whether, by identifying as the basis for his state of satisfaction, the matters “evidenced” by the documents, the Commissioner had gone further and acted inconsistently with the maintenance of the privilege.

80    In answering that question, the Full Court identified the following principles (and, ultimately, the authority is only relevant as to the matters of principle). At [65], the Full Court observed that the “question is not whether the Commissioner has put his state of mind in issue but whether he has directly or indirectly put the contents of the otherwise privileged communications in issue in the litigation, either in making a claim or by way of defence”. Adopting the language of Allsop J in DSE, the Full Court observed that the question was whether the Commissioner had made an assertion as part of his or her case in the litigation that “lays open” the privileged documents to scrutiny with the consequence that an inconsistency arose between the making of the assertion and the maintenance of the privilege.

81    At [67], the Full Court observed that in exposing his states of mind and the basis for it, the Commissioner would not ordinarily act in a manner inconsistent with the maintenance of the privilege over legal advice relevant to his attaining a state of satisfaction or in exercising a discretion. At [67], the Full Court said this:

Since the decision of the majority of the High Court in Waterford [(1987) 163 CLR 54], it is plain enough that legal professional privilege may attach to communications brought into existence by government officers seeking or giving legal advice as to the nature and extent of governmental powers, whether statutory or otherwise: see Waterford at 63-64 per Mason and Wilson JJ at 74-75 per Brennan J. Even though such communications may contribute to the decision-making, the mere reference to this fact by a decision-maker in the course of defending a judicial review application or on a taxation appeal is not inconsistent with the maintenance of the privilege: compare Webb v Commissioner of Taxation (Commonwealth) (1993) 44 FCR 312 at 317 per Cooper J and Lovegrove at [24] per Pullin J. This is because the decision-maker (here the Commissioner) would not put such legal advice in issue merely by saying that the advice was relevant or contributed to his decision. There would be no issue waiver because the decision-maker would not have done anything inconsistent with the maintenance of the privilege. The situation might be otherwise if the decision-maker puts the contents of the legal advice in issue by specifically relying on the contents of the advice (and not merely the fact of the advice) to vindicate his claimed state of satisfaction or exercise of discretion.

[bold emphasis added]

82    And at [68]:

In this case, everything turns on the particulars given by the Commissioner in response to Rio’s request. The question is whether, by his particulars, the Commissioner made an assertion as part of his case that puts the contents of the privileged scheduled documents in issue, or necessarily lays them open to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege. To answer this, the relevant assertions must be considered in their proper context.

[bold emphasis added]

83    And at [71] and [72]:

71    By his answers to Rio’s requests, the Commissioner disclosed that the eight privileged scheduled documents were relevant to reaching his state of satisfaction and exercising his discretions. Although the validity of his state of satisfaction and the exercises of his discretion are key issues in the substantive proceeding, as indicated earlier, the mere acknowledgement of the relevance of the privileged documents to the key issues does not amount to an act inconsistent with the maintenance of the privilege. As we have seen, so far as the Commissioner was concerned the relevant inquiry was whether, having regard to the material before the decision-maker, the contested decisions were vitiated on Avon Downs grounds. If the particulars merely disclosed that the Commissioner took into account legal advice in reaching his state of satisfaction and exercising his discretions, then that disclosure would not be inconsistent with the maintenance of privilege.

72    The Commissioner has not, however, simply said that the eight privileged scheduled communications were relevant to reaching his state of satisfaction or exercising his discretions. Nor has he said that he took them into account in so doing. … The Commissioner could have identified his bases for satisfaction and exercises of discretion by listing the matters he took into account in each case, but he did not do so. Instead, he identified his bases for satisfaction and exercises of discretion as the matters evidenced in the scheduled documents. In so doing, the Commissioner did more than make an assertion about the relevance of these communications. In his particulars, the Commissioner has said that he took into account the matters evidenced by numerous documents, including the eight privileged scheduled documents. In so doing, the Commissioner has made an assertion that puts the contents of these eight documents in issue, or necessarily lays them open to scrutiny with the consequence that there is an inconsistency between the making of the assertion and the maintenance of the principle.

[bold emphasis added]

84    In Macquarie Bank Limited v Arup Pty Limited [2016] FCAFC 117 (“Macquarie Bank”), the Full Court (Middleton, Robertson and Gleeson JJ) was concerned with underlying principal proceedings in which BrisConnections Finance Pty Ltd (“BC”), among other entities, contended that Arup Pty Ltd (“Arup”) had engaged in misleading or deceptive conduct (or was negligent) in preparing traffic forecasts on which BC relied in engaging in the development of the Airport Link toll road. Arup filed a cross-claim against Macquarie Bank Limited and others (the “Sponsor Group” or “Group”) seeking to pass on to the Sponsor Group any liability greater than $10 million, in reliance on an Engagement Agreement between Arup and the Sponsor Group that was said to have the effect of capping the quantum of Arup’s liability for the provision of forecasting services (and setting out the circumstances in which BC and other third parties could rely on the traffic forecasts): the cl 17.9 issues.

85    Arup, by its cross-claim, alleged that the Sponsor Group had engaged in misleading and deceptive conduct by making representations that the Group would take all necessary steps to ensure that BC was bound by the limitations of liability reflected in the Engagement Agreement (as between Arup and the Sponsor Group), but took no such steps. Arup also contended that the Group knew that BC had formed the view that no limitation applied but failed to disclose that state of knowledge to Arup. Arup contended that it relied on the (contravening) conduct of the Sponsor Group in performing its services under the Engagement Agreement.

86    In that context, the Sponsor Group (Macquarie) contended that Arup’s understanding of the legal effect of the Engagement Agreement and the extent to which BC (and other third parties) could rely on Arup’s work was a matter at the heart of the controversy. Pursuant to disclosure orders, Arup discovered documents recording, evidencing or referring to advice sought or obtained by it in relation to the Engagement Agreement including any limitation on its liability. Arup asserted legal professional privilege over documents concerning legal advice it received about the Engagement Agreement. It was not clear whether the advice for which privilege had been claimed related to the limitation issue specifically or the legal effect of cl 17.9 generally.

87    Macquarie contended that Arup had waived the legal professional privilege subsisting in documents containing legal advice relating to the legally binding effect on BC (if at all) of cl 17.9 of the Engagement Agreement (and cl 17.9 of a related agreement).

88    In addressing the question of waiver, the Court emphasised at [29] that the focus is upon conduct of the party claiming the privilege said to be inconsistent with maintenance of the confidentiality in the communications over which the privilege is asserted, informed by considerations of forensic unfairness. At [31], the Court observed that a pleading of legal advice may be sufficient to give rise to a waiver of privilege although a pleading is not necessary for waiver to occur. The Court at [32] adopted the observations of Hodgson JA (Campbell JA agreeing) in Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236 at [48], in these terms:

It is not enough to bring about a waiver of client legal privilege that the client is bringing proceedings in which the content of the privileged communications could, as a reasonable possibility, be relevant and of assistance to the other party. For the client to do this is not inconsistent with the maintenance of the privilege, and does not give rise to unfairness of the type in question. What would involve inconsistency and relevant unfairness is the making of express or implied assertions about the content of the privileged communications, while at the same time seeking to maintain the privilege. In this respect, it may be sufficient that the client is making assertions about the client’s state of mind, in circumstances where there were confidential communications likely to have affected that state of mind.

[emphasis added]

89    At [34]-[35], the Court accepted that Arup’s misleading and deceptive conduct claim put in issue Arup’s understanding of the effect of the Engagement Agreement and the extent to which third parties could rely on Arup’s traffic forecasts. However, at [35], the Court observed that it could not be said that the “question of reliance must have been informed by or addressed in the legal advice that Arup received”. The various descriptions of its claim for legal professional privilege did not embrace a claim for privilege “likely or necessarily related to any question of reliance as pleaded in the Cross-Claim” nor could it be said that Arup had necessarily laid open to scrutiny the advice it had received in relation to that matter: [35]. At [37], the Court accepted that Arup’s cross-claim put in issue its state of mind at the time it relied upon the conduct of the Sponsor Group and observed that whilst the privileged documents might be relevant to that state of mind, that fact alone would not give rise to a waiver of privilege. Thus, no waiver of the privilege had occurred.

90    At [38], the Court observed that the facts before the Victorian Court of Appeal in Vic Hotel Pty Ltd v DC Payments Australasia Pty Ltd (2015) 321 ALR 191 were “fundamentally different” to those under consideration in Macquarie Bank. There is little to be gained by examining the factual points of distinction in those cases.

The present application

91    In the principal proceeding, Sunland says that SGL caused SD 22 to purchase the Mermaid Beach land and take other steps in reliance upon that step as a result of the directors having received, read and relied upon a copy of the due diligence report which asserted that a “key element” of the development project’s feasibility was the circumstance that infrastructure credits “would reduce” development costs in the order of approximately $19 million and that “clarification” of the “currency” of the credits had been sought from the Council which had provided a formal letter assuring the availability of the credits.

92    The matter of the availability of the credits and the value of the credits including the contextual matters relating to those issues were the subject of the discussions between Sunland and the Council’s representatives on 1 September 2014 and 22 September 2014 at which the lawyers were present. Legal advice plainly enough was sought in relation to those key matters. Sunland has identified text in the due diligence report acknowledged to be relevant to the issues raised by the controversy and since Sunland pleads reliance on the due diligence report as a central element of its cause of action, and the directors each assert reliance on it as a question of fact, the content of the text is itself relevant and in controversy on the issue of reliance.

93    By the pleading and the affidavits the directors have expressly said that they relied upon the content of the due diligence report including the text which is now sought to be redacted on the ground of legal professional privilege. This is not simply a case of a reference, in any general sense, to legal advice. Rather, it is a case in which the guiding minds of Sunland have said affirmatively that they read and relied upon the due diligence report as a central matter in the cause of action Sunland now asserts. It seems to me to be inconsistent with the maintenance of the privilege to say, on the one hand, that Sunland (its directors and management) expressly relied upon the text of the document, that is, the very content which is now redacted and, on the other hand, to assert legal professional privilege over that part of the text upon which the directors relied in making a decision to proceed with the purchase. In the sense in which reference to fairness is made in Mann v Carnell, the position adopted by Sunland confers an unfair forensic advantage upon Sunland in relation to the cause of action it asserts against the Council.

94    Sunland’s essential proposition is that we will tell you, the Council, as a question of fact that we relied upon the content of the text (now redacted as a matter of legal professional privilege) and we assert against you the immunity we enjoy (in the Daniel’s sense) in that content so as to deprive you of the forensic opportunity to test our claims the subject of the litigation.

95    For these reasons, applying the essential principles derived from Mann v Carnell, Expense Reduction and Osland as informed by the discussion in Commissioner of Taxation v Rio Tinto Ltd, and Macquarie Bank, Sunland has waived the legal professional privilege subsisting in the content of the text now redacted from the due diligence report. It has done so because it has expressly put in issue reliance, that is, its state of mind in acting upon the contended representations and it has expressly referred to a document which informed the state of the guiding minds of the corporation engaging with content about key issues informing the decision to purchase the land. The content informing that decision included, expressly, the redacted content. By reason of the inconsistency Sunland has impliedly waived privilege in the redacted text.

96    Accordingly, the Council succeeds on para 1 of its application, that is to say, all versions of the due diligence report.

97    As to para 2 of the Council’s application, Sunland says that the resolution of the waiver point concerning the various due diligence report(s) does not resolve matters in relation to the 16 documents at pp 22-23 of AMA-06 of Mr Alcock’s affidavit of 14 April 2021. As mentioned earlier, the Council chose not to address particular contentions directed to the basis upon which Sunland’s claims of legal professional privilege over the para 2 documents could not be sustained. It took that course on the basis that Sunland’s submissions did not seek to make any point of distinction as between the para 1 and para 2 documents with the result that the Council’s primary submission is that if it succeeds in relation to the para 1 documents, the resolution of the waiver point as to those documents also results in a demonstrated waiver of privilege in relation to the para 2 documents.

98    Sunland contests that position.

99    I accept that Cardno was acting as Sunland’s agent from at least 1 September 2014 when engaging with the Council concerning matters arising in relation to the development of the Mermaid Beach land.

100    I am also willing to accept that to the extent that Cardno was so acting as Sunland’s agent to assist it in engaging with the Council to resolve issues arising in relation to the development of the Mermaid Beach land (and particularly issues relating to the scope of the preliminary approval, the basis upon which credits might be available for a development falling within the scope of the preliminary approval and the quantum of those credits), Cardno was acting as Sunland’s agent in causing communications to occur between Hickey Lawyers and Cardno (metaphorically standing in the shoes of Sunland) about aspects of those topics.

101    Those communications are now said to be subject to legal professional privilege. It is not clear to me how the resolution of the waiver question concerning the various due diligence reports also results in a waiver of the privilege concerning each of the para 2 documents.

102    The circumstances concerning each document and the basis upon which a waiver of the privilege is said to have arisen needs to be considered. The para 2 documents have dates ranging from an email of 26 August 2014 to a file note of 25 September 2014. The resolution of the issue concerning the due diligence report attached to the emails described at [2] of these reasons will not resolve whether privilege has been waived in, for example, files notes of Hickey Lawyers of 28 August 2014 (Document 2(n)), 16 September 2014 (Document 2(l)) and 1 September 2020 (Document 2(b)).

103    I am not satisfied that the challenge to the para 2 documents on the ground of waiver of the claimed legal professional privilege has been made out. The application by the Council as to those documents is dismissed.

104    The Council will be directed to submit orders to my Associate giving effect to these reasons. The costs of and incidental to the application will be reserved for later determination in accordance with the directions to be made.

Associate:

Dated:    23 November 2021