DBCT Management Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd and Geosea Australia Pty Ltd Joint Venture

• Jurisdiction: Australia Federal only
• Judgment Date: 14 May 2021
• Neutral Citation: [2021] FCA 512
• Court: Federal Court
• Date: 14 May 2021

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

File number:	NSD 100 of 2017
Judgment of:	ABRAHAM J
Date of judgment:	14 May 2021
Catchwords:	SUBPOENA – Legal Professional Privilege – where documents prepared following cyclone incident – whether the documents were prepared for the dominant purpose of anticipated litigation – whether Legal Professional Privilege attaches to the documents
Legislation:	Evidence Act 1995 (Cth) s 75
Cases cited:	Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796 Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2)[2011] FCA 1057;(2011) 283 ALR 299 AWB Ltd v Cole[2006] FCA 571; (2006) 152 FCR 382 AWB Ltd v Cole (No 5) [2006] FCA 1234;(2006) 155 FCR 30 Barnes v Commissioner of Taxation [2007] FCAFC 88; 242 ALR 601 Commissioner of Taxation v Pratt Holdings Pty Ltd [2003] FCA 6;(2003) 195 ALR 717 Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 District Council of Mallala v Livestock Markets Ltd [2006] SASC 80;(2006) 94 SASR 258 Ensham Resources Pty Ltd v AIOI Insurance Company Ltd [2012] FCAFC 191;(2012) 209 FCR 1 Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49 Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 Grant v Downs (1976) 135 CLR 674 Hancock v Rinehart (Privilege) [2016] NSWSC 12 Hartogen Energy Ltd (in liq) v Australian Gaslight Co (1992) 36 FCR 557 Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 Kirby v Centro Properties Ltd (No 2)[2012] FCA 70; (2012) 87 ACSR 229 Martin v Norton Rose Fulbright Australia[2019] FCA 1101 Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59;(2002) 4 VR 332 Morton v Bolinda Publishing Pty Limited[2017] FCA 187 National Crime Authority v S (1991) 29 FCR 203 Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (No 5) [2012] FCA 1226 Powercor Australia Ltd v Perry [2011] VSCA 239; (2011) 33 VR 548 Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122;(2004) 136 FCR 357 Re Southland CoalPty Ltd (receivers and managers appointed) (in liq) [2006] NSWSC 899; (2006) 203 FLR 1 Seven Network Ltd v News Ltd [2005] FCA 1551; (2005) 225 ALR 672 Seven Network Limited v News Limited [2005] FCA 142 Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380 Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 Waterford v The Commonwealth (1978) 163 CLR 54 Westminster Airways Ltd v Kuwait Oil Co Ltd [1951] 1 KB 134 Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529
Division:	General Division
Registry:	New South Wales
National Practice Area:	Admiralty and Maritime
Number of paragraphs:	112
Date of hearing:	4 February 2021
Counsel for the Applicants:	Mr E Cox SC with Mr J Kennedy
Solicitor for the Applicants:	Wotton + Kearney
Counsel for the First Respondent:	Mr S Lawrance
Solicitor for the First Respondent:	Thynne & Macartney
Counsel for the Second Respondent:	Mr P Holmes
Solicitor for the Second Respondent:	Kennedys
Solicitor for the Third Respondent:	Ms A Ramachandran of Lander & Rogers
Counsel for the Subpoenaed Entities:	Mr C Colquhoun with Mr B Smith
Solicitor for the Subpoenaed Entities:	Holman Fenwick Willan

ORDERS

		NSD 100 of 2017
BETWEEN:	DBCT MANAGEMENT PTY LTD ACN 097 698 916 First Applicant ; DALRYMPLE BAY COAL TERMINAL PTY LTD ACN 010 268 167 Second Applicant
AND:	MCCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD AND GEOSEA AUSTRALIA PTY LTD JOINT VENTURE First Respondent ; WORKBOATS NORTHERN AUSTRALIA PTY LTD Second Respondent ; CORTLAND COMPANY AUSTRALIA PTY LTD ACN 055 288 321 Third Respondent

order made by:	ABRAHAM J
DATE OF ORDER:	14 may 2021

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. ByasubpoenaservedonAshurstAustralia(Ashurst)on6November2020(Ashurst Subpoena), DBCT Management Pty Ltd (DBCT Management) and Dalrymple Bay Coal Terminal Pty Ltd (DBCT) (the applicants) sought productionof:

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 (Attachment1);

2. ICAM Analysis (Attachment2);

3. Aurecon Memorandum – 26.05.2014 (Attachment3);

4. Bullivants Inspection Report – 10.04.2014 (Attachment4);

5. PEEPO (‘People Environment Equipment Procedures Organisation’ Attachment5).

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 theproceeding. 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...