Benjamin Charles Kuypers v Ashton Coal Operations Pty Ltd [2015] NSWSC 898

Benjamin Charles Kuypers v Ashton Coal Operations Pty Ltd [2015] NSWSC 898

The first defendant did not establish privilege over document 41 ag because the timing and apparent contemporaneous nature of the note made it not established that it was compiled because of a solicitor's request, and Mr Jones' regular practice of taking detailed notes meant it was not established that the document would not have been created in any event. The remaining documents, including the SAFEgroup ICAM investigation reports, were privileged because the evidence established that they were prepared predominantly for the purpose of enabling legal advice or legal services in relation to possible prosecution or civil damages proceedings. The existence of statutory review obligations...

Jurisdiction
Australia
Judgment Date
02 July 2015
Procedural Posture
Motion Relating to a Claim of Legal Professional Privilege Over Documents Sought Under a Notice to Produce / Interlocutory Procedural Ruling
Outcome
Privilege claim rejected for document 41 ag; privilege claims otherwise upheld; costs in the cause.
Legal Topics
['legal Professional Privilege' 'dominant Purpose Test' 'notice to Produce' 'mine Incident Investigation Reports' 'diary Note Privilege']
['evidence' 'civil Procedure' 'work Health and Safety'] ['legal Professional Privilege' 'dominant Purpose Test' 'notice to Produce' 'mine Incident Investigation Reports' 'diary Note Privilege']

Case Brief

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Procedural Posture

Motion Relating to a Claim of Legal Professional Privilege Over Documents Sought Under a Notice to Produce / Interlocutory Procedural Ruling

Legal Issues

  1. 1 ['Whether the first defendant established legal professional privilege over investigation documents created after the mine incident.' 'Whether document 41 ag, a diary note dated 13 August 2012 written by David Jones, was created for the dominant purpose of obtaining legal advice or legal services.' "Whether the first defendant's statutory obligations under s 28 of the Coal Mine Health and Safety Act 2002 (NSW) meant the SAFEgroup ICAM investigation reports were not prepared for the dominant purpose of legal advice."]

Ratio Decidendi

The first defendant did not establish privilege over document 41 ag because the timing and apparent contemporaneous nature of the note made it not established that it was compiled because of a solicitor's request, and Mr Jones' regular practice of taking detailed notes meant it was not established that the document would not have been created in any event. The remaining documents, including the SAFEgroup ICAM investigation reports, were privileged because the evidence established that they were prepared predominantly for the purpose of enabling legal advice or legal services in relation to possible prosecution or civil damages proceedings. The existence of statutory review obligations...

Court Disposition

Privilege claim rejected for document 41 ag; privilege claims otherwise upheld; costs in the cause.

Orders

  • ['The first defendant to produce document 41 ag as per the attached schedule marked "A" over which it has claimed privilege. Otherwise, all documents over which privilege is maintained, not otherwise waived, are subject to legal professional privilege.' 'Costs are costs in the cause.']