Legal professional privilege claimed over communications between client and her lawyers
In a case involving alleged contractual breaches and misleading or deceptive conduct, the WA Supreme Court dismissed an application for the production of 12 specific documents involving communications between one of the defendants and the defendants’ solicitors.
The plaintiffs in this case were the companies known as BrazIron Corporate Services Pty Ltd and Safety Barriers (WA) Pty Ltd (SBWA). BrazIron owned and controlled SBWA after acquiring it through transactions executed in July 2016 and December 2017. The defendants were Road Rail and Mine Products Pty Ltd (RRMP) and certain shareholders in SBWA.
The plaintiffs’ action against the defendants requested remedies based on allegations of the following:
BrazIron also wanted an order for the rectification of a transaction instrument. BrazIron argued that the second and third defendants breached a restraint provision in the instrument, including through the establishment of RRMP, which was allegedly competing with SBWA’s business.
The present proceeding revolved around 12 documents containing lawyer-client communications. Legal professional privilege was claimed over these documents. The plaintiffs applied for the production of the 12 documents for their inspection. The plaintiffs alleged a waiver of the privilege otherwise applicable to these communications.
Under their disclosure waiver ground, the plaintiffs argued that the defendants partially disclosed legal advice contained in the documents in the course of the parties’ December 2017 negotiations leading to the execution of a share sale agreement. Maintaining the privilege over these communications would be inconsistent with that disclosure, the plaintiffs said.
Under their issue waiver ground, the plaintiffs alleged that the defendants filed a pleading relating to their state of mind and thus made implied assertions about the content of the documents informing that state of mind. Therefore, these communications were open to scrutiny, the plaintiffs added.
In Braziron Corporate Services Pty Ltd -v- Road Rail and Mine Products Pty Ltd [No 2], [2025] WASC 44, the WA Supreme Court dismissed the application for production.
First, the court ruled that its inherent jurisdiction was broad enough to empower it to inspect documents for the purposes of assessing whether there was a waiver of privilege in a certain document. The rules of the court did not limit that inherent jurisdiction, the court said.
Next, the court deemed it appropriate in the circumstances to exercise its power to require the production of the communications for the purposes of the court’s inspection and the fair disposition of the application. The court went on to inspect the documents.
Regarding the disclosure waiver ground, the court found no discernible legal advice in the 12 documents. What the defendants disclosed – in the form of a marked-up version of a draft revised share sale and purchase agreement found in attachment B in this case – represented the entire written legal advice that the lawyers furnished to their client in this context.
Lastly, in connection with the issue waiver ground, the court refused to order the production of the documents for the plaintiffs’ inspection. The court saw in the communications no discernible legal advice relevant to the defendants’ state of mind.
The court added that it found no discernible legal advice in these documents beyond what the defendants already disclosed in the form of the mark-ups to document 12 found in attachment A in this case.
