Supreme Court New South Wales Medium Neutral Citation: Mobis Parts Australia Pty Ltd v XL Insurance Company SE [2016] NSWSC 1599 Hearing dates: 4 November 2016 Date of orders: 04 November 2016 Decision date: 04 November 2016 Jurisdiction: Equity - Commercial List Before: Beech-Jones J Decision: (1) On or before 30 November 2016, XL file a rejoinder. (2) The Amended Notice of Motion filed 4 November 2016 be otherwise dismissed. (3) The plaintiff pay the first defendant's costs of the notice of motion. Catchwords: LEGAL PROFESSIONAL PRIVILEGE – communication with expert engineer advising on issues relevant to insurer's liability to indemnify – waiver – inconsistency – insurer's solicitor discloses state of mind on amendment application to raise reliance on exclusion clause – part of explanation for delay – insurer previously granted indemnity for claim based on known circumstances – whether insurer necessarily putting own state of mind in issue in substantive proceedings – whether inconsistency between disclosure on amendment application and maintenance of privilege – inconsistency not established – motion dismissed Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Bailey v Director‑General, Department of Land and Water Conservation [2009] NSWCA 100; (2009) 74 NSWLR 333 Baulderstone Hornibrook v Gordian Runoff [2008] NSWCA 243 Commonwealth of Australia v Temwood Holdings Pty Ltd [2002] WASC 107 DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; 127 FCR 499 Federal Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 Ferella v Official Trustee and Bankruptcy (2010) 188 FCR 68 Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 Mann v Carnell (1999) 201 CLR 1 Merial Inc v Intervet International BV (No 2) [2016] FCA 1070 Mobis Parts Australia Pty Ltd v XL Insurance Company SE [2016] NSWSC 912 Osland v Secretary, Department of Justice [2008] HCA 37; 234 CLR 275 Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002 The Nominal Defendant v Gabriel [2007] NSWCA 52, 71 NSWLR 150 Wayne Lawrence Pty Ltd v Hunt [1999] NSWSC 1044 Category: Procedural and other rulings Parties: Mobis Parts Australia Pty Ltd (Plaintiff/Applicant) XL Insurance Company SE (First Defendant/Respondent) Representation: Counsel: T Mehigan (Plaintiff) DS Weinberger (First Defendant) Solicitors: Ashurst Australia (Plaintiff) McCabes Lawyers (First Defendant) File Number(s): 2015/281297 Judgment 1. HIS HONOUR: By an Amended Notice of Motion filed in Court on 4 November 2016, the plaintiff, Mobis Parts Australia Pty Limited ("Mobis"), seeks access to certain documents produced on subpoena by Costin Roe Consulting Pty Limited, ("Costin Roe") in April 2016. The first defendant, XL Insurance Company SE ("XL") opposes access being granted on the basis the documents are subject of a proper claim for legal professional privilege. 2. Costin Roe was retained in April to June 2015, and then again in early 2016, to provide engineering advice in connection with XL's consideration of whether it was obliged to indemnify Mobis under the relevant insurance policy. At the hearing of the motion it was not in dispute that the documents were, at least at the time of their creation, properly the subject of a claim for legal professional privilege. Instead, Mobis contended that any such privilege has been waived by XL in the circumstances I will describe. 3. It was also common ground on the motion that, as the party making the claim for privilege, XL, was not the same as the party that produced the documents in answer to the subpoena, Costin Roe, then the claim for privilege was not governed by the Evidence Act 1995 (NSW) but by the common law: (see Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002 at [2] to [12]). 4. For the reasons that follow, Mobis has failed to establish the waiver for which it contends. To explain this conclusion, it is necessary to describe the circumstances of the claim and the background to the proceedings in some detail. First, however, it is necessary to identify the documents the subject of the application. As noted, the documents the subject of a motion were produced on subpoena by Costin Roe. There are eleven such documents over which the claim for privilege is maintained (the "privilege documents"). Eight of them comprise communications between 4 May 2015 and 1 June 2015 relating to the first time period in which Costin Roe was retained on behalf of XL (see [6]). The other three documents relate to the second period, namely, from 11 February 2016 to 18 March 2016 (see [14]). Background 1. A warehouse operated by Mobis at Eastern Creek in Sydney collapsed during a storm in April 2015. Mobis claims to have suffered losses totalling over $65 million, which is said to comprise the cost of rebuilding the warehouse, a loss of stock, and business interruption losses. Mobis made a claim for indemnity under an industrial special risk policy of insurance with XL (referred to in the proceedings as the "local policy.") 2. On or about 26 April 2015, XL engaged Crawford & Company, who in turn engaged Costin Roe "…to determine efficacy of original design, plan, specifications, materials and workmanship, ie, any inherent or latent defect under design issues potentially giving rise to recovery considerations." 3. On or about 1 May 2005, Stuart Windybank, a partner with XL's solicitors, was instructed by XL to provide legal advice and legal services in relation to the claim. Mr Windybank has stated that the ambit of his retainer included the provision of advice in relation to whether XL was obliged to indemnify Mobis for its claim. 4. On or about 2 June 2015, Costin Roe delivered a report to XL. As I will explain, that report was disclosed during the course of an amendment application made by XL in June 2016. In their report Costin Roe stated, amongst other matters: "This is a preliminary report as architectural drawings were not provided prior to carrying out our review. These should be provided in due course to allow us to verify all dimensions used in our analysis and issue our finalised report." 1. Later in their report, Costin Roe stated: "Based on the information we have available, and our review of the warehouse and office structural design, it is our opinion that the original structural design as documented on the drawings provided complies with the requirements of the relevant Australian standards." 1. The final conclusion of Costin Roe in its report was as follows: "It is our opinion that the collapse of the warehouse building was a direct result of the hailstorm event which occurred on 25 April 2015. During this storm the superimposed loading due to hailstones, water and ice on the roof greatly exceeded the design loads required in accordance with the Australian standards." 1. On 5 June 2015, XL wrote to Mobis' solicitor. Amongst other matters, XL stated that it "accepts liability under the local policy in respect of the loss, on the basis of the known facts and circumstances, and subject to the applicable terms and conditions." In that same letter, XL contended that the "maximum limit of liability applicable to the loss" was 10 million euros. Subsequently, XL made a payment to Mobis of the Australian dollar equivalent of that sum. Thereafter, it seems that a dispute broke out about the limit of cover provided under the policy. According at least to Mobis, the sum of 10 million euros represented the limit of liability under a different policy of insurance (referred to as the "master policy"). 2. Later in 2015, Mobis filed proceedings in this list seeking declaratory relief and associated orders reflecting its contention that, on the proper construction of the applicable policy, the limit of XL's liability is $AUD72,105,000. In due course, XL filed a response directed to that issue as well as raising a claim for rectification of the local policy. 3. On 19 February 2016, Mobis served reports by a structural engineer and a meteorologist, addressing the issue of the cause of the collapse of the warehouse. Both on this application and on the application to amend to which I referred earlier, Mr Windybank swore an affidavit stating that upon receipt of those reports he had cause to consider whether the warehouse was designed in accordance with the applicable Australian standards. 4. On 22 February 2016 Mr Windybank retained Costin Roe to provide advice in relation to the proceedings, and solely for that purpose. He states that on 25 February 2016 he came to understand that Costin Roe had in fact designed other structures that had sustained damage at Eastern Creek on 25 April 2015. He determined that the preferable course was to retain another engineer, although it does appear that he continued to receive some advice and assistance from Costin Roe. 5. In the end result, in March 2016 Mr Windybank engaged a structural engineer who resided in the USA. The engineer provided a report dated 30 May 2016 which, as I understand it, raised issues about the design of the warehouse sufficient to give rise at least to an arguable basis upon which XL could avoid liability for the claim based upon a design exclusion in the local policy. In the meantime, in April 2016, Costin Roe had produced documents in response to a subpoena which included the Costin Roe privileged documents. Amendment Application 1. On 2 June 2016, XL filed a notice of motion seeking leave to amend its Commercial List response to include a defence that it is not liable to indemnify Mobis because the warehouse had been defectively designed with the result that liability for the claim was excluded in whole or in part by an exclusion clause in the local policy. 2. On 16 June 2016, written submissions were exchanged between the parties concerning the amendment application. XL's written submissions stated, inter alia, that it was not in a position to rely on the design exclusion "until such time as it obtained evidence that a loss was caused by the matters caught by the exclusion such as the failure of the warehouse to comply with the applicable Australian Standards". 3. Mobis' written submissions of the same day made much of the absence of any explanation for the lateness of the amendment application. It submitted, inter alia, that "[t]he absence of any attempt to explain why the Court should exercise its discretion to permit a late amendment which threatens the hearing date should, it is submitted, be fatal for the application." 4. On or about 24 June 2016, Mr Windybank swore an affidavit in support of the amendment application. At paragraph 4 of his affidavit, Mr Windybank set out the effect of a conversation he had had with an officer of XL who had written the letter of 5 June 2015, in which that officer told him that he was "not aware that the Mobis warehouse was subject to faulty or defective design and he was not aware of any facts or circumstances that would have enlivened the faulty or defective design exclusion." 5. In paragraph 6 of his affidavit, Mr Windybank stated: "Prior to the receipt of the reports of Messrs Carolan and Cook, served by Mobis, I did not believe XL had any basis to rely upon the defective design exclusion." 1. Further, in paragraph 10 he stated, inter alia, that: "On 25 February 2016 an engineer from Costin Roe told me that his firm had designed other structures in Eastern Creek and Huntingwood (which is adjacent to Eastern Creek), that had sustained damage on 25 April 2015 due to the weather event that day." 1. As indicated, he explained that as a result of that information he formed the view that it was not appropriate to have Costin Roe prepare a report. 2. On or about 27 June 2016, there was another round of submissions exchanged in support of the amendment application. XL's submissions of that day referred to Mobis' earlier contention that there was no explanation for the timing of the application to amend, and then referred to the statements of Mr Windybank in his affidavit of 20 June 2016 just set out. Those submissions also addressed a contention that it understood that Mobis was putting forward, namely that the principles relating to amendment precluded the withdrawal of an admission and that there was such an admission made by XL in the letter dated 5 June 2015. 3. In response, XL's submissions sought to draw a contrast between a formal admission made in court proceedings and an admission made out of court. They contended that the letter of 5 June 2015 was at most the latter, and that was a matter that had evidentiary force only. 4. Mobis' submissions dated 27 June 2016 addressed in detail Mr Windybank's affidavit. They also addressed the significance of the letter dated 5 June 2015. In one part of the submissions they contended, by reference to the discussion by Allsop P (as his Honour then was) in Baulderstone Hornibrook v Gordian Runoff [2008] NSWCA 243 at [283] to [292], that a grant of indemnity could be both an admission of liability and, of itself, an agreement as to liability under a policy on the terms set out in the letter granting indemnity. Mobis contended that it followed that, if it wanted to withdraw from its "agreement" that the policy responded, XL had to satisfy the court "that it had no knowledge of the material facts and circumstances on which the defective design allegation is now made." 5. The motion seeking leave to amend was heard by Bergin CJ in Eq on 28 June 2016. Apparently, on the morning of the hearing XL served a further affidavit of Mr Windybank which had annexed a copy of the report of Costin Roe dated 2 June 2015 set out earlier. 6. On 1 July 2016 her Honour allowed the amendment subject to conditions, and published reasons (Mobis Parts Australia Pty Ltd v XL Insurance Company SE [2016] NSWSC 912). In that judgment, her Honour recounted the background of the application including the circumstances in which Mr Windybank received the expert's report dated 30 May 2016 as deposed to in his affidavit. Her Honour stated that: "The real issue is whether the defendant is precluded from defending the proceedings on the basis of the faulty design exclusion clause because it has admitted liability and should not be permitted to withdraw that admission." 1. In phrasing the "real issue" in those terms her Honour was reflecting a submission that was made by Mobis. Her Honour recounted the submissions made by Mobis including the submissions that there was: "No new fact or circumstance that would warrant the defendant withdrawing its admission." 1. Her Honour also recounted XL's contentions that it had "…received the opinion of Mr Simons and indeed the opinion of Mr Carolan which changes the known circumstances which existed at the time that he had admitted liability." 2. Her Honour concluded as follows: "27 I am satisfied that there is a seriously arguable case that the receipt of the expert opinions both from the plaintiff and from its own expert that differ from Costin Roe's opinion in its preliminary report is a change in circumstance to that which existed at the time the defendant admitted liability. In considering the relevant matters under s 58 of the CPA, I am satisfied that justice dictates that the defendant should not be shut out from having this matter litigated, subject to (as the defendant accepts it must be) the plaintiff being entitled to claim that the defendant is estopped from relying upon this defence in the circumstances. Orders 28 The defendant is granted leave to file and serve an Amended Commercial List Response which includes a defence in reliance upon clause 3.2.1 (a) of the Policy. Such leave is conditional upon the amendment conditions to which the defendant has consented. The defendant is to pay any costs thrown away by reason of the amendment." 1. The "amendment conditions" which her Honour referred to in [28] included conditions which permitted Mobis to plead a case of waiver, fraud and estoppel if it so chose. 2. What emerges from the course of events that led to her Honour's judgment is that the affidavit of Mr Windybank sworn on 24 June 2016 was clearly put forward by XL as part of its explanation for the delay in making the application for the amendment, that being a matter specifically raised in Mobis' submissions dated 16 June 2016. The contention that the amendment should be refused because the letter of 5 June 2015 was an admission of liability which in itself amounted to a binding agreement, was put forward by Mobis not by XL, although XL did respond by pointing to the difference between the Costin Roe report of 2 June 2015 and the report of 30 May 2015 prepared by the expert from the United States. 3. In resolving that dispute, her Honour did not accept the contention of Mobis that it was incumbent on XL to demonstrate it had "no knowledge of the material facts and circumstances on which the defective design allegation is now made". Instead her Honour considered it simply sufficient that they had received a different expert's report to the Costin Roe opinion provided in June 2015. In any event, it needs to be borne in mind what the "case" that XL was putting forward in support of its amendment application was, namely, that it should be allowed to plead reliance upon an exclusion clause because it had come into possession of a report that raised an arguable basis for relying on that clause and it explained why it had not sought to do so previously. Pleadings 1. After the publication of her Honour's judgment, XL filed an amended commercial list response which pleaded reliance upon the exclusion clause concerning the allegedly defective design of the warehouse. Mobis filed then an amended commercial list summons which added two parties. It contended, inter alia, that if XL was entitled to rely upon the exclusion for faulty design, it was nevertheless entitled to seek indemnity under the master policy for a particular level of cover. 2. On or about 7 October 2016, Mobis filed an amended reply to the commercial list response. The amendments took up the conditions upon which XL was allowed to amend its defence. In particular, the amended reply pleaded various facts and circumstances known to Mobis concerning the retention of Costin Roe and the provision of a letter of 5 June 2015. They pleaded that that letter constituted an admission of liability under the local policy, an admission that the design of the warehouse was compliant with the relevant standards and a settlement subject to the resolution of a dispute about the limit of liability of the claim for indemnity. Mobis also pleaded that XL's actions amounted to a waiver and that its attempted reliance upon the exclusion clause for faulty design was a breach of its duty of utmost good faith. 3. To date, XL has not been ordered to file any pleading in response to that reply, such that they are simply taken as joining issue with those assertions. Principles 1. The operative principle concerning the form of waiver argued by Mobis was stated by Gleeson CJ, Gaurdon, Gummow and Callinan JJ in Mann v Carnell (1999) 201 CLR 1 at [29] as follows: "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." 1. Further, in determining whether conduct by the holder of legal professional privilege gives rise to the relevant inconsistency, consideration needs to be given to the context in which the relevant conduct occurred and the reason for any disclosure if disclosure is relied upon (Osland v Secretary, Department of Justice [2008] HCA 37; 234 CLR 275 at [46] per Gleeson CJ, Gummow, Heydon and Kiefel JJ). 2. In applying these principles, a number of authorities have considered the contention that an implied or imputed waiver arises because a party has raised their own state of mind as an issue in proceedings and that state of mind may have been formed by material the subject of a claim by that party for legal professional privilege. 3. Three matters need to be noted about that circumstance. First, the focus of the inquiry as to an inconsistency concerns the conduct of a holder of the privilege (see for example Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 95 to 96). Thus the privilege cannot be lost simply because another party to the litigation raises an issue concerning the privilege holder's state of mind. (DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 384; 127 FCR 499 at [96] per Allsop J); Bailey v Director‑General, Department of Land and Water Conservation [2009] NSWCA 100; (2009) 74 NSWLR 333 at [4] and [6]. Further, a mere denial of an allegation as to a state of mind by the holder of a privilege is not sufficient to waive privilege over material that may have contributed to the state of mind that is asserted (DSE at [114] per Allsop J). 4. Second, the question of waiver is not resolved by simply asking whether the holder of the privilege puts their state of mind in issue. Instead it requires consideration as to whether they have put the contents of the otherwise privileged information in issue (see Federal Commissioner of Taxation v Rio Tinto Limited (2006) 151 FCR 341 at [65]; Ferella v The Official Trustee and Bankruptcy (2010) 188 FCR 68 at [65]. This is a matter of degree to be assessed in the circumstances of each case (see Wayne Lawrence Pty Ltd v Hunt [1999] NSWSC 1044 at [11] to [12] per Hodgson CJ in Eq; DSE at [102]). 5. Third, it is necessary to note the different means by which a party may put forward an assertion that raises an inconsistency. It can arise from the contents of the pleadings, however it can also arise from an evidentiary assertion or even a final submission. As noted, it is only the conduct of the holder that is relevant and a waiver cannot be forced upon them by a mere assertion of their state of mind (see Commonwealth of Australia v Temwood Holdings Pty Ltd [2002] WASC 107 at [10]; DSE at [121]). Disposition 1. Mobis made two principal but related contentions in support of its claim that, by its conduct, XL impliedly waived legal professional privilege over the Costin Roe privilege documents. First, Mobis contended that, consistent with the manner in which the amendment application proceeded before Bergin CJ in Eq, it is a necessary aspect of XL's case that it demonstrate that there is some fact or circumstance that became known to it after it sent the letter of 5 June 2015 that was not known to it prior. Thus, in paragraph 42 of its submissions on the motion, Mobis contended: "The wider point is that in seeking to resile from the admission in the letter of 5 June 2015 and raised the defective design issue, XL must demonstrate the qualifications the admissions is relevantly engaged, XL must show that the basis on which the defective design allegation is brought, rests on facts and circumstances on which it had no knowledge." 1. Mobis contended that, given the centrality of Costin Roe to the formation of the opinion recorded in the letter of 5 June 2015 and its potential role in the events that led to that opinion being revised, that it is inconsistent for XL to pursue a case that seeks to avoid the admission made in that letter while at the same time obtaining legal professional privilege over the Costin Roe privilege documents. 2. Second, Mobis also contended that XL's conduct in putting forward the statements in Mr Windybank's affidavit that have been extracted above as well as disclosing the Costin Roe opinion of 2 June 2015 was also inconsistent with its maintenance of legal professional privilege over the other communications constituted by the Costin Roe privileged material. 3. This is best illustrated by the following examples given in its written submissions: 38. First, the affidavit of Mr Windybank sworn 28 June 2016 (by which the disclosure of the June 2015 report took place) made the observation that CCTV footage served by Mobis and referred to by Mr Carolan depicted hail depth of 'significantly less than the hail depth of 200 millimetres and up to 500 millimetres reported in the report of Costin Roe' (paragraph 4). 39. The point Mr Windybank seemed to be making is that the imposed load on the warehouse may have been considerably less than the load suggested by the Costin Roe. It is unfair for XL to produce one privileged document which, it apparently will be contended, may have given XL a misleading impression of the imposed loads on the warehouse without permitting Mobis to investigate the whole body of the communications which may contain further information bearing on that point. 40. Second, it is asserted XL only became aware (through Mr Windybank) that Costin Roe designed other structures in the Eastern Creek/Huntingdon area in late February 2015. 41. Presumably, Costin Roe was first instructed by Crawfords precisely because the firm was considered reputable with relevant experience in the design considerations applicable to warehouse structures. In these circumstances, it would be unfair for XL to maintain an assertion that it acquired knowledge at a particular point in time and, at the same time, maintain privilege over the communications which may bear on its knowledge on that topic." (emphasis added) 1. I do not accept these contentions. In relation to the first, I have summarised the structure of the pleadings filed after the judgment of Bergin CJ in Eq above. The current state of the pleadings is such that the only party making an assertion about XL's state of mind is Mobis. It does so in those parts of its amended reply to which I have referred. XL has impliedly joined issue on that reply but of itself that is not a enough to constitute a waiver (see DSE at [114]). 2. Counsel for Mobis pointed to that part of [27] of the judgment of Bergin CJ in Eq extracted above as support for the proposition that, it inevitably follows from the allowance of the amended application, that XL would be required to demonstrate a change in circumstances to avoid a liability being imposed pursuant to an agreement said to have been formed by its letter of 5 June 2015 and that necessarily required it to demonstrate its state of mind. I do not agree. I read that part of her Honour's judgment as rejecting a contention that the proposed amendment should be refused as futile because the letter of 5 June 2015 was said to be a complete answer to XL's reliance on the proposed exclusion clause. What follows from that conclusion in terms of the issues raised is a matter for the parties. 3. Throughout the application to amend, XL never sought to raise its own state of mind as a substantive issue to be determined. As I have explained, it always sought to simply rely on an exclusion clause. The amendments made in its commercial list response reflected that. Instead, Mobis seeks to rely on the letter of 5 June 2015 as a basis upon which XL is bound to indemnify. This is what is reflected in its amended reply. XL's substantive response to that assertion is not yet known. It may be that it might provide a response that does not put in issue its own state of mind, much less provide a response that puts the contents of the Costin Roe privileged documents in issue (see Ferella). For example, XL may seek to argue that the letter of 5 June 2015 does not constitute a form of agreement in the sense discussed in Baulderstone but instead only constituted an admission in an evidentiary sense (see The Nominal Defendant v Gabriel [2007] NSWCA 52; 71 NSWLR 150 at [113]). This was certainly the approach it adopted in its written submissions on the amendment application. If that were the only approach to be adopted in the hearing, it would not involve XL making any assertion expressed or implied about its state of mind much less any assertion about the contents of the Costin Roe privileged documents. 4. In his oral submissions in reply, Counsel for Mobis contended that this outcome is unsatisfactory in that if it was accepted it would mean that the notice of motion should be adjourned to await XL formulating its response to Mobis' reply. I disagree. 5. As I have already explained, a party can put in issue its state of mind at different stages of a litigation. Subject to being ordered to take some particular step, a party cannot be forced to confront the consequences of a forensic choice to place its state of mind in issue. To this time, XL has not yet been forced to identify the manner in which it will run its case in respect of the contentions in Mobis' reply. Until it had done so no question of any inconsistency giving rise to a waiver of legal professional privilege has been established. 6. Some of the steps necessary to force a choice on a party cannot be done in advance of a trial. Thus, for example, an assertion at least as to the party's state of mind might be made by simply inviting the Court to draw an inference about the facts and circumstances that are being referred to in the letter of 5 June 2015. Usually invitations to draw inferences are not made until the hearing and often towards the end. However, other choices can be forced upon a party. In this regard I consider it appropriate to require XL to file a rejoinder to the reply so that its response, at least at the level of a pleading, to the matters raised in the reply can be ascertained. 7. As noted, the other basis upon which Mobis claimed implied waiver concerned the manner in which XL conducted its application to amend and specifically its reliance upon Mr Windybank's affidavit of 24 June 2016 and its later disclosure of the report dated 2 June 2015. 8. Only one part of Mr Windybank's affidavit made any expressed reference to communications with Costin Roe being para 10 (see [21]). If a call had been made for any material concerning the communication that is referred to in that paragraph, I expect it would have been difficult to resist if for no other reason than the terms of that paragraph removed the confidentiality of the communication. Otherwise irrespective of its context, to make such a specific disclosure is and of itself inconsistent with the maintenance of a legal professional privilege of the communication referred to. 9. However, as I understand it the Costin Roe privileged documents do not record or contain the communication referred to in paragraph 10 of Mr Windybank's affidavit. Otherwise, paragraphs 4 and 6 of Mr Windybank's affidavit do not contain any expressed reference to Costin Roe, although it is perhaps arguable that in context that they amount to an assertion that Costin Roe did not at least advise Mr Windybank or the representative of XL that there was any difficulty with the design of the warehouse. Nevertheless it is the purpose and context in which these assertions were put forward that is critical (see Osland at [46]). They were not put forward as a means of avoiding the legal consequences of the admission letter, that was a matter raised by Mobis. Instead, they were put forward simply as part of the explanation for the delay in bringing forward the amendment seeking to rely on the exclusion clause. 10. Given the limited purpose for which they were put forward, I am not satisfied that any inconsistency arises between the disclosure of the 2 June 2015 report or the assertions in Mr Windybank's affidavit on the one hand and the maintenance of the privilege in the balance of the Costin Roe privilege documents on the other. 11. The answers to paras 38 to 41 of Mobis' submissions extracted above at [46] is that Mr Windybank was not making any of the "points" or the "assertions" that are referred to therein. Instead, he was doing no more or no less than explaining why the amendment was being sought when it was. There was no "unfairness" occasioned of Mobis by the disclosure of that material in the course of making an amendment application where it has been put forward for that limited reason. If there had been "unfairness" giving rise to an inconsistency, then it could have been expected that at that point Mobis could have sought access to the material. Further, nothing that has happened since the amendment application was granted changes this position. To date, XL has not sought to deploy the 2 June 2015 report, repeat the assertions in Mr Windybank's affidavit or done anything to put its state of mind in issue in the proceedings much less put in issue the contents of the Costin Roe privileged documents. 12. Mobis placed particular reliance on the decision of Moshinsky J, Merial Inc v Intervet International BV (No 2) [2016] FCA 1070 ("Merial"). In Merial during the course of the hearing, Moshinsky J ruled that legal professional privilege had been waived over certain documents consisting of communications between a US law firm acting for the appellant and a witness in relation to the subject matter of the proceedings in circumstances where other such communications on that subject and between those parties had previously been disclosed on an amendment application. His Honour noted the subject matter of the communications comprising the documents over which privilege was claimed was "essentially the same character as the communications" in respect of which privilege had previously been waived (at [17]). Having found that, his Honour concluded that there was a waiver because the appellant have relied on the disclosed documents "to advance its case in the proceedings" specifically it employed them in support of the application for leave to amend and referred to that material in the particulars in its notice of appeal (at [18]). 13. I do not understand that Merial stands for the broad proposition that the deployment of privileged material on the application to amend necessarily waives privilege on all the related material which is sought either before or after the amendment was granted. At least in the context of considering whether there is a relevant inconsistency, it is relevant and perhaps critical to inquire into why the material was deployed on the application to amend and if the amendment is granted, whether any such inconsistency pertains. In Merial, the particularisation of the material in question in the notice of appeal suggested that the inconsistency pertained after the amendment was granted. In this case, the disclosure of the privileged material occurred as part of an explanation for the delay in bringing forward the amendments. Otherwise, for the reasons already noted, no inconsistency presently pertains in relation to the matter in which it is known that XL proposes to propound its case. 14. It follows from these conclusions that Mobis has failed to demonstrate that privilege has been waived over any of the Costin Roe privileged documents. This conclusion renders it unnecessary to consider the balance of XL's points which principally concerns the differences between the litigant merely putting their state of mind in issue and whether they directly or indirectly put in issue the contents of otherwise legally privileged information. It was also contended that the Costin Roe privileged documents that dated from 2016 were in any event completely irrelevant even if one accepted the basis of waiver as put forward by Mobis. Conclusion 1. It follows from what I stated that I will order XL to file a rejoinder to Mobis' reply but that otherwise the notice of motion will be dismissed. 2. Accordingly, the Court Orders that: 1. On or before 30 November 2016 XL to file a rejoinder. 2. The amended notice of motion filed 4 November 2016 be otherwise dismissed. 3. The plaintiff pay the first defendant's costs of the notice of motion. ********** Amendments 15 November 2016 - Minor typographical amendments to paras [37] and [41] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2016