Aquasure Pty Ltd v Thiess Pty Ltd & Ors (No 2)  
[2022] VSC 389 (12 July 2022)  
Last Updated: 12 July 2022  
IN THE SUPREME COURT OF VICTORIA Not Restricted  
AT MELBOURNE  
COMMERCIAL COURT  
COMMERCIAL LIST  
S ECI 2018 02258  
AQUASURE PTY LIMITED (ACN 135 956 393)  
v
Plaintiff  
Defendants  
THIESS PTY LIMITED (ACN 010 221 486) & ORS  
(according to the attached Schedule)  
---  
JUDGE  
Steffensen AsJ  
Melbourne  
:
WHERE HELD  
:
DATE OF HEARING  
:
17 November 2021  
DATE OF RULING  
:
12 July 2022  
CASE MAY BE CITED AS  
:
Aquasure Pty Ltd v Thiess Pty Ltd & Ors (No 2)  
MEDIUM NEUTRAL CITATION  
:
[2022] VSC 389  
---  
PRACTICE AND PROCEDURE – Production – Claims of privilege - Legal professional  
privilege – Litigation privilege – Settlement negotiation privilege – Adequacy of evidence -  
Dominant purpose – Use of the phrase ‘without prejudice’ – Discretion to inspect – Evidence  
Act 2008 (Vic) ss 118, 119, 131 and 133.  
APPEARANCES  
:
Counsel  
Solicitors  
For the Plaintiff  
No appearance  
For the First and Second  
Defendants  
Lander & Rogers  
Mr P H Solomon QC with  
Mr R Minson  
For the Third Defendant  
Mr A McClelland QC with Mr A  
Christophersen  
Kennedys (Australasia)  
Pty Ltd  
Contents  
HER HONOUR:  
A Introduction  
1. This is a ruling in respect of a claim by the Thiess Degrémont Joint Venture (TDJV), a  
joint venture by the first and second defendants, Thiess Pty Limited (Thiess) and Suez  
Water Pty Limited (Suez), that 164 documents are privileged from production, either in  
whole or in part. The third defendant, Siemens Limited (Siemens), challenges the  
TDJV’s claim of privilege. The plaintiff, Aquasure Pty Limited, does not challenge the  
TDJV’s claim of privilege and was excused from attending the hearing.  
2. This is the second privilege claim in these proceedings that has been referred to me for  
determination. The proceedings concern liability for loss suffered in respect of a  
‘flashover’ event at the Victorian desalination plant (Incident). A short description of  
the nature of the proceedings S CI 2017 05135 and S ECI 2018 02258 to which the TDJV  
and Siemens are party is set out at [1]-[4] of my ruling dated 25 August 2021 (First  
[1]  
Ruling).  
3. My First Ruling addresses Siemens’ challenge to privilege claimed by the TDJV in  
redactions it had made to two reports prepared by the engineering consultancy firm,  
Tractebel, in the aftermath of the Incident. I determined that despite inadequacies in the  
[2]  
evidence adduced by the TDJV, I was satisfied that the documents were privileged  
under ss 118 and 119 of the Evidence Act 2008 (Vic) (Evidence Act), but that the TDJV  
had acted inconsistently with maintaining privilege over the documents and that thereby  
any privilege had been waived.  
4. In support of its current claim for privilege, the TDJV primarily relies upon the affidavit  
[3]  
of Mike Krsticevic filed on 27 September 2021 (Krsticevic 3). Mr Krsticevic is the  
Senior Legal Counsel and Company Secretary of Suez.  
5. By this evidence, the TDJV identifies seven categories of privilege. Categories 1 to 3 are  
[4]  
in relation to an issue described in Krsticevic 3 as the ‘Cable Issue’. Category 1 are  
claims under s 131 of the Evidence Act for settlement negotiation privilege. Category 2  
are claims under s 118 of the Evidence Act for legal advice privilege. Category 3 are  
claims under s 119 of the Evidence Act for litigation privilege. Categories 4, 5 and 6 are  
claims under ss 118, 119 and 131, respectively, of the Evidence Act in relation to the  
Incident. Category 7 includes documents which are attachments to communications  
within Categories 1 to 6.  
6. Exhibit MK-6 to Krsticevic 3 is entitled ‘Schedule – Privilege Claim Documents’ (MK-6).  
It lists the documents the subject of the TDJV’s claim for privilege by their document  
identification number (ID) and document date. MK-6 identifies whether privilege is  
claimed in full or in part, and which of the seven categories have been assigned by the  
TDJV to the document. The document IDs for any host or duplicate documents are also  
listed.  
7. Whilst MK-6 was prepared by the TDJV’s external counsel, Mr Krsticevic has reviewed  
MK-6 and each of the documents listed within it and adopts the assessments set out in  
MK-6 as his own, stating:  
Based on my own involvement in, and knowledge of, events,  
communications and documents relevant to these proceedings, I agree  
[5]  
with the assessments and adopt them as my own.  
8. In addition, the TDJV relies upon Mr Krsticevic’s first affidavit sworn on 21 June 2021,  
which was filed in support of the privilege claim the subject of the First Ruling, its  
written submissions filed on 20 October 2021, and a document entitled ‘Schedule of  
Annexure A Privileged Documents’ (TDJV’s Schedule), which was filed on 27  
September 2021 pursuant to order 10(a) of the orders of Stynes J on 13 August 2021.  
TDJV’s Schedule was also provided to the Court in Excel format.  
9. The TDJV’s Schedule sets out the same information contained in MK-6, save that it  
identifies the section or sections of the Evidence Act in respect of which privilege is  
claimed and does not identify which of the seven categories of privilege are said to apply  
to each document.  
10. In opposition to the TDJV’s claims of privilege, Siemens relies upon written submissions  
filed on 1 November 2021, and the affidavits and witness statements identified in [3] of  
those submissions. The affidavits and witness statements are largely relied upon for the  
question of waiver.  
11. Siemens’ written submissions have the following three annexures:  
(a) Schedule A, being a spreadsheet identifying each of the documents in respect  
of which the TDJV claims privilege and combines the information from Krsticevic  
3 and the TDJV’s Schedule. Siemens’ Schedule A also sets out information  
obtained from the metadata disclosed by the TDJV in respect of the documents,  
such as the document type (such as email, attachment, Adobe PDF format), title,  
[6]  
author and recipients. Schedule A also refers to hundreds of documents over  
which the TDJV initially claimed privilege, but has since determined to produce to  
Siemens. Schedule A was also provided to the Court in Excel format;  
(b) Schedule B entitled ‘Claims For Privilege Which Are Not Maintainable’ which  
identifies Siemens’ particular contentions in relation to individual documents in  
[7]  
respect of which Siemens challenges the TDJV’s claims to privilege. Siemens’  
counsel advised that privilege is not challenged in respect of documents not listed  
[8]  
on Schedule B. Siemens tendered a 356 page bundle of documents referred to in  
Schedule B; and  
(c) Schedule C entitled ‘Chronology’, being a chronology prepared in relation to  
[9]  
the Incident. Siemens tendered a 248 page bundle of the documents referred to  
in Schedule C.  
12. In response to a request by the Court for the TDJV to identify any disagreement with the  
contents of Schedule A, on 12 November 2021 the solicitors for the TDJV provided a  
revised version of Schedule A in Excel format. It contains the information in Siemens’  
Schedule A in respect of the 164 documents which are the subject of the current privilege  
dispute. The entries for the documents which are not the subject of dispute were deleted.  
B List of Disputed Documents  
13. I have prepared a List of the Disputed Documents which will be provided to the parties  
in Excel format. The List of Disputed Documents contains the information from the  
following columns from the TDJV’s version of Schedule A:  
(a) Columns A, B, and D to K of Schedule A, being the document ID and associated  
metadata for the disputed documents;  
(b) Column M of Schedule A entitled ‘Privilege’ which notes whether privilege is  
claimed in full or for only part of the document;  
(c) Column O of Schedule A entitled ‘Prv. Category’, which notes which of the  
[10]  
TDJV’s Categories 1 to 7 is claimed in respect of each document;  
(d) Column P of Schedule A entitled ‘Evidence Act’, which lists the sections of the  
Evidence Act under which privilege is claimed for each document (i.e. ss 118, 119,  
and/or 131); and  
(e) Column Q of Schedule A entitled ‘MK Affidavit Ref’, which identifies the  
paragraphs of Krsticevic 3 that specifically refer to the document.  
14. In a number of cases, the information provided by the parties in this column contained  
errors. These errors are noted in red font.  
15. The List of Disputed Documents includes the following additional columns:  
(a) Column O entitled ‘Siemens’ Schedule B Row Reference’, which lists the row  
number in Siemens’ Schedule B which addresses the document;  
(b) Column P entitled ‘Duplicates’ which identifies any duplicates as set out in the  
TDJV’s Schedule;  
(c) Column Q entitled ‘Ruling’, which sets out my decision with respect to each  
document;  
(d) Column R entitled ‘Short Reasons’ which gives short reasons for my decision;  
and  
(e) Column S entitled ‘Ruling Following Inspection’, which gives my ruling  
following the inspection of documents claimed to be privileged.  
C Principles  
C.1 Evidence Act, ss 118 and 119 – Legal advice and litigation privilege  
16. In the First Ruling at [19]-[24], I set out the applicable principles to claims under ss 118  
and 119 of the Evidence Act, which equally apply to the present dispute.  
17. I will, however, emphasise the following matters referred to therein.  
18. Where there are multiple purposes for which a document was created or a  
communication sent, the Court must be satisfied that the privileged purpose was the  
dominant purpose of the document or communication. Where a document or  
communication is required for privileged and non-privileged purposes, this may require  
the privilege-holder to explain how non-privileged purposes have been fulfilled outside  
of the communication and document for which privilege is claimed.  
19. For example, in Perry v Powercor Australia Ltd (Perry v Powercor),  
[11]  
Powercor  
claimed privilege over expert reports into the cause of the fire the subject of the  
proceeding. Powercor claimed that the dominant purpose in obtaining the reports was to  
allow its in-house solicitors to provide it with legal advice and to use the reports in  
anticipated legal proceedings against it. The Court identified a number of purposes for  
which the reports may have been commissioned, many of which are not privileged.  
Robson J found that Powercor had failed to adequately explain the reasons why it  
obtained the reports in view of the many different purposes for which it needed the  
report. No evidence was led by Powercor regarding any of these other business uses for  
the reports, its internal procedures, or legal obligations that would have required or  
made use of the information in the report. Thus, the Court was not in a position to  
[12]  
determine whether legal advice or litigation was the dominant purpose of the reports.  
20. A similar conclusion was reached in the case of Liesfield v SPI Electricity Pty Ltd  
[13]  
(Liesfield v SPI),  
where Derham AsJ found that SPI had failed to discharge its onus  
as to the dominant purpose of documents relating to the investigation of the failure of  
[14]  
SPI’s assets in connection with the Black Saturday bushfires.  
21. In order for a document or communication to be privileged under s 119, ‘there must be a  
real prospect of litigation, as distinct from a mere possibility, but it does not have to be  
[15]  
more likely that not’.  
The nature of an incident may be such as to make litigation of  
[16]  
some kind ‘inherently ... likely according to the ordinary course of human affairs’,  
such that the engagement and consultation with external lawyers may be presumed to be  
for legal advice, absent any contrary indications.  
[17]  
22. There is one matter in the First Ruling that requires correction. At [23(i)] of the First  
Ruling, I said that evidence must be admissible direct evidence and not hearsay, citing  
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (AFP v  
[18]  
Propend).  
The TDJV’s counsel correctly submitted that as this is an interlocutory  
application, s 75 of the Evidence Act provides that hearsay evidence is admissible,  
[19]  
provided that evidence of the source of the information or belief is adduced.  
C.2 Evidence Act, s 131 – Settlement negotiation privilege  
23. The key limitations on the scope of settlement negotiation privilege set out in s 131 of the  
Evidence Act are:  
[20]  
(a) the parties must be in a dispute, that is an ‘existing dispute’.  
A dispute is  
defined in s 131(5)(a) to mean a ‘dispute of a kind in respect of which relief may be  
given in an Australian or overseas proceeding’; and  
(b) the communication must be made or the document prepared ‘in connection  
with’ an attempt to negotiate settlement of that dispute. That phrase is to be  
[21]  
construed broadly.  
It includes documents and communications forming part of  
[22]  
the negotiations as well as those that are reasonably incidental to them.  
However, the connection must be direct, and not merely ‘in any way  
[23]  
connected’.  
24. Ordinarily, in order to satisfy the court that a document has been prepared in connection  
with an attempt to resolve a dispute, evidence of the circumstances and context in which  
[24]  
the document was created will be required.  
25. Labelling a communication or document ‘without prejudice’ is not determinative.  
Rather, determination of whether a communication was made in connection with an  
attempt to negotiate a settlement of a dispute is determined from the objective evidence,  
usually comprising the nature of the discussions and negotiations between the  
[25]  
parties.  
26. Section 131(1)(b) applies to documents other than communications contemplated by s  
131(1)(a). It covers documents such as working papers referable to the preparation of a  
[26]  
settlement offer or a note recording the details of a settlement offer.  
C.3 Evidence Act, s 133 – Inspection  
27. As I stated at [24] of the First Ruling:  
The Court has a discretion under s 133 of the Evidence Act to inspect  
the documents to test a claim for privilege. Inspection should not be  
used to fill in gaps in the evidence, but provides a means of enabling a  
[27]  
claim to be scrutinised and tested.  
[28]  
28. The Court should not be hesitant in exercising the power,  
and may exercise it even  
where no evidence has been adduced in support of a privilege claim.  
29. The Court may refuse to exercise the discretion to inspect where the evidence does not  
[29]  
provide a sufficient basis for the Court to make an assessment,  
or where it would  
amount to a delegation to the Court of the task of establishing privilege in a way that is  
[30]  
unfair to the party seeking disclosure.  
30. When addressing the Court’s ability to inspect a document to scrutinise the claim for  
privilege, in Hancock v Rinehart, Brereton J outlined the unfairness that arises where  
inspection is the means by which the purpose of a document is to be determined, stating:  
While the documents themselves may well illuminate the purpose for  
which they were created, to allow them to be used as evidence – let  
alone the sole evidence – in support of a claim for privilege, would be  
contrary to well-established practice. It would also be grossly unfair to  
the other party: if the only evidence of purpose is to be inferred from  
the document itself, the party seeking access is deprived of any  
opportunity to test the asserted purpose, which would defeat rather  
than promote the intent of enabling claims to be tested and scrutinised.  
As Giles J observed in Woollahra Municipal Council v Westpac  
Banking Corporation:  
The court should be able to proceed on evidence describing  
the documents and the circumstances of their creation, and  
should not unnecessarily pay regard to material which can  
not be known to the party challenging the claim to  
[31]  
privilege.  
D Submissions  
31. The parties rely upon lengthy written submissions which were expanded upon in oral  
argument that extended over two days. I will succinctly summarise the key arguments  
raised.  
32. The TDJV asserts that it has led admissible evidence which establishes that each  
document is privileged. Mr Krsticevic is the Senior Legal Counsel and Company  
Secretary of Suez and is authorised by both Thiess and Suez to swear his evidence in  
[32]  
support of the privilege claims.  
He adduces evidence as to the TDJV’s Steering  
Committee and his role in relation thereto. Importantly, Mr Krsticevic became a member  
of the Steering Committee in mid-2017, and prior to that attended the Steering  
[33]  
Committee meetings.  
33. The TDJV argues that to the extent Mr Krsticevic’s evidence is hearsay, he has  
articulated the grounds of the information and belief of the matters to which he has  
deposed. Mr Krsticevic has attested to reviewing each of the documents and agreeing  
[34]  
with their categorisation in the seven categories set out in MK-6.  
Counsel submitted  
that Mr Krsticevic’s evidence is sufficient, in conjunction with inspection of the  
documents, to establish the privilege claimed.  
34. The TDJV submits that if I have any doubt as to the privilege claim, I ought to exercise  
my discretion to inspect the documents. It was submitted that upon inspection, privilege  
will be readily demonstrated.  
35. By its written submissions, the TDJV proposed that I should inspect and determine the  
claims of privilege by reference to sample documents. However, this proposal was  
withdrawn by counsel at the commencement of the hearing. Rather, the TDJV asks the  
Court to inspect all of the documents claimed to be privileged.  
36. Siemens challenges the privilege on the grounds that the TDJV has failed to adduce  
sufficient evidence to establish the privilege claimed. Siemens agrees that the TDJV has  
failed to discharge its onus for establishing privilege. Save in respect of a small number  
of documents, Siemens submits that the evidence does not provide a sufficient basis to  
make an assessment as to privilege, and that accordingly, I should not exercise the  
discretion to inspect the documents.  
37. In Schedule B, Siemens provides submissions as to the insufficiency of the evidence  
adduced with respect to each of the documents. The TDJV responded to these  
submissions orally by reference to its ‘aide to Schedule B to Siemens’ submissions’,  
which categorises Schedule B into 12 issues.  
38. In particular, Siemens argues that the evidence lacks the requisite specificity and focus  
to establish privilege where:  
(a) the TDJV has not led any evidence from Mr Krsticevic which specifically  
addresses the documents; and  
(b) where the TDJV has not led evidence in relation to the basic nature of the  
documents, such as their author, recipient, title, or topic.  
39. In addition, Siemens challenges the sufficiency of the evidence on the basis that Mr  
Krsticevic is not the appropriate person to give evidence. This is articulated in two ways:  
(a) firstly, where Mr Krsticevic is not the author of or a party to the  
communication, such that his assertion of another’s purpose is inadmissible  
opinion evidence; and  
(b) secondly, on the basis that Mr Krsticevic is not able to give evidence as to the  
purposes of the joint venture. It was submitted that the relevant purposes of the  
TDJV were that of its Steering Committee. Siemens argued that Mr Krsticevic was  
not a member of the Steering Committee at the relevant time, and that his role as  
legal counsel for only one of the joint venture parties did not qualify him to give  
evidence as to the purposes of the TDJV. In this regard, Siemens relied upon Perry  
v Powercor and the statements of Robson J regarding the need to identify  
[35]  
corporate purposes.  
Robson J found that hearsay evidence from legal counsel  
as to the purposes for commissioning an expert report was insufficient in  
circumstances where she had been instructed by the chief executive officer to  
retain the expert. Powercor failed to adduce evidence from its chief executive  
officer as to his purposes for instructing legal counsel to commission the expert  
report. By reason of this failure, the Court drew an inference that his evidence  
[36]  
would not have assisted Powercor’s claim to privilege.  
40. With respect to the privilege claims maintained in relation to the Incident (Categories 4  
and 5, and their Category 7 attachments), Siemens argues that there is insufficient  
evidence as to the dominant purpose of the documents and communications being for  
the TDJV to be provided with legal advice and services. In particular, this argument was  
made in respect of materials relating to the experts retained in the aftermath of the  
Incident, and documents concerning the Claims Taskforce formed by the TDJV  
[37]  
following the Incident.  
Through its chronology and the contemporaneous documents  
referred to therein, Siemens argued that there were a range of commercial and legal  
requirements for the TDJV to investigate the Incident irrespective of its desire to obtain  
legal advice or receive legal services in relation to any anticipated litigation. Siemens  
says that, absent explanation as to how the TDJV fulfilled its commercial and  
operational needs to investigate the Incident without the materials over which privilege  
is claimed, the Court should not be satisfied that their dominant purpose was for legal  
advice or legal services. For documents related to two of the experts retained in  
connection with the Incident, Delmech Engineering Pty Ltd (Delmech) and Driver  
Trett, Siemens argued that any privilege had been waived by the TDJV’s conduct.  
41. In respect of the claims for s 119 litigation privilege (Categories 3 and 5), the TDJV relies  
upon the finding in my First Ruling that the Incident was of such a nature that litigation  
would follow according to the ordinary course of human affairs, giving rise to litigation  
[38]  
privilege in the Category 5 documents.  
The Cable Issue was said to be of a similar  
nature, such that litigation was also anticipated in relation to the Category 3 documents.  
42. Siemens says that the requirement that there be anticipated proceedings as at the date of  
the communication or document has not been met. In relation to the litigation privilege  
claimed in respect of the Cable Issue (Category 3), Siemens says that the evidence  
amounts to the existence of a dispute, but does not extend to identifying that litigation  
was, in fact, anticipated. In relation to the litigation privilege claims relating to the  
Incident (Category 5), Siemens acknowledges that the Incident may be of such a nature  
that litigation may have been a possibility, but argues that this does not remove the need  
for the TDJV to adduce evidence that particular communications or documents were for  
the dominant purpose of that anticipated litigation, particularly having regard to the  
TDJV’s commercial need to investigate the Incident.  
43. In addition, Siemens raises particular arguments with respect to the Category 1 and  
Category 7 documents that appear to be technical documents, such as work plans  
[39]  
required to repair the cable.  
That is, the claims for privilege identified in [34] and  
[35] of Krsticevic 3. Siemens submitted that communications and documents going to  
these technical issues do not fall within s 131, even if they occurred against a background  
of without prejudice discussions. Siemens argues that they are not directly connected  
with an attempt to negotiate settlement of a dispute, in the manner discussed in GPI  
[40]  
Leisure v Yuill.  
44. With respect to the Category 7 documents for which s 131 privilege is claimed, Siemens  
submitted that documents attached to a without prejudice communication do not  
become privileged merely by reason of being attached to that communication. Siemens  
argued that to sustain privilege, the TDJV must adduce evidence that the attachments  
[41]  
themselves are privileged.  
E Summary of decision  
45. As set out in the List of Disputed Documents, I have determined that:  
(a) the TDJV has failed to adduce sufficient evidence to sustain the privilege  
claimed in respect of 97 documents, and I decline to exercise the discretion to test  
and scrutinise the documents; and  
(b) for the remaining 48 documents, there is sufficient evidence to sustain the  
privilege claimed. On 7 July 2022, I directed that the TDJV provide these  
documents to the Court for inspection, so that the privilege claims may be tested  
and scrutinised. Following inspection, I am satisfied that 46 of these documents  
are privileged in part or whole, and that the remaining two documents are not. I do  
not consider that privilege has been waived in the documents that I have inspected.  
46. For the remaining 19 documents on the List of Disputed Documents, no decision is  
required due to the documents either being produced to the TDJV on the day of the  
[42]  
[43]  
hearing,  
or by reason of Siemens not challenging the privilege claimed.  
47. As the List of Disputed Documents sets out short reasons in relation to each document,  
the reasons in this ruling will be brief, and confined to the following topics:  
(a) the significance of specific references to the documents in Krsticevic 3;  
(b) the s 131 claims for negotiation privilege in respect of the repair works referred  
to at [34] and [35] of Krsticevic 3 (Categories 1 and 7);  
(c) whether there was anticipated litigation in respect of the Cable Issue (Category  
3);  
(d) in respect of the ss 118 and 119 claims in relation to the Incident (Categories 4  
and 5 and their Category 7 attachments), the issues of dominant purpose of the  
documents and the existence of anticipated litigation; and  
(e) privilege claims in respect of documents inspected by the Court.  
F Significance of specific evidence  
48. The manner in which the TDJV have prepared its evidence in support of its privilege  
claim is unconventional.  
49. Mr Krsticevic gives evidence as to the nature of the Cable Issue,  
[44]  
[45]  
and the Incident.  
He then gives general descriptions of the advice and legal services received by the TDJV  
[46]  
and the roles of its internal and external lawyers.  
For certain of the types of advice  
and services, Mr Krsticevic footnotes in his evidence to document IDs of documents  
which are described as ‘examples’ of the advice.  
50. By way of example, at [29], Mr Krsticevic states that MinterEllison provided the TDJV  
with legal advice in relation to the Cable Issue, and that this extended to the conduct of  
settlement negotiations with Nexans Olex (at [29(a)]), advice and assistance in the  
conduct of settlement negotiations with Aquasure and the State (at [29(b)]), advice on  
the terms and manner of engagement of experts in relation to the Cable Issue (at  
[29(c)]), advice on the potential legal consequences of the Cable Issue and how to  
manage them (at [29(d)]), and assistance with the insurance claim negotiations and  
provision of information between the TDJV and its insurers’ lawyers (at [29(e)]).  
51. With respect to some but not all of these categories of advice, by way of footnotes, Mr  
Krsticevic identifies by document ID examples of documents which fall into these  
categories. For example, footnote 6 to [29(b)] simply says ‘[f]or example,  
THI.0001.0001.9972, THI.1001.0017.7709’. No information is given by Mr Krsticevic as  
to what these two documents are, or who authored or received them.  
52. The TDJV’s Schedule and MK-6 do not provide information as to the nature of the  
documents, their author, recipient, title or topic. Rather, these documents simply list the  
document IDs of the disputed documents, their date, any source document, whether  
privilege is claimed in part or full, and the document ID of any duplicates.  
53. There are 86 documents that are not specifically referred to in the body or footnotes of  
Krsticevic 3. The sole reference in the evidence to these documents is their inclusion in  
MK-6. Some documents are also included in Exhibit MK-7 to Krsticevic 3, being a list of  
documents for which Mr Krsticevic says the s 131 privilege is jointly held with Nexans  
[47]  
Olex (MK-7).  
54. Had Siemens not prepared Schedule A, the Court would not have had the benefit of the  
available metadata for the disputed documents. For some, but not all of the documents,  
Schedule A provides the document title, author, and recipient of the disputed  
documents. This provides some objective evidence as to the nature of these documents,  
and other information which may assist in establishing the privilege claims, such as the  
author and recipients of the documents. For 33 documents of the documents not  
specifically referenced to in Krsticevic 3, there is no metadata set out in Schedule A, and  
thus no evidence adduced about the nature of these documents whatsoever (other than  
their inclusion in MK-6 and, in some cases, MK-7).  
55. The TDJV’s counsel submitted that the sufficiency of Mr Krsticevic’s evidence needs to  
be evaluated in its fair context, which it says includes the fact that the claim for privilege  
[48]  
is for a very small percentage of the documents discovered by the TDJV.  
I do not  
consider the proportion of a party’s discovery over which privilege is to be claimed to be  
relevant to the question of whether the evidence is sufficient to sustain the privilege  
claimed.  
56. Conversely, the TDJV argued that fair context includes the large number of documents  
claimed to be privileged, and submitted that the TDJV should not be criticised for  
adducing evidence in an efficient manner, having regard to their responsibility to  
[49]  
conduct the litigation cost effectively.  
Whilst efficiency is something to be promoted,  
in my view, the question of whether a party has adduced evidence to provide a sufficient  
basis for its claim ought not to be influenced by the volume of documents over which  
privilege is claimed. The evidence adduced to sustain each claim for privilege must be  
reviewed and assessed.  
57. In my view, where the TDJV has not adduced evidence which specifically addresses the  
documents, the evidence of Mr Krsticevic amounts to an assertion that the documents  
are in particular privilege categories, unsupported by objective evidence as to the nature  
of the documents or the purpose for which they were created. The general evidence as to  
the nature of the Cable Issue and the Incident, and the description of the different  
privilege categories in [6] of Krsticevic 3, do not provide sufficiently focussed and  
specific evidence from which the Court may assess the claims for privilege. That is, there  
is no objective information from which it might be assessed whether communications or  
documents were made in connection with an attempt to negotiate a settlement of a  
dispute (where s 131 privilege is claimed), or for the dominant purpose of legal advice or  
legal services (where s 118 or s 119 privilege is claimed).  
58. In order for the TDJV to sustain its claim for privilege, it is relying upon the Court to  
exercise its discretion to inspect these documents, as this will provide the only manner  
by which the Court will be provided any objective information about the documents.  
59. In my view, given the failure of the TDJV to provide a sufficient basis for the Court to  
make an assessment as to the privilege claimed, it would be improper for me to exercise  
the discretion to inspect the documents. To do so would give rise to unfairness to  
[50]  
Siemens of the nature described by Brereton J in Hancock v Rinehart.  
60. For those documents that I have determined to inspect, I am satisfied that there is  
evidence to sustain the claims of privilege based on the evidence of Mr Krsticevic, in  
conjunction with review of the available metadata for the documents, and inspection of  
redacted versions of the documents contained in Siemens’ Schedule B bundle. By way of  
summary:  
(a) in the case of documents for which s 131 settlement negotiation privilege is  
claimed, there is specific evidence from Krsticevic 3 at [29(a)(ii)] and/or [29(a)  
(iii)]. This evidence identifies that each of the documents comprise examples of  
advice and assistance provided by MinterEllison in the conduct of settlement  
negotiations with Nexans Olex; and  
(b) in the case of documents for which s 118 privilege is claimed in relation to the  
Cable Issue (Category 2), and the Incident (Category 4 and their Category 7  
attachments), for the majority of documents, there is evidence in Krsticevic 3 as to  
the purpose of the documents or communications, and the nature of the advice  
sought or obtained. In respect of a small number, whilst there is no specific  
reference in Krsticevic 3, for the reasons set out in the List of Disputed Documents,  
I consider it appropriate to exercise my discretion to inspect the documents.  
61. For a number of documents that I have determined to inspect, Siemens criticises Mr  
Krsticevic’s evidence by reason of it being hearsay. However, I am satisfied that Mr  
Krsticevic’s evidence as to his role in the TDJV, and his involvement in the TDJV’s  
response to the Cable Issue and the Incident, provides sufficient foundation for the  
hearsay evidence given.  
62. There are instances where specific reference is made to documents in Mr Krsticevic’s  
evidence, but I have determined that privilege has not been established, and that it is not  
appropriate for me to inspect the documents. The reasons for doing so are set out in the  
List of Disputed Documents, and the balance of these reasons to the extent that they  
concern the Category 1 and Category 7 repair works, and the Category 3, 4 and 5  
documents, is set out below.  
G Categories 1 & 7 – Repair works  
63. It appears from the available metadata that a number of the Category 1 and Category 7  
documents may be documents and emails addressing investigation and repair works that  
formed part of a settlement with Nexans Olex, as referred to in [35] of Krsticevic 3. I say  
‘may be’ because Mr Krsticevic’s evidence does not identify any specific documents  
which meet this description.  
64. The description of the dispute with Nexans Olex at [24(a)] of Krsticevic 3 simply states  
that there was a dispute as to how the Cable Issue ‘ought to be rectified’. This description  
does not provide any information about what the dispute was between the parties with  
respect to rectification of the Cable Issue.  
65. The further information provided in [34]-[35] of Krsticevic 3 is pitched at a level of  
generality that does not satisfactorily bridge the information gap. At [35], Mr Krsticevic  
states that technical investigations into the Cable Issue and proposed repair methods  
were required, and that communications on these documents ‘fall within Category 1’.  
However, it is left largely unexplained how this technical investigation is connected with  
the ‘attempt to negotiate’ the settlement of the dispute concerning rectification.  
Common sense dictates that technical investigations in relation to the Cable Issue would  
be required whether or not the parties were attempting to negotiate settlement of a  
dispute. The evidence at [34] of Krsticevic 3 provides some context, but absent  
explanation as to nature of the dispute between the parties and the manner in which it  
was resolved, it remains unclear how technical investigations are connected to the  
negotiation between the parties.  
66. In any event, the global statements in [34]-[35] of Krsticevic 3 do not enable  
determination of to what extent any particular communication or document addressing  
investigation or repair methodology is in connection with an attempt to negotiate a  
settlement, and which, for example, concerns technical matters, rather than negotiation.  
67. Similarly, the assertion at [63] of Krsticevic 3 that the privilege is jointly held with  
Nexans Olex, and listing the documents on MK-7, does not provide objective evidence  
from which the Court may assess the claim for privilege.  
68. A number of the documents include the words ‘without prejudice’ or similar in their  
document titles, or the text of the documents. Whilst this may evidence the subjective  
view of the author of a document or communication, the label ‘without prejudice’ is not  
determinative. Objective evidence as to the nature of the dispute and the negotiations is  
required, and for the reasons explained above, has not been adduced with adequate  
specificity by the TDJV.  
69. A number of the documents are attachments to emails, where the emails themselves are  
not subject to a claim of privilege. I infer from this that the documents are asserted to be  
privileged under s 131(1)(b) as documents prepared in connection with an attempt to  
negotiate a settlement. However, in each case, there is no evidence adduced as to why  
these particular documents were prepared and whether their preparation was in  
connection with an attempt to negotiate a settlement.  
70. For the Category 7 documents, the TDJV asserts privilege solely on the basis of the  
documents being attachments to Category 1 documents, to which s 131 privilege is  
asserted to apply. I have determined that the TDJV has failed to establish that the hosts  
to these Category 7 documents are privileged under s 131. Accordingly, the TDJV’s claim  
that the Category 7 documents are privileged under s 131 by reason of their host  
documents fails.  
71. Further, and in any event, I agree with Siemens’ submissions that a finding that a  
communication is privileged under s 131(1)(a) does not extend to its attachments, unless  
[51]  
those attachments are themselves privileged under s 131(1)(b).  
counsel did not quibble with this proposition.  
In reply, the TDJV’s  
[52]  
No evidence has been adduced by the  
TDJV with respect to the preparation of any of the Category 7 documents in respect of  
which s 131 privilege is claimed. I have reviewed the objective evidence available from  
document metadata, and in each case, the evidence available does not assist in  
determining whether the documents were prepared in connection with an attempt to  
negotiate a settlement of a dispute. As such, there is insufficient evidence to establish  
privilege under s 131(1)(b) with respect to the Category 7 documents.  
72. Given the paucity of the evidence adduced, I decline to exercise my discretion to inspect  
the documents.  
73. If I were to exercise the power to inspect the documents, there is insufficient context or  
submissions for me to ascertain whether any of these documents were prepared, or were  
communications sent, in connection with an attempt to settle a dispute. The TDJV has  
not adduced sufficient information as to the terms of settlement, or the investigation and  
repair methodology referred to in [35] of Krsticevic 3. If the documents address  
technical details, as the document title of many of the documents seems to suggest, given  
that no evidence has been adduced with respect to the technical details, nor their role in  
the settlement (other than in the most general terms), inspection by the Court will not  
shed any light on whether s 131 privilege has been properly claimed.  
H Category 3 – Cable Issue anticipated litigation  
74. The TDJV claims four documents to be the subject of litigation privilege in connection  
with the Cable Issue (Category 3). The Cable Issue is described at [22]-[23] of Krsticevic  
3 as an issue regarding the damaged cable joints for the underground electricity cables  
running between the Cranbourne Terminal Station and the desalination plant.  
75. The Cable Issue disputes are outlined at [24] of Krsticevic 3:  
As a consequence of the Cable Issue, disputes arose between:  
(a) the TDJV and Nexans Olex who designed, supplied and installed the cable  
joints, as to who was responsible for the Cable Issue and how it ought to be  
rectified;  
(b) the TDJV and Aquasure as to who was responsible for the Cable Issue and how  
it ought to be rectified; and  
(c) the TDJV and its insurers regarding insurance coverage for any liability in  
respect of the Cable Issue.  
76. Mr Krsticevic’s evidence concerning the Cable Issue is largely directed to the claims for  
settlement negotiation privilege under s 131 (Category 1 and their Category 7  
attachments). A specific reference to the TDJV being provided with legal services (as  
opposed to advice) is made in [31] of Krsticevic 3, where he deposes to experts having  
been briefed by MinterEllison in order to assist MinterEllison to provide legal services  
relating to the resolution of the Cable Issue disputes. However, no specific documents  
are identified in this paragraph of Krsticevic 3.  
77. In order for s 119 privilege to be enlivened, there must be ‘a real prospect of litigation, as  
[53]  
distinct from a mere possibility’.  
78. The information provided in Krsticevic 3 as to the Cable Issue and the associated  
disputes makes no reference to litigation being contemplated by the TDJV or by the  
parties with which it was in dispute. Nor does it provide sufficient information about the  
Cable Issue or their severity. The issue is described at [23] of Krsticevic 3 as being that ‘a  
number of the cable joints had deflected, cracked, deformed or been crushed’. The  
impact of this issue is not described. Accordingly, there is insufficient evidence as to the  
severity of the event from which to infer that litigation might follow in the ordinary  
course.  
79. Accordingly, I find that there is insufficient evidence to establish litigation privilege in  
respect of the Category 3 documents, and given the lack of evidence, I decline to exercise  
the discretion to inspect these documents.  
I Categories 4 and 5 – the Incident  
80. The Category 4 and 5 documents concern:  
(a) three experts retained in respect of the Incident, being Arcadis, Delmech and  
[54]  
Driver Trett;  
and  
(b) the Claims Taskforce formed by the TDJV in the week commencing 20  
February 2017, following the Incident in December 2016. Mr Krsticevic says that it  
was formed for the purpose of gathering information to provide to Clyde & Co to  
assist it in advising on, and preparing claims and defences in respect of, the  
[55]  
Incident and the Cable Issue.  
81. First, I will address the claims for litigation and advice privilege in respect of:  
(a) documents generated by the three experts for which privilege is claimed under s  
118(c) and/or s 119(b); and  
(b) communications with the experts, which are claimed to be privileged under s  
119(a).  
82. In my view, the evidence of the TDJV with respect to the retainer of the three experts is  
wholly deficient, and cannot sustain a claim for privilege under s 118 or s 119 of the  
Evidence Act.  
83. Mr Krsticevic refers to the ‘retention and briefing of experts to establish the facts upon  
[56]  
which advice on liability could be given’,  
and identifies the names of the experts  
[57]  
retained by one or both of MinterEllison and Clyde & Co.  
84. No evidence is adduced by the TDJV as to:  
(a) who determined that Arcadis, Delmech and Driver Trett should be retained;  
(b) the terms of their retainer;  
(c) the questions on which they were asked to opine or investigate;  
(d) the particular expertise of Arcadis, Delmech and Driver Trett, other than  
[58]  
Delmech, which is described to be an ‘engineering consultancy’,  
its ‘Root Cause Analysis’ Report which has been adduced;  
and a copy of  
[59]  
or  
(e) how their work informed the legal advice and services to be given by  
MinterEllison and/or Clyde & Co.  
85. No evidence is adduced from the solicitors who retained the experts as to their purposes  
for retaining them, and the interrelationship with the legal advice or legal services given  
to the TDJV.  
86. It might be inferred that when providing advice as to the legal consequences of a  
technical failure such as the Incident, lawyers will require the assistance of technical  
experts. However, absent retainer letters or other information about the purpose of the  
retainer, there is no objective evidence from which the Court may determine whether  
these reports would not have been necessary absent the need for legal advice or  
anticipated litigation.  
87. In my view, the failure of the TDJV to adduce evidence addressing some or all of the  
above matters is fatal to its claim for privilege in respect of the work product of, and  
communications with, Arcadis, Delmech and Driver Trett. The Court has not been  
provided with evidence from which an objective determination may be made as to what  
was the purpose of the documents and communications, let alone the dominant purpose.  
88. Further, I agree with Siemens’ submissions that following the Incident, the TDJV had a  
range of purposes for which investigation of the Incident was required with the benefit of  
[60]  
expert assistance.  
One purpose may have been in order to obtain legal advice or  
services in anticipation of litigation, but it is clear that investigation of the Incident with  
the benefit of expert assistance was also required for a number of commercial and  
operational purposes. Those commercial purposes included responding to requests for  
information by Aquasure, the Minister and the TDJV’s insurers, responding to defect  
notices, facilitating the re-energisation of the desalination plant, rectifying damage,  
internal reporting requirements to the officers of Thiess and Suez and assessing future  
risks.  
89. Similar to Perry v Powercor and Liesfield v SPI, the TDJV has failed to explain to the  
Court how the TDJV met its commercial purposes for investigating the Incident separate  
from the expert reports and related communications over which privilege is claimed.  
90. The TDJV’s failure to adduce sufficient evidence as to the dominant purpose of the  
expert retainers is surprising, having regard to the similar criticisms I made of the  
[61]  
evidence adduced with respect to the Tractebel reports addressed in the First Ruling.  
91. The TDJV’s counsel accepted the weight of Siemens’ written submissions made with  
respect to the purpose of the Delmech retainer and report, but sought to distinguish the  
[62]  
position of Driver Trett.  
Counsel drew attention to the fact that almost all of the  
contemporaneous documents referred to by Siemens on the question of purpose  
addressed Delmech, and did not concern Driver Trett. Counsel also referred to the  
further evidence adduced by the TDJV with respect to the Driver Trett engagement,  
namely, the appointment of Mr Duggan of Driver Trett to the Claims Taskforce and the  
further evidence as to Driver Trett’s role as set out at [48] and [52]-[57] of Krsticevic 3.  
92. I do not accept that the position of Driver Trett can be distinguished in this way.  
93. Whilst further context is provided with respect to Driver Trett’s role, this evidence fails  
to provide objective evidence from which dominant purpose may be established. Mr  
Krsticevic states that Driver Trett was retained to prepare a ‘claims analysis’, and that  
[63]  
this was a ‘necessary precondition’ to the legal advice to be provided by Clyde & Co.  
However, without explanation and objective evidence regarding Driver Trett’s expertise,  
and the purpose of its retainer, this additional context does not assist in bridging the  
evidential gap.  
94. Further, the contemporaneous documents that I was taken to by Siemens addressed the  
multiple purposes for which the Incident required investigation. Whilst many of these  
documents addressed Delmech in particular, this does not detract from the fact that it  
established the multiple purposes for which the TDJV required the Incident to be  
investigated. The TDJV has failed to explain how it addressed the non-privilege purposes  
for the investigation, absent the material over which privilege has been claimed.  
95. In my view, the TDJV has not adduced sufficient evidence to establish the dominant  
purpose of the retainers of Arcadis, Delmech or Driver Trett, whether that purpose be for  
legal advice (Category 4, s 118 claims) or legal services relating to anticipated  
proceedings (Category 5, s 119 claims).  
96. Without the benefit of information about the nature of the expertise and retainer, the  
advice that these experts were engaged to prepare and how that advice informed the  
TDJV’s solicitors for the purpose of their advice and legal services to the TDJV, and the  
means by which the TDJV addressed its commercial purposes for investigating the  
Incident, I will not be in a position to assess the claim of privilege upon inspection of the  
documents. Accordingly, I decline to exercise my discretion to inspect these documents.  
97. As I found in my First Ruling, the Incident was a significant event warranting  
investigation, rectification and consideration of the TDJV’s liability. The nature of the  
Incident was such that litigation is inherently likely according to the ordinary course of  
[64]  
human affairs.  
However, this does not detract from the need to adduce evidence that  
the dominant purpose of the communications and documents was in connection with  
the anticipated litigation. Whilst litigation might have been an objective possibility, the  
Court still needs to be satisfied that each document or communication over which s 119  
privilege is claimed was prepared for the dominant purpose of that anticipated litigation.  
Given the multiple purposes for investigating the Incident, the need for focussed and  
specific evidence is all the stronger.  
98. The TDJV has failed to adduce evidence of this kind. Rather, the evidence is focussed  
upon the formation of the Claims Taskforce, which Mr Krsticevic says was established  
for the dominant purpose of the TDJV receiving legal services in connection with  
[65]  
anticipated litigation.  
99. However, this is the only evidence adduced as to the purpose of the Claims Taskforce. No  
constitutional or other documents are adduced to identify the purposes or activities of  
the Claims Taskforce, so as to provide objective evidence as to its purpose.  
100. The criticisms regarding the TDJV’s failure to explain how it met its commercial needs  
for investigating the Incident absent the experts retained equally apply to the Claims  
Taskforce. Siemens’ chronology documents indicate that the Claims Taskforce had  
purposes in addition to any privileged purpose of providing information to Clyde & Co to  
enable legal services to be provided by it to the TDJV. For example:  
(a) THI.0001.0001.4159 is an email chain containing two emails dated 9 and 14  
June 2017 with the subject line ‘VDP – Background information’ circulated  
amongst the members of the Claims Taskforce. The emails are from Mr Lemmin-  
Woolfrey, a member of the Claims Taskforce, and the chief internal  
[66]  
investigator.  
The email asks questions as to the factual background relating to  
the removal of the links, and states ‘I am convinced that a little background digging  
we can better formulate the history which may give us a better picture for decision  
making’. The investigative nature of the email sent nearly six months after the  
Incident, and the reference to ‘decision making’ appears to indicate that the Claims  
Taskforce was tasked with informing the TDJV for its decision making, rather than  
to solely gather information for Clyde & Co; and  
(b) the documents indicate that the TDJV and the Claims Taskforce used the word  
‘claim’ to refer to contractual payment claims, defect notices and insurance claims,  
rather than legal proceedings within the meaning of s 119. Examples of these are  
listed in Siemens’ written submissions (at [120]). One of which is Mr Taylor’s  
memoranda to the TDJV Steering Committee dated 18 January 2018  
[THI.0001.00001.5011], more than 12 months after the Incident. This document is  
an example where the word ‘claim’ is used with respect to defects and insurance  
claims. This document also refers to ‘formal recovery proceedings’ having been  
filed against Siemens, which appears to be a reference to litigation, which was  
commenced in December 2017.  
101. The TDJV has not adduced any evidence as to its insurance claim procedures, how it  
obtained information necessary to make a claim, or what information it needed in order  
to make a claim. Similarly, no evidence is adduced with respect to the work necessary for  
responding to defect notices issued under its contractual arrangements, and how this  
was done without the expert assistance given by Arcadis, Delmech and Driver Trett.  
102. In light of this, it is not possible to determine that the predominant activity of the Claims  
Taskforce was to provide information to Clyde & Co so that it may provide legal services  
to the TDJV in relation to anticipated litigation.  
103. Regardless of whether Mr Krsticevic is in a position to give evidence with respect to the  
corporate purposes of the TDJV in relation to the retainer of Arcadis, Delmech and  
Driver Trett, or the purpose of the Claims Taskforce, I am not satisfied that the  
dominant purpose for these documents was for the TDJV to be provided with  
professional legal services relating to anticipated litigation.  
104. Given the deficiency in the evidence, I decline to exercise my discretion to inspect the  
Category 5 documents. Without the benefit of explanation from the TDJV as to how it  
satisfied its commercial purposes for investigating the Incident, and focussed and  
specific evidence as to the relationship between particular documents and the  
anticipated litigation, inspection will not shed any light on the dominant purpose of any  
of the communications or documents.  
J Inspected documents  
105. On 7 July 2022, I directed that the TDJV produce 48 documents that I determined to  
inspect to test and scrutinise the privilege claimed. These documents are identified in  
the column entitled ‘Ruling’ in the List of Disputed Documents as ‘Inspect s 131’ and/or  
‘Inspect s 118’.  
106. My ruling following inspection is set out in Column S of the List of Disputed Documents  
entitled ‘Ruling Following Inspection’.  
107. In respect of 46 of the inspected documents, I am satisfied that they are privileged.  
Where s 118 privilege has been claimed, inspection supports the TDJV’s claim that they  
are documents prepared or communications sent for the dominant purpose of lawyers  
providing the TDJV with legal advice in connection with the Cable Issue or the Incident.  
Where s 131 privilege is claimed, inspection supports the TDJV’s claim that they are  
communications or documents prepared in connection with an attempt to negotiate  
settlement of a dispute related to the Cable Issue.  
[67]  
108. For three of the documents inspected,  
Siemens argued that privilege had been waived  
by reason of the TDJV disclosing the Delmech report to Aquasure, and by the TDJV’s  
expert, Mr Gerbert, relying upon the Delmech report to form his conclusions. Siemens  
argued that this conduct by the TDJV was inconsistent with the maintenance of  
privilege, and that therefore, privilege had been waived under s 122 of the Evidence Act.  
Alternatively, Siemens argues that privilege has been waived under s 126 of the Evidence  
Act as associated material which is necessary for the proper understanding of the  
Delmech report.  
109. In my view, privilege has not been waived. None of the three privileged documents  
concern the content or conclusions of the Delmech report. I therefore do not consider  
that provision of the Delmech report to Aquasure and reliance upon the Delmech report  
by the TDJV’s expert is conduct of the TDJV which is inconsistent with the maintenance  
of privilege. Nor are the privileged materials reasonably necessary to enable proper  
understanding of the Delmech report.  
K Conclusion  
110. Subject to hearing from the parties as to the appropriate orders in consequence of these  
reasons, I will make orders requiring:  
(a) the TDJV to produce to Siemens the documents identified in the List of  
Disputed Documents where privilege has not been established, without redaction  
for privilege; and  
(b) the TDJV to pay Siemens’ costs of this application on a standard basis, to be  
taxed if not agreed.  
111. I direct that the parties provide an agreed form or order to my chambers by no later than  
12 pm on Thursday, 14 July 2022. If agreement is not reached, I direct the parties to  
provide competing orders by this time, together with short submissions of no more than  
three pages addressing the remaining matters in dispute.  
112. Lastly, I wish to express my regret for the time taken for this ruling to be delivered. I  
thank the parties and their advisors for their patience.  
SCHEDULE OF PARTIES  
S ECI 2018 02258  
BETWEEN:  
AQUASURE PTY LIMITED (ACN 135 956 393)  
- v -  
Plaintiff  
THIESS PTY LIMITED (ACN 010 221 486)  
First Defendant  
SUEZ WATER PTY LIMITED (ACN 051 950 068) Second Defendant  
SIEMENS LIMITED (ACN 004 347 880)  
- and -  
Third Defendant  
Third Party  
AUSNET TRANSMISSION GROUP PTY LTD  
(ACN 079 798 173)  
[1]  
Aquasure Pty Ltd v Thiess Pty Ltd & Ors [2021] VSC 525.  
Ibid [44]-[46].  
[2]  
[3]  
The TDJV filed two affidavits of Mr Krsticevic on 21 June 2021 and 8 July 2021, as referred  
to in the First Ruling [6].  
[4]  
Krsticevic 3, [22]–[24].  
[5]  
Ibid [10].  
[6]  
Siemens’ written submissions [17].  
[7]  
An updated version of Schedule B was provided to the Court on 15 November 2021.  
[8]  
Transcript of Proceedings, Aquasure Pty Ltd v Thiess Pty Ltd & Ors (Supreme Court of  
Victoria, S ECI 2018 02258, Steffensen JR, 17 November 2021) 5-6 (17 November 2021  
Transcript).  
[9]  
An updated version of Schedule C was provided to the Court on 8 November 2021.  
[10]  
This column has been edited with respect to Category 7 documents to identify the category  
of their hosts.  
[11]  
[2011] VSC 308.  
[12]  
Ibid [71]-[77]. Robson J’s decision was upheld on appeal: Powercor Australia Ltd v Perry  
[2011] VSCA 239; (2011) 33 VR 548.  
[13]  
[2014] VSC 348.  
[14]  
Ibid [100], [127].  
[15]  
Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59;  
(2002) 4 VR 332, 341 [19].  
[16]  
Ibid [22].  
[17]  
AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30, 45 [44] (Young J).  
[18]  
(1997) 188 CLR 501, 513-4 (Brennan CJ).  
[19]  
As explained by Rees J in Re Global Advanced Metals Pty Ltd [2019] NSWSC 1545,  
[16]–[17], the decision in AFP v Propend concerned an appeal of a decision handed down  
prior to the enactment of the Evidence Act 1995 (Cth), and in any event, was a final decision  
and was not interlocutory in nature.  
[20]  
Kong v Kang [2014] VSC 28, [62] (Derham AsJ) (Kong).  
[21]  
Slea Pty Ltd v Connective Services Pty Ltd [2017] VSC 232, [20] (Almond J).  
[22]  
Field v Commissioner for Railways (NSW) [1957] HCA 92; (1957) 99 CLR 285, 292  
(Dixon CJ, Webb, Kitto and Taylor JJ).  
[23]  
GPI Leisure Corporation Ltd (in liq) v Yuill (1997) 42 NSWLR 225, 226 (Young J) (GPI  
Leisure v Yuill); Kong (n 20) [63].  
[24]  
Biovision 2020 Pty Ltd v CGU Insurance Ltd [2010] VSC 589, [52] (Judd J).  
[25]  
25.  
Kong (n 20) [61], citing Davies v Nyland (1975) 10 SASR 76, [89]-[90] and Bentley  
v Nelson [1963] WAR 89.  
[26]  
Seven Network Ltd v News Ltd [2006] FCA 343; (2006) 151 FCR 450, 459 [45] (Graham  
J).  
[27]  
Hancock v Rinehart [2016] NSWSC 12 (Hancock v Rinehart), [31] (Brereton J);  
Mortgage Results Pty Ltd v Millsave Holdings Pty Ltd [2017] VSC 704, [74] (Derham AsJ)  
(Mortgage Results v Millsave).  
[28]  
Esso Australia Resources v Federal Commissioner of Taxation [1999] HCA 67; (1999)  
201 CLR 49, 70 [52] (Gleeson CJ, Gaudron and Gummow JJ); Perazzoli v BankSA, a division  
of Westpac Banking Corporation Limited [2017] FCAFC 204, [104].  
[29]  
See, eg. Mortgage Results v Millsave (n 27) [72].  
[30]  
Tabcorp Holdings Ltd v State of Victoria [2013] VSC 302, [97]–[98] (Sifris J); Mortgage  
Results v Millsave (n 27) [24], [72].  
[31]  
Hancock v Rinehart (n 27) [32] (citations omitted).  
[32]  
Krsticevic 3, [1]–[3].  
[33]  
Ibid [15]–[21].  
[34]  
Ibid [10].  
[35]  
Perry v Powercor (n 11) [50]-[53], [74].  
[36]  
Ibid [72]-[77].  
[37]  
The Claims Taskforce is referenced in Krsticevic 3, [44] and discussed at [80(b)] below.  
[38]  
First Ruling [59].  
[39]  
Transcript of Proceedings, Aquasure Pty Ltd v Thiess Pty Ltd & Ors (Supreme Court of  
Victoria, S ECI 2018 02258, Steffensen JR, 16 November 2021), 105 (16 November 2021  
Transcript).  
[40]  
GPI Leisure v Yuill (n 23) 226 (Young J).  
[41]  
Siemens’ written submissions [139]–[141].  
[42]  
THI.1001.0017.8862, THI.1001.0017.8874, THI.1001.0017.7815 (duplicated in  
THI.1001.0019.1205), THI.1001.0017.7919, THI.1001.0017.7306, and THI.0001.0001.4515.  
[43]  
Siemens’ counsel advised that Siemens does not challenge the privilege in respect of any  
document which is not listed in Siemens’ Schedule B (17 November 2021 Transcript, 5-6). The  
Court has identified 13 documents referred to in MK-6 that are not in Siemens’ Schedule B:  
CPB.001.003.3817, THI.0001.0001.5915, THI.0001.0001.5927, THI.0001.0001.7023,  
THI.0001.0001.9336, THI.1001.0016.6297, THI.1001.0018.0468, THI.1001.0019.4077,  
THI.1001.0019.4084, THI.1001.0019.4085, THI.1001.0020.5681, THI.1001.0020.5689,  
THI.1001.0020.5696.  
[44]  
Krsticevic 3, [22]–[24].  
[45]  
[46]  
[47]  
[48]  
[49]  
[50]  
[51]  
[52]  
[53]  
[54]  
[55]  
Ibid [38]–[39].  
Ibid [25]-[37] (Cable Issue), [40]-[59] (Incident).  
Ibid [63].  
16 November 2021 Transcript, 7.  
Ibid.  
Hancock v Rinehart (n 27) [32].  
Siemens’ written submissions [43(3)].  
17 November 2021 Transcript, 20-21.  
See [21] above.  
Krsticevic 3, [42].  
Ibid [44]. Mr Krsticevic also states the Claims Taskforce related to the Cable Issue claims,  
however, this is not relevant to Categories 4 and 5.  
[56]  
Ibid [41(a)(ii)].  
[57]  
Ibid [42].  
[58]  
Mr Krsticevic’s affidavit, filed 21 June 2021, [13].  
[59]  
THI.0001.0001.3209.  
[60]  
Siemens’ written submissions [68], and the documents referred to therein.  
[61]  
First Ruling [43]–[47].  
[62]  
17 November 2021 Transcript, 12.  
[63]  
Krsticevic 3, [48], [52], [55].  
[64]  
First Ruling [59].  
[65]  
Krsticevic 3, [44].  
[66]  
Ibid [46]–[47].  
[67]  
CPB.001.002.6462, CPB.001.002.6465 and THI.0001.0001.7043.  


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