Viterra Malt Pty Ltd & Ors v Cargill Australia Limited & Anor [2018] HCATrans 202 (3 October 2018)

Last Updated: 5 October 2018

[2018] HCATrans 202

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M72 of 2018

B e t w e e n -

VITERRA MALT PTY LTD (ACN 096 519 658)

First Applicant

VITERRA OPERATIONS PTY LTD (ACN 007 556 256) (FORMERLY VITERRA OPERATIONS LTD) (ACN 007 556 256)

Second Applicant

VITERRA PTY LTD (ACN 084 962 130) (FORMERLY VITERRA LTD) (ACN 084 962 130)

Third Applicant

GLENCORE INTERNATIONAL AG

Fourth Applicant

and

CARGILL AUSTRALIA LIMITED (ACN 004 684 173)

First Respondent

CARGILL INCORPORATED

Second Respondent

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 3 OCTOBER 2018, AT 11.24 AM

Copyright in the High Court of Australia

____________________

MR S.R. SENATHIRAJAH, QC: If the Court pleases, I appear on behalf of the applicants with MS K.A. O’GORMAN. (instructed by King & Wood Mallesons)

MR P.H. SOLOMON, QC: If your Honour pleases, with the ubiquitous MR C.J. TRAN, I appear for the respondents. (instructed by Gilbert + Tobin Lawyers)

HIS HONOUR: Mr Senathirajah.

MR SENATHIRAJAH: Thank you, your Honour. This is my application for an order that, in effect, there be no order as to costs.

HIS HONOUR: Yes. Well, let me cut to the chase. I have seen the submissions and in response I have seen what I did not appreciate at the outset, that although privilege was waived, or the claimed privilege was waived, and the documents were provided, and you were asked whether you would give up the chase, you delayed for some considerable time before you were disposed to convey that you would which it seems to me to be not a particularly good basis to make any special order as to costs.

MR SENATHIRAJAH: Your Honour, I hear that. Can I respond to that proposition?

HIS HONOUR: Certainly.

MR SENATHIRAJAH: What has to be appreciated is that the applicants had been resolutely seeking these documents for over one year across three tiers of Supreme Court Victoria and it was three business days before the commencement of a 14-week trial where those documents were to be utilised that the respondents indicated by way of an email that they were choosing to waive privilege in those documents.

HIS HONOUR: Right.

MR SENATHIRAJAH: So there was a very short amount of time that was available for us to consider whether all relevant documents had in fact been produced. Your Honour, the fundamental misconception, in my submission, or in our submission, is the proposition that by virtue of the email of 22 May there was, in effect, an automatic waiver of the claim for privilege in respect of the documents.

If that proposition is not right, as we contend it is not, then what we did thereafter was perfectly reasonable and explains why a period of time of about four weeks was necessary for our clients to satisfy themselves that in fact all relevant documents had been produced. That is the nub of the argument, your Honour.

HIS HONOUR: All right.

MR SENATHIRAJAH: You will see that by the time that the email of 22 May had been sent to us, we had instituted proceedings in this Court and the documents were then produced the day that followed. As Mr Baykitch, the applicants’ solicitor, has deposed in paragraph 9 of his affidavit of 31 July, the applicants’ lawyers then carefully – I am just paraphrasing what is in paragraph 9 – reviewed the documents including to ascertain that the respondents had in fact provided all documents answering the description of the documents. Given the likely very significant importance of these documents, from the applicants’ perspective, to the issues in dispute in the pending trial of the proceedings in the Supreme Court of Victoria, the review took a number of weeks to complete properly.

HIS HONOUR: Just pausing there, Mr Senathirajah. At paragraph 8 of that affidavit, Mr Baykitch deposes that on 22 May he received the email wherein Ms Whiting signified that the respondents elected to waive their claim for privilege. It appears that at least he was of the view – and presumably others in his firm – that the email was a waiver of privilege.

MR SENATHIRAJAH: With respect, your Honour, what it recites is what was in the email, that is, that the email said, we hereby elect to waive privilege.

HIS HONOUR: Well, how much clearer can they make it?

MR SENATHIRAJAH: Well, the problem, with respect, your Honour, is to do with section 122 of the Evidence Act. Does your Honour have a copy? I will hand up the relevant extract to your Honour.

HIS HONOUR: Thank you. Just before we go to that, I had understood you to say that it was not clear from the email that there was a waiver of privilege. As at present advised, I should say to you it appears to me that there clearly was but you are going to show me at 122 why that is not so?

MR SENATHIRAJAH: That is right, your Honour.

HIS HONOUR: Thank you.

MR SENATHIRAJAH: Could I take your Honour to section 122(2) which is the provision which deals with an inconsistent use resulting in, in effect, a waiver of privilege.

HIS HONOUR: Yes.

MR SENATHIRAJAH: Importantly, your Honour, in subsection (3), what it, in effect, says is that waiver will be deemed to have taken place where the substance of the relevant evidence is disclosed, so the substance of the evidence is disclosed. So, for example, your Honour, if on 22 May not simply an email but the actual documents were produced – and there were, let us say, one or two, to make the example easy – then we would have no quibble with your Honour’s proposition that there had been, by that, waiver.

But absent the substance of the documents being disclosed there was a risk, your Honour, that the email of and itself did not effect a waiver. It was an intention – it disclosed what the respondents were intending to do, but until and unless the substance of the documents were made known to us there was a risk which is that an argument may be had that the mere sending of the email would not be an inconsistent, if you like, deployment such as to attract the operation of subsection (2).

HIS HONOUR: The disputed documents were identified.

MR SENATHIRAJAH: Yes, your Honour.

HIS HONOUR: And identifiable.

MR SENATHIRAJAH: Yes.

HIS HONOUR: And Ms Whiting said that they waived their claim for privilege over them.

MR SENATHIRAJAH: Yes, your Honour.

HIS HONOUR: Well, what more could one want?

MR SENATHIRAJAH: Well, the problem, your Honour, is that the lack of knowledge on our side – that is, we do not know the full set of documents that would answer the description. Your Honour, this is in the circumstances where we know particular categories were being sought. As to what documents fell within those categories was a matter within the exclusive knowledge of the respondents. We could only specify a category. It would then be for the respondents to say, here are the documents that answer it.

HIS HONOUR: But if they did not give them they would be in breach of their discovery obligations, there being no longer any assertable claim to privilege.

MR SENATHIRAJAH: That is true, your Honour, but from our perspective with three days to go to a trial there was a significant risk that unless we got to the bottom of it there would be prejudice in the running of the trial. Can I make good that proposition, your Honour? Based on that late waiver, the trial judge, Justice Elliott, granted my clients a three-week adjournment.

HIS HONOUR: Right. Well, that is not particularly surprising.

MR SENATHIRAJAH: No, but it supports our proposition that we needed some time to go through – there were two lever arch documents – folders of documents produced.

HIS HONOUR: No, I understand you had to go through them and if you took the view that despite the abandonment of the claim to privilege they had not discovered all the relevant documents presumably you would have gone back to the trial judge and made a further application for discovery which would, had it been substantiated, been irresistible.

MR SENATHIRAJAH: The difficulty with that analysis, your Honour, with respect, is that it presupposes that by simply waiving the email of 22 May there could be no dispute as to whether in fact waiver had taken place, because what had happened across the three tiers of the courts below was an adamant maintenance of the claim for privilege. What we were trying desperately to avoid was being in the position where we accept at face value the email and then find out after the case starts, or part way through the case starting, that there were documents to be produced yet under those categories.

Can I put this proposition to your Honour, please? The respondents were in a position to know whether they had discharged their obligation. If they were as confident as they now say we ought to have been, the matter was simple. They could have either consented to the orders we sought in this Court or they could have done nothing in response to the special leave application, that is, to simply put in an affidavit which said we have complied with the request. That would put an end to any concerns that my clients could have had.

It was a matter solely, your Honour, within the knowledge of the respondents. They knew the categories we were seeking, they knew what documents would fall within it and they knew whether they had complied with that by producing the documents that they had. All within their knowledge, your Honour. They could have done nothing in answer to the special leave application or they could have proposed consent orders from this Court in the terms that were sought in the special leave application. If either of those two things had been done, your Honour, then this would have all been avoided, and they were obvious matters.

Can I take your Honour to the guidance, as I see it, provided by the case law on this application? In our submission, the decision of Justice McHugh of this Court in Re the Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin gives your Honour ample guidance on what ought to occur in this situation. Does your Honour have a copy of that case? It is referred to by our learned friends in their outline.

HIS HONOUR: Yes, thank you. Yes, I do, thank you, Mr Senathirajah.

MR SENATHIRAJAH: This was a case in which the applicant, the so-called prosecutrix, had initiated a proceeding in this Court seeking prerogative relief against the refusal of the respondent Minister to grant her a protection visa. Within days of her instituting that proceeding the Minister reconsidered his decision and granted her a visa, albeit by reference to the prosecutrix’s changed personal circumstances. You can see that at page 627. I do not need to take you to that.

The important matter was that on that visa being granted the prosecutrix ceased to pursue her proceeding in this Court. However, she issued a summons seeking that the Minister pay her costs of the proceeding. The relevant passage I wish to take you to, please, your Honour, is to be found at page 624. About a third of the way down, your Honour, you will see a paragraph commencing “On 22 January 1996”.

HIS HONOUR: Yes.

MR SENATHIRAJAH: Halfway down in that paragraph I commence with the words:

but it is first necessary to state the principles which govern an application for costs when a party elects not to pursue an action because he or she has achieved the relief sought in the action either by settlement or by extra-curial means.

In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.

In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action.

Then, your Honour, if you were to turn over the page to 625 – and this is what I am coming to in the middle of that paragraph:

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile –

They are the key words “became futile”:

the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases.

That is why we say it is the position here. There could be no criticism, your Honour, of the decision to commence the special leave application in this Court, none whatsoever.

HIS HONOUR: No.

MR SENATHIRAJAH: The only matter that arguably arises is the delay between when the email was sent and when we finally irrevocably indicated that we would not be pursuing the action. But the ceasing to pursue the action, your Honour, again, is perfectly rational and explicable. We had got in terms, your Honour, ultimately, agreement from the respondents to production of the documents we had been chasing, as I said, for over a year.

HIS HONOUR: Yes. Are we talking about the costs of the whole of the special leave application or just those subsequent to the waiver of privilege?

MR SENATHIRAJAH: For our part, we are simply seeking no order on the whole of the special leave application.

HIS HONOUR: I appreciate that, but is the no order sought in respect of the whole of the costs of the application or just those subsequent to the waiver of privilege?

MR SENATHIRAJAH: The whole of it, your Honour.

HIS HONOUR: Yes.

MR SENATHIRAJAH: As I said, it was reasonable, in our submission, to take four weeks to review the documents to properly satisfy ourselves that the respondents had in fact provided the relief sought in the special leave application. Can I take your Honour very briefly to the reasons of the trial judge which, in my submission, does bear upon the question of the reasonableness of why a period of four weeks was taken to go through it? It is a two-page ruling on it. In the affidavit material we had not had the benefit of the revised ruling from his Honour Justice Elliott. That came through last week. We forwarded a copy to our learned friends. Can I hand up a copy, please, your Honour?

HIS HONOUR: Yes. Exhibit VM 1, copy of revised ruling of Justice Elliott of 30 May 2018.

MR SENATHIRAJAH: Thank you, your Honour. Can I draw your attention to the last sentence in the first paragraph where his Honour says:

There has clearly been some substantial further disclosure of discovered documents in recent times.

HIS HONOUR: Yes.

MR SENATHIRAJAH: He goes on to say:

I make no assessment about the appropriateness or otherwise of the timing of that disclosure. Decisions can be made sometimes with respect to the conduct of the case or otherwise which mean that previously legitimate decisions about privilege can be changed quite properly.

Then the critical passage, in my submission, begins at line 21:

The simple fact is that there has been late production by the plaintiff –

who are the respondents here:

of previously discovered documents that were the subject of a claim for privilege. It has given rise to a number of issues for the defendants. So that this trial can be conducted in as efficient a way as may be reasonably possible, I think it is appropriate that to give a short period of time so the complications arising from this late waiver may be largely resolved.

As Mr Baykitch deposed, your Honour, there was a three-week adjournment granted on the basis of the late production pursuant to that waiver. So that three week encompasses, your Honour, the four weeks in total that we took to formally abandon – or notify abandoning this proceeding. But your Honour will appreciate that in that same period not only are my clients considering the documents but they are also at the very same time preparing for a 14-week trial that, in part, dealt with these documents.

In my submission, that explains why a four-week period was necessary and why it was reasonable. I would accept, your Honour, that in the absence of those special circumstances I would have very little to say about why our clients took so long to finally decide to take no further step, but that is a very special and, in my submission, reasonable basis on which that took place.

HIS HONOUR: Yes.

MR SENATHIRAJAH: The final point – and I touched upon it earlier – is this. This all could have been avoided, your Honour. The respondents have in their power to do two things, as I said: one, consent to orders in the terms sought; or, two, to simply do nothing in response to the special leave application.

By this stage, your Honour, by 22 May, our clients had filed all the relevant materials for the special leave application. If the respondents were confident that all the documents that were being sought had been produced there was nothing further for them to do. They could simply have put in literally a three-paragraph affidavit saying we have provided all relevant documents. There is no utility in this Court considering the special leave application. If that had been done, your Honour, this fight about the costs would have been entirely unnecessary, save and except for the costs of the - - -

HIS HONOUR: You have brought them here on an application for special leave and directions had been given as to what they were to do in order to prepare for that. They were bound to comply with those directions unless the application for special leave were discontinued or it was ordered by consent or otherwise that it be dismissed. They asked you whether you were going to discontinue, in which case they would not have had to go ahead and continue to comply with the directions of the Court, and you said that you were not prepared to discontinue and therefore they had to continue to comply with the directions of the Court, no doubt at great expense. I cannot see why they should have to pay.

MR SENATHIRAJAH: Your Honour, I do not cavil with any of your propositions, except the last one. They were required to comply with it and they would have complied with it by simply putting in, as I said, a three-paragraph affidavit saying we do not contest the special leave application. There is, however, no utility because we have provided to the applicants that which they have sought. That would be compliance in substance with the directions of this Court and, moreover, that would have been in accordance with the obligations under the Civil Procedure Act (Vic) to not have disputes which have no substance to it. This is the real nub of our grievance, your Honour.

HIS HONOUR: So what you say is they should have put in an affidavit saying we have waived privilege?

MR SENATHIRAJAH: Indeed.

HIS HONOUR: Could you not have done that? They have waived privilege, here is their email.

MR SENATHIRAJAH: No, your Honour, because that would be a submission from us based on the email. They are the only party, with respect, who could without there being any doubt waive once and for all their claim for privilege.

HIS HONOUR: All right. I think I understand.

MR SENATHIRAJAH: They are my submissions, your Honour.

HIS HONOUR: Thank you. Mr Solomon.

MR SOLOMON: Your Honour, I seek to be very short. I wish to make two points only. The first point is to identify the costs in issue with precision. We did that in our written outline. May I repeat it?

HIS HONOUR: Yes.

MR SOLOMON: The costs in issue, the subject matter of the application - it is at paragraph 8 of our outline, your Honour - are the costs my client incurred between 30 May and 21 June. They are the subject of the application. That is the first submission.

HIS HONOUR: Yes.

MR SOLOMON: The second submission is I want to show your Honour three documents. Does your Honour conveniently have on the file and in front of you the affidavit of Christiana McCudden sworn 12 June 2018?

HIS HONOUR: Yes, thank you.

MR SOLOMON: Can I show you three documents? Would your Honour kindly go to CMM-1 first of all?

HIS HONOUR: It has page numbers, could you give them to me – top right corner?

MR SOLOMON: Yes, page 9.

HIS HONOUR: Yes, thank you.

MR SOLOMON: Would your Honour notice that the waiver of privilege order, set out under heading capital “A”, paragraph number 1 at the foot of page 1, sought an order that my clients produce for inspection the matters set out in the first 20 or so lines on the top of page 10?

HIS HONOUR: Yes.

MR SOLOMON: That fight, as your Honour generally knows, was the subject of various controversies. The next relevant piece of information is at exhibit CMM-5.

HIS HONOUR: Page?

MR SOLOMON: Page 131.

HIS HONOUR: Thank you.

MR SOLOMON: Your Honour will not need to ask me a third time. There are a few features of the email but the one I want to identify is this. The language there set out on waiver was – and I think I can submit – intended to be identical to the summons language.

HIS HONOUR: Yes.

MR SOLOMON: So the email recorded the circumstance of waiver, the subject matter of the waiver and the consequence of the waiver which was that approximately two folders of documents would be produced to you today. As your Honour has been told, on the back of that email our learned friends that morning sought and obtained an adjournment of the trial. Third, would your Honour go to page 134.

HIS HONOUR: Yes.

MR SOLOMON: Your Honour will see that on 28 May my principal instructor, Janet Whiting, wrote to the solicitor with carriage of the matter, my learned friend’s instructor, and in advance of us starting work asked whether the application was continuing.

HIS HONOUR: Yes.

MR SOLOMON: The response was that it was. We therefore undertook the work necessary to enable us on 12 June to file submissions and to organise for the affidavit which in limited respects I have taken your Honour to today. In all of those circumstances, it is really not to the point that the waiver rendered this application moot because Viterra is not seeking its costs and it really is to the point that unreasonably my client incurred costs and it is a most straightforward application. Your Honour should dismiss the summons with costs and our learned friends should file the notice of discontinuance they have said they will file. If your Honour pleases.

HIS HONOUR: Mr Senathirajah, any reply?

MR SENATHIRAJAH: No, your Honour.

HIS HONOUR: This is an application for an order that all parties bear their own costs of, and incidental to, the application of Viterra Malt Pty Ltd, Viterra Operations Pty Ltd, Viterra Pty Ltd and Glencore International AG (“the Viterra Parties”) for special leave to appeal to this Court from a judgment of the Court of Appeal of the Supreme Court of Victoria (Whelan, Kyrou and McLeish JJA). The Court of Appeal had dismissed the Viterra Parties’ appeal from a judgment of the Supreme Court of Victoria (Macaulay J) dismissing an appeal from Daly AsJ.

At issue in the proceedings below and what would have been in issue in the application for special leave was a claim by the respondents, Cargill Australia Limited and Cargill Incorporated (“the Cargill Parties”), to privilege over certain documents (“the disputed documents”).

The facts of the matter are, in relevant respects, straightforward. The Viterra Parties first made application by summons dated 18 May 2017 for production of the disputed documents contending that the Cargill Parties had, by their pleadings in proceedings in the Supreme Court, waived their claim to privilege. That application was unsuccessful before Daly AsJ and, as I have said, the Viterra Parties were unsuccessful in their appeals to Macaulay J and to the Court of Appeal.

On 21 May 2018, the Viterra Parties filed in this Court an application for special leave to appeal from the orders of the Court of Appeal. The application stated that the Viterra Parties sought orders that the appeal be allowed and that the Cargill Parties produce for inspection the disputed documents.

On 22 May 2018, the solicitors for the Cargill Parties sent an email to the solicitors for the Viterra Parties as follows:

“The Cargill Parties hereby elect to waive privilege over all documents over which the Cargill Parties have claimed privilege which record or evidence the knowledge of the Cargill Parties, in the period up to and including 31 October 2013, of the Undisclosed Matters (as defined in paragraph 19 of the Second Further Amended Statement of Claim dated 10 July 2017 (the SFASOC)), including all documents which record or evidence the knowledge of the Cargill Parties of:

(a) JWM supplying malt to customers that did not comply with contractual requirements and specifications;

(b) JWM supplying certificates of analysis to customers that misstated the results of analytical testing on the malt, so that the certificate reported that the malt complied with contractual requirements and specifications when it did not;

(c) the Viterra Policies (as defined in paragraph 19 of SFASOC); and

(d) the effect of the Viterra Practices (as defined in paragraph 19 of the SFASOC) on JWM’ s financial and operational performance and JWM’s ability to produce and sell malt:

(i) in the volumes and to the specifications required by customers; and

(ii) in the volumes and for the returns reflected in the Financial and Operational Information (as defined in paragraph 19 of the SFASOC), save for documents brought into existence after 31 October 2013,

save for documents bought [sic] into existence after 31 October 2013 for the dominant purpose of the Cargill Parties obtaining legal services with respect to this proceeding (or anticipated proceedings as the case may be).”

It was further stated in the email:

“You will note that the form above is taken directly from the Glencore/Viterra Parties’ Summons of 18 May 2018 [sic] as filed by the defendants in the matter now the subject of the special leave application.

We are preparing the documents, the subject of the waiver. They will be produced to you today. They are less than 2 folders in volume.”

Copies of the disputed documents were provided by the Cargill Parties to the Viterra Parties over the course of the following week.

On 28 May 2018, the solicitors for the Cargill Parties sent a further email to the solicitors for the Viterra Parties as follows:

“We have just been served, by hand, with a copy of the special leave application and accompanying documents.

Does this confirm that you are continuing with this application?”

On 30 May 2018, the solicitors for the Viterra Parties responded by email as follows:

“We confirm that our clients are continuing with the special leave application. Our clients are currently assessing the implications of the waiver referred to in your email dated 22 May 2018. If this leads to any change in position on the part of our clients, we will advise you accordingly.”

On 21 June 2018, the solicitors for the Viterra Parties sent a letter to the solicitors for the Cargill Parties stating that in light of the Cargill Parties’ waiver of their claim of privilege over the disputed documents, the solicitors for the Viterra Parties had instructions to discontinue the application for special leave on the basis that the parties each bear their own costs.

The ordinary rule when an application for special leave is discontinued is that the applicant pays the respondent’s costs of the application: High Court Rules (Cth) r 41.09.2. Sometimes special circumstances intervene which render it appropriate to order either that there be no order as to costs or, occasionally, that the applicant’s costs be paid by the respondent. Much depends upon the particular facts and circumstances and frequently it comes down to a question of whether one or other party has acted reasonably in making an application or persisting with it after circumstances have changed.

In this case it is not suggested that the Viterra Parties were at fault or acted unreasonably in making their application for special leave. Nor is there material upon the basis of which any judgment could be formed as to the merits of the application. The question which arises is whether in the period following the waiver of privilege by the Cargill Parties on 22 May 2018, the conduct of the parties was such that the Viterra Parties should be relieved of the obligation of paying the costs of the application for special leave.

It has been submitted on behalf of the Viterra Parties that because the waiver of privilege came so late in proceedings before the Supreme Court — some three business days before the matter was set down for an extensive trial — it was necessary, not only for the trial to be adjourned, but for the Viterra Parties to take considerable time in determining whether the documents which had been produced were all of the documents over which the claim for privilege had been asserted and waived. Counsel for the Viterra Parties submitted that all that difficulty could have been alleviated if the Cargill Parties had taken further or clearer steps to establish that they had indeed waived their claim for privilege over all of the disputed documents, for example by consenting to the orders that the Viterra Parties sought in their special leave application. It was contended that it was not unreasonable for the Viterra Parties to persist with their application for special leave after the waiver of privilege while the Viterra Parties remained uncertain as to whether the Cargill Parties had actually provided the disputed documents sought in the application for special leave.

Additionally, it was submitted that the Cargill Parties could have avoided incurring costs in respect of the special leave application by putting on, in place of a response to the application, an affidavit stating that they had waived their claim to privilege.

I do not accept those submissions. As it appears to me, by the email of 22 May 2018 the Cargill Parties made patently clear that whether or not they had been right to assert privilege over the disputed documents, they now waived it and would produce the documents the subject of the claim which had previously been asserted. Those documents were duly produced. From that point on, the application for special leave became pointless and should have been brought to a stop so as to avoid the need to incur further costs in complying with directions that had been given for the preparation of submissions and other documents in opposition to the application. I do not consider that it was at all incumbent upon the Cargill Parties to put on an affidavit stating that they had waived their claim to privilege.

The issue in this Court was not whether the Cargill Parties had waived their claim to privilege by their email of 22 May 2018 but whether the Court of Appeal of the Supreme Court of Victoria was correct in rejecting the contention that the Cargill Parties had waived privilege over the disputed documents by their pleadings in the Supreme Court proceedings. Relevantly, those two issues were unconnected.

In the result, I refuse the application and I shall leave the allocation of costs to the Rules. Do you seek any costs of the application?

MR SOLOMON: Your Honour, yes. Thank you for hearing me, your Honour. We seek the costs of the application and, absent a representation by my learned friend that they will put on a notice of discontinuance, we would ask that your Honour direct that that occur in a reasonable time.

HIS HONOUR: Yes. Mr Senathirajah.

MR SENATHIRAJAH: There is no need for a direction. We will file a notice of discontinuance and I have nothing to say in relation to the matter of the costs of this application.

HIS HONOUR: Thank you. The order of the Court is that the application is dismissed with costs.

MR SENATHIRAJAH: If your Honour pleases.

AT 12.07 PM THE MATTER WAS CONCLUDED