Converging Momentum Pty Ltd and Ors v Birse and Ors [2024] QSC 287

SUPREME COURT OF QUEENSLAND CITATION: Converging Momentum Pty Ltd and Ors v Birse and Ors [2024] QSC 287 PARTIES: CONVERGING MOMENTUM PTY LTD ACN 617 126 968 (first plaintiff) AND STARDUST WITHIN PTY LTD ACN 619 316 899 (second plaintiff) AND RENE GEORGES PENTECOST (third plaintiff) v RUSSELL KEITH BIRSE (first defendant) AND LAKE MULLALLOO PTY LTD ACN 064 082 757 (second defendant) AND KYLE ANDREW WILLIAMS (third defendant) AND RUNAWAY COVE (AUST) PTY LTD ACN 079 797 087 (fourth defendant) AND MICHAEL ANTHONY OAR (fifth defendant) AND 123 BANG PTY LTD ACN 100 176 458 (sixth defendant) FILE NO/S: BS 5982/20 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 6 December 2024 DELIVERED AT: Brisbane HEARING DATE: 1 November 2024 JUDGE: Treston J -- 1 of 12 -- 2 ORDER: 1. The application is dismissed. 2. The defendants are ordered to pay the plaintiffs’ costs of the application on the standard basis CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – PRODUCTION AND INSPECTION OF DOCUMENTS – GROUNDS FOR RESISTING PRODUCTION – PRIVILEGE – CLIENT LEGAL PRIVILEGE – WAIVER OF PRIVILEGE – where the defendants apply for orders that the plaintiffs disclose two legal advices, which were provided by the plaintiffs’ solicitors in relation to the sale of shares in a company – where the defendants made certain representations to a representative of the first and second plaintiffs about the sale of a company – where the plaintiffs entered into an agreement to purchase 10 per cent of the company and submits that it relied solely on the defendants’ representations in so doing – where the plaintiffs obtained legal advice about the purchase of the company – where the plaintiffs assert privilege over those advices – where the defendants plead that the plaintiffs relied on the advices in making the decision to purchase the shares – whether the plaintiffs expressly or impliedly waived privilege over the advices – whether the advices ought to be disclosed BT Australasian Pty Ltd v New South Wales [1998] HCATrans 270, cited Chen & Ors v City Convenience Leasing Pty Ltd & Anor [2005] NSWCA 297, followed Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341, cited Council of the NSW Bar Association v Archer (2008) 72 NSWLR 236, cited Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, cited Mann v Carnell (1999) 201 CLR 1, followed Osland v Secretary, Department of Justice (2008) 234 CLR 275, cited The Queensland Local Government Superannuation Board v Allen [2016] QCA 325, followed COUNSEL: DM Logan KC with C Stackpoole for the plaintiffs/respondents BW Wacker for the defendants/applicants SOLICITORS: Irish Bentley Lawyers for the plaintiffs/respondents Cowen Schwartz Marschke for the defendants/applicants -- 2 of 12 -- 3 Introduction [1] The defendants make application for orders that the plaintiffs make disclosure of documents pertaining to certain advice the plaintiffs received regarding the purchase of shares in a company, Rapid Securities Ltd. The application is centred around two legal advices dated 16 and 22 June 2017, and an accountant’s advice. Those advices were provided by the plaintiffs’ solicitors, Irish Bentley and the plaintiffs’ accountants, BDO. [2] At the heart of the application is the question of whether the plaintiffs have impliedly waived privilege over those otherwise privileged advices. Background [3] The chronology and the pleadings are important background. [4] In late September 2016 to mid-July 2017, it is alleged that the defendants made certain representations to a representative of the first and second plaintiffs, Mr Pentecost, about the value of Rapid Securities. Those representations about the value of Rapid Securities and its future prospects included a representation that the company “was a 70 million dollar company”.1 [5] The plaintiffs plead that the representations were relied upon by the plaintiffs in entering into the Terms Sheet and the Share Sale Agreement.2 The plaintiffs allege that the misrepresentations were misleading or deceptive, or likely to mislead or deceive, and that the conduct has caused loss. The claimed loss is the whole of the $7 million which the plaintiffs invested, or alternatively, a portion of it. [6] On the plaintiffs’ pleaded case, only the representations made by the defendants induced Mr Pentecost to sign the Share Sale Agreement, and they were the only representations which he relied upon. [7] Prior to proceeding with the purchase, probably in late April 2017 and no later than 10 May 2017, Mr Pentecost had retained his lawyers, Irish Bentley, and a firm of accountants, Marsh, to act on his behalf in conducting due diligence in relation to the purchase of the shares in the company. [8] On 24 May 2017, Marsh wrote to Mr Pentecost (care of Irish Bentley) stating: “Based on the proposed valuation of the entire group being $70 million, we are of the opinion that the business unit is grossly overvalued. The proposed buy in of 10% shareholding at $7 million means you will be paying a huge premium on the real value of the shares… As such we do not recommend you proceed with the shareholding purchase at the current price of $7 million. However, if you still wish to proceed for the purchase, we recommend a full due diligence be conducted prior to signing any 1 Statement of claim [16]-[19]. 2 Statement of claim [32A]-[33]. -- 3 of 12 -- 4 purchase contracts and shareholder agreements. We have prepared a fee quote for this service for your review.” (my underlining) [9] There is no claim of privilege over the Marsh advice. [10] There is no evidence that Mr Pentecost accepted Marsh’s recommendation that it conduct due diligence on his behalf. [11] In June 2017, a second accounting report was prepared by another firm, BDO, which report was said to be for the dominant purpose of Irish Bentley providing legal advice to Mr Pentecost. The plaintiffs assert privilege over that BDO report. Irish Bentley then provided legal advices to Mr Pentecost on 16 and 22 June 2017. Again, the plaintiffs assert privilege over those legal advices. [12] On 4 July 2017, Mr Pentecost, on behalf of the first plaintiff, signed a non-binding Terms Sheet to purchase 10 per cent of the issued shares in the company for $7 million. On 17 July 2017 the parties signed the Share Sale Agreement selling that 10 per cent for $7 million. In so contracting to purchase, Mr Pentecost pleads that he relied solely upon the representations made by the defendants about the value of the shares. The pleadings [13] The plaintiffs’ pleaded case is that it was only the defendants’ representations which induced Mr Pentecost to sign the Share Sale Agreement.3 Responding to those allegations, the defendants plead a denial of the reliance on the Representations, and further plead that the plaintiffs relied upon: (a) the advices of Irish Bentley, who had been retained to advise in relation to the Share Sale; (b) the Marsh advice; and (c) Mr Pentecost’s own knowledge and experience as an accountant.4 [14] By way of reply, the plaintiffs admit that: (a) Irish Bentley was retained to advise in relation to the Share Sale; (b) BDO and Marsh were retained to prepare a due diligence advice to Irish Bentley regarding the Share Sale; (c) Irish Bentley did in fact provide advice in relation to the Share Sale, [15] Although the plaintiffs admit they received the advices from Irish Bentley and Marsh, the plaintiffs deny that they relied on their advice,5 and claim privilege in relation to the advices of Irish Bentley and BDO. [16] The question which arises from the pleading therefore is whether the plaintiffs have expressly or impliedly waived privilege over those advices. 3 Statement of Claim at [32A] and [33]. 4 Defence at [33]. 5 Reply at [39(c)]. -- 4 of 12 -- 5 Legal principles [17] Legal professional privilege exists to protect the confidentiality of communications between a lawyer and a client. The privilege belongs to the client, and therefore it is only the client who may relinquish that entitlement.6 [18] Privilege may be waived expressly or impliedly. Disputes as to implied waiver usually require the court to consider whether the particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Such waiver is said to be “imputed by operation of law”.7 As a consequence, even though the party may not have intended to waive the privilege, they may have done so. The focus therefore is on the conduct of the privilege holder, viewed objectively, and not on their subjective intention.8 In Mann’s case the High Court majority said: “What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and the maintenance of the confidentiality; not some overriding principle of fairness operating at large.”9 [19] Absent waiver, the fact that the documents might be relevant does not compel their production.10 Whether the privilege has been waived is to be determined in light of the circumstances of the particular case, and by reference to any considerations of fairness arising in the context of the case11 but it must be remembered that it is a matter of fact and degree by considering the objective consequence of the party’s conduct in revealing some, but not all, of the particular advice. The search is not for the actual or imputed intention of the party said to have waived the privilege.12 [20] In Queensland Local Government Superannuation Board v Allen,13 Burns J, with whom McMurdo P and Philippides JA agreed, summarised the applicable principles as follows: “[69] The decisions just examined inform the following summary of the principles applicable to a determination as to whether legal professional privilege has been impliedly waived: (a) a person may waive privilege without intending that result; the test is objective and privilege may be waived regardless of the subjective intention of the privilege holder; (b) privilege will be waived where the conduct of the privilege holder is inconsistent with the maintenance 6 Mann v Carnell (1999) 201 CLR 1 at [28] per Gleeson CJ, Gaudron, Gummow and Callinan JJ. 7 Mann’s case at [29]. 8 The Queensland Local Government Superannuation Board v Allen [2016] QCA 325 at [52]. 9 Mann’s case at [29]. 10 Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236 at [48]. 11 Osland v Secretary, Department of Justice (2008) 234 CLR 275. 12 Osland’s case per Kirby J at [45]. 13 [2016] QCA 325. -- 5 of 12 -- 6 of confidentiality in the communication which the privilege would otherwise protect; (c) the focus is on the conduct of the privilege holder, not the party attempting to destroy the privilege; (d) whether there is relevant inconsistency is to be evaluated in accordance with the context and circumstances of the case and in the light of any considerations of fairness arising from that context and those circumstances; (e) the privilege will not be lost merely because there has been a reference by the privilege holder to the privileged communication in a pleading or an affidavit, although it will be lost if the advice is reproduced in full in the pleading or affidavit; (f) whether a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of the advice as a whole so as to amount to an implied waiver with respect to the whole of the advice will again depend on the context and circumstances of the case; (g) in such cases, the context can include the nature of the matter in respect of which the advice was received, the evident purpose behind making the relevant disclosure and the legal and practical consequences of limited rather than complete disclosure; (h) where there has been disclosure of a privileged communication contained in the document, and the document deals with a single subject-matter, it will be unfair to allow a party to use part of the document and claim privilege as to the remainder; at least so far as the document concerns the same subject-matter.” [21] Burns J went on to observe that in the application of those principles to any given case, the court must analyse the acts of the privilege holder that are said to be inconsistent with the maintenance of privilege in the relevant communication. Because the result of any such analysis will turn on the particular context and circumstances of the case at hand, other cases in which implied waiver has been considered will provide only limited assistance. Nevertheless, one of the broad themes which emerge from the cases is “issue waiver”, being where the waiver is said to arise in connection with the prosecution or defence of a litigated claim whereby otherwise privilege communication is put in issue. In relation to this, Burns J said: “[71] In cases of this kind, it has been held that where “the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which -- 6 of 12 -- 7 necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication”, the privilege in the communication will be waived. It has also been held that it “is not apparently open to another party to litigation to force waiver of a party’s legal professional privilege by making assertions about, or seeking to put in issue, that party’s state of mind”. Indeed, that is just another way of saying that implied waiver can only come about through the acts or omissions of the privilege holder, and not the party seeking to destroy the privilege. Waiver cannot be contrived by such a party, whether by the contents of that party’s pleading or otherwise. Lastly, it has been held that the question is not whether the privilege holder has put their state of mind in issue in the proceeding but whether the contents of an otherwise privileged communication have either directly or indirectly been put in issue by the privilege holder. That may occur where a party pleads reliance on the contents of legal advice to justify a claimed state of mind but it will not occur where the party is merely joining issue with an allegation made by the opposing party that he, she or it possessed a particular state of mind. The “mere fact that a party pleads a cause of action that includes their state of mind as a material fact, or otherwise puts their state of mind in issue in the proceedings, does not necessarily give rise to an implied waiver in respect of legal advice that may have been received by the party, even if that legal advice may be relevant to the party’s state of mind”. In the end, the question is whether, as part of the privilege holder’s case, an assertion has been made that lays open the privileged communication to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege. As Hodgson JA held in Council of the New South Wales Bar Association v Archer: “It is not enough to bring about a waiver of client legal privilege that the client is bringing proceedings in which the content of the privileged communications could, as a reasonable possibility, be relevant and of assistance to the other party. For the client to do this is not inconsistent with the maintenance of the privilege, and does not give rise to unfairness of the type in question. What would involve inconsistency and relevant unfairness is the making of express or implied assertions about the content of the privileged communications, while at -- 7 of 12 -- 8 the same time seeking to maintain the privilege.”” (footnotes omitted) [22] Both parties rely on this passage but with emphasis on different parts. [23] The plaintiffs contend that the argument in this case is about whether the plaintiffs have made an assertion, express or implied, about the contents of the confidential communication, being the legal advices in the way described by Burns J at [71] above. They contend that they have not. They submit that they have not put state of mind in issue on the pleadings, except to the extent that the pleading exposes that the only representation that they relied upon was the representation made by the defendants. [24] The plaintiffs submit that they did not plead any issue about the legal advice received, but expressly pleaded only that representations were made by the defendants and that the plaintiffs relied upon them. In fact, the plaintiffs submit that the defendants have contrived to force waiver of the otherwise privileged advice by seeking to put in issue the plaintiffs’ state of mind by reference to advices that the plaintiffs had received from their solicitors when the plaintiffs’ pleaded case was that only the defendants’ representations were relevant to their state of mind. [25] Finally, the plaintiffs submit that to the extent that the pleading put in issue the plaintiffs’ state of mind as a material fact, it did not give rise to an implied waiver in respect of legal advice that may have been received by them. Finally, the plaintiffs contend that the statement from Archer14 is important, being that it is not enough for the document to be relevant and of assistance to the other party, it is the notion of inconsistency between the conduct of the person entitled to the privilege and that person’s maintenance of the privilege that is importance. [26] In contrast, the defendants contend that it is the second part of the test articulated by Burns J at [71] in Allen’s case where the court ought to focus its attention, and that is whether the plaintiffs have, by their conduct, “lay open” the confidential communication to scrutiny and, by such conduct, there is an inconsistency which arises between the making of the assertion and the maintenance of the privilege. The defendants contend that the assertion that the plaintiffs only relied upon the representations by the defendants, and did not rely upon the legal advices would give rise to the relevant unfairness, being the implied assertion that the content of the privileged communications either did not contain any advice relevant to the value of the asset which the plaintiff was seeking to purchase, or that if it did, that the plaintiffs did not rely upon that advice. Application and conclusion [27] Focusing as I must on the conduct of the privilege holder, the uncontested chronology, read together with the pleaded case, demonstrates that the plaintiffs have put Mr Pentecost’s state of mind and therefore the state of mind of the companies he controlled, in issue as a material fact by the assertion that they relied upon the representations made by the defendants between late September 2016 and mid-July 2017. The plaintiffs effectively seek to silo that state of mind brought about by the representations from privileged legal advice they later received. I 14 Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236. -- 8 of 12 -- 9 accept and proceed on the basis that the question I must consider is not however whether the privilege holder has put their state of mind in issue as such, but whether the contents of the otherwise privileged communication has directly or indirectly been put in issue by the privilege holder. This involves an analysis of the acts of the privilege holder that are said to be inconsistent with the maintenance of privilege in the relevant communication. [28] In late April or early May 2017, Mr Pentecost, on behalf of the plaintiffs, had retained Irish Bentley and Marsh to act on his behalf in conducting due diligence in relation to the purchase of the shares in the company. The retainer was therefore prior to the purchase. [29] Marsh wrote to Mr Pentecost, care of Irish Bentley, on 24 May 2017, expressing the strongly worded opinion that the purchase was “grossly overvalued”, that the plaintiffs would be paying “a huge premium on the real value of the shares” and recommended not proceeding with the purchase. [30] It can be inferred for the purpose of this application, but without deciding the issue, that Mr Pentecost’s state of mind may have been influenced by the Marsh advice, because the plaintiffs then sought out another accounting firm, BDO, to prepare a report “for the dominant purpose of Irish Bentley Lawyers providing legal advice…” to Mr Pentecost. Perhaps Mr Pentecost rejected Marsh’s advice as so inconsistent with the defendant’s representations that he had relied upon that he wished for a second opinion. Perhaps he merely wished to cross check the opinion Marsh had expressed. Whatever he thought at the time of the Marsh advice, his state of mind in terms of reliance is squarely raised by him on the pleadings. [31] The Irish Bentley advices were obtained shortly after. They are dated 16 and 22 June 2017. The plaintiffs’ case is not that they did not receive the Irish Bentley advices, or did not read them, it is only that they did not rely upon them.15 The plaintiffs submit that while there may be an implied assertion of waiver of privilege if a party asserted that they have received certain advice (over which they claim privilege) and had then acted a certain way, where a party had admitted receiving advice but disclaimed reliance upon it there could be no such waiver. [32] The reply admits that Irish Bentley was retained to act and advise in relation to the first plaintiff’s purchase of shares in Rapid Securities from the second defendant. There is therefore, on the pleadings, at least an implied assertion that the content of the advice was in relation to that purchase. Whether the content included that the shares had a value consistent with the representations, alternatively that the shares were grossly overvalued, or something else, the claim of privilege could not be made unless Irish Bentley gave legal advice on the topic. That was the approach adopted by the New South Wales Court of Appeal in Chen’s case,16 and it seems to me, respectfully, to be correct. [33] I accept however that the mere fact that a party puts its state of mind in issue on the pleadings does not, of itself, give rise to an implied waiver of privilege.17 Nor does the mere joinder of issue with a state of mind allegation become determinative of 15 Further amended reply at [39(c)]. 16 Chen & Ors v City Convenience Leasing Pty Ltd & Anor [2005] NSWCA 297 at [44]. 17 Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 at [65]; and Allens’s case at [71]. -- 9 of 12 -- 10 the question. Rather the question becomes whether the privilege holder has directly or indirectly put the contents of the otherwise privileged communications in issue in the litigation, either in making a claim or by way of defence.18 It is not enough to bring about the waiver of privilege that the content might be relevant and of assistance to the other party. But what would involve inconsistency and relevant unfairness (in the Mann context) is making an assertion, express or implied, about the content of the privileged communication while at the same time seeking to maintain the privilege.19 [34] The defendant submits that Chen’s case is of assistance in determining the issue. In that case, the defendant leased a shop from the plaintiff. A dispute arose that the Chen’s agent had made misleading or deceptive representations about air- conditioning at the premises. The lease contained a special condition pertaining to the air-conditioning which condition was brought to the defendant’s solicitor’s notice prior to execution. During the trial, the plaintiff sought to cross-examine the defendant in relation to the legal advice he received about the special condition. On each occasion, the cross-examination was objected to on the basis of a claim for legal professional privilege, and the objection was upheld. The Court of Appeal found error in that approach, concluding on the facts that the conduct in maintaining the assertion of reliance on Chen’s agent was inconsistent with the maintenance of the confidentiality with respect to the advice he received. In the interests of fairness, the Court of Appeal concluded that there had been waiver of the privilege imputed by operation of law. Notably, the Court of Appeal’s emphasis was on the receipt and consideration of the advice relevant to the matters in issue, not to the reliance upon it, the latter being the distinction the plaintiffs seek to make here. The Court of Appeal ordered disclosure of the advice concluding that the claim of privilege could not have been made unless the advice was directed to the issue. [35] Chen is not binding on this court as Allen is. The emphasis in Chen was directed to relevance, whereas Allen is more squarely directed to the inconsistency issue. [36] Separately, as to reliance, in Telstra Corporation Ltd v BT Australasia Pty Ltd,20 the majority observed that where the party puts in contest the issue of reliance, and that contest cannot fairly be assessed without examination of the advice, the party is taken to have waived the privilege which would otherwise attract to the material. The High Court granted special leave to appeal from the decision in Telstra and, during argument McHugh J observed that if the majority’s decision was correct, it had “…the potential to make great inroads into legal professional privilege”.21 The appeal was ultimately compromised prior to the hearing, so the Full Court’s decision stands, but I am not bound by it, and it should arguably be approached with some caution. [37] Ultimately, I am bound to follow the approach in Allen’s case. [38] I am unable to find that there would be inconsistency between the privilege holder’s conduct and the maintenance of the claim of privilege. The content of the advices have not either directly or indirectly been put in issue by the privilege holder. All 18 Rio Tinto’s case at [65]. 19 Council of the NSW Bar Association v Archer (2008) 72 NSWLR 236 at [48]. 20 (1998) 85 FCR 152 at 166-7. 21 BT Australasian Pty Ltd v New South Wales [1998] HCATrans 270. -- 10 of 12 -- 11 that the privilege holder has done in reply to a pleaded case that the plaintiffs relied upon Irish Bentley is to deny that they have done so. It is difficult to conclude that there is any inconsistency in so pleading by way of reply, particularly when the plaintiff did so, it seems, as a mere explanation for the denial.22 I do not consider that by making that denial, the plaintiffs have “laid open” the advice in the way described by Burns J. [39] Further, as to relevant unfairness (in the Mann context), here, it seems likely that Mr Pentecost would be cross-examined on the extent to which he relied upon the defendants’ alleged representations, but particularly in light of the Marsh advice that the shares were grossly overvalued. Likewise, the defendant might seek to cross- examine him on the Irish Bentley advice. That cross-examination would of course be much more difficult without having seen the advice first, cross examining in the dark being a perilous journey.23 While I accept that that cross examination might be relevant and helpful to the defendant, that is not the test. It is not in my view unfair in the Mann inconsistency context, for a number of reasons. [40] First, legal professional privilege is a rule of substantive law. It is of importance in promoting the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisors.24 It ought not be lightly chipped away. [41] Second, is the paramountcy of this public interest over a more general public interest which requires that in the interests of a fair trial, litigation ought to be conducted on the footing that all documentary evidence is available. In Cross on Evidence, the learned authors describe that, as a head of privilege, legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision.25 In Baker v Campbell,26 Wilson J said that the immunity encouraged the public to obtain legal advice often resulting in the resolution of a dispute, or the limiting of issue, thus reducing the burden on the court system. [42] Third, the practical consequence of the successful claim of privilege may be that the party who needs to evidence to discharge the burden of proof will fail. Here, the plaintiffs need to satisfy the court that they relied upon the defendants’ representations as to the company’s value. That the plaintiffs expressly disavow reliance on the Irish Bentley advices might suggest that Irish Bentley must have counselled against the purchase, but the plaintiffs pressed on against the advice. That might well make it difficult for the plaintiffs to prove their reliance on the defendants’ representations was reasonable in all the circumstances. I cannot decide that issue, but it is one which is open. [43] Fourth, and related to the third, while an adverse inference cannot be drawn from the claim of privilege itself, the tribunal of fact can still draw an inference from the available evidence as to what the advice might have contained. The combination of the facts that the plaintiffs did not rely upon the advice and continued with the purchase, might well lead a court to conclude that Irish Bentley also counselled 22 UCPR rule 166. 23 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [62]. 24 Grant v Downes (1976) 135 CLR 674 at 684 (overturned, but not on this issue). 25 At [25220] and the authorities referred to therein. 26 (1983) 153 CLR 52 at 94. -- 11 of 12 -- 12 against the purchase as it is known Marsh did (being advice the plaintiffs did not follow). Again, I do not have to decide that issue, but the relevant unfairness to the defendant might be balanced by the inference plainly open. [44] For those reasons, I consider the relative unfairness in the Mann context, when considered through the prism of inconsistency, leads to the conclusion that there has been no conduct by the plaintiffs that has led to the waiver of legal professional privilege. [45] The application is dismissed. [46] The defendants are ordered to pay the plaintiffs’ costs of the application on the standard basis. -- 12 of 12 --