Andrianakis v Uber Technologies Inc; Taxi Apps Pty Ltd v Uber Technologies Inc
[2022] VSC 196
•26 April 2022
IN THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LISTBETWEEN:
S ECI 2019 01926
NICOS ANDRIANAKIS Plaintiff v UBER TECHNOLOGIES INCORPORATED & ORS
(according to the attached Schedule)Defendants AND:
S ECI 2020 01585
TAXI APPS PTY LTD ACN 149 538 616 Plaintiff v UBER TECHNOLOGIES INCORPORATED & ORS
(according to the attached Schedule)Defendants
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JUDGE:
Matthews AsJ
WHERE HELD:
Melbourne
DATE OF HEARING:
7 February 2022
DATE OF RULING:
26 April 2022
CASE MAY BE CITED AS:
Andrianakis v Uber Technologies Inc & Ors; Taxi Apps Pty Ltd v Uber Technologies Inc & Ors
MEDIUM NEUTRAL CITATION:
[2022] VSC 196
First Revision: 27 April 2022
Second Revision: 19 May 2022---
PRACTICE AND PROCEDURE – Legal professional privilege – Establishment of dominant purpose where in-house counsel are involved – Waiver – Whether documents prepared or communications made in furtherance of the commission of offences – Where the commission of offences is a fact in issue in the proceeding – Evidence Act 2008 (Vic), ss 118, 119, 122, 125 – Amcor Ltd v Barnes [2011] VSC 341, referred to – Banksia Securities Ltd v Trust Co [2017] VSC 583 – Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151, referred to – Cargill Australia Ltd v Viterra Malt Pty Ltd [2017] VSC 126, referred to – IOOF Holdings Ltd v Maurice Blackburn Pty Ltd [2016] VSC 311 referred to – Talacko v Talacko [2014] VSC 328, referred to.
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APPEARANCES - S ECI 2019 01926
Counsel Solicitors For the Plaintiff Ms M Szydzik
with Ms A MobriciMaurice Blackburn For the Defendants Mr D R Sulan SC
with Ms A CampbellHerbert Smith Freehills APPEARANCES – S ECI 2020 01585 For the Plaintiff Mr T Bannon SC with
Mr R A Yezerski &
Mr A EmmersonCorrs Chambers Westgarth For the Defendants Mr D R Sulan SC
with Ms A CampbellHerbert Smith Freehills TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Background......................................................................................................................................... 4
Subject matter of the proceedings............................................................................................... 4
Andrianakis Proceeding..................................................................................................... 4
Taxi Apps Proceeding......................................................................................................... 6
Procedural background regarding the subject matter of this ruling..................................... 8
The Defendants’ discovery................................................................................................. 8
Privilege challenges............................................................................................................. 9
Orders made by the Court regarding privilege challenges........................................... 9
The parties’ preparation of the privilege challenges, including for this hearing..... 11
Issues for determination in this ruling..................................................................................... 12
Evidence............................................................................................................................................. 14
General principles regarding legal professional privilege...................................................... 15
Statutory provisions.................................................................................................................... 15
Applicable Principles.................................................................................................................. 17
Issue 1: Have the Defendants provided sufficient evidence to establish their privilege claims?........................................................................................................................................................ 19
Nature of the evidence relied upon by the Defendants........................................................ 19
Mr Andrianakis’ submissions.......................................................................................... 19
Taxi Apps’ submissions.................................................................................................... 21
The Defendants’ submissions.......................................................................................... 22
Analysis............................................................................................................................... 23
Dominant purpose...................................................................................................................... 25
Whether the dominant purpose for the creation of the documents/communications is a privileged purpose – claims based on the Litigation Limb............................. 28
Mr Andrianakis’ submissions............................................................................ 29
Taxi Apps’ submissions....................................................................................... 29
The Defendants’ submissions............................................................................. 29
Analysis30
Whether the dominant purpose for the creation of the documents/communications is a privileged purpose – claims involving Uber In-House Counsel.................... 31
Mr Andrianakis’ submissions............................................................................ 31
Taxi Apps’ submissions....................................................................................... 36
The Defendants’ submissions............................................................................. 40
Analysis47
Whether aspects of the conduct of the Defendants’ discovery casts doubt upon the legitimacy of their privilege claims......................................................................................................... 51
Relevant evidence.............................................................................................................. 51
The Plaintiffs’ submissions............................................................................................... 52
The Defendants’ submissions.......................................................................................... 53
Analysis............................................................................................................................... 54
Summary of outcome in respect of Issue 1.............................................................................. 54
Issue 2: Have the Defendants waived privilege?....................................................................... 56
Summary of principles drawn from the parties’ submissions............................................. 57
Analysis and summary of outcome in respect of Issue 2...................................................... 59
Issue 3: Does the Misconduct Exception apply here such that the Defendants are not able to rely on their privilege claims?......................................................................................................... 59
General principles....................................................................................................................... 60
Mr Andrianakis’ submissions.......................................................................................... 60
Taxi Apps’ submissions.................................................................................................... 64
The Defendants’ submissions.......................................................................................... 66
Analysis............................................................................................................................... 73
Application of the Misconduct Exception............................................................................... 75
Mr Andrianakis’ submissions.......................................................................................... 75
Identification and commission of the offences................................................ 75
Furtherance of the offences................................................................................. 78
Taxi Apps’ submissions.................................................................................................... 85
Identification and commission of offences....................................................... 85
Furtherance of offences....................................................................................... 86
The Defendants’ submissions.......................................................................................... 90
Identification and commission of the offences................................................ 90
Furtherance of the offences................................................................................. 91
Analysis............................................................................................................................... 93
Identification and commission of the offences................................................ 93
Furtherance of the offences................................................................................. 95
Acceptance of Taxi Apps’ alternative submission......................................... 103
Summary of outcome in respect of Issue 3............................................................................ 103
Review of sample documents...................................................................................................... 104
Conclusion....................................................................................................................................... 104
HER HONOUR:
Introduction
1 This ruling concerns claims in respect of legal professional privilege by the defendants in each proceeding, such that certain documents are able to be withheld from inspection by the plaintiffs following discovery, either in whole or in part.
2 These two proceedings have been case managed together, and the issues in each are very similar. In proceeding S ECI 2019 01926 (‘Andrianakis Proceeding’), the plaintiff (‘Mr Andrianakis’) makes a number of claims against seven defendants, which are specified companies in the Uber group (‘Defendants’). Mr Andrianakis makes his claims on his own behalf and on behalf of a number of group members, this being a class action proceeding. In proceeding S ECI 2020 01585 (‘Taxi Apps Proceeding’), the plaintiff Taxi Apps Pty Ltd (‘Taxi Apps’) makes similar claims against the same seven Defendants. Unless it is necessary to distinguish between them, I will refer to Mr Andrianakis and Taxi Apps as the Plaintiffs. I will describe the claims later in these reasons.
3 The parties have been making discovery of documents in accordance with previous orders of the Court. Having done so, the Plaintiffs have issued summonses seeking production to them of certain documents over which the Defendants have claimed privilege, with those claims being either over the whole of a document or part thereof. In the latter instance, partly privileged documents have been produced by the Defendants to the Plaintiffs in redacted form. In other words, the Plaintiffs have challenged a number of the privilege claims made by the Defendants.
4 The Defendants rely on the following materials in pressing their privilege claims:
(a) affidavit of Cameron Hanson affirmed 21 December 2021 (‘First Hanson Affidavit’). Mr Hanson is a partner at Herbert Smith Freehills (‘HSF’), solicitors for the Defendants in both proceedings;
(b) affidavit of Anuambikai Annam Ambikaipalan affirmed 17 December 2021 (‘Ambikaipalan Affidavit’). Ms Ambikaipalan is a Senior Director and the Head of Asia-Pacific Legal at Uber Technologies Incorporated (ie the first defendant);
(c) affidavit of Mr Hanson affirmed 2 February 2022 (‘Second Hanson Affidavit’);
(d) written submissions dated 21 December 2021 (‘Defendants’ Submission’); and
(e) written submissions in reply dated 2 February 2022 (‘Defendants’ Reply Submission’).
5 Mr Andrianakis relies on the following materials in challenging the Defendants’ privilege claims:
(a) affidavit of Elizabeth O’Shea affirmed 19 January 2022 (‘O’Shea Affidavit’). Ms O’Shea is a principal at Maurice Blackburn Lawyers (‘MB’), solicitors for Mr Andrianakis and the group members; and
(b) written submissions dated 19 January 2022 (‘Andrianakis Submission’).
6 Taxi Apps relies on the following materials in challenging the Defendants’ privilege claims:
(a) affidavit of Michael Russell Catchpoole affirmed 19 January 2022 (‘Catchpoole Affidavit’). Mr Catchpoole is a partner at Corrs Chambers Westgarth (‘Corrs’), solicitors for Taxi Apps; and
(b) written submissions dated 19 January 2022 (‘Taxi Apps Submission’).
7 In addition, the Plaintiffs rely on a bundle of documents provided to the Court and the Defendants prior to the hearing (‘Tender Bundle’), which I understand are documents extracted from the Defendants’ discovery, and the parties all made extensive oral submissions at the hearing.
8 For the reasons which follow, I have made findings in respect of the key issues and applied them to each of the disputed Sample Documents. In very general terms, I have found that:
(a) the Defendants have provided sufficient evidence to establish their claims to legal professional privilege on the basis of seeking legal advice, subject to my confirmation of that by reviewing the Sample Documents. In some instances, legal advice has not been established as the dominant purpose of the communication or document;
(b) the Defendants have not established their claims to legal professional privilege on the basis of actual or anticipated litigation, where that is relied upon in respect of certain of the Sample Documents;
(c) there is sufficient evidence that the Defendants’ in-house lawyers were likely to be providing legal advice, however each of the relevant Sample Documents need to be reviewed to assess the dominant purpose of the document or communication, in light of my Uber In-House Counsel Findings (see paragraph 142 below) and taking the approach set out in paragraph 143 below;
(d) the Plaintiffs have not adduced sufficient evidence to establish waiver of legal professional privilege where that is contended in respect of certain of the Sample Documents; and
(e) the exception for misconduct applies in the circumstances of this case such that the Defendants are not able to rely on their privilege claims in respect of legal advice obtained after 23 January 2014 in Victoria and 14 April 2014 in New South Wales, Queensland and Western Australia in respect of aspects of the operation of the ridesharing platform UberX (‘UberX’) such as launching and continuing to provide UberX using unlicensed drivers, avoiding enforcement activity or detection, and dealing with fines and prosecutions and drivers providing UberX services (‘UberX Partners’) about those, including supporting UberX Partners.[1]
[1]See paragraphs 280, 287 and 291 below.
Background
Subject matter of the proceedings
Andrianakis Proceeding
9 Justice Macaulay has had occasion to publish three separate rulings in relation to aspects of the Andrianakis Proceeding. In the first of those rulings his Honour has succinctly summarised the facts alleged in the Andrianakis Proceeding, which I gratefully adopt and set out below:[2]
[2]Andrianakis v Uber Technologies (Ruling No 1) [2019] VSC 850 (‘Ruling No 1’), [9]-[15]. His Honour indicated that the summary was derived from the statement of claim and the documents referred to in it. Note that the Uber entities referred to in the extract are the Defendants as I have defined them.
Broadly speaking, the UberX ride-sharing service consists of a system for delivering a commercial point-to-point passenger transport service whereby a prospective passenger, the Rider, requests a driver, the UberX Partner, to collect him or her from one designated point and transport him or her to another, for a fee. The request is made via an app (a software application) installed on a smartphone and is received by the UberX Partner on an associated app installed on that person’s smartphone. Once the passenger transport service has been supplied, a fee is debited from the Rider’s funds by means of an electronic funds transfer to an Uber entity. A share of the fee is then distributed electronically to the UberX Partner. These two apps and the software that lies behind them are central to the operation of the UberX service.
The promoters and proprietors of the UberX service, that is, the Uber entities, do not own a fleet of cars nor do they employ a workforce of drivers. Rather, they established the software and digital platform by and upon which the service is conducted; recruited drivers, the UberX Partners, as independent contractors who were willing to perform the service using their own vehicles; made the two apps (the rider app and the driver app) available to Riders and UberX Partners respectively to enable them to find one another by making and responding to a request for a transport service; promoted the service; and generally provided necessary administrative and financial infrastructure.
In each of the four Australian States where the UberX service commenced, there was an established regime of taxi-cab, hire car, limousine and/or like services supplying commercial point-to-point passenger transport services. These existing services were regulated by local regulations in each State, typically requiring the drivers, owners and operators of such services to be licensed or accredited to supply the relevant service and to only use vehicles that were also licensed or accredited for such use.
Regulations extended, amongst other things to matters such as requiring payment of licence fees, restricting the assignment of licences, stipulating the qualifications or credentials of drivers and fixing standards for vehicles. Licences were usually finite in number and, for that reason, acquired a tradeable value. They constituted a valuable commodity in the business of the service provider.
Adherence to the regulations was enforced by laws which made it an offence to own or operate a commercial passenger transport service without holding the requisite licence or accreditation, or to use an unauthorised vehicle for such a service. Arguably, the practical effect of the regulations was that they created and upheld a form of market protection for those holding the requisite licences and accreditation in the supply of commercial point-to-point passenger transport services.
When UberX services began in Australia, the UberX Partners, so it is alleged, typically were neither licensed or accredited to be drivers, owners or operators for the provision of commercial passenger transport services in any of the four States. Nor, it is said, were their vehicles typically licensed or accredited for use in the provision of such services. Accordingly, so it is alleged, the provision of the UberX service in the four Australian states typically involved breaches of the local laws and regulations which regulated the supply and operation of commercial point-to-point passenger transport services.
Not only that, the introduction of the UberX service was said to have had a dramatic, adverse effect on the incomes of the incumbent passenger transport providers and of the value of the businesses — that is to say, upon the income of the licensed drivers, owners and operators of taxi-cabs, hire cars and limousines, and the value of their businesses.
10 Mr Andrianakis is a Victorian taxicab operator and driver, and he seeks damages for his lost income and the reduction in the value of his business said to be caused by the arrival of UberX in the passenger transport market in Victoria. As noted above, this is a group proceeding and Mr Andrianakis brings it on his own behalf and on behalf of all other Victorian point-to-point passenger transport service drivers, operators and owners, and on behalf of similar drivers, operators and owners in New South Wales, Queensland and Western Australia.[3] I shall refer to these states and Victoria collectively as the Relevant States.
[3]Ruling No 1, [3].
11 The Defendants are alleged to be the Uber entities responsible for introducing UberX to Australia and operating the service.[4]
[4]Ruling No 1, [4].
12 The key allegations made by Mr Andrianakis were also succinctly summarised by his Honour:[5]
Mr Andrianakis alleges that the Uber entities entered an agreement or combination among themselves to establish UberX in each of the four States with the intention of harming the incumbent licensed commercial point‑to‑point passenger service providers. The agreed means of establishing the UberX service was through the engagement of unlicensed drivers using non-accredited vehicles. The provision of the service using unlicensed drivers with non-accredited vehicles was, at the relevant time, an offence in each of the States. Knowing and intending that the conduct of the UberX service by that means would be illegal, each of the Uber entities that facilitated the establishment of the UberX service was complicit with the UberX Partners (that is, the drivers) in the offences which they committed when performing the service. Further, it is alleged that the establishment and conduct of the UberX service in each State by that means caused economic loss to the incumbent, licensed commercial point-to-point passenger services providers, such as Mr Andrianakis in Victoria.
[5]Ruling No 1, [18].
13 This is a very short summary of the claims made in the Andrianakis Proceeding and it is fair to say that they are rather more complex than I have described. However, it is not necessary for me to go into that level of detail and complexity at this stage. While the Defendants’ defence is complex and detailed as well, it is fair to say that the key allegations as summarised in the preceding paragraph are denied by them.
Taxi Apps Proceeding
14 From around June 2011, Taxi Apps has published and made available in Australia a software application known as the “GoCatch” app. From around February 2016, Taxi Apps has also published and made available a software application known as the “GoCatch Driver” app. The GoCatch app, once downloaded onto a device, allowed a person to register as a GoCatch passenger and to use the app to request point‑to‑point passenger transport services. Drivers who used the GoCatch app to provide these services to passengers were taxi cab drivers lawfully permitted to perform those services in the Relevant States, driving vehicles lawfully permitted to be used in the provision of those services. The GoCatch app facilitated payment from the passenger to the driver, with a fee payable by the driver to GoCatch. At various times in the Relevant States between 2016 and 2017, the GoCatch app and services were extended such that drivers were not required to be licensed taxicab drivers driving licensed taxis.
15 The claims made by Taxi Apps in the Taxi App proceeding are conveniently summarised in the Taxi Apps Submission,[6] from which I have summarised the following. Taxi Apps alleges that:
[6]Taxi Apps Submission, [7]-[11].
(a) one or more of the Defendants committed the tort of conspiring to injure Taxi Apps by unlawful means in connection with the Defendants’ operation of the ridesharing platform, UberX;
(b) the Defendants provided UberX in the Relevant States in circumstances where ridesharing services in those states were unlawful. Taxi Apps’ case is that the Defendants aided, abetted, counselled or procured the commission of offences in the Relevant States (‘Ridesharing Offences’);[7]
[7]The specific provisions of State law creating those offences are conveniently summarised in the Catchpoole Affidavit, [22]. The detail of the allegations in the Andrianakis Proceeding are already canvassed in Ruling No 1. The relevant Ridesharing Offences are substantially similar (but not identical) in the Taxi Apps Proceeding. The offences will be discussed in greater detail later in this ruling: see paragraphs 219, 223 and 224 below.
(c) while some of these offences were committed by UberX Partners, the Defendants (or one or more of them) were themselves primary offenders in respect of those offences under the common law or statute by reason of their knowledge and conduct in connection with those offences;[8]
[8]Catchpoole Affidavit, [23].
(d) the Defendants adopted, and publicised, a policy of paying the fines of UberX Partners who were fined for committing Ridesharing Offences.[9] Taxi Apps contend that there is documentary evidence in support of that proposition,[10] which is said to reveal that the Defendants adopted a deliberate strategy of paying UberX Partners’ fines so as to reduce or remove the disincentive to offending created by the prospect of such fines; and
(e) the Defendants engaged in a practice known as “greyballing”, whereby they took steps to impede the efforts of regulators to detect unlawful ridesharing and impose fines on UberX Partners.[11] Taxi Apps contends that there is documentary evidence in support of that proposition,[12] which is said to establish that the Defendants had a stated policy, the Violation of Terms of Service or V-TOS Policy, which involved efforts to detect users of UberX who were likely to be regulators or enforcement officers, and to prevent or frustrate their efforts to identify UberX Partners who were engaging in the Ridesharing Offences.
[9]Taxi Apps Statement of Claim dated 31 March 2020 (‘Taxi Apps SOC’), [85], [87], [89] and [91].
[10]Described in the Catchpoole Affidavit, [77]–[103].
[11]Taxi Apps SOC, [92]-[93].
[12]Catchpoole Affidavit, [117]–[135].
16 The Defendants deny these allegations.
Procedural background regarding the subject matter of this ruling
The Defendants’ discovery
17 Orders were made by the Court on 21 December 2020 for discovery by the parties. The Defendants were ordered to provide discovery to the Plaintiffs by way of some 35 categories, two of which applied only to the Taxi Apps Proceeding.[13] Prior to those orders, the parties had reached agreement as to some of the discovery categories and I settled the disputed categories following a hearing on 17 December 2020. I therefore had some familiarity with both proceedings prior to dealing with the challenges made in respect of the Defendants’ privilege claims.
[13]Catchpoole Affidavit, [7].
18 Between January and August 2021, the Defendants produced some 73,086 documents to Taxi Apps by way of discovery, in six tranches.[14] In the Andrianakis Proceeding, some 69,855 documents were produced to Mr Andrianakis by way of discovery.[15] It was explained to me that discovery in one proceeding was effectively discovery in the other, save that there were some documents discovered in the Taxi Apps Proceeding only by virtue of the two additional discovery categories in that proceeding. Apart from documents in those two additional categories, the discovery made by the Defendants was identical in both proceedings.[16]
[14]Catchpoole Affidavit, [8].
[15]Andrianakis Submission, [4].
[16]Catchpoole Affidavit, [11].
19 In addition, the Defendants provided the Plaintiffs with schedules listing documents which were subject to privilege claims, either in respect of the whole document or part thereof (‘Privilege Schedules’). There were around 12,400 documents in the Privilege Schedules. Some of these schedules listed documents which were subject to privilege claims by third parties, in whole or in part.[17]
[17]Catchpoole Affidavit, [9].
Privilege challenges
20 On 23 September 2021, Mr Andrianakis filed a summons seeking production of unredacted copies of certain documents from the Privilege Schedules which were listed in a schedule attached to this summons. This summons was amended on 25 October 2021 so as to amend the schedule attached to it. On 8 October 2021, Taxi Apps filed a similar summons with attached schedules, seeking production of 3,971 common documents and 73 unique documents.[18] Mr Andrianakis’ schedule does not state how many documents are sought, but I apprehend there are a similar number of documents as to those sought by Taxi Apps, as his schedule is lengthy, running to some 423 pages.
[18]Common documents being ones discovered in both proceedings; unique documents being ones discovered only in the Taxi Apps Proceeding.
Orders made by the Court regarding privilege challenges
21 The Plaintiffs’ summonses were listed before me for directions on 22 October 2021. At that time, it had been agreed between the parties that the privilege challenges would proceed by way of sample documents to be taken from the schedules attached to the summonses. The parties were in disagreement as to the number of sample documents and some other procedural aspects, but after hearing from the parties I made orders in both proceedings.
22 In substance, the orders made regarding documents over which the Defendants claimed privilege were that (‘Sample Documents Orders’):
(a) the Plaintiffs were to liaise and provide a list of up to 100 documents for the sample to the Defendants;
(b) the Defendants could nominate up to 20 additional documents for the sample;
(c) the documents nominated in accordance with this procedure were to be the ‘Sample Documents’;
(d) the Defendants were to file and serve affidavit material and an outline of submissions in respect of the Sample Documents by 17 December 2021;
(e) the Plaintiffs were to file and serve affidavit material and an outline of submissions in respect of the Sample Documents by 14 January 2022; and
(f) the Defendants were to file any affidavits in reply and reply submissions in respect of the Sample Documents by 28 January 2022.
23 In substance, the orders made regarding documents over which third parties claimed privilege (‘Third Party Documents’) were that (‘Third Party Documents Orders’):
(a) the Defendants were to file any affidavits and submissions in respect of the Third Party Documents by 14 January 2022; and
(b) The Plaintiffs were to file any affidavits and submissions in reply in respect of the Third Party Documents by 28 January 2022.
24 The Plaintiffs’ summonses, limited to the Sample Documents and the Third Party Documents, were listed for hearing before me for 7 February 2022.
The parties’ preparation of the privilege challenges, including for this hearing
25 On 5 November 2021, the Plaintiffs jointly nominated 100 sample documents in accordance with the orders made on 22 October 2021.[19] The Defendants did not nominate any additional documents. Accordingly, the Sample Documents comprise those documents nominated by the Plaintiffs on 5 November 2021.
[19]Catchpoole Affidavit, [17].
26 The parties filed further materials, in accordance with the 22 October 2021 orders, although there was some slippage in parts of the timetable. No complaint is made about that.
27 With the delivery of the Defendants’ reply material, disputes in respect of the 100 Sample Documents had been reduced to 77 documents in the Andrianakis Proceeding and 64 documents in the Taxi Apps Proceeding,[20] as a result of the following:
[20]Second Hanson Affidavit, [14].
(a) the Defendants had withdrawn their privilege claims over 14 documents and identified two other documents which were not the subject of privilege claims by the Defendants but may be the subject of third party privilege claims;[21]
[21]First Hanson Affidavit, [8], [12], [273]; Second Hanson Affidavit, [12]-[13].
(b) Mr Andrianakis no longer pressed his objections to the privilege claims over seven documents;[22] and
(c) Taxi Apps no longer pressed its objections to the privilege claims over 20 documents.[23]
[22]Second Hanson Affidavit, [11].
[23]Second Hanson Affidavit, [11]; Taxi Apps Submission, [16]; Andrianakis Submission, [2].
28 By the time of this hearing, the Plaintiffs had reviewed the Defendants’ reply material and further refined their positions. Mr Andrianakis provided an ‘aide memoire’ on the morning of the hearing, which was a table listing the Sample Documents, and in respect of each of them stating the basis of the Defendants’ claim (whether advice or litigation privilege) in their primary submission and in their reply submission, Mr Andrianakis’ position and the bases for challenge, Taxi Apps’ position and the bases for challenge, and the final position (‘Aide Memoire’). Taxi Apps confirmed during the hearing that where Mr Andrianakis’ position had changed after receipt of the Defendants’ reply materials, it adopted the same position as Mr Andrianakis. The number of documents in dispute was not altered by the Aide Memoire, rather, the bases for the privilege claims and the bases of the challenges were changed in some respects.
29 Mr Andrianakis complains that the Defendants did not nominate an additional 20 Sample Documents, which is said to be contrary to the orders made on 22 October 2021.[24] He says that this may reduce the utility of the sampling process as the number of 120 documents had been chosen as an appropriate and proportionate size. Mr Andrianakis contends that the sample size will have reduced by 29%.[25] The Defendants reject this complaint, saying that the Court did not mandate them to nominate an additional 20 documents, and the Plaintiffs did not seek to nominate additional documents themselves to bring the number up to 120. The Defendants also say that the reduction of 29% is not accurate.[26] I accept the Defendants’ submissions in this regard, although nothing much turns on it.
[24]Andrianakis Submission, [8].
[25]Andrianakis Submission, [12].
[26]Defendants’ Reply Submission, [7].
30 The Defendants experienced difficulties in preparing their affidavit material in respect of the Third Party Documents by the time stipulated (14 January 2022) and had not been able to do so prior to the hearing. The Court and the Plaintiffs were kept informed of this. Accordingly, there was no material before me in relation to the Third Party Documents, and that matter is to be dealt with separately.
Issues for determination in this ruling
31 There are several issues which are of general application in these proceedings which fall for consideration. Once those have been considered and ruled upon, it then remains for those rulings to be applied to the Sample Documents.
32 The parties each dealt with general matters in their submissions and then made submissions in respect of each of the disputed Sample Documents.
33 At the commencement of the hearing, I observed that the purpose of this exercise was to determine, as far as the Court was able, the position in respect of privilege claims in these proceedings at a general level by making rulings (if possible) that could be used in reviewing the remainder of the challenged documents, using the Sample Documents as a means of elucidating that. In my view, for this exercise to be of utility to the parties, the determination needs to be expressed in a way that the parties can apply it to the remainder of the challenged documents, so as to avoid or at least minimise the number of documents remaining in dispute. My aim is that by making some general rulings and then applying them to the Sample Documents, the parties will be able to use those to guide them in dealing with the remaining challenged documents. Counsel for the parties all agreed that this approach was desirable.
34 It was common ground between the parties that the Court should inspect the Sample Documents. I accept this: the Court has power to do so,[27] and given the nature of the exercise as described above, it is important that I do so.
[27]At both common law and under the Evidence Act, the Court has the discretion to do so: see Bradford v Devlot 17 Pty Ltd [2020] VSC 246, [60] and the authorities referred to in the footnote to that paragraph.
35 The issues for determination in this ruling which are of general application in the proceedings can be conveniently set out as follows (‘Issues’):
(a) Have the Defendants provided sufficient evidence to establish their privilege claims?
(b) Have the Defendants waived privilege?
(c) Does the exception for misconduct apply here such that the Defendants are not able to rely on their privilege claims?
36 I intend to deal with each of these issues in turn, setting out the relevant evidence, the parties’ submissions, and my analysis and conclusions. The affidavit material and the parties’ submissions were extensive, detailed and lengthy. I have not set all of it out in these reasons, such an approach being both laborious and very time-consuming. The affidavits and written submissions are on the Court files and the detail is contained therein. However, I can assure the parties that all of the affidavits and submissions have been carefully read and considered, and taken into account in forming these reasons.
37 I will then turn to deal with each of the disputed Sample Documents. I have reviewed each of the disputed Sample Documents, along with the parties’ submissions on each as set out in their written outlines and in oral submissions. I have created a table, which is contained in the Annexure to these Reasons. The Annexure is derived from the Aide Memoire and contains my ruling in respect of each of the disputed Sample Documents and brief reasons for each such ruling. Defined terms in the Annexure have the same meaning as in these Reasons unless otherwise stated.
38 Due to the matters referred to in paragraph 30 above, this ruling does not concern the Third Party Documents. It was common ground at the hearing that further preparation (with the exception of the Defendants’ affidavits) and consideration of matters regarding the Third Party Documents would await delivery of this ruling.
Evidence
39 Generally speaking, it is more efficient to set out the evidence when dealing with each of the three identified issues, which is what I have done.
40 The parties made submissions in their written material concerning admissibility of evidence. However, the parties indicated at the hearing that they were each content to proceed on the basis that their evidentiary objections could be dealt with as matters of weight in respect of that evidence. I am also content to deal with the evidence on that basis.
General principles regarding legal professional privilege
41 Before turning to the Issues, it is convenient to set out some general principles regarding legal professional privilege.
Statutory provisions
42 Section 118 of the Evidence Act 2008 (Vic) (‘Evidence Act’) deals with legal advice privilege, providing as follows (‘Advice Limb’):
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
(a)a confidential communication made between the client and a lawyer; or
(b) a confidential communication made between 2 or more lawyers acting for the client; or
(c)the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person—
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
43 Section 119 of the Evidence Act deals with litigation privilege, providing as follows (‘Litigation Limb’):
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b) the contents of a confidential document (whether delivered or not) that was prepared—
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
44 Section 122 of the Evidence Act relevantly provides as follows (‘Waiver Provision’):
…
(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
(3) Without limiting subsection (2), a client or party is taken to have so acted if—
(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.
(4) The reference in subsection (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.
(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because—
(a) the substance of the evidence has been disclosed—
(i)in the course of making a confidential communication or preparing a confidential document; or
(ii) as a result of duress or deception; or
(iii) under compulsion of law; or
(iv)if the client or party is a body established by, or a person holding an office under, an Australian law—to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held; or
(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or
(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.
45 Section 125 of the Evidence Act relevantly provides as follows (‘Misconduct Exception’):
Loss of client legal privilege—misconduct
(1) This Division does not prevent the adducing of evidence of—
(a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or
(b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.
(2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that—
(a) the fraud, offence or act, or the abuse of power, was committed; and
(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power—
the court may find that the communication was so made or the document so prepared.
(3) In this section, power means a power conferred by or under an Australian law.
Applicable Principles
46 The principles in respect of client legal privilege[28] are well established and there is little utility setting out a fulsome discussion of them here, unless that is necessary to deal with the parties’ submissions. Generally speaking, the parties did not appear to differ on the general principles regarding privilege.
[28]The Evidence Act refers to it as ‘client legal privilege’ whereas it is usually referred to in common law cases as ‘legal professional privilege’. Nothing turns on this distinction and the terms are used interchangeably in these reasons.
47 The common law principles inform the content and application of ss 118 and 119.[29] In the context of applying the Evidence Act, in IOOF Holdings Ltd v Maurice Blackburn Pty Ltd,[30] Elliott J stated that the principles applicable to privilege “are not controversial” and summarised them as follows:[31]
[29]Samenic Ltd v APM Group (Aust) Pty Ltd [2011] VSC 194, [19].
[30][2016] VSC 311 (‘IOOF v Maurice Blackburn’).
[31]Ibid, [47], citations omitted.
(1)The party claiming the privilege bears the onus. That onus will only be discharged if the party establishes facts from which the court may determine that the privilege is being properly claimed.
(2)“Purpose” in “dominant purpose” means the purpose which led to the creation of the document or the making of the communication.
(3)The “dominant purpose” is the purpose which was the ruling, prevailing or most influential purpose at the time the document was brought into existence.
(4)There can be only 1 dominant purpose. If there are 2 purposes of equal weight, neither fits the description of a “dominant purpose”.
(5)If a dominant purpose existed, that dominant purpose must be determined objectively, having regard to the evidence, the nature of the document and the parties’ submissions. That said, evidence of the subjective purpose of the person making the communication or creating the document is relevant.
(6)Ordinarily, the relevant purpose is that of the person who brings into existence the document which includes the privileged communication, but this will not always be the case.
(7)As the test is directed towards the purpose of bringing the document into existence, a copy of a non-privileged document may be privileged.
(8)The material relied upon by the person claiming privilege must be focused and specific. Formulaic and bare conclusory assertions are not sufficient.
(9)With respect to advice privilege, in considering whether a communication is for the purposes of legal advice, the purposes must be construed broadly. Although it does not extend to pure commercial advice, legal advice, in this context, includes any advice as to what should prudently and sensibly be done in the particular legal circumstances in which the client finds itself.
(10)Further to subparagraph (9), a document created by a lawyer that records her or his legal work carried out for the benefit of the client, such as a research memorandum, a summary of documents or a chronology, will be protected by privilege whether or not the document is provided to the client. Similarly, notes and other material created by the client that relate to the legal advice sought (whether or not actually communicated to the lawyer), or that relate to communications with the lawyer, may be privileged where such documents meet the relevant “dominant purpose” test.
(11)With respect to litigation privilege, for a proceeding to be “anticipated or pending” for the purposes of s 119, there must be more than a mere possibility of litigation. As a general rule, there must be a real prospect of litigation, but it does not have to be more likely than not.
(12)Many claims for privilege may be determined by the court without the need to inspect the documents. Further, ordinarily, the court will not examine the documents if the party claiming privilege has not established a basis for the claim in an affidavit in support. However, in an appropriate case, the court may examine the documents to make a decision about privilege, particularly where the parties agree to this course.
(13)A law firm or a company may be a “client” if it engages or employs its own employee lawyer, but privilege will only attach to the relevant communication or document if the employee is consulted confidentially in her or his professional capacity, with the requisite degree of independence, in relation to a professional matter.
Issue 1: Have the Defendants provided sufficient evidence to establish their privilege claims?
48 There were three matters raised by the parties which go to Issue 1. These were:
(a) the nature of the evidence relied upon by the Defendants, that evidence primarily being hearsay. As noted above, the parties indicated an intention that this be dealt with as a matter of weight in establishing the Defendants’ claims for privilege, rather than as a formal objection to evidence;
(b) whether the Defendants have established that the dominant purpose of the creation of the documents/communications was legal advice (so as to fall within the Advice Limb) or for use in litigation (so as to fall within the Litigation Limb); and
(c) whether the conduct of the Defendants’ discovery was such as to cast doubt upon the legitimacy of their claims to privilege.
Nature of the evidence relied upon by the Defendants
49 The evidence relied upon by the Defendants in respect of their privilege claims are the First Hanson Affidavit, the Second Hanson Affidavit and the Ambikaipalan Affidavit.
Mr Andrianakis’ submissions
50 Mr Andrianakis submits that the party claiming privilege must, by direct admissible evidence, set out the facts from which the Court can consider whether the assertion concerning the purpose of the communication is properly made, and that it has been said that the best evidence is that of the person whose purpose is in question.[32]
[32]Hancock v Rinehart (Privilege) [2016] NSWSC 12 (‘Hancock’), [27], [32].
51 He says that where a party seeks to establish privilege through the evidence of the party’s lawyer, and not the author of the communication or document, such evidence may be of limited utility. In particular, where the lawyer purports to give evidence about ‘purpose’ in the absence of instructions having been sought from the author of the communication or document, such evidence rises no higher than that lawyer’s own inference from the same objective facts which are available to the Court.[33] In that way, the lawyer’s own evidence about purpose has little, or no, probative value in supporting the privilege claim, and the Court is to instead make its own assessment based upon the objective facts available to it consistently with the approach taken by Macaulay J in Cargill No 8.[34]
[33] Cargill Aust Ltd v Viterra Malt Pty Ltd (No 8) [2018] VSC 193 (‘Cargill No 8’), [52].
[34] Ibid, [52].
52 Mr Andrianakis submits that the evidence relied on by the Defendants is limited in scope, observing that the Ambikaipalan Affidavit does not address the Sample Documents directly. He says that no evidence has been filed by or on behalf of any author of the Sample Documents, nor any other individual from Uber who might give evidence about the factual context in which each document was prepared or communication made.
53 Of the First Hanson Affidavit, Mr Andrianakis submits that the deponent purports to give evidence about the purpose for which each communication was made or document prepared. Importantly, however, in no instance does Mr Hanson set out that he sought or received instructions from any author of any document about the purpose for which that author made the communication or prepared the document. Nor does Mr Hanson set out that he sought and received instructions about facts and context surrounding the documents from any individuals within Uber, which may shed light on the question of purpose. Rather, in each instance, Mr Hanson purports to give evidence about ‘purpose’ based upon his own review of the document and what he describes as ‘context’. The context he refers to is almost exclusively limited to the Sample Documents themselves and other discovered documents which are referred to in the First Hanson Affidavit. There are a small number of Sample Documents where Mr Hanson purports to rely on context without identifying the source, which evidence is inadmissible or at least of very limited probative value.
54 Mr Andrianakis relies on the comments of Daly AsJ in Setka v Dalton,[35] where her Honour stated that:
However, [the deponent’s] lack of direct involvement in the relevant events and communications means that, where there is some doubt about the provenance and purpose of particular communications which cannot be resolved by inspection of the document recording the communication in question, then the absence of direct, specific evidence regarding the purpose (as opposed to the description) of the document concerned means that, in such cases, Boral will not have discharged the burden of establishing that the dominant purpose of the relevant communication was for Boral to seek or receive legal advice. In other words, while the evidence relied upon by Boral is sufficient to advance Boral’s claims for privilege, in some cases, the evidence is generally insufficiently direct or focussed to resolve any doubts which arise upon inspection of the challenged documents.[36]
[35]Setka v Dalton(No 2) (Legal professional privilege) [2021] VSC 604 (‘Setka’).
[36]Ibid, [89].
Taxi Apps’ submissions
55 Taxi Apps refers to Krok v Szaintop Homes Pty Ltd (No 1), where Judd J dealt with the nature of the evidence required to establish a claim of privilege as follows:
The evidence advanced in support of a claim for client legal privilege attaching to a document must at least establish the purpose for which the document was made, identify the maker and the party for whom the document was prepared, and establish the elements of confidentiality. … Verification of the basis for the claim of privilege or confidentiality is not evidence of confidentiality.[37]
[37][2011] VSC 16, [17].
56 The remainder of Taxi Apps’ submissions on this topic are very similar to those of Mr Andrianakis,[38] and I do not need to repeat them.
[38]See Taxi Apps Submission, [21]-[23].
The Defendants’ submissions
57 The Defendants make three points in response to the Plaintiffs’ submissions about the nature of the evidence relied upon.
58 First, the Defendants say that the purpose for which a document is brought into existence is to be determined objectively. They contend that a party may discharge its onus as to dominant purpose by:
evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, or authored the document, or procured its creation. It might also be discharged by reference to the nature of the documents, supported by argument or submissions.[39]
[39]AWB Ltd v Cole (No 5) (2006) 155 FCR 30 (‘AWB’), [44(1)-(2)]; see also Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796 at [32].
59 The Defendants point to numerous cases where privilege has been established in the absence of direct evidence from the author of the relevant communication.[40] They say that this is because the nature of the evidence required to be called to support a claim for privilege will vary in each case.[41]
[40]The Defendants refer to Cargill No 8; Setka; Regent 125 Pty Ltd v Brdar [2019] VSC 177; Malone v La Playa Nominees Pty Ltd [2021] VSC 271.
[41]Setka, [73]ff.
60 The Defendants also say that in the present case the Plaintiffs’ generalised attack fails to take into account the historical nature of the documents (being between five and nine years old) and the significant number of authors and recipients (most of whom have left the Uber entities[42]). They say that there are also case management considerations relevant to the nature of the evidence required to determine a disputed privilege claim:
… it seems to me that each case turns on its facts, and the availability of and practicality of adducing direct, non-hearsay evidence is a relevant factor. Principles of efficient case management also loom large, particularly where there are a large number of documents where claims for legal professional privilege are in dispute.[43]
[42]Ambikaipalan Affidavit, [24]-[30].
[43]Setka, [81].
61 Secondly, the Defendants say that the Ambikaipalan Affidavit provides direct evidence as to how the legal team functioned and that relevant evidence is adduced through their business records tendered on the application (ie the Tender Bundle and the Sample Documents) which properly contextualises the nature of the privileged communications.
62 Thirdly, the Defendants say that the generalised attack on the adequacy of the evidence does not preclude the Court from inspecting the relevant documents.
Analysis
63 It is apparent from a reading of the Ambikaipalan Affidavit that its purpose is to provide evidence as to the structure and function of the Defendants’ in-house legal team; the qualifications, role and other details of each of the lawyers employed by Uber (‘Uber In-House Counsel’) who appear in the Sample Documents; and other employees who were not in-house lawyers but were members of the legal team and appeared in the Sample Documents.[44]
[44]Ambikaipalan Affidavit, [7].
64 Ms Ambikaipalan commenced employment with Uber, in an in-house counsel role, in January 2016 and has had various roles in the legal team since then.[45]
[45]Ambikaipalan Affidavit, [11].
65 Ms Ambikaipalan identifies sixteen employees who were Uber In-House Counsel and three who were not in-house lawyers but were members of the legal team.[46] From my review of paragraphs 32 to 139 of the Ambikaipalan Affidavit, 14 of the 16 Uber In‑House Counsel and two of the three persons in the legal team not employed as lawyers are no longer employed by Uber.
[46]Ambikaipalan Affidavit, [7].
66 In addition, Ms Ambikaipalan deposes that there are 19 employees who were not members of the legal team and were authors of or appeared in the Sample Documents. She lists those employees at Annexure A to the Ambikaipalan Affidavit, and says that five of them are still employed by Uber, and of those five each employee authored one document each within the Sample Documents.[47]
[47]Ambikaipalan Affidavit, [30].
67 Accordingly, I accept the submission that Ms Ambikaipalan does not give direct evidence as to the dominant purpose regarding each of the Sample Documents.
68 However, Ms Ambikaipalan’s evidence clearly supports the Defendants’ submission as to the case management concerns which are relevant in these proceedings. It is clear that very few of the employees appearing in the Sample Documents, whether they are Uber In-House Counsel, non‑lawyer members of the legal team, or other Uber employees, remain employed by Uber. I accept that those former employees were not available to the Defendants for the purpose of this discovery exercise. Further, I also consider it inefficient to have those who remain employed by Uber and who appear in the Sample Documents to all make affidavits in respect of this exercise.
69 On the other hand, I accept the Plaintiffs’ observations about the general and indirect nature of the evidence given in the First Hanson Affidavit. Their criticism is not addressed in the Second Hanson Affidavit, in that Mr Hanson does not say anything about the source of his evidence as to the purpose of the relevant communications/documents.
70 Effectively, Mr Hanson’s evidence about the purpose of the documents/communications is based on his review of the Sample Documents and other relevant documents, his knowledge of the context and the subject matter of the proceedings based on having been involved in them for some time, and his extensive experience as a lawyer. In essence, he is discerning the purpose from conducting that review. While the Court is assisted by his evidence as to the context and surrounding circumstances, and as to the participants in the various documents/communications, at the end of the day his statements about purpose are merely his opinions based on the exercise he has undertaken. It remains for the Court to undertake a similar exercise, informed by the evidence before it, in order to discern the purpose of the Sample Documents.
71 Therefore, the evidence relied on by the Defendants has its limitations and they are such as to mean that it is imperative for me to inspect the Sample Documents. I accept, however, that there is sufficient evidence led to mean that I should do so and that while the power of inspection is not to be used as a substitute for evidence, privilege may be established by the Court drawing inferences based on the documents themselves.[48]
[48]Cargill No 8, [43], [63].
72 I also accept Mr Andrianakis’ submissions based on Setka: if there is no direct evidence as to the purpose of the document and the purpose or dominant purpose cannot be ascertained from the document itself or if the purpose is ambiguous on the face of the document, then the Court cannot be satisfied that the dominant purpose is a privileged one.
73 Accordingly, I do not regard the nature of the evidence relied on by the Defendants as precluding, at the general level, their claims to privilege.
Dominant purpose
74 Mr Andrianakis challenges the privilege claims in respect of 59 of the Sample Documents on the basis that they have not discharged their burden in establishing that the dominant purpose for the document/communication was a privileged one.[49] Taxi Apps also challenges a number of the Defendants’ privilege claims on this basis.
[49]Andrianakis Submission, [15].
75 The parties made some general submissions about the dominant purpose test, the principles in respect of which I have already summarised above.
76 In addition to those, the Defendants submit that where the documents/communications involve external lawyers, it is appropriate to infer the existence of privilege from the very nature of documents falling within this category. In this regard, they refer to AWB, where Young J said that:[50]
where communications take place between a client and his or her independent legal advisers, or between a client’s in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications.
[50]AWB [44](4); see also Baron v Gilmore [2018] NSWSC 439, [13]-[15].
77 The Defendants also say that even if the description of the documents themselves was not sufficient to establish privilege, the First Hanson Affidavit provides ample basis to establish the dominant purpose for which they were created. For example, Mr Hanson says that SD 6 is a draft advice issued by Herbert Smith Freehills regarding taxi regulation in Victoria.[51]
[51]First Hanson Affidavit, [38]-[40].
78 In my view, this proposition is relatively uncontroversial. However, all it does is aid in assessing the dominant purpose of each document. It does not create a presumption which the Plaintiffs must rebut; rather, the onus remains on the Defendants to satisfy the dominant purpose test.
79 The Defendants submit that in considering each of the Plaintiffs’ challenges, the Court ought to start from the position that legal professional privilege is an important substantive right, and “will not be allowed to be undermined by an overly narrow or technical approach to questions involved, such as the identification of the relevant advice in question”.[52]
[52]DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151 (‘DSE’), per Allsop J (as his Honour then was), [31].
80 The Defendants also say that the Plaintiffs frequently rely upon insubstantial evidence (such as single sentences in the unredacted part of a document, or other communications that are not connected to the privileged document) and then seek extrapolate from that evidence the possibility that the document had some other purpose. Even where that possibility is established, it says nothing as to the likelihood that the dominant purpose for the creation of the document falls within or outside a privileged purpose.
81 In my view, this will fall for determination when considering the individual Sample Documents. I do not think a general proposition can be elicited from the Defendants’ submission in this regard.
82 The Defendants submit that the Plaintiffs’ approach to privilege, particularly the Advice Limb is overly narrow. The Plaintiffs frequently dispute that a document is privileged because, they submit, it may not, itself, contain a specific request for advice or the provision of legal advice. The Defendants say that approach is contrary to law: in a solicitor/client relationship, the document need only form part of the continuum of communications aimed at keeping both informed so that advice may be given as needed. The Defendants refer to Taylor LJ’s observations in Balabel v Air-India that,[53] in most solicitor and client relationships, legal advice:
… may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and client. The negotiations for a lease such as occurred in the present case are only one example. Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as “please advise me what I should do.” But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.
[53][1988] 1 Ch 317 (‘Balabel’) (quoted with approval in DSE at [38] (bold emphasis added)). The Defendants also say that this approach to privilege has been adopted on numerous occasions: see, eg, Setka, [86]; AWB Ltd v Cole (2006) 152 FCR 382 at [100]; DSE, [100]; Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 per Anderson J at 332-4; IOOF Holdings Ltd v Maurice Blackburn, [47(9)].
83 At a general level, I consider the Defendants’ submission in this regard to be correct. There does not need to be a specific request for advice or provision of advice in the individual communication. However, this can only be taken so far. There needs to be some evidence, either on the face of the document itself or from some other source (such as affidavit material or another contemporaneous document that is brought to the Court’s attention), which would allow the Court to conclude that the communication was part of this continuum. This may be able to be more readily inferred where the communications are with external lawyers. In my view, particular care needs to be taken when seeking to apply this proposition to in-house lawyers. In this case, I do not consider it appropriate to infer from the participation of Uber In‑House Counsel in communications alone, without more, that those communications were part of the continuum of communications keeping the lawyer and the non-lawyer informed so that advice could be given as needed.
84 Some of the Plaintiffs’ challenges to the dominant purpose being a privileged one concerned the claims made by the Defendants that certain of the Sample Documents were privileged on account of the Litigation Limb. In that regard, the Defendants’ initial privilege claims regarding the Sample Documents were on the basis of the Advice Limb, but by the Defendants’ Reply Submission, there were a number of instances where documents were also said to be privileged due to the Litigation Limb.
85 Most of the Plaintiffs’ challenges to the dominant purpose being a privileged one concerned documents involving Uber In-House Counsel.
86 It is convenient to consider each of these two matters, the Litigation Limb claims and the Uber In-House Counsel involvement, in turn, which I do immediately below.
Whether the dominant purpose for the creation of the documents/communications is a privileged purpose – claims based on the Litigation Limb
87 The Litigation Limb claims emerged in the Defendants’ Reply Submission and not earlier, and were made in respect of particular Sample Documents and not in a general way. In oral submissions, Mr Andrianakis’ Counsel stated that the Defendants had not adduced any evidence to support their Litigation Limb claims. Apart from this, the submissions of the Plaintiffs on this topic were contained in the Aide Memoire and were made in respect of the particular Sample Documents. The Defendants made some oral submissions about their Litigation Limb claims, which I set out below.
88 Although the Plaintiffs’ submissions regarding the Litigation Limb were in respect of specific Sample Documents, there are some matters raised in them which I consider may be of general application. I have therefore sought to draw these out here, before considering the individual documents (which I do later in these reasons).
89 The main issue between the parties is whether the Defendants have satisfied the Court that the requirements of s 119 of the Evidence Act have been met in that the legal services were provided in relation to a proceeding, or an anticipated or pending proceeding, in which the Defendants are or may be, or were or might have been, a party. In other words, whether there was a proceeding (or proceedings) or an anticipated or pending proceeding (or proceedings), where the Defendants (or any one of them) are or may be a party.
Mr Andrianakis’ submissions
90 As already mentioned, Mr Andrianakis says that in respect of the privilege claims on the basis of the Litigation Limb, the Defendants have not adduced any evidence.
Mr Andrianakis submits that the Defendants have not identified the pending or anticipated proceedings relied upon and, in particular, they have not explained how an investigation by a relevant regulatory authority gives rise to actual or anticipated proceedings. Mr Andrianakis also submits that s 119 only applies in relation to legal proceedings in respect of which the client, ie the Defendants, was or might have been a party, and that this is not established on the evidence. Taken together, Mr Andrianakis submits that to the extent any document evidences any regulatory investigation or action taken against or in respect of an UberX Partner, this evidence neither rises to the level of actual or anticipated proceedings nor concerns the Defendants. Mr Andrianakis contends that unless the relevant Sample Documents themselves evidence these matters, the Defendants’ privilege claim based on s 119 are not made out.
Taxi Apps’ submissions
91 Taxi Apps adopted Mr Andrianakis’ submissions in respect of the Litigation Limb.
The Defendants’ submissions
92 The Defendants’ Litigation Limb claims are in addition to their claims based on the Advice Limb.
93 In respect of the meaning of an anticipated or pending proceeding, the Defendants rely on Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority,[54] where the Court of Appeal stated that:
In summary, then, as a general rule at least, there must be a real prospect of litigation, as distinct from a mere possibility, but it does not have to be more likely than not.
[54](2002) 4 VR 332, [19].
94 The Defendants submit that some of the Sample Documents the subject of a Litigation Limb claim concerned litigation or potential litigation against Uber, not UberX Partners.[55] The Defendants acknowledged in oral submissions that there was no specific evidence before me, in the affidavit material, about the prospect of litigation against the Defendants or any of them. Nonetheless, they say that this is established by some of the Sample Documents and by some of the documents in the Tender Bundle going to “the question of enforcement action and the like.”[56] These documents in the Tender Bundle were not identified for me by the Defendants.
Analysis
[55]In this regard, the Defendants refer to SD 23, 28, 30, 32, 34, 36, 39, 40 and 49.
[56]Transcript, 7 May 2022, 91.19-29.
95 The Plaintiffs are correct in their submissions that the Defendants have not adduced evidence of actual or anticipated proceedings which could give rise to s 119 applying. Neither of Mr Hanson’s affidavits address this.
96 I accept the Plaintiffs’ submissions that s 119 applies in respect of legal services obtained by the client who is the party or likely party to the actual or anticipated proceedings. Accordingly, proceedings against UberX Partners but not the Defendants do not fall within the Litigation Limb. I do not accept that matters such as UberX Partners being invited to interviews with the relevant authority fall within the Litigation Limb: firstly, there is insufficient evidence to establish the connection between this and actual or anticipated proceedings; and secondly, even if there was such evidence, it would concern proceedings against or in respect of UberX Partners and not the Defendants.
97 Accordingly, I have taken the approach urged upon me by the Plaintiffs: each of the disputed Sample Documents where the Defendants rely on the Litigation Limb has been reviewed so as to ascertain whether there is evidence of actual or anticipated legal proceedings to which the Defendants (or any one or more of them) are, or are likely to be, a party. If that is not revealed by the Sample Documents themselves, then I have rejected the Defendants’ claim to privilege based on the Litigation Limb.
Whether the dominant purpose for the creation of the documents/communications is a privileged purpose – claims involving Uber In-House Counsel
Mr Andrianakis’ submissions
98 Mr Andrianakis submits that while the concept of legal advice in the context of advice privilege is fairly broad, it is not without its limits. It extends beyond formal advice as to the law to include “professional advice as to what a party should prudently or sensibly do in a relevant legal context” but does not extend to advice that is purely factual, administrative or commercial.[57]
[57]Balabel, [323], [330]; DSE, [45]; AWB [44(7)]; BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 299, [62]; Archer Capital 4A Pty Ltd v Sage Group plc (No 2) (2013) 306 ALR 384 (‘Archer Capital’), [72].
99 He contends that in the context of in-house counsel, the authorities recognise that the individual often has mixed commercial and legal involvement.[58] As Spigelman CJ explained in Sydney Airports Corp Ltd v Singapore Airlines Ltd:[59]
An in-house solicitor is, by reason of his or her position, more likely to act for purposes unrelated to legal proceedings than an external solicitor who, in the normal course, has no relevant function other than that involving legal proceedings and/or legal advice. An in-house solicitor may very well have other functions. Accordingly, in determining whether or not a document was brought into existence for a purpose which was both privileged and dominant, the status of the legal practitioner is not irrelevant.
[58] See Archer Capital, [59]-[73].
[59][2005] NSWCA 47 (‘Singapore Airlines’), [24]. See also Seven Network Ltd v News Ltd [2005] FCA 142, [4]-[5].
100 While the courts have held that privilege ought not be denied simply on the basis of some commercial involvement,[60] nonetheless, in order for the Court to be satisfied that a document is privileged it must be satisfied that the lawyer was acting in a legal context or role when preparing the document or making the communication in question.[61]
[60] DSE, [22].
[61] Archer Capital, [72].
101 Mr Andrianakis refers to the Defendants’ Submission at paragraph 17, where the Defendants submit, citing the decision of Wigney J in Australian Competition and Consumer Commission (ACCC) v NSW Ports Operations Hold Co Pty Ltd (‘NSW Ports’),[62] that:
The Court should take “an appropriately broad and practical approach to the scope or meaning of “legal advice” in this context, particularly insofar as in-house lawyers are concerned” and where the “commercial or administrative aspects of the advice are essentially part of the overall legal advice and cannot be separated from it”, the privilege claim should be upheld.
[62][2020] FCA 1232, [194]-[195].
102 Mr Andrianakis says that it is helpful to read the totality his Honour’s reasoning in that regard to properly understand the point his Honour was making. Those paragraphs state:
[194]Having inspected the part of the email over which privilege is claimed, I am satisfied that, taking an appropriately broad and practical approach to the scope or meaning of “legal advice” in this context, particularly insofar as in-house lawyers are concerned (see DSE at [21] and [45]; AWB at [100]; Archer Capital at [50]–[51]), the email records or reveals a communication or communications made for the dominant purpose of the Port of Newcastle parties receiving legal advice from an in-house lawyer acting in his capacity as a solicitor. There are elements of the requested advice that might perhaps be said to involve commercial or administrative matters, however the advice could also be said to involve what the Port of Newcastle parties should or should not do in a particular legal context. Elements of the advice also involve the Port of Newcastle parties’ legal obligations. The commercial or administrative aspects of the advice are essentially part of the overall legal advice and cannot be separated from it.
[195]The Port of Newcastle parties’ advice privilege claim in respect of part of document 62 is accordingly upheld.
103 Mr Andrianakis says that it is apparent from the full extract of paragraph 194 that his Honour considered that the email in question was sent for the purpose of receiving legal advice, however there were “elements” of the redacted text that “might perhaps” be said to involve commercial or administrative matters. His Honour considered that those “commercial or administrative aspects” were “essentially part of the overall legal advice and [could not] be separated from it”.
104 Mr Andrianakis submits that NSW Ports does not detract from the orthodox position that the dominant purpose of the communication overall must still concern the provision of legal advice, and that Wigney J merely recognised that where there are some aspects of a communication that might be (perhaps) administrative or commercial and which are “essentially part of the legal advice” and not separable, the privilege claim will be upheld in respect of the totality of the communication.
[286]To interpolate into the language used by Wigney J in Watson, [116].
[287]Carbotech-Australia, [26].
280 Therefore, in general terms I accept the Broad s 125 Submission advanced by Taxi Apps, which is effectively the same submission made by Mr Andrianakis as set out in paragraph 226 above. However and to be clear, I do not think that legal advice regarding all aspects of the operation of UberX in the Relevant States falls within the Misconduct Exception. Rather, it is legal advice after the Relevant Dates (defined in paragraph 287 below) regarding aspects of the operation of UberX such as launching and continuing to provide UberX using unlicensed drivers, avoiding enforcement activity or detection, and dealing with fines and prosecutions and UberX Partners about those, including supporting UberX Partners, which falls within the Misconduct Exception.
281 This requires further elaboration.
Operating UberX in the Relevant States was unlawful and the Defendants knew this
282 I am satisfied there are reasonable grounds for finding that prior to launch in the Relevant States, the Defendants knew that operating UberX would involve the commission of Ridesharing Offences.
283 For example, on 22 October 2013, Mr Rohrsheim sent an email to Mr Condo which stated:[288]
I already know that monetary fines are in place (up to $1700 max), and John included that information in his briefing pack. The really meaty question is what non-monetary options they might have. Specifically: can they impound vehicles? can then cancel personal driver licences? That’s the stuff Travis wants to know. I haven’t seen those powers written, but I may not know where to look. It might be harder to find those answers, but those are the penalties that matter.
[288]Tender Bundle 32. For other examples, see paragraphs 240 and 241 above and the references in the footnotes thereto.
284 This is the earliest document to which I was taken that the Plaintiffs submit clearly reveals that the Defendants knew UberX would be unlawful in Victoria. While a number of emails around or after that time refer to “enforcement risks” or “potential liability”, it is clear from their context that this is about the cost of enforcement or the consequences of committing the offences. For example:
(a) in an email dated 17 October 2013 from Mr Condo, he directs that the recipients should “Complete a survey of the enforcement mechanisms, the appetite for enforcement and ability to enforce the regulations against ride sharing in Victoria, New South Wales and Western Australia”;[289]
[289]Tender Bundle 34.
(b) in an email dated 10 January 2014, Simon Rossi stated to Albert Penn:
based on David’s and my review of the Transport Act and enforcement schedule the biggest risk is that we get classified as a Hire Car by the regulator and are then fined $1,700 for operating a commercial passenger vehicle without a licence (per vehicle). The Regulator typically does 1,600 taxi inspection [sic] per month but has the capacity to do 3,000 so the risk is moderate”.[290]
[290]Tender Bundle 46.
285 There is some evidence before the Court to suggest that, at least in respect of Victoria, the Defendants knew by around October 2013 that UberX would be unlawful in that state. Some of the documents relied upon by Taxi Apps to support the submission that the Defendants knew, prior to launch, that UberX was unlawful in the Relevant States do not go so far as contended. I do not accept Taxi Apps’ characterisation of emails dated 22 September 2013[291] and 23 September 2013.[292] I have reviewed the documents in the Tender Bundle relied on at paragraphs 22 and 32 in Schedule B to the Andrianakis Submission for the proposition that by 13 November 2013 the Defendants knew that UberX was unlawful in Victoria. Those documents suggest some knowledge of illegality, but do not satisfy me to the required standard that the Defendants intended at that time to launch UberX regardless. I do not think that knowledge of illegality alone is sufficient to establish that the advice was in furtherance of the Ridesharing Offences. Rather, it is the combination of knowledge of illegality and a clear intention to launch UberX regardless which constitutes the circumstances for the advice to be in furtherance of the Ridesharing Offences.
[291]Tender Bundle 21.
[292]Tender Bundle 22.
286 That said, I do not accept the Defendants’ submission that I should reject the Plaintiffs’ contention that the Defendants had a concluded view prior to the launch of UberX in the Relevant States that it was unlawful. The Defendants submit that just because employees are discussing enforcement does not mean that they knew UberX was unlawful. The documents in the Tender Bundle to which I was taken to support the Defendants’ submission do not actually do so. For example:
(a) the Defendants emphasised the statement “we still have questions about enforcement” in an email dated 27 December 2013,[293] however it is clear upon a proper reading of the email that the comment is about enforcement of the regulations rather than questions about what regulation exists;
[293]Tender Bundle 43.
(b) it is clear that “enforcement risks” in an email dated 10 January 2014[294] is directed to the costs of enforcement, rather than the risk of something being unlawful;
[294]Tender Bundle 46.
(c) the Defendants emphasised the phrase “potential penalties” in an email dated 12 January 2014,[295] but it is clear from the content and context of this email that this is not directed at conduct being potentially illegal, just the potential as to whether or not fines were likely to be issued. Similar comments apply in respect of “potentially” liable in an email dated 13 January 2014;[296] and
(d) this view is not displaced by the phrase “what does the law say?” in an email dated 16 February 2014.[297]
[295]Tender Bundle 47.
[296]Tender Bundle 48.
[297]Tender Bundle 51.
287 [Redacted]. That coincides with the period of time when the Defendants were close to launching UberX in a Relevant State, and some of the documents to which I was taken evidence an intention to launch regardless of the unlawfulness of doing so. [Redacted].[298] [Redacted].[299] [Redacted] so I have decided to use 14 April 2014 as the date for Western Australia as well. Therefore, the Relevant Date in respect of Victoria is 23 January 2014, and the Relevant Date in respect of NSW, Queensland and Western Australia is 14 April 2014.
[298][Redacted].
[299][Redacted].
288 Even if at trial it is found otherwise, there are reasonable grounds for making this finding as part of this application.
289 Similarly, I am also satisfied that reasonable grounds exist for finding that the Defendants knew that most UberX Partners were or would be unlicensed, for the reasons submitted in paragraph 230 above.
290 This is supported by the Defendants’ stated aim of flipping a city and building scale. If UberX was lawful, or not known to be unlawful, then there would have been no need to embark on a strategy to change the regulations or the regulatory framework. Indeed, a “regulatory fight” was seen as inevitable when launching in Melbourne and Sydney.[300] Building scale as quickly as possible was only possible by using unlicensed drivers, which the evidence establishes was well understood by the Defendants. I also accept that the attempts made by the Defendants to avoid enforcement were an aspect of building scale, garnering public support, and growing the business (including by attracting and retaining UberX Partners) until they had managed to flip a city.
[300]See paragraph 244 above.
291 Therefore, I am satisfied that reasonable grounds exist for concluding that legal advice sought or obtained after the Relevant Dates, being 23 January 2014 for Victoria and 14 April 2014 for the other Relevant States, regarding such matters (aspects of the operation of UberX such as launching and continuing to provide UberX using unlicensed drivers, avoiding enforcement activity or detection, and dealing with fines and prosecutions and UberX Partners about those, including supporting UberX Partners) was in furtherance of the commission of Ridesharing Offences. Having decided to launch in the Relevant States before it was lawful to do so, legal advice regarding these matters was ‘helping forward’ the commission of the Ridesharing Offences.
Dealing with fines and prosecutions and communicating with UberX Partners
292 In my view, reasonable grounds exist for the finding that the Defendants’ activities in connection with fines and prosecutions and their communications with UberX Partners about the same, including seeking legal advice or services in connection with the same, was in furtherance of the commission of Ridesharing Offences.
293 I do not accept the Defendants’ submissions that communications or documents which post-date particular offences cannot be in furtherance of the commission of offences. While they may not strictly help forward an offence already committed, it is clear from the evidence adduced on this application that the Defendants’ purpose in dealing with fines and prosecutions was to re-assure UberX Partners and decrease the likelihood of individual drivers ceasing to provide UberX for fear of being left with fines or being prosecuted. In other words, this conduct helped forward the commission of similar offences after incurring fines. As Elliott J said in Talacko, there is no absolute rule that conduct occurring after an offence cannot be in furtherance of the commission of the offence, as subsequent conduct may be in furtherance depending on its nature and purpose. Here, the Defendants’ purpose was self‑evidently to keep UberX Partners providing UberX by setting up a system for dealing with and paying their fines. It is not to the point that legal advice on a specific past offence is usually not considered to be within the Misconduct Exception, since the circumstances here were such that the advice was sought in order to give continuing efficacy to the conduct. The system set up by the Defendants was also designed to avoid visibility with the relevant authorities when physically paying the fines: this was to be done by other law firms and preferably not from an Uber account.[301]
[301]Tender Bundle 154.
294 While it is the case that the offence does not have to actually be committed for the legal advice to be in furtherance of its commission,[302] in the circumstances of this case it is not necessary to engage with this principle. That is because, irrespective of whether individual unlicensed UberX Partners were fined or charged, when they provided UberX services prior to legalisation in the Relevant States, they committed Ridesharing Offences.
Avoiding enforcement or detection
[302]Talacko, [15(11)].
295 In the circumstances of this case, reasonable grounds exist to find that legal advice or services for the purposes of avoiding or delaying enforcement action being taken or offences being detected fall within the Misconduct Exception.
296 Advice regarding avoiding enforcement action is not the same as advice regarding avoiding offending. The question being asked is not “is this conduct legal” but “how can I avoid being caught”. The offence has been or will be committed: the advice is how to avoid the consequences, being the enforcement of the relevant regulations.
297 Accordingly, advice regarding matters such as greyballing and geo-blocking is in furtherance of the commission of Ridesharing Offences.
298 Similarly, advice regarding carpooling may be in furtherance of the commission of Ridesharing Offences, if the advice is sought not because the Defendants intended to provide a carpooling service but to use it to disguise the provision of UberX from regulators. In that sense, carpooling was contemplated as a means of concealing the commission of Ridesharing Offences, and it is clear that advice with a view to concealing offences may fall within the Misconduct Exception.[303]
Acceptance of Taxi Apps’ alternative submission
[303]Ibid, [15(8)].
299 As indicated above, in general terms I accept the Broad s 125 Submission and the similar submission made by Mr Andrianakis. However, I also accept the alternate submission that the evidence in this case provides reasonable grounds for finding that certain documents or communications were prepared or made in furtherance of the commission of offences on a narrower basis, having regard to their nature and substance, for the reasons set out above.
Summary of outcome in respect of Issue 3
300 To summarise the outcome in respect of Issue 3, there are reasonable grounds for finding that:
(a) the Ridesharing Offences were committed, as:
(xii) in the circumstances of this case, the Plaintiffs are not obliged to identify and specify the individual commission of each Ridesharing Offence relied upon by particularising matters such as the date and time of the offence, the name of the UberX Partner committing the offence, and the details of the actual trip in terms of pick up and destination;
(xiii) by virtue of the manner in which UberX was launched and operated in the Relevant States, the commission of offences, being the Ridesharing Offences, was not a theoretical possibility but a certainty; and
(xiv) in any event, there is ample evidence before the Court that Ridesharing Offences were in fact committed, systemically and on a large scale; and
(b) a communication was made or a document was prepared in furtherance of the commission of the Ridesharing Offences, as:
(i)the Defendants’ purpose in seeking legal advice was to advance the operation of UberX in circumstances where the commission of Ridesharing Offences was an integral aspect of the UberX business model in the Relevant States;
(ii)the Defendants intended that the commission of Ridesharing Offences would continue and the advice was to be used to assist in that purpose; and
(iii)legal advice received after the Relevant Dates regarding aspects of the operation of UberX such as launching and continuing to provide UberX using unlicensed drivers, avoiding enforcement activity or detection, and dealing with fines and prosecutions and UberX Partners about those (including supporting UberX Partners) falls within the Misconduct Exception.
Review of sample documents
301 As mentioned in paragraph 37 above, I have reviewed each of the disputed Sample Documents along with the submissions made regarding them. My ruling and brief reasons for ruling in respect of each disputed Sample Document is set out in the Annexure, and the Annexure forms part of these Reasons.
Conclusion
302 The parties are requested to confer regarding a form of orders to give effect to these Reasons, including costs and any directions for the further conduct of the Plaintiffs’ privilege challenges (including in respect of the Third Party Documents).
303 The proceedings will both be listed before me on 6 May 2022 for the making of orders and directions regarding the matters referred to in the preceding paragraph.
ANNEXURE
RULINGS REGARDING DISPUTED SAMPLE DOCUMENTS
| Sample Document | Uber’s privilege claim | Andrianakis’ position – challenge and bases for challenge | Taxi Apps’ position – challenge and bases for challenge | Final position as between the parties | Brief reasons for ruling | Ruling |
| 1 | Advice privilege (s 118) | Challenge: purpose; s 122 (only in respect of Mr Mittenthal) | Challenge: purpose; s 122; s 125 | In dispute: purpose; s 122; s 125 | s 118 purpose established – nothing to suggest Ms Yoo not performing her legal function. s 122 – Uber’s position that Court should infer Mr Mittenthal subject to confidentiality obligation because he was entrusted with plainly confidential communications not accepted. Mr Hanson’s evidence that Mr Mittenthal “worked with Mr Loeser” insufficient on its own. However, Mr Loeser’s engagement agreement required him to take all reasonable steps to ensure that employees, agents or contractors assisting him were bound by the same confidentiality obligations as he was (First Hanson Affidavit, [24]). By sharing Document 1 with Mr Mittenthal, Uber was entitled to assume confidentiality was maintained. Therefore, no waiver. s 125 – Uber’s submission (Reply Submission, [5]) accepted. Not sufficiently connected in a substantive way to the Ridesharing Offences | Privilege claim upheld to redacted portion |
| 2 | Advice privilege (s 118) | Challenge: purpose; s 122 | Challenge: purpose; s 122; s 125 | In dispute: purpose; s 122; s 125 | As for Document 1 | Privilege claim upheld |
| 3 | Advice privilege (s 118) | Challenge: purpose; s 122 | Challenge: purpose; s 122; s 125 | In dispute: purpose; s 122; s 125 | As for Document 1 | Privilege claim upheld to redacted portion |
| 4 | Advice privilege (s 118) | Challenge: purpose | Challenge: purpose | In dispute: purpose | s 118 purpose not established. No evidence to establish that this version of the document is privileged. Being labelled “privileged & confidential” not sufficient. Being similar to an earlier version prepared by external counsel and edited by Uber In-House Counsel (Ms Gaussy) not sufficient. Submissions that Ms Gaussy not performing legal role rejected | Privilege claim rejected |
| 5 | Advice privilege (s 118) | Challenge: purpose | Challenge: purpose | In dispute: purpose | s 118 purpose established. Content of redacted portion makes it clear that Ms Gaussy was providing legal advice in a commercial and strategic context. Privileged purpose of redacted portion established as dominant purpose | Privilege claim upheld to redacted portion |
| 8 | Advice privilege (s 118) | Challenge: purpose | Challenge: purpose; s 125 | In dispute: purpose; s 125 | s 118 purpose established from the content of the redacted portion. s 125 – Uber’s Reply Submission [29] accepted. Document not in furtherance of commission of Ridesharing Offences | Privilege claim upheld to redacted portion |
| 9 | Advice privilege (s 118) | Challenge: purpose; s 125 | Challenge: purpose; s 125 | In dispute: purpose; s 125 | s 118 purpose established for redacted portions, except for email sent on 10 Oct 2013 by Ms Yoo to Mr Rohrsheim (second redaction on page 2 of document), as Ms Yoo is not providing legal advice in this email. s 125 – Document not in furtherance of Ridesharing Offences, as redactions are to emails prior to the Relevant Date which is when I have found Uber knew UberX would be unlawful, and nothing in the content of the redaction portions is sufficiently connected to launching UberX with that knowledge and therefore with the purpose of furthering the commission of offences. See paras 280, 287 and 291 of Reasons | Privilege claim partly upheld. Revised version of document to be produced, by removing the redaction of the 10 Oct 2013 email from Ms Yoo to Mr Rohrsheim |
| 10 | Advice privilege (s 118) | Challenge: purpose; s 125 | Challenge: purpose | In dispute: purpose; s 125 | s 118 purpose established for redacted portions. Clear from review of those portions that legal advice was being sought. s 125 – Document not in furtherance of Ridesharing Offences, as redactions are to emails (dated 19 Dec and 5 Jan) prior to the Relevant Date which is when I have found Uber knew UberX would be unlawful, and nothing in the content of the redaction portions is sufficiently connected to launching UberX with that knowledge and therefore with the purpose of furthering the commission of offences. See paras 280, 287 and 291 of Reasons | Privilege claim upheld to redacted portions |
| 11 | Advice privilege (s 118) | Challenge: purpose; s 125 | Challenge: purpose; s 125 | In dispute: purpose; s 125 | s 118 purpose established. Mr The email from Mr Rossi to Mr de Kievet is privileged. The email from Mr Rossi to Mr Condo merely forwards his earlier email to Mr de Kievet. It is privileged as disclosing it would reveal a privileged communication and there is no loss of privilege in it being forwarded to Mr Condo. s 125 – Document not in furtherance of Ridesharing Offences, as the emails are prior to the Relevant Date. See paras 280, 287 and 291 of Reasons | Privilege claim upheld |
| 12 | Advice privilege (s 118) | Challenge: s 125 | Challenge: s 125 | In dispute: s 125 | s 125 – Document not in furtherance of Ridesharing Offences [Redacted] | Privilege claim upheld |
| 13 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: s 125 | In dispute: purpose, s 125 | s 118 purpose established in redacted portion. s 125 – Document is in furtherance of Ridesharing Offences, see paras 280, 287 and 291 of Reasons | Privilege claim to redacted portion rejected |
| 14 | Advice privilege (s 118) Uber has changed the basis upon which attachment UBR.003.001.0278 is privileged. The Uber Entities now maintain that this document should only be disclosed if Document 15 is required to be disclosed. | Challenge: purpose, s 125 | Challenge: purpose, s 125 | In dispute: purpose, s 125 | s 118 purpose established. s 125 – Document is in furtherance of Ridesharing Offences, see paras 280, 287 and 291 of Reasons. As Document 15 is required to be disclosed, Uber’s concession applies | Privilege clam rejected |
| 15 | Advice privilege (s 118) | Challenge: s 125 | Challenge: s 125 | In dispute: s 125 | s 125 – Document is in furtherance of Ridesharing Offences, see paras 280, 287 and 291 of Reasons. Also see para 298 of the Reasons | Privilege claim rejected |
| 16 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: purpose, s 125 | In dispute: purpose, s 125 | s 118 purpose established to part of the email chain, being all parts of the chain except for the email from Mr Condo dated 8 April 2014 at 12:49:23pm to Mr Rohrsheim, copied to Mr de Kievit, Mr Rossi and Mr Brown and the email from Mr Rohrshiem dated 8 April 214 at 7:46pm. Those two emails do not contain privileged communications and would therefore not reveal privileged communications. I do not accept the characterisation of these two emails that is given to them in the third sentence of paragraph [72] of the First Hanson Affidavit. s 125 – Document not in furtherance of Ridesharing Offences, as it is prior to the Relevant Date, for the reasons set out in para 286 of the Reasons, I have found to be the clearly identifiable and unequivocal date by which Uber knew that UberX in NSW and Queensland was unlawful. See also paras 280 and 291 of the Reasons | Privilege claim partly rejected: document to be produced although Uber may redact the emails in the chain apart from the two identified in the previous column |
| 17 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: purpose, s 125 | In dispute: purpose, s 125 | s 118 purpose established. s 125 – Part of the Document is in furtherance of Ridesharing Offences, see paras 280, 287 and 291 of Reasons, and part is not. The emails which are in furtherance of the Ridesharing Offences are those dated 16 April 2014 at 12:04:12am from Mr de Kievet to Mr Brown, copied to Mr Condo, Mr Rohrsheim and Mr Abbott; 15 April 2014 at 2:17am from Mr Brown; and 14 April 2014 at 9:30pm from Mr Condo. The emails which are not in furtherance of the Ridesharing Offences are the earlier emails in the chain, being those seeking the advice from Herbert Smith Freehills (HSF), providing the advice from HSF dated 14 April 2104 at 11:53:22am and the email from Mr de Kievet dated 14 April 2014 at 8:22pm forwarding the HSF email. | Privilege claim partly rejected: document to be produced although Uber may redact the emails listed in the previous column which I have said are not in furtherance of the Ridesharing Offences |
| 19 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: s 125 | In dispute: purpose, s 125 | s 118 purpose of the redacted portion is established. Having reviewed the redacted portion I accept paragraph [86] of the First Hanson Affidavit. The Plaintiffs’ speculation as to the likely content of the redacted portion is just that, speculation, and it is not borne out upon inspection. s 125 – the redacted portion is not in furtherance of the Ridesharing Offences. That is consistent with the view taken of Document 12, which is summarised in the redacted portion | Privilege claim to the redacted portion upheld |
| 20 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: purpose, s 125 | In dispute: purpose, s 125 | s 118 purpose not established. Uber’s submissions, in respect of the purpose of this document, at paragraphs 101 and 104 of the Reply Submission are expressly rejected. Ms Yoo is not providing legal advice in her response to Mr Rohrsheim. s 125 – the document is in furtherance of the Ridesharing Offences, as I have found that advice relating to payment of fines or reassurance of UberX Partners after the Relevant Dates fall within the Misconduct Exception | Privilege claim rejected |
| 21 | Advice privilege (s 118) | Challenge: s 125 | Challenge: s 125 | In dispute: s 125 | s 125 – document is in furtherance of the Ridesharing Offences. See paras 280, 287 and 291 of Reasons | Privilege claim rejected. The ‘short note’ referred to in the email is not one of the Sample Documents as best as I can ascertain, but should be produced for the same reasons |
| 22 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: purpose | In dispute: purpose, s 125 | s 118 purpose in respect of the emails the subject of the privilege claim is established. s 125 – document is in furtherance of the Ridesharing Offences, as its purpose is to keep the unlawful UberX service operating. The Andrianakis Submission at [85] is accepted | Privilege claim rejected |
| 23 | Advice privilege (s 118) | Challenge: s 125 | Not challenged | In dispute: s 125 | s 125 – document is in furtherance of the Ridesharing Offences. The Andrianakis Submission at [87]-[89] is accepted. The relevant offences are not just those committed by individual UberX Partners but those which Uber may have committed under the relevant legislation | Privilege claim rejected |
| 24 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: s 125 | In dispute: purpose, s 125 | s 118 purpose in respect of redacted portion is established. s 125 – redacted portion of document is in furtherance of the Ridesharing Offences. See paras 280, 287 and 291 of Reasons. I do not accept that this issue in respect of this document ought have the same outcome as Document 19 | Privilege claim rejected |
| 25 | Advice privilege (s 118) | Challenge: purpose | Challenge: purpose | In dispute: purpose | s 118 purpose is established. | Privilege claim upheld |
| 26 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: s 122, s 125 | In dispute: purpose, s 122, s 125 | s 118 purpose not established. No evidence to confirm whether the redacted portion reflects legal advice and nothing to suggest that legal advice is sought. s 122 – no evidence to establish waiver. Challenge to privilege on this basis rejected. s 125 - Not apparent that the redacted portion summarises the 23 January 2014 advice from Brand Partners. Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons. I do not accept that this issue in respect of this document ought have the same outcome as Document 19 | Privilege claim rejected |
| 27 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: purpose, s 125 | In dispute: purpose, s 125 | s 118 purpose is established. s 125 - Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons | Privilege claim rejected |
| 28 | Advice privilege (s 118) Litigation privilege (s 119) | Challenge: purpose, s 125 | Challenge: purpose, s 125 | In dispute: purpose, s 125 | s 118 purpose not established – setting up mechanisms for payment of fines issued to UberX Partners is not for purposes of legal advice. s 119 purpose not established – review of document makes it clear it pertains to fines issued to UberX Partners. Even if pending or anticipated proceedings have been identified, these are not proceedings in which Uber itself is or might be a party and so s 119 does not apply, as it applies only where the client is or might be a party. Uber Reply Submission at [157] expressly rejected: fines issued to drivers in Melbourne are not sufficiently connected to actual or anticipated proceedings against Uber in NSW by the RMS. s 125 - Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons | Privilege claim rejected |
| 29 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: purpose, s 125 | In dispute: purpose, s 125 | s 118 purpose is not established. Ms Yoo is not providing legal advice in her email and there is nothing in the content of the emails between Mr Graves and Mr Brown (the latest two emails in the chain) to indicate the content of the discussion Mr Graves intends to have with Ms Yoo. s 125 - Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons | Privilege claim rejected |
| 30 | Advice privilege (s 118) Litigation privilege (s 119) | Challenge: purpose, s 125 | Challenge: purpose, s 125 | In dispute: purpose, s 125 | s 118 purpose not established – looking for lawyers to assist with payment of fines and arrangements in respect of same is not for purpose of legal advice. s 119 purpose not established – review of document makes it clear it pertains to fines issued to UberX Partners. My comments in respect of Document 28 are repeated. s 125 – the document is in furtherance of the Ridesharing Offences, as I have found that advice relating to payment of fines (including setting up a system for payment of fines or hiring lawyers to do so) or reassurance of UberX Partners after the Relevant Dates fall within the Misconduct Exception | Privilege claim rejected |
| 31 | Advice privilege (s 118) | Challenge: s 125 | Challenge: s 125 | In dispute: purpose, s 125 | s 125 - Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons. RMS requests to UberX Partners to attend interviews sufficiently proximate to commission of offences | Privilege claim rejected |
| 32 | Advice privilege (s 118) Litigation privilege (s 119) | Challenge: purpose, s 125 | Challenge: s 125 | In dispute: purpose, s 125 | s 118 purpose is established. s 119 purpose is not established – proposed clients are the UberX Partners, not Uber. My comments re Document 28, insofar as they are relevant to this document, are repeated. s 125 - Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons. RMS requests to UberX Partners to attend interviews sufficiently proximate to commission of offences. Comments regarding Documents 30 and 31 and s 125 repeated. Taxi Apps’ Submission re this document expressly accepted | Privilege claim rejected |
| 33 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: s 125 | In dispute: purpose, s 125 | s 118 purpose is established. s 125 - Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons. | Privilege claim rejected |
| 34 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: s 125 | In dispute: purpose, s 125 | s 118 purpose is established. s 125 - Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons. In respect of the two emails dated 23 May 2014, my comments re Document 30 are repeated. In respect of the emails dated 19 May 2014, these go to avoiding enforcement activity or detection | Privilege claim rejected |
| 36 | Advice privilege (s 118) Litigation privilege (s 119) | Challenge: purpose, s 125 | Challenge: s 125 | In dispute: purpose, s 125 | s 118 purpose is established. s 119 purpose is not established – proposed clients are the UberX Partners, not Uber. Even if that were not the case, to the extent that there is actual or potential litigation, that is against the drivers, not Uber. My comments re Document 28, insofar as they are relevant to this document, are repeated. s 125 - Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons | Privilege claim rejected |
| 37 | Advice privilege (s 118) | Challenge: s 125 | Challenge: s 125 | In dispute: s 125 | s 125 - Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons. In particular, it concerns support for drivers invited to interviews with the TSC as part of an enforcement / prosecution process | Privilege claim rejected |
| 38 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: purpose, s 125 | In dispute: purpose, s 125 | s 118 purpose is established. I accept that there is nothing on the face of this document to suggest Mr de Kievit not acting in a legal role. | Privilege claim upheld |
| 39 | Advice privilege (s 118) Litigation privilege (s 119) | Challenge: purpose, s 125 | Challenge: purpose, s 125 | In dispute: purpose, s 125 | s 118 purpose is established. s 119 purpose is not established – proposed clients are the UberX Partners, not Uber. Even if that were not the case, to the extent that there is actual or potential litigation, that is against the drivers, not Uber. My comments re Document 28, insofar as they are relevant to this document, are repeated. s 125 - Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons, in particular, assistance / reassurance of drivers re prosecutions is within the Misconduct Exception | Privilege claim rejected |
| 40 | Advice privilege (s 118) Litigation privilege (s 119) | Challenge: purpose, s 125 | Challenge: purpose, s 125 | In dispute: purpose, s 125 | s 118 purpose is established. s 119 purpose not established. No evidence of actual or anticipated proceedings involving Uber, as opposed to drivers. s 125 - Document is in furtherance of Ridesharing Offences – see paras280, 287 and 291 of Reasons. My comments regarding Document 39 are repeated | Privilege claim rejected |
| 41 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: purpose, s 125 | In dispute: purpose, s 125 | s 118 purpose is established. s 125 - Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons | Privilege claim rejected |
| 42 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: purpose, s 122, s 125 | In dispute: purpose, s 122, s 125 | s 118 purpose not established. Clear from content that dominant purpose was to provide an update to the Uber employee recipients, not to seek legal advice. s 122 – if privilege had been established, then I am satisfied that waiver by virtue of inadvertently sending to Kate Bensimon has not occurred. s 125 - Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons | Privilege claim rejected |
| 43 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: s 125 | In dispute: purpose, s 125 | s 118 purpose is established. s 125 - Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons. RMS requests to UberX Partners to attend interviews sufficiently proximate to commission of offences | Privilege claim rejected |
| 46 | Advice privilege (s 118) | Challenge: purpose, s 125 | Not challenged | In dispute: purpose, s 125 | s 118 purpose is established. s 125 - Document is not in furtherance of Ridesharing Offences | Privilege claim upheld |
| 47 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: purpose | In dispute: purpose, s 125 | s 118 purpose in respect of redacted portions is established. s 125 – Redacted portions of document are not in furtherance of Ridesharing Offences | Privilege claim upheld |
| 49 | Advice privilege (s 118) Litigation privilege (s 119) | Challenge: purpose, s 125 | Challenge: purpose, s 125 | In dispute: purpose, s 125 | s 118 purpose is established. s 119 purpose not established. No evidence of actual or anticipated proceedings involving Uber, as opposed to drivers. s 125 - Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons | Privilege claim rejected |
| 51 | Advice privilege (s 118) | Challenge: s 125 | Not challenged | In dispute: s 125 | s 125 - Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons | Privilege claim rejected |
| 52 | Advice privilege (s 118) | Challenge: purpose | Challenge: purpose | In dispute: purpose | s 118 purpose is established | Privilege claim upheld |
| 53 | Advice privilege (s 118) | Challenge: s 125 | Not challenged | In dispute: s 125 | s 125 - Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons | Privilege claim rejected |
| 54 | Advice privilege (s 118) | Challenge: purpose, s 125 | Not challenged | In dispute: purpose, s 125 | s 118 purpose is not established, including for the reason that the redacted portion does not reveal the substance of legal advice. s 125 - Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons | Privilege claim rejected |
| 56 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: purpose, s 125 | In dispute: purpose, s 125 | s 118 purpose not established. There is nothing in the emails to suggest that the information is being collated for the dominant purpose of providing legal advice s 125 – if it was privileged, then I am satisfied that the Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons | Privilege claim rejected |
| 57 | Advice privilege (s 118) | Challenge: s 122, s 125 | Not challenged | In dispute: s 122, s 125 | s 122 – insufficient evidence to establish waiver. s 125 – Redacted portion of Document is in furtherance of Ridesharing Offences, see paras 280, 287 and 291 of Reasons | Privilege claim rejected |
| 59 | Advice privilege (s 118) | Challenge: s 122, s 125 | Not challenged | In dispute: s 122, s 125 | s 122 – insufficient evidence to establish waiver. Although it is a script for Uber employees when communicating with drivers, there is no evidence to say whether the script was actually used. s 125 – Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons | Privilege claim rejected |
| 60 | Advice privilege (s 118) | Challenge: purpose | Not challenged | In dispute: purpose | s 118 purpose is established | Privilege claim upheld |
| 61 | Advice privilege (s 118) | Challenge: purpose, s 122 | Challenge: purpose | In dispute: purpose, s 122 | s 118 purpose not established – there is nothing from the email or its description of the documents attached to it which suggest any of them convey legal advice. s 122 – First Hanson Affidavit at [252] states recipients of the email included stockholder representatives of Uber Technologies Inc. I accept Andrianakis Submission at [223] and I do not accept the inference urged upon me by Uber Reply Submission at [353] | Privilege claim rejected |
| 62 | Advice privilege (s 118) | N/A (relates to Taxi Apps only) | Challenge: purpose | In dispute: purpose | s 118 purpose is not established. The first email in the chain dated 28 April 2015 from Mr Rohrsheim to Mr Kitschke and others is not privileged and is not the subject of a privilege claim (First Hanson Affidavit, [256]). There is nothing on the face of the document, particularly the email from Ms Johnson to Mr Man to establish privilege (no legal advice is sought or obtained) or that the copy of the Rohrsheim email is a privileged copy of an unprivileged document |
| 63 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: purpose, s 125 | In dispute: purpose, s 125 | s 118 purpose is established. s 125 – Document is not in furtherance of Ridesharing Offences – not sufficiently connected with the matters identified in paragraph 280 of the Reasons | Privilege claim upheld |
| 64 | Advice privilege (s 118) | Challenge: purpose | Challenge: purpose | In dispute: purpose | s 118 purpose in respect of redacted email is not established. There is no request for legal advice and purpose of Ms Johnson’s email (ie the redacted one) is not to provide legal advice. Plaintiffs’ challenge in respect of Ms Johnson’s independence / alleged non legal role in respect of this Document not accepted | Privilege claim rejected |
| 65 | Advice privilege (s 118) Litigation privilege (s 119) | Challenge: purpose, s 125 | Challenge: purpose, s 125 | In dispute: purpose, s 125 | s 118 purpose is not established. There is insufficient evidence as to the purpose of the Document. The First Hanson Affidavit at [267] is too broad to support the claim and I have not been provided with the document referred to therein so as to consider it further. First Hanson Affidavit at [268] and Second Hanson Affidavit at [36] not accepted, including as on the face of the Document there is no request for legal advice and nothing to suggest that the information is being compiled for that purpose. Plaintiffs’ challenge in respect of Ms Johnson’s independence / alleged non legal role in respect of this Document not accepted. s 119 purpose not established. No evidence of actual or anticipated proceedings involving Uber, as opposed to drivers. s 125 – Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons | Privilege claim rejected |
| 66 | Advice privilege (s 118) | N/A (relates to Taxi Apps only) | Challenge: purpose | In dispute: purpose | s 118 purpose is established | Privilege claim upheld |
| 68 | Advice privilege (s 118) | Challenge: purpose | Challenge: purpose | In dispute: purpose | s 118 purpose is established | Privilege claim upheld |
| 69 | Advice privilege (s 118) | Challenge: purpose | Challenge: purpose | In dispute: purpose | s 118 purpose is established – as an attachment to Document 68, which I have found to be privileged, this Document is also privileged | Privilege claim upheld |
| 70 | Advice privilege (s 118) | Challenge: s 125 | Challenge: s 125 | In dispute: s 125 | s 125 – Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons | Privilege claim rejected |
| 71 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: purpose, s 125 | In dispute: purpose, s 125 | s 118 purpose not established. Nothing on the face of the Document to support First Hanson Affidavit at [283] and [284] that this was information shared with Ms Johnson for the purpose of her seeking legal advice from Brand Partners. Plaintiffs’ challenge in respect of Ms Johnson’s independence / alleged non legal role in respect of this Document not accepted. s 125 – Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons | Privilege claim rejected |
| 72 | Advice privilege (s 118) | Challenge: s 125 | Challenge: s 125 | In dispute: s 125 | s 125 – Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons | Privilege claim rejected |
| 73 | Advice privilege (s 118) | N/A (relates to Taxi Apps only) | Challenge: purpose | In dispute: purpose | s 118 purpose not established. First Hanson Affidavit at [290] not accepted - no evidence, including on the face of the Document, to support contention that the dominant purpose of the communication was for legal advice | Privilege claim rejected |
| 75 | Advice privilege (s 118) | Challenge: purpose | Challenge: purpose | In dispute: purpose | s 118 purpose not established. First Hanson Affidavit at [298] not accepted – no evidence, including on the face of the Document, to support contention that the dominant purpose of the communications between Ms Johnson and Mr Man was for legal advice | Privilege claim rejected |
| 76 | Advice privilege (s 118) | N/A (relates to Taxi Apps only) | Challenge: purpose | In dispute: purpose | s 118 purpose is established | Privilege claim upheld |
| 77 | Advice privilege (s 118) | Challenge: purpose | Not challenged | In dispute: purpose | s 118 purpose is established | Privilege claim upheld |
| 78 | Advice privilege (s 118) | Challenge: purpose | Challenge: purpose | In dispute: purpose | s 118 purpose is not established in respect of the purpose of this Document. Self-evident from inspection that the dominant purpose of the Document is not for the purposes of legal advice. However, to the extent that disclosure of parts of the document would reveal legal advice, those parts may be redacted | Privilege claim over whole Document rejected. Document to be produced for inspection, save that Uber may redact those parts of it which would reveal legal advice |
| 81 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: s 125 | In dispute: purpose, s 125 | s 118 purpose is established in respect of redacted portions. s 125 – Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons | Privilege claim in respect of redacted portions rejected |
| 83 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: s 125 | In dispute: purpose, s 125 | s 118 purpose is established. s 125 – Document is not in furtherance of Ridesharing Offences – clear from inspection of Document that it does not ‘help forward’ the Ridesharing Offences, insufficient connection to Australian operations | Privilege claim upheld |
| 84 | Advice privilege (s 118) | Challenge: privileged due to host / purpose, s 125 | Challenge: s 125 | In dispute: privileged due to host, purpose, s 125 | s 118 purpose is established. s 125 – Document is not in furtherance of Ridesharing Offences – clear from inspection of Document that it does not ‘help forward’ the Ridesharing Offences, insufficient connection to Australian operations | Privilege claim upheld |
| 85 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: s 125 | In dispute: purpose, s 125 | s 118 purpose is established. s 125 – Document is not in furtherance of Ridesharing Offences – clear from inspection of Document that it does not ‘help forward’ the Ridesharing Offences, insufficient connection to Australian operations | Privilege claim upheld |
| 86 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: s 125 | In dispute: purpose, s 125 | s 118 purpose in respect of entire Document not established. That purpose established only in respect of two emails: from Mr Capp dated 5 March 2017 at 10:04am and from Ms Johnson dated 4 March 2017 at 11:25:01pm. s 125 – Document is in furtherance of Ridesharing Offences – see paras 280, 287 and 291 of Reasons. I do not accept that this Document should be categorised in the same way as Documents 83, 84 and 85. Sufficient connection with Australia and within the claim period for Victoria (at least) such that can be seen as ‘helping forward’ the Ridesharing Offences | Privilege claim rejected |
| 87 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: s 125 | In dispute: purpose, s 125 | s 118 purpose is established. s 125 – Document is not in furtherance of Ridesharing Offences – clear from inspection of Document that it does not ‘help forward’ the Ridesharing Offences, insufficient connection to Australian operations | Privilege claim upheld |
| 88 | Advice privilege (s 118) | Challenge: purpose, s 125 | Challenge: s 125 | In dispute: purpose, s 125 | s 118 purpose is established. s 125 – Document is not in furtherance of Ridesharing Offences – clear from inspection of Document that it does not ‘help forward’ the Ridesharing Offences, insufficient connection to Australian operations | Privilege claim upheld |
| 89 | Advice privilege (s 118) | Challenge: s 122, s 125 | Not challenged | In dispute: s 122, s 125 | s 122 – insufficient evidence to establish waiver. s 125 – Redacted portion of Document is in furtherance of Ridesharing Offences, see paras 280, 287 and 291 of Reasons, for same reason as Document 57. | Privilege claim re redacted portion rejected |
SCHEDULE OF PARTIES
S ECI 2019 01926 BETWEEN: NICOS ANDRIANAKIS Plaintiff - v - UBER TECHNOLOGIES INCORPORATED (4849283) First Defendant UBER INTERNATIONAL HOLDING B.V. (RSIN 851 929 357) Second Defendant UBER B.V. (RSIN 852 071 589) Third Defendant UBER AUSTRALIA PTY LTD (ACN 160 299 865) Fourth Defendant RASIER OPERATIONS B.V. (RSIN 853 682 318) Fifth Defendant UBER PACIFIC HOLDINGS B.V. (RSIN 855 779 330) Sixth Defendant UBER PACIFIC HOLDINGS PTY LTD (ACN 609 590 463) Seventh Defendant AND: S ECI 2020 01585 TAXI APPS PTY LTD (ACN 149 538 616) Plaintiff - v - UBER TECHNOLOGIES INCORPORATED (4849283) First Defendant UBER INTERNATIONAL HOLDING B.V.
(RSIN 851 929 357)Second Defendant UBER B.V. (RSIN 852 071 589) Third Defendant UBER AUSTRALIA PTY LTD (ACN 160 299 865) Fourth Defendant RASIER OPERATIONS B.V. (RSIN 853 682 318) Fifth Defendant UBER PACIFIC HOLDINGS B.V. (RSIN 855 779 330) Sixth Defendant UBER PACIFIC HOLDINGS PTY LTD (ACN 609 590 463) Seventh Defendant
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