Gehrke v Noumi Limited

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
GROUP PROCEEDINGS LIST

S ECI 2020 04505

BETWEEN:

NICHOLAS JOHN GEHRKE & ANOR (according to the attached Schedule)	Plaintiffs
- and -
NOUMI LIMITED (FORMERLY FREEDOM FOODS GROUP LIMITED (ACN 002 814 235)) & ANOR (according to the attached Schedule)	Defendants

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JUDGE:	Steffensen AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	8 and 9 May 2023
DATE OF RULING:	12 December 2023
CASE MAY BE CITED AS:	Gehrke & Anor v Noumi Limited & Anor
MEDIUM NEUTRAL CITATION:	[2023] VSC 742

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EVIDENCE — Privilege — Legal professional privilege — Evidence Act 2008 (Vic) ss 118 and 119 — Parts of evidence in support of privilege claim redacted on the grounds of privilege — Whether redacted evidence is privileged — Whether redacted evidence discloses content or substance of communications or documents over which privileged is claimed — Whether disclosure of redacted evidence will waive any privilege claimed — Majority of redactions held to be not privileged — Whether solicitor engagement correspondence is for the dominant purpose of providing legal advice or professional legal services in anticipated litigation — Solicitor engagement correspondence held to be not for dominant purpose — Solicitor engagement correspondence to be produced only with the scope and nature of legal advice and services sought or obtained redacted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	S McNicol KC with H Jager	Slater & Gordon Limited Phi Finney McDonald
For the First Defendant	R Craig KC with A McRobert	Arnold Bloch Leibler
For the Second Defendant	K Loxley	Corrs Chambers Westgarth

Contents

A.. Introduction

B... Noumi’s evidence

C.. Applicable principles

D.. Redactions to the body of Turner 7

D.1         Redactions of topics of legal advice
D.2         Redactions of directors’ concerns
D.3         Redactions of the substance of privileged communications and documents

E... Redactions to the Tab 1 Examples

E.1 Non-Category 10 Documents
E.2 Category 10 Documents

F... Redacted solicitor engagement correspondence

F.1          Noumi’s claim for privilege
F.2          Plaintiffs’ submissions
F.3          Consideration
F.4          Solicitor – client correspondence
F.5          Ashurst – PwC engagement letter

G.. Conclusion and next steps

G.1         Further revised Turner 7 & revised written submissions
G.2         Non-Category 10 documents
G.3         Category 10 Documents
G.4         Orders arising from this ruling

HER HONOUR:

A Introduction

The plaintiffs seek production of discovered documents over which the first defendant, Noumi, claims privilege. In support of its claim for privilege, Noumi relies upon the seventh affidavit of Julia Yvette Turner sworn on 31 March 2023 (‘Turner 7’). Noumi has redacted parts of Turner 7 and its exhibits on the grounds that the information contained therein is privileged under ss 118 and / or 119 of the Evidence Act 2008 (Vic). Noumi seeks the Court to have access to the redacted information in order to determine Noumi’s privilege claims, but otherwise seeks that the information not be disclosed to any other party. Noumi relies upon the eighth affidavit of Ms Turner in support of its claim for privilege in the redactions (‘Turner 8’).
By ruling delivered orally on 20 April 2023, I determined that the due administration of justice will likely require the Court to have regard to the redacted portions of Turner 7. I emphasised the need for redactions to be limited, so as to give the plaintiffs procedural fairness, and the Court the benefit of the plaintiffs’ submissions with respect to the evidence adduced by Noumi. I determined that through Turner 8, Noumi had adduced sufficient evidence in support of its claim for privilege in the redactions to Turner 7. I indicated that I would inspect the redacted information during the hearing and determination of the plaintiffs’ application, to test and scrutinise Noumi’s claim for privilege in these redactions.
I have now inspected the redacted information. For the reasons set out below, in most cases, I am not satisfied that the redacted information is privileged. For the majority, the redacted information is not confidential and has been disclosed by Noumi elsewhere in its evidence. In other cases, I am not satisfied the redacted information discloses, directly or by inference, the content or substance of communications or documents over which Noumi claims privilege. In each case, I am satisfied that disclosure of the redacted information will not constitute any waiver by Noumi of the privilege that it claims.
In respect of a small number of redactions, I have determined that they may reveal the content or substance of communications or documents over which privilege is claimed. I have determined that it is appropriate for these to remain redacted pending determination of Noumi’s privilege claims.
Annexed to this ruling is a table which summarises the effect of the ruling with respect to each redaction to Turner 7. I address the redactions by reference to the section of Turner 7 in which they are located.
The redactions made to the body of Turner 7 are addressed in Part D below. In respect of all but one of these redactions, I am not satisfied that the redacted material is privileged.
The redactions made to 32 paragraphs of Tab 1 of Exhibit JYT-5 to Turner 7 (‘Tab 1 Examples’) are addressed in Part E below. I am not satisfied that some or all of the redacted material in 26 of the 32 paragraphs is privileged.
Ms Turner has exhibited to Turner 7 copies of engagement correspondence between Noumi and its lawyers (Ashurst, Arnold Bloch Leibler (‘ABL’) and Sullivan & Cromwell LLP), and as between Ashurst, and forensic accountants at PricewaterhouseCoopers (‘PwC’). Noumi has redacted this correspondence in its entirety on the grounds of legal professional privilege. Noumi’s claim for privilege in this engagement correspondence is addressed in Part F. Noumi has not established that the entirety of the engagement correspondence is privileged. It is apparent that the engagement correspondence was sent for multiple purposes, and I am not satisfied that the dominant purpose of the communications was for Noumi to be provided with legal advice or professional legal services relating to anticipated or pending proceedings. The engagement correspondence should be disclosed to the plaintiffs in a redacted form, with the parts of the correspondence that reveal scope or nature of the advice sought or obtained by Noumi redacted (to the extent that the information is confidential).
Upon disclosure to the plaintiffs of a revised version of Turner 7 and Noumi’s written submissions, the plaintiffs will be given an opportunity to adduce any further evidence or submissions on which they wish to rely in light of the newly revealed information. Noumi will then be given an opportunity to raise any arguments in reply thereto.
Thereafter, I will determine whether it is appropriate to uphold Noumi’s claims for privilege in the documents that are the subject of the plaintiffs’ application.

B Noumi’s evidence

In support of its claim for privilege in the redactions, Noumi primarily relies upon Turner 8, and in particular, Annexure B to Turner 8, which sets out the basis for the claim for privilege in each of the redactions (‘Redactions List’). Noumi also relies upon aspects of Turner 7 and its written submissions filed on 11 April 2023.
At paragraph 11 of Turner 7, Ms Turner explains why aspects of her evidence have been redacted. Ms Turner says that the privileged communications are referred to for the purpose of assisting the Court, and that Noumi is concerned that if it is disclosed to any other person it:
… may prejudice Noumi both by revealing information which is confidential to it … and because the plaintiffs might rely upon it as operating as a waiver to the claims of privilege that Noumi has made and seeks to maintain.
This evidence is further expanded upon in Turner 8, where Ms Turner states her concern that disclosure of the redacted information would be contrary to the administration of justice.[1] Ms Turner says she is concerned that disclosure would prejudice Noumi’s defence of this proceeding and the proceedings brought against it by the Australian Securities and Investment Commission (‘ASIC’).[2] Ms Turner also says that she is concerned the plaintiffs would obtain a strategic advantage in the proceeding, and repeats her concern that the plaintiffs will argue disclosure of the redacted material will operate as a waiver of Noumi’s privilege.[3]
[1]Turner 8, [25].
[2]Ibid [25]–[29].
[3]Ibid [25].

C Applicable principles

Legal professional privilege protects from disclosure confidential communications and documents made for the dominant purpose of lawyers providing legal advice to their clients, or for the dominant purpose of the client[4] being provided with professional legal services in relation to anticipated or pending proceedings.[5]
[4]Evidence Act 2008 (Vic) s 118 (‘Evidence Act’).
[5]Ibid s 119.
Communications between a lawyer and their client will be privileged notwithstanding they do not contain advice on matters of law, provided that they are directly related to the performance by the lawyer of their professional duty as legal adviser to the client.[6]
[6]AWB Ltd v Cole (No 5) (2006) 155 FCR 30, 47 [46] (Young J).
The protection extends beyond the material that literally comprises the communication, record of the communication or document. It protects from production secondary documents:
(a)which record confidential legal advice or confidential legal work;[7]
(b)which reveal the content of a privileged communication;[8] or
(c)from which a reader might infer the nature of the advice sought or given.[9]
[7]AWB Ltd v Cole (2006) 152 FCR 382, 415 [127] (Young J) (‘AWB v Cole’).
[8]Saunders v Commissioner Australian Federal Police (1998) 160 ALR 469, 472 (French J).
[9]Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 569 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ).
In doing so, the law protects the privileged communication against the risk that it will be disclosed by secondary evidence.[10]
[10]AWB v Cole (n 7) 417 [132] (Young J).
When considering whether a secondary document is privileged from production, the question is whether the disclosure will directly reveal, or allow its reader to infer, the actual content or substance of a privileged communication or document.[11]
[11]Ibid 417 [132]–[137].
In AWB v Cole, Young J said that it is logical to apply this principle in a way that matches the circumstances in which the doctrine of waiver is applied.[12] His Honour had regard to the circumstances where voluntary references to the gist or conclusion of legal advice amounts to imputed waiver of the whole of the advice. Waiver in such circumstances arises due to the unfairness and inconsistency in seeking to maintain privilege in respect of parts of legal advice where the substance of the advice had been voluntarily disclosed. Conversely, where there has been a mere reference to the existence of legal advice, there will be no waiver.[13] For example, voluntary disclosure of a memoranda of fees will not amount to an implied waiver of the privilege in the underlying documents, provided that the memoranda does not disclose the nature and content of the privileged communications.[14]
[12]Ibid 418 [135].
[13]Ibid 418-20 [135]–[139].
[14]Ibid 420 [139], citing Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd t/as Uncle Ben's of Australia (1994) 126 ALR 58, 67-68 (Tamberlin J).
Of course, if the content of a privileged communication is no longer confidential, then any reference to it in a secondary document similarly loses any privilege that might have once existed.

D Redactions to the body of Turner 7

The redactions to the body of Turner 7 fall into three broad categories:
(a)redactions regarding the topics on which Noumi sought or obtained legal advice, which I address in Part D.1 below;
(b)redactions of concerns expressed by Noumi’s directors which are said to reveal privileged communications, which I address in Part D.2 below; and
(c)redactions of what is submitted to be the substance of a privileged communication or document, which I address in Part D.3 below.

D.1 Redactions of topics of legal advice

The redactions to paragraphs 51(a) and (b), 55(a), 58(b), 61 and 91 of Turner 7 are to the topics on which Noumi sought advice from Ashurst. In each case, Noumi claims privilege on the basis that:[15]
(a)the redacted topics of legal advice have not been the subject of public comment by Noumi; and
(b)disclosure of the topics would therefore disclose the substance of a confidential communication between Noumi and Ms John of Ashurst, made for the dominant purpose of seeking legal advice and/or professional legal services in relation to anticipated proceedings. In the case of the redaction to paragraph 91 of Turner 7, Noumi does not specify that the confidential communication was between Noumi and Ms John, but rather between Noumi and Ashurst more generally.[16]
[15]Redactions List, items 1, 2, 4, 5, 9 and 13.
[16]Ibid item 13.
Noumi does not adduce evidence of any particular communication between Ashurst and Noumi the content of which would be disclosed if the topic of legal advice is revealed. Rather, Noumi is asking the Court to draw an inference that the topic of legal advice would have been disclosed in an unspecified confidential communication between an unidentified person at Noumi and Ms John or someone else at Ashurst.

D.1.1 Paragraph 51

The first redaction to paragraph 51(a) reveals instructions to Ashurst to identify certain facts, and that legal advice was sought on those facts. The substance of the legal advice is not revealed. The scope or nature of the advice sought also is not revealed, save in the broadest sense.
This aspect of Noumi’s engagement of Ashurst is not confidential. It is referred to in a letter sent by Noumi to a third party, a copy of which is exhibited at Tab 6 of Turner 7. This letter and its contents have been disclosed by Noumi to the plaintiffs in accordance with an agreed confidentiality regime.[17] Further, Noumi has openly disclosed that Ashurst was engaged in relation to financial irregularities[18] and its employee equity incentive plan.[19] I therefore do not accept Noumi’s submission that the topic disclosed in the first redaction in paragraph 51(a) is confidential.[20]
[17]Order 4 of the Order of Steffensen AsJ dated 20 April 2023.
[18]Turner 7, [48(d)].
[19]See, for example, item 1 of the Redactions List.
[20]Redactions List, item 1.
The second redaction to paragraph 51(a) reveals the parties who may commence proceedings in relation to Noumi’s conduct. That particular conduct is referred to in paragraph 50(d) of Turner 7, and is not confidential. Noumi’s engagement of Ashurst for legal advice in respect of that conduct, and potential proceedings relating to that conduct, is also not confidential. It is referred to in paragraph 50(d) and the unredacted portions of paragraph 51(a) of Turner 7, the ASX Announcement made on 25 June 2020[21] and in item 1 of the Redactions List. Thus, the only aspect of the matters referred to in paragraph 51(a) that may be confidential is the identity of the potential parties who may commence proceedings. However, it is obvious that they are potential claimants in relation to any failure by Noumi in connection with this conduct.
[21]Turner 7, JYT-4, Tab 6.
If the information redacted in paragraph 51(a) was disclosed to the plaintiffs, it would not result in the waiver of any privilege in the underlying communications between Noumi and its lawyers, as only the fact that legal advice and services were sought is revealed. The substance or nature of the legal services sought is not revealed directly or by inference, nor is the content of any specific privileged communication.
I am therefore not satisfied that the redactions to paragraph 51(a) are privileged.
The redaction to paragraph 51(b) reveals instructions by Noumi to Ashurst to consider whether claims might be brought against Noumi in relation to any failures by Noumi. The redaction identifies a potential plaintiff who might bring such claims. The redaction identifies, at an extremely high level, the subject matter that might give rise to proceedings, and a related topic of legal advice.
By reason of the following facts, which are not confidential, I am not satisfied that the redaction to paragraph 51(b) is privileged:
(a)the fact that Noumi engaged Ashurst in relation to financial irregularities and an investigation by ASIC is referred to in Turner 7 at paragraph 48(d);
(b)the fact that this engagement extended to advice in respect of potential claims that might arise from financial irregularities may be inferred by Noumi’s claim that the redactions in Turner 7 are privileged under s 119 of the Evidence Act; and
(c)Ashurst’s engagement is also referred to in the confidential correspondence at Tab 6 of JYT-1.
Further, if the redaction to paragraph 51(b) were disclosed to the plaintiffs, it would not result in the waiver of any privilege in underlying communications between Noumi and its lawyers, as only a subject of the communication is revealed, not its substance or content.

D.1.2 Paragraph 55(a)

The first clause of redaction to paragraph 55(a) repeats the fact of Ashurst’s retainer in respect of the topics referred to in the redactions to paragraph 51 of Turner 7.[22] Accordingly, for the same reasons set out above, I am not satisfied that the information in the first clause of the redactions is confidential, and thereby I am not satisfied that it is privileged.
[22]That is, from the commencement of the redaction, to the first comma.
The next clause of the redaction to paragraph 55(a) states that Ashurst’s engagement ‘…was expanded around the time of that ASX announcement to include legal advice in relation to matters concerning…’. This phrase is clearly not privileged, and ought not to have been redacted.
After this phrase, the balance of the redaction to paragraph 55 sets out additional topics of legal advice and professional legal services in respect of which Ashurst were engaged, including, at a high level, potential claims relating thereto. However, these broad topics of legal advice and services have been disclosed by Noumi in the unredacted portions of their evidence and submissions.
The fact that Ashurst was engaged in relation to the write-down of inventory by Noumi is referred to in the ASX Announcement made by Noumi on 25 June 2020. This announcement refers to Noumi continuing to review its inventory levels, and expected write-downs, and that Ashurst and PwC have been engaged to advise in relation to these matters.[23] Ashurst’s engagement is also referred to in Noumi’s ASX Announcement dated 30 June 2020, which states ‘Further to the Company’s statement to the ASX on June 25 2020, Freedom Foods has engaged Ashurst and PwC to advise and assist with ongoing investigations into the Company’s financial position’.[24] The redacted portion of paragraph 55(a) does not provide any further detail about the nature or substance of the advice sought or obtained by Noumi in relation to its inventory write-down.
[23]Turner 7, JYT-4, Tab 6.
[24]Affidavit of R Foley filed on 9 March 2023, Exhibit RSF-1, 12 (‘Foley Affidavit').

The balance of the redacted material in paragraph 55(a) is in similar terms to that set out in the redaction to paragraph 51(b) of Turner 7, save that the class of plaintiff who may bring potential claim is identified. Accordingly, for the reasons set out above, I am not satisfied that this information is confidential.
Further, if the redactions to paragraph 55(a) were disclosed to the plaintiffs, it would not result in waiver of any privilege in underlying communications between Noumi and its lawyers, as only the high-level topics of legal advice and services sought are disclosed. The nature or substance of the advice sought or given is not disclosed directly or by inference.

D.1.3 Paragraph 58(b)

The redacted portions of paragraph 58(b) of Turner 7 identify topics of legal advice and professional legal services which, in large part, repeat those set out in the redactions to paragraphs 51(b), 55(a) and 58(b) of Turner 7.
Accordingly, for the reasons set out above, I am not satisfied that the information redacted in paragraph 58(a) is confidential.
I do not accept Noumi’s submission that the substance of legal advice or professional legal services is disclosed in the redactions to paragraph 58(a).[25] Only the broad topics are disclosed. There is no disclosure, directly or by inference, of the substance of legal advice or professional legal services sought or given by Ashurst. Accordingly, I do not consider that disclosure of these redactions will waive any privilege subsisting in the underlying communications between Noumi and its lawyers.
[25]Redactions List, item 5.

D.1.4 Paragraph 61

The redacted portions of paragraph 61 refer to broad topics of advice and services sought by Noumi from Ashurst, and the broad nature of the anticipated proceedings. Whilst anticipated proceedings are referred to, the precise nature of the anticipated proceedings is not disclosed. For example, no potential plaintiffs or causes of action are identified in paragraph 61.
The broad topics of legal advice disclosed in the redactions to paragraph 61, in large part, have been referred to in the redacted portions of paragraphs 55(a) and 58(b). Accordingly, for the reasons set out above, I am not satisfied that the fact that Ashurst was engaged in relation to these topics is confidential. I am therefore not satisfied that the redaction to paragraph 61 is privileged.
Noumi accepts that the fact that Ashurst’s engagement extended to advice concerning prior period financial statements is not confidential, but submits that the redacted portions reveal the nature and substance of that advice.[26] I do not accept this submission. The redacted portions do not refer to any detail as to the substance of the advice sought or obtained by Noumi. Only broad topics are identified, and it is not possible to infer from these topics the nature or substance of the legal advice sought by Noumi. Accordingly, I do not consider that disclosure of these redactions will result in waiver of any underlying communications between Noumi and its lawyers.
[26]Redactions List, item 9.

D.1.5 Paragraph 91

The redacted portion of paragraph 91 reveals topics on which Ashurst were engaged to advise. These topics are referred to in the redactions to paragraph 51 of Turner 7. Accordingly, for the reasons set out above, I am not satisfied that the redactions to paragraph 91 of Turner 7 are of confidential information.
I do not accept Noumi’s submission that the substance of legal advice is revealed in the redactions.[27] The broad topics are set out. There is no disclosure of the content of any privileged communication between Noumi and Ashurst, nor any advice provided to Noumi. Accordingly, privilege in any underlying communications between Noumi and Ashurst will not be waived by the disclosure of the redactions to paragraph 91 of Turner 7.
[27]Ibid item 13.
I am therefore not satisfied that the redactions to paragraph 91 are privileged.

D.2 Redactions of directors’ concerns

D.2.1 Concerns communicated by Mr Allen – paragraphs 53(c), 59 and 62

Three paragraphs of Turner 7 have been redacted to keep confidential concerns held by Mr Trevor Allen (paragraphs 53(c) and 62), and the Noumi Board (paragraph 59). In each case, Ms Turner says that she has been informed of the concerns by Mr Allen. The concerns have been redacted on the grounds of legal professional privilege.[28]
[28]Ibid items 3, 6, and 10.
Mr Allen was appointed as a non-executive director of Noumi in 2013. He served as Noumi’s Company Secretary on an interim basis during the period from June to July 2020.[29] Mr Allen retired as a director of Noumi on 29 January 2021.[30]
[29]Turner 7, [44].
[30]Ibid [45].
Ms Turner says that following the departure of Noumi’s former Chief Executive Officer and Chief Financial Officer on or about 24 June 2020, Mr Allen maintained a close relationship with Noumi’s new management team on financial and audit matters.[31] Ms Turner says that as a consequence, he was involved in some of the communications over which Noumi claims privilege.[32]
[31]Ibid [44].
[32]Ibid [45].
In paragraph 53(c), Ms Turner says that Mr Allen has informed her of concerns he had ‘at the time of Ashurst’s engagement’ and that he believes one other person had similar concerns.
In paragraph 59, Ms Turner says that Mr Allen has informed her that the Noumi Board discussed particular concerns.
In paragraph 62, Ms Turner says that Mr Allen has informed her that he continued to hold a view in relation to a particular matter. That matter is set out in almost identical terms as the concern which has been redacted in paragraph 59.
On their face, each of these redactions reveals the content of conversations between Ms Turner and Mr Allen for the purpose of drawing Ms Turner’s evidence. Noumi does not claim the redactions to be privileged on the grounds that the conversations between Ms Turner and Mr Allen were privileged.
Rather, privilege is claimed on the basis that the redactions reveal ‘confidential concerns expressed by’ Mr Allen,[33] and Noumi’s Board.[34] Rather, privilege is claimed on the basis that the redactions reveal ‘confidential concerns expressed by’ Mr Allen,[35] and Noumi’s Board.[36] The concerns are said to ‘relate to the thought process of Noumi behind, or the nature and purpose of, the engagement of’ Ashurst and PwC by Noumi. Noumi submits that from the redacted concerns ‘one may infer the nature of the advice sought or given (including the nature of instructions provided by Noumi)’.[37]
[33]Redactions List, items 3 (re paragraph 53(c)) and 10 (re paragraph 62).
[34]Ibid item 6 (re paragraph 59).
[35]Redactions List, items 3 (re paragraph 53(c)) and 10 (re paragraph 62).
[36]Ibid item 6 (re paragraph 59).
[37]Ibid items 3 (re paragraph 53(c)), 6 (re paragraph 59), 10 (re paragraph 62). The basis of the privilege claimed is expressed in identical terms in items 3, 6 and 10 of the Redactions List.
Noumi submits that ‘Mr Allen was involved in some of the communications the subject of the Privileged Materials, in particular those that relate to the engagement of Ashurst during 2020’.[38] It appears from this that Noumi is seeking the Court to conclude that the redacted concerns were the subject of a confidential communication which is protected from disclosure by privilege.
[38]Ibid items 3, 6 and 10.
For Mr Allen or Noumi’s Board’s concerns to protected from disclosure by privilege, the Court must be satisfied that the concerns were communicated only in circumstances that would attract legal professional privilege. That is, the concerns were confidentially communicated to a lawyer for the dominant purpose of the lawyer providing advice to Noumi, such that the concerns would attract privilege under s 118 of the Evidence Act. Or, alternatively, that the concerns were confidentially communicated to a lawyer or someone else for the dominant purpose of Noumi being provided with professional legal services in connection with anticipated or pending litigation, such that the concerns would attract privilege under s 119 of the Evidence Act.
However, Noumi has not adduced evidence as to whether, and if so, to whom, Mr Allen or the Noumi Board expressed their concerns, or the circumstances in which they were communicated. There is no evidence from which the Court may conclude that the concerns were communicated in circumstances that might attract privilege. The generalised evidence as to Mr Allen’s involvement in communications over which privilege is claimed does not provide a sufficiently specific evidential foundation to sustain a claim for privilege in the redacted concerns.
In any event, I do not accept Noumi’s submission that disclosure of the redacted concerns will allow inferences to be drawn as to the nature or substances of the advice sought or given to Noumi. The redacted concerns do not reveal any particular advice sought by Noumi, nor any particular instructions it gave to Ashurst. At its highest, the concerns reveal the broad nature of possible legal proceedings. It is not possible to infer from the redacted concerns, other than in the most general sense, the nature or substance of the legal assistance sought by Noumi in connection with the possible proceedings.
Accordingly, given the insufficient evidence, I am not satisfied that the redactions made to paragraphs 53(c), 62 and 59 of Turner 7 are privileged.

D.2.2 Mr Perich’s concerns - paragraph 74

At paragraphs 74(a) and (b) of Turner 7, Ms Turner gives evidence of matters of which she has been informed by Michael Perich. Mr Perich is the Chief Executive Officer of Noumi.[39] The matters have been redacted on the basis that they are privileged, on the grounds that they refer to ‘confidential concerns’ expressed by Mr Perich:
… which relate to the thought processes of Noumi behind, or the nature and purpose of, the engagement of Arnold Bloch Leibler and from which one may infer the nature of the advice sought or given (including the nature of instructions provided by Noumi).[40]
[39]Turner 7, [41].
[40]Redactions List, item 12.
During the course of the hearing, I ruled that I was not satisfied that the information redacted in paragraph 74(a) was privileged.[41] I will give reasons for that ruling now.
[41]Transcript of Proceedings, Gehrke, Nicholas John vs Noumi Limited (Supreme Court of Victoria, S ECI 2020 04505, Steffensen AsJ, 8 May 2023) 90 (‘Transcript 8 May 2023’).
Noumi submitted that this evidence was privileged on the grounds that it was a communication from Mr Perich to Ms Turner, who is part of the in-house legal team at Noumi.[42] There is no evidence from which the Court may infer that the communication between Ms Turner and Mr Perich referred to in paragraph 74(a) was for the dominant purpose of Ms Turner giving Mr Perich legal advice or professional legal services.[43] Given that Ms Turner was not employed by Noumi in August 2020,[44] it cannot be said that Mr Perich told her this information for the purpose of seeking legal advice or professional legal services. Rather, it is apparent that communication between Ms Turner and Mr Perich was for the purpose of drafting Turner 7 and adducing evidence in support of Noumi’s claim for privilege.
[42]Ibid 89.
[43]Paragraph 74(a) was initially redacted but was subsequently revealed to the plaintiffs.
[44]Ms Turner’s employment with Noumi commenced on 7 June 2021: Turner 7, [23].
Accordingly, there is insufficient evidence to sustain Noumi’s claim for privilege in the redactions to paragraph 74(a) of Turner 7.
Further, I do not accept Noumi’s submission that one may infer from the redacted information the nature of the advice sought by or given to Noumi, or instructions given to ABL. Paragraph 74(a) simply refers to the fact and timing of a dispute between Noumi and Blue Diamond Growers. The fact of that dispute, and ABL’s engagement in relation thereto, is referred to in paragraphs 48(e) and 73 of Turner 7. The timing of the dispute is expressed in paragraph 74(a) at a very general level. I do not accept that disclosing the fact or timing of the dispute gives rise to any ability of the reader to infer the nature of the advice sought by or given to Noumi, or the nature of the instructions to ABL in connection with the dispute. The matters disclosed in paragraph 74(a) do not go any further than what Ms Turner has already openly disclosed in paragraph 73 of Turner 7.
The first part of the redaction to paragraph 74(b) of Turner 7 refers to the fact of without prejudice discussions. It does not refer to the content of those discussions nor any other detail of them.
The second part of the redaction refers to a concern held by Mr Perich at the relevant time that a particular future state of affairs may come to pass.
As was the case with Mr Allen’s concerns referred to in paragraphs 53(c), 59 and 62 of Turner 7, there is no evidential basis for the assertion that Mr Perich’s concern was kept confidential, and only communicated in circumstances that would attract privilege. There is no evidence as to whether, and if so, to whom, Mr Perich communicated his concerns, or the circumstances of any communication.
In any event, there is also no evidence as to Mr Perich’s dealings with internal or external lawyers in connection with the Blue Diamond dispute, from which it might be inferred that his concern was communicated by him to a lawyer. In this regard, I note that ABL’s engagement letter with respect to the Blue Diamond dispute is not addressed to Mr Perich[45], and Noumi’s list of the privileged documents does not appear, from the information disclosed therein, to include any communications between Mr Perich and ABL.[46]
[45]Turner 7, JYT-5, Tab12.
[46]Turner 7, Annexure A.
The evidence in paragraph 74 is that the concern was communicated by Mr Perich to Ms Turner, which led to Ms Turner deposing to paragraph 74. For the same reasons set out above, I am not satisfied that the dominant purpose of the communication between Mr Perich and Ms Turner was to seek or obtain legal advice or professional legal services.
Accordingly, I am not satisfied on the evidence adduced by Noumi that the concern was expressed by Mr Perich in a confidential communication for the dominant purpose of seeking or obtaining legal advice or professional legal services.
Further, I do not accept that disclosure of Mr Perich’s concern will allow inferences to be drawn as to the nature or substance of the advice sought by or given to Noumi. First, Mr Perich’s concern as expressed at paragraph 74(b) does not reveal any advice sought or given by ABL to Noumi, or any particular instructions Noumi gave to ABL. Secondly, it does not give any further information as to the nature of the advice sought beyond that which one may infer from the unredacted portions of paragraphs 48(e), 73 and 75.

It can be inferred from the proximity of the engagement of ABL in connection with the dispute, and the subsequent litigation, that advice was sought from ABL in connection with anticipated proceedings, and that this advice was sought prior to proceedings being commenced in September 2020. The redacted portions of paragraph 74(b) do not allow the reader to draw any other inferences as to the nature of legal assistance that Noumi sought from ABL.
Accordingly, I am not satisfied that Mr Perich’s concern may reveal advice sought or received by Noumi from ABL, or any instructions to ABL which are confidential. To the extent that these matters were, at some point in time confidential, they are no longer so. Therefore, Noumi can longer sustain a claim of privilege in respect of these matters.
I therefore am not satisfied on the evidence adduced by Noumi that the redacted information in paragraph 74(b) of Turner 7 is privileged.

D.3 Redactions of the substance of privileged communications and documents

Noumi has redacted portions of paragraphs 60(a), (b), (f) and (g), 102(b)(i)(A) and 106(a) of Turner 7 on the grounds they reveal the content or substance of privileged communications or documents.[47]
[47]Redaction List, items 7, 8, 14 and 15.

D.3.1 Paragraph 60(a) and (b)

Ms Turner deposes at paragraphs 60(a) and (b) to the content of conversations between Mr Allen and Ms John of Ashurst. The portions of these paragraphs which reveal the content of the communications have been redacted for privilege. The basis of the privilege claim is set out at item 7 of the Redactions List. During the course of the hearing, I reviewed the redacted portions and ruled that I was satisfied that these redactions revealed the contents of confidential communications between a lawyer and their clients for the dominant purpose of seeking legal advice.[48]
[48]Transcript of Proceedings, Gehrke, Nicholas John vs Noumi Limited (Supreme Court of Victoria, S ECI 2020 04505, Steffensen AsJ, 9 May 2023) 21-22 (‘Transcript 9 May 2023’).

D.3.2 Paragraph 60(f)

The redacted portion of paragraph 60(f) refers to a particular discovered document over which privilege is claimed. The redacted portion gives the title of the document, its document identification number, and states that it is a document over which privilege is claimed.
Noumi claims privilege in the redaction on the basis that it discloses the substance of privileged communications between Ms John or other members of Ashurst, Ms Michie and others of PwC and Noumi.[49] Noumi also submits that the redacted information discloses the substance of confidential documents prepared by Ashurst and PwC for the dominant purpose of Noumi being provided with legal advice and/or professional legal services.[50]
[49]Redaction List, item 8.
[50]Ibid.
The document identification number of that document is not itself privileged, and nor are the portions of paragraph 60(f) that state that it is the subject of a claim for privilege. These matters are not confidential, and ought not to have been redacted.
As set out in the relevant entry for the discovered document in Tab 2 of the Privilege List, Noumi claims privilege over the title of the document on the grounds that it may reveal the nature or substance of legal advice or professional legal services sought or received by Noumi.
I am not satisfied that the title of the document is privileged. It is innocuous. It indicates that the document addresses logistics or mechanics concerning the Ashurst – PwC engagement. It does not reveal the nature or content of any advice sought or obtained by Noumi, nor the nature or content of the logistics or mechanics.
At its highest, it may be inferred that legal advice or professional legal services were obtained by Noumi in connection with the logistics or mechanics. However, such an inference is made without any relevant content. It is an inference at a level of generality that I do not consider that any privileged information is disclosed.
I do not consider that disclosure of the title of this document will lead to any waiver of privilege that Noumi may have in that document. In the ordinary course, such a title would have been disclosed in the list of privileged documents prepared in accordance with r 29.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).
I have not (yet) determined whether to uphold Noumi’s claim for privilege in the document referred to in paragraph 60(f), and nor have I inspected it. This will be addressed in a separate determination.
Accordingly, I am not satisfied that the redactions to paragraph 60(f) are privileged.

D.3.3 Paragraph 60(g)

Paragraph 60(g) addresses, at a high level, what Ms John has told Ms Turner with respect to certain actions Ashurst, PwC and Noumi took, or intended to take, in connection with the engagement of PwC forensic, and the services to be provided. No specific documents are referred to in paragraph 60(g). The basis of Noumi’s claim for privilege is the same as per the redactions made to paragraph 60(f).[51]
[51]Ibid. See paragraph 78 above.

Noumi has not identified any specific privileged communications that disclosure of the redacted portions will reveal. Although the title of the discovered document referred to in paragraph 60(f) is also disclosed in paragraph 60(g).
The first sentence of the redaction does not identify any content as to the services with which PwC was engaged to assist Ashurst. It states no more than the fact of the engagement, and the fact that they formulated a plan for that work. The content or nature of that plan is not disclosed. I am therefore not satisfied that this sentence is privileged.
The second sentence identifies a service provided by PwC pursuant to its engagement and addresses the logistics or mechanics by which PwC would have access to information in connection with that service.
I am not satisfied that this aspect of the service to be provided by PwC is confidential. This aspect of PwC’s services is referred to in paragraph 81(c) of Turner 7 and in paragraph 44 of the Tab 1 Examples.
The fact that PwC was engaged with respect to factual and accounting investigations is also not confidential. This is the nature of the matters that Noumi has disclosed was the purpose of Ashurst’s retainer of PwC’s forensic accounting team.[52]
[52]Turner 7, [60]–[63].
The logistics or mechanics referred to in the second sentence of the redaction are similar to that which has been redacted in paragraph 60(f). For the same reasons set out above, I am not satisfied that this information is confidential.
Lastly, the fact that a process was put in place for PwC to have access to Noumi’s documents is addressed in detail in Turner 7 as part of Noumi’s claim for privilege in the Noumi Copy Documents
Accordingly, I am not satisfied that the information redacted in paragraph 60(g) is confidential, and I am therefore not satisfied that it is privileged.
The redacted information does not reveal the content or substance of any identified communication or document over which privilege is claimed, and accordingly, disclosure of this information will not result in waiver of any privilege that Noumi claims in respect of the documents the subject of the plaintiffs’ application.

D.3.4 Paragraph 102(b)(i)(A)

The redacted portions of paragraph 102(b)(i)(A) reveal the titles of two documents, or types of documents, over which Noumi claims privilege. The document titles or types are also referred to in the redacted portions of paragraph 60(f) and (g). For the reasons set out above, I am not satisfied that the reference to the titles of these documents in paragraph 102(b)(i)(A) is privileged. The redacted portions do not address the content of these two documents, just the fact of their existence. The titles are innocuous and do not disclose the substance or content of the documents. Accordingly, I am not satisfied that the redacted portion of paragraph 102(b)(i)(A) is privileged.

D.3.5 Paragraph 106(a)

The redaction to paragraph 106(a) addresses an administrative practice adopted by PwC. Noumi claims privilege over the redaction on the basis that it will disclose the substance of privileged communications.[53]
[53]Redactions List, item 15.
I am not satisfied on the evidence adduced by Noumi that the administrative practice will disclose the substance of a privileged communication between Ashurst, PwC and/or Noumi, or of a privileged document.
First, Noumi has not adduced evidence as to a particular communication between any of PwC, Ashurst and Noumi in which this information was disclosed.
Secondly, there is no evidence from which the Court may be satisfied that even if that information was expressed in a communication between Ashurst, PwC and/or Noumi, that the communication was for the dominant purpose of the provision to Noumi of legal advice or professional legal services in anticipation of litigation. Further, specific evidence would be required in order for the Court to be satisfied that the communication of administrative practices was for a privileged purpose.
Accordingly, I am not satisfied that the redaction to paragraph 106(a) is privileged.

E Redactions to the Tab 1 Examples

The discovered documents over which Noumi claims privilege are set out in Annexure A to Turner 7 (‘Privilege List’). The Privilege List is divided into two categories:
(a)first, Noumi claims privilege over documents discovered pursuant to category 10 of Noumi’s discovery categories. Category 10 requires Noumi to make discovery of documents relating to the 2020 investigation undertaken by PwC into Noumi’s position. These documents are listed in Tab 2 of the Privilege List; and
(b)secondly, Noumi claims privilege over the documents listed in Tab 1 of the Privilege List. These are documents that Noumi has discovered in categories other than discovery category 10. The parties refer to these documents as the “Non-Category 10 Documents”.
In the Tab 1 Examples, Ms Turner addresses Noumi’s privilege claim in respect of a selection of example documents drawn from the Privilege List.[54] In respect of each example document, Ms Turner describes the document and Noumi’s privilege claim in relation thereto. Paragraphs 1 to 15 of the Tab 1 Examples address examples of Non-Category 10 Documents. Paragraphs 16 to 44 address examples of Category 10 Documents.
[54]Turner 7, [88].
Noumi has redacted parts of the Tab 1 Examples on the basis that the redacted information reveals the substance of the example document over which privilege is claimed.
For the reasons detailed below, I am not satisfied that Noumi has established that all of the material redacted in the Tab 1 Examples is, or may be, privileged. In many cases, the redactions are not of information that is confidential. For other cases, I have concluded that the redacted information does not disclose directly or by inference, the content or substance of the document over which privilege is claimed. Accordingly, disclosure of the redacted information will not give rise to a waiver in the privilege claimed in the underlying documents.
With respect to a small number of redactions, I have determined that they may disclose the content or substance of communications or documents over which Noumi claims privilege. I have determined that it is appropriate for this information to remain redacted pending determination of Noumi’s privilege claims.
I have not yet determined whether any of the discovered documents referred to in the Tab 1 Examples are privileged. This will be the subject of a separate determination once the plaintiffs have had access to a revised version of Turner 7 as a consequence of these reasons. Consequently, I have not yet inspected the discovered documents referred to in the Tab 10 Examples. However, where privilege is claimed in only part of a Tab 1 Example Document, I have inspected the redacted version of the document, being the form in which the document has been produced to the plaintiffs.

E.1 Non-Category 10 Documents

E.1.1 Paragraph 2

Paragraph 2 sets out Noumi’s claim for privilege in respect of part of FFG.150.005.0056 and includes a redaction of the topic of legal advice to which the email relates. The unredacted portion of FFG.150.005.005 records that the subject of the email is ‘Re: Advice regarding extension of expiry date of employee share options’. This is the very information redacted in paragraph 2, and accordingly, the redaction to this paragraph is not of confidential or privileged information.

E.1.2 Paragraph 3

Paragraph 3 sets out Noumi’s claim for privilege in respect of part of FFG.015.044.2137. This document is an internal Noumi email dated 17 February 2020 from Campbell Nicholas to Rory Macleod and copied to Luke Collis. The unredacted portions of FFG.015.044.2137 reveal the title of the email to be ‘FW: Urgent: Freedom Foods ACM supply of cream and milk’ and reveal information regarding the factual situation and potential dispute with the supplier (see in particular, pages _0004-_0008). The basis for the privilege claimed FFG.015.044.2137 is that the redacted portions of the email chain were for “the dominant purpose of Noumi seeking, and Ms Stanley providing, legal advice relevant to a supply agreement”.[55]
[55]Privilege List, Tab 1, row 213.
Noumi has redacted paragraph 3 of the Tab 1 Examples in respect of the topic of legal advice which is the subject of FFG.015.044.217. However, the topic has already been disclosed in the unredacted portions of FFG.015.044.2137 and the basis of privilege as set out in Tab 1 of the Privilege List at row 213.
Accordingly, I am not satisfied that the redactions to paragraph 3 of the Tab 1 Examples are confidential or privileged.
Further, Noumi’s claim for privilege extends to the title of the email on the basis that it “may reveal the nature and substance of the legal advice sought”.[56] This claim cannot be maintained in light of the subject of the email being apparent from an inspection of the unredacted portions of FFG.015.044.2137.
[56]Ibid.

E.1.3 Paragraph 4

Paragraph 4 sets out Noumi’s privilege claim in respect of FFG.302.001.0085. As recorded in Tab 1 of the Privilege List at row 201, this document is dated 6 June 2019 and is entitled “52_2019.06.06 April Board Meeting.pdf”.
The redactions in paragraph 4 record the topic of the legal advice and describe aspects of the document and legal advice provided to Noumi’s Board. I am satisfied that the redacted portions may reveal the contents of FFG.302.001.0085, and that accordingly, it is appropriate that they remain redacted until a determination of Noumi’s claim for privilege in FFG.302.001.0085 has been made.
However, it would have been easy, and certainly preferable, for Ms Turner to have drafted paragraph 4 in a manner which did not reveal the content of FFG.302.001.0085. The redacted portions refer to the title of a document in respect of which advice was sought and obtained. The title of that document reveals the nature of the legal advice provided to Noumi by Ms Stanley and PwC Legal. However, this paragraph could have been drafted by replacing the title of the document with the word “document” in the second and third lines of paragraph 4. If such an amendment were made, there would have been no need for Noumi to make any redaction to paragraph 4 of JYT-4. Such a course would have afforded the plaintiffs greater procedural fairness, and the Court greater assistance as a result.

E.1.4 Paragraph 6

Paragraph 6 sets out Noumi’s claim for privilege in respect of portions of FFG.302.006.0833. The unredacted portions of FFG.302.006.0833 provide that it is a Legal and Company Secretarial Report dated January 2019 for Noumi’s February 2019 Board meeting. Section 7 of the report is entitled ‘Legal’, and it has two sub-headings, one being a project name and the second being ‘Vicpak’. Aspects of the report under these two headings have been redacted on the grounds of privilege.
Paragraph 6 of the Tab 1 Examples provides the following additional information in respect of Noumi’s claim for privilege in the redacted portions of FFG.302.006.0833. It states:
Document FFG.302.006.0833 comprises [redacted]. The part of the document over which Noumi has made a claim of privilege comprises a report given by Ms Stanley of Noumi of legal advice given by PwC Legal to Noumi in connection with a potential transaction, [redacted]. As the document discloses, that part of the communication records the contents of a confidential document prepared by PwC Legal for the dominant purpose of Noumi receiving legal advice from PwC Legal in relation to the transaction, [redacted]. Noumi makes a claim of privilege over this part of the communication accordingly.
Noumi claims privilege in the redactions on the basis that they disclose the nature of legal advice provided to Noumi, and the details of a report given by Noumi’s internal counsel to Noumi’s Board in relation to that advice.[57]
[57]Redactions List, item 20.
By the first redaction, Noumi redacts the title of FFG.302.006.0833. As described above, the title of the document is disclosed in the unredacted portions of FFG.302.006.0833, and accordingly, the information in the first redaction is not confidential, and ought to have been disclosed.
The information referred to in the second and third redactions concern, at a most general level, the fact that the report concerns legal advice in connection with a potential transaction. I do not accept Noumi’s submission that the redactions detail the report given by Ms Stanley to Noumi or the record their legal advice. The paragraph does not disclose the parties to the transaction or the nature of it. The redacted portions are at such a high level that it is not possible to infer the nature or substance of the legal advice that Noumi has sought or received.
Accordingly, in my view, the redacted portions of paragraph 6 of the Tab 1 Examples are not confidential and cannot be redacted for privilege.
Further, I do not consider that disclosure of the information redacted in paragraph 6 would result in waiver of any privilege in FFG.302.006.0833. The nature and substance of FFG.302.006.0833 are not disclosed in the redacted information, either directly or by inference.

E.1.5 Paragraph 7

Paragraph 7 of the Tab 1 Examples sets out Noumi’s claim for privilege in respect of FFG.302.006.0646 and FFG.302.006.0647.
As recorded in Tab 1 of the Privilege List at rows 206 and 207, FFG.302.006.0646 and FFG.302.006.0647 are both documents entitled “180316 – March FFGL Board Circular Resolution” dated 16 March 2018. Noumi claims privilege over this document on the basis that it is a confidential memorandum of advice prepared by Noumi's external legal advisers for the dominant purpose of providing legal advice to Noumi in connection with a proposed transaction, and an accompanying Board resolution.[58]
[58]Privilege List, Tab 1, rows 206-207.
Paragraph 7 of the Tab 1 Examples provides further information, and states that:
Documents FFG.302.006.0646 and FFG.302.006.0647 comprises communications between PwC Legal and Noumi recording legal advice given by PwC Legal to Noumi in connection with [Redacted]. Those documents were attached to a circular Board resolution concerning the transactions. As the documents disclose, they are communications between PwC Legal and Noumi made for the dominant purpose of Noumi receiving legal advice from PwC. Noumi makes a claim of privilege over them accordingly.
The redacted portion of paragraph 7 refers to, in very general terms, the proposed transaction. The redaction does not refer to the nature or substance of the legal advice in respect of which Noumi claims privilege. There is no evidence from which the Court may infer that the fact of the proposed transaction is confidential. Further, there is no evidence from which the Court may infer that the fact that Noumi obtained legal advice in relation to the transaction is confidential. Given the nature of the proposed transaction, it may have become a matter public knowledge. If that is the case, it would be a matter of reasonable inference, or, perhaps public knowledge that Noumi obtained legal advice in respect of this transaction it (if public announcements refer to the retainer of lawyers).
I am therefore not satisfied on the evidence adduced by Noumi that the redacted portion of paragraph 7 of the Tab 1 Examples is confidential and the subject of a proper claim for legal professional privilege. In reaching this conclusion, I do not consider the disclosure of this redaction will have the consequence of Noumi waiving any privilege in FFG.302.006.0646, or any other documents over which privilege is claimed in connection with the proposed transaction.

E.1.6 Paragraph 8

Paragraph 8 of the Tab 1 Examples addresses Noumi’s privilege claim in respect of FFG.302.001.0379. As recorded in Tab 1 of the Privilege List at row 202, FFG.302.001.0379 is a document entitled “02_2020.03.17 Board Meeting.pdf” dated 17 March 2020. Noumi claims privilege in respect of the whole of this document on the basis that it is a confidential memorandum that records legal advice provided to Noumi by its legal advisors in relation employee share scheme issues.
Paragraph 8 of the Tab 1 Examples contains two redactions. Noumi claims privilege in the redactions on the basis that they disclose the nature of Ashurst’s legal advice and the contents of FFG.302.001.0379.[59]
[59]Redactions List, item 22.
The first redaction describes information which is apparent from the document’s title as disclosed in Tab 1 of the Privilege List at row 202. This information is therefore not confidential and is not privileged.
The second redaction cross-refers to matters referred to in Turner 7, albeit no specific paragraph is referred to. The redactions refer, in the most general manner, to anticipated proceedings. The fact that Noumi sought and was provided with professional legal services in anticipation of litigation in connection with its employee share scheme issues is a matter which is disclosed in Tab 1 of the Privilege List at row 202. The second redaction provides no further or additional information that was disclosed in Tab 1 of the Privilege List. Accordingly, the information in the second redaction is not confidential, and it ought not to have been redacted.
I do not consider that Noumi, by disclosing the redacted information in paragraph 8 of the Tab 1 examples, will have waived any privilege in FFG.302.001.0379. This is because the nature or substance of the legal advice or professional legal services provided to Noumi are not disclosed in, and cannot be inferred from, the redactions made to this paragraph.

E.1.7 Paragraphs 9 & 10

Paragraphs 9 and 10 of the Tab 1 Examples set out Noumi’s claim for privilege in FFG.150.005.0065.
As recorded in Tab 1 of the Privilege List at row 57, FFG.150.005.0065 is an Outlook Email with the title “emails 3” dated 20 April 2020 from Mr Allen to Ms John. Noumi claims privilege in the whole of the email on the basis that it is a confidential communication between Noumi and Ashurst, which attaches a copy of a document stored in Noumi’s electronic document system. Noumi says the email was sent for the dominant purpose of Ashurst providing Noumi with legal advice or professional legal services.[60]
[60]Privilege List, Tab 1, row 57.
FFG.150.005.0065 has 29 attachments, being FFG.150.005.0066 to 0094 which are described in rows 58 to 86 of Tab 1 of the Privilege List. Noumi has claimed privilege over the titles of each of these attachments on the basis that disclosure of the title ‘may reveal the copy of the document provided to Ashurst’.
Noumi claims privilege in the redactions to paragraphs 9 and 10 of the Tab 1 Examples on the basis that they disclose the substance of FFG.150.005.0065.[61]
[61]Redactions List, item 23.
The redacted portion of paragraph 9 refers to the attachments to FFG.150.005.0065 in almost identical terms to that set out in Tab 1 of the Privilege List at row 57. The description of the attachments is not confidential and is therefore not privileged. The redaction also refers to the aspect of Ashurst’s engagement for which the attachments were provided. The fact that Ashurst was engaged in relation to this matter is disclosed in Turner 7.[62] It is not confidential and should not have been redacted.
[62]See paragraph 25 above.
The redacted portion of paragraph 10 provides evidence as to the purpose of the email and does not refer to any privileged or confidential information.
I do not consider that disclosure of the redacted information in paragraphs 9 and 10 of the Tab 1 examples will result in Noumi waiving any privilege in FFG.150.005.0065 or its attachments. This is because the nature or substance of the legal advice or professional legal services provided to Noumi are not disclosed in the redactions made to this paragraph.

E.1.8 Paragraph 11

Paragraph 11 of the Tab 1 Examples addresses Noumi’s claim for privilege in FFG.150.007.0901.
FFG.150.007.0901 is not referred to in Tab 1 of the Privilege List. It is however referred to in Tab 2 of the Privilege List at row 2545, as an email dated 8 September 2020 from Fiona McGregor of Noumi to Ms John of Ashurst, which is copied to Mr Perich, Mr Allen and Ms Sutherland of Noumi, Mr Golding of Ashurst, and Ms Michie of PwC. The inclusion of this document in Tab 2 of the Privilege List indicates that this a Category 10 document in respect of which Noumi claims privilege. However, this is at odds with the claim outlined in paragraph 11 of the Tab 1 Examples, which is under the heading of “Privilege claims made over ‘non-Category 10’ documents”.
Noumi claims privilege in the redaction made to paragraph 11 of the Tab 1 Examples on the basis that it discloses the substance of FFG.150.007.0901.[63]
[63]Redactions List, item 24.
The redaction refers to a broad topic of legal advice. Noumi has disclosed the fact of Ashurst’s retainer in respect of this broad topic, as addressed in respect of the redactions made to paragraph 51 of Turner 7 (see above in Part D.1.1). The redacted portion does not disclose the substance of any communication, other than by reference to that broad topic. Noumi has not satisfied me that the redacted information is confidential or privileged, and accordingly, it ought to be disclosed to the plaintiffs.
Disclosure of the redacted information in paragraph 11 will not waive any privilege in FFG.150.007.0901. This is because the nature or substance of the legal advice or professional legal services provided to Noumi are not disclosed in, and cannot be inferred from, the redactions made to this paragraph.

E.1.9 Paragraph 14

Paragraph 14 of the Tab 1 Examples addresses Noumi’s claim for privilege in respect of part of FFG.302.005.0106.
As recorded in Tab 1 of the Privilege List at row 233, FFG.302.005.0106 is a document entitled ‘20200927_Notes of Board Update (draft).docx’ dated 28 September 2020. Noumi claims privilege on the basis that the board minutes record legal advice provided to Noumi by ABL.
It is apparent from inspection of the unredacted portions of FFG.302.005.0106 that it meets this description. The document records that Leon Zwier and Genevieve Sexton of ABL attended the meeting. In the section headed “Blue Diamond”, the unredacted portions identify that the directors discussed the status of the Blue Diamond contract and relationship, and notes Blue Diamond’s refusal to engage in commercial discussions with the Company. The decision by the directors to institute proceedings against Blue Diamond is recorded. Noumi has redacted a portion of this section of the minutes on the basis of legal professional privilege.
Noumi claims privilege in the two redactions to paragraph 14 of the Tab 1 Examples on the basis that they disclose the substance of the privileged portions of FFG.302.005.0106, and the substance of without prejudice discussions.[64]
[64]Ibid item 26.
The first redaction to paragraph 14 refers to factual matters as to the broad topics on which ABL was engaged to advise Noumi in respect of the Blue Diamond Growers dispute. These matters are disclosed in paragraphs 73 and 74 of Turner 7 and are not confidential. The first redaction does not reveal the substance or the nature of the legal advice sought by Noumi or provided by ABL, or the substance of the underlying communication. Further, I do not accept Noumi’s submission that this redaction records the substance of without prejudice discussions between Noumi and its supplier. Only the fact of without prejudice discussions is referred to in the redaction. This fact is not confidential, as it is disclosed in item 26 of the Redactions List. The content or substance of without prejudice discussions is not disclosed in the first redaction. Disclosure of the matters in the first redaction will not waive any privilege claimed in FFG.302.005.0106. I am therefore not satisfied that it is privileged.
Following inspection, I am satisfied that the second redaction may reveal the substance of legal advice. Accordingly, it should remain redacted until such time as a determination of Noumi’s claim for privilege in FFG.302.005.0106 has been determined.

E.1.10 Paragraph 15

Paragraph 15 of the Tab 1 Examples addresses Noumi’s privilege claim in respect of part of FFG.302.001.0019. Noumi claims privilege in the redaction to paragraph 15 on the basis that it discloses the substance and nature of legal advice provided to Noumi and the content of FFG.302.001.0019.[65]
[65]Ibid item 27.
As recorded in Tab 1 of the Privilege List at row 217, FFG.302.001.0019 is a document entitled ‘2020.07.20 Signed Minutes FFGL Board Informal Update.pdf’ dated 20 July 2020, in respect of which Noumi makes a partial claim for privilege on the basis that the board minutes record legal advice provided by ABL to Noumi.
It is apparent from inspection of the unredacted portions of FFG.302.001.0019 that it meets this description. The document records that Leon Zwier and Genevieve Sexton of ABL were in attendance at the meeting. The redacted portion of the document is preceded by the words ‘Arnold Bloch Leibler provided legal advice…’.
The redacted portion of paragraph 15 of the Tab 1 Examples records a topic of legal advice, but does not record the substance or content of that advice. Accordingly, disclosure of the topic of legal advice would not result in waiver of any privilege in FFG.302.001.0019, and I am not satisfied that Noumi has established that the redaction to in FFG.302.001.0019 is privileged.

E.2 Category 10 Documents

E.2.1 Paragraph 20

Paragraph 20 of the Tab 1 Examples addresses Noumi’s claim for privilege in FFG.150.007.0022, which is described to be a confidential communication from PwC to Ms John of Ashurst, copied to Mr Allen of Noumi. The redacted portion of paragraph 20 refers to the topic of the email, and the nature of the two attachments to that email. Noumi claims privilege in the redaction on the basis that it reveals the content of FFG.150.007.0022.[66] The substance or the content of the email or the attachments are not otherwise disclosed in the redacted information, and the substance of legal advice or services is also not disclosed. Disclosure of the redacted information would therefore not operate as a waiver of any privilege in FFG.150.007.0022. I am therefore not satisfied that the redaction to paragraph 20 is privileged.
[66]Ibid item 29.

E.2.2 Paragraph 21

Paragraph 21 of the Tab 1 Examples addresses Noumi’s claim for privilege in FFG.150.007.0013, which is described as a calendar invitation sent by Ms John to Ms Michie of PwC and Mr Allen of Noumi.
Noumi claims privilege in the redaction on the basis that will disclose the substance of FFG.150.007.0013, and that it details the matters to be discussed at a confidential meeting between Ashurst, PwC and Noumi.[67]
[67]Ibid item 30.
The redacted portion of paragraph 21 of the Tab 1 Examples reveals the topic of the meeting for which the calendar invitation was sent. However, the description does not identify the substance of the discussions, nor any particular advice or services sought or obtained by Noumi. Accordingly, if the redacted portion were disclosed, any privilege in FFG.150.007.0013 would not be waived. I am therefore not satisfied that the redaction to paragraph 21 is privileged.

E.2.3 Paragraph 22

Paragraph 22 of the Tab 1 Examples provides:
Document FFG.150.007.1223 is a confidential email between Mr Millwood of PwC and Mr Richard of Ashurst by which Mr Millwood provides copies (through an upload) of [redacted]. As the email discloses, that communication was made for the dominant purpose of Ashurst providing legal advice to Noumi and/or Noumi being provided with professional legal services by Ashurst in connection with anticipated proceedings.
Noumi claims that the redacted information is privileged as it discloses the substance of FFG.150.007.1223.[68]
[68]Ibid item 31.
The redacted portion of paragraph 22 describes in broad terms the documents provided by PwC to Ashurst and the organisation who authored the documents. The redaction also refers to an aspect of the services provided by PwC.
I am not satisfied that the redacted information is privileged. As far as it refers to the documents provided to Ashurst by PwC, the redacted information does not describe the documents, nor disclose their contents. The disclosure of the author of the documents and how they were created does not provide any information from which one might infer the nature of the advice sought or obtained from PwC or Ashurst for the benefit of Noumi. The author of a document is information that ordinarily is disclosed in a list of privileged documents prepared in accordance with Rule 29.04 of the Rules, as it provides information which may assist to identify the purpose of the document’s creation.
Insofar as the redaction refers to a service provided by PwC, the fact that PwC was engaged to provide this service is not confidential. It is referred to in paragraph 81(c) of Turner 7 and in paragraph 44 of the Tab 1 Examples. The redaction to paragraph 22 does not provide any detail or information with respect to this service or how PwC provided it.
Accordingly, disclosure of the redacted information would not waive any privilege Noumi may have in FFG.150.007.1223 and I am not satisfied that the redaction to paragraph 22 of the Tab 1 Examples is privileged.

E.2.4 Paragraphs 24 and 25

Noumi claims privilege in the redactions to paragraphs 24 and 25 on the basis that the redacted information discloses the substance FFG.150.007.0210.[69]
[69]Ibid item 32.
The redaction to paragraphs 24 and 25 refers to logistical arrangements as between PwC and Ashurst in connection with the services to be provided, and PwC’s access to documents.
The fact that PwC was engaged to provide this service is not confidential. It is referred to in paragraph 81(c) of Turner 7 and in paragraph 44 of the Tab 1 Examples. The redaction to paragraphs 23 and 24 do not provide any detail or information with respect to this service or how it was provided by PwC. Neither the topic nor the object of the service is disclosed in the redacted information.
The fact that PwC was granted access to Noumi’s documents is not confidential, and is referred to in various parts of Turner 7, particularly in respect of its claim for privilege over the “Noumi Copy Documents”. The nature or subject of the documents sought or obtained by PwC, or otherwise referred to in FFG.150.007.0210, is not disclosed in the redacted information.
Whilst the redacted portions of paragraphs 24 and 25 appear to disclose the content of FFG.150.007.0210, it does so in a manner which is consistent with disclosures made by Noumi in open evidence. Paragraphs 24 and 25 are, in effect, helpful submissions which identify the basis of Noumi’s claim for privilege in respect of FFG.150.007.0210. Disclosure of the redacted information would not give rise to a waiver of privilege in FFG.150.007.0210. I am therefore not satisfied that the redactions to paragraphs 24 and 25 are privileged.

E.2.5 Paragraph 26

Noumi claims privilege in the redaction to paragraph 26 on the basis that the redacted information discloses the substance FFG.150.007.0283.[70]
[70]Ibid item 33.
The redacted portion of paragraph 26 is in same nature as the redactions to paragraphs 25 and 26. For the same reasons, I am not satisfied that the redacted information is privileged, and I do not consider that disclosure of this information would waive any privilege Noumi may have in FFG.150.007.0283.

E.2.6 Paragraph 27

Paragraph 27 of the Tab 1 Examples states:
Document FFG.150.007.0207 is an email sent by Ms John of Ashurst to Mr Allen, Mr Standen (Noumi’s then General Counsel) and Perry Gunner, a director of Noumi, copied to Ms Michie of PwC, [redacted]. That email contains commentary made by Ms John about the letter and a proposed response. As the email discloses, that email comprises a communication made for the dominant purpose of Ashurst providing legal advice to Noumi and/or Noumi being provided with professional legal services by Ashurst in connection with anticipated proceedings (emphasis added).
Noumi claims privilege in the redaction on the basis that it discloses the substance of FFG.150.007.0207.[71]
[71]Ibid item 34.
The unredacted portion of paragraph 27 makes clear that the attachment to FFG.150.007.0207 is a letter. The redacted portion of paragraph 27 identifies the sender and recipient of that letter.
I am not satisfied that the redaction to paragraph 27 is privileged. The identification of the sender and recipient of the letter would ordinarily be disclosed by a party seeking to adduce evidence in support of its claim for privilege. The general rule is that the identities of person involved in a communication are not protected by legal professional privilege.[72] Further, and in any event, disclosure of the identity of the parties to the correspondence does not disclose the nature or substance of the advice provided to Noumi. The redacted information does not disclose any of the content or details of the ‘commentary made by Ms John about the letter and a proposed response’ recorded in FFG.150.007.0207.[73] Accordingly, disclosure of the redacted information will not waive any privilege in the FFG.150.007.0207 or its attachment FFG.150.007.0208.
[72]Rayney v AW [2009] WASCA 203, [43] (McLure JA, Buss and Newnes JJA)(‘Rayney v AW’).
[73]Turner 7, JYT-5, Tab 1, [27].

E.2.7 Paragraph 29

Paragraphs 29 to 31 of the Tab 1 Examples provide Noumi’s further information with respect to its privilege claim over FFG.150.004.0016. The description of FFG.150.004.0016 in row 41 of Tab 2 of the Privilege List provides that this a pdf document dated 26 August 2020, and that:
This document comprises a confidential email communication between the Noumi employee listed as sender and PwC Australia made for, and which also attaches copies made by Noumi of various documents extracted from Noumi's underlying electronic document systems made for, the dominant purpose of Ashurst providing Noumi with legal advice and Noumi receiving professional legal services relating to an anticipated proceeding to which Noumi may be party.
Noumi claims privilege in the redactions to paragraphs 29 to 31 of the Tab 1 Examples on the grounds that they disclose the contents of FFG.150.004.0016.[74]
[74]Redactions List, item 35.
Paragraph 29 of the Tab 1 Examples states:
Document FFG.150.004.0016 is an email between [redacted], and Ms Michie and Ms Bruce of PwC dated 28 August 2020, [redacted].
The first redaction to paragraph 29 identifies the person at Noumi who sent the email to PwC, and their role at the time the email was sent.
The general rule is that the identities of person involved in a communication are not protected by legal professional privilege.[75] The basis for the privilege set out in item 35 of the Redactions List does not outline any basis for a claim for privilege in that person’s identity. Rather, the claim for privilege is on the basis that the redacted information reveals the substance of a confidential communication. I do not accept that disclosure of the identity of this party discloses the substances of FFG.150.004.0016. Disclosure of this information could not lead to a waiver of any privilege in FFG.150.004.0016. I am therefore not satisfied that Noumi has established that the first redaction to paragraph 29 is privileged.
[75]Rayney v AW (n 72) [43] (McLure JA).
The first part of the second redaction to paragraph 29 describes FFG.150.004.0016 as an email by which a Noumi Copy Document is forwarded to PwC. I am not satisfied that this part of the description is confidential. The description is akin to that contained in the unredacted portions of paragraph 31 of the Tab 1 Examples, which states ‘[t]hat email also consists of, and encloses, a Noumi Copy Document’.[76] Accordingly, I am not satisfied that the commencement of the second redaction to paragraph 29 up to the word ‘comprising’ is privileged.
[76]See also the basis of the privilege claimed in FFG.150.004.0016, as set out in Tab 2 of the Privilege List, row 41, which includes the statement that the email “attaches copies made by Noumi of various documents extracted from Noumi’s underlying electronic document systems”.
The next part of the second redaction, after the words ‘comprising’ until the end of the sentence, describes the document attached to FFG.150.004.0016 by reference to its document type, date, the sender and their role, and the recipient. It describes that this attachment also has an attachment, and the description of this second attachment is also disclosed, including the document’s date and title.
I am satisfied that this information may disclose the substance of FFG.150.004.0016. Accordingly, it is appropriate for this information to remain redacted until a determination is made with respect to Noumi’s claim for privilege in FFG.150.004.0016.
The final sentence of the second redaction submits that the topic of the Noumi Copy Document is one of the issues the subject of this Proceeding. Whilst I am satisfied that the topic of the Noumi Copy Document[77] ought to remain redacted pending a decision in respect of FFG.150.004.0016, the remainder of this last sentence of the second redaction to paragraph 29 is not otherwise confidential. It is in the nature of a submission, and ought to have been drafted in a manner which did not require information to be redacted.
[77]The topic is disclosed between the words ‘relating to’ and ‘is one’ in the final sentence of the redaction.
To summarise, only the following parts of the second redaction should remain redacted until Noumi’s claim for privilege in FFG.150.004.0016 is determined:
(a)the words after ‘comprising’ until the end of that sentence; and
(b)the words between ‘relating to’ and ‘is one’ in the final sentence.
Noumi has not established that the remaining parts of the second redaction are privileged.

E.2.8 Paragraph 30

Paragraph 30 of the Tab 1 Examples states:
As the email discloses, [redacted] That communication was made by [redacted] as an employee of Noumi to PwC for the dominant purpose of Ashurst providing legal advice to Noumi and/or professional legal services to it in connection with an anticipated proceeding.
Both redactions to paragraph 30 disclose the sender of FFG.150.004.0016. The first redaction also refers to the purpose for which Noumi submits the email was sent. The redactions do not identify any content of FFG.150.004.0016, or its attachments. To the extent that the redaction refers to the services to be provided by PwC, it does so in a manner consistent with Noumi’s open disclosure of these matters. I am therefore not satisfied that the information redacted in Paragraph 30 is privileged. Disclosure of the redacted information will not result in waiver of any privilege in FFG.150.004.0016.

E.2.9 Paragraph 31

Paragraph 31 of the Tab 1 Examples states:
That email also consists of, and encloses, a Noumi Copy Document, [redacted] for the dominant purpose of Noumi being provided with legal advice by Ashurst and/or professional legal services in connection with an anticipated proceeding. [redacted].
The first redaction to paragraph 31 merely describes that the Noumi Copy document is a copy, and that it was forwarded by the sender of FFG.150.004.0016. For the reasons I have already given in respect of the redactions to paragraphs 29 and 30 of the Tab 1 Examples, I am not satisfied that this information is confidential or privileged.
The second redaction to paragraph 31 describes the title of the document and explains the significance of the title having regard to PwC’s administrative practices that Ms Turner describes in paragraph 106(a) of Turner 7.

However, I am satisfied that certain statements in the correspondence with Ashurst and ABL do attract privilege, as they reveal the nature of the advice sought by Noumi and the services intended to be provided to it. Accordingly, the engagement correspondence ought to be disclosed, subject to redactions of their privileged content.

F.4.1 Ashurst engagement letter

I am satisfied that the following aspects of the Ashurst engagement letter are privileged and ought to be redacted:
(a)the dot points under the heading ‘What you have asked us to do’ set out the scope of the work requested of Ashurst and thereby reveal the nature and advice sought by Noumi. However, the first sentence under this heading reveals the broad topic of advice in a manner consistent with that which is disclosed in Turner 7.[116] This is not confidential, and should not be redacted; and
(b)the content under the heading ‘Estimate of fees and expenses’ commencing after the phrase ‘work which may range from…’ until the end of that paragraph. This reveals legal advice on possible steps and outcomes in connection with Ashurst’s retainer, and an associated fee estimate.
[116]See above in Part D.1.1 above regarding the redactions to Paragraph 51 of Turner 7.
Subject to these redactions, I am not satisfied that the balance of the letter is privileged, and it should be disclosed to the plaintiffs.

F.4.2 ABL work proposal

I am satisfied that the following parts of ABL’s work proposal are privileged and ought to be redacted:
(a)paragraphs 1 to 7 under the heading ‘Background – Scope of proposed engagement’ of the ABL Work Proposal, as they reveal the scope of the legal advice sought by Noumi and related instructions. Whilst the subject line of the letter refers to a topic of legal advice, the fact that ABL was retained in respect of this topic is openly referred to in paragraph 48(e) of Turner 7 and is not confidential. Accordingly, there is no need for the subject line of the letter to be redacted;
(b)paragraphs 11 and 12 under the heading ‘ABL proposal’, as they contain information about ABL’s previous engagements from which one may infer the nature and scope of the legal advice sought by Noumi. Paragraph 10 also addresses ABL’s previous engagements. However, the information disclosed therein is at a level of generality that I am not satisfied that the reader may infer from it the nature and content of the legal advice sought or obtained by Noumi; and
(c)paragraph 13 should be partially redacted to the extent that it reveals confidential topics of legal advice. That is, the last two words of paragraph 13(a); the last six words of paragraph 13(b), and the three words after ‘advise on’, and the last five words of paragraph 13(c) should be redacted.
Subject to these redactions, I am not satisfied that the balance of the letter is privileged, and it should be disclosed to the plaintiffs.

F.4.3 ABL capital raising engagement letter

I am satisfied that the following parts of the ABL’s engagement letter are privileged and ought to be redacted:
(a)on the first page of the letter, under the heading ‘Scope of Instructions’, the part that continues after ‘a proposed capital raising by FFGL’ until the end of the page should be redacted because it sets out the scope of legal advice sought.[117] The topic of advice ‘capital raising’ should not be redacted because it has already been disclosed in Turner 7;[118]
(b)at the top of the second page of the letter,[119] the words after the phrase ‘$50,000 per month’ until the end of the paragraph should be redacted as they reveal information as to the scope and timing of the capital raising, from which legal advice may be inferred; and
(c)the table on the second and third pages of the letter,[120] save for the column headings ‘work stream’ and ‘description of scope of work and key assumptions’. The information contained in this table should be redacted as it outlines the scope of work to be conducted by ABL, and matters of legal strategy and instructions.
[117]Turner 7, JYT-5, Tab 11, 69.
[118]Turner 7, [71].
[119]Turner 7, JYT-5, Tab 11, 70.
[120]Ibid 70-71.
Subject to these redactions, I am not satisfied that the balance of the letter is privileged, and it should be disclosed to the plaintiffs.

F.4.4 ABL Blue Diamond engagement letter

I am satisfied that the following parts of the ABL Blue Diamond engagement letter are privileged and ought to be redacted:
(a)on the first page of the letter, under the heading ‘Scope of Instructions’, the part that continues after ‘United States of America and…’ until the end of that section should be redacted.[121] It sets out the details of the instructions and the scope of legal advice sought. The references to the fact that the engagement concerns a dispute concerning a 2011 Licence Agreement with Blue Diamond do not require redaction, as they do not provide any information beyond that which is disclosed in Turner 7;[122] and
(b)the first two paragraphs under the heading ‘Costs awarded by a Court’ should be redacted because they record legal advice.
[121]That is, leaving the section headed “Basis on which we will charge” unredacted.
[122]Turner 7, [73].
Subject to these redactions, I am not satisfied that the balance of the letter is privileged, and it should be disclosed to the plaintiffs.

F.4.5 Sullivan & Cromwell LLP engagement letter

I am not satisfied that the Sullivan and Cromwell LLP letter is privileged from production. The letter contains standard retainer terms and does not reveal the nature or substance of any advice sought by or given to Noumi. The letter sets out a brief description of the scope of services to be provided. However, this is described in almost the same terms as described in paragraphs 75 and 76 of Turner 7. Accordingly, it is not necessary for any part of this letter to be redacted on the grounds of privilege.

F.5 Ashurst – PwC engagement letter

Noumi claims privilege in the Ashurst-PwC engagement letter on the basis that it is a communication between Ashurst and PwC made for the dominant purpose of Noumi seeking and obtaining legal advice from Ashurst and/or professional legal services in connection with a proceeding to which Noumi may be a party.[123] That is, the claim is made under both the advice and litigation limits of legal professional privilege. However, Noumi’s written submissions only refer to a claim of litigation privilege.[124]
[123]Redactions List, item 44.
[124]Noumi’s submissions filed on 4 May 2023, 32 [87].
Noumi argued that as the purpose of PwC’s retainer was a privileged purpose, that the retainer letter was therefore sent for the dominant purpose of Noumi being provided with professional legal services.
It is a matter in issue between the parties as to whether the retainer by Ashurst of PwC was for a privileged purpose, and therefore whether Noumi may maintain a claim for privilege in the Category 10 documents. This ruling does not address these questions. They will be addressed in a subsequent ruling following disclosure to the plaintiffs in accordance with this ruling.
The authorities relating to privilege in retainer letters between lawyers and clients apply equally to retainer letters between lawyers and third parties engaged by them, such as the Ashurst-PwC retainer. Regard must be had to the purpose of the retainer letter, and if it is for multiple purposes and the privilege purpose does not predominate, it will not attract privilege. If the letter is not privileged in its entirety, regard must be had to whether any statements within it are privileged, and ought to be redacted.
I do not accept Noumi’s argument that the dominant purpose of the letter was for the purpose of providing Noumi with legal advice or services in connection with anticipated litigation. Like the solicitor retainer letters referred to above, in addition to any privileged purposes, the purpose of the letter is to identify the obligations between the two parties, the manner in which PwC will charge its fees, the personnel who will work on the engagement, and PwC’s standard terms of business. These are not purposes which attract privilege.
Page two of the letter sets out the scope of work to be undertaken.[125] It identifies key areas of concern which will be investigated, and the services to be provided in relation thereto. To the extent that the Court finds the retainer of PwC by Ashurst to be for the dominant purpose of Noumi being provided with legal advice or legal services in connection with anticipated proceedings, the scope of works will reveal the nature and substance of the services sought, and will thereby be privileged. Accordingly, it is appropriate for this information to be redacted pending determination Noumi’s claim for privilege in the Category 10 documents.
[125]Turner 7, JYT-5, Tab 8, 44.
I am not satisfied that the balance of the contents of the Ashurst – PwC letter may be the subject of a claim for privilege. The letter does not otherwise reveal the nature or scope of services to be provided, and nor does it contain advice. Accordingly, the Ashurst – PwC letter ought to be disclosed to the plaintiffs, with the content on page two under the heading ‘(a) Scope of work’ redacted.

F.5.1 Offer to produce the Ashurst-PwC letter

Noumi offered to produce a copy of the Ashurst – PwC retainer to the plaintiffs’ solicitors and legal counsel on confidential basis for limited purpose of conferral and this application, and on the condition that the disclosure would not constitute a waiver of any privilege Noumi has or may have in the retainer, or other documents or matters connected to it.[126] The offer was expressly on the basis that the plaintiffs agree not to argue that disclosure effected waiver, but that it would not constrain the plaintiffs from seeking to challenge Noumi’s claim for privilege in the letter or any other documents.[127]
[126]Letter from ABL dated 21 February 2023, [10] (Foley Affidavit (n 24) 186).
[127]Ibid. This offer is in like form to the undertakings proposed by counsel for the Australian Securities and Investments Commission in TerraCom Ltd v Australian Securities and Investments Commission (ASIC) [2022] FCA 745 in connection with an application to receive an unredacted copy of a report the subject of a challenged claim for privilege.
The plaintiffs’ initial response to this offer requested information including as to the purpose of the letter and the basis of Noumi’s claim for privilege in the letter.[128] Noumi refused to provide this information to the plaintiffs without the plaintiffs first agreeing that disclosure of the letter to them would not constitute waiver of privilege.[129] This is not an appropriate response to the plaintiffs’ request for information. Noumi ought to have disclosed to the plaintiffs the purpose of the letter and the basis upon which privilege is claimed in it. Such information is required to support a claim for privilege and disclosure of it would not have waived any privilege in the retainer letter.
[128]Letter from Slater & Gordon dated 21 February 2023, [13] (Turner 7, JYT-4, Tab 4, 221).
[129]Letter from ABL dated 31 March 2023, [8] (Turner 7, JYT-4, Tab 1, 207).
In the oral ruling delivered on 20 April 2023, the plaintiffs were invited to accept Noumi’s offer to disclose the Ashurst–PwC letter to their counsel and solicitors.[130] The ruling noted that this would provide a practical and sensible way to safeguard procedural fairness.[131]
[130]Transcript of Proceedings, Gehrke, Nicholas John vs Noumi Limited (Supreme Court of Victoria, S ECI 2020 04505, Steffensen AsJ, 20 April 2023) 26-27 (‘Transcript 20 April 2023’).
[131]Ibid 27.
However, the plaintiffs rejected the offer on the basis that it would deprive the plaintiffs of advice regarding the engagement letter and would require the plaintiffs to ‘contract out’ of waiver of privilege, a position that the plaintiffs asserted ‘is ineffective at law’.[132]
[132]Letter from Slater and Gordon dated 5 May 2023, [7]. This letter was handed to the Court by the plaintiffs at the hearing on 8 May 2023.
The plaintiffs’ rejection of this offer proceeds on the assumption that the plaintiffs’ solicitors and counsel would not be able to act in a manner consistent with their duties or provide advice to their clients in connection with the retainer letter, without disclosing its contents to them. I do not accept that this would necessarily be the case. It is not unusual for confidential documents to be provided to a party’s legal team on the basis that their contents are not disclosed to the party for whom they act. It is not apparent to me why this retainer letter would cause any issues for the plaintiffs’ legal team to comply with their duties and provide advice to their clients. Further, it appears that the plaintiffs have briefed a separate counsel team for this application who are not otherwise briefed in the proceeding. As noted in the 20 April 2023 ruling, this arrangement should serve to ameliorate concerns the plaintiffs or Noumi may have with respect to access to the confidential information. [133]
[133]Transcript 20 April 2023, 27.
The plaintiffs do not articulate the basis upon which they say that provision of the retainer letter on an agreed ‘no waiver’ basis is ineffective at law. It may be that the plaintiffs are alluding to the fact that disclosure may effect an implied waiver of privilege in the retainer letter, notwithstanding this was not the subjective intention of the parties.[134] Noumi’s offer was on the basis that the plaintiffs agree not to make any argument that disclosure of the letter to them waived privilege. In light of this, the plaintiffs’ concern is difficult to understand. If there is a risk that a person other than the plaintiffs might argue that disclosure in this circumstance would impliedly waive privilege, this is not the plaintiffs’ concern.
[134]See, e.g., Mann v Carnell (1999) 201 CLR 1, [29] (Gleeson CJ, Gaudron, Gummow and Callinan JJ); Spotless Group Ltd v Premier Building and Consulting Group Pty Ltd (2006) 16 VR 1, 11–12 [26]–[27] (Warren CJ agreeing at 2 [1]).
In any event, when analysing whether waiver is to be implied, regard is had to the basis upon which the privileged material is made available, and the terms of any express agreement, and limitations agreed upon with respect to its future use. In Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 2),[135] Bromberg J observed that privilege may not be waived in circumstances where a document is provided to an opponent where the basis upon which the material is made available is restricted so as to secure confidentiality.[136]
[135](2014) 312 ALR 403.
[136]Ibid 418 [74]–[75].
In light of this, the plaintiffs may consider whether it is now appropriate to accept Noumi’s offer to provide the engagement correspondence to them on the conditional basis set out in ABL’s letter dated 21 February 2023. If this offer is refused, I will invite the parties to make submissions as to what inference, if any, the Court ought to draw from the plaintiffs’ conduct.

G Conclusion and next steps

G.1 Further revised Turner 7 & revised written submissions

In light of this ruling, it is necessary for Noumi to file and serve a further revised version of Turner 7.
Noumi’s written submissions also contain redactions. Some of the redactions mirror those made to Turner 7.[137] Accordingly, it is necessary for Noumi to prepare revised versions of its submissions in light of this ruling to disclose previously redacted material.
[137]For example, Noumi’s submissions filed on 4 May 2023 at [74], [76], [77], [80], [82], [84], [85], [91], [97(b)], [99], [118], [124], [131], [139], [141]; and Noumi’s reply submissions filed on 16 May 2023 at [37], [54(a)(i) and (ii)], [54(c)(ii)],[54(d)(i) and (ii)], [59(b)], [59(b)(i)], [59(b)(iii)].
Other redactions to Noumi’s written submissions quote from, or otherwise disclose, the contents of documents over which privilege is claimed.[138] In respect of most of these redactions, it is apparent to the plaintiffs which document is being described or quoted from. However for some redactions it is not possible for the plaintiffs to ascertain what the topic of the submission is, or even the document to which the submission relates.[139]
[138]For example, Noumi’s submissions filed on 4 May 2023 at [75], [88], [89], [108], [111], [114], [115], [117], [125], [128], [129].
[139]For example, Noumi’s redacted submissions filed on 4 May 2023 at [89], which is entirely redacted.
Whilst I do not doubt that Noumi prepared its submissions in this way with a view to assisting the Court by providing the information in a convenient fashion, it has given rise to unnecessary unfairness to the plaintiffs. Further, to the extent that the content of documents on the Privileged List are disclosed, the submissions have been prepared on the basis that it is appropriate for the Court to inspect the documents over which privilege is claimed, despite the plaintiffs’ objection to this course in respect of the Category 10 documents.
Thus, it is appropriate for Noumi to file revised submissions in an unredacted form. Upon receipt of notification of the Court’s decision as to whether it is appropriate to exercise its discretion to inspect the Category 10 Documents, submissions addressing the sample documents may be prepared in a redacted form so as to ensure that the contents of the Category 10 sample documents remain confidential pending the Court’s determination as to whether it is satisfied that Noumi has established that they are privileged.

G.2 Non-Category 10 documents

With respect to the Non-Category 10 documents, for reasons that I will address in a subsequent ruling, I am satisfied that Noumi has adduced evidence which prima facie establishes its claim for privilege in the Non-Category 10 documents. Accordingly, I am of the view that should it be necessary, it is appropriate for the Court to exercise its discretion to inspect the Non-Category 10 documents in order to test and scrutinise Noumi’s privilege claim.
So as to enable the plaintiffs to make any further submission they wish following disclosure of the previously redacted parts of Turner 7 in accordance with this ruling, I have not yet inspected any Non-Category 10 Documents, nor made any determination as to whether Tab 1 Example documents are privileged.
However, it may not be necessary for the Court to inspect Non-Category 10 Documents or make a determination with respect to the Non-Category 10 Documents. This is because it is not clear whether the plaintiffs maintain their challenge to Noumi’s claim for privilege in these documents. The plaintiffs have not addressed the Non-Category 10 Documents in their written or oral submissions in any detail, apart from criticising Ms Turner’s review process for both Non-Category 10 and Category 10 Documents as ‘inadequate’.[140] In light of this, I will direct that the plaintiffs clarify whether they maintain their challenge to Noumi’s claim for privilege in these documents, and if so, the grounds of that challenge.
[140]Plaintiffs’ submissions filed on 3 May 2023, [3.18].
If the challenge is maintained, subject to receipt of any further evidence or submissions from the plaintiffs arising from the disclosure of the previously redacted evidence in Turner 7 that addresses the non-Category 10 documents, the Court will quickly proceed to inspect the Non-Category 10 sample documents and determine whether to uphold Noumi’s claim for privilege in them.
If the challenge is not maintained the plaintiffs are required to inform Noumi and the Court of this as soon as possible, so that consequential orders may be made.

G.3 Category 10 Documents

With respect to the Category 10 documents, the plaintiffs oppose curial inspection of the documents on the basis that the evidence adduced is not sufficient to sustain a claim for privilege. I have not yet determined whether to inspect these documents, and it would not be appropriate to do so until the Court receives any further materials from the plaintiffs following delivery of this ruling and consequent disclosure to the plaintiffs of previously redacted parts of Turner 7, and any evidence or submissions in reply from Noumi.
The parties’ further evidence and submissions should be confined to matters arising from the disclosure of the previously redacted parts of Turner 7 and exchanged as soon as possible. It will be of assistance if further submissions are focussed upon the purpose of the engagement of PwC, the function it was engaged to perform, any overlap between the accounting advice provided by Ms Careny’s team and the forensic work undertaken by Ms Michie’s team, and whether the forensic accounting advice was required by Noumi in any event, regardless of the legal advice sought from Ashurst.
Most of the Category 10 documents are what Ms Turner describes as ‘Noumi Copy Documents’. Noumi says that these are copies of Noumi’s own documents that were made for the dominant purpose of Noumi’s engagement of Ashurst, and Ashurst’s engagement of PwC. Noumi has submitted that it has or will discover the original versions of the Noumi Copy Documents in the course of its usual discovery obligations, subject to any of the original documents being the subject of a claim for privilege in the hands of Noumi.[141] I will direct that Noumi file evidence confirming that it has completed its discovery of the originals of the Noumi Copy Documents.
[141]Noumi’s submissions filed on 4 May 2023, [3].
In light of the plaintiffs’ access to the original versions of the Noumi Copy Documents, the parties are requested to provide submissions which address the forensic significance of the Noumi Copy Documents in light of the matters in issue on the pleadings, and whether it is appropriate for the Court to make an order under s 55(2)(b) of the Civil Procedure Act2010 relieving Noumi of the obligation to make discovery of the additional versions of the Noumi Copy Documents.

G.4 Orders arising from this ruling

I will make orders requiring:
(a)Noumi to file and serve a further revised version of Turner 7 prepared in accordance with the terms of this ruling, together with revised, unredacted, versions of Noumi’s written submissions filed on 4 May 2023 and 16 May 2023;
(b)the plaintiffs to file any further evidence and submissions in light of the revised version of Turner 7 produced to it; and
(c)Noumi to file any evidence and submissions solely in the nature of reply, together with evidence as to compliance with its discovery obligations with respect to the originals of the Noumi Copy Documents.
The parties’ submissions should address the matters referred to in paragraph 266, (if the plaintiffs do not agree to receive the Ashurst – PwC engagement letter on a conditional basis), paragraph 274 (if the plaintiffs’ maintain their objection to the Non-Category 10 Documents), and paragraphs 278 - 280 above (regarding the Category 10 Documents).
Should it be required by the Court or requested by the parties, a further, short hearing may be listed. Subject to any submissions by the parties as to the appropriate course, the Court will shortly thereafter determine whether it is appropriate to exercise its discretion to inspect the Category 10 Documents, and if so, a further hearing may be listed to enable the parties to address Noumi’s claim for privilege in the sample Category 10 documents.
The parties are directed to confer with respect to the form of orders arising from this ruling. The matter is listed for directions on 19 December 2023 at 10:30 am to address the orders to be made.

SCHEDULE OF PARTIES

S ECI 2020 04505
BETWEEN:
NICHOLAS JOHN GEHRKE	First Plaintiff
LESTER BUCH	Second Plaintiff
- v -
NOUMI LIMITED (FORMERLY FREEDOM FOODS GROUP LIMITED (ACN 002 814 235))	First Defendant
DELOITTE TOUCHE TOHMATSU (A FIRM) (ABN 74 490 121 060)	Second Defendant and Plaintiff by Counterclaim
NOUMI LIMITED (FORMERLY FREEDOM FOODS GROUP LIMITED (ACN 002 814 235))	Defendant by Counterclaim

Annexure
Summary of Ruling on Redactions to Turner 7

Redactions List Item No.	Part of Turner 7	Summary of Ruling
Body of Turner 7
1.	Paragraph 51(a)	Not privileged. Redaction to be removed.
2.	Paragraph 51(b)	Not privileged. Redaction to be removed.
3.	Paragraph 53(c)	Not privileged. Redaction to be removed.
4.	Paragraph 55(a)	Not privileged. Redaction to be removed.
5.	Paragraph 58(b)	Not privileged. Redaction to be removed.
6.	Paragraph 59	Not privileged. Redaction to be removed.
7.	Paragraph 60(a), (b)	Privileged. Redaction to remain.
8.	Paragraph 60(f), (g)	Not privileged. Redaction to be removed.
9.	Paragraph 61	Not privileged. Redaction to be removed.
10.	Paragraph 62	Not privileged. Redaction to be removed.
11.	Paragraph 71	No ruling required. Redaction removed by Noumi.
12.	Paragraph 74(a), (b)	Not privileged. Redaction to be removed.
13.	Paragraph 91	Not privileged. Redaction to be removed.
14.	Paragraph 102(b)(i)(A)	Not privileged. Redaction to be removed.
15.	Paragraph 106(a)	Not privileged. Redaction to be removed.
Tab 1 of Exhibit JYT-5 to Turner 7
17.	Paragraph 2	Not privileged. Redaction to be removed.
18.	Paragraph 3	Not privileged. Redaction to be removed.
19.	Paragraph 4	Redaction to remain until Noumi’s claim for privilege in FFG.302.001.0085 is determined.
20.	Paragraph 6	Not privileged. Redaction to be removed.
21.	Paragraph 7	Not privileged. Redaction to be removed.
22.	Paragraph 8	Not privileged. Redaction to be removed.
23.	Paragraphs 9 & 10	Not privileged. Redaction to be removed.
24.	Paragraph 11	Not privileged. Redaction to be removed.
25.	Paragraph 13	No ruling required. No redaction is made to this paragraph
26.	Paragraph 14	First redaction – Not privileged. Redaction to be removed. Second redaction – Redaction to remain until Noumi’s claim for privilege in FFG.302.005.0106 is determined.
27.	Paragraph 15	Not privileged. Redaction to be removed.
28.	Paragraph 18	No ruling required. Redaction removed by Noumi.
29.	Paragraph 20	Not privileged. Redaction to be removed.
30.	Paragraph 21	Not privileged. Redaction to be removed.
31.	Paragraph 22	Not privileged. Redaction to be removed.
32.	Paragraph 24 & 25	Not privileged. Redaction to be removed.
33.	Paragraph 26	Not privileged. Redaction to be removed.
34.	Paragraph 27	Not privileged. Redaction to be removed.
35(a).	Paragraph 29	First redaction – Not privileged. Redaction to be removed. Second redaction – Only the following parts to remain redacted until Noumi’s claim for privilege in FFG.150.004.0016 is determined: · the word after “comprising” until the end of that sentence; and · the words between “relating to” and before “is one” in the final sentence. The balance of the second redaction to be removed.
35(b).	Paragraph 30	Not privileged. Redaction to be removed.
35(c).	Paragraph 31	Not privileged. Redaction to be removed.
36.	Paragraph 32	Not privileged. Redaction to be removed.
37.	Paragraph 33	Redaction to remain until Noumi’s claim for privilege in FFG.150.007.0428 is determined.
38.	Paragraph 34	Not privileged. Redaction to be removed.
39.	Paragraph 35	Redaction to remain until Noumi’s claim for privilege in FFG.150.007.0997 is determined.
40.	Paragraph 36	Not privileged. Redaction to be removed.
41(a).	Paragraph 37	First redaction - Redaction to remain until Noumi’s claim for privilege in FFG.150.006.0473 is determined. Second redaction - Not privileged. Redaction to be removed.
41(b).	Paragraph 39	Only the last seven words of the first sentence of paragraph 39 to remain redacted until Noumi’s claim for privilege in FFG.150.006.0220 is determined. Balance of the redaction to be removed.
41(c).	Paragraph 40	First redaction – redaction to remain until Noumi’s claim for privilege in FFG.150.006.0011 is determined. Second redaction – Not privileged. Redaction to be removed.
41(d).	Paragraph 41	Redaction to remain until Noumi’s claim for privilege in FFG.150.006.0150 is determined.
41(e).	Paragraph 42	Only the words after “relating to” to remain redacted until Noumi’s claim for privilege in FFG.150.006.0154 is determined. Balance of the redaction to be removed.
42.	Paragraph 44	Only the words between “conducted with” and “notes of that meeting” to remain redacted until Noumi’s claim for privilege in FFG.150.006.0976 is determined. Balance of the redaction to be removed.
Engagement Correspondence
43.	Tab 5 of JYT-5 Ashurst Engagement Letter	Only the following parts to remain redacted: · Page 1 - the dot points under the heading “What you have asked us to do”; and · Page 2 - under the heading “Estimate of fees and expenses” commencing after the phrase “work which may range from…” until the end of that paragraph. Balance of the redactions to be removed.
44.	Tab 8 of JYT-5 Ashurst – PwC Engagement Letter	Only the content on Page 2 under the heading “(a) Scope of work” to remain redacted until Noumi’s claim for privilege in the Category 10 documents is determined. Balance of the redaction to be removed.
45.	Tab 10 of JYT-5 ABL work proposal	Only the following parts to remain redacted: · paragraphs 1 to 7, 11 and 12, · paragraph 13(a) – last two words only; · paragraph 13(b) - the last six words only; and · paragraph 13(c) - the three words after “advise on”; and the last five words. Balance of the redaction to be removed.
46.	Tab 11 of JYT-5 ABL capital raising engagement letter	Only the following parts to remain redacted: · page 1, under the heading “Scope of Instructions”, the part that continues after “a proposed capital raising by FFGL” until the end of the page; · page 2 - the words after the phrase “$50,000 per month” until the end of the paragraph; and · the table on pages 2 and 3, other than the column headings “work stream” and “description of scope of work and key assumptions”. Balance of the redaction to be removed.
47.	Tab 12 of JYT-5 ABL Blue Diamond engagement letter	Only the following parts to remain redacted: · page 1, under the heading “Scope of Instructions”, the part that continues after “United States of America and…” until the end of that section; and · page 2, the first two paragraphs under the heading “Costs awarded by a Court”. Balance of the redaction to be removed.
48.	Tab 13 of JYT-5 Sullivan & Cromwell LLP engagement letter	Not privileged. Redaction to be removed.

[2023] VSC 742

12 December 2023