IOOF Holdings Ltd v Maurice Blackburn Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S ECI 2015 000452

IOOF HOLDINGS LTD (ACN 100 103 722) & ANOR	Plaintiffs
v
MAURICE BLACKBURN PTY LTD (ABN 21 105 657 949) (TRADING AS MAURICE BLACKBURN LAWYERS) & ANOR	Defendants

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	31 MAY, 1, 2, 6 JUNE 2016
DATE OF JUDGMENT:	25 AUGUST 2016
CASE MAY BE CITED AS:	IOOF HOLDINGS LTD v MAURICE BLACKBURN PTY LTD
MEDIUM NEUTRAL CITATION:	[2016] VSC 311

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PRACTICE AND PROCEDURE – Discovery – Legal professional privilege – Advice privilege – Litigation privilege – Dominant purpose – “Client” – Whether litigation anticipated – Class action – Investigation by solicitors before and after relationships with a client – Law firm as client – Earlier proceeding – Report by expert concerning some allegations in earlier proceeding – Voluntary confidential disclosure – Involuntary general publication – Compulsory discovery in this proceeding – Waiver – Inconsistent conduct –Communications concerning funding agreement with solicitors and internally – Funder – Legal advice to funder without formal retainer – Evidence Act 2008 (Vic), ss 117, 118, 119, 122, 126, 133.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J Peters QC with Mr S Senathirajah, Mr B Holmes	King & Wood Mallesons
For the First Defendant	Mr R Attiwill QC with Ms F Forsyth	Maurice Blackburn Lawyers
For the Second Defendant	Mr D Studdy SC with Ms S Gory	Webb Henderson

TABLE OF CONTENTS

A.. Introduction................................................................................................................................... 1

B.. The pleadings............................................................................................................................... 1

C.. Further background..................................................................................................................... 2

D.. Relevant provisions and principles........................................................................................ 11

E... The privilege claims and the challenges................................................................................ 17

E.1... IOOF’s documents............................................................................................................. 17
E.2... Maurice Blackburn’s documents..................................................................................... 25
E.3... Harbour’s documents....................................................................................................... 35

F... The rulings.................................................................................................................................. 38

F.1... IOOF’s documents............................................................................................................. 38
F.1.1... Categories 1 to 4..................................................................................................... 38
F.1.2... Categories 5 to 8..................................................................................................... 42
F.1.3... Category 11............................................................................................................. 46

F.2... Maurice Blackburn’s documents..................................................................................... 46
F.2.1... Categories A to D................................................................................................... 46
F.2.2... Categories E to L.................................................................................................... 50
F.2.3... Category O.............................................................................................................. 57
F.2.4... Category R.............................................................................................................. 57
F.2.5... Matters concerning some of Maurice Blackburn’s evidence.......................... 58

F.3... Harbour’s documents....................................................................................................... 61

G.. Conclusion................................................................................................................................... 70

HIS HONOUR:

A. Introduction

Applications have been made to challenge claims for legal advice privilege and litigation privilege over documents discovered in this proceeding.

The first plaintiff, IOOF Holdings Ltd (“IOOF Holdings”), and the second plaintiff, IOOF Service Co Pty Ltd (“IOOF Service”)[1] (together, “IOOF”), are companies within the IOOF group of companies, whose business includes trading in securities. IOOF has its own internal investigations team, which monitors and investigates the conduct of IOOF employees, or the conduct of third parties whose activities may affect IOOF’s business.
[1]IOOF Service is a wholly owned subsidiary of IOOF Holdings.

The first defendant, Maurice Blackburn Pty Ltd (“Maurice Blackburn”) conducts a legal practice. The second defendant, Harbour Litigation Funding Ltd (“Harbour”) is a litigation investment advisory company that advises with respect to investment funds of others. Harbour makes recommendations to the investment committee of certain other entities in what was described by Harbour’s senior counsel as “the group” (“the Investment Committee”).

IOOF challenged privilege claims made by each of Maurice Blackburn and Harbour (together, “the Defendants”). Further, Maurice Blackburn challenged privilege claims made by IOOF. No challenge was made by Harbour to any claims for privilege.

B. The pleadings

On 14 December 2015, IOOF commenced this proceeding against Maurice Blackburn and Harbour. IOOF allege the Defendants have received documents which contain information confidential to IOOF (“the IOOF Information”). Further, IOOF allege both the Defendants knew, suspected or ought reasonably to have known, that they had obtained the IOOF Information without IOOF’s authorisation or permission. IOOF seek orders requiring the Defendants to deliver up all relevant documents, together with interlocutory and permanent injunctions restraining the Defendants from using or disclosing the IOOF Information.

Speaking broadly, IOOF’s allegations are denied by Maurice Blackburn. Further, Maurice Blackburn alleges that any disclosure was in accordance with IOOF’s “Whistleblower Policy”. In short, Maurice Blackburn alleges the IOOF Information was disclosed for legitimate purposes; namely, reporting allegedly inappropriate, including unlawful, conduct with respect to IOOF’s affairs and business. Maurice Blackburn further alleges that certain documents containing the IOOF Information are in the public domain and any quality of confidence has been lost.

Harbour makes a series of admissions in its defence, including that it had no authorisation from IOOF to obtain or receive the IOOF Information. However, Harbour denies it knew, suspected or ought reasonably have known it had obtained confidential information, and denies it has caused IOOF any loss.

C. Further background

On 29 January 2015, a former employee of IOOF (“Employee A”) commenced a proceeding against IOOF,[2] by making an application to the Fair Work Commission seeking “an order to stop bullying” (“the Fair Work Proceeding”).[3] Employee A made serious allegations concerning the conduct of another employee of IOOF (“Employee H”), including involvement in insider trading and plagiarism.[4]
[2]The named respondent was IOOF Holdings.
[3]Affidavit of Andrew Paul Mesban Vine sworn 17 May 2016 (“Vine’s First Affidavit”), [13].
[4]Vine’s First Affidavit [13]-[14]; affidavit of Gary William Riordan sworn 17 May 2016 (“Riordan’s First Affidavit”), [45]-[50].

On 26 February 2015, certain directions were given by the Fair Work Commission. As a result of these directions, Employee A provided further particulars of his claim.

It was in the context of the Fair Work Proceeding that IOOF's general manager of legal, risk and compliance, Andrew Vine (“Vine”),[5] engaged PricewaterhouseCoopers (“Pricewaterhouse”)[6] in March 2015 (“the First Engagement”). Pursuant to the First Engagement, Pricewaterhouse was retained to gather and analyse certain information (such as transaction records of share trades and research reports) that was the subject of the Fair Work Proceeding.
[5]Vine became IOOF’s company secretary in December 2015. Vine is the second most senior lawyer employed at IOOF, and at all relevant times was responsible for the legal, risk and compliance functions of IOOF.
[6]The firm engaged by IOOF was PricewaterhouseCoopers (ABN 52 780 433 757).

On 27 March 2015, at a directions hearing, the Fair Work Commission made orders and directions, including the following:

There is a direct connection between the regulatory aspects of the alleged conduct [of Employee H] and it is appropriate that IOOF Holdings be permitted to have the investigation by [Pricewaterhouse] undertaken and finalised. The investigation will be relevant to its position, may be relevant to the Commission’s ultimate determination of the matter, but is not a substitute for the ultimate decision of the Commission on the alleged conduct.
(Emphasis added.)

IOOF Holdings sought that the Fair Work Proceeding be held in abeyance pending the outcome of the investigation by Pricewaterhouse. Employee A resisted this. It was directed that the Fair Work Proceeding should be assigned to a member to commence preparations to hear and determine the matter as the member considered appropriate. Liberty was also granted to IOOF Holdings to “seek that the arrangements leading to the determination of the [Fair Work Proceeding] contemplate the completion of the [proposed] investigation prior to the point of being required to file any submission or evidence”.

On 30 March 2015, Pricewaterhouse forwarded to IOOF Holdings a letter addressed to Vine entitled “Engagement Letter – Forensic Assistance”. The letter stated that Pricewaterhouse would provide forensic assistance to IOOF Holdings in investigating the allegations that had been made. More specifically, it was stated that IOOF wanted to investigate whether there was any evidence from the past 6 years that Employee H had engaged in insider trading, or plagiarised material in producing research reports.

In the letter, Pricewaterhouse stated that, depending on the results of the investigation, a formal report detailing the findings could be provided, which might include the preparation of a brief for referral to “law enforcement/regulator”.

Pricewaterhouse’s “Terms of Business” were attached, which included a term whereby the parties agreed not to disclose each other’s confidential information, except for disclosures required by law or confidential disclosures under the parties’ respective policies.

Vine accepted Pricewaterhouse’s offer on behalf of IOOF. In this proceeding, Vine swore that, in entering into the First Engagement on behalf of IOOF, his dominant purpose was to have material gathered that could then be used in the Fair Work Proceeding.[7]
[7]Vine’s First Affidavit, [23].

Pricewaterhouse’s written report in respect of the First Engagement (“the May Report”)[8] was provided to IOOF in approximately late May 2015, around the same time Employee A’s employment contract was terminated and the Fair Work Proceeding came to an end.[9] The May Report was not relied upon or produced in the Fair Work Proceeding.
[8]Vine’s First Affidavit, [31]-[32].
[9]The precise timing of these events was not clear on the evidence.

On Saturday 20 June 2015, the first of a number of articles was published in the press, reporting on matters concerning Employee A’s allegations. On 22 June 2015, IOOF Holdings’ share price fell from $10.66 to $9.24, and continued to fall for a further period of time.

At around this time, representatives of Maurice Blackburn, including 1 of its principals,[10] Brooke Dellavedova (“Dellavedova”), were in contact with Harbour’s senior director of litigation funding, Stephen O’Dowd (“O’Dowd”).[11] O’Dowd was visiting Australia for reasons independent of matters concerning IOOF. Representatives of Maurice Blackburn and Harbour met in Melbourne and Sydney between around 21 and 24 June 2015.
[10]The principals of Maurice Blackburn referred to in this judgment were all shareholders of Maurice Blackburn at all relevant times. IOOF invited the court to draw inferences based on the fact that the other principals, or at least the lead partner for class actions, were not called by Maurice Blackburn. Although inferences might be drawn in interlocutory privilege hearings from the absence of a witness (Re Southland Coal Pty Ltd (Receivers and Managers appointed) (in liquidation) (2006) 59 ACSR 87, 93 [14(j)] (Austin J) and the cases there cited), in my view further evidence from other principals of Maurice Blackburn was unnecessary and would have been likely to have been inconsistent with its overarching obligations under the Civil Procedure Act 2010 (Vic).
[11]O’Dowd is a lawyer based in London, and holds a current practising certificate. He has been a solicitor for 16 years.

On about 25 June 2015, Dellavedova was asked by the head of Maurice Blackburn’s “class actions department” to lead an investigation into a potential class action against IOOF by a class of IOOF Holdings’ shareholders (“the Potential Class Action”).[12] Dellavedova commenced the investigation shortly after this request.
[12]Affidavit of Brooke Wendy Dellavedova sworn 17 May 2016 (“the Dellavedova Affidavit”), [8].

On the morning of 25 June 2015, Dellavedova sent an email to O’Dowd stating she had been appointed to “oversee our work up of the potential matter against IOOF”. Dellavedova asked O’Dowd for details of Harbour’s selection process and timing requirements. One of the responses from Harbour included a non-disclosure agreement for execution by Maurice Blackburn. Harbour indicated the next meeting of the Investment Committee was scheduled for 16 July 2015.

On 26 June 2015, Dellavedova sent a “signed common interest and confidentiality agreement” to Harbour. Dellavedova noted that the agreement contemplated the applicant being “the party issuing the proceeding” but that “[f]or the time being” Maurice Blackburn had been named as the applicant. Dellavedova stated that if the matter proceeded, the plaintiff could sign an agreement as well.

On the same day, Harbour sent an email to Maurice Blackburn which attached, amongst other things, Harbour’s standard form funding agreement for Australia, its standard form relationship agreement and its “common interest and confidentiality deed”.

In late June 2015, O’Dowd asked Dellavedova to provide Harbour with a legal analysis of the prospects of success. From these discussions, O’Dowd understood, in addition to Harbour obtaining counsel’s advice, Maurice Blackburn itself would be providing legal advice on the merits of the Potential Class Action. At the time, Dellavedova did not consider there was a traditional client/lawyer relationship between Harbour and Maurice Blackburn. Dellavedova expected Harbour was taking its own advice. Dellavedova understood O’Dowd’s request was made so the legal analysis could be provided to the Investment Committee, so it could decide on whether Harbour would provide litigation funding.

The Dellavedova Affidavit states that, at the time she instructed others to assist her in preparing a memorandum to Harbour, Dellavedova “took as the starting point (and instructed others to take) the internal Maurice Blackburn legal analysis and documents already prepared for the purpose of determining whether a potential claim existed” (emphasis added). There was no suggestion that the documents being referred to, that were already in existence, were prepared to brief counsel.[13]
[13]However, no documents were identified by reference to Maurice Blackburn’s list. Maurice Blackburn will be directed to identify the documents referred to by Dellavedova in this context. See also pars 93 and 124-127 below.

In July 2015, Dellavedova continued to communicate with O’Dowd about the possibility of Harbour providing litigation funding.

On 7 July 2015, Maurice Blackburn provided a memorandum to Harbour on a confidential basis. This did not include any advice from counsel. The first draft of this memorandum, entitled “Potential Action Against [IOOF Holdings] – July 2015”, was dated 1 July 2015.

Although the exact timing is unclear, probably early in July 2015, Dellavedova became satisfied that a potential claim existed and that advice from counsel was warranted. The first of the documents identified by Dellavedova as being referable to briefing counsel is dated 1 July 2015. There is no specific evidence[14] that any internal working documents the product of her investigation had been created by Dellavedova to this point in time.[15]
[14]Cf par 25 above.
[15]Based on Maurice Blackburn’s list, there is 1 exception to this, namely document 34 which is dated 1 January 2015. However, this is plainly a date attributed by default in place of a specific date. I have inspected the document, the contents of which indicate it could not have been created until July 2015. Similarly, I was informed that the date of 1 January 2015 may have been given because of the absence of a specific date in 2015 (though I do note on the last page of the brief to counsel, before the annexures, the date “26 August 2015” appears).

Dellavedova instructed Maurice Blackburn employees to assist in preparing a brief to counsel to advise on the prospects of the Potential Class Action.

On 7 July 2015, Employee A’s allegations in the Fair Work Proceeding were the subject of questions before the Senate Standing Committee known as the Senate Economics References Committee (“the Standing Committee”). Before this Standing Committee hearing took place, not only had there been media coverage about the allegations,[16] but an investigation and a review had been carried out by the Australian Securities and Investments Commission (“ASIC”) and the Australian Prudential Regulation Authority (“the Prudential Authority”) respectively.[17] However, to this point in time, none of the published material included the Pricewaterhouse analysis the subject of the May Report, which had remained confidential.
[16]See par 18 above.
[17]Affidavit of Andrew Paul Mesban Vine sworn 27 May 2016 (“Vine’s Second Affidavit”), [16]. Also IOOF’s outline of reply submissions on privilege application filed 27 May 2016 (“IOOF Reply Submissions”), [23]-[30].

On 9 July 2015, the managing director of IOOF Holdings, Christopher Kelaher (“Kelaher”), wrote to the principal research officer of the Standing Committee. Kelaher referred to his own appearance before the Standing Committee on 7 July 2015, and suggested members of the Standing Committee had referred to IOOF’s confidential documents when asking questions. Kelaher suggested it would be unfair for the Standing Committee to rely on the contents of these documents and other materials obtained by the Standing Committee without first giving IOOF an opportunity to review the information and provide comment. Copies of all relevant documents and materials were sought.

In response, the principal research officer said he would pass on IOOF’s request to the Standing Committee. He also stated that the Standing Committee had requested a copy of the May Report, which had been referred to at the hearing on 7 July 2015. The research officer asked Kelaher to forward a copy of the May Report.

In providing the May Report, Kelaher stated in a covering letter that the May Report “contains information which is confidential to IOOF”.[18] A specific request was made that the Standing Committee treat the May Report as confidential and that it not make the May Report or its contents publicly available. Kelaher contemplated that the May Report might be utilised by the Standing Committee, but requested that it be tabled “in an ‘in camera’ sitting”. The covering letter did not expressly refer to the subject of privilege.
[18]Vine did not advise in relation to the contents of this letter as he was on leave.

Contrary to IOOF’s request for confidentiality to be maintained, on 31 July 2015 the contents of the May Report were published on the Standing Committee’s website.[19] Naturally, once the May Report had become public knowledge (except for the names that were redacted), the document lost the confidentiality necessary to maintain a claim for privilege.[20] Consequently, no privilege was claimed when the May Report was discovered in this proceeding by IOOF.[21]
[19]The May Report was published in full, except that the names of some of the persons referred to in the May Report were redacted.
[20]The need for confidentiality arises from the language used in both ss 118 and 119, and the definitions of “confidential communication” and “confidential document” in s 117. As to the extent of the confidentiality required with respect to maintaining a claim for litigation privilege, see Australian Securities and Investments Commission v Mining Projects Group Ltd (2007) 164 FCR 32, 42-43 [29]-[32], 43-44 [34] (Finkelstein J) and the cases there cited.
[21]A further hearing of the Standing Committee was held on 3 August 2015. What occurred at this hearing was not the subject of evidence. For completeness, the Hansard transcript of the hearing of 3 August 2015 is expressly referred to repeatedly in confidential schedule 2 to Maurice Blackburn’s defence, however this transcript was not before the court on these applications.

In late July 2015, Vine engaged Pricewaterhouse on behalf of IOOF to undertake further analysis of IOOF’s trading records and other data in respect of the allegations made by Employee A (“the Second Engagement”).[22] There were also 2 other matters arising from the First Engagement that Vine directed to be the subject of the Second Engagement.
[22]Vine’s First Affidavit, [34]-[35].

Meanwhile, Maurice Blackburn was progressing with the investigation and analysis of the Potential Class Action. On 14 July 2015, Dellavedova and others from Maurice Blackburn held a telephone conference with Employee A. The following day, a brief was sent to counsel. Dellavedova agreed with the proposition put to her that, when Maurice Blackburn briefed counsel, it had already internally formed a positive view about the prospects of the Potential Class Action.

During the course of its work concerning IOOF, in around mid-July 2015, issues arose for Maurice Blackburn itself regarding confidentiality and other potential legal issues that may have arisen from its communications with Employee A (“the Confidentiality Issues”). Dellavedova and another principal instructed a Maurice Blackburn employee lawyer to undertake research and to report back on the Confidentiality Issues. The other principal involved also spoke with counsel on the subject matter.

On 16 July 2015, a meeting of the Investment Committee was held.[23] On the same day, the funding of the Potential Class Action was approved subject to certain conditions, including obtaining a positive opinion from counsel.[24]
[23]Affidavit of Stephen O’Dowd sworn 12 May 2016 (“the O’Dowd Affidavit”), [32].
[24]See fn 164 below.

From 25 June 2015 to 16 July 2015 (“the First Period”), Maurice Blackburn did not have a client who might have become a claimant with respect to the IOOF matters Dellavedova was investigating. On 17 July 2015, a principal of Maurice Blackburn, Jacob Varghese (“Varghese”), received oral instructions from a shareholder of IOOF (“the First Client”) for Maurice Blackburn to investigate the Potential Class Action on its behalf. The First Client, an institutional investor, had previously retained Maurice Blackburn in shareholder class actions, including before any proceeding had been commenced.[25]
[25]Affidavit of Jacob Isaac Noozhumurry Varghese affirmed 30 May 2016 (“Varghese’s First Affidavit”), [10]-[12].

To elaborate, in the morning on 17 July 2015, the First Client informed Varghese that, the First Client would check if it had purchased shares in IOOF Holdings in the relevant period before 20 June 2015, and, if it had, it would be likely that the First Client would want to participate in any shareholder class action to recover compensation. It appears the necessary checks were made by the First Client as, in the afternoon on 17 July 2015, Maurice Blackburn received instructions from the First Client to undertake an investigation to determine whether any class action proceeding could and should be issued against IOOF. During this discussion, reference was made to billing arrangements that would apply to work done. The likelihood of a litigation funder being involved was also discussed.

Immediately after receiving these instructions, Varghese informed Dellavedova and others at Maurice Blackburn that the First Client’s instructions had been received. No written retainer was entered into at this time. Further, no new file was created, as there was already a file in Maurice Blackburn’s management system for the Potential Class Action.

After receiving the First Client’s instructions, Dellavedova and others at Maurice Blackburn conducted work required to determine whether or not a proceeding should be commenced. Effectively, this was a continuation of work already performed. Dellavedova did not speak with, or write to, the First Client. Further, Dellavedova could not identify any document the subject of the claim for privilege on behalf of the First Client that was actually given to the First Client. It was not until 19 February 2016 that the First Client executed a written retainer with Maurice Blackburn in relation to the Potential Class Action, at which time the First Client also executed a funding agreement with Harbour.[26] Dellavedova understood from discussions with Varghese that the First Client did not expect to pay for all of the investigation work to be carried out.
[26]The retainer agreement had been sent by Maurice Blackburn to the First Client on 13 October 2015: Varghese’s First Affidavit, [19].

Between 17 July 2015 and 7 October 2015 (“the Second Period”), the First Client was the only prospective claimant with respect to the Potential Class Action who had retained Maurice Blackburn.

On 8 October 2015, Maurice Blackburn publicly announced that it was investigating the Potential Class Action.[27] At a press conference, Dellavedova stated that Maurice Blackburn had been speaking to a variety of people about the Potential Class Action and that Maurice Blackburn was “gauging [the] interest” of IOOF shareholders. At this time, Maurice Blackburn published an online registration portal. After 8 October 2015, clients in addition to the First Client registered their interest in the Potential Class Action with Maurice Blackburn (“the Further Clients”).
[27]Dellavedova Affidavit, [39].

On 13 October 2015, King & Wood Mallesons (retained by IOOF before late July 2015 to advise on matters relating to the allegations made by Employee A) sent a letter to Maurice Blackburn referring to previous media releases. The letter expressed concern that Maurice Blackburn had come into possession of the IOOF Information. Certain requests and demands were made on behalf of IOOF regarding the IOOF Information. Further correspondence was exchanged before the proceeding commenced.

D. Relevant provisions and principles

The following provisions of Divisions 1 and 4 of Part 3.10 of the Evidence Act 2008 (Vic) are relevant:

117 Definitions
(1) In this Division:
client includes the following:
(a)a person or body who engages a lawyer to provide legal services or who employs a lawyer[28] (including under a contract of service);
[28]This is a defined term: see s 117(1).

(b) an employee or agent of a client;
…

118     Legal advice
Evidence is not to be adduced[29] if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
[29]This section also applies to interlocutory hearings by reason of s 131A(1), which provides as follows:
(1)If:
(a)     a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1C or 3; and
(b)     the person objects to giving that information or providing that document,
the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.
(a)a confidential communication[30] made between the client and a lawyer; or
[30]This is a defined term: see s 117(1).
(b)a confidential communication made between 2 or more lawyers acting for the client; or
(c)the contents of a confidential document[31] (whether delivered or not) prepared by the client, lawyer or another person,
[31]Ibid.

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

119 Litigation
Evidence is not to be adduced[32] if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
[32]See fn 29 above.
(a)a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b)the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.[33]
[33]This is a defined term: see s 117(1).
…

122 Loss of client legal privilege: consent and related matters
…
(2)Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
(3)Without limiting subsection (2), a client or party is taken to have so acted if:
(a)the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
(b)the substance of the evidence has been disclosed with the express or implied consent of the client or party.

(4)The reference in subsection (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.
(5)A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because:
(a) the substance of the evidence has been disclosed:
(i)in the course of making a confidential communication or preparing a confidential document; or

(ii)       as a result of duress or deception; or
(iii)      under compulsion of law; or
(iv)      …
(b)of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or
(c)of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

…
126Loss of client legal privilege-related communications and documents
If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document.
…

133 Court may inspect etc. documents
If a question arises under this Part relating to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question.

The principles applicable to these types of applications are not controversial:

(1)The party claiming the privilege bears the onus. That onus will only be discharged if the party establishes facts from which the court may determine that the privilege is being properly claimed.[34]
[34]Powercor Australia Ltd v Perry (2011) 33 VR 548, 557 [42] (Warren CJ, Nettle and Tate JJA).
(2)“Purpose” in “dominant purpose” means the purpose which led to the creation of the document or the making of the communication.[35]
[35]Carnell v Mann (1998) 89 FCR 247, 253F (Higgins, Lehane and Weinberg JJ).
(3)The “dominant purpose” is the purpose which was the ruling, prevailing or most influential purpose[36] at the time the document was brought into existence.[37]
[36]Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404, 416.7 (Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ).
[37]Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 508.3 (Brennan CJ).
(4)There can be only 1 dominant purpose. If there are 2 purposes of equal weight, neither fits the description of a “dominant purpose”.[38]
[38]AWB Ltd v Cole (2006) 152 FCR 382, 411 [106] (Young J); AWB Ltd v Cole (No 5) (2006) 155 FCR 30, 45 [44(5)] (Young J).
(5)If a dominant purpose existed, that dominant purpose must be determined objectively, having regard to the evidence, the nature of the document and the parties’ submissions.[39] That said, evidence of the subjective purpose of the person making the communication or creating the document is relevant.[40]
(6)Ordinarily, the relevant purpose is that of the person who brings into existence the document which includes the privileged communication, but this will not always be the case.[41]
(7)As the test is directed towards the purpose of bringing the document into existence, a copy of a non-privileged document may be privileged.[42]
(8)The material relied upon by the person claiming privilege must be focused and specific. Formulaic and bare conclusory assertions are not sufficient.[43]
(9)With respect to advice privilege, in considering whether a communication is for the purposes of legal advice, the purposes must be construed broadly.[44] Although it does not extend to pure commercial advice, legal advice, in this context, includes any advice as to what should prudently and sensibly be done in the particular legal circumstances in which the client finds itself.[45]
(10)Further to subparagraph (9), a document created by a lawyer that records her or his legal work carried out for the benefit of the client, such as a research memorandum, a summary of documents or a chronology, will be protected by privilege whether or not the document is provided to the client. Similarly, notes and other material created by the client that relate to the legal advice sought (whether or not actually communicated to the lawyer), or that relate to communications with the lawyer, may be privileged where such documents meet the relevant “dominant purpose” test.[46]
(11)With respect to litigation privilege, for a proceeding to be “anticipated or pending” for the purposes of s 119, there must be more than a mere possibility of litigation. As a general rule, there must be a real prospect of litigation, but it does not have to be more likely than not.[47]
(12)Many claims for privilege may be determined by the court without the need to inspect the documents. Further, ordinarily, the court will not examine the documents if the party claiming privilege has not established a basis for the claim in an affidavit in support. However, in an appropriate case, the court may examine the documents to make a decision about privilege, particularly where the parties agree to this course.[48]
(13)A law firm or a company may be a “client” if it engages or employs its own employee lawyer,[49] but privilege will only attach to the relevant communication or document if the employee is consulted confidentially in her or his professional capacity, with the requisite degree of independence, in relation to a professional matter.[50]

[39]Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 225 ALR 266, 278 [30(3)] (Kenny J).

[40]Carter Holt Harvey Wood Products Australia Pty Ltd v Auspine Ltd [2008] VSCA 59, [2] (Maxwell P and Redlich JA).

[41]Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332, 338 [14] (Batt JA, with whom Charles and Callaway JJA agreed).

[42]Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 507.7–508.3, subject to an exception which is not presently relevant: 512.3 (Brennan CJ).

[43]Barnes v Commissioner of Taxation (Cth) (2007) 242 ALR 601, 605 [18] (Tamberlin, Stone and Siopis JJ); Grant v Downs (1976) 135 CLR 674, 689.3 (Stephen, Mason and Murphy JJ).

[44]Balabel v Air India [1988] Ch 317, 330D-G (Taylor LJ, with whom Lord Donaldson MR and Parker LJ agreed), cited with approval in Workcover Authority (NSW) (General Manager) v Law Society (NSW) (2006) 65 NSWLR 502, 521 [77] (McColl JA, with whom Handley and Hodgson JJA agreed), and in DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151, 164 [38], 165 [45] (Allsop J).

[45]Ibid.

[46]AWB Ltd v Cole (No 5) (2006) 155 FCR 30, 46 [44(8)-(9)] (Young J) and the cases there cited.

[47]Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332, 341 [18]-[19] (Batt JA, with whom Charles and Callaway JJA agreed).

[48]Cf Bailey v Director-General, Department of Land and Water Conservation (2009) 74 NSWLR 333, 336 [2] (Allsop P, with whom Hodgson JA agreed); Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49, 70 [52] (Gleeson CJ, Gaudron and Gummow JJ).

[49]See s 117(1) definition of “client”, par (a), in par 46 above.

[50]Australian Hospital Care (Pindara) Pty Ltd v Duggan (No 2) [1999] VSC 131, [36] (Gillard J). See also Archer Capital 4A Pty Ltd v Sage Group plc (No 2) (2013) 306 ALR 384, 398-401 [59]-[73] (Wigney J); AWB Ltd v Cole (No 5) (2006) 155 FCR 30, 46 [44(10)] (Young J) and the cases there cited.

With respect to waiver of privilege, and s 122(2) of the Evidence Act, a person may be taken as acting inconsistently with maintaining privilege by reason of the following:

(1)Partial disclosure of communications or documents, while claiming privilege over the remainder.[51]
(2)A party making an assertion as part of its case that puts privileged communications or the contents of privileged documents in issue, or necessarily lays them open to scrutiny.[52]

Further, a waiver of advice privilege extends to the documents and information which were taken into account in formulating, or which otherwise underpinned or influenced, the legal advice no longer the subject of privilege.[53]

[51]Banksia Mortgages Ltd v Croker [2010] NSWSC 535, [35], [40] (Schmidt J).

[52]Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341, 361 [68] (Kenny, Stone and Edmonds JJ).

[53]AWB Ltd v Cole (No 5) (2006) 155 FCR 30, 85 [198] (Young J).

By agreement, all documents the subject of a privilege claim were produced to the court so that those documents might be inspected by the court if such an inspection assisted in determining the issue with respect to any document. Further, the parties provided a list of documents comprising examples in each category of documents of the opposing party that the court was specifically invited to inspect.

E. The privilege claims and the challenges

E.1 IOOF’s documents

IOOF has claimed privilege with respect to 12 categories of documents:[54]
[54]Transcript 129.7‑135.27.

(1)Categories 1 to 4 relate to the First Engagement. The privilege claimed is litigation privilege under s 119 of the Evidence Act. This is because the product of the First Engagement, including the information gathered, was claimed to be for the dominant purpose of assessing some of the allegations made by Employee A, and to prepare IOOF’s defence and evidence in the Fair Work Proceeding. This was also claimed to be the dominant purpose for related communications and documents concerning the First Engagement.[55] Additionally, IOOF alleged that another purpose of the material was that it formed “part of the factual or evidentiary basis” for Vine to provide legal advice to IOOF’s board and senior management.[56] These categories may be broadly described as follows:
[55]See par 16 above. See also IOOF Reply Submissions, [10]-[13].
[56]Vine’s First Affidavit, [24].
(a)Category 1, being emails and attached copy documents, relating to defining or agreeing the scope and terms of the First Engagement, and which were exchanged between Vine and Pricewaterhouse, or IOOF’s then company secretary and Pricewaterhouse.[57]
[57]Vine’s First Affidavit, [25]-[26]; Vine’s Second Affidavit, [7(a)]; IOOF’s list, numbers 160-163 and 183-188.
(b)Category 2, being emails and attached copy documents, which concerned requests from Pricewaterhouse for “documents and/or information required by [Pricewaterhouse] for the purpose of” the First Engagement.[58] The emails were primarily exchanged between Vine and Pricewaterhouse.
[58]Vine’s First Affidavit, [27]-[28]; Vine’s Second Affidavit, [7(b)]; IOOF’s list, numbers 164-182, 189-609 and 619-622.
(c)Category 3, being emails and attached copy documents, relating to Pricewaterhouse’s reports to Vine on the progress and findings of the First Engagement.[59] All these emails were sent between Vine and Pricewaterhouse.
[59]Vine’s First Affidavit, [29]-[30]; Vine’s Second Affidavit, [7(c)]; IOOF’s list, numbers 610-618, 623-636 and 646-651.
(d)Category 4, being emails and attached copy documents, exchanged between Vine and Pricewaterhouse from late April to late May 2015, to enable the finalisation of the May Report.[60]
[60]Vine’s First Affidavit, [31]-[32]; Vine’s Second Affidavit, [7(d)]; IOOF’s list, numbers 637-645 and 652-662.

(2)Categories 5 to 8 relate to the Second Engagement, which IOOF alleged was undertaken for the dominant purpose of enabling Vine and King & Wood Mallesons to provide legal advice to IOOF.[61] That advice was said to relate specifically to the inquiry by the Standing Committee, the investigation by ASIC and the review by the Prudential Authority. These various activities were all conducted after the Fair Work Proceeding, which concluded around the end of May 2015.[62] IOOF makes the claim for privilege in relation to these categories under s 118 of the Evidence Act,[63] as follows:
[61]Vine’s First Affidavit, [36]. Initially, Vine swore that the Second Engagement was to obtain an analysis to be used by Vine and King & Wood Mallesons “in providing legal advice and legal assistance” (emphasis added). In Vine’s Second Affidavit at [16], Vine was more specific and swore that the intended use was for the dominant purpose of the provision of legal advice: see pars 51(6), 70 and 74-76 below.
[62]See par 17 above.
[63]IOOF Reply Submissions, [25].
(a)Category 5, being emails and attached copy documents, which were sent to define and agree the scope and terms of the Second Engagement. The emails were exchanged between Vine and Pricewaterhouse.[64] One or more of these emails were copied to IOOF’s general counsel, Gary Riordan (“Riordan”),[65] and a partner at King & Wood Mallesons.
[64]Vine’s First Affidavit, [39]-[40]; Vine’s Second Affidavit, [7(e)]; IOOF’s list, numbers 665-681 and 722-723.
[65]Riordan has been employed by IOOF Service since 1 July 2006. He spends approximately 80 percent of his time performing the role of general counsel; the remainder of his time he acts as general manager for certain IOOF businesses. Riordan’s responsibilities as general counsel include IOOF’s internal investigation team, with which he has direct involvement, including providing related legal advice.
(b)Category 6, being emails and attached copy documents, exchanged between Vine and Pricewaterhouse from late August to mid-September 2015, relating to the provision by IOOF of documents or information required by Pricewaterhouse to undertake the Second Engagement.[66]
[66]Vine’s First Affidavit, [41]-[42]; Vine’s Second Affidavit, [7(f)]; IOOF’s list, numbers 682-696.
(c)Category 7, being emails, exchanged between Vine and Pricewaterhouse from mid-September to mid-October 2015 relating to the “progress and findings” of the Second Engagement.[67]
[67]Vine’s First Affidavit, [43]-[44]; IOOF’s list, numbers 697-704.
(d)Category 8, being emails and attached copy documents, exchanged between Vine and Pricewaterhouse from late October 2015 to early February 2016 relating to the provision by Pricewaterhouse of a draft report in respect of the Second Engagement.[68]
[68]Vine’s First Affidavit, [45]-[46]; Vine’s Second Affidavit, [7(g)]; IOOF’s list, numbers 705-721.

(3)Category 9 comprises documents relating to advice from 2 external lawyers from the law firm Hall & Wilcox in relation to the Fair Work Proceeding. Notwithstanding its earlier position, in written submissions filed 23 May 2016 (“the Maurice Blackburn Outline of Submissions”) Maurice Blackburn indicated the documents in this category were no longer the subject of challenge.[69]
(4)Categories 10 to 12 relate to 3 IOOF internal investigations:
(a)Category 10 comprises an email and an attached copy document, concerning an investigation into the conduct of an IOOF employee (“Employee B”).[70] The email was sent by an IOOF employee to IOOF’s head of investigations. The investigation had been requested by Riordan for the “dominant purpose, if not the sole purpose” of enabling Riordan to determine whether there had been unlawful conduct and to advise IOOF’s senior executives as to “what, if anything, needed to be done, as a matter of law, in response to this conduct”. Riordan reviewed and considered the attached information “at the time that [Riordan] provided legal advice to IOOF”.[71] In the Maurice Blackburn Outline of Submissions, Maurice Blackburn listed documents that it no longer sought to be produced as the challenge to the privilege claim was no longer pressed at this stage. This had the effect of excluding all documents in Category 10 from the present dispute.[72]
(b)Category 11 comprises approximately 70 documents, including emails, minutes, memorandums, statements, a spreadsheet, a handwritten note and a report from Riordan. A large number of these documents are copy documents, which were “attached and sent for the purpose of enabling [Riordan] to provide legal advice to IOOF’s senior executive team …”.[73] All the documents were generated between 31 December 2008 and late August 2009 and relate to an investigation commissioned and supervised by Riordan, concerning allegations of insider trading made against Employee H. Privilege was claimed under s 118. Riordan swore that he was the “recipient or sender of the vast majority of the communications and documents listed”[74] and that the other documents included in this category were said to be generated by others as part of the investigation, conducted by IOOF’s head of investigations, to enable Riordan to provide legal advice to IOOF.[75] In the Maurice Blackburn Outline of Submissions, most of the challenges to this claim were withdrawn.[76]
(c)Category 12 comprises approximately 25 documents, including emails, memorandums and statements relating to an investigation of another IOOF employee (“Employee Y”).[77] Thirteen of these documents are copy documents, which were “attached and sent for the purpose of enabling [Riordan] to provide legal advice to IOOF’s senior executive team …” regarding the Employee Y investigation. The documents were generated between early April and late May 2009. Riordan was either the recipient or sender of some of the communications and documents, and swore that he believed that the other documents included in this category “form[ed] part” of the investigations into Employee Y’s conduct by IOOF, all of which were for the dominant purpose of enabling Riordan to provide legal advice to IOOF.[78] It appears from the Maurice Blackburn Outline of Submissions that none of the challenges was maintained.[79]

[69]Paragraph 3(a).

[70]Affidavit of Gary William Riordan sworn 27 May 2016 (“Riordan’s Second Affidavit”), [5(a)]; IOOF’s list, numbers 29 and 30.

[71]Riordan’s First Affidavit, [38]-[44].

[72]Paragraph 3(c).

[73]Riordan lists 70 descriptions of documents, though some of these descriptions apply to 2 or more documents; IOOF’s list, numbers 1-28, 31-95, 98, 99, 102-113, 115-117, 121-124, 145, 155, 156 and 724: Riordan’s Second Affidavit, [5(b)].

[74]Riordan’s First Affidavit, [49(a)].

[75]See Riordan’s First Affidavit, [49(b)]. Riordan swore: “I believe that the documents were created for the purposes of the investigation, form part of the factual investigation undertaken by [IOOF’s head of investigations] to enable me to provide legal advice to IOOF and were ultimately communicated to me, used by me or considered by me in providing legal advice to IOOF.” Maurice Blackburn did not require Riordan to attend for cross-examination.

[76]Paragraphs 3(b) and (c). As to the remainder, see pars 80-81 below.

[77]Riordan lists 25 descriptions of documents, though some of these descriptions apply to 2 or more documents; IOOF’s list, numbers 96-97, 100-101, 114, 118-120 and 125-153. Document 154 of IOOF’s list is not referred to in any of IOOF’s categories the subject of affidavits filed by IOOF, despite it being the subject of a privilege claim according to IOOF’s list. It may be that this was an oversight given the volume of materials involved. I will invite IOOF’s counsel to address the court on whether this claim is maintained.

[78]Riordan’s First Affidavit, [54]. The basis of the belief is set out in the affidavit.

[79]Paragraph 3(b) and (c).

Maurice Blackburn challenged the claims for privilege on the following grounds:

(1)Maurice Blackburn submitted that the documents described in Categories 1 to 4 are not privileged on the basis that the May Report (which the documents in Categories 1 to 4 underlie) was not, itself, privileged.[80] This contention was partly based upon the fact that IOOF sought to hold the Fair Work Proceeding in “abeyance” while the May Report was being prepared.[81]
[80]Maurice Blackburn’s “6 key submissions in support of its challenge to IOOF’s claims of privilege” provided 2 June 2016 (“Maurice Blackburn Key Submissions”), [2].
[81]Maurice Blackburn Outline of Submissions, [35(a)].
(2)Even if these documents were originally privileged, Maurice Blackburn submitted that they should be produced in any event pursuant to s 122 of the Evidence Act (that is, either s 122 alone or s 122 in conjunction with s 126) as IOOF has acted inconsistently with the maintenance of its privilege claims.[82] This alleged inconsistency arises from the fact that IOOF has discovered the May Report in this proceeding without a claim for privilege and, therefore, it was submitted the substance of the content of these documents.[83] In particular, Maurice Blackburn focused on certain parts of the May Report, which refer to updates provided by Pricewaterhouse and to other materials received in compiling the May Report.
(3)Further, in relation to Category 1, Maurice Blackburn submitted that IOOF has acted inconsistently with its privilege claims by exhibiting the retainer letter for the First Engagement to Vine’s First Affidavit. This letter discloses the terms and scope of that engagement (being the subject of the documents in Category 1).[84] Maurice Blackburn also submitted that IOOF has put the scope and terms of the First Engagement in issue by relying on allegations regarding the First Engagement in order to make out its privilege claims.[85]
(4)Maurice Blackburn submitted that Categories 5 to 8 are not privileged under s 118 of the Evidence Act[86] as it contended no privilege attaches to communications between the client or lawyer and another person, and these documents solely comprise communications between IOOF and Pricewaterhouse.[87] Even if the documents were to fall within s 118(c) of the Evidence Act, Maurice Blackburn submitted that the evidence led by IOOF is inadequate to discharge its onus of making out their privilege claims.[88]
(5)As to Category 5, Maurice Blackburn again submitted that IOOF has acted inconsistently with its privilege claims over these documents.[89] This submission was put on the basis that not only did Vine’s First Affidavit refer to and exhibit an email which discussed the scope and terms of the Second Engagement (which is the subject of the documents in Category 5), but IOOF relied on the content of that email in order to establish the privileged nature of these documents.[90] Further, Maurice Blackburn alleged that IOOF has put the scope and terms of the retainer of the Second Engagement in issue. Maurice Blackburn alleged this occurred by IOOF asserting privilege over documents “on the basis that they were communications for the purpose of ‘undertaking [the] Second Engagement’, ‘reporting to [Vine] on the progress and findings of [the] Second Engagement’ and ‘preparing a draft written report in respect of the Second Engagement’” in order for IOOF to make out its privilege claims.[91] According to Maurice Blackburn, “[s]uch an assertion can only be made good if the scope and terms of the Second Engagement have a privileged purpose”, and that purpose must be tested by reference to the documents in Category 5.
(6)As to Category 8, Maurice Blackburn submitted that Vine gave evidence as to multiple purposes for the creation of those documents, being the provision of “legal advice and legal assistance”.[92] It submitted that this meant that the dominant purpose test has not been satisfied in respect of the documents in Category 8.[93] To the extent that Vine’s evidence changed in this regard,[94] Maurice Blackburn submitted that it should not be accepted.[95] Maurice Blackburn made further submissions regarding disclosure of the substance of the documents by the chairman of IOOF Holdings, however this was not pressed in closing submissions.[96]
(7)As to Category 11, Maurice Blackburn pressed for production of certain attachments to emails by way of the originals of those documents. As to 1 of those attachments, production was sought because it predated the instruction to commence the investigation which gave rise to the claims of privilege.[97]
(8)Generally, Maurice Blackburn pressed for production of a number of attachments to emails referred to in Vine’s First Affidavit. This was on the basis that Vine provided no evidence as to the purpose of the preparation of those documents, as opposed to the purpose for which they were attached to the relevant email.[98]

E.2 Maurice Blackburn’s documents

[82]Maurice Blackburn Outline of Submissions, [34(a)] and [35(b)].

[83]Maurice Blackburn Outline of Submissions, [35(b)]; Maurice Blackburn Key Submissions, [1].

[84]Maurice Blackburn Outline of Submissions, [34(b)]; Maurice Blackburn Key Submissions, [3].

[85]Maurice Blackburn Outline of Submissions, [34(d)].

[86]IOOF accepted that these documents were not privileged pursuant to s 119 of the Evidence Act: see IOOF Reply Submissions, [25].

[87]Maurice Blackburn Outline of Submissions, [37(c)].

[88]Maurice Blackburn Outline of Submissions, [37(d)-(i)].

[89]Maurice Blackburn Outline of Submissions, [36(a)].

[90]Maurice Blackburn Outline of Submissions, [36(b)-(c)]; Maurice Blackburn Key Submissions, [3].

[91]Maurice Blackburn Outline of Submissions, [36(e)].

[92]Maurice Blackburn Outline of Submissions, [37(j)]; Vine’s First Affidavit, [36].

[93]Maurice Blackburn Outline of Submissions, [37(j)].

[94]Vine’s Second Affidavit, [16]. See fn 61 above.

[95]Maurice Blackburn Key Submissions, [6].

[96]Transcript, 369.10.

[97]Maurice Blackburn Outline of Submissions, [41].

[98]Maurice Blackburn Outline of Submissions, [38]; Maurice Blackburn Key Submissions, [5].

Maurice Blackburn has claimed privilege with respect to the following categories of documents:[99]
[99]As will be apparent from the identification of the documents in the various categories, Dellavedova gave evidence that some documents came within more than 1 category. There was no challenge to this approach. However, more problematic is that Dellavedova also included documents in Maurice Blackburn’s list, numbers 22, 28, 165 and 556, in more than 1 time period: see fnn 102, 105, 107, 112, 113 and 135 below. A further explanation in this regard is required.

(1)Categories A to C include various documents created during the First Period, as part of preliminary investigations into the Potential Class Action. Maurice Blackburn alleged that some of the documents created during the First Period were prepared to brief counsel for the dominant purpose of Maurice Blackburn obtaining advice on the prospects of success of the Potential Class Action. Obviously, Maurice Blackburn could not fit within the description of a “client [that] is or may be, or was or might have been, a party” to an anticipated proceeding[100] with respect to the Potential Class Action. It therefore claimed that these documents are privileged to Maurice Blackburn pursuant to s 118 of the Evidence Act.[101] These documents may be described as:
[100]As those words are used in s 119.
[101]Maurice Blackburn outline of reply submissions filed 27 May 2016 (“the Maurice Blackburn Reply Submissions”), [16].

(a) Category A, being drafts and a final version of a brief to counsel.[102]
[102]Dellavedova Affidavit, [12]; Maurice Blackburn’s list, numbers 22, 126-130, 291 and 503. The document numbers provided in this judgment by reference to the Dellavedova Affidavit incorporate the corrections made by Dellavedova in a further affidavit sworn on 30 May 2016. Dellavedova swore that document 291 in Category A was created in July 2015. The document is described in Maurice Blackburn’s list as being dated 12 August 2015, however this may be a misdescription. The document itself is dated 15 July 2015. Maurice Blackburn will be asked to clarify this position.

(b) Category B, being an audio recording and versions of a file note taken by an employee lawyer of Maurice Blackburn of a telephone conference with Employee A in respect of allegations made by Employee A that related to the Potential Class Action.[103]

[103]Dellavedova Affidavit, [19]-[20]; Maurice Blackburn’s list, numbers 13, 54, 406 and 560.

(c) Category C, being a file note of a meeting of Maurice Blackburn employees, in which the investigation of the Potential Class Action was discussed, including the possibility of obtaining further information from Employee A.[104]
[104]Dellavedova Affidavit, [21]; Maurice Blackburn’s list, number 17.

(2)Category D consists of file notes, emails and research notes prepared during the First Period by lawyers of Maurice Blackburn, including a file note of a meeting between a principal of Maurice Blackburn and counsel.[105] Maurice Blackburn alleged that these documents recorded communications that were for the dominant purpose of Maurice Blackburn obtaining advice from a Maurice Blackburn employee lawyer in relation to the Confidentiality Issues. It therefore claimed that these documents are privileged to Maurice Blackburn pursuant to s 118 of the Evidence Act.
[105]Dellavedova Affidavit, [22]; Maurice Blackburn Reply Submissions, [26]-[27]; Maurice Blackburn’s list, numbers 14, 19, 21, 28, 38, 95, 213 and 558. Each of these documents has been inspected.
(3)During the Second Period, namely from 17 July 2015 (being the date on which the First Client first gave instructions to Maurice Blackburn), to 7 October 2015, further documents were created as part of investigations in relation to, and preparatory work for, the Potential Class Action. Maurice Blackburn claimed that these documents are privileged to the First Client.[106] Broadly, these documents fall into 4 categories:
[106]Maurice Blackburn Reply Submissions, [31] and [33].

(a) Category E, being briefs to, communications with and file notes of meetings with, counsel regarding preparatory work for the Potential Class Action.[107]
[107]Maurice Blackburn Reply Submissions, [36(a)]; Dellavedova Affidavit, [32(d)]; Maurice Blackburn’s list, numbers 6, 11, 18, 20, 22, 24, 34, 51, 92, 100-105, 107, 109, 113, 117, 131-135, 137-139, 143, 144, 147, 150-155, 158-165, 170-178, 216, 227, 230, 238, 239, 264, 269, 270, 297-302, 307-309, 311, 312, 318-321, 329-331, 343-346, 363, 416, 420-422, 424-431, 434-436, 438, 439, 452-457, 460-471, 477, 478, 482, 485-488, 498, 499, 525, 531, 538, 539, 546-548, 550, 551 and 557.

(b) Category F, being copies of a memorandum of advice from counsel regarding the prospects of success of the Potential Class Action and communications distributing that memorandum.[108]
[108]Maurice Blackburn Reply Submissions, [36(b)]; Dellavedova Affidavit, [33]; Maurice Blackburn’s list, numbers 5, 9, 35, 48, 148, 149, 187, 189, 241-244 and 508-510.

(c) Category G, being documents created by Maurice Blackburn employees[109] in relation to the prospects of success of, or in general preparation for, the Potential Class Action.[110] These documents comprise internal Maurice Blackburn communications, memorandums and other documents;[111] communications,[112] and file notes of discussions,[113] with Employee A; file notes of internal Maurice Blackburn meetings;[114] task lists;[115] and documents relating to document management,[116] internal documents regarding ongoing administration[117] and evidence gathering.[118]
[109]The employees included lawyers and “trainee solicitors”.
[110]Maurice Blackburn Reply Submissions, [36(c)].
[111]Dellavedova Affidavit, [32(a)]; Maurice Blackburn’s list, numbers 4, 7, 16, 31, 39-43, 49, 50, 55, 57-80, 82-91, 93, 125, 136, 138, 173, 176, 212, 215, 222-226, 265-269, 275-278, 292, 310, 314, 412-415, 417-419, 432, 433, 437, 438, 449-451, 489, 490, 492, 500-502, 504, 506, 511, 513, 514, 522-524 and 533-536.
[112]Dellavedova Affidavit, [32(e)]; Maurice Blackburn’s list, numbers 28-30, 81, 115, 235, 236, 249, 250, 251, 338-340, 380, 383, 385, 386, 389, 392, 393, 396, 399, 403-405 and 517.
[113]Dellavedova Affidavit, [32(b)]; Maurice Blackburn’s list, numbers 108, 112, 116, 259, 260, 367, 368, 409, 410, 443, 459 and 556.
[114]Dellavedova Affidavit, [32(c)]; Maurice Blackburn’s list, numbers 27, 28, 99, 110, 111, 114, 211, 214, 483 and 532.
[115]Dellavedova Affidavit, [32(h)]; Maurice Blackburn’s list, numbers 10, 15, 271, 441, 442 and 552.
[116]Dellavedova Affidavit, [32(f)]; Maurice Blackburn’s list, numbers 44-46, 52, 53, 274, 475, 479-481, 484, 491, 493, 494, 496, 497, 512, 518, 519 and 526-528.
[117]Dellavedova Affidavit, [32(i)]; Maurice Blackburn’s list, numbers 257, 325, 326, 520, 521, 529, 530 and 553.
[118]Dellavedova Affidavit, [32(g)]; Maurice Blackburn’s list, numbers 12, 139, 174, 177, 209, 217-221, 280-287, 289, 294, 295, 332, 333, 440 and 444.

(d) Category H, being communications (including drafts) between employees of Maurice Blackburn and Harbour in relation to advice on the prospects of success of, and the provision of litigation funding by Harbour for, the Potential Class Action.[119] These documents are in the possession of Maurice Blackburn. The claim for privilege with respect to some of these documents was made by Harbour.[120] (This is addressed section F.3 below.) As to the remaining documents, the claim is made on behalf of the First Client.[121]
[119]Dellavedova Affidavit, [14]-[17], [35(a)-(e)] and [37]; Maurice Blackburn’s list, numbers 3, 8, 106, 119, 140-142, 188, 192-200, 202-207, 231, 232, 290, 364 and 472-474. Dellavedova also included document 208 within the description of documents created for the dominant purpose of obtaining legal advice, though it was put in the somewhat elliptical terms of, “Document 208 contains [O’Dowd’s] request for an opinion from counsel”. While this is correct, it only represents a very minor part of the communication, namely, part of a sentence in an email that is a full page in length. Document 208 is a copy of an email chain also discovered by Harbour: see pars 54(1)(c) and 144-149 below. For the reasons stated below, it is not privileged.
[120]Affidavit of Jacob Isaac Noozhumurry Varghese affirmed 6 June 2016 (“Varghese’s Third Affidavit”), [6], referred to the documents identified in the Dellavedova Affidavit, [13]-[17], namely Maurice Blackburn’s list, numbers 3, 8, 192, 200, 202, 203, 206-208 and 290. Varghese’s Third Affidavit stated that Maurice Blackburn did not claim privilege with respect to these documents on the part of any person, but that he had been told by Harbour’s solicitor that Harbour “asserts and maintains privilege”.
[121]Varghese’s Third Affidavit, [3], referred to the documents identified in the Dellavedova Affidavit, [35] and [37], namely Maurice Blackburn’s list, numbers 106, 119, 140-142, 188, 193-199, 204, 205, 231, 232, 364 and 472-474.

(4)Specifically,[122] Maurice Blackburn alleged that the documents in Categories E and F are privileged to the First Client, and alternatively to Maurice Blackburn, pursuant to s 118 of the Evidence Act; the documents referred to in Category G are privileged to the First Client pursuant to ss 118 and 119 of the Evidence Act; and some of the documents referred to in Category H are privileged to the First Client pursuant to s 119 of the Evidence Act.[123]
[122]See also par 52(6) below.
[123]Maurice Blackburn Reply Submissions, [38].
(5)Maurice Blackburn claimed privilege on behalf of the First Client, over other documents created during the Second Period, which are not captured in Categories E to H,[124] namely:
[124]Maurice Blackburn Reply Submissions, [31] and [33].

(a) Category I, being an email from Varghese to Maurice Blackburn employees confirming the instructions of the First Client.[125]
[125]Dellavedova Affidavit, [23]; Maurice Blackburn’s list, number 515.

(b) Category J, being documents created to arrange and prepare for further meetings with Employee A (the purposes of those meetings being to obtain further information in respect of the Potential Class Action), and file notes of those meetings.[126]
[126]Dellavedova Affidavit, [24]-[25] and [29]-[30]; Maurice Blackburn’s list, numbers 23, 25, 26, 31, 32, 37, 56, 94, 96-98, 259, 260, 262, 279, 305, 306, 365, 366, 368, 390, 391, 407, 408, 411, 468, 537 and 549. Having inspected document number 31, it is not readily apparent how 29 pages of the 39 page document meets the description given in the Dellavedova Affidavit or in Maurice Blackburn’s list. Maurice Blackburn will be directed to the relevant pages so that this issue may be addressed. Further, although not submitted by Maurice Blackburn (with the exception of document number 468), these documents appear to fall into Category E as Dellavedova gave evidence that the purpose of these documents was to obtain information and evidence to provide to counsel. I further note that there was an error in par 29 of the Dellavedova Affidavit, which refers to documents created for the purpose of preparing for a discussion with Employee A on 20 July 2015. In this paragraph, Dellavedova stated that the documents were created for the “information gathering exercise referred to in the preceding paragraph”. However, the preceding paragraph relates to the Confidentiality Issues. This error was corrected in Dellavedova’s evidence in chief. I will therefore treat the statement “in the preceding paragraph” as a reference to par 25 of the Dellavedova Affidavit.

(c) Category K, being copies of, and communications regarding, documents provided by Employee A to Maurice Blackburn which related to the Potential Class Action.[127]
[127]Dellavedova Affidavit, [27], [31]; Maurice Blackburn’s list, numbers 210, 246, 288, 423, 476, 516 and 524.

(d) Category L, being drafts of, and communications regarding, public communications to be made by Maurice Blackburn to alert IOOF shareholders to the Potential Class Action.[128]
[128]Dellavedova Affidavit, [34]; Maurice Blackburn’s list, numbers 47, 122-124, 233, 234, 245, 254-256, 349, 350, 445-448, 506, 522-524 and 529.

(6)It is not clear whether Maurice Blackburn alleged that these documents are privileged to the First Client pursuant to s 118 or s 119 of the Evidence Act. However, in light of submissions made by Maurice Blackburn that all documents created in the Second Period are privileged pursuant to both provisions[129] (a submission that is inconsistent with the submissions referred to in paragraph 52(4) above), I will treat the privilege claims as having been made in that manner.
[129]Maurice Blackburn Reply Submissions, [31].
(7)Category M is yet a further document created during the Second Period, being an audio recording of a conversation between Dellavedova and an employee of Fairfax Media. Maurice Blackburn alleged parts of the interview were conducted on a confidential basis for the dominant purpose of gathering factual information relevant to the Potential Class Action.[130] There was no transcript of the audio tape at the start of the hearing of these applications. This was raised with Dellavedova during cross-examination. Maurice Blackburn produced the written transcript on the last day of the hearing, and in so doing informed the court that it no longer pressed the privilege claim with respect to this interview. Having read the transcript of the interview, it is difficult to understand how a claim was ever properly made. Given the timing of the production of the transcript, there was no opportunity to further cross-examine Dellavedova on this issue.[131] In these circumstances, it is unnecessary to make any findings with respect to this abandoned claim.
[130]Dellavedova Affidavit, [40]; Maurice Blackburn’s list, number 559.
[131]During cross-examination, Dellavedova declined to identify the relevant information in the conversation on the basis it would disclose the allegedly privileged communications.
(8)Upon the online registration portal being established, a number of shareholders of IOOF retained Maurice Blackburn to represent them.[132] From 8 October 2016, further documents were created as part of preparatory work for the Potential Class Action (“the Third Period”). These documents fall into the following categories:
[132]Dellavedova Affidavit, [43].
(a)Category N, being documents that relate to registrations by further Potential Class Action group members.[133]
[133]Dellavedova Affidavit, [45(a)]. No documents were identified as fitting this description in the Dellavedova Affidavit.
(b)Category O, being communications with Employee A.[134]
(c)Category P, being communications with counsel.[135]
(d)Category Q, being communications with respect to progress reports for Harbour.[136]

(9)Maurice Blackburn alleged that these documents are privileged to the First Client and to the Further Clients (who retained Maurice Blackburn during the Third Period).[137] Although not articulated explicitly, I will treat these privilege claims as having been made pursuant to both ss 118 and 119 of the Evidence Act, for the same reasons stated in paragraph 52(6) above.
(10)Category R consists of documents that fall within other categories identified above, created in the Second Period or the Third Period, the titles of which have been redacted. Maurice Blackburn contended that the titles themselves disclose the privileged contents of those documents.[138]
(11)Finally, Maurice Blackburn made various other privilege claims which have not been challenged by IOOF,[139] including in relation to copy documents regarding the Confidentiality Issues,[140] demands connected to the proceeding and a separate proceeding involving Employee A.[141] It is unnecessary to refer to these claims any further.

[134]Dellavedova Affidavit, [45(b)]; Maurice Blackburn’s list, numbers 33, 237 and 334. But see par 117 below with respect to document number 33.

[135]Dellavedova Affidavit, [45(c)]; Maurice Blackburn’s list, numbers 165-169, 555 and 556.

[136]Dellavedova Affidavit, [45(d)]; Maurice Blackburn’s list, numbers 190, 191, 201 and 360.

[137]Transcript, 303.21-28.

[138]Dellavedova Affidavit, [61]; Maurice Blackburn’s list, numbers 81, 237, 360, 385, 386, 393, 399 and 422.

[139]IOOF provided proposed orders to the court on 1 June 2016 which reflect this position.

[140]Dellavedova Affidavit, [28].

[141]Dellavedova Affidavit, [46]-[60].

IOOF has challenged the claims for privilege on the following grounds:

(1)IOOF submitted that Maurice Blackburn’s privilege claims with respect to Categories A to D cannot be maintained as there was no relationship of lawyer and client during the First Period. IOOF submitted such a relationship is necessary to establish such a claim.
(2)Further to subparagraph (1), with respect to various internal documents created during the First Period, IOOF submitted that such documents are not privileged. This was put on the basis that Maurice Blackburn could not be its own client in relation to a potential class action in respect of which it was intending to act as solicitors,[142] including because the lawyers it employed did not have the requisite independence to form such a relationship.[143]
[142]IOOF’s outline of submissions on privilege application filed 23 May 2016 (“IOOF Outline of Submissions”), [51], [59].
[143]IOOF Outline of Submissions, [70], [79].
(3)Even if there were a relationship of client and lawyer, IOOF submitted the documents were not created for the dominant purpose of providing legal advice to Maurice Blackburn.[144] Rather, IOOF contended that the documents were prepared for the commercial purpose of “working up” the Potential Class Action, which, if successful, would be of financial benefit to Maurice Blackburn and its principals.[145]
(4)As to communications with counsel during the First Period, IOOF submitted that such documents were not created for the dominant purpose of providing Maurice Blackburn with legal advice as a client. Rather, IOOF contended that such documents were created for the commercial purpose of assisting Maurice Blackburn in its negotiations with Harbour in relation to the funding of the Potential Class Action.[146]
(5)As to the documents produced in the Second Period (relevantly Categories E to L), IOOF disputed Maurice Blackburn’s claim that these documents are privileged to the First Client. IOOF’s primary submission was that there was insufficient evidence to establish that these documents were prepared for the First Client alone.[147] For example, IOOF pointed to the fact that the First Client’s name did not appear on any documents produced during the Second Period, that the First Client was not requested to pay any fees at that time[148] and that contact with the First Client was very limited.[149] IOOF alleged that the documents produced in the Second Period were in fact prepared for prospective clients, and not for the dominant purpose of providing legal advice, or legal services for anticipated litigation, to the First Client.[150] In this way, IOOF characterised these documents as having been produced for a commercial purpose, similar to its submissions regarding the documents produced during the First Period.[151]
(6)IOOF also challenged the privilege claims in respect of particular documents produced in the Second Period, including those documents relating to practical arrangements, document management, task lists, internal documents regarding ongoing administration, and public communications, on the basis that they could not constitute the provision of legal services.[152]
(7)As to the claim that documents produced in the Second Period are privileged pursuant to s 119 of the Evidence Act, IOOF submitted that there is insufficient evidence that there was a real prospect of litigation and therefore there was no “anticipated … proceeding” when the documents came into existence.[153] It alleged that Maurice Blackburn was only “gauging interest” in the Potential Class Action.[154]
(8)IOOF only sought production of 1 document that was said to be referrable to the Third Period, being document number 33. It appears that IOOF challenged the privilege claim made over this document on the same basis it challenged the claims in relation to documents produced in the Second Period. This is because the document is in fact dated 12 August 2015, thereby preceding the Third Period.[155]
(9)Finally, IOOF requested that the court inspect the Category R documents, the titles of which have been redacted, in order to determine whether the claims of privilege have been properly made.[156] Maurice Blackburn accepted that inspection of these documents was a convenient means to resolve this issue.

E.3 Harbour’s documents

[144]IOOF Outline of Submissions, [27(d)] and [96].

[145]IOOF’s notes for final address, handed to the court on 1 June 2016 (“IOOF Final Address Notes”), [7] and [11].

[146]IOOF Final Address Notes, [20].

[147]IOOF Outline of Submissions, [27(b)], [90] and [97].

[148]IOOF Final Address Notes, [35] and [36].

[149]See par 42 above and IOOF Final Address Notes, [34].

[150]IOOF Final Address Notes, [41].

[151]IOOF Final Address Notes, [42].

[152]IOOF Final Address Notes, [43].

[153]IOOF Outline of Submissions, [98(c)]. I note that IOOF also appears to make this submission in relation to the documents produced in the Third Period.

[154]IOOF Final Address Notes, [44].

[155]Transcript, 217.31-218.7. See par 117 below.

[156]IOOF Final Address Notes, [46].

In contrast to the large number of claims by the other parties, Harbour claimed privilege with respect to only 23 copy documents in its possession.[157] IOOF stated in closing submissions it no longer challenged the claim with respect to 6 of those documents.[158] Harbour’s privilege claims were for advice privilege or litigation privilege, or both. Harbour claimed litigation privilege on the basis that, from 16 July 2015, the Potential Class Action was reasonably probable, or, at least, likely.[159] The remaining documents in Harbour’s possession fall into 10 categories:
[157]Transcript, 122.23-127.12.
[158]Harbour’s list, numbers 13-15 and 17-18 of part 2A of schedule 1 and number 5 of part 2B of schedule 1 are now not challenged.
[159]See par 38 above.

Further, the fact that Harbour was likely to use the legal advice it received as part of its commercial considerations (in determining whether or not to fund the Potential Class Action) does not alter the dominant purpose for which the relevant documents were created, or for which the communications between Maurice Blackburn and Harbour occurred.

To the extent that the documents in Category H.2 record details of the investigations by Maurice Blackburn and the preparation of the public launch of the Potential Class Action, those documents are not the subject of litigation privilege of the First Client. With respect to document number 3,[270] this is undoubtedly because it was created in the First Period, before the First Client retained Maurice Blackburn.[271] However, the remainder of the documents in Category H.2 were created in the Second Period.[272] In circumstances where Harbour required information in order to fund the Potential Class Action,[273] the provision of such documents to the funder on a confidential basis might be consistent with the maintenance of the First Client’s privilege.[274] Harbour made submissions on the basis that litigation privilege was claimed, but there is no evidence on behalf of the First Client (or any other client of Maurice Blackburn) that such a claim is made. Accordingly, with respect to Category H.2, there is no proper basis for any litigation privilege claim.
[270]Harbour’s list part 2A of schedule 1, number 3.
[271]Varghese’s Third Affidavit expressly acknowledged no privilege claim was made by the First Client in this regard: see fn 120 above.
[272]Harbour’s list part 2A of schedule 1, numbers 5, 6, 11 and 12.
[273]O’Dowd Affidavit, [9(i)].
[274]See fn 243 above.

With respect to Harbour’s advice privilege claim regarding documents numbered 3, 5 and 6,[275] for reasons similar to those discussed above,[276] the absence of a retainer of Maurice Blackburn by Harbour did not preclude confidential communications and documents being made and created for the dominant purpose of Harbour (being the “client” for the purposes of s 118) being provided with legal advice. I will deal with the remaining 3 documents separately.
[275]Harbour’s list part 2A of schedule 1, numbers 3, 5 and 6. No advice privilege claim was made with respect to numbers 11 and 12.
[276]See par 132 above.

First, document number 3[277] in Category H.2 is an email chain consisting of 3 communications on 15 and 16 July 2015 between Maurice Blackburn and Harbour. To reiterate, at the time of these communications, Maurice Blackburn had no client, nor had there been any communication by Maurice Blackburn with a prospective client (the first such discussion occurring on the morning of 17 July 2015 Australian Eastern Standard Time).[278]
[277]This document is a copy of the document discovered by Maurice Blackburn in Maurice Blackburn’s list, number 206.
[278]See par 40 above.

The first email in time, sent at 12.47 am on 15 July 2015, discusses matters relevant to legal advice and evidence for the Potential Class Action. That email is properly the subject of a claim for privilege under s 118(a) by Harbour.

The second email, sent at 6.32 pm on 15 July 2015 responds to the first email. However, that response is confined to the first sentence, which only consists of 4 words. The rest of the email does not relate to any request for advice or any advice given to that time. It is not privileged under s 118. In these circumstances, except for the first sentence, there is no proper basis for the claim made.

The last email in time, sent by Dellavedova to O’Dowd at 4.45 pm on 16 July 2015,[279] referred in the first sentence to matters relevant to ongoing advice to Harbour. However, the remainder of the email is not concerned with requesting or receiving legal advice and does not fall within s 118. In those circumstances, Harbour’s claim for privilege with respect to the whole of the document cannot be maintained.
[279]It is unclear where this was Australian Eastern Standard Time or British Summer Time.

Accordingly, Harbour will be ordered to produce a copy of document number 3, redacted in accordance with the reasons above.[280]
[280]Cf Perazzoli v BankSA (No 2) [2016] FCA 260, [31] (Mansfield J); Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796, [34]-[35] (Beach J).

Secondly, most of the communications comprising document number 5 in Category H.2 do not come within the descriptions given by O’Dowd in significant respects.[281] The email chain in question commenced on 20 July 2015 and concluded on 27 July 2015. Most of the emails in the chain are not concerned with Maurice Blackburn’s investigations or the public launch of the Potential Class Action, but rather the proposed funding agreement. These confidential communications effectively amount to commercial negotiations between, relevantly, 2 arm’s length parties. With 1 exception,[282] the communications did not occur, and the documents were not created, for the dominant purpose of a lawyer providing legal advice.
[281]This is not to suggest that the O’Dowd Affidavit is incorrect in this regard as his evidence concerning the description of this category was not exhaustive.
[282]The last email in time refers to the advice from counsel and matters relevant to the progress of Maurice Blackburn’s investigative work. Unlike the other emails, it is marked confidential in the title of the email.

Accordingly, except for the last email in time, Harbour will be ordered to produce a copy of document number 5.

Thirdly, the communications in document number 6 (which are individually marked “confidential”) relate to advice to be given by Maurice Blackburn to Harbour by way of “an update”. Each of them is a confidential communication falling within s 118(a) and is privileged.

Category H.3 comprises an email chain dated 17 July 2015,[283] plus attachments. The earliest email in time, from Harbour to Maurice Blackburn, confirmed the funding of the Potential Class Action had been conditionally approved. A later email in the chain summarised the conditions of Harbour Fund III and stated the expected next steps in the investment process. Such a communication is not legal advice or for the dominant purpose of the provision of legal advice.
[283]A copy of this email chain was also discovered by Maurice Blackburn: Maurice Blackburn’s list, number 208. See fn 119 above.

Further, in this context, the communication from Harbour is not from “the client”, but from the funder with the dominant purpose of setting out matters relevant to the funding agreement, and Harbour’s basis for a return on investment. The communication was not for the dominant purpose of Harbour being provided with advice, notwithstanding a sentence in the email makes a reference to a previous discussion concerning the desire for counsel’s opinion. Furthermore, although the emails were sent on the same day that the First Client retained Maurice Blackburn, there is no reference to the First Client in the emails and no claim for privilege is made by the First Client. Accordingly, the document should be produced for inspection.

In making this finding, the authorities which suggest that litigation privilege may be claimed with respect to a funding agreement and related documents have not been overlooked.[284] Assuming the correctness of those authorities,[285] there is no evidence in Varghese’s Third Affidavit that any client ever sought to claim privilege in relation to the documents in question. For reasons already stated,[286] Harbour has no basis for claiming litigation privilege in its own right.
[284]See fn 243 above.
[285]In Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd (No 2) (2009) 180 FCR 1, 9-10 [26]-[27], Finkelstein J did not need to decide this issue as a redacted copy was already in the hands of the other party and his Honour found the relevant parts of the funding documents could be redacted on the ground that the information was not relevant to the issues in dispute. See also pars 113-115 above.
[286]See par 131 above.

By way of background, during closing submissions I raised with Maurice Blackburn that the evidence it had led as to why documents were privileged only came from solicitors. Nowhere was there any evidence that the First Client for the Second Period and beyond, or the Further Clients with respect to the Third Period, actually made the claims for privilege. Maurice Blackburn sought leave, which was granted, to file a further affidavit. As a result, Varghese’s Third Affidavit was affirmed on 6 June 2016, giving the basis upon which each claim was made.[287]
[287]The evidence was largely given on information and belief, Varghese having obtained specific instructions from the First Client and, with respect to the Further Clients, apparently based on the terms of the written retainer which each of the Further Clients entered into: Varghese’s Third Affidavit, [4]. The First Client’s retainer of Maurice Blackburn was in evidence, and clause 4.1 of that retainer sets out the “Legal Work” consistent with Varghese’s account of the terms of the retainer with later clients: with respect to this evidence, see par 129 above.

To reiterate, Varghese’s Third Affidavit contained no evidence of any claim for privilege by the First Client or the Further Clients with respect to Category H.3. On the contrary, the documents in the Dellavedova Affidavit that fall within Category H.3 are expressly identified as being the subject of a claim by Harbour.[288]
[288]Varghese’s Third Affidavit, [6]: see fn 120 above.

In advancing the privilege claim in relation to Category H.3, Harbour submitted the claim was made not by any existing client of Maurice Blackburn, but by “the potential class members in” the Potential Class Action. Needless to say, no lawyer from Harbour has ever acted for such persons. Further, putting aside whether documents or communications would properly be the subject of a privilege claim for “potential class members” who, at the time the documents were created, knew nothing of the work being performed,[289] neither Maurice Blackburn nor Harbour have put forward any evidence that persons who might fit the description “potential class members” have ever made a privilege claim with respect to the email in question. In the circumstances set out above, this cannot be understood to arise from mere inadvertence.[290]
[289]Perazzoli v BankSA (No 2) [2016] FCA 260, [30], [78], [81] (Mansfield J). See also fn 265 above.
[290]As may be seen, in other parts of the judgment I have allowed for the possibility of inadvertence, given the large number of documents involved.

In part for reasons already discussed,[291] the documents within Category H.4 are privileged. The legal advices from Maurice Blackburn fall within s 118. For similar reasons to those stated in paragraphs 83 to 84 above, Maurice Blackburn and Harbour were the clients of counsel for the purposes of counsel’s advices, and Harbour was a client of Maurice Blackburn to the extent Maurice Blackburn itself gave legal advice to Harbour. The remaining documents within Category H.4 are the subject of the First Client’s litigation privilege.[292]
[291]See par 132 above.
[292]See pars 113-115 above. Copies of these documents were also discovered by Maurice Blackburn, including Maurice Blackburn’s list, numbers 140-142, 188 and 472-474.

The Category H.5 document is plainly privileged. The only basis upon which the privilege in counsel’s advice was challenged was the submission already rejected, namely that there was no client at the time.[293]
[293]See par 150 above.

Based on the evidence of O’Dowd, Category H.6 is a privileged communication as it recorded Harbour seeking legal advice from Maurice Blackburn. Having been invited by IOOF to inspect the document, the email last in time in the chain, dated 16 October 2015, meets this description, and therefore falls within s 118(a). However, on the face of the document, the preceding email in time (sent 15 October 2015 at 11.15 am) is not as described by O’Dowd. Having read its contents, it seems possible, or even likely, that it is a response to the email sent 16 October 2015, and the date and time of the emails are incorrectly recorded. If this is the correct analysis, then the entire document, including the attachment, is privileged. Harbour will be invited to clarify the position.

In addition to Maurice Blackburn’s legal advice, Category H.7 consists of 3 further documents. Those documents are listed in an index entitled “Harbour Investment Committee Papers”, dated 9 July 2015.

The first document, referred to as “Investment Committee Overview Document” is actually entitled “Harbour Litigation Funding Investment Recommendation”. Although O’Dowd is a lawyer, it is apparent from reading that document that the dominant purpose of its creation was to advise the Investment Committee of the factors relevant to the decision to invest, most of which are commercial. The dominant purpose does not come within s 118. That said, some paragraphs within the document record legal advice previously given by Maurice Blackburn. On my reading, those paragraphs are 7, 8 and 10 on page 4. Harbour will be given the opportunity to redact paragraphs 7, 8 and 10 of this document. Once that is done, the redacted document will be required to be produced subject to any further issues concerning its contents.[294]
[294]As no submissions have been made on this issue, Harbour will be invited to consider whether any other part of the document also meets the description of recording legal advice given by Maurice Blackburn or O’Dowd.

The next document is described as “Returns Analysis”. It is unclear on the face of the document whether it contains advice from Maurice Blackburn concerning potential legal costs. However, it is plain that much of the document simply records the mathematics of potential returns to Harbour based on various possible scenarios. This aspect of the document is not privileged. I will allow Harbour to review the document to redact any part of it that reflects advice given by Maurice Blackburn as to potential legal costs,[295] but otherwise the document must be produced for inspection.
[295]If any redaction is to occur, the redacted document must be produced to the court for inspection.

The next document in the index is a “Marketing note”. This is an email from O’Dowd sent on 29 June 2015, with the subject or title “CRM Note: Maurice Blackburn”. Its contents reveal the dominant purpose was to inform the recipients of the potential commercial relationship with Maurice Blackburn.[296] Without going into specifics, it provides, amongst other things, details of meetings with Maurice Blackburn in Melbourne (including Dellavedova and Varghese) which, according to the email, occurred before there was any knowledge (at least, of Harbour) of the publicity about IOOF. The email also gives details of meetings with Maurice Blackburn in Sydney (which did not include Dellavedova and Varghese). With respect to the Sydney meetings, again without going into specifics, reference is made to the possibility of Harbour funding any future litigation. This was at a time when Maurice Blackburn did not have a client who was a claimant in the Potential Class Action. Further, the email does not record any legal advice or any request for such advice. The document is not privileged.
[296]The detail in the email is far more specific than the very general evidence given by O’Dowd as to timing of various events: O’Dowd Affidavit, [21]-[22]. In this regard, it should also be noted that Harbour did not ask Maurice Blackburn for any legal advice until “late June 2015”: Dellavedova Affidavit, [14], see par 24 above.

The final document is the Maurice Blackburn advice, which has already been found to be privileged.[297] This document does not lose its privilege by being part of a bundle of other confidential, albeit not privileged, documents.
[297]See par 132 above.

Category H.8 is identical to Category H.7, save that there is a covering email sent on 10 July 2015 from Harbour’s office manager. The rulings with respect to Category H.7 are equally applicable to Category H.8. Further, the covering email contains nothing more than the addressees, the subject or title of the email and the name of the attachment “Investment Committee Pack – IOOF – 9 July 2015.pdf”. It follows that the covering email is not privileged and must be produced by Harbour.

Category H.9 is the same as Category H.4, save for a different covering email, sent by O’Dowd on 21 August 2015. In broad terms, the covering email summarises Maurice Blackburn’s advice and also states O’Dowd’s opinion with respect to that advice. The email concludes with a sentence providing some information about Maurice Blackburn’s progress with Employee A and Maurice Blackburn’s view on prospects. In my view, the covering email contains a confidential communication of legal advice made between a “client” (Harbour) and a “lawyer” (either Maurice Blackburn or O’Dowd) within s 118(a) or is a confidential document prepared by a “lawyer” (O’Dowd) or “another person” (O’Dowd) for the dominant purpose of “the lawyer” (O’Dowd or Maurice Blackburn respectively) providing legal advice to the “client” (Harbour) within s 118(c).[298] All documents in this category are privileged.
[298]There was no attempt to challenge O’Dowd’s role as a lawyer acting professionally when providing legal advice such that any such advice would not attract privilege: see fn 11 and par 47(13) above.

Category H.10 comprises the same documents as Category H.5, save that it also includes a confidential covering email sent on 30 September 2015 by Harbour’s head of litigation funding to members of the Investment Committee.[299] The covering email purports to summarise the legal advice, as well as foreshadowing when and by what means Maurice Blackburn was expecting to make the Potential Class Action the subject of a public announcement. Insofar as the email summarises the legal advice, the communication is privileged. The sender is simply acting as a conduit, and the disclosure of that part of the communication would result in the disclosure of a confidential communication made between the “client” (Harbour) and a “lawyer” (counsel) within the meaning of s 118. The fact that a new document was created does not alter the position.[300] However, the remainder of the email is more concerned with the timing of upcoming events, and seeks any responses. It is not legal advice and cannot properly be the subject of a claim for privilege. No client of Maurice Blackburn sought to claim privilege with respect to any document in Category H.10. Harbour will be ordered to produce a redacted copy of the email in accordance with these reasons.
[299]Although the head of litigation funding, Susan Dunn, qualified as a solicitor in 1992, it was not suggested she was acting as a lawyer in forwarding the email on 30 September 2015: O’Dowd Affidavit, [47].
[300]Cf the position at common law: Spotless Group Ltd v Premier Building and Consulting Group Pty Ltd (2006) 16 VR 1, 10 [23] (Chernov JA, with whom Warren CJ agreed), but also see 14-15 [37]-[38], 17-19 [49]-[60] (Neave JA).

Finally, with respect to Category H of the documents in Maurice Blackburn’s possession over which Harbour claims privilege,[301] and which have not already been addressed above,[302] those documents are privileged under s 118 of the Evidence Act. As it has been found that legal advice from Maurice Blackburn to Harbour was privileged, it follows the confidential drafts of that advice are also privileged,[303] as is another confidential copy of that advice.[304] Further, documents prepared in relation to confidential communications between Maurice Blackburn and Harbour concerning that advice are privileged.[305]

G. Conclusion

[301]See para 50(3)(d) above.

[302]The documents in Maurice Blackburn’s list, numbers 192, 202, 206 and 208, have been dealt with in addressing Categories H.1 to H.3, specifically documents in Harbour’s list Part 2A of Schedule 1, numbers 1-4: see pars 132-149 above.

[303]Maurice Blackburn’s list, numbers 3 and 8.

[304]Maurice Blackburn’s list, number 290.

[305]Maurice Blackburn’s list, numbers 200, 203 and 207.

Each of IOOF, Maurice Blackburn and Harbour has been partially unsuccessful in its claims for privilege. Subject to matters raised in these reasons,[306] orders will be made for the production of certain documents consistent with these reasons, but otherwise each of the applications will be dismissed.
[306]See pars 93, 117, 122, 134, 152 and 155 and fnn 13, 77, 99, 120, 126, 194, 195, 204, 248, 253, 259 and 294 above.

[2016] VSC 311

25 AUGUST 2016