Karri Country Produce Pty Ltd as trustee for the Franceschi Trust v Advance Packing and Marketing Services Pty Ltd as trustee for the APMS Unit Trust

[2022] WASC 37

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   KARRI COUNTRY PRODUCE PTY LTD AS TRUSTEE FOR THE FRANCESCHI TRUST -v- ADVANCE PACKING & MARKETING SERVICES PTY LTD AS TRUSTEE FOR THE APMS UNIT TRUST [2022] WASC 37

CORAM:   ACTING PRINCIPAL REGISTRAR MCDONALD

HEARD:   ON THE PAPERS

DELIVERED          :   14 FEBRUARY 2022

PUBLISHED           :   14 FEBRUARY 2022

FILE NO/S:   CIV 3076 of 2019

BETWEEN:   KARRI COUNTRY PRODUCE PTY LTD AS TRUSTEE FOR THE FRANCESCHI TRUST

Plaintiff

AND

ADVANCE PACKING & MARKETING SERVICES PTY LTD AS TRUSTEE FOR THE APMS UNIT TRUST

Defendant

Catchwords:

Discovery - Inspection - Legal professional privilege - Without prejudice privilege - Onus - Disclosure to third parties - Capacity and independence of lawyer - Whether unit holders in a unit trust and Trustee have a joint interest - Application for inspection successful in part

Legislation:

Rules of the Supreme Court 1971 (WA), O 26 r 9, r 12

Result:

Inspection of certain documents ordered
Plaintiff's application allowed in part

Category:    B

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Johnson Winter & Slattery - Perth
Defendant	:	HWL Ebsworth Lawyers (Perth)

Case(s) referred to in decision(s):

Alcoa of Australia Ltd v Apache Energy Ltd [No 6] [2014] WASC 287

Apple Computer Australia Pty Ltd v Wily [2002] NSWSC 855

Archer Capital 4A Pty Ltd (as trustee for the Archer Capital Trust 4A) v Sage Group plc (No 2) [2013] FCA 1098

AWB Ltd v Cole (No 5) [2006] FCA 1234; 155 FCR 30

AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382

Balabel v Air-India [1988] 1 Ch 317

Barnes v Commissioner of Taxation [2007] FCAFC 88

Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd (No 2) [2009] FCA 449

Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181

Carr v Larussa [2018] WASC 176

Coal Hub Pty Ltd v NSL Consolidated Ltd [2016] WASC 203

Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247

Commissioner of Taxation (Cth) v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404

Crawford v Quail [2021] WASC 290

CTC Resources NL v Australian Stock Exchange [2000] WASCA 19; (2000) WAR 48

Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325

Dowling v Ultraceuticals Pty Ltd [2016] NSWSC 386; (2016) 93 NSWLR 155

DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191; (2003) 135 FCR 151

Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd [2011] VSC 477

Dye v Commonwealth Securities Limited (No 5) [2010] FCA 950

Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49

Field v Commissioner for Railways for New South Wales [1957] HCA 92; (1957) 99 CLR 285

General Manager, Workcover Authority (NSW) v Law Society (NSW) [2006] NSWCA 84

Grant v Downs [1976] HCA 63; (1976) 135 CLR 674

Gray v BNY Trust Company of Australia Limited [2009] NSWSC 789; (2009) 76 NSWLR 586

Hancock v Rinehart [2016] NSWSC 12

Hansfield Developments v Irish Asphalt Ltd [2009] IEHC 420

Harrington v Lowe (1996) 190 CLR 311

Krok v Szaintop Homes Pty Ltd (No 1) [2011] VSC 16

Lampson v Fortescue Metals Group Ltd [No 2] [2010] WASC 217

Lane v Admedus Regen Pty Ltd [2016] FCA 864

Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1

Marshall v Prescott [2013] NSWCA 152

Martin v Norton Rose Fulbright [2019] FCA 96

Martin v Norton Rose Fulbright (No 2) [2019] FCA 96

Martin v Norton Rose Fulbright Australia [2019] FCAFC 234

Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1

Murray v Schreuder [2009] WASC 51

New South Wales v Betfair Pty Ltd (2009) 180 FCR 543

Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11

Perazzoli v BankSA [2017] FCAFC 204

R (on the application of Jet2.com Ltd) v Civil Aviation and Authority (Law Society of England and Wales intervening) [2020] EWCA CIV 35; All ER 374

Rodgers v Rodgers [1964] HCA 25; (1964) 114 CLR 608

Rush & Tompkins Ltd v Greater London Council [1989] AC 1280

Schreuder v Murray [No 2] [2009] WASCA 145; (2009) 41 WAR 169

Seiffert v Prisoners Review Board [2010] WASC 239

South Australia v Peat Markwick Mitchell (1995) 65 SASR 72

Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd [No 2] [2009] WASC 150

TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd [2020] WASC 364

Thomas v Secretary of State for India (1870) 18 WR 312

Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 69

Waterford v Commonwealth of Australia (1987) 163 CLR 54

White v Overland [2001] FCA 1835

Wood (as co-executor and trustee of the will of the deceased) v Wood [No 2] [2014] WASC 387

Woodingsv WA Glendinning & Associates Pty Ltd [2019] WASC 54

Yokogawa v Alstrom [2009] SASC 377

ACTING PRINCIPAL REGISTRAR MCDONALD:

Introduction

1. This is an application by the plaintiff made by chamber summons requiring the defendant to produce for inspection six documents over which the defendant claims privilege (Privileged Documents).  These documents are listed in Annexure A to the chamber summons and comprise of four documents subject to claims of legal professional privilege and two documents subject to claims of without prejudice privilege.

2. For the reasons that follow the plaintiff's challenge to the claim of privilege is upheld in relation to the documents in Categories A and B, but not in relation to the documents in Category C.

The action

1. The plaintiff is or was a unit holder, along with a number of other entities, in a unit trust known as 'The APMS Unit Trust' (the Trust)[1] which was established on or about 13 October 2007 by the execution of the 'Unit Trust Deed he APMS Unit Trust' (the Trust Deed).[2]  The defendant is the trustee of the Trust.[3]  The Trust is in the business of marketing, selling and exporting fresh produce.[4]

   [1] Affidavit of George Alexander Croft sworn 15 May 2020 (First Croft Affidavit) [5].

   [2] Amended Statement of Claim filed 15 January 2021[3]; Further Amended Defence filed 19 February 2021 [3].

   [3] First Croft Affidavit [6].

   [4] Amended Statement of Claim filed 15 January 2021 [1(c)]; Further Amended Defence filed 19 February 2021 [2].

2. At a meeting on 28 November 2018, directors of the defendant resolved by majority to take steps to compulsorily acquire the plaintiff's units in the Trust.[5]  The Trust Deed required that units compulsorily acquired be independently valued.[6] 

   [5] First Croft Affidavit [8].

   [6] First Croft Affidavit [8].

3. On 18 April 2019, the chairman of the defendant provided the plaintiff with a valuation report prepared by BDO Advisory (WA) Pty Ltd (the BDO Report) and a notice of meeting of the directors of the defendant, to be held on 6 May 2019.[7]  BDO Advisory (WA) Pty Ltd had been appointed to conduct a valuation of the units in the Trust for the purposes of redeeming the plaintiff's units.[8]  The plaintiff claims that contrary to the Trust Deed and in breach of the Trustee's duties, the plaintiff was denied the opportunity to make submissions to the valuer, review the draft report and check it for accuracy before the BDO Report was finalised.[9]

   [7] First Croft Affidavit [9].

   [8] First Croft Affidavit [15].

   [9] Amended Statement of Claim filed 15 January 2021 [35A] - [35F], [37], [42].

4. At the meeting on 6 May 2019, the directors of the defendant called a vote to compulsorily acquire the plaintiff's units in the Trust.[10]  Though apparently passed, the plaintiff alleges that there were breaches of the Trust Deed and breaches of the Trustee's duties and the resolution was invalid and of no effect.  Later on that day, this resolution was approved by unit holders.[11]  The plaintiff further alleges that this second resolution was invalid. At the conclusion of the second meeting on 6 May 2019, the chairman of the board of the defendant signed a document entitled 'Trustee Redemption Notice' pursuant to clause 8.1(b) of the Trust Deed.[12]  The plaintiff alleges that the Trustee Redemption Notice is also invalid.[13]

   [10] First Croft Affidavit [10].

   [11] First Croft Affidavit [11].

   [12] First Croft affidavit [12].

   [13] Amended Statement of Claim filed 15 January 2021 [38], [43], [46], [48].

5. On 4 December 2019, the plaintiff commenced these proceedings against the defendant seeking various remedies including, among other claims, declaratory relief to the effect that the Trustee Redemption Notice is invalid, the units were not validly redeemed and that the plaintiff remains a unit holder of the Trust.[14]

   [14] Amended Statement of Claim filed 15 January 2021 [50].

Application and procedural framework

1. On 9 April 2020, the parties gave discovery and exchanged lists and sets of discovered documents.  Due to Covid‑19 restrictions, the parties agreed to defer the filing of sworn affidavits verifying their respective discovery.[15] 

   [15] First Croft Affidavit [20].

2. The claim for inspection of the Privileged Documents is supported by the affidavit of George Alexander Croft sworn 15 May 2020 (the First Croft Affidavit).  The claim for privilege is supported by the affidavit of Ms Alison Jane Robertson sworn on 10 August 2020 (the Robertson Affidavit).  The defendant has delivered copies of the Privileged Documents to the court, annexed to a confidential affidavit also sworn by Ms Alison Jane Robertson on 10 August 2020 (the Confidential Robertson Affidavit) in the event inspection is required. 

3. The Privileged Documents fall within the following categories:

Category	Discovery No.	Document	Basis of objection
Category A	1644	APM.0004.0001.5720	Legal professional privilege (part-privileged - redacted)
Category B	1524 1575 1591	APM.0004.0001.0335 APM.0004.0001.0438 APM.0004.0001.0610	Legal professional privilege
Category C	1628 1637	APM.0004.0001.1074 APM.0004.0002.5594	Without prejudice privilege

1. The plaintiff challenges the claims of privilege and seeks production and inspection of the Privileged Documents. The application is said to be pursuant to O 26 r 8(2) and r 10 of the Rules of the Supreme Court 1971 (WA) (RSC).[16] RSC O 26 r 8(2) entitles a party, at any time, to serve a notice on any party in whose pleadings (or affidavits) reference is made to any document requiring the other party to produce that document for inspection by the party giving the notice. RSC O 26 r 10 permits the court to order any party to produce any document in the party's possession, custody or power to the court.

   [16] Plaintiff's Chamber Summons filed 15 May 2020.

2. The right to inspect under RSC O 26 r 8(2) is a right conferred as an alternative to, or in addition to, discovery.[17]  The Privileged Documents are not referred to in the pleadings nor is this an application for the documents to be produced to the court.

   [17] Murray v Schreuder [2009] WASC 51 (Newnes J) [67] referred to by the Court of Appeal without disapproval in Schreuder v Murray[No 2] [2009] WASCA 145; (2009) 41 WAR 169 [55] (Buss JA; McLure JA concurring); Seiffert v Prisoners Review Board [2010] WASC 239 [12] (Martin CJ).

3. I have therefore treated the application as one made pursuant to the RSC O 26 r 9(2) which provides that the court, subject to r 11, may order a party to permit an applicant to inspect any document in the possession, custody or power of the first party relating to any matter in question in the action.

Documents

Category A - document 1644

1. This is an email chain containing emails between the dates of 26 February and 13 March 2019 between directors of the defendant and various persons connected with unit holders of the Trust.

2. The email chain includes emails from Mr Stuart Moore of BDO Advisory (WA) Pty Ltd, to the chairman of the board of the defendant attaching drafts of the BDO Report.[18] 

Category B – documents 1524, 1575, 1591

[18] Affidavit of George Alexander Croft sworn 14 August 2020 (Second Croft affidavit) [16] - [17].

1. These documents relate to a series of emails between Mr Brad Giles, the defendant's external accountant and Mr Greg Solomon who is a lawyer, a partner at the legal firm Solomon Brothers, and a director of a trustee company of a trust which is one of the unit holders in the Trust.[19] 

Category C – documents 1628 and 1637

[19] Robertson Affidavit [16].

1. These documents comprise of two emails dated 29 May 2018 and 20 August 2018.  Document 1637 dated 29 May 2018 is from the chairman of the board of the defendant to other directors of the defendant, the defendant's accountant and a director of a unit holder.  Document 1628 dated 20 August 2018 is an email between the same people except the accountant.  Both emails are said to be without prejudice on the basis the emails contain without prejudice communications between the defendant and the plaintiff's lawyer.

Issues for determination

1. In relation to the Category A and B documents over which legal professional privilege is claimed, there are three issues for determination:

   1whether the defendant established that the emails received or created by persons who were connected with unit holders in the Trust and who were lawyers, were received or created by them in their professional capacities as lawyers, and for the dominant purpose of giving or receiving legal advice;

   2whether the defendant established that the communications were confidential and that the inclusion of third parties in those communications was consistent with the maintenance of confidentiality and legal professional privilege; and

   3whether advice obtained was for the purpose of the administration of the Trust, such that any privilege is a joint privilege that cannot be invoked against a beneficiary.

2. In relation to the Category C documents over which without prejudice privilege is claimed, the issues are:

   1whether the defendant established that without prejudice privilege attaches to the communications; and

   2whether that privilege has been waived by communication to representatives of unit holders other than the plaintiff.

Legal principles

1. Where a claim of privilege is made RSC O 26 r 12 provides:

   12. Claim of privilege

   (1) Where ‑

   (a)on an application for production of a document for inspection or to the Court; or

   (b)in any list of documents supplied on discovery,

   a party claims privilege the party requiring production or discovery may traverse the claims to privilege by adducing evidence either that the claim to privilege is unfounded or mistaken, but in the absence of any evidence to that effect the claim to privilege shall be sustained.

   (2) In determining any objection on the ground of privilege to the production or discovery of any document or class of document the Court may inspect the document.

2. Where an objection on the ground of privilege is established then as a matter of law production cannot be ordered.[20]

Onus

[20] Alcoa of Australia Ltd v Apache Energy Ltd [No 6] [2014] WASC 287 [17] (Le Miere J).

1. There is a preliminary issue as to who bears the onus of establishing or refuting a claim of privilege. While the ultimate legal onus remains upon the party claiming privilege, under RSC O 26 r 12(1)(a) an evidential onus is cast upon the party seeking inspection if the claim for privilege is 'apparently proper'.[21]  The approach to be taken in such applications, which I adopt, was concisely summarised by Hill J in TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd [2020] WASC 364:[22]

   A party who is claiming legal professional privilege carries the onus of establishing the claim is well founded.  In claiming privilege, they are required to:

   (a)list each communication the subject of the claim for privilege;

   (b) state the form in which each communication is contained, stored or recorded, whether it is an original or a copy and the date when each was made;

   (c) identify the persons between whom the communication or communications were made; and

   (d) provide evidence as to the basis of the claim for legal professional privilege (Rayney v AW [2009] WASCA 203 [42] citing with approval National Crime Authority v S (1991) 29 FCR 203, 212; Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 [13]).

   The plaintiff's application is brought pursuant to O 26 r 9 of the Rules which entitles the court on an application by a party to make an order for inspection of documents. The plaintiff accepts that, under O 26 r 12 of the Rules, it bears the evidentiary onus to show that the defendant's claim of privilege is unfounded or mistaken (CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48 [33] - [34]). In discharging this onus, the plaintiff is not restricted to reliance on its own affidavits; it may rely on all of the evidence that is before the court (Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181 [70]). In the absence of any evidence to support the challenge to the claim of privilege, it is not sufficient for a party to challenge the claim and have the court inspect documents to determine whether the claim is valid (CTC Resources NL v Australian Stock Exchange Ltd [37]). In these circumstances, the claim for privilege will be sustained (Rules of the Supreme Court 1971 (WA), O 26 r 12(1)), [15] ‑ [16].

   [21] Woodings v WA Glendinning & Associates Pty Ltd [2019] WASC 54 [28] (Smith J).

   [22]  See also Crawford v Quail [2021] WASC 290 [25] ‑ [28] (Hill J).

2. In Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181, Murphy J with whom Martin CJ and Newnes J agreed, held:[23]

   Whilst the ultimate legal onus remains on the party claiming privilege, an evidential onus may be cast upon the party seeking inspection if the claim for privilege is 'apparently proper': CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48 [33] - [34]. In that case the party claiming the privilege had, in affidavits, 'clearly address[ed] all the issues required for such a claim'. The court is not confined to considering a contentious affidavit of the party seeking inspection, and is entitled to look at any evidence before the court which may be capable of raising doubts as to the authenticity of the privilege claim: CTC v Australian Stock Exchange [39].

   What is required, for the purposes of establishing a privilege claim, will vary depending on the nature of the document and the particular ground on which privilege is claimed: Kadlunga Proprietors v Electricity Trust of South Australia (1985) 39 SASR 410, 415. Thus, for example, if in an affidavit claiming privilege, a document were described as a confidential communication from the lawyer to the client, it would be readily capable of sustaining a claim for legal professional privilege on the ground that it was made for the dominant purpose of giving legal advice. On the other hand, eg, a claim would not, generally, be apparently proper if it involved a bare assertion of a protected dominant purpose, in relation to a document which, by the description given to it in the affidavit, had no apparent connection with giving or receiving legal advice or actual or anticipated litigation. Each claim will need to be considered on its merits. Also, the sufficiency of the evidence relied on by a party disputing the claim for privilege for the purpose of meeting its evidential onus will no doubt vary according to the ground of privilege claimed and the description of the document given, [70] ‑ [71].

   [23] See also Coal Hub Pty Ltd v NSL Consolidated Ltd [2016] WASC 203 [17] (Le Miere J).

3. The plaintiff submits that the defendant in this case bears the legal onus of establishing privilege.[24]  That onus, the plaintiff claims, is a heavy one and may be discharged 'by evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, or authored the document, or procured its creation' or 'by reference to the nature of the documents supported by argument or submissions'.[25]

   [24] AWB Ltd v Cole (No 5) [2006] FCA 1234; 155 FCR 30; Barnes v Commissioner of Taxation[2007] FCAFC 88.

   [25] AWB Ltd v Cole (No 5) [44] (Young J); see plaintiff's submissions filed 28 August 2020 [23].

1. Both parties accept that under RSC O 26 r 12(1)(a), in the absence of evidence to the contrary, an apparently proper claim to privilege will be sustained.[26]  The issue is whether the defendant has adduced sufficient evidence to make an apparently proper claim and, if so, has the plaintiff discharged its evidential burden to show that the defendant's claim is unfounded or mistaken.

Legal professional privilege

Dominant Purpose

[26] Defendant's submissions filed 28 August 2020 [6]; Plaintiff's submissions in reply filed 21 September 2020 [3].

1. Legal professional privilege takes one of two forms: advice privilege or litigation privilege.  The first limb covers communications between a lawyer and their client if they are confidential and for the dominant purpose of giving or obtaining legal advice.  The second limb covers confidential communications made, after litigation is commenced or is contemplated, between a lawyer and their client or third parties for the dominant purpose of the litigation.

2. In considering whether a communication is privileged, the question is what is the dominant purpose for which the communication was made?[27]  Dominant purpose does not mean the primary or substantial purpose,[28] but the prevailing or most influential purpose.[29]  If there are two purposes for which the document came into existence which are of equal weight, neither is dominant and the document is not privileged from production.[30]

   [27] Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49 [61] (Gleeson CJ, Gaudron and Gummow JJ), [173] (Callinan J).

   [28] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 678 (Barwick CJ).

   [29] Commissioner of Taxation (Cth) v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404, 416.

   [30] AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382 [106] (Young J) citing with approval Commissioner ofTaxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247 [30] (Kenny J).

3. In determining the dominant purpose of a document, the starting point is to ask what was the intended use of the document and why was it brought into existence?[31]  Ordinarily, the relevant purpose is that of the author of the document, although this is not invariably the case.[32]  The dominant purpose must be determined objectively, having regard to the evidence, the nature of the documents and the submissions of the parties.[33]  The question as to whether a document was brought into existence for the dominant purpose of obtaining legal advice is a question of fact.[34]

   [31] AWB v Cole[107] (Young J).

   [32] Grant v Downs, 677 (Barwick CJ).

   [33] Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [30] (Kenny J).

   [34] AWB Ltd v Cole [102] (Young J).

4. In considering whether a communication is seeking or giving legal advice, the court should not take a narrow view.[35]  In this regard, legal advice is not confined to providing advice on the law but includes advice 'as to what prudently and sensibly should be done in the relevant legal context.'[36]  It will be rare that a communication between a client and lawyer, once retained, is not connected with the request or provision of legal advice.[37]  It does not extend to advice that is purely commercial.[38]

   [35] Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325, 333 (Anderson J).

   [36] Balabel v Air-India [1988] 1 Ch 317, 330 cited with approval in DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191; (2003) 135 FCR 151 [21], [25] - [71] (Allsop J). See also Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd [No 2] [2009] WASC 150 [24] - [25] (Beech J).

   [37] DSE (Holdings) Pty Ltd v Intertan Inc [51] ‑ [52], [71]; cited with approval in AWB v Cole (No 5) [48] (Young J).

   [38] DSE (Holdings) Pty Ltd v Intertan Inc [45] (Allsop J).

5. Litigation privilege extends to protect from disclosure confidential communications passing between a client, their lawyer and third parties for the dominant purpose of use in, or in relation to, pending or anticipated proceedings.[39]  The requirement that the communication has the dominant purpose of giving or obtaining legal advice is not an element of the second limb provided the communications are in a litigation context. [40]

   [39] Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [39] (Kenny J); AWB v Cole [144] (Young J).

   [40] AWB v Cole [145] (Young J).

6. In relation to a multi-addressee email sent to various individuals including a lawyer for advice and comments, a different approach was taken in R (on the application of Jet2.com Ltd) v Civil Aviation and Authority (Law Society of England and Wales intervening) [2020] EWCA CIV 35; All ER 374. The approach taken, as summarised by Hill J in TEC Hedland v The Pilbara Infrastructure Pty Ltd,[41] was as follows:

   (a)in respect of a single multi-addressee email sent simultaneously to various individuals for advice or comment, including a lawyer for input, the purpose of the communication needs to be identified. In doing so, the court must take into account the wide scope of legal advice and the concept of 'continuum of communications'.  If the dominant purpose of the communication is to settle instructions to the lawyer, the communication will be covered by legal advice privilege even if the communication is sent to the lawyer by way of information or it is part of a series of communications with the dominant purpose of instructing the lawyer.  However, if the dominant purpose is to obtain the commercial views of the non-lawyer addressees, it will not be privileged even if a subsidiary purpose is to obtain legal advice from the lawyer;

   (b)the response from the lawyer if it contains legal advice will almost certainly be privileged even if it is copied to more than one addressee;

   (c)multi-addressee communications should be considered as separate communications between the sender and each recipient. Where the email seeks both legal advice and non-legal advice or input, those to and from the lawyer will be privileged but otherwise they will not be privileged unless the dominant purpose is to instruct the lawyer [26].

   [41] TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd (Hill J).

7. Accepting the correctness of this approach her Honour held '[t]his is because there may be different purposes in sending emails to each of the recipients of a multi-addressee email and it is necessary to consider which, if any, is dominant'.[42]

   [42] TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd [29] (Hill J).

8. The disclosure to persons in addition to a lawyer in a multi-addressee email was a factor in determining whether the advice was privileged at all namely, whether it was for the dominant purpose of seeking legal advice, not whether the inclusion of other persons waived an otherwise privileged document.

Capacity

1. Legal professional privilege will only apply if the legal practitioner received or created the communication in that capacity for the purpose of the client obtaining professional legal advice.[43]  

   [43] General Manager Workcover Authority (NSW) v Law Society (NSW) [2006] NSWCA 84 [72] (McColl JA, Handley & Hodgson JJA agreeing) and the authorities referred to therein.

2. In Waterford v Commonwealth of Australia (1987) 163 CLR 54 the High Court extended the privilege to in‑house lawyers where there was a professional relationship which secured to the advice of an independent character, notwithstanding the employment relationship between the lawyer and client.[44]

   [44] Waterford v The Commonwealth of Australia, 62 (Mason & Wilson JJ).

3. After an analysis of the judgments in Waterford v The Commonwealth of Australia, Charlesworth J in Martin v Norton Rose Fulbright (No 2) [2019] FCA 96, held:[45] 

   There is, however, majority support for the proposition that matters affecting a lawyer's professional detachment (which inherently include his or her loyalties to the client arising out of, for example, an employment relationship) will necessarily bear on the question of whether the lawyer is, with respect to the communication in issue, acting in his or her capacity as a lawyer as opposed to some other capacity.  The capacity in which the adviser is acting necessarily informs the dominant purpose of the communication in which privilege is claimed.  As has been said, that is an objective factual enquiry. It is not to be answered definitively by reference only to whether there exists a potential for abuse of the privilege, however strong that potential might be.

   The proposition that a lack of professional detachment on the part of an adviser will deny the entitlement to privilege must be rejected for a more fundamental reason: the privilege is that of the client, not the lawyer. Carried to its logical conclusion, the criterion of independence, as conceptualised by Brennan J in Waterfordand Branson J in Rich, could not be fulfilled in circumstances where the personal interest of the lawyer obviously conflicted with the interests of the client. A lack of independence of that kind may cause the lawyer's advice to be partial, incomplete or wrong and subject the lawyer to disciplinary sanction. But it is difficult to comprehend why, for the purpose of the common law of privilege, the lack of independence should deprive the relationship as one of lawyer/client and even more difficult to comprehend why the client's privilege in the communication constituting the advice should be lost, [187] ‑ [188] (original emphasis). 

   [45] This finding referred to as the 'independence' issue was not reversed on appeal Martin v Norton Rose Fulbright Australia [2019] FCAFC 234 [36] (Besanko, Flick & Abraham JJ).

4. Similarly, in Dye v Commonwealth Securities Limited (No 5) [2010] FCA 950 Katzmann J held:

   Thus, with the greatest respect, I doubt that the decision in Waterfordrequires anything more than that the legal adviser be professionally qualified and acting in a professional capacity. I note that in AWB v Cole (No 5)[2006] FCA 1234, 234 ALR 651 at 664 [44], to which her Honour did not refer, Young J considered that the question of independence involved no more than an inquiry into whether the lawyer was consulted in her or his professional legal capacity, although his Honour also pointed out thatsome cases have added a requirement that the lawyer who provided the advice must be admitted to practice [19].

5. In Archer Capital 4A Pty Ltd (as trustee for the Archer Capital Trust 4A) v Sage Group plc (No 2) [2013] FCA 1098, a proposed acquisition of the applicant's shares by the respondent failed to proceed. In the ensuing proceedings, objection was made in relation to privilege claimed over emails involving the respondent's company secretary and group legal director who was employed as in-house lawyer. Justice Wigney held:

   Were it necessary for me to decide, I would err on the side of concluding that there is no separate requirement of independence in the case of privilege claims where the relevant lawyer is an employed or in-house lawyer. The better view is that any requirement of independence on the part of an in-house lawyer is an aspect of the relationship between the lawyer and the employer (client) and the capacity in which the lawyer is consulted. Legal professional privilege will attach to a confidential communication between an employer and its employed solicitor if it is established that the communication arises as a result of the employer consulting the employed solicitor in a professional capacity in relation to a professional matter that arises from the relationship of lawyer and client [73].

6. In order to qualify as legal advice, the lawyer must make a communication in that capacity.  That question may be tested by reference to whether the disputed documents themselves demonstrate the application of the author's professional skills or 'technical legal skills'.[46]

   [46] General ManagerWorkcover Authority (NSW) v Law Society (NSW) [90] (McCall JA), [1] ‑ [2] (Handley & Hodgson JJ).

7. The terms of the retainer may be important to determine whether or not the lawyer's communications with their clients were brought into existence for the dominant purpose of giving legal advice.[47]  While there is no requirement that there be a retainer between the client and solicitor,[48] it is necessary to establish that a lawyer/client relationship exists.  In the absence of a retainer, a lawyer/client relationship is to be determined by reference to the intention of the parties objectively ascertained from which the existence of that relationship can be implied or inferred.[49]

   [47] General ManagerWorkcover Authority (NSW) v Law Society (NSW) [88].

   [48] Brookfield Multiplex Limited v International Litigation Funding Partner Pte Ltd (No 2) [19] (Finkelstein J).

   [49] Apple Computer Australia Pty Ltd v Wily [2002] NSWSC 855 [7] - [8] (Barrett J).

8. In Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd (No 2) [2009] FCA 449; 180 FCR 1, Finkelstein J explained that in order for a communication between a lawyer and client to qualify for advice privilege:[50]

   The usual criteria are that the communication must be: (a) confidential; (b) of a professional nature; and (c) made with the intention of obtaining or giving legal advice. The third proposition should be amplified. The advice given or sought need not be confined to matters of legal principle. It may include advice as to what should or should not be done in a 'relevant legal context' [3].

   [50] Approved in Perazzoli v BankSA [2017] FCAFC 204 [170] (Perram, Foster & Murphy JJ).

9. Finkelstein J went on to consider what kind of communication between a lawyer and a client with whom there is no retainer is protected by privilege:[51]

   If the communication is to the lawyer it will be privileged if it is confidential and provided to the lawyer in his professional capacity.  A communication may be so characterised in a variety of circumstances, most usually if the person believes he is consulting a lawyer in that capacity and his manifest intention is to seek legal advice or legal services.

   …

   In the case of a communication from the lawyer, in my view the following (non-exhaustive) rule is appropriate.  If a lawyer provides a person with unsolicited legal advice, the advice cannot be privileged.  It cannot be privileged because the communication is not made during the course of a professional relationship; nor can it be characterised as confidential.  If, on the other hand, the advice is given in pursuance of a request, whether express or implied, made of the lawyer in his professional capacity, or if the circumstances are such that the 'client' would reasonably expect to be given such advice, then it will be privileged [20] ‑ [21].

   [51] Brookfield Multiplex Ltd v International Litigation Funding Partner Pte Ltd approved in Perazzoli v BankSA [173] (Perram, Foster & Murphy JJ).

10. The question the Court was required to consider in Brookfield Multiplex Ltd v International Litigation Funding Partner Pte Ltd was whether privilege attached to communication between solicitors conducting class actions and persons who had registered their interest in participating in those actions.[52]  The law firm in question had prepared a shareholder class action and was seeking expressions of interests from shareholders to become class members upon which they would need to enter a retainer agreement.  These preliminary communications with registrants were held to be privileged, regardless of whether they entered into a retainer.[53]  In that instance the existence of a lawyer/client relationship was implied or inferred.

Communications with a third party

[52] Brookfield Multiplex Ltd v International Litigation Funding Partner Pte Ltd [1] - [13] (Finkelstein J).

[53] Brookfield Multiplex Ltd v International Litigation Funding Partner Pte Ltd [23] - [24] (Finkelstein J).

1. Normally, disclosure of protected content by the holder of the privilege causes the privilege to be lost.  This is because of the inherent inconsistency between failing to safeguard the confidentiality essential to privilege and, at the same time, seeking to maintain the immunity that the privilege confers.[54]  The onus on establishing waiver lies on the party seeking to displace the privilege, in this case the plaintiff.[55]

   [54] Marshall v Prescott [2013] NSWCA 152 [57], [65] (Barrett JA, Coll & Ward JJA agreeing) referring to Mann v Carnell[1999] HCA 66; (1999) 201 CLR 1 [28] - [29].

   [55] New South Wales v Betfair Pty Ltd (2009) 180 FCR 543 [53] - [54].

2. An exception operates where the person entitled to the privilege and the person to whom the content of the document is made known, have such a commonality of interest in relation to the subject matter of the privilege that sharing of the content is consistent, rather than inconsistent, with an ongoing intention to preserve confidentiality and privilege.[56] 

   [56] Marshall v Prescott [57] (Barrett JA, Coll & Ward JJA agreeing).

3. Common interest privilege is not a separate privilege but stands as an exception to the general rule that legal professional privilege does not attach to communications with, in the presence of, or shared with, third parties.  Communications must therefore be intrinsically privileged to deserve protection under a claim of common interest privilege.[57]

   [57] Woodings v WA Glendinning & Associates Pty Ltd [158] (Smith J).

4. In Marshall v Prescott [2013] NSWCA 152 the New South Wales Court of Appeal held where communications are made which involve disclosure to third parties, the proper approach is to determine by normal standards whether the document would be privileged in the hands of the party communicating the information, assuming no disclosure has been made. If it is found the documents would be privileged, the court must proceed to the second step which is to ask whether the relationship between the parties was sufficiently close that the transmission of documents should not be held to amount to an implied waiver of the privilege.[58] 

   [58] Marshall v Prescott [63] (Barrett JA, Coll & Ward JJA agreeing) adopting the approach of Hansfield Developments v Irish Asphalt Ltd [2009] IEHC 420 [53] (McKechnie J).

5. Marshall v Prescott considered common interest privilege in the context of litigation privilege and did not have to decide if it extended to legal advice privilege.[59]  However, common interest privilege is not limited to litigation or anticipated litigation.[60] 

Joint privilege 

[59] Marshall v Prescott [65] (Barrett JA, Coll & Ward JJA agreeing).

[60] South Australia v Peat Markwick Mitchell (1995) 65 SASR 72, 77 (Olsson J) applied in Lane v Admedus Regen Pty Ltd [2016] FCA 864 [29] (McKerracher J).

1. The plaintiff claims that in the event Category A and B documents are privileged, the claim cannot be maintained against the plaintiff on the basis the advice was obtained for the benefit of the Trust, of which the plaintiff was a beneficiary at the time the advice was sought and given.[61]

   [61] Plaintiff's submissions filed 28 August 2020 [44] - [45].

2. Legal professional privilege may be held jointly, such as where two or more persons communicate with a lawyer for the purpose of retaining his or her services or where two or more persons in a formal legal relationship communicate with a lawyer for the dominant purpose of obtaining or providing legal services (including giving or receiving legal advice or representation in legal proceedings).[62]

   [62] Schreuder v Murray [No 2] [64] (Buss & McLure JJA concurring).

3. Persons entitled to joint privilege may not maintain the privilege against each other.[63] 

   [63] Schreuder v Murray [No 2] [65] (Buss & McLure JJA concurring).

4. In Schreuder v Murray [No 2], the respondent was a beneficiary under her husband's will.  She commenced proceedings claiming her late husband failed to make adequate provision for her proper maintenance and support.  She sought the removal of the trustee and executor of the will.  During the course of the proceedings, the executor made claims of legal professional privilege over certain exhibits and tax invoices that had been referred to in affidavits filed by the executor but not served on the beneficiary. 

1. The primary judge held that no proper claim of privilege had been made over the documents.  The executor appealed to the Court of Appeal, which unanimously dismissed the appeal.

2. In the course of his Honour's reasons, Buss JA, with whom McLure JA concurred, stated that in this context, it was necessary to distinguish between:

   (a)legal proceedings by a beneficiary against the trustee where the cause of action is based on the trustee's alleged breach of duty in failing to provide the beneficiary with access to 'trust documents' or information; and

   (b)legal proceedings by a beneficiary against the trustee on other causes of action (that is, causes of action which are not based on the trustee's alleged breach of duty in failing to provide the beneficiary with access to 'trust documents' or information) and, in the course of the proceedings, the beneficiary makes an interlocutory application against the trustee for discovery and inspection of 'trust documents' which are relevant to the pleaded causes of action and in respect of which legal professional privilege exists as against strangers to the trust [92].

3. In relation to the second category of legal proceedings, Buss JA identified following relevant principles:

   (d)There will be a joint privilege if:

   (i)the confidential communications, information or documents relate to legal services in connection with the management or administration of the trust; and

   (ii)the trustee (in his or her capacity as trustee) and the beneficiary (in his or her capacity as a beneficiary, and either alone or as a member of a class of beneficiaries) have a joint interest in the subject matter of those confidential communications, information or documents when they occur or come into existence.

   (e)The joint interest of the trustee will derive from his or her duties to the beneficiaries or in respect of the trust fund, and the joint interest of the beneficiary will derive from his or her vested interest in the trust fund, in combination with the nature and character of the relevant communications, information or documents.

   (f)The beneficiary will not be entitled to a joint privilege with the trustee if the confidential communications, information or documents relate to legal services obtained for the benefit of the trustee personally (for example, if the trustee seeks legal advice as to his or her personal rights or liabilities in connection with an alleged breach of trust or threatened legal proceedings against him or her personally) [94].

4. The nature of the joint interest was similarly described by Pullin JA:

   A trustee is the trustee of property for the benefit of the beneficiaries of the trust. The trustee and beneficiaries have a correlative duty and interest in the proper administration of the trust. The duty of the trustee includes a duty to properly perform the trust by adhering to and carrying out the terms of the trust. The beneficiaries have an interest and, indeed, a right to compel proper administration of the trust. The trustee and the beneficiaries are in a 'formal legal relationship' and if the trustee obtains legal advice concerning the proper administration of the trust, then any legal professional privilege attaching to the advice obtained is the joint privilege of both the trustee and the beneficiaries. As such, the trustee and the beneficiaries, being entitled to joint privilege, may not maintain the privilege against each other [10].

5. Buss JA held that the documents related to legal advice obtained by the appellant for the purposes of the administration of the estate, and not for the benefit of the appellant personally, and that the appellant had not established that litigation with the respondent was in his reasonable contemplation.

6. If the advice was sought for the purpose of assisting a trustee to discharge its duty to administer the trust, in contrast to advice sought and obtained for its personal assistance, any privilege subsisting in the advice is held jointly by the trustee and all beneficiaries.[64] Persons entitled to the joint privilege may not claim it as against each other.

   [64] Krok v Szaintop Homes Pty Ltd (No 1) [2011] VSC 16 [31] (Judd J).

7. However, the joint privilege described in Schreuder v Murray [No 2] does not go as far permitting beneficiaries access to otherwise privileged legal advice where there are adversarial proceedings on foot,[65] or where the advice is sought in contemplation of proceedings between the beneficiary and trustee.[66]

   [65] Wood (as co-executor and trustee of the will of the deceased) v Wood [No 2] [2014] WASC 387 [20] - [22] (Kenneth Martin J).

   [66] Carr v Larussa [2018] WASC 176 [42] (A/Master Strk); see also Thomas v Secretary of State for India (1870) 18 WR 312.

8. The advice which is the subject of joint interest does not lose that character merely because it preceded action by one of the parties.[67]  It is necessary to focus on the relationship at the time the documents were created.[68]

   [67] Krok v Szaintop Homes Pty Ltd(No 1) [31] (Judd J).

   [68] Gray v BNY Trust Company of Australia Ltd [2009] NSWSC 789; (2009) 76 NSWLR 586 [54] (Bergin CJ (in Eq)).

9. The trustee in Schreuder v Murray [No 2] failed to establish that litigation between him and the beneficiary was in reasonable contemplation when the documents were brought into existence or when the legal advice was given or received.  The beneficiary had a vested interest in the trust estate and the subject matter of the legal advice.

10. However, in Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd [2011] VSC 477privileged advice obtained by the trustee of a unit trust was not held jointly with another unitholder on the basis the disputed documents came into existence when the parties were clearly engaged in conflict and the advice was sought in the trustee's personal capacity for its  own interests.

11. In Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd, Hue was the owner of land and engaged Dura to build apartments on that land.  Hue undertook the development as a trustee.  As well as being the builder, Dura owned units in the relevant trust.  In March 2006, Dura alleged Hue was in breach of the building contracts.  It was clear on the evidence that both parties anticipated legal proceedings would ensue and at all relevant times were represented by lawyers.  In 2006, Hue sought information for the purpose of obtaining legal advice in relation to the issuing of show cause notices as a contractual pre-condition for removing Dura from the project. Dura commenced proceedings in 2007 on the issue as to whether there had been any breach of contract to justify the issuing of show cause notices.

12. Dura sought to inspect documents provided to Hue between 2006 and 2009, on the basis that any legal professional privilege enjoyed by the trustee in relation to the documents was held jointly as the documents were made for the purpose of advising Hue in its capacity as trustee of the trust and for the proper administration of the trust. 

13. Macauley J reviewed the relevant authorities and in rejecting the claim of joint privilege, held:

    In my view it is plain beyond doubt that the position of Dura and Hue in this period was adverse and that, relevantly, they did not share any common interest in the legal advice which Hue was obtaining. In obtaining its legal advice, Hue was plainly acting in its personal interests. None of the advice was sought, either implicitly or explicitly, about its obligations as trustee under the trust but, rather, in connection with the personal interest of Hue as the owner under the building contract.

    The fact that Hue was, at all relevant times, the trustee of the trust was purely coincidental and its role as trustee had no bearing on the content of the legal advice it was given. This places the facts of this case in stark contrast with that of Krok's case on which Dura placed considerable reliance. Whereas, in that case Judd J said that the trustee's evidence and submissions did not explain why the advice did not relate to the administration of the trust, in this case it is clear that the trustee's evidence and submission does precisely that. Furthermore, applying the focus, referred to by Bergin CJ in Gray's case, on the relationship between the parties at the time the documents were created, there is no doubt that when the disputed documents were created the parties were engaged in clear conflict, each separately represented by lawyers and heading towards the commencement of the very litigation in which the parties are now engaged [30] ‑ [31].

14. In Krok v Szaintop Homes Pty Ltd (No 1) [2011] VSC 16 the court was asked to consider whether a trustee was entitled to maintain a claim for legal professional privilege against a discretionary beneficiary for inspection of four documents obtained under a search order. The claim of legal professional privilege was made by the trustee pursuant to s 118 of the Evidence Act 2008 (Vic). The claim failed, however Judd J also held that even if legal professional privilege did attach to the documents, inspection would have been permitted pursuant the common law principles of joint privilege:

    Assuming that the trustee's claim for client legal privilege is sustainable against the rest of the world, Ms Krok had a joint interest in the privilege in common with the trustee. That is because the advice sought and obtained by the trustee was in discharge of its obligation to administer the trust, and not for its own personal benefit [28].

    …

    The trustee submitted that there was no joint privilege because the documents did not contain legal advice or privileged material relating to the administration of the trust. It submitted that the advice was given or instructions sought in relation to matters anterior to a decision by the trustee to exercise a power. Thus, it argued, the discretionary beneficiary did not have a sufficient interest in the advice to support joint privilege. That submission would, if correct, mean that most, if not all advice sought and obtained by a trustee in anticipation of some action as trustee could be withheld from beneficiaries in litigation by raising a claim for client legal privilege, [30] ‑ [31].

15. In Krok v Szaintop Homes Pty Ltd (No 1), the trustee's evidence and submissions did not explain why the advice did not relate to the administration of the trust.  

Without prejudice privilege

1. The principles governing without prejudice privilege were articulated by the Full Court of the Supreme Court of Western Australia in Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11:

   Statements made without prejudice in an attempt to settle a dispute or action are privileged.  Without prejudice privilege is a joint privilege and thus cannot be waived without the consent of the negotiating parties.  The mere fact that a document is or is not marked "without prejudice" is not decisive.  The test is whether the communication was part of a genuine attempt to settle a dispute: Rodgers v Rodgers (1964) 114 CLR 608 at 614. If so, the whole course of the negotiations is privileged: South Shropshire District Council v Amos [1987] 1 All ER 340 [91].

2. Even where the words 'without prejudice' are not used, privilege will attach to communications which are made in the course of genuine negotiations with intent to compromise an existing dispute.[69]  The extent and purpose of the privilege was described in Field v Commissioner for Railways for New South Wales [1957] HCA 92; (1957) 99 CLR 285, by Dixon CJ, Webb, Kitto and Taylor JJ:

   As a matter of policy the law has long excluded from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation. The purpose is to enable parties engaged in an attempt to compromise litigation to communicate with one another freely and without the embarrassment which the liability of their communications to be put in evidence subsequently might impose upon them. The law relieves them of this embarrassment so that their negotiations to avoid litigation or to settle it may go on unhampered. This form of privilege, however, is directed against the admission in evidence of express or implied admissions. It covers admissions by words or conduct … But it is concerned with the use of the negotiations or what is said in the course of them as evidence by way of admission (291) – (292).

   [69]  Harrington v Lowe (1996) 190 CLR 311, 323

3. Field v Commissioner for Railways for New South Wales related to communications designed to compromise existing proceedings.  The communications covered, 'depends upon what formed part of the negotiations for settlement of the action and what was reasonably incidental thereto.'[70]

   [70] Field v Commissioner for Railways for New South Wales, 292.

4. The privilege will apply to communications in negotiations prior to the commencement of litigation.[71] In a situation where the parties have engaged in settlement negotiations in relation to a dispute, and have then become involved in a subsequent dispute, the privilege may be able to be asserted in the subsequent dispute if there is a sufficient connection between the first and second dispute.[72]

   [71] Harrington v Lowe, 323; Rodgers v Rodgers [1964] HCA 25; (1964) 114 CLR 608, 614.

   [72] Dowling v Ultraceuticals Pty Ltd [2016] NSWSC 386; (2016) 93 NSWLR 155 [35] – [37] (Hammerschlag J).

5. It will also prevent the use in evidence of admissions made by a party to a third party not a party to the negotiations, without the consent of the parties. In Yokogawa v Alstrom[2009] SASC 377, Duggan J held:

   The rationale for without prejudice privilege which is relied in authorities such as Rush & Tompkins, is equally applicable in cases where the negotiations and the litigation arise out of the same subject matter and the negotiations and settlement (if achieved) are of potential relevance to subsequent litigation between one of the parties the negotiation and a party involved in the litigation [84].

6. The privilege can extend to internal communications.  In Yokogawa v Alstrom the Full Court of South Australia held the privilege is not restricted to the actual communications with the other party to the negotiations but includes internal communications if they formed part of the negotiations for the settlement of the action or were reasonably incidental thereto.[73] 

   [73] Yokogawa v Alstrom, [104] - [105] (Duggan J).

7. The rule is not confined to admissions.[74]  It extends to all bona fide without prejudice statements which touch upon the strengths or weaknesses of the parties' case or place a valuation on a party's rights.[75]

   [74] Yokogawa v Alstrom, [100] (Duggan J).

   [75] D Heydon, Cross on Evidence (2020, 12^th ed), [25350].

8. The protection given to without prejudice communication is a protection from disclosure not just admission into evidence.[76]  In Cross on Evidence, in respect of whether the privilege extends to protection from inspection of discoverable documents, the learned authors state:[77]

   An affirmative answer is suggested by Whiffen v Cartwright (1848) 11 Beav 111; 50 ER 759; Black v Ocean Accident & Guarantee Co [1926] 2 DLR 985 (Man KB) and Rabin v Mendoza & Co[1954] 1 All ER 247; [1954] 1 WLR 271 (CA) (referred to without disapproval in Rush & Tompkins Ltd v Greater London Council[1989] AC 1280 at 1303–4; [1988] 3 All ER 737 at 742–3); Trade Practices Commission v Arnotts Ltd(1989) 88 ALR 69 at 74–5 (Fed C of A). This is perhaps strange, since inspection will reveal nothing new to the other holder of the joint privilege. Rush & Tompkins Ltd v Greater London Council[1989] AC 1280 at 1305; [1988] 3 All ER 737 at 744 is authority for the less controversial proposition that inspection need not be given to other parties in the proceedings who were not privy to the negotiations.

   [76] White v Overland [2001] FCA 1835 [91]; Rush & Tompkins Ltd v Greater London Council [1989] AC 1280, 1305.

   [77] D Heydon, Cross on Evidence (2020, 12^th ed), [25350].

9. In Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 the House of Lords having reviewed the authorities referred to above, did not have to decide if without prejudice privilege protected documents from inspection between the negotiating parties to the same litigation. Lord Griffiths held '…the wiser course is to protect 'without prejudice' communications between parties to litigation from production to other parties in the same litigation.' [78]

   [78] Rush & Tompkins Ltd v Greater London Council, 1305.

10. In Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 69, 75 Beaumont J held that discovery of without prejudice communication between the parties to a dispute amounted to a waiver of the right to object to its production on discovery, suggesting that without prejudice privilege, if claimed, is capable of protecting documents from both inspection by the other party and not just protection from being admitted into evidence.

11. It is still a question of fact as to whether privilege communications are sufficiently connected to the dispute to which they relate.

12. The contents of without prejudice communications cannot be put in evidence without the consent of both parties, the privilege being a joint privilege.[79]  Where negotiators to a failed attempt at settlement, who are or become parties to litigation, one of the parties cannot unilaterally waive privilege.[80]  The privilege would be worthless if one of the parties could waive it in subsequent litigation.[81] 

    [79] White v Overland [91].

    [80] Yokogawa v Alstrom [89] (Duggan J).

    [81] Yokogawa v Alstrom [86] (Duggan J).

13. However, there may be an implied waiver in subsequent proceedings involving one party to the without prejudice communications and a third party.[82]

    [82] Yokogawa v Alstrom [89] (Duggan J).

Personae

1. The question of the capacity in which advice was given, the independence of those giving the advice and the confidentiality of the communications are each in issue between the parties.  Therefore, it is necessary to refer to the role and position of the authors and recipients of the emails and their relationship to the parties and various entities that comprise of the Trust. 

Directors of the APMS Pty Ltd[83]	Unit holders/Shareholders
Ian Crockett  (Chair)	Fonty's Pool Farm Pty Ltd (Directors Ian Crockett, William Wemyss) [84]
George Ipsen	George and Shirley Ipsen Trustees G & S Ipsen Family Trust[85]
William French	French's Group 89 Pty Ltd (Director William French) Trustee of the Largs Bay Trust[86]
Jennifer Franceschi[87]	Karri Country Produce Pty Ltd (plaintiff)
Arkenstone Pty Ltd (Director Greg Solomon) Trustee of the GH Solomon Family Investment Trust [88]
March Bells Pty Ltd (Director Doug Solomon) Trustee of the DH Solomon Family Trust[89]

[83] Robertson affidavit [9], [13], [14].

[84]  Robertson affidavit [9] - [10].

[85] Robertson affidavit [13].

[86] Robertson affidavit [14].

[87]  Robertson Affidavit, annexure AJR-1: Ms Franceschi was a director from 12 October 2007 - 6 May 2019.

[88] Robertson Affidavit [11].

[89] Robertson Affidavit [12].

1. The directors of the defendant are Mr Ian Crockett, Mr George Ipsen, Mr William French and Ms Jennifer Franceschi.  Mr William Wemyss, Mr Greg Solomon and Mr Doug Solomon are not directors of the defendant.[90]  Both Greg and Doug Solomon are partners of the law firm, Solomon Brothers.[91]  Mr Brad Giles is the defendant's external accountant.[92]

   [90] Robertson Affidavit [11] - [12].

   [91] Robertson Affidavit [11] - [12]; Second affidavit of George Alexander Croft sworn on 14 August 2020 [11] - [12] (Second Croft Affidavit).

   [92] Robertson Affidavit [16].

Disposition in relation to legal professional privilege

1. The parties have indicated it is open to me to inspect the documents over which privilege is claimed to determine if the claim should be upheld. 

2. In Hancock v Rinehart [2016] NSWSC 12, Brereton J held:

   A claim for privilege must be made on sworn direct evidence, not inadmissible hearsay or opinion - proving the facts on which the claim is founded. This is unaffected by the court's discretionary power to require production in order to enable inspection for the purpose of adjudicating the claim, which exists to enable a claim for privilege to be scrutinised, not to enable it to be proved [35].

1. If the plaintiff makes an apparently proper claim for privilege, the plaintiff needs to discharge its evidentiary onus before inspection should occur.

Category A – Document 1644

1. Legal professional privilege is claimed over part of Document 1644.  This is described as an email chain between Greg Solomon, Ian Crockett, William French, George Ipsen, William Wemyss and Doug Solomon dated between 22 February and 13 March 2019.  Those parts of the email chain over which privilege is claimed is said, by Ms Robertson, to disclose communications made for the dominant purpose of seeking and providing legal advice to the directors of the defendant.[93]

   [93] Robertson Affidavit [20] - [21].

2. Specifically, Ms Robertson deposes:[94]

   (a)the second and third paragraphs in the email from Mr Ipsen to Mr Crockett and others dated 12 March 2019 records instructions to be provided to Doug and Greg Solomon to provide comment on legal issues raised by George Ipsen;

   (b)the penultimate sentence in an email from William French to George Ipsen and others dated 13 March 2019 refers to instructions to be provided to Doug and Greg Solomon;

   (c)the email from Ian Crockett dated 13 March 2019 contains a direct request for legal advice from Doug and Greg Solomon; and

   (d)the final email in the chain from Greg Solomon dated 13 March 2019 provides legal advice.

   [94] Robertson Affidavit [21].

3. Ms Robertson formed the belief that the redacted paragraphs are privileged after reviewing the files connected to this proceeding and other related matters.[95] 

   [95] Robertson Affidavit [5], [20] - [21].

4. I have inspected the unredacted parts of Document 1644 notwithstanding it is attached to the Confidential Affidavit.  The redacted version of the document would be available for inspection by the plaintiff and the plaintiff relies on the unredacted parts of Document 1644 in support of its submissions.[96]

   [96] Plaintiff's submission filed 28 August 2020 [58(d)], [72].

5. On inspection of the unredacted portions of Document 1644, I note the email from George Ipsen to Ian Crockett and others dated 12 March 2019 asks 'perhaps Solomon Bros could make comment on the legal issues?'.

6. The email chain includes emails from Stuart Moore of BDO Advisory (WA) Pty Ltd to Ian Crockett.  This email chain attached drafts of the BDO Report which were obtained for the purpose of redeeming the plaintiff's units.[97]

   [97] Second Croft Affidavit [16] - [17].

7. The email chain is not confined to the directors of the defendant (for example, William Wemyss, Greg and Doug Solomon are not directors of the defendant but they are connected to unit holders in the Trust).

Has the defendant made an apparently proper claim?  

1. The plaintiff's submission is that the defendant has failed to produce sufficient evidence to support a properly made claim of privilege.[98] 

   [98] Plaintiff's submissions filed 28 August 2020 [51].

2. The plaintiff's objections are:[99]

   (a)that there is no evidence that Mr Greg Solomon or Mr Doug Solomon were consulted in their professional capacities as lawyers and no evidence of a formal (or even an informal) retainer with either of them or Solomon Bros (the firm);

   (b)the evidence is not capable of establishing the dominant purpose for the creation of the communications;

   (c)the defendant's evidence does not depose to matters that would be necessary to assess whether Mr Greg Solomon and Mr Doug Solomon were acting in a capacity as independent legal advisers to the defendant. 

Absence of a retainer/professional capacity

[99] Plaintiff's submissions filed 28 August 2020 [52].

1. Neither party were able to direct me to any authorities which considered advice given by a party interested in a transaction who happens to be a lawyer, as opposed to advice given by an in-house lawyer, a lawyer employed by the client or a lawyer retained by the client.

2. It is common ground that the absence of a retainer between a client and a lawyer does not mean a claim of privilege between a lawyer and client must fail.[100]  It is also accepted that a lawyer may act in multiple capacities and independence is not a separate or necessary requirement for privilege to exist.[101] 

   [100]  Brookfield Multiplex Ltd v International Litigation Funding Partner Pte Ltd [19] (Finklestein J) approved in  Perazzoli v BankSA (Perram, Foster & Murphy JJ) [174]. See Plaintiff's submissions in reply filed 21 September 2020 [6]; Defendant's submissions filed 28 August 2020 [20].

   [101] Martin v Norton Rose Fulbright (No 2) [192] - [197] (Charlesworth J); Plaintiff's submissions in reply filed 21 September 2020 [11]; Defendant's submissions filed 28 August 2020, [25] - [26].

3. However, in the absence of a retainer, or where independence may be lacking, the existence of a 'lawyer/client' relationship will need to be implied or inferred.[102]  The plaintiff points to the lack of any evidence that any instructions given were on behalf of the defendant as weighing against the inference or implication of a 'lawyer/client' relationship in this matter.   Ms Franceschi for example, who is a director of the defendant, was not included in the email chain while Mr Wemyss and Mr Greg Solomon, who are not directors, were included.

   [102] Apple Computer Australia Pty Ltd v Wily [7] - [8] approved in Perazzoli v BankSA [169] - [174].

4. The fact that Mr Greg Solomon was associated with unit holders as well as being a lawyer, requires, according to the plaintiff, the defendant to depose to the capacity in which the advice was provided.  The plaintiff submits there is no evidence of who engaged Mr Greg Solomon to provide the advice or to whom the advice was provided, to the unit holders or to the defendant?  Further, the plaintiff submits that if the advice was to the defendant, there is no explanation of why one of the directors, Ms Franceschi, was not provided with the advice.

5. On review of the unredacted portions of the email chain, in particular the email from Mr Ipsen dated 12 March 2019 in which he requests Solomon Brothers to comment on the legal issues, I accept that the email supports Ms Robertson's evidence that it was legal advice that was sought, as opposed to financial, personal or commercial advice.

6. The issue is who is the client, in what capacity was the advice given and to whom, the unit holders or the defendant?  It is evidence from the unredacted portions of the email chain, that there is an email from Mr French dated 13 March 2019 to the directors of the defendant save for Ms Franceschi.  In addition, it was sent to Mr Wemyss and Mr Doug and Mr Greg Solomon who are not directors.  In that email, Mr French refers to the claims he asserts were made by Ms Franceschi at the last Board meeting in relation to the plaintiff's entitlements against the defendant.  Ms Robertson deposes that the redacted sentence refers to instructions to be provided to Doug and Greg Solomon.  The redacted sentence is followed with Mr French stating '[t]he profits for this year should be minimised as much as possible.'  The plaintiff relies on this as demonstrating that the interests of the unit holders in the valuation of the units were not the same, which therefore gave rise to a conflict between the interest between the plaintiff and the other unit holders. 

7. The plaintiff asserts there is no evidence that the instructions were given on behalf of and provided to, the defendant.[103] 

   [103] Plaintiff's submissions filed 21 September 2020 [8] - [10].

8. The Trust Deed is not in evidence. I am to determine the context in which these communications came into existence from the documents themselves, the nature of the dispute as described in the pleadings and the affidavit material filed in support of this application.

9. Where the communication is to a lawyer it will be privileged if it is confidential and provided to a lawyer in his professional capacity.  It can be characterised as privileged if the person believed he is consulting a lawyer in that capacity and his manifest intention is to seek legal advice.[104]  

   [104] Brookfield Multiplex Ltd v International Litigation Funding Partner Pte Ltd [20] (Finklestein J).

10. The lack of independence or absence of a retainer does not defeat a claim of privilege, provided the communication was for the dominant purpose of giving legal advice.[105] The request, as is evident from the unredacted portions of the document, was to Solomon Brothers.  I am satisfied the dominant purpose of the request was for legal advice.

    [105] Dye v Commonwealth Securities Limited (No 5) [19] (Katzmann J); Martin v Norton Rose Fulbright [2019] FCA 96 [187] - [188].

11. I am ultimately persuaded there is an apparently proper claim for privilege by the defendant by virtue of the fact these emails were created consequent upon the provision of draft versions of the BDO Report to the chairman of the board of the defendant, the final version of which, the plaintiff deposes, formed the basis for determining the value of the compulsorily redeemed units of the plaintiff by the defendant.[106]

    [106] Croft Affidavit [10].

12. The fact that these drafts were not provided by the defendant to Ms Franceschi and were provided to unit holders who were not directors, discharges the plaintiff's evidential onus that the claim may be unfounded or mistaken. 

13. An evidential burden is not a burden of disproof, or in this case, establishing the documents are not privileged. Rather, the evidential burden is the obligation to show that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue.[107]

    [107] Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 [665].

14. I consider my discretion to inspect the documents over which privilege has been claimed is enlivened.[108]  In this instance, the parties have agreed to the inspection of the Privileged Documents by the court. 

    [108] CTC Resources NL v Australian Stock Exchange [2000] WASCA 19; (2000) WAR 48 [52] (Owen & Steytler JJ).

15. I reviewed Document 1644 without its redactions and am satisfied the defendant is entitled to claim legal professional privilege over the redacted parts of the document.

16. I also accept that there was a commonality of interest between the directors of the defendant and the other unit holders to whom the advice was copied, Mr Wemyss and Mr Doug Solomon, so as not to cause the privilege for the purposes of obtaining legal advice to be lost.

17. Having decided the document is privileged the issue is whether the privilege is therefore jointly held with the plaintiff, which is dealt with later in these reasons.

Category B - Documents 1524, 1575, 1591 (Brad Giles Emails)

1. The Brad Giles Emails are a series of emails from 13 October 2018 to 15 October 2018 between Brad Giles and Greg Solomon and copied to George Ipsen, Ian Crockett and William French.[109] 

   [109] First Croft Affidavit, annexure GAC-1.

2. These emails were created approximately one month prior to the defendant resolving to compulsorily acquire the plaintiff's units and over a year before proceedings were commenced.  Document 1575 is said to be an email from Mr Greg Solomon to Mr Giles requesting information relevant to the value of the units of the Trust.  Document 1524 is Mr Giles' response and Document 1591 is Mr Solomon's response to Mr Giles.[110]

   [110] Robertson Affidavit [16] - [18].

3. Ms Robertson deposes that she was informed by Mr Greg Solomon and believes that the emails were sent for the purpose of obtaining information on a confidential basis, so that Mr Greg Solomon could provide legal advice to the Board of the defendant.  This was intended to assist the defendant in deciding whether to make a without prejudice offer to the plaintiff. [111]

   [111] Robertson Affidavit [19].

4. The plaintiff submits that this claim of privilege is unsupported by any evidence and is no more than verbal formula or bare conclusionary assertion of purpose.[112]

   [112] Robertson Affidavit [18].

5. Of themselves, and unlike the case with the Category A document, the basis upon which privilege is claimed relies on what Ms Robertson was informed was purpose of the emails.  Unlike the information in support of the Category A document, there are no facts from which to infer a 'lawyer/client' relationship, and in any event, if there was such a relationship, there is no evidence of any request for advice.  At best the Brad Giles' Emails comprise a request to the defendant's accountant by a unitholder, who happens to be a lawyer, for information relevant to the value of units.

6. I accept that for the purposes of attracting legal advice privilege 'legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.'[113]

   [113] Balabel, 330.

7. However, 'to extend privilege without limit to all solicitor and client communication on matters within the ordinary business of a solicitor and referable to that relationship [would be] too wide.'[114]

   [114] Balabel, 331.

8. More fundamentally, there is no evidence who is the client in this instance, and the request made and any response received is equally consistent with Mr Greg Solomon's commercial interest in the Trust. 

9. I am not satisfied the claim for privilege is made out.  In relation to inspection in Schreuder v Murray [No 2], Buss JA (McLure JA concurring) held:

   The person claiming legal professional privilege must prove that the information or documents in question are privileged. See Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 689 (Stephen, Mason & Murphy JJ).

   A claim of legal professional privilege is not established conclusively by the use of a verbal formula. See Esso [52]. A court may examine documents where there is a disputed claim. It should not be hesitant to exercise the power. Also, in appropriate cases, a court may permit cross-examination of a deponent of an affidavit claiming privilege. See Esso [52]; Grant, 689.

   However, a party who claims legal professional privilege must properly identify the basis on which the privilege is claimed. It is not appropriate for the party merely to assert the existence of the privilege, deliver the documents to the presiding judicial officer and request him or her to analyse them and determine whether there is a proper basis for the claim. In the present case, the learned judge, appropriately, refused the invitation of counsel for the appellant to embark on this task [60] ‑ [62].

10. In the absence of an apparently proper claim, I decline to inspect the documents to determine if there is any evidence to support the claim of privilege.  The challenge to the claim of privilege over the Brad Giles Emails is upheld.

Disposition in relation to Joint Interest

1. In relation to the Category A and B documents, the plaintiff asserts that the advice was not for the benefit of the defendant personally, rather it was obtained for the purposes of the administration of the Trust.[115]  Further, it is asserted there is nothing to suggest the advice was concerned with the Trustee's indemnity.[116]  If the defendant obtains legal advice concerning the proper administration of the Trust then any legal professional privilege attaching to the advice obtained is the joint privilege of the defendant and the beneficiaries.[117]  Persons entitled to joint privilege may not maintain the privilege against each other.[118]

   [115] Plaintiff's submissions filed 28 August 2020 [44].

   [116] Plaintiff's submissions filed 28 August 2020 [44].

   [117] Plaintiff's submissions filed 28 August 2020 [29].

   [118] Plaintiff's submissions filed 28 August 2020 [30].

2. The defendant submits that neither of the limbs required to establish a joint interest as set out in Schreuder v Murray [No 2] are satisfied.[119] The defendant asserts that the redemption of the unit holder's units does not relate to management or administration of the trust, rather it relates to the termination of the relationship between the trustee and one beneficiary.  The termination of that relationship does not affect the trust fund and is not a matter in which the plaintiff and defendant could have a joint interest. [120]

   [119] Defendant's supplementary submissions filed 21 September 2020 [14], [18].

   [120] Defendant's supplementary submissions filed 21 September 2020 [16].

3. Further, the defendant submits that as the valuation was obtained for the purposes of compulsorily redeeming the plaintiff's units, it is inherently not a matter in which the interests of the plaintiff and the defendant are aligned.  That is especially so where that issue had already been the subject of a dispute and ultimately resulted in the commencement of these proceedings.[121]

Category A – Document 1644

[121] Defendant's supplementary submissions filed 21 September 2020 [17].

1. According to the pleadings, the Trust Deed contained terms to the effect that a unit holder may receive notice that its unit holding may be redeemed, but before any redemption the Trustee must commission a valuation of the trust fund by an independent accountant or an expert valuer.  The Trustee must give all unit holders the details of the valuer appointed to enable unit holders to make submissions if they wish and a copy of the valuation is to be sent to all unit holders.[122]

   [122] Amended Statement of Claim filed 15 January 2021 [8(a)-(d)]; Further Amended Defence filed 19 February 2021 [8(a)-(d)].

2. While the valuation process does not affect the beneficiaries' unit holding, it still affects the value of the Trust, and the value of each unit holding. The amount payable to a unit holder was based on the calculation provided in the Trust Deed by deducting total liabilities of the Trust Fund from the Total Assets and then dividing by the number of units.[123]

   [123] Amended Statement of Claim filed 15 January 2021 [[8(a)-(d)]; Further Amended Defence filed 19 February 2021 [8(b)(i)-(ii)].

3. The redacted Category A email chain came into existence before the commencement of these proceedings.  No doubt there was acrimony between parties that led to the steps that were taken to redeem the plaintiff's units.  However, legal advice pertaining to the ultimate valuation is a matter which goes to the administration of the Trust and is clearly going to be of interest to the unit holders remaining in the Trust as well as the outgoing unit holder.  This was not a case where advice was obtained when there are adversarial proceedings on foot,[124] or where the advice was sought in contemplation of proceedings between the beneficiary and trustee,[125] or for the purpose of protecting the trustee's personal interests.[126]  It was related to the valuation report which had to be obtained in accordance with the Trust Deed before compulsorily acquiring the plaintiff's units. 

   [124] Wood (as co-executor and trustee of the will of the deceased) v Wood [No 2] [20] - [21] (Kenneth Martin J) 

   [125] Carr v Larussa [42] (A/Master Strk). See also Thomas v Secretary of State for India.

   [126] Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd [5], [30] (Macauley J).

4. If Document 1644 is privileged as against strangers to the Trust, the fact that these are communications for advice about the valuation of the Trust and the unit holdings, pursuant to a mechanism set out in the Trust Deed into which other unit holders have been copied, is sufficient, in my view, to discharge the plaintiff's evidentiary onus in establishing that the claim of legal professional privilege as against the plaintiff, at least, is unfounded or mistaken.

5. In my view, the legal advice sought by the Trustee and/or other beneficiaries in connection with the valuation for the purposes of redeeming a unit holder's interest in the Trust are communications related to the administration and management of the trust fund and satisfy the first limb of the test by Buss JA in Schreuder v Murray [No 2]. 

6. As to the second limb, the parties have a joint interest in the subject matter of those communications in Document 1644, as it relates to the valuation of the Trust. The parties do not have to agree as to how the Trust is administered to have a joint interest.  In Shreuder v Murray [No 2] for example, the parties were not in agreement about the disbursements made from the trust fund. 

1. If privileged against the rest of the world, the plaintiff has a joint interest with the other unit holders and the Trustee in the valuation of the unit holding for the purposes of any compulsory redemption and the advice sought on behalf of the defendant in relation to the same.  The privilege held by the defendant in relation to the Category A document is jointly held with the plaintiff.

Category B – Brad Giles Emails

1. If I am incorrect in my conclusion that there is no apparently proper claim of privilege in relation to the Brad Giles Emails that form Category B documents, I have considered whether the plaintiff could claim a joint interest.

2. The Brad Giles Emails are a request by Mr Greg Solomon for financial information from the Trustee's accountant sought on confidential basis to inform advice to the defendant in relation to making a without prejudice offer to buy the plaintiff's units.[127]  The defendant submits the making of a without prejudice offer to resolve a dispute with a unit holder does not relate to the management of administration of the trust.  It relates to a particular unit holder's interest in the trust, not the trust itself.[128]  Further, the subject matter of the advice related to resolution of a dispute between the parties is not a matter about which they can have a joint interest.[129]

   [127] Robertson Affidavit [16], [19].

   [128] Defendant's supplementary submissions filed 21 September 2020 [13].

   [129] Defendant's supplementary submissions filed 21 September 2020 [12].

3. For the reasons stated above I do not accept that the mere fact the unit holders are not agreed or in a dispute with each other, of itself, means a joint interest cannot exist.  If privileged, the question is whether the Brad Giles Emails relate to the legal services in connection with the administration of the Trust and whether the plaintiff, as a beneficiary, has a joint interest in the subject matter of the communications when they came into existence.

4. The Brad Giles emails predate the compulsory acquisition of the plaintiff's units pursuant to the mechanism under the Trust Deed and the ultimate commencement of proceedings in connection with that acquisition.

5. Like in Krok v Szaintop Homes Pty Ltd (No 1), there is insufficient evidence from which to form a view that information from the defendant's accountant about the value of the units does not relate to the administration to the trust nor why the parties would not share a joint interest in terms of any submission made to the defendant to pay out the plaintiff based on information from the defendant's accountant.

6. If the parties subsequently fall out and litigate, neither can claim privilege as against the other in respect of any documents that are caught by the joint privilege, as the original joint interest is not destroyed by the subsequent disagreement between the parties.[130]  

   [130] Thanki, B, The Law of Privilege (2018) 293.

7. Therefore, if I am incorrect in relation to the Category B documents and the exchange between Mr Greg Solomon and the defendant's accountant to obtain a value of the units for the purpose of purchasing the plaintiff's units, is in fact the subject of legal professional privilege, I find the privilege is held jointly by all unit holders.

Disposition ‑ 'without prejudice'

Category C - Documents 1637 and 1628

1. Document 1637 is an email dated 29 May 2018 between the chairperson of the board of the defendant and two other directors of the board.  The only director who was not copied in was Ms Franceschi.  The email is addressed to the plaintiff's lawyers.  Ms Robertson deposes it contains a without prejudice offer and that she is informed by Mr Ian Crockett that this is a copy of a without prejudice email he sent to Mr David Schirripa, the plaintiff's lawyer, at 10.45 am on 30 May 2018, a copy of which he has no longer.[131] I assume Document 1637 is a draft rather than a copy since it predates the email that in fact was sent.

   [131] Robertson Affidavit [24].

2. Document 1628 is an email dated 20 August 2018 from Mr Ian Crockett to Mr George Ipsen, Mr William French and Mr William Wemyss, in which Mr Crockett forwarded an email from Mr David Schirripa, marked 'Without Prejudice' and which contains a response to a without prejudice offer given by the directors of the defendant.[132]  Chronologically, Document 1637 predates Document 1628, although it is not stated if the response to a without prejudice offer is the offer referred to in Document 1637.

   [132] Robertson Affidavit [23].

3. The plaintiff asserts there is no evidence of the dispute to which the without prejudice communications relate, or that it is the same or substantially the same subject matter as the current proceedings.

4. I do not agree. The documents over which privilege is claimed were discovered in these proceedings. That at least provides a basis for inferring the defendant has formed a view the documents are relevant to this dispute.[133]  

   [133] Lampson v Fortescue Metals Group Ltd [No 2] [2010] WASC 217 [27].

5. Both documents predate the decision of the defendant to compulsorily acquire the plaintiff's units on 28 November 2018,[134] and predate the commencement of proceedings on 4 December 2019.

   [134] Croft Affidavit [8].

6. The decision to acquire the plaintiff's units compulsorily by the defendant at the meeting of 28 November 2018 was made within months of 'offers' referred to in Documents 1637 and 1628.

7. There is no basis on which to find these offers relate to another unidentified dispute between the parties. On the current state of the evidence, the most likely inference is that the offer was made to avoid compulsory acquisition and this provides a sufficient connection with the subsequent dispute.  The fact the current dispute raises issues with the validity of the process for valuation and for compulsory redemption of the units does not sever the connection with any earlier negotiations pay out the plaintiff for its unitholding.

8. The plaintiff relies on Dowling v Ultraceuticals Pty Ltdand Woodings v WA Glendinning & Associates Pty Ltd in support of the submission that where the plaintiff was a party to the original communication that was forwarded to the defendant, the defendant could not have had a legitimate expectation that it would not be used against it in the current proceeding. 

9. Both Dowling v Ultraceuticals Pty Ltdand Woodings v WA Glendinning & Associates Pty Ltd do not apply.  They relate to the assertion of privilege in later proceedings involving third parties.  Here the parties to the privilege communications and in the subsequent dispute remain the same.  The subject matter in dispute is the manner in which the plaintiff should cease to become a unitholder and compensated for its units.

10. The plaintiff submits the communications were not internal to the defendant nor reasonably incidental to negotiations such as to attract the protection in Yokogawa v Alstrom and CMA Assets Pty Ltd v John Holland Pty Ltd [No 2].  Providing copies of correspondence common to the parties to the other directors and unit holders, in the plaintiff's submission, could not be considered to be confidential and nor could there be any legitimate expectation it would not be used in the current proceedings.

11. Despite the artifice of protecting from production without prejudice communications that may be common to both parties, copies of the same communications forwarded to other directors and those connected with the unit holders of the Trust who have a common interest in the offers made and responses received, do not lose that protection because they are copies or forwarded to others.  If the offer was without prejudice, the defendant would have a legitimate expectation that drafts or copies of the same communication to other unit holders would not be used against it in any subsequent proceedings.

12. I am satisfied there is an apparently proper claim for privilege in relation to both Documents 1637 and 1628. 

Was the privilege waived?

1. The inclusion of unit holders who were not directors of the defendant is said, by the plaintiff, to be inconsistent with the maintenance of any privilege and any privilege is therefore waived.  There was a commonality of interest between the directors of the defendant and the other unit holders to whom the advice was copied, so as not to cause the privilege to be lost.

Conclusion in relation to WPP

1. The facts deposed to by Ms Robertson are sufficient to support an apparently proper claim.

2. Further, the act of forwarding without prejudice communications was not inconsistent with the maintenance of confidentiality in the without prejudice communication and did not amount to a waiver.

3. The question is whether the plaintiff has satisfied its evidentiary onus under RSC O 26 r 12(a) to establish that the claim is unfounded or mistaken. The court is entitled to look at any evidence before it that may be capable of raising doubts about the authenticity of the privilege claim.[135]  If the basis on which privilege is claimed is properly identified, it is open to the court to inspect the documents to gain a fuller understanding.[136]  The plaintiff submits that if the claim for privilege is upheld the documents should be examined to scrutinise and test the claim.[137]

   [135] CTC Resources NL v Australian Stock Exchange [39].

   [136] Yokogawa [113] (Duggan J, Sulan J agreeing).

   [137] Plaintiff’s submissions filed 28 August 2020 [93].

4. I have inspected Documents 1637 and 1628 and I am satisfied the claim of without prejudice privilege should be upheld.

Conclusion

1. In relation to the Category A email chain, the plaintiff's application is upheld for the reason that the legal professional privilege properly claimed by the defendant is held jointly by the parties and the unredacted version should be produced.

2. In relation to the Category B documents, the Brad Giles Emails, the plaintiff's application ought to be upheld on the basis that the defendant has not made an apparently proper claim for privilege. 

3. In relation to the Category C documents which are said to be protected by without prejudice privilege, the claim of privilege is upheld.

4. The parties should confer as to the appropriate orders including the costs of this application.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

LH

Associate to the Acting Principal Registrar McDonald

14 FEBRUARY 2022