Lamers v Lamers
[2017] VSC 760
•13 December 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S CI 2015 05124
| JOHANNES ANTONIUS LAMERS & ANOR | Appellants |
| v | |
| ANDREW JOHN LAMERS | Respondent |
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JUDGE: | ALMOND J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 September 2017 |
DATE OF JUDGMENT: | 13 December 2017 |
CASE MAY BE CITED AS: | Lamers & Anor v Lamers |
MEDIUM NEUTRAL CITATION: | [2017] VSC 760 First Revision 21 February 2018 |
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APPEAL – Privilege – Ruling of an Associate Judge – Waiver of client legal privilege – Lamers & Anor v Lamers [2017] VSC 165.
PRACTICE AND PROCEDURE – Privilege – Evidence Act 2008 (Vic) ss 117, 118, 119 – Privileged documents – Evidence Act 2008 (Vic) s 122 – Loss of client legal privilege – Issue waiver – Inconsistency - Whether or not a positive case or positive assertion pleaded in defence – Representations made by solicitor alleged in statement of claim – Whether waiver by disclosure of parts of a will - Essential character of documents – Dominant purpose test - Express or implied obligation not to disclose contents of documents.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr D Clough | M & K Lawyers Group Pty Ltd |
| For the Respondent | Mr P Caillard | Oakleys Legal |
HIS HONOUR:
This appeal arises out of a proceeding brought by Andrew John Lamers (‘Andrew’), against his uncle, Johannes Antonius Lamers (‘John’) and Orana Park Pty Ltd (‘OPPL’) in its own capacity and as trustee of the John Lamers Family Trust (‘Trust’). The dispute arises in relation to a dairy farming property known as Orana Park (‘the Property’), located near Leongatha in Victoria. In essence, Andrew alleges that in reliance on certain representations made to him[1] and as a result of a joint endeavour of conducting a dairy farming operation, Andrew acted to his detriment giving rise to his claim for equitable relief.
[1]In relation to the Trust and in relation to the contents of John’s will.
Andrew seeks relief in the form of declarations to the effect that John holds his interest in OPPL on trust for him in such proportion as the Court finds just and equitable and that OPPL holds its interest as registered proprietor of Orana Park on trust (including for Andrew) in such proportion that the Court finds just and equitable.
This appeal has its origins in a claim for legal advice and litigation privilege made by the defendants with respect to 73 documents discovered in the defendants’ supplementary affidavit of documents.[2]
[2]Supplementary Affidavit of Documents of Johannes Antonius Lamers, affirmed 8 August 2016, Application Book E390-E396, Exhibit 1.
An Associate Judge ruled that 24 documents (in whole or part) out of the 73 documents should be produced for inspection, and made orders accordingly.
The appeal relates to 20 of the 24 documents ordered to be produced.[3]
[3]Document 87 (only that part down to and including the first paragraph). 106, 107 and 123 are excepted. Notice of Appeal, dated 4 May 2017 [2], Application Book A1-A5, Exhibit 1.
There are five substantive grounds of appeal. The appellants (John and OPPL) contend that the Associate Judge:
(a) erred in law and fact:
(1)by finding that they put a positive case that the Property was owned by OPPL in its own capacity and thereby waived client legal privilege;
(2)by finding that they put a positive case that John Barlow, solicitor, had no actual authority to make the representations alleged in the statement of claim[4] and thereby waived client legal privilege;
(3)by finding that by disclosing parts of his will(s) that relate to the disposition of his shares in OPPL, John thereby waived privilege in relation to the disposition of those shares and the capacity in which OPPL owns the Property;
(4)by finding, in effect, that legal advice to John concerning his estate planning was not confidential insofar as it concerned the capacity in which OPPL held the Property;
(b)the learned Associate Judge erred in law:
(5) by holding that a response to a request cannot be confidential if the request was not confidential.[5]
[4]Statement of Claim, dated 30 September 2015, [7], Application Book C11-C28, Exhibit 1.
[5]Notice of Appeal, dated 4 May 2017, Ground 3(g), Application Book A1-A4, Exhibit 1.
Evidence Act
The Evidence Act 2008 (Vic) relevantly provides:
118 Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
(a)a confidential communication made between the client and a lawyer; or
(b)a confidential communication made between 2 or more lawyers acting for the client; or
(c)the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person—
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
119 Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
(a)a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b)the contents of a confidential document (whether delivered or not) that was prepared—
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
…
122 Loss of client legal privilege—consent and related matters
(1)This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.
(2)Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
I shall deal with each ground in turn.
Ground 1 – that the Associate Judge erred in law and fact by finding that John and OPPL put a positive case that the Property was owned by OPPL in its own capacity and thereby waived client legal privilege.
In her reasons, the Associate Judge relevantly states:
In their defence, the defendants deny that the Orana Park property is owned by the second defendant as trustee of the Trust and admit that it is owned by the second defendant in its own capacity. They go further and put a positive case that it is owned by the second defendant in its own capacity…[6]
…
… in the alternative, I consider that the privilege in those documents has been waived by the positive assertion by the defendants that the second defendant owns the Orana Park property in its own capacity i.e. by issue waiver.[7]
…
As set out earlier, I do not consider that John can claim legal advice privilege in documents related to the capacity in which the second defendants [sic] owns the Orana Park property, and there is no evidence to support the formal claim to privilege made by the second defendant. Documents relating to that issue are accordingly not privileged. If I am wrong in that conclusion on privilege, however I consider that the defendants have acted inconsistently with the maintenance of confidentiality in documents relating to legal advice to John about the capacity in which the second defendant owns the Orana Park property by assertion of their positive case…[8]
[6]Lamers v Lamers & Anor [2017] VSC 165, [52] (‘Reasons’).
[7]Reasons, [100].
[8]Reasons, [114]. In addition, reference is made to this ground in [72] of the reasons.
In his statement of claim, Andrew relevantly alleges:
9. The property:
(a)was purchased by Orana Park [OPPL] in its capacity as trustee of the John Lamers Family Trust and is an asset of the John Lamers Family Trust; or
(b)further and in the alternative, the Property was purchased by Orana Park [OPPL] in its own capacity.[9]
[9]Reference in parentheses added.
In their defence, John and OPPL deny the allegations in paragraph 9(a). They say further:
9(a)(i) the Contract of Sale made no reference to the John Lamers Family Trust;
(ii)The First Defendant is not aware of any reference to the John Lamers Family Trust in any documentation of nomination of the Second Defendant as substitute purchaser under the Contract of Sale;
(iii)At all material times the financial records and tax returns of the Second Defendant treated the Orana Park Property as being owned by the Second Defendant in its own right;
(iv)At all material times, the financial records and tax returns of the Second Defendant treated the income and expenditures associated with the Orana Park Property as being incomes and expenditures of the Second Defendant in its own right;
(v)At all material times, the Plaintiff in his capacity as a director of the Second Defendant, was aware or ought to have been aware of the manner in which the ownership of the Orana Park Property and the treatment of its associated income and expenditures were treated in the financial records and tax returns of the Second Defendant;
(vi)At no time has the Plaintiff raised any query or objection to the treatment of the ownership of the Orana Park Property and its associated income and expenditures in the financial records and tax returns of the Second Defendant;
(vii)At no time has the Orana Park Property, or income or expenditure associated with the Orana Park Property, been treated separately from other assets, income or expenditures of the Second Defendant;
(viii)No financial accounts or other documents of the John Lamers Family Trust treat the Trust as the beneficial owner of the Orana Park Property.
…
9(b)They admit the allegation in paragraph (9)(b).
The appellants submit that:
(i)they do not put a positive case that the Property is held by OPPL in its own right; and
(ii)none of the matters pleaded in paragraphs (9a)(i)-(viii) of their defence do anything other than support their denial of the respondent’s alternative allegation (in paragraph 9(a) of the statement of claim) that the Property was held on trust, and do not amount to the pleading of a positive case that the Property is held by OPPL in its own right, whether these matters are taken in isolation or together.
Further, they submit that the matters pleaded in paragraph 9 of the defence do not make any express or implied assertion about the character or contents of specific privileged communications and do not necessarily lay open to scrutiny any specific privileged communication.[10]
[10]Appellants’ Written Submissions, dated 4 August 2017, [23]-[27].
In summary, John and OPPL submit that they did not put a positive case that the Property is owned by the second appellant in its own capacity, and that they did not act inconsistently with the maintenance of the confidentiality of privileged documents by reason of the matters contained in paragraph 9 of the defence.
The respondent contends that her Honour correctly found, alternatively, that it was open for her to find, that the appellants put a positive case that the Property is owned by OPPL in its own right for the reasons given.[11]
Applicable principles[12]
[11]Respondent’s Written Submissions, dated 25 August 2017, [29]-[34].
[12]This summary is substantially derived from the Appellants’ Written Submissions, dated 4 August 2017, [9]-[17].
The applicable principles were not in issue and may be summarised as follows:
Issue waiver
(a)Issue waiver arises where there is: ‘Inconsistency, which the courts, where necessarily informed by considerations of fairness [not some overriding principle of fairness operating at large], perceive, between the conduct of the client and the maintenance of the confidentiality’: Mann v Carnell (1999) 201 CLR 1, [29], Gleeson CJ, Gaudron, Gummow and Callinan JJ. There is close alignment with the common law and s122 of the Evidence Act: Vic Hotel Pty Ltd v DC Payments Australasia Pty Ltd (2015) 321 ALR 191, [33], Dixon AJA (with whom Mandie and Beach AJA agreed). See also Boorman v Glaxo Wellcome Australia Pty Ltd [2017] NSWSC 576, [36]; Expense Reduction v Armstrong (2013) 250 CLR 303, [31]-[32].
(b)‘Quite specific inconsistency is necessary to establish waiver. Even reference to legal advice, without more, will not suffice. The inconsistency must be reasonably manifest’: Cantor v Audi Australia Pty Ltd [2016] FCA 1391, [99], Bromwich J; and see BrisConnections Finance v Arup Pty Ltd [2017] FCA 590, [31]-[33], Lee J.
(c)The critical issue is the nature of the inconsistency, between the act and the maintenance of confidence, that must be present for there to be issue waiver. Joining issue with an allegation is not consistent with maintaining privilege over documents that are relevant to that allegation: DSE (Holdings) v Intertan Inc (2003) 127 FCR 499, [114]-[122], esp. [115], Allsop J. His Honour went on to observe that various cases of issue waiver involved ‘a positive case being raised by the holder of the privilege’ (at [116]; see also Boorman v Glaxo Wellcome Australia Pty Ltd [2017] NSWSC 576, [38]-[40].
(d)Further, there is no issue waiver unless the holder of the privilege specifically puts in issue the contents of the legal advice by relying on it: Ferella v Official Trustee in Bankruptcy (2010) 188 FCR 68, [65], Yates J (approved by the Full Court of the Federal Court (Middleton, Robertson and Gleeson CJ) in Macquarie Bank Limited v Arup Pty Ltd [2016] FCAFC 117, [28]) (although the legal advice need not be pleaded: Macquarie Bank, [31]). See also CFMEU v De Martin & Gasparini Pty Ltd [2017] FCA 856, [25].
(e)The defendant must ‘deploy the substance or effect of the legal advice for forensic or commercial purposes’ to be inconsistent with maintenance of confidentiality that attracts privilege: Macquarie Bank, [18], quoting Bennett v Chief Executive Officer, Australian Customs Service (2004) 140 FCR 101, [68], Gyles J.
(f)The holder of the privilege must make an express or implied assertion, or bring a case, ‘which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny’: DSE Holdings, [58], Allsop J.
Analysis – Ground 1
Contrary to the finding of the Associate Judge, I am satisfied that the appellants do not put a positive case that the Property is held by the second defendant in its own right. The positive case is in fact put by the plaintiff. By their admission the defendants merely accede to the plaintiff’s allegation. There is no dispute between the plaintiff and the defendant on this issue.
The defendants take issue with the alternative case pleaded by the plaintiff to the effect that the Property is held by OPPL on trust. They deny the allegation and in that context set out further matters, namely that[13]:
[13]Defence dated 2 November 2015, Application Book, C29-C37, Exhibit 1, 9(a)(i)-(viii).
· the contract of sale made no reference to the Trust;
· John is not aware of any document nominating OPPL as substitute purchaser under the contract of sale;
· the financial records and tax returns of OPPL treat the Property as being owned by OPPL in its own right, and treat the income and expenditures associated with the Property as being incomes and expenditures of OPPL in its own right
· the income and expenditures associated with the Property have not been treated separately from other assets, income or expenditures of OPPL;
· no financial accounts or other documents of the Trust treat the Trust as the beneficial owner of the; and
· Andrew as a director of OPPL, was aware or ought to be have been aware of the manner in which the Property ownership and income expenditures were treated in the financial records and tax returns of OPPL and at no time has raised any query or objection to that treatment .
All of the further matters are responsive to the allegation that the Property was purchased by OPPL in its capacity as trustee of the Trust and is an asset of the Trust, and are pleaded to negate that allegation. Although each of these matters also appears to be consistent with the alternative case put by the plaintiff (that the Property is held by OPPL in its own right), in my view it is not accurate to say that the appellants have ‘put a positive case’ or made ‘a positive assertion’ to that effect.
For this purpose it is instructive to consider the nature of the documents and matters relied upon in the further matters set out in paragraph 9(a)(i)-(viii) of the defence. The defendants refer to the transaction documents related to the purchase of the Property, the financial and tax records of the Trust and Andrew’s failure to complain. None of these matters contain any express or implied assertions about the contents of privileged communications, nor do they necessarily lay open to scrutiny any privileged communication.
For completeness on this ground it is necessary to refer to the defendants’ notice of dispute. By their notice the defendants dispute the allegation that the second defendant purchased the Property in its capacity as trustee of the John Lamers Family Trust. This does not take the matter any further. The effect of the notice of dispute is simply to put the plaintiff on notice that the relevant fact is not admitted and it indicates to the recipient that it will be necessary to prove the relevant allegation. The failure to admit the fact does not raise a positive case to the contrary.
For all of these reasons, in my view the Associate Judge erred in law and fact in finding that the defendants had asserted the alleged positive case and thereby waived client legal privilege.
Accordingly, I uphold Ground 1 of the appeal.
Ground 2:(a) That the learned Associate Justice erred in law and fact by finding that the appellants put a positive case that John Barlow, solicitor, had no actual authority to make the representations alleged in the statement of claim and thereby waived client legal privilege; and
(b) If they did put a positive case it did not entail waiver and privilege over any document other than one disclosing any authorisation by the first appellant (John) to John Barlow to make the oral representations alleged in the statement of claim in paragraph 7.
In her reasons the Associate Judge relevantly states:
115The second relevant positive case asserted by the defendants is that Mr John Barlow did not have actual or ostensible authority to make the representations that Andrew alleges he made to him in or about April 1999 and October 2000 (as asserted in paragraph 9(a)(ix) of the defence). I accept the submission of the defendants that the privileged documents, which are communications between John and his former solicitors or internal documents of those solicitors, will not cast light on any ostensible authority, as ostensible authority is to be determined by external presentation to the world, not by internal communication with the principal. However, some of the privileged documents may cast light on whether Mr Barlow had actual authority to make any such representation.
116In relation to the documents in respect of which privilege has been waived by the assertion of the absence of actual authority, I accept the submission of the defendants that the scope is determined by authority to make representations to Andrew i.e. not by authority to take instructions from either or both of John and the second defendant and advise one or both of them generally. The case asserted is not expressly limited to representations to Andrew, as opposed to others (such as the accountants), but when read with the allegation in paragraph 7 of the statement of claim, I think it should properly be limited in that way.
117The formulation advanced by counsel for the defendants is that privilege is waived in respect of ‘any document otherwise privileged that discloses any authorisation by the first defendant to John Barlow to make the oral representations alleged in paragraph 7 of the statement of claim’. I consider this too narrow.
118First, I note that this formulation assumes that the representation that is identified in paragraph 9(a)(ix) of the defence (capacity in which the Orana Park Property is owned) is the same as the representations alleged in paragraph 7 of the statement of claim (as to becoming appointor under the Trust and the effect thereof). They are not expressly the same, but the defendants appear to concede that the representation as they express it was implied in the representations that Andrew says Mr Barlow made. The formulation advanced by the defendants is too narrow, however, in my view because:
• it is limited to the grant of authority to do a specific thing, not the implication of actual authority to do that thing, amongst others, that might properly be inferred from other conduct, for example other attendances by Mr Barlow on Andrew;
• it is limited to the grant of authority, not, for example content that discloses there was no such authority; and
• it is limited to the time at which the representations were said to have been made. Actual authority to make the representations, or the absence of such authority may be evidenced by conduct within a broader time frame.
119I note also that the formulation advanced by the defendants is confined to authority conferred by the first defendant, John, when the case advanced relates to both defendants. Andrew is, of course, a director of the second defendant and it may be that in that capacity he could give Mr Barlow, as solicitor for the second defendant, authority to discuss matters relating to the second defendant with himself. The parties have not, however, taken me to the Memorandum and Articles of Association of the second defendant, or any other matter that may illuminate this question.
120In my view, by the assertion that Mr Barlow did not have their authority to make representations to Andrew about the consequences of him becoming sole Appointor or the capacity in which the Orana Park Property is owned by the second defendant, the defendants have waived privilege in any communication or document that was otherwise the subject of legal advice privilege only:
• of any type, of any date, and by any author within Birch Ross & Barlow; and
• that refers expressly or implicitly to:
• Mr Barlow meeting or communicating with Andrew in relation to the Trust, the Orana Park Property or the operations of the second defendant;
• whether Mr Barlow had the authority of either of the defendants to do so; or
• what Mr Barlow had the authority to say or do at such a meeting;
121I confine this waiver to documents that are the subject of legal advice privilege because the privilege claim in respect of documents created for the purpose of this proceeding is not challenged. Further, there is no inconsistency in creating documents the subject of privilege under s 119 that refer to these matters. In the preparation for and response to litigation it is to be expected that documents will be prepared that refer to issues in the proceeding, and that is not inconsistent with the maintenance of the privilege over such documents - indeed it is entirely consistent with it.
122On scrutiny of the documents in respect of which privilege is challenged, the only documents or portions of documents that I consider fall within this description are as follows:
• A portion of Document 76 which relates to the authority of solicitors of Birch Ross & Barlow to make representations to Andrew in the period prior to 17 February 2010;
• A portion of Document 127 which implicitly relates to the authority of Mr John Barlow to communicate with Andrew in May 2014; and
• Portions of Document 140 which evidence the authority of Mr John Barlow to act in relation to ‘Orana Park’ and the Trust in February 2010.
123These portions of these documents are to be disclosed, in some cases for other reasons as well.
In the statement of claim, Andrew relevantly alleges:
7.On or about the time of executing the documents referred to in paragraphs 5 and 6 above, it was represented to Andrew by John Barlow on behalf of John that:
a.Andrew would become the sole appointor under the John Lamers Family Trust upon the death of John provided he met the conditions set out in paragraph 6(a); and
b.by becoming the sole appointor, Andrew would effectively inherit the Property referred to in paragraph 8 below [Orana Park] on the death of John.
(the Trust Representations)
Particulars
To the extent the Trust Representations were oral they consisted of the discussion between Andrew and John Barlow referred in the Particulars to Paragraph 6 above. To the extent they were written, they consisted of the documents referred to in paragraphs 5 and 6 above.
…
9. The Property:
a.was purchased by Orana Park in its capacity as trustee of the John Lamers Family Trust and is an asset of the John Lamers Family Trust;
…
In their defence, John and OPPL relevantly allege:
7(a) They deny the allegation that John Barlow made representations to Andrew on behalf of John.
(b) As to paragraph 7(a), they deny the allegations.
(c) As to paragraph 7(b), they deny the allegations. …
In paragraph 9(a)(ix) of the defence, John and OPPL allege if John Barlow made any representation (which is denied by John and OPPL) that the Property was held by the second defendant on trust for the John Lamers Family Trust, such representation was made without the first or second defendants’ actual or ostensible authority.
The appellants submit that they do not plead a positive case that John Barlow did not have authority to make the alleged representation; that the matters alleged in paragraph 9(a)(ix) are effectively a response to an allegation made against them rather than a positive case; that the respondent’s allegations are simply the antithesis of the allegation that John Barlow was authorised to make representations for John and that in substance the pleading reflects no more than a joinder of issue. Further, they submit that the pleading in paragraph 9(a)(ix) is not materially different from the denial of the matters alleged in paragraph 7(a).
Alternatively, the appellants submit that if they have made a positive case on this issue, the disclosure required by the Associate Judge was unjustifiably wide:
(a)because the proper formulation could not logically include authorisation by OPPL because OPPL could not make Andrew Appointor of the Trust and only John could authorise Barlow to make representations about who would ‘effectively inherit’ assets of his estate on his death;
(b)the proposed formulation was not limited to the ‘grant’ of authority;
(c)the proposed formulation was not ‘limited to the time at which the representations were said to have been made’; and
(d)the formulation found to be appropriate is excessively broad in comparison with the alleged positive case that Barlow did not have actual authority to make the representations alleged in the statement of claim in paragraph 7.
In essence the respondent contends that the Associate Judge correctly found that the appellants had made a positive case that John Barlow, solicitor, had no actual authority to make the representations alleged in the statement of claim, that there had been issue waiver resulting in the disclosure of documents, and that the disclosure ordered was appropriately confined in scope.
Analysis – Ground 2
In my view it was open for the Associate Judge to find that the appellants put a positive case that John Barlow had no actual authority to make the Trust Representations alleged in the statement of claim at paragraph 7 and to conclude that the reference to any representations in paragraph 9(a)(ix) of the defence implicitly cross-refers to the Trust representations (that is to say the defendants’ denial that any representations were made must include a denial that the Trust Representations were made). It follows that the allegation in the defence ‘if they were made they were not made on behalf of John’ relates to the representations alleged in paragraph 9(ix) and paragraph 7 of the statement of claim.
Paragraph 7 of the statement of claim includes the allegation that John Barlow on behalf of John represented that Andrew would become the sole Appointor under the Trust on the death of John provided he met certain conditions and, by becoming sole Appointor, would effectively inherit the Property.
By their pleaded defence the defendants take the position that if the first line defence fails (and it is found that representations were made purportedly on behalf of John), they will advance a case that the solicitor, Mr Barlow, had no authority to make the representations.
The Associate Judge considered that the defence takes issue with respect to whether Mr Barlow had authority to make representations to Andrew about the consequences of him becoming sole Appointor and also the capacity in which the Property is owned by OPPL and that this constitutes the making of a positive case on the issue of authority. In my view, this is a sound analysis of the pleadings.
The Associate Judge also gave careful consideration to the scope of waiver of privilege, accepting the defendants’ primary submission that the waiver should be limited to matters concerning the authority to make representations to Andrew rather than by reference to authority to take instructions from the defendants or to advise the defendants.[14]
[14]Reasons, [116].
The Associate Judge declined to accept the defendants’ secondary submission to the effect that, if privilege is waived, it is waived only in respect of privileged documents that disclose any authorisation by the first defendant to the solicitor John Barlow to make the oral representation alleged in paragraph 7 of the statement of claim. The Associate Judge considered this formulation to be too narrow. She noted that the proposed formulation assumes that the representation identified in paragraph 9(a)(ix) of the defence (which concerns the capacity in which the Property is owned) is the same as the representations alleged in paragraph 7 of the statement of claim (which concerns Andrew becoming sole Appointor under the Trust and the effect of Andrew becoming sole Appointor). Further, the Associate Judge noted among other things, that the proposed formulation was limited to documents which disclose the grant of authority and did not include documents that disclose that there was no such authority, and that it was too confined temporally because authority to make the representations or the absence of such authority might be evidenced by conduct over time rather than merely at the time at which the alleged representations were made. I see no error in the Associate Judge’s approach to the scope of waiver and her reformulation.
The Associate Judge scrutinised the relevant documents and found that portions of three documents should be disclosed. The first document relates to the authority of the solicitors to make representations to Andrew in the period prior to 17 February 2010. The second document (implicitly) relates to the authority of the solicitor Mr John Barlow to communicate with Andrew in May 2014, and the third evidences the authority of Mr Barlow to act in relation to the Property and the Trust in February 2010. Having myself examined the three documents, I am satisfied in my view that the disclosure required is not excessive. On the contrary, it is evident that the Associate Judge has taken considerable care to ensure that the disclosure is appropriately circumscribed.
For these reasons, it follows that the appellants do not succeed on Ground 2 of the appeal.
Ground 3 – that the Associate Judge erred in law and fact by finding that by disclosing parts of his will(s) that relate to the disposition of his shares in OPPL, John thereby waived privilege in relation to the disposition of those shares and the capacity in which OPPL owns the Property.
In her reasons, the Associate Judge relevantly states:
98. … John has shares in the second defendant, and so communications about the disposition of those shares concern his personal assets and I accept that those discussions would ordinarily be confidential and privileged. However, John has provided to the plaintiff those portions of executed wills which concern the disposition of those shares. Accordingly, the privilege in relation to the disposition of his shares on his death in executed wills at least has been waived. I do not consider that by this disclosure he has necessarily waived his privilege in relation to instructions or advice about the disposition of his shares on his death, prior to execution of the relevant will. However, in some instances I require production of communications touching on these instructions or advice, but for other reasons (for example, because the communications relate to the capacity in which the second defendant owns the Orana Park Property or disclosure of them is necessary to understand the disclosed wills).[15]
…
113. He has provided the plaintiff with those portions of his wills as executed, and the whole of the wills were confidential to him. I do not think that this disclosure is necessarily inconsistent with continuing to assert his confidentiality in the instructions he gave and advice he received in relation to the changes. There are, however, some documents or portions relating to draft dispositions of his shares that I consider should be disclosed because their disclosure is necessary for a proper understanding of the concluded will. This disclosure is pursuant to s 126.[16]
[15]Reasons, [98].
[16]Reasons, [113]. See also paragraphs [128] and [129].
The appellants submit that the Associate Judge erred by assuming that the relevant unredacted parts of the wills which had been disclosed were privileged and that privilege had been waived to the extent of their disclosure. In short, they submit that there must be an initial waiver of privilege for derivative waiver to occur. The appellants submit they had never asserted a claim for privilege (client legal privilege) over the unredacted parts of the wills and that the wills had been partly redacted on the basis that the redacted information was irrelevant to the proceeding and was confidential. The unredacted parts were disclosed because they were relevant, albeit also confidential.[17]
[17]There is a secondary argument based on the operation of s 126 of the Evidence Act 2008 (Vic) to the effect that the redacted communications or contents were not reasonably necessary to enable a proper understanding of the unredacted portion. It is unnecessary to address this point if s 126 of the Evidence Act 2008 (Vic) does not engage.
Though there was no formal concession, it is fair to say the respondent had difficulty opposing this ground of appeal.
Analysis – Ground 3
This is a short point. The reasoning of the Associate Judge in this respect is dependent on the application of s 126 of the Evidence Act which concerns loss of client legal privilege in circumstances where it is necessary to adduce evidence of a privileged document to enable a proper understanding of another communication or document. In this case no claim for privilege was made with respect to unredacted portions of John’s wills. The unredacted parts of the wills were discovered in Part 1 of Schedule 1 of the defendants’ affidavit of documents dated 15 January 2015.[18] They were not included in documents enumerated in Part 2 of Schedule 1 which listed documents over which privilege was claimed.[19] It is evident from correspondence passing between the solicitors for the appellant and the solicitors for the respondent that John maintained that he should be permitted to maintain the confidentiality of his testamentary wishes to the extent that those wishes are irrelevant to the proceeding.[20] This basis for resistance to disclosure is also evident from a ruling made by the Associate Judge on 24 May 2016. In her reasons, the Associate Judge upheld the defendants’ objection to disclosure of the redacted parts of the wills on the basis of relevance (not privilege).[21]
[18]Affidavit of Documents sworn by Johannes Antonius Lamers on 15 January 2015, [19] of Schedule 1, Application Book E143-E148, Exhibit 1.
[19]Affidavit of Documents sworn by Johannes Antonius Lamers on 15 January 2016, [3](b) and [19] of Schedule 1, Application Book E131-E147, Exhibit 1. The original last will and testament of Johannes Antonius Lamers is found enumerated in Part 2 of Schedule of the appellants’ affidavit of documents dated 15 January 2015. Paragraph 3(b) of that affidavit discloses that the basis for the objection to production was that they contained information which is not relevant to the issues the subject of these court proceedings. Application Book E31[3(b)], E147, [25], Exhibit 1.
[20]Disclosure between the defendant’s solicitors and the plaintiffs’ solicitors in March 2016, Application Book E372-E374, Exhibit 1.
[21]Associate Judge’s reasons dated 24 May 2016, [2], [5] and [7].
That being the case, I accept the defendants’ submission that the Associate Judge erred when she subsequently treated the unredacted portions of John’s wills as confidential documents over which privilege had been claimed.
Accordingly I uphold Ground 3 of the appeal.
Ground 4 – that the Associate Judge erred in law and fact by finding, in effect, that legal advice to John concerning his estate planning was not confidential insofar as it concerned the capacity in which OPPL held Orana Park.
In her reasons the Associate Judge relevantly states:
93.I identified earlier two principal issues that arise on the re-opened question of privilege. The first is whether on examination it appears that documents said by Ms Tyson to be confidential because they relate to John’s personal assets and the question of their disposition after his death, are in fact properly so described. If on scrutiny they are not, then there is no other basis on which legal advice privilege is supported. Ms Tyson does not depose that any of the documents were confidential to the second defendant, or that they relate to confidential legal advice given to John on any other topic, other than this proceeding i.e. litigation privilege.
…
95First, this issue arises in relation to documents, or portions of documents, relating to the Trust. The assets of the Trust are not John’s personal assets. He is, however, the current sole Appointor of the Trust. The power to determine who will be Appointor or Appointors on his death may not strictly be a personal asset, but I think that it sufficiently falls within that description for advice to him on that topic to be regarded as confidential to him.
96Accordingly, I will draw a distinction in relation to privilege between documents, or portions of documents, relating to the Trust that concern who the Appointor is to be on John’s death, and those that relate to the assets of the Trust. In respect of the first category, unless there is some other reason not to accept Ms Tyson’s evidence that the documents are confidential, I will do so and they are privileged. However, an issue of derivative waiver may then arise because he has provided the concluded forms of some at least of the various variations of the Trust to Andrew, even where Andrew has not executed the variation.
97In respect of documents relating to assets of the Trust, I do not consider that the evidence supports the claim that they are confidential to John.
98Secondly, the questionable use of the term ‘estate planning’ also arises in relation to the ownership of shares in the second defendant. John has shares in the second defendant, and so communications about the disposition of those shares concern his personal assets and I accept that those discussions would ordinarily be confidential and privileged. However, John has provided to the plaintiff those portions of executed wills which concern the disposition of those shares. Accordingly, the privilege in relation to the disposition of his shares on his death in executed wills at least has been waived. I do not consider that by this disclosure he has necessarily waived his privilege in relation to instructions or advice about the disposition of his shares on his death, prior to execution of the relevant will. However, in some instances I require production of communications touching on these instructions or advice, but for other reasons (for example, because the communications relate to the capacity in which the second defendant owns the Orana Park Property or disclosure of them is necessary to understand the disclosed wills).
99Thirdly, the use of the term ‘estate planning’ arises in relation to the capacity in which the second defendant owns the Orana Park Property. Many of the documents over which legal advice privilege is claimed concern this issue. The Supplementary Affidavit of Documents is expressed to be on behalf of both defendants, and so the privilege claim is also formally made by the second defendant. However, the evidence to support the claim is given by Ms Tyson and she claims that the confidentiality is that of John, and is in relation to his personal assets. The second defendant is a distinct legal entity from John, although he is the majority shareholder. The assets of the second defendant are not John’s assets. Ms Tyson does not depose that documents relating to the assets of the second defendant are confidential to it. Further, if the second defendant owns the Orana Park Property as trustee for the Trust, then those communications concern assets of the Trust. Accordingly, I do not consider that documents or portions of documents relating to the capacity in which the second defendant owns the Orana Park Property are privileged.
The appellants concede that documents solely relating to the assets of OPPL are not confidential to John and are therefore not privileged. Documents of this kind are not the subject of this appeal.[22]
[22]Paragraph [2] of the Notice of Appeal dated 4 May 2017, Application Book A1-A5, Exhibit 1, excludes documents within this category.
The appellants submit that the character of the documents which the appellants claim are privileged is critical, and that:
· properly characterised, they comprise advice given to John as to how he disposes of his share or appoints an appointor, which contains as part of its subject matter reference to the property owned by OPPL;
· the essential character of the documents over which privilege is claimed is legal advice to John, not to OPPL;[23]
[23]T 12, [5]-[16].
· her Honour’s conclusion that she does not consider the documents or portions of documents relating to the capacity in which the second defendant owns the Property to be privileged is misconceived because it focuses on the question of the capacity in which the second defendant owns the Property rather than on the character of the documents themselves;
· the documents concern confidential legal advice given to John concerning the manner in which he disposes of his shares or appoints appointors to the Trust; and
· the mere reference to property owned by a third party within the document does not change the character of the communication as having with it an implied or express obligation of confidence pursuant to s 117.[24]
[24]T 12, [30]-[31] – T 13, [1]-[15].
The respondent submits that it is obvious that no privilege attaches to documents other than those that were created for John’s estate planning and that:
· merely because John’s name appears on the top of the document does not mean it is automatically referable to John’s estate planning;
· it may be that a document relating to the ownership of the assets by OPPL is not necessarily to do with John’s estate planning, that it could be in relation to the Trust, where different considerations apply; and
· the Trust Deed does not confer a power on the Appointor (John) to appoint an Appointor in his place or at all.
Analysis – Ground 4
In my view, significant weight must attach to the unchallenged evidence of Ms Tyson, the legal practitioner, who deposes in her affidavit of 11 November 2016 of her longstanding professional relationship with John, having first performed legal services for him through the law firm Birch Ross & Barlow (‘BRB’) in approximately 1999. Ms Tyson deposes that:
(a) the majority of the work she performed for him was ‘estate planning work in relation to how Mr Lamers intends to deal with his personal assets following his death’;[25]
(b) certain BRB files were opened in John’s name and were for his personal estate planning;[26] and
(c) none of the files were opened in the name of OPPL or for John in his capacity as a director of OPPL.[27]
[25]Affidavit of Nicole Jane Tyson, sworn 11 November 2016, [6], Application Book, E480-E488, Exhibit 1.
[26]Affidavit of Nicole Jane Tyson, sworn 11 November 2016, [14(a)], Application Book, E480-E488, Exhibit 1.
[27]Affidavit of Nicole Jane Tyson, sworn 11 November 2016, [14(b)-(c)], Application Book, E480-E488, Exhibit 1.
Ms Tyson ceased to act for John in relation to the dispute over the Property on 2 April 2016 when new solicitors for John filed a notice of change of practitioner.
To enable Ms Tyson to review the defendants’ supplementary discovery, John’s new solicitors, Macpherson & Kelly, provided Ms Tyson with John’s supplementary affidavit of documents dated 8 August 2016 and copies of the documents referred to in the affidavit. Ms Tyson organised the documents into groups.
Relevantly, Group 3 is characterised as ‘BRB Memorandum and Attendance notes’.[28] In this group are documents which the appellants say are privileged and should not be required to be disclosed.
[28]Affidavit of Nicole Jane Tyson, sworn 11 November 2016, [19(c)], Application Book, E480-E488, Exhibit 1.
Ms Tyson sets out a description of Group 3 documents as follows:
Group 3 – Typed BRB Memorandums and Attendance Notes
33. The documents within Group 3 fall into three different categories:
(a)memoranda and attendance notes where I am either the author of the document (documents 76,81,89,100,105,107, 111, 112 and 117);
(b)memoranda which were drafted by employees of BRB and addressed to me (documents 80, 96 and 97); and
(c)memoranda prepared by persons other than me but for Mr Lamers and recording the confidential documents held in Mr Lamers’ files at BRB (documents 106, 121, 122 and 123).
34.From my involvement in the creation of the documents or their subject matter and from my general knowledge of BRB’s involvement in matters concerning Mr Lamers’ assets and estate planning affairs, all of these documents were prepared for internal use at BRB for the dominant purpose of providing legal services to Mr Lamers in his personal capacity and I do not believe they were ever provided to Mr Lamers directly or to any other person other than employees of BRB.
35.In relation to the documents and attendance notes authored by me or which relate to a meeting at which I was present, these documents were prepared for the dominant purpose of providing or containing legal advice to Mr Lamers.
36. These documents contain:
(a)instructions and detailed explanations given by Mr Lamers in relation to how he intended to deal with his personal assets in the administration of his estate, these were recorded to ensure that Mr Lamers testamentary wishes were accurately reflected in any documents produced by BRB; or
(b)in addition to Mr Lamers’ testamentary wishes, in the case of a number of the later memoranda, his instructions and detailed explanations in relation to the current disputes with Andrew Lamers, with the dominant purpose of recording the facts as understood by Mr Lamers so as to enable BRB to provide legal advice and services to him in connection with those disputes.
37.The memoranda produced by employees of BRB and addressed to me record confidential instructions given by Mr Lamers as to his testamentary wishes in relation to his estate planning documents. The memoranda also include a detailed itemised list of work performed for Mr Lamers by BRB and is a record of the work carried out by BRB for Mr Lamers in relation to the file on which that memorandum appears.
In order to determine this ground I consider it is necessary to examine the relevant documents. I disregard documents 106, 107 and 123, as the findings with respect to these documents are not challenged on appeal. It remains for me to examine handwritten and typed documents relevant to this ground, namely documents which relate to the capacity in which the Property is owned. With respect to each of the handwritten file notes of Ms Tyson (documents 77, 88, 98 and 101), Ms Tyson deposes that her dominant purpose for recording the information contained in these documents was to:
(a)assist in the preparation, variation, and execution of John’s estate planning matters to ensure that his testamentary wishes and any explanations he gave in relation to his personal assets and affairs were correctly recorded and applied when BRB gave him legal advice or performed legal services for him; and
(b)accurately record the instructions and explanations given by John in relation to the Property so that BRB could advise John in relation to his rights concerning his personal interests.
Further, Ms Tyson deposes that all of these documents were internal file notes kept by BRB on John’s file. In relation to the typed BRB memorandum attendance note (document 76), Ms Tyson deposes that the documents were prepared for internal use at BRB for the dominant purpose of providing legal services to John in his personal capacity; that in relation to the attendance notes relating to the meeting at which she was present, the documents were prepared for the dominant purpose of providing or containing legal advice to John.
It is clear to me that the dominant purpose so described is likely to involve a process of identifying and verifying what John’s personal assets were at the relevant time. The capacity in which the second defendant owns the Property is integral to determining John’s personal assets. It follows in my view that communications to John which concern assets of the Trust are likely to be inextricably part of the advice given to him with respect to his personal assets, incorporating advice given to him with respect to his estate planning.
With this in mind, I scrutinised each of the above documents. I am satisfied that documents 76 and 77 explicitly relate to estate planning for John and references to the Property should be seen in that context. Ms Tyson deposes that the relevant page headed ‘Thoughts arising out of a letter dated 9 July 2014’ is in handwriting of John Barlow. She deposes that she has reviewed the content of the relevant page in the context of the rest of the file note and expresses the belief that the purpose for recording information contained in the document was:
(a)to assist the preparation, variation and execution of John’s estate planning matters, to ensure that his testamentary wishes and any explanations he gave in relation to his personal assets and affairs were correctly recorded and applied when BRB gave him legal advice or performed legal services for him; and
(b)to accurately record the instructions and explanations given by John in relation to the Property so that BRB could advise John in relation to his rights concerning his personal interests.
Further Ms Tyson deposes that this document is an internal file note kept by BRB on John’s file, and that although the document was prepared for his benefit, he was unlikely to have been provided with a copy of the document while BRB was performing estate planning work for him. Further, she deposes that from her discussions with John when taking file notes regarding his testamentary wishes and how he wished to vary his estate documents, those matters and documents were confidential and she believed John Barlow understood that also.[29]
[29]Affidavit of Nicole Jane Tyson, sworn 11 November 2016, [22(b)], [25], [26] and [27], Application Book, E482-E483, Exhibit 1.
In my view, this handwritten document taken together with the evidence by affidavit squarely satisfies the statutory test in s 118(c) of the Evidence Act. In this case, the solicitor has recorded his thoughts on a handwritten document which has been kept on the client’s file plainly in circumstances where it was meant to remain confidential. It reflects the development of advice or clarification of thought concerning the affairs of the client. I am satisfied that Ms Tyson’s evidence in relation to these documents satisfies the requirement that the document is a confidential communication prepared for the dominant purpose of the lawyer providing legal advice to the client.
Document 98 is a handwritten file note written by Ms Tyson. The document falls within the class which comprises her handwritten notes of attendances on and conversations with John, or his representatives on his behalf. In this case the note of attendances is of a conversation with a Mr Tim Bolge. Ms Tyson deposes that her dominant purpose for recording the information contained in the document was to assist in the preparation, variation and execution of John’s estate planning matters, to ensure that his testamentary wishes and any explanations he gave in relation to his personal assets and affairs were correctly recorded, and applied when BRB gave him legal advice, or performed legal services for him.[30]
[30]Affidavit of Nicole Jane Tyson, sworn 11 November 2016, [25], Application Book, E479-E488, Exhibit 1.
In my view, the content of the document is consistent with Ms Tyson’s description. The fact that the Associate Judge notes that it relates (in part) to the capacity in which the Property is owned, is not inconsistent with the document having come into existence for the dominant purpose described by Ms Tyson; namely, to verify explanations given in relation to John’s personal assets and affairs so that accurate legal advice could be given to him.
Document 101 is a handwritten file note written by Ms Tyson. This document had privilege upheld as to part, but not in relation to the capacity in which the Property is owned. In my view, privilege should be upheld in relation to the whole of this note. The upper part of the note (where privilege was upheld) clearly relates to instructions being taken about testamentary wishes, including, it would seem, the residue of John’s estate. The note commencing ‘rent $60 pa’ referred to by the Associate Judge (where privilege was not upheld) consists of an elaboration of the previous note and reflects a perception of the accounting position with respect to rental at that time. To express the matter obliquely (as I must to avoid unnecessary disclosure in these reasons), the relevant financial position needs to be understood for the purpose of ascertaining the monetary value of any testamentary benefit being considered. Again, the mere fact that there is a reference to the perceived capacity in which the Property is owned does not detract from the character of the handwritten document as a confidential communication to which legal advice privilege applies.
For these reasons, in my view, the Associate Judge erred in law and fact by finding that extracts in the solicitor’s file notes that relate to the capacity in which the Property is owned are not privileged. Accordingly, I uphold Ground 4 of the appeal.
Ground 5 – that the Associate Judge erred in law by holding that a request cannot be confidential if the request is not confidential.
In her reasons, the Associate Judge relevantly states:
105.Document 91 is already disclosed, and no longer claimed to be confidential and so privileged. Document 91 is a request for an appraisal of three properties, one of which is the Orana Park Property. The request states that all three properties are ‘owned by Mr John Lamers’. This plainly incorrect, as the Orana Park Property is owned by the second defendant. I do not know who owns the other two properties, although the context suggests that it is the first defendant.
106.The defendants still claim privilege in those portions of the appraisals given in response to Document 91. Those appraisals appear in Document 92, and the appraisals relating to the two properties other than the Orana Park Property have been redacted. To be privileged they must be confidential. In my view they cannot be confidential if the request was not confidential. Nor can they be irrelevant if the request was not irrelevant. The defendants have not limited their change of position in relation to Document 91 (the request) to the Orana Park Property only — they no longer assert privilege in respect of any of the request. It follows that in my view none of the appraisals have the character of confidentiality necessary to maintain the claim of privilege. The whole of Document 92 must be disclosed.
…
108.For the same reasons as expressed in relation to the redacted portion of Document 92 I do not consider that the defendants can say that the request for information is not confidential, but the information supplied in response is. Accordingly, I consider that Document 98 is not privileged and must be disclosed.
The appellants submit that the Associate Judge erred in law by holding that the appraisal could not be confidential if the request for the appraisal was not confidential.
The appellants submit that the confidential character of a communication depends on whether there was an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.[31] They submit that in determining whether such an express or implied obligation exists, it should not matter whether the process of obtaining the confidential communication was open or public, and that the circumstances in which a request for information is made might be quite distinct from the circumstances giving rise to the confidentiality of the information provided in response to the request.
[31]Evidence Act 2008 (Vic) s 117, see definitions of confidential communication and confidential document.
The respondent submits that the Associate Judge’s reasons, read in their proper context and fairly understood, did not amount to a general statement that a response to a non-confidential request can never be confidential.
Analysis – Ground 5
It seems to me that the Associate Judge held that the appraisals did not have the character of confidentiality necessary to maintain the claim of privilege because the request for the appraisal was not confidential. The conclusion is expressed in overly categorical terms and, in my view, does not follow from the premise. Alternatively, there is an error of law because the path of reasoning is not sufficiently disclosed. Accordingly it is necessary to determine afresh the matter of the confidentiality of the appraisals.
During argument the appellants cited examples where requests for information might not be confidential, but where the response would be confidential, for example requests for access to medical records or a request for a credit rating. In those circumstances it was argued that the response would be inherently confidential. As a general proposition, using these examples, it is difficult to disagree. A person responding to such a request would ordinarily be under an express or implied obligation not to disclose personal matters.
Here, the matter under consideration is a request for the appraisal of the value of the property. This is not inherently confidential, unlike medical or credit reference information. Whether the appraisal had the character of confidentiality depends on whether it was made or prepared in circumstances where the person who made or prepared it or the person for whom it was prepared, was under an express or implied obligation not to disclose its contents.[32] It is therefore necessary to examine the relevant context.
[32]Evidence Act 2008 (Vic) s 117.
In her affidavit Ms Tyson specifically addresses communications made on behalf of John to estate agents, and in particular to the real estate agent’s market appraisal.[33] Ms Tyson deposes that she is the author of the correspondence originating from BRB requesting the market appraisal and that she was the addressed recipient of the correspondence from the real estate agent containing information sought by BRB in the original letter on behalf of John.
[33]Document number 92, Supplementary Application Book (Privileged Documents), A24-A25, Exhibit 2.
Ms Tyson deposes that the purpose for which she sought the information on behalf of John was to enable BRB to advise him as to his personal assets and interests and his estate planning affairs, and to ensure that his testamentary wishes were capable of properly being executed in the event of his death; all of which were matters that John made clear were confidential.[34]
[34]Affidavit of Nicole Jane Tyson, sworn 11 November 2016, [44]-[47], Application Book, 479-E488, Exhibit 1.
I have examined the appraisal document. Whilst the document is not marked ‘confidential’, it bears a notation: ‘This has been prepared solely for the addressee only and not be transferred to any third party’.[35] This notation is at least consistent with the maintenance of confidentiality.
[35]Document 92, page 2, Supplementary Application Book (Privileged Documents), A24-A25, Exhibit 2.
Furthermore, the document was addressed to BRB and marked to the attention of Ms Tyson. Ms Tyson deposes that the purpose for seeking the information was to enable BRB to advise John as to his personal assets and interests and his estate planning affairs. Accordingly, in my view the communication was made and was prepared in circumstances where the person to whom it was made (Ms Tyson), and for whom it was prepared (Ms Tyson), was under an express or implied obligation not to disclose its contents having regard to her client’s instructions. .
In my view the document satisfies the definition of confidential communication and confidential document under s 117 of the Evidence Act. Given the evidence as to the purpose for obtaining the appraisal, it also satisfies the requirements of client legal advice privilege under s 118 of the Evidence Act. It follows that I uphold Ground 5 of the appeal.
Notice of Contention
In a notice of contention filed on behalf of the respondent, the respondent states that the Associate Judge erred in fact and law in finding that the power to determine who will be the Appointor or Appointors of the Trust ‘falls within the description of a “personal asset” of the first appellant with the consequence that advice to the First Appellant on that topic is confidential to him.’[36]
[36]Notice of Contention, dated 27 June 2017, Application Book 1, Exhibit 1. Reasons, [95].
In his written submissions (in a slight reformulation of the stated ground), the respondent submits that the Associate Judge ‘erred in having regard to whether documents relating to the power to determine who will be the Appointor sufficiently fell within the description of “personal assets”’.[37] The respondent submits that the documents relating to the Appointor are not ‘personal assets’ of John.[38]
[37]Respondent’s written submissions, dated 25 August 2017, [81].
[38]Respondent’s Written Submissions, dated 25 August 2017, [81].
In my view there is no error of fact or law relating to this ground on either formulation. It seems to me that the Associate Judge accepts that the power to determine who will be Appointor or Appointors on John’s death is not a personal asset of John, and by the qualified use of language, pointedly declines to find that the power is a personal asset of John’s. Her Honour states: ‘The power to determine who will be Appointor or Appointors on his death may not strictly be a personal asset but I think it sufficiently falls within that description for advice to him on that topic to be regarded as confidential to him’.[39]
[39]Reasons, [95].
In my view, in its context, the Associate Judge uses the expression ‘personal asset’ as an informal but convenient reference to the power to determine who will be Appointor or Appointors on John’s death.
It was not erroneous for the Associate Judge to find that ‘the power to determine who will be Appointor or Appointors on [John’s] death’ was an appropriate topic for confidential advice to John as part of his estate planning.
Such advice may have consisted of informing him whether, under the terms of the Trust Deed or otherwise under trust law, he had power as Appointor to appoint a new or replacement Appointor, or whether a Deed of Variation purporting to amend the Trust Deed to expressly confer such power on the Appointor is valid. It became apparent during argument that different views are held about these matters. Now is not the time to determine these underlying differences. For present purposes it is enough to say that the answers to these questions may have had a bearing on John’s testamentary intentions.
The giving of legal advice to John with respect to the attributes or scope of his power as Appointor was not an incident of administration of the Trust generally. This is clear from the evidence of Ms Tyson, who deposes that the documents came from files opened in John’s name for his personal estate planning and not from files opened in the name of the Trust or for John in his capacity as a Director of OPPL. I am satisfied that the facts of this case indicate that the solicitor’s advice on the topic was an incident of estate planning for John and was intrinsically personal and confidential to him.
It follows in my view that it was not erroneous for the Associate Judge to find that the documents or communications in this category satisfied the test of legal advice privilege under Section 118 of the Evidence Act. Accordingly, I reject Ground 1 of the notice of contention.
By the notice of contention, the respondent also states that the learned Associate Judge ought to have found that the second appellant, being the trustee of the Trust, was not entitled to maintain a claim for legal professional privilege against the respondent as a director, shareholder and/or beneficiary of the Trust.[40]
[40]Notice of Contention, dated 27 June 2017, Ground 3, Application Book, Exhibit 1. Ground 2 of the Notice of Contention fell away following the response to a request for documents under s 198F Corporations Act, which was complied with.
This can be disposed of briefly. As the appellants contend, this ground focuses on claims for client legal privilege by OPPL. The appellants accept that documents solely relating to the assets of OPPL (whether held on trust or otherwise) are not confidential to John and therefore are not privileged.
As to OPPL’s documents that are confidential and remain subject to client legal privilege:
(a)The respondent’s entitlement as a director under s 198F of the Corporations Act were addressed by the appellants’ provision of relevant documents.
(b)The respondent’s entitlement as a shareholder under s 247A of the Corporations Act, do not abrogate the privilege. In this regard I note that in Engel v National Biodiesel Ltd, the Court observed: ‘… that the terms of s 247A do not abrogate legal professional privilege’.[41]
(c)As to the respondent’s entitlement as a beneficiary of the Trust, the appellants accept that the respondent would have joint privilege in documents containing legal advice or privileged material for the purpose of assisting OPPL to discharge its duty to administer the Trust.[42] The appellants contend, and I accept after reviewing the documents, that none of the client legal privilege documents fall into this category.
[41]See Engel v National Biodiesel Ltd (2015) 245 FCR 436, 448 [44]; see also Hanks v Admiralty Resources NL (No 2)[2011] FCA 1464, [20].
[42]Krok v Szaintop Homes Pty Ltd (No 1) [2011] VSC 16 [31].
Conclusion
Of the five grounds of appeal, I uphold Grounds 1, 3, 4 and 5. I dismiss Ground 2.
I will hear counsel on the appropriate form of order.
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