Quebani Pty Ltd & Anor v McDonald’s Australia Ltd
[2023] VSC 16
•31 January 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S ECI 2021 01395
BETWEEN:
| QUEBANI PTY LTD (ACN 007 333 164) | First Plaintiff |
| ROBERT GRAEME VIGORS | Second Plaintiff |
| v | |
| MCDONALD’S AUSTRALIA LIMITED (ABN 43 008 496 928) | Defendant |
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JUDGE: | Matthews AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 September 2022, further submissions filed, last filed 21 October 2022 |
DATE OF RULING: | 31 January 2023 |
CASE MAY BE CITED AS: | Quebani Pty Ltd & Anor v McDonald’s Australia Limited |
MEDIUM NEUTRAL CITATION: | [2023] VSC 16 |
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PRACTICE AND PROCEDURE – Legal professional privilege – Establishment of dominant purpose where in-house counsel are involved – Plaintiffs challenge to Defendant’s privilege claims – Defendant’s claims to privilege upheld - IOOF Holdings Ltd v Maurice Blackburn Pty Ltd [2016] VSC 311 referred to – Evidence Act 2008 (Vic), s 18 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr JG Levine of counsel | Matrix Legal |
| For the Defendant | Mr RG Craig KC with Mr MD Tehan of counsel | Norton Rose Fulbright Australia |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Background......................................................................................................................................... 2
Subject matter of the proceeding................................................................................................ 2
Content of the application and procedural background to the application......................... 3
Evidence............................................................................................................................................... 6
First Cawood Affidavit................................................................................................................. 6
First Stanarevic Affidavit........................................................................................................... 10
Second Cawood Affidavit.......................................................................................................... 10
Cables Affidavit........................................................................................................................... 11
Napoli Affidavit.......................................................................................................................... 12
Hardie Affidavit.......................................................................................................................... 13
Second Stanarevic Affidavit...................................................................................................... 15
Third Cawood Affidavit............................................................................................................. 16
Fourth Cawood Affidavit.......................................................................................................... 16
General principles regarding legal professional privilege...................................................... 17
Statutory provisions.................................................................................................................... 17
Applicable Principles.................................................................................................................. 17
Issues arising for consideration.................................................................................................... 19
Issue 1: the alleged non-legal role of the Defendant’s in-house lawyers............................. 20
Plaintiffs’ submissions................................................................................................................ 20
Defendant’s submissions........................................................................................................... 21
Analysis........................................................................................................................................ 24
Issue 2: whether Mr Cawood can depose to the alleged privileged purpose of documents he was not involved in............................................................................................................................ 28
Plantiffs’ submissions................................................................................................................. 28
Defendant’s submissions........................................................................................................... 28
Analysis........................................................................................................................................ 29
Issue 3: the adequacy of the description of the documents claimed to be privileged........ 31
Plaintiffs’ submissions................................................................................................................ 31
Defendant’s submissions........................................................................................................... 34
Analysis........................................................................................................................................ 35
Issue 4: whether the Court should inspect documents over which privilege is claimed.. 37
Plaintiffs’ submissions................................................................................................................ 37
Defendant’s submissions........................................................................................................... 38
Analysis........................................................................................................................................ 38
Issue 5: the Redacted Documents................................................................................................. 40
Plaintiffs’ submissions................................................................................................................ 40
Defendant’s submissions........................................................................................................... 41
Analysis........................................................................................................................................ 42
Issue 6: the privilege claims in respect of specific documents, to the extent not already dealt with........................................................................................................................................................ 44
Conclusion......................................................................................................................................... 47
HER HONOUR:
Introduction
This ruling concerns claims in respect of legal professional privilege by the Defendant over certain documents the Plaintiffs seek access to, either in whole or in part. By their summons dated 29 July 2022 (‘Summons’), subsequently amended on 3 October 2022 (‘Amended Summons’) the Plaintiffs challenge the Defendant’s privilege claims and seek copies of the documents (‘Privilege Application’). The Defendant resists that challenge.
The Plaintiffs rely upon the following materials in support of the Privilege Application:
(a) affidavit of Mark Stanarevic sworn 1 August 2022 (‘First Stanarevic Affidavit’);
(b) affidavit of Mark Stanarevic affirmed 26 September 2022 (‘Second Stanarevic Affidavit’);
(c) affidavit of Maree Cable affirmed 1 September 2022 (‘Cables Affidavit’); and
(d) its written outlines of submissions dated 11 August 2022 (‘Plaintiffs’ Outline’), 30 August 2022 (‘Plaintiffs’ Reply Outline’), 17 October 2022 (‘Plaintiffs’ Napoli and Hardie Affidavits Submission’) and 21 October 2022 (‘Plaintiffs’ Redacted Documents Submission’).
The Defendant relies upon the following materials in opposition to the Privilege Application:
(a) affidavit of Craig Cawood sworn 14 June 2022 (‘First Cawood Affidavit’);
(b) affidavit of Craig Cawood sworn 5 August 2022 (‘Second Cawood Affidavit’);
(c) affidavit of Emma Napoli sworn 21 September 2022 (‘Napoli Affidavit’);
(d) affidavit of Amy Hardie affirmed 22 September 2022 (‘Hardie Affidavit’);
(e) affidavit of Craig Cawood sworn 29 September 2022 (‘Third Cawood Affidavit’);
(f) affidavit of Craig Cawood sworn 11 October 2022 (‘Fourth Cawood Affidavit’); and
(g) its written outlines of submissions dated 23 August 2022 (‘Defendant’s Outline’), 21 October 2022 (‘Defendant’s Napoli and Hardie Affidavits Submission’) and 21 October 2022 (‘Defendant’s Redacted Documents Submission’).
Oral submissions were made at the hearing on 29 September 2022 regarding the Privilege Application.
For the reasons which follow, Defendant’s claims to legal professional privilege are upheld and the Privilege Application will be dismissed.
Background
Subject matter of the proceeding
The second plaintiff (‘Mr Vigors’), through his company (the first plaintiff), was until January 2020, the franchisee of two of the Defendant’s restaurants in Mildura.[1]
[1]Statement of Claim dated 17 June 2021 (‘SOC’), [1], [2], [4], [27].
It is pleaded by the Plaintiffs that the first plaintiff transferred the two restaurants to the nominee of one Leigh Colbert on 20 January 2020.[2]
[2]SOC, [14], [37]. This is admitted in the Amended Defence dated 29 October 2021 (‘Amended Defence’), [14], [37].
Separately and central to the proceeding, allegations in this proceeding include what occurred in the lead-up to that transfer in or around December 2019 to January 2020. The Defendant alleges that Mr Vigors was involved in an incident with his neighbours on about 13 December 2019 which “went viral” (‘viral incident’).[3] Between then and mid-January 2020, the Defendant alleges that the following occurred:[4]
[3]First Cawood Affidavit, [14].
[4]First Cawood Affidavit, [14]-[15].
(a) the Defendant issued media statements and corresponded with Mr Vigors;
(b) the Defendant took operational control over the Mildura restaurants;
(c) Mr Vigors sold (with the Defendant’s assistance) the Mildura restaurants to a new franchisee, Leigh Colbert (with whom Mr Vigors had entered into a heads of agreement to sell the stores prior to the viral incident); and
(d) the Defendant corresponded with Mr Vigors and his solicitors.
The Plaintiffs allege that they suffered loss and damage as result of the Defendant’s alleged conduct in the period from 15 December 2019 when the Plaintiffs allege the Defendant took operational control of the two restaurants and/or purported to terminate the relevant franchise agreement.[5] In denying the Plaintiffs’ claim for loss and damage, the Defendant (among other things) relies upon the fact that prior to the events of late December 2019, the Second Plaintiff had been trying to sell the two restaurants, had been negotiating with Mr Colbert for that purpose, and on or about 11 December 2019 had entered into a Heads of Agreement with Mr Colbert in relation to the sale of the two restaurants.[6]
[5]SOC, [6], [29].
[6]Amended Defence, [5A]-[5E].
The Defendant is said to have sought or obtained legal advice with respect to all of the above matters.[7]
[7]First Cawood Affidavit, [13], [15].
Content of the application and procedural background to the application
By the Amended Summons, the Plaintiffs seek the following relief:[8]
[8]With the amendments made by the Amended Summons shown in mark-up.
(a) an order that the Defendant file a further affidavit of documents that states sufficiently the grounds of any legal professional privilege in compliance with Rule 29.04 (1) (d) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).
(b) an order the Defendant make available for inspection:
(i) unredacted copies of the documents listed in schedule 1
inpart 1of schedule 1of the further affidavit of documents sworn by Craig Cawooddatedon 14 June 2022 where certain documents are said to be partially privilegedthat have been partially redacted.
(ii) the documents in part 2 of schedule 1 of the affidavit of Craig Cawood dated 14 June 2022
pursuant to s 55/56 of the Civil Procedure Act 2010 (Vic) (‘CPA’).
(c) alternatively, a declaration that the documents in part 2 of schedule 1 of the affidavit of the First Cawood Affidavit are not subject to legal professional privilege.
(d) an order granting leave to cross examine Mr Cawood on the basis that there is a reasonable belief that the Defendant is misinterpreting its discovery obligations and/or failing to disclose discoverable documents and/or wrongly claiming privilege thereupon pursuant to s 57 of the CPA.
The parties have been making discovery of documents in accordance with previous orders of the Court. Having done so, the Plaintiffs by way of the Amended Summons, seek production to them of certain documents over which the Defendant has claimed privilege, with those claims being either over the whole of a document or part thereof. In the latter instance, partly privileged documents have been produced by the Defendant to the Plaintiffs in redacted form. In other words, the Plaintiffs have challenged a number of the privilege claims made by the Defendant.
This Privilege Application was heard by me on 29 September 2022.
During the course of the hearing, submissions were made by both parties regarding the extent to which the relief sought in the Summons was in respect of part-privileged documents. The Defendant contended that the Summons did not seek unredacted copies of documents which had been identified in the First Cawood Affidavit as part privileged and redacted (‘Redacted Documents’).[9] The Plaintiffs disputed this. I ruled that it was unclear so I gave leave to the Plaintiffs to amend the Summons to seek that relief, which they subsequently did. I also gave leave for the Defendant to file and serve any affidavit in respect of those documents, for the Plaintiffs to file and serve any affidavit in response, and for the parties to file written submissions. The Fourth Cawood Affidavit, the Plaintiffs’ Redacted Documents Submission and the Defendant’s Redacted Documents Submission were subsequently filed and served.
[9]The Redacted Documents are items 5, 6, 8, 9, 11-3, 15 and 21 in the Cawood Schedule (defined in paragraph 37 below).
The relief sought in paragraph 4 of the Summons (described in paragraph 11(d) above) was dealt with during the course of hearing on 29 September 2022. Oral submissions in respect of that aspect of the Summons were made by the parties. The application by the Plaintiffs for leave to cross examine Mr Cawood was refused. I provided the parties with an oral ruling and I indicated that I would deal with the balance of the relief sought in the Amended Summons in this written ruling.
At the hearing, the Plaintiffs objected to the Defendant relying on the Napoli and Hardie Affidavits, saying that they had not had sufficient time before the hearing to determine whether the privilege claims made in those affidavits regarding specific documents were made in the same terms as set out in the First Cawood Affidavit.
I permitted the Defendant to rely on the Napoli and Hardie Affidavits but gave leave to the Plaintiffs to file and serve a short written submission insofar as they contended that any of the bases for the privilege claims stated in schedule one to each of the Napoli and/or Hardie Affidavits differed to the bases for the privilege claims stated in part two of schedule one to the First Cawood Affidavit, and for the Defendant to file a short submission in reply. The Plaintiff’s Napoli and Hardie Affidavits Submission and the Defendant’s Napoli and Hardie Affidavits Submission were subsequently filed.
Evidence
Objections were made by the Defendant to the whole of the Cables Affidavit. I ruled that the Defendant’s objections as to relevance would be dealt with in the course of my consideration of the Privilege Application and would go to weight, however I upheld the Defendant’s objection to the final sentence of the second paragraph 17 of the Cables Affidavit on the grounds that not only was it irrelevant it was also scandalous.
Objections were made by the Defendant to parts of the Second Stanarevic Affidavit, which were conceded by the Plaintiffs.
The Plaintiffs objected to aspects of each of the First Cawood Affidavit, the Napoli Affidavit and the Hardie Affidavit. I ruled that the matters raised would be taken into account when I considered whether to accept or reject these aspects of their evidence.
Below, I summarise the evidence given in the affidavits relied upon, with the affidavits discussed in chronological order.
First Cawood Affidavit
In his first affidavit Mr Cawood deposes as to his role an employee of the Defendant, the events concerning a potential sale of the Plaintiffs’ Mildura restaurants in early 2018, the viral incident, and the general operation of the Defendant’s legal team.
Mr Cawood deposes that he is a director and senior vice president/general counsel of the Defendant.[10]
[10]First Cawood Affidavit at [1].
He says that his primary day-to-day responsibility is as a lawyer of the Defendant, in his capacity as its general counsel. He is the leader of the Defendant’s legal team,[11] is responsible for the legal advice provided by the other in-house lawyers employed by the Defendant, and provides legal advice to employees of the Defendant.[12]
[11]First Cawood Affidavit at [8].
[12]First Cawood Affidavit at [7].
The Defendant’s legal team is made up of a number of lawyers whose primary role is to provide legal advice to the Defendant.[13] From time to time the Defendant briefs external lawyers. In respect of the matters which are the subject of the Plaintiffs’ claim in this proceeding, the Defendant engaged Maddocks to provide legal advice and draft legal documents.[14]
[13]First Cawood Affidavit at [8].
[14]First Cawood Affidavit at [9].
Mr Cawood deposes that it is the Defendant’s usual practice that lawyers will be sent documents or emails where it is necessary for the lawyers to give legal advice, or to arrange for an external lawyer to give legal advice.[15] He says that in his experience, it is not usual for the Defendant’s lawyers to be sent documents or emails in any other context.[16]
[15]First Cawood Affidavit at [19].
[16]First Cawood Affidavit at [19].
In respect of the events relevant to the Defendant’s dealings with the Plaintiffs, and the matters which are the subject of the Plaintiffs’ claims in this proceeding, Mr Cawood deposes that the Defendant’s lawyers included Amy Hardie, Emma Napoli, Hannah Dakin and Vanessa Magee.[17]
[17]First Cawood Affidavit at [8].
Mr Cawood deposes that the Defendant’s claims for legal professional privilege that are challenged by the Plaintiffs concern documents regarding two unrelated events involving the Plaintiffs’ Mildura restaurants.[18]
[18]First Cawood Affidavit at [8].
Firstly, in or about late 2018, Mr Vigors notified the Defendant that he proposed to sell the Mildura restaurants to Ms Emma Burgess, an existing franchisee of the Defendant’s restaurants.[19] Under its franchise agreements with Mr Vigors (and all franchisees), the Defendant has the right to exercise a right of refusal in respect of any proposed sale.[20] In effect, the Defendant can elect to purchase the store itself at the price which the vendor franchisee has agreed with a potential purchaser. Mr Cawood says that part of the purpose of such a clause is to prevent franchisees from under-reporting a sale price to the Defendant (which has effects on the borrowing requirements of an incoming purchaser).[21]
[19]First Cawood Affidavit at [11].
[20]First Cawood Affidavit at [11].
[21]First Cawood Affidavit at [11].
The Defendant sought to exercise its right of refusal in respect of the proposed sale of the Mildura restaurants to Ms Burgess.[22] Mr Cawood signed the notice to the Plaintiffs indicating the Defendant’s intention to exercise its right of refusal.[23]
[22]First Cawood Affidavit at [12].
[23]First Cawood Affidavit at [12]; Exhibit CC-02 to the First Cawood Affidavit.
The Defendant’s internal legal team, and its external solicitors, provided legal advice to the Defendant around the proposed sale, and the exercise of the right of refusal.[24] Mr Cawood deposes that as a result, a number of the documents which are the subject of the Defendant’s privilege claim relate to that proposed transaction.[25]
[24]First Cawood Affidavit at [13].
[25]First Cawood Affidavit at [13].
Secondly, Mr Cawood deposes as to the viral incident involving Mr Vigors which he describes as central to this proceeding.[26] Mr Cawood deposes that between the incident on 13 December 2019 and about mid-January 2020, the Defendant was involved in the immediate aftermath of the incident (including issuing media statements and corresponding with Mr Vigors), and assisted Mr Vigors to sell the Mildura restaurants to Mr Colbert.[27]
[26]First Cawood Affidavit at [14].
[27]First Cawood Affidavit at [14].
The Defendant’s legal team provided legal advice on draft media communications, draft correspondence to Mr Vigors and his solicitors, potential legal liability arising from the viral incident, the taking of operational control over the Mildura restaurants, the documents necessary to give effect to the sale, and other associated matters related to the transaction.[28]
[28]First Cawood Affidavit at [15].
Mr Cawood deposes that the involvement of the Defendant’s lawyers in dealing with the events which are the subject of this proceeding was limited to a legal role.[29] He says that the Defendant’s lawyers were not asked to provide any non-legal advice, such as commercial or public relations advice to the Defendant.[30]
[29]First Cawood Affidavit at [17].
[30]First Cawood Affidavit at [17].
In respect of the sale to Ms Burgess, the Defendant’s lawyers were required to provide legal advice about various issues, including good faith obligations and the right of purchase contained in the franchise agreements. Mr Cawood says that the lawyers did not provide commercial or other non-legal advice.[31]
[31]First Cawood Affidavit at [18].
Mr Cawood also deposes as to his own involvement in the matters the subject of this proceeding, as follows:
(a) The decision to take operational control of the Mildura restaurants was made by the Defendant’s executives and he was not one of those decision makers. He was consulted by those decision makers by telephone, SMS and email throughout the period about the legal risks associated with the viral incident and the legal options available to the Defendant. Throughout December 2019 and January 2020, he provided legal advice, including by seeking instructions about the factual circumstances of the viral incident so that he could provide that advice.[32]
(b) In respect of the sale of the sale of the Mildura restaurants to Mr Colbert, his only involvement was to give legal advice in respect of the transfer of the restaurants.[33] Mr Cawood deposes that he was not involved in any commercial or other negotiations.
[32]First Cawood Affidavit at [20].
[33]First Cawood Affidavit at [21].
The First Cawood Affidavit states that it is a further affidavit of documents made in accordance with orders made by Attiwill J on 9 May 2022.[34] It makes discovery over further documents as enumerated in part 1 of schedule 1 of the First Cawood Affidavit (‘Cawood Schedule’) and says that part of some documents are redacted.[35] In the body of his affidavit, Mr Cawood does not state the basis upon which part of some documents have been redacted. In the Cawood Schedule, there are columns entitled number, document title, document ID, privileged, and confidential. Nine of the 157 documents have ‘part’ listed in the privileged column and the rest have ‘no’.
[34]First Cawood Affidavit at [2].
[35]First Cawood Affidavit at [3].
The First Cawood Affidavit also makes discovery of documents enumerated in part 2 of schedule 1 (‘Cawood Privilege Schedule’), states that they are privileged and that the Defendant objects to producing them. Mr Cawood deposes that the documents are privileged from production on the basis set out in the Cawood Privilege Schedule.[36]
[36]First Cawood Affidavit at [4].
The Cawood Privilege Schedule has columns as follows: number, document title, document ID, attachment source, date, to, from, cc, and description of document and basis for privilege claim. There are 162 documents listed in the Cawood Privilege Schedule.
First Stanarevic Affidavit
Mr Stanarevic is the solicitor at Matrix Legal with the care and conduct of this proceeding for the Plaintiffs.[37]
[37]First Stanarevic Affidavit at [1].
Mr Stanarevic’s first affidavit simply exhibits the correspondence between the parties’ solicitors where the dispute over the Defendant’s privilege claims are ventilated and discussed.[38]
[38]First Stanarevic Affidavit at [3] with exhibit MS-5.
Second Cawood Affidavit
In his second affidavit, Mr Cawood deposes as to the dates of admission to legal practice of each of the relevant members of the Defendant’s legal team.[39] He also deposes that during the relevant period within which privileged communications were sent and received, those members of the Defendant’s legal team each held a valid practicing certificate in New South Wales.[40]
[39]Being Mr Cawood, Ms Napol, Ms Magee, Ms Dakin and Ms Hardie: Second Cawood Affidavit at [5].
[40]Second Cawood Affidavit at [6].
Cables Affidavit
As will be seen, the Plaintiffs refer to the Cables Affidavit to support their assertion that Mr Cawood does not act merely in a legal role as an employee of the Defendant.
Ms Cables deposes that she is currently a licensee of McDonald’s Albury East and that she has been a licensee of up to eight restaurants in two different states of the Defendant for over 25 years via corporate vehicles.[41]
[41]Cables Affidavit at [1] and [3]. Ms Cables uses the term ‘licensee’ – it is unclear to me whether she is a franchisee or not, but I have assumed that she is and that she has just used a different term. I do not think anything turns on this.
Ms Cables deposes to events between around November 2016 and January 2017 in respect of some of her restaurants where she had dealings with Mr Cawood. It is unnecessary for me to set out here what the events were. Ms Cables deposes that at the time Mr Cawood was the Senior Vice President, General Counsel and Franchise Relationship Officer and that he supervised an investigation into her restaurants.[42] She exhibits a copy of his Linkedin profile as at 1 September 2022.[43]
[42]Cables Affidavit at [6].
[43]Cables Affidavit at [6]; exhibit MC-1 at p. 1.
Ms Cables deposes that she had attended a meeting with Mr Cawood and two other employees of the Defendant on 12 December 2016 at which Mr Cawood did most of the talking.[44] She also deposes to having a telephone conference involving Mr Cawood on 23 December 2016 and a further meeting with Mr Cawood on 9 January 2017.[45]
[44]Cables Affidavit at [10].
[45]Cables Affidavit at [12], [16].
Ms Cables deposes that:
I am aware that Craig Cawood is actively involved with franchisees. He does not merely provide legal assistance to McDonald’s. The Field Consultants which attended my restaurants reported directly to Craig Cawood, during the investigation into my restaurants.[46]
[46]Cables Affidavit at [17].
Napoli Affidavit
Ms Napoli deposes that she is the Vice President, Chief People Officer of the Defendant and commenced that role in February 2021.[47] Prior to that role, Ms Napoli held various other roles from 2010 including as legal counsel in the Defendant’s in-house legal team,[48] and became Director of Legal and Deputy General Counsel in July 2014. In that role, she reported directly to Mr Cawood.[49] In October 2020 she moved out of the Defendant’s legal team and into its People Team in the role of Director of People & Culture.[50]
[47]Napoli Affidavit at [7].
[48]Napoli Affidavit at [4].
[49]Napoli Affidavit at [5].
[50]Napoli Affidavit at [6].
Ms Napoli deposes that her designation as a ‘Vice President’ reflects the level of her role within the Defendant and does not carry with it any further responsibilities beyond her role as Chief People Officer. She says that similarly, there is a designation of ‘Senior Vice President’, which also reflects a higher level within the company. Ms Napoli says that the designation of Senior Vice President also does not carry with it any further roles or responsibilities beyond that person’s own position in the company.[51]
[51]Napoli Affidavit at [8].
Ms Napoli deposes that the role of the Defendant’s legal team in respect of matters involving the Plaintiffs involved providing legal advice in response to the viral incident; providing and reviewing legal documentation in relation to the viral incident; and providing legal advice, including drafting and reviewing documentation, concerning the sale of the Mildura restaurants to Mr Colbert.[52] Ms Napoli deposes that the Defendant’s privilege claim over communications in respect of which she was a party were in relation to these three roles.[53]
[52]Napoli Affidavit at [10].
[53]Napoli Affidavit at [11], [15].
Ms Napoli deposes that at the relevant time, Mr Cawood was the Defendant’s general counsel and franchise relationship officer. In his capacity as franchise relationship officer, Mr Cawood was someone to whom the franchisees could escalate issues and speak about issues that arose.[54] She states that Mr Vigors did not escalate any issues surrounding the viral incident to Mr Cawood in his role as franchise relationship officer.[55]
[54]Napoli Affidavit at [12].
[55]Napoli Affidavit at [12].
Ms Napoli deposes that in her experience and observations, the vast majority of Mr Cawood’s role has been and is as general counsel and a lawyer for the Defendant.[56]
[56]Napoli Affidavit at [13].
Ms Napoli also gives evidence that Mr Cawood’s role relating to the matters involving Mr Vigors involved him acting in a legal capacity only. She says that his interactions with Mr Vigors were as the Defendant’s general counsel, and his interactions with her and other members of the legal team were also in that role. Ms Napoli says that is, Mr Cawood supervised her and other members of the Defendant’s legal team in the performance of their legal roles, rather than requesting advice or otherwise engaging with the Defendant’s legal team as part of his role as franchise relationship officer.[57]
[57]Napoli Affidavit at [14].
The Napoli Affidavit contains a schedule which describes each document over which the Defendant maintains a privilege claim which Ms Napoli was involved in (‘Napoli Privilege Schedule’), which has the same columns as contained in the Cawood Privilege Schedule.
Hardie Affidavit
Ms Hardie gives evidence that she from around March 2019 to March 2020 she was employed in the Defendant’s legal team in Australia as senior legal counsel. [58] She is currently employed in the Defendant’s global legal team as senior counsel.[59] Ms Hardie states that the leader of the Defendant’s legal team is Mr Craig Cawood.[60]
[58]Hardie Affidavit at [3].
[59]Hardie Affidavit at [1].
[60]Hardie Affidavit at [4].
In or about 2019 Ms Hardie says that she reported directly to Ms Napoli, who as at time Director of Legal for the Defendant.[61]
[61]Hardie Affidavit at [5].
Ms Hardie deposes that she understood that Mr Cawood was acting as general counsel on behalf of the Defendant in respect of Mr Vigors’ proposed sale of his restaurants to Ms Burgess, the viral incident and Mr Vigors’ proposed sale of his restaurants to Mr Colbert.[62] She says that she formed this understanding as from her experience, when a problematic or controversial situation arises involving the Defendant, Mr Cawood is asked to provide or arrange the provision of legal advice to the Defendant, and her communications with Mr Cawood concerning Mr Vigors were solely for the purpose of Mr Cawood asking her to provide legal advice or prepare legal documentation.[63]
[62]Hardie Affidavit at [6].
[63]Hardie Affidavit at [6].
Ms Hardie deposes that on or about 15 December 2019 she was telephoned by Mr Cawood who informed her of the viral incident and that they would need to draft some legal documentation.[64]
[64]Hardie Affidavit at [7].
Ms Hardie prepared legal documentation for franchising matters for the Defendant. She states that it was standard practice to receive instructions from ether the relevant accountant or finance manager of the Defendant, or someone senior to Ms Hardie in the legal team, and then draft legal documents.[65]
[65]Hardie Affidavit at [8].
In respect of matters involving Mr Vigors, she received instructions from Faisal Bhatti, a finance manage at the Defendant.[66] Mr Bhatti would begin preparing template documents with commercial terms inserted and then send the documents to Ms Hardie to review, provide legal advice and then prepare the legal documentation.[67]
[66]Hardie Affidavit at [9].
[67]Hardie Affidavit at [9].
The Hardie Affidavit contains a schedule which describes each document over which the Defendant maintains a privilege claim which Ms Hardie was involved in (‘Hardie Privilege Schedule’). The Hardie Privilege Schedule contains the same columns as the Cawood Privilege Schedule.
Second Stanarevic Affidavit
In his second affidavit, Mr Stanarevic describes and exhibits (in exhibit bundle MS-1) a number of documents involving Mr Cawood.
In particular, he refers to (and exhibits copies of) the following documents, describing them as:
(a) An email from Antoni Martinez[68] to Mr Cawood dated 15 December 2019 which stated, inter alia, “I refer to your discussion with Craig Cawood and myself, in which it was agreed that McDonald’s will take operational control of the Restaurants on and from 15 December 2019”.[69]
[68]Mr Martinez’s email signature states that his role is Market Director – Southern Region, for the Defendant.
[69]Second Stanarevic Affidavit, [4(a)]; Exhibit MS-1, p. 1.
(b) “Phone discussion between Craig Cawood, Emily Napoli and Antoni Martinez on 20 Devember 2019”. Pages 2-3 of exhibit MS-1 are said to be a copy of the file notes of the phone discussion.[70]
[70]Second Stanarevic Affidavit, [4(b)].
(c) On 20 December 2019, Robert Sexton, VP/CFO sent a letter to Mr Cawood that dealt with the borrowing guidelines for Mr Colbert.[71]
[71]Second Stanarevic Affidavit, [4(c)]; Exhibit MS-1, p. 4.
(d) The notice of exercise of lessor’s option dated 9 January 2019 is signed by Craig Cawood.[72]
[72]Second Stanarevic Affidavit, [6(a)]; Exhibit MS-1, pp. 5-6.
(e) On 15 December 2019, Gregory Andrew sent emails to a number of recipients including Mr Cawood that dealt with operational and media issues. One of the emails stated “Craig, Ant and I are working on the details and James is doing the media liaison work”.[73]
(f) On 15 December 2019, James Rickards sent an email to a number of recipients including Mr Cawood that dealt with media issues.[74]
(g) On 15 December 2019, Mr Martinez sent an email to Mr Vigors that was copied to Mr Cawood that stated inter alia “I refer to your discussion with Craig Cawood and myself today in which it was agreed that McDonald’s will take operational control of the Restaurants on and from 15 December 2019. Should you have any further media contact please contact me and McDonald’s will respond.”[75]
[73]Second Stanarevic Affidavit, [6(b)]; Exhibit MS-1, pp. 7-14.
[74]Second Stanarevic Affidavit, [6(c)]; Exhibit MS-1, pp. 15-16.
[75]Second Stanarevic Affidavit, [6(d)]; Exhibit MS-1, p. 17.
Third Cawood Affidavit
The Third Cawood Affidavit is brief and is relied upon to correct a misdescription of the basis for the Defendant’s privilege claim over two documents listed at items 131 and 132 of the Cawood Privilege Schedule. There, the claim had been described as being for the dominant purpose of providing legal advice in relation to the proposed sale of the restaurants to Ms Burgess.[76] Mr Cawood deposes that he wishes to correct this, saying that documents MCD.003.001.2140 and MCD.003.001.2141 are privileged because they were sought and received for the dominant purpose of providing legal advice to the Defendant in relation to the taking of operational control of the Mildura restaurants.[77]
[76]Third Cawood Affidavit at [3].
[77]Third Cawood Affidavit at [4].
Fourth Cawood Affidavit
In his fourth affidavit, Mr Cawood provides evidence in respect of the Redacted Documents. He says that the documents described in the Cawood Schedule as redacted are redacted on the basis that they are partly privileged, and he exhibits redacted copies of the partly privileged documents as exhibit CC-03.[78]
[78]Fourth Cawood Affidavit, [3], [4].
The Fourth Cawood Affidavit contains a table, in similar form to the Cawood Privilege Schedule. Mr Cawood deposes that the redacted portions of the Redacted Documents are privileged on the basis set out in that the table contained in the Fourth Cawood Affidavit (‘Cawood Part Privilege Schedule’).[79]
[79]Fourth Cawood Affidavit, [5].
General principles regarding legal professional privilege
Statutory provisions
Section 118 of the Evidence Act 2008 (Vic) (‘Evidence Act’) deals with legal advice privilege, providing as follows (‘Advice Limb’):
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
(a)a confidential communication made between the client and a lawyer; or
(b) a confidential communication made between 2 or more lawyers acting for the client; or
(c)the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person—
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
Section 119 of the Evidence Act deals with litigation privilege (‘Litigation Limb’), however that is not claimed here by the Defendant so I need not deal with it.
Applicable Principles
The principles in respect of client legal privilege[80] are well established and there is little utility setting out a fulsome discussion of them here, unless that is necessary to deal with the parties’ submissions. Generally speaking, the parties did not appear to differ on the general principles regarding privilege, however where they did, I will deal with that later.
[80]The Evidence Act refers to it as ‘client legal privilege’ whereas it is usually referred to in common law cases as ‘legal professional privilege’. Nothing turns on this distinction and the terms are used interchangeably in these reasons.
The common law principles inform the content and application of the Advice Limb.[81] In the context of applying the Evidence Act, in IOOF Holdings Ltd v Maurice Blackburn Pty Ltd,[82] Elliott J stated that the principles applicable to privilege “are not controversial” and summarised them as follows:[83]
[81]Samenic Ltd v APM Group (Aust) Pty Ltd [2011] VSC 194, [19].
[82][2016] VSC 311 (‘IOOF v Maurice Blackburn’).
[83]Ibid, [47], citations omitted.
(1)The party claiming the privilege bears the onus. That onus will only be discharged if the party establishes facts from which the court may determine that the privilege is being properly claimed.
(2)“Purpose” in “dominant purpose” means the purpose which led to the creation of the document or the making of the communication.
(3)The “dominant purpose” is the purpose which was the ruling, prevailing or most influential purpose at the time the document was brought into existence.
(4)There can be only 1 dominant purpose. If there are 2 purposes of equal weight, neither fits the description of a “dominant purpose”.
(5)If a dominant purpose existed, that dominant purpose must be determined objectively, having regard to the evidence, the nature of the document and the parties’ submissions. That said, evidence of the subjective purpose of the person making the communication or creating the document is relevant.
(6)Ordinarily, the relevant purpose is that of the person who brings into existence the document which includes the privileged communication, but this will not always be the case.
(7)As the test is directed towards the purpose of bringing the document into existence, a copy of a non-privileged document may be privileged.
(8)The material relied upon by the person claiming privilege must be focused and specific. Formulaic and bare conclusory assertions are not sufficient.
(9)With respect to advice privilege, in considering whether a communication is for the purposes of legal advice, the purposes must be construed broadly. Although it does not extend to pure commercial advice, legal advice, in this context, includes any advice as to what should prudently and sensibly be done in the particular legal circumstances in which the client finds itself.
(10)Further to subparagraph (9), a document created by a lawyer that records her or his legal work carried out for the benefit of the client, such as a research memorandum, a summary of documents or a chronology, will be protected by privilege whether or not the document is provided to the client. Similarly, notes and other material created by the client that relate to the legal advice sought (whether or not actually communicated to the lawyer), or that relate to communications with the lawyer, may be privileged where such documents meet the relevant “dominant purpose” test.
(11)With respect to litigation privilege, for a proceeding to be “anticipated or pending” for the purposes of s 119, there must be more than a mere possibility of litigation. As a general rule, there must be a real prospect of litigation, but it does not have to be more likely than not.
(12)Many claims for privilege may be determined by the court without the need to inspect the documents. Further, ordinarily, the court will not examine the documents if the party claiming privilege has not established a basis for the claim in an affidavit in support. However, in an appropriate case, the court may examine the documents to make a decision about privilege, particularly where the parties agree to this course.
(13)A law firm or a company may be a “client” if it engages or employs its own employee lawyer, but privilege will only attach to the relevant communication or document if the employee is consulted confidentially in her or his professional capacity, with the requisite degree of independence, in relation to a professional matter.
Issues arising for consideration
Based on the evidence adduced and the submissions of the parties, in my view the following are the main issues arising for consideration:
(a) Issue 1: the alleged non-legal role of the Defendant’s in-house lawyers;
(b) Issue 2: whether Mr Cawood can depose to the alleged privileged purpose of documents he was not involved in;
(c) Issue 3: the adequacy of the description of the documents claimed to be privileged;
(d) Issue 4: whether the Court should inspect documents over which privilege is claimed;
(e) Issue 5: the Redacted Documents; and
(f) Issue 6: the privilege claims in respect of specific documents, to the extent not already dealt with.
It is convenient to deal with each of these in turn, setting out the parties’ submissions and then my analysis.
Issue 1: the alleged non-legal role of the Defendant’s in-house lawyers
Most of the documents over which privilege is claimed by the Defendant generally concern communications involving one or more of the Defendant’s internal legal team, rather than their external lawyers.
A great deal of time at the hearing was spent on Issue 1.
Plaintiffs’ submissions
The Plaintiffs relied on the Cables Affidavit and the Second Stanarevic Affidavit as evidence that Mr Cawood’s role was not a purely legal one.
They submit that insofar as the Cables Affidavit is concerned, it demonstrates that Mr Cawood has another role, that of franchise relationship officer, and that his activities in that role are different to any legal one.
The Plaintiffs submitted that the documents described by Mr Stanarevic and exhibited in the Second Stanarevic Affidavit, as set out at paragraph 63 above demonstrate that Mr Cawood was not acting, or did not always act, in a legal role and that not all of his documents were for the purpose of providing legal advice.
The Plaintiffs submitted that as they had these documents because privilege was not claimed in respect of them, that shows that the Defendant’s evidence that Mr Cawood only “did stuff that was in relation to legal advice” was not correct, because these show he is acting in a non-privileged manner.[84] In response to this, I said to the Plaintiffs’ counsel that there is a difference between a non-legal role and a non-privileged communication. I also sought clarification that the submission was that Mr Cawood was acting in a non-legal role because he was acting in a non-privileged manner.[85] To this, counsel responded that perhaps he had misspoken, but his intended submission was that the Defendant’s position was that Mr Cawood has only been acting in a legal manner and that all of his communications should be privileged.[86]
[84]Transcript, 87.20 - 88.2.
[85]Transcript, 88.3-8.
[86]Transcript, 88.9-13.
The Plaintiffs submit that even if Mr Cawood was acting in a legal role, that does not necessarily mean that a document is privileged.
The Plaintiffs submit that paragraph 17 of the First Cawood Affidavit[87] is objectionable as it is conclusionary, there is no proper articulation of the basis, and it constitutes an opinion. The Plaintiffs say that Mr Cawood is not the person who can depose to these matters, and his multiple roles, and it is not for him to determine what is for a dominant purpose or what the purposes were of each of the matters in question before me.
[87]The content of that paragraph is summarised in paragraph 34 above.
The Plaintiffs also objected to paragraph 18 of the First Cawood Affidavit,[88] in particular the final sentence that “the lawyers did not provide commercial or other non-legal advice”.
[88]The content of that paragraph is summarised in paragraph 35 above.
In a similar vein, the Plaintiffs objected to paragraph 21 of the First Cawood Affidavit,[89] saying that it was conclusionary. They also say that it is not for Mr Cawood to basically state that privilege applies because he is giving legal advice, as that is a matter for me to determine. It is said that this is of no probative value.
[89]The content of that paragraph is summarised in paragraph 36(b) above.
Further, the Plaintiffs submit paragraphs 15 and 19 of the First Cawood Affidavit[90] are inadmissible as they are conclusionary, with the basis therefore not expressed, and that those paragraphs are in any event expressed in the most general terms so as to be meaningless.[91]
[90]The content of those paragraphs is summarised in paragraphs 33 and 26 above.
[91]Plaintiffs’ submissions in reply at [8].
Defendant’s submissions
Of the Cables Affidavit, the Defendant says that this was in a different timeframe, with a different franchisee, and that in any event there is nothing in her affidavit to suggest that Mr Cawood is not performing those roles as a general counsel.
The Defendant did not dispute that Mr Cawood has a role as a director of the Defendant as well as being general counsel. The Defendant also acknowledged that its evidence disclosed that in respect of certain franchisees he is a franchisee relationship officer.
However, the Defendant submits that the critical point is that Mr Cawood has gone on affidavit, wearing his general counsel hat, and deposed that his only involvement with these two particular issues was in the obtaining and providing of legal advice, which he did in conjunction with the internal legal team. Further, his next most senior legal officer, Ms Napoli has said that, as has the lawyer who reports to her, Ms Hardie.
The Defendant submitted that it may be appropriate where there is a communication between a client and an in-house lawyer to assume that legitimate legal advice was being sought, absent any contrary indications.[92] The Defendant relied on AWB v Cole (No 5)[93] for this proposition.
[92]Transcript, 92.25-31.
[93](2006) 155 FCR 30, [44(1)] (‘AWB v Cole’).
The Defendant also submitted that the evidence discloses that the prima facie position is that each of Mr Cawood, Ms Napoli and Ms Hardie were acting independently at the relevant time and that they were performing a legal role in respect of the subject matters. The Defendant submitted that this gives rise to a presumption that the lawyers are independent and that the Plaintiffs bear the evidentiary burden of rebutting the presumption.
The Defendant relied on Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd, where it was stated that in the case of inhouse lawyers, there is no presumption of a lack of independence.[94] Having said that, Boddice J went on to cite Gillard J in Australian Hospital Care (Pindari) Pty Ltd v Duggan (No 2), in which Gillard J said:
[94][2013] QSC 82, [9] (‘Aquila v Bowen Central”).
… once the client swears the affidavit of documents claiming legal professional privilege in a way which leads the Court to the conclusion that the claim is properly made, then the prima facie position is that the legal adviser was acting independently at the relevant time.
It follows that if any party to the litigation disputes the claim for legal professional privilege then it has the evidentiary burden of establishing facts which prima facie rebut the presumption.
…
If the party opposing the claim for privilege does establish facts which rebut the prima facie presumption then in the end result the party claiming privilege must establish the propriety and validity of the claim.
The Court may, after considering the issues, reach the conclusion that the lawyer was acting independently and accordingly the privilege is upheld, or that the lawyer was not acting independently and accordingly there is no privilege, or the Court may reach a position where it is in doubt. If the latter stage is reached then the Court should inspect the documents to determine the propriety and validity of the claim.
…
… the mere fact that the legal adviser is an employee of the client or that his duties may involve performing non-legal work do not establish that at the relevant time he was not acting independently. It is recognised that employees will perform non-legal work and it is an essential element of the privilege that at the relevant time the employee was performing legal work.
The fact of employment is relevant but the weight to be attached to that fact in considering independence will depend on all the circumstances.[95]
[95][1999] VSC 131, [67]-[71], [81]-[82].
The Defendant drew on its submission described in the preceding two paragraphs to contend that the presumption of the independence of its in-house lawyers arises due to its evidence and the Plaintiffs have not rebutted that presumption, and that therefore the privilege claim ought be accepted and there is no need for the Court to inspect the documents.
The Defendant also submitted that the fact that Mr Cawood has a mixed role within the company does not preclude his communications from attracting privilege.[96] It says that what is important here is the role that he was performing in making the communications under inquiry. In this regard, the Defendant says that the evidence establishes that Mr Cawood was acting in a legal role for the entirety of his involvement in the subject matters, but that does not mean a fortiori that all his communications are privileged, since his communications must still satisfy the dominant purpose test. This is why some communications involving Mr Cawood are not the subject of a privilege claim.
[96]In this regard, the Defendant relies on my decision in Andrianakis v Uber Technologies Inc & Ors; Taxi Apps Pty Ltd v Uber Technologies Inc & Ors [2022] VSC 196, [138] (‘Andrianakis v Uber’).
Analysis
I do not give any weight to the Cables Affidavit when it comes to determining whether Mr Cawood was acting in a legal role in respect of the subject matters. Her impressions of his role in a different context at a different time are simply not probative of the question before me, particularly in circumstances where the Defendant concedes that Mr Cawood had other roles within the company. The Cables Affidavit tells me nothing about what Mr Cawood’s role was in respect of the subject matters.
I do not accept the Plaintiffs’ submissions as set out in paragraph 76 above.
I have reviewed the documents exhibited to the Second Stanarevic Affidavit and make the following comments regarding specific documents:
(a) In relation to the document described at paragraph 63(a) above, Mr Stanarevic neglects to mention that this was an email sent by Mr Martinez to Mr Vigors, copied to Mr Cawood. Clearly, privilege was not claimed in respect of this document. The content of the document does not shed any light on Mr Cawood’s role in respect of the discussion he attended between Mr Vigors and Mr Martinez, although I note that Mr Martinez finishes his email with “If you have any questions, I am your solo point of contact.” I do not accept the Plaintiffs’ proposition that Mr Cawood being in attendance at a discussion between Mr Vigors and Mr Martinez means that he was performing a non-legal role. Having your lawyer present at what was undoubtedly an important meeting is hardly surprising and does not indicate that the lawyer was performing any other function. To the extent that the Plaintiffs rely on the phrase “it was agreed” to suggest that Mr Cawood played a decision making role, that is not apparent on the face of the email and nor am I prepared to infer that. Mr Cawood deposes that he did not perform a decision-making function in this regard and there is no reason to doubt that evidence. The same comments apply to the document described at paragraph 63(g) above.
(b) In relation to the document described at paragraph 63(b) above, I consider the description given by Mr Stanarevic to be quite inaccurate. He describes it as a file note of the phone discussion. It is no such thing. It is a calendar invitation for 20 December 2019 for a phone call between Ms Napoli, Mr Cawood and Mr Martinez with the subject line “Discussion re Rob Vigors” and an acceptance of that invitation. There is no other meaningful content. That Mr Cawood and Ms Napoli have organised a phone call with Mr Martinez to discuss Mr Vigors is hardly surprising when both depose to providing legal advice to the Defendant during this time and Mr Martinez was the one dealing with Mr Vigors, as is apparent from the other documents contained in exhibit MS-1. Not only is the description of the document inaccurate, it is not evidence that Mr Cawood and/or Ms Napoli were not acting in a legal role in respect of the subject matters.
(c) In relation to the document described at paragraph 63(d) above, Mr Cawood signed that document above the description of his position as Senior Vice President/General Counsel. That a lawyer signs a notice to Mr Vigors in his stated role as a lawyer does not mean that he was acting in a non-legal role. Further, I accept Ms Napoli’s evidence set out at paragraph 49 above that a designation to an employee of the Defendant as Vice President or Senior Vice President reflects the level of seniority of the employee and not additional roles or responsibilities. Therefore, I do not regard Mr Cawood’s designation as Senior Vice President as connoting an additional role within the company. Ms Napoli’s knowledge of this is clearly based on her own experience but also due to her current role within the Defendant’s People Team.
Insofar as these documents are concerned generally, I do not accept the Plaintiffs’ submission that these demonstrate Mr Cawood was performing a non-legal role. That Mr Cawood was copied into correspondence over which privilege is not claimed may simply be a result of him being kept informed of events as they unfolded so that he was in a position to provide legal advice. If that was the purpose of him being copied, then that may well mean that a purpose of the documents was for legal advice but it does not mean that was the dominant purpose, and so is therefore not privileged. There is simply nothing on the face of those documents to suggest that Mr Cawood was performing a non-legal role in respect of the subject matters.
I also do not accept the Plaintiffs’ submissions as set out in paragraph 78 above. That was just not how the Defendant put its case. Rather, I accept the Defendant’s submission as set out at paragraph 91 above.
The Defendant did not appear to dispute that if an in-house lawyer with multiple roles within the company was not acting in their legal role when involved in communications, then those communications were not privileged (or, more precisely, any privilege does not arise by reason of that person’s involvement in the communication). That is the appropriate course to adopt.
I am satisfied, based on all of the material before me, that Mr Cawood was acting in a legal role in respect of his involvement in the subject matters. His own evidence is very clear on this point and I do not accept the Plaintiffs’ attack on portions of his evidence. To contend that Mr Cawood cannot give evidence about his own multiple roles and which role he was performing at any particular time is nonsensical. He is best placed to do so, and to say that his evidence that he was acting in a legal role is conclusionary and only an opinion is also nonsensical. Whether I accept Mr Cawood’s characterisation of his role depends on an analysis of all of the evidence, which is what I have done, but it does not mean that Mr Cawood cannot give the evidence he does.
To the extent that the Napoli and Hardie Affidavits are relied upon as evidence of Mr Cawood performing only in a legal role in respect of the subject matters, I accept that evidence insofar as Ms Napoli and Ms Hardie depose to their own interactions with him about those matters. Such evidence is direct and within their knowledge. To the extent that they stray into generalisations about Mr Cawood’s role that is not based on those interactions, their evidence is of little weight.
I do not consider the Defendant’s submission set out at paragraphs 88 to 90 above to be particularly relevant here. As I apprehended the Plaintiffs’ submission, their stated concern was not about the independence of the in-house lawyers per se but to the contention that they, particularly Mr Cawood, had multiple roles and it could therefore not be assumed (or presumed) that they were acting in a legal role insofar as their involvement in the subject matters was concerned. Even if I have misunderstood the Plaintiffs’ submission, I have not needed to rely on the presumption of independence which the Defendant relied upon, as I am satisfied on the evidence that the in-house lawyers were acting in a legal role when involved in the subject matters, such that if the dominant purpose test is met and confidentiality is maintained, their communications are capable of being privileged.
I accept the Defendant’s submissions in this regard.
The Plaintiffs submit that with respect to paragraph [9] of the Hardie Affidavit, if it is the case that commercial terms were inserted into template documents by Mr Bhatti, it would be unlikely that those documents are subject to legal professional privilege. Accordingly, any documents created by Mr Bhatti are simply not privileged.
I reject this submission. Ms Hardie deposes that Mr Bhatti sent such documents to her for her review and for her to provide any legal advice. The copy of the document sent by Mr Bhatti to Ms Hardie for that purpose is clearly privileged.
In paragraph 15 of the Plaintiffs’ Outline, the Plaintiffs contend that the privilege claims to the attachments to certain emails have not been properly articulated. They say that the attachments may be privileged on the basis of the principles in Propend[131] if the emails to which they are attached are privileged, but that this does not mean that the originals of the attachments are privileged and they must be discovered. As I am satisfied, for the reasons previously articulated, that the emails to which these documents were attached are privileged, it follows that the attachments (which is the equivalent of making a copy of the original) are also privileged. I did not allow the Plaintiffs’ attempt, at the hearing, to expand their application to include an application in respect of the originals of those attachments but indicated that there was nothing to prevent the Plaintiffs making a separate application in that regard, if so minded.
[131]Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.
Conclusion
For all of the reasons set out above, I am satisfied that the Defendant has established its claim to legal professional privilege over the document disputed by the Plaintiffs.
It follows that the Amended Summons ought be dismissed.
The parties are to confer as to a form of orders to give effect to this decision, including as to costs, and to provide my Chambers by 6 February 2022 either proposed orders which have been agreed or their preferred form of orders if not agreed.
My preliminary view is that costs ought follow the event, such that the Plaintiffs should pay the Defendant’s costs of and incidental to the Privilege Application on a standard basis. If there is a dispute between the parties as to costs or as to the form of orders to be made, I will deal with that at the hearing scheduled for 7 February 2023 at 10.30am in respect of another summons filed by the Plaintiffs.
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