Timbercorp Finance Pty Ltd v Tomes (privilege)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S CI 2014 04921

TIMBERCORP FINANCE PTY LTD (in liquidation) (ACN 054 581 190)	Plaintiff
v
JOHN CHARLES TOMES	Defendant

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2019 and 12 June 2019
DATE OF JUDGMENT:	3 July 2019
CASE MAY BE CITED AS:	Timbercorp Finance Pty Ltd v Tomes (privilege)
MEDIUM NEUTRAL CITATION:	[2019] VSC 445

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EVIDENCE – Claim for litigation privilege – Emails between lawyers for the defendant and a witness and statement of that witness – Whether shown to be confidential – Evidence insufficient to establish that confidential – On inspection, others copied in to the emails by, and without objection by, the defendant’s lawyers – Held: not confidential or, in the alternative, privilege waived by disclosure.

EVIDENCE – Claim for common interest privilege – Email from a third party to defendant’s lawyers attaching a statement from a witness in relation to matters common to that third party, the defendant and certain other persons - The defendant, the third party and those certain other persons each defend a similar claim against them by the plaintiff on the same basis - Whether disclosure of the statement to the third party and those other persons is the subject of the common interest exception to waiver - Obiter: even if the statement was the subject of the defendant’s litigation privilege (which is not established) the claimed common interest could not be made out because there is no evidence that one person copied in to the email had any such common interest.

Evidence Act 2008 (Vic) ss 117, 119, 122 (5)(c).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr C Parkinson with Mr T Barry	Mills Oakley
For the Defendant	Mr G Moffatt	Somerset Ryckmans, Solicitors

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Documents in contest: as described by the defendant................................................................ 1

Submissions........................................................................................................................................ 1

Legal principles.................................................................................................................................. 1

Inspection....................................................................................................................................... 1
Confidentiality............................................................................................................................... 1
Obligation............................................................................................................................. 1
Presence of others................................................................................................................ 1
Who must be under the obligation................................................................................... 1
Inspection to ascertain whether intended to be confidential........................................ 1

Waiver............................................................................................................................................. 1
Common interest privilege.......................................................................................................... 1

Evidence............................................................................................................................................... 1

Evidence in support of privilege claim..................................................................................... 1
Who attended the meeting in Perth?................................................................................ 1
Two statements or one?...................................................................................................... 1
Disclosure of Mr Broad’s statement or statements......................................................... 1
Purpose and use of the instructions and statements..................................................... 1
Who wrote the statement or statements?......................................................................... 1
When Mr Herskope ceased to act..................................................................................... 1

Evidence against privilege claim............................................................................................... 1

Consideration...................................................................................................................................... 1

Summary........................................................................................................................................ 1
Privilege......................................................................................................................................... 1
Emails between Mr Broad and the defendants’ lawyers: Categories 4 and 5............ 1
Bodycoat Document............................................................................................................ 1

Waiver............................................................................................................................................. 1
Common interest privilege.......................................................................................................... 1

Conclusion and orders...................................................................................................................... 1

HER HONOUR:

Introduction

In this proceeding, the plaintiff seeks to recover moneys advanced to the defendant in connection with an investment in the Timbercorp plantations. The proceeding will be listed for trial at a callover before her Honour Justice Kennedy in late July 2019, the trial being anticipated to be in August of this year.

These reasons concern a claim for privilege in respect of documents produced by a Mr Spencer Broad both in his personal capacity and through his company Acute Business Services Pty Ltd in response to subpoenas issued by the plaintiff.

Mr Broad was a financial advisor and an authorised representative for Timbercorp Securities Limited (‘TSL’), a company related to the plaintiff. He provided financial advice to the defendant in relation to investing in the managed investment schemes operated by TSL. The defendant alleges that Mr Broad made certain representations to him, and did so as agent for the plaintiff. He will be a witness for the defendant in the upcoming trial. His evidence as to the content of the representations is to be given vive voce. The defendant’s solicitors also act for a number of other defendants to similar recovery action commenced by the plaintiff, specifically Messrs Otway, Slee, Luxton, Gaffney and Olsen, and until his death, Mr Peter Bodycoat. Those defendants have also pleaded that Mr Broad made representations to them as agent for the plaintiff, on the basis of which they took out the relevant loans. It is anticipated that Mr Broad will be a witness or defendant in those other proceedings as well. It is currently anticipated that this proceeding will be heard before the proceedings concerning those other defendants.

Mr Broad produced the documents in response to the subpoenas to the solicitors for the defendant, who claim litigation privilege on behalf of the defendant in respect of certain of the documents.

The defendant took an initial objection to both subpoenas on the basis that they were an abuse of process because their effect would be to undermine the order that Mr Broad’s evidence be given vive voce. I rejected that application. At the conclusion of the first day of hearing, I granted an application by the plaintiff that Mr Marc Ryckmans, the solicitor for the defendant who had sworn an affidavit in support of the claim for privilege (‘First Ryckmans Affidavit’), attend for cross‑examination. The application was initially opposed by the defendant, but that opposition was later withdrawn.

In the period between the first and second dates on which the objection was heard, Mr Broad through the solicitors for the defendant produced one further document, in respect of which common interest privilege is claimed. Mr Ryckmans also swore a further affidavit (‘Second Ryckmans Affidavit’). He attended for cross‑examination on the second day and also gave brief evidence in chief and in reply.

The parties’ submissions developed over the course of the two days of hearing. For the purposes of these reasons I rely principally on the closing submissions after Mr Ryckmans’ cross‑examination, in particular the final exchange of written submissions each dated 14 June 2019. The plaintiff’s principal ultimate submission is that privilege is not made out in respect of any of the documents in contest. For the reasons I now give, I consider that correct. In the alternative, I accept the plaintiff’s alternative submission that the defendant through his lawyers waived any privilege he had in the documents by their use to defend other proceedings commenced by the plaintiff against other Timbercorp investors.

At the request of counsel for the defendant, and without objection from the plaintiff, I viewed all the documents in contest. That can be a problematic course if it would tend to support a privilege claim that is not established on evidence disclosed to the other side. In this instance, however, inspection confirms the plaintiff’s case that the documents in question were not created in circumstances of confidentiality, or were disclosed so as to waive any confidentiality.

Inspection also shows that the common interest privilege claim advanced by the defendant could not be made out, even if its requirements were otherwise satisfied, because the document the subject of the claim was disclosed not just to the persons said to have the common interest.

Documents in contest: as described by the defendant

The documents in contest first produced are in answer to Categories 4 and 5 of the subpoenas directed to Mr Broad and to Acute Business Services Pty Ltd. In short form, those Categories in each of the subpoenas required production of documents of any description sent by Mr Broad to the defendant or his solicitors or counsel ‘prior to, during or after a meeting’ Mr Broad attended with those solicitors and/or Mr Herskope of counsel in Perth on or about 21 or 22 January 2015 (Category 4) or documents of that description and timeline sent to him by the defendant or his solicitors or counsel (Category 5). Five documents produced in respect of Category 4, and two in respect of Category 5 are said to be privileged.

The documents in contest produced in answer to Category 4 are described in the First Ryckmans Affidavit as follows:

1) Email dated 3 February 2015 from Spencer Broad to Somerset Ryckmans and Alan Herskope regarding the cashflow sent to John Tomes on 8 May 2008.
2) Email dated 3 February 2015 from Spencer Broad to Somerset Ryckmans and Alan Herskope regarding the Financial Services Guide sent to John Tomes on 8 May 2008.
3) Email dated 4 February 2015 from Spencer Broad to Somerset Ryckmans and Alan Herskope regarding the meeting between Spencer Broad and John Tomes on 8 May 2008.
4) Email dated 3 February 2015 from Spencer Broad to Somerset Ryckmans and Alan Herskope regarding amended statement.
5) Draft statement of Spencer Broad dated 28 January 2015.

The documents in contest produced in answer to Category 5 are described in the First Ryckmans Affidavit as follows:

1) Email from Alan Herskope to Spencer Broad dated 4 February 2015 to Spencer Broad (sic) regarding meeting with John Tomes on 8 May 2008.
2) Email from Alan Herskope to Spencer Broad dated 27 June 2018 regarding draft statement.

The plaintiff’s final submission, after Mr Ryckmans’ cross‑examination, was that none of the documents in contest are privileged. At the first hearing, before Mr Ryckmans was cross-examined, the plaintiff had accepted that certain of those documents, being documents created in January and February of 2015, were the subject of legal professional privilege at their creation. Those documents consist of Mr Broad’s draft statement dated 28 January 2015 and the emails between Mr Broad, the solicitors for the defendant, and his then counsel, Mr Alan Herskope, in early February 2015. The plaintiff did not accept that that was the case in respect of the second contested document produced in answer to Category 5, the email identified as being dated 27 June 2018. For that reason, at that time I inspected that document only. As it is an email chain, I requested counsel for the defendant to elaborate its description to properly reflect that fact. The description now appears as Exhibit 1 in the defendant’s case and reads as follows:

Email chain comprising an email dated 3 February 2015 from Spencer Broad to Nicholas Fasullo; email dated 27 June 2018 from Spencer Broad to Alan Herskope; email dated 27 June 2018 from Alan Herskope to Spencer Broad; email dated 27 June 2018 from Spencer Broad to Alan Herskope; and email dated 27 June 2018 from Alan Herskope to Spencer Broad, all in relation to draft statement.

Mr Ryckmans in his Second Affidavit describes the document subsequently produced over which common interest privilege is claimed as ‘an email dated 28 January 2015 from Peter Bodycoat to Nicholas Fasullo of Somerset Ryckmans and Alan Herskope which had attached to it amongst other things a draft statement by Spencer Broad dated 28 January 2015’.[1] He deposes that it ‘does not fall within the subpoena’.[2] However, this point was not taken by counsel for the defendant in submissions and so I will consider it not to be pressed. For ease of reference I will call this later produced document the ‘Bodycoat Document’.
[1]Affidavit of Marc Ryckmans, sworn 6 June 2019, [9(e)] (‘Second Ryckmans Affidavit’).
[2]Second Ryckmans Affidavit, [12].

Submissions

In relation to the documents in contest first produced, and as an alternative submission in respect of the Bodycoat Document, the defendant asserts litigation privilege pursuant to s 119 of the Evidence Act 2008 (Vic) (‘Evidence Act’). I will set out this section, and other relevant portions of the Evidence Act, shortly.

The defendant’s primary submission in relation to the Bodycoat Document is that it is subject to common interest privilege pursuant to s 122(5)(c) of the Evidence Act. The defendant contends that each of himself, and the defendants in the similar proceedings commenced by the plaintiff against Luxton, Slee, Otway, Gaffney and Olsen ‘have a common interest in the draft statement by Spencer Broad dated 28 January 2015, which was attached to the email from Mr Bodycoat’.[3] The defendant does not include Mr Bodycoat in this list of persons with the claimed interest.
[3]Defendant’s Further Outline of Submissions dated 14 June 2019, [19].

In the alternative, the defendant submits that the Bodycoat Document is the subject of litigation privilege.[4] It is not expressly stated whose litigation privilege is being put forward in this alternative submission, but it can only be the defendant’s. Mr Tomes can only assert his own litigation privilege - he cannot assert it for other persons.
[4]Defendant’s Further Outline of Submissions dated 14 June 2019, [33]-[43].

The defendant does not rely on the exception relating to disclosure contained in s 122(5)(b) of the Evidence Act, which relates to disclosure by a client to another person concerning a ‘matter’ in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person.

The plaintiff’s primary closing submission is that the defendant has not established that the documents in contest were created or sent subject to an implied obligation that they be kept confidential, and so privilege is not established. In that regard, the plaintiff relies on Mr Ryckmans’ evidence in cross‑examination and the definition of ‘confidential communication’ and ‘confidential document’ contained in s 117 of the Evidence Act.

The plaintiff’s alternative submission is that the defendant has waived his privilege in these documents by acting inconsistently with the maintenance of the privilege. In that regard, the plaintiff relies on s 122 of the Evidence Act. This submission turns on the evidence given in the plaintiff’s case as to the nature of the defences pleaded by other defendants for whom Somerset Ryckmans act or acted, including Mr Bodycoat, and Mr Ryckmans’ evidence in cross‑examination as to the use the defendant’s lawyers and the other defendants could make of Mr Broad’s statement, or statements, in their defence.

In relation to common interest privilege as a defence or exception to the waiver of privilege by disclosure to Mr Bodycoat, the plaintiff submits that Mr Bodycoat did not have a sufficient commonality of interest in the claim made by the plaintiff against this defendant. The plaintiff submits that the fact that Mr Bodycoat, or other defendants, may have wished, or do wish, to advance the same case that Mr Broad was an agent of the plaintiff in making representations to the defendant in question is not the type of common interest sufficient to ground this exception.

Legal principles

Litigation privilege is the subject of s 119 of the Evidence Act, which provides as follows (emphasis in italics added):

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.

By virtue of s 131A of the Evidence Act, the privilege claimable by virtue of s 119 also applies to interlocutory procedures, including inspection of subpoenaed documents.

Litigation privilege has two components – a confidentiality requirement, and a purpose requirement. ‘Confidential communication’ and ‘confidential document’ are defined in s 117 of the Evidence Act as follows (italicised emphasis to ‘or’ added):

confidential communication means a communication made in such circumstances that, when it was made—
(a)       the person who made it; or
(b)       the person to whom it was made—
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law;
confidential document means a document prepared in such circumstances that, when it was prepared—
(a)       the person who prepared it; or
(b)       the person for whom it was prepared—
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law;

Loss of client legal privilege is the subject of s 122 of the Evidence Act, which relevantly provides as follows (emphasis in italics added):

122 Loss of client legal privilege—consent and related matters
(1) …
(2)Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

(3)Without limiting subsection (2), a client or party is taken to have so acted if—
(a)the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
(b)the substance of the evidence has been disclosed with the express or implied consent of the client or party.

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

(ii) as a result of duress or deception; or
(iii) under compulsion of law; or
(iv)if the client or party is a body established by, or a person holding an office under, an Australian law—to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held; or

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

(6) …

Elliot J summarised the principles relating to both litigation privilege and advice privilege (here not relevant) in IOOF Holdings Ltd v Maurice Blackburn Pty Ltd.[5] I set out the relevant portions of his summary of those principles, as they apply to litigation privilege as follows (citations omitted):[6]
[5][2016] VSC 311.
[6]Ibid [47].

(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) [relates to advice privilege - not here relevant].
(10) [relates to advice privilege - not here relevant].
(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) [relates to a law firm as a client - not here relevant].

Determination of the claim for privilege in this case turns largely on whether the documents in question were created subject to an obligation of confidentiality, and, if so, whether their contents have been disclosed. I have also been invited to view the documents, and have done so. One matter revealed by that inspection, but not disclosed in the defendant’s description of the documents, is that most of the emails in question copied in persons other than the sender and immediate recipient. It is helpful then to refer to some further authority relating to these issues.

Inspection

Inspection by the Court of documents said to be privileged can occasion difficulty if inspection would tend to support a privilege claim, as the issue may then be determined on the basis of material not available to one party.

In Hancock v Rinehart (Privilege),[7] Brereton J was very critical of a privilege claim entirely dependent on Court inspection of the documents in question. He refused to inspect the documents, given that the party claiming privilege, Mrs Rinehart, had not put on any admissible sworn evidence amenable to cross‑examination that was probative of the facts said to support the claim of privilege, in particular as to her purpose in making the communications in question. On that basis, he rejected the privilege claim. Brereton J noted that the best direct evidence as to purpose is that of the person who made the communication in question.
[7][2016] NSWSC 12.

Despite the stringency of his approach to inspection in that case, and the opposition to inspection expressed in some other cases, Brereton J observed that a court has the discretionary power to inspect documents said to be privileged for the purpose of adjudicating the claim, as opposed to proving it, and identified instances where this power has been exercised.

Confidentiality
Obligation

The definitions of ‘confidential communication’ and ‘confidential document’ in s 117 require an ‘obligation’ not to disclose the contents of the communication or document. An obligation is normally owed to someone.[8] In this case, while the defendant has not made submissions on the point, I infer that he contends the asserted obligation was owed to him, and by both Mr Broad and Mr Bodycoat (the senders of some of the documents) and the defendants’ lawyers (the creator of the Category 5 documents received by Mr Broad).
[8]New South Wales v Jackson [2007] NSWCA 279 (‘Jackson’) (Giles JA) [48].

The form of obligation is not limited to one imposed by law, or that arising as between solicitor and client, and can extend ‘to an unspoken obligation, and to an ethical, moral or social obligation’.[9]
[9]Jackson (n 8) [41]; cited and applied in Edwards v Vic Land Rehabilitation Pty Ltd [2012] VSC 188 [24] (‘Edwards’).

Presence of others

The fact that others are present for a communication between lawyer and client does not necessarily mean that the communication was not intended to be confidential.[10] The consequences of the physical presence of others arose in Edwards v Vic Land Rehabilitation Pty Ltd (‘Edwards’).[11] In Slea Pty Ltd v Connective Services Pty Ltd (‘Slea’),[12] Almond J applied the same reasoning he employed in Edwards to the inclusion of a third party in emails between solicitor and client.
[10]Edwards (n 9) [26]; Slea Pty Ltd v Connective Services Pty Ltd [2017] VSC 361 (‘Slea’).
[11]Edwards (n 9).
[12]Slea (n 10).

In Edwards, the first and second plaintiffs were former employees of the first defendant. They were proposing to set up a competing business, and sought legal advice as to whether they were bound by certain restraint of trade clauses. Potential customers of the plaintiffs attended meetings between the plaintiffs and their legal advisors in relation to this issue. Those potential customers later disclosed the advice there given. The former employer contended that the plaintiffs had thereby waived the privilege in that advice.

Almond J first considered whether the advice was given in circumstances where it was intended to be confidential, notwithstanding the presence of the potential customers. He held that it was, as the customers were bound by an ethical, moral or social obligation to maintain confidentiality of the advice. In other words, the customers owed an obligation of confidentiality to the plaintiffs to keep the advice confidential. Almond J also held that the ‘common interest’ that the potential customers had with the plaintiffs in resolving the restraint of trade issue was an ‘additional reason’ to import an obligation of confidentiality.[13] In other words, Almond J applied the principle of ‘common interest’, in a broad sense, not as an exception to waiver by disclosure, but to the initial issue of confidentiality.
[13]Edwards (n 9) [28].

In Slea, the funder of a party to litigation had been included in emails between the party and its lawyers. Almond J rejected the submission that this meant the emails were not confidential, and so could not be privileged. He held that:

In light of the funding agreement in this case, both the plaintiff and the funder share an interest in the successful prosecution of the litigation and the advice given in relation to the litigation. In the circumstances, I consider that each would expect the other to maintain confidentiality.[14]

[14]Slea (n 10) [32].

Almond J cited Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd (‘Rickard Constructions’)[15] as a similar instance where correspondence between a solicitor and funder of the litigation was held to be confidential and so privileged.
[15][2006] NSWSC 234 (‘Rickard Constructions’).

In Slea, Almond J inspected some of the documents to ascertain if there was any express statement as to confidentiality. He found that all the emails he examined were marked with the header ‘Privileged and confidential’ but held that such an express indication of an obligation of confidentiality was not necessary - the nature of the subject matter and context of the communications between the solicitor, the solicitor’s client and the funder of the litigation implied an obligation of confidentiality in any event.[16]
[16]Slea (n 10) [29]-[30].

Who must be under the obligation

One issue is whether or not both parties to the communication must be under an obligation not to further disclose it. I raised this question with the parties, and the plaintiff conceded that it is sufficient if one party, such as the defendant’s lawyers, was under the relevant obligation. The question is answered plainly both by construction of the definitions and by authority. The definitions of ‘confidential communication’ and ‘confidential document’ in s 117 only require, by the use of the word ‘or’, that one of the parties to the communication be under the necessary obligation. In State of New South Wales v Jackson (‘Jackson’) Giles JA, with whom Mason P and Beazley JA agreed, observed in relation to the equivalent provision in the New South Wales Act that, as compared with the common law:

Differential confidentiality does not matter for the definitions in the Act, since it is enough that one of the parties to the communication or the preparation of the document is under an obligation not to disclose its contents.[17]

[17]Jackson (n 8) [55].

In other words, it is not necessary for this element of litigation privilege that both the person making the communication or document and the person or persons receiving it, or for whom it was prepared, be under an obligation of confidentiality. It is sufficient if either sender/maker or recipient is. This is of particular relevance where, as here, documents pass between a client’s lawyers, and a witness. It will often be the case that the lawyers are under an obligation of confidentiality, having regard to their relationship with the client, but that is not necessarily the case in relation to a witness.

Jackson concerned an accident a pupil suffered at school in respect of which he subsequently took proceedings against the Department of Education. The school at the time of the accident had obtained statements from witnesses which were subsequently the subject of a litigation privilege claim when sought on subpoena directed to the school. An appeal from the ruling of the first instance judge that the statements were not privileged was dismissed. Giles JA, with whom Mason P and Beazley JA agreed, held that the statements were not privileged, because neither the Department of Education nor the witnesses had been under an obligation of confidentiality at the time of their creation. The approach of Giles JA in Jackson is also applicable in relation to inspection and some other aspects of this case.

Inspection to ascertain whether intended to be confidential

Giles JA reached this conclusion after inspecting the documents in question, notwithstanding his general reluctance to pay regard to material which cannot be known to the party claiming privilege. He did so because it was necessary to determine whether or not when the statements were prepared either the Department or the witnesses were under an obligation not to disclose their contents, and he considered that the statements may have ‘borne something on their face material to confidentiality’.[18] As will be seen, I consider that this approach applies here, and what the documents bear on their face has supported my conclusion drawn from the evidence of Mr Ryckmans.
[18]Jackson (n 8) [25].

Waiver

It is important to note that it flows from s 119 that the privilege is that of the client i.e. here, the defendant. He can only assert his own privilege, not that of others. Similarly, by virtue of s 122, it is only the client, through himself or his agents so authorised, who can lose the privilege by acting inconsistently with it. This was of relevance in Edwards, for example, where the disclosure was made by the potential customers of the plaintiffs, not by the plaintiffs themselves. Almond J held that as their disclosure was made without the authority of the plaintiffs, it did not result in loss of the plaintiffs’ privilege in the advice.[19]
[19]Edwards (n 9) [29]-[36].

In Jackson, Giles JA helpfully observed that in some cases the question of whether a communication or document is confidential is addressed in connection with the loss of client legal privilege by way of disclosure.[20] There is considerable overlap between the concept of ‘confidentiality’, which relates to whom the document may be disclosed to, and disclosure after creation, particularly where disclosure is immediately after creation. A document may be confidential on creation, and so privileged, but that privilege may be lost on subsequent disclosure.
[20]Jackson (n 8) [41].

Previous authority discussed by Giles JA illuminates the position, viewed through a confidentiality lens, of a document prepared or communication made in circumstances where it is to be kept confidential to a degree, but not entirely i.e. it may be disclosed beyond the creator and the recipient. In Amalgamated Television Services Ltd v Marsden[21] the New South Wales Court of Appeal held that a communication provided by a solicitor to the police was not confidential because while it could not be disclosed to the whole world, it could be used for the purposes of the police investigation. Similarly, in Seven Network Ltd v News Ltd,[22] Allsop P in the Full Federal Court observed in relation to a communication to the ACCC (in obiter because privilege was upheld on other grounds) that while the ACCC may have a policy of treating information given to it by informants ‘with a degree of confidence’ this did not mean that it was under an obligation not to disclose a summary of legal advice provided to it, as it may have to do so if it took the action the provider was seeking against the provider’s competitor.
[21][1999] NSWCA 97, discussed in Jackson (n 8) [44].
[22][2005] FCAFC 125, discussed in Jackson (n 8) [45].

In Spotless Group Ltd v Premier Building and Consulting Group Pty Ltd (‘Spotless’)[23] an obligation of confidentiality on the recipient of disclosed legal advice was important on the question of loss of privilege i.e. confidentiality viewed through a waiver lens. The Court of Appeal by majority (Chernov JA, Warren CJ agreeing; Neave JA dissenting) held that disclosure of certain legal advice by a client to the financiers of the litigation was not inconsistent with the maintenance of the client’s privilege in the advice. Nor was it inconsistent with that privilege to disclose the advice to the client’s public relations adviser for information for a limited and specific purpose. In respect of each such disclosure, Chernov JA accepted that the persons to whom the advice was disclosed were themselves under an obligation to keep it confidential.[24] This contrasts with the cases cited by Giles JA in Jackson where the authorities to whom confidential information was disclosed, were not themselves under an obligation of confidentiality.
[23](2006) 16 VR 1 (‘Spotless’).
[24]Spotless (n 23), (Chernov JA) [29]-[30].

Common interest privilege

The defendant’s submissions may treat common interest privilege as a distinct form of privilege. In my view this is incorrect. I consider the way the plaintiff has structured its submissions to be correct in that common interest privilege is by virtue of s 122(5)(c) of the Evidence Act an exception to waiver of the client’s privilege by disclosure. It is not a separate head of the client’s own litigation privilege.

It follows that the client, here the defendant, must first show that the document in question was privileged, and so necessarily that it was the subject of an obligation of confidentiality, to claim common interest privilege. The effect of s 122(5)(c) of the Evidence Act is that if a necessary common interest is established, then disclosure to the third party with that common interest does not automatically amount to waiver of the privilege.

The defendant asserts that he has a ‘common interest’ with the defendants Luxton, Slee, Otway, Gaffney and Olsen to other similar recovery proceedings instituted by the plaintiff in relation to Mr Broad’s dealings with Timbercorp, relevantly as to what Mr Broad was instructed to say to potential investors. The claimed common interest is a common defence and counterclaim to recovery based on similar or identical representations made by Mr Broad on instructions from the plaintiff. The plaintiff submits that this is not a sufficient ‘common interest’ for the purpose of the exception as the other defendants do not have the ‘self-same’ interest as Mr Tomes in the Tomes litigation.[25] They are not parties to the Tomes litigation, and so are not bound by any findings made in relation to Mr Broad’s evidence in the Tomes litigation. If Mr Broad’s evidence is not accepted in the Tomes’ litigation it may have practical implications for the similar defence they wish to run, but in the plaintiff’s submission this is not enough.
[25]Plaintiff’s Further Submissions dated 12 June 2019 [33].

The authorities on what constitutes a sufficient ‘common interest’ for the purpose of the exception are not easily reconcilable.

In Spotless, Chernov JA (with whom Warren CJ agreed) would have rejected the contention that a party to litigation has a sufficient common interest with its litigation financier to rely on this exception to waiver.[26] Chernov JA distinguished the ‘identity of interest’ as between an insurer and the insured, from the respective interests of a party to litigation and that party’s litigation financier. He held that while the party has a ‘direct’ interest in the outcome of the litigation, the financier’s interest is ‘indirect’, being that of a creditor. His observations were obiter, as he held that there had been no waiver of privilege in any event.
[26]Spotless (n 23), [34]-[35].

In Rickard Constructions, by contrast, Bergin J, a judge of the New South Wales Supreme Court, upheld a claim of common interest as between a litigation funder and funded party to litigation, holding that their interests were identical.[27] Bergin J did so after detailed consideration of the funding arrangement, and so it would appear that the issue is highly fact dependent.
[27]Rickard Constructions (n 15) [57].

As noted earlier, in Edwards Almond J held that the potential customers of the plaintiffs had a ‘common interest’ with the plaintiffs in resolving the restraint of trade issue. This was of relevance in establishing that they were under an obligation of confidentiality. He took the same approach in Slea, observing that the common interest of a litigation funder with its client is a factor that favours communications including the litigation funder being confidential.[28] In Edwards, Almond J also considered this ‘common interest’ in terms of the exception provided by s 122(5)(c) of the Evidence Act. He held that although the legal advice had been disclosed to the potential customers with the consent of the plaintiffs (in fact in the conference and so simultaneously with it being provided to the plaintiffs) the plaintiffs had not thereby waived their privilege in the advice because the potential customers had a ‘common interest’ with them in the issue the subject of the advice.[29]
[28]Slea (n 10) [32].
[29]Edwards (n 9) [36].

In Re Whitebox Trading Pty Ltd,[30] Gleeson J took a similarly broad view as to common interest, and did so after a detailed consideration of previous authority. He held that a number of entities and persons had a common interest, being ‘a common interest in responding to ASIC’s investigation and in addressing the perceived risk of legal proceedings being instigated by ASIC against them’, being a ‘joint defence strategy’.[31] This would appear to be similar to the common interest here relied upon. The conclusion was strictly obiter as his Honour concluded that the documents were not privileged in any event.
[30][2017] FCA 324.
[31]Ibid [50]-[51].

If disclosure of a document or communication that is otherwise privileged is shown, I infer from the structure of s 122 of the Evidence Act that the onus is on the party asserting common interest privilege to show that the exception set out in s 122(5)(c) applies and so disclosure does not amount to acting inconsistently with the maintenance of the privilege.

Evidence

The evidence consists of the two affidavits by Mr Ryckman, his oral evidence in chief, in cross‑examination and in reply; an affidavit of Shoshana May for the plaintiff exhibiting amongst other things the Defences and Counterclaims filed by Somerset Ryckmans for Luxton, Slee, Otway, Gaffney and Olsen; (‘May Affidavit’)[32] and the Defence and Counterclaim filed by Somerset Ryckmans for Mr Bodycoat dated 27 February 2015.[33]
[32]Affidavit of Shoshana May affirmed 14 May 2019.
[33]First Defendant's Defence and Counter-claim, dated 27 February 2015, proceeding S ECI 2014 259, Exhibit A.

Evidence in support of privilege claim

Mr Ryckmans’ evidence as to the circumstances in which the documents (emails and one or both statements) were created is as follows.

Who attended the meeting in Perth?

In his First Affidavit at paragraphs 3 and 5 Mr Ryckmans deposes that it was he who accompanied Mr Herskope to the meeting in Perth with Mr Broad on 21 or 22 January 2015. The thrust of the defendant’s case is that it was this meeting that generated the emails and witness statement or statements that followed, and are now the subject of the privilege claim. It transpires that it was not Mr Ryckmans who attended that meeting, but Mr Fasullo, a senior associate from his firm. Mr Ryckmans corrects this in paragraph 3 of this Second Affidavit.

Given that it was Mr Fasullo who attended the meeting, and has knowledge of what thereafter transpired in relation to the contested documents, it follows that Mr Ryckmans’ evidence as to the circumstances in which the statement or statements by Mr Broad were prepared and sent to Somerset Ryckmans is necessarily second hand. The solicitor who could give direct evidence of the circumstances in which those communications were made in support of the privilege claim, Mr Fasullo, does not do so. I asked Mr Ryckmans if there was any reason why there was no evidence from Mr Fasullo, to which he replied ‘probably not’.[34]
[34]Transcript of proceedings (Supreme Court of Victoria, S CI 2014 04921, Lansdowne AsJ, 12 June 2019), 150, 15-16.

Two statements or one?

In his First Affidavit at paragraph 3, Mr Ryckmans deposes (emphasis in italics added) that instructions were obtained from Mr Broad at the Perth meeting in relation to conversations he, Mr Broad, ‘had with the Defendant, and documents that had passed between him and the Defendant relevant to Timbercorp Securities Limited and the Plaintiff’. In paragraph 5 of that Affidavit Mr Ryckmans deposes that the documents in contest first produced arose from that meeting, and in paragraph 6 that shortly after the meeting the instructions were converted into a draft witness statement.

In the Second Ryckmans Affidavit, Mr Ryckmans deposes (emphasis in italics added) at paragraph 14 that at the Perth meeting instructions were obtained from Mr Broad ‘in relation to his involvement with Timbercorp Securities Limited and the Plaintiff’. In paragraph 15 of that Affidavit Mr Ryckmans deposes that ‘the oral instructions obtained from Mr Broad were converted into a draft witness statement, being the statement attached to the email from Mr Bodycoat’. In paragraph 18 of that Affidavit, Mr Ryckmans deposes that the ‘sole’ purpose of obtaining those instructions and subsequently the witness statement was for use in ‘proceedings filed by the Plaintiff’. In oral evidence in chief, he corrected or elaborated this evidence as follows:

… the sole purpose of obtaining those instructions in the witness statement was, indeed, for use in the proceedings filed by the plaintiff as against Mr Tomes at that time, but it was also intended, as I understand, to be used with respect to contemplated or anticipated legal proceedings that were understood to arise in respect of other Acute clients for whom Mr Peter Bodycoat and Spencer Broad acted and who introduced those clients to the Timbercorp Investments.[35]

[35]Ibid 83, 15-24.

In his cross‑examination, I gave Mr Ryckmans the opportunity to clarify how paragraph 18 should read, and he deleted the word ‘sole’, but otherwise his evidence was in substance the same as set out above, as applied to both the instructions and the witness statement.[36]
[36]Ibid 113, 30; 115, 2.

The Second Ryckmans Affidavit also sets out that Somerset Ryckmans also act for five other defendants Otway, Slee, Luxton, Gaffney and Olsen,[37] and (emphasis in italics added) that ‘the instructions obtained from Mr Broad on 21 and 22 January 2015 in relation to his involvement with Timbercorp Securities Limited and the Plaintiff, and draft witness statement [forming part of the Bodycoat Document] applied equally to the Defendant in this proceeding and each of [those other] Defendant[s]’.[38]
[37]Second Ryckmans Affidavit, [16].
[38]Ibid [19].

On close reading of the affidavits, leaving aside Mr Ryckmans’ cross‑examination for the moment, it is possible to discern a distinction between the instructions and draft witness statement relating to Mr Broad’s dealings with the defendant, and the instructions and draft witness statement relating to Mr Broad’s dealings with TSL and the plaintiff. In other words, that there are two distinct witness statements, with different content. In counsel’s submission, the first (document (5) in relation to Category 4) is the subject of the defendant’s litigation privilege. The second (the statement forming part of the Bodycoat Document) is the subject of common interest privilege. That the two statements contain different content is essential to the common interest privilege claim, made by Mr Fasullo on production of the Bodycoat Document, and by counsel.

The difficulty with this submission is that when cross‑examined, Mr Ryckmans could not say whether or not the statements were the same, or different. Mr Ryckmans’ initial evidence under cross‑examination was that he thought they may be different[39] but he could not give any cogent reason for that conclusion. The reason he advanced, that the statement identified as contested document (5) in response to Category 4 was initially produced and the Bodycoat Document was not initially produced, as it was not considered responsive to the subpoena, does not relate to the content of the statements, but as to who sent the emails attaching them. Mr Ryckmans’ evidence is that he has not read either closely and so cannot say without looking at them whether or not they are the same.[40] Ultimately he conceded that he did not know whether or not the statements are the same, or different.[41]
[39]Transcript of proceedings (Supreme Court of Victoria, S CI 2014 04921, Lansdowne AsJ, 12 June 2019), 86, 18.
[40]Ibid 86, 15-16; 87, 15-16; 21-22.
[41]Ibid 87-88, 30-1.

Mr Ryckmans’ inability to say if there are two witness statements or only one was perhaps the reason for his attempt in cross‑examination to draw a distinction between oral instructions obtained from Mr Broad, as deposed to in paragraph 4 of his First Affidavit, and Mr Broad’s witness statement or witness statements. His evidence at this point in his cross‑examination is that the oral instructions referred to in paragraph 4 were ‘relevant to Mr Tomes’. The purpose of the witness statement (in the context, the witness statement attached to the Bodycoat Document) by contrast was ‘that it was relevant to the preparation of both Mr Tomes’ proceeding and other anticipated proceedings relating to Acute clients for which my firm would act’.[42]
[42]Ibid 115, 9; 117, 20.

The distinction is neither clear not particularly helpful. It is also inconsistent with evidence Mr Ryckmans gave later in his cross‑examination in relation to the draft witness statement referred to in paragraph 15 of his Second Affidavit. The draft witness statement is identified in that paragraph as the draft witness statement forming part of the Bodycoat Document. At this point in his cross‑examination he said it was for the purpose of the Tomes proceeding.[43]
[43]Ibid 131, 5-12.

There is also a possible conflict between Mr Ryckmans’ evidence‑in‑chief in his Second Affidavit, his evidence in cross‑examination, and the submissions by his counsel as to the basis of the claim for privilege and the submissions by counsel. In his Second Affidavit, Mr Ryckmans claims common interest privilege only in relation to the Bodycoat Document. In cross‑examination, he said that, to the extent there had been any disclosure, common interest privilege was also an additional or alternative basis to litigation privilege in relation to the contested documents first produced.[44] By contrast, counsel for the defendant makes the common interest submission only in relation to the Bodycoat Document.
[44]Ibid 142, 20-27; 143, 17-20; 27-29.

In short, Mr Ryckmans’ evidence on the basic issue of whether there were two statements or only one, and the purpose of its or their creation, is confusing, contradictory and inadequate.

Disclosure of Mr Broad’s statement or statements

It is apparent from the description of the Bodycoat Document that it is an email attaching a statement by Mr Broad (though unclear from the description which statement, if indeed there are two). Mr Ryckmans was unable to say in cross‑examination how Mr Bodycoat obtained the statement. He had no knowledge as to whether or not it was provided to Mr Bodycoat by Mr Fasullo, an issue going directly to disclosure with the implied consent of the defendant.[45]
[45]Ibid 88-89.

Mr Ryckmans agreed in cross‑examination, when shown a defence for Mr Bodycoat to recovery proceedings commenced by the plaintiff,[46] that his firm had acted for Mr Bodycoat and prepared that defence. He said that Mr Bodycoat had died in 2016 or 2017, and could not say whether or not his firm still acted for Mr Bodycoat’s estate in those recovery proceedings.[47] He also agreed that the defence advanced by Mr Bodycoat in his Defence and Counterclaim dated 27 February 2015 of reliance on representations made by Mr Broad as agent for the plaintiff was ‘in substance the same’ as the defence advanced by the defendant in this proceeding, Mr Tomes, in his Defence and Counterclaim dated 10 February 2015.[48] When pressed to compare the particulars as to the source of the instructions to Mr Broad to make these representations in each defence, Mr Ryckmans agreed that the particulars are expressed in identical terms. A portion that is in identical, or near identical terms, is as follows (differences being italicised):

Broad was given instructions by Peterson (in the defendant’s Defence Andrew Peterson) (National General Manager of Timbercorp) and Bolger ( in the defendant’s Defence Chris Bolger) (Business Development Manager, Western Australia of Timbercorp) to the effect of the oral Representations particularised below. Bolger was, in turn, directed by Sol Rabinowicz (Chief Executive Officer of Timbercorp) to inform financial advisers to the effect of the Representations particularised below.[49]

[46]First Defendant’s Defence and Counterclaim dated 27 February 2015 in proceeding S ECI 2014 000259.

[47]Transcript of proceedings (Supreme Court of Victoria, S CI 2014 04921, Lansdowne AsJ, 12 June 2019), 89-92.

[48]Ibid 92, 25-29; Affidavit of Shoshana May, affirmed 14 May 2019, Exhibit SM-5, mistakenly dated 10 February 2014.

[49]Part of the Particulars to [5(b)] of First Defendant's Defence and Counter-claim, dated 27 February 2015, proceeding S ECI 2014 259, Exhibit A and part of the Particulars to [5(b)] of Affidavit of Shoshana May, affirmed 14 May 2019, Exhibit SM-5 (the differences to Exhibit A being in brackets).

Mr Ryckmans was unable to say whether or not Mr Bodycoat used Mr Broad’s statement dated 28 January 2015 in the preparation of his (Mr Bodycoat’s) Defence, but said that he did not recall any ‘intervening’ statement by Mr Broad between 2015 and 2018.[50] Ultimately on this point Mr Ryckmans agreed that the only statement Mr Broad provided ‘in relation to your preparation of defences for clients being sued by Timbercorp Finance was the statement dated 28 January 2015’.[51]
[50]Transcript of proceedings (Supreme Court of Victoria, S CI 2014 04921, Lansdowne AsJ, 12 June 2019), 96-99.
[51]Ibid 100, 1-5.

When questioned in relation to the correctness of paragraph 7 of his First Affidavit, Mr Ryckmans said that while he accepted that Mr Broad’s statement is attached to Mr Bodycoat’s email, from ‘my firm’s perspective’ the witness statement (it is unclear to which statement he was referring, if there are two) ‘has never been, in effect disseminated to any of the other defendants’. He added (here summarised):

The matters contained in the witness statement …are similar to instructions I have taken from Mr Broad in connection with the preparation of the defences and counterclaims in respect to the five other matters …in which five defences were prepared.[52]

[52]Ibid 134, 1-20.

It may be that Mr Ryckmans was here referring to provision of the statement itself, as opposed to its use in defences for other defendants, to which I now come.

Purpose and use of the instructions and statements

The purpose of the instructions when given and Mr Broad’s statements when created goes to the issue of confidentiality. I set out earlier the evidence Mr Ryckmans gave in chief and later in cross‑examination to correct paragraph 18 of this Second Affidavit in relation to the statement of Mr Broad identified in paragraph 9(e) of that affidavit. That evidence did not limit the potential use of that statement to clients of Acute for whom Mr Ryckmans firm acted. He was asked about this at a different point in his cross‑examination. As Mr Ryckmans was unable to say whether the statement there referred to was the same or different in content to the statement of the same date described as contested item (5) in response to Category 4, he was asked about the purpose of one or both of them in cross‑examination.

The clear inference from his initial answer to that question was that the statements were obtained for use in litigation commenced against any Acute client, irrespective of whether his firm acted for that client or not.[53] He then sought to change his evidence to carve out Acute clients for whom his firm did not act, so that his evidence became that the statements were obtained for use in the Tomes litigation, and ‘other potential litigation that would involve Acute clients for whom my firm would act’.[54] In fact, nothing turns on the distinction, for the purposes of common interest privilege. As was noted by Gleeson J in his summary of authority relating to common interest privilege Inthe Matter of Whitebox Trading Pty Ltd[55] it is not necessary that persons with a common interest retain the same solicitor.
[53]Ibid 134, 13-30.
[54]Ibid 107, 15; 108, 3.
[55][2017] FCA 324.

Mr Ryckmans was also cross‑examined about the use to which either of the statements was in fact put, as opposed to the purpose of their creation. The question of use goes to disclosure, if Mr Tomes initially had privilege in the statements. Mr Ryckmans agreed that the statement (or statements) was used for Mr Tomes’ defence.[56] His answers to the question as to whether the statement, or statements, were used in the preparation of the defences of the other defendants were less clear. He answered at different times, to essentially this same question, ‘no’,[57] then ‘yes’ (as to part of either statement),[58] then ‘in a sense’ the statement was used, elaborating this as follows:

In a sense the statement was used- ah, in preparing those defences, instructions were taken by (sic) Broad which were oral communications between myself, um, and my firm and Broad which were of the – in substance, the same nature, um, as what Mr Broad had originally provided as instructions back on 21 or 22 January, um, both orally and by way of written statements.[59]

[56]Transcript of proceedings (Supreme Court of Victoria, S CI 2014 04921, Lansdowne AsJ, 12 June 2019), 108, 4-5.

[57]Ibid 108, 6-9.

[58]Ibid 108, 31-109, 3.

[59]Ibid 109, 30-110, 6.

Mr Ryckmans then agreed with counsel for the plaintiff’s summary that one or other of the statements was used in the preparation of the defences for the other defendants for whom his firm acted but at later date similar instructions permitting the pleading of those defences were provided. The summary as put and agreed was that those instructions were given in 2017 or 2018, but as Mr Ryckmans’ evidence was that he had met Mr Broad in early March 2017 and earlier in 2015 or 2016 the fairer inference may be that in cross‑examination he agreed that he received similar instructions at the meetings in 2015 or 2016, and/or March 2017. [60]
[60]Ibid 110, 19-111, 8.

Mr Ryckmans’ evidence on this point was clarified in re-examination. He reiterated that he had first met Mr Broad and Mr Bodycoat in either 2015 or 2016 (he could not be more precise as to the date) and in March 2017. He said that when he first met Mr Broad and Mr Bodycoat in 2015 or 2016 his firm was acting for more defendants than Mr Tomes, although he could not say for certain whether it was all of the clients for whom they filed defences. He said that the purpose of this first meeting was ‘to put a face to a name’ and that he sought instructions from Mr Broad ‘for the purposes of the various matters in which my firm was acting as to his involvement with the Timbercorp group’. The questions Mr Ryckmans was then asked in re-examination and his answers are as follows:

Are you able to be more specific in regard to the substance of the conversation, what was said?‑‑‑I – I – I recall that Mr Broad indicated to me that he was an authorised representative of Timbercorp, and in that capacity had introduced clients of Acute, including those for whom my firm was then acting, to the investments in Timbercorp. Mr Broad also indicated to me that at the time he introduced the various defendants – Acute clients to the Timbercorp schemes, he made various representations to those investors or to those clients to encourage them to invest, and that those representations that he made were representations that he had been authorised to make by Mr Chris Bolger – I recall that initially it was with Mr Chris Bolger, and I – I can't recall at the time, but certainly later in further conversations he referred to a Mr Peterson, the two main people he dealt with at Timbercorp, and who had authorised him to make the various statements that he did to the investors were Chris Bolger and Mr Peterson, and that with respect to all of his Acute clients, he essentially was authorised to make the same representations to each of those clients, and he did in fact make those representations to each of those clients.
And were there subsequent discussions in regard to the issues that you've just explained to the court, relevant to your meeting in 2015 or 16?‑‑‑I had numerous phone conversations with Mr Broad, but specifically the meeting in March 2017, which was intended by a number of the Timbercorp investors – sorry, the Acute clients who were Timbercorp investors. At those meetings I took instructions from the Acute clients who had attended that meeting and also instructions from Mr Broad, where he again reiterated the representations which are contained in the Tomes defence and counterclaim and repeated in the defences and counterclaims, so of each of the five other matters in which defences have been filed, and at that time, in those communications Mr Broad again indicated that although he would use the broad phrase 'I was authorised by Timbercorp to make the following statements or representations to each of the Acute clients', but as he had on numerous occasions spoken about Mr Bolger and Mr Peterson, I then – I – I took his comments about being authorised by Timbercorp as being a reference to those persons.[61]

[61]Ibid 156, 15-157-29.

Mr Ryckmans was asked at the end of his cross‑examination whether either or both of the Broad statements could be used by other defendants in their own proceedings. He initially said no, but then agreed that they could, subject to common interest privilege.[62]
[62]Ibid 148, 4-17; 148, 29–149, 31.

Who wrote the statement or statements?

Mr Ryckmans was also unable to say from direct knowledge who wrote the Broad statement or statements. In cross‑examination all he could say was that he did not, and that it was ‘his understanding’ that Mr Broad himself wrote the statement or statements, based on discussions with Mr Broad, and the fact that he was not aware of Mr Fasullo writing the statement(s), and does not recall Mr Herskope indicating that he had done so.[63] Who wrote the statements is important, because as noted earlier in the section of these reasons setting out the relevant legal principles, it is the purpose of the creator of the document that is ordinarily relevant.
[63]Ibid 123, 13-14; 124 4-13; 127, 15-27.

Mr Ryckmans was cross‑examined in relation to his evidence that neither solicitor nor counsel wrote the statement or statements on the basis of paragraph 6 of the First Ryckmans Affidavit. That paragraph states ‘Shortly after the meeting on 21 or 22 January 2015 the oral instructions obtained from Mr Broad were converted into a draft witness statement’. The ordinary construction of this sentence is that it was a solicitor or counsel who wrote the draft witness statement - a witness does not take instructions from himself. This does not sit well with Mr Ryckmans’ belief that Mr Broad wrote his own statement or statements.

The same passive tense is used in paragraph 15 of Mr Ryckmans’ Second Affidavit in relation to the draft witness statement there identified. In cross‑examination on that paragraph as to who wrote that witness statement, Mr Ryckmans gave evidence to the same effect as in relation to the witness statement identified in paragraph 6 of his First Affidavit i.e. that Mr Broad prepared the statement, adding that it was for use in the Tomes proceeding.[64] As noted earlier, this conflicts with his evidence earlier in his cross‑examination that this statement was for use in multiple proceedings.
[64]Ibid 132, 7-25.

Who wrote the statement or statements is a matter that should have been made clear in the evidence. The use of the passive tense is entirely unhelpful if it was someone other than a lawyer who did so. There are indeed some indications in the evidence that it was possibly not a solicitor who wrote the statement or statements. The Bill of Costs prepared for the defendant exhibited to the May Affidavit has an entry recording work by Mr Fasullo on 26 January 2015 transcribing his notes of the meeting and sending them to Mr Herskope, but there is no item of work to which I was taken recording the creation by Mr Fasullo of a statement for Mr Broad, only entries recording that each of Mr Ryckmans and Mr Fasullo perused draft statements from, amongst others, Mr Broad.[65] In the absence of direct evidence as to who wrote the statements, however, I am unable to make a finding on that issue.
[65]Affidavit of Shoshana May, affirmed 14 May 2019, Exhibit SM-13, items 105, 110, 111.

When Mr Herskope ceased to act

In paragraphs 21-22 of his Second Affidavit Mr Ryckmans deposes that Mr Alan Herskope remained counsel for Mr Tomes and the other five defendants until the retention of new counsel on 5 and then 6 July 2018.

This is in contrast to an earlier affidavit sworn by Mr Ryckmans on 19 July 2018 in this proceeding in support of an application for an extension of time to file amended defences in this proceeding and the other five proceedings in which Somerset Ryckmans act for the defendants.[66] The time that had been ordered for those defences was 29 June 2018. For a number of reasons set out in the affidavit, Mr Ryckmans sought an extension of time, which was granted. Mr Ryckmans there deposed that one of those matters was that ‘(a)pproximately three weeks ago’ new counsel were retained in lieu of Mr Herskope to act for the defendants.[67] Three weeks before 19 July 2018 was 28 June 2018, one day after the date of the email chain being contested document (2) produced in answer to Category 5. In other words, new counsel was retained not on 5 and 6 July 2018, but approximately on 28 June 2018.
[66]Affidavit of Shoshana May, affirmed 14 May 2019, Exhibit SM-12.
[67]Ibid [16].

In cross‑examination Mr Ryckmans said that the evidence in his Second Affidavit was correct. He said there was no ‘hard and fast axing’ and that although there was a degree of unhappiness with Mr Herskope for personal reasons prior to the engagement of new counsel, Mr Herskope’s retainer was not terminated until that new counsel was engaged.[68]
[68]Transcript of proceedings (Supreme Court of Victoria, S CI 2014 04921, Lansdowne AsJ, 12 June 2019), 145, 28, and generally 144-147.

Evidence against privilege claim

I have set out above some aspects of the plaintiff’s evidence in opposition to the privilege claim. The thrust of the remainder of Ms May’s affidavit is directed to putting into evidence the defences and counterclaims filed by Mr Ryckmans’ firm in September 2018 in the plaintiff’s recovery proceedings against Luxton, Slee, Otway, Gaffney and Olsen, for the purposes of comparison with the latest defence filed in this proceeding, dated 20 December 2018. [69] What those exhibits show is first that in each case the defendant alleges that Mr Broad made representations to them similar in content, although the dates on which and places at which they were made differ. Second, in each case the defendant alleges that Mr Broad made those representations as the agent of the plaintiff, because he was instructed to do so by either Mr Bolger alone (Luxton) or by both Messrs Peterson and Bolger (Slee, Otway, Gaffney, Olsen and Tomes).
[69]Affidavit of Shoshana May, affirmed 14 May 2019, Exhibit SM-6 to SM-11 respectively.

Consideration
Summary

The plaintiff submits that the Court cannot be satisfied on the basis of Mr Ryckmans’ evidence that either of the statements by Mr Broad were created or communicated subject to an obligation that they be kept confidential. In the alternative, the plaintiff submits that the defendant has waived his privilege in the statement or statements.

The account I have set out above of Mr Ryckmans’ evidence shows it to be confused, uninformed on significant issues, and, for reasons I will shortly elaborate, inadequate to support the privilege claim. As it is not shown that the defendant initially held privilege in the statement or statements, and emails relating to them, then the common interest privilege claim must also fail.

The first reason for this conclusion is that the defendant’s case on privilege rests on there being two statements by Mr Broad, one relating to his dealings with the defendant, and the other relating to his dealing with TSL or Timbercorp generally. Counsel for the defendant asserts the defendant’s privilege in the first, and common interest privilege of the defendant and others in the second. Mr Ryckmans had to concede in cross‑examination, however, that he could not say if the statement identified by him in the First Ryckmans Affidavit as contested document (5) to Category 4 of the subpoena and the statement identified by him as part of the Bodycoat Document in the Second Ryckmans Affidavit were in fact different.

Next, the defendant’s case depends on Mr Broad’s statement or statements, and the emails relating to them, having been prepared subject to an obligation to keep them confidential to the defendant and his lawyers (in the case of any statement dealing with Mr Broad’s relationship with the defendant) and only disclosed to other defendants with a common interest (in the case of any statement dealing with Mr Broad’s relationship with Timbercorp). Mr Ryckmans cannot say, however, who wrote the statement or statements (other than it was not him) or who provided it, or one of them, to Mr Bodycoat (other than to say he does not believe it was his firm).

Indeed Mr Ryckmans cannot give any pertinent first hand evidence in relation to either the meeting with Mr Broad in Perth in January 2015 or the documents that resulted therefrom. He was not the solicitor who attended, with then counsel Mr Herskope, the meeting with Mr Broad in Perth in January 2015 that led to the creation of the emails and statement, or statements, in contest. Nor does it appear that he has obtained information from Mr Fasullo as to these matters, or even personally reviewed the documents the subject of the privilege claim, at least in any detail, to supplement his knowledge of the circumstances in which they were created and their content. Thus there is no cogent evidence of the intentions of the person who wrote the statement or statements, or the circumstances in which he or she did so, and, in particular whether they were created under an obligation of confidentiality.

It is Mr Fasullo who attended the meeting, and Mr Fasullo who signed the two letters claiming privilege in respect of the contested documents. The first letter claims the defendant’s privilege in respect of the documents first produced.[70] The second letter, in respect of the Bodycoat Document, is not in evidence. It is attached to the Bodycoat Document and on inspection, it is also signed by Mr Fasullo and claims common interest privilege on behalf of the defendant in that document. I infer that Mr Fasullo could give, at least in relation to some matters, evidence based on his personal knowledge, yet he does not and there is no explanation why not.
[70]Affidavit of Shoshana May, affirmed 14 May 2019, Exhibit SM-2.

There is also a critical gap in the defendant’s case in relation to common interest privilege. It is obvious from the description of the Bodycoat Document that someone provided a statement by Mr Broad to Mr Bodycoat. If this disclosure is to be the subject of a common interest privilege exception to what could otherwise amount to waiver (if the defendant did originally have privilege in the statement) then it must be shown that Mr Bodycoat had a common interest with the defendant. Yet this did not form part of Mr Ryckmans’ evidence in chief in support of common interest privilege and nor is it made explicit in counsel’s submissions. Instead both Mr Ryckmans and counsel for the defendant focus on disclosure of a statement of Mr Broad to the other five defendants for whom Somserset Ryckmans act, Luxton, Gaffney, Olsen, Otway and Slee. It is the plaintiff who has established, through cross‑examination of Mr Ryckmans, that in fact Mr Bodycoat’s defence is substantially identical to that of the defendant, and the other named defendants for whom Somerset Ryckmans act, in so far as it relates to what Mr Broad was instructed by Timbercorp to represent to Mr Bodycoat.

I will assume in favour of the defendant that his case on common interest privilege should in fairness be extended to Mr Bodycoat, to whom it is plain a statement by Mr Broad was disclosed. The case for common interest privilege requires first that the document in question, subsequently disclosed to others with a claimed common interest, was on creation privileged in the hands of the defendant. I will turn shortly to that question, but first summarise what is revealed by inspection of the documents.

Counsel for the defendant invites me to inspect the documents in contest, implicitly because of the deficiencies in Mr Ryckmans’ evidence. Without objection from the plaintiff, I have done so. What that inspection shows is that the two statements are indeed different in content, and, as counsel submits, the draft witness statement identified as contested document (5) in response to Category 4 concerns Mr Broad’s dealings with this defendant, whereas the draft witness statement of the same date forming part of the Bodycoat Document concerns Mr Broad’s dealings with Timbercorp and its representatives, including Mr Bolger and Mr Peterson. To this extent inspection of the documents gives some support to the case the defendant makes.

Inspection also reveals, however, that almost all of the emails in question were copied to persons in addition to Mr Broad, and the defendant’s lawyers. Further, the email from Mr Bodycoat forming part of the Bodycoat Document attaches a number of statements, including by persons other than Mr Broad, and two statements by Mr Broad. Only one of these statements is currently produced. The email from Mr Bodycoat is also in response to an email from Mr Fasullo, to which Mr Fasullo copied in a number of other persons. Neither the copying in other people nor the attachment of multiple statements to the Bodycoat Document is apparent from the description given of the documents in Mr Ryckmans’ affidavits.

Privilege

The starting point for analysis is the requirements for litigation privilege. As noted earlier, s 119 sets out two requirements – a confidentiality requirement, and a purpose requirement. In my view, the defendant in his submissions has failed to fully grapple with the confidentiality requirement. The defendant’s final written submissions focus on the content of the documents in question, not whether or not they were created in circumstances of confidentiality.[71] To give one example, counsel for the defendant submits, in relation to the communications between Mr Broad and the legal representatives for the defendant, that ‘inspection of the documents will confirm the position that the documents are only concerned with the Defendant’.[72] As noted, inspection shows that that is indeed the case in respect of the emails and draft witness statement first produced, but it is not enough to establish privilege because it does not in itself show that on their creation the person sending the emails or creating the witness statement did so under an obligation of confidentiality to the defendant.
[71]For example, see Defendant’s Further Outline of Submissions dated 14 June 2019 [7], [10], [25].
[72]Ibid, [7].

Emails between Mr Broad and the defendants’ lawyers: Categories 4 and 5

What inspection of the documents in contest first produced shows is that none of the emails from Mr Broad to the solicitors or counsel for the defendant were sent only to those lawyers. Nor was an email of 3 February 2015 sent by Mr Fasullo to Mr Broad sent only to Mr Broad and other lawyers for the defendant. They were all sent in addition to Mr Peter Bodycoat and Mr Chris Bolger. This includes the email from Mr Broad to which he attaches his statement, and Mr Fasullo’s request for that statement.

In other words, Mr Fasullo sent his request for the statement not just to Mr Broad, and Mr Broad responded with the statement not just to the defendant’s lawyers, but each copied in Mr Bolger and Mr Bodycoat as well.

The extent of the distribution of the emails was not identified by the defendant in the evidence in support of the claim for privilege, and as the plaintiff has not viewed the documents, it was not aware of it. I considered whether to call for further submissions on this point, but concluded that that is not necessary or appropriate. To do so would be to give the defendant a further opportunity to establish its case, which it has already had,[73] and it is the defendant who asked me to view the documents. I do not consider it necessary to give the defendant a further opportunity to make submissions on what that inspection reveals.
[73]Order 4 I made on 15 May 2019 enabled the defendant to file further evidence.

The fact that Mr Broad sent a copy of his statement to people beyond the defendant’s lawyers would seem on its face to show that he did not regard himself as being under an obligation to only send the statement and related information to the defendant and his lawyers. Edwards and Slea illustrate, however, that the inclusion of people beyond the client and his lawyers in a communication between lawyer and client is not necessarily fatal to the confidentiality of the communication, if all those additional people were also under an obligation of confidentiality to the client. There may be some doubt as to whether this same approach could apply to a communication between lawyer and witness, but assuming that it can, the question then becomes in relation to communications from Mr Broad to the defendant’s lawyers which he copied to other persons, whether those other persons were under an obligation of confidentiality to the defendant.

There is no evidence to establish this. Nor is there anything on inspection of the emails to show it. Unlike the case in Slea, there is nothing on the face of the emails from Mr Broad to the defendant’s lawyers copied also to Mr Bodycoat and Mr Bolger which specifically informs those added persons that the contents are confidential. The only disclaimer that the contents of the email are ‘privileged and confidential’ is contained in small type under the sender’s details. It is plainly a pro forma disclaimer. Nor does the character of the added persons tend to support that they were under an obligation of confidentiality to the defendant. They are not shown to be litigation funders, as in Slea. They are not shown to be persons intending to contract with the defendant, as in Edwards. There is in fact no evidence of any relationship between Mr Tomes and these persons. At the very highest, the evidence adduced in cross‑examination could suggest that Mr Bodycoat had a common interest with the defendant in the form of defence he proposed to make to the plaintiff’s recovery claim. A common interest with a lawyer’s client was held in Edwards to support the view that the holder was under an obligation of confidentiality to that client. There is, however, no evidence to show that Mr Bolger intended to mount a similar defence, and he is copied into every email from Mr Broad.

In any event the common interest as claimed by counsel (at most in relation to Mr Bodycoat) relates to Mr Broad’s evidence about what he was instructed to say by the plaintiff, not what he said to a particular defendant. In other words, this argument in support of confidentiality could only apply to the statement attached to the Bodycoat Document, not the statement that forms part of the contested communications identified in the First Ryckmans Affidavit.

I conclude that the defendant has not shown that Mr Bodycoat or Mr Bolger were under an obligation of confidentiality in relation to the information sent to them by Mr Broad.

Had it only been Mr Broad who copied his communications to the defendant’s lawyers to those other persons, and if it were shown that he had been wrong in assuming that he could do so, then a case could perhaps have been made that the emails and statement were confidential within the meaning of s 117. This is because it is sufficient that one party to a communication, here the defendant through his lawyers, is under an obligation to keep it confidential. If privileged on that basis, and Mr Broad’s disclosure was not authorised, then it would not amount to waiver of the defendant’s privilege.

Mr Ryckmans does not disclose in his affidavits that other persons were copied into the emails from Mr Broad. Unsurprisingly then, he gives no evidence as to his firm’s attitude to this, in particular whether his firm asked Mr Broad to keep his statement confidential, or criticised him for not doing so when it became aware, on receipt of the emails, that he had copied in other persons. In fact, the documents on inspection show not only that Somerset Ryckman did not criticise or upbraid Mr Broad for providing his statement to others, Mr Fasullo implicitly encouraged him in that course by copying in those same persons, Mr Bodycoat and Mr Bolger, to his own email of 3 February 2015 to Mr Broad, asking for his statement. This request email forms part of the document identified as (4) ‘Email dated 3 February 2015 from Spencer Broad to Somerset Ryckmans and Alan Herskope regarding amended statement’, which is actually an email chain.

In my view, the fact that Mr Fasullo sent his email of 3 February 2015 requesting Mr Broad’s statement not just to Mr Broad and the other lawyers for the defendant, but also to Mr Bodycoat and Mr Bolger, shows that Mr Fasullo did not regard himself as being under an express or implied obligation not to disclose the subject matter of his email beyond Mr Broad and other lawyers acting for the defendant. My view is supported by two further aspects of this request email. First, the subject of the email is given as ‘Timbercorp’ i.e. not ‘Timbercorp v Tomes’. Second, although the email does specifically request information concerning Mr Broad’s dealings with Mr Tomes, for the purpose of Mr Tomes’ defence, it also refers to preparation of the defence for Mr Bodycoat. There is no express indication in Mr Fasullo’s request email that any of the added persons are under an obligation of confidentiality, other than the same form of small type pro forma disclaimer under the sender’s details as appears in Mr Broad’s emails.

The document identified as (1) in response to Category 5 suffers from the same difficulty in relation to confidentiality. Mr Herskope sent this email not just to Mr Broad, and the other lawyers acting for the defendant, but also to Mr Bodycoat and Mr Bolger.

What the inclusion of persons other than Mr Broad and the defendants’ lawyers in these emails passing between them shows is that their content was not regarded by either Mr Broad or the defendant’s lawyers as confidential to the defendant and his lawyers. For that reason, they are not privileged.

The email chain identified as (2) produced in response to Category 5 is different from the other documents identified in the First Ryckmans Affidavit in relation to date (evident from the description given by Mr Ryckmans), primary sender and recipient (Mr Herskope as opposed to Somerset Ryckmans), and, on inspection, also distribution. Dealing with distribution first, these emails passed only between Mr Herskope and Mr Broad. One of them is a resending of Mr Broad’s email of 3 February 2015 (which is document (1) produced in answer to Category 4), but on this occasion sent only to Mr Herskope. As discussed earlier, the 3 February 2015 email was copied on creation to other persons, and so is not privileged. A copy of a document which is not privileged, can, however, be privileged if sent or created with the necessary requirements.

In relation to Mr Herskope as sender and recipient in this email chain, the plaintiff initially questioned whether Mr Herskope was still acting for the defendant, as opposed to other defendants, as at 27 June 2018. Mr Ryckman’s evidence in his Second Affidavit is that Mr Herskope was still retained for the defendant, as well as other defendants on that date and was so retained until new counsel was retained, first on 5 July 2018 and then again on 6 July 2018.[74] Mr Ryckmans did not substantially depart from this evidence in cross‑examination, although he conceded that there was some unhappiness with Mr Herskope prior to the retention of new counsel. I accept his evidence.
[74]Second Ryckmans Affidavit, [21], [22].

It follows then that as at the date of these emails, Mr Herskope acted for the defendant, and his communications with Mr Broad passed only between the two of them. In relation to the date, orders were made on 16 February 2018 for this defendant, and the other defendants, to file and serve amended defences by 29 June 2018. These emails between Mr Herskope and Mr Broad, relating to Mr Broad’s draft statement, were sent two days before that compliance date.

In summary then, these emails relate to an exchange solely between this defendant’s counsel and a witness in this defendant’s case, in relation to that witness’s ‘draft statement’, at a time when it was to be expected that counsel was endeavouring to prepare an amended defence for this defendant (albeit potentially for other defendants as well). Had there been only one statement of Mr Broad in purview, then I would consider that the defendant had established privilege in this email chain (although not in the statement on creation). The defendant’s case depends, however, on there being two statements, of distinct content, one relating solely to Mr Tomes, and the other relating to all Acute clients, which was not intended to be confidential to Mr Tomes. The elaborated description given of this email chain by counsel for the defendant does not identify which statement was the subject of the emails. For that reason, I conclude that the defendant has not established that Mr Tomes holds the privilege in this email chain.

In summary, I conclude that the defendant has failed to show that the documents first produced in response to Category 4 and Category 5, as identified in the First Ryckmans’ Affidavit, are the subject of litigation privilege held by the defendant. The defendant has not shown that his lawyers, Mr Broad, or the other persons to whom the emails were copied were under an express or implied obligation not to disclose the contents of those documents to other persons.

Bodycoat Document

This document is described by Mr Ryckmans in his Second Affidavit as ‘an email dated 28 January 2015 from Peter Bodycoat to Nicholas Fasullo of Somerset Ryckmans and Alan Herskope which had attached to it amongst other things a draft statement by Spencer Broad dated 28 January 2015.’[75]
[75]Second Ryckmans Affidavit, [9].

As noted, on inspection the draft statement there identified is shown to be a different statement to that produced in response to Category 4. This was not established in the defendant’s evidence, and it is the evidence which should establish a privilege claim rather than matters revealed by inspection, which by definition cannot be known by the party opposing the claim. For the purposes of being comprehensive, however, I will analyse the claim on the basis of what inspection shows.

The document produced to Category 4 and identified as (5) relates to dealings between Mr Broad and this defendant. The ‘draft statement by Spencer Broad dated 28 January 2015’ that is part of the Bodycoat Document relates to Mr Broad’s involvement with what he generically describes as ‘Timbercorp’ and its representatives, including Mr Chris Bolger. It does not set out any representations made by Mr Broad to any individual defendant, including the defendant in this proceeding. It is apparently distinguished in the description of attachments to the email by being described as ‘Spencers Statement TC’ as opposed to ‘Spencers Statement-J Tomes’, which is also said in the email to be attached. In what follows I adopt these descriptions.

The description given by the defendant of the Bodycoat Document does not identify the full distribution list of the email, although obliquely the description does indicate that the email had other attachments. On inspection, the covering email is dated 28 January 2015 and is from Mr Peter Bodycoat to Mr Fasullo and Mr Herskope, with copies to Mr Ryckmans, Mr Broad, and Mr Bolger. It refers to four attachments, including ‘Spencers Statement – J Tomes’ and ‘Spencers Statement TC’. The only attachment produced is the statement which I infer is ‘Spencers Statement TC’.

Inspection also shows that the email from Mr Bodycoat is the latest in an email chain of three emails. The first is his of 27 January 2015 to Mr Herskope, copying in Mr Ryckmans, Mr Fasullo, Mr Broad and Mr Bolger, referring to ‘our statements’ and ‘John Tomes final statement’. The next is an email from Mr Fasullo of 28 January 2015 to Mr Bodycoat and Mr Herskope, copying in Mr Ryckmans, Mr Broad and Mr Bolger. The last is Mr Bodycoat’s email of 28 January 2015.

I do not consider that the defendant has established his own litigation privilege in ‘Spencers Statement TC’ or any of the emails in the email chain, for want of both necessary elements – confidentiality, and necessary purpose.

First, the emails and their attached statements are not shown by Mr Ryckmans’ evidence, or on inspection, to have been created in circumstances creating an obligation of confidentiality owed by all the recipients to Mr Tomes. I apply the same analysis as earlier in this regard. It is fortified here by the oral submissions by counsel for the defendant. Counsel for the defendant submits that the statement forming part of the Bodycoat Document was created for use in Mr Tomes’ proceeding, but also for potential use in other litigation concerning other defendants, which was only anticipated at that time.[76] In this regard he seeks to draw a distinction between the emails first produced and Mr Broad’s statement relating to his dealings with the defendant (which the defendant claims was for his case alone), and this statement forming part of the Bodycoat Document i.e. Mr Broad’s statement relating to his dealings with Timbercorp. Even assuming that the litigation concerning other defendants was not on foot at that time (which is not shown), I do not consider that to mean that the statement was obtained in circumstances imposing an obligation of confidentiality. Even contemplated use in later proceedings is sufficient in my view to denote that it was not. In Jackson, in a passage relied upon by the plaintiff, Giles JA noted that provision of witness statements to a party on the basis that that party could use them ‘as it saw fit’ is ‘the antithesis of an obligation not the disclose their contents’. In the context, this observation related to whether the witnesses were under an obligation of confidentiality, but it also applies to the question of an obligation of confidentiality owed to Mr Tomes by his lawyers.[77]
[76]Transcript of proceedings (Supreme Court of Victoria, S CI 2014 04921, Lansdowne AsJ, 12 June 2019), 203-206.
[77]Jackson (n 8) [51].

Second, for Mr Tomes to have litigation privilege in the emails and attached statements they would have to have been created for the dominant purpose of professional legal services in relation to his case. Although the emails refer to his statement, which presumably was in relation to his own case, what they show is a collective approach, apparently co-ordinated by Mr Bodycoat, to obtaining statements from a number of persons. The defendant has not shown that the statements from all those persons were for the dominant purposes of his case. In this regard, it is of particular relevance that Somerset Ryckmans also acted for Mr Bodycoat, and prepared his Defence and Counterclaim dated 27 February 2015. Were the statements collated by Mr Bodycoat, and sent by him, primarily in relation to his case? The fact that he sent the email might suggest as much. If so, only he can claim privilege in them and the related emails.

In fact, the defendant only argues for his own litigation privilege in the Bodycoat Document in the alternative. What he primarily asserts is common interest privilege, but as discussed earlier this is an exception to waiver by the primary holder of the privilege. It only arises where the client, who has disclosed a document, had privilege in that document. It is not a separate head of privilege independent of the primary holder’s privilege.

Waiver

For completeness, I also briefly consider the plaintiff’s alternative submission that the defendant waived his privilege in the contested documents, in case my reasoning as to confidentiality is incorrect.

The starting point is that it must be the client, or his agents, who holds the privilege who acts inconsistently with it, for it to be lost. In Edwards, the fact that it was the prospective customers of the holder of the privilege who disclosed its legal advice, and did so without the holder’s authority, meant that the disclosure did not result in the privilege being lost.

In this case, the plaintiff asserts that the defendant’s agents, being his lawyers, disclosed the statement or statements of Mr Broad and so acted inconsistently with the maintenance of any privilege he held in the statement or statements, and the emails relating to them. The claimed disclosure is by way of use in other proceedings. In this submission provision of the actual statements themselves to other clients, which Mr Ryckmans said did not occur, is not necessary. The plaintiff submits that Mr Ryckmans’ evidence supports its submission from examination of the documents that the statement, or statements, obtained from Mr Broad were used in the preparation by Somerset Ryckmans of the defences of Messrs Luxton, Gaffney, Olsen, Otway and Slee. If Mr Broad’s statement or statements were obtained in circumstances of confidentiality and for the purposes of Mr Tomes’ defence, and so privileged on creation, the subsequent use in this way is, in the plaintiff’s submission, inconsistent with the maintenance of Mr Tomes’ privilege in that statement or statements.

I begin with examination of those defences as compared to the defendant’s defence dated 10 February 2015 (subsequently amended, but not in substance in this respect). It shows that in each case the defendant alleges that Mr Broad made representations to them similar in content, although the dates on which and places where they were made differ. Second, in each case the defendant alleges that Mr Broad made those representations as the agent of the plaintiff, because he was instructed to do so by either Mr Bolger alone (Luxton) or by both Messrs Peterson and Bolger (Slee, Otway, Gaffney, Olsen and Tomes).

Counsel for the defendant submits that the same cannot be said in respect of the defence of Mr Bodycoat, exhibited as Exhibit A.[78] I disagree. Certainly Mr Bodycoat’s defence differs from the others in that in his case he alleges that the relevant representations were made directly to him by each of Mr Bolger, Mr Peterson as well as Mr Broad, whereas the other defendants allege that the representations were made to them only by Mr Broad, on instructions from Mr Bolger and Mr Peterson. But the content of the representations is the same, and in each case Mr Broad is alleged to have made the representations on instructions from Mr Bolger and, in most cases, Mr Peterson. The only difference lies in whether Mr Bolger and Mr Peterson also made the representations directly.
[78]Defendant’s Further Outline dated 14 June 2019, [37]-[40].

Thus in respect of a statement from Mr Broad detailing his relationship with Timbercorp and what he was instructed to represent to intending investors, the examination of the defences suggests that the same statement may have been used in each case.

It is of course feasible that a firm acting for multiple defendants in multiple pieces of litigation of similar type instituted by the same plaintiff could obtain from a witness common to each case a discrete statement or oral instructions in each case. That is not, however, Mr Ryckmans’ evidence. His evidence is that he can recall only one statement or set of statements obtained from Mr Broad between 2015 and 2018, being the statement or statements the subject of the privilege claim. He says that ‘ in a sense’ the various defences were prepared on the basis of this statement or statements, although they were also prepared on the basis of oral instructions to the same effect from Mr Broad given at some time in 2015 or 2016, and later in March 2017. I infer from this evidence that Somerset Ryckmans, as agent for the defendant, utilised Mr Broad’s statement created in January 2015 relating to his relationship with Timbercorp in the preparation of defences other than that of Mr Tomes. Even if that statement was initially obtained in circumstances of confidentiality and for the dominant purpose of Mr Tomes’ litigation, which as discussed I do not consider shown, its use by his agents in other defences amounts to acting inconsistently with that privilege.

The plaintiff also relies on Mr Ryckmans’ evidence that the statement or statements (Mr Ryckmans as noted could not say if there were two, or only one) could be called for by the other defendants in their own litigation. Mr Ryckmans agreed that this was the case, subject to common interest privilege. In other words, he concedes that this would be action inconsistent with the maintenance of any privilege Mr Tomes has in the statement or statements, unless the common interest privilege exception is made out.

The analysis above relates to what Mr Broad told Somerset Ryckmans about his relationship with Timbercorp and what he was instructed to tell intending investors. Inspection of the documents shows that there was another statement, of the same date, relating to Mr Broad’s relationship with Mr Tomes specifically. The various defences show that the representations, although identical in content, were made at different times and places to the various defendants. It is thus unlikely that a statement relating specifically to Mr Tomes was used for the other defences.

However, if this statement was privileged on creation, which as discussed I do not consider shown, then it appears from the content of the emails forming part of the Bodycoat Document and the identification of the attachments that it had been disclosed to other persons, specifically Mr Bodycoat and Mr Bolger, as well as the separate statement by Mr Broad relating to his relationship with Timbercorp. The second email in the chain forming part of the Bodycoat Document, the email from Mr Fasullo of 28 January 2015, shows that this was with the apparent knowledge and permission of the defendant’s solicitors, and so a waiver of any privilege he held in that document. The defendant does not contend that that disclosure is saved by common interest privilege.

Common interest privilege

Common interest privilege may amount to an exception to the waiver of privilege that would otherwise apply by virtue of disclosure of a privileged document. As I do not consider that the defendant has established his claim for privilege in respect of any of the documents, it is not necessary to consider common interest privilege. As it has been the subject of detailed submissions by the defendant, and for completeness, I make the following observations.

First, although the defendant identifies s 122(5)(c) as the relevant statutory provision and agrees with the plaintiff’s summary of the relevant principles[79] it is not clearly apparent that he appreciates that the defendant must first show his own litigation privilege. In fairness to the defendant, I will proceed on the basis that on the intended reading of his submissions this is accepted, and assumed. Where the defendant’s case on common interest then fails is in addressing the weaknesses in Mr Ryckmans’ evidence. As set out earlier, the fundamental difficulty is that Mr Ryckmans could not say that there were two distinct statements, only one of which is the subject of the common interest claim.
[79]Defendant’s Further Outline dated 14 June 2019, [18].

On inspection, there are two distinct statements, and the one that is produced as part of the Bodycoat Document does deal with Mr Broad’s dealings with Timbercorp, as opposed to his dealings with Mr Tomes, or any other defendant. What the defendant would need to establish for the common interest exception in relation to this document, had Mr Ryckmans been able to identify its subject matter, is the following.

First, that Mr Tomes held the privilege in it. In other words, that it was created for the dominant purpose of his litigation, and in circumstances of confidentiality. Confidentiality is not shown, and nor is the necessary dominant purpose given that the defendant’s case is that the statement was to be used in other cases, and at the time it was obtained Somerset Ryckmans already acted for other defendants.

Next, the defendant would need to show that, to the extent the statement was shared with persons other than the defendant and his lawyers, those other persons or person had a common interest with Mr Tomes in its contents. It is somewhat strange that the defendant only seeks to assert a common interest between Mr Tomes and Slee, Otway, Gaffney, Luxton and Olsen. In other words, the defendant does not expressly assert a common interest with Mr Bodycoat, when it is plain that the email is from Mr Bodycoat and so the statement had been disclosed to him. In the Second Ryckmans Affidavit at paragraph 13 Mr Ryckmans states ‘On 3 December 2014 Peter Bodycoat on behalf of the Defendant instructed Somerset Ryckmans to act for the Defendant in this proceeding’. Perhaps this was intended as the evidentiary foundation for a submission that disclosure to Bodycoat was not a disclosure to another person, because he was the agent of Mr Tomes. No such submission was in fact advanced, however, and so I proceed on the basis that Mr Bodycoat should be regarded as distinct from Mr Tomes.

Leaving these matters aside, if the only additional persons to whom the statement was disclosed by being copied into the email were shown to be other defendants who wished to mount a similar representation defence or counterclaim, then in my view it is arguable that they had a sufficient common interest. I do not consider it plain, as the plaintiff asserts, that the running of the same defence in separate litigation but against a common plaintiff cannot amount to the sort of common interest required for the exception. As set out earlier, the particular cases to which my attention has been drawn in relation to common interest are not easily reconcilable, and the issue is highly fact dependent. I do not exclude the possibility that wishing to run the same defence in separate but similar litigation against a common plaintiff could amount to a sufficient common interest.

However, it is plain from the emails that form part of the Bodycoat Document that this statement of Mr Broad was not only shared with persons who are shown on the evidence to have run a similar defence. It was also shared with Mr Bolger. There is a reference in the defendant’s Bill of Costs to perusing ‘originating process served on Bolger’[80] but no evidence as to what this claim was or, if a claim by the plaintiff, what defence Mr Bolger proposed to advance. For this reason, even if all other aspects of the common interest privilege claim had been established, it would fail to save the defendant’s privilege in the statement.
[80]Shoshana May, affirmed 14 May 2019, Exhibit SM-13, item 105.

Conclusion and orders

I will grant the plaintiff access to all the documents over which the defendant claims privilege, that claim not being established. I will hear the parties as to the precise form of orders and costs.

[2019] VSC 445

3 July 2019