Appellant/Cross-Respondent v Respondent/Cross-Appellant

2 The substantive dispute in this proceeding relates to who is liable to pay the costs of remediating asbestos and other contamination on a large parcel of land comprising the former Amcor Paper Mill site at 626 Heidelberg Road, Alphington (Site). Pursuant to a Contract of Sale dated 28 June 2013 (Contract of Sale), the Site was purchased by Glenvill from Amcor Packaging (Australia) Pty Ltd (Amcor Packaging), then a wholly owned subsidiary of Amcor. By a novation deed dated 15 October 2013 the Contract of Sale was novated so as to substitute Amcor in place of Amcor Packaging and the Contract of Sale was further varied by deeds of variation dated 18 February 2015 and 18 October 2016.

3 The Contract of Sale included terms addressing the manner in which 'Contamination' at the Site that had not been identified (Unidentified Contamination) would be dealt with and paid for as between the parties. The meaning, effect and operation of these terms is central to the substantive dispute between the parties.

4 Golder became relevantly involved with the Site in 2015 when it was retained by Amcor to provide services relating to the Site after Amcor was notified by Glenvill of the discovery of what was said to be Unidentified Contamination.

5 For the reasons that follow the appeal is allowed and the cross-appeal is dismissed.

The Amcor Objection and its determination by the Associate Justice

6 The Amcor Objection was referred to the Associate Justice by order of Justice Hargrave made 1 December 2017. At that time there was a level of urgency in the matter because of the orders and timetable then in place regarding the appointment of an expert pursuant to s 65M of the Civil Procedure Act 2010 (Vic), and the then fixed trial date. The timetable has since been extended and the trial date vacated.

7 Affidavit evidence and written submissions were filed by the parties and the matter came on for hearing before the Associate Justice on 19 March 2018. The written submissions filed by Amcor and Glenvill revealed no difference of view regarding the principles to be applied in relation to establishing legal professional privilege. Each party submitted that the issues were to be determined pursuant to ss 118 and 119 of the Evidence Act 2008 (Vic) (Act) and not the common law. Both parties recognised the difference in the common law position. For example, Glenvill made reference to legal advice privilege under s 118 of the Act not extending to communications between the client and another person, or between a lawyer acting for the client and another person, even if made for the dominant purpose of the lawyer providing legal advice to the client.[3] Amcor's submissions revealed emphasis in a different way by focusing a material part of its submissions on the contention that Golder was Amcor's 'agent' within the meaning of s 117 of the Act, and therefore within the definition of 'client' as used in ss 118 and 119 of the Act. At that time, neither Glenvill nor Amcor sought to rely upon the common law position addressed in Pratt Holdings Pty Ltd v Commissioner of Taxation.[4]

8 The lengthy lists of the Privilege Claim Documents relied upon by Amcor do not identify in respect of each document whether privilege is claimed under ss 118 and/or 119 of the Act or which part or parts of these sections is relied on, and the document descriptions do not enable this to be discerned.

9 At the hearing before the Associate Justice on 19 March 2018 no substantive oral submissions were made with respect to the voluminous privilege claims, and the focus became the prospect of inspection of sample documents. The Associate Justice agreed to undertake a substantial inspection and privilege assessment task in respect of 250 sample documents (Sample Documents), which in many instances had additional attachments. The agreed process contemplated assessment of the privilege claims by the Associate Justice in relation to each of the Sample Documents and the parties then using the reasons and determinations of the Associate Justice to aid consideration of the remaining Privilege Claim Documents.

10 The Sample Documents were not selected by reference to any categories or grouped in any way. Twenty-five per cent were chosen by Amcor, 25 per cent were chosen by Glenvill, and 50 per cent were chosen at random. The regime was reflected in orders made on 19 March 2018.

11 Subsequent to the 19 March 2018 hearing, the Associate Justice inspected each of the Sample Documents and, shortly thereafter, delivered a ruling in relation to the Sample Documents which was reflected in brief reasons (Reasons) and orders made on 28 March 2018 (Orders).

12 An itemised 'Schedule A' was attached to the Orders indicating whether a particular document was privileged, not privileged, or partially privileged. This was done in tabular form by indicating in a single column 'Yes', 'No', or 'Part'.[5] For documents marked 'Part', a 'Schedule B' was attached to the Orders indicating which parts of the partially privileged Sample Documents could be redacted.

13 In respect of the Sample Documents where privilege claims were upheld or partially upheld, the schedules to the Orders did not identify whether the privilege claims had been upheld pursuant to ss 118 or 119 of the Act or both, or which subsections of ss 118 or 119 of the Act were relevantly engaged. The Associate Justice noted that Amcor had not identified for any of the Sample Documents whether it relied upon ss 118 or 119 of the Act or both. Consequently, the Associate Justice recorded that she had not attempted to do so either.[6]

14 The Reasons also referred to the purpose of the review being to determine whether the documents in the sample were confidential communications and, if so, came into existence for the relevant dominant purpose under ss 118 or 119 of the Act.

(a) made rulings in respect of each of the Sample Documents;

(b) made provision for Amcor to apply to the court to adduce further evidence or make further submissions in respect of the documents ruled not to be privileged or only partly privileged;

(c) directed that Amcor file and serve an updated list of the 2,741 documents over which privilege was claimed with such list to be created having regard to the rulings and Reasons (Updated List);

(d) directed that, in respect of each document to be included in the Updated List, Amcor identify whether the privilege claim is made under ss 118 or 119 of the Act or both.

16 On 6 April 2018, Amcor gave notice that it wished to apply to adduce further evidence and make further submissions on the question of whether certain of the documents ruled not to be privileged or only partly privileged be produced to Glenvill, and that it required clarification of some of the instructions in Schedule B to the Orders.

17 On 11 April 2018, Glenvill filed a notice of appeal and on 20 April 2018 Amcor filed a notice of cross-appeal. Further procedural orders were made which had the effect of staying the Orders pending the hearing and determination of the appeal and cross-appeal.

18 On 16 May 2018, during the hearing of the appeal and cross-appeal, Glenvill sought and was granted leave to amend its notice of appeal. That application was not opposed by Amcor.

19 The appeal and cross-appeal are brought by notice under r 77.06 of the Rule_s_. Such appeals are no longer by way of rehearing de novo. They are rehearings which, in the absence of further evidence or a change in the law, ordinarily require the appellant to show error (factual, legal or discretionary) on the part of the Associate Justice before appellate power may be exercised. In addition, if the orders from which an appeal is brought relate to a matter of practice and procedure, an appellate court will exercise caution in reviewing the decision.[7]

20 In substance and briefly, by its amended notice of appeal, Glenvill contends that:

1A. The court was led into error by applying ss 117, 118 and 119 of the Act instead of the common law when determining whether each of the Sample Documents was the subject of a valid claim of legal professional privilege.

1. The court erred by failing to provide adequate reasons:

(a) so as to distinguish between claims for privilege under ss 118 and 119 of the Act; and/or

(b) so as to identify the basis upon which ss 118 and 119 of the Act were said to apply to each of the Sample Documents.

1. The court erred by finding that Golder was Amcor's agent 'in globo' for the purpose of s 117 of the Act, as distinct from considering for each of the Sample Documents, whether the communication was made with Golder for the dominant purpose of s 118 advice privilege or s 119 litigation privilege.

21 Glenvill did not press its ground of appeal regarding disclosure and issue waiver, it being correctly accepted by the parties that this issue remained to be addressed at a later stage.

Ground 1A - Led into error by applying ss 117, 118 and 119 of the Act

22 Glenvill and Amcor each submitted before the Associate Justice that the privilege issues should be determined by the application of ss 117, 118 and 119 of the Act, which is what occurred. Glenvill now contends that the Associate Justice was led into error by applying those sections of the Act and that the privilege issue ought to have been determined by applying the common law. Amcor in its written submissions on the cross-appeal also contends that ss 118 and 119 of the Act do not apply and that common law principles should have been applied instead.[8]

23 During oral submissions both parties accepted that the Associate Justice had been led into error and that the Act does not relevantly apply. The point is briefly exposed below.

24 When first enacted, ss 118 and 119 of the Act did not apply to certain pre-trial processes. This was addressed by the introduction of s 131A of the Act, which provides as follows:

(a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1C or 3; and

(b) the person objects to giving that information or providing that document -

the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.

(2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following -

(a) a summons or subpoena to produce documents or give evidence;

(b) pre-trial discovery;

(c) non-party discovery;

(d) interrogatories;

(e) a notice to produce;

(f) a request to produce a document under Division 1 of Part 4.6;

(g) a search warrant.

25 As is apparent, where a person is required to produce documents in answer to a subpoena, s 131A of the Act is only engaged where:

(a) 'a person' is required to produce documents pursuant to the subpoena; and

(b) 'the person' objects to providing the document/s.

Consequently if, as here, 'a person' producing the documents (Golder) is not 'the person' objecting to the documents being provided (Amcor), then s 131A(1) is not engaged and ss 118 and 119 of the Act do not apply.

26 As unsatisfactory as that may appear,[9] the language of the statute is clear and the position is the subject of settled authority.[10]

27 It is therefore correct that the Associate Justice was led into error by applying ss 117, 118 and 119 of the Act to the Sample Documents.

28 Glenvill contends that this error is sufficient to dispose of the appeal, that the relevant Orders should be set aside, and that the matter should be remitted to the Associate Justice.[11] This is also in a context where the Orders specifically require the Updated List to be filed and to identify whether any privilege claims are made under ss 118 or 119 of the Act or both, and make provision for Amcor to apply to seek to file and serve further evidence and submissions in relation to the Sample Documents in Schedule A to the Orders. Understandably in this context, submissions were not made on the appeal regarding individual documents and it was not suggested that the 250 Sample Documents should be inspected on appeal.

29 Amcor contended that the error was of no consequence and that all of the Orders should stand. When attention was drawn to the fact that the Orders require the Updated List to be prepared by reference to the determinations made under ss 118 and 119 of the Act and that paragraph 6 of the Orders requires the Updated List to identify whether privilege claims are made under ss 118 or 119 of the Act or both, Amcor's position was re-calibrated. It was then conceded that relief should flow from this ground of appeal, although it was submitted that the relief should be limited and that it was only paragraph 6 of the Orders that cannot stand in its present form.

30 Accordingly, Amcor contends that the 'Yes', 'No', and 'Part' rulings should remain as determined and that paragraphs 1 to 5 of, and Schedules A and B to, the Orders should stand.

31 Amcor submits that there is no relevant difference of principle regarding the application of the dominant purpose tests under ss 118 and 119 of the Act and the common law and, so it is submitted, no different position would have been reached if the common law had been applied.

32 Amcor further submits that although the Associate Justice did not consider or apply the common law regarding the position of third parties (such as Golder) in connection with any of the 250 Sample Documents, it does not matter because Golder was found to be an agent within the meaning of s 117 of the Act and this is an 'extra stricture' that the common law does not have. Consequently, so it is submitted, the same result would have followed if the common law position as reflected in Pratt Holdings Pty Ltd v Commissioner of Taxation[12] had been applied.

33 The parties correctly accept that the Associate Justice did not apply the common law and that there are differences between the common law and s 118 of the Act in relation to confidential communications between lawyers or clients and third parties made for the dominant purpose of obtaining legal advice.[13] As noted above, this difference was expressly referred to and relied upon by Glenvill in its written submissions before the Associate Justice.[14] By its emphasis on the alleged existence of an agency relationship between Amcor and Golder (within the meaning of that expression as found in s 117 of the Act), Amcor, too, focused on that accepted difference between s 118 of the Act and the common law.

34 Relevantly, for protection to be afforded under s 118(a) of the Act, the confidential communication must be between the client and the lawyer, and 'client' is defined in s 117 of the Act to include 'an employee or agent' of the client. At common law, agency (whether within the meaning of that expression in s 117 of the Act or otherwise) is not required. As observed in Asahi, the absence of agency does not deny the existence of the privilege attaching to the communication, although its presence 'may' fortify it. In terms of a third party adviser, the important characterisation is 'not the nature of the third party's legal relationship with the party that engaged it but, rather, the nature of the function it performed for that party'.[15]

35 The privilege dispute in this case relates to the position of a third party adviser to Amcor, namely, Golder. It is this third party adviser that produced the thousands of documents in answer to the Subpoena, a substantial proportion of which comprise the Privilege Claim Documents. Consequently, in determining the question of privilege when considering each of the Sample Documents it was necessary to apply the common law which the Associate Justice was not invited to do.

36 Amcor's submission that the Orders (except for paragraph 6) should stand despite this error is not accepted. The applicable common law principles were not applied or considered by the Associate Justice in relation to any of the Sample Documents. Although it is correct that the common law does not impose an agency requirement, it does not necessarily follow that absent the agency requirement the same result would have followed for the relevant Sample Documents if the common law principles had been considered and applied when considering each of the documents. It is to be recalled in this context that Amcor did not identify the basis upon which the claim for privilege was made in relation to each of the Sample Documents, resulting in the Associate Justice expressly stating in the Reasons that she had not done so either.[16] Consequently, the schedules and the Reasons do not identify for any particular document whether privilege was upheld on the basis of ss 118 or 119 of the Act, or both, or which particular sub-section or sub-sections of ss 118 or 119 of the Act were found to be relevantly engaged.

37 That being so, when considered in the context of the identified differences between the operation of ss 117 and 118 of the Act and the common law, and the fact that the Associate Justice was not asked to and did not consider or apply the common law, the 'Yes', 'No', or 'Part' rulings and Reasons do not expose a basis that permits me to be satisfied that the same result would have necessarily followed for each of the relevant Sample Documents if the common law principles had been applied. In addition, the position may be impacted by Amcor's foreshadowed application to adduce further evidence and make further submissions in relation to the Sample Documents.

38 In conclusion, Glenvill is correct in its contention that the Associate Justice was led into error by applying ss 117, 118 and 119 of the Act to the Sample Documents and not applying the common law.

Grounds 1 (a) and (b) - Failing to provide adequate reasons

39 Glenvill submits that the Associate Justice failed to provide adequate reasons so as to:

(a) distinguish between claims for privilege under ss 118 and 119 of the Act; and/or

(b) identify the basis upon which ss 118 and 119 of the Act were said to apply to each of the Sample Documents.

40 In substance, Glenvill contends that the Reasons are inadequate because the Reasons and the schedules to the Orders do not reveal the basis upon which the privilege claims were upheld and therefore do not provide an adequate insight into the path of reasoning that led the Associate Justice to the ultimate 'Yes', 'No' or 'Part' findings regarding the Sample Documents.[17] Relying on the Court of Appeal's decision in Hunter v Transport Accident Commission,[18] Glenvill emphasises the observations of Nettle JA (as he then was) that '... reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed', and also his Honour's observation that a failure to expose the path of reasoning is an error of law.[19]

41 It is submitted that in this case Glenvill is left to wonder as to the basis upon which a given claim to privilege has been upheld or defeated. In so doing Glenvill draws attention to Amcor's failure to identify the basis for each claim, and to the Associate Justice's observation that her Honour had not done so either.[20]

42 Although this ground of appeal raises an issue of substance that may have had some force if ss 118 and 119 of the Act applied, in the perhaps unusual circumstances of the present case the adequacy or otherwise of the Reasons need not be explored at any length because the fate of these grounds of appeal is materially affected by the error identified in appeal Ground 1A. Sections 118 and 119 of the Act were not relevantly engaged and therefore it was not an error not to have distinguished between claims for privilege under ss 118 and 119 of the Act. For the same reason it was not an error not to have identified the basis upon which ss 118 and 119 of the Act were said to apply to each of the Sample Documents. Consequently, appeal Grounds 1(a) and (b) must fail.

43 That said, having regard to the circumstances in which the issue has arisen, the privilege issues that remain, and the submissions made, it is appropriate to make some further observations.

44 The adequacy of a judge's reasons will depend upon the circumstances of the case and reasons may be inadequate if an appeal court is unable to ascertain the reasoning upon which the decision is based.[21] This is consistent with the observations of Nettle JA in Hunter v Transport Accident Commission,[22] relied upon by Glenvill. As observed by Redlich and Kaye JJA in Pham v Legal Services Commissioner,[23] the adequacy of the reasons must depend upon the issues and the nature of the proceeding in any particular case and, in an appropriate case, the reasons may be found to be adequate by a combination of what is expressly stated in conjunction with inferences that necessarily arise from what is expressly stated.[24]

45 The degree of detail in a judge's reasoning should be commensurate with the degree of finality attending the decision, such that reasons for decisions finally determining the rights of the parties ought ordinarily to be expressed in more detail than those relating to interlocutory or evidentiary rulings.[25] The 'firm warnings of courts of high authority against over-lengthy judgments' should also be kept in mind.[26]

46 In the context of claims of legal professional privilege over particular documents or categories of documents, some further observations can be made.

47 First, legal professional privilege is not merely a rule of substantive law but is a substantive legal right or immunity.[27]

48 Second, it is well accepted that the party claiming the privilege bears the onus of establishing each of the claims, including establishing each of the necessary factual matters required to make out a privilege claim over a particular document or category of documents.[28]

49 Third, in respect of any privilege claim over a particular document or category of documents that is to be determined by the court, it is self-evidently necessary for the party claiming the privilege to identify sufficiently the particular basis or bases upon which it is contended that privilege attaches.[29] In turn that will expose the facts that need to be established and provide the framework of assessment for consideration by a court determining such a claim in any given case.

50 Fourth, keeping in mind the established importance of legal professional privilege as a substantive right, it is necessary for a court to give adequate reasons when determining a privilege claim with respect to a particular document or category of documents. The nature and extent of the reasons required will depend upon the circumstances and will be informed by general principles regarding the giving of reasons such as those referred to above.

51 Fifth, while a judge may need to be circumspect when giving reasons so as not to reveal privileged content, adequate reasons must still be provided. Those reasons will at least reveal the basis upon which a privilege claim is upheld in a particular case.[30]

52 Sixth, the fact that documents have been inspected does not lessen the obligation to provide adequate reasons.

53 Seventh, it does not follow from the above that reasons in relation to any particular claim of privilege need to be lengthy. There are many cases illustrating instances where short but adequate reasons succinctly and sufficiently expose the basis upon which a privilege claim has been upheld and thereby reveal the path of reasoning without compromising privileged content. In this context, the important role that Associate Justices play in the efficient operation of the court and in the administration of justice must be kept in mind, as must what was said by Ferguson J[31] on the topic in Oswal v Carson.[32]

54 Because Glenvill's inadequacy of reasons appeal grounds have not been upheld, it is not necessary to address further the submissions made by Amcor during the hearing of the appeal regarding the adequacy of reasons, or its supplementary written submissions on the point filed on 21 May 2018. However, it ought to be observed that if by these submissions Amcor intended to submit that reasons need not be given for judicial determinations of legal professional privilege claims made over particular documents or categories of documents, that submission finds no support in the authorities relied on and is not accepted. The illustrations in the cases referred to in paragraph 9 of Amcor's supplementary written submissions do not alter the position. A review of these decisions reveals that in each case the party claiming legal professional privilege had identified the ground or grounds relied upon for claiming privilege and that reasons were given which sufficiently exposed the basis for upholding the various claims.

Ground 2 - Error by finding agency 'in globo' for the purpose of s 117 of the Act

55 Glenvill submitted as appeal Ground 2 that the court erred by finding agency 'in globo' for the purpose of s 117 of the Act as distinct from considering, for each of the Sample Documents, whether the communication was made with Golder for the relevant dominant purpose under ss 118 or 119 of the Act.

56 Again, in light of the error identified in appeal Ground 1A, this ground of appeal can be dealt with succinctly.

57 Even if it were to be assumed for the purpose of argument that the agency issue regarding s 117 of the Act was not properly considered in relation to each of the Sample Documents, that was not an error because s 117 of the Act was not relevantly engaged. Consequently this appeal ground must fail.

58 It should be added that a fair reading of the Reasons reveals that the assumption in the preceding paragraph may not be sound because the different roles played by Golder were referred to by the Associate Justice in the context of the Sample Documents.[33]

59 It having been identified that the Associate Justice was led into error by applying ss 117, 118 and 119 of the Act and not the common law, error has been demonstrated and the appeal is allowed.

60 By its notice of cross-appeal Amcor contends that the Associate Justice erred by:

(a) fixing a date of 23 December 2016 as the date by which proceedings between Glenvill and Amcor regarding Unidentified Contamination at the Site were anticipated; and

(b) failing to fix the date by which proceedings between Glenvill and Amcor regarding Unidentified Contamination at the Site were anticipated as: (i) 19 March 2015; (ii) 10 April 2015; or (iii) August 2015

for the purposes of s 119 of the Act or common law litigation privilege.

61 Like Glenvill's appeal, Amcor's cross-appeal is affected by the error identified in appeal Ground 1A above.

62 In relation to s 119 of the Act, because s 119 does not apply and is not relevantly engaged it was not an error to fail to fix one of the dates now suggested by Amcor as the date by which litigation was 'anticipated' for the purposes of s 119 of the Act.

63 In relation to the contention that 23 December 2016 was incorrectly fixed as the date litigation was 'anticipated' between the parties, a number of observations can be made.

64 As confirmed by Amcor during the hearing, the cross-appeal is predicated upon the proposition that in paragraph 8 of the Reasons the Associate Justice made a finding of fact that the date by which litigation was 'anticipated' between Glenvill and Amcor was 23 December 2016. However, as submitted by Glenvill, a review of the Reasons reveals that the Associate Justice did not fix 23 December 2016, or any other date, as the date by which proceedings between Glenvill and Amcor were 'anticipated'. As was indicated and emphasised in paragraph 8 of the Reasons, that issue was not 'necessary to decide' and it was not necessary '...to make a formal finding in this regard at [that] stage'.

65 That is not to overlook that the Associate Justice did refer to the issue of litigation or that some general observations were made in paragraph 8 of the Reasons, which is in the following terms:

Amcor does not specify in its list of the sample documents or supporting evidence whether a claim for privilege in respect of a particular document has been made on the basis of s 118 of the Act (advice privilege) or s 119 of the Act (litigation privilege). I have not done so in my ruling either, although it is apparent from some of the sample documents themselves that litigation privilege would attach to the communications in them. Here, the chronology of events is relevant. While the evidence relied upon by Amcor seems to contend that as of mid-2015 it could have been reasonably anticipated that Amcor and Glenvill would end up in litigation, from my review of the documents themselves that this proposition is not entirely borne out, although I accept that it is arguable. It is apparent from the tenor of the correspondence between Amcor and Glenvill that there were a number of issues concerning the interpretation of the contract between Amcor and Glenvill and the remediation of the Fairfield site where Glenvill and Amcor were not in agreement. However, it is also tolerably clear that Amcor and Glenvill worked towards trying to resolve these outstanding issues by commercial negotiations rather than formal dispute resolution processes. If I needed to fix a date by which it could be reasonably certain that litigation would result, it would be 23 December 2016, when Mr Len Warson of Glenvill sent an email to Ms McPherson of Amcor which triggered the formal dispute resolution process under the contract. Accordingly, while strictly speaking it has not been necessary for me to decide this, documents which came into existence after that date, even if they came into existence for the purpose of Amcor obtaining legal advice, could also be said to have come into existence for the purposes of anticipated litigation. Of course, once the proceeding was issued on 6 June 2017, there was no doubt as to the position, although the position is complicated by the fact that the remediation works and the claims process were ongoing during this period. Again, I do not need to make a formal finding in this regard at this stage.

66 Glenvill is correct that the Associate Justice was not there seeking to apply the 'anticipated' litigation criterion under s 119 of the Act or seeking to determine that point. Self-evidently aware of the 'anticipated' litigation requirement, and at least inferentially conscious that there were in the order of 2,500 documents yet to be addressed, that it was proposed to provide Amcor with an opportunity to apply to file further evidence and submissions, and that pragmatic guidance was being sought to be provided to the parties, the Associate Justice in the Reasons:

(a) makes clear that it was not considered necessary to decide the 'anticipated' litigation point at that stage and provides up to five indications that the 'anticipated' litigation point was not being decided;[34]

(b) adopts a deliberate change of language from 'anticipated' to 'reasonably certain that litigation would result', and then to 'no doubt as to the position', further exposing that the 'anticipated' litigation test was not being applied and the point was not being decided; and

(c) seeks to provide assistance to the parties in connection with the balance of the Privilege Claim Documents by fastening upon a date when the Associate Justice considered the evidence and Sample Documents to show that litigation was 'reasonably certain' and a date when there was 'no doubt as to the position'.

67 That being so, the question of whether and when litigation was first 'anticipated' between Glenvill and Amcor was not decided, and that issue remains to be later addressed should it become necessary in the context of that which is to follow. Amcor is not shut out from agitating the 'anticipated' litigation point in relation to dates prior to 23 December 2016 and Glenvill properly acknowledged as much more than once during the hearing of the appeal and cross-appeal.

68 This conclusion sits comfortably with various aspects of Amcor's submissions that capably evolved on the point during the course of the hearing. For example, Amcor submitted that it was undoubtedly the case that the Associate Justice left open some 'degree of vagueness as to the litigation date';[35] that from 23 December 2016 onwards the Associate Justice was saying it was certainly safe to rely upon litigation privilege over the non-sample documents but nonetheless the Associate Justice was leaving open whether Amcor could rely upon litigation privilege from a somewhat earlier period;[36] that it was clear in the Reasons that no finding was made as to whether or not litigation privilege could attach to documents created before 23 December 2016 and that it is clear that the Associate Justice was cognisant that she had not made such a decision; and that what was being provided was a safe date when litigation was reasonably certain rather than seeking to decide the point when litigation first might have been 'anticipated'.[37]

69 It ought to be added that this position was submitted not to detract from Amcor's submission that it could still be inferred that documents dated prior to 23 December 2016 that had been determined to be privileged (i.e. the 'Yes' or 'Part' rulings) had been so determined on the basis of s 118 advice privilege only. Having regard to the circumstances, including the terms of the Reasons and Orders, and the Associate Justice's statement that she had not sought to identify for any of the Sample Documents whether ss 118 or 119 of the Act applied, being satisfied that such an inference can legitimately be drawn is not without difficulty. However, as the focus of this contention related to Glenvill's failed appeal Grounds 1(a) and 1(b) regarding inadequate reasons, it is not necessary to reach a concluded view on this contention.

70 Further and in any event, acting on the submissions made by the parties, the Associate Justice did not apply the common law and therefore did not make any finding as to when litigation was 'anticipated' for the purpose of the common law.

71 The Associate Justice did not fix 23 December 2016 as the date by which litigation was 'anticipated' between Amcor and Glenvill, whether pursuant to s 119 of the Act or the common law, and no error is demonstrated. It was not necessary at that point for the Associate Justice to decide when litigation was in fact first 'anticipated' between Amcor and Glenvill, and it was not an error to leave that issue open.

72 Subject to hearing further from the parties regarding the precise form of orders and the further conduct of this aspect of the proceeding, it is proposed to set aside paragraphs 1, 2, 5 and 6 of the Orders.

[1] The defendant in the substantive proceeding.

[2] The plaintiff in the substantive proceeding.

[3] Glenvill's written submissions filed 16 March 2018 at [11] and footnote 33 where reference was made to Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796 (Beach J).

[4] [2004] FCAFC 122; (2004) 136 FCR 357, 367-368 [41] (Finn J).

[5] For present purposes, the 'without prejudice' privilege claims are not relevant.

[7] Oswal v Carson [2013] VSC 355 [11] (Ferguson J), citing with approval Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 203-204 [14] (Gleeson CJ, Gaudron and Hayne JJ) and Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ). See also Hou v Westpac Banking Corporation [2015] VSCA 57, [44] (Beach and Whelan JJA); Cargill Aust Ltd & Ors v Viterra Malt Pty Ltd & Ors (No 7) [2018] VSC 99, [4] (Macaulay J).

[8] Amcor's written submissions filed 10 May 2018 at [19].

[9] A point also made in Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 12th ed, 2016) 1145-1146.

[10] See for example New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 [32] (Allsop P); Singtel Optus Pty Ltd v Weston [2011] NSWSC 1083; (2011) 81 NSWLR 526, 532 [28] (White J); Cargill Australia Ltd & Ors v Viterra Malt Pty Ltd & Ors (No 8) [2018] VSC 193 [42] (Macaulay J).

[11] See for example Transcript 27:14-20.

[12] [2004] FCAFC 122; (2004) 136 FCR 357 (Finn J). See also Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796, [37]-[44] (Beach J).

[13] See Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 (Finn J); Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796 (Beach J); and Tabcorp Holdings Ltd v State of Victoria [2013] VSC 302 [99]-[118] (Sifris J).

[14] Glenvill's written submissions filed 16 March 2018 at [11].

[15] Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796 [38] (Beach J) citing Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 [41] (Finn J).

[16] Reasons at [8], but noting '...although it is apparent from some of the sample documents themselves that litigation privilege would attach to the communications in them'. Discussed further below in connection with Grounds 1(a) and (b).

[17] See for example Transcript 20, 24, 27, 135-138.

[18] (2005) 43 MVR 130; [2005] VSCA 1 (Batt, Vincent and Nettle JJA).

[19] Ibid at 136-137 [21] (Nettle JA, Batt and Vincent JJA agreeing).

[21] Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8, 18 (Fullagar, Gray and Tadgell JJ).

[22] [2005] VSCA 1; (2005) 43 MVR 130, 136-137; [2005] VSCA 1 [21] (Nettle JA, Batt and Vincent JJA agreeing). The general principles stated by Nettle JA in Hunter have subsequently been cited with approval in a number of appellate court decisions. See for example Poholke v Goldacres Trading Pty Ltd v Victorian Workcover Authority [2016] VSCA 232 [76] (Hansen, Kaye and McLeish JJA); Rodda v Transport Accident Commission [2008] VSCA 276 [9] (Hargrave AJA); Wodonga City Council v Brunswick [2012] VSCA 320 [14] (Nettle and Redlich JJA); Bedeux v Transport Accident Commission [2016] VSCA 127 [64] (Ferguson, Kaye and McLeish JJA); Baker v David [2015] NSWCA 235 [33] (Sackville AJA, McColl and Meagher JJA agreeing); Police Federation of Australia v Nixon [2011] FCAFC 161; (2011) 198 FCR 267, 284 [67] (Lander, Gilmour and Gordon JJ); Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd [2009] FCAFC 31 [45] (Tamberlin, Sundberg and Besanko JJ).

[23] [2016] VSCA 256 [89] (Redlich and Kaye JJA).

[24] Subsequently citing with approval Murray Goulburn Co-op Co Limited v Filliponi [2012] VSCA 230 (Neave JA and Beach AJA).

1. [25] See for example Shaw v Yarranova Pty Ltd (2017) 252 FCR 267, 294 [123] (North, Perry, Charlesworth JJ); Hunter v Transport Accident Commission [2005] VSCA 1; (2005) 43 MVR 130, 137 [22] (Nettle JA, Batt and Vincent JJA agreeing).

[26] Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd [2006] FCAFC 117; (2006) 234 ALR 241, 249 [45] (Heerey and Weinberg JJ, Allsop J agreeing).

[27] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, 553 [11] (per Gleeson CJ, Gaudron, Gummow and Hayne JJ). See also the discussion in Ronald Desiatnik, Legal Professional Privilege in Australia (LexisNexis, 3rd ed, 2016) 2-4.

[28] Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796 [29] (Beach J).

[29] This is also consistent with r 29.04(d) of the Rules.

[30] See for example Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796 [53]-[79] (Beach J); Cargill Australia Ltd & Ors v Viterra Malt Pty Ltd & Ors (No 8) [2018] VSC 193 [45]-[172] (Macaulay J); IOOF Holdings Ltd v Maurice Blackburn Pty Ltd [2016] VSC 311 [56]-[122] (Elliott J).

[32] [2013] VSC 355 [48]-[49] (Ferguson J). Cited with approval in Melbourne City Investments Pty Ltd v UGL Limited [2017] VSCA 128 [56], [64]-[66] (Warren CJ, Tate and Whelan JJA).

[34] Reasons at [8]: 'If I needed to fix a date...'; '...while strictly speaking it has not been necessary for me to decide this...'; 'Of course, once the proceeding was issued on 6 June 2017, there was no doubt as to the position...'; 'Again, I do not need to make a formal finding in this regard at this stage;' and acknowledging Amcor's suggested mid 2015 date was 'arguable'.