In relation to para (c) McLelland CJ in Eq said:
"In my opinion par (c), on its true construction, does not apply to a document, the essential character of which is that of a communication made by the lawyer to another person (or at least another person not within the extended definition of "lawyer" in s 117), or made by the client to another person (or at least another person not within the extended definition of "client" in s 117). Such a document must find its claim to protection if at all under par (a) or par (b)."
14 Brott and Surry act for creditors of Buzzle who apparently have an interest in seeing Mr Wily succeed in making maximum recoveries for the benefit of Buzzle's creditors generally, as well as for parties who are prepared to finance the conduct of examinations by Mr Wily. It is acknowledged by Mr Wily that Brott and Surry are playing that role. He does not assert that either Brott or Surry has provided, or is providing, legal services to him; nor, I assume, would he see them as obliged to prefer and promote his interests in the way that a fiduciary must. The creditors of Buzzle for whom Brott and Surry act are allies of Mr Wily in his endeavours to maximize returns for creditors generally. Brott and Surry, in the interests of those clients, are likewise allies of Mr Wily. Those allies may well be disposed to take steps to suggest to Mr Wily how he might approach litigation and be willing also to assist him financially. But none of these circumstances makes Mr Wily, in any sense at all, a "client" of Brott or Surry.
15 For these reasons, I do not regard s.118, as applied by Part 36 rule 13(2)(a), as supporting claims by Mr Wily, Brott and Surry that they are justified in declining to produce documents embodying communications between Mr Wily and Brott or documents embodying communications between Mr Wily and Surry.
16 I turn now to an alternative basis on which certain of the relevant documents are said to be protected by Part 36 rule 13(2)(a), namely, that access to the documents would, as mentioned in s.119 of the Evidence Act, result in the disclosure of a confidential communication between Mr Wily (or a lawyer acting for him) and another person that was made (or the contents of a confidential document that was prepared) for the dominant purpose of Mr Wily being provided with professional legal services relating to a proceeding.
17 Subject to what may be said about the litigation funding aspects (to which I shall turn in a moment), I see no basis on which this approach can avail Mr Wily. The communications between Mr Wily on the one hand and Brott and Surry on the other as to litigation strategies Mr Wily might adopt were not made for the purpose of Mr Wily being provided with professional legal services. Without going into the details of the various documents, I think I can fairly say that their purpose is to provide Mr Wily with suggestions as to courses he may wish to consider taking in relation to the examinations he is to conduct as liquidator. Mr Wily may consult with his solicitors about the suggestions (or may have already done so), but the content of the documents was not provided for a purpose of his being provided with such professional legal services as he may himself choose (or may already have chosen) to seek by reference to that content.
18 Finally, there is the question of the applicability, through Part 36 rule 13(2)(a), of s.119 in relation to the aspects of the documents' content concerning litigation funding which was singled out for special mention in submissions because of the potential relevance to it of the decision in Re Global Medical Imaging Ltd [2001] NSWSC 476. In that case, Santow J held that a litigation funding agreement expressed by its parties to be confidential was within the scope of s.119. His Honour said:
"To deny legal privilege to a funding agreement of this sort would fail to give proper weight to its inextricable connection with the very subject matter of the legal advice that might be given and the nature of the professional legal services to be rendered. It has the potential to reveal the litigant's likely legal strategy. The funding agreement in a literal and substantive sense, fulfils the purpose of providing legal services in terms not only of the overall capacity to have them at all, but also their availability at critical junctures in the case. While it may not reveal the content of legal advice, it reveals the confidential circumstances of its availability and throws oblique light on the confidential circumstances to which the advice is directed.
One could, for example, infer from a funding agreement the likelihood of tactical advice being given of a particular kind at different stages of the litigation or, for that matter, of the likelihood of an appeal being advised or not advised. I consider this funding agreement could do so."
19 In the present case, the relevant "proceeding" is each of the anticipated or pending examinations to be conducted by Mr Wily as liquidator. I accept that, for the reasons given by Santow J, communications and documents concerning financing of Mr Wily to embark upon such examinations have a dominant purpose of his being provided with the professional legal services of his own lawyers (that is, those of whom he is undoubtedly a client and whose services will be secured through the financing) so that, to the extent that the communications and documents are subject to a non-disclosure obligation of the kind referred to in the definitions of "confidential communication" and "confidential document" in s.117, they are within the protection of s.119.
20 The access the plaintiff seeks to the documents produced by Mr Wily in response to the notice to produce and the documents produced on subpoena by Brott and Surry which Mr Wily seeks to resist on the basis of client legal privilege will therefore be granted except to the extent that resistance is founded on the propositions related to litigation funding and the applicability of s. 119 accordingly brought about by Part 36 rule 13(2)(a). I emphasise that a non-disclosure obligation of the kind referred to in the definitions of "confidential communication" and "confidential document" is an essential element of that applicability. The most appropriate way forward will be for Mr Wily to indicate to me which of the documents to which the privilege claim relates are the subject of a claim based on that ground so that I may then examine those documents only, determine whether the claim is properly made in relation to them, segregate the documents which I am satisfied are protected on that basis and formally grant the access sought in relation to all others in respect of which a privilege claim was originally made.
21 I direct that, within seven days from today, Mr Wily file by delivery to my Associate a list identifying those of the documents the subject to the claim for privilege previously asserted which he claims to attract the protection of s.119 of the Evidence Act, via Part 36 rule 13(2)(a) of the Supreme Court Rules, conformably with these reasons. The list must identify in relation to each document the source and terms of the non-disclosure obligation applying to the document which is of the kind referred to in the s.117 definitions of "confidential communication" and "confidential document".