Archer Capital 4A Pty Ltd as trustee for the Archer Capital Trust 4A v Sage Group plc

Archer Capital 4A Pty Ltd as trustee for the Archer Capital Trust 4A v Sage Group plc - [2013] FCA 1098 - FCA 2013 case summary — Zoe

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BACKGROUND AND OVERVIEW 2 The nature of the proceedings between the applicants and Sage is summarised in an earlier judgment in relation to an interlocutory application in which the respondent sought further discovery: Archer Capital 4A Pty Ltd v The Sage Group plc (No. 1) [2013] FCA 1029 at [3]-[7]. It is unnecessary to repeat that summary. Suffice it to say that the proceedings relate to the proposed acquisition by Sage of shares held by the applicants in MYOB Cayman Holdings Ltd, the holding company of a group of companies that developed and sold accounting and business management software (Proposed Transaction). The Proposed Transaction did not proceed. The applicants claim damages from Sage for breach of contract, equitable damages arising from an alleged estoppel and damages for alleged misleading and deceptive conduct arising from their dealings with Sage in relation to the Proposed Transaction. 3 The applicants' challenge to Sage's privilege claims is directed at three broad categories of documents. There is some overlap between these three categories. 4 The first category of documents comprises communications involving one of Sage's external advisers. As would be expected with any proposed commercial transaction of the size and complexity of the Proposed Transaction, Sage engaged a number of external advisers to advise it in connection with the transaction. Those advisers included, relevantly, a firm of lawyers, Allen and Overy (A & O), which was retained to provide legal advice, and Deutsche Bank AG (Deutsche), an investment bank, which was engaged as Sage's exclusive financial adviser in connection with the Proposed Transaction. 5 The applicants challenge Sage's privilege claims in relation to 34 communications, mostly emails, to and from Deutsche, on the one hand, and Sage or A & O on the other. The essence of this challenge is that these communications were not made by Deutsche as agent for Sage for the purpose of Sage obtaining legal advice, but rather concerned Deutsche's role as financial adviser. 6 The second category of challenged communications comprises communications (again mostly emails) involving Sage's Company Secretary and Group Legal Director, Michael Robinson. Mr Robinson is a qualified and experienced solicitor who is admitted to practice as a solicitor in the United Kingdom and holds a current practising certificate issued by the Solicitors Regulation Authority in the United Kingdom. The applicants challenge a number of privilege claims made by Sage where the basis of the claim is that the relevant communication was sent to or received by Mr Robinson for the dominant purpose of Mr Robinson providing legal advice to Sage. The essence of the challenge is that Mr Robinson lacks the independence necessary to found a claim of legal professional privilege where the relevant lawyer is employed in-house by the client, as is the case with Mr Robinson. 7 The third category of challenged communications comprises all communications and documents sent or disclosed by Sage to Deutsche. The basis of the challenge to the privilege claims in relation to this category of documents is that the disclosure to Deutsche effected a waiver of any privilege that would otherwise attach to these communications. The waiver is said to follow primarily from the fact that, as well as being Sage's financial adviser in relation to the Proposed Transaction, Deutsche was also a potential financier in relation to an aspect of the transaction. This dual role is said to taint the confidentiality that would otherwise attach to communications between Sage and its external advisers. 8 The issues, relevant principles and evidence that arise and need to be considered in relation to the challenge to each of these three categories of communications differ. Accordingly, the three categories of challenge will be addressed separately. Before turning to the separate challenges, however, some of the general principles in relation to legal professional privilege should be outlined.

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GENERAL PRINCIPLES 9 As Sage's privilege claims are made in the context of pre-trial disclosure or inspection of documents, the common law applies, not the Evidence Act 1995 (Cth): Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 (Esso) at [17]-[28] and [64]. 10 A communication or document will be privileged if it was made or brought into existence for the dominant purpose of obtaining or providing legal advice (the advice limb), or to conduct or aid in the conduct of litigation in reasonable prospect (the litigation limb): Esso at [35], [61]; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [9]. Most, if not all, of the applicants' challenges relate to communications where the privilege claim is made under the advice limb. 11 A dominant purpose is a reference to "the ruling, prevailing, or most influential purpose": Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416. It is a purpose that predominates over other purposes; the prevailing or paramount purpose: AWB Ltd v Cole (2006) 152 FCR 382 (AWB) at [105]-[106]. The purpose for which a document is brought into existence is a question of fact that must be determined objectively, however evidence of the subjective purpose will be relevant and often decisive: Esso at [172]; Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [6]. An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 (Pratt) at [35]. 12 The concept of legal advice in the context of the advice limb is fairly broad. It goes beyond formal advice as to the law, and extends to professional advice as to what a party should prudently or sensibly do in a relevant legal context, but does not extend to advice that is purely factual or commercial: Balabel v Air India (1988) Ch 317 at 323, 330 (Balabel); DSE (Holdings) Pty Ltd v Intertan Inc (2003) 135 FCR 151 (DSE) at [45]; AWB at [100]. 13 The party claiming privilege bears the onus of proving that the communication was made, or the document created, for the dominant purpose of giving or obtaining legal advice or aiding in the conduct of litigation or prospective litigation. It is not sufficient for a party to merely assert a claim for privilege; the party claiming privilege must establish the facts that provide the basis for the claim: National Crime Authority v S (1991) 29 FCR 203 at 211; Kennedy v Wallace (2004) 142 FCR 185 (Kennedy) at [13]-[17]. The existence of privilege is not established by mere verbal formula, even if unchallenged: Grant v Downs (1976) 135 CLR 674 (Grant) at 689. 14 It may be necessary for there to be evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed: Kennedy at [12]-[17]. The Court has the power to examine documents in respect of which a claim is made, and should not hesitate to exercise that power where the claim is challenged: Grant at 689. 15 The relevant principles in relation to privilege in respect of communications to or from a third party, privilege under the advice limb where the relevant lawyer is an "in-house" lawyer and waiver are addressed later in the specific context of the three categories of communications subject to challenge.

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Issues and relevant principles 17 The issue raised by the challenge to the privilege claim in relation to these documents is the extent to which communications between a third party (in this case Deutsche) and the client's lawyer (here, A & O) or the client itself (relevantly Sage) may be privileged when the dominant purpose of the communications is for the client to be provided with legal advice by the lawyer. The applicants contend that the relevant communications between Deutsche and Sage and between Deutsche and A & O are not privileged because Deutsche was not Sage's agent for the purpose of communicating with A & O on behalf of Sage, and Deutsche's retainer did not extend (or there was no evidence that it did extend) to providing information to either A & O or Sage for the purpose of Sage obtaining legal advice from A & O. Rather, it is contended that the communications related to Deutsche's role as independent financial adviser to Sage in relation to the Proposed Transaction. 18 The leading authority in relation to the principles to apply in relation to legal professional privilege in the case of third party communications is the decision of the Full Court of this Court in Pratt. 19 In Pratt, the question for the Full Court was whether privilege attached to a report prepared by a corporation's accountant and then forwarded by the corporation to its lawyer. The corporation claimed that the accountant's report was prepared for the dominant purpose of obtaining legal advice. The primary judge found that privilege does not attach to a communication between a solicitor or client and a third party unless the third party is an agent of the client or solicitor for the purpose of the communication. That finding was based on the decision in Wheeler v Le Marchant (1881) 17 ChD 675. The Full Court found that the accountant was not, for relevant purposes, an agent of the corporation, but that nevertheless legal advice privilege is capable of extending to a documentary communication prepared by a third party and sent to the client's lawyer for the dominant purpose of the client obtaining legal advice. 20 Finn J, after finding that the accountant was not relevantly the corporation's agent, said (at [41]): 41 To deny that a third party is an agent in such circumstances does not, though, provide a sufficient or principled reason for denying privilege to the documentary communication (or contents) it has authored. The important consideration in my view 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. If that function was to enable the principal to make the communication necessary to obtain legal advice it required, I can see no reason for withholding the privilege from the documentary communication authored by the third party. That party has been so implicated in the communication made by the client to its legal adviser as to bring its work product within the rationale of legal advice privilege. 21 Stone J, after reviewing the history of legal professional privilege, put the relevant principle in the following terms (at [103], [105]): 103 … The complexity of present day commerce means that it is increasingly necessary for a client to have the assistance of experts, including financial experts such as accountants, in formulating a request for legal advice and in providing legal advisers with sufficient understanding of the facts to enable that advice to be given. This much was recognised by Taylor LJ in Balabel. … 105 The coherent rationale for legal professional privilege developed by the High Court does not lend itself to artificial distinction between situations where that expert assistance is provided by an agent or alter ego of the client and where it is provided by a third party. Nor, in my view, should the availability of privilege depend on whether the expert opinion is delivered to the lawyer directly by the expert or by the client. Provided that the dominant purpose requirement is met I see no reason why privilege should not extend to the communication by the expert to the client. This approach is consistent with the High Court's ruling in Daniels (see [84]) that legal professional privilege protects communications and therefore prevents the disclosure of information or documents that would reveal communications protected by the doctrine. 22 Whilst Pratt concerned a communication by the third party to the lawyer, it is apparent, at least from the judgment of Stone J, that the same principle applies if the third party provided the document to the client for delivery to the lawyer. It is also clear that the same principles apply in a case of communications from a client to the third party: New South Wales v Betfair Pty Ltd (2009) 180 FCR 543 (Betfair) at [40]. The question is what was the intended use (or uses) for which the communications were brought into existence: Betfair at [34]. If made for the dominant purpose of a client seeking and obtaining legal advice from its lawyer, the dominant purpose test will be satisfied: Betfair at [40]. 23 Whilst ultimately the central question is the purpose for which the communication was made or document created, regard must or should also be had to the relevant context, including the relationship between the third party and the client. In Pratt, Finn J said (at [45]): 45 … particular care needs to be taken in evaluating evidence of purpose in a setting in which the third party performs a professional function for a principal in a non-litigation setting but in a matter in which legal advice is to be or is being sought by that principal. There is a number of reasons why this is so. First, the third-party principal relationship (be it accountant-client, assessor-client or otherwise) will not as such attract privilege to any exchanges made in it: Baker v Campbell at 66, 75, 94 and 128. For this reason alone caution needs to be taken in determining whether the parties' relationship has a character other than the above for privilege purposes. 24 Having regard to this cautionary observation by Finn J in Pratt, before turning to the evidence of purpose in relation to the relevant communications, it is necessary to consider the evidence of the relationship between Sage and Deutsche, the role Deutsche played in relation to the Proposed Transaction and the terms of Deutsche's retainer. That evidence is also relevant given that Sage submits that, even if privilege only attaches to communications where Deutsche was relevantly acting as Sage's agent, it should be concluded that Deutsche was Sage's agent for the purpose of communicating with A & O in relation to the Proposed Transaction. In this regard, Sage relies on the decision of Allsop J (as his Honour the Chief Justice then was) in DSE, where, in relevantly similar circumstances involving a complex commercial transaction and multiple advisers, his Honour found that the relevant client's lawyer and investment bank were the client's agents to communicate with each other for the purpose of the lawyers advising the client in relation to the transaction. That finding was made despite the fact that the terms of engagement between the client and the investment bank expressly stated that the investment bank was an independent contractor and not an agent: DSE at [21]-[23]; see also Tabcorp Holdings Ltd v State of Victoria [2013] VSC 302.

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Evidence 25 In relation to the nature of the relationship between Deutsche and Sage, the applicants rely primarily on the fact that in its Defence, Sage denied that Deutsche was its agent. Paragraph 12 of the Amended Statement of Claim alleges agency in the following terms: 12 At all material times, Deutsche Bank AG Sydney Branch (Deutsche Bank): (a) acted as agent and advisor to Sage in relation to a transaction involving the possible acquisition by Sage of MYOB or its assets; (b) was held out by Sage to Archer and its representatives as Sage's agent and advisor in relation to a transaction involving the possible acquisition by Sage of MYOB or its assets; (c) ….. 26 In its Defence, Sage pleads to paragraph 12 as follows: 12. In answer to paragraph 12 of the ASOC, Sage: (a) says that Deutsche Bank AG (Deutsche Bank), acting through its London branch, was engaged as exclusive financial advisor to Sage in connection with the possible acquisition by Sage of the business or assets of MYOB to provide Sage with financial advice and assistance in connection with such a transaction; Particulars (i) Letter from Deutsche Bank AG London to Sage dated 10 August 2011. (b) further says that the terms on which Deutsche Bank was appointed (as referred to in paragraph (a) above) provide that its role was that of an independent contractor and to the fullest extent permitted by law those terms were not intended to create a fiduciary relationship between Sage and Deutsche Bank; 27 The applicants also rely on the terms of the retainer letter Deutsche sent to Sage dated 10 August 2011. The applicants point to the fact that the letter does not provide that Deutsche was appointed to act as Sage's agent in any way in relation to the Proposed Transaction. The retainer letter relevantly provides as follows under the subheading "Services to be rendered": During the term of our engagement, Deutsche Bank will provide you with financial advice and assistance in connection with a transaction, which may include, if appropriate: (a) preparing a valuation analysis of the company, and together with Sage's other professional advisers advising Sage on appropriate transactions structure, process, financing and timing; … (d) providing advice and guidance to the board of directors of Sage, together with Sage's other professional advisers, on its responsibilities and conduct during the transaction; … (g) co-ordinating the other advisers to Sage assisting with the transaction; … (m) advising on the compliance with the rules of, and liaising with the London Stock Exchange, the UK Listing Authority, and other regulatory authorities, as required. 28 On page 3 of the letter the following appears: Deutsche Bank is authorised by Sage, to the extent Deutsche deems appropriate, to delegate any of its functions and responsibilities hereunder to, and to share information with, any member of the DB Group (as defined below) or any Relevant Persons (as defined below). 29 The expression "Relevant Persons" is defined on page 6 of the letter to include, relevantly, "consultants and agents" of any member of Deutsche and its subsidiaries. 30 Sage relies on four affidavits sworn by Mr Denes Blazer, a solicitor employed at A & O: affidavit dated 28 August 2013 (Blazer 1); affidavit dated 29 August 2013 (Blazer 2); affidavit dated 30 August 2013 (Blazer 3) and affidavit dated 1 September 2013 (Blazer 4). Mr Blazer was not cross-examined. Relevant to the issue of the relationship between Sage's advisers, Mr Blazer gives information and belief evidence based on what he has been told by Mr Robinson of Sage and senior officers of Deutsche, in particular Mr Timothy Longstaff. In relation to Mr Robinson, Mr Blazer was informed as follows (Blazer 1 at [34]): Robinson expected and regarded it as desirable, if not essential, that Sage's advisers would communicate with each other from time to time, in order to be in a position to properly advise Sage. In particular, he expected Sage's financial adviser, Deutsche, to work closely with Sage's external lawyers, since the commercial negotiations impacted legal issues and vice-versa. He understood and expected that Deutsche would communicate directly with Sage's external lawyers from time to time, and, where Deutsche considered legal advice or services to be necessary, request that that legal advice be given or services be performed, for Sage's benefit. 31 In relation to Mr Longstaff, Mr Blazer was informed of the following (Blazer 2 at [11]-[13]): The proposed transaction was large and complex, involving competing bidders and the proposed purchase for over $1billion of shares in a company with several operating subsidiaries. Like most other clients who are considering large merger and acquisition transactions, Sage retained a number of advisers, both legal and non-legal. In Longstaff's professional experience, it is desirable, if not essential, for such advisers to communicate with one another from time to time. In cross border transactions this is usually done by email. It is also Longstaff's experience that, in large transactions like the proposed transaction, the financial adviser (Deutsche) often acts as a co-ordinator and as a conduit between the various advisers and the clients. To Longstaff's knowledge, Deutsche did so pursuant to the engagement. In respect of the proposed transaction, Sage's legal advisers included A & O. Longstaff understood from the terms of the engagement that part of Deutsche's role on the proposed transaction included communicating with Sage's legal advisers, including by providing information to and requesting advice from Sage's legal advisers, so that those legal advisers could advise Sage. 32 Blazer was also informed by Mr Reede, a partner of A & O who led the A & O advisory team on the Proposed Transaction, that Mr Reede understood that in order for the A & O team of lawyers to provide legal advice to Sage, it was also "necessary or desirable for A & O to communicate, from time to time, with Sage's other legal and non-legal professional advisers" including Deutsche (Blazer 1 at [59]). 33 The Blazer affidavits also contain information and belief evidence relating to the general nature and subjective understanding or belief of some or all of the authors, senders and recipients of each of the 34 documentary communications. This evidence was not disputed by the applicants. Save in one respect, which relates to the subject matter of some of the communications, the applicants do not make any submissions in respect of individual documents or the specific evidence in the Blazer affidavits concerning the purpose for which the documents or communications were created, sent or received. The evidence relating to the creation or sending of each of the relevant documents or communications is relevant to the general nature of the relationship between Deutsche, on the one hand, and Sage or A & O on the other, including whether Deutsche's retainer extended to acting as Sage's agent for the purposes of communicating with A & O. 34 Given that neither party directed submissions to the evidence relating specifically to each of the 34 documents, I do not propose to set out all the evidence relating to each of the documents. Three examples, relating to documents 6, 7 and 16, will suffice. It should be noted in this context that, no doubt because of the large number of documents subject to challenge, in addressing the nature and purpose of particular documents, the Blazer affidavits generally group like documents together (usually in a table format) and then deal with them collectively. It follows that the evidence in relation to particular documents is often quite general, somewhat formulaic, and sometimes includes alternative descriptions of the nature and purpose of the documents. 35 Document number 6 is an email from Mr Richard Cranfield at A & O to Mr Drew Price at Deutsche. It was copied to Mr Robinson. Mr Blazer was informed by Mr Robinson that document 6 is one of a number of emails that he received that contain legal advice relating to the Proposed Transaction which he, or Sage's executives or Deutsche, had requested for the benefit of Sage, or which contain requests for instructions from Sage's external lawyers (Blazer 1 at [43]). Mr Blazer was informed by Mr Cranfield that document 6 is one of a number of emails which Mr Cranfield sent pursuant to A & O's retainer in connection with the Proposed Transaction. The reason he sent the email was to provide legal advice to Sage in connection with the Proposed Transaction (Blazer 2 at [29]). 36 Document 7 is an email from Mr Price at Deutsche to Mr Cranfield at A & O. It was copied to Mr Robinson. Mr Blazer states that he was informed by Mr Robinson that document 7 is one of two emails which he received and which he believes were requests from Deutsche or Sage's executives that legal advice be given to Sage (Blazer 1 at [45]). Mr Blazer was also informed by Mr Price, that document 7 is a confidential email which Mr Price sent whilst performing work relating to the Proposed Transaction, that he understands that in doing so he was acting pursuant to Deutsche's engagement as financial adviser to Sage and that the reason he sent the email was to request that legal advice be provided to Sage by its external lawyers in connection with the Proposed Transaction (Blazer 2 at [24]). 37 Document 16 is an email from Mr Robinson to Mr Mann at Deutsche. It was copied to, amongst others, Mr Reede of A & O. Mr Blazer states that he was informed by Mr Robinson that document 16 is one of a number of emails which he sent in his capacity as Group Legal Director and that the main reason he sent those particular emails was to provide legal advice to Sage or to obtain information or instructions so that he could provide legal advice to Sage in respect of the Proposed Transaction (Blazer 1 at [39]). Mr Blazer was also informed by Mr Reede of A & O that document 16 is one of a number of emails which Mr Reede received pursuant to A & O's retainer that contain requests from or on behalf of Sage for legal advice from A & O and/or instructions to enable A & O to provide legal advice to Sage in connection with the Proposed Transaction. 38 With the exception of three documents (documents 5, 120 and 160), there is similar evidence in relation to the nature and purpose of each of the remaining 34 documents.

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Submissions 39 The applicants submit that the 34 documents are not privileged for essentially five reasons: first, because Deutsche was not Sage's agent for the purpose of communication with A & O; second, because Pratt requires the third party to be retained by the client for the purpose of providing information to the lawyer for the dominant purpose of providing legal advice to the client; third, that given the relationship between Deutsche and Sage it should not be concluded that the communications between Deutsche and A & O were for the dominant purpose of Sage being provided with legal advice; fourth, in relation to communications between Deutsche and Sage, there is no evidence that Deutsche's retainer included the role of providing information to Sage for the dominant purpose of Sage obtaining legal advice; and fifth, the available inference is that Deutsche was simply providing financial advice to Sage. The applicants also characterise Sage's privilege claim in relation to these 34 documents as amounting to a claim that, given the relationship between Sage and Deutsche, all communications between Deutsche and A & O must be privileged. 40 In relation to the submission that the communications related to the provision of financial advice by Deutsche, the applicants point to the fact that it is apparent from the document descriptions that have been provided by Sage that the subject matter of a number of the communications involving Deutsche was an issue concerning the structure of the Proposed Transaction in the context of compliance with the UK listing rules. In particular, the subject matter of a number of the documents refers to "class 1." This is said to be a reference to the issue of whether the consideration Sage proposed to pay to acquire the MYOB shares would exceed 25 per cent of the company's market capitalisation. If it did, the listing rules would require Sage to seek shareholder approval for the acquisition. The subject matter of other emails is "subsidiary loan". This is said to be a reference to a proposed loan to MYOB designed to ensure that the consideration paid by Sage would not exceed 25% of Sage's market capitalisation. Sage points to the fact that Deutsche's engagement letter specifies that the services to be provided by Deutsche included advising on compliance with the UK listing rules and liaising with the London Stock Exchange and the UK Listing Authority. Sage also points to the fact that there is evidence of communications between Mr Robinson, on behalf of Sage, and Deutsche on this topic in respect of which there is no privilege claim, presumably because the communications involve financial, not legal advice (tabs 3, 4 and 5 to Exhibit RGH-4 to the affidavit of Mr Harris). It is submitted, on this basis, that it can therefore be inferred that all of the communications to and from Deutsche involve Deutsche giving advice pursuant to its engagement as financial adviser, as opposed to obtaining or providing information to assist the provision of legal advice to Sage by A & O. 41 Sage submits that the 34 documents are privileged because: first, Pratt makes it clear that it is unnecessary for the third party to be an agent of either the client or the client's lawyer; second, in any event, the evidence supports an inference or finding, similar to the finding of Allsop J in DSE, that Deutsche and A & O were Sage's agents for the purpose of communicating with a view to legal advice being provided to Sage by A & O; and third, irrespective of whether an agency relationship existed, the evidence supports a finding that the 34 documents were created or communicated to or by Deutsche for the dominant purpose of Sage requesting or obtaining legal advice from A & O.

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Consideration 42 I reject the applicants challenge to the privilege claimed in respect of the 34 Deutsche communications, other than in respect of one document, document 160. My reasons for rejecting the challenge to the balance of the documents on the grounds advanced by the applicants are as follows. 43 Whilst Pratt makes it clear that it is not necessary for there to be an agency relationship between Deutsche and Sage for the communications to be privileged, the evidence supports an inference that there was a limited agency relationship between Sage and Deutsche and A & O, similar to that found by Allsop J in DSE; namely that Deutsche and A & O were the agents of Sage to request, give and receive views and information to and from each other for the purpose of A & O providing legal advice to Sage in relation to the Proposed Transaction. The evidence supporting this inference includes the terms of the engagement letter, the general evidence in the Blazer affidavits concerning the relationship and dealings between Sage, Deutsche and A & O in relation to the Proposed Transaction and the evidence in relation to the nature of each of the 34 communications and the reasons they were sent. 44 I reject the applicants' submission that this finding is precluded by the pleadings. Paragraph 12 of the amended statement of claim pleads agency in broad and unparticularised terms. As pleaded, it could include, for example, the allegation that Deutsche could contractually bind Sage in relation to any aspect of the Proposed Transaction. Perhaps not surprisingly, the broad allegation of agency is met with an equally broad denial, together with an assertion that the denial is made in the context that the applicants have refused to provide particulars of the alleged agency. In my opinion, in these circumstances the fact that in its Defence Sage denies a general agency relationship does not preclude Sage from raising the very limited agency point in the context of this application. The position may have been different if the applicants had particularised the alleged agency in terms that made it clear that it included the very limited type of agency in question here, and Sage had denied that allegation. 45 In any event, and more importantly, the evidence also supports the inference or conclusion that the dominant purpose for the creation or sending of each of the 34 communications or documents, aside from document 160, was Sage seeking to obtain legal advice from A & O in relation to the Proposed Transaction. That inference again flows from the general evidence concerning the way Sage and its advisers conducted themselves in relation to the Proposed Transaction, the terms of the retainer letter and, importantly, the evidence concerning the nature and purpose of each of the relevant documents. 46 The applicants' submissions in relation to specific documents in this category of documents essentially address only those documents where there is no specific evidence concerning the nature or purpose of the communication (documents 5, 120 and 160) and those documents where the subject matter appears to concern the UK listing rules, a matter in respect of which (as is apparent from the engagement letter) Deutsche was engaged to provide financial advice to Sage. 47 In relation to documents 5, 120 and 160, given the absence of specific evidence concerning these documents, I formed a view that it was appropriate for me to inspect the documents. I will return to the inspection of documents later. 48 In relation to the documents or communications said to relate to the UK listing rules, the fact that these communications may relate to a topic in respect of which Deutsche was engaged to provide financial advice does not mean that the dominant purpose for the communications did not relate to the provision of legal advice by A & O in relation to the same topic. No doubt compliance with the UK listing rules gave rise to both legal and financial issues. There is no suggestion in the evidence that A & O's retainer did not extend to providing legal advice in that regard. It follows that the subject matter of these communications alone is not a sufficient basis to reject Sage's privilege claim in relation to them, particularly given the specific evidence, in relation to each document, that the purpose related to Sage obtaining legal advice. In any event, as detailed later, my inspection of the documents confirmed that these documents did relate to or involve the provision of legal advice by A & O. 49 The applicants submitted that if there was any "residual doubt" that some of the communications involving Deutsche satisfy the dominant purpose test, the appropriate course would be for the Court to inspect the documents. For the reasons already given, I do not entertain any residual doubt in relation to the character or purpose of any the relevant communications based on the applicants' general submissions concerning agency and Pratt. Nevertheless, given the absence of specific evidence concerning three documents and the fact that many of the documents in this category of documents appear to concern an issue in respect of which Deutsche was retained to provide financial advice, the appropriate course is for the Court to inspect the documents. In deciding to inspect the documents, I have also had regard to the cautionary words of Finn J in Pratt and the authorities that indicate that the Court should not hesitate to inspect documents subject to privilege claim where that claim is challenged. 50 In considering the documents, I have had regard to the multi-faceted and complex nature of the Proposed Transaction and the dealings between Sage and its advisers in relation to it. Accordingly, I have taken a common-sense and practical approach to the communications and the concept of legal advice in the context of commercial dealings. As Allsop J said in DSE (at [21]), in considering the advice limb in the context of a complex commercial transaction, it is important to recognise: …that the nature and provision of legal advice by a firm [of solicitors] in a context of the kind here [a large commercial transaction] was no doubt multi-faceted, complex and not amenable to sharp division between what was advisory and what was merely administrative. In a transaction of this kind, the clients would expect aspects of what was done and not done that might possibly be of significance to be considered by, and discussed between and among, the experienced lawyers and the experienced investment bankers. 51 In that context, Allsop J, drawing from the observations of Taylor LJ in Balabel at 330, also took a broad approach to what constitutes legal advice. His Honour held (at [45]) that it is necessary to recognise "the form and nature of advice in a practical day to day context": What legal advice is, however, goes beyond formal advice as to the law. This recognition does not see the privilege extend to pure commercial advice. In any given circumstance, however, it may be impossible to disentangle the lawyers' views of the legal framework from other reasons that all go to make up the "advice as to what should prudently and sensibly be done in the relevant legal framework" (Taylor LJ in Balabel at 330). 52 With one exception (document 160), my inspection of the documents within this category of challenged documents either confirmed that the relevant communications involving Deutsche were created or sent to or by Deutsche for the dominant purpose of Sage obtaining legal advice from A & O, or at the very least did not cast any doubt on the drawing of that inference or conclusion from the evidence concerning the nature of the relationship between Deutsche, A & O and Sage and the evidence of the purpose of the authors and recipients of the documents. 53 In relation to documents 5 and 120, I am satisfied from their content that they satisfy the dominant purpose test. Whilst document 5 itself is a fairly innocuous email, it forwards another email that contains legal advice in the broad DSE sense. Document 120 is marginal. It is again a very innocuous email and on one view could be considered to be merely administrative. However, given the difficulty of distinguishing, in the context of a complex commercial transaction, between the administrative and the advisory, I am prepared to infer from the content of the document that it was sent for the dominant purpose of Sage obtaining legal advice from A & O. 54 Document 160 is more difficult. It was sent to a large number of people (most of who were simply copied in on the email) by a solicitor who was advising Sage's lending syndicate (not Sage). Whilst the recipients included a number of solicitors at A & O and the subject matter of the communication concerned a legal issue relating to the Proposed Transaction, in the absence of any evidence concerning this communication I am not prepared to infer that the dominant purpose of the author in sending this communication to A & O was so that A & O could provide legal advice to Sage. 55 In relation to the documents concerning issues relating to the UK listing rules, the inference to be drawn from these communications is that both Deutsche and A & O were involved in advising Sage in relation to compliance with the UK listing rules. Deutsche was involved in providing financial advice to Sage and, perhaps more importantly, was involved in providing financial information and analysis to both Sage and A & O for the purpose of A & O providing legal advice to Sage on this topic. In many instances it is difficult to disentangle the financial from the legal; the relevant advice is not amenable to sharp division between what involves purely financial advice from Deutsche and what involves a communication for the purpose of Sage obtaining legal advice from A & O. This is perhaps consistent with what one would expect given the complex nature of the Proposed Transaction and the involvement of a number of advisers. Given the unchallenged evidence in relation to the nature or purpose of these communications, however, it should be accepted that the dominant purpose did relate to the provision of legal advice by A & O. I will address the fact that other communications concerning the UK listing rules issue have been disclosed, and will apparently be relied on by Sage at trial, in the context of the applicants' submissions concerning waiver in relation to communications involving Mr Robinson.

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COMMUNICATIONS INVOLVING MR ROBINSON 56 The applicants accept that communications to or from an in-house solicitor may attract legal professional privilege if the communications are confidential and satisfy the dominant purpose test. The applicants submit, however, that for the dominant purpose test to be satisfied in respect of an in-house solicitor, it must be established that the communication was sent or received by the solicitor in his capacity as an independent legal adviser. The challenge to the privilege claims in respect of documents sent to or received by Mr Robinson, where the claim is that the communications were made for the dominant purpose of Mr Robinson providing legal advice to Sage, is that the Court should not be satisfied that Mr Robinson was at all times acting in his capacity as independent legal adviser in relation to the transaction. That submission is, in turn, based on the contention that the evidence demonstrates that Mr Robinson's role in relation to the Proposed Transaction was not exclusively as independent legal adviser. 57 The documents or communications the subject of this challenge (the Relevant Robinson Documents) are listed in tabs 8 and 9 of exhibit "RGH-1" to the affidavit of Mr Harris dated 12 July 2013. The defining characteristic of these documents is that they are communications that passed between Mr Robinson, on the one hand, and other officers or employees of Sage, on the other, but not copied to A & O (tab 8) and communications that passed between Robinson, on the one hand, and officers or employees of Deutsche and/or PwC and/or Rothschild on the other, but again not copied to A & O (tab 9). 58 Before turning to the evidence and competing submissions, it is necessary to briefly outline the relevant principles where a legal professional privilege claim is made in respect of communications relating to advice requested or provided by an employed or in-house solicitor. In particular, it is necessary to consider whether, as the applicants submit, there is a requirement of independence, and if so, what that requirement entails.

[14]

Principles - in-house lawyers and the advice limb 59 The starting point is the decision of the High Court in Waterford v The Commonwealth at (1986)-(1987) 163 CLR 54 (Waterford). The controversy in Waterford was whether the Commonwealth could claim legal professional privilege in respect of documents the subject matter of which was legal advice obtained from a salaried government lawyer within a government department. The High Court answered that question in the affirmative. 60 Mason and Wilson JJ found that there was no reason to place legal officers in government employment outside the bounds of legal professional privilege. After referring to what was said in Grant at 685 about the rationale behind legal professional privilege, their Honours said (at p 62): To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. Whether in any particular case a relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment. (emphasis added) 61 Mason and Wilson JJ did not expand on what was meant by the requirement that the advice have an "independent character", though it appears that this was something that their Honours considered flowed from the nature of the professional relationship between the relevant legal adviser and their employer. This is consistent with the fact that their Honours had earlier cited (at 60-61) a passage from the judgment of Lord Denning MR in Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1972] 2 QB 102 at 129. In that decision, Lord Denning MR acknowledged that an in-house legal adviser may sometimes perform work for his employer in another capacity. Communications in that other capacity would not be subject to the privilege. His Lordship continued: Being a servant or agent too, he may be under more pressure from his client. So he must be careful to resist it. He must be as independent in the doing of right as any other legal adviser. 62 Dawson J in Waterford, considered a submission that for communications between a lawyer and client to be privileged, the relevant legal adviser must be independent of the client. His Honour referred (at p 95) to an observation made by the European Court of Justice in AM & S Europe Ltd v Commission of the European Communities [1983] QB 878 which drew a distinction between independent and employed lawyers. Dawson J said, in relation to that distinction: Whilst there is something to be said for the distinction drawn from that passage between independent and employed lawyers, it is not a statement of the position at common law and there is authority in this Court and elsewhere for the proposition that legal professional privilege may attach to communications passing between salaried legal adviser and his employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client. (Emphasis added) 63 Deane J concluded (at 82) that legal professional privilege extends to protect the confidentiality of advice given by appropriately qualified salaried people advisers. His Honour made no reference to any requirement of independence. 64 Only Brennan J appears to have considered that there was a separate requirement of independence if legal professional privilege was to attach to the communications of a salaried legal adviser. His Honour said (at 70): If the purpose of the privilege is to be fulfilled, the legal adviser must be competent and independent. Competent, in order that the legal advice be sound and the conduct of litigation be efficient; independent in order that the personal loyalties, duties or interests of the adviser should not influence the legal advice which he gives nor the fairness of his conduct of litigation on behalf of his client. If a legal adviser is incompetent to advise or to conduct litigation or if he is unable to be professionally detached in giving advice or in conducting litigation, there is an unacceptable risk that the purpose for which privilege is granted will be subverted. (Emphasis added) 65 In Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131 (Australian Hospital Care) Gillard J, having considered the various judgments in Waterford, held (at [37] and [54]) that, in the case of employee legal advisers, it was an essential element of legal professional privilege that the legal adviser "act independently of any pressure from his employer". Gillard J found, however (at [67]-[68]), that once an affidavit is sworn claiming legal professional privilege in a way which leads the Court to the conclusion that the claim was properly made, then the prima facie position is that the legal adviser was acting independently at the relevant time. The burden is then shifted to the party opposing the claim to point to evidence rebutting this presumption. 66 The decision of Gillard J in Australian Hospital Care in this respect was followed by Boddice J in Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 (Aquila Coal). In that matter, Boddice J found (at [9]) that there was no presumption of lack of independence in the case of in-house lawyers. Boddice J also found (citing Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts [No 2] [2007] FCA 1445 at [35]) that if the personal loyalties, duties or interests of the in-house lawyer did not influence the professional legal advice given, the requirement for independence would be satisfied. 67 In Seven Network Ltd v News Ltd (2005) 225 ALR 672, Graham J said (at [15]): In my opinion, an in-house lawyer will lack the requisite measure of independence if his advice is at risk of being compromised by virtue of the nature of his employment relationship with his employer. On the other hand, if the personal loyalties, duties and interests of the in-house lawyer do not influence the professional legal advice which he gives, the requirement for independence will be satisfied. 68 In Seven Network Ltd v News Ltd [2005] FCA 142 (Seven Network) Tamberlin J said (at [4]-[5]): The dominant purpose test has particular importance in relation to the position of in-house counsel because they may be in a closer relationship to the management than outside counsel and therefore more exposed to participation in commercial aspects of an enterprise. The courts recognise that being a lawyer employed by an enterprise does not of itself entail a level of independence. Each employment will depend on the way in which the position is structured and executed. For example, some enterprises may treat the in-house adviser as concerned solely in advising and dealing with legal problems. As a matter of commercial reality, however, both internal and external legal advisers will often be involved in expressing views and acting on commercial issues. The authorities recognise that in order to attract privilege the legal adviser should have an appropriate degree of independence so as to ensure that the protection of legal professional privilege is not conferred too widely. Commercial reality requires recognition by the courts that the fact that employed legal advisers not practising on their own account may often be involved to some extent in giving advice of a commercial nature related to the giving of legal advice. Such involvement does not necessarily disqualify the documents relating to that role from privilege. The matter is necessarily one of fact and degree and involves a weighing of the relative importance of the identified purposes. 69 In Rich v Harrington (2007) 245 ALR 106 (Rich), Branson J accepted, primarily on the basis of what Brennan J said in Waterford, that there was a requirement of independence. Her Honour said (at [46]): The requirement that the legal adviser be independent is principally concerned with the nature of the relationship between the client who claims client legal privilege and the legal adviser. The requirement that the communication be made for the dominant purpose of obtaining legal advice or to conduct or aid in the conduct of litigation in reasonable prospect is concerned with the object and subject-matter of the communication. Each criterion must be satisfied before a claim for client legal privilege will succeed. 70 It is relevant to point out that in Rich, the relevant in-house lawyers were partners in a firm of accountants which was the respondent in a sex discrimination case commenced by one of its former employees. At the time they gave the advice, the lawyers were themselves likely respondents in the litigation in prospect. In those circumstances, it is perhaps not surprising that the nature of the relationship between the relevant lawyers and the client and the capacity in which the lawyers were consulted were potentially critical considerations in considering the privilege claims. 71 In Dye v Commonwealth Securities Ltd [No 5] [2010] FCA 950 Katzmann J expressed the view (at [15]) that Branson J might have overstated the content of the requirement that legal professional privilege will only arise where the advice has an independent character. Her Honour doubted that the decision in Waterford requires anything more than that the legal adviser be professionally qualified and acting in a professional capacity. Her Honour was not, however, ultimately required to decide that issue. 72 I doubt that much turns on the apparent difference of opinion of Katzmann J in Dye and Branson J in Rich. Whilst Branson J considered that the requirement of independence was separate to the requirement that the communication meet the dominant purpose test, it is difficult to see how the two elements are not inextricably linked. A communication between a lawyer and his or her employer is unlikely to satisfy the dominant purpose test if the lawyer was not employed as a lawyer (that is, the relationship between the lawyer and the employer was not professional) or the lawyer was not consulted in his or her professional capacity as a lawyer (for example, if they were consulted to provide commercial advice, or provide an administrative service, or were consulted as a partner or officer of the firm or company, not as a lawyer). A communication between the lawyer and his or her employer in those circumstances would not be privileged because it would not meet the dominant purpose test, not because the lawyer was not independent. On the other hand, if the relationship between the employer and lawyer was professional (in the sense that he or she was employed as a lawyer) and they were consulted in that professional context to provide legal advice, the resulting communication is likely to satisfy the dominant purpose test. It is difficult to see any reason in principle why to attract privilege in those circumstances it would be necessary to also satisfy some element of independence on the part of the employed lawyer, for example, by proving that the lawyer was not subject to pressure or other interference arising from the employment relationship. Like Katzmann J, I doubt that Waterford establishes that there is a separate or distinct requirement to prove independence in the case of privilege claims involving in-house lawyers. 73 Were it necessary for me to decide, I would err on the side of concluding that there is no separate requirement of independence in the case of privilege claims where the relevant lawyer is an employed or in-house lawyer. The better view is that any requirement of independence on the part of an in-house lawyer is an aspect of the relationship between the lawyer and the employer (client) and the capacity in which the lawyer is consulted. Legal professional privilege will attach to a confidential communication between an employer and its employed solicitor if it is established that the communication arises as a result of the employer consulting the employed solicitor in a professional capacity in relation to a professional matter that arises from the relationship of lawyer and client. In my opinion it is preferable to approach the issue in this way, rather than relying on presumptions and evidentiary onuses of the sort referred to by Gillard J and Boddice J in, respectively, Australian Hospital Care and Aquila Coal. 74 Ultimately, however, it is unnecessary for me to decide this issue because, for the reasons given later, I am in any event satisfied that Mr Robinson, when consulted in his capacity as Group Legal Director of Sage, had the necessary independence to attract legal professional privilege in respect of communications that would otherwise satisfy the dominant purpose test. That finding is not based on any presumption of independence, but rather on the evidence of Mr Robinson's qualifications, his professional relationship with Sage and the capacity in which he was communicating with Sage and its other advisers.

[15]

Evidence and submissions 75 In relation to the privilege claim relating to the Relevant Robinson Documents, Sage relies primarily on information and belief evidence of Mr Blazer in relation to Mr Robinson's qualifications, duties and responsibilities and his reasons for creating, sending or receiving the relevant documents or communications. That evidence establishes that Mr Robinson has been admitted to practice as a solicitor since the early 1980's and was an employed solicitor and partner of two private law firms until he joined Sage as Company Secretary and Group Legal Director in 2002: Blazer 1 at [18]-[20]. Mr Robinson remains admitted as a solicitor in the United Kingdom and holds a current practising certificate issued by the relevant United Kingdom authorities: Blazer 1 at [21]. 76 In relation to Mr Robinson's role at Sage, Mr Blazer's information and belief evidence is as follows: Blazer 1 at [22]-[28]: 22. In his capacity as Group Legal Director, Robinson is, and was during the period 1 November 2010 to 31 October 2011, the member of the senior management team at Sage who is responsible for all legal and regulatory matters in the Group, with oversight over all ethical issues. Specifically, the principal responsibilities of this role are: (i) leading Sage's legal team. Sage employs approximately 30 practising solicitors across its various offices, who ultimately report to Robinson; (ii) leading on the legal aspects of all significant commercial and corporate merger and acquisition transactions. On such transactions, Robinson is the primary contact and liaison between Sage and its external legal advisers with respect to legal issues, giving instructions, requesting and receiving legal advice; (iii) giving legal advice to Sage, its executives and the Board of Directors on the major legal issues and risks facing the Group; (iv) setting legal policies for the Group, and monitoring their implementation and practice; and (v) advising the Board on the UK Corporate Governance Code and disclosure, listing and prospectus rules. 23. As Group Legal Director, he reports to Sage's Chief Executive Officer. 24. As Company Secretary, his role is to support the Board in all areas of corporate governance. Specifically, his principal responsibilities in this role are: (i) assisting with the organisation of Board and Committee meetings and minuting all those meetings, as well as the AGM; (ii) supporting the Chairman in the Chairman's areas of responsibility (including directors' evaluation); and (iii) advising on the long term incentive schemes of the senior management. 25. As Company Secretary, he reports to the Chairman of the Board of Sage. 26. Robinson does not perform any other roles at Sage besides those of Group Legal Director and Company Secretary. 27. In respect of his involvement in the proposed acquisition by Sage of shares in MYOB between about June to late August 2011 (Proposed Transaction), Robinson was almost exclusively involved in his capacity as Group Legal Director. The only tasks he undertook in his capacity as Company Secretary in connection with the Proposed Transaction were to assist with the organisation and minuting of Sage Board meetings at which the Proposed Transaction was considered. 28. The financial and commercial teams of Sage did not then, and do not now, have access to Robinson's electronic files or his emails. His physical files are also stored separately from those of Sage's financial and commercial teams. 77 In relation to the specific documents or communications, Mr Robinson has inspected each of the Relevant Robinson Documents and advised Mr Blazer of the "main reason" he created the document or sent or received the communication. That evidence, in relation to the Relevant Robinson documents is as follows: Document 132, 134-139, 144, 146, 149, 152, 156, 157 and 159 comprise emails and attachments which Mr Robinson sent in his capacity as Group Legal Director. The main reason he sent those emails was to provide legal advice to Sage or to obtain information or instructions so that he could provide legal advice to Sage in respect of the Proposed Transaction: Blazer 1 at [39]. Document 154 comprises a handwritten note Mr Robinson prepared in his capacity as Group Legal Director. The main reason he prepared that note was so that he could provide legal advice to Sage in respect of the preparation of the proposed Share Sale Agreement on 18 August 2011: Blazer 1 at [41]. Document 140 and document 143 comprise emails and their attachments which Mr Robinson sent in his capacity as Group Legal Director. The main reason he sent those emails was to provide, or so that Sage could obtain, legal services relating to legal proceedings that were threatened by Archer on or after 18 August 2011: Blazer 1 at [42]. Documents 147, 148 and 153 comprise emails and their attachments which Mr Robinson received. They contain information which had been requested to enable Mr Robinson or Sage's external lawyers to provide legal advice to Sage in respect of the Proposed Transaction: Blazer 1 at [44]. Document 133 comprises an email and its attachment which Mr Robinson received. Mr Robinson believes it is a request from Deutsche or Sage executives that legal advice be given to Sage: Blazer 1 at [45]. Documents 131, 138, 141, 142, 144, 148, 149, 150, 151, 152, 153, 155 and 158 comprise emails and their attachments which Mr Robinson sent in his capacity as Group Legal Director, or received and which contained legal advice which he, or Sage's external lawyers, gave Sage in connection with the Proposed Transaction: Blazer 1 at [46]. Document 158 is also said to be an email sent by Mr Robinson as Group Legal Director to Messrs Longstaff of Deutsche. Mr Robinson's main reason for sending it was to forward legal advice which Sage had received from its external lawyers to Longstaff, so that Longstaff was informed of that advice, as those legal issues had the potential to impact the commercial negotiations in respect of which Deutsche was advising Sage: Blazer 1 at [49]. Document 141 is also said to be an email that Mr Robinson received. He believes that it was sent so that Sage could obtain legal services relating to legal proceedings that were threatened by the applicants: Blazer 1 at [50]. Document 145 comprises an email sent by a solicitor within Sage's legal department who worked under Mr Robinson's supervision to executives of Sage and Mr Robinson. Mr Robinson believes that the main reason it was sent was so that Sage could receive legal advice in respect of the Proposed Transaction: Blazer 1 at [51]. 78 Sage's submission is that, given the evidence in relation to Mr Robinson's qualifications and role and responsibilities at Sage, both generally and in relation to the Proposed Transaction, there is no basis for finding that Mr Robinson lacked the independence necessary to attract legal professional privilege. 79 The applicants' submission is that the evidence relating to Mr Robinson's role and responsibilities at Sage showed that his role extended beyond the role of giving independent legal advice to Sage. It included a managerial role, as well as a role as Group Secretary. It follows, so it is submitted, that it should not be accepted that in performing his role as Group Legal Director, Mr Robinson had the necessary independence, and was at all times acting in a capacity of independent legal adviser. 80 In seeking to demonstrate that Mr Robinson's role extended beyond the role as independent legal adviser, the applicants point to a number of communications involving Mr Robinson which have been discovered by Sage without any privilege claim. It is apparent from Mr Robinson's statement of intended evidence that Sage intends to rely on those documents at trial. In very general terms, these communications comprise either emails to Mr Robinson updating him on the state of the negotiations between the parties or in relation to financing (see, for example, Tab 8 of Exh RGH 4), or emails between Mr Robinson concerning whether the sale to Sage would be a class 1 transaction for the purposes of the United Kingdom listing laws (see, for example, Tabs 3, 4 and 5 of Exh RGH 4). As already noted, Deutsche's retainer included providing advice about the listing rules. 81 The applicants rely on these communications in two ways. First, it is contended that these communications show that Mr Robinson was not at all times acting as an independent legal adviser in relation to the Proposed Transaction. They show that he also performed a management or administrative role. Second, it is contended that the disclosure of these documents gives rise to a waiver of privilege in relation to the Relevant Robinson Documents. It is submitted that it would be inconsistent with the maintenance of privilege in respect of those communications for Sage to contend, on the one hand, that everything Mr Robinson did in relation to the Proposed Transaction was privileged, and on the other, seek to deploy other communications involving Mr Robinson.

[16]

Consideration 82 I reject the applicants' challenge to Sage's privilege claim in relation to the Relevant Robinson Documents on the basis that Mr Robinson lacked independence. To the extent that there is a separate requirement, in the case of privilege claims involving in-house lawyers, to demonstrate that the lawyer or his or her advice are independent, the evidence adduced by Sage makes out the requisite independence on the part of Mr Robinson. Relevant in this regard is the evidence that demonstrates Mr Robinson's lengthy legal career as a solicitor, the fact that he remains admitted as a solicitor with a current practising certificate in the United Kingdom, the professional nature of Mr Robinson's duties and responsibilities as head of Sage's legal team, the fact that as Group Legal Director Mr Robinson reports directly to the Chief Executive Officer of Sage and the fact that Mr Robinson's files, both electronic and physical, are stored separately to and are not accessible by the financial and commercial teams at Sage. 83 It may be accepted that the evidence shows that in relation to the Proposed Transaction, Mr Robinson's role extended in some respects beyond that of in-house legal adviser. However, the mere fact that Mr Robinson also had responsibilities as Company Secretary, and that some aspects of his position as Group Legal Director may have involved administrative and managerial functions, does not mean that, when he was consulted in his capacity as legal adviser, Mr Robinson relevantly lacked independence. Nor does it mean that legal professional privilege cannot be claimed in relation to any communication involving Mr Robinson. Nor does the mere fact that Mr Robinson may have engaged in communications in relation to the Proposed Transaction in respect of which privilege is not claimed mean that Mr Robinson lacked independence, or that privilege cannot be claimed in relation to any other communications involving Mr Robinson. All that the existence of these other communications shows is that not all communications relating to the Proposed Transaction that Mr Robinson was involved in were for the dominant purpose of Sage seeking or obtaining legal advice. 84 The finding that Mr Robinson does not relevantly lack independence, however, does not entirely resolve Sage's privilege claims in relation to the Relevant Robinson Documents. The fact that Mr Robinson's role and responsibilities extended beyond acting in the capacity of legal adviser, and the fact that he engaged in communications relating to the Proposed Transaction that did not involve seeking or giving legal advice, means that it is necessary to analyse precisely in what capacity Mr Robinson sent or received the relevant communications in respect of which privilege is claimed, particularly where the claim is that Mr Robinson was providing legal advice to Sage. In respect of those communications, it is only where the communication was sent or received in Mr Robinson's capacity as Sage's legal adviser that the communication can be privileged. 85 The evidence is that Mr Robinson's involvement in the Proposed Transaction was "almost exclusively" in his capacity as Group Legal Director and that the tasks he undertook in his capacity as Company Secretary were limited to organising and minuting Sage's audit meetings: Blazer 1 at [27]. It does not necessarily follow, however, that every communication sent to or sent by Mr Robinson in relation to the Proposed Transaction was in Mr Robinson's capacity as legal adviser. Nor does it follow that every such communication was for the dominant purpose of obtaining or providing legal advice. That appears to be confirmed by the existence of the non-privileged communications between Mr Robinson and Deutsche. 86 It is not, however, Sage's case that every communication involving Mr Robinson in relation to the Proposed Transaction was in Mr Robinson's capacity as legal adviser, even if Mr Robinson's involvement in the Proposed Transaction was "almost exclusively" in his capacity as Group Legal Director. The relevant question is whether the communications involving Mr Robinson that are the subject of the privilege claim were for the dominant purpose of Sage seeking or obtaining legal advice. In that respect, weight must be given to the unchallenged evidence, in relation to each of the Relevant Robinson Documents, that Mr Robinson created, sent or received the document or communication in his capacity as Group Legal Director for the main purpose of seeking or providing legal advice (or in a few cases for the main purpose of Sage seeking legal services in relation to prospective litigation). It may be accepted that this evidence is not only hearsay in nature (being Mr Blazer's evidence on information and belief), but is also in fairly general and, to an extent, formulaic terms. In my opinion, however, this evidence is nevertheless sufficient to prove that Mr Robinson was acting in his professional capacity as Sage's legal adviser when he created, sent or received each of the Relevant Robinson Documents, that accordingly he was relevantly independent for the purpose of the privilege claim, and that the dominant purpose test is satisfied in respect of each document. 87 As was the case in relation to the challenge to the Deutsche communications, I was invited by the applicants to inspect some or all of the Relevant Robinson Documents "if necessary" to determine the validity of the privilege claims. Despite the fact that, for the reasons I have given, there is no basis for finding that Mr Robinson relevantly lacked independence, and there is evidence capable of satisfying the dominant purpose test in relation to the documents, given the challenge to the claims I nevertheless formed the view that it was appropriate for me to inspect the documents. 88 In examining the documents, however, I again took into account the observations of Allsop J in DSE in relation to both the broad, practical and common sense approach that should be taken to the concept of legal advice in this context, and the fact that in complex commercial transactions involving legal advisers, there is often no sharp division between what is advisory and what is merely administrative. In my opinion, this latter point is particularly apposite where documents or communications involving an in-house lawyer in the context of a complex transaction are examined for the purpose of ascertaining whether a particular communication attracts advice privilege. Where an in-house lawyer is involved in providing advice and seeking advice from external lawyers in a complex commercial transaction, it may be difficult to disentangle the in-house lawyer's purely legal function from other functions performed by the lawyer in relation to the transaction. As Tamberlin J put it in Seven Network (at [38]): I am cognisant of the fact that there is no bright line separating the role of an employed legal counsel as a lawyer advising in-house and his participation in commercial decisions. In other words, it is often practically impossible to segregate commercial activities from purely "legal" functions. The two will often be intertwined and privilege should not be denied simply on the basis of some commercial involvement … In many circumstances where in-house counsel are employed there will be considerable overlap between commercial participation and legal functions and opinions. 89 The particular role or function being performed by the in-house lawyer in these circumstances may not be readily apparent or obvious from the face of the document. Where that is so, due regard and weight must be given to the evidence, as general as it might be, in relation to the purpose for which the document was created, or the communication sent or received. 90 Having inspected and considered the contents of the Relevant Robinson Documents, in the context of the evidence concerning Mr Robinson's role and responsibilities and the evidence concerning the nature and purpose of the documents or communications, I uphold the legal professional privilege claims in relation to all of the documents other than document 145. It is unnecessary to provide detailed reasons for upholding the privilege claims in relation to each individual document. Suffice it to say that having considered the contents of each document, together with the evidence concerning Mr Robinson' relationship with Sage and the purpose of each document, I am satisfied that the dominant purpose test is satisfied in relation to each of the documents. 91 In relation to document 145, whilst this email was authored and sent by a solicitor in Sage's legal department, it does not (and is not said to) contain legal advice. It is sent to two employees or officers of Sage and copied to Mr Robinson. The evidence is that Mr Robinson "believes" that the main reason it was sent was so that Sage could receive legal advice. The basis of that belief is unclear. The most that can be said from the document itself is that the in-house solicitor is providing an update to the Sage executives about an aspect of the current proposal in relation to the acquisition structure "as a matter of courtesy." Whilst the email does invite the recipients to contact either the author or Mr Robinson if they have any "comments/questions", in my opinion that invitation does not provide a proper basis for concluding that the dominant purpose of the communication was obtaining or providing legal advice. 92 In relation to waiver, I reject the applicants' contention that the disclosure of some communications involving Mr Robinson that concern the topic of the UK listing rules effects a waiver of any privilege attaching to other communications involving Mr Robinson. The conduct of Sage in disclosing communications involving Mr Robinson which are not said to attract privilege is not inconsistent with the maintenance the confidentiality which is said to attach to other documents in respect of which privilege is claimed: Mann v Carnell (1999) 201 CLR 1 (Mann) at [28]-[29]. That is so despite the common subject matter of some of the communications. In my opinion the applicants' contentions concerning waiver are based on a false or erroneous premise; namely, that Sage contends that "Mr Robinson's role in the transaction (other than in respect of company secretarial matters) was exclusively as an in-house legal adviser and one entitled to the protection of privilege": Applicants' Outline of Submissions at [64]. It is not correct to characterise Sage's privilege claims as amounting to a claim that every communication Mr Robinson sent or received in relation to the Proposed Transaction was privileged. Whilst Sage contends that Mr Robinson's involvement in the proposed acquisition was "almost exclusively" confined to his capacity as Group Legal Director, this does not amount to a claim that every communication to which Mr Robinson was a party was sent or received for the dominant purpose of obtaining or providing legal advice. The disclosure of communications that are not claimed to be privileged (presumably on the basis that they do not satisfy the dominant purpose test) is not inconsistent with the maintenance of confidentiality of communications in respect of which a privilege claim is made. 93 As for the applicants' contention that the deployment of these communications in evidence by Sage, though Mr Robinson, effects a waiver of any privilege attaching to the Relevant Robinson Documents, that will, or may, ultimately be a matter for the trial judge. These documents have not yet been tendered. Whilst they are referred to in a statement of anticipated evidence of Mr Robinson that has been served, it may be that they are ultimately not tendered or relied on by Sage at trial. Even if they are, it will be a matter for the trial judge to consider the context in which they are tendered and whether the circumstances of that tender give rise to the relevant inconsistency necessary to give rise to a waiver. It is, in the circumstances, premature to decide this point at a pre-trial stage.

[18]

Evidence and submissions 96 The applicants' case is that Deutsche's dual role in relation to the transaction taints all documents that were disclosed to it, not just documents disclosed to it in its role as potential financier. The relevant inconsistency is said to arise solely from the fact that Deutsche's role as financier meant that it was also a counter-party to Sage with its own interests in the transaction. In their written submissions, the applicants also point to the fact that there is no express obligation of confidentiality in Deutsche's engagement letter. It is also submitted that the evidence relied on by Sage in relation to Deutsche being under an obligation to maintain confidentiality is limited to hearsay evidence of the subjective understanding of relevant persons, as opposed to evidence of facts giving rise to such an obligation. 97 The applicants' submissions in relation to waiver are put on a global or general level. No submissions are directed to individual documents and it is not suggested that the inspection of any documents by the Court would assist in any way in resolving this question. 98 Sage submits that the applicants have not discharged their onus of demonstrating that the disclosure of documents to Deutsche gives rise to a waiver. It submits that it can be readily inferred that Deutsche, as a member of the "deal team" - the group of advisers engaged by Sage to assist with its evaluation, negotiation and financing of the Proposed Transaction - was under an obligation of confidentiality. Any disclosure to it in that context was a confidential disclosure for a limited purpose and would therefore not result in a waiver. 99 Sage accepts that Deutsche also had a role as potential financier in relation to the Proposed Transaction, but submits that that fact does not have the consequence that privilege is waived in respect of every communication with, or disclosed to, Deutsche. At most, there could only be a waiver in respect of documents disclosed to Deutsche in its capacity as financier.

[19]

Consideration 100 The applicants carry the onus of demonstrating waiver: Betfair at [54]. That onus has not been discharged. The evidence does not establish that the conduct of Sage in causing or allowing otherwise privileged documents to be disclosed to Deutsche affects a waiver because that conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Rather, in my opinion, the evidence supports the conclusion or inference that the documents were disclosed to Deutsche for a limited purpose and Deutsche owed an obligation to Sage to maintain confidence in relation to all documents and communications sent to it in its capacity as Sage's financial adviser in relation to the Proposed Transaction. That is so despite the fact that there is no express obligation of confidentiality in Deutsche's engagement letter. In my opinion, there is no evidence, or basis to conclude, that the obligation of confidence owed by Deutsche was in any way affected by the fact that Deutsche was also part of the proposed lending syndicate, particularly in relation to documents sent to Deutsche in its capacity as part of Sage's deal team. 101 The relationship between Sage, Deutsche and Sage's other professional advisers in relation to the Proposed Transaction is not dissimilar to the relationship between the parties and the circumstances in DSE. In those circumstances, which similarly involved a complex commercial transaction and multiple advisers, Allsop J had no difficulty inferring an obligation of confidence in respect of communications between the relevant client and its advisers, including a large and well-known investment bank and a firm of lawyers, despite there being no express term to this effect in any of the retainer letters. Allsop J said (at [22]): In a transaction of this kind, the clients would expect aspects of what was done and not done that might possibly be of significance to be considered by, and discussed between and among, the experienced lawyers and the experienced investment bankers … Given the nature of the subject matter, the experience of the advisers involved and a lack of aversion to any formal terms as to how the parties (clients, lawyers and investment bankers) would inter-react and communicate, I have no difficulty inferring that there was a clear obligation of confidence owed to the [clients] … 102 These observations of Allsop J apply with equal force to the facts in this matter. The same inference is available given the evidence of the relationship between the parties here. The inference that Deutsche was under an obligation of confidence in respect of communications or documents disclosed to it is also supported by evidence that a number of the key persons at Sage, Deutsche and A & O all understood that Deutsche was obliged to maintain the confidentiality of communications connected with the Proposed Transaction: Blazer 1 at [35]-[37] (in relation to Mr Robinson) and [61] (in relation to Mr Reede of A & O); and Blazer 2 at [14] (in relation to Mr Longstaff of Deutsche). None of this evidence was challenged by the applicants, though it is criticised as being hearsay and not evidence of facts that establish an obligation of confidence. Nevertheless, in my opinion, the understanding of the parties in relation to the confidential nature of the relationship between the parties is relevant to, and capable of supporting, the inference of an obligation of confidence. There is, in any event, evidence that Deutsche had received express instructions from Sage to maintain confidentiality throughout the Proposed Transaction: Blazer 2 at [14(d)]. 103 The evidence also supports the conclusion or inference that each of the relevant communications or documents was sent or disclosed to Deutsche for a limited purpose relating to the Proposed Transaction. That is an inference that is available from the general evidence in relation to the relationship between Sage, Deutsche and Sage's other advisers, as well as the specific evidence in relation to each of the relevant documents. That evidence is not challenged. Nor do the applicants' point to any evidence to the contrary. 104 In relation to the applicants' main point, that Deutsche had a dual role, whilst Sage does not take issue with the fact that Deutsche was also a potential financier in relation to the transaction, there is a paucity of evidence in relation to the nature or implications of this additional role. There is, in particular, no evidence that any of the Deutsche officers who sent or received any of the relevant communications or documents were associated in any way with Deutsche's involvement as financier. Nor is there any evidence that any of the documents sent to Deutsche were sent to it in its capacity as financier, as opposed to financial adviser. Indeed, the specific evidence in relation to each document is to the contrary. 105 Whilst the applicants' submissions in relation to waiver are put on a global basis and do not descend to the detail of individual documents, there appears to be only three documents that were created by, or sent or copied to, Norton Rose, the lawyers who were apparently acting for Deutsche in relation to its potential provision of finance to Sage in relation to the Proposed Transaction. Document 161 is a memorandum authored by three persons from Norton Rose. The recipients of that document were two officers at Deutsche. The evidence in relation to this document indicates, however, that this was a document that Mr Robinson received from Mr Longstaff at Deutsche so that Mr Robinson or A & O could provide legal advice to Sage in relation to the Proposed Transaction: Blazer 1 at [44], [46]; Blazer 2 at [18]. 106 Document 162 is an email authored by Mr Price from Deutsche and sent to Mr Robinson and others at Sage. It was copied to officers at Deutsche, A & O and Norton Rose. The evidence in relation to this document is that it is a confidential email that Mr Price sent when performing work in relation to the Proposed Transaction. Mr Price understood that in sending the email he was acting pursuant to Deutsche's engagement as financial adviser to Sage on the Proposed Transaction and the reason he sent the email was to communicate some legal advice from A & O to Sage, A & O and Norton Rose: Blazer (29/8/2013) at [26]; see also Blazer 1 at [67] and Blazer 4 at [10]. 107 Document 163 is an email authored by Mr Cranfield of A & O. It was sent to various people at A & O, Deutsche and Sage and copied to Norton Rose. The evidence in relation to this document is that it was sent by Mr Cranfield pursuant to A & O's retainer in connection with the Proposed Transaction and the reason he sent it was to provide legal advice to Sage in connection with the Proposed Transaction: Blazer 2 at [29]; see also Blazer 1 at [43] and [67]. 108 In light of this evidence, the mere fact that three documents were sent or copied to Norton Rose does not mean that there has been conduct inconsistent with the confidentiality that the privilege otherwise attaching to these documents or communications is designed to protect. The available inference is that they were sent to Sage's advisers and a third party otherwise associated with the Proposed Transaction for a limited purpose and on a confidential basis. 109 There is in my opinion no basis for concluding that the disclosure of communications or documents to Deutsche effected a waiver of privilege otherwise attaching to those communications or documents simply because Deutsche had another role in relation to the Proposed Transaction beyond being Sage's financial adviser. That fact alone does not establish any relevant inconsistency with the maintenance of confidentiality of the documents. Indeed, the evidence earlier referred to supports the contrary conclusion.

[21]

Associate: Dated: 24 October 2013 SCHEDULE 1 Second Applicant: ARCHER CAPITAL 4B PTY LTD AS TRUSTEE FOR THE ARCHER CAPITAL TRUST 4B Third Applicant: ARCHER CAPITAL 4C PTY LTD AS TRUSTEE FOR THE ARCHER CAPITAL TRUST 4C Fourth Applicant: HARBOURVEST PARTNERS 2007 V-DIRECT B.V. Fifth Applicant: HARBOURVEST INTERNATIONAL PRIVATE EQUITY PARTNERS V-DIRECT FUND L.P. Sixth Applicant: HARBOURVEST PARTNERS 2007 DIRECT FUND L.P. Seventh Applicant: LENTESCO PACKAGING PTY LIMITED IN ITS CAPACITY AS TRUSTEE OF THE MYOB UNIT TRUST Eighth Applicant: SQUADRON ASIA PACIFIC II NV Ninth Applicant: SQUADRON NE ASIA HOLDINGS II LIMITED Tenth Applicant: ADAM FERGUSON Eleventh Applicant: ALEXANDER BRUCE CAMERON IN HIS CAPACITY AS TRUSTEE OF THE HIGHLAND INVESTMENT TRUST Twelfth Applicant: ALLISON WATTS Thirteenth Applicant: AMBA DARLA HOLDINGS PTY LIMITED ACN 136 023 517 IN ITS CAPACITY AS TRUSTEE OF THE LA FAMILIA MUNOZ TRUST Fourteenth Applicant: ANDREW BIRCH Fifteenth Applicant: ANDREW BIRCH AND CHERYL SING IN THEIR CAPACITY AS TRUSTEES OF THE BIRCH SING SUPERANNUATION FUND ABN 85 093 663 531 Sixteenth Applicant: BIGGLES ENTERPRISES PTY LTD AS TRUSTEE FOR THE KATZEFF FAMILY TRUST ABN 64 417 131 510 Seventeenth Applicant: BIRCHSING PTY LTD ACN 075 688 934 IN ITS CAPACITY AS TRUSTEE OF THE BS3 TRUST Eighteenth Applicant: CHRISTOPHER TRACEY Nineteenth Applicant: DOMINIC O'HANLON Twentieth Applicant: DOMINIC O'HANLON IN HIS CAPACITY AS TRUSTEE OF THE O'HANLON SUPERANNUATION FUND Twenty First Applicant: ELENA GREENWELL Twenty Second Applicant: ESTELA RODRIGUEZ Twenty Third Applicant: FERGATRON CONSULTING PTY LIMITED ACN 128 273 389 IN ITS CAPACITY AS TRUSTEE OF THE FERGUSON CONSULTING FAMILY TRUST Twenty Fourth Applicant: GARRY JOHN DOWD & JULIE ANNE DOWD IN THEIR CAPACITY AS TRUSTEES OF THE GAJU SUPERANNUATION FUND Twenty Fifth Applicant: GIOVANNA MARIA OSTACCHINI Twenty Sixth Applicant: GJED PTY LTD ACN 125 789 111 IN ITS CAPACITY AS TRUSTEE OF THE DENT & EDMEADS SUPERANNUATION FUND Twenty Seventh Applicant: GRANT LINGWOOD-SMITH Twenty Eighth Applicant: IAN BOYLAN Twenty Ninth Applicant: INFOTREK INVESTMENTS PTY LIMITED ACN 136 379 336 IN ITS CAPACITY AS TRUSTEE OF THE AD STEVENSON FAMILY SUPER FUND Thirtieth Applicant: JEAN MULLIGAN Thirty First Applicant: JEMATE PTY LIMITED ACN 114 290 845 IN ITS CAPACITY AS TRUSTEE OF THE JST SUPERANNUATION FUND Thirty Second Applicant: JGDE PTY LIMITED ACN 136 366 393 IN ITS CAPACITY AS TRUSTEE OF THE DENT & EDMEADS FAMILY TRUST Thirty Third Applicant: JOHN MOSS Thirty Fourth Applicant: JOHN RICHARD MOSS AND ELAINE JANE MOSS AS TRUSTEES OF THE MOSS FAMILY TRUST Thirty Fifth Applicant: JULIE STELLA TASSONE Thirty Sixth Applicant: KAREN O'HANLON Thirty Seventh Applicant: KEVIN RAWLINGS Thirty Eighth Applicant: LISA BELL Thirty Ninth Applicant: MATTHEW MULLIGAN Fortieth Applicant: MATTHEW JAMES TOMLINSON Forty First Applicant: MYOB FINANCE 2 PTY LTD Forty Second Applicant: PAUL GREENWELL Forty Third Applicant: SCOTT GARDINER Forty Fourth Applicant: SHOWER INNOVATIONS PTY LIMITED ACN 093 605 228 IN ITS CAPACITY AS TRUSTEE OF THE FINNIN SUPERANNUATION FUND Forty Fifth Applicant: SIMON MARTIN Forty Sixth Applicant: SIMON RAIK-ALLEN Forty Seventh Applicant: SUZANNE DAMMS Forty Eighth Applicant: TIMOTHY MOLLOY Forty Ninth Applicant: TIMOTHY REED Fiftieth Applicant: TREVOR FAIRWEATHER AND NICOLE FAIRWEATHER IN THEIR CAPACITY AS TRUSTEES OF THE FAIRWEATHER FAMILY TRUST Fifty First Applicant: TREVOR FAIRWEATHER IN HIS CAPACITY AS TRUSTEE OF THE FAIRWEATHER SUPERANNUATION FUND

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Judgment (21 paragraphs)

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Cases Cited (22)