(c) Mr Sobey also received similar trailing interest payments of the same order on funds advanced to the Scheme by a group of investors known as the FS Investments Group (Carmelo Falanga and Guiseppe Falanga appear to have dealt with Mr Mercorella on behalf of the FS Investment Trust) during the period their funds were available to the Scheme.
68 Mr Sobey through his accountants prepared and maintained interest summaries and investor records in relation to the investors, separated into the Sobey Group and the FS Investment Group. Those records required substantial recalculation when Mr Mercorella determined in about November 2004 that interest on advances should be paid quarterly instead of monthly. The moneys introduced to the Scheme through those two groups led to Mr Sobey receiving very substantial trailing interest payments on a monthly basis from Mr Mercorella over a lengthy period, as well as interest on his own advances.
69 A moments thought by Mr Sobey (and others) would have indicated how unlikely the Scheme was to succeed, at least with conventional investments. The monthly interest commitment to the investors (assuming it was similar to that paid to Mr Sobey on his advances), the trailing interest payments, and some fees or expenses of Mr Mercorella would require a return on investment of some 70-80 per cent per annum if the capital were to be preserved and not used to pay interest.
70 In about November 2004, TP were engaged by Mr Sobey through his accountants to advise about the GST implications of the existing structure of advances to Mr Mercorella for the Scheme and the existing arrangements for payment of trailing interest. In the course of so advising Mr Sobey, Ajay was incorporated on 7 February 2005 with Mr Sobey as its sole director, secretary and shareholder. TP also prepared revised loan agreements, which (through the accountant for Mr Sobey) were apparently completed with the names of the individual investors and executed. Those loan agreements foreshadowed the transactions referred to below, as they interposed the partnership of Ajay and Opey as the borrowing intermediary between the lenders and Mr Mercorella and the Scheme.
71 As noted earlier, on the evidence, Mr Mercorella determined in about November 2004 to pay interest on moneys advanced to him for the Scheme quarterly instead of monthly. Mr Sobey was unhappy with that new arrangement. That time coincides also with Mr Sobey first consulting TP. He also became aware that by early 2005, some trailing interest payments to which he was entitled were belated. He said in his examination that in March or April 2005 he learned that there was 'some significant shortfall', and he returned from overseas earlier than he had planned because of those problems. He arranged the payment to which some other investors were entitled of certain interest through AS Investments Pty Ltd because 'people were under pressure and I felt responsible' because he had introduced those people to Mr Mercorella.
72 Mr Sobey said that about that time, he got legal advice to 'document the security issues that had been promised for some time', and that he should do so quickly. He recognised that, at that point, Mr Mercorella was unable to pay interest and repay the loans, and became 'fed up' with his excuses. He was aware by May 2005 that Mr Mercorella had been lying about his available assets, and it was difficult to ascertain the value of the security that was being offered.
73 Mrs Sobey in her examination stated that the need to obtain the promised security was becoming more urgent from late 2004, following the change in the interest payment regime.
74 ACN 114 was incorporated on 23 May 2005. Its sole director and shareholder is Mrs Sobey.
75 A 'Priority Relationship and Security Trust Deed' (the Deed) was prepared dated 2 June 2005. It recites that on 31 January 2004 nine of the Scheme companies agreed to give security to Mr Sobey, Mrs Sobey, AS Investments Pty Ltd (a company of which Mr Sobey was sole director and shareholder), Sobey Pty Ltd, WWW.Invest Pty Ltd, Ilieva Pty Ltd and to Carmelo Felanga, Guiseppe Felanga and Mr Sobey as Trustees for The FS Investment Unit Trust (together 'the mortgagees') to secure advances made available by them to Ajay and Opey in partnership. The security was a fixed and floating charge over those Scheme companies' assets and undertakings, granted to the 'Security Trustee', namely ACN 114. ACN 114 by that Deed declared that it held the security and all moneys received under the security on trust for the mortgagees. The trust was named the Mercorella Security Trust.
76 That Deed also established a priority ranking of the mortgagees in respect of monies thereafter received (after costs of the Security Trustee) as follows: Mr Sobey, AS Investments Pty Ltd, Mrs Sobey, Sobey Pty Ltd, WWW.Invest Pty Ltd, Ilieva Pty Ltd, and the trustees of The FS Investment Unit Trust.
77 In his evidence at his examination, Mr Sobey said he did not know of the partnership between Ajay and Opey. He also said that Ajay had not borrowed any moneys in 2005 (contrary to the Deed recital) and that all borrowings for the Scheme were made by Mr Mercorella. Mr Sobey's accountant was, however, aware of the partnership, and prepared financial statements and tax returns for it. He said that no moneys had been advanced to the partnership, and that all funds advanced went directly to Mr Mercorella for the Scheme. I have not had the financial statements of the partnership drawn to my attention, but the questioning of the accountant is upon the basis that it had assets of some $18 million by way of loan funds.
78 The Deed has been executed by Mr Mercorella as a director of each of the Scheme companies, by Ajay apparently through Mr Sobey as director, and by ACN 114 apparently through Mrs Sobey as director.
79 It is open to infer, on the evidence, that the recitals or certain of them to the Deed are a sham, and that no moneys were advanced to the partnership of Ajay and Opey in June 2005 or at all, and so that no agreement was made by the Scheme companies on 31 January 2004 to grant security to the mortgagees for advances made by them to the Ajay/Opey partnership. I think there are reasonable grounds for drawing that conclusion, and for the purpose of the present application I do so.
80 Charges in favour of ACN 114 over the assets and undertaking of each of the Scheme companies were granted and lodged and 'provisionally registered' on 3 June 2005, except for that granted by PGLE Pty Ltd which was first provisionally registered on 14 June 2005. They were 'perfected', that is registered without provisional status on 31 August 2005 when the Certificate of Entry of a Charge was given by the plaintiff. Mr Nicol points to the fact that TP's engagement to address the enforceability of the charges commenced some weeks before 31 August 2005.
81 Mr Caldicott was billed by TP in the period June, July and August 2005 for quite substantial work on behalf of the Sobey interests in identifying assets of the Scheme companies and drawing the security documentation. Mr Sobey was, on the evidence, involved in giving instructions on those matters. TP (Mr Tanti) was told by Mr Sobey that it was necessary to obtain the securities as quickly as possible.
82 The advice given by TP, and the work it carried out, from 19 July 2005 was in the context of a media release of ASIC of that day, a copy of which is on one of the TP files. The media release refers to the investigation into whether Mr Mercorella had been operating unlawfully a managed investment scheme, and refer to its current proceedings to appoint a receiver of the assets of Mr Mercorella and of the Scheme. It referred to the conduct of the second defendant also under investigation.
83 Apparently in the light of that media release, TP were also engaged by Mr Sobey and ACN 114 to give advice about the enforceability of the securities obtained shortly beforehand. The legal practitioner from TP who undertook that work is shown to have commenced doing so at least by 11 August 2005.
84 In submissions on behalf of the Sobey interests, no differentiation was made between the positions of Mr Sobey, Mrs Sobey or ACN 114. I shall not therefore do so, but use the collective description except where it is otherwise necessary, in making my findings (in the sense referred to above).
85 The evidence demonstrates, in my view, that there are reasonable grounds for believing that:
(a) by late 2004, the Sobey interests had advanced substantial funds to Mr Mercorella for the purposes of the Scheme and had also procured the Sobey Group and the FS Investments Group to do so;
(b) the Sobey interests received monthly interest on their advances, as well significant monthly trailing interest payments on the moneys advanced by the Sobey Group an the FS Investment Group;
(c) none of the advances were secured, although Mr Mercorella had promised to provide security;
(d) when Mr Mercorella apparently unilaterally in November 2004 changed the interest payment arrangement from monthly to quarterly, the Sobey interests became concerned about his capacity to continue to maintain those payments and to repay the advances and first engaged TP for advice, including about getting security for their advances;
(e) the Sobey interests' concern progressively increased over the early months of 2005, and by January 2005 their legal advice had extended to 'restructuring' the loans through a partnership of Ajay and Opey, and so that by at least April 2005 Mr Sobey in particular was doubtful that interest payments could be maintained or that the advances could be repaid;
(f) investigations by TP revealed that there was difficulty in identifying the assets of the Scheme or of the Scheme companies, and that Mr Mercorella may have misled them about those matters;
(g) in that context, ACN 114 was incorporated and then in early June 2005 the Deed was created (referring to the partnership between Ajay and Opey as the recipient of the advances rather than Mr Mercorella), and the various charges over the assets of the Scheme companies were granted;
(h) the arrangement which the Deed records, namely the advances having been made to a partnership of Ajay and Opey and by them to Mr Mercorella is a sham;
(i) the priority which the Deed provides for had the effect of preferring the Sobey interests over the interests of other persons or entities who had advanced money to Mr Mercorella for the Scheme;
(j) the grant of the securities to ACN 114 as trustee for The Mercorella Security Trust secured the assets of the Scheme companies and of Mr Mercorella to ACN 114 in support of the advances so that the priority which the Deed effected would be given effect;
(k) by the time of the Deed and the grant of the various securities, the Sobey interests had reasonable cause to believe and believed that Mr Mercorella and the Scheme companies were unable to repay the advances as and when they fell due, as well as being unable to pay interest and trailing interest on the various advances as previously agreed.
86 In my judgment, there is a prima facie case that the purpose of the Deed and of the grant of the various securities was to advantage the Sobey interests to the detriment of the other creditors of Mr Mercorella and of the Scheme. And, in my judgment, those transactions were entered into when the Sobey interests knew of the financial difficulties of Mr Mercorella and of the Scheme.
87 The issue then becomes whether, by reason of that conduct, legal professional privilege of the Sobey interests (which might otherwise enure in the documents in PT.1, PT.2 and PT.4) does not exist, to the extent that those documents were brought into existence in furtherance of that conduct in the circumstances.
88 My 'findings' negate the first contention of the Sobey interests that the evidence does not show, on a prima facie basis, that their dealings with the TP up to about August 2005 were for any identifiable purpose. There is prima facie evidence that the purpose was to secure to the Sobey interests, by the debt restructuring through the Deed, and by the grant of the securities, a position of advantage over the other lenders to Mr Mercorella for the Scheme in circumstances where Mr Mercorella and the Scheme were unlikely to be able to meet their debts, including any interest payments. In short, the prima facie case is that Mr Sobey and ACN 114 knowingly obtained the securities from Mr Mercorella and the Scheme companies to obtain an unfair advantage over other creditors, when they were aware of the likelihood that Mr Mercorella and the Scheme companies could be unlikely to be able to meet their debts as and when they fell due.
89 That conclusion flows even though, as Mr Sobey said in his examination, Mr Mercorella had offered the Sobey interests security some time beforehand. No such security had earlier been given.
90 Mr Nicol also contends that, on the evidence, there is a prima facie case that Mr Sobey and ACN 114 participated in and acted in furtherance of the illegal Scheme itself. The participation is said to be evidenced mainly by the partnership between Ajay and Opey as the vehicle for advances to Mr Mercorella and the Scheme, and the Deed and the grant of the securities within the structures it established, to endeavour to secure the continuance of the Scheme, and hence the continuance of Mr Sobey's entitlement to trailing interest payments.
91 I do not think there is a prima facie case made out on that basis. As I have said, the evidence satisfies me that by about April 2005, the Sobey interests were aware that the Scheme was in severe financial difficulties. They were generally aware of the type of interest commitments it had on advances. The Sobey interests did not depose to a knowledge of its assets, so they could reasonably think that some remarkable income stream could emerge from them. They must therefore have realised that the Scheme would be very unlikely to be able to continue, and to meet its ongoing liabilities without further advances. The Sobey interests are not shown to have procured further funding after that time. Mr Sobey said he arranged payment of certain interest obligations of Mr Mercorella, as he felt he should do so because he introduced the investor. I suspect more probably that he wished to hold the status quo while his position became secured, but it does not matter. I do not think that those payments, or the transactions which culminated in the Deed and the grant of the securities amounted to participating in the Scheme or acting in furtherance of it.
92 The question then is whether the conduct referred to in [85], as a matter of public policy, results in there being no legal professional privilege in documents recording communications for the purposes of obtaining or providing legal advice, or documents of legal advisers for the purpose of giving that advice, when that advice was sought for the purpose of or in furtherance of that conduct.
93 I have discussed above the difficulty in deciding on which side of the line drawn by public policy such conduct falls.
94 In Gartner v Carter; In the Matter of Gartner Wines Pty Ltd [2004] FCA 258, Lander J concluded that communications between a client and a legal adviser for the purpose of the client putting assets beyond the reach of the legitimate claims of secured creditors is a 'fraud on justice'. His Honour at [130] said that such a purpose 'is a fraud on the creditor and there is no public interest in protecting that communication'. Lander J followed the decision in Barclays Bank Plc v Eustice [1995] 4 All ER 511. Schiemann LJ (with whom the other members of the Court of Appeal agreed) said at 524 that, because the relevant transactions involving the disposition of assets at undervalue were intended to prejudice the interests of the secured creditor, the
'… purpose [was] sufficiently iniquitous for public policy to require that communications between [the client] and his solicitor in relation to the setting up of these transactions be discoverable.
If that view be correct, then it matters not whether either the client or the solicitor shared that view. They may well have thought that the transactions would not fall to be set aside … either because they thought that the transactions were not at an undervalue or because they thought that the court would not find that the purpose of the transactions was to prejudice the bank. But if this is what they thought then there is a strong prima facie case that they were wrong. Public policy does not require the communications of those who misapprehend the law to be privileged in circumstances where no privilege attaches to those who correctly understand the situation.'
95 It is a short step from those decisions to the present facts, as prima facie found. The Sobey interests engaged in the transactions reflected in the Deed, and the granting of the securities within the structures it created, to secure or advance their interests over others who had advanced money to Mr Mercorella or to the Scheme. There is a prima facie case that the 'restructure' of the advances so that they appear as advances to the partnership of Ajay and Opey is a sham.
96 If the advances were to Mr Mercorella for the Scheme, and the securities were granted in July 2005 directly to the Sobey interests, then in the event of Mr Mercorella's bankruptcy or the event of the liquidation of the Scheme companies, the grant of the securities would be likely to be void as against the trustee in bankruptcy or the liquidator (s 121 and s 122 Bankruptcy Act 1966 (Cth) and Div 2 of Pt 5.7B of the Act). It would not necessarily follow that the communications with legal advisers in relation to the implementation of those transactions would not be privileged by reason of public policy. Certainly, there is no public policy consideration which would or should disinhibit the lender, in the circumstances in which the Sobey interests found themselves by April 2005, from seeking legal advice as to their position, including what if anything could be lawfully done to improve their prospects of getting repaid or of obtaining the interest to which they were entitled. The contrary is the case. The public interest is that they should be able to get that advice.
97 If it be supposed then that the legal advice were to the effect that any grant of securities from that point would be vulnerable to being void as against Mr Mercorella's trustee in bankruptcy or as against the liquidator of the Scheme companies, in the event that bankruptcy or liquidation were soon to occur, but that the Sobey interests were prepared to take that chance (perhaps influenced by their claim that there had been an earlier promise that such security had been given), it is not obvious that public policy would dictate that their communications with their legal advisers relating to the obtaining of the securities were not privileged. There would be no element of concealment of the true nature of the transaction, and the consequences of the transaction will be apparent from the documents so the relevant statutory provision can do their work, if appropriate. I do not have to address that particular circumstance. It illustrates the care needed in identifying the relevant public policy.
98 Burrough J said in Richardson v Mellish (1824) 2 Bing 229 at 252 that public policy 'is a very unruly horse, and when once you get astride it you never know where it will carry you'. Public policy reflects the ideas which from time to time prevail in the community, so it is not a fixed and stable concept. See the discussion by Jordan CJ in Re Jacob Morris (deceased) (1943) 43 SR (NSW) 352 at 355-356. It can inform, and arise, in a wide range of contexts, e.g. how it should 'respond to the practicability of eugenics' (per Spigelman CJ in Harriton v Stephens (2004) 59 NSWLR 694 at 702); see also Waller v James [2006] HCA 16; Harriton v Stephens [2006] HCA 15. In Cattanach v Melchior (2003) 215 CLR 1 McHugh and Gummow JJ at [58]-[75] discussed a number of decisions and texts concerning the nature and significance of 'public policy' to judicial decision-making. Their Honours' observations provide a salutary caution against too ready an acceptance of current or contemporary perceptions of public policy as a tool in judicial decision-making.
99 The present prima facie findings however disclose a significant dimension beyond those discussed in [96]-[97]. The Sobey interests (apparently with Mr Mercorella's acquiescence) presented a structure in which their advances were presented as made indirectly to Mr Mercorella and the Scheme through the partnership between Ajay and Opey. They presented ACN 114 as the trustee of The Mercorella Security Trust, and as trustee for those advancing funds to Ajay and Opey, and to receive from Mr Mercorella and the Scheme companies the various securities. There is a prima facie case that the structure so presented is simply not true. The prima facie case discloses an attempt to conceal the true nature of the transaction by which advances were made to Mr Mercorella for the Scheme. The establishment of ACN 114 as trustee in that structure, and so the grant of securities to ACN 114 as trustee again under the aegis of that structure, is also part of or in furtherance of the concealment of the true nature of the initial advances and (presumably) to make the securities granted somehow less vulnerable to attack.
100 I can see no public interest in a client engaging a legal practitioner for the purpose of preparing documents which have the effect of concealing the true nature of a transaction and which enable to client to present through documents a picture which is not true. In the particular circumstances of this case, therefore, I consider that the engagement of TP for the purposes of establishing the Deed, and the granting of the securities, does not give rise to communications which are protected from disclosure by legal professional privilege.
101 That, of course, does not relate to communications with TP for the purpose of obtaining advice about what, if anything, the Sobey interests might do to protect their interests once they became concerned about Mr Mercorella's ability to pay the interest to which they were entitled and to repay their advances. Nor does it relate to communications with TP for the purpose of obtaining advice about the enforceability of the securities, once they had been granted and it became clear that the scheme was to be wound up.
102 The way the documents are presented in PT.1, PT.2 and PT.4 does not enable a ready isolation of a particular file or files as being caught by that ruling. I have therefore referred to the lists of those documents to make that determination. In my judgment, the appropriate cut-off point at which the purpose of the legal advice sought moved from the legitimate one about the assets of Mr Mercorella and the Scheme companies, and whether anything could properly be done to protect the investment of the Sobey interests, is 30 April 2005. The other cut-off point is 11 August 2005, at which time on the evidence TP were engaged to advise about the enforceability of the securities which had been granted. There is no improper purpose in doing so, and legal professional privilege therefore exists in communications with TP and its internal documentation after that date.
103 In addition, as there is on the evidence a prima facie case that the establishment of the Ajay/Opey partnership as an intermediate borrower was a sham, and was part of the process of advancing the Sobey interests over those of other lenders to the Scheme by creating a façade which did not reflect the reality of what had occurred, I think that earlier communications between the Sobey interests and TP (and others) clearly confined to that topic are also not privileged. They were in furtherance of that improper purpose. I have endeavoured to separate those earlier communications from others of the time in which legal advice was sought and given on more general or different issues, and to confine them to the communications specifically in furtherance of the scheme.
104 As best I can, those documents prior to 11 August 2005 over which privilege does not exist for reasons of public policy (confining my consideration to those in Parts 2 and 4 of the schedule) are those numbered PT.1.2, 20, 21, 22, 23, 24, 29, 30, 46, 48, 49, 50, 51, 52, 55, 59, 60, 65, 121, 122, 123, 127 129, 131, 132, 133, 134, 135, 138, 142, 143, 145, 148, 150, 151, 152, 156, 157, 161, 162, 163, 164, 165, 167, 169, 173, 174, 179, 180, 181, 186, 187, 188, 190, 191, 192, 193, 195, 196, 199, 200, 202, 205, 206, 207, 208, 215, 227, 228, 229 and 231.
105 I have not sought to identify all those documents in which there is no legal professional privilege because they are or relate to communications for an improper purpose, but only those in respect of which I have not already found for other reasons that privilege does not exist.
106 The documents in PT.4 in TP files all appear to have been provided to TP for the purpose of giving legal advice about the enforceability of the Deed and the securities granted, and associated matters. The four files of TP contain records which relate to that period of time. I consider that, subject to the rulings about particular documents which are recorded in these reasons and in Part 4 of the Schedule, privilege in those documents remains.
107 The two separate bundles of documents in PT.4 are described above. The documents described in them which contain material brought into existence after 11 August 2005, and in which either Mr Nicol has acknowledged privilege exists or which have been the subject of a ruling that privilege exists, continue to be privileged, despite the conduct of the Sobey interests which I have found on a prima facie basis. To the extent that there are other documents in those bundles, privilege has not been found to exist in relation to them.
108 The result is that, in my judgment, legal professional privilege properly invoked by the Sobey interests exists in the documents listed in Part 5 of the Schedule. I will declare that those documents, produced by Mr Tanti, should not be available for inspection by Mr Nicol.
109 Given the complexity of the task of identifying and ruling on the claims for privilege, I will give Mr Nicol liberty to apply for a determination to vary any of the determinations that I have made that particular documents are privileged from production on one or other of the grounds he has relied upon. I give that leave because the presentation of the claim by the Sobey interests has left me with a concern that there may be documents which I have, at present, found to be the subject of legal professional privilege and which in fact may not attract that privilege.
110 I will give the parties the opportunity to make submissions about other or consequential orders.
SCHEDULE 1
PART 1
111 The documents in which privilege is not claimed or has been waived, or over which privilege has been claimed and disputed and which have not been the subject of supporting evidence by the Sobey interests:
PT.1 1, 3-8, 10-13, 16-18, 25-27, 32-37, 40-42, 56-58, 62, 70, 73-75, 80, 81, 83-87, 89-102, 104-113, 115, 117-120, 124-126, 130, 136-137, 139-141, 144, 153-155, 158-160, 166, 170-172, 176, 182-185, 189, 194, 197, 201, 203-204, 209, 210-214, 216-226, 230, 233-235, 242, 243
PT.2 1-61
PT.4 1-14, 18-20 (although Mr Lee's evidence covered these documents, the earlier correspondence waived privilege in respect of them and there is no evidence to suggest that was in error), 26-30, 41 (although Mr Lee's evidence covered this document, the earlier correspondence waived privilege in respect of it and there is no evidence to suggest that was in error), 51, 52, 59 (although Mr Lee's evidence covered this document, the earlier correspondence waived privilege in respect of it and there is no evidence to suggest that was in error), 61, 62, 64-66, 69, 71-73, 76 (although Mr Lee's evidence covered this document, the earlier correspondence waived privilege in respect of it and there is no evidence to suggest that was in error), 77, 83-88, 93, 94, 97-106, 109, 113, 114, 120, 123, 125-127, 129, 130, 132, 134 (although Mr Lee's evidence covered this document, the earlier correspondence waived privilege in respect of it and there is no evidence to suggest that was in error), 137, 139 (although Mr Lee's evidence covered this document, the earlier correspondence waived privilege in respect of it and there is no evidence to suggest that was in error), 142-144, 146, 147, 154, 158, 160, 162, 165, 166, 168, 169, 177, 179, 180, 185, 186, 190, 192 (although Mr Lee's evidence covered this document, the earlier correspondence waived privilege in respect of it and there is no evidence to suggest that was in error), 194, 197, 199-209 (although Mr Lee's evidence covered 207, the earlier correspondence waived privilege in respect of it and there is no evidence to suggest that was in error), 221 (although Mr Lee's evidence covered this document, the earlier correspondence waived privilege in respect of it and there is no evidence to suggest that was in error), 226, 229, 231, 233, 239, 245-251, 257, 258, 260, 261 (although Mr Lee's evidence covered this document, the earlier correspondence waived privilege in respect of it and there is no evidence to suggest that was in error), 262, 263, 265-282, 286, 290-292, 296-298, 300,303, 309, 310, 312, 313, 315-319, 323, 324, 330, 333, 337-340, 343, 346-350, 352-354, 356, 357, 359, 362-364, 366, 367, 368.
PART 2
112 The documents in which privilege is not disputed (subject to the 'fraud' exception):
PT.1 2, 20-24, 29, 30, 39, 47, 50-52, 65-69, 76-79, 82, 103,114,116, 121, 122, 142, 143, 152, 157, 161, 163, 164, 169, 180, 181, 193, 208, 228, 236-241, 244, 245, 247-253, 256-260, 262, 263.
PT.4 15, 16, 22, 24, 31-33, 35, 38-40, 46, 47, 54, 57, 60, 63, 68, 70, 78, 96, 108, 111, 115-118, 128, 135, 136, 138, 148,151, 153, 156, 157, 161, 164, 167, 170-172, 174-176, 178, 181-184, 188, 189, 191, 193, 198, 210,214, 215, 217-220, 222, 223, 225, 230, 232, 235, 237, 238, 240, 243, 253, 254, 259, 283-285, 287-289, 293-295, 299, 301, 302, 304-308, 311, 314, 320-322, 325-329, 331, 332, 334-336, 341, 342, 344, 345, 351, 355, 358, 360, 361, 365.
PART 3
113 The disputed documents (not including those said to be excluded by the fraud exception):
PT.1 9, 14, 15, 19, 28, 31, 38, 43-46, 48, 49, 53-55, 59-61, 63-64, 71, 72, 88, 123, 127-129, 131-135, 138, 145-151, 156, 162, 165, 167, 168, 173-175, 177-179, 186-188, 190-192, 195, 196, 198-200, 202, 205-207, 215, 227, 229, 231, 232, 246, 254, 255, 261.
PT.4 17, 21, 23, 25, 34, 36, 37, 42-45, 48-50, 53, 55, 56, 58, 67, 74, 75, 79-82, 89-92, 95, 107, 110, 112, 119, 121, 122, 124, 131, 133, 140, 141, 145, 149, 150, 152, 155, 159, 163, 173, 187, 195, 196, 211-213, 216, 224, 227, 228, 234, 236, 241, 242, 244, 252, 255, 256, 264.
PART 4
Rulings On Disputed Documents
114 The documents (in addition to those in which privilege is not disputed, subject to the 'fraud' exception) which are protected from production on the ground of legal professional privilege, subject to the fraud exception, are those described in the lists of documents and numbered:
PT.1 9, 19, 31, 44, 45, 46, 48, 49, 53, 54, 55, 59, 60, 61, 63, 64, 71, 72, 88, 123, 127, 129, 131, 132, 133, 134, 135, 138, 145, 148, 150, 151, 156, 162, 165, 167, 173, 174, 179, 186, 187, 188, 190, 191, 192, 195, 196, 199, 200, 202, 205, 206, 207, 215, 227, 229, 231, 232, 246, 254, 255 and 261 and
PT.4 17, 21, 23, 25, 34, 36, 37, 42, 43, 44, 45, 48, 49, 50, 53, 55, 56, 58, 67, 74, 79, 80, 91, 92, 95, 107, 112, 119, 121, 124, 131, 133, 140, 141, 145, 149, 150, 155, 159, 163, 173, 187, 195, 212, 213, 216, 224, 227, 228, 234, 241, 242, 244, 255, 256 and 264.