obtaining legal advice
85 Succinctly stated, the first limb of legal professional privilege attaches privilege to confidential communications made for the dominant purpose of obtaining or giving legal advice. In applying this limb, one of the first questions that arises is what qualifies as legal advice.
86 In Balabel v Air India [1988] 1 Ch 317 ('Balabel'), Taylor LJ (Parker LJ and Lord Donaldson MR agreeing) said that it goes too far to extend legal advice privilege without limit to all solicitor and client communications upon matters within the ordinary business of a solicitor and referable to that relationship. In his Lordship's view, the correct test is whether the communication or other document was made confidentially for the purposes of legal advice. Taylor LJ then continued at 330:
'Those purposes have to be construed broadly. Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and client. The negotiations for a lease such as occurred in the present case are only one example. Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as "please advise me what I should do". But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.'
87 This analysis, especially the concluding words, must be understood in the context of the case. Balabel concerned documents which were brought into existence for the purposes of the solicitor's conduct of a commercial leasing transaction. The trial judge had held that privilege only attached to documents which actually seek or convey advice, and did not extend to two other categories of documents relating to the lease, namely communications between the client and its solicitors, and draft working papers, attendance notes and memoranda of the solicitors: at 323.
88 The approach explained by Taylor LJ in Balabel has been followed in subsequent cases. In Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1995] 1 All ER 976 ('NRG'), the action concerned a negligence claim brought by a Dutch corporation against various parties who had advised it in connection with a share purchase transaction. In the course of discovery, the plaintiff disclosed a bill of costs from its solicitors in respect of work carried out in relation to the share purchase transaction. One of the defendants claimed that the bill of costs showed that the solicitors were providing not only legal advice but advice of a more general nature going to the commercial advisability of the share purchase transaction. They sought specific discovery of communications passing between the plaintiff and its solicitors. Colman J rejected the claim. In doing so, Colman J said that Balabel had not disturbed well accepted principles concerning the scope of legal professional privilege (at 983):
'However, legal professional privilege only attaches to such communications as pass between the solicitor and client which are brought into existence or occur in the course of the performance of the solicitor's professional duty or function as solicitor retained to give professional advice, as distinct from some other capacity unrelated to the giving of legal professional advice (see Minter v Priest [1930] AC 558 esp at 581-586 per Lord Atkin). The substance of the scope of the privilege as identified by Taylor LJ in Balabel v Air India [1988] 2 All ER 246, [1988] Ch 317 does not, in my view, disturb or modify what has been clear law since Minter v Priest, namely that if a solicitor is instructed for the purpose of getting legal advice in relation to a particular transaction or series of transactions, then all the communications between the solicitor and the client relating to that transaction will be privileged notwithstanding they do not contain advice on matters of law or construction, provided that they are directly related to the performance by the solicitor of his professional duty as legal adviser of the client.'
89 In Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 ('Three Rivers'), the privilege claim arose in the context of an inquiry by Bingham LJ that followed the collapse of the Bank of Credit and Commerce International SA ('BCCI') in July 1991. The focus of the inquiry was the supervision of BCCI by the Bank of England. Freshfields were retained by the Bank to advise generally on all dealings of the Bank, its officials and employees with the inquiry. Freshfields retained counsel to assist in the process. Both Freshfields and counsel gave advice as to the preparation and presentation of the Bank's evidence to the inquiry and as to the submissions that should be made to the inquiry on the Bank's behalf. The Bank claimed legal advice privilege over documents which the trial judge summarised as having been 'generated for the purpose of providing information to the Bank's legal advisers to enable them to prepare submissions and/or to advise on the nature, presentation, timing and/or content of the Bank's submissions to, evidence for and responses to requests from the inquiry': see Three Rivers District Council v Governor and Company of the Bank of England (No 5) [2003] EWHC 2730 (Comm). It appears that insofar as these documents were at issue in the House of Lords in Three Rivers, they all related to the content of the Bank's 'overarching statement' (the statement of its case) to the inquiry: see at 641 [6] and 683 [120]. The Bank did not rely upon the litigation limb of legal professional privilege because the inquiry was not an adversarial proceeding: see the House of Lords' decision in In re L (a minor) (Police Investigation: Privilege) [1997] 1 AC 16 ('Re L') which I discuss later in these reasons.
90 The Court of Appeal (see Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] QB 916) held that legal advice privilege was restricted to material constituting or recording communications between clients and lawyers seeking or giving advice about the clients' legal rights and obligations. It accepted a contention that advice as to how the Bank should present its case to the inquiry, so as to lead to a conclusion as favourable to the Bank as possible, did not qualify for privilege.
91 The House of Lords overturned the decision of the Court of Appeal. It held that the documents at issue were the subject of legal advice privilege. All of their Lordships endorsed Taylor LJ's statement in Balabel that legal advice is not confined to telling the client the law but also includes advice as to what should prudently and sensibly be done in the relevant legal context.
92 It is sufficient for present purposes to refer to several passages in the speeches of Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell and Lord Brown of Eaton-under-Heywood.
93 Lord Scott said at 652-653 [43] that:
'The preparation of the evidence to be submitted and the submissions to be made to the inquiry on behalf of the Bank were for the purpose of enhancing the Bank's prospects of persuading the inquiry that its discharge of its public law obligations under the Banking Acts in relation to BCCI was not deserving of criticism and had been reasonable in the circumstances. The presentational advice given by Freshfields and counsel for that purpose was advice "as to what should prudently and sensibly be done in the relevant legal context": Balabel v Air India [1988] Ch 317, 330. The "relevant legal context" was the Bingham Inquiry and the question whether the Bank had properly discharged its public law duties under the Banking Acts. The presentational advice falls, in my opinion, squarely within the policy reasons underlying legal advice privilege.'
A little later Lord Scott said at 653 [44]:
'The skills of professional lawyers when advising a client what evidence to place before an inquiry and how to present the client and his story to the inquiry in the most favourable light are, in my opinion, unquestionably legal skills being applied in a relevant legal context.'
94 Lord Rodger distinguished the situation which would arise if the Bank consulted other professionals, including 'the modern equivalent of a rhetorician', on how to present the Bank's position and evidence to the inquiry: at 658 [59]. His Lordship then said at 658 [60]:
'When, however, the [Bank] consulted the lawyers in Freshfields, and through them counsel, about the presentation of their evidence to the inquiry, it was not seeking their comments and assistance as bankers, accountants, rhetoricians or anything else: it was seeking their comments and assistance as lawyers professing expertise in the field. Either expressly or impliedly, the [Bank] was asking them to put on legal spectacles when reading, considering and commenting on the drafts. In other words it was asking them to consider, as lawyers, how the Bank's evidence could be most effectively presented to Bingham LJ, given that he was inquiring into the Bank's discharge of their legal responsibilities under the Banking Acts. Such advice could come in many forms.
…
What matters is that the [Bank] was instructing the lawyers in Freshfields to carry out a function which necessarily involved the use of their legal skills if it was to be performed properly. The communications between the [Bank] and Freshfields were therefore concerned with obtaining "legal advice" in the broader sense in which, as Taylor LJ rightly said in Balabel v Air India, that term should be understood for this purpose. It follows that legal advice privilege applies to those communications. The appeal must be allowed.'
95 Lord Carswell said at 681 [114]:
'The work of advising a client on the most suitable approach to adopt, assembling material for presentation of his case and taking statements which set out the relevant material in an orderly fashion and omit the irrelevant is to my mind the classic exercise of one of the lawyer's skills. I can see no valid reason why that should cease to be so because the forum is an inquiry or other tribunal which is not a court of law, provided that the advice is given in a legal context: see Lord Scott's opinion at para 42.'
96 Lord Brown said at 683 [120]:
'I think it clear that legal advice privilege attaches to the communications between the Bank and its lawyers concerning the preparation of the Bank's overarching statement (the statement of its case to the Bingham Inquiry). I would go so far as to state as a general principle that the process by which a client seeks and obtains his lawyer's assistance in the presentation of his case for the purposes of any formal inquiry - whether concerned with public law or private law issues, whether adversarial or inquisitorial in form, whether held in public or in private, whether or not directly affecting his rights or liabilities - attracts legal advice privilege. Such assistance to my mind clearly has the character of legal business. It is precisely the sort of professional service for which lawyers are ordinarily employed by virtue of their expertise and experience.'
97 In Australia, in Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 ('Dalleagles'), Anderson J rejected the argument that legal advice privilege only extended to what is literally either legal advice or a request for legal advice, and arrived at much the same position as Taylor LJ enunciated in Balabel. At 332-333, Anderson J said:
'I do not think the authorities provide justification for concluding that the doctrine of legal professional privilege as applying to non-curial communications between solicitor and client has been refined to the extent submitted by counsel for the defendants, which would require professional communications to be excluded from the protection of privilege unless expressed as advice simpliciter or as a request for such advice or unless forming part of a communication expressed in that way. But anyway, I think it is the case that whenever a lay client gives instructions to a legal practitioner to perform specialist legal services involving the exercise of professional skill, there is imposed on the solicitor a duty to give any advice reasonably necessary to protect the client's interests in the transaction whether expressly requested or not. Two cases in this Court illustrating that rule are Watts v Public Trustee (WA) [1980] WAR 97 and Stone James & Co v Investment Holdings Pty Ltd [1987] WAR 363: see also Macpherson v Kevin J Prunty & Associates [1983] 1 VR 573. It is not a large step from that position to say that whenever a client gives instructions to his solicitor there is assumed to be a request for advice. In my opinion, discourse between solicitor and client with reference to the transactions covered by those instructions, that is, professional discourse in a professional capacity, should be regarded as prima facie for the purpose of giving and receiving advice. This would apply to any communication that is on its face a communication of a professional nature from the solicitor to the client or his agent touching the subject matter of the solicitor's engagement and any communication from the client to the solicitor in connection with that engagement. Only if the rule is applied in that way can the policy of it be carried out and its object practically fulfilled.'
Anderson J went on to say that there are limits to the application of this principle, including the fact that the material in question must have been created for the purpose of fulfilling the solicitor's professional engagement: at 334.
98 In DSE (Holdings) Pty Ltd v Intertan Inc (2003) 135 FCR 151 ('DSE'), Allsop J followed Dalleagles and Balabel, and said that he saw no difference of substance between them: at 173 [71]. But Allsop J made it clear that he did not consider that these cases extended legal professional privilege beyond legal advice (at 165 [45]):
'I do not read the reasons of Taylor LJ as extending the privilege beyond legal advice. The reasoning of Taylor LJ was clearly directed to the privilege being so limited. 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 lawyer's 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). That is how I read this last cited paragraph of Colman J: not extending the privilege beyond legal advice to commercial advice, but as recognising the form and nature of advice in a practical day to day context.'
The last sentence in this passage refers to the statement by Colman J in NRG at 983 that a solicitor's professional duty or function not infrequently relates to the commercial wisdom of entering into a given transaction in relation to which legal advice is also sought.
99 Allsop J's judgment contains an extensive review of the cases which have referred to, and applied, the reasoning of Taylor J in Balabel. They include Saunders, in which French J said that the principle applied by Anderson J in Dalleagles extends to materials brought into existence by the client in order to communicate with the solicitor for purposes which would attract privilege: at 472. In Wenkart v Australian Federal Police (unreported, Branson J, 11 November 1986) ('Wenkart'), Branson J cited Dalleagles for the proposition that 'professional discourse in a professional capacity, with reference to transactions covered by a retainer to provide legal advice, will be regarded as prima facie for the purpose of giving and receiving advice'.
100 Having regard to the forgoing authorities, I accept that legal advice is not confined to telling the client the law but includes professional legal advice as to what should prudently and sensibly be done in the relevant legal context. Furthermore, in view of the House of Lords' decision in Three Rivers, I also accept that legal advice includes professional advice given by lawyers to a client as to what evidence and submissions should be placed before a commission of inquiry.
101 There are, however, two additional points to be made. First, to qualify as privileged, the lawyer's advice must satisfy the description of professional advice given by a lawyer in his or her capacity as such: see NRG at 982 [g]-[j]; Three Rivers at 651 [38] and 658 [59]-[60]. The same requirement exists in the United States: see JH Wigmore, Evidence in Trials at Common Law, vol 8, rev J McNaughton, Little Brown & Company, 1961 (1981) at s 2292; and Evans v City of Chicago 231 FRD 302 (ND Ill 2005). Secondly, communications for the purpose of obtaining and giving legal advice in the sense discussed in Balabel and the other cases mentioned above must satisfy the dominant purpose test if they are to attract legal professional privilege.
102 The question whether the draft statement of contrition that now constitutes Exhibit 665 was brought into existence for the dominant purpose of obtaining legal advice is a question of fact. In answering this question it must be kept firmly in mind that the privilege protects confidential communications, and not documents as such. As Dawson J said in Propend at 515, 'to say that a document is privileged is merely a shorthand way of saying that the communication constituted by the document is privileged': see also Toohey J at 525, Gaudron J at 543, McHugh J at 552 and Gummow J at 569.
103 The decision in Propend turned fundamentally on the proposition that legal professional privilege protects communications rather than documents. This explains why, as the High Court held in Propend, legal professional privilege can attach to copies of non-privileged documents; the purpose of bringing the copy into existence may be different from the purpose of bringing the original into existence, and may attract legal professional privilege: see Brennan CJ at 507, Gaudron J at 544, McHugh J at 553-554, Gummow J at 571 and Kirby J at 587.
104 In this case, attention must focus on the creation and circulation of the draft statement of contrition that became Exhibit 665. The confidential communications involved in those steps are distinct from the possible future step of communicating a statement of contrition to the public through the medium of evidence to be given by Mr Lindberg at the Inquiry.
105 A 'dominant purpose' is one that predominates over other purposes; it is the prevailing or paramount purpose. In FCT v Pratt Holdings, on remitter from the Full Court, Kenny J said at 279-280 [30]:
'(7) The dominant purpose is not the same as the "primary" or the "substantial" purpose: see Grant v Downs at CLR 678; ALR 580 per Barwick CJ. The "dominant" purpose may be described as the ruling, prevailing, paramount or most influential purpose: see Mitsubishi Electric at [10], citing Federal Commissioner of Taxation v Spotless Services Ltd(1996) 186 CLR 404 at 416; 141 ALR 92 at 98 per Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ. The "dominant purpose" brings within the scope of the privilege a document brought into existence for the purpose of a client being provided with professional legal services notwithstanding that some ancillary or subsidiary use of the document was contemplated at the time: Esso at 72 [58] per Gleeson CJ, Gaudron and Gummow JJ; Sparnon v Apand at FCR 328; ALR 740-1 per Branson J; and see GSA [26]-[28] per Holmes J.'
106 Kenny J also said at 478 [30] that where two purposes are of equal weight, neither is dominant in the relevant sense; hence a document is not privileged from production where one purpose for its creation is to obtain legal advice, but there is another equally important purpose. I agree. The same conclusion follows if several purposes are of roughly similar weight, and it cannot be said that one prevails over the other. In Waugh v British Railways Board [1980] AC 521 ('Waugh') at 543, Lord Edmund-Davies adopted the dominant purpose test propounded by Barwick CJ in Grant v Downs, and stated that the element of clear paramountcy should be the touchstone. It is not unusual for privilege claims to fail because the evidence does not establish the requisite dominant purpose: see, eg, Kennedy v Wallace (2004) 208 ALR 424 at 444 [73]; and FCT v Pratt Holdings at 285 [44]-[46] and 287 [56].
107 The authorities accept that an appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence: see Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 ('Pratt Holdings') at 366 [35] per Finn J. I would add that where the document is immediately communicated by its author to several other persons, including the author's legal adviser, by a circular email (which is the case here), it is also important to ask what was the dominant purpose of that email communication.
108 Ordinarily, the relevant purpose will be that of the author of the document in question, but this will not always be the case. In Grant v Downs, Barwick CJ said at 677:
'Having considered the decisions, the writings and the various aspects of the public interest which claim attention, I have come to the conclusion that the Court should state the relevant principle as follows: a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.'
109 In Mitsubishi Electric Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 at 338 [14], Batt JA (Charles and Callaway JJA concurring) said:
'As summarised by Gummow J in Hartogen Energy by reference to High Court decisions, the purpose, that is the intended use, for which a document is brought into existence is a question of fact. Ordinarily the purpose will be that of the maker of the document, but that will not always be the case, as where some other person, such as a solicitor commissioning the provision of a technical report, calls the document into existence. In that case the relevant intention will not be that of the author but the solicitor: Hartogen Energy. Likewise, in his statement of principle in Grant v Downs Barwick CJ included the dominant purpose of the person under whose direction, whether particular or general, the relevant document was produced or brought into existence.'
110 In FCT v Pratt Holdings, Kenny J observed at 278 [30], correctly in my view, that the dominant purpose must be determined objectively, having regard to the evidence, the nature of the document and the parties' submissions. Kenny J added that the evidence of the intention of the document's maker, or of the person who authorised or procured it, is not necessarily conclusive of that purpose: see GSA Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146 ('GSA Industries') at 153 [28] per Holmes J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 545 per Goldberg J; Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 at 1036 per Slade LJ; Hartogen Energy Ltd (in liq) v Australian Gas Light Company (1992) 36 FCR 557 at 568-569 per Gummow J; and Sparnon v Apand Pty Ltd (1996) 68 FCR 322 at 328 per Branson J. As these cases make clear, it may be necessary to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-making or consultation that lead to the creation of the document and its subsequent communication.
111 In the usual case, the question will be whether the requisite dominant purpose existed at the time the document was brought into existence. In some cases, however, intentions may shift between the time when the document was commissioned or created or communicated: see GSA Industries at 153-154 [29]-[34]; and Esso at 77 per McHugh J. In GSA Industries, Holmes J observed at 154 [34] that, on the basis that the communication and not the document is the subject of privilege, it is arguable that a time later than the creation of the document may be relevant. This kind of difficulty does not arise in the present case. It is not suggested by either party that Mr Lindberg's intentions, or those of any other party relevant to the creation or communication of Exhibit 665, changed between the time when Mr Lindberg drafted the statement of contrition and the time when it was communicated by email to those who had participated in the telephone conference of 21 December 2005.
112 Having regard to the evidence before me, the nature of Exhibit 665 and the submissions made by both parties, I find that the draft statement of contrition that constitutes Exhibit 665 was brought into existence for several purposes. One purpose and intended use was to submit the draft statement to Dr Sandman for further comment and advice of a public relations nature. A second purpose and intended use of the draft statement was to submit it to Mr Zwier in order to obtain his further advice. I accept that the advice to be sought from Mr Zwier qualifies as legal advice for the purposes of the first limb of the privilege. A third purpose and intended use was to submit the draft statement to other senior representatives of AWB, including Mr Cooper, Dr Fuller, Mr Hargraves and Ms Gillingham, to enable them to consider in their capacity as senior executives of AWB whether a statement of contrition along the lines of Exhibit 665 should be made by Mr Lindberg to the Inquiry in the course of his evidence.
113 The way that Dr Fuller put it was that the purpose of the draft statement of contrition was to enable the corporate group to think about how AWB might deal with the reputational damage it had sustained and was likely to sustain in the future. I infer from this evidence and other evidence given by Dr Fuller that the thinking was to be done by, inter alia, senior decision-makers within AWB, and extended to some involvement at director level. This is also indicated by the circulation of the draft statement to senior AWB officers.
114 After drafting the statement of contrition, Mr Lindberg caused it to be sent by circular email from Ms Gillingham to Mr Cooper, Mr Zwier, Dr Sandman, Mr Hargraves and Dr Fuller. There was, in effect, a single communication by the stroke of a key with the various recipients of the email. On the evidence before me, I do not draw any distinction between the purposes and intended uses which brought the draft statement of contrition into existence and the purposes and intended uses of the circular email and its attachment.
115 On the evidence, I am not satisfied that Exhibit 665 was brought into existence, and circulated by email, for the dominant purpose of obtaining further legal advice. The evidence does not establish that one or other of the purposes and intended uses which I have identified was paramount, prevailing or dominant.
116 Exhibit 665 is a confidential exhibit to Mr Zwier's affidavit of 5 April 2005. The exhibit was not made available to the respondents. It is well recognised that a court may examine a document over which privilege is claimed in order to ascertain whether the nature and content of the document supports the claim to legal professional privilege. In Grant v Downs, Stephen, Mason and Murphy JJ stated at 689:
'The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence.'
See also Trade Practices Commission v Sterling [1978] 36 FLR 244 ('Sterling') at 246 per Lockhart J.
117 I have inspected Exhibit 665. In my opinion, the character and content of the document does not provide any assistance to AWB in establishing its claim for legal professional privilege. On the contrary, it confirms my view that it was brought into existence, and was to be used, for multiple purposes, and that the two other purposes I have identified were of no lesser importance than the purpose of obtaining legal advice.
118 The mere fact that the draft statement of contrition was sent by email to Mr Zwier, amongst others, for his legal advice is not determinative of the dominant purpose for which the draft statement was created. Nor does it determine that one intended use of the document was more dominant than other intended uses. As Brennan CJ said in Propend at 508, the test is anchored to the purpose for which the document was brought into existence. I have taken into account Mr Lindberg's evidence that it was always contemplated that any statement of a public relations kind would have to be part of, or a sub-set of, the legal strategy of AWB in dealing with the Inquiry. By this, Mr Lindberg explained that he meant that if the statement were to proceed it had to be supported by legal advice, including the accuracy of the facts and conduct about which AWB was prepared to apologise. Mr Lindberg said that his most important concern was about giving clear, honest and true evidence to the Inquiry. I accept that the proposed statement of contrition had to be evaluated against legal advice. None of this evidence is inconsistent with, or causes me to doubt, my finding that the statement of contrition was brought into existence for multiple purposes and none was dominant.
119 The Solicitor-General for the Commonwealth argued that the heading of Exhibit 665 indicates the character and purpose of the document, which was to influence public opinion through the vehicle of a statement that was to be made by Mr Lindberg during the course of his evidence to the Inquiry. The Solicitor-General added that it should be inferred that this purpose was to be implemented, conditional on the course of action being cleared by AWB's lawyers. It seems to me that this characterisation goes further than the evidence permits. The evidence does not allow me to find that the purpose of making a public relations statement was the sole purpose, or that it had matured to the point where it was going to be implemented, subject to legal clearance. In addition, I consider that the submission tends to confuse the purpose of possible future evidence to the Inquiry with the purpose and intended use of the draft statement that constituted Exhibit 665.
120 In its submissions, AWB contended that the evidence discloses three possible purposes for the creation of Exhibit 665 which it referred to as the immediate purpose, the intermediate purpose and the ultimate purpose. The immediate purpose of the document was said to be disclosed by the fact that it was brought into existence at the direction of Mr Zwier, notwithstanding that it was authored by Mr Lindberg. AWB submitted that Mr Zwier's purpose is important, taken together with the objective purposes of the document and its context. In my view, this submission misstates the relevant evidence.
121 Having regard to all of the evidence, I find that the major impetus for the creation of Exhibit 665 was Dr Sandman's advice that AWB should 'over-apologise', sooner rather than later and via a statement by its managing director, so as to deal with the reputational damage AWB had sustained and was likely to sustain in future. AWB retained Dr Sandman directly via an exchange of emails on 7 and 8 December 2005. Dr Sandman was not engaged by Mr Zwier or Arnold Bloch Leibler on behalf of AWB. AWB retained Dr Sandman to provide strategic advice and public relations advice in connection with the Inquiry. I find that Dr Sandman provided advice to AWB prior to the meeting of 14 December 2005, which appears to be the first occasion on which Mr Zwier and Ms Thompson discussed AWB's retainer of Dr Sandman and gave advice about suggestions which had emanated from Dr Sandman. Mr Zwier considered that he was being consulted in relation to legal issues that would arise for AWB from the strategy of 'over-apologising' that Dr Sandman was recommending. In my opinion, Dr Fuller's evidence at the Inquiry, which I accept, confirms the central role played by Dr Sandman's advice in the conception and formulation of a public apology by AWB. As for Mr Lindberg's evidence that the notion of a statement of contrition came from AWB's legal advisers, its meaning is unclear and I am disposed to accept it only in the limited sense that the idea of incorporating such a statement into Mr Lindberg's evidence came from the legal advisers.
122 In my opinion, Mr Zwier's purpose is not determinative of the purposes and intended uses for which Exhibit 665 was brought into existence. Purpose and intended use must be determined objectively, having regard to all of the evidence. I accept that Mr Lindberg acted on Mr Zwier's advice in drafting the statement of contrition and his drafting was based very closely on the oral and written advice previously provided by Mr Zwier. If the evidence went no further than this, it would not establish that the dominant purpose of the draft statement of contrition was to obtain further legal advice. Nor would it exclude the other purposes to which I have referred or establish that they were of lesser significance. However, when all of the evidence is taken into account, including that of Dr Fuller, it shows the statement of contrition was brought into existence for the three purposes I have identified.
123 AWB submitted that the intermediate purpose for the creation of Exhibit 665 was to seek legal advice from Mr Zwier. It was contended that Exhibit 665 was part of a continuum of ongoing communications between lawyer and client. If the submission is intended to suggest that the sole or dominant purpose for the creation of Exhibit 665 was the purpose of seeking legal advice from Mr Zwier, I reject the submission. If the submission is merely that one of the purposes for the creation of the document was the seeking of legal advice from Mr Zwier, as part of a continuum of advice relating to the Inquiry, I accept that this is supported by the evidence. But, in my opinion, the evidence does not establish that Exhibit 665 was created for the dominant purpose of seeking legal advice from Mr Zwier.
124 As to the ultimate purpose of Exhibit 665, AWB submitted that it was created for the purposes of the Inquiry and its ultimate purpose was to enhance AWB's prospects in the Inquiry. This does not establish a dominant purpose of obtaining legal advice. Three Rivers is distinguishable: it proceeded on the footing that all of the documents at issue were brought into existence for the dominant purpose of seeking Freshfields' advice about the Bank's 'overarching statement' of its case to the inquiry: see 642-643, 644, 662-664 and 667. The documents were not privileged merely because they related to the preparation of the Bank's overarching statement.
125 If and to the extent that the ultimate purpose of the statement of contrition is relevant, it would tell against the application of privilege. On the evidence before me, I consider that the incorporation of a statement of contrition into Mr Lindberg's evidence to the Inquiry was intended to be a public relations exercise addressing the reputational damage that AWB had suffered, and was likely to continue to suffer, as a result of the Inquiry. But the view I take is that these references to 'ultimate purpose' tend to confuse the purpose of possible future evidence to the Inquiry with the purpose and intended use of the draft statement that constituted Exhibit 665.
126 Lastly, AWB submitted that the immediate purpose, the intermediate purpose and the ultimate purpose could be conflated into the single purpose of 'the preparation of a document in consultation with legal advisers for the purpose of use in this legal context', that is to say in the context of the Inquiry. In my opinion, the same deficiencies attend this formulation and it does not advance the claim for legal advice privilege.