Barnes v Commissioner of Taxation

Federal Court of Australia (Full Court)|2007-08-22|Before: Nicholson J, Siopis JJ

THE COURT: 1 This is an appeal from a Judge of the Court dismissing the appellants' claim for legal professional privilege in respect of documents to which the respondent, the Commissioner of Taxation of the Commonwealth of Australia, sought access pursuant to s 263 of the Income Tax Assessment Act 1936 (Cth). The appellants claim that communications recorded in the documents are privileged because they are documents or copies of documents communicated by the appellants, their servants or agents to their legal advisers for the dominant purpose of seeking and receiving legal advice. The documents in question are the communications set out in the schedule attached to these reasons. Since the filing of the Notice of Appeal in this matter, counsel for the appellants noted that some of the documents are not pressed as being privileged, namely, all of documents 2, 48 and 90, and part of documents 54 and 78. 2 After noting that there was an absence of any analysis of, or specific evidence pertaining to, individual documents over which privilege was being asserted, the primary judge examined each of the documents and ruled against the privilege claim in respect of all of them on the ground that each document provided to him was a copy of another document (the original of which remained in the possession of Mr Calder, the Australian solicitor for the appellants) and thus there was no evidence of the dominant purpose for which these copies were brought into existence: Barnes v Commissioner of Taxation [2007] FCA 3 at [28]-[40]. 3 The Notice of Appeal identifies three grounds of appeal. The first contends that the primary judge erred because he addressed the question whether the dominant purpose existed at the time of creation of the relevant document rather than whether the purpose existed at the time each document was communicated. The second ground submits that his Honour erred in finding there was no evidence that any agency arrangement existed between the appellants and various persons and entities with whom they had previous dealings. The final ground of appeal contends the primary judge erred in not finding that the evidence was sufficient to establish that legal professional privilege attached to the documents.

TIME OF CREATION OR COMMUNICATION 4 It is uncontentious that the claims for privilege are to be determined by common law principles and not pursuant to the provisions of the Evidence Act 1995 (Cth) because this case is concerned with an application in the nature of discovery before hearing: see Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 at 59-63 (per Gleeson CJ, Gaudron and Gummow JJ) ("Esso Australia"). 5 As to the first ground of appeal, it is settled legal principle that the relevant time at which a claim for privilege is to be determined is the time when the document came into existence. The relevant question is whether the document came into existence for the dominant purpose of seeking legal advice or assistance. If the document satisfies that description, then it is privileged from production. The same question also applies in relation to copies of documents where the test is whether the copy itself came into existence for the dominant purpose of obtaining legal advice or assistance. These principles are spelt out in a number of decisions, including National Employers' Mutual General Insurance Association Ltd v Waind (1979) 141 CLR 648 at 654 (per Mason J); Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 508-509 (per Brennan CJ), 543-544 (per Gaudron J); 552-553 (per McHugh J) and 569 (per Gummow J) ("Propend"); and Esso Australia at 65-66 (per Gleeson CJ, Gaudron and Gummow JJ). A recent and helpful resume of the principles of legal professional privilege relevant to the obtaining and recording of legal advice was conducted by Young J in AWB Ltd v Cole (2006) 152 FCR 382 at 405-420. 6 There may be exceptional circumstances where there has been a change of purpose after the creation of the document but prior to its communication which could affect the question of privilege, given that it is the communication between lawyer and client which is protected and not the particular document itself. However, in the present case there is no evidence of such circumstances. 7 The decision in Esso Australia is important because in that case the High Court expressed the test at common law for legal professional privilege as being whether a communication is made or a document is prepared for the dominant purpose of a lawyer providing legal advice or legal services. This altered the earlier prevailing test in Grant v Downs (1976) 135 CLR 674, which required a claimant for privilege to show that the sole purpose of the relevant document was to seek legal advice or services. 8 The courts have recognised that legal advisers, in addition to providing legal advice, may also advise on more general and broader issues concerning the financial and commercial dealings of their clients. Although the courts have taken a pragmatic or realistic approach in circumstances where there is mixed advice given by or sought from a legal adviser, the test for privilege remains whether the dominant purpose of the creation of a document was for the provision of legal advice: see DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151; Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610. If the advice given by a legal adviser is predominately for a financial, personal or commercial purpose, as opposed to a purpose of seeking legal services or assistance, it will not be protected: Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610. 9 In relation to copy documents, Gaudron J in Propend at 543-544 concluded that legal professional privilege attaches to a copy document provided to a lawyer if the copy was made for the purpose of obtaining legal advice or for use in legal proceedings. A similar view was expressed by Gummow J at 571-572, where his Honour directed attention to the circumstances in which the document was brought into existence. 10 Gaudron J, when referring to copy documents and after pointing out that legal professional privilege is not designed to protect documents themselves but rather to protect the communication which takes place between the lawyer and the client, said at 543-544: '… a document which is brought into existence solely for the purpose of obtaining legal advice or solely for use in litigation and which is then provided to a lawyer for that purpose is, itself, a communication with the lawyer and … a privileged communication. Equally, a copy of a document made solely for the purpose of obtaining legal advice or solely for use in legal proceedings is, when provided to a lawyer for that purpose, a communication to the lawyer. … The consideration that the provision to a lawyer of a copy document is, itself, a communication different only in form from the oral communication of the contents of the original documents leads me to conclude that privilege attaches to a copy document which is provided to a lawyer if the copy was made solely for the purpose of obtaining legal advice or solely for use in legal proceedings.' (Emphasis added.) 11 Although the current test is 'dominant purpose' rather than 'sole purpose', the principles articulated by Gaudron J are applicable to the present case insofar as they concern copy documents. To attract privilege, therefore, it is necessary to show that the copy was created for the dominant purpose of seeking legal advice or assistance. The consequence of this may be that an original document which is not created for the dominant purpose of seeking legal advice and assistance, and thus was not privileged, may become privileged if a copy of it is created for that purpose. On the other hand, for example, where a document is privileged, but a copy of it is created for the purpose of commercial negotiation, this may result in the copy not being privileged. 12 The above principles are relevant in the present case because some of the advice given on the face of the documents, which we have examined, is directed to not only financial and commercial purposes but also legal purposes. Accordingly, it is not possible in the absence of any specific extrinsic evidence to determine whether the documents are privileged. In such circumstances, where on the face of the document there is substantial doubt whether the appellants can discharge the onus of proof, privilege cannot made out. 13 Having regard to the above considerations and authorities, the appellants' first submission that the relevant time for consideration of privilege is the time of communication and not the time of creation of the document is rejected.

INSUFFICIENCY OF EVIDENCE 14 The third ground of appeal argues that the primary judge erred in finding that there was insufficient evidence to establish that legal professional privilege attached to the documents. 15 The principal affidavit relied on by the appellants was deposed by Mr John Barnes on 12 October 2006. In it, Mr Barnes states that he became a resident of Australia in July 1996 or thereabouts and that he and his wife had been business people for many years, during which time they always consulted lawyers and accountants on financialand taxation matters. They continued this practice when they came to Australia, consulting with a lawyer, Mr Greg Calder, and an accountant, Mr Paul Tayler. In the course of briefing of Mr Calder about financial and tax matters, Mr Barnes and his wife provided him with a number of documents such as immigration papers, financial documents and copies of letters of advice from accountants and lawyers whom they had previously briefed. Mr and Mrs Barnes also sent letters and facsimiles to Mr Calder concerning their tax and financial affairs and Mr Calder wrote to them providing advice about these matters. Mr Barnes stated that he was aware that Mr Calder made notes of conversations after discussions with Mr Barnes and his wife. He said that he and his wife wished to claim legal professional privilege in respect of the documents he supplied to Mr Calder, his legal notes and the correspondence passing between Mr Calder, his wife and himself and other advisers. He asserts that all of the documents came into the possession of Mr Calder and his firm for the purpose of advising his wife and himself as to their tax and financial matters. 16 This affidavit falls far short of providing any adequate basis for claiming privilege in respect of any individual document. It consists of assertions, conclusions and generalised comments. The documents referred to are from a number of sources. The Further and Better Particulars of Statement of Claim furnished by the appellants refer to several different persons or entities who are said to have been originators of the documents. However, no evidence has been adduced from any of those persons. Most notable of all is the absence of any evidence from Mr Calder. In this context, the fact that Mr Barnes' affidavit does not clarify the reason why any specific document came into existence means that the Court is left to consider the documents on their face and determine as best it can whether the documents are privileged. This is unsatisfactory. 17 All the documents before the Court are copy documents. They appear to have been copied from the file of Mr Calder. The evidence indicates that the documents were in the possession of Mr Calder at the time they were taken, but there is no evidence as to which of those documents were copies or originals. In some cases, it might be inferred that the copies furnished to the Court are copies of originals on Mr Calder's files. For example, some documents appear to be copies of an original facsimile retained on the file after transmission. In addition, it may be inferred that some of the other documents are copies of originals on the file because they reproduce notes by Mr Calder which most likely were kept on his file. This is a matter of inference which the Court, in the absence of any evidence establishing where the original document is kept, is required to make. 18 The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallace (2004) 142 FCR 185 at 189, Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (1991) 29 FCR 203 at 211 (per Lockhart J); Grant v Downs (1976) 135 CLR 674 at 689 (per Stephen, Mason and Murphy JJ). Where possible the Court should be assisted by evidence of the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document. The fact that generalised evidence is not challenged in cross-examination does not mean that such evidence must be accepted, particularly when it is as manifestly inadequate as it is in this case. As in Kennedy v Wallace, mere general assertions of the purpose of creation of the documents are insufficient to discharge this onus. Even though in that case some evidence as to the purpose of particular records was adduced, Allsop J at 216 considered that the onus had not been discharged because the evidence did not permit a conclusion to be drawn as to the dominant purpose of the creation of any particular document or entry in a document. Simply to show that one purpose for creation of the document was to obtain legal advice or assistance is not good enough. 19 In the light of these principles it is clear that the evidence provided by the appellants is manifestly insufficient and does not establish any basis for their claim of privilege.

EXAMINATION OF DOCUMENTS 20 As a consequence of the unsatisfactory evidence before the Court we have decided to inspect the documents in question. In a number of cases we have formed a different opinion to that of the primary judge because we have considered it appropriate to draw conclusions from the form and content of the particular document. The inference which we have thus drawn is that some documents on the solicitor's file were originals (or at least duplicates created at the same time as the original). Consequently, it is not appropriate, as the primary judge has done, to treat all the documents as copies. 21 In relation to those documents which originated from Mr Calder himself, a number of them do not on their face indicate that they came into existence for the purpose of providing legal advice or assistance. As noted earlier, documents which set out financial figures, notes of meetings or which relate to financial or commercial considerations can be inferred to be originals on the file. In other documents it is evident from the nature of the documents themselves (such as immigration documents and land development planning documents) that they do not satisfy the dominant purpose test in the absence of evidence substantiating why they are privileged. On the face of other documents, it is evident that from time to time Mr Calder gave commercial and financial advice together with advice on legislation and immigration matters. It is not apparent on the face of these documents which purpose was dominant. 22 After inspection of all the documents, we consider that it can be reasonably inferred from the contents and on the face of some of the documents that they came into existence for the dominant purpose of legal advice. The documents which attract privilege are recorded in the conclusion and schedule to these reasons.

AGENCY 23 In view of the conclusions we have reached above, it is not necessary to deal with the second ground of appeal, namely, that his Honour erred in relation to the question of agency. This is because, even if agency is assumed, the claim for privilege has been determined on the face of the documents and by reference to their contents.

CONCLUSION 24 For the above reasons, the appeal is allowed in part. Having inspected each of the contested documents in light of the above principles, the documents marked "CLAIM ALLOWED" (documents 30-31, 35-43, 47, 51, 53, 56, 58-61, 63-68, 79 and 81) in the schedule attached to these reasons are privileged. Notwithstanding this conclusion, because of the lack of any evidentiary assistance from the appellants, the Court considers that the appellants should pay 75% of the respondent's costs of the appeal. The rulings of the primary judge in respect of the documents we have found to be privileged are set aside.

SCHEDULE Date Summary of Content Original Recipient No of Pages 1 Undated Facsimile forwarding letter from client's solicitor (UK) to Cooper Parry Paul Tayler 5 Claim rejected: no evidence of dominant purpose of creation of copy and on its face this is for financial assistance.

2 Undated Miscellaneous contact details NA 1 Claim not pressed. 3 Undated Declaration of Trust provisions NA 44 Claim rejected: no evidence of dominant purpose of creation of copy. On its face not for legal assistance.

4 4/03/96 Declaration for people applying business skills (Migrant) Visa subclasses 127, 128, 129 and 130 Australian High Commission London 1 Claim rejected: no evidence of dominant purpose of creation of copy. On its face not for legal assistance. 5 12/03/96 Providing background information in relation to Mr and Mrs Barnes and their financial affairs Anthony Austin 5 Claim rejected: no evidence of dominant purpose of creation of copy. 6 15/03/96 Comments/response to questions raised regarding Australian Taxation implication of the Barnes' affairs Yvonne Goldingham, Eversheds 6 Claim rejected: no evidence of dominant purpose of creation of copy. 7 18/03/96 Response to enquiries contained in letter of 15 March 1996 regarding John & Judy Barnes Yvonne Goldingham, Eversheds 5 Claim rejected: no evidence of dominant purpose of creation of copy. 8 18/03/96 Request of further clarification of Australian Taxation Law implication Jeff Faure, Minter Ellison 2 Claim rejected: no evidence of dominant purpose of creation of copy. 9 19/03/96 Request for clarification of Australian Taxation implications of proposed financial arrangements Jeff Faure, Minter Ellison 4 Claim rejected: no evidence of dominant purpose of creation of copy. 10 19/03/96 Request for further legal advice and confirmation of appropriateness of proposed arrangements Jeff Faure, Minter Ellison 2 Claim rejected: no evidence of dominant purpose of creation of copy. 11 19/03/96 Response to various enquiries contained in letter of 18 March 1996 Yvonne Goldingham, Eversheds 3 Claim rejected: no evidence of dominant purpose of creation of copy. 12 20/03/96 Advice on Australian Taxation Law Yvonne Goldingham, Eversheds 3 Claim rejected: no evidence of dominant purpose of creation of copy. 13 22/03/96 Legal advice on proposed financial arrangements Yvonne Goldingham, Eversheds 2 Claim rejected: no evidence of dominant purpose of creation of copy. 14 1/04/96 Confirmation of issue of Australian Visas and enclosing various documents (eg UK passports) Mr and Mrs Barnes 5 Claim rejected: no evidence of dominant purpose of creation of copy. Not for legal assistance. 15 2/04/96 Request for advice regarding Australian Taxation Law Jeff Faure, Minter Ellison 1 Claim rejected: no evidence of dominant purpose of creation of copy. 16 3/04/96 Advice in response to specific questions regarding CFC regime, FIF regime and general tax provisions Yvonne Goldingham, Eversheds 4 Claim rejected: no evidence of dominant purpose of creation of copy. 17 3/04/96 Request for advice regarding Australian Taxation Law Jeff Faure, Minter Ellison 3 Claim rejected: no evidence of dominant purpose of creation of copy. 18 4/04/96 Response/answers to Ms Golinghams facsimile/request of same date Yvonne Goldingham, Eversheds 3 Claim rejected: no evidence of dominant purpose of creation of copy. 19 12/04/96 Request for further information Jeff Faure, Minter Ellison 1 Claim rejected: no evidence of dominant purpose of creation of copy. 20 15/04/96 Response to queries raised in facsimile of 12 April 1996 Yvonne Goldingham, Eversheds 2 Claim rejected: no evidence of dominant purpose of creation of copy. 21 20/05/96 Letter enclosing new Wills Mr and Mrs Barnes 1 Claim rejected: no evidence of dominant purpose of creation of copy. On its face not for legal assistance.

22 21/06/96 Advice on possible cash flows John Barnes 3 Claim rejected: no evidence of dominant purpose of creation of copy. On face financial assistance not legal subject matter. 23 21/06/96 Advice regarding sale of company assets and proceeds of sale D Styles, Barclays Bank 2 Claim rejected: no evidence of dominant purpose of creation of copy. On its face for financial assistance.

24 30/07/96 Post completion check list John Barnes 9 Claim rejected: no evidence of dominant purpose of creation of copy. 25 2/08/96 Request for further information in preparation of UK tax returns Mr and Mrs J Barnes 2 Claim rejected: no evidence of dominant purpose of creation of copy. 26 6/02/97 Letter containing advice and attaching statements of account as at 5 February 1997 John Barnes 3 Claim rejected: no evidence of dominant purpose of creation of copy. 27 2/04/97 Provision of background information Greg Calder 1 Claim rejected: no evidence of dominant purpose of creation of copy. 28 7/04/97 Letter enclosing letter and forms received from general accident Mr and Mrs Barnes Claim rejected: no evidence of dominant purpose of creation of copy. 29 8/04/97 Handwritten notes of meeting between Mr and Mrs Barnes and Mr Calder NA 1 Claim rejected: no evidence of dominant purpose of creation of copy. On its face for financial advice. 30 9/04/97 Facsimile attaching copies of Eversheds questions to Minter Ellison Greg Calder and Paul Tayler 1 CLAIM ALLOWED on its face for legal advice. 31 28/04/97 Request for advice and provision of copy wills Greg Calder 9 CLAIM ALLOWED on face for legal advice. 32 12/05/97 Letter requesting further meeting Greg Calder 2 Claim rejected: not on its face a disclosure of information in connection with legal advice or assistance. 33 21/05/97 Notes taken during meeting between Mr Calder and Mr Tayler and Mr and Mrs Barnes NA 1 Claim rejected: no evidence of dominant purpose of creation of copy. On its face financial subject matter. 34 21/05/97 Answer for request for UK bank account details Greg Calder 1 Claim rejected: no evidence of dominant purpose of creation of copy. 35 10/06/97 Draft Deed of Indemnity NA 4 CLAIM ALLOWED: on its face taken with 36 is for legal advice. 36 11/06/97 Documents copied to Mr Calder by Mr Barnes together with request for further legal advice Greg Calder 6 CLAIM ALLOWED on face is for legal assistance.

37 11/06/97 Draft Deed of Indemnity NA 5 CLAIM ALLOWED on face is for legal assistance. 38 16/06/97 Response by Strachans regarding enquiries made of them by Mr Barnes Greg Calder 3 CLAIM ALLOWED: on its face sent for legal advice. 39 18/06/97 Enquiries regarding arrangements or proposed arrangements in respect of the Barnes' affairs Mr De Figueiredo 2 CLAIM ALLOWED: on its face for legal advice. 40 18/06/97 Letter of advice Mr and Mrs Barnes 1 CLAIM ALLOWED: on its face for legal advice. 41 18/06/97 Note of telephone attendance of Mr Calder on Mr Egglishaw regarding Mr and Mrs Barnes NA 1 CLAIM ALLOWED: on its face for legal advice.

42 18/06/97 Documents copied to Mr Calder Greg Calder 4 CLAIM ALLOWED: on its face for legal assistance. 43 19/06/97 Copy letters provided by Mr De Figueiredo to Mr Calder regarding the Barnes' affairs Greg Calder 5 CLAIM ALLOWED: on its face for legal assistance. 44 6/08/97 Letter from GLC to Cooper Parry enclosing various list of documents Messrs Coopers-Parry 1 Claim rejected: no evidence of dominant purpose of creation of copy. On its face not for legal assistance.

45 14/11/97 Solicitor's letter confirming sale of Rock Head Farm and Field House together with completion statement and bank account statement Mr J Barnes 3 Claim rejected: no evidence of dominant purpose of creation of copy. Reporting not for legal assistance.

46 1/10/98 Statement of Residential Complimentary Health Care Centre at Rock Head Farm, Glaisdale NA 3 Claim rejected: no evidence of dominant purpose of creation of copy. Financial feasibility. Not legal assistance on its face.

47 6/10/98 Notes of meeting between Mr Calder, Mr and Mrs Barnes and Mr Egglishaw NA 2 CLAIM ALLOWED: record of legal advice.

48 30/10/99 Letter confirming meeting with Mr Calder on 29 October 1998 attaching list of documents held in safe custody by Butcher Paull & Calder Joyce Barnes 3 Claim not pressed. 49 3/12/99 Summary of position and financial planning objectives Mr and Mrs Barnes 2 Claim rejected: no evidence of dominant purpose of creation of copy. On its face not for legal assistance.

50 22/03/00 Notes regarding meeting between Mr Barnes and Mr Calder NA 1 Claim rejected: no evidence of dominant purpose of creation of copy. 51 13/02/01 Discussion document regarding potential UK residency for Mr and Mrs Barnes Greg Calder 4 CLAIM ALLOWED: on its face for legal assistance. 52 5/02/02 Note of advice given during meeting between GLC and MB on 5 February 2002 NA 1 Claim rejected: on its face concerns financial matters. 53 17/04/03 Notes and instructions provided to Mr Calder to prepare for proposed meeting on 30 April 2003 Greg Calder 5 CLAIM ALLOWED: on its face for legal assistance. 54 20/06/03 Account for legal fees together with schedule detailing services provided Paul Tayler & Co Pty Ltd 3 Part of claim not pressed. Remainder of claim rejected: on its face not for purpose of legal assistance. 55 2/11/03 Up to date portfolio valuation together with receipt and payments schedules John Barnes 13 Claim rejected: no evidence of dominant purpose of creation of copy. On face financial reporting.

56 24/09/04 Enclosing letter of instruction regarding proposed Spanish property acquisition Greg Calder 3 CLAIM ALLOWED: on its face a request for legal advice or assistance.

57 27/09/04 Notes regarding proposed Spanish property purchase Greg Calder 6 Claim rejected: on face concerns financial matters.

58 11/10/04 On forwarding of letter from Mr Barnes to "Phillip" together with various other documents relating to Rock Head Farm Greg Calder 10 CLAIM ALLOWED: on its face a request for legal advice or assistance.

59 18/10/04 Advice regarding meeting relating to possible acquisition of Spanish property Greg Calder 1 CLAIM ALLOWED: on face for advice. 60 19/10/04 Handwritten notes following telephone conversation NA CLAIM ALLOWED: on face for legal advice. 61 20/10/04 Notes regarding proposed Spanish property purchase Greg Calder 10 CLAIM ALLOWED: on face for legal advice. 62 21/10/04 Notes following meeting NA 1 Claim rejected: no evidence of dominant purpose of creation of copy Not for legal advice on face.

63 1/11/04 Facsimile attaching UK company structure notes Greg Calder 4 CLAIM ALLOWED: on face for legal advice. 64 19/11/04 Email attaching email to Sam Lawson Greg Calder 2 CLAIM ALLOWED: on face for legal advice. 65 5/12/04 Structural diagram and figures noted in meeting with Mr and Mrs Barnes NA 2 CLAIM ALLOWED: on face for legal advice. 66 6/12/04 Provision of draft business plan for discussion in upcoming meeting Greg Calder 26 CLAIM ALLOWED: on face for legal assistance. 67 7/12/04 Comments for consideration at pending meeting with Greg Calder John Barnes 2 CLAIM ALLOWED: on face for legal assistance. 68 17/01/05 Response to request for advice John Barnes 5 CLAIM ALLOWED: on face for legal assistance. 69 18/01/05 List of questions regarding Defra grant application Greg Calder 1 Claim rejected: on its face no disclosure of information for legal advice or assistance. 70 18/01/05 Confirmation receipt of previous email Phillip De Figueiredo 2 Claim rejected: no evidence of dominant purpose of creation of copy. 71 20/01/05 Request for contact Greg Calder 1 Claim rejected: on its face no disclosure of information for legal advice or assistance. 72 20/01/05 Comment on earlier conversations John Barnes 1 Claim rejected: no evidence of dominant purpose of creation of copy. 73 21/01/05 Confirmation of intention not to proceed with Defra submission Mark Shelton 3 Claim rejected: no evidence of dominant purpose of creation of copy. 74 27/01/05 On forwarding of received facsimiles and confirmation of upcoming meeting Greg Calder 1 Claim rejected: on its face not a request for legal advice or assistance. 75 1/02/05 Outline of proposed development of holiday accommodation at Rock Head Farm, Glaisdale NA 1 Claim rejected: no evidence of dominant purpose of creation of copy. 76 9/02/05 Email attaching Baker Tilly document (see above) Strachans 1 Claim rejected: no evidence of dominant purpose of creation of copy. 77 25/02/05 Note of meeting between Mr Calder and Mr and Mrs Barnes NA 1 Claim rejected: on its face not a record of legal advice. 78 3/03/05 Letter enclosing account detailing legal services provided between 4 March 2004 and 25 February 2005 Barnes Development Pty Ltd 4 Part of claim not pressed. Remainder of claim rejected: on its face not a record of legal advice. 79 15/06/05 Instructions to solicitor Greg Calder 1 CLAIM ALLOWED: on its face a request for legal advice or assistance. 80 3/03/05 Letter enclosing account detailing legal services provided between 4 March 2004 and 25 February 2005 Barnes Development Pty Ltd 4 Claim rejected: on its face not a record of legal advice. 81 15/06/05 Instructions to solicitor Greg Calder 1 CLAIM ALLOWED: on its face a request for legal advice or assistance. 82 15/06/05 Request from solicitor to secretary to open new file Sheila Vink 1 Claim rejected: on its face not a request for legal advice or assistance. 83 Undated Resignation signed by Phillip Egglishaw Roker Trustees (Jersey) Limited Claim rejected: no evidence of dominant purpose of creation of copy. 84 Undated Appointment signed by Phillip Egglishaw NA Claim rejected: no evidence of dominant purpose of creation of copy. 85 Bundle of Standard Chartered Bank Statements from Jilette Company Limited for the period 29 October 1997 to 24 September 1998 NA 56 Claim rejected: no evidence of dominant purpose of creation of copy. 86 Undated Sanderstead Limited receipts and payment schedule comprising two pages covering the period 24 October 1997 to 2 July 1998 and two pages covering the period 24 October 1997 to 29 September 1998 NA Claim rejected: no evidence of dominant purpose of creation of copy. 87 Undated Sanderstead schedule of fees NA 1 Claim rejected: no evidence of dominant purpose of creation of copy. 88 Receipts and payment schedule comprising one page for the period 16 September 1997 to 30 September 1997, one page covering the period 1 October 1997 to 2 July 1998 and 1 page covering the period 1 October 1997 to 29 September 1998 NA Claim rejected: no evidence of dominant purpose of creation of copy. 89 Undated Pantheon Trust schedule of fees NA 1 Claim rejected: no evidence of dominant purpose of creation of copy. 90 Undated Net assets statement/current value NA 9 Claim not pressed. 91 11/09/96 Facsimile from Mr & Mrs Barnes to Paul Tayler together with a letter from Eversheds to Alan Woods Paul Tayler 3 Claim rejected: no evidence of dominant purpose of creation of copy. 92 7/02/97 Letter from John Barnes to Paul Paul Tayler 1 Claim rejected: no evidence of dominant purpose of creation of copy. 93 10/06/97 Telefax from Strachans to Greg Calder with enclosure Greg Calder 3 Claim rejected: on its face not a request for legal advice or assistance. 94 20/06/97 Deed of Indemnity 4 Claim rejected: no evidence of dominant purpose of creation of copy. 95 20/06/97 Telefax from Strachans to Greg Calder with enclosure Greg Calder 2 Claim rejected: on its face not a request for legal advice or assistance. 96 15/09/97 Letter and fee note from Strachans to Mr and Mrs Barnes Mr & Mrs Barnes 3 Claim rejected: no evidence of dominant purpose of creation of copy. 97 14/10/97 Two letters from Cooper Parry to Mr and Mrs Barnes enclosing receipts and payment schedule in respect of the Pantheon Trust Mr & Mrs Barnes 3 Claim rejected: no evidence of dominant purpose of creation of copy. 98 23/10/97 Letter from John Barnes to Steve Dosdale together with the enclosures referred to therein Steve Dosdale 5 Claim rejected: no evidence of dominant purpose of creation of copy. 99 29/12/97 Letter, fee note and detailed fee note from Strachans to Mr and Mrs Barnes Mr & Mrs Barnes 8 Claim rejected: no evidence of dominant purpose of creation of copy. 100 9/01/98 Letter enclosing Insurance Certificate, Schedule and Policy wording from Sanderstead Limited to Greg Calder Greg Calder 11 Claim rejected: on its face not a request for legal advice or assistance. 101 31/03/98 Letter from Strachans to Greg Calder with fee notes Greg Calder 10 Claim rejected: on its face not a request for legal advice or assistance. 102 12/07/98 Strachans fee notes Greg Calder 5 Claim rejected: on its face not a request for legal advice or assistance. 103 16/09/98 Letter from Strachans to Greg Calder with fee notes Greg Calder Claim rejected: on its face not a request for legal advice or assistance. 104 30/09/98 Letter from Quilter & Co to Phillip Egglishaw enclosing current valuations Phillip Egglishaw 14 Claim rejected: no evidence of dominant purpose of creation of copy. 105 20/10/98 Letter from Strachans to Greg Calder enclosing a copy of their fee note Greg Calder 5 Claim rejected: on its face not a request for legal advice or assistance. 106 22/12/98 Letter and fee note from Strachans to Mr Calder Mr & Mrs Barnes 7 Claim rejected: on its face not a request for legal advice or assistance. 107 17/10/03 Telefax from Strachans to John Barnes John Barnes 2 Claim rejected: no evidence of dominant purpose of creation of copy. 108 19/12/03 Telefax from Phillip de Figueredo to Greg Calder Greg Calder 2 Claim rejected: on its face not a request for legal advice or assistance. 109 12/01/04 Letter from John Barnes to Phillip Egglishaw Phillip Egglishaw 1 Claim rejected: no evidence of dominant purpose of creation of copy. 110 19/11/04 Email from John Barnes to Sam cc to Mark Shelton Sam Lawson 1 Claim rejected: no evidence of dominant purpose of creation of copy. 111 7/12/04 Telefax from Strachans to Greg Calder enclosing facsimile from Strachans to John Barnes Greg Calder 3 Claim rejected: on its face not a request for legal advice or assistance.

I certify that the preceding twenty-four (24) numbered paragraphs and schedule are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Stone and Siopis.

Solicitor for the Appellants: Butcher Paull & Calder

Counsel for the Respondent: Mr A. Robertson SC and Mr J. Allanson

Solicitor for the Respondent: Australian Government Solicitor

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