Commissioner of Taxation v PricewaterhouseCoopers - [2022] FCA 278 - FCA 2022 case summary — Zoe

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Commissioner of Taxation v PricewaterhouseCoopers

[2022] FCA 278

Federal Court of Australia|2022-03-25|Before: Moshinsky J

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Court

Federal Court of Australia

Decision date

2022-03-25

Before

Moshinsky J

Source

Original judgment source is linked above.

Judgment (166 paragraphs)

[1]

INTRODUCTION 1 The issue to be dealt with in these reasons is whether certain documents are subject to legal professional privilege. 2 The issue arises in the following way. 3 Flora Green Pty Ltd (Flora Green), JBS Holdco Australia Pty Ltd (JBS Holdco Australia) and JBS Australia Pty Ltd (JBS Australia) are Australian companies that are wholly owned (directly or indirectly) by JBS SA, a Brazilian multinational company listed on the Brazil Stock Exchange. JBS SA's Australian subsidiaries, including Flora Green, JBS Holdco Australia and JBS Australia, are referred to as the JBS Australia Group in these reasons. JBS SA and its subsidiaries, including the JBS Australia Group, are referred to as the JBS Global Group. Flora Green is the head company of a multiple entry consolidated (MEC) group, and JBS Holdco Australia and JBS Australia are subsidiary members of the group. 4 In February 2019, the Commissioner of Taxation (the Commissioner) commenced an audit of Flora Green, as head company of the MEC group. In the course of the audit, the Commissioner issued notices to produce documents under s 353-10 of Sch 1 to the Taxation Administration Act 1953 (Cth). The notices were issued to: (a) Glenn Russell, a partner of PricewaterhouseCoopers Australia (PwC Australia), which is a multi-disciplinary partnership that provided services to the JBS Australia Group; and (b) Flora Green. 5 In response to the notices, legal professional privilege was claimed by PwC Australia (on behalf of Flora Green or another member of the JBS Global Group) and by Flora Green or another member of the JBS Global Group over approximately 44,000 documents. 6 The Commissioner disputes the claims of privilege over approximately 15,500 documents (the Documents in Dispute). They comprise emails and attachments to emails brought into existence between 3 September 2013 and 6 May 2016 (the Relevant Period). 7 By the present proceeding, the Commissioner seeks declaratory relief to the effect that the Documents in Dispute are not subject to legal professional privilege. The respondents to the proceeding are PwC Australia, Flora Green, JBS Holdco Australia and JBS Australia. I will refer to Flora Green, JBS Holdco Australia and JBS Australia as the JBS Parties. 8 In his amended originating application, the Commissioner relies on three grounds, which can be summarised as follows: (a) The form of the engagements, reflected in the relevant 'Statements of Work' by which PwC Australia purported to provide legal services to the JBS Parties, did not establish a relationship of lawyer and client sufficient to ground a claim for legal professional privilege. (b) Further or alternatively, as a matter of substance, the services provided by PwC Australia to the JBS Parties pursuant to the engagements, were not provided pursuant to a relationship of lawyer and client sufficient to ground a claim for legal professional privilege. (c) Alternatively, the Documents in Dispute are not, or do not record, communications made for the dominant purpose of giving or obtaining of legal advice from one or more lawyers (of PwC Australia). 9 The first two grounds are general grounds which, if made out, would apply to all of the Documents in Dispute. In contrast, the third ground requires a document-by-document analysis to determine whether the document is subject to legal professional privilege. 10 In his amended originating application, the Commissioner seeks declarations as follows: (a) A declaration that the Documents in Dispute are not, and do not record, communications fairly referable to a relationship of lawyer and client. (b) Further and alternatively, a declaration that the Documents in Dispute are not, and do not record, communications which are protected by legal professional privilege. 11 A number of case management hearings took place at which there was discussion as to how best to manage the proceeding given the large number of Documents in Dispute. That discussion took place in the context of the overarching purpose of the civil practice and procedure provisions, namely to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible: see s 37M of the Federal Court of Australia Act 1976 (Cth). 12 Ultimately, the Court decided to set down for hearing a separate question relating to 100 sample documents: 50 to be selected by the Commissioner, and 50 to be selected by the respondents. By an order made on 18 December 2020 (as varied by an order made on 7 May 2021), the following question (the Separate Question) was ordered to be determined separately and in advance of the other questions in the proceeding: In respect of the 50 sample documents identified by the applicant and the 50 sample documents identified by the respondents, is the applicant entitled to the relief sought in the amended application? 13 The Separate Question was set down for hearing in circumstances where the Commissioner (and his lawyers) did not have access (and were not expected to have access) to the Documents in Dispute, the documents being the subject of extant legal professional privilege claims. Thus, while the respondents had access to the Documents in Dispute in selecting their 50 sample documents, the Commissioner did not. The Commissioner had access to a schedule that listed the documents and provided some details about them. But he did not have access to the documents themselves. The Commissioner was therefore required to select his 50 sample documents without seeing the documents. 14 In circumstances where the Commissioner and his lawyers did not have access to the sample documents, the Court appointed three barristers as amici curiae to assist the Court in relation to the Separate Question (the Amici Curiae). The respondents did not object to the Amici Curiae having access to the sample documents and to the confidential material relied on by the respondents in relation to the privilege issue. 15 I will refer to the 50 sample documents selected by the Commissioner in his revised list of sample documents and the 50 sample documents selected by the respondents in their revised list of sample documents as the Sample Documents. 16 The respondents have provided a copy of the Sample Documents to the Court, with the documents arranged in chronological order, and with an index of the documents. Where a Sample Document comprises an email and an attachment or attachments, the respondents have treated this as two or more documents. Accordingly, the respondents' index comprises 116, rather than 100, documents. 17 As already noted, PwC Australia is a multi-disciplinary partnership, as distinct from a traditional law firm. It provides both non-legal and legal services. Some of its partners are Australian legal practitioners and some are not. 18 For present purposes, the relevant services were generally provided by PwC Australia to the JBS Parties pursuant to an umbrella engagement agreement dated 26 February 2014 and signed on 16 July 2014 (the Umbrella Engagement Agreement) and nine statements of work (with dates ranging from 31 October 2014 to 22 April 2016) (the Statements of Work). Each Statement of Work identified the particular work to be carried out and described the services to be provided as "legal services". Each Statement of Work: (a) identified the "PwC team" that would carry out the work under two headings: "Australian Legal practitioners" (ALPs) and "Non legal practitioners" (NLPs); (b) contained a statement to the effect that "Non legal practitioners may assist in the provision of the legal services under the direction of the Australian legal practitioners"; and (c) contained a statement to the effect that, "[t]o facilitate delivery of the services you [that is, the JBS Parties] appoint the non legal practitioners who assist in the provision of the legal services as your agents for the purpose of communications to and from the legal services team. This includes giving instructions to and receiving legal advice and services from the Australian legal practitioners". 19 Further, some of the Statements of Work set out the charge-out rates for each Australian legal practitioner and each non-legal practitioner. It is notable that, in such cases, the charge-out rate for at least one of the non-legal practitioners was higher than the charge-out rate (or rates) for the Australian legal practitioner (or practitioners). 20 For the reasons that follow, I do not accept the general propositions encapsulated in grounds (a) and (b) of the Commissioner's amended originating application. In summary, I am not satisfied that, as a general proposition, no relationship of lawyer and client (sufficient to ground a claim for legal professional privilege) came into existence. I am satisfied that, at least in some relevant circumstances, a lawyer-client relationship existed between Mr Russell (an Australian legal practitioner) (and other Australian legal practitioners at PwC Australia) and one or more of the JBS Parties. 21 It is therefore necessary to consider, on a document-by-document basis, whether each Sample Document is subject to legal professional privilege. This requires consideration of whether the Sample Documents are, or record, communications made for the dominant purpose of giving or receiving legal advice. This question is to be determined by reference to the content of the document, its context, and the relevant evidence relating to the document. A critical part of the context in the present case is that the services were provided by a multi-disciplinary partnership and that the team carrying out the work comprised both lawyers and non-lawyers. Another contextual matter is the involvement of overseas PricewaterhouseCoopers (PwC) firms in many of the same projects (under separate engagements). At least in the case of PwC Brazil and PwC USA, the overseas firms were not able to provide legal advice and made clear that they were not doing so. 22 For the reasons that follow, I have concluded that many of the Sample Documents are privileged, but that many are not. The Annexure to these reasons sets out, for each of the documents listed in the respondents' index of 116 documents, my conclusion as to whether the document is privileged ("P"), partly privileged ("PP") or not privileged ("NP"). Of the 116 documents listed in the Annexure, I have concluded that: (a) 49 are privileged; (b) 6 are partly privileged; and (c) 61 are not privileged. 23 These conclusions have been reached through a process of consideration of each of the Sample Documents. In many cases, I have concluded that the communication does not satisfy the dominant purpose test, that is, I have concluded that the document is not (and does not record) a communication made for the dominant purpose of giving or receiving legal advice. 24 For ease of reference in these reasons, I will refer to the Sample Documents by reference to the number appearing in the first column of the Annexure. Thus, Document 1 is the first document in the Annexure, which is the applicant's Sample Document 18. 25 Parts of my reasons are confidential because they disclose the contents of documents over which privilege is claimed. In the circumstances, I will make an order that, subject to further order, the Court's reasons for judgment of the date of this order be published only to the respondents and the Amici Curiae, and be kept confidential (save that the orders, the sections headed "Introduction", "The Sample Documents", "The Hearing and Evidence" and "Conclusion", and the Annexure will be provided to the applicant and made available to the public). This is to enable the respondents to prepare, within a period of seven days, proposed redactions to the Court's reasons for judgment. The Court will then prepare and publish redacted reasons for judgment, which will be provided to the applicant and made available to the public.

[2]

THE SAMPLE DOCUMENTS 26 The process of identifying the 50 sample documents was somewhat iterative because, after the Commissioner had served a draft list of 50 sample documents (dated 23 April 2021), the JBS Parties withdrew their claims of privilege over some of those documents (and released them to the Commissioner). It was therefore necessary for the Commissioner to identify additional documents to complete his list of 50 sample documents. 27 Subsequently, after the Commissioner had filed and served his list of 50 sample documents (dated 14 May 2021), the JBS Parties withdrew their claims of privilege over some of those documents (and released those documents to the Commissioner). The Commissioner then identified potential replacement sample documents, but the JBS Parties withdrew their claims of privilege over many of those documents (and released them to the Commissioner). The Commissioner then selected replacement sample documents, and filed and served a revised list of 50 sample documents (dated 11 June 2021). The respondents also revised their list of 50 sample documents, and filed and served a revised list of sample documents (dated 6 May 2021). 28 Since the filing and service of the parties' revised lists of sample documents, the JBS Parties have withdrawn their claims of privilege over some of the documents in the revised lists (and released the documents to the Commissioner) and have withdrawn their claims of privilege over parts of other documents in the revised lists (and partially released those documents to the Commissioner). However, the revised lists of sample documents have not been further revised. Accordingly, the revised lists of sample documents (which form the basis of the index of Sample Documents in the Annexure to these reasons) contain some documents over which privilege is no longer claimed or over which privilege is no longer claimed over the whole of the document. I will identify the relevant documents in due course in these reasons.

[3]

THE HEARING AND EVIDENCE 29 The hearing of the Separate Question took place over five hearing days. Given restrictions in place due to the COVID-19 pandemic, the hearing was conducted by video-conference using Microsoft Teams. 30 The Commissioner relied on six affidavits of Suzanne Emery, an Acting Client Engagement Director in the Australian Taxation Office, dated 1 June 2020, 3 December 2020, 2 June 2021, 16 June 2021, 9 August 2021 and 2 September 2021. Ms Emery was not cross-examined. The Commissioner also tendered a number of documents. 31 PwC Australia called Mr Russell to give evidence. Mr Russell was PwC Australia's overall engagement partner for the JBS Australia Group during the Relevant Period. Mr Russell's evidence in chief was contained in an affidavit dated 19 July 2021, supplemented by some oral evidence. Mr Russell was cross-examined. To some extent, Mr Russell's evidence involved matters of legal characterisation (eg whether certain advice was legal advice). While I accept that Mr Russell holds the views that he expressed, ultimately, the correct legal characterisation is a matter for the Court to determine. I will discuss Mr Russell's evidence in more detail later in these reasons. 32 PwC Australia also relied on two affidavits of Andrew Korlos, an employee solicitor at PwC Australia. Mr Korlos was not cross-examined. 33 The JBS Parties called the following witnesses, who were cross-examined: (a) Maria Cristina de Almeida Manzano, the Legal Manager (Taxation) of JBS SA; and (b) Edison Alvares, the Chief Financial Officer of the JBS Australia Group. Ms Manzano answered questions in a straightforward manner. I accept her evidence. Mr Alvares answered questions clearly, concisely and candidly. I accept his evidence. 34 As noted above, the respondents provided a copy of the Sample Documents to the Court. I indicated during the hearing that I would read the Sample Documents, and I confirm that I have done so. 35 Parts of the hearing were conducted on a confidential basis, without the Commissioner or his lawyers or the public being 'present' (i.e. without the Commissioner or his lawyers or the public having access to the online hearing), because it was necessary to refer to the contents of the Sample Documents (in respect of which privilege was claimed). Senior counsel for the Commissioner accepted that this procedure was appropriate in the circumstances. 36 The Amici Curiae made submissions at the hearing, but did not cross-examine any witnesses. They were 'present' throughout the hearing, including the confidential parts. Parts of the Amici Curiae's (written and oral) submissions were provided on a confidential basis.

[5]

JBS Global Group 38 JBS SA is a Brazilian multinational company listed on the Brazil Stock Exchange. It is a global leader in the processing of animal protein and operates through five business units in more than 15 countries, including the United States of America and Australia. 39 The JBS Global Group conducts its operations in Australia through the JBS Australia Group, which includes Flora Green, JBS Holdco Australia and JBS Australia. Each of those three companies is wholly owned (directly or indirectly) by JBS SA. Until late 2015, the JBS Australia Group was held by an intermediate holding company in the United States, JBS US Holding, LLC (US Holding). In around September 2015, US Holding was migrated to Australia and renamed Flora Green. 40 The JBS Global Group also conducts operations through subsidiaries in the United States (JBS USA). 41 The key relevant personnel at the JBS Australia Group during the Relevant Period were: (a) Mr Alvares, who has been the Chief Financial Officer of the JBS Australia Group since October 2007. He is also the public officer and a director of Flora Green, a director of JBS Holdco Australia and a director of JBS Australia. (b) Jason Sinokula, who was the Tax Manager of JBS Australia from March 2008 until February 2016. Mr Sinokula reported to Mr Alvares until around January 2016. His responsibilities included managing the taxation affairs of JBS Australia. (c) Jose Marinho, who has been the Treasurer of JBS Australia since January 2014. (d) Jacinta Dale, the General Counsel and Company Secretary of JBS Australia, and an in-house lawyer at JBS Australia during the Relevant Period. Ms Dale was admitted as a solicitor of the Supreme Court of Queensland on 16 December 2005. 42 The key relevant personnel at JBS SA during the Relevant Period were: (a) Khalil Kaddissi, who was the Legal Director (Corporate and Tax) of JBS SA from September 2014 until late 2017. Mr Kaddissi is registered to practise law in Brazil. During the Relevant Period, Mr Kaddissi reported to the Chief General Counsel of JBS SA. His responsibilities included advising the JBS SA Board on corporate and taxation issues arising from transactions and proposals to be undertaken by the JBS Global Group. (b) Ms Manzano, who has been the Legal Manager (Taxation) of JBS SA since July 2014. Ms Manzano is registered to practise law in Brazil. During the Relevant Period, Ms Manzano reported to Mr Kaddissi. Her responsibilities included corporate restructuring and international corporate and tax matters. 43 The key relevant personnel at JBS USA during the Relevant Period were: (a) Denilson Molina, who has been the Chief Financial Officer of JBS USA since 2011. (b) Cindy Garland, who was the Taxation Manager of JBS USA from September 2002 until February 2017. During the Relevant Period, Ms Garland reported to Mr Molina. Her responsibilities included all tax matters concerning JBS USA. (c) Nicholas White, who was the General Counsel of JBS USA. He is admitted to practise law in the Supreme Court of Colorado.

[6]

PwC Australia 44 PwC Australia was registered as a multi-disciplinary partnership on 1 February 2008. PwC Australia describes a multi-disciplinary partnership as a partnership between legal and non-legal practitioners where the business of the partnership includes the provision of legal and non-legal services. PwC Australia is part of a global network of firms operating in 158 countries under the PricewaterhouseCoopers, or PwC, brand. Three offices of the global network are particularly relevant in this proceeding: PwC Brazil, PwC USA and PwC Australia. 45 Practitioners from PwC Australia who are referred to in documents that are relevant to this proceeding were either ALPs, NLPs or admitted as a lawyer but not holding a practising certificate during the Relevant Period. The key relevant personnel at PwC Australia during the Relevant Period were: (a) Mr Russell, who has worked at PwC Australia since February 2005 and has been a partner since July 2012. He has been the overall engagement partner for the JBS Australia Group since late 2013. Mr Russell was admitted as a solicitor of the Supreme Court of Queensland on 14 July 2014. On 15 September 2014, Mr Russell received an unrestricted principal practising certificate authorising him to engage in legal practice, subject to certain conditions, and subject to an undertaking to complete a practice management course. One of the conditions was that Mr Russell practise only in the area of taxation law. Following completion of the Queensland Law Society Practice Management Course - Partial Course in about December 2014, he received a new practising certificate that omitted the undertaking referred to in the earlier practising certificate. On 15 May 2020, Mr Russell received an email from the Queensland Law Society informing him that the conditions annexed to his unrestricted principal practising certificate had been removed. Mr Russell's professional background is set out in his affidavit. He became a partner of PwC Australia in July 2012, as an equity partner. During his time at PwC Australia (both before and after he became a partner) he has worked almost entirely in tax advisory work, which has included advising on corporate and international tax matters and the provision of consulting services in relation to the operation of the Income Tax Assessment Act 1997 (Cth) (ITAA 1997), the Income Tax Assessment Act 1936 (Cth) (ITAA 1936) and the Taxation Administration Act, and the provision of advice on Australia's various tax treaties for the avoidance of double taxation as incorporated into Australian legislation by the International Tax Agreements Act 1953 (Cth). Mr Russell sat within the tax practice at PwC Australia, which is known as the Tax and Legal Group, and within that group in an area known as Corporate Tax Queensland. (b) Neil Fuller, who was an international tax partner at PwC Australia from 1988 to July 2019. During the Relevant Period he was what was known in PwC as a "rover", being an experienced tax partner who was available to tax engagement partners as a resource on client matters, and was based in Sydney. Mr Fuller was an NLP during the Relevant Period. (c) Chris Stewart, who has worked at PwC Australia since at least 2005 and was a Director in Mr Russell's team during the Relevant Period. Mr Stewart was an NLP during the Relevant Period. (d) Theo Denovan, who has worked at PwC Australia since 2012 and has been a partner since around July 2016. He worked in International Tax Services, which was a group within the Tax and Legal Services line of business at PwC Australia, and was an NLP during the Relevant Period. (e) Tom Seymour, who is the Chief Executive Officer of PwC Australia. He was the Managing Partner of the Tax and Legal Business from July 2012 until June 2016. Mr Seymour was an NLP during the Relevant Period. (f) Ben Lannan, who has been a partner at PwC Australia since January 2010. He was a transfer pricing partner until June 2017 and is currently an International Trade partner. Mr Lannan was an NLP during the Relevant Period. (g) Stefan DeBellis, who has worked at PwC Australia since around July 1992. He was a Principal during the Relevant Period and is a stamp duty specialist. Mr DeBellis was an NLP during the Relevant Period. He was assisted by Rachael Cullen and Jess Fantin, who were ALPs during the Relevant Period. (h) Peter Dunn, who was a partner at PwC Australia from around 1999 until mid-2019. Mr Dunn was an NLP during the Relevant Period. (i) Benn Wogan, who was a Director - Legal at PwC Australia from July 2012 until February 2018. Mr Wogan was an ALP during the Relevant Period. He was located on the same floor as Mr Russell in PwC Australia's Brisbane office. (j) Zameer Ali, who was a Manager at PwC Australia from around 2012 and a Senior Manager from July 2015 until February 2018. Mr Ali was an ALP from 19 September 2014 to 18 April 2016.

[9]

PwC Australia's MDP Protocols for legal services 49 The evidence includes a PwC Australia document headed "MDP Protocols for legal services" dated 27 September 2013 (the MDP Protocols). The document is 38 pages in length, including Appendices A, B and C. The letters "MDP" refer to multi-disciplinary partnership. Mr Russell gave evidence during cross-examination that the protocols were part of a suite of policies that partners and staff are aware of, and that it is generally known that they need to be followed. 50 Section 2 of the MDP Protocols is headed "Legal Services" and states in part: Tax advisory services such as tax structuring advice and other advice about compliance with taxation legislation can be provided as either legal or non-legal services depending on the capacity in which the service is provided and the disclosure to the client about the nature of that service. (Emphasis added.) As the words highlighted in bold indicate, the MDP Protocols proceed on the basis that certain services can be provided as legal services or as non-legal services. I note that this is a recurrent theme in PwC Australia's documentation and in its affidavit evidence in this proceeding. 51 Section 2 of the MDP Protocols also includes the following: 2.5 Can non-legal Partners and staff be involved in the provision of legal services? Not all aspects of legal services must be provided by persons holding the requisite legal qualifications. For example, law graduates who have not yet been admitted to practice (known within the firm as 'Graduates') and paralegals, working under the supervision of AALP Partners or Principals, can perform tasks to assist an AALP to provide legal services. Provided the client has received the appropriate statutory disclosures regarding the involvement of non-lawyers in the delivery of particular legal services, where a Partner or staff member not listed on the AALP list provides assistance to a Partner or staff member on the AALP list to enable the latter to provide legal services to a client, that assistance can form part of the legal services. Any communications that the non-legal Partner or staff members have with the client in respect of matters which relate to the legal advice must be communicated to, or at the direction of, the AALP Partner or Principal. This is depicted in Appendix A (Correct Model). Importantly, advice given to a client by a non-lawyer (who is not acting at the direction of a lawyer) will not attract LPP. An AALP Partner or Principal must not perform an engagement to provide legal services if he or she does not possess sufficient relevant professional expertise to form his or her own view about the subject matter (with support from a relevant technical expert). For example, an AALP Partner or Principal who is not a transfer pricing specialist must not issue legal advice about transfer pricing prepared by a transfer pricing technical expert, unless he or she possesses sufficient relevant professional expertise to understand the advice and conclude that there is no reason to doubt the technical accuracy of its content. This can be likened to a litigation solicitor who briefs Counsel for an advice on evidence prior to a court hearing. Although the solicitor has extensive experience in the conduct of litigation, he or she is not a specialist in the rules of evidence. Nevertheless, the solicitor does possess sufficient relevant professional expertise to review Counsel's advice and consider whether there is any reason to doubt its accuracy (eg. failure to consider an essential part of the client's case or overlooking an obvious evidentiary requirement) before advising the client on evidence. Another example is where a partner in a traditional (non-MDP) law firm has been engaged by a corporate client to advise on the state of compliance by the client with all of the external legal and regulatory compliance obligations which the client is required to meet. The partner leading the engagement may enlist the support of a colleague who has specialist expertise in the area of environmental law. Although not possessing the same degree of specialist expertise, the lead partner's general experience with compliance work will allow him or her to review the specialist advice prepared by the colleague and form a view as to whether it is well-reasoned, complete and accurate. In contrast to the above examples, an AALP Partner or Principal who has little or no professional experience in providing tax advice (eg. a lawyer whose sole professional expertise is in the field of real property transactions) will not be able to provide a client with tax advice as a legal service (even with the support of a tax technical expert) because he or she will not possess sufficient relevant professional experience to understand and form a view about the technical accuracy of the tax advice. 52 Section 8 of the MDP Protocols is headed "Legal Professional Privilege" and states in part: Privilege will generally be available where a lawyer requests a third party expert to assist with a matter that is beyond the lawyer's own expertise but upon which the lawyer needs expert advice in order to provide legal advice to his or her client. The client is able to claim LPP over the expert's report/advice because it came into existence so that the lawyer could advise his or her client. This is what happens in the conduct of our MDP when an ALP who has been engaged by a client to provide legal advice, informs the client and obtains instructions that in order to provide that legal advice he or she will be calling on the assistance of expert tax practitioners who are not themselves lawyers but who will assist the ALP in providing legal advice or whose tax advice will be incorporated into and become an integral part of the legal advice. In so far as the non−legal team relay information to and from the client to the ALP providing legal services, they must do so as an agent of the client under the terms of the legal engagement letter or SoW in order for the client to be able to claim LPP in respect of those communications. I note that the particular engagements in issue in the present case appear to have been established with the above principles in mind. 53 Appendix A to the MDP Protocols sets out the following diagrams regarding the "correct model" and the "incorrect model" of engagement where a legal services engagement involves non-lawyers: Again, I note that the particular engagements in issue in this case appear to have been established with the above principles in mind.

[10]

Background to the relevant engagements 54 In early 2014, PwC Australia delivered a presentation to JBS SA regarding the services it proposed to provide in relation to the "global reorganisation" of the JBS Global Group. These services are described in the initial "global reorganizational proposal" as relating to a "tax structuring initiative" and the "selection of a more efficient global structure". The "global reorganizational proposal" contained no reference to services being provided as legal services, and expressly excluded drafting legal documentation from the scope of the services. 55 In late May 2014, Mr Russell and Mr Fuller went to Sao Paulo to meet with JBS SA, together with Mr Kulich from PwC USA and representatives from PwC Brazil. During these meetings, they discussed potential streams of work that PwC Australia could undertake for JBS SA. 56 Subsequently, Mr Russell received an email from Philippe Jeffrey, who was a partner in the Sao Paulo office of PwC Brazil, informing him that JBS SA had accepted parts of the proposal discussed during the meetings. 57 Mr Russell gave the following evidence in his affidavit regarding the proposed engagements of PwC Australia: 127. Before I learned that JBS wished to engage PwC Australia for this further work, I gave some consideration to the form of any engagement by JBS from an Australian perspective in respect of the work for which we had pitched in Sao Paulo. This included the possibility that JBS may prefer to have its tax advice provided as a legal service. In this regard, I refer to my discussion in paragraphs 32 to 34 above concerning the provision of tax advice. I considered that I should raise with JBS whether they wanted their tax advice provided as a legal service and obtain clarity from them as to this matter before any engagement on the contemplated work was entered into. 128. At this time, I was completing my practical legal training and anticipated that I would be very shortly admitted as a legal practitioner. I also considered that the work under the proposed engagement would go on for some extended period of time. As such, I anticipated that I would, within a fairly short period of time, be in a position to assume a lead partner role on a legal engagement, and provide legal advice under that engagement, if that was what JBS wanted. But until that time I could not enter into a Legal SoW. I therefore spoke to one of my partners who was a tax specialist and admitted as a lawyer, Chris McLean. The SoW to JBS to which I refer in paragraph 47(a) and 134 was then issued. While this engagement did not ultimately proceed, to the extent some preliminary work was done in relation to it, I became the relevant lawyer partner for that engagement after I was admitted. 129. In about late May 2014 or early June 2014, I attended a meeting at JBS' premises in Dinmore, Queensland, with Mr Alvares and Mr Lannan. During the meeting, I said to Mr Alvares words to the effect that: "I will soon be admitted as a solicitor. It is possible for tax advice provided by PwC Australia to be provided as a legal service, which would include the benefit of communications attracting legal professional privilege". He said to me words to the effect that he would think about it. 130. I subsequently had a telephone conversation with Mr Alvares, which to the best of my recollection occurred in early June 2014, in which I said words to the effect: Me: "Do you remember how we recently had a conversation about potentially providing tax advice as legal advice and the benefits of that? Whilst I have not yet been admitted, if you are interested in our Australian work being provided as legal advice, would you like me to bring in a colleague who is a lawyer ?" Mr Alvares: "Yes, let's do that." 131. I cannot now recall if I mentioned Mr McLean by name, but it is likely that I did so. 132. Following my discussion with Mr Alvares, it was my understanding that the JBS Australia Group wished to obtain tax advice as a legal service. Going forward, when I prepared SoWs for tax advice for the JBS Australia Group (or for JBS entities outside Australia), I prepared them as Legal SoWs. To the best of my recollection, no one at JBS ever suggested that these services should not be provided as legal services. I did not consider this to apply to the due diligence work undertaken by PwC Securities or to compliance work (of the kind done under the non-legal SoW dated 18 December 2015 to which I refer at paragraph 45). (Emphasis added.) 58 Mr Alvares gave evidence in his affidavit (which I accept) that, after June or July 2014, he expected that Mr Russell would be giving him legal advice under future engagements and that it would be subject to legal professional privilege. 59 On 10 June 2014, Mr Russell sent an email to Gustavo Carmona (PwC Brazil), copied to Neil Fuller (PwC Australia), John Kulich (PwC USA), Robert Stout (PwC USA), Theo Denovan (PwC Australia), Philippe Jeffrey (PwC Brazil) and Mark Conomy (PwC Brazil) with the subject line, "JBS work - adm aspects". The email stated: Hi Gustavo, We would like to set up the Australian component of the work as a legal engagement, which will need a separate Australian engagement letter. Undertaking an engagement of this nature as a legal services is highly preferred and common in Australia. We would recommend that this separate engagement letter is addressed to and signed by both JBS Brazil and JBS Australia. Contracting in this way will also simplify matters from an Australian GST perspective − i.e. will ensure that JBS (who will be paying for the Australian component of the work) will be able to claim input tax credits for the GST that will apply to the work. Let me know if you would like to discuss in more detail. Regards Glenn 60 Subsequently, on the same day, Mr Russell sent the following further email: Gustavo, The other advantage of setting the engagement up as a legal engagement is that provided certain protocols are followed, legal advice is privileged and therefore the Australian Taxation Office should not be able to obtain copies of it in the event of any ATO review activity. Mark will be able to explain in more detail, otherwise let me know if you would like to discuss further. Regards Glenn (Emphasis added.)

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The Umbrella Engagement Agreement 61 Under cover of a letter dated 26 February 2014, PwC Australia provided a proposed umbrella engagement agreement to JBS Holdco Australia. The covering letter was from Mr Russell to Mr Alvares. Mr Alvares signified his acceptance of the terms by signing the letter on behalf of JBS Holdco Australia on 16 July 2014. Thus, the Umbrella Engagement Agreement was entered into on that date. 62 The Umbrella Engagement Agreement provided in part: 1. Our work This agreement sets out the terms on which we will provide you with tax and legal services. When you request us to provide services under this agreement, we will agree with you: • the scope of the services we will provide • the members of the Group who are our clients for those services • your responsibilities relating to the services • the basis on which we will calculate our fee for the services • details of the proposed timeframe for providing the services • details of the PwC team providing the services • any special terms agreed between us in relation to the services. We will normally agree these with you in a Statement of Work or other correspondence we agree in relation to our services (SoW). If we perform tax services at your request without a SoW or separate engagement letter the terms of this agreement apply to those services. Legal services will only be provided under the terms of an SoW or separate engagement agreement. The services will be provided solely for the members of the Group described as clients in the relevant SoW or other agreement. A client named in a SoW may disclose a deliverable provided under the SoW to members of the Group who are not clients under the SoW. The disclosees who are not clients under the SoW each agree that they will not: (a) rely on the deliverable; (b) bring any claim against us in relation to the deliverable; or (c) disclose the deliverable except as required by law. The services we are able to provide under this agreement include: • income tax consulting • assisting you with your income tax compliance obligations • assisting you and your expatriates in relation to their taxation affairs • Goods and Services Tax (GST) services • assisting you with R&D matters • transfer pricing services • assisting you with customs matters • stamp duty services • assisting you with employment tax matters • legal services. In identifying the types of services in this way, the agreement (at least arguably) distinguished between legal services (being the last item in the above list) and the other types of services in the list. 63 The Umbrella Agreement contained a paragraph with the subject, "Legal services or non-legal services". This stated that services would not be provided as legal services "unless specifically disclosed as such under an SoW [statement of work] or engagement letter". It was also stated that services which are not provided as legal services may still be provided by partners or professional staff of PwC Australia who are ALPs, who are acting in a capacity other than as an ALP (for example, as a registered tax agent). It was stated that, in those circumstances, the rights and obligations of the parties would be different from those arising had the services been provided as legal services. 64 During cross-examination of Mr Russell, the following exchange took place about the tax advice services provided by Mr Russell to JBS Australia before and after he was admitted as a lawyer (in July 2014): [SENIOR COUNSEL FOR THE COMMISSIONER]: And until you became a lawyer in mid-2014, you were providing that advice in your role at PwC as a tax adviser, weren't you?---Yes, I was. And would you say you were providing it in your role as an accountant tax adviser?---To the extent that I have an accounting designation, that - that would be correct, but - yes. Right. And once you became a lawyer, you continued to give the same type of advice, didn't you?---To some extent, yes. So the only difference was that now you were a lawyer, you say you were able to provide the same advice as legal advice and not as non-legal advice; is that right?---It is, yes.

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The Statements of Work 88 The nine statements of work (or SoWs) that are directly relevant for present purposes are referred to in these reasons as the "Statements of Work". I note that in some of the affidavits these statements of work are referred to as the "Contested SoWs". The key details are: (a) Statement of Work between PwC Australia and JBS Australia dated 31 October 2014 with the description "Project Twiggy Legal Services" (Statement of Work No 1). (b) Statement of Work between PwC Australia and JBS Australia dated 13 November 2014 with the description "Project Twiggy Legal Services - Income tax and stamp duty advice" (Statement of Work No 2). (c) Statement of Work between PwC Australia and JBS Australia dated 9 December 2014 with the description "Project Twiggy Legal Services - Income tax and stamp duty advice (Phase 2)" (Statement of Work No 3). (d) Statement of Work between PwC Australia and JBS Australia dated 15 January 2015 with the description "Global Restructure Project - Australian Income Tax and Stamp Duty Legal Advice" (Statement of Work No 4). This Statement of Work was signed by Mr Sinokula on behalf of JBS Holdco Australia on 16 January 2015. (e) Statement of Work between PwC Australia and JBS SA dated 25 June 2015 with the description "Legal services in relation to a global reorganisation of the JBS group". The scope of the Statement of Work dated 25 June 2015 was expanded to include specified accounting services by an email from Mr Russell and Mr Fuller to Mr Alvares dated 25 July 2015. This Statement of Work, as extended, is referred to as Statement of Work No 5. (f) Statement of Work between PwC Australia and JBS Australia dated 31 August 2015 with the description "Legal Services - Project Twiggy Phase 2" (Statement of Work No 6). This Statement of Work was signed by Mr Alvares on behalf of JBS Australia. (g) Statement of Work between PwC Australia and JBS Australia dated 11 September 2015 with the description "Legal Services - Global Regional Alignment Project" (Statement of Work No 7). This Statement of Work was signed by Mr Alvares on behalf of JBS Australia. (h) Statement of Work between PwC Australia and JBS Australia dated 18 April 2016 with the description "Legal Services - Assistance with Return of Capital" (Statement of Work No 8). (i) Statement of Work between PwC Australia and JBS SA dated 22 April 2016 with the description "Legal Services - Project Chelsea". This Statement of Work was signed by Mr Kaddissi on behalf of JBS SA on 27 April 2016 (Statement of Work No 9). 89 Each of the Statements of Work: (a) identified the client as JBS Australia (save for Statements of Work Nos 5 and 9); (b) was expressly stated to be for the provision of legal services; (c) provided that the services the subject of the Statement of Work would be provided by identified ALPs including, but not limited to, Mr Russell (other than in the case of the Statements of Work Nos 1 and 5, where Mr Russell was the only ALP referred to); (d) distinguished between the PwC personnel who would provide the services as either ALPs or NLPs; (e) stated that "[n]on legal practitioners may assist in the provision of legal services under the direction of the Australian legal practitioners"; (f) included a "Communications Protocol" in the following terms: Communications Protocol To facilitate delivery of the services you appoint the non legal practitioners who assist in the provision of the legal services as your agents for the purpose of communications to and from the legal services team. This includes giving instructions to and receiving legal advice and services from the Australian legal practitioners. We will communicate with you regarding our legal services and provide our legal advice separately from communications and advice regarding any non-legal matters. (g) incorporated the additional terms of business for legal services set out in the Umbrella Engagement Agreement; and (h) was sent under cover of a letter stating that the Statement of Work took precedence over the Umbrella Engagement Agreement to the extent of any inconsistency. 90 Each Statement of Work set out in broad terms the nature and ambit of the services that PwC Australia was to provide under the Statement of Work. These sections of the Statements of Work are important for present purposes and are set out below, in addition to certain other parts of the Statements of Work. 91 During cross-examination, Mr Alvares was asked questions about the distinction between legal statements of work and non-legal statements of work: [SENIOR COUNSEL FOR THE COMMISSIONER]: Yes. Now, when you are entering into a statement of work, you have to make a decision whether it's going to be called a legal statement of work or a non-legal statement of work; are you aware of that?---No, I am not, to be honest. Right. So you don't - you're not aware that there is two types of statements of work, what they call an SOW. There's a legal SOW and a non-legal SOW?---No, for me, they're all the same.

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Statement of Work No 1 92 Statement of Work No 1 (Project Twiggy Legal Services) included the following covering letter dated 31 October 2014: Dear Edison [Mr Alvares] This Statement of Work (SoW) sets out the legal services we will provide under our Umbrella Engagement Agreement with JBS Holdco Australia Pty Ltd dated 16 July 2014. Terms defined in the Umbrella Engagement Agreement have the same meaning when used in this SoW, except where otherwise indicated. If anything in this SoW is inconsistent with the Umbrella Engagement Agreement, this SoW takes precedence. JBS Australia Pty Ltd (Client or you) is our client under this SoW. If you have any questions in relation to this document, please call me on [number omitted] or Neil Fuller on [number omitted]. Yours sincerely Glenn Russell Partner Each of the Statements of Work included a similar covering letter. 93 The Statement of Work identified the scope of the services to be provided as follows: 1 Scope of our services PwC is a regulated Multi-Disciplinary Partnership in certain States of Australia. The services described in this letter are legal services regulated by the Legal Profession Act 2004 (NSW) or a corresponding law (as defined in the Act) and the 'additional terms of business for legal services' in the Umbrella Engagement Agreement apply. The scope of the legal services we will provide under this SoW is set out below. This document is also an offer to enter into a costs agreement with you for the legal services. The additional terms of business for legal services include important disclosures about legal costs. lf we become aware of a substantial change to any disclosure regarding costs that we have made to comply with the Act or a corresponding law, we will disclose the change in writing as soon as reasonably practicable after we become aware of it. The scope of the services we will provide is set out below (the Services) in two phases. Any amendment to this scope must be agreed in writing between us. 1.1 Phase 1 - [Redacted] [Redacted]. [Redacted]. 1.2 Phase 2 - [Redacted] [Redacted]. [Redacted]. 94 Section 2 was headed "Fees and expenses" and set out estimated costs for different phases of the work. This was followed by a table, setting out the hourly rate for various personnel (and categories of personnel): 95 A similar form of table appeared in several of the other Statements of Work. 96 Section 3 was headed "PwC team" and was in the following terms: The services will be provided by the following Australian legal practitioners. Australian legal practitioners Name Role Telephone Email Glenn Russell Legal Partner [number omitted] [address omitted]

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Statement of Work No 2 98 Statement of Work No 2 (Project Twiggy Legal Services - Income tax and stamp duty advice) stated (in Section 1) that, broadly, the scope of work covered advice in relation to: income tax implications of Project Twiggy; and stamp duty advice in relation to Project Twiggy. Sections 2 and 3 then stated: 2 Income Tax Our income tax advice will be provided in two phases. The services to be provided under each phase are set out below. 1.1 Phase 1 - [Redacted] This Phase of work will include all work undertaken to the point of signing the SPA. Phase 1 will include work and advice necessary to determine, in principle, [redacted]. [Redacted]. [Redacted]. - [redacted] - [redacted] - [redacted] - [redacted] - [redacted] - [redacted] We will work closely in conjunction with PwC in the US in undertaking this Phase of work. At the conclusion of our work, [redacted]. Our work will also involve us participating in [sic] Scope exclusions Excluded from the scope of our work is the following: - Accounting advice - Advice in respect of the Corporations Law, or any other legal advice that does not relate to income tax. - Reviewing or commenting upon any financial model developed - Valuation advice 1.2 Phase 2 - [Redacted] [Redacted]. [Redacted]. 3 Stamp Duty Background and assumptions The scope of our stamp duty advice will be based on the understand that: • [Redacted]. • [Redacted]. • [Redacted]. Work to be performed Our stamp duty services will be provided in three phases. The services to be provided under each phase are set out below. 3.1 Phase 1 - [Redacted] • [Redacted]; • [Redacted]; • [Redacted]; and • [Redacted]. 3.2 Phase Two - [Redacted] • [Redacted]; • [Redacted]; • [Redacted]; • [Redacted]; • [Redacted]; • [Redacted]; • [Redacted]; • [Redacted]; • [Redacted]; • [Redacted]; and • [Redacted]. 3.3 Phase Three - [Redacted] • [Redacted]; • [Redacted]: o [redacted]; o [redacted]; o [redacted]; o [redacted]; • [Redacted]; • [Redacted]; and • [Redacted]. Deliverable • [Redacted]; and • [Redacted]. 99 Section 4 was headed "Fees and expenses" and included a table listing various PwC personnel (and categories of personnel) and their hourly charge-out rates. Section 5 was headed "PwC team" and comprised two tables: a table listing four ALPs, and a table listing five NLPs. Section 6 was headed "Communications Protocol" and had the same text as referred to above.

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Statement of Work No 3 100 Statement of Work No 3 (Project Twiggy Legal Services - Income tax and stamp duty advice (Phase 2)) stated (in Section 1) that, broadly, the scope of the work covered advice in relation to: income tax implications of implementing the Project Twiggy acquisition structure; and stamp duty advice in relation to Project Twiggy implementation. Sections 2 and 3 stated in part: 2. Income Tax Our income tax advice will be provided in two phases. The services to be provided under each phase are set out below. 1.1 Phase 2 - [Redacted] [Redacted]. Our work will include advice on the following components: 1) [Redacted] 2) [Redacted] 3) [Redacted] 4) [Redacted] 5) [Redacted] 6) [Redacted] 7) [Redacted] 8) [Redacted] We will work closely in conjunction with PwC in the US in undertaking this Phase of work. At the conclusion of our work, we issue a detailed letter of advice summarising our work. … 3 Stamp Duty Background and assumptions The scope of our stamp duty advice will be based on the understanding that: • [Redacted]. • [Redacted]. • [Redacted]. Work to be performed Our stamp duty services will be provided in three phases. The services to be provided under each phases Two and Three are set out below. 3.1 Phase Two - [Redacted] • [Redacted]; • [Redacted]; • [Redacted]; • [Redacted]; • [Redacted]; • [Redacted]; • [Redacted]; • [Redacted]; • [Redacted]; • [Redacted]; and • [Redacted]. 3.3 Phase Three - [Redacted] • Preparation of a detailed estimate of the landholder duty payable in each relevant jurisdiction, ensuring duty is quarantined from non-dutiable items, duty is confined to the transaction value and any exclusions for interests previously held are properly claimed; • Preparation and lodgement of: o [redacted]; o [redacted]; o [redacted]; o [redacted]; • [Redacted]; • [Redacted]; and • [Redacted]. Deliverable • [Redacted]; and • [Redacted]. 101 Section 4 was headed "Fees and expenses" and adopted a similar form to that section in the Statements of Work described above. Section 5 was headed "PwC team" and identified four ALPs and five NLPs. The Communications Protocol was set out in section 6.

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Statement of Work No 4 102 Statement of Work No 4 (Global Restructure Project - Australian Income Tax and Stamp Duty Legal Advice) stated (in Section 1) that, broadly, the scope of work covered advice in relation to Australian income tax and stamp duty issues associated with the global restructure executed by the JBS Global Group in December 2014. Sections 2 and 3 stated: 2. Income Tax We have been asked to undertake the following specific items of work under this engagement: 1) Preparation of calculations required to be undertaken as a result of the JBS Australia multiple entry consolidated (MEC) tax group deconsolidating. These calculations will result in the quantification of any tax payable as a result of the deconsolidation. 2) Preparation of Allocable Cost Amount (ACA) calculations for a potential tax consolidation of the JBS Australia Group. We will also prepare a summary of the calculations that outlines the potential benefits and costs of consolidating for tax purposes. 3) Planning/Structuring advice associated with the issues associated with the broader Global Restructure. 3 Stamp Duty The scope of this engagement will also cover any advice required in relation to potential Australian Stamp Duty issues associated with the work that we will assist JBS with in relation to its global restructure. 103 Section 6 was headed "Fees and expenses" and set out a table of PwC personnel (and categories of personnel) and their charge-out rates: 104 The "PwC team" was set out in section 7. This section was as follows: Australian legal practitioners Name Role Telephone Email Glenn Russell Legal Partner [number omitted] [address omitted] Zameer Ali Manager (Income Tax) [number omitted] [address omitted] Rachael Cullen Director (Stamp Duty) [number omitted] [address omitted] Jess Fantin Manager (Stamp Duty) [number omitted] [address omitted]

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Statement of Work No 5 107 Statement of Work No 5 (Legal services in relation to a global reorganisation of the JBS group) stated (in Section 1) that, broadly, the scope of work covered advice in relation to Australian income tax and stamp duty issues associated with the global reorganisation of the JBS Global Group, [redacted]. The work to be performed was then identified: We will provide legal services as requested by you. In particular, we will provide legal services relating to the proposed global reorganisation of the JBS Group and any other transactions associated with the reorganisation. We expect that this will include [redacted]: • [Redacted] • [Redacted] • [Redacted] • [Redacted] • [Redacted] • [Redacted] 108 Section 2 was headed "Fees and expenses" and identified PwC personnel (and categories of personnel) and charge-out rates. Section 3 described the "PwC team" - the only ALP was Mr Russell; two NLPs were identified. Section 4 was the "Communications Protocol", in the same form as set out above. 109 The email dated 25 July 2015 from Mr Russell and Mr Fuller to Mr Alvares extended the scope of the engagement as follows: Following the recent meeting in the US between JBS and PwC, PwC was requested to expand the scope of the originally agreed tax advice to include certain accounting assistance. The scope of this work is as follows: Scope of the accounting services The accounting services [we] will provide under this scope extension include: • reviewing multiple iterations of the draft steps plans, discussions with PwC US and PwC global tax teams • consideration of applicability of fair value accounting on incorporation of Australian newco's when assets and investments are contributed by the parent for equity; • consideration of the requirements in the literature for parent entity accounting when a subsidiary recognises gains/losses • consideration of distribution accounting and gain recognition where subsidiaries make distributions to a parent • preparation of summary of accounting concepts and issues regarding the Australian entities within the proposed re-organisation plan We will not be commenting on the commercial or other desirability of transactions or accounting treatment. Our work will not constitute an audit conducted in accordance with generally accepted auditing standards, or other attestation or review services. Accordingly, we will not express an audit opinion or provide any other form of assurance under the terms of this engagement. The initial scope of work that we will perform is the provision of a summary outline setting out accounting issues, concepts and considerations under Australian Accounting Standards for the proposed re-organisation of the JBS group as set out in the draft steps plan circulated by JBS in the individual Australian JBS group companies.

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Statement of Work No 6 110 Statement of Work No 6 (Legal Services - Project Twiggy Phase 2) included the following statement of the work to be performed: We will provide legal services as requested by you. In particular, we will provide legal services relating to Phase 2 of Project Twiggy. In the course of providing these legal services we may seek advice on accounting and tax issues from non-legal members of PwC. To the extent that our services include tax compliance services such as the documentation and preparation of taxation returns and related filings, these will not attract legal professional privilege. Only communications and documents created for the dominant purpose of providing legal advice can attract legal professional privilege. Legal Services 1. Income Tax • [Redacted]. • [Redacted]. • [Redacted]. • [Redacted]. 2. Corporate Legal Services • [Redacted]. • [Redacted]. • [Redacted]. • [redacted;. • [Redacted]; • [redacted]; and • [redacted]. • [Redacted]. 3. Accounting • Accounting advisory assistance on the proposed transaction steps to undertake Project Twiggy Phase 2. Our work will not constitute an audit conducted in accordance with generally accepted auditing standards, or other attestation or review services. Accordingly, we will not express an audit opinion or provide any other form of assurance under the terms of this engagement. The accounting services outlined in this letter will be prepared for JBS Australia Pty Ltd for its sole purpose in the context of assisting the management in formulating the accounting treatment for the relevant subject confirmed in this SoW. However, we acknowledge that you will provide a copy of the related accounting deliverables to your auditor. Deliverable Our deliverables in respect of this engagement may include the following: • Preparation of the detailed step plan. • Formal tax opinions - for example, in relation to tax consolidation outcomes and the application of Australia's General Anti-Avoidance Provisions. • Drafting all Australian legal documents to complete the step plan and completion assistance. • Accounting advice in the form of a technical memorandum. • Meetings and discussions with relevant stakeholders. 111 Section 3 was headed "Fees and expenses" and set out an overall fee for the work. Section 4 was headed "Our team" and set out two tables - the first with the names of three ALPs; the second with the names of six NLPs. Immediately after those tables, there was a heading "Communications Protocol", with the text set out above.

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Statement of Work No 7 112 Statement of Work No 7 (Legal Services - Global Regional Alignment Project) outlined the following work to be performed: We will provide legal services as requested by you. In particular, we will provide legal services relating to the proposed global regional alignment of the JBS Group and any other transactions associated with the group reorganisation. In the course of providing these legal services we may seek advice on accounting and tax issues from non-legal members of PwC. Legal Services 1. Income Tax • [Redacted]. • [Redacted]. • [Redacted]. • [Redacted]. • [Redacted]. • [Redacted]. • [Redacted]. • [Redacted]. • [Redacted]. • [Redacted]. • [Redacted]. 2. Stamp Duty • [Redacted]. • [Redacted]. 3. Accounting • Accounting advisory assistance on the proposed transaction steps to undertake the global restructure. • Accounting balance sheet modelling of the proposed steps. • Attendance at discussions with your auditor in relation to the outcomes from our accounting advice. Our work will not constitute an audit conducted in accordance with generally accepted auditing standards, or other attestation or review services. Accordingly, we will not express an audit opinion or provide any other form of assurance under the terms of this engagement. The accounting services outlined in this letter will be prepared for JBS Australia Pty Ltd for its sole purpose in the context of assisting the management in formulating the accounting treatment for the relevant subject confirmed in this SoW. However, we acknowledge that you will provide a copy of the related accounting deliverables to your auditor. 4. Corporate Legal Services • [Redacted]. • [Redacted]. • [Redacted]. • [Redacted]. • [redacted]; • [redacted]; • [redacted]; • [redacted]; • [redacted]; • [redacted]; • [redacted]; • [redacted]; • [redacted]; • [redacted]; and • [redacted]. • [Redacted]. To the extent that our services include tax compliance services such as the documentation and preparation of taxation returns and related filings, these will not attract legal professional privilege. Only communications and documents created for the dominant purpose of providing legal advice can attract legal professional privilege. Deliverable Our deliverables in respect of this engagement may include the following: • Preparation of the detailed … global regional alignment step plans, • Formal tax opinions - for example, in relation to financing and the application of Australia's General Anti-Avoidance Provisions. • Transfer Pricing documentation in the form of an Arm's Length Debt Test Report and/or interest rate benchmarking report. • Stamp duty advice on the transaction steps and lodgements for the relevant Offices of State Revenue. • Drafting all Australian legal documents to complete the step plan and completion assistance. • Accounting advice in the form of a technical memorandum. • Meetings and discussions with relevant stakeholders. 113 During cross-examination, Mr Russell said that this Statement of Work described a very large amount of work. He said it was the largest Statement of Work in terms of work required and fees charged over the Relevant Period. 114 Section 2 was headed "Fees and expenses" and set out a fixed fee for the work (US$2,040,843 including GST). Section 4 was headed "Our team" and comprised two tables - the first with the names of three ALPs; the second with the names of eight NLPs. The three ALPs were Mr Russell (a Legal Partner), Benn Wogan (a Legal Director) and Zameer Ali (a Senior Manager). The NLPs included Neil Fuller (International Tax Partner), Stefan DeBellis (Stamp Duty Partner), Ben Lannan (Transfer Pricing Partner), Jonathon Moss (Accounting Partner), Chris Stewart (Director) and Theo Denovan (International Tax Director). Although not named, Mr Dunn, an NLP, also assisted with the tax advice in connection with this Statement of Work. These tables were followed by the "Communications Protocol", which had the same text as set out above.

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Statement of Work No 8 115 Statement of Work No 8 (Legal Services - Assistance with Return of Capital) included the following description of the work to be performed: The scope of our work is as follows. We will provide legal services as requested by you. In particular, we will provide legal services relating to the proposed return of capital distributions from JBS Australia Pty Ltd to JBS Ansembourg Holding Sarl through a series of interposed entities, repayment of various notes and any other associated transactions. In the course of providing these legal services, we will seek advice on accounting and tax issues from non-legal members of PwC. Legal Services 1. Australian Income Tax • [Redacted]. • [Redacted]. • [Redacted]. 2. Irish Income Tax • [Redacted]. • [Redacted]. 3. Luxembourg Income Tax • [Redacted]. • [Redacted]. • [Redacted]. • [Redacted]. • [Redacted]: • [Redacted]; • [Redacted]; and • [Redacted]. 4. Australian Accounting • Consideration of the accounting literature relevant to single entity accounting on a historic cost basis as to whether Baybrick Pty Ltd (Baybrick) and Industry Park Pty Ltd (Industry Park) can recognise net income arising from a distribution made by the trading subsidiaries for the purpose of determining whether a distribution can be made. • Specific consideration of the impairment literature and potential automatic triggers of impairment testing as Baybrick and Industry Park have initially recognised the investment in the Australian trading companies at fair value. • Single entity accounting for the settlement of the outstanding loan notes done as part of the distribution (i.e whether there is a gain/loss (or not) arising on settlement). • Advice considering the above, addressing the question whether Baybrick/Industry Park are required to assess the carrying value of investments in subsidiaries for impairment if a distribution is paid. Additionally, consideration of the single entity income statement impact of any potential impairment recognised on those subsidiary investments. 5. Australian Corporate Legal and Documentation • [Redacted]. • [Redacted]. • [Redacted]. • [Redacted]: • [Redacted]; • [Redacted]; • [Redacted]; • [Redacted]; and • [Redacted]. • [Redacted]. • [Redacted]: • [Redacted]; • [Redacted]; • [Redacted]; • [Redacted]. To the extent that our services include tax compliance services such as the documentation and preparation of taxation returns and related filings, these will not attract legal professional privilege. Only communications and documents created for the dominant purpose of providing legal advice can attract legal professional privilege. Deliverable Our deliverable in respect of this engagement will be: • [Redacted] • [Redacted] • [Redacted] • [Redacted] • [Redacted] • [Redacted] • [Redacted] 116 Section 3 was headed "Fees and expenses" and set out estimated fees for various components of the work. Section 4 was headed "Our team" and included two tables - one with three ALPs; the other with five NLPs. The "Communications Protocol", with the text set out above, followed these tables.

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Communications referring to privilege 118 On 17 February 2015, Jess Fantin (PwC Australia) sent an email to Stefan DeBellis and Glenn Russell (both of PwC Australia) with the subject line, "DMS Sign Off - JBS". The email included hyperlinks to a series of documents. The email stated: Stefen and Glenn, Can you please sign off the below documents in DMS for JBS? Glenn I have included you in order to claim privilege and as you are project partner for stamp duty purposes. Kind regards Jess (Emphasis added.) 119 On 22 August 2015, John Kulich (PwC USA) sent an email to a group of people with the subject line "JBS update - agreement in principle". The email stated in part: Last night I spoke with Denilson and Khalil. After much discussion, their request was for a fixed fee global engagement of $7.2M - which equates to an 18% further discount across the board from our original quote (which we all know already had significant discounts). I've prorated the discount and will be reaching out to you all shortly on some of the more specific county [sic] comments they provided. I told them I would get back with them today and I plan on agreeing to the fixed fee. I need to sort out the engagement letters. I think its [sic] going to play out where AU will engage directly with JBS (due to legal privilege), and the US will engage directly with the JBS for all other services with the exception of legal - there will need to be local country engagement letters in place. We should all check with our accounting folks to see how this needs to be done. Everything has to be coordinated through the US at JBS's request. (Emphasis added.) 120 On 16 October 2015, Tom Seymour, Managing Partner, PwC Asia Pacific & Americas Tax and Legal, sent an email to John Kulich (PwC USA) and Neil Fuller (PwC Australia), copied to Peter Dunn (PwC Australia), with the subject line "JBS". The email stated in part: John and Neil Pete and I met with Edison Alvares and his team this afternoon. It was a constructive meeting and in broad terms the feedback provided was consistent with the messages previously provided to you both. We have agreed with Edison that Pete will take the lead from the Australian side going forward with Glenn continuing on in a support role in order to ensure the timely delivery of the project and LPP is maintained. (Emphasis added.) 121 Although this email suggests that Mr Russell would be moving to a "support role" going forward, Mr Russell's evidence (which I accept) was that his role did not change, and it remained exactly the same as before. 122 On 6 October 2016, Mr Russell sent an email to John Kulich (PwC USA), copied to Peter Lee (PwC USA), Jon Cox (PwC USA), Rob Stout (PwC USA), Michael Bona (PwC Australia), Dritton Jemaylay Xhemajlaj and Neil Fuller (PwC Australia), with the subject line, "TP Team doc". The email stated in part: Excellent news. Congrats Peter, well done. Peter - I have copied the Australian TP team on this email … Can you please make sure that you are connected in with them as early as possible through the engagement phase? As a generally [sic] rule JBS like to have Australian tax advice prepared as a legal service so that the work is covered by Legal Professional Privilege in Australia. We have always been able to accommodate this through ensuring that we set up the engagement in the correct way at the outset. (Emphasis added.)

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Charge-out rates of ALPs and NLPs 123 In the course of cross-examination, Mr Russell was taken to Statement of Work No 1, dated 31 October 2014, and in particular the charge-out rates for Mr Fuller ($1,459), Mr Denovan ($1,141) and Mr Russell ($862). It was pointed out that Mr Fuller and Mr Denovan were both NLPs, while Mr Russell was an ALP. Mr Russell gave evidence that the charge-out rates were set by business leaders. The following exchange took place during cross-examination: [SENIOR COUNSEL FOR THE COMMISSIONER]: Now, on this SOW that we were looking at, which is a contested SOW, I read out who was charging. Not everybody, but I did read out Fuller and Stewart and Denovan and Russell's rates as well, which is listed on the SOW. I wanted to ask the witness this. Would you agree that it is unusual that non-legal practitioners who merely assist you to provide services were [charging] so much more than what you charge for doing that work?---No. I don't think that - not specifically, understanding the way in which rates are set. I - that rate is purely a product of what spat out of a system, so I never really particularly thought about that. So you would not agree that it appears an odd circumstance that someone like Chris Stewart is charging 816, Theo Denovan is charging 1141, and Neil Fuller is charging 1459, and they are designated assistants to you who's only charging 862. That's not an odd circumstance?---It may do. It may appear that way, but it didn't to me. Doesn't to me. Because I understand the differential in rates between geographies. Right. So the assistants - it's quite common to you that assistants to an ALP are regularly charging much higher rates per hour than the ALP?---It would depend on - it would depend on who's assisting. Yes. But say it's Neil Fuller under an SOW. We've just seen that he charges $1459 in this SOW. Is that quite a common occurrence that someone who charges that much, like Neil Fuller, would be a designated assistant to you?---It - it could - as I said, it could very well be common depending on who the person is and where they're from. Rates are different in any geographic location. 124 Mr Russell gave evidence that he did not set the rates and he did not know how they were set. He also said that the experience of the practitioner may be relevant in setting the rates.

[34]

General matters regarding the engagements 125 Mr Russell gave evidence in his affidavit about the way the work was performed under the relevant engagements. He stated at paragraphs 79 to 87 of his affidavit: 79. My work on the Projects involved me advising as to the adoption and implications of proposed structures for Australian taxation purposes. The corporate structures and matters I was advising upon for the purposes of the Projects were complicated and involved. For me to properly advise as to the adoption and implications of some proposed structures as part of the Projects involved an iterative process, often in conjunction with development and consideration of a step plan, setting out the steps proposed to implement the structure. Proposals, options and steps were progressively analysed and varied as part of that process before I could arrive at a concluded position. This iterative process required me to give advice progressively and informally (that is, not as formal written opinions) as proposed structures were considered and rejected. 80. I was the partner responsible for the tax advice which was provided to JBS under the Contested SoWs and in relation to the Projects. I was conscious of that throughout my work on those engagements (and more generally). I was also the person with primary responsibility for directing the work undertaken by those who assisted me. I have provided further detail in respect of the PwC Australian team above in paragraphs 70 - 75. Throughout the Relevant Period, I regularly directed them as to the work that I wanted them to perform and they regularly reported to me as to this work. 81. I also considered, in relation to aspects of the various Projects, for me to provide my advice as to the Australian taxation issues (including as to the adoption and implications of a proposed structure, step or action), that I needed input in relation to various other subject matter areas. In undertaking my work during the Relevant Period, I sought, and considered, such input. The nature of the input depended on the Project and the particular issue being considered. However, at different points in time throughout the Relevant Period, and in relation to various issues that arose throughout, this input included: (a) input as to the Australian accounting implications; (b) input as to potential stamp duty implications; (c) input as to potential transfer pricing issues and documentation; and (d) input as to potential issues and implications arising under foreign taxation laws, including, in particular in the United States or Brazil (but also in some other jurisdictions such as Luxembourg, the United Kingdom and Ireland). 82. So, for example, in undertaking my work, I did not consider that it would be sensible (and would be against my instructions from Mr Alvares) for me to advise as to the appropriateness of a structure or step or action if it gave rise to significant adverse implications under the taxation rules of another country or significant adverse stamp duty implications. There would be no point to me doing so, as such a structure would not be viable. Therefore, I considered that before and while giving such advice, I had to be satisfied in respect of any foreign tax implications and stamp duty implications. 83. In relation to various issues, I considered that for me to provide tax advice to JBS it was necessary for me to understand a number of aspects of the Australian accounting implications to potential and actual transactions. For example, in respect of the GRAP: (a) [redacted]. (b) [redacted]. (c) [redacted] (as I have described above). 84. In relation to various issues, I also considered that for me to provide tax advice to JBS it was necessary for me to understand the likely Australian stamp duty implications of the steps in any transaction that was being considered. [Redacted]. 85. Further, [redacted]. 86. So, by way of example, one particular issue I became aware of following discussions with personnel of PwC Brazil [redacted]. 87. Ultimately, the Australian tax advice reflected in the deliverables provided to JBS under the Contested SoWs set out my opinion, following my consideration of the relevant matters including the input which I received in respect of other subject matters. I accept this as an accurate description of Mr Russell's general practice in relation to the projects. 126 Mr Russell also gave evidence in his affidavit about his usual practice in preparing advices. He stated at paragraphs 89 to 91 (which I accept as an accurate description of Mr Russell's usual practice): 89. As a partner, it was not my usual practice during the Relevant Period to undertake the first substantial drafting exercise in respect of a detailed advice. I was usually responsible for the supervision and direction of such advice. I provided supervision and direction in the preparation of such advice and I usually discussed its contents before asking those assisting me to prepare the first draft. I was usually heavily involved in the development of the text after the first draft was prepared, and I provided instructions and comments as to the content of the advice. I was also involved in drafting substantive aspects of the advice where necessary, and re-drafting the text provided by others. I reviewed such advice and satisfied myself that the advice reflected my views and opinions before it was finalised. In the context of advices I prepared for JBS, I followed that practice, with one or more of Mr Stewart, Mr Ali, Mr Campbell and Ms Low taking the lead on the first substantial drafting exercise. 90. It was the practice within PwC at the time, and my practice, to have another partner (or partners) review advice on complex tax matters for the purposes of quality assurance. In the context of advices I prepared for JBS, I asked Mr Fuller or Mr Dunn (and while I cannot recall, it was likely I also asked other partners) to review my advice. 91. In my experience it is not unusual to provide a formal written opinion in respect of a transaction following its implementation. The steps are implemented on the basis of advice provided incrementally (largely in emails and comments in updated step plans, or in documents that captured advice on a step by step basis as the GRAP steps evolved) in the development of the transaction. A step plan for the transaction is usually developed with comments (including comments as to tax implications) on those steps provided by the advisers. That is commonly used as "working advice". This "working advice" is then written up in a more detailed formal opinion. This was the approach that was taken with Project Twiggy, Project Twiggy - Phase 2 and the GRAP. However, these in large part reflected analysis which had been undertaken a significant time beforehand, in the process of the proposed transactions being considered and developed. As steps were proposed and options developed I would consider the income tax implications of them as part of my consideration as to whether to recommend them to the JBS Australia Group. 127 In cross-examination, Mr Russell gave the following evidence: [SENIOR COUNSEL FOR THE COMMISSIONER]: … in your affidavit, there are many references to what you say is your advice, and I'm curious to know and understand what you mean by this. So when you have substantial input from NLPs, or non-legal practitioners, do you still say that you, as the lawyer, are providing the advice?---I do. Yes. 128 Mr Russell gave evidence during cross-examination that he did not hold himself out to be a "deep stamp duty expert" and that he did not practise in that area on a day-to-day basis. Further, he said that he did not hold himself out to be a "deep specialist in transfer pricing". Mr Russell gave the following evidence: Where you have a matter which is outside your expertise - that is, you do not have sufficient relevant professional expertise - you will need to get one of your assistants to prepare the first draft. Is that correct?---Yes, that is correct as a general proposition. 129 The following exchange subsequently took place: Mr Russell, I'm not asking you about simple quick answer advices. I'm asking you where you have an area which is outside your expertise - for example, transfer pricing or stamp duty - and it is substantial, and it is complex, and it's highly technical, like transfer pricing is, then you would get someone else, one of your assistants in your team, to write the first draft?---Yes. As I've explained, that's - that's my general practice. That's right. And that would be because you do not have the same level of expertise as your assistant?---In - in those two areas that you referred to, I agree with you. Thank you. Then I put to you the next thing that would happen is your function would be to read that draft advice. Yes?---Yes. You would - thank you. Then you would come to a level of understanding of that advice?---Yes. Yes. And then the next step would be that you would conclude that there's no reason to doubt its accuracy. Its technical accuracy?---Unless there was something I disagreed with or I - or I wanted to challenge or discuss particularly, which is regularly the case. Then if I was comfortable with it after that process then, yes, I would - I would conclude it's accurate and I would be happy with it as my advice. 130 Mr Russell also gave the following evidence: When you read a draft advice on an area outside your expertise, do you spend time - appropriate time on the job to actually come to your own view about that advice?---Generally, I do, yes. So that's how it becomes your advice?---Yes. 131 During cross-examination, Mr Russell was asked questions about the relative expertise of the ALPs and the NLPs listed in the Statement of Work. In the context of Statement of Work No 7, Mr Russell accepted that the four NLPs who were partners were more experienced than he was in their particular fields. The following exchange took place: It's not correct to characterise their role - and that's the four specialists that I've read out; I've left out the more junior NLP. It's not correct to characterise their role in this project as mere assistants to you, is it?---I don't agree with you on that. So I would suggest that this agreement is not an agreement to engage just you as a lawyer but to engage a large group of experienced tax advisors for the benefit of their collective advice?---I totally disagree with that. 132 Mr Russell also gave the following evidence: Right. So you refer on a number of occasions in your evidence to second partner review, and you do so at paragraph 190?---Yes. Sometimes, you refer to it as quality assurance, at paragraph 90. Now, you say at paragraph 90 of your affidavit that in the context of advices you prepared for JBS, you asked Mr Fuller or Mr Dunn to review your advice for the purposes of quality assurance. That's what you say at paragraph 90; is that correct?---Yes, it is. Both of those partners were capable of reviewing your advice because they themselves were experienced tax advisors; is that right?---Yes, I agree. Now, Mr Fuller and Mr Dunn didn't only review your advice. They, in fact, signed off on it; would you say that's correct?---No, I would not say that's correct. 133 Insofar as the evidence set out in [127]-[132] above relates to Mr Russell's general practice, I accept that evidence as an accurate description of his general practice. Insofar as views are expressed about matters of legal characterisation, I accept that Mr Russell holds the views that he expressed; ultimately, however, this is a matter for the Court to determine. 134 Ms Manzano gave evidence in her affidavit (which I accept) that, in the case of each of the projects described in her affidavit, it was her expectation that the PwC team (i.e. PwC USA, PwC Brazil and PwC Australia) would liaise with each other to ensure a co-ordinated response to JBS. She also gave evidence (which I accept) that it was important during each of the projects that the teams in each jurisdiction were aware of what was happening elsewhere, so that there was a "co-ordinated approach" and so that there were no adverse impacts in one jurisdiction due to an event in another.

[35]

General matters 135 As a preliminary matter, I note that, in the circumstances of this proceeding, s 118 of the Evidence Act 1995 (Cth) is not engaged; rather, it is the common law doctrine and principles of legal professional privilege that apply. 136 This proceeding is concerned with the advice limb of the common law doctrine of legal professional privilege. In essence, that limb protects from disclosure confidential communications between a lawyer and client made for the dominant purpose of giving or obtaining legal advice or the provision of legal services: Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 (Esso) at [35] per Gleeson CJ, Gaudron and Gummow JJ; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 (Daniels) at [9] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. For ease of expression, in the balance of these reasons, I will not refer repeatedly to the element of confidentiality, which is not here in issue. 137 It is now settled that legal professional privilege is a rule of substantive law: Daniels at [9] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. Being a rule of substantive law and not merely a rule of evidence, legal professional privilege is not confined to the processes of discovery and inspection, and the giving of evidence in proceedings: Daniels at [10]. Rather, in the absence of a provision to the contrary, it may be availed of to resist the giving of information or the production of documents in accordance with investigatory procedures of the kind in s 155 of the Trade Practices Act 1974 (Cth) (now s 155 of the Competition and Consumer Act 2010 (Cth)): Daniels at [10]. 138 The underlying rationale for legal professional privilege is that a person should be entitled to seek and obtain legal advice without the apprehension of being prejudiced by subsequent disclosure: Esso at [35], [57] per Gleeson CJ, Gaudron and Gummow JJ, at [78] per McHugh J, at [166] per Callinan J; see also Grant v Downs (1976) 135 CLR 674 (Grant v Downs) at 685 per Stephen, Mason and Murphy JJ; Baker v Campbell (1983) 153 CLR 52 (Baker v Campbell) at 114-116 per Deane J. The doctrine of legal professional privilege seeks to strike an appropriate balance between the competing public interests of encouraging full and frank disclosure by clients to their lawyers, which supports the administration of justice by encouraging the candid obtaining of legal advice and assistance, and seeking the fullest possible access by courts to information relevant to the issues in a case. 139 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: AWB Ltd v Cole (2006) 152 FCR 382 (AWB (No 1)) at [101] per Young J. 140 The privilege belongs to the client and not the lawyer: Esso at [1] per Gleeson CJ, Gaudron and Gummow JJ. 141 Legal professional privilege attaches to a copy document that is provided to a lawyer if the copy was made for the dominant purpose of obtaining legal advice, even where the original document is not privileged: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (Propend); Esso; AWB Ltd v Cole (No 5) (2006) 155 FCR 30 (AWB (No 5)) at [44(11)] per Young J. 142 The privilege extends to any document prepared by a lawyer or client from which there might be inferred the nature of the advice sought or given: Propend at 569 per Gummow J; AWB (No 1) at [127]-[139] per Young J. Examples include communications between the various legal advisers of the client, draft correspondence with the client, and legal research memoranda.

[36]

Dominant purpose 143 In order for privilege to arise, it is not sufficient that giving or obtaining legal advice or providing legal services was in part the purpose; it must be the dominant purpose of the relevant communication. In Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 225 ALR 266 (Pratt Holdings (on remitter)), on remitter from the Full Court (discussed below), Kenny J said (at [30]): (7) The dominant purpose is not the same as the "primary" or the "substantial" purpose: see Grant v Downs at CLR 678; ALR 580-1 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 97-8 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 … 144 Justice Kenny also stated at [30]: (8) Where two purposes are of equal weight, neither is dominant in the relevant sense. Hence: (a) 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; and (b) if the decision to bring the document into existence would have been made irrespective of any intention to obtain legal advice, the purpose of obtaining legal advice cannot be the dominant purpose for the making of the document. 145 Whether the dominant purpose of a communication is such as to render it privileged is to be determined as a matter of substance, including by reference to the "content, context and evidence as well as the form of the document": Seven Network Ltd v News Ltd [2005] FCA 142 (Seven) at [6] per Tamberlin J; see also Pratt Holdings (on remitter) at [30] per Kenny J; Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853 (Kenquist Nominees) at [11] per Thawley J. 146 Whether a communication is for the dominant purpose of legal advice depends on the particular facts. The character of some documents may be sufficient to establish the purpose for which they were brought into existence. In other instances, particularly in a case where the documents themselves do not disclose the purpose for which they were created, it may be necessary to identify the circumstances in which the communication took place and the topics to which the instructions or advice were directed: Kennedy v Wallace (2004) 142 FCR 185 at [12]-[17], [41] per Black CJ and Emmett J, and at [144]-[145], [166]-[177] per Allsop J (as the Chief Justice then was); AWB (No 5) at [44(3)] per Young J; Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 at [41] per Graham J. 147 The fact that a document is labelled as privileged or as being prepared for legal advice will not establish a privileged dominant purpose: Seven at [6] per Tamberlin J.

[37]

Continuum of communications 148 It is established that legal professional privilege may attach to a broader range of communications than formal legal advice and requests for such advice. In Balabel v Air India [1988] 1 Ch 317 (Balabel), Taylor LJ (with whom Lord Donaldson MR and Parker LJ agreed) said at 330: Although originally confined to advice regarding litigation, the privilege was extended to non-litigious business. Nevertheless, despite that extension, the purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence. In my judgment, therefore, the test is whether the communication or other document was made confidentially for the purposes of legal advice. 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. (Emphasis added.) 149 However, this is not to say that all communications between a lawyer and a client upon matters within the ordinary business of the lawyer are privileged. In Balabel, after discussing various authorities, Taylor LJ stated at 331: It follows from this analysis that those dicta in the decided cases which appear to extend privilege without limit to all solicitor and client communication upon matters within the ordinary business of a solicitor and referable to that relationship are too wide. 150 The passage from Balabel set out at [148] above has been cited with approval on many occasions: see, eg, DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151 (DSE) at [38], [45], [52] per Allsop J; Three Rivers District Council v Governor and Company of the Bank of England [2005] 1 AC 610 at [58]-[60], [62], [111]-[112]; Kenquist Nominees at [16] per Thawley J. 151 In DSE, after referring to several passages from Balabel, and discussing the judgment of Colman J (as his Lordship then was) in Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1995] 1 All ER 976, Allsop J stated at [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. 152 After discussing Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325, a judgment of Anderson J which adopted a similar approach to that in Balabel, Allsop J in DSE stated at [52]: No debate took place before me as to whether any reconciliation between Balabel and Dalleagles was required, or whether Anderson J's expression of the scope of the privilege is wider than that of Taylor LJ. (Balabel was not referred to by counsel before me, or before Anderson J.) I doubt that there is any difference of substance. What underlies the expression of opinion in both cases is the recognition that the obligation of the lawyer to advise, once retained, is pervasive. It would be rare that one could, with any degree of confidence, say that a communication between client (or agent) and lawyer, in the circumstances of a retainer requiring legal advice and the directing of the client by a legal adviser, was not connected with the provision or requesting of legal advice. For the reasons given by Taylor LJ in Balabel, Colman J in Nederlandse and Anderson J in Dalleagles, too literal a requirement of identifying legal advice as express advice about the law would place undue emphasis on formalism and undermine the privilege. 153 Difficulties can arise when legal advice and non-legal advice are intermingled. In Kennedy v Wallace, Allsop J at [157] referred to the facts of the case and then stated: A person can see a legal adviser and receive legal advice and commercial or other non-legal advice. The former will be privileged, the latter not. Difficulties of course can arise in demarcation. Difficulties can arise if the advice is intermingled. The resolution of the issue will generally be a question of fact.

[39]

Third parties 156 It is now established that legal professional privilege can extend to communications between the client or lawyer and a third party who is not an agent: Pratt Holdings at [41]-[42], [49] per Finn J (with whom Merkel J agreed), [105]-[107] per Stone J (with whom Merkel J also agreed). See also Nipps (Administrator) v Remagen Lend ADA Pty Ltd (No 6) [2021] FCA 694 at [19] per McKerracher J, quoting Nipps (Administrator) v Remagen Lend ADA Pty Ltd (No 3) (2021) 152 ACSR 196 at [30]-[35] per Banks-Smith J. 157 In Pratt Holdings, Finn J set out at [22] what was then considered to be the orthodox position. His Honour stated: When one turns to such authority as there is on the question raised by these appeals, adherence to historical assumption appears to hold sway. As I indicated at the beginning of these reasons the apparent orthodoxy is that: (i) a documentary communication authored by an employee which satisfies the dominant purpose test will be privileged whether or not communicated by the employee to the legal adviser; (ii) a documentary communication authored and communicated to the legal adviser on behalf of the principal by an agent at the principal's behest which satisfies the dominant purpose test will be privileged; but (iii) a documentary communication prepared by a third party (not being an employee or "agent") with the dominant purpose of the party procuring its creation being its being communicated by that party to the legal adviser is not privileged in the hands of the third party. 158 The issue in Pratt Holdings was whether the proposition expressed in (iii) was correct. Justice Finn stated at [23] that the proposition in (iii) was routinely accepted as being a consequence of the decision in Wheeler, notwithstanding that that case did not involve a documentary communication authored by a third party for transmission by its principal to a legal adviser to obtain legal advice. Justice Finn set out a passage from Wheeler, and described the result as "unsurprising" and the observations in the passage as "unobjectionable". 159 At [29], Finn J noted that, while there was a deal of Australian authority (mostly at first instance) on third party communications with legal advisers, there was little that touches directly on the issue in dispute in the appeals. After reviewing the case law, Finn J stated at [34] that, in the absence of binding authority, or for that matter Australian appellate authority which the Full Court should follow as a matter of comity, the issue fell to be decided by reference to principle, legal policy and to such authority of other jurisdictions as was persuasive when considered in our domestic setting. 160 At [35], Finn J stated: Where the issue, as here, is with whether a document attracts legal advice privilege at the time it is brought into existence (as distinct from whether a copy of it is privileged when communicated at a later date: cf Propend Finance), the obvious starting point is with what was the intended use (or uses) of that document which accounted for it being brought into existence: Grant v [Downs] at 692; Propend Finance at 508. In answering that question - which is a question of fact: Waterford v Commonwealth (1987) 163 CLR 54 at 66 - attention necessarily must focus on the purpose (or purposes) of the person who created the document, or who, if not its author, had the authority to, and did, procure its creation: Grant v Downs at 677; Hartogen Energy Ltd (in liq) v Australian Gas Light Company (1992) 36 FCR 557 at 568-569; Mitsubishi Electric Australia at 338; Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 at 1036 ff. 161 After referring to the circumstances of the case, which involved the preparation of a report by Pricewaterhouse Coopers at the request or direction of a Mr O'Halloran of Pratt Holdings Pty Ltd (Pratt Holdings), and noting that the primary judge had not found it necessary to make a finding as to what Mr O'Halloran's (and hence Pratt Holdings') purpose was or purposes were in procuring the report, Finn J stated at [37]-[39]: 37 Let it be assumed that his dominant purpose was to personally communicate that report or its contents to Arnold Bloch Leibler (ABL) for the purpose of obtaining the required legal advice. This assumption, I should interpolate, conceals the real difficulties that can arise in a case such as the present - a matter returned to below. 38 It is accepted that, when Pratt Holdings received the report and sent it to ABL in effectuation of its purpose, that communication with its solicitors attracted legal advice privilege. What is not accepted is that the step which was a necessary precondition to effectuating that purpose - ie, the transmission of the report from PricewaterhouseCoopers to Pratt Holdings for its submission to ABL - resulted in the report and its pendant documents, if I might so describe them, having or retaining the character of privileged documents in PricewaterhouseCooper's hands for which Pratt Holdings could claim privilege. 39 I have already commented upon what I consider to be the patent artificiality flowing from the denial of privilege in such circumstances. If Pratt Holdings had its own and appropriately qualified accounting staff which prepared a like report, that report would have been privileged. Equally, if it had directed PricewaterhouseCoopers to send the report directly to ABL, it would likewise be privileged as Pratt Holdings would have thus constituted PricewaterhouseCoopers its agent to make the, or else a part of the: see Propend at 571-572; communication by Pratt Holdings to ABL for the purpose of obtaining legal advice. 162 After noting that, on the facts of the case, PricewaterhouseCoopers was not relevantly the agent of Pratt Holdings, Finn J stated at [41]-[42]: 41 To deny that a third party is an agent in such circumstances does not, though, provide a sufficient or principled reason for denying privilege to the documentary communication (or contents) it has authored. The important consideration in my view is not the nature of the third party's legal relationship with the party that engaged it but, rather, the nature of the function it performed for that party. If that function was to enable the principal to make the communication necessary to obtain legal advice it required, I can see no reason for withholding the privilege from the documentary communication authored by the third party. That party has been so implicated in the communication made by the client to its legal adviser as to bring its work product within the rationale of legal advice privilege. 42 There are, in my view, clear reasons of policy that support extending the privilege to such third party authored documentary communications. Whether a natural person or a corporation, a party seeking to obtain legal advice may not have the aptitude, knowledge, skill and expertise, or resources to make adequately, appropriately or at all such communication to its legal adviser as is necessary to obtain the advice required. Such is commonplace today where advice is sought on complex and technical matters. To deny that person the ability to utilise the services of a third party to remedy his or her own inability or inadequacy unless he or she is prepared to forego privilege in the documents prepared by the third party, is to disadvantage that person relative to another who is able adequately to make the desired communication to a legal adviser by relying upon his or her own knowledge, resources, etc. (Emphasis added.) 163 At [44], Finn J noted that, for the purposes of the earlier discussion, he had assumed that PricewaterhouseCooper's report had been prepared at Mr O'Halloran's direction with the dominant purpose of it being, or being part of, Pratt Holdings' communication to ABL to obtain legal advice. His Honour then stated: "That assumption is a large one." In the paragraphs that followed, Finn J discussed (in terms that are highly relevant for present purposes) some of the issues relating to purpose in the context of communications involving third parties: 45 While the question of Pratt Holdings' purpose(s) in this matter is simply one of fact, particular care needs to be taken in evaluating evidence of purpose in a setting in which the third party performs a professional function for a principal in a non-litigation setting but in a matter in which legal advice is to be or is being sought by that principal. There is a number of reasons why this is so. First, the third-party principal relationship (be it accountant-client, assessor-client or otherwise) will not as such attract privilege to any exchanges made in it: Baker v Campbell at 66, 75, 94 and 128. For this reason alone caution needs to be taken in determining whether the parties' relationship has a character other than the above for privilege purposes. 46 Second, the matter or transaction in respect of which legal advice is sought may well be one in which the principal considers it necessary or appropriate to obtain advice as well from other professional and business sources. In determining the preferred structure of a business transaction, for example, a person might consult not only a lawyer, but also one or more of an accountant, a financial planner and a merchant banker for advice: cf Kennedy v Wallace at [60]. The advices given by such other advisers will rarely be capable of attracting privilege for the reason that they will almost invariably have the character of discrete advices to the principal as such, with each advice, along with the lawyer's advice, having a distinctive function and purpose in the principal's decision-making - albeit all of the advices may be interrelated in the sense of providing collectively a basis for informed decision by the principal. Those other advices will not later acquire the character of privileged documents in the respective adviser's hands: cf Propend; merely because the principal subsequently makes the advices available to his or her lawyer when obtaining legal advice. Importantly, as Deane J observed in Baker v Campbell at 112, privilege does not "extend to protect things lodged with a legal adviser for the purpose of obtaining immunity from production". Neither does it extend to third party advices to the principal simply because they are then "routed" to the legal adviser. 47 Third, notwithstanding the principal's stated purpose in having a documentary communication brought into existence, the principal may have so conducted himself or herself in the matter as to indicate that the intended use of the document authored by the third party was not its communication to the legal adviser as the principal's communication, but rather it was to advise and inform the principal concerning its subject matter, with the principal then determining (a) in what manner, if at all, the whole or part of the document would be used by the principal in making its own communication or (b) the purpose(s) for which the document could or should be used. The less the principal performs the function of a conduit of the documentary information to the legal adviser, the more he or she filters, adapts or exercises independent judgment in relation to what of the third party's document is to be communicated to the legal adviser, the less likely it is that that document will be found to be privileged in the third party's hands. This will be because the intended use of the document is more likely to be found to be to advise and inform the principal in making the principal's communication to the lawyer (whether or not that communication embodied wholly or substantially the content of the document) and not to record the communication to be made. (Emphasis added.) 164 It is important to note the carefully terms in which Finn J expressed his reasons, and the approach indicated in the above passage as to the ascertainment of dominant purposes in a context involving communications with third parties. 165 In separate reasons, Stone J came to the same conclusion. I note that, at [86], Stone J referred to the fact that the situations in which people need legal advice are increasingly complex and that the client may need the assistance of third party experts "if he or she is to be able to instruct the legal adviser appropriately" (emphasis added). Similarly, at [104], Stone J referred to the increasing complexity of commercial arrangements and of the law, including tax, corporations and securities legislation, and observed that a "company that wishes to obtain legal advice as to its obligations under such legislation may well need to rely on experts to assist it in instructing its legal advisers" (emphasis added). I have emphasised these words, as they indicate the type of communications that were the focus of consideration in Pratt Holdings. 166 In the following passage, as well as setting out her conclusion on the issue, Stone J emphasised the difficulties in proving dominant purpose in cases involving communications with third parties: 105 The coherent rationale for legal professional privilege developed by the High Court does not lend itself to artificial distinction between situations where that expert assistance is provided by an agent or alter ego of the client and where it is provided by a third party. Nor, in my view, should the availability of privilege depend on whether the expert opinion is delivered to the lawyer directly by the expert or by the client. Provided that the dominant purpose requirement is met I see no reason why privilege should not extend to the communication by the expert to the client. This approach is consistent with the High Court's ruling in Daniels (see [84]) that legal professional privilege protects communications and therefore prevents the disclosure of information or documents that would reveal communications protected by the doctrine. 106 I do not accept that this approach would lead to uncontrollable extension of the privilege. The difficulties in proving the relevant purpose should not be underestimated. Advice as to commercially advantageous ways to structure a transaction are extremely unlikely to attract privilege because the purpose in putting the advice together will, in most cases, be quite independent of the need for legal advice. Even if the parties have in mind that the advice will be submitted to a lawyer for comment, the purpose is unlikely to be the dominant purpose. Determining the dominant purpose underlying a communication may be difficult but no more so than many questions that come before courts. Courts would need to take into account exactly what function was served by the expert advice and whether it was really required in order to instruct the legal advisers fully. Obviously if the third party is an agent of the client and the client has the requisite purpose the determination is comparatively simple. Similarly if the material sought by the lawyer is required for litigation it is not difficult to determine the chain of authority and to find the requisite purpose; see, however, [90]. Ultimately the question is one of fact and the onus is on the person seeking privilege protection to establish the case. (Emphasis added.) 167 Although the question of "onus" is discussed in more detail below, it is convenient to note at this point that, in the last sentence of the above passage, Stone J (with whom Merkel J agreed) held that the onus is on the person seeking privilege protection to establish the case. 168 The judgment in Pratt Holdings was followed by the Full Court of this Court in State of New South Wales v Betfair (2009) 180 FCR 543 at [26] per Kenny, Stone and Middleton JJ; see also at [29]-[31], [40]. 169 In Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796 (Asahi), Beach J followed the judgment of the Full Court in Pratt Holdings in setting out relevant principles. In particular, Beach J stated at [40]: … where a third party such as an accountant, broker, merchant banker, financial adviser, due diligence specialist and others of a non-legal genus perform work for a client in a non-litigation setting, care needs to be taken with analysing the precise purpose for each communication. Take a substantial acquisition or merger. A client may engage and seek advice from a number of non-legal advisers as well as consulting lawyers. Legal and non-legal advice might be sought on the structure, bid vehicle, terms and conditions of any offer or agreement, finance of the bid vehicle, due diligence of the assets and liabilities of the target, assessment of the financial metrics of the target pre and post-acquisition such as EBITDA including any underlying projections, and so forth. In short, legal and non-legal advice might be sought on the same topic so that the topic in all its dimensions is fully analysed by and for the client. The various advices given by the non-legal advisers "will rarely be capable of attracting privilege for the reason that they will almost invariably have the character of discrete advices to the principal as such, with each advice, along with the lawyer's advice, having a distinctive function and purpose in the principal's decision making…" (Pratt at [46]). 170 The following principles or propositions concerning communications between a (non-agent) third party and a lawyer or client, and the question of legal professional privilege, emerge from the authorities discussed above: (a) The important consideration is the nature of the function the third party performed for the client. If that function was to enable the client to make a communication necessary to obtain legal advice, privilege may attach to a documentary communication authored by the third party. The third party has been "so implicated" in the communication made by the client to its legal adviser as to bring the third party's work-product within the rationale of legal advice privilege: Pratt Holdings at [41] per Finn J (Merkel J agreeing). (b) The question of the client's purpose or purposes is one of fact. Particular care needs to be taken in evaluating evidence of purpose in a setting in which the third party performs a professional function for a client in a non-litigation setting, but in a matter in which legal advice is to be or is being sought by that client: Pratt Holdings at [45] per Finn J (Merkel J agreeing); see also at [106] per Stone J (Merkel J agreeing). (c) For example, in determining the preferred structure of a business transaction, a person (the client) might consult not only a lawyer, but also one or more of an accountant, a financial planner and a merchant banker for advice. The advices given by such other advisers will rarely be capable of attracting privilege for the reason that they will almost invariably have the character of discrete advices to the client, with each advice, along with the lawyer's advice, having a distinctive function and purpose in the client's decision-making - albeit all of the advices may be interrelated in the sense of providing collectively a basis for informed decision by the principal: Pratt Holdings at [46] per Finn J (Merkel J agreeing); Asahi at [40] per Beach J; see also Pratt Holdings at [106] per Stone J (Merkel J agreeing). (d) Privilege does not extend to protect "things lodged with a legal adviser for the purpose of obtaining immunity from production": Baker v Campbell at 112 per Deane J; Pratt Holdings at [46] per Finn J (Merkel J agreeing). Nor does it extend to third party advices to the client simply because they are then "routed" to the legal adviser: Pratt Holdings at [46].

[40]

Law graduates 171 Given that PwC Australia's model for the provision of legal services relies in part on an analogy with work done by law graduates in a traditional law firm or legal practice within an accounting (or professional services) firm (see [51] above), it is relevant to make some observations about the way in which such work may be characterised for the purposes of legal professional privilege. 172 It is not uncommon in traditional law firms, and, I assume, legal practices within accounting (or professional services) firms, for law graduates (previously known as articled clerks) to prepare draft letters of advice or memoranda of advice under the direction and supervision of a legally qualified partner or employee solicitor. The partner or solicitor then substantively reviews the advice, makes whatever changes he or she considers appropriate, and sends the letter or memorandum to the client under his or her own name (or the law firm's name). In such a scenario, although most or even all of the drafting has been carried out by the law graduate, the letter or memorandum may be treated as the legal work of the partner or solicitor (and hence capable of attracting legal professional privilege) in circumstances where the law graduate's work was carried out under the supervision and direction of the lawyer, the lawyer substantively reviewed the draft, and the lawyer adopted the work as his or her own by sending it out under his or her name. See generally Kiefel v State of Victoria [2012] FCA 622 at [16]-[18] per Gordon J; Glengallan Investments Pty Ltd v Arthur Andersen [2002] 1 Qd R 233 at [19] per Williams JA, with whom McPherson JA and Ambrose J agreed. In considering whether these elements are present, it is relevant to consider the expertise of the lawyer in relation to the relevant legal work; the lawyer must have sufficient knowledge and experience to be able to substantively review the law graduate's work. 173 Importantly, in the scenario described above, the role of the lawyer in the preparation and finalisation of the advice is substantive; the lawyer is not merely a conduit through which advice is provided by the law graduate to the client.

[43]

Onus of proof 176 One of the issues between the parties concerns the onus of proof in the present case. The Commissioner contends that the onus is on the party claiming privilege. The respondents contend that the onus is on the Commissioner, as the moving party in the proceeding. 177 Ultimately, I do not consider the issue of onus to be of particular significance in this case, because there is sufficient material before the Court for the privileged status of most, if not all, of the Sample Documents to be determined regardless of onus. Nevertheless, if and to the extent that it matters, I express the following views. 178 Generally, at common law the "party asserting a claim" is required to prove that claim (Federal Commissioner of Taxation v Cassaniti (2018) 266 FCR 385 at [5] per Logan J), and ordinarily this rule applies where a party seeks a declaration, including a negative declaration. However, it does not follow from this that the Commissioner bears the onus of proof in the present case. To the contrary, and although the position is not free from doubt, in my view the circumstance that the claim for a negative declaration concerns whether documents are protected by legal professional privilege (see, in particular, the second declaration sought by the Commissioner, set out at [10] above) means that the onus is on the party claiming privilege. 179 The relief sought by the Commissioner in the present case is substantially the same as the relief sought in the litigation relating to legal professional privilege involving Pratt Holdings. The structure of the proceeding is described in Commissioner of Taxation v Pratt Holdings Pty Ltd (2003) 195 ALR 717 (Pratt Holdings (first decision)), which was the subject of appeal in Pratt Holdings. The Commissioner, in the course of a tax audit, sought to access documents under s 263 of the ITAA 1936, and Pratt Holdings denied the Commissioner access, on the ground of legal professional privilege. The Commissioner issued an application in the Federal Court seeking two declarations: first, a negative declaration, that the documents were not privileged; and second, a declaration that, in the terms of s 263, he was entitled to have "full and free access" to the documents under that provision: see Pratt Holdings (first decision) at [1] per Kenny J. In effect, the second declaration was consequential on the first. 180 In the first decision, Kenny J stated that it was for Pratt Holdings to establish that the documents in dispute were privileged: Pratt Holdings (first decision) at [67], citing Waugh v British Railways Board [1980] AC 521 at 541 (a case decided in the context of a dispute as to inspection upon discovery). On appeal, Stone J, with whom Merkel J agreed, expressed the same view, namely that the onus is on the person seeking privilege protection to establish the case: Pratt Holdings at [106] (quoted above). Justice Finn did not address this issue, but observed that whether a document attracts legal advice privilege is a question of fact, before addressing the evidence adduced by Pratt Holdings as to the purpose that led to the creation of the documents: at [35]-[45]. The matter was remitted to the primary judge, who again stated that Pratt Holdings carried the onus of establishing its claim for privilege: Pratt Holdings (on remitter) at [30(1)]. Justice Kenny stated: (1) Pratt Holdings carries the onus of establishing its claim for privilege, whether by evidence as to the circumstances in which the documents were brought into existence, reference to the nature of the documents, or by argument: see Grant v Downs (1976) 135 CLR 674 at 689; 11 ALR 577 at 589 per Stephen, Mason and Murphy JJ (Grant v Downs) and Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority (2002) 4 VR 332; [2002] VSCA 59 (Mitsubishi Electric) at [11] per Batt JA, with whom Charles and Callaway JJA relevantly agreed. 181 PwC Australia submits that, in these cases, the issue of onus appears to have been assumed and not the subject of argument or dispute between the parties. It is not clear from the judgments whether or not that is the case. In any event, in circumstances where the Court in each of the three cases expressed a clear view on the matter, I consider it appropriate to follow those decisions. 182 Further, and consistently with the above, in Australian Crime Commission v Stewart (2012) 87 ATR 31 (ACC v Stewart), the Australian Crime Commission sought a declaration that legal professional privilege did not apply. Justice Stone held at [69] that it was for "the respondents, being the parties who claim the benefit of legal professional privilege to prove that the applicable criteria have been met".

[44]

GROUND A 183 By ground (a) of the amended originating application, the Commissioner contends that the form of the engagements, reflected in the Statements of Work, did not establish a relationship of lawyer and client sufficient to ground a claim for legal professional privilege. By his particularisation of ground (a), the Commissioner contends that the interposition of the NLPs, whose role is to: (a) assist the ALPs in the provision of legal services to the client; (b) act under the direction of the ALPs; (c) act as agents of the client for the purposes of giving instructions to the ALPs; and (d) act as agents of the client for the purposes of receiving legal advice and services from the ALPs, undermines any relationship of lawyer and client, and does not allow for the creation of a relationship of lawyer and client. 184 In support of this ground, the Commissioner submits that, what can be seen in the engagement structure embodied in the Statements of Work is an "especially formalistic attempt" to bring NLPs within the scope of a relationship between the ALPs and the client; in so doing, the Statements of Work create a role for the NLPs that is "so obscure and multifaceted" that it prevents the lawyer-client relationship necessary for privilege from arising. 185 The Commissioner accepts that, as a matter of structure there is nothing inherently wrong with a lawyer being assisted by a non-lawyer (such as a law clerk or a paralegal) who acts on the lawyer's behalf as servant or agent or alter ego and under his or her supervision. The Commissioner also accepts that privilege may arise in respect of communications to and from a third party who performs a function in furtherance of the solicitor-client relationship. 186 The Commissioner submits, however, that the Statements of Work, by the "Communications Protocol" "introduce something quite radical". Although the Communications Protocol has been set out above, I set it out here for ease of reference: Communications Protocol To facilitate delivery of the services you appoint the non legal practitioners who assist in the provision of the legal services as your agents for the purpose of communications to and from the legal services team. This includes giving instructions to and receiving legal advice and services from the Australian legal practitioners. We will communicate with you regarding our legal services and provide our legal advice separately from communications and advice regarding any non-legal matters. 187 The Commissioner submits that this term serves to appoint the very same NLPs who are said to "assist" the ALPs and to act under the ALPs' direction as agents of the client, including for the purposes of: (a) giving instructions to the ALPs (as agents of the client); (b) receiving advice from the ALPs (as agents of the client); and (c) receiving services from the ALPs (as agents of the client). 188 The Commissioner submits that, in appointing the non-lawyers as the client's agents, the Statements of Work have a very different result, namely they prevent any lawyer-client relationship arising in the first instance; that is because the structure designates to the non-lawyers conflicting roles: (a) First, they have the role of "assisting" the lawyers in the provision of legal services and under their direction. (b) Second, they have the role of representing the client vis-à-vis the lawyer, including by giving instructions to the lawyers and by receiving legal advice and services from them. 189 The Commissioner submits that: what results is the non-lawyers having a foot in both camps: at any one time, they are both the "lawyer" and the "client" in the purported lawyer-client relationship; what results from the appointment of the lawyer's NLP colleagues as agents of the client vis-à-vis the lawyer is an "impermissible intertwining" of the adviser and the client, and the "collapse of the necessary independence" required for a lawyer-client relationship to arise; the result is a "flawed engagement structure" which undermines the ability of the nominated ALPs to act in the professional capacity of a lawyer. 190 In my view, as a matter of form, the Statements of Work do establish a relationship of lawyer and client sufficient to be able to ground a claim for legal professional privilege. The key features of the Statements of Work have been summarised at [89] above. Each Statement of Work identifies the client, the ALPs who are to provide the services, the NLPs who will assist the ALPs in the provision of those services, and describes the services to be provided as legal services. The identified ALPs are lawyers qualified such as to be capable of being in a lawyer and client relationship which gives rise to privileged communications. 191 In these circumstances, and noting that there is no prescribed form for a retainer that must be met in order for privilege to arise, as a matter of form the Statements of Work are capable of establishing the requisite lawyer and client relationship within which communications may be protected by legal professional privilege. 192 While the structure of the relevant engagements, in particular the appointment or nomination of the NLPs as agents of the client (for the purpose of communications to and from the legal services team) and as persons who may assist in the provision of legal services (under the direction of the ALPs), is perhaps confusing, I am not satisfied that, as a matter of principle, the same person cannot be appointed to both roles or that there is necessarily a conflict between the roles. Both in acting as agent (in the limited way described in the Statement of Work) and in providing assistance, the NLP is acting in the best interests of the client - there is no necessary conflict of interest. I therefore do not consider that this aspect of the structure precludes the establishment of a lawyer-client relationship sufficient to ground a claim for legal professional privilege. 193 Insofar as the Commissioner contends that the structure produces a loss of independence, the requirement of independence has generally arisen in the context of in-house lawyers and issues of legal professional privilege. I am not satisfied that this requirement presents a difficulty in relation to the role of the NLPs in the present case. The limited scope of the NLPs' appointment as the client's agents (instructing the ALPs, and receiving advice and services from the ALPs) does not result in the NLPs having an "interest" in the outcome of the matter; they remain able to be professionally detached. 194 For these reasons, ground (a) is not made out.

[45]

GROUND B 195 By ground (b), the Commissioner contends that, as a matter of substance, the services provided by PwC Australia pursuant to the engagements reflected in the Statements of Work were not provided pursuant to a relationship of lawyer and client sufficient to ground a claim for legal professional privilege. 196 The Commissioner particularises ground (b) as follows: (a) the services provided under the Statements of Work involved substantial non-legal input from NLPs, including NLPs who were senior partners of PwC Australia with their own areas of expertise; (b) the engagement of individual ALPs and NLPs under each Statement of Work was express and in writing; (c) having regard to the relative seniority, experience, and expertise of the ALPs and the NLPs vis-à-vis each Statement of Work, and the relative contribution by the ALPs and NLPs vis-à-vis each other (in terms of hours recorded and billed, and relative charge-out rates) in the performance of services for the JBS Parties: (i) the services performed by the NLPs cannot be characterised as being in the nature of assistance to the ALPs; (ii) the services performed by the NLPs pursuant to the Statements of Work cannot be characterised as having been performed under the direction of the ALPs; (iii) the NLPs did not act as agents for the client for the purposes of giving instructions to the ALPs or receiving legal advice and services from the ALPs; and (iv) the ALPs' contribution to the services performed is insufficient to ground a claim for legal professional privilege. 197 The Commissioner submits that the evidence reveals that: (a) First, the real substance of the engagements reflected in the Statements of Work was for the provision of advice by a diverse group of accountant and tax advisers with their own distinct specialties in their capacities as accounting and tax advisers. (b) Second, the services performed pursuant to the Statements of Work included advice on issues outside of the expertise of the nominated ALP partner, Mr Russell. (c) Third, Mr Russell's own role was not primary. (d) Fourth, many of the NLPs who performed services pursuant to the Statements of Work were more senior than the ALPs and commanded higher charge-out rates. (e) Fifth, the majority of the work performed pursuant to the Statements of Work, in terms of hours recorded, was performed by NLPs and not ALPs. (f) Sixth, Mr Russell provided services to JBS already, and simultaneously, in the capacity of a non-legal tax adviser. 198 The Commissioner makes detailed submission about each of these matters. It is not necessary to set out those submissions. The Commissioner submits that, in total, what these matters demonstrate is that the Statements of Work do not reflect the reality that JBS engaged PwC Australia as a multi-disciplinary adviser in order to receive multifaceted advice from a group of experienced tax advisers, only some of whom happened to be lawyers. The Commissioner submits that there is no lawyer-client relationship in that situation. 199 I note that, by ground (b), the Commissioner does not seek to impugn the lawyer and client relationship by reference to the character of the services sought and provided under the Statements of Work, and nor could he have done so, not having had access to copies of the Statements of Work in which the parts setting out those services were unredacted. Rather, by ground (b), the Commissioner asks the Court to conclude, from the available material as to the expertise, experience, seniority and quantitative contributions of the ALPs and NLPs involved in the provision of services under the Statements of Work, that the services performed pursuant to them were not fairly referable to a lawyer and client relationship and are not protected by legal professional privilege. 200 I accept some of the factual contentions advanced by the Commissioner in connection with this ground. In particular: (a) I accept that the services provided under the Statements of Work involved substantial non-legal input from NLPs, including NLPs such as Mr Fuller and Mr DeBellis, who were senior partners of PwC Australia with their own areas of expertise (international tax and stamp duty respectively). (b) As noted above, some of the NLPs who performed services pursuant to the Statements of Work had higher charge-out rates than the ALPs who performed services pursuant to the Statements of Work. 201 Insofar as the Commissioner relies on estimates prepared by Ms Emery of the relative amounts of work performed by ALPs and NLPs, I note that these estimates are contested. I do not consider it necessary to make findings about this factual issue in order to determine this ground. 202 For the reasons that follow, in my view, ground (b) is not made out. 203 Ground (b) is framed by the Commissioner as a global proposition in relation to all work done pursuant to all of the Statements of Work, rather than a proposition put by reference to the creation of any particular document. As such, the ground is advanced as founding the conclusion that all of the Documents in Dispute are not privileged, rather than as producing a conclusion in relation to any particular document. 204 In circumstances where I have concluded that the form of the Statements of Work establishes a relationship of lawyer and client sufficient to be able to ground a claim for legal professional privilege (see ground (a), above), it is not possible, by reference to the expertise, experience, seniority and quantitative contribution of the ALPs and NLPs involved in the provision of services under the Statements of Work, to conclude as a global matter that the services performed pursuant to them were not fairly referable to a lawyer and client relationship, so as not to be protected by legal professional privilege. 205 Whether or not the Documents in Dispute are privileged is to be determined by reference to whether, as to each particular document, it constitutes or records a communication made for the dominant purpose of giving or obtaining legal advice. That question is to be determined by reference to the content of the document, its context, and the relevant evidence relating to it. The question cannot be determined on a global basis. 206 Further, having regard to the Sample Documents and the evidence in relation to them, I am satisfied that, at least in some relevant circumstances, a lawyer-client relationship existed between Mr Russell (an Australian legal practitioner) (and other Australian legal practitioners at PwC Australia) and one or more of the JBS Parties. 207 Many of the matters relied on by the Commissioner in support of this ground may well be relevant when it comes to consider, in the course of ground (c), each of the Sample Documents. However, I do not consider those matters, whether considered individually or cumulatively, to be sufficient to conclude that, as a matter of substance, services provided pursuant to the engagements were not provided pursuant to a relationship of lawyer and client sufficient to ground a claim for legal professional privilege. 208 For these reasons, ground (b) is not made out.

[46]

General 209 In the alternative to grounds (a) and (b), by ground (c) the Commissioner contends that the Documents in Dispute are not, or do not record, communications for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia. On this basis, the Commissioner seeks (relevantly) a declaration that the Documents in Dispute are not, and do not record, communications which are protected by legal professional privilege. 210 As I am presently dealing with the Separate Question, I am concerned only with the Sample Documents, rather than all of the Documents in Dispute. It is thus necessary to consider whether the Sample Document are, or record, communications made for the dominant purpose of giving or receiving legal advice. 211 As noted above, after the Commissioner's and the respondents' revised lists of Sample Documents were completed, the JBS Parties withdrew their claims of privilege over a number of the documents in the list and released the documents to the Commissioner. The relevant documents are listed in paragraph 59 of the Commissioner's outline of opening submissions in reply. It is there stated that documents A11, A18, A26, A35, A41, R17, R32, R39 and R45 have been released to the Commissioner. It is also stated that the JBS Parties part-produced a further seven Sample Documents with redactions for privilege, namely A4, A19, A20, A22, A42, A45, A48. 212 Apart from the Sample Documents that have been released, the Commissioner and his legal team have not had access to the Sample Documents. The Commissioner's ability to make submissions about the particular Sample Documents was therefore very limited. Nevertheless, the Commissioner prepared a schedule with written submissions on a document-by-document basis: the schedule was attached to the Commissioner's outline of opening submissions in reply dated 27 August 2021. 213 PwC Australia and the Amici Curiae provided detailed written submissions on a document-by-document basis in relation to the Sample Documents: (a) PwC Australia's submissions are contained in a schedule to its outline of opening submissions dated 20 August 2021. (b) The Amici Curiae's submissions are contained in a revised schedule to their outline of opening submissions. The revised schedule was provided to the Court on or about 8 September 2021. 214 In addition to the above, there were oral submissions about specific Sample Documents. Further, as there was insufficient time on the final hearing day for PwC Australia and the JBS Parties to make reply submissions, they provided their reply submissions in writing some days after the hearing. The JBS Parties also provided an aide memoire categorising the privilege claims and listing the relevant Sample Documents for each category. (This categorisation represents an amendment to an earlier categorisation contained in paragraph 57 of the JBS Parties' outline of submissions dated 20 August 2021.) 215 The Amici Curiae prepared a number of aide memoires to assist the Court. Of particular assistance for the purposes of assessing the Sample Documents is the third aide memoire, which lists the relevant personnel, and identifies (for personnel at PwC Australia) whether each person is an ALP or an NLP. 216 The Amici Curiae's submissions as to the Sample Documents were summarised in their fourth aide memoire (with one variation made during opening submissions). In summary, the Amici Curiae submitted that: (a) 24 of the Sample Documents were privileged; (b) 69 of the Sample Documents were not privileged; (c) 7 of the Sample Documents were partly privileged; and (d) they were unable to reach a position on 2 of the Sample Documents. 217 The following matters should be noted regarding the above figures. First, the Amici Curiae generally treated each Sample Document as a single document - at the time they prepared their submissions, they did not have the respondents' index, which is reproduced in the Annexure to these reasons and which treats emails and attachments as separate documents. Secondly, the total of the above figures is 102 (rather than 100) for reasons explained in a footnote to the aide memoire. 218 The question whether the Sample Documents are, or record, communications made for the dominant purpose of giving or receiving legal advice is to be determined by reference to the content of the document, its context, and the relevant evidence relating to the document. 219 Here, the context includes, importantly, the Umbrella Engagement Agreement and the Statements of Work, which have been described in detail above. However, the mere fact that a communication was made pursuant to one or more of the Statements of Work (which describe the services to be provided as legal services) does not mean that the communication is necessarily subject to legal professional privilege. In each case, it is necessary to determine whether the communication was made for the dominant purpose of giving or receiving legal advice. 220 A critical part of the context in the present case is that the services were provided by a multi-disciplinary partnership and that the team carrying out the work comprised both lawyers and non-lawyers. Another contextual matter is the involvement of overseas PwC firms in many of the same projects (under separate engagements). At least in the case of PwC Brazil and PwC USA, the overseas firms were not able to provide legal advice and made clear that they were not doing so. These contextual matters suggest that caution is required in evaluating whether or not a particular communication was made for the dominant purpose of giving or receiving legal advice. 221 I will now consider, in turn, each of the Sample Documents. I will consider the documents in the order that they are listed in the Annexure to these reasons. Where I refer to emails in an email chain, I will refer to the first email in time as the "first email", the second email in time as the "second email", etc, and the latest email in time as the "latest email".

[48]

R1 - PWC.011.004302 224 This document is an email chain dated 13 November 2014. The first email in the chain is an email from Richard Kriedemann, a partner of Allens, to various people including Mr Russell (PwC Australia). It attached a document, which had been prepared by Allens, summarising issues arising from Allens' review of a draft share purchase agreement (SPA). The second email in the chain is from Mr Russell to Mr Alvares (JBS Australia). Attached to that email is a memorandum from Mr Russell to Mr Alvares with the subject [redacted] (Document 3). The memorandum records that it provides comments in relation [redacted]. 225 Privilege has been claimed over both emails in the chain on the basis that they are for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Mr Russell) in relation to the Statement of Work No 2. Privilege has been claimed over the first email in the chain (from Mr Kriedemann) on the additional basis that the document is "for the dominant purpose of JBS requesting or being provided with legal advice from Allens". 226 Privilege has been claimed over the whole of Document 3 on the basis that it is "a copy of a communication created by PwC for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Mr Russell) in relation to the SoW dated 13 November 2014". Privilege has also been claimed over the document on the basis that it is "for the dominant purpose of JBS requesting or being provided with legal advice from Allens". 227 Mr Russell gives evidence in relation to Documents 2 and 3 at paragraphs 199-202 of his affidavit. He gives evidence that, on 12 November 2014, he received an email from Marcus Phillips (PwC Australia) in relation to reviewing the draft SPA for the Primo acquisition to provide any Australian tax comments. Mr Russell states that he asked Mr Stewart (PwC Australia) for assistance in reviewing it. Mr Russell gives evidence that Mr Stewart prepared the first draft of the memorandum and that he (Mr Russell) finalised it. Mr Russell gives evidence that the opinions in the memorandum are his opinions. 228 In my view, Documents 2 and 3 are privileged. Focussing on the second email in the email chain, the communication comprises Mr Russell's email and the attached memorandum of advice. While Mr Russell was assisted in preparing the memorandum of advice by Mr Stewart (an NLP), Mr Russell substantively reviewed the advice, finalised the memorandum, and provided it to the client under his own name. The memorandum constituted substantive advice by a lawyer on matters of Australian income tax, stamp duty and GST issues. It therefore constituted legal advice. Having regard to these matters, I consider that the communication was made for the dominant purpose of giving legal advice, namely legal advice by Mr Russell to his client (JBS). Further, I consider that the first email in the email chain is to be regarded as a copy document provided for the same dominant purpose, and hence also to be privileged.

[51]

R49 - PWC.203.000019 232 This document is Statement of Work No 3, dated 9 December 2014. Privilege has only been claimed over parts of this document, namely the parts of the document describing the scope of the services to be provided. The parts over which privilege is claimed are shaded in the copy of the Sample Documents provided to the Court. The shaded parts comprise most of sections 2 and 3 of the document. Sections 2 and 3 of this Statement of Work are set out at [100] above. 233 As noted above, this Statement of Work covered: income tax advice in relation to the [redacted]. The scope of work expressly excluded (among other work) corporate legal advice and drafting of legal documents. 234 Privilege has been claimed over parts of the document on the basis that "those parts record communications for the dominant purpose of JBS requesting legal advice from PwC (including Glenn Russell)". This Statement of Work identifies four ALPs, including Mr Russell. 235 Mr Russell gives evidence about this document at paragraphs 203-204 of his affidavit. Mr Russell's evidence is that the redacted parts of this Statement of Work summarise the scope of work identified by him after a discussion with Mr Sinokula and Mr Alvares (both JBS Australia) regarding the scope of tax advice to be provided in respect of how Primo would be held within the JBS Australia Group. 236 The Commissioner submits that, to the extent the redacted parts of this Statement of Work contain descriptions of the nature of legal advice sought, those descriptions are unlikely to reveal the content or substance of any advice in fact sought or obtained. 237 The Amici Curiae submit that the redacted parts of this document are not privileged. They submit that: those parts record a request for advice in relation to the implementation of Project Twiggy, [redacted]; the dominant purpose for seeking such advice was a commercial purpose, and not a privileged purpose; it follows that the document does not record communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia. 238 In my view, the parts of this document over which privilege is claimed are privileged. The relevant parts of this document describe the scope of legal work to be provided by lawyers at PwC Australia to JBS Australia in respect of income tax and stamp duty advice for Project Twiggy Phase 2. The shaded parts of this Statement of Work reflect instructions given by JBS Australia as to the legal work to be performed under the Statement of Work. This description of the nature of the legal advice sought is itself privileged. Further, disclosure of the shaded parts of this Statement of Work would tend to reveal legal advice from Mr Russell as to the matters on which he considered it would be prudent for JBS Australia to seek legal advice from him. 239 Insofar as the Amici Curiae submit that the advice described in the Statement of Work was commercial advice as distinct from legal advice, I do not accept that characterisation having regard to: the fact that the services to be provided were described as "legal services"; the fact that the services were to be provided by lawyers (albeit with the assistance of non-lawyers); and the nature of the services to be provided (in substance, generally, advice in relation to income tax and advice in relation to stamp duty). 240 I note for completeness that it does not follow from the above paragraph that all communications referable to, or connected with, this Statement of Work are necessarily privileged. Whether or not such communications are made for the dominant purpose of giving or receiving legal advice is an issue to be determined on a case-by-case basis. 241 For these reasons, I consider that the shaded parts of this document in the copy provided to the Court are, or record, communications made for the dominant purpose of giving or receiving legal advice. They are, therefore, protected by legal professional privilege.

[52]

A48 - PWC.011.005510 242 This document is a chain of emails between Mr Conomy (PwC Brazil), Mr Fuller (PwC Australia) and Mr Kulich (PwC USA) (copied to others at PwC Brazil, PwC Australia and PwC USA) dated 19 December 2014 regarding potential foreign tax issues related to the acquisition of Primo as part of Project Twiggy. The chain includes an email from Mr Conomy to Mr Fuller explaining the Brazilian CFC rules. Mr Russell is copied to the emails. 243 Privilege was originally claimed over the whole of the document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". However, the document has now been released in redacted form to the Commissioner. The privilege claim is maintained for pages 1, 2, 3 and 4 of the document, which are marked with the word "Privilege" in the copy provided to the Court, but not for the balance of the email chain. 244 Mr Russell gives evidence about this document at paragraphs 205-206 of his affidavit. His evidence is that this document involved work performed under Statement of Work No 3. It is Mr Russell's evidence that he needed to understand these issues in order to provide his Australian tax advice. He states that the structuring options referred to in the email were references to structures he was considering for the acquisition of Primo. 245 PwC Australia submits that Mr Fuller was "effectively acting as the agent of Mr Russell" in obtaining information from PwC Brazil that Mr Russell required for the purpose of providing his legal advice. It contends that it is reasonable to infer that the document was for the dominant purpose of Mr Russell providing legal advice to JBS. 246 The JBS Parties submit that this document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. 247 In my view, the parts of this document marked with the word "Privilege" in the copy provided to the Court are not privileged. In substance, the emails represent advice provided by Mr Conomy (of PwC Brazil) and Mr Fuller (an NLP) regarding potential foreign tax issues concerning structures being considered for the acquisition of Primo. Given that both Mr Conomy and Mr Fuller were not lawyers, I would characterise their advice as non-legal advice (albeit concerning tax issues). 248 As noted above, PwC Australia submits that Mr Fuller was effectively acting as the agent of Mr Russell in obtaining information from PwC Brazil that Mr Russell required for the purpose of providing his legal advice. This submission seems to rely on the authorities concerning third parties that have been discussed above. The contention seems to be that Mr Conomy of PwC Brazil was a third party expert providing an input to enable Mr Russell to provide legal advice to his client (JBS). I do not accept these submissions. I will assume for present purposes that Mr Fuller was acting as Mr Russell's agent. While I accept that Mr Russell needed to understand the foreign tax issues in order to provide his Australian tax advice, it does not follow that the dominant purpose of the communications was to enable Mr Russell to provide legal advice to his client. Based on my review of the document as a whole, I consider there to have been multiple purposes for the communications, including the giving of advice by Mr Conomy and Mr Fuller regarding foreign tax issues to assist in the development of the most appropriate acquisition structure. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 249 As noted above, the JBS Parties submit that the document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. However, for the communications to be privileged on this basis, it is necessary for the communications to be made for the dominant purpose of giving or receiving legal advice. For the reasons indicated above, I consider there to have been multiple purposes for these communications, such that the dominant purpose test is not satisfied. 250 I therefore conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, the parts of this document marked "Privilege" in the copy provided to the Court are not privileged.

[53]

A2 - PWC.007.001274 251 This document is an email exchange dated 11 and 12 January 2015 between Mr Fuller (PwC Australia - NLP) and Mr Kulich (PwC USA) regarding the inadvertent deconsolidation of the JBS Australia MEC Group. There are no ALPs copied to the emails. 252 Privilege has been claimed over the whole of the document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". 253 Mr Russell gives evidence regarding this document at paragraphs 207-210 of his affidavit. His evidence is that he was on leave when these emails were exchanged, and while not a party to the emails, he recalls discussing the concepts in the emails with Mr Fuller beforehand. He states that, because he was on leave, he asked Mr Fuller (orally) to contact Ms Garland (JBS USA) about the deconsolidation of the JBS Australia MEC Group. He states that this work was being considered under Statement of Work No 3, and that, around the same time, he was considering further advice PwC Australia would provide in respect of the inadvertent deconsolidation, which ultimately led to Statement of Work No 4. He states that the references to "dgp" are to a Delaware General Partnership. 254 PwC Australia submits that, by Mr Fuller engaging in this correspondence with Mr Kulich, it is reasonable to infer that Mr Fuller was acting in his role assisting Mr Russell to obtain information from PwC USA which was necessary for Mr Russell to provide his legal advice to JBS, and that Mr Fuller was "effectively acting as his agent in doing so". It contends that the communication is "clearly directed to matters the subject of the legal advice which Mr Russell was providing" and it is reasonable to infer the dominant purpose of this document was the provision of legal advice. In its reply written submissions, PwC Australia submits that the email is consistent with Mr Fuller assisting Mr Russell in respect of matters of international tax and obtaining necessary input from PwC USA. 255 The JBS Parties submit that this document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. 256 In my view, this document is not privileged. It is an exchange of emails between non-lawyers. No ALP was copied on the emails. In substance, the emails represent advice provided by Mr Fuller (an NLP) and Mr Kulich (PwC USA) regarding the deconsolidation of the JBS Australia MEC Group. Given that both Mr Fuller and Mr Kulich were not lawyers, I would characterise their advice as non-legal advice (albeit concerning tax issues). 257 As noted above, PwC Australia submits that Mr Fuller was assisting Mr Russell to obtain information from PwC USA which was necessary for Mr Russell to provide his legal advice to JBS. This submission seems to rely on the authorities concerning third parties that have been discussed above. The contention seems to be that Mr Kulich of PwC USA was a third party expert providing an input to enable Mr Russell to provide legal advice to his client (JBS). I am not persuaded by these submissions. I will assume for present purposes that Mr Fuller was acting as Mr Russell's agent. While I accept that Mr Russell discussed the concepts in the emails with Mr Fuller beforehand, that the subject-matter of the emails was being considered under Statement of Work No 3, and that Mr Russell was considering providing further advice in respect of the deconsolidation, it does not follow that the dominant purpose of the communications in these emails was to enable Mr Russell to provide legal advice to his client. Based on my review of the document, I consider there to have been multiple purposes for the making of the communications, including the giving of advice by Mr Fuller and Mr Kulich to assist the client in the resolution of the deconsolidation issue. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 258 Insofar as the JBS Parties submit that the email chain is privileged on the basis that it forms part of a "continuum of communications" that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work, I do not accept that submission. As already noted, Mr Russell was not copied on the emails. Further and in any event, for the reasons set out above, the dominant purpose test is not satisfied. 259 Having regard to the above matters, I conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, this document is not privileged.

[54]

A23 - PWC.007.001301 260 This document is an email chain dated between 10 and 15 January 2015 between Mr Fuller (PwC Australia - NLP) and Mr McGinnis (PwC USA) regarding a potential approach to address tax issues in relation to the Primo acquisition and to address the deconsolidation issue. No ALPs are copied to the emails. 261 Privilege has been claimed over the whole of the document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". 262 Mr Russell gives evidence at paragraph 210 of his affidavit that, while he was not party to the emails, he recalls discussing the concepts in the emails with Mr Fuller before the times appearing on the emails. 263 PwC Australia submits that: in the email chain, Mr Fuller is seeking input from tax specialists at PwC USA; that it is reasonable to infer that Mr Fuller had discussed this with Mr Russell prior to sending the email; and that in sending the email he was "effectively acting as Mr Russell's agent". It contends that the fact that Mr Russell is not copied to the email is not inconsistent with the communication being for the dominant purpose of Mr Russell providing legal advice to JBS, and that its purpose was directed to obtaining information Mr Russell needed for his advice. 264 The JBS Parties submit that this document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. 265 In my view, this document is not privileged. It is an exchange of emails between non-lawyers. No ALP was copied on the emails. In substance, the emails represent advice provided by Mr Fuller (an NLP) and Mr McGinnis (PwC USA) regarding a potential approach to address tax issues in relation to the Primo acquisition and to address the deconsolidation issue. Given that both Mr Fuller and Mr McGinnis were not lawyers, I would characterise their advice as non-legal advice (albeit concerning tax issues). 266 I do not accept PwC Australia's submission that the document is privileged on the basis that Mr Fuller (as agent for Mr Russell) was seeking input from tax specialists at PwC USA to enable Mr Russell to provide legal advice to JBS. While I accept that Mr Russell discussed the concepts in the emails with Mr Fuller before the times appearing on the emails, it does not follow that the dominant purpose of the communications was to enable Mr Russell to provide legal advice to his client. Based on my review of the document, I consider there to have been multiple purposes for the making of the communications, including the giving of advice by Mr Fuller and Mr McGinnis in relation to the Primo acquisition and the deconsolidation issue. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 267 I do not accept the JBS Parties' submission that the email chain is privileged on the basis that it forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. As already noted, Mr Russell was not party to the emails. Further and in any event, for the reasons set out above, the dominant purpose test is not satisfied. 268 I therefore conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, this document is not privileged.

[55]

R3 - PWC.009.000278 269 This document is an email dated 21 January 2015 from Mr Russell to Mr Fuller and Mr Denovan (all PwC Australia), copying Mr Stewart and others at PwC Australia and PwC USA, [redacted]. The subject line of the email is "Confidential and subject to LPP". The email attached an Excel spreadsheet named "[redacted]", but the attachment does not form part of the Sample Document. 270 Privilege has been claimed over the whole of the document on the basis that it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the SoW dated 15 January 2015" (that is, Statement of Work No 4). 271 Mr Russell gives evidence about this document at paragraphs 211-213 of his affidavit. His evidence is that ACA calculations are required to be undertaken in accordance with various rules set out in Divisions 701, 705 and 711 of the ITAA 1997, that he had asked Mark Reed (PwC Australia) to prepare some preliminary modelling, and that his email attached a summary of those calculations. It is Mr Russell's evidence that [redacted]. 272 The Amici Curiae submit that this document is not privileged. They submit that: the advice the subject of this email is, as contemplated by Statement of Work No 4, [redacted]; the dominant purpose for the provision of this advice was commercial, and not a privileged purpose; the advice was being given by NLPs at PwC Australia (in this case, Mr Reed), and not by an ALP; while the email was considered and sent by Mr Russell, advice sought for a commercial purpose does not become legal advice simply because it is given by a lawyer. It follows, the Amici Curiae submit, that this document does not record communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia. 273 In my view, this document is privileged. It is an email written by Mr Russell, an ALP, and includes his [redacted]. I consider this document to be a communication made by Mr Russell, an ALP, for the dominant purpose of giving legal advice. Further, I consider the document to be privileged on the basis that disclosure of the document would tend to reveal the contents or the substance of a privileged communication, namely legal advice given or to be given by Mr Russell regarding [redacted].

[57]

A13 - PWC.011.006109 275 This document is an email chain dated between 31 January 2015 and 4 February 2015 between Mr DeBellis, Mr Fuller and Mr Russell (PwC Australia) and Mr Kulich and Mr Stout (PwC USA) regarding the timing of a weekly internal call, the issuing of an updated step plan for Project Twiggy, and comments in relation to stamp duty implications of the updated step plan. The substantive emails in the email chain were authored by Mr DeBellis (an NLP) and Mr Fuller (an NLP). Mr Russell authored one brief email in the chain. 276 Privilege has been claimed over the whole of the document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". 277 Mr Russell gives evidence about this document at paragraphs 215-217 of his affidavit. His evidence is that this email chain is concerned with work done pursuant to Statement of Work No 4. He states that he needed to be satisfied in respect of any foreign tax and stamp duty implications before giving the "planning / structuring advice associated with the issues associated with the broader global restructure" as referred to under the heading "Income Tax" in the Statement of Work. Mr Russell states that his advice as to an appropriate structure and the Australian taxation issues associated with such a structure involved an iterative process. Mr Russell gives evidence that he participated in the weekly calls of the type referred to in the email chain, and that he discussed the concepts in Mr Fuller's 5.15 pm email on 1 February 2015 before Mr Fuller sent it. 278 Mr Alvares gives evidence at paragraphs 46-47 of his affidavit that this document reveals aspects of the content of various discussions he had with Mr Russell and the PwC team at this time about the options under consideration and the implications of those options. 279 PwC Australia submits that the reasonable inference is that the dominant purpose of this document was to obtain the input necessary for Mr Russell to provide his legal advice. 280 The JBS Parties submit that this document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. 281 In my view, this document is not privileged. Although Mr Russell was copied on the emails, and authored one brief email, in substance the emails represent advice provided by Mr DeBellis (an NLP) and Mr Fuller (an NLP) regarding the issuing of an updated step plan for Project Twiggy and stamp duty implications of the updated step plan. Given that both Mr DeBellis and Mr Fuller were not lawyers, I would characterise their advice as non-legal advice (albeit concerning tax issues). 282 As noted above, PwC Australia submits that the reasonable inference is that the dominant purpose of this document was to obtain the input necessary for Mr Russell to provide his legal advice. This submission appears to rely on the authorities concerning third parties discussed above. The contention seems to be that Mr DeBellis and Mr Fuller were third party experts providing an input to enable Mr Russell to provide legal advice to his client (JBS). I do not accept these submissions. While I accept that Mr Russell needed to be satisfied in respect of any foreign tax and stamp duty implications before giving the advice referred to in Statement of Work No 4, it does not follow that the dominant purpose of the communications was to enable Mr Russell to provide that advice. Based on my review of the document as a whole, I consider there to have been multiple purposes for these communications, including the giving of advice by Mr DeBellis and Mr Fuller regarding the issuing of an updated step plan for Project Twiggy and stamp duty implications of the updated step plan. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 283 As noted above, the JBS Parties submit that the document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. I do not accept this submission. For the communications to be privileged on this basis, it is necessary for the communications to be made for the dominant purpose of giving or receiving legal advice. For the reasons indicated above, I consider there to have been multiple purposes for these communications, such that the dominant purpose test is not satisfied. 284 While I accept Mr Alvares's evidence that this document reveals aspects of the content of various discussions he had with Mr Russell and the PwC team at this time about the options under consideration and the implications of those options, this does not establish that the document is privileged. It is unclear from this evidence whether the discussion related to legal or non-legal advice. In any event, this evidence does not establish that the relevant communications (those in the document) were made for the dominant purpose of giving or receiving legal advice. 285 I therefore conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, this document is not privileged.

[58]

A1 - PWC.007.001385 286 This document is a chain of emails dated between 5 and 7 February 2015 between Mr Fuller (PwC Australia - NLP), Mr Kulich and Mr Stout (PwC USA), and Cindy Garland (JBS USA) regarding options for structuring and financing the Primo acquisition. Mr Russell (an ALP) is copied to one of the emails in the chain (being the second last in time). 287 Privilege has been claimed over the whole of the document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". 288 Mr Russell gives evidence about this document (and Documents 13, 14 and 15, which are related) at paragraphs 218-227 of his affidavit. It is Mr Russell's evidence that these documents concern advice he was giving on the acquisition of Primo under Statement of Work No 3, and also in relation to the reconsolidation issue that arose to be dealt with under Statement of Work No 4. He states that Mr Fuller, Mr Kulich and Mr Stout were assisting him by considering foreign taxation issues in relation to the funding and acquisition structure. Mr Russell states that, while he cannot recall the specifics of discussions, he does recall that Mr Fuller would update him as to the thinking and consideration being given to these issues in the US. Mr Russell states that he considered it necessary to understand this for his advice. 289 Mr Alvares gives evidence at paragraph 43 of his affidavit that this email chain reveals several options for structuring and financing the Primo acquisition that he discussed at about this time with Mr Russell and the other PwC personnel, and reflects the type of communications that he (Mr Alvares) expected Mr Russell and his team to have with PwC USA and Ms Garland relating to those issues to arrive at the best option. 290 PwC Australia submits that it is reasonable to infer that the purpose of Mr Fuller's email sending options to Mr Kulich was to seek Mr Kulich's input (on Mr Russell's behalf) as to possible US tax implications for the purposes of Mr Russell providing his legal advice to JBS. It contends that the reasonable inference is that this document was a communication for the dominant purpose of Mr Russell providing legal advice. 291 The JBS Parties submit that this document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. 292 In my view, this document is not privileged. In substance, the emails represent advice provided by Mr Fuller (an NLP) regarding options for structuring and financing the Primo acquisition and a request for advice from Mr Kulich (of PwC USA) about these matters. Given the subject-matter of the advice and the fact that Mr Fuller was not a lawyer, I would characterise his advice as non-legal advice. Similarly, given the subject-matter and the fact that Mr Kulich was not a lawyer, I would characterise his prospective advice as non-legal advice. 293 As noted above, PwC Australia submits that the purpose of Mr Fuller's email (sending options to Mr Kulich) was to seek Mr Kulich's input (on Mr Russell's behalf) as to possible US tax implications for the purposes of Mr Russell providing his legal advice to JBS. This submission appears to rely on the authorities concerning third parties discussed above. The contention seems to be that Mr Kulich was a third party expert who would provide an input to enable Mr Russell to provide legal advice to his client (JBS). I do not accept these submissions. I will assume for present purposes that Mr Fuller was acting on Mr Russell's behalf. While I accept that Mr Russell needed to understand the thinking and consideration being given to foreign taxation issues in relation to the funding and acquisition structure in order to provide his Australian tax advice, and that Mr Fuller updated him at about this time on the thinking and consideration of those matters, it does not follow that the dominant purpose of the communications in the emails was to enable Mr Russell to provide legal advice to his client (JBS). Based on my review of the document, I consider there to have been multiple purposes for the communications, including the receiving of advice from Mr Kulich regarding options for structuring and financing the Primo acquisition to assist the client in relation to these issues. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 294 As noted above, the JBS Parties submit that the document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. However, for the communications to be privileged on this basis, it is necessary for the communications to be made for the dominant purpose of giving or receiving legal advice. For the reasons set out above, I consider there to have been multiple purposes for these communications, such that the dominant purpose test is not satisfied. 295 While I accept Mr Alvares's evidence that this email chain reveals several options for structuring and financing the Primo acquisition that he discussed at about this time with Mr Russell and the other PwC personnel, and reflects the type of communications that he (Mr Alvares) expected Mr Russell and his team to have with PwC USA and Ms Garland relating to those issues to arrive at the best option, this does not establish that the document is privileged. It is unclear from this evidence whether the discussions to which Mr Alvares refers constituted legal advice or non-legal advice. In any event, this evidence does not establish that the relevant communications were made for the dominant purpose of giving or receiving legal advice. 296 I therefore conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, this document is not privileged.

[59]

A37 - PWC.007.001389 297 This document is an email dated 8 February 2015 from Mr Stout (PwC USA) to Mr McGinnis (PwC USA) and Mr Fuller (PwC Australia - NLP), copied to Mr Kulich (PwC USA) with the subject line "JBS - Cayman Option (Another Alternative)". The email contains advice from Mr Stout about the possible imposition of a Cayman Islands company in the funding structure for the Primo acquisition as part of Project Twiggy. No ALPs are copied on the email. 298 I note that the email that is Document 13 forms part of the email chains that are Documents 14 and 15, discussed below. I also note that Mr Russell was included in subsequent emails in those email chains. 299 Privilege has been claimed over the whole of Document 13 on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". 300 Mr Russell gives evidence about this document and Documents 12, 14 and 15 at paragraphs 218-227 of his affidavit. Some of that evidence has been referred to above, in the context of considering Document 12. Mr Russell also gives evidence that the email which is Document 13 refers to the possibility that was at one stage contemplated involving the possible imposition of a Cayman Islands company in the funding structure for the Primo acquisition. Mr Russell states that, prior to the email, he had been party to a number of emails and discussions with Mr Kulich and Mr Fuller about this proposal and associated issues. Mr Russell gives evidence that the email that is Document 13 (that is, the email from Mr Stout of 8 February 2015 at 9.29 am) relates to the possibility referred to in point 3 of Mr Fuller's email which is Document 12. Mr Russell states that Mr Stout's email, and the subsequent emails in the chain between Mr Fuller and Mr Stout, raise potential issue (including potential US and Brazilian issue) that might need to be considered in relation to the possibility. Mr Russell states that he considered it necessary to understand the thinking of Mr Kulich and Mr Stout in relation to US tax implications of the structures being considered in the emails in order to provide advice on the Australian tax aspects of the structuring of the Primo acquisition, including oral advice to be given to Mr Alvares at about that time. 301 PwC Australia submits that the reasonable inference is that the dominant purpose of Document 13 was Mr Russell seeking input necessary to provide his legal advice. It emphasises that Document 13 is an email fully contained within Document 15. PwC Australia also relies on its submissions in relation to Document 15, which is discussed below. 302 The JBS Parties submit that this document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. 303 In my view, this document is not privileged. In substance, the email contains advice provided by Mr Stout (of PwC USA) regarding the possible imposition of a Cayman Islands company in the funding structure for the Primo acquisition. Given the subject-matter of the advice and the fact that Mr Stout was not a lawyer, I would characterise his advice as non-legal advice. 304 As noted above, PwC Australia submits that the dominant purpose of Document 13 was Mr Russell seeking input necessary to provide his legal advice. This submission appears to rely on the authorities concerning third parties discussed above. The contention seems to be that Mr Stout was a third party expert who would provide an input to enable Mr Russell to provide legal advice to his client (JBS). I do not accept this submission. While I accept that Mr Russell needed to understand the thinking and consideration being given to foreign taxation issues in relation to the funding and acquisition structure in order to provide his Australian tax advice, and that Mr Fuller updated him at about this time on the thinking and consideration of those matters, it does not follow that the dominant purpose of the communication in the email was to enable Mr Russell to provide legal advice to his client (JBS). Based on my review of the document, I consider there to have been multiple purposes for the communication, including the giving of advice by Mr Stout regarding the possible imposition of a Cayman Islands company in the funding structure for the Primo acquisition to assist the client in relation to these issues. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 305 To the extent that PwC Australia relies on its submissions in relation to Document 15, those submissions do not suggest a different conclusion - I refer to my reasons, below, in relation to that document. 306 As noted above, the JBS Parties submit that the document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. However, for the communication to be privileged on this basis, it is necessary for the communication to be made for the dominant purpose of giving or receiving legal advice. For the reasons set out above, I consider there to have been multiple purposes for this communication, such that the dominant purpose test is not satisfied. 307 I therefore conclude that the communication was not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, this document is not privileged.

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A49 - PWC.011.006279 308 This document is a chain of emails dated between 8 and 10 February 2015. The first email in this email chain (in point of time) is the email from Mr Stout (PwC USA) dated 8 February 2015 at 9.28 am that is Document 13, discussed above. After this, there are three emails between Mr Fuller (PwC Australia - NLP) and Mr Stout, copied to Mr Kulich and Mr McGinnis (PwC USA) and Mr Russell (PwC Australia) regarding the funding and acquisition structure for the Primo acquisition. The next email in the chain is from Mr Russell to Mr Fuller dated 10 February 2015 at 11.47 am. In that email, Mr Russell asked Mr Fuller whether Mr Stout had got back to him on the subject, and whether there was any other news from the US, as he was expecting Mr Alvares to ask him for an update that day. The last email in the chain is from Mr Fuller to Mr Russell dated 10 February 2015 at 12.31 pm. Mr Fuller stated that he had spoken to Mr Stout and they might speak again. Mr Fuller outlined a new plan of his, and stated that Mr Stout liked it, as it avoided most of the US issues. 309 There is substantial overlap between this email chain and the email chain that is Document 15. Document 15 contains one additional, later email. 310 Privilege has been claimed over the whole of the document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". 311 Mr Russell gives evidence about this document and Documents 12, 13 and 15 at paragraphs 218-227 of his affidavit. The substance of that evidence has been referred to above, in the context of considering Documents 12 and 13. 312 PwC Australia submits that in the three emails in the email chain after the email that is Document 13, Mr Fuller and Mr Stout discuss and develop the thinking around possible US tax implications on the proposed structure for JBS. PwC Australia submits that these emails are part of the continuum of correspondence mainly between Mr Fuller and PwC USA for the purpose of obtaining input from PwC USA on the US tax implications of structures being considered by Mr Russell as part of his legal advice. PwC Australia submits that it is reasonable to infer that "the communication" was for the dominant purpose of Mr Russell's legal advice. It is unclear whether the reference to "the communication" is to the last email in this email chain or each of the emails in the chain. 313 The JBS Parties submit that this document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. 314 In my view, this document is not privileged. In substance, the email chain contains advices provided by Mr Stout (of PwC USA) and Mr Fuller (PwC Australia - NLP) regarding the funding and acquisition structure for the Primo acquisition. Given the subject-matter of the advice and the fact that Mr Stout and Mr Fuller were not lawyers, I would characterise their advice as non-legal advice. 315 As noted above, PwC Australia submits that the dominant purpose of the communications was Mr Russell seeking input necessary to provide his legal advice. This submission appears to rely on the authorities concerning third parties discussed above. The contention appears to be that Mr Stout was a third party expert who would provide an input to enable Mr Russell to provide legal advice to his client (JBS). I do not accept this submission. While I accept that Mr Russell needed to understand the thinking and consideration being given to foreign taxation issues in relation to the funding and acquisition structure in order to provide his Australian tax advice, it does not follow that the dominant purpose of the communications in the emails was to enable Mr Russell to provide legal advice to his client (JBS). Based on my review of the document, I consider there to have been multiple purposes for the communications. In relation to the first email in the email chain (which is Document 13), I refer to my reasons, above, in relation to that email. In relation to the next three emails in the email chain, being the emails between Mr Fuller and Mr Stout, copied to others (including Mr Russell), I consider there to have been multiple purposes for these communications, including the giving of advice by Mr Stout (or the receiving of advice from Mr Stout) regarding the funding and acquisition structure for the Primo acquisition to assist the client in relation to these issues. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. In relation to the last two emails in the email chain, being emails between Mr Russell and Mr Fuller, I consider there to have been multiple purposes for these communications, including Mr Fuller updating Mr Russell on Mr Stout's advice and Mr Fuller's own views, so that Mr Russell could convey their views to Mr Alvares. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 316 As noted above, the JBS Parties submit that the document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. However, for the communications to be privileged on this basis, it is necessary for the communications to be made for the dominant purpose of giving or receiving legal advice. For the reasons set out above, I consider there to have been multiple purposes for these communications, such that the dominant purpose test is not satisfied. 317 I therefore conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, this document is not privileged.

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A14 - PWC.011.006280 318 This document is a chain of emails dated between 8 and 10 February 2015. It is substantially the same email chain as Document 14, with the addition of one email, being an email from Mr Russell (PwC Australia - ALP) to Mr DeBellis (PwC Australia - NLP) dated 10 February 2015 at 12.42 pm. In this further email, Mr Russell asks whether Mr DeBellis has some time "asap to give this potential revision to the plan some thought?". 319 Privilege has been claimed over the whole of the document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". 320 Mr Russell gives evidence about this document and Documents 12-14 at paragraphs 218-227 of his affidavit. Much of that evidence has been referred to above, in the context of considering Documents 12 and 13. Mr Russell also gives evidence that he considered it necessary for him to understand, as part of the context, the potential stamp duty implications of the possible structures in order for him to form his view on, and his advice as to, the funding and acquisition structure. 321 PwC Australia submits that the reasonable inference is that the dominant purpose of "this email" was Mr Russell seeking input necessary to provide his legal advice. It is unclear whether the reference to "this email" is to each of the emails in the email chain or only the last email in the email chain. I will consider both of these possibilities. 322 The JBS Parties submit that this document forms part of a "continuum of communications between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations" under the Statements of Work. 323 In my view, this document is not privileged. 324 Insofar as the emails before the latest email are concerned, I refer to my reasons, above, in relation to Document 14. 325 Insofar as the latest email is concerned, as noted above, PwC Australia submits that the dominant purpose of the communication was Mr Russell seeking input necessary to provide his legal advice. This submission appears to rely on the authorities concerning third parties discussed above. The contention appears to be that Mr DeBellis was (or was akin to) a third party expert who would provide an input to enable Mr Russell to provide legal advice to his client (JBS). I do not accept that submission. While I accept that Mr Russell needed to understand the potential stamp duty implications of the possible structures in order for him to form his view on, and his advice as to, the funding and acquisition structure, it does not follow that the dominant purpose of the communication was to enable Mr Russell to provide legal advice to his client (JBS). Based on my review of the email, I consider there to have been multiple purposes for the communication, including the receiving of advice from Mr DeBellis (an NLP) on stamp duty issues to assist in the development of the funding and acquisition structure for the acquisition of Primo. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 326 As noted above, the JBS Parties submit that the document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. However, for the communication to be privileged on this basis, it is necessary for the communication to be made for the dominant purpose of giving or receiving legal advice. For the reasons set out above, I consider there to have been multiple purposes for this communication, such that the dominant purpose test is not satisfied. 327 I therefore conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, this document is not privileged.

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A39 - PWC.007.001408 328 This document is a chain of emails dated 11 February 2015 between Ms Garland (JBS USA) and Mr Fuller (PwC Australia - NLP) (copied to Mr Kulich and Mr Stout (PwC USA)) regarding the acquisition of Primo (Project Twiggy). The first is an email from Ms Garland asking whether cash needed "to actually flow through to all legal entities or can this be paper trail only?". The second is an email from Mr Fuller confirming that "Cash can go direct from beginning point to the end point, at the direction of the intermediate parties". The remainder of the emails in the chain relate to setting up a call. There are no ALPs copied to the emails (save that Mr Russell was blind copied to an email). 329 Privilege has been claimed over the whole of the document on the basis that it forms part of a "confidential continuum of communications between the client and PwC (including PwC lawyers and non-legal advisors working under the direction of a PwC lawyer or on a legal services engagement) for the dominant purpose of obtaining legal advice". 330 Mr Alvares gives evidence that these emails related to whether the acquisition of Primo could be funded by way of a loan and that he needed "taxation advice" from PwC Australia about this issue. Mr Alvares states that he expected Mr Russell to engage with JBS USA and PwC USA and keep them informed. Mr Russell was blind copied to Mr Fuller's email by Mr Fuller. Mr Russell states these emails concerned the funding structure he was required to advise on and that he was involved in oral and email communication concerning this issue at the time. It is Mr Russell's evidence that he discussed "the associated legal issues" with Mr Alvares and reported on those discussions in a subsequent email to Mr Fuller, Mr Kulich and Mr Stout. 331 PwC Australia submits that the question from Ms Garland and the response from Mr Fuller "are simple matters of Australia law". It submits that the question whether there might be adverse US tax law consequences arising from the funding of the Primo acquisition was highly relevant to the funding structure about which Mr Russell was advising. PwC Australia submits that Mr Fuller was "effectively acting as the agent of Mr Russell in relaying basic tax analysis and arranging a discussion with PwC US and Ms Garland in relation to a matter on which Mr Russell was providing legal advice". It contends that the reasonable inference is that the email was for the dominant purpose of Mr Russell providing legal advice to JBS. 332 In my view, this document is not privileged. While I accept the evidence of Mr Alvares and Mr Russell set out above, that evidence does not establish that the communications in the emails were made for the dominant purpose of giving or receiving legal advice (namely, Mr Russell giving legal advice on Australian tax law). Based on my review of the emails, I consider there to have been multiple purposes for the communications, including Mr Fuller giving advice to Ms Garland on a particular issue concerning the structure of the acquisition of Primo. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 333 I therefore conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, this document is not privileged.

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A43 - PWC.011.006361 334 This document is a chain of emails dated 12 and 13 February 2015 between Mr Fuller (PwC Australia - NLP), Mr Russell (PwC Australia - ALP) and Mr Kulich and Mr Stout (PwC USA) regarding the proposed structure for the acquisition of Primo as part of Project Twiggy. The first is an email from Mr Fuller setting out the proposed steps for the Primo acquisition and referring to the need to resolve other issues. The second is an email from Mr Kulich (sent from Mr Stout's email address) regarding the proposed transaction and referring to a conversation with Ms Garland (JBS USA). The third is an email from Mr Russell seeking an update from Mr Stout and Mr Kulich. The fourth is a response from Mr Kulich. 335 Privilege has been claimed over the whole of the document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". 336 Mr Russell gives evidence about this document at paragraphs 232-234 of his affidavit. His evidence is that Mr Fuller's email records the acquisition structure formulated by Mr Russell and discussed with Mr Fuller. He states that he sent his email to Mr Stout and Mr Kulich to seek clarification on matters that were relevant to him advising upon the appropriateness of the proposed structure and the Australian taxation consequences. 337 PwC Australia submits that, in sending the first email in the chain, Mr Fuller was "effectively acting as Mr Russell's agent" for the purpose of obtaining input from PwC USA. It contends that the reasonable inference is that this document was for the dominant purpose of Mr Russell providing his legal advice. 338 The JBS Parties submit that this document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. 339 In my view, this document is not privileged. Although Mr Russell authored one (brief) email in this chain, and was copied on the other emails, in substance the emails represent the seeking of advice from, and the provision of advice by, PwC USA about the proposed acquisition structure for the Primo acquisition. Given that Mr Kulich and Mr Stout, of PwC USA, were not lawyers, I would characterise their advice as non-legal advice. 340 As noted above, PwC Australia submits that Mr Fuller was "effectively acting as Mr Russell's agent" for the purpose of obtaining input from PwC USA, and that the communications were for the dominant purpose of Mr Russell providing his legal advice. This submission appears to rely on the authorities, discussed above, regarding third parties. The contention appears to be that Mr Kulich and Mr Stout were third party experts providing an input to enable Mr Russell to provide legal advice to his client (JBS). I do not accept these submissions. I will assume for present purposes that Mr Fuller was acting as Mr Russell's agent. While I accept that Mr Russell sent his email to Mr Stout and Mr Kulich to seek clarification on matters that were relevant to him advising upon the appropriateness of the proposed structure and the Australian taxation consequences, it does not follow that the dominant purpose of the communications was to enable Mr Russell to provide legal advice to his client. Based on my review of the document, I consider there to have been multiple purposes for the communications. In relation to Mr Fuller's initial email, these purposes include the receiving of advice from PwC USA to assist in the development of the most appropriate acquisition structure. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. In relation to Mr Russell's brief email, the purposes include requesting input from PwC Brazil on the proposed acquisition structure to assist in the development of the most appropriate structure. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 341 As noted above, the JBS Parties rely on the communications as constituting part of a "continuum of communications". However, for the communications to be privileged on this basis, they must satisfy the dominant purpose test. For the reasons given above, the communications do not satisfy that test. 342 I therefore conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, this document is not privileged.

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A50 - PWC.011.006363 343 This document comprises an email chain dated between 11 and 13 February 2015. The email chain is between personnel at JBS USA, PwC USA and PwC Australia regarding the proposed structure for the acquisition of Primo as part of Project Twiggy. The first email in the chain is from Ms Garland (JBS USA) to Mr Kulich and Mr Stout (PwC USA) and Mr Fuller (PwC Australia - NLP) asking questions in relation to the timing of the reconsolidation of the JBS Australia tax consolidated group. No ALPs were party to that email. The second, third and fourth emails relate to setting up a call. No ALPs were party to those emails. The fifth email is from Mr Stout attaching the slide deck. No ALPs were party to that email. The final email is from Mr Fuller to personnel at PwC Australia (Mr Russell (ALP), Mr Denovan (NLP) and Mr DeBellis (NLP)), copied to personnel at PwC USA (Mr Kulich and Mr Stout). The email set out Mr Fuller's comments on the proposed acquisition structure. Mr Fuller's email end by stating: "We all need to reflect on the consequences of the various consol groups, hybrids, residence and loans etc that exist during the steps until we get to 1 July to confirm that we have it all covered at each point. Can we do that as much as possible today Aus, and I'll call later in your day?". 344 Attached to the latest two emails is a slide deck titled "JBS USA Holdings, Inc - Project Twiggy - Acquisition Structure" (Document 19). It is a draft document dated 9 February 2015. On page 2, under the heading "Disclaimer", it is stated that "[t]his document has been prepared pursuant to an engagement between [PwC USA] and JBS USA …". The disclaimer also states that "PwC [USA] is not permitted to render legal and/or regulatory services. This document is therefore not meant to be a legal opinion nor is it meant to provide any legal advice". The document sets out a series of proposed steps for the acquisition of Primo. At the end of the document, there is a notation that PwC USA has copyright in the document. 345 Privilege has been claimed over the whole of Document 18 on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". 346 Privilege has been claimed over the whole of Document 19 on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice" and an attachment to an email "which communicated confidential legal advice, or a request for confidential legal advice, between a lawyer and a client, and the attachment was relevant to the seeking or the provision of that legal advice". 347 Mr Alvares gives evidence that he received draft step plans for the acquisition of Primo from PwC Australia and discussed them with Mr Russell. Mr Russell gives evidence that the structure set out in the slide deck reflects the structure he formulated and advised on and that the observations in the email from Mr Fuller reflected points Mr Russell had discussed with him. 348 PwC Australia submits that: the latest email in the chain is part of the ongoing communications between Mr Fuller and Mr Russell and PwC USA for the purposes of the legal advice Mr Russell is providing; Mr Fuller was "acting effectively as Mr Russell's agent" in having such communications with PwC USA; it is to be inferred that the slide deck (which was attached to the latest two emails) contains Mr Russell's working advice in respect of Project Twiggy; and that the reasonable inference is that the communication (comprising the email and attachment) was for the dominant purpose of Mr Russell providing legal advice. The reference here to "the email" appears to relate to the latest email in the chain, but I will consider each of the communications in the email chain (including that email). 349 The JBS Parties submit that this document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. The JBS Parties also submit that this document constitutes legal advice given by lawyers (including Mr Russell). 350 In my view, Documents 18 and 19 are not privileged. In relation to the emails before the latest email in the email chain, in substance these emails constitute communications between Ms Garland (JBS SA) and Mr Stout and Mr Kulich (PwC USA) and Mr Fuller (PwC Australia - NLP) in which Ms Garland sought their advice on aspects of the proposed acquisition structure for the Primo acquisition. Given that Mr Kulich, Mr Stout and Mr Fuller were not lawyers, I would characterise their advice as non-legal advice. In relation to the latest email in the chain, in substance this constitutes advice by Mr Fuller (an NLP). Again, I would characterise his advice as non-legal advice. 351 In relation to the slide deck, in substance, this constitutes non-legal advice by PwC USA to JBS USA in relation to the proposed structure for the Primo acquisition. The slide deck is presented as a PwC USA document. It states that it contains non-legal advice. It was provided by PwC USA (Mr Stout) to JBS USA (Ms Garland) as an attachment to Mr Stout's email dated 13 February 2015 (7.14 am). The fact that the structure set out in the slide deck reflects the structure Mr Russell formulated does not affect this characterisation, having regard to the other matters to which I have referred. 352 As noted above, PwC Australia submits that Mr Fuller was "acting effectively as Mr Russell's agent" in having communications with PwC USA, and that the communication (comprising the email and attachment) was for the dominant purpose of Mr Russell providing legal advice. This submission appears to rely on the authorities, discussed above, regarding third parties. The contention appears to be that Mr Kulich and Mr Stout were third party experts providing an input to enable Mr Russell to provide legal advice to his client (JBS). I do not accept these submissions. I will assume for present purposes that Mr Fuller was acting as Mr Russell's agent. While I accept the evidence of Mr Alvares and Mr Russell set out above, it does not follow that the dominant purpose of the communications in the emails was to enable Mr Russell to provide legal advice to his client. Based on my review of the document, I consider there to have been multiple purposes for the communications. In relation to the emails before the latest email, the purposes include Ms Garland seeking (non-legal) advice from Mr Kulich, Mr Stout and Mr Fuller on aspects of the proposed acquisition structure. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. In relation to the latest email in the email chain, these purposes include the provision of (non-legal) advice by Mr Fuller on the proposed acquisition structure to assist in the development of the most appropriate acquisition structure. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 353 As noted above, the JBS Parties rely on the communications as constituting part of a "continuum of communications". However, for the communications to be privileged on this basis, they must satisfy the dominant purpose test. For the reasons given above, the communications do not satisfy that test. Insofar as the JBS Parties submit that this document constitutes legal advice given by lawyers (including Mr Russell), I do not accept that submission. The email chain does not include any substantive emails from Mr Russell or from any ALP. To the extent that Mr Russell gives evidence that the points in Mr Fuller's email "reflect points that I had previously discussed with Mr Fuller", this evidence is insufficiently specific to enable me to conclude that the email tends to reveal the substance of Mr Russell's legal advice. To the extent that Mr Russell gives evidence that the slide deck is "a re-presentation of my structure, including in diagrammatic form, with some further elaboration", this evidence is insufficiently specific to enable me to conclude that the email tends to reveal the substance of Mr Russell's legal advice. 354 I therefore conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, Documents 18 and 19 are not privileged.

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R4 - PWC.003.000846 361 This document is an email chain dated between 17 and 19 February 2015 containing three emails. The first email is dated 17 February 2015 and is from Ms Dale (JBS Australia) to Ms Garland and Mr White (both JBS USA), and Mr Sinokula and Mr Veiga (both JBS Australia). It sets out some questions about [redacted] the Primo acquisition. The second email is dated 19 February 2015 and is from Ms Garland to Mr Russell (PwC Australia - ALP) and Mr Fuller (PwC Australia - NLP) forwarding Ms Dale's email, providing an update [redacted], and setting out some queries. The third email is dated 19 February 2015 and is from Mr Russell to Ms Garland (copying Ms Dale and others). It contains a response from Mr Russell to Ms Garland's and Ms Dale's questions. 362 Privilege has been claimed over the first email in the chain (from Ms Dale) on the basis that it is "a copy of a communication created by PwC for the dominant purpose set out above (Propend)". Privilege has also been claimed on the additional basis that it is "for the dominant purpose of JBS requesting or being provided with legal advice from JBS in-house lawyers (including Jacinta Dale)". Privilege has been claimed over the second email in the chain (from Ms Garland) on the basis that it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Global Restructure Project - Australian Income Tax and Stamp Duty Legal Advice' SoW dated 15 January 2015, in respect of which Glenn Russell is the relevant ALP partner". Privilege has also been claimed on the basis that it is "a copy of a communication created by PwC for the dominant purpose set out above (Propend)". Privilege has been claimed over the third email in the chain (from Mr Russell) on the basis that it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Global Restructure Project - Australian Income Tax and Stamp Duty Legal Advice' SoW dated 15 January 2015, in respect of which Glenn Russell is the relevant ALP partner". 363 Mr Russell's evidence is that he understood that several of the questions from Ms Dale in the first email in the chain related to work being undertaken by Mr Wogan (an ALP), and that he accordingly forwarded Ms Dale's email to Mr Wogan. Russell gives evidence that Mr Wogan responded with an email reproducing various of Ms Dale's questions together with what Mr Russell understood to be Mr Wogan's response. Mr Russell's email (the third email in the chain) reproduced the draft response provided by Mr Wogan. 364 In my view, this document is privileged on the basis that it records communications made for the dominant purpose of providing or obtaining legal advice (namely, legal advice in respect of work being done [redacted]) from one or more ALPs at PwC Australia (namely, Mr Russell and Mr Wogan). While Statement of Work No 4 excluded corporate legal advice, this is not determinative as to whether legal advice was in fact provided.

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R6 - PWC.011.006873 369 This document and Document 24 (discussed below) are different versions of an email chain dated 18 March 2015 between Mr Sinokula (JBS Australia), Mr Stewart (PwC Australia - NLP) and Mr Russell (PwC Australia - ALP). The first email in both documents is from Mr Sinokula to Mr Stewart and Mr Russell raising a question in relation to the Australian taxation treatment of [redacted]. The second email in Document 23 is from Mr Stewart to Mr Russell (not copied to Mr Sinokula) marked "Glenn - for your review" and containing a draft response to Mr Sinokula's question. 370 Privilege has been claimed over the first email in the chain in both Document 23 and Document 24 on the basis that it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Project Twiggy Legal Services - Income tax and stamp duty advice (Phase 2)' SoW dated 9 December 2014, in respect of which Glenn Russell is the relevant ALP partner". Privilege has also been claimed on the basis that it is "a copy of a communication created by PwC for the dominant purpose set out above (Propend)". Privilege has been claimed over the second email in Document 23 on the basis that it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Project Twiggy Legal Services - Income tax and stamp duty advice (Phase 2)' SoW dated 9 December 2014, in respect of which Glenn Russell is the relevant ALP partner". 371 Mr Russell gives evidence that prior to sending his email to Mr Sinokula (the second email in the chain in Document 24), he reviewed Mr Stewart's draft and satisfied himself that it was correct. 372 The Commissioner submits that the fact that the request from Mr Sinokula was directed to Mr Stewart indicates that the dominant purpose of this document was for the provision of advice by Mr Stewart and not Mr Russell. 373 The Amici Curiae submit that Documents 23 and 24 are not privileged. They submit that: these emails are concerned with commercial matters and not legal advice; the advice is sought by Mr Sinokula from Mr Stewart, an NLP with the relevant subject matter expertise; the fact that the advice drafted by Mr Stewart was ultimately sent by Mr Russell to Mr Sinokula (Document 24) does not convert the advice to legal advice; it follows that Document 23 and Document 24 do not record communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers from PwC Australia. 374 In my view, this document is privileged. In relation to the first email, the dominant purpose of the communication was the giving or receiving of legal advice. The email was in substance a request for advice on an issue of Australian taxation law, namely the Australian taxation treatment [redacted] in connection with the Primo acquisition. The email was sent to both Mr Stewart (an NLP) and Mr Russell (an ALP). Although the text of the email was addressed to Mr Stewart, I consider the email to constitute a request for advice from Mr Russell, as he was a lawyer and the email raised an issue of Australian taxation law. Further, in circumstances where Mr Russell was a lawyer, and the issue concerned Australian taxation law, I would characterise the advice that was requested as legal advice. The first email is therefore privileged. 375 In relation to the second email, this was a draft of advice to be given to the client on the issue of Australian taxation law. Although the draft advice was prepared by an NLP (Mr Stewart), in circumstances where the advice was to be given by Mr Russell (an ALP) I consider that the communication was made for the dominant purpose of the giving of legal advice. Further, I consider that disclosure of the document would tend to reveal a privileged communication, namely legal advice given or to be given by Mr Russell. The second email is therefore also privileged.

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R7 - PWC.011.006875 376 As noted above, Documents 23 and 24 are different versions of an email chain dated 18 March 2015 between Mr Sinokula (JBS Australia), Mr Stewart (PwC Australia - NLP) and Mr Russell (PwC Australia - ALP). The first email in both documents is from Mr Sinokula to Mr Stewart and Mr Russell raising a question in relation to the Australian taxation treatment [redacted] in connection with the Primo acquisition. The second email in Document 24 is from Mr Russell to Mr Sinokula responding to Mr Sinokula's question in relation to the Australian taxation treatment [redacted] in connection with the Primo acquisition. Mr Russell's email (the second email in Document 24) is in substantially the same terms as Mr Stewart's draft (the second email in Document 23). The third email in Document 24 is from Mr Sinokula thanking Mr Russell for his email. 377 Privilege has been claimed over the first email in the chain in both Document 23 and Document 24 on the basis that it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Project Twiggy Legal Services - Income tax and stamp duty advice (Phase 2)' SoW dated 9 December 2014, in respect of which Glenn Russell is the relevant ALP partner". Privilege has also been claimed on the basis that it is "a copy of a communication created by PwC for the dominant purpose set out above (Propend)". Privilege has been claimed over the substantive part of the second email in Document 24 on the basis that it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Project Twiggy Legal Services - Income tax and stamp duty advice (Phase 2)' SoW dated 9 December 2014, in respect of which Glenn Russell is the relevant ALP partner". Privilege is not claimed over the third email. 378 The Amici Curiae's submissions in relation to this document have been set out above in the context of Document 23. 379 In my view, the parts of this document marked with the word "Privilege" in the copy provided to the Court are privileged. In relation to the first email, I refer to my reasons in relation to Document 23, set out above. In relation to the second email, I consider that the dominant purpose of the communication was the giving or receiving of legal advice. The email was sent by Mr Russell to his client. Given that Mr Russell was a lawyer, and the advice concerned an issue of Australian taxation law, I would characterise the advice as legal advice. The fact that the substance of the email was drafted by Mr Stewart, does not detract from these conclusions, in circumstances where Mr Russell substantively reviewed the advice and adopted it as his own.

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A3 - PWC.011.006910 380 This document is a chain of emails dated between 20 February 2015 and 23 March 2015 between Mark Conomy, Priscila Vergueiro and Philippe Jeffrey (all of PwC Brazil), Mr Kulich (PwC USA), and Mr Fuller and Mr Denovan (both PwC Australia, NLPs), copied to other personnel at PwC Australia, PwC USA and PwC Brazil, regarding the implications (in particular, as to tax and stamp duty) of the proposed corporate and financing structure of the acquisition of Primo by JBS Australia, and the potential issues arising in different jurisdictions in respect of a reconsolidation of the JBS Australia MEC Group. Mr Russell (PwC Australia - ALP) is copied to the emails. 381 Privilege has been claimed over parts of the document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". 382 Mr Russell gives evidence that this email chain concerns work done pursuant to Statement of Work No 4. Mr Russell states that before he could finalise his advice under that Statement of Work, he needed to ensure that any advice he gave [redacted] did not give rise to unacceptable issues [redacted], and therefore asked Mr Fuller and Mr Kulich to ensure that JBS Brazil, with input from PwC Brazil, considered the issue and informed Mr Russell of any issues that arose from their perspective. Ms Manzano gives evidence that this email chain reveals the subject and part of the content of discussions she had with Mr Conomy and Ms Vergueiro, and that she required this information to assist Mr Kaddissi (a lawyer at JBS SA) to prepare his advice to the JBS SA Board. 383 PwC Australia submits that Mr Fuller was "effectively acting as Mr Russell's agent" and Mr Kulich was "effectively acting as the agent of JBS and/or Mr Russell". It contends that the reasonable inference is that "the email" was for the dominant purpose of Mr Russell providing legal advice to JBS. I take the reference to "the email" to be a reference to each of the emails in the email chain in respect of which privilege is claimed. 384 The JBS Parties submit that this document is a part of a "continuum of communications" between JBS lawyers and others (including PwC employees) that are directly related to the performance by the in-house lawyers (including Mr Kaddissi) in their duty as lawyers to advise JBS parties. 385 In my view, the parts of this document marked with the word "Privilege" in the copy provided to the Court are not privileged. In substance, the emails represent advice provided by Mr Conomy (of PwC Brazil), Ms Vergueiro (of PwC Brazil) and Mr Fuller (an NLP) regarding the implications (in particular, as to tax and stamp duty) of the proposed corporate and financing structure of the acquisition of Primo by JBS Australia, and the potential issues arising in different jurisdictions in respect of a reconsolidation of the JBS Australia MEC Group. Given that Mr Conomy, Ms Vergueiro and Mr Fuller were not lawyers, I would characterise their advice as non-legal advice (albeit concerning tax issues). 386 As noted above, PwC Australia submits that Mr Fuller was "effectively acting as Mr Russell's agent" and Mr Kulich was "effectively acting as the agent of JBS and/or Mr Russell" and that the emails were for the dominant purpose of Mr Russell providing legal advice to JBS. This submission appears to rely on the authorities, discussed above, concerning third parties. The contention appears to be that Mr Conomy and Ms Vergueiro of PwC Brazil were third party experts providing an input to enable Mr Russell to provide legal advice to his client (JBS). I do not accept these submissions. I will assume for present purposes that Mr Fuller was acting as Mr Russell's agent and that Mr Kulich was acting as the agent of JBS and/or Mr Russell. While I accept that Mr Russell needed to ensure that any advice he gave in respect [redacted], it does not follow that the dominant purpose of the communications was to enable Mr Russell to provide legal advice to his client. Based on my review of the document, I consider there to have been multiple purposes for the communications, including the giving of advice by Mr Conomy and Ms Vergueiro regarding the implications (in particular, as to tax and stamp duty) of the proposed corporate and financing structure of the acquisition of Primo by JBS Australia, and the potential issues arising in different jurisdictions in respect of a reconsolidation of the JBS Australia MEC Group. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 387 As noted above, the JBS Parties submit that this document is part of a "continuum of communications" between JBS lawyers and others (including PwC employees) that are directly related to the performance by the in-house lawyers (including Mr Kaddissi) in their duty as lawyers to advise JBS parties. However, for the communications to be privileged on this basis, they must be made for the dominant purpose of the giving or receiving of legal advice. For the reasons given above, I consider there to have been multiple purposes for these communications, such that the dominant purpose test is not satisfied. 388 I therefore conclude that the communications were not made for the dominant purpose of giving or receiving legal advice. Accordingly, the parts of this document marked "Privilege" in the copy provided to the Court are not privileged.

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A15 - PWC.011.006967 389 This document is an email chain dated between 1 and 2 April 2015 between Mr DeBellis (PwC Australia - NLP) and Mr Sinokula (JBS Australia), copied to Mr Russell (ALP), Mr Stewart (NLP) and Ms Fantin (ALP) (all of PwC Australia), regarding the stamp duty payable on the Primo acquisition. The latest email in the chain, from Mr DeBellis to Mr Sinokula (copied to Mr Stewart, Mr Russell and Ms Fantin) attaches a fixed assets register (FAR), which is Document 27. The subject line of the emails is "Primo - Stamp Duty Table". 390 Privilege has been claimed over the whole of Documents 26 and 27 on the basis that the email chain forms part of a "confidential continuum of communications between the client and PwC (including PwC lawyers and non-legal advisors working under the direction of a PwC lawyer or on a legal services engagement) for the dominant purpose of obtaining legal advice", and the FAR is an attachment to an email "which communicated confidential legal advice, or a request for confidential legal advice, between a lawyer and a client, and the attachment was relevant to the seeking or the provision of that legal advice". 391 Mr Alvares gives evidence that following the settlement of the Primo acquisition in late March 2015, JBS Australia needed advice about JBS's stamp duty liability. Mr Alvares recalls asking Mr Sinokula to "arrange that" with PwC and to keep him informed. 392 Beyond referring to Mr Alvares's evidence, PwC Australia does not make any substantive submission about Documents 26 and 27 in the schedule to its outline of opening submissions. 393 The JBS Parties submit that Documents 26 and 27 are communications that reveal instructions or information provided by JBS. 394 In my view, Documents 26 and 27 are not privileged. Although ALPs were copied on the emails, in substance the emails (including the attachment to the latest email) represent advice provided by Mr DeBellis (an NLP) regarding the stamp duty payable on the Primo acquisition. Given that Mr DeBellis was not a lawyer, I would characterise his advice as non-legal advice (albeit concerning stamp duty). In these circumstances, I consider that the documents do not record communications made for the dominant purpose of giving or receiving legal advice. Mr Alvares's evidence, and the JBS Parties' submissions, do not suggest a contrary view.

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A5 - PWC.010.001897 397 This document comprises an email chain dated between 29 April and 5 May 2015. The email chain commences with an email from Mr Kulich (PwC USA) to Ms Garland (JBS USA) (copying various personnel from PwC Brazil, PwC USA and PwC Australia, including Mr Russell (an ALP)), that attached a slide deck. The email chain continues with a further email from Mr Kulich to Ms Garland and others. The email chain then continues with a number of internal PwC emails, with an attached slide deck. The slide deck attached to the latest email in the email chain (i.e. the email from Mr Kulich dated 5 May 2015 at 11.58 am) is Document 29. I infer that the same document was attached to the third latest email. 398 The slide deck that is Document 29 is titled "JBS USA Holdings, Inc. Project Twiggy". Following the title, the words "Subject to legal professional privilege" appear. Also on this page is a sub-heading, "Option 6 - proposed steps". On page 2 of the slide deck, under the heading "Disclaimer", it is stated that the document has been prepared pursuant to an engagement between PwC USA and JBS USA. Also under the "Disclaimer" heading, it is stated that "PwC [USA] is not permitted to render any legal and/or regulatory services. This document is therefore not meant to be a legal opinion nor is it meant to provide any legal advice". At the end of the document, there is a notation that copyright is held by PwC USA. 399 Privilege has been claimed over the whole of Documents 28 and 29 on the basis that they are a "confidential internal PwC communications involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice" and an attachment to an email "which communicated confidential legal advice, or a request for confidential legal advice, between a lawyer and a client, and the attachment was relevant to the seeking or the provision of that legal advice". 400 Mr Russell gives evidence in relation to Documents 28 and 29 at paragraphs 253-255 of his affidavit. His evidence is that the documents involved work performed under Statements of Work No 3 and No 4. He states that that work concerned options that were being considered as to a long-term refinancing in relation to the Primo acquisition in Australia, as part of the work associated with a reconsolidation of the JBS Australia MEC Group. Mr Russell gives evidence that he was advising as to the Australian tax options associated with any recommended structure (including funding options) that might be adopted, and that "Option 6" was an option for refinancing in relation to the Primo acquisition. Mr Russell states that he discussed the concept of Option 6 with Mr Fuller (an NLP) and Mr Denovan (an NLP), caused Mr Denovan to prepare the slide deck, and discussed its content with him prior to its preparation. Mr Alvares gives evidence relating to these documents at paragraph 73 of his affidavit. He states that this email chain reveals various matters that he recalls were under consideration and were the subject of discussions he had with Mr Russell [redacted]. 401 PwC Australia submits that it is reasonable to infer that Document 29 constituted a "working advice" of Mr Russell in the course of developing transaction steps of the kind referred to by him in his affidavit. It submits that the reasonable inference is that the email was for the dominant purpose of obtaining input on the US tax implications of proposed structures from PwC USA, for the purpose of Mr Russell providing legal advice. I take the reference to "the email" to refer to each of the emails in the email chain that is Document 28. 402 The JBS Parties submit that Documents 28 and 29 form part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. 403 In my view, Documents 28 and 29 are not privileged. In relation to the first two emails in the email chain, in substance the emails represent advice provided by Mr Kulich (PwC USA) to Ms Garland (JBS USA) regarding options that were being considered as to a long-term refinancing in relation to the Primo acquisition in Australia. Given that Mr Kulich was not a lawyer, I would characterise his advice as non-legal advice. In relation to the latest three emails in the email chain, the substance of the communications in the emails (and the attached slide deck) is advice regarding options that were being considered as to a long-term refinancing in relation to the Primo acquisition in Australia. Given the nature of the advice (including the slide deck), and notwithstanding Mr Russell's involvement in the slide deck, I would characterise the advice as non-legal advice. 404 As noted above, PwC Australia submits that it is reasonable to infer that Document 29 constituted a "working advice" of Mr Russell in the course of developing transaction steps of the kind referred to by him in his affidavit, and that the emails (i.e. Document 28) were sent for the dominant purpose of obtaining input from PwC USA on the US tax implications of proposed structures for the purpose of enabling Mr Russell to provide legal advice. This submission appears to rely on the authorities regarding third parties, discussed above. The contention seems to be that Mr Kulich and Mr Stout of PwC USA were third party experts providing an input to enable Mr Russell to provide legal advice to his client (JBS). I do not accept these submissions. While I accept Mr Russell's and Mr Alvares's evidence as set out above, it does not follow that the dominant purpose of the communications was to enable Mr Russell to provide legal advice to his client. Based on my review of Documents 28 and 29, I consider there to have been multiple purposes for the communications, including the receiving of advice from Mr Kulich and Mr Stout as to options that were being considered regarding long-term refinancing in relation to the Primo acquisition in Australia, to assist in the development of the most appropriate structure. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 405 As noted above, the JBS Parties submit that Documents 28 and 29 form part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. However, for the communications to be privileged on this basis, it is necessary for the communications to be made for the dominant purpose of giving or receiving legal advice. For the reasons set out above, I consider there to have been multiple purposes for these communications, such that the dominant purpose test is not satisfied. 406 Although Mr Russell gives evidence that he caused Mr Denovan to prepare the slide deck, and discussed its content with him prior to its preparation, this evidence is not specific enough for me to conclude that the document tends to reveal the substance of legal advice given by Mr Russell. 407 I therefore conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, Documents 28 and 29 are not privileged.

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A46 - PWC.010.002014 410 This document is a chain of emails dated between 7 May 2015 and 15 May 2015 between personnel from PwC USA, PwC Brazil and PwC Australia. The first email is from Mr Denovan (PwC Australia - NLP) to personnel from PwC USA, PwC Brazil and PwC Australia regarding two options that were being considered regarding long-term refinancing for the acquisition of Primo. This is the only email in the chain over which privilege is claimed. Mr Russell (an ALP) is copied to this email. Attached to that email were two documents: one was a PowerPoint presentation; the other was a PDF version of the presentation. The attachments do not form part of the Sample Document. 411 Privilege has been claimed over the first email in the chain on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". 412 Mr Russell gives evidence in relation to this document at paragraphs 253-255 of his affidavit. His evidence is this document involved work performed under Statements of Work No 3 and No 4. He states that the document concerns two options (Option 4 and Option 6) that were being considered for refinancing in relation to the Primo acquisition, as part of the work associated with a reconsolidation of the JBS Australia MEC Group. Mr Russell gives evidence that he was required to advise as to the Australian tax implications of those options and that he discussed them with Mr Fuller and Mr Denovan. Mr Russell states that, while to the best of his recollection he was not the genesis of Option 4, he did have input into its development and he caused Mr Denovan to update the presentation to incorporate Option 4 (in addition to Option 6) because he (Mr Russell) was considering it as part of the iterative process of giving his advice. Mr Russell states that Mr Denovan circulated the updated presentation (containing Options 4 and 6) and sought comments and raised questions for the consideration of PwC Brazil (including specifically of Ms Vergueiro). Mr Russell gives evidence that he does not recall specifically asking Mr Denovan to do this, but he (Mr Russell) considered it essential to understand any issues arising in relation to implications under Brazilian taxation rules before giving any final advice as to the Australian taxation implications of any recommended structure (including any refinance option) which might be adopted. 413 PwC Australia submits that this is an instance of Mr Denovan seeking input from PwC Brazil in relation to the Brazilian tax implications of proposed steps as part of assistance provided to Mr Russell. It submits that it is reasonable to infer that Mr Denovan understood (at the time that he sent the email) that Mr Russell considered it essential to understand the Brazilian tax implications before giving any final advice on the Australian tax implications of any recommended structure, and that this was the reason Mr Denovan sent his email. PwC Australia submits that the email from Mr Denovan notes to Mr Kulich and Mr Stout the changes that have been proposed in the presentation as part of a continuum of communications between PwC Australia and PwC USA for the purposes of PwC Australia's legal advice. It contends that the reasonable inference is that the communication was for the dominant purpose of obtaining input on US and Brazilian tax law from PwC USA and PwC Brazil for the purpose of Mr Russell providing his legal advice. 414 The JBS Parties submit that this document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. 415 In my view, the first email in this email chain (being the part over which privilege is claimed), is not privileged. In substance, the email is a request by Mr Denovan (an NLP) for advice from PwC Brazil about the Brazilian implications of two options that were being considered for refinancing in relation to the Primo acquisition. Given that the personnel at PwC Brazil were not lawyers, and given the subject matter of the advice that was being sought, I would characterise their advice (once given) as non-legal advice. 416 As noted above, PwC Australia submits that Mr Denovan was seeking input from PwC Brazil in relation to the Brazilian tax implications of proposed steps, and that Mr Russell considered it essential to understand the Brazilian tax implications before giving any final advice on the Australian tax implications of any recommended structure. This submission appears to rely on the authorities concerning third parties discussed earlier in these reasons. The contention appears to be that the personnel at PwC Brazil were third party experts providing an input to enable Mr Russell to provide legal advice to his client (JBS). I do not accept these submissions. While I accept Mr Russell's evidence as set out above, this does not establish that the dominant purpose of the communication (i.e. the first email in the email chain) was to enable Mr Russell to provide legal advice to his client. Based on my review of that email, I consider there to have been multiple purposes for the communication, including receiving advice from PwC Brazil about the Brazilian implications of two options that were being considered for refinancing in relation to the Primo acquisition, to enable the development of the most appropriate structure. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 417 As noted above, the JBS Parties submit that this document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. However, for the communication to be privileged on this basis, it is necessary for the communication to be made for the dominant purpose of giving or receiving legal advice. For the reasons set out above, I consider there to have been multiple purposes for this communication, such that the dominant purpose test is not satisfied. 418 I therefore conclude that the communication was not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, the first email in the email chain (being the part of this document over which privilege is claimed) is not privileged.

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R8 - PWC.020.106156 419 Document 31 is an email from Mr Ali (PwC Australia - ALP) to Mr Russell (PwC Australia - ALP) attaching (a) a draft memorandum (or discussion paper) relating to [redacted] issues arising from the acquisition of Primo [redacted]. The email subject line states: "Confidential and subject to legal professional privilege". The email from Mr Ali contains a draft message from Mr Russell to Mr Fuller and Mr Denovan with a message from Mr Ali to Mr Russell: "[redacted]". 420 Privilege has been claimed over the whole of Document 31 on the basis that it is "for the dominant purpose of JBS Australia Pty Ltd requesting or being provided with legal advice from PwC (including Glenn Russell and Zameer Ali) in relation to the 'Global Restructure Project - Australian Income Tax and Stamp Duty Legal Advice' SoW dated 15 January 2015, in respect of which Glenn Russell is the relevant ALP partner". 421 Privilege has been claimed over the whole of Document 32 on the basis that it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell and Zameer Ali) in relation to the 'Global Restructure Project - Australian Income Tax and Stamp Duty Legal Advice' SoW dated 15 January 2015, in respect of which Glenn Russell is the relevant ALP partner". 422 Privilege has been claimed over the whole of Document 33 on the basis that it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Global Restructure Project - Australian Income Tax and Stamp Duty Legal Advice' SoW dated 15 January 2015, in respect of which Glenn Russell is the relevant ALP partner". 423 Mr Russell gives evidence in relation to Documents 31, 32 and 33 at paragraphs 256-259 of his affidavit. His evidence is that the documents concern work performed pursuant to Statement of Work No 4 in relation to a [redacted] structure under consideration at that time [redacted]. Mr Russell states that the draft memorandum (Document 32) was prepared by Mr Ali and Mr Stewart at Mr Russell's request following a discussion with him. Mr Russell states that he continued to provide comments on the draft as it was developed, and that the version attached to Mr Ali's email was an updated draft incorporating comments Mr Russell made in an earlier discussion with Mr Ali. The outcomes in the draft were expressed to be based [redacted] relating to [redacted] the JBS Australia Group (which are the calculations at Document 33). It is Mr Russell's evidence that he sent the draft memorandum to Mr Fuller and Mr Denovan so that they were aware of the issues being discussed and also in case they wished to make any comments on the paper. 424 PwC Australia submits that the content of Document 32 (the draft memorandum) is "clearly legal analysis, applying the provisions of Australian income tax legislation". It contends that the reasonable inference is that this communication (comprising the email (Document 31) and its attachments (Documents 32 and 33)) was for the dominant purpose of Mr Russell providing legal advice. 425 The JBS Parties contend that Documents 31, 32 and 33 are communications that reveal advice given or under consideration by PwC Australia. 426 The Amici Curiae submit that Documents 31, 32 and 33 are not privileged. They submit that: the email and its attachments were concerned with the "key taxation matters to be considered; [redacted]; and key actions to be taken" (see the second page of the draft memorandum); while the "key taxation matters" may have depended on, among other things, the application of Australian taxation legislation, the dominant purpose of the provision of this advice was a commercial purpose, and not a privileged purpose; as stated in Statement of Work No 4, the preparation of ACA calculations would "result in the quantification of any tax payable as a result of the deconsolidation". It follows, the Amici Curiae submit, that Documents 31, 32 and 33 do not record communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia. 427 In my view, Documents 31, 32 and 33 are privileged. The communication comprises the email and its attachments. The email is written by Mr Ali, an ALP, to Mr Russell, an ALP, and attaches a draft memorandum (or discussion paper) in relation to [redacted], being a memorandum that would be provided by Mr Russell (an ALP) and Mr Stewart (an NLP) to Mr Sinokula of JBS Australia. In circumstances where the advice was prepared by Mr Ali, an ALP, and was to be given by Mr Russell, an ALP, and concerned the matters described above, I would characterise the advice to be given as legal advice. In light of this, I consider the email and its attachments to be a communication made for the dominant purpose of the giving of legal advice. Further, I consider that the second attachment is to be regarded as a copy document and that it was provided for the dominant purpose of the giving of legal advice. I infer that it was provided by Mr Ali to Mr Russell to enable him to consider and provide his legal advice. Accordingly, it is privileged.

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R11 - PWC.010.002184 433 This document comprises two emails from Mr Russell (PwC Australia - ALP) to Mr Fuller (PwC Australia - NLP) and Mr Denovan (PwC Australia - NLP), copied to other PwC Australia personnel including Mr Ali (PwC Australia - ALP). Both emails contain the subject line "Confidential and subject to legal professional privilege". The second (i.e. later) email attaches a draft memorandum (or discussion paper) and associated ACA calculations (being Documents 32 and 33, discussed above). The first email, dated 3 June 2015, is in similar terms to the draft email from Mr Ali to Mr Russell (Document 31). The second email, dated 4 June 2015, contains some follow up observations from Mr Russell in relation to the Primo acquisition. 434 Privilege has been claimed over the first email in the chain on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Global Restructure Project - Australian Income Tax and Stamp Duty Legal Advice' SoW dated 15 January 2015, in respect of which Glenn Russell is the relevant ALP partner". Privilege has also been claimed on the basis it is "a copy of a communication created by PwC for the dominant purpose set out above (Propend)". 435 Privilege has been claimed over the second email in the chain on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Global Restructure Project - Australian Income Tax and Stamp Duty Legal Advice' SoW dated 15 January 2015, in respect of which Glenn Russell is the relevant ALP partner". 436 Mr Russell gives evidence about this document at paragraphs 256-259 of his affidavit. His evidence is that the emails concern work performed pursuant to Statement of Work No 4 in relation to a tax consolidation structure under consideration at that time, which involved a number of steps [redacted]. He states that he forwarded the draft discussion paper and calculations to Mr Fuller and Mr Denovan so that they were aware of the issues being discussed, and also in case they wished to make any comments on the paper. 437 PwC Australia submits that the reasonable inference is that the communication was for the dominant purpose of Mr Russell providing his legal advice to JBS. 438 The JBS Parties contend that the document contains communications that reveal advice given or under consideration by PwC Australia. 439 The Amici Curiae submit that this document is not privileged, for the same reasons as set out in relation to Documents 31, 32 and 33. 440 In my view, this document is privileged. It is an email written by Mr Russell (an ALP) to NLPs who were relevantly assisting him, and attaches a draft memorandum (or discussion paper) in relation to [redacted] issues arising from the acquisition of Primo [redacted], being a memorandum that would be provided by Mr Russell (an ALP) and Mr Stewart (an NLP) to Mr Sinokula of JBS Australia. The emails contain Mr Russell's observations about the issues of Australian taxation law discussed in the draft memorandum (Document 32). I consider the advice to be properly characterised as legal advice in circumstances where it was given or to be given by Mr Russell, an ALP, and concerned issues of Australian taxation law. In these circumstances, I consider that the communications were made for the dominant purpose of the giving of legal advice. Further, I consider the emails to be privileged on the basis that disclosure of them would tend to reveal the contents or substance of a privileged communication, namely legal advice given or to be given by Mr Russell.

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R12 - PWC.009.000710 441 This document is an email from Mr Russell to Mr Sinokula, Mr Alvares (both JBS Australia) and Ms Garland (JBS USA) dated 4 June 2015 attaching a draft memorandum (or discussion paper) dated 4 June 2015 (which is Document 36) and associated ACA calculations (Document 37). The subject line of the email states: "Confidential and subject to legal professional privilege". 442 Privilege has been claimed over the whole of Documents 35, 36 and 37 on the basis they are "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Global Restructure Project - Australian Income Tax and Stamp Duty Legal Advice' SoW dated 15 January 2015, in respect of which Glenn Russell is the relevant ALP partner". 443 Mr Russell gives evidence in relation to Documents 35, 36 and 37 at paragraphs 256-259 of his affidavit. His evidence is that the documents concern work performed pursuant to Statement of Work No 4 [redacted], which involved a number of steps [redacted]. He states that in sending Mr Sinokula, Mr Alvares and Ms Garland the email, draft memorandum and ACA calculations, he was seeking to provide them with advice as to the actions that may be required to be undertaken [redacted] so that they could plan accordingly. 444 PwC Australia submits that the content of Document 36 is "clearly legal advice", that it refers to work being undertaken in accordance with Statement of Work No 4, and that it was prepared under Mr Russell's direction. It contends that the reasonable inference is that the dominant purpose of Mr Russell's email (Document 35) including its attachments (Documents 36 and 37) was the provision of legal advice to JBS by Mr Russell. 445 The Amici Curiae submit that Documents 35, 36 and 37 are not privileged, for the same reasons as set out in relation to documents 31, 32 and 33. 446 In my view, Documents 35, 36 and 37 are privileged. The communication comprises the email and its attachments. One of the attachments is a draft memorandum from Mr Russell (an ALP) and Mr Stewart (an NLP) to Mr Sinokula of JBS Australia in relation to [redacted] the acquisition of Primo [redacted]. These are matters of Australian taxation law. In circumstances where the advice was being given by Mr Russell, an ALP, and concerned matters of Australian taxation law, I would characterise the advice as legal advice. The fact that Mr Stewart was involved in the preparation of the memorandum does not affect this analysis. I am satisfied that Mr Russell substantively reviewed the memorandum. Further, the email contains advice from Mr Russell to his client about the matters discussed in the draft memorandum. For the same reasons, this advice is to be characterised as legal advice. In these circumstances, I consider Documents 35, 36 and 37 to be a communication made for the dominant purpose of giving legal advice, and therefore to be privileged. Further, I consider the second attachment to be a copy document and that it was provided for the dominant purpose of the giving of legal advice. It forms the basis of the advice in the draft memorandum. It is therefore privileged.

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R15 - PWC.011.007776 452 This document is a memorandum dated 12 June 2015 from Mr Russell (PwC Australia - ALP) to Mr Sinokula (JBS Australia) with the subject "[redacted]". The memorandum sets out the key steps that need to be considered or actioned by various persons at JBS Australia and PwC Australia [redacted]. [Redacted] (being Document 37). [Redacted] (being Document 41). 453 Privilege has been claimed over the whole of the document on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Global Restructure Project - Australian Income Tax and Stamp Duty Legal Advice' SoW dated 15 January 2015, in respect of which Glenn Russell is the relevant ALP partner". 454 Mr Russell gives evidence about this document at paragraphs 260-264 of his affidavit. His evidence is that this document concerns consideration that was being given at the time to the [redacted]. He states that this work was done pursuant to Statement of Work No 4. Mr Russell gives evidence that he had discussions with Mr Sinokula and Mr Alvares (JBS Australia) regarding the subject matter of the draft memorandum (Document 32), including as to the immediate key [redacted] steps that needed to be considered or actioned, [redacted]. Mr Russell states that Document 39 is that summary; it is a memorandum setting out the immediate key [redacted] steps that needed to be considered or actioned [redacted]. 455 PwC Australia submits that while the memorandum is expressed in summary form, "it is evident that it is based on Mr Russell's knowledge of the relevant tax law and what he is conveying is the steps that his client should prudently take [redacted] … having regard to that law and the client's particular circumstances". It submits that the reasonable inference is that the dominant purpose of this document was for Mr Russell to provide legal advice to JBS. 456 The Amici Curiae submit that this document is not privileged. They submit that: the memorandum is concerned with commercial, and not legal, matters; it falls within the scope of the income tax advice to be provided pursuant to Statement of Work No 4, which included "[Redacted] advice associated with the issues associated with the broader Global Restructure", [redacted]. It follows, the Amici Curiae submit, that Document 39 does not record communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers from PwC Australia. 457 In my view, this document is privileged. The memorandum is from Mr Russell, an ALP, to his client, JBS Australia. It sets out Mr Russell's advice about the [redacted]. In circumstances where Mr Russell was a lawyer, and the advice concerned matters of Australian taxation law, I would characterise the advice as legal advice. In these circumstances, I consider the document to constitute a communication made for the dominant purpose of giving legal advice, and therefore to be privileged.

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R16 - PWC.011.007783 458 This document is an email chain dated between 5 and 14 June 2015 concerning an "action plan" [redacted]. There are three emails in the chain. Each of the emails has the subject line: "Subject to legal professional privilege - action plan". The three emails are as follows: (a) The first email in the chain is dated 5 June 2015 and is from Mr Denovan (PwC Australia - NLP) to Ms Garland (JBS USA) and Mr Sinokula, Mr Alvares and Mr Marinho (JBS Australia) attaching an action plan. (b) The second email in the chain is dated 5 June 2015 and is from Mr Sinokula (JBS Australia) to Ms Dale (JBS Australia) and Mr White (JBS USA) (copied to Mr Denovan, Mr Russell (PwC Australia - ALP) and others at PwC Australia, and to personnel at JBS Australia, JBS USA and JBS SA) attaching the action plan, noting that PwC Australia and PwC USA would assist with the preparation of all documentation and steps, [redacted]. (c) The third email in the chain is dated 14 June 2015 and is from Mr Russell to Mr Sinokula, Ms Dale (JBS Australia) and Ms Garland and Mr White (JBS USA), copied to other personnel at JBS Australia, PwC USA and PwC Australia. In the email, Mr Russell notes that the action plan "[redacted]" and states that Mr Wogan and Mr Russell will call Ms Dale to determine whether she requires any specific legal support [redacted]. The email attaches two action plans: (i) a slide deck [redacted] (Document 41); the slide deck is marked "Subject to legal professional privilege" [redacted]; and (ii) a draft slide deck [redacted] (Document 42); the slide deck is marked "Subject to legal professional privilege" [redacted]. 459 Privilege has been claimed over the first email in this document (from Mr Denovan) on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Global Restructure Project - Australian Income Tax and Stamp Duty Legal Advice' SoW dated 15 January 2015, in respect of which Glenn Russell is the relevant ALP partner". Privilege has also been claimed on the basis it is "a copy of a communication created by PwC for the dominant purpose set out above (Propend)". 460 Privilege has been claimed over the second email in this document (from Mr Sinokula) on the basis it is "a copy of a communication created by PwC for the dominant purpose set out above (Propend)." Privilege has also been claimed on the additional basis that it is "for the dominant purpose of JBS requesting or being provided with legal advice from JBS in-house lawyers (including Jacinta Dale, Nicholas White)". 461 Privilege has been claimed over the third email in this document (from Mr Russell) on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Global Restructure Project - Australian Income Tax and Stamp Duty Legal Advice' SoW dated 15 January 2015, in respect of which Glenn Russell is the relevant ALP partner". 462 Privilege has been claimed over the whole of Documents 41 and 42 on the basis they are "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Global Restructure Project - Australian Income Tax and Stamp Duty Legal Advice' SoW dated 15 January 2015, in respect of which Glenn Russell is the relevant ALP partner". 463 Mr Russell gives evidence in relation to Documents 40, 41 and 42 at paragraphs 260-264 of his affidavit. His evidence is that following the sending of the memorandum dated 12 June 2015 (Document 39), he participated in further discussions with JBS Australia personnel as to [redacted] steps, and was asked to prepare a more detailed version of the action plan. He states that the action plans attached to his email (the third in the chain) (being Documents 41 and 42) were prepared pursuant to that request. 464 PwC Australia submits that the matters addressed in Document 41 are "self-evidently matters of Australian law". It submits that the list of information at the end of the document that is required to complete a particular ASIC form was information which was ultimately obtained from JBS for the purpose of Mr Wogan's team providing assistance with the preparation of the relevant filings. PwC Australia submits that the reasonable inference is that the dominant purpose of the communication (comprising the covering email (Document 40) and its two attachments (Documents 41 and 42)) was the provision of legal advice to JBS by Mr Russell. 465 The Commissioner submits that versions of Documents 41 and 42 were circulated between NLPs on multiple occasions prior to the third email in the chain in Document 40 being sent by Mr Russell, including the version of Document 41 sent by Mr Denovan to JBS Australia on 5 June 2015 (being the first email in the chain in Document 40). 466 The Amici Curiae submit that Documents 40, 41 and 42 are not privileged. They submit that: these documents are concerned with commercial matters, namely the action plan [redacted]; it appears from the evidence that the action plan was initially prepared by NLPs, and there is no evidence as to who prepared the versions which are Documents 41 and 42; the final email in the chain notes that Mr Wogan and Mr Russell will contact Ms Dale [redacted]. The Amici Curiae submit that there is not a sufficient basis to conclude that the email was a communication made for the dominant purpose of the giving or obtaining of legal advice. 467 In my view, Documents 40, 41 and 42 are privileged. I will focus on the latest email in the email chain, namely the third email (sent by Mr Russell, an ALP, to his client, JBS). The communication comprises the email (including the earlier emails) and the attachments. The first attachment (Document 41) is a slide deck that sets out advice [redacted]. The advice concerns matters of Australian taxation law and corporate law. In circumstances where the advice was being given by Mr Russell, an ALP, and concerned matters of Australian taxation and corporate law, I would characterise the advice as legal advice. The second attachment (Document 42) is a draft slide deck that sets out advice [redacted]. The advice concerns matters of Australian taxation law and corporate law. In circumstances where the advice was being given by Mr Russell, an ALP, and concerned matters of Australian taxation and corporate law, I would characterise the advice as legal advice. In these circumstances, I consider that the communication was made for the dominant purpose of giving or receiving legal advice, and therefore to be privileged. I note for completeness that the fact that the two slide decks appear to have been prepared by or with the assistance of an NLP, Mr Denovan, does not affect this analysis. I would infer that Mr Russell directed the preparation of the documents and that he substantively reviewed them. Further, in relation to the earlier emails in the email chain, I consider these to be copy documents and that they were provided for the dominant purpose of the giving or receiving of legal advice. They are therefore privileged.

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R20 - PWC.011.008086 472 This document is an email chain in the period 15 to 16 July 2015 containing four emails between Mr Fuller (PwC Australia - NLP), Mr Denovan (PwC Australia - NLP), Mr DeBellis (PwC Australia - NLP) and Mr Russell (PwC Australia - ALP), copied to Hannah Cummings (PwC Australia), in relation to the taxation consequences of certain options under consideration [redacted]. 473 Privilege has been claimed over the first email in the chain (from Mr Fuller) on the basis it is "for the dominant purpose of JBS S.A. (including its related bodies corporate) requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the SoW dated 25 June 2015 and the email to Edison Alvares dated 25 July 2015, expanding the scope of the SoW dated 25 June 2015 (referred to in paragraph 55 of the Emery Affidavit as the 25 June 2015 SoWs) in respect of which Glenn Russell is the relevant ALP partner". Privilege has also been claimed on the basis it is "a copy of a communication created by PwC for the dominant purpose set out above (Propend)". 474 Privilege has been claimed over the second email in the chain (from Mr Denovan) on the basis it is "for the dominant purpose of JBS S.A. (including its related bodies corporate) requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the SoW dated 25 June 2015 (referred to in paragraph 55 of the Emery Affidavit as the 25 June 2015 SoWs) and the email to Edison Alvares dated 25 July 2015, expanding the scope of the 25 June 2015 SoWs, in respect of which Glenn Russell is the relevant ALP partner". Privilege has also been claimed on the basis it is "a copy of a communication created by PwC for the dominant purpose set out above (Propend)". 475 Privilege has been claimed over the third email in the chain (from Mr Fuller) on the basis it is "for the dominant purpose of JBS S.A. (including its related bodies corporate) requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the SoW dated 25 June 2015 and the email to Edison Alvares dated 25 July 2015, expanding the scope of the SoW dated 25 June 2015 (referred to in paragraph 55 of the Emery Affidavit as the 25 June 2015 SoWs) in respect of which Glenn Russell is the relevant ALP partner". Privilege has also been claimed on the basis it is "a copy of a communication created by PwC for the dominant purpose set out above (Propend)". 476 Privilege has been claimed over the fourth email in the chain (from Mr Russell) on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the SoW dated 25 June 2015 and the email to Edison Alvares dated 25 July 2015, expanding the scope of the SoW dated 25 June 2015 (referred to in paragraph 55 of the Emery Affidavit as the 25 June 2015 SoWs) in respect of which Glenn Russell is the relevant ALP partner". 477 Mr Russell gives evidence about this document at paragraph 265 of his affidavit. His evidence is that this email chain concerns issues relating to both Project Twiggy Phase 2 and the GRAP. He gives evidence that he had been considering the potential implications [redacted] and had been discussing this with Mr Fuller and Mr Denovan. Mr Russell states that Mr Fuller raised a specific issue [redacted], which Mr Russell considered and liaised with Mr Stewart about. Mr Russell gives evidence [redacted], and that his email (the fourth in the chain) sets out his then thoughts on that issue. 478 PwC Australia submits that Mr Russell's email sets out his analysis of the application of the relevant statutory provisions to the [redacted] identified by Mr Fuller and Mr Denovan. It submits that it is to be inferred that this email communication is part of the iterative process in relation to the development of the GRAP on which Mr Russell was advising, and that the reasonable inference is that this document was for the dominant purpose of Mr Russell providing his legal advice. 479 The Amici Curiae submit that this document is not privileged. They submit that: these emails are concerned with determining the [redacted] steps [redacted]; while the PwC Australia personnel refer in the email chain to tax legislation, the dominant purpose of the communications is not the giving or obtaining of legal advice, but rather to inform the making of commercial decisions as to the most tax efficient way [redacted]; that advice was being given by NLPs at PwC Australia (in this case, Mr Fuller and Mr Denovan) and ALPs acting other than in their capacity as lawyers (in this case, Mr Russell). It follows, the Amici Curiae submit, that this document does not record communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia. 480 In my view, this document is privileged. Focussing on the latest email in the chain, this is an email from Mr Russell, an ALP, to NLPs at PwC Australia [redacted]. In the email, Mr Russell sets out advice as to matters of Australian taxation law. In circumstances where Mr Russell was an Australian lawyer, and the advice concerns matters of Australian taxation law, I would characterise the advice as legal advice. In these circumstances, I consider the dominant purpose of the communication to be the giving of legal advice. Further, I consider the document to be privileged on the basis that it tends to reveal the contents or the substance of a privileged communication, namely legal advice given or to be given by Mr Russell [redacted]. I would infer that Mr Russell had given or was to give advice to the client about these matters. Further, in relation to the earlier emails in the email chain, I consider these to be copy documents and that they were provided for the dominant purpose of the giving of legal advice. They are therefore privileged.

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A33 - PWC.007.002145 481 This document is a chain of emails dated between 29 July and 5 August 2015. The first is an email from Ms Manzano (JBS SA) to personnel at JBS SA, JBS USA, JBS Australia, PwC USA and Mr Fuller (PwC Australia - NLP) dated 29 July 2015 regarding a call to discuss next steps in the GRAP. The second is an email from Mr Fuller to Ms Manzano and Ms Garland (JBS USA) (copied to Mr Kulich (PwC USA)) dated 5 August 2015 requesting confirmation in relation to several points, including regarding advice that had been provided from Ernst & Young. The third is an email from Mr Fuller to Ms Garland (JBS USA). There are no ALPs copied to the emails. 482 Privilege has been claimed over the whole of the document on the basis that it forms part of a "confidential continuum of communications between the client and PwC (including PwC lawyers and non-legal advisors working under the direction of a PwC lawyer or on a legal services engagement) for the dominant purpose of obtaining legal advice". 483 Mr Russell gives evidence that he was subsequently forwarded the email chain by Mr Fuller on 6 August 2015. Mr Russell states that he discussed the matters raised by Mr Fuller with him and asked him to follow them up, and that those matters related to issues on which he was to advise under Statements of Work No 4 and No 5. Mr Alvares gives evidence that JBS Australia needed advice from PwC Australia about the "taxation consequences" of the transaction. Mr Alvares states that he instructed Mr Russell to ask Ms Garland or Ms Manzano for information about this issue. Ms Manzano gives evidence that this document is an email she received from Mr Fuller on an issue concerning the payment of a dividend as described in her affidavit. 484 PwC Australia submits that Mr Fuller was "effectively acting as Mr Russell's agent" in sending the second email in the chain. It contends that the reasonable inference is that this document was for the dominant purpose of Mr Russell providing his legal advice. 485 The JBS Parties submit that this document is part of a "continuum of communications" between JBS lawyers and others (including PwC employees) that are directly related to the performance by the in-house lawyers (including Mr Kaddissi) of their duty as lawyers to advise JBS parties. 486 In my view, this document is not privileged. It is an exchange of emails between non-lawyers. No ALP was copied on the emails. In substance, the second email in the chain (which is the only substantive email) constitutes a request (from Mr Fuller to Ms Manzano and Ms Garland) for confirmation of various matters concerning the GRAP. There is no suggestion in the email that the information is sought to enable Mr Russell, as distinct from Mr Fuller, to provide advice. 487 As noted above, PwC Australia submits that Mr Fuller was "effectively acting as Mr Russell's agent" in sending the second email in the chain and that the document was for the dominant purpose of Mr Russell providing his legal advice. The contention seems to be that Mr Fuller was obtaining information from JBS upon which Mr Russell was to provide legal advice. I am not persuaded by these submissions. While I accept that Mr Russell was subsequently forwarded the email chain by Mr Fuller on 6 August 2015 and that Mr Russell discussed the matters raised by Mr Fuller with him and asked him to follow them up, it does not follow that the dominant purpose of the communication was to enable Mr Russell to provide legal advice to his client. Based on my review of the second email in the chain, I consider there to have been multiple purposes for the making of the communication, including to enable Mr Fuller to give (non-legal) advice to JBS in connection with the GRAP. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 488 Insofar as the JBS Parties submit that this document is part of a "continuum of communications" between JBS lawyers and others (including PwC employees) that are directly related to the performance by the in-house lawyers (including Mr Kaddissi) of their duty as lawyers to advise JBS parties, I do not accept that submission. For this submission to be made out it would be necessary to establish that the dominant purpose of the communications was to enable the in-house lawyers to provide legal advice. However, for the reasons set out above, the dominant purpose test is not satisfied. 489 Having regard to these matters, I conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, this document is not privileged.

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R21 - PWC.009.000987 490 This document is an email dated 9 August 2015 from Mr Russell (PwC Australia - ALP) to Mr DeBellis (PwC Australia - NLP), Mr Fuller (PwC Australia - NLP) and Mr Denovan (PwC Australia - NLP), copied to other PwC Australia personnel including Mr Ali (ALP), [redacted]. The email subject line includes "subject to legal professional privilege". Attached to the email is a slide deck [redacted]. The attachment is Document 46. 491 Privilege has been claimed over the whole of Documents 45 and 46 on the basis they are "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Legal services Project Twiggy Phase 2' SoW dated 31 August 2015, in respect of which Glenn Russell is the relevant ALP partner". 492 Mr Russell gives evidence in relation to Documents 45 and 46 at paragraphs 269-271 of his affidavit. His evidence is that Document 45 concerns his then comments concerning Australian taxation issues [redacted]. He states that he sought input from Mr DeBellis [redacted]. He states that Document 46 contained additional steps he considered necessary to be incorporated. 493 PwC Australia submits that Mr Russell has explained the importance of [redacted], and that Mr DeBellis was providing assistance in that regard. PwC Australia submits that the reasonable inference is that the communication (comprising the email (Document 45) and its attachment (Document 46)) was for the dominant purpose of Mr Russell providing legal advice to JBS. 494 The Amici Curiae submit that Documents 45 and 46 are not privileged. They submit that: the documents are concerned with the [redacted] and the GRAP; the dominant purpose for the creation of these documents was not to provide or obtain legal advice, but rather to inform the making of commercial decisions as to the most tax efficient way to [redacted]; while Mr Russell may have provided input to the step plans, the dominant purpose for the provision of commercial advice does not become a privileged purpose simply because it is contributed to by a lawyer. It follows, the Amici Curiae submit, that documents 45 and 46 do not record communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia. 495 In my view, Documents 45 and 46 are privileged. The communication comprises the email and its attachment. The email is from Mr Russell, an ALP, to NLPs at PwC Australia regarding the [redacted]. The email is to be considered together with the attached slide deck. Both the email and the attachment contain Mr Russell's advice on matters of Australian taxation law. In circumstances where Mr Russell was an Australian lawyer, and the advice concerns matters of Australian taxation law, I would characterise the advice as legal advice. In these circumstances, I consider that the communication was made for the dominant purpose of the giving of legal advice. Further, I consider the document to be privileged on the basis that it tends to reveal the contents or the substance of a privileged communication, namely legal advice given or to be given by Mr Russell regarding [redacted]. I would infer that Mr Russell had given or was to give advice to the client about these matters.

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R50 - PWC.212.000001 498 This document is Statement of Work No 6, dated 31 August 2015. As set out above, this Statement of Work provided for three categories of services to be provided in relation to Project Twiggy Phase 2: income tax; corporate legal services; and accounting. 499 Privilege has been claimed over parts of the document, namely the descriptions of the work to be performed under the headings "1. Income Tax", "2. Corporate Legal Services" and "3. Accounting". The relevant parts are shaded in the copy of the Sample Documents provided to the Court. Privilege is claimed on the basis that "those parts record communications for the dominant purpose of JBS requesting legal advice from PwC (including Glenn Russell). This Statement of Work names Glenn Russell as the relevant ALP partner". 500 Mr Russell gives evidence in relation to this document at paragraphs 272-273 of his affidavit. His evidence is that the parts of this Statement of Work over which privilege is claimed indicate the legal services performed under the Statement of Work and reflect instructions from Mr Alvares as to the work to be performed under Project Twiggy Phase 2. 501 PwC Australia submits that the parts of this document over which privilege is claimed disclose instructions received by Mr Russell and the results of his legal analysis to date. It contends that the reasonable inference is that the relevant parts of this Statement of Work disclose the effect of communications between Mr Russell and JBS for the dominant purpose of JBS obtaining legal advice. 502 The JBS Parties submit that the document comprises communications that reveal advice given or under consideration by PwC Australia. 503 The Amici Curiae submit that the document as a whole is not privileged. They submit that the document records a request for advice, the dominant purpose of which was commercial (namely, advice in relation to the income tax and accounting implications of Project Twiggy Phase 2), and not a privileged purpose. However, the Amici Curiae submit that parts of the document are privileged. The parts of the document identified by the Amici Curiae are less extensive than the parts over which privilege is claimed. The parts of the document identified by the Amici Curiae are: (a) the third dot point under the section headed "Income Tax"; and (b) the entire section headed "2. Corporate Legal Services". 504 The Amici Curiae submit that these sections of the document are privileged on the basis that disclosure of them would reveal the substance of legal advice sought. 505 In my view, parts of this document are privileged, but these parts are less extensive than the parts over which privilege is claimed. The parts that I consider to be privileged are: (a) The description of the work to be performed under the heading "1. Income Tax"; and (b) The description of the work to be performed under the heading "2. Corporate Legal Services". 506 I consider these parts to be privileged on the basis that disclosure of these parts would tend to reveal the contents or the substance of a privileged communication, namely, a request for legal advice from Mr Russell regarding Project Twiggy Phase 2. In circumstances where Mr Russell was a lawyer, and these parts of the document concern matters of taxation law and corporate law, I consider the advice referred to in these parts to be legal advice. 507 However, I do not consider the description of the work to be performed under the heading "3. Accounting" to be privileged. That part reads: "Accounting advisory assistance on the proposed transaction steps to undertake Project Twiggy Phase 2". This does not refer to legal advice or legal services. Accordingly, I do not consider that part to be privileged.

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A32 - PWC.002.000995 508 This document is a chain of emails. The first is an email from Ms Manzano (JBS SA) to personnel at JBS USA, JBS Australia and JBS SA dated 29 May 2015 regarding the repayment of an outstanding loan owing from JBS SA to US Holding. The second is an email from Mr Sinokula (JBS Australia) dated 1 June 2015, forwarding the first email to Mr Russell (PwC Australia - ALP) and requesting his views on the proposed transaction. The third is an email from Mr Fuller (PwC Australia - NLP) to Mr Sinokula (copied to Mr Russell and Mr Denovan (PwC Australia - NLP)) dated 3 June 2015 providing his views on the issues raised by Mr Sinokula. The fourth is an email from Mr Sinokula forwarding Mr Fuller's email to Ms Garland (JBS USA) and Ms Manzano. The fifth is an email from Mr Sinokula to Mr Fuller asking a further question in relation to functional currency of Burcher. The sixth and seventh are emails from Mr Fuller providing his further views to Mr Sinokula. The eighth is an email from Mr Kulich. The ninth is an email from Mr Sinokula. The tenth is an email from Mr Denovan dated 14 September 2015 forwarding the email chain to personnel at PwC Australia. Privilege is not claimed over the eleventh (latest) email in the chain. Several of the emails have the words "Confidential and subject to legal professional privilege" in italics at the beginning of the email. Mr Russell did not author any of the emails in the email chain. 509 Privilege has been claimed over parts of this document, namely the parts marked with the word "Privilege" in the copy of the Sample Documents provided to the Court. In effect, privilege is claimed over all of the emails in the chain other than the latest email. Privilege is claimed on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". 510 Mr Russell gives evidence that he discussed his views on the issues arising from Mr Sinokula's request for advice (the second email in the chain) with Mr Fuller and asked Mr Fuller to respond. Mr Russell states that the views in Mr Fuller's email (the third email in the chain) reflected Mr Russell's views. It is Mr Russell's evidence that the analysis in the email chain was relevant to the Australian tax advice he was providing under Statement of Work No 4. Mr Russell states that the topics discussed in this document were dealt with in section 3.1 of the final advice he gave in relation to the GRAP (Document 116). Mr Alvares gives evidence that JBS Australia needed advice from PwC Australia about the "taxation consequences" of a dividend being received by Burcher and the manner in which funds would flow through Burcher ultimately for use by JBS SA. Ms Manzano gives evidence that she discussed the issue of the repayment of the loan with Mr Sinokula and Ms Garland, and sent the first email to personnel at JBS so she could assist in preparing advice to the JBS SA Board. Ms Manzano states that the balance of the email chain reflects the advice received by Mr Sinokula from PwC Australia and conveyed to her. 511 PwC Australia submits that Mr Fuller was "effectively acting as Mr Russell's agent" in sending the third email in the chain. It contends that the subsequent emails in the chain were part of the ongoing continuum of necessary correspondence between ALPs and NLPs at PwC Australia. It submits that the reasonable inference is that this document was for the dominant purpose of JBS obtaining legal advice from Mr Russell. 512 The JBS Parties submit that this document is a "continuum of communications" between JBS lawyers and others (including PwC employees) that are directly related to the performance by the in-house lawyers (including Mr Kaddissi) of their duty as lawyers to advise JBS parties. 513 In my view, the parts of this document over which privilege is claimed are not privileged. In substance, the emails represent advice provided by Mr Fuller (an NLP) regarding the taxation treatment of a dividend being received by Burcher and related issues concerning the flow of funds. Given that Mr Fuller was not a lawyer, I would characterise his advice as non-legal advice (albeit concerning tax issues). 514 As noted above, PwC Australia submits that Mr Fuller was "effectively acting as Mr Russell's agent" in sending the third email in the chain, that the subsequent emails in the chain were part of the ongoing continuum of necessary correspondence between ALPs and NLPs at PwC Australia, and that this document was for the dominant purpose of JBS obtaining legal advice from Mr Russell. The contention seems to be that Mr Fuller provided advice on Mr Russell's behalf, such that it was in substance Mr Russell's advice. I do not accept these submissions. There is no indication in the emails from Mr Fuller that they represent Mr Russell's advice. To the extent that Mr Russell gives evidence to this effect, I do not accept that evidence, given that there is no indication in the emails to this effect and the lack of specificity of Mr Russell's evidence on this point. Further, I do not accept that the dominant purpose of the communications in the emails was to enable Mr Russell to provide legal advice to his client. Based on my review of the document, I consider there to have been multiple purposes for the communications, including the giving of advice by Mr Fuller regarding the taxation treatment of a dividend being received by Burcher and related issues concerning the flow of funds, to assist in the development of the most appropriate structure. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 515 Insofar as the JBS Parties submit that this document is a "continuum of communications" between JBS lawyers and others (including PwC employees) that are directly related to the performance by the in-house lawyers (including Mr Kaddissi) of their duty as lawyers to advise JBS parties, I do not accept that submission. For this submission to be made out it would be necessary to establish that the dominant purpose of the communications was to enable the in-house lawyers to provide legal advice. However, for the reasons set out above, the dominant purpose test is not satisfied. 516 I therefore conclude that the communications were not made for the dominant purpose of giving or receiving legal advice. Accordingly, the parts of this document over which privilege is claimed are not privileged.

[95]

R23 - PWC.011.009182 517 This document is a memorandum dated 21 September 2015 from Mr Russell (PwC Australia - ALP) and Mr Stewart (PwC Australia - NLP) to Mr Sinokula (JBS Australia) with the subject "[Redacted]" [redacted]. 518 Privilege has been claimed over the whole of the document on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Legal services Project Twiggy Phase 2' SoW dated 31 August 2015, in respect of which Glenn Russell is the relevant ALP partner". 519 Mr Russell gives evidence that this memorandum was prepared pursuant to Statement of Work No 6 and that it records a preliminary summary of his views in relation to Australian tax [redacted] issues [redacted]. Mr Russell states that it was prepared by him with the assistance of Mr Stewart. The matters the subject of this memorandum were addressed in Mr Russell's final advice on Project Twiggy Phase 2 (Document 105) at section 5.1.1 on pages 28 and 29. 520 PwC Australia submits that the memorandum sets out advice on the likely tax implications of particular facts, and identifies two available options [redacted]. It contends that this communication is legal advice; it involves the application of legislative provisions to the particular circumstances of the client. It submits that the fact the memorandum indicates it is from both Mr Russell and Mr Stewart does not mean it is not for the dominant purpose of providing legal advice, and that the reasonable inference is that it was for the dominant purpose of Mr Russell providing legal advice to JBS. 521 The Amici Curiae submit that this document is not privileged. They submit that: while [redacted] may have depended on, among other things, the application of Australian taxation legislation, the dominant purpose of the provision of this advice was not a privileged purpose. They submit that the advice was provided for multiple purposes, including the giving of advice about desirable structuring and to inform the preparation and implementation of the Project Twiggy Phase 2 step plan by ensuring the most tax efficient course was adopted. On that basis, they submit that it cannot be said that that the most influential, or prevailing, purpose for the provision of the advice was a privileged purpose. 522 In my view, this document is privileged. The document is a memorandum from Mr Russell (an ALP) and Mr Stewart (an NLP) to Mr Sinokula of JBS Australia in relation to Australian tax [redacted] issues [redacted]. These are matters of Australian taxation law. In circumstances where the advice was being given by Mr Russell, an ALP, and concerns matters of Australian taxation law, I would characterise the advice as legal advice. The fact that Mr Stewart was involved in the preparation of the memorandum does not affect this analysis. I am satisfied that Mr Russell substantively reviewed the memorandum. In these circumstances, I consider this document to comprise a communication made for the dominant purpose of giving legal advice, and therefore to be privileged.

[96]

R24 - PWC.003.001713 523 This document is an email dated 23 September 2015 from Ms Newton (PwC Australia - ALP) to Ms Dale (JBS Australia) (copying Mr Russell, Mr Stewart, Mr Wogan and Ms Syme (all PwC Australia)) attaching documents relating to the [redacted]. It attached a number of documents, including Document 51 (a draft company constitution to be adopted by JBS Australian Holdings Pty Ltd) and document 52 (a draft ASIC Form 202, being an application for registration of a body corporate as an Australian company, partially populated for JBS Australian Holdings Pty Ltd). 524 Privilege has been claimed over the whole of Document 50 on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell and Stephanie Newton) in relation to the 'Legal services Project Twiggy Phase 2' SoW dated 31 August 2015, in respect of which Glenn Russell is the relevant ALP partner". 525 Privilege has been claimed over the whole of Document 51 on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Legal services Project Twiggy Phase 2' SoW dated 31 August 2015, in respect of which Glenn Russell is the relevant ALP partner". 526 Privilege has been claimed over the whole of document 52 on the basis that it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Legal services Project Twiggy Phase 2' SoW dated 31 August 2015, in respect of which Glenn Russell is the relevant ALP partner". 527 PwC Australia submits that this work was performed pursuant to Statement of Work No 6, and in particular, the third bullet point under the heading "Corporate Legal Services". PwC submits that the reasonable inference is that the dominant purpose of the communication was the provision of legal services to JBS in respect of the drafting of the relevant documents. 528 In my view, Documents 50, 51 and 52 are privileged. The communication comprises the email and its attachments. The advice being given relates to the necessary Australian documentation in relation to the [redacted], as contemplated in the Corporate Legal Services section of Statement of Work No 6 ([redacted]). That advice is being given by ALPs at PwC Australia (in this case, Ms Newton). It follows that Documents 50, 51 and 52 record a communication made for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia.

[99]

R27 - PWC.003.001764 533 This document is an exchange of emails dated between 23 and 24 September 2015 that took place further to the email that is Document 50. The first email in the chain in Document 53 is the same as Document 50. The subsequent emails in the chain are between Ms Dale (JBS Australia), Ms Newton (PwC Australia - ALP), Mr Stewart (PwC Australia - NLP) and Mr Wogan (PwC Australia - ALP) (copied to Mr Russell (PwC Australia - ALP)) and concern the preparation and finalisation of the corporate legal documentation [redacted]. 534 Privilege has been claimed over the first email in the chain (from Ms Newton) on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell and Stephanie Newton) in relation to the 'Legal services Project Twiggy Phase 2' SoW dated 31 August 2015, in respect of which Glenn Russell is the relevant ALP partner". Privilege has also been claimed on the basis it is "a copy of a communication created by PwC for the dominant purpose set out above (Propend)". 535 Privilege has been claimed over the second email in the chain (from Ms Dale) on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell, Benn Wogan and Stephanie Newton) in relation to the 'Legal services Project Twiggy Phase 2' SoW dated 31 August 2015, in respect of which Glenn Russell is the relevant ALP partner." Privilege has also been claimed on the basis it is "a copy of a communication created by PwC for the dominant purpose set out above (Propend)". 536 Privilege has been claimed over the third email in the chain (from Ms Newton) on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Benn Wogan and Stephanie Newton) in relation to the 'Legal services Project Twiggy Phase 2' SoW dated 31 August 2015, in respect of which Glenn Russell is the relevant ALP partner". Privilege has also been claimed on the basis it is "a copy of a communication created by PwC for the dominant purpose set out above (Propend)". 537 Privilege has been claimed over the fourth email in the chain (from Mr Stewart) on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell, Benn Wogan and Stephanie Newton) in relation to the 'Legal services Project Twiggy Phase 2' SoW dated 31 August 2015, in respect of which Glenn Russell is the relevant ALP partner". Privilege has also been claimed on the basis it is "a copy of a communication created by PwC for the dominant purpose set out above (Propend)". 538 Privilege has been claimed over the fifth email in the chain (from Mr Wogan) on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell, Benn Wogan and Stephanie Newton) in relation to the 'Legal services Project Twiggy Phase 2' SoW dated 31 August 2015, in respect of which Glenn Russell is the relevant ALP partner." 539 PwC Australia submits that, in Document 50, Ms Newton sought instructions from Ms Dale for the purpose of [redacted], and that the further emails in the chain which appear in Document 53 are directed to obtaining that information from Ms Dale (and JBS) for Ms Newton's purposes. It submits that it is to be inferred from the fifth email in the chain that Mr Wogan is providing Ms Newton with information required for that same purpose. PwC Australia contends that the reasonable inference is that the dominant purpose of Document 53 was the obtaining of instructions necessary to complete the legal work being undertaken by Mr Wogan and Ms Newton in respect of the preparation and finalisation of corporate legal documents. 540 In my view, this document is privileged, for the same reasons as set out above in relation to Documents 50, 51 and 52. The emails in the email chain record communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia.

[100]

R28 - PWC.003.001854 541 This document is an email chain of two emails dated 27 September 2015. The first email is from Mr Stewart (PwC Australia - NLP) to Mr Wogan (PwC Australia - ALP) with the words "To discuss", attaching a document with the file name "JBS - Project Twiggy Phase 2 - [Redacted]". The second email is from Mr Wogan to Mr Stewart and Mr Russell (PwC Australia - ALP) (copied to Ms Newton (PwC Australia - ALP)) [redacted]. The step plan is an attachment to the email (Document 55). Mr Wogan states in the email that the attached step plan [redacted] for the dividend/loan receivable". Mr Wogan also provides a list of actions required [redacted]. 542 Privilege has been claimed over the first email in Document 54 (from Mr Stewart) on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Benn Wogan) in relation to the 'Legal services Project Twiggy Phase 2' SoW dated 31 August 2015, in respect of which Glenn Russell is the relevant ALP partner". Privilege has also been claimed on the basis it is "a copy of a communication created by PwC for the dominant purpose set out above (Propend)." 543 Privilege has been claimed over the second email in Document 54 (from Mr Wogan) and the whole of Document 55 on the basis they are "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell and Benn Wogan) in relation to the 'Legal services Project Twiggy Phase 2' SoW dated 31 August 2015, in respect of which Glenn Russell is the relevant ALP partner". 544 Mr Russell gives evidence that Documents 54 and 55 were concerned with work undertaken for the purposes of Statement of Work No 6. He states that the steps discussed in Document 54 were the subject of his final advice on Project Twiggy Phase 2 (see Document 105 below). It is Mr Russell's evidence that he sent an updated version of the draft step plan (Document 55) to JBS Australia on 28 September 2015 [redacted]. Mr Russell gives evidence that the step plan concerned [redacted]. He states that [redacted]. 545 PwC Australia contends that the reasonable inference is that the communication (comprising the email (Document 54) and its attachment (Document 55)) were for the dominant purpose of Mr Russell and/or Mr Wogan providing legal advice to JBS. 546 In my view, Documents 54 and 55 are privileged. It is convenient to focus on the second email in the email chain. The communication comprises this email (including the first email) and the attachment. The advice in the second email falls within the scope of the corporate legal services to be provided pursuant to Statement of Work No 6 ([redacted]). That advice was being given by ALPs at PwC Australia (in this case, Mr Wogan) and concerned the necessary legal requirements [redacted]. In these circumstances, I consider that the communication was made for the dominant purpose of giving or obtaining legal advice from one of more lawyers of PwC Australia. Further, in relation to the first email, I consider this to constitute a copy document and that it was provided for the dominant purpose of the giving or receiving of legal advice. It is therefore privileged.

[102]

A19 - PWC.011.009388 549 This document is an email chain dated between 9 and 28 September 2015 between Mr Sinokula (JBS Australia), Mr Stewart (PwC Australia - NLP), Mr Russell (PwC Australia - ALP), Andrew Wellington (PwC Australia - appears to be NLP) and Masha Lewis (PwC Australia), copied to other personnel at PwC Australia, regarding valuations required for Project Twiggy Phase 2. The subject line of the emails is "JBS Group - Valuations (confidential and subject to LPP)". 550 Privilege was originally claimed over the whole or part of this document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". The document has now been released in redacted form to the Commissioner. The privilege claim is maintained for the parts of the document that are marked with the word "Privilege" in the copy of the Sample Documents provided to the Court, but not for the balance of the document. 551 Mr Russell gives evidence that the first email in the chain, from Mr Stewart on 9 September 2015 at 4.43 pm, summarised discussions Mr Russell had had with Mr Stewart regarding the valuation requirements applicable to JBS Australia if the proposed Phase 2 of Project Twiggy proceeded. Mr Russell states that he approved a draft of the email before it was sent. The fifth email in the chain, from Mr Wellington (a partner at PwC Australia specialising in valuations) on 28 September 2015 at 2.55 pm, sets out which of the valuation tasks were "over and above" PwC Australia's most recent quotation. Mr Russell gives evidence that this work was being prepared under Statement of Work No 6, and was necessary for the purposes of considering the Australian income tax implications in relation to the formation of the proposed tax consolidated group ([redacted] as referred to in Document 105). Mr Russell states that he relied on draft valuation advice prepared by PwC Australia as to market values for assets [redacted] (Document 107). Mr Alvares give evidence at paragraph 49 of his affidavit that he had meetings with the PwC Australia team on the subject of the need for valuations to determine the consequences of proposed reconsolidation steps. His evidence is that the email chain in this document reveals aspects of what was discussed in those meetings and the advice he received from PwC Australia about this issue. Further, Mr Alvares states that he believed Mr Stewart's advice of 9 September 2015 was considered and approved by Mr Russell. 552 PwC Australia submits that the reasonable inference is that the dominant purpose of this communication was to obtain valuations in order for Mr Russell to be able to provide his legal advice. 553 The JBS Parties submit that the document is, or records, communications that reveal instructions or information provided by JBS. 554 In my view, the parts of this document marked with the word "Privilege" in the copy provided to the Court are not privileged. Although Mr Russell was a party to most of the emails in the email chain, in substance the emails represent advice provided by Mr Stewart (an NLP) and Mr Wellington (who appears to be an NLP) regarding valuation requirements applicable to JBS Australia for Phase 2 of Project Twiggy. Given that Mr Stewart and Mr Wellington were not lawyers, and that the subject matter of the email chain concerned valuation, I would characterise their advice as non-legal advice. While Mr Russell gives evidence that he discussed the valuations with Mr Stewart, and approved the email before Mr Stewart sent it, I would nevertheless characterise the advice as non-legal advice, for the reasons given above. 555 As noted above, PwC Australia submits that the dominant purpose of this communication was to obtain valuations in order for Mr Russell to be able to provide his legal advice. This submission seems to rely on the authorities concerning third parties discussed above. The contention seems to be that Mr Stewart and Mr Wellington were third party experts providing an input to enable Mr Russell to provide legal advice to his client (JBS). I do not accept these submissions. While I accept that Mr Russell needed to understand the valuation advice in order to provide advice on certain taxation issues, it does not follow that the dominant purpose of the preparation of the valuation advice was to enable Mr Russell to prepare his legal advice. Based on my review of the document, and having regard to Mr Russell's evidence, I consider there to have been multiple purposes for the communications in this document, including the giving of valuation advice by Mr Stewart and Mr Wellington for the purposes of implementation of the proposed transaction by the client. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 556 As noted above, the JBS Parties submit that the document is or records communications that reveal instructions or information provided by JBS. However, it is necessary to consider whether the dominant purpose test is satisfied. For the reasons given above, I do not consider the dominant purpose test to be satisfied. 557 I therefore conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, the parts of this document marked with the word "Privilege" in the copy provided to the Court are not privileged.

[103]

R30 - PWC.003.001892 558 This document is an email dated 28 September 2015 from Mr Russell (PwC Australia - ALP) to Ms Garland and Mr White (JBS USA) and Mr Alvares, Ms Dale and Mr Sinokula (JBS Australia) (copied to personnel from PwC Australia, PwC USA and PwC Brazil) attaching an updated step plan for Project Twiggy Phase 2 [redacted] (Document 58), and a draft functional currency election to be signed by Mr Alvares in his capacity as public officer of Burcher (Document 59). Document 59 has been released to the Commissioner. 559 Privilege has been claimed over the whole of Document 57 on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Legal services Project Twiggy Phase 2' SoW dated 31 August 2015, in respect of which Glenn Russell is the relevant ALP partner." 560 Privilege has been claimed over the whole of Document 58 on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Legal services Project Twiggy Phase 2' SoW dated 31 August 2015, in respect of which Glenn Russell is the relevant ALP partner". 561 Mr Russell gives evidence in relation to Documents 57, 58 and 59 at paragraphs 288-290 of his affidavit. His evidence is that these documents were prepared subject to Statement of Work No 6. It is Mr Russell's evidence that [redacted] (Document 58). He also gives evidence that [redacted]. 562 PwC Australia submits that the step plan (Document 58) addresses "inherently legal matters", [redacted]. 563 The Amici Curiae submit that there were two purposes for the making of the communications in Document 57, each of equal weight: first, a commercial purpose (the provision of the updated step plan); and secondly, a privileged purpose (the provision of advice regarding the legal requirements relevant to implementing a particular step under the step plan). The Amici Curiae submit that, given their contention that both purposes were of equal weight, it follows that Document 57 is not, and does not record, a communication made for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia. The Amici Curiae submit that, while the dominant purpose of the document as a whole is not a privileged purpose, the second paragraph of Document 57, commencing "Attached for consideration", should be redacted on the basis that disclosure of it would reveal a privileged communication. 564 In my view, Documents 57 and 58 are privileged. The communication comprises the email (Document 57) and its attachments (Document 58 and 59). As noted above, Document 59 has been released. It can, therefore, be put to one side. Document 57 is an email from Mr Russell, an ALP, to his client (JBS). Document 58 is an updated version of the Project Twiggy Phase 2 step plan, [redacted]. In circumstances where Mr Russell sent the email [redacted], I would infer that the changes reflect Mr Russell's advice regarding the proposed transaction. Further, [redacted], I consider that the advice concerned matters of Australian taxation law. In circumstances where the advice was being given by Mr Russell, an ALP, and concerned matters of Australian taxation law, I would characterise the advice as legal advice. In these circumstances, I consider Documents 57 and 58 to be a communication made for the dominant purpose of giving legal advice, and therefore to be privileged.

[106]

A22 - PWC.005.000858 568 This document is an email dated 1 October 2015 from Mr Moss (PwC Australia - NLP) to Wee Liam Foo, John Ratna, and Michael Scheibli (all PwC Australia - NLPs) regarding a draft accounting discussion paper. Attached to the email is the draft accounting discussion paper (Document 61). There are no ALPs copied to the email. 569 Privilege was originally claimed over the whole of Documents 60 and 61 on the basis that they are a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice" and an attachment to an email "which communicated confidential legal advice, or a request for confidential legal advice, between a lawyer and a client, and the attachment was relevant to the seeking or the provision of that legal advice". However, the documents have now been released in redacted form to the Commissioner. The privilege claim is maintained for the parts of Document 60 that are marked with the word "Privilege" in the copy of the Sample Documents provided to the Court, but not for the balance of the document. It appears that the privilege claim is maintained for Document 61. 570 Mr Russell gives evidence in relation to Documents 60 and 61 at paragraphs 291-295 of his affidavit (see also paragraphs 182-186). His evidence is that the draft accounting discussion paper was prepared under Statement of Work No 7. He refers to discussions he had with PwC Brazil and Mr Alvares in relation to accounting issues in the context of advice he was giving on the GRAP. He states that it was necessary for him to understand, in providing that advice, the accounting outcomes for the Australian entities involved in the transactions contemplated by the GRAP, particularly whether any accounting profits potentially arising from the GRAP steps would have implications under the Brazilian CFC rules. He states that he had a telephone call with Mr Moss in which he asked him for assistance in understanding the Australian accounting implications of the GRAP steps, although Mr Russell does not have a clear recollection of precisely what was said in the conversation. Mr Russell states that he subsequently received from Mr Moss or members of his team (including Mr Ratna) several drafts of an accounting topic discussion paper in relation to the GRAP in a similar form to Document 61. Mr Russell states that he reviewed and provided comments on a number of those drafts. Mr Russell states that he considered that, in order for him to provide and finalise his advice on Australian taxation issues in relation to the GRAP, he needed to understand accounting implications of the GRAP steps (the final versions of which are Documents 106 and 116). 571 Mr Alvares gives evidence in relation to Documents 60 and 61 at paragraphs 78-81 of his affidavit. He states that, as the person responsible for instructing PwC Australia, he believed he needed to understand the accounting situation (with the assistance of his internal accounting staff) before he could give instructions to Mr Russell on whether certain steps should proceed or be reconsidered/amended. Mr Alvares states that, "while I understood that Mr Russell was being assisted by accounting experts at PwC, I believed that the advice he gave me had been considered and approved by him". 572 PwC Australia submits that it is to be inferred that this communication (comprising the email and its attachment) was for the dominant purpose of providing the accounting advice in relation to the GRAP steps and that this was for the dominant purpose of Mr Russell providing legal advice in relation to the GRAP. 573 The JBS Parties submit that Documents 60 and 61 are, or record, communications that reveal advice given or under consideration by PwC Australia. 574 In my view, the parts of Document 60 marked with the word "Privilege" in the copy provided to the Court are not privileged, and Document 61 is not privileged. The communication comprises the email and its attachment. Document 60 is an email between non-lawyers. No ALP was party to the email. In substance, the email and its attachment represent advice in relation to accounting issues in relation to the GRAP. Given that the advice was provided by non-lawyers, and concerned matters of accounting, I would characterise the advice as non-legal advice. 575 As noted above, PwC Australia submits that it is to be inferred that this communication (comprising the email and its attachment) was for the dominant purpose of providing the accounting advice in relation to the GRAP steps and that this was for the dominant purpose of Mr Russell providing legal advice in relation to the GRAP. This submission appears to rely on the authorities concerning third party experts discussed above. The contention seems to be that Mr Moss and other accounting experts at PwC Australia were third party experts providing an input to enable Mr Russell to provide legal advice to his client (JBS). I am not persuaded by these submissions. While I accept the evidence of Mr Russell and Mr Alvares discussed above, it does not follow that the dominant purpose of the communication was to enable Mr Russell to provide legal advice to his client. Based on my review of the email and its attachment, and having regard to the evidence of Mr Russell and Mr Alvares, I consider there to have been multiple purposes for the making of the communication, including the giving of accounting advice to assist the client in the development of the GRAP. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 576 Insofar as the JBS Parties submit that Documents 60 and 61 are or record communications that reveal advice given or under consideration by PwC Australia, I do not accept that the documents are privileged on this basis. It is necessary for the communication to satisfy the dominant purpose test. For the reasons given above, the dominant purpose test is not satisfied. 577 Having regard to the above matters, I conclude that the communication was not made for the dominant purpose of giving or receiving of legal advice. Accordingly, the parts of Document 60 marked with the word "Privilege" in the copy provided to the Court are not privileged, and Document 61 is not privileged.

[108]

R33 - PWC.004.002054 580 This document is an email from Mr Stewart (PwC Australia - NLP) to Mr Russell (PwC Australia - ALP) dated 2 October 2015 regarding [redacted]. Mr Stewart states that "[redacted]" The email has the subject line "Confidential and subject to legal professional privilege - GRAP Step Plan". Document 63 is the attachment to Document 62. It comprises a spreadsheet with the heading [redacted]. 581 Privilege has been claimed over the whole of Documents 62 and 63 on the basis they are "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Legal Services - Global Regional Alignment Project' SoW dated 11 September 2015, in respect of which Glenn Russell is the relevant ALP partner". Privilege has also been claimed over part of Document 63 on the basis it is "a copy of a communication created by PwC for the dominant purpose set out above (Propend)." 582 Mr Russell gives evidence that Documents 62 and 63 were concerned with work undertaken for the purposes of Statement of Work No 7 and related to the GRAP. It is Mr Russell's evidence that Mr Stewart sent the email (Document 62) to him so that he could review and approve the attachment (Document 63), into which Mr Stewart had inserted "Australian tax comments". Mr Russell states that, although he does not recall discussing Documents 62 or 63 with Mr Stewart, he had regular conversations with Mr Stewart in which he conveyed his comments [redacted]. Mr Russell states that he reviewed numerous iterations of [redacted] and provided comments which were incorporated into further drafts, and that he approved the final version [redacted]. 583 PwC Australia submits that the reasonable inference is that this communication (comprising the email and the attachment) is for the dominant purpose of Mr Russell providing legal advice to JBS in relation to the GRAP. 584 The Commissioner submits that the Court should be slow to infer the existence of a dominant privileged purpose in circumstances where the communication involved substantial input and involvement by NLPs. 585 The Amici Curiae submit that Document 62 is not privileged. They submit that: the GRAP step plan was being prepared by PwC Australia so as to advise the JBS Global Group as to [redacted], as contemplated by Statement of Work No 7 ([redacted]); this is a commercial purpose, and not a privileged purpose; in that context, Mr Stewart sent this email to Mr Russell for that non-privileged purpose, namely in order to enable PwC Australia to provide updated advice to the JBS Global Group [redacted]. The Amici Curiae note that the email does refer to the fact that its attachment (Document 63) [redacted]. The Amici Curiae submit that, while the legal team at PwC Australia may have provided input to the step plan, a communication with a dominant purpose that is commercial does not become privileged simply because it is contributed to by a lawyer. It follows, the Amici Curiae submit, that Document 62 does not record communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia. 586 In relation to Document 63, the Amici Curiae were unable to reach a complete position regarding its status. The Amici Curiae note that the comments inserted into the spreadsheet by "legal" may well be privileged, but no evidence has been given as to which parts of the spreadsheet incorporate such comments, nor the purpose for their incorporation. The Amici Curiae submit that the balance of Document 63 (that is, the parts that do not reflect comments from "legal") will not be privileged. The Amici Curiae submit that, as stated in relation to Document 62, the GRAP step plan was being prepared by PwC Australia so as to advise the [redacted], as contemplated by Statement of Work No 7. The Amici Curiae submit that this is a commercial purpose, and not a privileged purpose. 587 In my view, Documents 62 and 63 are privileged. The communication comprises the email and the attachment. The email was sent to Mr Russell, an ALP, for the purpose of him reviewing the attachment. The attachment is a spreadsheet headed [redacted]. It is apparent that it contains draft advice on matters of Australian taxation law. This draft advice was inserted into the document by Mr Stewart and, as already noted, the draft was emailed to Mr Russell for him to review. I accept that Mr Russell subsequently substantively reviewed the attachment and adopted the advice in it as his own (making whatever changes he considered necessary). Given that Mr Russell was a lawyer, and the advice concerned matters of Australian taxation law, I would characterise the advice as legal advice. In these circumstances, I consider that the communication was made for the dominant purpose of the giving of legal advice. Further, I consider that disclosure of the documents would tend to reveal the substance or contents of legal advice provided by Mr Russell to JBS, and the documents are therefore protected by privilege. I do not consider it practicable or appropriate to seek to identify parts of Document 63 that contain legal advice, with a view to redacting those parts and releasing the balance of the document. It seems to me, based on the evidence generally, that it would be difficult to identify particular parts of the document as representing legal advice; my impression is that the legal advice runs through the document generally.

[110]

A20 - PWC.011.009771 590 This document is an email chain comprising three emails dated between 9 September 2015 and 8 October 2015. The first email is from Mr Ratna (PwC Australia - NLP) to Mr Stewart (PwC Australia - NLP) and Mr Russell (PwC Australia - ALP), copied to Mr Moss (PwC Australia - NLP), Mr Foo (PwC Australia - NLP) and Mr Scheibli (PwC Australia - NLP) regarding accounting advice in relation to Burcher's recognition and management of its investment in JBS USA Holdings Inc. The second email is from Mr Stewart to Mr Ratna. Mr Russell was copied on the email. The third email is from Mr Ratna to Mr Stewart. Mr Russell is copied on this email. The email attaches a draft accounting advice on the issue referred to above. The attachment is Document 65, which has been released to the Commissioner. 591 Privilege was originally claimed over the whole of Documents 64 and 65 on the basis that they constitute a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". However, Document 64 has now been released in redacted form to the Commissioner, and Document 65 has been released without any redactions. The privilege claim is maintained for the parts of Document 64 that are marked with the word "Privilege" in the copy of the Sample Documents provided to the Court, but not for the balance of that document. 592 Mr Russell gives evidence that the issue the subject of the advice was relevant to an issue he considered [redacted]. He gives evidence this was for the purposes of work under Statement of Work No 7. It is Mr Russell's evidence that the accounting advice was relevant to advice he subsequently gave in relation to the GRAP (Document 116). 593 PwC Australia submits that the reasonable inference is that the advice (and the cover email) was prepared for the dominant purpose of Mr Russell's legal advice to JBS on the structure of the GRAP. 594 The JBS Parties submit that Document 64 is, or records, communications that reveal advice given or under consideration by PwC Australia. 595 In my view, the parts of Document 64 marked with the word "Privilege" in the copy provided to the Court are not privileged. As noted above, Document 65 has been released to the Commissioner. There is therefore no live issue about it, and it can be put to one side. In my view, in substance, the emails constitute advice given by NLPs in relation to accounting issues. 596 As noted above, PwC Australia submits that the reasonable inference is that the advice (and the cover email) was prepared for the dominant purpose of Mr Russell's legal advice to JBS on the structure of the GRAP. This submission seems to rely on authorities concerning third parties that have been discussed above. The contention seems to be that Mr Moss and Mr Ratna were third party experts providing an input to enable Mr Russell to provide legal advice to his client (JBS). I do not accept these submissions. While I accept that the draft accounting advice was relevant to advice Mr Russell subsequently gave in relation to the GRAP, it does not follow that the dominant purpose of the communications was to enable Mr Russell to provide legal advice to his client. Based on my review of the emails and the draft accounting advice, I consider there to have been multiple purposes for the communications, including the giving of advice by Mr Moss and Mr Ratna (and other accounting experts) on accounting issues to assist the client in the development of the GRAP. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 597 Insofar as the JBS Parties submit that Document 64 is or records communications that reveal advice given or under consideration by PwC Australia, this does not take the matter any further. It is still necessary to consider whether the communications satisfy the dominant purpose test. For the reasons set out above, the dominant purpose test is not satisfied. 598 I therefore conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, the parts of Document 64 marked with the word "Privilege" in the copy provided to the Court are not privileged.

[112]

A24 - PWC.011.009931 601 This document is an email dated 15 October 2015 from Mr Stewart (PwC Australia - NLP) to Mr Russell (PwC Australia - ALP) that sets out a draft email for Mr Russell to send to Paulo Veiga (JBS Australia) and commences "Glenn - email for you to send to Paulo re Australian accounting comments". The email subject line is "Confidential and subject to legal professional privilege - GRAP Accounting Comments". Attached to the email is a draft "Accounting Topic Discussion Paper" in relation to the GRAP, on the topic of "Accounting Considerations for Organisation Structure Changes for Australian JBS Group Entities" (Document 67). The draft accounting discussion paper is marked "Confidential and subject to legal professional privilege". 602 Privilege has been claimed over the whole of Documents 66 and 67 on the basis that they are a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice" and an attachment to an email "which communicated confidential legal advice, or a request for confidential legal advice, between a lawyer and a client, and the attachment was relevant to the seeking or the provision of that legal advice". 603 Mr Russell gives evidence in relation to Documents 66 and 67 at paragraphs 301-302 of his affidavit (see also paragraphs 291-295, 337). Some of this evidence has been referred to above in the context of Document 60. In relation to Documents 66 and 67 specifically, Mr Russell states that these documents are an email dated 15 October 2015 from Mr Stewart to him which sets out a draft of the email that he (Mr Russell) sent to Mr Veiga, being the email which is Document 68. Mr Russell states that Document 67 is a duplicate of Document 69. Mr Russell also states that he sent Documents 68 and 69 to Mr Veiga for his comments on the draft accounting discussion paper. 604 Mr Alvares gives evidence about Documents 66 and 67 at paragraphs 78-81 of his affidavit. This evidence has been summarised above, in the context of Document 60. 605 PwC Australia submits that Documents 66 and 67 (comprising the email and attachment) are part of the continuum of correspondence between Mr Russell and Mr Stewart for the purposes of the legal services engagement. It refers to Mr Russell's affidavit at paragraph 70(c) in which he explains the process by which Mr Stewart assisted him with preparing drafts of client communications. PwC Australia contends that the reasonable inference is that these documents are for the dominant purpose of Mr Russell providing legal advice to JBS. 606 The JBS Parties submit that Documents 66 and 67 are, or record, communications that reveal advice given or under consideration by PwC Australia. 607 In my view, Documents 66 and 67 are not privileged. The communication comprises the email and the attached draft accounting discussion paper. In substance, the discussion paper deals with matters of accounting relating to the GRAP. In circumstances where it was prepared by non-lawyers, and having regard to its content, I would characterise the discussion paper as non-legal advice. Insofar as it is contended that the email and the attachment are draft legal advice to be provided by Mr Russell to his client (JBS), I do not accept that contention. The basis of the contention appears to be that the email contains a draft email to be sent by Mr Russell, an ALP, to the client. (An email to substantially the same effect as the draft was subsequently sent by Mr Russell to the client - see Document 68, discussed below.) However, I consider the content of the draft email to be wholly accounting advice. Accordingly, notwithstanding that it is a draft of an email to be sent by Mr Russell, an ALP, to the client, I would characterise the draft email as non-legal advice. Likewise, notwithstanding that the accounting discussion paper was to be sent by Mr Russell, an ALP, to the client, I would characterise it as non-legal advice. 608 I note Mr Russell's evidence that: he received from Mr Moss or members of his team (including Mr Ratna) several drafts of the accounting discussion paper in relation to the GRAP in a similar form to Document 61; he reviewed and provided comments on a number of those drafts; and he considered that, in order for him to provide and finalise his advice on Australian taxation issues in relation to the GRAP, he needed to understand accounting implications of the GRAP steps. I also note his evidence that he provided the draft accounting discussion paper to Mr Veiga for his comments. However, that evidence does not establish that the dominant purpose of the communication comprising Documents 66 and 67 was the giving or receiving of legal advice. Having regard to the content of the draft email and the attachment, I consider there to have been multiple purposes for the making of the communication, including the giving of advice by NLPs to the client (JBS) on accounting issues to assist in the development of the GRAP. This purpose was of at least equal weight as the purpose of giving or receiving legal advice. 609 I note Mr Alvares's evidence that, as the person responsible for instructing PwC Australia, he believed he needed to understand the accounting situation (with the assistance of his internal accounting staff) before he could give instructions to Mr Russell on whether certain steps should proceed or be reconsidered/amended, and that "while I understood that Mr Russell was being assisted by accounting experts at PwC, I believed that the advice he gave me had been considered and approved by him". However, that evidence does not establish that the dominant purpose of the communication comprising Documents 66 and 67 was the giving or receiving of legal advice. For the reasons given in the preceding paragraph, the dominant purpose test is not satisfied. 610 I therefore conclude that the communication was not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, Documents 66 and 67 are not privileged. 611 I make the following additional observation for completeness. Given the way in which the draft email is presented for sending by Mr Russell, and the absence of legal content in the draft email or the attachment, Documents 66 and 67 appear to be an instance of non-legal advice being "routed" through Mr Russell in order to obtain the protection of legal professional privilege.

[114]

A21 - PWC.011.009933 614 This document is an email dated 15 October 2015 from Mr Russell (PwC Australia - ALP) to Mr Veiga (JBS Australia) (copied to others at JBS Australia and PwC Australia) attaching a draft accounting discussion paper. The email subject line is "Confidential and subject to legal professional privilege - GRAP Accounting Comments". The text of the email was drafted by Mr Stewart and sent to Mr Russell before he sent it on to Mr Veiga (see Document 66, discussed above). The email as sent by Mr Russell to Mr Veiga is substantially the same as the draft, save that a new penultimate paragraph has been added. This referred to a call that morning and stated that Mr Ratna was planning to recirculate an updated version of the GRAP plan that night. Attached to the email is a draft "Accounting Topic Discussion Paper" in relation to the GRAP project, on the topic of "Accounting Considerations for Organisation Structure Changes for Australian JBS Group Entities" (Document 69). The draft accounting discussion paper is marked "Confidential and subject to legal professional privilege". This document is substantially the same as Document 67. 615 Privilege has been claimed over the whole of Documents 68 and 69 on the basis that the first forms part of a "confidential continuum of communications between the client and PwC (including PwC lawyers and non-legal advisors working under the direction of a PwC lawyer or on a legal services engagement) for the dominant purpose of obtaining legal advice", and the second is an attachment to an email "which communicated confidential legal advice, or a request for confidential legal advice, between a lawyer and a client, and the attachment was relevant to the seeking or the provision of that legal advice". The Amici Curiae note that another version of the accounting discussion paper (PWC.010.003065) was produced to the Commissioner without a claim for privilege. 616 Mr Russell gives evidence in relation to Documents 68 and 69 at paragraphs 301-302 of his affidavit (see also paragraphs 291-295, 337). This evidence has been summarised above in the context of Documents 60 and 66. 617 Mr Alvares gives evidence about Documents 68 and 69 at paragraphs 78-81 of his affidavit. This evidence has been summarised above, in the context of Document 60. 618 PwC Australia makes substantially the same submissions in relation to Documents 68 and 69 as it makes for Documents 66 and 67. PwC Australia notes that, as Mr Russell deposes, he sent the email and the draft accounting advice to Mr Veiga for his comments on the draft. PwC Australia submits the reasonable inference is that Documents 68 and 69 (comprising the email and attachment) are a communication for the dominant purpose of Mr Russell providing legal advice to JBS. 619 The JBS Parties submit that Documents 68 and 69 are or record communications that reveal advice given or under consideration by PwC Australia. 620 In my view, Documents 68 and 69 are not privileged. The communication comprises the email and the attached draft accounting discussion paper. In substance, the discussion paper deals with matters of accounting relating to the GRAP. In circumstances where it was prepared by non-lawyers, and having regard to its content, I would characterise the discussion paper as non-legal advice. Insofar as it is contended that the email and the attachment are legal advice provided by Mr Russell to his client (JBS), I do not accept that contention. The basis of the contention appears to be that the email is sent by Mr Russell, an ALP, to the client. However, I consider the content of the email to be wholly accounting advice. Accordingly, notwithstanding that it is an email sent by Mr Russell, an ALP, to the client, I would characterise the email as non-legal advice. Likewise, notwithstanding that the accounting discussion paper was sent by Mr Russell, an ALP, to the client, I would characterise it as non-legal advice. 621 I note Mr Russell's evidence that: he received from Mr Moss or members of his team (including Mr Ratna) several drafts of the accounting discussion paper in relation to the GRAP in a similar form to Document 61; he reviewed and provided comments on a number of those drafts; and he considered that, in order for him to provide and finalise his advice on Australian taxation issues in relation to the GRAP, he needed to understand accounting implications of the GRAP steps. I also note his evidence that he provided the draft accounting discussion paper to Mr Veiga for his comments. However, that evidence does not establish that the dominant purpose of the communication comprising Documents 68 and 69 was the giving or receiving of legal advice. Having regard to the content of the email and the attachment, I consider there to have been multiple purposes for the making of the communication, including the giving of advice to the client (JBS) on accounting issues to assist in the development of the GRAP. This purpose was of at least equal weight as the purpose of giving or receiving legal advice. 622 I note Mr Alvares's evidence that, as the person responsible for instructing PwC Australia, he believed he needed to understand the accounting situation (with the assistance of his internal accounting staff) before he could give instructions to Mr Russell on whether certain steps should proceed or be reconsidered or amended, and that "while I understood that Mr Russell was being assisted by accounting experts at PwC, I believed that the advice he gave me had been considered and approved by him". However, that evidence does not establish that the dominant purpose of the communication comprising Documents 68 and 69 was the giving or receiving of legal advice. For the reasons given in the preceding paragraph, the dominant purpose test is not satisfied. 623 I therefore conclude that the communication was not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, Documents 68 and 69 are not privileged. 624 I make the following additional observation for completeness. For the reasons given at [611] above, this appears to be an instance of non-legal advice being "routed" through Mr Russell in order to obtain the protection of legal professional privilege.

[116]

A12 - PWC.008.001400 627 This document is an email from Paulo Veiga (an accountant at JBS Australia) to Mr Stewart (PwC Australia - NLP) and Mr Dunn (PwC Australia - NLP) dated 16 October 2015 with the subject line "New Accounting Step plan". There are no ALPs copied to the email. 628 Privilege has been claimed over the document on the basis that it forms part of a "confidential continuum of communications between the client and PwC (including PwC lawyers and non-legal advisors working under the direction of a PwC lawyer or on a legal services engagement) for the dominant purpose of obtaining legal advice". 629 It is Mr Russell's evidence that he understands the reference to "accounting step plan" to be a reference to the accounting discussion paper attached to the emails at Documents 60, 66 and 68. The accounting discussion paper was prepared under Statement of Work No 7 (which related to the GRAP). Mr Alvares gives evidence that such accounting advice was sought to ensure that there would be no passive income as a consequence of any steps in the GRAP that might have to be reported as income in Brazil. Mr Alvares states that he needed to understand the accounting situation (with the assistance of his internal accounting staff, including Mr Veiga) before he could instruct Mr Russell as to whether certain steps should proceed or be reconsidered or amended. 630 PwC Australia submits that this document is part of the "continuum of communications" between JBS and those assisting Mr Russell in the provision of legal advice to JBS. PwC Australia contends that the reasonable inference is that the communication was for the dominant purpose of Mr Russell providing legal advice. 631 The JBS Parties submit that this document is a communication that reveals instructions or information provided by JBS. 632 In my view, this document is not privileged. In substance, it is a request by the client (JBS) addressed to NLPs at PwC Australia for accounting advice. Given the personnel to whom the request is addressed, and the subject matter of the advice that was requested, I would characterise the advice to be given as non-legal advice. 633 As noted above, PwC Australia submits that this document is part of the "continuum of communications" between JBS and those assisting Mr Russell in the provision of legal advice to JBS. PwC Australia thus contends that the reasonable inference is that the communication was for the dominant purpose of Mr Russell providing legal advice. However, it is necessary for the communication to be made for the dominant purpose of the giving or receiving of legal advice. I consider that this communication was made for multiple purposes, including the giving or receiving of accounting advice to assist in the development of the GRAP. This purpose was of at least equal weight as a purpose of giving or receiving legal advice. 634 As noted above, the JBS Parties submit that this document is a communication that reveals instructions or information provided by JBS. However, it is necessary for the communication to satisfy the dominant purpose test. For the reasons set out above, the dominant purpose test is not satisfied. 635 I therefore conclude that the communication was not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, Document 70 is not privileged.

[117]

R35 - PWC.003.002145 636 This document is an email chain dated between 8 and 27 October 2015 between Mr White (JBS USA), Mr Wogan (PwC Australia - ALP), Mr DeBellis (PwC Australia - NLP), Ms Newton (PwC Australia - ALP) and Mr Russell (PwC Australia - ALP), copied to other personnel at PwC Australia and JBS USA, [redacted]. 637 Privilege has been claimed over the first email in the chain (from Mr White) on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Benn Wogan) in relation to the 'Legal Services - Global Regional Alignment Project' SoW dated 11 September 2015, in respect of which Glenn Russell is the relevant ALP partner". Privilege has also been claimed on the basis it is "a copy of a communication created by PwC for the dominant purpose set out above (Propend)." 638 Privilege has been claimed over the second email in the chain (from Mr Wogan) on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Stephanie Newton and Benn Wogan) in relation to the 'Legal Services - Global Regional Alignment Project' SoW dated 11 September 2015, in respect of which Glenn Russell is the relevant ALP partner". Privilege has also been claimed on the basis it is a copy of "a communication created by PwC for the dominant purpose set out above (Propend)." 639 Privilege has been claimed over the third email in the chain (from Mr DeBellis) on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Benn Wogan) in relation to the 'Legal Services - Global Regional Alignment Project' SoW dated 11 September 2015, in respect of which Glenn Russell is the relevant ALP partner". Privilege has also been claimed on the basis it is "a copy of a communication created by PwC for the dominant purpose set out above (Propend)." 640 Privilege has been claimed over the fourth, fifth and sixth emails in the chain (from Mr Wogan) on the basis they are "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell and Benn Wogan) in relation to the 'Legal Services - Global Regional Alignment Project' SoW dated 11 September 2015, in respect of which Glenn Russell is the relevant ALP partner". Privilege has also been claimed on the basis they are "a copy of a communication created by PwC for the dominant purpose set out above (Propend)." 641 Privilege has been claimed over the seventh email in the chain (from Mr Russell) on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell and Benn Wogan) in relation to the 'Legal Services - Global Regional Alignment Project' SoW dated 11 September 2015, in respect of which Glenn Russell is the relevant ALP partner." 642 Mr Russell gives evidence that this document was concerned with work undertaken for the purposes of Statement of Work No 6. He states that Mr Wogan elevated the matter to him for his attention and approval, which he provided. 643 PwC Australia submits that this document is related to Document 50, which referred to Mr White (JBS USA) [redacted], in connection with draft legal documentation prepared by Ms Newton. It submits that the first email in the email chain is "[redacted]". PwC Australia submits that it is apparent that the second email in the chain from Mr DeBellis was sent following a discussion Mr DeBellis had with Mr White about the same issue. It further submits that the annotations made to that email by Mr Wogan "are obviously legal in nature". PwC Australia contends that the reasonable inference is that this document was for the dominant purpose of Mr Wogan providing legal advice to JBS Australia in relation to the legal documents he and his team were preparing in relation to Project Twiggy Phase 2. 644 In my view, this document is privileged. The advice the subject of these emails is, as contemplated by Statement of Work No 6, [redacted]. That advice falls within the scope of the corporate legal services to be provided pursuant to that Statement of Work, which included identification of Australian legal issues relevant to [redacted] Project Twiggy Phase 2. That advice was being provided by ALPs at PwC Australia (in this case, Mr Wogan and Ms Newton). While Mr DeBellis is involved in the communication, this is limited to [redacted] to Mr Wogan and Ms Newton, and providing input necessary to their advice based on his subject matter expertise. It follows that this document records communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia.

[118]

R36 - PWC.008.001527 645 This document is an email dated 28 October 2015 from Mr Stewart (PwC Australia - NLP) to Mr Russell (PwC Australia - ALP) and Mr Dunn (PwC Australia - NLP) concerning the preparation of the final advice for Project Twiggy Phase 2. Attached to the email is a draft advice from PwC Australia (to be signed by Mr Russell) to JBS Australia (Document 73). The draft advice is dated 29 October 2015 and entitled "[Redacted]" The first two pages of the document [redacted]. The balance of the document comprises a [redacted] tax, stamp duty and accounting implications of Project Twiggy Phase 2. Both the cover letter and the balance of the advice are marked "Subject to legal professional privilege". The final version of the advice is Document 105. 646 Privilege has been claimed over the whole of Document 72 on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Legal services Project Twiggy Phase 2' SoW dated 31 August 2015, in respect of which Glenn Russell is the relevant ALP partner". 647 Privilege has been claimed over the whole of Document 73 on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Legal services Project Twiggy Phase 2' SoW dated 31 August 2015, in respect of which Glenn Russell is the relevant ALP partner". 648 Mr Russell gives evidence in relation to Documents 72 and 73 at paragraphs 307-311 of his affidavit. He states that he understood from Mr Stewart's email that this was an [redacted]. He states that Mr Stewart's email included two attachments, one of which was a marked-up copy of that document and the other of which was a clean version. Document 73 is the clean version of the document. Mr Russell states that, by the time of this draft, the advice was very well advanced and he had spent considerable time on its preparation and had been chiefly involved in the preparation of it. He states that Mr Stewart sent his email to Mr Russell and Mr Dunn, and that while Mr Dunn did not draft the advice he was assisting by undertaking a second partner review role review of the kind described earlier in Mr Russell's affidavit in respect of some aspects of the advice. Mr Russell states that he had previously circulated a draft of the advice to certain people for comments in an email dated 15 October 2015. He states that, as recorded in Mr Stewart's email (that is, Document 72), the draft that is Document 73 incorporates some comments received from others. Mr Russell states that, in this regard: (a) [redacted]; (b) [redacted]; (c) [redacted]; and (d) [redacted]. 649 PwC Australia submits that the reasonable inference is that the dominant purpose of this communication (comprising an email and its attachment) was the provision of legal advice to JBS by Mr Russell. 650 The JBS Parties submit that Document 72 is privileged on the basis that it forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. The JBS Parties submit that Document 73 comprises communications that reveal instructions or information provided by JBS. They also contend that it comprises communications that reveal advice given or under consideration by PwC Australia. 651 The Amici Curiae submit that Documents 72 and 73 are not privileged. They submit that Documents 72 and 73 do not record communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia. The Amici Curiae refer to their contentions regarding the proper conclusion as to the advice itself (i.e. Document 105). It is convenient to set out the substance of the Amici Curiae's submissions in relation to Document 105 at this stage. 652 In relation to Document 105, the Amici Curiae submit that the advice generally is not privileged, but particular sections of the advice are privileged. In relation to the advice generally, the Amici Curiae submit that, while the Australian income tax, stamp duty and accounting implications arising from [redacted], may have depended on, among other things, the application of Australian taxation legislation, the dominant purpose of the provision of this advice was not a privileged purpose. The Amici Curiae submit that the advice was provided for multiple purposes, as follows: (a) to confirm advice that had been given during the course of the project about [redacted] and to inform the preparation and implementation of the Project Twiggy Phase 2 step plan [redacted]; (b) to create a record of the project for JBS Australia (noting that it was ultimately provided in March 2016, the project having completed in either November 2015 or January 2016); and (c) to be provided to KPMG Australia, for the purpose of completing the legal audit of the JBS Australia Group for the financial year ended 27 December 2015. 653 On that basis, the Amici Curiae submit that it cannot be said that that the most influential, or prevailing, purpose for the provision of the advice (i.e. Document 105) was a privileged purpose. The Amici Curiae submit that the advice was prepared by NLPs (including Mr Fuller, Mr Stewart and Mr Dunn) and ALPs acting in their capacity as both lawyers, and as tax and accounting experts (including Mr Russell). It follows, the Amici Curiae submit, that Document 105 does not record communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia. 654 The Amici Curiae submit that, while the dominant purpose of the creation of the advice (i.e. Document 105) as a whole is not a privileged purpose, the sections of the document disclosing the legal advice provided to JBS Australia in relation to [redacted] to Project Twiggy Phase 2 are privileged, as they record the substance of legal advice from PwC Australia to JBS Australia. The Amici Curiae identify those sections as follows: (a) [Redacted]. (b) [Redacted]. (c) [Redacted]. (d) [Redacted]. 655 In my view, Document 72 is privileged and Document 73 is partly privileged. The parts of Document 73 that I consider to be privileged are: the covering letter and sections 1-8 of the advice and the appendix. The part that I consider to be not privileged is section 9 of the advice. 656 Although Documents 72 and 73 are on their face a single communication, in substance, they constitute discrete communications on two topics: matters of Australian taxation law (including stamp duty); and accounting issues. It is therefore appropriate to consider each of these communications separately. 657 In relation to the email and the parts of the draft advice other than section 9, in my view, these are in substance advice about matters of Australian taxation law. In circumstances where the advice was to be given by Mr Russell, an ALP, to the client about matters of Australian taxation law, I would characterise the advice to be given as legal advice. The advice involves the expression of an opinion about the application of provisions of Australian taxation law to the facts of the transaction. However, section 9 of the document is, in my view, of a different character. It concerns the accounting implications of the transaction. I have carefully considered this section of the document and do not consider it to constitute legal advice (whether as to taxation law or corporate law). Given its subject matter, and notwithstanding that the advice was to be given by Mr Russell, an ALP, to the client, I would characterise the advice in section 9 as non-legal advice. 658 In my view, disclosure of the email and the parts of the draft advice other than section 9 would tend to reveal a privileged communication, namely legal advice given or to be given by Mr Russell regarding Project Twiggy Phase 2. For the reasons set out above, I would characterise the advice (other than section 9) as legal advice. I consider that the advice (once finalised, other than section 9) would be a communication made for the dominant purpose of the giving or receiving of legal advice by Mr Russell. I note that NLPs had input into the preparation of the draft advice (putting section 9 to one side). However, in circumstances where the draft was prepared at Mr Russell's direction, was to be substantively reviewed by Mr Russell, and was to be adopted by him as his own advice (with whatever changes he considered appropriate), I consider that the email and the advice (once finalised, other than section 9) would be a privileged communication. Accordingly, I conclude that the email and the parts of the draft advice other than section 9 are protected by privilege. 659 However, section 9 of the draft advice is of a different character. It concerns the accounting implications of the project. For the reasons set above, I consider the advice in section 9 to be non-legal advice. Accordingly, disclosure of this part of the document would not tend to disclose the substance or content of a privileged communication. Further, in my view, section 9 of the draft advice is not a communication made for the dominant purpose of the giving or receiving of legal advice. 660 Accordingly, I conclude that Document 72 is privileged and Document 73 is partly privileged.

[120]

A9 - PWC.011.010299 663 This document is an email chain comprising two emails dated 13 and 17 November 2015 between Mr Russell (PwC Australia - ALP), Mr Fuller (PwC Australia - NLP), Chris Stewart (PwC Australia - NLP), Mr Denovan (PwC Australia - NLP) and Peter Dunn (PwC Australia - NLP) regarding the preparation of a presentation for a potential meeting with the ATO in relation to the GRAP. The email chain has the subject line: "Confidential and subject to legal professional privilege". 664 Privilege has been claimed over the whole of the document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". 665 Mr Russell gives evidence that the presentation was concerned with the FIRB approval process for the GRAP, the ATO being a consulting party for the purposes of the FIRB application, and that when he provided his comments on the presentation (in the second email in the chain), he was doing so as a lawyer under Statement of Work No 7. 666 PwC Australia contends that the presentation was forwarded to Mr Russell for discussion with him and for his comments, and that in this regard Mr Russell was acting as a lawyer and the PwC partner responsible in respect of the GRAP under Statement of Work No 7. It further contends that the purpose of Mr Russell's email is to provide his comments on the draft presentation in his capacity as a legal advisor to JBS. PwC Australia submits that the reasonable inference is that the dominant purpose of the communication was the provision of legal advice to JBS by Mr Russell. 667 The JBS Parties submit that this document is privileged on the basis that it forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. 668 The Amici Curiae submit that this document is not privileged on the basis that the communication related to PwC Australia meeting with the ATO in relation to the FIRB process, and the email from Mr Russell contains comments on the layout, structure and content of the presentation forwarded by Mr Dunn. 669 In my view, this document is privileged. In substance, the second email in the chain (from Mr Russell) contains advice provided by him regarding the preparation of a presentation for a potential meeting with the ATO in relation to the FIRB approval process for the GRAP. In circumstances where the presentation was for a potential meeting with the ATO, and where the comments were provided by Mr Russell, an ALP, I would characterise Mr Russell's advice as legal advice. Although this advice was not provided (or to be provided) directly to the client and some of the points appear to go to matters of form rather than substance, it was closely related to, and part of, the provision of legal services to the client, namely the preparation of the presentation to the ATO. Accordingly, I consider the communication in the second email to be a communication made for the dominant purpose of the giving or receiving of legal advice or legal services. In relation to the first email, I consider this also to constitute a communication made for the dominant purpose of the giving or receiving of legal advice or legal services.

[121]

A38 - PWC.007.002844 670 This document is a chain of emails dated between 16 and 18 November 2015 between personnel from JBS SA, PwC USA, PwC Luxembourg and PwC Australia regarding a distribution from Burcher to JBS Holding Lux Sarl for the purposes of the GRAP. The first is an email from Ms Manzano (JBS SA) to Mr Stout (PwC USA) asking whether PwC will help with "the legal documents of the dividends distribution (steps 9 to 12)". The second is an email from Mr Stout copying personnel from PwC Luxembourg to the email chain. The third is an email from Mathieu Feldmann (PwC Luxembourg) confirming that they would assist with the Luxembourg steps and noting that one important thing to be considered will be the preparation of interim accounts of the Luxembourg companies showing that they have sufficient available reserves and profit to make the distributions. The fourth is an email from Ms Manzano asking Mr Stout to confirm with "someone in Australia if the distribution of the USD950M note receivable by Burcher to JBS Holding Lux will be made through dividends remittance or capital reduction?" Ms Manzano stated that "[t]his is very important to prepare the interim accounts in Luxembourg and previous legal documents". The fifth is an email from Mr Stout copying personnel from PwC Australia, namely Mr Russell (ALP), Mr Dunn (NLP), Mr Fuller (NLP), Mr Denovan (NLP) and Mr Wogan (ALP), which notes that the "PwC Australia team is copied above so that we can get an update on where they stand". The sixth is an email from Mr Fuller to Mr Dunn stating: "Assume you have this in hand". The seventh is an email from Mr Dunn to Mr Fuller stating that he was "[w]orking on it with the accounting guys". No substantive emails in the email chain were authored by ALPs. 671 Privilege has been claimed over the whole of the document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". Privilege has also been claimed on the additional basis that it is "for the dominant purpose of JBS requesting or being provided with legal advice from JBS in-house lawyers (including Khalil Kaddissi)". 672 Mr Russell gives evidence about this document at paragraphs 317-320 of his affidavit. He notes that in the fourth email in the chain, Ms Manzano asked whether someone in Australia could confirm if the distribution of USD 950 million proposed to be paid by Burcher to JBS Holding Lux Sarl would be made by way of dividend or capital reduction. Mr Russell states that this question relates to an issue described earlier in his affidavit. Mr Russell states that, by the time of these emails, he had already been substantively considering this (with the assistance of others, including the PwC accounting team) for some time, and that he had carriage of the issue. He states that he does not recall Mr Dunn being involved in the consideration of this issue. Mr Russell states that this matter is addressed at [redacted] (which is Document 116). Ms Manzano gives evidence that these emails reveal a request for advice she sent PwC USA so she could assist Mr Kaddissi in preparing advice for the JBS SA Board, and that she expected PwC USA to liaise with PwC Australia about those issues. Mr Alvares gives evidence that these emails reveal the subject of discussions he had with PwC Australia about the transaction. 673 PwC Australia submits that the issue raised in Mr Feldmann's email (the third email in the chain) "is ultimately a question of Australian law". It submits that it is to be inferred that the accounting implications of amounts to be received by Burcher as part of the GRAP steps informed [redacted]. It submits that it is to be inferred that Mr Stout's email (the fifth email in the chain) was a request for legal advice from JBS to PwC Australia. PwC Australia contends that the reasonable inference is that Document 75 is for the purpose of obtaining input from the PwC accounting team in relation to the requirements for Burcher accounting for its interest in its subsidiary, which was for the dominant purpose of Mr Russell providing legal advice to JBS. 674 The JBS Parties submit that this document is privileged on the basis that it forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statement of Work. 675 In my view, this document is not privileged. The evidence does not establish that any of the communications in the emails in the email chain were made for the dominant purpose of the giving or receiving of legal advice (in particular, legal advice from Mr Russell as to whether ([redacted]). I consider each of the communications to have been made for multiple purposes, including the giving or obtaining of accounting advice by NLPs (including Mr Dunn) at PwC Australia to assist in the preparation of the interim accounts of the Luxembourg entities. This purpose was of at least equal weight as a purpose of giving or receiving legal advice. I therefore conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice.

[122]

A25 - PWC.008.001946 676 This document is an email chain dated 19 November 2015 between Mr Conomy and Ms Vergueiro (PwC Brazil) and Mr Denovan (PwC Australia - NLP) (copied to Mr Fuller (PwC Australia - NLP) and Mr Dunn (PwC Australia - NLP)) in relation to two issues: first, whether the GRAP funding could be provided to an operating company within the JBS Australia Group rather than a special purpose vehicle; and secondly, the impact from an Australian tax perspective of keeping a promissory note on foot for longer than contemplated in the GRAP step plan at that time. The subject line of the emails is "JBS - Aussie financing". There are no ALPs copied to the email chain. 677 Privilege has been claimed over the whole of the document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". 678 Mr Russell gives evidence that he does not recall these emails from the time. He recalls saying on a weekly internal PwC call that the first issue raised was "[redacted]". Mr Russell does not recall specific discussions on the second issue but says it is likely he had discussions in relation to it on the weekly internal PwC calls. Mr Alvares gives evidence that this email chain reveals the content of the proposed financing structure at the time, which was the subject of several discussions he had with Mr Russell and the PwC team. 679 PwC Australia submits that the advice given by Mr Russell on the weekly internal PwC call in relation to the first issue "is plainly legal advice from Mr Russell". It contends that this document is consistent with Mr Fuller and Mr Denovan's role in obtaining input from PwC Brazil which was necessary in order for Mr Russell to give his legal advice and that the reasonable inference is that this document is for the dominant purpose of Mr Russell providing his legal advice. 680 The JBS Parties submit that this document is privileged on the basis that it forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. 681 In my view, this document is not privileged. No ALPs were copied to the emails. In substance, the two emails in the chain from Mr Denovan contains advice from Mr Denovan, an NLP, on financing and tax issues. In circumstances where Mr Denovan was not a lawyer, I would characterise this advice as non-legal advice (albeit relating to tax issues). 682 As noted above, PwC Australia submits that this document is consistent with Mr Fuller and Mr Denovan's role in obtaining input from PwC Brazil which was necessary in order for Mr Russell to give his legal advice and that this document is for the dominant purpose of Mr Russell providing his legal advice. I do not accept these submissions. While I accept Mr Russell's and Mr Alvares's evidence set out above, it does not follow that the dominant purpose of the communications was the giving or receiving of legal advice by Mr Russell to his client (JBS). Based on my review of the document, I consider there to have been multiple purposes for the making of the communications, including the giving of advice by Mr Denovan on financing and tax issues to assist the client in developing the financing structure of the transaction. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 683 Insofar as the JBS Parties submit that this document is privileged on the basis that it forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work, I do not accept that submission. Mr Russell was not copied on these emails. Further and in any event, for the reasons set out above, the dominant purpose test is not satisfied. 684 Having regard to the above matters, I conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, this document is not privileged.

[123]

A4 - PWC.007.002954 685 This document is an email chain dated between 26 and 28 November 2015 between personnel from PwC Australia, PwC USA, PwC Ireland and PwC Brazil (copied to Mr Kaddissi (JBS SA)) with the subject line "JBS - select partner question", regarding the possible listing of a new JBS entity on the New York Stock Exchange. There are no ALPs copied to the emails. 686 Privilege was originally claimed over the whole of the document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". However, the respondents have now released part of the document to the Commissioner. They have released all the emails in the chain other than the latest two emails, being an email from Mr Kulich (PwC USA) dated 28 November 2015, and an email from Mr Fuller (PwC Australia - NLP) to Mr Kulich dated 28 November 2015. The part of the document over which privilege is still claimed (i.e. the latest two emails) is marked with the word "Privilege" in the copy provided to the Court. 687 Mr Russell does not give any evidence in relation to this document. Mr Alvares gives evidence at paragraph 72 of his affidavit that these emails were concerned with the possible listing of a new JBS entity on the New York Stock Exchange (which Mr Kaddissi and others commonly referred to as an "inversion"). Mr Alvares states that he understood this was under consideration by the Board of JBS Brazil. He states that it was important to JBS Australia that the PwC Australia team be kept informed of this possibility so that they could consider its impact in their advice on the GRAP steps that were under consideration. Ms Manzano gives evidence at paragraph 26 of her affidavit that this document reveals the subject and part of the content of discussions she had with Mr Kaddissi. 688 PwC Australia does not make any substantive submissions about this document in the schedule of submissions attached to its outline of opening submissions, other than referring to the evidence in relation to the document. 689 The JBS Parties submit that this document is privileged on the basis that it forms part of a "continuum of communications" between JBS lawyers and others (including PwC employees) that are directly related to the performance by the in-house lawyers (including Mr Kaddissi) in their duty as lawyers to advise JBS parties. 690 In my view, the part of this document marked with the word "Privilege" in the copy provided to the Court is not privileged. In substance, this part of the document contains advice from Mr Kulich regarding the possible listing of a JBS entity on the New York Stock Exchange. In circumstances where Mr Kulich was not a lawyer, I would characterise the advice as non-legal advice. While I accept the evidence of Mr Alvares and Ms Manzano set out above, this does not establish that the dominant purpose of the communications was the giving or receiving of legal advice. I consider there to have been multiple purposes for the communications in the latest two emails in the email chain, including the giving of advice by Mr Kulich to assist the client in the development of the structure of the GRAP. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. I therefore conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice.

[124]

A44 - PWC.007.002955 691 This document is a chain of emails dated between 27 and 28 November 2015 between Ms Vergueiro (PwC Brazil), Mr Fuller (PwC Australia - NLP) and Mr Denovan (PwC Australia - NLP) (copied to other personnel at PwC Brazil and PwC USA) in relation to the potential to delay the loan of funds into Australia from overseas which was required to facilitate the GRAP until after the implementation of the GRAP. The subject line of the emails is "Timing of aus debt pushdown". There are no ALPs copied to the emails. This email chain is an earlier version of the email chain in Document 79. 692 Privilege has been claimed over the whole of the document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". 693 Mr Russell gives evidence in relation to Documents 78 and 79 at paragraphs 326-331 of his affidavit. His evidence is that these documents were concerned with work undertaken for the purposes of Statement of Work No 7. He states that he had a conversation with Mr Fuller regarding the issues the subject of the email chain, and that while he does not now recall instructing Mr Fuller to relay his (Mr Russell's) position to PwC Brazil, he expected him to do so, and that Mr Fuller's email within the chain reflected Mr Russell's views. Mr Alvares gives evidence in relation to Documents 78 and 79 at paragraph 74 of his affidavit. His evidence is that the documents reveal aspects of the taxation and corporate advice he had received from PwC Australia about the draft GRAP steps concerning debt funding and the importance of that funding structure. 694 PwC Australia submits that PwC Brazil was "effectively the agent of JBS" for the purpose of communicating with PwC Australia about the Australian tax implications of the GRAP structure. It submits that Mr Fuller relayed Mr Russell's view (that view being legal advice) to PwC Brazil. It contends that it is reasonable to infer the dominant purpose of the communication was the provision of legal advice by Mr Russell to JBS. 695 The JBS Parties submit that this document is privileged on the basis that it forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. 696 In my view, this document is not privileged. In substance, the email chain contains Mr Fuller's and Mr Denovan's advice regarding the potential to delay the loan of funds into Australia from overseas which was required to facilitate the GRAP until after the implementation of the GRAP. In circumstances where Mr Fuller and Mr Denovan were not lawyers, I would characterise this advice as non-legal advice. 697 As noted above, PwC Australia submits that PwC Brazil was "effectively the agent of JBS" for the purpose of communicating with PwC Australia about the Australian tax implications of the GRAP structure, that Mr Fuller relayed Mr Russell's view (that view being legal advice) to PwC Brazil, and that the dominant purpose of the communication was the provision of legal advice by Mr Russell to JBS. I do not accept that submission. I will assume for present purposes that PwC Brazil was acting as the agent of JBS. I note that Mr Russell was not copied to Mr Fuller's email, and that there is no indication in the email that it constitutes Mr Russell's advice rather than Mr Fuller's advice. To the extent that Mr Russell gives evidence that the email from Mr Fuller constitutes his (Mr Russell's advice), being communicated by Mr Fuller on Mr Russell's behalf, I do not accept that evidence, given Mr Russell's lack of recollection of having instructed Mr Fuller to expressly relay his position to PwC Brazil, and given that the email was not copied to Mr Russell and that there is no indication that the email represents Mr Russell's advice. I consider Mr Fuller's email to be a communication of Mr Fuller's advice on the issue. 698 As noted above, the JBS Parties submit that this document is privileged on the basis that it forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. I do not accept that submission. It is necessary for the communications to be made for the dominant purpose of the giving or receiving of legal advice. Here, there were multiple purposes for the communications, including the giving of (non-legal) advice by Mr Fuller and Mr Denovan to assist the client in the development of the GRAP. This purpose was of at least equal weight to a purpose of the giving or receiving of legal advice. 699 I therefore conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, this document is not privileged.

[126]

A30 - PWC.008.002174 705 This document is an email from Mr Moss (PwC Australia - NLP) to Mr Russell (PwC Australia - ALP) (copied to others at PwC Australia) dated 29 November 2015 regarding a paper presenting "management's view on the Burcher transaction" being contemplated as part of the GRAP. The subject line of the email is "JBS - Burcher Management Paper (Confidential and subject to LPP)". Attached to the email is a paper headed "JBS Management Paper" on the topic "Accounting for interposition of Burcher P/L between JBS Hun Lux and JBS USA Holdings, Inc in the separate financial statements of Burcher P/L" dated 24 November 2015 (Document 81). 706 Privilege has been claimed over the whole of the Documents 80 and 81 on the basis that they are a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice" and an attachment to an email "which communicated confidential legal advice, or a request for confidential legal advice, between a lawyer and a client, and the attachment was relevant to the seeking or the provision of that legal advice". 707 Mr Russell gives evidence about Documents 80 and 81 at paragraphs 332-334 of his affidavit. He gives evidence that he had been aware since about May or June 2015 of an issue that had been raised regarding a potential distribution by Burcher then being contemplated as part of the GRAP. Mr Russell states that, on 24 November 2015, he sent an email to Mr Kulich and Mr Stout following a discussion with them earlier that day regarding this issue. Mr Russell states that that analysis turned in part on an assumption that Burcher would have sufficient profits from which to declare a dividend. He states that Document 81 is a paper that addressed the appropriate accounting treatment of the proposed reorganisation in respect of Burcher being interposed as the new parent of JBS USA Holdings Inc, an issue discussed earlier in his affidavit. Mr Russell states that this issue was relevant to his advice on the GRAP structure and its tax implications. Mr Alvares gives evidence on Documents 80 and 81 at paragraph 83 of his affidavit. He states that he wanted accounting advice on how Burcher should account for its investments, so he could understand the implications and thus ask for advice from Mr Russell on how any adverse consequences could be avoided. 708 PwC Australia submits that the reasonable inference is that the purpose of Documents 80 and 81 (comprising the email and its attachment) was for Mr Moss to inform Mr Russell of the accounting treatment JBS proposed to apply to Burcher, which was for the dominant purpose of Mr Russell providing his legal advice. 709 The JBS Parties submit that Documents 80 and 81 are communications that reveal instructions or information provided by JBS. 710 In my view, Documents 80 and 81 are not privileged. The communication comprises the email (Document 80) and its attachment (Document 81). In substance, Document 81 represents accounting advice in relation to the appropriate accounting treatment of the internal reorganisation which results in Burcher being interposed as the new parent of JBS USA Holdings, Inc for Burcher Pty Ltd in its separate financial statements (as indicated by the first paragraph of the document). Although parts of the document are expressed as being JBS management's view, the first paragraph of the document indicates that the document involves a consideration of the appropriate accounting treatment. I infer from the fact that it was sent by Mr Moss to Mr Russell that the document was prepared by Mr Moss (and perhaps other NLPs at PwC Australia). By the email (Document 80), Mr Moss provides a copy of the paper to Mr Russell. The email does not state why the paper was being provided to Mr Russell (other than stating that it presents management's view on the accounting issue). 711 As noted above, PwC Australia submits that the purpose of the communication (comprising the email and its attachment) was for Mr Moss to inform Mr Russell of the accounting treatment JBS proposed to apply to Burcher, which was for the dominant purpose of Mr Russell providing his legal advice. I do not accept this submission. While I accept Mr Russell's and Mr Alvares's evidence set out above, it does not follow from that evidence that the dominant purpose of the communication was to enable Mr Russell to give legal advice to his client (or to enable Mr Alvares to instruct Mr Russell). Based on my review of the documents, I consider there to have been multiple purposes for the making of the communication, including the giving of accounting advice by Mr Moss (and perhaps other NLPs) to assist the client to determine the appropriate accounting treatment of the steps discussed in the paper. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 712 As noted above, the JBS Parties submit that Documents 80 and 81 are communications that reveal instructions or information provided by JBS. However, it is necessary for the communications to be made for the dominant purpose of giving or receiving legal advice. For the reasons set out above, the dominant purpose test is not satisfied. 713 Having regard to the above matters, I conclude that the communication was not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, Documents 80 and 81 are not privileged.

[128]

A28 - PWC.008.002181 716 This document is an email dated 29 November 2015 from Mr Russell (PwC Australia - ALP) to Mr Alvares, Mr Marinho, Mr Veiga, Ms Dale and Mr Sinokula (JBS Australia) (copied to various NLPs at PwC Australia). The subject line of the email is "Legal advice - Confidential and subject to legal professional privilege". The email also includes a bold heading to like effect. The email commences: "Attached is an updated draft of the legal advice outlining the accounting implications of the GRAP steps". Attached to the email is a document comprising a cover letter from Mr Russell to Mr Alvares dated 27 November 2015 and an advice headed "Accounting Topic Discussion Paper" relating to the GRAP on the topic "Accounting Considerations for Organisation Structure Changes for Australian JBS Group Entities" (Document 83). The cover letter part of that document includes a bold notation "Confidential and subject to legal professional privilege". The letter has the heading "PwC Legal Advice - Global Regional Alignment Project" and includes: "We have attached a draft Appendix to our draft legal advice in relation to the [GRAP]. The Appendix contains PwC's draft advice in relation to the accounting implications of the [steps] in the GRAP step plan. The draft advice contained in this Appendix has been prepared for the sole purpose of providing our legal advice on the GRAP project." The letter also states that "[t]his legal advice has been provided in accordance with our Statement of Work dated 11 September 2015". 717 Privilege has been claimed over the whole of Documents 82 and 83 on the basis that the first forms part of a "confidential continuum of communications between the client and PwC (including PwC lawyers and non-legal advisors working under the direction of a PwC lawyer or on a legal services engagement) for the dominant purpose of obtaining legal advice", and the second is an attachment to an email "which communicated confidential legal advice, or a request for confidential legal advice, between a lawyer and a client, and the attachment was relevant to the seeking or the provision of that legal advice". 718 Mr Russell gives evidence about Documents 82 and 83 at paragraphs 335-338 of his affidavit. He refers to his evidence in relation to Document 61, which is a draft of the accounting discussion paper that is Document 83. Mr Russell states that he considered that in order for him to provide and finalise his advice on Australian taxation issues in relation to the GRAP, he needed to understand accounting implications of the GRAP steps. He states that this version of the discussion paper also included journal entries, although these were not the major part of the advice. He states that the journal entries were useful to help him understand the accounting implications of certain steps (for example those in relation to [redacted]), and useful to assist him with future conversations he was to have with Mr Alvares in respect of his advice. He states that, although it is possible that this information could have been conveyed to him in another format such as written narratives, he does not consider that would have been as helpful to him. Mr Russell states that he otherwise regarded the discussion paper as necessary for the purposes of his advice. Mr Russell states that this was all work in respect of the GRAP and was undertaken for the purposes of the Statement of Work No 7. 719 Mr Alvares gives evidence in relation to Documents 82 and 83 at paragraphs 78-81 of his affidavit. This has been referred to above, but for convenience I summarise it again here. Mr Alvares states that, as the person responsible for instructing PwC Australia, he believed he needed to understand the accounting situation (with the assistance of his internal accounting staff) before he could give instructions to Mr Russell on whether certain steps should proceed or be reconsidered/amended. Mr Alvares states that, "while I understood that Mr Russell was being assisted by accounting experts at PWC, I believed that the advice he gave me had been considered and approved by him". He also states that the various drafts of the advices he received from PwC in October 2015 (including Documents 82 and 83) also reveal aspects of the advice he had received earlier from Mr Russell, namely the various transactions that at that time formed part of draft GRAP step plans that he understood were being recommended by PwC. 720 PwC Australia repeats the submissions it makes in relation to Documents 60 and 61. As set out above, in relation to those documents, PwC Australia submitted that it is to be inferred that the communication (comprising the email and its attachment) was for the dominant purpose of providing the accounting advice in relation to the GRAP steps and that this was for the dominant purpose of Mr Russell providing legal advice in relation to the GRAP. PwC Australia further submits, in relation to Documents 82 and 83, that the accounting discussion paper was a necessary input of Mr Russell's legal advice in respect of the GRAP. It submits that the reasonable inference is that the communication (which comprises the email and its attachment) was for the dominant purpose of Mr Russell providing his legal advice. 721 The JBS Parties submit that Documents 82 and 83 constitute legal advice given by lawyers (including Mr Russell). They also contend that the documents are or record communications that reveal advice given or under consideration by PwC Australia. 722 In my view, Documents 82 and 83 are not privileged. The communication comprises the email and the attachment. In substance, the email and the attachment constitute accounting advice relating to the GRAP steps prepared by NLPs at PwC Australia. Despite the references to legal professional privilege, and the description of the content of the accounting topic discussion paper as "legal advice" in the email and covering letter, I would characterise the advice as non-legal advice. This characterisation is supported by the heading of the discussion paper ("Accounting Topic Discussion Paper") and by the contents of the discussion paper. The paper involves a detailed analysis of the accounting considerations relevant to the GRAP steps. It does not involve, for example, the application of taxation law or corporate law. 723 As noted above, PwC Australia submits that the accounting discussion paper was a necessary input of Mr Russell's legal advice in respect of the GRAP, and that the communication (which comprises the email and its attachment) was for the dominant purpose of Mr Russell providing his legal advice. The contention appears to rely on the authorities concerning third parties discussed above. The contention seems to be that the NLPs who prepared the accounting discussion paper were third party experts providing an input to enable Mr Russell to provide legal advice to his client (JBS) (or to enable Mr Alvares to instruct Mr Russell). I do not accept these submissions. It is difficult to reconcile the submissions with the communication being one from Mr Russell to the client. Further, while I accept that Mr Russell needed to understand the accounting treatment in order to provide his Australian tax advice, it does not follow that the dominant purpose of the communication was to enable Mr Russell to provide legal advice to his client (or for Mr Alvares to instruct Mr Russell). Based on my review of the documents, I consider there to have been multiple purposes for the communication, including the giving of advice by PwC Australia to the client (JBS) as to the accounting treatment of the GRAP steps. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 724 As noted above, the JBS Parties submit that Documents 82 and 83 constitute legal advice given by lawyers (including Mr Russell) and that the documents are or record communications that reveal advice given or under consideration by PwC Australia. If and to the extent that the JBS Parties submit that Documents 82 and 83 constitute the giving of legal advice by Mr Russell (an ALP) to his client (JBS), I do not accept that submission. Although both the email and the covering letter describe the advice as "legal advice", I do not accept this characterisation. For the reasons given above, I would characterise the advice as non-legal advice. Accordingly, in my view, the communication was not made for the dominant purpose of giving or receiving legal advice. 725 I therefore conclude that the communication was not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, Documents 82 and 83 are not privileged. 726 I make the following additional observation for completeness. Given the nature of the accounting discussion paper (as described above), Documents 82 and 83 appear to be an instance of non-legal advice being "routed" through Mr Russell in order to obtain the protection of legal professional privilege.

[131]

A29 - PWC.008.002439 730 This document is an email from Mr Ratna (PwC Australia - NLP) to Mr Alvares, Mr Marinho, Mr Sinokula, Mr Veiga, Ms Dale (JBS Australia) and Ms Garland (JBS USA) (copied to personnel at PwC Australia (including Mr Russell (ALP)) and PwC USA) dated 2 December 2015. The email subject line is "Legal advice - confidential and subject to legal professional privilege". The email states that "[a]ttached is draft legal advice outlining our preliminary comments on the functional currency implications under Australian accounting standards for the Australian entities after the GRAP restructure". Attached to the email is a document comprising a covering letter from Mr Russell to Mr Alvares dated 2 December 2015 and a draft memorandum (Document 86). The cover letter has a bold notation "Confidential and subject to legal professional privilege". It is headed "PwC Legal Advice - Global Regional Alignment Project" and states in part: "We have attached a draft Appendix to our draft legal advice in relation to the [GRAP]. The Appendix contains PwC's draft advice in relation to the accounting functional currency assessment for the Australian entities in the JBS Group before and after the GRAP. The draft advice contained in this Appendix has been prepared for the sole purpose of providing our legal advice on the GRAP Project". The letter also states that this legal advice has been provided in accordance with Statement of Work No 7. The draft memorandum forming part of Document 86 has the topic, "Potential currency assessment" and the description, "Consideration of functional currency indicators and assessment of functional currency of Australian entities in the JBS Group before and after GRAP (dated 25 November 2015)". 731 Privilege has been claimed over the whole of Documents 85 and 86 on the basis that it is part of a "confidential continuum of communications between the client and PwC (including PwC lawyers and non-legal advisors working under the direction of a PwC lawyer or on a legal services engagement) for the dominant purpose of obtaining legal advice", and an attachment to an email "which communicated confidential legal advice, or a request for confidential legal advice, between a lawyer and a client, and the attachment was relevant to the seeking or the provision of that legal advice". 732 Mr Russell gives evidence in relation to Documents 85 and 86 at paragraphs 342-344 of his affidavit. His evidence is that Mr Ratna prepared the memorandum at his request, and that he provided input and comments. Mr Russell states it was relevant as an input to issues he was then advising on, including [redacted]. Mr Russell states that the final version of Document 86 was an appendix to his final advice in relation to the GRAP (Document 116). Mr Alvares gives evidence about Documents 85 and 86 at paragraphs 78-81 of his affidavit. This evidence has been referred to above, in the context of Document 82. 733 PwC Australia submits that Documents 85 and 86 constitute an expert opinion from the PwC accounting team in respect of issues which Mr Russell needed to understand in order to advise on [redacted]. It contends that the reasonable inference is that Documents 85 and 86 (comprising the email and its attachment) was for the dominant purpose of Mr Russell providing legal advice to JBS. 734 The JBS Parties submit that Documents 85 and 86 fall within the category of legal advice given by lawyers (including Mr Russell). 735 In my view, Documents 85 and 86 are not privileged. The communication comprises the email and the attachment. In substance, the communication is accounting advice relating to an aspect of the GRAP, namely the functional currency of the Australian entities in the JBS Group before and after the GRAP. Despite the references to legal professional privilege, and the description of the content of the draft memorandum as "legal advice" in the email and the covering letter, I would characterise the advice as non-legal advice. This characterisation is supported by the topic of the memorandum ("Functional currency assessment") and by the contents of the memorandum. The memorandum involves a detailed discussion of accounting issues relating to the functional currency of the entities. It does not involve, for example, the application of taxation law or corporate law. 736 As noted above, PwC Australia submits that Documents 85 and 86 constitute an expert opinion from the PwC accounting team in respect of issues which Mr Russell needed to understand in order to advise on [redacted], and that Documents 85 and 86 were for the dominant purpose of Mr Russell providing legal advice to JBS. The contention appears to rely on the authorities concerning third parties discussed above. The contention seems to be that the NLPs who prepared the accounting memorandum were third party experts providing an input to enable Mr Russell to provide legal advice to his client (JBS) (or to enable Mr Alvares to instruct Mr Russell). I do not accept these submissions. It is difficult to reconcile these submissions with the communication being one from PwC Australia to the client. Further, while I accept that Mr Russell needed to understand the functional currency assessment in order to provide his Australian tax advice, it does not follow that the dominant purpose of the communication was to enable Mr Russell to provide legal advice to his client (or for Mr Alvares to instruct Mr Russell). Based on my review of the documents, I consider there to have been multiple purposes for the communication, including the giving of advice by PwC Australia to the client (JBS) as to the functional currency of the Australian entities in the JBS Group before and after the GRAP to assist the client in the development of the GRAP. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 737 If, and to the extent that, the JBS Parties submit that Documents 85 and 86 constitute the giving of legal advice by Mr Russell (an ALP) to his client (JBS), I do not accept that submission. Although both the email from Mr Ratna (Document 85) and the covering letter from Mr Russell describe the advice as "legal advice", I do not accept this characterisation. For the reasons given above, I would characterise the advice as non-legal advice. Accordingly, in my view, the communication was not made for the dominant purpose of giving or receiving legal advice. 738 I therefore conclude that the communication was not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, Documents 85 and 86 are not privileged. 739 I make the following additional observation for completeness. Given the nature of the draft accounting memorandum (as described above), and the form of the covering letter from Mr Russell to Mr Alvares, Documents 85 and 86 appear to be an instance of non-legal advice being "routed" through Mr Russell in order to obtain the protection of legal professional privilege.

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R38 - PWC.011.010960 742 This document is a chain of emails dated between 15 October 2015 and 3 December 2015 between Mr Russell (PwC Australia - ALP), Mr Kulich (PwC USA) and Ms Vergueiro (PwC Brazil) (copied to Mr Fuller (PwC Australia - NLP), Mr Stewart (PwC Australia - NLP), Mr Denovan (PwC Australia - NLP) and Mr Dunn (PwC Australia - NLP) and personnel at PwC Brazil and PwC USA) regarding the draft advice for Project Twiggy Phase 2. The first email in the chain is dated 15 October 2015 and is from Mr Russell. It attaches the draft advice [redacted]. The second email in the chain, dated 16 October 2015, is from Mr Kulich, and sets out [redacted]. The third email in the chain, dated 29 November 2015, is from Mr Russell asking Mr Kulich, Mr Stout and Ms Vergueiro to consider an additional question in relation to the draft advice: "[Redacted] have been a material risk of a book gain in Holdings LLC and under US GAAP (or failing that, Brazilian GAAP)? [Redacted]". The fourth email in the chain is dated 1 December 2015 and is from Mr Russell chasing the recipients for comments on his email dated 29 November 2015. The fifth email in the chain is dated 3 December 2015 and is a response from Ms Vergueiro to [redacted]. 743 Privilege has been claimed over the first, second, third and fourth emails in the chain (from Mr Russell and Mr Kulich) on the basis they are "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the "Legal services Project Twiggy Phase 2" SoW dated 31 August 2015, in respect of which Glenn Russell is the relevant ALP partner". Privilege has also been claimed on the basis they are "a copy of a communication created by PwC for the dominant purpose set out above (Propend)." 744 Privilege has been claimed over the fifth email in the chain (from Ms Vergueiro) on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the "Legal services Project Twiggy Phase 2" SoW dated 31 August 2015, in respect of which Glenn Russell is the relevant ALP partner." 745 Mr Russell gives evidence that this document concerned work done under Statement of Work No 6. It is Mr Russell's evidence that [redacted]. 746 PwC Australia submits that the reasonable inference is that this document was for the dominant purpose of Mr Russell providing his legal advice in relation to Project Twiggy Phase 2. 747 In my view, the latest email in the chain in this document is privileged. It records communications made for the dominant purpose of Mr Russell providing advice to JBS Australia in relation to legal matters, [redacted] to Project Twiggy Phase 2. The earlier emails in the email chain are also communications made for the dominant purpose of the giving or receiving of legal advice, for the same reason.

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A47 - PWC.010.003587 748 This document is chain of emails dated between 25 November 2015 and 3 December 2015 between personnel at PwC Australia and JBS Australia regarding FIRB approval in relation to [redacted]. The chain commences with emails between Mr Fuller (PwC Australia - NLP) and Mr Sinokula and Mr Marinho (JBS Australia) regarding the FIRB applications. The chain then includes internal emails between Mr Russell (PwC Australia - ALP), Mr Wogan (PwC Australia - ALP), Mr Wheeler (PwC Australia - ALP) and Mr Fuller regarding the same issue, including a note prepared by Mr Wheeler relating to [redacted]. Mr Fuller then forwards the entire chain to Mr Denovan (PwC Australia - NLP). 749 Privilege has been claimed over the whole of the document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". 750 Mr Russell gives evidence that this document involved work performed under Statement of Work No 7. It is Mr Russell's evidence that the outcome of the FIRB application was relevant to the implementation of the GRAP, and that the application was being handled by Mr Wogan and Mr Wheeler. 751 PwC Australia submits that this document is part of a continuum of communications between ALPs at PwC Australia (Mr Wheeler, Mr Wogan and Mr Russell) and those assisting Mr Russell (Mr Fuller and Mr Denovan) in relation to the status of the transaction on which the ALPs were advising. It contends that the reasonable inference is that the email was for the dominant purpose of Mr Russell (and/or Mr Wheeler and Mr Wogan) providing legal advice. 752 The JBS Parties submit that this document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. 753 In my view, this document is privileged. Statement of Work No 7 provides for the provision of corporate legal services, [redacted]. The advice contained in this document is concerned with corporate legal issues as contemplated by the Statement of Work. That advice was being given by ALPs at PwC Australia (in this case, Mr Wheeler, Mr Wogan and Mr Russell). It follows that this document records communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia.

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A34 - PWC.020.035462 755 This document is an email chain commencing with an email from Mr Cox (PwC USA) to many personnel at JBS SA, JBS USA, JBS Australia, PwC USA, PwC Ireland, PwC UK, PwC Luxembourg and PwC Australia (including Mr Russell) dated 4 December 2015 regarding changes that had been made to the GRAP step plan. The subject line of the email states "JBS GRAP - Updated Deck and Timing Document". The second email in the chain is from Mr Stewart (PwC Australia - NLP) to Mr Dunn (PwC Australia - NLP) and Mr Ali (PwC Australia - ALP) dated 7 December 2015, forwarding the previous email. The third email in the chain is from Mr Ali to Emily Low (PwC Australia - NLP) dated 9 December 2015, forwarding the previous email. The second and third emails do not contain any text and do not indicate the reason for forwarding the previous email. Attached to each of the emails is an Excel spreadsheet prepared by PwC USA which comprises the latest iteration of the GRAP step plan (Document 91). The Excel document name indicates the date of the spreadsheet is 3 December 2015. At the top of the spreadsheet, there is a heading indicating that it is a draft as at 2 December 2015. 756 Privilege has been claimed over the whole of Documents 90 and 91 on the basis that they are a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice" and an attachment to an email "which communicated confidential legal advice, or a request for confidential legal advice, between a lawyer and a client, and the attachment was relevant to the seeking or the provision of that legal advice". 757 Mr Russell gives evidence on Documents 90 and 91 at paragraphs 350-353 of his affidavit. His evidence is that this email chain concerns work done pursuant to Statement of Work No 7. It is Mr Russell's evidence that the GRAP step plan summarised steps on which he was providing Australian tax advice and which he expected to address in his final tax opinions on the GRAP "and was fundamental to that advice". Mr Russell states that, although he does not recall receiving this document, he carefully read documents of this kind and considered whether they had any Australian tax implications. Mr Russell states that Mr Stewart would often undertake a first review of such documents (sometimes with assistance from more junior staff) and then discuss them with Mr Russell. 758 PwC Australia submits that, in light of what Mr Russell says about the roles of Mr Stewart, Mr Ali and Ms Low, it is reasonable to infer that the email was forwarded in the way it was as part of the delegation of work to undertake an initial analysis and prepare comments on the updated step plan. It contends that the reasonable inference is that Documents 90 and 91 (comprising the email chain and attachment) were for the dominant purpose of Mr Russell providing his legal advice in respect of the GRAP. 759 The JBS Parties submit that Documents 90 and 91 form part of a "continuum of communications with external law firms directly related to their engagement to provide legal advice to JBS parties". 760 In my view, Documents 90 and 91 are not privileged. The communications comprise each of the emails in the email chain and the attached step plan. In substance, the step plan constitutes advice provided by PwC USA on the steps in the GRAP. In circumstances where that advice was not given by lawyers, I would characterise the advice in the step plan as non-legal advice. 761 As noted above, PwC Australia submits that the email was forwarded in the way it was as part of the delegation of work to undertake an initial analysis and prepare comments on the updated step plan, and that Documents 90 and 91 were for the dominant purpose of Mr Russell providing his legal advice in respect of the GRAP. The contention appears to rely, at least in part, on the authorities concerning third parties discussed above. The contention seems to be that the personnel at PwC USA who prepared the step plan were third party experts providing an input to enable Mr Russell to provide legal advice to his client (JBS). The contention also seems to be that the step plan was forwarded to NLPs and ALPs at PwC Australia so that they could assist Mr Russell to prepare legal advice. I do not accept these submissions. While I accept that Mr Russell needed to understand the step plan in order to provide his Australian tax advice, it does not follow that the dominant purpose of the communications was to enable Mr Russell to provide legal advice to his client. Based on my review of the email chain and the step plan, I consider there to have been multiple purposes for the communications, including informing members of the PwC Australia team (whether NLPs or ALPs) of the latest iteration of the step plan to assist in the provision of non-legal advice to the client in relation to GRAP. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 762 As noted above, the JBS Parties submit that Documents 90 and 91 form part of a "continuum of communications with external law firms directly related to their engagement to provide legal advice to JBS parties". This does not appear to be apposite to Documents 90 and 91. In any event, for the reasons set out above, the dominant purpose test is not satisfied. 763 I therefore conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, Documents 90 and 91 are not privileged.

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A40 - PWC.003.005572 766 This document is a chain of emails dated between 15 and 16 December 2015 between personnel at PwC Australia, PwC Brazil, and PwC USA. The first is an email from Mr Stewart (PwC Australia - NLP) in relation to an issue that had been identified with the proposed steps in the GRAP. The issue was that certain steps in Australia gave rise to a potential foreign exchange gain and it was expected this may give rise to a liability to tax in Brazil under the Brazil CFC Rules. The second is an email from Mr Fuller (PwC Australia - NLP) asking whether JBS will "actually account for fx movements through the books". The third is an email from Mr Moss (PwC Australia - NLP) stating "this is not an area of judgement for accounting unfortunately this is a bright line concept. We had proposed three accounting solutions to this structural change … None seemed to be palatable to other works streams". The remainder of the chain is emails from Mr Fuller, Mr Moss and Ms Vergueiro (PwC Brazil) regarding the same issue. The subject line of the emails is "Confidential and subject to legal professional privilege - AU Finco Accounting FX Issue". Mr Russell (PwC Australia - ALP) was a recipient of each of the emails. The first email in the chain is signed "Pete, Glenn and Chris". This appears to be a reference to Peter Dunn (PwC Australia - NLP), Glenn Russell and Chris Stewart. 767 Privilege has been claimed over the whole of the document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". 768 Mr Russell gives evidence about this document at paragraphs 354-364 of his affidavit. His evidence is that he discussed the issue discussed in the first email in the email chain with Mr Stewart, and possibly with Mr Dunn, before Mr Stewart sent the first email in the chain. Mr Russell states that, [redacted] and in the email chain Mr Moss provided comments on the accounting implications of the issue. Mr Russell states that, in the subsequent emails in the chain, Ms Vergueiro of PwC Brazil responded to a particular question from Mr Fuller in relation to the operation of the Brazilian CFC Rules. Mr Russell states that, in order to give his advice on the GRAP, he needed to understand potential adverse Brazilian tax consequences arising from the GRAP, so it was important to have such confirmation from PwC Brazil in considering how the issue could be addressed. He also states that the document involves work in respect of the GRAP under Statement of Work No 7. I note that Mr Russell does not suggest in his evidence that he authored the first email in the email chain. 769 Mr Alvares gives evidence in relation to this document at paragraphs 78-81 of his affidavit. Some of this evidence has been referred to above, in the context of Document 82. In addition, Mr Alvares states that: he was particularly concerned about the possibility of a foreign exchange gain occurring as a result of any of the proposed GRAP steps; in mid-December, he became aware from Mr Russell that a problem had arisen concerning some of the proposed GRAP steps; this email chain reveals particular transactions proposed as part of the then current draft GRAP step plan (that was being recommended to him by PwC); the email chain also reveals the subject of discussion he had with the PwC Australia team and JBS Brazil at this time about the problem of foreign exchange gains and the advice to fix them. 770 PwC Australia submits that this is an instance of Mr Fuller undertaking his role of obtaining necessary input from PwC Brazil in relation to the Brazilian tax implications of the structure in order for Mr Russell to give his legal advice, "effectively as Mr Russell's agent". It contends that it is reasonable to infer that this document was for the dominant purpose of obtaining input from PwC Brazil which was required for Mr Russell to provide his legal advice. 771 The JBS Parties submit that this document comprises communications that reveal advice given or under consideration by PwC Australia. 772 In my view, this document is not privileged. In substance, the emails in the email chain contain advice given by Mr Stewart (and possibly Mr Dunn) to the effect that certain steps in Australia gave rise to a potential foreign exchange gain, and advice from Ms Vergueiro as to whether this would give rise to a liability to tax in Brazil under the Brazilian CFC Rules. As Mr Stewart, Mr Dunn and Ms Vergueiro were not lawyers, I would characterise their advice as non-legal advice. 773 As noted above, PwC Australia submits that Mr Fuller was effectively acting as the agent of Mr Russell in obtaining information from PwC Brazil that Mr Russell required for the purpose of providing his legal advice. This submission seems to rely on the authorities concerning third parties that have been discussed above. The contention seems to be that Ms Vergueiro of PwC Brazil was a third party expert providing an input to enable Mr Russell to provide legal advice to his client (JBS). I do not accept these submissions. I will assume for present purposes that Mr Fuller was acting as Mr Russell's agent. While I accept that Mr Russell needed to understand the foreign tax issues in order to provide his Australian tax advice, it does not follow that the dominant purpose of the communications was to enable Mr Russell to provide legal advice to his client. Based on my review of the document, I consider there to have been multiple purposes for the communications, including the giving of (non-legal) advice by Mr Stewart, Mr Dunn and Ms Vergueiro regarding foreign exchange issue to assist in the development of the most appropriate GRAP steps. This purpose was of at least equal weight to a purpose of giving or receiving legal advice. 774 As noted above, the JBS Parties submit that the document comprises communications that reveal advice given or under consideration by PwC Australia. However, for the communications to be privileged on this basis, it is necessary for the communications to be made for the dominant purpose of giving or receiving legal advice. For the reasons indicated above, I consider there to have been multiple purposes for these communications, such that the dominant purpose test is not satisfied. 775 I therefore conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, the document is not privileged.

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A42 - PWC.008.003015 776 This document is a chain of emails dated between 16 and 18 December 2015 between Mr Dunn (PwC Australia - NLP), Mr Stewart (PwC Australia - NLP) and Mr Kulich (PwC USA) regarding potential foreign exchange gains resulting from the proposed GRAP steps. This is the same issue discussed in Document 92. The chain includes three emails from Mr Dunn on 16 December 2015 containing a section discussing a "suggested solution" to the issue. The chain includes an email from Mr Stewart sent on 17 December 2015 regarding "AHR Note Funding Terms" (as referred to in the subject line of the email). The email commences by stating that "we have worked up a position on the AHR Note / Temporary Note and discussed this with JBS Australia who have agreed to our suggested approach". The email chain also includes further emails from Mr Kulich in relation to setting up a call. Mr Russell (PwC Australia - ALP) is copied on the emails, as are other personnel from PwC Australia, and personnel from PwC USA and PwC Luxembourg. The email subject lines of some of the emails include "Confidential and subject to legal professional privilege". The attachment to the latest email is an Excel worksheet (Document 94). 777 Privilege was originally claimed over the whole of Documents 93 and 94 on the basis that they are a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice" and an attachment to an email "which communicated confidential legal advice, or a request for confidential legal advice, between a lawyer and a client, and the attachment was relevant to the seeking or the provision of that legal advice". However, parts of Document 93 have now been released to the Commissioner. The parts of Document 93 over which privilege is still claimed are marked with the word "Privilege" in the copy provided to the Court. These parts comprise the substantive emails from Mr Dunn and the substantive email from Mr Stewart. It appears that Document 94 has not been released to the Commissioner (as it does not appear in the annexure to Ms Emery's affidavit dated 2 September 2021, which contains copies of the partially released documents). Thus, I proceed on the basis that the privilege claim is maintained for Document 94. 778 Mr Russell gives evidence in relation to Documents 93 and 94 at paragraphs 354-364 of his affidavit. It is Mr Russell's evidence that he discussed the "suggested solution" with Mr Dunn and Mr Stewart before Mr Dunn sent his email of 8.28 pm on 16 December 2015, and that he considered that the solution could be appropriately adopted having regard to Australian tax considerations. Mr Russell states that he also considered that this solution would have the tax consequences as a matter of Australian taxation law as set out under the sentence "The Australian tax consequences" in that email. Mr Russell also states that he gave consideration to a further potential tax issue that would arise from that proposed solution, and discussed this with Mr Ali and asked him to consider it. Mr Russell states that [redacted] (Document 116). Mr Russell states that: as with all aspects of the GRAP, he considered the Australian tax implications prior to the documentation being executed from about 18 December 2015; it was necessary for him to do this because he was aware he would be providing an opinion in due course and, once the steps were implemented, it was very unlikely they could be changed; he therefore needed to have determined his views prior to the execution date of the GRAP steps. Mr Russell states that: the email from Mr Stewart in the email chain suggested the approach to the revision to steps identified in that email; Mr Russell considered and discussed the approach in detail with Mr Stewart; the content as to the approach in Mr Stewart's email reflected Mr Russell's discussions and what he settled on as an approach; the email sought the input of other jurisdictions; Mr Russell does not recall specifically asking Mr Stewart to seek that input but considers it likely that he (Mr Russell) did so, as that would have been consistent with his practice at the time. Mr Russell states that: it was necessary for him to understand any potential foreign tax implications for the advice he was giving to JBS in Australia; following Mr Stewart's email, he (Mr Russell) continued to consider and undertake further analysis on the points raised in his email; [redacted] (Document 116). 779 Mr Alvares gives evidence about Documents 93 and 94 at paragraphs 78-81 of his affidavit. This evidence has been summarised above in the context of Documents 82 and 92. 780 PwC Australia submits that the purpose of the emails from Mr Dunn and Mr Stewart was to "provide advice identifying a problem arising out of the proposed GRAP steps, together with a possible solution, and to obtain input from the overseas PwC firms to which it was sent, for the purpose of Mr Russell's advice". It contends that Mr Dunn and Mr Stewart were "effectively acting as the agent of Mr Russell to obtain that input" and that the foreign PwC firms were "effectively acting as the agent of JBS in receiving the advice and providing the input". It contends that the reasonable inference is that Documents 93 and 94 (comprising the email and attachment) was for the dominant purpose of Mr Russell providing his legal advice in relation to the GRAP. 781 The JBS Parties submit that these documents comprise communications that reveal advice given or under consideration by PwC Australia. 782 In my view, the parts of Document 93 marked with the word "Privilege" in the copy provided to the Court, and Document 94, are not privileged. The communications comprise each of the emails in the email chain. In the case of the latest email, this includes the attachment. In substance, the emails in the email chain contain advice given by Mr Dunn regarding the foreign exchange issue that had arisen, and advice by Mr Stewart concerning funding terms in relation to the GRAP. In circumstances where both Mr Dunn and Mr Stewart were not lawyers, and given the subject-matter of the emails, I would characterise their advice as non-legal advice. There is little evidence about the attachment to the email chain. It appears to contain non-legal advice. 783 As noted above, PwC Australia submits that Mr Dunn and Mr Stewart were "effectively acting as the agent of Mr Russell" to obtain input from the foreign PwC firms to which their emails were sent, and that the foreign PwC firms were "effectively acting as the agent of JBS in receiving the advice and providing the input", and that the communications were for the dominant purpose of Mr Russell providing his legal advice in relation to the GRAP. This submission seems to rely on the authorities concerning agents of the client that have been discussed above. The contention seems to be that the personnel at the relevant overseas PwC firms were agents of JBS providing an input or instructions to enable Mr Russell to provide legal advice to his client (JBS). I do not accept these submissions. I will assume for present purposes that the overseas PwC firms were acting as agents of JBS. While I accept that Mr Russell needed to obtain the input or instructions from the overseas PwC firms in order to provide his Australian tax advice, it does not follow that the dominant purpose of the communications was to enable Mr Russell to provide legal advice to his client. Based on my review of the document, I consider there to have been multiple purposes for the communications, including (for the emails from Mr Dunn) the giving of (non-legal) advice by Mr Dunn regarding the foreign exchange issue and (for the email from Mr Stewart) the giving of (non-legal) advice by Mr Stewart regarding the funding issue, to assist in the development of the most appropriate GRAP steps. In each case, this purpose was of at least equal weight to a purpose of giving or receiving legal advice. 784 As noted above, the JBS Parties submit that the document comprises communications that reveal advice given or under consideration by PwC Australia. However, for the communications to be privileged on this basis, it is necessary for the communications to be made for the dominant purpose of giving or receiving legal advice. For the reasons indicated above, I consider there to have been multiple purposes for these communications, such that the dominant purpose test is not satisfied. 785 I therefore conclude that the communications were not made for the dominant purpose of the giving or receiving of legal advice. Accordingly, the parts of Document 93 marked "Privilege" in the copy provided to the Court, and Document 94, are not privileged.

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A16 - PWC.003.006935 788 This document is an email chain dated between 18 December 2015 and 20 December 2015 between Jon Cox (PwC USA), Sarah Adams and David Roberts (PwC UK) and Mr Russell (PwC Australia - ALP) (copied to others at PwC USA, PwC UK, PwC Australia, PwC Brazil and JBS Brazil) regarding the [redacted]. The first email (from Mr Cox) raises the possibility of [redacted]. The second email (from Ms Adams) states that the [redacted]. The third email (from Mr Roberts) notes that the [redacted]. The fourth email in the chain (from Mr Cox) states that [redacted]. The fifth email in the chain (from Mr Russell) states that [redacted]. The sixth email (from Mr Roberts) is a response to Mr Russell's email. The seventh email (from Mr Russell) (which blind copies Benn Wogan (PwC Australia- ALP)) states that [redacted]. 789 Privilege has been claimed over the whole of the document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". 790 Mr Russell gives evidence that the document involves work in respect of the GRAP under Statement of Work No 7. Mr Russell gives evidence that the emails from him in the email chain (being the fifth and seventh emails) related to the timing of the execution of steps as part of the GRAP. 791 PwC Australia submits that the reasonable inference is that this document was for the dominant purpose of Mr Russell providing legal advice in response to a request from JBS (via its agent PwC USA) in relation to the GRAP and/or the provision of legal services by Mr Wogan. 792 The JBS Parties submit that this document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. 793 The Amici Curiae submit that this document is not privileged. They submit that: while Statement of Work No 7 does provide for (among other things) the provision of corporate legal services, the email chain does not contain legal advice; rather, Mr Russell's contribution to the email chain is concerned with [redacted]; while the seventh email in the chain (from Mr Russell) does blind copy Mr Wogan, an ALP, who Mr Russell says was responsible for arranging the execution of the legal documents for the GRAP by JBS Australia, and it is likely that one purpose of Mr Russell's communication was to keep Mr Wogan informed [redacted], this was not the dominant purpose of the communication. It follows, the Amici Curiae submit, that this document does not record communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers from PwC Australia. 794 In my view, this document is privileged. The communications comprise the emails in the email chain. Mr Russell, an ALP, authored two of the emails. In those emails, he addresses an issue that had emerged regarding [redacted], a matter in respect of which he was providing legal services to JBS. Focussing on the latest email in the chain, having regard to the document as a whole and the evidence of Mr Russell, I consider the dominant purpose of the communication to be the giving of legal advice or legal services by Mr Russell. Further, in relation to the earlier emails in the chain, I consider these to be copy documents and that they were provided by Mr Russell for the dominant purpose of giving legal advice or legal services. They are, therefore, privileged.

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A17 - PWC.003.006938 795 This document is, apart from the latest email in the chain, the same email chain as Document 95. The latest email in Document 96 is an email from Mr Russell (PwC Australia - ALP) to Benn Wogan (PwC Australia - ALP), stating only [redacted]. 796 Privilege has been claimed over the whole of this document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". 797 Mr Russell states that he forwarded the email chain (Document 95) to Mr Wogan, who was responsible for arranging the execution of the legal documents for the GRAP by JBS Australia. 798 PwC Australia contends that this document is part of a continuum of correspondence between ALPs at PwC Australia for the purpose of providing legal advice to JBS, and that the reasonable inference is that this document was for the dominant purpose of Mr Russell and/or Mr Wogan providing legal services to JBS in relation to the GRAP. 799 The JBS Parties submit that this document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. 800 In my view, this document is privileged. Statement of Work No 7 provides for (among other things) the provision of corporate legal services, [redacted]. Having regard to the document as a whole, and the evidence of Mr Russell, I find that Mr Russell forwarded the email chain to Mr Wogan (who was responsible for the preparation of legal documentation to effect the GRAP) for the dominant purpose of Mr Wogan (together with Mr Russell) providing legal services to JBS (namely, the preparation and execution of necessary legal documents). It follows that the latest email records a communication made for the dominant purpose of the giving or obtaining of legal advice. In relation to the earlier emails in the chain, I consider these to be copy documents and that they were provided for the dominant purpose of the provision of legal services. They are therefore privileged.

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A10 - PWC.008.003328 801 This document is an email dated 24 December 2015 from Mr Russell (PwC Australia - ALP) to Ms Garland (JBS USA), Mr Alvares (JBS Australia) and Mr Kulich (PwC USA) (copied to various PwC Australia personnel) attaching a draft memorandum relating to "[redacted]". The email has the subject line "Confidential and subject to legal professional privilege". A note to the same effect appears in the body of the email. Attached to the email is a document comprising a covering letter dated 24 December 2015 and a memorandum of the same date (Document 98). The letter is from Mr Russell to Mr Alvares and states that it attaches "draft legal advice" in relation to "[redacted]". The memorandum that forms part of the same document is from Mr Fuller (PwC Australia - NLP), Mr Russell and Mr Dunn (PwC Australia - NLP) to Mr Alvares and Ms Garland, with the subject "[Redacted]". 802 Privilege has been claimed over the whole of Documents 97 and 98 on the basis that they are a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice" and an attachment to an email "which communicated confidential legal advice, or a request for confidential legal advice, between a lawyer and a client, and the attachment was relevant to the seeking or the provision of that legal advice". 803 Mr Russell gives evidence that Mr Denovan prepared the draft memorandum at his request, and that he reviewed it, approved its contents, and confirmed it recorded his views. Mr Russell states that he does not recall Mr Fuller or Mr Dunn having any input into the memorandum. 804 PwC Australia submits that the reasonable inference is that Documents 97 and 98 were for the dominant purpose of Mr Russell providing legal advice to JBS. 805 The JBS Parties submit that Documents 97 and 98 fall within the category of legal advice given by lawyers (including Mr Russell) and within the category of "communications that reveal advice given or under consideration by PwC". 806 The Amici Curiae submit that Documents 97 and 98 are not privileged. They submit that: while Statement of Work No 7 does provide for (among other things) the provision of corporate legal services, the dominant purpose for the provision of this email is not a privileged purpose; rather, the subject of the memorandum is expressly stated to refer to the [redacted]; the advice was being given by NLPs at PwC Australia with the relevant subject matter expertise (in this case, Mr Denovan); while Mr Russell gives evidence that the memorandum reflected his views, advice sought for a commercial purpose does not become legal advice simply because it is discussed with, or sent from, a lawyer. It follows, the Amici Curiae submit, that Documents 97 and 98 do not record communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers from PwC Australia. 807 In my view, Documents 97 and 98 are privileged. The communication comprises the email and the attachment. [Redacted]. In circumstances where the advice was given by Mr Russell, an ALP, and concerned matters of Australian taxation law, I would characterise the advice as legal advice. The fact that the memorandum was drafted by Mr Denovan does not affect that analysis, in circumstances where the draft was prepared at Mr Russell's request, Mr Russell substantively reviewed the draft, and adopted it as his own (by providing it to the client under his name). Having regard to the documents as a whole, and the evidence of Mr Russell, I consider that the dominant purpose of the communication was the giving of legal advice. Accordingly, Documents 97 and 98 are privileged.

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R40 - PWC.004.003831 811 This document comprises a covering letter dated 20 May 2015 and Appendices A, B, C and D. The letter is from Mr Russell (PwC Australia - ALP) to Mr Alvares (JBS Australia) headed "[Redacted]". The letter is marked "Private & Confidential" and [redacted]: [Redacted]. [Redacted]. [Redacted]. ([Redacted].) 812 [Redacted]. 813 Privilege has been claimed over the whole of the document on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Global Restructure Project - Australian Income Tax and Stamp Duty Legal Advice' SoW dated 15 January 2015, in respect of which Glenn Russell is the relevant ALP partner". 814 Mr Russell gives evidence that this was his final advice in respect of the tax implications arising from the deconsolidation of the JBS Australia MEC Group. He states that he prepared this advice with the assistance of Mr Stewart (an NLP) and Mr Ali (an ALP) and that his opinion of the Australian tax issues was reflected in the advice. It is Mr Russell's evidence that he reviewed and provided feedback on several drafts of the advice and confirmed that the content recorded his views. 815 PwC Australia contends that the dominant purpose of this document is "clearly" the provision of legal advice to JBS Australia by Mr Russell. 816 The JBS Parties submit that this document falls within the category of legal advice given by lawyers (including Mr Russell). 817 The Amici Curiae submit that this document is not privileged. They submit that: while the Australian tax implications arising from [redacted] may have depended on, among other things, the application of Australian taxation legislation, the dominant purpose of the provision of this advice was, [redacted]; as stated in Statement of Work No 4, those calculations would "result in the quantification of any tax payable as a result of [redacted]"; this was a commercial purpose, not a privileged purpose; the advice was provided by NLPs at PwC Australia (in this case, Mr Stewart) and ALPs acting other than their capacity as lawyers (in this case, Mr Russell and Mr Ali). It follows, the Amici Curiae submit, that this document does not record communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia. 818 In my view, this document is privileged. The communication comprises the covering letter and Appendices A, B, C and D. The advice concerns the tax implications arising from [redacted]. Section 4 of the advice contains a consideration of the provisions of the ITAA 1997 and their application to the facts of the case. Section 5 of the advice, [redacted], sets out a series of steps that involve the application of provisions of the ITAA 1997 to the facts of the case. In circumstances where the advice was given by Mr Russell, an ALP, and concerned matters of Australian taxation law, I would characterise the advice as legal advice. The fact that the advice was prepared with the assistance of Mr Stewart (an NLP) and Mr Ali (an ALP) does not affect that analysis, in circumstances where the draft was prepared at Mr Russell's request, Mr Russell substantively reviewed the draft, and adopted it as his own (by providing it to the client under his name). Having regard to the document as a whole, and the evidence of Mr Russell, I consider that the dominant purpose of the communication was the giving of legal advice. Accordingly, the document is privileged.

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A45 - PWC.008.003972 819 This document is a chain of emails dated between 12 and 30 January 2016 between personnel at PwC Australia and PwC Ireland (copied to personnel from PwC USA and PwC Brazil) regarding [redacted]. As noted below, privilege is now only claimed in respect of the last four emails in the email chain. Those emails were as follows: (a) an email from Harry Harrison (PwC Ireland) dated 16 January 2016 with the subject line "[Redacted]" - this email sets out [redacted]; (b) an email from Mr Russell (PwC Australia - ALP) dated 27 January 2016 with the subject line "[Redacted]"; (c) an email from Mr Kulich (PwC USA) dated 29 January 2016 regarding [redacted]; and (d) an email from Mr Fuller (PwC Australia - NLP) dated 30 January 2016, also regarding [redacted]. 820 Privilege was originally claimed over the whole of the document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". However, parts of this document have now been released to the Commissioner. The parts over which the privilege claim is maintained are marked with the word "Privilege" in the copy of the documents provided to the Court. These parts comprise the four emails referred to above. 821 Mr Russell describes the issue discussed in the emails as a "[redacted]" under Statement of Work No 7 and says that he was asked to advise on associated taxation issues. Mr Russell states that he was asked by a representative of JBS to advise on [redacted] and that he sought input from PwC Ireland, PwC Luxembourg, PwC Brazil and PwC US so he could provide his advice. It is Mr Russell's evidence that the section of his email providing the information [redacted] was prepared by Mr Wogan at his request and copied into his email. 822 PwC Australia submits that the reasonable inference is that this document is for the dominant purpose of Mr Russell providing legal advice to JBS. 823 The JBS Parties submit that this document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. 824 The Amici Curiae's submissions relate to the document as a whole (not just the part in respect of which the privilege claim is maintained). The Amici Curiae submit that the document as a whole is not privileged, but that parts of the document should be redacted on the basis that they record legal advice provided by Irish legal counsel and PwC Australia in relation to the proposed transaction. Those sections are the email from Mr Harrison dated 16 January 2016, and the part of the email from Mr Russell dated 27 January 2016 commencing with the sentence "[Redacted]" to the end of that email (i.e., the portion drafted by Mr Wogan). This comprises most of Mr Russell's email. 825 In my view, the parts of this document marked with the word "Privilege" in the copy of the documents provided to the Court are privileged. The communications in issue are the last four emails in the chain. In substance, the email from Mr Russell, an ALP, contains legal advice concerning [redacted]. The substantive part of Mr Russell's email was prepared by Mr Wogan, an ALP. Having regard to the character of Mr Russell's email, I consider that the communication was made for the dominant purpose of the giving or receiving of legal advice. Further, disclosure of the parts of the document over which privilege is claimed would tend to reveal the substance or content of legal advice, namely the advice of Irish legal counsel and the advice of Mr Russell and Mr Wogan. Accordingly, the parts of the document marked with the word "Privilege" in the copy of the documents provided to the Court are privileged.

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A27 - PWC.005.001838 826 This document is an email chain comprising three emails (although one of these incorporates another, earlier email): (a) The first email in the chain is from Mr Veiga (JBS Australia) to Mr Foo (PwC Australia - NLP), copied to Mr Moss (PwC Australia - NLP) and Mr Marinho (JBS Australia), dated 1 February 2016. The email contains a request that Mr Foo "please update GRAP accounting advice to a Final version and send to us". (b) The second email in the chain is from Mr Foo and forwards Mr Veiga's email. (c) The third email in the chain is from Mr Foo to Mr Ratna (PwC Australia - NLP) and Mr Moss, copied to Mr Scheibli (PwC Australia - NLP), dated 1 February 2016. At the beginning of this email, Mr Foo states: "Both Michael [Scheibli] and I have in our records that the latest sent to the client was the version below". He then sets out a copy of Mr Russell's email dated 29 November 2015 relating to the accounting implications of the GRAP steps (the email that is Document 82, discussed above). After setting out that email, Mr Foo continues: "If there is a newer version that has been shared with the client, please can you send to Michael and me …". 827 No ALPs are party to these emails. Attached to the latest email in the chain is a document comprising a cover letter from Mr Russell to Mr Alvares dated 27 November 2015 and an advice headed "Accounting Topic Discussion Paper" relating to GRAP on the topic "Accounting Considerations for Organisation Structure Changes for Australian JBS Group Entities" (Document 103). This appears to be the same document as Document 83, discussed above. 828 Privilege has been claimed over the whole of Documents 102 and 103 on the basis that they are a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice" and an attachment to an email "which communicated confidential legal advice, or a request for confidential legal advice, between a lawyer and a client, and the attachment was relevant to the seeking or the provision of that legal advice". 829 Mr Russell gives evidence about Documents 102 and 103 at paragraph 376 of his affidavit. He refers back to his earlier evidence regarding Documents 60, 61, 82 and 83. That evidence has been summarised above, in the context of considering Documents 60 and 82. 830 Mr Alvares gives evidence in relation to Documents 102 and 103 at paragraphs 78-81 of his affidavit. That evidence has been summarised above in the context of considering Documents 60 and 82. 831 In relation to Documents 102 and 103, PwC Australia relies on its submissions in relation to Documents 82 and 83. 832 The JBS Parties submit that Documents 102 and 103 comprise communications that reveal advice given or under consideration by PwC Australia. 833 In my view, for substantially the same reasons as for Documents 82 and 83, Documents 102 and 103 are not privileged. Insofar as Document 102 contains additional emails that are not part of Document 82, these additional emails are exchanged between the client and NLPs, or between NLPs. Assuming that Documents 82 and 83 are not privileged, these additional emails do not provide any basis to consider that Documents 102 and 103 are privileged.

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A8 - PWC.008.004311 836 This document is an email chain comprising three emails dated between 18 and 25 February 2016. The first email is from Mr Kulich (PwC USA) to Durval Portela (PwC Brazil) and Alvaro Pereira (PwC Brazil) (copied to other PwC personnel) regarding a draft "Red Flags Report" in relation to Project Chelsea. The second email in the chain is from Mr Russell to Mr Kulich and Mr Pereira. It states: "[Redacted]". The third email is from Mr Kulich to Mr Russell and thanks him for his email. 837 Privilege has been claimed over the whole of the document on the basis that it is a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice". 838 Mr Russell gives evidence that his email, the text of which is set out above, identified a further Australian legal issue that was not included in the Australian comments in the Red Flags Report. 839 PwC Australia submits that it is reasonable to infer that the dominant purpose of this document was Mr Russell identifying, in his capacity as a legal adviser to JBS, a matter of Australian law he considered they should prudently take into account in relation to the transaction, to be relayed to JBS by Mr Kulich. It contends that Mr Kulich was "effectively the agent of JBS" in relaying Mr Russell's advice. 840 The JBS Parties submit that this document forms part of a "continuum of communications" between PwC Australia employees and PwC employees in other jurisdictions that are directly related to the performance by Mr Russell of his professional obligations under the Statements of Work. 841 In my view, this document is privileged. Statement of Work No 7 provides for (among other things) the provision of corporate legal services, [redacted]. This email chain records an exchange between Mr Russell (an ALP), Mr Kulich (PwC USA) and Mr Pereira (PwC Brazil) in which Mr Russell asks Mr Kulich and Mr Pereira to relay legal advice to the client ([redacted]) and Mr Kulich thanks Mr Russell for that information. I note that the Commissioner contends that Mr Russell could not provide services in relation to [redacted] in the capacity of a lawyer because his practising certificate required that "he practice only in the area of taxation law". However, even if that restriction applied, this is not relevant to whether the dominant purpose of the communication was the provision of legal advice by Mr Russell acting in his capacity as a lawyer.

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R41 - PWC.008.004393 842 This document is the final advice provided in relation to Project Twiggy Phase 2. It comprises: (a) a cover letter dated 2 March 2016 from Mr Russell (PwC Australia - ALP) to Mr Alvares (JBS Australia) headed "[Redacted]"; and (b) a letter dated 30 September 2015 from Mr Russell to Mr Alvares headed "[Redacted]", followed by a detailed advice on Australian income tax, stamp duty and accounting implications of Project Twiggy Phase 2. This part of the document appears to be an updated version of Document 73, discussed above (despite having an earlier date). 843 Both the cover letter dated 2 March 2016 and the letter dated 30 September 2015 are marked "Confidential and subject to legal professional privilege". 844 The cover letter dated 2 March 2016 describes the attached advice as "[redacted]". It states that the advice could [redacted]. 845 The letter dated 30 September 2015 states that the advice is in relation to "[redacted] by an election to form an Australian income tax consolidated group". The letter states that the advice also includes [redacted]. The letter states that the advice has been prepared in accordance with the scope of work outlined in the Statement of Work dated 31 August 2015. 846 [Redacted]: [Redacted]: • [Redacted]. • [Redacted]. • [Redacted]. • [Redacted]. • [Redacted]. • [Redacted]. • [Redacted]. • [Redacted]. 847 Privilege has been claimed over the whole of the document on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Legal services Project Twiggy Phase 2' SoW dated 31 August 2015, in respect of which Glenn Russell is the relevant ALP partner". 848 Mr Russell gives evidence in relation to Document 105 at paragraph 379 of his affidavit (see also paragraph 89 of his affidavit). His evidence is that his usual practice in preparing detailed advices was to discuss the contents of the advice before asking those assisting him to prepare the first draft, provide instructions and comments as to the content of the advice, draft substantive aspects of the advice where necessary and re-draft text provided by others, and satisfy himself that the advice reflected his views and opinions before it was finalised. He states that it was not his practice to undertake the first substantial drafting exercise and that either Mr Stewart, Mr Ali, Brendan Campbell or Ms Low took the lead on the first substantial drafting exercise for the advices PwC Australia prepared for members of the JBS Global Group. It is Mr Russell's evidence that he followed his usual practice in relation to Document 105. 849 PwC Australia contend that the content of this advice is "obviously and inherently legal" and that its dominant purpose is "clearly the provision of legal advice" by Mr Russell to JBS. 850 The JBS Parties submit that this document comprises legal advice given by lawyers (including Mr Russell). 851 The Amici Curiae's submissions in relation to Document 105 have been set out above. For ease of reference, their submissions in relation to Document 105 are set out again here. In summary, the Amici Curiae submit that the advice generally is not privileged, but particular sections of the advice are privileged. In relation to the advice generally, the Amici Curiae submit that, while the Australian income tax, stamp duty and accounting implications arising from [redacted], may have depended on, among other things, the application of Australian taxation legislation, the dominant purpose of the provision of this advice was not a privileged purpose. The Amici Curiae submit that the advice was provided for multiple purposes, as follows: (a) to confirm advice that had been given during the course of the project about desirable structuring and to inform the preparation and implementation of the Project Twiggy Phase 2 step plan by ensuring the most tax efficient course was adopted; (b) to create a record of the project for JBS Australia (noting that it was ultimately provided in March 2016, the project having completed in either November 2015 or January 2016); and (c) to be provided to KPMG Australia, for the purpose of completing the legal audit of the JBS Australia Group for the financial year ended 27 December 2015. 852 On that basis, the Amici Curiae submit that it cannot be said that that the most influential, or prevailing, purpose for the provision of the advice was a privileged purpose. The Amici Curiae submit that the advice was prepared by NLPs (including Mr Fuller, Mr Stewart and Mr Dunn) and ALPs acting in their capacity as both lawyers, and as tax and accounting experts (including Mr Russell). It follows, the Amici Curiae submit, that the document does not record communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia. 853 The Amici Curiae submit that, while the dominant purpose of the creation of the advice as a whole is not a privileged purpose, the sections of the document disclosing the legal advice provided to JBS Australia in relation to the [redacted] are privileged, as they record the substance of legal advice from PwC Australia to JBS Australia. The Amici Curiae identify those sections as follows: (a) [Redacted]. (b) [Redacted]. (c) [Redacted]. (d) [Redacted]. 854 In my view, parts of Document 105 are privileged, and parts of it are not privileged. The parts I consider to be privileged are: all of the document other than section 9 of the advice. The part that I consider to be not privileged is section 9 of the advice. 855 Although Document 105 is on its face a single communication, in substance it constitutes discrete communications on two topics: matters of Australian taxation law (including stamp duty); and accounting issues. It is therefore appropriate to consider each of these communications separately. 856 In relation to the parts of the document other than section 9 of the advice, in my view, these parts of the document are in substance advice about matters of Australian taxation law. The advice involves the expression of an opinion about the application of provisions of Australian taxation law to the facts of the transaction. In circumstances where the advice was given by Mr Russell, an ALP, to the client about matters of Australian taxation law, I would characterise the advice as legal advice. However, section 9 of the document is, in my view, of a different character. It concerns the accounting implications of the transaction. I have carefully considered this section of the document and do not consider it to constitute legal advice (whether as to taxation law or corporate law). Given its subject matter, and notwithstanding that the advice was given by Mr Russell, an ALP, to the client, I would characterise the advice in section 9 as non-legal advice. 857 Having regard to the content of the document and the evidence of Mr Russell, I consider that the document (other than section 9 of the advice) comprises a communication made for the dominant purpose of the giving of legal advice, namely legal advice given by Mr Russell, an ALP, to his client (JBS) regarding Project Twiggy Phase 2. For the reasons set out above, I would characterise the document (other than section 9) as legal advice. This analysis is not affected by the fact that NLPs had substantial input into the preparation of the advice (putting section 9 to one side). In circumstances where the advice was prepared at Mr Russell's direction, was substantively reviewed by Mr Russell, and was adopted by him as his own (with whatever changes he considered appropriate) by being sent to the client under his name, I consider that the advice (other than section 9) is substantively Mr Russell's advice. I note the Amici Curiae's submission that the communication was made for multiple purposes, including: (a) to confirm advice that had been given during the course of the project about desirable structuring and to inform the preparation and implementation of the Project Twiggy Phase 2 step plan by ensuring the most tax efficient course was adopted; (b) to create a record of the project for JBS Australia; and (c) to be provided to KPMG Australia, for the purpose of completing the legal audit of the JBS Australia Group for the financial year ended 27 December 2015. However, given the content of the document and the evidence of Mr Russell, I do not consider these to have been material purposes for the making of the communication. Accordingly, I conclude that the document (other than section 9) comprises a communication made for the dominant purpose of the giving of legal advice. 858 However, section 9 of the advice is of a different character. It concerns the accounting implications of the project. For the reasons set above, I consider the advice in section 9 to be non-legal advice. Accordingly, this part of the document does not constitute a communication made for the dominant purpose of the giving or receiving of legal advice. 859 Accordingly, I conclude that this document is partly privileged. The parts of the document other than section 9 are privileged, and section 9 is not privileged.

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R42 - PWC.007.003438 860 This document comprises: (a) a cover letter dated 2 March 2016 from Mr Russell (PwC Australia - ALP) to Mr Alvares (JBS Australia) with the heading "[Redacted]"; and (b) a letter dated 24 December 2015 from Mr Russell to Mr Alvares entitled "[Redacted]", followed by a detailed advice on that subject. 861 Both the cover letter dated 2 March 2016 and the letter dated 24 December 2015 are marked "Confidential and subject to legal professional privilege". 862 The cover letter dated 2 March 2016 describes the attached advice as "[redacted]". It states [redacted]. 863 The 24 December 2015 letter states that the advice had been prepared in accordance with the scope of work outlined in the Umbrella Engagement Agreement and the Statement of Work dated 11 September 2015 (being Statement of Work No 7), and relates to the application [redacted] which had completed on 24 December 2015. 864 Privilege has been claimed over the whole of the document on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Legal Services - Global Regional Alignment Project' SoW dated 11 September 2015, in respect of which Glenn Russell is the relevant ALP partner". 865 Mr Russell gives evidence in relation to Document 106 at paragraph 380 of his affidavit (see also paragraph 89 of his affidavit). His evidence as to his usual practice in preparing detailed advices has been set out above, in the context of Document 105. It is Mr Russell's evidence that he followed his usual practice in relation to Document 106. 866 PwC Australia submits that the content of this document is legal and its dominant purpose was the provision of legal advice by Mr Russell to JBS. 867 The JBS Parties submit that this document constitutes legal advice given by lawyers (including Mr Russell). 868 In my view, this document is privileged. I consider that the advice was prepared for the dominant purpose of giving legal advice in relation to the [redacted]. Noting Mr Russell's evidence that this was his advice, I consider it to be legal advice provided by him in his capacity as a lawyer. On that basis, I consider that this document records a communication made for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia.

[153]

R43 - PWC.004.004898 869 This document comprises: (a) a cover letter dated 3 March 2016 from Mr Russell (PwC Australia - ALP) to Mr Alvares (JBS Australia) with the heading "[Redacted]"; and (b) a letter dated 27 January 2016 from Mr Russell to Mr Alvares entitled "[Redacted]", followed by a detailed advice. 870 The cover letter dated 3 March 2016 is marked "Confidential and subject to legal professional privilege". 871 The cover letter dated 3 March 2016 describes the attached document as "[redacted]". It states [redacted]. 872 The 27 January 2016 letter states that the advice had been prepared in accordance with the scope of work outlined in the Statement of Work dated 31 August 2015 (being Statement of Work No 6). It states that the advice comprises [redacted]. It is also stated that the comments consider [redacted]. 873 The letter states that [redacted]. 874 Privilege has been claimed over the whole of this document on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Legal services Project Twiggy Phase 2' SoW dated 31 August 2015, in respect of which Glenn Russell is the relevant ALP partner". 875 Mr Russell gives evidence in relation to Document 107 at paragraph 381 of his affidavit (see also paragraph 89 of his affidavit). His evidence as to his usual practice in preparing detailed advices has been set out above, in the context of Document 105. It is Mr Russell's evidence that he followed his usual practice in relation to Document 107. 876 PwC Australia submits that the content of this document is legal and its dominant purpose was the provision of legal advice by Mr Russell to JBS Australia. 877 The JBS Parties submit that this document constitutes legal advice given by lawyers (including Mr Russell). 878 The Amici Curiae submit that this document is not privileged. They submit that: the advice, as contemplated by Statement of Work No 6, concerns the income tax implications of [redacted]; the advice sets out PwC Australia's preliminary analysis of [redacted]; such advice was contemplated by Statement of Work No 6, which stated that the income tax advice would include preparation of "[redacted]"; the advice was prepared for the "sole purpose" of assisting with those calculations; this is a commercial purpose, and not a privileged purpose. The Amici Curiae submit that the advice was prepared by NLPs (including Mr Fuller, Mr Stewart and Mr Dunn) and ALPs (including Mr Russell) acting other than in their legal capacity (including as tax and accounting experts). It follows, the Amici Curiae submit, that this document does not record communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia. 879 In my view, this document is privileged. In substance, the document constitutes advice about matters of Australian taxation law. The advice involves the expression of an opinion about the application of provisions of Australian taxation law [redacted] to the facts of the transaction. In circumstances where the advice was given by Mr Russell, an ALP, to the client about matters of Australian taxation law, I would characterise the advice as legal advice. 880 Having regard to the content of the document and the evidence of Mr Russell, I consider that the document comprises a communication made for the dominant purpose of the giving of legal advice, namely legal advice given by Mr Russell, an ALP, to his client (JBS) regarding [redacted]. For the reasons set out above, I would characterise the document as legal advice. This analysis is not affected by the fact that NLPs had substantial input into the preparation of the advice. In circumstances where the advice was prepared at Mr Russell's direction, was substantively reviewed by Mr Russell, and was adopted by him as his own (with whatever changes he considered appropriate) by being sent to the client under his name, I consider that the advice is substantively Mr Russell's advice. Accordingly, I conclude that the document comprises a communication made for the dominant purpose of the giving of legal advice. It follows that the document is privileged.

[155]

A7 - PWC.007.003522 887 This document comprises a chain of emails dated between 14 March and 18 March 2016 between personnel at PwC USA and PwC Brazil regarding a list of questions that the Brazilian Development Bank (BNDES) (a shareholder of JBS SA) had submitted to JBS in relation to Project Chelsea, and in respect of which JBS sought assistance from PwC in answering. There are no ALPs copied to the email chain after the first email. Attached to the email are two documents: a slide deck entitled "JBS SA Restructure - Red Flags Report" dated 17 February 2016 (Document 110) (the slide deck was prepared by PwC USA and contains a high level review of the step plan and key observations in relation to tax); and the list of questions from BNDES dated 10 March 2016 with some responses included from PwC UK and PwC Ireland (Document 111). 888 Privilege been claimed over the whole of Documents 109, 110 and 111 on the basis that they are a "confidential internal PwC communication involving a PwC lawyer, or involving a PwC non-legal advisor working under the direction of a PwC lawyer or on a legal services engagement, for the dominant purpose of obtaining or providing legal advice" and two attachments to emails "which communicated confidential legal advice, or a request for confidential legal advice, between a lawyer and a client, and the attachment was relevant to the seeking or the provision of that legal advice". 889 In PwC Australia's note specifying additional bases for privilege claims, it is stated that privilege is claimed over parts of the second attachment on the basis that they disclose the substance of communications for the dominant purpose of JBS requesting or being provided with legal advice from White & Case and Mattos Filho. The note does not seek to identify those parts. 890 Mr Russell does not give any evidence in relation to Documents 109, 110 and 111. Mr Alvares gives evidence in relation to these documents at paragraphs 88-90 of his affidavit (see also paragraphs 86-87 of his affidavit). Mr Alvares states that in about early March 2016, he was informed by Mr Kaddissi that BNDES had several questions about Project Chelsea and GRAP that had to be answered by the "external advisors". Mr Alvares states that he informed Mr Russell what Mr Kaddissi had told him, and said that he (Mr Russell) could expect to be contacted by someone at PwC USA about it. Mr Alvares states that attachment to the email (i.e. Documents 110 and 111) reveal the proposed steps to achieve the listing on the New York Stock Exchange, which JBS Australia disclosed to PwC Australia for the purposes of giving the advice sought under Statement of Work No 9. Mr Alvares gives evidence that several law firms were engaged to advise on Project Chelsea, including White & Case in the USA, and Mattos Filho in Brazil. Ms Manzano gives evidence that BNDES needed to provide its consent to certain matters before Project Chelsea could proceed, and that, before providing its consent, BNDES sought further information about the project from JBS SA. 891 In the schedule to its outline of opening submissions, PwC Australia refers to the evidence relating to Documents 109, 110 and 111, but otherwise does not make any submissions about these documents. 892 The JBS Parties contend that Documents 109, 110 and 111 form part of a "continuum of communications" between JBS lawyers and others (including PwC employees) that are directly related to the performance by the in-house lawyers (including Mr Kaddissi) in their duty as lawyers to advise JBS parties. Further, they contend that the documents form part of a "continuum of communications" with external law firms directly related to their engagement to provide legal advice to JBS parties. 893 In my view, Documents 109, 110 and 11 are not privileged. While Statement of Work No 9 relating to Project Chelsea does provide for (among other things) the provision of corporate legal and documentation services, the dominant purpose of the communications was obtaining consent from BNDES to proceed with the contemplated transaction. The advice in relation to this issue was being given by persons at PwC USA, PwC Brazil, PwC UK and PwC Ireland with the relevant subject matter expertise, and not by an ALP at PwC Australia. It follows that Documents 109, 110 and 111 are not, and do not record, communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers from PwC Australia.

[158]

R44 - PWC.020.038333 899 This document is a chain of emails dated 6 April 2016 between Ms Low (PwC Australia - NLP) and Mr Russell (PwC Australia - ALP) regarding a [redacted]. The subject line of the emails is: "[Redacted]". 900 Privilege has been claimed over the first, second and third emails in the chain (from Ms Low and Mr Russell) on the basis they are "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation in relation to a proposed engagement relating to Project Chelsea". Privilege has also been claimed on the basis they are "a copy of a communication created by PwC for the dominant purpose set out above (Propend)." 901 Privilege has been claimed over the fourth email in the chain (from Ms Low) on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to a proposed engagement relating to Project Chelsea". 902 Mr Russell gives evidence that he became aware that there might be an issue relating to [redacted] as a result of a conversation with a representative of JBS Australia. He states that he asked Ms Low to consider and research this issue for him. Mr Russell states that he discussed Ms Low's initial research with her and asked her to undertake some further research. It is Mr Russell's evidence that he recorded this research in a summary email advice that he sent to Mr Alvares on 11 April 2016. 903 In my view, this document is privileged. The emails relate to a discrete legal issue arising in the context of Project Chelsea. Mr Russell required input from an NLP at PwC Australia (in this case, Ms Low) to assist in his consideration of the relevant legal issues, and he subsequently provided his legal advice on the issue to JBS Australia. Although Statement of Work No 8 relating to Project Chelsea had not yet been issued or signed on behalf of JBS Australia, this is not determinative as to whether the dominant purpose of the communications was the provision of legal advice. It follows that the document records communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia.

[160]

R46 - PWC.004.005205 905 This document is a chain of emails dated 21 April 2016 between personnel at PwC Australia regarding the return of capital project. The first email in the chain is from Mr Russell (ALP) to Mr Wogan (ALP), Mr Moss (NLP) and Mr Ratna (NLP) (copied to Mr Stewart (NLP)) and notes that the [redacted]. The second email is from Mr Wogan to Ms Syme (ALP) [redacted]. The third email is from Ms Syme to Mr Russell, Mr DeBellis (NLP) and Mr Stewart (copied to Mr Wogan and Ms Newton (ALP)) attaching [redacted]. The fourth email is from Mr Russell to Mr Stewart, forwarding Ms Syme's email, and [redacted]. Document 115 is [redacted], comprising a table entitled "JBS Repatriation - Legal Step Plan - Australia". 906 Privilege has been claimed over the first email in Document 114 (from Mr Russell) on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell and Benn Wogan) the scope of which was recorded in the 'Legal Services - Assistance with Return of Capital' SoW dated 18 April 2016, in respect of which Glenn Russell is the relevant ALP partner". Privilege has also been claimed on the basis it is "a copy of a communication created by PwC for the dominant purpose set out above (Propend)." 907 Privilege has been claimed over the second and third emails in Document 114 (from Ms Syme) on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Benn Wogan and Hannah Syme) the scope of which was recorded in the 'Legal Services - Assistance with Return of Capital' SoW dated 18 April 2016, in respect of which Glenn Russell is the relevant ALP partner". Privilege has also been claimed on the basis it is "a copy of a communication created by PwC for the dominant purpose set out above (Propend)." 908 Privilege has been claimed over the fourth email in Document 114 (from Glenn Russell) and Document 115 on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Legal Services - Assistance with Return of Capital' SoW dated 18 April 2016, in respect of which Glenn Russell is the relevant ALP partner." 909 Mr Russell gives evidence that he regarded the request from Ms Syme as a "routine and simple request for information" and therefore forwarded it to Mr Stewart to provide the requested information. 910 PwC Australia contends that the reasonable inference is that the communication (both the email chain (Document 114) and its attachment (Document 115)) was for the dominant purpose of Mr Wogan's team obtaining information necessary to provide legal services to JBS. 911 In my view, Documents 114 and 115 are privileged. The communications are concerned with legal services to be provided by PwC Australia's corporate legal team to JBS Australia in respect of the [redacted]. The email from Ms Syme records that her purpose in seeking input from Mr DeBellis and Mr Stewart was to facilitate the preparation of legal documents. Similarly, Document 115 is concerned with the appropriate steps and legal documentation. This advice was provided pursuant to Statement of Work No 8, which included "legal advice in relation to the steps to be undertaken in relation to [redacted]"; "[redacted]"; and "[redacted]" as part of the scope of corporate legal services. The advice was being given by ALPs at PwC Australia (in this case, Ms Syme and Mr Wogan). It follows that Documents 114 and 115 record communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia.

[162]

R48 - PWC.007.003434 914 This document comprises: (a) a cover letter dated 2 March 2016 from Mr Russell (PwC Australia - ALP) to Mr Alvares (JBS Australia) headed "[Redacted]"; and (b) a letter dated 27 January 2016 from Mr Russell to Mr Alvares headed "[Redacted]", followed by a detailed advice on the [Redacted]. 915 I note that the date for this document in the index of Sample Documents reproduced in the Appendix to these reasons is 22 August 2018. That appears to be a typographical error. 916 Both the cover letter dated 2 March 2016 and the letter dated 27 January 2016 are marked "Confidential and subject to legal professional privilege". 917 The cover letter dated 2 March 2016 describes the attached advice as "[redacted]". It states that [redacted]. 918 The 27 January 2016 letter states that the advice had been prepared in accordance with the scope of work outlined in the Umbrella Engagement Agreement and the Statement of Work dated 11 September 2015. 919 The advice [redacted]: (a) [redacted]; (b) the conditions for, and implications of, the formation of a multiple entry consolidated group; (c) tax residency considerations; (d) whether any capital gain or loss arises on the disposal of shares; (e) the Australian tax implications of debt financing; (f) outbound investments and the creation of controlled foreign companies; and (g) transfer pricing implications. 920 The executive summary states that the advice does not contain any discussion in relation to the potential application [redacted], that advice having been separately provided (Document 106). 921 [Redacted], but this appendix is not included in the copy of the document provided to the Court. Accordingly, it is unnecessary to consider whether that Appendix is privileged. 922 Privilege has been claimed over the whole of the document on the basis it is "for the dominant purpose of JBS requesting or being provided with legal advice from PwC (including Glenn Russell) in relation to the 'Legal Services - Global Regional Alignment Project' SoW dated 11 September 2015, in respect of which Glenn Russell is the relevant ALP partner". 923 Mr Russell gives evidence in relation to Document 116 at paragraph 378 of his affidavit (see also paragraph 89 of his affidavit). His evidence as to his usual practice in preparing detailed advices has been set out above, in the context of Document 105. It is Mr Russell's evidence that he followed his usual practice in relation to Document 116. 924 PwC Australia contends that the content of this advice is "obviously and inherently legal" and that its dominant purpose is "clearly the provision of legal advice" by Mr Russell to JBS. 925 The JBS Parties submit that this document comprises legal advice given by lawyers (including Mr Russell). 926 The Amici Curiae submit that this document is not privileged. They submit that: while the Australian income tax implications arising from the GRAP steps implemented by the JBS Global Group may have depended, amongst other things, on the application of Australian taxation legislation, the dominant purpose of the provision of this advice was not a privileged purpose; rather, the advice was provided for multiple purposes, as follows: (a) to confirm advice that had been given during the course of the project to inform the preparation and implementation of the GRAP step plan by ensuring the most tax efficient course was adopted; (b) to record PwC Australia's advice in relation to various income tax considerations (such as [redacted]); (c) to create a record of the project for JBS Australia (noting that it was ultimately provided in March 2016, the project having completed in December 2015); and (d) to be provided to KPMG Australia, for the purpose of completing the legal audit of the JBS Australia Group for the financial year ended 27 December 2015. 927 On that basis, the Amici Curiae submit, it cannot be said that that the most influential, or prevailing, purpose for the provision of the advice was a privileged purpose. The Amici Curiae submit that: the advice was prepared by NLPs (including Mr Fuller, Mr Stewart and Mr Dunn) and ALPs (including Mr Russell) acting in their capacity both as lawyers and as tax and accounting experts. It follows, the Amici Curiae submit, that this document does not record communications made for the dominant purpose of giving or obtaining legal advice from one or more lawyers of PwC Australia. 928 In my view, this document is privileged. In substance, the document constitutes advice about matters of Australian taxation law. The advice involves the expression of an opinion about the application of provisions of Australian taxation law to the facts of the transaction. In circumstances where the advice was given by Mr Russell, an ALP, to the client about matters of Australian taxation law, I would characterise the advice as legal advice. This analysis is not affected by the fact that NLPs had substantial input into the preparation of the advice. In circumstances where the advice was prepared at Mr Russell's direction, was substantively reviewed by Mr Russell, and was adopted by him as his own (with whatever changes he considered appropriate) by being sent to the client under his name, I consider that the advice is substantively Mr Russell's advice. 929 Having regard to the content of the document and the evidence of Mr Russell, I consider that the document comprises a communication made for the dominant purpose of the giving of legal advice, namely legal advice given by Mr Russell, an ALP, to his client (JBS) [redacted]. For the reasons set out above, I would characterise the document as legal advice. I note the Amici Curiae's submission that the communication was made for multiple purposes, including: (a) to confirm advice that had been given during the course of the project to inform the preparation and implementation of the GRAP step plan by ensuring the most tax efficient course was adopted; (b) to record PwC Australia's advice in relation to various income tax considerations ([redacted]); (c) to create a record of the project for JBS Australia (noting that it was ultimately provided in March 2016, the project having completed in December 2015); and (d) to be provided to KPMG Australia, for the purpose of completing the legal audit of the JBS Australia Group for the financial year ended 27 December 2015. However, given the content of the document and the evidence of Mr Russell, I do not consider these to have been material purposes for the making of the communication. I therefore conclude that the document comprises a communication made for the dominant purpose of the giving of legal advice. Accordingly, I conclude that this document is privileged.

[163]

Summary 930 My conclusions regarding each of the Sample Documents are summarised in the Annexure to these reasons. The last column in the table in that Annexure records my conclusion as to whether each document is privileged ("P"), partly privileged ("PP") or not privileged ("NP"). Where the privilege claim is over part of a document, and I have concluded that that part of the document is privileged, I have recorded my conclusion as "PP". 931 By way of broad overview, the conclusions that I have reached in considering the Sample Documents can be summarised as follows: (a) Where a document constitutes advice given by an NLP at PwC Australia to the client (JBS) on matters of stamp duty (whether in an email or a memorandum), I have generally concluded that the document is not privileged. This includes cases where Mr Russell is copied on or party to the email. An example is Document 26. (b) Where a document constitutes advice given by an NLP at PwC Australia to the client (JBS) on matters of valuation (whether in an email or a memorandum), I have generally concluded that the document is not privileged. This includes cases where Mr Russell is copied on or party to the email. An example is Document 56. (c) Where a document constitutes an email exchange between NLPs at PwC Australia in relation to matters of accounting, I have generally concluded that the document is not privileged. An example is the communication comprising Documents 60 and 61. (d) Where a document constitutes accounting advice prepared by an NLP at PwC Australia which is provided by Mr Russell (an ALP) to the client (JBS) as "legal advice", I have generally concluded that the communication was not made for the dominant purpose of the giving or receiving of legal advice, and therefore that the document is not privileged. An example is the communication comprising Documents 82 and 83. (e) Where the document is an email exchange between an NLP at PwC Australia and an overseas PwC firm, and contains substantive advice given by the NLP or the overseas PwC firm, and no substantive advice given by an ALP, and PwC Australia's contention is that the NLP was effectively acting as Mr Russell's agent to obtain information from the person at the overseas PwC firm to enable Mr Russell to provide his legal advice to his client (JBS), I have noted that this contention appears to rely on the authorities concerning third parties that have been discussed above, and that the contention seems to be that the person at the overseas PwC firm was a third party expert providing an input to enable Mr Russell to provide legal advice to his client. I have generally accepted Mr Russell's evidence to the effect that he needed the information for the purpose of giving advice, but I have generally noted that it does not follow that the dominant purpose of the communication was to enable Mr Russell to provide legal advice to his client. I have generally found that there were multiple purposes for the making of the communication, including the giving of advice by the NLP or by the overseas PwC firm to assist the client in relation to the relevant issue. I have generally found that this purpose was of at least equal weight to a purpose of giving or receiving legal advice. Accordingly, I have generally found that the communication was not made for the dominant purpose of the giving or receiving of legal advice, and therefore that the document is not privileged. This analysis has generally been applied whether or not Mr Russell is a party to the email. An example is Document 7. (f) Where the document is an email exchange between an NLP at PwC Australia and the client (JBS), and involves the NLP requesting JBS to provide information about a matter relating to a proposed transaction, and no substantive emails are authored by an ALP, and PwC Australia's and the JBS Parties' contention is that the email exchange forms part of a "continuum of communications" between the client and PwC Australia for the dominant purpose of obtaining legal advice, I have generally concluded that there were multiple purposes for the communication, including to enable the NLP to give (non-legal) advice to JBS in connection with the relevant issue, and that this purpose was of at least equal weight to a purpose of giving or receiving legal advice. Accordingly, I have generally found that the communication was not made for the dominant purpose of the giving or receiving of legal advice, and therefore that the document is not privileged. An example is Document 44. (g) Where a document constitutes advice given by Mr Russell (an ALP) to the client (JBS) on matters of Australian taxation law (whether in an email or a memorandum), I have generally concluded that the document is privileged. This includes cases where the advice was drafted by an NLP at Mr Russell's request, was substantively reviewed by Mr Russell, and adopted by Mr Russell as his own advice (i.e. the email or memorandum is from Mr Russell). An example is Document 3. (h) Where a document constitutes draft advice prepared by an ALP at PwC Australia for review by Mr Russell (an ALP) on matters of Australian taxation law (whether in an email or a memorandum), with a view to the advice being provided by Mr Russell to the client, I have generally concluded that disclosure of the document would tend to reveal the substance or content of a privileged communication, namely legal advice given or to be given by Mr Russell. Accordingly, I have generally concluded that the document is privileged. An example is Document 32. 932 While I have accepted the Amici Curiae's submissions in relation to many documents, I have not accepted their submissions on some other documents. In particular, in some cases where the Amici Curiae submit that a document is not privileged, I have concluded that the document is privileged. By way of broad explanation, I note that the Amici Curiae in their submissions place emphasis on the distinction between legal advice and commercial advice and submit that certain advices should be characterised as commercial and not legal. I have generally approached the issue in a different way, by asking whether the relevant communication is to be characterised as legal or non-legal. I also note that the Amici Curiae in their submissions place emphasis on the capacity in which a lawyer was acting. Thus, in some cases, they submit that a communication was not made by the lawyer acting in his or her capacity as such. While I accept the point made by the Amici Curiae as a matter of principle, in relation to the relevant documents discussed above, I have generally formed the view that the relevant lawyer (usually, Mr Russell) was acting in his capacity as a lawyer in making the relevant communications.

[165]

Associate: Dated: 25 March 2022 ANNEXURE Index of Sample Documents (arranged in chronological order) with the Court's conclusions as to privilege (P = privileged; PP = partly privileged; NP = not privileged) Doc No. Date Sample Doc No Doc ID PDF Page Conclusion as to privilege

  10/11/2014  A18            PWC.011.003987  6         NP

  13/11/2014  R1             PWC.011.004302  12        P

  13/11/2014  R2             PWC.011.004304  14        P

  17/11/2014  A26            PWC.004.000335  19        NP

  10/12/2014  R49            PWC.203.000019  21        PP

  19/12/2014  A48            PWC.011.005510  28        NP

  12/01/2015  A2             PWC.007.001274  35        NP

  15/01/2015  A23            PWC.007.001301  37        NP

  21/01/2015  R3             PWC.009.000278  46        P

 29/01/2015  A11            PWC.009.000336  47        NP

 4/02/2015   A13            PWC.011.006109  52        NP

 7/02/2015   A1             PWC.007.001385  59        NP

 8/02/2015   A37            PWC.007.001389  64        NP

 10/02/2015  A49            PWC.011.006279  66        NP

 10/02/2015  A14            PWC.011.006280  74        NP

 11/02/2015  A39            PWC.007.001408  80        NP

 13/02/2015  A43            PWC.011.006361  87        NP

 13/02/2015  A50            PWC.011.006363  89        NP

 13/02/2015  A50            PWC.011.006364  95        NP

 17/02/2015  A31            PWC.011.006517  110       P

 19/02/2015  R4             PWC.003.000846  113       P

 19/02/2015  R5             PWC.003.000854  116       P

 18/03/2015  R6             PWC.011.006873  118       P

 18/03/2015  R7             PWC.011.006875  120       PP

 23/03/2015  A3             PWC.011.006910  123       NP

 2/04/2015   A15            PWC.011.006967  145       NP

 2/04/2015   A15            PWC.011.006968  149       NP

 5/05/2015   A5             PWC.010.001897  227       NP

 5/05/2015   A5             PWC.010.001898  231       NP

 15/05/2015  A46            PWC.010.002014  251       NP

 3/06/2015   R8             PWC.020.106156  259       P

 3/06/2015   R9             PWC.020.106157  260       P

 3/06/2015   R10            PWC.020.106158  277       P

 4/06/2015   R11            PWC.010.002184  299       P

 4/06/2015   R12            PWC.009.000710  301       P

 4/06/2015   R13            PWC.009.000711  302       P

 4/06/2015   R14            PWC.009.000712  318       P

 12/06/2015  R17            PWC.003.001215  319       NP

 12/06/2015  R15            PWC.011.007776  325       P

 14/06/2015  R16            PWC.011.007783  329       P

 14/06/2015  R18            PWC.011.007784  332       P

 14/06/2015  R19            PWC.011.007785  337       P

 16/07/2015  R20            PWC.011.008086  347       P

 5/08/2015   A33            PWC.007.002145  350       NP

 9/08/2015   R21            PWC.009.000987  352       P

 9/08/2015   R22            PWC.009.000988  354       P

 31/08/2015  R50            PWC.212.000001  360       PP

 14/09/2015  A32            PWC.002.000995  368       NP

 21/09/2015  R23            PWC.011.009182  376       P

 23/09/2015  R24            PWC.003.001713  379       P

 23/09/2015  R25            PWC.003.001714  381       P

 23/09/2015  R26            PWC.003.001715  424       P

 24/09/2015  R27            PWC.003.001764  438       P

 27/09/2015  R28            PWC.003.001854  442       P

 27/09/2015  R29            PWC.003.001855  444       P

 28/09/2015  A19            PWC.011.009388  464       NP

 28/09/2015  R30            PWC.003.001892  470       P

 28/09/2015  R31            PWC.003.001893  471       P

 28/09/2015  R32            PWC.003.001894  494       NP

 1/10/2015   A22            PWC.005.000858  495       NP

 1/10/2015   A22            PWC.005.000859  496       NP

 2/10/2015   R33            PWC.004.002054  530       P

 2/10/2015   R34            PWC.004.002055  532       P

 8/10/2015   A20            PWC.011.009771  637       NP

 8/10/2015   A20            PWC.011.009772  639       NP

 15/10/2015  A24            PWC.011.009931  644       NP

 15/10/2015  A24            PWC.011.009932  645       NP

 15/10/2015  A21            PWC.011.009933  681       NP

 15/10/2015  A21            PWC.011.009934  682       NP

 16/10/2015  A12            PWC.008.001400  718       NP

 27/10/2015  R35            PWC.003.002145  720       P

 28/10/2015  R36            PWC.008.001527  725       P

 28/10/2015  R37            PWC.008.001529  726       PP

 17/11/2015  A9             PWC.011.010299  794       P

 18/11/2015  A38            PWC.007.002844  796       NP

 19/11/2015  A25            PWC.008.001946  802       NP

 28/11/2015  A4             PWC.007.002954  805       NP

 28/11/2015  A44            PWC.007.002955  810       NP

 28/11/2015  A6             PWC.007.002963  814       NP

 29/11/2015  A30            PWC.008.002174  822       NP

 29/11/2015  A30            PWC.008.002175  823       NP

 29/11/2015  A28            PWC.008.002181  826       NP

 29/11/2015  A28            PWC.008.002182  827       NP

 1/12/2015   A41            PWC.007.003049  879       NP

 2/12/2015   A29            PWC.008.002439  886       NP

 2/12/2015   A29            PWC.008.002440  887       NP

 3/12/2015   R38            PWC.011.010960  907       P

 3/12/2015   A47            PWC.010.003587  911       P

 4/12/2015   R39            PWC.003.004372  921       NP

 9/12/2015   A34            PWC.020.035462  929       NP

 9/12/2015   A34            PWC.020.035463  932       NP

 16/12/2015  A40            PWC.003.005572  940       NP

 18/12/2015  A42            PWC.008.003015  945       NP

 18/12/2015  A42            PWC.008.003016  960       NP

 20/12/2015  A16            PWC.003.006935  967       P

 20/12/2015  A17            PWC.003.006938  973       P

 24/12/2015  A10            PWC.008.003328  979       P

 24/12/2015  A10            PWC.008.003329  980       P

 25/12/2015  A35            PWC.003.008111  983       NP

12/01/2016  R40            PWC.004.003831  986       P

30/01/2016  A45            PWC.008.003972  1070      PP

1/02/2016   A27            PWC.005.001838  1080      NP

1/02/2016   A27            PWC.005.001839  1082      NP

25/02/2016  A8             PWC.008.004311  1134      P

2/03/2016   R41            PWC.008.004393  1137      PP

2/03/2016   R42            PWC.007.003438  1209      P

3/03/2016   R43            PWC.004.004898  1278      P

5/03/2016   A36            PWC.008.004425  1295      NP

18/03/2016  A7             PWC.007.003522  1300      NP

18/03/2016  A7             PWC.007.003523  1303      NP

18/03/2016  A7             PWC.007.003524  1314      NP

6/04/2016   R44            PWC.020.038333  1320      P

11/04/2016  R45            PWC.007.003639  1323      NP

21/04/2016  R46            PWC.004.005205  1325      P

21/04/2016  R47            PWC.004.005206  1327      P

22/08/2018  R48            PWC.007.003434  1331      P

Commissioner of Taxation v PricewaterhouseCoopers

At a glance

Court

Decision date

Before

Source

Judgment (166 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (28)

Cited By (4)