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Category: Procedural rulings

Parties: Dexus Capital Investment Services Pty Ltd atf Dexus Diversified Infrastructure Trust A, Australia Pacific Airport Funds & Australia Pacific Airports Fund No.4 (First Plaintiff)
Dexus Capital Investors Limited atf Australia Pacific Airports Fund 3 & Infrastructure Trust No. 1 (Second Plaintiff)
InfraBridge (GIF Cayman Holdco) 4, L.P. (Third Plaintiff)
Australia Pacific Airports Corporation Limited (First Defendant)
J.P. Morgan Nominees Australia Ltd (Second Defendant)
Utilities of Australia Pty Ltd atf Utilities Trust of Australia (Third Defendant)
IFM Investors (Nominees) Limited atf DAF Private Capital Sub-Trust APAC (Fourth Defendant)
The Northern Trust Company as custodian for the Future Fund Board of Guardians (Fifth Defendant)
REST Nominees No.2 Pty Ltd atf REST Infrastructure Trust (Sixth Defendant)
SAS Trustee Corporation (Eighth Defendant)
Future Fund Board of Guardians (Ninth Defendant)

Representation: Counsel:
Mr J Arnott SC / Ms H Zhu / Mr H Wilesmith (Plaintiffs)
Mr R Dick SC / Ms C Winnett (First Defendant)
Ms E Holmes SC / Mr S Murray (Second and Eighth Defendants)
Mr C Beshara (Third Defendant)
Ms C Ernst (Fourth Defendant)
Mr D Heaton (Fifth and Ninth Defendants)
Mr M Taylor (Sixth Defendant)
Solicitors:
Arnold Bloch Liebler (Plaintiff)
Norton Rose Fulbright (First Defendant)
Corrs Chambers Westgarth (Second and Eights Defendants)
Ashurst (Third Defendant)
Gilbert + Tobin (Fourth Defendant)
Baker McKenzie (Fifth and Ninth Defendants)
Jones Day (Sixth Defendant)

File Number(s): 2025/00192969

Publication restriction: Nil

Judgment

1. The relevant background to this matter was summarised by Stevenson J in Dexus Capital Investment Services Pty Ltd atf Dexus Diversified Infrastructure Trust A, Australia Pacific Airport Funds & Australia Pacific Airports Fund No.4 v Australia Pacific Airports Corporation Limited [2025] NSWSC 519. For present purposes, it is unnecessary to repeat this summary.

2. The first defendant, the second and eighth defendants (SAS defendants), the fourth defendant and the fifth and ninth defendants have each challenged privilege claims made by the plaintiffs over documents discovered by the plaintiffs in the proceedings. The challenges made to the plaintiffs’ privilege claims fall into two broad categories.

3. First, it is said by the defendants that the plaintiffs have not adequately established their claims of privilege over a number of documents.

4. Secondly, it is asserted that the plaintiffs have waived privilege over certain categories of documents by reason of the way they have chosen to conduct the proceedings.

5. On 9 February 2026, I heard submissions from the parties in relation to the defendants’ challenge to the plaintiffs’ privilege claims. The resolution of this issue had some urgency. The matter is listed for a final hearing commencing on 7 April 2026. The number of documents over which the plaintiffs have claimed privilege is very large. If the challenges made to these claims are successful, identifying the documents captured by those successful challenges is likely to be time-consuming and, potentially, controversial. Any successful challenge could, potentially, result in a large number of documents being made available to the defendants for the first time. In light of these factors, and the close proximity of the final hearing, it was my view that the challenges to the plaintiffs’ privilege claims needed to be determined as quickly as was practicable.

6. At the conclusion of the hearing, I indicated to the parties the views I had reached in respect of each ground of challenge. I directed that they forward to my Associate short minutes of order reflecting those views and – if agreement could not be reached as to how best to reflect those views in a single set of orders – to provide a single marked up set of orders identifying the points of difference between the parties, accompanied by submissions of no more than three pages from each party setting out their respective positions on the identified areas of disagreement.

7. On 11 February 2026, the parties provided me with a document containing their competing short minutes of order, which, after ruling on several minor areas of disagreement, formed the basis of orders that I made on 12 February 2026, which are replicated in these reasons under the heading ‘Orders’.

8. I set out below my reasons for making those orders.

Have the defendants established their privilege claims?

9. The defendants say that, to sustain their privilege claim, the plaintiffs are required to prove all facts needed to establish that the claim is properly made: Hancock v Rinehart [2016] NSWSC 12 at [7]. This is correct. As the Full Federal Court observed in Barnes v Commissioner of T**axation (2007) 242 ALR 601; [2007] FCAFC 88 at [18]:

“The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallace (2004) 142 FCR 185 at 189, Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (1991) 29 FCR 203 at 211 (per Lockhart J); Grant v Downs (1976) 135 CLR 674 at 689 (per Stephen, Mason and Murphy JJ). Where possible the Court should be assisted by evidence of the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document. The fact that generalised evidence is not challenged in cross-examination does not mean that such evidence must be accepted, particularly when it is as manifestly inadequate as it is in this case. As in Kennedy v Wallace, mere general assertions of the purpose of creation of the documents are insufficient to discharge this onus. Even though in that case some evidence as to the purpose of particular records was adduced, Allsop J at 216 considered that the onus had not been discharged because the evidence did not permit a conclusion to be drawn as to the dominant purpose of the creation of any particular document or entry in a document. Simply to show that one purpose for creation of the document was to obtain legal advice or assistance is not good enough.”

10. On this basis, the formulaic assertions of privilege contained in the “privilege log” prepared by the plaintiffs in support of their claims are clearly insufficient – from an evidentiary perspective – to sustain them. However, the form and content of the privilege log has been shaped by the circumstances in which it came to exist.

11. In November 2025, the parties exchanged correspondence addressing, inter alia, what was said by at least the first defendant to be an insufficiency in the basis identified by the plaintiffs in support of their privilege claims. In a letter dated 20 November 2025, Norton Rose Fulbright, the solicitors for the first defendant, proposed a process for addressing this aspect of the plaintiffs’ claims. That process contemplated a hearing on limited illustrative documents before the end of 2025 with the possibility of a further interlocutory hearing in 2026 should the proposed adjudication of the privilege claims over those illustrative documents fail to resolve any residual dispute in respect of the balance of the documents over which the plaintiffs had claimed privilege.

12. Norton Rose Fulbright’s letter was accompanied by a table articulating in greater detail the defendants’ challenges to the plaintiffs’ privilege claims. Mr Arnott SC, who, with Ms Zhu and Mr Wilesmith, appeared for the plaintiffs, drew to my attention the fact that in relation to three of the five categories of documents in respect of which it was said there was an insufficient basis for the plaintiffs’ privilege claim, the letter noted:

“NB: The Defendants would (subject to reviewing the plaintiffs’ responsive material on this issue) be prepared to withdraw the challenges falling into this category if the plaintiffs can put on an affidavit from their solicitor who conducted the review over the documents in this category that confirms that, on the solicitor’s review of the documents:

(a) those documents were made or sent for the dominant purpose of a lawyer providing legal advice or legal services (and not commercial advice or performing commercial functions); and

(b) the communications were sent in the course of making a confidential communication (and identifying the basis of the purported confidence).”

13. On 15 December 2025, the parties made submissions to Peden J in relation to a proposed approach for the determination of the plaintiffs’ privilege claims. After hearing from the parties, her Honour said:

“HER HONOUR: Mr Arnott, I think what needs to happen is by the 23rd you’re going to be handing over the documents over which you no longer claim any privilege. That could reduce it a lot. You’ve heard what the others have said. If you just put on a verified log by the 20th – which is what you’re going to do anyway – everything may be clear. That’s all that’s been required of you. I appreciate it doesn’t necessarily mean it’s been narrowed. There is going to be another step that may be necessary, which is categorising. That’s going to have to happen later.”

14. Following this hearing, Mr Jonathan Milner, the solicitor for the plaintiffs, caused two solicitors employed by his firm to prepare the privilege log. In an affidavit sworn on 23 January 2026, Mr Milner says:

“59 I am informed by Mr Harris and Ms Cameron, and believe, that:

a. together with junior counsel, they reviewed the remaining documents the subject of the Privilege Challenges in preparing the Plaintiff’s Privilege Log, in order to substantiate and particularise the basis on which the plaintiffs assert their claims of privilege over those documents;

b. where it was apparent on the face of a document that it contained communications sent or received for the dominant purpose of legal advice, legal services or in anticipation of litigation, the relevant document was particularised as such in the Privilege Log; and

c. where it was not apparent on the face of a document that it contained communications sent or received for the dominant purpose of legal advice, legal services or in anticipation of litigation, instructions were sought from the relevant sender or recipient of that communication to ascertain the dominant purpose of the communication(s).

60 I have reviewed 490 of the 4401 documents over which the plaintiffs maintain a claim of privilege. I am informed by Ms Cameron and believe that these 490 documents are representative sample documents from each of category of documents referred to at paragraph 54(a)-(h) above. I have reviewed:

…

61 On the basis of my instructions and having reviewed each of those representative documents and to the extent necessary caused instructions to be confirmed as to the dominant purpose for which communications were sent or documents were prepared, I am satisfied that the plaintiffs have a valid privilege claim over each of the documents in the Plaintiffs’ Privilege Log.

62 Disclosure of the documents over which privileged (sic) is maintained in whole or part by the plaintiffs as set out in this affidavit and the Privilege Log would tend to reveal the substance of advice or the content of instructions provided in respect of legal advice or professional legal services. Disclosure would also cause to be revealed the content of communications sent for the dominant purpose of anticipated or actual legal proceedings.”

15. The defendants have persisted in their challenge to the plaintiffs’ privilege claims based on what is said to be the insufficient basis advanced in support of those claims.

16. At the hearing before me, the first defendant observed that Mr Milner’s involvement in the process described in paragraphs 59 and 60 of his affidavit was more in the nature of an audit or spot check of the work done by others. The first defendant emphasised the fact that – since receiving Mr Milner’s affidavit – its continued agitation of this issue had resulted in the plaintiffs abandoning claims made in the privilege log over a number of documents. It is said – not unreasonably – that this fact casts doubt on the extent to which it can rely upon the exercise described by Mr Milner in paragraphs 59 and 60 of his affidavit to establish the plaintiffs’ privilege claims. I accept this.

17. I should make clear that nothing in the above paragraph should be interpreted as any criticism of the task described by Mr Milner or the individuals who performed it. The privilege log identifies a vast number of documents. No doubt an even larger number of documents were reviewed during its preparation. Identifying which amongst these documents should be the subject of a privilege claim would have been a difficult exercise; no doubt – and quite reasonably – approached with an eye to avoiding the inadvertent waiver of privilege by the plaintiffs.

18. Since providing the privilege log to the defendants, the plaintiffs and their legal representatives have acted properly in promptly abandoning the privilege claims made over documents identified in it whenever they have been persuaded by arguments advanced by the defendants that those claims cannot be maintained.

19. The immediate question is how the impasse which has emerged between the plaintiffs and the defendants regarding the privilege claims the former maintains should be resolved.

20. The first defendant has argued that – as the privilege log is insufficient to establish the plaintiffs’ claims – an identified range of documents over which the defendants maintain a challenge to those claims should now simply be produced. I disagree.

21. The limited nature of the evidence adduced by the plaintiffs in support of their privilege claims is a product of the procedural history I have recounted. In light of this history, I consider it would be inappropriate for me to now find that – by reason of that limited evidence – the plaintiffs’ privilege claims are not established.

22. In my view, the plaintiffs should be given an opportunity to properly establish their privilege claims to the extent that the defendants continue to challenge them. There are at least two aspects to this exercise. It may be necessary to review the documents which are the subject of the challenged privilege claims with a view to considering whether any inference about the dominant purpose of those documents can be drawn from their content. In some cases, this may be sufficient. In others, further information regarding the circumstances in which the documents were created may be required.

23. Mr Arnott SC submitted, and I accept, that the exercise I have described may be extremely burdensome. It will no doubt prove to be an unwanted distraction at a time when the parties are preparing for the final hearing of the matter. However, neither of these considerations should prevent the defendants from challenging the plaintiffs’ privilege claims to the extent they consider it necessary and appropriate to do so in the context of the proceedings; mindful of their respective duties to assist the court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s 56(3) Civil Procedure Act 2005 (NSW).

24. No party suggested that I should undertake a review of the documents or otherwise embark upon the exercise I have described above. Rather, the parties accepted that it would be most appropriate for all disputed claims to be referred to an independent legal practitioner for resolution. That individual will be able to review the documents over which the challenged claims are made and receive such further information as the parties wish to advance in whatever form the independent legal practitioner feels is best suited to the fair and efficient resolution of any residual dispute.

25. The parties having indicated that they could formulate a series of orders governing the process to be undertaken by the independent legal practitioner, I directed that those orders be included in the short minutes of order to be provided to my Associate. Orders addressing this process were included in the orders made on 12 February 2026.

The waiver claims

26. The defendants assert that the plaintiffs have waived privilege over certain categories of documents by reason of the way they have chosen to conduct the proceedings.

27. The principles to be applied in determining whether the plaintiffs have implicitly waived privilege over any particular communication or group of communications were not in dispute between the parties. Those principles were examined by the Court of Appeal in GR Capital Group Pty Ltd v Xingfeng Australia International Investment Pty Ltd [2020] NSWCA 266 at [57], where Macfarlan JA (with whom McCallum JA and Simpson AJA agreed) summarised those principles as follows:

“(1) The test is one of inconsistency between the privilege holder’s conduct and its maintenance of the privilege, not one of general fairness or of relevance to an issue in the proceedings.

(2) Enquiring whether the privilege holder has made express or implied assertions about the contents of the confidential communications, and whether its conduct has therefore “laid open the communications to scrutiny”, assists in ensuring that the court’s focus is on inconsistency rather than simply relevance. If the privilege holder is understood to be asserting something about the contents of the communications, it is but a short step to conclude that it would be inconsistent for it to prevent those contents being scrutinised.

(3) On the other hand mere relevance of the content of the privileged communications to an issue raised in the proceedings by the privilege holder does not equate to inconsistency — something more is needed. It is of the essence of legal professional privilege that, if maintainable, it entitles a party to withhold potentially relevant documents from inspection by the other party.

(4) The determination of whether there has been an express or implied assertion about the contents of privileged communications giving rise to a relevant inconsistency is an evaluative decision to be made after consideration of the whole of the circumstances of the case. No hard and fast rules can be formulated. Those circumstances will include the degree of relevance of any advice to the issues in the proceedings, the centrality of the relevant issues in the proceedings and the likelihood of advice having been given, informed, as the High Court said in Mann v Carnell, by considerations of fairness.

(5) Having considered all those circumstances, the court must decide whether it would be inconsistent with the privilege holder’s conduct for it to maintain privilege. The line between relevance to an issue and inconsistency in this context may be very fine and therefore one on which views might well differ.”

28. Before turning to the substance of this aspect of the defendants’ argument, I note that it addressed the issues of alleged waiver at a conceptual level and not by reference to any particular document or set of representative documents. Instead, the defendants contended that privilege has been waived over certain categories of documents and that, accordingly, the plaintiffs’ claim to privilege over any documents falling within those categories should fail. The specific categories over which the defendants contended that the plaintiffs’ privilege had been waived were identified in short minutes of order provided to me during the course of argument by Ms Holmes SC, who, with Mr Murray, appeared for the SAS defendants.

29. The defendants’ approach to this aspect of the privilege argument was consistent with that favoured by Wigney J in Australian Competition and Consumer Commission the MasterCard Asia/Pacific Pt**e L**td (No 3) [2025] FCA 1043 and Ball J in Grocon Group Holdings Pty Limited v Infrastructure NSW (No 2) [2023] NSWSC 1144. As Ball J observed in the latter case (at [30]):

“Only the privilege holder knows the actual contents of the advice. Where the inconsistency is said to arise from the subject matter of the communication in respect of which privilege is claimed, it seems to me appropriate not to start with the communications but with the basis on which the inconsistency is said to arise. If the court is satisfied that it would be inconsistent for a privilege holder both to make a particular allegation or give evidence of a particular matter and claim privilege over legal advice concerning the same subject matter, then it should tailor the order for production by reference to that subject matter, leaving it to the privilege holder to produce any documents falling within that description. It should not start with the document over which privilege is claimed at its description. The former approach was the one taken by the Court of Appeal in GR Capital, and I should follow it.”

30. For the same reasons, I accept that it is appropriate for me to consider whether privilege has been waived over the categories of documents identified in the SAS defendants’ short minutes of order. However, in adopting this course, particular care must be taken to ensure that those categories:

31. are expressly confined to documents which are the subject of the implied waiver; and

32. are crafted in a manner which leaves no room for doubt as to which documents are captured by them.

33. Otherwise, the practical benefits of addressing waiver by reference to categories rather than specific documents would be significantly outweighed by the risk of any consequent orders inadvertently capturing documents over which privilege has not been waived or merely provoking further disputation between the parties.

34. I address each of the categories identified by the SAS defendants below.

KWM Advice Waiver

33. The SAS defendants asserted that privilege has been waived by the plaintiffs over the following documents or categories of documents:

“a. A copy of the “Legal Review Report” authored by King & Wood Mallesons (KWM Report) with the row titled “Pre-emptive rights applicable to APAC share transfers” unredacted.

b. Unredacted copies of any document recording the KWM Advice (KWM Advice).

c. Documents provided to or recording instructions or documents provided to KWM in connection with or for the purposes of the KWM Report or the KWM Advice.

d. Documents relied upon in or underpinning the KWM Advice.”

34. The document which is described in those proposed categories as the KWM Report is a legal review report prepared by King & Wood Mallesons (KWM) in connection with a transaction described as “Project Mercury” and dated 15 November 2024. It was made available to prospective buyers of shares in the “Target” company. Annotations on that document suggest that it was initially provided in a partially redacted form to prospective buyers but was intended to be provided in an unredacted form to any who became “preferred bidders”. I note three things in relation to the KWM Report:

35. it does contain KWM’s opinions on certain legal matters relating to the structure of the transaction described as Project Mercury, including as to whether the proposed transaction would trigger any pre-emptive rights;

36. those opinions are expressed to have been prepared by reference to a confined – and clearly identified – list of documents; and

37. the plaintiffs make no privilege claim in relation to the KWM Report or the opinions it contains. Nor is any privilege claim made over any of the documents which it identifies as forming the basis of the opinions it contains.

38. The SAS defendants contend that – by making the KWM Report available to prospective buyers – the plaintiffs have disclosed the substance of all legal advice given by KWM:

“as to the structure of the Project Mercury transaction, including in relation to the transfer of shares, the affiliate regime and pre-emptive rights and especially on whether Project Mercury would trigger the pre-emptive provisions of the Shareholders’ Deed (to the effect that ‘the better view’ was that it would not)”

and have thereby waived privilege over any such advice by operation of s 122 of the Evidence Act 1995 (NSW).

36. Relying on observations made by Wigney J in Mastercard at [98]-[99], the SAS defendants go further and say that this waiver of privilege by the plaintiffs extends not only to the KWM Report but to all communications created for the purpose of seeking advice on the topics captured by the above extract, all communications that record, refer to or reproduce any advice given by KWM in relation to those matters and all documents that might have been relied upon by KWM in giving such advice. I disagree.

37. The opinions contained in the KWM Report are clearly confined. They are based upon a clearly identified series of documents over which no privilege claim has been made. I do not accept that by providing the KWM Report to prospective purchasers the plaintiffs have disclosed the substance of any other legal advice given to the plaintiffs by KWM on the issues referred to in the extract at [35] above.

38. However, disclosure of the KWM Report has resulted in a waiver of privilege over all communications created for the purpose of seeking the KWM Report: see Mastercard at [98]. I have reached this conclusion not only because the maintenance of confidentiality in respect of such documents would be inconsistent with the disclosure of the KWM Report, but also because I consider such documents to be reasonably necessary to enable a proper understanding of its content: s 126 Evidence Act.

39. Accordingly, I do accept that there has been a waiver of privilege over all communications created for the purpose of seeking the KWM Report.

Harris Waiver

40. The SAS defendants assert that privilege has been waived by the plaintiffs over the following documents or categories of documents:

“Documents recording Ms Harris’ views on the following topics:

a. whether the Standard Deed Poll complied with the requirements of the Shareholders’ Deed;

b. whether the form of the Standard Deed Poll had previously been agreed by APAC's shareholders;

c. whether the substance of the Standard Deed Poll was adequate to protect information shared as part of Project Mercury;

d. whether the changes in the side letter with GIC Infra Holdings Pty Ltd had not altered the substance of the Standard Deed Poll;

e. whether the existing Deed Poll with the Dexus Wholesale Australian Property Fund (DWAF) would extend to DWAF’s access to the virtual data room for Project Mercury;

f. whether any transaction under Project Mercury would fall within the definition of an “Affiliate” under the Shareholders’ Deed;

g. whether the Standard Deed Poll was set up for the use of prospective purchasers and not consultants or advisers of shareholders;

h. whether clause 15.5 of the Shareholders’ Deed allows disclosure to ‘Relevant Persons’;

i. whether clause 15.4(a) allows disclosure to Relevant Persons in accordance with clause 15.4 of the Shareholders’ Deed;

j. whether, in Ms Harris’ view or on her understanding that it was DCIL’s view, the arrangements contemplated in the draft deed poll were formally superseded by an approval of a deed poll that was approved by the Board and APAC Shareholders in or after 2003.”

41. At paragraph 33 of their Second Further Amended Commercial List Statement, the plaintiffs plead that:

“DCIL understood, as at October 2024, that:

a. APAC’s shareholders had agreed on a form of deed poll that could be used, for the purposes of complying with the Shareholders’ Deed;

b. the deeds poll executed by the Interested Parties [i.e. the Deeds Poll] were in the form that had been agreed by APAC’s shareholders for the purpose of the matters pleaded at paragraph 28 above.”

42. The plaintiffs seek to establish this pleaded fact through evidence to be adduced from Nicole Harris, the first plaintiff’s General Manager, Legal. In that evidence, Ms Harris has asserted that, at certain points in time, she had a particular understanding of certain relevant matters.

43. Without rehearsing the detail of her evidence in these reasons, I note that the matters listed in (a) to (e) in the extract at [40] above are each relevant matters about which Ms Harris has claimed to have had a particular understanding of at certain points in time. I think it would be inconsistent and potentially productive unfairness for the plaintiffs to positively advance a case based on Ms Harris’ state of mind in relation to these matters while simultaneously maintaining a claim of privilege over any documents in which her views on those matters, at the relevant points in time, are recorded.

44. Accordingly, I consider the plaintiffs to have waived privilege over documents expressly recording Ms Harris’ views on the following topics:

45. whether, as at October 2024, the Standard Deed Poll complied with the requirements of the Shareholders’ Deed;

46. whether, as at October 2024, the form of the Standard Deed Poll had previously been agreed by APAC’s shareholders;

47. whether, as at October 2024, the substance of the Standard Deed Poll was adequate to protect information shared as part of Project Mercury;

48. whether, as at 1 November 2024, the changes in the side letter with GIC Infra Holdings Pty Ltd had not altered the substance of the Standard Deed Poll; and

49. whether, as at 24 March 2025, the existing Deed Poll with the Dexus Wholesale Australian Property Fund (DWAF) would extend to cover DWAF’s access to the virtual data room for Project Mercury.

50. The balance of the SAS defendants’ categories relating to the knowledge of Ms Harris rely on assertions made by her in contemporaneous correspondence as to her state of mind on relevant matters. That correspondence is included within the exhibits amongst the large body of documents referred to in Ms Harris’ affidavit evidence, but I was not taken to any particular passage of the affidavit in which she repeats these assertions as to her state of mind. I am not satisfied that the contemporaneous correspondence can properly be said to have been advanced by the plaintiffs to establish the facts pleaded at paragraph 33 of the plaintiffs’ Second Further Amended Commercial List Statement.

51. In the circumstances, I consider these matters to be in a different category to those referable to evidence directly given by Ms Harris as her state of mind on certain issues. Without more, I do not think any unfairness arises from the plaintiffs maintaining a claim of privilege over documents (if any) recording Ms Harris’ views on issues she has merely referred to in contemporaneous correspondence that happen to have been included in the exhibits to her affidavit.

The Faulkner Waiver

47. The SAS defendants assert that privilege has been waived by the plaintiffs over the following documents or categories of documents:

“Documents recording:

a. the information available to Mr Faulkner about; or

b. Mr Faulkner’s views on,

the following topics:

c. whether the sale process was being undertaken along the lines of previous sales by members of the Dexus Bloc and complied with all relevant requirements;

d. whether the selling shareholders had complied with the Shareholders’ Deed by:

i. entering into confidentiality deeds;

ii. only sharing ‘shareholder level information’ and no ‘director level information’;

e. whether Dexus and the selling shareholders had and continued to strictly abide by the restrictions imposed by the Shareholders’ Deed;

f. whether the Project Mercury process:

i. aligns with the process under the Shareholders’ Deed, including by the sharing of only permitted information with parties that entered into the strict and standard for confidentiality agreement;

ii. was being undertaken as a transfer within the Dexus Bloc, with all entities either being current clients or expected to become Dexus managed entities, and being direct holders of shares in APAC;

g. whether Dexus’ internal lawyers confirmed that Dexus had special rights under the Shareholders’ Deed that allowed it to do things that were different to regular shareholders’ deed arrangements;

h. whether the Dexus Bloc have complied with the process that:

i. the Dexus Bloc understood had been in place for a very long time;

ii. that the Dexus Bloc understood may have been followed by other APAC shareholders;

i. whether:

i. appropriate precautions were taken to ensure that APAC’s commercial operations were not prejudiced;

ii. the information provided to prospective purchasers did not include anything that would prejudice APAC’s ongoing commercial operations;

iii. the Deeds Poll put in place a robust confidentiality regime that is consistent with market practice;

iv. the Deeds Poll may be enforced directly by APAC, IFM and other APAC shareholders pursuant to cl 6.4;

v. the Deeds Poll provides effective protection for confidential information;

j. Mr Faulkner’s assessment as to whether any breach was material because:

i. APAC had not been exposed to any harm;

ii. a market standard confidentiality deed pool enforceable by the shareholders had been entered into with each potential purchaser;

iii. the nature of information shared was very limited and redacted for commercially sensitive information;

k. whether Dexus believed there had been a breach of the Shareholders’ Deed and even if there was, whether Dexus considered the breach to be material;

l. whether the Dexus airports team has operated on the basis that a template confidentiality deed poll was agreed between the shareholders for use in sales processes like Project Mercury sometime between 2009 and 2014.”

48. The conduct said by the SAS defendants to be inconsistent with maintaining a claim of privilege over documents falling within these categories arises from the denial by Mr Faulkner of allegations made against him in the proceedings to the effect that he made a range of misrepresentations or failed to disclose certain information which ought to have been disclosed by him in the context of his commercial dealings. In a short affidavit replying to the allegations made against him, Mr Faulkner variously asserts – in a somewhat formulaic manner – that he acted truthfully and in good faith “based on the information that I had available to [him] at the time and based on [his] honest understanding”.

49. It is said that by responding to the allegations made against him in this way, Mr Faulkner has – using words borrowed from Allsop J in DSE (Holdings) Pty Limited v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384 at [58] – laid open for scrutiny all of the information he had available to him at that time; including any communications over which the plaintiffs might otherwise have been able to maintain a privilege claim.

50. I do not accept that the formulaic manner in which Mr Faulkner denied the allegations made against him has resulted in the plaintiffs adopting a position inconsistent with maintaining a claim of privilege over information which might have been available to Mr Faulkner at the relevant points in time. Nor that by referring – in an arguably inadmissible manner – to what is said by him to be the consistency of his actions with the information available to him, Mr Faulkner laid open for scrutiny any material over which the plaintiffs might otherwise have been entitled to make a privilege claim.

51. Moreover, I do not think any unfairness arises from the plaintiffs’ decision to adduce evidence in response to these allegations. To the contrary, in my view it would be potentially productive unfairness if Mr Faulkner was precluded from responding to the serious factual allegations made against him unless the plaintiffs chose to abandon any legitimate claim to privilege over such information as might have been available to him at the relevant points in time.

52. In any event, I am not satisfied that the proffered categories of documents formulated by reference to “information available to Mr Faulkner about” or “Mr Faulkner’s views on” the identified topics satisfy the requirements I have identified at [30] above.

DCIL’s Views Waiver

53. The SAS defendants assert that privilege has been waived by the plaintiffs over the following documents or categories of documents:

“Documents recording:

a. the views or understanding held by DCIL about:

i. the genesis of the Standard Deed Poll;

ii. the extent of consistency between the Deeds Poll and the Standard Deed Poll;

iii. DCIL’s compliance with the Shareholders’ Deed in respect of the execution of the Deeds Poll,

…

b. legal advice to DCIL about the DCIL Subject Matters.”

54. These categories draw directly on the pleading in paragraph 33 of the plaintiffs’ Second Further Amended Commercial List Statement, which I have extracted above.

55. In advancing their argument on these categories, the SAS defendants acknowledge that the plaintiffs seek to make out the pleaded facts by adducing evidence from Ms Harris as to her state of mind – in the sense I have discussed above – but say that the pleading goes further in that it is a positive assertion of not only Ms Harris’ subjective views but also the views of DCIL, the wider corporate entity.

56. While on a strict reading of the pleading this is undoubtedly correct, the corporate entity’s state of mind must be established through a human actor. As I have noted above, the plaintiffs seek to establish this aspect of their pleaded case through evidence adduced from Ms Harris as to her state of mind at relevant times; it will stand or fall on an assessment of this aspect of her evidence. The extent of any implied waiver of privilege resulting from this aspect of the plaintiffs’ positive case should be assessed in this context. Viewed in this way, I do not think the plaintiffs should be taken to have implicitly waived privilege over a wider class of documents than those I have identified above in relation to what has been described by the SAS defendants as the Harris Waiver.

57. In any event, without making some attempt to identify the person or class of people whose state of mind is said to represent the corporate understanding of DCIS or, I am not satisfied that the proffered categories satisfy the requirements I have identified at [30] above.

Communications Waiver

58. The SAS defendants assert that privilege has been waived by the plaintiffs over the following documents or categories of documents:

“a. Communications between Ms Nicole Harris and Mr Mark Daly concerning the confidentiality provisions in the Shareholders’ Deed, use of a deed poll, the form of that deed poll, and the purportedly agreed form of deed poll.

b. Communications between Ms Nicole Harris and Ms Mischelle Asimus regarding the Standard Deed Poll.

c. Communications between Ms Nicole Harris and Mr Joel Chalhoub regarding the terms of the Deeds Poll and side letters executed by the participants in Project Mercury.

d. Communications between Mr Faulkner and Ms Harris about the Standard Deed Poll.”

59. By this category, the SAS defendants contend that privilege has been waived over communications, the subject of which have been disclosed in the plaintiffs’ affidavits. It is suggested that by disclosing the substance of the communications, it is inconsistent to withhold those communications – or any other communications reasonably necessary to understand them – from production.

60. Save for one potential issue I will return to shortly, there is no suggestion that the communications disclosed in the plaintiffs’ affidavits were themselves privileged in the sense contemplated by either of ss 118 or 119 Evidence Act. In these circumstances, it is not quite to the point that the substance of communications has been disclosed in the sense contemplated by s 122 Evidence Act. I do not accept that documents falling within the proposed categories are reasonably necessary to enable a proper understanding of the communications contained within the plaintiffs’ affidavits which are relied upon by the SAS defendants in seeking to make out this aspect of its waiver case: see s 126 Evidence Act.

61. I also do not accept that the mere reference to a non-privileged communication in an affidavit thereby results in implicit waiver of privilege over any – otherwise privileged – document or communication which refers to or contains a record of that earlier communication.

62. The one potential issue that arises in the context of this category is that Ms Harris is a lawyer, and privilege has been claimed over certain of her confidential communications made in this capacity. In these circumstances, and lest there be any suggestion that the relevant communications contained in her affidavit are otherwise said to be privileged, I’m willing to accept that there has been a waiver of privilege over:

63. documents recording the content of the meetings and conversations referred to in paragraphs 18 of the affidavit of Nicole Louise Harris sworn 23 September 2025;

64. communications between Mr Faulkner and Ms Harris prior to 4 March 2025 about the Standard Deed Poll.

The Harris Searches Waiver

63. In paragraphs 39, 65 and 151 of her affidavit, Ms Harris gave evidence of searches that she undertook of records held by the plaintiffs and – at least insofar as she perceived to be relevant – the result of those searches. To the extent that she was doing this in her capacity as a lawyer, I am satisfied that any privilege which might have attached to the results of those searches (to the extent that they have not already been disclosed) has been waived.

64. For this reason – and subject to a slight adjustment of its text – I am satisfied that privilege has been waived over the following categories identified by the SAS defendants:

“Documents comprising or recording the conduct and results of any search (or searches) undertaken or supervised by Ms Harris in respect of:

a. the search of Dexus’ electronic filing system on 26 September 2024, described at paragraph 39 of the Harris Affidavit;

b. the search of Dexus’ electronic filing system shortly after 1 November 2024 regarding previous arrangements with GIC about execution of a confidentiality deed poll and side letter, described at paragraph 65 of the Harris Affidavit;

c. search conducted by Ms Harris and other employees of Dexus Holdings for documents stored on Dexus Holdings' electronic document platforms and in Dexus Holdings' hardcopy records related to the use of confidentiality deeds with prospective purchasers of an interest in APAC, described at paragraph 151 of the Harris Affidavit”.

Orders

Orders - privilege and waiver - 12 Feb 26 - sealed (262 KB, pdf)