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EX TEMPORE Judgment

1. The principal judgment in these proceedings was handed down by Ball J on 31 August 2020: Twigg v Twigg (No 4); Lambert v Twigg Investments Pty Ltd (No 3) [2020] NSWSC 1159 (the principal judgment). His Honour found that the plaintiffs had established that the first defendant (Max Twigg) had breached his fiduciary duties to them by paying the proceeds of sale of the Twigg Group business to himself or entities controlled by him, and that, to the extent the plaintiffs could trace the proceeds of sale to assets still held by the defendants, they were held on constructive trust for the plaintiffs.
2. The principal judgment was preceded by orders made by his Honour on 3 June 2020 restraining the defendants from dealing with, amongst others, "funds deposited into bank accounts" in the name of the fifteenth defendant, Twigg Co Pty Limited (Twigg Co) up to the sum of $2.593 million. These orders were amended on 30 June 2020 to increase the figure to $3.844 million.
3. On 11 December 2020, his Honour acceded to an application made by the plaintiffs by motion filed on 30 October 2020 to reopen for the purposes of varying his Honour's reasons to find that certain assets (being a series of unlisted Australian Notes) not dealt with in the principal judgment comprised traceable proceeds: Twigg v Twigg (No 5); Lambert v Twigg Investments; Pty Ltd (No 4) [2020] NSWSC 1782.
4. The motion was listed for hearing on 7 December 2020. On 1 December 2020, a series of liquid assets consisting of interest-bearing Floating Rate Notes (the Notes) were transferred out of Twigg Co to Max Twigg.
5. It appears that on 14 December 2020, Max Twigg liquidated two of the Notes notwithstanding his Honour's principal judgment three days earlier. It does not seem to be in issue that the defendants did not inform the plaintiffs that the Notes had been transferred or liquidated.
6. On 18 December 2020, Ball J made final orders, including orders that Twigg Co held the Notes on constructive trust for the plaintiffs.
7. The defendants have appealed the principal judgment. The appeal has been heard and the Court of Appeal is presently reserved.
8. On 2 February 2021, Payne JA dealt with an application by the defendants for a stay of the principal judgment. On 12 April 2021, his Honour made orders by consent compelling the defendants to produce documents.
9. Documents have been produced.
10. Amongst others, they reveal that the Notes (which have been held to the be the property of the plaintiffs) were apparently transferred out of Twigg Co to or for the benefit of Max Twigg personally on 1 December 2020.
11. The defendants claim privilege over some of the documents, relying for the most part on s 119 of the Evidence Act 1995 (NSW) (the Act), which provides: 119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of - (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
12. In respect of two documents, they rely on s 118 of the Act, which provides: 118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of - (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
13. By motion filed by the plaintiffs on 21 April 2021, they seek orders that the defendants do not transfer, dispose of, or otherwise deal with the Notes. The motion is returnable before Ball J for directions on 28 May 2021.
14. The parties are agreed that a Judge other than Ball J, who is seized with what remains of these proceedings at first instance, should determine whether the documents claimed to be privileged by the defendants are prima facie privileged (that is, before considering whether they are subject to any exception such as waiver).
15. On 30 April 2021, Ball J made certain orders to facilitate that determination.
16. The Court has been provided with unredacted versions of the documents, which I have examined, and the parties provided me with written submissions. The plaintiffs' ability to make submissions is of course limited.
17. Save in respect of the two documents where s 118 of the Act is relied upon, the sole question is whether the documents were prepared for the dominant purpose of the client being provided with professional legal services relating to the proceedings.
18. Mr Christiaan Roberts (Roberts) is the plaintiffs' solicitor. Mr Corey Radcliff (Radcliff) is the defendants' solicitor. Radcliff practises in Queensland. The defendants also have Sydney solicitors. Pitcher Partners is a firm of accountants who have at all material times been retained by the defendants. Adam Stanley (Stanley) is an executive director of Pitcher Partners. Alex King (King) is a member of Pitcher Partners.
19. The following affidavits were read on the application: 1. Radcliff sworn 28 April 2021 and 20 May 2021; and 2. Roberts sworn 20 April 2021.
20. Counsel for the plaintiffs submitted that the Radcliff affidavits do not prove that the documents are privileged and that the Court should reject the claim without inspecting the documents. The submission that the affidavits do not in themselves sufficiently establish privilege is not without substance, but I nevertheless consider that it is appropriate, given that the documents have been produced, to rule on them, having regard to, rather than irrespective of, their contents, especially given the nature of the general controversy between these parties.
21. The documents have been put in chronological sequence and have been paginated from pages 1 to 28. The Court has inspected the documents for the purpose of ruling on their status. [1] The following are my rulings: