ty Ltd - Ninth Defendant/Thirteenth Cross Defendant
Vision Motor Sport Pty Ltd - Tenth Defendant/Fourteenth Cross Defendant
Twigg Motor Racing Pty Ltd - Eleventh Defendant/Fifteenth Cross Defendant
Surf Street Holdings Pty Ltd - Twelfth Defendant/Sixteenth Cross Defendant
W & E Twigg Pty Ltd - Thirteenth Defendant/Seventeenth Cross Defendant
Frances Lambert - Fourteenth Defendant/Cross-Claimant
Twigg Co Pty Limited - Fifteenth Defendant
Representation: Counsel:
[2]
M R Elliott SC - Plaintiffs/First to Fourth Cross Defendants
P Miller - First to Thirteenth and Fifteenth Defendants/Fifth to Seventeenth Cross Defendants
[3]
Solicitors:
Roberts and Partners Lawyers - Plaintiffs/First to Fourth Cross Defendants
O'Loughlin Westhoff - First to Thirteenth and Fifteenth Defendants/Fifth to Seventeenth Cross Defendants
File Number(s): 2019/71329
[4]
Judgment
This is the second series of rulings on privilege claims made by the defendants. A brief background was provided in my first judgment and I will not repeat it here: see Dianne Twigg v Maxwell James Twigg (Privilege ruling) [2021] NSWSC 595 (the first ruling). Defined terms used in the first ruling are used here.
One correction that needs to be made to what I said in the first ruling, however, is that King (who was referred to in para [18] as a member of Pitcher Partners) is in fact not from Pitcher Partners Investment Services Pty Ltd (Pitcher Partners) but a solicitor and principal of the Melbourne law firm, King & Collins, who have, at all material times, acted for Pitcher Partners.
The contest concerning whether the defendants should be restrained from transferring, disposing of, or otherwise dealing with the Notes is fixed before Ball J on 7 July 2021. His Honour commences a well-earned period of leave shortly thereafter.
Following the handing down of the principal judgment on 31 August 2020, and after submissions from the parties on costs, Ball J made final orders (the final orders) in the proceedings on 18 December 2020: see Twigg v Twigg (No 6); Lambert v Twigg Investments Pty Ltd (No 5) [2020] NSWSC 1856.
Amongst the orders made by his Honour, were the following orders in relation to Twigg Investments No 2 Trust:
14 Declaration that the first defendant [Max Twigg], in his capacity as trustee of the Twigg Investments No 2 Trust, holds all assets of the Twigg Investments No 2 Trust save for $499,755.73 on trust for the first, second and third plaintiffs in the following proportions:
a. First plaintiff: 24.86%
b. Second plaintiff: 40.46%
c. Third plaintiff: 34.68%.
15 Within 5 business days of the date of this order, the first defendant is to transfer the assets of the Twigg Investments No 2 Trust (save for an amount of $499,755.73 out of the balance of the funds held in the ANZ operating account of that trust) to the first, second and third plaintiffs.
On 2 February 2021, upon certain undertakings having been given by the defendants, Payne JA made orders staying the final orders of Ball J pending the appeal. One of the undertakings given by the defendants and numbered 2(i) (the Undertaking) was that they would:
[I]nstruct Pitcher Partners to prepare documentation of the kind which it customarily prepares for reporting to the appellants the value, status and movements of the assets held by the Fourteenth Appellant [Twigg Co Pty Limited] and the Twigg Investment Trust No 2 in such a way as to distinguish between the assets which were found by Ball J to be held on trust for the respondents and the remaining assets.
The Court of Appeal remains reserved on the appeal from the principal judgment.
Pitcher Partners have, at all material times, managed assets of the Twigg Group, including assets of the Twigg Investments No 2 Trust.
Pitcher Partners are accountants, not lawyers. They provide professional accounting and financial services, not professional legal services. As mentioned earlier, King & Collins have represented them.
On 5 May 2021, the plaintiffs caused to be served on Max Twigg and the other defendants a Notice to Produce (the Notice to Produce).
On 6 May 2021, the plaintiffs issued subpoenas to King & Collins (the K&C subpoena), and to Pitcher Partners (the PP subpoena) in the same terms as the K&C subpoena.
The Notice to Produce, the K&C subpoena and the PP subpoena, relevantly, required production of documents concerning the dealings with the Notes, Max Twigg's bank statements, Radcliff's trust account ledger, and Twigg Co Pty Limited's financial statements from 30 June 2020. More importantly, for present purposes, they required production of:
All documents, including communications between the first defendant, Radcliffs, Pitcher Partners and King & Collins, relating to the preparation and provision of the documents required by order 2(i) made by Payne JA on 2 February 2021.
The communication sent by Radcliff to King & Collins on 7 April 2021 (referred to in King's email to Roberts and Partners Lawyers on 7 April 2021 at 5.38 PM) by which the first defendant refused to authorise Pitcher Partners to provide documents to Roberts and Partners Lawyers.
Section 117 of the Evidence Act 1995 (NSW) (the Act) defines confidential communication and confidential document as:
confidential communication means a communication made in such circumstances that, when it was made -
(a) the person who made it, or
(b) the person to whom it was made,
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
confidential document means a document prepared in such circumstances that, when it was prepared -
(a) the person who prepared it, or
(b) the person for whom it was prepared,
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
References below to sections are references to the Act, unless the context indicates otherwise.
Sections 118 and 119 provide:
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.
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.
The defendants claim privilege over a significant number of documents produced under the Notice to Produce, the K&C subpoena and the PP subpoena under either s 118 or 119, although their written submissions do not identify which sections are relied upon in relation to each, or categories, of the documents. The defendants have abandoned a number of manifestly untenable claims.
The documents have been separated, respectively, into those produced under the Notice to Produce, the K&C subpoena and the PP subpoena. The documents in each category have been separately paginated, starting at page 1. The claims for privilege are supported, respectively, by three affidavits of Radcliff, one affirmed 15 June and the others on 21 June 2021.
Pitcher Partners themselves do not assert any privilege. Indeed, King & Collins, on their behalf, have expressly taken the position in correspondence, in my view (for reasons which will follow) correctly, that communications between the defendants' lawyers and them about the interpretation of the orders, and how they apply to the defendants and Pitcher Partners, cannot be privileged.
[5]
RULINGS
Where in these rulings, I refer to a document as having been brought into existence for the purpose of complying with the final orders or the Undertaking, this is a shorthand way of expressing the conclusion that there was no obligation of non-disclosure between the defendants and Pitcher Partners for the reasons which I have articulated earlier.
Additionally, and separately, in so far as the communications between the defendants' lawyers and Pitcher Partners or its lawyers, concerning compliance with the final orders and the Undertaking were for the purposes of obtaining professional services, they were for professional financial or accounting ones, not legal ones, and certainly not dominantly for legal ones.
There are numerous documents which have the Queensland time signature which differs by an hour from New South Wales and is attributable to the fact that Queensland does not recognise daylight savings time. I have ignored the differences.
Where I refer to a document as having been "brought into existence" this is to be taken as connoting the making of a communication by way of it.
Where I refer to an email, I have identified those who appear to be the principal parties to it, and have not, in each case, identified every party.
[6]
Pages 1-3
Email from Radcliff to King and Stanley dated 20 December 2020 at 10:43 AM in connection with the then proposed Motion for a stay in the Court of Appeal. The document sought to enlist Pitcher Partners' assistance to enable the defendants to promote the application. This was for the dominant purpose of the defendants being provided with professional legal services and did not concern compliance with the final orders.
The same document appears at page 55 of the K&C subpoena bundle with the time of 11:43 AM.
This document is privileged.
[7]
Pages 4-12
Email from Stanley to Radcliff and Max Twigg dated 1 March 2021 at 4:21 PM attaching a draft version of the Twigg Group asset segregation per Ball J on 18 December 2020 for assets managed by Pitcher Partners. This email is duplicated at pages 222-230 of the K&C subpoena bundle.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[8]
Page 23
Email from King to Radcliff and Suzanna Costello (Costello) of Radcliffs dated 23 March 2021 at 11:06 AM asking how he should deal with a request by the plaintiffs for production of documents asserted to be necessary for ensuring that further mixing of funds and assets do not occur, and threatening a Notice of Motion seeking production. This email is duplicated at page 231 of the K&C subpoena bundle.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[9]
Page 40
Two emails, the first from Radcliff to King and Costello dated 23 March 2021 at 12:34 PM, and the second from King to Radcliff and Costello in response dated 23 March 2021 at 1:10 PM, concerning how Radcliff, on behalf of the defendants, would respond to a request by the plaintiffs for an update and for the provision of documents produced by Pitcher Partners recording the segregation of the assets, and current account and asset balances. The first email includes a statement by Radcliff that he would respond to Roberts and copy in King, while the second includes a request by King to see a draft of the response. These emails are duplicated at page 248 of the K&C subpoena bundle.
These documents were:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the Undertaking;
2. in so far as they were brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services;
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice; and
4. related to a request on behalf of Pitcher Partners for its own protection, in respect of which it claims no privilege.
They are not privileged.
[10]
Page 48
Email from King to Radcliff and Costello dated 23 March 2021 at 9:32 PM concerning a proposed possible response by King to a direct request for information from the plaintiffs about the segregation of assets determined by Ball J. This email is duplicated at page 267 of the K&C subpoena bundle.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the Undertaking;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services;
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice; and
4. related to a request on behalf of Pitcher Partners for its own protection, in respect of which it claims no privilege.
It is not privileged.
[11]
Page 60
Email from Radcliff to King and Costello dated 24 March 2021 at 8:46 AM about sending a copy of Radcliff's response to the plaintiffs. This email is duplicated at page 267 of the K&C subpoena bundle.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the Undertaking;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services;
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice; and
4. related to a request on behalf of Pitcher Partners for its own protection, in respect of which it claims no privilege.
It is not privileged.
[12]
Page 68
Email from King to Radcliff 24 March 2021 at 9:45 AM which simply says "Thanks, Corey". This email is duplicated at page 277 of the K&C subpoena bundle.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the Undertaking;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services;
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice; and
4. related to a request on behalf of Pitcher Partners for its own protection, in respect of which it claims no privilege.
It is not privileged.
[13]
Page 77
Two emails, the first from Stanley to Radcliff and Max Twigg dated 1 March 2021 at 5:21 PM, and the second from King to Radcliff dated 24 March 2021 at 9:48 AM. These emails are duplicated at page 288 of the K&C subpoena bundle.
These documents were:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the Undertaking;
2. in so far as they were brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services;
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice; and
4. related to a request on behalf of Pitcher Partners for its own protection, in respect of which it claims no privilege.
They are not privileged.
[14]
Page 87
Email from Radcliff to King dated 24 March 2021 at 10:02 AM. This email is duplicated at page 298 of the K&C subpoena bundle.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the Undertaking;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services;
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice; and
4. related to a request on behalf of Pitcher Partners for its own protection, in respect of which it claims no privilege.
It is not privileged.
[15]
Page 90
Email from King to Radcliff dated 24 March 2021 at 12:21 PM. This email is duplicated at page 300 of the K&C subpoena bundle.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the Undertaking;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services;
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice; and
4. related to Pitcher Partners acting for its own protection.
It is not privileged.
[16]
Page 93
Email from Radcliff to King dated 24 March 2021 at 12:48 PM concerning a difference which had arisen between them as to dealings with Roberts and included a requirement sought to be imposed by Radcliff that King withdraw a communication to Roberts. This email is duplicated at page 303 of the K&C subpoena bundle.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the Undertaking;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[17]
Page 112
Email from King to Radcliff dated 24 March 2021 at 1:32 PM. It relates to an alleged agreement between Radcliff and King about how to respond to Roberts, in which King asserts his position. This email is duplicated at page 322 of the K&C subpoena bundle.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the Undertaking;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[18]
Page 113
Email from King to Radcliff dated 24 March 2021 at 1:53 PM. This email is duplicated at page 323 of the K&C subpoena bundle.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the Undertaking;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[19]
Page 121
Email from Radcliff to King dated 24 March 2021 at 1:44 PM relating to an alleged agreement as to how to respond to Roberts. This email appears at page 142 with a slightly different time signature. This email is also duplicated at page 333 of the K&C subpoena bundle.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the Undertaking;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[20]
Page 142
Email from King to Radcliff dated 24 March 2021 at 1:46 PM relating to a difference which had arisen between them in connection with dealing with Roberts, in which King asserts his position.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the Undertaking;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[21]
Page 152
Email from King to Radcliff and Costello dated 31 March 2021 at 9:30 AM in which King sought confirmation that an amount remitted to Max Twigg was in accordance with the 18 December 2020 orders, to enable King to respond to a request for information from Roberts.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[22]
Page 154
Email from Stanley to King dated 26 March 2021 at 5:22 PM, amongst others, attaching segregation schedules.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[23]
Page 156
Email from Radcliff to King and Costello dated 31 March 2021 at 9:39 AM about disclosure of information to Roberts.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[24]
Page 164
Email from King to Radcliff dated 31 March 2021 at 10:00 AM about reviewing a draft proposed response by King to Roberts.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the Undertaking;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[25]
Page 168
Email from King to Radcliff and Costello dated 31 March 2021 at 5:25 PM seeking confirmation about a remittance in the context of the 18 December 2020 orders of Ball J.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[26]
Page 174
Email from King to Radcliff and Costello dated 31 March 2021 at 5:33 PM setting out a proposed draft response to an email from Roberts.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[27]
Page 188
Email from Radcliff to King and Costello dated 1 April 2021 at 9:16 AM apparently in relation to the remittance referred to on page 168. The email is difficult to understand as it appears to contain an infelicity.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[28]
Page 195
Email from King to Radcliff dated 1 April 2021 at 9:59 AM in response to Radcliff's email of 1 April 2021 at 9:16 AM (page 188).
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[29]
Pages 218-219
Two emails, the first from King to Stanley dated 7 April 2021 at 12:15 PM, and the second from King to Radcliff dated 17 April 2021 at 12:17 PM, enclosing a draft email from King to Roberts.
These documents were:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as they were brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
They are not privileged.
[30]
Page 237
Email from Radcliff to King dated 7 April 2021 at 12:43 PM concerning disclosure of information by King to Roberts.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[31]
Page 251
Email from King to Radcliff dated 7 April 2021 at 2:28 PM enclosing the same draft as King sent to Stanley at pages 218-219.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[32]
Page 254
Email from King to Radcliff dated 7 April 2021 at 2:35 PM sending a revised draft response from King to Roberts.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[33]
Page 264
Email from Radcliff to King dated 7 April 2021 at 3:49 PM asserting the defendant's (presumably Max Twigg's) claims of legal professional privilege over all communications with King & Collins about the interpretation of the orders and how they apply to Max Twigg and Pitcher Partners.
This document was not brought into existence for the dominant purpose of the defendant being provided with professional legal services or legal advice.
It is not privileged.
[34]
Page 267
Email from King to Radcliff dated 7 April 2021 at 4:08 PM denying the validity of the asserted claim for legal professional privilege.
This document was not brought into existence for the dominant purpose of the defendant being provided with professional legal services or legal advice.
It is not privileged.
[35]
Page 271
Email from Radcliff to King dated 7 April 2021 at 4:19 PM drawing King's attention to s 119 and asserting that he will hold King responsible for any breach of privilege which has been claimed.
This document was not brought into existence for the dominant purpose of the defendant being provided with professional legal services or legal advice.
It is not privileged.
[36]
Page 274
Email from King to Radcliff dated 7 April 2021 at 4:23 PM requesting a copy of my orders in the first ruling.
This document was not brought into existence for the dominant purpose of the defendant being provided with professional legal services or legal advice.
It is not privileged.
[37]
Page 279
Email from Radcliff to Stanley dated 16 April 2021 at 5:16 PM requesting copies in Word/Excel form of financial information of the Twigg Investments No 2 Trust and Twigg Co Pty Limited.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the Undertaking;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[38]
Page 299
Two emails, the first from Stanley to Radcliff dated 20 April 2021 at 8:33 AM, asking if Radcliff wanted a Word version of the documents, and the second a reply from Radcliff to Stanley dated 20 April 2021 at 8:38 AM saying "Yes please".
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the Undertaking;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[39]
Page 308
Email from King to Radcliff and Costello dated 26 April 2021 at 10:29 PM in relation to what funds Pitcher Partners could remit and from which source of funds, in response to an email from Roberts to King seeking information and asserting that certain withdrawals were a breach of a freezing order.
This email was not written for the dominant purpose of the defendants being provided with professional legal services or legal advice, but for the dominant purpose of Pitcher Partners seeking to protect its own interest.
It is not privileged.
[40]
Page 315
Two emails, the first from Radcliff to King and Costello dated 27 April 2021 at 6:51 AM, and the second from King to Radcliff and Costello in response dated 27 April 2021 at 7:08 AM. Parts of these concern what funds may be dispersed by Pitcher Partners. Those parts of them are not privileged. This includes the first sentence of the 6:51 AM email, and the second paragraph of the 7:08 AM email.
The remainder of the emails were written for the dominant purpose of the preparation of an affidavit in the present contest, and are privileged.
[41]
Page 318
Email from Radcliff to King, Costello, Stanley, Greg Metter (Metter) of King & Collins, and Stephen Schonberg (Schonberg) of Pitcher Partners, dated 27 April 2021 at 1:33 PM. This email was written for the dominant purpose of the preparation of an affidavit in the present contest, and is privileged.
[42]
Page 322
Email from Radcliff to King and Costello dated 29 April 2021 at 10:55 AM concerning Twigg Co Pty Limited's assets and the operation of "current orders".
It was not written for the dominant purpose of the defendants obtaining professional legal services or legal advice.
It is not privileged.
[43]
Pages 7-8
Two emails, the first from Radcliff to Stanley dated 20 November 2020 at 2:52 PM, and the second from Radcliff to Stanley dated 20 November 2020 at 4:17 PM.
These documents were:
1. brought into existence in connection with, and for the dominant purpose of formulation of, or compliance with (or both), the final orders;
2. in so far as they were brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
They are not privileged.
[44]
Pages 35-38
Three emails:
1. the first from Metter to Stanley and Schonberg dated 15 December 2020 at 2:07 PM;
2. the second from King to Stanley and Schonberg dated 15 December 2020 at 4:17 PM; and
3. the third from King to Radcliff dated 15 December 2020 at 4:53 PM.
These documents were:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders;
2. in so far as they were brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
They are not privileged.
[45]
Page 39
Two emails, the first from King to Radcliff dated 15 December 2021 3:53 PM, attaching an email from King to Stanley. This document was brought into existence for the dominant purpose of the defendants being provided with professional legal services in relation to a possible stay.
It is privileged.
The second email is from Radcliff to King dated 15 December 2020 at 6:10 PM concerning an application to the Court of Appeal for a stay.
This document was also brought into existence for the dominant purpose of the defendants being provided with professional legal services in relation to a possible stay.
It is privileged.
[46]
Page 46
Email from King to Radcliff dated 18 December 2020 at 3:49 PM.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[47]
Page 51
Email from Radcliff to King dated 18 December 2020 at 3:52 PM.
This document was:
1. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
2. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[48]
Pages 55-57
Email from Radcliff to King and Stanley dated 20 December 2020 at 11:43 AM in relation to the stay. This email, except for the first two lines of the second paragraph and the penultimate paragraph commencing with the words "We had…", was prepared for the dominant purpose of the defendants being provided with professional legal services in relation to a possible stay. Those parts of it only are privileged.
[49]
Pages 58-59
Email from Radcliff to King dated 21 December 2020 at 12:06 PM stating "orders attached".
The email itself was not prepared for the dominant purpose of the defendants being provided with professional legal services or legal advice. In so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services. However, the email appears to attach a copy of the email of 20 December 2020 from Radcliff to King (at page 55-57) parts of which I have ruled to be privileged, and which ruling applies to those parts.
[50]
Page 87
Email from King to Radcliff dated 22 December 2020 at 2:54 PM relating to a request to transfer funds.
This document was:
1. In so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
2. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[51]
Page 98
Email from Radcliff to King dated 29 December 2021 at 3:57 PM concerning the effect of the orders.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[52]
Page 103
Email from Radcliff to King dated 12 January 2021 at 11:08 AM. All of the email, except the penultimate sentence, was prepared for the dominant purpose of the defendants being provided with professional legal services in relation to a possible stay. Those parts of it only are privileged.
[53]
Page 160
Email from Schonberg to Radcliff and King dated 18 January 2021 at 10:53 AM relating to possible "tax consequences of the asset transfers per the orders", which refers to an attached spreadsheet.
This document, including the spreadsheet which appears to be at pages 173-174, was:
1. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
2. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[54]
Page 163
Email from Radcliff to Schonberg and King dated 19 January 2021 at 6:02 PM in relation to the stay. It appears to attach a schedule which makes references to an affidavit. It was prepared for the dominant purpose of the defendants being provided with professional legal services in relation to a possible stay.
It is privileged.
[55]
Page 167
Email from Schonberg to Radcliff and King dated 28 January 2021 at 2:43 PM attaching a letter and schedule (which appears to be the spreadsheet referred to above). It refers to an attached letter which I have not been able to find in the bundle. I infer that the email, whatever letter was attached, and schedule, were prepared for the dominant purpose of the defendants being provided with professional legal services in relation to a possible stay.
I rule them to be privileged.
[56]
Page 175
Email from Radcliff to King dated 2 February 2021 at 9:36 AM reporting on an agreement on orders to deal with the stay Motion.
This document was:
1. brought into existence, in part, in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[57]
Page 176
Email from King to Radcliff dated 2 February 2021 at 9:37 AM in which King says "Thanks, Corey, good news and well done."
This document was not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[58]
Page 178
Email from Radcliff to King dated 2 February 2021 at 10:33 AM concerning the attached orders as made and their operation.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[59]
Pages 184-187
Email from Radcliff to King dated 2 February at 2:00 PM attaching the orders made by Payne JA.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[60]
Page 188
Email from Radcliff to King dated 4 February 2021 at 4:49 PM attaching an email from Roberts to Radcliff at 11:01 AM relating to compliance with undertakings given to the Court of Appeal.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, complying with undertakings given to the Court of Appeal;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[61]
Page 190
Email from King to Radcliff dated 16 February 2021 at 1:28 PM relating to an email from Roberts to King, noting that they have received no update, and no documents, from Pitcher Partners, and offering assistance in identifying assets which were held on trust.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[62]
Pages 194-195
Two emails, the first from Costello to Stanley dated 18 February 2021 at 10:38 AM, and the second from Costello to King dated 24 February 2021 at 3:02 PM, in relation to compliance with the final orders.
These documents were:
1. in so far as they were brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
2. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
They are not privileged.
[63]
Page 18
Email from Stanley to Radcliff and Max Twigg dated 23 November 2020 at 8:39 AM.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[64]
Page 89
Email from Radcliff to Stanley dated 25 November 2020 at 8:25 AM.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[65]
Page 90
Email from Stanley to Savita Kaur (Kaur), of Pitcher Partners, dated 25 November 2020 at 8:36 AM.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[66]
Page 152
Email from Kaur to Stanley dated 25 November 2020 at 9:38 AM attaching financial information and an email from Stanley to Radcliff, copying Max Twigg, dated 25 November 2020 at 2:34 PM forwarding it.
These documents were:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders;
2. in so far as they were brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
They are not privileged.
[67]
Page 154
Email from Stanley to Radcliff dated 23 November 2020 at 7:39 AM.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal s services or legal advice.
It is not privileged.
[68]
Page 231
Email from Radcliff to King dated 1 December 2020 at 1:26 PM marked "confidential and legal privilege claimed".
Email from King to Radcliff dated 1 December 2020 at 1:35 PM responding "Again, much appreciated".
These documents were:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders;
2. in so far as they were brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
Notwithstanding the marking, they are not privileged.
[69]
Page 937
Two emails, the first from Norman Valenzuela (Valenzuela), of Pitcher Partners, to Radcliff and Max Twigg dated 19 January 2021 at 3:17 PM and the second from Radcliff to Valenzuela and Max Twigg dated 19 January 2021 at 5:14 PM.
These documents were:
1. in so far as they were brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
2. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
They are not privileged.
[70]
Page 939
Two emails, the first from Max Twigg to Radcliff dated 15 December 2020 at 2:32 PM, and the second from Radcliff to Schonberg, copying Max Twigg, dated 29 December 2020 at 4:08 PM.
These documents were:
1. in so far as they were brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
2. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
They are not privileged.
[71]
Page 954
Two emails, the first from Radcliff to King dated 12 January 2021 at 11:08 AM, and the second from Schonberg to Radcliff and King dated 28 January 2021 at 2:43 PM.
These documents were:
1. in so far as they were brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
2. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
They are not privileged.
[72]
Page 1005
Email from King to Radcliff dated 4 February 2021 at 10:15 AM.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[73]
Pages 1007-1008
Email from King to Radcliff, and others, dated 4 February 2021 at 10:17 AM forwarding an email from Radcliff to Stanley, and others, dated 3 February 2021 at 4:09 PM and an email from Radcliff to Stanley, and others, dated 3 February 2021 at 5:27 PM.
These documents were:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as they were brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
They are not privileged.
[74]
Page 1375
Email from Costello to Stanley, Valenzuela, King and Radcliff dated 15 March 2021 at 3:40 PM concerning compliance with orders made by Payne JA.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the orders of Payne JA;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[75]
Page 1376
Email from Radcliff to Stanley and Max Twigg dated 1 March 2021 at 8:35 AM responding to an email from Stanley at 7:22 AM.
These documents were:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as they were brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
They are not privileged.
[76]
Page 1376-1377
Email from Radcliff to Stanley dated 4 February 2021 at 1:45 PM.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the orders of Payne JA;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[77]
Page 1378
Email from King to Radcliff dated 4 February 2021 at 9:12 AM in relation to requests to Pitcher Partners to transfer, disperse, etc. any property from any Twigg entity or account.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[78]
Page 1380
Email from Stanley to Tania Ziogas (Ziogas) and Aliona Kirdzei (Kirdzei), presumably of Pitcher Partners, dated 15 March 2021 at 6:21 PM.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[79]
Pages 1479-1480
Two emails, the first from Radcliff to King and Costello dated 12 April 2021 at 10:21 AM, and the second from Stanley to Ziogas dated 12 April 2021 at 11:07 AM, relating to a cash transactions by settlement report, a contributions and withdrawals report and a portfolio valuation report.
These documents were:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as they were brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
They are not privileged.
[80]
Page 1482
Email from Ziogas to Stanley dated 12 April 2021 at 11:34 AM attaching reports.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[81]
Page 1498
Email from Stanley to Radcliff, Max Twigg, King, Costello and Ziogas dated 12 April 2021 at 12:11 PM concerning attached reports.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[82]
Page 1562
Email from Radcliff to Stanley, Max Twigg, King, Costello and Ziogas dated 12 April 2021 at 12:14 PM concerning attached reports.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[83]
Page 1570
Email from Stanley to Ziogas dated 12 April 2021 at 1:45 PM concerning transfer of funds.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[84]
Page 1575
Email from Costello to Stanley, King and Radcliff dated 12 April 2011 at 2:26 PM containing the requests for the payment of invoices, from the funds determined by Ball J to be held on trust, to Roberts and Partners' trust account.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[85]
Page 1582
Two emails, the first from Stanley to Ziogas and Kirdzei, dated 12 April 2021 at 12:29 PM, and the second from Kirdzei to Stanley and Ziogas dated 13 April 2021 at 8:03 AM.
These documents were:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as they were brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
They are not privileged.
[86]
Page 1587
Email from Stanley to Ziogas and Kirdzei dated 13 April 2021 at 9:33 AM concerning reports.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[87]
Page 1592
Email from Stanley to Radcliff, Max Twigg, King, Costello and Valenzuela dated 14 April 2021 at 8:19 AM relating to the split of assets.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[88]
Page 1672
Email from King to Radcliff, Valenzuela, Costello and Stanley dated 14 April 2021 at 11:17 AM concerning Pitcher Partners' risk by processing payments sought by the defendants.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[89]
Page 1715
Email from Radcliff to King, Valenzuela, Costello, Stanley and Max Twigg dated 19 April 2021 at 9:23 AM responding to a request by Pitcher Partners for Radcliff to communicate with Roberts to obtain confirmation that Pitcher Partners was not at risk by processing payments sought by the defendants.
This document was:
1. brought into existence in connection with, and for the dominant purpose of, compliance with the final orders or the Undertaking or both;
2. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
3. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
[90]
Page 1811
Email from Costello to Schonberg dated 21 April 2021 at 10:58 AM in relation to a Motion filed by the defendants on 20 April 2021.
This was brought into existence for the dominant purpose of the defendants being provided with professional legal services in relation to the Motion.
It is privileged.
[91]
Page 1817
Two emails, the first from King to Costello, Radcliff and others dated 21 April 2021 at 11:02 AM, and the second from Costello to King and Radcliff dated 21 April 2021 at 11:11 AM concerning the defendants' Motion.
They were brought into existence for the dominant purpose of the defendants being provided with professional legal services in relation to the Motion.
They are privileged.
[92]
Page 1833
Email from Schonberg to Costello, Stanley, Radcliff and King dated 21 April 2021 at 12:34 PM providing a transaction report.
This document and the particular copy of the transaction report were brought into existence for the dominant purpose of the defendants being provided with professional legal services in relation to the Motion.
It is privileged.
[93]
Page 1842
Email from Costello to Schonberg, Stanley, Radcliff, King and Valenzuela dated 21 April 2021 at 1:03 PM.
This document was brought into existence for the dominant purpose of the defendants being provided with professional legal services in relation to the Motion.
It is privileged.
[94]
Page 1851
Email from Schonberg to Costello, Stanley, Radcliff, King and Valenzuela dated 21 April 2021 at 4:53 PM.
This document was brought into existence for the dominant purpose of the defendants being provided with professional legal services in relation to the Motion.
It is privileged.
[95]
Page 1926
Email from Radcliff to Stanley, Schonberg and King dated 27 April 2021 at 3:15 PM in connection with compliance with order 2 made on 21 April 2021.
This document:
1. in so far as it was brought into existence for the purpose of the defendants being provided with professional services, they were not legal but financial and accounting services; and
2. not brought into existence for the dominant purpose of the defendants being provided with professional legal services or legal advice.
It is not privileged.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 05 July 2021
Given the impending hearing on 7 July 2021 before Ball J, which the plaintiffs are, for obvious reasons, keen to maintain, the rulings are attendant with urgency. As will appear below, the Court's task has not been made any easier by the defendants.
The matter was listed before me for directions on 18 June 2021. The defendants did not appear. Those representing them gave an explanation for the failure which is unsatisfactory but I will not say anything more about that.
I directed the defendants to provide, in advance of the hearing, a hard copy of the documents, there being no issue that the Court should inspect them. The documents were delivered, but they were contained in over-filled and unworkable ring binders, and had to be reconfigured into working binders. The result was that the Court's preparatory work was hindered.
The volume of documentation is considerable: 336 pages were produced under the Notice to Produce, 650 pages were produced by King & Collins and 2070 pages were produced by Pitcher Partners. That which was delivered includes numerous duplicates. In some cases, this is because the same document is part of numerous separate email chains, but in many other instances, they are simply surplus duplicates. The defendants ultimately provided indexes to the documents identifying surplus duplicates.
The material also contains documents previously ruled upon. These were also ultimately identified in the indexes.
There are numerous examples where a particular copy may be privileged, but has already been disclosed to the plaintiffs or is a plaintiffs' document, with the consequence that a ruling as to its status is of no practical utility. I have tried to identify which documents fall into this last category and have not ruled upon them. Counsel for the defendants agreed with this approach. I have made an effort not to rule on the same document multiple times.
There are numerous instances where the same document has been produced under more than one of the Notice to Produce, the K&C subpoena and the PP subpoena. The indexes do not extend to identifying which these are. The parties should proceed on the footing that a ruling made on a particular document applies to that document wherever it is to be found in the bundles.
One matter of concern is that, despite the approach that has been taken to production, some documents returned by King & Collins and Pitcher Partners to which the defendants, or their lawyers, were party have seemingly not been produced by the defendants.
I may have failed to rule on a pertinent document as a result of the difficulties earlier mentioned.
The documents can be divided into the following four broad categories, namely, documents concerning:
1. the formulation of the final orders made by Ball J;
2. compliance with the principal judgment and the orders of Ball J;
3. stay applications brought by the defendants before Ball J and Payne JA;
4. complying with the Undertaking.
There is a matter of substance which, in my opinion, on its own determines that the defendants' claim for privilege cannot be sustained in relation to communications between them, or on their behalf, and Pitcher Partners or King on that firm's behalf, in connection with the formulation of the final orders, compliance with the final orders and, even more so, in connection with the exercise of complying with the Undertaking.
Whilst the final orders were made on 18 December 2020, the principal judgment determining the existence of the remedial trust was given on 31 August 2020.
From 31 August 2020, and certainly from 18 December 2020, Pitcher Partners, whatever may have been the position earlier, were managing the assets (or should have been doing so) on behalf of the remedial trust, which had been declared in favour of the plaintiffs. Pitcher Partners did not terminate their retainer; they carried on. It would not be appropriate for them, while the declaration stands, to act as if the beneficiaries of the trust whose assets they are retained to manage, were their opponents.
Although it plays no role for the purposes of the present evidentiary dispute, it is appropriate to observe that in equity, as beneficiaries of the remedial trust, the plaintiffs would have been entitled to require their trustee to give them information concerning its administration: Spellson v George (1987) 11 NSWLR 300.
A declaration is not susceptible to a stay: see Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342; John Anthony Jeans v John Richard Bruce & Ors [2004] NSWSC 758; Arnhem Land Aboriginal Land Trust v Northern Territory of Australia (2007) 157 FCR 255; Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors [2009] NSWSC 1377; Talifero v Asbestos Injuries Compensation Fund Limited as Trustee for the Asbestos Injuries Compensation Fund (No 2) [2018] NSWCA 323.
Also absent a stay, the pendency of an appeal does not affect the bindingness of a judgment: Uniform Civil Procedure Rules 2005 (NSW) r 51.44(2).
The defendants and Pitcher Partners do not have, and have never had, a common interest which may have prevailed against the plaintiffs in relation to any documents passing between them pertinent to the formulation of the final orders, compliance with the final orders or complying with the Undertaking.
To the contrary, whatever the defendants (in particular Max Twigg) may have thought, they and Pitcher Partners were not facing a common adversary. Pitcher Partners was no longer (if ever it had been) in a position adverse to the plaintiffs. The defendants could have had no legitimate expectation that Pitcher Partners would treat the plaintiffs as adversaries. This is especially so with respect to the Undertaking.
It required the defendants to give instructions to Pitcher Partners to prepare financial documentation in a particular form dealing with a particular matter, namely the division of assets. It was given in the context of the Court having declared Max Twigg to be the plaintiffs' trustee, and to obtain a stay of active orders made by Ball J.
It was given for the benefit, if not the exclusive benefit, of the plaintiffs.
King, in my opinion correctly, observed in an email to Radcliff on 7 April 2021 at 4:08 PM (Notice to Produce bundle page 267), in response to an assertion by Radcliff in an email at 3:49 PM (Notice to Produce bundle page 264) that the defendants were claiming legal professional privilege over all communications with his office over the interpretation of the orders and how they apply to their respective clients, that the defendants:
[C]annot validly claim legal professional privilege in the communications with my office about these matters. They are simply not privileged communications as between your office and mine, especially in circumstances in which your clients have threatened to sue mine.
It can hardly be said that the subjects of the Undertaking, namely documents evidencing or constituting instructions to Pitcher Partners to prepare the documentation or the documentation itself, are, or were contemplated to be, confidential to the defendants and Pitcher Partners, and the defendants and Pitcher Partners could have had no legitimate expectation that they would be. Neither was, or could have been, under an express or implied obligation not to disclose the content of their communications to the plaintiffs. The same applies to documents pertinent to the formulation of the final orders and compliance with them.
So far as the Undertaking is concerned, I consider that there was an implicit, if not express, obligation that the defendants, and Pitcher Partners so far as their participation was concerned, would make full and frank disclosure of the communications made, and documents brought into existence, pursuant to the Undertaking.