First Plaintiff v Defendant

2 The Plaintiffs rely upon the following materials in support of the Privilege Application:

(a) affidavit of Mark Stanarevic sworn 1 August 2022 ('First Stanarevic Affidavit');

(b) affidavit of Mark Stanarevic affirmed 26 September 2022 ('Second Stanarevic Affidavit');

(c) affidavit of Maree Cable affirmed 1 September 2022 ('Cables Affidavit'); and

(d) its written outlines of submissions dated 11 August 2022 ('Plaintiffs' Outline'), 30 August 2022 ('Plaintiffs' Reply Outline'), 17 October 2022 ('Plaintiffs' Napoli and Hardie Affidavits Submission') and 21 October 2022 ('Plaintiffs' Redacted Documents Submission').

3 The Defendant relies upon the following materials in opposition to the Privilege Application:

(a) affidavit of Craig Cawood sworn 14 June 2022 ('First Cawood Affidavit');

(b) affidavit of Craig Cawood sworn 5 August 2022 ('Second Cawood Affidavit');

(c) affidavit of Emma Napoli sworn 21 September 2022 ('Napoli Affidavit');

(d) affidavit of Amy Hardie affirmed 22 September 2022 ('Hardie Affidavit');

(e) affidavit of Craig Cawood sworn 29 September 2022 ('Third Cawood Affidavit');

(f) affidavit of Craig Cawood sworn 11 October 2022 ('Fourth Cawood Affidavit'); and

(g) its written outlines of submissions dated 23 August 2022 ('Defendant's Outline'), 21 October 2022 ('Defendant's Napoli and Hardie Affidavits Submission') and 21 October 2022 ('Defendant's Redacted Documents Submission').

4 Oral submissions were made at the hearing on 29 September 2022 regarding the Privilege Application.

5 For the reasons which follow, Defendant's claims to legal professional privilege are upheld and the Privilege Application will be dismissed.

6 The second plaintiff ('Mr Vigors'), through his company (the first plaintiff), was until January 2020, the franchisee of two of the Defendant's restaurants in Mildura.[1]

7 It is pleaded by the Plaintiffs that the first plaintiff transferred the two restaurants to the nominee of one Leigh Colbert on 20 January 2020.[2]

8 Separately and central to the proceeding, allegations in this proceeding include what occurred in the lead-up to that transfer in or around December 2019 to January 2020. The Defendant alleges that Mr Vigors was involved in an incident with his neighbours on about 13 December 2019 which "went viral" ('viral incident').[3] Between then and mid-January 2020, the Defendant alleges that the following occurred:[4]

(a) the Defendant issued media statements and corresponded with Mr Vigors;

(b) the Defendant took operational control over the Mildura restaurants;

(c) Mr Vigors sold (with the Defendant's assistance) the Mildura restaurants to a new franchisee, Leigh Colbert (with whom Mr Vigors had entered into a heads of agreement to sell the stores prior to the viral incident); and

(d) the Defendant corresponded with Mr Vigors and his solicitors.

9 The Plaintiffs allege that they suffered loss and damage as result of the Defendant's alleged conduct in the period from 15 December 2019 when the Plaintiffs allege the Defendant took operational control of the two restaurants and/or purported to terminate the relevant franchise agreement.[5] In denying the Plaintiffs' claim for loss and damage, the Defendant (among other things) relies upon the fact that prior to the events of late December 2019, the Second Plaintiff had been trying to sell the two restaurants, had been negotiating with Mr Colbert for that purpose, and on or about 11 December 2019 had entered into a Heads of Agreement with Mr Colbert in relation to the sale of the two restaurants.[6]

10 The Defendant is said to have sought or obtained legal advice with respect to all of the above matters.[7]

Content of the application and procedural background to the application

11 By the Amended Summons, the Plaintiffs seek the following relief:[8]

(a) an order that the Defendant file a further affidavit of documents that states sufficiently the grounds of any legal professional privilege in compliance with Rule 29.04 (1) (d) of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules').

(b) an order the Defendant make available for inspection:

(i) unredacted copies of the documents listed in schedule 1 in part 1 of schedule 1 of the further affidavit of documents sworn by Craig Cawood dated on 14 June 2022 where certain documents are said to be partially privileged that have been partially redacted.

(ii) the documents in part 2 of schedule 1 of the affidavit of Craig Cawood dated 14 June 2022

pursuant to s 55/56 of the Civil Procedure Act 2010 (Vic) ('CPA').

(c) alternatively, a declaration that the documents in part 2 of schedule 1 of the affidavit of the First Cawood Affidavit are not subject to legal professional privilege.

(d) an order granting leave to cross examine Mr Cawood on the basis that there is a reasonable belief that the Defendant is misinterpreting its discovery obligations and/or failing to disclose discoverable documents and/or wrongly claiming privilege thereupon pursuant to s 57 of the CPA.

12 The parties have been making discovery of documents in accordance with previous orders of the Court. Having done so, the Plaintiffs by way of the Amended Summons, seek production to them of certain documents over which the Defendant has claimed privilege, with those claims being either over the whole of a document or part thereof. In the latter instance, partly privileged documents have been produced by the Defendant to the Plaintiffs in redacted form. In other words, the Plaintiffs have challenged a number of the privilege claims made by the Defendant.

13 This Privilege Application was heard by me on 29 September 2022.

14 During the course of the hearing, submissions were made by both parties regarding the extent to which the relief sought in the Summons was in respect of part-privileged documents. The Defendant contended that the Summons did not seek unredacted copies of documents which had been identified in the First Cawood Affidavit as part privileged and redacted ('Redacted Documents').[9] The Plaintiffs disputed this. I ruled that it was unclear so I gave leave to the Plaintiffs to amend the Summons to seek that relief, which they subsequently did. I also gave leave for the Defendant to file and serve any affidavit in respect of those documents, for the Plaintiffs to file and serve any affidavit in response, and for the parties to file written submissions. The Fourth Cawood Affidavit, the Plaintiffs' Redacted Documents Submission and the Defendant's Redacted Documents Submission were subsequently filed and served.

15 The relief sought in paragraph 4 of the Summons (described in paragraph 11(d) above) was dealt with during the course of hearing on 29 September 2022. Oral submissions in respect of that aspect of the Summons were made by the parties. The application by the Plaintiffs for leave to cross examine Mr Cawood was refused. I provided the parties with an oral ruling and I indicated that I would deal with the balance of the relief sought in the Amended Summons in this written ruling.

16 At the hearing, the Plaintiffs objected to the Defendant relying on the Napoli and Hardie Affidavits, saying that they had not had sufficient time before the hearing to determine whether the privilege claims made in those affidavits regarding specific documents were made in the same terms as set out in the First Cawood Affidavit.

17 I permitted the Defendant to rely on the Napoli and Hardie Affidavits but gave leave to the Plaintiffs to file and serve a short written submission insofar as they contended that any of the bases for the privilege claims stated in schedule one to each of the Napoli and/or Hardie Affidavits differed to the bases for the privilege claims stated in part two of schedule one to the First Cawood Affidavit, and for the Defendant to file a short submission in reply. The Plaintiff's Napoli and Hardie Affidavits Submission and the Defendant's Napoli and Hardie Affidavits Submission were subsequently filed.

18 Objections were made by the Defendant to the whole of the Cables Affidavit. I ruled that the Defendant's objections as to relevance would be dealt with in the course of my consideration of the Privilege Application and would go to weight, however I upheld the Defendant's objection to the final sentence of the second paragraph 17 of the Cables Affidavit on the grounds that not only was it irrelevant it was also scandalous.

19 Objections were made by the Defendant to parts of the Second Stanarevic Affidavit, which were conceded by the Plaintiffs.

20 The Plaintiffs objected to aspects of each of the First Cawood Affidavit, the Napoli Affidavit and the Hardie Affidavit. I ruled that the matters raised would be taken into account when I considered whether to accept or reject these aspects of their evidence.

21 Below, I summarise the evidence given in the affidavits relied upon, with the affidavits discussed in chronological order.

22 In his first affidavit Mr Cawood deposes as to his role an employee of the Defendant, the events concerning a potential sale of the Plaintiffs' Mildura restaurants in early 2018, the viral incident, and the general operation of the Defendant's legal team.

23 Mr Cawood deposes that he is a director and senior vice president/general counsel of the Defendant.[10]

24 He says that his primary day-to-day responsibility is as a lawyer of the Defendant, in his capacity as its general counsel. He is the leader of the Defendant's legal team,[11] is responsible for the legal advice provided by the other in-house lawyers employed by the Defendant, and provides legal advice to employees of the Defendant.[12]

25 The Defendant's legal team is made up of a number of lawyers whose primary role is to provide legal advice to the Defendant.[13] From time to time the Defendant briefs external lawyers. In respect of the matters which are the subject of the Plaintiffs' claim in this proceeding, the Defendant engaged Maddocks to provide legal advice and draft legal documents.[14]

26 Mr Cawood deposes that it is the Defendant's usual practice that lawyers will be sent documents or emails where it is necessary for the lawyers to give legal advice, or to arrange for an external lawyer to give legal advice.[15] He says that in his experience, it is not usual for the Defendant's lawyers to be sent documents or emails in any other context.[16]

27 In respect of the events relevant to the Defendant's dealings with the Plaintiffs, and the matters which are the subject of the Plaintiffs' claims in this proceeding, Mr Cawood deposes that the Defendant's lawyers included Amy Hardie, Emma Napoli, Hannah Dakin and Vanessa Magee.[17]

28 Mr Cawood deposes that the Defendant's claims for legal professional privilege that are challenged by the Plaintiffs concern documents regarding two unrelated events involving the Plaintiffs' Mildura restaurants.[18]

29 Firstly, in or about late 2018, Mr Vigors notified the Defendant that he proposed to sell the Mildura restaurants to Ms Emma Burgess, an existing franchisee of the Defendant's restaurants.[19] Under its franchise agreements with Mr Vigors (and all franchisees), the Defendant has the right to exercise a right of refusal in respect of any proposed sale.[20] In effect, the Defendant can elect to purchase the store itself at the price which the vendor franchisee has agreed with a potential purchaser. Mr Cawood says that part of the purpose of such a clause is to prevent franchisees from under-reporting a sale price to the Defendant (which has effects on the borrowing requirements of an incoming purchaser).[21]

30 The Defendant sought to exercise its right of refusal in respect of the proposed sale of the Mildura restaurants to Ms Burgess.[22] Mr Cawood signed the notice to the Plaintiffs indicating the Defendant's intention to exercise its right of refusal.[23]

31 The Defendant's internal legal team, and its external solicitors, provided legal advice to the Defendant around the proposed sale, and the exercise of the right of refusal.[24] Mr Cawood deposes that as a result, a number of the documents which are the subject of the Defendant's privilege claim relate to that proposed transaction.[25]

32 Secondly, Mr Cawood deposes as to the viral incident involving Mr Vigors which he describes as central to this proceeding.[26] Mr Cawood deposes that between the incident on 13 December 2019 and about mid-January 2020, the Defendant was involved in the immediate aftermath of the incident (including issuing media statements and corresponding with Mr Vigors), and assisted Mr Vigors to sell the Mildura restaurants to Mr Colbert.[27]

33 The Defendant's legal team provided legal advice on draft media communications, draft correspondence to Mr Vigors and his solicitors, potential legal liability arising from the viral incident, the taking of operational control over the Mildura restaurants, the documents necessary to give effect to the sale, and other associated matters related to the transaction.[28]

34 Mr Cawood deposes that the involvement of the Defendant's lawyers in dealing with the events which are the subject of this proceeding was limited to a legal role.[29] He says that the Defendant's lawyers were not asked to provide any non-legal advice, such as commercial or public relations advice to the Defendant.[30]

35 In respect of the sale to Ms Burgess, the Defendant's lawyers were required to provide legal advice about various issues, including good faith obligations and the right of purchase contained in the franchise agreements. Mr Cawood says that the lawyers did not provide commercial or other non-legal advice.[31]

36 Mr Cawood also deposes as to his own involvement in the matters the subject of this proceeding, as follows:

(a) The decision to take operational control of the Mildura restaurants was made by the Defendant's executives and he was not one of those decision makers. He was consulted by those decision makers by telephone, SMS and email throughout the period about the legal risks associated with the viral incident and the legal options available to the Defendant. Throughout December 2019 and January 2020, he provided legal advice, including by seeking instructions about the factual circumstances of the viral incident so that he could provide that advice.[32]

(b) In respect of the sale of the sale of the Mildura restaurants to Mr Colbert, his only involvement was to give legal advice in respect of the transfer of the restaurants.[33] Mr Cawood deposes that he was not involved in any commercial or other negotiations.

37 The First Cawood Affidavit states that it is a further affidavit of documents made in accordance with orders made by Attiwill J on 9 May 2022.[34] It makes discovery over further documents as enumerated in part 1 of schedule 1 of the First Cawood Affidavit ('Cawood Schedule') and says that part of some documents are redacted.[35] In the body of his affidavit, Mr Cawood does not state the basis upon which part of some documents have been redacted. In the Cawood Schedule, there are columns entitled number, document title, document ID, privileged, and confidential. Nine of the 157 documents have 'part' listed in the privileged column and the rest have 'no'.

38 The First Cawood Affidavit also makes discovery of documents enumerated in part 2 of schedule 1 ('Cawood Privilege Schedule'), states that they are privileged and that the Defendant objects to producing them. Mr Cawood deposes that the documents are privileged from production on the basis set out in the Cawood Privilege Schedule.[36]

39 The Cawood Privilege Schedule has columns as follows: number, document title, document ID, attachment source, date, to, from, cc, and description of document and basis for privilege claim. There are 162 documents listed in the Cawood Privilege Schedule.

40 Mr Stanarevic is the solicitor at Matrix Legal with the care and conduct of this proceeding for the Plaintiffs.[37]

41 Mr Stanarevic's first affidavit simply exhibits the correspondence between the parties' solicitors where the dispute over the Defendant's privilege claims are ventilated and discussed.[38]

42 In his second affidavit, Mr Cawood deposes as to the dates of admission to legal practice of each of the relevant members of the Defendant's legal team.[39] He also deposes that during the relevant period within which privileged communications were sent and received, those members of the Defendant's legal team each held a valid practicing certificate in New South Wales.[40]

43 As will be seen, the Plaintiffs refer to the Cables Affidavit to support their assertion that Mr Cawood does not act merely in a legal role as an employee of the Defendant.

44 Ms Cables deposes that she is currently a licensee of McDonald's Albury East and that she has been a licensee of up to eight restaurants in two different states of the Defendant for over 25 years via corporate vehicles.[41]

45 Ms Cables deposes to events between around November 2016 and January 2017 in respect of some of her restaurants where she had dealings with Mr Cawood. It is unnecessary for me to set out here what the events were. Ms Cables deposes that at the time Mr Cawood was the Senior Vice President, General Counsel and Franchise Relationship Officer and that he supervised an investigation into her restaurants.[42] She exhibits a copy of his Linkedin profile as at 1 September 2022.[43]

46 Ms Cables deposes that she had attended a meeting with Mr Cawood and two other employees of the Defendant on 12 December 2016 at which Mr Cawood did most of the talking.[44] She also deposes to having a telephone conference involving Mr Cawood on 23 December 2016 and a further meeting with Mr Cawood on 9 January 2017.[45]

I am aware that Craig Cawood is actively involved with franchisees. He does not merely provide legal assistance to McDonald's. The Field Consultants which attended my restaurants reported directly to Craig Cawood, during the investigation into my restaurants.[46]

48 Ms Napoli deposes that she is the Vice President, Chief People Officer of the Defendant and commenced that role in February 2021.[47] Prior to that role, Ms Napoli held various other roles from 2010 including as legal counsel in the Defendant's in-house legal team,[48] and became Director of Legal and Deputy General Counsel in July 2014. In that role, she reported directly to Mr Cawood.[49] In October 2020 she moved out of the Defendant's legal team and into its People Team in the role of Director of People & Culture.[50]

49 Ms Napoli deposes that her designation as a 'Vice President' reflects the level of her role within the Defendant and does not carry with it any further responsibilities beyond her role as Chief People Officer. She says that similarly, there is a designation of 'Senior Vice President', which also reflects a higher level within the company. Ms Napoli says that the designation of Senior Vice President also does not carry with it any further roles or responsibilities beyond that person's own position in the company.[51]

50 Ms Napoli deposes that the role of the Defendant's legal team in respect of matters involving the Plaintiffs involved providing legal advice in response to the viral incident; providing and reviewing legal documentation in relation to the viral incident; and providing legal advice, including drafting and reviewing documentation, concerning the sale of the Mildura restaurants to Mr Colbert.[52] Ms Napoli deposes that the Defendant's privilege claim over communications in respect of which she was a party were in relation to these three roles.[53]

51 Ms Napoli deposes that at the relevant time, Mr Cawood was the Defendant's general counsel and franchise relationship officer. In his capacity as franchise relationship officer, Mr Cawood was someone to whom the franchisees could escalate issues and speak about issues that arose.[54] She states that Mr Vigors did not escalate any issues surrounding the viral incident to Mr Cawood in his role as franchise relationship officer.[55]

52 Ms Napoli deposes that in her experience and observations, the vast majority of Mr Cawood's role has been and is as general counsel and a lawyer for the Defendant.[56]

53 Ms Napoli also gives evidence that Mr Cawood's role relating to the matters involving Mr Vigors involved him acting in a legal capacity only. She says that his interactions with Mr Vigors were as the Defendant's general counsel, and his interactions with her and other members of the legal team were also in that role. Ms Napoli says that is, Mr Cawood supervised her and other members of the Defendant's legal team in the performance of their legal roles, rather than requesting advice or otherwise engaging with the Defendant's legal team as part of his role as franchise relationship officer.[57]

54 The Napoli Affidavit contains a schedule which describes each document over which the Defendant maintains a privilege claim which Ms Napoli was involved in ('Napoli Privilege Schedule'), which has the same columns as contained in the Cawood Privilege Schedule.

55 Ms Hardie gives evidence that she from around March 2019 to March 2020 she was employed in the Defendant's legal team in Australia as senior legal counsel. [58] She is currently employed in the Defendant's global legal team as senior counsel.[59] Ms Hardie states that the leader of the Defendant's legal team is Mr Craig Cawood.[60]

56 In or about 2019 Ms Hardie says that she reported directly to Ms Napoli, who as at time Director of Legal for the Defendant.[61]

57 Ms Hardie deposes that she understood that Mr Cawood was acting as general counsel on behalf of the Defendant in respect of Mr Vigors' proposed sale of his restaurants to Ms Burgess, the viral incident and Mr Vigors' proposed sale of his restaurants to Mr Colbert.[62] She says that she formed this understanding as from her experience, when a problematic or controversial situation arises involving the Defendant, Mr Cawood is asked to provide or arrange the provision of legal advice to the Defendant, and her communications with Mr Cawood concerning Mr Vigors were solely for the purpose of Mr Cawood asking her to provide legal advice or prepare legal documentation.[63]

58 Ms Hardie deposes that on or about 15 December 2019 she was telephoned by Mr Cawood who informed her of the viral incident and that they would need to draft some legal documentation.[64]

59 Ms Hardie prepared legal documentation for franchising matters for the Defendant. She states that it was standard practice to receive instructions from ether the relevant accountant or finance manager of the Defendant, or someone senior to Ms Hardie in the legal team, and then draft legal documents.[65]

60 In respect of matters involving Mr Vigors, she received instructions from Faisal Bhatti, a finance manage at the Defendant.[66] Mr Bhatti would begin preparing template documents with commercial terms inserted and then send the documents to Ms Hardie to review, provide legal advice and then prepare the legal documentation.[67]

61 The Hardie Affidavit contains a schedule which describes each document over which the Defendant maintains a privilege claim which Ms Hardie was involved in ('Hardie Privilege Schedule'). The Hardie Privilege Schedule contains the same columns as the Cawood Privilege Schedule.

62 In his second affidavit, Mr Stanarevic describes and exhibits (in exhibit bundle MS-1) a number of documents involving Mr Cawood.

63 In particular, he refers to (and exhibits copies of) the following documents, describing them as:

(a) An email from Antoni Martinez[68] to Mr Cawood dated 15 December 2019 which stated, inter alia, "I refer to your discussion with Craig Cawood and myself, in which it was agreed that McDonald's will take operational control of the Restaurants on and from 15 December 2019".[69]

(b) "Phone discussion between Craig Cawood, Emily Napoli and Antoni Martinez on 20 Devember 2019". Pages 2-3 of exhibit MS-1 are said to be a copy of the file notes of the phone discussion.[70]

(c) On 20 December 2019, Robert Sexton, VP/CFO sent a letter to Mr Cawood that dealt with the borrowing guidelines for Mr Colbert.[71]

(d) The notice of exercise of lessor's option dated 9 January 2019 is signed by Craig Cawood.[72]

(e) On 15 December 2019, Gregory Andrew sent emails to a number of recipients including Mr Cawood that dealt with operational and media issues. One of the emails stated "Craig, Ant and I are working on the details and James is doing the media liaison work".[73]

(f) On 15 December 2019, James Rickards sent an email to a number of recipients including Mr Cawood that dealt with media issues.[74]

(g) On 15 December 2019, Mr Martinez sent an email to Mr Vigors that was copied to Mr Cawood that stated inter alia "I refer to your discussion with Craig Cawood and myself today in which it was agreed that McDonald's will take operational control of the Restaurants on and from 15 December 2019. Should you have any further media contact please contact me and McDonald's will respond."[75]

64 The Third Cawood Affidavit is brief and is relied upon to correct a misdescription of the basis for the Defendant's privilege claim over two documents listed at items 131 and 132 of the Cawood Privilege Schedule. There, the claim had been described as being for the dominant purpose of providing legal advice in relation to the proposed sale of the restaurants to Ms Burgess.[76] Mr Cawood deposes that he wishes to correct this, saying that documents MCD.003.001.2140 and MCD.003.001.2141 are privileged because they were sought and received for the dominant purpose of providing legal advice to the Defendant in relation to the taking of operational control of the Mildura restaurants.[77]

65 In his fourth affidavit, Mr Cawood provides evidence in respect of the Redacted Documents. He says that the documents described in the Cawood Schedule as redacted are redacted on the basis that they are partly privileged, and he exhibits redacted copies of the partly privileged documents as exhibit CC-03.[78]

66 The Fourth Cawood Affidavit contains a table, in similar form to the Cawood Privilege Schedule. Mr Cawood deposes that the redacted portions of the Redacted Documents are privileged on the basis set out in that the table contained in the Fourth Cawood Affidavit ('Cawood Part Privilege Schedule').[79]

General principles regarding legal professional privilege

67 Section 118 of the Evidence Act 2008 (Vic) ('Evidence Act') deals with legal advice privilege, providing as follows ('Advice Limb'):

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.

68 Section 119 of the Evidence Act deals with litigation privilege ('Litigation Limb'), however that is not claimed here by the Defendant so I need not deal with it.

69 The principles in respect of client legal privilege[80] are well established and there is little utility setting out a fulsome discussion of them here, unless that is necessary to deal with the parties' submissions. Generally speaking, the parties did not appear to differ on the general principles regarding privilege, however where they did, I will deal with that later.

70 The common law principles inform the content and application of the Advice Limb.[81] In the context of applying the Evidence Act, in IOOF Holdings Ltd v Maurice Blackburn Pty Ltd,[82] Elliott J stated that the principles applicable to privilege "are not controversial" and summarised them as follows:[83]

(1) The party claiming the privilege bears the onus. That onus will only be discharged if the party establishes facts from which the court may determine that the privilege is being properly claimed.

(2) "Purpose" in "dominant purpose" means the purpose which led to the creation of the document or the making of the communication.

(3) The "dominant purpose" is the purpose which was the ruling, prevailing or most influential purpose at the time the document was brought into existence.

(4) There can be only 1 dominant purpose. If there are 2 purposes of equal weight, neither fits the description of a "dominant purpose".

(5) If a dominant purpose existed, that dominant purpose must be determined objectively, having regard to the evidence, the nature of the document and the parties' submissions. That said, evidence of the subjective purpose of the person making the communication or creating the document is relevant.

(6) Ordinarily, the relevant purpose is that of the person who brings into existence the document which includes the privileged communication, but this will not always be the case.

(7) As the test is directed towards the purpose of bringing the document into existence, a copy of a non-privileged document may be privileged.

(8) The material relied upon by the person claiming privilege must be focused and specific. Formulaic and bare conclusory assertions are not sufficient.

(9) With respect to advice privilege, in considering whether a communication is for the purposes of legal advice, the purposes must be construed broadly. Although it does not extend to pure commercial advice, legal advice, in this context, includes any advice as to what should prudently and sensibly be done in the particular legal circumstances in which the client finds itself.

(10) Further to subparagraph (9), a document created by a lawyer that records her or his legal work carried out for the benefit of the client, such as a research memorandum, a summary of documents or a chronology, will be protected by privilege whether or not the document is provided to the client. Similarly, notes and other material created by the client that relate to the legal advice sought (whether or not actually communicated to the lawyer), or that relate to communications with the lawyer, may be privileged where such documents meet the relevant "dominant purpose" test.

(11) With respect to litigation privilege, for a proceeding to be "anticipated or pending" for the purposes of s 119, there must be more than a mere possibility of litigation. As a general rule, there must be a real prospect of litigation, but it does not have to be more likely than not.

(12) Many claims for privilege may be determined by the court without the need to inspect the documents. Further, ordinarily, the court will not examine the documents if the party claiming privilege has not established a basis for the claim in an affidavit in support. However, in an appropriate case, the court may examine the documents to make a decision about privilege, particularly where the parties agree to this course.

(13) A law firm or a company may be a "client" if it engages or employs its own employee lawyer, but privilege will only attach to the relevant communication or document if the employee is consulted confidentially in her or his professional capacity, with the requisite degree of independence, in relation to a professional matter.

71 Based on the evidence adduced and the submissions of the parties, in my view the following are the main issues arising for consideration:

(a) Issue 1: the alleged non-legal role of the Defendant's in-house lawyers;

(b) Issue 2: whether Mr Cawood can depose to the alleged privileged purpose of documents he was not involved in;

(c) Issue 3: the adequacy of the description of the documents claimed to be privileged;

(d) Issue 4: whether the Court should inspect documents over which privilege is claimed;

(e) Issue 5: the Redacted Documents; and

(f) Issue 6: the privilege claims in respect of specific documents, to the extent not already dealt with.

72 It is convenient to deal with each of these in turn, setting out the parties' submissions and then my analysis.

Issue 1: the alleged non-legal role of the Defendant's in-house lawyers

73 Most of the documents over which privilege is claimed by the Defendant generally concern communications involving one or more of the Defendant's internal legal team, rather than their external lawyers.

74 A great deal of time at the hearing was spent on Issue 1.

75 The Plaintiffs relied on the Cables Affidavit and the Second Stanarevic Affidavit as evidence that Mr Cawood's role was not a purely legal one.

76 They submit that insofar as the Cables Affidavit is concerned, it demonstrates that Mr Cawood has another role, that of franchise relationship officer, and that his activities in that role are different to any legal one.

77 The Plaintiffs submitted that the documents described by Mr Stanarevic and exhibited in the Second Stanarevic Affidavit, as set out at paragraph 63 above demonstrate that Mr Cawood was not acting, or did not always act, in a legal role and that not all of his documents were for the purpose of providing legal advice.

78 The Plaintiffs submitted that as they had these documents because privilege was not claimed in respect of them, that shows that the Defendant's evidence that Mr Cawood only "did stuff that was in relation to legal advice" was not correct, because these show he is acting in a non-privileged manner.[84] In response to this, I said to the Plaintiffs' counsel that there is a difference between a non-legal role and a non-privileged communication. I also sought clarification that the submission was that Mr Cawood was acting in a non-legal role because he was acting in a non-privileged manner.[85] To this, counsel responded that perhaps he had misspoken, but his intended submission was that the Defendant's position was that Mr Cawood has only been acting in a legal manner and that all of his communications should be privileged.[86]

79 The Plaintiffs submit that even if Mr Cawood was acting in a legal role, that does not necessarily mean that a document is privileged.

80 The Plaintiffs submit that paragraph 17 of the First Cawood Affidavit[87] is objectionable as it is conclusionary, there is no proper articulation of the basis, and it constitutes an opinion. The Plaintiffs say that Mr Cawood is not the person who can depose to these matters, and his multiple roles, and it is not for him to determine what is for a dominant purpose or what the purposes were of each of the matters in question before me.

81 The Plaintiffs also objected to paragraph 18 of the First Cawood Affidavit,[88] in particular the final sentence that "the lawyers did not provide commercial or other non-legal advice".

82 In a similar vein, the Plaintiffs objected to paragraph 21 of the First Cawood Affidavit,[89] saying that it was conclusionary. They also say that it is not for Mr Cawood to basically state that privilege applies because he is giving legal advice, as that is a matter for me to determine. It is said that this is of no probative value.

83 Further, the Plaintiffs submit paragraphs 15 and 19 of the First Cawood Affidavit[90] are inadmissible as they are conclusionary, with the basis therefore not expressed, and that those paragraphs are in any event expressed in the most general terms so as to be meaningless.[91]

84 Of the Cables Affidavit, the Defendant says that this was in a different timeframe, with a different franchisee, and that in any event there is nothing in her affidavit to suggest that Mr Cawood is not performing those roles as a general counsel.

85 The Defendant did not dispute that Mr Cawood has a role as a director of the Defendant as well as being general counsel. The Defendant also acknowledged that its evidence disclosed that in respect of certain franchisees he is a franchisee relationship officer.

86 However, the Defendant submits that the critical point is that Mr Cawood has gone on affidavit, wearing his general counsel hat, and deposed that his only involvement with these two particular issues was in the obtaining and providing of legal advice, which he did in conjunction with the internal legal team. Further, his next most senior legal officer, Ms Napoli has said that, as has the lawyer who reports to her, Ms Hardie.

87 The Defendant submitted that it may be appropriate where there is a communication between a client and an in-house lawyer to assume that legitimate legal advice was being sought, absent any contrary indications.[92] The Defendant relied on AWB v Cole (No 5)[93] for this proposition.

88 The Defendant also submitted that the evidence discloses that the prima facie position is that each of Mr Cawood, Ms Napoli and Ms Hardie were acting independently at the relevant time and that they were performing a legal role in respect of the subject matters. The Defendant submitted that this gives rise to a presumption that the lawyers are independent and that the Plaintiffs bear the evidentiary burden of rebutting the presumption.

89 The Defendant relied on Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd, where it was stated that in the case of inhouse lawyers, there is no presumption of a lack of independence.[94] Having said that, Boddice J went on to cite Gillard J in Australian Hospital Care (Pindari) Pty Ltd v Duggan (No 2), in which Gillard J said:

... once the client swears the affidavit of documents claiming legal professional privilege in a way which leads the Court to the conclusion that the claim is properly made, then the prima facie position is that the legal adviser was acting independently at the relevant time.

It follows that if any party to the litigation disputes the claim for legal professional privilege then it has the evidentiary burden of establishing facts which prima facie rebut the presumption.

...

If the party opposing the claim for privilege does establish facts which rebut the prima facie presumption then in the end result the party claiming privilege must establish the propriety and validity of the claim.

The Court may, after considering the issues, reach the conclusion that the lawyer was acting independently and accordingly the privilege is upheld, or that the lawyer was not acting independently and accordingly there is no privilege, or the Court may reach a position where it is in doubt. If the latter stage is reached then the Court should inspect the documents to determine the propriety and validity of the claim.

...

... the mere fact that the legal adviser is an employee of the client or that his duties may involve performing non-legal work do not establish that at the relevant time he was not acting independently. It is recognised that employees will perform non-legal work and it is an essential element of the privilege that at the relevant time the employee was performing legal work.

The fact of employment is relevant but the weight to be attached to that fact in considering independence will depend on all the circumstances.[95]

90 The Defendant drew on its submission described in the preceding two paragraphs to contend that the presumption of the independence of its in-house lawyers arises due to its evidence and the Plaintiffs have not rebutted that presumption, and that therefore the privilege claim ought be accepted and there is no need for the Court to inspect the documents.

91 The Defendant also submitted that the fact that Mr Cawood has a mixed role within the company does not preclude his communications from attracting privilege.[96] It says that what is important here is the role that he was performing in making the communications under inquiry. In this regard, the Defendant says that the evidence establishes that Mr Cawood was acting in a legal role for the entirety of his involvement in the subject matters, but that does not mean a fortiori that all his communications are privileged, since his communications must still satisfy the dominant purpose test. This is why some communications involving Mr Cawood are not the subject of a privilege claim.

92 I do not give any weight to the Cables Affidavit when it comes to determining whether Mr Cawood was acting in a legal role in respect of the subject matters. Her impressions of his role in a different context at a different time are simply not probative of the question before me, particularly in circumstances where the Defendant concedes that Mr Cawood had other roles within the company. The Cables Affidavit tells me nothing about what Mr Cawood's role was in respect of the subject matters.

93 I do not accept the Plaintiffs' submissions as set out in paragraph 76 above.

94 I have reviewed the documents exhibited to the Second Stanarevic Affidavit and make the following comments regarding specific documents:

(a) In relation to the document described at paragraph 63(a) above, Mr Stanarevic neglects to mention that this was an email sent by Mr Martinez to Mr Vigors, copied to Mr Cawood. Clearly, privilege was not claimed in respect of this document. The content of the document does not shed any light on Mr Cawood's role in respect of the discussion he attended between Mr Vigors and Mr Martinez, although I note that Mr Martinez finishes his email with "If you have any questions, I am your solo point of contact." I do not accept the Plaintiffs' proposition that Mr Cawood being in attendance at a discussion between Mr Vigors and Mr Martinez means that he was performing a non-legal role. Having your lawyer present at what was undoubtedly an important meeting is hardly surprising and does not indicate that the lawyer was performing any other function. To the extent that the Plaintiffs rely on the phrase "it was agreed" to suggest that Mr Cawood played a decision making role, that is not apparent on the face of the email and nor am I prepared to infer that. Mr Cawood deposes that he did not perform a decision-making function in this regard and there is no reason to doubt that evidence. The same comments apply to the document described at paragraph 63(g) above.

(b) In relation to the document described at paragraph 63(b) above, I consider the description given by Mr Stanarevic to be quite inaccurate. He describes it as a file note of the phone discussion. It is no such thing. It is a calendar invitation for 20 December 2019 for a phone call between Ms Napoli, Mr Cawood and Mr Martinez with the subject line "Discussion re Rob Vigors" and an acceptance of that invitation. There is no other meaningful content. That Mr Cawood and Ms Napoli have organised a phone call with Mr Martinez to discuss Mr Vigors is hardly surprising when both depose to providing legal advice to the Defendant during this time and Mr Martinez was the one dealing with Mr Vigors, as is apparent from the other documents contained in exhibit MS-1. Not only is the description of the document inaccurate, it is not evidence that Mr Cawood and/or Ms Napoli were not acting in a legal role in respect of the subject matters.

(c) In relation to the document described at paragraph 63(d) above, Mr Cawood signed that document above the description of his position as Senior Vice President/General Counsel. That a lawyer signs a notice to Mr Vigors in his stated role as a lawyer does not mean that he was acting in a non-legal role. Further, I accept Ms Napoli's evidence set out at paragraph 49 above that a designation to an employee of the Defendant as Vice President or Senior Vice President reflects the level of seniority of the employee and not additional roles or responsibilities. Therefore, I do not regard Mr Cawood's designation as Senior Vice President as connoting an additional role within the company. Ms Napoli's knowledge of this is clearly based on her own experience but also due to her current role within the Defendant's People Team.

95 Insofar as these documents are concerned generally, I do not accept the Plaintiffs' submission that these demonstrate Mr Cawood was performing a non-legal role. That Mr Cawood was copied into correspondence over which privilege is not claimed may simply be a result of him being kept informed of events as they unfolded so that he was in a position to provide legal advice. If that was the purpose of him being copied, then that may well mean that a purpose of the documents was for legal advice but it does not mean that was the dominant purpose, and so is therefore not privileged. There is simply nothing on the face of those documents to suggest that Mr Cawood was performing a non-legal role in respect of the subject matters.

96 I also do not accept the Plaintiffs' submissions as set out in paragraph 78 above. That was just not how the Defendant put its case. Rather, I accept the Defendant's submission as set out at paragraph 91 above.

97 The Defendant did not appear to dispute that if an in-house lawyer with multiple roles within the company was not acting in their legal role when involved in communications, then those communications were not privileged (or, more precisely, any privilege does not arise by reason of that person's involvement in the communication). That is the appropriate course to adopt.

98 I am satisfied, based on all of the material before me, that Mr Cawood was acting in a legal role in respect of his involvement in the subject matters. His own evidence is very clear on this point and I do not accept the Plaintiffs' attack on portions of his evidence. To contend that Mr Cawood cannot give evidence about his own multiple roles and which role he was performing at any particular time is nonsensical. He is best placed to do so, and to say that his evidence that he was acting in a legal role is conclusionary and only an opinion is also nonsensical. Whether I accept Mr Cawood's characterisation of his role depends on an analysis of all of the evidence, which is what I have done, but it does not mean that Mr Cawood cannot give the evidence he does.

99 To the extent that the Napoli and Hardie Affidavits are relied upon as evidence of Mr Cawood performing only in a legal role in respect of the subject matters, I accept that evidence insofar as Ms Napoli and Ms Hardie depose to their own interactions with him about those matters. Such evidence is direct and within their knowledge. To the extent that they stray into generalisations about Mr Cawood's role that is not based on those interactions, their evidence is of little weight.

100 I do not consider the Defendant's submission set out at paragraphs 88 to 90 above to be particularly relevant here. As I apprehended the Plaintiffs' submission, their stated concern was not about the independence of the in-house lawyers per se but to the contention that they, particularly Mr Cawood, had multiple roles and it could therefore not be assumed (or presumed) that they were acting in a legal role insofar as their involvement in the subject matters was concerned. Even if I have misunderstood the Plaintiffs' submission, I have not needed to rely on the presumption of independence which the Defendant relied upon, as I am satisfied on the evidence that the in-house lawyers were acting in a legal role when involved in the subject matters, such that if the dominant purpose test is met and confidentiality is maintained, their communications are capable of being privileged.

101 I do not accept the Defendant's submission as set out at paragraph 87 above. In AWB v Cole, Young J stated that:

Where communications take place between a client and his or her independent legal advisers, or between a client's in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications.[97]

102 In this passage, Young J refers to "those legal advisers" which in context must mean external lawyers, and the use of "independent lawyers" in the first phrase is therefore a reference to external lawyers. Therefore, I do not read this passage as referring to communications between a client and an in-house lawyer. Nonetheless, nothing really turns on this given I am satisfied as to the evidence that the Defendant's in-house lawyers were acting in a legal role when communicating with the Defendant (or employees of the Defendant) in respect of the subject matters.

103 In conclusion, therefore, I reject the Plaintiffs' submissions that documents in the Cawood Privilege Schedule involving Mr Cawood are not privileged because he was not performing a legal role in respect of them. I find that he was acting in a legal role in respect of those documents.

104 To the extent that the Plaintiffs' say that the documents in the Cawood Privilege Schedule involving Ms Napoli and/or Ms Hardie are not privileged for the same reason, I reject that. There is no evidence to support the contention that either or both of them performed non-legal roles in respect of the subject matters, and there is sufficient evidence to say that they did so, namely their own affidavits and that of Mr Cawood. As their supervisor, Mr Cawood is able to give that evidence.

Issue 2: whether Mr Cawood can depose to the alleged privileged purpose of documents he was not involved in

105 The Plaintiffs submit that much of the evidence proffered in the First Cawood Affidavit is hearsay evidence as Mr Cawood was not the author of many of the documents contained in the Cawood Privilege Schedule. The Plaintiffs say that he was the author of 10 of the documents listed in that schedule.[98] It is said that his evidence regarding the other documents should not be admissible as there was no impediment to the Defendant obtaining proper direct evidence of the creator's purpose.[99] The Plaintiffs rely on Setka v Dalton (No 2) (Legal Professional Privilege)[100] in support of that submission.

106 The Defendant submits that it is common for one deponent to give evidence in respect of a claim for legal professional privilege, even if the deponent is not the author of all the relevant documents.

107 The Defendant submits that Mr Cawood, as general counsel of the Defendant, made all due and proper enquiries of the Defendant's officers, employees and agents.[101] For these reasons and for the reasons of case efficiency it was unnecessary for the Defendant to have filed affidavits from each of its employees who are party to the various communications.

108 The Defendant submits that although it does not accept this criticism of its evidence, it filed the Napoli and Hardie Affidavits so as to address this criticism.

109 It is clear from the principles summarised in IOOF v Maurice Blackburn that the dominant purpose must be determined objectively, having regard to the evidence, the nature of the document and the submissions. Evidence of the subjective purpose of the person making the communication is relevant.[102]

110 In Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4),[103] Beach J of the Federal Court stated that the purpose is to be objectively ascertained:

Evidence of the subjective intention of the author or person requesting the creation of the communication (document) is significant but not conclusive. Purpose can also be determined from the content of the document in its full context. Indeed, the latter analysis can carry greater weight, particularly over generalised hearsay or even compounded hearsay evidence from a person other than the author or person requesting the creation of the communication (document).[104]

111 I do not accept that Setka v Dalton stands for the proposition advanced by the Plaintiffs. In fact, it is to the contrary. In the sections of that case relied upon by the Plaintiffs, Daly AsJ stated that:

... each case turns on its own facts, and the availability of and practicality of adducing direct, non-hearsay evidence is a relevant factor. Principles of efficient case management also loom large, particularly where there are a large number of documents where claims for legal professional privilege are in dispute.[105]

112 In that case, the plaintiff relied to a significant extent on the absence of any firsthand subjective evidence of the purpose for which the challenged documents were created. Her Honour stated that it was necessary for the dominant purpose of the communications to be objectively determined, having regard to the subjective evidence of the purpose for which the relevant communications were made. However, she stated that the Court was not precluded from 'drawing inferences regarding the subjective purpose of communications from documentary and other evidence before the Court, rather than direct evidence from the maker of the relevant communications.'[106]

113 In Setka v Dalton, Daly AsJ found that while there were some shortcomings in the evidence relied upon by Boral, it was difficult to see how, practically speaking those difficulties could have been overcome.[107]

114 Her Honour then went on to find that the deficiencies in Boral's evidence went to the weight to be afforded the deponent's evidence rather than its admissibility. The deponent had given evidence of the context in which the documents were created, the purposes for the solicitors' retainer, and there was:

ample, uncontested documentary evidence which reveals and explains the sequence of the relevant events and disputes, and the nature and scope of [the solicitors'] retainer, and further evidence is not always necessary to explain what those documents mean.[108]

115 Having said that, her Honour went on to say the following, which I note that the Plaintiffs did not refer to. Why that was the case I do not know, since it is of more assistance to them than the passages they did rely on. Daly AsJ stated:

However, [the deponent's] lack of direct involvement in the relevant events and communications means that, where there is some doubt about the provenance and purpose of particular communications which cannot be resolved by inspection of the document recording the communication in question, then the absence of direct, specific evidence regarding the purpose (as opposed to the description) of the document concerned means that, in such cases, Boral will not have discharged the burden of establishing that the dominant purpose of the relevant communication was for Boral to seek or receive legal advice. In other words, while the evidence relied upon by Boral is sufficient to advance Boral's claims for privilege, in some cases, the evidence is generally insufficiently direct or focussed to resolve any doubts which arise upon inspection of the challenged documents.[109]

116 Mr Cawood clearly can, and does, give direct evidence as to the purpose of the communications he was involved in. He can, and does, give direct evidence of the context for those communications since he was involved in the subject matter of the events, either through his direct involvement or his supervision of Ms Napoli and Ms Hardie. Further, he deposes that he has made all due and proper enquiries before making the First Cawood Affidavit. This is not a situation such as that in Andrianakis v Uber, where the deponent of the affidavit was the external solicitor who had no more involvement in the events or the subject documents/communications than and commenting on the purpose of them via instructions to him of the context and reviewing the documents themselves.[110]

117 Therefore, I do not accept the Plaintiffs' submission that Mr Cawood's evidence is inadmissible. To the extent that it is non-direct or hearsay in respect of the purpose of any particular document, at most that goes to weight rather than admissibility.

118 In any event, there is now evidence from Ms Napoli and Ms Hardie as to the communications they were involved in.

Issue 3: the adequacy of the description of the documents claimed to be privileged

119 The Plaintiffs submit that in a broad sense, the basis for the Defendant's claim for legal professional privilege has been inadequately articulated in the Cawood Privilege Schedule. They make the same criticism of the Napoli Privilege Schedule and the Hardie Privilege Schedule (together, these three schedules shall be referred to as the 'Privilege Schedules').

120 The Plaintiffs submit that the privilege claim for each document is described in a formulaic repetitive manner that provides no assistance in determining the veracity of the claim for legal professional privilege. Further, the Plaintiffs contend that in respect of the claim for privilege over the vast majority of documents which are wholly privileged, no particulars are provided. The Plaintiffs contend that the claim recited in part the legal definition of a claim for legal professional privilege and that the claim is expressed in conclusionary terms, with no particulars of the topics which the instructions or advice were directed. The Plaintiffs rely on AWB Ltd v Cole (No 5)[111] and Hancock v Rinehart (Privilege)[112] in support of their submissions.

121 The Plaintiffs submit that the claim for legal professional privilege is expressed in such general terms that it is impossible to properly assess the claim. The Plaintiffs submit that the best that can be done is to consider the claim for privilege in a broad manner, and whether the claim for privilege is consistent with the identity of the parties to the communications and the scant details that have been provided.

122 In particular, the Plaintiffs make the following complaints as to the description of the privilege claims:

(a) A number of the documents have the claim expressed as "for the dominant purpose of requesting legal advice for McDonald's in relation to the transfer of the restaurants to Mr Colbert".[113] The Plaintiffs submit that there is nothing inherently privileged about the transfer of the restaurants, and that topic can involve many aspects which are unlikely to be privileged. The Plaintiffs contend that "transfer of the restaurants" is too general.

(b) Several documents have the claim expressed as "for the dominant purpose of providing legal advice to McDonald's in relation to the proposed sale of the restaurants".[114] They make the same submission as in (a) above that a lawyer's file regarding a proposed sale of a business could contain many documents which are not privileged.

(c) The claim for some documents is expressed as "for the dominant purpose of obtaining legal advice" "about the incident involving Mr Vigors", or "following the incident involving Mr Vigors".[115]

(d) The claim for privilege in relation to a draft statement is insufficiently described for three documents, as it does not identify whose statement or the events which it relates to.[116]

123 The Plaintiffs rely on Seven Network Limited v News Limited, where Tamberlin J stated:

It is well settled that simply to label a document as being "prepared for legal advice" or as "privileged" or as being "without prejudice" is of itself insufficient to justify the privilege. The Court will look to the substance of the matter, having regard to the content, context and evidence as well as the form of the document.[117]

124 The Plaintiffs say that the Defendant's description of the documents goes no further than labelling a document as being prepared for legal advice.

125 The Plaintiffs also rely on the decision of Lord Scott in Three Rivers District Council v Governor and Company of the Bank of England:

If a solicitor becomes the client's 'man of business', and some solicitors do, responsible for advising the client on all matters of business, including investment policy, finance policy and other business matters, the advice may lack a relevant legal context. There is, in my opinion, no way of avoiding difficulty in deciding in marginal cases whether the seeking of advice from or the fiving of advice by lawyers does or does not take place in a relevant legal context so as to attract legal privilege. In cases of doubt the Judge called upon to make the decision should ask whether the advice relates to the rights, liabilities, obligations or remedies of the client either under private law or public law. If it does not, then, in my opinion, legal advice privilege would not apply. If it does so relate then, in my opinion, the judge should ask himself whether the communication falls within the policy underlying the justification for legal advice privilege in our law. Is the occasion on which the communication takes place and is the purpose for which it takes place such as to make it reasonable to expect the privilege to apply? The criterion must, in my opinion, be an objective one.[118]

126 Relying on the boldened part of that passage, the Plaintiffs submit that there is nothing in the descriptions "in relation to the transfer of the restaurants" and "in relation to the proposed sale of the restaurants" that gives rise to anything about the rights, liabilities, obligations or remedies of any party. They say that there needs to be a proper articulation of what these rights, liabilities or remedies were in fact in relation to, and that has not occurred. The Plaintiffs make the same submission about the description "about the incident involving Mr Vigors". Of the description "following the incident involving Mr Vigors", the Plaintiffs say that this is not a matter that could be covered by privilege, as anything can follow an incident.

127 The Plaintiffs rely on Hancock v Rinehart (Privilege)[119] and take issue with paragraph 10 of Ms Napoli's affidavit. The Plaintiffs say that in relation to the matters deposed by Ms Napoli at paragraph 10(a),[120] reviewing legal documentation itself is not privileged and no claim for privilege could be attached to it.

128 In relation to paragraph 10(c) of the Napoli Affidavit,[121] the Plaintiffs submit that those matters are expressed too widely, and the Plaintiffs require a proper articulation as to what the legal advice was in relation to. The Plaintiffs submit those are matters that should and could be further articulated without giving away the Defendant's privilege claim and would enable the Plaintiffs to properly assess the claims to privilege.

129 The Defendant submits that in evaluating the claims for privilege, one always needs to have in mind the test articulated in Hodgson v Amcor Ltd; Amcor Ltd v Barnes (No 2).[122] In response to the Plaintiffs contention that the privilege claims do not go far enough, the Defendant submits they clearly do. That is principally because the Defendant submits it has provided the general context in which the legal advice was given and the communications were made. The Defendant has described the two incidents, the role of its in-house legal team, and the topics on which the legal team were communicating.

130 In respect of specific communications, the content and purpose of the advice is also disclosed but in a way that the confidential content of the communication is not conveyed. The Defendant submits it is not required by the authorities to disclose the intricate subject matter of the advice or the core topics of the advice, because to disclose those matters would be to deprive the communications of their confidential status.

131 The Defendant submits it has provided the plaintiff with the general context and the framework in which the advice was given and then on a document-by-document basis it has provided sufficient detail to explain the purpose and direction of the relevant communication.

132 The Defendant relies on my decision of Regent 125 Pty Ltd v Brdar,[123] and submits that the same paragraph applies mutatis mutandis to this case because there is sufficient information generally and there is sufficient information in respect of the documents the subject of the Privilege Application.

On the one hand the grounds of the privilege claimed must be sworn in terms which identify the legal basis upon which the claim is made and provide a sufficient description of the elements of the document relied upon to support the claim made on that basis.

On the other hand, a claiming party cannot be compelled to provide such particularity as would compromise the very privilege that is claimed. It would defeat to [sic] object of the protection, and hence the public purpose which it seeks to advance, if the description required was such as to enable the other party to discover the contents or effect of the document, and thereby compromise its confidential status.[124]

134 In my view, the Defendant has met the requirement in the first paragraph of the passage from Hodgson v Amcor cited in the previous paragraph.

135 In focusing on parts of the descriptions in the Privilege Schedules such as "proposed sale of the restaurants", the Plaintiffs have failed to take sufficient account of the balance of the descriptions in the Privilege Schedules and have not taken any account of what is deposed to in the body of the First Cawood Affidavit, the Napoli Affidavit, and the Hardie Affidavit. By way of example, Mr Cawood refers to the Defendant's legal team and its external solicitors providing legal advice to the Defendant around the proposed sale and the exercise of the right of refusal. In my view, that is a sufficient description so as to enable the Court to be satisfied as to the legal basis upon which the claim is made (ie for the dominant purpose of providing legal advice) and a sufficient description of the elements of the document relied upon to support that claim.

136 To require the Defendant to go further is to traverse into the very territory described in the second paragraph of the above cited passage from Hodgson v Amcor.

137 I do accept the Plaintiffs' submission that reviewing legal documentation in and of itself is not likely to be privileged, but reviewing documentation as part of providing legal advice may be. Although there were descriptions in the body of the Napoli and Hardie Affidavits (in particular) about reviewing or preparing legal documentation, as referred to above, the privilege claims in the Privilege Schedules all referred to provision of legal advice, rather than reviewing legal documentation. Consequently, the documents were capable of being privileged.

138 Otherwise, I do not accept the Plaintiffs' submissions in respect of Issue 3:

(a) The Defendant does not simply label a document as privileged: it has set out the basis for the claim (ie the Advice Limb); and it has given evidence in general but sufficient terms as to the matters about which it was obtaining legal advice.

(b) The Plaintiffs' contention that the description of the documents should set out the rights, liabilities, obligations or remedies of any party the documents relate to so as to be a proper articulation of the privilege claim is rejected. The Plaintiffs' submission in this regard misapplies Three Rivers Council, as it does not take into account the part of the paragraph preceding the boldened passage. It is only in cases of doubt as to whether the lawyer was performing a legal role where such matters need to be taken into account: this is not such a case, as I have already found. Having already found that the advice provided by the Defendant's in-house lawyers was provided by them in performance of their legal functions, no doubt arises. In any event, in the context of this case, to require the Defendant to set out the rights being advised about would be, as I have already said, to effectively reveal the content of the communication.

139 In my view, the descriptions of the privilege claims in the Privilege Schedules in respect of each of the documents over which privilege is claimed, together with the evidence provided in the bodies of the First Cawood Affidavit, the Napoli Affidavit and the Hardie Affidavit, are altogether sufficient to satisfy me that the documents are privileged, subject to whether I consider particular documents should be inspected and the outcome of that inspection.

Issue 4: whether the Court should inspect documents over which privilege is claimed

140 The Plaintiffs originally submitted that I should not inspect any of the disputed documents, based on the contention that the Defendant had not properly articulated its privilege claim and that the Court should not inspect them so as to fill in an evidentiary gap.

141 In this regard, the Plaintiffs rely on Mortgage Results Pty Ltd v Millsave Holdings Pty Ltd (Legal Privilege).[125] They also referred to Martin v Norton Rose Fulbright Australia where it was said that:

...the Court's power to inspect the document is not to facilitate proof by a claimant of facts required to sustain a claim for privilege but to provide a means of enabling that claim to be scrutinised and tested.[126]

142 The Defendant submitted that there was no need for the Court to inspect the disputed documents, as the privilege claim had been sufficiently articulated and established on the evidence. The Defendant submitted that if the Court was in any doubt about this, then it could inspect the documents and the Defendant had no objection to it doing so.

143 On 28 July 2022, I made orders on the papers by consent as to a representative sample of the privileged documents, as follows:

(a) the Defendant was to provide a list of 20 documents for the representative sample by 2 September 2022;

(b) the Plaintiffs were to confirm by 9 September 2022 whether they wanted any documents added or removed from the representative sample; and

(c) by 16 September 2022, the Defendant was to provide the Court with copies of the documents contained in the agreed representative sample.

144 The Defendant provided the agreed sample list dated 16 September 2022 to my Associate ('Agreed Sample List') along with copies of the sample documents and their attachments ('Sample Documents'). The Sample Documents run to some 340 pages.

145 During the course of the hearing, I sought clarification from the parties as to what, if anything, I was supposed to do with the Sample Documents. The Defendant stated that it had intended for the Agreed Sample List to be a subset of documents upon which the Court could rule and then the parties extrapolate from and apply that ruling to the balance of the documents. However, the Defendant said that it no longer considered that this was a case where ruling on the Sample Documents would necessarily allow for easy extrapolation across the broader cohort. It says that the Sample Documents constitute about two-thirds of the disputed documents.

146 The Defendant suggested that I identify the documents about which I had a concern on the face of the affidavit material and request them from the Defendant's solicitors. The Plaintiffs then said that they consented to me reading all of the disputed documents if I decided it was necessary.

147 The upshot of all of this was that I said that as I worked my way through my decision, if I decided that I wanted to inspect some or all of the documents I would seek them from the Defendant's solicitors and that that request would be communicated to both parties.

148 The only documents which I sought that I did not already have among the Sample Documents were unredacted copies of the Redacted Documents, about which my Associate communicated with both parties on 15 December 2022. The Defendant's solicitor sent the unredacted copies to my Associate later that day.

149 As I observed in Bradford & Anor v Devlot 17 Pty Ltd, at both common law and under the Evidence Act the Court has a discretion to inspect the disputed documents, provided that the party claiming privilege has adduced enough evidence for the claim to first be entertained.[127]

150 Here, as is apparent from my analysis of Issues 1 to 3 above, I am satisfied that the Defendant has adduced enough evidence for the claim to first be entertained. It follows that I reject the Plaintiffs' submission set out at paragraph 140 above.

151 While I can therefore inspect the disputed documents, I will not do so unless I consider it necessary to do so. If I am satisfied as to the privilege claim in respect of a document based on the affidavit material and the descriptions in the Privilege Schedules, then there is no need for me to inspect the document.

152 The Defendant's Redacted Documents Submission was filed on the same day as the Plaintiffs' Redacted Documents Submission, so it is noted here that the parties' submissions are not responding to each other, but to the evidence in the Fourth Cawood Affidavit.

153 In the Plaintiffs' Outline, the Plaintiffs submit that there is no basis articulated for the claim for legal professional privilege in respect of the Redacted Documents. The Plaintiffs contend that the First Cawood Affidavit is deficient in that regard and that the redacted part of the documents must be produced for inspection. The Plaintiff submits that there is no explanation by the Defendant as to why that was privilege was claimed, and therefore all those documents should be provided on an unredacted basis.

154 At the hearing, the Plaintiffs submitted that the Defendant's had not remedied this failure. They said that if the Defendant wanted to redact part-privileged documents and make a claim for legal professional privilege, then it ought to have done so properly.

155 As noted above, at the conclusion of the hearing I made orders for the provision of further affidavits and submissions in respect of the Redacted Documents. The balance of the summary of the Plaintiffs' submissions regarding the Redacted Documents is taken from those.

156 The Plaintiffs submit that the description of the items in the Cawood Part Privilege Schedule that the redacted portions are privileged because they are "in relation to the transfer of the restaurants to Mr Colbert" is inadequate, for the same reasons as stated in the Plaintiffs' Outline for the wholly privileged documents. That is, it is said that the description is generic, is expressed in conclusionary terms with no particulars, and because the details provided are scant, making it impossible to properly assess the Defendant's claim for legal professional privilege.

157 The Plaintiffs submit that the same term is used to assert the Defendant's claim for privilege in respect of 90 documents in the Cawood Privilege Schedule, which means it is impossible to consider each claim for legal professional privilege on a separate basis for each document.

158 In relation to item 4 of the Cawood Part Privilege Schedule, the Plaintiffs submit that the email of Mr Carapatis is said to be privileged on the basis that he provided legal advice, however Mr Carapatis is not deposed to as being a lawyer in the Second Cawood Affidavit, therefore privilege cannot apply.

159 The Plaintiffs submit that exhibit CC-03 to the Fourth Cawood Affidavit[128] shows that the provision of alleged legal advice was unsolicited with no requests therefor, and there is no evidence to support the Defendant's claim for legal professional privilege.

160 The Defendant submits that the Fourth Cawood Affidavit (including the Cawood Part Privilege Schedule) makes clear the basis on which legal professional privilege is claimed, including by detailed analysis of each of the documents. That analysis reveals that privilege claims are made in respect of communications from the Defendant's lawyers in-house lawyers, all bar one of which is a communication by Mr Cawood himself. The analysis also establishes that the dominant purpose of the communications was for the purpose of providing legal advice.

161 The Defendant submits that in addition to Mr Cawood's evidence, the unredacted parts of the documents support a contextual inference that the relevant lawyer's communication was for the dominant purpose of providing legal advice.

162 The Defendant maintains that it has established that the redacted portions attract legal professional privilege.

163 The Defendant says that should the Court consider it necessary, a sufficient evidentiary basis has been established to enliven the Court's power to inspect the relevant documents.

164 In my view, the First Cawood Affidavit is inadequate as to the privilege claims regarding the Redacted Documents. As noted at paragraph 37 above, Mr Cawood does not state the basis upon which part of some documents have been redacted, although it is reasonable to infer that it is on the grounds of privilege since nine of the 157 documents in the Cawood Schedule have 'part' listed in the column titled 'privilege' and the rest have 'no'. Those nine documents are not listed in the Cawood Privilege Schedule, and so the basis for the privilege claim in respect of them is not set out at all.

165 Therefore, the complaints made in the Plaintiffs' Outline and by the Plaintiffs at the hearing as to the adequacy of these privilege claims are reasonable.

166 If there was nothing further, I would have no hesitation in rejecting the Defendant's privilege claim in respect of the Redacted Documents. However, there is further evidence, following the directions I made at the conclusion of the hearing on 29 September 2022, as referred to above.

167 I am satisfied that the Fourth Cawood Affidavit, including the Cawood Part Privilege Schedule, sufficiently establishes the Defendant's claim to privilege in respect of the redacted portions of the Redacted Documents. This is particularly so given that the context for this advice and the activities of the Defendant's legal team regarding that, being the transfer of the restaurants to Mr Colbert, has already been deposed to in the First Cawood Affidavit. Further, I accept the Defendant's submission as set out in paragraph 161 above.

168 I reject the Plaintiffs' submission about the adequacy of the description, ie "in relation to the transfer of the restaurants to Mr Colbert". That submission ignores the fact that that description is prefaced by the words "for the dominant purpose of providing legal advice to McDonald's". I reject the Plaintiffs' submission in this regard for the same reason as I rejected it when discussing the wholly privileged documents.

169 I do not accept the proposition, referred to in paragraph 159 above, that the absence of a document containing a request for legal advice means that the advice was not privileged. A request could have been made verbally or could have been part of a series of communications about the same issue.

170 When one looks at the Cawood Part Privilege Schedule and the copies of the Redacted Documents, it is readily apparent that the redactions in 7 of the 9 documents are exactly the same.[129] These 7 documents are all different emails in the same email chain, but the redaction in each of the 7 documents is of that part of the chain which is an email from Mr Cawood sent at 5.25pm on 23 December 2019 in response to an email from Antoni Martinez of the Defendant sent at 5.24pm on 23 December 2019.

171 Although I do not consider it necessary to do so, I have inspected the redaction made to those 7 documents. That inspection confirms my views.

172 Insofar as the Plaintiffs' submission in paragraph 158 above is concerned, I apprehend that the reference is to item 3 in the Cawood Part Privilege Schedule rather than to item 4, as otherwise the submission does not make sense. Assuming that it is meant to be a reference to item 3, I do not read that description as necessarily meaning that it was Mr Carapatis who was providing the legal advice; it could be read as him having sent it so that someone else would provide the legal advice. In any event, even if it is read as the Plaintiffs have read it, I am satisfied by my inspection of the unredacted portion and the evidence of Ms Hardie as to her involvement that it was sent for the dominant purpose of the Defendant obtaining legal advice.

173 I am also satisfied, for the same reasons as set out in paragraph 167 above and my inspection of the document, that the redacted portion of item 9 in the Cawood Part Privilege Schedule is privileged.

Issue 6: the privilege claims in respect of specific documents, to the extent not already dealt with

174 In this Issue 6, I deal with privilege claims in respect of specific documents, to the extent they have not already been dealt with above and to the extent I consider it necessary to address particular documents or groups of documents.

175 On my count, 10 of the disputed documents involve the Defendant's external lawyers. 7 of the documents in the Cawood Privilege Schedule were emails between Ms Hardie and solicitors at Maddocks, the Defendant's external lawyers (2 of the 7 are attachments to emails). These are items 12, 13, 22, 58, 59, 67, and 108. The other 3 documents (item 68 and its attachment item 69, and item 70) are two emails from Ms Hardie to Mr Cawood forwarding or recording legal advice from Maddocks.

176 I do not understand why the Plaintiffs disputed the privilege claims in respect of these documents, particularly those directly between Ms Hardie and Maddocks. If it was because of the description being "for the dominant purpose of providing legal advice to McDonald's in relation to the proposed sale of the restaurants to Ms Burgess", which all of them bear, I have already rejected that as a basis to reject the privilege claim. If it was due to two of the emails being to Mr Cawood and the Plaintiffs' contention that he was not performing a legal role, that too has been rejected. I do not consider there to be any need for me to inspect these 10 documents to confirm the privilege claim. Nonetheless, I inspected some of them as an abundance of caution, which only reinforced the view which I have expressed.

177 Item 9 in the Cawood Privilege Schedule is described as a document execution certificate - franchise agreements dated 21 December 2019 from Ms Hardie to the signatories, McDonald's Australia Limited. The description of the privilege claim is "an internal memorandum from Amy Hardie addressed to 'The Signatories of McDonald's' for the dominant purpose of providing legal advice to McDonald's in relation to the transfer of the restaurants to Mr Colbert." The Plaintiffs complained that this document was insufficiently described as 'The Signatories of McDonald's' were not identified and so one could not be certain that confidentiality was maintained. In my view, the description is sufficient and this criticism is misplaced, as it clearly refers to it being an "internal memorandum". In any event, I inspected it as an abundance of caution and I am satisfied that it is privileged. Items 10 and 15 are described in identical terms and therefore the same finding applies to them.

178 In respect of items 24-26 in the Cawood Privilege Schedule,[130] I consider it necessary for me to inspect at least one of those documents. This is because it is described as "a draft statement in relation to the incident involving Mr Vigors", and it was not entirely clear what kind of statement it was. I have item 24 as one of the Sample Documents and have inspected that document. It is abundantly clear that it is about the draft media statement the Defendant was considering releasing, which Mr Cawood deposes was sent to him for the dominant purpose of providing legal advice to the Defendant about it. I consider that the document is privileged. There is no need for me to inspect items 25 and 26 as they are described in similar terms and are part of the same chain of emails as item 24.

179 The Plaintiffs submit that the claims for privilege in items 61 and 73 of the Napoli Privilege Schedule are unsustainable, as the creator of the document is not a lawyer and therefore could not have created a document for the provision of legal advice.

180 The Defendant submits that it is wrong to submit that a non-lawyer cannot create a document which is subject to legal professional privilege. In that regard, the Defendant contends that a request for legal advice, or instructions provided in respect of such a request, would attract legal professional privilege. The Defendant submits the fact that the author of the relevant documents was a non-lawyer does not mean that privilege cannot attach.

181 I reject the Plaintiffs' submissions in respect of items 61 and 73 of the Napoli Privilege Schedule: it is incorrect for the reasons submitted by the Defendant. In any event, the author of item 73 is Mr Cawood so the Plaintiffs' contention that it was created by a non-lawyer is incorrect.

182 The Plaintiffs dispute the claim for privilege in relation to item 85 of the Napoli Privilege Schedule. The Plaintiffs take issue with the fact the legal advice was created on 15 December 2019 in relation to the proposed sale of the restaurants to Ms Burgess, when that is pleaded to have occurred between 1 October 2018 and 21 January 2019.

183 In relation to item 85 of the Napoli Privilege Schedule, the Defendant submits that document is the same document which is the subject of the Third Cawood Affidavit. The Defendant submits that this explains that the document was wrongly described, and the same error has been made in the Napoli Affidavit. The Defendant says that the Court can be satisfied on the basis of the material in the Third Cawood Affidavit that the document is subject to legal professional privilege.

184 I accept the Defendant's submissions in this regard.

185 The Plaintiffs submit that with respect to paragraph [9] of the Hardie Affidavit, if it is the case that commercial terms were inserted into template documents by Mr Bhatti, it would be unlikely that those documents are subject to legal professional privilege. Accordingly, any documents created by Mr Bhatti are simply not privileged.

186 I reject this submission. Ms Hardie deposes that Mr Bhatti sent such documents to her for her review and for her to provide any legal advice. The copy of the document sent by Mr Bhatti to Ms Hardie for that purpose is clearly privileged.

187 In paragraph 15 of the Plaintiffs' Outline, the Plaintiffs contend that the privilege claims to the attachments to certain emails have not been properly articulated. They say that the attachments may be privileged on the basis of the principles in Propend[131] if the emails to which they are attached are privileged, but that this does not mean that the originals of the attachments are privileged and they must be discovered. As I am satisfied, for the reasons previously articulated, that the emails to which these documents were attached are privileged, it follows that the attachments (which is the equivalent of making a copy of the original) are also privileged. I did not allow the Plaintiffs' attempt, at the hearing, to expand their application to include an application in respect of the originals of those attachments but indicated that there was nothing to prevent the Plaintiffs making a separate application in that regard, if so minded.

188 For all of the reasons set out above, I am satisfied that the Defendant has established its claim to legal professional privilege over the document disputed by the Plaintiffs.

189 It follows that the Amended Summons ought be dismissed.

190 The parties are to confer as to a form of orders to give effect to this decision, including as to costs, and to provide my Chambers by 6 February 2022 either proposed orders which have been agreed or their preferred form of orders if not agreed.

191 My preliminary view is that costs ought follow the event, such that the Plaintiffs should pay the Defendant's costs of and incidental to the Privilege Application on a standard basis. If there is a dispute between the parties as to costs or as to the form of orders to be made, I will deal with that at the hearing scheduled for 7 February 2023 at 10.30am in respect of another summons filed by the Plaintiffs.

[1] Statement of Claim dated 17 June 2021 ('SOC'), [1], [2], [4], [27].

[2] SOC, [14], [37]. This is admitted in the Amended Defence dated 29 October 2021 ('Amended Defence'), [14], [37].

[4] First Cawood Affidavit, [14]-[15].

[7] First Cawood Affidavit, [13], [15].

[8] With the amendments made by the Amended Summons shown in mark-up.

[9] The Redacted Documents are items 5, 6, 8, 9, 11-3, 15 and 21 in the Cawood Schedule (defined in paragraph 37 below).

[23] First Cawood Affidavit at [12]; Exhibit CC-02 to the First Cawood Affidavit.

[37] First Stanarevic Affidavit at [1].

[38] First Stanarevic Affidavit at [3] with exhibit MS-5.

[39] Being Mr Cawood, Ms Napol, Ms Magee, Ms Dakin and Ms Hardie: Second Cawood Affidavit at [5].

[41] Cables Affidavit at [1] and [3]. Ms Cables uses the term 'licensee' - it is unclear to me whether she is a franchisee or not, but I have assumed that she is and that she has just used a different term. I do not think anything turns on this.

[43] Cables Affidavit at [6]; exhibit MC-1 at p. 1.

[45] Cables Affidavit at [12], [16].

[53] Napoli Affidavit at [11], [15].

[68] Mr Martinez's email signature states that his role is Market Director - Southern Region, for the Defendant.

[69] Second Stanarevic Affidavit, [4(a)]; Exhibit MS-1, p. 1.

[70] Second Stanarevic Affidavit, [4(b)].

[71] Second Stanarevic Affidavit, [4(c)]; Exhibit MS-1, p. 4.

[72] Second Stanarevic Affidavit, [6(a)]; Exhibit MS-1, pp. 5-6.

[73] Second Stanarevic Affidavit, [6(b)]; Exhibit MS-1, pp. 7-14.

[74] Second Stanarevic Affidavit, [6(c)]; Exhibit MS-1, pp. 15-16.

[75] Second Stanarevic Affidavit, [6(d)]; Exhibit MS-1, p. 17.

[78] Fourth Cawood Affidavit, [3], [4].

[80] The Evidence Act refers to it as 'client legal privilege' whereas it is usually referred to in common law cases as 'legal professional privilege'. Nothing turns on this distinction and the terms are used interchangeably in these reasons.

[81] Samenic Ltd v APM Group (Aust) Pty Ltd [2011] VSC 194, [19].

[82] [2016] VSC 311 ('IOOF v Maurice Blackburn').

[87] The content of that paragraph is summarised in paragraph 34 above.

[88] The content of that paragraph is summarised in paragraph 35 above.

[89] The content of that paragraph is summarised in paragraph 36(b) above.

[90] The content of those paragraphs is summarised in paragraphs 33 and 26 above.

[91] Plaintiffs' submissions in reply at [8].

[93] [2006] FCA 1234; (2006) 155 FCR 30, [44(1)] ('AWB v Cole').

[94] [2013] QSC 82, [9] ('Aquila v Bowen Central").

[95] [1999] VSC 131, [67]-[71], [81]-[82].

[96] In this regard, the Defendant relies on my decision in Andrianakis v Uber Technologies Inc & Ors; Taxi Apps Pty Ltd v Uber Technologies Inc & Ors [2022] VSC 196, [138] ('Andrianakis v Uber').

[97] AWB v Cole, [44(4)] (citations omitted).

[100] [2021] VSC 604 at [81] - [82], [87]-[88] ('Setka v Dalton').

[102] IOOF v Maurice Blackburn, [47(5)]. See paragraph 70 above.

[103] [2014] FCA 796 ('Asahi').

[111] [2006] FCA 1234; (2006) 155 FCR 30, [40] (Young J).

[112] [2016] NSWSC 12, [7] (Brereton J).

[113] These are identified by the Plaintiffs as items 1-10, 14-21, 44-57, 61-64, 71=76, 80-86, 88-91, 94-101, 109-111, 114-127, 133-137, and 144-149 in the Cawood Privilege Schedule.

[114] These are identified by the Plaintiffs as items 11-13, 22, 28-43, 58-59, 65-67, 70, 93, 107-108, 128-132, 138-143, and 157 in the Cawood Privilege Schedule.

[115] These are identified by the Plaintiffs as items 11, 24-26, 77-79, 83, 892, 102-106, 112-113, 150-154, 156, 158-160, and 162 in the Cawood Privilege Schedule.

[116] These are identified by the Plaintiffs as items 24-26 in the Cawood Privilege Schedule.

[117] [2005] FCA 142, [6].

[118] [2004] UKHL 48, [38] ('Three Rivers District Council'), cited by Tamberlin J in Seven Network v News Limited [2005] FCA 142, [12], emphasis added by Tamberlin J.

[119] [2016] NSWSC 12, [7] (Brereton J).

[120] See paragraph 50 above: Ms Napoli says that the Defendant's legal team was providing legal advice to the Defendant in response to the viral incident.

[121] See paragraph 50 above: Ms Napoli says that the Defendant's legal team was providing legal advice including drafting and reviewing documents regarding the sale of the Mildura restaurants to Mr Colbert.

[122] [2011] VSC 204 ('Hodgson v Amcor').

[123] [2019] VSC 177, [39].

[124] Hodgson v Amcor, [36]-[37].

[125] [2017] VSC 704, [9], [24] ('Mortgage Results').

[126] [2019] FCA 1101, [56]. The Plaintiffs also relied on Hancock v Rinehart (Privilege) [2016] NSWSC 12, [32], [34].

[127] [2020] VSC 246, [60].

[128] That exhibit is a bundle of the Redacted Documents.

[129] These documents are items 1, 2, 4-8 in the Cawood Part Privilege Schedule.

[130] For the Plaintiffs' submissions about these documents, see paragraph 122(d) above.

[131] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.