Gerasimov (As Executor of the Estate of the Late Vladimir Safronov) v Onepath Life Ltd

Evidence on the application

1. The defendants read the following affidavits on the application: 1. The affidavit of Michael Iacuzzi sworn 29 March 2017; 2. The affidavit of Matthew Corkhill sworn 20 June 2017; and 3. The affidavit of Matthew Corkhill sworn 29 March 2017 which had annexed to it three documents (said to be emails) over which privilege is claimed. A copy of the latter affidavit was only provided to the court in an unredacted form and was not provided to the legal representatives for the plaintiff in an unredacted form. The plaintiff was served with a version which had redacted the body of each of the three documents annexed.
2. It is not unusual for a court to review documents over which privilege is claimed by a party in order to determine a challenge to that claim. In North Shore Real Estate Pty Ltd v Real Estate Property Management Services Pty Ltd (No 2) [2017] NSWDC 77 I stated the following in paragraph 5: "[5] It is accepted that in some cases it is appropriate for a judge to inspect the documents over which privilege is claimed in order to consider whether in the case of materials in the possession of a proposed expert witness, such documents may have influenced the content of the expert report prepared by that expert witness: see Integral Energy Australia v EDS (Australia) Pty Ltd [2006] NSWSC 971; New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 at [51]. I note that in New Cap at [51] Justice White said that there were limits as to whether such a review was a useful exercise. However, in my view, a review was required in the present case."
3. In my view, similar principles apply in relation to the present application. See also Grant v Downs (1976) 135 CLR 674 at 689.
4. On the application, the plaintiff read or tendered the following material: 1. The affidavit of Josh Thomas Mennen affirmed 26 June 2017; 2. The affidavit of Mr Corkhill sworn 29 March 2017 in a redacted form which became Exhibit A on the application; 3. The affidavit of Michael Iacuzzi sworn 29 March 2017 which became Exhibit B on the application; 4. The affidavit of Melissa Godfrey sworn 9 August 2012 but limited to paragraphs 13, 14 and 29(b) which became Exhibit C on the application; and 5. The affidavit of Josh Thomas Mennen affirmed 27 September 2017 at paragraphs 5-16.
5. The plaintiff also relied on the contents of the written submissions of counsel for the defendants dated 1 August 2017 in paragraph 38 as constituting an additional waiver of privilege.

The two claims for privilege

1. As indicated above, the defendants claimed privilege over two categories of documents, being documents discovered by them and also documents produced on subpoena by Centricity. It was said that all the documents in issue were the same or were similar and were closely connected.
2. There is a preliminary question in relation to the legal principles which are applicable to the two separate claims.
3. In the North Shore Real Estate case, above, I stated the following at paragraphs 17-18: "[17] It was accepted by the parties that common law principles as to legal professional privilege applied rather than the provisions of the Evidence Act 1995 (NSW). [18] In my view, this is correct. Where the objection to inspection by a party is taken by the person required to produce the documents pursuant to the subpoena, the objection is to be decided by reference to the Evidence Act. However, where the objection to disclosure is made by a person other than the respondent to the subpoena, the issue of legal professional privilege is to be determined according to common law principles: Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526 at [27]-[28]; Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002 at [11]."
4. In paragraph 5 of their submissions dated 18 July 2017, counsel for the plaintiff stated as follows: "It is accepted, as was noted by the Court, that the subpoena privilege argument falls to be determined under the common law and the discovery privilege argument is to be determined under the Evidence Act 1995 (NSW). The main difference between the law of privilege under the common law and under the Evidence Act is that at common-law privilege attaches to communications: Cross on Evidence, sixth edition, at [25210]."
5. In paragraph 14 of the written submissions of counsel for the defendants dated 1 August 2017 (but received by the court on 6 September 2017) the following is stated: "Insofar as the plaintiffs' challenge is to the claim for privilege in the discovery process, the provisions of the Evidence Act 1995 (NSW) apply. Insofar as the plaintiffs' challenge is to the documents produced by Vlasta [this should be a reference to Centricity] under subpoena, the defendants accept for the purposes of this application that the common law, not the Evidence Act applies. However, the defendants submit that whether one applies the provisions of the Evidence Act or the common law, the end result is the same on the facts of this case."
6. The relevant differences, if any, in the principles to be applied are considered further below.

Applicable legislation

1. In relation to the discovered documents, the Evidence Act applies. Sections 118 and 119 of the Evidence Act 1995 (NSW) provide as follows: 118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. 119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

A claim for legal professional privilege at common law - relevant principles

1. In North Shore Real Estate (No 2), above, I stated the following at paragraphs 20-23: [20] In Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 at 490 Deane J stated as follows: It is a substantive general principle of the common law and not a mere rule of evidence that, subject to defined qualifications and exceptions, a person is entitled to preserve the confidentiality of confidential statements and other materials which have been made or brought into existence for the sole purpose of his or her seeking or being furnished with legal advice by a practising lawyer or for the sole purpose of preparing for existing or contemplated judicial or quasi-judicial proceedings: see, generally, Baker v Campbell (1983) 153 CLR 52; 49 ALR 385. [21] Similar principles were stated by the other judges in the case. [22] In Esso Australia Resources Ltd v Commission of Taxation (1999) 201 CLR 49, the majority of the High Court held that the relevant purpose need not be the sole purpose (as was the previous law) but should at least be the "dominant" purpose: see at [35] and [61]. [23] In Tavcol, above, at [20]-[22], McDougall J stated as follows: [20] The essence of legal professional privilege at common law is that the communication (whether written or oral) should have been made for one of the requisite purposes - obtaining legal advice; or obtaining advice or evidence in connection with litigation, either reasonably anticipated or in fact commenced - and that the purpose should be "dominant". The "dominant purpose" test was established by the majority decision in Esso Australia Resources Ltd v Cmr of Taxation (1999) 201 CLR 49. [21] A number of decisions on the "dominant purpose" test indicate that "dominant" does not mean merely "primary" or "substantial", but "clearly paramount". See Spigelman CJ (with whom Sheller JA and MW Campbell AJA agreed) in Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [7], citing, among other decisions, that of Batt JA (with whom Charles JA and, relevantly Callaway JA agreed) in Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 at [10]. [22] The relevant purpose is to be determined objectively. Nonetheless, the subjective intention of the person responsible for the creation of the document (or the making of the communication) is not irrelevant, as Spigelman CJ pointed out in Sydney Airports Corporation at [6].
2. In their written submissions (paragraph 19), the defendants submit that in many, perhaps most, cases the relevant purpose will be that of the person who creates the document or makes the communication. However, where an expert report, for example, is brought into existence because a solicitor has commissioned it, the relevant purpose will be that of the solicitor. It is submitted that the position in relation to a draft email prepared by an investigator in response to questions asked by the parties' solicitor, as in the present case, should be no different. In general terms I agree with this submission.
3. The defendants also submit that at common law, communications passing between third parties and the lawyer for a client attract the privilege if they are made in contemplation of existing or anticipated litigation and for the dominant purpose of use in that litigation: paragraph 24 relying on Cross on Evidence, 10th edition, 2015 at page 1208. In substance, I also agree with that submission.
4. It is further submitted that at common law, a document that records a confidential communication may be privileged even though it is not itself a communication. An example is given of a solicitor's file note. It is submitted that there is no reason in principle why a draft of an investigator's response to a solicitor should not be privileged in circumstances where the final response is privileged. It is stated that to hold otherwise, would render the privilege worthless. Cross on Evidence, 10th edition, at page 1239, is relied upon.
5. It is submitted by the defendants that to the extent it has been said that common law legal professional privilege protects only communications, that is too broad a statement. Reliance is made by the defendants on examples given in Cross on Evidence which include drafts of pleadings, statements from potential witnesses (except when they are unsolicited), surveillance film and other materials which have come into existence as materials for a lawyer's brief. I accept those general statements of principle.
6. These appear to be well recognised exceptions to the general principle that privilege at common law only covers communications: see Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 at 490; Saunders v Commissioner (1998) 160 ALR 469; (1998) FCA 1652 per French J citing Dalleagles Pty Ltd v ASC (1991) 4 WAR 325 at 333-4. The reasoning is that the material is privileged on the ground that disclosure of the material might tend to reveal what is communicated confidentially to the solicitor.
7. In Trade Practices Commission v Sterling (1979) 36 FLR 244, Lockhart J stated a number of examples of documents to which common law legal professional privilege applied. Lockhart J's statement of principle has been approved in numerous other cases: for example Waterford v The Commonwealth (1987) 163 CLR 54 at 87. Lockhart J stated as follows at [3]-[4]: 3. Legal professional privilege extends to various classes of documents including the following: (at p245) 4. (a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. See Wheeler v. Le Marchant (1881) 17 Ch D 675; Smith v. Daniell (1874) LR 18 Eq 649; Bullivant v. Attorney-General for Victoria (1901) AC 196; Jones v. Great Central Railway Co. (1910) AC 4, and O'Rourke v. Darbishire (1920) AC 581. (b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used. See Southwark Water Co. v. Quick (1878) 3 QBD 315. (c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance. See Hughes v. Biddulph [1827] EngR 840; (1827) 4 Russ 190; 38 ER 777. (d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. See Woolley v. North London Railway Co. (1869) LR 4 CP 602, at p 604 ; Greenough v. Gaskell [1833] EngR 333; (1833) 1 My & K 98, at p 102; [1833] EngR 333; 39 ER 618, at p 620 ; Corporation of Bristol v. Cox (1884) 26 Ch D 678, at pp 681-682; Woolley v. Pole [1863] EngR 691; (1863) 14 CBNS 538; 143 ER 556 ; Seabrook v. British Transport Commission (1959) 1 WLR 509; Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674 , and Bray, Principles and Practice of Discovery (1885) pp. 388-389. (e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. See Wheeler v. Le Marchant (1881) 17 Ch D 675; Laurenson v. Wellington City Corporation (1927) NZLR 510, and O'Sullivan v. Morton [1911] VicLawRp 17; (1911) VLR 70. (f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. See Wheeler v. Le Marchant (1881) 17 Ch D 675; Cork v. Union Steamship Co. (1904) 23 NZULR 933, and In Re Holloway (1887) 12 PD 167. (g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent. See Kennedy v. Lyell (1883) 23 Ch D 387 and Lyell v. Kennedy (No. 2) (1883) 9 AC 81 (at p246).
8. See also the general approval of Sterling in Bailey v Department Land and Water Conservation [2009] NSWCA 100 at [16] per Tobias JA (with whom Allsop P and Hodgson JA agreed).

Privilege under the Evidence Act 1995 - relevant principles

1. In relation to a claim for privilege where client legal privilege is asserted under the Evidence Act, it is clear that privilege attaches not only to privileged communications but also to privileged confidential documents: ss 118(c) and 119(b).
2. In New Cap Reinsurance Corporation (in liquidation) v Renaissance Insurance Ltd [2007] NSWSC 258, White J stated in paragraph 20 as follows: [20] Section 119 of the Evidence Act expressly applies both to confidential communications between the client and a third party, or between a lawyer acting for the client and a third party, for the dominant purpose of the client being provided with professional legal services relating to legal proceedings, and to the contents of a confidential document prepared with that dominant purpose, whether the document is delivered or not (Re Southland Coal Pty Ltd (recs and mgrs apptd) (in liq) (2006) 59 ACSR 87 at [16]-[19]; Natuna Pty Ltd v Cook [2006] NSWSC 1367 at [8], [15]).
3. This statement of principle was quoted with approval by McDougall J in Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002.
4. In Re Southland Coal Pty Ltd (Receivers and Managers Appointed) (in liquidation) [2006] NSWSC 899; (2006) 59 ACSR 87 at [18], Austin J stated as follow: [18] This difference in content or emphasis, between the Evidence Act provisions and the observations in Propend and AWB Ltd v Cole, may have no significant practical consequences. Take two examples. First, a confidential draft pleading or draft witness statement prepared for the requisite dominant purpose is protected from disclosure under both the Evidence Act and the general law, whether or not the draft reflects some communication that has occurred or is a wholly uncommunicated draft. Under the Evidence Act the result flows from the simple application of the statute, which applies to the contents of the confidential document "whether delivered or not". Under the general law, as propounded in Propend and AWB Ltd v Cole, the contents of the document are protected if their disclosure would reveal (or allow the reader to infer) the content or substance of a privileged communication that has been incorporated into the draft (AWB Ltd v Coleat [132]). Arguably the contents are also protected if the confidential draft, having been prepared for the purpose of legal advice or proceedings, is intended to be communicated in pursuit of that purpose.

Onus of proof in relation to privilege

1. The defendants, as the parties claiming privilege, bear the onus of proof that a document was prepared for the dominant purpose of the provision of professional legal services relating to Australian or overseas proceedings or anticipated proceedings in which the client is or may be a party or for the dominant purpose of the client seeking or being furnished with legal advice.
2. In Hastie Group Ltd (in liquidation) v Moore [2016] NSWCA 305 Beazley P and Macfarlan JA stated as follows at paragraphs [12]-[17]. [12] There are many statements in the authorities that a party who claims privilege for a communication or document bears the onus of proving that it was prepared for the dominant purpose of the provision of professional legal services relating to Australian or overseas proceedings or anticipated proceedings in which the client is or may be a party. Thus, in AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234 Young J, at [44], stated: (1) The party claiming privilege carries the onus of proving that the communication was undertaken, or the document was brought into existence, for the dominant purpose of giving or obtaining legal advice. The onus might be discharged by evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, or authored the document, or procured its creation. It might also be discharged by reference to the nature of the documents, supported by argument or submissions … (emphasis added). [13] Young J, in support of the proposition emphasised in the above passage, cited the statement of the plurality in Grant v Downs (1976) 135 CLR 674; [1976] HCA 63 at 689. The plurality stated there: It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. Their Honours added the cautionary note that "… it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. [14] Young J repeated what had been said by the plurality in Grant v Downs about resort to formula or ritual and continued, at [44]: (3) … Nor is a claim of privilege established by mere assertion that privilege applies to particular communications or that communications are undertaken for the purpose of obtaining or giving 'legal advice' … If assertions of that kind are received in evidence in support of the privilege claim, their conclusionary nature can leave unclear what advice was really being sought. There will be cases in which a claim of privilege will not be sustainable in the absence of evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed … … (6) An appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence …: Pratt Holdings Pty Ltd v Cmr of Taxation (2004) 136 FCR 357 at [35] per Finn J. [15] Statements to like effect have been made, not only in the cases cited by his Honour, but more recently in Archer Capital 4A Pty Ltd v Sage Group Pty Ltd (No 2) (2013) 306 ALR 384; [2013] FCA 1098 at [13]-[14] and in Hancock v Rinehart (Privilege) [2016] NSWSC 12 at [7]. As the respondents placed reliance upon those paragraphs in each of these judgments and as we wish to make certain observations as to them below, it is appropriate to set them out in full. [16] In Archer Capital 4A v Sage Group Wigney J stated: [13] The party claiming privilege bears the onus of proving that the communication was made, or the document created, for the dominant purpose of giving or obtaining legal advice or aiding in the conduct of litigation or prospective litigation. It is not sufficient for a party to merely assert a claim for privilege; the party claiming privilege must establish the facts that provide the basis for the claim: National Crime Authority v S (1991) 29 FCR 203 at 211; 100 ALR 151 at 159; Kennedy v Wallace (2004) 142 FCR 185; 213 ALR 108; [2004] FCAFC 337 at [13]-[17] (Kennedy). The existence of privilege is not established by mere verbal formula, even if unchallenged: Grant v Downs (1976) 135 CLR 674 at 689; 11 ALR 577 at 589 (Grant). [14] It may be necessary for there to be evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed: Kennedy at [12]-[17]. The court has the power to examine documents in respect of which a claim is made, and should not hesitate to exercise that power where the claim is challenged: Grant at CLR 689; ALR 589. [17] In Hancock v Rinehart (Privilege) Brereton J stated: [7] To sustain a claim of privilege, the claimant must not merely assert it; but must prove the facts that establish that it is properly made. Thus a mere sworn assertion that the documents are privileged does not suffice, because it is an inadmissible assertion of law; the claimant must set out the facts from which the court can see that the assertion is rightly made, or in other words 'expose … facts from which the [court] would have been able to make an informed decision as to whether the claim was supportable'. The evidence must reveal the relevant characteristics of each document in respect of which privilege is claimed, and must do so by admissible direct evidence, not hearsay (citations omitted).

The documents over which privilege is claimed by the defendants

1. The evidence referred to previously which was relied upon by the parties establishes the following matters: 1. The issues in the proceedings concern whether a dead body found on 7 March 2010 in the city of Kharkiv in the Ukraine was that of a Mr Safronov, as the plaintiff contends, or of a Mr Sieverin, as the defendants contend; 2. The plaintiff as executor of the estate of the late Mr Safronov, has made a claim against each of the defendants in relation to a life insurance policy taken out by Mr Safronov with each defendant prior to his alleged death; 3. The proceedings in each case were commenced in 2011; 4. The defendants allege in their respective Defences that Mr Safronov is not deceased; 5. To prepare their evidence relating to these defences, the defendants' investigations continued after the proceedings commenced and these investigations were carried out by an Australian investigator, Centricity, which in turn, continued to retain an investigator in Russia named Vlasta Consulting; 6. The Managing Director of Centricity was Mr Phil Peart; 7. A representative of Vlasta Consulting was Mr Vladimir Solomanidin; 8. Turks Legal were at all relevant times the solicitors for the defendants. Ms Melissa Godfrey previously worked at Turks Legal in 2012 as a solicitor for the defendants in relation to the matters.
2. The documents over which the defendants claim privilege are: 1. Three emails allegedly passing between Centricity and Vlasta Consulting in 2012. As stated, Centricity has been retained by Turks Legal on behalf of the defendants. It is alleged by the defendants that from a review of the unredacted documents, I am able clearly to infer that the emails were prepared for the dominant purpose of communications relating to the conduct of enquiries in order to obtain evidence to support the Defences which have been filed by the defendants in the current proceedings. The plaintiff disputes this and says there is no evidence to allow this inference to be made; 2. A draft alleged by the defendants to be part of a version of a proposed response by Vlasta Consulting ("the highlighted document"); and 3. An electronic version of documents, including a version of one of the emails where there is additional metadata showing the date and subject matter of the email.
3. I will consider each of these documents in more detail. The court has had the advantage of reviewing each of the documents including the unredacted versions of the emails which were attached to Mr Corkhill's confidential affidavit dated 29 March 2017. The court has not seen the electronic version of the email but has Mr Corkhill's oral evidence in relation to it.

Submissions on behalf of the parties

1. The parties made oral submissions which were supported by detailed written submissions.
2. The submissions made on behalf of the defendants, in summary, were as follows: 1. It is appropriate for the court to inspect the documents over which privilege is claimed and consider their contents to determine the privilege claim; 2. The documents were all inadvertently discovered by the solicitors for the defendants; 3. Once the inadvertent discovery was determined, the solicitors for the plaintiff were notified promptly; 4. The inference is able clearly to be drawn from the documents in their context that they were prepared for a dominant privileged purpose; 5. The inference should clearly be drawn that the documents were confidential communications; 6. Each of the emails was a confidential communication and a confidential document. As such, privilege was attracted both at common law and under the Evidence Act. In relation to the first two pages of the Microsoft Word document which is relevantly identical to the first two pages of email three, it is a draft or copy of email three and at common law a document that records a confidential communication may be privileged even though it is not a communication itself. There is no reason why the draft of an investigators' response to a solicitor (or another investigator retained by the solicitor) should not be privileged in circumstances when the final response is privileged and to hold otherwise would render the privilege worthless; 7. The highlighted document is part of the draft email and was not sent. A confidential document whether delivered or not is in these circumstances a document to which privilege is attached under Section 119(b) of the Evidence Act. It also falls within the scope of the common law legal professional privilege being a document brought into existence for the dominant purpose of preparing for, or use in, existing or contemplated judicial or quasi-judicial proceedings. The common law does not only protect communications. It protects other confidential documents or materials relevant to the proceedings such as file notes, drafts of pleadings, statements from potential witnesses prepared by lawyers, surveillance film and other similar materials. All of the documents fall into the categories in Trade Practices Commission v Sterling, above, at common law; 8. As the documents were inadvertently disclosed, the High Court decision in Expense Reduction shows that no waiver of privilege has occurred. The privilege is that of the client not the solicitors; 9. The fact that the plaintiff's counsel read an excerpt from the highlighted document in court prior to objection being taken and handed up a copy of the document to the court is not relevant. Objections to the admissibility of documents are normally taken at the time the document is tendered and the plaintiff did not seek to tender the document. Even if there was a mistake by the defendant's counsel in not objecting to the plaintiff's counsel handing up the document, the mistake was promptly rectified that evening. An oversight by a party's lawyers, promptly rectified, does not take the circumstances outside the scope of the principles discussed by the High Court in the Expense Reduction case; 10. There was no inconsistency between the defendants' application for the orders in the nature of Markus orders and the claim for privilege. It is not true that the morgue documents in issue in the present case were "illegally obtained". A proper reading of the highlighted document shows that Mr Solomanidin meant that information was obtained unofficially and not in accordance with official procedure rather than being obtained illegally. The use of the word "illegally" has been taken out of context. There was no proper basis to order the examination of the corporate officers as to the affidavits of discovery; 11. The documents are privileged and the claim for privilege should be maintained.
3. The plaintiff submitted, in summary, as follows: 1. The defendants, as the parties claiming privilege for a communication or document, bear the onus of proving that it was prepared for the dominant purpose of the provision of legal professional services relating to an Australian or overseas proceedings or anticipated proceedings in which the client is or may be a party or for the obtaining of legal advice; 2. The facts justifying a privilege must be properly established; 3. Vlasta Consulting was not retained by Turks Legal but by the defendants' agent, Centricity; 4. The evidence relied upon by the defendants and before the court was not sufficient to establish that the dominant purpose of the emails was the provision of professional legal services in relation to a legal proceeding. The defendants adduced no direct evidence regarding the context, nature or purpose of the discovered documents which they claim to be privileged; 5. The court simply does not have the evidentiary means of ascertaining the purpose for which the documents were made, let alone whether that purpose included any desire to obtain legal advice; 6. In relation to the highlighted document, it was not produced by Centricity. It is clear that the document produced by Centricity in answer to the subpoena was changed in two ways. It seems unlikely that the removal of an email's metadata would have been done in any document that was created for the purpose of the provision of legal advice; 7. There was no proper evidence providing an explanation as to how it came to be that there were two versions of the email in question; 8. Accordingly the documents were not privileged; 9. In the alternative, if the documents were privileged, the defendants waived any privilege attaching to the undated email from Vlasta Consulting to Centricity by voluntarily disclosing it, acting in a manner that is inconsistent with maintaining any right to assert a claim for privilege and acting in furtherance of a deliberate abuse of power by tendering documents in two Markus applications that the defendants knew (from the highlighted document) to have been obtained illegally without disclosing that fact to the court; 10. There was voluntary disclosure on two occasions of the documents by Turks Legal to Maurice Blackburn; 11. Mr Bingham of counsel on behalf of the defendant handed up the highlighted document to the court and read out from the document and no objection was taken on behalf of the defendants to the contents of the document being read out in open court and it being provided to the court; 12. There was a loss of privilege because of the knowledge of the highlighted document and the failure to disclose that on the Markus applications. That created an inconsistency in relation to the claim for privilege; 13. The emails are responsive to each other. The email of 10 August 2012 can only be properly understood if the others are also available. It follows that privilege has also been waived in respect of the other emails; 14. The application to cross-examine the deponents of the discovery affidavits and Mr Peart should be granted.

Consideration

1. I have carefully considered the submissions which have been made by each of the parties.
2. In summary, I consider that the documents are privileged and that there has been no waiver of privilege. I also see no inconsistency between the claim for privilege and the knowledge of the documents by the defendants when Markus orders were sought.

Email One

1. The first email in question is dated 15 June 2012 sent at 1:19am. It was sent from Vlasta Consulting, signed Vladimir, to Mr Peart at Centricity and copied to a Ms Bond at Centricity. It may be found as Exhibit C to the affidavit of Mr Corkhill sworn 29 March 2017. The email contains advice in relation to searches and enquiries apparently requested by Ms Godfrey, a solicitor at Turks Legal, to Mr Peart, to be conveyed to Vlasta Consulting that the defendants wished undertaken to obtain evidence in support of the Defences filed in the proceedings. This is clear from both the subject matter of the email and the contents of the email.

Email Two

1. The second email in question was sent from Mr Peart the Managing Director at Centricity to Vlasta Consulting addressed to Vladimir and copied to Ms Godfrey at Turks Legal. It was sent on 7 August 2012 at 9:44am.
2. The letter purports to record discussions that Mr Peart had with the defendants' legal representatives and a request from those legal representatives for more information by way of investigations connected to factual matters arising in the defence of the proceedings. It may be found as Annexure B to the affidavit of Mr Corkhill sworn 29 March 2017.

Email Three

1. There appear to be two versions of the third email: 1. An undated two page "hardcopy" version of an email from Vlasta Consulting, signed "Vladimir", to "Phil". This may be found as Annexure A to Mr Corkhill's unredacted affidavit sworn 29 March 2017. This document appears to be from Mr Solomanidin to Mr Peart; and 2. An electronic version which consists of a three-page Microsoft Word document. The first two pages are substantially the same as the undated version referred to in (a) above. The third page is the highlighted document. The computer file name of the document and the computer metadata on the electronic file indicate that the electronic version was created on 10 August 2012: Corkhill affidavit sworn 20 June 2017 at paragraphs 26 to 29; see also T236.36-T237.24 and T239.3-.37. The electronic date of the undated email and its contents establish that it was likely prepared in response to the 7 August 2012 email from Mr Peart. It clearly deals with the subject matter of the proceedings and the investigations requested of Vlasta Consulting.

Highlighted document

1. In evidence as Annexure 4 to the affidavit of Josh Thomas Mennen dated 26 June 2017 is the highlighted document referred to above. A hard copy of this document was provided to the court on 2 May 2017 by counsel for the plaintiff but was not then made an exhibit on any application. The evidence establishes that the highlighted document was page 3 of the three page Microsoft word electronic document. It was not apparently sent as part of email three (if indeed email three was sent). Mr Corkhill's affidavit sworn 20 June 2017 establishes in paragraphs 23-30 that the highlighted document was not produced by Centricity in response to the subpoena to it but was part of the additional discovery made by the defendants following access being provided to the materials from Vlasta Consulting.
2. Having reviewed all the material before me on the application, I agree with the submission by counsel for the defendants in paragraph 11 of their submissions that the subject matter and content of the highlighted document is consistent with, and similar to, the subject matter and content of email three. That is, advice being prepared by Vlasta Consulting for the purposes of being conveyed to Centricity about the investigations potentially undertaken and to be undertaken by Vlasta Consulting in response to the request of Turks Legal through Centricity. I also accept the submission that the inference to be properly made is that the material in the highlighted document was left out by Mr Solomanidin from the email which was ultimately sent by him to Mr Peart.
3. Counsel for the plaintiff submitted that the three page email may have been sent by Vlasta to Centricity and then doctored by Centricity to remove the highlighted portion.
4. The evidence establishes however that the highlighted document was part of the three page document produced by Vlasta not Centricity: T243.43-T244.2; Corkhill affidavit sworn 20 June 2017 at paragraphs 26-29. The first two pages were in substance the same as the undated email produced by Centricity.

Dominant purpose

1. The issue to be determined is whether the documents in question including the communications in the emails were brought into existence for the dominant purpose of the defendants seeking or being furnished with legal advice by a practising lawyer or for the dominant purpose of preparing for existing or contemplated judicial or quasi-judicial proceedings. This includes obtaining evidence in connection with the defence of the litigation.
2. The cases make clear that "dominant" does not mean merely "primary" or "substantial" but "clearly paramount": see Spigelman CJ (with whom Sheller JA and MW Campbell AJA agreed) in Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [7] and Tavcol, above at [21]. The relevant purpose is to be determined objectively but the subjective intention of the person responsible for the creation of the document (or the making of the communication) is not irrelevant: Spigelman CJ in Sydney Airports Corporation at [6].
3. In determining this question, the following matters are noted as being clear as at August 2012 (when the documents were likely created): 1. The plaintiff had made a claim against each of the defendants relating to the insurance policies responding to the alleged death of Mr Safronov; 2. Each of the defendants had denied the plaintiff's claim; 3. Proceedings had been commenced by the plaintiff against each defendant in 2011; 4. Centricity had been retained by the defendants and Centricity in turn had retained Vlasta Consulting. As Mr Iacuzzi states in his 29 March 2017 affidavit at paragraph 21, to prepare their evidence relating to the allegations in the proceedings, the defendants' investigations continued after the proceedings commenced and these investigations were carried out by Centricity which, in turn, continued to retain Vlasta Consulting.
4. I have reviewed the affidavit material placed before the court. I have also had the advantage of reviewing the unredacted documents which are attached to the affidavit of Matthew Corkhill sworn 29 March 2017. I have set out the evidential matters above in relation to the history of when the proceedings were commenced, the fact that Turks Legal have acted for the defendants, the fact that Centricity were retained by Turks Legal and the fact that Vlasta Consulting were retained by Centricity. I have considered the role of the two investigators.
5. Having reviewed the factual material which I have set out above and having looked at the emails and other documents in their context, I am satisfied that there is factual material before me to establish the circumstances in which the documents were created and/or communicated.
6. I am satisfied from the material which I have referred to that the defendants have established that the documents and/or communications over which privilege is claimed were brought into existence or made for the dominant purpose of the defendants seeking or being furnished with legal advice by a practising lawyer or for the dominant purpose of preparing for the existing proceedings.
7. I am also satisfied from looking at the documents, that the documents in the circumstances in which they were made and/or communicated were confidential documents and were created for the dominant purpose of the defendants through their solicitors Turks Legal obtaining evidence for use in the defence of the three proceedings. The documents were all created or communicated some time after proceedings were commenced. Having reviewed the documents carefully, I am satisfied that the creation of the documents and/or their communication was for the dominant purpose of making investigations and obtaining evidence for use in, or preparing for, the defence of the proceedings.
8. In forming the above conclusions, I am conscious of the fact that the onus rests on the party who claims privilege for a communication or document to prove that it was prepared for the dominant purpose of the provision of professional legal services relating to an Australian or overseas proceedings or anticipated proceedings in which the client is or may be a party: Hastie Group, above. Having reviewed all the documents in my view this evidential onus has been satisfied by the defendants.
9. In my view, I am able to make inferences from the documents in the light of the evidence as to the dominant purpose for the creation of the documents and in my view the proper inference to be drawn is that they were created for the dominant purpose of the provision of professional legal services in relation to these proceedings.
10. I am also satisfied of this matter in relation to the highlighted document having regard to the evidence of Mr Corkhill in his affidavit dated 20 June 2017 and his oral evidence which I have referred to above.
11. Despite what appears in paragraphs 29-33 of the plaintiff's written submissions in chief, I accept the submissions on behalf of the defendants that the proper inference to be drawn from the fact that the material in the highlighted document which appears in the Microsoft Word document and not in email three, is that Mr Solomanidin initially created his response to Turks Legal's requests as a Word document and cut and pasted part of it into an email leaving part out being the highlighted document.

Confidential nature of the communications

1. Having reviewed the documents and having considered Mr Corkhill's oral evidence, I am satisfied that all of the documents record confidential communications passing between the investigation agents and Turks Legal, the solicitors for the defendant, or record confidential communications passing between the two investigators or a confidential document in the case of the highlighted document. The confidential nature of the communications and documents is clear from their terms and the context in which they were made.

Inadvertent disclosure and waiver

1. The affidavit of Matthew Corkhill sworn 20 June 2017 which was read by the defendants on the application, establishes to my satisfaction that the documents over which privilege was claimed had been inadvertently discovered to the solicitors for the plaintiff. The defendants asserted that this inadvertent discovery did not affect the defendants' right to claim privilege over those documents.
2. Waiver of privilege occurs where a party entitled to claim legal professional privilege performs an act which, in all the circumstances, is inconsistent with the confidential nature of the privilege.
3. Waiver may be express or implied: Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475. At common law, where a party entitled to claim a privilege uses the communication or document in a way which would make it unfair or misleading to the other side to maintain the privilege, a waiver occurs: Maurice, above, at 481-2, 487-8, 492-3; Mann v Carnell (1999) 201 CLR 1. There is in such a case an inconsistency as a matter of fairness between the conduct of the client and maintenance of confidentiality: Mann at [29].
4. Similar principles apply under the Evidence Act. Under that Act a waiver occurs where there is express or implied consent to disclosure: s 122. This can be implied if the client or party concerned has acted in a way which is inconsistent with the maintenance of the privilege. There is a focus on whether the substance of the communication or document has been disclosed: s 122(3). Issues of fairness will inform the assessment of inconsistency as under the common law.
5. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, the High Court considered the inadvertent discovery of documents. Documents subject to client legal privilege were mistakenly listed as non-privileged documents in the appellants' lists of documents and were inadvertently disclosed to the respondents' solicitors.
6. Five judges of the High Court in a joint judgment stated as follows at [60]-[67]: [60] What the court was faced with was a mistake which had occurred in the course of discovery. It was necessary that the mistake be corrected and the parties continue with their preparation for trial. [61] This was not a case where the fact of mistake was disputed. There was no conduct on the part of Norton Rose and its clients which would have weighed against the grant of that relief. There was no delay of any significance in the mistakes being notified or confirmed. The primary judge was not persuaded that the Armstrong parties would be prejudiced by requiring the disks to be returned. [62] It is difficult to see what benefit the Armstrong parties could have believed would be obtained by them by attempting to retain the documents. The possibility that they might support a further claim in the nature of a conspiracy between the ERA parties was canvassed. A similar claim had previously been struck out. It was not apparent to Sackville AJA in the Court of Appeal that the additional claims would add anything of substance. It is not immediately obvious how an attempt to replead such a claim could be said to advance the overriding purposes of the CPA. [63] Further, in reality, there was no question of waiver sufficient to be agitated before the court. The documents disclosed during the discovery process were privileged, and Norton Rose's claim that disclosure occurred by mistake was not disputed. Any allegation of waiver was going to turn on a legal, technical argument tangential to the main proceedings, and should not have been made. Solicitors' responsibilities [64] The question for a party to civil proceedings and its legal representatives is not just whether there is any real benefit to be gained from creating a dispute about whether a mistake in the course of discovery should be corrected. The CPA imposes a positive duty upon a party and its legal representatives to facilitate the CPA's purposes. Requiring a court to rule upon waiver and the grant of injunctive relief in circumstances such as the present could not be regarded as consistent with that duty. [65] The position of solicitors who are in receipt of privileged documents has another dimension. Rule 31 of the Australian Solicitors' Conduct Rules, which were adopted by the Law Council of Australia, deals with the duty of a solicitor to return material, which is known or reasonably suspected to be confidential, where a solicitor is aware that its disclosure was inadvertent. It involves notifying the other solicitor of the disclosures and returning that material. The rule has been adopted in Queensland and South Australia and the Law Society of New South Wales presently proposes to adopt it. [66] Such a rule should not be necessary. In the not too distant past it was understood that acting in this way obviates unnecessary and costly interlocutory applications. It permits a prompt return to the status quo and thereby avoids complications which may arise in the making of orders for the rectification of the mistake and the return of documents. [67] This approach is important in a number of respects. One effect is that it promotes conduct which will assist the court to facilitate the overriding purposes of the CPA. It is an example of professional, ethical obligations of legal practitioners supporting the objectives of the proper administration of justice.
7. There was no real dispute in the present case that the disclosure by the defendants' solicitors of the documents was inadvertent. There was no relevant cross-examination of Mr Corkhill in relation to this issue.
8. Having considered the matters in paragraphs 34 and following in the submissions in chief of counsel for the plaintiff and the matters raised in their reply submissions, I do not consider that there was a waiver by the defendants as alleged. Despite the submissions made in paragraph 35 of the submissions in chief of counsel for the plaintiff, I accept that the documents over which privilege is claimed had been inadvertently discovered by the solicitors for the defendants to the solicitors for the plaintiff. The conduct was careless, but having regard to the number of documents and their complexity, errors in the discovery process sometimes occur. It must be recalled that it is the privilege of the client to waive not the solicitor.
9. In relation to the assertion that the defendants acted in a manner that is inconsistent with maintaining any right to assert a claim for privilege, I take into account the matters in paragraphs 36 to 40 of the submissions in chief of counsel for the plaintiff.
10. However, Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529 which is relied upon by counsel for the plaintiff was a case in which counsel for one of the parties read to the court parts of a privileged document of that counsel's client. Similarly, the other case relied upon was a failure to object to a question, the answer to which involved the disclosure of information otherwise privileged: Divall v Mifsud [2005] NSWCA 447, per Ipp JA at [6]. See also McColl JA at [10].
11. In my view those are very different situations to the present case. The use of the highlighted document in the present case was by counsel for the plaintiff not by counsel for the defendants. Accordingly, the case is relevantly different to the Great Atlantic Insurance Co case.
12. In relation to the handing of the highlighted document up to the court, and the failure by senior counsel for the defendants to take an immediate objection, this was remedied fairly promptly. The circumstances in which the document was handed up and the fact that this was done in the course of comments and submissions by counsel for the defendant do not, in my view, constitute a waiver. In the case of an answer to a question in court as in Divall, above, that answer becomes part of the evidence in the context of a knowing and voluntary disclosure.
13. I accept the submissions by counsel for the defendants in paragraphs 33-34 of their submissions. Objections to the admissibility of documents are usually taken at the time the document is tendered or a question is asked and the document was not tendered on the relevant occasion by the defendants.
14. Having regard to the clear statement of principle in the Expense Reduction case I do not believe that any waiver occurred.
15. It seems to me to be inconsistent with general principle for counsel for one party to hand up a privileged document inadvertently disclosed by the other party and then claim that a waiver has occurred unless there is a clear inconsistency and unfairness. The document was not tendered and senior counsel for the defendants did not appear to me to be immediately aware of the background and significance of the document: T89-90.
16. The next matter to be considered is the submission that there was a waiver by reason of the quoting by counsel for the defendants of part of email three in paragraph 38 of the written submissions of counsel for the defendants dated 1 August 2017.
17. This is, in my view, a stronger submission. Clearly it should be inferred that counsel for the defendants in quoting the document voluntarily sought to utilise its contents in support of the argument that the highlighted document should be read in a certain way.
18. Did that amount to a waiver in circumstances where the email had already been inadvertently disclosed to the solicitor for the plaintiff? In particular, was it inconsistent with the privilege for counsel for the defendants to use part of the document in their submissions?: Mann v Carnell, above.
19. Having considered this issue carefully and having reviewed email three in its totality, I do not consider there has been a waiver. The part of the document quoted in paragraph 38 of the defendants' written submissions is of an introductory nature only and does not reveal the substance of the advice and the result of the searches in the body of the document.
20. I take into account in reaching this conclusion that the part quoted has not become part of the evidence nor part of the court transcript and therefore part of the record as occurred in the Great Atlantic Insurance Co case.
21. If I am wrong in this conclusion, the waiver should, in my view, be limited to the part quoted and the previous advice referred to in the part quoted.

Alleged inconsistency in the claim for privilege

1. In Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1 Clarke J accepted a submission from a defendant insurer that a loss assessor's report which the insurer had obtained should not be served on the plaintiff, even though the defendant proposed to use it at the hearing because: "… The interests of justice would not be served by producing the document because it contains material which does not advance the plaintiffs' case but which on the other hand would, if the plaintiffs are not genuine, put the plaintiffs on notice of some allegedly suspicious circumstances and enable them to tailor or endeavour to tailor their evidence to meet the circumstances."
2. The approach by Clarke J has since been followed by the Court of Appeal in Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265 at [77]-[86], [107].
3. In the present case, the defendants obtained Markus orders in relation to some of their materials.
4. The plaintiff claims that there is an inconsistency between the defendants' application for orders in the nature of Markus orders and the present claim made for privilege.
5. In particular, the plaintiff relies on the highlighted document.
6. In relation to the question of inconsistency on the Markus orders application, I have carefully reviewed the contents of paragraphs 41-61 of the plaintiff's submissions in chief and their reply submissions. In my view, there is no inconsistency between the defendants' application for Markus orders and the claim for privilege which they make.
7. I agree with paragraphs 36-39 of the written submissions of counsel for the defendants. In my view, a proper reading of the highlighted document shows that Mr Solimadinan from Vlasta Consulting meant simply that the information he had obtained was obtained "unofficially" and not in fact "illegally". It must be recalled that Mr Solimadinan was based in Russia and would not be expected to have a thorough understanding of the nuances of the English language. This is clear, in my view, from the language used in the unredacted emails which are attached to Mr Corkhill's affidavit dated 29 March 2017. That is not to say that Mr Solimadinan's English is not very good, but it is not in the same nature of English that would be used by Australian solicitors or investigators. The conclusion able to be drawn is that the documents were not obtained officially through an attorney at law but from unofficial sources.
8. I am also not willing to conclude on the evidence, as submitted by counsel for the plaintiff, that at the time Ms Godfrey prepared her affidavit in 2012 that the defendants knew that the documents had been obtained illegally. I do not see there being any inconsistent conduct in the present case which would amount to an imputed or implied waiver of privilege within the principles in Mann v Carnell (1999) 201 CLR 1. In my view Section 125 of the Evidence Act is also inapplicable. For the reasons which I have given in relation to the inconsistency argument, in my opinion there was no deliberate abuse of statutory power in the present case being the abuse through the exercise of a power which is conferred by or under Australian law.
9. It follows that there is no associated waiver as submitted by the plaintiff.
10. For the reasons which I have given above, in my view the privilege is maintained in relation to each of the documents.
11. I now turn to consider the orders sought in the plaintiff's Notice of Motion filed 25 September 2017 seeking orders for: 1. The examination of Mr Peart and the relevant officers of the defendants who provided the affidavits of discovery; and 2. A referral of Centricity or each of the defendants to the Supreme Court for prosecution for contempt.
12. My conclusion as to privilege and waiver means that such orders are inappropriate.
13. Even if privilege was not attached to the documents or was waived, I consider that the orders sought should not be made for the following reasons: 1. I find on the basis of Mr Corkhill's affidavit and oral evidence that Centricity did not have the highlighted document but rather it was held by Vlasta Consulting; 2. There is force in Mr Cavanagh's oral submission that it is highly likely that each officer of the defendants providing the affidavits of discovery relied on advice from Turks Legal as to the documents in the discovery lists and privilege claims. This is the general course adopted in all but the simplest cases; and 3. I do not consider that there is any real evidence of inappropriate conduct by any of the persons involved in relation to discovery/production.
14. I accordingly make the following orders: 1. The plaintiff's application to have access to all documents produced under subpoena by Centricity Ci Pty Ltd and the documents for which privilege is claimed in the defendants' supplementary list of documents dated 28 March 2017 is dismissed; 2. The Notice of Motion filed by the plaintiff on 25 September 2017 is dismissed. 3. The costs of the applications are reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 October 2017