1. Between 21 July 2025 and 10 September 2025, Mr A produced three documents and notified the Court and the applicant of the existence of two further documents over which he claims, and maintains, client legal privilege. They are:

(1) An email from Mr A to Ms Cindy Christian ('Ms Christian'), a solicitor at MinterEllison, on 21 March [redacted] ('Document 1'); and

(2) A collection of handwritten notes authored by Mr A ('Document 2').

1. Mr A contends that the entirety of Document 1 is a confidential communication between Mr A and his solicitor, made for the purpose of obtaining legal advice in relation to defamation proceedings against [redacted] including Mr A ('the Defamation Proceedings'). Ms Christian was the solicitor with the day-to-day conduct of the Defamation Proceedings for the defendants, including Mr A.
2. Mr A contends that Document 2 was collated for the purpose of obtaining professional legal services in the Defamation Proceedings. Document 2 was discovered in redacted form in the Defamation Proceedings.
3. On 10 September 2025, Mr A produced to the Court and the applicant a copy of Document 2 in the form in which it was discovered in the Defamation Proceedings. This document has been referred to between the parties in this interlocutory proceeding as the 'Discovered Document.' Mr Dean Levitan has deposed in an affidavit dated 10 September 2025 that the Discovered Document is identical to Document 2 save that the Discovered Document has an additional page at the start and contains redactions. Mr A claims client legal privilege over those parts of Document 2 that were redacted at the time it was previously produced in the Defamation Proceedings.

1. The law of evidence in respect of client legal privilege is governed by the Evidence Act 2008 ('the Evidence Act').
2. Section 118 of the Evidence Act provides:

Legal Advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing 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.

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.

1. Relevant to this application, section 131A of the Evidence Act provides that these provisions apply to the production of documents in accordance with disclosure requirements.
2. Section 9 provides that the Evidence Act does not affect the operation of the common law in relation to evidence in a proceeding to which it applies except as is otherwise expressly provided. The Evidence Act is not a complete code of the laws of evidence.[5] Guidance can be found, and is to be derived, from case law. To that end, it should be observed that the principle of legal professional privilege is more than a rule of evidence. The High Court has held that legal professional privilege is a substantive rule of law.[6] That 'substantive rule of law' is affected by the terms of the Evidence Act where the Act applies.[7]
3. The test for the attachment of privilege to a document or communication is the dominant purpose test. Pursuant to the statutory provisions, a document or communication will be privileged and protected from production where it can be shown that the dominant purpose for the making of the document or communication was either:

(a) the provision of legal advice by a lawyer to their client; or

(b) the provision of professional legal services to the client in relation to court proceedings.

1. The parties agreed with these basic principles. They also agreed that, where an issue of client legal privilege arises for determination, it is a question of fact. The purpose for which a document or communication was made is to be assessed objectively.[8]
2. The onus of proof lies with the party making the claim of privilege. That prevails even where, as in this case, the privilege is asserted in response to an order for production.[9]
3. The parties also agreed that the burden of proof to be met by Mr A is the balance of probabilities.
4. The issues that arise for determination between the parties can be summarised as follows:

(a) Whether Mr A has discharged his onus to establish that the two documents are privileged;

(b) In the alternative, and in the event that the Court finds that privilege is established, whether the privilege has been waived in respect of document two; or

(c) Also in the alternative, whether document two is a copy of an unprivileged document where the original is no longer available and whether the qualification described by Brennan CJ in the case of Propend applies.

1. In the reasons that follow, I will deal with each issue in turn but will deal with the so called Propend qualification prior to turning to the question of waiver.

1. The applicant contends that Mr A fails to establish on the balance of probabilities that privilege attaches to either document because the evidence is either inadmissible hearsay or is of such limited weight as to be insufficient.
2. Whilst being cognisant that it is for Mr A to establish privilege, the preliminary point raised by the applicant in respect of the admissibility of the hearsay evidence relied upon by Mr A needs to be resolved prior to considering the weight and sufficiency of that evidence in his claim of privilege. It is for that reason that I turn first to the argument in respect of hearsay evidence raised by the applicant.

1. At the hearing, counsel for the applicant submitted that the only evidence relied upon by Mr A is the affidavit of Mr Levitan affirmed on 10 September 2025 ('the September Affidavit'). In that affidavit, Mr Levitan deposes to information and belief based on instructions received from Mr A.
2. Counsel for the applicant took issue with the admissibility of this evidence. In doing so, they relied upon the following passage from the judgment of Brereton J in Hancock v Rinehart (Privilege):

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.

...

A claim for privilege must be made on sworn direct evidence - not inadmissible hearsay or opinion - proving the facts on which the claim is founded. This is unaffected by the court's discretionary power to require production in order to enable inspection for the purpose of adjudicating the claim, which exists to enable a claim for privilege to be scrutinised, not to enable it to be proved.[10]

1. This proposition from Rinehart in turn derives from the judgment of Brennan CJ in Commissioner of Australian Federal Police v Propend Finance Pty Ltd.[11]
2. The applicant referred the Court to the following excerpted passage from that judgment:

In determining the claim of privilege, the court is not reviewing judicially an executive action but is determining a distinct controversy between the person who seeks to inspect the seized document and the person who seeks to maintain its immunity from inspection on the ground of legal professional privilege. To determine that controversy, the court must act upon admissible evidence, not upon hearsay.[12]

1. Mr A's response to the applicant's challenge to the admissibility of hearsay evidence was to cite s 75 of the Evidence Act which reads as follows:

Exception - interlocutory proceedings

In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.

1. This is an interlocutory proceeding, his counsel argued, in which no objection was raised to the tender of the September Affidavit. Counsel for Mr A also argued that the nature of client legal privilege is such that a claimant ought be able, without the risk of undermining their claim, to rely upon affidavit material deposed by their legal representative in support of that claim.

Consideration - The case of Propend on the hearsay issue

1. It will be observed that the argument advanced on hearsay evidence, and the authorities as cited by the applicant in support of that argument, appear to be in conflict with the statutory provision and other authorities.[13] The authority of Propend is cited by the applicant, not only in support of his assertion that hearsay evidence is not admissible in support of a claim of privilege, but as the basis for a separate challenge to the privilege claimed by Mr A over Document 2. I will return to that aspect of the case when I come to consider the applicant's challenge arising from it. For now, and to understand and consider its relevance to the admissibility of hearsay, it is sufficient to note that the case of Propend related to documents seized at a solicitor's office in the execution of a search warrant. On appeal from the Federal Court to the High Court, two special leave questions were posed. First, whether legal professional privilege applies to a copy document where no privilege attaches to the original; and secondly, whether hearsay material may be relied upon to displace legal professional privilege where the privilege is claimed for a document alleged to have been made in furtherance of an illegal or improper purpose.
2. It will be observed that the consideration of the use of hearsay evidence before the High Court in Propend was not focused on the evidence admitted in support of a claim of privilege. Rather, the focus was on evidence relied upon to displace such privilege with an allegation of production for illegal or improper purpose. Before returning to the passage from the judgment of Brennan CJ in Propend relied upon by the applicant, it is useful to consider an alternate articulation of the issue before the High Court in that case. Dawson J recorded the issue as follows:

The other question which arises is whether hearsay evidence was admissible to establish that certain of the documents in question failed to attract legal professional privilege because there was a sufficient indication that they were brought into existence in furtherance of a crime or fraud. That limit upon the ambit of legal professional privilege was first recognised in R v Cox and Railton. It is only those communications passing between a legal adviser and his or her client in professional confidence which are privileged and a communication made by the client for assistance in the commission of a crime or fraud lies outside any legitimate professional relationship. The issue in the present case is the nature of the evidence required to establish that the privilege is excluded on this ground.[14]

1. With respect, I disagree that the assertion cited by the applicant from Hancock v Rinehart is supported by High Court authority. Reading the extract from Propend relied upon by the applicant in context, I am not persuaded that it supports broad application of a rule against the admissibility of hearsay in interlocutory determinations of privilege issues. I repeat below, and add emphasis to, the passage from Propend relied upon by the applicant in the context of surrounding passages from the judgment:

When a claim of privilege attaching to a document seized under a warrant comes to be determined judicially, the court must ascertain for itself whether the document was brought into existence solely for a privileged purpose and, if it be found or assumed that the document is a copy of an unprivileged original but was brought into existence solely for a privileged purpose, whether the privilege has been lost. In determining the claim of privilege, the court is not reviewing judicially an executive action but is determining a distinct controversy between the person who seeks to inspect the seized document and the person who seeks to maintain its immunity from inspection on the ground of legal professional privilege. To determine that controversy, the court must act upon admissible evidence, not upon hearsay. In the present case, Davies J had regard to the sworn information laid before the issuing justice. That material was admissible to establish the basis on which the search warrant was issued and thus to support the validity of the issue of the warrant, but it was not admissible to show that the copy documents found in the custody of solicitors were not privileged.[15]

1. I am further convinced that the passages relied upon do not preclude the reliance on hearsay evidence in an interlocutory hearing of a privilege claim, by the significant weight of authority, including other members of the bench in Propend.[16] I also note that Brereton J in Hancock v Rinehart limited his exhortation against hearsay in a privilege claim to inadmissible hearsay.[17]

in interlocutory proceedings hearsay is ordinarily admissible in the form of affidavit evidence upon the basis of information and belief.[18]

1. This is the same exception to the hearsay rule provided by s 75 of the Evidence Act.
2. This Court will need to consider the weight to be attributed to the hearsay in this interlocutory application, but it is otherwise admissible.

1. What is clear from the authorities is that, in a claim for privilege:

...focused and specific evidence is required in respect of each communication, rather than mere generalised assertion let alone opaque and repetitious verbal formulae. There should be sufficient evidence which proves directly or by inference that the dominant purpose for the communication was for the relevant client to be given or to obtain legal advice.[19]

1. The applicant takes issue with the sufficiency of the evidence presented by Mr A. Before turning to the arguments about sufficiency, I will outline the material filed by Mr A in support of his privilege claim.

1. Mr A relies upon the September Affidavit as well as his written and oral submissions to substantiate his claim. Both documents, his lawyers submit on his behalf, were provided confidentially by him to his lawyers for the dominant purpose of obtaining legal advice and/or legal services during Defamation Proceedings [redacted]. It is submitted that the time the documents were made, and their origin, support the claim of privilege.
2. The September Affidavit provides a relevant brief chronology for the Defamation Proceedings as follows:

(a) On [redacted] commenced the Defamation Proceedings in the Supreme Court of Victoria [redacted] against [redacted] including Mr A;

(b) On 28 November [redacted] the defendants filed a defence;

(c) On 13 February [redacted] the defendants filed an amended defence;

(d) On [redacted] filed a Further Amended Statement of Claim;

(e) On or about 29 February [redacted] Mr A collated handwritten notes relevant to the Defamation Proceedings into a single document, constituting Document 2.

(f) On 21 March [redacted], Mr A sent an email to a solicitor at MinterEllison, constituting Document 1;

(g) On 8 April [redacted], the defendants made discovery of Document 2 in the form of the Discovered Document;

(h) On 20 May [redacted], the Court ordered by consent that the proceeding be dismissed without adjudication on the merits.

1. In respect of Document 1, an email sent by Mr A to Ms Christian on 21 March [redacted], Mr A submits that Ms Christian was the solicitor with the day-to-day conduct of the Defamation Proceeding on his behalf. The email was sent for the purpose of obtaining legal advice in relation to the proceeding while that proceeding was on foot. The parties to the communication and its timing are instructive.
2. With respect to Document 2, Mr A submits that these are handwritten notes relevant to the Defamation Proceeding. They were collated and provided to MinterEllison while those proceedings were on foot. The relevance of the notes to the Defamation Proceeding is supported by their discovery in the Defamation Proceeding.
3. Both documents were transmitted by Mr A to his lawyers. Mr A submits that it is apparent from the dates of transmission and the proximity of those transmission dates to procedural steps in the Defamation Proceeding, that both Documents were prepared and transmitted for the dominant purpose of obtaining legal advice/professional legal services or for use in that proceeding.
4. As to the sufficiency of his material, Mr A refers to the observation of Black CJ and Emmett J in Kennedy v Wallace that:

...in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought and being given.[20]

1. Mr A contends therefore that, in this case, it is appropriate for the Court to assume that the material he submits provides more than sufficient basis to conclude that legal advice was being sought and given. Further, the gaps in Mr A's material identified by the applicant, to which I will refer shortly, do not together or individually amount to material necessary for the determination of his claim of privilege.
2. Among the authorities the Court was taken to by Mr A was the case of Grant v Downs and the following passage:

[A party claiming privilege] 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 privileges necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents for itself, a power that has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence.[21]

1. I have not inspected the documents but note that a copy of Document 2 has been reviewed not only by the Court but by the applicant in a partial, abridged, and redacted form referred to in this proceeding as the Discovered Document.[22]

1. The applicant's core contentions are that Mr A has failed to provide adequate evidence and/or that the evidence he has provided is of insufficient weight to satisfy the Court that the documents fall within the ambit of sections 118 and 119 of the Evidence Act.
2. As already noted, material submitted by Mr A in support of his claims of privilege are the September Affidavit, along with submissions filed on 10 September 2025 and 2 October 2025. The applicant argues this is too limited. In making that criticism, Mr A cites the ample time available to Mr A since the orders for production were made on 8 March 2024 and the notification of the existence of the documents on 21 July 2025.
3. As already discussed at some length, the evidence relied upon by Mr A is hearsay; being the September Affidavit. As to the weight and sufficiency of this evidence, the applicant argues that this affidavit represents the entirety of the evidence relied upon to establish the purpose for which Document 2 was transmitted and that therefore Mr A relies solely upon hearsay and inferences said to be reasonably drawn from the time and context of the transmission of Document 2. A further weakness is the fact that Mr A has not gone into evidence and has not been available for cross-examination.
4. The applicant also points to particular deficiencies in the evidence advanced by Mr A. The particular purpose in providing Document 2 is not described. Nor is the form and means by which Document 2 was provided by Mr A or the role MinterEllison had as legal adviser at the time it was provided to them.
5. A further point going to weight was raised based on reliability, given that Mr A has, by his belated production. been shown to have previously been incorrect in his response to the production ordered by the Court on 8 March 2024. That is, he initially said he held no documents and then, having provided that information, did not initially inform the applicant and the Court that part of one of the documents had been discovered in the Defamation Proceedings.
6. In summary, the applicant submits that all Mr A has provided in support of his claim are hearsay assertions that are of minimal weight and his claim ought to be rejected.

1. Confidential communications between a lawyer and a client for the dominant purpose of either the provision of advice or professional legal services are protected by the operation of the Evidence Act and the privilege described in ss 118 and 119 respectively.[23] The purpose for which a document is brought into existence is a question of fact and is to be determined objectively.[24] The onus lies with the person claiming the privilege, in this instance, Mr A. To discharge that onus, a claimant may rely upon evidence of the circumstances and context in which the communications occurred or in which the documents were brought into existence, or by reference to the nature of the documents supported by argument or submissions.[25]
2. Mr A relies on an affidavit of his current lawyer employed by the firm who represented him in the Defamation Proceeding and two sets of submissions prepared by his counsel. The applicant submits that he had enough time to prepare more than this. The inference being that more was available and required or necessary. I am unsure how this is relevant. Mr A did not seek to excuse either the brevity or sufficiency of his material.
3. The applicant complains that there is no evidence of Mr A and that Mr A has not been cross examined in respect of further matters that were raised by the applicant about purpose. That is, what, how and why the material was communicated with his lawyers. In my view, these details are unnecessary to determine the question of dominant purpose. Objective purpose was capable of being satisfied by the material filed which included the discovered version of Document 2.
4. Lastly, the belated revelation of the documents responsive to the production order of 8 March 2024 by Mr A and or his legal practitioners is not a reason to attribute less weight to the material they file in respect of the claim of privilege.
5. In this case, I find that Mr A has discharged his onus.
6. Document 1 is an email communication between Mr A and the solicitor with the conduct of his defamation proceedings. The nature of the document, its origin and timing are sufficient to satisfy the onus as to its dominant purpose. I am satisfied that privilege attaches to Document 1.
7. Document 2 is a collation of handwritten notes created by Mr A in the context of the Defamation Proceedings and provided to his lawyers during the life of those proceedings. The nature of this document alone is not determinative of purpose. It is already noted that the Court and the applicant have had the opportunity to review a portion of Document 2.
8. In the September Affidavit, Mr Levitan deposes to information and belief held as a partner of the firm representing Mr A. In my view, he is well placed to make such an affidavit from information and belief. Although containing hearsay statements, it is made by a legal practitioner with the day-to-day supervision of these proceedings on behalf of Mr A and a partner in the law firm that had the conduct of the Defamation Proceedings during which Documents 1 and 2 were created or provided. No issue is taken by the applicant with the fact of the Defamation Proceedings. The September Affidavit contains a recitation of the relevant history of a litigation file, is clearly based on a contemporaneous record and, in the circumstances of this case, it is sufficient.
9. Mr Levitan deposes in the September Affidavit the circumstances in which the collection of handwritten notes was created by Mr A and provided to his lawyers in February [redacted]. Mr Levitan also deposes to the fact that the collection of handwritten notes was discovered in redacted form in the Defamation Proceedings, that the Discovered Document is identical to Document 2, but the discovered version of the handwritten notes had an additional cover page attached.
10. I do not doubt the reliability of Mr Levitan in these matters. Although the applicant raised questions about the reliability of Mr A's legal team, I note that Mr Levitan was not sought to be cross-examined.
11. The facts as deposed and the context and timing of the communication in respect of the handwritten notes discharge the onus in respect of the dominant purpose for the provision of them by Mr A to his lawyers. I am satisfied that privilege attaches to Document 2.
12. In the event that the Court was to find that privilege attached to the documents, the applicant argued that the claim in relation to Document 2 was either defeated by the qualification described by Brennan CJ in the case of Propend, or, alternatively, had been waived by Mr A. I will discuss each of these arguments in order.

1. In the September Affidavit, Mr Levitan deposes that an original of the handwritten notes (a copy of which is Document 2) is no longer in the possession of Mr A. The applicant argues that Mr A's claim of privilege over the copy document is therefore defeated in the manner articulated by Brennan CJ in Commission of Australian Federal Police v Propend Finance Pty Ltd.[26] The following excerpt from the judgment of Brennan CJ is cited in support of the applicant's argument:

...if an original unprivileged document is not in existence or its location is not disclosed or is not accessible to the person seeking to execute the warrant and if no unprivileged copy or other admissible evidence is made available to prove the contents of the original, the privileged copy loses the privilege. The loss of privilege can be avoided by the production of a copy of the original (which might be produced by copying the privileged copy) the accuracy of which is verified by a person having knowledge of the contents of the original. So long as a copy of the unprivileged original (with verification if necessary) or other secondary evidence of its contents is available to be tendered to prove the contents of the original, the privilege attaching to any copy of the original can and should be maintained. Otherwise, I would hold the privilege of the privileged copy to be lost.[27]

1. The applicant submits that Mr A's handwritten notes, as collated into Document 2, represent the only complete copy of the records contained within Mr A's notebooks responsive to the s 317 orders. Mr Levitan deposes that Mr A no longer has any copies of any of the handwritten notes, individually or in collated form. As the collated copy of handwritten notes in Document 2 are the only complete or near-complete version of an unprivileged original responsive to the s 317 orders, the applicant argues that the privilege asserted is lost. It falls, he says, within the qualification articulated by Brennan CJ in Propend.
2. The case of Propend concerned a claim of privilege at common law over documents seized in the execution of a search warrant. In subsequent decisions, Macaulay J in Cargill (No 8), Barker J in Conlan v Walker and Crawford J in Dalrymple Park Pty Ltd v Tabe & Lees Pty Ltd,[28] have consistently expressed the view that the qualification in Propend is limited to circumstances where documents are seized under warrant. The applicant argues that the qualification ought not be so confined or, alternatively, that his case is otherwise distinguishable. The applicant argues that although he is in a judicial process he does not have alternative 'other secondary evidence'[29] available to him to obtain an original unprivileged document.[30] In Propend, Brennan CJ described alternative processes available in judicial and quasi-judicial proceedings such as discovery and an affidavit of documents in which the contents of an unprivileged original might be proved where the original is not available.[31] Because Mr A is not a party, the applicant submits that discovery is not a process that is available in relation to Mr A's document holdings.
3. Alternatively, the applicant argued that a s 317 order could be understood to be akin to a search warrant for all relevant purposes. The applicant submitted that, like a search warrant, where a judicial officer gives police the power to enter premises and seize particular items, a s 317 order directs that defined and particularised categories of documents be produced to the Court following a determination that such production is in the interests of justice.

1. In response to the applicant's reliance upon the qualification expressed by Brennan CJ in Propend, Mr A firstly submits that the qualification has no application as the collection of handwritten notes were at all times privileged.
2. As to the application of Propend more broadly, Mr A submitted that there is real difficulty in establishing whether the qualification should apply at all, let alone be extended to operate within judicial proceedings. Supportive of this submission, Mr A points to the fact that the qualification was not adopted or endorsed by any other member of the Court in Propend. Additionally, Mr A submitted that subsequent decisions at first instance have expressed doubt as to whether the qualification applies, concluding that, if it is to apply, it ought to be limited to documents seized under a search warrant.[32]
3. Mr A further observed that the policy reasons cited as justification for a qualification in respect of documents seized under a search warrant do not apply in respect of documents produced in judicial or quasi-judicial proceedings and therefore do not apply here. Mr A submits that the qualification was a means of ensuring that the privilege did not impair the administration of justice outside judicial or quasi-judicial proceedings.
4. Mr A concludes that, to the extent that the judgment of Brennan CJ in Propend establishes a rule that privilege is lost over a copy document where no other version of an original document is available, it does not - and should not - go beyond the narrow ambit identified by Brennan CJ in Propend. To conclude otherwise, in Mr A's submission, would be to trample on the important immunity that is legal professional privilege.

1. The proposition from Propend that has been consistently cited and applied is that a copy of a non-privileged document transmitted for a privileged purpose, i.e., to obtain advice, is thereafter protected by privilege. It is the further qualification that is in issue here; that is, that this privilege will not apply to a copy document transmitted for a privileged purpose where the original document is unprivileged and is no longer available.
2. Document 2, the only document in respect of which the applicant makes this argument, is not a copy of an unprivileged document. It is a copy of a document, a partially redacted version of which was previously discovered in the Defamation Proceedings. Mr A maintains a claim of privilege in respect of the redacted portions of the document. The unredacted portion has already been provided to the applicant.
3. On this view, the rule in Propend has no factual application here. Document 2 had no unprivileged original. There is no need to consider the qualification to the rule advanced by Brennan CJ further.
4. As far as applicable principle is concerned, the applicant faces at least three difficulties. His argument relies on a single judgment in the case of Propend. The qualification described by Brennan CJ was not adopted by any other member of the Court. Second, the qualification itself was explicitly limited to circumstances where the documents are seized in the execution of a search warrant. and lastly it has not been extended in its application by any authority asked to consider it since.
5. An order for production pursuant to s 317 of Criminal Procedure Act is akin to a subpoena.[33] It is a judicial process managed by the Court. It is not akin to the execution of a search warrant on a person or property by an investigatory or prosecuting agency. The process is managed judicially. Opportunities for challenge and litigation on issues that arise in respect of the documents are available in the production process.
6. Mr A's claim of privilege does not relate to the copy of an unprivileged document now lost or destroyed. The so-called Propend qualification has no application for that reason.
7. If I am incorrect in my understanding of the facts as they relate to Document 2, I find that the qualification in Propend, circumscribed as it was by Brennan CJ, does not apply here to documents produced pursuant to an order of the Court.

PART D: WAIVER

1. In the final point raised, the applicant submits that Mr A has waived his privilege over Document 2.
2. Section 122(2) of the Evidence Act provides:

Loss of client legal privilege: consent and related matters

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that it is inconsistent with client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

1. The applicant submits that, by producing the Discovered Document in the Defamation Proceedings, subject to redactions applied for reasons other than legal professional privilege, Mr A has engaged in conduct inconsistent with the maintenance of confidentiality that legal professional privilege is designed to protect. Mr A has, the applicant argues, waived legal professional privilege. The applicant submits that, as no claim of legal professional privilege was made over the document when it was discovered in the Defamation Proceedings, it is now inconsistent to claim this privilege over any part of that document in the current proceedings.

1. In short, Mr A submits that at no point has he acted in a way inconsistent with maintaining the confidentiality of the redacted portions of the Discovered Document. Therefore, he submits, he has not waived privilege.
2. Mr A, in his written submissions, concedes that the discovery of the Discovered Document in the Defamation Proceeding was inconsistent with the maintenance of the confidentiality of the unredacted portions of the handwritten notes.
3. However, Mr A noted that the redacted portions of the Discovered Document have never been disclosed, either in the Defamation Proceedings or in the current proceedings. It was submitted that discovering the document in the Defamation Proceedings in redacted form is consistent with the maintenance of the confidentiality of the redacted portions.

1. Waiver of privilege will arise where there is action inconsistent with the maintenance of confidentiality.
2. As the Court of Appeal observed in Viterra Malt Pty Ltd v Cargill Australia Ltd, the single test to be applied is contained in s 122(2) of the Evidence Act:

Assistance in understanding and applying that test may be derived from Mann v Carnell and other authorities applying either the common law or the statutory provision. However, each case will depend upon its own facts and circumstances and the drawing of general principles beyond the statement of the inconsistency test may risk departing from the terms of the statute.[34]

1. As the preferable course is to apply the test by adopting the language of the statute,[35] the question is whether Mr A, in previously discovering the handwritten notes in redacted form, acted inconsistently with objecting to producing the redacted portions in this proceeding on the basis of privilege.
2. The issue raised by the applicant is, in my view, more one of form than substance. The redacted portions of the Discovered Document remain confidential. In the maintenance of confidence Mr A has acted consistently with the claim he now makes. That is the substance. He did not claim client legal privilege on the previous occasion to maintain the confidence and that is the form.
3. Put another way, it is unnecessary that the maintenance of the confidentiality of a document be accompanied by an assertion of legal professional privilege for that claim to subsequently be available. The maintenance of confidence in the document is the key.
4. Mr A has acted consistently with the maintenance of the confidentiality of the redacted portions of Document 2. As already observed, he has discharged the onus of the privilege that he claims in respect of it. His claim is upheld as it relates to that document. The redaction of the document maintained the confidentiality of the concealed portions in the document discovered previously.

1. Mr A's claim of client legal privilege is upheld as it relates to Document 1 and to those portions of Document 2 redacted when it was previously discovered in the Defamation Proceedings.

[1] Mr A's name, identity and occupation are the subject of a non-publication order made by this Court on 2 September 2022. He has been referred to as alternatively 'Mr A' or the 's 317 Respondent' in these proceedings.

[2] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; [1997] HCA 3 ('Propend').

[3] For a more detailed outline of the appeal, see Madafferi v The King [2025] VSCA 191.

[4] Madafferi v the King [No 2] [2024] VSCA 14.

[5] Giurina v Director of Public Prosecutions (Vic) [2020] VSCA 54, [23].

[6] Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121, 161 (McHugh J); [1995] HCA 33.

[7] Re Southland Coal Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2006] NSWSC 899; (2006) 203 FLR 1, [14] (Austin J); [2006] NSWSC 899 in reference to Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, [9]; [2002] HCA 49.

[8] Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266, [30] (Kenny J); [2005] FCA 1247.

[9] Giurina v Director of Public Prosecutions (Vic) [2020] VSCA 54, [20], citing Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 689 (Stephen, Mason and Murphy JJ); [1976] HCA 63; Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332, 337, [11] (Batt JA, with whom Charles and Callaway JJA agreed); [2002] VSCA 59; AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30, 44, [44] (Young J); [2006] FCA 1234; Domain Paper (Australia) Pty Ltd v Galloway [2014] FCA 936, [30] (Murphy J); Archer Capital 4A Pty Ltd (as trustee for the Archer Capital Trust 4A) v Sage Group plc (No 2) [2013] FCA 1098; (2013) 306 ALR 384, [13]-[14] (Wigney J); [2013] FCA 1098; Gunns Ltd v Marr [2008] VSC 464, [37] (Kaye J).

[10] [2016] NSWSC 12, [7], [35] (emphasis added) (citations omitted).

[11] (1997) 188 CLR 501; [1997] HCA 3.

[12] Propend (1997) 188 CLR 501, 514 (Brennan CJ); [1997] HCA 3.

[13] For example, Evidence Act 2008 s 75; Selak v National Tiles Co Pty Ltd [2023] VSC 446, [9]; Chan v Valmorbida Custodians Pty Ltd [2021] VSC 527, [2]; Alphington Developments Pty Ltd v Amcor (No 4) [2021] VSC 6, [17]; Yong v Westpac Banking Corporation [2025] FCA 816; Setka v Dalton (No 2) (Legal professional privilege) [2021] VSC 604; SMBC Leasing and Finance, Inc v Flexirent Capital Pty Ltd (Discovery) [2025] FCA 459; Quebani Pty Ltd & Anor v McDonald's Australia Ltd [2023] VSC 16.

[14] Propend (1997) 188 CLR 501, 521 (Dawson J) (emphasis added) (citations omitted); [1997] HCA 3.

[15] Propend (1997) 188 CLR 501, 513-4 (Brennan CJ) (emphasis added); [1997] HCA 3.

[16] See, for example, Propend (1997) 188 CLR 501, 523 (Dawson J), 534 (Toohey J), 547 (Gaudron J); [1997] HCA 3.

[17] Hancock v Rinehart (Privilege) [2016] NSWSC 12, [35(2)]; See also Yong v Westpac Banking Corporation [2025] FCA 816, [60-1].

[18] Propend (1997) 188 CLR 501, 523 (Dawson J); [1997] HCA 3.

[19] Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796 (1 August 2014), [29].

[20] [2004] FCAFC 337; (2004) 142 FCR 185, 192, [27] (Black CJ and Emmett J); [2004] FCAFC 337.

[21] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 689 (Stephen, Mason, and Murphy JJ); [1976] HCA 63.

[22] This is the copy version of handwritten notes discovered in the Defamation Proceedings.

[24] Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266, 278, [30] (Kenny J); [2005] FCA 1247.

[25] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 677 (Barwick CJ); [1976] HCA 63.

[26] Propend (1997) 188 CLR 501; [1997] HCA 3.

[27] Propend (1997) 188 CLR 501, 512 (Brennan CJ) (emphasis added); [1997] HCA 3.

[28] Cargill Aust Ltd v Viterra Malt Pty Ltd (No 8) [2018] VSC 193, [28-9]; Conlan v Walker [2011] FCA 347, [20]; Dalrymple Park Pty Ltd v Tabe & Lees Pty Ltd [1997] TASSC 149, 3.

[29] To adopt the language of Brennan CJ in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 512; [1997] HCA 3.

[30] Cargill Aust Ltd & Ors v Viterra Malt Pty Ltd & Ors (No 8) [2018] VSC 193, [35].

[31] Propend (1997) 188 CLR 501, 509-10 (Brennan CJ); [1997] HCA 3.

[32] Dalrymple Park Pty Ltd v Tabe & Lees Pty Ltd [1997] TASSC 149, 3; Conlan v Walker [2011] FCA 347, [20]; Cargill Aust Ltd v Viterra Malt Pty Ltd (No 8) [2018] VSC 193, [28-9]; Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (No 5) [2018] FCA 2066, [61]; Holt v Mitsubishi Motor Corporation [2025] FCA 191.

[33] Polimeni v The Queen [2021] VSCA 329, [25] referring to Zirilli v The King [2021] VSCA 174, [59(d)].

[34] Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118; 58 VR 333, [72].

[35] Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118; 58 VR 333, [76].