Maresh v The Owners - Strata Plan No 13134 - [2023] NSWCATCD 37 - NSWCATCD 2023 case summary — Zoe

NSWNSWCATCD

Maresh v The Owners - Strata Plan No 13134

[2023] NSWCATCD 37

NCAT Consumer and Commercial|2023-05-30|Before: Blake AM

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At a glance

Source facts

Court

NCAT Consumer and Commercial

Decision date

2023-05-30

Before

Blake AM

Catchwords

(2007) 67 ATR 284
[2020] FCAFC 181 Cook v Pasminco Ltd (No 2) (2000) 107 FCR 44
[2000] FCA 1819 CSR Ltd v Eddy (2008) 70 NSWLR 725
[2008] NSWCA 83 Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543

Source

Original judgment source is linked above.

Catchwords

(2007) 67 ATR 284[2020] FCAFC 181 Cook v Pasminco Ltd (No 2) (2000) 107 FCR 44[2000] FCA 1819 CSR Ltd v Eddy (2008) 70 NSWLR 725[2008] NSWCA 83 Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543[1999] HCA 66 Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] 4 VR 332

Judgment (25 paragraphs)

[1]

Overview

In these proceedings the applicant, Peter Maresh, seeks orders in relation to the inspection of documents under s 188(2) of the Strata Schemes Management Act 2015 (NSW) (SSM Act) against the respondent, The Owners - Strata Plan No 13134, which is the owners corporation responsible for the management of the strata scheme related to strata plan no 13134 (SP13134).
The respondent claims that certain documents are privileged from production on the ground of legal professional privilege.
I have decided that the respondent has established a claim to legal professional privilege in respect of some of these documents and that the remaining documents should be produced to the applicant.

[2]

The factual background

SP13134 is a residential complex at Marsfield, in which the applicant is the owner of lot 26.
In 2021 and 2022, Verdun Walsh Pty Ltd (VW) was the strata managing agent of the respondent, and Trent Logue (Mr Logue) and Raymond Rez (Mr Rez) were employees of VW.
On 21 December 2021, the applicant as the plaintiff commenced proceedings 2021/00350677 in the Small Claims Division of the Local Court of New South Wales at Hornsby against VW and the respondent as the first and second defendants (the Local Court proceedings) by filing a statement of claim in which he sought judgment for $657.00 including filing and service fees of $151.00 in respect of the following claim: "1. In 2020 the Strata Committee of the 2nd defendant requested that I audit the condition of the garden walls around the property. 2. I did this work ai presented the Committee with an Excel spreadsheet containing details of the work required, an that the cost of this work could be done for about $400 in materials. I indicated that I would not charge for my labour. 3. The Committee approved this amount, 4. Over a period of 6 months I repaired the walls as I had committed to. The work took over 100 hours of my time. 5.I presented the subsequent invoice to the First Defendant, (strata Manager) which contained amounts for other work performed at the request of the Defendant. 6 The response from the new Committee was to refuse all payment unless a series of onerous arid vexatious conditions were met. None of these conditions were presented or agreed upon prior to the work being done. 7. After some time and effort, the Defendants continued to refuse any payment, which required me to add an overdue processing fee of $60 to the amount. 8. Eventually I sought relief lodging a Statement of Claim. 9. The First Defendant subsequently part-paid the invoice against the wishes of the 2nd Defendant. Both Defendants refused to pay the balance. 10. As such It was required that I submit a new Statement of Claim. 11. I seek full payment of invoice #5679, plus costs"
As at 8 January 2022, Ms Lydia Booriakin, Mr Steven Su, Ms Robyn Kelly and Ms Florence Lo were members of the strata committee of the respondent.
On 8 January 2022, there was a meeting of the strata committee of the respondent. The minutes of this meeting include the following record: "13) Legal Action from Unit 38 owner Unit 38 owner has submitted a legal claim of $400 for "wall repairs" throughout complex. The previous committee approved material costs but unit 38 owner provided no receipts to substantiate the claim. The committee also offered to walk with him to understand the work done but he responded by adding extra charges with a cost that is higher than $400. Committee members also walked around themselves and it is not evident that some works were carried out. It should also be noted that the repairs that were carried out were not of a professional standard and we will most likely need to redo thee repairs. Due to the nature of Christmas break the committee has not been able to reach out the legal team or VW for further advice so it was resolved SS to advise VW to pay Peter $400 plus GST, as the final payment for this claim for any outstanding money."
On 19 January 2022, the applicant sent an email to Mr Logue (the 19 January 2022 Maresh email) which provides: "Yesterday your employee, Raymond Rez, published Minutes of the Strata Committee meeting. These Minutes were sent to all owners. These Minutes were fallacious, malicious and defamatory. I refer to: 1. "The committee also offered to walk with him to understand the work done..." 2. "Committee members also walked around themselves and it is not evident that some works were carried out." 3. "It should also be noted that the repairs that were carried out were not of professional standard and we will most likely need to redo these repairs." Both individually and together, these sentences give the impression of dishonesty, impropriety and deceit on my part. Having spent thousands of hours over several years giving my time to this Strata at no charge, I take exception to increasingly antagonistic language being used against me by this current Committee. I give notice that I will be commencing defamation proceedings against Verdun Walsh, and personally against Raymond Rez, and Lydia Booriakin, Steven Su, Robyn Kelly and Florence Lo, who were present at the meeting. Evidence will be presented to show the extreme level of harassment, vitriol, malice and malfeasance toward myself by those mentioned over a considerable period of time. All costs and damages will be claimed against those mentioned. You will note that your Insurance does not cover matters of deliberate misbehaviour, nor are Committee members indemnified against same. You may avoid this scenario by sending the attached apology to all owners within 7 days of this email. You will provide me with evidence that said apology has been sent to all owners. You will also issue revised Minutes restricting this matter to the facts; e.g. "The previous Committee approved repairs to a number of walls around the Strata complex. These works were completed and the invoice paid." Legal action will commence without further notice if not resolved within 7 days. APOLOGY The Strata Committee of [address omitted], (SP13134): Steven Su Lydia Booriakin Robyn Kelly Florence Lo caused Minutes to be written and published on 18 January 2022. These Minutes contained malicious, false and defamatory statements about Peter lvlaresch, the owner of TH38. None of the statements or references to Mr Maresch in the Minutes has any basis in truth. The Committee unreservedly apologises to Mr Maresch for these statements, and acknowledges his tireless work for this community over a number of years. The Committee resolves to cease all malice and vitriol against Mr Maresch and any other owner(s). Raymond Rez, of Verdun Walsh Pty Ltd, also apologises unreservedly for publishing said Minutes."
On 19 January 2022, Mr Rez sent the following email correspondence: 1. an email to Daniel Radman of Grace Lawyers (GL) seeking a costs estimate to respond to the 19 January 2022 Maresh email and the applicant's proposed actions; 2. an email to Chris McArdle of McArdle Legal (ML) seeking a costs estimate to respond to the 19 January 2022 Maresh email and the applicant's proposed actions.
On 15 March 2022, the applicant's lawyers, Williams Woolf & Zuur (WWZ), sent a letter to the members of the strata committee of the respondent (the 15 March 2022 WWZ letter) which provides: "I act for Mr Peter Maresch, who is the proprietor of Unit 38. Mr Maresch has instructed me in regard to the Minutes of a Strata Committee Meeting which was held on 8 January 2022 and also an Extraordinary General Meeting that was held on 9 March 2021, the Minutes of which were distributed to all owners on 30 March 2021. I have reviewed the record of both the Minutes of the Strata Committee Meeting held on 8 January 2022 and a note addressed to all owners regarding an upcoming Extraordinary General Meeting in regard to 3 motions. A review of the January Minutes as well as the note sent to all owners in relation to the proposed Extraordinary General Meeting are clearly defamatory in regard to my client, suggesting his dishonesty, aggression, threatening behaviour and general bullying and intimidation in regard to Ms Lydia Booriakin, Mr Steven Su and Ms Robyn Kelly. I note that my client previously forwarded to the Strata Manager a draft form of apology, to which there has been no response from neither the Strata Manager nor Mr Su and Mesdames Booriakin, Kelly and Lo. Given the nature of the defamatory comment which has been placed on the public record, i.e., this is a record that can be viewed by current and future members of the Owners Corporation, then clearly my client has an active cause of action against the nominated members of the Owners Corporation plus of course, Mr Raymond Rez, of Verdun Walsh, who was the publisher of the offending Minutes of the Strata Committee Meeting. I draw the attention of all of you to Section 7 of the Defamation Act 2005 which provides that (inter alia), the publication of defamatory matter of any kind is actionable without proof of special damage. I also note that Section 8 of the said Act provides that a person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter. Based on the foregoing, I note that it is clear that my client has a lively right under the Act to pursue the nominated Committee members for the defamatory recorded comments and Mr Rez as the person for responsible for production and eventual dissemination of the Minutes to all members of the Owners Corporation including future members of the Owners Corporation. It is open to those persons addressed above to make an offer to make amends and I refer you in particular to Section 13 of the Act or in the alternative, to provide an apology and such apology should then be transmitted to all recipients of the Minutes. Additionally, my client requires payment of my costs, which I assess to date at $1,266.65 inclusive of GST. Unless I receive a response from yourselves as Committee Members, then my client reserves his right to take Court action to recover damages and also costs."
On 7 April 2022 at 5.24pm, the applicant sent an email to Mr Logue (the 7 April 2022 at 5.24pm Maresh email) which alleged negligence by the strata committee of the respondent in respect of various issues (the 7 April 2022 at 5.24pm Maresh email).
On 7 April 2022 at 5.31pm, the applicant sent an email to Mr Logue (the 7 April 2022 at 5.31pm Maresh email) which provides: "The amount of $34.10 has been deposited into the Verdun Walsh account. I require the following documents: 1. All quotes for work on this strata received since the last AGM. 2. All Work Orders issued since the last AGM 3. All invoices paid since the last AGM 4. All correspondence between any and all members of the Strata Committee and Verdun Walsh since the last AGM 5. The up to date Strata Roll. 6. I require a full and documented explanation of events as outlined in my email to you earIier today. I expect these documents to be sent to me via email within 7 days of this email."
On 8 April 2022, Rula Grant (Ms Grant) of the applicant's lawyers, Williams Woolf & Zuur (WWZ) sent an email to Sean Turner (Mr Turner) of GL (the 8 April 2022 WWZ email) attaching the letter dated 8 April 2022 of WWZ to GL in which they inquired as to whether GL had received instructions (the 8 April 2022 WWZ letter).
On 13 April 2022, Mr Turner sent an email to Ms Grant (the 13 April 2022 GL email) attaching the letter dated 13 April 2022 of WWZ to Grace Lawyers (the 13 April 2022 GL letter).

[3]

The history of the proceedings and related Appeal Panel proceedings

On 20 May 2022, the applicant commenced proceedings SC 22/22990 in the Consumer and Commercial Division of the Tribunal against the respondent by filing a strata and community schemes application in which he claimed the following order: "Provision of documents as per S182 of the Strata Schemes Management Act"
On 15 June 2022, the Tribunal made the following order (the 15 June 2022 order): "1. By consent, the respondent is to provide the applicant with the documents sought in his email dated 7 April 2022, as set out below, within 7 days: (i) all quotes for work on this strata plan since the last Annual General Meeting (AGM), (ii) all work orders issued for this strata plan since the last AGM, (iii) all invoices paid since the last AGM, (iv) all correspondence between any member of the strata committe and the strata managing agent since the last AGM, and (v) an up-to-date copy of the strata roll."
On 24 August 2022, the respondent as the appellant commenced proceedings 2022/00251785 against the applicant as the respondent by filing a notice of appeal in which it appealed against the 15 June 2022 order.
On 14 November 2022, the Appeal Panel made the following orders: "1 Time is extended pursuant to s.41 of the NCAT to 24 August 2022 for the appellant to bring this appeal. 2 The appeal is allowed. 3 The order made on 15 June 2022 in SC 22/22990 is varied to read as follows: The respondent is to provide the applicant with the documents sought in his email dated 7 April 2022, as set out below, within 7 days: (i) all quotes for work on this strata plan since the Annual General Meeting (AGM), (ii) all work orders issued for this strata plan since the last AGM, (iii) all invoices paid since the last AGM, (iv) all correspondence between any member of the strata committee and the strata managing agent since the last AGM, and (v) an up-to-date copy of the strata roll other than any of the 96 listed documents in the Appellant's List of Confidential (privileged) Documents emailed to Mr Maresch at 1:13pm on 7 Oct 2022. 4 The hearing of the question of privilege about the 96 listed documents is remitted to the CCD of the Tribunal for hearing. Directions will be made by the CCD before it is listed for final hearing. The OC cannot add any further documents to its list of 96 to which it says privilege attaches, but may reduce the list. Directions by the CCD will include an order that the OC provide an updated list with page references and a bundle of privileged documents that is paginated."
On 15 November 2022, proceedings SC 22/22990 were remitted to the Consumer and Commercial Division of the Tribunal and were renumbered as proceedings SC 22/52706.
On 13 January 2023, the Tribunal made procedural directions including the following orders: "4. On or before 30 January 2023 the respondent is to file with the Tribunal all evidence and submissions in support of its claim for privilege, separating and suitably marking: a) Those documents for which a claim for confidence or privilege is made; b) Those documents that are not confidential. 5. The documents in 4 (b), including any submissions, are to be served on the applicant a well as being provided to the Tribunal. 6. On or before 13 February 2023 the applicant is to file and serve any evidence and submissions in reply."
On 30 January 2023, the respondent filed a bundle of documents comprising submissions (the respondent's submissions) and a list of 96 documents which it claims are privileged from production (the respondent's list) together with the listed documents numbered as pages 1 to 668 (the subject documents). Most of the subject documents are email chains.
On 15 February 2023, the applicant filed submissions in reply (the applicant's submissions).

[8]

Evidence Act

Chapter 3 Part 3.10 Division 1 (s117-126) contains provisions dealing with client legal privilege. Section 117 contains definitions and relevantly provides: 117 Definitions (1) In this Division - client includes the following - (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), (b) an employee or agent of a client, … confidential communication means a communication made in such circumstances that, when it was made - (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. confidential document means a document prepared in such circumstances that, when it was prepared - (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. lawyer means an Australian lawyer, a foreign lawyer, or an employee or agent of either of them. party includes the following - (a) an employee or agent of a party, …
Section 118 deals with legal advice and provides: 118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of - (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
Section 119 deals with litigation and provides: 119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of - (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
Chapter 3 Part 3.10 Division 4 (s131A-134) contains general provisions. Section 131A deals with the application of Part 3.10 to preliminary proceedings of courts and relevantly provides: 131A Application of Part to preliminary proceedings of courts (1) If - (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. (2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document …
The Dictionary relevantly provides: … court means NSW court. … NSW court means - (a) the Supreme Court, or (b) any other court created by Parliament, and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence. …

[11]

Legal professional privilege under the common law

In Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 (Mann) the appellant applied for pre-trial discovery of documents which were confidential communications between legal advisors and the respondent Chief Minister of the Australian Capital Territory. The appellant argued that legal professional privilege was lost by disclosure of the communications by the Chief Minister to an independent member of the Legislative Assembly of the Territory. The disclosure was confidential and for the purpose of demonstrating that the settlement of litigation with the appellant did not involve a waste of public funds, but was in accordance with legal advice. The High Court found that the applicable law was not to be found derivatively in ss 118 and 122 of the Evidence Act 1995 (Cth). Whether the privilege was lost was to be determined according to common law principles. Gleeson CJ, Gaudron, Gummow and Callinan JJ at [19]-[20] relevantly said: "[19] The circumstances in which legal professional privilege may apply are not limited to the adducing of evidence in the course of a hearing in a court. The privilege may be invoked, and its application may be of importance, in pre-trial proceedings such as the discovery and inspection of documents. Documents may be discoverable even though they may not be admissible in evidence. … [20] Thus, the ambit of the common law doctrine of legal professional privilege exceeds that of ss 118 and 122 of the Evidence Act."
In Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 (Daniels Corporation), the Australian Competition and Consumer Commission (the ACCC), the respondent, served notices on Meerkin & Apel (the solicitors), the second named appellants, requiring the production of documents held by them as a result of their having acted as solicitors for the first named appellant, The Daniels Corporation International Pty Ltd (the Corporation). The notices were served pursuant to s 155 of the Trade Practices Act 1974 (Cth) (TP Act). The solicitors produced some but not all of the documents specified in the notices. They and the Corporation claimed that the remaining documents were the subject of legal professional privilege and that s 155 of the TP Act did not authorise the ACCC to require production of documents to which that privilege attaches. The High Court found that s 155 of the TP Act does not require the production of documents to which legal professional privilege attaches. Gleeson CJ, Gaudron, Gummow and Hayne JJ at [9]-[11] relevantly said: "[9] It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. It may here be noted that the "dominant purpose" test for legal professional privilege was recently adopted by this Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 73 [61] per Gleeson CJ, Gaudron and Gummow JJ in place of the "sole purpose" test which had been applied following the decision in Grant v Downs (1976) 135 CLR 674. [10] Being a rule of substantive law and not merely a rule of evidence, legal professional privilege is not confined to the processes of discovery and inspection and the giving of evidence in judicial proceedings. Rather and in the absence of provision to the contrary, legal professional privilege may be availed of to resist the giving of information or the production of documents in accordance with investigatory procedures of the kind for which s 155 of the Act provides. Thus, for example, it was held in Baker v Campbell, that documents to which legal professional privilege attaches could not be seized pursuant to a search warrant issued under s 10 of the Crimes Act 1914 (Cth). [11] Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect. …" (footnotes omitted)

[14]

Email chains

In Kenquist Nominees Pty Limited v Campbell (No 5) [2018] FCA 853 (Kenquist Nominees (No 5)) at [19], Thawley J stated the following principles with respect to a claim for privilege with respect to an email chain: "[19] A number of the sample documents comprise a print out of an email chain. Where the relevant document comprises an email chain, I refer to the most recent in time email as the "lead email". It is the lead email which has been discovered, and which comprises the principal communication. The dominant purpose of making that lead communication is important to the analysis of the treatment of other emails in the chain. Often, the lead email forwards, or replies to, an email chain. Whilst the analysis turns each time on the particular document (a print out of the communication being the lead email and any chain), it is perhaps useful to make the following observations (disregarding for present purposes any question of waiver of privilege): (1) If the communication being the lead email was not made for the dominant purpose of obtaining or giving legal advice, then it may nevertheless be appropriate to redact parts of the lead email or subsequent emails in the chain, or attachments to the lead email, if the content or nature of a privileged communication might be inferred from the document if it were left unredacted - see: paragraph [13] above. (2) If the dominant purpose of the communication being the lead email was the giving of legal advice by a retained lawyer, then it may be that the email chain will be privileged because the subsequent emails in the chain are to be regarded, in effect, as copies of documents furnished by the lawyer with the advice being the lead email. The lead email is a communication of legal advice, with the subsequent emails in the chain being components of that communication (in effect, copies of documents) provided by the lawyer for the dominant purpose of providing the legal advice (and perhaps also constituting copies of communications to the lawyer for the purpose of obtaining the advice). If the dominant purpose of the lawyer notionally making the copy of the email chain beneath the lead email was to provide the email chain to the client as part of the communication of legal advice, that email chain is privileged. (3) If the dominant purpose of the communication being the lead email was the obtaining of legal advice from a retained lawyer, then the email chain may also be privileged because that email chain is, in effect, a copy of communications provided to the lawyer for the dominant purpose of obtaining legal advice. The forwarding of a chain of emails might constitute or be treated as "material prepared for submission to the legal adviser" or "components" of the privileged communication being the lead email: Propend at 571. So far as concerns the email chain forwarded with the lead email, the inquiry centres on the dominant purpose of the client in making what is, in effect, a copy of the email chain. It is at the point in time when the email chain is notionally copied (when it is notionally copied by forwarding or replying) that the question of dominant purpose must be analysed - see: paragraph [12] above. At that time, the whole chain is generally notionally copied (by forwarding or replying) as a component of the lead email, even though it may be that only particular emails in the chain were regarded as relevant or significant to the obtaining of advice. The dominant purpose of making the copy of the chain is often, if not generally, to put particular emails in the chain for submission to the lawyer. I did not exclude the possibility that it is appropriate in a particular case to treat the forwarding of an email chain as an act of copying each email in the chain individually, rather than a single act of copying the chain, such that one would need to analyse the dominant purpose of each act of copying. However, the circumstances were not such in the present case for such an approach to be taken.
In G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 8) [2022] NSWSC 1170 (G&S Engineering Services) at [9]-[13], Stevenson J stated the following principles with respect to a claim for privilege with respect to an email chain: "[9] Client legal privilege attaches to "communications" and an email chain, containing multiple emails, constitutes one communication made to the ultimate recipient of the email chain. [10] As Robb J observed in Desane Properties Pty Limited v State of New South Wales: "Where documents are electronically 'copied' in a chain of emails … it is necessary to consider the circumstances in which the emails were produced and the final chain sent to its addressee." [11] Robb J continued that: "… in a particular case, an examination of the final email in the chain in the context of the chain, as a whole, may justify treating the whole chain as if the individual emails had intentionally been copied for a protected purpose." [12] Further, as was observed by Moshinsky J in Commissioner of Taxation v PricewaterhouseCoopers: "… it may be that the latest email in the chain is not privileged, but the penultimate email (in time) may be a communication made for the dominant purpose of the giving or receiving of legal advice, and the earlier emails are to be regarded as copy documents which have been provided for the same dominant purpose." [13] Thus, in relation to email chains which include communications created for the dominant purpose of giving or seeking legal advice but which contain later emails, the question is whether the later emails bespeak conduct inconsistent with the maintenance of privilege, such as to amount to a waiver of the privilege." (footnotes omitted)

[16]

The extent of legal professional privilege

Privilege extends to documents from which the nature and content of a legally privileged communication might be inferred. Examples include communications between various legal advisers of the client, draft pleadings, draft correspondence with the client, documents with a lawyer's handwritten annotations and bills of costs. Privilege extends to internal documents or parts of documents of the client, or of the lawyer, reproducing or otherwise revealing communications which would be covered by privilege. Privilege extends to a copy of a non-privileged document where the dominant purpose for bringing the copy into existence was to obtain legal advice. Although this principle applies to documents, it should be recognised that the privilege protects communications of which the copy documents might form a component or from which the nature and content of a privileged communication might be inferred. If a client makes a copy of a non-privileged communication or document and sends it to a lawyer without a dominant purpose of obtaining legal advice (or for confidential use in litigation), the copy would not be privileged. This principle also applies to a document copied by a lawyer for the dominant purpose of giving legal advice: Kenquist Nominees (No 5) at [13]-[14] (Thawley J).
In Cook v Pasminco Ltd (No 2) (2000) 107 FCR 44; [2000] FCA 1819 (Cook (No 2)) at [47], Lindgren J made the following observations with respect to a claim for privilege with respect to a costs agreement between a solicitor and client: "[47] In my opinion, generally, an agreement between solicitors and their prospective client as to the terms of retainer of the solicitors does not attract either kind of legal professional privilege mentioned: the agreement is not created for the dominant purpose of the giving or receiving of legal advice or of being used in existing or anticipated legal proceedings. A costs agreement is a bundle of mutual and reciprocal commitments between intending solicitor and client. It is entered into by parties whose interests are, at the time, generally opposed. Generally speaking, the solicitors are entitled to negotiate the terms of the agreement in their own interests. Once it is appreciated that a costs agreement is an agreement between persons who are about to enter into the relationship of solicitor and client, there is no obvious reason why such an agreement, as a class of document, should be the subject of legal professional privilege."
The principle in Cook (No 2) at [47] has been followed by the New South Wales Supreme Court: CSR Ltd v Eddy (2008) 70 NSWLR 725; [2008] NSWCA 83 at [62] (Basten JA with Hodgson JA at [7] and McColl JA at [10] agreeing); Lahoud v Lahoud [2011] NSWSC 994 at [180] (Campbell JA).

[17]

Evidence in support of a claim for legal professional privilege

The onus of establishing that privilege applies such that disclosure may be resisted is on the person asserting the privilege: Kenquist Nominees (No 5) at [18] (Thawley J).
In Buzzle Operations v Apple Computer Australia [2009] NSWSC 225 (Buzzle) at [21]-[25], White J made the following observations: "[21] No evidence was adduced as to the purpose of the deponents of affidavits or the makers of the witness statements in providing their affidavits and statements. The evidence of the plaintiffs' solicitor quoted in para [9] above is that it was her purpose that the affidavits should be prepared to consider whether they should be deployed and used in the Federal Court proceedings, and if so, for them to be served pursuant to the Federal Court orders. She could not give evidence of the deponent's purpose, nor of the purpose of the first plaintiff's liquidator. Moreover, whilst her purpose is relevant, the question of what is the dominant purpose for the preparation of the affidavits and witness statements is to be determined objectively (Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia per Callinan J at 107 [172]; Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [6]). [22] I do not consider that the plaintiffs' solicitor's own description of her purposes as being "dominant" carries any weight, particularly as she did not address any other purpose that she or her client had in the preparation of the documents. At least a purpose of the final affidavits and witness statements must have been to tell the Court and the respondents of the facts which the applicant in those proceedings sought to establish. It is hard to conceive how that could not have been the dominant purpose of the final affidavits and witness statements. The onus of establishing that the dominant purpose of preparation of the documents was for the first plaintiff to be provided with professional legal services fell on the plaintiffs. In my view that onus has not been discharged. I reach that conclusion notwithstanding that the plaintiffs' solicitor was not required for cross-examination. In my view, the formulaic nature of her evidence, her failure to address with particularity each of the affidavits and statements for which privilege is claimed, and her failure to address other purposes the documents were intended to serve means that her assertion as to her dominant purpose carries no weight. In any event, the solicitor's purpose is not the only relevant subjective purpose to be considered. [23] Mr Gyles SC for the plaintiffs submitted that the documents were privileged because the prior communications between the deponents and the plaintiffs' solicitors would clearly be confidential and made for the dominant purpose of the plaintiffs being provided with professional legal services, namely, the preparation of the affidavits, and those communications would be reproduced in the affidavits. Hence, he submitted that the affidavits were privileged, and in this respect referred to the judgment of King CJ in State Bank of South Australia v Smoothdale No. 2 Ltd at 226. There his Honour said: "The argument sought to be advanced by the appellant is that the statements of which production is sought, as distinct from the original statements taken from the witnesses, were prepared and signed for the purpose of compliance with the order, and were not documents brought into existence for submission to legal representatives for the sole purpose of use in legal proceedings; Grant v Downs (1976) 135 CLR 674, Baker v Campbell (1983) 153 CLR 52 per Brennan J at 108. I think that the argument is fallacious. The documents in question are in substance merely a reproduction of statements already obtained from witnesses for the sole purpose of use in the proceedings, in a form suitable for compliance with the order. They do not lose their character as statements of witnesses because they are prepared with a view to compliance with the order." [24] There are two difficulties with this submission. The first is that the evidence does not address the extent to which the signed affidavits and witness statements reflect prior communications of the deponents with the plaintiffs' solicitors. [25] The second is that demonstrated by the Full Court of the Federal Court in ACCC v Cadbury Schweppes Pty Ltd at [73]. Their Honours said: "...we do not consider it correct to conclude that the final witness statements were being prepared and signed for the purpose of compliance with a court order or that the documents were merely reproductions of statements already obtained by witnesses for the sole (now dominant) purpose of use in the proceedings so that they were privileged. This fails to appreciate a number of matters. Drafts and final proofs are by nature and in fact different documents. A draft may well include information which is not included in a final version of a witness statement given to an opposing party. A draft may well be a 'discussion' document, intended only to be seen and considered by the party's legal advisor. It should not be assumed that the final version is just a reproduction of anything that comes before it. Even if it be so, once the decision has been made to call a particular witness to give evidence and that the evidence will comprise that which is in the witness statement, that final witness statement assumes a different character. The final version of a proof of evidence is the document prepared for disclosure to the court and to the opponent. The 'essential character' of a final proof of evidence is to make disclosure to the opponent and the court of the evidence which is proposed to be led at trial. Such finalised witness statements may be prepared in the finalised form because of the court order for disclosure of evidence before the hearing. However, the fact remains that the purpose of the party preparing and delivering a final version of a witness statement is to give advance notice of what evidence that party proposes to put before the court. It does not matter whether the finalised version was or was not intended to be tendered in court - the purpose of bringing into existence the finalised proof of evidence was to give it to the opposing party at the time of service and to disclose the information contained in the proof."
In Barnes v Commissioner of Taxation [2007] FCAFC 88; (2007) 67 ATR 284(2007) 242 ALR 601 (Barnes) at [18], the Full Court of the Federal Court of Australia (Tamberlin, Stone and Siopis JJ) said: "[18] The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallace (2004) 142 FCR 185 at 189, Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (1991) 29 FCR 203 at 211 (per Lockhart J); Grant v Downs (1976) 135 CLR 674 at 689 (per Stephen, Mason and Murphy JJ). Where possible the Court should be assisted by evidence of the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document. The fact that generalised evidence is not challenged in cross-examination does not mean that such evidence must be accepted, particularly when it is as manifestly inadequate as it is in this case. As in Kennedy v Wallace, mere general assertions of the purpose of creation of the documents are insufficient to discharge this onus. Even though in that case some evidence as to the purpose of particular records was adduced, Allsop J at 216 considered that the onus had not been discharged because the evidence did not permit a conclusion to be drawn as to the dominant purpose of the creation of any particular document or entry in a document. Simply to show that one purpose for creation of the document was to obtain legal advice or assistance is not good enough."
Buzzle at [21]-[25] and Barnes at [18] have been cited with approval and applied in the Tribunal: The Owners - Strata Plan No 16857 v Hyman [2022] NSWCATAP 358 at [22], [29]-[30].
Courts may examine the documents the subject of the privilege dispute in order to determine whether the nature and content of the documents support the privilege claim by throwing light on the purpose for which they were brought into existence: Kenquist Nominees (No 5) at [17] (Thawley J).

[23]

Whether any documents are privileged

As a consequence of the unsatisfactory evidence of the respondent, I have decided to inspect the subject documents. Upon examination I have ascertained that the respondent's list is incomplete as documents commencing on the following page numbers have been omitted: 98, 100, 110, 120, 156, 190, 202, 241, 339, 367, 368, 369, 370, 380, 406.
I have amended the respondent's list to include these documents: 16A (pages 98 and 99); 16B (pages 100 to 109); 16C (pages 110 to 119); 16D (pages 120 to 123); 25A (pages 156 to 158); 31A (pages 190 to 201); 31B (pages 202 to 218); 33A (pages 241 to 251); 39A (pages 339 to 341); 41A (page 367); 41B (page 368); 41C (page 369); 41D (pages 370 to 379); 41E (pages 380 to 391); 44A (pages 406 to 411).
I have not separately dealt with the following documents: 1. documents 29 and 30 as they are part of the email chain which is document 28; 2. document 42 as it is part of the email chain which is document 43; 3. document 48 as it is part of the email chain which is document 44A; 4. document 53 as it is part of the email chain which is document 43; 5. document 81 as it is part of the email chain which is document 91; 6. document 84 as it repeats document 79; 7. document 86 as it is part of the email chain which is document 82; 8. documents 87 and 88 as they are part of the email chain which is document 91; 9. document 92 as it repeats document 82;
Having regard to the principles in Mitsubishi Electric at [8], [13], [20], I am satisfied of the following matters: 1. from 21 December 2021 the applicant was prosecuting the Local Court proceedings against the respondent; 2. from 19 January 2022 email litigation by the applicant against VW, Mr Rez and the members of the strata committee of the respondent was reasonably anticipated by reason of the contents of the 19 January 2022 email.
After examination of the subject documents having regard to the principles in Kenquist Nominees (No 5)) at [11]-[14], [17]-[19], G&S Engineering Services at [9]-[13] and Cook (No 2) at [47], I am satisfied that the following documents are not privileged from production to the applicant: 1. documents 1 to 5 as they relate to a proposed costs agreement with GL (pages 1 to 13); 2. document 6 other than the lead email (part of page 14 and pages 15 to 20) as it relates to a proposed costs agreement with ML; 3. document 8 so far as the emails between 28 January 2022 and 8 February 2022 as it relates to a proposed costs agreement with GL (part of page 26 and pages 27 to 29); 4. documents 16A to 18 as they relate to a proposed costs agreement with GL (pages 98 to 130); 5. document 24 as it relates to a proposed costs agreement with GL (pages 146 and 147); 6. documents 25A to 27 as they relate to a proposed costs agreement with ML (pages 156 to 164); 7. document 28 so far as the 13 April 2022 GL email and the 13 April 2022 GL letter as they are not confidential communications (pages 183 to 190); 8. documents 41A to 41C which are the 7 April 2022 at 5.31pm Maresh email, the 7 April 2022 at 5.24pm Maresh email and the 8 April 2022 WWZ letter as they are not confidential communications (pages 367 to 369); 9. document 77 as it is not a confidential communication (pages 557 to 559).
After examination of the subject documents having regard to the principles in Kenquist Nominees (No 5)) at [11]-[14], [17]-[19] and G&S Engineering Services at [9]-[13], I am satisfied that the following documents are privileged from production to the applicant on the ground of litigation privilege as explained in Mitsubishi Electric at [8], [13], [20]: 1. document 6 so far as the lead email (part of page 14); 2. documents 7 to 16 (pages 21 to 97 and 624 to 635); 3. documents 19 to 21 (pages 131 to 145); 4. document 25 (pages 148 to 157); 5. document 28 excluding the 8 April 2022 GL email and the 13 April 2022 GL letter (pages 165 to 182); 6. documents 31A to 41 (pages 190 to 366); 7. documents 41D and 41E, 43 to 44A, 46, 49 to 52, 54 to 76 (pages 370 to 556); 8. documents 78 to 80, 82 and 83, 85, 89 to 91, and 93 to 96 (pages 560 to 668).

Maresh v The Owners - Strata Plan No 13134

At a glance

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Judgment (25 paragraphs)

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Legislation Cited (7)

Cases Cited (26)