Plaintiff/Defendant by Counterclaim v Defendants/Plaintiffs by Counterclaim

For the Plaintiff/Defendant by Counterclaim and the First and Second Third Parties

1 Cargill Australia Ltd, the plaintiff, and related entities who are third parties (Cargill), has asserted that certain documents produced by a non-party in answer to a subpoena, and others which are listed in Cargill's own discovery, are immune from production because of legal professional privilege and should not be produced to Viterra Malt Pty Ltd and other defendants (Viterra). Viterra insists that the documents should be produced to it.

2 The first group of documents were produced to the Court by Goldman Sachs (which is not a party to the proceeding) in answer to a subpoena served by Viterra (Goldman Sachs Documents). The second group are listed in a summons dated 12 February 2018 filed on behalf of Viterra and are documents listed in Cargill's discovery (the Discovered Documents).

3 Initially there was a substantial number of documents in dispute. After further discussions between the parties, there remain only 28 Goldman Sachs Documents and 25 Discovered Documents in dispute, a total of 53 documents. Each group of documents was the subject of a separate hearing argued on different days.[1] Each application was supported by separate affidavits and written submissions, but the parties agreed that the affidavits in each application, to the extent they are relevant, may be admissible and used for the purposes of the other. For convenience I will explain my ruling in respect of both groups of documents in this one set of reasons.

4 Cargill purchased a business, Joe White Maltings (JWM), from Viterra in 2013. It is that sale that is the subject of this proceeding. In this proceeding, Cargill claims damages from Viterra for alleged misleading and deceptive conduct and breaches of agreement in connection with the sale and purchase of JWM. An Acquisition Agreement was executed on 4 August 2013 and completion of that agreement took place on 31 October 2013. Before the Acquisition Agreement was made Viterra had issued an Information Memorandum about JWM in about May 2013. Events relevant to the proceeding mostly took place between May and the end of October 2013.[2]

5 For its part, Cargill was assisted in the purchase by internal lawyers and also external lawyers, Allens Linklaters (Allens). It was also assisted by financial advisers, Goldman Sachs, and by various other consultants, including environmental consultants.

6 Because many of the factual issues in these applications revolve around whether communications internal to Cargill or between Cargill and its advisers were made for the dominant purpose of seeking or providing legal advice, it is helpful to understand the structure of Cargill's acquisition team and the personnel within its various working groups.

7 Within Cargill the acquisition of JWM was given a project name, 'Project Hawk'. Admitted in evidence was a chart setting out the personnel within the various workstreams for Project Hawk.[3] That chart lists the personnel in the 'Core Deal Team' under which there were five key Cargill 'workstreams', namely: Commercial & Operations; Accounting, Financial & IT; Structuring, Financing & Tax; Valuation & Synergies; and Legal & Regulatory.

8 The two workstreams of importance for the purposes of these applications are the Structuring, Financing & Tax and the Legal & Regulatory workstreams. These were said to include legally qualified employees of Cargill whose task was to provide legal advice for the acquisition.

9 The discovery process in this litigation has been vast: Cargill alone discovered 33,000 documents. Cargill claimed privilege over 1857 documents it discovered.[4] The judge managing the proceeding, Elliott J, made directions in late 2016 to establish a process whereby a significant sample of the documents that were the subject of privilege disputes would be reviewed by an independent barrister whose opinion would then guide the parties in attempting to resolve their disputes over the whole class. Some 360 documents were referred to that barrister and her review was undertaken between December 2016 and April 2017. That process very substantially reduced the number of documents in dispute.

10 In addition, various non-parties, including Goldman Sachs, have produced documents on subpoena over some of which claims for privilege were made.[5]

11 The parties have continued to work at resolving disputes over privilege through a variety of means (including the provision of redacted copies of documents and each party agreeing not to 'press'[6] their position in relation to certain documents or classes of documents). Many disputes have been resolved. Accordingly, the 53 documents the subject of these two applications represent a small proportion of the whole and are those that the parties are unable to agree upon.

12 For the hearing in respect of the Goldman Sachs Documents, Cargill filed two affidavits in support of its privilege claims: one sworn by Janet Mary Vivienne Whiting on 29 January 2018 and the other by Christiana Maree McCudden on 8 February 2018, both of whom are lawyers with the law firm Cargill engaged for this litigation, Gilbert + Tobin. Viterra filed no affidavit. Cargill and Viterra both filed written submissions dated 8 February 2018.

13 For the hearing in respect of the Discovered Documents, Cargill filed an affidavit of Ms Whiting sworn 6 February 2018 and two affidavits of Ms McCudden sworn 19 February and 5 March 2018 respectively. Viterra filed four affidavits in opposition, each of Sarah Jane Weinberg and sworn 1 February, 7 February, 23 February and 5 March 2018. Ms Weinberg is a solicitor employed by Viterra's litigation solicitors, King & Wood Mallesons. Again, Cargill and Viterra both filed written submissions, each dated 6 March 2018.

14 In addition to their affidavits, in both applications each party produced schedules to their submissions to facilitate the navigation of the evidence and arguments relevant to each different document. In relation to the Goldman Sachs Documents, some or much of the information contained in the schedules was derived from the descriptions supplied by Goldman Sachs. In relation to the Discovered Documents, some of the information in the schedules (Doc ID, Date, Type, From and To) was electronically extracted from the digital files constituting the documents themselves. Although I have used the schedules, I have been cautious about reliance on some of the information, especially the authorship (ie 'From') information. That caution is especially pertinent in relation to spreadsheet documents which may have been originally created by one person but ultimately become the product of the contributions of many.

15 The issues raised by the contest over both groups of documents may be divided into two broad categories, namely:

(a) questions of principle that govern or affect whether a particular document or group of documents is protected by legal professional privilege; and

(b) questions of proof in relation to individual documents (ie, whether the evidence advanced by Cargill was sufficient to establish that a particular document is privileged).

16 Two related questions of principle arose. They were:

(a) whether the Propend principle[7] applies, that principle being that a copy of a non-privileged document will attract legal professional privilege where the dominant purpose for bringing the copy into existence is to seek or provide legal advice, or whether its operation is excluded by reference to a qualification propounded by Brennan CJ in that case; and

(b) whether, in circumstances where Viterra has not contested privilege in respect of a host email, Cargill must nevertheless establish the requisite dominant purpose for that email in order to gain the benefit of the Propend principle for any 'copies' of documents attached to those emails?

17 I will address those two questions later in these reasons.

18 There was no disagreement over the general principles to be applied in determining whether legal professional privilege fixes to a particular communication. Cargill conveniently summarised most of the applicable principles, chiefly by reference to those collected in the judgment of Young J in AWB v Cole.[8] I am content to reproduce the relevant parts of Cargill's submission (including footnote references) as a useful summary of the general principles:

Legal professional privilege protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services.[9] The party claiming privilege bears the onus of establishing that the communication was undertaken, or the document brought into existence, for the dominant purpose of giving or obtaining legal advice.[10] The onus may be discharged by (inter alia) evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by reference to the nature of the documents supported by argument or submissions.[11]

The purpose for which a document is brought into existence is a question of fact that must be determined objectively.[12] A dominant purpose is one that predominates over other purposes; it is the prevailing or paramount purpose.[13] 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.[14] Where communications take place between a client and his or her independent legal advisers, or between a client's in-house lawyers and those legal advisers, it is appropriate to assume that legitimate legal advice was being sought, absent any contrary indications.[15]

Legal professional privilege will attach to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client.[16]

A communication made by a third party adviser to a client's lawyer, and a communication made by a third party adviser to a client, will in each case be privileged if made for the requisite dominant purpose of the client obtaining legal advice from the lawyer.[17] Where a communication includes a third party, the question is whether the inclusion of the third party means that the communication or document is no longer confidential; if the third party was under an express or implied obligation not to disclose its contents, the document remains privileged.[18]

Where a lawyer has been retained for the purposes of providing legal advice in relation to a particular transaction or series of transactions, communications between the lawyer and the client relating to the transaction will be privileged, notwithstanding that they do not contain advice on matters of law; it is enough that they are directly related to the performance by the lawyer of his or her professional duty as legal adviser to the client.[19]

The principle of legal professional privilege extends to any document prepared by a lawyer or client from which one might infer the nature of the advice sought or given, and 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.[20]

19 For its part, Viterra emphasised particular statements made in other cases concerning matters affecting proof of the privilege. In particular, Viterra drew attention to the situation where a document is made for two purposes of equal weight: in such a case it has been said that neither purpose is dominant and if the decision to create the document would have been made irrespective of any intention to obtain legal advice, the legal purpose cannot be the dominant purpose.[21] Viterra also drew attention to the approach taken in recent cases where privilege was claimed over documents created during due diligence processes: Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4)[22] (Beach J) and Tabcorp Holdings Ltd v State of Victoria[23] (Sifris J). Viterra emphasised the following statements made in those cases:

(a) The party claiming the privilege bears the onus of establishing its claims to legal professional privilege, and in particular

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.[24]

(b) The evidence advanced to support a claim for client legal privilege

must at least establish the purpose for which the document was made, identify the maker and the party for which the document was prepared ...[25]

is to be objectively ascertained. Evidence of the subjective intention of the author or person requesting the creation of the communication (document) is significant but not conclusive. Purpose can also be determined from the content of the document understood in its full context.[26]

(d) Care needs to be taken with analysing the precise purpose of each communication, as:

legal and non-legal advice might be sought on the same topic so that the topic in all its dimensions is fully analysed by and for the client however 'the various advices given by the non-legal advisers "will rarely be capable of attracting privilege for the reason that they will almost invariably have the character of discrete advices to the principal as such, with each advice, along with the lawyer's advice, having a discrete function and purpose in the principal's decision making.[27]

(e) Even where all such advice is interrelated in that the legal and non-legal advices provide a collective basis for an informed decision by the client,

this does not deny the force of the previous point that non-legal advices will rarely attract privilege.[28]

[I]f non-legal advices are provided to a client who then chooses to provide them to its lawyers, that does not clothe the original non-legal advices with privilege. They ordinarily will have been prepared for a non-legal purpose. ... even if a client, in procuring a non-legal advice from a third party adviser has it in mind at the time that it requests that advice that it will also submit the non-legal advice to its lawyer, that may just demonstrate a multiplicity of purposes for the creation of the non-legal advice. But in such a scenario, the privileged purpose is unlikely to be the dominant purpose. Each communication and the reason for its creation needs to be carefully reviewed.[29]

1. I now turn to the two questions of principle mentioned at [16] above.

21 Propend concerned the seizure of documents by the Australian Federal Police from the office of a solicitor under a search warrant issued pursuant to statute. Privilege was claimed in respect of copies of documents on behalf of the solicitor's clients on the basis that the copies were made solely to obtain legal advice or for use in legal proceedings. The originals of the copies were not privileged.

22 The rule in Propend,[30] in its current form,[31] is that a copy of a non-privileged document will attract legal professional privilege where the dominant purpose for bringing the copy into existence is to seek or provide legal advice or for use in legal proceedings. That principle (adjusted for the effect of Esso) is the ratio decidendi of the case in which the majority were Brennan CJ, Gaudron, McHugh, Gummow and Kirby JJ.

23 Viterra argued that the principle is qualified in that it does not operate if an unprivileged original document is not available or accessible to the person wanting production of the copy. Because in the current case many of the copy documents attached to privileged emails have not been discovered or otherwise made available in their unprivileged original form, Viterra argued that the Propend principle does not apply to the copies. Cargill denied that the qualification represents Australian law.

24 Brennan CJ - alone among the High Court majority on this point - qualified the operation of the rule in Propend. Specifically, his Honour stated that where privileged copies of original documents are seized under a search warrant, some qualification of the privilege is required to ensure that the person executing the warrant has access to the contents of an unprivileged original to the same extent at least as a party to litigation can obtain access to the contents of an unprivileged original against a party who has, or has had, the unprivileged original in his or her possession or power.

[I]f 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.[32]

26 However, in a passage that limited the scope of the qualification to cases involving search warrants, his Honour also went on to state (my emphasis):

The problems that arise when legal professional privilege is given an operation outside judicial and quasi-judicial proceedings may require some modification either of the privilege generally or of its operation in particular situations in order to ensure that the administration of justice - criminal as well as civil - is not impaired. No modification would be permitted if the privilege were claimed in response to an application for discovery or inspection in judicial or quasi-judicial proceedings. In such proceedings, the privilege, once it attaches, is not lost unless it be waived by the holder of the privilege. No balancing of interests is called for, as the balancing has been done in according recognition to the privilege. But when the privilege is invoked in response to the exercise of a statutory authority to search and seize, some modification is required to avoid the frustration of the statute.[33]

1. There are two reasons why Cargill is correct on this point and Viterra's argument must be rejected, at least in these particular proceedings.
2. First, Brennan J's qualification was not supported by any other member of the Court[34] and it has not been applied in any other case so far as research made by the parties or by me has revealed. Indeed, in three instances Brennan CJ's qualification was referred to but not applied,[35] and in two others its existence was doubted and regarded in any event as expressly confined to cases of documents seized under search warrant.[36]
3. Secondly, Brennan CJ himself limited the operation of the qualification to situations outside of judicial or quasi-judicial proceedings. In the second quoted passage above, his Honour explicitly acknowledged that unlike the situation outside the context of judicial proceedings where two statutory rights clashed and modification of one right was required so as not to frustrate the other, in orthodox adversarial judicial proceedings 'the balancing has been done' and no occasion for qualification of the privilege could arise.[37]

30 Viterra argued that the 'rationale' of Brennan CJ's qualification nevertheless applies even though this is not a search warrant case because, for whatever reason, the originals of the attached copy documents for which privilege is claimed are not available to Viterra through discovery or subpoena processes. That argument does not overcome the two reasons for rejecting the argument which I have just stated. Further, even if the qualification proposed by Brennan CJ existed, on its terms it is not engaged by the mere fact that documents are not available in adversarial judicial proceedings.

31 Furthermore, the whole of a copied document warrants protection when the document is copied for the dominant purpose of obtaining legal advice regardless of the purpose for which the original was created. That is because the copy becomes a component part of the whole privileged communication, and it is the communication and not the documents per se that attract the privilege.[38] The rationale and consequence of this principle was explained by Gummow J in Propend:

In the end, the matter turns upon the application of the basic principles outlined earlier in these reasons, in particular those (a) that communications with one's legal adviser which satisfy the criterion of sole purpose are privileged from disclosure and (b) that this privilege extends to the various components of a communication, including material prepared for submission to the legal adviser.

It is not a question of extracting one or other of what may be numerous documents, all of which form part of the privileged communication, and declassifying those particular documents on the footing that the original or other copies exist and there is no bar to compulsory process for the obtaining of them to put in evidence. The communication as a whole is protected to foster the confidential relationship in which legal advice is given and received and thereby to advance the respect for and observance of the law.[39]

32 What should occur when a document is not physically copied (for example, by using a photocopy machine) but is electronically 'copied' when the original communication (perhaps an email or chain of emails which, in turn, may also include an attached file) is reproduced for sending onto another? Such reproduction may be effected by use of the 'reply' or 'forward' function within the email software on a computer or mobile device, or the 'copy and paste' function to incorporate another digital file into the new email.

33 I have previously held, in the circumstances of another case,[40] that when sending an email to a lawyer to obtain legal advice, attaching and 'forwarding' the antecedent chain of emails amounted to making a copy of those previous emails for the dominant purpose of instructing the lawyer to give legal advice. Despite those previous emails not having been created for the dominant purpose of giving or obtaining legal advice, I held they were protected by privilege as being copies created for that purpose under the principle in Propend.

34 It has been said that difficult questions can arise when a court is required to decide whether a chain of emails, copied by the mere click of a 'reply', 'reply all' or 'forward' button on an email application, is protected by client legal privilege.[41] The view has been put that evidence of the mere on-forwarding of a chain of antecedent emails with a new email that is created for the dominant purpose of giving or seeking legal advice may not always be sufficient to confer privilege on the whole chain. For example, the chain may contain earlier emails which would not themselves have attracted privilege when created and are not relevant for the purpose of seeking or giving legal advice in the new email. An opposite difficulty can also arise. The reason for the creation of the last email in the chain may not justify protection whereas, because of the purpose of their creation, earlier emails do.

35 This precise argument was not raised before me in the current applications. The argument about the operation of the Propend principle here was chiefly confined to the question of Brennan CJ's qualification. I am not currently convinced that applying the Propend rule to copied email chains causes the difficulty that has been alluded to. Presumably the antecedent stages of the email chain, created before the privileged communication which later attached them, would reside with an identifiable person and would be capable of being obtained from that person by usual court processes. But the rationale for protecting the copy sent as an element of a privileged communication still applies. Of course its application may result in some parts of the email (considered as a document) being protected when its original would not have been. But that is no different from any other copy document under the Propend principle.

36 It follows that where a reproduction of a document in the form of an attached email chain or electronic file is purposefully incorporated into a communication that is made for the dominant purpose of seeking or giving legal advice, the attached copy forms part of that communication and is protected by client legal privilege.

37 But what about a document (a spreadsheet, for example) that was not originally created for the dominant purpose of giving or obtaining legal advice, but was later added to or modified? Suppose the addition or modification is made either by a client or third party seeking advice from a lawyer or by a lawyer providing advice or seeking further instructions from a client (assuming that the particular additions or modifications were themselves made for the requisite dominant purpose).

38 The modification of the pre-existing version of the document arguably results in a new document being created, even though the changes may only have been be slight. It would not be appropriate in those circumstances to resort to the Propend principle to determine the document's status. Cargill did not contend otherwise but instead argued that where the only changes to the document are those made for the requisite dominant purpose, the new iteration of the document owes its existence to that purpose and so the entire document deserves protection under the privilege. In my view that result may be artificial and produce an undeserved extension of the 'copy' principle in Propend. The answer may depend on the nature of the document and the nature of the changes in each case. To better accord with reality, in most such cases, I would expect that only part of the new document containing the additions or modifications would deserve protection for client legal privilege.

1. Relying upon the Propend principle together with the approach I adopted in Kamasaee to the 'electronic' copying of documents, Cargill argued that where a host email was subject to an unchallenged claim for client-legal privilege, its attachments were also privileged provided they were incorporated into the communication for the same purpose that the host email itself was sent.
2. For its part Viterra argued that in such a case Cargill must still establish the requisite dominant purpose for the sending of the host email in order to gain the benefit of the Propend principle in respect of 'copies' of documents attached to those host emails. In effect, it argued that the absence of a challenge did not establish the necessary affirmative proof.
3. I reject Viterra's argument. The whole regime established by Elliott J's orders and adopted by the parties was designed to remove from contention those emails where privilege was not challenged. That was done so that the Court (and the parties) need only focus on whether privilege was established for those documents where a real dispute existed. Where privilege was claimed but not challenged then the privilege did not have to be established for the immunity from production to apply; privilege was clearly taken to have been established. Put another way, the absence of a challenge was not merely the application of a 'do not press' process. Without first obtaining an amendment to those earlier orders giving leave for privilege to be contested in relation to specific documents only, it is now not open to Viterra to re-agitate questions of privilege over documents it previously decided not to challenge. Leave to amend those earlier orders has neither been sought or obtained. That position is not altered merely because Cargill's claim for privilege over documents that Viterra does challenge is derivative upon the privilege over unchallenged documents.
4. Turning to another matter, both parties agreed that common law principles, and not the provisions of the Evidence Act 2008 (Vic),[42] would govern the determination of the dispute insofar as it concerned the Goldman Sachs Documents. That is because s 131A of the Act relevantly provides that s 118 of the Act (relating to legal advice privilege) only applies in preliminary proceedings where (a) a person is required to produce documents pursuant to subpoena; and (b) the person objects to providing that document. In relation to the Goldman Sachs Documents the person objecting to production (Cargill) is not the same person who is required to produce them (Goldman Sachs).[43] While the same issue does not arise in respect of the Discovered Documents, such that the Act instead of the common law principles would apply, neither party suggested the result would be any different. I agree.
5. At both common law[44] and under the Act,[45] this Court has a discretion to inspect the documents in dispute. But it remains the responsibility of the party claiming the privilege to provide at least enough evidence for the claim first to be entertained; the power of inspection is not to be used as a substitute for evidence.[46] For both applications I was provided with copies of the documents in unredacted form. When I have considered it useful to do so, I have inspected the document to aid my decision in relation to it.
6. I now turn to the documents.

45 Both Cargill and Viterra divided the 28 Goldman Sachs Documents, for the sake of addressing their arguments, into four subject categories, although their category descriptions and their allocation of documents into those categories did not entirely align. There was, however, considerable similarity. Cargill's four categories were Tax, Environmental, Terms of Acquisition and Legal & Regulatory. Viterra also had Tax and Environmental as categories, but its other two categories were Due Diligence Communications and Due Diligence Attachments. Those differences reflect disagreements about the essential nature of the communications. There was a good deal of common ground about assigning documents to the categories of Tax and Environmental, the main difference being that Cargill described as Tax or Legal & Regulatory those documents which Viterra described as either Due Diligence Communications or Due Diligence Attachments.

46 Perhaps more significantly, Ms Whiting gave common evidence about groups of documents, rather than addressing each document individually. That meant that certain criticisms which Viterra made about the quality of the evidence tended to affect a number of documents. For example, in some paragraphs of her affidavit, Ms Whiting stated that a particular group of documents were prepared for the 'dominant purpose' of providing legal advice; in others she said the documents were prepared simply for the 'purpose' of providing legal advice without asserting any dominant purpose; and, still in others, she made no claim about the purpose of preparing or creating the document. That said, Viterra pointedly conceded that it did not take issue with Ms Whiting's statements made in her affidavit about the purpose for the creation of particular documents,[47] and she was not cross-examined.

47 For ease of reference in these reasons, I have listed the disputed documents (by number)[48] in Table 1 below, showing how they were categorised by each party, the paragraph reference to them in Ms Whiting's affidavit and those for which 'dominant purpose', merely 'purpose' or no purpose was claimed.

48 In summarising its oral submissions, Viterra submitted that Cargill's evidence about the 28 Goldman Sachs Documents was insufficient to establish that any of them were protected by legal professional privilege. In the main that was because Ms Whiting, whose evidence Cargill relied upon for establishing the purpose for which documents were created, did not claim to have spoken to anyone who created those documents or had direct knowledge of their purpose. Further, for many of the documents no claim was made that they had been created for the dominant purpose of obtaining legal advice. In most cases the titles of the documents did not suggest any such dominant purpose. Additionally, many of the communications were sent by or distributed to persons within Project Hawk workstreams who had non-legal roles (as well as by or to those with legal roles) suggesting the communications also had non-legal purposes. Viterra argued that, given the critical nature of what Cargill learned in a number of areas from its due diligence process, the content of anything that appeared to relate to the due diligence process should be carefully scrutinised. In short, it submitted I could not be satisfied on the evidence adduced that any of the documents were brought into existence for the dominant purpose of giving or obtaining legal advice.

49 Cargill's broad answer was to say that the overwhelming majority of documents were emails from one or another of Cargill's in-house legal advisers (with attachments thereto), to their client, Cargill, providing (or seeking instructions to provide) legal advice in respect of due diligence for a large scale proposed acquisition. Cargill submitted there was 'no evidence or suggestion' that any of those lawyers had any 'commercial role' and so it should be accepted that their communications were for the dominant purpose of providing legal advice. Thus, Cargill argued, other than a few exceptions which had different justifications, the status of all the Goldman Sachs Documents could be decided in its favour on that basis alone.

50 As for any lack of assertion by Ms Whiting that she took instructions from persons with direct knowledge of particular documents, Cargill replied that the requisite dominant purpose of giving or obtaining legal advice could be sufficiently established from the described nature and content of the documents and the circumstances of their creation (including the identity of the authors and recipients).

51 Much was made by Cargill of the functions that the in-house lawyers are to be taken to have played because they were lawyers and because of the description of the work stream in which they were positioned. From those two facts, it was argued that, there being no suggestion they were carrying out a 'commercial' role, it should be accepted that their communications were all for the dominant (if not sole) purpose of providing legal advice to the client, Cargill.

52 While that remains a possibility upon analysis of the relevant context surrounding the creation of any given document, nevertheless I accept that Ms Whiting's evidence as to the purpose of communications cannot be relied upon as containing evidence sourced from any author because she does not purport to have obtained any such instructions. So, her evidence as to purpose rises no higher than her own inferences from the same objective facts available to me, as well as having inspected each of the documents (as I am prepared to assume she did). As noted, Viterra did not dispute her evidence as to purpose as far as it goes.

53 It is convenient to set out here the names of the team members who comprised the two key workstreams and give some detail about their roles to the extent it was revealed by the evidence. By 'evidence', I include the evidence filed in relation to the Discovered Documents application as well. Set out below are the members of the two workstreams, Structuring/Financing/Tax and Legal/Regulatory, together with the external consultant associated with each work stream:

54 In addition to being members of the workstreams under which they are listed, Nathan Zietlow, Christopher Okoroegbe, Brenda Arndt and Ryan Engle are also listed as members of the 'core deal team' for Project Hawk.

55 According to the evidence, at the relevant time:[50]

(a) Nathan Zietlow was Assistant Vice President and General Tax Counsel/Asia Pacific for Cargill with responsibilities for managing more than 25 tax and customs professionals in several countries, and the global tax lead for Cargill's financial market's businesses;

(b) Christopher Okoroegbe was a Senior Lawyer with Cargill;

(c) Brenda Arndt was a Senior Lawyer with Cargill, also described as an M&A (mergers and acquisitions) attorney;

(d) Thomas MacLeod was a Senior Lawyer with Cargill with specialist knowledge in environment and safety issues;

(e) Mark Kruger was a Senior Lawyer with Cargill with specialist knowledge in human resources issues;

(f) Grace Mililiay was a Senior Lawyer with Cargill with specialist knowledge in intellectual property issues;

(g) Ryan Engle was an Associate Vice President in Strategy and Business Development (SBD) with Cargill, in which role he was principally responsible to project manage transactions or projects assigned to him and contribute to financial analysis for those projects; his qualifications were in accounting and business administration (ie, not legal). He is also described as the SBD Transaction Lead for Project Hawk.

56 By an affidavit filed in respect of the Discovered Documents,[51] Cargill adduced evidence about the function of the in-house lawyers at Cargill with respect to Project Hawk. Essentially it was to provide legal advice to Cargill concerning the project and target assets. That role included giving advice on legal issues identified in due diligence or those raised by non-legal workstreams. In addition they were to advise on the draft transactional documents and sale agreements, and regulatory matters relevant to the project and the transaction. Finally, they were to instruct and work with Allens. Having these roles, it was said, required the in-house lawyers to be apprised of the whole of the due diligence including parts conducted by the non-legal workstreams.

57 Viterra made its submissions first, ordering its submissions by reference to its categories: first Environmental, followed by Tax, Due Diligence attachments and then Due Diligence communications. Cargill, helpfully, adopted the same order. It is convenient for me to do the same.

1. This first batch of documents is described by Ms Whiting in two separate paragraphs of her evidence. Document 122 is an email and Documents 123, 124 and 125 are attachments to it. Cargill says Document 208 is the same document as Document 123 but simply saved to a different electronic drive. There did not appear to be any dispute about that.
2. The title (or subject line) of the host email (Document 122) is 'RE: plant visits URS'. URS was Cargill's environmental consultant. The email was dated 2 July 2013 and sent by Thomas MacLeod, the Senior Lawyer specialising in environment and safety law and a member of the Legal & Regulatory workstream. It was sent to Ryan Engle and copied to nine other members of the Project Hawk team including Ms Arndt and Mr Okoroegbe. Eight of the ten who received the email were not lawyers but all were Cargill employees except two who appear to have Goldman Sachs email addresses. Attached to the email were a draft URS report and two emails from URS to Allens.
3. Ms Whiting deposes that all documents are confidential and 'were prepared for the purpose of providing legal advice on environmental issues to the Cargill parties'.
4. As stated above, the draft URS report (Document 123) is the same document as Document 208: one was located from the 'Project Drive' and the other from the 'Ringtail' database. According to Ms Whiting the draft report was prepared by URS, is dated 11 July 2013 and has the following words on its cover: 'Limited Phase-1 Environmental Site Assessments: Privileged and Confidential. Prepared for Allens'.[52] Ms Whiting deposes that the report was prepared by URS for Allens for the purpose of Allens providing legal advice to Cargill in relation to the transaction. The potential need for assistance by specialist subject experts to provide information and to formulate issues and questions to enable the giving of legal advice in complex commercial transactions is well recognised.[53]
5. The titles (or subject lines) of the attached emails indicate that they concern 'feedback' from site inspections at Adelaide and Perth respectively. They are each sent from URS to recipients at Allens, copied to Mr MacLeod and another URS addressee.
6. Despite the fact that Ms Whiting does not expressly depose that the provision of legal advice was the dominant purpose for sending the host email, but only that is was 'the purpose', nevertheless I am satisfied that the email was sent for the dominant purpose of giving or obtaining legal advice by Allens to Cargill. I draw that conclusion objectively having regard to the following factors which, in combination, evidence the nature and content of the document and the circumstances in which it was created:

(a) it was authored by an internal lawyer who specialises in environment and safety law who was a member of the internal Legal & Regulatory team advising Cargill about the transaction;

(b) it was sent by the internal lawyer to the client (ie, other Cargill personnel, including Ryan Engle the transaction lead for the SBD) as well as to other legal personnel;

(c) legal advice concerning compliance with environmental and safety regulations is a natural and probable input for decision making in a transaction of this nature;

(d) the email attached a draft of a report which, on its face, was prepared by an environmental consultant for the express purpose of enabling the external lawyers to give Cargill legal advice on environmental matters; and

(e) 'feedback' from site visits would be an expected means of instructing legal advisers of facts pertinent to giving legal advice on environmental matters so the subject matter of the two attached emails is consistent with a purpose of the covering email being to provide legal advice.

64 While, of course, environmental consultants could prepare reports for purposes other than for the provision of legal advice, and such reports could be distributed for other purposes, on the evidence there is no reason to think that this particular communication had any other purpose than for the provision of legal advice. The communication does not have to contain the legal advice; it is sufficient if the creation of the communication is directly related to the performance by the lawyer of his or her professional duty as legal adviser to the client.[54] Mr MacLeod sending the results of feedback from site visits of the target business together with a draft report prepared by an environmental consultant at the request of external lawyers instructed to give advice on the transaction, to the client and other lawyers within the client company, seems to me to be wholly aligned with the performance of his duty as one of Cargill's legal advisers. I disagree with Viterra's submission that I could and should discern another purpose and thus be unable to find a purpose which is dominant. It seems to me there is but one clear purpose: to enable the provision of legal advice.

65 The next question is whether privilege extends to the attached documents. The question is whether I am satisfied that the URS report and the two 'feedback' emails may be regarded as copies made for the dominant purpose of obtaining legal advice (within the Propend principle) or otherwise protected in their own right. I have no direct or even hearsay evidence of the purpose for attaching these documents to the host email. I have only Ms Whiting's statement and the objective facts to which I have already referred.

66 In relation to the URS report I have little difficulty concluding that the dominant purpose of 'copying' it as an attachment was in order to obtain legal advice on environmental matters, having already concluded that the host email was sent for such a purpose. The attaching of the report, judging from its described nature, would be consistent with that purpose. As for the emails, because it is my view that feedback from relevant sites are an expected means of instructing legal advisers of pertinent facts on environmental matters to enable the giving of advice, the conclusion that the host email was created for the requisite dominant purpose leads readily to a further inference, as a matter of probability, that those emails were also 'copied' for the same dominant purpose. Accordingly, I find the feedback emails were also copied for the requisite purpose and are covered by legal professional privilege.

67 Aside from the application of the Propend principle, on the evidence, and particularly the words appearing on the face of the report, I would have found that the draft URS report was independently created for the dominant (in this case, sole) purpose of enabling the provision of legal advice.

68 I think in this case I would reach the same conclusions about the two emails providing feedback from site visits. While, ordinarily, an email from an environmental staff person providing feedback from a site inspection might not suggest the dominant purpose of enabling the provision of legal advice, the facts here are a little out of the ordinary. The emails were addressed primarily to lawyers in the context of there being an instruction to the environmental consultant to prepare a report on environmental matters for the lawyers so they in turn could provide legal advice to the client. Those facts persuade me that the dominant purpose for creating the 'feedback' emails was for the giving of legal advice.

69 It may appear that there is a degree of circularity in the above reasoning about these documents in that the nature of the attachments reinforced my conclusion about the dominant purpose for the host email, and the conclusion that the host email had the requisite dominant purpose contributed to the conclusion that the attachments were copied for the same purpose. However, this is really a consequence of dealing with them in steps: in reality, the four documents need to be viewed as a totality with the nature and contents of each (so far as they are apparent) contributing to and influencing my evaluation of the others.

70 In conclusion, this batch of documents all deserve immunity from production under legal professional privilege.

1. Ms Whiting says these documents comprise emails (and their attachments) between Mr Zeitlow, Goldman Sachs and members of the Project Hawk team, including Ms Arndt and Mr. Okoroegbe. She says they are confidential communications - between lawyer and client, lawyer and the client's third party advisers (ie, Goldman Sachs) and lawyer and other members of the tax work stream - made for the 'dominant purpose' of Mr Zeitlow providing legal advice to Cargill in relation to tax law issues arising in the due diligence process for the purchase of JWM.
2. Document 35 is an email with the title 'RE: Project Hawk|Draft Due Diligence Question List'. It is dated 13 June 2013. It has two attachments, one dated 10 June 2013, the title of which indicates it is a spreadsheet called 'Preliminary Due Diligence Question List - Draft' and the other being a document titled 'Project Hawk Additional DD Items (v.2)'. Document 38 is an email from Mr Zeitlow of 14 June titled 'RE: Project Hawk |Draft Due Diligence Question List'. Document 41 is an email from Mr Zeitlow of 17 June titled 'FW: Project Hawk |Update Call (Monday) |Agenda & Phase 2 Kick-off Materials'. Document 42 is an attachment to the email comprising Document 41, is dated 16 June 2013 and is titled 'Project Hawk_Phase 2 Kick-off Materials'.
3. Viterra argues that the titles of the documents do not reference tax law, due diligence suggests a commercial purpose, and even if there was some tax advice given in respect of due diligence, objectively there is nothing to satisfy me that the creation of any of those documents was for the dominant purpose of giving legal advice.
4. Cargill says I should be persuaded that the documents were created for the relevant dominant purpose because: the host emails were authored by Cargill's general tax counsel whose role it was to give tax advice; they were copied to (amongst others) two other lawyers; legal advice with respect to due diligence or due diligence with respect to legal matters is a natural and expected aspect of a large acquisition of this type; and it is merely speculative to think that there was a commercial purpose for the sending of these communications.
5. I am strongly influenced by the fact that the three host emails (Documents 35, 38 and 41) were authored by Cargill's general tax counsel who headed the Structuring, Financing & Tax work stream. Given that all participants are playing an advisory role in the context of a proposed acquisition, that fact primarily suggests that the subject and purpose of the communication was to perform the role of giving tax advice. I accept that by its nature taxation advice intersects with, or may overlap with, other 'commercial' considerations (such as financing), but that observation does not strip the taxation advice of its legal character. In any event, authority indicates that in this field the concept of legal advice is fairly wide.[55] Where a taxation lawyer is performing a role in his or her professional capacity, as Mr Zeitlow clearly was, the communication is privileged even though it does not contain actual legal advice, so long as it directly relates to the performance the role of legal adviser to the client.[56]
6. It is also true that the titles to the documents include terms like 'due diligence', 'questions', and 'kick-off materials' which do not inherently describe legal advice. But neither do they exclude it. Question lists and due diligence lists are apt to describe documents used to collate information and questions relevant to the provision of legal advice, as much as any other specialty input, in a structured, coordinated and methodical way within a multi-disciplinary enterprise, as this was.[57]
7. Moreover, some back and forth with these types of documents is to be expected. But Beach J in Asahi cautioned against adopting too generous an approach to the concept of the necessary 'continuum' of communications between lawyer and client for the purpose of providing legal advice where the communications did not occur simply within a one-to-one link between solicitor and client.[58] Commenting on a passage from Balabel & Anor v Air India in which this notion was described,[59] his Honour said:

I am not sure that it adds much to the present issues. It is dealing with the one to one links between solicitor and client. But the present case is different. Here, we are dealing with many more heterogeneous links where non-legal advisers are being interposed at many points. The metaphor of a continuum is not apposite to the multi-dimensional communications between a client, various solicitors and multiple third party advisers involved in a complex transaction.[60]

78 That observation resonates in this exercise too, and I bear it in mind. Doing so, I have found it necessary to look at the documents in this category to ascertain their nature and content and aid the process of decision making.

79 Having viewed Mr Zeitlow's three covering emails, I find that they are, as described by Ms Whiting, communications from Mr Zeitlow that are concerned with his speciality. More particularly, the communications concern input and advice on what taxation issues should be the subject of the due diligence process. Essentially the emails contain a back and forth dialogue between Mr Zeitlow, Goldman Sachs and Cargill personnel, copied to numerous others, with respect to the appropriate taxation issues for inclusion in the due diligence process. My preliminary view formed from the authorship of the emails, Mr Zeitlow's described role and position, and the emails' distribution is confirmed. The emails are privileged.

80 Turning to the attachments (Documents 36, 37, 42 and 43):

(a) Document 36 is an attachment to Document 35. It is a list of questions for due diligence with 165 rows. The list is categorised by category and sub-category, not all of which relate to taxation matters. It was plainly not created for the dominant purpose of giving or obtaining tax advice although that may have been one of its purposes. But by being incorporated as an attachment to a confidential communication from Mr Zeitlow sent for the dominant purpose of giving or enabling the giving of legal advice, it was clearly 'copied' for that purpose. I find it is privileged, applying the Propend principle.

(b) Document 37 is another attachment to the same email. On its face it was created for the dominant purpose of obtaining legal advice, but it also attracts privilege under the Propend principle by being incorporated as an attachment to a communication sent for that purpose.

(c) Document 42 is an attachment to email Document 41. It was plainly not created for the dominant purpose of obtaining legal advice. It was not created by lawyers and it serves other purposes. However, from inspection its inclusion had a logical and clear purpose as part of a communication designed to obtain legal advice. For that reason, as a copy it warrants protection under the Propend principle.

(d) Document 43 is another attachment to email Document 41. It is of the same nature as Document 36 and the same reasoning applies to it. It may actually be a 'new' document in as much as it seems to contain additions to a previous version, those additions having been made by lawyers for the evident purpose ‒ and,I infer, the dominant purpose ‒ of providing legal advice. Aside from the whole document being privileged under the Propend principle, I would have ordered that the document be produced with those parts containing the additions inserted by lawyers redacted.

81 I conclude this batch of documents all deserve immunity from production under legal professional privilege.

82 Document 62 was described by Ms Whiting among the batch of documents I have just dealt with. Accordingly, she characterised the purpose for its creation as being for the dominant purpose of Mr Zeitlow providing legal advice. Documents 91 and 92 were described in a separate paragraph by Ms Whiting as comprising an email from Mr Zeitlow attaching a draft tax due diligence report and document tracker. She claimed they were prepared for the purpose of providing legal advice to the Cargill parties as to tax issues relating to the acquisition of JWM.

83 Document 62 is an email dated 19 June 2013 from Mr Zeitlow to Mr Engle and a Golden Sachs person, copied to numerous others including Ms Arndt and Mr Okoroegbe. The subject line of the email is 'Project Hawk - Tax Update for Call'. Document 91 is an email dated 2 July 2013 from Mr Zeitlow to Goldman Sachs and Cargill personnel, copied also to Ms Arndt and Mr Okoroegbe and several others. The subject line is 'FW: Project Hawk - Tax Update'. Document 92 is an attachment to that last mentioned email. From its description, it is a spreadsheet titled 'Tax Due Diligence Report & Document Tracker, V 0.4'.

84 As noted, no 'dominant' purpose is asserted for the creation of Documents 91 or 92.

85 Judging from the authorship, subject lines and addressees of the two emails (Documents 62 and 91), I am satisfied that they were created for the dominant purpose of providing legal advice and are therefore privileged. They are of the same nature as Documents 35, 38 and 41 from the last batch.

86 Document 92 appears to be a document which from its description would have a logical purpose for being included as part of a communication designed to obtain legal advice on taxation issues. For the sake of certainty I inspected that document and am confirmed in that conclusion. It gains protection under the Propend principle as a copy made for the dominant purpose of giving legal advice. Like Document 43 additions have been made by lawyers for the evident, dominant purpose of giving legal advice. Aside from the whole document being privileged under the Propend principle, I would have ordered that the document be produced with those parts containing the additions inserted by lawyers redacted.

87 The three documents in this batch are entitled to protection for legal professional privilege.

88 Ms Whiting described Document 206 as an email from Mr Zeitlow to Marcus Clarke of Allens responding to tax-related items in a document titled 'Transaction Documents Issues List'. She claimed they were prepared for the 'purpose' of Allens providing legal advice to the Cargill parties.

89 Documents 213-215 were described as emails between Mr Zeitlow and Goldman Sachs regarding tax issues arising in relation to the completion of the transaction, including issues relating to stamp duty and FIRB approval. No purpose was asserted.

90 Document 206 is described in the schedules as an email from Mr Zeitlow dated 2 August 2013 with the subject line 'RE: Project Hawk | Internal Discussion'. In addition to being sent to Mr Clarke of Allens, there were 17 other addressees, including Ms Arndt and Mr Okoroegbe and two other lawyers at Allens. Documents 213 and 214 are emails from Mr Zeitlow dated 29 October 2013 with the same subject line heading, 'RE: Project Hawk | Weekly Completion Call |Agenda'. The addressees of those two emails are two Golden Sachs employees and one Cargill employee. Document 215 is an email from Mr Zeitlow of 30 October 2013 with the subject line 'RE: Project Hawk |Summary of Completion Call (30 October 2013)'. Mr Zietlow sent that email to about 28 personnel, including three in-house Cargill lawyers and three Allens lawyers.

91 As with other documents, Viterra argues that these three documents are sent for mixed purposes with there being no claim of dominant purpose in respect of one and no claim for any purpose in respect of two. It is said that the subject matter discerned from the title of the documents does not bespeak any particular legal purpose, let alone a dominant legal purpose.

92 In relation to Document 206, because it is addressed from Mr Zeitlow primarily to Mr Clarke of Allens and is said to respond to tax-related items in the transaction documents issues list, I think it is a fair inference that that particular email was created for the dominant purpose of providing legal advice. In my view, the assertion by Viterra that Mr Zeitlow might have been communicating by this email for broader commercial purposes is entirely speculative. As for the remaining documents, the specific issues identified by Ms Whiting tend to establish that the communications were for the dominant purpose of providing legal advice. The very wide distribution of Document 215 has caused me to inspect that document to remove any doubt. Having done so, I am satisfied it forms part of a series of communications in which Mr Zeitlow is providing actual legal advice in relation to issues arising in relation to the completion of the transaction.

93 In conclusion this batch of documents all deserve immunity from production under legal professional privilege.

94 Ms Whiting describes this document as a document titled '130628 Tax Due Diligence Report & Document Tracker V.0.4'. She says it contains tax advice provided by Mr Zeitlow in relation to issues arising in the due diligence process, prepared for the dominant purpose of providing tax law advice to the Cargill parties in relation to the acquisition of JWM.

95 In the schedules the document is described as an electronic file and the same title is given. It is hard to grasp precisely what Viterra's objection is to this document. Ms Whiting not only asserts it was prepared for the dominant purpose of providing tax law advice, but said it actually contains tax advice from the senior tax lawyer of the company. Viterra's point appears to be that because the title references 'due diligence', and because Viterra is so anxious to ascertain what knowledge Cargill gained from its due diligence for the purpose of the central issues in the case, it complained that there was inadequate specificity of the type or nature of the legal advice that was said to have been provided. Viterra, again, emphasised that Ms Whiting did not depose to having obtained instructions from Mr Zeitlow and thus could not give any direct evidence about the purpose of this document's creation.

96 In my view, those arguments are thin. The objective features of this document, in the context of the nature of this transaction and the various teams assembled to provide their specialised advice towards it, supply adequate grounds for the inference that the dominant purpose for its creation was to provide legal advice (and that it did so). The document's title indicates it is likely to be the same document as Document 92, or a version of it. Having now inspected it, that assumption is confirmed to be correct.

97 Viterra's suspicion that anything to do with due diligence is likely to have broader commercial purposes is not borne out by an inspection of this particular document.

98 Its protection for legal professional privilege is warranted.

99 Viterra's next category comprises only these two documents. Cargill categorised them differently, with Document 144 categorised as Legal & Regulatory, and Document 147 categorised as Tax.

100 Ms Whiting describes Document 144 as a draft due diligence memorandum titled 'Project Hawk - Material Due Diligence Issues Register - Legal Regulatory'. Other versions of the same document were already discovered as privileged documents and she identified them as such. She states that Document 144 was created for the purpose of providing legal advice to the Cargill parties in relation to legal issues arising in a due diligence process for the acquisition of JWM. She describes Document 147 as a further draft tax due diligence report that had been attached to an email from Mr Zietlow prepared for the purpose of providing legal advice on tax issues relating to the acquisition of JWM.

101 From the schedules, Documents 144 and 147 both appear to have been attachments to a host email sent by Mr Engle on 13 July 2013 to six people, three at Golden Sachs and three at Cargill (none of whom are lawyers). So, as Viterra points out, these documents were attachments to an email sent by a non-lawyer to other non-lawyers. The subject line of Mr Engle's host email is simply 'Hawk | DD Memos'.

102 The titles of Documents 144 and 147 respectively suggest some probable taxation relevance although, on those titles alone, one could not possibly assume they were prepared for the dominant purpose of providing legal advice. Document 144, however, is said to be the product of the Legal & Regulatory workstream to the overall due diligence report.

103 The evidence of Ms Whiting provides more basis to find that Document 144 was prepared for the dominant purpose of providing legal advice because she at least says that it was prepared by the Legal & Regulatory workstream. It would seem unlikely, in my view, for that workstream to prepare a document other than to enable the giving of legal advice as an input to the overall due diligence process. The evidence about Document 147 is rather thin.

104 An inspection of both documents indicates they both contain actual legal advice and that the nature of them is such that it is evident that the dominant purpose for their creation was the provision of legal advice.

105 They each deserve the protection of legal professional privilege.

106 Ms Whiting describes these two documents as an email and attachment from Mr Clarke of Allens to various Project Hawk team members at Cargill, including Mr Okoroegbe, Ms Arndt and Mr Zeitlow. She says the email attaches and explains a document titled 'Project Hawk - Transaction Document Issues List' which was prepared by Allens and contains legal advice as to legal issues arising from the draft Acquisition Agreement.

107 Viterra points out that the description of Document 199 is incorrect. The schedules indicate that Document 199 is an email dated 26 July 2013 sent from Mr Engle to 16 or so recipients, including Ms Arndt, Mr Okoroegbe, Mr Clarke and two other Allens employees. Cargill invites me to inspect this document because, whilst not denying that the email at the 'top of the chain' is that of Mr Engle, they suggest that those below it in the chain meet the description contained in Ms Whiting's affidavit. The explanation, they say, is that the description for this particular document was supplied by Goldman Sachs in answering the subpoena.

108 As invited, I have looked at Document 199. Before getting to that, I should say I have also looked at Document 200, the attachment described as 'Project Hawk - Transaction Documents Issues List' said to have been prepared by Allens and containing legal advice. An inspection of that document plainly reveals that description to be correct. Going back to Document 199, whilst the last email in the chain is indeed Mr Engle's and it is sent to Mr Clarke and others, it is a response to an email from Mr Clarke to Mr Engle and others attaching the issues list and discussing its contents. I infer that the email from Mr Clarke to Mr Engle (the penultimate email in the chain comprising Document 199) and the attachment (Document 200) were, by their nature, prepared for the dominant purpose of providing legal advice. Mr Engle's email in response (the top email in the chain of Document 199) appears similarly to have been prepared for the dominant purpose of obtaining further legal advice.

109 In my view, both of these documents deserve protection by way of legal professional privilege.

110 Ms Whiting describes Document 216 in the same paragraph as her description of Documents 213-215 (analysed previously). She says it is an email between Mr Zeitlow and Goldman Sachs regarding tax issues arising in relation to completion, including issues relating to stamp duty and FIRB approval. The description of the document in the schedules suggests otherwise. It is said to be an email dated 31 October 2013 from Terry Gray of Cargill to about 28 recipients, including Ms Arndt, Mr Okoroegbe, Mr Zeitlow, Ms Savona (another lawyer at Cargill), Mr Clarke of Allens and two other Allens lawyers.

111 Accordingly, Viterra argues it is a document from a non-lawyer, wrongly described in the evidence, not said to have been prepared for any purpose concerning legal advice let alone a dominant purpose, and bearing a title which does not itself suggest any particular legal purpose. Viterra's complaints or criticisms are well founded and the evidence in relation to this document is poor. In addition, Viterra brought to my attention two documents (Documents 444 and 449) which had been released to it in a redacted form shortly before the hearing. Until then those documents had been withheld on the same basis as Document 216. That is, in her affidavit, Ms Whiting groups those other documents with documents 213-216, gives them the same description and the same explanation as to why they are privileged. Unsurprisingly, Viterra surmised that Document 216 might, likewise, contain only a part which arguably warrants protection.

112 Again, I was invited by Cargill to inspect the document (perhaps to make up for the lack of appropriate evidence), and have done so.

113 This document was in fact categorised by Cargill as a Tax document, along with Documents 213, 214 and 215. Upon inspection of the document it is plain that Document 216 is the next step in an email chain after Document 215, which I have already analysed and held to qualify for protection under legal professional privilege. But, I am not satisfied that the final email in the chain (the email from Mr Gray) was prepared for the dominant purpose of obtaining legal advice. It seems more likely to me to be responding to a human resources issue referred to in a list of issues appearing earlier in the email chain, not being one to which Mr Zeitlow was himself responding in the penultimate email in the chain.

114 Furthermore, comparing it with Documents 444 and 449 it appears there is probably information in it that Cargill would concede is not privileged, or at least in respect of which privilege need not be pressed. Those documents are emails from Dharnae Kern of Goldman Sachs that list key issues under various subject headings apparently discussed in the completion calls on the dates the emails bear (9 October and 16 October 2013 respectively). Very similar emails with those same subject headings appear in a number of the Discovered Documents, including Document 216 as well as Documents 452 and 454 (discussed below). It is difficult to see why subject matter that is not redacted in Documents 444 and 449 deserve any protection when that same subject matter is dealt with in completion call summaries on later dates.

115 I think the solution for Document 216 is to require its production in a form that reveals the email from Mr Gray of 31 October 2013 and the earlier email from Ms Kern except for those parts that contain explicit tax advice (which I will identify to Cargill when delivering these Reasons so that a redacted form of the document can be produced).

116 These documents are described by Ms Whiting as emails between Goldman Sachs and members of Cargill's Project Hawk completion team, including Mr Okoroegbe, Ms Arndt, Mr Zeitlow and lawyers at Allens. She says that the emails organise, summarise and discuss completion calls and completion actions including FIRB approval and other tax law issues, including stamp duty. They are said to have been prepared for the purpose of providing Cargill with legal advice in relation to completion.

117 Viterra correctly points out they are not claimed to have been prepared for the dominant purpose of providing legal advice. None are authored by a lawyer, although each is distributed amongst lawyers. The titles of the documents of themselves do not indicate an obvious topic pertaining to a legal matter, although Ms Whiting says the information covered in them included 'FIRB approval and other tax law issues, including stamp duty'.

118 Cargill appears to have overlooked making any submissions orally in relation to these three documents and their written submissions merely repeat what Ms Whiting said in her affidavit. In substance, these submissions are unhelpful.

119 From the schedules Document 452 is an email from Ms Kern dated 23 October 2013 titled 'Project Hawk | Summary of Completion Call (23-October-2013)'. It is addressed to some 26 recipients, including those identified by Ms Whiting. Document 454 is an email dated 30 October 2013 with the same title, from the same sender and to a similar number of recipients, including the same lawyers. They are of the same nature, addressing similar subject matter, as the email Documents 216, 444 and 449 discussed above.

120 I think the solution for Documents 452 and 454 is to require their production except for those parts that contain explicit tax advice (which I will identify to Cargill when delivering these Reasons so that a redacted form of the document can be produced).

121 Document 453 is an email of 29 October 2013 titled 'RE: Project Hawk | Weekly Completion Call |Agenda' from Joseph Niven at Goldman Sachs to Mr Zeitlow, another Goldman Sachs person and another Cargill person. Cargill characterises these documents as Tax documents.

122 Having inspected it, Document 453 appears to be the continuation of the email chain that is in Document 213 which I have already determined to be covered by legal professional privilege. It is Mr Niven's acknowledgement of receipt of Mr Zeitlow's legal advice for Cargill, commenting on a part of it. In my view, it merits protection by legal professional privilege.

123 Viterra is entitled to production of a redacted version of Documents 216, 452 and 454. I will indicate to Cargill when I deliver these reasons which parts of those documents may be redacted and shielded from production.

124 Otherwise, Viterra is not entitled to production of any part of the remaining Goldman Sachs Documents.

125 As noted above, the application in relation to these documents is to be determined under the provisions of the Act, although it is not suggested the principles are relevantly different from those applied in respect of the Goldman Sachs Documents. The terms of s 118 of the Act which are expressly applied by s 131A to questions of the disclosure of documents in preliminary proceedings such as this are:

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.

126 The parties agreed on a categorisation of the 25 documents remaining as contested privilege claims in this group.[61] Table 2 below depicts the category label and document number as assigned in the parties' schedules of Discovered Documents:

3, 6, 7, 8, 9,* 10, 12, 14, 15, 16, 21, 26 (*Doc 9 is the covering email to Doc 10. Privilege is challenged in both documents)

127 However, the documents can mostly be categorised by other means that would simplify matters:

(a) Documents 1 and 18 are duplicates of one another and are also the same as Goldman Sachs Document 91, emanating from the same source. I have already decided that Goldman Sachs Document 91 warrants protection for legal professional privilege as it was part of a confidential email communication (ie, an attachment to the email, Goldman Sachs Document 92) that was created for the dominant purpose of obtaining legal advice.[62] These two Discovered Documents, being duplicates of that same attachment, are therefore privileged for the same reasons.

(b) Document 29 is the same document as Goldman Sachs Documents 123 and 208. I have already decided those documents are privileged as attachments to a privileged email but also in their own right.[63] For similar reasons, Document 29 is privileged as an attachment forming part of a privileged communication but also in its own right for the same reasons given for Goldman Sachs Documents 123 and 208.

(c) As acknowledged by Viterra, 21 of the 25 contested Discovered Documents consist of attachments to host emails over which Cargill has made uncontested claims for privilege (the 21 attachments).[64] Cargill argued that it is appropriate for the purpose of this application to treat the host emails over which no challenge is made as being established as privileged documents. Viterra disputed that argument. I have determined that argument in favour of Cargill.[65] The consequence of that finding, together with the operation of the Propend principle, is that all 21 documents qualify for protection under legal professional privilege as whole documents if it appears that the purpose of their attachment was in accord with the purpose for the sending of the host email.

(d) Documents 5, 9 and 10 do not share the same characteristics of any of the preceding groups and must be considered individually.

128 I need not deal further with Documents 1, 18 and 29 as they are privileged for the reasons just explained.

129 Viterra characterises these documents as 'due diligence process documents' which, from their descriptions, appear to have been prepared by Goldman Sachs. It argues there is a lack of appropriate evidence that these documents (whether separate to the host emails or otherwise) were created for the dominant purpose of seeking or providing legal advice.

130 It contends that even if there are parts within the documents that were created for the purpose of seeking or providing legal advice, client legal privilege cannot be claimed over the whole document where the evidence does not demonstrate that the entire document was created was for the requisite purpose. In addition, Viterra says Cargill has not adduced evidence identifying the person or persons who created each such part.

131 It further argues this Court should be particularly suspicious of privilege claims made on the basis of documents containing questions raised by unspecified Cargill due diligence workstreams or unidentified in-house Cargill lawyers given that the descriptions state that these documents were prepared by Goldman Sachs.

132 Document 3 is titled 'DD - Workstreams - Questions - Issues - Progress - 072613 - Updated' and dated 7 August 2013. It was attached to an email from Mr Okoroegbe to Ms Arndt, Ms Savona (Country Lead Counsel, Australia and New Zealand, Cargill)[66] and Tzan-Chiu Wan (Asia Pacific General Counsel).[67] Cargill have claimed privilege in respect of the host email and Viterra has not challenged it.

133 Adopting the conclusion expressed above,[68] I hold that this document is privileged as forming part of a confidential communication between Cargill's lawyers for the dominant purpose of providing legal advice to Cargill regarding the possible acquisition of JWM.[69] Inspection of the host email confirms that the purpose for incorporating the attachment into the communication was in accord with the purpose of the email itself.

134 In any event, this is one of the Excel spreadsheets containing draft questions and issues identified progressively by the Project Hawk workstreams, including the Legal & Regulatory workstream. Ms McCudden's evidence establishes that these iterative spreadsheets included 'pages':

(a) prepared by Cargill's in-house lawyers setting out legal advice on issues or issues identified as requiring further legal advice; or

(b) in which other workstreams had created draft lists of issues and questions for legal advice concerning the impact of those issues or how to address them in the draft transactional document and sale agreements.[70]

135 Document 3 is an iterative spreadsheet of the type Ms McCudden described. Inspection of the contents of the rows and columns inserted by the Legal & Regulatory workstream makes it sufficiently plain that it was inserted for the dominant purpose of providing legal advice. Aside from the whole document being privileged under the Propend principle, I would have held it was privileged in its own right, but only to the extent of those parts of it that could be identified as setting out legal advice or issues (or draft lists of issues and questions) requiring legal advice.

136 Documents 6 and 7 share the same title, 'DD - Workstreams - Questions - Issues - Progress - v1'. They were both seemingly created by Goldman Sachs/UBS AG and are both dated 19 June 2013. Document 6 was attached to an email from Mr Okoroegbe to Mr Clarke and Ms Arndt (CAR.100.001.2091). Document 8 is titled '2013-06-14_Preliminary DD Question List_Draft' and seemingly prepared by Goldman Sachs/UBS AG. Both it and Document 7 were attached to an email from Mr Okoroegbe to Mr Clarke and Ms Arndt (CAR.100.001.2105). They are all iterative spreadsheets of the type described by Ms McCudden.

137 All three documents form part of a confidential communication between Cargill's internal and external lawyers, being attachments to emails between them over which privilege has been claimed and not challenged. Inspection of the host emails confirms that the purpose for incorporating the attachments in the communications was in accord with the purpose of the emails themselves. Applying my conclusions above with respect to the Propend principle, I hold that each of them is privileged.

138 Having inspected each of the documents, aside from the whole document being privileged under the Propend principle, I would have held they were privileged in their own right, but only to the extent of those parts of them that could be identified as setting out legal advice or issues (or draft lists of issues and questions) requiring legal advice.

139 Document 12 is a spreadsheet titled 'DD - Workstreams - Questions - Issues - Progress - v1 (June 20)' and seemingly prepared by Goldman Sachs. It is an attachment to an email from Mr Okoroegbe to Mr Clarke and Ms Arndt (CAR.130.033.0135). It is dated 21 June 2013 and is an iterative spreadsheet of the type Ms McCudden described. Privilege has been claimed over the host email and not challenged by Viterra. Again, this document forms part of a confidential communication between Cargill's internal and external lawyers for the dominant purpose of Cargill lawyers providing legal advice to it in relation to the possible acquisition of JWM.[71] Inspection of the host email confirms that the purpose for incorporating that attachment in the communication was in accord with the purpose of the email itself. Applying the Propend principle in accordance with my conclusions, I find that Document 12 is protected by legal professional privilege.

140 Aside from the whole document being privileged under the Propend principle, I would have held it was privileged in its own right, but only to the extent of those parts of it that could be identified as setting out legal advice or issues (or draft lists of issues and questions) requiring legal advice.

141 This document is titled 'DD_Workstreams_Questions_Issues_Progress_v1 (June 21)', was seemingly prepared by Goldman Sachs and is dated 22 June 2013. It was an attachment to a host email from Mr Okoroegbe to Patrick Bowe, Khai LeBinh, Mr Engle and Ms Arndt. Privilege has been claimed in respect of the host email and Viterra has not challenged Cargill's claim.

142 The evidence is that the email and its attachments were created and sent for the dominant purpose of Cargill's in-house legal advisers providing legal advice in relation to questions and issues arising during the due diligence.[72] Document 14 is an iterative spreadsheet of the type Ms McCudden described. Inspection of the contents of the rows and columns inserted by the Legal & Regulatory workstream makes it sufficiently plain that it was inserted for the dominant purpose of providing legal advice.

143 Inspection of the host email confirms that the purpose for incorporating that attachment in the communication was in accord with the purpose of the email itself. Applying the Propend principle in accordance with my conclusions, I find that Document 14 is protected by legal professional privilege.

144 Aside from the whole document being privileged under the Propend principle, I would have held it was privileged in its own right, but only to the extent of those parts of it that could be identified as setting out legal advice or issues (or draft lists of issues and questions) requiring legal advice.

145 Cargill deals with Documents 15 and 16 together.

146 Document 16 is a spreadsheet titled 'DD - Workstreams - Workstreams - Questions - Issues - Progress - 072613 - Updated' that is dated 7 August 2013 and seemingly prepared by Goldman Sachs. It is the same document as Document 3, attached to the same host email. As I have already decided Document 3 is privileged from production, the same result obtains for this document insofar as the Propend analysis applies.

147 Document 15 is titled 'LAW_n4105517_v1_Project Hawk_Joe White Maltings _Transaction_ Summary'. Although Cargill's schedule attributed its authorship to Ms Arndt, Cargill conceded it could not rely on that particular piece of information. In the result there is no evidence of its authorship. It was also an attachment to the same email to which Document 16 was attached. Cargill has claimed privilege in respect of the host email and Viterra has not challenged it. Cargill's evidence is that the email and its attachments were created and sent for the dominant purpose of Cargill's legal advisers providing legal advice in relation to the possible acquisition of JWM.[73]

148 Inspection of the host email confirms that the purpose for incorporating Document 15 in the communication was in accord with the purpose of the email itself. Applying the Propend principle in accordance with my conclusions, I find that Document 15 is protected by legal professional privilege.

149 This document is described as 'DD - Workstreams - Questions - Issues - Progress - 0362713 - v2', is dated 3 July 2013 and was seemingly created by Goldman Sachs . It is a spreadsheet that was attached to an email from Lisa Jewison (a non-lawyer Cargill employee) to Joseph Niven, Anup Jois and Ms Kern and copied to Mr Engle, Vincent Limauge and Scott Barnett (non-lawyers). A redacted version of this document has been provided by Cargill to Viterra under the 'do not press' regime, but the privilege claims over the redacted portions remain contested.

150 This document was referred to in a witness statement of Lisa Jewison provided by Cargill to Viterra on 4 December 2017. Ms Whiting says that it was referred to 'inadvertently' in that statement. Cargill's lawyers in this litigation (Gilbert+Tobin) immediately wrote to Viterra's lawyers saying that the document identification number had been inadvertently referred to in the witness statement and sought to revoke reference to it.[74] Apparently, the independent barrister who reviewed documents took the view the document was privileged.

151 In her witness statement Ms Jewison explains that she is regional controller for North America for Cargill. Her qualifications are in accountancy and in 2013 she was employed as global controller in the malt business unit whose primary responsibility was to oversee finance teams. At [54] of her witness statement she explains that on 3 July 2013 she sent documents containing questions that her team had prepared relevant to the accounting, financial and IT workstreams to be put to the CFO of JWM at a scheduled telephone call. Questions were sent to Goldman Sachs so that they could be provided to Viterra. She identifies Document 5 as one of the documents containing those questions.

152 Cargill claims that the document is a confidential document setting out questions and issues arising during the due diligence that was prepared for the dominant purpose of Cargill obtaining legal advice.[75] This document is not an attachment to a privileged email. Viterra argues that Ms Jewison's description of the document and the circumstances surrounding its creation show it was not made for a dominant legal purpose but, instead, for a commercial purpose.

153 I agree with Viterra's submission that the opinion of the independent barrister is not binding on me. I also agree that the circumstances evidently surrounding the creation of this document, as described by Ms Jewison, do not support any conclusion that it was created for the dominant purpose required to attract client legal privilege.

154 Having initially only inspected the redacted version of the document it was evident that Document 5 is a spreadsheet containing lists of requests, questions and issues populated by various workstreams (including non-legal workstreams) of the type described by Ms McCudden. To the extent that the document contains parts prepared by non-legal workstreams, it is plainly not privileged. Five pages of this multi-page spreadsheet are entirely redacted. After requesting a further, unredacted copy it became apparent that the redactions obscured parts that contain requests/questions/issues relating to legal issues, and responses thereto, inserted by Cargill's Structuring, Financing & Tax and Legal & Regulatory workstreams. I am satisfied from the nature of them that those parts were inserted for the dominant purpose of Cargill's in-house lawyers giving legal advice to Cargill.

155 I find that the redacted portions of Document 5 are privileged and should not be produced.

156 Document 9 is an email dated 19 June 2013 with a subject title 'FW: Hawk/DD Questions and Progress Report'. It was from Mr Engle and addressed to two Goldman Sachs personnel, copied to Cargill's in-house lawyers, Mr Okoroegbe and Ms Arndt. It is the host email for Document 10. Document 10 is a spreadsheet titled 'DD_Workstreams_Questions_Issues_Progress_v1', evidently prepared by Goldman Sachs and dated 19 June 2013. Cargill's evidence is that the email from Mr Engle forwards an email from Mr Okoroegbe which, in turn, provides to Mr Le-Binh (a non-legal Cargill employee) an attachment setting out the legal questions which the Legal & Regulatory team had raised with respect to the proposed acquisition. Document 10 is that attachment. Cargill claims that the email chain and its attachment were created and sent for the dominant purpose of the lawyers providing legal advice to Cargill with respect to the possible acquisition of JWM.[76]

157 Viterra argues that questions raised by the Legal & Regulatory workstream were not necessarily for the dominant purpose of legal advice and that a bare formulaic assertion does not establish a proper basis for a claim over those documents.

158 Having inspected Document 9, it is plain that the penultimate email from Mr Okoroegbe to Mr Le-Binh was sent for the purpose of forwarding a set of legal questions to be added to the due diligence questions and progress report. The attachment, Document 10, is an iteration of that document which is populated by the Legal & Regulatory workstream with questions which, from their nature, were prepared, I infer, for the dominant purpose of providing legal advice.

159 The text of Mr Engle's email to the Goldman Sachs personnel shows that the purpose for on-forwarding Mr Okoroegbe's email and Document 10 was consistent with the purpose of the underlying email. On that basis I hold that both Documents 9 and 10 are privileged from production.

160 Document 19 is an email dated 25 July 2013 from Mr Engle to Cargill employee Doug Eden with the subject line 'Hawk-URS Environmental Report'. The email was copied to others at Cargill, including the in-house lawyers, Ms Arndt and Mr Okoroegbe. It attached the URS environmental report marked 'Privileged and Confidential' and 'Prepared for Allens' for which privilege has been claimed and not challenged.

161 Cargill argues that the email cannot sensibly be severed from its attachment for the purposes of considering whether it is privileged. I do not accept that proposition. For example, a report prepared for the dominant purpose of obtaining legal advice may contain some factual information which is also of interest for some non-legal purpose. Sending an email to non-lawyers forwarding the report and highlighting that particular factual information would not of itself imply it was sent for the dominant purpose of obtaining or giving legal advice. The attachment may retain its privileged status but the email itself may not acquire that protection.

162 In this instance I have viewed Document 19. I am not satisfied it was necessarily prepared for the dominant purpose of obtaining or giving legal advice. The second sentence of the email refers to the contents of the URS report, the first part in general terms and the second part as to specifics. I hold that the email should be produced except for the second part of the second sentence (after the word 'found') which may be redacted.

163 Documents 28 and 29 both appear to be draft versions of the same URS report. Document 28 is titled '4317784_Project Hawk_Report_REV0' dated 6 July 2013, and Document 29 is titled 'URS Project Hawk Report 7-11-2013 Draft' dated 11 July 2013.

164 Document 28 was an attachment to an email marked 'confidential and privileged' from Mr MacLeod (senior lawyer at Cargill) to the Environment, Health and Safety Manager at Cargill. The draft URS report itself denotes, on its face, that it was prepared by URS for Allens. Other iterations of it have already been held to be privileged. Accordingly, Cargill argues that the email and its attachment were created and sent for the dominant purpose of Cargill obtaining legal advice. I agree. Document 28 is privileged from production.

165 Document 29 bears the same title and date as Goldman Sachs Documents 123 and 208 which I have found were privileged, and it appears to be a duplicate of the same documents.[77] I therefore find it is privileged in its own right. But it was also an attachment to another email by Mr MacLeod to Environment, Health and Safety personnel at Cargill. No challenge is mounted to the privilege claimed over the email attaching the draft report. Inspection of the host email confirms that the purpose for incorporating the draft as an attachment in the communication was in accord with the purpose of the email itself. Applying the Propend principle in accordance with my conclusions, I find that Document 29 is protected by legal professional privilege

166 Document 11 is titled 'Project Hawk-Material Due Diligence Issues Register-Legal Regulatory' and dated 18 June 2013. The author is not stated. It was an attachment to an email from Mr Clarke to Ms Arndt and Mr Okoroegbe, copied to another addressee. A claim for privilege has been made in respect of that host email and it is not challenged. I therefore treat the host email as privileged. Cargill's evidence is that the host email and this attachment were created and sent for the dominant purpose of Cargill's external and in-house lawyers providing and obtaining legal advice in relation to reviewing due diligence questions.[78]

167 Inspection of the host email confirms that the purpose for incorporating that attachment in the communication was in accord with the purpose of the email itself. Applying the Propend principle in accordance with my conclusions, I find that Document 11 is protected by legal professional privilege.

168 Documents 20-27 share the same characteristic as Document 11 in that there is no evidence provided as to their authorship. Accordingly, Viterra argues that the lack of identity of the maker of each document means there is a lack of a basic requirement to establish the dominant purpose for the creation of each document.[79] Additionally, Viterra argues that in respect of:

(a) Documents 21 and 26, privilege is claimed over the whole of each document, whereas Cargill only asserts that certain pages of them were prepared for the purpose of seeking or providing legal advice;

(b) Documents 22 and 27, Cargill provides nothing more than vague and formulaic words as to the asserted dominant purpose; and

(c) Documents 20, 23, 24 and 25, Cargill asserts that the documents contain legal advice, but does not provide 'focused and specific evidence' as to the dominant purpose for which each was created.

169 Importantly, however, each of these eight documents is an attachment to a confidential email communication from Cargill's in-house lawyers to either other in-house lawyers or its external lawyers over which privilege has been claimed and not challenged. Accordingly, I hold that each of the emails is treated as a privileged communication sent for the dominant purpose of obtaining or giving legal advice. Inspection of the host emails confirms that the purpose for incorporating each attachment in the particular communication was in accord with the purpose of the email itself. Applying the Propend principle in accordance with my conclusions, I find that Documents 20-27 are protected by legal professional privilege.

170 Aside from that basis for legal professional privilege, Cargill asserts privilege for some of these documents on other bases. I will deal with them briefly:

(a) Document 20 is titled 'Project Hawk-Material Due Diligence Issues Register-Legal Regulatory'. Cargill's evidence is that it is marked as a 'draft'. Other than saying that the attachment, along with its host email, was created and sent for the dominant purpose of the provision of legal advice in relation to questions and issues in relation to the possible acquisition of JWM,[80] Cargill has provided no further evidence about this document. The combined schedule categorises it as a 'material issues register - legal regulatory'. An inspection of the document itself indicates that that category label is appropriate. However, without further evidence about the authorship of this particular document and the purpose of the provision of the information contained in it, it is not possible for me to determine simply upon an inspection of it that the dominant purpose for its creation was the giving or obtaining of legal advice. Apart from the primary basis for privilege referred to above, on the evidence available I would not be satisfied that Document 20 should be privileged.

(b) Document 21 is an iterative spreadsheet of the type described by Ms McCudden titled 'DD - Workstreams - Questions - Issues - Progress - 072613 - Updated'. It is dated 17 September 2013. Other than Cargill saying that the document with its host email were created and sent for the dominant purpose of in-house lawyers providing Allens information to obtain legal advice in relation to the upcoming completion of the acquisition of JWM,[81] there is no other evidence about the creation of Document 21. An inspection of it reveals that parts of it were probably created for the dominant purpose of obtaining or giving legal advice, but not the whole. Apart from the primary basis for conferring privilege on the whole document, I would have held Document 21 was privileged only to the extent of those parts that could be identified as setting out legal advice or issues (or draft lists of issues and questions) requiring legal advice.

(c) Document 22 is a spreadsheet dated 17 September 2013 and titled 'Project Ballarat-Q & A Export (26 July 13)- Snapshot'. Cargill gives no different evidence concerning Document 22 as it did for Document 21. Both were attached to the same privileged email. Apart from the primary basis for privilege over the whole document, like Document 21, inspection of Document 22 would otherwise lead me only to allow privilege in respect of parts of it.

(d) Document 23 is titled 'Project Hawk-Material Due Diligence Issues Register-Legal Regulatory-Compare' and is dated 20 July 2013. Apart from Cargill's evidence that this document and its host email were created and sent for the dominant purpose of Cargill obtaining and providing legal advice in relation to the possible acquisition of JWM,[82] there is no evidence about the circumstances of this document's creation. Inspection of it reveals it is another iteration of Document 20 and my conclusions about that document equally apply to this one.

(e) Document 24 has the same description and was attached to the same host email as Documents 23, and inspection of it reveals that it appears to be another iteration of the same document as Documents 20 and 23. My conclusions in relation to those documents apply equally to Document 24.

(f) Document 25 has the same title as Documents 23 and 24 but otherwise Cargill has given little evidence about this document beyond it being an attachment to a host email for which privilege is not challenged. My conclusions in relation to Documents 20, 23 and 24 equally apply to Document 25.

(g) Document 26 is a spreadsheet titled 'DD - Workstreams - Questions - Issues - Progress - 072613 - Updated' and is dated 28 August 2013. By its description it appears to be an earlier iteration of Document 21. Other than saying that this document (along with Document 27) was an attachment to a host email sent by in-house lawyers to others in the in-house legal team for the dominant purpose of those legal advisers receiving further information so as to provide legal advice in relation to the completion of the acquisition of JWM,[83] no other evidence is given about the circumstances of the creation of this document. An inspection of it reveals that parts of it were probably created for the dominant purpose of obtaining or giving legal advice, but not the whole. Apart from the primary basis for conferring privilege on the whole document, I would have held Document 26was privileged only to the extent of those parts that could be identified as setting out legal advice or issues (or draft lists of issues and questions) requiring legal advice.

(h) Document 27 is titled 'Project Ballarat-Q & A Export (26 July 2013) Snapshot' and is dated 28 August 2013. From its title it appears to be an earlier iteration of Document 22. It is another attachment to the same host email to which Document 26 was attached. Cargill gives no further evidence about Document 27 than it gave about Document 26. Apart from the primary basis for conferring privilege on the whole document, I would have held Document 27 was privileged only to the extent of those parts that could be identified as setting out legal advice or issues (or draft lists of issues and questions) requiring legal advice.

171 Cargill must produce Documents 5 and 19 save for certain parts, which I will indicate to Cargill when I deliver my reasons, that may be redacted and shielded from production.

172 Otherwise, Cargill is not required to produce any part of the remaining Discovered Documents.

[1] The contest regarding the Goldman Sachs Documents was heard on 13 February 2018 and the Discovered Documents were contested at a hearing on 7 March 2018.

[2] A fuller description of the pleaded events is set out in reasons for judgment given in a related application, Cargill Aust Ltd & Ors v Viterra Malt Pty Ltd & Ors (No 7) [2018] VSC 99.

[3] Exhibit CMM3 to the affidavit of Christiana McCudden sworn 19 February 2018 ('McCudden 19 February affidavit').

[4] Cargill pointed out that Viterra discovered about 32,000 documents and claimed privilege over approximately 16,000 documents. Numerical comparisons such as this provide no assistance in resolving individual privilege claims.

[5] With respect to Goldman Sach's documents, 748 were produced on subpoena and, originally, 70 claims for privilege were made.

[6] The parties agreed to a category called 'Do not press' for some documents otherwise claimed to be privileged. In respect of those documents, a document could be disclosed (either wholly or in redacted form) on the basis that its disclosure could not be used to assert waiver of privilege in relation to associated privileged documents or communications.

[7] Commissioner of Australian Federal Police v Propend Finance (1997) 188 CLR 501 ('Propend').

[8] AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 (Young J) ('AWB v Cole').

[9] Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49, [35] (Gleeson CJ, Gaudron and Gummow JJ) ('Esso').

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

[12] AWB v Cole [2006] FCA 1234; (2006) 155 FCR 30, [44(2)].

[17] Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd [2014] FCA 796 [38]-[39] (Beach J) ('Asahi').

[18] Slea Pty Ltd v Connective Services Pty Ltd [2017] VSC 361 [23] (Almond J); R v Sharp [2003] NSWSC 1117; (2003) 143 A Crim R, 344 [37] (Howie J); R v Braham and Mason [1976] VicRp 56; [1976] VR 547 at 549 (Lush J).

[19] AWB v Cole [2006] FCA 1234; (2006) 155 FCR 30, [47].

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

[22] Asahi [2014] FCA 796 (1 August 2014), [38]-[44] (Beach J), citing Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 ('Pratt'), [41]-[47] (Finn J) and [105]-[107] (Stone J). See also Waugh v British Railway Board [1979] UKHL 2; [1980] AC 521.

[23] Tabcorp Holdings Ltd v State of Victoria [2013] VSC 302 (13 June 2013) ('Tabcorp'). Leave to appeal Sifris J's decision in Tabcorp was refused in State of Victoria v Tabcorp Holdings Ltd [2013] VSCA 180 (24 July 2013).

[24] Asahi [2014] FCA 796, [29].

[25] Tabcorp [2013] VSC 302, [85], citing Krok v Szaintop Homes Pty Ltd (No 1) [2011] VSC 16 (8 February 2011) (Judd J), [17].

[26] Asahi [2014] FCA 796, [32].

[27] Ibid [40], citing Pratt [2004] FCAFC 122; (2004) 136 FCR 357, [46].

[28] Asahi [2014] FCA 796, [41].

[30] Propend (1997) 188 CLR 501.

[31] Since Propend was decided, the 'sole purpose' test used to determine privilege has been replaced by the 'dominant purpose' test: Esso [1999] HCA 67; (1999) 201 CLR 49.

[32] Propend (1997) 188 CLR 501, 509-510.

[34] See Cross on Evidence, 8th Edition, [25275] in which the author opines that 'no other member of the court [in Propend] commented on the qualification, which must accordingly be regarded as not part of the law'.

[35] AWB Ltd v Cole [2006] FCA 1234; (2006) 155 FCR 30; Shahi v Granger [2011] SADC 18; O'Sullivan v Australian Federal Police [2011] AAT 188.

[36] Conlan v Walker [2011] FCA 347, [20] (Barker J); Dalrymple Park Pty Ltd v Tabe & Lees Pty Ltd (unreported, Supreme Court of Tasmania, 5 December 1997) (Crawford J).

[37] An important aspect of the Propend decision was the High Court's recognition that the doctrine represented an existing balance already struck between competing public interests such that no further balancing exercise was 'either necessary or possible'. On that basis, as Kirby J put it, the task of the Court 'where the doctrine is invoked, concerns solely whether, given its definition, it applies... or not'. See Propend (1997) 188 CLR 501, 511 (Brennan CJ), 563 (Gummow J) and 583 (Kirby J).

[38] AWB v Cole [2006] FCA 1234; (2006) 155 FCR 30, [44(11)] (Young J).

[39] Propend (1997) 188 CLR 501, 571 (Gummow J).

[40] Kamasaee v Commonwealth of Australia (No 2) (LPP Ruling) [2016] VSC 404, [43]-[47].

[41] Desane Properties Pty Limited v State of New South Wales [2018] NSWSC 173, [178]-[180] (Robb J).

[42] Evidence Act 2008 (Vic) ('the Act').

[43] The common law principles apply as s 131A of the Act is limited to circumstances where the person objecting to production and inspection of documents is the person who was required by the 'disclosure requirement' to produce the documents: See, in the context of s 131A of the Evidence Act 1995 (NSW), Singtel Optus Pty Ltd v Weston [2011] NSWSC 1083; (2011) 81 NSWLR 526 [28] (White J), citing State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 [32] (Allsop P, Hodgson JA and Sackville AJA agreeing).

[44] AWB v Cole [2006] FCA 1234; (2006) 155 FCR 30; Asahi [2014] FCA 796.

[45] Evidence Act s 133.

[46] Tabcorp [2013] VSC 302, [97].

[48] Each document had a unique identifying Doc ID from discovery, but was assigned a 'document number' in schedules produced by the parties specifically for the purpose of each privilege dispute. For these applications the documents are identified by reference to the document number assigned for each application. The Schedule to these reasons lists the documents the subject of each application by reference to its assigned document number (#) and its unique Doc ID.

[50] Taken from the affidavit of Sarah Weinberg sworn 23 February 2018, [13]; McCudden 19 February affidavit, [17] and exhibit CMM-3.

[51] Affidavit of Christiana McCudden sworn 5 March 2018, [5]-[6] ('McCudden 5 March affidavit').

[52] That same information is apparent from the parties' schedules.

[53] Kirby v Centro Properties (No 2) [2012] FCA 70, [81] ( Bromberg J); Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357, [103] (Stone J).

[54] AWB v Cole [2006] FCA 1234; (2006) 155 FCR 30, [47].

[57] McCudden 5 March affidavit, [6]-[8] and [10].

[58] Asahi [2014] FCA 796, [72].

[59] [1988] Ch 317, 330 (Taylor LJ).

[60] Asahi [2014] FCA 796, [72].

[61] The summons listed 29 documents but since issue one or other of the parties chose not to press the claim for production or privilege from production in relation to four documents: items 2, 4, 13 and 17. The categories were reflected in a schedule, agreed by the parties, which consolidated information from parties' individual tables and was provided to the court following submissions ('consolidated schedule').

[62] See [85] above.

[63] See [66] above

[64] Items 2, 3, 6-8, 11-12, 14-16, 18, 20-29: See Viterra Written Submission dated 6 March 2018, [7], n 14.

[65] See [41] above.

[66] McCudden affidavit 5 March 2018, [5].

[67] Cargill Written Submissions dated 6 March 2018, [14].

[68] See [127(c)] above.

[69] McCudden affidavit 19 February 2018, [29].

[70] McCudden affidavit 5 March 2018, [7]-[10].

[71] McCudden affidavit 19 February 2018, [45].

[72] McCudden affidavit 19 February 2018, [49].

[73] McCudden affidavit 19 February 2018, [51].

[74] Whiting affidavit 6 February 2018, [33]-[39].

[75] McCudden affidavit 19 February 2018, [35].

[76] McCudden affidavit 19 February 2018, [40]-[41].

[77] See [127(b)] above.

[78] McCudden affidavit 19 February 2018, [43].

[79] See principle at [19(b)] above.

[80] McCudden affidavit 19 February 2018, [57]-[58].

[81] McCudden affidavit 19 February 2018, [60].

[82] McCudden affidavit 19 February 2018, [62].

[83] McCudden affidavit 19 February 2018, [66].