Plaintiff v Defendants

1 This decision concerns an objection by the Defendants to inspection of certain documents produced by Canny Legal Pty Ltd, the Defendants' former solicitors, pursuant to a subpoena dated 19 October 2018 issued by the Plaintiff ('Subpoena').[1] The Defendants object to the Plaintiff inspecting certain documents[2] on the grounds that they are subject to a claim for legal professional privilege.

2 The proceeding relates to whether the parties entered into a binding agreement for the sale and purchase of certain land at Mount Duneed, Victoria ('Property'). The Defendants are the registered proprietors of the Property. The Plaintiff alleges that it entered into a binding agreement on 18 November 2017 to purchase the Property from the Defendants on specified terms, after a written offer made by the Plaintiff was accepted in writing by the Defendants ('Alleged Agreement'). The Plaintiff alleges that the parties then set about performing the Alleged Agreement, including by exchanging drafts of the proposed sale contract ('Sale Contract'). It appears to be common ground that a Sale Contract was not signed by the parties, and the Plaintiff alleges that on or about 7 March 2018 the Defendants informed the Plaintiff that they no longer intended to proceed with the Alleged Agreement. The Defendants deny that the Alleged Agreement is binding and say that there was no intention to be bound until a formal Sale Contract was executed by both parties. The Defendants also say that the Plaintiff was informed prior to 7 March 2018 that the Property would not be sold by them to the Plaintiff.

3 The Subpoena required production to the Prothonotary by 5 November 2018 by Canny Legal of:

All documents in physical or electronic form (including but not limited to correspondence (including emails), electronic calendar invitations, file notes and text messages), for the period commencing 1 January 2017 to date, which concern the engagement of Canny Legal Pty Ltd (ACN 605 560 898) in respect of the sale of [the Property]

4 On 2 November 2018, Canny Legal produced the 'entire original file' of Hill Perkins Lawyers in respect of its former clients, the Defendants ('Hill Perkins File'). When doing so, Canny Legal explained in a letter of that date that the Hill Perkins practice was acquired by Canny Legal on 1 March 2018, and that by that time, the dispute over the sale had already occurred and that Canny Legal opened a new litigious file on or about 19 March 2018. It was the Hill Perkins file in relation to the proposed sale which was produced by Canny Legal, not its own file in respect of the litigation. The Plaintiff's solicitor apparently confirmed that it was the sale file which was sought by the Subpoena and not the litigation file. Canny Legal objected to the Subpoena, including on grounds that the documents may be subject to legal professional privilege, and produced the documents under cover of that objection ('Canny Legal Objection').

5 On 30 October 2018, the Defendants notified the Prothonotary and the Plaintiff that they objected to the inspection of the documents produced by Canny Legal on the grounds of legal professional privilege. The Defendants' solicitor stated that the documents consisted of the Defendants' former solicitor's file and were created for the dominant purpose of the Defendants seeking and receiving legal advice and/or for use in reasonably anticipated proceedings. By the time the Brdar Affidavit was filed, the Defendants' objection on the grounds of legal professional privilege was confined to the 'advice limb', and not the 'litigation limb' ('Defendants' Objection').

6 It was common ground between the parties that the common law principles in respect of legal professional privilege applies. Canny Legal, the "person" to whom the Subpoena was addressed, made an objection to inspection of documents produced in response to the Subpoena. An objection was also made by the Defendants. Canny Legal has taken no further part in the objection process. Section 118 of the Evidence Act 2008 (Vic) applies in situations where it is the "person" who is required to produce documents under a subpoena who is the "person" who objects to them. Since it is the Defendants' Objection which is the subject of this hearing, the Evidence Act 2008 (Vic) does not apply and it is the common law which applies.[3]

7 The parties were in general agreement about the applicable principles in respect of legal professional privilege: it was only in their application to this case that the parties differed.

8 The Defendants referred to IOOF Holdings Ltd v Maurice Blackburn Pty Ltd,[4] in which Elliott J summarised the principles governing client legal privilege claims. I have re-produced those elements relevant to the Defendants' Objection below (omitting citations):[5]

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

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

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

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

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

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

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

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

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

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

...

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

9 The Plaintiff referred to a different case to describe the relevant principles: that of Beach J in Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4).[6] While IOOF concerned privilege claims made under the Evidence Act 2008 (Vic) and Asahi concerned privilege claims made under the common law, the summary of the principles in each instance was similarly expressed.

10 The Defendants' rely on the Brdar Affidavit. Jozo Brdar (commonly referred to as Joe: without intending any disrespect, I will also refer to him as Joe in these reasons) is the Defendants' son.[7] He deposes that English is not his parents' first language and that he was extensively involved on behalf of his parents in the proposed sale of the Property.[8]

11 Joe states that he engaged Hill Perkins in respect of the potential sale on behalf of his parents, and that they provided advice in relation to the Plaintiff's proposal to purchase the Property.[9] Joe says that he, either in conjunction with his father or alone, provided instructions to Hill Perkins (as directed by his parents) and received advice and documents from them.[10] He says that he discussed the legal advice and documents with his parents.[11]

12 Joe's dealings with Hill Perkins were primarily with Jade Macgregor, a lawyer, and Katherine Taylor, a law clerk. David Perkins had overall supervision of the matter but Joe does not recall speaking with him directly about it.[12]

13 Joe says that he is informed that Mr Perkins has retired. He says that Canny Legal has made enquiries of Mr Perkins as to whether he will provide assistance in respect of this matter but as at the time of his affidavit there had been no response. He says that Ms Macgregor no longer works for Canny Legal and he and the Defendants' solicitors have not found contact details for her. He also says that Ms Taylor has refused to provide assistance regarding the application.[13]

14 Joe goes on to say that as the persons responsible for preparing the documents produced in response to the Subpoena are not available to give evidence, he has reviewed the documents for the purpose of seeking to explain the basis for the claim for privilege in respect of them. He expressly states that in doing so, he does not waive the privilege subsisting in the documents.[14]

15 Joe then gives detailed evidence in respect of each of the documents contained in the List. He says that to the best of his recollection and understanding, the purpose of the communications in those documents was as he described each of them separately in the Brdar Affidavit.[15] In the next several paragraphs, I set out my summary of Joe's descriptions.

16 Document 2 is a chain of emails between Joe and Ms Taylor dated from 16 February to 1 March 2018. Ms Taylor had emailed him to obtain further instructions from him and his parents regarding the potential sale of the Property. The email chain attached draft correspondence to the Plaintiff's then solicitor for review, which is repeated as Documents 1 and 3 in the List. The purpose of these emails and review of draft correspondence was to obtain the Defendants' instructions regarding Hill Perkins' advice about the appropriate legal steps to protect and advance their interests.

17 In general terms, Documents 4, 6, 8, 9, 11, 12, and 13 are described as handwritten file notes made of discussions between Hill Perkins and Joe and, in the case of Documents 12 and 13, between Hill Perkins, Joe and the First Defendant. Of these:

(a) Document 4 is dated 12 February 2018 and is a discussion between Joe and Hill Perkins;

(b) Document 6 is dated 2 February 2018 and is a discussion between Joe and Hill Perkins;

(c) Document 8 is dated 2 February 2018 and is a discussion between Joe and Hill Perkins;

(d) Document 8 is dated 21 December 2017 and is a discussion between Joe and Hill Perkins;

(e) Document 9 is dated 14 December 2017 and is a discussion between Joe and Hill Perkins;

(f) Document 11 is dated 30 November 2017 and is a discussion between Joe and his father and Hill Perkins;

(g) Document 12 is dated 28 November 2017 and is a discussion between Joe and Hill Perkins; and

(h) Document 13 is dated 28 November 2017 and is handwritten notes of separate discussions between Joe and Hill Perkins and between Hill Perkins and Michael Bevan. Mr Bevan is a real estate agent engaged by the Defendants in respect of the Property. Joe says that the purpose of Hill Perkins' discussion with Mr Bevan appears to be for them to obtain information from Mr Bevan for the purposes of advising the Defendants about the appropriate legal steps to protect and advance their interests.

18 In relation to each of these file notes, the person from Hill Perkins is not identified. Joe says that on each of the dates of the file notes, he was speaking with representatives of Hill Perkins to obtain legal advice regarding the Defendants' rights and obligations in relation to the potential sale of the Property. He says that the purpose of these discussions was to advise Hill Perkins as to the Defendants' situation and their instructions and to obtain guidance from Hill Perkins about the appropriate legal steps necessary to protect and advance the Defendants' interests.

19 Document 5 is an email from Ms Taylor to Joe dated 9 February 2018. He says the purpose of the email was to obtain further instructions and documents from the Defendants in relation to matters discussed at a meeting he had attended with representatives of the Plaintiff on 2 February 2018. Joe says that the email contains advice about the appropriate legal steps necessary to protect and advance the Defendants' interests.

20 Document 7 is an email from Kym Scherf, an accountant with the Canny Group, to Ms Macgregor dated 13 December 2017, copied to Joe. Joe says that the purpose of the email was to provide GST related information to Ms Macgregor in order for her to give advice to the Defendants regarding GST issues.

21 Document 10 is an email from Ms Taylor to Joe dated 11 December 2017, the purpose of which was to obtain the Defendants' instructions regarding GST issues in order to provide advice in respect of that issue.

22 Document 14 is an email from Ms Taylor to Joe dated 23 November 2017. It refers to two attachments which were not attached to the copy of the email produced by Canny Legal. Joe believes that, from their description, the attachments are the attachment to Document 18 (costs disclosure) and Document 21 prior to handwritten comments being added. Joe says that the purpose of this email was to provide an estimate of the possible costs which may be incurred by the Defendants in respect of Hill Perkins' fees and legal advice as to the specific work which may need to be undertaken by them; and to obtain instructions from the Defendants in relation to the potential sale of the Land in order to provide legal advice and prepare documents in connection with it.

23 Document 15 is an email from Joe to Ms Macgregor dated 22 November 2017. The purpose of this email was to formally engage the services of Hill Perkins on behalf of the Defendants in relation to the potential sale of the Property and instruct them to provide related legal advice.

24 Document 16 is a handwritten note of a discussion between Hill Perkins and Joe on 9 November 2017. Joe says that the purpose of the discussion was to discuss the potential sale of the Property with a view to engaging Hill Perkins to act on behalf of the Defendants in connection with any sale.

25 Document 17 is a copy of a letter signed by the Defendants on 18 November 2017 with handwritten notations. Joe believes a copy of the letter was given to Hill Perkins and the notations were made by a representative of Hill Perkins for the purpose of them providing legal advice to the Defendants in respect of the document.

26 Document 18 is said to appear to be an email from Ms Taylor to Joe. He says it is undated and has a handwritten annotation. Joe believes it is a draft of the email which was sent to him and appears as Document 14 in the List.

27 Documents 19 and 20 are said to appear to be copies of a draft contract of sale in respect of the Property with handwritten annotations. Joe believes the copies and the notations were made by Hill Perkins in order to provide legal advice to the Defendants in respect of the proposed sale.

28 Document 21 is a document titled "Questionnaire to gather information for vendor's statement" with handwritten notations which were made by Joe. The purpose was to provide information to Hill Perkins in order for them to provide legal advice to the Defendants and draft relevant documents.

29 It is convenient to analyse the parties' positions by reference to the key issues raised during the course of written and oral submissions, and then address specific documents to the extent that is necessary.

(a) The adequacy of the Defendants' evidence in establishing the privilege claim;

(b) Whether certain documents should be partially redacted for privilege and then produced in that form; and

(c) The position in relation to particular categories of documents.

Adequacy of the Defendants' evidence in establishing their privilege claim

31 The Defendants accept that the onus is on them to establish their privilege claim. They say that the documents were created in the context of a lawyer-client relationship and were for the dominant purpose of providing or obtaining legal advice. The fact that the documents or communications did not generally pass directly between the clients (i.e. the Defendants) and the lawyer (i.e. Hill Perkins) but through Joe does not alter the dominant purpose of the communications. The Brdar Affidavit sets out the role which Joe played, in that he engaged Hill Perkins on behalf of the Defendants and provided instructions and received the legal advice, which he discussed with his parents.

32 The Defendants also say that the nature of the advice to which privilege may attach is not restricted to formal advice as to the law, as it may extend to advice as to what should prudently and sensibly be done in the relevant legal framework.[16] Here, the Hill Perkins File was created for the Defendants seeking such advice regarding the Property.

33 The Defendants submit that the Brdar Affidavit provides a focused and specific explanation of the claims for privilege in respect of each of the documents on the List. Joe was the recipient of, or participant in, many of the subject communications, and the "authors" of the documents on the Hill Perkins File are either unwilling or unable to give evidence regarding those documents.

34 Further, they submit that the description of the subject documents in the Brdar Affidavit strikes an appropriate balance between the competing considerations identified in Hodgson v Amcor Ltd; Amcor Ltd v Barnes (No 2),[17] in which Vickery J stated:[18]

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

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

35 The Plaintiff submits that the Brdar Affidavit is manifestly inadequate, as:

(a) It fails to identify the period of time over which Joe engaged Hill Perkins to act on the Defendants' behalf in respect of the transaction;

(b) It relies on a formulaic approach to support the claim of privilege without descending to particulars relevant to the precise content of specific documents; and

(c) Joe cannot give admissible evidence about what was in the mind of a lawyer or law clerk at the time of making annotations on documents nor, in particular, the purpose for which the annotations were made.

36 By way of example, the Plaintiff points to the description given in the Brdar Affidavit for Document 4.[19] It says that this is an example of where the author of the handwritten file note cannot be identified and there is no admissible evidence from the author of the document. The plaintiff says that the surrounding circumstances are deposed to in the broadest of terms, there is no evidence given about the content of the file note and the advice given or obtained, and it is only the communications within the document that are protected.

37 In correspondence between its solicitors and the Defendants' solicitors, the Plaintiff had earlier asserted that many of the documents could not be privileged as Joe was not the client. That position was no longer pressed by the Plaintiff, as it accepted that the explanation of Joe's role as set out in the Brdar Affidavit meant that privilege could attach to the documents.

38 The List itself is not adequate or sufficient to establish the Defendants' privilege claim. The List simply records the date of each document, a brief description (e.g. file note of telephone attendance on Joe by Hill Perkins) and the basis of the claim. In all bar one instance, the basis of the claim is 'document created for the purpose of providing legal advice'. In one instance, it is 'document created for the purpose of obtaining and providing legal advice'. On its own, that would be a formulaic response lacking sufficient particulars to establish the privilege claim. Neither party seemed to see the List on its own as being sufficient.

39 However, the Brdar Affidavit goes further than the List. I accept the submissions made by the Defendants in relation to this issue. There is sufficient information in that affidavit, both generally and in relation to each document, to provide evidence to justify the Defendants' privilege claim. To require the Defendants to go further than they have done would, in my view, require them to cross into the territory warned of by Vickery J in Hodgson v Amcor.[20] It cannot be right that in order to establish a claim to privilege a party has to reveal the content of the very thing which is privileged.

40 In the circumstances of this case, I do not see it as fatal to the Defendants' claim that in most instances the author of the document has not given evidence of their purpose in creating it. The Defendants attempted to obtain that direct evidence but were not able to do so. As summarised in IOOF, the dominant purpose is determined objectively, having regard to the evidence, the nature of the document and the parties' submissions, although evidence of the subjective purpose of the person making the communication is relevant.[21] Given that all of the documents emanated from the Hill Perkins File, for the reasons referred to below,[22] I accept that a review of the documents in a solicitor's file by someone with knowledge of the transaction, such as Joe (properly advised), can be sufficient to ascertain the dominant purpose.

41 Taking the example of Document 4,[23] I do not accept the Plaintiff's submission that because there is no evidence given about the content of the file note and the advice given or obtained, it cannot be privileged. How can that be revealed without revealing the very thing which is privileged?

42 Both parties submitted that if I needed to, I could exercise the discretion given to the Court to inspect the documents so as to determine the privilege claim. The Defendants submitted that I did not need to, as the Court can be satisfied on the material contained in the Brdar Affidavit, but they had no objection to me inspecting the documents if I considered it to be necessary.

43 On the whole, I am satisfied that it is not necessary for me to inspect all of the documents in the List, although there are a small number of documents which I considered it appropriate to inspect in order to finally determine the privilege claim, which I will discuss below when considering particular documents.

Whether certain documents should be partially redacted for privilege and then produced in that form

44 In many instances, the Plaintiff says that the Defendants do not identify any part of a document which may sensibly be redacted, as it cannot be right that the whole of the document is privileged. In this regard, the Plaintiff points especially to the draft Sale Contracts with handwritten annotations (Documents 19 and 20), saying that the draft Sale Contract itself was not created for the dominant purpose of providing legal advice. There are a number of other documents where the Plaintiff makes a similar complaint, such as Documents 5, 14, 15, 18 and 21. In relation to the file notes (Documents 4, 6, 8, 9, 11, 12, 13 and 16), the Plaintiff submits that the privilege claim does not distinguish between any part of each file note in respect of which privilege is asserted, and any parts that are not privileged. It says that if there is a basis for the redaction of any part (rather than the whole) of each document, that has not been adequately identified.

45 The Plaintiff says that it has raised this issue of redaction because the Defendants have not discharged their onus to establish their privilege claim.

46 In summarising the general principles regarding privilege, the Plaintiff referred to Asahi. Amongst other things, in Asahi Beach J stated the following:[24]

... it may be that the entirety of a document may be privileged. Alternatively, it may be that only part of a document meets the dominant purpose. A particular document may contain or consist of many communications, such as an email chain, only some of which were made for the requisite dominant purpose.

... a document may be privileged to the extent to which it records a privileged communication, even if the document itself would not satisfy the dominant purpose test.

47 This passage was not referred to by the Plaintiff when making submissions as to potential redactions of documents. It is worth noting that these are made as two different points in Asahi.

48 The Defendants say that they have not identified parts of documents which may be redacted, as they claim privilege over the whole of each of the documents contained in the List. They also say that the Plaintiff seeks to impose an obligation on the Defendants to identify potential redactions, where that is not something they are required to do. They say it is not as if the subject documents are ones which typically contain a range of items, some of which may be privileged and some not (e.g. Board papers or minutes).

49 The Defendants rely on a decision of Anderson J of the Supreme Court of Western Australia, Dalleagles Pty Ltd v Australian Securities Commission.[25] In that case, the Australian Securities Commission had served notices requiring the production of documents which included a large number of documents and files which had been emanated from the files of the party's solicitors. Those documents consisted of original and copy memoranda, hand written notes, draft agreements, draft instruments of security, a draft companies form and a letter. The draft instruments and agreements had been prepared by the solicitor who had acted for one of the parties.

50 It is worth referring to Dalleagles in some detail, and I have extracted the main propositions relied on by the Defendants below:

(1) It is the case that whenever a lay client gives instructions to a legal practitioner to perform specialist legal services involving the exercise of professional skill, there is imposed on the solicitor a duty to give any advice reasonably necessary to protect the client's interests in the transaction whether expressly requested or not.[26]

(2) It is not a large step from that position to say that whenever a client gives instructions to his solicitor there is assumed to be a request for advice. In my opinion, discourse between solicitor and client with reference to the transactions covered by those instructions, that is, professional discourse in a professional capacity, should be regarded as prima facie for the purpose of giving and receiving and advice. This would apply to any communication that is on its face a communication of a professional nature from the solicitor to the client or his agent touching the subject matter of the solicitor's engagement and any communication from the client to the solicitor in connection with that engagement. Only if the rule is applied in that way can the policy of it be carried out and its object practically fulfilled.[27]

(3) What is protected, of course, is that which is communicated between solicitor and client. It is the communication that is privileged. But this is not to say that material that is not literally a communication or manifestly the record of a communication is never protected. There are many instances of protection being extended to such material. The examples of the draft letter that never leaves the solicitor's office, the draft agreement and the draft statement of claim have already been referred to. The reason why such material is protected is often stated to be that disclosure of it will, or will tend to, reveal the privileged communication. Thus a note made by a solicitor of a conference with his client will be privileged in so far as it is a record of the communication from the client (that communication being privileged) but also in so far as it might contain notes of the solicitor's own thoughts in regard to the matters communicated to him. Protections is afforded in the latter case on the ground that disclosure of that material might tend to reveal what had been communicated to the solicitor. There is much in the cases to support the view that this is the true basis upon which draft agreements, draft letters, draft pleadings and the like have long been accepted as privileged; that it is not so much because they are themselves "advice" or "communication" but because they will, if disclosed, reveal, or tend to reveal, the content of privileged communications. Material created by the solicitor in fulfilment of his engagement 'is the result of the solicitor's mind working upon and acting as professional adviser with reference to' material communicated to him confidentially in his professional capacity and, as such, will by its very nature tend to reveal the content of the communication in response to which it had been prepared.[28]

(4) [The solicitor and the party's agent] were communicating one with the other solely[29] for the purpose of [the agent] instructing [the solicitor] and [the solicitor] acting on such instructions so that there would be brought into existence a set of commercial instruments calculated to achieve the plaintiffs' commercial objectives in a legally enforceable manner. ... That being the purpose of the communications, they were, in my view, in the broader sense, communications solely for the purpose of obtaining legal advice or assistance. There is nothing about them to suggest that they were other than confidential communications or that purpose.[30]

51 Given that the Defendants claim privilege over the whole of each document contained in the List, I do not accept the Plaintiff's submission that the privilege claim should be rejected because the Defendants have not identified which parts of the documents should be redacted.

52 In my view, much of the analysis set out in Dalleagles is particularly apposite here. The nature of the documents contained in the List is that they are all drawn from the Hill Perkins File, where Hill Perkins had been engaged to provide legal advice and legal services to the Defendants in relation to the proposed sale of the Property.

53 Dalleagles has been applied in numerous cases, including Asahi.[31] In the latter case, Beach J was considering draft letters or agreements where numerous lawyers and non-lawyers had had input into each finalised draft. His Honour said that unless for a specific draft something can be pointed to such as 'lawyer only' mark ups, it could not be said, without more precise detail, that the whole draft is privileged. Beach J contrasted that with the case where 'the particular communications ... are draft agreements prepared by a lawyer or the draft agreements are prepared by others but with a lawyer's handwritten observations, notes and cancellations thereon, which are privileged', referring to Dalleagles.[32]

54 In my view, the nature of the documents, all emanating from the Hill Perkins File, along with the considerations just referred to, leads to a conclusion that the documents are privileged (subject to what I have to say below about particular documents or categories of documents) and that redaction is not required.

55 To the extent to which particular documents or categories of documents were discussed during the course of submissions are not covered by the above discussion, or the basis for the parties' positions is not covered above, I will deal with those in this section. Where I have not referred to particular documents, it is because I am satisfied for the reasons already set out above that the documents are privileged.

56 The Plaintiff submits that the evidence relied upon by the Defendants in support of the privilege claims in respect of the file notes is unacceptably general. For the reasons already outlined, I do not accept this submission.

57 The Plaintiff also makes the same complaint as outlined above in respect of redacting parts of the file notes so that they are disclosed except for the portions which record advice sought or obtained. I do not accept this submission.

58 It is artificial in the least to think that a lawyer's file note of a conversation with the client (or the client's agent) should be redacted so that those parts of the conversation which do not specifically seek or provide legal advice are disclosed. Such a proposition is unnecessarily restrictive and narrow, and without support in the authorities. As Anderson J said in Dalleagles, 'discourse between solicitor and client with reference to the transactions covered by those instructions, that is, professional discourse in a professional capacity, should be regarded as prima facie for the purpose of giving and receiving and advice'.[33]

59 In respect of Document 13, the Plaintiff submits that a note of a conversation between an unidentified person from Hill Perkins and the Defendants' real estate agent, where there is no suggestion that the file note records or evidences the giving of legal advice, is not privileged. I do not accept this submission: where the lawyer is obtaining information from the client's agent so as to provide legal advice to the client, that will be subject to legal professional privilege.

60 In respect of Document 16, the Plaintiff submits that a file note made by an unidentified person recording the possible future engagement of Hill Perkins to act on the Defendants' behalf, where the Brdar Affidavit does not suggest that it records any legal advice sought or obtained, cannot be privileged. I have formed the view that for the purposes of determining whether this document is privileged, I need to inspect it. I have done so, and am satisfied that it is privileged. Further, I do not regard it as significant that this file note pre-dates the formal retainer of Hill Perkins, as they were formally retained a short time later in respect of the same matter as is the subject of the file note.

Draft Sale Contracts with handwritten annotations

61 For the reasons already discussed, draft Sale Contracts in the Hill Perkins File which contain handwritten notations made by Hill Perkins personnel are prima facie privileged.[34] I am also satisfied, for the reasons set out above, that they do not require redaction.

62 The Plaintiff also relies on other arguments to say that the Draft Sale Contracts are not privileged. It says that the Court cannot be satisfied as to whether the drafts were prepared by Hill Perkins; whether the drafts are two copies of the same version of the document or two different versions; and whether the annotations are identical. The Defendants say that none of this matters: the draft contracts were on the solicitor's file and contain handwritten notations, and it does not matter whether the drafts are identical or not. I agree: the drafts are either privileged or they are not, and these matters do not assist with determining that question.

63 The Plaintiff also says that the Court cannot be satisfied whether the annotations relate in any way to the giving of legal advice, let alone whether they were made for that dominant purpose. The Defendants again say that the drafts were on the solicitor's file, and it is difficult to conceive of what other purpose they could relate to. Again, I agree. I also note the comments of Beach J in Asahi, as already referred to in paragraph 53 above.

64 In addition, the Plaintiff says that it is common ground that draft Sale Contracts were circulated between the parties. It is said that if the draft contracts or their annotations (i.e. Documents 19 and 20 in the List) reflect instructions to amend or settle draft documents which were later circulated, a matter which cannot be gleaned from the evidence, then the privilege in respect of any instructions given has been waived. In this respect, the Plaintiff relies on Conlon v Conlons Ltd,[35] quoted with approval in Begley & Anor v Baxters Quarries Pty Ltd & Anor (Privilege).[36]

65 I do not regard Conlon as authority for the proposition as articulated by the Plaintiff. That case concerned a plaintiff's refusal to answer interrogatories as to whether he had authorised his solicitors to negotiate for the settlement of his claim and whether he had authorised them to offer terms of settlement, in the context where the plaintiff contended that his claim had been settled by his solicitors without his authority. The plaintiff refused to answer the interrogatories, contended that they were inquiries as to communications passing between him and his solicitors confidentially and were therefore privileged. There, the Court held that the inquiry was whether the plaintiff did or did not authorise his solicitor to write certain letters, and was not seeking disclosure of anything that the solicitors may have said to the plaintiff in regard to his claim generally or by way of giving advice as to prospects.

66 In Begley, the document in question was a draft letter from one party's solicitor to the other party's solicitor which contained handwritten annotations. After referring to Conlon, it was said in Begley that the handwriting did not seek legal advice but rather settled the draft letter addressed to the other party's solicitor as the content was disclosed or contained instructions which the client instructed his solicitor to repeat to the other side.

67 Even if Begley would otherwise apply in this instance, for the reasons I will now set out I do not need to decide that question. In this case I have no evidence to establish whether the draft Sale Contracts or the handwritten annotations were subsequently disclosed by the Defendants to the Plaintiff in subsequently circulated drafts or whether they contained instructions which the Defendants instructed be repeated to the Plaintiff. I have no evidence of what draft Sale Contracts were subsequently circulated. The Plaintiff says as much in its submission, but appears to say that as a criticism of the Defendants. If that be the case, then it misunderstands where the onus lies in this regard.

68 In Zentai v Honourable Brendan O'Connor (No 2),[37] the question of onus when it comes to waiver of privilege was put succinctly as follows:

Whereas the onus of establishing legal professional privilege is upon the person claiming the privilege, the onus of proof in relation to waiver lies on the person asserting that the privilege has been waived.

69 Accordingly, it was for the Plaintiff to establish that the Defendants had waived privilege in respect of Documents 19 and 20, an onus which it has not discharged.

70 Document 21 is a questionnaire to gather information for a vendor's statement with Joe's handwritten annotations, which he says he made so as to provide information to Hill Perkins for them to provide legal advice to the Defendants and draft relevant documents.

71 The Plaintiff makes the same submission as to waiver as it made in respect of Documents 19 and 20. For the same reasons as set out above, the Plaintiff has not made good that submission.

72 I note that the Plaintiff's submissions as to potential redactions of this document have already been rejected, for the reasons set out above.

73 The Plaintiff makes similar submissions as to waiver in respect of Documents 1, 2 and 3. For the same reasons as set out above, the Plaintiff has not made good that submission.

74 In relation to Document 7, GST related information is provided by an accountant to the Defendants' solicitor, copied to Joe, which he says was provided for the purpose of the solicitor giving advice to the Defendants on GST issues. There is no suggestion that the information was provided other than on a confidential basis, and it was being provided, albeit by a third party, for the purpose of Ms Macgregor providing legal advice.[38] I am satisfied that this document is privileged.

75 The Plaintiff submits, in respect of cost disclosure statements, that it is settled law that a costs agreement between solicitor and client that is absent material that expressly or impliedly contains legal advice cannot be privileged.[39] I accept that proposition. The Plaintiff goes on to say that a mere description of work which may in future be performed is not properly characterised as the giving of legal advice.

76 The Defendants submit that cost disclosure statements may be privileged, depending upon their content. They say that it depends upon how the work to be done is described. By way of example, they say that if it is described as "can we get out of the contract", then that would attract privilege. They say that even if it does not say that, it is still privileged, as what the Defendants engaged lawyers for is privileged because it goes to the scope of the advice. No authorities were cited for that proposition.

77 The Brdar Affidavit for these items (in particular, Document 14), describes the purpose as to '[p]rovide an estimate of the possible costs which may be incurred by [the Defendants] in respect of [Hill Perkins], and legal advice as to the specific work which may need to be undertaken by them'.[40] The first of these purposes is not one which is for the dominant purpose of giving or receiving legal advice. The second of these may be. However, there is nothing in the Brdar Affidavit to assist me in establishing which of the two purposes is the dominant purpose.

78 Given that cost disclosure statements are not prima facie privileged, and in light of the issues identified in the previous paragraph in respect of Document 14, in my view it was necessary for me to inspect documents falling within this category.

79 I have inspected Document 14 and there is nothing about that document, an email dated 23 November 2017 from Ms Taylor to Joe, which is privileged. While the email itself appears to attach items, in the form produced by Canny Legal, there are no attachments to the email.

80 Document 18 is a draft of the email contained at Document 14 with a handwritten notation. There is nothing about the email which is privileged. Produced with the email as part of Document 18 is a costs disclosure statement. I have inspected that document and it describes the work to be done in general terms which would be typical of any sale of land. I do not consider this document to be privileged.

81 For the above reasons, the Plaintiff is entitled to inspect Documents 14 and 18 (including the cost disclosure statement produced with Document 18) contained in the List, as these documents are not privileged.

82 The Plaintiff is not entitled to inspect the other documents contained in the List, as the Defendants have established their claim to legal professional privilege over those documents.

83 I will hear the parties as to the appropriate form of orders and as to costs.

[1] The hearing and determination of the Defendants' objection was referred to me on the Court's own motion, pursuant to orders made under r 84.03 of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules').

[2] Pursuant to orders made on 16 January 2019, a regime was established whereby the Defendants inspected the documents produced by Canny Legal and provided a list to the Plaintiff setting out those documents which remained subject to a claim of legal professional privilege ('List'): see Exhibit JB-1 to the affidavit of Jozo Brdar affirmed 15 February 2019 ('Brdar Affidavit'). The List contains 21 documents and is a subset of the documents produced in response to the Subpoena: I understand the documents produced which are not on the List have already been made available to the Plaintiff for inspection.

[3] See Alphington Developments Pty Ltd v Amcor Limited (No 2) [2018] VSC 293, [22]-[27]; Cargill Aust Ltd & Ors v Viterra Malt Pty Ltd & Ors (No 8) [2018] VSC 193, [42].

[4] [2016] VSC 311 ('IOOF').

[6] [2014] FCA 796, [27]-[36] ('Asahi').

[15] At [12] of the Brdar Affidavit, Joe separately describes each document. In these reasons, I have attempted to summarise those descriptions.

[16] IOOF, [47(9)]; Banksia Securities Limited v The Trust Company [2017] VSC 583, [53].

[17] [2011] VSC 204 ('Hodgson v Amcor').

[19] See paragraph 17(a) above.

[21] IOOF, [47(5)]; see paragraph 8 above.

[22] See paragraphs 50 to 58 below.

[23] See paragraph 36 above.

[25] (1991) 6 ACSR 498 ('Dalleagles').

[26] Dalleagles, 505 (citations omitted).

[28] Dalleagles, 506 (citations omitted).

[29] Dalleagles was decided at a time when the test for legal professional privilege was the "sole purpose" test, rather than that which applies today, being the "dominant purpose" test.

[32] Asahi, [70] citing Dalleagles.

[34] See paragraphs 50 and 53 above.

[35] [1952] 2 All ER 462, 466 ('Conlon').

[36] [2018] VCC 1662 (per Burchell JR) ('Begley').

[37] [2010] FCA 252, [125] (citations omitted). See also New South Wales v Betfair Pty Ltd [2009] FCAFC 160, [54].

[38] That the information was provided by a third party does not mean that the communication is not privileged. See Asahi, [38]; Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 207 ALR 217.

[39] Referring to CSR Ltd v Eddy [2008] NSWCA 83; (2008) 70 NSWLR 725, 729.