Plaintiff v First Defendant

1 The plaintiff, Mr John Setka, is the secretary of the Victorian-Tasmanian branch of the Construction, Forestry, Mining and Energy Union ('CFMEU'). The defendants, Messrs Paul Dalton and Peter Head ('defendants'), were at all relevant times senior executives of Boral Limited ('Boral').

2 The background to the dispute between the parties and this proceeding is set out in some detail in reasons I delivered on 28 September 2020 concerning a strike out application made by the defendants.[1] I will not repeat that detail here.[2] For present purposes, it is sufficient to record that between early 2013 and late 2015 Boral was in an adversarial relationship with the CFMEU which resulted in, among other things, litigation in this Court. While Boral's employees are generally represented by another union, Boral was aggrieved by the CFMEU's conduct in interfering with the delivery of concrete to its customers in the Melbourne metropolitan area, allegedly because Boral refused to give in to CFMEU's demands that Boral cease supplying concrete to Grocon Constructions (Vic) Pty Ltd ('Grocon'), when CFMEU was engaged in a separate industrial dispute with Grocon.

3 In February 2013 Boral issued a proceeding in this Court seeking an injunction to restrain the CFMEU from interfering with the delivery of concrete by Boral to its customers. An injunction was duly granted. Following further conduct on the part of the CFMEU which was said to be in breach of the injunction, Boral issued a proceeding seeking that the CFMEU be punished for contempt of Court ('contempt proceeding'), and ultimately, damages for its breach of the injunction ('damages'). After various interlocutory applications and appeals in the contempt proceeding and the damages proceeding, both proceedings were ultimately compromised by Boral and the CFMEU on or about 18 September 2015.

4 In April 2013, Messrs Setka and Reardon met with the defendants in a café in North Melbourne ('Auction Rooms meeting'). What was said by Messrs Setka and Reardon at the Auction Rooms meeting ultimately became the subject of criminal charges laid by Victoria Police in December 2015 ('criminal proceeding'), alleging that Messrs Setka and Reardon had attempted to blackmail Boral, relying substantially upon statements provided in April 2015 to Victoria Police by the defendants ('police statements') as to what occurred and what was said at the Auction Rooms meeting.

5 The police officers who laid the charges against Messrs Setka and Reardon were members of a joint Australian Federal Police/Victoria Police taskforce ('Project Heracles') charged with investigating, and, where appropriate, laying charges in relation to alleged criminal conduct by trade unions and union officials identified by the Royal Commission into Trade Union Governance and Corruption ('Royal Commission'), which delivered an interim report in December 2014. The conduct of the CFMEU and its officials had been the subject of some criticism in the interim report. Boral made submissions and provided assistance to the Royal Commission during the course of 2014, and also provided information and assistance to Project Heracles. Both of the defendants, along with other Boral employees, provided statements to the police in or about April 2015, although the issue of whether the statements made by Messrs Setka and Reardon during the Auction Rooms meeting amounted to blackmail was first raised by Mr Damien Sullivan, Boral's then in-house counsel in June 2014, during the course of his involvement and the defendants' involvement in preparing Boral's evidence and submissions to the Royal Commission.

6 During the same period, the Australian Competition and Consumer Commission ('ACCC') was conducting its own investigations into the conduct of the CFMEU and its officials, and ultimately brought a proceeding against the CFMEU ('ACCC proceeding') in November 2014. Once again, Boral provided assistance to the ACCC both prior to and during the course of the ACCC proceeding. Mr Dalton was orally examined by the ACCC on 26 June 2014.

7 During the course of the contempt proceeding, the damages proceeding, the Royal Commission, and the ACCC proceeding, Boral was represented by solicitors. There was some overlap in Boral's representation, in that Boral was represented by Fisher Cartwright Berriman ('FCB') in the damages proceeding until about September 2014. From April 2014, Boral was represented by Herbert Smith Freehills ('HSF') during the Royal Commission, and HSF represented Boral in the damages proceeding from September 2014. FCB continued to represent Boral in the contempt proceeding until it was compromised, along with the damages proceeding, on 18 September 2015.

8 On 6 December 2015, that is, after the conclusion of the contempt proceeding and the damages proceeding, and the Royal Commission, Victoria Police arrested and detained Messrs Setka and Reardon at the Melbourne West police station, and laid charges alleging that they had:

(a) made an unwarranted demand with menaces with the intention of causing loss to Boral; and

(b) contravened s 87 of the Crimes Act 1958 (Vic), being the prohibition on blackmail.

9 The charges against Messrs Setka and Reardon were contested, and a committal hearing was conducted at the Melbourne Magistrates' Court in May 2018 ('committal hearing'). The defendants both gave evidence at the committal hearing. While they adopted the contents of their police statements on oath, their evidence under cross‑examination was arguably inconsistent with the contents of their police statements. After the defendants gave their evidence at the committal hearing, the prosecution withdrew the charges against Messrs Setka and Reardon, which were subsequently struck out.

10 This proceeding was issued on 3 April 2020, alleging that the defendants were liable to pay damages to Messrs Setka and Reardon for false imprisonment (being their detention at the Melbourne West police station on 6 December 2015), and malicious prosecution. While it is not necessary for present purposes to go into any great detail regarding the allegations in the statement of claim, in summary, the statement of claim alleges that the defendants, in making the police statements, were the proximate cause of the plaintiffs' detention on 6 December 2015, and that the defendants acted maliciously in that they were motivated by a purpose other than the proper invocation of the criminal law. While the defendants admit making the police statements, and giving evidence at the committal hearing, they deny any liability for false imprisonment and/or malicious prosecution.

11 As noted above, the defendants brought a strike out application in late 2020, which was largely unsuccessful, although I did grant the plaintiffs leave to file and serve an amended statement of claim in order to clarify some allegations made against the defendants, which was filed on 9 October 2020.

12 Since December 2020, the parties, along with third parties, including Boral, the ACCC and the Commissioner of Police, have been engaged in discussions and negotiations regarding documents discovered by the defendants, and documents produced in response to subpoenas issued on behalf of Mr Setka and directed at Boral, the Commissioner of Police, the ACCC, and HSF ('subpoenas'), in particular, regarding claims made for legal professional privilege and public interest immunity over documents discovered by the defendants and produced pursuant to the subpoenas.

13 These discussions and negotiations have reduced the ambit of the issues in dispute. In particular, neither the ACCC or the Commissioner of Police press their claims for legal professional privilege and/or public interest immunity over any documents produced by them pursuant to the subpoenas, and Mr Setka has in turn not pressed for production of other documents produced by them. Boral, however, maintains claims for legal professional privilege over more than three hundred documents discovered by the defendants, and produced by it and HSF pursuant to the subpoenas ('challenged documents'). Boral's privilege claims over the challenged documents are the subject of the current dispute.

14 As noted above, Mr Setka seeks production of the challenged documents. Boral's claims for privilege over documents produced by it pursuant to the subpoena ('Boral documents') are governed by s 118 of the Evidence Act 2008 (Vic) ('Act') ('advice privilege') and s 119 of the Act ('litigation privilege'). However, Boral's privilege claims with respect to the documents produced by the defendants upon discovery ('discovery documents') and the documents produced by HSF ('HSF documents') and the HSF documents are governed by the common law.[3]

15 The parties agree that the difference between the test for determining whether a document or communication is protected by advice privilege under s 118 of the Act or at common law is not of any particular relevance to the current application. However, relevantly for the purpose of current application, the test for litigation privilege under s 119 of the Act is more expansive than at common law. In particular, documents prepared for the purpose of or in connection with the Royal Commission would arguably be protected by litigation privilege under s 119 of the Act, given the expansive definition of "proceeding" under the Act, but not at common law.[4] For that reason, Boral's claims with respect to the challenged documents relating to the Royal Commission are based upon claims for advice privilege under the common law, although arguably Boral was entitled to claim privilege under both heads for the ACCC documents produced by it pursuant to the Boral subpoena. Further, claims for litigation privilege under s 119 of the Act extend to documents regardless of whether they were delivered or not, while under the common law, only privileged communications are protected. However, that distinction is not material to the current application.

16 Boral's claims for privilege are supported by affidavits affirmed by its Acting Group General Counsel, Ms Amy Jackson, on 4 March 2021, 6 May 2021, and 10 August 2021. Some of Ms Jackson's evidence concerned procedural matters, which is not necessary to recount here. However, given that the quality and reliability[5] of the evidence advanced in support of Boral's privilege claims was subject to a sustained attack by Mr Setka, it is necessary to refer to Ms Jackson's evidence in some detail.

17 In her affidavit of 4 March, Ms Jackson deposed, in summary, as follows:

(a) the matters set out in her affidavit were based upon her knowledge and belief in her capacity as Acting Group General Counsel of Boral, and her review of Boral's files;

(b) Boral claimed privilege over certain confidential communications in the discovery documents, being:

(i) communications between Boral's external lawyers for the dominant purpose of Boral receiving legal advice in relation to Boral's dealings with the CFMEU, including the alleged interference by the CFMEU with Boral's concrete deliveries ('CFMEU black ban'), and Boral's involvement in the Royal Commission, the contempt proceeding, the ACCC proceeding and the criminal proceeding;

(ii) communications between Boral's external lawyers and counsel retained by Boral for the dominant purpose of providing Boral with professional legal services for use in or in relation to the pending or anticipated proceedings arising from Boral's dealings with the CFMEU, including the contempt proceeding and the damages proceeding;

(iii) communications between Boral's in-house lawyers and Boral employees for the dominant purpose of Boral receiving legal advice from Boral's external lawyers or in-house lawyers in relation to the CFMEU black ban, the Royal Commission, the ACCC proceeding, or the criminal proceeding;

(iv) communications between Boral employees for the purpose of Boral receiving legal advice from external or in-house lawyers in relation to the CFMEU black ban, the Royal Commission, the ACCC proceeding, or the criminal proceeding;

(v) communications between Boral employees for the dominant purpose of external lawyers providing Boral with professional legal services for use or in relation to pending or anticipated legal proceedings; and

(vi) communications between Boral employees that record the content or substance of legal advice provided by Boral's external or in‑house lawyers;

In preparing this affidavit I have:

(a) reviewed each of the [discovery documents];

(b) reviewed documents to inform myself of the factual context in which Boral makes a claim of privilege over the [discovery documents], including:

(i) pleadings filed in the Damages Proceeding, Contempt Proceeding and ACCC Proceeding;

(ii) relevant judgments and orders made in the Damages Proceeding;

(iii) relevant Boral witness statements filed in, and transcripts of evidence given by Boral employees in, the Royal Commission hearings;

(iv) relevant Boral witness statements and outlines of evidence filed in, and transcripts of evidence given by Boral employees in, the Damages Proceeding;

(v) relevant outlines of evidence of Boral employees filed in the ACCC Proceeding and a transcript of Paul Dalton's section 155 ACCC examination;

(vi) police statements sworn by Boral employees, and transcripts of evidence given by Boral employees, in the Committal Proceeding; and

(vii) the settlement agreement between Boral and the CFMEU agreed in the Damages Proceeding and Contempt Proceeding dated 18 September 2015; and

(c) reviewed relevant engagement letters between Boral and its external solicitors engaged in connection with the matters the subject of this affidavit.

(d) Ms Jackson then deposed as to her past and current roles with Boral. She has held the role of Acting General Group Counsel since 8 February 2021, having succeeded Mr Damien Sullivan, who held the role from July 2013 to February 2021. Mr Sullivan's predecessor was Ms Margaret Taylor, who held the role from November 2008 to July 2013. Both Ms Taylor and Mr Sullivan advised Boral in relation to the damages proceeding and the contempt proceeding. Mr Sullivan also advised Boral in relation to the Royal Commission, the ACCC proceeding, and the criminal proceeding. Prior to becoming Acting Group General Counsel, Ms Jackson had been employed in various legal roles at Boral from November 2010;

(e) Ms Jackson then went on to depose as to her understanding of the relevant events between 2013 and 2018, including the Auction Rooms meeting, the contempt proceeding, the damages proceeding, the Royal Commission, Project Heracles, and the criminal proceeding. Ms Jackson observed that both of the defendants, plus other senior personnel of Boral (including the then CEO, Mr Mike Kane) gave evidence at the Royal Commission; and

(f) she exhibited a table of documents enumerating the discovery documents over which Boral maintained a claim for legal professional privilege, in whole or in part. The table provided, for each document, the document ID number, the date, a description, and further detail under the heading "Privilege basis", as shown by the first item in the table, which is reproduced below:

Email from Paul Dalton (Boral) to Linda Maney, Peter Head and John Biondo (Boral employees) titled: "Fwd: CFMEU" forwarding email from Rod Marshall (Fisher Cartwright Berriman)

BOR.001.009.4691 is an email from Paul Dalton (Boral) to Linda Maney, Peter Head and John Biondo (Boral employees) forwarding an email received from Rod Marshall (Fisher Cartwright Berriman), Boral's external legal adviser, in which Fisher Cartwright Berriman provide an update in relation to the status of the Damages Proceeding against the CFMEU. Accordingly, Boral claims litigation privilege over this document.

18 In her affidavit of 6 May 2021, Ms Jackson referred to the matters deposed to in her first affidavit and summarised above, and annexed a table of the Boral documents and the HSF documents, in the same format as the table of discovery documents.

19 Ms Jackson deposed that she has reviewed each of the Boral documents and the HSF documents, and stated that Boral claims privilege over:

(a) confidential communications between Boral employees and Boral's external lawyers for the dominant purpose of Boral receiving legal advice in relation to the CFMEU, the Royal Commission, the damages proceeding and the criminal proceeding, or providing Boral with professional legal services in relation to pending or anticipated proceedings, including the damages proceeding;

(b) confidential communications between Boral's external lawyers and Hament Dhanji SC for the dominant purpose of providing Boral with legal advice in relation to the CFMEU, the Royal Commission, the damages proceeding and the criminal proceeding;[6]

(c) confidential communications between Boral's in-house lawyers and Boral employees for the dominant purpose of Boral's in-house lawyers providing legal advice to Boral regarding the CFMEU black ban, the Royal Commission, or the criminal proceeding;

(d) confidential communications between Boral employees that record the content or substance of Boral's legal advice; and

(e) handwritten file notes and associated printouts taken and used by Boral's in‑house lawyers or external lawyers in connection with Boral's receipt of legal advice, or in connection with the provision of legal advice or professional legal services to Boral.

20 Ms Jackson then went on to identify the names and roles of Boral legal and non‑legal personnel who had sent or received the communications recorded by the challenged documents, and exhibited correspondence between Boral's solicitors and the solicitors for Mr Setka regarding the challenged documents.

I have reviewed each of the documents set out in Annexure 1 (Boral Subpoena) and Annexure 2 (HSF Subpoenas).

I have satisfied myself, on the face of the documents and my interpretation of the documents or communications:

(a) of the dominant purpose of each of the documents or communications;

(b) that each document and communication is confidential to Boral; and

(c) that each of Boral's claims of legal professional privilege have been properly made.

I have also reviewed the description and privilege basis recorded in respect of each document set out in Annexure 1 (Boral Subpoena) and Annexure 2 (HSF Subpoenas) and have satisfied myself that these records are accurate.

22 The third affidavit of Ms Jackson, affirmed on 10 August 2021, was largely responsive to the matters raised in Mr Setka's written outline of submissions in opposition to Boral's privilege claims over the challenged documents. Ms Jackson deposed, in summary, as follows:

(a) her predecessor, Mr Damien Sullivan, left the employ of Boral in February 2021 at fairly short notice. He has no ongoing obligation to assist Boral, and she believed that he would not be willing to swear an affidavit in support of Boral's privilege claims. Mr Sullivan's unwillingness to assist Boral was confirmed in an email exchange between them on 5 August 2021;

(b) she identified a number of authors or recipients of some of the challenged documents who had left Boral's employ, and provided their departure dates;

(c) she referred to the retainers between Boral and HSF with respect to CFMEU related matters, and exhibited three retainer letters, dated 28 April 2014, 16 September 2014, and 10 November 2015;

(d) Ms Jackson deposed as follows:

The November 2015 retainer refers to HSF providing advice to Boral in connection with the Project Heracles investigation. I am aware, from my review of Boral's files, that HSF had been advising Boral in connection with that investigation following its commencement in December 2014 on referral from the Royal Commission. This involved HSF advising Boral in relation to:

(a) requests it had received from Project Heracles officers for copies of witness statements filed on Boral's behalf in the Royal Commission; and

(b) providing further information to Victoria Police, including advising Boral in relation to the evidence that Mr Dalton and Mr Head were providing to Project Heracles officers by way of witness statements;

(c) the evidence that would be put before the Committal Proceeding; and

(d) the progress of the Committal Proceeding.

The November 2015 retainer also refers to HSF providing advice to Boral in connection with the ACCC Proceedings. I am aware from my review of Boral's files that HSF had been advising Boral in connection with those proceedings following their commencement in November 2014 (and had been advising Boral in connection with the ACCC investigation before proceedings were commenced). This included advising Boral in relation to requests from the ACCC for documents and witness testimony from Boral employees.

(e) in response to Mr Setka's submissions to the effect that provision of a document to Boral's external communications advisor, Cannings Corporate Communications ('Cannings'), had waived any privilege claimed by Boral with respect to that document, Ms Jackson deposed as follows:

Cannings is a long-standing external communications adviser of Boral. Boral engages Cannings to provide strategic communications advice to Boral in relation to major corporate issues, including announcements, initiatives with key stakeholders, media engagements and other significant external activities. From time to time, Boral provides confidential information to Cannings in the course of obtaining its advice. Boral expects that Cannings treats as confidential any sensitive information that it receives as part of its engagement.

Cannings is also contractually required to treat all confidential information it receives during the course of its engagement for Boral as confidential.

23 Ms Jackson exhibited a copy of the engagement letter between Boral and Cannings dated 27 July 2012, which included a clause to the effect deposed to by Ms Jackson in her affidavit.[7]

24 Given the criticisms made by Mr Setka of Ms Jackson's evidence, the gravamen of which was to the effect that Ms Jackson had done no more than undertake a "desktop review" of the challenged documents, the HSF retainer letters, being the best available contemporaneous evidence of what HSF was retained to do, warrant some attention, while accepting that they were created for quite a different purpose than the purpose for which they are analysed here.

25 The first HSF retainer letter, dated 28 April 2014 and addressed to Mr Sullivan, concerned the Royal Commission. Under the heading "Scope", the first HSF retainer letter provided as follows:

Based on our discussions, we understand that Boral may be involved in relation to investigations by the Commission concerning the conduct of the Construction, Forestry. Mining and Energy Union (CFMEU) particularly in Victoria.

Boral currently has proceedings against the CFMEU in relation to the union's illegal activities.

Boral's involvement may include:

• Boral's employees or officers giving information or evidence to the Commission;
• producing documents to the Commission; and
• responding if information or evidence of Boral is challenged, or other allegations made, by other parties at the Commission.

We have set out below our understanding of the scope of the legal services we will provide for this matter.

Subject to your further instructions, the legal services we will initially provide include:

• providing initial advice and comments to Boral in relation to the Commission and strategic options;
• if instructed, briefing Junior and Senior Counsel to represent Boral in relation to, and if needed before, the Commission;
• assessing with Boral any likely lines of enquiry by the Commission insofar as they may relate to matters in which Boral has been a party. This may include the implications, if any, of the investigations to Boral's current proceedings;
• if instructed, reviewing and producing documents to the Commission;
• if instructed, taking statements from, or meeting with, Boral employees of [sic] officers who may give evidence (or supply information) to the Commission;
• general advice in relation to approaches to the Commission, as instructed from time to time;
• if Boral employees or officers give evidence to the Commission, appearing on their behalf.

26 As can be seen from the above, the scope of HSF's retainer with respect to the Royal Commission was unremarkable, but it is apparent from this letter that HSF's role went beyond the mere provision of purely legal advice to representing Boral at the Royal Commission, and co-ordinating Boral's provision of evidence to the Royal Commission. The question in the current application is whether all of the challenged documents brought into existence during the course of this retainer, or each of them, fall within the "continuum of communications" which are properly within the scope of HSF's advisory role. Further, I note that the partners leading the HSF team acting for Boral in the Royal Commission are different than the lawyers nominated by HSF to represent Boral in the damages proceeding, so it could not be said that HSF's representation of Boral at the Royal Commission was merely an extension of its retainer to represent Boral in the damages proceeding: indeed, HSF's retainer with respect to the Royal Commission predated its retainer with respect to the damages proceeding.

27 The second HSF retainer letter, dated 16 September 2014, is also addressed to Mr Sullivan, and confirms HSF's retainer to act for Boral in the damages proceeding. The "core team" nominated by HSF included Mr Grant Marjoribanks and Mr Mark Smyth, who are the authors and recipients of many of the challenged documents. The terms of the retainer are unremarkable for present purposes.

28 The third retainer letter, again addressed to Mr Sullivan, and dated 10 November 2015 (that is, after the settlement of the damages proceeding and the contempt proceeding), refers to "advice and assistance on an ongoing basis in relation to the CFMEU issues". The third HSF retainer letter provided, under the heading "Scope", as follows:

We agreed that it would be appropriate to open a new matter for ongoing CFMEU related attendances rather than record those attendances against the Heydon Royal Commission file as we have done to date.

We understand we are to provide you with legal advice and representation with respect to ongoing CFMEU issues including:

• Project Heracles;
• the ACCC proceedings;
• FWBC investigations;
• the Heydon Royal Commission;
• public/government related issues where legal input is sought;
• any miscellaneous attendances in relation to the CFMEU that do not merit opening a stand-alone file.

29 Again, Mr Marjoribanks and Mr Smyth were nominated as the members of the core HSF team under this retainer.

30 The scope of HSF's retainer as described in the third retainer letter again goes beyond what might be considered to involve HSF having a purely advisory role. Accordingly, it is necessary to carefully examine each of the challenged documents which concern the subject matter of the third retainer in order to evaluate whether the communications evidenced by the challenged documents were made for the purposes of HSF providing Boral with legal advice, or were "attendances" which do not fall within the scope of advice privilege.

31 I pause to note here that a small handful of the challenged documents concerning Boral's dealings with the ACCC ('ACCC documents') evidence communications between Boral and FCB. There is no direct evidence that Boral retained FCB to advise Boral regarding its dealings with the ACCC.

32 Mr Setka's solicitor, Ms Jessica Dawson-Field of Maurice Blackburn, affirmed two affidavits in support of Mr Setka's application for production of the challenged documents, and the HSF documents, on 21 June 2021 and 13 August 2021. In her affidavit of 21 June 2021, Ms Dawson-Field deposed as to the correspondence between the parties, the ACCC and the Commissioner of Police regarding the issues in the current application over the period between January 2021 and June 2021, and exhibited a selection of that correspondence.

33 Ms Dawson-Field also exhibited a number of documents relevant to the allegations in the statement of claim and said to be relevant to the current application, including the defendants' police statements, extracts of the transcript of the committal hearing, and various documents discovered and produced by the defendants dated between 14 June 2014 and 23 May 2016 which were said to provide some context to the creation of the challenged documents.

34 In her affidavit of 13 August 2021, Ms Dawson-Field exhibited a further selection of documents referred to in the statement of claim or discovered by the defendants in the proceeding, including the witness statements of the defendants provided to the Royal Commission on or about 7 July 2014.

35 Also exhibited to Ms Dawson-Field's first affidavit was a version of the tables exhibited to Ms Jackson's first two affidavits ('schedule'), which was annotated with what are described in the parties' submissions and these reasons as "categories of challenge".

36 The categories of challenge are discussed further later in these reasons, but in short form, they are as follows:

(a) documents where there is evidence of multiple purposes;

(b) documents where there is insufficient evidence of the dominant purpose;

(c) documents prepared for representation at the Royal Commission;

(d) documents prepared for Project Heracles and the criminal proceeding;

(e) the ACCC documents;

(f) documents prepared by non-lawyers;

(g) emails from non-lawyers that forward emails from lawyers to other non‑lawyers;

(h) documents where privilege has been waived;[8]

(i) documents prepared by in-house lawyers; and

(j) documents reporting on the committal hearing.

37 As can be seen from the above, the categories of challenge are just that, in that they represent, in summary form, the basis upon which Mr Setka challenges Boral's claims for privilege, rather than providing a means of organising the challenged documents into particular classes of documents. Further, categories (a) and (b) above, which focus upon the adequacy of the evidence advanced by Boral to support its privilege claims, are, in effect, a global challenge to Boral's privilege claims, based upon, among other things, Mr Setka's contention that Ms Jackson was not the proper person to give evidence in support of Boral's claims for privilege over the challenged documents.

38 Mr Setka also submitted that, given the nature of the allegations against the defendants in the proceeding, and the evidence already in existence in support of those allegations, then the Court should be alert to the question of whether s 125 of the Act ('fraud exception') applies to some or all of the challenged documents, such as to overcome Boral's claims for privilege.

39 Finally, for completeness, Mr Setka also challenges the first defendant's claim for privilege over two of the discovery documents. In the interests of efficiency and minimising costs (given the hearing of the application consumed one and a half sitting days), it was agreed that this dispute be stood over until after the hearing and determination of the current application, given that my findings regarding the challenged documents may assist the parties to resolve this dispute without the need for a further hearing.

Grounds of challenge (a), (b) and (i) - adequacy of evidence of dominant purpose, and the involvement of Mr Sullivan

40 Taking first the "global" challenge to Boral's claims for legal professional privilege, being Mr Setka's submission that the evidence adduced in support of Boral's privilege claims is inadequate to support Boral's claims, this submission is based upon the following propositions:

(a) Ms Jackson is not the proper deponent, as she is unable to provide direct, admissible evidence of the purpose for which the challenged documents, or any of them, were brought into existence, and Ms Jackson has no firsthand knowledge of the circumstances in which the challenged documents were created;

(b) Boral's evidence is not sufficiently focussed or specific to establish that the dominant purpose of the challenged documents was for the purpose of Boral seeking or being furnished with legal advice, or the purpose of Boral being provided with professional legal services with respect to legal proceedings. In particular, Mr Setka challenged whether documents prepared for the purposes of "assisting" Boral with the Royal Commission, the ACCC investigation, and the criminal proceeding (where a claim for litigation privilege is not available to Boral), truly constitute or embody legal advice; and

(c) the Court should not accept conclusionary statements as to whether a communication was prepared for the purpose of Boral receiving advice in circumstances where Ms Jackson has deposed to multiple purposes, including "advice and assistance", rather than just simply advice.

41 Mr Setka submitted that it was insufficient for Boral to rely upon a desktop review of the relevant files and the challenged documents by a person with no firsthand knowledge of the circumstances in which the challenged documents were created, or of the purpose for which they were created. While Mr Setka accepted that evidence of the subjective purpose of the author of a communication is not decisive, it is necessary for a party claiming privilege to adduce such evidence, and the authorities provide that in the absence of direct, admissible evidence of the purpose of a communication, the Court is entitled to draw an inference that a communication was made for multiple purposes.[9] Mr Setka observed that Ms Jackson gave no evidence of her involvement in the matters which were the subject of the challenged documents, and she gave no evidence of having made queries of or having obtained information from others who might have a better understanding as to what occurred during the relevant period.

42 In response, Boral observed that of the three-hundred-plus challenged documents, 69 were documents over which Boral claimed litigation privilege, and verifying those claims would be a straightforward matter.

43 Boral rejected Mr Setka's submission that Boral had failed to discharge its burden of establishing that the challenged documents were protected from disclosure by reason of legal professional privilege. Boral submitted that Mr Setka's assertion that a claim for privilege can only be established by direct evidence from the authors or recipients of the documents concerned is incorrect, submitting that the purpose for which a document or communication is made is "a question of fact to be determined objectively from the nature of the relevant communication, the relevant commercial context and the relationships between the parties".[10]

44 Boral submitted, in response to the proposition that Ms Jackson was not the appropriate person to give evidence in support of Boral's claims for privilege over the challenged documents, that the authorities make it clear that the evidence of the maker of a communication is not conclusive, and in the usual run of cases, will not even be necessary.[11]

45 Boral submitted that this is a case where it is impractical to expect that the author or originator of a document should be required to give evidence in support of a privilege claim. Boral distinguished the current application from the facts and circumstances Brereton J of the New South Wales Supreme Court was confronted with in Hancock v Rinehart (Privilege) ('Hancock'),[12] where not only did the deponent have no knowledge of the circumstances in which the relevant documents were created, but also the evidence was unclear as to in what capacity the party claiming the privilege had received legal advice, which was of critical significance to the resolution of the dispute before the Court on that occasion. Boral submitted that Ms Jackson's affidavits provide clear, cogent and admissible evidence as to the circumstances in which each of the challenged documents was created and the purpose of their creation. Further, Boral's evidence is sufficiently focussed and specific to enable the Court to make an informed decision about the correctness of Boral's claims, particularly when the detailed description of each document is read together with the evidence regarding Boral's legal team, its engagement of external lawyers, and the legal context and proceedings in the relevant period.

46 Boral submitted that just because in some instances Ms Jackson's evidence arguably identifies multiple purposes for the creation of certain documents and communications, it does not necessarily follow that Boral's claims are not made out. That there might be more than one feature or aspect of a particular communication does not deprive that communication of having a relevant dominant purpose, particularly in circumstances where there is multiplicity of proceedings and investigations underway. Boral submitted that legal advice includes advice as to what Boral should prudently do in a relevant legal context, and distinguishing between "advice" and the provision of information in connection with ongoing disputes amounts to splitting hairs. Boral submitted that where communications take place between a client and its independent legal advisors, it may be appropriate to assume that legal advice is being sought, in the absence of any contrary evidence, noting that HSF either acted for Boral in current or anticipated legal proceedings, or provided legal advice over the course of many years regarding Boral's dealings with the CFMEU and the fallout of those dealings.

47 Boral submitted that the authorities support the view that a generous approach should be taken to the question of what communications fall within the scope of advice privilege, noting that:

Communications do not have to contain 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 advisor to the client. [13]

48 Boral submitted that the descriptions of the challenged documents in the schedule, while on occasion repetitive, are by no means formulaic or conclusionary, and some level of generality is necessary in order to preserve the confidentiality of privileged documents.

49 Boral submitted that Mr Setka's submission to the effect that the scope of litigation privilege is broader than advice privilege might lead to an unduly narrow view of the scope of advice privilege, and cautioned against taking too fine grained a view of the communications themselves, without having regard to the broader context in which they were made. Just because the communications between Boral and HSF did not always contain formal legal advice does not mean that the communications did not fall within the continuum of communications made for Boral obtaining or receiving legal advice.

50 Mr Setka also observed that a number of the challenged documents were authored or received by Mr Damien Sullivan, the former Group General Counsel of Boral. He accepted that the communications involving Mr Sullivan would be privileged where Mr Sullivan was being consulted by Boral in his capacity as a lawyer, but the documents in evidence reveal that Mr Sullivan was closely involved in Boral's dealings with the CFMEU in a strategic capacity, rather than solely in a legal capacity, in circumstances where Boral was engaged in what might be described as a public relations campaign against the CFMEU in pursuit of Boral's strategic commercial interests. Mr Setka submitted that accordingly, the Court cannot presume that all communications involving Mr Sullivan were brought into existence for the dominant purpose of Mr Sullivan providing Boral with legal advice.

51 In response, Boral submitted that there were no facts or circumstances identified which suggest that Mr Sullivan, as Boral's most senior in-house lawyer, was not acting in his professional capacity as a lawyer. Boral observed that the context in which the challenged documents were brought into existence was an inherently legal context, being a series of disputes between Boral and the CFMEU. The challenged documents do not arise in the context of commercial negotiations, but rather in a legal context. Even if Mr Sullivan had a "strategic" role as well as a legal role, that does not alter the dominant purpose for which the challenged documents were brought into existence.

Grounds of challenge (c) and (e) - the Royal Commission and the ACCC proceeding

52 Mr Setka submitted, with respect to Boral's claims for advice privilege over documents concerning the Royal Commission ('Royal Commission documents'), no litigation privilege is available for documents prepared for the purpose of Boral providing assistance to and being represented at the Royal Commission, and those documents would not necessarily be protected by advice privilege either, as advice privilege does not protect documents recording or evidencing the provision of legal services for the purposes of representation. Substantially similar submissions were made with respect to the ACCC documents.

53 Boral submitted that upon inspection, it would be apparent that the Royal Commission documents were brought into existence for the dominant purpose of Boral receiving legal advice from in-house and external lawyers concerning its participation in the Royal Commission, noting that legal advice includes professional advice given by lawyers to a client as to what evidence and submissions should be placed before a commission of inquiry.

54 Similar observations were made with respect to the ACCC documents, with Boral observing that the Court would "readily accept the evidence that a large company like Boral would seek legal advice regarding its interactions with a statutory regulator".[14]

55 Boral submitted that it would be unsurprising, given its retainer in the damages proceeding, that HSF would be casting its eye over the evidence being given by Boral to the Royal Commission and the ACCC.

Categories of challenge (d) and (j) - Project Heracles, the criminal proceeding and the committal hearing

56 Mr Setka's submissions observed that there are a large number of documents in the schedule which are described as being connected with Project Heracles and/or the criminal proceeding, including reports concerning the committal hearing, and noted that these documents are critically important to the issues in dispute in this proceeding. Mr Setka submitted that, given that Boral was not a party to the criminal proceeding, and the defendants were merely witnesses at the committal hearing, it is difficult to understand how Boral can claim advice privilege over these documents.

57 Mr Setka submitted that, based on Ms Jackson's evidence, the role played by Boral in the criminal proceeding, and the terms of the third HSF retainer letter, HSF's role in the criminal proceeding seemed to have gone beyond merely providing legal advice to Boral. Further, Boral's submission to the effect that Boral was receiving legal advice from HSF regarding the criminal proceeding because the subject matter of the criminal proceeding overlapped with the subject matter of other proceedings in which HSF was retained by Boral was merely a submission, unsupported by any evidence.

58 With respect to the documents said by Mr Setka to have been prepared for "assisting" Boral with respect to Project Heracles and the criminal proceeding (as opposed to providing advice to Boral concerning Project Heracles and the criminal proceeding), Boral submitted that the broader context is important. In particular, the defendants were senior employees of Boral, who each had direct involvement in Boral's response to the CFMEU black ban, and had attended the Auction Rooms meeting on behalf of Boral. Further, the police statements were prepared contemporaneously with their evidence in the damages proceeding, and the evidence in the police statements regarding the losses suffered by Boral as a consequence of the CFMEU black ban was clearly a critical issue in the damages proceeding.

59 Boral submitted further as follows (omitting footnotes):

In this context, Boral's claim of privilege over these documents and communications is proper. It sought advice from HSF and that advice was provided on matters that concerned Boral's interests in other proceedings. The advice also concerned the evidence that would later be put before the Committal Proceeding. That the advice was provided to Boral through certain of its senior employees who later gave evidence as part of the Committal Proceeding is of no moment. It is important to recall that although at the Committal Proceeding Messrs Dalton and Head gave evidence as witnesses of fact, the evidence that they gave concerned threats that had been directed at the economic interests of their employer, Boral. In those circumstances it was prudent and appropriate for Boral to seek legal advice on the evidence to be given by Messrs Dalton and Head. It was this advice that was the dominant purpose of the communications falling within the plaintiff's Category "D".

Categories of challenge (f) and (g) - communications involving non-lawyers

60 In relation to challenged documents which appear from their description to have been authored by non‑lawyers, or to be communications between non-lawyers, Mr Setka submitted that the descriptions provided of the challenged documents do not support a conclusion that these documents are protected by legal professional privilege, and the documents concerned have not been provided in redacted form such as to disclose non‑privileged parts of these communications. A similar point was made with respect to documents which appear to be emails by lawyers forwarding advice from lawyers to other non‑lawyers. Mr Setka submitted there was no direct evidence of the purpose of the relevant communications, and there is insufficient information in the schedule to enable the reader to identify whether the forwarding email contained any further discussion or commentary by non-lawyers which would not necessarily be protected by legal professional privilege.

61 Boral submitted that many of the challenged documents which are communications between non-lawyers are subject to litigation privilege, as they relate to preparation for, or the progress of, the damages proceeding and the contempt proceeding. Further, Boral's claims for privilege over documents said to involve non‑lawyers forwarding communications from lawyers do not include instances where the non-lawyer author's commentary is not also protected by legal professional privilege, having regard to the observations I made in Alphington Developments Pty Ltd v Amcor Limited[15] to the effect that, where the communication between non-lawyers was merely passing on legal advice or other privileged communications, without any additional commentary, the communications would continue to be protected by legal professional privilege.

62 Mr Setka submitted that, given the nature of the allegations in the proceeding, in particular the allegation that the defendants provided statements to the police which were false, or deliberately false, the fraud exception under s 125 of the Act (and at common law) is enlivened. Mr Setka submitted that a number of documents and matters "lend colour to the charge" that there are reasonable grounds for finding that the defendants had committed a fraud. Mr Setka submitted that some of the challenged documents record communications between the defendants and other Boral personnel and HSF in June 2014, at around the time the issue of blackmail was first raised according to the defendants' evidence under cross-examination at the committal hearing. Further, many of the challenged documents appear to record communications in March and April 2015 between HSF and the defendants regarding the preparation of the defendants' police statements, in circumstances where the evidence shows that the police had told the defendants not to show their draft police statements to anyone else, but the defendants clearly did so.

63 Mr Setka submitted that the defendants' police statements contained evidence that was not in the witness statements provided by them to the Royal Commission and the ACCC, which raised the possibility that this additional evidence was a late invention, noting that in order to attract the operation of the fraud exception, it was not necessary for Mr Setka to establish fraud in accordance with the Briginshaw standard.

64 In response, Boral submitted that Mr Setka has not advanced admissible evidence that any of the challenged documents recorded or evidenced communications made, or prepared in furtherance of the commission of a fraud, as required by s 125 of the Act. The mere making of an allegation of fraud in a pleading is insufficient to attract the operation of the fraud exception, noting that Mr Setka has never gone on oath to refute the defendants' evidence as to what occurred at the Auction Rooms meeting.

65 Further, Boral submitted that, in order for the fraud exception to apply, the fraud must have been committed by, or with the knowing involvement of a party claiming privilege, that is, Boral. Boral submitted as follows:

While the plaintiff in this proceeding alleges that [the defendants] made false police statements, nowhere does the plaintiff even allege that Boral, as the employer of Messrs Dalton and Head and as the client receiving legal advice from HSF and other legal advisors, was involved or knowingly concerned in any such allegedly false police statements.

66 Boral submitted that there was no evidence to lend colour to the charge that the defendants deliberately gave false evidence to the police. The mere fact that the evidence of a witness was undermined or undone during cross‑examination is an unexceptional by‑product of the adversarial system of justice, and of itself does not give rise to an inference that there has been a fraud. Further, the additional evidence seized upon by Mr Setka first arose in the draft police statement provided to Mr Dalton by the investigating police officer on 3 April 2015, not in drafts prepared by HSF.

67 As can be seen from the summary of the submissions above, there are a number of issues associated with the current application, which can be summarised as follows:

(a) whether the evidence in support of Boral's claims for legal professional privilege over the challenged documents is adequate and sufficient to discharge the onus upon Boral to establish that each of the challenged documents (or indeed any of them) record communications made for the dominant purpose of Boral obtaining or receiving legal advice, or receiving professional legal services with respect to current or anticipated litigation;

(b) in cases where the challenged documents are said to be documents protected by advice privilege, and concern the Royal Commission, the ACCC proceeding, and/or Project Heracles and the criminal proceeding, whether those documents evidenced communications which were truly for the purpose of Boral seeking or receiving legal advice, or were really for the purpose of Boral receiving legal services not protected by either advice privilege or litigation privilege, or for other purposes;

(c) in cases where the challenged documents record communications between non-lawyers, whether the documents evidence communications which satisfy the dominant purpose test. Further, a query is raised over communications involving Mr Damien Sullivan, with Mr Setka submitting that his role in Boral went beyond a purely legal role; and

(d) whether any of the challenged documents should lose their privileged status by reason of the fraud exception.

68 Boral invited me to inspect the challenged documents, or a sample of the challenged documents, in order to confirm that the challenged documents were protected by legal professional privilege. At first, it was not entirely clear whether Mr Setka acceded to that course of action, given his primary submission to the effect that the evidence adduced by Boral in support of its claim for legal professional privilege was insufficient to justify the Court even entertaining Boral's claims for legal professional privilege, but during the course of the hearing of the application senior counsel for Mr Setka indicated that she had no objection to me inspecting the challenged documents, without resiling from Mr Setka's global challenge to Boral's claims for legal professional privilege.

69 Given the issues raised by Mr Setka as to whether the challenged documents for which advice privilege was claimed evidenced communications which were for the dominant purpose of Boral obtaining and/or receiving legal advice, and given the (understandably) opaque nature of some of the descriptions in the schedule, I considered that it was appropriate to inspect the challenged documents to scrutinise Boral's privilege claims. In any event, in the event that I was to accede to Mr Setka's submission that the evidence relied upon by him in the application engaged the fraud exemption, it would not be possible to determine whether any of the challenged documents attracted the fraud exception without inspecting the challenged documents. I did not consider that it would be practical to inspect only a sample of the challenged documents: that view was borne out by my inspection.

70 The parties canvassed the applicable legal principles and relevant authorities in their submissions in some detail, and the issues associated with Boral's claims with respect to the challenged documents have been the subject of considerable judicial attention, such that it is not necessary to canvass the relevant principles at any great length in these reasons.

71 The question of whether a communication is protected from disclosure by legal professional privilege is a question of fact. That said, as noted above, considerable judicial attention has been focussed upon the principles guiding the process of evaluating whether a particular communication or class of communications are caught by advice privilege. The following summary is adapted from the helpful and convenient discussion of the applicable principles in AWB Limited v Cole (No 5)[16] (omitting citations):

(a) the party claiming privilege carries the onus of providing that the dominant purpose of a communication was a privileged purpose;

(b) that onus may be discharged by evidence as to:

(i) the circumstances and context in which the communication occurred;

(ii) the purpose of the person who made the communication, or authored the document, or procured its creation; or

(c) that onus may also be discharged by reference to the nature of the communications themselves, possibly supported by argument or submissions;

(d) the purpose for which a communication is made or a document is brought into existence is to be determined objectively, and the evidence of the maker or procurer of the communication is not necessarily conclusive;

(e) the existence of legal professional privilege is not established by use of a mere verbal formula or conclusionary statements. Rather, often what will be required is evidence of the circumstances in which the relevant communication took place and the subject matter of the instructions given to a lawyer or advice furnished by a lawyer;

(f) ordinarily, the fact that a client consulted an independent lawyer about a legal problem in uncontroversial circumstances should be sufficient to discharge the onus of establishing legal professional privilege, absent any contrary indications;

(g) the "dominant" purpose of a communication is the predominant, prevailing, or paramount purpose, evaluated as at the time the communication was made or the document brought into existence;

(h) what constitutes legal advice is broadly defined, extending to professional advice as to what a party should prudently or sensible do in the relevant legal context, but does not extend to commercial or public relations advice;

(i) legal professional privilege protects the confidentiality of documents which constitute the work product of a lawyer, regardless of whether the documents concerned were provided to the client, along with documents brought into existence by the client that record or relate to the information sought by or provided to the lawyer to enable the lawyer to advise the client;

(j) these documents may include notes, memoranda, research memoranda, summaries and chronologies, and copies of non‑privileged documents, if the purpose of making the copy otherwise satisfies the dominant purpose test;

(k) legal professional privilege may attach to communications between in-house lawyers and their employers, provided that the lawyer is consulted in their professional capacity as a lawyer in relation to a professional matter; and

(l) the Court has the power to inspect and examine documents for which legal professional privilege is claimed in order to determine whether, on its face, the nature and content of the document supports or verifies the claim for legal professional privilege.

72 Some of the principles concerning the nature and specificity of the evidence required to support claims for legal professional privilege are discussed further in the following section of these reasons.

Adequacy of evidence, dominant purpose, and the role of Mr Sullivan

73 It is not necessary to canvass the authorities referred to by counsel in their submissions regarding the adequacy of the evidence relied upon by Boral to support its claims for legal professional privilege in any great detail, save to say that the authorities reveal a wide range of approaches to the level of detail and specificity required to support claims for legal professional privilege. What the authorities also reveal is that the nature and level of detail required to support claims for privilege is very situation specific, and varies according to, among other things, the nature of the proceeding, the number of documents over which privilege is claimed, the number of and roles of the authors and recipients of the documents concerned, and whether the privilege claimed is advice privilege or litigation privilege.

74 A useful summary of the principles regarding the evidentiary burden imposed upon a party claiming legal professional privilege is to be found in the recent decision of Abrahams J in DBCT Management Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd,[17] as follows:

The party claiming privilege bears the onus of proving the facts necessary to establish the relevant privilege, including that the communications or documents in question were made or created for the required dominant purpose. The existence of privilege will not "necessarily or conclusively [be] established by resort to any verbal formula or ritual". Nor will it necessarily be sufficient for a party merely to assert a claim for privilege or rely on an affidavit which asserts the purpose for which a document was brought into existence followed by a statement of the category of legal professional privilege to which the document is said to belong. The evidence should be focused and specific. A "bare or skeletal" claim, unsupported by evidence which enables the court to consider and make an informed decision about the correctness of the claim or whether it is supportable, will not suffice. The claimant must, by direct admissible evidence, set out the facts from which the court can consider whether the assertion or assertions concerning the purpose of the communication in respect of which privilege is claimed is properly made. The best evidence will be that given by the person whose purpose is in question.[18]

75 In this case, her Honour was considering an application with some similar features to the current application, in that the primary deponent relied upon by the party claiming legal professional privilege was a solicitor with no direct involvement in the creation of the documents concerned. Her Honour found that the deponent's lack of direct knowledge of the circumstances in which a communication was made was not fatal to the privilege claim, and rejected a submission to the effect that the privilege claim was unsupported by evidence, in circumstances where the evidence established the chronology of events relevant to the claim for privilege, and the subjective intention of the maker of the communications was evident from the documents in evidence before her.

76 In support of his submission to the effect that Ms Jackson's "desktop review" of Boral's files and the challenged documents did not qualify her to give evidence in support of Boral's privilege claims, Mr Setka relied upon the following statement by Brereton J in Hancock v Rinehart:[19]

To sustain a claim of privilege, the claimant must not merely assert it; but must prove the facts that establish that it is properly made. Thus a mere sworn assertion that the documents are privileged does not suffice, because it is an inadmissible assertion of law; the claimant must set out the facts from which the court can see that the assertion is rightly made, or in other words "expose ... facts from which the [court] would have been able to make an informed decision as to whether the claim was supportable". The evidence must reveal the relevant characteristics of each document in respect of which privilege is claimed, and must do so by admissible direct evidence, not hearsay.[20]

77 Mr Setka also relied upon the decision of the Court of Appeal in Carter Holt Harvey Wood Products Australia Pty Ltd v Auspine Ltd,[21] ('Carter Holt Harvey') where Maxwell P and Redlich JA stated as follows:

The application of the dominant purpose test, prescribed by the High Court decision in Esso, involves two distinct steps. The first is the ascertainment of the subjective purpose(s) of the person(s) making or commissioning the communication in question. And, as in this case, that investigation will depend upon the evidence which is led about that purpose or those purposes. If the Court concludes that there was more than one purpose, at least one of which was a purpose capable of attracting legal professional privilege, the second step is to determine whether the party claiming the privilege has established that the privileged purpose was the dominant purpose.[22]

78 Mr Setka submitted that, by implication, there must be some evidence of the subjective evidence of the maker of the communication to enable both limbs of the two stage test referred to above to be satisfied.

79 Boral contended that Mr Setka's submission to the effect that Boral could not rely upon hearsay evidence in support of its claims for privilege was not consistent with the orthodox approach taken to applications of the current kind, referring to the following statement of Jessup J in Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited:[23]

In the context of a claim of legal professional privilege, what was the purpose for which a particular communication was made is a question which must be answered objectively. The say-so of the maker of the communication will not be conclusive and, in the usual run of cases, will not even be necessary. Purpose is to be determined from the content of the document understood in its full context. The same approach is to be taken, in my view, where, as here, the question relates to the range of persons entitled to the privilege. In such a setting especially, it must be remembered that the question relates to the purpose of the communication rather than to the immediate thinking of the maker of the communication at the relevant time.[24]

80 Boral also relied upon the decision in Cargill Aust Ltd v Viterra Malt Pty Ltd (No 8),[25] where Macaulay J accepted that the evidence of the claimant's external solicitor, who had also done no more than conduct a desktop review of the relevant files and documents, was sufficient to enable the claims for privilege to be entertained.[26]

81 Some of the statements in the authorities regarding the nature and quality of the evidence required to support claims for privilege can be difficult to reconcile. That said, while I do not propose to compare and contrast the underlying facts and circumstances underlying the decisions relied upon by the parties in their submissions, it seems to me that each case turns on its own facts, and the availability of and practicality of adducing direct, non-hearsay evidence is a relevant factor. Principles of efficient case management also loom large, particularly where there are a large number of documents where claims for legal professional privilege are in dispute.

82 Mr Setka's submissions relied to a significant extent upon the absence of any firsthand subjective evidence of the purpose for which the challenged documents were created, relying upon the reference to the two-step purpose in Carter Holt Harvey.[27] However, I do not read the Court of Appeal's statement as being to the effect that, in every case, there must be direct, narrative evidence of the subjective purpose of the maker of the relevant communication. Rather, having regard to the Court's reasons as a whole, the issue before the Court in that case was whether the documents for which legal professional privilege was claimed recorded communications for both legal and non‑legal purposes, and it was necessary for the question of the dominant purpose of the communications to be objectively determined, but having regard to the subjective evidence of the purpose for which the relevant communications were made. In my view, their Honours' statement of the two-step process does not preclude the Court from drawing inferences regarding the subjective purpose of communications from documentary and other evidence before the Court, rather than direct evidence from the maker of the relevant communications. Further, in the current case, as will be explained further later in these reasons, the issue of whether communications brought into existence for multiple purposes is not a particularly significant issue in this application.

83 In the current application, while a substantial minority of the challenged documents are documents for which litigation privilege is claimed by Boral, the grounds for challenge with respect to these documents are largely (but not exclusively) put forward on the basis that the documents record communications prepared by non‑lawyers, or evidence communications between non‑lawyers. Accordingly, notwithstanding Mr Setka's submissions regarding the adequacy of the evidence relied upon by Boral to support its claims for legal professional privilege with respect to the challenged documents, in circumstances where the evidence about the existence and timeframe of the contempt proceeding and the damages proceeding is uncontroversial, it seems to me that the only real issue concerning these documents is whether Boral's claims for litigation privilege can be verified by inspection.

84 Approximately one quarter of the challenged documents are documents where Boral has claimed litigation privilege. While it is not necessary or appropriate to lay down any hard and fast rules, in many cases where litigation privilege is claimed, often all the evidence that is necessary to support such a claim is evidence concerning the existence of a current or anticipated legal proceeding (which, in the case of the contempt proceeding and the damages proceeding, is not a controversial issue), that the party claiming the privilege is a party to the proceeding, and the identity of the solicitors and counsel (and possibly third parties such as experts and other witnesses), given the broad compass of the term "professional legal services relating to a legal proceeding".

85 This proposition has certainly been borne out by my inspection of the challenged documents for which litigation privilege was claimed, in that I have upheld all of Boral's claims in that regard. While most of these documents record communications between non‑lawyers, it is evident from the subject matter and the contents of the documents that the communications were made for the purpose of, or in connection with, Boral's prosecution of the contempt proceeding and the damages proceeding.

86 The real issues of controversy in the current application are whether Boral has discharged the onus upon it to establish that the challenged documents for which advice privilege has been claimed were in fact brought into existence for the purpose of Boral obtaining or being furnished with legal advice, and whether Boral has claimed advice privilege over communications which fall within what the authorities recognise as the continuum of communications containing, recording, or evidencing legal advice, or made for the purpose of obtaining legal advice.[28] Mr Setka contends that it appears from the limited evidence available that HSF was retained by Boral not only to provide legal advice, in the sense conventionally understood, but also professional legal services which did not constitute or involve Boral seeking or being furnished with legal advice, such as was described as representation.

87 Turning first to the question of the sufficiency of Boral's evidence concerning the challenged documents for which advice privilege has been claimed, while I accept that there are some shortcomings in the evidence relied upon by Boral, it is difficult to see how, practically speaking, those difficulties could have been overcome. Given Mr Sullivan's unwillingness to assist Boral in this application, his evidence could only be adduced by Boral compelling him to give oral evidence pursuant to a subpoena, which would no doubt have led to the hearing being unduly protracted, which would be unusual and most undesirable in an interlocutory application of the current kind. The time period over which the challenged documents spanned was just over five years, and the number of lawyers and non‑lawyers involved as authors and recipients of the challenged documents, while not vast, was more than a mere handful. The only people whose involvement in the relevant events spanned the whole five-year period, and would have had the necessary overview of Boral's dealings with the CFMEU over that period were Mr Sullivan, and the defendants themselves, particularly Mr Dalton. Mr Sullivan's unwillingness to assist Boral has already been noted, and I can also understand why Boral would be reluctant to adduce evidence from either or both of the defendants in the context of the current application.

88 In my view, the deficiencies in the evidence relied upon by Boral to support its claims for legal professional privilege go to the weight to be afforded Ms Jackson's evidence rather than its admissibility. Ms Jackson has been able to give evidence regarding the context in which challenged documents were brought into existence, and the purposes for which HSF was retained (insofar as those purposes were recorded in the retainer letters). There is ample, uncontested documentary evidence which reveals and explains the sequence of the relevant events and disputes, and the nature and scope of HSF's retainer, and further evidence is not always necessary to explain what those documents mean.

89 However, Ms Jackson's lack of direct involvement in the relevant events and communications means that, where there is some doubt about the provenance and purpose of particular communications which cannot be resolved by inspection of the document recording the communication in question, then the absence of direct, specific evidence regarding the purpose (as opposed to the description) of the document concerned means that, in such cases, Boral will not have discharged the burden of establishing that the dominant purpose of the relevant communication was for Boral to seek or receive legal advice. In other words, while the evidence relied upon by Boral is sufficient to advance Boral's claims for privilege, in some cases, the evidence is generally insufficiently direct or focussed to resolve any doubts which arise upon inspection of the challenged documents.

90 As for documents which were authored or received by Mr Sullivan, I have not rejected any of Boral's claims for privilege solely on the basis that Mr Sullivan was not acting in his capacity as Boral's senior in-house lawyer. My inspection of the challenged documents supports Boral's submissions that Mr Sullivan acted in a legal capacity when he authored or received any of the challenged documents where Boral's claims for legal professional privilege are otherwise made out.

91 Mr Setka's submission to the effect that Boral's relationship with the CFMEU was a key strategic and/or commercial issue, and that Mr Sullivan was involved in discussions as to how best to give effect to Boral's strategic and commercial imperatives is, with respect, somewhat beside the point. The fact that Boral's complaints about the conduct of the CFMEU may have been flavoured by the political and/or ideological views of Boral's senior management, and influenced by the commercial significance of the CFMEU black ban to Boral, does not preclude Boral from claiming legal professional privilege with respect to communications concerning advice received and litigation engaged in in order to progress Boral's strategic or commercial imperatives. After all, almost all litigation is conducted in order to fulfil or progress a strategic or commercial imperative of the litigant: litigation is rarely pursued for its own sake.

92 Of course, to the extent that Boral pursued non-legal means of furthering its strategic and commercial objectives, such as lobbying governments or embarking upon public relations campaigns, communications evidencing those activities would prima facie not be protected by legal professional privilege. However, while Boral undertaking such activities might raise question marks regarding the purpose of the communications for which legal professional privilege is claimed, Boral's pursuit of both non‑legal and legal strategies to pursue its broader commercial objectives does not of itself strip away the confidentiality of otherwise privileged communications, even where there is evidence of lawyers being involved in or being informed of those non‑legal strategies. Rather, the existence of non‑legal remedies being pursued alongside legal remedies does no more than highlight the need to not take Boral's claims for legal professional privilege at face value, and for the challenged documents to be exposed to careful scrutiny.

93 It is convenient, for the purpose of discussing the question of whether Boral has discharged its onus of establishing that the challenged documents for which advice privilege has been claimed do in fact evidence communications made for the dominant purpose of Boral obtaining or receiving legal advice, to separate those challenged documents into the following categories:

(a) the Royal Commission documents;

(b) the ACCC documents;

(c) documents relating to the criminal proceeding leading up to the defendants' execution of the police statements in April 2015;

(d) documents relating to the criminal proceeding created after the defendants' execution of the police statements and prior to the commencement of the committal hearing in May 2018; and

(e) documents created during the course of and in the immediate aftermath of the committal hearing.

94 There is an overlap between the Royal Commission documents and the communications made for the purpose of Boral receiving advice regarding the issues which ultimately became the subject matter of the criminal proceeding, given that the issue of blackmail first arose at the time Boral was seeking and receiving legal advice as to what evidence to provide and submissions to make to the Royal Commission.

95 Ms Jackson gave evidence that Boral sought and received advice from HSF in relation to Boral's involvement in and contributions to the Royal Commission, the ACCC investigation and the ACCC proceeding, Project Heracles and the criminal proceeding, including the committal hearing. However, the only direct contemporaneous evidence of the role played by HSF in those matters is the HSF retainer letters and the challenged documents themselves, which cast some light on HSF's role in those proceedings and inquiries, but do not of themselves conclusively meet the submission advanced on behalf of Mr Setka to the effect that "legal advice" is a narrower concept than "professional legal services". The retainer letters also do not completely rebut Mr Setka's submissions to the effect that some or all of the challenged documents evidence communications between Boral and its legal advisors for the purpose of assisting and representing Boral in non‑curial proceedings (or curial proceedings to which it was not a party), and as such may not fall within the scope of advice privilege. Accordingly, when inspecting the challenged documents which fall into these categories, I am largely reliant upon the terms of the HSF retainer letters and the contents of the challenged documents themselves.

96 That said, in carrying out my review of the challenged documents which fall within these categories, I am cognisant that the authorities provide that a generous approach ought to be adopted when determining whether communications fall under the umbrella of advice privilege, and the continuum of communications brought into existence for the purpose of Boral obtaining and receiving legal advice can include what may seem to be routine and/or informal communications. In particular, advice privilege can protect advice as to what evidence and submissions to be put before a regulator or a commission of inquiry, advice as to what could and should be prudently done or not done in a particular legal context, and the exchange of information between a lawyer and a client for the purpose of ensuring they are both properly informed as to matters which will be the subject of legal advice.

97 However, the potential breadth of the types of communications which would be encompassed by advice privilege does not alter the requirement that the communications must be brought into existence for the dominant purpose of Boral obtaining or receiving legal advice. Further, one must always be alert to the possibility that communications are being "routed" through lawyers for purposes other than the giving or receiving legal advice, such as in an attempt to cloak the communications with a privilege they do not deserve, or, more benignly perhaps, because it is useful and convenient to have lawyers carry out tasks which, strictly speaking, do not need to be carried out by lawyers, or are tasks which might fall within the definition of professional legal services, but do not include or involve the provision of legal advice, no matter how broadly defined. As will be discussed further below, it does appear that some aspects of HSF's retainer, notably in assisting Boral with respect to its involvement in the ACCC proceeding, HSF's role appeared to be more of a co‑ordination role rather than an advisory role. Similarly, in the case of some of the documents concerning the criminal proceeding, a number of the challenged documents record communications which do not, at least on the face of the documents, evidence communications which took place which recorded or facilitated the provision of legal advice to Boral (as opposed to the defendants themselves).

98 However, there is nothing in the evidence or the contents of the challenged documents themselves to suggest the involvement of HSF in these communications was a deliberate device in order to cloak otherwise relevant communications for non‑privileged purposes with undeserved legal professional privilege. Rather, HSF's involvement in various matters arising out of the CFMEU black ban seems to have largely stemmed from the HSF's retainer for the purposes of the Royal Commission and the damages proceeding, probably because it was convenient for Boral to task HSF with overseeing and co‑ordinating various aspects of Boral's response to the CFMEU black ban, and HSF's knowledge and expertise was helpful in that regard. However, that knowledge and skill does not automatically cloak communications involving HSF with advice privilege.

99 The question of whether communications are brought into existence for the dominant purpose of a client obtaining or receiving advice often arises in the context of complex transactions or projects where a number of specialist professionals, including but not limited to legal practitioners, are involved in providing advice to the client. For example, where a client is involved in the acquisition of a business, advice is usually solicited from accountants and investment bankers as well as lawyers, while clients involved in the development of property seek advice from planners, valuers, engineers and lawyers. Similarly, questions may arise where clients seek, for example, taxation advice from multi‑disciplinary consulting firms. In those circumstances, there is often some difficulty in disentangling what communications are for the purpose of the ultimate client obtaining purely legal advice (as opposed to commercial or other specialist advice).

100 In the current application, the difficulty arises not because Boral's lawyers were members of a broader multi-disciplinary team, but rather, because Boral arguably retained lawyers to perform functions and tasks which went beyond providing legal advice, albeit in an adversarial context, where Boral pursued its grievances against the CFMEU not only in legal proceedings to which it was a party, but by assisting other entities to pursue legal remedies against the CFMEU and its officials, such as the Royal Commission, the ACCC and Victoria Police. The difficulty is compounded when a party in the position of Boral was not a party to the proceedings concerned, but where lawyers had been retained to provide professional legal services more akin to those provided by solicitors for a party to court proceedings. A further complication arises by reason of the question of the capacity in which the defendants sought and obtained legal advice from HSF regarding the police statements, as discussed further below.

101 Taking first the Royal Commission documents, my inspection of those documents, having regard to the statements in AWB v Cole[29] to the effect that documents recording or embodying advice as to what evidence should be given and documents provided to a commission of inquiry would ordinarily attract advice privilege (save, I would suggest, in the absence of any contrary indication), has confirmed that nearly all of Boral's claims for advice privilege over the Royal Commission documents ought be upheld. The only documents concerning Boral's participation in and assistance to the Royal Commission where I have not upheld Boral's privilege claims are those where the document records communications which concern mere scheduling issues, and thus do not record or evidence the provision or receipt by Boral of legal advice.

102 Turning then to the ACCC documents, here, the position is somewhat more complicated. First, there is no evidence at all of FCB having been retained by Boral to advise it upon its dealings with the ACCC, or any other evidence to that effect, save for the contents of the ACCC documents themselves. Secondly, there is no evidence of HSF being retained by Boral with respect to the ACCC investigation or the ACCC proceeding prior to November 2015. Thirdly, while some of the ACCC documents concern what witnesses and documents Boral could provide to assist with the ACCC investigation and the ACCC proceeding, which are, taking a generous view of advice privilege, protected from disclosure by advice privilege, a number of the ACCC documents recorded communications of a routine administrative nature, with HSF appearing to merely be a convenient conduit of information between the ACCC (and its lawyers) and Boral. While documents of that nature may have been the subject of a claim for litigation privilege by the ACCC, it is difficult to reach a conclusion that the mere co‑ordination of appointments for witnesses in a proceeding in which Boral was not a party can properly be regarded as communications for the purpose of Boral obtaining or receiving legal advice, even taking a generous view of the scope of advice privilege.

103 However, my inspection of the ACCC documents has revealed that some of the ACCC documents do record communications in which Boral sought or was furnished with legal advice, when one understands legal advice to include advice as to what evidence Boral should provide to the ACCC. These documents include documents authored by or provided to FCB (see discovery documents 30, 31, 39, 40, 41 and 42). While there is no direct evidence that FCB was expressly retained by Boral to advise upon the ACCC investigation and Boral's dealings with the ACCC generally, the contents of the documents concerned show that FCB was in fact providing such advice, presumably as an adjunct to its retainers with respect to the contempt proceeding and the damages proceeding. Accordingly, I have upheld Boral's claim for advice privilege over the challenged documents which record communications between Boral and its lawyers for the purpose of determining what evidence should be provided to the ACCC, but not Boral's claims over documents which evidence routine correspondence about scheduling matters.

104 Further complications arise when considering documents recording communications made in connection with Project Heracles and the criminal proceeding, including the committal hearing. Taking first the challenged documents brought into existence prior to the defendants' execution of their police statements, my inspection did confirm that some of the challenged documents recorded advice given to Boral regarding the alleged criminal conduct of Messrs Setka and Reardon at the Auction Rooms meeting. Further, there are also documents recording communications which I accept were made for the dominant purpose of providing legal advice regarding what documents and other assistance Boral should provide to Victoria Police, and one or other of the defendants have been on occasion a party to those communications. Such communications do fall within the scope of advice privilege, and thus Boral's claims in that regard have been made out.

105 However, I cannot see how communications between HSF and the defendants for the purpose of HSF reviewing and commenting upon drafts of the police statements could be characterised as communications made for the purpose of HSF providing Boral with legal advice. While the defendants were senior executives with Boral, and attended the Auction Rooms meeting on behalf of Boral, in the criminal proceeding, they were not "representing" Boral, but were witnesses of fact. It was not claimed or suggested that HSF were representing or advising the defendants, or either of them. Accordingly, I will not uphold Boral's claims for advice privilege for challenged documents where the communications involved HSF reviewing and commenting upon the defendants' draft police statements after they were provided to the defendants by the police on 3 April 2015. I am not satisfied that the dominant purpose of those communications were for the purpose of Boral receiving legal advice. My view is bolstered by the contents of some of the challenged documents where I have upheld Boral's claims for advice privilege. Given that I have upheld Boral's claims for advice privilege over these documents, it is not appropriate to canvass their contents in any detail. However, I can say that, while the defendants were of course senior employees of Boral, the defendants (and other Boral employees) were independent witnesses of fact in the criminal proceeding, and HSF does not appear to have provided Boral's management (including Mr Sullivan) advice regarding what statements the defendants would be providing to the police regarding what transpired at the Auction Rooms meeting.

106 Further, some of the communications between HSF and the defendants (either directly or through Mr Sullivan) following the defendants' execution of their police statements and the commencement of the committal hearing largely concerned scheduling issues. While in some circumstances HSF reporting upon developments in the criminal proceeding and the ACCC proceeding fall within the scope of advice privilege, and I have found that some of the challenged documents of that nature are protected by advice privilege, it seems to me to be difficult to conclude that communications of a routine character, with the apparent purpose of notifying the defendants when they might be required to attend court in their capacity as witnesses at the committal hearing, are communications brought into existence for the purpose of Boral obtaining or receiving legal advice.

107 Accordingly, I have not upheld Boral's claims for advice privilege over documents relating to the criminal proceeding which largely concern scheduling and other like matters. Also, there is a further document concerning arrangements for Mr Head's representation at the committal hearing (see discovery document 139) which, while authored by Mr Sullivan, does not record or evidence any legal advice from Mr Sullivan or HSF to Boral.

108 The final group of documents relating to the criminal proceeding are the regular (once or twice daily) reports of what took place during the course of the committal hearing provided by HSF to Mr Sullivan ('committal hearing reports'). One can understand why Mr Setka challenged Boral's claims for advice privilege over what might be seen as mere reports, where HSF was arguably tasked with providing the committal hearing reports for reasons of convenience rather than their legal skills and/or advisory role, and in the absence of any firsthand evidence regarding Boral's purpose in retaining HSF to attend and report upon the committal hearing.

109 However, upon my inspection of the committal hearing reports, and upon some reflection as to the circumstances subsisting at the time, I am satisfied that the committal hearing reports were brought into existence for the dominant purpose of either or both of HSF or Mr Sullivan providing Boral with legal advice concerning the committal hearing. It is apparent from some of the challenged documents which are plainly protected by advice privilege that Boral might require legal advice regarding specific developments during the course of the committal hearing. Indeed, Boral did seek and obtain such advice, including advice with respect to a challenge to Boral's claims for privilege mounted by Messrs Setka and Reardon during the course of the committal hearing. Accordingly, while the matter is not free from doubt, on balance I am satisfied that the committal hearing reports are communications made for the purpose of HSF and Boral exchanging information for the purposes of HSF providing legal advice to Boral.

110 Mr Setka, understandably, has queried Boral's claims for privilege where neither the author or recipient of the documents recording the communications are lawyers. As noted by Boral in its submissions, a number of these documents are said to be protected from disclosure by litigation privilege. My inspection of the challenged documents confirms that Boral has made good its claims with respect to each of the challenged documents for which litigation privilege has been claimed, which in turn make up most of the documents which fall into categories (f) and (g) of the categories of challenge.

111 The question of whether any of the challenged documents fall within the scope of the fraud exception can be dealt with quite promptly. First, I accept Boral's submissions to the effect that, in order for the fraud exception to have any application, there must be some evidence that Boral itself had committed, or was knowingly involved in, any fraud, and in this proceeding, the allegations are directed at the defendants personally. I agree that the evidentiary support for such proposition is limited, and any such conclusion could only amount to inferences drawn from inferences, at most. Secondly, upon my inspection of the challenged documents (which, on Mr Setka's submissions, could only include documents within date range of June 2014 to mid‑April 2015, when the defendants finalised their police statements), I did not identify any document which could fall within the fraud exception. In any event, given that I have not upheld Boral's privilege claims with respect to the communications between HSF and the defendants concerning the drafting and finalisation of their police statements, the point is probably moot.

(a) Boral's claims for litigation privilege with respect to a substantial number of the discovery documents have been upheld. These documents include communications between non‑lawyers within Boral which were clearly made for the purpose of Boral gathering evidence for use in the damages proceeding or the contempt proceeding, and also include reports on key developments and future steps in those proceedings;

(b) where Boral has claimed advice privilege over documents concerning the Royal Commission, the ACCC investigation and the ACCC proceeding, I have distinguished between communications between Boral and its solicitors for the purposes of determining what evidence (including documentary evidence) and submissions ought be provided to the Royal Commission and/or the ACCC, and documents which merely concern scheduling and like issues, with Boral's claims for privilege over the latter class of documents not being upheld; and

(c) with respect to the documents concerning the criminal proceeding, these documents fall into the following categories:

(i) communications recording or concerning the initial advice which was provided to Boral regarding the potential criminal liability of Messrs Setka and Reardon arising out of the Auction Rooms meeting, which I have held to be protected by advice privilege;

(ii) communications between HSF and the defendants regarding the finalisation of the police statements after 3 April 2015, which I have held not to be protected by advice privilege;

(iii) communications between HSF and the defendants in the lead up to the committal hearing concerning scheduling issues, which I have also held not to be protected by advice privilege; and

(iv) reports and other legal advice provided by HSF to Boral during the course of the committal hearing, which I have held to be protected by advice privilege.

113 The results of the inspection are summarised in Annexure B to these reasons, which contains an amended, colour-coded version of the schedule. In the schedule, documents where I have concluded that Boral's claim for litigation privilege is made out are coloured in light green, for the reasons given in paragraph 85 of these reasons. Documents where I have upheld Boral's claim for advice privilege are coloured bronze. Documents shaded yellow are privileged only in part and will need to be produced to Mr Setka, albeit with appropriate redactions.

114 Annexure C to these reasons contains a schedule containing a subset of the challenged documents where I have not upheld Boral's claims for legal professional privilege, with brief reasons with respect to each of those documents in addition to the reasons already provided with respect to the documents referred to in paragraphs 112(c)(ii) and (iii) above, in addition to a small number of sundry documents. The nature of the application and the possibility of an appeal means that it is not appropriate to go into further detail in the reasons concerning individual documents.

115 For the avoidance of doubt, Annexures B and C will be provided to the parties along with these reasons, but will not be annexed to the publicly available version of these reasons.

116 Draft orders will be provided to the parties to give effect to these reasons.

[1] Setka v Dalton [2020] VSC 521. At this time, Mr Shaun Reardon, another official with the CFMEU, was also a plaintiff in this proceeding, but has withdrawn his claim after reaching a compromise with the defendants.

[2] A diagram providing an approximate timeline of the relevant events is Annexure A to these reasons.

[3] Alphington Developments Pty Ltd v Amcor Limited (No 2) [2018] VSC 293.

[4] AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382 ('AWB v Cole').

[5] My reference to the "reliability" of Ms Jackson's evidence should not be taken to suggest that Ms Jackson's evidence was untruthful or indeed was alleged to be untruthful. Rather, Mr Setka challenged the capacity of Ms Jackson to give evidence that could be relied upon to support Boral's privilege claims, given that she was not the author or recipient of any of the challenged documents, and there is no evidence that she had an involvement in matters concerning Boral and the CFMEU during the relevant period.

[6] The evidence shows that a copy of Mr Dhanji's advice was provided by Boral to the solicitors assisting the Royal Commission. During the course of the hearing of the current application, Boral conceded that it had waived any privilege in this document by reason of its disclosure to the Royal Commission.

[7] As a result of this evidence, and the terms of the retainer letter, during the course of the hearing of the current application, Mr Setka withdrew his challenge to a document provided to Cannings based upon an assertion that Boral had waived any legal professional privilege in that document, but still pressed his challenge to the document concerned on other grounds.

[8] Given the concessions made by the parties during the course of the hearing of the application, it is not necessary to canvass the evidence and submissions regarding the question of whether Boral had waived any privilege in any of the challenged documents.

[9] See ASIC v RI Advice Group Pty Ltd [2020] FCA 1277 [40].

[10] BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181 [64].

[11] See Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited [2013] VCA 998 [38].

[12] [2016] NSWSC 12.

[13] Cargill Australia Pty Ltd v Viterra Malt Pty Ltd (No 8) [2018] VSC 193 [64].

[14] See AWB Ltd v Cole [2006] FCA 571; [2006] 152 FCR 382 [100].

[15] [2021] VSC 6.

[16] [2006] FCA 1234; (2006) 155 FCR 30 [44].

[17] [2021] FCA 512.

[19] [2016] NSWSC 12.

[20] Ibid [7] (citations omitted). See also ACCC v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232 [49]; ASIC v RI Advice Group Ltd [2020] FCA [42]-[43], and the authorities referred to in that discussion.

[21] [2008] VSCA 59.

[23] [2013] FCA 998.

[25] [2018] VSC 193.

[27] [2008] VSCA 59.

[28] See Balabel v Air India [1998] 2 All ER 246.

[29] [2006] FCA 571; (2006) 152 FCR 382.