Plaintiffs v Defendants

Supreme Court of Victoria|2016-08-25|Before: ELLIOTT J

PRACTICE AND PROCEDURE - Discovery - Legal professional privilege - Advice privilege - Litigation privilege - Dominant purpose - "Client" - Whether litigation anticipated - Class action - Investigation by solicitors before and after relationships with a client - Law firm as client - Earlier proceeding - Report by expert concerning some allegations in earlier proceeding - Voluntary confidential disclosure - Involuntary general publication - Compulsory discovery in this proceeding - Waiver - Inconsistent conduct -Communications concerning funding agreement with solicitors and internally - Funder - Legal advice to funder without formal retainer - Evidence Act 2008 (Vic), ss 117, 118, 119, , , .

1 Applications have been made to challenge claims for legal advice privilege and litigation privilege over documents discovered in this proceeding.

2 The first plaintiff, IOOF Holdings Ltd ("IOOF Holdings"), and the second plaintiff, IOOF Service Co Pty Ltd ("IOOF Service")[1] (together, "IOOF"), are companies within the IOOF group of companies, whose business includes trading in securities. IOOF has its own internal investigations team, which monitors and investigates the conduct of IOOF employees, or the conduct of third parties whose activities may affect IOOF's business.

3 The first defendant, Maurice Blackburn Pty Ltd ("Maurice Blackburn") conducts a legal practice. The second defendant, Harbour Litigation Funding Ltd ("Harbour") is a litigation investment advisory company that advises with respect to investment funds of others. Harbour makes recommendations to the investment committee of certain other entities in what was described by Harbour's senior counsel as "the group" ("the Investment Committee").

4 IOOF challenged privilege claims made by each of Maurice Blackburn and Harbour (together, "the Defendants"). Further, Maurice Blackburn challenged privilege claims made by IOOF. No challenge was made by Harbour to any claims for privilege.

5 On 14 December 2015, IOOF commenced this proceeding against Maurice Blackburn and Harbour. IOOF allege the Defendants have received documents which contain information confidential to IOOF ("the IOOF Information"). Further, IOOF allege both the Defendants knew, suspected or ought reasonably to have known, that they had obtained the IOOF Information without IOOF's authorisation or permission. IOOF seek orders requiring the Defendants to deliver up all relevant documents, together with interlocutory and permanent injunctions restraining the Defendants from using or disclosing the IOOF Information.

6 Speaking broadly, IOOF's allegations are denied by Maurice Blackburn. Further, Maurice Blackburn alleges that any disclosure was in accordance with IOOF's "Whistleblower Policy". In short, Maurice Blackburn alleges the IOOF Information was disclosed for legitimate purposes; namely, reporting allegedly inappropriate, including unlawful, conduct with respect to IOOF's affairs and business. Maurice Blackburn further alleges that certain documents containing the IOOF Information are in the public domain and any quality of confidence has been lost.

7 Harbour makes a series of admissions in its defence, including that it had no authorisation from IOOF to obtain or receive the IOOF Information. However, Harbour denies it knew, suspected or ought reasonably have known it had obtained confidential information, and denies it has caused IOOF any loss.

8 On 29 January 2015, a former employee of IOOF ("Employee A") commenced a proceeding against IOOF,[2] by making an application to the Fair Work Commission seeking "an order to stop bullying" ("the Fair Work Proceeding").[3] Employee A made serious allegations concerning the conduct of another employee of IOOF ("Employee H"), including involvement in insider trading and plagiarism.[4]

9 On 26 February 2015, certain directions were given by the Fair Work Commission. As a result of these directions, Employee A provided further particulars of his claim.

10 It was in the context of the Fair Work Proceeding that IOOF's general manager of legal, risk and compliance, Andrew Vine ("Vine"),[5] engaged PricewaterhouseCoopers ("Pricewaterhouse")[6] in March 2015 ("the First Engagement"). Pursuant to the First Engagement, Pricewaterhouse was retained to gather and analyse certain information (such as transaction records of share trades and research reports) that was the subject of the Fair Work Proceeding.

11 On 27 March 2015, at a directions hearing, the Fair Work Commission made orders and directions, including the following:

There is a direct connection between the regulatory aspects of the alleged conduct [of Employee H] and it is appropriate that IOOF Holdings be permitted to have the investigation by [Pricewaterhouse] undertaken and finalised. The investigation will be relevant to its position, may be relevant to the Commission's ultimate determination of the matter, but is not a substitute for the ultimate decision of the Commission on the alleged conduct.

(Emphasis added.)

12 IOOF Holdings sought that the Fair Work Proceeding be held in abeyance pending the outcome of the investigation by Pricewaterhouse. Employee A resisted this. It was directed that the Fair Work Proceeding should be assigned to a member to commence preparations to hear and determine the matter as the member considered appropriate. Liberty was also granted to IOOF Holdings to "seek that the arrangements leading to the determination of the [Fair Work Proceeding] contemplate the completion of the [proposed] investigation prior to the point of being required to file any submission or evidence".

13 On 30 March 2015, Pricewaterhouse forwarded to IOOF Holdings a letter addressed to Vine entitled "Engagement Letter - Forensic Assistance". The letter stated that Pricewaterhouse would provide forensic assistance to IOOF Holdings in investigating the allegations that had been made. More specifically, it was stated that IOOF wanted to investigate whether there was any evidence from the past 6 years that Employee H had engaged in insider trading, or plagiarised material in producing research reports.

14 In the letter, Pricewaterhouse stated that, depending on the results of the investigation, a formal report detailing the findings could be provided, which might include the preparation of a brief for referral to "law enforcement/regulator".

15 Pricewaterhouse's "Terms of Business" were attached, which included a term whereby the parties agreed not to disclose each other's confidential information, except for disclosures required by law or confidential disclosures under the parties' respective policies.

16 Vine accepted Pricewaterhouse's offer on behalf of IOOF. In this proceeding, Vine swore that, in entering into the First Engagement on behalf of IOOF, his dominant purpose was to have material gathered that could then be used in the Fair Work Proceeding.[7]

17 Pricewaterhouse's written report in respect of the First Engagement ("the May Report")[8] was provided to IOOF in approximately late May 2015, around the same time Employee A's employment contract was terminated and the Fair Work Proceeding came to an end.[9] The May Report was not relied upon or produced in the Fair Work Proceeding.

18 On Saturday 20 June 2015, the first of a number of articles was published in the press, reporting on matters concerning Employee A's allegations. On 22 June 2015, IOOF Holdings' share price fell from $10.66 to $9.24, and continued to fall for a further period of time.

19 At around this time, representatives of Maurice Blackburn, including 1 of its principals,[10] Brooke Dellavedova ("Dellavedova"), were in contact with Harbour's senior director of litigation funding, Stephen O'Dowd ("O'Dowd").[11] O'Dowd was visiting Australia for reasons independent of matters concerning IOOF. Representatives of Maurice Blackburn and Harbour met in Melbourne and Sydney between around 21 and 24 June 2015.

20 On about 25 June 2015, Dellavedova was asked by the head of Maurice Blackburn's "class actions department" to lead an investigation into a potential class action against IOOF by a class of IOOF Holdings' shareholders ("the Potential Class Action").[12] Dellavedova commenced the investigation shortly after this request.

21 On the morning of 25 June 2015, Dellavedova sent an email to O'Dowd stating she had been appointed to "oversee our work up of the potential matter against IOOF". Dellavedova asked O'Dowd for details of Harbour's selection process and timing requirements. One of the responses from Harbour included a non-disclosure agreement for execution by Maurice Blackburn. Harbour indicated the next meeting of the Investment Committee was scheduled for 16 July 2015.

22 On 26 June 2015, Dellavedova sent a "signed common interest and confidentiality agreement" to Harbour. Dellavedova noted that the agreement contemplated the applicant being "the party issuing the proceeding" but that "[f]or the time being" Maurice Blackburn had been named as the applicant. Dellavedova stated that if the matter proceeded, the plaintiff could sign an agreement as well.

23 On the same day, Harbour sent an email to Maurice Blackburn which attached, amongst other things, Harbour's standard form funding agreement for Australia, its standard form relationship agreement and its "common interest and confidentiality deed".

24 In late June 2015, O'Dowd asked Dellavedova to provide Harbour with a legal analysis of the prospects of success. From these discussions, O'Dowd understood, in addition to Harbour obtaining counsel's advice, Maurice Blackburn itself would be providing legal advice on the merits of the Potential Class Action. At the time, Dellavedova did not consider there was a traditional client/lawyer relationship between Harbour and Maurice Blackburn. Dellavedova expected Harbour was taking its own advice. Dellavedova understood O'Dowd's request was made so the legal analysis could be provided to the Investment Committee, so it could decide on whether Harbour would provide litigation funding.

25 The Dellavedova Affidavit states that, at the time she instructed others to assist her in preparing a memorandum to Harbour, Dellavedova "took as the starting point (and instructed others to take) the internal Maurice Blackburn legal analysis and documents already prepared for the purpose of determining whether a potential claim existed" (emphasis added). There was no suggestion that the documents being referred to, that were already in existence, were prepared to brief counsel.[13]

26 In July 2015, Dellavedova continued to communicate with O'Dowd about the possibility of Harbour providing litigation funding.

27 On 7 July 2015, Maurice Blackburn provided a memorandum to Harbour on a confidential basis. This did not include any advice from counsel. The first draft of this memorandum, entitled "Potential Action Against [IOOF Holdings] - July 2015", was dated 1 July 2015.

28 Although the exact timing is unclear, probably early in July 2015, Dellavedova became satisfied that a potential claim existed and that advice from counsel was warranted. The first of the documents identified by Dellavedova as being referable to briefing counsel is dated 1 July 2015. There is no specific evidence[14] that any internal working documents the product of her investigation had been created by Dellavedova to this point in time.[15]

29 Dellavedova instructed Maurice Blackburn employees to assist in preparing a brief to counsel to advise on the prospects of the Potential Class Action.

30 On 7 July 2015, Employee A's allegations in the Fair Work Proceeding were the subject of questions before the Senate Standing Committee known as the Senate Economics References Committee ("the Standing Committee"). Before this Standing Committee hearing took place, not only had there been media coverage about the allegations,[16] but an investigation and a review had been carried out by the Australian Securities and Investments Commission ("ASIC") and the Australian Prudential Regulation Authority ("the Prudential Authority") respectively.[17] However, to this point in time, none of the published material included the Pricewaterhouse analysis the subject of the May Report, which had remained confidential.

31 On 9 July 2015, the managing director of IOOF Holdings, Christopher Kelaher ("Kelaher"), wrote to the principal research officer of the Standing Committee. Kelaher referred to his own appearance before the Standing Committee on 7 July 2015, and suggested members of the Standing Committee had referred to IOOF's confidential documents when asking questions. Kelaher suggested it would be unfair for the Standing Committee to rely on the contents of these documents and other materials obtained by the Standing Committee without first giving IOOF an opportunity to review the information and provide comment. Copies of all relevant documents and materials were sought.

32 In response, the principal research officer said he would pass on IOOF's request to the Standing Committee. He also stated that the Standing Committee had requested a copy of the May Report, which had been referred to at the hearing on 7 July 2015. The research officer asked Kelaher to forward a copy of the May Report.

33 In providing the May Report, Kelaher stated in a covering letter that the May Report "contains information which is confidential to IOOF".[18] A specific request was made that the Standing Committee treat the May Report as confidential and that it not make the May Report or its contents publicly available. Kelaher contemplated that the May Report might be utilised by the Standing Committee, but requested that it be tabled "in an 'in camera' sitting". The covering letter did not expressly refer to the subject of privilege.

34 Contrary to IOOF's request for confidentiality to be maintained, on 31 July 2015 the contents of the May Report were published on the Standing Committee's website.[19] Naturally, once the May Report had become public knowledge (except for the names that were redacted), the document lost the confidentiality necessary to maintain a claim for privilege.[20] Consequently, no privilege was claimed when the May Report was discovered in this proceeding by IOOF.[21]

35 In late July 2015, Vine engaged Pricewaterhouse on behalf of IOOF to undertake further analysis of IOOF's trading records and other data in respect of the allegations made by Employee A ("the Second Engagement").[22] There were also 2 other matters arising from the First Engagement that Vine directed to be the subject of the Second Engagement.

36 Meanwhile, Maurice Blackburn was progressing with the investigation and analysis of the Potential Class Action. On 14 July 2015, Dellavedova and others from Maurice Blackburn held a telephone conference with Employee A. The following day, a brief was sent to counsel. Dellavedova agreed with the proposition put to her that, when Maurice Blackburn briefed counsel, it had already internally formed a positive view about the prospects of the Potential Class Action.

37 During the course of its work concerning IOOF, in around mid-July 2015, issues arose for Maurice Blackburn itself regarding confidentiality and other potential legal issues that may have arisen from its communications with Employee A ("the Confidentiality Issues"). Dellavedova and another principal instructed a Maurice Blackburn employee lawyer to undertake research and to report back on the Confidentiality Issues. The other principal involved also spoke with counsel on the subject matter.

38 On 16 July 2015, a meeting of the Investment Committee was held.[23] On the same day, the funding of the Potential Class Action was approved subject to certain conditions, including obtaining a positive opinion from counsel.[24]

39 From 25 June 2015 to 16 July 2015 ("the First Period"), Maurice Blackburn did not have a client who might have become a claimant with respect to the IOOF matters Dellavedova was investigating. On 17 July 2015, a principal of Maurice Blackburn, Jacob Varghese ("Varghese"), received oral instructions from a shareholder of IOOF ("the First Client") for Maurice Blackburn to investigate the Potential Class Action on its behalf. The First Client, an institutional investor, had previously retained Maurice Blackburn in shareholder class actions, including before any proceeding had been commenced.[25]

40 To elaborate, in the morning on 17 July 2015, the First Client informed Varghese that, the First Client would check if it had purchased shares in IOOF Holdings in the relevant period before 20 June 2015, and, if it had, it would be likely that the First Client would want to participate in any shareholder class action to recover compensation. It appears the necessary checks were made by the First Client as, in the afternoon on 17 July 2015, Maurice Blackburn received instructions from the First Client to undertake an investigation to determine whether any class action proceeding could and should be issued against IOOF. During this discussion, reference was made to billing arrangements that would apply to work done. The likelihood of a litigation funder being involved was also discussed.

41 Immediately after receiving these instructions, Varghese informed Dellavedova and others at Maurice Blackburn that the First Client's instructions had been received. No written retainer was entered into at this time. Further, no new file was created, as there was already a file in Maurice Blackburn's management system for the Potential Class Action.

42 After receiving the First Client's instructions, Dellavedova and others at Maurice Blackburn conducted work required to determine whether or not a proceeding should be commenced. Effectively, this was a continuation of work already performed. Dellavedova did not speak with, or write to, the First Client. Further, Dellavedova could not identify any document the subject of the claim for privilege on behalf of the First Client that was actually given to the First Client. It was not until 19 February 2016 that the First Client executed a written retainer with Maurice Blackburn in relation to the Potential Class Action, at which time the First Client also executed a funding agreement with Harbour.[26] Dellavedova understood from discussions with Varghese that the First Client did not expect to pay for all of the investigation work to be carried out.

43 Between 17 July 2015 and 7 October 2015 ("the Second Period"), the First Client was the only prospective claimant with respect to the Potential Class Action who had retained Maurice Blackburn.

44 On 8 October 2015, Maurice Blackburn publicly announced that it was investigating the Potential Class Action.[27] At a press conference, Dellavedova stated that Maurice Blackburn had been speaking to a variety of people about the Potential Class Action and that Maurice Blackburn was "gauging [the] interest" of IOOF shareholders. At this time, Maurice Blackburn published an online registration portal. After 8 October 2015, clients in addition to the First Client registered their interest in the Potential Class Action with Maurice Blackburn ("the Further Clients").

45 On 13 October 2015, King & Wood Mallesons (retained by IOOF before late July 2015 to advise on matters relating to the allegations made by Employee A) sent a letter to Maurice Blackburn referring to previous media releases. The letter expressed concern that Maurice Blackburn had come into possession of the IOOF Information. Certain requests and demands were made on behalf of IOOF regarding the IOOF Information. Further correspondence was exchanged before the proceeding commenced.

46 The following provisions of Divisions 1 and 4 of Part 3.10 of the Evidence Act 2008 (Vic) are relevant:

117 Definitions

(1) In this Division:

client includes the following:

(a) a person or body who engages a lawyer to provide legal services or who employs a lawyer[28] (including under a contract of service);

(b) an employee or agent of a client;

...

118 Legal advice

Evidence is not to be adduced[29] if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication[30] made between the client and a lawyer; or

(b) a confidential communication made between 2 or more lawyers acting for the client; or

(c) the contents of a confidential document[31] (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

119 Litigation

Evidence is not to be adduced[32] if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or

(b) the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.[33]

...

122 Loss of client legal privilege: consent and related matters

...

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

(3) Without limiting subsection (2), a client or party is taken to have so acted if:

(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or

(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.

(4) The reference in subsection (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.

(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because:

(a) the substance of the evidence has been disclosed:

(i) in the course of making a confidential communication or preparing a confidential document; or

(ii) as a result of duress or deception; or

(iii) under compulsion of law; or

(iv) ...

(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or

(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

...

Loss of client legal privilege-related communications and documents

If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document.

...

133 Court may inspect etc. documents

If a question arises under this Part relating to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question.

47 The principles applicable to these types of applications are not controversial:

(1) The party claiming the privilege bears the onus. That onus will only be discharged if the party establishes facts from which the court may determine that the privilege is being properly claimed.[34]

(2) "Purpose" in "dominant purpose" means the purpose which led to the creation of the document or the making of the communication.[35]

(3) The "dominant purpose" is the purpose which was the ruling, prevailing or most influential purpose[36] at the time the document was brought into existence.[37]

(4) There can be only 1 dominant purpose. If there are 2 purposes of equal weight, neither fits the description of a "dominant purpose".[38]

(5) If a dominant purpose existed, that dominant purpose must be determined objectively, having regard to the evidence, the nature of the document and the parties' submissions.[39] That said, evidence of the subjective purpose of the person making the communication or creating the document is relevant.[40]

(6) Ordinarily, the relevant purpose is that of the person who brings into existence the document which includes the privileged communication, but this will not always be the case.[41]

(7) As the test is directed towards the purpose of bringing the document into existence, a copy of a non-privileged document may be privileged.[42]

(8) The material relied upon by the person claiming privilege must be focused and specific. Formulaic and bare conclusory assertions are not sufficient.[43]

(9) With respect to advice privilege, in considering whether a communication is for the purposes of legal advice, the purposes must be construed broadly.[44] Although it does not extend to pure commercial advice, legal advice, in this context, includes any advice as to what should prudently and sensibly be done in the particular legal circumstances in which the client finds itself.[45]

(10) Further to subparagraph (9), a document created by a lawyer that records her or his legal work carried out for the benefit of the client, such as a research memorandum, a summary of documents or a chronology, will be protected by privilege whether or not the document is provided to the client. Similarly, notes and other material created by the client that relate to the legal advice sought (whether or not actually communicated to the lawyer), or that relate to communications with the lawyer, may be privileged where such documents meet the relevant "dominant purpose" test.[46]

(11) With respect to litigation privilege, for a proceeding to be "anticipated or pending" for the purposes of s 119, there must be more than a mere possibility of litigation. As a general rule, there must be a real prospect of litigation, but it does not have to be more likely than not.[47]

(12) Many claims for privilege may be determined by the court without the need to inspect the documents. Further, ordinarily, the court will not examine the documents if the party claiming privilege has not established a basis for the claim in an affidavit in support. However, in an appropriate case, the court may examine the documents to make a decision about privilege, particularly where the parties agree to this course.[48]

(13) A law firm or a company may be a "client" if it engages or employs its own employee lawyer,[49] but privilege will only attach to the relevant communication or document if the employee is consulted confidentially in her or his professional capacity, with the requisite degree of independence, in relation to a professional matter.[50]

48 With respect to waiver of privilege, and s 122(2) of the Evidence Act, a person may be taken as acting inconsistently with maintaining privilege by reason of the following:

(1) Partial disclosure of communications or documents, while claiming privilege over the remainder.[51]

(2) A party making an assertion as part of its case that puts privileged communications or the contents of privileged documents in issue, or necessarily lays them open to scrutiny.[52]

Further, a waiver of advice privilege extends to the documents and information which were taken into account in formulating, or which otherwise underpinned or influenced, the legal advice no longer the subject of privilege.[53]

49 By agreement, all documents the subject of a privilege claim were produced to the court so that those documents might be inspected by the court if such an inspection assisted in determining the issue with respect to any document. Further, the parties provided a list of documents comprising examples in each category of documents of the opposing party that the court was specifically invited to inspect.

50 IOOF has claimed privilege with respect to 12 categories of documents:[54]

(1) Categories 1 to 4 relate to the First Engagement. The privilege claimed is litigation privilege under s 119 of the Evidence Act. This is because the product of the First Engagement, including the information gathered, was claimed to be for the dominant purpose of assessing some of the allegations made by Employee A, and to prepare IOOF's defence and evidence in the Fair Work Proceeding. This was also claimed to be the dominant purpose for related communications and documents concerning the First Engagement.[55] Additionally, IOOF alleged that another purpose of the material was that it formed "part of the factual or evidentiary basis" for Vine to provide legal advice to IOOF's board and senior management.[56] These categories may be broadly described as follows:

(a) Category 1, being emails and attached copy documents, relating to defining or agreeing the scope and terms of the First Engagement, and which were exchanged between Vine and Pricewaterhouse, or IOOF's then company secretary and Pricewaterhouse.[57]

(b) Category 2, being emails and attached copy documents, which concerned requests from Pricewaterhouse for "documents and/or information required by [Pricewaterhouse] for the purpose of" the First Engagement.[58] The emails were primarily exchanged between Vine and Pricewaterhouse.

(c) Category 3, being emails and attached copy documents, relating to Pricewaterhouse's reports to Vine on the progress and findings of the First Engagement.[59] All these emails were sent between Vine and Pricewaterhouse.

(d) Category 4, being emails and attached copy documents, exchanged between Vine and Pricewaterhouse from late April to late May 2015, to enable the finalisation of the May Report.[60]

(2) Categories 5 to 8 relate to the Second Engagement, which IOOF alleged was undertaken for the dominant purpose of enabling Vine and King & Wood Mallesons to provide legal advice to IOOF.[61] That advice was said to relate specifically to the inquiry by the Standing Committee, the investigation by ASIC and the review by the Prudential Authority. These various activities were all conducted after the Fair Work Proceeding, which concluded around the end of May 2015.[62] IOOF makes the claim for privilege in relation to these categories under s 118 of the Evidence Act,[63] as follows:

(a) Category 5, being emails and attached copy documents, which were sent to define and agree the scope and terms of the Second Engagement. The emails were exchanged between Vine and Pricewaterhouse.[64] One or more of these emails were copied to IOOF's general counsel, Gary Riordan ("Riordan"),[65] and a partner at King & Wood Mallesons.

(b) Category 6, being emails and attached copy documents, exchanged between Vine and Pricewaterhouse from late August to mid-September 2015, relating to the provision by IOOF of documents or information required by Pricewaterhouse to undertake the Second Engagement.[66]

(c) Category 7, being emails, exchanged between Vine and Pricewaterhouse from mid-September to mid-October 2015 relating to the "progress and findings" of the Second Engagement.[67]

(d) Category 8, being emails and attached copy documents, exchanged between Vine and Pricewaterhouse from late October 2015 to early February 2016 relating to the provision by Pricewaterhouse of a draft report in respect of the Second Engagement.[68]

(3) Category 9 comprises documents relating to advice from 2 external lawyers from the law firm Hall & Wilcox in relation to the Fair Work Proceeding. Notwithstanding its earlier position, in written submissions filed 23 May 2016 ("the Maurice Blackburn Outline of Submissions") Maurice Blackburn indicated the documents in this category were no longer the subject of challenge.[69]

(4) Categories 10 to 12 relate to 3 IOOF internal investigations:

(a) Category 10 comprises an email and an attached copy document, concerning an investigation into the conduct of an IOOF employee ("Employee B").[70] The email was sent by an IOOF employee to IOOF's head of investigations. The investigation had been requested by Riordan for the "dominant purpose, if not the sole purpose" of enabling Riordan to determine whether there had been unlawful conduct and to advise IOOF's senior executives as to "what, if anything, needed to be done, as a matter of law, in response to this conduct". Riordan reviewed and considered the attached information "at the time that [Riordan] provided legal advice to IOOF".[71] In the Maurice Blackburn Outline of Submissions, Maurice Blackburn listed documents that it no longer sought to be produced as the challenge to the privilege claim was no longer pressed at this stage. This had the effect of excluding all documents in Category 10 from the present dispute.[72]

(b) Category 11 comprises approximately 70 documents, including emails, minutes, memorandums, statements, a spreadsheet, a handwritten note and a report from Riordan. A large number of these documents are copy documents, which were "attached and sent for the purpose of enabling [Riordan] to provide legal advice to IOOF's senior executive team ...".[73] All the documents were generated between 31 December 2008 and late August 2009 and relate to an investigation commissioned and supervised by Riordan, concerning allegations of insider trading made against Employee H. Privilege was claimed under s 118. Riordan swore that he was the "recipient or sender of the vast majority of the communications and documents listed"[74] and that the other documents included in this category were said to be generated by others as part of the investigation, conducted by IOOF's head of investigations, to enable Riordan to provide legal advice to IOOF.[75] In the Maurice Blackburn Outline of Submissions, most of the challenges to this claim were withdrawn.[76]

(c) Category 12 comprises approximately 25 documents, including emails, memorandums and statements relating to an investigation of another IOOF employee ("Employee Y").[77] Thirteen of these documents are copy documents, which were "attached and sent for the purpose of enabling [Riordan] to provide legal advice to IOOF's senior executive team ..." regarding the Employee Y investigation. The documents were generated between early April and late May 2009. Riordan was either the recipient or sender of some of the communications and documents, and swore that he believed that the other documents included in this category "form[ed] part" of the investigations into Employee Y's conduct by IOOF, all of which were for the dominant purpose of enabling Riordan to provide legal advice to IOOF.[78] It appears from the Maurice Blackburn Outline of Submissions that none of the challenges was maintained.[79]

51 Maurice Blackburn challenged the claims for privilege on the following grounds:

(1) Maurice Blackburn submitted that the documents described in Categories 1 to 4 are not privileged on the basis that the May Report (which the documents in Categories 1 to 4 underlie) was not, itself, privileged.[80] This contention was partly based upon the fact that IOOF sought to hold the Fair Work Proceeding in "abeyance" while the May Report was being prepared.[81]

(2) Even if these documents were originally privileged, Maurice Blackburn submitted that they should be produced in any event pursuant to s 122 of the Evidence Act (that is, either s 122 alone or s 122 in conjunction with s 126) as IOOF has acted inconsistently with the maintenance of its privilege claims.[82] This alleged inconsistency arises from the fact that IOOF has discovered the May Report in this proceeding without a claim for privilege and, therefore, it was submitted the substance of the content of these documents.[83] In particular, Maurice Blackburn focused on certain parts of the May Report, which refer to updates provided by Pricewaterhouse and to other materials received in compiling the May Report.

(3) Further, in relation to Category 1, Maurice Blackburn submitted that IOOF has acted inconsistently with its privilege claims by exhibiting the retainer letter for the First Engagement to Vine's First Affidavit. This letter discloses the terms and scope of that engagement (being the subject of the documents in Category 1).[84] Maurice Blackburn also submitted that IOOF has put the scope and terms of the First Engagement in issue by relying on allegations regarding the First Engagement in order to make out its privilege claims.[85]

(4) Maurice Blackburn submitted that Categories 5 to 8 are not privileged under s 118 of the Evidence Act[86] as it contended no privilege attaches to communications between the client or lawyer and another person, and these documents solely comprise communications between IOOF and Pricewaterhouse.[87] Even if the documents were to fall within s 118(c) of the Evidence Act, Maurice Blackburn submitted that the evidence led by IOOF is inadequate to discharge its onus of making out their privilege claims.[88]

(5) As to Category 5, Maurice Blackburn again submitted that IOOF has acted inconsistently with its privilege claims over these documents.[89] This submission was put on the basis that not only did Vine's First Affidavit refer to and exhibit an email which discussed the scope and terms of the Second Engagement (which is the subject of the documents in Category 5), but IOOF relied on the content of that email in order to establish the privileged nature of these documents.[90] Further, Maurice Blackburn alleged that IOOF has put the scope and terms of the retainer of the Second Engagement in issue. Maurice Blackburn alleged this occurred by IOOF asserting privilege over documents "on the basis that they were communications for the purpose of 'undertaking [the] Second Engagement', 'reporting to [Vine] on the progress and findings of [the] Second Engagement' and 'preparing a draft written report in respect of the Second Engagement'" in order for IOOF to make out its privilege claims.[91] According to Maurice Blackburn, "[s]uch an assertion can only be made good if the scope and terms of the Second Engagement have a privileged purpose", and that purpose must be tested by reference to the documents in Category 5.

(6) As to Category 8, Maurice Blackburn submitted that Vine gave evidence as to multiple purposes for the creation of those documents, being the provision of "legal advice and legal assistance".[92] It submitted that this meant that the dominant purpose test has not been satisfied in respect of the documents in Category 8.[93] To the extent that Vine's evidence changed in this regard,[94] Maurice Blackburn submitted that it should not be accepted.[95] Maurice Blackburn made further submissions regarding disclosure of the substance of the documents by the chairman of IOOF Holdings, however this was not pressed in closing submissions.[96]

(7) As to Category 11, Maurice Blackburn pressed for production of certain attachments to emails by way of the originals of those documents. As to 1 of those attachments, production was sought because it predated the instruction to commence the investigation which gave rise to the claims of privilege.[97]

(8) Generally, Maurice Blackburn pressed for production of a number of attachments to emails referred to in Vine's First Affidavit. This was on the basis that Vine provided no evidence as to the purpose of the preparation of those documents, as opposed to the purpose for which they were attached to the relevant email.[98]

52 Maurice Blackburn has claimed privilege with respect to the following categories of documents:[99]

(1) Categories A to C include various documents created during the First Period, as part of preliminary investigations into the Potential Class Action. Maurice Blackburn alleged that some of the documents created during the First Period were prepared to brief counsel for the dominant purpose of Maurice Blackburn obtaining advice on the prospects of success of the Potential Class Action. Obviously, Maurice Blackburn could not fit within the description of a "client [that] is or may be, or was or might have been, a party" to an anticipated proceeding[100] with respect to the Potential Class Action. It therefore claimed that these documents are privileged to Maurice Blackburn pursuant to s 118 of the Evidence Act.[101] These documents may be described as:

(a) Category A, being drafts and a final version of a brief to counsel.[102]

(b) Category B, being an audio recording and versions of a file note taken by an employee lawyer of Maurice Blackburn of a telephone conference with Employee A in respect of allegations made by Employee A that related to the Potential Class Action.[103]

(c) Category C, being a file note of a meeting of Maurice Blackburn employees, in which the investigation of the Potential Class Action was discussed, including the possibility of obtaining further information from Employee A.[104]

(2) Category D consists of file notes, emails and research notes prepared during the First Period by lawyers of Maurice Blackburn, including a file note of a meeting between a principal of Maurice Blackburn and counsel.[105] Maurice Blackburn alleged that these documents recorded communications that were for the dominant purpose of Maurice Blackburn obtaining advice from a Maurice Blackburn employee lawyer in relation to the Confidentiality Issues. It therefore claimed that these documents are privileged to Maurice Blackburn pursuant to s 118 of the Evidence Act.

(3) During the Second Period, namely from 17 July 2015 (being the date on which the First Client first gave instructions to Maurice Blackburn), to 7 October 2015, further documents were created as part of investigations in relation to, and preparatory work for, the Potential Class Action. Maurice Blackburn claimed that these documents are privileged to the First Client.[106] Broadly, these documents fall into 4 categories:

(a) Category E, being briefs to, communications with and file notes of meetings with, counsel regarding preparatory work for the Potential Class Action.[107]

(b) Category F, being copies of a memorandum of advice from counsel regarding the prospects of success of the Potential Class Action and communications distributing that memorandum.[108]

(c) Category G, being documents created by Maurice Blackburn employees[109] in relation to the prospects of success of, or in general preparation for, the Potential Class Action.[110] These documents comprise internal Maurice Blackburn communications, memorandums and other documents;[111] communications,[112] and file notes of discussions,[113] with Employee A; file notes of internal Maurice Blackburn meetings;[114] task lists;[115] and documents relating to document management,[116] internal documents regarding ongoing administration[117] and evidence gathering.[118]

(d) Category H, being communications (including drafts) between employees of Maurice Blackburn and Harbour in relation to advice on the prospects of success of, and the provision of litigation funding by Harbour for, the Potential Class Action.[119] These documents are in the possession of Maurice Blackburn. The claim for privilege with respect to some of these documents was made by Harbour.[120] (This is addressed section F.3 below.) As to the remaining documents, the claim is made on behalf of the First Client.[121]

(4) Specifically,[122] Maurice Blackburn alleged that the documents in Categories E and F are privileged to the First Client, and alternatively to Maurice Blackburn, pursuant to s 118 of the Evidence Act; the documents referred to in Category G are privileged to the First Client pursuant to ss 118 and 119 of the Evidence Act; and some of the documents referred to in Category H are privileged to the First Client pursuant to s 119 of the Evidence Act.[123]

(5) Maurice Blackburn claimed privilege on behalf of the First Client, over other documents created during the Second Period, which are not captured in Categories E to H,[124] namely:

(a) Category I, being an email from Varghese to Maurice Blackburn employees confirming the instructions of the First Client.[125]

(b) Category J, being documents created to arrange and prepare for further meetings with Employee A (the purposes of those meetings being to obtain further information in respect of the Potential Class Action), and file notes of those meetings.[126]

(c) Category K, being copies of, and communications regarding, documents provided by Employee A to Maurice Blackburn which related to the Potential Class Action.[127]

(d) Category L, being drafts of, and communications regarding, public communications to be made by Maurice Blackburn to alert IOOF shareholders to the Potential Class Action.[128]

(6) It is not clear whether Maurice Blackburn alleged that these documents are privileged to the First Client pursuant to s 118 or s 119 of the Evidence Act. However, in light of submissions made by Maurice Blackburn that all documents created in the Second Period are privileged pursuant to both provisions[129] (a submission that is inconsistent with the submissions referred to in paragraph 52(4) above), I will treat the privilege claims as having been made in that manner.

(7) Category M is yet a further document created during the Second Period, being an audio recording of a conversation between Dellavedova and an employee of Fairfax Media. Maurice Blackburn alleged parts of the interview were conducted on a confidential basis for the dominant purpose of gathering factual information relevant to the Potential Class Action.[130] There was no transcript of the audio tape at the start of the hearing of these applications. This was raised with Dellavedova during cross-examination. Maurice Blackburn produced the written transcript on the last day of the hearing, and in so doing informed the court that it no longer pressed the privilege claim with respect to this interview. Having read the transcript of the interview, it is difficult to understand how a claim was ever properly made. Given the timing of the production of the transcript, there was no opportunity to further cross-examine Dellavedova on this issue.[131] In these circumstances, it is unnecessary to make any findings with respect to this abandoned claim.

(8) Upon the online registration portal being established, a number of shareholders of IOOF retained Maurice Blackburn to represent them.[132] From 8 October 2016, further documents were created as part of preparatory work for the Potential Class Action ("the Third Period"). These documents fall into the following categories:

(a) Category N, being documents that relate to registrations by further Potential Class Action group members.[133]

(b) Category O, being communications with Employee A.[134]

(d) Category Q, being communications with respect to progress reports for Harbour.[136]

(9) Maurice Blackburn alleged that these documents are privileged to the First Client and to the Further Clients (who retained Maurice Blackburn during the Third Period).[137] Although not articulated explicitly, I will treat these privilege claims as having been made pursuant to both ss 118 and 119 of the Evidence Act, for the same reasons stated in paragraph 52(6) above.

(10) Category R consists of documents that fall within other categories identified above, created in the Second Period or the Third Period, the titles of which have been redacted. Maurice Blackburn contended that the titles themselves disclose the privileged contents of those documents.[138]

(11) Finally, Maurice Blackburn made various other privilege claims which have not been challenged by IOOF,[139] including in relation to copy documents regarding the Confidentiality Issues,[140] demands connected to the proceeding and a separate proceeding involving Employee A.[141] It is unnecessary to refer to these claims any further.

53 IOOF has challenged the claims for privilege on the following grounds:

(1) IOOF submitted that Maurice Blackburn's privilege claims with respect to Categories A to D cannot be maintained as there was no relationship of lawyer and client during the First Period. IOOF submitted such a relationship is necessary to establish such a claim.

(2) Further to subparagraph (1), with respect to various internal documents created during the First Period, IOOF submitted that such documents are not privileged. This was put on the basis that Maurice Blackburn could not be its own client in relation to a potential class action in respect of which it was intending to act as solicitors,[142] including because the lawyers it employed did not have the requisite independence to form such a relationship.[143]

(3) Even if there were a relationship of client and lawyer, IOOF submitted the documents were not created for the dominant purpose of providing legal advice to Maurice Blackburn.[144] Rather, IOOF contended that the documents were prepared for the commercial purpose of "working up" the Potential Class Action, which, if successful, would be of financial benefit to Maurice Blackburn and its principals.[145]

(4) As to communications with counsel during the First Period, IOOF submitted that such documents were not created for the dominant purpose of providing Maurice Blackburn with legal advice as a client. Rather, IOOF contended that such documents were created for the commercial purpose of assisting Maurice Blackburn in its negotiations with Harbour in relation to the funding of the Potential Class Action.[146]

(5) As to the documents produced in the Second Period (relevantly Categories E to L), IOOF disputed Maurice Blackburn's claim that these documents are privileged to the First Client. IOOF's primary submission was that there was insufficient evidence to establish that these documents were prepared for the First Client alone.[147] For example, IOOF pointed to the fact that the First Client's name did not appear on any documents produced during the Second Period, that the First Client was not requested to pay any fees at that time[148] and that contact with the First Client was very limited.[149] IOOF alleged that the documents produced in the Second Period were in fact prepared for prospective clients, and not for the dominant purpose of providing legal advice, or legal services for anticipated litigation, to the First Client.[150] In this way, IOOF characterised these documents as having been produced for a commercial purpose, similar to its submissions regarding the documents produced during the First Period.[151]

(6) IOOF also challenged the privilege claims in respect of particular documents produced in the Second Period, including those documents relating to practical arrangements, document management, task lists, internal documents regarding ongoing administration, and public communications, on the basis that they could not constitute the provision of legal services.[152]

(7) As to the claim that documents produced in the Second Period are privileged pursuant to s 119 of the Evidence Act, IOOF submitted that there is insufficient evidence that there was a real prospect of litigation and therefore there was no "anticipated ... proceeding" when the documents came into existence.[153] It alleged that Maurice Blackburn was only "gauging interest" in the Potential Class Action.[154]

(8) IOOF only sought production of 1 document that was said to be referrable to the Third Period, being document number 33. It appears that IOOF challenged the privilege claim made over this document on the same basis it challenged the claims in relation to documents produced in the Second Period. This is because the document is in fact dated 12 August 2015, thereby preceding the Third Period.[155]

(9) Finally, IOOF requested that the court inspect the Category R documents, the titles of which have been redacted, in order to determine whether the claims of privilege have been properly made.[156] Maurice Blackburn accepted that inspection of these documents was a convenient means to resolve this issue.

54 In contrast to the large number of claims by the other parties, Harbour claimed privilege with respect to only 23 copy documents in its possession.[157] IOOF stated in closing submissions it no longer challenged the claim with respect to 6 of those documents.[158] Harbour's privilege claims were for advice privilege or litigation privilege, or both. Harbour claimed litigation privilege on the basis that, from 16 July 2015, the Potential Class Action was reasonably probable, or, at least, likely.[159] The remaining documents in Harbour's possession fall into 10 categories:

(1) The first 6 categories of documents consist of communications between Maurice Blackburn and Harbour from early July to mid-October 2015. Specifically, the categories are:

(a) Category H.1, being documents attaching legal advice and a detailed budget for the Potential Class Action, provided by Maurice Blackburn to Harbour on 7 July 2015.[160] The privilege claim for Category H.1 was made primarily under s 118.[161]

(b) Category H.2, being communications between Maurice Blackburn and Harbour concerning updates from Maurice Blackburn to Harbour on the investigative steps being undertaken by Maurice Blackburn in relation to the Potential Class Action.[162] Maurice Blackburn's updates included preparation for the public launch of the Potential Class Action and the provision of monthly reports prepared by Maurice Blackburn in accordance with Harbour's investment processes.[163]

(c) Category H.3, being a communication confirming the conditional approval by the Investment Committee, and 1 of the investment funds with which Harbour was dealing, for funding of the Potential Class Action.[164]

(d) Category H.4, being an email dated 21 August 2015, attaching a letter containing further legal advice from Maurice Blackburn to Harbour on the merits of the Potential Class Action and a recommendation concerning counsel. The email also attached a separate memorandum of legal advice and the final claimant package.[165]

(e) Category H.5, being advice prepared by counsel for Maurice Blackburn and Harbour in relation to the merits of the Potential Class Action.[166]

(f) Category H.6, being an email from Harbour to Maurice Blackburn, dated 16 October 2015, in which Harbour sought legal advice from Maurice Blackburn concerning issues related to this proceeding.[167]

(2) The remaining 4 categories consist of 4 Harbour documents recording internal communications, as follows:

(a) Category H.7, being a submission prepared by O'Dowd on or about 8 or 9 July 2015, for the board members ("the Board")[168] and the Investment Committee and in relation to the Potential Class Action,[169] which included a copy of Maurice Blackburn's legal advice provided to Harbour on 7 July 2015.[170]

(b) Category H.8, being a document under cover of which the documents referred to in subparagraph (a) were sent by Harbour's office manager, at the direction of O'Dowd, to the Investment Committee and the Board.[171]

(c) Category H.9, being an email from O'Dowd to the Investment Committee, the Board and other members of Harbour's litigation funding team,[172] attaching the documents referred to in paragraph 54(1)(d) above.

(d) Category H.10, being an email dated 30 September 2015 from Harbour's head of litigation funding to O'Dowd,[173] which forwarded the advice of counsel referred to in paragraph 54(1)(e) above to the Investment Committee, the Board and other members of Harbour's litigation funding team.

55 IOOF challenged Harbour's claims for privilege with respect to documents in Harbour's possession, or in Maurice Blackburn's possession,[174] on the following grounds:

(1) There is "insufficient evidence of any relevant solicitor-client relationship" between Maurice Blackburn and Harbour.[175]

(2) The purpose of bringing the documents into existence was commercial, not legal. That is, they were provided for the purpose of Harbour making a commercial decision whether to fund the Potential Class Action.[176]

(3) IOOF submitted that no claim for litigation privilege could arise before the start of the Third Period on 8 October 2015, as there was not a real prospect of litigation.[177]

56 Whatever the status of the May Report now, when it was provided by Pricewaterhouse to IOOF in May 2015 it was privileged. The evidence established that the contents of the confidential document had been prepared for the dominant purpose of IOOF Holdings being provided with professional legal services relating to the Fair Work Proceeding.[178]

57 Contrary to Maurice Blackburn's submissions, the mere fact that IOOF sought to hold the Fair Work Proceeding in "abeyance" until the May Report was prepared does not suggest some other purpose. Further, it is of no real moment that the Fair Work Proceeding is not expressly referred to in the letter giving rise to the First Engagement, or that the May Report is not marked "privileged". Such factors are relevant but not determinative.[179] Finally, the fact that only some, and not all, of the issues in the Fair Work Proceeding were the subject of the First Engagement does not lead to a conclusion that the retainer was for a purpose other than the dominant purpose deposed to by Vine.

58 It follows that the confidential communications comprising the emails referred to in Categories 1 to 4 were also privileged at the time those communications occurred, those communications falling squarely within the language of s 119(a) of the Evidence Act. Equally, the copy documents attached to those emails were privileged,[180] those copies being confidential documents created for the same dominant purpose.[181]

59 Accordingly, the real issue with respect to Categories 1 to 4 is whether subsequent conduct of IOOF with respect to the May Report, including that it has been discovered in this proceeding without any claim for privilege, means IOOF has acted in a way that is inconsistent with IOOF objecting to production of the documents in Categories 1 to 4 on the grounds of litigation privilege.

60 Dealing with IOOF'S conduct in this proceeding, the act of discovering and making the May Report available for inspection was not inconsistent with maintaining privilege with respect to Categories 1 to 4. Put simply, IOOF had no choice but to discover the May Report. Discovery was ordered by the court, and the May Report was a relevant document.[182] Further, in discovering the May Report no claim for privilege could have been properly made when the contents of the May Report were already in the public domain, contrary to IOOF's wishes and for reasons ultimately beyond IOOF's control.[183]

61 Of course, the court is only providing an interlocutory ruling based on IOOF's conduct in the proceeding to date. If, for example, at trial IOOF chose to use the May Report as part of its evidence in the proceeding, the assessment, and consequential treatment, of IOOF's actions might be quite different.[184]

62 As to IOOF's conduct in dealing with the Standing Committee, the confidential disclosure to the Standing Committee was not inconsistent with the privilege claim now made. A client or party is not taken to have acted in a manner inconsistent with maintaining a claim for privilege if that person discloses the evidence in the course of making a confidential communication.[185] Naturally, the confidential communication still needs to be scrutinised to ascertain whether the conduct is inconsistent with the ongoing claim.

63 The provision of the May Report to the Standing Committee amounted to a waiver of privilege, at least to the extent of that disclosure. However, the waiver was limited.[186] There was no promise to the Standing Committee to provide any documents beyond the May Report itself, which was the only document that had been requested. Further, the provision of the May Report on the basis that it remain confidential was consistent with seeking to claim litigation privilege or advice privilege in relation to the documents forming part of Categories 1 to 4.

64 Save for the unauthorised publication on the Standing Committee website, there is no evidence of any other use to which the May Report was put by IOOF or the Standing Committee as part of the enquiry being conducted by the Standing Committee.

65 The reasons in paragraphs 60 to 64 above are also determinative of Maurice Blackburn's contention that the disclosure of the contents of the May Report give rise to a waiver of privilege with respect to documents and communications referred to in it. If IOOF had disclosed the May Report voluntarily and openly without seeking any confidentiality, there would have been considerable force in this contention. Nevertheless, the initial limited confidential disclosure, and then the disclosure under compulsion in this proceeding, are not inconsistent with the privilege cla[187]d. As already noted,187 this position may change if IOOF seeks to rely on the May Report in this proceeding.

66 Further, Maurice Blackburn relied on s 126 of the Evidence Act in contending that any privilege had been lost. However, even assuming the threshold of the application of any of ss 121 to 125 had been met, the court was not taken to any part of the May Report to attempt to demonstrate what part or parts of the May Report could not be properly understood.

67 Before moving to the next series of documents, there is a further submission of Maurice Blackburn relating only to Category 1 that needs to be addressed. As noted in paragraph 51(3) above, Maurice Blackburn alleged a waiver of privilege by reason that IOOF disclosed the retainer letter in seeking to discharge the onus in claimin[188]rivilege.188 In my view, there is some merit to this submission, but only to a limited extent.

68 The burden of establishing a claim for privilege is not met by general or formulaic assertions.[189] It is entirely consistent with IOOF maintaining its claim to give the specific details of the actual retainer, including disclosing the retainer letter itself, in order to prove the relevant dominant purpose. On the basis that the retainer letter is complete and unambiguous (there is no submission to suggest otherwise), such a disclosure does not carry with it an implied waiver with respect to earlier documents consisting of, or relating to, negotiations leading up to the retainer. However, the matter does not end there.

69 Although 2 of the documents in Category 1 are antecedent to the executed retainer letter,[190] there is another document which, on its face, is a copy of an executed retainer letter and bears the same date, namely 30 March 2015.[191] This further document also goes to the question of Pricewaterhouse's retainer on 30 March 2015. In the absence of any evidence as to why privilege ought to be maintained in relation to this document, as distinct from the retainer letter that has been disclosed, to seek to maintain privilege is inconsistent with the disclosure that IOOF voluntarily made. Accordingly, Maurice Blackburn is entitled to production of this further copy document.[192]

70 As to Category 5, a similar argument to that immediately above was put by Maurice Blackburn; this time referring to IOOF's disclosure of the contents of an email exhibited to Vine's First Affidavit. That email was sent to Pricewaterhouse by Vine on 30 July 2015, and specified that the Second Engagement was to enable IOOF's solicitors and Vine himself to provide legal advice to IOOF. The work to be performed was "the potential additional work flowing from your May [R]eport". In addition, Vine specified the engagement would be undertaken for the dominant purpose of enabling IOOF to receive legal advice, noting that privilege would attach to any confidential communication made during the course of the engagement. After stressing the importance of keeping communications confidential and privileged, Vine concluded with the following:

To this end, with the exception of your final report, can you please ensure that all communications in connection with your engagement are marked 'Privileged and Confidential'. As discussed, given that IOOF may choose to waive its privilege and provide your report to the [Standing] Committee, [ASIC] and/or [the Prudential Authority], IOOF's preference is that this label not be included on your final report.

71 For the reasons stated previously,[193] this disclosure of the email sent on 30 July 2015, made specifically for the purpose of establishing a proper basis for the privilege claim, is not inconsistent with the maintenance of that claim with respect to documents generally concerning the Second Engagement.

72 However, in establishing the basis of the claim IOOF chose to put the details of the retainer in issue by revealing the full contents of the email. The email reveals not only the dominant purpose, but also the general nature of the work then intended to be performed. It would be inconsistent with such conduct, namely reliance on the apparent instructions for the retainer, to withhold the actual terms of the retainer, which was not entered into until 21 August 2015. Accordingly, the waiver of privilege must extend to the engagement letter itself.[194]

73 Although there were other documents dealing with the same subject matter, comprising the remaining documents in Category 5, these documents were merely a precursor to the actual terms of Pricewaterhouse's retainer for the Second Engagement. Accordingly, the disclosure of the email is not inconsistent with the maintenance of privilege with respect to documents that do not record the final basis upon which the Second Engagement was entered into.[195]

74 More broadly, the claims for privilege with respect to Categories 5 to 8 are based on s 118(c) of the Evidence Act. The principal basis for the challenge to these claims related to Vine's initial attempt to explain why the privilege claim was made. For example, Maurice Blackburn noted that Vine stated IOOF sought a further analysis from Pricewaterhouse for use by him and IOOF's solicitors "in providing legal advice and legal assistance" in relation to allegations raised by Employee A and in responding to enquiries which had followed the media publications. In the Maurice Blackburn Outline of Submissions, this evidence was described as "opaque, loose and lack[ing] the requisite specificity".

75 Having read the Maurice Blackburn Outline of Submissions, Vine corrected his earlier evidence. Vine's Second Affidavit recorded that the Second Engagement was for the dominant purpose of Vine and Riordan giving and obtaining legal advice, including from IOOF's external lawyers. Vine was cross-examined in relation to this evidence. Vine maintained the position adopted in Vince's Second Affidavit.

76 Maurice Blackburn invited the court to reject such evidence and to accept Vine's first version of events. Such an invitation carried with it the need to find Vine was lying under oath both in Vine's Second Affidavit and in his oral evidence to the court. I make no such finding. The correcting evidence of Vine is entirely consistent with the contents of the email sent on 30 July 2015.[196] Further, the phrase "legal advice and legal assistance" was used on numerous occasions in Vine's First Affidavit, which might explain how this language was used in this context. In any event, I could not be satisfied on the balance of probabilities that Vine's later evidence was untruthful.[197] On the contrary, I accept Vine's later evidence.

77 Even on Vine's later evidence, Maurice Blackburn challenged the privilege claim. However, the dominant purpose depose to falls within the language of s 118(c), the documents in question being confidential and prepared by the "client" (Vine on behalf of IOOF), "lawyer" (Vine) or "another person" (Pricewaterhouse) for the dominant purpose of the "lawyer" (Vine, Riordan or the external lawyers) or 2 or more of them providing legal advice to the "client" (IOOF).[198]

78 Maurice Blackburn relied upon a line of New South Wales authority, concerned with the proper construction of s 118(c) of the Evidence Act, in submitting that s 118(c) would not apply to the documents created by Pricewaterhouse.[199] It is unnecessary to discuss the approach taken in these cases as the words "or another person" did not appear in s 118(c) at the time these cases were decided.[200]

79 Further, before the Evidence Act was enacted in Victoria in 2008, the Full Court of the Federal Court, in Pratt Holdings Pty Ltd v Commissioner of Taxation,[201] took a different approach.[202] In this context, the explanatory memorandum to the Evidence Bill 2008 (Vic) made the position clear, where it was stated:[203]

Clause 118(c) extends the privilege to confidential documents prepared by someone other than the client or lawyer (such as an accountant or consultant) for the dominant purpose of the lawyer providing legal advice to the client. This reflects developments in the common law consideration of legal advice privilege as discussed by the Full Federal Court in Pratt Holdings v Commissioner of Taxation [2004] FCAFC 122; (2004) 207 ALR 217.

It follows that the cases relied upon by Maurice Blackburn do not represent the law in Victoria. Accordingly, Maurice Blackburn's challenge with respect to Categories 5 to 8 is unsuccessful, except with respect to the engagement letter for the Second Engagement.

80 The challenge to the privilege claim with respect to Category 11 was narrowly confined. Maurice Blackburn initially submitted that, as Riordan did not give instructions to investigate the conduct of Employee B and Employee H until 31 December 2008, documents created before that time could not be privileged on the basis claimed. No doubt, because the documents in question are copy documents attached to privileged emails Maurice Blackburn chose not to pursue this challenge.[204] Whether or not the originals of those documents are privileged, copies made for a relevant dominant purpose are properly the subject of a claim.[205]

81 The only remaining issue for Category 11 is that Maurice Blackburn sought discovery of the originals of the documents. The applications as made, and the orders as sought, only related to discovered documents.[206] Accordingly, I propose to make no orders in this regard at this stage.

82 IOOF submitted that up until 17 July 2015, before the First Client retained Maurice Blackburn, it was not possible for privilege to be claimed by reason that Maurice Blackburn did not have a client. IOOF submitted that every available limb of ss 118 and 119 required a client before privilege may be properly claimed.

83 Whilst it is correct that Maurice Blackburn did not have a client up to this time, that fact did not preclude Maurice Blackburn from being the client itself.[207] In late June and early July 2015, Maurice Blackburn was considering whether or not to take steps to advance the Potential Class Action. To that end, Maurice Blackburn was perfectly entitled to seek its own legal advice.

84 The Category A documents, being drafts and a final version of a brief to counsel, come within the description of confidential documents prepared by the "client" (Maurice Blackburn) for the dominant purpose of a "lawyer" (counsel) providing legal advice to the client. Therefore, these documents come squarely within s 118(c).

85 Having formed this view on the evidence, I conducted an inspection of Maurice Blackburn's documents numbered 22, 130 and 291. This confirmed the conclusion that Maurice Blackburn was, itself, seeking the advice and counsel had agreed to act on that basis.

86 With respect to Category B, at the time Maurice Blackburn spoke with Employee A, it was already in contemplation that Maurice Blackburn would be obtaining advice from counsel. Dellavedova deposed that the dominant purpose of the conversation with Employee A was to ascertain the veracity of the information about IOOF contained in media publications, as it was relevant to assessing the prospects of success and to the advice to be sought by Maurice Blackburn in that regard.[208] The documents created were prepared by the "client" (Maurice Blackburn) for the dominant purpose of the "lawyer" (counsel) providing legal advice to the client, and therefore fall within s 118(c).

87 The fact that Maurice Blackburn also used information provided by Employee A to make its own assessment as to the prospects of success of the Potential Class Action does not detract from the privileged nature of the documents. Such conduct did not change the dominant purpose for bringing the documents into existence.[209] Equally, Maurice Blackburn using some of the product of its work as the foundation for the advice provided to Harbour on 7 July 2015,[210] does not change the dominant purpose for bringing the documents into existence.

88 Category C is a single page file note of a meeting between solicitors of Maurice Blackburn about the investigation, including the possibility of obtaining further information from Employee A. The further information was said to be for the purpose of Maurice Blackburn's own legal assessment and for inclusion in the brief already provided to counsel.[211] As the language of s 118(c) makes plain, the fact that the document was not provided to counsel is not a bar to a privilege claim. In my view, this confidential document, although different to the type of document falling within Category B, is privileged for the reasons stated in paragraphs 86 and 87 above.

89 Category D consists of various documents. On the question of the requisite independence when considering whether Maurice Blackburn could be the "client" when receiving advice from an employee lawyer, the employee lawyer involved has the title of "special counsel" at Maurice Blackburn. There was nothing to suggest that she was consulted other than confidentially in her professional capacity or that she did not exercise the requisite degree of independence in relation to the professional matters about which she was asked to give advice.[212] On the contrary, Dellavedova's evidence suggested that that was precisely the basis on which the advice was sought and provided.[213] The fact that the employee lawyer also performed other tasks with respect to the Potential Class Action, while a relevant consideration, does not preclude a finding of the necessary independence and professionalism.

90 To the extent that the Category D documents contain advice from a Maurice Blackburn employee ("lawyer") to Maurice Blackburn ("client"), they come within s 118(a).[214] Other documents that are confidential documents, prepared by Maurice Blackburn for the employee lawyer or by the employee lawyer, fall within s 118(c). A file note of a meeting with counsel also falls within this provision.

91 An inspection of each of the relevant documents bears out the evidence given by Maurice Blackburn as to the nature of the documents. [215] For the reasons stated, the Category D documents are privileged.

92 As to the overarching submission made by IOOF with respect to categories A to D that the dominant purpose of Maurice Blackburn obtaining advice was a commercial purpose, I reject this general characterisation. While there can be no doubt Maurice Blackburn was engaged in assessing the Potential Class Action for its own possible commercial gain,[216] it does not follow that legal advice sought by Maurice Blackburn with respect to the prospects of success of the Potential Class Action is not, itself, privileged. The evidence demonstrated Maurice Blackburn wanted to know the legal position before making any decision on whether to promote the Potential Class Action.[217] In my view, IOOF's submission conflated a substantive (perhaps primary) reason why Maurice Blackburn was interested in investigating the Potential Class Action and the particular dominant purpose for seeking the advice it sought; and for making the communications it made, or creating the documents it created, relating to that advice.

93 As a result of the findings made above, it is unnecessary to make any determination about whether Maurice Blackburn itself could properly claim privilege generally if, it did not, relevantly, have a client.[218] In short, it appears there are no documents created in the First Period for which privilege is claimed that have not been addressed on the bases set out above.[219] For completeness, if there are documents that were created in the First Period - before any meaningful view on prospects, or before any intention to obtain or give legal advice, had been formed - that were created for the sole or dominant purpose of merely investigating whether or not there was a basis for a claim, those documents would not be privileged.[220]

94 With respect to Categories E to L, a threshold issue arises concerning the Second Period, namely whether or not Maurice Blackburn was acting for the First Client, such that the First Client is entitled to claim privilege in relation to any of the relevant documents created between 17 July 2015 and 7 October 2015.

95 Critically, with respect to this issue, there is no dispute that the First Client actually retained Maurice Blackburn on 17 July 2015.[221] The absence of a formal written retainer until February 2016[222] is of little moment, as the relationship of lawyer and client may be established by a request for advice or legal services; there is no need for a binding contract.[223]

96 It must have always been contemplated by both Maurice Blackburn and the First Client that there would be numerous other prospective claimants who might benefit from the investigation of the Potential Class Action. However, this fact did not preclude a genuine instruction on the part of the First Client for Maurice Blackburn to investigate the Potential Class Action in which the First Client would be a plaintiff, if it ever eventuated. In particular, it was not suggested by IOOF that the agreement with the First Client was a sham or some other means by which Maurice Blackburn sought to create a relationship in order to provide a basis to claim privilege with respect to documents to be created in the future that would otherwise not have been privileged.

97 IOOF submitted that work performed during the Second Period was not for the dominant purpose of providing advice or legal services to the First Client, within ss 118 and 119 respectively. Again, this was put principally because of the obvious commercial interest Maurice Blackburn had in "working up" the Potential Class Action and the potential interest of prospective claimants (other than the First Client). In addition, in submitting the appropriate inference to be drawn was that the purpose or purposes of creating the documents could not support the privilege claim, IOOF highlighted the paucity of communication between Maurice Blackburn and the First Client concerning the outcome of the investigative work,[224] and the fact that the First Client was not sent a bill at any time during the Second Period.

98 As to the first of these matters, Maurice Blackburn's undoubted commercial interest does not override the First Client's entitlement to claim privilege where the necessary dominant purpose existed in relation to work done pursuant to its retainer of Maurice Blackburn.[225] The privilege is that of the First Client, not of Maurice Blackburn.[226] Similar observations may be made regarding the potential interest of prospective claimants (other than the First Client). That potential interest did not prevent the First Client from genuinely seeking the legal advice or professional services sought.

99 With respect to the second point, Dellavedova explained that the lack of contact with the First Client during the Second Period was based on the fact that the First Client was an institutional investor. Dellavedova's understanding at the relevant time was the level of information required by such institutional investors often meant they did not "need a lot of information until critical junctures". Dellavedova also volunteered that, if the advice received had been negative, then she would have communicated back to the First Client, but she was not placed in that position. Based on this evidence, the lack of communication with the First Client during the Second Period (and parts of the Third Period) does not give rise to an inference that work being done was not pursuant to the First Client's instructions, or that the dominant purpose was not as Maurice Blackburn contended. Further, the absence of a bill during the Second Period is not determinative of whether or not a genuine lawyer/client relationship existed.[227]

100 To summarise, the First Client specifically instructed Maurice Blackburn to conduct the investigation into the Potential Class Action so that, if the proceeding were to be commenced, the First Client could be a plaintiff.[228] In those circumstances, whilst it remained the only client of Maurice Blackburn, the First Client is entitled to claim privilege in relation to the advice obtained from Maurice Blackburn, or by Maurice Blackburn on the First Client's behalf, and in relation to legal services performed with respect to an anticipated proceeding.

101 For clarity, it must be noted that the court is not necessarily accepting the evidence of Dellavedova that all work performed during the Second Period was exclusively for the sole purpose of the First Client's retainer.[229] It is sufficient to say, subject to certain matters referred to below, that the requisite dominant purpose of the work performed by Maurice Blackburn during the Second Period has been established.[230]

102 A further general submission made by IOOF was that the Potential Class Action could not be properly described as "an anticipated or pending" proceeding as that phrase is used in s 119. This submission was based, in part, on Maurice Blackburn's public statements in October 2015 to the effect that it was "gauging [the] interest" of IOOF shareholders as to whether they felt "sufficiently aggrieved and feel that they've suffered loss ... and [want to] participate in an action to recover compensation".[231]

103 Logically, until members of a class have indicated they are willing to participate in a class action, there can be no certainty as to whether or not the class action will proceed. However, the fact that such an indication has not occurred does not mean that litigation is only a mere possibility.

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