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[2021] VSC 527
Supreme Court of Victoria
2021-08-27
Matthews AsJ
Original judgment source is linked above.
EQUITY - Trusts - Beneficiary application for inspection of trust documents granted in the exercise of the Court's supervisory jurisdiction - Trustees withheld certain "excluded documents" from production on the basis of legal professional privilege and on the grounds of confidentiality - Beneficiary disputed large number of the excluded documents - Application of Evidence Act 2008 (Vic) - Trustees' claims regarding privilege largely upheld - Privilege claims in respect of third parties analysed - Trustees' claims regarding confidentiality upheld - Court's inspection of documents - Evidence Act 2008 (Vic) ss 118, 119, 122, - (Ruling) - ; - - - ; - - - ;
Iconic Food Distributions Pty Ltd and Sirena (Aust) Pty Ltd, Interested Parties
1 This decision concerns the Court's ruling in respect of certain claims by the second, third and fourth defendants (collectively, the 'Trustees', individually, each a 'Trustee') to resist inspection by the Plaintiffs of certain classes of trust documents on the basis of legal professional privilege and/or confidentiality.
2 In support of their position, the Trustees rely on the affidavit of Lachlan Owen Stuart Hughes sworn 30 April 2021 ('Hughes Affidavit'). Mr Hughes is a partner of the firm Lawson Hughes Peter Walsh ('LHPW'), the solicitors for the Trustees. In opposition to the Trustees' position, the Plaintiffs rely on the affidavit of Susanna Ford affirmed 18 May 2021 ('Ford Affidavit'). Ms Ford is a partner of Arnold Bloch Leibler ('ABL'), the solicitors for the Plaintiffs.
3 Leave was granted to appear to two interested parties, Iconic Food Distributions Pty Ltd ATF the Iconic Food Distribution Unit Trust ('Iconic') and Sirena (Aust) Pty Ltd ATF the Valmorbida Unit Trust No. 9 ('Sirena') (collectively, the companies are referred to as the 'Sirena Group' and the two trusts as the 'Sirena Group Trusts'). The application for leave was not opposed. The Sirena Group relies on the affidavit of Ivan Rizio affirmed 21 May 2021 ('Rizio Affidavit'). Mr Rizio is the company secretary of each of Iconic and Sirena.
4 In addition, the Trustees rely on the written outline of submissions of their Counsel dated 20 May 2021 ('Trustees' Outline'), and the Plaintiffs rely on the written outline of submissions of their Counsel dated 19 May 2021 ('Plaintiffs' Outline'). Both sets of Counsel made extensive oral submissions. Mr Somers also made oral submissions on behalf of the Interested Parties.
5 These materials are extensive, and it has not been necessary to refer to all of the matters raised. However, all of the abovementioned affidavits, written outlines and oral submissions have been taken into account in the preparation of these reasons.
6 For the reasons which follow, in general terms I have:
(a) Accepted the Trustees' approach regarding instances where they can withhold trust documents (or parts thereof) from the Plaintiffs (despite them being beneficiaries of the trusts) on the grounds of legal professional privilege;
(b) Accepted the Trustees' approach regarding withholding documents (or parts thereof) which were provided by third parties to the Trustees on a confidential basis and which contain confidential information; and
(c) Accepted the Trustees' approach regarding withholding documents (or parts thereof) which would reveal the confidential, sensitive or personal information of beneficiaries and of third parties.
7 Where I have formed the view that particular documents or categories of documents should be produced (either in whole or redacted), I have indicated that where considering those particular categories.
8 An explanation of the parties, the trusts, this proceeding and other proceedings between some or all of them is necessary so as to understand and analyse the basis for the privilege and confidentiality claims made by the Trustees and resisted by the Plaintiffs which is the subject matter of these reasons.
Kairu ('Erica') Chan personally (the first plaintiff) and in her capacity as the executrix of the estate of her late husband, Adrian Valmorbida (deceased) (the second plaintiff) is the moving party in this litigation. Shortly after the death of her husband, Adrian Valmorbida, aged 57, on 4 August 2016, after a long battle with cancer, there was a falling out between Kairu Chan and her two young daughters, Xuan Valmorbida, born 6 September 2006, and Ruowei Valmorbida, born 27 August 2012, and the Valmorbida family.
In 2017 three separate proceeding were issued in this Court, including this proceeding (the 'Trustee Removal Proceeding').
Admarval Pty Ltd ('Admarval', the third plaintiff) is a company that, prior to his death, was controlled by Adrian and is now controlled by Kairu Chan. As well as holding all of the shares in Admarval, Kairu Chan is and since 26 October 2016 has been the sole director of Admarval.
From 23 May 2006 when the Admarval Trust was established until December 2016, Admarval was trustee of the Admarval Trust. The Principals (protectors) of the trust as named in the original trust deed were Adrian and his father Mariano Valmorbida. On 12 February 2016 Adrian and Mariano appointed Valmorbida Custodians Pty Ltd ('VCPL') as the Principal of the trust.
Adjoval Pty Ltd ('Adjoval', the fourth plaintiff) is trustee of the Adrian Valmorbida Family Trust ('AVFT'). Adjoval is a company also controlled by Kairu Chan. It was added as a plaintiff to this proceeding on 24 July 2020.
VCPL (the first defendant) was incorporated on 15 December 2015, at which time Adrian and Mariano were the only directors. Each held two of the four issued shares in VCPL. On 23 September 2016 Mariano appointed Ivan Rizzo and Luisa Valmorbida, a cousin of Adrian and the niece of Mariano as additional directors of VCPL. The shares in VCPL previously held by Adrian are now held by Kairu Chan.
Golden Fin Pty Ltd ('Golden Fin', the second defendant) is, and since 2004 has been, the trustee of the Ferval Trust. There are two ordinary shares issued in Golden Fin. One is held by Mariano, the other, by Kairu Chan. The directors of Golden Fin from 31 March 2014 were Adrian, Mariano and Luisa Valmorbida. Following the death of Adrian, Mariano and Luisa continued on and remain as the current directors.
The Ferval Trust was established on 2 May 1988. In 2004, Adrian became a joint guardian of the Trust with Mariano. Kairu Chan and her two children are Principal Beneficiaries of the Ferval Trust. Adrian was also a Principal Beneficiary of the Trust prior to his death.
Maradval Pty Ltd ('Maradval', the third defendant) was incorporated in December 2016. Mariano is the sole director and shareholder of that company. Shortly after Maradval was incorporated, on 7 December 2016, VCPL removed Admarval as trustee of the Admarval Trust and appointed Maradval in its place.
Mariano and Adrian are the Primary Beneficiaries named in the Admarval Trust Deed. Kairu Chan and her two daughters are Secondary Beneficiaries of that Trust. Adjoval, as trustee of AVFT, a trust in which at least one Beneficiary has a beneficial interest, is a Tertiary Beneficiary of the Admarval Trust.
Vinrose Pty Ltd ('Vinrose', the fourth defendant) is trustee of the Keck Trust. From 20 May 1986 until the death of Adrian on 4 August 2016, Adrian and Mariano were the directors of Vinrose. On 5 August 2016, the day after Adrian died, Mariano appointed Luisa Valmorbida as a director. The current directors of Vinrose are Mariano and Luisa.
The Keck Trust was established on 20 June 1980. The trust deed provides that the Principal Beneficiaries are the children of Mariano. On 30 June 2004 the trustee exercised its power under the trust deed to exclude Adrian's two siblings, Nadia and Elise from the class of Principal Beneficiaries. In 2008, Mariano appointed Adrian joint guardian of the Keck Trust. Prior to Adrian's death, the Keck Trust was jointly controlled by Adrian and Mariano. As the widow of a Principal Beneficiary, Kairu Chan is a Secondary Beneficiary of the Keck Trust.
Mariano Valmorbida (the fifth defendant) was born on 28 April 1931. In August 2016 when Adrian died, Mariano was aged 85. At his instigation, but on the application of the Kairu Chan parties, Mariano was added as a defendant to this proceeding on 24 July 2020. No relief is sought against him personally by the amended statement of claim filed pursuant to leave granted on 24 July 2020.
(a) Golden Fin is the trustee of the Ferval Trust;
(b) Maradval is the trustee of the Admarval Trust; and
(c) Vinrose is the trustee of the Keck Trust.
11 In these reasons, each of these trusts is referred to as the Trusts, individually, a Trust. Where 'trust' is used, it is used in the general sense or not in terms of a particular trust.
12 Again, I gratefully adopt the summary of the various proceedings in Chan No 1,[3] which is set out below:
In the Trustee Removal Proceeding, detailed orders sought by the Kairu Chan parties include:
(a) a declaration that Admarval is the Trustee of the Admarval Trust,
(b) an order that Maradval deliver up the assets of the Admarval Trust to Admarval,
(c) orders for the payment of substantial sums of money from Maradval to the estate of Adrian Valmorbida,
(d) an order that an independent trustee be appointed as trustee of the Keck Trust in substitution for Vinrose,
(e) an order that an independent person or entity be appointed as guardian of the Keck Trust in substitution for VCPL, and
(f) an order that an independent trustee be appointed as trustee of the Ferval Trust in substitution for Golden Fin.
Proceeding 01845 of 2017 is a related proceeding involving two of the same protagonists. Golden Fin is the plaintiff in that proceeding and Kairu Chan is the defendant (the Golden Fin Proceeding). The relief sought by Golden Fin in that proceeding includes:
(a) an order that Kairu Chan, in her capacity as executrix of the estate of Adrian Valmorbida, transfer to Golden Fin the title to a property at 21C Avoca Street, South Yarra, and
(b) an order that Kairu Chan transfer to Golden Fin title to the property located at 19 Avoca Street, South Yarra.
In 2017 a proceeding was issued by Mariano seeking rectification of Adrian Valmorbida's will (the 'Rectification Proceeding'). Not long after the hearing, the Court received a request from the parties that delivery of the reasons be delayed to enable the parties to engage in discussions to seek to resolve the disputes between them. In March 2019, after a number of unsuccessful attempts to resolve the disputes, including with the assistance of Ray Finkelstein QC as mediator, the parties requested that the Court deliver judgment in the Rectification Proceeding. The Court delivered its judgment on 5 June 2019.
13 In addition, there are or have been other proceedings involving all or some of the same parties, as follows:
(a) In 2016, Golden Fin issued proceeding No S CI 2016 05135 against Kyriacou Lawyers ('Kyriacou') seeking production of documents in respect of the properties at 19 and 21C Avoca Street South Yarra ('Kyriacou Proceeding'). Kyriacou had previously been engaged by Adrian on behalf of Golden Fin, however after Adrian's death LHPW was engaged by Golden Fin to act on its behalf in its own capacity and as trustee of the Ferval Trust. Orders were made for the production of documents by Kyriacou on 22 December 2016;
(b) In 2017, Golden Fin issued proceeding No S CI 2017 00764 against Kyriacou for delivery up of documents ('Kyriacou Delivery Up Proceeding');
(c) In 2017, Maradval issued proceeding No S CI 2017 00765 against Admarval seeking recovery of trust assets from former trustees ('Maradval v Admarval Proceeding');
(d) In 2017, Epaminondas Katsalidis issued proceeding No S CI 2017 1666 against Golden Fin and the second plaintiff in respect of the property at 17 Avoca Street South Yarra ('Katsalidis Proceeding'). LHWP represented Golden Fin and ABL represented the Second Plaintiff; and
(e) There are other proceedings involving some of the same parties, however these are not presently relevant, or will be explained in response to particular issues.
The key issues and claims in the Trustee Removal Proceeding and the Golden Fin Proceeding
14 For the purposes of determining the matter before me, it is necessary to have some understanding of the key issues and claims in the Trustee Removal Proceedings and the Golden Fin Proceeding. Both of these proceedings are being managed together and I understand they will be tried at the same time.
15 A very detailed summary of the key events, issues and claims in the Trustee Removal Proceeding and the Golden Fin Proceeding is set out in Chan No 1.[4] It is not necessary for me to repeat that level of detail here. Rather, I have simply set out a high level summary of the key matters, as described in that decision.
16 One of the key areas of dispute concerns the properties at 17, 19 and 21C Avoca Street, South Yarra:
(a) Golden Fin has been the registered proprietor of 17 Avoca Street since 2007.
(b) In August 2008, Golden Fin became the registered proprietor of 21C Avoca Street, which adjoins 17 Avoca Street. In December 2014, 21C Avoca Street was transferred to Adrian. Golden Fin alleges, in the Golden Fin Proceeding, that Adrian procured the transfer without the informed consent of Mariano and for no consideration, such that the property is held on trust for Golden Fin. The Plaintiffs allege that 21C Avoca Street was distributed by Golden Fin to Adrian as a primary beneficiary of the Ferval Trust and at the same time, land in Reservoir was distributed to Mariano as a secondary beneficiary.
(c) In May 2013, Adrian and Kairu Chan as joint tenants as to 90% and Golden Fin as to 10% became registered as proprietors of 19 Avoca Street. On 17 June 2016, Golden Fin's 10% interest in that property was transferred to Adrian and Kairu Chan. Golden Fin alleges, in the Golden Fin Proceeding, that the transfer was procured by Adrian in breach of his duties as a director of Golden Fin. Further, Golden Fin alleges that the initial registration of Adrian and Kairu Chan as to 90% was without consideration and the informed consent of Mariano, such that the whole of the property is held on trust for Golden Fin.
17 The Plaintiffs allege that Adrian and Mariano agreed in about 2013 to develop the Avoca Street properties by constructing five units on 17 Avoca Street (to be leased out by Golden Fin) and a house on 19 and 21C Avoca Street for Adrian and Kairu Chan and their children. They say that in order to fund the development, Admarval was to obtain bank finance, Golden Fin was to pay the expenses of the development, and Vinrose was to distribute money to Admarval so it could repay the bank finance. Bank finance was obtained, a construction contract was entered into, and work commenced on each of the properties. That work is alleged to have ceased in late 2016 at Golden Fin's instruction.
18 The Plaintiffs allege that in around December 2016, by removing Admarval as trustee of the Admarval Trust and replacing it with Maradval, Mariano, Maradval and VCPL were involved in actions that caused a default in the bank facilities, which actions are alleged to have been taken in bad faith and in breach of duty by VCPL.
19 In the Trustee Removal Proceeding, there are claims and counterclaims between the parties regarding various financial transactions concerning the three Trusts, including:
(a) The Plaintiffs allege that following Adrian's death, Mariano has had effective control over the affairs of the Trustees and VCPL, and that he has shown a want of proper fitness and capacity to execute the Trusts;
(b) The Trustees, VCPL and Mariano are suspicious of the administration of the Trusts by Adrian prior to his death;
(c) There are allegations regarding the treatment of loan account balances for Adrian and Mariano, and of false accounting in respect of distributions of income in each of the 2015 and 2016 financial years for the Admarval Trust;
(d) Various breaches of trust by Admarval and Golden Fin are alleged by the Plaintiffs, including by Golden Fin paying Mariano's legal costs of the Rectification Proceeding and the legal costs of Vinrose and Admarval; and
(e) In around May 2019, the AV Children's Trust was established, it appears by interests associated with Mariano. For the year ended 30 June 2019, the Admarval Trust distributed its profit of $5.053m as to one half to the AV Children's Trust and as to the other half to the Mariano Valmorbida Family Trust. The Plaintiffs allege that Maradval exercised its discretion to make such distributions as trustee without acting in good faith.
20 Chan No 1 concerned an application by the Plaintiffs for orders that the Trustees provide them with inspection of Trust records for each of the three Trusts ('Trust Records Application'). That application was opposed and following the filing of affidavit evidence and submissions,[5] Delany J issued his decision in Chan No 1. By the time of the making of the Trust Records Application, discovery in both proceedings had been ordered and made.[6] As his Honour noted, the discovery orders are relevant to the Trust Records Application, which arises in the context of the unresolved disputes between the parties.[7]
21 In Chan No 1, his Honour found that while the proprietary approach (being that a beneficiary has a prima facie entitlement to inspect and copy all trust documents) was generally the correct approach to be applied, as opposed to the discretionary approach (the Court having a discretion whether or not to order inspection of trust documents, in the exercise of its supervisory jurisdiction), in the circumstances of this case the discretionary approach was applicable. His Honour then went on to consider whether an order for inspection should be made and, if so, the appropriate scope and content of that order.[8]
22 Having delivered his reasons in Chan No 1, on 14 September 2020 his Honour made orders in respect of the Trust Records Application ('Trust Records Orders'), which included the following orders:
(a) The Trustees were to provide to ABL, for inspection by or on behalf of the Plaintiffs, copies of trust documents for each of the three Trusts for the period commencing 1 July 2013 to date, other than the Excluded Documents ('Paragraph One');
(b) The Trustees were to provide a list of documents or categories of documents which comprise either ('Paragraph Two'):
(i) The excluded documents;
(ii) "such other documents as the Trustees contend ought not be made available for inspection pursuant to this order" (I shall refer to this category as 'Other Withheld Documents'); and
(iii) Such list to include a brief description of the reason the document in question is an excluded document or "should not otherwise be required to be produced for inspection pursuant to this order";
(c) The Plaintiffs were then to provide a schedule listing those documents, if any, referred to in Paragraph Two which they contend are not excluded documents or should otherwise be made available for inspection ('Paragraph Three');
(d) Any dispute as to inspection of excluded documents or Other Withheld Documents as provided in Paragraphs Two and Three was referred to an Associate Judge for determination ('Paragraph Four'); and
(e) To the extent documents are produced for inspection pursuant to Paragraph One, it shall not be necessary for the party producing those documents to also make discovery of those documents ('Paragraph Five').
23 The Trust Records Orders defined certain terms used in the orders, including:
(a) The trusts ('Trusts') means the Admarval Discretionary Trust, the Keck Trust and the Ferval Trust or any of them;
(b) The Trustee means the trustee of the Trusts or any of them from time to time including the second to fourth defendants;
(c) The trust documents ('Trust Documents') means:
all written records that record and/or explain each transaction of the trusts, or of the Trustee of the trusts as the case may be and of the financial position and performance of the trusts as would enable true and fair financial statements of the trusts to be prepared and audited and for the purposes of this order includes:
(i) how any amount in the accounts of the trusts, or any amount which goes to make up the amounts comprised in such accounts was ascertained;
(ii) the basis and purpose of each journal entry (including those relating to legal fees) and transaction;
including client instructions or explanations, working papers and calculations, file notes, emails (including emails such as the 'emails from Anton') and records of communications related to or concerning each such amount and entry;
(d) The excluded documents ('Excluded Documents') means:
(e) The 'third parties' means the servants and agents of the Trustees of the trusts or any one of them, from time to time, and includes Moran accountants, Mr Kal de Silva and Mr Freeman.
Summary of process used by the Trustees to produce the Trust Documents and to identify the Excluded and Other Withheld Documents
24 Mr Hughes deposes that LHPW on behalf of the Trustees collated documents for the purposes of complying with the Trust Records Orders. These were collated from various sources, including Moran Accountants ('Morans'), the accountants for the Trustees; Grace Culvenor, the bookkeeper for the Trustees; Kal De Silva, the former bookkeeper for the Trustees; David Freeman, advisor to the Trustees, along with his company, Applebay Pty Ltd ('Applebay'); Luisa Valmorbida ('Luisa'), director of the Trustees; Irving Errol Lenton ('Irving'), director of the Trustees; Mariano; and Kyriacou.[9]
25 After collation of the documents, they were reviewed by LHPW staff and Excluded Documents, Other Withheld Documents, and irrelevant documents (in the sense of being outside the ambit of the Trust Records Orders, referred to as 'Out of Scope Documents') were identified. This was done on the basis of privilege, confidentiality or being out of scope, either as to the whole of the document or part of the document.[10]
26 Documents which were not Excluded Documents, Other Withheld Documents or Out of Scope Documents were compiled and produced for inspection by ABL. Over 14,000 Trust Documents were produced for inspection pursuant to the Trust Records Orders. This production occurred in a number of tranches, commencing on 9 October 2020 and concluding on 13 November 2020.[11]
27 A list of the Excluded and Other Withheld Documents was also produced in tranches to ABL at the same time, each list incorporating and superseding the list in the previous tranche.[12] When producing the lists, a column on the list recorded the reason for each document's exclusion by reference to a key. Those reasons for exclusion were as follows:[13]
(a) Any settlor's memorandum of wishes, unless such memorandum of wishes has previously been discovered in this proceeding ('Reason A');
(b) Any document of the Trustee to which legal professional privilege or without prejudice privilege attaches being the privilege of one or more Trustees of the trust ('Reason B');
(c) Documents recording or evidencing the reasons of any one or more of the Trustees for exercising a discretionary power, other than the minutes of meetings of Trustees ('Reason C');
(d) Documents recording or evidencing information provided to the Trustees or any one of them, in confidence by a beneficiary where such document contains confidential information ('Reason D');
(e) Documents containing confidential information of other parties or provided by other parties on a confidential basis ('Reason E'); and/or
(f) Documents recording sensitive or private details of other parties ('Reason F').
28 In addition, the list of Excluded and Other Withheld Documents included a column indicating whether a particular document was redacted (marked R) or excluded in full (marked A), and copies of the redacted documents were provided for inspection.[14]
29 Further versions of this list were subsequently provided, which contained further descriptions of the documents for Reasons C to F and for Reason B. This was all compiled and produced on 22 December 2020 ('22 December List') along with the descriptions of the reasons, including some further categorisation of the documents ('Key Descriptions Document').[15] The Plaintiffs then responded to the 22 December List and the Key Descriptions Document pursuant to Paragraph Three of the Trust Records Order, on 10 March 2021 ('Plaintiffs' Schedule').[16] This is how the disputed documents have been identified.
30 Mr Hughes deposes that in the course of preparing his affidavit and reviewing unredacted versions of documents for this purpose, he has identified some documents which on reflection he considers not to be Trust Documents within the definition in the Trust Records Orders. These were identified in the Hughes Affidavit.[17]
31 In her affidavit, Ms Ford deposes to and exhibits the significant correspondence between ABL and LHPW between 16 October 2020 and 10 March 2021, primarily regarding the Excluded Documents and Other Withheld Documents, particularly in respect of legal professional privilege and confidentiality.[18] The parties' respective positions are set out in some detail in that correspondence and summarised in the Ford Affidavit. Other than noting this, I do not set it out further as many of the issues were raised in the parties' submissions before me, and to do so here would be unnecessarily repetitive.
The Court's approach to considering the disputed documents
32 By the time the matter came on for hearing in respect of the disputed documents, the position of the parties had been narrowed somewhat in that some documents or categories were no longer challenged by the Plaintiffs or sought to be excluded by the Trustees. These reasons deal only with those documents remaining in dispute.
33 The disputed documents were divided into categories and the document numbers for the disputed Excluded Documents and Other Withheld Documents for each category were listed in separate schedules to the Hughes Affidavit ('Hughes Schedules').
34 It is convenient to consider the matters raised in respect of the disputed documents by considering each issue separately, setting out the parties' submissions and evidence on a particular issue and my analysis of that issue.
35 The issues can conveniently be separated as follows:
(i) Whether the Evidence Act 2008 (Vic) ('Evidence Act') or the common law applies to considerations regarding legal professional privilege in these circumstances;
(ii) General principles regarding legal professional privilege;
(iii) The circumstances in which a trustee may validly withhold documents from a beneficiary on the grounds of privilege; and
(iv) Waiver or loss of privilege.
(i) Confidential information of beneficiaries; and
(ii) Confidential information of third parties and/or information provided to the Trustees on a confidential basis by third parties.
36 After considering these issues, it is then necessary, by reference to them where appropriate, to deal with the documents/categories of documents which remain in dispute by considering each of the Hughes Schedules. The Hughes Schedules correspond either with the privilege issue or the confidentiality issue, and so I will deal with them in a grouped way.
37 It was common ground that the Court has the power to inspect documents when determining disputes in respect of legal professional privilege and that whether or not to do so is an exercise of the Court's discretion. It was also common ground between the parties that I should inspect the documents if I considered it necessary or appropriate to do so. Indeed, on a number of occasions the parties urged me to inspect the documents for myself.
38 The Trustees have provided me with copies of all of the disputed documents. Where documents have been produced to the Plaintiffs in redacted form, the Trustees have provided me with both the redacted and unredacted versions.
39 The Trustees have also provided me with a list of documents, being a sub-set of documents from the relevant Hughes Schedules, which they propose be used by me if I decide to inspect the documents by taking a sample of documents ('Proposed Sample List'). Counsel for the Trustees informed me that the Proposed Sample List had been compiled using the following approach:[19]
(a) Where the particular Hughes Schedule contains only a small number of documents, they have included all of them (excepting any duplicates);
(b) Where the particular Hughes Schedule contains a large number of documents or a number that they consider excessive for review, they have listed a sample of them;
(c) The sampling is based on what they consider to be a fair spread; and
(d) Where a particular document has been referred to by the Plaintiffs, that has been included in the sample.
40 I have not adopted the sampling approach or followed the Proposed Sample List. I have inspected documents specifically referred to by the parties, and I have also inspected documents where I have considered it necessary to do so. In respect of the latter, those instances and my reasons for doing so are indicated where discussing the particular categories of documents. I have come to the view that if satisfied on the affidavit evidence that the category of documents is able to be withheld by the Trustees or is to be produced by the Trustees, then it is not necessary for me to inspect some of the documents in that category by way of sampling (whether using the Proposed Sample List or not) in order to verify the evidence or classification.
41 The Trustees have excluded documents from production which they consider to be the subject of claims to legal professional privilege. Broadly speaking, these are either privilege claims belonging to one or more of the Trustees, or privilege claims belonging to someone else. Where the privilege claims are the latter, they are the subject of separate Hughes Schedules and I will deal with them separately.
Does the Evidence Act or the common law apply in these circumstances?
42 A threshold issue arises as to whether the Evidence Act or the common law applies here.
43 The Trustees contend that the Evidence Act applies on the basis that the Trust Records Orders is an order requiring the disclosure of documents and thus fall within the ambit of s 131A of the Evidence Act.[20]
44 Section 131A of the Evidence Act deals with the application of Part 3.10, dealing with privileges (including client legal privilege) to preliminary proceedings of courts. That section provides as follows:
(a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1C or 3; and
(b) the person objects to giving that information or providing that document -
the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.
(2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following -
(a) a summons or subpoena to produce documents or give evidence;
(b) pre-trial discovery;
(c) non-party discovery;
(d) interrogatories;
(e) a notice to produce;
(f) a request to produce a document under Division 1 of Part 4.6;
(g) a search warrant.
45 The Trustees point to the nature of the Trust Records Orders, in that those orders were made by his Honour applying the discretionary approach in the Court's supervisory jurisdiction rather than by applying the proprietary approach which his Honour had held was not applicable in these circumstances. The Trustees say that an exercise of the discretion in the Court's supervisory discretion is what brings the Trust Records Orders within the definition of disclosure requirement contained in s 131A(2) of the Evidence Act.
46 The Plaintiffs submitted that the Evidence Act does not apply in these circumstances, as it applies to evidence in proceedings in Victorian courts, and that the obligation of trustees to produce documents to beneficiaries does not really dovetail into a proceeding. The Plaintiffs say that unless the circumstances give rise to a proceeding under the Evidence Act, then that Act does not apply and the common law applies. Counsel for the Plaintiffs referred to Sarto v Sarto[21] in this regard, in which Derham AsJ considered whether the Evidence Act or the common law applied to whether the reference in particulars to a pleading to a 'without prejudice' document should be struck out.
47 Counsel for the Plaintiffs submitted that at the end of the day, the analysis of the issues was the same and that no practical difference arises, except in that common or joint privilege may be different at common law than under the Evidence Act.
48 Counsel for both parties indicated that they had been unable to locate any cases dealing with the application of the Evidence Act to circumstances such as these.
49 In my view, the Evidence Act applies in the circumstances of this case, as:[22]
(a) Production of documents by the Trustees is being made (or resisted) in the context of orders having been made by the Court, and so prima facie falls within the definition of 'disclosure requirement';
(b) The Trust Records Orders were made in this proceeding, rather than a separate proceeding in which the only relief sought was the production of documents by a trustee to a beneficiary. However I must say that on its own, I do not regard this factor as determinative or of significant weight; and
(c) Importantly, regard must be paid to Paragraph Five of the Trust Records Orders, where it is stated that to the extent documents are produced pursuant to Paragraph One (that is, by the Trustees producing for inspection copies of Trust Documents), it shall not be necessary for the party producing them to also make discovery of them. Undoubtedly, discovery of those documents would be governed by the Evidence Act. It would be inefficient and confusing for documents produced pursuant to Paragraph One to be treated differentially according to whether they are also discoverable. It seems to me highly likely that some documents produced pursuant to Paragraph One are unlikely to also be discoverable, and the assessment of them as to privilege has already been carried out by the Trustees, presumably by applying the Evidence Act.
General principles regarding legal professional privilege
50 Section 118 of the Evidence Act deals with legal advice privilege, providing as follows:
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of -
(a) a confidential communication made between the client and a lawyer; or
(b) a confidential communication made between 2 or more lawyers acting for the client; or
(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person -
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
51 Section 119 of the Evidence Act deals with litigation privilege, providing as follows:
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of -
(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b) the contents of a confidential document (whether delivered or not) that was prepared -
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
52 Section 122 of the Evidence Act relevantly provides as follows:
(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.
(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) if the client or party is a body established by, or a person holding an office under, an Australian law - to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held; or
(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.
53 The principles in respect of client legal privilege[23] are well established and there is little utility setting out a fulsome discussion of them here, unless that is necessary to deal with the parties' submissions. Generally speaking, the parties did not appear to differ on the general principles regarding privilege.
54 The common law principles inform the content and application of ss 118 and 119.[24] In the context of applying the Evidence Act, in IOOF Holdings Ltd v Maurice Blackburn Lawyers Pty Ltd,[25] Elliott J stated that the principles applicable to privilege "are not controversial" and summarised them as follows:[26]
(1) The party claiming the privilege bears the onus. That onus will only be discharged if the party establishes facts from which the court may determine that the privilege is being properly claimed.
(2) "Purpose" in "dominant purpose" means the purpose which led to the creation of the document or the making of the communication.
(3) The "dominant purpose" is the purpose which was the ruling, prevailing or most influential purpose at the time the document was brought into existence.
(4) There can be only 1 dominant purpose. If there are 2 purposes of equal weight, neither fits the description of a "dominant purpose".
(5) If a dominant purpose existed, that dominant purpose must be determined objectively, having regard to the evidence, the nature of the document and the parties' submissions. That said, evidence of the subjective purpose of the person making the communication or creating the document is relevant.
(6) Ordinarily, the relevant purpose is that of the person who brings into existence the document which includes the privileged communication, but this will not always be the case.
(7) As the test is directed towards the purpose of bringing the document into existence, a copy of a non-privileged document may be privileged.
(8) The material relied upon by the person claiming privilege must be focused and specific. Formulaic and bare conclusory assertions are not sufficient.
(9) With respect to advice privilege, in considering whether a communication is for the purposes of legal advice, the purposes must be construed broadly. Although it does not extend to pure commercial advice, legal advice, in this context, includes any advice as to what should prudently and sensibly be done in the particular legal circumstances in which the client finds itself.
(10) Further to subparagraph (9), a document created by a lawyer that records her or his legal work carried out for the benefit of the client, such as a research memorandum, a summary of documents or a chronology, will be protected by privilege whether or not the document is provided to the client. Similarly, notes and other material created by the client that relate to the legal advice sought (whether or not actually communicated to the lawyer), or that relate to communications with the lawyer, may be privileged where such documents meet the relevant "dominant purpose" test.
(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.
(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.
(13) A law firm or a company may be a "client" if it engages or employs its own employee lawyer, 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.
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.
(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.
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.
When a trustee can validly withhold documents from a beneficiary on the grounds of legal professional privilege
56 The Plaintiffs submitted, and the Trustees acknowledged, that specific principles apply to the circumstances in which a trustee can validly withhold documents from a beneficiary on the grounds of legal professional privilege.
57 The Plaintiffs submit that the usual position in relation to communications between lawyers for a trust, and the trustee is set out at Lewin on Trusts:[28]
Normally the court's discretion under the supervisory jurisdiction will be exercised to order disclosure of cases submitted to, and opinions of, counsel taken by the trustees, and other instructions to and legal advice obtained from the trustees' lawyers, for the guidance of the trustees in the discharge of their functions as trustees, and paid for from the trust fund. Even though such advice is privileged, the privilege is held for the benefit of the beneficiaries, not for the personal benefit of the trustees, and so privilege is no answer to the beneficiary's demand for disclosure. A beneficiary should, of course, seek disclosure from the trustee, or, if necessary, in proceedings to which the trustee is a party, and not directly from the lawyer who gave the advice since the lawyer is bound by privilege and is in no position to waive it at the instance of a beneficiary.
58 The Plaintiffs submit that this principle extends to advice obtained from the trustees' solicitors or counsel as to the manner in which they are in law entitled to exercise their powers or discretions,[29] noting that it excludes advice which may reveal the reasons for exercising discretion.
59 The Plaintiffs say that this principle was applied in Murray v Schreuder[30] to order production of any advice provided by, and invoices sent by, the solicitors to the executor of an estate, and that the Trust Records Orders include, in the definition of Trust Documents, documents 'recording or evidencing professional advice' about the administration of the Trusts.
61 Ordinarily, a trustee is precluded from maintaining a claim of legal professional privilege against a beneficiary in two circumstances: first, where the confidential communications, information or documents relate to legal services in connection with the management or administration of the trust and, second, where the trustee (in his or her capacity as trustee) and the beneficiary (in his or her capacity as a beneficiary, and either alone or as a member of a class of beneficiaries) have a joint interest in the subject matter of those confidential communications, information or documents when they occur or come into existence.[31] A beneficiary will not, however, be entitled to production of a privileged communication if the communications, information or documents relate to legal services obtained for the benefit of the trustee personally or in legal proceedings commenced by a beneficiary against a trustee - for example, if the trustee seeks legal advice as to his or her personal rights or liabilities in connection with an alleged breach of trust or threatened legal proceedings against him or her personally.[32] I shall refer to circumstances where a beneficiary is not entitled to production of privileged documents as the 'Trustee's Withholding Rights'.
62 As to documents recording confidential communications which were obtained by the trustee in anticipation or in the course of defending proceedings commenced by a beneficiary (which would be the subject of litigation privilege, if not advice privilege), the position was expressed by Brereton J in Hancock v Rinehart in the following terms:[33]
There are some exceptions. Documents relating to the trustees' defence of proceedings brought against them by the beneficiaries will, at least ordinarily, be documents of the trustees personally, not trust documents. And at least in the absence of an action impugning their good faith, trustees may be permitted to withhold documents which evidence their confidential communications and considerations, as they are not obliged to disclose their reasons ... (citations omitted)
63 Thus, a trustee may maintain a claim of legal professional privilege against the beneficiary when the privilege attaches to confidential communications obtained by the trustee for his or her personal benefit and not in relation to the administration of the trust generally, including where such communication arise in the course of defending anticipated proceedings commenced by the beneficiary against the trustee. The position is expressed in Lewin on Trusts,[34] in a passage cited with approval by Bergin CJ in Eq in Gray v BNY Trust Co of Australia Ltd, in the following terms:[35]
Legal advice and communications with lawyers in breach of trust actions
Trustees who are sued for breach of trust or other relief in contentious trust proceedings are not liable to disclose legal advice obtained and paid for by them for the purpose of their defence. They may assert privilege for such advice in the normal way and beneficiaries' rights to disclosure under trust law make no difference. Similar considerations apply to communications with their lawyers for the purpose of their defence after commencement of proceedings, and in our view communications with their lawyers (paid for by themselves) before the commencement of proceedings in relation to their liability for breach of trust, though not to communications before commencement of proceedings in relation to the trust property.
64 Although this passage from Lewin on Trusts may be taken to suggest that, in the UK at least, a condition of any successful claim of privilege by a trustee is that the trustee has paid for the relevant legal advice itself, that is not the case in Australia. For example, no such condition was required in Schreuder v Murray, and in Gray Bergin CJ in Eq eschewed the suggestion that, in order to successfully claim privilege, a trustee must have paid for the relevant legal advice or services.[36] It is now settled that the "exceptions to the prima facie position that advice charged to the trust cannot be withheld include where the communication was made not for the trustee's guidance in administration of the trust, but to enable him or her to resist litigation by a beneficiary."[37] Accordingly, whether the Trustees paid for legal advice or legal work is not determinative of the Trustees' claims of privilege.
65 The Trustees submit the key focus is on whether the trustee and beneficiary have a joint interest in the advice, taking into account the nature of the relationship between them at the time (dealt with in more detail below).[38] In Dura, Macaulay J referred to Yunghanns v Elfic Pty Ltd (No 2),[39] where Warren J (as her Honour then was) cited with approval the following statement from Phipson on Evidence:[40]
But where the communications relate to matters outside the joint interest, they are privileged even as against a person bearing the expense of the communications - eg communications between ... a trustee and his solicitor as against the cestui que trust, where the communication is not made for the former's guidance in the trust, but to enable him to resist litigation by the latter; or where it concerns his character, not as trustee, but as mortgagee of the client.[41]
66 The Plaintiffs' Outline deals with the ordinary situation regarding privilege as between trustee and beneficiary, but does not deal with the exception to that, being the one identified by the Trustees in paragraph 61 above. Hence the situation is rather more nuanced and complex than a reading of the Plaintiffs' Outline would suggest.
67 It is clear that the exception referred to in paragraph 61 above is well recognised by the law.
68 I prefer the summary of the relevant law as set out in paragraph 61 above.
69 Further, it is noted that the passage from Hancock v Rinehart cited in paragraph 62 above and that from Lewin on Trusts cited in paragraph 63 above refer to actions where the trustee is defending an action brought by a beneficiary. In the instant case, we have an action brought by the Plaintiffs against the Trustees in the Trustee Removal Proceeding, such that the Trustees are defending a proceeding brought against them by beneficiaries, however, we also have an action in which one of the Trustees is bringing an action against Kairu Chan, being the Golden Fin Proceeding, such that in that action a Trustee has commenced proceedings against one of the beneficiaries. What, then, is the situation where a trustee is the plaintiff?
70 The Trustees submit that issues in the Golden Fin Proceeding are also issues in the Trustee Removal Proceeding. They also say that they do not understand the principle regarding privilege in the context of trustee and beneficiary to take issue with whether the trustee is a plaintiff or a defendant. What matters, say the Trustees, is the contest/dispute between the trustee and the beneficiaries. They contend that if a beneficiary could have recourse to trust documents when in litigation against the trustee, that would offend the trustee's rights in respect of legal professional privilege.
71 As the Plaintiffs stated during oral submissions, the key question is whether the legal advice or services were obtained for the purposes of the Trusts or for the Trustees personally. The Plaintiffs acknowledged that a common application of the exception to a beneficiary's access to privileged documents is where there are hostile proceedings between trustee and beneficiary. However, they say that it is not the case that any hostile litigation between them attracts privilege; rather, only hostile litigation by a beneficiary against the trustee personally, for example for breach of trust, falls within the exception. The Plaintiffs say that for the Trustees to resist disclosure, they have to establish that the purpose of the privileged communication was in the nature of the Trustees acting personally.
72 Generally speaking, I accept the Trustees' submissions in this regard. It does not matter whether the Trustees (or one of them) commenced the litigation or they are defending litigation brought against them by beneficiaries. The key point is that there is litigation between them, and where that litigation involves the Trustees personally, the Trustees are, subject to any specific matters to be considered below, entitled to resist disclosure of certain Trust Documents on the grounds of legal professional privilege.
73 I also accept the Trustees' submission that the key focus is on whether the trustee and beneficiary have a joint interest in the advice and the nature of the relationship between them at the time (dealt with in more detail below).
74 Mr Hughes deposes that LHPW was retained on 8 June 2017 to issue the Golden Fin Proceeding and on 29 August 2017 to defend the Trustee Removal Proceeding and that the terms of LHPW's retainers are set out in letters of engagement bearing those dates.[42] He says that the work performed by LHPW pursuant to those engagement letters has involved providing the Trustees with professional legal services in relation to all aspects of the litigation, including ancillary disputes and issues arising throughout the course of the proceedings.[43]
75 Mr Hughes also says that for the period between the commencement of LHPW's engagement to 14 October 2019, being the date Irving was appointed as a director of Golden Fin and Vinrose, LHPW corresponded with Luisa and Mariano in their capacity as directors of the Trustees, in order to obtain instructions on behalf of the Trustees in relation to work being undertaken pursuant to the engagement letters. For the period after 14 October 2019, LHPW corresponds with Luisa and Irving in their capacity as directors of the Trustees to obtain instructions, sometimes obtaining instructions from Mr Freeman in respect of particular matters at the request of Luisa and/or Irving.[44]
76 Mr Hughes deposes that Mr Senathirajah QC and Mr Graham QC have been engaged by LHPW to provide specialist legal advice and advocacy to the Trustees in their joint defence of the Trustee Removal Proceeding and to provide specialist legal advice and advocacy to Golden Fin in the commencement and continuation of the Golden Fin Proceeding.[45]
77 It is self-evident that the relationship between LHPW and the Trustees (along with those who communicate on their behalf) is that of solicitor and client and is therefore, subject to the general principles set out in the previous section, one where communications between them are protected by legal professional privilege. The same applies in respect of the Trustees and Counsel.
78 Specific issues as to whether the Trustees obtained legal advice or services which are the subject of the Excluded Documents in their personal capacity, in other words, whether these fall within the Trustees' Withholding Rights, will be dealt with in the discussion of the Hughes Schedules.
79 The Plaintiffs submit that even if there is a basis for the Trustees to assert privilege, the Trustees have waived it, such that they cannot now resist disclosure to the Plaintiffs.
80 The Plaintiffs recognise that the touchstone of waiver of privilege is the inconsistency between the client's conduct and the maintenance of privilege, which is the common law test propounded in Mann v Carnell.[46]
(a) The facts demonstrate that the bulk of the documents over which privilege is claimed have not been held confidentially by each Trustee as 'a client', but shared with people who are agents of all of the Trustees, Mariano and entities who are not parties to the litigation. All of the disclosures have been voluntary. There is no evidence that documents have been shared for limited or confidential purposes.
(b) It is evident from the production pursuant to the Trust Records Orders so far that Trust Documents have not been kept separately in relation to each of the trusts. There is no evidence that the documents for which privilege is claimed have been managed or kept solely for the Trust to which it pertains.
(c) It appears that Grace Culvenor is the bookkeeper for, and that Morans are the accountants for what is described as 'the Valmorbida group'.[47] The 'Valmorbida group' also appears to include entities who are not parties to the proceeding.[48] Mr Freeman's company Applebay was apparently engaged by Golden Fin to provide services both to Mariano and 'the Valmorbida Group.'[49] It is said that Freeman is the conduit for instructions.[50] No distinction is made in the Hughes Affidavit between instructions given for one entity as distinct from another.
82 From these matters, the Plaintiffs submit that it appears that documents of the Trusts are shared with third parties, being Ms Culvenor, Morans and Mr Freeman, without any cloak of confidentiality. None of them is a confidential agent of any one of the Trusts, but an agent for all of them (and others).
83 The Plaintiffs do not accept that the Trusts, and their Trustees, or the entities in the Valmorbida Group have a common interest which would justify them being treated as having a common interest privilege. In this regard, the Plaintiffs submit that:
(a) Trustees have a duty to keep their trust documents discrete and separate.[51] At this point, I would interpose to say that I do not regard the statement contained in the footnote to either support this contention or to be apposite to the situation at hand: we do not have one trustee who is trustee of a number of trusts, but each Trustee is a trustee of one Trust;
(b) Trusts are stand-alone entities which do not, and cannot, be considered as a group;[52]
(c) The separateness of the entities is demonstrated by the Ford Affidavit. The three Trusts each have their own trust deeds[53] and set of beneficiaries[54] (neither of which is identical to those of either of the other two Trusts). They have separate assets. They each have mutual debts or credits or both, some of which are the subject of allegations in the proceeding. They do not have a 'common interest' in the proceeding;
(d) The Trustees have engaged the one lawyer, but the question is whether it is a common legal enterprise. They have different interests in the outcome of the proceeding. Their interests in the litigation are different than, for example, two co-tenants, or two partners, who join to initiate or to defend proceedings in relation to the subject property or the partnership.[55] There must be an 'identity of interests' and if parties have interests which are 'selfish and potentially adverse' there is not an identity of interest;[56]
(e) Mariano has, since 28 August 2020 been separately represented. That of itself demonstrates the lack of common interest between him and the Trustees; and
(f) By being put into the shared possession of the other Trustees (or their agent or agents), any document to which a particular Trustee might have had a claim of privilege has lost the necessary quality of confidentiality for privilege to be maintained and any privilege has thus been waived.
84 The Trustees rely on the application of s 122 of the Evidence Act in respect of the Plaintiffs' submissions regarding waiver. They say that s 122(2) states that neither s 118 nor s 119 prevents the adducing of evidence in circumstances where "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". Section 122(3) provides that a client or party is taken to have acted in the way to which s 122(2) refers if the "client or party knowingly and voluntarily disclosed the substance of the evidence to another person" or "the substance of the evidence has been disclosed with the express or implied consent of the client or party". Section 122(2) is expressed to be subject to s 122(5), whereby a client or party is not taken to have acted in a "manner inconsistent" merely because inter alia: the substance of the evidence has been disclosed in the course of making a confidential communication or preparing a confidential document (s 122(5)(a)(i)); of a disclosure which concerns a matter in relation to which the same lawyer is providing professional legal services to both the client and the other person to whom the disclosure is made (s 122(5)(b)); or 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 (s 122(5)(c)).
85 The Trustees submit that waiver under s 122(2) of the Evidence Act does not operate where the disclosure is among parties who have a common interest in the maintenance of the privilege. Parties have the requisite common interest when they have a common interest in the outcome of litigation. The fact that parties engage and retain the same firm of solicitors is a strong factor in establishing the existence of a common interest. As explained in Farrow v Webb:[57]
Two or more persons may join in communicating with a legal adviser for the purpose of retaining his or her services or obtaining his or her advice. The privilege which protects these communications from disclosure belongs to all the persons who joined in seeking the service or obtaining the advice. The privilege is a joint privilege. So is it also if one of a group of persons in a formal legal relationship communicates with a legal adviser about a matter in which the members of the group share an interest. Communications by one partner about the affairs of the partnership or a trustee about the affairs of the trust are examples. Implicit in the relationship is the duty or obligation to disclose to other parties thereto the content of the communication. Accordingly no privilege attaches to such communications as against others who, with the client, share an interest in the subject matter of communication.
86 The Trustees also rely on Buttes Gas and Oil Co v Hammer (No 3), where Lord Denning explained:[58]
... It often happens in litigation that a plaintiff or defendant has other persons standing alongside him - who have the self-same interest as he and who have consulted lawyers on the self-same points as he - but these others have not been made parties to the action. Maybe for economy or for simplicity or what you will. All exchange counsel's opinions. All collect information for the purpose of litigation. All make copies. All await the outcome with the same anxious anticipation - because it affects each as much as it does the others ...
In all such cases I think the courts should - for the purposes of discovery - treat all the persons interested as if they were partners in a single firm or departments in a single company. Each can avail himself of the privilege in aid of litigation. Each can collect information for the use of his or the other's legal adviser. Each can hold originals and each make copies. And so forth ...
87 As I apprehend the Plaintiffs' submissions, they contend that one of the necessary elements for maintaining a claim to privilege, being confidentiality, is missing here. That is, by Trust Documents being disclosed to those described within those submissions as third parties, the Trustees have waived privilege in the Trust Documents.
88 I also apprehend the Plaintiffs' submission to be that to the extent that common interest privilege is relied on as between the Trustee defendants, there is no relevant common interest capable of being protected by that principle.
89 As the Trustees note, the onus is on the person alleging loss of privilege (in this instance, the Plaintiffs), to satisfy the Court that privilege in the documents has been waived.[59]
90 Generally speaking, I do not regard disclosure or sharing of privileged documents by a Trustee with Morans, Ms Culvenor, Mr De Silva, Mr Freeman or Applebay, Luisa, Irving, Mariano and Kyriacou as waiving confidentiality. At the relevant times, these persons were either employees or agents of the Trustees. As such, they come within the definition of "client" for the purposes of Division 1 of Part 3.10 of the Evidence Act.[60] To the extent that they were not employees or agents, they were directors of the Trustees, and it can hardly be said that directors would not fall within the cloak of confidentiality. As the external accountants of the Trustees, Morans would either be considered to be agents or as within the cloak of confidentiality. Entities within the Valmorbida Group can also be expected to maintain each other's confidentiality.
91 Accordingly, I do not consider waiver to have occurred insofar as reliance on disclosure or sharing of documents with and between those persons is concerned.
92 So far as the question of the disclosure or sharing of privileged documents between the Trustees is concerned, s 122(5)(b) applies. This section does not require the establishment of a 'common interest' per se, rather, waiver is not taken to have occurred where the disclosure is by a client to another person if the disclosure concerns a matter in which the same lawyer is providing or is to provide professional legal services to both the client and that other person. Here, generally speaking, that is the case. For the period when the same lawyers were acting for both the Trustees and Mariano, this also applies.
93 If it were necessary to deal with the question of whether the Trustees (and while he was represented by LHPW, Mariano) have a common interest, I prefer the Trustees' submissions. Unless it can be established that a Trustee has an interest different to, or hostile to, that of another Trustee, in circumstances where they are represented by the same lawyers, they have a common interest in the way articulated by Lord Denning in Buttes Gas and Oil Co v Hammer (No 3).
94 It is convenient to set out here the parties' submissions as to confidentiality which are of general application and my consideration of them, which will then inform the discussion of the relevant Hughes Schedules.
95 The Trustees have withheld certain documents or redacted portions of documents on the basis that those documents contain:
(a) Confidential information provided by a beneficiary to the Trustees;
(b) Confidential information provided to the Trustees by a third party in circumstances of confidence; and
(c) The sensitive and confidential details of third parties.
96 The Plaintiffs submit that a mere assertion of confidentiality, which is what they say the Hughes Affidavit at paragraphs 102-105 comprises, is not enough to attract the exclusions set out in the Trust Records Orders. They say that it must be shown that the document records or evidences information provided in confidence by a beneficiary where such document contains confidential information. This requires a two-step process: is the information confidential and was it provided confidentially.
97 The Plaintiffs acknowledge that where beneficiaries provide information to a trustee for the purpose of the trustee exercising a dispositive discretion, the information is protected if it tends to reveal the reasons for the trustee making the decision it did. However, they say that this does not extend to all correspondence between beneficiary and trustee.
98 The Plaintiffs made extensive oral submissions to the effect that the terms of the Trust Records Orders do not permit the Trustees to withhold documents of other person who are not beneficiaries on the grounds that the contain confidential information and were provided to the Trustees on a confidential basis. They say that paragraph D of the definition of Excluded Documents covers only such information provided by beneficiaries. The Plaintiffs reject the Trustees' submission that since Delany J followed Deutsch v Trumble[61] when making the Trust Records Orders he must have intended it to extend to third parties.[62]
99 The Plaintiffs also say that in dealing with information said to be confidential to various corporate entities and persons, the Hughes Affidavit[63] does not evidence the provision of the documents to the Trustees on a confidential basis.
100 According to the Plaintiffs, it is virtually impossible to determine from the extent of the redactions whether in fact the information contained therein is confidential. They say that an explanation from the Trustees is required as to why each document contains confidential material and that it was provided confidentially.
101 The Trustees submit that they are entitled to withhold from production confidential information falling within the three categories referred to in paragraph 95 above, in accordance with the Trust Records Orders and established principle in relation to access by beneficiaries to trust documents.
... the need to reconcile the undoubted duty of a trustee to make disclosure to beneficiaries of information about the trust, and the undoubted duty to permit the inspection of trust accounts and trust documents, with the equally fundamental obligation of a trustee to conduct the affairs of a trust, and particularly a trust which involves the conduct or management of a business, in the interests of the beneficiaries as a whole.
103 According to Doyle CJ, this "may entitle a trustee to decline to provide information to particular beneficiaries, when the trustee has reasonable grounds for considering that to do so will not be in the interests of the beneficiaries as a whole, and will be prejudicial to the ability of the trustee to discharge its obligations under the trust".[66] The discretion cannot be used as an excuse for paternalism or to discriminate between beneficiaries.[67] .Rather, the discretion reflects the fact that there may be circumstances where "the trustee can properly claim that there are trust documents of a confidential nature that a trustee may refuse to disclose to particular beneficiaries in the interests of the discharge of the trustee's duties to the beneficiaries as a whole".[68]
104 The Trustees also submit that a beneficiary is not entitled as of right to inspect trust documents where those documents contain information that has been provided on a confidential basis to the trustee. In this regard, they rely upon Schmidt v Rosewood Trust Ltd,[69] where Lord Walker stated:[70]
However, the recent cases also confirm (as had been stated as long ago as In re Cowin Ch D 179 in 1886) that no beneficiary (and least of all a discretionary object) has any entitlement as of right to disclosure of anything which can plausibly be described as a trust document. Especially when there are issues as to personal or commercial confidentiality, the court may have to balance the competing interests of different beneficiaries, the trustees themselves, and third parties. Disclosure may have to be limited and safeguards may have to be put in place. Evaluation of the claims of a beneficiary (and especially of a discretionary object) may be an important part of the balancing exercise which the court has to perform on the materials placed before it. In many cases the court may have no difficulty in concluding that an applicant with no more than a theoretical possibility of benefit ought not to be granted relief.
105 Similarly, in Hartigan Nominees Pty Ltd v Rydge,[71] Mahoney JA held that a memorandum of wishes provided by a third party to the trustees was not to be inspected by the beneficiary on the basis that it had been provided to the trustee "upon a confidential basis".[72] This was because, as Mahoney JA explained, confidentiality "is a proper reason for not requiring disclosure of documents or information which otherwise should be disclosed to a beneficiary."[73] Sheller JA reached the same conclusion, observing that confidentiality had emerged as "another basis for requiring trustees not to disclose documents in their possession" and that the learned authors of Jacobs, referring to Re Londonderry's Settlement, had observed that the ratio of that case "may be extended to other documents which have come into the trustees' hands under a duty of confidentiality".[74]
106 The Trustees submit that it is plain from Hartigan Nominees that a trustee is not obliged to produce, and a beneficiary is not permitted to inspect, documents containing information that a trustee receives on a confidential basis. That this is the import of Hartigan Nominees was certainly the view taken by Gzell J in Avanes v Marshall. More recently in this Court in Deutsch v Trumble,[75] Hargrave J relied on Hartigan Nominees in refusing beneficiaries access to documents containing the confidential information of third parties. Hargrave J articulated the applicable principles in the following terms (in a passage to which Delany J had regard in defining the "excluded documents" for the purposes of the Trust Records Orders):[76]
As appears above, the proprietary approach is subject to the exception that a trustee need not produce documents disclosing reasons for the exercise of discretionary powers. The parties accepted another exception: that, even on the proprietary approach, the trustee is not required to produce documents containing confidential information of third parties. I accept that, ordinarily, a trustee is not obliged to produce documents imparted to him, her or it in confidence in connection with the administration of the trust. This includes confidential written communications, and notes of oral communications, to and from beneficiaries or their representatives.
107 The Trustees also rely on Lewin on Trusts, where it is stated that:[77]
A case where trustees have rights of confidentiality needs to be distinguished from a case where trustees have obligations of confidentiality to strangers of the trust which would be breached by disclosure to a beneficiary seeking disclosure from the trustees. If the trustees have properly incurred such obligations in the administration of the trusts, it would, in our view, require the most exceptional circumstances to persuade the court to intervene in the administration of the trusts by making an order requiring the trustees to breach their obligations. In such cases, confidentiality must be protected in order that the trustees may meet their legal obligations properly incurred on behalf of the trust.
108 The Trustees submit that what we are concerned with in this regard is the proper administration of trusts, and if trusts cannot be administered in a way that trustees can engage with others and give them assurances about confidentiality, then the interests of all beneficiaries may be affected.[78] They say that a trustee has a discretion to withhold confidential material from beneficiaries where they regard that as being in the interests of all beneficiaries.[79]
109 The Trustees submit that they are entitled to withhold from production confidential information falling within the three categories referred to in paragraph 95 above, in accordance with the Trust Records Orders and established principle (as summarised above) in relation to access by beneficiaries to trust documents.
111 To submit, as the Plaintiffs did, that the Trust Records Orders apply only to withholding confidential documents/information provided by a beneficiary (that is, Reason D, relying on paragraph D of the definition of Excluded Documents) is to ignore the terms of sub-paragraphs (b)(ii) of Paragraph Two of the orders, being the category I have referred to as Other Withheld Documents.
112 Further, the principles and authorities relied on by the Trustees, as set out in paragraphs 102 to 107 above, mean that documents/information falling within categories (b) and (c) set out in paragraph 95 above fall within the category of Other Withheld Documents. Providing the evidence establishes that the documents are confidential and have been provided in circumstances where they are to be kept confidential, then the Trustees are justified in withholding them from production to the Plaintiffs. It is no answer, as the Plaintiffs appeared to submit, to say that some of these documents go to transactions of the Trust: that simply establishes that they are Trust Documents. Rather, the question is whether the Trustees are entitled or obliged to withhold them and, as I have indicated, I have concluded that they are so entitled or obliged, subject to the evidence establishing confidentiality.
113 Any issues as to the evidence relied upon in respect of confidentiality will be dealt with in the specific context of the relevant Hughes Schedules.
Application to disputed documents as set out in the Hughes Schedules
Schedules concerning documents withheld on the basis of privilege claims by the Trustees
114 Hughes Schedule 2 contains 20 documents which are invoices from counsel for the Trustees, predominantly Mr Senathirajah QC and Mr Graham QC, to the Trustees.[80] Hughes Schedule 3 contains 101 documents which are invoices issued by LHPW to the Trustees or any one of them for professional legal services undertaken on their behalf in relation to various matters including for work undertaken pursuant to the engagement letters described in paragraph 7[81] above.81
115 The documents in Hughes Schedules 2 and 3 are said to be privileged by reason of key 1.4 in the Key Descriptions Document,[82] which reads as follows:
The claim for privilege is legal advice and litigation privilege and is made in respect of narrations of work in invoices prepared by legal representatives for the Trustees. The invoices were prepared in the period from April 2017 to May 2020 or thereabouts. The narrations in these documents have been redacted. They have been redacted on the basis that they are confidential communications that disclose the substance of legal advice, or otherwise disclose legal work and services undertaken for the benefit of the Trustees in anticipation of proceedings, or in commencing and progressing proceedings commenced by the Trustees against beneficiaries or third parties, or in defending proceedings commenced against the Trustees by beneficiaries and third parties. In relation to litigation privilege, this is because at the time the invoices were prepared, proceedings against the Trustees, or by the Trustees against a beneficiary, were threatened, anticipated or had commenced.
116 True it is that legal invoices themselves are not per se privileged. But to the extent that the narrations within them may tend to reveal, directly or indirectly, privileged communications, then those narrations are able to be redacted and withheld from production. In Hodgson v Amcor Ltd (No 2), Vickery J stated that where:[83]
... memoranda or bills of costs rendered by a solicitor are in detailed form and disclose, either directly or indirectly, communications concerning matters that are protected by the privilege, including instructions given by a client to his solicitors, the advice given, approaches to potential witnesses and other such things ... [s]uch memoranda and bills of costs are likewise privileged.
117 Mr Hughes deposes that he has reviewed unredacted versions of the invoices. He says that if unredacted, those narrations will disclose, directly or indirectly, the substance of legal advice provided to the Trustees or any one of them or legal work and services undertaken for the benefit of the Trustees in the Trustee Removal Proceeding and the Golden Fin Proceeding. At the time the invoices were prepared, both of these proceedings had commenced.[84]
118 In my view, it is tolerably clear from this evidence and my finding in paragraph 77 above that narrations which may reveal privileged communications are able to be redacted. I reject the Plaintiffs' submissions that the Trustees are required to go further than they do in terms of evidencing the privilege. Mr Hughes has, as I have summarised in paragraphs 74 to 76 above, deposed to the relationship between LHPW, Counsel and the Trustees, satisfying me that it is a privileged one, and he has explained the approach taken to redacting the invoices, which I accept is the correct one. I do not see how he can go further than this without revealing the very thing that is sought to be protected, being the privileged communication itself. Subject to any review by me of any of the unredacted invoices, I accept the Trustees' evidence in this regard.
119 As set out above, I reject the Plaintiffs' submissions that any privilege in these documents has been waived.
120 Consideration must then turn to whether or not the redactions are of privileged communications which the Trustees are not entitled to withhold from the Plaintiffs, or whether they fall within the Trustees' Withholding Rights.
121 Turning to that, Hughes Schedule 3 contains a number of sub-categories of invoices issued by LHPW, based on who they were issued to and in respect of which issue/proceeding.
122 The Plaintiffs' Counsel made specific oral submissions in respect of each of these sub‑categories, the general theme of which was that most, if not all, were said to relate to matters concerning the Trustees' administration of the Trusts or acts as trustees, rather than matters concerning the Trustees in their personal capacity.
LHPW invoices issued to Golden Fin regarding the Golden Fin Proceeding
123 The first of these sub-categories is described as LHPW invoices issued to Golden Fin regarding the Avoca Street development, being the Golden Fin Proceeding.
124 The Plaintiffs submit that the Golden Fin Proceeding is an application by the Trustee for a declaration that certain land is an asset of the Trust, which is an action by Golden Fin in its capacity as trustee of the Ferval Trust. Counsel for the Plaintiffs acknowledged that issues in that proceeding overlap with issues in the Trustee Removal Proceeding but says that they are distinct proceedings.
125 The Trustees submit that it is not only where a trustee obtains advice personally that it can maintain privilege against a beneficiary, referring to the submissions I have already set out above, and say that the focus has to be on the relationship between the parties. In this instance, they are not just a trustee and beneficiary, but opponents in litigation.
126 The Trustees also referred to the case of Carr v Larussa,[85] where Acting Master Strk of the Supreme Court of Western Australia concluded that where a beneficiary may obtain access to legal advice obtained by a trustee in its capacity as trustee by reason of a joint or common interest in the advice, where that advice was obtained in contemplation of adversarial proceedings between them, then:
... it is appropriate to determine the application for production by reference to the ordinary principles applicable to the protection of privileged documents, and not based on a proprietary right of a beneficiary to trust documents. The legal dispute as between trustee and beneficiary has removed the basis for the continuation of any level of common interest privilege.[86]
127 The Trustees submitted that the Court should not countenance beneficiaries using a back door to obtain the privileged documents of its adversary in the litigation. They say that in this case, the Plaintiffs are relying on their status as beneficiaries of the Trusts to peer behind the curtain in the context of large scale litigation between them and the Trustees being played out in this Court.[87]
128 In my view, in an instance such as this where the trustee is taking action against a beneficiary to recover property which it claims is property of the trust, such that the trustee and beneficiary are adversaries, it cannot be said that they have a joint or common interest in the legal advice or services obtained by the trustee. In this regard, I note the comments made by Macaulay J in Dura, where his Honour found that the relationship between trustee and beneficiary in that case was adverse and they did not share any common interest in the advice the trustee was obtaining.[88] His Honour went on to say that:
Furthermore, applying the focus, referred to by Bergin CJ in Gray's case, on the relationship between the parties at the time the documents were created, there is no doubt that when the disputed documents were created the parties were engaged in clear conflict, each separately represented by lawyers and heading towards the commencement of the very litigation in which the parties are now engaged. [89]
129 The Golden Fin Proceeding was commenced on 10 May 2017 and the first invoice listed on Hughes Schedule 3 is dated 15 May 2017. The invoices in this sub-category clearly relate to actual or anticipated proceedings in which Golden Fin and the Plaintiffs are adversaries.
130 Accordingly, the documents in this sub-category of Hughes Schedule 3 clearly fall within the Trustee's Withholding Rights.
LHPW invoices issued to Golden Fin regarding the Katsalidis Proceeding
131 The second of the sub-categories is described as LHPW invoices issued to Golden Fin re the caveat over 17 Avoca Street, being the Katsalidis Proceeding.
132 The Plaintiffs submit that this sub-category is similar to the previous one, saying that Golden Fin defended the Katsalidis Proceeding in its capacity as trustee. The Trustees say that the Second Plaintiff was also a defendant in that proceeding and was separately represented, and that Golden Fin and the Second Plaintiff did not have a joint privilege in respect of this matter.
133 If this sub-category is similar to the previous one, as the Plaintiffs submit, then it follows that the documents fall within the Trustee's Withholding Rights. I think it is clear that Golden Fin and the Second Plaintiff did not have a joint privilege, as they have not jointly sought the advice/services. More importantly, there is simply insufficient evidence before me to establish that Golden Fin and the Second Plaintiff had a common interest in the legal advice/services. The Trustees are therefore entitled to withhold these documents.
LHPW invoices issued to Maradval regarding the Bendigo Bank facilities
134 The third sub-category of documents is described as LHPW invoices issued to Maradval regarding the Bendigo Bank facilities, dated 8 June 2017, 13 September 2017 and 17 October 2018.
135 The Plaintiffs submit that the onus is on the Trustees to establish how privilege arises. They concede that the Bendigo Bank facilities are referred to in their Further Amended Statement of Claim dated 5 October 2020 in the Trustee Removal Proceeding ('FASOC') about whether proper steps were taken by the Trustee when re-negotiating those facilities. The Plaintiffs submit that the Trustees have to explain what these legal services are for and that the Hughes Affidavit describes it only in general terms. It is said that Mr Hughes does not say whether the advice/services pertain to proceedings where the Trustees' personal interests are at risk.
136 The Trustees submit that by September 2016, the Trustees and the Plaintiffs had become adversaries. They point to paragraph 75H of the FASOC, which they say shows how all the different events occurring in the trusts after the change in control following Adrian's death find their way into the case and lead to allegations of breach of trust.
137 In particular, the Trustees submit that the documents in the third sub-category of Hughes Schedule 3 all post-date September 2016, and that there are allegations in the FASOC that the Trustees or a Trustee breached its duties regarding the Bendigo Bank facilities. Therefore, they say that the subject matter of these documents falls within the issues in dispute in the Trustee Removal Proceeding.
138 In my view, when the Trustees' conduct in respect of the Bendigo Bank facilities forms part of the Plaintiffs' case against them, the parties are adversaries in the relevant sense and it cannot be said that they have a joint or common interest in the legal advice/services. Further, where these allegations are relied upon to establish a breach of trust by the Trustees, and/or to have them removed as trustees of the trust, I find it difficult to see how the Trustees' personal interests are not at risk. It follows that the Trustees are entitled to withhold these documents.
LHPW invoices issued to Golden Fin regarding other proceedings
139 The fourth sub-category of documents in Hughes Schedule 3 is described as LHPW invoices issued to Golden Fin regarding the application against Kyriacou in the Kyriacou Proceeding. The fifth sub-category of documents in Hughes Schedule 3 is described as LHPW invoices issued to Golden Fin regarding the Kyriacou Delivery Up Proceeding. The seventh sub-category of documents in Hughes Schedule 3 is described as "LHPW invoices issued to Golden Fin re Issues re Voyager CD Pty Ltd". The eleventh sub-category of documents in Hughes Schedule 3 is described as "LHPW invoices re recovering trust assets from former trustees - S CI 2017 00765 - Maradval v Admarval Pty Ltd", being the Maradval v Admarval Proceeding. It is convenient to deal with these as a group, as that is how the Plaintiffs dealt with them.
140 In respect of these sub-categories, the Plaintiffs say that there is no evidence as to how these matters go to the personal position of the Trustees. The Plaintiffs also say that so far as Golden Fin is concerned, the FASOC raises the question of the propriety of it paying for trust advice and that in the Trustees' Defence, Golden Fin says that it was acting in the course of its role as trustee.
141 The Trustees submit that the documents in these sub-categories all post-date September 2016 by which time their relationship with the Plaintiffs was adversarial; that the Voyager CD Pty Ltd issues are referred to in the FASOC, the Trustees' Defence, and Mariano's Defence in the Trustee Removal Proceeding; and Admarval is the Third Plaintiff in that proceeding.
142 In my view, the documents in these sub-categories fall within the Trustees' Withholding Rights, for the following reasons:
(a) I accept the Trustees' submissions that by the relevant time, the relationship between the Trustees and the Plaintiffs was adversarial;
(b) I repeat paragraph 138 above and consider it applies with equal force, particularly to the seventh and eleventh sub-categories; and
(c) By the time of the Kyriacou Proceeding and the Kyriacou Delivery Up Proceeding, it was readily apparent that Kyriacou was aligned with the Plaintiffs and resisting Golden Fin's requests and demands for documents, by which time Kyriacou acted on behalf of Adrian's estate. Even though Kyriacou had earlier been retained by Adrian for several years on behalf of Golden Fin, that had ceased after Adrian's death, and by November 2016 Kyriacou was writing to LHPW foreshadowing that Adrian's estate was considering whether Golden Fin was capable of fulfilling its obligations as trustee.[90] Golden Fin's and the Plaintiffs' interests in respect of these two proceedings involving Kyriacou are clearly not aligned, such that it cannot be said that any joint or common privilege arises.
LHPW invoices issued to the Trustees regarding the Trustee Removal Proceeding
143 The sixth sub-category of documents in Hughes Schedule 3 is described as LHPW invoices issued to the Trustees jointly regarding the Trustee Removal Proceeding.
144 The Plaintiffs rely on their submissions described above that the Trustees do not have a joint or common privilege and that privilege has been waived. I have already rejected those submissions.
145 In respect of this sub-category of Hughes Schedule 3, the Plaintiffs specifically submit that the Trustees have different interests in the litigation, and that while it may be said they have a common interest under s 122(5)(c) of the Evidence Act, that is very loose, as it is simply that they all wish to defeat the Plaintiffs. It is said that the allegations against them are different and that only some of them relate to the Trustees personally.
146 In support of this submission, Counsel for the Plaintiffs took the Court to some of the allegations made in the FASOC, submitting that:
(a) Paragraphs 38, 78 and 77 of the FASOC and paragraphs A to E of the prayer for relief contain allegations against each Trustee in their capacity as trustee, not against them personally, and seek to enforce the alleged joint venture agreement;
(b) Paragraphs 61A to 68N of the FASOC and paragraph F(a) of the prayer for relief go to the Plaintiffs' claim for a declaration that Admarval is the trustee of the Admarval Trust, not Maradval, so this is a trust matter and not a personal matter;
(c) Paragraphs 85Y to 85DD and 85FF and paragraph F(b) of the prayer for relief concern allegations in respect of the equalisation transactions and of false accounting, which Mariano defends and brings a counter-claim about an agreement between he and Adrian. These matters are said to go to the accounts of the Trusts, and raise two issues: did the transactions actually take place and do they properly reflect some agreement between the parties; and should the Trustees knowingly allow the accounts to stand and come to Court and ask for the Court to determine the matter, when instead they have actively defended the proceedings. It is said that what the accounts should look like is the first issue and did the Trustees act properly is the second issue. It is conceded that part of the analysis goes to the relief of seeking the removal of the Trustees;
(d) Paragraphs 85C to 85I, 85R to 85X and 85J to 85Q of the FASOC and paragraphs FA to FH of the prayer for relief go to distributions held by the Admarval and Keck Trusts for the 2015 and 2016 years which are said to be distributions for Adrian only because distribution decisions were not effectively made. The Plaintiffs say that these matters concern the Trustees in their capacity as trustees but they do have consequences for the Trustees in their personal capacity as they have done nothing about these distributions.
147 The Plaintiffs also submit that the Trustees ought to have armed the Court with evidence about which allegations are made in respect of, and which documents relate to, the Trustees as trustees or in their personal capacity.
148 In respect of this sub-category of documents, the Trustees relied on their submissions which I have already described, both generally and in respect of other aspects of Hughes Schedule 3, in particular the submission I have described in paragraph 136 above.
149 I am satisfied, based on the evidence and consideration of all of the submissions made, both general and in respect of Hughes Schedule 3, that the documents in this sixth sub-category of Hughes Schedule 3 fall within the Trustees' Withholding Rights. This sub-category concerns the Trustee Removal Proceeding, in which serious allegations are made against the Trustees by the Plaintiffs, two of whom happen to be beneficiaries of the Trusts, including wide-ranging allegations of breaches of trust and in which the removal of the Trustees on the basis of those alleged breaches is sought. It simply defies common sense that invoices in this sub-category for legal advice/services containing privileged narrations could be anything other than in the context of adversarial proceedings between trustee and beneficiary where there is no joint or common interest but adversarial interests. True it is, as the Plaintiffs submit, that some of the underlying acts of the Trustees are clearly referable to their administration of the Trusts, but to focus on that in this context is to ignore that these are the very acts which the Plaintiffs contend constitute a breach of trust. I accept the Trustees' submissions that in this context, one cannot just 'cherry pick' individual allegations in the FASOC to say that those particular allegations concern the Trustees' actions as trustees. This is particularly so when those actions are relied upon to allege a breach of trust by the Trustees.
LHPW invoices issued to the Trustees regarding general advice
150 The eighth, ninth and tenth sub-categories in Hughes Schedule 3 are described respectively as LHPW invoices issued to Golden Fin, Vinrose and Maradval re general advice, all dated 4 December 2017.
151 The Plaintiffs submit that Mr Hughes does not say why the 'general advice' is to the Trustees in their personal capacity.
152 The Trustees did not make any specific submissions regarding these three sub‑categories. I assume, however, that they rely on their general submissions.
153 Given the imprecise description of these three sub-categories, I considered it necessary for me to inspect the documents listed in these three sub-categories. Upon that inspection, I am satisfied that they fall within the Trustees' Withholding Rights and that production of unredacted copies to ABL is not required.
154 For completeness, I state that given the evidence in the Hughes Affidavit and upon consideration of the submissions, I did not consider it necessary to inspect any of the documents in Hughes Schedule 3 other than those listed in the eighth, ninth and tenth sub-categories.
155 To summarise the conclusion regarding Hughes Schedule 3, in my view all of the documents listed therein fall within the Trustees' Withholding Rights.
156 In my view, the documents in Hughes Schedule 2 fall within the Trustees' Withholding Rights, for the same reasons as set out above. In particular and given that the subject matter of the engagement of Counsel is the Trustee Removal Proceeding and the Golden Fin Proceeding,[91] it is abundantly clear that there is no joint or common interest privilege in the legal advice/services such that the Trustees do not have to produce unredacted copies of these invoices. I did not consider it necessary to inspect the documents listed in Hughes Schedule 2.
157 Hughes Schedule 6 contains 31 documents which are described as legal invoices and fee slips issued after 1 June 2020, issued by Mr Senathirajah QC and Mr Graham QC, who have been engaged by LHPW as set out above.
158 The documents in Hughes Schedule 6 are said to be privileged by reason of key 1.7 in the Key Descriptions Document,[92] which reads as follows:
The claim for privilege is legal advice and litigation privilege and is made in respect of invoices prepared by [LHPW] or counsel for, and at the request of, the Trustees. The invoices were prepared in the period from June 2020. These invoices have been excluded entirely or the narrations have been redacted on the basis that they contain confidential communications that disclose the substance of legal advice or otherwise disclose legal work or services undertaken for the Trustees' benefit in defending proceedings commenced against the Trustees by beneficiaries or in progressing proceedings commenced against beneficiaries by the Trustees. This is because, at the time that the emails and letters were prepared, proceedings by or against the Trustees had been commenced (S CI 2017 03211 and S CI 2017 01845).
159 Mr Hughes deposes that from 1 June 2020, LHPW has assisted the Trustees with all aspects of the Trustee Removal Proceeding and the Golden Fin Proceeding, save and except for ancillary issues requiring specialist advice, in continuing the engagements referred to above.[93]
160 Mr Hughes deposes that these 31 documents in Hughes Schedule 6 were excluded in their entirety, rather than being redacted and redacted copies produced to ABL. He states that the basis for excluding these documents in their entirety is that the Trustees have decided not to utilise Trust funds to discharge any legal fees incurred by them in relation to the Trustee Removal Proceeding or the Golden Fin Proceeding as and from 1 June 2020 until further notice, but reserving their right to claim reimbursement of such costs from Trust funds. He says that the Plaintiffs were informed of the Trustees' decision by letter from LHPW dated 19 August 2020. Accordingly, he considers that these documents do not fall within the definition of Trust Documents as contained in the Trust Records Orders as they do not explain any transactions of the Trusts or form the basis of any journal entry in the records of the Trusts.[94]
161 Mr Hughes also deposes that the Trustees maintain their claim of privilege over these documents and that he has reviewed them. He considers that if they were disclosed, they would disclose, directly or indirectly, the substance of legal advice or legal work or services provided in respect of the two proceedings.[95]
162 As well as submitting that the 31 documents listed in Hughes Schedule 6 are not Trust Documents and therefore do not have to be disclosed, the Trustees submit that they are privileged and not required to be produced for that reason. The Trustees rely on their submissions in respect of Hughes Schedules 2 and 3 in this regard, along with their general submissions, and also in resisting the Plaintiffs' contention that privilege has been waived.
163 The Plaintiffs also rely on their submissions in respect of Hughes Schedules 2 and 3, along with their general submissions. In addition, the Plaintiffs observe that the Trustees expressly reserve their rights to recoup costs from the Trust fund.[96] They submit that the Trust Records Order requires production of documents which record and/or explain transactions of the Trusts and of their financial position. It is not limited to the documents required to explain a line item in accounts. As much is said to be evident from the inclusion of the documents in paragraph D of the definition of Trust Documents, as to advice provided to the Trustees in relation to the administration of the Trusts. The Plaintiffs say that the conduct of litigation by the Trustees is a 'transaction', and one for which they will be seeking payment from the Trust. It is a matter which touches the beneficiary's right to documents as part of the call upon the Court's supervisory jurisdiction.
164 Paragraph D of the definition of Trust Documents is as follows: "documents recording or evidencing professional advice given to or taken by the Trustees of trusts or any one of them concerning the administration of the trusts".
165 Paragraphs A to E of the definition of Trust Documents are inclusions within the more general definition of Trust Documents contained in the Trust Records Orders, being "all written records that record and/or explain each transaction of the trusts, or of the Trustee of the trusts as the case may be and of the financial position and performance of the trusts as would enable true and fair financial statements of the trusts to be prepared and audited and for the purposes of this order includes:" (emphasis added).
166 It is clear, therefore, that the definition of Trust Documents is not confined to financial transactions of the Trusts. The definition of Trust Documents is broader than that.
167 Even if that was not the case, I do not think that the fact that the Trustees have decided not to use Trust funds to pay the invoices and fee slips the subject of Hughes Schedule 6 in circumstances where they expressly reserve the right to later claim reimbursement from Trust funds means that they are not Trust Documents.
168 Therefore, I consider that the documents in Hughes Schedule 6 should be produced to ABL, however they may first be redacted by the Trustees using the same approach as utilised in respect of Hughes Schedules 2 and 3. I have not inspected the documents in Hughes Schedule 6 as I have not considered it necessary to do so. My findings in respect of Hughes Schedules 2 and 3 are equally applicable to Hughes Schedule 6.
169 Hughes Schedule 8 contains 10 documents described as third party invoices, which are said to be privileged on the basis of key 2 in the Key Descriptions Document, which reads as follows:[97]
The claim for privilege is legal advice and litigation privilege and is made in respect of narrations of work in invoices prepared by third parties for the Trustees. The invoices were prepared in the period 5 May 2020 to 6 August 2020. The narrations in these documents have been redacted. They have been redacted on the basis that they contain confidential communications that disclose legal services or work undertaken for the Trustees in defending proceedings commenced against the Trustees inter alia by beneficiaries, namely [the Trustee Removal Proceeding].
170 Mr Hughes deposes that 8 of the documents relate to the engagement by LHPW of PKF Melbourne ('PKF'), accountants, to provide forensic accounting services to the Trustees. PKF was retained for the benefit of the Trustees jointly in relation to their defence of the Trustee Removal Proceeding and issues arising out of the litigation. Specifically, the services provided by PKF were relevant to investigating the source and accounting treatment of loan account equalisations that occurred in the accounts of Admarval, which are a said to be a key issue in this proceeding. Mr Hughes states that he has reviewed unredacted versions of the documents and considers that if fully disclosed, they would reveal confidential communications and the substance of services and advice undertaken by experts engaged for the benefit of the Trustees in their defence of this proceeding.[98]
171 Mr Hughes deposes that 2 of the documents relate to the engagement by LHPW of Scientific Document Services Pty Ltd ('SDS') who provide forensic document examination and consulting services. SDS was retained for the benefit of the Trustees jointly in relation to their defence of the Trustee Removal Proceeding. The documents have been excluded in their entirety as they disclose legal services and work undertaken for the Trustees in defending this proceeding.[99]
172 The Trustees submit that the documents, or redacted parts of them, in Hughes Schedule 8 are protected by the litigation privilege for which s 119 of the Evidence Act provides. The Trustees rely on their submissions described above.
173 The Plaintiffs submit that the analysis done by PKF, as described by Mr Hughes, is squarely a document relating to the administration of the trust. They say that the PKF report appears to have been done prior to May 2020, that PKF has not been called to give evidence in the proceeding nor to respond to any report done by the plaintiffs. They also say that the report appears to have been done to inform the Trustees about the loan accounts of the trusts. The Plaintiffs submit that the fact that the report has been obtained in the shadow of proceedings is not enough to create a privilege as against the beneficiaries, and that any privilege has been waived by the provision of the accounts to Mr Freeman, who had an email exchange with Ms Culvenor about them.
174 Of the SDS documents, the Plaintiffs submit that these documents do not appear to go to anything raised on the pleadings, as the pleadings do not allege forgery. They say that it is unclear what these documents are for, and that Mr Hughes does not explain how they relate to the Trustees' defence of the proceeding.
175 I note that the Plaintiffs do not dispute the general contention that third party documents such as these may be privileged. The issue was more as to whether the Trustees are entitled to withhold them from the beneficiaries on the grounds of privilege.
176 That the PKF analysis may relate to the administration of the Trusts is (at least in part) what makes it a Trust Document. As I have already set out, that is not determinative of whether if privileged, it is a document which the Trustees are entitled to withhold from the beneficiaries. In this instance, the evidence is that the purpose of these documents was for the Trustee Removal Proceeding. Whether or not the Trustees intend to call PKF to give evidence or to have PKF respond to any report done by the Plaintiffs is not to the point: the question is whether the communications are between PKF and the Trustees, or PKF and LHPW, for the dominant purpose of the Trustees being provided with professional legal services relating to the proceeding. I accept that this is the case. Given that the services provided by PKF appear, from the description given of them by Mr Hughes, to relate to allegations made against the Trustees in the Trustee Removal Proceeding, the documents relating to PKF in Hughes Schedule 8 fall within the Trustees' Withholding Rights, for the reasons I have already expressed.
177 For the reasons I have already set out, I reject the Plaintiffs' submission that any privilege in these documents has been waived.
178 The same general conclusions apply in respect of the SDS documents, although I accept that there is less information in the Hughes Affidavit about the purpose of these documents, and initially I thought it would be necessary for me to inspect those documents. That is not to say that I accept the Plaintiffs' submission that Mr Hughes ought to have explained how these documents relate to the Trustees' defence of the proceeding: to go further than he has is likely to require him, in itself, to reveal privileged information, which is not appropriate. During the course of reviewing other documents which I considered it necessary to inspect, the purpose of the SDS documents became more apparent to me and I am satisfied that those documents were prepared in the course of the Trustees being provided with legal advice or services and that the content of them is such that they are privileged and fall within the Trustees' Withholding Rights.
179 Accordingly, the documents in Hughes Schedule 8 may be withheld from the Plaintiffs.
180 Hughes Schedule 9 lists 12 documents which are described as costs agreements and disclosure statements from LHPW to one or more of the Trustees. They are said to be privileged on the basis of key 3.1 in the Key Descriptions Document,[100] which reads as follows:
The claim for privilege is legal advice and litigation privilege and is made in respect of narrations of work in documents prepared by legal practitioners for, and the request of, the Trustees. The documents were prepared in the period 8 June 2017 to 6 May 2020. Information disclosing the potential nature of advice to be given to the Trustees in these documents has been redacted. They have been redacted on the basis that they contain confidential communications that disclose the substance of legal advice or otherwise disclose legal work or services undertaken for the Trustees' benefit in anticipation of proceedings, or otherwise in defending proceedings, commenced against the Trustees by beneficiaries or the converse. This is because, at the time the documents were prepared, proceedings by and against the Trustees had been commenced, including in relation to a VCAT appeal.
181 Mr Hughes deposes that the documents in Hughes Schedule 9 are:[101]
(a) Three costs agreements and disclosure statements (in duplicate) issued by LHPW to the Trustees (two to Golden Fin and one to Maradval) in relation to work carried out on their behalf; and
(b) Six documents (being duplicates of two separate costs agreements) falling within this category.
182 Mr Hughes says that privilege is claimed on the basis of the advice limb in respect of two of the documents, and on the basis of both advice and litigation privilege over the remainder as at the time those documents were prepared proceedings by and against the Trustees had been commenced.[102] Mr Hughes states that he has reviewed unredacted versions of the documents and that if fully disclosed, they would reveal information regarding the terms of LHPW's agreement for the purposes of the provision of legal advice and the potential nature of advice to be given.[103]
183 Mr Hughes goes on to depose that he considers the information which has been redacted, and the documents in their entirety, are not Trust Documents as they are not necessary to understand any transactions in the Trusts. This is said to result from LHPW's standard practice of engaging an independent costs consultant to assess the professional fees charged by LHPW on all files in which the Trustees are clients of LHPW, and unredacted copies of those costs assessments have been produced to the Plaintiffs.
184 In relation to Hughes Schedule 9, the Plaintiffs rely on their submissions in respect of Hughes Schedules 2 and 3.
185 I do not accept Mr Hughes' proposition that these are not Trust Documents. This is effectively a submission and, as I have already said, the definition of Trust Documents encompasses more than financial transactions or records. In any event, I think it is unlikely that the content of a costs assessment performed after the services have been provided will contain the same content as a costs agreement and disclosure statement.
186 In my view, the description of these documents and what information Mr Hughes says would be revealed if unredacted copies were provided is such that it is necessary for me to inspect these documents. Mr Hughes' description is not sufficiently precise or sufficiently connected with a subject matter which would bring them within the Trustees' Withholding Rights for me to be satisfied as to their status without inspecting them.
187 Therefore, I have inspected the documents in Hughes Schedule 9. In my view, with the exception of the documents listed below, the documents or redacted portions thereof in Hughes Schedule 9 fall within the Trustees' Withholding Rights and do not have to be produced to ABL:
(a) Document number 22.14: the redacted section on page GC.102.001.0308 is not privileged and therefore that redaction should be removed;
(b) Document number 618: the redacted section on page GC.003.001.4993 is not privileged and therefore that redaction should be removed; and
(c) Document number 619: the redacted section on page GC.003.001.5003 is not privileged and therefore that redaction should be removed.
188 There are 203 documents in Hughes Schedule 11 which are generally described as LHPW emails, letters and documents sent to the Trustees or their agents or received from the Trustees or their agents.[104]
189 They are said to be privileged on the grounds of key 4.1 of the Key Descriptions Document,[105] which reads as follows:
The claim for privilege is legal advice and litigation privilege and is made in respect of legal advice contained in emails and letters prepared by LHPW for the Trustees or documents provided by LHPW to the Trustees for the purpose of obtaining their instructions, and in respect of confidential communications from the Trustees to LHPW providing instructions or seeking legal advice. The emails, letters and documents were prepared or received by LHPW in the period August 2016 to October 2020. These documents have been excluded in their entirety or, where appropriate, redacted to the extent that they contain confidential communications that disclose the substance of legal advice or otherwise disclose legal work or services undertaken for the Trustees' benefit in anticipation of proceedings, or otherwise in defending proceedings, commenced against the Trustees by beneficiaries or in proceedings in which the interests of beneficiaries were separately represented. This is because, to the extent that the latter category applies, at the time that the emails and letters were prepared, proceedings by or against the Trustees had been commenced, namely in proceedings S CI 2017 03211 and S CI 2017 01845.
190 24 of these documents are said to be privileged also on the grounds of category 1.4 of the Key Descriptions Document, as set out in paragraph 115 above.
191 Mr Hughes has divided the documents in Hughes Schedule 11 into sub-categories, being:
Cover letters and emails sent by LHPW to the Trustees with invoices for professional fees and/or disbursements and providing legal advice.
(a) It is said that 122 documents fall into this sub-category, and the claims are for both legal advice and litigation privilege. 6 of these documents were produced in redacted form, and the remainder were withheld in their entirety. Mr Hughes says that he has reviewed the documents and that:
(i) They are not Trust Documents as they are not necessary to understand any transactions in the Trusts;
(ii) If provided, the documents (or the redacted portions) would disclose, directly or indirectly, the substance of legal advice provided to the Trustees or any one of them and/or instructions received from the Trustees, or disclose, directly or indirectly, legal services undertaken for the Trustees' benefit in relation to their defence of this proceeding or continuation of the Golden Fin Proceeding or in relation to other litigation involving one or more of the Plaintiffs.
Draft or working copy documents or support documents relating to the Trustee Removal Proceeding or the Golden Fin Proceeding.
(b) It is said that 16 of the documents fall within this sub-category, that privilege is claimed on both limbs, and the documents have been withheld in their entirety. Mr Hughes deposes that he has reviewed the documents and if produced, they would disclose the substance of legal advice or legal services undertaken for the Trustees as they were prepared for the purposes of providing legal advice and seeking instructions from the Trustees in relation to the Trustee Removal Proceeding or the Golden Fin Proceeding.
Emails and letters of advice from LHPW to the Trustees relating to the Trustee Removal Proceeding or the Golden Fin Proceeding, or other matters in which LHPW was engaged by the Trustees to provide legal professional services.
(c) 37 documents fall within this sub-category, privilege is claimed on both limbs, and the documents have been withheld in their entirety. Mr Hughes deposes that he has reviewed the documents and if produced, they would disclose the substance of legal advice or legal services undertaken for the Trustees in relation to the Trustee Removal Proceeding or the Golden Fin Proceeding, or other matters in which LHPW was engaged by the Trustees or any one of them to provide legal professional services and advice.
Costs agreements and disclosure statements issued by LHPW to the Trustees.
(d) 11 of the documents fall within this sub-category. Mr Hughes deposes that these documents correspond with key 3.1[106] and what he said in relation to those documents applies here.
(e) One of these documents is said to correspond with key 1.4. The other 8 documents are said by Mr Hughes that, upon reflection, are not Trust Documents as they do not explain any transactions of the Trusts or form the basis of any journal entry in the records of the trusts.
192 The Trustees essentially rely on the Hughes Affidavit and their submissions as I have already described them.
193 On the second day of the hearing, Counsel for the Trustees indicated that LHPW had reviewed the covering letters/emails to invoices overnight, given the discussion on the previous day where Counsel had conceded that an email which simply said "attached is our invoice" or the like was not likely to be privileged even if parts of the invoice were. On that basis, the Trustees indicated that certain documents in Hughes Schedule 11 would be produced unredacted to the Plaintiffs.[107]
194 The Plaintiffs rely on their earlier submissions (including as to waiver) and say, in particular, that:
(a) Insofar as the documents are cover letters enclosing invoices, they repeat their submissions in respect of key 1.4; and
(b) The subject matter or topic of the advice has not been sufficiently identified, so that it is impossible for them to comment on the appropriateness of the claims made.
195 For the same reasons as previously expressed, I do not accept the Plaintiffs' submissions as to waiver in respect of these documents. However, their complaint as to imprecision of some of the sub-categories is valid.
196 Using the same numbering as to the sub-categories described in paragraph 191 above so that my responses correspond with those sub-paragraphs, my conclusions in respect of them are as follows:
(a) I do not accept Mr Hughes' proposition that the 122 documents in this sub‑category are not Trust Documents, for the reasons I have already expressed. I am satisfied from Mr Hughes' evidence that the documents are privileged. I am also satisfied that they fall within the Trustees' Withholding Rights, for the reasons already expressed. They either concern the Trustee Removal Proceeding or the Golden Fin Proceeding, or other litigation involving the Plaintiffs. In respect of the latter, I have already stated that this is sufficient for the documents to be able to be withheld. I do not consider it necessary to inspect these documents.
(b) I am satisfied from Mr Hughes' description of the 16 documents in this sub‑category that they are privileged and that they fall within the Trustees' Withholding Rights. These documents are confined to the Trustee Removal Proceeding or the Golden Fin Proceeding, and as I have already stated, the Trustees are entitled to withhold these privileged documents from their adversaries in the litigation, even though they are beneficiaries of the trusts. I do not consider it necessary for me to inspect these documents.
(c) I am satisfied from Mr Hughes' evidence that the 37 documents in this sub‑category are privileged. Insofar as the documents relate to the Trustee Removal Proceeding or the Golden Fin Proceeding, I am satisfied that they fall within the Trustees' Withholding Rights, for the reasons I have already expressed. However, the imprecision of the description of the remaining documents, being "other matters in which LHPW was engaged by the Trustees (or any one of them) to provide legal professional services and advice" means that I cannot be satisfied of this without inspecting the documents. Therefore, I have inspected the documents in this sub-category. Unhelpfully, as they are not divided up in this section of Hughes Schedule 11, this has necessitated me inspecting all 37 documents. In my view, all of them fall within the Trustees' Withholding Rights and therefore do not have to be produced.
(d) In relation to these 11 documents, I repeat the comments I made in paragraph 186 above, as the same applies. I have therefore inspected these documents. In my view, all of them fall within the Trustees' Withholding Rights and therefore do not have to be produced.
(e) I do not accept Mr Hughes' proposition that the documents in this sub-category are not Trust Documents. The description of these documents is so general and imprecise that I have had to inspect all of them. In my view:
(i) Document numbers 836, 839, 1139 and 1155 are privileged and fall within the Trustees' Withholding Rights, and so do not have to be produced;
(ii) Document numbers 437, 443 and 444 are communications between LHPW and ABL and are not privileged as between the Plaintiffs and the Trustees, and so have to be produced; and
(iii) Document numbers 1142, 1143 and 1144 are correspondence between LHPW and Kyriacou and are not privileged, and so have to be produced.
197 Hughes Schedule 14 contains some 185 documents[108] which are described as correspondence and documents prepared by, or received by, the Trustees, Ms Culvenor, Morans, Mr Freeman and LHPW. They are said to be privileged on the grounds of key 6 on the Key Descriptions Document,[109] which reads as follows:
The claim for privilege is litigation privilege and is made in respect of correspondence and documents prepared by, or received by, the Trustees, Grace Culvenor, the current bookkeeper for the Valmorbida Group, Moran Accountants, David Freeman of Applebay Pty Ltd and LHPW (or any of them) in the period August 2016 to October 2020. These documents have been excluded in their entirety or, where appropriate, redacted to the extent that they disclose confidential communications prepared for the dominant purpose of the Trustees receiving legal services in defending proceedings commenced against the Trustees by beneficiaries or in prosecuting proceedings commenced by the Trustees against beneficiaries. This is because at the time that the correspondence and documents were prepared, proceedings by or against the Trustees had been commenced [the Trustee Removal Proceeding, the Golden Fin Proceeding and the Maradval v Admarval Proceeding] including in relation to VCAT matter.
198 Mr Hughes deposes that the claim for privilege in respect of these documents is pursuant to the litigation limb, that 131 documents were withheld in their entirety and 54 documents have been produced in redacted form.[110]
199 Mr Hughes says that broadly speaking the documents are emails and documents prepared by the Trustees, or by Ms Culvenor, Mr Freeman or Morans, in their capacity as agents of the Trustees, relating to information sought by LHPW or Counsel to enable legal services to be provided to the Trustees in relation to the Trustee Removal Proceeding, the Golden Fin Proceeding and the VCAT proceeding. He says that producing the documents (or the unredacted portions of them) would reveal confidential communications prepared for the dominant purpose of the Trustees receiving legal services in respect of those proceedings.[111]
200 The Trustees submit that these documents are privileged under s 119 of the Evidence Act and they rely on their general submissions. The Plaintiffs relied on their general submissions.
201 Based on Mr Hughes' evidence, I accept that these documents are privileged. They clearly fall, from their description, within s 119 of the Evidence Act. I do not, for the reasons already expressed, accept the Plaintiffs' submissions as to waiver.
202 Insofar as the documents concern the Trustee Removal Proceeding or the Golden Fin Proceeding, they fall within the Trustees' Withholding Rights for the same reasons I have already expressed and may be withheld from production.
203 The difficulty arises in respect of what is described as the 'VCAT proceeding'. I have not been able to locate anything in the Hughes Affidavit, or in the Trustees' Outline for that matter, which describes what this proceeding was about or who were the parties to it. It is therefore impossible for me to determine whether such documents fall within the Trustees' Withholding Rights.
204 I do not consider it a sensible use of the Court's time for me to trawl through some 185 documents to try to identify which documents relate to the VCAT proceeding and then assess whether those documents fall within the Trustees' Withholding Rights or not. In any event, reviewing the documents on the current state of the evidence may not necessarily equip me to form a view as to whether they are able to be withheld or not. Therefore, before making a ruling in respect of documents relating to the VCAT proceeding listed in Hughes Schedule 14, if the parties do not reach a consent position on those after taking these reasons into account, then I will require an affidavit on behalf of the Trustees providing evidence of what the VCAT proceeding is about and who the parties to it are and identifying which documents in Hughes Schedule 14 concern that proceeding. I will also require a brief written outline of submissions on behalf of the Trustees regarding this issue, of no more than 3 pages. The Plaintiffs will have an opportunity to provide any affidavit and/or submissions in response, similarly limited in length.
Schedules concerning documents withheld on the basis of privilege claims which may be available to persons other than the Trustees
205 The Trustees have withheld from production documents which, upon review by LHPW, are considered likely to be the subject of privilege claims by others. These other persons are Mariano, Valch Pty Ltd ('Valch'), and VCPL ('Third Party Privilege Claimants').
206 Quite properly, the Trustees took this course so as to avoid the inadvertent disclosure or waiver of privileged communications. In effect, the Trustees treated these as Other Withheld Documents.
207 The categories of documents in this regard are as follows:
(a) Key 1.3 - legal invoices issued by KCL Law to VCPL - corresponding to Hughes Schedule 1;
(b) Key 1.5 - legal invoices issued by LHPW to Mariano personally - corresponding to Hughes Schedule 4;
(c) Key 1.9 - legal invoices issued by John Wolf to Mariano personally or to Valch - corresponding to Hughes Schedule 7;
(d) Key 3.2 - costs agreements and disclosure statements issued by LHPW to Mariano personally - corresponding to Hughes Schedule 10;
(e) Key 4.2 - LHPW letters, emails and documents sent to Mariano personally - corresponding to Hughes Schedule 12;
(f) Key 8 - cover letters and emails from KCL Law - corresponding to Hughes Schedule 15; and
(g) Key 9 - documents and correspondence in relation to Mariano's personal affairs - corresponding to Hughes Schedule 16.
208 As the Trustees rightly recognise, having identified that the documents may be the subject of privilege claims by third parties, it is up to those parties to seek to maintain such a claim. To that end, LHPW wrote to each of the Third Party Privilege Claimants or their solicitors to find out whether they wished to claim privilege and their views as to the Trustees producing the documents to the Plaintiffs as part of them complying with the Trust Records Orders.[112] In some instances further correspondence ensued, in which LHPW noted that the onus of establishing that any of the disputed documents are privileged and should be withheld (or produced with redactions) rests on the person claiming the privilege.[113] The Third Party Privilege Claimants were therefore on notice that the onus was on them to make good any privilege claims. Other than the correspondence which LHPW received in response and has been included in the Hughes Affidavit and exhibits, there is no direct evidence from any of the Third Party Privilege Claimants or their solicitors dealing with this. None have gone on affidavit, for example. Therefore, when dealing with each of the relevant Hughes Schedules in respect of the Third Party Privilege Claimants, whether there is sufficient evidence to make out the privilege claim will be a particularly important issue.
209 The responses from the Third Party Privilege Claimants are summarised as follows:
(a) VCPL has indicated that it is content for the documents concerning it to be disclosed, being the documents in keys 1.3 and 8.[114]
(b) Mariano and Valch say that the documents in keys 1.5, 1.9, 3.2, 4.2 and 9 are not relevant to any issue in dispute in the proceeding and, save for two documents, are privileged and immune from production.[115]
210 The Trustees say they will produce the documents in Hughes Schedules 1 and 15 if ordered to do so.
211 In respect of the Hughes Schedules relating to the Third Party Privilege Claimants, the Trustees submit that the Plaintiffs are not entitled to production of the documents in those schedules because they are not Trust Documents (as they do not explain any transactions of the trusts or form the basis of any journal entry in the records of the trusts) and, in any event, are subject to claims of privilege by Mariano and/or Valch.
212 The Plaintiffs submit that as the documents in the Hughes Schedules relating to the Third Party Privilege Claimants are in the hands of the Trustees' solicitors, being LHPW, self-evidently they have been disclosed as Trust Documents. I take it that the Plaintiffs are saying that because they have been identified as part of this exercise, they are to be taken as being Trust Documents.
213 But such a submission ignores the manner in which LHPW created the corpus of documents to be produced pursuant to the Trust Records Orders. Mr Hughes deposes that documents were sought and obtained from Morans, Ms Culvenor, Mr De Silva, Mr Freeman, Luisa, Irving, Mariano and Kyriacou.[116] There is no evidence before me as to what instructions were given to those persons to identify which documents they should provide. It is therefore possible that these persons provided documents which were not Trust Documents. Therefore, I do not accept the proposition that just because the Trustees' solicitors have the documents they must be Trust Documents.
214 However, there is evidence as to what steps LHPW took upon receipt of documents from these various sources. Amongst other things, the documents were reviewed by LHPW and (at times) Counsel to determine whether they fell outside the Trust Records Orders, ie whether they were Out of Scope Documents, as well as whether they were Excluded Documents or Other Withheld Documents.[117]
215 It is clear from the Hughes Affidavit that for the documents to have been included in the 22 December List, they fell within the classifications of Excluded Documents or Other Withheld Documents. The documents identified as Out of Scope Documents were not included in the 22 December List.[118] As I apprehend it, only documents which had been identified as Trust Documents were included on that list.
216 This issue as to whether the documents the subject of the third party privilege claims are Trust Documents arises because Mr Hughes has deposed that upon reflection, he considers that some of them are not Trust Documents and that Mariano's solicitors have also asserted that they are not Trust Documents,[119] and the Trustees now submit this as well. I will deal with this further when discussing the below schedules.
217 The Plaintiffs' submission also ignores that pursuant to the Trust Records Orders, the Trustees were entitled to withhold from production the Excluded Documents and Other Withheld Documents. Even if the documents the subject of third party privilege claims are Trust Documents, they are still able to be withheld by the Trustees if they fall within those definitions.
218 This all results in a situation where the evidence is not compelling as to whether these documents are, or are not, Trust Documents. The response from Mariano's solicitors ('HWLE') dated 20 April 2021[120] does not (contrary to the Hughes Affidavit) contend that the documents are not Trust Documents: rather, it contends that the documents are not relevant to issues in the proceeding. As the Plaintiffs rightly point out, that is not the touchstone for determining whether the documents are Trust Documents.
219 Generally speaking, it has therefore been necessary for me to inspect the documents in the relevant Hughes Schedules where they are said to have been excluded on account of Mariano or Valch's privilege claims.
220 Hughes Schedule 1 contains 24 documents which are described as legal invoices issued by KCL Law. KCL Law has been the firm of solicitors acting for VCPL since around August 2017 and act for VCPL in defending the Trustee Removal Proceeding. KCL Law works in conjunction with Nathan Kuperholz, solicitor, and some of the invoices involve him.[121] The narrations in the invoices have been redacted by LHPW.
221 The documents in Hughes Schedule 1 were classified as privileged by LHPW on the basis of key 1.3 on the Key Descriptions Document, which is a claim under the advice and litigation limbs, redacted so as to not disclose confidential communications that disclose the substance of legal advice or services for VCPL in defending the Trustee Removal Proceeding. Mr Hughes attests to this, having reviewed the unredacted documents.[122]
222 There are 12 documents in Hughes Schedule 15 which are described as cover letters and emails from KCL Law. These were classified as privileged by LHPW on the grounds of key 8 in the Key Descriptions Document.[123] Key 8 is a claim for privilege under the advice and litigation limbs over emails and letters prepared by KCL Law for the benefit of VCPL between approximately August 2017 to October 2019 and the documents were redacted so as not to disclose the substance of legal advice or services provided.
223 Mr Hughes does not say that he now considers that these documents are not Trust Documents. Therefore, I do not see why I should review them to ascertain whether they are, despite the Trustees' submissions. I will proceed on the basis that they are Trust Documents.
224 In response to LHPW's enquiries, KCL Law responded that they did not consider that the redacted portions of the invoices referred to privileged communications or advice in sufficient detail to warrant them taking any action to maintain a privilege claim, and therefore they did not object to the Trustees producing them if required to do so.[124]
225 In circumstances where the potential privilege holder does not wish to take action to maintain a claim for privilege and where there is no evidence that these are not Trust Documents, I see no reason why the copies of unredacted versions of the documents in Hughes Schedules 1 and 15 should not be released.
226 Hughes Schedule 4 contains 17 documents which are described as legal invoices issued by LHPW to Mariano personally in his personal capacity, being 11 invoices plus duplicates. They were classified as privileged on the basis of key 1.5 in the Key Descriptions Document.[125] Key 1.5 reads as follows:
The claim for privilege is legal advice privilege and litigation privilege and is made in respect of narrations of work in invoices prepared by legal representatives of Mariano Valmorbida in his personal capacity. The claim for privilege is made on Mariano Valmorbida's behalf. The narrations in these documents have been redacted. They have been redacted on the basis that they contain confidential communications that disclose the substance of legal advice or otherwise disclose legal work and services undertaken for Mariano Valmorbida's benefit.
227 Mr Hughes deposes that these invoices relate to four separate matters, unrelated to the Trustee Removal Proceeding, where LHPW was retained by Mariano in his personal capacity, as follows:[126]
(a) For the period June 2017 to 25 October 2019 to provide professional legal advice and services relating to the will and estate of Adrian. This was the subject of proceeding No S PRB 2016 16310 between Kairu Chan as executrix of Adrian's will and estate where LHPW represented Mariano and ABL represented Ms Chan ('Rectification Proceeding');
(b) For the period September 2016 to 13 September 2017 to provide professional legal advice and services in relation to rental arrears owed to Mariano by the tenant of property owned by him at 48-50 Edwardes Street, Reservoir ('Reservoir Tenancy Arrears');
(c) From 22 December 2016 to provide professional legal advice and services as required in relation to Adrian's Estate ('Estate Matters'); and
(d) For the period October 2019 to 30 January 2020 to provide professional legal advice and services in relation to an appeal from a costs decision of 14 September 2019 in the Rectification Proceeding, which was the subject of proceeding No S APCI 2019 0097 in which ABL acted for Ms Chan as respondent and LHPW for Mariano as applicant ('Costs Appeal').
228 Mr Hughes does not say that he now considers that these documents are not Trust Documents.
229 Further, in response to LHPW's enquiries, HWLE stated that the documents relating to the Rectification Proceeding and the Costs Appeal were irrelevant to the Trustee Removal Proceeding as the facts they went to were common cause in light of the admissions made in that proceeding and they ought not to have been produced for inspection by the Plaintiffs. The common cause referred to in the HWLE letter relates to the allegations in the proceeding that LHPW's invoices in respect of the Rectification Proceeding and the Costs Appeal were paid by Golden Fin as trustee for the Ferval Trust, which allegation is admitted by Mariano and by the Trustees, who also say that these payments ought to have been debited to Mariano's loan account.[127]
230 HWLE stated that the documents relating to the Estate Matters and the Reservoir Tenancy Arrears were irrelevant to the Trustee Removal Proceeding as the facts they went to were common cause and they ought not to have been produced for inspection by the Plaintiffs.[128] The common cause is not identified in that letter. In oral submissions, the Plaintiffs' Counsel submitted that it is clear when inspecting the redacted versions of these documents that four of the invoices were paid by Golden Fin and that it is not clear on the face of the fifth one whether it was paid by Golden Fin.[129] Further, Counsel submitted that Mariano does not say whether this was in error or whether they will be repaid or treated as part of his loan account.[130]
231 I have inspected the invoices and I accept the submissions of the Plaintiffs' Counsel that it is clear from the face of the documents that four of the invoices were paid by Golden Fin. I also think it likely, given the content, that the fifth of these was as well.
232 As already noted, HWLE stated, in respect of a number of the categories, that the documents are not relevant to the proceedings and so should not be produced. It was common ground between the Plaintiffs and Trustees that relevance in respect of the proceedings is not relevant to this exercise, as this is governed by the principles regarding production of trust documents to beneficiaries, not discovery in a legal proceeding.
233 The Trustees appear to submit that these documents are not Trust Documents.[131] However, I do not accept these submissions. Rather, I accept the Plaintiffs' submissions that where the invoices were paid by Golden Fin, these relate to transactions of the Trust whether they are subsequently repaid or not, such that they are Trust Documents.[132]
234 In their response to LHPW, HWLE went on to state that in any event, the majority of the documents were not privileged as they do not disclose the substance of conversations and advice given but merely record the fact that a particular meeting had taken place or that particular work has or will be done.[133]
235 I am therefore satisfied that the documents in Hughes Schedule 4 are Trust Documents and, in circumstances where Mariano is not pressing a privilege claim in respect of them, unredacted copies should be produced to ABL.
236 Hughes Schedule 10 contains 4 documents described as costs agreements and disclosure statements issued by LHPW to Mariano personally. They have been redacted by LHPW, and the redactions classified as privileged on the basis of key 3.2 in the Key Descriptions Document,[134] which reads as follows:
The claim for privilege is legal advice privilege and is made in respect of narrations of work in documents prepared by legal practitioners for, and the request of, Mariano Valmorbida in his personal capacity. The documents were prepared on 8 June 2017. The claim for privilege is made on Mariano Valmorbida's behalf. Information disclosing the potential nature of advice to be given to Mariano Valmorbida in these documents has been redacted. They have been redacted on the basis that they contain confidential communications that disclose the substance of legal advice or otherwise disclose legal work or services undertaken for Mariano Valmorbida's benefit.
237 Mr Hughes deposes that three of the documents are duplicates of a costs agreement and disclosure statement issued by LHPW to Mariano in relation to the Rectification Proceeding, and the other document is a costs agreement and disclosure statement issued by LHPW to Mariano in relation to the Estate Matters.[135]
238 Mr Hughes also deposes that upon reviewing the documents in preparing his affidavit, he now considers that these are not Trust Documents and should be excluded from production in their entirety.[136]
239 In response to LHPW's enquiries, HWLE repeated their comments regarding the document concerning the Rectification Proceeding and stated that the other documents do not relate to an issue in the Trustee Removal Proceeding and are therefore irrelevant, such that none of them should have been produced to the Plaintiffs.[137] HWLE did not make any statement as to privilege in respect of these documents.
240 The Plaintiffs relied on their earlier submissions regarding Hughes Schedule 4 in relation to these documents.
241 In my view, these documents are to be treated in the same way as those in Hughes Schedule 4. The costs agreements and disclosure statements relate to invoices paid for, or likely to have been paid for, by Golden Fin.[138] The fact that the services were to be provided to Mariano personally does not therefore mean that they are not Trust Documents. Since no claim for privilege is pressed by Mariano, and they are Trust Documents, unredacted versions of these documents should be produced to ABL. I have not considered it necessary to inspect the documents.
242 Hughes Schedule 12 contains 20 documents described as LHPW letters, emails and documents sent to Mariano Valmorbida personally. These are said to be privileged on the grounds of key 4.2 in the Key Descriptions Document,[139] which reads as follows:
The claim for privilege is legal advice and litigation privilege and is made in respect of legal advice contained in emails, letters and documents prepared by LHPW for Mariano Valmorbida in his personal capacity. The emails, letters and documents were prepared in the period August 2016 to October 2019. The claim for privilege is made on Mariano Valmorbida's behalf. These documents have been excluded in their entirety or, where appropriate, redacted to the extent that they contain confidential communications that disclose the substance of legal advice or otherwise disclose legal work or services undertaken for Mariano Valmorbida's benefit.
243 Mr Hughes deposes that 8 of the documents overlap with other reasons for exclusions, being key 1.5 and/or Reason E. The documents are said to relate to the Rectification Proceeding, the Costs Appeal, general advice, the Reservoir Tenancy Arrears, and the Bendigo Bank facilities. He also deposes that upon reviewing the documents in Schedule 12, he now considers that they are not Trust Documents.[140]
244 I do not accept this submission: they are to be treated as Trust Documents for the same reasons as expressed above in respect of Hughes Schedule 4.
245 In response to LHPW's enquiries, HWLE repeated their comments regarding documents concerning the Rectification Proceeding and the Costs Appeal, and stated that the other documents do not relate to an issue in the Trustee Removal Proceeding and are therefore irrelevant, such that none of them should have been produced to the Plaintiffs. It was also said that one of the documents was a public document.[141] HWLE did not make any statement as to privilege in respect of these documents.
246 In respect of Hughes Schedule 12, the same conclusion, for the same reasons, as reached for Hughes Schedule 10 applies.[142] Accordingly, the documents in Hughes Schedule 12 are to be produced to the Plaintiffs, save for those listed as also excluded on account of Reason E, which may be withheld. For the same reasons, I do not consider it necessary for me to inspect these documents.
247 Hughes Schedule 16 contains 18 documents described as documents and correspondence relating to Mariano's personal affairs, classified as privileged by reason of key 9 in the Key Descriptions Document,[143] which reads as follows:
The claim for privilege is legal advice privilege. The claim for privilege is made on Mariano Valmorbida's behalf. These documents have been excluded in their entirety or, where appropriate, redacted to the extent that they contain confidential communications that disclose the substance of legal advice or otherwise disclose legal work or services undertaken for Mariano Valmorbida's benefit.
248 Mr Hughes deposes that some of these documents were also marked with other reasons for exclusion. Eight of the documents were withheld in their entirety and the others were redacted. He says that based on his review of them, if they were produced in full they would disclose, directly or indirectly, legal work and services undertaken for Mariano's benefit.[144]
249 In response to LHPW's enquiries, HWLE stated that the documents are not relevant to any issue in the Trustee Removal Proceeding and ought not to have been produced for the Plaintiffs' inspection. HWLE also states that all bar two of the documents[145] are privileged.
250 Mr Hughes does not appear to say that he considers these not to be Trust Documents.
251 The Plaintiffs accepted that it was a matter for the Court in reading the Hughes Affidavit and the HWLE correspondence as to whether or not privilege is sufficiently established.[146] They say, however, that by and large it is not.
252 I am prepared to accept that the combination of the Hughes Affidavit and HWLE's response is sufficient to raise a prima facie case that 16 of the 18 documents may be privileged. I have therefore considered it necessary and appropriate to inspect the documents in this schedule in relation to which Mariano presses his privilege claim. Having done so, I am satisfied that the documents, or the redacted portions of them, are privileged and are not required to be produced.
253 Hughes Schedule 7 contains 3 documents described as invoices issued by John Wolf, solicitor, relating to Mariano personally or to Valch and accompanying cover letters and one other document. They were classified as privileged on the basis of key 1.9 of the Key Descriptions Document,[147] which in summary is based on the advice limb for advice provided to Mariano or to Valch and if unredacted would reveal privileged communications.
254 Valch is the trustee for the AV Children's Trust which was established to benefit Adrian's children.[148]
255 I do not consider it necessary to give any consideration to this schedule, as Mr Hughes deposes that upon further review of the unredacted versions of these 4 documents, he considers that the privilege claim over the redacted portions was not necessary.[149] The response from HWLE does not state that the documents are privileged. The response from HWLE does state that the documents are not relevant and ought not have been produced: they are said to be irrelevant to any issue in the proceeding as it is common cause in the proceeding that the AV Children's Trust was established and that the costs of doing so were paid by Maradval and debited to the loan account in the name of the AV Children's Trust.[150] The HWLE response does not state that the documents are not Trust Documents, contrary to what Mr Hughes says in his affidavit.[151]
256 It therefore appears that these are Trust Documents for the same reasons as expressed above (principally, one of the Trustees paying the invoices). This, along with neither Mariano nor Valch pressing a privilege claim, together with Mr Hughes' concession, means that unredacted copies of the documents in Hughes Schedule 7 should be produced to ABL. I have not considered it necessary to inspect these documents.
Schedules concerning documents withheld on the basis of them recording or evidencing the reasons of a Trustee for exercising a discretionary power (Reason C)
257 Consistent with the Trust Records Orders, the Trustees have withheld documents which are Excluded Documents on account of Reason C, which corresponds with paragraph C of the definition of Excluded Documents. These are documents which record or evidence the reasons of any one or more of the Trustees for exercising a discretionary power, other than minutes of meetings of the Trustees.
258 Originally, there were 18 documents excluded due to Reason C on the 22 December List, however 3 of these were produced in unredacted format to ABL on 11 December 2020.[152] All 18 documents are listed on Hughes Schedule 17, the only schedule corresponding to Reason C.
259 Four of the documents were withheld in full. These were all described in the list provided by LHPW to the Plaintiffs on 27 November 2020 as emails from one or more of Luisa, Mariano, Irving and Mr Freeman to another of them, "evidencing reason of Trustee for exercising a discretionary power, containing private information of a third party and containing legally privileged information".[153] They are said to be forming part of the same email chain relating to the signing of 2020 distribution resolutions for the trusts and reasons of the Trustees for reaching the decisions contained in the resolutions. Mr Hughes confirms that if produced, they would disclose the Trustees' reasons for exercising their discretionary power in relation to distribution of trust income.[154]
260 Mr Hughes deposes that redactions were applied to the remaining 11 documents. However, by letter dated 11 December 2020, LHPW informed ABL that the Trustees did not maintain the redactions over 8 of these 11 documents insofar as the redactions relate to Reason C and provided updated redacted versions of the documents in which redactions for Reason E were maintained.[155] The remaining 3 documents are duplicates of these documents and Mr Hughes says that re-redacted versions can be provided, even though ABL already has them.[156]
261 The oral submissions made by the Plaintiffs' Counsel did not appear to take into account the revised redactions. Further, the submissions made were difficult to follow as they relied heavily on reading from some of the documents which at that point I had not seen. Therefore, it is necessary for me to inspect the documents in Hughes Schedule 17 which the Plaintiffs' Counsel referred to.[157]
262 Upon review of those documents, I am satisfied that the are not required to be produced.
263 Accordingly, the Trustees are not required to produce any of the documents or redacted portions of documents listed in Hughes Schedule 17.
Schedules concerning documents withheld on the basis of confidentiality
264 Hughes Schedule 18 contains 13 documents were excluded on the grounds of Reason D, being documents which record or evidence information provided to the Trustees or any one of them, in confidence by a beneficiary where such document contains confidential information. They have also been excluded for other reasons, as marked.[158]
265 Mr Hughes says that redactions have been applied to these documents. He says that 9 of them are emails forming part of one email chain and the other documents are emails forming part of another email chain between the Trustees, Mariano, Grace and David relating to advancement of monies to Empaval Pty Ltd as trustee for the Mariano Valmorbida Family Trust ('Empaval') of which Mariano is the sole director. Mr Hughes deposes that he has reviewed the unredacted documents and if produced in full, insofar as the redactions relate to Reason D they would disclose personally sensitive information of third parties including Mariano and Empaval, such as information regarding personal income tax liabilities and living expenses and expenditure, which information was provided to the Trustees on a confidential basis to assist them in the exercise by the Trustees of a discretion regarding the advancement of funds by way of loans.[159]
266 The Trustees rely on their general submissions regarding confidentiality, summarised above, and say that the Court should refuse the Plaintiffs access to unredacted versions of the documents in Hughes Schedule 18.
267 The Plaintiffs also rely on their general submissions regarding confidentiality. In respect of Hughes Schedule 18, they made similar submissions, in a similar way, to those made in respect of Hughes Schedule 17. For the same reason, I consider it necessary for me to inspect the documents,[160] as referred to by the Plaintiffs' Counsel.[161]
268 Upon review of those documents, I am satisfied that they are not required to be produced by the Trustees, either because they overlap with documents redacted for privilege or because they contain confidential information.
269 Accordingly, the Trustees are not required to produce the documents, or redacted portions thereof, listed in Hughes Schedule 18.
270 Hughes Schedule 19 contains 326 documents which were excluded on the grounds of Reason E, being documents containing confidential information of other parties or provided by other parties on a confidential basis.[162] In other words, these fall within the Other Withheld Documents.
271 Mr Hughes has divided the documents in Hughes Schedule 19 into a number of sub-categories.
Financial documents and reports of other entities - Sirena Group and Italian Media Group
272 The first of these sub-categories are financial documents and reports of other entities. These other entities are:[163]
(a) The Sirena Group and the Sirena Group Trusts; and
(b) Basmec Holdings Pty Ltd, Bedworth Pty Limited as trustee for the Il Globo Unit Trust and Gumnut Nominees Pty Ltd as trustee for Gumnut Unit Trust (collectively, 'Italian Media Group').
273 Mr Hughes deposes that Vinrose in its capacity as trustee of the Keck Trust holds units in the Sirena Group Trusts, shares in Basmec Holdings Pty Ltd and units in the Il Globo Unit Trust and Gumnut Unit Trust. Each year, Vinrose receives distributions from the Sirena Group Trusts, which comprise a substantial part of the income of the Keck Trust. Vinrose also receives dividends and distributions from entities in the Italian Media Group.[164]
274 Mr Hughes also deposes that each year, Morans, as the Trustees' accountants, receive copy financial statements and on most occasions the associated tax return for the Sirena Group Trusts and the Italian Media Group after the end of the financial year by the accountants for those groups. He says that these documents are provided to Morans on a confidential basis and are treated by Morans on the basis that they will remain confidential. Morans uses the documents as necessary in preparing the financial statements and tax returns for the Trusts.[165]
275 Mr Hughes then goes into some detail as to the enquiries he has made of Luisa, who is a director of both entities in the Sirena Group, as to the confidentiality of the Sirena Group documents and whether inspection by the Plaintiffs is resisted. In brief summary:[166]
(a) The Sirena Group accounts are commercially sensitive, as they include details of operating revenues and expenses of private entities in competitive industries;
(b) The Sirena Group accounts could be used to prejudice or disadvantage the competitive or commercial interests of those entities. In particular, there are other investors in Sirena and Iconic that hold interests in other unconnected entities that also operate in the food distribution industry and in connection with the Sirena Group. Other investors are therefore provided with limited and restricted financial information by Sirena and Iconic; and
(c) The other directors of the Sirena Group have told Luisa that inspection of the documents by the Plaintiffs would be strenuously opposed.
276 Mr Rizio states that the Sirena Group objects to the disclosure of these documents beyond what has already been made available by the Trustees to the Plaintiffs.[167]
277 Mr Hughes also deposes that Mr Rizio, accountant at Banks Group (the accountants for the Sirena Group entities),[168] and Vivek Agarwal, accountant at Morans, have informed him that the Sirena Group accounts are provided to Morans as accountants for Vinrose on the basis that they will maintain confidentiality in the documents and only use them for the limited purpose of preparing the financial statements of the Keck Trust. Mr Rizio gives direct evidence to the same effect.[169] Mr Hughes also says that Mr Rizio and Mr Agarwal have informed him that only the accounting distributable profit (or loss), the taxation distributable profit (or loss) and any relevant unitholder entitlement balances is used or disclosed by Morans and that all other information is to be kept confidential.[170]
278 Mr Rizio also gives evidence of the "highly sensitive and confidential" nature of the information which is provided to Morans regarding the Sirena Group.[171] I do not need to detail this here, but suffice to say that I am satisfied by Mr Rizio's explanation, and am satisfied that the information is confidential.
279 In relation to the Italian Media Group, Mr Hughes deposes that Luisa and Mr Rizio have informed him that:[172]
(a) There are other third party investors in the Italian Media Group and Vinrose as trustee for the Keck Trust, and the investors agree to retain confidentiality over the financial statements prepared;
(b) The financial statements of the Italian Media Group are provided to Morans as accountants for Vinrose on the basis they will maintain confidentiality in the documents and only use them for the purpose of preparing the financial statements of the Keck Trust;
(c) Similar restrictions to those set out above regarding the Sirena Group as to what information from the Italian Media Group financial statements can be used and disclosed by Morans apply.
280 Mr Hughes says that the Trustees consider that the beneficiaries should not be provided with unredacted copies of the Sirena Group and Italian Media Group documents as they were provided on a confidential basis, they contain confidential information, and the Trustees want to continue to receive the financial statements, which may be jeopardised if the Trustees do not respect confidentiality.[173] Luisa has told him that the information could be used to prejudice or disadvantage the commercial or competitive interests of the Sirena Group and/or the Italian Media Group, which could in turn have a negative effect on the financial position of the Keck Trust.
281 Further, Mr Hughes says that the Trustees take the view that the financial statements of the Trusts already contain salient information about the Sirena Group and Italian Media Group investment and income which is made available to the beneficiaries.[174]
282 In addition to the general submissions regarding confidentiality, the Trustees make submissions based on the above evidence and they also submit that the Italian Media Group and Sirena Group financial documents are not Trust Documents as they are not necessary to understand transactions of the trusts, primarily because of the matters referred to in paragraph 281 above.
283 The Plaintiffs submit that the Sirena Group and Italian Media Group documents are Trust Documents as they evidence the way in which the trust assets are invested.
284 The Plaintiffs submit that insofar as confidentiality is claimed over the Iconic documents, clause 16.2 of the Iconic Trust Deed provides that the financial statements and books of account in relation to the Iconic Food Distribution Trust shall be open to the inspection of the unit holders.[175] The Plaintiffs submit that there is no basis for Iconic to unilaterally impose confidentiality requirements as between it and unit holders including Vinrose. The Trustees submit that the Iconic trust deed does not say anything about confidentiality one way or the other, and does not seem to prevent it.
285 I do not accept the Plaintiffs' submission in this regard, as it is not to the point. There is nothing to prevent Iconic from providing documents on a confidential basis and it is tolerably clear on the evidence that this is what it, and Sirena, have done.
286 I accept the evidence that the Sirena Group and Italian Media Group documents were provided on a confidential basis and that the redacted portions would reveal confidential information. As set out in paragraphs 109 to 112 above, I accept the Trustees' submissions in respect of a trustee's right to withhold documents provided to it confidentially from beneficiaries. Accordingly, the documents in Hughes Schedule 19 do not have to be produced in unredacted form to ABL. I do not consider it necessary for me to inspect these documents.
287 If pressed and if it were necessary for me to decide the question, I would not accept the Plaintiff's submission that the Sirena Group and Italian Media Group documents are Trust Documents, as such documents are outside the scope of Trust Documents as they are not necessary for an understanding of the transactions of the Trusts.
288 The Plaintiffs submitted that the concerns expressed by Mr Hughes and Rizio as to the prejudice to the Sirena Group and the Italian Media Group should the documents be produced are unfounded. Ms Ford deposes that none of the Plaintiffs have any commercial interests in the food distribution industry in the same field as, or in competition with, them, and that the Plaintiffs do not intend to share any obtained documents with other beneficiaries of the Trusts.[176] Further, the Plaintiffs are prepared to enter into confidentiality undertakings in relation to any commercially sensitive documents, and during the course of the hearing the Plaintiffs' Counsel circulated a revised form of undertaking. The Trustees reject the proposition that the offer of a confidentiality undertaking means that production of the documents should occur, but say that they will address that question if production of those documents is ultimately ordered. Rather, they submit that the consequence of a finding that the Trustees may properly withhold documents from the Plaintiffs by reason of their confidential nature is that the Plaintiffs have no right to inspect the documents or redacted parts at all. They say that the outcome in Hartigan Nominees and Deutsch v Trumble was that the trustees could withhold the documents in their entirety and the beneficiaries had no right or entitlement to access, even in a limited or regulated way.
289 In the circumstances of this case, where the production of documents has been ordered to beneficiaries by Trustees in the exercise of the Court's discretion within its supervisory jurisdiction, I do not consider measures such as confidentiality undertakings typically utilised in respect of commercially sensitive documents in commercial litigation to be apposite. In the latter circumstance, documents are required to be produced due to their relevance to matters in the subject litigation and are part of the coercive powers of the Court in that context. In the instance before me, the question is what documents beneficiaries are entitled to, and the withholding of documents on the grounds of confidentiality was provided for in Paragraph Two of the Trust Records Orders. As set out above, I am persuaded by the Trustees' submissions that Other Withheld Documents includes documents of third parties containing confidential information which has been provided confidentially, and that the Trustees not only have obligations to observe such confidentiality but a right or interest in doing so for the benefit of the Trusts. Accordingly, the offer of a confidentiality undertaking by the Plaintiffs does not persuade me that the documents should be produced.
Documents disclosing bank account details or financial information of other third party corporate entities
290 This sub-category is described as emails, letters and documents disclosing bank account details or financial information of other third party corporate entities including Vivik Pty Ltd as trustee for Valmorbida Unit Trust No. 11 ('Vivik'), Adjoval, October Flower Pty Ltd ('October Flower') and Voyager CD Pty Ltd ('Voyager'). These are all said by Mr Hughes to be entities currently or previously related to the wider Valmorbida family enterprise.[177]
291 Mr Hughes says that Ms Chan is a current director of Adjoval (noting that Adjoval is the Fourth Plaintiff in the Trustee Removal Proceeding), October Flower and Voyager. Luisa is a current director of Vivik. He says that Morans are the accountants for Vivik and were previously the accountants for Adjoval, October Flower and Voyager until Adrian's death.[178]
292 Mr Hughes deposes that the documents were redacted and that if disclosed in full, they would reveal sensitive or confidential information of these third party corporate entities such as bank account details and financial information, which information is not relevant to the trusts and is not required in order to understand the accounts of the trusts.[179]
293 In terms of the attitude of these corporate third parties to the release of their confidential information, Mr Hughes deposes that:[180]
(a) Vivik has been asked whether it wishes to maintain a claim of confidentiality in respect of its information but as at the date of his affidavit, no response had been received.[181]
(b) LHPW wrote to ABL in respect of the documents relating to Adjoval, October Flower and/or Voyager containing confidential information. As I understand it, the parties as at the date of the Hughes Affidavit, the parties are still corresponding regarding documents relating to Adjoval and to Adrian, but no response had been received by that time in respect of October Flower or Voyager.
294 The parties' submissions in respect of confidentiality, already set out in these reasons, apply to this sub-category.
295 I see no good reason as to why documents revealing confidential or sensitive information of third party corporate entities should be produced to the Plaintiffs. As set out above, the Trustees are entitled to withhold such information. I do not consider it decisive that Vivik has not yet responded to HWLE's enquiry: it seems reasonable to me that it would expect such information to be kept confidential by the Trustees.
296 To the extent that the Plaintiffs wish to follow up on obtaining documents revealing confidential information of Adjoval, then they can do so separately with the Trustees by requesting those particular documents. There seems little reason to refuse such a request. I do not consider it an appropriate use of the Court's resources for me to trawl through some hundreds of documents in Hughes Schedule 19 so as to ascertain which documents fall within such a category.[182] There is insufficient evidence before me as to whether October Flower and Voyager are within Ms Chan's control or not: the only evidence I have is that she is a director of those entities. In the circumstances, I am not prepared to make orders for production of documents revealing confidential or sensitive information of those entities.
Documents disclosing bank account details, financial or personal information of other third parties
297 This sub-category is described as emails, letters and documents disclosing bank account details, financial information or personal information of other third parties, including Luisa (in her personal capacity), Empaval, Mariano (in his personal capacity), Patricia Amad (Mariano's partner), Nadia Valmorbida, Elise Valmorbida, other members of the extended Valmorbida family, Kal, Vinrose in its capacity as trustee for the McDonald Trust, Ms Chan, and Adrian.[183]
298 Mr Hughes deposes that the documents were redacted and that if disclosed in full, they would reveal sensitive or confidential information of these third parties such as bank account details, personal expenditure or other private information, which information is not relevant to the trusts and is not required in order to understand the accounts of the trusts.[184]
299 In terms of the attitude of these third parties to the release of their confidential information, Mr Hughes deposes that:[185]
(a) Insofar as documents relate to Ms Chan or Adrian, the matters referred to in paragraph 293(b) apply;
(b) Insofar as documents relate to Mariano or Empaval, HWLE stated that they maintain their claims of confidentiality and do not consent to unredacted versions being provided to ABL; and
(c) Insofar as the other third parties are concerned, it was not practical or efficient to contact each of them individually. Nonetheless, the information is confidential, personal or sensitive on its face.
300 The parties' submissions in respect of confidentiality, already set out in these reasons, apply to this sub-category.
301 I see no good reason as to why documents revealing confidential, personal or sensitive information of third parties should be produced to the Plaintiffs. As set out above, the Trustees are entitled to withhold such information. I do not consider it decisive that not all such persons have been asked for their views about producing such information to the Plaintiffs: it seems reasonable to me that they would expect such information to be kept confidential by the Trustees.
302 To the extent that the Plaintiffs wish to follow up on obtaining documents revealing confidential information only of Ms Chan or Adrian, then they can do so separately with the Trustees by requesting those particular documents. There seems little reason to refuse such a request. I make the same comments as to the appropriateness of the use of the Court's resources to identify such documents as I made in paragraph 296 above.
303 I do not consider it necessary for me to inspect the documents in Hughes Schedule 19,[186] as I am satisfied that the evidence has established that the confidential information withheld by the Trustees is information that they are entitled to withhold pursuant to Paragraph Two of the Trust Records Orders. Being satisfied with that evidence, I do not consider it necessary for me to inspect a sample of these documents so as to verify the Trustees' categorisation of them.
304 Accordingly, the Trustees are entitled to resist production of the documents withheld, or unredacted versions of those which have been redacted, listed in Hughes Schedule 19.
305 Hughes Schedule 20 contains 81 documents which were excluded on the grounds of Reason F, being documents recording sensitive or private details of other parties, many of which overlap with Reason E.[187] In other words, these fall within the Other Withheld Documents. The other parties include Gary Norris (a former employee of Voyager), CW Retail Trust (a tenant at property owned by Golden Fin), and the entities and persons referred to when discussing Hughes Schedule 19.
306 Mr Hughes deposes that the 81 documents in Hughes Schedule 20 have been redacted and that he has reviewed the redactions. He says that if fully produced, the documents would disclose sensitive or confidential information of these third parties such as tax file numbers, bank account details, bank statements and personal or corporate information which is not relevant to the trusts and not required in order to understand the accounts of the trusts.
307 I take the same approach to this schedule as I do to Hughes Schedule 19. I am satisfied with the evidence as to the sensitive or confidential nature of the information withheld and the Trustees are entitled, for the same reasons as previously, expressed, to continue to withhold the redacted information. For the sake of completeness, I note that I have not considered it necessary to inspect the documents in Hughes Schedule 20.
308 It is convenient here to summarise the outcomes in respect of each of the Hughes Schedules:
(a) The Trustees are not required to produce to ABL the documents, or redacted portions thereof, listed in Hughes Schedules 2, 3, 8, 16, 17, 18, 19 and 20;[188]
(b) The Trustees are required to produce all of the documents, or redacted portions thereof, listed in Hughes Schedules 1, 15, 4, 10 and 7;[189]
(c) In respect of Hughes Schedule 6, the Trustees are required to produce these documents, however they may first be redacted using the approach taken in respect of Hughes Schedules 2 and 3.[190]
(d) In respect of Hughes Schedule 9:
(i) The Trustees are required to remove the redactions specified in paragraph 187 above; and
(ii) Otherwise, the Trustees are not required to produce any of the other documents in this schedule.
(i) The Trustees agreed, during the course of submissions, to produce the documents referred to in paragraph 193 above;
(ii) The Trustees are required to produce the 6 documents listed in paragraph 196(e) above; and
(iii) Otherwise, the Trustees are not required to produce any of the other documents in this schedule.
(f) In respect of Hughes Schedule 12, the Trustees are required to produce the documents, or the redacted portions thereof, listed in Hughes Schedule 12, save for those listed as having been excluded on account of Reason E;[191]
(g) In respect of Hughes Schedule 14, the parties should review my conclusions as set out in paragraphs 202 to 204. If there is not consent between them following that ruling, then further material is required from the parties in respect of documents which relate to the VCAT proceeding, as set out in paragraph 204 above; and
(h) In respect of Hughes Schedule 19, apart from what I have said in paragraph (a) hereof, it is up to the Plaintiffs to follow up with the Trustees the matters referred to in paragraphs 296 and 302 above.
309 The parties are to confer regarding a form of orders to give effect to this ruling (including as to costs) and to provide my Chambers with proposed consent orders by 4.00 pm on 10 September 2021. If the parties do not agree on the proposed consent orders, then each party is to send to my Chambers their preferred orders and a short written submission of no more than 3 pages by that date, in which case the proceeding will be listed for hearing and the making of orders (including as to costs) on 17 September 2021.
KAIRU (ERICA) CHAN (in her capacity as executor of the estate of ADRIAN VALMORBIDA, deceased)
MARADVAL PTY LTD (ACN 616 314 222) AS TRUSTEE OF THE ADMARVAL DISCRETIONARY TRUST
KAIRU (ERICA) CHAN (in her capacity as executor of the estate of ADRIAN VALMORBIDA, deceased)
[11] Hughes Affidavit, [18], [21(a)(x)]; Ford Affidavit, [8]-[9].
[13] Hughes Affidavit, [23]; Ford Affidavit, [10].
[15] Hughes Affidavit, [30]. Exhibit LOSH-5 to that affidavit contains a copy of the Key Descriptions Document.
[16] Hughes Affidavit, [30]; Ford Affidavit, [28].
[19] Transcript, 25 May 2021, 177.7 - 179.7.
[20] Relying on Krok v Szaintop (No 1) [2011] VSC 16 ('Krok').
[21] [2021] VSC 295, [31].
[22] I note here for completeness that to the extent that the objection to production is taken by a third party (eg Mariano) and not the Trustees, then the common law applies and not the Evidence Act, as s 131A only applies where it is the person obliged to produce the document who objects to its production: Cargill Australia Ltd v Viterra Malt Pty Ltd (No 8) [2018] VSC 193, [42]. Nonetheless, the analysis in respect of those documents is likely to be the same.
[23] The Evidence Act refers to it as 'client legal privilege' whereas it is usually referred to in common law cases as 'legal professional privilege'. Nothing turns on this distinction and the terms are used interchangeably in these reasons.
[24] Samenic Ltd v APM Group (Australia) Pty Ltd [2011] VSC 194, [19].
[25] [2016] VSC 311 ('IOOF v Maurice Blackburn').
[26] IOOF v Maurice Blackburn, [47], citations omitted.
[27] IOOF v Maurice Blackburn, [48], citations omitted.
[28] Lynton Tucker et al, Lewin on Trusts (Sweet & Maxwell, 20th ed, 2020) 21-059 (citations removed) ('Lewin on Trusts').
[29] Referring to Re Londonderry's Settlement [1965] Ch. 918 at 940.
[31] Schreuder v Murray [No 2] [2009] WASCA 145; (2009) 260 ALR 139 at 160-161 [94] (Buss JA, McLure JA agreeing), at 142 [10] (Pullin JA) ('Schreuder v Murray'). See, also Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd [2011] VSC 477, [17]-[20] (Macaulay J) ('Dura'); Tabcorp Holdings Ltd v Victoria [2013] VSC 302, [119]-[120] (Sifris J); Krok (Judd J).
[32] Schreuder v Murray, 160-161 [94] (Buss JA, McLure JA agreeing).
[33] Hancock v Rinehart [2015] NSWSC 646, [360] (Brereton J).
[34] Lynton Tucker et al, Lewin on Trusts (Sweet & Maxwell, 18th ed, 2008) 23-49, (citations omitted).
[35] [2009] NSWSC 789; (2009) 76 NSWLR 586, 596-597 ('Gray').
[37] Hancock v Rinehart (Trust documents) [2018] NSWSC 1684 at [60] (Brereton J). See, also Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd [2011] VSC 477 at [20] (Macaulay J).
[40] Sidney Phipson, Phipson on Evidence (Sweet and Maxwell, 14th ed, 1990).
[41] Yunghanns v Elfic Pty Ltd (No 2) [2000] VSC 113; (2000) 1 VR 92, 102-103 [35].
[49] See Applebay letter dated 25 September 2016, being Exhibit SMF-45 tabs 32 and 33 to the Ford Affidavit.
[51] Ford on Trusts, [9.4010]: a trustee of more than one trust must keep the accounts of each trust separate and the trustees' duties relative to one trust should be discharged without regard to their duties relative to any other.
[52] ASC v AS Nominees [1995] FCA 1663; (1995) 62 FCR 504, 514.
[53] Hughes Affidavit, exhibits LOSH-2, 3 and 4.
[55] Odgers, Uniform Evidence Law (13th edition), EA.122.360.
[56] Farrow Mortgage Services v Webb [1996] NSWSC 259; (1996) 39 NSWLR 601, 612 ('Farrow v Webb').
[57] Farrow v Webb, 608 (Sheller JA).
[58] [1981] QB 223, 243, quoted in Farrow v Webb, 609.
[59] Banksia Securities Ltd v Trust Co [2017] VSC 583. [29] (Sifris J, as his Honour then was).
[60] Section 117 of the Evidence Act.
[62] Transcript, 25 May 2021, 148.29 - 141.28.
[64] [1999] SASC 181; (1999) 73 SASR 484 ('Rouse v IOOF').
[68] Rouse v IOOF, [103]. The principles expressed in Rouse v IOOF have been accepted on numerous occasions, including recently by Beach J in Webster (Trustee) v Murray Goulburn Co-Operative Co Ltd (No 3) [2018] FCA 990, [109] ('Webster v Murray Goulburn').
[69] [2003] UKPC 26; [2003] 2 AC 709 ('Rosewood Trust').
[70] Rosewood Trust, 734-735 (emphasis added). These observations were cited with approval by Gzell J in Avanes v Marshall [2007] NSWSC 191; (2007) 68 NSWLR 595, 598 and by Beach J in Webster v Murray Goulburn, [114].
[71] (1992) 29 NSWLR 405 ('Hartigan Nominees').
[76] Deutsch v Trumble, 126-127. See Chan No 1, [164] (citations omitted, emphasis added).
[77] Lewin on Trusts (20th ed, 2020), at 21-065 (citations omitted).
[78] Transcript, 24 May 2021, 51.26 - 52.7.
[79] Relying on Rouse v IOOF, [101].
[83] [2011] VSC 204, [62].
[85] [2018] WASC 176 ('Carr v Larussa'), applying the approach taken in Wood (as Co-Executor and Trustee of the Will of the Deceased) v Wood [No 2] [2014] WASC 3.
[87] Transcript, 25 May 2021, 161.6 - 26.
[100] Hughes Affidavit, [72], [74(a)].
[107] Transcript, 25 May 2021, 179.20 - 182.21. These are documents numbered: 110, 118, 336, 350, 358, 466, 469, 472, 687, 490, 934 and 1114.
[108] By the time of the hearing, a small number of these were no longer disputed.
[111] Hughes Affidavit, [88]-[89].
[112] Hughes Affidavit, [46], [53], [69], [76], [81], [91].
[113] Hughes Affidavit,[46], [53], [69], [76], [81], [91].
[114] Hughes Affidavit, [46], [91].
[115] Hughes Affidavit, [54], Exhibit LOSH-1, pp.14-16.
[120] Exhibit LOSH-1 to the Hughes Affidavit, pp.14-16.
[121] Hughes Affidavit, [43]-[45].
[124] Exhibit LOSH-1 to the Hughes Affidavit, p.5.
[127] FASOC, Mariano's Amended Defence and Counterclaim dated 27 October 2020, Trustees' Further Amended Defence dated 16 October 2020, [105]-[106].
[128] Exhibit LOSH-1 to the Hughes Affidavit, pp.14-16.
[129] Identified as document number 553, GC.003.001.4421 by the Plaintiffs' Counsel.
[130] Transcript, 24 May 2021, 111.14 - 112.12.
[132] Transcript, 24 May 2021, 112.12-15.
[133] Exhibit LOSH-1 to the Hughes Affidavit, pp.14-16.
[137] Exhibit LOSH-1 to the Hughes Affidavit, pp.14-16.
[140] Hughes Affidavit, [80]-[81].
[141] Exhibit LOSH-1 to the Hughes Affidavit, pp.14-16.
[145] Documents number 394 (GC.002.001.1949) and number 395 (GC.003.001.1950).
[146] Transcript, 24 May 2021, 66.26 - 67.13.
[150] Exhibit LOSH-1 to the Hughes Affidavit, pp.14-16.
[152] Hughes Affidavit, [96]. The three documents which were produced in full were GC.003.001.9690 (number 791), GC.003.001.9692 (number 792) and GC.003.001.9693 (number 793).
[155] Hughes Affidavit, [99]-[100]. These are documents DF.001.001.0924 (number 151), DF.001.001.0923 (number 150), GC.003.001.8189 (number 756), GC.003.001.8191 (number 757), GC.003.001.8193 (number 758), GC.003.001.8194 (number 759), GC.003.001.8195 (number 760), and GC.003.001.8196 (number 961).
[157] Being document numbers 151, 247, 939, 995 and 996.
[158] Hughes Affidavit, [102]. Mr Hughes says there are 14 documents in Hughes Schedule 18 and elsewhere he says there are 18 documents, but nothing turns on this.
[161] Being document numbers 857 and 989.
[164] Hughes Affidavit, [105(a)(i)].
[165] Hughes Affidavit, [105(a)(ii)].
[166] Hughes Affidavit, [105(a)(iii)].
[168] As noted above, Mr Rizio is also the company secretary of Iconic and Sirena.
[170] Hughes Affidavit, [105(a)(iv)].
[172] Hughes Affidavit, [105(a)(v)].
[173] Hughes Affidavit, [105(a)(iii)4, (vii)].
[174] Hughes Affidavit, [105(a)(iii)4, (vi)].
[175] Ford Affidavit, [71]; exhibit SMF-45, tab 36.
[178] Hughes Affidavit, [105(b)(i)].
[179] Hughes Affidavit, [105(b)(ii)].
[180] Hughes Affidavit, [105(b)(iii)].
[181] Hughes Affidavit, [105(b)(iii)1].
[182] The Trustees have provided a list of documents in Hughes Schedules 19 and 20 pertaining to the Sirena Group and Italian Media Group, such that those have been identified and could be disregarded in such an exercise, but there remain over 200 documents in Hughes Schedule 19 which would have to be reviewed should I be inclined to undertake the task.
[183] Hughes Affidavit, [105(c)(i)].
[184] Hughes Affidavit, [105(c)(ii)].
[185] Hughes Affidavit, [105(c)(iii)].
[186] Save that I did inspect documents specifically referred to in submissions from that schedule, being document numbers 989, 857, and 762-766.
Chan
Valmorbida Custodians Pty Ltd [2021] VSC 527
(2009) 260 ALR 139
(1996) 39 NSWLR 601
(1992) 29 NSWLR 405
(2016) 52 VR 108
(2009) 76 NSWLR 586
(2000) 1 VR 92
(1999) 201 CLR 1
(1995) 62 FCR 504
(1999) 73 SASR 484
(2007) 68 NSWLR 595