Quebani Pty Ltd v McDonald's Australia Limited

(a) McDonald's issued media statements; > > (b) McDonald's took operational control over the Mildura restaurants; > > (c) with McDonald's' assistance, Mr Vigors sold the Mildura restaurants to a new franchisee, Mr Leigh Colbert. It is noted that Mr Vigors had already entered into a heads of agreement to sell the stores to Mr Colbert prior to the viral incident; and > > (d) McDonald's corresponded with Mr Vigors and his solicitors throughout this period.

6. For convenience, I will refer to the proposed sale to Ms Burgess, McDonald's notification of its intention to exercise of its right of refusal in relation to that proposed sale, the viral event, and the sale of the restaurants to Mr Colbert as the 'Relevant Events'.

C The documents over which privilege is claimed

1. The First Cawood Affidavit contains a schedule ('Cawood Schedule') identifying and describing each of the documents which McDonald's claims are privileged on the basis of LPP. By that schedule, McDonald's identifies, amongst other things:

(a) the date of each communication; > > (b) the parties to each communication; and > > (c) a description of each communication, and the basis for the LPP claim by reference to the communication's dominant purpose.

2. The Napoli Affidavit and Hardie Affidavit each contain similar schedules, describing the privileged documents included in the Cawood Schedule to which Ms Napoli and Ms Hardie were a party.
3. For convenience, I will refer to the above schedules of documents contained in the affidavits of Mr Cawood, Ms Napoli or Ms Hardie as 'the LPP Schedules'.

D The evidence of McDonald's before Matthews AsJ

1. McDonald's did not and does not dispute that at all relevant times, Mr Cawood held both legal and non-legal roles at the company as:[6]

(a) McDonald's General Counsel (legal role); > > (b) a company director (non-legal role); and > > (c) McDonald's Franchise Relationship Officer (non-legal role).

2. By his affidavit evidence, Mr Cawood deposes to the following, in summary:[7]

(a) His primary day-to-day responsibility is as a lawyer in his capacity as McDonald's General Counsel.[8] In that role, he leads the company's legal team. In respect of the Relevant Events, McDonald's legal team included Amy Hardie, Emma Napoli, Hannah Dakin and Vanessa Magee. > > (b) McDonald's also briefs external lawyers from time to time. In respect of the dispute with the plaintiffs, McDonald's engaged the law firm Maddocks to provide legal advice and draft legal documents. > > (c) In relation to the proposed sale to Ms Burgess, both McDonald's internal legal team and its external solicitors provided legal advice to McDonald's about the proposed sale and McDonald's entitlement to exercise its right of refusal. > > (d) Following the viral incident, the McDonald's legal team provided legal advice on draft media communications, draft correspondence to Mr Vigors and his solicitors, potential legal liability arising from the incident, McDonald's taking operational control of the Mildura restaurants, the documents necessary to give effect to the sale to Mr Colbert, and other matters related to this transaction.[9] > > (e) McDonald's internal lawyers were limited to a legal role in respect of the proposed sale to Ms Burgess, the viral incident, and the subsequent sale transaction to Mr Colbert.[10] That is, they were not asked to provide any commercial or non-legal advice.[11] > > (f) Mr Cawood says he was not a decision-maker in relation to McDonald's decision to take operational control of the Mildura restaurants, although he was consulted by the relevant decision-makers throughout the period (by telephone, text messages and email) about the legal risks associated with the viral incident, and the legal options available to the company. Throughout December 2019 and January 2020, he provided legal advice, including by seeking instructions about the factual circumstances of the viral incident so he could provide that legal advice. > > (g) In respect of the sale of the Mildura restaurants to Mr Colbert, Mr Cawood says that his only involvement was to give legal advice in respect of the transfer of them to Mr Colbert. He says he was not involved in any commercial or other negotiations.

3. Mr Cawood also gave evidence about certain partially redacted documents McDonald's had discovered, explaining that these documents were redacted on the basis that they were partly privileged.[12] The plaintiffs do not challenge the privileged status of those documents by this appeal.
4. At the relevant time, Ms Napoli was employed as McDonald's Director of Legal and Deputy General Counsel. She reported directly to Mr Cawood and supported him to run the company's internal legal team.[13] In summary, Ms Napoli deposes to the following:[14]

(a) The legal team's role in respect of the Relevant Events included: > > > (i) providing legal advice in response to the viral incident; > > > > (ii) providing and reviewing legal documentation in relation to the viral incident; and > > > > (iii) providing legal advice, including drafting and reviewing documentation, concerning the sale of the Mildura restaurants to Mr Colbert. > > (b) She says that the privileged communications addressed in her affidavit were sent in relation to these three roles.

5. At the relevant time, Ms Hardie was employed as Senior Legal Counsel at McDonald's, where she reported directly to Ms Napoli within the company's legal team.[15] In summary, Ms Hardie deposes that:[16]

(a) She understood Mr Cawood was acting as General Counsel in respect of Mr Vigors' proposed sale of the restaurants to Ms Burgess, the viral incident, and the subsequent sale of the restaurants to Mr Colbert. > > (b) On or about 15 December 2019, she was informed of the viral incident by Mr Cawood during a phone call, and was told by Mr Cawood that they would need to draft some legal documentation.[17] > > (c) She prepared legal documentation for McDonald's franchising matters. It was standard practice that she would receive instructions from either an accountant, a finance manager, or a more senior member of the legal team at McDonald's, and then draft legal documents according to their instructions.[18] > > (d) In respect of matters involving Mr Vigors, she received instructions from Faisal Bhatti, who was a finance manager at McDonald's. Mr Bhatti would begin preparing template documents with commercial terms inserted within, and then send these documents to Ms Hardie to review, provide legal advice, and then prepare legal documentation.[19]

E The evidence of the plaintiffs before Matthews AsJ

1. The plaintiffs' solicitor, Mr Stanarevic, provided two affidavits. The First Stanarevic Affidavit exhibits correspondence between the parties' solicitors in which the dispute over the LPP claims was ventilated and discussed.[20] The Second Stanarevic Affidavit describes and exhibits several documents involving Mr Cawood, which Mr Stanarevic asserts 'seem to show that Craig Cawood and Emma Napoli were both acting in a non-legal capacity in relation to the transfer of [Mr Vigors'] Restaurants to Leigh Scott Colbert'.[21]
2. The plaintiffs also relied upon the Cables Affidavit to support their assertion that Mr Cawood did not act solely in a legal role at McDonald's. In summary, Ms Cables deposed that:[22]

(a) She has been a licensee of multiple McDonald's restaurants for over 25 years. > > (b) Between around November 2016 to January 2017, Mr Cawood supervised an investigation into some of her restaurants, and at that time, he held the roles of Senior Vice President, General Counsel, and Franchise Relationship Officer of McDonald's. > > (c) She attended a number of meetings and a telephone conference involving Mr Cawood. > > (d) She alleges that: 'Craig Cawood is actively involved with franchisees. He does not merely provide legal assistance to McDonald's. The Field Consultants which attended my restaurants reported directly to Craig Cawood, during the investigation into my restaurants'.

1. Matthews AsJ upheld all of McDonald's privilege claims. In summary, and relevant to this appeal, her Honour:

(a) refused to grant the plaintiffs leave to cross-examine Mr Cawood; > > (b) rejected the plaintiffs' arguments that McDonald's affidavit evidence was inadmissible; > > (c) was satisfied that: > > > (i) Mr Cawood had acted in a legal capacity in respect of his involvement in the Relevant Events;[23] > > > > (ii) McDonald's in-house lawyers were acting in a legal role when communicating with employees of McDonald's in respect of the Relevant Events;[24] and > > > > (iii) Ms Napoli and Ms Hardie had acted in a legal capacity in respect of their involvement in the Relevant Events;[25] > > (d) found that the descriptions of the privilege claims in the LPP Schedules regarding each communication over which privilege was claimed, together with the evidence provided in the bodies of the First Cawood Affidavit, the Napoli Affidavit and the Hardie Affidavit, were sufficient to satisfy her Honour that the documents were privileged, subject to her inspection of particular documents;[26] and > > (e) assessed each of McDonald's privilege claims and upheld them on the basis of all the evidence. In doing so, her Honour inspected a number of the privileged documents out of 'an abundance of caution' to satisfy herself that the LPP claims were valid.[27]

1. An appeal brought under r 77.06 of the SC Rules is to be conducted by way of rehearing. This means that before appellate power can be exercised by this Court to overturn the Ruling, the plaintiffs must demonstrate that a factual, legal or discretionary error was made by Matthews AsJ. As stated in Oswal v Carson (citations omitted):[28]

Such appeals are no longer by way of rehearing de novo. Instead, they are rehearings which, in the absence of further evidence or a change in the law, ordinarily require the appellant to show error on the part of the Associate Judge before appellate power may be exercised. In addition, if the orders from which an appeal is brought relate to a matter of practice and procedure ... an appellate court will exercise particular caution in reviewing the decision.

2. Further, with respect to discretionary decisions made by the primary judge, the principles stated by Elliott J in Re IPO Wealth Holdings No 2 Pty Ltd (in liq); Mawhinney v Giasoumi[29] apply. Namely:[30]

[54] ... before a discretionary decision of a court may be overturned, the appellant must show an error of the kind identified in House v R. In that case, it was stated: > > It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if [she or] he allows extraneous or irrelevant matters to guide or affect [her or] him, if [she or] he mistakes the facts, if [she or] he does not take into account some material consideration, then [her or] his determination should be reviewed and the appellate court may exercise its own discretion in substitution for [her or] his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in [her or] his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. > > [55] In some instances, it may not be possible to identify with sufficient certainty the exact class of error made by the trial judge. Nevertheless, where the decision is so unreasonable or plainly unjust, the appellate court may infer that an error of the kind described in House v R has occurred and that the decision should be overturned. > > [56] However, there is a strong presumption in favour of the correctness of a discretionary decision and the authorities make clear that the judgment the subject of rehearing should be overturned only if it is "clearly" or "plainly" wrong. In other words, an appellate court must be persuaded that the order stands outside the limits of "sound discretionary judgment" before it intervenes. > > [57] Indeed, insofar as the 4 classes of error identified in House v R are concerned: > > (1) Acting upon a wrong principle will only invalidate a decision where the principle is a "binding rule rather than a guideline". A failure to apply a guideline will not, of itself, amount to error. This is because there may be instances where it is inappropriate to follow a guideline or, regardless of the failure to apply it, the overall decision is still the product of a sound discretionary judgment. > > (2) A mistake of fact must be "clearly wrong". > > (3) Considering an irrelevant factor or failing to consider a relevant factor will only warrant setting aside a discretionary decision if it "really amounts to a failure to exercise the discretion actually entrusted to the court". > > [58] Further, the court will be slow to overturn a discretionary decision on the grounds that the primary judge failed to give appropriate weight to various factors. The "constant emphasis" of the authorities is that an appellate court should not overturn a decision merely because it would have accorded the factors different weight ... > > [59] In short, the onus borne by an appellant seeking to disturb a discretionary decision is heavy.

1. Section 118 of the Evidence Act 2008 (Vic) ('Act') governs the present dispute.[31] By operation of s 131A of the Act, the provision operates in respect of pre-trial discovery (with any necessary modifications).
2. Section 118 of the Act addresses 'advice privilege' and provides as follows:

Legal advice > > Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of -

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

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

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

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

1. The statutory provisions reflect the common law. That being so, the principles developed in cases concerning LPP at common law can be applied in disputes concerning 'client legal privilege' under the Act, and have been applied in such disputes by this Court.
2. In IOOF Holdings Ltd v Maurice Blackburn Pty Ltd,[32] Elliott J helpfully summarised the relevant principles as follows:[33]

(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.

3. With respect to copies of documents and attachments to documents, the following principles are also relevant:

(a) A copy of a document not otherwise protected by privilege will attract LPP where the copy is brought into existence for the dominant purpose of seeking or providing legal advice (or in the case of litigation privilege, for the dominant purpose of being used in legal proceedings).[34] > > (b) For the purpose of the principle above, attaching a file to an email or forwarding an email chain amounts to making a 'copy' of the attached file or the email chain, at least where the attached file or forwarded email chain has been 'purposefully incorporated' into the communication to or from a lawyer.[35]

1. Where privilege is claimed, the following principles are relevant to the proof of the claim:

(a) The party claiming privilege carries the onus of proving that the communication was made for the dominant purpose of giving or obtaining legal advice. The onus might be discharged by evidence as to the circumstances and context in which the communications occurred, or by evidence as to the purposes of the person who made or procured the communication. It might also be discharged by reference to the nature of the communication, supported by argument or submissions.[36] > > (b) The purpose for which a communication is made must be determined objectively. Evidence of the intention of the person who made the communication, or of the person who authorised or procured it, is not necessarily conclusive. Further, a privilege claim may be established on the basis of evidence from persons other than the author of the relevant communication: in this regard, case management and efficiency considerations may render it inappropriate for all authors of documents over which privilege is claimed to make affidavits.[37] > > (c) Where communications take place between a client and their independent legal advisers, or between a client's in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice is being sought, absent any contrary indications.[38] In the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given.[39]

2. Further, the High Court has confirmed that when determining a privilege dispute, courts have undoubted power to inspect documents over which LPP is claimed, and 'should not be hesitant to exercise such power' where there is a disputed claim.[40]

1. The plaintiffs raised 21 separate appeal grounds as follows:

1. The Primary Judge erred in refusing the plaintiffs' application for leave to cross examine Mr Cawood. 2. The Primary Judge denied the plaintiffs natural justice in refusing to grant leave to cross examine Mr Cawood. 3. The Primary Judge erred in admitting into evidence the affidavits of Craig Cawood, Emma Napoli and Amy Hardie. 4. The Primary Judge erred in holding that there was a sufficient basis to determine that the documents were created for the dominant purpose of obtaining and receiving legal advice. 5. The Primary Judge erred in holding that the claim for LPP was sufficiently described in the First Cawood Affidavit. 6. The Primary Judge erred in determining the claim for LPP globally on multiple documents instead of separately for each document. 7. The Primary Judge erred in holding that it would be sufficient for a claim of LPP if a lawyer was included in an email chain. 8. The Primary Judge failed to make any necessary findings as to whether the documents were confidential for a claim of LPP to be made. 9. The Primary Judge failed to consider whether the claim for legal advice was the dominant purpose for the creation of a document, when there were multiple purposes for its creation. 10. The Primary Judge erred in holding that some of the documents that recorded communications between non-lawyers were subject to LPP. 11. The Primary Judge erred in holding that some of the documents that were routed through to a lawyer were privileged. 12. The Primary Judge erred in failing to give any weight to Mr Cawood being a director of McDonald's and having a non-legal role within the company. 13. The Primary Judge erred in holding that some of the documents which involved the creation of and reviewing legal documentation was privileged. 14. The Primary Judge erred in holding that some of the documents which involved arranging for the provision of legal advice were privileged. 15. The Primary Judge gave excessive weight to the evidence of McDonald's lawyers as to their subjective purpose in the creation of the documents. 16. The Primary Judge erred in holding that the general context in which the documents were created was relevant for determining whether the claim for LPP was sufficiently described. 17. The Primary Judge erred in holding that the claim for LPP was sufficiently described. 18. The Primary Judge erred in holding that McDonald's affidavits could be taken into account given the Orders made on 9 May 2022 provided that the claim for LPP must be sufficiently described in one document. 19. The Primary Judge denied the Plaintiff natural justice by taking into account McDonald's affidavits given the Orders made on 9 May 2022 provided that the claim for LPP must be sufficiently described in one document. 20. The Primary Judge erred in inspecting selected documents for the purposes of determining the claim for LPP.

21. The Primary Judge erred in upholding McDonald's claim for LPP.

2. For convenience, I have grouped these appeal grounds in the manner suggested by McDonald's, as follows:

(a) grounds concerning the plaintiffs' application to cross-examine Mr Cawood; > > (b) grounds concerning the admission of McDonald's affidavits into evidence; > > (c) grounds concerning the assessment of McDonald's LPP claims; and > > (d) grounds concerning the primary judge's treatment of Mr Cawood's role and the role of McDonald's lawyers generally.

I Refusal to grant leave to cross-examine Mr Cawood (appeal grounds 1 and 2)

1. At first instance, the plaintiffs applied for an order to cross-examine Mr Cawood pursuant to s 57 of the Civil Procedure Act 2010 (Vic) ('CPA') on the basis that there was a reasonable belief that McDonald's was misinterpreting its discovery obligations and/or failing to disclose discoverable documents. McDonald's opposed that application.
2. The plaintiffs submitted that a 'reasonable belief' arose because of two matters, namely that:

(a) the descriptions of the LPP claims in McDonald's affidavits were insufficient;[41] and > > (b) the existence of more than one affidavit of documents indicated that the wrong person was deposing to matters of LPP, as either Ms Napoli or Ms Hardie should have been deposing to privileged matters they were directly involved in, rather than Mr Cawood.[42]

3. The plaintiffs further submitted to Matthews AsJ that leave should be granted under r 40.04 of the SC Rules to permit cross-examination of Mr Cawood about his role in relation to the Relevant Events. It was the plaintiffs' position that her Honour could not 'draw a presumption of legal professional privilege in favour of an in-house lawyer as a matter of law'.[43]
4. Matthews AsJ refused the plaintiffs' application.[44] Her Honour held, in summary:[45]

(a) The two matters relied upon in support of the application under s 57 of the CPA did not give rise to a reasonable basis for believing that McDonald's had misinterpreted its discovery obligations.[46] > > (b) She would not be assisted by the cross-examination of Mr Cawood in relation to his role within McDonald's. She did not see how such cross-examination would assist her in determining whether the way in which the privilege claims were described was sufficient. She noted that the evidence already established that Mr Cawood had more than one role within the company.[47] > > (c) Further, cross-examination of Mr Cawood would not assist her in determining whether it could be presumed that communications involving in-house lawyers were privileged. Her Honour stated:[48]

As far as I'm concerned, it's a matter for submissions as to what role he was [performing and] what challenge is made to that. I don't see how cross-examination will assist me in relation to that and it certainly wouldn't assist me in relation to whether or not there's a presumption. And so I'm not going to permit the cross-examination of Mr Cawood.

1. Under r 40.04 of the SC Rules, the Supreme Court may order the deponent of an affidavit to attend Court for the purpose of cross-examination in any proceeding, including any interlocutory proceeding.
2. The Court will do so sparingly in an interlocutory application.[49]
3. In determining whether to exercise the Court's discretion to require the deponent of an affidavit to be cross-examined, it is often instructive to weigh the delay, expense and inconvenience likely to be occasioned by the cross-examination against its likely practical utility, being its contribution to the fair resolution of the interlocutory application. Cross-examination should not generally be permitted in relation to matters that are likely to be of merely peripheral significance to the determination of an interlocutory application.[50]
4. Relevant factors which weigh in favour of granting leave to cross-examine during an interlocutory application include where:[51]

(a) the credit of the witness is important to resolving the interlocutory application; > > (b) the interlocutory application requires the establishment of material facts; > > (c) there is a relevant factual dispute which requires cross-examination for its resolution; or > > (d) the interlocutory application is unusual, and it is difficult to know what issues will eventually be relevant.

5. On the other hand, factors which weigh towards excluding or limiting cross-examination include:[52]

(a) where the application is not made bona fide to test an issue of material fact on the interlocutory application, but rather to engage in a rehearsal of issues relevant to the trial; > > (b) the extent to which the pressure of the business of the Court permits cross-examination; and > > (c) the factors referred to by Warren J (as she then was) in Yunghanns v Elfic Pty Ltd,[53] that: > > > (i) insofar as there are inconsistencies in the evidence, such inconsistencies may be appropriate for submissions; > > > > (ii) insofar as there are allegations of recent invention, such matters may be appropriate for submissions; > > > > (iii) it is undesirable except in special compelling circumstances for the Court to permit a party to have the opportunity at an interlocutory stage to cross-examine an opposing party upon an issue of fact that goes to the core of the proceeding, so as to enable the dress rehearsal of a vital component of evidence to be ventilated at trial; or > > > > (iv) where the Court would not be assisted by the cross-examination.

1. The plaintiffs contend that Matthews AsJ should have granted them leave to cross-examine Mr Cawood. The plaintiffs submit the following, in summary:

(a) At paragraph [98] of the Ruling, Matthews AsJ records that she was satisfied, based on all of the material before her, that Mr Cawood was acting in a legal role in respect of his involvement in the relevant subject matters. > > (b) However, the plaintiffs have always disputed Mr Cawood's evidence in relation to his role. Mr Cawood's evidence was ultimately regarded as crucial by her Honour.[54] Yet, by refusing to allow cross-examination, her Honour had no basis to reject his evidence. > > (c) McDonald's own evidence regarding Mr Cawood's role was not unequivocal, as Ms Napoli said that 'in her experience and observations the vast majority of Mr Cawood's role has been and is as general counsel and a lawyer'.[55] > > (d) A number of documents identified by the plaintiffs show that Mr Cawood was involved in more than merely legal matters. Those documents reference Mr Cawood's involvement in non-legal matters including taking operational control of the plaintiffs' restaurants, establishing borrowing guidelines for Mr Colbert, and Mr Cawood's involvement in operational and media issues. Matthews AsJ was wrong to overlook these documents and accept his evidence in full.[56] > > (e) Her Honour was wrong to accept Mr Cawood's evidence that a meeting between himself, Mr Vigors and Mr Antoni Martinez[57] was for the dominant purpose of obtaining legal advice.[58] Given a managerial decision was made at this meeting, it is unlikely that the dominant purpose of the meeting was to obtain legal advice. Mr Cawood may have been attending to take notes, but the purpose of the meeting was likely not for the dominant purpose of obtaining legal advice.[59] > > (f) The fact cross-examination would have touched upon Mr Cawood's decision-making role in respect of matters at the core of the proceeding is a reason that her Honour should have permitted cross-examination. If Mr Cawood did have a decision-making role at McDonald's, that would mean his involvement was not for the purpose of providing legal advice, and LPP may not apply.[60] > > (g) The plaintiffs were in a disadvantaged position where they could not adduce detailed evidence of Mr Cawood's decision-making role, and could only adduce limited evidence of his LinkedIn profile, his formal title, and his conduct in relation to other restaurants.[61] > > (h) Her Honour's reasoning as to why cross-examination would not assist her was circular, and did not consider all of the factors relevant to an interlocutory application for cross-examination.[62] > > (i) The proposed cross-examination would not have caused delay.[63] > > (j) As a consequence of refusing to grant leave to cross-examine Mr Cawood, and depriving the plaintiffs of the opportunity to contest his affidavit evidence, Matthews AsJ denied the plaintiffs natural justice and procedural fairness.[64]

(a) The decision of Matthews AsJ on this point involved the exercise of a discretion on a matter of practice and procedure. As the High Court has observed, there must be particular caution in reviewing decisions pertaining to practice and procedure.[65] The stringent onus on the plaintiffs in seeking to overturn such a decision should be steadily borne in mind. When that is done, no error is discernible in her Honour's decision to refuse cross-examination.[66] > > (b) Matthews AsJ was well within the bounds of her discretion to refuse the application, because:[67] > > > (i) the cross-examination would have touched upon Mr Cawood's decision-making role in respect of matters at the core of the proceeding; > > > > (ii) the question of whether individual documents were subject to LPP could be determined on affidavit evidence in accordance with long-standing authority, and cross-examination would not have assisted in that determination; and > > > > (iii) the adequacy of the articulation of the LPP claims (including the question of whether McDonald's had identified the relevant deponent) was a matter for submissions, and cross-examination could not have assisted with this.

1. The plaintiffs' submissions are directed to Matthews AsJ's decision to refuse their application for leave to cross-examine under r 40.04 of the SC Rules, rather than her Honour's refusal under s 57 of the CPA. In any event, I note that insofar as the application was based on s 57 of the CPA, I can find no error in her Honour's conclusion. I agree with her that neither of the matters relied on by the plaintiffs gave rise to any 'reasonable belief' that McDonald's was misinterpreting its discovery obligations.
2. Further, and as submitted by McDonald's, the documents that are the subject of LPP claims have been discovered (as opposed to being produced for inspection). Consequently, the primary mischief to which s 57 of the CPA is directed, being the non-discovery of discoverable documents, did not arise in the present case.
3. In relation to her Honour's decision under r 40.04 of the SC Rules, that was both a discretionary decision and a decision pertaining to a matter of practice and procedure. Therefore, I must consider whether there was any error on the part of Matthews AsJ in exercising her discretion.[68]
4. I have not been able to identify any relevant error on her Honour's part. Specifically, I am not persuaded that she proceeded on a wrong principle, allowed extraneous or irrelevant matters to guide her, misapprehended a material fact, failed to take into account a relevant factor, or took into account an irrelevant factor.[69]
5. The utility of the proposed cross-examination was a key factor in the primary judge's determination.
6. The plaintiffs identified that their proposed cross-examination would be directed toward questioning Mr Cawood about his multiple roles within McDonald's, to test how the privilege claims over documents were described, and to rebut McDonald's contention that a presumption arose that LPP applied to communications involving its in-house lawyers.
7. It was common ground that Mr Cawood held more than one role at McDonald's. It follows, and her Honour noted, that cross-examination about the existence of his different roles would be of no assistance.[70]
8. In relation to how the privilege claims were described, it was open for Matthews AsJ to determine whether or not those descriptions were adequate to support a LPP claim by reference to the descriptions themselves and supporting affidavit materials. This is the approach commonly adopted in assessing claims of privilege. Consistent with that approach, she determined that the proposed cross-examination would be of no assistance.[71]
9. Mr Cawood also gave evidence that he was acting solely in a legal role in relation to the communications the subject of the privilege claims. The plaintiffs wanted to challenge that fact to undermine any presumption of privilege that may arise. However, it is common ground,[72] and it was drawn to her Honour's attention by McDonald's,[73] that the proposed cross-examination would traverse Mr Cawood's decision-making role in respect of matters at the core of the proceeding. In those circumstances, I find no error on the part of Matthews AsJ exercising her discretion to refuse cross-examination. The authorities establish that cross-examination of a deponent in an interlocutory application should only be allowed sparingly.[74] Further, it is particularly undesirable if the proposed cross-examination goes to the core of the proceeding.[75] There was no compelling circumstance to persuade her Honour otherwise. Specifically, her Honour was not persuaded that evidence suggesting Mr Cawood was involved in non-legal matters would justify his cross-examination. As she noted, on his own evidence, he had a number of different roles within McDonald's. To the extent that there was any inconsistency in the evidence as to his role in relation to the documents the subject of the claim, her Honour determined, and I agree, that in this case they were properly matters for submissions.[76]
10. Accordingly, these appeal grounds are dismissed.

J Admission of McDonald's affidavits into evidence (appeal grounds 3, 18 and 19)

1. The plaintiffs raise three appeal grounds based on objections to the affidavits relied upon by McDonald's.

J.1 Ground 3 - The affidavits were conclusionary

1. The plaintiffs contend that Matthews AsJ erred in admitting McDonald's affidavits into evidence because the affidavits made conclusionary assertions that:

(a) LPP applied to certain documents; and > > (b) McDonald's lawyers did not provide commercial or other non-legal advice.

2. The plaintiffs specifically refer to the conclusions drawn by her Honour at paragraphs [116]-[117] of the Ruling, and contend that these were erroneous.[77]

1. Matthews AsJ considered the plaintiffs' arguments that the evidence that Mr Cawood was acting solely in a legal capacity was inadmissible because it was conclusionary.[78] Relevantly, her Honour then held:[79]

[98] I am satisfied, based on all of the material before me, that Mr Cawood was acting in a legal role in respect of his involvement in the subject matters. His own evidence is very clear on this point and I do not accept the Plaintiffs' attack on portions of his evidence. To contend that Mr Cawood cannot give evidence about his own multiple roles and which role he was performing at any particular time is nonsensical. He is best placed to do so, and to say that his evidence that he was acting in a legal role is conclusionary and only an opinion is also nonsensical. Whether I accept Mr Cawood's characterisation of his role depends on an analysis of all of the evidence, which is what I have done, but it does not mean that Mr Cawood cannot give the evidence he does. > > [99] To the extent that the Napoli and Hardie Affidavits are relied upon as evidence of Mr Cawood performing only in a legal role in respect of the subject matters, I accept that evidence insofar as Ms Napoli and Ms Hardie depose to their own interactions with him about those matters. Such evidence is direct and within their knowledge. To the extent that they stray into generalisations about Mr Cawood's role that is not based on those interactions, their evidence is of little weight.

2. Her Honour also drew a distinction between the admissibility of Mr Cawood's evidence and the evidentiary weight attached to it, stating:[80]

[113] In Setka v Dalton, Daly AsJ found that while there were some shortcomings in the evidence relied upon by Boral, it was difficult to see how, practically speaking those difficulties could have been overcome. > > [114] Her Honour then went on to find that the deficiencies in Boral's evidence went to the weight to be afforded the deponent's evidence rather than its admissibility. The deponent had given evidence of the context in which the documents were created, the purposes for the solicitors' retainer, and there was: > > ample, uncontested documentary evidence which reveals and explains the sequence of the relevant events and disputes, and the nature and scope of [the solicitors'] retainer, and further evidence is not always necessary to explain what those documents mean. > > [115] Having said that, her Honour went on to say the following, which I note that the Plaintiffs did not refer to. Why that was the case I do not know, since it is of more assistance to them than the passages they did rely on. Daly AsJ stated: > > However, [the deponent's] lack of direct involvement in the relevant events and communications means that, where there is some doubt about the provenance and purpose of particular communications which cannot be resolved by inspection of the document recording the communication in question, then the absence of direct, specific evidence regarding the purpose (as opposed to the description) of the document concerned means that, in such cases, Boral will not have discharged the burden of establishing that the dominant purpose of the relevant communication was for Boral to seek or receive legal advice. In other words, while the evidence relied upon by Boral is sufficient to advance Boral's claims for privilege, in some cases, the evidence is generally insufficiently direct or focussed to resolve any doubts which arise upon inspection of the challenged documents. > > [116] Mr Cawood clearly can, and does, give direct evidence as to the purpose of the communications he was involved in. He can, and does, give direct evidence of the context for those communications since he was involved in the subject matter of the events, either through his direct involvement or his supervision of Ms Napoli and Ms Hardie. Further, he deposes that he has made all due and proper enquiries before making the First Cawood Affidavit. This is not a situation such as that in Andrianakis v Uber, where the deponent of the affidavit was the external solicitor who had no more involvement in the events or the subject documents/communications than and commenting on the purpose of them via instructions to him of the context and reviewing the documents themselves. > > [117] Therefore, I do not accept the Plaintiffs' submission that Mr Cawood's evidence is inadmissible. To the extent that it is non-direct or hearsay in respect of the purpose of any particular document, at most that goes to weight rather than admissibility. > > [118] In any event, there is now evidence from Ms Napoli and Ms Hardie as to the communications they were involved in.

3. Further, Matthews AsJ considered the plaintiffs' argument that the descriptions of the LPP claims were expressed in conclusionary terms because McDonald's had provided no particulars of the topics to which legal advice had been directed.[81] Her Honour noted the plaintiffs' reliance on the decisions of AWB Ltd v Cole (No 5)[82] and Hancock v Rinehart (Privilege)[83] in support of this argument. Subsequently, her Honour held that McDonald's had not simply labelled documents as privileged, but had set out the basis for its LPP claims, and given evidence in general but sufficient terms about the matters to which it was obtaining legal advice.[84] Her Honour was ultimately satisfied that the individual descriptions of privilege claims over each document in the LPP Schedules, together with the evidence in the bodies of McDonald's affidavits, were sufficient to satisfy her that the documents were privileged.[85]

(a) Matthews AsJ erred in admitting into evidence the affidavits of Mr Cawood, Ms Napoli and Ms Hardie. > > (b) Her Honour should not have admitted the assertions made in those affidavits that: > > > (i) LPP applied to the documents specified in the LPP Schedules; and > > > > (ii) McDonald's lawyers did not provide commercial or other non-legal advice;

(c) A LPP claim is not established by mere assertion that privilege applies to particular communications, or that communications are undertaken for the purpose of obtaining or giving 'legal advice'. If assertions of that kind are received in evidence in support of the privilege claim, their conclusionary nature can leave unclear what advice was really being sought.[86]

(d) To sustain a claim of privilege, the claimant must not merely assert it, but must prove the facts that establish it is properly made. A mere sworn assertion that documents are privileged does not suffice, because it is an inadmissible assertion of law. The claimant must set out the facts from which the court can see that the assertion is rightly made, or in other words, expose facts from which the court would have been able to make an informed decision as to whether the claim was supportable. The best direct evidence will be that given by the person whose purpose is in question. A claim for privilege must be made on sworn direct evidence, not inadmissible hearsay or opinion, proving the facts on which the claim is founded.[87]

(a) Further, by analogy to expert evidence, at common law 'an expert opinion is inadmissible unless the expert states in chief the reasoning by which the expert conclusion arrived at flows from the facts proved or assumed by the expert ... [and] the reasoning must be stated'.[88]

(b) The affidavits were not expressed in conclusionary terms. They contained specific identification of the matters giving rise to each LPP claim by way of the LPP Schedules provided by Mr Cawood, Ms Napoli, and Ms Hardie. > > (c) Even if the affidavits were expressed in conclusionary terms, it was open to Matthews AsJ to treat the form of expression as part of the weighing and assessment of the evidence, rather than a matter of admissibility. This approach has been applied in other LPP cases. For example, in Setka v Dalton (No 2),[89] Daly AsJ identified deficiencies in the evidence relied upon by the party claiming privilege, but concluded that the deficiencies went to weight rather than admissibility.[90] > > (d) The plaintiffs' submission that the evidence was akin to expert evidence is misplaced.[91] The affidavits did not express themselves to be based on specialised knowledge, and did not contain any opinion evidence.

1. A review of the transcript of the proceeding before Matthews AsJ reveals that the plaintiffs did not object to the whole of McDonald's affidavit material. Rather, they only objected to the following specific paragraphs:

(e) In the First Cawood Affidavit:[92] > > 1. The involvement of the Company's lawyers in dealing with the events which are the subject of this proceeding was limited to a legal role. In other words, the Company's lawyers were not asked to provide any non-legal advice, such as commercial or public relations advice to the Company. > 2. In respect of the proposed sale to Emma Burgess, the Company's lawyers were required to provide legal advice about various issues, including good faith obligations and the right of purchase contained in the relevant franchise agreements. The lawyers did not provide commercial or other non-legal advice. > > ...

2. Similarly, in respect of the sale of the Mildura restaurants to Mr Colbert, my only involvement was to give legal advice in respect of the transfer of the restaurants. I was not involved in any commercial or other negotiations.

(f) In the Napoli Affidavit:[93]

Role of Craig Cawood

1. During the relevant time, Mr Cawood was the Company's General Counsel and also the Franchise Relationship Officer. As the Franchise Relationship Officer, Mr Cawood was someone to whom franchisees could escalate issues and speak about issues that arose. At no stage did Mr Vigors escalate any issues surrounding the Viral Incident to Mr Cawood in his role as Franchise Relationship Officer.
2. In my experience and observations the vast majority of Mr Cawood's role has been and is as General Counsel and a lawyer for the Company.
3. Mr Cawood's role in relation to the matters involving Mr Vigors involved him acting in a legal capacity only. Mr Cawood's interactions with Mr Vigors were as McDonald's General Counsel, and his interactions with me (and other members of the legal team) were also in that role. That is, Mr Cawood was supervising me and other members of the legal team in our performance of the legal role, rather than requesting advice or otherwise engaging with the legal team as part of his role as Franchise Relationship Officer.

(g) In the Hardie Affidavit:[94]

1. I understood that Mr Cawood was acting as General Counsel on behalf of the Company in relation to Robert Vigors' proposed sale of his restaurants to Emma Burgess, the viral incident involving Robert Vigors (Viral Incident) and the sale of his restaurants to Leigh Colbert. I formed this understanding because of two matters. First, in my experience, when a problematic or controversial situation arises involving the Company, Mr Cawood is asked to provide (or arrange the provision of) legal advice to the Company. Secondly, my communications with Mr Cawood concerning Robert Vigors were solely for the purpose of Mr Cawood asking me to provide legal advice or prepare legal documentation.

65 It is important to bear in mind that McDonald's bears the onus of identifying the legal basis for the LPP claims, by establishing the facts from which the Court may determine that privilege is being properly claimed. That onus can be discharged by evidence of the circumstances and context in which the communication occurred, or by evidence as to the purpose of the person who made or procured the communication. It can also be discharged by reference to the nature of the communication, supported by argument or submissions.[95]

1. Mr Cawood has given evidence as the head of McDonald's legal team. He gives evidence about the scope of work done by his legal team, and of the work he did. Such evidence is relevant to both the purpose and the contextual circumstances in which the various communications the subject of privilege claims occurred. In my view, his evidence was relevant and properly admitted by Matthews AsJ.
2. Ms Napoli was the Deputy General Counsel for McDonald's. She reported to Mr Cawood. She deposes to her observations of the role Mr Cawood performed as Franchise Relationship Officer, and observed that she never saw Mr Vigors escalate any issues to Mr Cawood in that capacity. She observed generally that the majority of Mr Cawood's role has been as General Counsel. Significantly, she gives evidence of her interactions with Mr Cawood, noting that he supervised her in the performance of his legal role rather than as a part of his role as Franchise Relationship Officer. Such evidence of her interactions with Mr Cawood is direct evidence that is within her knowledge. It is relevant to the purpose for the various communications. It was properly admitted by Matthews AsJ. To the extent that Ms Napoli strayed into generalisations about Mr Cawood's role that were not based on her own direct interactions with him, Matthews AsJ noted that such evidence was of little weight.[96] I find no error in her Honour's decision to admit this evidence and then attribute it little weight. There is nothing in her reasons to suggest that she acted to the contrary.
3. At the relevant time, Ms Hardie was employed by McDonald's as Senior Legal Counsel, and reported to Ms Napoli. In her role, Ms Hardie would also speak regularly with Mr Cawood. By paragraph [6] of her affidavit, she first explains her understanding about the role performed by Mr Cawood in relation to Mr Vigors' proposed sale to Ms Burgess, the viral incident, and the subsequent sale of the restaurants to Mr Colbert. Ms Hardie explains the basis of her understanding by reference to two matters she directly observed involving Mr Cawood. I note that Matthews AsJ accepted her evidence insofar as she deposed to her own interactions with Mr Cawood, whilst observing that her other non-direct evidence had little weight. Again, I find no error in her Honour's admission of this evidence and her attribution of little weight to it. There is nothing in her Honour's reasons to suggest that she acted to the contrary.
4. Accordingly, this ground of appeal is dismissed.

J.2 Grounds 18 and 19 - Use of multiple affidavits

1. Appeal grounds 18 and 19 arise from order 2 of the Orders made by Attiwill J on 9 May 2022, which required McDonald's to file and serve:

a further affidavit of documents that makes discovery of any further documents and states sufficiently the grounds that any document is privileged from production ... including any documents the subject of any earlier affidavit of documents.

2. McDonald's subsequently filed and relied upon the following affidavits:

(a) the First Cawood Affidavit sworn on 14 June 2022, which contained the Cawood Schedule identifying all the documents over which McDonald's makes its substantive privilege claims on the basis of LPP; > > (b) the Second Cawood Affidavit sworn on 5 August 2022, which deposed to the admission dates of all members of McDonald's legal team including Ms Napoli and Ms Hardie, and the fact that they all held practicing certificates; > > (c) the Napoli Affidavit sworn on 21 September 2022, in which Ms Napoli deposed to her role, and provided her own LPP Schedule identifying the documents subject to LPP claims to which she was a party. I note that the same documents were already the subject of LPP claims made in the Cawood Schedule; > > (d) the Hardie Affidavit affirmed on 22 September 2002, in which Ms Hardie deposed to her role, and provided her own LPP Schedule of identifying the documents subject to LPP claims to which she was a party. Again, the same documents were already the subject of LPP claims in the Cawood Schedule; > > (e) the Third Cawood Affidavit sworn on 29 September 2022, which made corrections to the LPP claims in respect of two documents in the Cawood Schedule he had provided earlier; and > > (f) the Fourth Cawood Affidavit sworn on 11 October 2022, which made a claim for LPP over partly-privileged documents. This affidavit was filed after the hearing with Matthews AsJ pursuant to her Honour granting leave to do so.

1. In summary, the plaintiffs submitted to Matthews AsJ that:

(a) Attiwill J had allowed for one affidavit to be filed to sufficiently articulate all of the privilege claims so that the plaintiffs would 'not ... have to look at multiple documents'.[97] > > (b) What was of concern to the plaintiffs was 'whether or not there's a different articulation of the claim for privilege in these two affidavits [of Ms Hardie and Ms Napoli]'. To the extent that the Napoli and Hardie Affidavits attempted to recast the basis of the claims for privilege, they should not be admitted into evidence, as it would be unfair to do so at this late stage.[98] > > (c) It was not for the plaintiffs to show any prejudice. They had the two affidavits for only one week before the hearing with Matthews AsJ, so it could be inferred that they did not have sufficient time to properly deal with any differences in the privilege claims being recast.[99]

2. I note that the hearing before Matthews AsJ took place on 29 September 2022.
3. Her Honour considered that the basis for the privilege claimed over each document referred to in the affidavits of Ms Napoli and Ms Hardie remained the same as that articulated in the Cawood Schedule.[100] On that basis, she allowed McDonald's to rely on those affidavits. She did not accept that the plaintiffs were prejudiced by this. But in order to alleviate any prejudice they considered they may have suffered, she directed the plaintiffs to file short submissions in respect of any differences they perceived in how the privilege claims were made in the later affidavits. Her Honour said she considered this to be 'the most efficient way to deal with that issue'.[101]

1. The plaintiffs submit that Matthews AsJ should have disregarded the evidence filed across multiple affidavits because the Orders made by Attiwill J on 9 May 2022 required McDonald's claims for LPP to be sufficiently described in one singular document.
2. The plaintiffs also submit that they were denied natural justice as a result of this decision.[102] They contend that they suffered prejudice on the following basis:

(a) The Orders made by Attiwill J were made to ensure that the plaintiffs would know what specific grounds of LPP were being claimed by McDonald's. The plaintiffs prepared their case on the basis that these Orders would be complied with, and McDonald's failure to do so took them by surprise. McDonald's should have applied to have the Orders amended if they wished to rely on any evidence other than the First Cawood Affidavit.[103] > > (b) The Orders made by Matthews AsJ on 29 September 2022 (the date of the hearing before her Honour) provided a limited grant of leave for the plaintiffs to make submissions in relation to the affidavits of Ms Napoli and Ms Hardie (but not in relation to the further affidavits of Mr Cawood), and only insofar as the basis of the LPP claims in their affidavits differed to the LPP claims in the Cawood Schedule.[104]

1. McDonald's contends that the fact its evidence was contained in a number of affidavits, rather than a single document, does not provide a basis for overturning Matthews AsJ's reliance on them.

1. The decision of Matthews AsJ to allow McDonald's to rely on the additional affidavit material was a matter of discretion. I have not been able to identify any error on her part. Specifically, I am not persuaded that she proceeded on a wrong principle, allowed extraneous or irrelevant matters to guide her, misapprehended a material fact, failed to take into account a relevant factor, or took into account an irrelevant factor.[105]
2. Further, and as submitted by McDonald's:

(a) It is not clear what prejudice has been suffered from the use of multiple affidavits. Apart from the corrective Third Cawood Affidavit and the post-hearing Fourth Cawood Affidavit, all other affidavits were filed at least a week (or in the case of Mr Cawood's first two affidavits, some months) prior to the hearing before Matthews AsJ. The concern expressed by the plaintiffs to her Honour was the possibility that a different basis for the claim of privilege had been articulated. In response to that concern, Matthews AsJ allowed the plaintiffs to file short submissions after the hearing to address any differences in the LPP claims which the plaintiffs might have identified between the affidavits.[106] By that process, any prejudice said to arise was capable of being cured. > > (b) The filing of multiple affidavits arose in a context where, after the filing of the First Cawood Affidavit, the plaintiffs filed their summons challenging the LPP claims. McDonald's was entitled, in response to the summons, to put on such further evidence as it considered necessary to meet the issues in the summons.

3. Having regard to the circumstances in which the affidavits arose, and the absence of prejudice on the part of the plaintiffs, I find no error in Matthews AsJ relying on the multiple affidavits as she did.
4. For the same reasons, I do not consider that there was any denial of natural justice. In my view, her Honour gave the plaintiffs the opportunity to make further submissions post-hearing, and thereby cured any potential prejudice which may have arisen.
5. Accordingly, appeal grounds 18 and 19 are dismissed.

K Assessment of McDonald's LPP claims (appeal grounds 4 to 6, 8 to 10, 15 to 17, and 20)

1. The next series of appeal grounds address the alleged deficiencies in Matthews AsJ's assessment of McDonald's LPP claims. These appeal grounds have been separated from other grounds dealing with her Honour's treatment of the role of lawyers and the McDonald's legal team.

K.1 Ground 4 - Was there a sufficient basis to determine that the documents were created for the dominant purpose of providing legal advice?

1. Applying the decision in Hodgson v Amcor Ltd (No 2) ('Hodgson'),[107] Matthews AsJ rejected the plaintiffs' submissions that the LPP claims were not sufficiently articulated on the following basis:[108]

[133] In Hodgson v Amcor, Vickery J stated that: > > On the one hand the grounds of the privilege claimed must be sworn in terms which identify the legal basis upon which the claim is made and provide a sufficient description of the elements of the document relied upon to support the claim made on that basis. > > On the other hand, a claiming party cannot be compelled to provide such particularity as would compromise the very privilege that is claimed. It would defeat to [sic] object of the protection, and hence the public purpose which it seeks to advance, if the description required was such as to enable the other party to discover the contents or effect of the document, and thereby compromise its confidential status. > > [134] In my view, the Defendant has met the requirement in the first paragraph of the passage from Hodgson v Amcor cited in the previous paragraph. > > [135] In focusing on parts of the descriptions in the Privilege Schedules such as "proposed sale of the restaurants", the Plaintiffs have failed to take sufficient account of the balance of the descriptions in the Privilege Schedules and have not taken any account of what is deposed to in the body of the First Cawood Affidavit, the Napoli Affidavit, and the Hardie Affidavit. By way of example, Mr Cawood refers to the Defendant's legal team and its external solicitors providing legal advice to the Defendant around the proposed sale and the exercise of the right of refusal. In my view, that is a sufficient description so as to enable the Court to be satisfied as to the legal basis upon which the claim is made (ie for the dominant purpose of providing legal advice) and a sufficient description of the elements of the document relied upon to support that claim. > > [136] To require the Defendant to go further is to traverse into the very territory described in the second paragraph of the above cited passage from Hodgson v Amcor. > > [137] I do accept the Plaintiffs' submission that reviewing legal documentation in and of itself is not likely to be privileged, but reviewing documentation as part of providing legal advice may be. Although there were descriptions in the body of the Napoli and Hardie Affidavits (in particular) about reviewing or preparing legal documentation, as referred to above, the privilege claims in the Privilege Schedules all referred to provision of legal advice, rather than reviewing legal documentation. Consequently, the documents were capable of being privileged. > > [138] Otherwise, I do not accept the Plaintiffs' submissions ... > > (a) The Defendant does not simply label a document as privileged: it has set out the basis for the claim (ie the Advice Limb); and it has given evidence in general but sufficient terms as to the matters about which it was obtaining legal advice. > > (b) The Plaintiffs' contention that the description of the documents should set out the rights, liabilities, obligations or remedies of any party the documents relate to so as to be a proper articulation of the privilege claim is rejected. The Plaintiffs' submission in this regard misapplies Three Rivers Council ... It is only in cases of doubt as to whether the lawyer was performing a legal role where such matters need to be taken into account: this is not such a case, as I have already found. Having already found that the advice provided by the Defendant's in-house lawyers was provided by them in performance of their legal functions, no doubt arises. In any event, in the context of this case, to require the Defendant to set out the rights being advised about would be, as I have already said, to effectively reveal the content of the communication. > > [139] In my view, the descriptions of the privilege claims in the Privilege Schedules in respect of each of the documents over which privilege is claimed, together with the evidence provided in the bodies of the First Cawood Affidavit, the Napoli Affidavit and the Hardie Affidavit, are altogether sufficient to satisfy me that the documents are privileged, subject to whether I consider particular documents should be inspected and the outcome of that inspection.

1. The plaintiffs contend that Matthews AsJ erred in holding that there was a sufficient basis to determine that the documents were created for the dominant purpose of obtaining and giving legal advice. The plaintiffs say that the basis for McDonald's privilege claims have not been adequately articulated in the LPP Schedules.[109]
2. The plaintiffs submit that the LPP claims are deficient because:[110]

(a) they are described in a formulaic, repetitive manner that provides no assistance in determining the veracity of the privilege claims; > > (b) they are expressed in conclusionary terms, with no particulars of the topics to which the purported legal instructions or advice were directed; > > (c) they are expressed in such general terms that it is impossible to properly assess the privilege claim for each document; and > > (d) they do not contain a proper articulation of the topics to which the legal advice related, and/or the rights, liabilities or remedies of the client that the legal advice relates to.

1. McDonald's submits, in summary, that the plaintiffs' alleged deficiencies in the LPP Schedules fail to grapple with the fact that the First Cawood Affidavit (and the other affidavits relied on by McDonald's) contain information beyond the LPP Schedules which was properly taken into account by her Honour in assessing the LPP claims.

1. The grounds of the privilege claim must be sworn in terms which identify the legal basis upon which the claim is made, and provide a sufficient description of the elements of the document relied upon to support the claim, without going so far as to compromise the privilege that is claimed by exposing the confidential content of the document itself.[111]
2. McDonald's asserts that each document was a communication made for the dominant purpose of providing legal advice. Therefore, it carries the onus of proving that each communication was made predominantly for that purpose. In my view, McDonald's affidavit evidence as admitted by Matthews AsJ was sufficient to discharge that onus, and her Honour was not in error in reaching that conclusion.
3. Specifically, by its affidavit material, McDonald's adduces the following evidence going to the nature of each communication and the contextual circumstances in which they occurred:

(a) First, the parties to each communication. I note that a lawyer for McDonald's was a party to each communication. > > (b) Second, the date of each communication which, in every case, was consistent with the provision of legal advice around the time of: > > > (i) the proposed sale to Ms Burgess; > > > > (ii) the viral incident involving Mr Vigors; and/or > > > > (iii) the sale of the Mildura restaurants to Mr Colbert. > > (c) Third, the titles of each communication, which are again consistent with the provision of legal advice directly concerning these matters. > > (d) Fourth, the asserted dominant purpose of each document, being the provision of legal advice, together with the context for the advice (eg, 'for the dominant purpose of providing legal advice to McDonald's and enclosing a draft communication to Mr Vigors following the incident involving Mr Vigors').

4. Further, as submitted by McDonald's, there are no indications on the face of the LPP Schedules which support an inference that some non-legal purpose attended the documents.
5. I agree with the assessment of Matthews AsJ that to require McDonald's to go further would require them to compromise the very privilege that is being claimed.[112]
6. I find no error in her Honour's conclusion at paragraphs [135] and [139] that the contextual evidence in the bodies of each of the First Cawood Affidavit, Napoli Affidavit and Hardie Affidavit, in combination with the specific evidence concerning each individual document in the LPP Schedules, provided a sufficient basis to determine whether the documents were created for a predominantly privileged purpose.
7. This appeal ground is dismissed.

K.2 Ground 5 - Were the LPP claims sufficiently described in the First Cawood Affidavit?

1. The plaintiffs allege that Matthews AsJ erred by holding that the LPP claims were sufficiently described in the First Cawood Affidavit. They say that while the general context in which communications were made is important to enable the LPP claims to be properly construed, evidence of general context cannot be used to fill in gaps and is no substitute for providing a proper description of the LPP claims. That is, the deficiencies in McDonald's descriptions cannot be remedied by evidence of the surrounding context of the communications.[113]
2. Given Mr Cawood held multiple roles within McDonald's, the plaintiffs contend that it is impossible to discern from the surrounding context which documents may or may not have been subject to LPP. They say the context that Mr Cawood was performing a legal role cannot enlighten what specific work he was undertaking at various times, or whether he was providing legal advice as opposed to other non-legal services.[114]

1. McDonald's relies on its submissions in respect of appeal ground 4 above.
2. In addition, it contends that the careful balancing act recognised in Hodgson is relevant,[115] and was correctly applied by her Honour. Namely, it is necessary that McDonald's provide sufficient detail to support its LPP claim, but not such detail as to destroy or compromise the privilege being claimed. McDonald's submits that her Honour correctly weighed those matters in her Ruling,[116] such that no error arises.
3. Further, McDonald's says her Honour correctly recognised that the material in the bodies of each of McDonald's affidavits provided further contextual information and a sufficient description of documents to satisfy the Court as to the basis of the LPP claims.[117]

1. In my view, Matthews AsJ correctly recognised that the material before her provided a sufficient description of each communication to identify the legal basis upon which privilege was being claimed, and the elements of each document in support of those claims. I refer to and repeat my reasons in relation to appeal ground 4 above. Further, as submitted by McDonald's, I agree it is apparent from her Honour's reasons that she correctly applied the test from Hodgson and carefully weighed the relevant matters to reach her conclusion that the descriptions were sufficient. I therefore find no error in her conclusion.
2. This appeal ground is dismissed.

K.3 Ground 6 - Did the primary judge err in determining the LPP claims globally?

1. The plaintiffs contend that Matthews AsJ erred by determining the claims for LPP globally for multiple documents, instead of determining whether LPP applied separately for each document. They specifically refer to paragraphs [135] and [137] of the Ruling.
2. The plaintiffs refer to r 29.04(1)(b) of the SC Rules, which requires that an 'affidavit of documents for the purpose of making discovery ... shall ... describe each document or, in the case of a group of documents of the same nature, shall describe the group, sufficiently to enable the document or group to be identified'. They also cite authority that the 'evidence must reveal the relevant characteristics of each document in respect of which privilege is claimed, and must do so by admissible direct evidence, not hearsay'.[118]

1. McDonald's submits that no such global determination was made by Matthews AsJ. It says that on a fair reading of the Ruling, it is apparent that her Honour:

(a) considered and gave weight to the factual context in which the relevant communications were made;[119] > > (b) considered and gave weight to the information contained in the LPP Schedules;[120] > > (c) inspected a number of the partly-privileged documents;[121] > > (d) inspected a number of the privileged documents,[122] aided by a case-by-case submission as to why each document was subject to LPP; and > > (e) addressed some of the criticisms made by the plaintiffs in respect of specific documents.[123]

2. McDonald's submits it is therefore wrong to characterise the careful analysis undertaken by her Honour as some type of 'global' assessment. Rather, it says the converse is apparent as her Honour reviewed each LPP claim, and inspected documents where she considered it necessary to do so (out of an abundance of caution).

1. I agree with McDonald's submissions, as set out in paragraphs [104] and [105] above.
2. By paragraph [135] of her Ruling, Matthews AsJ concluded that the affidavit materials provided descriptions that were sufficient to enable her to assess the claims for privilege. She set out her further conclusion in relation to the claims for LPP at paragraph [139] stating:

... In my view, the descriptions of the privilege claims in the Privilege Schedules in respect of each of the documents over which privilege is claimed, together with the evidence provided in the bodies of the First Cawood Affidavit, the Napoli Affidavit and the Hardie Affidavit, are altogether sufficient to satisfy me that the documents are privileged, subject to whether I consider particular documents should be inspected and the outcome of that inspection.

3. There is no basis from her Honour's reasons to draw the conclusion that she determined the LPP claims using a global approach. It is evident that her Honour assessed whether each document attracted privilege based on the individual descriptions in the LPP Schedules, in conjunction with the general contextual evidence provided in the bodies of McDonald's affidavits.
4. Accordingly, this appeal ground is dismissed.

K.4 Ground 8 - Did the primary judge fail to make any necessary findings as to whether the documents were confidential (ground 8)?

1. The plaintiffs contend that Matthews AsJ failed to make necessary findings about whether certain documents were confidential and could therefore attract LPP. They submit that:

(a) Documents 9, 10 and 15 of the Cawood Schedule are internal memoranda which are not addressed to any specific person at McDonald's. There is no basis for McDonald's to assert that any legal advice was provided without there being specific named persons to provide the advice to, or evidence that these documents were being treated as confidential. There is no evidence of the persons who could access these documents, or any measures taken to protect the confidentiality of these documents. > > (b) In respect of Document 154 of the Cawood Schedule (being an email to Vanessa Magee containing text messages involving Mr Cawood), the communications recorded within this document are between non-lawyers, and any LPP has been waived by virtue of the communications being provided to non-lawyers and not being treated as confidential. > > (c) The McDonald's employee who is the recipient of alleged legal advice is not identified in Documents 103 and 105 of the Cawood Schedule.

1. In respect of the above claims, McDonald's submits that:

(a) Documents 9, 10 and 15 were inspected by Matthews AsJ, who noted that the description of the documents was sufficient to identify the basis of the privilege claimed over each of these documents.[124] > > (b) The plaintiffs erroneously claim that the communications recorded in Document 154 are 'between non-lawyers', and that confidentiality has not been maintained over them, because: > > > (i) first, the recipient of the document was Vanessa Magee, who is a McDonald's lawyer;[125] > > > > (ii) second, the description of this document states that it is an email which contains text messages between Mr Cawood (a lawyer) and a McDonald's employee. Hence, it was open to Matthews AsJ to conclude that they were confidential to McDonald's; and > > > > (iii) third, there is no suggestion that the text messages (or the email) have been circulated outside of McDonald's in a way which might destroy confidentiality. > > (c) In respect of Documents 103 and 105, the plaintiffs are wrong to say that the description fails to identify the McDonald's employee who received the relevant legal advice, given: > > > (i) the 'to' column for each description in the LPP Schedules identifies a McDonald's employee; and > > > > (ii) in any event, it is not apparent how any failure to identify a recipient by name might mean that a communication was not confidential.

1. In respect of Documents 9, 10 and 15 of the Cawood Schedule, Ms Hardie deposed to the purpose of these documents in her LPP Schedule. She deposed that each was an 'internal memorandum prepared by [her]', and she identified them as being created 'for the dominant purpose of providing legal advice to McDonald's in relation to the transfer of the restaurants to Mr Colbert'.[126]
2. At paragraph [177] of her Ruling, Matthews AsJ recorded the plaintiffs' complaint that the description of Document 9 was insufficient because the intended recipient of the memorandum was not identified such that 'one could not be certain that confidentiality was maintained'. While she considered this criticism misplaced, she still inspected the document out of an abundance of caution, and was then satisfied that it was privileged. She concluded that as Documents 10 and 15 are described in identical terms, the same finding applies to them. I can find no error of fact, law or the exercise of discretion made by her Honour in relation to her assessment of these documents.
3. In respect of Document 154 of the Cawood Schedule, the plaintiffs' assertion that the communications in this email were between non-lawyers is factually incorrect. Based on the document's description, the recipient of this email, Ms McGee, was a lawyer working in McDonald's legal team at the relevant time,[127] who is currently on parental leave from the company.[128]
4. In respect of Documents 103 and 105 of the Cawood Schedule, the plaintiffs' assertion that the recipient of the legal advice was not identified is incorrect. In both cases, the LPP Schedules identified the recipient of the communication.
5. This appeal ground is therefore dismissed.

K.5 Ground 9 - Did the primary judge fail to consider whether documents were created for multiple purposes?

1. The plaintiffs identify certain documents they claim were created for multiple purposes, and allege that Matthews AsJ failed to consider whether the dominant purpose of these documents was for the provision of legal advice:

(a) The plaintiffs identify Documents 152, 153 and 159 of the Cawood Schedule, which are described as emails enclosing 'draft media statements'. They submit that these draft media statements were created for public relations purposes, and the mere fact they were forwarded to lawyers for review did not make them privileged. As the draft media statements were also sent to non-lawyers, this shows there were multiple purposes for these emails.[129] > > (b) The plaintiffs take issue with the documents containing commercial terms created by a non-lawyer, Mr Bhatti, which were sent to Ms Hardie for her to review, provide legal advice, and then prepare legal documentation. These documents created by Mr Bhatti were referred to by her Honour at paragraphs [185] to [186] of the Ruling, where she stated:[130] > > [185] The Plaintiffs submit that with respect to paragraph [9] of the Hardie Affidavit, if it is the case that commercial terms were inserted into template documents by Mr Bhatti, it would be unlikely that those documents are subject to legal professional privilege. Accordingly, any documents created by Mr Bhatti are simply not privileged. > > [186] I reject this submission. Ms Hardie deposes that Mr Bhatti sent such documents to her for her review and for her to provide any legal advice. The copy of the document sent by Mr Bhatti to Ms Hardie for that purpose is clearly privileged.

(c) Further, the plaintiffs contend that at least some of the legal documentation prepared by Ms Hardie had multiple purposes,[131] and there is no evidence as to what their dominant purpose was. They also say that Ms Hardie did not depose to providing legal advice in relation to the viral incident.[132]

1. The plaintiffs submit that Matthews AsJ should have considered that there were multiple purposes for the creation of the above documents, and therefore should have held that McDonald's had not discharged its onus of proving that the dominant purpose was for the provision of legal advice.[133]

1. McDonald's submits that the plaintiffs' position misunderstands the fact that LPP attaches to communications, rather than documents. It contends that the fact the documents in question were forwarded to lawyers for review gives rise to the inference that they were privileged communications attracting LPP.

1. Documents 152, 153 and 159 are communications which are described in the Cawood Schedule as being emails enclosing the draft media statements 'sent for the dominant purpose of providing legal advice to McDonald's in relation to the incident involving Mr Vigors'. That asserted dominant purpose is supported by further contextual evidence about the timing of the communications in the aftermath of the viral incident. In my view, it was open to conclude on the basis of this evidence that these communications (including the copies of draft media statements enclosed within) satisfied the dominant purpose test. I find no error in Matthews AsJ's conclusion that those communications were privileged.
2. In respect of the documents created by Mr Bhatti, it appears that the plaintiffs' complaints are directed toward Documents 81 and 111 of the Cawood Schedule. Those communications to Ms Hardie are variously described as emails 'requesting legal advice', and 'providing instructions' for the dominant purpose of obtaining legal advice for McDonald's in relation to the transfer of the Mildura restaurants to Mr Colbert. Matthews AsJ noted Ms Hardie's direct evidence that these documents were sent to her so she could review them for the purpose of providing legal advice about them. Those documents attached to Mr Bhatti's communications were therefore capable of attracting LPP, provided they were brought into existence for the dominant purpose of providing legal advice.[134] It is clear from paragraph [186] of the Ruling that her Honour was satisfied on the evidence that those communications were created for the dominant purpose of Ms Hardie providing legal advice. Again, that dominant purpose is supported by contextual evidence about the timing of the communications. I am unable to find error in Matthews AsJ's conclusion that these communications and their attachments are privileged.
3. With respect to the plaintiff's contention that legal documents prepared by Ms Hardie had multiple purposes, Matthews AsJ noted that the descriptions of the communications in the LPP Schedules all specifically link the communications to the provision of legal advice. This satisfied her Honour that that the communications were capable of being privileged.[135] I can find no error in this reasoning. The plaintiffs' submission that Ms Hardie did not depose to providing legal advice regarding the viral incident is plainly wrong. In addition to all the specific references to Ms Hardie providing legal advice in her LPP Schedule, in the body of her affidavit, Ms Hardie identified how the legal advice she gave directly concerned Mr Vigors and the viral incident as follows (my emphasis added):[136]

[6] ... my communications with Mr Cawood concerning Robert Vigors were solely for the purpose of Mr Cawood asking me to provide legal advice or prepare legal documentation. > > ... > > [9] With respect to Mr Vigors' situation ... Mr Bhatti would ... send the documents to me to review, for me to provide any legal advice and then I would prepare the legal documentation

K.6 Ground 10 - Did the primary judge err by finding that some of the communications between non-lawyers were subject to LPP?

1. The plaintiffs submit that Matthews AsJ erred in holding that some documents which recorded communications between non-lawyers were privileged. They rely on their submissions above.
2. Specifically, they take issue with Document 155 of the Cawood Schedule. They say this email sent by a non-lawyer to both Ms Dakin and Ms Magee cannot be subject to LPP because it is a communication between non-lawyers.[137]

1. In respect of Document 155 (which the plaintiffs say does not involve any lawyers), McDonald's notes that both Ms Dakin and Ms Magee are McDonald's lawyers.[138]
2. McDonald's otherwise relies on its submissions above, and says the plaintiffs' submissions do not amplify this appeal ground.

1. This ground of appeal depends on the plaintiffs identifying a communication between non-lawyers over which McDonald's claims privilege. However, as is readily apparent from the preamble to each of the LPP Schedules,[139] as well as the columns identifying the parties to each communication, every item listed in the LPP Schedules is a communication that was sent or received by at least one lawyer, including Document 155.
2. Accordingly, this appeal ground is dismissed.

K.7 Ground 15 - Did the primary judge give excessive weight to affidavit evidence as to the subjective purpose for which documents were created?

1. The plaintiffs say Matthews AsJ erred by giving excessive weight to the evidence of McDonald's witnesses regarding the subjective purpose for the creation of documents. They submit:

(a) Her Honour accepted the affidavit evidence of Mr Cawood, Ms Napoli and Ms Hardie at face value without reducing their evidential weight at all.[140] > > (b) Her Honour did not discount Mr Cawood's evidence on the basis that the plaintiff was refused leave to cross-examine him.[141] Her Honour noted:[142] > > The Plaintiffs objected to aspects of each of the First Cawood Affidavit, the Napoli Affidavit and the Hardie Affidavit. I ruled that the matters raised would be taken into account when I considered whether to accept or reject these aspects of their evidence.

(c) Her Honour did not discount the evidence of Mr Cawood on the basis it contained non-direct or hearsay evidence.[143] She stated:[144]

To the extent that it is non-direct or hearsay in respect of the purpose of any particular document, at most that goes to weight rather than admissibility.

(d) Accordingly, the plaintiffs submit that her Honour erroneously gave full weight to the evidence of each of McDonald's witnesses by accepting everything they deposed to.[145] They specifically refer to paragraphs [94(a)], [98], [104] and [116] of the Ruling as instances where her Honour erred in this way .[146]

1. McDonald's submit that the Ruling reveals her Honour considered many objective matters in making her assessment of the LPP claims, including the context of the communications, the roles of relevant participants in the communications, and some of the communications themselves.

1. The weight given to evidence is a matter of discretion. There is a strong presumption in favour of the correctness of a discretionary decision, and an appellate court needs to be persuaded that the decision stands outside the limits of sound discretionary judgment before it can intervene.[147] In this case, I am not so persuaded.
2. From her Ruling, it is clear that Matthews AsJ understood that:

(a) the dominant purpose of the communications must be determined objectively, having regard to the evidence, the nature of the document, and submissions;[148] and > > (b) subjective evidence is relevant, but not conclusive, for determining the communication's dominant purpose.[149]

3. Each of McDonald's witnesses deposed to the purpose of communications they were directly involved in. Her Honour expressed clearly that where the deponents strayed into generalisations not based on their own direct knowledge, those parts of their evidence would be given little weight.[150] There is nothing in her Honour's reasons to suggest that she acted to the contrary by giving weight to that indirect evidence.
4. It is apparent from her reasons that in reaching her decision, Matthews AsJ considered the objective evidence that was relevant to determining the purpose of the communications, including:

(c) the context of the communications; > > (d) the parties to the communications; and > > (e) the timing of the communications coinciding with the Relevant Events.

5. In the circumstances described in paragraphs [133] to [135] above, I am not persuaded that Matthews AsJ gave excessive weight to the affidavit evidence of the subjective purpose for which communications were made. I therefore find no error in the exercise of her discretion. This appeal ground is dismissed.

K.8 Ground 16 - Did the primary judge err in finding that the general surrounding context was relevant for determining whether the LPP claims were sufficiently described?

1. The plaintiffs submit that Matthews AsJ erred by holding that the general context in which documents were created was relevant for determining whether the LPP claims were sufficiently described. The plaintiffs contend that general evidence of surrounding context is not relevant to this particular assessment, because the surrounding circumstances are not linked to any one specific document over which McDonald's claims LPP.[151]

1. The plaintiffs' contention is contrary to authority.[152] Their contention is also contrary to their own submissions, where they stated (my emphasis added):[153]

The Defendant's reference to the general context in which the communications were made is important to enable the claim for LPP to be properly construed, but it is no substitute for providing a proper description in the claim for LPP.

K.9 Ground 17 - Did the primary judge err in finding that the claim for LPP was sufficiently described?

1. The plaintiffs submit that her Honour erred in holding that the LPP claims were sufficiently described.

1. Matthews AsJ correctly recognised that the material before her provided a sufficient description of each communication to identify the legal basis upon which LPP was claimed, and the elements of each document in support of those claims. I refer to and repeat my reasons in relation to appeal ground 4 above.
2. This appeal ground is dismissed.

K.10 Ground 20 - Did the primary judge err by inspecting selected documents for the purpose of determining the LPP claims?

1. The plaintiffs abandoned this appeal ground during the hearing before me.[154]

L Treatment of Mr Cawood's role, and the role of McDonald's lawyers generally (appeal grounds 7, and 11 to 14)

1. The final subset of appeal grounds concern findings made by Matthews AsJ about the role of Mr Cawood, and the role of McDonald's lawyers generally.

L.1 Ground 7 - Did the primary judge err by holding that it would be sufficient for an LPP claim if a lawyer was included in an email chain?

1. In relation to the documents exhibited to the Second Stanarevic Affidavit which were said by the plaintiffs to seemingly show that Mr Cawood and Ms Napoli were acting in a non-legal capacity, Matthews AsJ held in her Ruling that:[155]

[95] Insofar as these documents are concerned generally, I do not accept the Plaintiffs' submission that these demonstrate Mr Cawood was performing a non-legal role. That Mr Cawood was copied into correspondence over which privilege is not claimed may simply be a result of him being kept informed of events as they unfolded so that he was in a position to provide legal advice. If that was the purpose of him being copied, then that may well mean that a purpose of the documents was for legal advice but it does not mean that was the dominant purpose, and so is therefore not privileged. There is simply nothing on the face of those documents to suggest that Mr Cawood was performing a non-legal role in respect of the subject matters.

1. The plaintiffs contend that the effect of Matthews AsJ's reasoning was to erroneously find that any document would attract LPP once a lawyer was included in an email chain.
2. The plaintiffs submit that:[156]

(a) at paragraph [78] of the Ruling, her Honour initially considered that there was a distinction between the legal role Mr Cawood held and whether he was providing legal advice; > > (b) however, this distinction was later disregarded at paragraph [95] of the Ruling.

3. Further, the plaintiffs say her Honour's conclusion that legal advice could have been provided without evidence of a request was wrong because this was speculative, and there was no evidence that any verbal requests had been made. As such, they say her Honour erred in stating at paragraph [169] of the Ruling:[157]

I do not accept the proposition ... that the absence of a document containing a request for legal advice means that the advice was not privileged. A request could have been made verbally or could have been part of a series of communications about the same issue.

1. McDonald's submits that Matthews AsJ made no such finding to the effect that LPP is established merely if a lawyer is included in an email chain. The relevant finding made at paragraph [95] of the Ruling was to reject the plaintiffs' submission that Mr Cawood being copied to an email demonstrated he was performing a non-legal role.
2. McDonald's says her Honour properly recognised that Mr Cawood may have been copied into an email as part of his legal role, but also recognised that the mere fact of copying him into an email (even if for a legal purpose) did not necessarily mean that the dominant purpose of the email was one which attracted LPP. It is clear her Honour was aware of the possibility that a lawyer, and in particular in-house counsel, might perform legal and non-legal roles. And whilst being conscious of that distinction, her Honour concluded that Mr Cawood acted solely in a legal capacity.[158]

1. Matthews AsJ did not find that it would be sufficient for an LPP claim if a lawyer was included in an email chain. To the contrary, her Ruling expressly recognised that this alone would not be sufficient.[159]
2. Further, I reject the plaintiffs' submission that Matthews AsJ erred by concluding that legal advice could have been provided without evidence of a request. The task before her Honour was to assess each claim of privilege over the identified communications based on the evidence before her. Evidence of a request for legal advice may well be relevant, but the presence or absence of such a request is not determinative. It is clear from her Honour's reasons that she was satisfied by the totality of the specific and contextual evidence that each communication was made for the dominant purpose of the provision of legal advice.[160]
3. Again, I consider the plaintiffs have not established any error in respect of Matthews AsJ's decision. This appeal ground is dismissed.

L.2 Ground 11 - Did the primary judge err by holding that some of the documents routed through to a lawyer attracted LPP?

(a) her Honour erroneously proceeded on the premise that LPP claims will be sufficiently established if a lawyer is included in an email chain or is one of the recipients to an email; and > > (b) '... if non-legal advices are provided to a client who then chooses to provide them to its lawyers, that does not clothe the original non-legal advices with privilege ... Generally, privilege does not extend to non-legal advices to the client simply because they are at the same time or later "routed" to a legal adviser'.[161]

2. The plaintiffs specifically refer to the following items in the Cawood Schedule:[162]

(a) Document 1 which is described as an email forwarding another email sent to a McDonald's lawyer for the dominant purpose of requesting legal advice; > > (b) Document 17 which is described as the email that was forwarded on in the email that is Document 1; and > > (c) all of the email chains in Documents 93, 95, 98, 99, and 101. The plaintiffs say these email chains cannot be subject to LPP because they include emails from a non-lawyer which are not the subject of a claim for LPP.

1. McDonald's relies on its submissions above in respect of ground 7.
2. Further, it says the plaintiffs fail to recognise that LPP applies to communications, and in that respect, a request for legal advice to a lawyer which forwards a non-privileged communication can attract LPP (albeit there may be a non-privileged copy of the original communication). McDonald's has never contended that an original non-privileged communication can be transformed into a privileged communication by its subsequent provision to a lawyer.
3. In respect of the particular documents identified by the plaintiffs, McDonald's says:

(a) Documents 1 and 17 were sent to a McDonald's lawyer, Ms Napoli, for the dominant purpose of requesting legal advice. Those communications are therefore privileged; and > > (b) Documents 93, 95, 98, 99 and 101 all involve exchanges between McDonald's lawyers (Ms Napoli or Ms Hardie) and McDonald's employees for the dominant purpose of providing legal advice. Those communications are therefore privileged.

1. I refer to and repeat my reasons above in respect of appeal ground 7. Her Honour's Ruling did not contain a finding that documents routed through to a lawyer automatically attracted LPP.
2. Further, I reject the plaintiffs' submissions in relation to Documents 1, 17, 93, 95, 98, 99 and 101. As submitted by McDonald's, LPP applies to communications. Each document is described as a communication made for the dominant purpose of the provision of legal advice. As previously stated, her Honour found that the contextual evidence in combination with the specific evidence concerning each document provided a sufficient basis to determine whether the documents were created for a predominantly privileged purpose. I find no error on the part of Matthews AsJ in determining that these specific documents were privileged.
3. This appeal ground is dismissed

L.3 Ground 12 - Did the primary judge err by failing to give any weight to Mr Cawood being a director and having a non-legal role within McDonald's?

1. The plaintiffs contend that Matthews AsJ failed to give any weight to the fact that Mr Cawood was a director of McDonald's and held a non-legal role within the company alongside his legal role as General Counsel.
2. In summary, the plaintiffs submit that:[163]

(a) While LPP may apply to communications between a client and their in-house lawyers, it is not presumed to apply, and its application will depend on the circumstances.[164] > > (b) In order to attract privilege, 'the legal adviser should have an appropriate degree of independence so as to ensure that the protection of legal professional privilege is not conferred too widely'.[165] > > (c) While privilege ought not be denied simply on the basis of some commercial involvement, nonetheless, for the Court to be satisfied that a document is privileged, it must be satisfied that the lawyer was acting in a legal context or role when preparing the document or making the communication in question.[166] > > (d) The independence of in-house counsel is, at the very least, a relevant consideration in determining whether there is a relationship of lawyer and client, or whether the communication was made for the dominant purpose of providing professional legal services. > > (e) The evidence in relation to McDonald's in-house lawyers is limited and provides no assistance to the Court. The evidence is merely that the in-house lawyers held practising certificates at the relevant time. > > (f) There is no evidence of the professional independence of the in-house solicitors. > > (g) Mr Cawood could not be regarded as being professionally independent or acting solely in a professional context of solicitor and client, due to his obligations to McDonald's as a company director arising under the Corporations Act 2001 (Cth). > > (h) As such, her Honour should have disallowed the LPP claims on the basis of the lack of professional independence of McDonald's in-house solicitors.

(a) Her Honour was aware that Mr Cawood was a director of McDonald's, and had a non-legal role in addition to his role as General Counsel.[167] > > (b) Her Honour was informed by Mr Cawood's evidence about his role in respect of events relevant to the proceeding, and the evidence of other McDonald's lawyers about their dealings with Mr Cawood.[168] > > (c) Her Honour considered, but rejected, the plaintiffs' submissions about Mr Cawood's alleged non-legal role.[169] Her Honour's analysis involved the weighing of competing submissions, and consideration of the evidence (including in respect of particular documents). > > (d) Her Honour was also cognisant of the principles relating to in-house counsel.[170] > > (e) The Ruling reveals no error in Matthews AsJ's approach. The plaintiffs' suggestion that there was 'no evidence of the professional independence of the in-house solicitors' ignores the evidence given by Mr Cawood, Ms Napoli and Ms Hardie about their respective roles in the relevant events, which establishes that the McDonald's legal team was acting in a legal capacity throughout that period. > > (f) Accordingly, the plaintiffs have not identified an error capable of impeaching her Honour's ultimate conclusion.

1. In light of the following circumstances, I am not satisfied that her Honour failed to give any weight to Mr Cawood having a non-legal role:

(a) Her Honour acknowledged that Mr Cawood held multiple roles within McDonald's.[171] > > (b) She had regard to the evidence of Mr Cawood, Ms Napoli and Ms Hardie about Mr Cawood's involvement in the matters the subject of the dispute between the parties.[172] > > (c) She had regard to the evidence of Ms Cables (one of the plaintiffs' witnesses) about Mr Cawood's interactions with her between around November 2016 and January 2017;[173] > > (d) Her Honour then set out her assessment of all the parties' evidence about Mr Cawood's role in respect of his involvement in the Relevant Events, noting her assessment of the evidence's weight and probative value.[174] > > (e) At paragraph [100] of the Ruling, her Honour expressed her conclusion that she was 'satisfied on the evidence that the in-house lawyers were acting in a legal role when involved in the subject matters, such that if the dominant purpose test is met and confidentiality is maintained, their communications are capable of being privileged'.[175]

2. In any event, in order for Matthews AsJ to be satisfied that a document was privileged, she had to be satisfied that the lawyer was acting in a legal context or role when the communication in question was made.[176] From her reasons, it is apparent that she identified this was the necessary enquiry, and then made positive findings of fact that the lawyers were acting in a legal capacity. I find no error in her approach or her conclusion.
3. Accordingly, this appeal ground is dismissed.

L.4 Ground 13 - Did the primary judge err by holding that some documents which involved the creation and review of legal documentation attracted LPP?

1. The plaintiffs submit that her Honour erred in holding that some of the documents which involved the creation of and review of legal documentation were privileged.[177]

1. McDonald's relies on its submissions above, and further submits that:

(a) The plaintiffs' submissions do not otherwise amplify this appeal ground. > > (b) As a matter of law, the creation or review of legal documentation may give rise to a claim for LPP, because such documentation might be created or reviewed in the course of giving legal advice, and may thereby attract LPP if the documentation satisfies the dominant purpose test.

1. As observed by her Honour at paragraph [137] of the Ruling:

... Although there were descriptions in the body of the Napoli and Hardie Affidavits (in particular) about reviewing or preparing legal documentation, as referred to above, the privilege claims in the [LPP] Schedules all referred to provision of legal advice, rather than reviewing legal documentation. Consequently, the documents were capable of being privileged.

2. I agree with her Honour's conclusion and find no error. This appeal ground is dismissed.

L.5 Ground 14 - Did the primary judge err by holding that some documents which involved arranging for the provision of legal advice were subject to LPP?

1. The plaintiffs submit that her Honour erred in holding that some documents which involved arranging for the provision of legal advice were privileged.[178]

(a) The plaintiffs' submissions do not identify which documents are said to involve arranging for the provision of legal advice, and do not otherwise amplify this appeal ground. > > (b) Further, as a matter of principle, a document which arranges for the provision of legal advice is capable of satisfying the dominant purpose test.

1. From the plaintiffs' submissions, it is not clear to me:

(a) on what basis it is said that communications arranging for the provision of legal advice are not privileged; and > > (b) which documents are said to be the subject of this ground of appeal.

2. I again refer to paragraph [137] of the Ruling and reiterate my agreement with her Honour's conclusion that all documents in the LPP Schedules are capable of being privileged. This appeal ground is therefore dismissed.

1. As I have been unable to find error of the requisite kind in Matthews AsJ's decision, I find that the appeal must fail.

1. For the reasons above, I will order that the appeal is dismissed.
2. I will hear from the parties as to the form of order and costs.

[1] Her Honour was appointed as a Judge of the Supreme Court of Victoria on 14 June 2023.

[2] Quebani Pty Ltd & Anor v McDonald's Australia Limited [2023] VSC 16 ('Ruling').

[3] The plaintiffs' application was made by summons dated 29 July 2022, which was amended on 3 October 2022.

[4] Ruling (n 2) [6]-[10] (Matthews AsJ).

[5] Ibid [29]-[39], [48]-[61], [64]-[66] (Matthews AsJ).

[7] Mr Cawood's evidence is outlined at Ruling (n 2) [22]-[39], [64]-[66] (Matthews AsJ).

[8] First Cawood Affidavit [7]-[8], cited at Ruling (n 2) [24] (Matthews AsJ).

[10] Ibid [17]-[18], cited at Ruling (n 2) [34]-[35] (Matthews AsJ).

[12] Fourth Cawood Affidavit [3]-[4], cited at Ruling (n 2) [65] (Matthews AsJ).

[13] Napoli Affidavit [12], cited at Ruling (n 2) [51] (Matthews AsJ).

[14] Ibid [10]-[15], summarised at Ruling (n 2) [48]-[53] (Matthews AsJ).

[15] Hardie Affidavit [3]-[5], cited at Ruling (n 2) [55]-[56] (Matthews AsJ).

[16] Ibid [6]-[9], summarised at Ruling (n 2) [57]-[60] (Matthews AsJ).

[17] Ibid [7], cited at Ruling (n 2) [58] (Matthews AsJ).

[18] Ibid [8], cited at Ruling (n 2) [59] (Matthews AsJ).

[19] Ibid [9], cited at Ruling (n 2) [60] (Matthews AsJ).

[20] First Stanarevic Affidavit [3], cited at Ruling (n 2) [41] (Matthews AsJ).

[21] Second Stanarevic Affidavit [3].

[22] Cables Affidavit [1], [3], [6], [10], [12], [16]-[17], summarised at Ruling (n 2) [43]-[47] (Matthews AsJ).

[23] Ruling (n 2) [98] (Matthews AsJ).

[27] See Ruling (n 2) [176]-[178] (Matthews AsJ).

[28] [2013] VSC 355, [11] (Ferguson J) ('Oswal'). This principle has been applied with approval many times: see eg, Andrianakis v Uber Technologies; Taxi Apps Pty Ltd v Uber Technologies (Appeal) [2022] VSC 643, [36] (John Dixon J).

[29] [2022] VSC 199 ('IPO Wealth').

[30] Ibid [54]-[59] (Elliott J) (citations omitted).

[31] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, [17]-[20] (Gleeson CJ, Gaudron, Gummow and Callinan JJ).

[32] [2016] VSC 311.

[33] Ibid [47] (Elliott J) (citations omitted).

[34] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 501 (Brennan CJ, Gaudron, McHugh, Gummow and Kirby JJ) ('Propend').

[35] Cargill Aust Ltd v Viterra Malt Pty Ltd (No 8) [2018] VSC 193, [32]-[36] (Macaulay J); Kamasaee v Commonwealth (No 2) (LPP Ruling) [2016] VSC 404, [43]-[47] (Macaulay J); Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853, [19(3)], [20] (Thawley J).

[36] AWB v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30, [44(1)] (Young J) ('AWB').

[37] See eg, Andrianakis v Uber Technologies Incorporated [2022] VSC 196, [68] (Matthews AsJ) ('Andrianakis').

[39] Kennedy v Wallace [2004] FCAFC 337; (2004) 213 ALR 108, [23]-[27] (Black CJ and Emmett J).

[40] Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49, [52] (Gleeson CJ, Gaudron and Gummow JJ). See also AWB (n 36) [44(12)] (Young J).

[41] Transcript of Proceeding, Quebani Pty Ltd & Anor v McDonald's Australia Limited (Supreme Court of Victoria, Matthews AsJ, 29 September 2022) 25.3-9 ('Transcript of Ruling').

[44] See Ruling (n 2) [15] (Matthews AsJ).

[45] Matthews AsJ provided ex tempore oral reasons for this decision at Transcript of Ruling (n 41) 31.08-34.29.

[46] Transcript of Ruling (n 41) 32.15-33.09.

[49] Ren v Jiang [2014] NSWCA 1, [12]-[13] (Leeming JA) ('Ren').

[50] ASIC v Macks [2018] SASR 132, [31] (Doyle J).

[51] ABL Nominees Pty Ltd v MacKenzie (No 2) [2014] VSC 529, [48] (Derham AsJ) (citations omitted) ('ABL Nominees').

[52] Ibid [49] (Derham AsJ) (some citations omitted).

[53] [2000] VSC 113; (2000) 1 VR 92, [18] (Warren J) ('Yunghanns').

[54] J Levine, 'Outline of submissions', Submissions in Quebani Pty Ltd v McDonald's Australia Limited (Appeal), S ECI 2021 01395, 13 March 2023, [5] ('Plaintiffs' Primary Written Submissions').

[55] Ruling (n 2) [52] (Matthews AsJ); Plaintiffs' Primary Written Submissions (n 54) [6].

[56] Plaintiffs' Primary Written Submissions (n54) [8]-[9], [17].

[57] Mr Martinez was a Market Director of McDonald's at this time.

[58] Referred to at Ruling (n 2) [63(a)], [94(a)] (Matthews AsJ).

[59] J Levine, 'Outline of submissions in reply', Submissions in Quebani Pty Ltd v McDonald's Australia Limited (Appeal), S ECI 2021 01395, 6 April 2023, [6] ('Plaintiffs' Written Reply Submissions').

[61] Ibid [7], referring to Ruling (n 2) [43]-[47] (Matthews AsJ).

[62] Plaintiffs' Primary Written Submissions (n 54) [13].

[64] Ibid [15]-[18]; J Levine, 'Reply submissions', Submissions in Quebani Pty Ltd v McDonald's Australia Limited (Appeal), S ECI 2021 01395, 28 April 2023, [6] ('Plaintiffs' Further Written Reply Submissions'). The plaintiffs were granted leave to file these further submissions following the appeal hearing on 27 April 2023.

[65] Oswal (n 28) [11] (Ferguson J), citing Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ).

[66] R Craig and M Tehan, 'Outline of submissions of the defendant', Submissions in Quebani Pty Ltd v McDonald's Australia Limited (Appeal), S ECI 2021 01395, 31 March 2023, [34] ('McDonald's Written Submissions').

[68] Oswal (n 28) [11] (Ferguson J); IPO Wealth (n 30) [54]-[59] (Elliott J).

[69] IPO Wealth (n 30) [54], [57] (Elliott J), citing House v R (1936) 55 CLR 499, 504-5 (Starke, Dixon, Evatt and McTiernan JJ).

[70] Transcript of Ruling (n 41) 34.01-19.

[72] Plaintiffs' Written Reply Submissions (n 59) [5]; McDonald's Written Submissions (n 66) [36(a)].

[73] Transcript of Ruling (n 41) 28.12-24.

[74] Ren (n 49) [12]-[13] (Leeming JA).

[75] ABL Nominees (n 51) [49] (Derham AsJ), citing Yunghanns (n 53) [18] (Warren J).

[76] Transcript of Ruling (n 41) 34.13-19.

[77] Plaintiffs' Primary Written Submissions (n 54) [20], fn 24.

[78] Ruling (n 2) [80]-[83] (Matthews AsJ).

[79] Ibid [98]-[99] (Matthews AsJ).

[80] Ibid [113]-[118] (Matthews AsJ).

[83] [2016] NSWSC 12, [7] (Brereton J) ('Hancock').

[84] Ruling (n 2) [138(a)] (Matthews AsJ).

[87] Hancock (n 83) [7], [32], [35] (Brereton J) (citations omitted).

[88] Plaintiffs' Primary Written Submissions (n 54) [21], citing Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, [91] (Heydon J).

[89] [2021] VSC 604.

[91] Referring to the Plaintiffs' Primary Written Submissions (n 54) [21].

[92] Transcript of Ruling (n 41) 48-50.

[96] Ruling (n 2) [99] (Matthews AsJ).

[102] Plaintiffs' Primary Written Submissions (n 54) [82]-[85].

[103] Plaintiffs' Written Reply Submissions (n 59) [12]-[14].

[105] Oswal (n 28) [11] (Ferguson J); IPO Wealth (n 30) [54], [57] (Elliott J), citing House v R (1936) 55 CLR 499, 504-5 (Starke, Dixon, Evatt and McTiernan JJ).

[106] Ruling (n 2) [17] (Matthews AsJ); Transcript of Ruling (n 41) 15.13-22.

[107] [2011] VSC 204, [36]-[37] (Vickery J) ('Hodgson').

[108] Ruling (n 2) [133]-[139] (Matthews AsJ).

[109] Plaintiffs' Primary Written Submissions (n 54) [24].

[111] Hodgson (n 107) [36]-[37] (Vickery J).

[112] Ruling (n 2) [136] (Matthews AsJ), referring to Hodgson (n 107) [37] (Vickery J).

[113] Plaintiffs' Primary Written Submissions (n 54) [34]-[37].

[114] Plaintiffs' Written Reply Submissions (n 59) [20], [29].

[115] Hodgson (n 107) [36]-[37] (Vickery J).

[116] Ruling (n 2) [133]-[136] (Matthews AsJ).

[117] Ibid [135], [139] (Matthews AsJ).

[118] Hancock (n 83) [7] (Brereton J).

[119] Ruling (n 2) [116], [135], [139], [167] (Matthews AsJ).

[120] Ibid [138(a)], [139] (Matthews AsJ).

[121] Ibid [170]-[173] (Matthews AsJ).

[122] Ibid [176]-[178] (Matthews AsJ).

[123] Ibid [174]-[187] (Matthews AsJ).

[126] See Documents 4, 5 and 8 of the Hardie Affidavit LPP Schedule, which are Documents 9, 10 and 15 of the Cawood Schedule.

[129] Plaintiffs' Primary Written Submissions (n 54) [53].

[131] At Plaintiffs' Further Written Reply Submissions (n 59) [4], fn 3, the plaintiffs identify 22 items in the Cawood Schedule which they allege are the legal documents prepared by Ms Hardie. Specifically, Documents 6, 7, 9, 10, 15, 22, 56, 60-62, 65, 86, 94, 101, 108, 117, 124, 126, 129, 138, 145, and 157 of the Cawood Schedule.

[132] Plaintiffs' Further Written Reply Submissions (n 64) [4].

[133] Plaintiffs' Primary Written Submissions (n 54) [55].

[134] Propend (n 34) 501 (Brennan CJ, Gaudron, McHugh, Gummow and Kirby JJ).

[135] Ruling (n 2) [137] (Matthews AsJ).

[136] Hardie Affidavit [6], [9] (my emphasis added).

[137] Plaintiffs' Primary Written Submissions (n 54) [58].

[138] First Cawood Affidavit [8]; Second Cawood Affidavit [5].

[139] The preamble to each of the LPP Schedules states: 'Documents over which the defendant presses its claims for privilege on the basis of legal professional privilege are set out in the table below'.

[140] Plaintiffs' Primary Written Submissions (n 54) [74]; Plaintiffs' Written Reply Submissions (n 59) [10].

[141] Plaintiffs' Primary Written Submissions (n 54) [74].

[142] Ruling (n 2) [20] (Matthews AsJ).

[143] Plaintiffs' Primary Written Submissions (n 54) [74].

[144] Ruling (n 2) [117] (Matthews AsJ).

[145] Transcript of Proceeding, Quebani Pty Ltd & v McDonald's Australia Limited (Appeal) (Supreme Court of Victoria, Stynes J, 27 April 2023) 29 ('Transcript of Appeal').

[146] Plaintiffs' Primary Written Submissions (n 54) [77], citing Ruling (n 2) [94(a)], [98], [99], [104], [116] (Matthews AsJ).

[147] IPO Wealth (n 30) [56], [58] (Elliott J).

[148] Ruling (n 2) [109] (Matthews AsJ).

[150] Ibid [99], [117] (Matthews AsJ).

[151] Plaintiffs' Further Written Reply Submissions (n 64) [3].

[152] AWB (n 36) [44(1)] (Young J); Seven Network Limited v News Limited [2005] FCA 142, [6] (Tamberlin J) ('Seven Network').

[153] Plaintiffs' Primary Written Submissions (n 54) [36] (my emphasis added).

[154] Transcript of Appeal (n 145) 115.

[155] Ruling (n 2) [95] (Matthews AsJ) (original emphasis).

[156] Plaintiffs' Primary Written Submissions (n 54) [43]-[44].

[158] Ruling (n 2) [97]-[98] (Matthews AsJ).

[159] Ibid [95], [97] (Matthews AsJ).

[160] Ibid [135], [139] (Matthews AsJ).

[161] Plaintiffs' Primary Written Submissions (n 54) [60], citing Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796, [42] (Beach J).

[164] Dye v Commonwealth Securities Ltd (No 5) [2010] FCA 950, [10] (Katzmann J).

[165] Seven Network (n 152) [5] (Tamberlin J).

[166] Andrianakis (n 37) [100] (Matthews AsJ).

[167] Ruling (n 2) [23] (Matthews AsJ).

[168] Ibid [36], [51]-[53], [57] (Matthews AsJ).

[169] Ibid [94]-[99] (Matthews AsJ).

[170] See eg, Ibid [89] (Matthews AsJ).

[173] Ibid [43]-[47] (Matthews AsJ).

[174] Ibid [92], [94]-[99] (Matthews AsJ).

[176] Andrianakis (n 37) [100] (Matthews AsJ).

[177] Plaintiffs' Primary Written Submissions (n 54) [70].