Consideration
60 Before specifically addressing the issue of the intended use(s) of the Report which accounted for it being brought into existence, it is appropriate to address the circumstances in which the Report was commissioned.
61 There was some dispute between the parties as to these circumstances.
62 The applicant identified the following circumstances.
63 On or around 6 July 2017, Mr Masters sent an email to the applicant attaching sections of the manuscript from his forthcoming book 'No Front Line'. In his covering email, Mr Masters suggested that the applicant had been involved in an alleged execution of a person under confinement (a PUC), and the applicant forwarded this email from Mr Masters to Mr Stokes, Mr McWilliam and Mr O'Brien.
64 In mid-2017, the applicant engaged his solicitor, Mr O'Brien, at Mr McWilliam's suggestion, in response to approaches made to the applicant by Mr Masters. Mr McWilliam was General Counsel and Commercial Director of SWM. The applicant has been an employee of SWM since approximately 2012. The applicant's legal fees were funded by SWM.
65 On 11 July 2017, Mr O'Brien sent a letter to the chief executive officer of Allen & Unwin, the publisher of Mr Masters' books. At the conclusion of that letter, Mr O'Brien wrote:
Mr Masters is clearly motivated to attract publicity for his book and attention to himself by such false and defamatory attacks upon my client. I have very firm instructions to take all necessary steps to protect my client's impeccable reputation but trust that will not be necessary.
66 On 18 and 19 July 2017, Mr O'Brien wrote to Persons 1 and 2 respectively, concerning matters raised in the draft manuscript provided to the applicant by Mr Masters, asserting that it is apparent from the transcript that each has made allegations to Mr Masters and that if those allegations appear in the book, he had instructions to commence defamation proceedings against each individually, in addition to Mr Masters and the publisher.
67 On 17 October 2017, Mr McKenzie wrote an email to Mr O'Brien in which he asked whether the applicant would agree to attend an interview with Mr McKenzie in relation to a story that he was working on surrounding the applicant's Commendation for Distinguished Service Medal and his Medal for Gallantry award. Mr McKenzie stated that he had been informed that several of the applicant's ex-colleagues had spoken about him to the Inquiry, and he asked whether the applicant had been questioned by the Inquiry.
68 On 18 October 2017, Mr O'Brien sent Mr McKenzie a letter, at the conclusion of which he stated that his instructions were to commence immediate defamation proceedings in this Court if any false and defamatory allegations were published concerning the applicant. The next day, 19 October 2017, the respondents published a story written by Mr McKenzie called 'The fog of war and politics leads to controversy over Afghan war mission'. The story mentioned the Inquiry, complaints that had been made by Special Air Services Regiment (SASR) members about the applicant, including his Commendation for Distinguished Service, and the story suggested that well-placed sources said it was likely that the Inquiry would wish to interview the applicant regarding the complaint as well as those who were involved in making the complaint. The substance of the complaint was not disclosed, and the story went on to say that the Inquiry is focused on allegations that have nothing to do with the applicant or any other soldier mentioned in this story.
69 On 28 May 2018, Mr McKenzie wrote to the applicant alleging, inter alia, that he had kicked an unarmed detainee off a cliff in Darwan, Afghanistan, and was also responsible for his murder. On 30 May 2018, the applicant's solicitor notified Mr McKenzie that the allegations were false and defamatory and that he had instructions to "commence immediate defamation proceedings … if the same or similar allegations as outlined in your email are broadcast or published. … In anticipation of the Federal Court Proceedings, I formally put you on notice to retain all text messages, emails … telephone records, drafts and notebooks relating to [the applicant]".
70 On 8 June 2018, the SMH published an article by Mr McKenzie and Mr Masters alleging that an SASR soldier named "Leonidas" kicked a prisoner of war off a cliff in Darwan. The article suggested there were firsthand witnesses and asserted that this incident was being investigated by the Inquiry. On 14 June 2018, Mr O'Brien wrote to Mr McKenzie seeking, amongst other things, undertakings from Mr McKenzie and Mr Masters not to identify the applicant as Leonidas.
71 To that, the respondents added two groups of events.
72 The first relates to an email of 6 June 2018, which the applicant sent to Mr O'Brien and Mr McWilliam, stating that Mr Stokes had approved support for another SASR member who had been summoned to appear before the Inquiry. That person is said to be Person 35. The second relates to what was said to be communication by the applicant with Persons 5, 11, and 35 about what was being said in the Inquiry in the period from the Report being commissioned until a hard copy was provided to Mr McWilliam.
73 I will return to the issue of the relevance of these additional matters below.
74 Against that background I turn to the evidence as to the purpose for which the document was created.
75 The starting point is to consider what were the intended use or uses of the Report which accounted for it being brought into existence: Pratt 2004 at [35]. The purpose for which a document is brought into existence is a question of fact that must be determined objectively, having regard to the evidence, the nature of the document, the nature of the communication, the content of the communication, the relevant context and the relationship between the parties, and the parties' submissions: AWB at [109]-[110]. The relationships are an issue in this context, as they impact the assessment of the dominant purpose for which the communication occurred. Although attention is ordinarily focussed on the purpose(s) of the person who created the document, that is not so in this instance where the document was procured by others: Hartogen Energy at 568-9. As explained above, evidence of the subjective purpose for which the document is brought into existence is relevant, and although not necessarily conclusive, it is often decisive: Esso at [172].
76 It is important to recall that the purpose for which the Report was prepared is to be adjudged at the time of its creation. At the outset, it is appropriate to recall that the evidence of the applicant's witnesses was unchallenged.
77 It was contended by the applicant, and ultimately not challenged by the respondents, that one of the purposes of commissioning the Report was to provide it to the applicant's lawyers to best protect his interests. The applicant submitted that there was another purpose, to enable SWM to obtain advice from an external lawyer (Ms Munsie) if Mr McWilliam determined it was necessary to do so given that SWM was funding the applicant's legal fees, but that that was a subsidiary purpose. The applicant submitted that it can be inferred that SWM also has a claim for privilege by reason of its common interest in the document and because Mr McWilliam also intended to obtain separate legal advice.
78 The issue is whether it is established Document 1 was created for the dominant purpose of obtaining legal advice or in anticipation of either potential defamation proceedings and/or the applicant being called before the Inquiry, such as to attract a claim for legal professional privilege.
79 The applicant's submission that the evidence establishes that Mr McWilliam was acting on his authority, can be accepted. The conversation between Mr McWilliam and the applicant is deposed to by each party, in respect to Mr McWilliam recited above at [13], and Mr Roberts-Smith recited above at [25]. It was the applicant who authorised the creation of the document. He agreed to its creation on his behalf, without which, it can be inferred, this investigation would not have occurred, and this document would not exist. The applicant is the client, or the principal, and is making the claim as such.
80 It was the applicant who authorised the commission of the Report and Mr McWilliam who organised its preparation. The applicant's subjective state of mind as to the purpose of its creation, the evidence of which is recited above at [27], is plain. Its creation was for the purpose of obtaining legal advice including to be used in preparation for giving evidence at the Inquiry. At this time, there was a real prospect that he might be called. What was authorised to be undertaken, was to be confidential. The applicant understood that the Report was to go to his lawyers to assist them to provide him legal advice. He agreed to the Report going to Mr McWilliam and the Chairman of SWM on the basis they were financially backing him. Mr McWilliam (and SWM) at the time had a common interest with the applicant. It can be inferred that there would be no Report without the applicant authorising its commission. His evidence as to the purpose of the Report is consistent with the conversation he had with Mr McWilliam at the time the Report was authorised.
81 It was Mr McWilliam who, having been authorised, organised or arranged for the Report to be prepared, communicating with Mr Coulthart. Mr McWilliam, in his discussion with the applicant, the applicant's lawyer and Mr Coulthart, described the purpose being for use in the obtaining of legal advice by the applicant from his lawyers or in anticipation of the applicant being called to give evidence in the Inquiry and possible defamation proceedings. Mr McWilliam also explained that at the time he "also thought that a copy of the report may need to be provided to Justine Munsie in case she needed to provide any advice to Mr Stokes, the Chairman". At the time, SWM were funding the applicant's legal fees, with the backing of the Chairman. In that context, Mr McWilliam considered that it was important he and the Chairman should also receive a copy of the Report as he wanted to ensure that any decision to continue to support the applicant was a "considered one" and so they could obtain external legal advice if that would be required. That is why Mr Coulthart was asked to address the Report to Ms Munsie as well as Mr Moses SC. The evidence of conversations Mr McWilliam had with the applicant is consistent with those purposes. I appreciate that the respondents submitted that from Mr McWilliam's evidence at least five purposes were identified, but four of those appeared to be interrelated, and if anything, different facets of the same thing. Properly understood, it centred on the possibility of needing to get advice from external counsel in a context where SWM were funding the applicant. The other purpose identified, and accepted by the respondents, was for the applicant's lawyers to advise him in relation to the Inquiry and potential defamation claim
82 I note that the respondents also referred to Mr Coulthart's purposes in the creation of the Report. However, properly considered, as the author of the Report, which was commissioned by others, his purpose does not advance the matter. Suffice to say the nature of his investigation was clear and not challenged, and nor was the fact that he has not disclosed the contents of the Report to anyone other than Mr McWilliam and Mr Stokes. Moreover, the respondents' basis for his purported purposes are drawn from text message exchanges between Mr Coulthart and Mr McKenzie on 1 August 2018, some weeks after the Report was completed. Although the respondents refer to the messages as contemporaneous, they are not. Properly read, the purported purposes referred to cannot be inferred from those messages. Those purposes are not borne out by the underlying evidence relied on by the respondents. I note also at this stage that it is apparent from the text messages that it is the respondents who approached Mr Coulthart and unsuccessfully pursued an interest in speaking to him. I will return to these messages below in relation to the respondents' submission that if the claim for privilege is established, it has been waived.
83 That said, even if it was Mr McWilliam's "project", it does not necessarily follow that its creation was not for the purpose of obtaining legal advice or in anticipation of litigation. When careful attention is directed to the evidence, although the respondents are correct as to some aspects of the submissions as to what Mr McWilliam did to engage Mr Coulthart and disseminate the Report, others do not withstand scrutiny. The submission also appears to consider the conduct of Mr McWilliam in isolation from the broader circumstances in which it occurred.
84 It may be accepted that it was Mr McWilliam's idea for Mr Coulthart to conduct an investigation, but that of itself, as the respondents conceded, does not advance the matter. It can also be accepted that it was Mr McWilliam who contacted Mr Coulthart, but this is in a context where he was authorised to do so by the applicant.
85 It was said by the respondents that Mr McWilliam chose to whom the Report was addressed. The submission is artificial. Although Mr McWilliam did inform Mr Coulthart to whom the Report was to be addressed, the purpose of the Report informed the identity of those persons. Mr McWilliam said to Mr Coulthart to address the Report to the applicant's lawyer, Mr Moses SC, which, given the purpose for which the Report was created, is to be expected. That can hardly be seen as a choice, but rather the inevitable consequence of the purpose for obtaining the Report being to provide it to the applicant's lawyers to enable them to advise the applicant. I note that the respondents' submission appeared to imply there was some choice involved by Mr McWilliam because the Report was not provided to the applicant or Bruce McClintock SC (the applicant's defamation counsel at the hearing of the substantive proceeding). As to the former, the Report went to the applicant's lawyer because of, and consistent with, the stated purpose for which it was created. Given that purpose, the applicant not receiving it should be uncontroversial. As to the latter, the evidence is that Mr McWilliam understood that Mr Moses SC at that time was representing the applicant in connection with the Inquiry. There is no evidence as to Mr McClintock SC, or of his involvement in any of these matters at this time. Mr McWilliam also said to address the Report to Ms Munsie because he considered, in light of the purpose of the Report, if SWM did decide to get external advice, she was the person from whom it would be sought.
86 Again, it may be accepted that on completion of the investigation the Report was provided to him by Mr Coulthart, and in accordance with the stated intention, copies were given to the applicant's lawyers (his solicitor for the provision to counsel) and Mr Stokes. Mr McWilliam did not give a copy to Ms Munsie as he, at that stage, considered it was not necessary to get external advice, and that he could give the advice. I do not accept the respondents' submission that Mr McWilliam had the Report delivered to him "reserving to himself the right to decide from thereon where the document went". Mr McWilliam did not receive the Report to then make "decisions about who gets it and in what circumstances". The Report was to go to the applicant's lawyers. Mr McWilliam was the conduit and he provided the Report to Mr O'Brien, the applicant's solicitor, who then provided it to Mr Moses SC, his barrister. There is no proper basis to suggest that was not going to happen, or that he reserved for himself the decision whether it was to happen. The unchallenged evidence was that he simply made a copy and distributed it to them, consistent with its purpose and in accordance with what was authorised by the applicant. In any event, the respondents' submission, that Mr McWilliam then "elected" to give the applicant's lawyers the Report, as if there was some choice to be had, is not supported by the evidence. Indeed, in oral submissions the respondents accepted that Mr McWilliam was to provide the Report to Mr Moses SC. The only decision to be made was, after having received the Report, whether SWM would get external advice, and so whether it would be forwarded to Ms Munsie. The respondents' submission that the Report was "kept back from Ms Munsie", does not represent what, according to Mr McWilliam's evidence, occurred.
87 The respondents' submission proceeded on an incorrect characterisation of what occurred.
88 I note also in this context, that there is no evidence to support the respondents' submission that a "conscious attempt" was made to "cloak the Report in privilege" by inserting the names of Ms Munsie (who did not know why her name was included) and Mr Moses SC on the Report, in so far as it suggests this was a device used to somehow attract privilege. Rather, the unchallenged evidence was that Mr Moses SC and Ms Munsie were the persons to whom the Report was to be addressed because it was Mr Moses SC who was to receive the Report, and Ms Munsie if it was decided external advice was needed. That Mr McWilliam asked that their names be on the Report, explained their role and that the Report is confidential and privileged, reflects the position. As explained below, an objective assessment of the purpose for which the Report was created, is consistent with that evidence. There is no suggestion in the evidence (or from the circumstances in which it was created) that the reference in the Report to it being privileged, and that it was addressed to those persons, was other than bona fides. It is typical of a report prepared in a context considered to be covered by legal professional privilege. This is consistent with the evidence of Mr McWilliam, Mr Coulthart and the applicant as to the circumstances of the Report's commissioning. I note also that Mr McWilliam's conversation with Mr O'Brien, recited above at [31], which was shortly after the publication of the articles, reflects the intention as to the purpose of the Report and that it was to be provided to the applicant's lawyers to assist them in relation to advising the applicant. That Mr McWilliam did not send the Report to Ms Munsie as he had decided that external advice was not needed, does not alter that: see Sterling at 245; Pratt 2004 at [19]; Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 at [232], [234].
89 A number of further factual observations can be made.
90 First, the evidence establishes that the Report was commissioned on the basis that it was confidential, and it was to be treated as such at the time of its commission, with the only persons it was to be provided to being the applicant's lawyers, Mr McWilliam, Mr Stokes, and possibly Ms Munsie, if Mr McWilliam considered that SWM needed to obtain external legal advice. The Report was marked "STRICLY PRIVATE AND CONFIDENTIAL. THIS DOCUMENT WAS PREPARED FOR THE PROVISION OF LEGAL ADVICE AND ITS CONTENTS ARE STRICLY PRIVILEGED". Although not conclusive, as noted above, this is typical of what might occur if the document was prepared for a privileged purpose(s). It reflected on its face that it is confidential. Once received, and in the hands of any of those persons, it was to be treated confidentially by them. There was an obligation of confidentiality. The evidence establishes that, consistent with that stated intention, the Report has been treated in this manner.
91 Second, the evidence establishes that there is a common interest between the applicant and SWM in the contents of the Report. SWM, at that time, were indemnifying the applicant's legal fees, the applicant was employed by SWM in a high profile position and there was a commercial benefit to SWM in protecting the applicant's reputation, which would equally protect the reputation of SWM. The respondents did not directly address that submission, but rather contended that any claim of common interest reinforced that there was no dominant purpose. The respondents also submitted that demonstrating a common interest shows "the very separation of interests". That is, the very purpose of getting the Report is so that SWM can test what the applicant is saying and the allegations that have been made against him, and so they can make a commercial decision which reflects their financial interests and also their reputational interests. It was said that the Report was "designed to…stress test the applicant", and therefore was not a "friendly common purpose". If that is said to enable SWM to make an informed decision as to funding of legal fees, it does not follow there is no common interest. If the submission to "stress test" the applicant is something more, that is not supported by the evidence. Many of the respondents' submissions as to why the Report was commissioned are speculative in a context where the applicant's and Mr McWilliam's evidence was not challenged. That Mr McWilliam expressed the view that he thought that it was important that he and the Chairman get a copy of the Report to ensure any decision as to continuation of support of the applicant (and that he can answer any questions about them doing that) was a "considered one", does not alter that there was a common interest. The respondents did not address the submission as to the effect of the common interest on the privilege claim, if the applicant's submission as to its existence is accepted.
92 The evidence establishes that in about mid-2017, after being informed by the applicant of the approach by Mr McKenzie, Mr McWilliam suggested to the applicant to retain Mr O'Brien as he was a specialist defamation lawyer. The applicant had informed Mr McWilliam the allegations were false. At the time, Mr McWilliam was concerned that the applicant's employment by or association with SWM may have been a contributing reason as to why he was being targeted by Mr Masters, and he considered that SWM had a duty of care to the applicant. The stories were being published by a rival media network.
93 Although the Report did not involve direct lawyer-client communication (between the applicant and his lawyers), SWM had a common interest. Any involvement of Mr McWilliam, (and Mr Stokes), is in that context.
94 In Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 (Network Ten) at 279, Giles J explained common interest privilege at common law as follows:
If two parties with a common interest exchange information and advice relating to that interest, the documents or copy documents containing that information will be privileged from production in the hands of each; thus, if one of the parties obtains a letter of advice attracting legal professional privilege and provides it to the other, the other can also claim legal professional privilege.
95 In this context "common interest" is not a "rigidly defined concept" and a question of fact in each case: Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] NSWSC 259; (1996) 39 NSWLR 601 (Farrow) at 609B; Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2006] NSWSC 234 (Rickard Constructions) at [51]; Cygnett at [16]. Categories of relationship in which a sufficient commonality of interest will arise, or is likely to arise, are not closed: Cygnett at [16]. Parties to litigation "interested in a particular question" will not "have a common interest for the purposes of common interest privilege if their individual interests in the question are selfish and potentially adverse to each other. In such a case there will not be the necessary identity of interest": Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 410A, cited with approval in Patrick v Capital Finance Corporation (Australasia) Pty Ltd [2004] FCA 1249; (2004) 211 ALR 272 at [22]; Media Ocean Ltd v Optus Mobile Pty Ltd (No 10) [2010] FCA 1348 (Media Ocean) at [52]; Cygnett at [22].
96 It is now well established in Australia that a "mere" common interest in the outcome of litigation will be sufficient to enable any party with that interest to rely on common interest privilege: Farrow at 609B; Media Ocean at [53]; Hamilton v New South Wales [2016] NSWSC 1213 at [75]; Cygnett at [19].
97 In Cygnett at [24], O'Callaghan J said, citing Inlon Pty Ltd v Celli SpA [2017] NSWSC 569 at [107], that:
I agree that the authorities make it clear that "the ultimate question is whether, at the time the communication is made, there is an express or implied obligation of confidentiality" and that a court "should not refuse to imply such an obligation if the circumstances otherwise justify it, merely on account of the potential for some sort of change in the parties' relationship at a later point".
98 Common interest privilege has been held to exist in the context of providing information to a person funding the legal advice or litigation: see for example Rickard Constructions at [57]-[59].
99 In Rickard Constructions, Bergin J when considering whether the contents of documents, copies of which were provided to the funder, were confidential and were prepared by the lawyers for "the dominant purpose" of "providing legal advice" to the plaintiff, concluded at [56]-[59]:
[56] This is not a case in which a professional funder has decided to "invest" in the proceedings for the prospect of profit. As I have said earlier, each case must be considered on its own facts. The type of funding, the arrangements for funding, the relationship between the funder and the funded party and the nature of the interests of the funder and the funded party will require analysis to determine whether there is an identity of interests such that they may be categorised as "common".
[57] I have already analysed the type of funding, the arrangements for funding and the nature of the relationship between the funder and the plaintiff. I am of the view that the funder had and has an interest in the most advantageous conduct of these proceedings by the plaintiff. That interest is identical with that of the plaintiff: Bulk Materials at 695. I am satisfied that the funder in this case has "a common interest in relation to" the proceedings and thus s 122(2) and s 122(4) do not apply. Even if that is wrong I am not satisfied that privilege was waived under s 122(2) because the documents were provided to the funder in the course of a confidential communication. As s 122(2) "operates" in this instance s 122(4) need not be considered.
[58] A different question arises under s 119 of the Act [litigation privilege]. It is whether the communications were for the dominant purpose of the plaintiff "being provided with professional legal services". I have already decided that the communications were confidential communications. The dominant purpose in the confidential communications was to provide information to the funder so that it would source the continued funding of the litigation. It may be argued, as it was in Global Imaging, that such a purpose is anterior to the dominant purpose of the client "being provided with professional legal services". In Global Imaging Santow J held that the funding agreement in question in "a literal and substantive sense, fulfils the purpose of providing legal services in terms not only of the overall capacity to have them at all, but also their availability at critical junctures in the case" (at [7]).
[59] In this case it is the confidential communications rather than the funding agreement that are under consideration. They are not anterior to the dominant purpose, they are inextricably linked to the nature of the professional legal services being provided to the client. Their dominant purpose was to ensure the overall capacity of the plaintiff to have funding and to ensure that such funding would be forthcoming for the continued funding of the litigation. That seems to me to fall within the description of a dominant purpose of the client "being provided" with professional legal services. This description is to be contrasted with the expression "providing professional legal services". The concept of the client "being provided with" something is of broader import and seems to me to encompass the purpose under consideration here. I am satisfied that the documents are also privileged pursuant to s 119 of the Act.
100 Although that passage recited above relates to the Evidence Act 1995 (NSW), the reasoning appears equally apt in the common law context.
101 Although not a professional funder, SWM, with the backing of Mr Stokes, was at this time providing direct legal funding to the applicant and Mr Coulthart's Report enabled those backing him to be kept abreast of the allegations then known and the applicant's response to them and possibly to receive legal advice in that context. Mr McWilliam's evidence that he was of the opinion that the Report would assist the applicant and his lawyers to advise him of any possible attendance at the Inquiry and also in relation to a potential claim for defamation is consistent with SWM having a common interest in protecting the applicant's reputation (which would include, practically speaking, that his lawyers be in the best position to advise him). As the funder and his employer, SWM has an interest in the applicant being put in the most advantageous position in respect to providing such advice (including as to any future attendance at the Inquiry and any possible defamation claim).
102 Pausing there. The respondents made much in their submission that the Report went to Mr McWilliam and not directly to the applicant's lawyers, as reflecting that the Report is not privileged. That is, if the Report was for privileged purposes it would have gone directly to the applicant's lawyers: see for example Pratt 2004 at [47]; Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796 (Asahi) at [37]-[40]. However, the above discussion at [86] puts that submission in context. If Mr McWilliam's involvement in receiving and delivering the Report to the applicant's lawyers (as a person with a common interest with the applicant who was to receive a copy of the Report for himself in that capacity) was doing so merely as a conduit, the denial of privilege is made on the basis of form over substance. On the unchallenged evidence, there was no filtering or exercising of independent judgment by Mr McWilliam in respect to providing the Report to the applicant's lawyers: cf Pratt 2004 at [47]. The only judgment was in respect to the need for external advice for SWM. The focus of the inquiry as to the purpose of the Report should be on the basis for which Mr Coulthart was engaged: see for example Pratt 2004 at [41], [103]; Asahi at [38]. This is also illustrated by the fact that if the Report had been delivered directly to the applicant's lawyers, and thereafter they provided a copy to Mr McWilliam, for a common interest, the claim of privilege would be maintained.
103 Third, it may be seen as rather unusual, at least on the surface, that the Report was compiled by an investigative journalist. The respondents emphasised this description, and repeatedly referred to the Report having been commissioned to a journalist and how a journalist would approach their investigation of matters. However, as the respondents accepted in arguendo, lawyers often use investigators. In this case, on the evidence, Mr Coulthart was commissioned in that capacity, to investigate and report. I note also that another document caught by the subpoena is another report (which is referred to and described in Mr O'Brien affidavit) from a later investigation undertaken by Mr Coulthart on the applicant's behalf, on which the applicant claims privilege, of which no challenge is made by the respondents. In that context, the relevance and significance of the respondents' submission that the Report was compiled by Mr Coulthart, who is a "journalist", is unclear.
104 Fourth, as noted above at [72], the respondents add two categories of events to the circumstances in which the Report was created. It is necessary to make some comments on the submissions to which that evidence was said to be relevant. The respondents asserted that Persons 35 and 11 are represented in these proceedings by Ms Munsie. The relevance of that fact is entirely unclear. Nor is there any basis in the evidence to suggest that Ms Munsie was then representing these persons. The affidavit of Mr Bartlett on which the submission appears to be based does not support that assertion. I note also in that context the respondents' submission that SWM agreed to fund the legal fees of Person 35 and at least one other person (likely Person 11), and "it is unsurprising that Mr Stokes and Mr McWilliam immediately commissioned a Report by a trusted contact to determine whether SWM would continue funding those soldiers in light of the Fairfax reporting". There is no evidence to support that submission. Mr McWilliam's evidence, which makes no reference to such a proposition, was not challenged.
105 The second category of events was the conduct of the applicant in communicating with Persons 5, 11, and 35 in the two week period from the Report being commissioned until a hard copy was provided to Mr McWilliam. To establish that contact, the respondents put before the Court transcript of the applicant's cross-examination in the substantive proceeding. It was submitted by the respondents that in effect there were "two streams of communications about what people are saying about these allegations". It was said that after the SMH articles were published on 8 and 9 June 2018, the applicant communicated with his friends about the allegations. At the same time, Mr Coulthart was carrying out his investigation and presumably sought to interview the same class of persons. The submission seemed to imply there were in effect, two concurrent investigations. I note that, taking the respondents' submission at its highest, it is not suggested anyone, apart from the applicant, knew of his purported conduct.
106 When pressed as to the relevance of this in assessing the claim for privilege, the respondents submitted that the applicant speaking to his "friends" makes it objectively less likely that the dominant purpose of preparing the Report was a privileged purpose. Leaving aside whether the transcript of the applicant's cross-examination supports the breadth of the submission as to what the applicant was purportedly doing, and the very speculative nature of the submission as to what was occurring in respect to Mr Coulthart's investigation and the applicant's conduct, the logic does not follow. Moreover, that submission also ignores the unchallenged evidence of the basis on which the Report was commissioned, what the investigation was to do and what Mr Coulthart describes in his affidavit he did. As the applicant submitted, referring to Mr Coulthart's affidavit, there is no suggestion that in preparing the Report he spoke to anyone other than the applicant. Importantly, that submission does not address how the applicant speaking to his friends after the Report was authorised by him, affects the objective assessment of the purpose for which the Report was created. I do not accept the submission.
107 Intertwined with this was a submission by the respondents that the purpose for the creation of the Report could not have been for the applicant and his lawyers, because his lawyers had nothing to do with the Report and would not have permitted the applicant to be interviewed "by a journalist without their presence". Although the respondents referred to Mr Coulthart as a "journalist", as noted above, he was acting as an investigator. The applicant and Mr O'Brien agreed to this investigation, and their evidence was not challenged as to the purpose of the Report. It is plain on the evidence that Mr Coulthart was to interview the applicant and prepare a report, for use by his lawyers. Indeed, Mr Coulthart's evidence as to the investigation only described doing that. The applicant's solicitor was aware that the applicant was to be spoken to. Moreover, if anything, the inference is that the applicant would not have agreed to authorise this, and his solicitor would not have agreed to (or been content with) it occurring, but in a context where it was to assist them, to provide legal advice and for use in potential litigation. Indeed, the inference to be drawn is that this Report would not have been created (or agreed to) except in those circumstances.
108 The respondents also submitted that another relevant aspect when assessing the objective purpose, was that the applicant had already given his lawyers instructions. It was submitted that by May 2018, the applicant's lawyers had already taken instructions from him in relation to Whiskey 108 and Darwan. This is said to be because on 28 May 2018, Mr McKenzie wrote to the applicant putting to him allegations of murder at Darwan and Whiskey 108, and two days later, Mr O'Brien responded that the allegations were "false" and defamatory. That could only have been made if the applicant had given instructions on Darwan and Whiskey 108. Therefore, it was said that it is objectively less likely that some two weeks later, a report was commissioned for the dominant purpose of enabling the applicant's legal advisors to provide him with advice on matters he had just recently provided instructions on. However, that submission fails to grapple with the respondents' acknowledgement that one of the purposes of the Report was for it to be provided to the applicant's lawyers, which must be to assist in providing legal advice. Moreover, the submission is speculative as to the extent of any instructions provided, and ignores the breadth of the investigation in relation to other rumours (that is, not confined to those two matters).
109 I note that the matters relied on by the respondents, referred to above, as to why objectively the dominant purpose was not the obtaining of legal advice (or in relation to the Inquiry or defamation proceedings) are inconsistent with the subjective intention of the applicant and Mr McWilliam and the contemporaneous communications (including between them, and in relation to Mr Coulthart and Mr O'Brien).
110 The subjective evidence reflects that the Report was created for the dominant purpose of obtaining legal advice which included to prepare for the potential of the applicant giving evidence before the Inquiry, as well as obtaining evidence or information for potential defamation proceedings. The subjective evidence as to the purpose for which the Report was created (of the applicant but also Mr McWilliam), reflects that, and that SWM's interests were subsidiary to that dominant purpose.
111 That subjective intention as to the purpose of the Report at the time it was created is supported by an assessment of the objective circumstances in which it occurred. It is consistent with the contemporaneous communications and conduct concerning the creation of the Report.
112 I am satisfied that an objective assessment of the circumstances in which this Report was created establishes that it was for the dominant purpose of obtaining legal advice, including preparing the applicant to give evidence in the Inquiry, and possible defamation proceedings which, on the evidence, were actually contemplated. Professional advice given by lawyers to a client as to what evidence and submissions should be placed before a commission of inquiry, is legal advice capable of attracting legal professional privilege: AWB at [100]. Moreover, by the time of the creation of the Report, there was a real prospect of litigation: Mitsubishi at [19].
113 Mr Coulthart's role was to summarise the various allegations and rumours concerning the applicant about his service in Afghanistan which had been published by the respondents or been the subject of threats to publish in numerous pieces of correspondence sent by the respondents. He was to speak to the applicant about those allegations and to elicit his response to them and to gather any other material or information that may be relevant for provision to the applicant's lawyers. The number of allegations and rumours appeared to be growing over time. The Inquiry was underway and what was being reported made it likely that the applicant would be called before it. The correspondence between the applicant's solicitor and the respondents leading up to this Report being created made the prospect of defamation proceedings a realistic one.
114 As explained above, that Mr McWilliam, who had a common interest with the applicant, contacted Mr Coulthart with the applicant's authority, and received the Report from Mr Coulthart, given the nature and content of the communication, the relevant context and the relationship between the parties, does not deny the claim for privilege. These communications were made on behalf of the applicant, for the dominant purpose of putting before the applicant's lawyers, material to be used to provide legal advice or in anticipation of litigation.
115 I do not accept the respondents' submission that the purpose of protecting the interests of SWM (and what that was said to entail) was dominant or equal with the privileged purpose(s). Although it may be readily accepted a purpose in the creation of the Report was to inform SWM of the allegations and the applicant's response to enable SWM to obtain advice from an external lawyer if necessary in respect to their position as to funding, in all the circumstances that was a subsidiary one. That nonetheless, was also for potential legal advice, a privileged purpose. I note also in that context, even if Mr McWilliam was also a principal, in this matter, given the dominant purpose of the Report and the common interest, it would not affect the outcome of the applicant's claim.
116 The respondents contended that if privilege did exist, it had been waived by Mr Coulthart. It was submitted that Mr Coulthart repeatedly and purposely disclosed the results of his investigation to the respondents. It was suggested that the applicant was a potential beneficiary of Mr Coulthart's back-channelling. The evidence relied on by the respondents commenced with Mr McKenzie contacting the applicant on or about 1 August 2018 (six weeks after the investigation was completed and the Report provided) wanting to know who he was working for, and whether it was Channel 7. It was apparent that after that Mr Coulthart texted James Chessell, the Executive Editor of the SMH and The Age, complaining of Mr McKenzie's conduct in contacting him and the content and tone Mr McKenzie had used in confronting him. Although Mr Coulthart says he works for Cato & Clegg, there is no reference at all in the correspondence to any investigation being conducted by him for the applicant. That people have been reaching out to him at that time, says nothing about when that occurred, the content of it, or any other matter which the respondents rely on. Even if that were so, there is no evidence this was obtained by him in the investigation for the purpose of the Report, or was in the Report. The submission is speculative. Moreover, as explained above when addressing the respondents' submission as to Mr Coulthart's purpose, it was the respondents who contacted him, and pursued him unsuccessfully thereafter. In any event, given that the unchallenged evidence from Mr Coulthart is that he has not disclosed the contents of the Report to anyone except Mr McWilliam and Mr Stokes, I am not satisfied that that the material relied on by the respondents represents a waiver of privilege.
117 All that said, I nonetheless looked at Document 1, which only served to confirm the conclusions reached.
118 I am satisfied that in relation to Document 1, the claim of legal professional privilege is established.