Tan v Commissioner of the New South Wales Police

Tan v Commissioner of the New South Wales Police - [2012] NSWSC 1580 - NSWSC 2012 case summary — Zoe

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Factual matters 5In the Outline of Submissions from the Defendant filed 4 September 2012, a comprehensive account of the factual background to the proceedings is set out. It became apparent at the hearing that there was no controversy concerning background matters and many other facts as therein recorded. Accordingly, the account that follows draws upon the defendant's written Outline of Submissions. Specific matters at the centre of the controversy are separately discussed later in the judgment. 6The plaintiff provided psychiatric treatment to patients at the Northside Clinic during the years 2009, 2010 and 2011. The Clinic is an inpatient and outpatient facility specialising in mental health treatment. He also provided psychiatric treatment through another Clinic conducted at a different location in Sydney. During the relevant years he provided psychiatric treatment to a number of female patients including two who will be referred to in this judgment by the initials MW and SB. 7On or about 7 November 2011, the patient MW made a complaint about the plaintiff. This was brought to the attention of the Northside Clinic where he treated the patient and later to both the Medical Council of NSW and the Health Care Complaints Commissioner. Dr Tan learnt of this complaint in about mid-November 2011. 8On 14 or 15 November 2011, he had his first contact (by phone) with Mr Van Der Poll, solicitor, of Holman Webb Lawyers in connection with the complaint. Dr Tan at that time was temporarily in Perth. 9On 17 November 2011, Dr Tan had his first meeting with Mr Van Der Poll. 10On 21 November 2011, he had a second meeting with Mr Van Der Poll at the Northside Clinic. On that occasion the latter was shown an email relating to the complaint that had been made by the patient MW. In cross-examination Mr Van Der Poll accepted that, on the basis of the content of the email then shown to him, it appeared that the only complaint that had been made up to that date was that by the patient MW. 11Subsequently a complaint was made by the patient SB in respect of Dr Tan. A letter from the Health Care Complaints Commissioner was sent to him about the complaint. The letter was dated 12 January 2012. Dr Tan became aware of this second complaint by 18 January 2012. 12On 18 January 2012, he attended the offices of National Surveillance and Intelligence ("NSI"), a firm that has expertise in conducting mobile phone forensic examinations. Dr Tan left his Blackberry mobile phone with Mr Navid Sobbi, the managing director of NSI, for the purpose of retrieving messages from it.

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Affidavit evidence 13In the plaintiff's case, affidavits were relied upon as follows: (i) Dr Tan sworn 5 September 2012; and (ii) Mr Van Der Poll sworn 31 August 2012. 14The defendant relied upon five affidavits including two folders of exhibits to two affidavits, as follows: (i) Detective Sergeant Stuart Thomson sworn 21 August 2012. Exhibit ST1 to the affidavit included two discs pertaining to the execution of the search warrants. (ii) Detective Sergeant Thomson sworn 29 August 2012 (correcting certain matters in his first affidavit). (iii) Detective Senior Constable Adam Noy sworn 21 August 2012. (iv) Allan Watt sworn 22 August 2012 (Forensic Services Officer). Annexed to the affidavit were two reports confirming that data had been wiped from the Blackberry mobile phone. (v) Navid Sobbi sworn 22 August 2012. Attached to Mr Sobbi's affidavit was his statement to police dated 30 January 2012 (Annexure A) and other documents including manuals concerning the software used by him in the data extraction process as undertaken at the plaintiff's request. 15Both the plaintiff and Mr Van Der Poll were cross-examined on their respective affidavits. 16Dr Tan explained the circumstances that led him to obtain electronic and other copies of data on his mobile phone. He stated in his affidavit: "[12] Following my first meeting with Mr Van der Poll, he requested that I obtain printed copies of SMS and email communications between myself and various patients." 17Dr Tan also stated at [13] that although the initial complaint which he received from the Northside Clinic concerned only one patient (MW), he was concerned that other patients might also make complaints against him. 18At Mr Van Der Poll's suggestion Dr Tan said he initially contacted his telephone provider, Telstra Corporation Limited, but was told that that entity could only retrieve some of the messages and referred him to NSI. 19Mr Van Der Poll, in his affidavit, [4], said that when he met Dr Tan for the first time he said words to him to the effect: "Can you please arrange to extract from your phone and print copies of all emails and sms communication between you and relevant patients." 20In cross-examination, it was put to Dr Tan that his reference in [13] to discussions with other patients and to other patients having made complaints was simply incorrect. Dr Tan did not accept that proposition and responded by saying that he was aware of the risk that his therapeutic techniques may result in other patients becoming complainants. (Transcript 6 September 2012 at p 24). 21Dr Tan said that Mr Van Der Poll had requested that he obtain copies of SMS and email communications between himself and various patients. When asked which patients he was referring to Dr Tan responded to the effect that he was referring to "all my patients ...". (T 27). Dr Tan was reminded that Mr Van Der Poll in his affidavit had used the expression "relevant patients". When asked if he was concerned that potentially all his patients might make complaints against him, he answered in the affirmative. (T 27). However, he later accepted that he only obtained "printouts" of data from Mr Sobbi in relation to two patients, SB and MW. (T 31). 22Mr Van Der Poll in cross-examination stated that when he met with Dr Tan at the Northside Clinic on 21 November 2011, he was shown a copy of an email dated 7 November 2011 from the patient MW. He agreed that the email did not identify any other complainants who had made complaints against his client: (T 16-17) 23Mr Van Der Poll also accepted that apart from the patient MW and the patient SB he had not heard of any other complaints being made against Dr Tan: (T 17). He agreed that in the week commencing 4 November 2011, there had only been one complainant: (T 18).

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Extraction of data 36On 19 January 2012 Mr Sobbi performed a forensic examination procedure on Dr Tan's Blackberry mobile phone as requested. For that purpose he used a device known as a Cellebrite Universal Forensic Extraction Device ("UFED"). The mobile phone was plugged into the device which then caused the digital data stored in the mobile phone to be downloaded. On completion of the downloading the UFED was then connected to Mr Sobbi's computer. The software "UFED Physical Analyser" ("the Program"), located on Mr Sobbi's computer, transmitted the recovered data on the device to it. 37Once the data dump had been transferred from the UFED to the computer it was then sorted into a file tree that could be viewed from the Program. A file tree is what the User of the Program ("the User") typically sees when the User opens Windows Explorer on his or her computer. It displays files and/ or folders in a hierarchy on the left hand side of the screen. Located in the file tree is a file entitled "Dump" which is the binary data and constitutes the entire memory dump that has been transferred from the UFED. A number of folders also appear in the file tree. They will usually include "SMS", "MMS" and "emails". 38Mr Sobbi stated in his affidavit at [8] "When the User opens a folder such as the "SMS," through the Program it will show all the SMS messages recovered from the mobile phone. The information regarding SMS messages is displayed in that folder in a type of spreadsheet format. The messages are individually listed in rows and information for each message is displayed across a number of columns. The type of information displayed in the columns includes the mobile number and possibly the name of the sender or receiver and the date and time of message. A column will also display the content of each message." 39Mr Sobbi further explained in his affidavit at [10] that once the file tree had been created, the User can select an option in the Program to create a report. The report contains all the data downloaded but organised in a form that is able to be read. In addition to the content of the message, background information about the message will also be contained in the report, including the date and time the message was sent or received, the address, name and/or number of the sender or receiver. 40When selecting the option to create a report, the User can select the type of content for the report. Accordingly, a report could contain all emails and messages or the User could opt to create a report that only shows a specific type of message structure eg SMS messages. As discussed below, the report may then be produced into different file types. Mr Sobbi observed that, before creating the report, it was his practice to ask the customer the purpose for which a report was required. He referred to a PDF version as being a legal or court report, as the information contained in it could not be amended, manipulated or filtered in any way. This, he said, was a standard version of the report that he provided for a client. 41Mr Sobbi caused the software to create "reports", the downloaded data being readable on an ordinary computer, both in PDF and in Excel spreadsheet format, which were also stored on his computer. 42The software program was capable of selecting either the whole of the data dump or particular parts of it. Once selected it could place the data into a "report" capable of being read on the computer in one of three formats: (i) A PDF format. Once created it was unalterable. (ii) An Excel version in the form of an Excel spreadsheet. This version could be altered or manipulated and used to search and generate subsets of data in printed form. (iii) An HTML version (this version is not relevant to the present proceedings.) 43The program used by Mr Sobbi was accordingly capable of generating components of the data dump and produce it in a report form in accordance with the request that had been made by Dr Tan. 44Mr Sobbi in this case subsequently burnt a copy of the downloaded data report from his computer onto a CD-ROM of the SMS only. He additionally printed out a hard copy of selected parts of the Excel version in accordance with Dr Tan's request in relation to two of his patients, being the complainants MW and SB. Mr Sobbi provided Dr Tan with the CD-ROM and the printouts on 19 January 2012. 45When Dr Tan attended at the offices of NSI on 19 January 2012, he sought Mr Sobbi's advice on how to wipe the electronic memory of the Blackberry mobile phone. Mr Sobbi indicated that he would not carry out the deletion. Dr Tan subsequently intentionally caused the Blackberry mobile phone's memory to be wiped. This took place between the time of Dr Tan collecting the mobile phone from NSI on 19 January 2012 and the date of execution of a search warrant at his premises on 24 January 2012. 46On 23 January 2012, by arrangement between Detective Sergeant Stuart Thomson, New South Wales Police and Mr Van Der Poll, Dr Tan attended Chatswood Police Station where he was charged with offences relating to the patient SB. At the time of his attendance an iPhone in Dr Tan's possession was examined, which was found to contain communications between him and the patient MW and another patient. The phone was seized by police. Particular data on the iPhone is the subject of the claim for legal professional privilege - Schedule 4 to Dr Tan's affidavit.

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Execution of search warrants 47On 24 January 2012, police obtained three search warrants. One was executed at Dr Tan's residence at Milson's Point, another was at the offices of NSI in Market Street, Sydney and a third at a clinic which is not relevant to the present proceedings. The NSI warrant was obtained in response to a notification given by Mr Sobbi to the police that he had performed a forensic recovery of the data on Dr Tan's Blackberry mobile phone. This occurred after Mr Sobbi had read in a newspaper that Dr Tan had been charged and that police were seeking anyone with information to make contact. 48The search warrant for Dr Tan's residence authorised police to search, and seize the following materials: "1 x Blackberry mobile phone", "All electronic devices capable of storing text and image files including, computer hard drives, laptops, external hard drives, computer data discs flash drives and SD memory cards" and "Any patient record or clinical notes relevant to complainant being [names of patients identified including patients SB and MW]". 49The applications that were made by police for the issue of search warrants were based upon a stated belief that the plaintiff had, over an extended period, exchanged SMS messages and/or emails with patients, including in particular the patients SB and MW, and a third patient. The messages, it was stated, were sought for the purpose of obtaining evidence said to be relevant to the investigation of the alleged offences and the possibility of other offences. 50The evidence adduced in these proceedings established that police were not able to recover any relevant data from the Blackberry mobile phone, in particular data relating to SMS and/or email messages sent to or received by the Blackberry mobile phone. This is consistent with Dr Tan's account of him having deliberately wiped the data off his Blackberry mobile phone. 51During the execution of the search warrant at Dr Tan's residential premises, police also seized four bundles of handwritten notes, a Macbook Pro laptop computer and an iMac desktop computer. 52The handwritten notes are the subject of the claim for legal professional privilege in Schedule 1 to Dr Tan's affidavit. 53Certain documents on the laptop and desktop computers are the subject of the claim for legal professional privilege in Schedule 3 to Dr Tan's affidavit. 54Prior to the execution of the search warrant at NSI, Mr Sobbi had made a further copy of the reports stored on his computer onto a USB thumb drive. The USB thumb drive was seized by police pursuant to the NSI search warrant. The data on the USB thumb drive and the corresponding data on NSI's computer are the subject of the claim for legal professional privilege in Schedule 2 to Dr Tan's affidavit.

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Plaintiff's submissions (Schedule 2 material) 55In relation to Schedule 2, Mr Grant submitted that the claim of privilege was dependent upon the proper characterisation of the records seized under the warrants (Schedules 1, 3 and 4 are discussed below). They included electronic materials in particular the reports that came into existence as a result of the processes undertaken by Mr Sobbi. Mr Sobbi, it was submitted, was retained in order, in due course, to assist Mr Van de Poll in providing advice to Dr Tan. Relevant SMS message data and emails contained on his Blackberry mobile phone would provide Mr Van de Poll with a convenient compilation of relevant data. Accordingly, so the argument went, his request to Mr Sobbi in that respect was said to be much like an expert who is engaged to prepare a chart: "Let me explain it this way your Honour, a man takes a box to his solicitor. Inside that box are a number of blocks, word blocks that are all in a jumble. The solicitor says to the client, look, you need to go and see an expert and I want you to have prepared a chart so that the word blocks are in some sort of order that I can look at them and advise you in relation to them.": T 33. 56It was submitted that this is essentially what occurred through the work undertaken by Mr Sobbi. Mr Grant submitted in respect of the Schedule 2 records: "... Schedule 2 really are 'a chart' and that chart has been prepared for the purpose... of the plaintiff's lawyer looking at the 'chart' and being able to advise him in relation to contact between Dr Tan and his patients, the subjects of the complaints": T 33. 57Mr Grant submitted, in particular, that the Excel spreadsheet was a "chart" in this sense. At the time of his attendance on Mr Sobbi Mr Grant noted Dr Tan was aware of only two complaints having been made by his former patients, being the complaints of MW and SB. 58Mr Grant accepted that his client knew that, at the time of engaging Mr Sobbi, at least two complaints had been made against him: "... but because of the nature of the practice that the Doctor had engaged in, there was the possibility of other complainants even at that first time of 21 November. And the Doctor's evidence is along the lines of 'in discussion with my lawyer I was made aware that my therapeutic technique with the possibility of other complainants'. So that is why we need to advance that to the 18th when he goes to see the expert for the production of the chart.": T 35. 59Mr Grant submitted that the plaintiff's subsequent knowledge of a second complaint prior to 18 January 2012 would provide reason for a solicitor to give advice to seek out an expert to prepare a "chart" in relation to both complainants: T 35. 60Mr Grant submitted that the common law test for legal professional privilege was satisfied in relation to the data concerning the two complainants. The data in relation to them, he submitted, were brought into existence by Mr Sobbi for the dominant purpose of receiving legal advice and for use in relation to any complaint proceedings then in contemplation. So far as communications with other patients were concerned, Mr Grant submitted that the therapeutic techniques that Dr Tan employed with respect to a particular class or type of patient was a relevant consideration. In that respect it was submitted: "...he is going to see an expert about getting as much information as he possibly can to assist his solicitor in relation to any complaints that might come before Health Commission because there is no police involved in it at that stage:" T 37. 61In support of the submission it was contended that there had been other patients who were treated by Dr Tan by the application of specific therapeutic techniques. It was submitted that he held a "genuine belief" that there existed a possibility that other complaints could emerge. As a means of protecting himself, it was submitted, he had one opportunity of obtaining a report in relation to other potential claimants.": T 37. 62Mr Grant relied upon Dr Tan's affidavit evidence of his affidavit sworn on 5 September 2012. Paragraphs [13] and [26] of the affidavit were said to be relevant on this point. 63The evidence, however, does not establish that Mr Van Der Poll requested or suggested that Dr Tan arrange for an extraction of electronic data from the mobile phone in relation to "potential" complainants. In paragraph [4] of his affidavit sworn on 31 August 2012 Mr Van Der Poll said that he asked Dr Tan to have extracted from his phone all email and SMS communications between him and "relevant patients". In cross-examination Mr Van Der Poll conceded that the discussions with his client prior to the extraction of the data taking place had focussed upon one complainant, namely, MW with the possibility that there was or would soon be a second complainant. 64Mr Grant further submitted that what he referred to as "the chart" produced by Mr Sobbi for Dr Tan was not "a copy document:" T 39. I took this as a reference to the reports on Mr Sobbi's computer and those produced for Dr Tan. 65His submission was that "the chart" was not a direct copy of "the base material" as the latter was completely unorganised or was unstructured data. "The chart," he observed, permitted the solicitor to examine "a readable document" and then give advice in relation to it: T 39. 66The submission emphasised that the binary material that Mr Sobbi kept on his computer only came about by it being downloaded from the Blackberry mobile phone. 67Mr Grant observed that what Mr Sobbi provided to police under the warrant (other than the binary material in the data dump) was identical to what had been provided to Dr Tan. Even with respect to the binary material consisting of the data dump, it was submitted the police had been able to obtain it only because the plaintiff had consulted Mr Sobbi to have a "chart" produced. That, it was argued, had been Dr Tan's dominant purpose in obtaining the material. The binary material held by Mr Sobbi, he contended was privileged: T 42. The police, it was submitted, should not be allowed to use that material to extract their own "charts" as that would have the effect of circumventing the privilege.

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The defendant's submissions (Schedule 2 material) 68Mr Bromwich SC on behalf of the defendant relied upon the Defendant's Written Outline of Submissions filed on 4 September 2012 together with oral submissions made on 6 September 2012. 69Specific submissions in relation to documents and other records referred to in Schedules 1, 3 and 4 are considered later in this judgment. The discussion that follows deals with the principal submissions concerning the data in digital form on the memory of the Blackberry mobile phone and the various representations of it that were brought into existence by Mr Sobbi. 70The defendant Commissioner sought access to the Blackberry mobile phone data and to all electronic devices capable of storing text and image files on the basis of a belief held by investigating police that Dr Tan had, over an extended period of time, exchanged SMS messages and/or emails with patients including those patients identified in this judgment with the initials SB, EF and MW. The submission was that these messages were likely to constitute evidence that was relevant to the investigation of the alleged offences and possibly other offences. 71Police, if permitted, seek to use the materials in circumstances where they have been unable to recover any relevant data from the Blackberry mobile phone, in particular, data relating to SMS and/or email messages sent to or received via that device: Defendant's Written Submissions at [18]. 72In relation to the Blackberry mobile phone data, it was submitted that at no stage was Dr Tan going to be providing to his solicitor what was referred to as the first generation copy of the data downloaded to Mr Sobbi's computer. That was the copy that, through the downloading process, had been rendered readable without specialist software. Moreover, it was argued, the Blackberry mobile phone data was not, in the relevant sense, "created" merely by being extracted or downloaded by Mr Sobbi. That was said to be the case even when the data was made accessible using an ordinary computer without special software by being put into the form of a PDF or Excel report: Defendant's Written Submissions at [23]. 73The defendant conceded that legal professional privilege may exist with respect to one or more of the electronic or paper copy documents given by Mr Sobbi to Dr Tan. This concession was made on the basis that such materials were created for the purpose of being provided to Dr Tan's solicitor to enable him to obtain legal advice from Mr Van de Poll. However, no such protection, it was contended, was bestowed upon the original download of the Blackberry mobile phone data on Mr Sobbi's computer, nor upon the copy of it seized by police pursuant to the NSI search warrant. The claim of privilege in respect of the Blackberry mobile phone data in the hands of the police (Schedule 2), it was contended, did not satisfy the common law test for legal professional privilege: Defendant's Written Submissions at [25]. 74In oral submissions Mr Bromwich, inter alia, relied upon the following matters: The Blackberry mobile phone was the original repository of the data. Had it not been wiped by Dr Tan there would be little doubt that it would be the original material over which there would be no privilege; The data dump plainly was not created or brought into existence for the dominant purpose required to maintain the claim of legal professional privilege. Making allowance for an adjustment on account of modern technology and descriptive terms that apply to it (in particular, the distinction between paper "documents" and digital data in its various forms) it was contended that the data dump should be regarded as original data; The data dump was seized by police and was put onto the drive that was also seized under the search warrant. Police seek access to both. A mere reorganisation of material of digitally recorded data (SMS messages, emails, etc) by the computer used by Mr Sobbi, as for example presenting the data in chronological order but without any change to the data itself, did not involve the creation of data. The computer program put the data into a particular order but otherwise it remained as original data. It was submitted: "It is a representation of the original. To call it a copy is a misnomer because it is really a representation of the original ...": T 46. 75In his oral submissions, Mr Bromwich observed that once the data had been downloaded Mr Sobbi was then in a position to elect to generate a report of the data by making a selection. That could be a report of the whole of the data or a selected portion of it. Beyond making that selection (said to be akin to selecting data to print from a computer) there was nothing at all added to it. In the present case of the three reports generated the PDF format retained the same data as the data dump being capable of being read as such from any computer. 76Accordingly, Mr Bromwich submitted that: (1) The data dump was original data or a representation of the original and therefore not privileged. (2) The Excel version which, after 19 January 2012 remained on Mr Sobbi's computer, was not a copy made for Dr Tan. It is simply a further representation of the data dump. Although it is in a different readable format from the data dump, it nonetheless is a representation of the original. (3) Although the decision in Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; 188 CLR 501 did not contemplate "multiple originals", that is what in fact one is dealing with with digital data (the originals being identical.) Accordingly the two PDF reports and the SMS report contained within Mr Sobbi's computer are simply different representations of the same original data. 77Finally Mr Bromwich acknowledged that if I were to accept the initial submission on behalf of the Commissioner, namely that the data dump is to be regarded as original data and is not privileged, then that would be sufficient for the defendant's purposes as police forensic specialists have the technological capacity to be able to generate reports afresh upon the basis of the data dump, which it was contended was not protected by the privilege. 78An alternative submission was relied upon by the defendant. Even if privilege protection might otherwise extend to the Blackberry mobile phone data on Mr Sobbi's computer and the copy of that data given to the police (and it has to be both to be of any value to Dr Tan), it was submitted that because the original data on the Blackberry mobile phone had been deliberately destroyed by Dr Tan, the public interest in recognising and preserving any such privilege must give way to the greater public interest. Reliance in this respect was placed upon dicta in Propend (supra) of Brennan CJ at 512.3, McHugh J at 555.3 and Gummow J at 570.5: Defendant's Written Submissions at [26].

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Consideration a) Digital data in its various forms 79These proceedings raise questions of importance concerning the application of established principles that determine legal professional privilege claims to electronic data captured and stored in the electronic memory of a mobile phone. Whilst in Propend (supra), the High Court enunciated and applied those principles to original and copy documents, the Court was not required to discuss their application to information in digital or other electronic forms. 80In the present case the above principles are to be applied beyond documentary communications, to digital data. 81In Propend, Kirby J observed: "Because of advances in information technology, compulsory process will now, increasingly, involve the multitude of material forms used in effecting communication ranging from photocopies or original documents to audio/video tapes and computer software. Necessarily, the doctrine of legal professional privilege must adapt to a world in which these media are the stuff of disputes concerning criminal and civil obligations and the rights of citizens." (At p 585). 82In that case Kirby J also noted: "Far from reducing the argument for extending the privilege to copies because of technological developments, such advances make it essential that the law acknowledges their existence and that they need to be provided to lawyers in the course of a client's securing appropriate legal advice." (At p 588). 83Those observations are of increasing relevance given continuing technological developments now occurring in a digital world that have and continue to produce advances in electronic communications including associated processes for storing, extracting, transmitting, filtering and reproducing digital data. 84The importance of legal professional privilege has, of course, been emphasised in many decisions of the High Court and of other courts. However, a number of cases have also sounded a warning against widening the privilege lest the need for the courts to have access to all relevant documents would be unduly undermined: Propend, (supra), per Toohey J at p 527. His Honour cited the following statement by Wigmore on Legal Professional Privilege (at p 121): "It is worth preserving for the sake of a general policy, but it is nonetheless an obstacle to the investigation of the truth. It ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle." (p 527). 85Toohey J in Propend also observed (at p 527) that: "Legal professional privilege is an exception to that principle (being a reference to the importance of disclosure and production of all relevant documents) and can only be justified as serving the public interest which gives rise to the exception." 86Legal professional privilege, of course, is concerned with protecting the confidence of communications between lawyer and client: Propend per Toohey J at p 529. 87In Propend McHugh J observed: "This point, however trite it may seem, is fundamental to the determination of the present appeal. Much of the confusion present in the case law arises from a failure to apply it. Legal professional privilege is concerned with communications, either oral, written or recorded, and not with documents per se." (At p 552).

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b) Legal professional privilege: principles 88Before considering the application of relevant principles concerning legal professional privilege in relation to the mobile phone forensic data recovery effected by Mr Sobbi, it is important to identify the primary principles that apply generally to the privilege. 89These may be stated as follows: (1) The traditional rationale of legal professional privilege is that people should be able to seek legal advice confident in the knowledge that their disclosure to legal advisers will not be used against them: Saunders v Commissioner of Australian Federal Police (1998) 160 ALR 469 at p 471 per French J (as his Honour then was). (2) The operation of the privilege is to keep secret communications between client and solicitor. Its purpose is to induce the client to retain the solicitor, seek the solicitor's advice and make a full and frank disclosure of relevant circumstances to the solicitor: Saunders, supra, at p 471. (3) The application of the privilege extends to documents which involve or include a compilation by the client for communication to the solicitor of information about the client's affairs some of which may be on various public records: Saunders at p 471. (4) The confidentiality attaches to the communication rather than its content hence a document brought into existence for the purpose of recording transactions and subsequently passed to a solicitor does not thereby attract legal professional privilege: Saunders p 472. (5) Consistently with the purpose served by the privilege, notes, drafts, charts, diagrams, spreadsheets and the like prepared by a client as a way of marshalling information to be the subject of confidential information to the client's solicitors should also attract its protection: Saunders. (6) The privilege extends beyond material that is not literally a communication or manifestly the record of a communication. There are many instances of protection being extended to such material. Examples include the draft letter that never leaves the solicitor's office, the draft agreement and the draft statement of claim are illustrative: Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 at 333 per Anderson J. (7) The reason why such material is protected has been stated to be that disclosure of it will, or will tend to, reveal the privileged communication: Attorney-General (NT) v Maurice [1986] HCA 80; 161 CLR 475 at 496 per Dawson J. (8) If written communications are to be privileged they must still be confidential communications between solicitor and client made for the purpose of advice or for the purpose of use in existing or anticipated litigation: O'Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1 at 22-23. (9) In Mann v Carnell [1999] HCA 66; 201 CLR 1 at 31, McHugh J, in relation to an argument as to whether privilege attached to a copy of an original that was privileged, stated: "... in my opinion, the controversy in the case is a sterile one once it is recognised that it is the communication which is or may be privileged, not the document recording it." At [95]. His Honour referred to an observation to that effect by Gaudron J in Propend (supra) at 543. 90Whether a copy of a privileged document is also privileged where sent or communicated to another, the question is then whether the copy was communicated for a privileged purpose: Mann v Carnell at [114-124]. "[114] The rationale for the head of legal professional privilege which protects communication from a third party to the client or the lawyer made in connection with the litigation is related to, but distinct from, that discussed in Grant v Downs. The rationale for the second head of legal privilege arises from the need to maintain, in an adversary system of litigation, the freedom of the lawyer and client to make such investigations and enquiries and to engage in such preparation as they think fit in order to further their case. A party to litigation should not be forced to prepare his or her case knowing that statements, advices and other documents, which have been created, may be required to be disclosed to the other party who can then make use of the documents for his or her own advantage..." [116]... common law doctrine which would extend the scope of legal professional privilege must not go beyond the rationales for the privilege. Any extension of the scope of the privilege beyond that which is necessary for its rationales to be realised is an abrogation of the common law's basal pursuit of truth which is not justified by any countervailing consideration... "[124] The other rationale of privilege is to ensure that the adversary system is preserved by not disclosing one party's preparations for litigation to the other party ... this objective is endangered by a rule which declares that the voluntary disclosure of privileged information to any stranger to the privilege results in a waiver of the privilege. Before disclosing information to a stranger to the privilege, the client must make a personal choice as to whether the risks associated with the other side seeing the document outweigh the advantage accruing to the client as a result of voluntarily disclosing the document to a stranger to the privilege."

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d) Whether legal privilege attaches to extracted and transmitted data 93Legal professional privilege, as earlier noted, attaches to documents (and other records) that come into existence for the dominant purpose of communicating or submitting them to a person's lawyer for use in anticipated litigation or to obtain or give legal advice. Data, such as binary data on the electronic memory of a mobile phone, is, of course, original data that did not come into existence for that purpose. It is capable of being transmitted and stored in more than one location. As well as being stored in the electronic memory of a mobile phone itself, it may also be stored, through electronic transmission, to devices, such as a UFED and to a computer. 94The downloading of binary data from the memory of a mobile phone does not create a "copy" of that data. It merely transmits it from the electronic memory in the mobile phone to another location or device, in this case to a UFED. In the circumstances the binary data is not, in my opinion, the subject of legal professional privilege in either location (that is, in either the electronic memory of the phone or as transmitted and recorded on a UFED). The original data, whether before or after it was transmitted to the device as a data dump was not a communication made for the purpose of seeking or giving legal advice nor was it brought into existence for use in anticipated litigation. 95After the extraction was completed Mr Sobbi then spoke to Dr Tan and sought his instructions. He told him that the extraction has been completed and he would prepare a report which would be placed on a CD-ROM. Dr Tan inquired as to whether Mr Sobbi could filter out information by reference to a name or phone number and have such information placed in a separate report. Mr Sobbi explained that what is referred to as the "main report" could not be manipulated. However, he told him that there was available the option of placing all SMS messages onto an Excel spreadsheet. That program would provide a drop down menu by which it was possible to select a name from the spreadsheet. Dr Tan indicated that he wanted that option. 96Mr Sobbi proceeded to create an Excel version of the SMS messages on his computer and when created that version was stored on his computer. For that purpose Mr Sobbi said Dr Tan had given him the names of two persons that he was interested in. Mr Sobbi proceeded to isolate the messages for the first person who in this judgment has been referred to as "MW". Mr Sobbi printed those messages out for Dr Tan. He then isolated messages for a second person ("SB") and printed those as well. In his statement Mr Sobbi stated that he could not recall the name of the second person. However later he told police that he recalled the name of the second complainant being the person referred to in this judgment as "SB". 97In summary, the "reports" generated or produced by Mr Sobbi on his computer at the request of Dr Tan were: (1) A main report which contained all the downloaded data being the PDF version and which was created on his computer. The contents of that report included SMS, contacts, call logs, web histories, installed applications and emails. Mr Sobbi said he gave Dr Tan a copy of the main PDF version. (2) A PDF (specific) version on a CD-ROM filtering out particular data and containing only data relating to SMS messages. (3) An Excel spreadsheet - filtered for SMS messages only in respect of two persons, MW and SB. This was also provided to Dr Tan. Mr Sobbi also printed out copies of the Excel spreadsheet which he gave to Dr Tan in respect of both MW and SB. 98The data on Mr Sobbi's computer which was seized by police comprised the following: (1) The memory dump of the data contained on the mobile phone downloaded on 19 January 2012 (main report); (2) The PDF version (unfiltered) on Mr Sobbi's computer; (3) The PDF (filtered) version containing SMS messages only; (4) The Excel spreadsheet in respect of SMS messages for two persons, MW and SB.

[17]

e) Copies of data 99A document that is created with the requisite dominant purpose may attract legal professional privilege even if it is a copy of a document that is not privileged. A copy of a document which meets the dominant purpose test, when provided to a lawyer for the purpose of obtaining legal advice or for use in legal proceedings, is a communication to the lawyer: Propend (supra) per Gaudron J at 543-4. McHugh J at p 554 in Propend observed that a client's conduct in giving a copy of a document to his lawyer is as much a part of the communication between lawyer and client as an oral summary of the original document would be part of such a communication. 100In Propend (supra) Brennan CJ explained that for the purpose of determining whether a copy document was privileged it is necessary to look at the purpose for which the document which recorded the information came into existence, not the purpose for which the information was obtained: "... there must be something in the circumstances in which a copy of a non-privileged document came into existence in order to attach privilege to the copy ..." (At p 529). 101In Barnes v Commissioner of Taxation (Cth) [2007] FCAFC 88; 242 ALR 601, the Court (Tamberlin, Stone and Siopsis JJ) observed that in respect of copies of documents the test is whether the copy in question came into existence for the dominant purpose of obtaining legal advice or assistance: at [5]. 102Brennan CJ in Propend (supra) observed that a copy document may be contained within a collection of documents, or there may be something else about the copy which could indicate the manner in which the litigation in question is to be conducted by the lawyer. Such circumstances may provide a basis upon which legal professional privilege attaches to the copy. Brennan CJ also observed in that case stated that while the exercise of professional skill in the assembly of material does not provide a very certain test, it nonetheless was considered to be a necessary qualification to the general proposition that a copy document does not attract privilege if the original is not privileged: Dawson J at p 519 and Toohey J at p 530. 103Toohey J referred to the approach taken by the primary judge and members of the Full Court of the Federal Court in that case and observed: "All their Honours were of the view that the submission to a legal adviser of a copy of a non-privileged document does not of itself attract legal professional privilege. There has to be something more. The difference between the primary judge and the members of the Full Court ... is this. Davies J confined what I have referred to as the 'something more' to situations in which the legal practitioner brings to bear his or her particular legal expertise in the selection of the copy documents for which privilege is claimed." (At p 531).

[18]

f) Is the data dump privileged? 104Whether privilege attaches to the "data dump" depends both upon its nature and the purpose for which it was created. 105Mr Bromwich submitted that the data dump should be regarded as "original" material and not as a copy of an original emphasising that the complete download of the material by means of the UFED comprised exactly the same information as that stored in the electronic memory of the Blackberry mobile phone. 106The distinction between an "original" document and a copy document is not readily applicable to the downloading and transmission of information in digital form. On the evidence in this case the data downloaded from the plaintiff's Blackberry mobile phone is not comparable to a photocopy of an original document. The downloading of the data is described in the Cellebrite manual tendered in evidence, as a "physical extraction" effected by the Device. The data recorded on the electronic memory of the mobile phone is captured into a hex file (or files). It is then capable of later being analysed and decoded using the UFED Physical Analyzer application. 107The binary data constituting the electronic memory of the plaintiff's mobile phone, which after downloading was transmitted to Mr Sobbi's computer by means of the Program utilised by Mr Sobbi is not, in my opinion, privileged merely upon the basis that the plaintiff's lawyer subsequently received a "report" which was derived from the data dump extracted from the mobile phone. The initial extraction and transmission of all the stored data may be seen as preparatory only to the production of the ultimate reports sought by Dr Tan. In other words, the initial extraction and transmission was not the data sought and ultimately produced for his lawyers. 108The binary material constituting the "data dump," of course, was incapable of being read and understood in the form it possessed once extracted by means of the UFED. When transmitted to Mr Sobbi's computer though translated into readable form its content was unaltered. Once transmitted the computer program operated and by it the data was decoded and reorganised thereby enabling it to be used to produce "reports", either as a PDF version and/or and Excel spreadsheet version. 109Accordingly the data having been extracted and downloaded onto the UFED and its subsequent transmission in the program to Mr Sobbi's computer in decoded format could not, in my opinion, on the evidence be considered to have been a "communication" with lawyers nor was it created for that purpose. As McHugh J explained in Propend, (supra), "communications" with lawyers will usually have various components. These will sometimes include materials that are prepared for a lawyer. The determination of a claim to legal professional privilege centres upon the circumstances as to the making or creation of the data that is communicated. These circumstances determine whether the information was in fact a communication or an element in a communication between client and lawyer as to contemplated or pending litigation or for the purpose of obtaining or giving legal advice: Propend per Gummow J at p 527. 110In Baker v Campbell [1983] HCA 39; 153 CLR 52 at 122, Dawson J observed: "Legal professional privilege attaches only to communications made for the purpose of giving or receiving advice or for use in existing or anticipated litigation. Moreover, if the communication in question is in the form of a document submitted by a client to his solicitor for use in existing or anticipated litigation, privilege will attach to it only if it comes into existence solely for that purpose. The privilege cannot operate to put beyond the reach of the law documentary or other material which has an existence apart from the process of giving or receiving advice or the conduct of litigation." (Emphasis added). 111Dawson J in Propend (supra) also emphasised that a document which has been brought into existence otherwise than as a communication between client and legal adviser seeking or giving advice or for use in existing or anticipated litigation does not attract the privilege: "It is not a communication which has its origin in that confidential relationship between client and legal adviser that it is the purpose of the privilege to protect ..." (At p 516). 112In Shaw v David Syme & Co [1912] VLR 336 the transcript of shorthand notes of court proceedings which were held in public was held not to attract legal professional privilege, even though the transcript was brought into existence for the purpose of enabling solicitors to advise in respect of a libel action and to conduct the action. The transcript was created as a copy of the shorthand notes. Dawson J in Propend (supra) referred to the decision in that case (at p 517) and stated: "... what is important is that it was held that the original was not a communication seeking or giving legal advice nor, being merely a record of proceedings which took place publicly and independently of anticipated litigation, was it brought into existence for the purpose of the anticipated litigation ..." 113In the present case the full range of data in digital form downloaded and then transmitted to the receiving computer was not sought for the dominant purpose of use in anticipated legal proceedings or for use in obtaining legal advice. It was only after the downloading/transmission was completed that Dr Tan provided instructions to Mr Sobbi indicating that he required limited components of the data (SMS messages in particular with two patients). These he intended to provide to Mr Van de Poll. There was no intention that the whole of the stored data be sent to or form part of any communication with Mr Van de Poll. 114Dawson J in Propend, (supra), referred to the following observations of Madden CJ in Shaw v David Syme, (supra): "The document in question is in effect merely a translation of a document which of itself and untranslated would be useless. Being in shorthand, it has to be brought into such a condition that ordinary persons can read it. Therefore it is, as I have said, merely a translation. We think this transcript was not brought into existence for the purposes of the litigation within the true meaning of the rule which given the privilege here claimed ..." 115Dawson J in Propend observed that it was accepted in that case that if an original document did not attract legal professional privilege, a mere copy could not do: "... The reason for this is apparent from the emphasis placed by Madden CJ upon the fact that the copy was a mere translation. The communication constituted by the copy - the translation - was the same as it was in the case of the original. The information conveyed by the one was no more or less than the information conveyed by the other, so that the copy could be in no better position than the original so far as privilege is concerned." (At 517-518) 116The analysis in Propend emphasised the reasoning relevant to the privilege, that is to say that it is the contents of a document - the information which it communicates - is the important thing. The copy of a document (as distinguished from its contents), his Honour observed, is not important, "... for legal professional privilege attaches to the contents of the document rather than the document itself." (At p 518) 117As discussed above, it is well accepted that documents that are copies of unprivileged originals may attract privilege by reason, as in the example discussed above, of their selection in the making of the copies by a solicitor (which selection might reveal information as to the basis upon which the solicitor was proceeding and thus the nature of his advice to his client.) A mere copy of an unprivileged original document does not per se necessarily reveal such information. In such a case the copy is no more privileged than the original. 118As observed in Propend, the relationship between client and legal adviser is not impaired and the interests of justice are best served if a client or his legal adviser on his behalf is compelled to disclose a copy of a document when production of the original might be compelled without any grounds or objection. 119Even if the data dump could be regarded as a "copy" of the original, it would not, in my opinion, meet the required test for legal professional privilege because the "data dump" was not brought into existence for the dominant purpose of seeking legal advice or assistance or for being "provided to a lawyer" for a stipulated purpose. As discussed above it was only following Dr Tan's instructions as to what he required that the data was transmitted onto the computer and thereafter that, "reports" were produced. 120Both the binary data (the data dump) and the decoded version as transmitted to Mr Sobbi's computer, in other words, had an existence independent of and unrelated to the seeking of legal advice.

[19]

Destruction of original mobile phone data 121Even if the data transmitted from the UFED to Mr Sobbi's computer including the Excel and PDF spreadsheets were, contrary to the findings I have made, to be considered to be copies of the data stored on Dr Tan's Blackberry mobile phone, there remains the issue as to whether the claim for privilege failed on the basis of Dr Tan's action in wiping the data off his Blackberry mobile phone. 122It was submitted for Dr Tan that the search warrant, in particular the warrant executed at the premises of NSI, should not be allowed to circumvent the privilege held by the plaintiff. Mr Grant again relied upon the submission to the effect that what was produced by Mr Sobbi was not in fact a copy (or copies) of a document or documents. Mr Grant emphasised that at the time the phone was wiped, there was no police involvement from the perspective of Dr Tan. He was not spoken to by police until 23 January 2012 and was charged on that date. The search warrant was executed the next day, on 24 January 2012. 123Mr Grant further submitted that to say there had been "a deliberate wiping" of the data off the mobile phone to ensure that privilege was retained in the copy rather than in the source material was "a long bow" for the defendant to be suggesting. Reliance was placed upon evidence that Dr Tan said he wiped the mobile phone because of the "mental angst" he had in relation to the complaint and the telephone and he wanted to get rid of the phone by selling it: T 41. In his affidavit Dr Tan said that the continued receipt of SMS messages from patients and his continued retention of the mobile phone caused "continuous anxiety for me": at [21]. 124The evidence establishes that Dr Tan specifically intended to wipe the data from his Blackberry mobile phone following his knowledge of the complaints by MW and SB. His actions in wiping the data destroyed it in the sense that the data was no longer recoverable. In those circumstances I consider he is not entitled to maintain privilege in the copy of the transmitted data from the UFED to Mr Sobbi's computer. 125In Propend, (supra), McHugh J observed: "Moreover, if a party copied a non-privileged document with the intention of destroying the original, the copy would not be privileged even if it was also made for the sole purpose of obtaining legal advice or for confidential use in litigation. In that situation, the conclusion is inevitable that one of the purposes of making the copy was to ensure that the maker could safely destroy the original yet at the same time retain a copy of the underlying transaction." At p 555. 126In the present case it is clear on the evidence that Dr Tan intentionally destroyed the memory of his Blackberry mobile phone by wiping it with the knowledge of the abovementioned complaints having been made. By that time he was aware that material including SMS messages were at least potentially relevant to the complaints. Whatever be his precise motives, the balance to be achieved between the public interest in maintaining legal professional privilege on the one hand and the public interest in the administration of justice on the other, in my assessment, leads to the conclusion in this case that the privilege is not maintainable in respect of any "copies" of the original data on the plaintiff's mobile phone.

[26]

Schedule 2 136The privilege claim in respect of items to which this Schedule relates is expressed in the following terms: "Anything provided to 'National Surveillance and Intelligence' (NSI) and/or a related party as well as anything retrieved, produced or created by NSI in relation to the Blackberry mobile phone, including but not limited to the PDF document and Excel spreadsheet that were brought into existence on Dr Tan's instructions to Navid SOBBI on or about 18 January 2012." 137In relation to the items covered by this claim for privilege, the submission was that Dr Tan was advised by his lawyer to obtain a copy of text messages sent from his Blackberry mobile telephone and received from the complainants and provide the lawyer with a copy of the same. 138Legal professional privilege was claimed in respect of the "data dump" material extracted from Dr Tan's Blackberry mobile phone to the UFED. For reasons set out above I have concluded that the claim for privilege in respect of that material is not maintainable. 139Legal professional privilege was also claimed in respect of the electronic data transmitted on 18 January 2012 from the UFED to Mr Sobbi's computer. 140For reasons set out I have concluded that both the data dump and the data transmitted from the UFED to Mr Sobbi's computer is in the nature of original material and is not the subject of legal professional privilege. 141Legal professional privilege is claimed in respect of the PDF and Excel spreadsheet versions produced by Mr Sobbi on 19 January 2012. These versions are said to be confidential communications between Dr Tan and his lawyers for the dominant purpose of the latter providing legal advice to Dr Tan. 142I have concluded that the PDF and Excel versions were brought into existence for the dominant purpose of them being provided by Dr Tan to his lawyer for advice and use in respect of the complaints by SB and MW. The PDF and Excel versions in electronic form and in the form of printouts are accordingly protected by the privilege claimed.

[29]

Declarations and orders 151I make declarations in the following terms. [The references to the Schedules in the declarations are references to Schedules to Dr Tan's affidavit sworn 5 September 2012.] (1) The 19 pages of handwritten notes made by Dr Tan and identified in Schedule 1 as "Bundle 1" are subject to legal professional privilege. (2) The handwritten notes of Dr Tan, "Bundle 2", on Intercontinental Hotel letterhead in Schedule 1 are subject to legal professional privilege. (3) The document described in "Bundle 3", being one A5 page of handwritten notes in Schedule 1, is subject to legal professional privilege. (4) Pages 1 - 4 inclusive in Bundle 4 are subject to legal professional privilege. (5) In respect of Schedule 2 - the digital data constituting the "data dump" extracted by the UFED on 19 January 2012 is not protected by legal professional privilege. (6) The data extracted from Dr Tan's mobile phone by the UFED and subsequently transmitted on 19 January 2012 from the UFED to Mr Sobbi's computer, included as part of Schedule 2 is not protected by legal professional privilege. (7) The PDF and Excel spreadsheets based on or derived from the data extracted from Dr Tan's mobile phone were brought into existence for the dominant purpose of Dr Tan's lawyer providing him with legal advice and for use in any proceedings in respect of the two complaints, by MW and SB. The PDF and Excel versions are protected by legal professional privilege. (8) The printout copies of the two spreadsheets contained within the PDF and Excel versions were produced for the dominant purpose of being provided to Dr Tan's lawyer for the purpose of legal advice and for use in respect of any proceedings arising from the complaints of SB and MW and accordingly are protected by legal professional privilege. (9) The documents in Schedule 3 were brought into existence for the dominant purpose of being provided to Dr Tan's lawyer for the purpose of obtaining legal advice and as necessary for use in legal proceedings. Those documents are protected by legal professional privilege. (10) The document in Schedule 4, item 7, is protected by legal professional privilege. (11) The document in Schedule 4, item 7, is not protected by legal professional privilege. Order (1) Leave to file further affidavit if the claim for legal professional privilege in respect of page 5 of Bundle 4 is pressed. (2) I grant liberty to either party to apply in respect of the form of the declarations made and set out above. (3) I reserve any question of costs.

[30]

Appendix to judgment The documents and other materials identified in Schedules 1, 2, 3 and 4 as follows: "Schedule 1 Handwritten documents held by North Sydney Local Court, comprising of: (a) 'Bundle 1' - Nineteen (19) pages of handwritten notes in black ink on A4 white paper (b) 'Bundle 2' - Four (4) pages of handwritten loose notes on Intercontinental letterhead inside a white A4 cardboard folder that is marked 'MW' (c) 'Bundle 3' - One (1) A5 page containing handwritten notes (d) 'Bundle 4' - Five (5) pages of handwritten notes on A4 loose leaf hole punched paper Schedule 2 Anything provided to 'National Surveillance and Intelligence' (NSI) and/or a related party as well as anything retrieved, produced or created by NSI in relation to the Blackberry mobile phone, including but not limited to the PDF document and Excel spreadsheet that were brought into existence on Dr Tan's instructions to Navid SOBBI on or about 18 January 2012. NOTE: The documents/ records described as "Schedule 2 (Blackberry downloaded by Navid Sobbi)" in the letter from Nyman Gibson Stewart Lawyers dated 13 September 2012 and as contained in a lever arch folder of documents entitled "Additional Documents - Schedule 2," separated by tabs 1 - 6 are the subject of Schedule 2. Schedule 3 1. Document in folder identified on X0000767060 Mac Book Pro A1286: a. File 4 John Vanderblom.rtf 2. Documents in folder identified on X0000767082 iMac: a. MacintoshHD/Users/MingTan/Desktop/4 John Vanderblom.rtf b. MacintoshHD/Users/MingTan/Documents/4John Vander Blom.R&R c. MacintoshHD/Users/MingTan/Documents/Boundary Violations.doc d. MacintoshHD/Users/MingTan/Documents/HCCC questions.doc e. MacintoshHD/Users/MingTan/Documents/MW formulation.doc f. MacintoshHD/Users/MingTan/Documents/Not normal or regular practice to.doc g. MacintoshHD/Users/MingTan/Documents/Self view of own mental health.doc h. MacintoshHD/Users/MingTan/Downloads/MW 15.11.11 for Ming.doc.pdf i. MacintoshHD/Users/MingTan/Documents/HCCC extensionrequest.doc Schedule 4 1. iPhone Report Call Log: a. Call logs identifying dates and times of phone discussion between Dr Tan and his lawyer 2. iPhone Report Contacts: a. Contact details of Dr Tan's lawyer 3. iPhone Report Emails: a. All email messages which include advice and responses between Dr Tan and his lawyer b. An email between Dr Tan and his father (Eng-Kong Tan) dated 11 January 2012 which outlines points that should be raised with Dr Tan's lawyer for the purposes of legal advice c. An email from Mechelle McCredie to Dr Tan dated 15 November 2011 which attaches a documents setting out the dates of consultation and payments received from MW d. All email communications between Dr Tan and the four complainants - EF, MW, SB and JC."

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