CONSIDERATION
25 I have inspected the documents and considered them in the light of Mr Ansell's evidence and the submissions that have been made in respect of them.
26 In my view legal professional privilege does not attach to documents 1 to 5, substantially for the reasons advanced by the applicants.
27 The privilege that has been claimed is that of the respondent and of no other person. The relevant purpose for the creation of the document must be referable to the particular privilege that is claimed. In my respectful view, it is not sufficient that it be demonstrated merely that the purpose is a legal purpose, considered in some abstract way. The respondent did not contend for the proposition that advice in relation to claims that the "Lehman entities", as purchasers, might have for conduct that pre-dated March 2007, was legal advice or assistance to be given to the respondent, or that the respondent itself was or would be privy to any such advice or assistance. The evidence certainly would not sustain that proposition. I am satisfied on the evidence that the purpose for which each of documents 1 to 5 was brought into existence included a purpose that was foreign to the respondent, namely for the provision of advice or assistance to "Lehman entities".
28 Normally in relation to claims of privilege involving multiple purposes, a mix of legal and non-legal purposes is involved. In explaining the rationale in Grant for the rejection of the former principle that it was sufficient to attract privilege that one, not insubstantial, purpose was to obtain legal advice or assistance, Gleeson CJ and Gaudron and Gummow JJ in Esso (at [43]) said:
A reading of the joint judgment shows that a reason which influenced the decision was a concern that, in large corporations and public authorities, especially those with internal legal officers, routine reports and other documents prepared by subordinates for the information of their superiors would also, in the ordinary course, be provided to lawyers for the purpose of obtaining legal advice or assistance. It was regarded as unacceptable, and contrary to the interests of justice, that such documents should be privileged merely because one of their intended destinations was the desk of a lawyer.
29 Here Mr Ansell's evidence makes clear that the multiple purposes involved in the present case were all with respect to seeking and obtaining legal advice. But the purposes were nevertheless, properly characterised, mixed purposes. This necessarily meant that, if there existed an equal purpose for the creation of a document that was foreign to the respondent, it could not be said that the dominant purpose for its creation was to obtain legal advice or assistance for the respondent. Where there are multiple purposes of equal weight, none can be said to be the dominant purpose in the relevant sense: Federal Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 60 ATR 466 at [30]; AWB Ltd v Cole (2006) 152 FCR 382 at [106].
30 The respondent submitted that to deny the existence of the privilege in the present case would strike at the maintenance of claims for legal professional privilege involving communications within corporate groups. In that connection the respondent referred to the observations made in GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2000] FCA 593 and Seven Network Limited v News Limited [2005] FCA 1342 with respect to the maintenance of privilege concerning intra-corporate disclosures.
31 In GEC Lehane J (at [9]-[10]) said:
Before turning to the documents, it is convenient to consider whether, to the extent that communications recorded in them attracted privilege, the privilege has been waived. On the material before me, my view is that it has not. It is evident on the face of the documents that to a large extent they formed part of discussions within GEC's corporate group about the dealings leading to the present litigation and the contemplated litigation itself. To some extent - argument concentrated on this aspect - the purpose of the communications between GEC and its parent company may well have been to assist in deliberations about the treatment, in the group accounts, of matters arising from the disputes between the parties. To the extent that the documents reflect communications between GEC and its legal advisers, however, there is no suggestion that there was any intention to publicise the content of those communications outside the corporate group. The majority judgment in Mann includes, at 94, the following discussion of waiver at common law (once again, I shall omit the footnotes):
"Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is 'imputed by operation of law'. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large."
… If the present claims are looked at in that light, I do not think there is anything in the circumstances of the corporate deliberations, in the course of which the documents were prepared and sent, which is inconsistent with the maintenance of confidentiality in any privileged aspect of the communications or with GEC continuing to assert the privilege.
32 In Seven Network Graham J (at [26]) said:
In relation to intra-company disclosures of legal advice, any disclosure of the terms of such advice or the substance thereof from one officer to another will not constitute a "disclosure to another person" and thereby result in a loss by the client of the relevant privilege (see Arrow Pharmaceuticals Limited v Merck & Co Inc (2004) 210 ALR 593 at 597 [11] and [12].) In GEC Marconi Systems Pty Limited v BHP Information Technology Pty Limited & Ors [2000] FCA 593 Lehane J, applying Mann v Carnell [1999] 201 CLR 1, held that disclosures of such advice or the substance thereof by officers of one corporation within a group to officers of other corporations within that group or between different officers of another corporation within the group did not result in a waiver of the relevant client legal privilege (see judgment [6] - [9] and [12] (especially in respect of documents 0113 and 0527)). This is consistent with the general principle of common interest privilege (see the judgment of Giles J in Network Ten Limited v Capital Television Holdings Limited (1995) 36 NSWLR 275 at 279-283; see also Evidence Act s 122(5)(b)).
33 It is clear that the observations in those cases on which the respondent relied were directed to the question of the waiver of privilege and not to the antecedent and separate question of whether the privilege existed at all. It is the antecedent question that is in issue in the present matter.
34 Having reached this conclusion it is, strictly speaking, unnecessary for me to explore the related issue of whether a lawyer-client relationship existed, in any event, between Mr Ansell and the "Lehman entities". However, to the extent that it might matter, I am not prepared to find on the evidence that such a relationship existed. Mr Ansell made clear in his affidavit that his function was to provide legal and compliance advice to the respondent. The respondent sought to place reliance on paragraph 16 of Mr Ansell's affidavit in which he said:
Following the interview process described in paragraph 11 above, I along with other internal and external lawyers for [the respondent] and other Lehman entities provided advice to [the respondent] and other Lehman entities in relation to the matters outlined in paragraph 10. [The respondent] and other Lehman entities acted on that advice, including requesting the resignation of a number of [the respondent's] employees and notifying claims to [the respondent's] professional indemnity insurer.
35 However, the rolled-up fashion in which this statement is expressed makes it quite unclear whether he gave advice to "other Lehman entities" or whether those entities were simply the recipients of advice given by one or other of Mr Ansell or "other internal and external lawyers for [the respondent] and other Lehman entities". The authorities emphasise the need for focussed and specific evidence in order to ground a claim for legal professional privilege: Kennedy v Wallace (2004) 142 FCR 185; National Crime Authority v S (1991) 29 FCR 203. The fact that generalised evidence is not challenged in cross-examination does not mean that such evidence must be accepted: Barnes v Commissioner of Taxation (Cth) (2007) 242 ALR 601. Importantly, this statement says nothing about whether a lawyer-client relationship existed between Mr Ansell and "other Lehman entities" at the time the relevant documents came into existence. It is certainly not sufficient to establish merely that, at the time the documents came into existence, Mr Ansell owed duties of confidentiality in respect of the communications contained in them. More is required to establish a lawyer-client relationship at a relevant time: Apple Computer Australia Pty Ltd v Wily [2002] NSWSC 855 at [11].
36 I now turn to consider the claim made with respect to document 6. As I have noted, this document is in a different position. I have considered the document in light of Mr Ansell's evidence as to the purpose for which it was created. It is plain from an inspection of the document that it relates only to the legal position of the respondent. The applicants accepted, as a general proposition, that Mr Ansell's affidavit established that documents created or sent to him, or used by him, were in connection with his role in providing legal advice to the respondent. On this basis I am satisfied on the evidence that this document came into existence for the dominant purpose of providing legal advice to the respondent.