FEDERAL COURT OF AUSTRALIA

Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited

[2013] FCA 998

Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited

[2013] FCA 998

CORRIGENDUM

1    In the fifth sentence of paragraph 56 of the Reasons for Judgment, the word “explicit” should be replaced with “exclusive”.

Associate:

Dated: 15 October 2013

Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited

[2013] FCA 998

CORRIGENDUM

1    On the cover page of Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited [2013] FCA 998, the dates of hearing should read “12 and 20 September 2013”.

2    The Schedule appearing after the orders made by the court on 3 October 2013 in this proceeding should appear immediately after Order 2 and preceding Order 3.

Associate:

Dated: 8 October 2013

THE COURT ORDERS THAT:

1.     The claims of the third, fourth, fifth, sixth, seventh, eighth and ninth respondents that communications in the documents described in the schedule to Order 2 below are protected by legal professional privilege to which those respondents are entitled, and are so entitled to the exclusion of the second applicant, be upheld.

2.    The documents described in the schedule to this order, having been produced pursuant to subpoenas –

(a)    issued on 12 April 2013 and directed to Clayton Utz;

(b)    issued on 17 April 2013 and directed to PricewaterhouseCoopers Securities Limited; and

(c)    issued on 17 April 2013 and directed to UBS AG;

and any copy thereof so produced, not be released to, or made available for inspection by, any person without the written consent of the respondents mentioned in Order 1 above or order of the court.

SCHEDULE

The documents identified in Exhibit LZ-1 and in Exhibit LZ-2 to the affidavit of Leon Zwier sworn on 11 September 2013, with the exception of –

(i)    the documents identified in Annexure LZ-3 to that affidavit, save to the extent that those documents contain communications over which the fourth respondent maintains a claim of privilege; and

(ii)    the documents identified in Annexures JEL-5 and JEL-9 to the affidavit of Jonathan Edward Light affirmed on 19 September 2013, save to the extent that those documents contain communications over which any of the third, fifth, sixth, seventh, eighth and ninth respondents maintains a claim of privilege.

3.    The applicants pay the costs of the third, fourth, fifth, sixth, seventh, eighth and ninth respondents of the resolution by the court of the claims referred to in Order 1 above.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    By a contract made on 18 August 2011, the first applicant, Asahi Holdings (Australia) Pty Ltd (“Asahi”) agreed to purchase all the shares in Flavoured Beverages Group Holdings Ltd (“the Company”) from its then shareholders, including the following respondents:

Third Respondent:    Eagle Coinvestment Pty Limited (ACN 119 182 688) (as Trustee for Pacific Equity Partners Fund III Co-Investment Trust)

Fourth Respondent:    Jomark International IV B.V.

Fifth Respondent:    Pacific Equity Partners Fund III (Australasia) Pty Limited (ACN 117 565 410) (as Trustee for the Pacific Equity Partners Fund III (Australasia) Unit Trust)

Sixth Respondent:    Pacific Equity Partners Fund III (Australasia) Pty Limited (ACN 117 565 410) (as Trustee for the Pacific Equity Partners Supplementary Fund III) [sic] (Australasia) Unit Trust)

Seventh Respondent:    Pacific Equity Partners Fund III GP (Jersey) Limited as General Partner of Pacific Equity Partners Fund III LP

Eighth Respondent:    Pacific Equity Partners Fund III GP (Jersey) Limited as General Partner of Pacific Equity Partners Supplementary Fund III LP

Ninth Respondent:    PEP Investment Pty Limited (ACN 083 026 984)

2    Of the respondents listed above (“the respondent sellers”), the third, fifth, sixth, seventh, eighth and ninth (“the PEP sellers”) are jointly represented in this proceeding with the first, tenth, eleventh, twelfth, thirteenth and seventeenth respondents. This group has been described as the “PEP respondents”. At the times which are relevant to the applicants’ allegations, the tenth respondent, Rickard Gardell, was a director of the Company, a director and employee of the first respondent, Pacific Equity Partners Pty Ltd, and a director of the fifth, sixth and ninth respondents. The eleventh respondent, Antony Duthie, was director of the Company, an employee of the first respondent and a director of the third respondent. The twelfth respondent, Simon Pillar, was a director of the Company, a director and employee of the first respondent and a director of the fifth, sixth, seventh, eighth and ninth respondents. The thirteenth respondent, Geoffrey Hutchinson, was the alternate of the twelfth respondent as director of the Company, and an employee of the first respondent.

3    The remaining respondent listed above, the fourth respondent (“the Unitas seller”), is jointly represented in this proceeding with the second, fourteenth, fifteenth, sixteenth and eighteenth respondents. This group has been described as the “Unitas respondents”. At the times which are relevant to the applicants’ allegations, the fourteenth respondent, Eugene Suh, was a director of the Company and a partner and the chief operating officer of the second respondent, Unitas Capital Pte Ltd. The fifteenth respondent, Julian Buckley, was a director of the Company and an employee of the eighteenth respondent, Unitas Capital Pty Ltd. The sixteenth respondent, Phillip Bower, was a director of the Company and an employee of the eighteenth respondent.

4    Conformably with the contract of 18 August 2011, Asahi nominated Asahi Liquor New Zealand Limited (“Asahi NZ”) as the transferee of the shares. On 30 September 2011, the transaction completed, and the shareholders, including the respondent sellers, transferred their shares in the Company to Asahi NZ. Subsequently, the Company and one of its subsidiaries, the second applicant, Independent Liquor (NZ) Limited (“ILNZ”) amalgamated under the Companies Act 1993 (NZ). Later again, ILNZ amalgamated with Asahi NZ. By these amalgamations, the position was reached, and the respondents accept, that the rights and interests of the Company are now held by ILNZ.

5    The applicants allege that the respondents, including the respondent sellers, engaged in conduct in contravention of certain provisions of the Competition and Consumer Act 2010 (Cth) and the Corporations Act 2001 (Cth) in connection with the agreement to sell, and the sale of, the shares in the Company in August/September 2011. For present purposes, it will not be necessary to rehearse the nature of those allegations.

6    The matter now before the court concerns the extent to which the respondent sellers may rely upon legal professional privilege to resist the applicants having access to documents which were produced by Clayton Utz in obedience to a subpoena issued by the court, at the instance of the applicants, on 12 April 2013; by PricewaterhouseCoopers Securities Limited (“PWC”) in obedience to a subpoena issued by the court, at the instance of the PEP respondents, on 17 April 2013; and by UBS AG (“UBS”) in obedience to a subpoena issued by the court, at the instance of the PEP respondents, on 17 April 2013.

7    In the period leading to the execution of the agreement for the sale of shares, Clayton Utz were the solicitors engaged in connection with that proposed transaction. The nature of that engagement is not without controversy, and I shall return to it. After completion, Clayton Utz continued to advise the respondent sellers. PWC and UBS were retained by the Company in the period leading to the execution of the share sale agreement. The Clayton Utz subpoena required that firm to produce the whole of their file with respect to the transaction. The PWC and UBS subpoenas required the recipients to produce correspondence and documents received or sent by them (respectively) relating to the transaction for the sale of the shares in the Company. Those subpoenas were answered according to their terms. The respondent sellers thereupon indicated that they would wish to advance a legal professional privilege claim in relation to some of the documents produced, and an arrangement was made for them to inspect those documents. This was done, and the documents over which no privilege claim is made have now been released to the applicants. There remain, however, many documents in respect of which such a claim is persisted with, and the resolution of that claim is the subject of the controversy presently before the court.

8    There were two main issues in that controversy. The first was the conventional one, involving the question whether a document, or part of a document, was prepared for the dominant purpose of providing or receiving legal advice. Ultimately, the applicants accepted that all of the presently controversial documents satisfied that test.

9    The second issue was whether the Company was within the class of persons who were jointly entitled to the privilege. In the pre-completion period, Clayton Utz provided legal advice to those on the vendor side in connection with what was then a proposal for the sale of the Company or of a strategic interest in the Company. There was no formal retainer agreement with any party. Recently, Clayton Utz has informed the solicitors for the PEP respondents that its client was the Company; and almost two months later, they informed the solicitors for the applicants that their clients were both the Company and the first respondent. As noted, it is now accepted that the respondent sellers were entitled to privilege with respect to the limited class of documents for which they claim it. The applicants’ case is that, “it ought to be accepted that Clayton Utz was acting for both parties”. The respondents’ position, however, is that the respondent sellers were and are entitled to the relevant privilege to the exclusion of the Company. Whether that position should be upheld is the remaining question of substance requiring determination on the present application.

10    There was, however, a formal retainer as between the Company and each of PWC and UBS. The PWC retainer was dated 24 March 2011, and related to the provision of a financial due diligence report on the business of the Company that might be given to prospective investors. In addition to the services so provided to the Company, PWC also provided some professional accounting and tax advisory services to the respondent sellers in the pre-completion period. PWC was consulted by the respondent sellers for the purpose of giving instructions to, and of receiving advice from, Clayton Utz in relation to specific parts of the agreement for the sale of shares, including taxation warranties and the working capital adjustment for which the agreement provided. PWC also participated in confidential communications between the respondent sellers and Clayton Utz in relation to the Company’s potential mandatory convertible note tax liability and related issues in connection with the associated escrow agreements (see para 29 below). There were 13 emails (over which privilege is claimed) between the respondent sellers and PWC that were not sent or copied to Clayton Utz. These emails were to provide the respondent sellers with the professional taxation advice they required to give instructions to, and to receive advice from, Clayton Utz.

11    The UBS retainer was dated 17 August 2011, but had an effective date of 1 March 2011. It provided for UBS to be the Company’s financial adviser in relation to the sale of its shares, whether by way of takeover offer, scheme of arrangement, option, negotiated purchase, leveraged buyout or otherwise. During the pre-completion period, UBS was consulted by the respondent sellers for the purpose of giving instructions to, and of receiving advice from, Clayton Utz in relation to specific parts of the share sale agreement, including by providing financial advice as to the proposed terms relating to tax, the escrow agreements and the proposed co-investment terms sheets, drafts of the new shareholders’ agreements and the structure of a potential equity investment. There were 91 emails (over which privilege is claimed) between the respondent sellers and UBS that were not sent or copied to Clayton Utz. These emails were to provide the respondent sellers with the professional financial advice they required to give instructions to, and to receive advice from, Clayton Utz.

12    It should be noted that, over the course of the hearing of the application, the applicants came to accept the respondent sellers’ claims to exclusive privilege with respect to documents (of which there were 187) brought into existence after completion under the contract of 18 August 2011. I am, therefore, concerned only with respect to pre-completion documents.

13    Conceptually, the kind of joint entitlement which the applicants claim to have in relation to the documents in dispute is that which was discussed by Sheller JA, with the assent of Waddell AJA, in Farrow Mortgage Services Pty Ltd (in Liq) v Webb (1996) 39 NSWLR 601, 608 in the following terms:

Two or more persons may join in communicating with a legal adviser for the purpose of retaining his or her services or obtaining his or her advice. The privilege which protects these communications from disclosure belongs to all the persons who joined in seeking the service or obtaining the advice. The privilege is a joint privilege. So is it also if one of a group of persons in a formal legal relationship communicates with a legal adviser about a matter in which the members of the group share an interest. Communications by one partner about the affairs of the partnership or a trustee about the affairs of the trust are examples. Implicit in the relationship is the duty or obligation to disclose to other parties thereto the content of the communication. Accordingly no privilege attaches to such communications as against others who, with the client, share an interest in the subject matter of communication. …

An entitlement of this kind is not to be confused with the situation arising when the communication of an otherwise privileged document to a third party is held not to amount to a waiver of privilege because the person and the third party have a relevant “common interest”. That distinction has recently been the subject of a detailed discussion by Hallen J in Eastmark Holdings Pty Ltd v Kabraji (No 3) [2012] NSWSC 1463 at [67]-[86]. It is with the first of these situations – that of joint privilege in the primary sense – with which I am presently concerned.

14    The respondent sellers do not suggest that all of the documents produced on subpoena are covered by their exclusive privilege claim. Their present solicitors have caused the documents to be examined, and it is only those that contain communications made for the purpose of providing legal advice to the respondent sellers (or any of them), to the exclusion of the Company, which are covered by their present claims. A substantial part of the applicants’ opposition to those claims relates to the adequacy of the evidence which has been given in relation to that examination. It is to the state of that evidence that I next turn.

15    The evidence called on behalf of the PEP respondents was given by their solicitor, Caroline Anne Goulden. Under her supervision, a team of five law graduates and three lawyers employed by the solicitors for the PEP respondents conducted what she described as a “preliminary review” of the documents produced on subpoena. The purpose of that review was to identify and to release to the applicants the documents over which those respondents “could not possibly have any exclusive privileges”. The graduates were given a copy of the pleadings as they stood at the time, and had explained to them that Clayton Utz had acted for the Company, and may have acted for the respondent sellers. They were told that the documents produced on subpoena would need to be reviewed to determine whether there were any over which the respondent sellers had claims for legal professional privilege where that privilege did not also belong jointly to the Company.

16    Some of the documents produced on subpoena were in hard copy form. On six days over the period 16 May – 1 July 2013, these documents were inspected at the court registry by the graduates and lawyers to whom I have referred. Their mandate was to identify documents representing confidential communications made for the dominant purpose of obtaining or providing legal advice to the PEP sellers or the Unitas seller exclusively, or of providing professional legal services to those sellers which related to an Australian or overseas proceeding, including an anticipated or pending proceeding, in which any of those sellers may have been party, and documents which were (in Ms Goulden’s words) “otherwise the subject of common interest privilege”.

17    On 4 June 2013 (after the first three of the days of inspection at the registry), one of the lawyers explained to the graduates that there would very likely be many privileged communications amongst the documents being inspected, particularly amongst those produced by Clayton Utz, and that, in such cases, the Company might be entitled to the privilege jointly with the respondent sellers. The graduates were told that their task was to try to eliminate from further review those documents over which the respondent sellers could not possibly have any exclusive privilege.

18    On 6 June 2013, the same lawyer convened another meeting with the graduates, in which they worked through examples of the documents which had been produced, and discussed the various issues that needed to be considered in the conduct of the review, including the identities and roles of the senders and recipients of the documents, and whether the documents contained any legal advice that had not been jointly provided to the Company. The lawyer gave the graduates a copy of ss 118 and 119 of the Evidence Act 1995 (Cth) by way of explanation of the types of communications that the law recognised as privileged. In the succeeding days, the graduates regularly met with Ms Goulden and other lawyers employed by the solicitors for the PEP respondents “to discuss and ask questions about the [p]roceeding, the review process and the documents under their review”.

19    The result of the inspection of the hard copy documents at the registry was that those documents which had been identified as potentially the subject of a privilege which was exclusive to the respondent sellers, in the sense of not being held jointly with the Company, were removed from those to which the applicants would have access, scanned, and the scanned images were uploaded on to a “Ringtail” database.

20    That database was also used to store the documents which had been produced on subpoena in electronic form. On 6 June 2013, the graduates began their preliminary review of those documents. They were given the same instructions as I have mentioned above in relation to the hard copy documents produced.

21    The documents – hard copy or electronic – that were, as a result of the preliminary review, identified as potentially the subject of a privilege claim by one or more of the respondent sellers to the exclusion of any such claim on behalf of the Company were then subjected to what Ms Goulden referred to as a “secondary review”. She estimated that there were fewer than 10,000 such documents.

22    The secondary review was conducted by Ms Goulden with the assistance of the three other lawyers in the employ of the solicitors for the PEP respondents to whom I have referred above. The purpose of the secondary review was to identify for release to the applicants the documents that were, on their face, clearly not privileged to the respondent sellers exclusively, and to identify a smaller pool of documents over which one or more of those sellers had potential claims for privilege, where such privilege was not jointly held with the Company. The discrimen which Ms Goulden and her team applied to the documents was the same as that which I have, in para 16 above, described as the mandate which was given to the graduates at the stage of the preliminary review.

23    The result of the secondary review was that there were, in Ms Goulden’s words, “several thousand … documents … identified as potentially privileged to the PEP Sellers and the Unitas Seller alone”. Ms Goulden then instructed the lawyers assisting her and the graduates to group these documents into categories by reference to the title of the document. In this way, chains of common email communications, their attachments and related stand-alone documents were grouped together, and all of the related documents in a particular group were then reviewed and summarised by one lawyer or graduate. Where it was evident that email communications grouped under a different title were very closely related to the subject matter of another group of communications, these were grouped together in the one summary. Each summary identified the persons who participated in the communications, the subject-matter of each of the communications in chronological order and the date range of the communications, extracted parts of those communications, and listed example documents by reference to their Ringtail codes. Ms Goulden reviewed each of the 30 summaries prepared by the lawyers and graduates.

24    Ms Goulden sent each of the summaries to Mr Hutchinson (the thirteenth respondent), together with examples of the documents discussed in each summary, for review. Ms Goulden made use of Mr Hutchinson in this way because she formed the belief, based upon her review of the documents produced under subpoena, that Mr Hutchinson was named as either a recipient or a sender of the largest number of the potentially privileged email communications and related attachments. Since then, and seemingly for the purpose of the present controversy, she has ascertained, by electronic search, that Mr Hutchinson sent or received 2136 of those emails or attachments.

25    Although not a director or employee of any of the PEP sellers, Mr Hutchinson is employed by the first respondent. The first respondent is the manager of two trusts of which the fifth and sixth respondents (in their capacities as PEP sellers) were trustees. They made decisions on the recommendations of the first respondent. The first respondent is also the manager of a trust of which the third respondent (in its capacity as a PEP seller) was trustee. The first respondent also owns all the shares in the ninth respondent. Additionally to these facts, Ms Goulden swore to the following, upon which she was not cross-examined:

[The first respondent] is obliged to refer investment (and divestment) transactions via back-to-back investment referral agreements to the Manager of Core US Fund III and Supplementary US Fund III. The Seventh and Eighth Respondents, in their capacities as General Partners of Core US Fund III and Supplementary US Fund III, were PEP Sellers.

26    Ms Goulden discussed each summary and the example documents with Mr Hutchinson. He informed her which groups of privileged communications had been prepared for the exclusive benefit of the respondent sellers. As a result of those discussions, Ms Goulden was able to identify for release to the applicants groups of documents which were similar to the types of documents reviewed by Mr Hutchinson and which, he had informed her, had been prepared for the benefit of the Company, and not exclusively for the benefit of the respondent sellers. Ms Goulden was also able to identify documents about particular subject matters which were similar to the types of documents reviewed by Mr Hutchinson and which, he had informed her, related to issues unique to the interests of those sellers. Then Ms Goulden and her team of lawyers and graduates again reviewed the potentially privileged documents, and sorted the pre-completion documents into four categories, to which I shall refer presently.

27    Before turning to those categories, however, I would note that what I have said to date about the process for identifying the documents over which a privilege claim would be made on behalf of the respondent sellers relates to the documents produced by Clayton Utz and PWC. The documents produced by UBS were, according to Ms Goulden, dealt with slightly differently. Close to “11,000 native files of electronic documents” were received from UBS later than would have permitted them to be included, in every respect, in the process to which I have referred. Accordingly, it was decided to divide the task of preliminary review between the solicitors for the PEP respondents and the solicitors for the Unitas respondents. Otherwise, the steps described above were taken also in relation to those documents.

28    The four categories into which the pre-completion documents were sorted by Ms Goulden and those assisting her were the following (and here I quote from her affidavit sworn on 15 August 2013):

…

(a)    documents, including emails, relating to the rights and obligations of the PEP and Unitas Sellers under the Share Sale Agreement and associated escrow agreements, including the drafting of those documents, alternatives to the escrow arrangements and completion steps;

(b)    documents, including emails, relating to the rights and obligations of the PEP and Unitas Sellers in the context of a potential minority co-investment being made by an incoming shareholder, including the drafting of co-investment term sheets and draft versions of a new shareholders’ agreement;

(c)    documents, including emails, passing between Clayton Utz and MERW, which relate to the rights and obligations of the PEP and Unitas Sellers and the Erceg Shareholder under the Share Sale Agreement and associated escrow agreements, and in which those parties had a common interest; and

(d)    documents, including emails, relating to privileged advices given to the PEP and Unitas Sellers in or about 2007 by their then legal advisors, Chapman Tripp and historical taxation advices prepared by PricewaterhouseCoopers Securities Limited NZ at the request of Chapman Tripp in relation to the structuring of the PEP and Unitas Sellers’ investment in FBGHL in 2007.

29    With respect to the documents in category (a), Ms Goulden said that Clayton Utz drafted the share sale agreement, the only parties to which were Asahi and the shareholders of the Company, including the respondent sellers. She said that Clayton Utz also drafted two escrow agreements, to preserve amounts from the proceeds of sale - that would otherwise be payable to the sellers - to meet a potential future tax liability of the Company. The parties to these escrow agreements included Asahi and the shareholders of the Company, but not the Company itself. She said that Clayton Utz also drafted a retention escrow agreement, the monies under which would be used to fund the working capital adjustments, if any, that would be made following completion. Again, the parties to that agreement included the shareholders of the Company, but not the Company itself.

30    Ms Goulden formed the opinion that the documents in category (a) (of which there were 2,993) were all confidential ones, created for the dominant purpose of giving legal advice to the respondent sellers exclusively. Having so sworn, Ms Goulden continued in her affidavit of 15 August 2013:

… The advice related to the rights and obligations of the PEP and Unitas Sellers including in relation to:

(a)    conditions precedent to the Transaction;

(b)    warranties under the Share Sale Agreement;

(c)    the working capital adjustment mechanism under the Share Sale Agreement (Schedule 9) and reference working capital amount (Schedule 10);

(d)    pre-Completion requirements under the Share Sale Agreement and the escrow agreements, including the contents and form of Notices;

(e)    limitations on liability under the Share Sale Agreement and escrow agreements;

(f)    alternatives to the Tax Escrow Agreements;

(g)    mechanisms for, and timing for the release of, the escrowed amounts under the various escrow agreements;

(h)    terms of appointment and functions of the escrow agent under the various escrow agreements; and

(i)    side deeds to the Share Sale Agreement.

31    With respect to the documents in category (b) (of which there were 834), Ms Goulden explained that the potential strategic investment transaction was one in which, rather than buying all the shares in the Company, an intending investor might offer to buy some of those shares. In early 2011, UBS sought indicative offers from potential investors, and, on 21 June 2011, Asahi submitted a non-binding indicative offer to participate in a strategic investment transaction by taking a 33.3% interest in the Company, alongside existing shareholders. Mr Hutchinson informed Ms Goulden that, prior to any indicative offers being received, Clayton Utz provided the respondent sellers with advice regarding the draft terms of such a strategic investment transaction. Ms Goulden formed the opinion that all the documents in category (b) were confidential ones created for the dominant purpose of giving legal advice to the respondent sellers. In her affidavit, Ms Goulden’s evidence continued as follows:

… The advice sought and received related to the rights and obligations of the PEP and Unitas Sellers under the drafts of the term sheets and shareholders’ agreements, including in respect of:

(a)    the structure of a Strategic Investment Transaction; and

(b)    the allocation of shareholder rights and powers.

32    The “Erceg shareholder” referred to in category (c) was a trust, not connected with any of the respondents, which held 10.557% of the shareholding in the Company prior to the transaction of August/September 2011. The entity referred to as “MERW” is the New Zealand law firm Minter Ellison Rudd Watts, who acted for the Erceg shareholder. According to Ms Goulden’s affidavit, in August and September 2011 confidential documents were sent between MERW and Clayton Utz recording legal advice given to the respondent sellers, and the Erceg shareholder, regarding draft terms of the share sale agreement and the escrow agreements. Ms Goulden formed the opinion that the documents (of which there were 146) were sent between principals of, and solicitors employed by, Clayton Utz and MERW respectively, and related to legal advice regarding the share sale agreement and the escrow agreements in which the Erceg shareholder and the respondent sellers had a common interest.

33    With respect to the documents in category (d) (of which there were 103), Ms Goulden formed the opinion that they were confidential communications as between the respondent sellers and Clayton Utz –

…

(a)    that were prepared for the dominant purpose of providing legal advice to the PEP and Unitas Sellers in 2011 regarding their rights in respect of historical formal legal advices given by Chapman Tripp (which were at the time and remain privileged) and historical formal taxation advices prepared at the request of their then legal advisers Chapman Tripp (which were at the time and remain privileged), in relation to the PEP and Unitas Sellers’ investment in FBGHL in 2007; and

(b)    which attach those historical formal legal advices and historical formal taxation advices (which were at the time and remain privileged) given to the PEP and Unitas Sellers.

34    Each of the opinions formed by Ms Goulden in relation to the documents in categories (a), (b), (c) and (d) to which I have referred amounted to her professional judgment based on her discussions with Mr Hutchinson and her personal review of more than 60% of the documents concerned. Although not put in so many words in her affidavit, it goes without saying that those opinions were also based substantially upon her supervision of, and her involvement in, the process of the identification of the documents over which privilege would be claimed as set out above in these reasons. Save for the matter to which I turn below, it was not submitted on behalf of the applicants that I should not accept Ms Goulden’s evidence; nor was it suggested to her while under cross-examination that the process she employed lacked integrity or was likely in some other way to lead to the making of unduly ambitious privilege claims.

35    Subsequently to the swearing of the affidavit of Ms Goulden of 15 August 2013, the PEP sellers undertook a further review of the documents for which a claim of privilege was articulated in that affidavit. In the result, by an affidavit sworn by Leon Zwier on 11 September 2013, the PEP sellers removed a number of documents from those over which privilege would be claimed. In the orders which I make in consequence of these reasons, I shall take account of that excision.

36    The one matter which, in the submission of the applicants, should lead the court to reject the legitimacy of the PEP sellers’ privilege claim is that it was substantially based on hearsay. It was pointed out that the court had not had the benefit of the evidence of the originator of any of the documents in question. It was said that the court should not accept it as having been established by the evidence of Ms Goulden that the purpose of the maker of any of the presently controversial communications was such as would sustain a claim of privilege.

37    In a number of places in her affidavit of 15 August 2013 (and specifically in relation to each of the categories of documents to which I have referred), Ms Goulden said that she had been “informed by Mr Hutchinson”, and that she believed, that the documents with which she was dealing were confidential ones which had been “created for the dominant purpose of giving legal advice to the PEP and Unitas sellers” (adding, in some instances, “exclusively”). Counsel for the applicants submitted that, as Mr Hutchinson was neither an officer nor an employee of any of those sellers, and as Ms Goulden had not sworn to the source of Mr Hutchinson’s information, the court could not, or at least should not, hold Ms Goulden’s evidence to be sufficient to sustain a privilege claim in relation to the documents.

38    In the context of a claim of legal professional privilege, what was the purpose for which a particular communication was made is a question which must be answered objectively: Commissioner of Taxation v Pratt Holdings [2005] FCA 1247 at [30]; AWB Ltd v Cole (No 5) (2006) 155 FCR 30, 44 [44]; Carter Holt Harvey Wood Products Australia Pty Ltd v Auspine Ltd [2008] VSCA 59 at [2]-[3]. The say-so of the maker of the communication will not be conclusive and, in the usual run of cases, will not even be necessary. Purpose is to be determined from the content of the document understood in its full context. The same approach is to be taken, in my view, where, as here, the question relates to the range of persons entitled to the privilege. In such a setting especially, it must be remembered that the question relates to the purpose of the communication rather than to the immediate thinking of the maker of the communication at the relevant time.

39    In my view, there was something unsatisfactory about Ms Goulden’s reliance on what she had been told by Mr Hutchinson as referred to above, but it was not the circumstance to which counsel for the applicants referred. It was that, if there were to be a rolled-up statement about classes of documents (and putting aside the unusual case in which it would be necessary for the maker of a particular communication to give evidence of his or her purpose), any assessment of the purpose or purposes for which the communications in the documents had been made was one that ought to have been made by, or on the advice of, a legal practitioner, at least in the first instance. When such a practitioner states that a communication in a document was made for the dominant purpose of giving or receiving legal advice, he or she expresses an objective professional conclusion based on his or her reading of the document and understanding of the context from instructions given by the client, and from his or her familiarity with the case generally (a conclusion which may, in a case in which the documents are voluminous, necessarily involve also the conclusions of other practitioners sharing the relevant workload). It would not be satisfactory (and it would not have been satisfactory in the present case) if such a practitioner goes no further than to convey to the court what he or she had been told on the question of purpose by his or her lay client.

40    I need not develop those concerns further, however, since Ms Goulden subsequently swore a further affidavit on 19 September 2013, and it was from that affidavit that I have taken the facts recited above to the extent that they relate to the involvement of Mr Hutchinson in the process by which the respondent sellers formulated their claims of privilege. That involvement came only after Ms Goulden’s legal team had conducted their two reviews. The graduates and lawyers were, I would infer, in a position to identify communications of a kind that would attract privilege and doubtless used indications in the documents themselves that would imply a joint purpose (such as, perhaps, the fact that a document was addressed to the Company as well as to one or more of the respondent sellers). Mr Hutchinson was brought in to give context to the lawyers’ reviews, in the way I have summarised in para 26 above. Although not an officer or employee of one of the PEP sellers, his proximity to the circumstances under which the relevant communications were made is evident – both by being the sender or an addressee in so many instances and by reason of the first respondent’s significant position apropos those sellers. As Ms Goulden put it under cross-examination:

Mr Hutchinson was directly involved after we had completed [the] secondary review, and we felt that even though it was apparent on the face of many of the documents that they were potentially privileged exclusively to our clients, we would need to discuss the documents or examples of the documents with someone like Mr Hutchinson who had had an involvement in the transaction in order to confirm that that was indeed the case.

41    The circumstances do not, in my view, raise a problem of absence of evidence of source, such as might stand in the way of the respondents relying on s 75 of the Evidence Act 1995 (Cth). It was not suggested to Ms Goulden, and it was not submitted, that Mr Hutchinson was not in a position to have assisted her in the way that he did. Ultimately, the basis for the claim for privilege made by the respondent sellers was Ms Goulden’s professional judgment. The court should not reject that claim upon the ground that there was, or may have been, some hearsay in so much of her evidence as related to the assistance which she received from Mr Hutchinson.

42    The evidence called on behalf of the Unitas respondents was given by their solicitor, Jonathan Edward Light. In a number of areas he affirmed as to what he had been told by Mr Buckley, the fifteenth respondent. Mr Buckley was not an officer or employee of the Unitas seller. He was employed in the position of principal by the eighteenth respondent, which provided investment advisory services, consulting, monitoring and research services relating to the Australian economy, investment environment and financial markets, and other services to the second respondent (of which the eighteenth respondent was a wholly-owned subsidiary). The second respondent, in turn, assisted Unitas Capital Ltd (an exempted company incorporated in the Cayman Islands) in the performance of the latter’s functions and duties under an investment management agreement into which it had entered with a private equity fund called Asia Opportunity Fund II, LP. The Unitas seller was an asset of that fund. Mr Buckley had a substantial involvement in reviewing and negotiating the terms of the agreement of 18 August 2011. Of the pre-completion documents, 1,795 had been sent to or by, or copied to, Mr Buckley.

43    Mr Buckley informed Mr Light that Clayton Utz provided legal advice to the respondent sellers exclusively in relation to the following matters (and here I set out the relevant text in his affidavit affirmed on 16 August 2013):

(a)    conditions precedent to the Transaction;

(b)    warranties under the Share Sale Agreement;

(c)    working capital adjustment mechanism under the Share Sale Agreement (Schedule 9) and reference working capital amount (Schedule 10);

(d)    pre-completion requirements under the Share Sale Agreement and the escrow agreements, including the contents and form of Notices;

(e)    limitations on liability under the Share Sale Agreement and the escrow agreements;

(f)    alternatives to the Tax Escrow Agreements;

(g)    mechanisms for, and timing for the release of, the escrowed amounts under the various escrow agreements;

(h)    terms of appointment and functions of the escrow agent under the various escrow agreements;

(i)    side deeds to the Share Sale Agreement;

(j)    the structure of a Strategic Investment Transaction;

(k)    the allocation of shareholder rights and powers;

(l)    the draft terms of the Share Sale Agreement and escrow agreements;

(m)    issues and disputes between the Applicants and PEP Sellers and Unitas Seller which arose following the Completion of the Transaction;

(n)    the Working Capital Adjustment;

(o)    the Tax Escrow Agreements;

(p)    the Sellers obligations in relation to the IRD claim;

(q)    the Working Capital Dispute;

(r)    the Side Deed; and

(s)    the Applicant’s request for access to Clayton Utz’s file.

44    Under Mr Light’s supervision, a team of junior lawyers and law graduates employed by the solicitors for the Unitas respondents reviewed the documents which Ms Goulden and her assistants had identified as properly the subject of a claim for legal professional privilege. Those involved were instructed to assess whether those documents represented confidential communications created for the dominant purpose of obtaining or providing legal advice to the PEP sellers or the Unitas seller exclusively, or of providing professional legal services to those sellers exclusively relating to an Australian or overseas proceeding, including an anticipated or pending proceeding in which one or more of those sellers may have been a party, or were otherwise “subject to common interest privilege held with Erceg”. Mr Light himself personally reviewed about 50% of those documents, and applied the same criteria.

45    After Mr Light had affirmed his affidavit of 16 August 2013, from which the facts set out above were taken, he instructed his team to undertake a further review of every document that was sent to or from, or copied to, a person other than a person with an email address from UBS, PWC, Clayton Utz, “PEP or Unitas” (which I infer was a reference to the PEP sellers and the Unitas seller). In that same period, Mr Light instructed the lawyers to conduct a further review of a sample of the documents to confirm that they were in the nature of legal advice provided to the PEP sellers or the Unitas seller exclusively and to raise with him any document about which they had queries. This led to the identification of 226 additional documents over which the Unitas seller did not, and does not, claim privilege. In the course of an exchange of correspondence between the solicitors for the applicants and the solicitors for the Unitas respondents on 17 and 18 September 2013, a further 36 documents were nominated by the latter as no longer the subject of a claim for privilege by the Unitas seller.

46    Subject to those qualifications, Mr Light affirmed that the documents sorted into the four categories by Ms Goulden and her assistants were, in relation to the matters identified in those categories respectively, created for the dominant purpose of providing legal advice to the PEP sellers or the Unitas seller exclusively.

47    The only respect in which Mr Light was challenged on his affidavits was to extract from him the concession, which he readily made, that, aside from what Mr Buckley had told him, he “had no personal knowledge of the source of the information upon which Mr Buckley relied for the purposes of asserting to [him, Light] that Clayton Utz produced advice exclusively to the PEP and Unitas sellers”. Notwithstanding that concession, and in part because of the qualified nature of the question which extracted it – no personal knowledge; and setting aside what Mr Buckley had told him – I am satisfied that Mr Light was in a position to give the evidence which he did, and that the court can rely on it. I refer in this regard to my corresponding reasons, given above, in relation to Ms Goulden.

48    As to the reliability of the evidence of Ms Goulden and Mr Light in support of their clients’ privilege claims, it must also be noted that this was not a case in which each group of solicitors reviewed only the documents that related to their respective clients’ claims. Rather, both groups reviewed all documents. For reasons which should be clear, it is also to be observed that they, and their clients, have been prepared to withdraw documents from the group in relation to which claims are made when a further review established that such a withdrawal was appropriate. Each of these circumstances makes its own small contribution to the court’s confidence in the integrity of the process followed by the respondents.

49    In dealing with the essentially procedural issues which are now before the court, I must, of course, note the injunction in s 37M(3) of the Federal Court of Australia Act 1976 (Cth). Given the very large number of documents involved, I consider that it was consistent with that provision and with 37N(2), and appropriate generally, that the respondent sellers’ solicitors handled their clients’ privilege claims in the way that they did. To the extent that the applicants’ objections involved the proposition that, rather than receiving the evidence in the form in which it was presented, the court should have undertaken for itself an examination of every document in relation to which a privilege claim was made, I would reject them as manifestly productive of inefficiency on a matter of practice and procedure.

50    There are three further specific issues which the applicants’ submissions raised and which were said to have a bearing on the ability of the court to accept the respondents’ case that the documents in dispute contained communications which were privileged to the respondent sellers to the exclusion of the Company. The first related to documents in Ms Goulden’s category (a). In the submission of the applicants, there were provisions of the agreements and drafts referred to that would be to the benefit of, or would otherwise impinge on the interests of, the Company itself. To that extent, it was not possible for the respondent sellers to assert, by category, that advices about such agreements must necessarily have been given only in the interests of those who were to be parties to them. The applicants relied on four aspects of the agreements under which, it was said, the Company’s interests were affected.

51    First, it was said that, under the agreement for the sale of shares and the escrow agreements to which I have referred, the Company faced a potential future tax liability arising from the tax treatment of mandatory convertible notes which it had issued in January 2007. However, in this area of their submissions the applicants relied on the following passage in Ms Goulden’s affidavit of 15 August 2013:

Clayton Utz also drafted two escrow agreements to preserve amounts from the proceeds of sale that were otherwise payable to the Sellers, including the PEP and Unitas Sellers, to meet a potential future tax liability of FBGHL. FBGHL’s potential tax liability arose from the tax treatment of MCNs issued by FBGHL in January 2007.

As the respondents pointed out in their submissions, although it was the Company that faced the tax liability, the obligation to provide the funds for any tax that had to be paid was rolled into the price that Asahi paid for the shares which it purchased from the sellers. When the extent of the liability, if any, had been determined, the appropriate adjustment would be made as between those parties. With respect to the matters dealt with in the agreements (as distinct from the obligation to pay tax as such), the Company did not, in my view, have a relevant interest.

52    Secondly, it was provided in the share sale agreement as follows:

At Completion, the Buyer must (by way of loan) provide the relevant Group Companies with the Transaction Cost Estimate (in aggregate) to enable the Sellers to procure that the Group pays the Transaction Cost Estimate at Completion to all parties to whom the Transaction Costs are owed.

Amongst the transaction costs referred to were the fees of Clayton Utz. The effect of the above provision seems to have been that Asahi would extend a loan to the Company to enable the sellers to procure that the group (ie the Company and its subsidiaries) would pay those fees, and other transaction costs. Although the clause contemplated that a loan would be made to the Company, the Company was not bound by it. It was Asahi that had to make the loan. The sellers, in turn, were obliged to procure that the monies thereby received would be dispersed in payment of the transaction costs. There is, I accept, a sense in which the interests of the Company might be involved, beneficially or adversely, by the making of the provision in these terms. However, the mere fact that such a provision was under negotiation, and ultimately agreed, does not, in my view, necessarily involve the conclusion that advice given only to the sellers about the terms of the provision would be covered by a privilege in which the Company shared. I shall return to this aspect below.

53    Thirdly, the applicants pointed to a similar provision in the share sale agreement as to the repayment of external debt which the Company was carrying at the time of the relevant negotiations. It was provided that, at completion, Asahi would provide the Company (and its subsidiaries) with a loan sufficient to enable the sellers to procure the Company to repay its external debt. Here again, I accept that there may have been respects in which the making of such a loan, and the implication that the Company would use the loan monies to repay the external debt, were matters legitimately of interest to the Company itself. But, as with the second item mentioned above, I do not accept that it follows that every piece of advice given to the sellers as to the drafting and execution of an agreement in these terms would necessarily be covered by a privilege in which the Company shared. I shall return to this aspect below.

54    Fourthly, the applicants referred to the possibility, which I have discussed at para 31 above, that Asahi might have made a strategic minority investment in the Company, rather than buying it outright. Had that been the result of the parties’ negotiations, the Board of the Company would have been required to register the share transfers involved, or to issue any new shares, pursuant to its powers under the Company’s constitution. I cannot see how this circumstance – which never became a reality – has any bearing on the extent of the privilege that would otherwise be attracted by communications which related to the share sale agreement itself, or to the other agreements which were in fact executed, or to drafts thereof.

55    In what I have written above, I have, in certain respects, allowed for the possibility that some provisions of the shareholders’ agreement and/or the escrow agreements might have given rise to obligations which, even if imposed only on the parties to those agreements, would have had consequences for the Company itself, such that the Company might, conceivably, have been interested in such legal advice as was given about them. So much may be accepted, but it does not follow that all advice given with respect to the agreements, and all communications made incidental to that advice, were of concern to the Company to the extent necessary to entitle it to share in the relevant privilege claims. It is here that I should respect the oath and affirmation of the solicitors who supervised the inspection and sorting of the documents produced on subpoena. I am, in the circumstances, in no position to suspect that communications which contained, or related to, advice which was also of apparent interest to the Company were inappropriately made the subject of the privilege claims vouched by those solicitors.

56    The second specific issue raised by the applicants is that, although there may have been no formal retainer of Clayton Utz, that firm (at least initially) apparently took the view that their client was the Company, and the relevant invoices were rendered to the Company. As to the former aspect, I would not place much weight by such a view expressed after the event, particularly given the nature of the intended transaction upon which the firm was advising. That transaction was to be for the sale of property which belonged to the respondent sellers. In the course of Clayton Utz’s work, I have no doubt but that services were provided, and advice was given, to the Company. So far as I can see, however, no explicit privilege claim is made by the respondent sellers in relation to communications made along that axis. A great many documents produced by Clayton Utz have been released to the applicants. The fact that Clayton Utz considered that the Company was their client is not, in my view, inconsistent with the existence of some documents in the files of that firm over which the respondent sellers would have privilege claims which were not shared by the Company itself.

57    With respect to the firm’s fees, the invoices to which I have referred were ultimately paid by Asahi, which received a credit for the outlay in the final settlement of the monies that were to be paid to the respondent sellers under the contract of 18 August 2011. This circumstance is, in my view, quite consistent with the privilege claims advanced by the respondent sellers.

58    The third specific issue to which the applicants point is the fact that a number of the flesh and blood individuals who dealt with Clayton Utz on behalf of the respondent sellers were also directors of the Company. It was said that they could only have been acting in that capacity when they caused the respondent sellers to enter into agreements under which the Company incurred legal obligations and took risks of the kind with which I have dealt at paras 51-53 above. Particularly given the legal obligation of those individuals to act in the best interests of the Company in transactions in which those interests might be affected, it was said, to the extent that the communications in the contentious documents touched the position of the Company, the Company must of necessity be within the class of persons entitled to claim privilege. Whilst the conceptual basis of this submission cannot be denied, I would not accept that it constitutes a justification for rejecting the claims to exclusivity advanced on behalf of the respondent sellers as a whole. The individuals concerned also had relevant roles on behalf of those sellers as shareholders. The respondent sellers’ solicitors have gone on their oath and affirmation with respect to those claims, and I should not assume that they (the solicitors) were not alive to the important distinction which the applicants make in this part of their submissions. Neither Ms Goulden nor Mr Light was cross-examined about it.

59    There is one final observation I would make, for the sake of clarity if nothing else. In at least some of the submissions made on behalf of the applicants, it appeared to be suggested that the privilege to which the respondent sellers are entitled could not be exclusive to them because those sellers had shared documents concerned with others of the respondents and with other shareholders, such as the Erceg shareholder. In their case as originally presented, the respondent sellers sought to rely upon the “common interest” which they had with these other parties and persons, such that the sharing referred to would not amount to a waiver. As events have transpired, I am not required to consider this point because the applicants have, as indicated above, accepted that the documents in question were privileged to the respondent sellers. The only question upon which I have been required to rule is whether the Company too is entitled to that privilege.

60    For the above reasons, I propose to uphold the respondent sellers’ claims to legal professional privilege.

Associate:

Dated:    3 October 2013