FEDERAL COURT OF AUSTRALIA

Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796

THE COURT ORDERS THAT:

1.    The applicants produce for inspection by the respondents redacted forms of Documents 1, 2, 3, 7 and 19 as described in my reasons delivered today on the applicants’ privilege claims, the form of such redactions to accord with these reasons.

2.    Each parties’ costs of and incidental to this interlocutory application be their costs in the cause.

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

REASONS FOR JUDGMENT

1    Pursuant to a share sale agreement executed on 18 August 2011 (SSA), the applicants acquired shares in Flavoured Beverages Group Holdings Limited (FBGHL) from various of the respondents. The first applicant (Asahi Holdings) executed the SSA and subsequently nominated the second applicant (Independent Liquor (NZ) Ltd) as purchaser. The sale was completed on 30 September 2011 (the Transaction).

2    On 14 February 2013, the applicants filed proceedings in this Court relating to the Transaction. The issues in dispute broadly concern claims that the first, third, fifth to thirteenth and seventeenth respondents (the PEP Respondents) and the second, fourth and eighteenth Respondents (the Unitas Corporate Respondents) made or authorised to be made misrepresentations to the applicants and Asahi Group Holdings Ltd (Asahi), their ultimate holding company, regarding the financial position of FBGHL. For example, the applicants allege that the respondents caused or authorised inflated earnings before interest, taxes, depreciation and amortisation (EBITDA) figures of FBGHL to be provided to the applicants and Asahi.

3    On 7 April 2014 the PEP Respondents and the Unitas Corporate Respondents caused subpoenae to be issued to inter alia Nomura Australia Ltd (Nomura), Deloitte Tohmatsu FAS Co., Ltd (Deloitte Japan), and Rothschild Australia Limited (Rothschild) (the third party advisers). Along with Deloitte Touche Tohmatsu (Deloitte Australia), Value Line Consulting Pty Ltd, and the law firms Freehills (as it then was) and Bell Gully, the third party advisers were engaged by Asahi as “exclusive advisers” for the purpose of the Transaction. “Project Kentucky” was the informal name given to the Transaction. Asahi’s code name was “Alabama”.

4    By orders made on 24 April, 30 April and 2 May 2014, the applicants were given first right of access to documents produced by the third party advisers and were required to “produce a list of documents over which they claim privilege and the basis for their privilege claims to the PEP Respondents and the Unitas Corporate Respondents”.

5    On 18 July 2014, Gordon J made orders in relation to a privilege dispute foreshadowed by the parties, which at that time included approximately 391 documents divided into two schedules by the Unitas Corporate Respondents: Schedule 1 and Schedule 2. The documents in Schedule 1 were characterised by the Unitas Corporate Respondents as documents “which, based on the information provided by Corrs, did not appear to be sent or received by the applicants' legal advisers, Freehills and Bell Gully”. The documents in Schedule 2 were characterised by the Unitas Corporate Respondents as documents “sent or received by Freehills or Bell Gully, in relation to which further explanation establishing the basis for the applicants' privilege claims was sought, as the titles and/or large volume of recipients suggested that the communications may not have been made for the dominant purpose of obtaining or giving legal advice”.

6    Her Honour ordered that the parties file submissions and affidavit material in support of or against the claims. Her Honour further ordered that the Unitas Corporate Respondents provide the applicants with a list of documents derived from Schedule 1 and/or Schedule 2 that they required to be considered by the Court in determining the applicants’ claim for legal professional privilege, and that the applicants file and serve redacted copies of the documents listed, with no more than 30 sample documents to be selected (as well as any additional documents the applicants required to be considered by the Court in determining the applicants’ claim for legal professional privilege). The maximum of 30 documents was intended to be representative of the larger volume of documents in Schedule 1 and Schedule 2 over which privilege claims were made, and indicative of the main issues in dispute. On 21 July 2014 the Unitas Corporate Respondents provided to the applicants a list of 27 documents which had been selected by the Unitas Corporate Respondents from Schedule 1 and Schedule 2. Neither sets of parties abandon their privilege claims or challenges to the claims over the documents listed in Schedule 1 and Schedule 2 in toto.

7    On 22 July 2014, the applicants filed unredacted hard copies of the 27 documents (with attachments) over which they maintained privilege claims, for consideration by the Court. Redacted copies of the same had been served on the Unitas Corporate Respondents on 21 July 2014. On 22 July 2014, the applicants served on the Unitas Corporate Respondents amended redacted versions of three of the documents. For the most part, redactions were made over the entire content of the emails, which were the form of most of the documents, except for the dates, times, subject lines, senders and recipients which were left visible; but sometimes not even such details were visible.

8    On 23 July 2014, the solicitors for the Unitas Corporate Respondents advised the Court that the scope of the dispute had been substantially narrowed, and that 8 documents remained in dispute. The remaining documents are copies of emails together with attachments described, by way of electronic identification code and pursuant to the numbering assigned in the 21 July 2014 list, as follows:

(a)    Document 1 [NOM.501.013.2122];

(b)    Document 2 [NOM.501.014.9826];

(c)    Document 3 [NOM.501.014.9830];

(d)    Document 5 [ROT.0001.0002.2411];

(e)    Document 6 [DEL.0004.0045.0001];

(f)    Document 7 [NOM.501.015.5803];

(g)    Document 9 [DEL.0004.0020.0001]; and

(h)    Document 19 [ROT.0001.0002.9886] (together, the Documents).

9    Broadly, the Unitas Corporate Respondents submit that the third party advisers were engaged for the purpose of providing financial and commercial advice to Asahi for the purposes of the Transaction. They submit that the email communications subject to privilege claims in the Documents were from, sent or copied to the third party advisers and either not from, sent or copied to personnel from Freehills, or were from, sent or copied to personnel from Freehills but were also sent or copied to a large number of other recipients (including personnel of the third party advisers). Therefore the applicants’ privilege claims are not maintainable as those communications were not for the dominant purpose of giving or obtaining legal advice.

10    The applicants assert that the relevant communications were made for the dominant purpose of Asahi seeking and obtaining legal advice from Freehills. It was said that the third party advisers were engaged by Asahi under express and implied obligations to keep the allegedly privileged communications confidential, and were not permitted to disclose or use that information for any purpose contrary to Asahi’s requirements.

11    The key issue for determination is whether the relevant communications were made for the dominant purpose of obtaining or providing legal advice, despite being made by or disseminated to the third party advisers, in many cases in the absence of being sent or copied to Asahi’s lawyers.

12    For assessing the privilege claims, no distinction is required to be made between the applicants and Asahi.

The evidence

13    On 24 July 2014, the applicants filed an affidavit of Thomas Edmond Barry sworn on 24 July 2014, a senior associate employed by Corrs Chambers Westgarth (Corrs) (solicitors for the applicants) in support of the applicants’ claims for privilege. This was the only evidence adduced by the applicants, except for the Documents themselves and two additional documents tendered at the hearing.

14    Mr Barry set out the relationship between Asahi and each of the third party advisers as follows:

(a)    Deloitte Japan was engaged by Asahi in connection with Asahi's evaluation of the proposed acquisition of FBGHL, including in the provision of financial, tax, IT and HR due diligence services, pursuant to an engagement letter from Deloitte Japan to Asahi dated July 2011. Clause 2 of Appendix A of that engagement letter contained obligations as to confidentiality. Its terms provided:

Confidentiality. To the extent that, in connection with the performance of the Services, the Deloitte Entities come into possession of any proprietary or confidential information of Client (the "Confidential Information"), the Deloitte Entities will not disclose the Confidential Information to any third party without Client's consent. Client hereby consents to the Deloitte Entities disclosing the Confidential Information (a) to other Deloitte Entities, whether located within or outside of Japan, that are providing services in connection with this engagement or persons or entities permitted to receive Client Communications under the engagement letter to which these terms are attached, (b) as may be required by law, regulation, judicial or administrative process, or in accordance with applicable professional standards or rules, or in connection with litigation pertaining hereto, (c) to the extent such information (i) shall have otherwise become publicly available (including, without limitation, any information filed with any governmental agency and available to the public) other than as the result of a disclosure by the Deloitte Entities in breach hereof, (ii) becomes available to a Deloitte Entity on a nonconfidential basis from a source other than Client which such Deloitte Entity believes is not prohibited from disclosing such information to such Deloitte Entity by obligation to Client, (iii) is known by a Deloitte Entity prior to its receipt from Client without any obligation of confidentiality with respect thereto, or (iv) is developed by a Deloitte Entity independently of any disclosures made by Client to such Deloitte Entity of such information, or (d) for purposes of a specific reference, including, without limitation, the trade name, housemark, logotype or any other indication to identify Client, in proposals or similar directed marketing efforts provided that the Proposed Transaction shall have been successfully completed by Client and such information shall have been publicly announced.

In the event that this engagement is completed or otherwise ends, or that such Confidential Information is considered no longer necessary for the purpose of performing the Services, DTFAS shall promptly return to Client, or destroy, all tangible Confidential Information and photocopies thereof upon written request by Client. Notwithstanding anything herein to the contrary, the Deloitte Entities shall have the right to retain any analyses and supporting documentation prepared by the Deloitte Entities that are based on, or contain portions of, the Confidential Information evidencing the Deloitte Entities' services for Client or its affiliates for archival purposes; provided that any such materials retained shall continue to be kept confidential subject to the terms of this Section 2.

The confidentiality obligation under this Section 2 shall continue for three (3) years after the Deloitte Entities' receipt of each item of Confidential Information from Client.

(b)    Nomura was engaged by Asahi for financial advisory services that included providing support for due diligences for the acquisition and coordinating legal advisers, pursuant to a written engagement agreement between Asahi and Nomura dated July 2011. The copy produced for my perusal was in Japanese. Mr Barry swore that a translator had advised Corrs that obligations as to confidentiality were contained in cl 3.

(c)    Rothschild was engaged by Asahi to provide services as a co-financial adviser for the acquisition, including to participate in the review of the due diligence reports of other advisers and to work with Asahi's legal adviser in communications with regulatory authorities, pursuant to an engagement letter from Rothschild to Asahi dated 1 August 2011. That engagement letter contained obligations as to confidentiality at cl 13 of Annexure A which provided:

13. Confidentiality

13.1 Other than as permitted by these Terms and Conditions, Rothschild must during the term of the engagement and for a period of two years from the expiration or termination thereof:

13.1.1 keep confidential any Confidential Information; and

13.1.2 not use the Confidential Information for any purpose other than in connection with the Transaction.

13.2 You acknowledge that Rothschild is:

13.2.1 permitted to make disclosures containing or concerning Confidential Information required by any law, regulation or order of a competent court or regulatory body, or pursuant to governmental action, regulatory requirement or request, or which is reasonably necessary in Rothschild's view to seek to establish any defence in any legal proceeding or investigation or otherwise to comply with the Rothschild Group's regulatory obligations or insurer's requests, provided that Rothschild shall consult with you prior to such disclosure;

13.2.2 not obliged to treat any Confidential Information as confidential which was already known to Rothschild prior to its being obtained from you or becomes known to Rothschild from a source not known to Rothschild to be subject to an obligation to you to keep such information confidential; and

13.2.3 permitted to make any disclosure containing or concerning Confidential Information to Rothschild's Associates (subject to Rothschild's information barriers policy) and its or your professional advisers. Rothschild may also make any other disclosures or announcements containing or concerning Confidential Information where you give prior consent in writing to such disclosure.

13.3 Where your in-house counsel or external lawyers or other professional advisers have been retained to work on the Transaction, you authorise Rothschild and those advisers to communicate Confidential Information to each other (including privileged information) if they consider it necessary to do so, provided that Rothschild keeps you informed of the contents of such communication.

(d)    Value Line was engaged by Asahi to conduct the commercial due diligence of the acquisition target, pursuant to an engagement letter from Value Line to Asahi dated 2 July 2011. That engagement letter contained obligations as to confidentiality at cl 11 of the Appendix.

(e)    Freehills was engaged by Asahi as its primary legal adviser for the acquisition process. Bell Gully was then engaged by Asahi to work with Freehills in the provision of New Zealand legal advice. Freehills was instructed to conduct legal due diligence and provide legal advice in respect of the Transaction, including in respect of the terms and documentation for the Transaction.

15    Mr Barry deposed that he was informed by Chihiro Iwasaki, an in-house lawyer for Asahi, that “throughout the transaction Nomura, Rothschild and Deloitte were requested to provide information and advice to Asahi and/or Freehills in relation to the terms and documentation for the transaction. However, where advice or information from Nomura, Rothschild or Deloitte impacted on the terms of the deal or the agreements, the advice or information was subject to further consideration by Freehills, as Asahi's primary legal adviser” and that “each of Deloitte Japan, Deloitte Australia, Nomura, Rothschild and Value Line was also from time to time involved in the receipt of legal advice from the legal advisers to Asahi concerning the acquisition.” I analyse the quality of this evidence later.

16    Further, Mr Barry deposed that he had considered each of the Documents and formed the view that the redacted portion of each Document was properly subject to a claim of legal professional privilege by the applicants. Mr Barry set out the basis for his belief with respect to each of the Documents.

17    On 25 July 2014, the Unitas Corporate Respondents filed an affidavit of Edward Philip Davies Martin affirmed on 25 July 2014, a senior associate employed by Allens (solicitor for the Unitas Corporate Respondents), in opposition to the privilege claims made by the applicants.

Submissions

18    The applicants filed an outline of written submissions on 24 July 2014. The Unitas Corporate Respondents filed an outline of written submissions in response on 25 July 2014. These well reasoned submissions were supplemented by oral argument on 28 July 2014.

19    The applicants, in summary, submitted that the relevant communications were confidential communications made for the dominant purpose of enabling Asahi to obtain legal advice from Freehills, or the communications contained or summarised legal advice, and that each third party adviser making or otherwise a party to the communications was required to preserve the confidentiality of those privileged communications.

20    The applicants primarily relied on Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 (Pratt) in submitting that privilege extends to third party documents in appropriate circumstances, and on the reasons of Gummow J in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (Propend) at 569 where his Honour held that privilege extends beyond any actual communication between lawyer and client seeking and providing legal advice, to any document prepared by a lawyer or client from which there might be inferred the nature of the advice sought or given.

21    The Unitas Corporate Respondents contended, in summary, that the evidence did not establish that each of the communications (and copies) in question were created for the dominant purpose of being used for or by Asahi to obtain or to be provided with legal advice. While communications involving the third party advisers may have referred to documents the subject of legal advice by Freehills, including by referring to the content of such documents or attaching such documents, that was insufficient to establish the requisite dominant purpose of the communication being for the provision of legal advice. The Unitas Corporate Respondents submit that Mr Barry’s affidavit evidences that the third party advisers “were requested to provide information and advice to Asahi and/or Freehills in relation to the terms and documentation for the transaction” and that the advice or information from the advisers “was subject to further consideration by Freehills”, falling short of discharging the applicants’ onus to establish a dominant purpose for legal advice.

22    It was further submitted that Pratt confirmed that while it is possible for third-party communications to satisfy the test for legal professional privilege, notwithstanding that such communications may have been between third party adviser and client and not directly to the client’s legal adviser, such claims had to be carefully scrutinised. Emphasis was placed on the judgment of Finn J at [46] where his Honour said that advice from financial or commercial advisers on a transaction “will rarely be capable of attracting privilege”.

23    The Unitas Corporate Respondents sought leave to cross-examine Mr Barry with respect to the exact nature of the services the third party advisers were retained by Asahi to provide. I granted limited leave. A succinct cross-examination followed. Mr Barry gave evidence that, inter alia, he was aware that there was an exclusion from the scope of Deloitte Japan’s work for Asahi with respect to the giving of any advice by Deloitte Japan on corporate law, employment laws, contract law, environmental law and any other legal issues.

24    On re-examination, the applicants sought to tender a further confidential and allegedly privileged document through Mr Barry. That document related to Document 19 [ROT.0001.0002.9886], and contained allegedly subsequently privileged communications in which third party advisers had provided comments to Asahi and Freehills in respect of the SSA for the purposes of a meeting between Asahi, Freehills, Deloitte, Rothschild and Nomura. This document apparently responded to part of the chain of emails contained in Document 19. This further tendered document was not assigned a unique electronic identification code.

25    Later in the hearing, the applicants tendered a further confidential and allegedly privileged document, assigned with the electronic identification code [DEL.0004.0065.0001]. Document [DEL.0004.0065.0001] related to Document 9 [DEL.0004.0020.0001], and contained allegedly subsequent privileged communications in which Deloitte provided comments to Asahi and Freehills in respect of legal advice provided by Freehills.

26    The Unitas Corporate Respondents did not object to the tendering of these 2 further documents. I accepted these 2 additional documents with the tender of the two folders of 27 unredacted documents filed by the applicants on 22 July 2014. I have considered the 2 additional documents below as they relate to Documents 9 and 19.

Statement of principles

27    This case deals with the legal advice limb of legal professional privilege rather than the litigation limb. The general principles I have applied are the following.

28    First, the claims for privilege are to be assessed under common law principles rather than under s 118 of the Evidence Act 1995 (Cth); the present case is not a context where there is an evidentiary dispute as to whether privileged communications should be adduced in evidence, whether at an interlocutory or final hearing. The relevant issue is whether the communications were created or made for the dominant purpose of the applicants or Asahi obtaining or being provided with legal advice or recorded such advice.

29    Second, the applicants bear the onus of establishing the claims, including each factual element necessary to establish the requisite dominant purpose. In that respect, focused and specific evidence is required in respect of each communication, rather than mere generalised assertion let alone opaque and repetitious verbal formulae. There should be sufficient evidence which proves directly or by inference that the dominant purpose for the communication was for the relevant client to be given or to obtain legal advice. The communication also has to be confidential. The fact of each communication being relevantly confidential is not in dispute in this case; the documents in dispute only circulated between or within Asahi, the lawyers and the third party advisers for the purposes of advising upon the Transaction, and where the latter were subject to specific contractual confidentiality constraints.

30    Third, the relevant time for ascertaining purpose is when the communication was made. If the communication was a written communication, the relevant time is when the document came into existence. If the communication was constituted by the forwarding of a copy document, the purpose for the creation of the copy document at the time that the copy was created is what is relevant.

31    Fourth, the relevant purpose may be either that of the author or initiator of the communication, or the person at whose request or under whose authority the communication was created or made. The circumstances will dictate the focus.

32    Fifth, the purpose is to be objectively ascertained. Evidence of the subjective intention of the author or person requesting the creation of the communication (document) is significant but not conclusive. Purpose can also be determined from the content of the document understood in its full context. Indeed, the latter analysis can carry greater weight, particularly over generalised hearsay or even compounded hearsay evidence from a person other than the author or person requesting the creation of the communication (document).

33    Sixth, it is not sufficient to show a substantial purpose or that the privileged purpose is only one of two or more purposes of equal weighting. The requisite purpose must predominate. It must be the paramount or most influential purpose. One practical test is to ask whether the communication would have been made (whether the document would have been brought into existence) irrespective of the obtaining of legal advice. If so, the communication (document) may not satisfy the dominant purpose test. Such a test will entail addressing the question of the intended use(s) of the document which accounted for it being brought into existence.

34    Seventh, it may be that that the entirety of a document may be privileged. Alternatively, it may be that only part of a document meets the dominant purpose test. A particular document may contain or consist of many communications, such as an email chain, only some of which were made for the requisite dominant purpose.

35    Eighth, a document may be privileged to the extent to which it records a privileged communication, even if the document itself would not satisfy the dominant purpose test.

36    Ninth, I have the power to examine the documents in question and should not be reticent in exercising that power. I have examined the Documents for the purpose of ascertaining the validity of the privilege claims.

37    So far these are well known principles of general application. But in this case many of the documents in question do not involve direct lawyer-client communications, but are rather third party adviser internal documents or communications between a third party adviser and Asahi. Accordingly, something more needs to be said. I have synthesised the following propositions from Pratt at [41]-[47] per Finn J and [105]-[107] per Stone J.

38    First, a communication made by a third party adviser to a client’s lawyer if made for the requisite dominant purpose of the client obtaining legal advice from the lawyer will be privileged. Direct evidence of purpose can come from the third party adviser, the lawyer or the client. The purpose may also be readily inferred given the directness of the communication from the third party adviser to the client’s lawyer. Further, it is not necessary to ask whether the third party adviser was acting as the agent of the client, including in making the communication to the client’s lawyer. The absence of such an agency does not deny the existence of the privilege attaching to the communication, although its presence may fortify it. In terms of the third party adviser’s status, the important characterisation is “not the nature of the third party’s legal relationship with the party that engaged it but, rather, the nature of the function it performed for that party” (Pratt at [41]).

39    Second, a communication made by a third party adviser to a client if made for the requisite dominant purpose of the client then obtaining legal advice will be privileged. Again, direct evidence of purpose can come from the third party adviser or from the client; it can also come from the lawyer, but that usually may not be as probative if the lawyer was not a party to the communication. The purpose is not as readily established as in the previous scenario.

40    Third, where a third party such as an accountant, broker, merchant banker, financial adviser, due diligence specialist and others of a non-legal genus perform work for a client in a non-litigation setting, care needs to be taken with analysing the precise purpose for each communication. Take a substantial acquisition or merger. A client may engage and seek advice from a number of non-legal advisers as well as consulting lawyers. Legal and non-legal advice might be sought on the structure, bid vehicle, terms and conditions of any offer or agreement, finance of the bid vehicle, due diligence of the assets and liabilities of the target, assessment of the financial metrics of the target pre and post-acquisition such as EBITDA including any underlying projections, and so forth. In short, legal and non-legal advice might be sought on the same topic so that the topic in all its dimensions is fully analysed by and for the client. The various advices given by the non-legal advisers “will rarely be capable of attracting privilege for the reason that they will almost invariably have the character of discrete advices to the principal as such, with each advice, along with the lawyer’s advice, having a distinctive function and purpose in the principal’s decision making…” (Pratt at [46]).

41    Even where all such advices are interrelated, that is, they provide a collective basis for an informed decision by the client, this does not deny the force of the previous point that non-legal advices will rarely attract privilege.

42    Fourth, if non-legal advices are provided to a client who then chooses to provide them to its lawyers, that does not clothe the original non-legal advices with privilege. They ordinarily will have been prepared for a non-legal purpose. But copies that might subsequently be created by a client and given to its lawyers may attract privilege (Propend). Generally, privilege does not extend to non-legal advices to the client simply because they are at the same time or later “routed” to a legal adviser.

43    Fifth, even if a client, in procuring a non-legal advice from a third party adviser has it in mind at the time that it requests that advice that it will also submit the non-legal advice to its lawyer, that may just demonstrate a multiplicity of purposes for the creation of the non-legal advice. But in such a scenario, the privileged purpose is unlikely to be the dominant purpose. Each communication and the reason for its creation needs to be carefully reviewed.

44    And in elaboration of this last point, a client may have conducted itself so as to demonstrate that the procurement and use of the non-legal advice was not for its communication to its lawyer, but rather to principally advise the client on the very subject matter of that non-legal advice. Further, the less the client performs the role of a conduit of that non-legal advice through to its lawyer and the more it “filters, adapts or exercises independent judgment” in relation to that advice, the less likely the dominant purpose test is likely to have been satisfied (Pratt at [47]). From such behaviour of the client, it can more readily be inferred that the dominant purpose for the creation of the non-legal advice was for a non-privileged purpose.

Application of principles to documents in question

45    In my view, the whole of Documents 5, 6 and 9 are privileged and need not be produced to the Unitas Corporate Respondents. As for Documents 1, 2, 3, 7 and 19, only parts of them are privileged. A redacted form of each of these documents should be produced to the Unitas Corporate Respondents in accordance with my reasons as set out below; no doubt the PEP Respondents would be entitled to the benefit of a similar order.

46    I have reviewed each of the Documents in unredacted form, but before addressing them, I should say something about the quality of the applicants’ affidavit evidence.

47    Mr Barry has no direct knowledge of the purpose for the creation of the various communications. He is at best several steps removed from the authors of the communications. First, Corrs were not the solicitors acting in the Transaction. Corrs are the solicitors now acting in this proceeding. Second, Mr Barry cannot directly speak to the direct knowledge of Asahi in relation to the purpose for these communications. Third, he cannot directly speak to the direct knowledge of any of the third party advisers in relation to the purpose for the communications to which they were parties.

48    There are two aspects to his evidence which are said to support the privilege claims. First, Mr Barry has reviewed the Documents and expressed views based on such a review. I do not consider that such analysis carries great probative value, particularly when one considers the more direct evidence that could have been given. In any event, I have undertaken the task of reviewing the Documents. Second, his review and expressions of opinion are clothed with the generalised statement in para 28 of his affidavit, which I have partly referred to earlier, which reads:

“I have been informed by Chihiro Iwasaki, who was involved in the transaction as in-house Attorney at Law in the Corporate Planning Department / External Growth & Development Section of Asahi, and I believe that throughout the transaction Nomura, Rothschild and Deloitte were requested to provide information and advice to Asahi and/or Freehills in relation to the terms and documentation for the transaction. However, where advice or information from Nomura, Rothschild or Deloitte impacted on the terms of the deal or the agreements, the advice or information was subject to further consideration by Freehills, as Asahi's primary legal adviser.”

49    There are difficulties with such a statement. The first sentence is unremarkable, but in its generality adds little to the specific issues that I need to address in relation to the specific communications. Further, the second sentence may not take the matter far either. A third party adviser may make a non-privileged communication to a client. The client may then pass that non-privileged communication or non-legal advice to its lawyer. The second communication would be privileged. But that does not entail that the first communication would be privileged. One needs to look carefully at the purpose for the first communication. In summary, I do not consider Mr Barry’s affidavit evidence to be of great weight. I accept though that time pressures concerning this application and locational issues regarding potential deponents may have played a part in the selection of the deponent and the level of detail that the applicants have chosen to descend to.

50    There is one other comment that I would make given Mr Barry’s reference to Chihiro Iwasaki. I have been mindful of the in-house legal role that Chihiro Iwasaki apparently played at Asahi. From time to time Chihiro Iwasaki appears in some parts of the email chains as a recipient. In many cases I have held such communications to be privileged for the reasons set out below. In other cases, I have held such emails not to be privileged. In such latter cases, the fact that Chihiro Iwasaki may have been a recipient together with many others has not changed my assessment; there has been no separate even hearsay evidence given on such emails which seeks to demonstrate that being such a recipient, as well as many others within Asahi, bolsters any privilege claim.

51    Let me turn to my review of each of the Documents.

Documents 1-3 [NOM.501.013.2122], [NOM.501.014.9826], [NOM.501.014.9830]

52    When counsel for the applicants was addressing me on each of these documents, he submitted that I should read Documents 1-3 together. This submission was made in the context where I had raised the possibility that if each of these documents were considered separately, then on their face they may not demonstrate the requisite dominant purpose to support the privilege claim, excepting certain parts thereof. I have accepted counsel’s invitation, but it is first convenient to address each document in turn.

Document 1 [NOM.501.013.2122]

53    The applicants described Document 1, and the basis of their privilege claims over the communications contained in that document, as follows:

“This document is an internal Nomura email. It contains an email chain and attachments. The email chain (starting from the first in time) contains:

(a)    an email between Nomura and Freehills which refers to documents which are subject to Freehills’ legal advice (past and future);

(b)    an internal Nomura email relating to Freehills;

(c)    an internal Nomura email referring to the contents of a document which is subject to Freehills’ legal advice (past and future);

(d)    a further internal Nomura email referring to the contents of documents which are subject to Freehills’ legal advice (past and future).

…

The Applicants rely on the common law of privilege including Pratt and Propend in maintaining the claim of privilege in this document. This document:

(a)    was, in part, prepared by Asahi for the dominant purpose of seeking and being provided legal advice from Freehills;

(b)    was, in part, prepared by Nomura for the dominant purpose of Asahi seeking and being provided legal advice from Freehills; and/or

(c)    reveals the content of a document in which Asahi has privilege.”

54    My review reveals that Document 1 is an internal Nomura document consisting of an email chain commenting on and attaching “Project Kentucky Indicative Offer_v8” (which I understand to be version 8) and various other attachments, including “Appendix A Investment Terms_Reserved Matters”, as described further below.

55    The first email of 17 June 2011 at 7.47 am is from Nomura to others within Nomura and also Freehills referring to documents received from Asahi. The applicants stated that this email refers “to documents which are subject to Freehills’ legal advice (past and future)”. Counsel made the submission that Freehills had had legal input into earlier versions and later versions of the Project Kentucky Indicative Offer (Indicative Offer). That may be so, but there are a number of deficiencies with the evidence.

56    First, the evidence does not disclose that Freehills had input into version 8 of the Indicative Offer. Second, even if it did, I do not see how the requisite privileged purpose is established for this first email and attachment in any event. Submission to Freehills may have been one purpose, but I cannot be satisfied on the evidence that it was the dominant purpose. There is no evidence given by Nomura, nor any direct and cogent evidence from Asahi, as to the purposes for the creation of this first email or indeed why Asahi first sent these documents to Nomura. I will park what I would describe as the applicants’ “continuum” argument for later discussion after I have dealt with Documents 1, 2 and 3 separately.

57    The second email of 17 June 2011 at 7.52 am refers to Freehills being communicated with. In my view this second email is privileged. The third email of 17 June 2011 at 9.27 am is a Nomura internal email. It refers to the same documents with elaboration. My view of the applicants’ claim that this email similarly refers to “the contents of a document which is subject to Freehills’ legal advice (past and present)” is the same as for the first email. In my view the third email is not privileged. The fourth email of 17 June 2011 at 10.29 am is a Nomura internal email of a similar description and the privilege claim is not made out.

58    With respect to the attachments to the emails contained in Document 1, the applicants asserted that:

“In addition, the attachments to the email are individually subject to claims for legal professional privilege. Later drafts of those attachments were subject to legal advice (Document 3, [NOM.501.014.9832], pg 2, pt 7 – pg 4, pt 2 [subject to legal professional privilege – redacted]).”

This is part of the applicants’ continuum argument which I will address shortly.

59    In summary, in my view, it has not been established on the evidence that the first, third and fourth emails with the attachments are privileged. This conclusion also takes into account the “continuum” argument which I will later discuss.

Document 2 [NOM.501.014.9826]

60    The applicants described Document 2, and the basis of their privilege claims over the communications contained in that document, as follows:

“This document is an internal Nomura email. It contains an email chain and attachments. The email chain (starting from the first in time) contains:

(a)    an internal Asahi email attaching documents which are subject to Freehills’ legal advice (past and future);

(b)    an internal Nomura email referring to the contents of a document which is subject to Freehills’ legal advice;

(c)    an internal Nomura email relating to Freehills.

…

The Applicants rely on the common law of privilege including Pratt and Propend in maintaining the claim of privilege in this document. This document:

(a)    was, in part, prepared by Asahi for the dominant purpose of seeking and being provided legal advice from Freehills;

(b)    was, in part, prepared by Nomura for the dominant purpose of Asahi seeking and being provided legal advice from Freehills; and/or

(c)    reveals the content of a document in which Asahi has privilege.

In addition, the attachments are individually subject to privilege being documents which are subject to Freehills’ legal advice (past and future)...”

61    My review reveals that Document 2 is an internal Nomura document consisting of an email chain, described as follows. I note that the applicants’ submissions referred to the document as including an attachment, but the document submitted to me in an unredacted form consists only of the email (although the email refers to an attachment). The first email is an Asahi internal email dated 20 June 2011 at 9.26 am. The applicants assert that it attaches “documents which are subject to Freehills’ legal advice (past and present)”. I cannot determine this from the first email. Moreover, that phrase has the same problems I referred to earlier. In my view, the privilege claim is not substantiated. The second email at 9.27 am can be similarly analysed. In my view, privilege is not substantiated. The third email at 1.33 pm does refer to a communication with Freehills. In my view it is privileged. These conclusions also take into account the “continuum” argument.

Document 3 [NOM.501.014.9830]

62    The applicants described Document 3, and the basis of their privilege claims over the communications contained in that document, as follows:

“This document is an internal Nomura email. It contains an email chain and attachments. The redacted part of the email chain (starting from the first in time) contains:

(a)    an email from Nomura to Freehills and Asahi attaching documents which are subject to Freehills’ legal advice (past and future);

(b)    an email from Freehills to Asahi and Nomura;

(c)    an internal Nomura email relating to Freehills;

(d)    an internal Nomura email referring to the contents of a document which is subject to Freehills’ legal advice.

…

The Applicants rely on the common law of privilege including Pratt and Propend in maintaining the claim of privilege in this document. This document:

(a)    was, in part, prepared by Freehills for the dominant purpose of Asahi seeking and being provided legal advice from Freehills;

(b)    was, in part, prepared by Nomura for the dominant purpose of Asahi seeking and being provided legal advice from Freehills; and/or

(c)    reveals the content of a document in which Asahi has privilege.”

63    My review reveals that Document 3 is an internal Nomura document consisting of an email chain and attachment. The attachment is apparently the final version of the Indicative Offer. The attachment and the last email in the chain have been produced to the applicants without a privilege claim being made. The email chain consists of 5 emails, with privilege claimed over the first four emails.

64    The first email dated 20 June 2011 at 1.46 pm is from Nomura to Freehills, copied to others, attaching draft documents. In my view it is privileged. The second email at 2.43 pm from Freehills back to Nomura giving advice is also privileged. The third email at 4.37 pm is an internal Nomura email. The applicants assert that this email is of a type “relating to Freehills”. On its face it does not relate to Freehills. Moreover, I do not know what this precisely means in any event in terms of how it assists me to methodically analyse each privilege claim in respect of each relevant communication. Privilege is not established. The fourth email at [4.32 pm] is another internal Nomura email. I have square bracketed the time to show it as it appears in the sequence of the email chain, although the apparent time is clearly not synchronised. In my view, and subject to the continuum argument, it is not privileged. Again, the applicants repeated the verbal formula that the communication refers “to the contents of a document which is subject to Freehills’ legal advice”.

65    Let me now address the applicants’ “continuum” argument. The argument appeared to run along the following lines. Freehills had been briefed to advise on, and had advised on, various drafts of the Indicative Offer. Such drafts that it had advised on would necessarily be modified to incorporate Freehills’ advice. Such drafts would from time to time be circulated to other non-legal advisers of Asahi such as Nomura. Nomura would also look at these drafts and provide input to the client on these drafts. Other non-legal advisers of Asahi performed similar roles. Freehills as the lead legal advisers would sign off on the final form. I am prepared to accept the accuracy of the description of this process in its generality, and I have analysed the Documents in that general context. But I am not sure where it really takes the applicants in establishing their specific privilege claims to each of Documents 1-3.

66    First, I do not have specific and direct evidence in relation to each version of the Indicative Offer, including version 8 (as considered above in respect of Document 1). Second, if the purpose for Nomura being provided with a draft, and its internal discussions, was for it to give commercial (non-legal) advice on the terms and conditions, that is a non-privileged purpose; and that is the purpose I infer from the face of the documents and Nomura’s role. In that scenario, a copy would be given to Nomura for a non-privileged purpose. Further, I also accept that Nomura’s comments may have ultimately been fed back to Freehills. But that does not establish Nomura’s internal communications as being for the requisite dominant purpose. Further, the changes which produced version 8, on the evidence all appear to be Nomura’s handiwork.

67    I do not accept the argument that where you have an important transactional document where multiple non-legal advisers are providing their own commercial (non-legal) advice, together with the legal advisers, who are the ultimate gate keepers, that the non-legal advisers internal considerations and their separate advice, ipso facto is for a dominant privileged purpose. And that is so even if the non-legal advice is ultimately passed back to the lawyers, directly or through the client. Each specific communication needs to be looked at with considerable care. Prima facie, the internal non-legal adviser considerations would not be for a dominant privileged purpose.

68    It was also said that if a non-legal adviser was provided with a draft document that may have been considered by Freehills, then it contained embedded within it Freehills’ advice. Therefore it was said to be separately protected as a document from which the nature of legal advice might be inferred. I am not sure whether I need to deal with that argument on the facts. Document 1 referred to version 8, but there was no specific and direct evidence of Freehills’ input into versions 7 or 8. Moreover, in my view it is a stretch to say that the draft provided to Nomura “records” legal advice. The draft is a composite product of the inputs of the client and all non-legal and legal input. It is not reasonable to say that the draft and subsequent drafts remain privileged simply because at some point there was legal input or at the end point the lawyers signed off.

69    There are further conceptual problems with this idea that in a sequence of drafts of a particular document, if a lawyer has input into a draft, then all later drafts are privileged. What happens if the first draft was created by the client, say a letter of offer or heads of agreement? What happens if the first draft is created by a non-lawyer third party adviser? What happens if for later drafts there is 90% input from non-lawyer third party advisers and 10% input from the lawyers? What happens if the lawyer adds or changes no content to the non-lawyers’ draft, but advises that it is acceptable? The advice is privileged, but the draft? To accept the breadth of the applicants’ submissions would be to accept that privilege applies to these drafts.

70    Moreover, it is to be recalled that Gummow J in Propend at 569 was referring to “any document prepared by a lawyer or client from which there might be inferred the nature of the advice sought or given”. It is difficult to see how that could be said in generality in relation to drafts of letters of offer or agreements when numerous lawyers and non-lawyers have had input into each “finalised” draft. Unless for a specific draft, something can be pointed to such as “lawyer only” mark ups, in my view you cannot simply say that the whole draft is privileged. More precise detail is required. On the facts of this case, I have no such detail. This is not a case where the particular communications that I am dealing with are draft agreements prepared by a lawyer or the draft agreements are prepared by others but with a lawyer’s handwritten observations, notes and cancellations thereon, which are privileged (see Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 at 332-334 per Anderson J).

71    Finally, my attention was drawn by the applicants to Balabel and Another v Air India [1988] Ch 317 at 330 where Taylor LJ said:

Although originally confined to advice regarding litigation, the privilege was extended to non-litigious business. Nevertheless, despite that extension, the purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence. In my judgment, therefore, the test is whether the communication or other document was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly. Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and client. The negotiations for a lease such as occurred in the present case are only one example. Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as "please advise me what I should do." But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.

72    This appears to be the genesis of the continuum argument. I am not sure that it adds much to the present issues. It is dealing with the one to one links between solicitor and client. But the present case is different. Here, we are dealing with many more heterogeneous links where non-legal advisers are being interposed at many points. The metaphor of a continuum is not apposite to the multi-dimensional communications between a client, various solicitors and multiple third party advisers involved in a complex transaction. His Lordship also makes the point that the content of a privileged communication can be quite simple, if not prosaic and unadorned with precise legal content. I agree. In my review of the documents I have kept this in mind.

Document 5 [ROT.0001.0002.2411]

73    The applicants described Document 5, and the basis of their privilege claims over the communications contained in that document, as follows:

“This document is an internal Rothschild document. It is an email chain. The email contains:

(a)    an email from Freehills to Asahi, Rothschild, Nomura and Bell Gully attaching documents which are subject to Freehills’ legal advice;

(b)    an email from Nomura to Freehills, Asahi, Rothschild and Bell Gully;

(c)     an email from Rothschild to Nomura referring to the contents of a document which is subject to legal advice.

…

The Applicants rely on the common law of privilege including Pratt and Propend in maintaining the claim of privilege in this document. This document:

(a)    was, in part, prepared by Freehills for the dominant purpose of Asahi seeking and being provided legal advice from Freehills;

(b)    was, in part, prepared by Rothschild for the dominant purpose of Asahi seeking and being provided legal advice from Freehills; and/or

(c)    reveals the content of a document in which Asahi has privilege.”

74    My review reveals that Document 5 is an internal Rothschild document consisting of an email chain. The first email of 22 July 2011 at 6.07 pm is an email from Freehills to Asahi, Rothschild, Nomura and Bell Gully attaching a document which had been the subject of advice or input from Freehills. The second email at 6.11 pm is an email from Nomura to Freehills, Asahi, Rothschild and Bell Gully referring to that document. The third email at 9.17 pm is an email from Rothschild to Nomura and copied to Freehills referring implicitly to the document and its contents.

75    Not without some hesitation, I find that the dominant purpose test is satisfied. The first email was prepared by Freehills for the dominant purpose of giving legal advice to Asahi. The second email was prepared by Nomura also for that purpose or continuing the purpose of Freehills. The third email was prepared by Rothschild also for that purpose or continuing Freehills’ purpose. I am fortified by the following matters. First, the email chain is initiated by Freehills. Second, Freehills is a party to each email in the chain. Third, the email chain as to its topic deals with a document’s contents that have been the subject of specific legal advice given by Freehills. Fourth, the first and second emails specifically refer to advice given by Freehills concerning the disposition of the document; I cannot comment on the characterisation of that advice, but only that the first and second emails refer thereto. In my view, the email chain and each part thereof is a privileged communication.

Document 6 [DEL.0004.0045.0001]

76    The applicants described Document 6 in their written submissions as follows:

“This document is an internal Deloitte email. It is an email chain with attachments. The redacted part of the email chain contains an email from Freehills to Asahi, Nomura, Rothschild and Bell Gully attaching legal advice to Asahi.

…

The redacted part of the email and its attachments are documents prepared by Freehills for the dominant purpose of providing legal advice to Asahi.”

77    The Unitas Corporate Respondents concede that “insofar as this document (which is a chain of email communications with attachments) comprises confidential communications containing legal advice provided by Freehills to Asahi, the Respondents do not press their challenge to the claim for privilege”.

78    My review reveals that Document 6 is an internal Deloitte document consisting of an email chain described as follows. The first email of 26 July 2011 at 4.20 pm is an email from Freehills to Asahi, Nomura, Rothschild and Bell Gully. It attaches documents constituting legal advice prepared by Freehills and Bell Gully. In my view the first email and its attachments [DEL.0004.0045.0003-0253 and DEL.0004.0045.0254-0369] are privileged as they constitute legal advice to Asahi and satisfy the dominant purpose test.

79    The second email of 27 July 2011 at 12.00 pm is an internal Deloitte email that circulates within Deloitte the first email and attachments. It is privileged to the extent that it incorporates and thereby records such legal advice (in terms of the attachments to the email), even if the second email itself was not otherwise privileged.

80    I am inclined to consider, not without reluctance, that the second email is also privileged as it forms part of the consideration by Deloitte internally of the legal advice provided to Asahi, but still under the umbrella of the privileged purpose. But if the second email was not privileged, that finding would not apply to the attachments, which are privileged in any event. In summary, Document 6 (with its attachments) is privileged.

Document 7 [NOM.501.015.5803]

81    The applicants described Document 7, and the basis of their privilege claims over the communications contained in that document, as follows:

“This document is an internal Nomura email. The document is an email with an attachment. The email chain (starting from the first in time) contains:

(a)    an internal Nomura email referring to a document which is subject to Freehills’ legal advice;

(b)    a further internal Nomura email referring to the contents of a document which is subject to Freehills’ legal advice.

…

The Applicants rely on the common law of privilege including Pratt and Propend in maintaining the claim of privilege in this document. This document:

(a)    was, in part, prepared by Asahi for the dominant purpose of Asahi seeking and being provided legal advice from Freehills;

(b)    was, in part, prepared by Nomura for the dominant purpose of Asahi seeking and being provided legal advice from Freehills; and/or

(c)    reveals the content of a document in which Asahi has privilege.

In addition, the attachment to the email is individually subject to claims for legal professional privilege on the basis that it contains Freehills’ legal advice to Asahi. (Document 7, [NOM.501.015.5803], pg 1, pt 8 [subject to legal professional privilege – redacted]).”

82    My review reveals that Document 7 is an internal Nomura document described as follows. It consists of an email chain with attachments. The first email is on 28 July 2011 at 5.50 pm. I do not see how the email itself is privileged. Nomura is considering and circulating a document not in any legal advice matrix but rather as a non-legal adviser. The first line does however refer to Freehills and it should be redacted.

83    The second email of 28 July 2011 at 8.22 pm refers to an attachment which is a draft document embodying Nomura’s changes. I do not see how the email itself is privileged. The email should be produced. As to the attachment, which is a draft document embodying Nomura’s changes, an earlier draft may have had input from Freehills and also other third party advisers, but for the reasons discussed earlier that does not make the attachment to this email with Nomura’s changes a privileged document per se.

Document 9 [DEL.0004.0020.0001]

84    The applicants described Document 9, and the basis of their privilege claims over the communications contained in that document, as follows:

“This document is an internal Deloitte email. The document is an email chain with an attachment. The email chain (starting from the first in time) contains:

(a)    an email from Asahi to Freehills and Deloitte attaching earlier emails between Asahi and former employees of FBGHL seeking legal advice from Freehills;

(b)    an email from Freehills to Asahi providing legal advice;

(c)    four internal Deloitte emails referring to the contents of the Freehills’ legal advice.

…

The Applicants rely on the common law of privilege including Pratt and Propend in maintaining its claim of privilege in this document. This document:

(a)    was, in part, prepared by Asahi for the dominant purpose of Asahi seeking and being provided legal advice from Freehills;

(b)    was, in part, prepared by Freehills for the dominant purpose of Asahi seeking and being provided legal advice from Freehills;

(c)    was, in part, prepared by Deloitte for the dominant purpose of Asahi seeking and being provided legal advice from Freehills; and/or

(d)    reveals the content of a document in which Asahi has privilege.”

85    The Unitas Corporate Respondents concede that “insofar as this document (which is a chain of email communications with attachments) comprises confidential communications containing legal advice provided by Freehills to Asahi, the Respondents do not press their challenge to the claim for privilege”.

86    My review reveals that Document 9 is an internal Deloitte document consisting of an email chain described as follows. The first email is an email dated 8 October 2011 at 4.53 pm from Asahi to Freehills and Deloitte seeking legal advice from Freehills; on its face it also appears to seek advice from Deloitte, but I am prepared to accept that the dominant purpose was to seek legal advice from Freehills. The email also attaches or has copied on to it earlier emails between Asahi and former employees of FBGHL (emails of 2 September 2011 at 1.53 pm, 2 October 2011 at 2.30 pm, 4 October 2011 at 12.48 pm and 4 October 2011 at 2.54 pm). Those copies appear to have been created to attach to or copy into the email to Freehills and are therefore privileged (see Propend).

87    The second email is an email dated 10 October 2011 at 5.42 pm from Freehills back to Asahi. It is also privileged. The third email is an email of 10 October 2011 at 7.31 pm from Freehills to Asahi and others including Deloitte, providing and containing the legal advice requested. It is also privileged.

88    Then, there are four internal Deloitte emails discussing the topic covered in the Freehills’ advice (10 October 2011 at 10.25 pm, 11 October 2011 at 4.09 am, 11 October 2011 at 6.18 am and 11 October 2011 at 6.27 am). A number of things should be said about these four internal Deloitte emails. On their face alone, I was not satisfied that the four emails were created for the dominant purpose of providing legal advice, whether one looks at purpose from the perspective of the authors of the emails or Asahi. The emails appeared to relate to commercial, but non-legal, considerations. The one exception was one line of the email dated 11 October 2011 at 4.09 am, which refers to legal advice.

89    As I have already said at [25], during the course of argument, counsel for the applicants handed up Document [DEL.0004.0065.0001], which contains an email chain which puts in context the four internal Deloitte emails. This email chain ends in an email dated 11 October 2011 at 12.19 (I assume 12.19 am, but this is unclear), which contains the advice of Deloitte to Asahi on the same topic. It is also copied to Nomura and Freehills. Moreover, it refers to Freehills’ advice. The earlier parts of the email chain are in essence the same as parts of the email chain produced as Document 9. When Document [DEL.0004.0065.0001] is read together with Document 9, I am satisfied that both Document 9 and Document [DEL.0004.0065.0001] are privileged.

Document 19 [ROT.0001.0002.9886]

90    The applicants described Document 19, and the basis of their privilege claims over the communications contained in that document, as follows:

“This document is an email from Nomura to Asahi, Freehills, Bell Gully, Deloitte, Rothschild and Tohmatsu. It contains an email chain. The email chain (starting from the first in time) contains:

(a)    an email from Freehills to Asahi, Bell Gully, Deloitte, Nomura, Rothschild and Tohmatsu containing Freehills’ legal advice;

(b)    an email from Asahi to Freehills, Bell Gully, Deloitte, Nomura, Rothschild and Tohmatsu referring to Freehills’ legal advice;

(c)    a further email from Freehills to Asahi, Bell Gully, Deloitte, Nomura, Rothschild and Tohmatsu containing Freehills’ legal advice;

(d)    a further email from Asahi to Freehills, Bell Gully, Deloitte, Nomura, Rothschild and Tohmatsu referring to Freehills’ legal advice;

(e)    a further email from Asahi to Freehills, Bell Gully, Deloitte, Nomura, Rothschild and Tohmatsu referring to Freehills’ legal advice;

(f)    a further email from Freehills to Asahi, Bell Gully, Deloitte, Nomura, Rothschild and Tohmatsu containing Freehills’ legal advice;

(g)    a further email from Asahi to Freehills, Bell Gully, Deloitte, Nomura, Rothschild and Tohmatsu referring to Freehills’ legal advice;

(h)    an email from Asahi to Freehills, Bell Gully, Deloitte, Nomura, Rothschild and Tohmatsu referring to Freehills’ legal advice;

(i)    an email from Nomura to Asahi, Freehills, Bell Gully, Deloitte, Rothschild and Tohmatsu referring to Freehills’ legal advice.

The Applicants rely on the common law of privilege including Pratt and Propend in maintaining the claim of privilege in this document. This document:

(a)    was, in part, prepared by Asahi for the dominant purpose of Asahi seeking and being provided legal advice from Freehills;

(b)    was, in part, prepared by Freehills for the dominant purpose of Asahi seeking and being provided legal advice from Freehills;

(c)    was, in part, prepared by Nomura for the dominant purpose of Asahi seeking and being provided legal advice from Freehills; and/or

(d)    reveals the content of a document in which Asahi has privilege.”

91    The Unitas Corporate Respondents concede that “insofar as this document (which is a chain of email communications with attachments) comprises confidential communications containing legal advice provided by Freehills to Asahi, the Respondents do not press their challenge to the claim for privilege”.

92    My review reveals that Document 19, a document produced by Rothschild, is an email chain containing numerous emails, many of which record legal advice and/or record communications between Freehills on the one hand and Asahi and its advisers on the other hand. The first email is from Freehills to Asahi and others on 7 August 2011 at [5.37 pm] containing legal advice. The second email is from Asahi to Freehills and others at [7.02 pm] responding to Freehills and the advice given. The third email is from Freehills in response to Asahi and others at [6.09 pm] providing further legal advice. The fourth email is from Asahi back to Freehills and others at [6.23 pm] responding to Freehills’ advice. The fifth email at [7.55 pm] is from Asahi to Freehills and other seeking Freehills further assistance. The sixth email at [7.05 pm] is from Freehills back to Asahi and others dealing with Freehills’ further assistance. The seventh email at [7.22 pm] is from Asahi back to Freehills and others.

93    Just stopping at this point, in my view the communications up to this point in time in the email chain (the seven emails) are clearly privileged; either the communications themselves are privileged or they record the content of legal advice.

94    The issue that I have relates to the three later emails [11.39 pm] and [11.51 pm] on 7 August 2011 and [1.04 am] on 8 August 2011. These emails deal with much broader topics than the topics of the seven emails referred to above. Moreover, it is apparent that they do not have at their heart the giving or receiving of legal advice per se or record just legal advice. True it is that some parts of the [11.39 pm] email on 7 August 2011 and the [1.04 am] email on 8 August 2011 (which contains a Japanese translation of the same), refer to legal topics. But the content and subject matter goes beyond this.

95    When I raised this question with counsel, the applicants produced the further email chain I described earlier at [24], which sought to put these three later emails into context. Essentially the further email chain showed, inter-alia, a further email from Freehills to Asahi and others, including Deloitte, at [11.28 pm] on 7 August 2011 circulating marked up versions of the SSA and Escrow Agreement with legal advice thereon and, ultimately, on 8 August 2011 at 10.36 am, Deloitte comments on the Freehills’ work (attaching a Deloitte memorandum). This email chain also referred to a meeting/conference call at or with Freehills at 11.00 am on 8 August 2011 to discuss the Freehills’ documents. This further email chain was said to support the applicants’ contention that the last three emails discussed earlier, and forming part of Document 19, were really to be confined to a discussion of the SSA and the Escrow Agreement as per the further email chain. I do not accept that submission. The last three emails in my view deal with a number of broader topics.

96    I am prepared to accept that the further email chain tendered is privileged. I am also prepared to accept that some of the content in the last three emails contained in Document 19 is privileged and ought to be redacted, including the corresponding parts of the Japanese translation. I will discuss with counsel which parts should be redacted. My intention is to have redacted those parts of the emails that refer to advice or discussions concerning the content of the SSA and Escrow Agreement, but not otherwise. In summary, the last three emails contained in Document 19 should be produced, but only in a redacted form.

Conclusion

97    In summary, as I have said earlier, I find that the whole of Documents 5, 6 and 9 are privileged and need not be produced to the Unitas Corporate Respondents. A redacted form of each of Documents 1, 2, 3, 7 and 19, should be produced to the Unitas Corporate Respondents in accordance with my reasons.

Associate:

Dated:    1 August 2014

Schedule Of Parties

    No: (P)VID87/2013

Federal Court of Australia

District Registry: Victoria

Division: General

Second Applicant:    INDEPENDENT LIQUOR (NZ) LIMITED

Second Respondent:    UNITAS CAPITAL PTE. LTD.

Third Respondent:    EAGLE COINVESTMENT PTY LIMITED (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 (AUSTRALIASIA) PTY LIMITED (AS TRUSTEE FOR THE PACIFIC EQUITY PARTNERS FUND III (AUSTRALASIA) UNIT TRUST)

Sixth Respondent:    PACIFIC EQUITY PARTNERS FUND III (AUSTRALIASIA) PTY LIMITED (AS TRUSTEE FOR THE PACIFIC EQUITY PARTNERS SUPPLEMENTARY FUND III (AUSTRALIA) 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

Tenth Respondent:    RICKARD JAN ROLF GARDELL

Eleventh Respondent:    ANTONY JOHN DUTHIE

Twelfth Respondent:    SIMON DAVID PILLAR

Thirteenth Respondent:    GEOFFREY JOHN HUTCHINSON

Fourteenth Respondent:    EUGENE WON SUH

Fifteenth Respondent:    JULIAN ALEXANDER BUCKLEY

Sixteenth Respondent:    PHILLIP MICHAEL BOWER

Seventeenth Respondent:    PEP ADVISORY III PTY LTD

Eighteenth Respondent:    UNITAS CAPITAL PTY LTD

Nineteenth Respondent:    AIG INSURANCE NEW ZEALAND LIMITED (NZBN 942 903 131 0048)

Twentieth Respondent:    ALLIED WORLD ASSURANCE COMPANY (EUROPE) LIMITED

Twenty First Respondent:    BEAZLEY SOLUTIONS LIMITED

Twenty Second Respondent:    CONTINENTAL CASUALTY COMPANY OF CNA OPEN BROKERAGE CLAIMS

Twenty Third Respondent:    HISCOX SYNDICATES LIMITED

Twenty Fourth Respondent:    NOVAE SYNDICATES LIMITED

Twenty Fifth Respondent:    BRIT SYNDICATES LIMITED

Twenty Sixth Respondent:    R J KILN & CO LIMITED

Twenty Seventh Respondent:    ASPEN MANAGING AGENCY LIMITED

FIRST CROSS CLAIM

First Cross Calimant:    PACIFIC EQUITY PARTNERS PTY LIMITED

Second Cross Claimant:    EAGLE COINVESTMENT PTY LIMITED (AS TRUSTEE FOR PACIFIC EQUITY PARTNERS FUND III CO-INVESTMENT TRUST)

Third Cross Claimant:    PACIFIC EQUITY PARTNERS FUND III (AUSTRALIASIA) PTY LIMITED (AS TRUSTEE FOR THE PACIFIC EQUITY PARTNERS FUND III (AUSTRALASIA) UNIT TRUST)

Fourth Cross Claimant:    PACIFIC EQUITY PARTNERS FUND III (AUSTRALIASIA) PTY LIMITED (AS TRUSTEE FOR THE PACIFIC EQUITY PARTNERS SUPPLEMENTARY FUND III (AUSTRALIA) UNIT TRUST)

Fifth Cross Claimant:    PACIFIC EQUITY PARTNERS FUND III GP (JERSEY) LIMITED AS GENERAL PARTNER OF PACIFIC EQUITY PARTNERS FUND III LP

Sixth Cross Claimant:    PACIFIC EQUITY PARTNERS FUND III GP (JERSEY) LIMITED AS GENERAL PARTNER OF PACIFIC EQUITY PARTNERS SUPPLEMENTARY FUND III LP

Seventh Cross Claimant:    PEP INVESTMENT PTY LIMITED

Eighth Cross Claimant:    RICKARD JAN ROLF GARDELL

Ninth Cross Claimant:    ANTONY JOHN DUTHIE

Tenth Cross Claimant:    SIMON DAVID PILLAR

Eleventh Cross Claimant:    GEOFFREY JOHN HUTCHINSON

Twelfth Cross Claimant:    PEP ADVISORY III PTY LTD

First Cross Respondent:    PETER MURPHY

Second Cross Respondent:    NICK MONTAGUE

Third Cross Respondent:    GREGORY ELLERY

Fourth Cross Respondent:    JULIAN DAVIDSON

SECOND CROSS CLAIM

First Cross Claimant:     UNITAS CAPITAL PTE. LTD.

Second Cross Claimant:    JOMARK INTERNATIONAL IV B.V.

Third Cross Claimant:    EUGENE WON SUH

Fourth Cross Claimant:    JULIAN ALEXANDER BUCKLEY

Fifth Cross Claimant:    PHILLIP MICHAEL BOWER

Sixth Cross Claimant:    UNITAS CAPITAL PTY LTD

First Cross Respondent:    PETER MURPHY

Second Cross Respondent:    NICK MONTAGUE

Third Cross Respondent:    GREGORY ELLERY

Fourth Cross Respondent:    JULIAN DAVIDSON

THIRD CROSS CLAIM

First Cross Claimant:    PETER MURPHY

Second Cross Claimant:    NICK MONTAGUE

Cross Respondent:    INDEPENDENT LIQUOR (NZ) LIMITED

FOURTH CROSS CLAIM

Cross Claimant:    GREGORY ELLERY

Cross Respondent:    INDEPENDENT LIQUOR (NZ) LIMITED

FIFTH CROSS CLAIM

Cross Claimant:     JULIAN DAVIDSON

Cross Respondent:    INDEPENDENT LIQUOR (NZ) LIMITED

SIXTH CROSS CLAIM

First Cross Claimant:    UNITAS CAPITAL PTE. LTD.

Second Cross Claimant:    JOMARK INTERNATIONAL IV B.V.

Third Cross Claimant:    UNITAS CAPITAL PTY LTD

First Cross Respondent:    AIG INSURANCE NEW ZEALAND LIMITED (NZBN 942 903 131 0048)

Second Cross Respondent:    ALLIED WORLD ASSURANCE COMPANY (EUROPE) LIMITED

Third Cross Respondent:    BEAZLEY SOLUTIONS LIMITED

Fourth Cross Respondent:    CONTINENTAL CASUALTY COMPANY

Fifth Cross Respondent:    UNDERWRITING MEMBERS OF LLOYD'S SYNDICATES 33, 2007, 2987, 4711 AND 510 IN RESPECT OF THE 2011 UNDERWRITING YEAR OF ACCOUNT

SEVENTH CROSS CLAIM

First Cross Claimant:    PACIFIC EQUITY PARTNERS PTY LIMITED

Second Cross Claimant:    EAGLE COINVESTMENT PTY LIMITED (AS TRUSTEE FOR PACIFIC EQUITY PARTNERS FUND III CO-INVESTMENT TRUST)

Third Cross Claimant:    PACIFIC EQUITY PARTNERS FUND III (AUSTRALIASIA) PTY LIMITED (AS TRUSTEE FOR THE PACIFIC EQUITY PARTNERS FUND III (AUSTRALASIA) UNIT TRUST)

Fourth Cross Claimant:    PACIFIC EQUITY PARTNERS FUND III (AUSTRALIASIA) PTY LIMITED (AS TRUSTEE FOR THE PACIFIC EQUITY PARTNERS SUPPLEMENTARY FUND III (AUSTRALIA) UNIT TRUST)

Fifth Cross Claimant:    PACIFIC EQUITY PARTNERS FUND III GP (JERSEY) LIMITED AS GENERAL PARTNER OF PACIFIC EQUITY PARTNERS FUND III LP

Sixth Cross Claimant:    PACIFIC EQUITY PARTNERS FUND III GP (JERSEY) LIMITED AS GENERAL PARTNER OF PACIFIC EQUITY PARTNERS SUPPLEMENTARY FUND III LP

Seventh Cross Claimant:    PEP INVESTMENT PTY LIMITED

Eighth Cross Claimant:    RICKARD JAN ROLF GARDELL

Ninth Cross Claimant:    ANTONY JOHN DUTHIE

Tenth Cross Claimant:    SIMON DAVID PILLAR

Eleventh Cross Claimant:    GEOFFREY JOHN HUTCHINSON

Twelfth Cross Claimant:    PEP ADVISORY III PTY LTD

First Cross Respondent:    AIG INSURANCE NEW ZEALAND LIMITED (NZBN 942 903 131 0048)

Second Cross Respondent:    ALLIED WORLD ASSURANCE COMPANY (EUROPE) LIMITED

Third Cross Respondent:    BEAZLEY SOLUTIONS LIMITED

Fourth Cross Respondent:    CONTINENTAL CASUALTY COMPANY

Fifth Cross Respondent:    UNDERWRITING MEMBERS OF LLOYD'S SYNDICATES 33, 2007, 2987, 4711 AND 510 IN RESPECT OF THE 2011 UNDERWRITING YEAR OF ACCOUNT

EIGHTH CROSS CLAIM

First Cross Claimant:    EUGENE WON SUH

Second Cross Claimant:    JULIAN ALEXANDER BUCKLEY

Third Cross Claimant:    PHILLIP MICHAEL BOWER

First Cross Respondent:    AIG INSURANCE NEW ZEALAND LIMITED (NZBN 942 903 131 0048)

Second Cross Respondent:    ALLIED WORLD ASSURANCE COMPANY (EUROPE) LIMITED

Third Cross Respondent:    BEAZLEY SOLUTIONS LIMITED

Fourth Cross Respondent:    CONTINENTAL CASUALTY COMPANY

Fifth Cross Respondent:    UNDERWRITING MEMBERS OF LLOYD'S SYNDICATES 33, 2007, 2987, 4711 AND 510 IN RESPECT OF THE 2011 UNDERWRITING YEAR OF ACCOUNT

NINTH CROSS CLAIM

Cross Claimant:    AIG INSURANCE NEW ZEALAND LIMITED (NZBN 942 903 131 0048)

First Cross Respondent:    PETER MURPHY

Second Cross Respondent:    NICK MONTAGUE

Third Cross Respondent:    GREGORY ELLERY

Fourth Cross Respondent:    JULIAN DAVIDSON

TENTH CROSS CLAIM

First Cross Claimant:    ALLIED WORLD ASSURANCE COMPANY (EUROPE) LIMITED

Second Cross Claimant:    BEAZLEY SOLUTIONS LIMITED

First Cross Respondent:    PACIFIC EQUITY PARTNERS PTY LTD ACN 082 283 949

Second Cross Respondent:    PEP ADVISORY III PTY LTD

Third Cross Respondent:    UNITAS CAPITAL PTE. LTD.

Fourth Cross Respondent:    UNITAS CAPITAL PTY LTD

Fifth Cross Respondent:    RICKARD JAN ROLF GARDELL

Sixth Cross Respondent:    ANTONY JOHN DUTHIE

Seventh Cross Respondent:    SIMON DAVID PILLAR

Eighth Cross Respondent:    GEOFFREY JOHN HUTCHINSON

Ninth Cross Respondent:    EUGENE WON SUH

Tenth Cross Respondent:    JULIAN ALEXANDER BUCKLEY

Eleventh Cross Respondent:    PHILLIP MICHAEL BOWER

Twelfth Cross Respondent:    PETER MURPHY

Thirteenth Cross Respondent:    NICK MONTAGUE

Fourteenth Cross Respondent:    GREGORY ELLERY

Fifteenth Cross Respondent:    JULIAN DAVIDSON

ELEVENTH CROSS CLAIM

First Cross Claimant:    CONTINENTAL CASUALTY COMPANY OF CNA OPEN BROKERAGE CLAIMS

Second Cross Claimant:    UNDERWRITING MEMBERS OF LLOYD'S SYNDICATES 33, 2007, 2987, 4711 AND 510 IN RESPECT OF THE 2011 UNDERWRITING YEAR OF ACCOUNT

First Cross Respondent:    PACIFIC EQUITY PARTNERS PTY LTD ACN 082 283 949

Second Cross Respondent:    PEP ADVISORY III PTY LTD

Third Cross Respondent:    UNITAS CAPITAL PTE. LTD.

Fourth Cross Respondent:    UNITAS CAPITAL PTY LTD

Fifth Cross Respondent:    RICKARD JAN ROLF GARDELL

Sixth Cross Respondent:    ANTONY JOHN DUTHIE

Seventh Cross Respondent:    SIMON DAVID PILLAR

Eighth Cross Respondent:    GEOFFREY JOHN HUTCHINSON

Ninth Cross Respondent:    EUGENE WON SUH

Tenth Cross Respondent:    JULIAN ALEXANDER BUCKLEY

Eleventh Cross Respondent:    PHILLIP MICHAEL BOWER

Twelfth Cross Respondent:    PETER MURPHY

Thirteenth Cross Respondent:    NICK MONTAGUE

Fourteenth Cross Respondent:    GREGORY ELLERY

Fifteenth Cross Respondent:    JULIAN DAVIDSON