FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd [2015] FCA 282

THE COURT ORDERS THAT:

1.    Subject to Order 2, the first respondent produce to the applicants, for inspection, all the documents identified in Exhibit A in this application (to the extent that such production has not already been made) other than the following documents (indicated by number in the exhibit) or parts of documents: 3; in relation to the second attachment comprising part of 5, the four panels in the first and second complete rows on the fourth page of the attachment, para (d)(ii) (excluding para (d)(ii)(a)) in the first incomplete row on page 6 of the attachment, and the two panels in the last row on the last page of the attachment; in relation to the attachment comprising part of 6, the portions of the document in red type; 9; 11 (other than the attachments comprising part of 11); 15; 17; 29-33; and 38.

2.    The first respondent’s claims of privilege in respect of documents 34 and 39 in Exhibit A be reserved for determination by Murphy J.

3.    The first respondent produce to the applicants, for inspection, all the documents identified in Exhibit B in this application other than the following documents (indicated by number in the exhibit) or parts of documents: 1; 2; 3 (in relation to those parts of the document that correspond to the red type in the attachment comprising part of document 6 referred to in Exhibit A); 4 (in relation to those parts of the document that correspond to the red type in the attachment comprising part of document 6 referred to in Exhibit A); 5 (in relation to the four panels in the first and second complete rows on the fourth page of the attachment, para (d)(ii) (excluding para (d)(ii)(a)) in the first incomplete row on page 6 of the attachment, and the two panels in the last row on the last page of the attachment); and 6-9.

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

REASONS FOR JUDGMENT

1    This proceeding is currently being heard by another Judge of the Court. It concerns claims by the applicants of contraventions by the first respondent of obligations in the Fair Work Act 2009 (Cth) in relation to the termination of employment of the second to fourth applicants (Adam John Giddings, Jason Rosewarn and Jennifer Arber) on 11 December 2014. The second respondent is alleged to have been knowingly involved in part of the first respondent’s conduct.

2    The contraventions alleged include the following:

    that the first respondent terminated the employment of Mr Giddings on 11 December 2014 for reasons including the fact that he was the local union branch president and had engaged in industrial activity;

    that the first respondent contravened clause 7 of the Port Kembla Coal Terminal Limited Enterprise Agreement 2012 – 2015 (the Agreement), which clause obliged it to engage in consultation concerning proposed workplace changes;

    that the first respondent contravened clause 13.5.1 of the Agreement by failing to utilise voluntary redundancies and redeployment in order to avoid forced redundancies; and

    that the first respondent contravened clause 13.5.3 of the Agreement by failing to investigate all avenues to avoid forced redundancies, including the reduction of contractors, where the work performed by contractors can be performed by employees of the company, having regard to the skills and competencies of the employees and the nature of the work in question.

3    It is part of the first respondent’s case that, during 2014, it undertook an organisational review which proposed the elimination of three positions: an administration assistant, and the positions of a Long Term Planner and Facilities Maintenance Engineer. The first respondent says that it commenced consultation with the workforce about those matters, and the compulsory redundancy of three employees, in the period between 2 and 11 December 2014.

4    I have been informed that the persons involved in the decision to terminate the employment of the second to fourth applicants include:

    Peter Green, General Manager;

    John Gorman, Operations Manager;

    Roger Stewardson, Engineering Manager;

    Flavio Tonini, Finance and Administration Manager; and

    Amy Linton, Acting Human Resources Manager, who was also a solicitor employed by Ashurst Australia (Ashurst), the respondents’ solicitors.

The notices to produce

5    The applicants served a notice to produce on the first respondent dated 17 February 2015 (the first notice to produce). Relevantly, the first notice to produce calls for the production of documents in the following categories:

6.    Any report, discussion paper or other document howsoever described recording any conclusion, suggestion or opinion of the Review that any or all of the positions of Administrative Assistant, Long Term Planner or Facilities Maintenance Engineer had become, or should be made, redundant, as referred to at paragraph 56 of the Green Affidavit [Affidavit of Peter Green affirmed and filed on 10 February 2015 in these proceedings].

7.    Any record of the meetings referred to in paragraphs 84, 85, 86, 87, 91, 93, 98, 101, 133, 134, 135 and 138 of the Green Affidavit.

8.    Any briefings or documentation prepared by any manager of Port Kembla Coal Terminal Limited concerning any aspect of the proposed restructure as referred to at paragraph 132 of the Green Affidavit.

…

13.    Any record of the meetings referred to at paragraphs 21, 23, 34, 39, 52, 53, 56, 64, 65, 66, 71, 76, 78, 80, 82, 85, 92, 96 of the affidavit of Roger Stewardson affirmed and filed on 10 February 2015 in these proceedings (“Stewardson Affidavit”).

6    The applicants served a further notice to produce on the first respondent dated 12 March 2015 (the second notice to produce). Relevantly, the second notice to produce calls for the production of documents in the following categories:

1.     All documents evidencing any consideration in 2014 by the respondent of:

a.    the abolition of the position known as Long Term Planner;

b.    the offering of voluntary redundancies;

c.    the redeployment of employees whose positions were to be abolished;

d.    whether any work performed by contractors could have been performed by employees of the respondent;

e.    matters raised by the first applicant, and/or Mr Adam Giddings, in the period from 2 – 11 December 2014 concerning the workforce restructuring proposals announced on 2 December 2014; and

f.    the requirements of clauses 7, 9, 13 and Item 4(k) of Appendix 1 of the Agreement with respect to any workforce restructuring proposals.

…

5.    All documents concerning the decisions to fill the following positions in 2014:

a.    Integrated Operations Planner;

b.    Shift Team Co-ordinator;

c.    Back Up Co-Ordinator; and

d.    Leave Relief Back up Co-ordinator.

7    The first respondent has objected to producing a number of documents that answer the call of the first notice to produce and the second notice to produce. It does so, in each case, on the basis of a claim of privilege, namely that the document was “for the purposes of seeking legal advice”.

8    These claims have been brought before me for urgent determination.

9    The claims are sought to be advanced in an affidavit affirmed by Stephen James Woodbury on 25 March 2015. Mr Woodbury is a partner of Ashurst. He is the solicitor on the record for the respondents, and has carriage of the proceeding on their behalf.

10    In his affidavit, Mr Woodbury refers to certain schedules listing each document for which the claim of privilege is made. The substance of Mr Woodbury’s affidavit evidence is that:

    the documents were either created for the dominant purpose of seeking legal advice from Ashurst, or contain legal advice provided by Ashurst;

    employees and partners of Ashurst are assigned initials which are used within the firm to identify or refer to that person. References in the documents to the initials “SJW” and “HFF” are to Mr Woodbury and to Ms Heidi Fairhall (a solicitor employed by Ashurst), respectively;

    all communications between Mr Woodbury and/or Ms Fairhall and any employee or manager of the first respondent occurred in the context of a lawyer-client relationship and as part of the retainer between the first respondent and Ashurst;

    none of the addressees of emails (identified in the tables) are persons who are not either employees, agents or directors of the first respondent or solicitors of Ashurst engaged to provide legal advice to the first respondent; and

    all emails sent by Ms Linton (see [4] above) from a given email address and/or which contain a signature block which includes Ms Linton’s Ashurst contact details and identifies her as a lawyer of Ashurst, are communications from her acting in her capacity as a solicitor of Ashurst, as part of the retainer between the first respondent and Ashurst.

11    Mr Woodbury was not cross-examined on his affidavit.

12    No evidence has been given by Ms Linton or Ms Fairhall in support of the first respondent’s claims for privilege. Similarly, no evidence has been given by any employee or officer of the first respondent in support of the claims of privilege.

13    The documents for which production is sought and in respect of which claims of privilege have been made, have been provided in two folders. Some of the documents are lengthy. No attempt has been made in Mr Woodbury’s affidavit to further explain the reason(s) for the creation of each document or its communication. The first respondent submitted that its claims of privilege are “clear from the contents of the documents”. The first respondent thus invites the Court to determine its claims of privilege by undertaking its own inspection of the documents with such assistance as is provided by Mr Woodbury’s affidavit (as to which, see [20] below), and its submissions.

Relevant principles

14    This application falls to be determined by reference to the common law respecting legal professional privilege, as declared in Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49. In that case, the High Court, by majority, held that the dominant purpose test, and not the sole purpose test, applies in determining whether the privilege attaches to a particular communication.

15    A formulation of the dominant purpose test was stated by Barwick CJ in Grant v Downs (1976) 135 CLR 674 at 677:

… a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.

16    In Trade Practices Commission v Sterling (1979) 36 FLR 244, Lockhart J noted various classes of documents in which legal professional privilege can exist. At 245-246, his Honour said:

Legal professional privilege extends to various classes of documents including the following:

(a)    Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. See Wheeler v. Le Marchant; Smith v. Daniell; Bullivant v. Attorney-General for Victoria; Jones v. Great Central Railway Co., and O'Rourke v. Darbishire.

(b)    Any document prepared with a view to its being used as a communication of this class, although not in fact so used. See Southwark Water Co. v. Quick.

(c)    Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance. See Hughes v. Biddulph.

(d)    Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. See Woolley v. North London Railway Co.; Greenough v. Gaskell; Corporation of Bristol v. Cox; Woolley v. Pole; Seabrook v. British Transport Commission; Grant v. Downs, and Bray, Principles and Practice of Discovery (1885) pp. 388-389.

(e)    Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. See Wheeler v. Le Marchant; Laurenson v. Wellington City Corporation, and O'Sullivan v. Morton.

(f)    Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. See Wheeler v. Le Marchant; Cork v. Union Steamship Co., and In Re Holloway.

(g)    Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent. See Kennedy v. Lyell and Lyell v. Kennedy (No. 2).

17    In the present case, the claims of privilege relate only to advice privilege.

18    The following principles, relevant to the present claims, emerge from the cases in relation to the question of purpose:

    A dominant purpose is to be understood in the sense of “the ruling, prevailing, paramount or most influential purpose”: Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 225 ALR 266 at [30] (Pratt); AWB Limited v Cole (2006) 152 FCR 382 at [105]; Wingecarribee Shire Council v Lehman Brothers Australia Limited (in liq) (No 5) [2011] FCA 245 at [18].

    If the most that can be said of a communication is that the purposes for which the communication (here, in each case, a document) comes into existence include a purpose of obtaining legal advice or assistance, the privilege will not apply: Esso at [50].

    For example, where two purposes for the creation of the document can be discerned, and they are of equal weight, neither is dominant in the relevant sense: Pratt at [30]. Similarly, if several purposes can be discerned, and they are of roughly similar weight, it cannot be said that one prevails over the other: AWB at [106]. Accordingly, a document is not privileged from production where one purpose for its creation is to obtain legal advice or assistance, but there are one or more other equally important purposes.

    The relevant time at which a claim for privilege is to be determined is the time when the document comes into existence: Barnes v Commissioner of Taxation (Cth) (2007) 242 ALR 601 at [5].

    When applying the dominant purpose test, an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 at [35].

    Where the document is immediately communicated by its author to several other persons, including the author’s legal adviser, such as by a circular email, it is also important to ask what was the dominant purpose of that email communication: AWB at [107].

    Ordinarily, the relevant purpose will be that of the author of the document. However, this will not always be the case. The relevant purpose may be found in the person under whose direction or authority, whether particular or general, the document was brought into existence or communicated: Grant at 677; see also Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 at [14].

    The evidence of the author’s intention, or of the person under whose direction or authority the document was brought into existence or communicated, is not necessarily conclusive of that purpose. The dominant purpose must be determined objectively, having regard to the evidence, the nature of the document and the parties’ submissions: Pratt at [30].

    The courts have recognised that legal advisers, in addition to providing legal advice, may also advise on more general or broader issues concerning the financial and commercial dealings of their clients. Although the courts have taken a pragmatic or realistic view where mixed advice is given, the test, nevertheless, remains whether the dominant purpose of the creation of the document was for the provision of legal advice or assistance. If the advice given by a legal adviser is predominantly for a financial, personal or commercial purpose, as opposed to seeking legal advice or assistance, it will not be protected by the privilege: Barnes at [8]. Thus, the fact that a document is provided to solicitors for advice is not determinative of the purpose for which it was created: Pratt at [30]

    The privilege can attach to a copy of a document, if the copy was made for the dominant purpose of obtaining legal advice: Barnes at [10]-[11].

    It is possible that an original document which is not created for the dominant purpose of seeking legal advice or assistance is not privileged, while a copy of the document may be privileged if made for the dominant purpose of obtaining legal advice or assistance. By the same token, an original document might be privileged, while a copy of the same document might not be privileged, such as where the copy is created for the purpose of commercial negotiation: Barnes at [11]. In that latter case, the consequence of the use of the copy may be the waiver of privilege in the original.

    Generally, an intra-company disclosure of legal advice in circumstances where the confidentiality of the advice is maintained will not result in loss of the privilege: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2000] FCA 593 at [9]-[10]; Seven Network Limited v News Limited [2005] FCA 1342 at [26].

    Where a document contains both privileged and non-privileged matter, it may be possible, in an appropriate case, to order disclosure of that part of the document which contains non-privileged matter whilst retaining the confidentiality of the privileged matter: Waterford v The Commonwealth of Australia (1987) 163 CLR 54 at 66, 87 and 103; GEC Marconi Systems at [11]; Grofam Pty Limited v Australia and New Zealand Banking Group Limited (1993) 43 FCR 408 at 414-417. That said, the presence in the document of matter other than legal advice may raise a question as to the purpose for which the document was brought into existence. This will be a question of fact: Waterford at 66.

19    The sufficiency of evidence to support a claim of legal professional privilege is an important consideration. In Barnes at [18], the Full Court said:

[18]    The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallace (2004) 142 FCR 185; 213 ALR 108; [2004] FCAFC 337 (Kennedy), Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (1991) 29 FCR 203 at 211; 100 ALR 151 at 158–60 (per Lockhart J); Grant at CLR 689; ALR 589 (per Stephen, Mason and Murphy JJ). Where possible the court should be assisted by evidence of the thought process behind, or the nature and purpose of advice being sought in respect of, each particular document. The fact that generalised evidence is not challenged in cross-examination does not mean that such evidence must be accepted, particularly when it is as manifestly inadequate as it is in this case. As in Kennedy, mere general assertions of the purpose of creation of the documents are insufficient to discharge this onus. Even though in that case some evidence as to the purpose of particular records was adduced, Allsop J at [168] considered that the onus had not been discharged because the evidence did not permit a conclusion to be drawn as to the dominant purpose of the creation of any particular document or entry in a document. Simply to show that one purpose for creation of the document was to obtain legal advice or assistance is not good enough.

20    These observations are particularly pertinent to the present case. I have gained little assistance from Mr Woodbury’s affidavit, which contains the kinds of verbal formulae and bare conclusory assertions to which the above passage refers.

Consideration

The first notice to produce

21    The documents answering the call of the first notice to produce in respect of which, initially, claims of privilege were made, are listed in a schedule which has been marked as Exhibit A. The documents are reproduced in a folder marked MFI-1.

22    The claims of privilege for documents 1, 5 (save for the second attachment), 12-14, 16, 18-28, and 35-37 in the schedule are not pressed. The claims of privilege in respect of the attachments comprising part of document 11 are not pressed.

23    No rulings are presently sought in respect of documents 34 and 39 in the schedule. The first respondent has indicated its desire to adduce further evidence to support its claims of privilege in respect of those documents. I was informed that the first respondent proposes to do this in the course of its evidence in chief to be given at the principal hearing by certain witnesses. The first respondent has made clear that it has no objection to the primary judge seeing these documents in order to rule on the claims of privilege with respect to them. The applicants raised no objection to this course.

24    I am satisfied on the balance of probabilities that the first respondent’s claims of privilege have been established in respect of documents 11 (other than the attachments comprising part of the document), 15, 17, 29-33 and 38.

25    I wish to make some specific comments with respect to documents 2-4, 5 (second attachment) and 6-10. Before making those comments, I note that a number of the documents contain footers or headers which make statements to the effect that the document is “private and confidential” and was “created for the purpose of gaining legal advice”.

26    Whilst notations of that kind bear some weight when considering a claim of legal professional privilege, in this case I treat them with some considerable caution. This is for two reasons.

27    First, the applicants referred me to some evidence adduced in the principal proceeding which makes clear that, even though a document was endorsed with the kind of statement to which I have referred, it was, in fact, created by the author for his own planning purposes: see the affidavit of John Gorman affirmed 10 February 2015, paragraph 24, Exhibit JG-1, Tab 9.

28    Secondly, my own inspection of a number of the documents containing such statements leave me unconvinced that the document was created for the purpose of obtaining legal advice, let alone that that was the dominant purpose for which the document was created or communicated. The problem for the first respondent is exacerbated by the fact that the author of the document has not given evidence as to the purpose for which the document was created. Further, neither Mr Woodbury (apart from the formulaic evidence to which I have referred) nor any other legal adviser to the first respondent has given evidence that he or she asked for the document to be created or communicated for the purpose of obtaining legal advice or assistance.

29    I now turn to consider the remaining documents.

30    Although document 2 is addressed to Mr Woodbury, Ms Fairhall and Ms Linton, amongst other addressees, on its face it appears to be reporting on a meeting and communicating a particular cost analysis undertaken on the author’s own initiative. I am not satisfied that the document was created or communicated for the dominant purpose of obtaining legal advice or assistance. The first respondent has not established its claim of privilege.

31    Document 3 is an email to Mr Woodbury, amongst other addressees, which includes an attachment. Mr Woodbury is specifically addressed in the email. The email refers to “tomorrow’s discussion”. I infer that this is an intended reference to a discussion between an employee or employees of the first respondent and Mr Woodbury. Although there is nothing on the face of the attachment to show that the original document was created for the dominant purpose of obtaining legal advice or assistance, the document, in the form of an attachment to the email specifically addressed to Mr Woodbury in the circumstances I have mentioned, appears to have been created and communicated for that purpose. I am satisfied, therefore, that the first respondent has established its claim of privilege in respect of document 3 (email and attachment).

32    Document 4 is an email addressed to Mr Woodbury, Ms Fairhall and Ms Linton, amongst other addressees. There is nothing on the face of the document to show that it was created or communicated for the dominant purpose of obtaining legal advice or assistance. The first respondent has not established its claim of privilege.

33    The second attachment comprising part of document 5 is endorsed: “CONFIDENTIAL AND PRIVILEGED – for the purpose of obtaining legal advice”. It contains, in certain sections, a reference to legal advice given. I am satisfied that the first respondent has established its claim of privilege in respect of the four panels in the first and second complete rows on the fourth page of the attachment (the pages are not numbered), paragraph (d)(ii) (excluding paragraph (d)(ii)(a)) in the first incomplete row on page 6 of the attachment, and the two panels in the last row on the last page of the attachment. However, I am not satisfied that the balance of the attachment was created or communicated for the dominant purpose of obtaining legal advice or assistance, or of communicating legal advice. Thus, the first respondent has only established its claim of privilege in relation to document 5 in the particular parts of the attachment to which I have referred.

34    Document 6 is an email and attachment. The attachment is endorsed: “CONFIDENTIAL AND PRIVILEGED – for the purpose of obtaining legal advice”. I am satisfied that, in relation to the attachment, those portions in red type were created for the dominant purpose of obtaining legal advice or assistance. Otherwise, I am not satisfied that the email or the attachment were created or communicated for the dominant purpose of obtaining legal advice or assistance. Thus, the first respondent has only established its claims of privilege in relation to document 6 in the particular parts of the attachment to which I have referred.

35    Document 7 is an email and attachment. Mr Woodbury, Ms Fairhall and Ms Linton are addressees of the email, amongst other addressees. The email reports on certain matters. I am not satisfied that the document or its attachment were created or communicated for the dominant purpose of obtaining legal advice or assistance. The first respondent has not established its claim of privilege.

36    Document 8 is a draft plan. It is endorsed: “PRIVATE AND CONFIDENTIAL”. It is also endorsed: “This document was created for the purpose of gaining legal advice”. Despite these endorsements, I am not satisfied that the document was created for the dominant purpose of obtaining legal advice or assistance. There is nothing on the face of the document to indicate that this was the purpose for its creation. One line in the document (on page 7) appears to query whether input might be required from Ashurst. In my view, that notation falls far short of establishing that the document was created for the dominant purpose of obtaining legal advice or assistance. The first respondent has not established its claim of privilege.

37    Document 9 is an email and attachment. The email is addressed to Mr Woodbury and Ms Fairhall amongst other addressees. It refers to a “confidential draft for legal advice”. The attachment is said to have been provided “for review”. The attachment is endorsed: “PRIVATE AND CONFIDENTIAL”. It is also endorsed: “This document was created for the purpose of gaining legal advice”. Although there is nothing on the face of the attachment to show that the original document was created for the dominant purpose of obtaining legal advice or assistance, the document, in the form of an attachment to the email, appears to have been created for that purpose. I am satisfied that the first respondent has established its claim of privilege in respect of document 9 (email and attachment).

38    Document 10 appears to be a version of document 8. I cannot tell whether it is an earlier or later version. In any event, I make the same ruling for document 10 as I did for document 8, for the same reasons.

The second notice to produce

39    The documents answering the call of the second notice to produce in respect of which claims of privilege have been made are listed in a schedule which has been marked as Exhibit B. The documents are reproduced in a folder marked MFI-2.

40    I am satisfied, on the balance of probabilities, that the first respondent has established its claims of privilege in relation to documents 6-9. In coming to my conclusion in relation to document 9, I have had regard to the contents of MFI-3.

41    I am satisfied (by reference to MFI-4) that documents 1 and 2 are partial reproductions of legal advice given to the first respondent. Although no evidence has been given as to why documents 1 and 2 were created, I am satisfied that they find their provenance in the first respondent. I am satisfied that the first respondent has established its claim of privilege in relation to these two documents.

42    Document 3 appears to be a copy of the attachment comprising part of document 6 identified in Exhibit A. I make the same ruling in relation to document 3 as I did in relation to the attachment comprising part of document 6 identified in Exhibit A, for the same reasons: see [34] above.

43    Document 4 is an email and attachment. The attachment is endorsed: “CONFIDENTIAL AND PRIVILEGED – for the purpose of obtaining legal advice”. Once again, the attachment appears to be a copy of the attachment comprising part of document 6 identified in Exhibit A. In relation to the attachment comprising part of document 4, I make the same ruling as I did in relation to the attachment comprising part of document 6 identified in Exhibit A, for the same reasons: see [34] above. However, I am not satisfied that the email comprising part of document 4 was created or communicated for the dominant purpose of obtaining legal advice or assistance. Thus, the first respondent has only established its claim of privilege in relation to document 4 in the particular parts of the attachment to which I have referred.

44    Document 5 appears to be a copy of the second attachment comprising part of document 5 identified in Exhibit A. I make the same ruling in relation to document 5 as I did for the second attachment comprising part of document 5 identified in Exhibit A, for the same reasons: see [33] above.

Disposition

45    In relation to Exhibit A, the first respondent has established its claims of privilege in relation to the following documents as numbered in the exhibit: 3; in relation to the second attachment comprising part of 5, the four panels in the first and second complete rows on the fourth page of the attachment, paragraph (d)(ii) (excluding paragraph (d)(ii)(a)) in the first incomplete row on page 6 of the attachment, and the two panels in the last row on the last page of the attachment; in relation to the attachment comprising part of 6, the portions of the document in red type; 9; 11 (other than the attachments comprising part of 11); 15; 17; 29-33; and 38. The documents identified in Exhibit A should be produced to the applicants for inspection other than those documents or parts of documents in respect of which the first respondent’s claims of privilege have been established.

46    In relation to Exhibit B, the first respondent has established its claims of privilege in relation to the following documents as numbered in the exhibit: 1; 2; 3 (in relation to those parts of the document that correspond to the red type in the attachment comprising part of document 6 referred to in Exhibit A); 4 (in relation to those parts of the document that correspond to the red type in the attachment comprising part of document 6 referred to in Exhibit A); 5 (in relation to the four panels in the first and second complete rows on the fourth page of the attachment, paragraph (d)(ii) (excluding paragraph (d)(ii)(a)) in the first incomplete row on page 6 of the attachment, and the two panels in the last row on the last page of the attachment); and 6-9. The documents identified in Exhibit B should be produced to the applicants for inspection other than those documents or parts of documents in respect of which the first respondent’s claims of privilege have been established.

Associate:

Dated:    27 March 2015