FEDERAL COURT OF AUSTRALIA

Hutchins v Cap Coast Telecoms Pty Ltd (in liq), in the matter of Cap Coast Telecoms Pty Ltd (in liq) ACN 128 716 030 [2015] FCA 945

IN THE MATTER OF CAP COAST TELECOMS PTY LTD (IN LIQ) ACN 128 716 030

THE COURT ORDERS THAT:

1.    Order 2 of the orders made by Registrar Hannigan on 3 August 2015 be set aside.

2.    The plaintiffs be granted access to the documents produced to the Court by Richard Sebastian Ludwig on 22 July 2015 except for the documents numbered 6, 8, 9, 12, 14, 15, 18, 28, 38, 40, 42, 43, 44, 45, 46, 49, 50 and 54.

3.    Mr Ludwig produce for inspection by the plaintiffs redacted forms of documents 8, 9, 12, 15, 18, 28, 38 and 40, redacted as follows in accordance with my reasons:

(a)    For document 8, redacting the email from Ms Rozea to Mr Ludwig dated 7 July 11:51am;

(b)    For document 9, redacting the email from Ms Rozea to Mr Ludwig dated 7 July 11:51am;

(c)    Document 12 redacted except for the email from Mr Marks to Mr Ludwig, copied to Ms Rozea and Mr Herskope dated 6 July 2015 1:07pm;

(d)    Document 15 redacted except for the email from Mr Marks to Mr Ludwig, copied to Ms Rozea and Mr Herskope dated 29 June 2015 2:30pm;

(e)    For document 18, redacting the email from Mr Marks to Ms Rozea and Mev Batepola, copied to Alan Herskope and others dated 24 June 2015 7:19am;

(f)    For document 28, redacting the email from Mr Marks to Mr Kenny dated 20 April 2015 4:36pm;

(g)    Document 38 redacted except for the first email being the email dated 7 July 2015 12:35pm;

(h)    Document 40 redacted except for the first two emails being the emails dated 6 July 2015 1:29pm and 1:07pm.

4.    The plaintiffs file and serve submissions on costs on or before 3 September 2015.

5.    Mr Ludwig file and serve any further submissions on costs on or before 15 September 2015.

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

IN THE MATTER OF CAP COAST TELECOMS PTY LTD (IN LIQ) ACN 128 716 030

REASONS FOR JUDGMENT

1    On 3 August and 13 August 2015, I heard and made rulings on an application by Richard Sebastian Ludwig (“Richard Ludwig” or “Mr Ludwig”) for an order pursuant to s 35A(6) of the Federal Court of Australia Act 1976 (Cth), setting aside order 2 made by Registrar Hannigan on 3 August 2015.

2    These are my reasons for those rulings and consequential orders

Order under review

3    Order 2 is to the effect that a bundle of documents produced by Mr Ludwig in answer to a notice for production, with one exception, may be inspected by the plaintiffs. The order followed the Registrar’s determination that the documents were not protected by legal professional privilege.

Power to review Registrar’s decision

4    Section 35A(6) provides that the Court may, on application under s 35A(5) or of its own motion, review an exercise of power by a Registrar pursuant to s 35A and may make such order or orders as it thinks fit with respect to the matter with respect to which the power was exercised. Section 35A(5) provides that a party to proceedings in which a Registrar has exercised any of the powers of the Court under s 35A(1) may, within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power. By s 35A(1)(c), the power to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to proceedings in the Court or of any other person is a power that may be exercised by a Registrar under s 35A(1).

5    It is not clear that Mr Ludwig is a party to proceedings in the relevant sense. In any event, the Court may review an exercise of power on its own motion and having regard to status of legal professional privilege as a rule of substantive law, I decided to exercise to review the Registrar’s exercise of power myself for the avoidance of doubt.

Background to application for review

6    Mr Ludwig was at all relevant times the sole director of the defendant (“Cap Coast”).

7    On 20 January 2015, the plaintiffs were appointed as liquidators of Cap Coast pursuant to a creditors’ voluntary winding up.

8    Leave has been granted to the liquidators to issue and serve an examination summons on Mr Ludwig.

9    The liquidators served a notice to produce dated 8 May 2015 on Mr Ludwig.

10    Mr Ludwig claims that 47 documents produced in answer to the notice to produce are protected by legal professional privilege under the common law. There are also some claims of common interest privilege.

Relevant principles

Legal professional privilege

11    Concerning the claims of legal professional privilege, the issue is whether the communication in each document was a confidential communication made for the dominant purpose of giving or obtaining legal advice or the provision of legal services or aiding in the conduct of litigation or prospective litigation (“requisite dominant purpose”): Archer Capital 4A Pty Ltd as trustee for the Archer Capital Trust 4A v Sage Group plc (No 2) [2013] FCA 1098; (2013) 306 ALR 384 at [10]; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543 at [9].

12    In Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796, at [28] and following, Beach J set out general principles concerning the legal advice limb of legal professional privilege. I respectfully adopt his Honour’s statement of those principles. Importantly, his Honour noted at [29] that “focused and specific evidence is required in respect of each communication, rather than mere generalised assertion let alone opaque and repetitious verbal formulae”. Some of the evidence adduced on behalf of Mr Ludwig falls into the latter category.

13    At [36], Beach J noted that the Court has the power to examine the disputed documents and should not be reticent in exercising that power.

14    At [38] to [44], Beach J set out the following propositions concerning third-party adviser internal documents or communications between a third-party adviser and a client, relied upon by Mr Herskope, counsel for Mr Ludwig:

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” (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 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 ([Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501]). 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.

15    Mr Herskope did not identify any other relevant legal principles.

Common interest privilege

16    Mr Herskope did not dispute the accuracy of the following general statement in the submissions made by Ms Latham on behalf of the liquidators:

Where, in circumstances of a mutual interest in a particular transaction or transactions, the recipient of legal advice relating to such transactions passes documents or information containing that advice to someone who shares that interest. The essential question in each case is whether the nature of their mutual interest in the context of their relationship is such that the party to whom the documents are passed receives them subject to a duty of confidence which the law will protect in the interests of justice: Cross on Evidence [25265].

17    This passage in Cross is preceded by the following statement:

The protection by common interest privilege of documents in the hands of someone other than the client must pre-suppose that that third party has a relationship with the client and the transaction in question which, in relation to the advice or other communications, brings that third party within that ambit of confidence which would prevail between the legal adviser and his immediate client.

Evidence in support of Mr Ludwig’s claim

18    Mr Ludwig relied on two affidavits made by Jennifer Rozea, dated 29 July 2015 and 6 August 2015.

19    In addition, Mr Ludwig relied on an affidavit of Steve Marks made 7 August 2015, Richard Ludwig sworn 7 August 2015 and Michael Jonathan Kenny sworn 10 August 2015.

Legal advisers

20    Ms Rozea identifies herself and Jonathan Kenny as solicitors acting for Richard Ludwig, and Mr Herskope as Mr Ludwig’s counsel. Ms Rozea and Mr Kenny are solicitors with the law firm Kalus Kenny Intelex.

21    She also identifies Patrick Meehan and Brendan Lawry as former solicitors for Mr Ludwig.

Role of Mr Marks

22    Mr Marks was a party to all of the emails or at least the final email in each email chain.

23    Ms Rozea gave the following evidence:

7.    I have been informed by Mr Marks and Mr Ludwig, that following the appointment of liquidators to the Defendant, Mr Marks’s entity, SME’s R Us Pty Ltd (SME) was retained by Mr Ludwig to provide him with advice and to act on his behalf in relation to the liquidation of the Defendant (the Matter). The Matter also includes current litigation (namely these proceedings) and anticipated litigation, in relation to the affairs of the defendant.

8.    Mr Marks has informed me that he is the principal of SME and that SME provides advice relating to insolvency of small corporate vehicles.

9.    Mr Marks and Mr Ludwig have also informed me that Mr Marks (on behalf of SME) has acted as Mr Ludwig’s agent in connection with the Matter. Mr Marks and Mr Ludwig have informed me that they have reviewed all of the Documents and believe that on all occasions when Mr Marks received or sent the emails contained in the Documents, Mr Marks did so as Mr Ludwig’s confidential agent, other than where otherwise stated, for the purpose of Mr Ludwig seeking and obtaining advice, or providing instructions for that purpose.

10.    Mr Marks has also informed me that he has also acted as agent for Robert Ludwig and Mary Ludwig in providing instructions on their behalf to their lawyer, Patrick Meehan.

11.    I have been informed by Mr Kenny that Mr Ludwig expressly authorised KKI [Kalus Kenny Intelex], at the beginning of his retainer of KKI, to deal with Mr Marks on his behalf in relation to the Matter and that Mr Ludwig authorised KKI to:

a.    accept and take instructions provided by Mr Marks on behalf of Mr Ludwig;

b.    provide copies of legal advice given to Mr Ludwig to Mr Marks and/or SME employees;

c.    generally communicate with Mr Marks in relation to the Matter.

12.    Mr Kenny has informed me that although there was no specific discussion with either Mr Ludwig or Mr Marks regarding the confidentiality of KKI’s or Mr Ludwig’s communications with Mr Marks regarding the liquidation of the Defendant, as far as he is aware, all parties have treated communications as confidential between them.

13.    I note that the emails in the Documents contain footers that state that the emails may be or are confidential and/or privileged and should be treated accordingly.

14.    On occasions, KKI has also directly taken instructions direct from Mr Ludwig.

15.    I have been informed by Mr Marks that John Narramore, Mev Batepola, Dylan Yue and Sam Toffoletti are employees of SME and assist Mr Marks in relation to SME clients.

16.    I have also been informed by Mr Kenny that KKI holds a general retainer for companies controlled by Mr Marks, including SME and Stemano Holdings Pty Ltd in relation to the Matter.

17.    As to other recipients and senders of emails in the Documents:

a.    I am aware that Mr Patrick Meehan, through his firm, Cockburn Legal, has acted for Mr Ludwig in relation to another proceeding (which is the subject of Document 27); and

b.    Brendan Lawry, (referred to as “Bren L” in emails) is also a lawyer, who, through his firm Impex Lawyers has acted for Mr Ludwig.

24    Mr Marks’ precise expertise is not clear. In his affidavit he gives his occupation as company director.

25    The liquidators referred to an email from Mr Marks dated 27 March 2015 in which he said, relevantly:

SME’s R Us P/L (SMES) was engaged by Cap Coast Telecoms P/L (CC) to provide general advice on range of matters including but not limited to providing a solution to the management, employment of and outsourcing of their payroll for all of their staff.

SMES provided these services and received part payments for CC, some of these payments direct to SMES and some were directed to associated companies CLA and Stemano. These services were provided on good faith and payments received in good faith. As you are aware, at a later date, CC went into liquidation.

All of the companies above totally deny receiving any preference payments, and indeed as you know, when CC was being put in to liquidation, SMES actually rebated some of their fees in part payment of your fees by agreement with CC.

26    This email makes it clear that paragraph 7 of Ms Rozea’s affidavit should not be interpreted to mean that there was no relationship between Mr Marks and Mr Ludwig prior to the liquidation of the defendant (“Cap Coast”). It was not suggested that Ms Rozea was aware of any previous relationship.

27    I conclude that Mr Marks had multiple roles of relevance to deciding the purpose of communications to or from him that are the subject of the privilege claims. He was a non-legal adviser to Mr Ludwig, and also to Robert Ludwig. From time to time, he was Mr Ludwig’s agent for the purpose of obtaining legal advice from Ms Rozea and Mr Kenny. He also acted as the agent of Robert Ludwig and Mary Ludwig, Richard Ludwig’s mother, to procure legal representation for them. Mr Marks also may have an interest in the liquidation, arising out of SMES’s receipt of payments from Cap Coast which may be alleged to be preference payments.

28    The scope of Mr Marks’ role in providing Mr Ludwig with non-legal advice is not clear. It is plain from the documents that I have examined that from time to time Mr Ludwig has asked Mr Marks for advice and Mr Marks has provided Mr Ludwig with advice. Communications of that kind are not protected by legal professional privilege unless it is demonstrated that those communications were for the requisite dominant purpose of obtaining legal advice or aiding in the conduct of litigation or prospective litigation. To the extent that Mr Marks has communicated with Mr Ludwig’s lawyers on Mr Ludwig’s behalf for the dominant purpose of obtaining legal advice, documents recording those communications are at least prima facie privileged.

29    To the extent that Mr Marks has engaged in other communications, the position is much less clear. There is evidence given in a formulaic style that various communications to or from Mr Marks were made for the dominant purpose of obtaining legal advice. It is necessary to consider that evidence together with the documents themselves to form a view about whether I should be satisfied that a communication was made for the requisite dominant purpose in each case. There is some evidence that Robert Ludwig is Mr Ludwig’s brother. It was submitted that there is evidence that Robert and Richard Ludwig share an interest in some other entities, but not Cap Coast Telecoms Pty Limited.

30    There is evidence that Mr Marks has acted as agent for Robert Ludwig in providing instructions to his lawyer, Patrick Meehan. In the light of the paucity of the evidence about the role of Mr Robert Ludwig, it is necessary to review each document carefully to form a view about the precise roles of the parties to the communication to determine a question of privilege. Patrick Meehan and Brendan Lawry are lawyers who formerly acted for Mr Ludwig and, as I have mentioned, Mr Meehan is now acting or appears to now be acting for Mr Robert Ludwig. There is also evidence that he may be acting for Mrs Mary Ludwig. Mr Narramore, Ms Toffoletti, Mev Batepola and Dylan Yue are employees of Mr Marks’ firm.

Evidence concerning particular claims

31    In her 6 August 2015 affidavit, Ms Rozea sets out information, mainly supplied to her by Mr Ludwig, as to facts relevant to the privilege claim for each document. She does not purport to express her own views as to the purpose for which communications claimed to be privileged were made. However, she does state her belief as to the truth of the matters deposed to upon information provided by others.

32    Mr Ludwig’s affidavit verifies the statements made by Ms Rozea including, relevantly, as to his dominant purpose in making various communications. The evidence as to his dominant purpose is in the nature of generalised assertion, which does not attempt to address the fact that, on his own case, Mr Marks has numerous roles in connection with Cap Coast’s insolvency, including a role of giving Mr Ludwig non-legal advice and roles assisting other parties.

33    Ms Rozea’s evidence concerning document 7 is as follows:

Document 7 contains emails between KKI, Ms Ludwig and Mr Marks which refer to legal strategy in relation to the matter and in respect of which Mr Ludwig claims privilege. The balance of the emails relate to payment of legal fees in respect of which Mr Ludwig also claims privilege.

34    On its face, document 7 makes no reference to legal strategy. I reject Ms Rozea’s concerning document 7. The document contains no communication that could properly be the subject of a claim for legal professional privilege.

35    Ms Rozea’s evidence concerning document 19 is:

Document 19 includes emails between KKI, Mr Ludwig and Mr Marks sent for the dominant purpose of seeking instructions and/or providing legal advice in relation to the Matter.

Mr Marks has informed me that he forwarded the emails to Mr Meehan and “Bren L” for the dominant purpose of providing them with instructions on behalf of Robert Ludwig in relation to the Matter.

Mr Ludwig claims privilege in the emails on his behalf and on behalf of Robert Ludwig. They each assert a claim for common interest privilege in the emails.

36    Document 19 is an email chain consisting of 6 emails. The first email in time is an email dated 17 June 2015 from Gillis Delaney, the liquidators’ lawyers, to Ms Rozea. The second email in time is an email from Ms Rozea to Mr Ludwig which seeks instructions to accept service. In the third email in time, Mr Ludwig responds by saying, relevantly:

I am no longer using your services at this stage so I am not accepting of these documents.

37    The description of document 19 in Ms Rozea’s affidavit is insufficient, in that it does not identify the apparent and relevant fact that that Mr Ludwig had withdrawn his instructions to Kalus Kenny Intelex.

38    In the light of this evidence, and taking into account that Ms Rozea does not herself express a view as to whether the various privilege claims are justified, I am not prepared to accept her evidence (on information and belief) as to the dominant purpose of various communications at face value. In the absence of more detail, I do not accept Mr Ludwig’s evidence to the extent that it is not supported by the documents.

Common interests with Mary Ludwig and Robert Ludwig

39    Mr Ludwig claims a common interest with each of his mother, Mary Ludwig and his brother, Robert Ludwig. However, there was no evidence of any interest that either Mary or Robert Ludwig has in the insolvency of Cap Coast. Mr Herskope pointed to evidence that Mr Ludwig and Mrs Ludwig are members of a superannuation fund called the R&R Super Fund. However, he did not attempt to identify any particular issue about which Richard Ludwig and either Mary or Robert Ludwig had a joint interest in obtaining legal advice. In those circumstances, I am not satisfied that there is any common interest which operates to render communications between Richard Ludwig, Mary Ludwig and Robert Ludwig subject to common interest privilege.

Consideration

40    I accept that each document records a confidential communication. The confidentiality of the communications was not disputed.

Document 2

41    Document 2 is the first page of an email chain, starting with an email from Mr Marks to Mr Ludwig and Patrick Meehan dated 8 July 2015 at 1:31 pm. By his email, Mr Marks gives Mr Meehan some instructions, apparently on behalf of Mr Ludwig’s mother. Attached to the email is another email from Richard Ludwig to Patrick Meehan, copied to Mr Marks. In neither case does the email seek any legal advice.

42    Paragraph 22 of Ms Rozea’s 6 August 2015 affidavit states:

I have been informed by Mr Ludwig that Document 2 contains an email sent by him to a solicitor whom he proposed to retain on behalf of his mother, for the dominant purpose of providing instructions, on behalf of his mother, concerning the Matter and that he confidentially copied the email to Mr Marks as his agent so that he was aware of the contents of the communication and Mr Ludwig could obtain legal advice from KKI if need be.

43    Having regard to Mr Marks’ role as a third party non-legal adviser, I am not satisfied that the communication was for the requisite dominant purpose, particularly where the communication was acted upon by Mr Marks to provide non-legal advice. The dominant purpose of the communications appears to be to secure separate legal representation for Mrs Ludwig at a forthcoming liquidators’ examination.

44    No particular transaction was identified as the subject of a common interest between Mr and Mrs Ludwig. The purpose of the communications being to secure separate legal representation for Mrs Ludwig, I am not satisfied that there is any evidentiary basis for the claim of common interest privilege.

Document 2A

45    Document 2A is an email chain starting with an email from Mr Marks to Patrick Meehan and Brendan Lawry, copied to Richard Ludwig, dated 8 July 2015 at 12:59 pm. Mr Marks’ email appears to be arranging separate legal representation for two other third parties at forthcoming liquidators’ examinations. That is not a communication for the requisite dominant purpose.

46    The chain includes other emails concerning the liquidators’ examinations including advice from Ms Rozea. The emails were sent to Mr Marks by Mr Ludwig without any message. Having regard to Mr Marks’ role as a third party non-legal adviser, I am not satisfied that the communication of that advice to Mr Marks was for the requisite dominant purpose, particularly where the communications were acted upon in part by Mr Marks to provide non-legal advice.

47    There is no obvious common interest between Mr Ludwig and the third parties apart from the practical one of securing legal advice for them.

48    Paragraph 30 of Mr Rozea’s 6 August 2015 affidavit states that Mr Ludwig, Mrs Ludwig and Robert Ludwig claim common interest privilege over the emails. The common interest is not identified and I am not satisfied that there is any relevant common interest.

Document 3

49    Document number 3 is an email chain starting with an email from Mr Marks to Robert Ludwig and Richard Ludwig dated 8 July 2015 at 10:39 am. The first email appears to contain some (non-legal) advice and the dominant purpose of the communication appears to be to convey that advice. The balance of the email chain comprises emails between the same three parties, except for the first email which is from Gillis Delaney Lawyers to Robert Ludwig. There is nothing on the face of the emails which suggests that these communications were for the purpose of obtaining legal advice and I am not satisfied that any of them was for that purpose.

50    Paragraph 32 of Mr Rozea’s 6 August 2015 affidavit states that Richard Ludwig and Robert Ludwig claim common interest privilege over the emails. The common interest is not identified and I am not satisfied that there is any relevant common interest.

Document 4

51    Document 4 is an email chain starting with an email from Mr Marks to Robert and Richard Ludwig dated 8 July 2015 at 10:26 am. With one qualification, the same reasoning applies to this email chain as for document 3. The qualification is that there are two emails in the chain which include Mr Herskope as a recipient. To the extent that those emails are privileged, I am not satisfied that there is any relevant common interest between Richard and Robert Ludwig and consequently any privilege was waived by their communication to Robert Ludwig.

Document 5

52    Document 5 is a subset of the email chain that is document 4 and the conclusions concerning document 4 apply to document 5.

Document 6

53    Document 6 is an email chain starting with an email from Mr Marks to Ms Rozea and Sam Toffoletti, copied to Richard Ludwig and Jonathan Kenny dated 8 July 2015 at 10:01 am. It contains a request for advice from Mr Marks to Jennifer Rozea. On the basis of the evidence that Mr Marks is the agent of Mr Ludwig for the purposes of obtaining legal advice from Ms Rozea, I am satisfied that this document is prima facie protected by legal professional privilege.

Document 7

54    Document 7 is a chain of emails commencing with an email from Mr Marks to Jennifer Rozea copied to Richard Ludwig and Jonathan Kenny, dated 8 July 2015 at 9:41 am. I am not satisfied that the communication was made for the requisite dominant purpose. The dominant purpose of the communications is to make or confirm arrangements about legal fees.

Document 8

55    Document 8 is an email chain starting with an email from Mr Marks to Richard Ludwig dated 7 July 2015 at 1:42 pm in which he provides (non-legal) advice to Mr Ludwig. The second email contains a request from Richard Ludwig to Mr Marks. Having regard to Mr Marks’ role as a non-legal adviser, and taking account of the lack of reference to any request for legal advice, I am not satisfied that the communication has the requisite dominant purpose.

56    The third document in the email chain, that is the earliest document in the email chain, is an email from Ms Rozea to Mr Ludwig seeking instructions, and I accept that that is a privileged communication. Given Mr Marks’ role as agent, I accept that the email was probably forwarded by Richard Ludwig to Steve Marks for the dominant purpose of obtaining legal advice from Ms Rozea concerning a draft letter to Gillis Delaney. In the circumstances, I would rule that the third email is privileged, but the other two emails are not privileged.

Document 9

57    Document 9 is relevantly similar to document 8. It is an email chain starting with an email from Steve Marks to Richard Ludwig dated 7 July 2015 at 1:41 pm.

Document 10

58    Document 10 is an email chain starting with an email from Mr Marks to Robert Ludwig copied to Richard Ludwig dated 6 July 2015 at 2:35 pm.

59    I am not satisfied that the communications were made for the requisite dominant purpose where the emails do not refer to such a purpose. The dominant purpose of the first and third emails in the chain appears to be to give (non-legal) advice to Richard and Robert Ludwig. To the extent that the communications include Richard Ludwig sharing legal advice with Robert Ludwig, I am not satisfied that they had any relevant common interest in the advice.

Document 11

60    Document 11 is an email chain commencing with an email from Steve Marks to Richard Ludwig copied to Robert Ludwig dated 6 July 2015 at 2:35 pm. Document 11 is a subset of the email chain that is document 4 and the conclusions concerning document 4 apply to document 11.

Document 12

61    Document 12 is an email chain starting with an email from Mr Marks to Richard Ludwig, Mr Herskope and Ms Rozea with the subject line “Final response to Cor Cordis before meeting legally privileged” dated 6 July 2015 at 1:07 pm.

62    The dominant purpose of the first email appears to be to give (non-legal) advice to Mr Ludwig. The balance of the emails comprises communications between Mr Ludwig and his lawyers concerning a proposed communication to the liquidators, in respect of which Mr Ludwig sought advice. I accept that these emails are privileged communications. In particular, given Mr Marks’ role as Mr Ludwig’s agent, I accept that he probably forwarded these communications to Mr Marks to enable Mr Marks to discharge this role.

Document 13

63    Document 13 is an email chain starting with an email from Mr Marks to Richard Ludwig, copied to Ms Rozea, dated 30 June 2015 at 12:24 pm. The dominant purpose of the first email appears to be the provision of (non-legal) advice by Mr Marks about provision of information to liquidators. The balance of the emails comprise a request from Mr Ludwig to Mr Marks for non-legal advice, and communications with third parties.

Document 14

64    Document 14 is an email chain starting with an email from Mr Marks to Ms Rozea copied to Mr Ludwig, dated 29 June 2015 at 3:49 pm. It comprises the provision of instructions in response to legal advice, apparently on behalf of Mr Ludwig. I am satisfied that the communications were for the requisite dominant purpose.

Document 15

65    Document 15 is an email chain starting with an email from Mr Marks to Richard Ludwig copied to Ms Rozea and Mr Herskope with the subject line “Final response to Cor Cordis before meeting”, dated 29 June 2015 at 2:30 pm. The first email comprises (non-legal) advice from Mr Marks to Richard Ludwig concerning Richard Ludwig’s request for legal advice. Given Mr Marks’ role as agent, I accept that the balance of the email chain was probably provided to Mr Marks for the dominant purpose of obtaining legal advice.

Document 16

66    Document 16 is an email chain starting with an email from Mr Marks to Richard Ludwig and Ms Rozea with the subject line “Final response to Cor Cordis before meeting”, dated 29 June 2015 at 12:22 pm.

67    Document 16 is a subset of the email chain that is document 4 and the conclusions concerning document 4 apply to document 16.

Document 17

68    Document 17 is an email chain starting with an email from Mr Marks to Richard Ludwig and Ms Rozea with the subject line “Final response to Cor Cordis before meeting”, dated 25 June 2015.

69    The first email is a response to a request by Mr Ludwig for (non-legal) advice from Mr Marks in advance of a request for legal advice. In the light of Mr Marks’ role as a non-legal adviser, I am not satisfied that the communications were made for the requisite dominant purpose.

Document 18

Document 18 is an email chain starting with an email from Mr Marks to Ms Rozea and Richard Ludwig with the subject line “Cor Cordis Legally Privileged” dated 24 June 2015, seeking a meeting with Ms Rozea. I am not satisfied that the first to fourth emails are communications for the requisite dominant purpose: they concern only logistics. As to the fifth email, in this communication, Mr Marks appears to be acting as Mr Ludwig’s agent to give instructions to Ms Rozea. I am satisfied that this email is a communication for the requisite dominant purpose.

Document 19

70    Document 19 is an email chain starting with an email from Mr Marks to Richard Ludwig, copied to Patrick Meehan and Brendan Lawry dated 19 June 2015. The first email shows Mr Marks providing (non-legal) advice. The balance of the emails comprises communications that are not for purpose of obtaining legal advice: the stated premise of the emails is that Ms Rozea is not acting for Mr Ludwig at this time.

Document 27

71    Document 27 is an email chain starting with an email from Mr Marks to Mr Ludwig with the subject line “Draft” dated 25 April 2015, responding to an email from Mr Ludwig forwarding an email which includes legal advice from Patrick Meehan. The purpose of the communications is not clear on the face of the emails. I am not satisfied that the dominant purpose was the requisite dominant purpose, having regard to Mr Marks’ role as Mr Ludwig’s non-legal adviser.

Document 28

Document 28 is an email chain starting with an email from Mr Marks to Jonathan Kenny, copied to Richard Ludwig, dated 21 April 2015. The third email in the chain is from Mr Marks to Jonathan Kenny dated 20 April 2015 at 4:36 pm. I am not satisfied that the dominant purpose of the first and second emails was the requisite dominant purpose: those emails only concern logistics. As to the third email, it appears to show Mr Marks acting as Richard Ludwig’s agent to seek legal advice.

Document 29

72    Document 29 is an email chain starting with an email from Richard Ludwig to Mr Marks dated 13 July 2015, forwarding instructions he has given to legal advisers. The purpose of forwarding this information to Mr Marks is not clear on the face of the emails. I am not satisfied that the dominant purpose was the requisite dominant purpose, having regard to Mr Marks’ role as Mr Ludwig’s non-legal adviser.

Document 30

73    Document 30 is an email from Richard Ludwig to Patrick Meehan and Mr Marks with the subject line “New Client”, dated 10 July 2015. The dominant purpose of the communication appears to be to secure separate legal representation for a third party. In the absence of anything on the face of the email to indicate that the communication had the requisite dominant purpose, I am not satisfied that it had that purpose. I am not satisfied that there is any evidentiary basis for the claim of common interest privilege.

Document 31

74    Document 31 is an email from Richard Ludwig to Patrick Meehan, copied to Mr Marks, dated 8 July 2015 at 1:18 pm. It is part of the email chain that is document 2 and the ruling for document 2 applies.

Document 32

75    Document 32 is an email chain starting with an email from Richard Ludwig to Mr Marks with the subject line “Contract of sale 21 Broadhurst Drive Gracemere” dated 8 July 2015 12:02 pm. In the absence of anything on the face of the email to indicate that the communication had the requisite dominant purpose, I am not satisfied that it had that purpose having regard to Mr Marks’ role as Mr Ludwig’s non-legal adviser.

Document 33

76    Document 33 is an email chain starting with an email from Richard Ludwig to Mr Marks re “Heritage” dated 8 July 2015 12:02 pm. In the absence of anything on the face of the email to indicate that the communication had the requisite dominant purpose, I am not satisfied that it had that purpose, having regard to Mr Marks’ role as a non-legal adviser.

Documents 34 and 35

77    These documents are each part of the email chain that is document 2A. The conclusions concerning document 2A apply in each case.

Document 36

78    This document is part of the email chain that is document 32. The conclusions concerning document 32 apply.

Document 37

79    Document 37 is an email chain starting with an email from Richard Ludwig to Mr Marks forwarding correspondence from Gillis Delaney and an email from Ms Rozea dated 8 July 2015 at 7:24 am. In the absence of anything on the face of the email to indicate that the communication had the requisite dominant purpose, I am not satisfied that it had that purpose having regard to Mr Marks’ role as Mr Ludwig’s non-legal adviser. The dominant purpose of the communication appears to be to inform Mr Marks of the progress of the liquidation.

Document 38

80    Document 38 is part of the email chain that is document 8. The conclusions concerning document 8 apply.

Document 39

81    This document is part of the email chain that is document 4. The conclusions concerning document 4 apply.

Document 40

82    This document comprises the email chain that is document 12 and an additional email from Richard Ludwig to Mr Marks, copied to Mr Herskope and Ms Rozea dated 6 July 2015 at 1:29 pm. The conclusions concerning document 12 apply. The additional email is Mr Ludwig’s response to Mr Marks’ (non-legal) advice.

Document 41

83    Document 41 is an email chain starting with an email from Mr Marks to Richard Ludwig, Mr Herskope and Robert Ludwig with the subject line “Info to Cor Cordis” dated 6 July 2015 at 1:18 pm. In the absence of anything on the face of the email to indicate that the communication had the requisite dominant purpose, I am not satisfied that it had that purpose having regard to Mr Marks’ role as Mr Ludwig’s non-legal adviser. The dominant purpose of the communication appears to be to take (non-legal) advice given by Mr Marks.

Document 42

84    This document is part of the email chain that is document 12. The conclusions concerning document 12 apply.

Document 43

85    Document 43 is an email chain starting with an email from Richard Ludwig to Mr Herskope, Ms Rozea and Mr Marks dated 30 June 2015 at 2:27 pm. Given Mr Marks’ role as Mr Ludwig’s agent, I accept that the communications were for the dominant purpose of enabling Mr Marks to perform that role.

Document 44

86    This document is part of the email chain that is document 43. The conclusions concerning document 43 apply.

Document 45

87    Document 45 is an email chain starting with email from Richard Ludwig to Ms Rozea copied to Mr Marks dated 29 June 2015. I accept that the communications were for the dominant purpose of obtaining legal advice and enabling Mr Marks to perform his role as agent.

Document 46

88    Document 46 is an email chain starting with an email from Richard Ludwig to Ms Rozea copied to Mr Marks dated 29 June 2015. I accept that the communications were for the dominant purpose of obtaining legal advice and enabling Mr Marks to perform his role as agent.

Document 47

89    Document 47 is an email chain starting with an email from Richard Ludwig to Ms Rozea copied to Mr Marks dated 29 June 2015 with the subject line “102 Denham St Rockhampton”. Although I accept that the communication to Ms Rozea is privileged, having regard to the content of the communication and Mr Marks’ multiple roles, I am not satisfied that the communication to him was for the requisite dominant purpose.

Document 48

90    Document 48 is an email chain starting with an email from Richard Ludwig to Ms Rozea copied to Mr Marks. Although I accept that the communication to Ms Rozea is privileged, having regard to the content of the communication and Mr Marks’ multiple roles, I am not satisfied that the communication to him was for the requisite dominant purpose.

Document 49

91    This document is part of the email chain that is document 15. The conclusions concerning document 15 apply.

Document 50

Document 50 is an email from Richard Ludwig to Mr Marks and Ms Rozea with the subject line “WRB Management Liability 1 – 2012” dated 26 June 2015. Given Mr Marks’ role as agent, I accept that this communication was for the dominant purpose of obtaining legal advice including by enabling Mr Marks to perform his role as agent.

Document 51

92    This document is part of the email chain that is document 17. The conclusions concerning document 17 apply.

Document 52

93    Document 52 is an email chain starting with an email from Richard Ludwig to Mr Marks attaching correspondence from Gillis Delaney, dated 18 June 2015. In the absence of anything on the face of the email to indicate that the communication had the requisite dominant purpose, I am not satisfied that it had that purpose having regard to Mr Marks’ role as Mr Ludwig’s non-legal adviser. The dominant purpose of the communication appears to be to inform Mr Marks of the progress of the liquidation.

Document 53

94    This document is part of the email chain that is document 19. The conclusions concerning document 19 apply.

Document 54

95    Document 54 is an email chain starting with an email from Richard Ludwig to Mr Marks, copied to John Narramore, forwarding legal advice from Ms Rozea, dated 28 May 2015. Given Mr Marks’ role as Mr Ludwig’s agent, I accept the communication of the legal advice to Mr Marks was for the dominant purpose of enabling Mr Marks to perform that role.

Conclusion

96    I uphold Mr Ludwig’s claims of privilege over documents 6, 14, 42, 43, 44, 45, 46, 49, 50 and 54.

97    I uphold the following claims in part:

(1)    For document 8, the email from Ms Rozea to Mr Ludwig dated 7 July at 11:51 am;

(2)    For document 9, the email from Ms Rozea to Mr Ludwig dated 7 July at 11:51 am;

(3)    Document 12 except the email from Mr Marks to Mr Ludwig, copied to Ms Rozea and Mr Herskope dated 6 July 2015 at 1:07 pm;

(4)    Document 15 except the email from Mr Marks to Mr Ludwig, copied to Ms Rozea and Mr Herskope dated 29 June 2015 at 2:30 pm;

(5)    For document 18, the email from Mr Marks to Ms Rozea and Mev Batepola, copied to Alan Herskope and others dated 24 June 2015 at 7:19 am;

(6)    For document 28, the email from Mr Marks to Mr Kenny dated 20 April 2015 at 4:36 pm;

(7)    Document 38 except for the first email being the email dated 7 July 2015 at 12:35 pm;

(8)    Document 40 except for the first two emails being the emails dated 6 July 2015 at 1:29 pm and 1:07 pm.

Associate:

Dated:    27 August 2015