FEDERAL COURT OF AUSTRALIA

Zantran Pty Limited v Crown Resorts Limited (No 2) [2020] FCA 1024

ORDERS

THE COURT ORDERS THAT:

1.    Those parts of the discovered documents numbered CWN.538.073.3290-3295 and CWN.538.073.3302-3307 identified in paragraphs [116] and [117] of these reasons be produced by the respondent for inspection by the applicant’s solicitors.

2.    Otherwise, the applicant’s application for production be dismissed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

introduction

1    The applicant (Zantran) has commenced representative proceedings under Part IVA of the Federal Court of Australia Act 1976 (Cth) against the respondent (Crown) for relief including compensation for loss or damage arising from alleged contraventions of the Corporations Act 2001 (Cth), the Australian Securities and Investments Commission Act 2001 (Cth), and the Australian Consumer Law (set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)). Zantran alleges that Crown contravened those Acts by failing to notify the Australian Securities Exchange of certain matters and by making certain representations.

2    Zantran commenced the proceeding on behalf of persons who acquired an interest in fully paid ordinary shares in Crown between 6 February 2015 and 16 October 2016, which is called the Relevant Period. 16 October 2016 was a Sunday. The last day that the ASX operated during the Relevant Period was Friday 14 October.

3    The matters that it is said should have been notified, and the asserted misleading character of the representations, arise from how Crown conducted its business in, or with citizens of, the People’s Republic of China.

4    The trial of the proceeding is to commence in November this year before the docket judge, Murphy J.

5    On 6 March 2020, Murphy J ordered Crown to produce certain discovered documents for inspection, subject to any claim for privilege. The orders also provided that, if Crown opposed production of any of the documents, it was to file an affidavit and submissions setting out its position and Zantran was to file material in response.

6    Once it became clear that there was a dispute between the parties about Crown’s claims of privilege, Murphy J ordered, on 23 April 2020, that the issue be listed for hearing. Because of the need for the court to inspect the documents in question, the issue was referred to a judge other than the docket judge. (As to the power of the court to examine documents in respect of which a claim of privilege is made, see, eg, Grant v Downs (1976) 135 CLR 674 at 689 (Stephen, Mason and Murphy JJ).)

7    This is an interlocutory dispute, so the common law governs the disposition of the issues, not the Evidence Act 1995 (Cth): see Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 59-63 [17]-[28] (Gleeson CJ, Gaudron and Gummow JJ), 73-74 [64] (McHugh J); Mann v Carnell (1999) 201 CLR 1 at 12 [27] (Gleeson CJ, Gaudron, Gummow and Callinan JJ), 16-17 [41] (McHugh J), 45 [143]-[144] (Kirby J) (Mann v Carnell).

8    In order to explain and resolve the issues to be resolved, which include issues of principle, it is necessary first to turn to Zantran’s pleaded case against Crown.

zantran’s pleaded case against crown

9    The Amended Statement of Claim filed 10 March 2020 (ASOC) relevantly pleads Zantran’s continuous disclosure case as follows:

C    CROWN’S CHINA OPERATIONS

17.    Between 2014 and October 2016, Crown employed employees who performed functions and tasks for the benefit of Crown on mainland China, including:

(a)    performing sales, marketing and administrative tasks; in teams organised by reference to regions of China;

(b)    meeting with Chinese nationals for the purpose of promoting gambling at Crown Melbourne, Crown Perth and Crown Macau casinos;

(c)    providing assistance to Chinese nationals with arranging travel from mainland China to Australia for the purpose of gambling at Crown Melbourne and Crown Perth and providing assistance with visa applications;

(d)    organising for Chinese nationals who travelled from mainland China to Australia for the purpose of gambling at Crown Melbourne and Crown Perth to be provided with accommodation, meals and refreshments while in Australia; and

(e)    organising credit for Chinese nationals to use for gambling at Crown Melbourne, Crown Perth and Crown Macau casinos;

(f)    reporting the results of sales and marketing performed by Crown employees in China; and

(g)    contacting Chinese nationals who had engaged in gambling at Crown Melbourne Casino, Crown Perth and Crown Macau casinos for the purpose of requesting those Chinese nationals to pay debts incurred while gambling     (Crown’s China Operations).

…

D    CHINESE LAW

22.    At all material times, the Criminal Law of the People’s Republic of China provided that:

(a)    Article 303

‘Whoever, for the purpose of profit, gathers a crowd to gamble, or undertakes gambling as a business shall be sentenced to fixed-term imprisonment of three years or less, detention or surveillance and shall be subject to a fine.

Whoever opens a gambling establishment shall be sentenced to a fixed-term imprisonment or [sic] not more than three years, detention or surveillance and shall be subject to a fine; if the circumstances are serious, [the person shall be sentenced to] a fixed-term imprisonment of three years or more and ten years or less and shall be subject to a fine.’

(b)    Article 25

‘A joint crime refers to the situation where two or more persons intentionally commit a crime jointly.

Where two or more persons negligently commit a crime jointly, it will not be punished as a joint crime; those who should bear criminal liability shall be separately punished in accordance with the crime that they have committed.’

23.     On 11 May 2005, the Supreme People’s Court of the People’s Republic of China issued Interpretation No. 3 [2005] of the Supreme People’s Court entitled Interpretation of the Supreme People’s Court and Supreme People's Procuratorate about Some Issues Concerning the Application of Law in Gambling Criminal Cases (Supreme People’s Court Interpretation), which was effective from 13 May 2005 and was in effect at all times during the Relevant Period.

24.    At all material times, Article 1 of the Supreme People’s Court Interpretation provided that:

    ‘Any of the situations set out below, if undertaken for the purpose of profit, will constitute ‘gathering a crowd to gamble’ as provided by Article 303 of the Criminal Law:

(1)    Organising three or more persons to gamble and generating illegitimate profits by taking a cut of the winnings in amounts that equal 5,000 yuan or more in aggregate;

(2)    Organising three or more persons to gamble where the amount gambled is 50,000 yuan or more in aggregate;

(3)    Organising three or more persons to gamble where the number of people participating in the gambling is 20 persons or more in aggregate;

(4)    Organising 10 or more persons who are citizens of the People’s Republic of China to go abroad to gamble, from which kickbacks or referral fees are collected.’

E    THE DETENTION, ARREST AND PROSECUTION OF CROWN STAFF

25.    Between 13 and 24 October 2016, Chinese authorities detained 19 Crown employees.

…

F    17 OCTOBER 2016 ANNOUNCEMENT

28.     On Monday 17 October 2016, in accordance with information which had been widely publicised in the media on the preceding day, Crown announced that 18 of its staff, including Crown’s Executive Vice President VIP International, Jason O’Connor, had been detained by Chinese authorities (17 October Announcement).

Particulars

The 17 October announcement was made in an ASX announcement released by Crown on 17 October 2016 titled ‘Response to Media Reports’.

…

G    CROWN’S KNOWLEDGE PRIOR TO 17 OCTOBER 2016

G.1    Chinese Gambling Crackdown

30.     On or about 6 February 2015, the Chinese Government announced that:

(a)    the fact that Chinese citizens were being organised to gamble abroad was causing great harm; and

(b)    casinos in overseas countries which had set up offices in China to attract and recruit Chinese citizens to gamble abroad were now a ‘focus of the crackdown.’ (Chinese Gambling Crackdown)

Particulars

On 6 February 2015, the Ministry of Public Security held a press conference at the Ministry of Public Security on the topic of public security crackdown and rectification.

The speakers who addressed the press conference included Liu Shaowu, Director of the Public Security Bureau under the Ministry of Public Security and Yan Zhengbin and Hua Jinfeng, Deputy Directors of the Public Security Bureau.

Journalists attended the press conference including journalists representing China Daily, Beijing Times, CCTV, Xinhua News Agency, and People’s Public Security.

31.    On and from 6 February 2015, Crown was aware (within the meaning of ASX Listing Rule 19.12) of the Chinese Gambling Crackdown.

…

G.3    Information and risk known to Crown

34.    On and from 6 February 2015 by reason of the matters pleaded in paragraphs 17 to 24 and 30 to 31 above (or in the alternative, on or from 19 June 2015 by reason of the matters pleaded in paragraphs 17 to 24 and 30 to 33 above):

(a)    Crown’s China Operations were in breach of Chinese law (China Operations Illegal Information); and/or

(b)    Crown’s China Operations possessed characteristics which were a target of the Chinese Gambling Crackdown (China Operations Crackdown Information);

35.    On and from 6 February 2015 by reason of the matters pleaded in paragraphs 17 to 24, 30 to 31, and 34 above (or in the alternative on and from 19 June 2015 by reason of the matters pleaded in paragraphs 17 to 24 and 30 to 34 above), there existed a risk that:

(a)    Crown employees would be charged, arrested, detained, prosecuted or convicted by Chinese authorities for commission of crimes in contravention of Chinese laws in relation to gambling (Employee Detention Risk);

(b)    in circumstances where Crown employees were charged, arrested, detained, prosecuted or convicted by Chinese authorities for commission of crimes in contravention of Chinese laws in relation to gambling, Crown would be forced to terminate its China Operations (China Operations Enforcement Risk);

(c)    Crown would suffer a significant reduction in Crown’s Chinese VIP Revenue (Chinese VIP Revenue Risk); and/or

(d)    in circumstances where Crown suffered a significant reduction in Crown’s Chinese VIP Revenue, it would suffer a significant reduction in Crown’s total revenue (Revenue Risk).

36.    On and from 6 February 2015 (or in the alternative on and from 19 June 2015) Crown was aware (within the meaning of the ASX Listing Rule 19.12) of:

(a)    the China Operations Illegal Information;

(b)    the China Operations Crackdown Information;

(c)    the Employee Detention Risk;

(d)    the China Operations Enforcement Risk;

(e)    the Chinese VIP Revenue Risk; and/or

(f)    the Revenue Risk.

H.    CROWN’S CONTINOUS DISCLOSURE CONTRAVENTION

H.1    China Operations Illegal Information Continuous Disclosure Contravention

…

39.    Crown did not inform the ASX of the China Operations Illegal Information immediately on 6 February 2015 (or in the alternative on 19 June 2015) or at all during the Relevant Period, and the Crown Securities Market did not become aware of that information until 17 October 2016.

40.    By reason of the matters pleaded in paragraphs 37 to 39, Crown     contravened s 674(2) of the Corporations Act (China Operations Illegal Continuous Disclosure Contravention).

10    Zantran also pleads a misleading and deceptive conduct case, commencing at ASOC [62], but it is not necessary to recite it in detail in these reasons. It suffices to note that a “Chinese Market Growth Representation” is pleaded at [73], and that this representation is alleged at [79] to have been misleading or deceptive because the same information as is identified at [36] was not disclosed.

the evidence

11    Crown relies on three affidavits of Mr Glen Ward, a partner of MinterEllison (Crown’s solicitors in this proceeding), as proof of its claims of privilege.

The “waiver” witness statements

12    Zantran relies on parts of three witness statements filed on behalf of Crown in the proceeding to found its claim that Crown has waived privilege over certain of the disputed documents, namely, the witness statements of Mr Jason O’Connor, Mr Michael Chen and Ms Jane Pan.

Mr O’Connor

13    Mr O’Connor was the Group Executive General Manager of Crown’s “VIP International” business unit from 2011 until mid-October 2016. In February 2019 he was appointed to his current role as Crown’s Director – Innovation and Strategy. One part of his witness statement is headed “Legality of China Operations”. Under that heading, among other things, Mr O’Connor refers to and attaches emails containing legal advice from WilmerHale. Zantran relied on these paragraphs:

Legality of China Operations

65.    Shortly after recruiting Michael [Chen] in about February 2012, I had discussions with him about seeking legal advice on behalf of Crown from a law firm in China to assist our understanding of the legal framework in China and to assist in developing and implementing guidelines for our staff in China. I understood that he subsequently retained a law firm in China, WilmerHale, to provide legal advice to Crown.

66.    On 14 June 2012, I received an email from Michael setting out the conclusions from a call he had had with WilmerHale. A copy of that email is CWN.514.059.7986. The email stated the following, which is consistent with my recollection:

‘1.    WilmerHale said that it is not illegal to be selling offshore gaming within China. There are laws that prohibit the marketing of gaming onshore (for more than 10 people).

2.    That said, because gaming is a sensitive topic, their recommendation was still to be cautious and avoid openly marketing.’

67.    From time to time, Michael sought further advice from WilmerHale which he reported to me either in a phone call or an email. My recollection is that the updates were usually to the effect that there had been no change to the law.

68.    For example, on 19 February 2013, Michael sent me an email with the subject line ‘call’, that forwarded an email from Kenneth Zhou – a partner of WilmerHale, providing advice on the law in China concerning the marketing of foreign casino businesses in China. A copy of that email is document CWN.514.071.6286. That email, which is consistent with my recollection of my understanding at that time, stated:

‘ … to constitute an offence of organizing group gambling in connection with organizing overseas gambling, 2 elements must be shown at the same time (a) organize/gather 10 or more PRC citizens for overseas gambling; and (b) the organizer benefits from such activities by receiving a kick back or a referral fee … ’

69.    I don’t recall now if I read the 19 February 2013 email in detail at the time. Given my usual practice was to scan my emails, and to have frequent telephone discussions with Michael, it is likely that I scanned this email and discussed the substance of the email with Michael at some point after he sent it to me. At some point around this time, Michael explained the legal position, as advised by WilmerHale, to me very simply. It explained it to me in words to the effect that: ‘The law says you can’t organise trips for 10 or more people to gamble overseas and get a commission payment for doing that. So, we don’t organise trips for more than 10 people and no one gets a commission or a kickback from the customers. That is what I have told the staff.’

70.    Based on the various emails and conversations I had with Michael from mid-2012 to 13 October 2016, in which he told me about the legal advice he had received, my understanding was that Crown’s sales operations in China were operating in accordance with legal requirements … Briefly stated in layman’s terms, I understood the legal advice provided to Michael and reported by Michael to me to be that:

   (a)    it was illegal to gamble in mainland China; and

(b)    it was illegal to organise for groups of 10 or more people to travel outside of China to gamble, and, in relation to that group, to accept a kickback or commission from those customers.

71.    Crown did not do those things.

14    Mr O’Connor’s witness statement also contains evidence concerning the “crackdown” on foreign casinos under the heading “February 2015 Announcement News”, as follows:

I have no independent recollection of the news of an announcement by the Chinese central government or the Ministry of Public Security of a crackdown on foreign casinos, either on about 6 February 2015 or at all. However, I accept that I must have been aware to some extent of some media reporting of the announcement either at the time it was announced or at least by about 7 February 2015, based on my review of documents for the purpose of preparing this statement.

15    That section of Mr O’Connor’s witness statement ends at paragraph [98], as follows: “At no time, including during the relevant period, did I consider that Crown’s operations in China possessed characteristics that were a target of a government crackdown”.

16    I was also taken by counsel for Zantran to a paragraph of Mr O’Connor’s witness statement concerning the topic of “Crown employees in mainland China”. Paragraph [60] reads: “… if a Chinese VIP customer had an outstanding debt to Crown from visits to one or more of Crown’s wholly-owned properties, it was the role of in-market sales staff to follow up and discuss the repayment of that debt with the customer”.

Mr Chen

17    Mr Chen was the President of International Marketing at Crown between February 2012 and March 2017, when he left Crown’s employ. He was responsible for managing a team of staff in China and South-East Asia. His role involved developing the overall business strategy for the region, overseeing product development and marketing, and managing the performance of his team. He was based in Hong Kong but regularly travelled to mainland China.

18    Under the heading “Activities of Crown staff in China”, the following appears in Mr Chen’s witness statement:

18.    I estimate that Crown had approximately 20 to 25 staff on the ground in mainland China from the time I joined Crown until … October 2016.

19.    In my role as President of International Marketing, including during the Relevant Period, I typically visited China on average at least twelve times per year. During those visits, I travelled with Crown staff working in China and attended meetings with them. On those occasions I observed Crown staff performing the following roles in China:

…

(d)    Crown staff in China were also responsible for contacting Chinese nationals who had gambled at Crown Melbourne and Perth to discuss debts incurred while gambling. Crown staff would remind customers if they owed a debt to Crown.

19    Under the heading “Approach to risk management”, the following appears in Mr Chen’s witness statement:

22.    … In seeking external advice on behalf of Crown, my general practice was to seek external legal advice from a law firm called WilmerHale (WilmerHale), and from 2015 separate advice from the consulting firm Mintz Group (Mintz) …

…

24.    As a consequence of the legal advice Crown received from WilmerHale (referred to … below), it was my understanding during the Relevant Period that the activities of Crown staff in China (referred to in paragraph [19] above) were lawful … I believed that by ensuring the activities of Crown staff in China were consistent with the legal advice from WilmerHale, in combination with the implementation of the security measures recommended by Mintz … then Crown’s activities in China did not contravene Chinese law and therefore did not create a material risk that Crown’s operations would be shut down as a consequence.

25.    Consistent with the desire of Barry [Felstead], Jason [O’Connor] and myself to ensure that Crown’s activities in China were lawful … I approached WilmerHale on behalf of Crown for advice when I became aware of a new development in China related to gambling activity, which warranted revisiting our understanding of the law in China based on WilmerHale’s previous legal advice … In those circumstances, including during the Relevant Period, Crown (typically through me) sought advice from WilmerHale as to whether the relevant laws in China had changed.

26.    Most of the communications I had with WilmerHale were through a partner of that firm named Kenneth Zhou, based in their Beijing office, and occurred on the phone or via email. At the commencement of their retainer … I told the lawyers at WilmerHale about the range of activities carried out by staff in China, as outlined in paragraph [19].

…

28.    I had regular reviews of Crown’s activities in China with the team during the Team Calls and in person during ‘all hands’ meetings and on occasions when I travelled to China. When I travelled to China and met with staff, I took the opportunity through informal discussions with staff members to remind them of the recommended precautions from Crown’s external advisors to take when operating in China. Based on these reviews and meetings, and on my understanding and observation of the activities of Crown staff in China, I was satisfied that they were following the advice and recommended precautions received from Crown’s external advisors that I had communicated to them.

20    The next relevant part of Mr Chen’s witness statement is headed “June 2012 to January 2015”. Mr Chen refers to, and incorporates by reference to discovered document numbers, documents which record legal advice Crown received. I set out below those parts of Mr Chen’s witness statement under that heading on which counsel for Zantran relied:

30.    On 5 June 2012, Crown engaged WilmerHale to provide advice (CWN.502.022.5716). This came about because I had heard general rumours of a government crackdown … As I was responsible for the day-to-day management of Crown staff in China and their interactions with the VIP customers, I decided to be proactive and learn the facts as best as possible by facilitating Crown obtaining legal advice.

31.    In particular, I wanted to obtain legal advice about the law in China to ensure that the Crown team was operating lawfully based on our understanding of the law of the time …

…

37.    On 7 June 2012, Kenneth Zhou of WilmerHale emailed me a document titled, ‘Reception procedures in case of a government investigation in China’ (reception guidelines) (CWN.514.080.8588 and CWN.514.080.8590).

38.    On 8 June 2012, I sent an email to Stefan Albouy, who at the time was Crown’s Senior Vice President of China and Taiwan and reported to me, summarising an earlier call Stefan and I had had with David Weller and Ambassador Barshefsky of WilmerHale (CWN.514.059.9768). In that email, I recorded that WilmerHale had advised that there was little risk of the Crown staff being charged for existing activities in China so long as none of them were personally profiting from the illegal movement of money and that there was little or low risk of Crown staff being detained in China for any reason. On 9 June 2012, I also sent an email to David Weller and Charlene Barshefsky summarizing my understanding of their advice given on that call (CWN.517.009.9948).

39.    On 14 June 2012 I attended a two-hour conference call with Kenneth Zhou of WilmerHale and members of my team … (CWN.517.009.9948).

40.    The same day, I sent an email to Jason O’Connor setting out the conclusions of WilmerHale’s advice from the call (CWN.514.059.7986). Among other things, I said:

1.    WilmerHale said that it is not illegal to be selling offshore gaming within China. There are laws that prohibit the marketing of gaming onshore (for more than 10 people).

2.    That said, because gaming is a sensitive topic, the recommendation was still to be cautious and avoid opening marketing

41.    Based on the advice given by WilmerHale in the telephone calls I refer to above, it was my understanding that it was against the law to bring a group of more than 10 people from China to Australia to gamble and for staff in China to earn a commission for that activity …

42.    As I understood it, the advice from WilmerHale was that it was not illegal to meet with more than 10 people to discuss gambling. However, my understanding and observations were that Crown staff held private one-to-one meetings and small dinners with customers rather than hold larger meetings.

43.    I believed that the initial advice provided by WilmerHale confirmed that Crown was operating within the limits of the law in China. In discussions with Jason he said to me words to the effect that also communicated that this was his understanding.

…

48.    On 19 February 2013, Kenneth Zhou sent me an email summarizing the legislation in China relating to organizing group gambling (CWN.514.071.6286) …

…

50.    Kenneth’s summary confirmed my view that Crown was not contravening the law because (a) it was not organizing a gathering of 10 or more citizens for overseas gambling and (b) Crown staff did not receive kickbacks or referral fees.

21    The next relevant part of Mr Chen’s witness statement is headed “February 2015 to October 2016”. Again, Mr Chen refers to, and incorporates by reference to discovered document numbers, documents which record legal advice Crown received. I set out below those parts of Mr Chen’s witness statement under that heading on which counsel for Zantran relied:

68.     On or around 7 February 2015 I became aware that there was news that the Chinese government had announced a crackdown on foreign casinos. I do not recall how I became aware of the news of the crackdown. As I understood the term, a crackdown by the Chinese government involved government’s enhanced enforcement of existing law in respect of an activity as a way of sending a particular signal to the market.

69.    Crown sought advice from WilmerHale on 9 February 2015 (CWN.502.032.8667). I emailed Kenneth Zhou and said that staff in China were nervous and seeking guidance on whether they should change any of their protocols or behaviors.

70.    Kenneth emphasized three points in his advice:

•    Foreign resort/hotel’s rep offices and employees in China are protected under law so long as the rep offices/employees’ activities are not in violation of law. Introducing hotel/resort facilities to potential customers itself should not be any problem because this is what the rep offices are supposed and licensed to do (liaison and marketing).

•    Employees should certainly not be involved in any money laundering activities. Employees should also avoid dealing with government officials to the extent they can because of the ongoing anti-corruption campaign.

•    Given the highlighted government efforts to crackdown on rep offices with core business to facilitate Chinese individuals gambling abroad, the company’s rep offices/employees in China should focus its business on introducing the hotel/resort and facilities, rather than engaged in any activities which may be viewed as directly facilitating Chinese individuals gambling offshore.

Ms Pan

22    I was not taken in detail to Ms Pan’s witness statement during oral submissions, but Zantran’s counsel said that they relied on it. Ms Pan is currently employed by Crown Melbourne Limited as Assistant Vice President of International Business Development, based at Crown’s resort in Perth. During the Relevant Period she was employed by Crown Resort Pte Ltd and was based in mainland China.

23    Counsel for Zantran referred to paragraph [26] of Ms Pan’s witness statement during oral submissions. That paragraph reads as follows:

From time to time, I would speak to clients about debts they owed to Crown. I would try to encourage clients to pay their debts on time by showing them their outstanding statement of account and pointing to the fact that their outstanding debts would impact their ability to obtain credit, and that if that [sic] wanted another trip to Crown, they would need to clear their existing debts. I was not involved in requesting clients to pay debts from gambling in Crown’s Macau casinos.

24    I assume that the following paragraphs are also relied on in relation to the waiver issue:

Government announcement

38.    I was aware from watching and reading Chinese news that a campaign against corruption began in China in about 2012.

39.    On 5 and 6 February 2015, I attended an ‘All-Hands’ meeting held in Shanghai.

40.    As far as I can recall, shortly after I had returned home to Shenzhen from the All-Hands meeting, I became aware of news of a recent Chinese government announcement about a crackdown relating to foreign casinos. On 9 February 2015, I received an email from Mr Chen, sent to the entire VIP International team, commenting on the announcement. Mr Chen’s email attached reception guidelines that set out the procedures that we should adopt if ever approached by a public official. A copy of that email and its attachment is CWN.502.016.9047 and CWN.502.016.9048. It was by reading that email and by reading online Chinese language news, that I became aware of the government announcement.

41.    On 13 March 2015, I participated in a conference call led by Mr Chen to which Crown’s China based sales team were invited to participate. A copy of the email with details for the conference is CWN.500.001.0178. The government announcement was discussed during that call. As far as I can recall, that was not the first time Mr Chen had discussed the February announcement regarding the crackdown on foreign casinos with us.

42.    I do not recall exactly when it was, but Mr Chen said either in that call or another call sometime in February or March 2015 that he had spoken to Crown’s lawyers and what we were doing in China was legal. He said words to us to the effect that it was only illegal if we organised a group of 10 or more gamblers to attend a foreign casino together on the same trip, and if we received a commission from clients for doing so. Mr Chen said that as we were not doing either of those things what we were doing was not illegal under Chinese law. Based on what Mr Chen told me, I thought the activities I was involved in for Crown were legal because:

(a)    as noted above, I never arranged for large groups of gamblers (and certainly not groups of 10 or more gamblers) to travel to Crown together on a single trip; and

(b)    I did not receive commissions from the clients for gambling.

43.    Either in that phone call or another phone call around that time, Mr Chen instructed us to meet with clients only as part of small groups (with no more than about 3 or 4 Crown staff). I followed that advice.

44.    Mr Chen emailed the reception guidelines again following this phone call. A copy of that email and its attachments are CWN.501.003.5873 and CWN.501.003.5874. Based on what Mr Chen told me, I understood that if I was every [sic] contacted by Chinese authorities, I was to follow the procedure in that document.

the categories of disputed documents

25    Zantran’s submissions in respect of the disputed documents were directed to four categories, defined as follows:

(1)    Communications dated before 16 October 2016 (that is, prior to the end of the Relevant Period) regarding the enforcement of gambling debts in China, which were said to be communications either within the scope of “associated material waiver” or the inconsistency principle enunciated in Mann v Carnell.

(2)    Other communications with lawyers during the Relevant Period in respect of which, it was submitted, “it is not possible to tell from the evidence adduced by Crown whether the communications are privileged and/or fall within the scope of associated material waiver” or the inconsistency principle enunciated in Mann v Carnell, so that I should inspect the documents for this purpose.

(3)    Communications with WilmerHale after 16 October 2016, which, it was submitted, I should inspect to determine whether they fall within the scope of “associated material waiver” or the inconsistency principle enunciated in Mann v Carnell, by revealing advice provided to Crown during the Relevant Period.

(4)    Communications in respect of which, it was submitted, the claim to privilege had not been supported by proper evidence.

26    I can deal with category (4) immediately. Crown has supported each of its claims to privilege with sufficient evidence, principally by identifying the capacity or role in which relevant people asked for, gave or passed on legal advice, together with hearsay evidence of the legal practitioners about the communications’ dominant purpose. In any event, especially when equipped with evidence about the capacity or role of the relevant actors, the fact that the communications were created for the dominant purpose of seeking or giving legal advice was self-evident on the face of the documents.

issues of principle in dispute

27    The parties disagreed about some anterior questions of principle or approach, which it is necessary to resolve.

28    The questions are:

(1)    Is there a recognised species of waiver called “associated material waiver”?

(2)    Does Crown’s waiver in this case extend to legal advice received during the Relevant Period as to the legality of enforcement of gambling debts in China?

(3)    Are documents brought into existence after the expiry of the Relevant Period relevant to Crown’s pleaded state of mind during the Relevant Period?

29    For the reasons set out below, each of those questions is to be answered no.

Associated material waiver?

30    Counsel for Zantran, Mr NP De Young SC, who appeared with Ms K Burke, submitted that passages from the judgment of Young J in AWB Ltd v Cole (No 5) (2006) 155 FCR 30 (AWB Ltd v Cole) under the rubric “Associated material” stand for the proposition that “a voluntary disclosure of privileged documents can result in a waiver of privilege over those documents and associated material”, and that “[t]he test applied to determine the scope of any waiver of associated material is whether the material that the party has chosen to release from privilege represents the whole of the material relevant to the same issue or subject-matter”. Accordingly, so it is submitted, the voluntary provision of one privileged communication gives rise to a waiver of legal professional privilege over all other privileged communications relevant to the same issue or subject matter as the communication voluntarily provided.

31    The passages relied on from AWB Ltd v Cole (at [164]-[166]), which principally comprise quotes from the separate reasons of Gibbs CJ and Dawson J in Attorney-General (NT) v Maurice (1986) 161 CLR 475 (Maurice), are these:

Associated material

164.    Turning to the scope of any imputed waiver, it is well established that a voluntary disclosure of privileged documents can result in a waiver of privilege over those documents and associated material. The test applied to determine the scope of any waiver of associated material is whether the material that the party has chosen to release from privilege represents the whole of the material relevant to the same issue or subject matter: Maurice at 482 and 484 per Gibbs CJ, 488 per Mason and Brennan JJ, and 498-499 per Dawson J.

165.    In Maurice, Gibbs CJ said (at 482):

… Similarly, where a party disclosed a document which contained part only of a memorandum which dealt with a single subject-matter, and then read the document to the judge in the course of opening the case, it was held that privilege was waived as to the whole memorandum: Great Atlantic Insurance Co v Home Insurance Co [[1981] 1 WLR 529]. In that case Templeman LJ said:

… the rule that privilege relating to a document which deals with one subject matter cannot be waived as to part and asserted as to the remainder is based on the possibility that any use of part of a document may be unfair or misleading, that the party who possesses the document is clearly not the person who can decide whether a partial disclosure is misleading or not, nor can the judge decide without hearing argument, nor can he hear argument unless the document is disclosed as a whole to the other side. Once disclosure has taken place by introducing part of the document into evidence or using it in court it cannot be erased.

The same test must be applied in deciding whether the use in legal proceedings of one document impliedly waives privilege in associated material. In Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation [No 2] [[1981] Com LR 138] Mustill J dealt with this question and suggested the following test:

… where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood.

166.    Dawson J discussed the authorities (at 498-499):

In Geo. Doland Ltd v Blackburn Robson Coates & Co [[1972] 1 WLR 1338] waiver of privilege with respect to a conversation between solicitor and client, which took place before litigation was contemplated, was held to extend to any other communications in relation to the subject-matters of the conversation, although the implied waiver was held not to cover similar documents which came into existence for the purpose of prosecuting the litigation. This decision was not followed in General Accident Corporation Ltd v Tanter [[1984] 1 WLR 100] where a distinction was drawn between the waiver of privilege before a trial and the further waiver of privilege by calling evidence in a trial. In the latter situation the waiver was held to extend to the transaction constituted by the privileged communication but not to the subject-matter of that communication arising upon other privileged occasions. General Accident Corporation Ltd v Tanter has been criticized for the distinction which it draws between waiver by the tender of evidence of a privileged communication and waiver by the disclosure of the communication in some other way and for the restriction which it places upon the extent of associative waiver: see Phipson on Evidence [Sweet & Maxwell, 13th ed, 1982] par 15-20. In Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation [No 2], a broader view was taken by Mustill J that ‘… where a party chooses to deploy evidence which would otherwise be privileged the court and the opposition must, in relation to the issue in question, be given the opportunity to satisfy themselves that they have the whole of the material and not merely a fragment’. This view was approved by the Court of Appeal in Great Atlantic Insurance Co v Home Insurance Co. In the United States it has been widely held that voluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege with respect to all other such communications upon the same subject-matter: Weil v Investment/Indicators, Research and Management [647 F 2d 18 (9th Cir, 1981) at 24] and the cases there cited; Diotima Shipping Corp v Chase, Leavitt & Co [102 FRD 532 (D Me, 1984)]; United States v Aronoff [466 F Supp 855 (SDNY, 1979)]; In re Sealed Case [676 F 2d 793 (DC Cir, 1982)].

32    Mr De Young also relied on Young J’s references to two English cases (the first of which was discussed in the extracts from Maurice above), said to illustrate the practical operation of the principle being considered, as follows (AWB Ltd v Cole at [172]-[175]):

172.    Several English cases illustrate the practical operation of the principle. In Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation (No 2) [1981] Com LR 138; [1981] Can. Com. R. 132, a lawyer gave evidence that he had conducted an interview on the basis of a list of questions prepared by the plaintiffs’ lawyers. While privilege was waived with respect to the witnesses’ answers, the plaintiffs sought to maintain privilege with respect to the list of questions: at 139-140.

173.    Mustill J (as his Lordship then was) held at 140 that privilege over the list of questions had been waived by implication:

It seems to me that the written questions were, so to speak, part of the meeting. They were in a sense an agenda for the meeting. They formed the basis for one-half of the exchange between the lawyer and [the witness]. Evidence to that effect having been given by the lawyer, it seems to me that privilege must have been waived for those questions. And I think the interests of justice, which I believe to underlie the authorities on this part of the case, demand that the opposition and the court should have an opportunity to satisfy itself as to the accuracy of the evidence given to the lawyer as to the way in which he conducted the interview.

174.    Mustill J drew a distinction at 140 between the instructions to the lawyer who carried out the questioning and the questions themselves; the instructions did not play a part in the meeting, did not form part of the body of events upon which the Court had to reach conclusions of fact, and were merely part of the prior history of those events.

175.    In R v Secretary of State for Transport; Ex parte Factortame [1997] EWHC 445 (Admin); (1997) 9 Admin LR 591 at 599, Auld LJ made the following observations concerning the application of the test stated in Nea Karteria:

Much depends on whether the party making partial disclosure seeks to represent by so doing that the disclosed documents go to part or the whole of an ‘issue in question’, the expression used by Mustill, J in the passage from his judgment in Nea Karteria that I have cited. The issue may be confined to what was said or done in a single transaction or it may be more complex than that and extend over a series of connected events or transactions. In each case the question for the court is whether the matters in issue and the document or documents in respect of which partial disclosure has been made are respectively severable so that the partially disclosed material clearly does not bear on matters in issue in respect of which material is withheld. The more confined the issue, for example as to the content of a single document or conversation, the more difficult it is likely to be to withhold, by severance, part of the document or other documents relevant to the document or conversation.

33    These authorities were cited in aid of Zantran’s submission that Crown cannot “make partial disclosure of legal advice relating to [the] issues … whether or not Crown staff in China were acting lawfully under Chinese law and whether or not they were at risk of being the subject of the Chinese government crackdown announcement”. In particular, Zantran submits that Crown cannot withhold under cover of privilege “advice about the enforcement of gambling debts in China” because that is “not giving us the documents which go to the whole of the issue in question”.

34    Mr RG Craig SC, who appeared with Mr HC Whitwell for Crown, submitted that the single guiding principle to be applied in determining whether waiver of legal professional privilege occurs at common law is that stated in Mann v Carnell at 13 [29] (Gleeson CJ, Gaudron, Gummow and Callinan JJ), viz:

Waiver may be express or implied … What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

35    Crown submits that although in Maurice (at 481 (Gibbs CJ), 487 (Mason and Brennan JJ), 492-493 (Deane J), 497 (Dawson J)) the High Court held that implied waiver occurs when, by reason of some conduct on the privilege holder’s part, it becomes unfair to maintain the privilege, “fairness” was abandoned as the touchstone of implied waiver in Mann v Carnell (citing, by way of example, Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117 at [25] (Middleton, Robertson and Gleeson JJ)).

36    Crown submits that the scope of the waiver that occurred when it filed its witness statements is necessarily confined to communications that are capable of having affected or contributed to its state of mind: (i) during the Relevant Period; and (ii) in the respects in which its state of mind is relevant to Zantran’s pleaded case.

37    Crown accepts that it has waived privilege over the legal advice that informed its relevant state of mind during the Relevant Period, which is referred to in the witness statements referred to above. It also accepts that, within the body of correspondence there referred to, it cannot “pick and choose” which communications it keeps confidential.

38    But Crown submits that it has not waived privilege in respect of communications “that are incapable of having informed Crown’s state of mind; more particularly, communications that are incapable of having affected or contributed to Crown’s awareness (during the Relevant Period) of the [ASOC] paragraph [36] matters or Crown’s knowledge (during the Relevant Period) of the identical paragraph [79] matters” because “Crown has made no assertion, express or implied, about that body of communications … [and] has not put that body of communications in issue”.

39    Crown submits that there is no inconsistency between making assertions about communications said to have affected or contributed to Crown’s relevant state of mind – its lack of awareness or knowledge of the paragraph [36] and [79] matters – and maintaining the confidentiality of communications that are incapable of having affected or contributed to that state of mind.

40    For those reasons, Crown submits, it has not waived privilege over communications made after 16 October 2016, because such communications are incapable, by reason of their timing, of having affected or contributed to Crown’s state of mind so far as that state of mind is relevant in the proceeding.

41    It may be that the difference between the submissions advanced by the parties that I have set out above with respect to so-called “associated material waiver” is more apparent than real. Zantran’s submission that the test to be applied is “whether the material that the party has chosen to release from privilege represents the whole of the material relevant to the same issue or subject-matter” may be said, on one view, not to invite a different question to the inconsistency test in Mann v Carnell. In either case, the critical anterior question is to identify the relevant issue or subject matter.

42    When waiver is express, as it is here, and an issue arises about whether and to what extent privilege has also been waived with respect to “related” non-disclosed documents, the documents in the latter category may, consistently with Mann v Carnell, be described as “associated material”. However, I do not read anything that Young J said in AWB Ltd v Cole as suggesting, as Zantran contends, that there is some species of waiver involving so-called “associated material” that involves an expansion of the principles in Mann v Carnell. It is clear from his Honour’s reasoning, especially at [177]ff under the heading “Waiver has been established”, that his Honour held that the AWB had waived privilege in that case because:

(1)    by disclosing the results of its legal reviews and legal advice it had obtained to the Australian Government and others, the AWB had deployed the gist or substance of that advice;

(2)    it had made a conscious and voluntary decision so to deploy the advice because it considered that it was in its commercial interests to do so;

(3)    those actions were inconsistent with the maintenance of confidentiality in the advice; and

(4)    having regard to the nature, purpose, terms and extent of its disclosures, the AWB had acted inconsistently with the maintenance of confidentiality over the associated material which underpinned the advice.

43    And the detailed explanation for those conclusions that follows is, with respect, also entirely consistent with what the plurality of the High Court said in Mann v Carnell, including under the heading “Waiver of privilege at common law”, as follows (at 13 [28]ff (Gleeson CJ, Gaudron, Gummow and Callinan JJ)):

28.    At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that ‘waiver’ is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege …

29.    Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is ‘imputed by operation of law’. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege … What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

30.    In Goldberg v Ng [(1995) 185 CLR 83] this Court considered a case in which there was disclosure of a privileged communication to a third party, for a limited and specific purpose, and upon terms that the third party would treat the information disclosed as confidential. The Court was divided upon whether, in the circumstances of the case, privilege was waived. However, the reasoning of all members of the Court was inconsistent with the proposition that any voluntary disclosure to a third party necessarily waives privilege. No application was made on the present appeal to re-open Goldberg or any of the earlier authorities on the subject. In Goldberg, reference was made to the statement of Jordan CJ in Thomason v The Council of The Municipality of Campbelltown [(1939) 39 SR (NSW) 347 at 355]:

The mere fact that a person on some one occasion chooses to impart to another or others advice which he has received from his solicitor indicates no intention on his part to waive his right to refuse on other occasions to disclose in evidence what that advice was, and supplies no sufficient reason for depriving him of a form of protection which the law has deemed it specially necessary to throw around communications between solicitor and client.

(Citations omitted).

See also DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 at 519 [58], 529 [115] (Allsop J, as the Chief Justice then was) (the test to apply at common law is whether the privilege holder has made an assertion (express or implied) as part of its case that lays open the privileged communication to scrutiny, with the consequence that inconsistency arises between the making of the assertion and the maintenance of the confidentiality of the communication), cited with approval in Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 at 359 [61], 360 [65] (Kenny, Stone and Edmonds JJ) and Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117 at [30] (Middleton, Robertson and Gleeson JJ).

44    Senior Counsel for Zantran also relied on Australian Competition and Consumer Commission v Prysmian Cavi e Sistemi Energia SRL (No 10) (2015) 235 FCR 593 (Besanko J) (Prysmian) in support of the proposition that there exists a separate species of “associated material waiver”. In my view, his Honour’s observations in that case about the authorities need to be read in light of the fact that, because the parties had only had a short time to prepare for the argument, each relied on only one case. (AWB Ltd v Cole in the case of the applicant and British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524 (especially at [121] (Phillips, Batt and Buchanan JJA)) in the case of the second respondent.) Secondly, and unsurprisingly, the learned judge in his reasons cited the critical passages from Mann v Carnell (namely [29] and [34]): Prysmian at 597 [13]. Thirdly, it is clear that his Honour applied the Mann v Carnell inconsistency test in reaching the conclusion that the relevant documents be produced, in particular where his Honour concluded that “there would be an inconsistency in the deployment of the letter … and the maintenance of confidentiality over other communications …”: Prysmian at 600 [18]. In my view, therefore, Prysmian is of no assistance to Zantran’s submission.

45    For those reasons, I do not accept Zantran’s contention that AWB Ltd v Cole and Prysmian stand for a proposition that there exists a separate species of “associated material waiver” in the sense for which it contends.

Does waiver extend to legal advice received during the Relevant Period as to the legality of enforcing gambling debts in China?

46    This question is related to the previous question, because it concerns the identification or characterisation of the relevant issue or subject matter for inconsistency/waiver purposes.

47    As I have said (see [33] above), Zantran submits that Crown cannot make partial disclosure of legal advice relating to the issues of whether or not Crown staff in China were: (i) “acting lawfully under Chinese law”; and (ii) “at risk of being the subject of the Chinese government crackdown”. In particular, Zantran submits that Crown, having waived privilege over advice about those issues, cannot withhold advice about the enforcement of gambling debts in China, because that is “not giving us the documents which go to the whole of the issue[s] in question”.

48    This submission is premised on Zantran’s contention that it pleads a case against Crown which includes the allegation that Crown knew during the Relevant Period that it was illegally enforcing gambling debts in China. Crown, conversely, says Zantran does not plead such a case.

49    Crown submits that communications on matters extraneous to the pleaded case are incapable of having affected or contributed to its relevant state of mind. Further, Crown stresses that “the inquiry into Crown’s state of mind in the Relevant Period is not at large – it is an inquiry necessarily tethered to and defined by the pleaded case” (citing the well-known passage from the joint judgment of Mason CJ and Gaudron J in Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287).

50    Crown submits that for present purposes what is relevant is whether, during the Relevant Period, Crown was aware, or had knowledge, of the (identical) matters pleaded at ASOC [36] and [79] (see above at [9]-[10]). It says, therefore, that communications about the legality of enforcing gambling debts in China are irrelevant, because although Zantran pleads that “Crown’s China Operations” were in breach of Chinese law, that illegality is pleaded as having arisen only by reason of the Chinese law set out at ASOC [22]-[24] (see above at [9]), none of which concerns enforcing gambling debts. Accordingly, Crown submits, communications about the enforcement of gambling debts in China cannot have affected or contributed to Crown’s state of mind so far as that state of mind is relevant in the proceeding.

51    Zantran replies that its pleading does allege that Crown’s China Operations were illegal because, inter alia, they included the enforcement of gambling debts in China, citing ASOC [17(g)]. That paragraph of the ASOC states that Crown’s China Operations included “contacting [in mainland China] Chinese nationals who had engaged in gambling at [Crown’s casinos] for the purpose of requesting those Chinese nationals to pay debts incurred while gambling”.

52    Secondly, Zantran submits that Crown’s filed witness statements of Mr O’Connor and Mr Chen “confirm that Crown staff in China were responsible for following up, discussing and reminding Chinese gamblers about repayment of gambling debts owed to Crown”. Zantran also relies on Mr Chen’s statement that Crown told WilmerHale about the activities carried out by Crown staff in China (ie, including meeting with Chinese gamblers to discuss their gambling debts), and that based on WilmerHale’s advice he believed that Crown staff were operating within the limits of Chinese law. Zantran submits that “[h]aving voluntarily adduced evidence that disclosed the [WilmerHale] correspondence, Crown has waived privilege over all legal advice concerning the enforcement of gambling debts owed to Crown in China”.

53    Thirdly, in response to Crown’s contention that “none of the pleaded laws [Articles 25 and 303 of the Criminal Law of the People’s Republic of China] has anything to do with enforcement of gambling debts”, Zantran submits:

(1)    Article 303 provides that gathering a crowd to gamble, opening a gambling establishment, or undertaking gambling as a business, is illegal (citing ASOC [22(a)]);

(2)    it has pleaded reliance on the judgment of the Baoshan District Court by which Crown staff were found guilty of offences in breach of Articles 25 and 303 and in which the Court referred to the fact Crown staff were meeting with gamblers for recovering gambling debts; and

(3)    it has filed an expert report on Chinese law by Associate Professor Andrew Godwin which “refers to the fact that the collection of gambling debts in China is illegal”.

54    In those circumstances, Zantran submits “that the scope of Crown’s associated material waiver extends to legal advice received during the relevant period as to the legality of enforcement of gambling debts in China” and that “the documents in this category are captured by the waiver and should be produced for inspection”.

55    In my view, Zantran does not plead a case founded on the proposition that Crown knew it was enforcing gambling debts in China contrary to Chinese law. That is so because, despite what Zantran says to the contrary: (i) Zantran’s pleaded case is that “Crown’s China Operations” were illegal by reason of Article 303; (ii) Zantran does not plead that enforcement of gambling debts in China is illegal by virtue of Article 303; and (iii) if it matters, Associate Professor Godwin does not opine that it is – his opinion at paragraph 1.3.33 of his first report is limited to a statement that gambling debts are not legitimate debts and therefore cannot be collected through the legal or judicial system of China. In any event, if what Associate Professor Godwin says goes beyond Zantran’s pleaded case, it is beside the point.

56    I do not accept Zantran’s submission that the statements contained in the witness statements of Mr O’Connor and Mr Chen to the effect that they believed Crown was operating lawfully under Chinese law, and that they held that belief because of the legal advice they had received and which was referred to in their witness statements, means that Crown has waived privilege over all legal advice received during the Relevant Period about the legality of its Chinese operations. There is, in my view, no inconsistency or unfairness involved in making those statements while withholding legal advice that does not touch upon Zantran’s pleaded case, because the relevant enquiry is confined by the terms of that pleaded case.

57    Accordingly, privileged communications comprising legal advice received by Crown during the Relevant Period as to the legality of the enforcement of gambling debts in China need not be produced for inspection.

Discovered documents which post-date the Relevant Period

58    Crown submits that any discovered documents which were brought into existence after the Relevant Period (specifically, after 4pm on Friday 14 October 2016, when the ASX closed) cannot inform the formation of any state of mind relevant to the case pleaded against it. It follows, in Crown’s submission, that it cannot have waived privilege over those documents by filing its witness statements. In that regard, Crown relies on the decision of Allsop J in DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 at 531-532 [124]-[125] (approved in Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 at 359 [61], 360 [65] (Kenny, Stone and Edmonds JJ); Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117 at [30] (Middleton, Robertson and Gleeson JJ)). That case, it submits, is authority for the proposition that the principle of imputed waiver is limited to legal advice which the holder of the privilege had before or at the time of the relevant events and which is material to the formation of its relevant state of mind.

59    Zantran does not dispute that proposition of law, but says that if a document, such as a covering email dated after the Relevant Period, includes as part of its email “thread” legal advice given during or prior to the Relevant Period that reveals Crown’s state of mind during the Relevant Period, privilege over such documents may be waived if withholding them would be relevantly inconsistent with the express waiver.

60    Crown’s submission must be accepted. Once earlier advices are purposefully incorporated into a post-Relevant Period privileged communication, those communications are privileged and necessarily can have nothing to do with the formation of Crown’s relevant state of mind during the Relevant Period. No issue of waiver therefore arises. As Allsop J explained in DSE at 531-532 [123]-[128]:

123.    As I have said, the applicant has accepted the waiver of privilege on communications concerning its state of mind by reason of the pleadings. The contentions of the respondents about the asserted further consequences of this waiver were as follows:

The Applicant has accepted that it has waived privilege over at least some of the documents listed in Sch 1 Pt 2 of its list of documents. (See the letters from Clayton Utz to Allens Arthur Robinson dated 10 December 2002 and 4 February 2003.) However, the Applicant appears to assert that imputed waiver of privilege is limited to the production of documents which evidence, record or contain legal advice (including a request for such advice) provided to the Applicant prior to the Agreement being entered into.

The Respondents submit that in doing so, the Applicant has taken too narrow a view of the scope of the imputed waiver. The imputed waiver is as to the Applicant’s state of mind prior to and at the time of entry in to the relevant transactions. That would include, but is not limited to, legal advice after the dispute had arisen the Applicant might have communicated to its legal advisers information bearing upon its state of mind at the time of the transactions. Such communications would be relevant to the Applicant’s state of mind at the relevant time even though brought into existence subsequently and ought to be covered by the imputed waiver.

124.    The applicant’s essential contention in answer to this was as follows:

The Applicant contends that the principle of imputed waiver is limited to legal advice which the party had, before or at the time of the relevant events, material to the formation of its state of mind (see [Telstra Corporation Ltd v BT Australasia Pty Ltd (1988) 85 FCR 152] at 168A).

125.    I think the applicant is correct. The reasons for judgment in Telstra do not dictate that privilege is forever lost on all communications concerning the subject matter of reliance or state of mind. That, it seems to me, is to misunderstand the notion of unfairness discussed by the majority in Telstra and the notion of inconsistency in Mann v Carnell.

126.    A pleading of state of mind is raised. It is accepted that there are opened for scrutiny by that pleading confidential and privilege[d] communications materially affecting or contributing to that state of mind. The inconsistent act is the propounding of the issue which, it is accepted, opens up, or makes relevant, in the sense discussed by the majority in Telstra, an examination of the confidential communication.

127.    Later, in the propounding of a suit to vindicate its rights, being the context in which the above waiver takes place, the applicant consults with its lawyers about the case. I assume that these later confidential and privileged communications will address or have addressed the pleadings and the earlier privileged (though now waived) communications. There is plainly a relationship between the two groups of communications. However, there is no inconsistency between raising the issue of state of mind and maintaining the confidence of the later communications in and about the advising on, and running of, the case. Nor is there any unfairness. The inconsistency or unfairness arises from the putting in issue of a state of mind and maintaining confidence in communications which were relevant to the formation of that state of mind. (Or, putting the matter as I would prefer to put it – the inconsistency or unfairness arises from laying open to scrutiny the communication and maintaining confidence in the communication.) The later communications were, and are, irrelevant to, and had, and could have had, no part to play in the formation of the earlier state of mind.

128.    The submission to the contrary by the respondents misunderstands, with respect, the notion of ‘relevance’ adverted to by the majority in Telstra at 167 A-B: It is the relevance to the formation of the state of mind, not the relevance to the suit that contains the issue of the formation of the state of mind, which brings about the unfairness. This is made clear by what the majority said in Telstra at 168 in the last sentenc[e] in the passage quoted at [87] above: ‘legal advice which the party had, before or at the time of the relevant events, material to the formation of that state of mind’. A communication does not cease to be privileged because its subject matter is an earlier non-privileged occasion or circumstance. The later communication is concerned with the preparation of a case. What is then said does not contribute to the earlier formation of the state of mind. The pleading of the state of mind may throw open to scrutiny the earlier communications relevant to formation of the state of mind; but they do not throw open for scrutiny the later communications about preparing the case.

(Emphasis added, cross-references omitted).

61    It is for those reasons that, in these circumstances, the principle of imputed waiver is limited to legal advice which the party had before or at the time of the relevant events and which is material to the formation of its state of mind. Privileged documents brought into existence after the period during which the relevant state of mind is alleged to have been formed, whether they were brought into existence after the relevant legal proceeding had been commenced (as in DSE) or before the commencement of a proceeding (as is the case here), cannot and do not affect the formation of the relevant state of mind. Accordingly, no issue of waiver arises.

Relevant individuals

62    Before turning to deal with the disputed documents, it is necessary to identify some of the individuals. In his affidavit dated 6 May 2020, Mr Ward deposed as follows concerning the lawyers employed by Crown:

    Michael Neilson was the General Counsel and Company Secretary of Crown during the Relevant Period and held a Victorian practising certificate for the year ending 30 June 2016.

    Debra Tegoni was the Executive General Manager of Legal and Regulatory Services for Crown Melbourne during the Relevant Period and held a Victorian practising certificate for the years ending 30 June 2016 and 2017.

    Jan Williamson was a Senior Legal Counsel for Crown Melbourne during the Relevant Period and held a Victorian practising certificate for the years ending 30 June 2016, 2017 and 2018.

    Scott Cutler was also a Senior Legal Counsel for Crown Melbourne and held a Victorian practising certificate for the years ending 30 June 2017 and 2018.

63    Mr Ward deposed as follows concerning the external lawyers retained by Crown:

    Kenneth Zhou is a Partner of WilmerHale, a US law firm with offices around the world, including in China.

    Jos Mulcahy is a Partner of Ashurst.

    Haojun Li is the Managing Partner of Leezhao Law Office, a Chinese law firm.

    Richard Murphy is a partner of MinterEllison.

64    Mr Ward also deposed as follows concerning relevant non-lawyers employed or retained during the Relevant Period:

    Roland Theiler was employed by Crown Melbourne as Senior Vice President – International Business.

    Michael Chen was employed as Crown’s President of International Marketing.

    Todd Nisbet was employed as Crown’s Executive Vice President – Strategy & Development.

    Mary Gioras was employed by Crown Melbourne as Group Credit Manager.

    Trent Ternes was employed by Crown Melbourne as Credit Collections Manager.

    Liz Hanrahan was employed by Crown as an executive assistant to Michael Neilson.

    Lizzi Dovile was employed by Crown Melbourne as an executive assistant to Debra Tegoni.

    Karl Bitar was employed by Crown as Executive Vice President – Group Marketing & Brand Strategy.

    Mark Arbib was employed by Consolidated Press Holdings Ltd, which since 1 July 2016 has provided services to Crown and owes obligations of confidentiality to Crown.

Legal professional privilege: general principles

65    Before turning to deal with the disputed documents, it is also necessary to set out in summary form relevant (undisputed) principles concerning legal professional privilege:

(1)    A communication or document will be privileged if it was made or brought into existence for the dominant purpose of obtaining or providing legal advice, or to conduct or aid in the conduct of litigation in reasonable prospect: see, eg, Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 73 [61] (Gleeson CJ, Gaudron and Gummow JJ); Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 552 [9] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

(2)    A dominant purpose is a reference to “the ruling, prevailing, or most influential purpose”: see, in a different context, Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416 (Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ).

(3)    The purpose for which a document was brought into existence is a question of fact that must be determined objectively. However, evidence of the subjective purpose will be relevant and often decisive: see Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 107 [172] (Callinan J).

(4)    The relevant purpose will ordinarily be that of the maker of the communication or the document containing the communication, but this will not always be the case. As Gummow J said in Hartogen Energy Ltd (in liq) v Australian Gas Light Company (1992) 36 FCR 557 at 568-569 (cited with approval in Ensham Resources Pty Ltd v AIOI Insurance Company Ltd (2012) 209 FCR 1 at 12 [76] (Lander and Jagot JJ); Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 at 338 [14] (Batt JA; Charles and Callaway JJA agreeing)):

In Laurenson v Wellington City Corporation [1927] NZLR 510, Skerrett CJ looked to the person who ‘calls into existence documents in the bona fide belief that litigation will probably ensue …’ [emphasis supplied]. And the phrase I have emphasised was employed by Stephen, Mason and Murphy JJ in Grant v Downs [(1976) 135 CLR 674] (at 682-683). It is apt to describe the situation where, for example, solicitors commission the provision of a technical report; the relevant intention will not be that of the author but the solicitor.

(5)    The party claiming privilege bears the onus of proof to establish the facts that provide the basis for the claim: see, eg, Grant v Downs (1976) 135 CLR 674 at 689 (Stephen, Mason and Murphy JJ).

(6)    However, where communications take place between a client and independent legal advisers, or between a client’s in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications: see, eg, AWB Ltd v Cole at 45 [44(4)] (Young J); Kennedy v Wallace [2004] FCA 332; 208 ALR 424 at 442 [65] (Gyles J), affirmed on appeal in Kennedy v Wallace (2004) 142 FCR 185 at 191-192 [23]-[27] (Black CJ and Emmett J).

(7)    Legal professional privilege protects communications rather than documents, as the test for privilege is anchored to the purpose for which the document was brought into existence. Thus, legal professional privilege can attach to copies of non-privileged documents if the purpose of bringing the copy into existence satisfies the dominant purpose test: see Commissioner of Australian Federal Police v Propend Finance Ltd (1997) 188 CLR 501 at 507-509 (Brennan CJ), 544 (Gaudron J), 553-554 (McHugh J) 571-572 (Gummow J), 587 (Kirby J) (Propend), as modified by Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49.

66    A number of the documents in this case comprise print outs of email chains. Thawley J recently considered how the Propend principle applies in that context in Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853 at [19]ff, as follows:

19.    A number of the sample documents comprise a print out of an email chain. Where the relevant document comprises an email chain, I refer to the most recent in time email as the ‘lead email’. It is the lead email which has been discovered, and which comprises the principal communication. The dominant purpose of making that lead communication is important to the analysis of the treatment of other emails in the chain. Often, the lead email forwards, or replies to, an email chain. Whilst the analysis turns each time on the particular document (a print out of the communication being the lead email and any chain), it is perhaps useful to make the following observations (disregarding for present purposes any question of waiver of privilege):

(1)    If the communication being the lead email was not made for the dominant purpose of obtaining or giving legal advice, then it may nevertheless be appropriate to redact parts of the lead email or subsequent emails in the chain, or attachments to the lead email, if the content or nature of a privileged communication might be inferred from the document if it were left unredacted ...

(2)    If the dominant purpose of the communication being the lead email was the giving of legal advice by a retained lawyer, then it may be that the email chain will be privileged because the subsequent emails in the chain are to be regarded, in effect, as copies of documents furnished by the lawyer with the advice being the lead email. The lead email is a communication of legal advice, with the subsequent emails in the chain being components of that communication (in effect, copies of documents) provided by the lawyer for the dominant purpose of providing the legal advice (and perhaps also constituting copies of communications to the lawyer for the purpose of obtaining the advice). If the dominant purpose of the lawyer notionally making the copy of the email chain beneath the lead email was to provide the email chain to the client as part of the communication of legal advice, that email chain is privileged.

(3)    If the dominant purpose of the communication being the lead email was the obtaining of legal advice from a retained lawyer, then the email chain may also be privileged because that email chain is, in effect, a copy of communications provided to the lawyer for the dominant purpose of obtaining legal advice. The forwarding of a chain of emails might constitute or be treated as ‘material prepared for submission to the legal adviser’ or ‘components’ of the privileged communication being the lead email: Propend at 571. So far as concerns the email chain forwarded with the lead email, the inquiry centres on the dominant purpose of the client in making what is, in effect, a copy of the email chain. It is at the point in time when the email chain is notionally copied (when it is notionally copied by forwarding or replying) that the question of dominant purpose must be analysed ... At that time, the whole chain is generally notionally copied (by forwarding or replying) as a component of the lead email, even though it may be that only particular emails in the chain were regarded as relevant or significant to the obtaining of advice. The dominant purpose of making the copy of the chain is often, if not generally, to put particular emails in the chain for submission to the lawyer. I did not exclude the possibility that it is appropriate in a particular case to treat the forwarding of an email chain as an act of copying each email in the chain individually, rather than a single act of copying the chain, such that one would need to analyse the dominant purpose of each act of copying. However, the circumstances were not such in the present case for such an approach to be taken.

20.    The third category above was considered in Kamasaee v Commonwealth (No 2) [2016] VSC 404 at [43]-[47]. Macaulay J held that ‘forwarding’ an antecedent chain of emails to a lawyer to obtain advice amounted to making a copy of the email chain for the dominant purpose of providing it to the lawyer for advice. It did not matter that the earlier emails themselves were non-privileged communications. See also Desane Properties Pty Ltd v New South Wales [2018] NSWSC 173 at [178]-[181], per Robb J; Cargill Australia Ltd v Viterra Malt Pty Ltd (No 8) [2018] VSC 193 at [33]-[36], per Macaulay J.

(Emphasis in original.)

The documents

67    I have reached the conclusions set out below after inspecting the disputed documents and by applying the legal principles set out above.

68    During the course of Mr Craig’s submissions, it struck me that: (i) a number of the disputed documents were entirely irrelevant to any issue in the proceeding, on any view of it; and (ii) some copies of emails or documents recording legal advice given before or during the Relevant Period which were attached to a “lead” or “host” email sent after the Relevant Period would in the ordinary course have already been discovered in their “original” form. After the hearing, the parties, at my request, made efforts to see if the scope or number of disputed documents could be reduced as a consequence, but I was told that “Crown no longer presses to have the documents the subject of recent correspondence removed from his Honour’s bundle” and that “[s]ubject to the wishes of the Court, the parties are content for his Honour not to determine the issue of the discoverability of the documents and are content for his Honour to determine only the privilege claims in respect of them”.

69    Be that as it may, a number of disputed documents (identified below) are irrelevant and, as to some of them, it is plain that they were mistakenly discovered. I therefore see no utility in making any privilege/waiver ruling about them, as the parties invite me to do.

70    Many of the disputed documents are lead emails which attach other emails, some of which comprise or record legal advice. In all such instances, I am satisfied, because it is obvious on their face, that the attached emails were “purposefully incorporated”, as that phrase is used in the cases. Where convenient, I also refer in the course of dealing with each of the documents to the effect of Mr Ward’s affidavit (obviously hearsay) evidence about the purpose for which the communications were made. I include below references to the tab numbers from the folder of documents that I was asked to inspect for ease of reference.

71    Tab 2: CWN.570.001.5929-5944. This is an email dated 9 September 2014 from Mr Theiler of Crown to a number of other Crown employees, which in a single line redacts the recording of legal advice provided to Crown, and in another redacts a communication about a step to be taken in litigation in Victoria. Production of an unredacted version would reveal confidential communications made for the dominant purpose of providing legal advice and providing legal services in connection with litigation. Legal professional privilege thus operates to prevent production of the document to that extent. There has been no waiver in respect of the first redacted sentence because it reveals a communication concerning the enforcement of gambling debts in China: see [46]-[57] above. As to the second redacted sentence, it concerns a legal proceeding in Australia unrelated to this proceeding. (A third redaction at CWN.570.001.5941, which forms part of the same email, was not pressed.)

72    Tab 3: CWN.569.004.8139-8140 attaching CWN.569.004.8141-8145. This is an email dated 12 March 2015 from Mr Mulcahy of Ashurst to Ms Williamson of Crown, summarising the effect of advice received from DLA Piper “on enforcement of gambling debts in China”. The attached document is a copy of that advice. Both are self-evidently privileged communications. The redacted parts of each communication concern the enforcement of gambling debts in China. Privilege over such material has not been waived: see [46]-[57] above.

73    Tab 4: CWN.569.009.6573-6575 attaching CWN.569.009.6576 and CWN.569.009.6578-6582. The redacted parts of CWN.569.009.6573, 6574 and 6575 are part of email exchanges between Mr Mulcahy and Ms Williamson dated 28 May 2015 concerning an irrelevant Australian legal proceeding, which attaches (as CWN.569.009.6578-6582) the legal advice from DLA Piper concerning recovery of gambling debts in China that is also CWN.569.004.8141-8145. The emails about the Australian proceeding were presumably included inadvertently or unnecessarily, or as counsel for Crown put it, by “cross-pollination”. The documents are thus privileged and privilege over them has not been waived, for the reasons given at [72] above.

74    Tab 5: CWN.502.068.5841. This document is irrelevant.

75    Tab 6: CWN.502.012.8580. This document is irrelevant.

76    Tab 7: CWN.502.049.5992-5994 attaching CWN.502.049.5995-5998. The lead document is an email from Mr Zhou of WilmerHale to Mr Chen of Crown dated 15 July 2015. The redacted sections of that email comprise legal advice from WilmerHale to Crown and they are self-evidently privileged. The subject matter of the redacted legal advice concerns what gamblers in China may lawfully do, and in any event addresses a proposed operation, not functions and tasks performed by Crown employees on mainland China. It has nothing to do with this case, on any view. Privilege has therefore not been waived in respect of the email. The attached document is in Mandarin, and is summarised in the lead email.

77    Tab 8: CWN.569.008.5120-5122 attaching CWN.569.008.5123-5124. These documents are irrelevant.

78    Tab 9: CWN.539.088.4613-4615 attaching CWN.539.088.4631-4640. Zantran did not press its objection with respect to these documents.

79    Tabs 10 and 11: CWN.525.015.3571-3574 and CWN.525.032.9606-9609. These documents are relevantly identical. They contain legal advice. The redacted parts of them are the contents of an email dated 19 August 2015 from Mr Neilson of Crown to Mr Nisbet of Crown about a draft presentation. Mr Ward deposed that it was prepared for the dominant purpose of providing legal advice. Its contents are consistent with that. Otherwise, to adopt Crown’s submission, “the contents of this communication are completely extraneous to the proceeding”.

80    Tab 12: CWN.502.067.6348. This is an email dated 23 January 2016 from Mr O’Connor of Crown to Mr Chen of Crown. The part of the single sentence that is redacted records legal advice about a question concerning the ability of Chinese nationals to move money out of China. That is a privileged communication concerning an issue that is extraneous to the proceeding. No issue of waiver therefore arises.

81    Tab 13: CWN.569.002.8741-8743 attaching CWN.569.002.8744 and CWN.569.002.8745-8749. Ms Williamson has informed Mr Ward, and Mr Ward deposed, that the lead email (from Ms Gioras of Crown to Ms Williamson dated 11 April 2016) was brought into existence for the dominant purpose of obtaining legal advice for Crown and providing legal advice to Crown about debt recovery in China. That is self-evident from its contents. The two entirely redacted attachments are copies of legal advice concerning that topic. CWN.569.002.8745-8749 is a copy of the DLA Piper advice dated 10 March 2015 that is also CWN.569.004.8141-8145 (see [72] above). No issue of waiver arises because Zantran does not plead a case founded on the proposition that Crown knew that it was enforcing gambling debts in China contrary to Chinese law and accordingly, privileged documents comprising legal advice received by Crown during the relevant period as to the legality of enforcement of gambling debts in China need not be produced for inspection: see [46]-[57] above.

82    Tab 14: CWN.565.014.4920-4925 attaching CWN.565.014.4926-4927. This is a partially redacted email chain which ends in an email from Mr Ternes of Crown to Ms Williamson of Crown, dated 27 June 2016. Mr Ward deposed that each communication in the chain from Ms Williamson was made for the dominant purpose of providing legal advice to Crown, and that each communication from Mr Ternes was made for the dominant purpose of obtaining legal advice. They are self-evidently privileged, and no issue of waiver arises because the advice addresses an agreement in respect of a gambling debt owed by a customer: see [46]-[57] above.

83    Tabs 15 and 16: CWN.565.014.4938-4943 and CWN.565.014.5985-5989 attaching CWN. 565.014.5991-5992. These documents comprise sub-sets of the tab 14 documents. The same conclusions apply (see [82] above).

84    Tab 17: CWN.569.002.8750-8753 attaching CWN.569.002.8754 and CWN.569.002.8755. These documents are relevantly identical to those at tab 13. The same conclusions apply (see [81] above).

85    Tab 18: CWN.502.038.8204-8206. The redacted email at the bottom of this chain is a request for legal advice dated 18 October 2016 from Mr Neilson of Crown to Mr Zhou of WilmerHale and Mr Li of Leezhao Law Office. The next redacted email records the provision of legal advice by Mr Zhou to Crown employees including Mr Chen. The final redacted email is a summary of that legal advice provided by Mr Chen to Mr Barry Felstead of Crown. Production of those aspects of the document would thus reveal legal advice. No issue of waiver arises because, as an unredacted part of the email chain indicates, the legal advice relates to marketing activities outside China, an issue that is extraneous to the proceeding. In any event, the advice sought and given is “new” advice, in the sense that it does not refer back to advice provided during (or before) the Relevant Period, and does not reveal Crown’s state of mind during the Relevant Period.

86    Tab 19: CWN.517.032.1165-1168. This is an email chain commencing on 16 October and ending on 18 October 2016 in which Mr Neilson of Crown seeks, and is given, legal advice from Mr Zhou of WilmerHale, which Mr Neilson then forwards to Ms Hanrahan of Crown, with a request to print it. The advice sought and given is “new” advice, in the sense that it does not refer back to advice provided during (or before) the Relevant Period, and does not reveal Crown’s state of mind during the Relevant Period.

87    Tab 20: CWN.525.017.3234-3235. This document is irrelevant.

88    Tab 21: CWN.517.020.8713 attaching CWN.517.020.8714. Crown did not press its claim to privilege over this document.

89    Tab 57: CWN.517.009.0741 attaching CWN.517.009.0744-0745. This document is an email from Ms Tegoni of Crown to Ms Williamson of Crown dated 14 October 2016. It forwards and attaches without comment the content of legal advice provided to Crown by Mr Zhou of WilmerHale in 2012. It is self-evidently a privileged document. No issue of waiver arises because the subject matter of the advice concerns instructions to employees in the case of a government investigation, which is extraneous to this proceeding.

90    Tab 58: CWN.517.017.5198 attaching CWN.517.017.5199-5211. The lead document is an email from Ms Dovile of Crown to Ms Tegoni of Crown dated 14 October 2016. It forwards without comment legal advice provided by Mr Zhou of WilmerHale to Mr Chen of Crown dated 19 February 2013 and headed “Privileged and Confidential Attorney Work Product” (Mr Zhou’s 19 February 2013 advice). Mr Ward deposed that Ms Tegoni sought the information provided to her by Ms Dovile for the dominant purpose of providing legal advice to Crown. This copy of Mr Zhou’s 19 February 2013 advice is privileged. I note, however, that the “original” version of that advice is incorporated by reference and quoted from in paragraph [66] of Mr O’Connor’s witness statement: see [13] above. Presumably, therefore, Zantran has inspected it, or is permitted to inspect it.

91    Tab 59: CWN.569.003.0326 attaching CWN.569.003.0327-0339. The lead document is an email dated 14 October 2016 from Ms Tegoni of Crown to Mr Neilson of Crown, attaching Mr Zhou’s 19 February 2013 advice. Mr Ward deposed that the dominant purpose of Ms Tegoni’s communication was the provision of legal advice. The documents are privileged. The email was sent after the Relevant Period, so no issue of waiver arises for the reasons given at [58]-[61] above.

92    Tab 60: CWN.569.003.0340 attaching CWN569.003.0341-0353. The lead document is an email dated 14 October 2016 from Ms Tegoni of Crown to Mr Zhou of WilmerHale, copied to Mr Neilson of Crown, attaching another copy of Mr Zhou’s 19 February 2013 advice, and requesting updated and additional advice. The additional advice sought is “new” advice, and does not reveal Crown’s state of mind during the Relevant Period. No issue of waiver arises.

93    Tab 61: CWN.569.003.0354 attaching CWN.569.003.0355-0367. These documents are another copy of the tab 60 documents referred to in the immediately preceding paragraph and are privileged. No issue of waiver arises.

94    Tab 62: CWN.569.003.0368 attaching CWN.569.003.0369-0381. The lead document is an email from Ms Dovile of Crown to Ms Tegoni of Crown dated 14 October 2016. It attaches without comment Mr Zhou’s 19 February 2013 advice. Mr Ward deposed that the dominant purpose of receiving the information was for the purpose of providing legal advice to Crown. The communication is privileged. The email was sent after the Relevant Period, so no issue of waiver arises for the reasons given at [58]-[61] above.

95    Tab 63: CWN.569.003.0384 attaching CWN.569.003.0385-0388. These documents are an email and attachments that are identical to the tab 62 documents, save that the recipient of the email is Ms Williamson of Crown, rather than Ms Tegoni. The communication is privileged and no issue of waiver arises for the reasons given at [94] above.

96    Tab 22: CWN.569.006.3672 attaching CWN.569.006.3673-3679. The lead document is an email dated 14 October 2016 from Ms Dovile of Crown to Ms Tegoni of Crown. It attaches an email dated 27 August 2013 containing a summary of legal advice from Baker & McKenzie in Hong Kong. Mr Ward deposed that Ms Tegoni’s predominant purpose in having Ms Dovile send her this material was to provide Crown with legal advice. The lead email was sent after the Relevant Period, so no issue of waiver arises for the reasons given at [58]-[61] above.

97    Tab 23: CWN.569.006.3680 attaching CWN.569.006.3681-3687. These documents are another copy of the documents at tab 22.

98    Tab 24: CWN.517.017.5361-5370 attaching CWN.517.017.5371-5377. The lead document is an email from Mr Cutler of Crown to Ms Tegoni of Crown dated 17 October 2016, which incorporates other emails. Mr Ward deposed that the dominant purpose of the communication was the provision of legal advice. The lead email is dated after the Relevant Period, so no issue of waiver arises for the reasons given at [58]-[61] above.

99    Tab 25: CWN.517.017.5401 attaching CWN.517.017.5402. The lead document is an email sent by Ms Dovile of Crown to Ms Tegoni of Crown, with the subject line “LEGALLY PRIVILEGED & CONFIDENTIAL”, dated 17 October 2016. It attaches undated legal advice, also headed “LEGALLY PRIVILEGED & CONFIDENTIAL”. Mr Ward deposed that Ms Tegoni asked Ms Dovile to send her the advice for the purpose of providing legal advice to Crown. The email and the advice are privileged. The email is dated after the Relevant Period, so no issue of waiver arises for the reasons given at [58]-[61] above.

100    Tab 26: CWN.517.015.3867-3872 attaching CWN.517.015.3873-3878 and CWN.517.015. 3879-3880. The lead document is an email from Mr Zhou of WilmerHale to Ms Tegoni of Crown dated 18 October 2016. It is headed “Privileged and Confidential Attorney Work Product” and it is a self-evidently privileged communication. The advice sought by Crown and given by Mr Zhou in the email is principally an “update” or “confirmation” of legal advice previously provided. The email is dated after the Relevant Period, so no issue of waiver arises for the reasons given at [58]-[61] above.

101    Tab 27: CWN.517.047.9882-9883 attaching CWN.517.047.9884-9889. Crown no longer presses its claim to privilege over this document.

102    Tab 28: CWN.517.009.1300 attaching CWN.517.009.1301, CWN.517.009.1302, CWN.517. 009.1303-1305, CWN.517.009.1306-1307 and CWN.517.009.1308-1309. The lead document is an email dated 19 October 2016 from Ms Williamson of Crown to Ms Tegoni of Crown, attaching various earlier (July 2015) emails recording or communicating legal advice. It is not clear to me how those advices bear on any issue in the proceeding, but in any event, the lead email is dated after the Relevant Period, so no issue of waiver arises for the reasons given at [58]-[61] above.

103    Tab 29: CWN.517.015.4120 attaching CWN.517.015.4121-4123, CWN.517.015.4124-4128, CWN.517.015.4129-4132, CWN.517.015.4133-4135, CWN.517.015.4136-4138, CWN.517. 015.4139-4142, CWN.517.015.4143-4144 and CWN.517.015.4145-4146. This is an email from Mr Chen of Crown to Ms Tegoni and Mr Neilson of Crown dated 19 October 2016, attaching various pieces of correspondence (being legal advice) received from WilmerHale in 2015. The dominant purpose of the communication was, self-evidently, to obtain legal advice for Crown or to allow Ms Tegoni and Mr Neilson to provide legal advice. The email is dated after the Relevant Period, so no issue of waiver arises for the reasons given at [58]-[61] above.

104    Tab 30: CWN.517.015.3981 attaching CWN.517.015.3982-3986, CWN.517.015.3987 and CWN.517.015.3988-3996. This is an email from Ms Williamson of Crown to Ms Tegoni of Crown, dated 19 October 2016, attaching two newspaper articles. Mr Ward deposed that Ms Williamson sent the email for the dominant purpose of providing legal advice to Crown. The email is dated after the Relevant Period, so no issue of waiver arises for the reasons given at [58]-[61] above.

105    Tab 31: CWN.517.016.1973-1974 attaching CWN.517.016.1975 and CWN.517.016.1976-1990. Crown no longer presses its claim to privilege over this document.

106    Tab 32: CWN.517.017.5836 attaching CWN.517.017.5838 and CWN.517.017.5839-5853. Crown no longer presses its claim to privilege over this document.

107    Tab 33: CWN.517.023.6009 attaching CWN.517.023.6010-6014, CWN.517.023.6015-6018, CWN.517.023.6019-6021, CWN.517.023.6022-6024, CWN.517.023.6025-6028, CWN.517. 023.6029-6030 and CWN.517.023.6031-6032. The attachments are a sub-set of the attachments to the lead email at tab 29. The lead document is an email from Mr Chen of Crown to Ms Tegoni of Crown dated 19 October 2016, which from its contents can be inferred was sent for the dominant purpose of obtaining legal advice. The documents are privileged and the email is dated after the Relevant Period, so no issue of waiver arises for the reasons given at [58]-[61] above.

108    Tab 34: CWN.517.023.6136 attaching CWN.517.023.6137-6139, CWN.517.023.6140-6144, CWN.517.023.6145-6148, CWN.517.023.6149-6151, CWN.517.023.6152-6154, CWN.517. 023.6155-6158, CWN.517.023.6159-6160 and CWN.517.023.6161-6162. The lead document is an email from Mr Chen of Crown to Ms Tegoni of Crown dated 19 October 2016, attaching various advices from WilmerHale. The attachments are the same as the attachments to the lead email at tab 29. The documents are privileged and the lead email is dated after the Relevant Period, so no issue of waiver arises for the reasons given at [58]-[61] above.

109    Tab 35: CWN.517.017.5879 attaching CWN.517.017.5880-5881. The lead document is an email from Ms Tegoni of Crown to Mr Neilson of Crown dated 19 October 2016 which contains a request for legal advice. The subject line of the email reads “LEGALLY PRIVILEGED CONFIDENTIAL ADVICE FOR MN.docx”. The attachment is a longer version of the advice at CWN.517.017.5402, dealt with at tab 25 above. The email and the attachment are privileged. The email is dated after the Relevant Period, so no issue of waiver arises for the reasons given at [58]-[61] above.

110    Tab 36: CWN.517.017.6038-6039 attaching CWN.517.017.6040-6041. The lead email chain contains a request from Ms Tegoni of Crown to Mr Zhou of WilmerHale for legal advice, dated 19 October 2016 at 2.22pm. The response, at 9.33pm, is headed “Privileged and Confidential Attorney Client Work Product”. The email chain is privileged, as is its attachment which is an earlier advice from WilmerHale. The email chain is dated after the Relevant Period, so no issue of waiver arises for the reasons given at [58]-[61] above.

111    Tab 37: CWN.517.032.5785 attaching CWN.517.032.5786-5790. Crown no longer presses its claim to privilege over this document.

112    Tab 38: CWN.517.009.9932-9934 attaching CWN.517.009.9935, CWN.517.009.9936-9937, CWN.517.009.9938-9943, CWN.517.009.9944, CWN.517.009.9945-9946, CWN.517.009. 9947, CWN.517.009.9948-9950, CWN.517.009.9951-9953, CWN.517.009.9954 and CWN. 517.009.9955. The lead email chain commences with an email from Ms Tegoni of Crown dated 5 December 2016 to Mr Zhou of WilmerHale, copied to Mr Neilson of Crown, asking Mr Zhou to provide copies of advices previously given to Crown (at CWN.517.009.9933). Mr Zhou replies (at CWN.517.009.9932) by an email dated 7 December 2016 attaching copies of the advices (emails) requested (CWN.517.009.9935-9955) dated (in the order they appear) 18 September 2014, 19 February 2013 (parts of which are in Mandarin), 13 June 2012, 19 and 22 May 2013, 15 April 2013 and 7 June 2012. The emails are self-evidently privileged and because they are incorporated into an email dated after the Relevant Period, no issue of waiver arises for the reasons given at [58]-[61] above.

113    Tab 39: CWN.517.010.4607 attaching CWN.517.010.4608-4609. The lead document is an email dated 22 December 2016 from Ms Dovile of Crown to Ms Tegoni of Crown, sent in response to a request for information. Mr Ward deposed that Ms Tegoni asked Ms Dovile for the information for the dominant purpose of obtaining legal advice for Crown. I am satisfied, also having regard to the contents of the email and the attached document headed “LEGALLY PRIVILEGED AND CONFIDENTIAL”, that the email and its attachment were created by Crown for the dominant purpose of obtaining legal advice. They are privileged and, because they are dated after the Relevant Period, no issue of waiver arises for the reasons given at [58]-[61] above.

114    Tab 40: CWN.517.011.0102-0104. This is an email chain that commences with an email from Ms Tegoni of Crown dated 15 December 2016 requesting legal advice in relation to an individual being held in detention in China. The email is addressed to the detained person’s lawyers in China. The response (CWN.517.011.0103) is in Mandarin. Ms Tegoni then asks an employee of Crown to translate it (ibid). The reply is an email from that employee, Mr Tim Curtis, with the translation imbedded in it (CWN.517.011.0102). Mr Ward deposed that Ms Tegoni sought the information provided to her for the dominant purpose of providing legal advice to Crown. I am satisfied, also having regard to the contents of the emails, that they were created by Crown for the dominant purpose of obtaining of legal advice. The emails are privileged and because they are dated after the Relevant Period, no issue of waiver arises for the reasons given at [58]-[61] above.

115    Tab 41: CWN.517.026.3615-3617. This is a duplicate of the documents at tab 40 (CWN.517.011.0102-0104).

116    Tab 42: CWN.538.073.3290-3295. This is an email chain. At CWN.538.073.3290-3291 is an email from Ms Tegoni of Crown to Mr Bitar of Crown dated 10 January 2017 at 6.20pm, which forwards a legal advice from WilmerHale dated 18 October 2016. The 6.20pm email from Ms Tegoni and the advice it forwards is privileged. The provision of that advice by Ms Tegoni to an employee of Crown, Mr Bitar, does not amount to a waiver of that privilege. In my view, the balance of the 10 January 2017 email exchanges at CWN.538.073.3290 between Ms Tegoni and Mr Bitar are not privileged (that is, from Mr Bitar to Ms Tegoni at 8.30pm, from Ms Tegoni to Mr Bitar at 8.57pm and from Mr Bitar to Ms Tegoni at 9.02pm), and copies of them should be produced for inspection.

117    Tab 43: CWN.538.073.3302-3307. This email chain is a subset of the emails at tab 42 (CWN.538.073.3290-3295) – only the emails between Mr Bitar and Ms Tegoni on 10 January 2017 at 8.57pm and 9.02pm are missing. For the reasons given in the preceding paragraph, the email from Mr Bitar to Ms Tegoni at 8.30pm should be produced for inspection, but the balance of this document remains privileged.

118    Tab 44: CWN.514.054.8816-8821. This is an email purportedly from Mr O’Connor of Crown to Ms Dovile of Crown dated 15 February 2017 at 1.38pm. It forwards an email from Mr O’Connor to Mr Chen of Crown dated 10 February 2015 with the subject line “Recent news”, replying to Mr Chen’s email at 9.44pm the same day. Mr Chen’s email, in turn, forwarded to Mr O’Connor a string of emails (CWN.514.054.8817-8821) from Mr Zhou of WilmerHale, each dated February 2015, each containing legal advice. Mr Ward has deposed that Ms Dovile accessed Mr O’Connor’s email inbox, because Mr O’Connor was incarcerated in China at that time, in order to send the lead email. As Mr Ward explained: “Mr O’Connor was detained in China on this date. I am informed by Ms Tegoni, and verily believe, that she instructed Ms Dovile to access Mr O’Connor’s mailbox and identify and forward certain emails from that inbox for the purpose of Ms Tegoni seeking and/or providing legal advice to Crown”. The whole of the forwarded email chain forms part of Ms Dovile’s email. It is apparent from the emails that the objective dominant purpose of the communication was the obtaining of legal advice for Crown or the provision of legal advice to Crown. The emails are privileged and because they are dated after the Relevant Period, no issue of waiver arises for the reasons given at [58]-[61] above.

119    Tab 45: CWN.569.004.8139-8140 attaching CWN.569.004.8141-8145. These documents are duplicates of those at tab 3 (also numbered CWN.569.004.8139-8140 and CWN.569.004.8141-8145).

120    Tab 46: CWN.515.001.0106-0108 attaching CWN.515.001.0109-0111, CWN.515.001. 0112-0115, CWN.515.001.0116-0118, CWN.515.001.0119-0120, CWN.515.001.0121-0122, CWN.515.001.0123-0126 and CWN.515.001.0127-0131. The lead document is a chain of seven email exchanges back and forth between Ms Tegoni of Crown and Mr Zhou of WilmerHale between 8.49am and 3.47pm on 19 October 2016, involving requests for, and the provision of, legal advice. The final email from Mr Zhou to Ms Tegoni attaches (at CWN.515.001.0109-0131) email correspondence seeking, and containing or recording, legal advice dated June, July and October 2015. The emails are privileged and because they are dated after the Relevant Period, no issue of waiver arises for the reasons given at [58]-[61] above.

121    Tab 47: CWN.569.005.0150 attaching CWN.569.005.0151-0153, CWN.569.005.0154-0157, CWN.569.005.0158-0160, CWN.569.005.0161-0162, CWN.569.005.0163-0164, CWN.569. 005.0165-0168, CWN.569.005.0169-0173 and CWN.569.005.0174-0176. These documents are duplicates of those at tab 29.

122    Tab 48: CWN.569.006.4072-4073 attaching CWN.569.006.4074-4075. These documents are duplicates of those at tab 36.

123    Tab 49: CWN.569.009.7982-7984 attaching CWN.569.009.7985-7987, CWN.569.009. 7988-7991, CWN.569.009.7992-7994, CWN.569.009.7995-7996, CWN.569.009.7997-7998, CWN.569.009.7999-8002 and CWN.569.009.8003-8007. These documents are duplicates of those at tab 46.

124    Tab 50: CWN.569.006.6079-6081 attaching CWN.569.006.6082, CWN.569.006.6083-6084, CWN.569.006.6085-6087, CWN.569.006.6088-6090, CWN.569.006.6091-6092, CWN.569. 006.6093-6098, CWN.569.006.6099, CWN.569.006.6100-6101, CWN.569.006.6102 and CWN.569.006.6103. These documents are duplicates of those at tab 38.

125    Tabs 51 and 52: CWN525.032.9606-9609 and CWN.525.015.3571-3574. These documents are duplicates of those at tabs 10 and 11.

126    Tab 53: CWN.517.047.9882-9883 attaching CWN.517.047.9884-9899. Crown no longer presses its claim to privilege over these documents.

127    Tab 54: CWN.545.002.6889. This document is an email from Ms Katie Andrews (Group Legal Counsel & Company Secretary of Consolidated Press Holdings Pty Ltd (CPH)) to Mr Neilson of Crown, dated 15 March 2017. It relates to what Mr Ward deposed was a probity application then on foot. Mr Ward also deposed that Mr Neilson believes he would have sought the information sent by Ms Andrews in the email predominantly so that he could advise Crown as to the appropriate response. So much is readily to be inferred from the content of the email, which sets out a draft response to an enquiry from a regulator. The objective dominant purpose of the communication was thus the provision of legal advice to Crown, so the email is privileged. Given its content and date, no issue of waiver arises.

128    Tab 55: CWN.538.075.6643-6645. This is an email from Mr Bitar of Crown to Mr Arbib of CPH dated 30 March 2017. It reads “FYI” and attaches a copy of an email from Mr Li of Leezhao Law Office to Ms Tegoni and Mr Neilson of Crown dated 30 March 2017 headed “opinion …” The opinion is self-evidently prepared for the dominant purpose of providing legal advice to Crown. Mr Ward deposed that Ms Manos, General Counsel of Crown, told him that Mr Arbib is an employee of CPH, and that since 1 July 2016, CPH has provided services to Crown and owes obligations of confidentiality to Crown. It follows that the confidentiality of the communication was maintained and the copy of the attached opinion remains privileged. Given its content and date, no issue of waiver arises.

129    Tab 56: CWN.538.075.5521 attaching CWN.538.075.5522, CWN.538.075.5523, CWN. 538.075.5524, CWN.538.075.5525, CWN.538.075.5526, CWN.538.075.5527, CWN.538. 075.5528, CWN.538.075.5529 and CWN.538.075.5530. The lead document is an email dated 12 June 2017 from Mr Bitar of Crown to Mr Arbib of CPH. It forwards without material comment an email from Ms Tegoni of Crown to Mr Neilson of Crown, copied to, among other people, Mr Murphy of MinterEllison. That second email attaches documents brought into existence in June 2017. Mr Ward deposed that Ms Tegoni’s email was created for the dominant purpose of providing legal advice to Crown, which is confirmed by the attachments to the email. The fact that Mr Bitar forwarded the email and the attachments to Mr Arbib does not affect the confidentiality of the communication, for the reasons given above, and the copy of the attached documents remain privileged. Given the content and date of the lead email, no issue of waiver arises.

disposition

130    I will order that those parts of the discovered documents numbered CWN.538.073.3290-3295 and CWN.538.073.3302-3307 identified in paragraphs [116] and [117] of these reasons be produced for inspection. Otherwise, Zantran’s application will be dismissed.

Associate:    

Dated:    21 July 2020