Federal Court of Australia

WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd (No 7) [2026] FCA 423

ORDERS

THE COURT ORDERS THAT:

1.    By 4:00pm on 15 April 2026 the parties are to provide the chambers of Owens J agreed proposed orders giving effect to the reasons for judgment dated 13 April 2026 or, in the absence of agreement, competing proposed orders.

2.    By 4:00pm on 28 April 2026 the parties are to provide the chambers of Owens J with an agreed set of any proposed redactions to the reasons for judgment dated 13 April 2026 necessary to give effect to Order 1 made by Owens J on 2 April 2026 pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth).

3.    Subject to further order of the Court, the unredacted reasons for judgment dated 13 April 2026 are not be published on the Federal Court of Australia website or otherwise published to any person other than the second plaintiff, the third and fourth defendants, and AVC Enterprises International Pty Ltd ACN 628 068 388 and their legal representatives.

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

REASONS FOR JUDGMENT

OWENS J:

Introduction

1    These reasons address a disputed claim of legal professional privilege over materials produced in response to a subpoena.

2    On 3 February 2026, the third, fourth, seventh and eighth defendants in these proceedings issued a subpoena to the partnership of Thomson Geer Lawyers, requiring production of the complete file for legal services provided by Thomson Geer in the period 1 January 2023 to 30 June 2025 inclusive in respect of, amongst others things, Thomson Geer matter reference 5400793, Thomson Geer matter reference 5598664, and specified topics concerning the Goldstone Private Equity Fund. (When I refer to “the defendants” in this judgment, unless the context suggests otherwise, it is to those particular defendants to whom I refer.)

3    Since November 2025, Thomson Geer and the defendants have been in a dispute as to the identity of Thomson Geer’s client for the purposes of the matters that are the subject of the subpoena. Thomson Geer says that its client in relation to matter reference 5400793 is AVC Enterprises International Pty Ltd, a private equity firm whose Managing Director, Ms Alexandra Commins, is the second plaintiff in these proceedings. The defendants, on the other hand, say that Thomson Geer’s client in relation to matter reference 5400793 is one or more of them together with Ms Commins, but is not AVCE (or, at the very least, is not AVCE alone).

4    On 11 February 2026, Thomson Geer produced to the Court materials in response to the subpoena, including, under a general objection to inspection, materials relating to matter reference 5400793. Materials relating to matter reference 5598664 were produced without objection, on the basis that there is no dispute that the client in relation to that matter is Goldstone Private Equity Pty Ltd (the first defendant in these proceedings).

5    On the same date, Registrar Lee made orders permitting AVCE and the second plaintiff to have first access to the materials relating to matter reference 5400793, labelled Packet S14. On 25 February 2026, Registrar Lee made further orders requiring Thomson Geer to categorise the documents within Packet S14 into those documents over which AVCE maintains a claim of privilege (together with an objection letter and schedule of objections), and those over which it does not, by 2 March 2026.

6    On 2 March, Thomson Geer complied with the orders of 25 February 2026, including by providing an objection schedule identifying 248 documents over which AVCE maintains a claim of privilege. These documents have been labelled by the Court as Packet S16.

7    On 11 March 2026, the defendants filed an interlocutory application seeking leave to inspect documents in Packet S14 and Packet S16.

Background

8    Judgment on questions of liability in the principal proceedings was given by Jackman J late last year: WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd [2025] FCA 622. Those proceedings involve a dispute over interests in a venture capital private equity business known as the Goldstone Private Equity Fund between, on the one hand, Ms Commins (the second plaintiff) and her corporate vehicle, WIJOAV Services Pty Ltd (the first plaintiff), and, on the other hand, Mr James Angelis (the third defendant) and his corporate vehicle, Angel Holdco Pty Ltd (the fourth defendant). The plaintiffs alleged, and Jackman J found, that the affairs of certain entities comprising the Fund had been carried on oppressively. His Honour has ordered that Angel Holdco, or Mr Angelis, purchase Ms Commins’ shares in the relevant entities.

9    What remains for determination in the primary proceedings is the price at which that buy-out is to occur, together with the quantification of any pecuniary remedies to which the plaintiffs may be entitled. A hearing to determine those issues is presently listed before Jackman J for 10 days commencing on 11 May 2026. It was in preparation for that hearing that the defendants issued the subpoena to Thomson Geer.

The ISSUES AND THE Competing Positions

10    At the heart of the parties’ dispute lies a deceptively simple question: who was Thomson Geer’s client in respect of particular work undertaken by that firm? That is to say, the core of the defendants’ challenge to AVCE’s assertion of privilege against them is not that the relevant communications were not made for the dominant purpose of a client seeking, or being provided with, legal advice. Rather, their basic point is that AVCE was not a client of Thomson Geer at all or, to the extent that it was, that it was a client jointly with Mr Angelis. Correspondingly, it is AVCE’s position that Mr Angelis has not proved that he was a client in respect of the relevant communications (which it necessarily contends were made for the dominant purpose of seeking or providing legal advice).

11    In saying that, I do not overlook the fact that the defendants said that they do not concede that AVCE has established on the evidence the existence of the necessary dominant purpose, and I will need to determine that question. But they did not advance any positive submission that no such purpose existed.

12    Furthermore, to the extent that I accept that AVCE was the sole privilege holder with respect to the documents in question, the defendants have submitted that privilege has been waived.

13    In any event, returning to the fundamental issue, the position advanced by AVCE before me was that Thomson Geer was initially retained by and on behalf of it alone, and then later on, once Goldstone Private Equity was incorporated, that there were also separate retainers of Thomson Geer by that company, unrelated to the documents in issue. It was submitted that, except to the extent that Thomson Geer did work for Goldstone Private Equity, its client was only ever AVCE.

14    Ms Commins swore two affidavits on the application. Her evidence was that:

(a)    In May 2023 she called Mr Hodson to “seek to engage Thomson Geer on behalf of AVCE” for the purpose of “obtaining legal advice in relation to the establishment and registration of a private equity fund, which ultimately became known as Goldstone Private Equity Fund and the preparation of associated constituent documents”.

(b)    While Mr Angelis was included on various communications between Ms Commins and Mr Hodson, that was because he “was the cornerstone investor” and accordingly she “disclosed particular communications to him as a matter of transparency”.

(c)    Although the invoice for the work done in relation to that retainer was addressed to Goldstone Private Equity, and ultimately paid by Mr Angelis, that was because “Mr Angelis had offered to allocate payment to the fund establishment costs. However, the advice sought and the advice provided … was for and on behalf of AVCE”.

(d)    Following the incorporation and registration of Goldstone Private Equity, Thomson Geer was also retained by that company for various purposes, but those matters were separate to the ones in which AVCE was the client.

(e)    Even after the incorporation of Goldstone Private Equity, and its retainer of Thomson Geer, Ms Commins “continued to seek and receive legal advice from Thomson Geer on behalf of AVCE from time to time in relation to matters generally concerning the implementation and operation” of the Fund’s constituent documents.

15    The partner at Thomson Geer who was responsible for all of the relevant work was Mr George Hodson, and he swore an affidavit on this application. Insofar as his evidence was concerned:

(a)    He said that he was contacted by Ms Commins in early April 2023, and provided a fee estimate on 3 May 2023. He instructed his administrative assistant to open a file in connection with the matter on 25 May 2023. He said that he “identified AVCE as the client because I knew from prior engagements unrelated to the Goldstone Private Equity Fund that AVCE was the company utilised by Ms Commins through which she undertook investments.”

(b)    Although it was his usual practice to do so, he did not send a letter of engagement to AVCE in connection with the matter.

(c)    He considered AVCE to be his client, and he took instructions from Ms Commins. He recalls that the reason he included Mr Angelis in some communications that he sent was “because Ms Commins asked that he be involved in the process because he was to be the cornerstone investor” at least “prior to his engagement of his own lawyers”.

16    Overall, therefore, it may be observed that, save insofar as a subsequent separate retainer with Goldstone Private Equity was concerned, AVCE was contending that Thomson Geer had only ever been retained by it alone.

17    Mr Angelis, and the defendants associated with him, on the other hand denied that AVCE was Thomson Geer’s client (submitting instead, that it was Ms Commins herself). Whether or not Thomson Geer’s client on Ms Commins’ side of the ledger was Ms Commins herself, or AVCE, however, they contended that Mr Angelis was also a client of Thomson Geer in respect of the relevant work (on occasion there was, perhaps, a faint suggestion that Mr Angelis was Thomson Geer’s only client, but I did not understand that submission to be seriously pressed and, to the extent it was, I reject it.). Although in their written submissions, the defendants said that “one or more of the defendants”, and “Mr Angelis and/or Angel HoldCo”, were joint privilege holders, in oral submissions it was confirmed that only Mr Angelis was said to have been a client. That must be right: there was no evidence that, at any time, Mr Angelis intended to retain Thomson Geer on behalf of Angel HoldCo, or that he said or implied anything to that effect to Mr Hodson.

18    Those defendants relied on three affidavits sworn by their solicitor, Mr Thomas Storer of Ashurst. Mr Storer’s evidence was limited, on the whole, however, to putting particular documents into evidence (and identifying portions of them that, I infer, the defendants regarded as particularly significant). For the most part, in other words, the defendants relied upon documents rather than testimonial evidence in support of their position.

Thomson Geer’s Clients

19    For the reasons that follow, I am unable to accept AVCE’s contention that, save for separate retainers by Goldstone Private Equity, it was Thomson Geer’s only client. The contemporaneous written communications demonstrate clearly and unambiguously that the recollection, or understanding, of Ms Commins and Mr Hodson cannot be regarded as objectively correct. Those contemporaneous written communications must be regarded as providing a more reliable guide to events than the high-level recollections of witnesses some years later. While I do accept that, for some discrete purposes, AVCE retained Thomson Geer to act for it alone, the proposition that that was the case in all respects at all times is just not plausible.

20    A retainer does not need to be express, and may be implied from contemporaneous documentation: Trajkovski v Simpson [2019] NSWCA 52 at [13] (Basten JA and Sackville AJA) and at [100] (Brereton JA); Salmon v Albarran (2023) 414 ALR 36; [2023] NSWSC 1238 at [273] (Nixon J). In particular, as was explained in Dal Pont, Lawyers’ Professional Responsibility (4th ed, 2010) at [3.50], cited with approval in Watson v Ebsworth & Ebsworth (a firm) (2010) 31 VR 123; [2010] VSCA 335 at [111] (Neave, Mandie and Hansen JJA) (in turn cited in Salmon at [274]):

Proof of an implied retainer rests on proof of facts and circumstances sufficient to establish a tacit agreement to provide legal services. Its existence is determined by inference from objective facts, not merely by the lawyer’s belief as to which clients he or she was acting for. The reasonable expectations of the alleged client carry significant weight here, as the lawyer may always take steps to dissuade any person from a belief that the lawyer acts for that person.

21    In the circumstances of this case, the following observations in Pegrum v Fatharly (1996) 14 WAR 92 at 102 (Anderson J, Kennedy and Ipp JJ agreeing) (followed in Salmon at [275]) are particularly apposite:

When both parties to a transaction consult the same solicitor and together give him the information needed to prepare the documents in which their respective rights and obligations are to be set out and the solicitor accepts responsibility to prepare the documents without any indication that he cannot fully discharge his professional duties to them both there is a strong bias towards finding that the solicitor tacitly agrees to act for both parties and to undertake the usual professional responsibilities to them both … In the absence of a clear indication by the solicitor that the solicitor does not accept one of the parties as his client it is natural in such a case to assume both are relying on him for professional advice and assistance. This follows from the mere fact that both have consulted him. There may be other circumstances which show that there is no reliance by one or other of the parties on the solicitor, but, if not, reliance should be inferred as a fact.

22    Before I turn to explain why, in accordance with those principles, the contemporaneous documents here make plain that Mr Angelis was a client of Thomson Geer, I will clear out of the way another issue: whether AVCE, as opposed to Ms Commins personally, was the client of Thomson Geer on her side of the ledger. For the following reasons, I am satisfied that it was AVCE (and not Ms Commins) that was a client of Thomson Geer:

(a)    First, Ms Commins’ evidence was that she did not retain Thomson Geer to act on her own behalf, but rather to act on behalf of AVCE. There was no dispute that she had authority to do that on behalf of AVCE. She was the sole director of the company. She had previously used Thomson Geer to provide advice to that company in relation to other matters. Although she did not give evidence that (at least initially) she specifically identified to Mr Hodson that she was retaining him on behalf of AVCE, she identified the proposed investment as taking place in “the AVC fund”, and Mr Hodson’s evidence was that he understood that AVCE would be the client because he “knew from prior engagements unrelated to the Goldstone Private Equity Fund that AVCE was the company utilised by Ms Commins through which she undertook investments”. I thus do not think that it is necessary to descend to potentially interesting questions about whether the retainer was effected by Ms Commins acting as agent for an undisclosed principal. Both solicitor and client had a common understanding as to on whose behalf Thomson Geer was being retained.

(b)    Secondly, the fact that (as the defendants emphasised) AVCE was not ultimately used by Ms Commins as the vehicle through which she would participate in the Fund does not seem to me to matter. The fact that new companies (including WIJOAV and Goldstone Private Equity) were ultimately incorporated as vehicles through which Ms Commins would invest in the Fund, or through which it would be constituted, is not inconsistent with the client through which legal advice was sought and obtained being another of Ms Commins’ companies. It is clear that AVCE was the particular company of Ms Commins’ through which she chose to explore the options for establishing an investment of the kind she had in mind. The fact that AVCE did not, itself, ultimately participate in the structure that was decided does not mean, as the defendants submitted, that it had “no interest” in the legal services provided by Thomson Geer.

23    But was Mr Angelis also a client?

24    In about early April 2023, Ms Commins and Mr Angelis had decided that they would like to establish a new investment fund in which Mr Angelis would be the “cornerstone” investor. A critical question with which they were presented was which particular legal structure would be best suited to what they wanted to achieve. At least at one level, they appear to have regarded this as a common problem; that is, whatever other dimensions to the issue might exist, they had a common interest in identifying a mutually beneficial structure, and in having the necessary work to establish the fund performed. To that end, they immediately set about trying to determine the identity of a lawyer who could advise and act for them both (or whichever corporate vehicles they chose to act through) concerning the venture they had in contemplation.

25    On 5 April 2023, following discussions that he had with some of his contacts, Mr Angelis informed Ms Commins in an email that Arnold Bloch Leibler “appear to be the better starting point for advice”. He went on to say that “[s]ubject to your [i.e., Ms Commins’] agreement” he “would like them to prepare a [REDACTED] paper for our [i.e., Mr Angelis’ and Ms Commins’] joint consideration”. He said that those solicitors had committed to having that paper “for us” by the following week. It is clear that what Mr Angelis had in mind was a joint retainer.

26    Ms Commins replied that same day, saying: “That sounds good, I look forward to their advice.” She said that while she agreed that Arnold Bloch Leibler was the better starting point, she had also spoken to Mr Hodson at Thomson Geer who was going to [REDACTED] [REDACTED] [REDACTED] [REDACTED]. She immediately stated, however, that “there is no obligation however for us to use him from there”. The clear implication was that she had approached Thomson Geer as an option to be considered for the provision of joint advice to both herself and Mr Angelis (or their interests).

27    On 6 April 2023, Mr Hodson emailed Ms Commins [REDACTED] [REDACTED] [REDACTED] [REDACTED]. Ms Commins forwarded that email on to Mr Angelis, with the following message:

As mentioned, the below was just received by George Hodson of Thomson Geer.

Again, no obligation to use George, [REDACTED] [REDACTED] [REDACTED] [REDACTED]. If a relationship exists with ABL, let’s go with them.

28    Later that same day, Mr Angelis replied, saying:

[REDACTED] [REDACTED] [REDACTED] [REDACTED]. Why don’t we wait for ABL’s paper and we can jointly decide who takes it forward.

29    Ms Commins then responded, saying:

That sounds good Jim. Let’s do that.

30    Once more, it is plain that Ms Commins and Mr Angelis were endeavouring to agree on a lawyer jointly to represent their interests in relation to the establishment of the proposed fund.

31    Ms Commins replied to Mr Hodson’s email of 6 April 2023 on 28 April 2023. She referred to [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]. She raised [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] and said:

[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]

32    Mr Hodson replied, commenting on the issues that had been raised, and saying he was [REDACTED] [REDACTED] [REDACTED] [REDACTED]. Ms Commins forwarded that email to Mr Angelis with a message in which she said, amongst other things, that [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]. A video-conference was arranged for 11:00am on Monday 1 May 2023.

33    Once again, it may be observed that Ms Commins and Mr Angelis were working together to identify the lawyer that they would retain to advise them both in relation to [REDACTED] [REDACTED] the proposed fund.

34    On Saturday 29 April 2023, the day after Ms Commins and Mr Angelis had met with Arnold Bloch Leibler, they received an email from that firm, which began:

[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]

35    The next day, Sunday 30 April 2023, which was the day before the proposed video-conference with Thomson Geer, Ms Commins forwarded the email from Arnold Bloch Leibler to Mr Hodson, saying:

[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]

36    Also on Sunday 30 April 2023, Ms Commins emailed an agenda for the upcoming video-conference to Mr Angelis and Mr Hodson:

[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]

37    Again, it is plain that Ms Commins and Mr Angelis regarded the endeavour of choosing between Thomson Geer and Arnold Bloch Leibler as one of jointly selecting a single lawyer to provide advice in relation to their proposed investment fund.

38    The proposed meeting was ultimately postponed, taking place on Tuesday 2 May 2023. The following day Mr Hodson sent an email to Ms Commins and Mr Angelis, outlining [REDACTED] [REDACTED] [REDACTED] [REDACTED]. That was plainly advice directed to both parties jointly. The email went on to say:

[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]

39    That disclosure to both parties reinforces that the parties’ common intention was that Thomson Geer would be retained on behalf of them both. That conclusion is reinforced by the terms of the email that Ms Commins then sent to Mr Angelis (referring to Mr Hodson’s email):

Let me know if you are happy with the content below and if you are, we can ask George to get started.

… If you agree, should we say we would cover half of this each (circa $25K each)? Otherwise, am happy to cover the $55K, that’s no problem.

40    Mr Angelis replied, saying that he was “happy to proceed”. Insofar as the payment of legal fees was concerned, he suggested that they “treat it as establishment costs whereby I’ll pay for it now and get reimbursed from future profits of the fund”. Ms Commins replied:

Yes that is perfect. Thanks very much Jim. Okay I’ll give George the green light and make sure he updates us before any revisions to the costs are made.

41    By this point, therefore, Ms Commins and Mr Angelis had agreed on the lawyer who they would retain to advise and act for them jointly in relation to the establishment of the fund, and agreed between themselves as to how the likely fees would be paid. Ms Commins wrote to Mr Hodson to confirm his retainer:

[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]

42    It is to be noted that Ms Commins told Mr Hodson that [REDACTED] [REDACTED] [REDACTED] [REDACTED]. There is nothing in the history leading to that point that suggests that anything other than a joint retainer of whatever law firm Ms Commins and Mr Angelis agreed upon was ever in contemplation. Ultimately, the law firm that they agreed upon was Thomson Geer.

43    That is not to say, of course, that both Ms Commins and Mr Angelis did not appreciate that they may also have their own individual interests in relation to the proposed fund that would require separate advice. Indeed, in the email to which I have just referred, after Ms Commins had informed Mr Hodson that [REDACTED] [REDACTED], she went on to say this:

[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]

44    That statement seems to me to confirm that the primary retainer of Thomson Geer was a joint one. Ms Commins was distinguishing the general retainer from a specific “separate engagement” in relation to a particular subject matter. In relation to that specific topic [REDACTED] [REDACTED] [REDACTED], it was evidently proposed that Thomson Geer would act for Ms Commins (or her interests) alone, while Mr Angelis (or his interests) would be represented by Arnold Bloch Leibler. Whatever issues might arise in relation to conflicts in that respect are not presently relevant; the question is not whether Thomson Geer should have accepted all the retainers that it did. What that portion of Ms Commins’ email plainly demonstrates is that the individual representation of her and Mr Angelis’ interests was something separate from the general retainer of Thomson Geer in relation to the establishment of the fund that had just been effected.

45    It follows that the fact that both Ms Commins and Mr Angelis might have had separate representation in relation to specific topics, or even in relation to the establishment of the fund generally, does not undermine, and is not inconsistent with, the conclusion that the retainer of Thomson Geer established by the history of communications to which I have referred was a retainer by both Ms Commins and Mr Angelis (or their respective corporate interests).

46    In any event, Mr Hodson replied to Ms Commins’ email, saying:

[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]

47    Reinforcing the joint nature of the retainer, Ms Commins replied to that saying that [REDACTED] [REDACTED] [REDACTED] [REDACTED].

48    Ms Commins, Mr Angelis and Mr Hodson then set to work. Mr Hodson requested information that he required from both parties, and they provided information to him. For example, on 9 May 2023, Ms Commins emailed Mr Hodson, copying Mr Angelis, saying:

[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]

49    [REDACTED] [REDACTED] followed on 14 May 2023, in an email sent by Ms Commins on behalf of both herself and Mr Angelis:

[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]

50    Mr Hodson replied to both Ms Commins and Mr Angelis, [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]. On 18 May 2023, Mr Hodson emailed both Ms Commins and Mr Angelis saying that [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED].

51    Other communications providing instructions on behalf of Ms Commins and Mr Angelis to Mr Hodson, and advice or requests for further information from Mr Hodson to Ms Commins and Mr Angelis, followed. Overall, the conclusion that Thomson Geer was retained on behalf of both Ms Commins and Mr Angelis (or their respective corporate interests) was inescapable. Equally, though, it is important to note that it was Ms Commins who acted as the principal interface between Thomson Geer, on the one hand, and Ms Commins and Mr Angelis, on the other.

52    Because Ms Commins and Thomson Geer had contemplated the possibility of “separate engagements” in relation to specific matters, it was perhaps inevitable that the dividing line between communications in relation to the general retainer, and those specific separate engagements, might not always be clearly drawn. I consider that such instances do not, however, undermine the overall force of the clear conclusion to which the documents otherwise point.

53    For example, on 25 May 2023, Mr Hodson sent an email to Ms Commins (but did not copy in Mr Angelis) to which he attached both [REDACTED] [REDACTED] and an [REDACTED] [REDACTED] [REDACTED]. [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]. Ms Commins immediately forwarded that email on to Mr Angelis.

54    Also on 25 May 2023, Mr Hodson sent an email within Thomson Geer asking for a new matter to be established, with AVC Enterprises International Pty Ltd as the client (and with the matter name being “Goldstone Private Equity Fund”, and the billing contact being Ms Commins).

55    While those facts, taken together, do demonstrate that Thomson Geer was performing some work for Ms Commins (or her corporate vehicle) alone, I do not think that they indicate that the general work performed by Thomson Geer in relation to the establishment of the fund was not being performed for both Ms Commins and Mr Angelis. The fact that Mr Hodson may not have rigidly observed the line that divided the different matters does not deny, and subsequent interactions between the parties confirm, that fact.

56    It is not necessary to recount exhaustively the interactions between Mr Hodson, Ms Commins and Mr Angelis after 25 May 2023. It is enough to demonstrate that, in general, things continued in much the same way as they had previously, with both Ms Commins and Mr Angelis communicating jointly with Mr Hodson (and him replying to them) for the purpose of [REDACTED] [REDACTED] [REDACTED] [REDACTED].

57    To take one example, on 29 May 2023, [REDACTED] [REDACTED] [REDACTED] [REDACTED], Ms Commins emailed Mr Hodson, copying Mr Angelis, in the following terms:

[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]

58    The focus, in other words, returned immediately to the broader question of [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]. The day after the call referred to in that email, Mr Hodson emailed both Ms Commins and Mr Angelis [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]. Further calls between Ms Commins, Mr Angelis and Mr Hodson ensued to [REDACTED] [REDACTED] [REDACTED]. After that, Mr Hodson continued to communicate with both Ms Commins and Mr Angelis about the establishment of the fund, by both email and in group calls.

59    As the work on the documentation continued, Ms Commins emailed Mr Hodson (copying Mr Angelis) on 22 June 2023 [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]. Overall, the irresistible inference is that Mr Hodson was working on behalf of both Ms Commins and Mr Angelis to prepare the necessary documentation.

60    That inference is strengthened by the terms of Ms Commins’ reply to Mr Hodson’s email of 23 June 2023. The following day, 24 June 2023, she wrote (in an email copied to Mr Angelis):

[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]

61    The effect of Ms Commins’ email appears, once again, to have been to identify the subject matter of a particular “separate engagement” that she wished Thomson Geer to carry out for her alone. [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]. [REDACTED] [REDACTED], that issue would be taken up by her with Thomson Geer by way of separate email correspondence. Once again, the potential for conflicts in this scenario does not need to be explored; the question is what happened, not whether it should have.

62    By 29 June 2023, Mr Angelis had retained his own lawyer to represent his individual interests. He emailed Mr Hodson, copying Mr Mark Fitzgerald of Meridian Lawyers. He said:

This email is to introduce Mark Fitzgerald from Meridian Lawyers. Mark has been appointed to represent the Angelis Family Office interests in the Goldstone Private Equity Venture.

63    Mr Hodson replied:

Thanks Jim and good to meet you, Mark. Look forward to working with you.

64    Much like the “separate engagements” of Thomson Geer by Ms Commins, that fact does not weaken the conclusion that Thomson Geer was retained by Ms Commins and Mr Angelis jointly. That is to say, the fact that Mr Angelis had his own lawyers focussing solely on his own interests, is not inconsistent with the fact that he and Ms Commins jointly retained Thomson Geer to advance their joint project.

65    In any event, following that introduction, there continued to be communications between Ms Commins, Mr Angelis and Mr Hodson that did not include Mr Fitzgerald, including ones where Mr Angelis appeared to provide instructions to Mr Hodson.

66    For example, on 3 July 2023, Ms Commins emailed Mr Hodson, copying Mr Angelis, saying:

[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]

67    An email chain concerning particular issues, objectives, and documents ensued. On 5 July 2023, Mr Angelis emailed Mr Hodson and Ms Commins:

[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]

68    In another email chain between Mr Hodson, Ms Commins and Mr Angelis, on 8 July 2023, Mr Angelis asked if Mr Hodson could [REDACTED] [REDACTED] [REDACTED], to which Mr Hodson said that he had [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED].

69    On 17 July 2023, Ms Commins emailed Mr Hodson, copying Mr Angelis, saying:

[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]

70    While I accept that none of this would be determinative on its own, considered in the context of the evidence as a whole, it is clear that both Mr Angelis and Ms Commins were directing the work of Thomson Geer in relation to the establishment of the fund generally.

71    I also do not overlook the fact that there were other communications between Mr Hodson, Ms Commins, Mr Angelis, and Mr Fitzgerald, in which draft amendments were proposed by both lawyers. Considered on their own, those exchanges could be consistent both with Mr Hodson acting for Ms Commins, and Mr Fitzgerald acting for Mr Angelis, or with Mr Hodson acting for the joint enterprise represented by Ms Commins and Mr Angelis, and Mr Fitzgerald acting for Mr Angelis’ individual interests. Once again, considered in the context of the evidence as a whole, I find the latter conclusion to be more plausible.

72    The distinction between work in relation to the fund generally, and that which might implicate the individual interests of either Ms Commins or Mr Angelis, appears to have been recognised by Mr Hodson in other communications. For example, on 3 January 2024, Mr Hodson emailed Ms Commins and Mr Angelis, with [REDACTED] [REDACTED]. He went on to say this:

[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]

73    That statement appears to recognise Mr Angelis’ role as a client insofar as Thomson Geer’s work in relation to “the fund” generally was concerned.

74    The Fund achieved registration as a Venture Capital Limited Partnership on 8 January 2024.

75    On 23 January 2024, Mr Hodson established two new client files with Goldstone Private Equity Pty Ltd as the client. From this point onwards, it was uncontroversial that Thomson Geer did work for Goldstone Private Equity and the Fund itself. AVCE submitted that no claim for privilege had been maintained for any document that related to Thomson Geer’s work where those entities were the client. All documents over which a claim for privilege had been made from that point onwards were said to be in relation to Thomson Geer’s work for AVCE as an individual client.

76    On 31 January 2024, Thomson Geer sent an invoice for the work it had performed addressed to “Goldstone Private Equity Pty Ltd”. It identified two file numbers (5400793 and 5598664) as being the files in respect of which the charged work was performed. The first was described as “Establishment of Goldstone Private Equity Fund”, and the second as “Goldstone – GP formation”. The schedule of time spent on different tasks was, however, not divided by reference to either file. The first entry was for work done on 2 May 2023. The last entry was for 3 January 2024. The narrative of charges has some entries that appear to relate to work that was contemplated as being solely for Ms Commins benefit (e.g., on 24 May 2023 the work done was described as “[p]reparing side letter”). Most of the work appears to relate to the general work of establishing the Fund.

77    It is hard to make too much of this invoice. It is consistent with what appears to have been a fairly relaxed approach by Thomson Geer to identifying with precision precisely who its client was, in respect of what work.

78    From that point on, as foreshadowed above, there continued to be work performed by Thomson Geer for the Fund, at the direction of (amongst others) Ms Commins and Mr Angelis. Some of that work, no doubt, was pursuant to Thomson Geer’s retainer to act on behalf of Goldstone Private Equity and the Fund itself. But the terms in which claims for privilege have been made for documents created in the period after 17 January 2024 reveal that work was also done in relation to (as opposed to for) the Fund. As Ms Commins put it in her evidence:

Following the incorporation and registration of Goldstone [Private Equity], I continued to seek and receive legal advice from Thomson Geer on behalf of AVCE from time to time in relation to matters generally concerning the implementation and operation of the Fund Documents, including the preparation of necessary amendments, insofar as they concerned my interests. This was a continuation of the initial engagement as described in the preceding paragraphs.

79    It is apparent that, in light of the findings I have made, the evidence there given by Ms Commins was given on a false premise. The “initial engagement” of Thomson Geer was by both AVCE and Mr Angelis. There is nothing in the evidence that suggests that that general retainer was terminated.

80    For the above reasons, I am satisfied that Thomson Geer was retained to act for AVCE and Mr Angelis in relation to the establishment and operation of the Fund.

ISSUE ONE: the dominant purpose for which the documents were created

81    I observed earlier that the defendants submitted that AVCE had not established on the evidence that the documents over which privilege has been claimed were prepared for the dominant purpose of AVCE seeking, or being provided with, legal advice. That submission was directed to the sufficiency of the evidence relied upon, and did not extend to the making of any submission that the asserted purpose did not in fact exist.

82    Because the claim of legal professional privilege relates to pre-trial disclosure, the parties are agreed that the question is to be determined by reference to the common law. Authority for that proposition, as well as a convenient summary of the applicable legal principles (which I do not repeat here), may be found, for example, in Singtel Optus Pty Ltd v Robertson (2024) 425 ALR 1; [2024] FCAFC 58 at [23]-[32], [61]-[62] (Murphy, Anderson and Neskovcin JJ).

83    In her evidence, Ms Commins explained the purpose for which the documents over which privilege was claimed were created (including by reference to a schedule in which those documents were grouped into various categories). In broad terms, that purpose was identified as being the seeking, and provision, of advice in relation to the establishment of the Fund and the implementation and operation of its constituent documents.

84    I am satisfied that the evidence is sufficient to demonstrate the necessary dominant purpose for which the documents were created. That does not involve giving decisive weight to the assertions of Ms Commins: cf. Medibank Private Limited v McClure [2026] FCAFC 38 at [23]-[26] (Lee J). Rather, that conclusion is drawn from the totality of the circumstances in which the documents were created.

85    As I have already indicated, the real issue in dispute was whether the documents were created for the dominant purpose of AVCE alone seeking, or being provided with, legal advice. I turn to consider that question next, in light of the findings I have made above.

ISSUE TWO: is the privilege AVCE’s alone?

86    For the reasons given above, I have concluded that Thomson Geer was retained:

(a)    by AVCE and Mr Angelis jointly, to advise and act for them in relation to the establishment of the Fund, and the implementation, operation and amendment of its constituent documents;

(b)    by AVCE individually in respect of particular, specific, matters; and

(c)    by Goldstone Private Equity in respect of its own operations.

87    The first and second of those conclusions are inconsistent with the way in which AVCE advanced its claim of privilege. That is to say, as I have already observed, AVCE contended before me that, apart from the separate representation of Goldstone Private Equity, there was only one client for whom Thomson Geer acted in relation to the Fund, and it made no attempt to prove that some or all of the documents over which a claim for privilege has been made related to a specific, separate, engagement with Thomson Geer in respect of which it was the sole client. The result is that there is no evidence capable of sustaining a claim for privilege on a narrower basis that might have been available.

88    Moreover, because the evidence of both Ms Commins and Mr Hodson was given on a premise that I have found to be flawed, it is not possible to read statements that might, on their face, suggest that the claim for privilege had been made solely in respect of communications concerning the individual interests of AVCE as proving that the claim is limited to the specific engagements to which I have referred.

89    To take as an example the passage from Ms Commins’ evidence to which I have most recently referred, it is true that she said the engagement of Thomson Geer in respect of which she claimed privilege concerned various matters “insofar as they concerned my interests”. But, for one thing, she immediately made clear that the retainer of which she was speaking was “a continuation of the initial engagement” that I have found to have been by both AVCE and Mr Angelis. And, for another, the joint retainer that I have found to have existed is not inconsistent with its subject matter concerning AVCE’s interests in any event.

90    So, while Ms Commins’ (and Mr Hodson’s) evidence can be accepted insofar as it demonstrates that the documents in question were prepared for the dominant purpose of seeking, or providing, legal advice, it cannot be accepted as establishing that they were prepared for the dominant purpose of AVCE alone seeking, or being provided with, that advice. The evidence as a whole establishes that the legal advice in question was for both AVCE and Mr Angelis.

91    Nor do I think that any inference can be drawn from the mere fact that Mr Angelis was not copied in on documents to the extent that they are emails, or to the extent that he was not a party to phone calls or meetings recorded in file notes. It is clear that Ms Commins was the person who, more often than not, spoke or wrote to Mr Hodson. I do not think that the evidence permits the drawing of any secure inference that there was an invariable practice of including Mr Angelis in communications relating to the general retainer, and excluding him from communications relating to AVCE’s specific engagements. It would have been possible for Ms Commins and Mr Hodson to have given such evidence but, once more, because they proceeded on the basis that there was not a retainer by Mr Angelis, they did not do so.

92    AVCE submitted in argument that it would be appropriate for me to inspect the 248 documents over which privilege has been claimed, to determine for myself whether they related to a separate retainer by AVCE alone. I do not agree that such a course is appropriate, or even available.

93    In Hancock v Rinehart (Privilege) [2016] NSWSC 12, Brereton J observed that a court’s “discretionary power to require production in order to enable inspection for the purpose of adjudicating the claim … exists to enable a claim for privilege to be scrutinised, not to enable it to be proved” (at [35]). His Honour explained the rationale underpinning that statement as follows (at [32]-[34]):

While the documents themselves may well illuminate the purpose for which they were created, to allow them to be used as evidence – let alone the sole evidence – in support of a claim for privilege, would be contrary to well-established practice. It would also be grossly unfair to the other party: if the only evidence of purpose is to be inferred from the document itself, the party seeking access is deprived of any opportunity to test the asserted purpose, which would defeat rather than promote the intent of enabling claims to be tested and scrutinised. As Giles J observed in Woollahra Municipal Council v Westpac Banking Corporation [(1994) 33 NSWLR 529, 541-2]:

The court should be able to proceed on evidence describing the documents and the circumstances of their creation, and should not unnecessarily pay regard to material which can not be known to the party challenging the claim to privilege.

…

[I]n my view, such an approach is not merely unsatisfactory, but impermissible in principle. Whether the creature of judicial decision or, as I think more properly, rules of court, the court’s power to inspect documents – and to require their production for that limited purpose – was a response to the potential injustice in treating the claimant’s oath as conclusive. The power was not intended to detract from the requirement that a person claiming privilege prove, by admissible evidence, the grounds of the claim. While it is clear that the court may now require a document the subject of a claim of privilege to be produced so that it may inspect it for the purpose of ruling on the claim, that is quite a different notion from permitting a person claiming privilege to sustain the claim by adducing no testimonial evidence but asking the court to inspect the documents.

94    Those statements have been approved in this Court (by way of single example only, see Martin v Norton Rose Fulbright Australia [2019] FCA 1101 at [55]-[58] (White J)).

95    Any inspection by me would not be for the purpose of scrutinising a claim that otherwise appeared to have been established on the evidence. There is no evidence that the documents in question relate to some specific engagement by AVCE alone. It follows that the fundamental purpose of the inspection would be for me to form a view about whether individual documents might, on their face, disclose that they are referable to one retainer rather than another, such that I should recognise a valid claim as having been established.

96    Quite apart from that fundamental problem, however, I consider it would in any event be most unsafe for me to even attempt such a task. If nothing else, the evidence does not clearly establish the existence, nature and scope of any specific retainers that might have been effected from time to time. There are desultory references in the emails, for example, to AVCE being provided with individual advice in relation to topics such as [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]. But AVCE made no attempt to prove whether such retainers were in fact entered into, nor, if they were, precisely what was included within their scope, let alone to identify the universe of such separate engagements. Even if there was greater clarity concerning the scope of those retainers, I apprehend that there could be considerable danger in me, who does not have a detailed understanding of the total universe of relevant documents, trying to ascertain whether a particular document in fact related to the retainer in question. Put another way, there is a significant risk that, in performing any review, I would not have a sufficient understanding to know what I was looking for in the first place.

97    It follows that I am satisfied that insofar as the evidence goes, it demonstrates that the documents over which privilege has been claimed were created for the dominant purpose of AVCE and Mr Angelis seeking, or being provided with, legal advice.

98    While I am satisfied that additional, separate, retainers of Thomson Geer by AVCE alone were at least contemplated, if not entered into, I am not satisfied that it has been established on the evidence that any of the documents over which privilege was claimed were created pursuant to such a retainer.

99    In relation to documents created in relation to the separate retainer of Thomson Geer by Goldstone Private Equity, no claim for privilege has been made.

100    Before leaving this topic, I should address a particular submission advanced by AVCE. It was said that the absence of affidavit evidence from Mr Angelis was fatal to any claim that joint privilege existed in the documents. Without such evidence, it was submitted, it could not be found that the documents were created for the dominant purpose of Mr Angelis seeking, or being provided with, legal advice.

101    The submission cannot succeed for several reasons.

102    First, the question of whether or not there existed a retainer between Thomson Geer and Mr Angelis does not depend on the subjective purpose for which particular communications were made. The existence of such a retainer may be proved by objective evidence, such as the documentary record to which I have made extensive reference. While it is possible that testimonial evidence from Mr Angelis could have been relevant to that issue, on no view was it required.

103    Secondly, once it was established that there was a joint retainer of Thomson Geer by AVCE and Mr Angelis, the evidence of Ms Commins concerning the purpose for which the documents were brought into existence was equally available to prove the privileged character of the documents in relation to Mr Angelis. Her evidence established that the documents were brought into existence for the dominant purpose of legal advice being sought, and obtained, pursuant to the retainer to which AVCE was a party. The fact that she, wrongly, believed that Mr Angelis was not also a party to that retainer does not mean that it was proved only that the documents were created for the dominant purpose of AVCE seeking or obtaining legal advice.

104    Thirdly, in any event, I am satisfied that the evidence demonstrates that the documents were created for the dominant purpose of both AVCE and Mr Angelis seeking or obtaining legal advice. It is not necessary that Mr Angelis depose to that fact, insofar as it concerns him, by direct, testimonial, evidence. It is an inference that I would draw from the totality of the evidence, including the fact of the joint retainer, and its subject matter and scope, and the context in which the communications in question took place. Indeed, in circumstances where Ms Commins might have, but did not, seek to prove that particular documents were created in relation to her alone, it is difficult to conceive of a purpose other than the seeking and obtaining of legal advice by AVCE and Mr Angelis for which the documents might have been created.

105    Such a conclusion does not involve any departure from Brereton J’s statement of principle in Hancock at [7], which has been cited approvingly many times, including by the Full Court of this Court in Singtel at [61]:

To sustain a claim of privilege, the claimant must not merely assert it; but must prove the facts that establish that it is properly made. Thus a mere sworn assertion that the documents are privileged does not suffice, because it is an inadmissible assertion of law; the claimant must set out the facts from which the court can see that the assertion is rightly made, or in other words “expose … facts from which the [court] would have been able to make an informed decision as to whether the claim was supportable”. The evidence must reveal the relevant characteristics of each document in respect of which privilege is claimed, and must do so by admissible direct evidence, not hearsay.

(citations omitted)

106    The reference to the need for “admissible direct evidence, not hearsay” needs to be understood in context. The authority cited for that proposition was the judgment of Brennan CJ in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, at 513-4, which involved a particular issue concerning the way in which, and the evidence upon which, courts should approach the proof of frauds said to vitiate the existence of privilege. But there is no general rule that no hearsay evidence may be relied upon in establishing the existence of privilege. The question is always the sufficiency of the evidence to establish the claim. Because issues concerning privilege frequently arise in an interlocutory context, the hearsay rule will generally not apply: Evidence Act 1995 (Cth), section 75. Whether such evidence is sufficient will depend, to state the obvious, on the particular nature of the evidence relied upon in the context of the particular case. See generally, by way of example, McKenzie v Cash Converters International Ltd [2017] FCA 1564 at [110] (Markovic J) and Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232 at [252]-[255] (Wigney J). See also Medibank at [22]-[26] (Lee J).

ISSUE THREE: Waiver?

107    In light of the conclusions I have reached about the parties to the retainer of Thomson Geer, and the resulting joint privilege, it is not necessary for me to consider the defendants’ arguments concerning waiver.

COnclusion

108    For the foregoing reasons, I am satisfied that the documents to which the defendants have sought access are privileged, and that that privilege is held jointly by AVCE and Mr Angelis.

109    It follows that AVCE may not assert privilege against Mr Angelis, but nor may Mr Angelis disclose those documents to any other person without AVCE’s consent. Any order for access to the documents in question should thus be limited to Mr Angelis alone.

110    I will direct the parties to confer and provide draft orders, agreed if possible, to give effect to my conclusions, as well as in relation to costs, within 48 hours. I will also direct the parties to confer, identify and provide to my chambers any proposed redactions to this judgment prior to its publication by 4:00pm on 28 April 2026, in order to ensure consistency with the suppression orders I have previously made.

Associate:

Dated:    13 April 2026

SCHEDULE OF PARTIES