Federal Court of Australia

Naude v DRA Australia Pty Ltd (No 2) [2026] FCA 1157

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 17(2) of the Federal Court of Australia Act 1976 (Cth) and r 1.36 of the Federal Court Rules 2011 (Cth), these orders and reasons for judgment are made and published from Chambers.

2.    The amended interlocutory application filed on 16 June 2026 is dismissed.

3.    The applicant must pay the seventh to ninth respondents’ costs of the application in any event.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant in this proceeding, Andrew Naude, makes application for the Court to inspect certain discovered documents (disputed documents) over which the seventh to ninth respondents (Relevant Respondents) claim legal professional privilege. Mr Naude contends that the claim to privilege cannot be maintained because the communications in question were in furtherance of an illegal purpose.

2    Events that occurred in early 2022 are relevant in the proceeding. At that time, Mr Naude was Managing Director and Chief Executive Officer of the first respondent, which was then called DRA Global Limited. Speaking in very broad terms, the disputed documents were created in the context of allegations, made at that time, that the Relevant Respondents were acting in concert in relation to more than 20% of the issued voting shares in DRA, in breach of s 606 of the Corporations Act 2001 (Cth). Mr Naude says that the communications in the disputed documents were in furtherance of this allegedly illegal purpose. Hence, he says, legal professional privilege does not protect the documents from inspection.

3    For the following reasons, Mr Naude’s application will be dismissed, with costs.

Chronology of events and stated bases of claims to privilege

4    It is important to present the relevant events, and the claims to privilege that arise from them, in their proper order. They appear in affidavits sworn by each of the Relevant Respondents in opposition to the application for inspection (collectively Respondents’ Affidavits). The Relevant Respondents are represented by the same solicitors in this proceeding.

5    On 18 February 2022, Matthew Delaney of Resolve Corporate Services (Pty) Ltd sent an email to Ben Secrett, Company Secretary of DRA, which attached notices purporting to requisition a general meeting of the company for the purpose of removing Mr Naude and Peter Mansell as directors, for appointing each of the Relevant Respondents and one Jean Nel as directors, and giving notice pursuant to s 203D of the Corporations Act that the removal resolutions would be moved at the meeting.

6    Mr Delaney’s email said that he was acting on behalf of the Relevant Respondents as well as the tenth respondent, Brian Dowding. The notices were said to have been issued by companies associated with each of the Relevant Respondents and Mr Dowding. The notices said that those companies together held more than the minimum 5% of the voting shares in DRA that was required by s 249D of the Act in order to compel the directors to call the general meeting.

7    On 21 February 2022, Quinn Emanuel Urquhart & Sullivan, a firm of solicitors acting for DRA at the time, wrote to Mr Delaney (in his capacity as representative of the Relevant Respondents but not Mr Dowding) raising a number of concerns and allegations arising from the requisition notices. Materially, Quinn Emanuel referred to certain communications that Mr Mansell had received at around the time of the requisition notices, as well as discussions that took place over the weekend of 19 and 20 February 2022. Quinn Emanuel said:

Those communications, together with the requisitions themselves, give rise to a compelling inference that the requisitionists and other shareholders have entered into (at least) understandings concerning the way in which they will exercise their rights to vote attached to their respective shareholdings in relation to the resolutions the subject of requisitions such that they have acquired relevant interests in more than 20% of the issued shares in DRA in breach of section 606 of the Corporations Act.

8    Quinn Emanuel also alleged that certain matters related to those allegations were ‘“unacceptable circumstances” in relation to the control of DRA enlivening the jurisdiction of the Australian Takeovers Panel under section 657A of the Corporations Act’. The letter demanded the withdrawal of the requisitions, but also indicated that on certain conditions the board of DRA would be prepared to propose a process ‘to effect Mr. Naude’s disengagement from DRA’.

9    On 22 February 2022, Mr Delaney sent an email to Quinn Emanuel saying that his clients accepted the board’s ‘offer’. The email attached a notice bearing the same date, withdrawing the previous requisition notices.

10    On 27 February 2022, Quinn Emanuel wrote to Mr Delaney again, with copies to the Relevant Respondents and Mr Dowding. This letter again expressed concerns about breaches of the takeover provisions of the Corporations Act. It made allegations that certain ‘signed voting agreements’, known as deeds of irrevocable undertaking, had come to the attention of DRA’s board which made the previously expressed inferences about breaches of those provisions, including unlawful associations, ‘unassailable conclusions of fact’.

11    Examples of the deeds of irrevocable undertaking are in evidence, annexed to an affidavit of Bernard Lock affirmed on 12 July 2026, on which Mr Naude relies. The deeds appear to have been executed on dates ranging from 17 February 2022 to 22 February 2022 by or on behalf of shareholders in DRA. They seem to have all been in materially identical terms. In each, the shareholder irrevocably and unconditionally undertakes, confirms, warrants and represents to the ‘consortium of DRA shareholder[s]’ represented by the Relevant Respondents, whom the deeds called the ‘Oxford Consortium’, that the shareholder is the beneficial owner of a specified number of shares in DRA and, in effect, that the shareholder will vote those shares in favour of the requisition resolutions for the removal of Mr Naude and Mr Mansell as directors, and the appointment of the Relevant Respondents and Mr Nel. (I am not sure whether the term ‘Oxford Consortium’ is or may become a contentious one in this proceeding, but since it appears from the deeds to be the term adopted by the group of Relevant Respondents and others to describe themselves, I will use it in this judgment, without implying that I have reached a view on any contentious issue.)

12    The 27 February 2022 letter described alleged contraventions of the Corporations Act that arose from these deeds and other documents. It then highlighted the potential criminal, civil penalty and other remedial consequences provided for by the Act, and said that these were ‘matters upon which DRA must necessarily conduct further enquiries and take further advice’.

13    Each of the Relevant Respondents gives evidence of what they did following receipt of Quinn Emanuel’s letters of 21 February 2022 and 27 February 2022. The evidence is all to a similar effect; it is only necessary to quote paragraph 8 of the affidavit of the eighth respondent, Alistair Hodgkinson, as an example:

Following receipt of the correspondence from Quinn Emanuel referred to in paragraphs 5 and 7 of this affidavit, myself, the Seventh Respondent and the Ninth Respondent sought legal advice (through our designated contact person, Mr Delaney) from Russell Philip of Corrs Chambers Westgarth as to:

(a)     the proper construction and operation of the relevant provisions of the Corporations Act 2001 (Cth); and

(b)     the steps to ensure compliance with the Corporations Act 2001 (Cth).

14    Nine of the disputed documents appear to be related to this evidence, on the face of the descriptions given of them. They are described in the Respondents’ Affidavits as emails dated 27 and 28 February 2022 from Mr Philip of Corrs Chambers Westgarth to Mr Delaney and others (seemingly other Corrs personnel). For each of these Corrs emails, legal advice privilege is claimed. It seems that for some of the documents, redacted versions have already been inspected, so it is unredacted versions of those that Mr Naude seeks. In any event, the privilege is claimed, in each case, on the expressed ground that the document, or the redacted parts of it, ‘contains confidential legal advice relating to compliance with the Corporations Act 2001 (Cth)’ and/or requests for advice of that kind.

15    Paragraph 13 of Mr Hodgkinson’s affidavit says the following about the Corrs emails:

When the correspondence from Quinn Emanuel was received by myself, the Seventh Respondent and the Ninth Respondent in February 2022, we sought advice from Russell Philip of Corrs Chambers Westgarth, through Mr Delaney. Mr Delaney communicated with Corrs Chambers Westgarth for this reason, and forwarded correspondence to me from Corrs Chambers Westgarth.

16    Paragraph 13 of the affidavit of the ninth respondent, Darren Naylor, similarly says (after claiming privilege over four of the nine emails):

When the correspondence from Quinn Emanuel was received by myself, the Seventh Respondent and the Eighth Respondent in February 2022, we convened with Mr Delaney and decided to seek advice from Russell Philip of Corrs Chambers Westgarth. Mr Delaney communicated with Corrs Chambers Westgarth to obtain the advice and forwarded the above correspondence to me from Corrs Chambers Westgarth.

17    Mr Smith’s similar evidence pertains only to the redacted portion of one of the Corrs emails. He says (at para 12 of his affidavit) that this privilege:

was created in the following context:

(a)     When the correspondence from Quinn Emanuel was received by myself, the Eighth Respondent and Ninth Respondent in February 2022, we sought advice from Russell Philip of Corrs Chambers Westgarth, through Mr Delaney.

(b)     Mr Delaney communicated with Corrs Chambers Westgarth for this reason and forwarded the email chain to me from Corrs Chambers Westgarth.

18    Between 28 February and 1 March 2022, the Relevant Respondents circulated emails between themselves confirming (among other things) that there was no ongoing agreement, commitment or understanding between them relating to DRA or the shares they held in it.

19    On 21 March 2022, an application to the Takeovers Panel was made by Haydn von Maltitz in his capacity as a shareholder of DRA and as director of Laela Bayley Pty Ltd, another shareholder of DRA. In broad terms, the application alleged that the members of the Oxford Consortium (whose members it identified as including Mr Dowding and certain other named shareholders in addition to the Relevant Respondents) had lobbied other shareholders for months, and made other efforts to implement a plan to force a change of DRA’s board membership and management structure, culminating in the procurement of the deeds of irrevocable undertaking and the service of the requisition notices. This was said to have involved the Oxford Consortium unlawfully obtaining power over the votes of well in excess of 20% of the shares in DRA, in breach of s 606 of the Corporations Act. Mr von Maltitz and Laela Bayley sought various remedial orders, including orders for the compulsory sale of shares held by the Oxford Consortium.

20    Again, each of the Relevant Respondents gives similar evidence about his reaction to this.

21    Paragraph 10 of Mr Hodgkinson’s affidavit says:

Following the issue of the Takeovers Panel Proceedings:

(a)     I initially contacted the law firms Corrs Chambers Westgarth and Blackwall Legal to act on my behalf and provide me with advice in relation to the proceedings; and

(b)     I ultimately engaged the law firm, HopgoodGanim, to act on my behalf in the Takeovers Panel Proceedings and provide me with advice in relation to that.

22    Paragraph 10 of the affidavit of Mr Naylor says:

Following the issue of the Takeovers Panel Proceedings, I engaged the law firm, DLA Piper, to act on my behalf in the Takeovers Panel Proceedings and provide me with advice in relation to that dispute.

23    Paragraph 10 of Mr Smith’s affidavit is nearly identical, save that the firm he names is Thomson Geer.

24    In each case, the law firm identified as acting on behalf of the Relevant Respondent entered a ‘Notice to Become a Party’ in the Takeovers Panel proceeding on behalf of the shareholder associated with the Relevant Respondent.

25    The remaining disputed documents, on the face of the descriptions given to them by the Relevant Respondents, relate to the Takeovers Panel proceeding. They are all emails or attachments to the emails. The emails bear various dates between 23 March 2022 and 15 August 2022. The senders are either Relevant Respondents (Mr Hodgkinson or Mr Smith) or Robyn Ferguson, a partner of HopgoodGanim. The two emails sent by Mr Smith seem to have been received by persons at Thomson Geer. Emails sent by Mr Hodgkinson between 23 March 2022 and 1 April 2022 seem to have been received by persons at Blackwall Legal and Corrs. The other emails passed between Mr Hodgkinson and Ms Ferguson and others (seemingly, other lawyers at HopgoodGanim).

26    In all but three cases, privilege is claimed on the following basis by the Relevant Respondents:

[The redacted portion of this document/This document] forms part of confidential communications with [my] legal advisors, [firms named], for the purpose of enabling those legal advisors to provide legal advice concerning the Takeovers Panel Proceedings.

27    The three exceptions are emails between Mr Hodgkinson and Ms Ferguson on 16 May 2022 and 2 August 2022, where the basis of the privilege claim is that the document contains legal advice regarding issues in relation to compliance with the Corporations Act concerning the Takeovers Panel proceeding or the orders of the Panel.

28    Mr Hodgkinson’s affidavit says of the communications involving him and Ms Ferguson (at para 16):

The relevant documents consist of communications between myself and HopgoodGanim who I had engaged to act on my behalf in the Takeovers Panel Proceedings to:

(a)     obtain and provide me with legal advice in relation to that dispute; and

(b)     to prepare for, conduct and respond to the allegations made against me in the Takeovers Panel Proceedings.

What Mr Naude seeks and the basis on which he seeks it

29    Two of the orders sought in Mr Naude’s interlocutory application have been essentially satisfied by the explanation of the claims to privilege found in the Respondents’ Affidavits. Mr Naude accepts this. But he presses for more detail.

30    The orders that Mr Naude still seeks arise from what he says (applicant’s position paper dated 14 July 2026 (APP) para 26.1) is the ‘critical deficiency’ of the explanation, which ‘lies in verification. He says the affidavits provide only ‘generalised, formulaic descriptions of dominant purpose.’ Mr Naude therefore seeks orders for:

(a)    the Relevant Respondents to file further affidavits verifying their privilege claims over the disputed documents, with each affidavit to state, for each document, the facts and matters relied upon to establish the claim for legal professional privilege, including a number of listed things;

(b)    the Court to determine, presumably after those affidavits are filed, whether the privilege claims over the disputed documents are not available because the relevant communication was in furtherance of an improper purpose; and

(c)    the Court appoint a registrar, or other person nominated by the Court to review the disputed documents confidentially and report to the Court on whether the claims for legal professional privilege are valid.

31    In describing the basis on which these orders are sought, it is convenient to distinguish between the Corrs emails, which are described at [14] above, and the balance of the disputed documents created on and after 23 March 2022, which are described at [25] above. Mr Naude says the former are of ‘particular significance’.

32    Consistently with the Quinn Emanuel correspondence described at [7] to [10] above, Mr Naude submits that the collective voting power assembled by the Oxford Consortium in February 2022 for the purpose of removing Mr Naude and Mr Mansell as directors of DRA ‘triggered’ the operation of s 606 of the Corporations Act. While the Oxford Consortium withdrew the requisition notices on 22 February 2022, Mr Naude submits that the deeds of irrecoverable undertaking were not formally terminated in any way, so that the allegedly unlawful joint enterprise remained in place. That is until 1 March 2022, when, in the words of Mr Naude’s position paper, ‘confirmation of cessation was circulated’ (see [18] above).

33    Mr Naude points out that the Corrs emails preceded the ‘confirmation of cessation’ emails. He says that this means that at the time the Corrs emails were sent, the alleged contravention of s 606 was ongoing. He submits that the Corrs emails were created ‘at the height of the scheme’ and that their timing immediately after Quinn Emanuel’s letter of 27 February 2022 ‘is powerfully probative of purpose’. He relies in particular on the case of Re Moage Ltd (in liq); Sheahan v Pitterino (1998) 82 FCR 10, in which Mansfield J held that privilege was lost over certain documents because there was a prima facie case of an improper purpose and the documents were in furtherance of it.

34    In this case, Mr Naude submits that the Relevant Respondents’ ‘bare characterisation’ of the Corrs emails as relating to ‘compliance’ should not be accepted on its face, but requires testing. He criticises the characterisation as comprising a ‘bare, repetitive assertion of a “compliance” purpose, in identical terms for documents created across different dates and circumstances’. He says that the Respondents’ Affidavits ‘do not state, for each document individually, the dominant purpose for which the communication was made’ and they ‘do not engage with the question of whether that dominant purpose was compliance or the furtherance of the scheme’ (emphasis in original). This, he says, is insufficient to discharge the evidentiary burden on the Relevant Respondents, in circumstances where the improper purpose exception to legal professional privilege has been raised on a proper factual foundation. He submits what is required, and what is lacking, is an explanation of why privilege attaches to each of the documents in the face of the improper purpose exception. He says it is the verification of the factual foundation for each privilege claim that the orders he seeks will require, and that the Respondents’ Affidavits conspicuously fail to provide.

35    Mr Naude also submits that ‘post-March documents’ following the cessation emails ‘may also relate to the scheme’, saying the Takeovers Panel proceedings ‘concerned the very conduct alleged’ (APP para 35).

36    Mr Naude points to what he says is a ‘pattern of concessions’ by the Relevant Respondents. He says on 17 April 2026 they conceded privilege over four documents and on 30 June 2026 the claim to privilege over more documents was waived. Mr Naude submits that this ‘pattern of progressive concessions demonstrates that the initial claims were over-broad’.

37    Mr Naude also raises a subsidiary issue about the role of Mr Delaney. If he is not a legal practitioner, then according to Mr Naude ‘the necessary relationship of confidence between lawyer and client does not arise through him as conduit without further explanation’. He says no explanation has been given for the basis on which communications with Mr Delaney attract the privilege.

Principles

38    While Mr Naude initially put his submissions on the basis of the exception to legal professional privilege found in s 125 of the Evidence Act 1995 (Cth), it ended up being common ground that since the issue arises in pre-trial discovery and not during a hearing, the common law principles govern whether the exception applies: see Singtel Optus Pty Ltd v Robertson [2024] FCAFC 58 at [24].

39    Young J comprehensively described those principles in AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 at [211]-[219]. To summarise them in so far as they are potentially relevant here:

(1)    The so called ‘fraud exception’ to legal professional privilege has been classically formulated in terms of communications in furtherance of a crime or fraud or ‘any unlawful or wicked act’ (at [211]).

(2)    The exception ‘encompasses a wide species of fraud, criminal activity or actions taken for illegal or improper purposes’ (at [211]). It is based on public policy grounds and so is sufficiently flexible to capture a range of communications where protection would be contrary to the public interest.

(3)    A distinction may usefully be drawn between communications to obtain advice about what, if anything, could lawfully be done in certain circumstances and communications that have the effect of concealing the true nature of a transaction and which enable a client to present an untrue picture. The latter kind of communication will not be privileged.

(4)    Communications with a lawyer in furtherance of a fraud will not be privileged, regardless of whether the lawyer is party to the fraud or is innocent of it.

(5)    But more than a mere assertion or allegation of fraud or impropriety is necessary. The test has been put in terms of ‘reasonable grounds for believing’ that the relevant communication was for an improper purpose’ or a ‘prima facie case’ that has ‘some foundation in fact’. It is not necessary to prove an improper purpose on the balance of probabilities. At [218] Young J said: ‘It must also be established, on the same prima facie basis, that the communication which is the subject of the claim for privilege was made in furtherance of, or as a step preparatory to, the commission of the fraud or wrongdoing.’

40    It will not be enough for a party claiming privilege to make a ‘bare or skeletal claim unsupported by any evidence’ that would enable the claim for privilege to be assessed: see National Crime Authority v S (1991) 29 FCR 203 at 212 (Heerey J).

41    Mr Naude does not seek immediate disclosure of the disputed documents, that is, he does not seek an immediate determination that they are not privileged. Rather, he seeks an order that an officer of the Court (other than me as the docketed trial judge) inspect the documents to determine whether the privilege is lost.

42    The Court should not be hesitant to exercise the power to examine documents where there is a disputed claim: Esso Australia Resources Limited v The Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [52] (Gleeson CJ, Gaudron and Gummow JJ). Nevertheless, a ‘party is not entitled to insist on the court inspecting the documents, it being a matter for the discretion of the judge, who will only do so if there is good reason’: Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232 at [50] (Wigney J) citing Hancock v Rinehart (Privilege) [2016] NSWSC 12 at [31] (Brereton J). At [255] of the NSW Ports case Wigney J observed that:

In many cases the result will be that the court will almost invariably be required to inspect the documents to scrutinise the privilege claim, particularly where the information and belief evidence is vague or lacks specificity, or appears to be based on second or third hand information, or where contextual considerations are capable of casting some doubt on the cogency of the evidence.

43    In Alexiou v Australia and New Zealand Banking Group Limited (Privilege) [2025] FCA 1697 at [61], Younan J rejected a submission that some sort of evidentiary threshold needs to be exceeded before the Court will inspect documents in order to determine a disputed claim of privilege. I respectfully agree; the power to order inspection by the Court is the subject of a discretion in the course of pre-trial procedures. The discretion is to be exercised in the manner that best promotes the administration of justice in the circumstances, and consistently with the overarching purpose of the civil practice and procedure provisions that is found in s 37M of the Federal Court of Australia Act 1976 (Cth). A discretion of that kind is not to be confined by reference to precise-sounding verbal formulae.

Application to this case

44    Although the Court should not hesitate to inspect documents where there is a disputed claim to privilege, and although no particular threshold needs to be exceeded, in this case I am not satisfied that there is sufficient reason to exercise the discretion to order inspection of the Corrs emails or the communications forming the balance of the disputed documents.

45    I will assume that the purpose that is the subject of the allegations in the Quinn Emanuel correspondence was indeed an illegal purpose, and that the Relevant Respondents did have that purpose. I will further assume that they had that purpose at all material times until the confirmation of cessation emails were sent between 28 February and 1 March 2022, and that even the sending of those emails does not necessarily foreclose the possibility that after that date, the members of the Oxford Consortium still wished to act in concert to take control of DRA’s board. These assumptions are just that and are not, of course, findings.

46    But even on those assumptions, strongly favourable to Mr Naude’s position on the interlocutory application, there is no real basis to think that the communications in issue were in furtherance of the assumed illegal purpose.

47    The objective circumstances were as follows (these are observations made for the purposes of explaining the exercise of an interlocutory discretion, based on the limited evidence filed in this application, and do not constrain the findings that may be made after full evidence is led at trial):

(1)    Mr Delaney, who appears to have been a South African adviser and not an Australian lawyer, sent the requisition notices on behalf of the Relevant Respondents and Mr Dowding.

(2)    He, on behalf of the Relevant Respondents, then received a strongly worded letter from an experienced Australian lawyer alleging serious unlawful conduct. The letter also, however, foreshadowed a proposal to resolve the situation.

(3)    Mr Delaney responded on behalf of the Relevant Respondents withdrawing the requisition notices and indicating a willingness to accept the proposed resolution. By this time, the deeds of irrevocable undertaking appear all to have been obtained, that is, there is nothing to suggest that they continued to be sought or obtained after the requisition notices were withdrawn. That is further unlikely, since the requisitions had been withdrawn.

(4)    However, some five days after that, Mr Delaney on behalf of the Relevant Respondents received another strongly worded letter from the experienced Australian lawyer, making further serious allegations and emphasising the potential penalties that may arise from findings of illegal conduct.

(5)    Persons in the positions of the Relevant Respondents at that point had every incentive to obtain Australian legal advice on the merits of their position, that is, on whether they had indeed broken the law, or were continuing to break it and if so, what could be done to cease to break it.

(6)    Even on the assumption that the Relevant Respondents still had the illegal purpose, evidence of conduct capable of being construed as a step taken to achieve the purpose ceased by the time that the deeds of irrevocable undertaking were obtained, being at around the same time that the requisition notices were withdrawn.

(7)    The disputed communications between the Relevant Respondents and legal advisers occurred after that time, and after the allegations of illegality had been made. It may therefore be doubted that the communications occurred ‘at the height of the scheme’. The timing of the legal advice obtained is not probative of the allegation that it was obtained to further the illegal purpose. It is consistent with a desire to find out whether the Relevant Respondents were at risk of being found to have engaged in illegal conduct, and a desire to mitigate the harm that arose from the alleged illegal purpose.

(8)    Further, consistent with the latter desire is the sending of the ‘cessation’ emails immediately after the legal advice from Corrs was obtained. Without commenting on the effect of this, if any, it is precisely the sort of thing that people would do if they had obtained advice at that time about how they might minimise the risk that they would be found to have breached s 606 of the Corporations Act.

(9)    Then, the Takeovers Panel proceeding was commenced. Shortly after that, and unremarkably, each of the Relevant Respondents retained separate legal representation, with each law firm going on the record in the proceeding. At the same time, relevant communications occurred between two of the Relevant Respondents and the law firms from which they sought advice and that later represented them.

48    These objective circumstances are all consistent with the purposes for the disputed documents stated by the Respondents’ Affidavits: to obtain advice as to what they should lawfully do and, then, to obtain advice and representation as to how to defend themselves before the Takeovers Panel. There is nothing in the objective circumstances that suggests that in fact, the purpose of obtaining legal advice (in the end from up to five separate law firms) was to further the assumed illegal purpose. The assumed existence of such a purpose is not enough by itself; if it were, then any person claiming privilege over legal advice in a circumstance where they are or are credibly alleged to be breaking the law would be vulnerable to loss of that privilege. But on analysis, that is all Mr Naude has to support his application.

49    None of which is to suggest that the evidence of the Relevant Respondents, given on oath or affirmation, is to be disregarded. It is not vague, lacking in specificity, or hearsay. The objective circumstances support that evidence and I give it weight. I do not accept the submission that it is to be discounted as rote or formulaic. The similarity of many of the document descriptions is readily explicable by the fact that the documents were sent for the same or similar purposes, in a factual context that suggests that they were part of one course of dealings concerning representation and advice. In any event, the Relevant Respondents have given detailed affidavits about the circumstances which take their evidence well beyond some mantra-like recitation of claims to privilege. There is no need in these circumstances to state the dominant purpose of each communication separately; the asserted purpose of each is clear from the evidence as a whole. I see no need to require further affidavits on the subject.

50    In short, it is one thing to say that persons (allegedly) have an illegal purpose; it is quite another to say that legal advice they obtain in connection with the matter is to further that purpose. Here, the objective surrounding circumstances present no reason to think that it was the latter, and so no reason to doubt the sworn evidence of the Relevant Respondents.

51    As has been said, Mr Naude relies on the case of Re Moage as ‘directly analogous’ to this proceeding. He says the ‘critical distinction’ in Re Moage was whether the relevant document was made while the illegal purpose – in that case a share acquisition scheme in breach of the Companies (Acquisition of Shares) (Victoria) Code and the Foreign Acquisitions and Takeovers Act 1975 (Cth) – was ‘operative and in aid of its objects’ or whether the document ‘post-dated the scheme’s completion and addressed a different purpose’ (APP para 19).

52    However, Re Moage is distinguishable. In that case, the claim to privilege was made by a company called ACC. There was prima facie evidence that it had made loans to facilitate share acquisitions for the purpose of circumventing the takeover provisions. The loans had been upon the advice of Mallesons and with documentation prepared by that firm. Three groups of documents were in dispute, relating respectively to the documentation of the loans, their enforcement, and subsequent litigation to enforce them. Mansfield J provisionally found that documents in the two latter groups were privileged, as they concerned the recovery of the loans rather than the furtherance of the share transactions that were unlawful. The privilege did not, however, attach to documents in the first group that post-dated a memorandum authored by an executive of ACC that on its face contemplated the participation of ACC in the scheme. But Mansfield J declined to rule on the documents that pre-dated the memorandum without further submissions, despite the scheme being arguably ‘operative’ at that time.

53    The facts in Re Moage were therefore quite different to those of the present case. At least after the date of the memorandum, the party claiming privilege, ACC, could be shown to have been involved in the scheme, by the making of loans. Documents produced after that date concerning the making of those loans were prima facie in furtherance of the illegal purpose. The loans furthered the unlawful share acquisitions and the documents effected those loans. There is no analogy to the situation here, which concerns advice that was obtained after allegations of unlawful purpose had been made, where the evidence contains no suggestion that by that time, any steps were being taken to implement the allegedly unlawful scheme. And ultimately, Re Moage is a decision made on the facts and evidence before the Court in that case. It stands for no broad proposition that communications made while an illegal purpose subsists are prima facie in furtherance of that purpose.

54    I also take nothing from the alleged ‘pattern of concessions’; whether or not the Relevant Respondents’ initial claims to privilege were over-broad, they have been narrowed to greater precision by the course of this application. Nothing follows from that concerning whether the disputed documents were in furtherance of the alleged unlawful purpose.

55    As to the point raised about Mr Delaney’s position, it is well established that communications sent or received by a third party on behalf of a client for the dominant purpose of legal advice will still be protected by legal professional privilege: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 at [41] (Finn J), [105] (Stone J); New South Wales v Betfair Pty Ltd [2009] FCAFC 160; (2009) 180 FCR 543 at [39]-[40] (Kenny, Stone and Middleton JJ). There is no reason to doubt the Relevant Respondents’ evidence to the effect that, where Mr Delaney communicated with Corrs, he did so on their behalf, and so for that purpose.

Determination

56    Even accepting that all Mr Naude needs to establish for privilege to be lost is a prima facie case, and accepting that the Court should not be slow to order inspection, the objective circumstances provide no reason to doubt the justifications of the privilege claims given in the Respondents’ Affidavits.

57    Mr Naude’s interlocutory application will be dismissed, with costs.

Associate:

Dated:    17 August 2026

SCHEDULE OF PARTIES