Question:
<citphrase id="cp0.0">cited from="[2006] FCA 913">practice and procedure</citphrase>
<citphrase id="cp0.1">cited from="[2006] FCA 913">whether separate questions should be heard and determined under o 29 r 2 of the federal court rules</citphrase>
<citphrase id="cp0.2">cited from="[2006] FCA 913">relevant legal principles</citphrase>
<citphrase id="cp0.3">cited from="[2006] FCA 913">whether just and convenient to order trial of separate questions</citphrase>
<citphrase id="cp0.4">cited from="[2006] FCA 913">no order under o 29 made</citphrase>
<citphrase id="cp1.0">cited from="[2006] FCA 781">practice and procedure</citphrase>
<citphrase id="cp1.1">cited from="[2006] FCA 781">subpoena</citphrase>
<citphrase id="cp1.2">cited from="[2006] FCA 781">notice to produce</citphrase>
<citphrase id="cp1.3">cited from="[2006] FCA 781">interim application to set aside subpoenas and notices to produce</citphrase>
<citphrase id="cp1.4">cited from="[2006] FCA 781">relevance</citphrase>
<citphrase id="cp1.5">cited from="[2006] FCA 781">legal professional privilege</citphrase>
<citphrase id="cp1.6">cited from="[2006] FCA 781">waiver of privilege</citphrase>
<citphrase id="cp2.0">cited from="[2006] FCA 772">privilege</citphrase>
<citphrase id="cp2.1">cited from="[2006] FCA 772">legal professional privilege</citphrase>
<citphrase id="cp2.2">cited from="[2006] FCA 772">where creditors sought legal advice regarding obtaining security over debt owed by operator of managed investment scheme</citphrase>
<citphrase id="cp2.3">cited from="[2006] FCA 772">where creditors knew scheme in financial difficulty</citphrase>
<citphrase id="cp2.4">cited from="[2006] FCA 772">security obtained</citphrase>
<citphrase id="cp2.5">cited from="[2006] FCA 772">whether solicitors' files regarding the securities and their enforceability privileged</citphrase>
<citphrase id="cp2.6">cited from="[2006] FCA 772">whether advice sought to obtain unfair advantage over other creditors</citphrase>
<citphrase id="cp2.7">cited from="[2006] FCA 772">whether improper purpose</citphrase>
<citphrase id="cp2.8">cited from="[2006] FCA 772">where documents giving effect to securities did not reflect reality of transactions</citphrase>
<citphrase id="cp3.0">cited from="[2006] FCAFC 86">evidence</citphrase>
<citphrase id="cp3.1">cited from="[2006] FCAFC 86">legal professional privilege</citphrase>
<citphrase id="cp3.2">cited from="[2006] FCAFC 86">waiver</citphrase>
<citphrase id="cp3.3">cited from="[2006] FCAFC 86">implied waiver</citphrase>
<citphrase id="cp3.4">cited from="[2006] FCAFC 86">issue waiver</citphrase>
<citphrase id="cp3.5">cited from="[2006] FCAFC 86">whereprivilege-holder acts inconsistently with the privilege by putting the contents of otherwise privileged documents in issue</citphrase>
<citphrase id="cp3.6">cited from="[2006] FCAFC 86">commissioner of taxation identified bases for satisfaction and exercises of discretion as matters evidenced in these documents</citphrase>
<citphrase id="cp3.7">cited from="[2006] FCAFC 86">test of waiver of privilege</citphrase>
<citphrase id="cp4.0">cited from="[2006] FCA 571">the case concerns a document entitled 'cole inquiry</citphrase>
<citphrase id="cp4.1">cited from="[2006] FCA 571">draft statement of contrition</citphrase>
<citphrase id="cp4.2">cited from="[2006] FCA 571">andrew lindberg.' the document became exhibit 665 in the commission of inquiry which is being conducted by commissioner cole ('the inquiry') under the royal commissions act 1902 ('rca').</citphrase>
<citphrase id="cp5.0">cited from="[2006] FCA 348">practice and procedure</citphrase>
<citphrase id="cp5.1">cited from="[2006] FCA 348">whether discovery of a document recording conclusion stated in legal advice waives privilege in the advice</citphrase>
<citphrase id="cp7.0">cited from="[2005] FCA 1336">evidence</citphrase>
<citphrase id="cp7.1">cited from="[2005] FCA 1336">legal professional privilege</citphrase>
<citphrase id="cp7.2">cited from="[2005] FCA 1336">waiver</citphrase>
<citphrase id="cp7.3">cited from="[2005] FCA 1336">implied waiver</citphrase>
<citphrase id="cp7.4">cited from="[2005] FCA 1336">whereprivilege-holder puts his or her state of mind in issue</citphrase>
<citphrase id="cp7.5">cited from="[2005] FCA 1336">whether privilege-holder had put his state of mind in issue</citphrase>
<citphrase id="cp7.6">cited from="[2005] FCA 1336">test of waiver of privilege</citphrase>
<citphrase id="cp8.0">cited from="[2005] FCA 1247">practice and procedure</citphrase>
<citphrase id="cp8.1">cited from="[2005] FCA 1247">application for access pursuant to s 263 of the income tax assessment act 1936 (cth)</citphrase>
<citphrase id="cp8.2">cited from="[2005] FCA 1247">matter remitted from a full court of the federal court of australia</citphrase>
<citphrase id="cp8.3">cited from="[2005] FCA 1247">documents prepared by non-agent third party on the client's instructions</citphrase>
<citphrase id="cp8.4">cited from="[2005] FCA 1247">whether documents prepared for the dominant purpose of obtaining legal advice</citphrase>
<citphrase id="cp8.5">cited from="[2005] FCA 1247">whether certain documents privileged in whole or in part on the ground that the nature of legal advice sought or given might be inferred</citphrase>
<citphrase id="cp9.0">cited from="[2005] FCA 649">practice and procedure</citphrase>
<citphrase id="cp9.1">cited from="[2005] FCA 649">discovery</citphrase>
<citphrase id="cp9.2">cited from="[2005] FCA 649">production of documents</citphrase>
<citphrase id="cp9.3">cited from="[2005] FCA 649">where parts of discovered documents properly masked for confidentiality or excised for irrelevance</citphrase>
<citphrase id="cp9.4">cited from="[2005] FCA 649">scope of client legal privilege</citphrase>
<citphrase id="cp9.5">cited from="[2005] FCA 649">communications between government department or body and employed legal advisors</citphrase>
<citphrase id="cp9.6">cited from="[2005] FCA 649">whether client legal privilege only attaches to communications between client and certificated practitioners</citphrase>
<citphrase id="cp9.7">cited from="[2005] FCA 649">whether waiver of privilege</citphrase>
<citphrase id="cp9.8">cited from="[2005] FCA 649">whether legal advice obtained for improper purpose and not subject to privilege</citphrase>
<citphrase id="cp9.9">cited from="[2005] FCA 649">whether legal advice incorporated in administration decision</citphrase>
<citphrase id="cp10.0">cited from="[2005] FCA 356">evidence</citphrase>
<citphrase id="cp10.1">cited from="[2005] FCA 356">privilege</citphrase>
<citphrase id="cp10.2">cited from="[2005] FCA 356">legal professional privilege</citphrase>
<citphrase id="cp10.3">cited from="[2005] FCA 356">waiver</citphrase>
<citphrase id="cp10.4">cited from="[2005] FCA 356">letter from ninox to nine referring to legal advice obtained by ninox and demanding that nine cease production and distribution of television program</citphrase>
<citphrase id="cp10.5">cited from="[2005] FCA 356">newspaper report quoting ninox as saying it had engaged senior counsel and was moving forward based on his recommendations</citphrase>
<citphrase id="cp10.6">cited from="[2005] FCA 356">no inconsistency between disclosure and confidentiality</citphrase>
<citphrase id="cp10.7">cited from="[2005] FCA 356">assertion that legal advice has been obtained and is being followed is not sufficient to waive privilege</citphrase>
<citphrase id="cp10.8">cited from="[2005] FCA 356">newspaper report is hearsay and cannot be relied upon</citphrase>
<citphrase id="cp10.9">cited from="[2005] FCA 356">report does not disclosure substance or content of advice with sufficient specificity</citphrase>
<citphrase id="cp10.10">cited from="[2005] FCA 356">waiver by pleadings</citphrase>
<citphrase id="cp10.11">cited from="[2005] FCA 356">state of mind not put directly in issue</citphrase>
<citphrase id="cp10.12">cited from="[2005] FCA 356">no waiver</citphrase>
<citphrase id="cp11.0">cited from="[2005] FCA 142">practice and procedure</citphrase>
<citphrase id="cp11.1">cited from="[2005] FCA 142">discovery</citphrase>
<citphrase id="cp11.2">cited from="[2005] FCA 142">legal professional privilege</citphrase>
<citphrase id="cp11.3">cited from="[2005] FCA 142">documents prepared by in-house counsel</citphrase>
<citphrase id="cp11.4">cited from="[2005] FCA 142">claims of privilege withdrawn in respect of majority of documents</citphrase>
<citphrase id="cp11.5">cited from="[2005] FCA 142">two affidavits of verification withdrawn after requests made to cross-examine deponents</citphrase>
<citphrase id="cp11.6">cited from="[2005] FCA 142">remaining affidavit inadequate to sustain claims of privilege</citphrase>
<citphrase id="cp11.7">cited from="[2005] FCA 142">no careful and reasonable evaluation of list of documents prior to swearing affidavit</citphrase>
<citphrase id="cp11.8">cited from="[2005] FCA 142">appropriate for court to inspect documentscosts</citphrase>
<citphrase id="cp11.9">cited from="[2005] FCA 142">indemnity costs</citphrase>
<citphrase id="cp12.0">cited from="[2004] FCAFC 337">legal professional privilege</citphrase>
<citphrase id="cp12.1">cited from="[2004] FCAFC 337">document prepared by the appellant as an aide-memoire before consultation with a person who was a foreign lawyer but who also had other capacities in his relationship with the appellant</citphrase>
<citphrase id="cp12.2">cited from="[2004] FCAFC 337">whether the appellant proved that the dominant purpose of creating the document or any part thereof was for the obtaining of legal advice</citphrase>
<citphrase id="cp12.3">cited from="[2004] FCAFC 337">privilege on the facts not made out</citphrase>
<citphrase id="cp12.4">cited from="[2004] FCAFC 337">place of foreign lawyers in considering legal professional privilege</citphrase>
<citphrase id="cp12.5">cited from="[2004] FCAFC 337">discussion of the scope of legal professional privilege where a document is created for the dominant purpose of obtaining legal advice but is not itself the communication</citphrase>
<citphrase id="cp13.0">cited from="[2004] AATA 1365">freedom of information</citphrase>
<citphrase id="cp13.1">cited from="[2004] AATA 1365">access to documents</citphrase>
<citphrase id="cp13.2">cited from="[2004] AATA 1365">conclusive certificate</citphrase>
<citphrase id="cp13.3">cited from="[2004] AATA 1365">reasonable grounds exist for claims that disclosure would, or could reasonably be expected to, cause damage to the international relations of the commonwealth</citphrase>
<citphrase id="cp13.4">cited from="[2004] AATA 1365">reasonable grounds exist for claims that disclosure would divulge information or matter communicated in confidence by or on behalf of a foreign government</citphrase>
<citphrase id="cp13.5">cited from="[2004] AATA 1365">decision affirmed</citphrase>
<citphrase id="cp14.0">cited from="[2004] HCA 55">equuscorp pty ltd v glengallan investments pty ltd  contract</citphrase>
<citphrase id="cp14.1">cited from="[2004] HCA 55">loan</citphrase>
<citphrase id="cp14.2">cited from="[2004] HCA 55">written agreement and prior oral agreement</citphrase>
<citphrase id="cp14.3">cited from="[2004] HCA 55">written agreement inconsistent with terms of alleged prior oral agreement</citphrase>
<citphrase id="cp14.4">cited from="[2004] HCA 55">no allegation of mistake or claim to rectification</citphrase>
<citphrase id="cp14.5">cited from="[2004] HCA 55">borrower bound by written agreement.  contract</citphrase>
<citphrase id="cp14.6">cited from="[2004] HCA 55">loan</citphrase>
<citphrase id="cp14.7">cited from="[2004] HCA 55">direction to lender to apply money lent in payment of moneys due from borrower to third party</citphrase>
<citphrase id="cp14.8">cited from="[2004] HCA 55">series of connected and legally effective transactions creating and satisfying debts</citphrase>
<citphrase id="cp14.9">cited from="[2004] HCA 55">one of those transactions satisfying amount due from borrower to third party</citphrase>
<citphrase id="cp14.10">cited from="[2004] HCA 55">no payment by cheque or cash</citphrase>
<citphrase id="cp14.11">cited from="[2004] HCA 55">does a loan require the transfer of "real money"</citphrase>
<citphrase id="cp14.12">cited from="[2004] HCA 55">whether loan made as agreed.  practice and procedure</citphrase>
<citphrase id="cp14.13">cited from="[2004] HCA 55">appeal and new trial</citphrase>
<citphrase id="cp14.14">cited from="[2004] HCA 55">remitter for further consideration.   gleeson cj, mchugh, kirby, hayne and callinan jj. as the 1989 financial year ebbed away, each respondent in these appeals considered making a "tax effective" investment. on the last day of may 1989, mr alastair hassell, a marketing consultant for a group of companies associated with mr tony johnson ("the johnson group"), sent to one of the respondents, mr barry thornton, a circular entitled, "precisely what is the best farming investment this year?". the circular suggested that the answer to this question was "the red claw (fresh water crustacean) project in northern queensland" to be conducted by the johnson group as a "large-scale aquaculture project".</citphrase>
<citphrase id="cp15.0">cited from="[2004] FCAFC 237">evidence</citphrase>
<citphrase id="cp15.1">cited from="[2004] FCAFC 237">privilege</citphrase>
<citphrase id="cp15.2">cited from="[2004] FCAFC 237">legal professional privilege</citphrase>
<citphrase id="cp15.3">cited from="[2004] FCAFC 237">waiver</citphrase>
<citphrase id="cp15.4">cited from="[2004] FCAFC 237">letter conveying substance and effect of legal advice to third party</citphrase>
<citphrase id="cp15.5">cited from="[2004] FCAFC 237">inconsistency between disclosure and confidentiality</citphrase>
<citphrase id="cp15.6">cited from="[2004] FCAFC 237">waiver imputed where final conclusion of legal advice stated</citphrase>
<citphrase id="cp15.7">cited from="[2004] FCAFC 237">voluntary disclosure of the conclusion of legal advice waives privilege in relation to undisclosed reasons for conclusion</citphrase>
<citphrase id="cp15.8">cited from="[2004] FCAFC 237">disclosure of one conclusion does not necessarily waive privilege in relation to undisclosed conclusions  freedom of information</citphrase>
<citphrase id="cp15.9">cited from="[2004] FCAFC 237">appeal from administrative appeals tribunal on question of law</citphrase>
<citphrase id="cp15.10">cited from="[2004] FCAFC 237">exempt documents</citphrase>
<citphrase id="cp15.11">cited from="[2004] FCAFC 237">documents privileged from production on grounds of legal professional privilege</citphrase>
<citphrase id="cp15.12">cited from="[2004] FCAFC 237">principles relating to waiver of privilege in documents otherwise exempt</citphrase>
<citphrase id="cp15.13">cited from="[2004] FCAFC 237">decision as to waiver involved an error on a question of law as to correct application of test for waiver of privilege freedom of information</citphrase>
<citphrase id="cp15.14">cited from="[2004] FCAFC 237">administrative appeals tribunal</citphrase>
<citphrase id="cp15.15">cited from="[2004] FCAFC 237">powers of tribunal under freedom of information act 1982 (cth) s 58</citphrase>
<citphrase id="cp15.16">cited from="[2004] FCAFC 237">tribunal empowered to review any decision made by an agency or minister</citphrase>
<citphrase id="cp15.17">cited from="[2004] FCAFC 237">tribunal stands in shoes of relevant agency or minister for purpose of administrative review</citphrase>
<citphrase id="cp15.18">cited from="[2004] FCAFC 237">power of tribunal to review decision of agency or minister not severable from power to determine threshold questions in relation to reviewable decision</citphrase>
<citphrase id="cp15.19">cited from="[2004] FCAFC 237">tribunal not empowered to review decision to claim exemption from disclosure on grounds of privilege without reviewing validity of privilege claim itself freedom of information</citphrase>
<citphrase id="cp15.20">cited from="[2004] FCAFC 237">exempt documents</citphrase>
<citphrase id="cp15.21">cited from="[2004] FCAFC 237">documents privileged from production on grounds of legal professional privilege</citphrase>
<citphrase id="cp15.22">cited from="[2004] FCAFC 237">documents containing privileged matter not exempt if used by relevant agency to determine entitlements or obligations of persons generally under an enactment or scheme administered by that agency</citphrase>
<citphrase id="cp15.23">cited from="[2004] FCAFC 237">legal advice provided in relation to particular case may fall within this category in some circumstances administrative law</citphrase>
<citphrase id="cp15.24">cited from="[2004] FCAFC 237">limits upon power of court on appeal from administrative appeals tribunal</citphrase>
<citphrase id="cp16.0">cited from="[2004] FCAFC 122">taxation and revenue</citphrase>
<citphrase id="cp16.1">cited from="[2004] FCAFC 122">income tax</citphrase>
<citphrase id="cp16.2">cited from="[2004] FCAFC 122">documents commissioner of taxation entitled to have access to under income tax assessment act 1936 (cth) s 263</citphrase>
<citphrase id="cp16.3">cited from="[2004] FCAFC 122">privilege claimed practice and procedure</citphrase>
<citphrase id="cp16.4">cited from="[2004] FCAFC 122">legal professional privilege</citphrase>
<citphrase id="cp16.5">cited from="[2004] FCAFC 122">whether privilege can attach to documents prepared by third party at direction of principal and returned to principal to then give to solicitor for purpose of obtaining legal advice</citphrase>
<citphrase id="cp16.6">cited from="[2004] FCAFC 122">difficulty in determining dominant purpose of principal in instructing third party to prepare documents</citphrase>
<citphrase id="cp18.0">cited from="[2004] FCA 258">practice and procedure</citphrase>
<citphrase id="cp18.1">cited from="[2004] FCA 258">legal professional privilege</citphrase>
<citphrase id="cp18.2">cited from="[2004] FCA 258">where applicant claimed privilege in respect of document provided to legal adviser for purpose of obtaining legal advice</citphrase>
<citphrase id="cp18.3">cited from="[2004] FCA 258">where document outlined proposal for corporate restructure</citphrase>
<citphrase id="cp18.4">cited from="[2004] FCA 258">whether document drawn for an improper purpose</citphrase>
<citphrase id="cp18.5">cited from="[2004] FCA 258">where proposed restructure would put assets beyond the reach of a secured creditor who appointed receivers and managers to the corporate group</citphrase>
<citphrase id="cp18.6">cited from="[2004] FCA 258">document drawn for improper purpose</citphrase>
<citphrase id="cp18.7">cited from="[2004] FCA 258">document not protected by legal professional privilege.</citphrase>
<citphrase id="cp22.0">cited from="[2002] HCA 49">the daniels corporation international pty ltd v australian competition and consumer commission  evidence</citphrase>
<citphrase id="cp22.1">cited from="[2002] HCA 49">legal professional privilege</citphrase>
<citphrase id="cp22.2">cited from="[2002] HCA 49">statutory notice to produce documents</citphrase>
<citphrase id="cp22.3">cited from="[2002] HCA 49">whether statute abrogated legal professional privilege.  trade practices</citphrase>
<citphrase id="cp22.4">cited from="[2002] HCA 49">notice to produce documents to australian competition and consumer commission</citphrase>
<citphrase id="cp22.5">cited from="[2002] HCA 49">commission investigating whether trade practices act 1974 (cth) contravened</citphrase>
<citphrase id="cp22.6">cited from="[2002] HCA 49">whether documents to be produced included those for which legal professional privilege claimed.</citphrase>
<citphrase id="cp25.0">cited from="[2001] QSC 180">procedure</citphrase>
<citphrase id="cp25.1">cited from="[2001] QSC 180">discovery and interrogatories</citphrase>
<citphrase id="cp25.2">cited from="[2001] QSC 180">production and inspection</citphrase>
<citphrase id="cp25.3">cited from="[2001] QSC 180">grounds for resisting production</citphrase>
<citphrase id="cp25.4">cited from="[2001] QSC 180">legal professional privilege</citphrase>
<citphrase id="cp25.5">cited from="[2001] QSC 180">what constitutes</citphrase>
<citphrase id="cp25.6">cited from="[2001] QSC 180">for purposes of or in contemplation of litigation  report commissioned by "in-house" lawyer</citphrase>
<citphrase id="cp25.7">cited from="[2001] QSC 180">wh legal professional privilege attached</citphrase>
<citphrase id="cp25.8">cited from="[2001] QSC 180">wh dominant purpose in bringing report into existence was its use in contemplated  litigation or for legal advice</citphrase>
<citphrase id="cp25.9">cited from="[2001] QSC 180">dominant purpose for legal advice therefore privileged  uniform civil procedure rules 1999  alfred crompton amusement machines ltd v customs and excise commissioners (no. 2) [1972] 2 qb 102  attorney-general for the northern territory of australia v kearney [1985] hca 60 ; (1985) 158 clr 500</citphrase>
<citphrase id="cp26.0">cited from="[1999] HCA 66">mann v carnell  practice and procedure</citphrase>
<citphrase id="cp26.1">cited from="[1999] HCA 66">preliminary discovery</citphrase>
<citphrase id="cp26.2">cited from="[1999] HCA 66">legal professional privilege</citphrase>
<citphrase id="cp26.3">cited from="[1999] HCA 66">loss of privilege</citphrase>
<citphrase id="cp26.4">cited from="[1999] HCA 66">waiver by disclosure to third party.  australian capital territory</citphrase>
<citphrase id="cp26.5">cited from="[1999] HCA 66">separation of powers</citphrase>
<citphrase id="cp26.6">cited from="[1999] HCA 66">representative government</citphrase>
<citphrase id="cp26.7">cited from="[1999] HCA 66">nature of relationship between the act legislative assembly and the act executive.</citphrase>
<citphrase id="cp27.0">cited from="[1999] HCA 67">esso australia resources limited v the commissioner of taxation  practice and procedure</citphrase>
<citphrase id="cp27.1">cited from="[1999] HCA 67">discovery</citphrase>
<citphrase id="cp27.2">cited from="[1999] HCA 67">legal professional privilege</citphrase>
<citphrase id="cp27.3">cited from="[1999] HCA 67">whether test for privilege is "dominant purpose" test or "sole purpose" test.  evidence</citphrase>
<citphrase id="cp27.4">cited from="[1999] HCA 67">legal professional privilege</citphrase>
<citphrase id="cp27.5">cited from="[1999] HCA 67">client legal privilege</citphrase>
<citphrase id="cp27.6">cited from="[1999] HCA 67">test for</citphrase>
<citphrase id="cp27.7">cited from="[1999] HCA 67">whether "dominant purpose or sole purpose".  statutes</citphrase>
<citphrase id="cp27.8">cited from="[1999] HCA 67">influence on common law</citphrase>
<citphrase id="cp27.9">cited from="[1999] HCA 67">evidence act 1995</citphrase>
<citphrase id="cp27.10">cited from="[1999] HCA 67">applicable in three australian jurisdictions</citphrase>
<citphrase id="cp27.11">cited from="[1999] HCA 67">whether enactments affect development of common law</citphrase>
<citphrase id="cp27.12">cited from="[1999] HCA 67">significance of non-enactment in other jurisdictions</citphrase>
<citphrase id="cp27.13">cited from="[1999] HCA 67">relevance (if any) of act to application to review past authority of high court.</citphrase>
<citphrase id="cp30.0">cited from="[1999] VSC 131">discovery of documents</citphrase>
<citphrase id="cp30.1">cited from="[1999] VSC 131">objection to production</citphrase>
<citphrase id="cp30.2">cited from="[1999] VSC 131">legal professional privilege</citphrase>
<citphrase id="cp30.3">cited from="[1999] VSC 131">salaried employee lawyer</citphrase>
<citphrase id="cp30.4">cited from="[1999] VSC 131">privilege available</citphrase>
<citphrase id="cp30.5">cited from="[1999] VSC 131">independence of lawyer</citphrase>
<citphrase id="cp30.6">cited from="[1999] VSC 131">whether necessary</citphrase>
<citphrase id="cp30.7">cited from="[1999] VSC 131">onus</citphrase>
<citphrase id="cp30.8">cited from="[1999] VSC 131">proof</citphrase>
<citphrase id="cp30.9">cited from="[1999] VSC 131">acting independently</citphrase>
<citphrase id="cp33.0">cited from="[1996] HCA 3">high court</citphrase>
<citphrase id="cp33.1">cited from="[1996] HCA 3">procedure</citphrase>
<citphrase id="cp33.2">cited from="[1996] HCA 3">stay of proceedings</citphrase>
<citphrase id="cp33.3">cited from="[1996] HCA 3">pending special leave application</citphrase>
<citphrase id="cp33.4">cited from="[1996] HCA 3">applicable principles</citphrase>
<citphrase id="cp33.5">cited from="[1996] HCA 3">non-determination of substantive application</citphrase>
<citphrase id="cp33.6">cited from="[1996] HCA 3">need for special circumstances</citphrase>
<citphrase id="cp33.7">cited from="[1996] HCA 3">extraordinary nature of jurisdiction</citphrase>
<citphrase id="cp33.8">cited from="[1996] HCA 3">special rules for stay of orders designed to protect public</citphrase>
<citphrase id="cp33.9">cited from="[1996] HCA 3">sequestration order in bankrupt's estate</citphrase>
<citphrase id="cp33.10">cited from="[1996] HCA 3">stay refused.   bankruptcy</citphrase>
<citphrase id="cp33.11">cited from="[1996] HCA 3">procedure</citphrase>
<citphrase id="cp33.12">cited from="[1996] HCA 3">special leave application to high court</citphrase>
<citphrase id="cp33.13">cited from="[1996] HCA 3">application for stay of orders</citphrase>
<citphrase id="cp33.14">cited from="[1996] HCA 3">effect on tenure of councillor</citphrase>
<citphrase id="cp33.15">cited from="[1996] HCA 3">in local government authority</citphrase>
<citphrase id="cp33.16">cited from="[1996] HCA 3">relevance of interests of creditors</citphrase>
<citphrase id="cp33.17">cited from="[1996] HCA 3">stay refused.   local government</citphrase>
<citphrase id="cp33.18">cited from="[1996] HCA 3">elected councillor</citphrase>
<citphrase id="cp33.19">cited from="[1996] HCA 3">disqualification from office by reason of bankruptcy</citphrase>
<citphrase id="cp33.20">cited from="[1996] HCA 3">application for stay pending special leave application to high court</citphrase>
<citphrase id="cp33.21">cited from="[1996] HCA 3">effect of legislation</citphrase>
<citphrase id="cp33.22">cited from="[1996] HCA 3">interests of creditors</citphrase>
<citphrase id="cp33.23">cited from="[1996] HCA 3">balance of convenience</citphrase>
<citphrase id="cp33.24">cited from="[1996] HCA 3">stay refused.</citphrase>
<citphrase id="cp35.0">cited from="[1995] FCA 870">evidence</citphrase>
<citphrase id="cp35.1">cited from="[1995] FCA 870">rulings</citphrase>
<citphrase id="cp35.2">cited from="[1995] FCA 870">ruling on application to inspect second applicant's proof of evidence</citphrase>
<citphrase id="cp35.3">cited from="[1995] FCA 870">production of proof of evidence</citphrase>
<citphrase id="cp35.4">cited from="[1995] FCA 870">appication for leave to amend statement of claim to include a cliam for exemplary damages</citphrase>
<citphrase id="cp35.5">cited from="[1995] FCA 870">similar fact evidence objection</citphrase>
<citphrase id="cp35.6">cited from="[1995] FCA 870">admissibility of transcript from hughes proceeding</citphrase>
<citphrase id="cp35.7">cited from="[1995] FCA 870">ruling on reports of financial experts</citphrase>
<citphrase id="cp35.8">cited from="[1995] FCA 870">ruling on legal professional privilege of letter of instruction</citphrase>
<citphrase id="cp35.9">cited from="[1995] FCA 870">admissibility of oral evidence by mr cummins</citphrase>
<citphrase id="cp36.0">cited from="[1992] FCA 627">evidence</citphrase>
<citphrase id="cp36.1">cited from="[1992] FCA 627">legal professional privilege</citphrase>
<citphrase id="cp36.2">cited from="[1992] FCA 627">subpoena for production</citphrase>
<citphrase id="cp36.3">cited from="[1992] FCA 627">documents and letters of instruction forwarded by solicitor to potential witness</citphrase>
<citphrase id="cp36.4">cited from="[1992] FCA 627">whether implied waiver of legal professional privilege.  attorney-general for the northern territory v maurice and ors [1986] hca 80 ; (1986) 161 clr 475</citphrase>
<citphrase id="cp37.0">cited from="[1991] HCA 2">high court</citphrase>
<citphrase id="cp37.1">cited from="[1991] HCA 2">practice</citphrase>
<citphrase id="cp37.2">cited from="[1991] HCA 2">costs</citphrase>
<citphrase id="cp37.3">cited from="[1991] HCA 2">taxation</citphrase>
<citphrase id="cp37.4">cited from="[1991] HCA 2">taxing officer</citphrase>
<citphrase id="cp37.5">cited from="[1991] HCA 2">powers</citphrase>
<citphrase id="cp37.6">cited from="[1991] HCA 2">legal professional privilege</citphrase>
<citphrase id="cp37.7">cited from="[1991] HCA 2">effect of refusal to tender privileged documents</citphrase>
<citphrase id="cp37.8">cited from="[1991] HCA 2">whether other party entitled to see tendered privileged documents</citphrase>
<citphrase id="cp37.9">cited from="[1991] HCA 2">high court rules, o. 71, r. 70.</citphrase>
<citphrase id="cp38.0">cited from="[1987] HCA 25">constitutional law</citphrase>
<citphrase id="cp38.1">cited from="[1987] HCA 25">freedom of information</citphrase>
<citphrase id="cp38.2">cited from="[1987] HCA 25">exempt documents</citphrase>
<citphrase id="cp38.3">cited from="[1987] HCA 25">legal professional privilege</citphrase>
<citphrase id="cp38.4">cited from="[1987] HCA 25">communications between government and salaried legal advisers</citphrase>
<citphrase id="cp38.5">cited from="[1987] HCA 25">freedom of information act 1982 (cth), s.42(1).  practice</citphrase>
<citphrase id="cp38.6">cited from="[1987] HCA 25">discovery</citphrase>
<citphrase id="cp38.7">cited from="[1987] HCA 25">legal professional privilege</citphrase>
<citphrase id="cp38.8">cited from="[1987] HCA 25">communications between government and salaried legal advisers.</citphrase>
<citphrase id="cp39.0">cited from="[1986] HCA 80">practice</citphrase>
<citphrase id="cp39.1">cited from="[1986] HCA 80">discovery</citphrase>
<citphrase id="cp39.2">cited from="[1986] HCA 80">production of document for inspection</citphrase>
<citphrase id="cp39.3">cited from="[1986] HCA 80">privilege</citphrase>
<citphrase id="cp39.4">cited from="[1986] HCA 80">legal professional privilege</citphrase>
<citphrase id="cp39.5">cited from="[1986] HCA 80">waiver</citphrase>
<citphrase id="cp39.6">cited from="[1986] HCA 80">when imputed from conduct</citphrase>
<citphrase id="cp39.7">cited from="[1986] HCA 80">aboriginal land claim</citphrase>
<citphrase id="cp39.8">cited from="[1986] HCA 80">claim book filed and distributed to other parties</citphrase>
<citphrase id="cp39.9">cited from="[1986] HCA 80">whether waiver of privileged source materials used in preparation of book.</citphrase>
<citphrase id="cp40.0">cited from="[1985] HCA 60">practice</citphrase>
<citphrase id="cp40.1">cited from="[1985] HCA 60">discovery</citphrase>
<citphrase id="cp40.2">cited from="[1985] HCA 60">legal professional privilege</citphrase>
<citphrase id="cp40.3">cited from="[1985] HCA 60">communications between government and salaried legal advisers</citphrase>
<citphrase id="cp40.4">cited from="[1985] HCA 60">prima facie evidence of deliberate abuse of statutory powers.</citphrase>
<citphrase id="cp41.0">cited from="[1983] HCA 39">legal practitioners</citphrase>
<citphrase id="cp41.1">cited from="[1983] HCA 39">solicitors</citphrase>
<citphrase id="cp41.2">cited from="[1983] HCA 39">legal professional privilege</citphrase>
<citphrase id="cp41.3">cited from="[1983] HCA 39">whether confined to judicial and quasi-judicial proceedings</citphrase>
<citphrase id="cp41.4">cited from="[1983] HCA 39">search warrant</citphrase>
<citphrase id="cp41.5">cited from="[1983] HCA 39">attempt to seize documents held by solicitors on behalf of client</citphrase>
<citphrase id="cp41.6">cited from="[1983] HCA 39">whether documents protected by legal professional privilege subject to search warrant</citphrase>
<citphrase id="cp41.7">cited from="[1983] HCA 39">crimes act 1914 (cth),s. 10.</citphrase>
<citphrase id="cp42.0">cited from="[1980] HCA 26">practice</citphrase>
<citphrase id="cp42.1">cited from="[1980] HCA 26">discovery</citphrase>
<citphrase id="cp42.2">cited from="[1980] HCA 26">legal professional privilege</citphrase>
<citphrase id="cp42.3">cited from="[1980] HCA 26">communication of address by client to solicitor</citphrase>
<citphrase id="cp42.4">cited from="[1980] HCA 26">whether privileged.  infants and children</citphrase>
<citphrase id="cp42.5">cited from="[1980] HCA 26">family court of australia</citphrase>
<citphrase id="cp42.6">cited from="[1980] HCA 26">custody of child of a marriage</citphrase>
<citphrase id="cp42.7">cited from="[1980] HCA 26">grant of interim custody to husband</citphrase>
<citphrase id="cp42.8">cited from="[1980] HCA 26">refusal by wife to deliver child</citphrase>
<citphrase id="cp42.9">cited from="[1980] HCA 26">concealment of child</citphrase>
<citphrase id="cp42.10">cited from="[1980] HCA 26">refusal by wife's solicitor to disclose her address</citphrase>
<citphrase id="cp42.11">cited from="[1980] HCA 26">solicitor not party to any action</citphrase>
<citphrase id="cp42.12">cited from="[1980] HCA 26">whether compellable to disclose address</citphrase>
<citphrase id="cp42.13">cited from="[1980] HCA 26">family law act 1975 (cth), ss. 70(6)*, 114 (3)*. (1980) 146 c.l.r. at p. 147. (1980) 146 c.l.r. at p. 147.</citphrase>
<citphrase id="cp43.0">cited from="[1979] FCA 33">evidence</citphrase>
<citphrase id="cp43.1">cited from="[1979] FCA 33">discovery and inspection</citphrase>
<citphrase id="cp43.2">cited from="[1979] FCA 33">legal professional privilege</citphrase>
<citphrase id="cp43.3">cited from="[1979] FCA 33">inspection by court</citphrase>
<citphrase id="cp43.4">cited from="[1979] FCA 33">principles applicable to consideration of claim of legal professional privilege discussed. the applicant objected to the production of certain documents listed in its affidavit of discovery on the ground of legal professional privilege. on the respondent's application for inspection,</citphrase>
<citphrase id="cp44.0">cited from="[1976] HCA 63">practice</citphrase>
<citphrase id="cp44.1">cited from="[1976] HCA 63">discovery</citphrase>
<citphrase id="cp44.2">cited from="[1976] HCA 63">production of document for inspection</citphrase>
<citphrase id="cp44.3">cited from="[1976] HCA 63">privilege</citphrase>
<citphrase id="cp44.4">cited from="[1976] HCA 63">legal professional privilege</citphrase>
<citphrase id="cp44.5">cited from="[1976] HCA 63">report to department of public health on injury received by inmate of psychiatric centre</citphrase>
<citphrase id="cp44.6">cited from="[1976] HCA 63">report obtained inter alia with intention of forwarding it to legal adviser if proceedings instituted against commission for damages for default.</citphrase>
<citphrase id="cp46.0">citing from="[2011] WASC 243">practice and procedure</citphrase>
<citphrase id="cp46.1">citing from="[2011] WASC 243">discovery and inspection of documents</citphrase>
<citphrase id="cp46.2">citing from="[2011] WASC 243">legal professional privilege</citphrase>
<citphrase id="cp46.3">citing from="[2011] WASC 243">waiver</citphrase>
<citphrase id="cp46.4">citing from="[2011] WASC 243">legal principles</citphrase>
<citphrase id="cp46.5">citing from="[2011] WASC 243">turns on own facts</citphrase>
<citphrase id="cp47.0">citing from="[2011] WASC 220">evidence</citphrase>
<citphrase id="cp47.1">citing from="[2011] WASC 220">privilege</citphrase>
<citphrase id="cp47.2">citing from="[2011] WASC 220">legal professional privilege</citphrase>
<citphrase id="cp47.3">citing from="[2011] WASC 220">receivers and managers</citphrase>
<citphrase id="cp47.4">citing from="[2011] WASC 220">whether solicitors engaged by receiver and manager are engaged to act for company</citphrase>
<citphrase id="cp47.5">citing from="[2011] WASC 220">whether sufficient basis to maintain claim for legal professional privilege over bills of costs and recharge schedules</citphrase>
<citphrase id="cp47.6">citing from="[2011] WASC 220">whether legal professional privilege waived</citphrase>
<citphrase id="cp47.7">citing from="[2011] WASC 220">whether privilege abrogated by statute</citphrase>
<citphrase id="cp48.0">citing from="[2011] FCA 938">evidence</citphrase>
<citphrase id="cp48.1">citing from="[2011] FCA 938">documents</citphrase>
<citphrase id="cp48.2">citing from="[2011] FCA 938">privilege</citphrase>
<citphrase id="cp48.3">citing from="[2011] FCA 938">public interest immunity</citphrase>
<citphrase id="cp48.4">citing from="[2011] FCA 938">balancing exercise</citphrase>
<citphrase id="cp48.5">citing from="[2011] FCA 938">objection to disclosure as documents would reveal identity of cartel informer</citphrase>
<citphrase id="cp48.6">citing from="[2011] FCA 938">whether immunity arises</citphrase>
<citphrase id="cp48.7">citing from="[2011] FCA 938">whether documents relevant to application for leave to set aside service</citphrase>
<citphrase id="cp48.8">citing from="[2011] FCA 938">whether immunity lost by possible disclosure in another jurisdiction  evidence</citphrase>
<citphrase id="cp48.9">citing from="[2011] FCA 938">documents</citphrase>
<citphrase id="cp48.10">citing from="[2011] FCA 938">s 50 federal court act 1976 (cth)</citphrase>
<citphrase id="cp48.11">citing from="[2011] FCA 938">whether order necessary to prevent prejudice to proper administration of justice  practice and procedure</citphrase>
<citphrase id="cp48.12">citing from="[2011] FCA 938">notices to produce</citphrase>
<citphrase id="cp48.13">citing from="[2011] FCA 938">whether notices have a legitimate purpose</citphrase>
<citphrase id="cp48.14">citing from="[2011] FCA 938">whether notices oppressive</citphrase>
<citphrase id="cp48.15">citing from="[2011] FCA 938">whether grounds to excuse compliance</citphrase>
<citphrase id="cp49.0">citing from="[2011] AATA 556">freedom of information</citphrase>
<citphrase id="cp49.1">citing from="[2011] AATA 556">legal professional privilege</citphrase>
<citphrase id="cp49.2">citing from="[2011] AATA 556">legal advice given by attorney-general's department, australian government solicitor and department of foreign affairs and trade</citphrase>
<citphrase id="cp49.3">citing from="[2011] AATA 556">nature of professional relationship between legal adviser and client</citphrase>
<citphrase id="cp49.4">citing from="[2011] AATA 556">criteria determining independence</citphrase>
<citphrase id="cp49.5">citing from="[2011] AATA 556">relevance of advice being given by officer having a law degree and/or admission as a legal practitioner</citphrase>
<citphrase id="cp49.6">citing from="[2011] AATA 556">relevance of allocation of commonwealth's legal work under legal services direction</citphrase>
<citphrase id="cp49.7">citing from="[2011] AATA 556">relevance of reasonable belief of client in nature of relationship</citphrase>
<citphrase id="cp49.8">citing from="[2011] AATA 556">third party communications falling within scope of legal advice subject to privilege</citphrase>
<citphrase id="cp49.9">citing from="[2011] AATA 556">no waiver of privilege</citphrase>
<citphrase id="cp49.10">citing from="[2011] AATA 556">decision affirmed on legal professional privilege exemption.  freedom of information</citphrase>
<citphrase id="cp49.11">citing from="[2011] AATA 556">internal working documents</citphrase>
<citphrase id="cp49.12">citing from="[2011] AATA 556">no evidentiary basis for finding that disclosure would be contrary to the public interest.</citphrase>
<citphrase id="cp50.0">citing from="[2011] VSC 341">evidence</citphrase>
<citphrase id="cp50.1">citing from="[2011] VSC 341">client legal privilege</citphrase>
<citphrase id="cp50.2">citing from="[2011] VSC 341">loss of privilege by the commission of a fraud, an offence or an act that renders a person liable to a civil penalty</citphrase>
<citphrase id="cp50.3">citing from="[2011] VSC 341">meaning of 'fraud'</citphrase>
<citphrase id="cp50.4">citing from="[2011] VSC 341">whether the client must be knowingly involved in the fraud, offence or act</citphrase>
<citphrase id="cp50.5">citing from="[2011] VSC 341">meaning of 'in furtherance of the commission of a fraud ... offence ... or act'</citphrase>
<citphrase id="cp50.6">citing from="[2011] VSC 341">whether the fraud, offence or act must be consummated</citphrase>
<citphrase id="cp50.7">citing from="[2011] VSC 341">whether the commission of the fraud, offence or act must be a fact in issue</citphrase>
<citphrase id="cp50.8">citing from="[2011] VSC 341">evidence act 2008 , ss 125 , 131a .</citphrase>
<citphrase id="cp51.0">citing from="[2011] VSC 308">practice and procedure</citphrase>
<citphrase id="cp51.1">citing from="[2011] VSC 308">application for inspection of discovered reports on cause of fire at coleraine on black saturday</citphrase>
<citphrase id="cp51.2">citing from="[2011] VSC 308">defendant's solicitor informed that fire allegedly caused by defendant's power line</citphrase>
<citphrase id="cp51.3">citing from="[2011] VSC 308">solicitor anticipated litigation against defendant</citphrase>
<citphrase id="cp51.4">citing from="[2011] VSC 308">solicitor consults ceo of defendant and instructed to carry out investigation</citphrase>
<citphrase id="cp51.5">citing from="[2011] VSC 308">solicitor seeks reports on cause of fire allegedly caused by defendant's power line</citphrase>
<citphrase id="cp51.6">citing from="[2011] VSC 308">solicitor says purpose of reports was to give legal advice to defendant</citphrase>
<citphrase id="cp51.7">citing from="[2011] VSC 308">defendant needed information in reports for a range of purposes</citphrase>
<citphrase id="cp51.8">citing from="[2011] VSC 308">duty of defendant to report defendant's part in cause of fire to energy safe victoria under the electricity safety act 1998</citphrase>
<citphrase id="cp51.9">citing from="[2011] VSC 308">duty of officers of defendant to act with reasonable degree of care and diligence under s 180 corporations act 2001 to ascertain defendant's part in cause of fire</citphrase>
<citphrase id="cp51.10">citing from="[2011] VSC 308">failure of defendant to prove dominant purpose was covered by legal advice or legal litigation privilege</citphrase>
<citphrase id="cp51.11">citing from="[2011] VSC 308">inspection ordered</citphrase>
<citphrase id="cp51.12">citing from="[2011] VSC 308">section 180 corporations act 2001 ; electricity safety act 1998 ; and ss 119 and 120 evidence act 2008 .</citphrase>
<citphrase id="cp52.0">citing from="[2011] AATA 372">practice and procedure</citphrase>
<citphrase id="cp52.1">citing from="[2011] AATA 372">summons served on transport accident commission</citphrase>
<citphrase id="cp52.2">citing from="[2011] AATA 372">legal professional privilege</citphrase>
<citphrase id="cp52.3">citing from="[2011] AATA 372">documents described as investigation reports and estimate of damages and legal costs payable</citphrase>
<citphrase id="cp52.4">citing from="[2011] AATA 372">whether created for the dominant purpose of existing or anticipated litigation.</citphrase>
<citphrase id="cp53.0">citing from="[2011] VSC 194">judge : mukhtar asj where held : melbourne date of hearing : 29 april 2011 date of judgment : 12 may 2011 case may be cited as : samenic limited v apm group (aust) pty ltd medium neutral citation : [2011] vsc 194 revised 24 may 2011</citphrase>
<citphrase id="cp54.0">citing from="[2011] FCA 479">practice and procedure</citphrase>
<citphrase id="cp54.1">citing from="[2011] FCA 479">legal professional privilege</citphrase>
<citphrase id="cp54.2">citing from="[2011] FCA 479">application to access documents produced under subpoena over which a claim for privilege had been made</citphrase>
<citphrase id="cp54.3">citing from="[2011] FCA 479">principles relevant to a claim for privilege</citphrase>
<citphrase id="cp54.4">citing from="[2011] FCA 479">application of dominant purpose test</citphrase>
<citphrase id="cp54.5">citing from="[2011] FCA 479">generalised evidence</citphrase>
<citphrase id="cp54.6">citing from="[2011] FCA 479">insufficient specification of topics for a claim for privilege  practice and procedure</citphrase>
<citphrase id="cp54.7">citing from="[2011] FCA 479">subpoena</citphrase>
<citphrase id="cp54.8">citing from="[2011] FCA 479">application to set aside parts of subpoena</citphrase>
<citphrase id="cp54.9">citing from="[2011] FCA 479">relevance of material sought</citphrase>
<citphrase id="cp54.10">citing from="[2011] FCA 479">subpoena set aside  practice and procedure</citphrase>
<citphrase id="cp54.11">citing from="[2011] FCA 479">discovery</citphrase>
<citphrase id="cp54.12">citing from="[2011] FCA 479">application for further discovery</citphrase>
<citphrase id="cp54.13">citing from="[2011] FCA 479">principles relevant to general discovery</citphrase>
<citphrase id="cp54.14">citing from="[2011] FCA 479">federal court rules o 15 r 2  practice and procedure</citphrase>
<citphrase id="cp54.15">citing from="[2011] FCA 479">witness</citphrase>
<citphrase id="cp54.16">citing from="[2011] FCA 479">application to take evidence by video link</citphrase>
<citphrase id="cp54.17">citing from="[2011] FCA 479">requirement to make out a case for such an order to be made</citphrase>
<citphrase id="cp54.18">citing from="[2011] FCA 479">discussion of difficulties associated with video link evidence</citphrase>
<citphrase id="cp55.0">citing from="[2011] NSWSC 254">evidence</citphrase>
<citphrase id="cp55.1">citing from="[2011] NSWSC 254">client legal privilege</citphrase>
<citphrase id="cp55.2">citing from="[2011] NSWSC 254">whether drafts and filenotes of non-privileged communications are privileged</citphrase>
<citphrase id="cp55.3">citing from="[2011] NSWSC 254">whether waived by disclosure</citphrase>
<citphrase id="cp55.4">citing from="[2011] NSWSC 254">whether commercial communications are privileged</citphrase>
<citphrase id="cp55.5">citing from="[2011] NSWSC 254">whether state of mind based on legal advice is part of the plaintiff's case</citphrase>
<citphrase id="cp56.0">citing from="[2011] AATA 215">freedom of information</citphrase>
<citphrase id="cp56.1">citing from="[2011] AATA 215">legal advice</citphrase>
<citphrase id="cp56.2">citing from="[2011] AATA 215">whether exempt on basis privileged from production in legal proceedings on the ground of legal professional privilege</citphrase>
<citphrase id="cp56.3">citing from="[2011] AATA 215">whether subject to privilege</citphrase>
<citphrase id="cp56.4">citing from="[2011] AATA 215">whether privilege expressly or impliedly waived</citphrase>
<citphrase id="cp56.5">citing from="[2011] AATA 215">decision affirmed.    practice and procedure</citphrase>
<citphrase id="cp56.6">citing from="[2011] AATA 215">whether reference may be made to publication of extract from legal advice in government response published in senate hansard</citphrase>
<citphrase id="cp56.7">citing from="[2011] AATA 215">whether subject to parliamentary privilege</citphrase>
<citphrase id="cp56.8">citing from="[2011] AATA 215">purpose for which reference would be made</citphrase>
<citphrase id="cp56.9">citing from="[2011] AATA 215">would be breach of parliamentary privilege.</citphrase>
<citphrase id="cp57.0">citing from="[2011] AATA 188">freedom of information</citphrase>
<citphrase id="cp57.1">citing from="[2011] AATA 188">effect of amendments to foi act on applicable law</citphrase>
<citphrase id="cp57.2">citing from="[2011] AATA 188">whether disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law</citphrase>
<citphrase id="cp57.3">citing from="[2011] AATA 188">whether disclosure of methods would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures</citphrase>
<citphrase id="cp57.4">citing from="[2011] AATA 188">effect of disclosure on proper and efficient conduct of the afp's operations</citphrase>
<citphrase id="cp57.5">citing from="[2011] AATA 188">whether documents subject to legal professional privilege</citphrase>
<citphrase id="cp57.6">citing from="[2011] AATA 188">whether irrelevant matter deleted under s 22</citphrase>
<citphrase id="cp57.7">citing from="[2011] AATA 188">decision affirmed.    practice and procedure</citphrase>
<citphrase id="cp57.8">citing from="[2011] AATA 188">confidential hearing</citphrase>
<citphrase id="cp57.9">citing from="[2011] AATA 188">principles relevant to exercise of discretion</citphrase>
<citphrase id="cp57.10">citing from="[2011] AATA 188">relationship between s 35 aat act and s 63(1) foi act.    practice and procedure</citphrase>
<citphrase id="cp57.11">citing from="[2011] AATA 188">obligation to give reasons</citphrase>
<citphrase id="cp57.12">citing from="[2011] AATA 188">effect of s 63(2)(a) of the foi act on that obligation.    practice and procedure</citphrase>
<citphrase id="cp57.13">citing from="[2011] AATA 188">whether applicant entitled to ask for reasons to be divided according to categories of documents he identified in his request</citphrase>
<citphrase id="cp57.14">citing from="[2011] AATA 188">whether one request or six.</citphrase>
<citphrase id="cp58.0">citing from="[2011] FCA 245">practice and procedure</citphrase>
<citphrase id="cp58.1">citing from="[2011] FCA 245">claim for legal professional privilege</citphrase>
<citphrase id="cp58.2">citing from="[2011] FCA 245">dominant purpose test</citphrase>
<citphrase id="cp58.3">citing from="[2011] FCA 245">documents brought into existence for multiple purposes within a corporate group</citphrase>
<citphrase id="cp58.4">citing from="[2011] FCA 245">whether separate purposes among members of the group</citphrase>
<citphrase id="cp58.5">citing from="[2011] FCA 245">whether one purpose foreign to company claiming the privilege</citphrase>
<citphrase id="cp58.6">citing from="[2011] FCA 245">whether dominant purpose test satisfied in the circumstances</citphrase>
<citphrase id="cp59.0">citing from="[2011] AATA 147">freedom of information</citphrase>
<citphrase id="cp59.1">citing from="[2011] AATA 147">access to documents</citphrase>
<citphrase id="cp59.2">citing from="[2011] AATA 147">whether subject documents could not be found or do not exist</citphrase>
<citphrase id="cp59.3">citing from="[2011] AATA 147">whether subject documents exempt on grounds of legal professional privilege or irrelevance</citphrase>
<citphrase id="cp59.4">citing from="[2011] AATA 147">whether all reasonable steps taken to locate subject documents</citphrase>
<citphrase id="cp59.5">citing from="[2011] AATA 147">whether failure to properly identify requested documents</citphrase>
<citphrase id="cp59.6">citing from="[2011] AATA 147">whether respondent estopped from claiming documents exempt by virtue of universal declaration of policy by respondent</citphrase>
<citphrase id="cp59.7">citing from="[2011] AATA 147">whether waiver of legal professional privilege</citphrase>
<citphrase id="cp60.0">citing from="[2010] VSC 403">practice and procedure</citphrase>
<citphrase id="cp60.1">citing from="[2010] VSC 403">legal professional privilege</citphrase>
<citphrase id="cp60.2">citing from="[2010] VSC 403">legal advice privilege</citphrase>
<citphrase id="cp60.3">citing from="[2010] VSC 403">adequacy of material in support</citphrase>
<citphrase id="cp60.4">citing from="[2010] VSC 403">waiver.</citphrase>
<citphrase id="cp61.0">citing from="[2010] FCA 950">privilege</citphrase>
<citphrase id="cp61.1">citing from="[2010] FCA 950">legal professional privilege</citphrase>
<citphrase id="cp61.2">citing from="[2010] FCA 950">whether in-house lawyer is an independent legal adviser</citphrase>
<citphrase id="cp61.3">citing from="[2010] FCA 950">nature of requirement of independence</citphrase>
<citphrase id="cp61.4">citing from="[2010] FCA 950">in-house lawyer independent and communications with him capable of being privileged</citphrase>
<citphrase id="cp61.5">citing from="[2010] FCA 950">rich v harrington distinguished and questioned</citphrase>
<citphrase id="cp62.0">citing from="[2010] AATA 649">freedom of information</citphrase>
<citphrase id="cp62.1">citing from="[2010] AATA 649">exemptions under ss 36, 37(1)(b), 37(2)(b), 40(1)(d), 42 and 45</citphrase>
<citphrase id="cp62.2">citing from="[2010] AATA 649">decision varied.    freedom of information</citphrase>
<citphrase id="cp62.3">citing from="[2010] AATA 649">deletion of exempt matter under s 22</citphrase>
<citphrase id="cp62.4">citing from="[2010] AATA 649">what is possible</citphrase>
<citphrase id="cp62.5">citing from="[2010] AATA 649">what is reasonably practicable</citphrase>
<citphrase id="cp62.6">citing from="[2010] AATA 649">material not deleted.    freedom of information</citphrase>
<citphrase id="cp62.7">citing from="[2010] AATA 649">whether searches for requested documents adequate</citphrase>
<citphrase id="cp62.8">citing from="[2010] AATA 649">relevance of record keeping practices and procedures in considering adequacy</citphrase>
<citphrase id="cp62.9">citing from="[2010] AATA 649">relevance of logical flow of documents in the file and against the events to which they relate in considering adequacy</citphrase>
<citphrase id="cp62.10">citing from="[2010] AATA 649">searches adequate.    practice and procedure</citphrase>
<citphrase id="cp62.11">citing from="[2010] AATA 649">whether possible to review decision relating to approximately 3,500 pages by reference to samples</citphrase>
<citphrase id="cp62.12">citing from="[2010] AATA 649">consideration of merits review and tribunal's powers and duties</citphrase>
<citphrase id="cp62.13">citing from="[2010] AATA 649">sampling rejected.    practice and procedure</citphrase>
<citphrase id="cp62.14">citing from="[2010] AATA 649">whether applicant permitted to withdraw part of application</citphrase>
<citphrase id="cp62.15">citing from="[2010] AATA 649">not permitted but tribunal has power to affirm that part of the decision.    practice and procedure</citphrase>
<citphrase id="cp62.16">citing from="[2010] AATA 649">limits on the use that parties may make of documents lodged in the tribunal and summonsed</citphrase>
<citphrase id="cp62.17">citing from="[2010] AATA 649">differences between lodgement and production on summons</citphrase>
<citphrase id="cp62.18">citing from="[2010] AATA 649">limits on use that may be made of material produced on summons removed if admitted in evidence .    practice and procedure</citphrase>
<citphrase id="cp62.19">citing from="[2010] AATA 649">stay of operation of decision</citphrase>
<citphrase id="cp62.20">citing from="[2010] AATA 649">source of power</citphrase>
<citphrase id="cp62.21">citing from="[2010] AATA 649">whether s 41(2) or s 43(5b) of the aat act is appropriate source</citphrase>
<citphrase id="cp62.22">citing from="[2010] AATA 649">s 43(5b) is the appropriate and only source of power.</citphrase>
<citphrase id="cp63.0">citing from="[2010] FCA 863">practice and procedure</citphrase>
<citphrase id="cp63.1">citing from="[2010] FCA 863">discovery</citphrase>
<citphrase id="cp64.0">citing from="[2010] FCA 553">administrative law</citphrase>
<citphrase id="cp64.1">citing from="[2010] FCA 553">whether certain decisions and instruments made by the australian crime commission were invalid because the commission and its board failed to comply with relevant statutory provisions governing the making of those decisions and instruments</citphrase>
<citphrase id="cp64.2">citing from="[2010] FCA 553">decisions and instruments held to be valid</citphrase>
<citphrase id="cp64.3">citing from="[2010] FCA 553">whether certain documents seized during the execution of a search warrant were protected from disclosure by legal professional privilege</citphrase>
<citphrase id="cp64.4">citing from="[2010] FCA 553">legal professional privilege attached to some documents (but not all)</citphrase>
<citphrase id="cp64.5">citing from="[2010] FCA 553">in respect of those documents originally protected by privilege, privilege held to have been waived</citphrase>
<citphrase id="cp65.0">citing from="[2010] TASSC 14">procedure</citphrase>
<citphrase id="cp65.1">citing from="[2010] TASSC 14">discovery and interrogation</citphrase>
<citphrase id="cp65.2">citing from="[2010] TASSC 14">production and inspection</citphrase>
<citphrase id="cp65.3">citing from="[2010] TASSC 14">grounds for resisting production</citphrase>
<citphrase id="cp65.4">citing from="[2010] TASSC 14">legal professional privilege</citphrase>
<citphrase id="cp65.5">citing from="[2010] TASSC 14">waiver of privilege.</citphrase>
<citphrase id="cp66.0">citing from="[2009] WAIRComm 1360">in ampolex ltd a statement that: '[o]n the basis of legal advice received, ampolex believes it will be successful in the convertible note litigation', did not purport to state the advice or its substance or effects (18). when this statement is compared to the statement about the conversion ratio set out in the reasons by wheeler j in temwood holdings pty ltd , it is apparent that the statement about the conversion ratio did disclose the substance or effect of the legal advice as it stated a conclusion given in legal advice. the former statement by ampolex however did not disclose any advice or the effect of advice but was simply a statement by ampolex about its own assessment of prospects of the litigation in question. in this matter it is apparent from reading paragraphs 2. to 8. of the report that part of the legal advice to the intervener has not only been referred to but been disclosed. for example, paragraph 3. commences with the words: '[t]he advice that has been received concludes that'. these words are followed by a stated conclusion. also in paragraphs 5. and 6. it is clear that the substance of at least part of the legal advice has been disclosed by the use of the words in each case: '[w]e are advised that the', and a statement of consequence that follows, which are purported statements of legal effect. despite the fact that the substance of at least part of the legal advice has been disclosed by the intervener to the applicants it does not necessarily follow that legal privilege has been waived. disclosure of a conclusion expressed in legal advice may or may not result in waiver of privilege. it depends upon the consideration of the whole of the context in which that occurs. in secretary to the department of justice v osland ( osland ca) [2007] vsca 96 , maxwell p of the victorian court of appeal explained at [63]</citphrase>
<citphrase id="cp66.1">citing from="[2009] WAIRComm 1360">[67]: amongst the circumstances relevant to determining inconsistency, it is clear from carnell and bennett that the purpose for which the privilege-holder made the disclosure is highly relevant. the question here was whether the use made by the minister of the disclosed portion of the privileged communication</citphrase>
<citphrase id="cp66.2">citing from="[2009] WAIRComm 1360">more particularly, the purpose for which the conclusion was disclosed</citphrase>
<citphrase id="cp66.3">citing from="[2009] WAIRComm 1360">was inconsistent with the maintenance of confidentiality in respect of the content of the advice. first it is necessary to restate the purpose of the confidentiality which the privilege preserves. in grant v downs , stephen, mason and murphy jj said: 'the rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. this it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor.' [1976] hca 63 ; (1976) 135 clr 674 at 685. later, in baker v campbell , mason j noted that the underlying policy of the privilege covering legal advice</citphrase>
<citphrase id="cp66.4">citing from="[2009] WAIRComm 1360">'involved the promotion of freedom of consultation generally between lawyer and client.' [1983] hca 39 ; (1983) 153 clr 52 at 74. in the same case, deane j said that the principle underlying the privilege was that</citphrase>
<citphrase id="cp66.5">citing from="[2009] WAIRComm 1360">'a person should be entitled to seek and obtain legal advice without the apprehension of being prejudiced by the subsequent disclosure of confidential communications.'  the evident purpose of the attorney-general's disclosure was to inform the public that the recommendation he had made to the governor</citphrase>
<citphrase id="cp66.6">citing from="[2009] WAIRComm 1360">that the petition for mercy be denied</citphrase>
<citphrase id="cp66.7">citing from="[2009] WAIRComm 1360">was based on independent legal advice, advice which recommended that each ground advanced in the petition should be rejected. the attorney-general evidently wished it to be known that, in considering whether or not the prerogative of mercy should be exercised, he had taken independent advice and was making a recommendation which accorded with that advice. in the language of carnell , this was a disclosure 'for the purpose of explaining or justifying' the attorney-general's actions. the purpose was similar to that of the disclosure in carnell itself, where the chief minister wished to satisfy the relevant member of parliament that the act government 'had acted responsibly and in accordance with legal advice'. in my opinion, there was no inconsistency between disclosing the fact of, and the conclusions of, the independent advice for that purpose, and wishing to maintain the confidentiality of the advice itself. this was not a case of a party to litigation 'deploying' a partial disclosure for forensic advantage, while seeking unfairly to deny the other party an opportunity to see the full text of the privileged communication. nor was it 'the laying open of the confidential communication to necessary scrutiny'. (approved on appeal in osland v secretary to the department of justice ( osland hca) (2008) 234 clr 275 ; 249 alr 1 ; [2008] hca 37)  to constitute waiver, the conduct of the party entitled to the privilege must be judged inconsistent with the maintenance of the confidentiality which the privilege is intended to protect: osland hca [45]. in considering this issue it is relevant to consider the purpose of disclosing the advice and the element of fairness. whether a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality will depend upon the circumstances of the case. questions of waiver are matters of fact and degree: osland hca [49]; nine films and television pty ltd v ninox television ltd [2005] fca 356 ; (2005) 65 ipr 442 [26]. the report discloses part of the substance of advice that is confidential. whilst there is nothing before me to suggest that the report was disclosed for the purpose of obtaining an unfair advantage, could it be said that it is unfair that only part of the legal advice has been disclosed? as mason and brennan jj in maurice explained, fairness usually requires that where one part of a communication has been waived, waiver should result in the disclosure of the whole of the communication so that the opposing litigant is not mislead by an inaccurate perception (487</citphrase>
<citphrase id="cp66.8">citing from="[2009] WAIRComm 1360">488) (applied by in goldberg v ng [1995] hca 39 ; (1995) 185 clr 83 , 96 deane, dawson, gaudron jj): an implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege. the holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. professor wigmore explains: 'when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. he cannot be allowed, after disclosing as much as he pleases, to withhold the remainder' (wigmore: evidence in trials at common law (1961) vol 8, par 2327, p 636). in order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject matter: see great atlantic insurance co . a copy of the report was provided to the applicants sometime in august 2007. the report was provided to the applicants prior to the meeting of the sstuwa executive on 14 september 2007 which was also prior to the meeting of the state council of the sstuwa on 17 november 2007 at which the decision of the sstuwa executive to dismiss the applicants was endorsed. during oral submissions mr sharpe, however, informed the commission (without objection) that copies of letters from the then president of the intervener to the applicants which were referred to in the report were not provided to the applicants until after the meeting of the executive. the intervener says that the report was provided to the applicants to provide them with procedural fairness as their position was affected. other than obvious fact that the applicants are unable to judge (in the absence of an examination of the legal advice) whether the statements about the advice in the report are accurate or complete, no issue of unfairness to the applicants appears to arise in this matter. on the other hand, the fact that part of the legal advice was disclosed with the purpose of providing procedural fairness to the applicants can be said to raise fairness in favour of the applicants. in providing a copy of the report has the intervener acted inconsistently with the maintenance of the confidentiality which the privilege protects? in my opinion the answer is no, as the purpose for which the portion of legal advice was disclosed was not inconsistent with the maintenance of confidentiality. in osland the attorney-general disclosed in a press statement that he had made a recommendation to the governor that a petition of mercy be denied and his recommendation was based on independent legal advice. maxwell p in osland ca considered this to be a disclosure 'for the purpose of explaining or justifying' the attorney-general's actions. he found there was no inconsistency between disclosing the fact of, and the conclusions of, the independent advice for that purpose, with wishing to maintain the confidentiality of the advice itself. on appeal to the high court, gleeson cj, gummow, heydon and kiefel jj in osland hca stated in conclusion that the reasoning of maxwell p was correct [50]. kirby j in his separate judgment also agreed there had been no waiver and found the purpose of issuing a press statement was compatible with non-disclosure as the purpose of issuing the press statement was to show the state had taken a proper course in obtaining and considering advice [97]-[98]. the purpose of providing a copy of the report was to provide to the applicants the basis on which the executive acted to make the resolutions to dismiss the applicants in each case from the office as a district delegate to state council. as it is not in dispute that this was done in the interests of natural justice as the position of the applicants were affected, the provision of the copy of the report to the applicants can not be said to be inconsistent with the confidentiality of the privilege as it can not be said that the report was provided to advance a forensic purpose or any other purpose to disadvantage the applicants. for these reasons the applicants' application to set aside legal privilege will be dismissed.</citphrase>
<citphrase id="cp67.0">citing from="[2009] VCAT 2770">vcat reference no. g822/2009 general list; freedom of information act 1982 ; documents relative to conciliation under accident compensation act 1985 ; exemption claimed under section 32(1) ; whether documents subject to fraud exemption to legal professional privilege; whether exemption should be overriden in public interest; section 50(4)  applicants anthony and sue smeaton respondent victorian workcover authority</citphrase>
<citphrase id="cp67.1">citing from="[2009] VCAT 2770">foi where held melbourne before m.f. macnamara, deputy president hearing type hearing date of hearing 22 december 2009 date of order 22 december 2009 citation smeaton v victorian workcover authority (general) [2009] vcat 2770</citphrase>
<citphrase id="cp68.0">citing from="[2009] FCA 1518">practice and procedure</citphrase>
<citphrase id="cp68.1">citing from="[2009] FCA 1518">application for leave to cross-examine deponent of affidavit of discovery and for orders for further and better discovery, production of documents and particular discovery</citphrase>
<citphrase id="cp68.2">citing from="[2009] FCA 1518">where proceedings had not commenced</citphrase>
<citphrase id="cp68.3">citing from="[2009] FCA 1518">whether o 15, r 8 of the federal court rules applies to o 15a r 6</citphrase>
<citphrase id="cp68.4">citing from="[2009] FCA 1518">whether affidavit of discovery insufficient    held</citphrase>
<citphrase id="cp68.5">citing from="[2009] FCA 1518">application allowed in part</citphrase>
<citphrase id="cp68.6">citing from="[2009] FCA 1518">order for further affidavit of discovery but no order for cross-examination</citphrase>
<citphrase id="cp68.7">citing from="[2009] FCA 1518">order for production of documents the subject of a claim for privilege</citphrase>
<citphrase id="cp68.8">citing from="[2009] FCA 1518">reasonable grounds for being fairly certain that other relevant documents exist</citphrase>
<citphrase id="cp68.9">citing from="[2009] FCA 1518">insufficiency of affidavit of discovery appeared on its face.</citphrase>
<citphrase id="cp69.0">citing from="[2009] FCA 1293">practice  procedure</citphrase>
<citphrase id="cp69.1">citing from="[2009] FCA 1293">legal professional privilege</citphrase>
<citphrase id="cp69.2">citing from="[2009] FCA 1293">whether the relevant documents were brought into existence for the dominant purpose of gaining or obtaining legal advice</citphrase>
<citphrase id="cp69.3">citing from="[2009] FCA 1293">the relevant documents are not the subject of legal professional privilege.</citphrase>
<citphrase id="cp70.0">citing from="[2009] QSC 361">(second respondent) file no: 4969 of 2009 division: trial division proceeding: application originating court: supreme court of queensland delivered on: 12 november 2009 delivered at: brisbane hearing date: 4 november 2009 judge: applegarth j order: the first respondent provide to dr gilmore or otherwise make reasonably available for inspection by dr gilmore within seven days all submissions, reports, correspondence, photographs or memoranda made or prepared by or on behalf of the first respondent and submitted to the department of mines and energy concerning the incident which occurred on 7 december 2008 more particularly described in the affidavit of adam charles butson filed herein on 21 october 2009, and in particular, provide to dr gilmore or otherwise make reasonably available to him a copy of the incident report provided to the department of mines and energy by the first respondent on 4 february 2009, including the annexures to the said report. the first respondent pay the applicant's costs of and incidental to the application. the first respondent pay the second respondent's costs of and incidental to the application.  procedure</citphrase>
<citphrase id="cp70.1">citing from="[2009] QSC 361">discovery and interrogatories</citphrase>
<citphrase id="cp70.2">citing from="[2009] QSC 361">discovery and inspection of documents</citphrase>
<citphrase id="cp70.3">citing from="[2009] QSC 361">production and inspection</citphrase>
<citphrase id="cp70.4">citing from="[2009] QSC 361">grounds for resisting production</citphrase>
<citphrase id="cp70.5">citing from="[2009] QSC 361">legal professional privilege</citphrase>
<citphrase id="cp70.6">citing from="[2009] QSC 361">waiver of privilege</citphrase>
<citphrase id="cp70.7">citing from="[2009] QSC 361">where damage was caused to a dragline and a crane</citphrase>
<citphrase id="cp70.8">citing from="[2009] QSC 361">where the department of mines and energy seized the crane and investigated the incident to determine its cause</citphrase>
<citphrase id="cp70.9">citing from="[2009] QSC 361">where supplier of the crane prepares an incident report for its legal representatives and for the purpose of the department's investigations</citphrase>
<citphrase id="cp70.10">citing from="[2009] QSC 361">where the report was provided to the department without a formal directive to produce it and to achieve the release of the crane from seizure</citphrase>
<citphrase id="cp70.11">citing from="[2009] QSC 361">where the applicant requests the report so that a report on why the incident occurred can be completed by a court-appointed expert</citphrase>
<citphrase id="cp70.12">citing from="[2009] QSC 361">whether the incident report was created for the dominant purpose of submission to legal advisers or for use in legal proceedings</citphrase>
<citphrase id="cp70.13">citing from="[2009] QSC 361">whether any legal professional privilege had been impliedly waived by conduct inconsistent with the privilege coal mining safety and health act 1999 (qld), s 159</citphrase>
<citphrase id="cp71.0">citing from="[2009] QSC 219">the stay on the notice of non-party disclosure directed to mr mott is lifted only in respect of those documents on his file which were created, or are dated, in the period 25 may 2007</citphrase>
<citphrase id="cp71.1">citing from="[2009] QSC 219">28 may 2007 (inclusive);  the documents referred to in order 1 be produced for inspection within seven days;  mr mott's objection to production of documents on his file is otherwise upheld;  each party pay its own costs of and incidental to this application.  procedure</citphrase>
<citphrase id="cp71.2">citing from="[2009] QSC 219">discovery and interrogatories</citphrase>
<citphrase id="cp71.3">citing from="[2009] QSC 219">discovery and inspection of documents</citphrase>
<citphrase id="cp71.4">citing from="[2009] QSC 219">production and inspection</citphrase>
<citphrase id="cp71.5">citing from="[2009] QSC 219">generally</citphrase>
<citphrase id="cp71.6">citing from="[2009] QSC 219">documents in possession of person not a party</citphrase>
<citphrase id="cp71.7">citing from="[2009] QSC 219">where the defendant issued a notice of non-party disclosure to the plaintiff's former solicitor seeking the production of a particular file of documents</citphrase>
<citphrase id="cp71.8">citing from="[2009] QSC 219">where the entire file relating to the negotiations culminating in the preparation of an agreement between the parties was sought</citphrase>
<citphrase id="cp71.9">citing from="[2009] QSC 219">where the plaintiff's former solicitor objected to producing the file on the basis it that many of the documents on the file were not directly relevant to an allegation in issue in the pleadings and were subject to legal professional privilege</citphrase>
<citphrase id="cp71.10">citing from="[2009] QSC 219">whether the documents were protected by privilege</citphrase>
<citphrase id="cp71.11">citing from="[2009] QSC 219">whether there had been an implied waiver of privilege</citphrase>
<citphrase id="cp73.0">citing from="[2009] WASC 150">practice and procedure</citphrase>
<citphrase id="cp73.1">citing from="[2009] WASC 150">discovery</citphrase>
<citphrase id="cp73.2">citing from="[2009] WASC 150">privilege</citphrase>
<citphrase id="cp73.3">citing from="[2009] WASC 150">application for inspection</citphrase>
<citphrase id="cp73.4">citing from="[2009] WASC 150">whether documents are the subject of legal professional privilege</citphrase>
<citphrase id="cp73.5">citing from="[2009] WASC 150">advice privilege</citphrase>
<citphrase id="cp73.6">citing from="[2009] WASC 150">turns on own facts</citphrase>
<citphrase id="cp74.0">citing from="[2009] FMCAfam 595">family law</citphrase>
<citphrase id="cp74.1">citing from="[2009] FMCAfam 595">property</citphrase>
<citphrase id="cp74.2">citing from="[2009] FMCAfam 595">legal professional privilege</citphrase>
<citphrase id="cp74.3">citing from="[2009] FMCAfam 595">whether privilege has been waived by disclosure waiver</citphrase>
<citphrase id="cp74.4">citing from="[2009] FMCAfam 595">whether privilege has been waived by issue waiver.</citphrase>
<citphrase id="cp75.0">citing from="[2008] VSC 547">evidence</citphrase>
<citphrase id="cp75.1">citing from="[2008] VSC 547">legal professional privilege</citphrase>
<citphrase id="cp75.2">citing from="[2008] VSC 547">waiver</citphrase>
<citphrase id="cp75.3">citing from="[2008] VSC 547">instructions to solicitor</citphrase>
<citphrase id="cp75.4">citing from="[2008] VSC 547">identification of instructions does not constitute waiver</citphrase>
<citphrase id="cp75.5">citing from="[2008] VSC 547">solicitor's notes of meeting with third party</citphrase>
<citphrase id="cp75.6">citing from="[2008] VSC 547">privileged communications.</citphrase>
<citphrase id="cp75.7">citing from="[2008] VSC 547">judge : forrest j where held : melbourne date of hearing : 10-14, 17-21, 24-28 november and 1 december 2008 date of ruling : 11 november 2008 case may be cited as : french v triple m melbourne pty limited  ors ruling (no.1) medium neutral citation : [2008] vsc 547</citphrase>
<citphrase id="cp75.8">citing from="[2008] VSC 547">evidence</citphrase>
<citphrase id="cp75.9">citing from="[2008] VSC 547">legal professional privilege</citphrase>
<citphrase id="cp75.10">citing from="[2008] VSC 547">waiver</citphrase>
<citphrase id="cp75.11">citing from="[2008] VSC 547">instructions to solicitor</citphrase>
<citphrase id="cp75.12">citing from="[2008] VSC 547">identification of instructions does not constitute waiver</citphrase>
<citphrase id="cp75.13">citing from="[2008] VSC 547">solicitor's notes of meeting with third party</citphrase>
<citphrase id="cp75.14">citing from="[2008] VSC 547">privileged communications.</citphrase>
<citphrase id="cp76.0">citing from="[2008] VSC 464">practice and procedure</citphrase>
<citphrase id="cp76.1">citing from="[2008] VSC 464">appeal from master</citphrase>
<citphrase id="cp76.2">citing from="[2008] VSC 464">discovery</citphrase>
<citphrase id="cp76.3">citing from="[2008] VSC 464">production of discovered documents</citphrase>
<citphrase id="cp76.4">citing from="[2008] VSC 464">whether parts of discovered documents may be masked for confidentiality and irrelevance</citphrase>
<citphrase id="cp76.5">citing from="[2008] VSC 464">whether parts may be masked for legal professional privilege</citphrase>
<citphrase id="cp76.6">citing from="[2008] VSC 464">whether further discovery ordered under rule 29.08 of rules of supreme court.</citphrase>
<citphrase id="cp77.0">citing from="[2008] QSC 193">(cross-defendants) file no/s: 6462 of 2006 division: trial division proceeding: application originating court: supreme court of queensland delivered on: 1 september 2008 delivered at: brisbane hearing date: 6 august 2008 judge: daubney j order: i declare that the notice of non party disclosure issued on 23 june 2008 to the respondent, eagar  buck patent attorneys, be taken to be effectual i order that the respondent produce to the applicants within seven days of today the documents over which the respondent has otherwise claimed privilege pursuant to s 200(2) of the patents act 1990 (cth) i further order that the applicants pay the respondent's costs of and incidental to this application (including any reserved costs)  procedure</citphrase>
<citphrase id="cp77.1">citing from="[2008] QSC 193">discovery and interrogatories</citphrase>
<citphrase id="cp77.2">citing from="[2008] QSC 193">discovery and inspection of documents</citphrase>
<citphrase id="cp77.3">citing from="[2008] QSC 193">production and inspection</citphrase>
<citphrase id="cp77.4">citing from="[2008] QSC 193">grounds for resisting production</citphrase>
<citphrase id="cp77.5">citing from="[2008] QSC 193">legal professional privilege</citphrase>
<citphrase id="cp77.6">citing from="[2008] QSC 193">particular cases</citphrase>
<citphrase id="cp77.7">citing from="[2008] QSC 193">where notice of non party disclosure given under uniform civil procedure rules 1999 (ucpr) r 242</citphrase>
<citphrase id="cp77.8">citing from="[2008] QSC 193">where respondents claim privilege under s 200(2) of patents act 1990 (cth)</citphrase>
<citphrase id="cp77.9">citing from="[2008] QSC 193">where applicants allege communications with the respondent were for the purpose of furthering an improper purpose</citphrase>
<citphrase id="cp77.10">citing from="[2008] QSC 193">whether the documents over which the respondent claimed privilege should be disclosed procedure</citphrase>
<citphrase id="cp77.11">citing from="[2008] QSC 193">discovery and interrogatories</citphrase>
<citphrase id="cp77.12">citing from="[2008] QSC 193">discovery and inspection of documents</citphrase>
<citphrase id="cp77.13">citing from="[2008] QSC 193">production and inspection</citphrase>
<citphrase id="cp77.14">citing from="[2008] QSC 193">documents in possession of person not a party</citphrase>
<citphrase id="cp77.15">citing from="[2008] QSC 193">where documents sought pursuant to notice of non party disclosure under ucpr r 242</citphrase>
<citphrase id="cp77.16">citing from="[2008] QSC 193">where notice referred to numbered paragraphs and enclosed copies of the pleadings</citphrase>
<citphrase id="cp77.17">citing from="[2008] QSC 193">whether notice complied with ucpr r 243 patents act 1990 (cth)</citphrase>
<citphrase id="cp78.0">citing from="[2008] NSWCA 26">administrative law</citphrase>
<citphrase id="cp78.1">citing from="[2008] NSWCA 26">freedom of information</citphrase>
<citphrase id="cp78.2">citing from="[2008] NSWCA 26">access to documents</citphrase>
<citphrase id="cp78.3">citing from="[2008] NSWCA 26">exempt documents</citphrase>
<citphrase id="cp78.4">citing from="[2008] NSWCA 26">whether documents exempt from production by reason of legal professional privilege</citphrase>
<citphrase id="cp78.5">citing from="[2008] NSWCA 26">sufficiency of proof of prima facie privilege</citphrase>
<citphrase id="cp78.6">citing from="[2008] NSWCA 26">whether non-disclosure of exempt matter constitutes breach of procedural fairness</citphrase>
<citphrase id="cp78.7">citing from="[2008] NSWCA 26">s 55 freedom of information act 1989</citphrase>
<citphrase id="cp78.8">citing from="[2008] NSWCA 26">whether documents produced for improper purpose</citphrase>
<citphrase id="cp78.9">citing from="[2008] NSWCA 26">whether sufficient evidence to raise prima facie case of improper purpose</citphrase>
<citphrase id="cp78.10">citing from="[2008] NSWCA 26">whether administrative decisions tribunal appeal panel erroneously made a finding that there was no evidence of improper purpose</citphrase>
<citphrase id="cp78.11">citing from="[2008] NSWCA 26">whether appeal panel erred in law in declining to remit matter to tribunal in circumstances where tribunal had made an error of law</citphrase>
<citphrase id="cp78.12">citing from="[2008] NSWCA 26">sufficiency of reasons of administrative decisions tribunal and appeal panelprocedure</citphrase>
<citphrase id="cp78.13">citing from="[2008] NSWCA 26">supreme court procedure</citphrase>
<citphrase id="cp78.14">citing from="[2008] NSWCA 26">whether leave required to appeal from decision of administrative decisions tribunal appeal panel</citphrase>
<citphrase id="cp78.15">citing from="[2008] NSWCA 26">whether decision of appeal panel was an interlocutory or final decision</citphrase>
<citphrase id="cp78.16">citing from="[2008] NSWCA 26">s 119(1a) administrative decisions tribunal act 1997 statutes</citphrase>
<citphrase id="cp78.17">citing from="[2008] NSWCA 26">interpretation</citphrase>
<citphrase id="cp78.18">citing from="[2008] NSWCA 26">whether legal professional privilege exemption in legislation should be construed narrowly</citphrase>
<citphrase id="cp78.19">citing from="[2008] NSWCA 26">sch 1, cl 10(1) freedom of information act 1989</citphrase>
<citphrase id="cp78.20">citing from="[2008] NSWCA 26">meaning of "from production in legal proceedings"</citphrase>
<citphrase id="cp78.21">citing from="[2008] NSWCA 26">whether exemption should be upheld only in circumstances where claim of privilege would be upheld by a court in legal proceedings</citphrase>
<citphrase id="cp78.22">citing from="[2008] NSWCA 26">application of "general policy of disclosure" enshrined in act to construction of exemptions contained in act</citphrase>
<citphrase id="cp78.23">citing from="[2008] NSWCA 26">distinction between procedural and evidentiary rules within which court determines whether matter has characteristics needed to make it privileged from production and the characteristics required of privileged documents statutes</citphrase>
<citphrase id="cp78.24">citing from="[2008] NSWCA 26">interpretation</citphrase>
<citphrase id="cp78.25">citing from="[2008] NSWCA 26">construction of acts forming scheme of legislation</citphrase>
<citphrase id="cp78.26">citing from="[2008] NSWCA 26">proper to have regard to each act for the purpose of construing expressions used in any one of them</citphrase>
<citphrase id="cp78.27">citing from="[2008] NSWCA 26">s 73 administrative decisions tribunal act 1997 , sch 1, cl 10(1) freedom of information act 1989 evidence</citphrase>
<citphrase id="cp78.28">citing from="[2008] NSWCA 26">witnesses</citphrase>
<citphrase id="cp78.29">citing from="[2008] NSWCA 26">whether effect of decision in jones v dunkel is to compel the drawing of inferences when a witness is not called</citphrase>
<citphrase id="cp80.0">citing from="[2007] FamCA 1444">family law</citphrase>
<citphrase id="cp80.1">citing from="[2007] FamCA 1444">practice and procedure</citphrase>
<citphrase id="cp80.2">citing from="[2007] FamCA 1444">application</citphrase>
<citphrase id="cp80.3">citing from="[2007] FamCA 1444">dismissal</citphrase>
<citphrase id="cp80.4">citing from="[2007] FamCA 1444">disclosure of information</citphrase>
<citphrase id="cp81.0">citing from="[2007] QSC 309">(defendant) file no: 5708/06 division: trial division proceeding: application originating court: supreme court, brisbane delivered on: 29 october 2007 delivered at: supreme court, brisbane hearing date: 31 may 2007 judge: douglas j order: paragraph 2 of the application is dismissed. order the applicant to pay the respondent's costs of and incidental to para. 2 of the application.  procedure</citphrase>
<citphrase id="cp81.1">citing from="[2007] QSC 309">discovery and interrogatories</citphrase>
<citphrase id="cp81.2">citing from="[2007] QSC 309">discovery and inspection of documents</citphrase>
<citphrase id="cp81.3">citing from="[2007] QSC 309">production and inspection</citphrase>
<citphrase id="cp81.4">citing from="[2007] QSC 309">grounds for resisting production</citphrase>
<citphrase id="cp81.5">citing from="[2007] QSC 309">legal professional privilege</citphrase>
<citphrase id="cp81.6">citing from="[2007] QSC 309">waiver of privilege</citphrase>
<citphrase id="cp81.7">citing from="[2007] QSC 309">whether privilege waived by a note in company reports to the asx that the company has received legal advice that it has no liability whatsoever in respect of proceedings brought against it</citphrase>
<citphrase id="cp81.8">citing from="[2007] QSC 309">where report was designed to clarify why the company was treating the claim against it as a contingent liability rather than a provision or liability</citphrase>
<citphrase id="cp81.9">citing from="[2007] QSC 309">whether inconsistent with the confidentiality which the privilege is intended to protect</citphrase>
<citphrase id="cp81.10">citing from="[2007] QSC 309">whether the advice was relevant to the issues in the litigation</citphrase>
<citphrase id="cp81.11">citing from="[2007] QSC 309">whether other documents relevant to the preparation of the advice where privileged evidence act 1995 (nsw) s. 122(2)  attorney-general (nt) v maurice [1986] hca 80; [1986] hca 80 ; (1986) 161 clr 475 , considered</citphrase>
<citphrase id="cp82.0">citing from="[2007] WASC 276">practice and procedure</citphrase>
<citphrase id="cp82.1">citing from="[2007] WASC 276">subpoena</citphrase>
<citphrase id="cp82.2">citing from="[2007] WASC 276">legitimate forensic purpose</citphrase>
<citphrase id="cp82.3">citing from="[2007] WASC 276">whether o 36b provides for a 'subpoena to be returnable other than in relation to a trial'</citphrase>
<citphrase id="cp82.4">citing from="[2007] WASC 276">legal professional privilege</citphrase>
<citphrase id="cp82.5">citing from="[2007] WASC 276">doctrine of implied waiver</citphrase>
<citphrase id="cp82.6">citing from="[2007] WASC 276">turns on own facts</citphrase>
<citphrase id="cp83.0">citing from="[2007] AATA 1841">freedom of information</citphrase>
<citphrase id="cp83.1">citing from="[2007] AATA 1841">exemptions</citphrase>
<citphrase id="cp83.2">citing from="[2007] AATA 1841">legal professional privilege</citphrase>
<citphrase id="cp83.3">citing from="[2007] AATA 1841">documents used by the agency or its officers in making decisions or recommendations</citphrase>
<citphrase id="cp83.4">citing from="[2007] AATA 1841">salaried legal advisers</citphrase>
<citphrase id="cp83.5">citing from="[2007] AATA 1841">inadvertent disclosure</citphrase>
<citphrase id="cp84.0">citing from="[2007] VSC 292">evidence</citphrase>
<citphrase id="cp84.1">citing from="[2007] VSC 292">privilege</citphrase>
<citphrase id="cp84.2">citing from="[2007] VSC 292">legal professional privilege</citphrase>
<citphrase id="cp84.3">citing from="[2007] VSC 292">whether claim for privilege made out</citphrase>
<citphrase id="cp85.0">citing from="[2007] FamCA 786">family law</citphrase>
<citphrase id="cp85.1">citing from="[2007] FamCA 786">evidence</citphrase>
<citphrase id="cp85.2">citing from="[2007] FamCA 786">legal professional privilege asserted over communications with engaged professionals</citphrase>
<citphrase id="cp85.3">citing from="[2007] FamCA 786">need to call evidence to establish dominant purpose of the communications where the circumstances do not appear to obvious to be in the pursuit of legal advice</citphrase>
<citphrase id="cp85.4">citing from="[2007] FamCA 786">waiver of privilege in respect of lawyer's file concerning communication where the other end of the communication is volunteered by non-lawyer</citphrase>
<citphrase id="cp86.0">citing from="[2007] NSWSC 692">lower court date of decision:</citphrase>
<citphrase id="cp86.1">citing from="[2007] NSWSC 692">lower court medium neutral citation:</citphrase>
<citphrase id="cp87.0">citing from="[2007] VSC 113">practice and procedure</citphrase>
<citphrase id="cp87.1">citing from="[2007] VSC 113">discovery</citphrase>
<citphrase id="cp87.2">citing from="[2007] VSC 113">legal professional privilege</citphrase>
<citphrase id="cp87.3">citing from="[2007] VSC 113">whether documents privileged</citphrase>
<citphrase id="cp87.4">citing from="[2007] VSC 113">crime or fraud exception</citphrase>
<citphrase id="cp87.5">citing from="[2007] VSC 113">whether solicitor's files created "in furtherance of" or as part of commission of civil fraud</citphrase>
<citphrase id="cp88.0">citing from="[2007] FCA 477">practice and procedure</citphrase>
<citphrase id="cp88.1">citing from="[2007] FCA 477">orders made for production of categories of documents subject to any claim of legal professional privilege</citphrase>
<citphrase id="cp88.2">citing from="[2007] FCA 477">legal professional privilege claimed</citphrase>
<citphrase id="cp88.3">citing from="[2007] FCA 477">litigation funding agreement</citphrase>
<citphrase id="cp88.4">citing from="[2007] FCA 477">communications between litigation funder and legal adviser</citphrase>
<citphrase id="cp88.5">citing from="[2007] FCA 477">privilege challenged on basis of litigation funder's actions practice and procedure</citphrase>
<citphrase id="cp88.6">citing from="[2007] FCA 477">issue waiver</citphrase>
<citphrase id="cp88.7">citing from="[2007] FCA 477">reason for joining party</citphrase>
<citphrase id="cp88.8">citing from="[2007] FCA 477">applicant not put in issue the contents of any communications made in the lawyer-client relationship</citphrase>
<citphrase id="cp88.9">citing from="[2007] FCA 477">no inconsistency with the maintenance of the privilege practice and procedure</citphrase>
<citphrase id="cp88.10">citing from="[2007] FCA 477">disclosure waiver</citphrase>
<citphrase id="cp88.11">citing from="[2007] FCA 477">disclosed fact of giving instruction to join a third party to proceedings</citphrase>
<citphrase id="cp88.12">citing from="[2007] FCA 477">did not disclose the contents of the instructions</citphrase>
<citphrase id="cp88.13">citing from="[2007] FCA 477">no inconsistency with maintenance of privilege practice and procedure</citphrase>
<citphrase id="cp88.14">citing from="[2007] FCA 477">litigation funder alleged to be pursuing its own interests</citphrase>
<citphrase id="cp88.15">citing from="[2007] FCA 477">while applicant has used litigation funder as agent in the proceedings he still remained the client of the legal representatives for the purposes of conduct of the litigation</citphrase>
<citphrase id="cp88.16">citing from="[2007] FCA 477">funding agreement gave rise to common and several interests</citphrase>
<citphrase id="cp88.17">citing from="[2007] FCA 477">common interest privilege</citphrase>
<citphrase id="cp88.18">citing from="[2007] FCA 477">no prima facie or reasonably arguable case of pursuit of litigation funder's own and paramount purposes practice and procedure</citphrase>
<citphrase id="cp88.19">citing from="[2007] FCA 477">fraud/improper purpose exception</citphrase>
<citphrase id="cp88.20">citing from="[2007] FCA 477">allegation of fraud against the respondent</citphrase>
<citphrase id="cp88.21">citing from="[2007] FCA 477">not shown to be lacking any foundation</citphrase>
<citphrase id="cp88.22">citing from="[2007] FCA 477">communication not made for an improper purpose</citphrase>
<citphrase id="cp89.0">citing from="[2007] NSWSC 258">procedure</citphrase>
<citphrase id="cp89.1">citing from="[2007] NSWSC 258">discovery and inspection of documents</citphrase>
<citphrase id="cp89.2">citing from="[2007] NSWSC 258">grounds for resisting production</citphrase>
<citphrase id="cp89.3">citing from="[2007] NSWSC 258">client legal privilege</citphrase>
<citphrase id="cp89.4">citing from="[2007] NSWSC 258">whether draft expert report, letters of instruction from clients' solicitors to expert witness, and notes prepared for preparation of final report are privileged</citphrase>
<citphrase id="cp89.5">citing from="[2007] NSWSC 258">waiver of privilege</citphrase>
<citphrase id="cp89.6">citing from="[2007] NSWSC 258">whether privilege waived by service of final expert report</citphrase>
<citphrase id="cp89.7">citing from="[2007] NSWSC 258">whether draft reports, letters of instruction and notes influenced content of final report so that use or service of final report inconsistent with maintaining privilege in those materials</citphrase>
<citphrase id="cp89.8">citing from="[2007] NSWSC 258">waiver of privilege by voluntary disclosure</citphrase>
<citphrase id="cp89.9">citing from="[2007] NSWSC 258">held: draft expert report and preliminary letters of instruction from clients' solicitors to expert witness, privileged because created for dominant purpose of plaintiff being provided with legal services</citphrase>
<citphrase id="cp89.10">citing from="[2007] NSWSC 258">privilege not waived. procedure</citphrase>
<citphrase id="cp89.11">citing from="[2007] NSWSC 258">discovery and inspection of documents</citphrase>
<citphrase id="cp89.12">citing from="[2007] NSWSC 258">grounds for resisting production</citphrase>
<citphrase id="cp89.13">citing from="[2007] NSWSC 258">exclusion of evidence of settlement negotiations</citphrase>
<citphrase id="cp89.14">citing from="[2007] NSWSC 258">communication of extract of document made in the course of settlement negotiations</citphrase>
<citphrase id="cp89.15">citing from="[2007] NSWSC 258">held that defendant not entitled to inspect balance of document. considered: evidence act 1995 (cth), ss 117 , 119 , 122 , 126 , 131 (1)procedure</citphrase>
<citphrase id="cp89.16">citing from="[2007] NSWSC 258">discovery and inspection of documents</citphrase>
<citphrase id="cp89.17">citing from="[2007] NSWSC 258">grounds for resisting production</citphrase>
<citphrase id="cp89.18">citing from="[2007] NSWSC 258">relevance</citphrase>
<citphrase id="cp89.19">citing from="[2007] NSWSC 258">documents created during later period reflecting historical financial position of company</citphrase>
<citphrase id="cp89.20">citing from="[2007] NSWSC 258">oppression</citphrase>
<citphrase id="cp89.21">citing from="[2007] NSWSC 258">where process of giving discovery of certain class of documents would be onerous</citphrase>
<citphrase id="cp89.22">citing from="[2007] NSWSC 258">discovery not necessary</citphrase>
<citphrase id="cp89.23">citing from="[2007] NSWSC 258">utility of discovery outweighed by burden</citphrase>
<citphrase id="cp89.24">citing from="[2007] NSWSC 258">discovery not ordered.</citphrase>
<citphrase id="cp90.0">citing from="[2007] NSWSC 230">equity</citphrase>
<citphrase id="cp90.1">citing from="[2007] NSWSC 230">breach of confidence</citphrase>
<citphrase id="cp90.2">citing from="[2007] NSWSC 230">injunction to restrain</citphrase>
<citphrase id="cp90.3">citing from="[2007] NSWSC 230">interim relief</citphrase>
<citphrase id="cp90.4">citing from="[2007] NSWSC 230">injunctions to restrain "use" of information</citphrase>
<citphrase id="cp90.5">citing from="[2007] NSWSC 230">whether "use" injunction should be granted when it might inhibit party in commencing other proceedings</citphrase>
<citphrase id="cp90.6">citing from="[2007] NSWSC 230">whether exception on restraint to permit use to inform recipient's decision to commence other proceedings should be permitted</citphrase>
<citphrase id="cp90.7">citing from="[2007] NSWSC 230">held, it should not</citphrase>
<citphrase id="cp90.8">citing from="[2007] NSWSC 230">whether use injunction granted only where use would involve further dissemination</citphrase>
<citphrase id="cp90.9">citing from="[2007] NSWSC 230">held it is not so limited.jurisdiction</citphrase>
<citphrase id="cp90.10">citing from="[2007] NSWSC 230">cross-vesting</citphrase>
<citphrase id="cp90.11">citing from="[2007] NSWSC 230">transfer of proceedings</citphrase>
<citphrase id="cp90.12">citing from="[2007] NSWSC 230">between supreme courts of states</citphrase>
<citphrase id="cp90.13">citing from="[2007] NSWSC 230">relevant considerations</citphrase>
<citphrase id="cp90.14">citing from="[2007] NSWSC 230">where defendants resident in victoria, cause of action arises in victoria, threatened breach is in victoria, and issues will arise as to conduct of persons involved in previous proceedings in supreme court of victoria</citphrase>
<citphrase id="cp90.15">citing from="[2007] NSWSC 230">held, victoria is the natural forum.</citphrase>
<citphrase id="cp91.0">citing from="[2007] FCA 3">evidence</citphrase>
<citphrase id="cp91.1">citing from="[2007] FCA 3">legal professional privilege</citphrase>
<citphrase id="cp91.2">citing from="[2007] FCA 3">communications including documents placed by applicants or their servants and agents with their legal advisors for the purpose of receiving legal advice on tax and financial matters</citphrase>
<citphrase id="cp91.3">citing from="[2007] FCA 3">principles applicable to claim</citphrase>
<citphrase id="cp91.4">citing from="[2007] FCA 3">objections to affidavit evidence</citphrase>
<citphrase id="cp91.5">citing from="[2007] FCA 3">liberty to file supplementary affidavits of servants and agents in relation to hearsay the subject of objection</citphrase>
<citphrase id="cp91.6">citing from="[2007] FCA 3">opportunity not taken</citphrase>
<citphrase id="cp91.7">citing from="[2007] FCA 3">no discharge of onus on applicants to establish the privilege</citphrase>
<citphrase id="cp92.0">citing from="[2006] NSWSC 1281">practice and procedure</citphrase>
<citphrase id="cp92.1">citing from="[2006] NSWSC 1281">discovery</citphrase>
<citphrase id="cp92.2">citing from="[2006] NSWSC 1281">claim of client legal privilege</citphrase>
<citphrase id="cp92.3">citing from="[2006] NSWSC 1281">report prepared by legally qualified police officer concerning a police internal investigation</citphrase>
<citphrase id="cp92.4">citing from="[2006] NSWSC 1281">whether report created for dominant purpose of giving legal advice</citphrase>
<citphrase id="cp92.5">citing from="[2006] NSWSC 1281">whether separate category of documents concerning police internal investigation are discoverable</citphrase>
<citphrase id="cp93.0">citing from="[2006] FCA 1409">procedure</citphrase>
<citphrase id="cp93.1">citing from="[2006] FCA 1409">discovery and inspection of documents</citphrase>
<citphrase id="cp93.2">citing from="[2006] FCA 1409">legal professional privilege</citphrase>
<citphrase id="cp93.3">citing from="[2006] FCA 1409">where review board obtained and used legal advice</citphrase>
<citphrase id="cp93.4">citing from="[2006] FCA 1409">whether duty to accord procedural fairness precludes the creation of privilege which would otherwise attach</citphrase>
<citphrase id="cp93.5">citing from="[2006] FCA 1409">whether privilege waived by use of the advice in decision-making process</citphrase>
<citphrase id="cp93.6">citing from="[2006] FCA 1409">whether privilege waived by disclosure of advice within the commonwealth or to attorney-general</citphrase>
<citphrase id="cp94.0">citing from="[2006] NSWSC 1108">corporations [105]</citphrase>
<citphrase id="cp94.1">citing from="[2006] NSWSC 1108">officers' duties</citphrase>
<citphrase id="cp94.2">citing from="[2006] NSWSC 1108">whether breach of statutory duty by using confidential information for own purposes</citphrase>
<citphrase id="cp94.3">citing from="[2006] NSWSC 1108">held "yes", but duty no higher than general law</citphrase>
<citphrase id="cp94.4">citing from="[2006] NSWSC 1108">however consequences flow from finding</citphrase>
<citphrase id="cp94.5">citing from="[2006] NSWSC 1108">corporations act, 2001 (cth) ss 182 , 183 , 1317e . equity [34]</citphrase>
<citphrase id="cp94.6">citing from="[2006] NSWSC 1108">fiduciary obligations</citphrase>
<citphrase id="cp94.7">citing from="[2006] NSWSC 1108">employees</citphrase>
<citphrase id="cp94.8">citing from="[2006] NSWSC 1108">covenant to be loyal and keep confidences</citphrase>
<citphrase id="cp94.9">citing from="[2006] NSWSC 1108">employees taking steps whilst still employed, but outside work hours to initiate new rival business to commence when employment terminated</citphrase>
<citphrase id="cp94.10">citing from="[2006] NSWSC 1108">use of some of employer's information to do so</citphrase>
<citphrase id="cp94.11">citing from="[2006] NSWSC 1108">employer traded with brokers</citphrase>
<citphrase id="cp94.12">citing from="[2006] NSWSC 1108">employees intended to trade with brokers' customers directly</citphrase>
<citphrase id="cp94.13">citing from="[2006] NSWSC 1108">whether employees' business competing. evidence [75]</citphrase>
<citphrase id="cp94.14">citing from="[2006] NSWSC 1108">professional legal privilege</citphrase>
<citphrase id="cp94.15">citing from="[2006] NSWSC 1108">legal advice referred to in employees' business plan</citphrase>
<citphrase id="cp94.16">citing from="[2006] NSWSC 1108">as supporting plan</citphrase>
<citphrase id="cp94.17">citing from="[2006] NSWSC 1108">plan annexed to affidavit</citphrase>
<citphrase id="cp94.18">citing from="[2006] NSWSC 1108">production sought of documents recording that advice</citphrase>
<citphrase id="cp94.19">citing from="[2006] NSWSC 1108">whether waiver of privilege</citphrase>
<citphrase id="cp94.20">citing from="[2006] NSWSC 1108">disclosure of "substance" of advice or merely the effect of advice</citphrase>
<citphrase id="cp94.21">citing from="[2006] NSWSC 1108">borderline case</citphrase>
<citphrase id="cp94.22">citing from="[2006] NSWSC 1108">held privilege not waived</citphrase>
<citphrase id="cp94.23">citing from="[2006] NSWSC 1108">evidence act 1995 , s 122(2). intellectual property [112]</citphrase>
<citphrase id="cp94.24">citing from="[2006] NSWSC 1108">confidential information</citphrase>
<citphrase id="cp94.25">citing from="[2006] NSWSC 1108">employer, insurance underwriter of agricultural insurance, holding information as to weather conditions and claims details</citphrase>
<citphrase id="cp94.26">citing from="[2006] NSWSC 1108">information held confidential. words  phrases</citphrase>
<citphrase id="cp94.27">citing from="[2006] NSWSC 1108">"client"</citphrase>
<citphrase id="cp94.28">citing from="[2006] NSWSC 1108">who is client a or b where a submits insurance proposal through b a broker</citphrase>
<citphrase id="cp94.29">citing from="[2006] NSWSC 1108">held, in circumstances, b is client.</citphrase>
<citphrase id="cp95.0">citing from="[2006] FCA 1274">remedies</citphrase>
<citphrase id="cp95.1">citing from="[2006] FCA 1274">declarations</citphrase>
<citphrase id="cp95.2">citing from="[2006] FCA 1274">that documents protected by legal professional privilege</citphrase>
<citphrase id="cp95.3">citing from="[2006] FCA 1274">form of declarations</citphrase>
<citphrase id="cp95.4">citing from="[2006] FCA 1274">whether appropriate to grant declaration that certain documents are privileged and others not</citphrase>
<citphrase id="cp95.5">citing from="[2006] FCA 1274">whether necessary to distinguish between waived documents and documents to which privilege never attached  costs</citphrase>
<citphrase id="cp95.6">citing from="[2006] FCA 1274">discretion to award</citphrase>
<citphrase id="cp95.7">citing from="[2006] FCA 1274">where each party achieved substantial measure of success on certain issues</citphrase>
<citphrase id="cp95.8">citing from="[2006] FCA 1274">no orders as to costs</citphrase>
</citphrases>
<citances>
<sentence from="[2011] WAICmr 31" id="cs0">The principles for the displacement of legal professional privilege due to an illegal or improper purpose can be found in the judgments of the High Court in Kearney and Propend. In Propend, Gaudron J at 545 referred to Dawson J's judgment in Kearney at 528-529, for different formulations of the nature of the wrongdoing which 'displaces' legal professional privilege. These include " a criminal or unlawful act", "an improper or an illegal act", "illegality or fraud or trickery", "crime or civil fraud" and "wrongdoing" --- see also AWB v Cole (No 5) [2006] FCA 1234 at [210] - [212]. Communications made for an illegal purpose, such as an abuse of statutory power, are also not covered by the privilege: see Gibbs CJ in Kearney at 515.
 </sentence>
<sentence from="[2011] WASC 243" id="cs1">19 A voluntary disclosure of privileged documents can result in a waiver of privilege over those documents and associated material: AWB Ltd v Cole (No 5) [2006] FCA 1234 ; (2006) 155 FCR 30 [164]. In AWB v Cole Young J said:

 The test applied to determine the scope of any waiver of associated material is whether the material that the party has chosen to release from privilege represents the whole of the material relevant to the same issue or subject matter [164]. </sentence>
<sentence from="[2011] WASC 220" id="cs2">61 In AWB Ltd v Cole (No 5) [2006] FCA 1234 ; (2006) 155 FCR 30 , 44 - 47 [44], Young J usefully summarised twelve of the established principles. Relevantly to this application, his Honour held that although the onus of proof lies on the Receivers to satisfy the court that the privilege exists, it will usually be sufficient simply to show that a client has consulted a lawyer in Australia concerning a legal problem, and there is nothing controversial about the circumstances in which the client has approached the lawyer: [44](4) citing Kennedy v Wallace [2004] FCAFC 337 ; (2004) 142 FCR 185 , 192 [27] (Black CJ  Emmett J). This may also have been the reason why Owen J suggested that there is an evidentiary onus of proof upon a party challenging an assertion of legal professional privilege to show that the claim is either unfounded or mistaken: Brambles Holdings Ltd v WMC Engineering Services Pty Ltd (1995) 14 WAR 239 , 247 (Kennedy  Rowland JJ not deciding the point: 240, 243).</sentence>
<sentence from="[2011] FCA 938" id="cs3">Alternatively, if the documents were once confidential, Prysmian submitted that they are no longer confidential. Prysmian contended that JPS volunteered information to the ACCC in order to gain a commercial advantage and the provision of information to the ACCC was inconsistent with the preservation of confidentiality: AWB Ltd v Cole (No 5) [2006] FCA 1234 ; (2006) 155 FCR 30 at [152] - [153] per Young J; Seven Network Ltd v News Ltd [2005] FCAFC 125 ; (2005) 144 FCR 379. </sentence>
<sentence from="[2011] VSCA 239" id="cs4">[12]
 The importance of establishing the 'objectives of some person of higher authority,' such as the Chief Executive Officer of Powercor in this case, to identify the purpose or purposes for which the reports were prepared was repeated by Young J in AWB v Cole [13] in a passage that has been cited with approval by our Court of Appeal: [14]
 The purpose for which a document is brought into existence is a question of fact that must be determined objectively. See also Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 , [15]---[16], Finn J citing Barwick CJ in Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 , 677; Liquorland (Australia) Pty Ltd v Anghie (No 2) [2003] VSC 160 ; Commissioner of Taxation v Pratt Holdings [2005] FCA 1247 ; AWB v Cole [2006] FCA 1234 ; (2006) 155 FCR 30.</sentence>
<sentence from="[2011] AATA 556" id="cs5">However, in Commonwealth v Vance [2005] ACTCA 35 ; (2005) 158 ACTR 47 , the Full Court (Gray, Connolly and Tamberlin JJ) did not regard the possession of a current practising certificate as an essential precondition to the availability of legal professional privilege: at [23]-[35]. The same view was taken by Lee J in Candacal [Candacal Pty Ltd v Industry Research and Development Board [143] ] at [99], by Gillard J in Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131 at [111] , and by Downes J in McKinnon v Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365 ; (2004) 86 ALD 780 at [51] . " [144]

84. Justice Young writes of cases having " ... added a requirement that the lawyer who provided that advice must be admitted to practice " and refers first to the judgment of Dawson J. I respectfully disagree with this analysis of the judgment of Dawson J in Waterford . [88]

 B.2 What is legal advice?

41. In Australian Wheat Board v Cole (No 5) [89] ( Cole ), Young J touched on what is encompassed within the expression " legal advice ":

" The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context: but it does not extend to advice that is purely commercial or of a public relations character ... " [90]

 B.3 The privilege may encompass communications with third parties

42. Legal professional privilege protects communications made by both parties to those communications.

41. In Australian Wheat Board v Cole (No 5) [89] ( Cole ), Young J touched on what is encompassed within the expression " legal advice ":

" The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context: but it does not extend to advice that is purely commercial or of a public relations character ... " [90]

 B.3 The privilege may encompass communications with third parties

42. Legal professional privilege protects communications made by both parties to those communications. Therefore, as well as protecting communications made to the client by the legal adviser, it will also protect communications made by the client for the dominant purpose of seeking legal advice:

" ... [L] egal professional privilege extends to notes, memoranda or other documents made by officers or employees of the client that relate to information sought by the client's legal adviser to enable him or her to advise ... Brennan J approached the matter differently but, in my respectful opinion, and contrary to what Branson J seems to have thought ( Rich at [39]), none of the other members of the Court adopted his Honour's approach.

 Thus, with the greatest respect, I doubt that the decision in Waterford requires anything more than that the legal adviser be professionally qualified and acting in a professional capacity. I note that in AWB v Cole (No 5) [2006] FCA 1234 , 234 ALR 651 at 664 [44] , to which her Honour did not refer, Young J considered that the question of independence involved no more than an inquiry into whether the lawyer was consulted in her or his professional legal capacity, although his Honour also pointed out that some cases have added a requirement that the lawyer who provided the advice must be admitted to practice.

 Mercifully, it is not necessary in this case for me to decide whether her Honour was correct in the approach she took. The respondent was content that I decide the matter on the basis of her Honour's formulation, arguing that it was satisfied here. Legal professional privilege protects communications made by both parties to those communications. Therefore, as well as protecting communications made to the client by the legal adviser, it will also protect communications made by the client for the dominant purpose of seeking legal advice:

" ... [L] egal professional privilege extends to notes, memoranda or other documents made by officers or employees of the client that relate to information sought by the client's legal adviser to enable him or her to advise ... The privilege extends to drafts, notes and other material brought into existence by the client for the purpose of communication to the lawyer, whether or not they are themselves actually communicated to the lawyer ... " [91]

43. When Hodgson J decided Standard Chartered Bank of Australia Ltd v Antico , [92] the relevant test was one of sole purpose and not of dominant purpose as it now is. Despite this, his further comment regarding the compass of legal professional privilege remains relevant:

"... It seems to me that the sole purpose is to be applied to the original communication, and then the privilege will normally extend to notes or memoranda of that advice without the necessity of again applying the sole purpose test: however, the purpose of the notes, memoranda or minutes will be relevant in deciding whether they can fairly be described as being records of the legal advice rather than of something else . The disclosures in question here were made variously to the IIC, to the Australian Government, to the Commission and in some instances via the procedures of the Commission to the public at large. In my opinion, there is no reason why these disclosures cannot support a finding that AWB has waived legal professional privilege over associated material. " [204]

129. When the client is a statutory body acting independently of the State or Commonwealth, any legal professional privilege that the statutory body may claim may be claimed by the State or Commonwealth in all its emanations. Therefore, for example, the privilege that the Office of Film and Literature Classification had over documents brought into existence for the dominant purpose of obtaining legal advice regarding the exercise of its statutory powers was equally that of the Commonwealth in all of its emanations. I will return to that below but, [104] assuming that is the case and that:

"... communications take place between a client and his or her independent legal advisers, or between a client's in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications .... In Kennedy v Wallace , [ [105] ] Black CJ and Emmett J inclined to the view that in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given.

 ... " [106]

55. Where these matters are in dispute, the party claiming legal professional privilege must establish it on the balance of probabilities. That is no different in the context of a claim for exemption under s 42 of the FOI Act for s 61(1) provides that the agency or Minister has the onus or burden of establishing that the decision was justified.</sentence>
<sentence from="[2011] VSC 341" id="cs6">48 It appears that there is no authority on the question of whether the fraud, offence or act that renders a person liable to a civil penalty to which reference is made in s 125(1)(a) must be committed by the client who has the benefit of the privilege. There is, however, authority for the proposition that the common law so-called 'crime or fraud exception' applies to legal advice given in furtherance of a fraud committed by a third party in which the client is not knowingly involved. [15]  40 At common law, a broad view was adopted regarding the meaning of fraud in the socalled 'crime or fraud exception' to privilege. Under the common law, fraud was not confined to actual dishonesty; equitable fraud involving breaches of fiduciary duty that fell short of actual dishonesty sufficed. [9] </sentence>
<sentence from="[2011] VSC 308" id="cs7">

 52 The importance of establishing the "objectives of some person of higher authority," such as the Chief Executive Officer of Powercor in this case, to identify the purpose or purposes for which the reports were prepared was repeated by Young J in AWB v Cole [42] in a passage that has been cited with approval by our Court of Appeal: [43]

 The purpose for which a document is brought into existence is a question of fact that must be determined objectively. Evidence of the intention of the document's maker, or of the person who authorised or procured it, is not necessarily conclusive. It may be necessary to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-making or consultation that led to the creation of the document and its subsequent communication. [44]  [38] Transcript, Mr Kelly, 65. [39] Sydney Airports Corporation Ltd v Singapore Airlines Ltd  Qantas Airways Ltd [2005] NSWCA 47 at [6] - [9] Spigelman CJ; M itsubishi Electric Pty Ltd v Victorian Workcover Authority [2002] VSCA 59 ; (2002) 4 VR 332 at 338 [14] . See also Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 at [15-16] , Finn J citing Barwick CJ in Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 677; Liquorland (Australia) Pty Ltd v Anghie (No 2) [2003] VSC 160 ; Commissioner of Taxation v Pratt Holdings [2005] FCA 1247 ; AWB v Cole [2006] FCA 1234 ; (2006) 155 FCR 30. [40] Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 per Gleeson CJ, Gaudron and Gummow JJ. [41] [1999] HCA 67 ; (1999) 201 CLR 49 at 66 [39] .

 55 The Court of Appeal of this court and other courts have interpreted the word "dominant" as meaning that there must be a "clear paramountcy" of purpose. [47]

 </sentence>
<sentence from="[2011] NSWADT 155" id="cs8">57 The broader principles governing legal professional privilege were usefully summarised by Young J in AWB Ltd v Cole (No 5) [2006] FCA 1234 ; (2006) 155 FCR 30 at 44. In applying those principles it is first necessary to decide in relation to each document for which the exemption is claimed, whether the agency has discharged the onus of establishing that it was brought into existence, for the dominant purpose of giving or obtaining legal advice. The 'dominant purpose test' refers to:

 a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice, or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect... the fact that the person... had in mind other uses of the document will not preclude that document being accorded privilege, if it were produced with the requisite dominant purpose. (per Barwick CJ in Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 ) </sentence>
<sentence from="[2011] AATA 372" id="cs9">In AWB Ltd v Cole and Another (No 5) [2006] FCA 1234 ; (2006) 155 FCR 30 , Young J discussed the nature of the documents to which the privilege may apply. He said at [44(8)] that:

 Legal professional privilege protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of the client, such as research memoranda, collations and summaries of documents, chronologies and the like ...

His Honour said at [44(9)]:

 Subject to meeting the dominant purpose test, legal professional privilege extends to notes, memoranda and other documents made by officers or employees of the client that relate to information sought by the client's legal adviser to enable him or her to advise...

 </sentence>
<sentence from="[2011] SASC 90" id="cs10">Alliance, on the other hand, submitted that the test to be applied was not so stringent. It referred to AWB Ltd v Cole (No 5) [43] in which Young J said that the Court of Appeal in British American Tobacco had expressed the position concerning waiver of associated material too narrowly. [44] Young J, relying on Attorney-General (NT) v Maurice [45] said that the test to be applied to determine the scope of any waiver of associated material is whether the material that the party has chosen to release from privilege represents the whole of the material relevant to the same issue or subject matter. [46]  Held: application granted - Alliance precluded from relying on grounds previously argued in the Federal Court; Quasar (through Heathgate) was acting as agent of the joint venture, and therefore as agent of Alliance; the agency did not, of itself, create joint privilege in the documents; parties held a shared interest in the documents, and as such the formal legal relationship between them created a duty to disclose - Quasar and Heathgate to disclose all documents over which privilege was claimed up to the date of execution of the NTMA, but not thereafter. Supreme Court Civil Rules 2006 (SA) r 136; Mining Act 1971 (SA) s 6 , s 16 , s 34 , Pt 9B ; Federal Court Rules 1979 r 6, referred to. Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 ; Zentai v O'Connor (No 2) [2010] FCA 252 ; (2010) 183 FCR 180 ; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 401 ; Carter v Northmore Hale Davey  Leake (1995) 183 CLR 121 ; Southern Equities Corp Ltd (in liq) v Arthur Andersen  Co (No 6) [2001] SASC 398 ; New South Wales v Betfair Pty Ltd [2009] FCAFC 160 ; (2009) 180 FCR 543 ; Moore v Inglis (1976) 50 ALJR 589 ; Henry v Henry [1996] HCA 51 ; (1995) 185 CLR 571 ; Rippon v Chilcotin ; [2001] NSWCA 142 ; (2001) 53 NSWLR 198 ; Yunghanns v Elfic Pty Ltd [2000] VSC 113 ; (2000) 1 VR 92 ; Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601 ; Mercantile Insurance (NSW Workers Compensation) Ltd v Murray [2004] NSWCA 151 ; Shrueder v Murray (No 2) [2009] WASCA 145 ; Commercial Union Assurance Co PLC v Mander [1996] 2 Lloyd's Rep 640 ; McLaughlin v Daily Telegraph Newspaper Co Ltd [1904] HCA 51 ; (1904) 1 CLR 243 ; Re Marshall and Discrimination Commissioner (1996) 42 ALD 101 ; Scott v Davis (2000) 204 CLR 333 ; Leicestershire County Council v Michael Faraday  Partners Ltd [1941] 2 KB 205 ; Breen v Williams (1996) 186 CLR 71 ; Chantrey Martin v Martin [1953] 2 QB 286 ; Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 ; British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197 ; (2002) 7 VR 524 ; AWB Ltd v Cole (No 5) [2006] FCA 1234 ; (2006) 155 FCR 30 ; Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 ; Buttes Gas  Oil v Hammer [1981] 1 QB 223 ; Bulk Materials v Coal  Allied Operations (1988) 13 NSWLR 689 ; Network Ten Ltd v Capital Television Holdings Pty Ltd (1995) 36 NSWLR 275 ; Wentworth v De Montfort (1988) 15 NSWLR 348 , considered. ALLIANCE CRATON EXPLORER PTY LTD v QUASAR RESOURCES PTY LTD  ANOR
 [2011] SASC 90

 Civil Application

 WHITE J. The defendants, Quasar Resources Pty Ltd (Quasar) and Heathgate Resources Pty Ltd (Heathgate), have each made disclosure of documents in accordance with the Rules of Court. Alliance, on the other hand, submitted that the test to be applied was not so stringent. It referred to AWB Ltd v Cole (No 5) [43] in which Young J said that the Court of Appeal in British American Tobacco had expressed the position concerning waiver of associated material too narrowly. [44] Young J, relying on Attorney-General (NT) v Maurice [45] said that the test to be applied to determine the scope of any waiver of associated material is whether the material that the party has chosen to release from privilege represents the whole of the material relevant to the same issue or subject matter. [46] </sentence>
<sentence from="[2011] VSC 194" id="cs11">19 It is unnecessary for me to survey the various authorities to which the Court was referred on the applicable principles. Those common law principles inform the content of s 118 of the Evidence Act . A very useful and comprehensive exposition of the legal principles was given by Young J in AWB Limited v Cole. [2] Other instructive cases are Pratt Holdings Pty Ltd v FCT, [3] Re Southland Coal Pty Ltd, [4] Meteyard v Love, [5] GSA Industries (Aust) Pty Ltd v Constable, [6] and Mitsubishi Electric Australia Pty v VWA. [7] For a case concerning documents collected by an insurer or its legal advisers see Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd. [8] </sentence>
<sentence from="[2011] FCA 479" id="cs12">Mr Moses SC also submitted that assistance is to be obtained, from his client's perspective, from the well known decision of Young J in AWB Limited v Cole (No. 5) [2006] FCA 1234 ; [2006] FCA 1234 ; (2006) 155 FCR 30 , and in particular, the passage at 44 [44]. There, his Honour set out a number of principles which he distilled from the authorities. Mr Moses SC did not rely upon all of them. He did, however, rely upon the following excerpts from five of them:

 (1) The party claiming privilege carries the onus of proving that the communication was undertaken, or the document was brought into existence, for the dominant purpose of giving or obtaining legal advice...

 (2) The purpose for which a document is brought into existence is a question of fact that must be determined objectively...

 (3) The existence of legal professional privilege is not established merely by the use of verbal formula ... Nor is a claim of privilege established by mere assertion that privilege applies to particular communications or that communications are undertaken for the purpose of obtaining or giving "legal advice" ... If assertions of that kind are received in evidence in support of the privilege claim, their conclusionary nature can leave unclear what advice was really being sought. There will be cases in which a claim for privilege will not be sustainable in the absence of evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed ...

 ...

 (5) A "dominant purpose" is one that predominates over other purposes; it is the prevailing or paramount purpose ...

 (6) An appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence...

  Mr Moses SC submitted, in reliance upon those authorities, that there was no evidence about the thought process which lay behind the decision to claim the privilege, or the nature or the purpose of the advice being sought in respect of each document. The claim which was made was not focused or specific and neither was it the case that topics had been identified: cf AWB Limited v Cole (No 5) [2006] FCA 1234 ; (2006) 155 FCR 30 at [44(3)] . </sentence>
<sentence from="[2011] NSWSC 254" id="cs13">In AWB v Cole (No.5) [2006] FCA 1234 ; (2006) 155 FCR 30 at [44] ; 44-47 Young J summarised the relevant principles. One of the summaries at (7) was that the concept of legal advice was fairly wide. It extended to professional advice as to what a party should prudently or sensibly do in the relevant legal context. But it did not extend to advice that was purely commercial or of a public relations character and reference was made to Balabel v Air India [1988] Ch 317 at 323, 330 amongst other cases.
 </sentence>
<sentence from="[2011] AATA 215" id="cs14">" [228]

This point was emphasised by Young J in AWB Ltd v Cole (No 5) [229] when he expressed his view that:

" ... it is well established that a voluntary disclosure of the gist, substance or conclusion of legal advice will amount to a waiver in respect of the whole of the relevant advice.

 ... " [66]

57. ... " [233]

189. In applying the principles in Mann v Carnell , Young J said that:

" ... the starting point must be an analysis of the disclosures or other acts or omissions of the party claiming privilege that are said to be inconsistent with the maintenance of confidentiality in the privileged material ... " [234]

190. " [230]

187.</sentence>
<sentence from="[2011] AATA 188" id="cs15">It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context; but it does not extend to advice that is purely commercial or of a public relations character ...

 (8) Legal professional privilege protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of the client, such as research memoranda, collations and summaries of documents, chronologies and the like, whether or not they are actually provided to the client ... " [143]

114. In AWB Ltd v Cole (No 5) , [142] Young J considered what amounts to legal advice:

" (7) The concept of legal advice is fairly wide.

 ... " [171]

132. [131] In the earlier case, his Honour had also examined the second limb relating to litigation. The privilege extends to drafts, notes and other material brought into existence by the client for the purpose of communication to the lawyer, whether or they are themselves actually communicated to the lawyer ... " [144]

115.</sentence>
<sentence from="[2011] FCA 245" id="cs16"/>
<sentence from="[2011] AATA 147" id="cs17">The principles governing legal professional privilege were usefully summarised by Young J in AWB Ltd v Cole (No 5) [2006] FCA 1234 ; (2006) 155 FCR 30 at 44. In applying those principles it is first necessary to decide in relation to each document for which the exemption is claimed, whether the Secretary has discharged the onus of establishing that it was brought into existence, for the dominant purpose of giving or obtaining legal advice. </sentence>
<sentence from="[2011] NSWADT 28" id="cs18">A 'dominant purpose' is one that predominates over other purposes; it is the prevailing or paramount purpose: FCT v Pratt Holdings at 279-280 per Kenny J at [30], AWB v Cole [2006] FCA 1234 per Young J at [44]. When applying the dominant purpose test an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 per Finn J v; AWB v Cole [2006] FCA 1234 per Young J at [44].

  The common law decisions relating to legal professional privilege provide a useful background to the operation of the relevant provisions of the Evidence Act 1995 . I see little benefit in quoting from the plethora of decided cases, which discuss the principles of legal professional privilege in detail. In considering the issue in the present case I have had regard to the decisions in General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502 , [2006] NSWCA 84 ; AWB v Cole No 5 [2006] FCA 1234 ; Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 , (2004) 136 FCR 357 ; Grant v Downs [1976] HCA 63 , (1976) 135 CLR 674 ; and Trade Practices Commission v Sterling [1979] FCA 33 ; [1979] FCA 33 ; (1979) 36 FLR 244 among others.

  A 'dominant purpose' is one that predominates over other purposes; it is the prevailing or paramount purpose: FCT v Pratt Holdings at 279-280 per Kenny J at [30], AWB v Cole [2006] FCA 1234 per Young J at [44]. When applying the dominant purpose test an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 per Finn J v; AWB v Cole [2006] FCA 1234 per Young J at [44].

 </sentence>
<sentence from="[2010] VSC 403" id="cs19">[1] The relevant principles, summarised by his Honour, are as follows:

 (1) The party claiming privilege carries the onus of proving that the communication was undertaken, or the document was brought into existence, for the dominant purpose of giving or obtaining legal advice.</sentence>
<sentence from="[2010] FCA 950" id="cs20">Thus, with the greatest respect, I doubt that the decision in Waterford requires anything more than that the legal adviser be professionally qualified and acting in a professional capacity. I note that in AWB v Cole (No 5) [2006] FCA 1234 , 234 ALR 651 at 664 [44] , to which her Honour did not refer, Young J considered that the question of independence involved no more than an inquiry into whether the lawyer was consulted in her or his professional legal capacity, although his Honour also pointed out that some cases have added a requirement that the lawyer who provided the advice must be admitted to practice. </sentence>
<sentence from="[2010] AATA 649" id="cs21">Legal professional privilege protects communications made by both parties to those communications. Therefore, as well as protecting communications made to the client by the legal adviser, it will also protect communications made by the client for the dominant purpose of seeking legal advice:

" ... [L] egal professional privilege extends to notes, memoranda or other documents made by officers or employees of the client that relate to information sought by the client's legal adviser to enable him or her to advise ... The privilege extends to drafts, notes and other material brought into existence by the client for the purpose of communication to the lawyer, whether or they are themselves actually communicated to the lawyer ... " [129]

95. What amounts to a dominant purpose was considered by Kenny J in Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd : [130]

" (7) The dominant purpose is not the same as the 'primary' or the 'substantial' purpose: see Grant v Downs at CLR 678; ALR 580 per Barwick CJ. The 'dominant' purpose may be described as the ruling, prevailing, paramount or most influential purpose .... [126]

93. In AWB Ltd v Cole (No 5) , [127] Young J considered what amounts to legal advice:

" (7) The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context; but it does not extend to advice that is purely commercial or of a public relations character ...

 (8) Legal professional privilege protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of the client, such as research memoranda, collations and summaries of documents, chronologies and the like, whether or not they are actually provided to the client ... " [128]

94. Legal professional privilege protects communications made by both parties to those communications. Therefore, as well as protecting communications made to the client by the legal adviser, it will also protect communications made by the client for the dominant purpose of seeking legal advice:

" ... [L] egal professional privilege extends to notes, memoranda or other documents made by officers or employees of the client that relate to information sought by the client's legal adviser to enable him or her to advise ... It is not a case of legal professional privilege's being waived. [126]

93. In AWB Ltd v Cole (No 5) , [127] Young J considered what amounts to legal advice:

" (7) The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context; but it does not extend to advice that is purely commercial or of a public relations character ...

 (8) Legal professional privilege protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of the client, such as research memoranda, collations and summaries of documents, chronologies and the like, whether or not they are actually provided to the client ... " [128]

94. Legal professional privilege protects communications made by both parties to those communications. Once the necessary degree of independence has been established and:

"... communications take place between a client and his or her independent legal advisers, or between a client's in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications .... In Kennedy v Wallace , [ [153] ] Black CJ and Emmett J inclined to the view that in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given.

 ... " [154]

111. Legal advice is obtained by those in the private sector and private citizens in relation to legal proceedings brought against them or that they may contemplate or institute. It is sought to ensure that they know what they can and cannot do under the law.</sentence>
<sentence from="[2010] FCA 863" id="cs22">Attention was drawn on behalf of Mr Joyce not only to the passage from Maurice cited above but also to the way in which the test had been expressed by the Victorian Court of Appeal in British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197 ; (2002) 7 VR 524 at [121] :

 As we apprehend it, where legal professional privilege is waived in relation to one piece (or part) of advice, the privilege is impliedly waived in relation to another if - and only if - that other is necessary to a proper understanding of the first. As established by the High Court (at least since Mann v. Carnell ) the test in such cases is whether it would be "inconsistent" for a party to rely upon, and so to waive legal professional privilege in respect of, the one without also being taken to have waived privilege in respect of the other. '

Attention was further drawn to the following observation made by Young J in AWB Limited v Cole (No 5) [2006] FCA 1234 ; (2006) 155 FCR 30 at [167] in respect of this passage from the British American Tobacco Case :

 It is no doubt correct that a mere reference to the existence of legal advice in a disclosed document will not be regarded as a waiver of its contents, albeit a different conclusion would follow if the gist, substance or conclusion of the legal advice is voluntarily disclosed. But, with great respect to their Honours, the proposition concerning waiver of associated material is expressed too narrowly and in a way that is not consistent with the test propounded by the High Court in Maurice. The principle propounded by the Court of Appeal may work adequately enough in some circumstances, particularly where privilege is sought to be maintained over one part of a single piece of legal advice, but in other circumstances it will not give effect to the principles explained in Maurice.

 I respectfully agree with the observation made by Young J.

  The basis in legal principle of the claim for client legal privilege made by Prudentia, Hanley and Mr Reed is to be found in the following passage from the judgment of Young J in AWB Limited v Cole (No 5) [2006] FCA 1234 ; (2005) 155 FCR 30 at [47] :

 Where a lawyer has been retained for the purposes of providing legal advice in relation to a particular transaction or series of transactions, communications between the lawyer and the client relating to that transaction will be privileged, notwithstanding that they do not contain advice on matters of law; it is enough that they are directly related to the performance by the lawyer of his or her professional duty as legal adviser to the client: Minter v Priest [1930] AC 558 at 581---586; Balabel at 330; Nederlandse at 983 and Dalleagles at 332---333.

Mr Sinn, it is submitted, is a lawyer retained for the purpose of providing legal advice in relation to the transaction concerning plot D17. </sentence>
<sentence from="[2010] FWA 4874" id="cs23"/>
<sentence from="[2010] FCA 553" id="cs24">The above "inconsistency" test for waiver applies where legal professional privilege could be claimed in an investigative context (see AWB Ltd v Cole (No 5) [2006] FCA 1234 ; (2006) 155 FCR 30 at [128] ---[129] (p 67)). </sentence>
<sentence from="[2010] TASSC 14" id="cs25">
 9 AWB Ltd v Cole  Anor (No 5) [2006] FCA 1234 ; (2006) 155 FCR 30 pars[130] --- [134], where what Young J said included the following:

 "Under the test propounded in Mann , it is inconsistency between the conduct of the client and the maintenance of the confidentiality that the privilege is intended to protect which effects a waiver of the privilege. Fairness has become a subsidiary consideration; it may be relevant to the court's assessment of inconsistency in some contexts but not in others. ... The broad question posed by Mann is whether, and to what extent, AWB's disclosures are inconsistent with the maintenance of confidentiality in the documents which are at issue in these proceedings. This question wraps up several subsidiary issues, in particular whether AWB's disclosures involved, on each occasion, a disclosure of the gist or substance of its legal advice, whether AWB consciously deployed that advice so as to advance its own commercial or other interests, and, if so, whether that disclosure has resulted in an imputed waiver of privilege over any and what associated materials. In any application of Mann , the starting point must be an analysis of the disclosures or other acts or omissions of the party claiming privilege that are said to be inconsistent with the maintenance of confidentiality in the privileged material: see Rio Tinto at [45]. " </sentence>
<sentence from="[2010] NSWADT 72" id="cs26">

70 A 'dominant purpose' is one that predominates over other purposes; it is the prevailing or paramount purpose: FCT v Pratt Holdings at 279-280 per Kenny J at [30], AWB v Cole [2006] FCA 1234 per Young J at [44]. When applying the dominant purpose test an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 per Finn J v; AWB v Cole [2006] FCA 1234 per Young J at [44].

72 In AWB v Cole No 5 [2006] FCA 1234 Young J summarised the relevant principles at [44]. It is established that the privilege attaches to advice on the operation and application of laws, proposed laws, and their drafting, including advice given by parliamentary counsel in relation to the drafting and preparation of bills: General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502 ; [2006] NSWCA 84 at [74] .

70 A 'dominant purpose' is one that predominates over other purposes; it is the prevailing or paramount purpose: FCT v Pratt Holdings at 279-280 per Kenny J at [30], AWB v Cole [2006] FCA 1234 per Young J at [44]. When applying the dominant purpose test an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 per Finn J v; AWB v Cole [2006] FCA 1234 per Young J at [44].</sentence>
<sentence from="[2009] WAIRComm 1360" id="cs27">The onus of establishing that a communication occurred or a document was brought into existence for the dominant purpose of giving or obtaining legal advice is on the party claiming privilege: AWB Ltd v Cole (No 5) [2006] FCA 1234 ; (2006) 155 FCR 30 [44(1)]. However, there is an evidentiary onus on the applicants to displace the claim of privilege. The intervener produced to the Commission for inspection a copy of the legal advice referred to in the Report. The legal advice is set out in a letter dated 20 July 2007 addressed to the then President of the intervener from solicitors Slater and Gordon. There is no dispute that the advice set out in the letter dated 20 July 2007 is protected by advice privilege. The only issue in dispute is whether by referring to the advice in the Report the intervener has waived the advice privilege in respect of that advice. </sentence>
<sentence from="[2009] VCAT 2770" id="cs28">Next Mr Smeaton took me to a judgment of Young J of the Federal Court of Australian in AWB Limited v Cole (No. 5) [2006] FCA 1234 where His Honour restated the fraud exception. At [212 ]speaking of the exception he said:
The principle extends to 'trickery' and 'shams'. A 'sham' refers to steps which take the form of a legally effective transaction but which the parties intend should not have the apparent, or any, legal consequences. </sentence>
<sentence from="[2009] FCA 1518" id="cs29">I think the applicants' contention is correct. The respondents instructed Perks to carry out an analysis of the Joint Venture and Perks reached a conclusion as to the balance owing by or to the various members of the Joint Venture. No doubt that was done, in part at least, to satisfy the applicants that a proper accounting had been performed. The respondents decided to expressly waive privilege over the material they provided to the applicants. They thereby waived privilege over associated material ( AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 at [127] - [176]). The class of documents in Schedule 1 Part 2 is associated material because it deals with the same subject matter as the material over which privilege has been waived and it forms the basis of that material. </sentence>
<sentence from="[2009] FCA 1293" id="cs30">The determination of the dominant purpose is a question of fact that must be determined objectively. It is not the same as the 'primary' or the 'substantial' purpose ( Grant v Downs at 678). The dominant purpose may be best described as the ruling, prevailing, paramount or most influential purpose ( Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332 at 336 --- 337). Where the claim is in respect of communications in documents, the court may examine the documents to ascertain the purpose for their creation (Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at 70). An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence ( Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 (' Pratt ') at [35] per Finn J, confirmed in AWB v Cole (No. 5) [2006] FCA 1234 ; (2006) 155 FCR 30 at [44]). If a court finds on the balance of probabilities that the entirety of the document was created for the requisite purpose, then the entire document attracts the privilege. If a court finds that parts, but not all of the document, were created for this purpose, then those parts will attract the privilege (see GEC Marconi Systems Pty Ltd v BHP Information Technology [2000] FCA 593 at [11] ; Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 43 FCR 408 at 414 --- 417). </sentence>
<sentence from="[2009] QSC 361" id="cs31">[29]
[29] Waiver is not established merely by way of a voluntary disclosure to a third party, for example for a limited and specific purpose.</sentence>
<sentence from="[2009] NSWIRComm 148" id="cs32">13 Young J reviewed the relevant authorities and principles which govern legal advice privilege in AWB Ltd v Cole and Another [2006] FCA 571 ; 152 FCR 382 at [60] - [63] and [85] - [110]. In AWB Ltd v Cole (No 5) [2006] FCA 1234 ; (2006) 155 FCR 30 , his Honour summarised the general principles as follows at [44]:

 The general principles that I consider relevant to the disposition of this case can be summarised as follows:

 (1) The party claiming privilege carries the onus of proving that the communication was undertaken, or the document was brought into existence, for the dominant purpose of giving or obtaining legal advice. The onus might be discharged by evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, or authored the document, or procured its creation. It might also be discharged by reference to the nature of the documents, supported by argument or submissions: see Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689; Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247 ; (2005) 60 ATR 466 at [30] ; and AWB v Cole at [63].</sentence>
<sentence from="[2009] QSC 219" id="cs33">In AWB Ltd v Cole (No 5), [3] Young J summarised many of the relevant general principles which need to be applied in cases in which advice privilege is claimed, including the following [4] :

"(1) The party claiming privilege carries the onus of proving that the communication was undertaken, or the document was brought into existence, for the dominant purpose of giving or obtaining legal advice.</sentence>
<sentence from="[2009] NSWSC 538" id="cs34">

41 The Appeal Panel then referred to the observations of Young J in AWB Ltd v Cole (No. 5) [2006] FCA 1234 ; [2006] 155 FCR 30 before holding that the principles stated by his Honour were equally applicable to FOI proceedings. The Appeal Panel continued:

 "The review applicant must make out a case, at least to a point where the Tribunal is satisfied that there is a prima facie case. The agency should be called upon to respond at that point.

 In this case Mrs Howell did not put on any evidence, though there had been extensive reference to 'improper purpose' in the submissions prepared and filed by Mr Howell before the hearing (see submissions filed 24 October 2005) and again in the submissions filed after the hearing (on 10 March 2006). </sentence>
<sentence from="[2009] WASC 150" id="cs35">15 Privilege attaches to communications, not to documents as such. However, if a document is created for the dominant purpose of giving or seeking legal advice, it will be privileged: Daniels Corporation International Pty Ltd v Australian Competition  Consumer Commission [2002] HCA 49 ; [2002] HCA 49 ; (2002) 213 CLR 543 [9]; AWB Ltd v Cole (No 5) [2006] FCA 1234 ; (2006) 155 FCR 30 [41]; Bond v West Australian Newspapers Ltd (No 3) [2009] WASC 129 [14].</sentence>
<sentence from="[2009] AIRC 469" id="cs36">(No.5) [2006] FCA 1234 ; (2006) 155 FCR 30 [158].</sentence>
<sentence from="[2009] FMCAfam 595" id="cs37">The parties did not address me on the issue of the waiver of associated material. The form of order seeks a very broad range of disclosure. Whilst it is well-settled that a voluntary disclosure of privilege documents can result in a waiver of privilege over those documents and associated material the test to be applied to determine the scope of any waiver of associated material is whether the material the party has chosen to release from privilege represents the whole of the material relevant to the same subject issue or subject matter --- see AWB Ltd v Cole and Another (No.5) [2006] FCA 1234 ; (2006) 155 FCR 30 ; and Newcrest Mining (WA) Limited v Commonwealth of Australia and Another (1993) 40 FCR 507. </sentence>
<sentence from="[2009] QICmr 6" id="cs38">See also Esso Australia Resources Ltd v Commissioner of Taxation ( Esso ) (1999) 201 CLR 49. [11] See Commissioner of Australia Federal Police v Propend Finance Pty Ltd ( Propend ) [1996] HCA 3 ; (1997) 188 CLR 501. See also AWB Ltd v Cole and Another (No 5) [2006] FCA 1234. [12] At 552 --- 553. Following the decision of the High Court in Esso , the 'dominant purpose' test has replaced the 'sole purpose' test.</sentence>
<sentence from="[2009] QICmr 3" id="cs39"/>
<sentence from="[2008] VSC 547" id="cs40">33 In AWB Limited v Cole (No.5), [13] Young J of the Federal Court said as follows:

 "Where a lawyer has been retained for the purposes of providing legal advice in relation to a particular transaction or series of transactions, communications between the lawyer and the client relating to that transaction will be privileged, notwithstanding they do not contain advice on matters of law; it is enough that they are directly related to the performance by the lawyer of his or her professional duty as a legal adviser to the client . In Dalleagles , Anderson J said that professional discourse in a professional capacity between a solicitor and his client with reference to the transactions covered by his instructions should be regarded as prima facie for the purpose of giving and receiving advice. In his Honour's view, this would apply to any communication that is on its face a communication of a professional nature from the solicitor to the client or his agent touching the subject matter of the solicitor's engagement and any communication from the client to the solicitor in connection with that engagement. (Citations omitted --- emphasis added). </sentence>
<sentence from="[2008] VSC 464" id="cs41">37 The sixth defendant has also masked small parts of some 12 documents, discovered by it, on the basis that those parts are the subject of legal professional privilege. The plaintiff challenges the right of the sixth defendant to redact those parts of the documents on that basis. The relevant principles on this question are not controversial and may be briefly stated. A document which is created for the "dominant" purpose of obtaining legal advice may be the subject of legal professional privilege. [26] The party asserting the privilege bears the onus of establishing its entitlement to rely on it. [27] Where the existence of legal professional privilege is in issue, the Court is not bound by the ritual incantation of a formula asserting privilege by the party resisting production of the document. [28] In an appropriate case, the Court may inspect the documents, which are the subject of the claim for privilege, in order to determine whether the claim for privilege is well founded. [29] </sentence>
<sentence from="[2008] QSC 193" id="cs42">In AWB Limited v Cole (No 5) [2006] FCA 1234 ; (2006) 155 FCR 30 , his Honour said at [210] --- [212]:

'210 Communications between a lawyer and client which facilitate a crime or fraud are not protected by legal professional privilege.</sentence>
<sentence from="[2008] QICmr 17" id="cs43"/>
<sentence from="[2008] QICmr 10" id="cs44"/>
<sentence from="[2008] HCATrans 175" id="cs45">The paradigm case of that is where there is inter partes litigation, but I think Justice Young in the AWB v Cole Case (No 5) [2006] FCA 1234 ; (2006) 155 FCR 30 - and we have given your Honours a reference to that there is well, how does fairness arise outside the context of inter partes litigation where you just have a party and an organ of government.</sentence>
<sentence from="[2008] VSCA 59" id="cs46">3 The determination of dominant purpose is a matter for the Court, as the authorities make clear. We refer first to what Kenny J said in Commissioner of Taxation v Pratt Holdings: [2]

The purpose for which a document is brought into existence is a question of fact. Where there are a number of purposes for the creation of a document, it can be difficult to identify the dominant purpose. The dominant purpose must be determined objectively, having regard to the evidence, the nature of the documents and the parties' submissions. The purpose will ordinarily be that of the maker of the document, but this will not always be the case. We also refer to what Young J said in Australian Wheat Board v Terrence Cole : [3]

The purpose for which a document is brought into existence is a question of fact that must be determined objectively. Evidence of the intention of the document's maker, or of the person who authorised or procured it, is not necessarily conclusive. It may be necessary to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-making or consultation that led to the creation of the document and its subsequent communication.</sentence>
<sentence from="[2008] NSWCA 26" id="cs47">85 The Appeal Panel relied on the judgment of Young J in the Federal Court of Australia in AWB Ltd v Cole (No 5) [2006] FCA 1234 ; (2006) 155 FCR 30 for its statement of the "improper purpose" exception to legal professional privilege. The Appeal Panel said, at [46]-[49] of its first-stage reasons:

 "Young J in the Explanatory Statement in the AWB case gave the following explanation of the exception to legal professional privilege which these submissions seek to invoke:

 'Communications between a lawyer and client which facilitate a crime or fraud are not protected by legal professional privilege. This principle is often referred to as the 'fraud exception' to legal professional privilege, but this does not capture its full reach.</sentence>
<sentence from="[2008] NSWADTAP 10" id="cs48">26 In AWB v Cole (No 5) [2006] FCA 1234 at [218] Young J discussed the nature of evidence necessary to raise the issue of improper purpose:

 It is not necessary to prove an improper purpose on the balance of probabilities. The 'prima facie' test arguably reflects the fact that issues of legal professional privilege are usually dealt with in the interlocutory stages of a proceeding, but the authorities have not departed from that formulation where a declaration is sought in relation to privilege issues. 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. (References omitted. ) </sentence>
<sentence from="[2008] NSWSC 151" id="cs49">3 There was agreement between the parties that the following principles apply in relation to a claim for privilege and waiver (I take this exposition from the written submissions of Mr Speakman and Mr Moujalli):

(a) Section 118 protects confidential communications and the contents of confidential documents made or prepared for the dominant purpose of a lawyer providing legal advice to a client. In this context, "the concept of legal advice is fairly wide": AWB Ltd v Cole [2006] FCA 1234 ; (2006) 155 FCR 30 at [44(7)] per Young J. In General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 at [77] - [78], McColl JA quoted, with apparent approval, the observation of Taylor LJ in Balabel v Air India [1988] Ch 317 at 330, that "legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context". To qualify as legal advice, the lawyer must make the communication in the professional capacity of a lawyer: at [90].</sentence>
<sentence from="[2008] NTSC 9" id="cs50">I was referred by counsel to the very helpful judgment of Young J in AWB Ltd v Cole  Anor (No 5) [2006] FCA 1234 ; (2006) 234 ALR 651 and of the High Court in Attorney-General for the Northern Territory v Maurice  Ors [1986] HCA 80 ; (1986) 161 CLR 475.</sentence>
<sentence from="[2007] FamCA 1444" id="cs51">The doctrine of privilege protects a confidential communication, whether oral or documentary, from disclosure in circumstances where its dominant purpose was giving or receiving legal advice or for use in existing or anticipated litigation. [4] Both factual instructions and advice given about the law or available options are protected if the relevant communication satisfies this test. [5]  The onus of establishing privilege normally lies on the party asserting it. [3] </sentence>
<sentence from="[2007] NSWADTAP 65" id="cs52">

37 Presumption of regularity . Mr McGuirk submitted in relation to the Tribunal's reference to Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649 , that Gaudron J was in dissent and her comment was simply obiter and therefore not binding. The issue in that case was the circumstances in which an improper purpose could be inferred in relation to a decision made under a statutory power. That was not the issue facing the Tribunal. The issue the Tribunal was addressing was whether legal professional privilege had been lost because the communications in the disputed documents had been made in furtherance of a crime or fraud, or some other illegal purpose. The presumption of regularity does not apply in those circumstances because the communication does not involve an 'official act' such as the exercise of a power under a statute. To the extent that the Tribunal found that the presumption of regularity was relevant to the issue it had to decide, it was in error. The correct principle is that the party alleging an illegal purpose must present a prima facie case to support the allegations. It is not necessary to prove an illegal purpose on the balance of probabilities: AWB v Cole (No 5) [2006] FCA 1234 [218] per Young J.</sentence>
<sentence from="[2007] QSC 309" id="cs53">[5]
 [22] Accordingly paragraph 2 of the application is dismissed.</sentence>
<sentence from="[2007] WASC 276" id="cs54">48 The doctrine of waiver has been enunciated in a number of cases (see Attorney General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 ; Goldberg v Ng [1995] HCA 39 ; (1995) 185 CLR 83 , Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 , and AWB Ltd v Cole (No 5) [2006] FCA 1234 ; (2006) 155 FCR 30 ; (2006) 234 ALR 651). Central to the principle are notions of fairness so that, if it would be unfair in a procedural sense for a party to assert legal professional privilege while at the same time having disclosed other documents or advanced a particular argument, the doctrine of implied waiver will be applied.</sentence>
<sentence from="[2007] AATA 1841" id="cs55">In AWB v Cole and Another (No 5) [2006] FCA 1234 at [44 (10)] Young J said:

 Legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: Waterford (Waterford v The Commonwealt h [1987] HCA 25 ; (1987) 163 CLR 54) ; at CLR 96; ALR 705 per Dawson J; see also Deane J at CLR 79---82. ...

 </sentence>
<sentence from="[2007] VSC 292" id="cs56">16 A party claiming that a document is privileged from production bears the onus of establishing and proving the privilege by evidence and/or argument, even though it is the other party that has applied for relief by way of an order for production or inspection. [4] </sentence>
<sentence from="[2007] NSWADTAP 38" id="cs57">21 Another way in which legal professional privilege may be lost is where the communication contained in the document furthers some wrong doing. The wrong doing may be a crime including fraud, an abuse of statutory power or some improper purpose. (See Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1996] HCA 3 ; (1997) 188 CLR 501 at 545 and Attorney-General (NT) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500. ) In a decision handed down after the Tribunal delivered its reasons, Young J described the activities encompassed by this principle:

 The principle encompasses a wide species of fraud, criminal activity or actions taken for illegal or improper purposes and extends to 'trickery' and 'shams'. As the fraud exception is based on public policy grounds, it is sufficiently flexible to capture a range of situations where the protection of confidential communications between lawyer and client would be contrary to the public interest. ( AWB v Cole (No 5) [2006] FCA 1234 , [210]. )  29 Relevance of conduct prior to receiving instructions . Mr McGuirk's next ground of appeal relates to the words underlined in [48]. He submitted that that statement fails to correctly apply the legal principles relating to the furtherance of wrong doing as described by Young J in AWB Limited v Cole (No 5) [2006] FCA 1234. Mr McGuirk appears to be referring to the following passages at [214] to [215] of that decision (footnotes deleted):

 Where a client is engaged in fraudulent conduct, communications with his or her lawyer in furtherance of the fraud are not privileged, regardless of whether the lawyer is a party to the fraud or not. The principle applies to communications passing between a client and lawyer where the lawyer is innocent of the fraud or improper purpose. 26 Incorrect test . Mr McGuirk relies on a passage from the recent decision of AWB v Cole (No 5) [2006] FCA 1234 at [218] in support of his contention that the Tribunal misstated the principle in relation to the nature of evidence necessary to raise the issue of improper purpose:

 It is not necessary to prove an improper purpose on the balance of probabilities. The 'prima facie' test arguably reflects the fact that issues of legal professional privilege are usually dealt with in the interlocutory stages of a proceeding, but the authorities have not departed from that formulation where a declaration is sought in relation to privilege issues: Butler; Propend; Beazley. 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.  31 Alternatively, the Department submitted that there is nothing in the judgment of Young J in AWB Limited v Cole (No 5) [2006] FCA 1234 that was drawn to the Appeal Panel's attention, which is inconsistent with the Tribunal's findings. We agree with the Department's alternative submission. There is nothing in the decision of Young J which departs from Gaudron J's approach in Australian Federal Police v Propend Finance Pty Ltd [1996] HCA 3 ; (1997) 188 CLR 501at 545 or the conclusion of the Tribunal when applying that decision. The Tribunal set out the relevant passage at [19] of the decision:

 Communications made in furtherance of future wrongdoing fall outside legal professional privilege, although there is no particularly precise statement as to the nature of the wrongdoing that produces that result. However, legal professional privilege clearly extends to the situation in which a person seeks advice with respect to past misdeeds. </sentence>
<sentence from="[2007] FamCA 786" id="cs58">20. In AWB v Cole [4] and AWB Ltd v Honourable Terrence Rhoderic Hudson Cole (No 5) [5] Young J observed:

 The onus might be discharged by evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, or authored the document, or procured its creation. It might also be discharged by reference to the nature of the documents, supported by argument or submissions. </sentence>
<sentence from="[2007] NSWSC 692" id="cs59"/>
<sentence from="[2007] VSCA 96" id="cs60"/>
<sentence from="[2007] VSC 113" id="cs61">24 Subsequent authorities have held that the exception is not limited to crime or fraud in the technical sense, and may include communications made to further an illegal purpose. [13] In this case, there is no dispute that the alleged breaches by Anthony Porto of his fiduciary and statutory duties would fall within the concept of fraud. </sentence>
<sentence from="[2007] FCA 477" id="cs62">57 It is well recognised that a claim of legal professional privilege will not be upheld if the party resisting the claim for legal professional privilege can show reasonable grounds for believing that the communication effected by the document for which privilege is claimed was made for an illegal or improper purpose: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1996] HCA 3 ; (1997) 188 CLR 501 ; Attorney-General (NT) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500 ; and see generally AWB Ltd v Cole (No 5) [2006] FCA 1234 at [211] - [219]. This does not require a demonstration that the legal advisers were themselves conscious participants in fulfilling the improper purpose: Yunghanns v Elfic Pty Ltd [2000] VSC 113 ; (2000) 1 VR 92 at 106. While it is not sufficient merely to allege improper purpose, it is not necessary fully to prove the allegations. There has to be something to give colour to the charge --- a prima facie case: Propend at 514.</sentence>
<sentence from="[2007] NSWSC 258" id="cs63">49 In Thomas v State of New South Wales [2006] NSWSC 380 , McClellan CJ at CL held that service of an affidavit attaching an advice of counsel which in turn referred to certain medical reports, waived privilege in the medical reports because they influenced the content of the advice (at [17]). The principle is the same. The same principle was applied by Young J in AWB Ltd v Cole [2006] FCA 1234 at [168] - [178] in holding that disclosure of the substance of legal advice impliedly waived privilege over associated material as the publication of the legal advice was inconsistent with the maintenance of confidentiality over such material which underpinned the advice. 50 As set out earlier in these reasons, Mr Smith, as he is required to do under the Expert Witness Code of Conduct, specified the materials used in support of his opinions. These did not include draft reports, or earlier letters of instruction, or communications with the plaintiffs' solicitors.</sentence>
<sentence from="[2007] NSWSC 230" id="cs64">11 Slater  Gordon allege (and it may be assumed that the McCabe estate will also) that the Relevant Documents and Information are not entitled to protection as confidential because there is a prima facie case, or reasonable grounds for believing, that they relate to or contain an iniquity. On the presently available material, it can be said that in the present proceedings brought by BATAL and BATAS against Slater  Gordon ("the breach of confidence proceedings"), BATAL and BATAS have seriously arguable cases for final relief to restrain the use or dissemination of their confidential information, which has come into the hands of Slater  Gordon and Ms Cowell as a result of a breach of confidence by Mr Dale in circumstances in which the recipients ought to have been aware that there was a breach of confidence, but for the defence of iniquity. The main issue at the final hearing is likely to be whether there are "reasonable grounds for believing", or "a prima facie case", that the documents and information in which confidence and privilege are claimed disclose an iniquity; it will not be necessary for the Defendants to establish the iniquity on the balance of probabilities, although it would not suffice that the documents apparently "relate to" an iniquity; to be deprived of confidentiality or privilege they must contain or disclose an iniquity [ AWB Limited v Cole (No 5) [2006] FCA 1234 , [217]-[218]; AG Australia Holdings Limited v Burton [2002] NSWSC 170 ; (2002) 58 NSWLR 464 , 520-1 [198]-[202], 523 [208]].</sentence>
<sentence from="[2007] AIRC 210" id="cs65">It was noted that Young J also summarised the principles set out in that case in a further case, AWB Ltd v Cole and Another (No.5) [2006] FCA 1234 ; (2006) 155 FCR 30 at paragraph 44. BY THE COMMISSION

COMMISSIONER
 Printed by authority of the Commonwealth Government Printer

Price code C

 [1] 2 [2006] FCA 1234 ; 155 FCR 30 at paragraph 44.</sentence>
<sentence from="[2007] FCA 3" id="cs66">The most recent judicial examination of the law of legal professional privilege is that carried out by Young J in AWB v Cole 152 FCR and AWB Limited v Honourable Terrence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 ( Cole No 5 FCA 1234). The general principles so far as they were relevant to the disposition of the case before him were summarised in Cole No 5 FCA 1234 at [44] , the following paragraphs of which are particularly relevant to this proceeding:

 '(1) ... The onus might be discharged by evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, or authored the document, or procured its creation.</sentence>
<sentence from="[2006] NSWSC 1281" id="cs67">21 The onus of establishing the claim for client legal privilege falls on the party asserting or claiming the privilege and is met by establishing the facts giving rise to the claim: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689; Australian Competition and Consumer Commission v Lux Pty Limited [2003] FCA 89 at [42] ; Re Southland Coal Pty Limited at [14](c). Mere assertion of the claim, by way of a formulaic claim, is not enough: AWB Limited v Cole [2006] FCA 571 ; (2006) 152 FCR 382 at 402 [63] . What is required is exposure of facts from which an informed decision can be made as to whether the claim for privilege is supportable: National Crime Authority v S (1991) 29 FCR 203 at 211-212; AWB Limited v Cole (No. 5) [2006] FCA 1234 at [44]. The facts are to be proved on the balance of probabilities: s.142 Evidence Act 1995 .</sentence>
<sentence from="[2006] FCA 1409" id="cs68">In applying Mann v Carnell, the starting point must be, in the words of Young J in AWB Ltd v The Honourable Terence Rhoderic Hudson Cole (No. 5) [2006] FCA 1234 (at [134]), 'an analysis of the disclosures or other acts or omissions of the party claiming privilege that are said to be inconsistent with the maintenance of confidentiality in the privileged material'. The conduct of the Review Board in relation to the documents in question has in no way been inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. The existence of the documents was properly disclosed in the course of discovery in these proceedings, pursuant to a request for 'all documents considered by the [Review Board] in making their decision subject of the Application'. The reference by the solicitor for the Attorney-General to the advice in this context is not sufficient to constitute a waiver of privilege in respect of the documents. </sentence>
<sentence from="[2006] NSWSC 1108" id="cs69">111 The Federal Court has also recently considered the matter in AWB Ltd v Cole (No 1) [2006] FCA 571 and (No 5) [2006] FCA 1234 , both decisions of Neil Young J. His Honour said in the first judgment [136]:

"In my view, the distinction between a mere reference to advice having been obtained, and a reference that discloses the content or substance of the advice, has not been eliminated by the High Court's restatement of the relevant principles as to waiver in Mann v Carnell [1999] HCA 66 ; (1990) 201 CLR 1". </sentence>
<sentence from="[2006] VSCA 201" id="cs70">

 49 The main submission made by counsel for the appellants, Mr Middleton, Q.C., was that the communications made to and between the financiers and to Royce were not privileged, because they were not made for the dominant purpose of obtaining or giving legal advice. In Commissioner of Australian Federal Police v. Propend Finance Pty Ltd [39] the majority of the High Court [40] held that a copy of a document brought into existence for the purpose of obtaining legal advice or conducting litigation, is privileged, even though the original document is not privileged. [41]  42 In AWB Ltd v. Honourable Terence Rhoderic Hudson Cole (No 5) [34] Young, J. said that ---

 "The purpose for which a document is brought into existence is a question of fact that must be determined objectively. Evidence of the intention of the document's maker, or of the person who authorised or procured it, is not necessarily conclusive [35] . ... The Court has power to examine documents over which legal professional privilege is claimed. Where there is a disputed claim, the High Court has said that the court should not be hesitant to exercise such a power. " [36]

 43 The documents for which privilege was claimed included cost invoices passed on to the financiers and documents provided to Royce in relation to a press release and preparation for a public meeting. Memoranda of costs are not privileged unless they disclose the nature of instructions given by a client or the advice given by a solicitor. [37] Ms Moon's affidavit of 25 th May 2005 swears that these memoranda of costs contain descriptive time sheet narrations of work conducted by legal advisers working on the matter. Her affidavit of 14 th June says that the documents provided to Royce included a "draft document with handwritten annotations by John Digby, Q.C. regarding preparation for a City of Moreland Public Meeting" and a Draft Media Release with marked up amendments by Anne Moon. In light of the description of these documents, it is questionable if they constitute legal advice, or public relations advice. As was recently noted by Young, J. in AWB Limited v. Honourable Terence Rhoderic Hudson Cole (No 5) : [38]

 "The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context; but it does not extend to advice that is purely commercial or of a public relations character: Balabel v. Air India [1988] 1 Ch 317 ('Balabel') at 323 and 330; Nederlandse Reassurantie Groep Holding NV v. Bacon and Woodrow [1995] 1 All ER 976 ('Nederlandse') at 983; Three Rivers District Council v. Governor and Company of the Bank of England (No 6) [2004] UKHL 48 ; [2005] 1 AC 610 ('Three Rivers') at 652---653 [43]---[44], 657---658 [59]---[60], 681 [114] and 683 [120]; Dalleagles Pty Ltd v. Australian Securities Commission (1991) 4 WAR 325 ('Dalleagles') at 332---333; DSE (Holdings) Pty Ltd v. Intertan Inc [2003] FCA 1191 ; (2003) 135 FCR 151 ('DSE') at 161---173 [25]---[71]; and AWB v. Cole at [100]---[101]. "  [72] At 13 [29]. [73] AWB Limited v. Honourable Terence Rhoderic Hudson Cole (No. 5) [2006] FCA 1234 at [44] . [74] (1999) 165 A.L.R. 253.</sentence>
<sentence from="[2006] NSWADTAP 53" id="cs71">

11 As was noted in the 2001 Land and Environment Court case, Mr Franks feels strongly that the conduct of the Council towards him has involved an abuse of public office, and the documents sought in this case being documents connected with the Council actions taken against him have lost the benefit of the privilege for that reason. The law on legal professional privilege recognises that the privilege is lost in respect of documents that conceal a deliberate abuse of statutory power: Attorney-General (NT) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500 at 515; and see, recently, AWB Limited v Cole (No 5) [2006] FCA 1234 (Young J) at [210] ff. In particular, Mr Franks believes that he was improperly the subject of bankruptcy proceedings brought against him in relation to his non-payment of costs. He claims that they were initiated by Council officers acting contrary to the decision of the elected Council. The Council's position is that its conduct was proper, and that included in the exempt documents is material which vindicates its conduct.
 </sentence>
<sentence from="[2006] FCA 1274" id="cs72">
 On 18 September 2006, I delivered reasons for judgment in this proceeding and adjourned the matter to Monday 25 September 2006 for any argument as to the orders that should be made to give effect to my reasons: AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 at [251] . </sentence>
</citances>
<legistitles>
<title id="l0">EVIDENCE ACT 1995 </title>
<title id="l1">EVIDENCE ACT 1995 - SECT 69 Exception: business records</title>
<title id="l2">EVIDENCE ACT 1995 - SECT 78 Exception: lay opinions</title>
<title id="l3">EVIDENCE ACT 1995 - SECT 79 Exception: opinions based on specialised knowledge</title>
<title id="l4">EVIDENCE ACT 1995 - SECT 135 General discretion to exclude evidence</title>
<title id="l5">JUDICIARY ACT 1903 </title>
<title id="l6">JUDICIARY ACT 1903 - SECT 39B Original jurisdiction of Federal Court of Australia</title>
<title id="l7">ROYAL COMMISSIONS ACT 1902 </title>
<title id="l8">ROYAL COMMISSIONS ACT 1902 - SECT 2 Power to summon witnesses and take evidence</title>
<title id="l9">ROYAL COMMISSIONS ACT 1902 - SECT 6AA Legal professional privilege</title>
<title id="l10">ROYAL COMMISSIONS AMENDMENT ACT 2006 (NO. 52, 2006) </title>
<title id="l11">WHEAT MARKETING ACT 1989 </title>
<title id="l12">WHEAT MARKETING AMENDMENT ACT 1997 </title>
<title id="l13">WHEAT MARKETING LEGISLATION AMENDMENT ACT 1998 </title>
<title id="l14">WHEAT MARKETING LEGISLATION AMENDMENT ACT 1998 No. 103, 1998 - SECT 5 Amendment of constitutions of nominated companies</title>
<title id="l15">FEDERAL COURT RULES 1979 </title>
</legistitles>
</case>