R v Hutson (Ruling No. 6)[2025] QDCPR 2

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant faces trial on the following charges:

   1. Dishonest use of position with the intention of gaining an advantage – s. 184(2) of the Corporations Act 2001 (Cth). (Counts 1 and 3). These two offences are respectively alleged to have occurred on or about 10 July 2015 and on or about 4 August 2015.
   2. Failure to exercise powers or discharge duties for a proper purpose on or about 13 July 2015 – s. 184(1) of the Corporations Act 2001 (Cth). (Count 2).
   3. Fraud as a director to the value of $30,000 or more between 6 August 2015 and 2 October 2015 – s. 408C(1)(a) of the Criminal Code (Qld). (Count 4).
   4. Attempting to pervert the course of justice on or about 10 April 2016 – s. 140 of the Criminal Code (Qld). (Count 14).
2. [2]
   Counts 5 – 13 inclusive have been discontinued.
3. [3]
   Insofar as some factual background is necessary to understand the broad factual allegations in this prosecution, they are summarised in an earlier interlocutory judgment in these proceedings in R v Hutson^[1] (“Judge Williamson’s judgment”). More details will be referred to as necessary in dealing with these applications.
4. [4]
   For the moment, it is sufficient to highlight the following points:

1. At the relevant time, the defendant was a director and the chair of G8 Education Limited (“G8”);
2. The defendant is alleged, in part, to have acted dishonestly in relation monies owned by, or controlled by, G8;
3. The investigating agency for the purposes of this prosecution was the Australian Investment and Securities Commission (“ASIC”); and
4. The prosecuting agency is the Commonwealth Director of Public Prosecutions (“CDPP”).

5. [5]
   It is clear from the history of the proceedings that a significant plank in the defendant’s case is an attack on the nature and propriety of the ASIC investigation.
6. [6]
   For present purposes, there were three applications argued, namely:

1. A claim by the CDPP that 10 identified draft statements are subject to legal professional privilege (“LPP”); and

2. A claim by ASIC that 609 identified draft statements, are subject to LPP;
3. An application for a ruling by ASIC that the aforementioned 609 statements “are not required to be disclosed”.

7. [7]
   However, it is clear from the submissions that the last-mentioned application is in reality formulating a position in the event that the associated claim for LPP is upheld. It has previously been conceded by Counsel for the prosecution that they are disclosable, subject to the determination of any LPP claim.
8. [8]
   On 17 December, 2024 I gave rulings that are reflected in the orders on the coversheet of this judgment. These are my reasons for those rulings.

Legal professional privilege

9. [9]
   A concise summary of the tests for LPP is found at [40]-[43] of Judge Williamson’s judgment.  No party takes issue with its accuracy.
10. [10]
    It is also uncontroversial that the claimant in each instance bears the onus of satisfying me that LPP attaches to the respective documents.

Factual background - generally.

11. [11]
    Some of the chronology relevant to these applications can be found in one of my earlier rulings in this proceeding, R v Hutson (Ruling No. 4)^[2] (“Hutson No. 4”). That chronology should be read in conjunction with these reasons.
12. [12]
    Further, in Hutson No. 4 I noted that there had been an application for disclosure of all draft witnesses that had not been shown to the witnesses.^[3] The prosecution conceded that they were disclosable, after oral submissions had been heard. The statements which were the subject of that application are the subject of the claims of LPP now made by the CDPP and, separately, ASIC.
13. [13]
    Further context is gained from an appreciation that after Judge Williamson’s judgment, ASIC maintained its claim of privilege over the draft statements that were the subject of the application before his Honour, for some time. The defendant filed an application returnable on 11 September 2023 for, amongst other things, a stay of proceedings based, largely, on the asserted injustice in the maintenance of the claim of privilege. Shortly before that application was to be heard, ASIC abandoned their reliance on the privilege and disclosed 326 draft statements. The defendant contends that access to those statements has been helpful in building her case about the deficiencies in the investigation, which is a plank in her defence.
14. [14]
    Each of the draft statements the subject of these applications were relevantly authored between 8 November 2023 and 25 September 2024, and so are subsequent to the earlier disclosure.

Factual background - ASIC’s LPP claim

15. [15]
    ASIC claims privilege over 609 documents that, for simplicity, I will call draft statements. There are many iterations for numerous witnesses and hence the number of witnesses affected is far fewer than that number.
16. [16]
    The only evidence adduced for the purposes of the application by ASIC was an affidavit under the hand of Mark John Pangbourne who holds a senior management role in ASIC and who has had general oversight of the conduct of this particular investigation on a day-to-day basis since October 2023. Much of its contents are provided on an information and belief basis.
17. [17]
    Attached to Mr Pangbourne’s affidavit is a schedule listing 609 entries, each referring to the draft statement of the various witnesses. Of particular relevance, the schedule refers to the date and time the document was “modified”, and the name of the “ASIC officer who last modified” the document. From a survey of the whole of the document, the modifying officers are said to be a mixture of solicitors, investigators, and a data analyst. There are a handful of entries that do not refer to a person by name. This is said to be caused on occasion by the document management program used by ASIC not “synching” correctly at that time, but the identity of the person modifying can be deduced by a process described by Mr Pangbourne. There are also some entries referring to external modification, which will become apparent in these reasons.
18. [18]
    It deserves particular note that two of the lawyers who are recorded as being involved in the modification of some of the draft statements are Mr Paleologos and Mr Bastianon. Their dual roles as admitted lawyers and investigators was noted in Judge Williamson’s judgment and can be taken to be incorporated into these reasons. There are numerous entries in the schedule concerning Mr Paleologos’ draft statements.
19. [19]
    Mr Pangbourne groups the draft statements into certain categories in order to explain how they were dealt with. This is appropriate and helpful.

1. a)
   Category 1 statements are draft statements prepared and modified in 2023 within ASIC by Mr Bastianon and Mr Paleologos. These drafts were prepared as a result of a request received from the CDPP. There are 15 entries in the schedule in this category, relating to four witnesses. However, in oral submissions ASIC indicated that it no longer claimed privilege over documents numbered 546 – 548 inclusive, which were nominated as category 1 statements.

1. b)
   Category 2(a) statements were prepared as a result of a request from the CDPP that a statement be taken from one new witness, and that further statements be taken from certain other witnesses. As a result, ASIC requested the Australian Government Solicitor (“AGS”) to prepare draft witness statements of those witnesses, on the basis of file notes of conferences held with those persons. The category 2(a) statements are those prepared by the AGS as a result of the request. They are said by Mr Pangbourne to have been prepared by AGS lawyers, but no basis for that statement is apparent in his affidavit. There are 11 entries in the schedule for this category, relating to six witnesses.

1. c)
   Once those statements were received by ASIC from AGS, some were amended by ASIC officers. These amended draft statements have been referred to as category 2(b) statements. This category also includes other statements that were prepared by ASIC staff rather than AGS lawyers. There are 152 entries in the schedule for this category relating to seven witnesses.

1. d)
   Those category 2(b) statements were then sent to the CDPP for comment and review prior to them being shown to the respective witnesses. These have been designated as category 2(c) statements. There are 13 entries in the schedule for this category relating to seven witnesses.

1. e)
   Category 2(d) statements comprise those category 2(c) statements that were returned by the CDPP with comments. There are five entries in the schedule for this category relating to five witnesses.

1. f)
   Category 3(a) statements are draft statements prepared by or modified by ASIC staff. There are 402 entries in the schedule for this category relating to five witnesses.

1. g)
   Category 3(b) statements are some of the category 3(a) statements which were sent from ASIC to the CDPP for review and comment. There are 10 entries in the schedule for this category relating to three witnesses.

1. h)
   The sole category 3(c) statement is the one category 3(b) statement which was returned by the CDPP to ASIC containing comments. There is one entry in the schedule for this category relating to one witness.

20. [20]
    ASIC claims litigation privilege in respect of all 609 draft statements, and advice privilege in respect of all category 2 and category 3 draft statements.
21. [21]
    Mr Pangbourne deposes that none of the draft statements were shown to the respective witnesses prior to the final draft, apart from Paleologos’. He deposes that, apart from Mr Paleologos, any draft statement shown to a witness has been disclosed to the defendant.

Factual background - the CDPP’s LPP claim.

22. [22]
    For the purposes of the application by the CDPP, an affidavit under the hand of Joanne Philipson was filed. Ms Philipson is a Deputy Director in the Office of the CDPP. She has general responsibility for the conduct of this particular investigation, although she has no direct involvement in the day-to-day carriage of the prosecution. She identified the officer who has that responsibility and says that she has been informed of the matters in her affidavit by that person. Much of its contents are provided on an information and belief basis.
23. [23]
    She also expressly adopted a portion of an earlier statement filed in response to the earlier application for disclosure of this material by Andrew James Doyle which outlined the operations of the Office of the CDPP and the roles of legal staff in the Office.
24. [24]
    The Director’s claim is concerned with 10 documents that, again for simplicity, I will call draft supplementary statements of six witnesses who are intended to be called at trial. Nine of them were created, in the sense explained below, between 10 May 2024 and 13 May 2024, and the last on 22 August 2024.
25. [25]
    In respect of the first nine draft statements, conferences were conducted with seven witnesses by both Counsel briefed to prosecute and a Senior Federal Prosecutor, Ms Mahomed Ismail, in April 2024. Notes of those conferences were sent to ASIC for the purpose of obtaining statements from those witnesses. Those notes have been disclosed to the defendant. Subsequently the CDPP received draft statements for five of those witnesses for revision prior to presenting the drafts statements to the witnesses. These are what the ASIC application refers to as category 2(c) statements.
26. [26]
    Suggested amendments were variously made by Ms Mahomed Ismail and junior Counsel between 10 May 2024 and 13 May 2024. Those amended draft statements were sent to ASIC with the intention they be shown to the witnesses for signing. These are what the ASIC application refers to as category 2(d) statements.
27. [27]
    Four of those suggested amendments were authored in the relevant sense by Ms Mahomed Ismail, and litigation privilege is claimed in respect of those documents. The remaining six suggested amendments were authored by junior Counsel briefed by the Commonwealth Director for the prosecution of this trial. Both litigation and advice privilege is claimed in respect of each of those documents.
28. [28]
    The same process was followed later in 2024 in relation to the tenth statement, with proposed amendments to that witness’ statement being provided by junior Counsel. Once those amendments were incorporated into the statement, a conference was held with that witness. A file note of that conference has been disclosed to the defendant. Further amendments were made to that statement, and it has been disclosed to the defendant.
29. [29]
    Both litigation and advice privilege is claimed in respect of this document.
30. [30]
    Ms Philipson deposes that none of the ten statements over which the claim is made have not been shown to the respective witnesses.

A preliminary issue

31. [31]
    In Judge Williamson’s judgment^[4], draft statements which had not been shown to or adopted by the witnesses were the subject of a LPP claim by ASIC, which was upheld. His Honour also observed that the statements were disclosable.^[5] That has been conceded by ASIC and the CDPP in this case, correctly in my view. Notions of judicial comity tend to the view that I should, but not must, follow the decision so far as it is concerned with the LPP issue unless I consider it to be plainly or clearly wrong.^[6]
32. [32]
    The defendant seeks to answer that in a few ways. First, by pointing to the fact that his Honour was considering an application to set aside a subpoena and, so it is said, the point did not arise. With respect, that is a distinction of no moment. If LPP applies, it applies regardless of the nature of the application.
33. [33]
    Second, it is in effect argued that the specific disclosure requirements under the Criminal Code abrogates the availability of reliance on LPP. This is an argument that was not considered by Judge Williamson, and it requires some deeper consideration.
34. [34]
    Judge Williamson found that LPP was available to a claimant in respect of documents which otherwise must be disclosed to a defendant in a criminal trial. More specifically he found that there was no imputed waiver in the continuation of the prosecution in circumstances where privilege was claimed over 326 draft statements.^[7] As the defendant’s argument there relied on imputed waiver, there was no consideration of the statutory requirements of disclosure, and what impact, if any, they have on the availability of LPP. The present argument does require that consideration.
35. [35]
    In Hutson (No. 4)^[8] I found that the statutory disclosure provisions at Chapter 62, Chapter Division 3 of the Criminal Code can apply where the investigation and the commencement of the prosecution has been undertaken other than by a police officer, as occurred here. Here, the 10 statements the subject of the CDPP claim are in the physical possession of the prosecution. The remaining 609 are, by virtue of that finding, also in the possession of the prosecution, although not physically in its possession. This argument therefore potentially affects all statements the subject of the two applications.
36. [36]
    The defendant relies on the mandatory terms of s. 590AJ(2)(e) and (f) of the Code as a central plank of its argument; “… the prosecution must give the accused person” the copies of the draft statements. She also points to the disclosure obligation as being fundamental, as provided in s. 590AB(1) of the Code.
37. [37]
    The defendant, appropriately, concedes that LPP is an important common law right or immunity and, as such, can only be abrogated by express legislative provision, or where the intention to displace the common law right is expressed with irresistible clearness.^[9] That is, the principle of legality applies. She accepts that there is no express abrogation of LPP but argues that, as a matter of statutory construction, it must be taken to have been necessarily abrogated by the mandatory terms of the legislation. The argument continues to the effect that as the legislative provisions are found within codified piece of legislation, they should be taken to govern the requirements of disclosure, regardless of common law rights. Had the legislature intended that LPP would achieve primacy over the disclosure provisions, it would have provided for that in s. 590AQ of the Code, or in some similarly styled provision. Further, as these provisions were introduced into the Code well after LPP was recognised as a common law right or immunity, the absence of any accommodation of it means that it must have been intended to be abrogated.
38. [38]
    The defendant has indicated that she cannot find any instance whee this issue has been litigated ion this State. Neither can I, and so the matter is to be determined absent of any binding authority.
39. [39]
    I do not accept that the legislation shows the irresistible clearness necessary to find that LPP has been abrogated by the general disclosure provisions.
40. [40]
    First, the legislature can be taken to have appreciated that ordinarily a claim of privilege prevails over a duty of disclosure. That has been the basis on which much litigation has been conducted on the topic^[10] and, if confirmation were needed, it was the basis on which the relevant provisions of the Uniform Civil Procedure Rules 1999 were enacted, and remain in place today.^[11]
41. [41]
    The disclosure provisions were introduced into the Code effective from 5 January 2004.^[12] It must be assumed that the legislature was aware of the notorious concept of LPP, but it did nothing to expressly exclude it in whole or in part as it did with other legislation passed, and which commenced, in the same year.^[13] There are other similar legislative examples both before and after the enactment of the disclosure provisions, and the above example has been maintained to this day. The absence of express mention tends to the proposition that there was no intention to interfere with the usual effect of the privilege.
42. [42]
    Second, the legislation itself recognises that the prosecution need not disclose a thing if it considers that disclosure would be contrary to public interest.^[14] As the Commonwealth Director submitted on a different application for LPP heard in the same body of hearings, it is based in public policy.^[15] It is strongly arguable that a claim for LPP means that the disclosure of the statements would be contrary to public interest. The defendant’s submissions suggest that some assessment of the nature of the communication should be undertaken to determine if it is in the public interest.  That may be so in respect of some types of public interest considerations, but it fails to recognise the absolute nature of LPP.
43. [43]
    Regardless of the correctness of that observation, the mere fact that it is arguable means that the right to rely on LPP has not been excluded with irresistible clearness.
44. [44]
    Thirdly, the defendant’s submission requires a strict application of the words used in the provision, yet the analogue provision at s. 590AH has been authoritatively recognised as not being sensibly read with the strictness that the words themselves would otherwise require, albeit in relation to a different consideration.^[16] In my view, this detracts from the essential premise in the defendant’s submission.
45. [45]
    In the circumstances I consider that the observations of Hayne and Bell JJ in X7 v Australian Crime Commission^[17]are apposite. To hold that the general nature of the mandate in s. 590AJ abrogates the well-established common law right or immunity concerned with the privilege attached to confidential communications and documents “would thus depart in a marked degree from the ‘general system of law’.” In my view, the suggested intention to so depart has not been expressed with the irresistible clearness required to accept the defendant’s submission.

Consideration of ASIC’s LPP claim

46. [46]
    For reasons to be explained, ASIC contends that LPP is made out in respect of each of the 609 draft statements. The defendant submits that can only occur if one accepts the hearsay evidence put before the court as being accurate and reliable, and of sufficient weight to rely on it. She submits that there is a lack of direct evidence to establish matters such as that the communications between a salaried legal officer and employer met the criteria to be afforded LPP,^[18] and that the lawyer was in fact performing the role of a lawyer. She submits that is a critical difference between the present application and that before Judge Williamson, where direct evidence was adduced. She has not objected to the admission of the evidence, but submits that it carries insufficient weight to form the basis of satisfaction that ASIC has discharged its onus.
47. [47]
    There are things left to be desired about the evidence put on by ASIC. It is mostly based on information and belief and the schedule attached to the affidavit, importantly, refers to persons who “modified” the various statements. The only definition given to that term was, in effect, that it referred to the person who last accessed or “opened” the document and that, on some occasions, that person might not have done so due to an automatic saving feature of the platform used. There was no effort made to identify those documents which were said to have been automatically saved versions.
48. [48]
    Further, assumptions were made as to why one non-lawyer, Ms Eimany, was recorded as having modified three documents and what actions she did and did not undertake. Those assumptions have been ignored by me.
49. [49]
    Notwithstanding the shortfalls in the evidence, I accept that, apart from what has been identified concerning Ms Eimany, the assertions carry sufficient weight for them to be accepted.
50. [50]
    There can be no doubt that, consistent with observations in cases cited by the defendant, the consideration of a claim of LPP must be guided by sometimes competing considerations that will bear on the ultimate determination. It can also be accepted that the breadth of LPP should be kept confined within struct limits,^[19] But this is not a case where the claimant seeks to expand those established limits, and I am not called on to judge whether I consider the claim to be forensically sound. Those observations apply to both the ASIB and the CDPP claim.
51. [51]
    Without mentioning every relevant assertion, there can be no real doubt that the type of documents and the type of communications that were spoken of were in fact carried out. The fact that the litigation was then on foot, as opposed to the factual scenario facing Judge Williamson, provides support for the asserted nature of the tasks and the communications. As an adjunct to that, the defendant has not pressed with any conviction a suggestion that the “dominant purpose” test has not been established.
52. [52]
    It does not accord with common sense and experience that staff other than practicing lawyers at the AGS Office would prepare the draft statements the subject of category 2(a), or at least that a practicing lawyer would not have had oversight of the process.
53. [53]
    Turning to the proof of the existence of the privilege, ASIC submits that there are three relevant client-lawyer relationships to be considered in determination of the claims concerning the various categories. First there is the relationship between ASIC as the client and AGS as the legal adviser. Second, there is that between ASIC as the client and the CDPP as a the legal adviser and last, there the relationship as between ASIC investigators and other staff members involved in the preparation or modification of statements and the internal ASIC lawyers as the legal adviser. This is perhaps the most unconventional of those relationships in traditional terms, but is established by the evidence of Mr Pangbourne.^[20]
54. [54]
    In addition to the observation at paragraph 52 above concerning the status of AGS lawyers, the designation of certain staff as being lawyers by Mr Pangbourne, who is himself an admitted lawyer, is sufficient for proof of the status of those ASIC employees in the sense considered by Waterford v The Commonwealth. While the attention to that detail could have been greater it is. In circumstances where he is clearly aware of the observations in Judge Williamson’s judgment, sufficient to designate that they are admitted lawyers performing legal duties on a confidential employed basis.
55. [55]
    Leaving aside the statements of Mr Paleologos for the moment, once those relationships are appreciated and given that the timeframes illustrate that the various draft statements were obviously prepared for the dominant purpose of use in the pending litigation, I am satisfied that litigation privilege has been out in respect of each of the draft statements.
56. [56]
    Given that conclusion, it is unnecessary for me to consider ASIC’s claim of advice privilege. Had it been necessary to consider, and without having reached a concluded view, I doubt that advice privilege attaches to category 2(a), 2(b) and 3(a) statements, although I consider it does attach to the rest. The lack of detailed evidence about what was precisely done in respect of the category 2(a), 2(b) and 3(a) statements prevents me from concluding that that there were confidential communications between a legal adviser in their professional capacity and a client, as understood in the above stated relationships, for the dominant purpose of giving or receiving legal advice, so as to be satisfied that the privilege attaches. Those matters are proven in respect of the balance of the statements by a combination of Mr Pangbourne’s evidence - albeit much of it hearsay – and inference drawn from the circumstances then pertaining.
57. [57]
    Turning then to Mr Paleologos’ statements, it can be seen from the terms of the orders made that I have found that all of his statements, other than that listed at entry 570 in the schedule which were “last modified” by him are not privileged.
58. [58]
    The statement at entry 570 in the Schedule is a category 3(b) document and advice privilege attaches to it for the reasons outlined above.
59. [59]
    All other iterations of his draft statements are category 3(a) statements. As such, and again for the reasons outlined above, advice privilege does not attach to them. I am also not satisfied that litigation privilege attaches to them either.
60. [60]
    Litigation privilege requires a confidential communication between a legal adviser and client or between a legal adviser and or client with a third party, in addition to the other prerequisites. Mr Paleologos is both a witness, a legal adviser and a client of the internal legal advisers. In my view, he cannot have a confidential communication between himself as a witness or client on the one hand and with himself as a legal adviser on the other. Given the sparse nature of the evidence relied on by ASIC, I am not satisfied that the requisite relationship has been established.
61. [61]
    More specifically, I accept that another lawyer had on occasions modified his statements. Those documents have been held to have privilege attach, for the reasons outlined in relation to other category 3(a) statements. But it is simply not known what the purpose of any or all of the modifications by Mr Paleologos was.
62. [62]
    The inferences that can be drawn where the witness was not part of the ASIC team, namely that modifications were for the purpose of use in litigation are only one of the inferences open in the case of Mr Paleologos’ statements, but are not safely drawn in my view given the myriad of other reasons that he could have had for modifying the statements. Given the unique position of Mr Paleologos holding multiple roles when compared with the other witnesses whose draft statements are in the Schedule, more specific detail was required to satisfy the onus in his case.
63. [63]
    It is I think also notable that ASIC has impliedly accepted that privilege cannot be properly maintained in respect of draft statements that had been shown to the witness for their input or acceptance. Every time Mr Paleologos “modified” the draft statement, it was, in effect, shown to him. While it is unnecessary to finally decide the issue given my findings, I am of the preliminary view that ASIC had impliedly waived privilege over Mr Paleologos’ statements which I have found did not attract privilege. The inconsistency in its stance on his statements as compared with every other witness may amount to the implied waiver, however I have not reached  concluded view on this issue, and it may be that the observations in Mann v Carnell do not support such a conclusion. Nonetheless, the inconsistent position is perplexing.

Consideration of the CDPP’s LPP claim

64. [64]
    In short, LPP is claimed in respect of draft supplementary statements that were not shown to or adopted by the respective witnesses. They are said to be confidential documents prepared by legal advisors for the dominant, if not sole, purpose of the conduct of the prosecution proceedings that were then on-foot. It is emphasised that none of the subject documents were shown to the intended witnesses, and hence are not the statements of the witnesses.
65. [65]
    The defendant in essence argues the same matters as she did in respect of ASIC’s claim.
66. [66]
    I am satisfied that the claim has been properly made, and that therefore the communications involving those three lawyers in relation to those 10 statements is the subject of LPP.
67. [67]
    It is true that Ms Philipson’s affidavit is, for the most part, asserting information and belief. However, that is unsurprising given the three people who can give direct evidence of the matters contained therein are all directly involved in the conduct of the prosecution. It is very undesirable that anyone directly involved in the prosecution should be exposed to the possibility of cross-examination and/or to credit findings. The hearsay nature of her affidavit is therefore a relevant but, in my view, not disqualifying feature of the claim.
68. [68]
    There is nothing in the suggestion that the qualifications of those three people have not been proven and it therefore cannot be shown that they are in fact acting as lawyers.
69. [69]
    It is a matter of public record that both Counsel are admitted as legal practitioners and, in litigation that has spurned many interlocutory applications, there has been no complaint about the presence of either at the Bar table since they became involved in the matter.
70. [70]
    That Ms Mahomed Ismail is an admitted lawyer was proven by testimony, without challenge. Thre was no evidence adduced that she holds a practicing certificate, but that does not disqualify her from performing the duties of a lawyer while she does them as a government legal officer, in this State. While the holding of a practising certificate may be the benchmark against which the issue of admission to practice law for those who are not a government legal officer in this State, the ultimate issue is satisfaction that the person has been admitted to practice as a lawyer.^[21]In oral submissions the defendant accepted that was the correct test. I am satisfied that Ms Mahomed Ismail has been admitted to practice.
71. [71]
    Based on Ms Philipson’s affidavit, which adopts part of Mr Doyle’s, I am satisfied that ASIC was the investigating agency for the present matter and hence was the CDPP’s client, to adopt the more usually used terminology in claims of this nature.
72. [72]
    I am satisfied that the relevant conduct amount to provision of confidential legal advice.
73. [73]
    Even allowing for the caution attending the information and belief aspects of Ms Philipson’s affidavit, conferring with witnesses, proposing the obtaining of further statements and suggesting amendments to draft statements are all tasks inherently involving the exercising of legal expertise, and the communications effecting that will fall within the communications capable of attracting advice privilege and/or litigation privilege, if other relevant circumstances apply. That is inherently the case where Counsel briefed to prosecute the trial involves themselves in conferences and tasks of the nature referred to here.
74. [74]
    As outlined in Mr Doyle’s affidavit, as adopted by Ms Philipson, those types of tasks are a usual part of Ms Mahomed Ismail’s duties as a lawyer in the office of the CDPP. Pursuant to s. 16 of the Director of Public Prosecutions Act 1983 (Cth), she is entitled to all the rights and privileges as a barrister or solicitor.
75. [75]
    Given the dates of the communications, in the context of the procedural history of the prosecution, and the nature of the tasks being variously undertaken, the defendant was right to concede that the dominant purpose test had been satisfied.
76. [76]
    Further, upholding the claim is consistent with the approach taken in Judge Williamson’s judgment. While I have considered the matter without considering myself bound or in any way restricted by his ruling, and while I may have expressed myself differently in some respects, I generally agree with the approach taken by his Honour, and the outcome. It follows that I am not satisfied his Honour was “clearly” or “plainly” wrong.
77. [77]
    For those reasons, those communications are privileged.