Yes, ACP is recognized in Australia both at common law and under the statute.

At common law, ACP is referred to as "legal professional privilege". However, with the introduction of uniform Evidence Acts in Australia from 1995 in both the Federal jurisdiction and some States and Territories, the concept of legal professional privilege was revised to "client legal privilege" (indicating that the privilege belongs to the client).  Although referred to as 'uniform', the Evidence Acts introduced across Federal and some State and Territory jurisdictions do contain variations. 

The enactment of Evidence Acts has resulted in the dual operation of the common law and statute in those jurisdictions where the Acts apply.  In general, the Evidence Acts apply to privilege issues that arise when evidence is adduced at trial, in interlocutory proceedings or on appeal, while the common law applies to privilege issues that arise pre-trial, such as in relation to discovery (unless otherwise addressed in statute or rules of court).  However, certain State and Territory Evidence Acts have been amended to apply to privilege issues in pre-trial procedures, such as discovery.

Under the common law, there are three elements to be established for privilege to apply to communications between a client and their legal adviser:

1. the communication must pass between the client and the client's legal adviser;
2. the communication must be made for the dominant purpose of enabling the client to obtain legal advice, or for the purpose of actual or contemplated litigation; and
3. the communication must be confidential.

Although legal professional privilege protects 'communications' rather than documents, case law has recognized that legal professional privilege vests in documents where they record or constitute a communication prepared, given or received for the purpose of obtaining legal advice or assistance.¹  There are a number of circumstances where the Courts have recognized that legal professional privilege could arise, including (but not limited to) -

• any communication between a party and its professional legal adviser if it is confidential and made to, or by, the professional adviser in his or her professional capacity and with a view to obtaining or giving legal advice or assistance;
• notes, memoranda, minutes and other documents made by the client, officers of the client or the legal adviser of the client of communications which are themselves privileged (or containing a record of those communications), or relate to information sought by the legal adviser to enable him or her to advise the client or to conduct litigation on its behalf; and
• communications and other documents passing between the party's solicitor and a third party if it is made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence.²

As noted above, the dominant purpose test has been adopted in Australia.³  Where a communication is not made or prepared for the dominant purpose of enabling the client to obtain legal advice or for the provision of 'professional legal services' relating to actual or anticipated legal proceedings, the privilege does not apply.  Determining the 'dominant purpose' for which a document was brought in to existence is a question of fact. Similarly, where there are competing purposes, it is again a question of fact whether one purpose 'dominates' or prevails.⁴  Broadly speaking, the relevant purpose is the purpose of the person who creates the document which contains the communication, however, this will differ in circumstances where the document is commissioned by an external solicitor or in the case of a corporation. 

The Evidence Acts delineate legal advice privilege (section 118) and litigation privilege (section 119).  Under section 118 of the Evidence Act (Cth), evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

1. a confidential communication made between the client and a lawyer; or
2. a confidential communication made between 2 or more lawyers acting for the client; or
3. the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. 

The reference to "or another person" in subparagraph (c) of section 118 was introduced in 2009, when the Evidence Act (Cth) was amended to align with common law developments, extending advice privilege to the contents of a confidential document (whether delivered or not) prepared by a third party for the dominant purpose of the lawyer providing legal advice to the client.

In accordance with section 119 of the Evidence Act (Cth), evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

1. confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
2. the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

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¹ Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49.

² Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-6; Referred to with approval by the Full Court of the Federal Court of Australia in Commonwealth v Dutton (2000) 102 FCR 168.

³ Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49.

⁴ Singapore Airlines v Sydney Airports Corporation & Anor [2005] NSWCA 47; Sparnon v Apand Pty Ltd (1996) 68 FCR 322, 327-328, Branson J.

Not applicable. 

There is not a distinction made in applying the principles of privilege in civil and criminal proceedings, however, both statute and common law recognize a form of 'crime-fraud exception', discussed further in response to Section E of this questionnaire.

Australian Government regulatory authorities, such as the Australian Securities and Investments Commission, may require the disclosure of documents or information through the exercise of information gathering powers, which are provided for under statute. However, in responding to compulsory information gathering notices, individuals or corporations can withhold from production information or documents over which a valid claim of legal professional privilege may be made.  

Some Australian Government regulatory authorities provide for the voluntary confidential disclosure of legally privileged information.  This may be facilitated through a voluntary disclosure agreement, which outlines the terms on which the relevant regulatory authority will accept such information. The voluntary disclosure of legally privileged information through voluntary disclosure agreements may be beneficial from a public policy perspective (such as by assisting with the efficient resolution of a regulator's investigation), however, such agreements do not necessarily prevent a third party from asserting that privilege over the disclosed information has been waived.

In circumstances where the Evidence Acts apply, section 117 provides clarity around who a 'client' is in the context of 'client legal privilege'.  Under the Evidence Act (Cth) section 117 defines 'client' to include the following:

1. a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service);
2. an employee or agent of a client;
3. an employer of a lawyer if the employer is:
   1. the Commonwealth or a State or Territory; or
   2.  a body established by a law of the Commonwealth or a State or Territory;
4. if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client—a manager, committee or person so acting;
5. if a client has died—a personal representative of the client;
6. a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made.

Oral or written confidential communications between in-house counsel and their employer will be protected by privilege where the communication satisfies the following requirements:

• it is made for the dominant purpose of giving or receiving legal advice, or for conducting actual or anticipated litigation;
• the professional relationship of lawyer and client is maintained between counsel and the employer, ensuring an independent character of the advice; and
• counsel is qualified to practice law, and is subject to the duty to observe professional standards and the liability to professional discipline.¹

The second requirement outlined above emphasizes the need for in-house counsel to be acting in a legal capacity and for the advice to be of a legal nature.  It also clearly articulates the need for in-house counsel to ensure that their advice is independent in order for the legal professional privilege to apply.

It was held by the Western Australia Supreme Court in CMA Assets Pty Ltd (formerly known as CMA Contracting Pty Ltd) v John Holland Pty Ltd (No 3) that:²

The legal professional privilege applies to in-house lawyers as it does to those in private practice although the communications must qualify in the usual way as involving the giving or seeking of legal advice or as communications in relation to litigation and with a sufficient degree of independence.

With respect to the third requirement, there are conflicting views on whether counsel must also hold a current practicing certificate, however it remains a very relevant factor in determining whether privilege exists.³ 

Where the Evidence Acts apply, the definition of "lawyer" in section 117 clarifies the position with respect to whether it is necessary for a practicing certificate to be held in order for the privilege to exist. By way of example, section 117 of the Evidence Act (Cth) states:

      "lawyer" means:

1. an Australian lawyer; and
2. an Australian-registered foreign lawyer; and
3. an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country; and
4. an employee or agent of a lawyer referred to in paragraphs (a), (b) or (c).

'Australian lawyer' is defined as "a person who is admitted to the legal profession by a Supreme Court of a State or Territory under a law of a State or Territory specified in the regulations".

Difficulties can arise when in-house counsel holds multiple roles within a company (for example company secretary or director in addition to general counsel).  Given legal professional privilege only protects communications made by a lawyer while acting in a legal capacity, it may be more challenging for a general counsel occupying multiple roles to establish that an internal communication or document prepared by them is protected by legal professional privilege.

Factors that may bear weight on whether in-house counsel are considered sufficiently independent for a valid claim of privilege to be established on documents recording communications to or from them include:⁴

where in-house counsel's remuneration is tied to the performance of the business; or

the nature and extent to which in-house counsel participate in meetings concerning business strategy.

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¹ Waterford v Commonwealth (1987) 163 CLR 54, a decision of the High Court of Australia in relation to a case that involved in-house counsel in a government department.  See also Australian Hospital Care Pty Ltd v Duggan (No 2) [1999] VSC 131, and Southern Equities v Arthur Andersen & Co (No 6) [2001] SASC 398. 

² CMA Assets Pty Ltd (formerly known as CMA Contracting Pty Ltd) v John Holland Pty Ltd (No 3) [2012] WASC 501 at [5].

³ In Vance v McCormack (2004) 154 ACTR 12, Crispin J held at first instance that a practicing certificate was essential.  This decision was reversed by the Court of Appeal in Commonwealth v Vance [2005] ACTCA 35. 

⁴ Justice Peter Graham, "Establishing and Maintaining a Claim for Legal Professional Privilege in the light of Telstra Corporation Limited v Minister for Communications, Information Technology and The Arts (No. 2) [2008] FedJSchol 47; [2007] FCA 1445: The Quandary facing In - House Counsel" (FCA) [2008] FedJSchol 6 at [10].  A copy of the speech can be obtained at:http://classic.austlii.edu.au/au/journals/FedJSchol/2008/47.html.

Not applicable. 

Not applicable. 

Yes, the common interest doctrine is recognized in Australia at both common law and under the Evidence Acts. 

In Australia, the common interest doctrine is known as "common interest privilege" and operates as an exception to the general rule regarding waiver of privilege. Where common interest privilege applies, the disclosure of confidential communications between a lawyer and their client to a third party will not constitute a waiver of privilege. ¹

Section 122(5)(c) of the Evidence Act (Cth) provides:

(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because:

                  …

(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or foreign court.

Accordingly, statutory common interest privilege arises where there is actual, pending or anticipated litigation and at the time of disclosure:

• the communications disclosed were subject to legal professional privilege;
• there existed a 'common interest' between the client and the third party; and
• the common interest is linked to the actual, pending or anticipated proceedings where the legal professional privilege arises. ²

Statutory common interest privilege under section 122(5) of the Evidence Act (Cth) only applies where there is actual, pending or anticipated litigation. However, at common law, common interest privilege also applies where legal advice is sought in the absence of litigation. ³

The Evidence Acts do not indicate what constitutes a "common interest", however, the Courts have provided some guidance. For example, the New South Wales Court of Appeal stated the following with respect to the concept of common interest privilege in Marshall v Prescott: ⁴

Normally, disclosure of protected content by the holder of the privilege causes the privilege to be lost. This is because of the inherent inconsistency between failing to safeguard the confidentiality essential to privilege and, at the same time, seeking to maintain the immunity that the privilege confers. Where there is, in relation to actual or pending litigation (or its course or outcome), a commonality of interest between, on the one hand, a party to the litigation who is also the holder of the privilege and, on the other, the person to whom disclosure of the privileged content is made by that party for a purpose relevant to that litigation, the commonality of interest supplies a rational basis for inferring an intention that the party’s confidentiality should continue and the party’s privilege should be maintained, even though the subject matter of the disclosure has passed into the hands of the other person.

The Courts have noted that common interest is not is "…rigidly defined and it is a question of fact in each case". ⁵  A finding of a 'common interest' therefore depends upon the factual circumstances of the relationship between the relevant parties.

In Fair Work Ombudsman v Quest South Perth Pty Ltd, McKerracher J stated the following with respect to satisfying the 'common interest' component: ⁶

While it may be accepted that a mere common interest in the outcome of the litigation will be insufficient to enable a party with that interest to rely upon it for the purposes of resisting a waiver conclusion, it is not necessary for “common interest” privilege that there be identical interests nor does it require that the interest be held only by those who are parties to the action: see the discussion in Farrow Mortgage Services Pty Ltd (In liq) v Webb (1996) 39 NSWLR 601 (at 608–609) where Sheller JA, with whom Waddell AJA agreed (thereafter Meagher JA dissented), noted that separately from circumstances giving rise to joint privilege are those where parties have a shared or similar interest in the subject of communications between one or more of them and a legal adviser.

McKerracher J went on to provide examples of relationships that may give rise to a shared or similar interest, including: ⁷

• insurer and insured, in defeating a claim against the insured; or
• neighbors opposing development in a residential area.

Common interest privilege can generally only be waived with the consent of the parties to whom it belongs. At both common law and under s 122(1) of the Evidence Act (Cth), privilege can only be waived with the client's consent.

__________

¹ Luke Buchanan and Sid Wang, "Common interest privilege", (September 2002) Litigation and ADR Issues: Clayton Utz.

² Luke Buchanan and Sid Wang, "Common interest privilege", (September 2002) Litigation and ADR Issues: Clayton Utz at page 6.

³ State of South Australia and Another v Peat Marwick Mitchell and Others (1995) 65 SASR 72.

⁴ Marshall v Prescott [2013] NSWCA 152 at [65] per Barrett JA.

⁵ Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 at 280 per Giles J.

⁶ Fair Work Ombudsman v Quest South Perth Pty Ltd [2012] FCA 608 at [36] per McKerracher J.

⁷ Fair Work Ombudsman v Quest South Perth Pty Ltd [2012] FCA 608 at [36] per McKerracher J.

There is no requirement for an agreement to exist for common interest privilege to be found. Rather, as noted above the existence of common interest privilege is a question of fact. ¹

__________

¹ Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 at 280 per Giles J.

Australia permits the operation of litigation funders. The High Court's majority decision in Campbells Cash and Carry Pty Limited v Fostif Pty Ltd ¹ is considered the primary authority that litigation funding is neither an abuse of process nor contrary to public policy in the context of Australian proceedings.

In July 2020, the Australian Government enacted the Corporations Amendment (Litigation Funding) Regulations 2020 (Cth), amending the Corporations Regulations 2001 (Cth). As a result, litigation funding schemes entered into on or after August 22, 2020, will generally need to be registered as a managed investment scheme. ² The Amendment also brought funders under the Australian Financial Services Licence (AFSL) regime, creating specific obligations in this regard. 

There are no specific professional rules that apply to dealing with litigation funders within Australia. However, professional conduct rules exist to regulate general issues which may arise with respect to a solicitor's interaction with a litigation funder involved in proceedings.  These include ensuring a solicitor's paramount duty remains to the court and the administration of justice and upholding the duty to act in the best interests of the client. ³

__________

¹ (2006) 229 CLR 386.

² For those schemes or arrangements that are not considered to be managed investment schemes see Division 1 of Part 5C.11 (Exemptions and modifications) of the Corporations Regulations 2001 (Cth).

³ See for example Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) r 3 and r 4.1.1.

Courts across multiple jurisdictions in Australia have dealt with privilege as it applies to litigation funders on a case-by-case basis.

These cases have largely concerned communications between solicitors and litigation funders and have therefore applied traditional approaches to privilege, such as common interest privilege ¹, litigation privilege ² and advice privilege. ³

¹ Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2006] NSWSC 234.

² Hastie Group Ltd (In Liq) v Moore (t/as Deloitte Touche Tohmatsu) (2016) 339 ALR 635.

³ IOOF Holdings Ltd v Maurice Blackburn Pty Ltd [2016] VSC 311

Yes, the client-fraud exception is recognized in Federal statute, together with some State and Territory jurisdictions. The exception has also been recognized by common law.

In the Federal jurisdiction, section 125(1) of the Evidence Act (Cth) provides that the act does not prevent the adducing of evidence of:

1. communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offense or the commission of an act that renders a person liable to a civil penalty, or
2. communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of deliberate abuse of power.

For the purposes of section 125, under sub-section (2) of s 125, if the commission of the fraud, offense or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that:

1. the fraud, offense or act, or the abuse of power, was committed, and
2. a communication was made or document prepared in furtherance of the commission of the fraud, offense or act or the abuse of power,

the court may find that the communication was so made or the document so prepared.

Some, but not all, Australian States and Territories have recognized these provisions in their equivalent Evidence Acts. ¹

The crime/fraud exception has also been considered at common law. In AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5), Young J noted that the fraud exception is wide-ranging, covering a "wide species of fraud, criminal activity or actions taken for illegal or improper purposes" as well as "'trickery' and 'shams'". ²  Where a client is engaged in activities covered by the broad definition of "fraudulent conduct", communications between that client and its lawyer will not be protected by privilege, regardless of whether or not the lawyer is involved in the fraud to any degree. ³

In Hodgson v Amcor Ltd; Amcor Ltd v Barnes (No 2), Vickery J of the Victorian Supreme Court summarized the circumstances in which privilege would not attach to a lawyer-client communication (as initially outlined by the High Court of Australia in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501), being communications: ⁴

1. made for some illegal or improper purpose … contrary to public interest … [or] ulterior purpose;
2. brought into existence in furtherance of a crime or fraud;
3. for the purpose of furthering some illegal object;
4. in furtherance of fraud or crime; and
5. [for] an illegal or improper purpose or the furtherance of an illegal object”"

To prove that some kind of fraudulent conduct has occurred for the purpose of the exception, a prima facie case must be able to be established.  There must be some evidence that the allegation has some foundation in fact, not a "mere assertion". ⁵

¹ Evidence Act 2011 (ACT) s 125; Evidence (National Uniform Legislation) Act 2011 (NT) s 125; Evidence Act 1995 (NSW) s 125; Evidence Act 2001 (TAS) s 125; Evidence Act 2008 (VIC) s 125

² (2006) 155 FCR 30 at [211]-[212].

³ AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) (2006) 155 FCR 30 at [214], citing Clements, Dunne & Bell Pty Ltd v Commissioner of Australian Federal Police (2001) 48 ATR 650; 188 ALR 515 at [213].

⁴ Hodgson v Amcor Ltd; Amcor Ltd v Barnes (No 2) [2011] VSC 204, per Vickery J at [70] citing Commissioner of AFP v Propend Finance (1997) 188 CLR 501.

⁵ Commissioner of Australian Federal Police v Propend Finance (1997) 188 CLR 501, per Brennan CJ (at 514), Dawson (at 521), Toohey (534), Gaudron (546), McHugh (556) and Kirby JJ (592).

Section 119 of the Evidence Act (Cth) provides for the protection of confidential communications, as well as the contents of certain confidential documents (whether delivered or not), obtained or prepared in anticipation of litigation.

Section 119 provides:

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

1. confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
2. the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is, may be, or was or might have been, a party.

The statutory provisions provide for the protection of confidential communications, as well as the contents of certain confidential documents (whether delivered or not).  What is important is that the "communication constituted by the document" be protected by the statutory provisions.¹

Determination of a claim for privilege under section 119 calls for a two-stage process, requiring that the court be satisfied:

1. that the requirements of the relevant legislative provision have been established; and
2. that production of the document, or part of a document, would result in the disclosure of confidential communication.

The party claiming privilege must demonstrate to the court that section 119 has been satisfied and that the document, or the relevant part of it, discloses confidential information.

__________

¹ In the matter of Southland Coal Pty Ltd (rec & mgrs apptd) (in liq) (2006) 59 ACSR 87 at 94.

Accountant-client privilege is not recognized in Australia.

While a separate 'mediation privilege' is not recognized in Australia, the concept of 'without prejudice privilege' exists and is addressed in Section C of this questionnaire.

Australia recognizes the concept of "without prejudice privilege", which provides that communications between parties aimed at the settlement of a dispute cannot be put into evidence without the consent of the parties in the event the negotiations are unsuccessful.  This includes:

• offers of relief;
• offers of payment;
• offers of compromise; or
• admissions,

made for the purposes of settling a dispute between the parties.

Without prejudice privilege, therefore, operates as a joint privilege and enables the parties to attempt to negotiate the resolution of a dispute, without fear that their communications could later be used against them in court.  

Offers and negotiations, either written or oral, expressed to be "without privilege" may not be disclosed to the court except by consent of the parties. ¹  The contents of the document or statement can then not be put into evidence without the consent of both parties. ²

Even if not expressly conducted on a "without prejudice" basis, genuine negotiations conducted with a view to the compromise of pending proceedings may be held to be privileged. ³  However, simply using the phrase "without prejudice" will not be sufficient to attract privilege if the communication is not actually part of settlement negotiations.

The rule ceases to apply to some degree if a settlement is reached between the parties.  This is because evidence of the "without prejudice" communications will be admissible to prove the contract evidencing the settlement and may be scrutinized by the court to determine whether such an agreement has been reached. ⁴

After an agreement has been reached, the correspondence or other communications leading up to it are inadmissible in any subsequent litigation connected with the same subject matter, whether between the same or different parties, and these communications are also protected from subsequent discovery by other parties to the same litigation. ⁵

Where without prejudice privilege is found to exist, not only will a particular letter in the correspondence be protected but all subsequent parts of the same correspondence on both sides (even if subsequent correspondence is not expressed to be "without prejudice").  If, however, there is a clear break in the chain of correspondence, or a party demonstrates an intention that the ensuing letters are not privileged, then the privilege will not cover those subsequent letters.

In relation to adducing evidence of without prejudice privilege communications, section 131(1) of the Evidence Act (Cth) applies in the Federal jurisdiction. This section provides:

1. Evidence is not to be adduced of:
   1. a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or
   2. a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.

The purview of section 131(1) is wide and applicable to both civil and criminal proceedings. Section 131(2) specifies circumstances where section 131(1) will not apply, including if:

• the persons in dispute consent to the evidence being adduced in the proceeding concerned or, if any of those persons has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other persons so consent; or
• the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute; or
• the communication or document included a statement to the effect that it was not to be treated as confidential.

The operation of the Evidence Act does not exclude the operation of common law principles relating to "without prejudice" communications unless those rules are inconsistent with the Evidence Act. ⁶

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¹ See eg. Walker v Wilsher (1889) 23 QBD 335, cited in Halsbury's Laws of Australia at [325-6705].

² See Re Turf Enterprises Pty Ltd [1975] Qd R 266.

³ Rodgers v Rodgers (1964) 114 CLR 608 at 614.

⁴ Tomlin v Standard Telephones & Cables Limited [1969] 3 All ER 201 at 203.

⁵ Rush and Tompkins Limited v Greater London Council and Anor [1988] 3 All ER 737.

⁶ Pepsi Seven-Up Bottlers Perth Pty Limited v Commissioner of Taxation (1995) 62 FCR 289 at 301; Idoport Pty Limited and Ors v National Australia Bank Limited and Ors (2000) 50 NSWLR 640 at [25]-[27].