Hillier v Martin No 25 - Legal Professional Privilege Implied Waiver

Original Word Document (108.9 KB) Federal Court of Australia

Hillier v Martin (No 25) [2026] FCA 455

| File number(s): | SAD 113 of 2020 |

| Judgment of: | MCELWAINE J |

| Date of judgment: | 16 April 2026 |

| Date of publication of reasons: | 20 April 2026 |

| Catchwords: | EVIDENCE – Legal Professional Privilege – implied waiver – application of Mastercard Asia/Pacific Pty Ltd v ACCC [2026] FCAFC 37 – implied waiver found –

orders made – no issue of principle. |

| Legislation: | Evidence Act 1995 (Cth) ss 118, 119 |

| Cases cited: | Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd (No 3) [2025] FCA 1043

Jones v AAI Ltd t rading as Vero Insurance [2016] FCA 1244

Kadlunga Proprietors v Electricity Trust of South Australia (1985) 39 SASR 410

Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1

Mastercard Asia/Pacific Pty Ltd v Australian Competition and Consumer Commission [2026] FCAFC 37 |

| Division: | General Division |

| Registry: | South Australia |

| National Practice Area: | Commercial and Corporations |

| Sub-area: | Commercial Contracts, Banking, Finance and Insurance |

| Number of paragraphs: | 41 |

| Date of hearing: | 15 April 2026 |

| Counsel for the Applicant: | Mr R Whitington KC with Mr N Day |

| Solicitor for the Applicant: | Sykes Bidstrup |

| Counsel for the First Respondent: | The First Respondent did not appear |

| Counsel for the Second Respondent: | The Second Respondent did not appear |

| Counsel for the Third Respondent: | The Third Respondent did not appear |

| Counsel for the Fourth, Fifth and Sixth Respondents: | Mr D Blight KC with Mr T Kentish and Mr S Wilson |

| Solicitor for the Fourth, Fifth and Sixth Respondents: | Gilchrist Connell |

| Counsel for the Intervener: | The Intervener appeared in person |
ORDERS

| SAD 113 of 2020 |

| BETWEEN: | JAMES HILLIER

Applicant | |
| AND: | VICTORIA MARTIN

First Respondent

NORDBURGER OPERATIONS PTY LTD

Second Respondent

ERIK VARI PTY LTD (and others named in the Schedule)

Third Respondent | |
| | THOMAS PATRICK MARTIN

Intervener | |

| order made by: | MCELWAINE J |
| DATE OF ORDER: | 16 april 202 6 |
THE COURT ORDERS THAT:

1. The applicant is to produce for inspection by the Norman Waterhouse parties each document listed in Part 2 of the list of documents attached to his affidavit of 9 February 2026 and each document listed in the Kadlunga List of documents as served on 4 March 2026 save for:

(a) Documents 0818, 0819 and 905 in the Kadlunga List; and

(b) The redaction in whole or of such parts of those documents that do not record his instructions, any summary of his instructions by his lawyers and advice provided by his lawyers concerning the pleading of the statement of claim in District Court proceeding 266 of 2019 and the subsequent settlement of that proceeding.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

MCELWAINE J:

Overview

1 The applicant, James Hillier, in this proceeding makes various claims concerning ownership and control of a modest chain of hamburger restaurants known as Nordburger.  The primary respondent is his sister, Victoria Martin.  Very broadly, James contends that in late 2012, he agreed with Victoria and Andrew Craig, acting on behalf of his father Robert Craig and Erik Vary Pty Ltd (the Craig interests), to embark on the Nordburger joint venture by establishing and operating one or more outlets.  He further contends that the originally agreed interests were 50% for himself, 30% as to the Craig interests and 20% for Victoria.  At the time, Andrew Craig was the accountant for James.  Later, in March 2015 the interests were varied to respectively 40%, 25% and 35%.

2 James, either personally or through associated corporations, borrowed money from the Craig interests for various business ventures.  In 2017, the Craig interests commenced a proceeding in the District Court of South Australia against James and a related corporation to recover money lent of approximately $931,000.  That was proceeding 423 of 2017 (debt proceeding).  James defended the debt proceeding.  A defence that James pleaded was to the effect that at all times he placed his trust and confidence in Andrew Craig as his accountant and adviser and was unduly influenced by him to enter into various loan agreements and in consequence he sought to avoid the transactions.  That case was set out with more particularity in a statement of counterclaim.  In the debt proceeding, James engaged Randl e & Taylor as his solicitors.

3 On 13 March 2019, shortly prior to a mediation that was scheduled in the debt proceeding, James commenced a separate proceeding in the District Court of South Australia against Andrew Craig and his accounting firm William Buck SA Pty Ltd in proceeding 266 of 2019 (negligence proceeding) and sought damages in negligence, for breach of contract, for breach of fiduciary duty and/or for misleading or deceptive conduct concerning advice given by Andrew Craig, steps taken and steps not taken by him in relation to the setting up of a corporate vehicle and the establishment of a trust for the conduct of the Nordburger joint venture.  Randle & Taylor also acted for James in the negligence proceeding.

4 Andrew Craig caused Nordburger Pty Ltd to be incorporated on 14 March 2013 and Victoria was appointed as the sole director and only shareholder.  There is documentation in the present proceeding to the effect that Victoria signed documents relating to the incorporation of Nordburger Pty Ltd in her capacity as the trustee of the PIAH Family Trust, which was intended to be a discretionary family trust in common form and which included James and Victoria within the class of primary beneficiaries.  In the present proceeding, James contends that the PIAH Trust was never settled, with one of the consequences being that Victoria holds the assets of the joint venture (the shares in Nordburger Pty Ltd) on constructive trust for the participants.  That assumes importance because an aspect of his case against Victoria is that Andrew Craig advised that the PIAH Trust be deployed as a component of the joint venture.  In documentation in this proceeding there is reference to Andrew Craig as the putative settlor of the PIAH Trust.  Victoria denies the joint venture.

5 In contrast, in the negligence proceeding James pleaded amongst other things, that the PIAH Trust was settled with the consequence that as a beneficiary of it, he had no legal entitlement to dividends or other distributions from the Trust derived from the successful operation of Nordburger.  In consequence, he pleaded that the acts, errors and omissions of Andrew Craig caused him to suffer damage.  Specifically, he pleaded that in the outcome he did not have a legal interest in Nordburger Pty Ltd, he held none of the equity in that company and was deprived of the ability to convert, dispose or otherwise deal with his interest in the company to his financial benefit.

6 More specifically, James pleaded in the negligence proceeding as follows:

7.     As to Nordburger:

7.1.    the Plaintiff conceived the idea for Nordburger in or about December 2012;

7.2.    the first of the Nordburger restaurants was subsequently established at a site in Norwood in January 2013;

7.3.    fit-out works began at the Norwood site in February 2013, with the Norwood restaurant opening on 4 July 2013;

7.4.    three further sites have since opened in the Adelaide CBD, Hindmarsh and Parkside;

7.5.    the restaurant chain is owned and operated through a private company limited by shares ("Nordburger Pty Ltd");

7.6.    the Plaintiff directed and oversaw all aspects of the establishment, opening and operation of the Norwood restaurant;

7.7.    the Plaintiff contributed both capital and labour to the establishment, opening and operation of the Norwood restaurant;

7.8.    the Plaintiff provided services to Nordburger Pty Ltd in respect of the establishment, opening and operation of the further Nordburger sites referred to in paragraph [7.4] above;

7.9.     Nordburger Pty Ltd was incorporated on 14 March 2013; and

7.10.    the Plaintiffs sister, Ms Victoria Martin, is the sole director and shareholder of Nordburger Pty Ltd.

8.     As to the PIAH Family Trust:

8.1.     Ms Martin, as trustee for the PIAH Family Trust, holds all of the issued shares in Nordburger Pty Ltd;

8 .2.     the Second Defendant is the settlor of the Trust;

8.3.     Ms Martin is the sole appointor and trustee of the Trust;

8.4.     the Plaintiff is a beneficiary of the Trust, together with Ms Martin; and

8.5.     the Trust is discretionary.

…

11.     On 27 February 2013, by email to the Second Defendant, the Plaintiff sought:

11.1.    advice from the First and Second Defendants as to the " company vehicle set up for Nordburger "; and

11.2.     assistance from the First and Second Defendants with the implementation of the advice they provided regarding the ownership structure for Nordburger.

12.    During a meeting on l March 2013 and by email on 2 March 2013, the First and Second Defendants gave advice to the Plaintiff that:

12.1.     a company, Nordburger Pty Ltd, should be established to own and operate Nordburger;

12 .2.     Nordburger Pty Ltd should be owned and controlled by Ms Martin as its sole director and shareholder; and

12.3.     Ms Martin should own the shares in Nordburger Pty Ltd as the sole trustee for the discretionary PIAH Family Trust (as to which see paragraph [8] above).

…

16.     The ownership structure of Nordburger is contrary to the Plaintiffs best interests.

Particulars

1. l.     The Plaintiff does not legally own shares in Nordburger Pty Ltd.

16.2.     The Plaintiff holds none of the equity in Nordburger.

16 .3.     The Plaintiff has no legal entitlement to dividends or other distributions from the discretionary PIAH Family Trust.

…

26.    By reason of the acts and omissions of the First and Second Defendants, the Plaintiff has suffered loss.

Particulars

26.1.     As a consequence of the matters pleaded in paragraphs [7.9], [7.10], [8] and [11] to [16] above, the Plaintiff has no legal interest in Nordburger Pty Ltd.

26.2.     As a non-shareholder in Nordburger Pty Ltd, the Plaintiff:

26.2.1    holds none of the equity in Nordburger; and

26.2.2.    is deprived of the ability to convert, dispose or otherwise deal with his interest in Nordburger in a manner to his financial benefit .

26.3.     The Plaintiff is a beneficiary of the discretionary PIAH Family Trust and in this capacity has no legal entitlement to dividends or other distributions from the Trust as a consequence of the successful operation of Nordburger.

26.4.     As providers of Professional Services in the fields of accounting, business and taxation advice, it was reasonably foreseeable to the First and Second Defendants that structuring the ownership of Nordburger in such a way that the Plaintiff held no shares in the business:

26.4.1.     was against the Plaintiff's best interests; and

26.4.2.     would cause the Plaintiff financial loss.

7 Each of the District Court proceedings went to concurrent mediation and there was an agreed settlement.  There is a deed of settlement dated 2019.  In exchange for the releases expressed therein, James and his related corporation agreed to pay $550,000 in settlement of the debt proceeding by instalments.  Separately, the William Buck parties agreed to pay $100,000 as a contribution to settle the debt proceeding in exchange for releases from James to settle the negligence claim.

8 In the present proceeding, James has also joined Stephen Williams and his firm Norman Waterhouse Lawyers (Norman Waterhouse parties) who acted for Victoria when disputes arose between her and James concerning the Nordburger business.  At this point it should be noted that Victoria is married to Thomas Martin.  Thomas is an admitted lawyer and, at the time, held a practising certificate.  James contends that the Norman Waterhouse parties are liable as participants in a dishonest plan that was implemented from April 2016 to enable Victoria to take control of the Nordburger business and assets held within the joint venture from himself and the Craig interests and thereafter to claim ultimate economic ownership of the assets for herself.  That claim is variously framed as Barnes v Addy knowing assistance, conspiracy and/ or inducing or procuring a breach of trust.  The Norman Waterhouse parties deny these claims.

9 An aspect of the dishonest plan that James pleads relates to the District Court proceedings.  In the current iteration of the amended statement of claim, James pleads that between January 2017 and about May 2018, he believed that he was compelled to defend the debt proceeding and conducted his case, by adopting the instructions, advice and materials supplied by Thomas and the Norman Waterhouse parties.  There is no reference in the amended statement of claim to the negligence proceeding.

10 However, the Norman Waterhouse parties in defence plead the negligence proceeding.  They plead that in the negligence proceeding James affirmed that the vehicle for the establishment and operation of the Nordburger business included the incorporation of Nordburger Pty Ltd with Victoria as the sole director and shareholder and that she would hold her shares on the terms of the PIAH Trust and where the parties intended that Victoria and James would be included within the class of specified beneficiaries.  Further, James pleaded that in fact the PIAH Trust was settled.  The effect of this defence is that James’ claims against Victoria and the Norman Waterhouse parties in this proceeding are inconsistent with his formulation of the settlement of the negligence proceeding pursuant to which he obtained a financial benefit.

11 In reply, James addresses the inconsistency defence by admitting that he claimed damages against William Buck because of his advice and the steps that he took “did not reflect any proper beneficial interest” that he had in the Nordburger business.

The privilege claims

12 This background frames the present issue.  James has produced for inspection parts of the Randle & Taylor files relevant to the District Court proceedings.  The solicitor who primarily advised James, Peter Borecki, is deceased.  James maintains various claims of legal professional privilege over some of the documents within the files.  The claims are articulated in two documents.  First, an affidavit made by James on 9 February 2026.  James made that affidavit in compliance with an order that I made on 2 February 2026 which required him to make, file and serve an affidavit verifying a list of documents relevant to the allegations made in the negligence proceeding.  The schedule to the affidavit is divided into two parts.  Part 1, sections A and B lists documents in the control of James which are produced without objection.  Part 2 lists documents in the control of James and which he objects to produce for inspection on the grounds of legal professional privilege.  There are 16 documents over which the privilege claim is asserted.  The claim is expressed to be made pursuant to ss 118 and 119 of the Evidence Act 1995 (Cth), which is incorrect as the Act does not apply to pre-trial discovery.  The error is inconsequential as the common law legal principles do not differ: Mastercard Asia/Pacific Pty Ltd v A ustralian C ompetition and C onsumer C ommission [2026] FCAFC 37 at [43].

13 Second, following the practice in South Australia, a Kadlunga List (Kadlunga Proprietors v Electricity Trust of South Australia (1985) 39 SASR 410) was served with correspondence from James’ solicitor dated 4 March 2026.  The Kadlunga List is concerned with the whole of the Randle & Taylor files in each District Court proceeding and the solicitor’s letter states that the list articulates privilege claims “over and above” the claims made in the affidavit of 9 February 2026.

14 By way of example, the first document in the affidavit over which privilege is asserted is an email dated 22 February 2019 from Mr Borecki to Sally Heidenerich who was then engaged as James’ counsel.  The description which founds the privilege claim is that the email contains:

[R]elevant information and attachments for consideration by Counsel in connection with an anticipated legal proceeding against William Buck SA Pty Ltd and Andrew Craig.

15 And the privilege claim that James asserts is that this is a confidential communication between himself, his solicitor and counsel made for the dominant purpose of being provided with professional legal services relating to an anticipated legal proceeding in which he may be a party.

16 During submissions, Mr Whitington KC for James stated, without objection, that all documents that were the subject of a privilege claim relating to the debt proceeding have now been produced.  Thus, I am only concerned with privilege claims relevant to the negligence proceeding.  However, it does not follow that the affidavit verified list is now uncontentious as documents 2 to 5 and 7 to 16 by description are relevant to the negligence proceeding.

17 An example from the Kadlunga List, is document 1017 dated November 2018 described as:

Memorandum of Advice prepared by Walker on “Claim In Respect of the Ownership of Nordburger Pty Ltd”.

18 The basis for the privilege claim is:

Confidential communication between the applicant’s solicitor and counsel made for the dominant purpose of the applicant been provided with legal advice.

19 There are difficulties with the description of the document and the privilege claim in determining whether the advice is concerned with the negligence proceeding or more generally which is one of the distinctions drawn by Mr Whitington in submissions.  That is, even if it is found that James has impliedly waived privilege over instructions given to his lawyers and advice received in relation to the negligence claim, the waiver does not extend to instructions and advice concerning his rights and prospects of success in this proceeding.  Accordingly, if that distinction holds, any production order must take account of it.

20 The Norman Waterhouse parties by Notice to Produce dated 19 March 2026, required James to produce for inspection all the documents set out in Part 2 of the schedule to the 9 February 2026 affidavit and all documents the Kadlunga List save for documents 0818, 0819 and 905 (already discovered) and Tab 86 (Vol 3) (privilege not disputed).  James has not produced documents in response to that notice.  His solicitor in correspondence of 25 March 2026 set out the basis for his objection.  In substance, that there has not been a waiver of privilege.

21 Separately, Thomas by interlocutory application dated 10 April 2026 seeks orders that James produce all of the documents in Part 2 of the schedule to the 9 February 2026 affidavit and each document mentioned in the Kadlunga List.  James resists the interlocutory application on various grounds, including delay, that Thomas lacks standing as an intervener and, in any event, the privilege claims are properly made and maintained.  I have put that application aside as it is convenient to deal first with the Notice to Produce, as my determination in respect of it will dispose, or largely dispose, of the separate interlocutory application.  Accordingly, I do not yet know if Thomas disputes the submission that privilege is not maintained over documents relevant to the debt proceeding.  I may be required to return to the interlocutory application of Thomas.

22 The question is one of implied waiver at the discovery stage.  The applicable principles were settled by the Full Court in Mastercard.  What is relevant in this case is whether James is acting inconsistently, informed by considerations of fairness, by maintaining his privilege claim over portions of the Randle & Taylor files considering the matters pleaded and raised in his served but not read affidavit evidence.

23 The relevance of what occurred in the debt proceeding is not in dispute.  In the present matter James contends that there was an agreed joint venture with specified interests from commencement and that later there was an agreed variation of the percentages.  One of the issues to be determined is squarely put in issue in the defence of the Norman Waterhouse parties in the pleading at [18.1] – [18.18.] and [18.22]:

18.     The NW Parties do not know and cannot admit deny paragraph 18, and say:

18.1     the case pleaded by the Applicant is inconsistent with the instructions that they received from the First Respondent and contemporaneous documentation provided to them while acting for the First Respondent;

18.2     consistent with their professional obligations, the NW Parties were obliged to act upon the instructions provided to them by the First Respondent;

18.3     further or in the alternative, those instructions were true and correct;

18.4    the NW Parties therefore deny paragraph 18 to the extent that the factual matters asserted are relied upon as founding a claim against the NW Parties or that it is alleged that the NW Parties knew the matters alleged in paragraph 18 as a matter of fact in the terms asserted by the Applicant;

The NW Parties further say that on their instructions and as reflected in the contemporaneous documents:

18.5     On its establishment and at all material times until December 2019, the Nordburger business was conducted by Nordburger Pty Ltd (NPL).

18.6     NPL was incorporated on 14 March 2013.

18.7     The First Respondent was the sole director and shareholder of NPL on its incorporation.

18.8     The First Respondent was recorded in the records of ASIC as beneficial owner of the NPL shares.

18.9     On establishment of NPL it had been intended that the First Respondent hold shares in NPL non-beneficially as trustee of an intended trust called the Hillier PIAH Trust.

18.10     The Hillier PIAH Trust was intended to be a discretionary family trust settled by Craig with the Applicant and the First Respondent as specified beneficiaries.

18.11     The Hillier PIAH Trust was not in fact settled but the use of the Hillier PIAH Trust to hold the NPL shares, with the First Applicant to be trustee of the Hillier PIAH Trust and sole director of NPL, was the intention of the Applicant and Craig.

Particulars

18.11.1     Email from Craig to the Applicant dated 2 March 2013.

18.11.2    Email from the Applicant to Craig dated 4 March 2013.

18.12     At the time that NPL was established, NCM owed substantial tax debts.

The NW Parties say further that consequent upon the matters pleaded in 18.5 to 18.11:

18.13     For Craig or the Craig Interests to have an interest in NPL was inconsistent with (a) the use of the Hillier PIAH Trust as the ownership structure for shares in NPL; (b) Craig being the intended settlor of the Hillier PIAH Trust and therefore excluded as a beneficiary of the Hillier PIAH Trust.

18.14    For the Applicant to have any interest in the shares of NPL other than the ordinary rights accruing to the discretionary object of a trust is inconsistent with the Applicant’s express agreement to NPL being incorporated with the Applicant as its sole director and shareholder, and with the shares held in the Hillier PIAH Trust.

18.15    For either the Applicant or Craig or the Craig Interests to have any interest in the business conducted by NPL or the assets of NPL (as opposed to the shares of NPL) was inconsistent with NPL having a separate corporate personality at law and the business being conducted by NPL in its own right.

18.16     The Applicant understood and intended for the shareholding and directorship in NPL to be structured as pleaded in paragraphs 18.5 to 18.11.

18.17    It can be inferred that the Applicant did not take a role as a director in NPL because he sought to avoid the risk of personal liability as a director for a risky venture but instead sought to impose that risk on his sister, the First Respondent.

18.18     The Applicant did not take a documented ownership interest in NPL because NCM Pty Ltd had substantial outstanding taxation liabilities that he was at risk of personal liability for, such that he wished to avoid being recorded as owner of potentially valuable assets.

…

18.22     On 13 March 2019, the Applicant commenced proceedings against Craig and his former firm, William Buck SA Pty Ltd in the District Court of South Australia (Action DCCIV 266 of 2019) (Nordburger Proceedings) in which the Applicant affirmed that the ownership of the Nordburger business was as pleaded in paragraphs 18.5 to 18.11 above.

Particulars

18.22.1     The Statement of Claim in the Nordburger Proceedings dated 13 March 2019 alleged that (a) the Nordburger business was owned by NPL (at [7.5]); (b) the shares in NPL were held by the First Respondent as trustee of the Hillier PAIH Trust (at [8]); (c) this structure was adopted on advice from Craig (at [12]-[15]); (d) that advice was negligent as it did not provide the Applicant with a legally enforceable interest in the Nordburger business.

18.22.2     By email dated 13 March 2019 from the Applicant to his then solicitor Mr Peter Borecki, sent before the Statement of Claim was filed later that day, the Applicant stated “I have had a good read of that statement of claim. That all seems fairly straightforward. Nothing factually incorrect.”

24 James, in reply pleads at [9]:

9.     As to paragraph 18.22 of the NWL Further Amended Defence, the Applicant:

9.1.     admits that on 13 March 2009 proceedings were commenced by the Applicant against Craig and his former firm, William Buck SA Pty Ltd, in the District Court of South Australia (Action DCCIV 266 of 2019) (Nordburger Proceedings);

9.2.     says that the Nordburger Proceedings were filed on the eve of the mediation of the District Court proceedings but were not formally served on Craig or his former firm;

9.3.    says that by the Nordburger Proceedings, the Applicant claimed damages as against Craig and his former firm as a result of negligent advice given by Craig in connection with the structure of the interests in the Nordburger enterprise because the structure advised (and later implemented) did not reflect any proper beneficial interest of the Applicant in the Nordburger business;

9.4.     denies the summary of the Statement of Claim pleaded in paragraph 18.22.1 of the NWL Further Amended Defence and relies upon the terms of the Statement of Claim filed in the Nordburger Proceedings for their full effect;

9.5.     admits that the Applicant sent an email dated 13 March 2019 as referred to in paragraph 18.22.2 of the NWL Further Amended Defence;

9.6.     says that it was it was common ground between the First Respondent, Martin, the Applicant and Craig that the structure for holding the Nordburger businesses was fundamentally flawed in that it did not take into account the interests, legal and beneficial, of the parties to the Nordburger Joint Venture and repeats and relies on paragraph 32 of the 6ASOC in that regard; and

9.7.     otherwise denies paragraph 18.22.

25 Implied waiver does not arise from the pleading of this issue by the Norman Waterhouse parties: Mastercard at [45].  Nor is it usually sufficient that James in his reply pleading has joined issue: Mastercard at [46].  However, James goes further in his affidavit evidence.

26 James in his affidavit of 17 October 2025, deposes as follows:

99.     A mediation with the Craig Interests in relation to the District Court proceedings took place on 21 March 2019.

100.     On the eve of the mediation, separate proceedings against Andrew Craig and William Buck were filed on my behalf, but the proceedings were not served on Andrew Craig or William Buck.

101.     Those proceedings claimed damages against Andrew Craig and William Buck as a result of negligent advice in connection with the structure of the interests in the Nordburger enterprise. By way of background, Andrew Craig had prepared a discretionary trust deed in connection with the proposal referred to at TA [198] - [207]. That proposal never eventuated, but when it came to advising on the corporate vehicle to operate the first Nordburger restaurant, he suggested that we utilise that trust in spite of the fact that it was not settled. At that time, I did not pay close attention to Andrew Craig's advice. I had always trusted Andrew Craig's professional advice and I had no cause to anticipate that my sister, Victoria, would at a later date seek to exploit my vulnerability through this structure. However, by March 2019, I realised that Mr Martin, Mr Williams and Victoria were doing just that.

102.     Amongst other things, the claim stated that Andrew Craig's advice was contrary to my best interests insofar that I did not legally own shares in Nordburger Pty Ltd. The claim also disclosed that I:

102.1     conceived the idea for Nordburger in or about December 2012;

102.2     directed and oversaw all aspects of the establishment, opening and operation of the Norwood restaurant; and

102.3     contributed both capital and labour to the establishment, opening and operation of the Norwood restaurant.

103.     The proceedings were ultimately dismissed by consent following the mediation. The proceedings were a last-minute attempt by me to obtain some form of compensation for the negligent advice of Andrew Craig in failing to set up the Nordburger business in a way that reflected the true position of the venturers.

104.     The mediated outcome of the District Court proceedings against me required me to pay $550,000 to the Craig family and their entities, with a contribution of $100,000 from Andrew Craig and William Buck in relation to the negligence claim the subject of the separate proceedings issued by me.

105.     Having sat through the mediation with the Craig Interests, I can say that had it not been for the threats made to me at the 29 April 2016 meeting and the obligations imposed on me pursuant to the Deed Poll (as deposed to above), I would have been able to continue to communicate with the Craig Interests and pay down my debts to the Craig Interests in the ordinary course of business, as I had in the past. I believe that my relationship with the Craig Interests would have remained intact. In my opinion, had I been able to continue to communicate with the Craig Interests in this way, the destructive District Court litigation, for which I paid Randle & Taylor approximately $420,789 in legal fees, would not have occurred. I also hold the view from my negotiations with the Craig Interests at the mediation that any negotiated settlement would have been a fraction of the final amount had communications with the Craig Interests been possible, and proper account given to my financial contributions to our various ventures. Not long after the mediation, I relayed this view to Victoria by email dated 11 July 2019, which is referred to at TA [551].

106.     By the express terms of the Settlement Deed, to which Robert Craig and the Craig Interests were parties, an express reservation and exception to releases from claims was made for claims by the Craig Interests' various entities engaged in the conduct of the Nordburger businesses, including Victoria.

27 The issue is whether, before James’ affidavit is read, there has been an implied waiver of privilege over the documents in Part 2 to the schedule to the 9 February 2026 affidavit and in the Kadlunga List because James has either put his state of mind in the negligence proceeding in issue as to whether there was a joint venture as now asserted and/ or whether he has opened for scrutiny that subject-matter: Mastercard at [45], [65] – [66].

28 The statement of claim in the negligence proceeding is signed and certified by Mr Borecki as “put forward in accordance with the instructions of [James]…”.  What is known from an email exchange that is not the subject of a claim for privilege is that the draft statement of claim was provided to James for approval.  Ms Walker, who was then engaged as counsel, emailed an amended draft statement of claim to Mr Borecki on 12 March 2019, together with a draft advice which Mr Borecki forwarded to James the next day.  Approximately 45 minutes later, James replied to Mr Borecki:

Hi Peter….

I’ve had a good read of that statement of claim.

That all seems fairly straight forward. Nothing factually incorrect.

Cheers

29 In this case there is a joining of the issue pleaded by the Norman Waterhouse parties that James “affirmed” the ownership structure of the Nordburger business in the manner in which he pleaded his case in the negligence proceeding.  James does not simply deny that contention in his reply.  He goes further by positively asserting the structure advised by Andrew Craig did not reflect his beneficial ownership in the Nordburger business and that it was common ground between himself, Victoria, Thomas and Andrew Craig that the structure for holding the business assets was fundamentally flawed and did not take into account the legal and beneficial ownership interests of the parties to the joint venture.  To establish those matters, James in his affidavit states that Andrew Craig prepared the discretionary trust deed, advised on a corporate vehicle to operate the business and suggested that the PIAH Trust structure be utilised despite the fact that the trust had not been settled.  James further states that he did not pay close attention to that advice, and always trusted Andrew Craig as his professional adviser.  He further states that the negligence proceeding was a last-minute attempt by him to obtain compensation from Andrew Craig in “failing to set up the Nordburger business in a way that reflected the true position of the venturers”.

30 In my view, James by his pleading and service of that affidavit evidence has impliedly waived the instructions he provided to Randle & Taylor, and to his counsel, and the advice received concerning the subject-matter of what was the agreed structure for the Nordburger business, who were the participants and what were the agreed interests.

31 Why may be shortly explained.  There are three central areas of inconsistency.  First, James positively asserted in the negligence proceeding that Andrew Craig as the settlor established the PIAH Trust and caused Victoria to be appointed as the trustee with the consequence that this structure was contrary to his best interests.  In particular, as a person within the class of primary beneficiaries of the discretionary trust he did not hold any equity in Nordburger Pty Ltd and had no legal entitlement to dividends or other distributions from the trust.  In contrast, in this proceeding James contends that the PIAH Trust was never settled and that Victoria acquired the shares in Nordburger “purportedly” as trustee for the PIAH Trust but in fact on the terms of the joint venture agreement.

32 Second, there is no reference in the statement of claim in the negligence proceeding to the overarching joint venture that James relies on in this matter.  If James is correct in the joint venture contention, then it has the effect, according to the submissions of Mr Whitington, that the participants remain bound by the allocation of the joint venture interests and which has not been displaced by the conduct of the business through Nordburger Pty Ltd with Victoria as the sole shareholder and director.  On that case, Victoria holds the shares on constructive trust for the joint venture participants.

33 That is not the limit of this point.  If James is correct in his evidence in this matter and the joint venture contention is made out, then the Craig interests are co-joint venturers as to either the original agreed 30% share or the later varied 25% share.  Andrew Craig at all times in his dealings with James represented the Craig interests.  But James did not plead in the negligence claim that the Craig interests were participants in the business venture that he pleaded at [7] of the statement of claim in the negligence proceeding.

34 Third, James in answer to the contention of the Norman Waterhouse parties that he affirmed the business structure in his pursuit of Andrew Craig and William Buck, contends that it was common ground between the participants that the implemented structure was flawed and did not take account of the terms of the joint venture and the legal and beneficial consequences flowing from it.  He then says in his affidavit that he commenced the negligence proceeding to obtain some compensation for the failure of Andrew Craig to document the joint venture “in a way that reflected the true position of the venturers”.  That opens to scrutiny what James told his lawyers at the time because in this proceeding he makes an assertion as to what was the “true position” of the joint venturers whilst maintaining that his instructions to his lawyers and the advice received on that very topic in the negligence proceeding remains confidential.  The “true position” contention was not mentioned in the negligence proceeding.  If that was always the case, then the asserted negligence of Andrew Craig is unlikely to have been of any material consequence because Equity would hold the joint venturers to the agreed terms: for example, Jones v AAI Ltd t rading as Vero Insurance [2016] FCA 1244 at [69] – [70], Allsop CJ. But, in the negligence proceeding James contended that he suffered damage by reason of the conduct of Andrew Craig in that he had no equity in the Nordburger business, was deprived of the ability to convert or deal with his interest to his financial benefit and had no legal entitlement to share in the profits derived from the successful operation of the business.

35 Man n v Carne ll [1999] HCA 66; (1999) 201 CLR 1 at [29] requires identification of whether the conduct, in this case all the conduct I have set out, is inconsistent with maintaining confidentiality of James’ version of the agreement to commence and operate Nordburger.  James’ evidence in this matter concerns the fact of what was the structure of the business of Nordburger that was agreed between himself, Victoria and the Craig interests in terms of the joint venture, which is inconsistent with the pleaded claim in the negligence proceeding in each of the three respects that I have identified.

36 That is precisely the type of subject-matter inconsistency identified in Mastercard at [61] – [64], including the endorsement of the reasoning of the primary judge in Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd (No 3) [2025] FCA 1043 at [33], where Wigney J stated:

More significantly, where the inconsistency resulting in the waiver is said to arise from the privilege holder making assertions about a particular topic or subject-matter and at the same time maintaining that advice received on that topic or subject-matter remains confidential, it may be appropriate to order production of otherwise privileged documents which refer or relate to that subject-matter.

37 Similarly, James in my view has engaged in conduct inconsistent with the maintenance of his confidentiality claims over his instructions to his lawyers, any summary of those instructions prepared by his lawyers and any advice relating to those instructions concerning the pleading of the claim in the negligence proceeding because he makes assertions in his evidence that are inconsistent with the claim he brought in the negligence proceeding and where it is known that he approved the facts as pleaded in the draft statement of claim.  That opens for scrutiny the subject-matter of what he instructed his lawyers was the agreement to conduct the Nordburger business.  The consequential forensic unfairness arises from James’ attempt to shield his earlier account of the establishment of the Nordburger business from scrutiny.

38 That said, I accept the submission of Mr Whitington that implied waiver does not extend to instructions given to Randle & Taylor or counsel concerning claims that James may have concerning future claims against Victoria.  That subject-matter has not been put in issue.

39 I record that after I reserved my decision yesterday, Sykes Bidstrup solicitors for James emailed my chambers to the effect that privilege is no longer maintained for document 1017 in the Kadlunga List.

40 The order that is appropriate is one that carves out from the Notice to Produce documents concerned with future claims that James may have against Victoria and confines production to the issues in the negligence proceeding. I order as follows:

1. The applicant is to produce for inspection by the Norman Waterhouse parties each document listed in Part 2 of the list of documents attached to his affidavit of 9 February 2026 and each document listed in the Kadlunga List of Documents as served on 4 March 2026 save for:

(a) Documents 0818, 0819 and 905 in the Kadlunga List; and

(b) The redaction in whole or of such parts of those documents that do not record his instructions, any summary of his instructions by his lawyers and advice provided by his lawyers concerning the pleading of the statement of claim in District Court proceeding 266 of 2019 and the subsequent settlement of that proceeding.

41 I will now hear submissions as to the time for compliance with the order and whether there is any objection to production of the documents to Thomas Martin in his capacity as intervener.

| I certify that the preceding forty-one (4 1) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine. |
Associate:

Dated:    20 April 2026

SCHEDULE OF PARTIES

| | SAD 113 of 2020 |
| Respondents | |
| Fourth Respondent: | NORMAN WATERHOUSE LAWYERS (A FIRM) |
| Fifth Respondent: | NORMAN WATERHOUSE LAWYERS PTY LTD |
| Sixth Respondent: | STEPHEN BRADLEY WILLIAMS |